Meshack Saguda @ Kumbatia vs Republic (Criminal Appeal No 255 of 2023) [2026] TZCA 204 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA. J.A.. MAIGE. J.A. And MANSOOR. J.A.1 CRIMINAL APPEAL NO 255 OF 2023 MESHACK SAGUDA @ KUMBATIA ............................................... APPELLANT VERSUS THE REPUBLIC.........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Matuma. J.) dated the 21st day of October, 2022 in Criminal Session Case No. 29 of 2020 JUDGMENT OF THE COURT 12th February & 2n d March, 2026 LILA. J.A.: The appellant, Meshack Saguda @ Kumbatia, was charged before the High Court sitting at Shinyanga (the trial court) with murder under sections 196 and 197 of the Penal Code (Cap. 16 R.E. 2002). He was accused of murdering Agness Charles (the deceased) on 2/2/2019 at Gitoya in Bariadi District, Simiyu Region. The deceased was his wife. Upon his conviction, he was sentenced to suffer death. At the trial, the appellant denied being involved. The prosecution's case depended largely on the evidence of five witnesses namely Masanja Kengele (PW1), Mabula Kitulaburugu Malongo (PW2), H. 6552 DC Hassan (PW3), Rahel Cheyo (PW4) and A/Insp. Vadastus (PW5). Neither of these witnesses eye-witnessed the appellant killing the deceased. The evidence relied on was purely circumstantial, the substance of which was simple and easy to grasp. That, in the morning of the material date, the appellant sent one Masungwa Gilya to PW1, to inform him that his wife had committed suicide. PW1 was then a member of the Hamlet Council. The appellant also informed PW4, his mother in-law, on the incident Masungwa Gilya and PW1 went to the appellant's house and found the deceased's body hanging on a tree which was just three to four paces from the appellant's house. Upon PW1 inquiring the appellant on the cause of that, the appellant told him that he had quarreled with the deceased the previous night and the deceased left to her parents. Suspicious of how the deceased would commit suicide while her legs were standing normal on the ground instead of having gone to her parents as alleged by the appellant, PW1 informed the Hamlet Executive Officer (PW2) who, also not convinced that the deceased committed suicide, informed the police leading to the appellant's arrest by PW3 after visiting the crime scene as the signs at the scene did not suggest the deceased having committed suicide. PW3 recorded the appellant's statement in which he denied killing the 2 deceased. PW5 was assigned to go to Somanda Hospital for supervising the autopsy of the deceased body which was being conducted by the doctor. The attempt by the prosecution, during preliminary hearing, to tender the autopsy report (Post Mortem Report, the PMR) as evidence on the cause of death, met a snag as it was objected to and its tendering was deferred to be done during the trial. Unfortunately, the doctor who conducted the autopsy was not called to testify and the PMR was therefore not tendered. In all, the prosecution sought to establish that the deceased was murdered by the appellant and that the circumstances did not support the appellant's contention that the deceased committed suicide. Consistent with his previous stand point to PW1 on the cause of the deceased's death, the appellant, in his defence, maintained that the deceased committed suicide. He attributed the incident with the deceased, who was his elder wife, being unhappy with his decision to marry another but young wife, Ester Masanja. That, for some time, she stayed unhappy. That, on the fateful night, he slept in the young wife's house and in the morning, he went to greet the elder wife (the deceased) but was amiss only to learn, afterwards, she had hanged herself by a sisal rope on the tree. That defence evidence 3 notwithstanding, the trial Judge went ahead to convict and sentence the appellant as stated earlier. On appeal to the Court, the appellant initially fronted seven grounds of complaints which was subsequently followed by two memoranda of appeal, a one-point supplementary memorandum of appeal and another one comprising four grounds of appeal faulting both conviction and sentence by the trial court. Before the Court for the hearing of the appeal, Mr. Augustino Ijani and Mr. Geni Vitus Dudu, both learned advocates, joined forces to represent the appellant. Equally, for the respondent Republic, Ms. Sophia Fidelis Mgassa and Ms. Nancy Medard Mushumbusi, both learned Senior State Attorneys, appeared. Mr. Dudu was first to address the Court laying a foundation that, the appellant had instructed them to abandon all the grounds of appeal he had lodged earlier on and that they shall only argue grounds two (2) and three (3) of the appeal in the supplementary memorandum of appeal. Both grounds substantially challenged the appellant's conviction on account of the cause of death of the deceased, the subject of the charge against the appellant, being uncertain. The two grounds are couched thus: "2. That, the trial Judge erred in law and fact when he failed to take inference in favour of the accused after the prosecution opted to drop (not to use) the material witness (Medical Doctor involved to prepare a post mortem report) as prosecution witness. 3. That, the appellant's conviction was erroneously based on circumstantial evidence." Thereafter, Mr. Ijani took the floor to argue on the two grounds conjointly. He contended that the appellant's conviction was based on the circumstantial evidence which did not point at the appellant as the guilt person due to the contradiction apparent on the record o appeal. While referring to the testimonies of PW1 and PW2, he submitted that, the two witnesses did not believe in the deceased having committed suicide but were convinced that she was strangled relying on the testimony of PW5 who took the statement of one Masunga Gilya (exhibit P2) who told him that he heard cries coming from the appellant's house showing that someone was being beaten but he did not witness the appellant beating the deceased. Mr. Ijani forcefully argued that, there was uncertainty as to the cause of death as between being strangled or committing suicide as was alleged by the appellant 5 and that the only scientific evidence to resolve it was a PMR which was, unfortunately, not produced in court during trial. According to him, the autopsy report by the doctor could be produced in court as was said by PW5 who witnessed the examination of the deceased body by the doctor but the PMR was not tendered and admitted in court to establish the cause of death. He held the view that, by such omission, it was evident that, the prosecution did not believe in the medical report being in their favour that is why they did not produce it. The doubt on the cause of death of the deceased should benefit the appellant, he asserted. In response, Ms. Mushumbusi supported the appellant's appeal. Briefly and concisely, she submitted that the appellant was wrongly caught in the web of the doctrine of last person to be seen with the deceased. That, the trial court found him to have failed to offer a plausible explanation on the death of the deceased. That apart, she argued, the cause of the deceased's death is uncertain. Due to such failure to establish or prove cause of death and in the absence of an eye witness evidence, the prosecution evidence fell far short of establishing that it was the appellant who murdered the deceased. It is evident that the evidence on the record of appeal, in very certain terms, presented nothing but a divergent view on the cause of 6 the deceased's death between the prosecution side which sought to, circumstantially, establish that she was strangled by the appellant while the appellant claimed that she committed suicide by hanging herself on a tree using a sisal rope. In his deliberation, the learned trial judge, at page 111 and 112 of the record of appeal, analyzed the evidence and reached at a conclusion that, the appellant was responsible. He said that: "In the instance matter the parties are not in an agreement that the deceased committed suicide. The prosecution argues that the deceased was murdered and the alleged suicide was a created scene to blindfold the general public. Their indicators that deceased did not commit suicide were; that the deceased was found not hanging on the tree because her legs were touching the ground, she was found dosing her eyes as if a person sleeping, she was found her mouth dosed normal, she was found the alleged khanga rounded the neck from behind while the throat is free without having been touched by that kanga in the meaning that there was obstruction o f the air in the trachea, there was no any signs if struggle by her to serve her life which is always the case to persons committing suicide, her tongue was not out, she had not urinated or excreted and that even the duster (fundo) o f the khanga was not in the neck as it would be expected but it was on the chin. I agree with these observations by the prosecutions witness that they are strong circumstantial evidence that the decease did not meet her death by committing suicide. She was taken there after having been murdered somewhere. Even the accused cannot say with certainty that the deceased committed suicide because he did not claim to have witnesses the crime. He materially corroborated the prosecutions' evidence on the indicators to a person who has committed suicide." Apparently, the learned trial judge appeared to have believed the prosecution witnesses and disbelieved the appellant without assigning reasons for, it is trite law that every witness deserves credence unless proved otherwise by cogent evidence (See Goodluck Kyando vs Republic, (2006) TLR 363) and that an accused person is also a witness when he testifies hence deserves to be believed too [See Albanus Aloyce and Another, Criminal Appeal No. 283 of 2015 cited 8 in Thomas Petro vs Republic, Criminal Appeal No. 303 of 2023 (both unreported)]. We may interpose here and remark that, what the learned trial Judge did in his evaluation and analysis of the evidence was a misdirection. In administering justice, it was not a question of choosing to believe one side as against the other. It was a question and legal duty of the prosecution proving beyond reasonable doubt that the appellant actually caused the death of the deceased. It is crystal clear, in the judgment of the trial court, that the learned trial Judge was well aware that there was no witness to the incident and the prosecution relied on circumstantial evidence only to establish the appellant's liability which, in law, such evidence has to be water tight and should irresistibly point at the appellant as the guilt person and not otherwise. It does not appear, in our strong view, and here we agree with the concurrent view taken by the learned counsel for both sides, that the prosecution evidence met that threshold. Much as we are alive that death and its cause can be proved by oral evidence where there are eye-witnesses to the killing incident or circumstantially, in instances like the present one, absence of an explanation on theactual cause of death and it being linked with the appellant, negated any assumption that the appellant was responsible with it. In other unexplained deaths or circumstances, a scientific proof is essential. On the significance of a scientific proof of death, in our earlier decision in Halfan Ismail @ Mtepela vs Republic (Criminal Appeal 38 of 2019) [2020] TZCA 195 (11 March 2020), the Court quashed a murder conviction because the evidence was not sufficient as the Post Mortem Report was not tendered. Also, in Halfan Ismail @ Mtepela vs Republic (Criminal Appeal 38 of 2019) [2020] TZCA 195 (11 March 2020), the Court underscored the position that medical proof is key for establishing cause of death when it is not clear. These authorities apply in equal force in the instant case given the similarity of the facts that the doctor who conducted the post-mortem was neither called to testify nor was the post-mortem report tendered in evidence. Absence or omission to tender the PMR, definitely, adversely affected the prosecution case. We, in the end, share views with both learned counsel that the deceased's cause of death was not established hence there was nothing linking the appellant with the murder of the deceased. 10 In the event, we allow the appeal, quash the appellant's conviction and the sentence set aside. We hereby order, if not held for another cause, his immediate released from prison. DATED at SHINYANGA this 2n d day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 2n d day of March, 2026 in the presence of appellant in person, Mr. Augustino Ijani, learned counsel for the Appellant and Ms. Mboneke Ndimubenya, learned Senior State Attorney for the respondent/Republic via virtual Court, and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL li