Anthony Magehema and 2 Others vs Republic (Criminal Appeal No. 517 of 2021) [2024] TZCA 1166 (25 November 2024)

THE COURT OF APPEAL OF TANZANIA ATIRINGA (CORAM: MKUYE,J. A.. MGEYEKWA, 3, A, And NGWEMBE. J.A.) CRIMINAL APPEAL NO. 517 OF 2021 ANTHONY MAGEHEMA ..... . ....... . ....... . .................... . 1 st APPELLANT TITHO NZOTA . ....... . .............. . ....... . ....... . ....... . ................. . 2N p APPELLANT EMMANUEL MAYEMBA . .............. . .............. . ...... . 3 rd APPELLANT VERSUS THE REPUBLIC ...... . ...... .......... . ................ . .......................... . RESPONDENT [Appeal from the decision of the High Court of Tanzania at Iringa] fMlvambina, 3.1 dated 21st day of October, 2021 in Criminal Session No. 53 of 2017 JUP-SMENT OF THE COURT 250 1 November, & 2n d December, 2024 NGWEMBE. 3.A.: The three appellants were charged jointly with two others before the High Court of Tanzania sitting at Iringa for the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E 2002, [Now R. E. 2022]. The charge laid before the trial court stated that, the appellants being the 3rd , 4th and 5th accused persons jointly with Evodia Mtweve and

Yolanda Mchilo, 1s t and 2n d accused persons respectively, on 28th March 2016 at Igominyi village within the District and Region of Njombe, jointly murdered one Hilda d/o Kinanilo. Upon arraignment and the charge being read to them, all pleaded not guilty, hence the prosecution paraded five (5) witnesses and three (3) exhibits to establish and prove the case against them. However, at the end, the trial court found the 1st and 2n d accused persons not guilty, while the 3r d , 4th and 5th accused persons (the appellants) were found guilty to the murder of the deceased. The appellants were dissatisfied with the judgment, hence lodged the instant appeal to the Court in attempt to overturn their convictions and sentences. Briefly, the event commenced from abnormal conditions of students at Igominyi Secondary School. The villagers associated that condition and sufferings of students with witchcraft. In what is said to be a special prayer for the issue, the followers of certain faith and being indoctrinated with strange ideology, they associated what was happening to the students at Igominyi Secondary School with bewitching. Out of those prayers, they alleged to have received what they trusted that it was a revelation from supernatural powers that Angelus Mayemba the (victim) and his wife Hilda d/o Kinanilo (the deceased), were the authors of the suffering having

bewitched those students at the school. Some community members stirred up the society to believe the alleged revelation and took action against the two suspects of witchcraft. The beginning of ordeal commenced at the midnight of 28th March, 2016 whereby some unidentified people invaded the home of the victims sprinkling gasoline on their house and a motor vehicle which had parked outside, with purpose to set them all ablaze. The victims wailing and seeking for rescue made other neighbours to respond, which dispersed the perpetrators away and aborted their evil intent. Tireless as they were, the perpetrators gained momentum and in the day time of the same date, they proceeded with their intent, a group of people, some having gasoline in their plastic bottles chased the victims while attacking them by bricks. In the cause the victims parted ways in running for the rescue of their life. Some amounts of petrol fuel were poured into the jacket of Angel us Mayemba, one of the perpetrators lit him with a match box, but he managed to remove the burning jacket from his body. Soon thereafter the assailants pursued his wife, Hilda Kinanilo. They poured enough petrol fuel into her body and light the match box. She was burnt on many parts of her body. The Village Executive Officer (VEO) together with others were able to

extinguish the fire and rescued her. Khadija Kilian Msangi (PW3) a nurse at Igominyi Dispensary provided first aid to the deceased after being requested by Twilumba Salingo, a Village Chairperson. In response to the request, she took blanket, gloves and stretcher for the deceased. However, in the process of providing that first aid, she was chased away by a group of perpetrators and she ran away leaving the deceased at the crime scene. At last, she was rescued and taken to Kibena Hospital, but on the same date of 28th March, 2016, she passed away due to hypovolemia and hypothermia which was the direct effect of the burns she sustained in her body. However, before death, the deceased recorded her statement best known as dying declaration. She mentioned the perpetrators of her injuries. The postmortem examination was conducted and its report was tendered during trial. At trial, Dr. Issaya Mvinge testified as PW1, that he conducted post mortem examination of the deceased body and found that the source of death was due to hypovolemia and hypothermia which meant dehydration, secondary to extensive burn. The report was admitted as exhibit PI. Bosco John Mwenda (VEO), testified as PW2 and was an eye witness of the

ordeal who at the beginning participated in resolving the fight between Titho Nzota and John Mayemba. Later, he alleged to have rescued the deceased and mentioned eight (8) assailants at page 62 of the record of appeal. The surviving victim Angelus John Mayemba (PW4) narrated the whole incidence and he mentioned names of perpetrators. The police investigator number I E. 8205 D/SGT Peter was the fifth prosecution witness (PW5) who drew the sketch map of the crime scene exhibit P2 and recorded the dying declaration of the deceased which was tendered as an exhibit P3. At the conclusion of the prosecution case, the trial court found all five accused persons had a case to answer, thus the first and second accused, not party to this appeal had a defence of alibi\ that on the date of incident they were at their farm away from the crime scene from 08:00 hours to around 18:00 hours. Their defence had secured support from the prosecution evidence, while the first appellant defended that he is not a resident of Igominyi, the charge against him was not true and he was not at the scene. The second appellant's defence was to the effect that, he resided in Igominyi working as a mercantile (Machinga) for gain. On 28th

March, 2016 he had a plan of going to Njombe township to purchase the ornaments materials for his business, when he encountered the commotion and fighting at the scene. He resolved those who were fighting and he was the one who reported the incidence to the VEO before he proceeded to Njombe from where he returned around 17:00 hours and heard that people had burnt the deceased who was at hospital. He was arrested later in his ordinary business, not being told the accusations against him. But he was not involved in the murder and he does not know anything about it. The third appellant denied the offence that he was not involved in the murder. He further maintained that he was not mentioned by the deceased, while attacking the prosecution evidence against him. Despite the defence case, the trial court found the appellants guilty of murder but the 1st and 2n d accused persons were acquitted. Being dissatisfied with their conviction and sentence, they preferred the instant appeal jointly raising six grounds of appeal. Then later on 30th July, 2024 they also filed nine (9) supplementary grounds of appeal constituting a total of fifteen (15) grounds. Equally, on 22n d November, 2024, the 2n d and 3r d appellants jointly lodged another supplementary memorandum of appeal comprising two grounds, in total they had seventeen (17)

grievances. However, for a reason to be disclosed in the course, we do not intent to reproduce them hereunder. At the hearing date, Mr. Jally Willy Mongo, teamed up with Mr. Jassey Samuel Mwamgiga, and Mr. Lazaro Joseph Hukumu, all learned advocates entered appearance for the 1s t 2n d and 3r d appellants respectively, while the respondent Republic was represented by another team of State Attorneys, led by Mr. Shaban Mwegole learned Principal State Attorney and Mr. Yahya Misango, learned Senior State Attorney. At the outset, when the Court invited Mr. Mongo to address the Court, he summarized all grounds of appeal into one ground to wit: the prosecution failed to prove the case beyond reasonable doubt against the 1st appellant contrary to section 3 (2) (a) o f the Evidence Act. The counsel for the 2n d appellant likewise abandoned all grounds of appeal and proceeded to argue only the two grounds lodged on 22n d November, 2024 to wit: one, failure o f the trial court to sum up the case to the assessors on vital points o f law and failure to explain their roiesr, and two, the prosecution did not prove the offence o f murder beyond reasonable doubt

The third appellant's advocate argued only on failure of the prosecution to prove the case to the standard required by law. Having summarized the grounds of appeal as alluded to above, M r. Mongo pointed out the basic duties of the prosecution in criminal trial like the instant appeal that they should establish and prove the offence of murder against the appellants. To him, that duty was abdicated by the prosecution during trial. He argued that the crucial evidence in the circumstances of mob justice was the dying declaration recorded by the deceased, which was properly committed during committal proceedings and properly read as appears in pages 34 and 37 of the record of appeal. He added that, failure of the trial court to consider the contents of the dying declaration amounted into misapprehension of evidence. Thus, he implored the Court, as the first appellate court, to invoke rule 36 of the Tanzania Court of Appeal Rules, 2009 to consider the evidence of dying declaration afresh. He challenged further the evidence of PW2 who at one time mentioned eight (8) assailants of murder to the deceased, where the name of the 1s t appellant was not among the eight suspects. Moreover, PW2 at page 64

denied to have seen the 1st appellant at the scene of crime. Therefore, M r. Mongo, forcefully argued that, even in the dying declaration the name of the 1s t appellant was not mentioned (page 40), M r. Mongo proceeded to attack the testimony of PW5 that at page 85 of the record of appeal, the 1s t appellant was not among the suspects and that there were serious contradictions between the evidence of PW2 and PW5 which contradictions went to the root of the matter. He bolstered his argument with a case of The Director of Public Prosecutions v. Juma Chuwa Abdallah & Another (Criminal Appeal No. 85 of 2018) [2023] TZCA 17800 (2 November 2023) where the Court held that the evidence which reveal serious contradictions of evidence, the court should not rely on it. He thus, implored the Court to find the case against the Ist appellant was not proved to the standard required by law. In support to the submission by the 1 st appellant's counsel, M r. Mwamgiga, counsel for the 2n d appellant argued strongly that the summing up to assessors contradicted the mandatory of section 298 of the Criminal Procedure Act (CPA), that the trial judge failed to sum up to wise assessors on vital points of law as appears in page 157. That, the defence of alibi was

raised as appears in page 131, but was not among the legal points summed up to assessors. He further submitted on the dying declaration that, those who were mentioned by the deceased, the 2n d appellant was not among the suspects. He buttressed his argument by referring the Court to the case of Batram Nkwera @ Mhesa v. The Director of Public Prosecutions (Criminal Appeal No. 567 of 2019) [2022] TZCA 139 (24 March 2022). Arguing on the admissibility of dying declaration, Mr. Mwamgiga supported the submission of his learned brother Mr. Mongo, that during committal proceedings, the dying declaration was read over and was properly committed as per page 37 of the record of appeal. He concluded that the trial judge mistakenly disregarded such an important document, which bring contradictions to the whole prosecution evidence. He insisted that, the testimonies of PW2, PW4 and PW5 are contradicting to each other which should not be relied upon. On failure to call material witness like the village chairperson, he contended that it weakened the prosecution case. He, thus, rested his case

by urging the Court to find the 2n d appellant did not participate in burning the deceased to death. M r. Hukurnu, adopted the submission of Mr. Mwamgiga in respect to the 1s t ground related to failure of the trial court to sum up properly to the wise assessors. Also on the 2n d ground, Mr. Hukumu, briefly reiterated to the basic principle of law that the duty of the prosecution in criminal trials is to prove the offence beyond reasonable doubt. In the contrary, the [earned counsel insisted that the prosecution faulted the principle by failure to prove the offence against the 3r d appellant. He equally insisted that the dying declaration did not mention the name of the 3r d appellant which proved that the 3r d appellant was not among the assailants. He thus, implored the Court to find that the dying declaration of the deceased was superior over other witnesses because at the time of her recording she was sober. Considering the rival arguments of the learned advocates for the appellants, Mr. Mwegole found serious pit holes in the prosecution case which were not filled in with relevant prosecution evidences. He therefore, supported the appeal on the fact that the case against the appellants was

not proved beyond reasonable doubt. He pointed the apparent contradictions of evidence that, at page 157 indicated the deceased died brutally by fire, but the fundamental unanswered question is who set that fire to the deceased body. At page 138 and 139 of the record of appeal, the dying declaration of the deceased which was properly read during committal proceedings did not mention the names of the appellants as appears in pages 34 to 37 of the record of appeal. He also conceded to the contradictions in the prosecution evidence, thus, he submitted that, the nature of the offence attracts serious punishment therefore the corresponding evidence must be clear, direct and credible, leaving no reasonable doubt. In the contrary, the prosecution case left many doubts which goes to the root of the case itself. Mr. Mwegole argued further that, there was no clear evidence on who saw the lighting of the match box to the deceased body. Such identification must be clear and direct. He argued that, the center of dispute in this appeal is on proper identification of the perpetrators in a mob of many people. PW4 being among the victim, explained the ordeal but he failed to identify who set fire to the deceased.

Responding on failure to call material witness, M r. Mwegole conceded that the village chairperson was a material witness, thus failure to call her was fatal. In summary he conceded that the prosecution case was not proved to the standard required by law. Having heard the concurrent submissions of learned counsels on the grounds of appeal, it is plain to us that the determination of the appeal turns on whether the prosecution proved the offence of murder against the appellants beyond reasonable doubt. Despite the above main ground, there are several other issues to be considered, including the consideration of the contents of the dying declaration recorded by the deceased prior to her demise; proper identification of the culprits in an angry moving mob of people; and on contradictions of prosecution evidence. Considering the reasoning of the learned trial judge at page 158 of the record of appeal, he discussed the dying declaration as we reproduce hereunder: "The only evidence which was trying to incriminate the first and second accused was the dying declaration presented by PW5 but the same fail short, due to the following reasons; there was no

prior notice by the prosecution side nor was it mentioned and read over during committal proceedings as per section 289 (1) o f the CPA ." Based on that reasoning the learned trial judge equated the contents of dying declaration into hearsay evidence which is not admissible in law. However, we have inquisitively perused the record of appeal, we tend to agree with the concurrent observations of the learned counsel that during committal proceedings as appears in pages 36 and 37 of the record of appeal, it is vividly seen that the prosecution disclosed nine (9) intended witnesses and four (4) exhibits including the dying declaration of Hilda Kinanilo. The trial court could not have admitted and considered the contents of the sketch map of the scene of crime and post mortem examination report, but reject the dying declaration, while all exhibits were itemized and read during committal proceedings. We therefore, find that the trial court misdirected itself to reject the dying declaration of the deceased which was material evidence in determination of the trial case. We now intend to discuss the contents of the dying declaration of the deceased. Its contents dearly indicates that the deceased invited the whole village to arrest those who burnt her. According to the deceased, the

suspects who burnt her were Gaitan, Tiemu, Timo, Shedi, Evodia Tweve, Yolanda Mchiio, Yaneth Danda and others who were estimated to about twenty (20) of them suspecting her to have bewitching the students. It is also on record that the deceased named the suspects to the VEO (PW2). Those suspects according to PW2 were Emmanuel Mayemba, Josephat Kilasi, Petro Mdendemi, Daudi Mwageni, Tegemea Danda, Annastela Ndikwega, Luwanja, Neema Mvile and Lidia Mdendemi. Despite the deceased naming the culprits, the charge of murder was preferred against Evodia Mtweve, Yolanda Mchiio, Anthony Magehema, Titho Nzota and Emmanuel Mayemba. Equally, at trial PW2 (VEO), at page 62 of the record of appeal, listed names of suspects as alluded to above, but he added the name of Petro Nzota while in re-examination at page 67 the same witness included another suspect, that is; Petro Magehema. Angel us John Mayemba (PW4) husband of the deceased, came up with a different list of 14 suspects as appears on page 75. The question of who brutally murdered the deceased remained unanswered. In the circumstances, at most the 1s t and 2n d accused were mentioned by the deceased in her dying declaration, but those were not convicted by the trial court, instead those who were strangers to the deceased's dying

declaration (appellants) were convicted and sentenced accordingly. It is settled in our jurisdiction that proper identification in an ecstatic movement and commotion of angry people who are enslaved by strange indoctrination of ideologies associated with beliefs on witchcraft and having seriously engaged into action of either killing or causing injuries to the alleged witches is of utmost importance. Proper identification to single out the appellants amongst many, required strict proof which is missing in the instant appeal. The rule as to proper identification is well established from countless decisions of the Court 'that* no court should rely on the identification evidence unless it is satisfied not only that, environments were friendly to the identifying witness, but also taking into account all other prevailing circumstances including the type of movements in the crime scene with a view to eliminating any possibility of mistaken identity. A comprehensive consideration of this principle was made by the Court in the case of Anthony Kigodi v. Republic, Criminal Appeal No. 94 of 2005 (unreported), in which we held inter alia that: "We are aware o f the cardinal principle laid down by the erstwhile Court of Appeal o f East Africa in

Abdaflah bin Wendo and Another vs. Rex (1953) EACA 116 and followed by this Court in the celebrated case o f Waziri Amani vs. Republic (1980) T.L.R 250 regarding evidence o f visual identification. The principle laid down in these cases is that in a case involving evidence of visual identification, no court should act on such evidence unless all the possibilities of mistaken identity are eliminated and that the Court is satisfied that the evidence before it is absolutely watertight." (Emphasis is provided). In other cases of Mafuru Manyama & Others v. Republic, (Criminal Appeal 256 of 2007) [2011] TZCA 129; Jaribu Abdallah v. Republic, Criminal Appeal No. 220 of 1994 (unreported), the Court made similar observation that: "In matters o f identification, it is notenough merely to look at factors favouring accurate identification, equally important is the credibility o f the witness. The conditions for identification might appear idea! but that is no guarantee against untruthful evidence. The ability o f the witness to name the

offender at the earliest possible moment is in our view reassuring..." The rationale of having strict rule on identification of the accused and the reliability of the identifying witness is to avoid possibilities of an innocent person being implicated and punished mistakenly, while leaving the true perpetrators at large. In similar circumstances, like in the instant appeal, the Court decided in the case of The Director of Public Prosecutions v. Nyangeta Somba and 12 others [1993] T.L.R 69, where one villager passed away, it seems the relatives had some questions surrounding that death, so they sought answers from a fortune-teller who told them that their relative was not actually dead, but was bewitched and turned into a zombie @ msuku/e by some two witches. The community resolved the two witches must be put to death. One of the alleged witches smelled the danger, he ran to the police station. When the police arrived to the village, the first alleged witch was already crucified and burnt beyond recognition. The issue of identification of the murderers cropped up and found its way to the Court. Regarding that, we held:

"Given the huge crowd, the commotion o f the moment and the charged atmosphere, reiiabiiity o f the identity evidence o f the three witnesses was doubtful." The above case, was similar to this appeal that once huge crowd is charged with commotion atmosphere, reliability of virtual identification is doubtful even if, it is in day light. See: Andrea Zabron & Another v. Republic/ (Criminal Appeal No. 488 of 2016) [2019] TZCA 274; and Mereji Logon v. Republic, Criminal Appeal No. 272 of 2011 (Criminal Appeal No. 273 of 2011) [2013] TZCA 408. In the latter case, the robbery was committed in a busy street of Metropole area at Arusha city, statement of a single identification witness did not eliminate the possibility of mistaken identity. When the case was appealed to the Court, we held: "Applying the principleswe laid down in Waziri Amani v Republic (supra) to the present appeal, we do not think all possibilities o f mistaken identity were eliminated with respect to the appellant. Possibility that someone else other than the appellant was responsible for the offence that took place in a busy street cannot be ruled out: Such doubts should operate in favour o f the appellant"

In respect to the instant appeal, in the crowd of many people, the commotion of the moment and the charged atmosphere with angry believers, indoctrinated with strange beliefs associated with witchcraft, the evidence of identifying witnesses PW2 and PW4 was highly doubtful. At most, the dying declaration would closely be reliable because she mentioned the suspects immediately after being rescued, while she was still having a fresh memory, Since those who were mentioned by the deceased that is, the 1st and 2n d accused, during trial were acquitted, the appellants were not among those who were mentioned by the deceased. We therefore, agree with the concurrent analysis of the learned counsels that the appellants were not properly identified at the scene of crime and there is no clear evidence implicating them with the offence they were charged with. Considering the issue of contradictions of evidence of the prosecution witnesses, it is apparent in the record of appeal as alluded to above and argued by the appellants' counsel, supported by the learned Principal State Attorney that the testimonies of PW2 not only contradicted with the testimonies of PW4, but also contradicted the contents of the deceased

dying declaration. In brief, PW2 being a VEO, testified that the deceased mentioned to him 8 suspects (page 62) which names were different from the deceased dying declaration. At the same time in re-examination PW2 mentioned 9 suspects including Petro Magehema. When he was asked by wise assessors to clarify on the relationship between Petro Magehema and Anthony Magehema, he averred that the two are one and the same person. Equally PW4 came up with a different list of suspects. In that state of contradictions, we agree with M r. Mwegole that those contradictions went to the root of the case itself. In the circumstances, we find no better words than those we uttered in the case of BaHati Makeja v. Republic, [2010] T.L.R. 49 that: "In order to do substantive justice in a case/ the court attempts 'to separate the grain from the chaff, truth from falsehood/ Where this is not feasible because the grain and the chaff are inextricably mixed up, the only available cause is to reject or discard the evidence in its totality" Considering in totality of the nature of this appeai, we find that the prosecution evidence left many holes which created reasonable doubts to connect the appellants with the offence of murder of the deceased Hilda

Kinanilo. Ultimately, we find merit in the appeal. Consequently, we quash the conviction and set aside the sentence. We further order an immediate release of the appellants from custody unless otherwise held for other lawful reasons. DATED at IRINGA this 30th day of November, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P . J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 2n d day of December, 2024 in presence of M r. Jally Willy Mongo, learned counsel for the 1s t Appellant, Mr. Jassey Mwamgiga, learned counsel for the 2n d Appellant also holding brief for M r. Lazaro Hukumu, learned counsel for the 3r d Appellant and M r. Herbet Ishengoma, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL