20130301 TZHC Dodoma

IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA (CORAM: KILEO, J.A., LUANDA, J.A., And ORIYO, J.A.) CRIMINAL APPEAL NO. 222 OF 2010 . EGIDIUS LUGEMALILA •• I ••••••••• I ••••• I I •••• I I I •••••••• I •••••• I •••••••• APPELLANT

VERSUS THE REPUBLIC ••••••••.••.•••••..••••.•..••..••••••.••...•.••••••••••••.•...• RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Dodoma) (Mwangesi, J.) dated the 30th day of June_, 20~0 in Criminal Session No. 64 of 2005

JUDGMENT OF THE COURT I 25 th February, & 1 st March, 2013 KILEO. J. A.: The appellant, Egidius Lugemalila was charged with and convicted of manslaughter contrary to section 195 of the Penal Code. Being dissatisfied t with the conviction and sentence he has preferred the present appeal before us. At the hearing of the appeal he was represented by Mr. Zakayo Njulumi, learned advocate who had also filed a written submission in support of the grounds of appeal. The respondent Republic was represented by Mr. Angaza Mwipopo learned Senior State Attorney .. The following backgr·ound facts to this appeal are not in dispute: Prior to the incident in which the deceased, (a police man) No. D. 4322 CPL Laban lost his life, the appellant had been employed by the Prevention and · Combating of Corruption Bureau as an investigation officer. On the fateful day he was assigned to arrest the deceased who was alleged to be involved in an act of bribery. A trap was laid. The appellant and his colleague (DW2) accosted the deceased in a restaurant where PWl was an attendant as soon as he had received the money in order to arrest him. The deceased resisted the arrest and a scuffle ensued. In the course of the scuffle the deceased kicked a pot of boiling tea which splashed on and injured DW2. There after the deceased managed to get out and started running away with the appellant in pursuit. The

pursuit ended in the police station where the deceased fell after he had been hit by a bullet from the pistol that was in the appellant's possession. The prosecution's case at the trial and which has been maintained on appeal is that there was no scuffle at the scene of crime which might have resulted in accidental shooting as claimed by the appellant. 2 Mr. Njulumi filed and argued on the following five grounds of appeal on behalf of his client: 1. That the trial court erred in law and on facts in misconceiving the evidence of PW4 which caused injustice to the appellant.

2. That the trial court ought to have given the appellant the benefit of doubt.

3. That the trial judge ought to have drawn an adverse inference for the prosecution's failure to tender in evidence of a sketch map of the scene of crime which could have corroborated the evidence of PW4.

4. That the trial judge ought to have resolved the contradictory evidence of PW4 and PW3 in that PW3 deposed that the deceased sustained injuries on the right side of his stomach while PW4 deposed that the appellant and the deceased were chasing each other, 5. That the trial judge erred in law and on facts for failure to analyze and consider seriously the defence evidence. 3 Looking at the case as a whole, it appears to us that the matter revolves around the question whether or not there was a scuffle at the scene of crime which resulted in an accidental discharge of the bullet from the pistol that was in the appellant's possession. We will accordingly discuss the appeal generally instead of addressing one ground after another. Mr. Njulumi argued that the appellant should have been given the benefit of doubt because the prosecution did not rebut the allegation from the appellant that there was a scuffle just before the bullet was discharged. The learned counsel also contended that the learned trial judge misconstrued the evidence of PW4 resulting in injustice to the appellant. In his submission he referred to a statement made by the trial judge in his judgment where he stated: '~ ....... the witness did further tell the court that, the said sound was followed by the act of the deceased to fall down. And further that the accused did reach at where the deceased was after he

had fallen down..... "The learned counsel argued that the above statement may be interpreted to mean that the appellant shot the deceased at a long range thus negating the possibility of accident. The learned counsel pointed out further that the location of the injury caused by the bullet which was on the right side of the stomach was consistent with the 4 assertion of the appellant that there was a scuffle; otherwise if the appellant had shot the deceased as he was chasing him from behind the injury would have been at the back. Mr. Mwipopo on the other hand argued forcefully that there was no scuffle at the scene of crime. He pointed out that their key witness, PW4 who saw the appellant and the deceased chasing each other did not see any scuffle and that therefore, the trial judge was justified to find that there was no scuffle. Having carefully considered the matter before us we have come to the settled mind that the learned trial judge made some statements in respect of the testimony of the prosecution's star witness which might have clouded his objective assessment of the evidence that was adduced before him. In addition to the statement quoted above the trial judge stated in his judgment at page 122 of the Court record in relation to the testimony of PW4 that "The witness did categorically deny to have ever witnessed the accused holding each other with the deceased "Our

careful reading of the evidence of PW4 did not reveal to us anywhere where the witness denied categorically to have witnessed the accused holding each other with the deceased. It is also not in the evidence of PW4 that the "accused did reach where the deceased was after he had already fallen down." We are 5 . ' satisfied, and we agree with Mr. Njulumi that the learned trial judge misconstrued the evidence of PW4 and this in our considered view clouded his objective assessment of the whole circumstances surrounding the case. For example, if the deceased was shot by the appellant as he was pursuing him from behind then no doubt the injury sustained would have been at the back not on the right side of the stomach as testified to by witnesses and supported by the postmortem examination report. Further still, the evidence showed that even before the deceased took to his heels there was a scuffle as he resisted his arrest which ended in boiling tea splashing on DW2. We are of the view that the possibility of another scuffle could not be ruled out especially considering the location of the bullet injury. The prosecution had the burden of proving their case against the appellant beyond reasonable doubt. We are settled in our minds, given the circumstances of this case, that they did not discharge that burden. The appellant was entitled to the benefit of doubt. The above consideration

is sufficient to dispose of this appeal. In the result we find the appeal by Egidius Lugemalila to have been filed with sufficient cause for complaint. We accordingly allow it. His conviction is quashed and sentence is set aside. We have been informed that the 6 / I ·t. appellant has already finished serving the prison term that was imposed upon him. An order for his immediate release would in the circumstances be superfluous. It suffices to say for the record that the sentence is set aside. DATED at DODOMA this 26th Day of February, 2013. E. A. KILEO

JUSTICE OF APPEAL B. M. LUANDA

JUSTICE OF APPEAL K. K. ORIYO

JUSTICE OF APPEAL I certify that this is a true copy of the original. ~

COUR 7 .... : . • . Briefly the prosecution case which was found credible by both lower . . courts was that a day prior to. th.~ ,date of the incident, the appellant took a .,· .·· ·m.obile phone of Efizabeth. Bendiq:o: (PW2) unnoticed and of course without · · her consent while she was at a certain shop within Singida Municipality. ; ' On inquiry about her phone to those people who were at the shop, she . . was told it was the. appellant who took it. S_ince the· appellant had taken -alcohol and she knew he was rude, she did not make any follow up. On·the .following .day;- PW2 ·approached the appellant and requested . . . . . . . . : .. .. . . . . for the return of her pho'ne; Instead of returning the phone, the appellant gave a condition for the return of the hand set phone that is, Zinduna . · Jumanne (PWl)~ the victim, shC>uld see him first. Indeed PW2 and PW1 were . friends and-that they shatedthat_hand set of the mobile phone. PW2 delivered that message and PW1 agreed to meet the appellant. But PW1 .did. not go ·alone, she went with her young sister one Afsa Jumanne (PW3). PW2 remained at her residence .. ·_· .· . Not long after that conversation PW3 arrived at PW2's residence with · ·_·_ th~- phone .. which· she·snatched .from the appellant and gave it to PW2. PW3 then returnedto the pla~~·wh~re. she had left the appellant and PWl. 2