ROBERT BERENADO STEVEN VS THE REPUBLIC CRIMINAL APPEAL NO 742 OF 2023

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA fCORAM: MUGASHA. J.A.. MWAMPASHI. J.A.. And NGWEMBE, J.A.T CRIMINAL APPEAL NO. 742 OF 2023 ROBERT BERENADO STEVEN..................................................APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the judgement of the High Court of Tanzania at Bukoba) (Mwenda, 3) Dated the 28th March, 2023 in HC Criminal Session No. 86 of 2022 JUDGMENT OF THE COURT 10th & 14th March, 2025 NGWEMBE, 3.A.: The appellant, Robert Berenado Steven, was found to have murdered the deceased Theopista Laurent on 15th October, 2021 at Rukabuye village within Missenyi District in Kagera Region. He was accordingly convicted and condemned to suffer death by the High Court sitting at Bukoba (Mwenda J). Dissatisfied with the decision of the learned trial Judge, he has preferred an appeal to the Court. The circumstances surrounding the deceased's death are still a mystery. There was no eye witness to the murder. However, the evidence on the record of appeal discloses that the appellant at the age of 19 years was already married to Bernadetha and the couple had a child. The couple and their child were living in the house of Mr. Kagirwa (PW4) serving as Shamba boy. Mr. Kagirwa disclosed that in his house at Bukabuye village lived with his wife and the deceased (page 79). It happened that on 13/10/2021 he travelled to Chato District leaving behind his sister (the deceased), appellant and appellant's wife with their child. The appellant took advantage of PW4's absence and on 15/10/2021, entered into the room where the deceased was sleeping, subdued her by covering her head using a piece of bedsheet and the other piece was used to strangle her on the neck while he also used another piece of cloth to tie the deceased legs. He then searched the house and made away with several articles including a mobile phone of the deceased, other properties of PW4 like clothes, camera, subwoofer sound system, speakers, mobile phones, sim cards, suitcase, some photographs of Mr. Kagirwa's family thus, he fled to Kiluluma village, Karagwe District where he was hosted by one Maria Godfride. On return from Chato, PW4 found the house desolate with no sign of life inside (page 80). The house appeared searched and disarranged, articles were missing and upon entering in the deceased's room, alas, he found the deceased lying on a pool of blood and a piece of cloth around her neck. The police arrived at the scene of crime (PW3) and they took the body to Mugana Hospital for post mortem examination which was done by Dr. James Godfrey Malore (PW2). The Medical doctor observed that the source of death was strangulation of the neck and cerebral haemorrhage (page 33). The police mounted search for the appellant who, according to PW3, they managed to arrest him while hiding at Kiluluma village in Karagwe District on 31/10/2021. The appellant was found in possession of various properties stolen from PW4. Upon seizure of those properties and when the appellant was interrogated, he confessed to have murdered the deceased and stole the properties of PW4 (employer). The appellant confessed when he recorded his cautioned statement at Kyaka Police station and also repeated his confession before the justice of peace. The appellant's defence did not dispute participating in murdering the deceased rather he was hired by another person named Laurian Rukiza in consideration of TZS. 1,500,000/= to murder the deceased. Upon receipt of that amount of money, he blind folded the deceased while Laurian Rukiza throttled the victim around her neck to death. Consequently, he admitted being involved in killing the deceased though he suggested that the murder was not his agenda. Also, he confessed under oath that he collected properties of PW4 as he was found at arrest. Given the nature of the defence, the trial High Court entered its guilty verdict and sentenced him accordingly. Being discontented with the decision of the High Court, the appellant appealed to the Court armed with seven (7) grounds. For the reasons to be disclosed shortly, we will not reproduce them here. On the hearing date, Mr. Ibrahim Muswadick, learned advocate appeared for the appellant. On the respondent Republic, Ms. Ajuaye Bilishanga Zejeki, learned Principal State Attorney entered appearance accompanied with Ms. Chema Maswi learned Senior State Attorney and Dickson Elias Makoro also learned State Attorney. At the outset, Mr. Muswadick, abandoned all grounds of appeal as appears in the Memorandum of appeal, except grounds 1 and 7. Also, he abandoned all 4 grounds of appeal in the supplementary memorandum of appeal. The remaining two grounds of appeal are reproduced as follows: 1. The learned trial judge erred in law and fact in convicting the appellant on the offence of murder while the prosecution failed to prove the case beyond reasonable doubt as required by law; and 2. The conviction of the appellant was based on confession without any independent evidence linking the appellant with the crime. Submitting on those two grounds of appeal, Mr. Muswadick commenced his submission by stating the basic principle of criminal justice that the duty of the Republic in criminal trials is to establish and prove the accusations against the accused person beyond reasonable doubt. He buttressed his argument by referring the Court to section 3 (2) (a) of the Evidence Act (Cap 6 R.E 2022). In the contrary, he argued that the prosecution failed to perform that noble duty and he exonerated the appellant from the incident of killing the deceased. At most, Mr. Muswadick urged the Court that the appellant would be charged as an accomplice before the fact. He further argued that, the whole evidence was circumstantial, because no eye witness saw the appellant committing the offence of murder. He referred the Court to page 94 and 95 of the record of appeal which indicates that the appellant confessed to be an accomplice before the fact but he was not the actual murderer. He implored the Court to acquit the appellant for failure of the prosecution to prove the case beyond reasonable doubt. On the second ground, Mr. Muswadick argued briefly that there was no independent witness to corroborate the prosecution evidence. In response thereto, the respondent Republic supported the conviction and sentence of the trial court. Ms. Maswi, agreed that there was no eye witness when the deceased was murdered, rather the whole evidence is circumstantial. She added that the elements of murder were all established and proved that the deceased died unnatural death as was proved by PW1, PW2, PW3 and PW4. The question would be who killed the deceased? She quickly answered that the appellant was the one who killed the deceased because immediately after the incident the appellant and his family fled to unknown place and upon being arrested, he was found with properties stolen from the deceased's house, that is, exhibits P5 to P13. Ms. Maswi submitted further that in the appellant's sworn defence, confessed to have been found with those exhibits. PW4 recognized those properties as his properties as was corroborated by PW3. Therefore, those properties were found in possession of the appellant within 16 days from the date of incident of murder which was recent from the date of murder. In support of her argument, she cited the case of Mengi Mateo @ Karushavumbi & Others v. Republic (Criminal Appeal No. 238 of 2014) [2024] TZCA 337 (8 May 2024). 6 She argued further that, the appellant was the last person to be seen with the deceased presumably he was the one who killed her. She buttressed her argument with a case of Ally Ramadhani v. Republic (Criminal Appeal No. 57 of 2020) [2024] TZCA 962 (3 October 2024). Moreover, she referred the Court to the defence case found at pages 94 - 97 of the record of appeal that the appellant made a sworn confession before the trial court that he participated in killing the deceased. Thus, making his confession as the best evidence as was decided by the Court in Nyerere Nyague v. Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 (21 May 2012) and Joseph Mganga Mlezi & Another v. Republic (Criminal Appeal No. 536 of 2015) [2019] TZCA 361 (4 November 2019). Ms. Maswi rested her submission by imploring the Court to find the case against the appellant was proved to the standard required and the conviction and sentence was in accordance to law. In rejoinder, Mr. Mswadick reiterated his submission in chief and urged the Court to find the appellant innocent. We have paid the disserving consideration to the arguments of both learned counsel. Also, we have reviewed compassionately the record of appeal and found that, the whole appeal clock around the principles of circumstantial evidence; the doctrine of recent possession ,. of stolen properties and the self-incriminating evidence. In light of the evidence on record and the submissions of both counsels, we are inclined to begin our consideration with the principle of circumstantial evidence. We take it to be one of the settled principles of law that circumstantial evidence may ground conviction if the court is satisfied that the evidence irresistibly points to the guilt of the accused to the exclusion of any other person, (see Mpunzu @ Elisha Mpunzu v. R, (Criminal appeal No. 12 of 2002) [2004] TZCA 3 (28 June 2004). Moreover, the Court in the case of Mark s/o Kasimiri v. Republic (Criminal Appeal 39 of 2017) [2020] TZCA 170 (24 March 2020) laid down principles to rely on when the court considers circumstantial evidence that: one, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within human probability the crime was committed by the accused and none else; two, the inculpatory facts are inconsistent with the innocence of the accused and incapable explanation upon any other reasonable hypothesis than that of guilty; three, the evidence must irresistibly point to the guilty of the accused to the exclusion of any other person; four, the facts from which an adverse inference to the accused is sought must be proved beyond any reasonable doubt and must be connected to the inference to be inferred. When the court is . satisfied cumulatively on all four elements constituting circumstantial evidence, may convict the accused. In respect to this appeal, PW4 testified that he travelled to Chato on 13/10/2021 leaving behind his sister the deceased, the appellant and the appellant's wife and child, but on return on 15/10/2021, he found the house vacated, his properties were disorganized and some of them were missing. Upon entry to his sister's room, he found body of the deceased at a pool of blood covered with clothes. In any event, the appellant was the one who was left in the house of PW4 with the deceased. Henceforth, the appellant was the last person to be seen with the deceased under the circumstances, which could not easily be explained away. Considering the testimonies of PW1 and PW3 who witnessed the deceased body was tied up with a piece of a white cloth on her neck, head and leg. Moreover, they arrested the appellant hiding at Kiluluma village in Karagwe District. Upon being searched, he was found with all stolen properties from the house of PW4. Therefore, being found with properties recently stolen is an indication that the appellant was involved in the incident which occurred in the deceased room. We are aware of the use of presumption behind the doctrine of recent possession of stolen properties, as the Court clearly held in the case of Ally Bakari and Pili Bakari v. R, [1992] T.L.R. 10 where was held that: "The presumption of guilty can only arise where there is cogent proof that the stolen thing possessed by the accused is the one that was stolen during the commission of the offence charged". (see James s/o Paul @ Masibuka and Another v. Republic (Criminal Appeal No. 61 of 2004) [2006] TZCA 212 (14 March 2006) and Jumanne Rashid @ Kichochi v. Republic Criminal Appeal No. 206 of 2005 (unreported). We therefore find no doubt that the appellant was found with properties recently stolen from the house where murder occurred. The testimony of PW2, it supports the argument of Ms. Maswi that the death of the deceased was not natural death and that it was unlawful. PW2 testified that the deceased died unnatural death due to strangulation of her neck and cerebral hemorrhage. Also, PW3 testified that he witnessed the post mortem examination done by PW2 and that he was told by the doctor that the death was due to strangulation and that her head was hit by a heavy object. Thus, concluding that the death of the deceased was unnatural, hence she was murdered. As shown earlier, when the appellant gave his defence he implicated himself that he participated in killing the deceased and stole properties of PW4 which he was found in possession at Kiluluma village within Karagwe District. We find such testimony was the best evidence on his guilt. See: Paulo Maduka & Others v. Republic (Criminal Appeal 110 of 2007) [2009] TZCA 69 (28 October 2009) where the Court pronounced that the very best of witness in any criminal trial is an accused person who confesses his guilt. Consciously, the appellant confessed before the police PW3 (Inspector Dotto Salamba @ Nyanda) and he repeated his confession under oath during trial. Thus, corroborating the prosecution account. In the circumstance like this appeal, when the defence aid the prosecution case, we find no better words than what we stated in the case of Mohamed Haruna @ Mtupeni and Majaliwa Seif Mtupeni v. Republic (Criminal Appeal No. 216 of 2014) [2015] TZCA 362 (7 December 2015) that: 'We take it to be one of the settled principles of law that if an accused person in the course of his defence gives evidence which carries the li prosecution case further, the court will be entitled to take into account such evidence of the accused in deciding on the question of his guilt' See also, David Gamata and Amos Wigina @ Mwirango v. Republic (Criminal Appeal 259 of 2007) [2010] TZCA 141 (4 June 2010). The argument put forward by Mr. Muswadick that the appellant should have been charged with a different offence, called accessory before the fact, does not earn a point. The law does not recognize such an offence of accessory before the fact in Tanzania. Settled is the law that every person who participates in aiding or abetting, counselling or procuring commission of the offence is a principal offender as provided for in section 22 (1) of the Penal Code. Size of his role in the commission of the offence, as general rule, is immaterial in determining his guilt under section 23 of the Penal Code. Therefore, even with the appellant's line of defence, the learned counsel's argument is not backed by any relevant law. In the instant appeal the trial court cannot be faulted for convicting the appellant because the prosecution dutifully proved the offence of murder against the appellant. On the totality of the evidence, we are satisfied that the decision of trial court did not flout the principles of law, therefore the appeal is without a semblance of merit and is accordingly, dismissed in its entirety. DATED at BUKOBA this 14th day of March, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. 1 NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 14th day of March, 2025 in presence of Mr. Ibrahim Mswadick, learned counsel for the Appellant and Mr. Dickson E. Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. c. m : m a g es a DEPUTY REGISTRAR COURT OF APPEAL