IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: MUNUO,J.A.,
MSOFFE,J.A., And KAJI,J.A.)
CRIMINAL
APPEAL NO. 7 OF 2004
ELIAS PAUL…………………………………………………………….APPELLANT
VERSUS
THE REPUBLIC
…………………….….……………………………RESPONDENT
(Appeal from
the conviction of the High
Court of
Tanzania at Bukoba)
( Mrema
J.)
Dated the 4th
day of April, 2004
in
Criminal
Sessions Case No. 1 of 1998
JUDGMENT
OF THE COURT
14 February, 2006 &
MSOFFE,J.A:
The
appellant Elias Paul was convicted of murder contrary to section 196 of the Penal code by the High
Court ( Mrema,J.) sitting at Bukoba. He
was sentenced to suffer death by hanging.
Even so, he believed he was wrongly convicted of the offence and through
the services of Mr. Galati, learned advocate, he has preferred this
appeal. Mr. Galati, prosecuted the
appeal before us and the respondent Republic was represented by Mr. Mdemu, learned
State Attorney.
A summary of the case that led to the
appellant being convicted of murder is as follows. The 25th day of December, 1991 was
Christmas Day. The villagers of
Rwakihaya – Rugasha in Karagwe District were busy commemorating and celebrating
the day with the usual church services and other festivities accompanying the
day. The deceased and his wife Pw4 Ntabajana Rwabitenga attended church services.
On their way home they passed through the home of one Paulo Kalisa where a local
brew commonly known in the area as “rubisi” had been brewed to colour the
day. There were a number of people drinking
the brew, including one Fidestina Bugingo a daughter in law of the
deceased. The appellant was also
present. The deceased instructed his
sister in law to accompany PW4 and thereby return home to draw local brew into drinking
containers. The act or practice of putting
brew in containers is known in the area as “kuchota pombe”. Immediately after giving the instructions,
the appellant assaulted the deceased. The
people who were present separated the appellant from the deceased. In the meantime, the deceased and his wife left
and returned home. At about 4.00 p.m the
deceased visited the home of PW1 Anthony, his son. PW1 was not there. He met PW2 Maria Antony, PW1’s wife. He narrated to PW2 how the appellant had
assaulted him on that day. Thereafter,
he returned home. At about 5.00 p.m PW1
also returned to his home. As he (PW1)
was drinking some local brew with his friends the appellant came in, in a visit
which was without notice or invitation.
Nonetheless, PW1 offered the brew to the appellant to drink. Shortly thereafter, the deceased came in as
well. On seeing the appellant the
deceased made the following remark to the said appellant:-
“Elias
umenipiga kwenu nyumbani na bado mpaka sasa umenifuata na hapa nilipo ni kwetu
nyumbani”.
Upon
that statement, the appellant seized the deceased by the shoulders, pulled him
out of PW1’s house and beheaded him, and the blow sent the deceased to the
ground. PW1 and those present attempted
to stop the appellant. In the process, PW1 was also beheaded by the
appellant. PW3 Pascal saw the deceased
bleeding from the mouth. The deceased left for home, still bleeding. At home, the deceased told his wife PW4 that
the appellant had assaulted him. PW4 started
to nurse the deceased. As she was doing
so, the appellant hurriedly came in. Without
uttering a word the appellant grabbed the deceased and pounded him with a stone
on various parts of the body including the chest, abdomen and head. Out of fear PW4 went out and raised an
alarm. Among the first people to respond
to the alarm were PW1 and PW3. They
found that the appellant had already left the scene but meanwhile PW4 was
crying and shouting “Yulee, Yulee anakimbia”.
She also told PW3 thus: - “Elias amemuua mume wangu”. In the meantime, the deceased had lost consciousness
and was groaning. He died immediately
thereafter. A village drum was sounded
and the “sungusungu” sealed the common village outlets to ensure that the
appellant did not escape. The appellant
was sought and found the following day hiding under a bed in his house. He was accordingly arrested and taken to the
deceased’s house. Later the police were
informed. Consequently, the appellant
was charged in court, hence the eventual conviction and sentence.
At the trial the appellant was the sole
witness for the defence. In his fairly
long oral defence statement he canvassed a number
of points. It will not be necessary for
us to touch on each and every point that was raised by him. It will suffice to say briefly that the
central point in the defence was that the appellant denied touching, let alone, beating the deceased on
the three occasions. He admitted
visiting the home of PW1 at 3.00 p.m on the fateful day where, at sunset and
just before 7.00 p.m, the deceased joined them.
According to him, the deceased then uttered the following words:-
“Zamani
walipokuwa wanalipiza kisasi walikuwa hawafuati yule aliyefanya kitendo bali
walikuwa wanachagua hata kwenye ukoo ule ule”.
Thereafter,
the deceased wanted to close the door but his son Antony
Mr.
Galati raised in the memorandum of appeal two grounds but at the hearing he
abandoned the second ground and argued only the first ground. The sole ground then reads as follows:-
That
the learned trial Judge erred in law by convicting the accused for the offence
of murder while the cause of deceased’s death was not proved beyond reasonable
doubts.
In
arguing the appeal Mr. Galati said that the cause of death was not established
beyond reasonable doubt. In the course
of his submission, he carried us through the findings of the judge on the
point. He sought to fault the judge in
grounding the conviction when the post mortem examination report was not
produced and admitted in evidence. In
the absence of the report it was quite possible that the deceased met his death
on account of other causes, Mr. Galati concluded on the point.
On
his part Mr. Mdemu was of the general view that the absence in evidence of the
post mortem examination report was inconsequential because of the following
reasons. There was no evidence that the
deceased was sick before he died. The
evidence is clear that the deceased was not beaten by any other person other
than the appellant. The deceased died
instantly after the third assault. Even
if the post mortem examination report had been admitted in evidence at the
trial the only dispute would have been on who signed it and not on the cause of
death. Thus, the cause of death as
narrated in the facts at the preliminary hearing would have remained the same i.e.
that the cause of death was internal haemorrhage. Therefore, in his view the case against the
appellant was proved beyond reasonable doubt.
We
heard the appeal on 14. 2. 2006 and reserved our decision. In the meantime, and
in the interests of justice, on 17. 2. 2006 in exercise of our powers under
Rule 34(1) (b) of the Court Rules, 1979, we directed the High Court to take additional
evidence on the post mortem examination report and certify the same for our
decision. Our order has since then been complied with by the High Court. CW1 Longino
Alois Tibenda testified in compliance with our order. He stated that he conducted the post mortem
examination on the deceased’s body. Having done so, he opined that the cause of
death was due to internal abdominal haemorrhage. This evidence tallies with the post mortem
examination report which he later prepared, signed and produced in evidence when
he testified.
In the light of the additional evidence
it will follow that the sole ground of appeal has no leg to stand on. It is now
clear that the cause of death is established by the evidence on record. At any
rate, the ground was based solely on the fact that the post mortem examination
report was not produced and admitted at the trial so that the cause of death
could be ascertained. Now that the post mortem examination report is part of
the evidence on record the ground of appeal has no basis, as already stated
above. We may observe further that at the trial the report was objected to
because it was not signed by a qualified doctor. The objection had nothing to do with the
cause of death reflected on the said report.
Therefore, strictly speaking, there was no objection at the trial
regarding the cause of death.
Having
said so, the crucial issue before us is whether or not there was sufficient
evidence to ground the conviction in question.
With respect, we are in agreement with Mr. Mdemu that the case against
the appellant was established beyond reasonable doubt. In this regard, we wish to associate
ourselves with his submission on the circumstances showing that the cause of
death of the deceased was caused by the appellant.
Having
made the above general statement, we wish to address ourselves to other salient
features of the case. In both at the
preliminary hearing and at the main trial there was no serious dispute that the
appellant assaulted the deceased on that day in the three separate incidents. And as fate would have it the third assault
led to the death of the deceased. In
this regard, like the trial High Court, we have no basis in not believing PW1,
PW2, PW3 and PW4 in their respective testimonies on the three incidents.
At
this juncture we wish to address ourselves to the provisions of section 200 of
the Penal Code in relation to this case.
The section reads as follows:-
200
Malice aforethought shall be deemed to be established by evidence proving any one or more of the
following circumstances:-
(a)
an intention to cause the death of or to do
grievous harm to any person, whether such person is the person
actually killed or not;
(b) knowledge
that the act or omission causing death will probably cause the death of or grievous
harm to some person, whether that person is the person actually killed or
not, although that knowledge is accompanied by indifference whether death or
grievous bodily harm is caused or not, or by a wish that it may not be caused;
(c) an intent
to commit an offence punishable with a penalty which is graver than
imprisonment for three years;
(d) an
intention by the act or omission to facilitate the flight or escape from
custody of any person who has committed or attempted to commit an offence.
(Emphasis supplied)
Under
sub-paragraph (b) above, it is evident that the knowledge that an act or
omission may cause death or grievous harm constitutes constructive malice. In the instant case the appellant must have
known that the act of assaulting the deceased on the three separate occasions
was likely to cause the death of the deceased or cause grievous harm to him. And, as already observed, the third assault
actually led to the death of the deceased.
Malice may also be inferred from the
nature of the weapon used and the part or parts of the body where the harm is
inflicted. In this case a stone was used
and was hit on the head, chest and abdomen which are vulnerable parts of a
human body.
The conduct of an accused person before
or after killing may also infer malice. The appellant in this case did not
respond to the alarm raised by PW4. Under normal circumstances one would have
expected him to respond to the alarm. After all, the deceased was his neighbour!
So, responding to the alarm would have been a prudent thing for him to do in
the circumstances. It is also in evidence, and undisputed for that matter, that
the appellant left the scene immediately after the killing. If he was all that
of an innocent person he would not have left the said scene. It is also undisputed that he was seen and arrested
hiding under a bed in his house. If he
was innocent there was no need for him to hide.
In our view, the totality of his conduct after
the killing was not consistent with innocence.
In the event, for the above reasons, we
are satisfied that the case against the appellant was established beyond
reasonable doubt. We have nothing to
fault the judge in grounding the conviction in question. We accordingly dismiss
the appeal in its entirety.
DATED
at DAR ES SALAAM this 3rd day of October, 2006.
E.N. MUNUO
JUSTICE OF APPEAL
J.H.
MSOFFE
JUSTICE OF APPEAL
S.N
KAJI
JUSTICE OF APPEAL
I certify that this
is a true copy of the original.
S.M. RUMANYIKA
DEPURY
REGISTRAR
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