Makungire Mtani v Republic 1983 Tlr 179 (Ca)

MAKUNGIRE MTANI v REPUBLIC 1983 TLR 179 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA and Kisanga JJA

May 8, 1984

CRIMINAL APPEAL 16 OF 1983

Flynote

Evidence - Circumstantial - Mysterious disappearance of deceased from company of appellant - Silence of appellant - Blood stains of deceased's group found on appellant's cloth - Incriminating circumstances on a murder charge.

-Headnote

The appellant and one other person (Mzungu Bituro) were jointly charged with the murder of the deceased in this case. Mzungu, however, died in remand before the hearing started, and so the trial proceeded in respect of the appellant alone. The appellant was convicted as charged and sentenced to death.

The appellant's advocate contends among other things that the prosecution evidence was highly circumstantial to support a conviction and that the learned trial judge misdirected himself as to the burden of proof.

Held: 

(i) In the circumstances of the present case there was more than considerable suspicion against the appellant, for he refused to give an explanation of how the deceased mysteriously disappeared from his compound;

(ii) we think that the evidence of the appellant's clothes bearing blood stains of the same blood group as the deceased but different from his own was an incriminating circumstance which was properly taken into account in establishing the appellant's guilt.

Case Information

Appeal dismissed.

Case referred to:

Kimweri v R. [1968] E.A. 252

R.W.G. Rugarabamu for the Appellant.

[zJDz]Judgment

Kisanga, J.A., read the following considered judgment of the court: The appellant and one other person (Mzungu Bituro) were jointly charged with the murder of the deceased in this case. Mzungu, however, died in remand before the hearing started, and so the trial proceeded in respect of the appellant alone. The appellant was convicted as charged and sentenced to death, but he is now appealing.

The appellant and his co-accused together with the deceased worked in a slaughter house where they skinned the carcasses and took the meat to the butchery. They also lived in one house, the deceased being the one who secured the premises and then invited his colleagues to live with him there. In the evenings they used to go out together for drinks, leaving home around 6 p.m and returning at about 8 p.m. They drank the illicit liquor popularly known as "Moshi". Sometime during their staying and working together some misunderstanding arose whereby the deceased threatened to expel the appellant and Mzungu from the house, followed by a refusal by these two to leave the premises with a counter threat to "teach the deceased a lesson". However, Sadiki Iddi (P.W.2) who also lived in the same house intervened by asking the deceased to take it easy, so to speak, and allow the appellant and Mzungu to continue to live there. This appears to have settled the matter, and life appeared to be normal again.

However, only about three days later the appellant and Mzungu together with the deceased left home together at about 6 p.m., as usual, but returned at 8.p.m without the deceased. When P.W.2 inquired as to the whereabouts of the deceased, the appellant and Mzungu were rude and evasive. They retorted by asking the witness in what capacity he was asking them that question. And when the witness told them that he asked that question because the deceased was their host, they simply kept quiet, went into their room, closed the door and went to sleep. When the deceased's absence at work was noticed, the appellant and Mzungu were asked about his whereabouts but they said nothing, in fact P.W.2 thought that the appellant and Mzungu were unusually quiet that day. The deceased was found dead some three days following the evening when he went out in company of the appellant and Mzungu.

His body was found lying in a potato field with injuries on the head and legs. The appellant did not come to the scene but Mzungu did, and when he was asked why he had not reported the absence of the deceased, his fellow tenant, he took to his heels.

When later the appellant was arrested at the market place he was desperate, and when he was asked he replied that he was so desperate because he had expected to be arrested at any time. On the day the appellant and Mzungu went out last with the deceased these two wore clothes which were later found to have stains of human blood belonging to the same group as that of the deceased (AB), but different from that of their own which is "O" for the appellant G and "A" for Mzungu. At the trial the appellant chose to keep quiet in his defence, and the learned trial judge, after due review of the evidence before him, found the case proved and accordingly convicted him.

Before us the appellant was represented by Mr.R.W.G. Rugarabamu who had also conducted the defence in the high Court. The learned counsel filed and argued for grounds of appeal. The first ground states that "The prosecution evidence was highly circumstantial to support a conviction". Enlarging upon this, counsel submitted in effect that the evidence adduced before the court was such as did cast considerable suspicion only, but not sufficient to support a conviction. In support of this view he cited the case of Kimweri v R. [1968] A E.A. 252. We have given due consideration to the submission by the learned counsel but we are not persuaded by it. We think that in the present case there was more than considerable suspicion against the appellant. The deceased was last seen alive in the company of the appellant and his co-accused, now deceased. The appellant refused to give any explanation of how the deceased mysteriously disappeared from his company. If the appellant had nothing to do with the death of the deceased, one would certainly expect him to say at what point he parted company with the deceased that night after C having set out from home together. But to keep quiet in those circumstances was most strange. Mr. Rugarabamu suggested that the appellant's silence that night might be explained on the basis that appellant was drunk when he returned home that night. We cannot accept such view. There was no evidence of drunkenness. The only evidence on D this issue was to the effect that the trio used to go out together to drink and that they drank "Moshi". But this alone is not sufficient from which to conclude that on this particular night the appellant, in fact, drank "Moshi" and that in fact he returned home drunk. He may have had no drink at all or, if he had some, he may not have been drunk. E Assuming that the appellant had a drink that night, if he had enough senses to be able to find his way back home, it is inconceivable that he would not be in enough senses to say how he parted company with the deceased. We think that there is nothing on the evidence to support the view that the appellant was drunk that night.

Mr. Rugarabamu further contended that the appellant's silence, when he was asked at his work place about the deceased's disappearance, could be explained on the basis that the appellant was perplexed. With due respect to the learned counsel, this is  incomprehensible. If he was perplexed but innocent, this was all the more reason for him to disclose how he parted company with the deceased so that appropriate steps could be taken to trace the deceased and thus solve the mystery surrounding his disappearance which was the source of the perplexity. We think that on both these occasions one would certainly expect the appellant to give an explanation how he parted company with the deceased after he had set out from home with him that evening. It is most odd, however, that he did not.

Then there is the evidence that at the time of his arrest the appellant was desperate and that, when asked, he replied that he was so desperate because he had expected to be arrested. According to Mr. Rugarabamu, the appellant expected to be arrested because his colleague, Mzungu, had been arrested. If the appellant was innocent, why should he think that Mzungu's arrest would automatically lead to his own arrest? One would expect him to be ready to explain his innocence to the police and thus clear himself, but it is most strange that in those circumstances Mzungu's arrest should make him desperate and cause him to anticipate arrest. Such conduct cannot be said to be consistent with his innocence.

Then there was the evidence that the clothes worn by the appellant on the material night had stains of blood belonging to the same group as that of the deceased but different from that of his own. Dealing with this aspect of the evidence, the learned trial judge in the course of his judgment stated.

The conclusion thus reached was that the T-shirt worn by the accused at the relevant time not only had blood stains, but they were human blood of group AB i.e. the deceased's group. The accused was thus effectively linked to the killing of the deceased until he offered an explanation as to how he came to be stained with the deceased's blood.

This was the subject of a vigorous attack by Mr. Rugarabamu who contended that it amounted to shifting the burden of proof to the defence. Counsel's argument was that the evidence merely showed that the stains found on the appellant's clothes were of the same blood group as that of the deceased, but it was not conclusive that those blood stains, in fact, came from the deceased. Such blood stains, counsel went on, may have come from F some person other than the deceased but of the same blood group as the deceased. We can find no merit in this argument. We think that the evidence of the appellant's clothes bearing blood stains of the same blood group as the deceased but different from his own was an incriminating circumstance which the trial judge properly took into account in considering the appellant's guilt. The reasoning of the learned trial judge was that considering the other circumstances, such as, the mysterious disappearance of the deceased from the appellant's company, the appellant's complete silence when asked H about it on different occasions and his being desperate and anticipating arrest over it, led to the conclusion that the blood stains in question were those of the deceased. In other words, in these circumstances that was the only reasonable conclusion to arrive at unless the appellant gave some explanation to the contrary. We cannot say that the learned judge was wrong. We think that he properly directed himself on the matter.

In his second ground of appeal Mr. Rugarabamu criticised the trial judge for finding that the deceased sustained extensive injuries from which he must have bled. Counsel took the view that there was no evidence that the deceased sustained any lacerated wounds from which he could have bled. This was in an attempt to fortify his earlier submission that the blood stains found on the appellant's clothes came not from the deceased but from someone else of the same blood group as the deceased.

We think that this submission is equally devoid of merit. There was evidence that the deceased sustained head injuries including fractures of the skull leading to blood oozing from inside the cranial cavity. He also sustained injuries on the legs. We think that the learned trial judge was perfectly entitled to find that such injuries as sustained by the deceased must have led to bleeding externally thus making it possible for the appellant to get stained by such blood.

In the third ground counsel complained that the trial judge erred in shifting the burden of proof to the appellant when he remarked in his judgment that the appellant did not attempt to explain the incriminating blood stains on his T-shirt. We have already said something about the burden of proof when dealing with the first ground of appeal, and now there remains very little to be said. When evidence has been adduced which, as in this case, implicates the appellant in the offence charged, then if the appellant is innocent, one would certainly expect him to give some explanation, for the obvious reason that it would be in his best interest to do so. It is not unusual for an innocent person to keep quiet when allegations are being or have been made against him showing or seeking to show that he is the offender. So that in such circumstances where the appellant would be G expected to give some explanation but he does not, we think that the court may properly comment on such silence, as it did in this case. But this, in our view, does not amount to shifting the burden of proof to the defence. All that the court said was that it was strange that the appellant should have kept quiet in such circumstances. We H therefore think that the complaint against the trial judge on this point is not well founded.

The last ground of appeal is a general one alleging that the conviction was against the weight of evidence. Having regard to what we have said in connection with the earlier grounds, our reaction to this ground should be apparent. Although the case was based I entirely on circumstantial evidence, we are satisfied that the appellant's guilt was proved to the requisite standard. The incriminating pieces of circumstantial evidence, such as we have briefly referred to in the preceding paragraphs, lead to the only reasonable conclusion that the appellant took part in committing the offence charged. In the result we uphold the conviction and accordingly dismiss the appeal. B

Appeal dismissed.

1983 TLR p186

C