Awadhi Gaitan Mboma Vs Republic (Criminal Appeal No 288 of 2017) 2020 TZCA 205 (5 May 2020)

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IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

fCORAM; LILA, 3.A., WAMBALI. J.A.. And KOROSSO. J.A.^

CRIMINAL APPEAL NO. 288 OF 2017

AWADHI GAITANI @ MBOMA................................................APPELLANT

VERSUS

THE REPUBLIC.............................................................. RESPONDENT


(Appeal from the decision of the Resident Magistrate's Court of
Dar es Salaam at Kisutu)

fKalli. PRM. Extd. J.l

Dated the 31st day of May, 2017


in
Criminal Case No. 42 of 2015

JUDGMENT OF THE COURT

24th February & 5th May, 2020

KOROSSO. 3.A.:

Awadhi Gaitani @ Mboma the appellant, was charged with the

offence of murder contrary to section 196 of the Penal Code Cap 16

Revised Edition 2002 (the Penal Code). The allegations being that on the

29th March, 2012 around 11.30hours at Mihuga village, within Bagamoyo

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

the Penal Code.

The factual setting underlying the arrest, arraignment and conviction

of the appellant as expounded by the prosecution side who presented a

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.

According to Fatuma Hussein (PW3), a neighbour of PW1 and PW2, while

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

and she also followed suit to fathom what had happened.


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The deceased parents who were working in their farm at the time,

testified that at around 12.00hours they were informed by the deceased

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

incident. The Kitongoji chairman, Abdallah Rajabu Mlongwa (PW4) at

around 12.30hours, proceeded to inform the village executive officer and

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

facing the charges for which he was convicted and sentenced.

In his defence, the appellant denied involvement in the alleged

offence raising an alibi stating that on the day of the alleged incident, he

was at Mihuga village and then in the morning he travelled to Mandera

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

because the prayed in the same church. He conceded to have been

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

and therefore convicted the appellant.

Unperturbed, the appellant dissatisfied with the trial court's decision

appealed to this Court fronting a total of eleven (11) grounds of appeal.

The memorandum of appeal filed on the 3rd January, 2018 with seven (7)

grounds and four (4) grounds as found in the supplementary memorandum

of appeal filed on the 14th February, 2020. The grounds in the

memorandum of appeal, paraphrased, reads as follows:

1. That the extrajudicial statement (Exhibit P3) was improperly admitted


in view o f the fact that it was recorded beyond the four hour
prescribed period and also non-compliance o f the Chief Justice
guidelines forjustice o f the peace in taking extra judicial statements.

2. That PW7 violated the appellant's rights for non-disclosure to the


justice o f peace on whether the appellant's guardian or parents had
been informed in recording the extrajudicial statement, since the
appellant was a child in compliance with CPA.
3. Trial judge erred in convicting the appellant relying on the

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

was tendered by the prosecutor instead o f author.

5. Prosecution failed to lead forensic evidence related to telephone


communication between appellant and his mother on his intention to
leave the village thus failed to prove such allegations.

6. Trial judge erred in convicting the appellant relying on circumstantial


evidence which did not lead irresistibly to the guilty o f the appellant
due to failure to properly evaluate the evidence at the crime scene.

7. That the offence against appellant was not proved as required.

The Supplementary grounds of appeal paraphrased are that:

1. That, the appellant was erroneously convicted on circumstantial


evidence, despite important threshold not being met.

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

poorly drawn sketch plan.


3. Trial court erred in finding PW3 evidence credible white she failed

to provide details on essential facts pertinent to the case.

4. That, the appellant was convicted despite irregularities that


rendered the trial unfair. Such as, admissibility o f extra judicial

statement; Part o f PW8's testimony was taken while he was not


under oath; Exh.P3 read allowed by unsworn witness; Exh. PI
and P2 tendered un-procedurally and were not read aloud in
court; failure to number assessors; and failure o f trial SRM to sign
after testimonies o f each witness.

At the hearing of this appeal, the appellant was represented by Mr.

Ali Jamal, learned Advocate whereas the respondent Republic had the

services of Ms. Gloria Mwenda and Mr. Deus Makakala, both learned State

Attorneys.

The learned counsel for the appellant proceeded by grouping the

grounds of appeal filed and contended that the first ground of appeal in

the memorandum of appeal is also found in the fourth ground of the

supplementary grounds of appeal and challenges un-procedural recording

and improper admission of the extrajudicial statement of the appellant. He

argued that sections 50 and 51 of the CPA require that such statement

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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

reference to the holding in Japhet Thadei Msigwa vs Republic, Criminal

Appeal No. 367 of 2008 (unreported), where six factors to consider when

taking an extrajudicial statement were discussed. The learned counsel

contended that despite the fact that the appellant objected to admissibility

of the extrajudicial statement, his objection was overruled without regard

to availed infringement of various procedures in recording the statement.

He thus prayed that the extrajudicial statement be expunged from the

record.

On the second ground of appeal, found in the fourth ground in the

memorandum of appeal, the learned advocate submitted that the trial

court's error in admitting the PF3 for non-compliance of section 291(3) of

the CPA, where no doctor testified on the report and the appellant was not

informed of his right to call for cross-examination such a maker of the

medical report, then the appellant's rights were infringed. He contended


that, notwithstanding the fact that the cause of death as stated in the

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

informed of his right, a right which is not derogated by their failure to

object to admissibility of the postmortem report. He cited the decision of

this Court in Frank Massawe vs Republic, Criminal Appeal No. 302 of

2012 (unreported) to cement his assertions. He thus prayed that the

postmortem report (Exhibit P2) be expunged.

The third ground which the learned advocate proceeded to address

was the sixth ground in the memorandum of appeal that contends that the

trial court erred in convicting the appellant relying on circumstantial

evidence which did not conclusively prove that it was the appellant who

committed the offence. He submitted that, the only testimony which

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

contended is a long distance for one to properly identify or recognize a

person.
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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

fateful day. He argued that when PW3's evidence is carefully assessed, it

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

which was irrelevant.

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

watertight identification and that the circumstances surrounding the

scenario of what PW3 testified to have witnessed is very weak. He argued

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

which allows a possibility of mistaken identity or misconception on what

actually transpired. He argued that it is unbelievable that a person who has

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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

argued, was the testimony of PW2, which he contended was grounded on

mere suspicions that the appellant committed the offence because he had

been previously suspected of stealing from them and he had threatened

PW2 through a phone communication, and that the prosecution failed to

accord the trial court an opportunity to see such alleged communication.

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

disliked him despite attending the same church.

The learned counsel for the appellant reasoned that taking the

evidence against the appellant in totality, as discerned from the testimonies

of PW1 and PW2, it is grounded on strong suspicions against the appellant

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).

On the part of the respondent Republic, Ms. Gloria Mwenda objected

to the appeal and supported the conviction and sentence meted against

the appellant. Her response to the first ground challenging recording and

admissibility of the extrajudicial statement, was that section 50 and 51 of

the CPA was inapplicable since the provisions deal with cautioned

statements and not extrajudicial statements. She argued that there is no

specific provision that prescribes the time for recording extrajudicial

statements, but that practice has inferred that they should be taken within

reasonable time, relying on the holding of this Court in Vicent Homo vs

Republic, Criminal Appeal No. 337 of 2017 (unreported). The learned

State Attorney contended that in the present case, the appellant was

arrested on the 29th March, 2012 and that the vital factor in assessing

admissibility of such a statement is voluntariness, and thus delay of six

days to record the appellant's extrajudicial statement did not interfere with

the voluntariness in recording the said statement. She further argued that

during his defence, the appellant conceded to have given a statement to

the justice of peace. She cemented her arguments by citing the case of
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Vicent Ilomo vs Republic (supra) where the Court adopted the holding

in Mashimba Dotto @ Lukubanija vs Republic, Criminal Appeal No.

317 of 2013 (unreported), that it is enough if recording of extra judicial

statements substantially conforms to the Chief's Justice's instructions.

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

died an unnatural death, therefore her death is not in issue.

With regard to the ground of appeal challenging credibility of PW3,

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

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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

together with the circumstantial evidence it should lead to no other

inference but that it is the appellant who killed the deceased on the fateful

day.

The appellant's counsel rejoinder reiterated his earlier prayers that

the extrajudicial statement should be expunged from the record in view of

the alleged irregularities in recording the extrajudicial statement and non-

compliance with prescribed time to record it after arrest of suspect. He

added that there is also the fact it was not voluntary as discerned from the

appellant's defence that he was threatened by the police before the

statement was taken. He conceded that sections 50 and 51 of the CPA

applies to extrajudicial statements, but argued that the case of Vicent


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Homo vs Republic (supra) addresses recording extrajudicial statements

and refers to section 32(2) of CPA as the applicable section, and states that

an extrajudicial statement should be recorded within reasonable time and

argued that the six days taken to write the appellant's statement after the

arrest of the appellant cannot be said to be reasonable time.

He also reiterated prayers for the postmortem report to be expunged

and urged for re-evaluation of the evidence especially PW3's evidence and

allegations that the appellant escaped to another village after the incident,

which he stated is contrary to the evidence on record showing the

appellant went to his stepfather's house. With respect to the respondent

Republic contention that circumstantial evidence was sufficient to prove the

case, the learned counsel argued that there was no such evidence to lead

to a verdict of guilty against the appellant. The counsel implored us to find

that the prosecution failed to prove their case and to allow the appeal.

Having considered the foregoing submissions from both sides, we

shall address the grounds of appeal as paraphrased and as submitted by

the parties. The main issues under contention are first, irregularity in

recording the extrajudicial statement and its admissibility ( lsl, 2nd, 3rd

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grounds in the memorandum of appeal and the 4th ground in the

supplementary grounds of appeal). Second, irregularity in admissibility of

the Postmortem report (4th ground in the memorandum of appeal). Third,

trial court reliance on circumstantial evidence in convicting the appellant

(6th ground in the memorandum of appeal and 3rd ground in the

supplementary grounds of appeal). Fourth, offence against appellant not

proved (5th and 7th grounds in the memorandum of appeal and 2nd ground

in the supplementary grounds of appeal).

Starting with the first area of contention that is, assertions on

irregularity in recording the extrajudicial statement and its admissibility by

the trial court. The first arm of the objection was that PW8 who recorded

the extrajudicial statement did not make a statement to the police, an

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

being nothing amplified by the appellant in the memorandum of appeal

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

fact also conceded by the respondent Republic side.

The prosecution challenged these arguments and contended that the

extrajudicial statement was properly admitted and that the allegations have

no substance and should not be considered.

We have considered the defence arguments, that there was a delay

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

with. Suffice to say as also conceded by the learned appellant's counsel,

after a brief discussion with the Court. Sections 50 and 51 of the CPA

addresses statements taken by investigators where a suspect is arrested

(cautioned statements) and not extrajudicial statements. Section 50 of the

CPA deals with periods available for interviewing persons under restraint

and modality for calculating that period, while section 51 of the CPA

addresses modality to seek extension of time where custodial investigations

cannot be completed with four hours expounded in section 50 as the time

to interview a person after arrest.


We are aware of the position of this Court where there is no time

specified by the law on when an extrajudicial statement can be recorded

after the arrest of a suspect. In Mashimba Doto @ Lukubanija vs

Republic (supra), the Court, relying on the provision of section 32(2) of

the CPA, held that upon restraint a suspect is to be taken to the justice of

peace "as soon as possible". It is important to also remember that in the

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

of an explanation by the prosecution regarding the said delay and the

appellant had also contended that he was tortured by the police during this

period of delay.

In the present case, the arrest of the appellant is not disputed,

according to MG 447590 Gaspa Thobias (PW6), he was arrested on the 29th

March, 2010 at night around 20.00hours at Mandera village. On the 4®

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).

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We agree with the learned State Attorney that there is no law that

prescribes the time of recording the extrajudicial statement and

expectations being that the said statement must be made "as soon as

possible" as advanced in Mashimba Doto @Lukubanja vs Republic

(supra). It is upon the prosecution side to provide explanations for any

delay if it occurs. Suffice to say there was no such explanation expounded

by the prosecution side, which we find rendered the exposed delay

unwarranted. This being the case we are satisfied that under the

circumstances where the prosecution side failed to provide reasons for the

delay and other circumstances surrounding the recording of the appellant's

statement, leads this Court to find wanting the circumstances leading to

the admissibility of the extrajudicial statement. We agree with the learned

counsel for the appellant that the highlighted flaws in recording and

admissibility of the extrajudicial statement cannot be discounted and we

find that this ground has merit. Therefore we shall henceforth expunge the

extrajudicial statement (Exhibit P3) from the record and disregard the

statement in our deliberations.

The next ground was disgruntle on alleged irregularities in

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

Postmortem Report was admitted as Exhibit P2 during the Preliminary

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.

Failure to inform the appellant of this right was no doubt, an infringement

of section 291 (3) of the CPA and on numerous occasions, this Court has

reiterated the importance of complying to this provision. [See Dowido

Qumunga vs Republic (1993), TRL. 120; and Jackson Monga vs The

Republic, Criminal Appeal No. 145 of 2009; Selemani Kisava @ Emilo

vs The Republic and Jerald Ndarusanze vs Republic, Criminal Appeal

No. 181 of 2014 (all unreported)].

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

an opportunity to address it in numerous decisions. In Lack Kilingani vs

Republic, Criminal Appeal No. 402 of 2015 (unreported), when discussing

a similar issue regarding cautioned statement and PF3, we reiterated the

importance of the established practice of the courts that admitted evidence

should be read over so as to appraise the appellant of facts therein. The

Court also adopted the principle outlined in the Case of Robinson

Mwanjisi and Three others vs Republic [2003] T.L.R. 218 which stated

that:

" Whenever it is intended to introduced any document in


evidence, It should first be cleared for admission, and be
actually admitted, before it can be read out..."

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

Mkenza vs Republic, Criminal Appeal No. 206 of 2017 (unreported).

Therefore, without doubt in the present case, non-compliance of 291(3) of

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

Postmortem Report (Exhibit P2) to be expunged. The ground is therefore

meritorious, and the post mortem report is henceforth expunged.

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

page 121 of the record of appeal) stated:

" The connection o f event before and after incidence made by


the accused, lead to an inference that the accused is the one
who killed the deceased'

and further on, stated:

"Although the evidence produced by the prosecution


witnesses is circumstantial, but the same is best in this

case..."

We have considered submissions by both counsel on this issue, aware that

we have expunged the extrajudicial statement (Exhibit P3) and the

Postmortem report (Exhibit P2), and thus what remains pending is to

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

expounded by the prosecution is grounded on circumstantial evidence. This

Court has a number of times restated basic principles that courts should

consider when relying on circumstantial evidence. These principles were

restated and adopted in Mark Kasimiri vs Republic, Criminal Appeal No.

39 of 2017 (unreported), and they are:-

" i. That the circumstances from which an inference o f guilty is sought to


be drawn must to be cogently firmly established, and that those
circumstances should be o f a definite tendency unerringly pointing
towards the guilty o f the accused' and that the 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 non-else (See Justine Julius and
Others vs Republic, Criminal Appeal No. 155 o f 2005
(unreported)).

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

present case and shall be considered in our endeavour to establish whether

or not the evidence on record compellingly point to the guilt of 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

fateful day. She stated:

"I was outside my house when Awadhi passed and went to


the house o f Petro. I saw him going to the house o f Petro. I
saw him entered in the house o f Petro. Awadhi passed my
house and went to the house o f Petro. I was at my house
when Awadhi passed. It did not take long time when I heard
people crying, I can see people going to house o f Petro I also
went to the house o f Petro."

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

stabbed by a sharp object about five times.

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

ll.OOhours. It is also important to note that this evidence is not challenged

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

did go to PWl's house and was seen by PW3.

Second, conditions leading to the death of Esther Petro. There is

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.

Fourth, this is further amplified by the conduct of the appellant

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

first appellate Court, we exercise our discretion in re-evaluation of evidence

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

evidence of the appellant's presence at the scene of crime between

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

by hiding at Mandera village. Efforts to trace the appellant at Mihuga village

ran futile according to PW1.

Fifth, the evidence on their being misunderstandings and threats from

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

by the appellant on the allegations of threats during their cross examination

and established principles were a witness is not questioned on a material

point, leaves the unquestioned evidence to stand as it is [see Nyerere

Nyegue vs Republic, Criminal Appeal No. 67 of 2010 and Mustapha

Hamis vs Republic, Criminal Appeal No. 70 of 2016 (both unreported)].

PW4 Abdallah Rajabu Mlongwa, the Kitongoji Chairman, acknowledged

having received complaints of theft against the appellant and reaffirmed this

when cross-examined by the appellant's counsel stating that the appellant

had the habit of stealing and threatening. All these facts without doubt leads

to the motive for the killing.

Therefore, taking into consideration all the above pieces of evidence,

in our view what is illustrated is a chain of events which we find are so

connected to lead to nothing else but inference that it the appellant who

killed Esther Petro. Therefore this ground of appeal fails.

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

aforethought. We are well aware that malice aforethought is inferred from

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

that ascertain malice aforethought [See Enock Kipera vs Republic,

Criminal Appeal No. 150 of 1994 and Mark Kasimiri vs Republic, Criminal

Appeal No. 39 of 2017 (both unreported)].

In light of the above, applying it to the present case where the

deceased was killed by stabbing at her neck, a volatile and sensitive area for

any injury is a clear indication of malice aforethought. The conduct of

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

deceased as charged. Therefore this ground also fails.

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.

DATED at DAR ES SALAAM this 27th day of April, 2020.

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

appellant in person-linked via video conference and Ms. Chesensi Govyole,

learned State Attorney for the respondent/Republic, is hereby certified as a

true copy of the original.

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