CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: KEREFU. 3.A., MGONYA, J.A And MLACHA. J J U CRIMINAL APPEAL NO. 357 OF 2023 DASTAN JAMES @ NYALUSI..... ..... ...... ......... .................... APPELLANT VERSUS THE REPUBLIC .......... ........... ...... ........RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) fUtamwa. J.Y dated the 12th day of December, 2022 in Criminal Sessions Case No. 52 of 2019 JUDGMENT OF THE COURT I0 h & 2a* March, 2025 MGONYA, J.A.: Before the High Court of Tanzania sitting at Iringa in Criminal Sessions Case No. 52 of 2019, the appellant, DASTAN JAMES @ NYALUSI, was prosecuted with and convicted of murder contrary to section 196 of the Penal Code, Cap. 16 (the Penal Code). He was sentenced to suffer death by hanging. Dissatisfied, the appellant is now before this Court appealing against both conviction and sentence. i It was alleged that, on 2ndJuly, 2018 at Mlowa Village, Makambako within the District and Region of Njombe, the appellant murdered one Leuteii s/o Kiwovele. The facts that led to the appellant's conviction albeit in brief, goes as follows: That, on the 2nd day of July, 2018, around 02:00 hours at night, the appellant and his co-accused (not part of this appeal) went to the farmhouse of Simon Sanga, which was resided in by the deceased person, one Leuteii Kiwoveie, his farm boy. That, the said farm enclosed different animals, including chickens. While in that farm, the appellant and his co-accused, in the course of stealing chickens, the same made noises that awakened the deceased. The deceased went out to check what was going on. While approaching the door, the deceased met the appellant, who suddenly cut him with a machete on various parts of his body, including the head and the left hand, which were brutally injured. Due to the inflicted wounds, the deceased was bleeding profusely. Simon Sanga, the owner of the farm, took the deceased to the police station, where he was issued with a PF3 before they headed to Makambako Hospital for treatment. At the hospital, the deceased was admitted and treated. Unfortunately, he passed away around 11:00 hours of the same day. Following the deceased's death, on 03/07/2018, police officers went to the crime scene, and H. 834 DC Charles drew a sketch map. Further, investigation was conducted; and as a result, the appellant and his co­ accused were arrested following the intelligence information from the police informer. They were later arraigned in court charged with the offense of murder. To establish the charge against the appellant, the prosecution paraded three witnesses and submitted six exhibits, whereas the appellant was the sole witness for the defense case. Dr. Ivan Charles Fute (PW1), a medical doctor at Makambako Health Center, conducted a postmortem examination of the deceased. He testified that, the cause of the deceased's death was due to severe brain hemorrhage resulting from a blow inflicted on the deceased's head with a heavy object. The postmortem report was admitted into evidence as Exhibit PI. H. 834 D/Cpl. Charles Sweya (PW2), the investigating officer, testified to the effect that, the appellant was apprehended on 10th July, 2018, at Igangidungu in Makambako. Further that, at the Police Station, he recorded the appellant's cautioned statement (Exhibit P4) and prepared a sketch map of the crime scene (Exhibit P3). Another prosecution witness was SP Isaya Sudl (PW3), who testified that on 9th July 2018, a police informer provided him with information implicating the appellant with the murder of the deceased, a farm boy. Acting on this intelligence information, he and his team proceeded to arrest the appellant at his residence, He stated further that, on 10th July, 2018, around 8:00 am, while in the company of other police officers, the appellant led them to the residence of Jonisia, the alleged owner of the machete used in the crime. There, in the presence of Jonisia's son, one Nashon, they recovered the machete, and a seizure certificate documenting the discovery of the same was admitted into evidence as Exhibit P5. In his defence, the appellant (DW1), denied any involvement in the said murder. Although, he admitted that he was arrested on 10th July 2018, he vehemently denied committing the crime. He claimed that, while in the custody at Makambako Police Station, he was subjected to torture and forced to sign a cautioned statement under duress. Furthermore, he denied leading the police to the location where the machete was recovered. After evaluating the evidence presented by both parties, the trial court found that the prosecution had proven the case against the appellant beyond reasonable doubt. Consequently, the appellant was convicted of murder and sentenced to death as indicated earlier. The trial Judge's findings were based on several factors. First, that the appellant's cautioned statement corroborated the evidence presented by PW3. Second, that the contents of the appellant's cautioned statement aligned with the information recorded in Exhibit P. 1 (the PF 3), which had been issued to the deceased prior to his demise. That it was recorded in the PF3 that, the deceased's body had a scalp laceration cut wounds on the fingers, the facts that tallied with the appellant's confession in his cautioned statement. Therefore, it was the trial Judge's findings that, the appellant's cautioned statement was corroborated by other pieces of prosecution's evidence. Consequently, he found that the charge of murder was proved beyond reasonable doubt against the appellant Dissatisfied with the trial court's decision, the appellant knocked the door of this Court, having two memoranda of appeal comprising of thirteen grounds. However, for the reason that will become apparent soon, we proposed not to reproduce them. During the hearing of the appeal, Mr. Edmund Mkwata, learned counsel, represented the appellant, while the respondent, Republic was represented by Ms. Xaveria Makombe, learned Senior State Attorney, assisted by Ms. Elise James, learned State Attorney. At the outset, Mr. Mkwata intimated that he would argue only the 1st and 2nd grounds of appeal from the original memorandum of appeal and the 3rd, 4th and 6th grounds from the supplementary memorandum of appeal, and abandon the rest of the grounds of appeal. In addition to that, he sought and granted leave of the Court to introduce an additional ground of appeal that, the cause of the deceased's death was uncertain. Basically, the appellant's complaints centered on three major grounds, as outlined herein below: 1. That, the evidence adduced in court by prosecution witnesses PW1 and PW2 was contradictory to each other; 2. That, materiaI witnesses were not called; and 3. That, the cause o f deceased's death is not certain. Submitting in support of the first ground of appeal that, there were contradictions on the prosecution evidence which is the subject in the 2nd ground in the original memorandum of appeal and the 3rd and 4th grounds in the supplementary memorandum of appeal, Mr. Mkwata submitted that, there is a contradiction on who recorded the appellant's cautioned statement, between PW2 and PW3. He also, raised concern about inconsistencies regarding the date of the appellant's arrest. He argued that/ while PW2 testified that, the appellant was arrested on 10th July, 2018, at around 9:00 am, PW3 stated that, at 08:00 a.m, on the same date, the appellant led them to Jonisia's home. It was the appellant's counsel argument that, the contradiction weakened the prosecution's case. In reply to this ground, Ms, Makombe argued that, no such contradictions exist, as it is on record at page 56 that, it was PW2 who recorded the appellant's cautioned statement. Likewise, on the complaint that there is a contradiction on the date the appellant was arrested, she asserted that, there was no contradiction as the record clearly indicates that, the appellant was arrested on 10thJuly, 2018. On our part, having heard the rival submissions made by the parties on the contradictions on the prosecution evidence, in determining the complaints, we re-evaluated the record of this appeal and found that, there was no any contradiction on who recorded the appellant's cautioned statement as argued by the appellant's counsel. It is on record at page 56 that, PW2 testified before the court that, he was the one who recorded the appellant's cautioned statement. PW2's testimony is supported by the appellant's testimony at page 83 of the appeal record, where he stated that, it was Charles (PW2) who recorded his statement. Therefore, this complaint is unfounded. In regard to the alleged contradiction on the date when the appellant was arrested, we acknowledge that the contradiction exists. It is on record of this appeal at page 55 that, PW2 testified that, the appellant was arrested on 10thJuly, 2018 at 9:00 a.m, while PW3 testified that, the arrest took place on 9th July, 2018. However, we consider this contradiction as minor and inconsequential, which does not undermine the prosecution's case or affect its core substance. Our reasoning is twofold. First, there is no dispute that the appellant was indeed arrested. Second, in his defense at page 88 of the record of appeal, the appellant confirmed that, he was arrested on 10th July 2018 at 8:00 a.m. while at his home at Kibedange Street in Makambako, the fact which aligns with PW2's testimony. It was stated by the Court in Lusungu Duwe v. Republic (Criminal Appeal No. 76 of 2014) [2014] TZCA 162 (16 June 2014); TANZLII, that: "Normal contradiction and discrepancies are bound to occur in the testimonies o f the witnesses due to normal errors o f observation, or errors in memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence." Being guided with the above principle, and having found that the spotted discrepancy is minor and trivial, we find this complaint unmerited and equally fails. On the second ground that, material witnesses were not called, the subject in the 1st ground of appeal from the original memorandum of appeal and the 6th ground of appeal from the supplementary memorandum of appeal, Mr. Mkwata submitted that, failure of the prosecution to summon key witnesses including Nashon Finangali and WP. Doroth, the exhibit keeper, without providing reasons for their absence, casts reasonable doubt on the prosecution evidence. He stressed that the trial court was supposed to draw adverse inference on the prosecution case in that respect. Responding on this complaint, Ms. Makombe referred us to pages 79 to 81 of the record of appeal, where the prosecution informed the trial court that, two witnesses had been expected to testify but failed to appear. She maintained that there was no ulterior motive behind their absence. Furthermore, Ms. Makombe contended that, although Nashon was not called as a witness, it was the appellant himself who led the police to Nashon's residence. Thus, in her view, the testimony of PW3 was sufficient to establish what transpired at Jonisia's home. The learned counsel stressed that, in this case, the appellant's confession was the most compelling evidence. To bolster her argument, the case of Mawazo AnyandwIIe Mwaikwaja v. DPP (Criminal Appeal 455 of 2017) [2020] TZCA 268 (3 April 2020); TANZLII was referred. As far as this complaint is concerned, we do not agree with the [earned counsel that, failure to summon the two witnesses is fatal. The reason for our stance is not far to fetch. It is gathered from the record of this appeal that, Nashon's role was limited to handing over the machete to PW3 after the appellant led them to Jonisia's home and nothing more. Likewise, to WP Doroth, she was-only involved in keeping a machete which was handed to her by PW3. Among the two persons, there was no an eye witness to the killing. Therefore, in our view, since PW3 who dealt with collecting the evidence of this case testified before the trial court and narrated all what he encountered during his investigation including the role played by Nashon Filangali and WP Doroth, we find that, failure to summon the two did not erode the prosecution's evidence. It is well-established that, the prosecution has the discretion to call only those witnesses necessary to advance its case, regardless of their number. See for instance, Skona Rolyan Munge & Others v. Republic (Criminal Appeal No. 51 of 2020) [2022] TZCA 773 (6 December 2022); 10 TANZLII and Abdallah Kondo v. Republic (Criminal Appeal No. 322 of 2015) [2016] TZCA 836 (28 September 2016); TANZLII. In the latter case, the Court held that: "It is the prosecution that has the right to decide which witnesses to cail in support o f the charge. Such witnesses must be those capable o f establishing the appellant's responsibility in the commission o f the offence." See also Hassan Juma Kanenyera v. Republic [1992] T.L.R. 100. Premising on the above discussion, and being guided with the above legal principle, we find the appellant's complaint unmeritorious. In regard to the third ground that, the cause of death is not certain, it was the appellant's counsel that, there is the contradiction on what was the cause of the death on what is recorded in the postmortem report and witnesses' testimonies. He argued that, while the postmortem report attributed the cause of death to be a traumatic brain injury with a skull fracture, PW1 testified at page 51 of the record of appeal that, the deceased died from severe bleeding into the brain after being struck with a heavy object. According to the appellant's counsel, these inconsistencies cast doubt on the certainty of the cause of deceased's death. In response, Ms. Makombe urged the Court to dismiss the claim as the same is baseless. She argued that, the cause of deceased's death was documented in the postmortem report, which the appellant did not challenge during the trial. In her view, failure to cross-examine, indicated agreement with the facts presented. To support this argument, she cited the case of Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 [2012] TZCA 103 (21 May 2012); TANZUI. On our part, we find no need for extensive discussion on the above complaint on the uncertainty of the deceased's cause of death. As we alluded above, it is undisputed fact that the deceased was killed; and his death was unnatural. The postmortem report (Exhibit P2) clearly indicates that the cause of death was a traumatic brain injury with a skull fracture. As rightly argued by the learned State Attorney, a postmortem report was tendered and admitted in evidence as exhibit P2. The same was tendered by PW1, a doctor who examined the deceased's body. After, admitting the postmortem report, its contents were read loud before the appellant and his counsel. The appellant's advocate did not cross examine the witness on the cause of death recorded in the report. Therefore, raising this complaint at this appellate stage, we find it to be an afterthought. Accordingly, we reject this ground for being devoid of merit. Ultimately, we conclude that the appeal is without merit. In fine, we dismiss it in its totality. DATED at IRINGA this 20th day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 20th day of March, 2025 in the presence of the appellant with learned State Attorney Mr. Sauli Makori, for the Respondent/Republic who also holding brief for Mr. Edmund Mkwata, learned counsel for the Appellant; is hereby certified as a true copy of the original. _____ 13