Musa Kehanga Chacha Vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: LEVIRA, J.A. MASOUD, J.A.. AND NANGELA. J.A.l CRIMINAL APPEAL NO. 537 OF 2022 MUSA KEHANGA @ CHACHA................................................ APPELLANT VERSUS THE REPUBLIC.................................................................RESPONDENT [Appeal from the Judgment of the High Court of Tanzania at Musoma] (Mbagwa, 3,1 dated the 4thday of August, 2022 in Criminal Sessions No. 28 of 2022 JUDGMENT OF THE COURT 18th 8124th March 2025 NANGELA. J.A.: The appellant, MUSA s/o KEHANGA @ CHACHA, was arraigned before the High Court of Tanzania, at Musoma, charged with murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2019. It was alleged that on the 26th day of August, 2021, at Bisarara Village, Serengeti District, Mara Region, the appellant murdered JAMES s/o MWITA @ MARWA. He pleaded not guilty to the charge and the matter proceeded to trial. To establish its case, the prosecution relied on four witnesses: MBUSILO d/o MWITA (PW1); THOMAS s/o AMOS MARWA (PW2); H9990 D/C KICHERE (PW3); and A/INSP. STEVEN (PW4). Besides, the prosecution tendered a Report of Postmortem (exhibit PI). As for the defence side, the appellant gave sworn evidence (DW1) and tendered no exhibit. The narrative regarding what happened and how may be gathered from the witnesses themselves. Briefly, on the 26thof August 2021, at around 16:30 hrs, PW1 was at her Pub, where she sells various drinks. JAMES s/o MWITA @ MARWA ("the deceased"), together with several other people, were having a drink at PWl's Pub. Suddenly, there appeared the appellant armed with a machete. Unprovoked and without uttering a word, he gruesomely attacked the deceased, cutting him on his head once. The deceased attempted to run away but fell. Seizing the moments, the appellant unleashed at him several other brutal cutting blows; cutting off the upper part of his head, separating his two arms at the shoulders, cutting his back and cutting off his legs. The deceased succumbed to death instantly thereat. The entire saddening and dramatic incident unfolded in the very presence of PW1 who, as the sole eyewitness, testified before the trial court. Her account was partly corroborated by PW2, a village chairman, who, upon rushing to the crime scene, found the appellant holding a blood-stained machete and, on the ground, observed the lifeless body of the deceased with all such brutally inflicted shocking injuries. PW2, informed the Police of the incident. PW4 (A/Insp. Steven), in the company of other police officers arrived shortly at the scene of crime. According to PW4, whose testimony lends support to that of PW2, on coming to the scene of crime, saw the deceased's lifeless body lying on the ground with the horrible cut wounds stated earlier above. In his testimony, PW4 stated that, shortly after the police's arrival at the scene of crime, he saw the appellant running away. The deceased's body was later taken to Mugumu Hospital, and one Dr. Mnalimi (now deceased) examined it and issued a Postmortem Report (exhibit PI). According to PW3, the appellant was later arrested in Kahama, Shinyanga Region, and was brought to Mugumu, Mara Region, to face trial. At his trial, the appellant raised a defence of alibi. His, was a defence that, although he was arrested while at Kahama on the 13th day of September 2021, he was not in Mugumu on the 26th of August 2021. According to him, on that material date, he was in Kahama for hawking (machinga) business. He therefore denied any involvement in the killing of the deceased. At the end of his trial, the High Court (Mbagwa, J.), found him guilty, convicted, and condemned him to suffer death by hanging. Dissatisfied with the decision of the learned trial judge, he has appealed to this Court raising two penitent grounds, to wit, that: 1. The case against [him] was not proved beyond reasonabte doubt 2. The evidence o f PW1 and PW3 [was] never corroborated [as] the prosecution [failed] to produce [the appellant's] caution statement, considered to be a key piece o f evidence to corroborate other testimonies. At the hearing of this appeal, Mr. Juma David Mwita, a learned advocate, appeared for the appellant, while Ms. Wampumbulya Shani, a learned Senior State Attorney, assisted by Messers Nico Malekela and Isihaka Ibrahim, learned State Attorneys, appeared for the respondent Republic. The appellant was also present in Court. When invited to address the Court Mr. Mwita argued the two grounds together. The gist of his submission was that the charge against the appellant was not proved beyond reasonable doubt. To amplify on that, it was his submission that, the testimonies of PW1, PW2, and PW4 had material contradictions that created uncleared doubts that went to the roots of the matter. He contended that such doubts ought to have been resolved in favour of the appellant. For clarity, Mr. Mwita drew our attention first to page 18 of the record of appeal, lines 7 to 10, where PW1 is recorded to have stated as follows: "We continued shouting untii the viliage chairman Amos Bwana came. Amos Bwana was also chased (sic) hence he went to hide and caiied the Poiice." Besides, Mr. Mwita drew to our attention page 21, lines 11 to 16 of the record of appeal, where PW2, the chairman of the village, while testifying in chief, is recorded to have stated as follows: "/ found Musa Kehanga Chacha hoiding a blood­ stained machete while chasing people away. Having seen me, Musa Kehanga left the place slowly marching. I approached the deceased body. I observed that the deceased (sic) with several cut injuries: Both feet were cut and separated..." After comparing the two testimonies of PW1 and PW2, Mr. Mwita argued, firstly, that PWl's assertion that a village chairman, Amos Bwana, had to flee for his life after arriving at the crime scene was at odds with the assertion made by the same village chairman (PW2) that he did not. Secondly;he drew our attention yet to another part of the record of appeal, to wit, page 26, lines 3-4. On that page, PW4 (As/Insp. Steven) was recorded as having stated as follows: "We went up to Musa's home, but we could not get him. We continued to pursue him, but finally he entered the nationalpark," Mr. Mwita submitted that, when what PW4 is contrasted with what PW1 stated on page 18 lines 11-12 of the record of appeal, there is a material contradiction because, on page 18, PW1 stated that the appellant ran away when he saw the police fleeing to the national park. According to Mr. Mwita, if it was true that the appellant had been seen running to the national park when the police came, why then did PW4 go to look for him at home? He argued that if this Court concurs with him that the inconsistencies identified in the testimonies of PW1, PW2, and PW4 constitute significant contradictions that render those witnesses1 testimonies completely untrustworthy, it will also conclude that PW3's testimony is the only one remaining in the appeal's record. Even so, it was a further contention by Mr. Mwita that, if analysed carefully, this Court will also find that the testimony of PW3 is wanting. He reasoned that, on page 24 of the record of appeal, line 17 thereof, PW3 is quoted to have testified to the trial court that he recorded a caution statement of the appellant, which was nevertheless not tendered in court by the prosecution and, for no reasons. He argued that that fact alone creates more doubts in the prosecution case, especially when it is considered alongside the appellants defence of alibi on page 35 of the record of appeal. Based on those observations, it was his submission that, since it was the duty of the prosecutor to prove the case beyond reasonable doubts and, given that there were unresolved contradictions raising doubts in the prosecution case that should have been resolved in favour of the appellant, the prosecution failed to prove its case beyond reasonable doubt. For her part, Ms. Shani made her stance clear that, the respondent Republic does not support the appeal but rather supports the trial court's conviction and sentence imposed on the appellant It was her submission that, when the testimony of PW1, appearing on page 18, lines 7 to 10 of the record of appeal, as pointed out by Mr. Mwita, is viewed in contrast to what PW2 stated on page 21, lines 11 to 16 of the record of appeal, as well as what PW4 stated on page 26, lines 3-4 of the same record of appeal, the end results will be a finding that there is nothing inherently contradictory in the testimonies of those prosecution witnesses. Ms, Shani gave two reasons to support her stance: first, there could have been more than one village leaders at the scene of crime, and, second, each witness testified what he/she saw at a specific moment in time when he came to the scene of the crime. Based on those two reasons she surmised that, properly analysed, there is nothing worth being regarded as material contradictions in those testimonies of PW1, PW2, and PW4 when considered as a whole. Concerning the non-tendering to the trial court of the caution statement recorded by PW3 and the issue of appellant's alibi, first, it was j Ms. Shamijs submission that, the non-tendering of the caution statement i i as exhibit in court could not have created doubts or affect the prosecution case since the witnesses and exhibits available were sufficient to prove the prosecution case to the required standard. Relying on Section 143 of the Eviderce Act, Cap. 6 R.E. 2022, she submitted that proof of a matter does not depend on the number of witnesses or exhibits tendered. t Second, she contended, as regards the appellant's alibi, that, although the appellant relied on such a defence, he ought to have supported it with some form of evidence. To bolster her stance, she referred to us the case of Shabani Haruna @ Dr. Mwagilo vs. Republic, 2017 [TZCA] 396 (1 December 2021) (TANZLII). In response to the second ground of appeal, regarding whether the prosecution proved its case beyond reasonable doubt, it was a firm stance of Ms. Shani that the case against the appellant was proved beyond reasonable doubt. She supported her stance by arguing, first, that, it was established beyond doubts that the deceased was dead, and his death was unnatural. To that effect, she relied on the testimonies of PW1, PW2, and PW4, who saw the lifeless body of the deceased with several cut wounds, as well as the exhibit PI, tendered by PW4, showing that the deceased died due to the cut wounds, which led to severe bleeding. Second, it was her reasoning that, based on the evidence of PW1, who witnessed the attack, and which was supported by that of PW2, who saw the appellant holding a blood-stained machete while the deceased's body was thereby seen laying lifeless on the ground, coupled with the conduct of the appellant, there was no doubt that it was the appellant who killed the deceased. As to conduct, she submitted that, when PW2 came to the crime scene shortly afterwards and noticed the appellant, the latter never conversed with him on anything although he knew that PW2 was a leader. Instead, the appellant started to slowly leave the scene of the crime. As regards the implication of the appellant's conduct, she referred us to the case Chalamanda s/o Kauteme vs. Republic, 2009 [TZCA] 259 (19 March 2012) (TANZLII). Her third point was that, by looking at the nature of the weapon used, the force applied by the appellant as per the nature of wounds inflicted on the deceased's body, the parts of the body attacked and the g fact that there were no quarrels save for the abrupt ambush made by the appellant on the deceased to his ultimate demise, malice aforethought was fully established. She relied on the case of Charles Bode vs. Republic, 2016 [TZCA] 46 (6 March 2019) (TANZLII), to support that position of hers. Mr. Mwita made a brief rejoinder stating that, in essence, there is no dispute that the deceased died of violent death. However, the crux of the matter, according to him, was that the prosecution had a duty to prove beyond reasonable doubt that it was the appellant who killed him. He maintained that, since PW1 and PW2's testimonies are laden with contradictions, doubts as to their reliability can and should have been entertained in favour of the appellant. Moreover, Mr. Mwita insisted that, because PW2 was not present at the scene of the crime when the attack occurred, the logical conclusion would be that he was only informed that the appellant was the one who attacked the deceased. In light of all that, he submitted in his rejoinder that not only does the prosecution's evidence lack coherence, but also the prosecution failed to discharge its responsibility to demonstrate that the appellant was present on the fateful day when the deceased was killed. Concerning the existence of malice aforethought, Mr, Mwita was of the view that the question of the type of weapon or force used could only be helpful if there was an outright admission of guilt. It was his conclusion, therefore, that, since the testimonies of PW1, PW2 and PW4 are questionable, the only testimony left is that of PW3, which also lacks corroboration given that the appellant's caution statement was not tendered. He relied on the case of Benard Masumbuko Shio and Another vs- Republic, 2007 [TZCA] 213 (23 October 2007) (TANZLII). In summary, he distinguished the cases that Ms. Shani relied on, asserting that they were irrelevant to the facts of the present appeal. When asked whether oral confession needed to be corroborated, he contended that even such confession needs to be corroborated. He referred to what Section 3 of the Evidence Act provides about oral confession and contended that the Court is bound to reasonably look at other evidence as well if it is to accept the oral confession. He therefore urged us to allow the appeal, quash the conviction and sentence and set the appellant free. Having carefully reviewed the entire record of appeal, the grounds of appeal, and considered the rival arguments fronted by the learned advocate appearing for the appellant and the learned Senior State Attorney representing the respondent Republic, we find two central issues calling for our determination. The first is whether there were material inconsistencies in the prosecution's evidence to prevent the case from being proven to the required standard. The second is whether, in the absence of the caution statement alleged to have been recorded by PW3, the testimonies of PW1, PW2, and PW4 were insufficient on their own to support conviction. As we approach the issues set out hereabove, we are mindful of the fact that this is a first appeal. It being so, it is a settled legal position that the first appellate court is entitled and, indeed, duty-bound, with very limited exceptions, to re-evaluate the entire evidence and may come to its own independent conclusions or findings. See for that matter, the cases of Deemay Daat, Hawa Burbai & Nada Daati vs. The Republic, 1994 [TZCA] 80 (5 October 2004) (TANZLII). In essence, the only limitations to the freedom enjoyed by the first appellate court are those stated in the cases of D.R. Pandya vs. R. [1957] EA 336 and Jamal A. Tamim vs. Felix Francis Mkosamali & Another, 2012 [TZCA] 110 (3 May 2013) (TANZLII). Those limitations are in relation to the issues of demeanour evidence of any of the witnesses who appeared before the trial court, the reason being that the appellate court lacks the first-hand opportunity to encounter the witnesses in real­ time. Now, based on the first issue and having stated the above principle, can it be said that the prosecution case was marred with contradictions in such a way that the charge against the appellant was not proved beyond reasonable doubt? First, as rightly submitted by Mr. Mwita, the duty to prove the guilt of the appellant was cast on the prosecution, and the standard of proof is beyond reasonable doubt. Second, we entirely agree with Mr. Mwita that, in principle, doubts, if were to be entertained, should have benefitted the appellant. However, were there material contradictions which would have created such doubts as alleged by Mr. Mwita? In his submission, the doubts which Mr. Mwita is inviting us to entertain are derived from what he considered to be material contradictions in the testimonies of PW1, PW2, and PW4, which, according to him, are substantially material in such a way that they make the testimonies of PW1, PW2, and PW4 wanting and, hence, wholly unreliable. But we pose to ask, were the so-called contradictions, if any, really material contradicts as contended by Mr. Mwita? Essentially, when it comes to evidentiary contradictions, this Court is guided by the principle that it will only consider contradictions that are not minor, and which go to the root of the matter. See the cases of Mohamed Said Matula vs. Republic [1995] T.L.R. 3 and Alex Ndendya vs. Republic, 2018 [TZCA] 207 (6 May 2020), (TANZLII). In the case of Alex Ndendya (supra), this Court, citing its earlier decision in the case of Dickson Elia Nsamba Shapatwa & Another vs. The Republic, 2007 [TZCA] 92 (30 May 2008) (TANZLII), was faced with a question: what constitutes material discrepancies or contradictions that go to the root of the matter and what are minor contradictions that do not go to the roots of the matter? To respond to that question, therefore, the Court found solace in an excerpt from the learned authors of Sakar, the Law of Evidence, 16th Edition, at p. 48, where it is noted as follows: "Normal discrepancies in evidence are those which are due to normal errors of observation normal errors o f memory due to lapse o f time, due to mental disposition such as shock and horror at the time of the occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not expected o f a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do." In the above-cited case, this Court did also accept, as a matter of principle, the observations once made by the High Court (Mnzavas, 1, as he then was) in Evarist Kachembeho & Others vs. Republic, [1978] LRT n.70, at page 351, to the effect that: "Human recollection is not infallible. A witness is not expected to be right in minute details when retelling his story” As we consider this present appeal before us, we find those principled observations quite apt and instructive in dealing with the issues we posed earlier herein above. We shall therefore be religiously guided by them as we determine the concerns raised by Mr. Mwita in this appeal. As earlier noted here above, in his submissions Mr. Mwita drew our attention to page 18 lines 8 to 10, page 21, lines 11 to 16, and page 26, lines 3-4 of the record of appeal, arguing that, in those key areas, there exist material contradictions affecting the testimonies of PW1, PW2, and PW4 and which create doubts about their reliability. We see no need to reproduce those allegedly contentious portions of the appeal's record here again, as we have already done so above. However, from Mr. Mwita's submission we note two things for our consideration: first, according to Mr. Mwita's submission, if it is to be found that those testimonies of PW1, PW2, and PW4 contain material contradictions that creates doubts that go to the roots of the matter, the benefit should go to the appellant. On that point, we have expressed out agreement with him as a matter of principle. Second, if this Court concurs with Mr. Mwita that PW1, PW2, and PW4's testimony is untrustworthy, it will also conclude that PW3’s testimony, which would be the only remaining testimony, is insufficient in and of itself to support the findings of the trial court. He argued that on page 24 of the record of appeal, line 17 thereof, PW3 testified to have recorded a caution statement of the appellant, which was nevertheless not tendered in court by the prosecution and, for no reasons assigned to that effect. But a third point, based on what Ms. Shani submitted in response to Mr. Mwita’s submission, is that, whether, when properly analysed, what Mr. Mwita deems to be material contradictions are not actually contradictions that would be considered material. In other words, whether Ms. Shani's position that considers any variance in the testimonies of PW1, PW2, and PW4 to be minor discrepancies that cannot affect reliability on those testimonies is correct. Essentially, having examined the record of appeal, it is our considered view, with much respect, that, we cannot go along with Mr. Marwa's line of argument that the testimonies of PW1, PW2, and PW4 are laden with contradictions. First, as Ms. Shani correctly argued, during their testimonies in court, each witness described what they may have seen at a specific point in time. As earlier stated herein, a witness is not expected to be right in minute details when retelling his or her story, and, for that matter, PW1, PW2, or PW4 are not exceptional to that rule. Second, as Ms. Shani argued, it is evident that there could have been more than two leaders at the crime scene if one compares what PW1 said about the village chairman on page 18 lines 7 to 10 of the record of appeal with what PW2 said about himself as the village chairman. We hold it to be so because the person who PW1 said ran for safety and called the police is not PW2, since PW2 identified himself as Thomas Amos Marwa and not Amos Bwana, who was named by PW1. Such differences in names cannot be said to be a contradiction, to say the least. Third, a further analysis of the testimonies of PW1, PW2, and PW4 shows that they are coherent in nature and substance and resonate in a pattern of the same wave lengths. For example, PW1 and PW2 agree on the questions of whether they saw the appellant at the crime scene and whether the deceased was dead. In the first place, PW2 saw the body bearing horrible cut wounds; this being a fact also aligned to what PW1 stated to the effect that she witnessed the appellant inflicting the deceased mercilessly. Furthermore, PW2 saw not only the appellant with a blood-stained machete but also the horribly mutilated body of the deceased laying on the ground right where the appellant was. Likewise, it was the testimony of PW4 that he saw him running shortly after PW4 and his team of police arrived at the scene of the crime. Whether PW4 went to look for the appellant at his home afterwards or not is immaterial. What is of substance is that they properly identified the appellant as the very person who committed the horrendous crime in a horrendous and unimaginable design. As Ms. Shani correctly argued, therefore, when the testimonies of PW1, PW2, and PW4 are examined holistically, there are no significant contradictions that warrant highlighting. Instead, what may be observed are minor discrepancies concerning the time when one incident succeeded the other or what came first and what followed, which, as we noted earlier, are normal owing to human frailty in making a perfect reconstruction of the past. Such minor discrepancies will necessarily fall under the deminis rule. In his submission, Mr. Marwa drew our attention to yet another point, which he connected to his submission about the inconsistencies he had brought up. This had to do with PW4's failure to tender a caution statement. In our view, we need not be detained by such a point since, as correctly stated by Ms. Shani, it is not the number of witnesses or exhibits that will have a party win a day in court. Section 143 of the Evidence Act is apt on that. It was up to them to decide whether they were certain that the evidence they had on hand was sufficient to bolster their case, and their decision could be favourable or unfavourable depending on how their case turned out. In fact, in the case of Flano Alphonce Masalu @ Singu vs. Republic, 2018 [TZCA] 366 (30 April 2020) (TANZLII), this Court considered such a point regarding the prosecution's failure to tender an exhibit in Court and it was ruled that such a failure may not and should not be taken to mean the offence committed was not committed. When there is other vital evidence to support conviction, a court may properly convict. In the present appeal, we take a similar position and state that our re-evaluation of the entire evidence on record leads us to the conclusion that the prosecution case was proved beyond reasonable doubt. In our view, and as rightly submitted by Ms. Shani, the testimonies of PW1, PW2, PW4 and exhibit PI were sufficient to warrant conviction. Firstly, PW1 was an eyewitness who perceived with her own naked eyes how the appellant brutally inflicted fatal cut wounds on the deceased to the extent of dismembering his body. Secondly, and in connection to that same point, we are mindful of the factors that may affect an eyewitness's testimony, as considered in the cases of Philimon Jumanne Agala @ 34 vs. Republic, 2015 [TZCA] 187 (26 October 2016), (TANZLII) and Felician Joseph vs. Republic, 2011 [TZCA] 152 (28 May 2012), (TANZLII). In the Felician Joseph's case (supra) this Court noted that: "It is a mundane truth that "the criminal justice system reiies heavily on eyewitnesses to determine the facts surrounding criminal events. Eyewitnesses may identify culprits, recall conversations, or remember other details. An eyewitness who has no motive to lie is a powerful form of evidence forjurors, especially if the eyewitness appears to be highly confident about his or her recollection. In the absence o f definitive proof to the contrary, the eyewitness's account is generally accepted by the police, prosecutors, judges, and juries." (Emphasis added). In our view, since there was no question in the current appeal as to whether PW1 or PW2 correctly identified or recognised the appellant, and since there is no proof that PW1 had any reason to fabricate the claim that the appellant had attacked the deceased in her own eyes, we believe that the trial court could have found the appellant guilty based solely on her testimony. But thirdly, there were as well the testimonies of PW2, PW4, and exhibit PI, which, weighed together with that of PW1 and in light of the appellant's defence, gave a clear picture, which would entitle any right- minded trial court to find the appellant guilty and convict him accordingly. In view of all that we have endeavoured to analyse and explain hereabove, we see no reasons why we should disturb the findings that the trial court arrived at. In the circumstances of this case, we think that the trial court rightly convicted the appellant, as the prosecution case had been proved beyond reasonable doubt. We therefore reject both grounds of appeal. All said and done, we find this appeal to be devoid of merit. We therefore dismiss it in its entirety. Order accordingly. DATED at MUSOMA this 22nd day of March, 2025. M. C. LEVIRA, JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 24thday of March, 2025 in the presence of the Appellant in person and Ms. Joyce Godfrey Matimbwi, learned State Attorney for the respondent/Republic, is here by certified as a true copy