Zefelinus Kumb.@ Philimon vs Republic (Criminal Appeal No. 243 of 2013) [2014] TZCA 2197 (14 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CO RAM: RUTAKANGWA. J.A.. BWANA. J.A.. And MAN PI A. J.A.l CRIMINAL APPEAL NO. 243 OF 2013 ZEFELINUS KUMB. @ PHILIMON .................................................. APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Sumbawanga) ( Khadav. J.^ dated the 20th day of April, 2012 in Criminal Sessions Case No. 11 of 2007 JUDGMENT OF THE COURT 8th & 14th May, 2014 RUTAKANGWA. J.A.: The appellant was convicted by the High Court (Khaday, J.) sitting at Sumbawanga of the murder of his wife Bonoza d/o Paschal. He was sentenced to suffer death by hanging. Aggrieved by the conviction and sentence, he has preferred this appeal through Mr. Justinian Mushokorwa, learned advocate. Mr. Mushokorwa lodged a memorandum of appeal containing three grounds of appeal challenging the propriety of the trial High Court's judgment. In order to appreciate the gravity or otherwise of

these grievances, it is opportune to give, first, the facts leading to the prosecution of the appellant. As indicated above, the appellant was the husband of the deceased Bonoza Paschal. Their marriage was blessed with a number of children, among whom was Furaha Julius who testified as PW1 at the trial of the appellant, and an infant who was only two (2) weeks old when Bonoza died on 5th March, 2006. According to PW1 Furaha, her mother prior to her death had, for over one year, been suffering from chest problems which at times caused her to vomit blood. The deceased, according to PW1 Furaha, had previously been advised by a nurse to go to hospital for treatment but the deceased had ignored the advice. PW1 Furaha further testified that her parents had all along being living together happily without any visible misunderstandings. This was confirmed by PW2 Gervas Sigareti, the deceased's father, who said:- "My daughter never complained to me against the accused person over anything. I do not have any complaint over the behavior o f the accused person." Consistent with this avowed matrimonial harmony, the appellant went together with the deceased and their children, before March, 5th 2006, to stay at their shamba situated outside their home village during the farming season. In the early hours of 5th March, 2006, the deceased began feeling unwell. The appellant awakened the children who were all sleeping

in the same house but in a different room. PW1 Furaha found their mother complaining of chest and heart problems. She was coughing and breathing with great difficulties. The deceased requested her children to pour water over body which they did and gave her a cup of water to drink. She showed no sign of improvement and the appellant decided to rush to the village to seek assistance accompanied by PW1 Furaha's "young sibling." When they returned to the shamba later accompanied by DW2 Didas Philemon, they found Bonoza already dead. PW1 Furaha categorically stated that her mother died a natural death. The death of the deceased was immediately announced to their villagemates including her relatives who lived at a different village. As the death of the deceased appeared to all objective mourners, to be from natural causes, the body was ferried back from the shamba to the village and burial arrangements started in earnest. According to PW3 Vitus Pandashalo, who was among the villagers who returned the body to the village, the appellant participated in carrying the body back to the village. It was his evidence also that as they were in the burial processes, the appellant left abruptly and ran towards a nearby forest. Some people pursued him and when they got to him, they found him "holding a string crafted from 'miyombo' tree." They thought he wanted to commit suicide. They took him back to his home. Out of suspicion, the people reported the matter to the police.

On 7th March, 2008, two days after the death of Bonoza, PW5 Insp. Mwalwajo arrived at the village. He was accompanied by PW4 Dr. Michael Mwakajinga. PW4 Dr. Mwakajinga, who identified himself as a form IV leaver holding a "diploma in medicine" and an Assistant Medical Officer, carried out a post-mortem examination on the deceased in the absence of the appellant although he was around. His opinion was that the deceased had died of asphyxia due to neck strangulation. On the basis of this opinion, the appellant was arrested and charged accordingly. The appellant in his sworn evidence, which was supported in material particulars by DW2 Didas Philemon, denied murdering his wife. He claimed that his wife passed away while he had gone to the village to seek assistance. In short, the relevant part of his evidence tallied with that of PW1 Furaha. The trial was conducted with the aid of three assessors. Two of them returned a verdict of not guilty. The concise and reasoned opinion of the 1s t assessor was follows:- 7 am o f the opinion that the accused is not guilty. No one saw the accused murdering the deceased. Secondly PW1 supported the defence case-the deceased was sick even prior to the event. PW1 could have seen the accused strangling the deceased."

While totally concurring with the above opinion, the second assessor went further and tellingly said: "The fact that the accused was found attempting suicide is not a proof that he had killed his wife. It may be only confusion on his part for being bereaved ." The third assessor was of a different opinion. He believed that the appellant was guilty as: "...PW1 could not have seen as to what happened between the accused and the deceased. Furthermore, I find the accused tried to commit suicide after committing an offence... I am convinced the deceased had protruded eyes. This cannot be due to natural cause but asphyxia due to neck strangulation." The learned trial judge fell for the opinion of the third assessor hook, line and sinker. Her reasoning leading to the finding that the appellant murdered the deceased went thus:- "The qualification o f the PW4 as expert in medical field was not questioned at all. The question is why the court should disbelieve him that the deceased died o f asphyxia. There is no suggestion that PW4 had any grudge against the accused to cause him

to lie that the accused was found with broken neck. There is no evidence from PW1 and DW1 that the deceased had fallen down to cause possible breakage (sic) o f neck prior to her death. I am therefore convinced and hereby hold that the death of Bonoza Paskali was due to asphyxia due to neck strangulation. The next significant question is who strangled the deceased. Indeed no one saw and testified to have seen the accused strangling the deceased... one o f the assessors said that had the accused strangled, PW1 could have seen him. To be fair to the justice (sic) I find that to claim that PW1 could have seen the accused strangling the deceased at that period of time is unfair to the child. In any case, it depends on how the incident occurred. In any case, if awake, could have heard only commotion or murmuring of the deceased, and certainly not to see them. There was no light aid to have provided vision for the children to see what was happening to her parents at that late hours of night I find circumstantial evidence sufficient to conclude that it must be the accused person, and nobody else who murdered the deceased. "(Emphasis is ours).

We have been compelled to provide the emphasis in the above extract as an indication of our respectful disagreement with that assertion by the learned trial judge. This is because we have found no iota of evidence to bear her out on this. On the contrary, every indication is that there was light; otherwise the deceased could not have been given water to drink, the children would not have attended their mother, etc, in total darkness. To us, this is a clear indication that the evidence of PW1 Furaha was, unfortunately, given a cursory treatment. That said, we should now hasten to point out that, the verdict of guilty was primarily predicated on the opinion of PW4 Dr. Mwakajinga, hence the first and crucial ground of appeal in this appeal. In the first ground of appeal Mr. Mushokorwa is complaining that the learned trial judge erred in law and fact in accepting and acting without any reserve on the opinion evidence of PW4 Dr. Mwakajinga in utter disregard of evidence of PW1 Furaha, PW2 Gervas and PW3 Vitus, who never saw "the alleged tell-tales of the alleged abnormal features on the body of the deceased." On this complaint, Mr. Mushokorwa had the full support of the respondent Republic through Mr. Stambuli Ahmed, learned State Attorney, who supported the appeal. After dispassionately reading the prosecution evidence, leave alone the defence case, and the law on expert opinion, we have respectfully found ourselves in full agreement with the contentions of both learned

counsel. By the words "alleged tell-tales of the alleged abnormal features on body of the deceased," Mr. Mushokorwa had in mind the claims, which were not supported by any other witness, by PW4 Dr. Mwakajinga, that when he examined the body, two clear days after the death, he saw:- (i) blood oozing out of the nose; (ii) both eyes had protruded to the sides, (iii) defecation in the anal region, and (iv) a broken neck. It is these findings which led him to the conclusion that the deceased had died of asphyxia due to neck strangulation. It was the strong contention of both Mr. Mushokorwa and Mr. Ahmed that these findings are inconsistent with the rest of the evidence on record. We agree. PW1 Furaha, who was with her mother until the point she passed away, never saw the deceased being strangled by anybody, let alone the appellant. Indeed, she categorically told the trial court that her mother "died a natural death." By then she was 18 years of age and she knew what she was talking about. As we have already sufficiently demonstrated above, the deceased met her death at their farm house which was located about 2Vi kms. from their home village. The body was brought home for burial. Among the people who participated in this noble but saddening exercise and duty, was PW3 Vitus. PW2 Gervas identified the body of the deceased to PW4 Dr. Mwakajinga, in the presence of one E. Kifullya and E 7523 D/Sgt

Osiana and E D/C Osiana (?) all of whom never testified, but in the absence of the appellant even though he was around. PW1 Furaha, PW2 Gervas and PW3 Vitus never saw the broken neck, the protruding eyes, or the faeces in the anal area of the deceased. One nagging and very pertinent question which the evidence of PW4 Dr. Mwakajinga does not provide an answer and the learned trial judge never addressed her attention to, is this: how could have the body been transferred from the farm house with faeces and/or be nearly buried without being cleansed? This does not add given the fact that up to the point the appellant left, for various reasons (i.e. to fetch a feeding bottle for the two week baby which was crying (per appellant) or due to confusion for loss of his loved one (per assessor and PW3)everybody believed that the deceased had died a natural death. The evidence of PW3 Gervas is very clear on this. He said:- "At first, I believed my child met a natural death." He appears to have had a change of mind after it was reported to him that he had attempted to commit suicide. In view of this, it might not be outlandish on our part to think aloud that he might have had a hand to play in the bizarre findings of the so-called expert who agreed to carry out the post-mortem examination on the deceased without involving the appellant. We think this discourse justifies the complaint of both counsel in this appeal to the effect that the learned trial judge erred on the facts to accept without any reservations the findings of PW4 Dr. Mwakajinga simply because "PW4 as expert in medical field was not questioned at all." In our

considered opinion, the learned trial judge had a duty to reconcile the evidence of PW4 Dr. Mwakajinga on one side and that of PW1 Furaha, PW2 Gervas, PW3 Vitus as well as the defence on the other side. This in our respectful opinion was not done at all. On the aspect of law, we are similarly in agreement with the sentiments of both counsel. It is settled law that the duty of all experts is to furnish the court with the necessary scientific criteria for testing the accuracy of their conclusion so as to enable the court to form its own independent judgment by the application of these criteria to the facts proven in evidence: see, C.D. de Souza v. B. R. Sharma [1953] K.L.R., Davie v. Edinburgh Magistrates, 1953 S.C.34, R.v Kerstin Cameron [2003] T.L.R., 84, etc. It is not within the expert's competence to imagine facts to fit his desired conclusions. As was held by the Supreme Court of India in Malay Kumar Ganguly v. Dr. Sukumar Murkherjee & Others, AIR 2010 SCC 1007: "The scientific opinion evidence, if intelligible, convincing and tested becomes a factor for consideration along with other evidence of the case. "[Emphasis is ours]. In this case, unfortunately, the opinion evidence of PW4 Dr. Mwakajinga was not validated by testing it against the rest of the undoubted evidence on record.

established doubtful opinion evidence of PW4 Dr. Mwakajinga. We accordingly allow the first ground of appeal which disposes of the entire appeal. The conviction of the appellant for the murder of Bonoza d/o Paschal, therefore, is hereby quashed and set aside as well as the death sentence imposed on him. The appellant is to be released forthwith from prison unless he is otherwise lawfully held. DATED at MBEYA this 13th 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.