AUGUST MAHIYO v REPUBLIC 1993 TLR 117 (CA)

 

AUGUST MAHIYO v REPUBLIC 1993 TLR 117 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CRIMINAL APPEAL NO. 28 OF 1993 B

21 May, 1993

(From the conviction and sentence of the High Court of Tanzania at Arusha, Munuo,

J.) C

Flynote

Evidence - Circumstantial evidence - False, incredible or contradictory statements

given by way of explanation by the accused - Effect in reaching verdict.

-Headnote

The appellant was convicted of the murder of his wife and was condemned to death.

He appealed D against both conviction and sentence. His story on the cause of the

death of the deceased had inconsistencies. On appeal counsel for the appellant argued

that the alleged inconsistencies in the appellant's story regarding the cause of death of

the deceased did not necessarily point to the guilt of the appellant. E

Held: (i) The force of suspicious circumstances is augmented whenever the

person accused attempts no explanation of facts which he may reasonably be expected

to be able or interested to explain; false; incredible or contradictory statements given

by way of explanation if disapproved, become of substantive inculpatory effect; F

(ii) Looking at the totality of the evidence the circumstantial evidence

pointed irresistibly to the guilt of the appellant;

(iii) On the evidence the learned Trial Judge had no alternative but to find

that the prosecution had proved the charge against the appellant beyond reasonable

doubt.

Case Information

Appeal dismissed. G

Case referred to:

1. Rafael Munya v R [1953] 20 EACA 226.

Makange, for the appellant. H

Mrs. Lyimo, for the respondent.

[zJDz]Judgment

Mnzavas, J.A., delivered the following considered judgment of the court:

The appellant, Augusti Mahiyo, was charged with and convicted of I

1993 TLR p118

MNZAVAS JA

A murder and condemned to death by the High Court, (Munuo J) sitting at Moshi

on 9 August 1991.

Dissatisfied with the decision of the Trial Court he has appealed to this Court. It was

the prosecution case that the appellant on or about the 6th day of June, 1988 at Keni

Mengeni, Rombo district, B Kilimanjaro region, with malice aforethought killed one,

Gudila w/o August, his wife.

In support of the prosecution case a relative of the appellant, Justice Ndemasa, PW2,

testified in the Lower Court that on the fateful evening one, Jamila August, PW1,

daughter of the appellant, met him C as he was returning home from a cooperative

society (KNCU) and told him that her mother had sent her to call him because her

parents were quarreling. He proceeded to the deceased's house but found the kitchen

padlocked with a `viro' lock. The door to the main house was also locked. As no D

one responded to his call of `hodi' he returned home. At about 9 pm on the same

evening one, Focas, came to his house and told him that the deceased had fallen down

and collapsed. The witness hurriedly proceeded to deceased's house where he met her

husband, the appellant. On asking the appellant what had happened the appellant is

said to have told him that his wife who was E expectant had suddenly collapsed and

that he has massaged her in an attempt to revive her to no avail and that the deceased

died.

In the morning relatives and neighbours of the appellant gathered to the bereaved

house and F suggested that the deceased should not be buried before a post mortem

examination was performed to find out the cause of death. The witness told the Trial

Court that at that juncture the appellant changed his story and told the gathering that

the deceased had hanged herself in the kitchen; and showed to them a sweater which

the deceased allegedly used in hanging herself.

G The deceased's death was reported to the police and after investigations the

appellant was charged with murder; and, after hearing evidence in support of the

charge and appellant's defence that the deceased had hanged herself, the learned Trial

Judge was satisfied that the charge of murder had been proved beyond reasonable

doubt and proceeded to convict the appellant of the H offence as charged.

Before us the appellant was represented by Mr Makange, learned counsel, while Mrs

Lyimo, learned Senior State Attorney appeared for the Republic.

I Mr Makange, submitted that the learned Judge did not consider appellant's

defence that he was not at home at the time the deceased

1993 TLR p119

MNZAVAS JA

met her death and that he should have believed appellant's defence that it was when

he returned A home when he discovered that his wife had hanged herself. The

learned Defence Counsel finally argued that the alleged inconsistencies in the

appellant's story regarding the cause of deceased's death did not necessarily point to

the guilt of the appellant. B

In rebuttal Mrs Lyimo supported the conviction on the ground that the circumstantial

evidence against the appellant irresistibly pointed to the guilt of the appellant. In

support of her submission regarding the appellant's inconsistent stories the Court was

referred to the evidence of PW2, PW3, PW4 and PW5. C

We have considered the matter carefully; and, in our own view of the evidence and

the submissions by learned counsel, we are satisfied that the learned Trial Judge's

finding that the appellant murdered his wife was amply warranted by the evidence.

When asked by his relative and neighbour, (PW2), as to what had caused the

deceased's death he D initially said that the deceased suddenly fell down and died.

On suggestions by neighbours and relatives who had assembled to the bereaved

homestead that the deceased should not be buried till a post mortem examination was

performed to established the deceased's cause of death the E appellant prevaricated;

changed his story and said that the deceased had hanged herself. That he prevaricated

a good deal is evident from the testimony of not lesser a person than his close relative

PW2. Not to mention the evidence of PW3, PW4 and PW5, the police constable. F

The appellant's defence that the deceased had committed suicide by hanging was

proved to be bogus by the neighbours who saw the place the appellant alleged that

the deceased had hanged herself. In respect of this defence PW6 Dt/Corp Jacob, told

the Court in his evidence inter alia: G

`. . . The accused told me his wife had stomach pains so she committed suicide.

The accused showed me a small kitchen where she allegedly hanged herself. I

surveyed the place and the height was just 5 ft while the body appeared taller. . . . I

measured the height of the deceased; it measured 5 ft 6.' H

On being cross-examined by Mr Lyasenga, learned Counsel who represented the

appellant in the High Court; the witness said inter alia:

`The body was 5' 6' while the height at the hanging place was 5 ft.' I

1993 TLR p120

A Medical report - exhibit P1 - was to the effect that the deceased had injuries on

her neck and that the cause of death was `severe assault'.

Dealing with the question of circumstantial evidence the East African Court of

Appeal had this to say in Rafael Munya v R (1):

B `The force of suspicious circumstances is augmented whenever the person

accused attempts no explanation of facts which he may reasonably be expected to be

able and interested to explain; false, incredible or contradictory statements given by

way of explanation if disapproved, become of substantive inculpatory effect.'

C Looking at the totality of the evidence we are satisfied in our own minds that the

circumstantial evidence pointed irresistibly to the guilt of the appellant. On the

evidence the learned Trial Judge had no alternative but to find that the prosecution

had proved the charge against the appellant beyond D reasonable doubt. The appeal

is devoid of merit and we accordingly dismiss it.

1993 TLR p120

E