IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: MROSO, J.A., KAJI, J.A. And RUTAKANGWA,
J.A.)
CRIMINAL
APPEAL NO. 214 OF 2007
ONAEL
DAUSON MACHA………………...………………APPELLANT
VERSUS
THE
REPUBLIC………………………………………….RESPONDENT
(Appeal
from a conviction and sentence of the High Court of Tanzania
(Munuo,
J.)
dated
the 27th day of June, 2000
in
Criminal Sessions Case No.
61 of 1996
----------
JUDGMENT OF THE COURT
19 October & 30 November, 2007
RUTAKANGWA, J.A.:
The
appellant was convicted as charged by the High Court of Tanzania sitting at
Moshi on multiple counts of murder contrary to Section 196 of the Penal
Code. He was found guilty of having
murdered seven members of his own family and/or near relatives in September,
1995. The deaths occurred on different
dates but were due to a single incident which occurred on the evening of 16th
September, 1995. Having been so convicted
he was sentenced to suffer death by hanging.
Being aggrieved by the conviction and sentence he has preferred this appeal.
In this
appeal the appellant is represented by Mr. Makange, learned advocate. Mr. Makange has raised only two grounds of
appeal. These are: -
One, that the learned trial judge erred
in basing the convictions for murder on the dying declaration of the deceased
Haikasia Macha, whose truthfulness and reliability was not beyond reproach;
Two, that the learned trial judge erred
in law in shifting the legal burden of proof to the appellant.
The
respondent Republic is represented by Mr. Henry Kitambwa, learned State
Attorney. The Republic supported the convictions of the appellant and urged us
to dismiss this appeal.
But why was
the appellant charged in the first place and subsequently convicted? A clear
cut answer is not easily gleaned from the prosecution case which rested mainly
on the dying declaration of one Haikasia Macha, which was admitted in evidence
as exhibit P2 at the trial of the appellant.
The short but not simple facts of the case are as follows:
As already
indicated above seven people lost their lives.
These were Mina (a relative of the appellant), Grace (house girl),
Haikasia (appellant’s sister in law), two step brothers of the appellant and
the appellant’s two children.
According
to Haikasia’s statement to A. S. P. Alfred Mango (PW1) which was taken on 17th
September, 1995 at the K.C.M.C. hospital, on 16th September, 1995 at
about 19.45 hrs. she was at the appellant’s home. While inside together with the other deceased
and the appellant, the appellant was told by his wife that Grace and Mina had
done something wrong. The appellant and
his wife went out of the house. Haikasia
and the rest remained inside. Thereafter
Haikasia saw the appellant blow a fuel like substance from his mouth and struck
a match. Suddenly fire broke out in the
room. The appellant blocked the
door. Nobody could get out. However, Haikasia managed to push him aside
and rushed out of the house while her clothes were on fire. The rest of the occupants including the
appellant managed to get out of the house after sustaining burns of various
degrees. She concluded her statement
saying that she did not know what motivated the appellant to act as he
did. All the eight people who sustained
burns were immediately admitted at the K.C.M.C. hospital. All of them died on divers dates except for
the applicant. His survival explains his
presence in this Court, on account of Haikasia’s dying declaration.
The
appellant denied starting the fire which led to the deaths of his dear ones and
nearly caused his death as well. In an
elaborate defence he told the trial High Court that on the maternal day he had
arrived home from Kenya
There came
a time when the deceased Grace lit a wick lamp.
After filling it with kerosene, it exploded. Grace hit the lamp with her hand and it
landed on a table cloth which caught fire immediately. The fire spread rapidly. The door curtain as well as the kerosene
container caught fire. The adult people
tried to put out the fire. All was in
vain. Smoke filled the room and there
was confusion. When they finally got out
of the house every one inside had sustained serious burns including
himself. He was admitted at the K.C.M.C.
hospital and kept in the I.C.U. up to 5/10/1995. He thus denied murdering his dear ones and
expressed anguish at the loss of their lives.
The learned
trial judge and the three assessors who tried the case with her were not impressed
by the appellant’s defence. The defence
evidence indeed was fleetingly referred to in the High Court judgment, as
follows: -
“In his sworn defence the accused denied the killing. He blamed his house girl, Grace for
accidentally starting the fire when she was putting kerosene in a wick lamp”.
In convicting the appellant the learned trial judge
held: -
“………… The dying declaration is a true account of how the
accused unhappy at the report he got from his wife about Grace and Mina
douched an inflammable liquid in the house and lit it causing a big
explosion of fire in the house. To
make the victims of the fire die the accused closed and held unto the door and
as Haikasia stated in her dying declaration she tried to push the accused and
open the door for the victim in vain apparently because the accused overpowered
her. The accused therefore burnt the
seven including his 2 children and 2 step brothers in cold blood.” (Emphasis is
ours)
Since she found the dying declaration “fully
corroborated by the evidence of PW1, PW2, PW3 and PW4 who got the same story of
the accused douching the house”, the learned trial judge found “no merit
whatsoever in the defence of the accused”.
“It is not probable in those circumstances”, she concluded. This conclusion provides an appropriate
springboard for our discussion of the grounds of appeal. We shall first dispose of the second ground
of appeal.
In the
second ground of appeal the appellant is attacking the learned trial judge for
allegedly shifting the legal burden of proof to him. In support of this ground, Mr. Makange
strenuously argued that by asserting that the appellant’s “defence was not
probable but an after-thought”, she had shifted the burden of proof to the
appellant who had no duty of proving his innocence. This contention was rebutted by Mr. Kitambwa
who argued that what the learned judge did was only to reject the defence story
which she found to be an after thought.
We are in
agreement with Mr. Kitambwa. Given their
natural meaning the words complained of do not carry the impression that the
learned judge was holding that the appellant had failed to prove his
innocence. The problem with Mr. Makange
seems to us to be that he read those words in isolation from what had preceded
them. The learned judge had to make a
decision on two diametrically opposed versions on what caused the fire. She directed her attention on exhibit
P2. She concluded that it contained
nothing but the truth. As both exhibit
P2 and the appellant’s explanation could not be true at the same time, she
chose to believe the dying declaration and reject the appellant’s defence. To her, the defence could not likely be true,
(i.e. not probable) in the face of exhibit P2 which she found was “fully
corroborated by the evidence of” PW1 to PW4. We accordingly dismiss this ground of appeal
without expressing any opinion at this stage as to whether or not the learned
trial judge was right in so holding.
The first
ground of appeal cannot be easily disposed of as the second one. Admittedly the conviction of the appellant
was wholly predicated upon exhibit P2.
This is because the evidence of PW1, PW3 and PW4 was based on what they
were allegedly told by Haikasia. No.
C5698 D/Sgt. Rafael (PW2) never talked to Haikasia. His evidence was based on information
obtained through reading exhibit P2. The
evidence of Neema Maeda (PW5), a nurse at the K.C.M.C. hospital, as far as
establishing the guilt of the appellant is concerned, carries no weight at all,
in our view. We shall show why later.
All the
same, in resolving this issue we have found it necessary to pose these crucial
questions. One, is exhibit P2 a
dying declaration? Two, if it is one,
does it contain a correct and accurate account of what Haikasia told PW1? Three,
is it reliable evidence? Four, does it need corroboration? Five, if it does, was it corroborated?
In order to
answer the above posed questions convincingly, we think it is necessary first,
to answer this simple question: what is
a dying declaration? Our answer to this
question is that it is a statement made by a deceased person as to the cause of
his death. It is relevant in criminal
proceedings and admissible in evidence in cases in which the cause of that
person’s death comes into question. In
East Africa, as is the case in India
but unlike in England England
However, as was succinctly stated by the Court of Appeal
for Eastern Africa in R. v. ELIGU s/o ODEL & ANOTHER (1943) 10 EACA 90, that is not to:
“say that corroboration is always necessary to support a
conviction. To say so would be to place
such evidence on the same plane as accomplice evidence and that would be
incorrect”.
All the same, it is trite law now that apart from what are really
exceptional cases where the reliability of the deceased’s statement cannot
be impugned or questioned, corroboration has been held by all Courts in
East Africa and India, to have been necessary.
This was clearly highlighted by the Court of Appeal for Eastern Africa in the case of PIUS JASUNGA s/o AKUMU v. R (1954) 21 EACA 331 as follows: -
“We have examined the
decisions of this Court on the subject of dying declarations since 1935 and we have been unable to find a
single case where a conviction has been upheld which was based upon a dying
declaration without satisfactory corroboration”.
See
also: R v. MOHAMED SHEDAFFA & THREE
OTHERS (1984) TLR 95, AFRICA MWAMBOGO v. R
(1984) TLR 240, etc.
Inviting us to reject exhibit P2, Mr. Makange argued that as it is in a
narrative form and not in a question and answer format, there is no guarantee
that its contents are the exact words spoken by Haikasia. He also challenged the statement because it
was neither read out to Haikasia nor was it signed by PW1 who recorded it but
by PW5 only. Lastly, he vehemently argued
that Exh. P2 is not a dying declaration as it was not made spontaneously under
expectation of death so as to remove the possibility of a concoction.
Mr. Kitambwa was of the
firm view that exhibit P2 is a dying declaration as it contains the details on
the cause of death of Haikasia among others.
He firmly maintained that the declarant need not die immediately and
that it was signed by PW1 and witnessed by PW5.
At first Mr. Kitambwa impressed upon us that exhibit P2, which needed to
be corroborated, was amply corroborated by the evidence of the other
prosecution witnesses. When asked to
point out such corroborative evidence, he conceded that there was none. He accordingly abandoned his efforts to
convince us that the dying declaration of Haikasia was corroborated.
There is no doubt that Mr.
Makange was wrong in his assertion that exhibit P2 was not signed by PW1 and/or
read out to Haikasia. We have examined
the said statement and we are satisfied that it was signed by PW1, and it
contains a statement to the effect that it was read out to Haikasia. Equally untenable is Mr. Makange’s argument
that the statement must be made under the expectation of death and the
declarant should have died immediately thereafter. We have already demonstrated sufficiently that
that is not the law in this country.
From our reading of exhibit
P2 and our understanding of the law as earlier expounded on, we are of the firm
view that it amounts in law to a dying declaration. The next question is whether exhibit P2
needed to be corroborated and whether it was corroborated.
Both Mr. Makange and Mr.
Kitambwa are agreed on the legal requirement of corroboration. They say it
needed to be corroborated, in the circumstances of this case. They only parted company when it came to the
question as to whether it was corroborated. Even the learned trial judge was of
the view that exh. P2 needed to be corroborated and went on to hold that it was
actually corroborated.
We agree with both counsel
in this appeal as well as with the learned trial judge that exhibit P2 needed
to be corroborated before a conviction for murder was based on it. We are saying so advisedly because, as
rightly argued by Mr. Makange, we have no assurance that it contains the accurate
words which were spoken by Haikasia when being questioned by PW1. Again we are saying so while fully aware that
exhibit P2 contains a declaration to the effect that it was read out to her. This declaration, however, does not render
exhibit P2 to be indisputably true. This
is because, firstly, she never signed it, although for an explained good
reason. Secondly, and more importantly PW1 certified thereon that it was
recorded in the presence of PW5, as follows: -
“……maelezo haya yameandikwa
mbele ya sister NEEMA MAEDA wa idara ya upasuaji K.C.M.C. Moshi.”
The said Neema Maeda
testified as PW5. Her unchallenged evidence
was to the effect that while she was attending the eight burnt persons in the
I.C.U. ward, she saw police officers record statements from the said
patients. She never actually
participated in the interviews. She
unequivocally testified that she only signed on one of the recorded statements
“because the victim could not write or sign because she was seriously burnt.”
She went on to testify that she did not
even read the contents of that statement which she identified to be exhibit P2.
The evidence of PW5 assumes
great significance in the determination of the weight to be attached to and/or
the genuineness of exhibit P2 from two perspectives. One, it belies PW1, who indicated on exhibit
P2 that it was recorded in the presence of PW5 and he so testified in
Court. The credibility of PW1 who
recorded the statement of Haikasia, is therefore, thrown in doubt as well as
the reliability of exhibit P2. Two, the
fact that statements of some of the other victims were taken by the police and
were not tendered in court leads to a reasonable inference that they might have
contained information contradicting exhibit P2.
We think that had the learned trial judge taken these facts into
consideration in her summing up to the assessors and in her judgment, she would
probably have arrived at a different verdict.
There are other factors we
have considered which were never considered by the learned trial judge. The evidence of the appellant’s wife was
crucial in determining the truthfulness of the contents of exhibit P2. The wife could have corroborated the dying
declaration of Haikasia wherein she is shown to have told PW1 that she (the
wife) had accused Grace and Mina to the appellant and this apparently angered
the appellant, as held by the trial judge, who then “douched an inflammable
liquid in the house and lit it” after moving the wife and their baby to
safety. That the prosecution failed to call her,
lessens the weight to be attached to exhibit P2 if at all it contains any
truth.
Furthermore, we wish to
point out clearly that we have carefully and objectively scrutinized the entire
evidence on record. We did not come
across any iota of evidence going to
show that the appellant had resolved to commit suicide, otherwise he would not
have remained in the house he had allegedly deliberately put on fire. If Haikasia had told PW1 nothing but the
truth, we have failed to understand why the appellant, who was keen on
eliminating only the deceased, returned to the house and barricaded himself inside
and set the house on fire with “an inflammable liquid”. He could have easily and safely done so by
remaining outside, locking the door from outside and torching the house from
there. In that way he could have easily
eliminated everybody inside and Haikasia could not have survived to tell PW1,
what she allegedly told him. After all
dead men tell no tales. We think had the
learned trial judge directed her mind to this factor she would not have easily
dismissed the appellant’s defence as an after-thought.
In the light of the above
discussion, we are convinced that if exhibit P2 represents the statement of
Haikasia to PW1 it amounts to a dying declaration. However, for the reasons we have tried to
give and as the learned trial judge found, it needed to be corroborated. Unlike the learned trial judge, and in line
with the views of Mr. Makange and Mr. Kitambwa, we are of the firm view that
such corroborative evidence is totally wanting here. What the learned judge took to be corroborative
evidence is only evidence of consistency of Haikasia’s belief, if she even told
the witnesses so, but her repetitions were no guarantee of the accuracy or
truthfulness of what she alleged: see R
v. MUYOYA bin MSUMA (supra).
For the foregoing reasons
we allow this appeal in its entirety. The
convictions for murder are hereby quashed and the death sentence set aside. The appellant to be released from prison
forthwith unless he is otherwise lawfully held.
DATED at DAR ES
SALAAM this 1st day of November, 2007.
J. A.
MROSO
JUSTICE OF APPEAL
S. N.
KAJI
JUSTICE OF APPEAL
E.M.K.
RUTAKANGWA
JUSTICE OF APPEAL
I certify that this
is a true copy of the original.
(I. P.
KITUSI)
DEPUTY REGISTRAR
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