20091026 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA

ATTABORA (CORAM: KIMARO, 1A., MBAROUK, 1A., And MASSATL iA.) CRIMINAL APPEAL NO. 231 OF 2005 0 BEDI Sj'O ANDREA ............................ APPELLANT

VERSUS THE REPUBLIC .................................. RESPONDENT (Appeal from the conviction of the Resident Magistrate's Court Kigoma at Kigoma) (Awasi, PRM/Extended Jurisdiction) dated the 30th day of September, 2005 in Criminal Sessions Case No. 7 of 2005

JUDGMENT OF THE COURT 21 & 27 October 2009 MASSATI, l.A.: The Appellant was charged and convicted of murder contrary to section 196 of the Penal Code (Cap 16 RE 2002) and sentenced to death by hanging by the Resident Magistrate's Court of Kigoma (S.J. Awasi, PRM-Extended Jurisdiction). It was alleged that he murdered one NELSON JAMES, on the 2nd day of August, 1998 at Muhange Village within Kibondo District, Kigoma Region. Aggrieved, he has appealed to this Court against both conviction and sentence. 2 Before this Court, the Appellant was represented by Mr. Method Kabuguzi, learned counsel, who also represented him in the lower court, and the Republic was represented by Mr. John Rwabuhanga, learned Senior State Attorney. The undisputed facts of the case according to the MEMORANDUM OF MATTERS NOT IN DISPUTE compiled by the trial court were: That the deceased and the accused knew each other and they were both residents of the village of Muhange, Kibondo. That the deceased was stabbed to death with a knife on 2/8/1998 and that he died instantly. That the cause of death is as depicted in the post mortem report. 'V 3 According to the post mortem report which was admitted as Exh. P1, the cause of death is recorded as due to haemorrhage. The main issue therefore was whether, it was the appellant who killed the deceased. The prosecution produced three witnesses to prove the facts

in dispute. According to PW1, MAENDELEO MSIKWA the deceased's wife, the deceased had gone out that evening. When he came back, he told her that a certain NICOLAS had teased him, that he could not take care of his wife and that he would kill him with a knife. He also told her that NICOLAS had intended to co-opt OBED (the Appellant) to teach him a lesson. Later at 8.00 p.m. that night he heard voices of NICHOLAS and the Appellant calling the deceased's name. She also testified to have physically seen the duo. The deceased went out and followed the two. Later, she heard that her husband was lying dead in the main road. She went and saw him. V 4 She told the group of people she met there that her husband had gone out with the appellant and NICOLAS. PW2, VICTORIA DAMAS testified that she responded to a loud bang on the road, near her home. She saW 2 people standing and the third one lying down. She met the appellant still standing there while the other who was standing left. The witness said that according to the appellant, someone namely, NICOLAS had beaten the deceased with a stick and left. When PW2 and her son tried to call the name of the victim, the appellant too ran away from the scene. PW3 C 8149 DEl. SERGEANT SAMWEL informed the trial court that he was the one who went to the scene of crime, drew a sketch map, and found the deceased bleeding; and had a wound on the left

side of the breast. He was informed by one Laban Damas, that he met the appellant OBED at the scene of crime. Efforts to track down the appellant and the other suspect that same night V 5 proved futile. The search in Nicolas's house was fruitless. The appellant was later arrested at Kahama. As for the defence, the appellant denied to have killed the deceased. His version was that on the7/8/1998 he visited a certain RAYMOND SEBASTIAN to claim his Shs.8,000/= that the latter owed to him. RAYMOND asked him to accompany NICOLAS (his younger brother) to RAYMOND'S wife to collect the money. He did, and got his money. On their way back, he stood by the road side to answer a call of nature, as NICOLAS watched. After finishing he went to join NICOLAS, and met the deceased roughing up NICOLAS. He tried to separate them as the deceased slapped NICHOLAS on the face before falling down. Nicholas took to his heels. Later PW2 joined them. He told her what happened. As people began to throng the scene, he too ran away in fear for his life. He ran to his uncle Damian's house. The latter told him that he was being suspected of killing Nelson (the deceased) and so advised him to escape. After 2 days, he left to Kahama. He was arrested one week later. 6 V It was on the basis of this evidence that the trial court convicted the appellant. In so doing, the trial court, cognisant of the fact that the

case was based on circumstantial evidence, found that the available circumstantial evidence was sufficient and corroborated enough to ground a conviction. The next question is whether the circumstantial evidence on record is sufficient to ground a conviction. Against that finding, Mr. Kabuguzi had filed two grounds of - - appeal, which he argued together. It was his view that the trial court erred in law and fact in finding that the offence, with which the appellant was charged was proved beyond reasonable doubt for the following reasons. First, none of the three prosecution witnesses witnessed the commission of the offence. So the prosecUtion case rested on circumstantial evidence. Second, the circumstantial evidence on record was not conclusive; because what the deceased told his wife, PW1, on the alleged motive of the killing was hearsay evidence and incredible; so motive was not established. On the V V other hand PW2 only saw the appellant standing beside the deceased's body. The Appellant offered an explanation as to what happened; PW2 also explained the circumstances that forced the appellant to run away from the scene of the crime. Thirdly, the appellant's mere presence at the scene of crime was not sufficient to ground a conviction. Fourth, the appellant offered a reasonable explanation for his flight from the scene of crime and the village. Fifth, the appellant's

conduct in not fleeing immediately as Nicolas did, showed that he was innocent. Sixth, if the appellant had a common intention with Nicolas he would not only have run away along with the alleged conspirator, but also not have revealed his identity. So the trial court deduced the existence of common intention by speculation rather than real evidence. In support of his arguments Mr. Kabuguzi cited the decision of this Court in ABDUL MUGANYIZI vs REPUBLIC (1980) TLR 263, and urged the Court to allow the appeal as it was his contention that the chain of circumstantial evidence was not unbroken. On his part, Mr. Rwabuhanga informed the Court that the Republic did not support the conviction. He fully supported the submission made by Mr. Kabuguzi, and in addition, submitted as follows. First the trial court gave undue weight to the existence of a grudge between the appellant and PW1, over their failed friendship, because this happened 3 years ago, when the appellant was only 12, and still childish, in which case it was unreasonable for the court to infer that the appellant still held a grudge against PW1. Second, PW2 found the appellant at the scene who offered an explanation as to what happened and even mentioned Nicolas as the assailant. The witness also said that even the Appellant was surprised as to what had happened. Third, the appellant gave a plausible explanation in his

defence. Fourth, common intention was not proved. He therefore prayed that the appeal be allowed. He cited to us the decision of this Court in MWAKASUKA & OTHERS v REPUBLIC (1990) TLR 17 also listed by Mr. Kabuguzi, in his list of authorities. We asked Mr. Rwabuhanga to give us his opinion on whether in the circumstance it was possible to establish common intention in the 9 absence of Nicolas, the alleged assailant. The learned Senior State Attorney, was of the view that in such circumstances, no common intention could be established, and in the absence of cogent evidence as to who stabbed the deceased, the appellant ought to be given the benefit of doubt. It is common ground that the evidence used to convict the appellant, was in the main, circumstantial, as none of the prosecution witnesses saw the commission of the offence. There is however, no dispute that the appellant was found by PW2 atthe scene of crime before fleeing. So much has been said and written about the value and tests to be applied in treating circumstantial evidence. Thus in TUMUHERE v UGANDA (1967) EA 328 at p. 331 it was said: "It should be observed that there is nothing derogatory in referring to evidence against an accused person as circumstantial indeed circumstantial evidence in a criminal case is 10 often the best evidence in establishing the commission of a crime by a person." In Rv GANGOLO s/o IBALWE

(1937) EACA 66, Rv NDARIA s/o KARUGI AND OTHERS (1995) 12 EACA 84, and Ry WAN)EKWA (1944) II EACA 93, it was said that corroboration need not be direct evidence. Circumstantial evidence is often used to connect the accused with the offence; otherwise, many crimes could not be brought to justice. So much for the value of circumstantial evidence. There is also a string of authorities culminating in SIMON MUSOKE yR (1958) EA 715, on the test to be applied in evaluating circumstantial evidence. It has severraty been said by the Eastern African Court of Appeal; that: (1) In dealing with circumstantial evidence each link in the chain must be carefully tested, and if in the end it does not lead to the irresistible conclusion of the accused's guilt, the whole chain must be 11 rejected SAMSON DANIEL yR (1934) 1EACA46. In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused Rv KIPKERING ARAP KOSKE AND ANOTHER (1949) 16 EACA 135. A mere aggregation of separate facts, all of which are inconclusive in that

they are as consistent with innocence or with guilt, has no probative force CHHABILDAS D. SOMAIYA yR (1953) 20 EACA 144. 12 Whilst circumstantial evidence, when it stands alone, is to be disregarded unless it is inconsistent with any hypothesis other than guilt it may be of great value as corroboration of other evidence. BALAND SINGH yR (1954) 21 EACA 209. Circumstantial evidence, to sustain a conviction must point irresistibly to the accused. Rv GEORGE WILLISON SENKATUKA (1946) 13 EACA 89. In cases entirely based on circumstantial evidence, suspicion is not enough. Rv ISRAILI EPUKU S/0 ACHETU (1934) 1 EACA 166. In a case depending conclusively upon circumstantial evidence, the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with innocence of the accused, and incapable of explanation 13 upon any other reasonable hypothesis than that of guilt. SIMON MUSOKE yR (1958) EA 715. In ELISHA NDATANYE yR Criminal Appeal No. 51 of 1999 (Mwanza) (Unreported) this Court observed that MUSOKE's case settled the applicable law on circumstantial evidence. In the present case, we note that the trial court referred to TUMUHERE's case (supra) but as observed above that case only appreciates the value of circumstantial evidence, but it did not set out the tests to be applied in evaluating such evidence. The trial court fell into a pitfall in regarding

that as setting out the test, and so misdirected himself in analyzing the circumstantial evidence based thereon. Based thereon he drew several inferences; namely: First, since NICOLAS had quarreled with the deceased that day and promised to find other people to kill him with a knife, and since OBEDI and NICOLAS were friends and since OBEDI was possibly be grudged to PW1, there was common intention between the Appellant j 14 and NICOLAS to kill the deceased. And since the deceased was killed that same day, and since the Appellant was later seen at the scene of crime before fleeing from the village, the appellant must have been the one who killed NELSON JAMES. But had he directed his mind to the test on circumstantial evidence as enunciated in MUSOKE's case, he should have gone further to consider all the evidence on record and satisfy himself whether the inculpatory facts were incompatible with the innocence of the appellant. On our part, we agree with both learned counsel, that the - circumstances listed by the trial court as implicating the appellant, were inconclusive, in that not only are they consistent with innocence as with guilt, but also that the appellant offered a plausible explanation of his innocence. We have our reasons. First when Nicolas uttered the alleged threats to the deceased the appellant was not there. Second, there is unchallenged evidence from

the appellant that he and NICOLAS had gone to collect his money from RAYMOND's home and on the way they met the deceased. That could explain how PW1 met the three of them. And even if she saw 15 them talk, she did not hear what they were talking. The appellant's presence on the scene of crime could not necessarily mean that he was the one who killed the deceased; for it is trite law that mere presence at the scene of crime did not necessarily draw an inference of guilt. Third, the appellant gave a plausible explanation as to what happened, who hit the deceased and why he fled from the scene and the village. Fourth, the appellant was not found with any weapon that could have been associated with the cause of death of the deceased. It is for the above reasons that we think that the circumstances were not incompatible with the innocence of the accused and capable of an innocent explanation and so in their totality no inference of guilt could be drawn. We are the further view that the trial court also wrongly applied the doctrine of common intention. As this Court observed in SHIJA LUYENKO yR Criminal Appeal No. 43 of 1999 (Mwanza) (Unreported) in order to bring Section 23 of the Penal Code (Cap 16 - RE 2002) into play; it must be proved: 16 that two or more persons of whom the appellant was one, each formed an intention to prosecute a common purpose in conjunction with

the other(s). the common purpose was unlawful. that the parties or some of them including the appellant commenced or joined in the prosecution of the common purpose. that in the course of prosecuting the common purpose, one or more of the participants murdered the deceased; and that the conviction of the murder was a probable consequence of the prosecution of the common purpose. In the present case there is no evidence of what unlawful common purpose the appellant and Nicolas had set out to prosecute; in the IN 4/ 17 course of which the deceased was killed. We are thus unable to see how Section 23 can be applied on the facts. We are also aware that in LUYEKO's case the Court found that there was sufficient evidence of the appellant having procured the commission of the offence because he had hired Lifa Nkinga to kill the deceased. The Court placed the appellant within the ambit of section 22 (a) of the Penal Code and so found, that he was rightly charged and convicted of actually committing the murder. In the present case, there is no evidence that the appellant procured or counseled the killing of the deceased. Since the appellant's assertion that it was Nicolas who threw the fatal blow/hit to the deceased was not challenged, and in the absence of Nicolas, who, if true, would fall within the ambit of Section 22 (a) of the Penal Code as the person who actually did so, and as

the learned Senior State Attorney had correctly submitted, the appellant would be entitled to the benefit of the doubt. This is the more so, because as this Court said in MATHIAS MHYENI AND ANOTHER (1980) TLR 17: 41 ri 18 "Where in the absence of common intention, it is not possible on the evidence to say which accused person jointly charged committed the offence, all the accused persons must be given the benefit of doubt." It is for all the above reasons that we think the conviction of the appellant is not safe. Before we conclude we wish to comment on two aspects that we have noticed in the trial court's judgment. First, the appellant was sentenced to death; but it is not disputed that he was 15 when he committed the offence. This sentence is illegal because under s 26 (2) of the Penal Code: "The sentence of death shall not be pronounced on or recorded against any person who at the time of the commission of the offence was under eighteen years of age; but in view of the sentence of death, the court shall sentence that person to the detained during the President's pleasure, and t , 19 if so sentenced, he shall be liable to be detained in such place and under such conditions are to remain for the time being responsible for legal affairs may direct, and whilst so detained shall be deemed to be in legal custody." (Emphasis added) That was the lawful sentence that should have be

meted out on the appellant, but for the reasons we have endeavoured to set out in this judgment. The second observation is in respect of the applicability of section 175 (1) of the Criminal Procedure Act Cap 20 - RE 2002) which the trial court invoked to forward the record to the High Court for confirmation of the sentence of death. We wish to remind all subordinate courts with extended jurisdiction that Section 175 (1) of the Criminal Procedure Act was repealed by Act No. 32 of 1994. So in terms of S.173 (1) of the Criminal Procedure Act as amended, it is no longer necessary to send the case file for confirmation by the High Court. IAV 20 With those last few remarks we wish to declare that we find that there is merit in this appeal, and that Mr. Rwabuhanga rightly, declined to support the conviction. The appeal is therefore allowed. The conviction is quashed and the sentence is set aside. The appellant is to be released from prison forthwith, unless he is otherwise lawfully held. Order accordingly. DATED at TABORA this 26th day of October, 2009. N.P. KIMARO

JUSTICE OF APPEAL M.S. MBAROUK

JUSTICE OF APPEAL S.A. MASSATI

JUSTICE OF APPEAL TI17 I certify that this is a true copy of the original. I.S. MGI1 IA)

DEPUTY REGISTRAR