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
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
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
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 Econviction 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
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