Mustafa Paulo @ Senge v. Republic, Cr appeal no 55 of 2007 (Murder case)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:  MROSO, J.A., KIMARO, J.A., And LUANDA, J. A.)

CRIMINAL APPEAL NO. 55 OF 2007

MUSTAFA PAULO @ SENGE……………………………APPELLANT

VERSUS

THE REPUBLIC…………………………………………RESPONDENT

(Appeal from the decision of the High Court

of Tanzania at Tanga)

(Mushi, J.)

dated 17^th January, 2007

in

Criminal Sessions Case No. 2 of 2004

…………………

JUDGMENT OF THE COURT

25^th June & 3^rd July, 2008

KIMARO, J. A.

In the High Court of Tanzania at Tanga, the appellant, Mustafa Paulo @ Senge was charged with five counts of murder contrary to section 196 of the Penal Code, convicted and sentenced to suffer death by hanging.  The deceased persons, subject of the five counts respectively, were Fatuma Salumu, Asha Mustapha, Amina Yusufu, Nambua Joseph and Zuena Musa.   According to Dr. Abdallah Rashid Chale(PW3) who conducted the  autopsy of the dead bodies, the deceased persons died because of multiple organ failure following  severe   fire burns.  All the deceased persons died on 24^th June, 2002.

The evidence led to support the prosecution case was that all the deceased persons were, on the night of 24^th June, 2002 sleeping in a room of Asha Mustapha, one of the victims of the fire accident and the owner of the house at Street No. 17.  She was also the mother of the appellant.  Rose Robert (PW1) testified that on the fateful night (24^th June, 2002) at around midnight she heard someone crying saying “mother I am dying”. In response to that lamentation she went outside to see what was wrong.  She saw the room of Asha Mustapha on fire. It would appear that after people learnt about the fire accident, the information passed around very fast and a rescue operation started. Among the persons who participated in the rescue operation was ASP Mrio (PW2).    His testimony was that the door to the room of Asha Mustapha where the fire started had to be forced open because it was locked and the victims were then removed and rushed to hospital immediately.   Asha Mustapha, the mother of the appellant, was heard lamenting all the way to hospital that it was the appellant who was killing her. “Mwanangu Mustafa unaniua”.  None of the persons who slept in the room survived.

As to why the appellant was arraigned and charged, Pw1 testified that Asha Mustafa and the appellant had a sour relationship for a long period.  The relationship was so sour that the appellant who was living in the same house with his deceased mother was forced to vacate the house and went to live with his grandfather in a nearby house.  Three days before the fire incident the appellant had a serious quarrel with his mother and he threatened her that something terrible would happen to her.  Further prosecution evidence   was that the appellant neither participated in the rescue operation after the fire broke out nor the burial of his deceased mother.  The appellant was arrested on 25^th June, 2002 and according to the evidence of No.C. 3540 D/SGT (RTD) Elilindia(PW4) he recorded a caution statement of the appellant in which he admitted setting the room of his  deceased  mother on fire  with the intention of causing death to her because of their bad relationship.  The statement was first repudiated by the appellant and then retracted but after a trial- within- trial, the learned trial judge found it was made voluntarily.   The caution statement was admitted in evidence as exhibit P6.  In the statement the appellant explained what he did on the fateful day.  He poured petrol into the room of his deceased mother through the window and then lighted it.   A one litre container which the appellant said he used for keeping the petrol  he bought for purposes of setting the room on fire was found  outside the house at the window of the deceased mother’s room.

The appellant in his defence denied that he was involved in the commission of the offence.  He said he participated in both the rescue operation and the burial of his deceased mother but his two witnesses he brought to testify in his favour Rashid Jumbe(DW2) and Mwanaisha Hamisi (DW3) disowned him.  The witnesses, a husband and wife were residing in the same house with the appellant but they said the appellant did not participate in any of the two events.

The learned trial judge was satisfied that the prosecution case was proved beyond reasonable doubt and that it was the appellant who caused the fire with intention to kill his mother and in that process the other deceased persons also died. He said:

                   There is ample evidence that the fire was

                   caused by  accused, deliberately,

                   and the accused was targeting her deceased

mother.  And in the process, the other four deceased persons were also killed.  

The learned trial judge was of the opinion that the time when the offence was committed, and the preparations that the appellant made prior thereto, were significant for inferring malice aforethought on his part.  He said:

 The act of setting fire to the house, during the night,

 when the occupants of the house were supposed

 to be sound asleep, reflects the evil intention the

accused had, that of causing death.  The

 accused did plan the commission of the fire.

Firstly, he had a verbal fight with her deceased mother three days prior to the fire incident.

After the squabble, the accused had purchased

some petrol with which to cause the fire.  Then on

the material day, he used the petrol to cause

the fire. 

The other incriminating evidence as recorded by the learned trial judge was:

The container which was used to store

the petrol was found by PW2 outside the bedroom window of the deceased mother.  The accused described this container and the petrol and where he had hidden it before the fire, in his own statement. The conduct of the accused after the commission of  the fire, again adds some weight to the prosecution’s case.  The accused, I am satisfied, was hiding from the police that is why he did not attend her mother’s funeral.  He was feeling guilty consciousness.  To crown it all, the lying nature of the accused which has been reflected,

not only to the court but also to his own defence

counsel leaves a lot to be desired.

The appellant was aggrieved by the decision of the High Court and he is now before the Court with this appeal.  Mr. Alfed Akarro learned counsel representing the appellant in this appeal filed only one ground of appeal:

                            The learned trial judge erred in fact by convicting

                            the appellant as there was no sufficient evidence

to establish beyond  all reasonable doubt that the appellant committed the offence charged.

         In support of the appeal, Mr. Akaro submitted correctly, in our view, that in convicting the appellant, the learned trial judge depended on the dying declaration of the appellant’s deceased mother that the appellant was killing him, the cautioned statement of the appellant and the conduct of the appellant after the room was set on fire.  He argued that much as it was true that the appellant did threaten his deceased mother three days before the fire incident, and they had a bad relationship, her dying declaration could not be taken as conclusive evidence.  He augmented his submission by   citing the case of Africa Mwambogo Vs Republic [1984] T.L.R.240.   Since the offence was committed at night, the learned counsel contended, and there is no evidence of identification, the dying declaration alone could not be used to ground the conviction of the appellant.

          Mr. Akaro said the caution statement of the appellant was not voluntary as it was first repudiated and later retracted.  He said although a trial- within- trial was conducted and a finding was made that it was voluntary, corroboration was in this case required but it was lacking.  As for the absence of the appellant at the rescue operation and the burial, the learned counsel for the appellant said there was no justification for drawing an adverse inference against the appellant.   Given the bad relationship between the appellant and his deceased mother, the learned counsel said, the possibility could as well be that he was happy because his enemy was gone.  As regards the container which was said to have been used by the appellant to store the petrol used to set the house on fire, the learned counsel observed that no one saw him putting the container at the window where it was found. The learned counsel prayed that the appeal be allowed.

         Mr. Oswald Tibabyekomya, learned State Attorney who represented the respondent Republic in this appeal supported the conviction.  He was in total agreement with the learned counsel for the appellant on the evidence upon which the appellant’s conviction was grounded but he differed with him on the strength of the evidence.  The learned State Attorney was totaly convinced that the evidence upon which the appellant’s conviction was grounded taken in totality was watertight.

         Mr. Tibabyekomya admitted that the dying declaration of the appellant’s deceased mother was not sufficient to ground a conviction.  He observed that the caution statement of the appellant was properly admitted and relied upon in evidence as the learned trial judge had cautioned himself of the dangers of convicting on a retracted confession.   He referred to us the case of Hemed Abdallah Vs Republic [1995] T.L.R.  172.  On the conduct of the appellant, the learned State Attorney said he would take  it as relevant not only after the commission of the offence but also before the commission of the offence as it showed how the appellant had prepared himself to commit the offence.  Moreover, argued the learned State Attorney, his conduct corroborated his caution statement.  He prayed for the dismissal of the appeal.

In this appeal we entirely agree with the learned State Attorney that the appellant was properly convicted.  The dying declaration of the appellant’s deceased mother, we agree, was not in itself sufficient to ground the appellant’s conviction.  In the case of Africa Mwambogo supra, the deceased, as in this appeal the appellant’s mother, consistently implicated the appellant as his assailant.  The Court said that:

( i )The deceased’s persistence in implicating the appellant was mere evidence of honesty but not

correctness.

(ii) In the circumstances of the case the deceased

could have been honestly mistaken in his belief that the appellant was the one who shot him.

         However, in this appeal it is not only the dying declaration of Asha Mustafa which incriminated the appellant.  Both learned counsel appearing in this appeal admitted that the caution statement of the appellant was a confession.  At first the appellant repudiated it and later retracted it.   The learned trial judge conducted a trial- within- trial and was satisfied that the statement was made voluntarily.   He also warned himself of the danger of relying on the confession to ground the conviction of the appellant.   Following the case of Hemed Abdallah supra, so long as the learned trial judge warned himself of the danger of convicting on the retracted confession of the appellant and was satisfied that the confession was nothing but true that evidence alone was sufficient to ground the conviction of the appellant.  In Richard Lutengo Vs Republic CAT Criminal Appeal No.  29 of 1996 (Mbeya) (Unreported) the Court  quoted with approval the case of Tuwamoi Vs R. [1967] E.A.84 at page 91.The case of Tuwamoi is  one of the classic cases on repudiated or retracted confessions or both, that the trial court must be satisfied with the truthfulness of the confession in all the circumstances of the case.    Corroboration is not even necessary in law so long as caution is taken on the danger of acting on such evidence.

                  

         As already shown above, the confession was admitted in evidence as exhibit P6.  It is a detailed statement which gives the history of the appellant, the cause of the misunderstanding between him and his deceased mother, the preparations that he made before the commission of the offence and how the offence was eventually committed. In exhibit P6 it is shown that the container that was used for keeping the petrol was left at the window of the room of his deceased mother and it was picked up by PW2.  When recording the statement of the appellant, he did mention it, and as PW4 showed him the one litre container picked up by PW2, he admitted that it was the one he used for keeping the petrol that was used to cause the fire.  The statement left no doubt at all that the appellant was the one who set the room on fire, and he did that deliberately to kill his mother. The evil action of the appellant also made the rest of the deceased persons who shared the room with his deceased mother to loose their lives. Admittedly, the information in his statement  relating to his participation in the rescue operation and  the burial of his mother  is not true.  As we have shown above, PW1and PW2 together with his own witnesses DW2 and DW3 were categorical that the appellant never took part in those events. Nevertheless, the statement leaves no doubt that it was the appellant who caused the fire, and as the learned trial judge said, that was done deliberately to kill his mother.

Regarding the conduct of the appellant we are mindful of our traditions on participation of children to the funeral of their parents but with respect to the learned State Attorney, we are hesitant to say that one should draw an adverse inference on the failure of the appellant to participate in the burial of his mother, particularly when given the sour relationship that existed between him and his deceased mother.

 Considering all the circumstances of the case we have no reason to interfere with the findings of the learned trial judge.   We are satisfied that the confession of the appellant was nothing but true, that the appellant set the room on fire deliberately, to kill his mother and in that incident the other deceased persons also lost their lives.  The learned judge warned himself before relying on the confession of the appellant to convict him.

In the event we dismiss the appeal in its entirety.

         DATED at TANGA this 1^st day of July, 2008.

J.A. MROSO

JUSTICE OF APPEAL

N.P.KIMARO

JUSTICE OF APPEAL

B.M.LUANDA

JUSTICE OF APPEAL

         I certify that this is a true copy of the original.

(W. E. LEMA)

DEPUTY REGISTRAR

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