(CORAM: MSOFFE, J. A., KILEO, J. A. And KALEGEYA, J. A.)

Transcription

1 IN THE COURT OF APPEAL OF TANZANIA AT TANGA CRIMINAL APPEAL NO. 130 OF 2005 MSOFFE, J.A SEIF SELEMANI VS THE REPUBLIC (Appeal from the Judgment of the High Court of Tanzania at Tanga by Longway, J 1) - Burden of proof in Criminal responsibility. 2) - Case of Mathias Bundala VS. Republic, Criminal Appeal No. 62 of 2004 (unreported) where it is stated:- 3) It is not the requirement of the law that the cause of death must be established in every murder case. Aware of the practice that death may be proved by circumstantial evidence even without the production of the body of the alleged dead person. 4) - Case of LEONARD MPOMA VS. REPUBLIC (1978) TLR 58 5) - It is now established law that homicide can be satisfactorily proved without first establishing the cause of death. IN THE COURT OF APPEAL OF TANZANIA AT TANGA (CORAM: MSOFFE, J. A., KILEO, J. A. And KALEGEYA, J. A.) CRIMINAL APPEAL No. 130 OF 2005

2 SEIF SELEMANI..APPELLANT VERSUS THE REPUBLIC.RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tanga) 27 June & 9 July 2007 (Longway, J.) dated the 6 th day of July, 2005 in Criminal Sessions Case No. 28 of JUDGMENT OF THE COURT MSOFFE, J. A.: The appellant Seif Selemani was convicted of murder contrary to section 196 of the Penal Code by the High Court (Longway, J.) sitting at Tanga. He was given the usual mandatory death sentence. He was aggrieved by the conviction and the sentence hence this appeal. At the hearing of the appeal he was represented by Mr. Joshua Msakamari, learned advocate, and the respondent Republic was represented by Mr. Biswalo Eutropius Kachele Mganga, learned State Attorney. Mr. Msakamari adopted the memorandum of appeal filed by the appellant and in the process be abandoned the second and third grounds, and then argued the rest. In the remaining grounds there is one main complaint. That the circumstantial evidence did not irresistibly lead to a reasonable inference that the appellant murdered the deceased, Seif Ali Lugendo. Mr. Mganga did 2

3 not support the conviction, correctly in our view, for the reason stated by Mr. Msakamari. Also Mr. Msakamari and Mr. Mganga asserted that since the cause of death was not established proof of death only cannot be taken to be proof of murder. This is no doubt an important point of law which we will deal with hereunder in the course of this judgment. The case against the appellant was basically that PW1 Mwanaisha Yahya and the deceased were wife and husband, respectively. According to PW1, the appellant and the deceased, as friends, had a habit of swapping shirts. In the morning of while PW1 was still in bed the deceased left saying he was going to Kwamkono village. At the time of leaving he was putting on a purple stripped T-shirt which she described to have belonged to the appellant. She stated that her husband did not return, so she raised an alarm. A search for the deceased was mounted but to no immediate success. On she, and fellow villagers received a report of the discovery of the remains of a human body in Kwesonga forest between Kweditibe and Kwamkono villages. PW3 Musa Salimu Msingwa, the village chairman, and his assistants visited the place where the remains had been seen. At the scene, PW3 and his entourage saw the remains which were mainly bones from a decomposed body. PW5, Rajabu Ali Lugendo, the deceased s brother, identified the remains to be that of the deceased mainly after looking at the legs. At the scene, a shirt attached to the 3

4 remains was also seen and it was believed to have belonged to the deceased. In the meantime, on an undisclosed date in April,1996 Dr. Rashid A. Shemsanga examined the remains and in his view the body was so decomposed that the cause of death could not be established. In the meantime also, PW2, Rashidi Kuku Mgeni, a medicineman and a resident of Mandela village, stated that on the appellant approached him seeking protection from police arrest following his involvement in the death of the deceased. The trial judge properly directed herself on the law on circumstantial evidence. That where the evidence against an accused person is wholly circumstantial the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be inferred. In other words, the inference must irresistibly lead to the guilt of an accused person. In this regard, the judge cited this Court s decisions in Ally Bakari and Pili Bakari v Republic (1992) TLR 10 and Protas John Kitogole and Another v Republic (1992) TLR 51. Admittedly, the appellant s conviction was based on circumstantial evidence. The question is whether or not the available circumstantial evidence irresistibly led to an inference that the appellant was guilty of the alleged murder. 4

5 With respect, we are in agreement with Mr. Msakamari and Mr. Mganga that the available circumstantial evidence did not establish the case against the appellant beyond reasonable doubt. We say so for a number of reasons. One, there was no evidence that the appellant was the last person to be seen with the deceased. On the available evidence, the last person to be seen with the deceased was PW1. Two, as already stated, a shirt was seen at the scene of incident. However, PW1 was not called upon to visit the scene. If she had visited it, may be she could have explained whether or not the shirt at the scene belonged to the appellant or the deceased for that matter. Three, it was in evidence that at the scene there were footprints to suggest that there must have been a scuffle or a fight of some sort before the deceased met his death. However, it was also in evidence that at the material time it rained in the area. If so, it was highly unlikely that there indeed were the footprints because it was likely that footprints, if any, were washed away by the rains. At any rate, there was no suggestion that the footprints had anything to do with the appellant. Four, one of the incriminating pieces of evidence against the appellant was that he left the village following the disappearance of the deceased. However, the appellant gave an explanation pertaining to why he left the village. He stated that he travelled to Arusha. In any case, it was not disputed that the appellant hailed from a different village and nobody visited his village to ascertain whether or not he was not there. 5

6 As already observed, Mr. Msakamari and Mr. Mganga were of the view that in the absence of proof of cause of death, proof of death only cannot be taken as proof of murder. With respect, we are unable to agree with learned counsel in their respective view an the point. In a recent decision by this court, in the case of Mathias Bundala v Republic, Criminal Appeal No 62 of 2004 (unreported) the court stated:-.it is not the requirement of the law that the cause of death must be established in every murder case. We are aware of the practice that death may be proved by circumstantial evidence even without the production of the body of the alleged dead person: See for instance, LEONARD MPOMA v REPUBLIC (1978) T L R 58.. It goes without saying, therefore, that it is now established law that a homicide can be satisfactorily proved without first establishing the cause of death. Otherwise, we are in agreement with learned counsel that in the instant case the evidence taken as a whole there is nothing in it to suggest that the appellant could be deemed to have caused the death of the deceased under any of the circumstances outlined under section 203 of the Penal Code. 6

7 In the event, for the foregoing reasons, the appellant was entitled to be given the benefit of doubt and thereby earn an acquittal. We accordingly allow the appeal, quash the conviction and set aside the sentence. The appellant is to be released from prison unless he is lawfully held therein. DATED at TANGA this 2 nd day of July, J. H. MSOFFE JUSTICE OF APPEAL E. A. KILEO JUSTICE OF APPEAL L. B. KALEGEYA JUSTICE OF APPEAL I certify that this is a true copy of the original. (I. P. KITUSI) DEPUTY REGISTRAR 7