Republic v. Ally Mohamed Ndaro, Cr app no 131 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. 131 OF 2007

THE REPUBLIC …..……………………………..…….. APPELLANT

VERSUS

ALLY MOHAMED NDARO ……….….…..……...… RESPONDENT

(Appeal from the Decision of the High Court of Tanzania

at Tanga)

(Mkwawa, J.)

dated the 12^th day of March, 2007

in

Criminal Sessions Case No. 32 of 2003

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JUDGMENT OF THE COURT

1 & 11 July, 2008

MROSO, J.A.:

        The respondent was prosecuted for murder in the High Court at Tanga.  The High Court, Mkwawa, J., acquitted him.  The Director of Public Prosecutions (DPP) was aggrieved by the acquittal and appealed to this Court.  Mr. Oswald Tibabyekomya, learned State Attorney who represented the DPP at the hearing of the appeal, argued two grounds of appeal.  In the first ground of appeal the complaint is that the learned trial judge erred in law and fact in not finding that the prosecution had proved its case against the respondent beyond a reasonable doubt.  The second complaint is that the judge erred in law and fact in believing “incredible contradictory defence evidence and disbelieving credible prosecution evidence”. Mr. Mramba, learned advocate, represented the respondent.

        The undisputed facts of the case are that on 20^th May, 2001 the respondent realized that his coconut leaves which were woven for thatching purposes (makuti) were missing.  He suspected that they may have been stolen.  Later on the same day he passed by the home of one Zaina where he saw some “makuti” which he suspected were the ones which were missing from his home.  Zaina was then with her daughter, Mwanaisha, and a grandson, Juma Bakari (PW1), lived in the neighbourhood.

        After the respondent left the home of Zaina, Mwanaisha was reported dead.  Weeks later the respondent was arrested and prosecuted after it was alleged that he murdered Mwanaisha.

        What is disputed is that Juma Bakari (PW2) claimed that the respondent assaulted his maternal aunt, Mwanaisha, when he came to the home of Zaina.  He boxed her ears and butted her head against the wall of a wattle and mud house.  The assault lasted about 15 minutes.  The head suffered a depression leading to intracranial haemorrhage and death, according to the evidence of a Doctor Abdallah Rashid Chalo (PW3).  However, according to the respondent, he never assaulted the deceased.  Zaina informed him that it was Mwanaisha (the deceased) who had brought the woven coconut leaves (“makuti”) to the home and she (Zaina) allowed him to take away with him those “makuti”.  He took them away to his home without any fuss.  Later in the evening of the same day he learned that Mwanaisha had drowned in a pond.  He was arrested two or three weeks later by the police on suspicion that he had caused the death of Mwanaisha.  But that was a frame up, he said.  His two witnesses Mwanashehe d/o Vesso (DW2) and Abdallah Magongo (DW3) told the court that the deceased fell into a well (according to DW2), or a pond (according to DW3), and died as a result at around 3 pm on 20^th May, 2001.  DW2 said the deceased was known to be epileptic. 

        Mr.  Tibabyekomya argued that the evidence of PW1 – Juma Bakari – together with the Doctor’s (PW3) evidence sufficiently proved that the respondent caused the death of the deceased.  Zaina, the mother of the deceased, had made a statement to the police on how the deceased met her death.  She died before the case came for trial.  The police officer who recorded her statement – PW2 – Detective Corporal Gustaf, attempted to tender her statement in evidence under section 34B of the Evidence Act, 1967.  the trial court admitted it as Exhibit P2 and considered it as part of the evidence against the respondent.  However, during the hearing of this appeal Mr. Tibabyekomya conceded that all the prerequisites for the admission of Zaina’s statement as evidence at the trial under section 34B of the Evidence Act, 1967 had not been met and, therefore, it ought not to have admitted as evidence.  The position, therefore, was that the prosecution case should have relied on the evidence of PW1 and PW3 only. It was Mr. Tibabyekomya's view that from PW1’s evidence it was obvious that it was the assault by the respondent that caused the deceased to suffer a fatal head injury.  As a result of that injury, there was bleeding into the brain and that, in turn, resulted in the death of the deceased, as explained by PW3 – Dr. Abdallah Rashid Chalo.  The Doctor ruled out drowning as the cause of death which would mean that the evidence from the defence witnesses was a figment of their imagination.

        The appellant’s counsel reasoned that both DW2 and DW3 said the well or pond into which the deceased allegedly fell was not deep.  It was knee deep, according to DW3 or the height of DW2.  Assuming it was true the deceased fell into the well or pond as the case  might be and in the absence of evidence that there were stones in the water the deceased would not have suffered a depressed skull.  The evidence about the deceased having died from drowning was incredible and should have been rejected by the trial court, the appellant’s counsel argued.

        Mr. Mramba, on the other hand, argued that the defence evidence was more credible than the prosecution evidence which he said should not be believed at all.  He said PW1 as an 18 years old youth at the time was not credible when he said that he watched passively as the respondent allegedly assaulted the deceased who was his maternal aunt, particularly when it is born in mind that the respondent was not armed with any weapon.  Even worse, if the respondent had inflicted fatal injuries on the deceased PW1 would not have left for his shamba without reporting the incident to the authorities or to seek medical help for her.  The logical conclusion to draw from the picture of indifference as portrayed by PW1 is that he never saw the respondent assault the deceased.

        Mr. Mramba further argued that since, according to PW1, a number of children appeared at the scene when the respondent was allegedly assaulting the deceased, why would not any of those children be called as witnesses to support the evidence of PW1?  Mr. Mramba submitted that the Court should draw adverse inference from the failure by the prosecution to call for such evidence.  The prosecution must have realized that if they called the alleged children they would have given evidence which was adverse to the prosecution case.

        It was further argued by Mr. Mramba that even if PW1 were to be believed that the respondent assaulted the deceased as he claimed, that evidence did not explain how or when the deceased sustained a depressed skull which led to her death.  The Doctor, (PW3) when he was being cross-examined by a court assessor, conceded that the depression in the skull of the deceased could have been caused by a fall, suggesting that the deceased could have sustained the head injury from a cause other than the alleged beating from the respondent.

        Finally, Mr. Mramba submitted that even if it were conceded that it was the appellant who caused the death of the deceased, the offence that was established was at worst manslaughter, not murder, because there was no malice aforethought.  When querried by the Court Mr. Mramba reluctantly agreed that it was possible to infer malice aforethought from the respondent’s act of hitting the head of the deceased against the wall of the house.

        The trial judge grappled with a critical question – how and when did the deceased sustain the head injury which resulted in her death?  We will quote him in extenso:-

“PW3 has in his evidence ruled out drowning as a cause of the deceased’s death.  He is however, emphatic that death was due to incranial (sic) hemorrhage.  I am inclined to accept the expert opinion of PW3.  But, PW3’s evidence does not help this Court in answering the question that I have already posed, namely, how did the deceased meet/come to her death?  It is plain from what I have already observed in my resumé (supra) that according to PW3 a fall could also have caused the head injuries that the deceased had sustained culminating to inter cranial haemorrhage.  This means that the injury could have been caused in the morning, if the evidence of PW1 ….. is accepted.  The same injury could also have been caused when the deceased fell down in that relevant/material period when she went to fetch water.

       It is, therefore, not clear at what point in time did the deceased sustain the injury that culminated to her death.  It is on the basis of the foregoing, and particularly because of the paucity of evidence on that aspect, that I now venture to say that I am left with a shroud (sic) of doubt and uncertainty as to how the deceased met her death on that fateful day”.

        With respect, we have been asking ourselves the same question.  As a first appellate court in this case, we are entitled to evaluate the evidence and come to our own findings of fact.  Let us begin by saying that we do not believe the evidence of the respondent or that of his two defence witnesses.  We agree with Mr. Tibabyekomya that that evidence was concocted to provide an explanation for the death of the deceased on the suggestion that the deceased was an epileptic and presumably had an attack at the time she was alleged to have fallen into the supposed well or pond.  PW1 who was 18 years old at the time of the death of the deceased said he had never known the deceased to be epileptic.  According to him, it was Zaina, the mother of the deceased, who was known to be epileptic.  Furthermore, if it is assumed for the sake of argument that the deceased actually fell into a relatively shallow well or pond as the case may be, in the absence of evidence that she fell into the water and the head hit a hard object, it is highly unlikely that she would suffer a compressed skull on merely falling into the water.  It will also be remembered that the Doctor ruled out drowning as the cause of death.

        We believe the evidence of PW1 that the respondent who must have been angry on learning from Zaina that it was the deceased who had stolen his thatching coconut mats, did not behave as meekly and humbly as he told the trial court.  We believe that he reacted violently by assaulting the deceased in the manner as explained by PW1.  The assault lasted for about a quarter of an hour and it included holding the deceased’s head and butted it against the wall of the house.  It is possible that was when the deceased got the head injury which led to the bleeding into the brain and subsequent death.

        We have used the term “possible” advisedly because, considering that the house was built of wattle and mud, the skull would not necessarily cave in when the head was hit against the wall unless, perhaps, the head was hit against a wooden pole in the wall.  But there was no such clarification.

        PW1 said in his evidence that after the respondent left the home of Zaina he also left for his shamba and when he returned later in the evening he learned that his aunt, the deceased, was no more.  He said he could leave for the shamba because “he was not very much alarmed”.  He had not even found it necessary to report the incident to elders.  Now, this is the crux of our difficulty in this appeal.

        If the deceased had sustained the fatal injury from the assault by the respondent, would her condition at the time PW1 was leaving for the shamba remain such as would make him feel there was no reason to report the incident to any authority, such as the ten cell leader?  Would the condition of the deceased be such as would  make PW1 “not very alarmed?”  One can only reply to those questions by saying “perhaps yes” or “perhaps not”.  There was, therefore, need for medical opinion on these questions.  We may know as people not learned in medicine that sometimes the effects of brain damage can be delayed, sometimes by hours and at times by weeks or even months.  So, it may well be that the deceased suffered brain damage from the assault by the respondent but she did not display signs which would cause immediate concern, thus giving false assurance to PW1.  Subsequently, as bleeding into the brain continued, deterioration set in, leading to the death.  But this is not a reliable opinion because we are not doctors.  Clarification or, shall we say, expert opinion, should have been elicited from the Assistant Medical Officer (PW3) or, perhaps, from a more qualified doctor to save us from guess-work.

        Because of the uncertainty on whether or not the deceased sustained the fatal head injury as a result of the act of the respondent, a different possibility arises that apart from the assault by the respondent, the deceased may have subsequently suffered from a different cause or assault from a different source other than from the respondent.  We need to be able to rule that out.  We have not been able to do so and the lingering doubt in our heads stays.  We are unable, like the trial judge, to say with requisite certainty that the respondent caused the death of the deceased.  It now becomes unnecessary for us to consider whether the respondent had malice aforethought.  It follows that we cannot fault the trial judge in the verdict he returned in this case.

        From our discussion above, we are constrained to dismiss the appeal.  We so order.

        DATED at TANGA this 3^rd 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.

(F. L. K. WAMBALI)

REGISTRAR