Georgina d/o Masala vs Republic (Criminal Appeal No. 128 of 2014) [2014] TZCA 2157 (20 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CO RAM: RUTAKANGWA. J.A., BWANA, J.A.. And MAN PIA. J.A.^ CRIMINAL APPEAL NO. 128 OF 2014 GEORGINA D/O MASA L A ....................................................APPELLANT VERSUS THE REPUBLIC....... ........................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Sumbawanga) (Khadav, J/l dated the 7th day of March, 2013 in Criminal Sessions Case No. 46 of 2009 JUDGMENT OF THE COURT 15th & 20th May, 2014 RUTAKANGWA, J.A: The appellant stood charged before the High Court of Tanzania at Sumbawanga, with the murder of her husband, one Philipo s/o Kalimbikulu @ Nyerere (the deceased), on 1s t January, 2009. She denied the charge. After a full trial, however, she was found guilty as charged, convicted and sentenced to suffer death by hanging. Aggrieved by the conviction and sentence, she has preferred this first appeal through Mr. Simon Mwakolo, learned advocate. i

Mr. Mwakolo has lodged a memorandum of appeal containing three grounds of appeal. All the same, these can be justifiably condensed into two main grievances, namely:- (a) That the learned trial judge erred both on the facts and in law in predicating the conviction on uncorroborated circumstancial evidence, and (b) That the learned trial judge erred in law in disregarding the defence case. For an easy appreciation of the merits or otherwise of these grievances, we have found it appropriate to provide, first, this factual background leading to the prosecution of the appellant. The appellant and the deceased were living together as wife and husband in their own house at Chanji A within the municipality of Sumbawanga. They were sharing the house with one couple, namely, Eva Justine Kapufi (PW1) and her husband Ezideni Mligo (PW4) who were tenants therein. Under our local government administrative structure, the four were falling under the jurisdiction of one Frida Ndasi (PW2) who was the Street ("Mtaa") chairperson. At the trial of the appellant, PW1 Eva testified that on the evening of the material day, she happened to see the appellant sharpening a knife. She further claimed that she overheard the appellant, while sharpening the knife, saying to herself: "Ngoja aje huyu mbwa, nimkomeshe."

Freely translated, she meant to say: "Let this dog come back and I will settle scores with him or her." Thereafter, the appellant asked for a match box from PW1 Eva, which was made available to her. By that time the deceased was apparently not at home. When the deceased returned home at around 22.00 hrs, he was seen by PW1 Eva, holding in his hand a bottle of beer and with no shirt on a fact confirmed by PW2 Frida. The deceased asked to be given a matchbox but PW1 Eva told him that she had already given one to his wife. As soon they had parted company, PW1 Eva heard what she described as a "kishindo" or bang, and an agonizing cry to the effect: "Mama Noe unaniua" [Mama Noe you are killing me]. PW1 Eva rushed to her room. Soon thereafter, the appellant entered PW1 Eva's room telling her that "her husband had been attacked by some people" and had fallen in the living room. PW1 Eva noted blood stains on the appellant's clothes. PW1 Eva and PW4 Ezideni rushed to the appellant's room. There they found the deceased lying on the floor allegedly bleeding profusely. PW4 Ezideni immediately went to inform their neighbour, PW3 Chande Kabuta, and the incident was reported to PW2 Frida. PW2 Frida went to the scene of the crime. Suspecting a foul game, PW2 Frida directed that the matter be reported to the police, and the appellant was taken to the police. 3

The following day, PW6 No. E 9837 D /Sgt. Andrew visited the scene of the crime. He testified to have seen blood drops on the floor of the house and that he drew a sketch map of the scene, which he tendered in evidence, without any objection, as exhibit P2. PW6 D/Sgt. Andrew further testified that during the course of the investigations, he was informed by one Neema Masala that she had taken the blood stained clothes of the appellant. Neema, who testified as PW5, is the daughter of the appellant's brother. We have gathered from her evidence, however, that contrary to the evidence of PW6 D/Sgt. Andrew, PW5 Neema testified that when she went to the deceased home on 2/1/2009, she met PW1 Eva and the deceased's sister and that it was PW1 Eva who showed her the appellant's clothes. She accordingly took them for washing:- "5o that they won't get damaged\ and not to destroy evidence." The post-mortem examination conducted by a doctor, having established the cause of death to be "severe hemorrhage" due to a stab wound penetrating to the heart, the appellant was charged accordingly. In her evidence , the appellant conceded the death of her husband to have been from "unnatural causes" due to stabbing by a knife. Accounting for this death, the appellant told the trial High Court that on "the material day, at about 22.00 hrs, she was inside her house when she heard a heavy bang on the door. "She rushed to the door only find her "husband lying down" at the door. She pulled him inside, and as he could not talk, she called PW4 Ezedeni. Together with him and PW1 Eva, they went to report the incident to PW2 Frida, returned to their home to find her

husband already dead, and thereafter they went to the police station and she has never been at her home again. She disputed the incriminating evidence of PW1 Eva calling her (PW1) a liar. She confirmed, all the same, the evidence of PW1 Eva to the effect that her clothes had blood stains which came from her "injured husband". She also claimed that PW1 Eva must have lied against her because she was having an affair with the deceased. Two assessors aided the judge at the appellant's trial. Both of them were agreed-that the appellant was not guilty, as the deceased might have been stabbed by another person somewhere else or as he entered his room and that person escape unnoticed. The learned trial disagreed. In her judgment, the learned judge was of the firm view, with which we are in agreement, that the violent death of the deceased not being disputed, the only issue was the identity of the murderer. She also correctly found that the prosecution case against the appellant as the murderer was purely circumstantial, as nobody eyewitnessed the stabbing to death of the deceased. On this she was of the view that: "in some cases, reliability o f circumstantial evidence vis-a-vis direct evidence cannot be disputed. For instance, in the case o f Samson Daniel v. R., (1934) I EACA 46 it was clearly held that circumstantial evidence may be not only as 5

conclusive but even more conclusive than eye-witness . "(Emphasis supplied). We share her certitude on this. She was also alive to settled law that "circumstantial evidence is that evidence not adduced by an eye witness to the facts to be proved, but by bearing upon the facts or other and subsidiary facts which are relied upon as inconsistent with result other than the truth of the principal facts. It is a chain of events leading to an inference or presumption of the existence of the principal fact," she observed. Applying the above principle of law to the facts of the case before her, she reasoned thus:- "Regard/ess o f the credibility o f PW1 ... the chain link as proposed by the prosecution is that the accused was seen sharpening the knife, while uttering words suggesting the motive. Then the deceased was seen entering his house while in a good health ; but shortly thereafter he was heard crying that the accused was killing him. Then a bang o f a falling object was heard, and the deceased was actually found dead shortly thereafter, while the accused was found with blood stains all over her clothes . On the other hand, defence doubts the chain link so claimed by

the prosecution. In that, it is said that no one had seen the accused either sharpening the knife or had heard her uttering any aggressive words against any "dog". Furthermore, it was said that, there was no knife that was brought to court to substantiate its existence. On having blood on the accused person's clothes, it was said that, that was justified by the accused when she told the court that she was helping her husband upon being stabbed by an unknown person, hence blood- stains on - her _ clothes" [emphasis is ours]. We have been forced to provide the emphasis because no single witness so graphically testified. In view of this, the learned trial judge found that the prosecution case depended entirely on the credibility of PW1 Eva. We agree. On this she was satisfied that the witness was a credible one. PW1 Eva's evidence supported as it was by that of PW2, she held, established an unbroken chain linking the appellant with the stabbing of the deceased. She rejected the evidence of the appellant going to discredit PW1 Eva, claiming that the latter lied against her as she had a love affair with the appellant. Her assigned reason was that, that was an afterthought because if that were the truth, the defence would not have failed to cross examine her (PW1) on it. 7

After addressing herself to the provisions of section 143 of the Evidence Act (on the number of witnesses), and the decisions of this Court in Yohanis Msigwa v. R., [1990] TLR 150, and Mathias Bundala V R., Criminal Appeal No. 62 of 2004 (unreported), she found herself constrained to differ with the two assessors, and convicted the appellant accordingly. Mr. Mwakolo appeared before us to prosecute the appeal. For the respondent Republic Ms. Scholastica Lugongo, learned State Attorney, appeared and did not support the conviction of the appellant. It was the contention of both counsel that the prosecution evidence did not provide inculpatory facts which irresistibly led to the only one conclusion that it was only the appellant who could have inflicted the fatal stab wound. To substantiate tfieir position, they cited these unchallenged facts- (i) Nobody saw or witnessed the deceased being stabbed; (ii) If PW1 Eva had seen the appellant sharpen a knife and telling herself that she would settle scores with that "dog", she would have so told PW2, PW3, PW4, PW5 and PW6 immediately after the incident. She would not have kept it as a secret for a good four years. (iii) There was no light at the scene of the crime and as such the possibility of the deceased being stabbed by an unknown person or persons was not ruled out, more so given the admitted fact that he returned home with no shirt on, an 8

indication that he might have been involved in a quarrel or fight where he had been drinking. (iv) Even assuming that the appellant had sworn to settle scores with that "dog" there was no scintilla of evidence to suggest, let alone to prove, that the said "dog" was the deceased. (v) The appellant's clothes which had blood stains, whose presence the appellant had satisfactorily accounted for, were neither taken from the scene of the crime nor washed by PW5 Neema on the instructions of the appellant who was in police custody already, but as is apparent from the evidence of PW5 Neema, it was at the prompting of PW1 Eva. With these facts in mind, it was counsel's strong submission that had the learned trial judge taken time to deliberate on them, she would not have rejected the defence evidence and readily taken PW1 Eva to be a credible witness and predicate a conviction for murder on her evidence. They accordingly urged us to allow this appeal, quash the conviction and set aside the death sentence. In disposing of this appeal we have found just to observe that we have found the submission of both counsel paralysingly compelling. It is indeed inconceivable that PW1 Eva would have witnessed all that the testified on about the appellant and yet fail to warn the deceased when she allegedly talked with him upon his arrival, and/or narrate so to PW2, PW3, PW4, PW5 and PW6 subsequently. That she failed to do leads to only one irresistible inference. She was lying. We have equally found it

strange and indeed implausible that the appellant who, going by the evidence on record, has no history of insanity would have planned' to murder her husband and then proceed to exhibit her intention and the murder weapon so openly to PW1 Eva, even if she was not suspecting her of having an affair with the deceased. In our respectful opinion, had the learned trial judge considered these two glaring facts, she would have received the evidence of PW1 Eva with grain of salt and given the appellant the benefit of doubt, in line with the concurent opinion of the two assessors. Admittedly, the prosecution case rested on the evidence of PW1 Eva and indeed the learned trial judge grounded the conviction solely on that evidence. Apart from the questionable piece of evidence referred to above, PW1 Eva tellingly told the trial High Court that: " We went to report the matter to our village chairman. She advised us to report the matter to the police. We went back to the scene o f crime. We found the place cleaned up and the wound on the deceased washed out "[Emphasis is ours]. We have not failed to note that when PW1 Eva said "we went to report," she meant herself, her husband (PW4), PW3 Chande and the appellant. Despite this fact, she had the effrontery and/or audacity of telling the trial court, shortly thereafter that: 10

"My understanding is that it was the accused who stabbed the deceased hence causing death to him. I also believe that the accused tried to destroy evidence by cleaning the blood." Unfortunately, the learned trial judge bought this story, without resolving these nagging and pertinent questions: how could the appellant have performed this unimaginable feat while they left with her for PW2 Frida's home and returned with her? Why was PW1 Eva frantically trying to fix the liability for the murder of the deceased on the appellant against the physical realities, while she was the last person to be and talk with the deceased while alive? Why did she run into her room after hearing a "bang" and the deceased cry out "Mama Noe unaniua?" instead of rushing to the aid of the deceased ? Why did she not tell her husband what she had heard, after he had taken his bath, until the appellant went to tell them what had befell her husband? Don't these unanswered questions point unerringly to her as a prime suspect acting with unknown confederates who might have cleaned down the scene of the crime of the pool of blood while they had gone with the appellant to PW2 Frida's residence? In our respectful opinion, this possibility cannot be ruled out. It goes without saying, therefore, that the evidence relied on by the learned trial judge to convict the appellant was capable of more than one interpretation. It did not, as a result, in our considered view, prove the guilt of the appellant beyond reasonable doubt. 11

All said and done, we agree with both Mr. Mwakolo and Ms. Lugongo, that the circumstantial evidence relied on by the learned trial judge, did not unerringly point to the guilt of the appellant. The deceased might have been murdered by some other person or persons unknown or even known to PW1 Eva, hence her belated efforts to implicate the appellant by her patent lies. In fine, we allow the appeal by quashing the appellant's conviction and setting aside the death sentence. We order the immediate release of the appellant unless she is otherwise lawfully detained. DATED at MBEYA this 16th day of May 2014. E.M.K. RUTAKANGWA JUSTICE OF APPEAL S.J. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. F.J. KABWE DEPUTY REGISTRAR COURT OF APPEAL 12