CRIMINAL APPEAL NO 501 OF 2021 CHACHA KAWA MWITA V REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA f CO RAM: SEHEL, J.A.. KAIRO, J.A. And KHAMIS. J.A .) CRIMINAL APPEAL NO. 501 OF 2021 CHACHA KAWA MWITA................................................................... APPELLANT VERSUS THE R EP U B LIC ............................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali, J.) dated the 25th day of October, 2021 in Criminal Sessions Case No. 2 of 2021 JUDGMENT OF THE COURT 19th & 28th February, 2025 KHAMIS. J.A.: The appellant, Chacha Kawa Mwita, was charged with the offence of murder contrary to section 196 and 197 of the Penal Code, Cap. 16, R.E 2019. The particulars of the offence as per the information dated 9th day of November, 2020 were that, on the 17th day of July, 2018 at Mbilikiri village within Serengeti District in Mara Region, the appellant murdered Marwa Moroga Lusana. The appellant pleaded not guilty and the matter proceeded to full trial before the High Court, Musoma where he was convicted in a judgment delivered on 25th day of October, 2021 and sentenced to suffer death by hanging. Aggrieved of his conviction and sentence, the appellant advanced to this Court with a determination to restore his innocence by way of this appeal. Before skimming through the appeal, let us give a brief background of the matter as obtained from the record of appeal. Marwa Morogo Lusana, the deceased, spent most of his life in Mwanza where he worked for gain. Driven by home sickness, he moved back home at Mbilikili village, Serengeti District within Mara Region where his nephew, Ikwabi Mwita Moroga (PW2) kindly hosted him. On 17th July, 2018 PW2 left his home to visit an herbalist at a distant area to collect some herbs for his ailing wife and children. Upon his return at around 1900 hours, PW2 noticed his house was quiet with no sign of life. Surprisingly, when he knocked the door, his younger brother, then aged 14 years old, Julius Mwita Moroga (PW1) responded with cries. When PW2 demanded to know why the cries, PW1 explained that their uncle, the deceased, was slaughtered to death. Upon further inquiries, PW2 was informed that, the deceased was jointly slaughtered by Chacha Kawa Mwita (the appellant) and his two sons, Elia Chacha and Gongi Chacha. Describing the incident, PW1 said, 2 on the fateful day, he returned from the grazing at around 1800 hours but did not find anyone at home. He left the cows outside and sat on a rock near the homestead hopping someone older would show up and assist to drive them to a shed. The rock stood high up and if one seated on it, could clearly see the river and the valley beneath. Beside the river, PW1 saw the deceased and Mwita Marwa Teto @ Kibandiko talking to each other. Suddenly, PW1 saw the appellant and his two sons walking down the valley. Gongi Chacha carried a spear, Elia Chacha clutched a machete while the appellant had no weapon. Upon reaching the river bank, the trio followed the deceased and attacked him in concert until he fell down. After the deceased weakened, the appellant pressed him against the ground while Gongi Chacha tightly held his legs and Elia Chacha slaughtered him by a machete. Immediately thereafter, the trio left the scene running. On further examination, PW1 said the rock overlooked the valley and there was no obstruction to see the scene which was about 30 to 50 paces away. He testified that, at the time of the incident, the sun was still up and he vividly recognised the assailants who were well known to him since childhood. Regarding kibandiko, PW1 said, he saw him a away when the assailants started to slaughter the deceased. PW l's efforts to scream for help did not bear fruits as no one showed up. Terrified by the incident PW1 entered the house and locked himself in until PW2 arrived. Having learnt of the incident and a fact that PW1 was terrified even to visit the scene, PW2 used the light of a torch to walk alone down the valley until spotted the motionless body of the deceased at the river bank. He raised an alarm which attracted other villagers including Nyambeya Bhoke (PW3), the first one to join him at the scene. According to PW3, immediately after the alarm locally known as " mwano"\Nas raised by PW2, he ran to the scene and identified the deceased whose neck was cut at the throat. Local leaders were notified of the incident and promised to go the next morning but advised villagers to remain with the body at the scene. The next morning, the Village Executive Officer (the VEO), ward councillor and the medical doctor visited the scene in a company of policemen. The search for the murderers by the villagers (wana mwano) in the bush ensued. After a short while, the appellant was found hidden somewhere in the bush and unsuccessfully attempted to run away. He was then arrested and handed over to the policemen. In the course of investigations, policemen drew a sketch map of the scene of crime, interrogated witnesses and witnessed the post mortem examination of the body. One of the policemen was Detective Corporal Yunus (PW5) who drew a sketch map of the scene of crime whose admission was refused by the trial court for not being listed at the committal proceedings. One of the recorded witness statement was of Mwita Marwa @ Kibandiko, the eye witness who was present at the scene at that time of the incident but whose whereabouts was unknown at the time of trial. The prayer by the prosecution to tender his statement under section 34B of the Tanzania Evidence Act, Cap 6, R.E 2022 was rejected by the trial Judge for non-compliance of the procedural law. Dr. Willy Elias Mchomvu (PW4), the medical doctor at DDH-Mugumu with thirty years' experience in the field, conducted a post-mortem examination of the deceased's body while at the scene and concluded that, he passed away as a result of excessive loss of blood. On examination, PW4 said the deceased was slaughtered around the neck, a sensitive area in a human body which carries numerous blood vessels transporting blood to and from different parts of the body. The appellant was put on defence and elected to make an affirmed testimony. At the outset, he disputed the charge and said on the date of the incident, he was in Bonchugo village for a drinking spree with his friends, Kibuye Marwa, Mwita Mukona and Mahende Getacho. He returned home at around 2100 hours to find his wife was about to retire to bed. The next day, 18th July, 2018, the appellant left home at 1000 hours and visited his farms and land plots where he slashed glasses. Subsequently, he was joined by his son, Amosi Chacha who did not stay long. No sooner had Amosi Chacha left the farm than the villagers invaded, assaulted and arrested the appellant. In his estimation, the villagers (wana mwano) were more than 50 in number. On strength of these facts, the learned Judge convicted the appellant and sentenced him to suffer death by hanging. In the memorandum of appeal lodged on 29th July, 2022 the appellant brought up seven grounds of appeal. However, when hearing was about to start in earnest, the learned counsel for the appellant condensed the seven grounds into two, namely: one, the trial court erred in law and facts in convicting and sentencing the appellant to death based on the evidence of PW1 whose credibility was questionable; and; two, the trial court erred in law and facts in convicting and sentencing the appellant while the prosecution did not prove its case beyond reasonable doubt. At the hearing of this appeal, the appellant who was physically present, was represented by Mr. Leonard Elias Magwayega, learned advocate, while Ms. Agma Aggrey Haule and Mr. Isihaka Ibrahim Mohamed, both learned State Attorneys, advocated for the respondent Republic. Addressing the Court on the two grounds of appeal in seriatim, Mr. Magwayega contended that, the trial court misdirected itself in founding a conviction based on the evidence of PW1 whose credibility was questionable. He drew our attention to pages 19 and 21 of the record where PW1 stated that from a top of the rock he could see movements of who were at the river bank. He argued that, since the evidence on record showed the scene of crime was at the river bank, it was not possible for PW1 to see the incident because valleys and rivers are known to be surrounded with trees. He argued that, there is no river without a valley and trees. The learned counsel attacked the evidence of PW1 on the ground that, he failed to disclose height of the rock which enabled him to witness the incident at the bank of a river, the time mentioned was not clear if estimated or real, and that, the witness failed to state as to how Kibandiko left the scene after the incident. He emphatically submitted that, since PW1 had failed to testify on these important details, his evidence was to be approached with caution. The learned counsel for the appellant further faulted the evidence of PW1 allegedly for the inconsistency on the distance between the rock and the scene of crime. He contended that, at page 20 of the record of appeal PW1 was recorded saying the distance was about 30 to 50 paces but at page 21 of the record, the witness contrasted his answer and suggested that, the distance was about 40 to 50 paces away. In further development, the learned counsel submitted that, the learned trial Judge erred for relying on the evidence of PW1 who had allegedly failed to timely report the incident. He wondered why the witness locked himself inside the house and waited for PW2 to come instead of reporting the murder incident to the local leaders, neighbours or any other villager. He also queried as to why PW1 raised an alarm (mwano) that was not responded by anyone but subsequently, PW2 raised mwano that was overwhelmingly reacted by the villagers. In his view, PW1 was not a credible witness and urged us to discredit his evidence. On the second ground of appeal, Mr. Magwayega submitted that, the prosecution failed to prove its case beyond reasonable doubt. He contended that, the learned trial Judge misdirected himself at page 107 of the record where he pinpointed some criteria to be applied when admitting the testimony of an eye witness, to wit: the degree to which the eye witness paid attention to the culprit; the length of time of observation; the length of time between occurrence of the crime and the reporting; the eye witness identification certainty; and; the quality of the view of the eyewitness. He argued that, as the trial Judge did not cite a source of the criteria, his conclusion could not be taken seriously to ground or uphold a conviction. The learned counsel spotlighted alleged holes in the prosecution case whose absence failed to prove that, the appellant had killed the deceased, namely: absence of a sketch map of the scene to show how the appellant was recognised by PW1; absence of the testimony of Kibandiko, a key witness who was present at the scene at the time of the incident; and; lack of investigation details to show how the case was investigated to justify a conviction. In addition, the learned advocate referred us to section 3 (3) read together with sections 110 and 112 of the TEA in agitating that, the prosecution did not prove its case beyond reasonable doubt. He moved the Court to quash the conviction, set aside the sentence meted out to the appellant and release him from custody. On the other hand, Ms. Agma Haule, opposed the appeal. She urged the Court to uphold the conviction of the appellant by the trial court stating that all ingredients of the offence of murder were satisfied as the conviction was based on the evidence of an eye witness and corroborated by the circumstantial evidence. On the first ground of appeal, Ms. Haule submitted that in law credibility is measured by coherence and consistency which were both fulfilled by PW1 as he described events accurately and chronologically. She added that, during cross examination, he maintained his earlier position and was not easily swayed. He clarified all key areas and his evidence was not generally shaken. The learned State Attorney drew our attention to page 20 of the record where PW1 stated that at the time of the incident the sun was still up, there was sufficient light to enable him recognise the murderers and that he was on top of a rock, an altitude that enabled him to clearly see the scene. She further highlighted the witness's testimony that, the distance from a rock to the scene was about 30 to 50 paces and argued 10 that, such was a very short distance and bearing in mind there was no any obstruction in between, it was conducive for proper identification. She submitted that, the evidence of PW1 was corroborated by the appellant's evidence at page 51 of the record where on examination, he told the trial court that, immediately after the arrest, he was taken to the scene of crime which is a plain valley area, on the lower land of the village with no trees around. Regarding lack of height of a rock and description of the circumstances of Kibandiko's disappearance from the scene, the learned State Attorney submitted that, it is not realistic to give measurements of all features around the scene and urged us to find that, the evidence on record sufficiently demonstrated that PW1 saw the whole incident of murder. Addressing the alleged contradictions and inconsistency, the learned State Attorney cited Dickson Elia Nsamba Shapwata and Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 for the proposition that, in evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. On that path, she asserted that, PW1 did not contradict himself on the distance from a rock to the scene of crime as he maintained that, it was between 30 and 50 paces or between 40 and 50 paces. She argued that the answers were still in the same range of 30 to 50 paces. She strongly disputed the appellant's counsel contention that at some point PW1 said the distance was 100 paces. To buttress her point, she drew our attention to page 22 where on cross examination by the defence counsel, the witness insisted that her testimony regarding the distance did not differ with a statement recorded at the police station and insisted that those measurements were just estimated. On the second ground of appeal, Ms. Haule submitted that the prosecution case was proved beyond reasonable doubt and PW1 was a credible witness. She urged us to find that, the evidence of PW1 is unquestionable as the murderers were well known to him. To fasten her argument, she drew our attention to page 20 of the record where on examination, PW1 said Elia Chacha, Gongi Chacha and the appellant were well known to him since childhood as they were neighbours in the village. The learned State Attorney submitted that the prosecution case and particularly, the evidence of PW1 satisfied the conditions for visual identification enunciated in the case of Waziri Amani v. Republic 12 (1980) T.L.R 250; Emmanuel Luka and 2 Others v. Republic, Criminal Appeal No. 325 of 2010 (unreported); and; Makende Simon v. Republic, Criminal Appeal No. 412 of 2017 [2021] TZCA 156, thus: the time the witness observed the accused; the conditions where the observation occurred, for instance, whether it was during day or night time and whether there was good or poor light at the scene; whether the witness knew or had seen the accused before; and; whether the witness mentioned the accused immediately after the incident to other persons. Placing those conditions to the present case, the learned counsel contended that, PW1 knew the appellant before the incident, he mentioned his name to PW2 and other villagers immediately after the incident, the witness was on top of a rock overlooking a plain valley with no trees to obstruct his vision which height enabled him to clearly see the scene, and that, the distance between the scene and a rock was reasonably short, about 30 to 50 paces away. She urged the court to consider those circumstances and find that, the appellant was properly recognised by PW1 and that, there was no possibility of a mistaken recognition as the learned counsel for the appellant suggested. In addition, the learned State Attorney urged us to disregard the appellant's counsel assertion that PW1 did not report the incident to 13 village leaders. She contended that, in the circumstances of the case, the suggestion was untenable as the witness was a minor boy of 14 years old and terrified by the murder of his uncle. Regarding the prosecution's failure to tender a sketch map and parade Kibandiko as a witness, the learned counsel for the State submitted that the omission did not erode the substance of the prosecution case which was well built by other pieces of evidence. In her view, a sketch map and Kibandiko were only meant to supplement other pieces of evidence that were received by the trial court. She strongly submitted that, the evidence of PW1, PW2, PW3 and PW4 were not challenged and remained intact to corroborate the evidence of PW1. In rejoinder, Mr. Magwayega reiterated his earlier submissions and insisted that, being the only person who was with the deceased at the scene of crime, Kibandiko was a key witness who should have testified at the trial court. Equally, the learned advocate asserted that, the prosecution's failure to tender a sketch map of the scene of crime adversely affected its case as the evidence of PW1 was left hanging for lack of a drawing to compare authenticity of the narrations made by the witnesses on the circumstances of the scene. 14 We have carefully considered the submissions made. The main issues for our determination is whether the prosecution proved its case against the appellant beyond reasonable doubt. This is a first appeal. Our duty in terms of rule 36 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules) is to re-appraise the evidence and draw inferences of fact. That means, to subject the evidence on record to a fresh and exhaustive examination and draw own conclusions (See Pandya v. R. [1957] E.A 336. The trial court drew three issues for determination, namely: one, whether it was the appellant who killed the deceased; two, if the answer to issue number one is in the affirmative, whether malice aforethought has been established; and; three, whether the accused person is responsible for the death of the deceased. In addressing those issues, the trial court considered the credence of PW1 and particularly the defence concern that though his story appeared tasteful, it was incredible because the degree of identification was weak. It was also alleged by the defence counsel at the trial that the evidence of PW1 was inconsistent with his own statement made at the police station. Having considered all relevant issues, the trial Judge at page 105 of the record, concluded that: 7/7 my digest to the testimonies o fP W l, PW2 and that o f PW3 they connect and corroborate each other. Digesting the manner PW1 described the accused person and his sons, how each is fam iliar with, one can hardly raise any doubt against his testimony. I say so, considering the fact that his act o f reporting the incident to his sibling (PW2) immediately, has led to the true findings o f the body o f the deceased at the same pointed scene, his age and the witnesses' demeanor a ll the time in court. In my finding, the witness had no any personal interest to serve in testifying against the accused person. Though it is true that there is only a single testimony pointing guilt to the accused person, the circumstances o f this case establish no legal doubt. The evidence is irresistibly pointing to the accused person and is not leading to any other interpretation." Further, at page 109 of the record, the learned trial Judge concluded that: "The arguments by defence that there existed some doubts to the credence o f PW1, I think it is legally not persuasive. Yes, there might be some minor discrepancies which in law do not corrode the root cause o f the case. A mere difference o f 30 to 50 meters or 100 m eters' distance, in my view is a minor discrepancy. What can be gathered 16 I from him , it was short distance capable o f viewing and identifying a person and the activities going on. I have warned m yself that the credence o f PW1 and his demeanor are nothing but portraying the true narration o f the episode." At page 115 of the record, the learned trial Judge summarised his findings, thus: "In my final analysis o f the whole prosecution's evidence as who are responsible for the said murder o f Marwa Moroga @ Lusana, I find the accused person responsible. Though the accused person is not the only one responsible as per P w l's testimony but the only one arrested, however the same cannot be left freely ju st because the other wrong doers have not yet been arrested and connected with these charges..." We have given thought of the learned trial Judge's analysis and evaluation of the evidence. Considering the impugned judgment of the trial court, we are satisfied that, the learned trial Judge applied the correct principles of law to the facts of the case. The analysis and conclusions made cannot be faulted. It cannot be gainsaid that a positive identification of an accused is an indispensable element in proving a criminal charge. The prosecution had a cardinal obligation to demonstrate that the deceased died an 17 unnatural death and that his death was caused by the appellant. In discharging that duty, the prosecution paraded five witnesses whose evidence corroborated each other. It was clearly demonstrated that, PW1 a credible witness in our view, witnessed the killing done by the appellant and his two sons. The circumstances of recognition were conducive as PW1 knew the three family members since his childhood and there was no obstacle from where he stood on a rock to the scene of crime. PW1 immediately reported the incident to his elder brother (PW2) despite the fact that he was terrified and briefly locked himself in the house. Acting on the information of PW1, PW2 was able to trace the body at the scene and raised an alarm that attracted other villagers including PW3. The villagers attended to the body and cooperated with policemen (PW5) and a medical doctor (PW4) to conduct a post mortem examination. Further acting on the information given by PW1, the villagers and policemen were able to track the appellant and arrest him while hiding in the bush. Before we pen off, we are conscious that the learned counsel for the appellant raised some issues aimed at attacking credibility of PW1, namely: failure to give measurements of a rock, failure to disclose that the scene as a valley was surrounded with trees, circumstances for disappearance of Kibandiko from the scene and inconsistency in the testimony of PW1 regarding a distance between a rock and the scene of crime. We considered all these issues in the extent of the counsel submissions and the evidence on record. We shall address them one after the other. First and foremost, the alleged presence of trees and general layout of the scene was cleared by the appellant himself who testified as DW1. On examination by his counsel, Ms. Pilly, the appellant stated that: "Yes, I was sent to the scene o f crime, where the alleged murder is said to have been committed. A t the said v a lle y it is down, plain and having no trees..." We therefore find that, as opposed to an assertion by the appellant's counsel, the scene did not have any tree that could obstruct the vision of PW1 towards the activities that happened around it from the rock. On failure to give measurements of a rock, we find no substance in this contention either. PW1 clearly testified on how the scene looked like, its environment and the situation around it. He stated that, from the point he was standing on a rock at the time of the incident, he could visibly see everything beneath as the rock was on top of a valley and the deceased was killed on the lower land. In our view, no mathematical calculation was required to know that a valley is an elongated low area often surrounded 19 by hills. We understood PW1 and PW2 to mean that, their house which was built close to the rock, was on a hill overlooking the valley. We have also given thought on the testimony of PW1 regarding the circumstances for disappearance of Kibandiko from the scene. PW1 disclosed that Kibandiko was talking to the deceased and ran away when the murderers started to slaughter the deceased. In our opinion, this testimony sufficiently placed Kibandiko at the scene and established that PW1 was able to see all material activities that happened there. The question as to which direction Kibandiko ran to after the event is irrelevant. Lastly is the alleged discrepancy on the distance between a rock and the scene. Our efforts to uncover that discrepancy did not bear fruits. We did not find any. Reading through the record, we noticed that PW1 was consistent with his testimony that, the distance between a rock and the scene was about 30 to 50 paces. On cross examination, he stated that such estimated distance was about 40 to 50 paces apart. We further understood that, 40 paces is within the range of 30 to 50 paces and therefore, it cannot be a discrepancy. Regarding the 100 paces that the witness allegedly stated, we discerned that, the answer resulted from a suggestion by the learned defence counsel on the difference between 50 and 100 meters. That line of cross examination in our view, had nothing 20 to do with PW l's own position that the distance between the two points was about 30 to 50 paces. This was a fairly short distance for PW1 to clearly view the activities at the scene as he rightly testified. For these reasons, we are certain that all the issues put forward by Mr. Magwayega are without merits and thus, are hereby dismissed. In the circumstances, we are in agreement with the submissions by the learned State Attorney and consequently, we find that the appellant's conviction for the offence of murder was safe and therefore, uphold it. In the result, we dismiss the appeal in its entirety. DATED at MUSOMA this 28th day of February, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 28th day of February, 2025 in the presence of the appellant in person via virtual court from Musoma Prison and Mr. Jonas Kivuyo, learned State Attorney for the respondent/Republic; is hereby certified as a true copy of the original.