MOHAMED SAID MATULA v REPUBLIC 1995 TLR 3 (CA)
Court Court of Appeal of Tanzania - Dar Es Salaam
Judge Kisanga JJA, Omar JJA and Lubuva JJA
CRIMINAL APPEAL NO.193 OF 1993 B
April 11, 1994
(From the decision of the High Court of Tanzania at Dar es Salaam, Maina, J.) C
Flynote
Evidence - Contradictions and inconsistencies in testimonies of witnesses - Duty of
trial court to address them
Evidence - Burden of proof - Burden of proof in a charge of murder - Burden is
always on the prosecution to prove charge D
Criminal Law - Murder - Presumption of murder - Child stolen and never seen again
- Whether conviction for stealing the child is sufficient to conclude that the child is
dead and the person convicted of stealing the child is responsible for the death. E
-Headnote
The appellant, who was the stepfather of one Adnani Mohamed was charged with
and convicted of murder of the said Adnani Mohamed contrary to s.196 of the Penal
Code. It was alleged by the prosecution that the appellant had a family
misunderstanding with his wife, the mother of Adnani. He went to the nursery
school where Adnani was a pupil and lured him away on the pretext that he was
going to buy him some buns. Adnani has not been seen since. The appellant was F
charged with and convicted of child stealing and sentenced to three years
imprisonment. Subsequently, he was charged in the High Court with the murder of
the child and convicted and sentenced to death, essentially because he was the one
who lured away the child from the nursery school and further that since then the
child has not been seen. G
Held:
(i) Where the testimonies by witnesses contain inconsistencies and
contradictions, the court has a duty to address the inconsistencies and try to resolve
them where possible; else the court has to decide whether the inconsistencies and
contradictions are only minor, or whether they go to the root of the matter. H
(ii) Upon a charge of murder being preferred, the onus is always on the
prosecution to prove not only the death but also the link between the said death and
the accused; the onus never shifts away from the prosecution and no duty is cast on
the appellant to establish his innocence. I
1995 TLR p4
KISANGA JA
A (iii) Even if it was conclusively established that the Appellant stole the
child Adnani, that could not properly lead to the conclusion that the said child is
dead, and that the appellant is responsible for the death of that child.
Case Infomation
Appeal allowed
B No case referred to
N. Mselem, for the Appellant
J.B. Tendwa, for the Respondent.
[zJDz]Judgment
C Kisanga, J.A., delivered the following considered judgment of the court:
The appellant was charged with and convicted of murder contrary to s 196 of the
Penal Code and sentenced to death by the High Court (Maina, J) sitting at Dar es
Salaam. He has now appealed against both conviction and sentence. D
The background to this case may be set out briefly as follows: The appellant was the
stepfather of one Adnani Mohamed in that he was for some time married to Adnani's
mother (PW1) but later the marriage was dissolved at the instance of E PW1.
Adnani was born before the marriage between PW1 and the appellant, and the said
marriage was blessed with one daughter named Sauda. Upon the dissolution of the
marriage the appellant was also ordered to provide Shs 400/= per month for Sauda.
F Following the dissolution of the marriage, PW1 left the matrimonial home and
went to live with her sister in the same locality, taking with her the two children
Adnani and Sauda. It is claimed that the appellant resented the act of PW1 obtaining
a divorce against him, and on that account he nursed a grudge. Thus G within two
weeks of the divorce the appellant went up to PW1 and uttered threats to kill her. It
is further claimed that on the following day the appellant went to the nursery school
where Adnani, then aged about ten years, was a pupil and lured him away on the
pretext that he was going to buy him some buns. Adnani has nor H been seen since.
The appellant was charged and convicted in the district court for stealing the child
Adnani and was sentenced to three years' jail term. Subsequently he was charged in
the High Court with the murder of the said Adnani. As intimated earlier, he was
convicted as charged and sentenced to death, hence this appeal.
I Before us the appellant is represented by Mr Mselem, learned advocate, and Mr
Tendwa, Senior State Attorney, appears for the
1995 TLR p5
KISANGA JA
respondent Republic. Mr Mselem filed three grounds of appeal the substance of A
which was that death of the said Adnani was not proved sufficiently or at all and that
even if it was, the appellant cannot be said for certain to be connected with such
death.
The evidence adduced in support of the charge was wholly circumstantial. In B
convicting the appellant the learned Trial Judge found that Adnani was last seen alive
in the company of the appellant on 3 February 1986; he has not been seen again from
that day. Since it was more than five years following such disappearance, and since
the appellant could give no explanation of such disappearance, the learned judge,
acting under s 117 of the Evidence Act C presumed that Adnani is dead, and further
found the appellant to be responsible for such death. He found pieces of
circumstantial evidence which connected the appellant sufficiently with Adnani's
death. These consisted of the appellant's anger due to PW1's act of obtaining divorce
against him, the appellant's threat to kill PW1 and the appellant's conviction by the
district court for stealing the child Adnani and the prison sentence imposed thereon
from which the appellant preferred no appeal. D
The finding that the child Adnani was last seen in the appellant's company on 3 E
February 1986 was based on the evidence of PW3 and PW4 both being persons of
tender age of about 12 years and who had attended the nursery school with Adnani.
They testified that on the day in question the appellant, whom they did not know
before, went to their school and took Adnani away claiming that he was Adnani's
father and that he was going to buy Adnani some buns. The two children F later
identified the appellant at an identification parade arranged by the police. The Trial
Judge was impressed by the demeanor of both witnesses, he found them truthful and
said that if their evidence required corroboration then in terms of s 127(4) of the
Evidence Act each of them corroborated the other. G
Mr Mselem strongly criticised the Trial Judge for accepting and acting on the
evidence of the two children. He charged that their evidence involved inconsistencies
and contradictions which sufficiently rendered that evidence unreliable and
completely worthless. We think there is some justification in this H criticism. PW4
claimed that he could identify the appellant as the one who took away Adnani from
the nursery school because he (the appellant) had a scar on his forehead. At the time
of giving evidence in court, however, he stated that he could find no such scar on the
appellant's forehead. Then the question is, what happened to the I
1995 TLR p6
KISANGA JA
A scar? PW6 is the other child who also claimed to have seen the appellant take
away Adnani from the school. He makes no mention of any scar on the appellant.
Again the question is, if the witnesses are talking of one and the same person why
should one only, and not both, have noticed the scar? The same witness PW4 stated
that he made a statement to the police one month after seeing the appellant B at the
school. This would be around March 1986. But the said police statement which he
himself acknowledged to be his is dated 4 November 1987. That is to say, he made it
to the police well over one and a half years following the incident at C the school.
Again the question is, what is the explanation for this marked difference in the time
of making the police statement? The witness further stated that during the
identification parade at the police station there were three rows of people from which
he could identify the appellant. Yet other prosecution evidence as supported by that
of the appellant shows that there was only one row or line of people. No explanation
is given for such discrepancy.
D Turning now to PW3 he stated that during the identification parade there were
two lines or rows of people which, as already demonstrated was not true: there was
only one line. He also claimed that the identification parade was conducted in 1989
which contradicts the evidence of the police officer (PW5) who said that he
conducted the parade in 1986. E
Such were the inconsistencies and the contradictions involving the evidence of the F
two children on which the appellant's conviction was largely based. In his evaluation
of the evidence the learned judge made not a single reference to these inconsistencies
and contradictions. Nor did he make any mention of them in his summing up to the
assessors. He merely accepted the evidence of the two G children at its face value.
That was clearly wrong. He had a duty to consider the inconsistencies and
contradictions and try to resolve them if he could. Else he had to decide whether the
inconsistencies and contradictions were only minor or H whether they were such as
did go to the root of the matter. Mr Tendwa, learned Senior State Attorney, who
sought to support the conviction, submitted that the inconsistencies and
contradictions were not material and therefore were of no consequence. With due
respect to learned counsel, we think differently. Had the learned judge directed
himself and the assessors on the issue as indicated, we are unable to say for certain
that he would have found the two children truthful and would have accepted their
evidence without any reservation as he did. More so especially considering that the
children who gave evidence not on I
1995 TLR p7
KISANGA JA
oath were testifying to events which took place when they were aged only about A
seven years.
While still on the evidence of these children, there is one aspect of it which is not
consistent with the evidence of Adnani's mother (PW1). She said that on the day her
son disappeared she went to the nursery school and upon inquiring she was informed
by one teacher that he (the teacher) had not seen Adnani and that B Adnani's name
was not recorded in the daily attendance Register. The said teacher, or for that
matter, any other teacher from that school, was not called as a witness. But the
question is, if according to the two children, PW3 and PW4, C Adnani went to
school with them, why was his name not in the daily attendance register? This was
yet another feature in the prosecution evidence which was not entirely satisfactory
and which was never considered or referred to by the Trial Judge. D
It seems obvious to us that the link between the appellant and Adnani's alleged
disappearance on 3 February 1986 was most essential, but in the absence of any
cogent evidence to establish such link the charge against the appellant could not
possibly be sustained. The other pieces of circumstantial evidence available tend to
implicate the appellant only lightly or remotely. Take for instance the appellant's E
conviction in the district court for stealing the child Adnani in respect of which a
prison term of 3 years was imposed, and the fact that the appellant did not appeal.
Relying on s 43A of the Evidence Act, 1967 the learned Trial Judge found it to be
conclusively proved that the appellant stole the child Adnani. Then attaching F
considerable weight to this, the judge took the view that since the appellant's defence
to the present charge consisted of a mere denial, then in terms of s 117 of the
Evidence Act the child Adnani is properly presumed to be dead and further that the
appellant is properly to be held answerable for Adnani's death. With due G respect
to the learned judge, however, this does not necessarily follow. Even if it be
conclusively established that the appellant stole the child Adnani, that could not
properly lead to the conclusion drawn by the learned judge. For, it is one thing to
steal a child but quite another to kill it. The appellant after stealing the child may H
have passed it on to some other person or persons for purposes not connected with
killing. The appellant might or might not know what that other person subsequently
did with the child, but upon a charge of the murder of that child the onus is on the
prosecution to prove not only the death of the child but also the connection or link
between the appellant and such death. In a criminal case like this I
1995 TLR p8
KISANGA JA
A one that burden is always on the prosecution; it never shifts and no duty is cast
on the appellant to establish his innocence.
Likewise the evidence of the appellant's threat to kill PW1 does not advance the case
for the prosecution any further. In the first place, since the appellant's threat was to
kill PW1, it is not apparent why the appellant should choose to execute it on B
PW1's young and innocent child rather than on PW1 herself. In any case such threat
could not exclude the possibility of some other person or persons committing evil acts
or mischief against PW1 or her son.
C Upon our careful study of the record, we have come to the conclusion that the
evidence so far adduced fell far short of proving the charge brought against the
appellant.
We accordingly allow the appeal, quash the conviction and set aside the sentence,
with an order for the appellant's immediate release from prison unless he is otherwise
lawfully held. D
1995 TLR p8
E
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