IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MKUYE. 3.A.. KAIRO. 3.A. And MDEMU. 3.A.^ CRIMINAL APPEAL NO. 199 OF 2023 BARAKA JEREMIA @ ISAN3A..................................................APPELLANT VERSUS THE REPUBLIC....................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Philip, 3 .^ dated the 28thday of November, 2022 in Criminal Sessions Case No. 25 of 2021 JUDGMENT OF THE COURT 21st July & 6th August, 2025 MKUYE, 3.A.: The appellant, Baraka Jeremia @ Isanja, was found guilty as charged of the offence of murder of one Hawa Baraka Isanja contrary to section 196 of the Penal Code Cap 16 which occurred on 24/9/2017 at Sing'isi area, within Arumeru District in Arusha Region. In order to prove the case, the prosecution marshalled three witnesses and produced one exhibit while on the defence side, the appellant was the only witness. The brief facts of the case go thus: i

The appellant and the deceased were husband and wife. The appellant was a motorcycle rider. They resided at Sing'isi area within Arumeru District in Arusha Region. It is not clear from the record as to what happened but sometimes on 24/9/2019 morning, the appellant went to his neighbours' houses (Samwel Jeremiah and Richard Jeremiah) to seek an assistance so that to take his wife to the hospital as she was seriously sick. Richard Jeremiah and Samwel Yeremiah responded to his request. They together went to the appellant's house and found the deceased laying on the ground unconsciously with fresh injuries on her head and face while her right eye was swollen. Sometimes on 25/9/2019, ACP Daud Mapunda (PW3) received a tip off from an informer that the appellant had assaulted his wife and that he was making efforts to hide the truth of the matter as he did not report the matter to the police. As they were discussing on how to go about it, the appellant and deceased's relatives arrived at their office at USA River Police Station to report and he was arrested by Gabriel Ephrahim, a retired police officer at that station (PW2) under instructions from PW3. Unfortunately, the deceased died at Tengeru Hospital where she was taken for treatment. The body of the deceased was taken from

Tengeru Hospital to Mount Meru Hospital under the supervision of PW2. The post mortem examination was conducted by Dr. Abel Ndago (PW1) and it was revealed that deceased's death was due to respiratory arrest from cervical spine injury and severe head injury leading to lack of oxygen. The postmortem examination report was admitted as Exh. PI. PW3, being an investigator visited the appellant's house and found it clean, with no signs of blood or struggle which he interpreted as being an attempt to conceal evidence. In defence, appellant denied involvement. He testified that on 23/9/2017, the deceased went to visit her sister Fatuma Juma in Sanawari and was not reachable by phone that night. In the morning, he found her injured outside their house after being brought by unknown person by a motorcycle. He denied to have inflicted injuries to her claiming that he took her to Tengeru Hospital then he went to USA River Police Station to report the incident and obtain the PF3 but he ended up being arrested. After a full trial, the trial court found that the prosecution was able to prove the case against the appellant beyond reasonable doubt. He was found guilty, convicted and sentenced to death by hanging.

Aggrieved with the conviction and sentence, the appellant has appealed to this Court on five grounds of appeal which, for a reason to become apparent shortly, we will not reproduce them. When the appeal was called on for hearing, Mr. Richard Manyota, learned advocate appeared representing the appellant whereas the respondent Republic had the services of Mses. Naomi Moiiel, Eunice Makala and Blandina Msawa, all learned Senior State Attorneys. At the outset, Ms. Mollel declared their stance that they were supporting the appeal on the ground that the prosecution case was not proved to the required standard. She contended that, the decision of the High Court as shown at page 108 of the record of appeal based on circumstantial evidence as one, the appellant failed to report the incident to the police station promptly; two, his house was cleaned by either himself or other people which raised doubt; and three, the appellant failed to report the disappearance of his wife in time. She elaborated that, in order for the circumstantial evidence to be relied upon it must irresistibly point out to the guilty of the appellant but in this case the so called circumstantial evidence is a mere suspicion. With regard to late reporting by appellant, she argued that, PW3 at page 59 of the record of appeal testified how on 25/9/2019 morning

was informed by an informer that the appellant had injured his wife and was taking her to the hospital. He said, as they were discussing on what to do, they saw him (appellant) at the police station. So, it cannot be said that he was late to report the incident. The learned Senior State Attorney wondered why such an important informer did not testify in court to clear out the dust. In relation to the cleanness of the appellant's house, Ms. Moilel argued that, there was no witness who testified that he/she saw the appellant or his relatives cleaning the house so as to hide something more so when taking into account that the appellant testified that he left Absalom Charles and Richard Jeremiah at his house. She added that, as the said Charles Absalom and Richard Jeremiah were listed during committal proceedings, they ought to have been called to testify in court. She concluded that the appellant was convicted on mere suspicion but it is cardinal law that suspicion however strong cannot amount to a conviction. In this regard, she contended that, the case against the appellant was not proved beyond reasonable doubt and she implored upon us to find the appeal meritorious, allow it, quash the conviction, set aside the sentence and order for the immediate released of the appellant.

On his part, Mr. Manyota welcomed the respondent concession to the appeal and concurred entirely with Ms. Mollel's line of argument. He stressed that the appellant was convicted on suspicion and he therefore, prayed that the appeal be allowed, the conviction be quashed and the sentence be set aside and the appellant be released forthwith from custodial sentence since the case was not proved beyond reasonable doubt. Having examined the grounds of appeal and the concurrent submissions from both sides, we think, the main issue for our consideration is whether the case against the appellant was proved beyond reasonable doubt. It is common ground that the appellant's conviction based on circumstantial evidence as there was no witness who witnessed when the offence was committed. In order for the circumstantial evidence to be relied upon to ground a conviction, there are guiding principles which are to be met. In the case of Manoja Masalu and Another v. Republic, [2024] TZCA 409 TANZLII, the Court while relying on the case of Kipllecering Arab Koske v. Rex [1949] EACA 135 observed that:- 6

" . . . in order to justify the inference of guilty, on circumstantial evidence, the inculpatory facts must be incompatible with the innocence o f the accused, and incapable o f explanation upon any reasonable hypothesis other than that o f guilty." Also, in the case of Republic v. Kerstin Cameron [2003] TLR 84, the Court propounded the guiding principles as follows:- (i) The evidence must be incapable o f more than one interpretation. (ii) The fact from which an inference o f guilt or adverse to the accused is sought to be drawn, must be proved beyond reasonable doubt and must be connected with the facts from which the inference is to be drawn or inferred." As was stated by both counsel, the evidence that led to the appellant's conviction was that one, the appellant rushed the deceased to the hospital without first reporting the incident to the police and obtain the PF3; and two, that his house was found to be unusually clean suggesting the appellant was hiding/concealing evidence. However, we agree with Ms. Mollers line of argument which was conceded by Mr. Manyota that, such evidence alone cannot amount to circumstantial evidence under the law. We have examined the evidence

that was relied upon to amount a conviction against the appellant. The evidence that the appellant took the deceased straight to the hospital before reporting to the police and for that matter obtain a PF3, in our view, does not irresistibly point out that he had an ill motive. This is so because of the evidence of PW3 at page 59 of the record of appeal showing that, after receiving the information from the informer about Baraka Jeremiah (appellant) having assaulted his wife and taken her to Tengeru Hospital with all signs of hiding the truth or that he wanted to hide the truth as he did not obtain the PF3 from the police station. While they were discussing on how to go about it, the appellant and deceased's relatives arrived at their office to report and they arrested him immediately. So, there was no signs that the appellant wanted to hide something as according to him, he had to deal with deceased's condition first. Incidentally, the evidence that the appellant wanted to hide something came from PW3 who was just informed by the informer. We think, had the so-called informer testified in court he/she would have unveiled to the court how the appellant was hiding the truth of the matter. But that was not done. The other piece of evidence which was found to be circumstantial was that his house was found to be clean with no drops of blood or any sign that there was something unusual or forces used in that house.

According to PW3, this was considered to have been cleaned so as to clear anything which could connect the appellant with assaulting his wife. However, we think that this evidence, equally, does not qualify to be circumstantial evidence in the absence of the evidence of how dean the house was before and after the incident. Incidentally, in his evidence, the appellant clearly stated that he left Richard Jeremiah and Absalom at his house when he took his wife to the hospital but they were not called to testify in court although during the committal proceedings (page 34) Absolom Charles and Richard Jeremiah were listed as among the intended witnesses for the prosecution. During preliminary hearing Absalom Charles was also listed as among the intended witnesses for prosecution. However, for unknown reason the said intended witnesses were not called to testify in court. In our view, had they testified in court perhaps they would have explained about the cleanness of the appellant's house and who would have cleaned it and for what purpose. In the absence of such evidence, the evidence of cleanness of appellant's house for hiding something remains a mere suspicion. 9

It is cardinal law that suspicion however strong cannot be the basis of conviction. There is unbroken chain of our decisions in which we have pronounced ourselves so. Just to mention a few, Juma Malaya and 2 Others v Republic, [2010] TZCA, Mwita Marwa Abdallah v. Republic, [2023] TZCA 17349, Manoja Masalu and Another v. (supra), Adinardi Iddy Salim and Another v. Republic, [2022] TZCA 9 and Elia John v. Republic, [2019] TZCA 303 (All TANZLII). For instance, in Mwita Marwa Abdallah (supra), we clearly stated that:- "If anything, such evidence was but, founded on suspicion. It is trite that suspicions alone however strong, is not sufficient to sustain conviction in criminal trial." Thus, the appellant in this case was convicted on the basis of mere suspicion that he did not report the incident to the police promptly and that his house was found to be clean connoting that he was hiding something. Since such evidence did not eliminate any other possibilities as to such state of affairs it did not qualify to be circumstantial evidence as was stated in the case of Kerstin Cameron (supra) to warrant a conviction. As we stated earlier on, suspicion however strong, cannot be sufficient to mount a conviction. 10

This being the case, we find that the case against the appellant was not proved to the hilt. We therefore allow the appeal, quash the conviction, set aside the sentence and order for an immediate release of the appellant unless otherwise held for some other lawful reasons. DATED at ARUSHA this 5th day of August, 2025. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 6th day of August, 2025 in the presence of Mr. Richard Manyota, learned Counsel for the Appellant and Mr. Philbert Msuya, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. .-Y ^ Y i:,

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