CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MUGASHA, J.A., MASHAKA, J.A. And ISSA. J J U CRIMINAL APPEAL NO. 684 OF 2020 CHACHA MATAHE @ CHACHA @ CHACHA MATAHE........................ APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Kahyoza, 3,1 dated the 26th day of October, 2020 in Criminal Session No. 47 of 2019 JUDGMENT OF THE COURT 21st &. 25th October, 2024 MUGASHA, J.A.: In the High Court of Tanzania sitting at Musoma, Chacha Matahe @Chacha the appellant herein was arraigned and convicted for the offence of murder contrary to section 196 of the Penal Code, Chapter 16 of the Revised Laws. It was alleged by the prosecution that, on 17/6/2015 at Nyakunguru village within Tarime District in Mara Region, the appellant did murder one Ghati Mwita @ Iloga. Upon conviction, he was sentenced to death by hanging. Undaunted, the appellant seeks to impugn both the conviction and sentence. A brief factual account underlying the present appeal is gathered from five prosecution witnesses, two documentary exhibits namely, the Post mortem examination report of the deceased PI, the sketch map of the scene of crime P2 and the appellant who was the sole witness for the defence. From a total of five witnesses and two documentary exhibits, the prosecution sought to establish the following: On the fateful day, at around 09:00 hours while Mary Ghati Thomas, PW1 was at home with one Penina, noticed that there was a fight between some people. Upon going outside she saw the appellant quarreling with one Julius Mwita who was struggling to block the appellant to access the precincts of the deceased who was selling liquor. It is alleged that as the appellant was determined to injure the deceased, he forcefully struck the door with a hammer, entered into the house and using the same hammer did hit the deceased twice on the head. On seeing this, PW1 became unconscious and could not understand what was happening. Upon regaining consciousness, PW1 found the deceased lying down. According to PW1, the appellant was not a stranger to her because he used to pick gold bearing materials with her sister for a period of two years. Although PW1, claimed to have witnessed the appellant attacking the deceased, when cross-examined she recounted to have locked herself in the room together with others after being threatened with the appellant. Then the appellant entered in another room and those present therein were Ghati Mwita Patrick, Yahe Mwita and Ngwale. PW1 left the place and called for help. When giving clarification to a question raised by the assessors, she stated to have seen the appellant quarrelling with one Julius Mwita who pleaded with the appellant not to attack the deceased. Apparently, the deceased died on the spot. Upon learning what had befallen the deceased, her brother Merengo Isaya Merengo, PW2 rushed to the scene of crime found the appellant lamenting that he was injured by the deceased whereas the lifeless body of his deceased sister was lying down with serious injuries on the head. Consequently, the appellant abandoned his motorcycle and disappeared while the body of the deceased was taken to Tarime hospital. Upon being examined, according to the autopsy report exhibit PI the deceased died due to brain damage and haemorrhage. It is worth noting that, although the appellant denied to have killed the deceased intentionally, throughout the preliminary hearing and the trial, he maintained to have accidentally killed the deceased in the course of a fight following a quarrel between them after he had addressed the deceased as "msagani" which means a younger lady. The deceased was furious and she pushed the appellant who fell down and sustained head injuries. The appellant retaliated by pushing the deceased who fell on iron bars and empty bottles and she was later reported dead. It is during the burial when the appellant realized the fight resulted to the death of the deceased. Although the appellant throughout remained within the vicinity, he was arrested three years later on 20/6/2018 and arraigned in court with the charged offence of murder. On the whole of the evidence, the learned trial Judge was satisfied that the appellant killed the deceased and that he did so with malice aforethought. As earlier stated, the appellant was convicted forthwith and sentenced to the mandatory death sentence. Before us, the appellant who seeks to demonstrate his innocence has canvassed a total of nine grounds of complaint contained in the memoranda of appeal together with the written arguments in support of the appeal. However, at the hearing he abandoned other grounds and remained with only four grounds as hereunder: 1. That, the learned trial Judge erred in law and fact when he did not consider that the appellant caused the deceased's death without malice aforethought 2. That, the learned trial Judge grossly erred in law for relying on the circumstantial evidence without any corroborative testimony from the alleged arresting police officer, let alone an investigator o f the case. 3. That, the learned trial Judge erred in law and fact in failing to note that the identification evidence tendered in Court by the prosecution was not watertight to ground conviction. 4. That, the learned trial Judge erred in law and fact by convicting the appellant while the prosecution failed to prove its charge beyond any reasonable doubt as it failed to tender before the trial Court the alleged offensive weapon that is the hammer. At the hearing, the appellant was represented by learned advocate Daud John Mahemba who adopted the written arguments in support of the appeal. The respondent Republic had the services of Mr. Erasto Anosisye learned Senior State Attorney who co-appeared with Mr. Isihaka Ibrahim and Ms. Beatrice Mgumba, both learned State Attorneys. The appeal was opposed by the respondent. At the outset, it is pertinent to point out that, it is not in dispute that it is the appellant who caused the death of the deceased. However, whereas the appellant claims that the killing was accidental, the prosecution has maintained that the killing was with malice aforethought. In the circumstances, the crucial issue for determination is whether the appellant killed the deceased with malice aforethought which is defined under section 200 of the Penal Code [CAP 16 R.E. 2002] thus; "Malice aforethought shall be deemed to be established by evidence proving anyone or more o f the following circumstances- (a) an intention to cause the death o f or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death o f or grievous harm to some person, whether thatperson is the person actually killed or not, although that knowledge is accompanied by indifference to 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 o f any person who has committed or attempted to commit an offence". Under the cited provision, it is crystal clear that malice aforethought can be established where intention or knowledge that the act or omission could cause death or grievous harm to a person is proved. On account of the evidence on the record, we have now to determine if the appellant killed the deceased with malice aforethought. In this regard, parties locked horns on the nature of weapon which made the deceased to suffer fatal injuries. While the appellant recalled to have pushed the deceased who sustained the fatal injuries having fallen on pieces of iron bars and empty bottles, it was the submission of the prosecution that the appellant did struck the deceased with a hammer in the presence of Julius Mwita, Ghati Mwita Patric, Yahe Mwita and Ngwale. However, none of them was paraded as a witness to confirm PWl's account. Therefore, the trial relied on solely PWl's account to ground the conviction of the appellant. It is settled law that, the court after warning itself, can rely on the evidence of a sole witness to ground the conviction for the offence of murder provided that such evidence is credible. See: YOHANIS MSIGWA VS REPUBLIC [1990] U R 148. On the other hand, in opposition of the appeal, it was submitted that, the killing was with malice aforethought because initially, the appellant uttered threats before proceeding to kill the deceased using a hammer by striking her on the head. In this regard, it was argued that, given the nature of weapon used and volatile area which was struck, the appellant killed the deceased with malice aforethought. To bolster her stance the learned State Attorney cited to us the case of ENOCK K1PELA VS REPUBLIC, Criminal Appeal No. 90 of 1994 (unreported). On being probed, the learned State Attorney conceded that the absence of the investigator and other material witnesses adversely impacted on the prosecution case surrounded with uncertainties on circumstances surrounding the occurrence of the offence at the scene of crime. Yet, she maintained that the credible account of PW1 suffices having established that it is the appellant who intentionally killed the deceased using a hammer. Given the two varying accounts as to what caused the fatal injuries causing death of deceased, the lingering question is whether PW1 gave a credible account to warrant the conviction of the appellant. At this juncture, it is incumbent on us to reconsider and re-evaluate the entire evidence sitting as the first appellate court to determine the credibility of PWl's account by assessing its coherence and consistency when considered in relation to the evidence of other witnesses including the appellant. See: OKENO VS REPUBLIC [1972] E.A.32) and PETERS VS SUNDAY POST LIMITED [1958] E.A 424), GOODLUCK KYANDO VS REPUBLIC [2006] TLR 363, YASIN RAMADHANI CHANG'A VS REPUBLIC [1999] TLR 489 and SHABANI DAUD VS REPUBLIC, Criminal Appeal No. 28 of 2001 (unreported). In the premises, we shall be guided accordingly by the stated principles to determine the appeal before us. As earlier stated, it is not contentious that the death of the deceased was unnatural and it was caused by the appellant. It is settled law that the prosecution bears the burden to prove beyond reasonable doubt that, indeed it is the appellant who killed the deceased with malice aforethought. The follow up question is whether the prosecution did discharge the required burden which takes us to revisiting the evidence of PW1. At the outset, we do not think that PWl's evidence was credible to warrant the conviction of the appellant. We are fortified in that regard, because PW1 gave a varying account on how she witnessed the fateful incident. Initially, she told the trial court that, after the appellant accessed the household and attacked those who were inside including PW1; she lost consciousness and upon regaining the same, found the lifeless body of the deceased lying on the ground. Another version given by PW1 upon being cross-examined is that, when the appellant threatened them, she locked herself inside the room and later left the scene. Yet, in another instance she testified to have seen the appellant using a hammer while the deceased was outside. What tasked our mind is that in the event PW1 was unconscious after the attack and was locked inside a different room, she was not in a position to see the appellant striking the deceased who was outside the house. Moreover and contrary to PWl's account, PW2 who was the first person to rush to the scene of crime did not see any person there because according to him, those who informed him about the fateful incident were scared to go to the scene of the crime. Yet, if PW1 saw the appellant beating the deceased as she claims, given that the appellant was throughout in the village and took part in the burial of the deceased, his arrest after the expiry of three years leaves a lot to be desired which renders PWl's account on what transpired at the scene of crime unreliable and highly suspect. See: MARWA WANGITI VS REPUBLIC [2002] TLR 39. That apart, according to PW1 those present on the fateful incident included Julius Mwita who as alluded is said to have blocked the appellant from accessing the house of the deceased. In this regard, if the appellant was armed with the hammer as alleged by PW1, then the person who blocked him to access the household was better placed to see the appellant with such a weapon. This was no other but Julius who was for reasons best known to the prosecution not paraded as a witness. This, indeed, weakened the prosecution case because it is settled law that, where for an undisclosed reason, a party fails to call a material witness on his side, the Court is entitled to draw an inference that if the witness were called they would have given evidence contrary to their interest. See: HEMED SAID VS REPUBLIC, [1984] TLR 113. In the premises, this Court draws an adverse inference that if Julius Mwita was summoned, he could have testified contrary to the prosecution's interest and probably, this made the prosecution not to parade him as its witness. In view of what we have endeavoured to demonstrate, in the wake of the incredible PWl's account and absence of material witnesses to ascertain if at all the appellant was armed with a hammer which he used to strike the deceased, it is highly unsafe to conclude that, the appellant killed the deceased with malice aforethought. Therefore, the case of ENOCK KIPELA VS REPUBLIC (supra) cited to us by the learned State Attorney is distinguishable considering the circumstances obtaining in the present case. Having discredited the prosecution account we thus go along with the appellant's defence who gave a narration of what actually transpired at the scene of crime as reflected at pages 17 and 18 of the record of appeal as hereunder: "On the 17th day o fJuly 2015,1 left my shamba, took a bath, and went at Kutoro Center to visit my friend. We started drinking. I stayed there until 03:00 PM. Quarrels/ arguments commenced between me and the iady who was selling beer. I called that lady "Msagani" meaning younger iady. I was joking. She became .angry. She told me go away with your drunken. She pushed me against the wall: I fell down injuring my heard. I pushed her too. She fell, I was bleeding. I got out and went home. I got informed that the deceased was taken to hospital. Later on 19/7/20151 heard that the deceased passed away. I went to mourn the death. I came to learn that the deceased died because she fought at the bar. They did disclose a person who fought with the deceased..." During cross-examination the appellant recalled among other things, as follows: " Yes I killed the deceased with no malice aforethought ......... I pushed the deceased she fell on pieces o f iron (mavyuma vyuma).... The deceased fell on a lot o f things, there were empty containers and empty bottles." From the extracts above, it is evident that the killing of the deceased was preceded by a fight between the deceased and the appellant which negates the element of malice aforethought. In the circumstances, we agree with the appellant's counsel that charge of murder against the appellant was not proved beyond reasonable doubt. Instead, had the learned trial Judge considered the appellant's evidence he should have entered conviction on the lesser offence of manslaughter. Consequently, we find merit in grounds 1 and 4 of the appeal, quash the conviction and sentence for the offence of murder and substitute it with manslaughter. Given that the two grounds are sufficient to dispose of the appeal we shall not determine the remaining grounds of appeal. Since the appellant has remained behind bars for more than six years, we allow the appeal up to the term served and order his immediate release unless if he is held for another lawful cause. DATED at MUSOMA this 25th day of October, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 25th day of October, 2024 in the presence of Appellant in person and represented by Mr. Daud John Mahemba, learned advocate and Ms. Beatrice Mgumba, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL