HAMIDU MUSSA THIMOTHEO AND MAJIDI MUSSA THIMOTHEO v REPUBLIC 1993 TLR 125 (CA)

HAMIDU MUSSA THIMOTHEO AND MAJIDI MUSSA THIMOTHEO v REPUBLIC 1993 TLR 125 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CRIMINAL APPEAL NO. 23 OF 1993 B

21 May, 1993

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

J.) C

Flynote

Evidence - Circumstantial evidence - Unbroken chain of circumstantial evidence

linking the appellants to the death of the deceased - Whether can ground a

conviction. D

-Headnote

The appellants were charged with and convicted of the murder of their father, and

sentenced to death. The convictions rested solely on circumstantial evidence which

the learned Trial Judge considered irresistibly pointed to their guilt. The appellants

appealed against both conviction and E sentence arguing that the circumstantial

evidence on which they were convicted did not irresistibly point to their guilt.

Held: The chain of circumstantial evidence linking the appellants to the death of their

father is unbroken and therefore leads to no other conclusion but that the appellants

were responsible for the death of their father. F

Case Information

Appeals dismissed.

No case referred to.

Makange, for the appellants. G

May 21, 1993.

[zJDz]Judgment

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

The two appellants were charged with and convicted of the murder of their father

one Mussa Thimotheo. There was no direct evidence linking the appellants to the

killing. Their convictions rested solely on circumstantial evidence which the learned

Trial Judge considered irresistibly pointed to their I guilt. We sentenced them to

death. They

1993 TLR p126

MFALILA JA

A lodged this appeal against both their convictions and sentences of death.

The deceased Mussa Thimotheo was employed by the Tanzania Railways Corporation

and lived in the Railway Quarters at Tingatinga Village in Mwanga district. His sons

the two appellants lived in a B separate house outside the Railways Quarters, but

having no utensils of their own they used to take their meals at the deceased's house.

On 2 October 1985 after working hours he left camp on his bicycle telling his

workmate Shabani Nassoro (PW2) that he was going to the shopping centre at C

Handeni. This was the last time that he was seen alive for he never returned to the

camp. On 4 October 1985 Shabani Nassoro became concerned for the non-appearance

of the deceased both at his residence and at work. He therefore reported the fact of

the deceased's disappearance to their superior at work. The following day, a search

alarm was raised and the search for the deceased D began. The appellants were asked

as to the whereabouts of their father, but they both denied any knowledge. In this

they were not believed, they were therefore arrested and handed over to the police.

Later on the same day the body of the deceased was seen floating in the nearby river

and E recovered. Word was sent to the police authorities regarding the recovery of

the body of the missing Mussa Thimotheo. The following day police arrived and

collected the body. The post mortem examination revealed multiple cut wounds one

of which caused a compound fracture of the occipital F bone exposing the brain. The

cause of death was certified to be haemorrhage and shock. At this time the appellants

were already in police custody, but the police party on the suggestion of the

deceased's relatives passed by the appellants' house and conducted a search. This

search was witnessed by neighbours such as Shabani Nassore (PW2) and Shabani

Juma (PW3), relatives such G as Hamisi Juma (PW4) and Naulid Thimotheo (PW7)

and a cell leader Athuman Mohamed (PW5). All these witnesses testified that in this

search they recovered the following items wrapped in a sack and hidden under the

bed in a room used by the appellants: two bicycle tyres, one bicycle stand, five H

spanners and one panga which had blood stains. Hamisi Juma (PW4) identified the

panga to belong to the second appellant Majidi while Athumani Mohamed (PW5)

identified the bicycle parts to be parts from the bicycle of the deceased, explaining

that he used to repair it. When later the I appellants were shown these items by

Detective Godwin (PW6), they admitted that the panga was theirs but with regard to

the blood on it they gave different explanations. While the

1993 TLR p127

MFALILA JA

second appellant explained that the blood on the panga was animal blood from the

Dik Dik they had A killed during a recent hunt, the first appellant said that he did

not know how the panga came to be blood stained.

In their respective defences both appellants denied any involvement in the killing of

their father. The B first appellant explained that he first heard of the deceased's

disappearance from home on 4 October 1985 when he was told by Hamisi Juma

(PW4) that the deceased had not been seen at home since 2 October 1985 and that a

search for the deceased would be mounted on the following day 5 C October 1985.

But he said that he was arrested on 5 October 1985 before the search began. He

explained that he did not consider the deceased's prolonged absence from home

unusual because he used to do that whenever he want to his shamba. He also denied

the existence of any bad relationship between him and the deceased as deposed by his

uncle Maulid Thimotheo (PW7). On D the allegation that he used to eat at the

deceased's house he denied saying that more often than not he took his meals at the

home of his aunt Chausiku Thimotheo who gave evidence as (DW1). But as she gave

evidence at the instance of the court, we whink in fairness she should have been

labelled as a Court witness (CW). Lastly he denied any knowledge or connection with

the articles allegedly E recovered from their house.

The second appellant Majid also denied any involvement in the killing of their father

saying that he had left home on 2 October 1985 to go and visit his uncle Maulid

Thimotheo (PW7) but he did not find him F at home. Only his aunt Chausiku was

present. He remained there until 4 October 1985 when he returned home only to be

informed that their father had not been seen since 2 October 1985. This he said did

not worry him because it was not unusual for the deceased to be absent from home

for G several days whenever he went to his shamba. But he said that he was arrested

on the following day 5 October 1985 and added that he knew nothing about all the

articles allegedly recovered from their house.

In a well written and reasoned judgment the learned Trial Judge held that although

there was no H direct evidence linking the two appellants to the death of the

deceased the circumstantial evidence adduced by the prosecution against them was

such that it only pointed to their undoubted guilt.

In this appeal the appellants complained that the circumstantial evidence on which

they were convicted did not irresistibly point to their guilt. I

1993 TLR p128

MFALILA JA

A The question then is what is the circumstantial evidence which was used to

convict the appellants was it such that it pointed to no other conclusion but their

guilt?

The first link in the chain of circumstantial evidence are the items which were

recovered after a B search of the appellants' house. These included a pair of bicycle

tyres, a bicycle stand, five spanners as well as a panga with blood stains. There was

evidence which was not gainsaid that the appellants owned no bicycle or any other

mode of transportation. It was therefore surprising that bicycle parts should have

been found in their dwelling house. Their late father had a bicycle which he used on

the C fateful day to travel to Handani shopping centre. The panga was blood stained.

Again in their evidence they denied any knowledge of this panga. But during

interrogation they had admitted ownership although they differed in explaining the

presence of and the nature of the blood on the D panga. The second appellant said it

was animal not human blood. But the Government Chemist confirmed in his report

that it was human blood although its group could not be determined due to

deterioration. The first appellant said that he did know how the panga came to be

blood stained. Independent witnesses identified the panga that it belonged to the

second appellant but that both of E them were using it. Hence although the

identification of the bicycle parts by the bicycle repairer Shabani Juma (PW3) might

attract some doubts, that of the panga found hidden under the appellants' bed and

blood stained with human blood was beyond question. At the hearing of this F

appeal, Mr Makange, learned counsel who advocated for the appellants, pointed out

what he called co-existing circumstances which tended to weaken the inference of

guilt from the circumstantial evidence assembled against the appellants. Firstly, with

regard to the articles found and recovered G from the appellants' dwelling house he

said that all these items were recovered from the appellants' house in their absence

and that since the search was made a day after their arrest, there was every possibility

that these articles could have been introduced into the house by someone other than

the appellants during their enforced absence, particularly so he said, because the

appellants' dwelling H house was semi-finished without any meaningful locking

mechanism. Secondly, he said that the blood on the panga was not identified to be the

same group as the deceased's. Thirdly, he said that when the alarm was raised, the

appellants neither ran away nor panicked. The learned Trial Judge I considered at

length these likely weaknesses but rejected them for the reasons which he gave and

we agree with him. We

1993 TLR p129

MFALILA JA

do not see how anyone who was bent on incriminating the appellants could then

have proceeded to A hide under the bed the very incriminating articles. As to the

identification of the blood group on the panga this would have carried some weight if

the appellants had admitted that it was human blood and explained where it came

from. But according to them, it was either animal blood or they did not B know how

and with what blood the panga came to be stained. Hence, this, added to other

circumstances to be narrated point to the only conclusion that the blood on the panga

must be that of the deceased Mussa Thimotheo. Blood grouping in the laboratory is

not the only way of linking a sample of blood to the subject in issue. Whereas in this

case this is lacking for one reason or other C deductive methods can be used. With

regard to the point that the appellants neither panicked nor ran away when the alarm

was raised, we think it has no merit because running away would have been the most

stupid thing to do. Their own father was dead and they had already arranged their

line of D defence. As to panicking, the cell leader Athuman Mohamed (PW5) stated

that the second appellant was uncertain and unsettled in his behaviour as he tried to

answer the questions as to what had happened to their father on 2 October 1985. E

The second link in the chain of circumstantial evidence is the conduct of the

appellants. Firstly, they did not report the disappearance of their father with whom

they were in daily contact at least during meal times. They showed no concern and

remained silent and the matter was raised by neighbours and co-workers. They

explained that to them the deceased's disappearance was not unusual as he F had

done so several times previously whenever he went to his shamba. This explanation

seems to us untenable. The deceased was a regular employee of the Railways

Corporation. How then could it have been possible for him to disappear from the

camp for several days thus absenting himself from G work for so many days. If this

absenteeism had been a regular routine of the deceased, he would have got himself

into trouble with his employers a long time back. We are therefore satisfied that the

appellants did not raise an alarm over their father's disappearance or even report it at

this work place H because they knew what they had done to him. Secondly, they

told a number of lies in a situation where, had they been innocent, telling the naked

truth was the most natural and easiest thing to do. They lied about their presence at

the camp when their father left on 2 October 1985. The first I appellant said that the

last time he had had contact with the deceased was on 20

1993 TLR p130

MFALILA JA

A September 1985, and that he only went back to the deceased's house on 4 October

1985 when he heard of his disappearance. All this time he said he was eating at his

aunt's place. The second appellant explained that he had been away from home since

2 October 1985 and that when the B alarm was raised he had just come back. But

their close neighbour Shabani Nassoro (PW2) who saw the deceased as he left for

Handeni on 2 October 1985, confirmed that both appellants were at the camp when

their father left. Shabani Juma (PW3) said that the appellants were lying when they

claimed that they were not in the village at the relevant time. They also lied when

they denied eating C food regularly with their father claiming that more often than

not they used to take their meals at their aunt's house. Their aunt Chausiku

Thimotheo vehemently denied this allegation saying that even at the time when she

lived in the village and this was a long time back, the appellants hardly visited her

and that ever since she had been living in Tanga. It is a truism that lies by the accused

on D their own can never form the basis for a conviction, but certainly they can be

part of a chain. In this case, the only reason why the appellants sought to distance

themselves from the deceased, denying that they regularly took meals at his house

was to break the link to prevent people from wondering E why they failed to note

and report their father's disappearance, someone with whom they were in daily

contact at meal times.

The third and last link was the motive. The deceased's brother Maulid Thimotheo

(PW7) said in his F evidence that the deceased had told him that the appellants had

threatened to kill him allegedly because they resented his act of selling the family

cattle. The deceased had told him that the situation was so bad that they were hardly

on talking terms. PW7 had promised the deceased that he would come and try to talk

to him and his sons. But the deceased was killed before he undertook G this mission.

The appellants denied the existence of any feud between them and their father. But

we believe that PW7 could not have invented this story. Indeed, the appellants

themselves had at one time made a similar complaint to him regarding the bad

relationship obtaining between them and their father.

H Accordingly like the learned Trial Judge, we are satisfied that the chains of

circumstantial evidence linking the appellants to the death of their father is unbroken

and that therefore it leads to no other conclusion but that the appellants were

responsible for the death of their father. Their convictions and I sentences were in

the circumstances well founded. We dismiss both appeals in their entirety.

1993 TLR p131

A