Peter Mabara vs Republic (Criminal Appeal No 242 of 2016) [2017] TZCA 327 (14 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUSSA, J.A. MUGASHA. J.A. And MWAMBEGELE, 3.A.) CRIMINAL APPEAL NO. 242 OF 2016 PETER MABARA .................................................................................... APPELLANT VERSUS THE REPUBLIC .............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Matoqolo, J.) Dated the 1st day of March, 2016 In Criminal Session No. 46 of 2014 JUDGMENT OF THE COURT 6th & 14th December, 2017 MUSSA. J.A.: In the High Court of Tanzania, at Bukoba registry, the appellant was arraigned for murder, contrary to section 196 of the Penal Code, Chapter 16 of the Revised Laws. The information alleged that on the 24th day of June 2012, at Bishaka Mushozi Village, within Bukoba District, the appellant murdered a certain Advera Makanyaga Mathias, whom we shall hereinafter refer to as "the deceased."

The appellant refuted the information, whereupon the prosecution featured ten witnesses and several documentary as well as physical exhibits in support of its case. On his part, the appellant gave sworn evidence to refute the prosecution accusation. At the end of the trial, the learned trial Judge (Matogolo, J.) was impressed by the version told by the prosecution witnesses and, accordingly, the appellant was found guilty, convicted and handed down the mandatory death sentence. Dissatisfied, the appellant presently seeks to impugn the verdict of the High Court upon a memorandum of appeal which is comprised of four points of grievance, namely:- "1.That, the relied circum stantial (sic) are capable o f other reasonable hypothesis than that o f the appellants'guilty. 2. That, the case against the appellant was not proved to the h ilt follow ed im properly establishm ent o f the allegedly clothes to belong to the appellant (sic) as w ell as the failure o f tendering (i.e. clothes before the tria l court. 3.That, M alice aforethought was not w ell established.

4. That, without prejudice the foregoing ground (sic) (i.e. No. 2); the Hon. Trial Judge based on suspicious evidence." When the appeal was placed before us for hearing, the appellant was represented by Mr. Josephat Rweyemamu, learned Advocate, whereas the respondent Republic had the services of Mr. Athumani Matuma, learned Senior State Attorney. As it were, Mr. Rweyemamu fully adopted the foregoing memorandum which was prepared by the appellant and argued in support of the appeal. On his part, Mr. Matuma strenuously resisted the appeal by fully supporting the trial court's verdict. Ahead of our reflection and consideration of the learned rival contentions, we think it is necessary to explore the factual background giving rise to the arrest, arraignment and the ultimate conviction of the appellant. At the helm of the prosecution version, was the testimony of Marcelina Bigira (PW6), a peasant resident of Kagya Bugabo Village. Marcelina is a cattle rearer and had employed the appellant as a herdsman. The appellant originated from Kahama District but upon being engaged, PW1 provided a room for him at the backyard of her residential house where he used to sleep. The evidence was to the effect that PW6 was also

living together with the deceased, who happened to be her granddaughter and one Leticia Leopold, who was her house girl. At the material times, the deceased was a form two pupil at kagya Secondary school. According to PW6, the daily schedule of business assigned to the appellant was for him (the appellant) to take out the cattle for grazing around 7.00 a.m., then, midday, she, Leticia or the deceased, whoever was available, would take food to the appellant at the grazing fields and; around 7:00 p.m. the appellant would return home with the beasts. On the fateful day, PW6 was at home up until sometime in the afternoon when she left for a locality called " Kilim ilile." By then, Leticia had already prepared the appellant's lunch and so, before her departure, PW1 instructed the deceased to take the food to the graze fields. PW1 returned home a good deal later around 8.00 p.m. but it was only Leticia who was present. As it turned out, Leticia informed her (PW1) that the deceased had not returned home ever since she took food to the graze fields during midday. As regards the appellant, Leticia informed her that he actually returned the beasts around 6:00 p.m., but after he milked the cows, he took bath, changed his clothes and then left. As it were, PW6 did not, in

the least, raise eyebrows over the absence of the appellant and the deceased for she said:- 7 lived with Peter for three years. I also lived with Advera for four years. I know their habit very well. Advera used to visit relatives sometimes was visiting her co-students. She had the habit o f leaving home without saying. Peter Mabara has also the tendency o f leaving without inform ation som etim es sleep there (sic)." Thus, against the foregoing backdrop, on the following morning, PW1 assigned to herself the function of a herder. She took out the animals and in the company of a family dog, she headed for the graze fields. Whilst there, the dog suddenly started barking at something in a trench. PW6 followed closer and, no sooner, she bumped into human remains. She retreated back in shock and seemingly raised an alarm. Her nephew, namely, Elemes Bigira (PW5) who, incidentally, was cutting pasture grasses in the neighbourhood heard the shouting and rushed to where her aunt was. Upon moving closer PW5 and Pw6 immediately recognized the fallen

body to be that of the deceased. They raised further alarms, in response to which several persons immediately attended including the hamlet chairperson, namely, Longino Rwegasira (PW8) and No. D7603 Detective Sergeant Rajab (PW1). The latter summarized the condition under which the body was found in the following words:- "we found the deceased body in a pit/trench caused by floods it was dumped therein with her head down and feet up. As it was at a place with ta ll grasses, the deceased body was covered with those grasses. There was also a big stone which was placed over the deceased's body on her back and part o f her head. The deceased's body was bleeding from her mouth, nose and from the ears. Her private part (vagina) was also bleeding. The deceased had two underwears both were torn and was (sic) wet due to blood. One underwear which was inside was white and another underwear boxers was black in colour. They were on the deceased's body but torn in the vagina area. The deceased had also put on a draft skirt which was also stained with blood. She had put on two Tshirts one white and another greenish in colour. They were both stained with blood." 6

Corresponding remarks were made by Dr. Kahamaba Gozbert (PW2), a medical officer, who also had attended the scene. Upon a post mortem examination, PW2 noted that the deceased's cervical vertebral were loose, just as her jaw was broken. The deceased also had lacerations on her vaginal areas with some blood oozing from her vagina, ear, nose and mouth. According to PW2, death resulted from "violence!" Whatever he meant by that. At the scene, PW6 did not make it a secret to PW1 that she suspected the appellant to be the killer. As for PW5, he had an additional tale which he, howerver, only revealed a good deal later during the trial and, this is what he said happened on the previous day of the occurance:- "On 24/06/2012 at about 4:30 p.m. I went to the bush (pasture area) to carry grasses. I saw Advera and Peter Mabara. Peter Mabara was eating and Advera was ju st sitting nearly (sic). Peter Mabara sitted (sic) on the stone and Advera sitted (sic) on the ground. They were at the low er part (bondeni) above there was a hill. I was at the distance o f about 10 m etres from them.... The deceased's body

was a t the same place I found Peter Mabara and Advera the previous day." We shall have occasion to comment on this piece of evidence at a later stage of our judgment. In the meantime, to resume the factual setting, from the scene, the deceased's body was transferred to the residence of PW6 where PW1 conducted a search in the room where the appellant used to sleep. In that room, a whitish pair of trousers and a blueish shirt were, respectively, retrieved and, of significance, both were blood stained. Afterwards, the deceased's body was taken to Bukoba hospital where a blood sample was seemingly extracted from her body for the purpose of a DNA profiling test. PW1 did not quite disclose as to who exactly extracted the blood sample although, he said, the blood sample; the deceased's clothes as well as those retrieved from the appellant's room were kept at Bukoba Police Station. In the meantime, Neema Mathias (PW9), who happens to be the deceased's mother, was, on that same day, informed of the sad news of her daughter's demise. As she was at the Bukoba Municipality, preparing herself to attend the funeral, she caught glimpse of the appellant who was standing at a road side at the Hamgembe suburb of the Municipality. Upon 8

seeing him, PW9 informed the police and, within a while, the appellant was apprehended. In the aftermath, on the 27th June 2012 the appellant was taken before a laboratory technician at Bukoba hospital, namely, Recipicius Kibate (PW4). Upon police instructions, PW4 extracted blood from the body of the appellant which he put in two bottles and handed it over to the police. Speaking of the exhibits collected by the police, PW1 said that the deceased's clothes, which bore, the police mark "exhibit A"; the accused's clothes which were marked "exhibit B"; the bottle containing the deceased's blood which was marked "exhibit C"; and the two bottles containing the accused's blood marked "exhibit D" were all submitted to the Chief Government Chemist (CGC) for a DIMA profiling and comparison test. The samples, he further told the trial court, were submitted to the CGC through a letter prepared by the Officer in-charge of Criminal investigations for Bukoba District (OC-CID). As it turned out, in the course testimony, PWl's attempt to produce the letter was objected to by the learned counsel for the appellant. The Ruling on the admissibility of the letter was deferred to a later date but, in the meanwhile, the testimony of 9

PW1 was continued to a finish. In the aftermath, the letter was eventually ruled admissible and adduced into evidence (exhibit P.7). In turn, Hadija Mrema (PW10) who is a Senior Chemist with the CGC confirmed having received the samples. In a nutshell, her material DNA deliberations, were to the effect that the deceased's blood sample correlated with that which was on the deceased's white underwear as well as the accused's pair of trousers. Her findings were in a report that was adduced into evidence as exhibit P.8. The witness told the trial court that all samples which were submitted to the CGC were, upon their deliberations, returned to the police. In this regard, it is noteworthy that at the commencement of PWl's testimony, he produced and adduced into evidence the deceased's two underwears, a skirt and two Tshirts which were collectively marked "exhibit P2." It should be recalled that the adduced clothes were amongst the items which were submitted to the CGC and returned at the end of the latters' deliberations. And yet, the irony is in the fact that, for some obscure cause, the other samples which were sent to the CGC were not adduced into evidence and PW1 spoke nothing about them. Those included the allegedly 10

blood stained clothes belonging to the appellant. With this detail, so much for the version as told by the prosecution witnesses. In reply to the prosecution version, the appellant did not quite refute the detail about being PW6's herder and that he was actually in the grazefields on the 24th June, 2012. According to him, the grazing activity was jointly operated by ten families. Thus, each family will provide a herder to graze the animals for three days at the end of which the duty alternated amongst the other families. The 24th June was the appellant's consecutive third day of grazing and, accordingly, if his account is anything to go by, the following day was to alternate to another family. The appellant's further account was to the effect that, on the fateful day, he knocked off from the grazefields around 4.00 p.m. following which he drove the animals back home and returned the others to their respective owners. Upon arrival home, he demanded lunch which was provided to him by Leticia. The appellant then milked the cows, took bath and departed for Kilimilile Village where he was destined to meet a certain Pastory who was indebted to him. Upon arrival, he could not immediately meet Pastory who was away from home. As it turned out, Pastory arrived

late during the night and, for that reason, the appellant spent the night at the former's residence. The next morning, the appellant boarded commuter transport to Bukoba Municipality where he desired to register his cellular phone sim card. Around 2:00 pm, as he was at the Hamugembe suburb, the appellant was apprehended in connection with the accusation giving rise to this appeal. Speaking of the prosecution accusation, the appellant completely dissociated himself from the allegations. More specifically, as regards the bloodstained clothes which were alleged to be his, the appellant had this to say:- "I am not aware with blood found on the clothes. I did not leave the clothes with any blood stains. The owner o f the cows I sent back to them would have asked me about those blood stains. Even Leticia herself whom I m et a t home while returning the cows back home did not ask me about blood stains on the clothes. There is no any evidence to show

that I returned at home with my clothes with blood stains." When the whole of the evidence was summed up to the lady and two gentlemen assessors who sat with the trial Judge, they unanimously returned a verdict of guilty against the appellant. On his part, the trial Judge found no cause to differ with the assessors and, as we have already intimated, the appellant was found guilty, convicted and sentenced to suffer death. Addressing us in support of the first and second grounds of appeal, Mr. Rweyemamu strenuously doubted the veracity of the prosecution detail to the effect that clothes belonging to the appellant were, indeed, retrieved and found to have blood stains which were eventually related to the deceased's blood sample. To worsen the doubts, he said, the prosecution did not even adduce the alleged clothes as evidence. In the premises, the learned counsel for the appellant urged us to discount the entire prosecution detail implicating the appellant on account of the alleged clothes. 13

Mr. Rweyemamu further submitted that without the detail about the blood stained clothes, the only evidence tending against the appellant is constituted in the suspicions harboured against him by the deceased's relatives. More particularly, counsel had in mind the testimony of PW6 who clearly implicated the appellant to PW1 and PW5 who claimed that he saw the appellant and the deceased at the scene of the incident on the previous day. The learned counsel for the appellant deplored the witness (PW5) for not disclosing the detail at the earliest opportunity in the wake of the discovery of the deceased's body. Mr. Rweyemamu referred to us a testimonial remark by PW1 who said that whilst he was at the scene, PW5 did not tell him anything. Thus, in sum, the learned counsel for the appellant impressed upon us to find that the case for prosecution fell short of proof and, accordingly, to allow the appeal. On the adversary side, Mr. Matuma resisted the appeal and fully supported the conviction and sentence. To begin with, whilst conceeding that the allegedly blood stained clothes belonging to the appellant were not adduced into evidence; the learned Senior State Attorney sought to explain away the shortcoming with the fact that the admissibility of exhibit P7 was determined after PW1 had finished his testimony. If we may, with respect, 14

express at once, as we have already intimated, PW1 adduced into evidence the deceased's clothes even before the objection on the admissibility of exhibit 7 was taken. The question is: What prevented him from adducing into evidence the allegedly blood stained clothes belonging to the appellant which had, by then, been returned by the CGC. In any event, granted that PW1 finished his testimony on the 10th February, 2016 and the Ruling on the admissibility of exhibit P7 was handed down on the following day, but what prevented the prosecution to recall PW1 to enable him produce the alleged clothes, the more so as at the time of the delivery of the Ruling the case for the prosecution was still in progress. To say the least, the prosecution did not assign any explanation, let alone a plausible one, as to why it did not adduce into evidence the appellant's clothes which were sent to the CGC and allegedly found with blood stains which matched the deceased's blood sample. Despite the glaring shortcoming, Mr. Matuma hesitated long before he eventually conceded that the entire evidence implicating the appellant through the alleged blood stained clothes was, in the result, devastatingly thrown into doubt. We think that the evidence relating to the alleged blood stained clothes was further undermined by the failure by the prosecution to 15

feature Leticia Leopord as its witness. In his defence, the appellant told the trial court that Leticia saw him as he arrived from the grazefields and he, actually, conversed with her before he departed from home. Leticia was listed as a prospective prosecution witnesses but yet, she was not featured to clarify on the detail about the appellant's attire. The general and well known rule is that the prosecution is under a prim a facie duty to call all material witnesses and if such witnesses are not called without sufficient reason being shown, the Court may draw an inference adverse to the prosecution (See Aziza Abdallah Vs The Republic [1991] TLR 71). In the matter at hand, the prosecution did not offer any explanation as to why Leticia was not featured as a witness and it is, thus, inferable under section 122 of the Evidence Act that her evidence would not have been favourable to the prosecution. Undeterred, the learned Senior State Attorney insistently argued that the conviction will still be sustained on account that the appellant was the last known person to be seen with the deceased who did not offer any explanation as to the whereabouts of the deceased. Mr. Matuma based his submission on the account given by PW5 with respect to seeing the appellant and the deceased on the previous day of the occurance. To 16

buttress his position, the learned Senior State Attorney referred us to the case of Makungire Mtani Vs The Republic [1983] TLR 179. True, in that case the Court found the obtaining circumstances to yield to more than considerable suspicion against the appellant who had rudely and evasively refused to give an explanation as to how the deceased mysteriously disappeared from his (appellant's) compound. But, unlike the situation at hand, in Makungire, the suspicious circumstances were corroborated by an incriminating fact that, the appellant was found with clothes bearing blood stains of the same blood group as the deceased is but different from his own. In the matter at hand, the only detail we have, is PW5's account of seeing the appellant and the deceased at the scene of the occurance on the previous day. Mr. Rweyemamu doubted the veracity of the witness for not promptly disclosing this detail, more particularly, in the immediate wake of the discovery of the deceased's body. We think counsel had a valid concern and, for that matter, we do also think that PW5 was not quite the salt of the earth. But, in any event, even if we are to believe him on that detail: So what? In the unreported Criminal Appeal No. 75 of 2013 - 17

Misoji Ndebile @ Soji Vs The Republic, the Court made the following observation "The fact that the appellants were the last known persons to have been with the deceased casts grave suspicious on them, but it is in itse lf not conclusive proof that they killed the deceased.... Other cogent corroborating evidence is necessary, for a suspicion, however ingenious can never be a substitute for proof beyond reasonable doubt." Corresponding remarks had earlier been made in another unreported Criminal Appeal No. 73 of 1991 - Richard Malengula Vs The Republic. We asked ourselves: Was there any other cogent incriminating evidence to supplement to PW5's last seen account? In that regard, Mr. Matuma suggested that the appellant's conduct of unceremoniously disappearing from the abode was adversely telling against him. With respect, we are far from being persuaded, the more so, given PW6's account that it was normal for the appellant to disappear from home without word. Thus, on the whole, the circumstances from which the inference of guilty was drawn against the appellant were not cogent enough to exclude 18

the possibility of his innocence. In the result, it is unsafe to sustain the conviction against him which we, accordingly, quash just as we set aside the sentence. The appellant should be released from prison custody forthwith unless if he is detained there for some other lawful cause. It is so ordered. DATED at BUKOBA this 14th day of December, 2017. K. M. MUSSA JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL J.C.M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. P.W SENIOR DEPUTY REGISTRAR COURT OF APPEAL 19