Augustino Lodaru vs Republic (Criminal Appeal No. 90 of 2013) [2014] TZCA 2170 (17 March 2014)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: BWANA. J.A: MANDIA. 3.A: And ORIYO. J.A.^ CRIMINAL APPEAL NO. 90 OF 2013 AUGUSTINO LODARU .................................. APPELLANT VERSUS THE REPUBLIC....................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) ( Nverere. 3 .^ Dated the 20th day of February, 2013 in Criminal Sessions No. 60 of 2003 3UDGMENT OF THE COURT DATE 10t h & 17th March, 2014 BWANA. J.A.: The appellant, Augustino Lodaru, was charged with and convicted of murder in Criminal Sessions case No. 60 of 2003. He was sentenced to the mandatory punishment of death by hanging. It was the prosecution case that on 24 December 2011 at Sasi village of Arumeru District, the appellant murdered Leah David Thobias, a girl aged 11 years. Eight (8) prosecution witnesses testified while the appellant gave his defence on oath. He called one defence witness, Michael Soori, his young brother.

Before us the appellant was represented by Mr. Modest Akida, learned advocate, while Miss Sabina Silayo, learned State Attorney, represented the respondent Republic. Briefly, the facts of the case, as discerned from the record, are as follows. On Christmas eve, that is, on 24 December, 2001, around 9.00 am, four children went out to get Christmas trees. One of the four and the youngest, was Leah Thobias, aged 11 then. The other three were to testify, 12 years later, as PW1, PW2 and PW3. The four children had to cross the appellant's farm before reaching their destination. At that time the appellant was at his farm armed with a machete. He prevented the children from crossing his farm and chased them away. The said children ran but the appellant managed to get hold of Leah, the youngest. The other three asked the appellant for his leniency and release her but to no avail. They then decided to rush home and report the matter to PW4 and PW5 who, in the company of PW3, rushed to the scene where they had left Leah held up by the appellant. They came around calling for Leah, only to be met be the appellant who responded to them: "m naita Leah, Leah, n in i nendeni m toni m kachukue m aiti yenu". Upon hearing those words, they all rushed to the river as directed

by the appellant where they indeed found Leah's body floating in the shallow water, already dead. The medical examination conducted on the body of Leah and its report tendered in court during trial in compliance with Section 240 (3) of the Criminal Procedure Act (the CPA), revealed the cause of death as being "fracture dislocation of the neck C2". In his sworn defence statement, the appellant denied to have committed the offence. He denied, as well, to have met the children on the fateful day. He admitted, however, to have found PW3 who was about to cut a Christmas tree from his farm and ordered him to stop, an order PW3 obeyed. He further admitted to have seen three girls running about near his farm but could not tell who they were and whether they were with PW3. About half an hour later, it was the appellant's averment during trial, that people surrounded his house, furious about the death of Leah. The appellant was rescued by the police who arrested him and took him to Usa River Police Station. His brother DW2, narrated more or less the same story. In his memorandum of appeal, the appellant had raised five grounds but when the appeal came up for hearing, his counsel, Mr. Akida,

abandoned grounds 2,3 and 5. We are left, therefore with grounds 1 and 4 which provide thus- Grounds 1: That the conviction was based on exhibits (medical report and drawn sketch map) which were questionable both in law and in fact. Grounds 4: That the judgment was premised on circumstantial and hearsay evidence. Mr. Akida, adopted, as well a written submission in support of the appeal, filed earlier. On her part, Ms. Sabina Silayo, supported the conviction and submitted at great length why the conviction should be upheld by this Court. We shall consider both counsels' views shortly. We do agree with the trial Judge, that this appeal may be determined by considering the following aspects of the law in relation to the facts of the case. •The doctrine of "the last person to be seen with the deceased". • The circumstantial evidence.

• The credibility of witnesses. • Contradictions/inconsistencies in the evidence of the prosecution witnesses. • Whether the sketch map Exh. PI and the medical report, Exh. P2 were properly tendered in Court. In disposing of this appeal we find it apposite to start by considering firstly, the issue of the cause of death. We do agree with the trial judge that Leah Tobias met her death between the time she was left with the appellant, the latter holding her (after chasing them) and subsequently when PW3, pw4 and PW5 found her floating in the shallow river waters, after the appellant's directions as to where to find the body. In a space of roughly thirty minutes, Leah who had been seen last alive held up by the appellant, was dead. The cause of death is said (by the medical report) to be "fracture dislocation o f the neck C2f with her neck " twisting/rotating At the time of discovery of the body, the appellant was no longer with Leah and he offered no plausible explanation as to what may have befallen her between the time PW1, PW2 and PW3 left her held up by him and the time PW3, PW4 and PW5 found her dead in a river. There is no evidence that a third person may have killed Leah. Following the utterances by the appellant, it is evident that he knew what had befallen

Leah and where her body could be recovered. Adopting the views of the Court in Makungire Mtani v. Republic (1983) TLR 179 there is proof beyond reasonable doubt that the appellant's utterance sufficiently established the case against him namely that he was the one who murdered Leah by causing her a fracture dislocation of the neck. Since the medical report, Exh. P2, established that there was no fluid in the lungs and no extra fluid in the stomach, the possibility that Leah may have died from drowning is not there. Instead, strangulation was the cause. In Armand Guehi versus Republic, Criminal Appeal No 22 of 2010. (unreported), this Court held:- "the strength or otherwise o f the doctrine (of the last person to be seen alive with the deceased) depends solely on the explanation which may be given by the person to displace the presumption that he may be the culprit behind the death o f such person..." In Mathayo Mwalimu and Another versus Republic, Criminal Appeal No. 147 of 2008 (unreported) stated

"... where a person is alleged to have been the last to be seen with the deceased, in the absence o f the plausible explanation to explain away the circumstances leading to the death, he/she will be presumed to be the killer..." (See also: Richard Matangula versus Republic (1992) TLR 5). In the instant case, the appellant did not give any plausible explanation as to how he parted with Leah. In our settled view therefore, he cannot escape responsibility for the murder of Leah, all the other factors, supra, considered. The other point for consideration is whether there is sufficient evidence to "implicate the appellant. The trial High Court as well as both counsel before us held the view that the evidence before the court was circumstancial. Before we consider the legal aspects of circumstantial evidence we are, by parity of views, of the opinion that given the uncontroverted evidence adduced in court, we unreservedly subscribe to the views that some element of direct evidence did exist. This is particularly from the utterance by the appellant, informing PW3, PW4 and

PW5 who were searching for Leah, to go to the river and collect her dead body. The said witnesses acted upon that information and indeed recovered the dead body of Leah. To us, it appears to be direct evidence which implicated the appellant as he knew that Leah was dead and from where her body could be recovered. We now turn to the issue of circumstantial evidence, upon which the trial judge relied in grounding a conviction. We should note at the outset that it is settled law that a court of law may ground a conviction based solely on circumstantial evidence. This is so where the said evidence irresistiblylead to the inference that it was the appellant and nobody else whocommitted the offence. Such evidence must, also, be incapable of more than one interpretation and the chain linking such evidence must be unbroken. In Julius Justine and Others versus Republic, Criminal Appeal No. 155 of 2005 (unreported) the Court held: "...the circumstances from which an inference o f guilt is sought to be drawn , must be cogently and firmly established and that those circumstances should be o f a definite tendency unerringly pointing towards the guilt o f the

accused, and that circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and no one else..." There are other factors that have to be considered before grounding conviction based on circumstantial evidence. Such factors include, but not limited, to the following. • The inculpatory facts are inconsistent with the innocence o f the accused person. • Each link in the chain be tested so as to establish or otherwise, whether it leads to the accused's guilt. I f it does not, then the whole chain o f circumstantial evidence must be rejected. (See: Samson Daniel versus R. (1934)IEACA 154) • The facts from which an inference adverse to the accused is sought to be drawn have to be proved to the required standards in criminal trials, that is, beyond reasonable doubt

In this case, the trial judge considered all the above in relation to the evidence before her and came to the considered conclusion that all the evidence irresistibly pointed to the appellant, and nobody else, to have murdered Leah. Her conclusion was based on the following facts. • The appellant chasing all the children but holding back the deceased while the other children ran away, after he had refused their plea for leniency to free Leah. • The appellant's response and directions to PW3, PW4 and PW5 when they came searching and calling for Leah. • The appellant's conduct - of not assisting PW3, PW4, and PW5 in search of Leah and locking himself in his house when the search for the missing child was going on. That chain of circumstantial evidence linking the appellant to the death of Leah (within a time of thirty minutes) is unbroken thus leading to no other conclusion than that it is the appellant who murdered Leah. We see no reason to differ with the trial judge's findings on this aspect. We would like to add the following and in passing, in answer to Mr. Akida's submission that there was no cogent circumstantial evidence adduced to prove the

offence against the appellant. In Sadiki Ally Mkindi Versus DPP, Criminal Appeal No. 207 of 2009, the Court had an opportunity to quote en extensor Sdtoar on Evidence (15th Ed) pp- 66 - 68 thus:- • That in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the offence with which he is charged. The circumstances must clinch the issue of guilt. • That all the incriminating facts and circumstances must be incompatible with the innocence of the accused. • The circumstances from which an inference adverse to the accused must be proved beyond reasonable doubt. • Where circumstances are susceptible of two equally possible inferences, the inference favouring the accused rather than the prosecution, should be accepted. • There must be a chain of evidence so complete as not to leave reasonable ground for conclusion therefrom consistent with the innocence of the accused. We are in full agreement with Sarkar on those views.

The other issue for our consideration is the credibility and demeanour of the prosecution witnesses, particularly PW1 to PW5. It was Mr. Akida's submission that since those witnesses' evidence was full of contradictions and inconsistencies, their credibility was questionable. That is not necessarily the case. First we must start by reiterating the general principle of law on the subject. In Mohamed Said Matula versus Republic (1995) TLR 3, it was stated- "Where the testimony by witnesses contains inconsistencies and contradictions, the court has the duty to address the inconsistencies and try to resolve them where possible, or else the court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter..." (Emphasis provided). (See also: Maramo Slaa Hofu and Others versus Republic Criminal Appeal No. 246 of 2011 (unreported)).

• Although, the existence of contradictions and or inconsistencies in the evidence of a witness may form a basis for a finding of lack of credibility, however, that will result only if the said discrepancies are - • Serious, sufficient and go to the root of the matters relevant to the issues being adjudicated upon. • Considered together and as a whole and not some selected parts of the evidence being evaluated. • And the court has warned itself of the possibility that under normal circumstances, normal discrepancies are bound to occur in witnesses' testimony due to normal differences resulting from age, position ejusdem generis, of the witnesses as well as the time factor between the time the crime was committed and when eventually, the witnesses had an opportunity to testify in court, as is the case herein. Contradictions and or inconsistencies are therefore, fatal to a case where they affect the root cause of the case. Minor contradictions/inconsistencies are bound to occur but it is not necessary that they affect the credibility of a witness. In the instant case the trial judge was best placed to observe and determine the demeanour of the witnesses as well as their credibility and she came to the conclusion that they were witnesses of truth and 13

therefore credible. (See Augustino Nyamoga and Another versus The Republic (1994) TLR 16; Ali Abdallah Rajab versus Saada Rajab and Others, (1994 TLR 132). We are hesitant to differ with her in the absence of contrary evidence. Counsel for the respondent did not furnish such contrary evidence during the trial and at this appellate stage. The other issue raised by Mr. Akida is that the prosecution did not prove their case beyond reasonable doubt. Despite a long and lucid submission by Mr. Akida in his attempt to build up his case on the issue, we are, with due respect, not convinced that he succeeded in convincing us to agree with him. It is settled law that proof beyond reasonable doubt does not necessarily depend on the number of prosecution witnesses but rather, on the credibility of their evidence. We have held already (supra) that we are in agreement with the trial judge on the question of credibility. We see no cause to depart from that view. On whether malice aforethought - a necessary ingredient in crimes of this kind - was established, having evaluated the evidence on record, we are left with no doubt that it was. In Obadid Kijalo versus The Republic, Criminal Appeal No. 95 of 2007 (unreported), the Court held-

" It suffices to state that malice afore thought may be demonstrated by looking at the motive for the offence and the conduct of the suspect immediately before and after the act or omission ..." (Emphasis provided). In the instant case, the way the appellant behaved both before and after the death of Leah, is clearly supportive of the holding that there was malice afore thought. Section 200 of the Penal Code gives a detailed definition of what malice afore thought is. In our opinion, it covers the circumstances leading to the commission of the offence with which the appellant was charged. As to the likely motive behind the appellant's murder of Leah, the law is long settled. In Amir Mohamed Vs The Republic (1994) TLR 138, the Court held: ’! 'Although motive is not discernible on the record\ it does not have to be established to bring the charge home..."{ Emphasis Provided).

The other matter which was raised in the course of this appeal is whether both the sketch map (ExhPl) and the medical report (Exh P2) were tendered in accordance with the requirements of the law. We need not detain ourselves over the issue. It suffices to state here that there is no flicker of doubts that even if Exh PI and Exh P2 were to be expunged from the record, still the overwhelming evidence by the prosecution witnesses implicated the appellant with the murder of Leah. All the foregoing said and done, we hold that this appeal is devoid of merit and accordingly it is dismissed. We uphold the sentence imposed by the trial court - that of death by hanging. DATED at ARUSHA this 14th day of February, 2014. SJ. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL K.K. ORIYO