Juma Waryoba Kisangure Vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM; JUMA. C.3., LEVIRA. 3.A. And MASOUD. J.A.l CRIMINAL APPEAL NO. 114 OF 2022 JUMA WARIOBA KISANGURE................................................................. APPELLANT VERSUS THE REPUBLIC.................................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Hon. Mahimbali, J.) dated 10th day of Decern ber, 2021 in Criminal Sessions Case No. 50 of 2021 JUDGMENT OF THE COURT 10th & 17* March, 2025 JUMA, C.J.: The appellant Juma s/o Warioba @ Kisangure wascharged with the offence of Murder contrary to sections 196 and 197of the Penal Code, CAP 16 R.E. 2002. The particulars of the offence were that on 9 January 2020, at Wegero Village, within Butiama District in Mara Region, he murdered his wife, Devota d/o Mtongori @ Boniphace. When asked to plead in the High Court at Musoma, the appellant replied that he had no malice aforethought when he killed the deceased. The trial court entered a plea of NOT-GUILTY. i The matter proceeded to trial before the High Court at Musoma, where the trial court convicted him in a Judgement, which Mahimbali, J. delivered on 10 December 2021 and sentenced to suffer death by hanging under section 197 of the Penal Code. Four prosecution witnesses who testified for the prosecution were Benard Alphoxard Nyamanda (PW1), a medical doctor at Butima District Hospital who examined the deceased's body and prepared a post-mortem examination report (exhibit PEI), Daudi Kisangure (PW2), the appellant's uncle, Detective Police Sergeant Nelson (PW3) who recorded the appellant's cautioned statement (exhibit PE2), and Prisca Mkeha (PW4) a primary court magistrate who as a justice of the peace recorded the appellant's extra­ judicial statement (exhibit PE3). The appellant testified in his defence and did not call additional defence witness to support him. The chain of events leading up to the appellant's arrest traces back to 9 January 2020 at 21:00 hrs. The appellant's uncle, PW2, was watching a soccer match on television when the appellant called him to break the sad news that he, the appellant, had killed his wife. By the time PW2 arrived at the crime scene, the appellant had disappeared. PW2 saw the deceased body on the floor, it had cut wounds on the abdomen and hands. PW2 asked some young people to move into the night to search for and apprehend the appellant. It was not until the following morning that PW2 received an update on the arrest of his nephew, the appellant. PW1 was on 10 January 2020 at Kiagata Health Centre when he received a call from the police asking him to proceed to a murder scene at Wegero village to perform a postmortem examination of a deceased body. Several people had already gathered around one family home when PW1 arrived. PW1 saw the body of a deceased female lying down, covered in a blanket with blood all over her body. PW1 asked to remain with a few villagers to witness him perform a medical examination. The deceased had wounds on her neck, chest, abdomen, and protruding intestines. From his observations, PW1 determined that a sharp object caused the slash wounds, and the loss of blood caused the deceased's death. PW1 prepared a postmortem medical examination report, which he tendered as evidence (exhibit PEI). Detective Sergeant Nelson (PW3) testified that at around 08:00 hrs on 10 January 2020, the Police officer in criminal investigations in Butiama District, ASP Godfrey Lumbagi, assigned him the task of investigating the murder of the deceased. That same day, PW3 received further updates on the appellant's arrest and his transport to Musoma Referral Hospital for treatment. PW3 travelled to Musoma on 11 January 2020, interrogated and recorded the appellant's cautioned statement (exhibit PE2) that same day. Later, on 14 January 2020, around 12:20, the police took the appellant to (PW4), a Justice of the Peace, who recorded the appellant's extra-judicial statement (exhibit PE3). In his defence, the Appellant (DW1) recalled the day his wife died. He returned home around 17:00 hrs and immediately went out again to buy fish, which his wife needed to prepare for dinner. After purchasing the fish, a commuter motorcyclist took the fish home to his wife while he remained behind drinking alcohol till around 21:00 hrs when he returned home and asked for food. According to DW1, his wife refused to serve his dinner while insulting him. His wife retorted that he should ask her sibling, Irene, to serve him dinner instead. His wife accused him of spending the evening out drinking alcohol and having a good time with other women. Although Irene served him his dinner, his wife continued to harangue him when he asked her to bring a knife to unpeel avocado fruit. The appellant testified that he snatched the knife from his wife's hand. After eating his dinner, he went to bed. Later, a sound from his mobile text message aroused him from sleep. It was at that moment he noticed bloodstains on the phone and was surprised to see his wife covered up in blood as she accused him of killing her. It was at that moment he called his uncle PW2. The trial judge found that the evidence on record proved the appellant committed the offence of murder by the unlawful killing of the deceased with malice aforethought. He sentenced him to suffer death by hanging. The appellant filed his first memorandum of appeal on 14 July 2022, containing seven grounds of appeal. He followed up with a Supplementary Memorandum of Appeal containing five grounds, which he filed on 25 July 2023. On the appellant's behalf, Mr. Leonard Elias Magwayega, learned advocate, filed another Supplementary Memorandum of Appeal on 3 March 2025 containing three grounds of appeal. At the hearing of this appeal on 10 March 2025, a learned advocate, Mr. Leonard Elias Magwayega, appeared for the appellant. Learned Senior State Attorneys, Mr. Erasto Anosisye and Ms. Sabina Choghoghwe, represented the respondent Republic. The learned advocate for the appellant informed us that following his consultations with the appellant, he will abandon the grounds of appeal in the memorandum of appeal and supplementary memorandum of appeal, which the appellant filed on 14 July 2022 and 25 July 2023. He would restrict his submissions to the three grounds in the supplementary memorandum of appeal he filed on 3 March 2025. The first ground faults the trial judge for relying on the evidence of PW2, PW3, and PW4, which he described as unfounded and too weak to prove the element of malice aforethought in the charge of murder against the appellant. Secondly, the appellant faults the trial judge for failing to comply with the laws and procedures before admitting his cautioned statement (exhibit PE2) and extra-judicial statement (exhibit PE3). He urged us to discard the cautioned and extra-judicial statements from the record of appeal. On the third ground, the appellant claims that the prosecution failed to prove its case against him beyond reasonable doubt. Submitting the first and second grounds together, Mr. Magwayega referred us to pages 152 and 153 of the record of appeal, and faulted the trial judge for concluding that the evidence proved that the appellant killed the deceased with malice aforethought. To support his stance that the prosecution did not prove malice aforethought, Mr. Magwayega questioned the probative value of the cautioned statement (exhibit PE2) and the extra­ judicial statements (exhibit PE3), which formed the basis of the trial judge's conclusion that prosecution evidence proved the appellant had the intention to kill the deceased. Mr. Magwayega also faulted the trial judge for relying on the testimonies of witnesses who were not at the crime scene to prove malice aforethought. He pointed out that the evidence of the medical doctor (PW1), PW2, PW3, and PW4 was not weighty enough to prove that the appellant had malice aforethought when he killed the deceased. Mr. Magwayega also faulted the trial judge for relying on the testimonies of witnesses who were not at the crime scene to prove malice aforethought. He pointed out that the evidence of the medical doctor (PW1), PW2, PW3, and PW4 was not weighty enough to prove that the appellant had malice aforethought when he killed the deceased. The learned advocate branded the evidence of his uncle, PW2, who rushed to the scene of the crime, as hearsay, which does not tie the appellant to the killing of the deceased. Mr. Magwayega played down the evidential weight of the cautioned statement. He argued that the appellant's confused state of mind resulted incriminating himself through confessional statements. The learned advocate submitted that it was unsafe to rely on confessional statements he had retracted as a basis of proof of malice aforethought. He referred to a sentence in the cautioned statement where the appellant portrayed a confused mind when he recalled how, after killing his wife, the appellant called his near relatives to inform them what he had done and suggested someone had bewitched him. Mr. Magwayega gave us reasons why we should expunge the appellant's cautioned statement from the record of the evidence. Firstly, the trial judge admitted as evidence the cautioned statement, which PW3 recorded outside the four hours the law prescribes. Secondly, it was not for the trial judge to justify the recording of the appellant's cautioned statement in Musoma Referral Hospital. PW3 should have explained why he did not record the statement within four hours of the appellant's arrest by the police. Thirdly, when PW3 recorded the appellant's cautioned statement in a crowded hospital ward, the appellant was still ill and reeling from a surgical operation. The resulting statement was not voluntary. Fourthly, two police guards at the appellant's hospital bed vitiate the cautioned statement, which PW3 recorded in the presence of his police colleagues. Just as Mr. Magwayega urged us to expunge the appellant's cautioned statement, he similarly gave several reasons why he thinks the appellant's extra-judicial statement (exhibit PE3), which the Justice of the Peace (PW4) recorded should meet a similar fate, discarded from the record of this appeal. Firstly, the police took the appellant to the justice of the peace (PW4) seven days after recording his cautioned statement without explaining the delay. He referred us to our decision in MASHIMBA DOTTO @ 8 LUKUBANIJA V. R., CRIMINAL APPEAL NO. 317 OF 2013, where we discussed the allegation of torture before the police sent the appellant to a Justice of the Peace six days after recording a cautioned statement. Secondly, the learned advocate urged us to expunge the extra-judicial statement because the Justice of the Peace did not sign or initial every page as per the Chief Justice's Guidelines for Justices of the Peace. Thirdly, Mr. Magwayega wondered why the Justice of the Peace failed to ask the appellant whether he requested an audience with the Justice of the Peace or the police took him straight from his hospital bed to the Magistrate to record the extra-judicial statement. He cited several decisions of the Court, including MPEMBA MASHENENE V. R (CRIMINAL APPEAL NO. 577 OF 2015 [2018] TZCA 568 (11 JULY 2018 TANZLII), to support his urging us to expunge the extra-judicial statement from the record of appeal. Mr. Magwayega next argued that after expunging the cautioned statement and the extra-judicial statement from the record of appeal, the remaining evidence of PW2, PW3, and PW4 lack credibility to prove that the appellant had malice aforethought when he killed the deceased. Following a brief interaction with the Court, the learned advocate for the appellant urged us to expunge the evidence of the Justice of the Peace (PW4) for violating the provisions of section 289 (1) of the CPA because the prosecution did not in the committal proceedings list him as one of its witnesses. The prosecution neither read his statement at committal proceedings nor gave the appellant or his advocate a reasonable notice in writing of the intention of the prosecution to call PW4 as a witness. Mr. Magwayega rounded up his submissions by insisting that the weakness of the appellant's defence evidence should not form the basis for his conviction for murder. Because the prosecution failed to prove the case against the appellant beyond reasonable doubt, we should allow the appeal and set the appellant free. And, in the alternative, Mr. Magwayega submitted, should the Court decide to convict the appellant for a lesser offence of manslaughter, it should consider the time he served in prison since 2020 and set him free. At the outset of his reply submissions, Mr. Erasto Anosisye, learned Senior State Attorney, opposed the appeal and supported the appellant's conviction by the trial court for murder and the death sentence by hanging. Mr. Anosisye began with grounds one and two of appeal whether the evidence proved malice aforethought (intention to kill). The learned Senior State Attorney highlighted the evidence of the medical officer (PW1) as an instance that manifests the appellant's intention to kill. PW1 testified how 10 the body of the deceased lay covered full of blood. Examination of the deceased body disclosed wounds on the neck, chest, abdomen, and intestines protruding out. The scars had sharp edges, suggesting cuts from a sharp object. Mr. Anosisye submitted that the extent of the injuries PW1 observed was not only consistent with PWl's report on post-mortem examination (exhibit PI) but proved what was in the appellant's mind, that is, intention to kill within the meanings of section 200 of the Penal Code, and also within the circumstances listed in the case of ENOCK KIPELA VS THE REPUBLIC (CRIMINAL APPEAL 150 OF 1994) [1999] TZCA 9 (10 JUNE 1999 TANZLII) as manifesting intention to kill.. Mr. Anosisye submitted that the weapon which the appellant used, the number of wounds he inflicted on the deceased's body, his conduct to run away manifested the mind of a person who knew what he did was unlawful. The learned Senior State Attorney did not agree with the suggestion by Mr. Magwayega learned advocate for the appellant that expunging the appellant's cautioned statement will deny the prosecution evidence to prove malice aforethought (intention to kill). Even if the Court expunges the cautioned statement, Mr. Anosisye argued, there still will be the evidence of PW1 and the report on post-mortem examination to prove malice aforethought. li The learned Senior State Attorney disagreed with the suggestion that when the appellant was in a confused mindset when the police recorded his cautioned statement. He submitted that the appellant had lucid mind when killed the deceased. That night, when he arrived home, the deceased gave him food, he asked her to bring a knife, which he used to violently stab the deceased. Mr. Anosisye submitted that the case of OSCAR JOSIAH VS REPUBLIC (CRIMINAL APPEAL 441 OF 2015) 2016 TZCA 670 (26 FEBRUARY 2016 TANZLII), on which the learned advocate for the appellant relied, is distinguishable because it was not an appellant with a confused mind confessing to a crime. OSCAR JOSIAH VS REPUBLIC (supra) was a case about the discovering that the cautioned statements of the accused persons were exculpatory. One accused cannot use against the other. He added that in our present appeal, the cautioned statement is that of a person with a lucid mind who knew what he was doing was unlawful. The learned Senior State Attorney addressed Mr. Magwayega's argument that, we should expunge from the record of appeal the appellant's cautioned statement because PW3 recorded it outside the four hours section 50 (2)(a) of the Criminal Procedure Act Cap 20 (the CPA) prescribes. He referred to page 46 of the record where PW3, who 12 investigated the murder, sufficiently explained the delay to interview the appellant within four hours of his restraint by the police. He submitted that civilians sent by PW2 arrested the seriously injured appellant on 10 January 2020. They took him to Kiagata Police Station, Kiagata Health Centre, and Musoma Referral Hospital. Mr. Anosisye submitted that there is sufficient explanation by witnesses as to why the police could not interview him within the first four hours of his restraint by the police. Having looked at the way PW4 recorded the appellant's extra-judicial statement (exhibit P3), Mr. Anosisye agreed with Mr. Magwayega, the learned advocate for the appellant, that the Justice of the Peace did not sign the extra-judicial statement, making it defective. He urged us to expunge exhibit P3 from the record. However, Mr. Anosisye disagreed with Mr. Magwayega about the application of the case of MASHIMBA DOTTO @ LUKUBANIJA V. R (supra) to the present appeal. He elaborated that in MASHIMBA DOTTO, the Court discussed the allegation of torture in a cautioned statement before the police sent the appellant to a Justice of the Peace six days after recording a cautioned statement. In our case, Mr. Anosisye added, the police sent the appellant to the Justice of Appeal from the hospital and not from police station. 13 Despite conceding that we should expunge the appellant's extra-judicial statement from the record of appeal, the learned Senior State Attorney ebulliently submitted that despite expunging exhibit P3, the remaining evidence of PW1, PW2 and the evidence of the appellant's cautioned statement is sufficient for us to sustain the appellant's conviction for the murder of the deceased. He submitted that since the remaining evidence is sufficient to convict the appellant of murder, which he urged us to sustain, the learned State Attorney also exhorted us to dismiss the appellant's belated defence that he fought with the deceased, causing her death. He pointed out that the excessive violence the appellant committed against the deceased is inconsistent with a claim of a fight leading to the deceased's death. After considering the submissions of the learned advocate and learned Senior State Attorney, our re-evaluation of the evidence inevitably focuses on the main elements of the offence of murder which the law requires the prosecution to prove beyond reasonable doubt to convict the appellant for the murder of his wife Devota d/o Mtongori @ Boniphace. The first element is the unlawful death of the deceased. The second is who caused the deceased's death. The third element is whether whoever caused the death 14 had the intention to kill (malice aforethought); the fourth element is whether there are possible defences to reduce murder to manslaughter. Before we dwell on the elements constituting the offence of murder, we shall deal first with invitation from Mr. Magwayega to expunge the appellant's cautioned statement (exhibit P2) from the record of appeal because F6875 D/Cpl Nelson (PW3) recorded the appellant's cautioned statement beyond the period law prescribes. The record of appeals shows that PW3 recorded the appellant's cautioned statement (exhibit PE2) on 11 January 2020, from 10:02 hrs to 10:49 hrs. He recorded it at Musoma Referral Hospital. In his testimony, PW3 disclosed that his Officer in charge of the CID unit at Butiama assigned him the appellant's case on 10 January 2020 at 08:08 hrs when the appellant was still at large after escaping from the crime scene. PW3 later learned civilians had arrested the appellant, who had self-inflicted injuries and transported to Musoma. The following day, on 11 January 2020, PW3 travelled to Musoma to interview the appellant. Daudi Kisangure (PW2), a peasant and councilor at Wegoro village, provided evidence confirming how he sent a group of young men to search for the escaping appellant. The youths caught up with 15 the appellant, who had injured his stomach in an attempted suicide. The youths took the appellant to Kiagata police station and then to Kiagata Health Centre; from there, the Police transferred him to Musoma Referral Hospital. We think the prosecution evidence has sufficiently explained the delay. After seriously injuring himself, the appellant could not be taken to police custody. He needed urgent treatment which explains why he was transported to Musoma Referral Hospital. From the evidence of PW3 the four-hour initial period under section 50 (1) (a) of the CPA began to count when Musoma Referral Hospital discharged him formally to the custody of the police. PW2 and PW3 have accounted for the appellant's movement from when the citizens arrested him from the bush he was hiding, to when Musoma Referral Hospital admitted him for treatment. The Court takes judicial notice that the four-hour initial period to interview the appellant began to run when Musoma Referral Hospital formally and in writing discharged the appellant. As a result, we found that PW3 timeously recorded the appellant's cautioned statement (exhibit P2). With our finding that the appellant's cautioned statement (exhibit P2) remains part of the record of appeal, we return to the element of the unlawfulness or otherwise of the deceased's death. 16 It seems clear to us that there is no doubt the evidence on record proved the deceased died an unlawful death. The evidence proving that it was the appellant who caused the death of the deceased comes first from the Preliminary Hearing (the PH). Paragraph 4 of the memorandum of undisputed matters in the PH, which the appellant signed to signify his acceptance, states that he confessed to killing his wife before the police and later before the justice of the peace. In his cautioned statement (exhibit P2), the appellant admitted he killed his wife but wondered why he did so while they did not have any quarrel. He admitted escaping from the crime scene, taking with him a machete and a knife. When the youths who PW2 sent to trace the appellant found him, the appellant had a clear presence of mind to ask whether his wife had succumbed to the injuries he had inflicted earlier, and that is when he seriously injured himself when he attempted to commit suicide. After making our finding that the appellant caused the death of the deceased, the only issue outstanding for our determination is whether the appellant had the requisite malice aforethought at the time he caused the deceased's death. While Mr. Magwayega vehemently submitted that the appellant had malice aforethought when he killed the deceased and invited us to convict the appellant for the lesser offence of manslaughter, 17 Mr. Anosisye, the learned Senior State Attorney, supported elaborated circumstances that proved intention to kill the deceased. On his part, the trial judge found evidence that proved the appellant had malice aforethought when he killed his wife. The trial judge looked at the nature of the appellant's weapon, a knife. A knife, the trial judge observed, is a dangerous weapon that can cost a life if unlawfully used. The trial judge also discerned the appellant's strong force against the deceased. The trial judge referred to the evidence of the medical doctor (PW1), who testified about the multiple wounds (about 20 cut wounds) the medical officer saw on the deceased's body. The trial judge discerned malice aforethought from the way the appellant directed the knife attack on the deceased's abdomen, a vulnerable part of human anatomy. Section 200 of the Penal Code Cap 16, as expounded by such case law as ENOCK KIPELA VS THE REPUBLIC (supra), is a reference provision to determine whether the appellant's acts and conducts manifested the element of malice aforethought: 200. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether thatperson is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an Intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence." The case of ENOCK KIPELA VS THE REPUBLIC (supra) elaborates on section 200 of the Penal Code by listing some of the circumstances any of which shall in law manifest malice aforethought: "(1) the type and size o f the weapon, if any, used in the attack; (2) the amount o f force applied in the assault; 19 (3) the part or parts of the body the blow or blows were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attacker's utterances, if any, made before, during, or after the killing; and (7) the conduct of the attacker before and after the killing." In our view, the extent of injuries inflicted by a sharp object, which the medical officer (PW1) observed on the deceased's body manifested an intention to kill and amounts to malice aforethought within the meaning of section 200 of the Penal Code. We agree with the trial judge's dismissal of the appellant's version of events to the effect that, he merely wanted to snatch a knife from his wife's hands to peel avocado fruits; when the deceased refused to hand it over, the appellant became angry and pulled it by force, cutting her in the process. An afterthought defence cannot reduce murder to a lesser offence of manslaughter. 20 We conclude that the appellant had malice aforethought when he unlawfully killed the deceased Devota d/o Mtongori @ Boniphace. In the upshot, we dismiss the appeal in its entirety. DATED at MUSOMA this 16th day of March, 2025. I. H. JUMA CHIEF JUSTICE M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 17th day of March, 2025 in the presence of the Appellant in person - linked Via Video Conference from Musoma District Prison and Mr. Jonas Samwel Kivuyo, learned State Attorney 21