Awadhi Gaitan Mboma Vs Republic (Criminal Appeal No 288 of 2017) 2020 TZCA 205 (5 May 2020)
Awadhi Gaitan Mboma Vs Republic (Criminal Appeal No 288 of 2017) 2020 TZCA 205 (5 May 2020)
Awadhi Gaitan Mboma Vs Republic (Criminal Appeal No 288 of 2017) 2020 TZCA 205 (5 May 2020)
AT PAR ES SALAAM
VERSUS
KOROSSO. 3.A.:
Revised Edition 2002 (the Penal Code). The allegations being that on the
District in Coast Region, the appellant murdered one Ester Petro, the
deceased. After a full trial the appellant was convicted and sentenced to be
i
detained during the President's Pleasure on such condition(s) to be
directed by the Minister responsible for legal affairs under section 26(2) of
total of nine (9) witnesses and three (3) exhibits, in essence was that, on
the 29th March, 2012 the deceased a ten (10) year old, was left alone at
home while her parents, Petro Omari Mgaya (PW1) and Martina Elias Kijojo
(PW2) went to their "shamba". The other children had also left to attend to
other matters including school and herding cattle. While the deceased was
alone at home, it is alleged that the appellant arrived at the house and
killed the deceased by stabbing her on the neck about five times.
outside her house during the morning hours, she saw the appellant going
to and enter PW1 and PW2's house and a while later saw him leaving the
house taking the same route he took when going to the house where the
deceased was. PW3 stated that a while later around 12.00hours, she heard
people crying and then saw some people rushing to PW1 and PW2's house
younger sister that Ester Petro was injured and laying down with blood
oozing from her mouth and nose. PW1 and PW2 rushed back to their
house and enroute they managed to inform the village chairman of the
thereafter the incidence was reported to the Police who then came with a
doctor to the scene of crime. The body of the deceased was found inside
the house laying down with blood on the mouth and nose and injuries on
the neck showing signs of having been stabbed with a sharp object about
five times. Upon hearing PW3 claims of having seen the appellant enter the
house prior to the incident, the appellant was traced but was not found in
the village and later he was arrested in a nearby village and then arraigned
offence raising an alibi stating that on the day of the alleged incident, he
village to visit his stepfather and that he never went to the crime scene.
The appellant acknowledged knowing the deceased before her death as his
friend's younger sister since he was a friend of the Petro's family and also
arrested on the night of 29th March, 2012 while at his stepfather's place. As
stated earlier, the trial court was convinced that the charge was proved
The memorandum of appeal filed on the 3rd January, 2018 with seven (7)
extrajudicial statement despite the fact that the police taking the
appellant to justice o f peace had disclosed the charge the appellant
was facing.
4. Trialjudge erred in admitting the Post Mortem Report (Exh. P2) which
2. That, the trial Court erred in convicting appellant despite the fact
that the case was poorly investigated. Neither the alleged
weapon, photographs o f scene o f crime nor telephone
communication with the appellant's mom was tendered. Also a
Ali Jamal, learned Advocate whereas the respondent Republic had the
services of Ms. Gloria Mwenda and Mr. Deus Makakala, both learned State
Attorneys.
grounds of appeal filed and contended that the first ground of appeal in
argued that sections 50 and 51 of the CPA require that such statement
6
should not be taken beyond four hours or within reasonable time. He
argued that the appellant was arrested on the 29th March, 2012 at
21.00hours and his cautioned statement was recorded on the 30th March,
2012 and the extrajudicial statement was taken on the 4th of April, 2012
which was six days after his arrest. To cement his stance, he made
Appeal No. 367 of 2008 (unreported), where six factors to consider when
contended that despite the fact that the appellant objected to admissibility
record.
the CPA, where no doctor testified on the report and the appellant was not
postmortem report was not disputed and it's admissibility was not objected
to by the appellant, it remains a clear fact that the appellant was not
was the sixth ground in the memorandum of appeal that contends that the
evidence which did not conclusively prove that it was the appellant who
provided a semblance of link to the offence charged was that of PW3 who
testified to have seen the appellant going and entering PW1 and PW2's
house, where the deceased was at the time. That PW3 testified that her
house is about 100 meters from where the deceased was killed, which he
person.
8
The learned counsel also challenged the fact that PW3 did not
describe clothes the appellant was wearing or describe any other special
matter to cement her contention that she recognized the appellant on the
lacks certainty that it is the appellant of whom PW3 saw going to the
deceased's house on that day. That another issue which the trial court
considered was what PW1 and PW2 had narrated as a rift between them
and the appellant which had occurred a few years before the incident and
The learned advocate thus urged us to find that the statement that
the appellant did not take long and came back passing the same route, and
a few minutes later heard people crying from the scene of crime is not
further that there are a lot of doubts in this testimony and especially when
the fact that the house was unfenced is taken into consideration, a fact
9
committed such a heinous crime will come back the same route as alleged
by PW3.
The other evidence relied upon by the trial court the learned counsel
mere suspicions that the appellant committed the offence because he had
That it should also be borne in mind that in his testimony, the appellant
stated he had no bone to pick with PW1 and PW2 but he knew they
The learned counsel for the appellant reasoned that taking the
and not on tangible evidence. He maintained that such suspicions are not
sufficient and the prosecution failed to show that the alleged circumstantial
evidence was so strong and led to an irresistible inference that it is only the
appellant who committed the said offence, in track with various decisions
10
including Ahmad Issa and Ramadhani Amani Kasanga vs Republic,
Criminal Appeals No. 171 of 2016 and No. 362 of 2017 (unreported).
to the appeal and supported the conviction and sentence meted against
the appellant. Her response to the first ground challenging recording and
the CPA was inapplicable since the provisions deal with cautioned
statements, but that practice has inferred that they should be taken within
State Attorney contended that in the present case, the appellant was
arrested on the 29th March, 2012 and that the vital factor in assessing
days to record the appellant's extrajudicial statement did not interfere with
the voluntariness in recording the said statement. She further argued that
the justice of peace. She cemented her arguments by citing the case of
li
Vicent Ilomo vs Republic (supra) where the Court adopted the holding
With regard to the second ground of appeal, that the doctor who
authored the postmortem report was not called as a witness neither was
the appellant informed on his right to pray for the doctor to be summoned
for cross examination, the learned State Attorney conceded that section
291(3) of the CPA was not complied with by the trial court and submitted
that the postmortem report be expunged. She also contended that despite
this fact, there is enough evidence on record that reveals that Esther Petro
the learned State Attorney contended that the witness was truthful and
credible. That PW3 testimony that around 11.00am she saw the appellant
who had also greeted her and he went to PW1 and PW2's house and that
he came back using the same route was firm and reliable. That PW1 had
also testified that upon hearing people crying from PW1 and PW2's house
12
PW3 went there and told them that she had seen the appellant going to
the house. The learned State Attorney contended further that PW3
evidence is supported by the sketch map which shows there is only one
way to PW1 and PW2's house. The learned State Attorney also argued that
the appellant was arrested at night in the third village, which infers that he
ran away after committing the offence. That there was evidence from PW1
and PW2 that the appellant had previously stolen from them and
threatened them thus she argued that when all the evidence is considered
inference but that it is the appellant who killed the deceased on the fateful
day.
added that there is also the fact it was not voluntary as discerned from the
and refers to section 32(2) of CPA as the applicable section, and states that
argued that the six days taken to write the appellant's statement after the
and urged for re-evaluation of the evidence especially PW3's evidence and
allegations that the appellant escaped to another village after the incident,
case, the learned counsel argued that there was no such evidence to lead
that the prosecution failed to prove their case and to allow the appeal.
the parties. The main issues under contention are first, irregularity in
recording the extrajudicial statement and its admissibility ( lsl, 2nd, 3rd
14
grounds in the memorandum of appeal and the 4th ground in the
proved (5th and 7th grounds in the memorandum of appeal and 2nd ground
the trial court. The first arm of the objection was that PW8 who recorded
objection which was overruled by the trial court, on ground that the name
of this witness was listed in the preliminary hearing as one of the witnesses
for the prosecution, we find need to further scrutinize this matter there
apart from what has been stated in limited form in oral submissions in this
Court. The second arm of the objection related to the fact that the
15
extrajudicial statement was recorded six days after the appellant's arrest, a
extrajudicial statement was properly admitted and that the allegations have
of six days from the time of arrest to when the extrajudicial statement was
recorded, and also that the delay to record the extra judicial statement of
the appellant meant that sections 50 and 51 of the CPA were not complied
after a brief discussion with the Court. Sections 50 and 51 of the CPA
CPA deals with periods available for interviewing persons under restraint
and modality for calculating that period, while section 51 of the CPA
the CPA, held that upon restraint a suspect is to be taken to the justice of
above case, the Court found the delay of six days in taking an extrajudicial
statement was not proper because apart from the said delay there was lack
appellant had also contended that he was tortured by the police during this
period of delay.
April 2012, the appellant was taken to the Justice of the Peace to give his
statement as expounded by F.248 Dte CpI. Nassoro (PW7) and Abdul Said
Mnolya (PW8).
17
We agree with the learned State Attorney that there is no law that
expectations being that the said statement must be made "as soon as
unwarranted. This being the case we are satisfied that under the
circumstances where the prosecution side failed to provide reasons for the
counsel for the appellant that the highlighted flaws in recording and
find that this ground has merit. Therefore we shall henceforth expunge the
extrajudicial statement (Exhibit P3) from the record and disregard the
admissibility of the Postmortem report. The argument being that there was
18
non-compliance with the law in that the appellant was not informed of his
right to call its author for cross examination and also that the Post Mortem
report was not read over in court. The prayer by the learned counsel for
the appellant was that the postmortem report be expunged. On the part of
the learned State Attorney he conceded to the stated defects and the
prayers sought. Our scrutiny of the record of appeal has discerned that the
hearing without any objection from the defence. Despite this fact, we are
aware of the provision of section 291(3) of CPA which enjoins the court to
inform the accused of his right to call the medical expert who prepared the
report for cross examination. The record of appeal divulge that immediately
after the PF3 was admitted the appellant was not informed of this right.
of section 291 (3) of the CPA and on numerous occasions, this Court has
19
There is also the fact that the post-mortem report upon being
admitted was not read over in court to enable the appellant (the accused
<*
then) to be informed the contents therein. On this issue, this Court has had
Mwanjisi and Three others vs Republic [2003] T.L.R. 218 which stated
that:
Thus expounding that there are three stages in admitting evidence that
is; that is, first, clearing for admission; second, admitting it; and third,
reading out the admitted document. (See also Erneo Kidilo and Matatizo
20
CPA and failure to read the admitted postmortem report were irregularities
that are fatal and as rightly advanced by the learned counsel for the
appellant and the learned State Attorney that should lead for the
The third area of contention was that the trial court erred in relying on
circumstantial evidence which did not lead to an inference that it was only
the appellant who could have committed the offence. The trial court (at
case..."
examine whether the available evidence proved the case against the
21
appellant On our part we agree with the appellant that the case against him
Court has a number of times restated basic principles that courts should
ii. That the inculpatory facts are inconsistent with the innocence o f the
accused person and incapable o f explanation upon any other
reasonable hypothesis than that o f guilt; and that before drawing
inference o f guilt from circumstantial evidence, it is necessary to be
sure that there are no existing circumstances which would weaken or
destroy the inference [See, Simon Msoke vs Republic (1958) EA
715A and John Magula Ndongo vs Republic, Criminal Appeal No.
18 o f2004 (unreported)].
22
iii. That the accused person is alleged to have been the last person to be
seen with the deceased in absence o f a plausible explanation to
explain away the circumstances leading to death, he or she will be
presumed to be the killer. (See Mathayo Mwa/imu and Masai
Rengwa vs Republic (supra).
iv. That each link in the chain must be carefully tested and, if in the end it
does not lead to irresistible conclusion o f the accused's guilt, the whole
chain must be rejected. (See Samson Daniel vs Republic (1934)
E.A.C.A 154).
v. That the evidence must irresistibly point to the guilt o f the accused to
the exclusion o f any other person (See Shaban Mpunzu @Elisha
Mpunzu vs Republic, Criminal Appeal No. 12 o f2002 (unreported).
vi. That the facts from which an adverse inference to accused is sought
must be proved beyond reasonable doubt and must be connected with
the facts which inference is to be inferred. (See Ally Bakari vs
Republic (1992) TLR 10 and Aneth Kapazya vs Republic, Criminal
Appeal No. 69 o f 2012 (unreported)."
When addressing this ground, the above principles are relevant to the
appellant. The chain of events in the present case we find are first, the fact
that the appellant was at Mihuga village and not Mahera village at the time
23
the deceased was attacked. This can be discerned from the evidence of PW3
who testified that she saw the appellant going to the house of PW1 on the
When questioned by the 1st assessor, PW3 stated that this transpired
in the morning hours. PW3 was also adamant that she was outside her
house when she saw the appellant who greeted her and proceeded to go to
PWl's house and then entered the house of PW1. That when he left the
house he came back with hands in his pocket using the same route he had
taken earlier to go to PWl's house. She also testified that the distance
between their two houses is about 100 meters and that not much later after
the appellant had passed by from PWl's house, at about 12.00hours she
heard people crying from PWl's house and she went there to see what had
transpired and that she was the one who then informed the people there
24
including PW1, PW2 and PW4, what she had witnessed with respect to the
appellant.
There is also the evidence of PW1 and PW2 who stated that while at
the farm which is about thirty (30) minutes' walk from their house, at about
12.00noon, the deceased younger sister schooling who was still in uniform
came there and informed them that on arrival at home from school she
found her elder sister, the deceased laying on the ground while blood oozed
from the mouth and nose. PW1 and PW2 rushed back home soon after. On
reaching home, they found the deceased in a room, laying on the ground
while blood was oozing from mouth and nose. That they discerned that the
blood was caused by injuries on her neck which showed she has been
PW1 testified that their neighbour PW3, informed them that about
ll.OOhours she had seen the appellant who passed her house and went to
PWl's house and that thereafter he returned back using the same path. It
was the evidence of PW1 and PW2 that when they left for the farm, they
had left the deceased at home. There was also the testimony of PW2, who
said she left the deceased alone in the house around ll.OOhours to go to
the farm carrying porridge. That it was around 11.45 hours, when the
25
deceased's younger sister came to the farm and informed them of the
injured deceased. PW1, PW2 and PW4 evidence support the PW3's evidence,
on the information she gave them of seeing the appellant enter PWl's
house.
The trial court relied on the evidence of PW1, PW2, PW3 and PW4 on
the ground that the court is satisfied with their evidence. From this evidence,
especially that of PW3, we also find that it is sufficient to establish that the
appellant did go to PWl's house after ll.OOhours and before 11.45 hours.
There is also no doubt that the deceased was alone in the house as of
by the appellant's defence neither in the cross examination of PW3 nor in his
defence. The appellant's defence was that he had left for his stepfather's
house in the morning of 29th March, 2012 although he was unable to reveal
the time he left Mihuga village to Mandera village. The only time revealed in
his testimony is that he was arrested on the same day at 21.00hours while
at his step father's place at Mandera. Leading us to find that the appellant
evidence, from PW3, that soon after the appellant left PWl's house, around
26
12.00hours sounds of people crying were heard from PWl's house. That
Ester Petro was found to be dead with stab wounds on the neck. The fact
that Ester Petro died, is not disputed, the appellant also conceded this
during the preliminary hearing. Third, is the question who killed Esther
Petro? From the circumstances narrated above and the chain of events, as
discerned from testimonies of PW3, PW1, PW2 with respect to the time of
seeing that Ester Petro was dead creates a close link, that leads to the most
probable explanation being that it is only the appellant who killed her and no
one else.
thereafter. The appellant was arrested at Mandera village having left Mihuga
village, where the offence was committed. There is no question that, he was
arrested at his stepfather's house. The appellant claimed that he was there
to assist his stepfather. We are aware that the appellant had no duty to
establish his innocence, but having raised the defence of alibi, although no
notice was given within the confines of section 194 (4) of CPA but as the
to consider such evidence within the confines of section 194(6) of the CPA.
Our consideration of the evidence in totality shows the alibi was nothing but
27
an afterthought as rightly found by the trial and first appellate courts. The
appellant alibi did not raise any doubt to the firm evidence of PW3, the
ll.OOhours to 11.45 hours on the fateful day, and soon after being seen, the
deceased being found dead, is very cogent leaving no doubts. Also being
arrested at Mandera village on the same night after the incident of killing
Esther Petro at Mihuga village, shows that the appellant had tried to escape
the appellant to PWl's family. The fact that the appellant was known to the
family of PW1 and met at the church is not disputed, by the appellant and
PW1 and PW2 alluded to this fact. The appellant stated that he considered
himself a friend of the family although he contended that PW1 family did not
like him. PW1 and PW2 testified that the appellant had stolen about Tshs.
200,000/- from him and had been told to leave the village by the village
chairman and that led him threatening that he will do something which they
will not forget. PW2 stated further that the threats from the appellant were
28
aired via a phone call on Tuesday and their daughter was killed on
Thursday.
It is interesting to note that neither PW1 nor PW2 were not questioned
having received complaints of theft against the appellant and reaffirmed this
had the habit of stealing and threatening. All these facts without doubt leads
connected to lead to nothing else but inference that it the appellant who
With regard to the fourth ground which is general and contends that
the prosecution failed to prove their case, we are of the view that in light of
29
what has been demonstrated above, this ground has also been dealt with
when determining the other three grounds. In this ground we also find it
pertinent to consider whether the killing of Esther Petro was with malice
actions leading to the unlawful act of killing since it is rare that the attacker
will declare his intention to cause the death or grievous harm of another
person. It has been held that the type of weapon used, the amount of force
applied, part or parts of body or blow or blows are directed at or inflicted on,
the number of blows although one blow may be sufficient for this purpose,
the kind of injuries inflicted, the attackers utterances made before or after
killing, and the conduct of the attackers before and after killing are factors
Criminal Appeal No. 150 of 1994 and Mark Kasimiri vs Republic, Criminal
deceased was killed by stabbing at her neck, a volatile and sensitive area for
escaping from the scene of crime discerned from his arrest in another village
shows the killing was planned with intention to accomplish it without being
30
noticed or found. In the end, we thus are in tandem with the trial court's
findings, and find that the appellant was justly convicted with murder of the
In the end, as expounded above, serve for the two grounds of appeal
which we have allowed, we find that the appeal lacks merit and we proceed
to dismiss it.
S.A. LILA
JUSTICE OF APPEAL
F. L. K. WAM BALI
JUSTICE OF APPEAL
W. B. KOROSSO
JUSTICE OF APPEAL
Judgment delivered this 5th day of May 2020 in the presence of the