Said Mshangama @ Senga vs Republic (Criminal Appeal No. 8 of 2014) [2014] TZCA 2379 (2 December 2014)

IN THE COURT OF APPEAL OF TANZANIA ATMTWARA CRIMINAL APPEAL NO. 8 OF 2014 (CORAM: BWANA, J.A., ORIYO, J.A., And KAIJAGE, J.A.) SAID MSHANGAMA @ SE NGA .. . . . . . .. .. . .. .. . . .. . . . . . . .. . . . . ..... APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mtwara) (Mzuna, J.) dated the 9 th day of October, 2013 . in Criminal Session Case No. 9 of 2013 .....••... JUDGMENT OF THE COURT 1~~~~ 1 st & 2 nd December, 2014 ~ ~ ~ ~ - BWANA J.A.: ') L -...lv"v. "V"V. ~~ ~~~ ~~ ~ ~ V',.- ~"V'-~~ The appellant, Saidi Mshangama @ Senga, was convicted by the High Court of Tanzania at Mtwara, of the offence of murder, contrary to· Section 196 of the Penal Code, Cap 16. He was sentenced to the mandatory sentence of death by hanging. Aggrieved by that conviction and sentence, he filed this appeal. Before us the appellant was represented by Mr. Moses Mkapa, learned advocate, while the respondent Republic was represented by Mr. Hashim Ngole, learned Senior State Attorney. In his Memorandum of Appeal as well as Supplementary Memorandum of Appeal several 1

It ( \ grounds were raised which in essence, crystalise to the following as summarised by his defence counsel:-

1. That the trial court erred in law and fact by failure to consider that the circumstantial evidence was not enough to prove the case beyond reasonable doubt against the appellant.
2. That the trial court erred in law and fact by admitting exh. P2 and P3 without considering the fact that the said exhibits were procured by unlawful procedure.
3. That the trial court erred in law and fact by convicting the appellant basing on contradictory evidence of PW1 and PW3 whose credibility was highly doubted. Mr. Hashimu Ngole, learned Senior State Attorney for the Republic did support both the conviction and sentence. In convicting the appellant, the High Court relied on the following facts, as summarised. In the night of 23 August 2011 at about 3.oo am, at Mbwemkuru village of Nachingwea District, PW1 heard a voice shouting thus: "Ninakufa mama nakufa, Senga ananiua'~ Those words 2

were repeated twice followed by a dead silence. PW1 went to awaken PW3, another neighbour. He told PW3 what he had heard and that those words were being uttered from the direction of the appellant's house, another neighbour of theirs. Both PWl and PW3 went to the- appellant's house. Since- it was dark, they did not see anything. They decided to keep vigilance around that house until day break. At dawn they saw some ''dragging marks - ''miburuzo" originating from the back door of the appellant's house towards a trench, some 15 metres away. At the trench the deceased body was found. It had several cut wounds on several parts of his body. Some traces of blood were also seen along the ''miburuzo" from the house to the trench. When PW1 and PW3 arrived at the appellant's house the appellant was not there. Only his wife was there. When asked about the whereabouts of her husband, she said he has already left for work. When further questioned, she started crying. Suspicious that the appellant may have gone to work so early in the morning before day break, PW1 went to the site. He, indeed, found the appellant at that place of work. He was arrested. 3

Back at tl"le--appellant's -house a-searcb~was conducted __ by e__w2 .in __ the company of other people. They recovered an axe (exh. P2) which had blood stains. A post-mortem report (exh. Pl) revealed that the cause of death was due to excessive bleeding. In his defence, the appellant made a general denial. He averred that on the material morning he left for work around 5.40 am and reported at work at 6.00. He disclaimed possession of the axe (exh. P2) and doubted if it was truly found in his house as he was not present when the alleged search was conducted in his house. He did not dispute the fact that he was the only person in the village who went by the name of Senga. In convicting the appellant the trial court relied mainly on the evidence of:- • The dying declaration naming Senga as the one who killed the deceased. • The recovery of exh. P2 inside the appellant's house, with stains of blood on it. 4

• The "drugging marks" with blood stains along the way to where the deceased's body was found - about 15 metres away from the back door of the appellant's house. • The post-mortem medical report. The trial judge was convinced that the chain of circumstantial evidence was unbroken hence linking the appellant with the murder. It is settled law that on first appeal, the court is entitled to re- evaluate the evidence and come to its own conclusions, the misdirections, if any, notwithstanding (See: Peter Sunday Post (1958) IEA 424; Deogratian Nicholaus @ leshi and Another v. The Republic, Criminal appeal No. 211 of 2010 - unreported). In the case at hand, having examined the evidence on record, we are settled in our minds that the appeal may be determined by considering two main points namely:- • Circumstantial Evidence available. • Summing up to Assessors. Although Mr. Ngole invited us to agree with him that the evidence before the trial court was both direct and circumstantial, we hold that it was the latter. The only direct evidence Mr. Ngole believes to be present is that PW1 heard the call for help and that Senga was killing the 5

deceased. But, we hold that the said declaration forms part of the circumstantial evidence that the trial court relied upon. Briefly put, the following pieces of evidence form the necessary circumstances implicating the appellant with the offence. • The dying declaration that "Senga was killing me ... " • Following the making of the said dying declaration, both PWl and PW3 went to the appellant's house. He was not there but his wife was present. When interrogated, she started crying. • That while PWl says he heard of the shouting of "Ninakufa mama nakufa, Senga ananiua ... " around 3.00 am, PW3 says PWl came to wake him up between 3 and 4.oo am. When asked of the whereabouts of the appellant, his wife told PWl and PW3 that the appellant has already left for work. • The drag marks originating from the back door of the appellant's house to a trench, some 15 metres away where the body of the deceased was found. • The search inside the appellant's house led to the recovery of the axe (exh. P2) with blood stains on it. 6

The five points above may be said to form circumstantial evidence. The law on the subject is well settled. It is trite law that on circumstantial evidence, the court must, before deciding on a· conviction, find that the inculpatory facts are incompatible with the- innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilty. (See: Taper v. Republic, (1952) AC 480; Elisha Ndatange v. Republic, Criminal appeal No. 51 of 199; luma Mohamed v. Director of Public Prosecutions, Criminal appeal No. 243 of 2011 -( both unreported). In Simon Msoke v. Republic (1958) EA 715 at 718, it was stated thus:- ''In a case depending conclusively upon circumstantial evidence, the court must before deciding upon conviction, find that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty. .. " Similar views have been expressed in several decisions of this Court. In the much cited case of Chandrakant Joshbhai Patel v. Republic, Criminal Appeal No. 13 of 1998 (unreported) the Court held:- 7

"what has to be emphasized, however, is that the alternative possibility must not be fanciful. It must be plausible. Doubt about the guilt of an accused person can count only if such doubt is reasonable. The circumstances must also be looked at and considered, In their totality ... "(Emphasis provided}. In the instant appeal we are of the settled mind that the five points forming the circumstances leading to the commission of the offence, do not form an unbroken chain link that irresistibly implicate the appellant with the murder of the deceased. This is so, in our view, because of the following:- •. The house where the killing may have taken place had two occupants - the appellant and his wife. Either one of them could have committed the offence. Prudence~ therefore, demands that both the appellant and his wife should have been interrogated by the investigating officer so as to rule out the possibility of charging the wrong person with the offence. There is no evidence that it was done. • It is not in dispute that during the search of the house, neither the appellant nor the wife were present. The reason advanced by Mr. 8

Ngole that the said search conducted- was an-emergency one, thus - in terms of Section 42 of the Criminal Procedure Act, Cap 20. That it was not conducted under section 38 of the said Cap 20. We strongly disagree with Mr. Ngole as the situation prevailing then did not constitute an emergency of any kind. The search and all that was recovered is strongly disputed by the appellant. We agree with him that since the procedure was not adhered to, the evidence relating thereto is vitiated and should, as we accordingly do, be expunged from the record. All the above considered, it is evident that strands of circumstances cumulatively do not link the appellant, beyond reasonable doubt, with the offence of murder. The Court also raised suo motu the issue as to whether the assessors were adequately addressed particularly on the vital point of law that evidence of dying declaration must be corroborated if the trial court has to ground a conviction relying thereto. As provided under the law, a trial of murder before the High Court must be with the aid of assessors. One of the basic procedures is that the trial judge must adequately sum up to the said assessors before recording their opinions. Where there is inadequate summing up, non- 9

direction or misdirection on such a vital point of law to assessors, it is deemed to be a trial without the aid of assessors and renders the trial a nullity. (See Rashid Ally v. The republic, Criminal Appeal No. 279 of 2010 - unreported). In Turubuzya Bituro v. The Republic (1982) TLR 204, the Court held:- ''Since we accept the principle in Bharat's case as being sensible and correct, it must follow that in a criminal trial in the High court where assessors are misdirected on a vital point, such trial cannot be construed to be a trial with the aid of assessors. The position would be the same where there is non direction to the assessors on a vital point ••• "(Emphasis provided). (See: The Republic v. Crospery Ntagalinda @ Koro, Criminal Appeal No. 73 of 2014 - unreported). As already intimated, the trial judge did not, in this case, sum up adequately to the assessors on a vital point of law- that a dying declaration needs corroboration. We consider therefore, the trial to have been a nullity. 10

In the circumstances of our finding on this second point ( of inadequate summing up to assessors) it would be proper to order for a re-trial. However, taking into consideration our earlier discourse on circumstantial evidence above, we hold that this is a fit case. whereby the entire appeal should be allowed. Accordingly, we allow the appeal, quash the conviction and set aside the sentence of death by hanging imposed by the trial court. We further order that unless the appellant is otherwise lawfully held, he should be set free forthwith. DATED at M1WARA this 2 nd day of December, 2014 SJ. BWANA JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL S.S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. P'J1!':r:r,IKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 11