Yustine Robert vs Republic (Criminal Appeal No. 299 of 2020) [2024] TZCA 1004 (29 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA ( CORAM: SEHEL. J.A., KIHWELO. 3.A. And MPEMU. J.A.^l CRIMINAL APPEAL NO. 299 OF 2020 YUSTINE ROBERT.. ................ ................ ............ APPELLANT VERSUS THE REPUBLIC ................. .............. .............. .......... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Sumbawanga) fMranao, J.l dated the 13th day of July, 2020 in Criminal Sessions Case No. 13 of 2016 JUDGMENT OF THE COURT 21st & 29th October, 2024 SEHEL, J.A.: On 6th April, 2013, around 13:00 hrs., Jackline Lwiche, the wife of the appellant was found drown in the water well. She was still alive but very weak. She could not speak. Having being rescued, she signaled that there were more people in the water well, Two dead bodies were retrieved from the water well; one body was of a boy aged six (6) years and the other one was of a girl aged four (4) years. The bodies were identified to be of the appellant's son and daughter, Frank Yustine and Elizabeth Yustine respectively.

It happened that, on that same day, early in the morning, around 07:00 hrs., a four (4) months old child was found abandoned on the junction of the road, Upon receipt of the information, the ten-cell leader of Majimoto area, one, Edwin s/o Nkolo (PW2) went to the scene in the company of other people, including Flora Makungu (PW1), the neighbour and landlady of the appellant. At the scene, apart from seeing the abandoned baby, they also found flipflops, an African wrap, a piece of curtain, some traces of vomits and blood. The child was identified as the daughter of the appellant. PW1 described that, the scene appeared as if there were people fighting. But she (PW1) also noticed that the wife who was rescued from the water well had no bruises, she was just weak. The evidence shows that the appellant and his family were residing in the rented house of PW1. According to PW1, on 5th April, 2013 at around 20:00 hrs., she heard the couples quarreling. The husband was chasing his wife from the house. He was telling the wife to take all her belongings and go back to her parents and to leave the jug behind which the wife took. In the course of the tussle, the wife broke the jug. The husband kicked her and told her that "kwa kunivunjia ja g i iangu, tukio nitakalolifanya Majimoto n i h isto ria " meaning "as you have

broken m y jug, the thing I w ill do, it w ill never be forgotten in Majimoto area/'P W l intervened and managed to settle them down. She then left and went to escort her visitor. Upon return, PW1 noticed the couples were not at home. At around 22:00 hrs., she saw the husband returning home alone. She asked on the whereabouts of the wife, he replied, he did not know. In the wee small hours, at around 01:00 hrs., PW1 woke up for a call of nature and noticed the appellant's house was padlocked from the outside suggesting that he was not at home. She did not take it seriously as she then went back to sleep. On the next day, in the morning, she was informed by PW2 on the abandoned child. They both went and saw the child. PW2 phoned the police who responded to the call. They took the abandoned child and, in the afternoon, they collected the two dead bodies. They also took the wife of the appellant to Mamba Health Centre but later they were referred to Mpanda Regional Hospital but the next day, that is, on 7th April, 2013 she passed away. The appellant was arrested and subsequently arraigned before the High Court of Tanzania at Sumbawanga sitting at Mpanda (the trial court), with three counts of murder contrary to sections 196 and 197 of

the Penal Code. During trial, the appellant denied the allegations. He stated that, on 5th April, 2013, when he returned from work, he noticed that some of home furniture were missing. Only bed and a mattress were left. He asked his wife as to what had happened, she told him that the items were stored at PW l's house as she wanted to leave him but PW1 advised her to wait for his return. The appellant then asked his wife to bring back the home furniture which she did. Thereafter, the wife prepared dinner and they ate. The appellant went to sleep but when he woke up, the wife was not at home. He did not bother to ask and in the morning, he went to his usual business of selling water in a wheel barrow until when he was arrested and taken to Majimoto Police Station. At the conclusion of the trial, the three assessors who sat with the learned trial Judge unanimously returned a verdict of guilt against the appellant. The learned trial Judge concurred with the assessors and as a result, the appellant was found guilty, convicted and sentenced to suffer death by hanging. In grounding the conviction against the appellant, the learned trial Judge relied on the circumstantial evidence. He was convinced that the following three circumstances formed an incriminating chain against the

appellant; one, the quarrel between the two which was witnessed by PW1; two, the words uttered by the appellant after the deceased had broken the jug, and three, the conduct of the appellant for not making a follow up of his wife after he had noticed she was not at home. At the end, the learned trial Judge concluded that the appellant failed to offer any plausible explanation regarding circumstances leading to the death of the deceased family, as such, there was no any other possible explanation than a verdict of guilt. Aggrieved, the appellant lodged a memorandum of appeal comprised of the following three grounds: "1. That, the tria l court erred in iaw and fact in finding the appellant g u ilty o f the offence charged and convicting him while the prosecution failed to prove the offence to the required standard. 2. That, the tria l court erred in law and fact to find the appellant g u ilty o f the offence charged and convicting him without considering the contradictions and inconsistencies o f the prosecution evidence. 3. That, the tria l court erred in law and fact to find the appellant g u ilty o f the offence charged and convicting him relying on circum stantial evidence without considering its relevance and its adm issibility conditions. "

At the hearing of the appeal, Mr. Baltazar Sichiljma Chambi, learned advocate who was assigned the dock brief of the appellant, appeared for the appellant. On the other hand, Mr. Deusdedit Rwegira, learned Senior State Attorney, appeared for the respondent/ Republic. When Mr. Chambi took the floor to submit on the appeal, he informed the Court that, he consulted with his client and they agreed to argue the first and the third grounds of appeal together while the second ground of appeal would be argued separately. Starting with the first and third grounds of appeal, relying on the authority in the case of Msafiri Hassan Masimba v. The Republic, (Criminal Appeal No. 302 of 2015) [2016] TZCA 694 (3 August 2016; TANZLII), Mr. Chambi argued that, in terms of sections 110 and 114 of the Evidence Act (the TEA), the burden of proof is always on the prosecution to prove the charged offence against the appellant beyond reasonable doubt. He contended that in proving the offence of murder against the appellant, the prosecution paraded a total of four witnesses and tendered three exhibits, namely, two Post Mortem Examination Reports (PMER) of Frank Yustine and Elizabeth Yustine and a sketch map but they failed to tender the PMER of the late Jackline Lwiche.

It was his submission that the learned trial Judge correctly addressed himself on the onus of proof and on the principles on the circumstantial evidence. That the evidence must lead to inevitable conclusion that the death of the deceased was the act or contravance of the appellant and that there is no alternative which can with reasonable probability account for the death of the deceased, To support his submission, he referred us to the case of Didas s/o Siria v. The Republic, (Criminal Appeal No. 20 of 1979) [1979] TZCA 3 (22 November 1979; TANZLII). He submitted that the circumstances relied upon by the prosecution have not been satisfactorily established, and that, the circumstances said to have been established against the appellant do not provide a complete chain required to prove the guilt of the appellant as each rope broke at a certain point. He pointed out that the alleged fight between the appellant and his late wife over the broken jug on the night of 5th April, 2013 ended on that same night after PW1 had amicably resolved their dispute. Therefore, the chain ended on that night because PW1 said they were both calmed down. He further argued that, according to the evidence of PW2 and PW1, the wife was found drown in the water well in the afternoon of 6th

April, 2013 and she was still alive. To his view, if the wife was drowning on the night of 6th April, 2013 by the appellant as suggested by PW1, it would not have been possible for her to still be alive in the next day, in the afternoon. According to Mr. Ghambi, on the whole, the circumstantial evidence considered by the learned trial Judge does not irresistibly lead to the conclusion that the appellant killed the deceased. The only possible explanation was suspicious that may be the appellant was involved in murdering his family which cannot be taken as the basis of his conviction and sentence. With that submission, Mr. Chambi prayed to the Court to quash the conviction, set aside the sentence and release the appellant from prison. Mr. Rwegira opposed the appeal, contending that the circumstantial evidence relied on by the prosecution which later the trial court used in convicting the appellant irresistibly establish the guilt of the appellant beyond reasonable doubt, and that, there were no any other co-existing circumstances which would have weakened or destroyed the inference of such guilt as submitted by Mr. Chambi. Mr. Rwegira argued the circumstances leading to the conviction of the appellant were; one, a night before the deceased was found in the water well, that is, on 5th April, 2013 at around 20:00 hrs., there was a

fight between the appellant and the wife over household items which was witnessed by PW1. Two, the words uttered by the appellant during the fight suggested that the appellant had in mind to kill his wife, and three, the conduct of the appellant for not taking any action after noticing that the wife was not at home. Mr. Rwegira pointed out that, in his defence, the appellant admitted to fight with his wife that was later resolved by PW1 but when he woke' up at night, he noticed his wife and children were missing, Mr. Rwegira argued that it was inconceivable for the appellant to go back to sleep. Logic and common sense required him to look/search after his family but instead he continued with his sleep and in the morning, he went to his usual business. It was his submission this alone proves that the appellant knew what he did on that night. Therefore, he contended that all these inculpatory facts are incompatible with the innocence of the appellant. Responding on the non-production of Jackline's PMER, citing the case of Ghati Mwita v. The Republic, (Criminal Appeal No. 240 of 2011) [2013] TZCA 170 (12 March 2013; TANZLII), Mr. Rwegira argued that death can be proved by other evidence which will lead to the conclusion that the person in question is not alive. He contended that there is sufficient evidence proving the death of Jackline Lwiche that

occurred on 7th April, 2013, and that, her death was unnatural. Such evidence came from PWl, PW2, PW3 and PW4. With that submission, Mr. Rwegira invited us to dismiss the appeal. Mr. Chambi briefly rejoined that the appellant was not disputing the fact that there was death of three people. His complaint was that he did not kill his family. Regarding the circumstantial evidence, he reiterated that the chain of events was not connected. It was broken at some point in time. Having duly considered the submissions of both parties and reviewed the record, we wish first to state that this being a first appeal, the Court is entitled to re-evaluate and reconsider the evidence tendered before the trial court, and if appropriate, arrive at its own decision. We shall do so in this appeal. From the rival submissions of the counsel for the parties and our deduction of the grounds of appeal, the issue for our determination on these two grounds of appeal is whether the circumstantial evidence in the matter before us point the finger to the appellant and there was no any other possible explanation than the guilt verdict. The law relating to circumstantial evidence has long been settled in our jurisdiction that, before a person is convicted entirely on

circumstantial evidence, the court must be satisfied that the inculpatory facts are inconsistent with the innocence of the accused person and incapable of any other reasonable hypothesis than that of his guilt -see: the cases of Simon Musoke v. R [1958] 1 E A. 715; Abdul Mganyizi v. The Republic (1980) T.LR. 263; John Magula Ndongo v. The Republic (Criminal Appeal No. 18 of 2004) [2005] TZCA 41 (30 August, 2005; TANZLII) and Didas s/o Siria v. The Republic (supra). In the case of John Magula Ndogo v The Republic (supra), it was cautioned that: "...it is necessary before drawing the inference o f g u ilt from circum stantial evidence to be sure that there are no other co-existing circum stances which would weaken or destroy the inference . " Again, in the case of Ally Bakari & . Another v. The Republic [1992] T.LR, 10, we categorically stated that: "Also pertinent... is the rule that in a case where the evidence against the accused is wholly circum stantial, the facts from which an inference adverse to the accused is sought to be drawn r ♦ m ust be proved beyond a ll reasonable doubt, and m ust be clearly connected with the fact sought to be inferred therefrom ."

In that regard, the circumstances must be conclusive in nature and the chain of evidence must be so complete as to leave no any other reasonable conclusion inconsistent with the innocence of the accused. In this appeal, we have stated earlier that the learned trial Juge Inferred fight, words uttered and the conduct of the appellant to ground conviction oh the appellant. We shall look at each of these strands to see if there are no other co-existing facts which would have weaken the appellant's inference of guilt. First, we gathered from the record of appeal that, indeed, there was a quarrel between the appellant and his wife. This fact was testified by PW1 and supported by the evidence of the appellant. However, the said fight was resolved by PW1 on that same night to the extent that the wife cooked dinner for his husband which he ate and went to sleep. With such evidence in the record of appeal, we entirely agree with the submission of Mr. Chambi that the chain of fight was broken thus it cannot be said that it connected to the discovery of the wife in the water well and the two deceased children found in the water well. On our part, we failed to find any chain connecting the appellant with death of his family member. After the quarrel was amicably resolved by PW1, there was no more strand to connect the death with the fight. The two

incidents were separate, Thqy cannot. be linked to each other. Therefore, we find that the learned trial judge misconceived the facts when he held that there was unbroken chain of events which irresistibly point to the guilt of the appellant. Secondly, in the same vein, we do not find any connection with the words claimed to be uttered by the appellant, if at all such words were uttered, with the wife being found drown in the water well. As correctly argued by Mr. Chambi, it is highly improbable for a person to be drown at around 22:00 hrs. and to be found alive in the next day around 13:00 hrs. Besides, according to the evidence of PW1, the wife had no bruises at all. Moreso, in his defence case, the appellant said that the wife wanted to leave him. As such, looking at the evidence in totality, there is a great possibility of the wife to have developed post natal depression leading to her committing suicide and even kill her own children. In other words, in this appeal, there is another possible explanation on the death of the family of the appellant. Lastly, there is an issue of the conduct of the appellant. On this, we wish to talk about the fundamental right in all criminal cases, that the accused person is presumed to be innocent until proven guilty. As such, a prosecutor is required to prove beyond reasonable doubt that

the accused committed the crime, and that, generally, the accused person bears no such burden unless specifically stated in the statute, for instance, in the Wildlife Conservation Act, the accused is required to prove he/she has a lawful permit to possess a Government Trophy. And in a case depending wholly on circumstantial evidence, proof must be shown in every single fact where inference has to be drawn. This being the cardinal principle of law, the evidence of the accused cannot be used to connect the unproven and unbroken chain of the prosecution case. The burden always lies to the person who alleges, and in this appeal, it is on the prosecution. Besides, the conduct of the appellant was consistent with innocence as he did not run away, if at all he was the one who killed his wife and his family. The evidence shows that he was arrested at his usual business center. All in all, we are satisfied that the facts do not lead to the inference of guilt on the part of the appellant but rather there is only suspicion. But suspicious, however grave it may be, cannot and must not be taken to take the place of proof. We therefore find that the first and third grounds of appeal have merit. Given that these two grounds of appeal suffice to dispose the entire appeal, we see no reason to venture into the remaining grounds of appeal.

In the end, we find that the appellant was wrongly convicted with the offence of murder while there was no string connecting him with the murder of his family. We therefore allow this appeal, quash the appellant's conviction and set aside the sentence meted out to him. We order that the appellant Yustine s/o Robert, be released from prison forthwith unless he is held there for some other lawful cause. DATED at SUMBAWANGA this 26th day of October, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 29th day of October, 2024 in the presence of Mr. Peter Kamyalile holding brief for Mr. Baltazar Chambi, learned counsel for the appellant and Ms. Irene Mwabeza, learned Senior State Attorney for the Republic/respondent; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL