Mafuru Malima Kuboja @ Makarawiza vs Republic (Criminal Appeal No. 161 of 2021) [2024] TZCA 1158 (29 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KEREFU, J.A., MWAMPASHI. J.A.. And FELESHI. J.A.^ CRIMINAL APPEAL NO. 161 OF 2021 MAFURU MALIMA KUBOJA @ MAKARAWIZA ................................... APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Tiqgnga, 3.) dated the 20thday of November, 2020 in Criminal Session Case No. 16 of 2019 JUDGMENT OF THE COURT 29h & 29h November, 2024 KEREFU. J.A.: The appellant, Mafuru Malima Kuboja @ Makarawiza was arraigned before the High Court of Tanzania at Mwanza sitting at Musoma for the offence of murder contrary to section 196 of the Penal Code, Cap. 16 (the Penal Code) in Criminal Sessions Case No. 16 of 2019. The information laid by the prosecution alleged that, on 26th December, 2017 at Mahanga Village within Bunda District in Mara Region, the appellant murdered one Mariam Nshashi @ Matobora (the deceased). The appellant pleaded not guilty to the charge. However,

after a full trial, he was found guilty, convicted and handed down the mandatory death sentence. In essence, the substance of the prosecution case as obtained from the record of appeal indicates that, the deceased was living at Nachimwelu Village together with her children. That, the deceased husband passed away in 2015, hence the deceased engaged in love affairs with the appellant who at some point resided in the deceased's house. According to the testimony of Baraka Ndaki (PW2), the deceased grandson, during the Christmas celebration, on 25th December 2017, at night when he was at home sleeping with his grandmother, the appellant went to the deceased house and knocked the door. PW2 opened the door for him and he entered inside the house. It was PW2's testimony that, he managed to identify the appellant through the aid of solar rechargeable light. PW2 stated further that, he knew the appellant prior to the incident as they were living together with him for a longtime in the same house. PW2 went on to state that, having entered the house, the appellant asked for food and the deceased told him that there was no food. PW2 stated that, after that response, he heard the appellant and the deceased quarrelling and the appellant told the deceased that he will

kill her. PW2 said that, he thereafter, went back to sleep, while leaving the two lovers still quarrelling. In the morning, PW2 was woken up by Hamis Nshashi (PW1), the son of the deceased and found her grandmother tied with ropes, dead and the appellant was not there. In his testimony, PW1 supported the narration by PW2 and he specifically, stated that, on 25th December, 2017, they went to the center with his brother for Christmas' celebrations and came back home at 21: 00 hours for dinner. The deceased prepared the said dinner and they ate together with her. Thereafter, PW1 and his brother went to the neighborhood where there was music/disco and they stayed there up to 03:00 hours when they came back home to sleep. PW1 stated further that, in the next morning, i.e 26th December, 2017, at around 06:00 hours, he went to woke up his mother so that they can go to shamba. Surprisingly, he found the door open and upon entering the seating room and called her, no body responded. He stated that he asked PW2 on the whereabouts of the deceased and PW2 informed him about the last night appellant's visit and the conversation he had with the deceased. PW1 stated further that, he went to the deceased room and found her dead. That, inside the room there was a rope which they used to hang some vegetables or cooked meat. The 3

said rope was tied around the deceased's head just below the hairlines but above the ears. PW1 stated further that the said rope was tied on a small pole which could not hold the deceased body. PW1 said that, he informed his brother about the death of their mother and later, the matter was reported to Police. Subsequently, the police officers came to the scene of crime, drew up a sketch map of the scene and took the deceased's body to the hospital where upon examination, it was found that the cause of death was suffocation due to strangulation. The medical report also indicated that, the deceased's body was found hanging on the rope but legs reaching at the ground. That, probably the deceased's body was hanged after the occurrence of the death. The postmortem examination report together with the sketch map of the scene of crime were admitted in evidence as exhibits PI and P2 respectively. PW1 testified that, with the support of people's militia, they searched for the appellant and managed to arrest him on the same day at Nyankomoro Village. It was the further testimony of PW1 that, the appellant had love affairs with the deceased after the death of his father and at some point, he used to quarrel with the deceased and they

chased him from their house but without their knowledge, he came back on the Christmas day and killed their mother. In his defence, the appellant dissociated himself from the accusations levelled against him by raising a defence of alibi. He averred that, on 26th December 2017, he was in lock up at Bunda Police Station after being arrested on 22n d December 2017 for being involved in the preparation of the local brew, commonly known a s 'gongd in river Tirina in Kyandege Village in Bunda District. That, at the Police Station, he was asked to give TZS 200,000.00 for his bail and his wife, one Thabita found the money, but he was not released. It was his defence that he was tortured and later taken to court and charged with murder. He thus denied to know the deceased and or being his lover. At the end of the trial, the learned trial Judge summed up the case to the assessors who sat with him at the trial. In response, the assessors returned a unanimous verdict of guilty against the appellant. In his final verdict, the learned trial Judge agreed with the assessors and found the appellant guilty and convicted him as indicated above. i Dissatisfied, the appellant is now before us challenging the decision of the trial court. It is noteworthy that, on 05th May, 2021, the appellant lodged a memorandum of appeal comprising eight (8) grounds

of appeal. In addition, on 6th January, 2023, he lodged a supplementary memorandum of appeal containing three (3) grounds making a total of eleven (11) grounds of appeal. However, for reasons to be apparent in due course, we shall not reproduce the said grounds herein. When the appeal was called on for hearing, the appellant was represented by Mr. Masoud Mwanaupanga, learned counsel whereas the respondent Republic was represented by Mr. Joseph Mauggo, learned Principal State Attorney assisted by Mr. Deogratious Rumanyika, learned State Attorney. Upon taking the floor and before advancing his arguments in support of the appeal, Mr. Mwanaupanga prayed to abandon the first, third, fourth, fifth and seventh grounds of appeal in the substantive memorandum of appeal and the first and third grounds in the supplementary memorandum of appeal. He then intimated that he would argue the following remaining grounds: first, that, the learned trial judge relied solely on the circumstantial evidence which was not corroborated by arresting or investigation officer; second, the learned trial Judge grossly erred in law and facts to find that the evidence of PW2 which is lacking was corroborated by the evidence of PW1 and

exhibit PI which was also lacking and valueless; and finally, the case against the appellant was not proved beyond reasonable doubt. Mr. Mwanaupanga intimated further that he will argue the said three grounds conjointly and he equally adopted the written submission lodged by the appellant to form part of his oral submission. Submitting in support of the appeal, Mr. Mwanaupanga faulted the learned trial Judge for finding that the charge against the appellant was proved beyond reasonable doubt while the circumstantial evidence which was relied upon did not irresistibly point to the guilt of the appellant in exclusion of any other person. He contended that, during the trial, there was no any prosecution witnesses who testified to have witnessed the appellant attacking the deceased. To clarify on his point, he referred us to the testimony of PW2 and argued that, PW2, apart from testifying that he opened the door for the appellant and that he heard him quarrelling with the deceased, he did not see the appellant attacking the deceased. He added that, since PW2 left the two quarrelling and went to sleep, it is not certain that it was the appellant who killed the decease or someone else could have entered the house and murdered her after the appellant had left or the deceased hanged herself by using the rope which was found around her neck. To substantiate his point, he referred

us to exhibit PI found at page 60 of the record of appeal and argued that, even the doctor who examined the deceased's body, among other things, indicated that the deceased's body was found hanging on the rope but legs reaching at the ground. That, probably the deceased's body was hanged after the occurrence of the death. The learned counsel also wondered as to why the police officers who visited the scene, drew the sketch map of the scene of crime and took away the deceased body from where it was, were not called to testify, for undisclosed reasons, to shed more light on how the body of the deceased was found at the scene, as to whether the deceased hanged herself or she was hanged after being killed. He added that, to make matters worse, even the said rope which was found on the deceased's neck was not tendered before the trial court as an exhibit. To support his proposition, he cited the cases of Aziz Abdallah v. Republic [1991] T.L.R. 71, Hemedi Said v. Mohamed Mbilu [1984] T.L.R. 113 and Boniface Kundakira Tarimo v. Republic, Criminal Appeal No. 351 of 2008 [2011] TZCA 194: [4 October 2011: TanzLII]. Furthermore, Mr. Mwanaupanga faulted the learned trial Judge for finding that the evidence of PW2 was corroborated by the evidence of PW1 and exhibit PI while, the said evidence did not, as well, link the 8

appellant to the killing of the deceased. That, no scientific examination was done to the said rope to establish the latent finger prints and the DNA if they linked the appellant with the murder incident. It was therefore, the strong argument of Mr. Mwanaupanga that, since what was testified by prosecution witnesses had raised serious doubts, the same should be resolved in favour of the appellant. To support his proposition, he referred us to our previous decisions in Stanley Murithi Mwaura v. Republic, Criminal Appeal No. 144 of 2019 [2021] TZCA 688: [22 November 2021: TanzLII], Sikujua Idd v. Republic, Criminal Appeal No. 484 of 2019 [2021] TZCA 427: [27 August 2021: TanzLII] and Jeremiah John v. Republic, Criminal Appeal No. 416 of 2013 [2015] TZCA 293: [19 February 2015: TanzLII]. He then, concluded his submission by reiterating that the circumstantial evidence which was relied upon by the prosecution, in the instant appeal, does not link the appellant to the murder of the deceased. He thus urged us to allow the appeal and set the appellant at liberty. In response, Mr. Mauggo, at the outset, expressed the stance of the respondent Republic of opposing the appeal and intimated that, he would argue the grounds of appeal in the same manner proposed by his learned friend. He submitted that the prosecution successfully

discharged its burden of proving the case of murder against the appellant to the required standard because the circumstantial evidence, which was relied upon, irresistibly point at the appellant as the person who killed the deceased. To clarify on this point, he referred us to the evidence of PW2 and insisted that, the prosecution case was proved beyond reasonable doubt through the evidence of PW2 who was at the scene of crime and who clearly narrated what transpired on that fateful night. That, PW2, testified that, on 25th December, 2017, at night when he was at home sleeping with his grandmother, the appellant knocked the door and PW2 opened the door for him as he knew him, prior to the incident because they were living together with him in the same house for a longtime. That, having entered the house, the appellant asked for food and the deceased told him that there was no food. PW2 stated that, he heard the appellant and the deceased quarrelling and the appellant told the deceased that he will kill her. In the morning, PW2 found her grandmother tied with ropes, dead and the appellant was not there. He thus challenged the argument by Mr. Mwanaupanga that someone else could have entered the house and murdered the deceased and or the deceased hanged herself. He contended that the said assertion is not supported by the record. 10

Mr. Mauggo argued further that the evidence of PW2 was corroborated by the evidence of PW1 who, in the next morning, entered the deceased's room and found her mother dead. It was the further submission of Mr. Mauggo that the evidence of PW2 was also corroborated by exhibit PI where it was certified that the death of the deceased resulted from unnatural cause. That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses. According to Mr. Mauggo, the learned trial Judge properly analyzed the evidence on record and found that the case against the appellant was proved beyond reasonable doubt through the evidence of PW1, PW2, exhibit PI and the appellant's defence of alibi which was an afterthought. To bolster his proposition, he cited the case of Stanley Murithi Mwaura (supra), cited to us by Mr. Mwanaupanga and urged us to dismiss the appeal on account of an unbroken chain of circumstantial evidence which linked the appellant to the death of the deceased. In his brief rejoinder, Mr. Mwanaupanga reiterated his earlier submission and stressed that the prosecution case was not proved to the 11

hilt. He thus, once again, urged us to allow the appeal and set the appellant free. Having carefully considered the grounds of appeal, the submissions made by the learned counsel for the parties and examined the record before us, we think, the burning issue for our determination is whether the chain of circumstantial evidence on record irresistibly conclude that it was the appellant, and nobody else, who killed the deceased. We wish to start by stating that, this being a first appeal, it is in the form of a re-hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and, if warranted, to arrive at its own conclusion of fact. See for instance the cases of D.R. Pandya v. Republic [1957] EA 336 and Reuben Mhangwa & Another v. Republic, Criminal Appeal No. 99 of 2007[2019] TZCA 341: [30 September 2019: TanzLII]. As intimated above, there is no doubt that the prosecution case relied heavily on circumstantial evidence as there was nobody who witnessed the appellant committing the offence. Therefore, in resolving this appeal, we deem it pertinent to initially restate the basic principles governing reliability of circumstantial evidence as discussed in the case 12

of Jimmy Runangaza v. Republic, Criminal Appeal No. 159B of 2017 [2018] TZCA 188: [27 August 2018: TanzLII], when this Court remarked that: '7 /7 order for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilt. (See Simon Musoke v . Republic, [1958] EA 715). Sarkar on Evidence, 15th Ed. 2003 Report Vol. 1 page 63 also emphasized that on cases which reiy on circumstantial evidence, such evidence must satisfy the following three tests which are:

1. the circumstances from which an inference o f guilty is sought to be drawn, must be cogently and firmly established;
2. those circumstances should be o f a definite tendency unerringly pointing towards the guilt o f the accused; and
3. the circumstances taken cumulatively, should form a chain so, complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else" 13

In determining this appeal therefore, we shall be guided by the said principle. It is on record that, the evidence which the learned trial Judge used to convict the appellant is, first, the oral account of PW1 which clearly indicated that the appellant and the deceased were lovers for quite sometimes, after the death of the deceased's husband and, at some point, the appellant lived together with them in the same house, but he was later, chased due to his frequent conflict with the deceased. Second, the oral account of PW2 who testified that, on 25th December, 2017, at night, when they were at home sleeping with his grandmother, the appellant knocked the door and PW2 opened the door for him as he knew him, prior to the incident because, he said, they lived together with him in the same house for a longtime. That, having entered the house, the appellant asked for food and the deceased told him that there was no food. PW2, heard the appellant and the deceased quarrelling and the appellant told the deceased that he will kill her. In the morning, PW2 found her grandmother tied with ropes, dead and the appellant was not there. Third, exhibit PI which indicated that the deceased died unnatural death as the cause of her death was suffocation due to strangulation. Fourth, the circumstances surrounding the case

like the events which occurred before the incident, the appellants conduct before and after the event. It is our considered view, and as rightly found by the trial court that, all these facts provide overwhelming evidence of the appellant's involvement in the commission of the offence. The incriminating circumstances are irresistible inference that the appellant killed the deceased. We thus find the issues of there being the possibility of someone else who entered the house that night and killed the deceased and or the deceased hanged herself and or failure by the prosecution to tender the rope as an exhibit and DNA or collection of latent fingerprints on the same to be an afterthought as, during the trial, the appellant did not cross examine PW1 and PW2 on those issues and or other issues related with his love relationship with the deceased and that he had lived together with them for a long time in the same house. It is trite law that, a party who fails to cross examine a witness on a certain matter is deemed to have accepted the same and will be estopped from asking the court to disbelieve what the witness said, as the silence is tantamount to accepting its truth. See our previous decisions in Cyprian Athanas Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992 and Hassan Mohamed Ngoya v. Republic, Criminal

Appeal No. 134 of 2012 (both unreported). We are therefore in agreement with the learned Principal State Attorney that, since the appellant did not utilize that opportunity during the trial, raising those issues at this stage of an appeal, is nothing but an afterthought. On the failure by the prosecution to summon the police officer (s) who arrested the appellant and or investigated on the matter, we wish to state that, the burden of proof in criminal cases lies on the prosecution shoulders and the standard is proof beyond reasonable doubt. Therefore, the prosecution is at liberty to bring only those witnesses who could advance their case regardless of the number - see section 143 of the Evidence Act, Cap 6 of the Revise Laws. What is required is the quality of evidence and the credibility of the witnesses. This position has been emphasized in several decisions of this Court. See for instance, the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148, Hassan Juma Kanenyera v. Republic [1992] T.L.R. 100 and Mwita Kigumbe Mwita & Another v. Republic, Criminal Appeal No. 63 of 2015 (unreported). In the instant appeal, however, the reason for failure to summon the police officer who arrested the appellant was well stated by PW1 at page 24 of the record of appeal that, the appellant was

arrested by people's militia and not by the police officers. That said, we find the first, second and third grounds of appeal devoid of merit. Consequently, and looking at the totality of the evidence, we entertain no doubt that with the available circumstances, the learned trial Judge properly held that the case against the appellant was proved beyond reasonable doubt. For the foregoing reasons, we find the appeal devoid of merit and it is hereby dismissed in its entirety. DATED at MWANZA this 28th day of November, 2024. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 29th day of November, 2024 in the presence of the appellant in person who also represented by Mr. Masoud Mwanaupanga, learned counsel for the appellant and Mr. Sileo Mazullah and Mr. Ibrahim Salim, both learned State Attorneys for the Respondent/Republic, is hereby certified as a true cop^^f the original. '— = = s^ ---------------------- J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 17