Ernest Evaristo vs Republic (Criminal Appeal No. 177 of 2015) [2017] TZCA 939 (29 September 2017)

INf THE COURT OF APPEAL OF TANZANIA AT TABORA {CO RAM: MBAROUK, J.A., MU6ASHA. J.A., And MWAMBEGELE, J.A.) CRIMINAL APPEAL NO. 177 OF 2015 ERNEST EVARISTO .................................................. .......... APPELLANT VERSUS THE REPUBLIC..................................................................... ....... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (MgonyaxJU dated the 15th day of December, 2014 in Criminal Sessions Case No. 107 of 2013 JUDGMENT OF THE COURT 26th & 29th September 2017 MUGASHA, J.A.: The appellant was found guilty as charged of the murder of s t a n s l a u s n z o g e l a (deceased), on 27th May, 2012, at Mkabuye village, within Kibondo district in Kigoma region. To prove its case the prosecution paraded five witnesses. These are: JONAS ANDREA (PW1), BAKARI AMON (PW2), ABDALLA GEORGE KASHUKU (PW3), G-1034 PC JIM M Y (PW4) and WP 3546 CPL FRIDA (PW5). Also the

-prosecution tendered three documentary exhibits namely: the post mortem examination report of the deceased, the cautioned statement of the appellant and the sketch map of the scene of crime. The summary of the prosecution case is to the effect that; on 26/5/2012 j o n a s a n d r e a (PW1) deceased's in law saw a group of 25 people led by one b u k u r u c h o b w a , a mentally challenged person heading to the residence of the deceased. On a close follow up, PW1 heard the said b u k u r u c h o b w a , telling the deceased to give him medicine because the deceased bewitched him. After the deceased gave medicine to b u k u r u c h o b w a , those who had accompanied him also claimed that, the deceased had bewitched the mad man and many other people in the village. Having smelled a rat, PW1 reported the incident to b a k a r i am o n (PW2), the Village Executive Officer who instructed him to take the deceased to the Village Offices for safety. On the same day, PW2 reported the matter to the police who came on the following day. The Police officers included a b d a l l a GEORGE k a s h u k u (PW3) and G-1034 PC jim m y (PW4) who upon arrival at the scene of crime found a group of people armed with variety of weaponry shouting demanding that the deceased must be killed because he is a witch.

PW3 and PW4 recalled to have been at the scene of crime to rescue the deceased but the attempt was impeded by the appellant who threatened them with a club and stones thrown to them by other people who had assembled outside the village office. The police shot in the air to disperse the crowd in order to prevent the deceased from being harmed. However, it was alleged that, the appellant accessed the village offices and used a club to hit the deceased on the head. Amid increased threats, PWZ ran away to save his life and returned on the following day only to find the deceased totally burnt. Also, the police officers (PW3 and PW4) broke the rear door and escaped for safety using their motorcycle leaving behind the deceased being attacked. While PW1 did not recall to have seen the appellant at the scene of crime, PW2 testified to have identified the appellant who was a subject in the village and doing business at the market. According to PW3 and PW4 they recalled to have identified the appellant at the scene of crime because they spent time pleading with him not to assault the deceased. On 27/5/2012 at 10.00 am WP 3546 c p l f r x d a (PW5) recorded the caution statement of the appellant while he was at the hospital. According to the report on the

postmortem examination (Exhibit PI) the cause of death was: " BURNS - acute circulatory failure secondary to neurogenic shock" The appellant denied to have committed the offence, though he admitted to have been at the scene of crime on the fateful day on his way from the church and found the fracas had already ensued. He claimed to have been injured at the scene of crime when stones were being hurled at the deceased by the group of villagers. As such, he left the crime scene, headed to the nearby dispensary for treatment. Later he was ferried to Kibondo Health Centre for further treatment and was admitted for five days. The news on deceased's death found him still at the hospital. He denied to be related to b u k u r u c h o b w a , or to have held a club at the scene of crime. The appellant was found convicted of the murder. In convicting the appellant, the learned trial judge relied on the evidence of PW2, PW3 and PW4 to have properly identified the appellant at the scene of crime being the one who struck the deceased with a club. The trial Judge concluded that the fatal blow was that of the appellant which caused death of the deceased. The appellant was subsequently sentenced to suffer death by hanging.

own and arrive a t the conclusion that it was true and credible without considering the defence evidence," In s h i j a m a s a w e vs r e p u b l i c (supra), the Court was confronted with a situation where the trial court apart from acknowledging only some of the defences, and making reference to them only by passing, there was no critical analysis and evaluation of the appellant's defences at all. The Court categorically said that, failure to consider a defence case is fatal and may vitiate a conviction having referred to the principle laid down in among others, the case of h u s s e in i d d i v s r e p u b l i c (supra). Moreover, it is important for the trial magistrate or trial judge to not only summarise the evidence but also make a critical analysis and evaluation in order to determine the worthiness, of the evidence, its credibility or believability and significance by applying the legal standards of admissibility, burden and standards of proof and weight of such evidence, in both the prosecution and the defence in criminal case and parties in civil cases, ( s h ij a m asaw e vs r e p u b l i c (supra) and a m i r i a n d m oham ed v s r e p u b l ic (1994) TLR 138).

Before considering the grounds of appeal and as rightly pointed out by the learned Senior State Attorney, at the outset, we wish to point that we aware that this being a first appeal, the Court has a right and duty to re consider and re-evaluate the evidence and draw its own conclusions, (See OKEIMO v s r e p u b l i c [1972] E.A.32). However, such jurisdiction must be exercised with great caution. The jurisdiction can be exercised if there is no evidence to support a particular conclusion; or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong. (See PETERS VS SUNDAY POST LIMITED [1958] E.A 424). In the first ground of appeal, it is the appellant's complaint that, he was not fairly tried because the trial judge did not consider his evidence. The Court was confronted with a similar scenario in the case of H U S S E IN IDD A N D A N O T H E R v R E P U B LIC (supra) the first appellant together with another person were convicted of murder. The trial court dealt with the prosecution evidence implicating the first appellant and reached at the conclusion without considering the defence evidence. The Court thus, held: "It was a serious m isdirection on the part o f the tria l judge to deal with the prosecution evidence on its

At the hearing of the appeal, the appellant was represented by Mr, Yussuf Mwangazambili, learned counsel whereas the respondent Republic was represented by Mr. Juma Masanja, learned Senior State Attorney. Initially, Mr. Mwangazambili abandoned the 4th and 5th grounds of appeal and remained with four grounds of complaint. Addressing the 1st and the 2n d grounds of appeal, he submitted that the trial judge in her judgment did not consider the defence evidence which is to the effect that, the appellant disembarked from the scene before the occurrence of the killing incident. He argued this to be a serious misdirection which adversely affected the appellant who in result, did not get a fair trial and the conviction was vitiated. To back his proposition the learned counsel cited the cases of HUSSEIN IDDI AND ANOTHER VS REPUBLIC (1986) TLR 166 and the unreported case of s h l j a m a s s a w e v s r e p u b l i c , Criminal Appeal No. 158 of 2007. He added that, the conviction of the appellant was wrongly arrived at because the trial judge did not make a proper analysis and evaluation of the prosecution evidence which is discrepant and unsafe to be acted upon to ground the conviction. He urged us to quash the conviction and set aside the sentence and order the release of the appellant.

Dissatisfied with the conviction and the mandatory sentence, the appellant has preferred this appeal. The appellant through Mr. Yussuf Mwangazambili learned counsel, filed a Memorandum of Appeal Containing six grounds as follows:

1. That, the trial judge had grossly erred in law for n ot a t a ll analyzing and evaluating the defence evidence.
2. That, the trial judge had erred in law and fact for failure to properly evaluate the prosecution evidence.
3. That, as to the cause o f death established by the Report on Post Mortem Examination the tria l judge grossly erred to convict the appellant.
4. That as p er Ruling on Prim afacie case on record the trial court ceased to be im partial body and affected the fa ir adm inistration o f justice.
5. That the tria l Court ceased to be im partial as Assessors did cross examine witnesses in substance to inquire testim onial veracity o f witnesses.
6. That as to the fact that caution statem ent was taken before the time when the alleged offence was committed, the learned trial judge erred in adm itting the statem ent to form part o f the record.

The said rationale of the critical analysis was emphasized in the case of LEONARD MWANASHQKA vs r e p u b l ic , Criminal Appeal No. 226 of 2014 (unreported) where we said: "It is one thing to summarise the evidence for both sides separately and another to subject the entire evidence to an objective evaluation in order to separate the ch aff from the grain... Furthermore, it is one thing to consider the evidence and then disregard it after a proper scrutiny or evaluation and another thing not to consider the evidence a t a ll in the evaluation and analysis." In the present case, counsel have urged us not to order a retrial because the prosecution evidence is so deficient and failed to prove the charge of murder against the appellant who testified that he neither murdered the deceased nor was present at the time of the killing. We have to make a determination. From pages 120 to 127 of the record of appeal is the judgment of the trial court whereby the trial judge narrated the evidence of PW1 to PW5.

Thereafter, having expressed her sentiments on the Rule of law and brutal killings, she finally concluded as follows: "On the basis o f the above findings o f fact and evidence adduced before the honourable court, I am satisfied that the prosecution has proved its case beyond reasonable doubt and satisfied that the accused killed the deceased with m alice aforethought I accordingly find the accused Ernest Evaristo guilty o f the offence o f murder". It is crystal clear that the trial judge ill treated the appellant's evidence having not analysed and evaluated the main issue of the appellant's absence at the scene of crime when the murder was committed. This was an omission which vitiated the appellant's conviction and occasioned a miscarriage of justice on the part of the appellant. We find the first ground merited. Under ordinary circumstances, we would have ordered a retrial. But as a matter of principle a retrial should not be a remedy if it would not be in the interests of justice to do so. (See f a t e h a l i m a n ji v s r e p u b l i c [1966] EA 343. We shall now consider if on record there is strong prosecution evidence necessitating a retrial. This takes us to the determination of the remaining grounds of appeal.

while the deceased continued to be assaulted by the group. At page 41 in response to a question by assessor as to where the deceased was set ablaze PW2 replied as follows: "... They burnt him outside in front o f the office since I ran away, I didn't see Evaristi neither anyone else taking the deceased outside the office and burn him ." Evaristi, we presume is the appellant in the present appeal. Thus none of the prosecution witnesses was present when the appellant was set ablaze. At this juncture, the question to be answered is whether or otherwise what caused the death of the deceased is as per conclusion of the trial judge. Having omitted to make reference to the report on post mortem examination (Exhibit PI), the trial judge concluded the cause of death as reflected at page 125 of the record as follows: "//? the case before this court, the accused used a dub to attack the deceased on the head which is a sensitive p art o f the body. According to the testimony, there were several blows which resulted into deceased's unconsciousness; the accused's words before the incident that the deceased has to

The complaint of the appellant in ground six, is that the cautioned statement Exhibit PI was wrongly acted upon by the trial judge because it was recorded on 27/5/2012 at 10.00 am before the occurrence of the fateful incident. Was this a confession entitling the trial judge to ground the conviction? Section 3(1) of the Evidence Act [CAP 6.RE.2002] defined confession as follows: "(1) In this Act, unless context requires otherw ise- "confession" m eans- (a) words or conduct ; or a combination o f both words and con d u ctfrom which ; whether taken alone o r in conjunction with other facts proved\ an inference m ay reasonably be drawn that the person who said the words or did the act o r acts constituting the conduct has com m itted an offence; or (b) a statem ent which adm its in term s either an offence o r substantially that the person making the statem ent has com m itted an offence; or (c) a statem ent containing an adm ission o f a ll the ingredients o f the offence with which its m aker is charged; o r (d) a statem ent containing affirm ative declarations in which incrim inating facts are adm itted from which > when taken alone or in conjunction with the other facts proved, an inference m ay reasonably be drawn that the person making the statem ent has com m itted an offence ; . " A confession statement qualifies to be so if the maker affirmatively admits to have committed the alleged offence. At page 119 of the record

Besides, part from this clouding the prosecution case with additional doubt, it entirely discredits the prosecution witnesses and fortifies the appellant's ■case that he did not murder the deceased. Had the trial Judge carefully scrutinized the purported cautioned statement vis- a- vis the oral testimonial account of PW2, PW3 and PW4, she should not have acted on the purported confession to convict the appellant. Instead she ought to have expunged the statement from the record. We as such expunge the purported statement from the record. With respect, in our considered view this is another instance of misapprehension of the quality of the evidence by the trial judge which resulted into wrong inferences and conclusions on the guilt of the appellant which necessitated our interference. We find this ground as well merited. From what we have endeavoured to say, the prosecution case in general was riddled with contradictions and inconsistencies in both oral and documentary accounts. It was thus incumbent on the trial court to resolve the inconsistencies and contradictions which went to the root of the matter and (See m oham ed s a i d m a t u la v s r e p u b l i c [1995] TLR). Failure to do so rendered the charge of murder was not proved against the appellant

beyond reasonable doubt and it was highly unsafe for the trial judge to ground the conviction. Notwithstanding that the appellant did not receive a fair trial; on account of the prosecution evidence is riddled with serious doubts which benefit the appellant, we are in agreement with both counsel that it is not in the interests of justice to order a retrial. In view of the aforesaid, we allow the appeal, quash the conviction and all proceedings and judgment of the trial court, set aside the sentence and order the immediate release of the appellant unless he is otherwise lawfully held. DATED at TABORA this 28th day of September, 2017. M. S. MBAROUK JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL X C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy oi-the Original. A. H. MsUMI DEPUTY REGISTRAR COURT OF APPEAL