CRIMINAL SESSIONS CASE NO

IN THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA CRIMINAL SESSION CASE NO. 5 OF 2023

REPUBLIC

VERSUS 1. TALIKI SAIDI KIPENDE @ TULO 2. ALLY MUSSA TWAHA@ KILINGO @ BABU ALLY Date of last order: 21.08.2024 Date of Ruling: 23.08.2024

RULING Ebrahim, J. After closing of the prosecution case, this court finds it appropriate to appraise the entire prosecution evidence for the purpose of satisfying itself as to whether prosecution side has managed to establish a prima facie case against the 2nd accused person, namely Ally Mussa Twaha@ Kilingo @ Babu Ally to require him to enter his defence in terms of Section 293 (2) of the Criminal Procedure Act, CAP 20 R.E. 2022 (The Act). Section 293 (2) of the Act, requires the trial court to call upon the accused person (s) to defend himself/herself if at the conclusion of the Page 1 of 25 prosecution cose the court considers that there is evidence that the accused person (s) committed the offence or any other minor or alternative offences under the provisions of Section 30Q to 309 of the Act. On the other hand, under section 293 (1) of the Act, if the court considers that there is no evidence that the accused or any one of several accused persons committed the offence or any other minor or alternative offence, it shall record a finding of not guilty. Initially, the 2nd accused person together with the 1st accused were charged with the offence of murder. It was alleged by prosecution that on 27.06.2022 at Kitumbini Village within Kilwa District, Lindi Region they murdered one Muhidini Saidi Makere. The trial of this case began on 25.07.2024. On that day, the first accused

person offered to plead guilty to a lesser offence of manslaughter. Prosecution agreed to the offer and substituted the murder charge to manslaughter on both accused persons. The first accused i.e., Taliki Saidi Kipende pleaded guilty to manslaughter. After hearing the facts of the case and considering the aggravating as well as the mitigating factors, I unconditionally discharged the 1st Page 2 of 25 accused person i.e., Talik! Saidi Kipende© Tulo and the trial against the 2nd accused person, i.e., Ally Mussa Twa ha @ Kilin go @ Babu Ally was adjourned to another date. On 20.08.2024, the trial for manslaughter against Ally Mussa Twaha @Kilingo @ Babu Ally (herein after referred to as “the accused") began. To prove the case against the accused, prosecution called six witnesses whom the essence of their testimonies reflects here-under. The first prosecution witness (PW1) was Mr. Haji Kipande Selemani, relative of Muhidihi Saidi Makere (deceased). PW1 told the court that he has been living with the deceased from 2009 to 2022. He explained the series of events on 26.06.2022 from around 1900hrs when he called him and they arranged to meet with the deceased at Maalim Sefu Garden, Kilwa Kivinje. After he had called the deceased, he told PW1 that he was at Mama Gonso drinking alcohol and he will see him after he gets back from the pombe shop. He said the deceased arrived at their

rendezvous around 2015hrs with injuries on his eye and he had loose teeth. He testified that the deceased told him that while at Mama Gonso he was beaten and robbed his phone by the Page 3 of 25 accused and Taliki @TulO (1st accused). While seated at Maalim Sefu, they saw the accused and Taliki @Tulo (1st accused) passing by and they followed them. He said the deceased asked them as to why they took his phone and beat him of which they denied and they started quarreling. It was after hearing the noise, one Ramadhani Athumani @ Benja (PW2) approached and asked about their quarrel. PW1 told him that they have beaten the deceased and taken his phone. PW2 told PW1 that he has purchased a phone from the accused and Taliki @Tulo (1st accused) and upon seeing the phone, PW1 recognized the phone because he was the one who had purchased it. He described the phone as Tecno with faded gold keypad with a black screen. The accused and Taliki @Tulo insisted that it is theirs which led to the phone being switch on and PW1 saw his number. He said PW2 gave him the phone and the accused persons started to attack both of them so that they could take the phone. On seeing that it was PW1 who had the phone, they stopped attacking the deceased and beat him with the bench on his head and he started bleeding. PW1 left and went to the police station then to the hospital where he was stitched. He

said, he left behind the deceased being badly beaten and had fallen Page 4 of 25 down. He mentioned among the people who went to assist them who were Selemani Mningo, Juma Kipande and Ramadhani Athumani Haji @ Benja (PW2). PW1 testified further that he returned to the scene around OiOOhrs at night where he was told that the deceased was taken by Badi Mohamed Badi (PW3). In the morning of 27.06.2022, PW1 went to see the deceased at his home and found him laying on the floor unresponsive. He said he saw insects on the deceased’s eyes and blood clot. He went to call his uncle one Selemani Ngwale who lives nearby and when he looked at the deceased, he concluded that he was dead. PW1 and Selemani Mchingila, deceased’s brother went to report the matter at Kilwa Kivinje Police station and they told the police about the previous day incident that occurred at Maalim Sefu Garden. He said the established cause of death was due to blood clot in the brain. Later in the evening i.e., on 27.06.2022, PW1 said he was informed by the police that the accused has been arrested and he was found with the deceased's mattress at his place. Responding to cross examination questions, he said he had not mentioned his telephone number and insisted that he was attacked Page 5 of 25 with a bench by accused on the face and by then Taliki was on the scene. Ramadhani Athumani Haji testified as PW2. According

to him, he purchased a phone- Techno from the accused and Taliki for TZS 10,000/- on 26.06.2022 around 2015hrs when he was at the beach - “kijiweni”. Subsequently, the deceased and PW1 also went to the beach “kijiweni” and the deceased complained that the accused and Taliki had beaten him at mama Conso and robbed his phone. PW2 showed the phone he had purchased from the accused and Taliki to the deceased and he recognized it. PW2 gave the phone to PW1, the brother of the deceased. An argument erupted whereby the accused and Taliki wanted to take the phone from PW1. He said the quarrel worsened and the accused attacked PW1 with a bench. He said the accused was also holding a broken bottle. At that moment Taliki punched the deceased and he fell down and became unconscious. He testified that Taliki punched the deceased on the jaw and ear lobe area. The deceased's friend Badi Mohamed (PW3) appeared and carried the deceased with bodaboda and took him home at Kitumbini. He said because the deceased was drunk and it Page 6 of 25 was night time, people who had gathered at the scene advised that he should not be taken to the hospital because he won’t get treatment. He testified further that Taliki ran away heading to the beach and they could not apprehend him. It was the next day that he received information on the death of Muhidin. The accused arrested by the police and Taliki is

nowhere to be seen. Responding to cross examination questions, he said after handing the phone to Haji, there erupted a quarrel. The accused and Taliki were grabbing the phone from Haji and by then the deceased has already been beaten and fell down. He insisted that he was present and saw all that happened. He said, he: did not see the accused @ Babu All attacking the deceased and that the accused only beat PW1. He responded also that when the deceased arrived with his brother he was drunk and he was not injured anywhere. The third prosecution witness was Badi Mohamed Badi (PW3) who was the deceased’s friend. His testimony was rather short. He told the court that on 26.06.2022 around 2000hrs he went to the beach to collect his parcel at Shamte’s shop. On reaching at the beach, he found the deceased laying down and a person named Mayayu told Page 7 of 25 him to take the deceased home. He saw the accused drunk and holding a bottle. He said he hired a “bodaboda” and took the deceased home. He laid him on the mattress and went to inform the deceased's brother called Selemani that his brother has had a problem and he is at him home. He received information concerning the death of the deceased on 27.06.2022 around 0900hrs when he also heard that the mattress has been found at the accused’s place. On cross examination, he admitted that he was not present when the deceased was beaten

and fell down. Dr. Khalid Bakari Ali (PW4) performed a postmortem examination of the body of the deceased on 27.06.2022 around 1130hrs. He examined the deceased and did physical inspection. He said he observed that the left side of his face and ear was swollen. He observed also that he had a small wound on the ear and there was a dried blood same as on the nose. The deceased also had dried blood on the mouth and one extracted tooth. PW4 confirmed before the court that he examined the deceased from head to toe and did not see any other injury apart from the ones he observed. Page 8 of 25 He explained the cause of death of the deceased was due to traumatic brain injury with brain hemorrhage caused by being beaten with a blunt object. He tendered a postmortem examination report of the late Muhidin Said Makere which was admitted as exhibit “PEV. G.4070 Detective Corporal Maneno (PW5) Sketched a map of the crime scene. He attested that on 27 th June 2022, he accompanied the OC-CID of Kilwa, SP Kimaro to Kilwa Kivinje on a murder incident. Upon arrival at Kitumbini Street, they conducted initial interrogation and noticed that despite the body being inside the house, the deceased was beaten at the beach on the night of 26th June 2022. Following such observation, he sketched a map of where the body of the deceased was found and the map where the incident occurred. He said all maps were

witnessed by PW1 and he signed. He tendered a sketch map of where the body of the deceased was found which was admitted as “Exhibit PE2”. Upon being shown Exhibit PE2 during cross examination, PW5 admitted that he sketched two maps. The first one was of where the fight occurred and the second one where the body of the deceased Page 9 of25 was laying. He admitted however that Exhibit PE2 only shows where the deceased’s body was laying. The last prosecution witness was F.4346 Detective Sargent Philbert who testified as (PW6). He testified that on 27th June 2022, he was assigned by OC-CID - Kilwa to investigate the case with reference no. KLK/IR/2017 of 2022. Together with other police officers, they went to inspect the crime scene where the alleged murder occured. On arrival at the scene he saw the body of the deceased lying on the floor of his house. He interviewed witnesses including the deceased's relative and recorded their statements. Subsequently, they arrested the accused persons. PW6 said he was the one who recorded the cautioned statement of Taliki Soldi Kipende who told him how they later followed the deceased at home, beat him until he was unconscious and stole the mattress. He testified also that he asked Taliki about the phone lines and he said that the lines where at Kivinje on the business stole on the roof. They went to seize the lines. Page 10 of 25 Responding to

cross examination questions, PW6 said he believes the accused and Taliki are involved after finding the deceased's mattress at Babu All's house which they seized but he admitted not to have seen it in court. Responding further to the questions asked by the court, PW6 admitted to have recorded Taliki's cautioned statement and that what he testified before the court on the information he was told by Taliki is what was recorded in his cautioned statement. The above is the substantive summary of all prosecution witnesses. Before appraising the evidence on record, I find it pertinent to firstly establish what amounts to a prima facie case. The meaning of prima facie has been defined in the case of Ramanalal Trambaklal Bhatt V R [1957] EA 332 at page 334 that: “Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that “a primp facie case" is made out if, at the close of the prosecution, the case is merely one ‘which on full consideration might possibly be thought sufficient to sustain a conviction’. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is ‘some evidence, Page 11 of 25 irrespective

of its credibility or weight, sufficient to put the accused on his defence'. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson, J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defense has been heard, it may not be easy to define what is meant by a ‘prima facie case', but at least it must mean one in which a reasonable tribunal properly directing its minds to the law and the evidence could convict if no reasonable explanation is offered by the defense”. Ramanalai principle was further applied in Republic V Kakengele Msangikwa [1968] HCD No. 43 where it was held that a prima facie case must at least be one which a reasonable tribunal could convict if no evidence is offered by the defence. It was again held by the High Court in the case of R V Edward Mongo [2003] TLR, page 45 at page 46 that: “A submission of no case to answer may properly be upheld when there has been no evidence to prove an essential element in the offence charged, or where the evidence adduced by the prosecution has been so discredited as a result of cross- examination or is so manifestly unreliable that no

reasonable tribunal (if compelled to do so) would at that stage convict” Page 12 of 25 From the above established principles, the question before this court now is whether the accused person should be called to enter his defence? In determining the same, the underlying principle here is that before the accused can be asked to make his defense, there must be adequate evidence that the accused can deny or traverse. Otherwise it would be wanting the accused to fill in the gaps in prosecution case which is contrary to the spirit of section 293(1) of the Criminal Procedure Act, CAP 20 RE 2022. Thus, there arise an issue as to whether there is adequate prosecution evidence brought before this court which the accused can either deny or traverse. As the evidence produced in court reveals, there were two eye witnesses who testified before the court i.e., PW1 and PW2 the incident that occurred at the beach. Nevertheless, there is no any witness who testified on what exactly happened at Mama Conso's pombe shop on the alleged beating mounted to the deceased. PW1 said when he met the deceased around 2015hrs of the incident date, the deceased had injuries on his eye and loose teeth and he told him that PagelS of 25 he was beaten by the accused persons. However, PW2 testified that when he saw the accused he did not have any injuries. Again, PW4, a doctor who performed postmortem examination

of the body of the deceased said apart from the injuries of the left side of the deceased face and the small injury on the ear, the deceased did not have any other injury. If at all, PWl’s testimony that all the deceased’s teeth were loose and he had an injury on the eye is not supported by the doctor - an expert nor PW2’ testimony. Testifying on the fight at the beach on 26.06.2022, PW1 said that when PW2 gave him the phone, the accused persons started to attack both of them so that they could take the phone. However, on seeing that it was PW1 who had the phone, they stopped attacking the deceased and beat him with a bench on his head and he started bleeding. PW1 left and went to the police station then to the hospital and left behind the deceased being badly beaten and he had fallen down. The testimony of PW1 generally suggests that they were simultaneously beaten by both accused persons. On the contrary, PW2 said that the accused attacked PW1 with a bench and at that Page 14 of 25 moment Taliki punched the deceased on the jaw and ear lobe area. The deceased fell down and lost conscious. The part of the body that PW2 said Taliki punched the deceased, is the same that was observed by PW4, PW2 said after Taliki punched the deceased he ran away the fact that was corroborated by PW6 that Taliki was arrested at Dar Es Salaam three days after the incident. It follows that the

evidence of two direct prosecution witnesses on the same scene as to who exactly inflicted the injury causing the death of the deceased differs. PW1 provided a general statement. PW2 clearly stated that it was Taliki who inflicted the fatal injury. Thus, the evidence of PW2 shows that the accused did not beat the deceased but he attacked PW1. Again, PW1 said that later in the evening of 27.06.2022 he was informed by the police that the accused has been arrested and he was found with the deceased's mattress at his place. When testifying before the court, PW6 said they went to search the house of the accused and found the mattress of the deceased which was identified by PW1.1 would not go further into the issue of search and seizure at this stage. However, since the assertion by both PW1 and PW6 that the accused killed the deceased because he was found Page .15 of 25 with the mattress of the deceased, I find that in the circumstances and facts of this case, either a documentary proof that indeed the mattress was found in the house of the accused or tendering of the mattress before the court was pertinent. This is to prove the prosecution assertion of facts considering both PW1 and PW6 said that PW1 went to identify the said mattress. Thus, the allegation that the accused: was found with the mattress of the deceased which implicates him, is a mere assertion. The testimony of PW3,

the deceased's friend does not also suggest that that it was the accused who caused the death of the deceased because apart from hiring a bodaboda and take the deceased home, he did not witness the incident. Everything else was hear say save for the fact that he went to tell the deceased’s brother about what had befallen the deceased. Dr. Khalid Bakari All (PW4) established the cause of death that the deceased died due to traumatic brain injury with brain hemorrhage caused by being beaten with a blunt object - exhibit PEI. However, his testimony alone does not link the accused with the commission of Page 16 of 25 the offence. The some goes wifh the testimony of PW5, a police officer who sketched a mop of the crime scene- exhibit PE2. As to the testimony of F.4346 Detective Sargent Phiibert who testified as (PW6); firstly, his testimony mainly based on hear-say and I would not belabor to reproduce it. PW6 said he was the one who recorded the cautioned statement of Taliki Saidi Kipende (1st accused). Taliki admitted to have followed the deceased at him home, beat him until he was unconscious and stole the mattress. Responding to cross examination questions, PW6 said he believes the accused and Taliki are involved after finding the deceased's mattress at Babu Alt's house which they seized. However, he admitted not to have seen it in court. Responding further to the questions asked

by the court, PW6 admitted to have recorded Taliki!s cautioned statement and testified before the court on what was recorded in his cautioned statement. In essence, the evidence relied by PW6 to form an opinion that it was the accused who caused the death of deceased has two short comings. rdge j./ ui First, his testimony to implicate the accused, is based on the admission of the offence by Taliki, the co -accused. It a clear position of the law that, a confession of a co-accused cannot form a basis of conviction to the accused person without independent corroborative evidence. According to Section 33(2) of the Evidence Act, CAP 6, R.E 2022, confession by an accused person alone cannot be the basis of conviction against the co-accused. The section reads; “33(2) Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co-accused". Elaborating on the above position of the law, it was held in the case Selemani Rashidi and Others Vs Republic (1981) TLR Page 252 (HC) that; “Conviction should not be based on co-accused confession. The court of appeal on numerous occasions has held that confession by accused person can only be used as lending assurances to other evidences against the co-accused and that it cannot be used as basis of prosecution case.” [emphasis added] It was also held in the case of Pascal Kitigwa V R, (1994) TLR

65 that; Page 18 of 25 “It is also truism that whether in the form of a confession, or any other types of evidence of a co accused, to ground a conviction, it must be corroborated as a matter of law (in case of confessions) (s 33(2) of the Evidence Act) or of practice in any other types of evidence of a co-accused" [emphasis added] In another case of NDALAHWA SHILANGA and Another Vs R, CRIMINAL APPEAL NO. 247 OF 2008, The Court of Appeal of Tanzania illustrating on the position of the law in consideration of the co-accused against another held as follows: " ...the trial court relied on Section 33(1) of the Evidence Act. It is true that Section 33 (1) allows a court to take Into consideration the evidence of a co accused against another, but Section 33(2) of the same Act, prohibits a conviction to be based solely on such confession. This provision appears to have escaped the mind of the learned trial judge. So corroboration of a confession from a co- accused, is not just a matter of practice but a matter of law. This pro vision was enacted by an amendment to the Evidence Act by Act No. 19 of 1980, and thus overriding all case law, that had originally demanded such corroboration only as a matter of practice. Henceforth, a conviction of an accused person cannot rest solely on the confession of a co accused (See THADEO MLOMO AND OTHERS vR (1995) TLR. 187". [emphasis is added]. What

can be discerned from the quotations derived from the case laws above is that so long as it is the evidence of a co- accused, Page 19 of 25 whether it is a confession or admission or otherwise, it must be corroborated to form basis of conviction to a cooccused. The rationale behind is to avoid people to drag others into their problems especially those with bad blood between them. In so far as the evidence presented before this court is concerned, I see no corroborative evidence to support the requirement of the law. If at all, PW6's testimony unleashes the second short coming in his effort to implicate the accused. PW6 is a police officer. He told the court that the first accused admitted before him the scenario and their involvement which led to the death of the deceased. This means that Taliki confessed before him their involvement of the alleged offence. The question now is did he reduced the confession into writing as per the requirement set by the law under section 57(1) and (2) of the Criminal Procedure Act, Cap 20 RE 2022. He could only testify on the contents of such cautioned statement after the same has been admitted in court as evidence of which none was tendered. Should the court merely take the oral evidence of PW6 in so far as the admission of the offence by the accused person is concerned? Page 20 of 25 Section 57(1) and (2) of the Criminal Procedure Act, Cap 20

RE 2022 reads as follows: “57. -(!} A police officer who interviews a person for the purpose of ascertaining whether the person has committed an offence shall unless if is in all Circumstances impracticable to do so, cause the interview to be recorded. (2) Where a person who is being interviewed by a police officer for the purpose of ascertaining whether he has committed an offence makes, during the interview, either orally or in writing, a confession relating to an offence, the police officer shall make, or cause to be made, while the interview is being held or as soon as practicable after the interview is completed, a record in writing, setting out- fa) so far as if is practicable to do so, the questions asked of the person during the interview and the answers given by the person to those questions; (b) particulars of any statement made by the person orally during the interview otherwise than in answer to a question; (c) whether the person wrote put any statement during the interview and, if so, the times when he commenced to write out the statement; (d) whether a caution was given to the person before he made the confession and, if so, the terms in which the caution was given, the time when it was given and any response made by the person to the caution; fe) the times when the interview was commenced and completed; and Page 21 of 25 (f) if the interview was interrupted, the

time when it was interrupted and recommenced". The above provision of the law is clear that once the accused person is interviewed by the police on ascertaining the commission of the offence, when the accused person whether orally or in writing confesses to the offence; the law requires the police officer to immediately reduce such confession into writing unless it is impracticable to do. It follows that, an investigating officer or a police officer cannot produce the contents of confession orally in court unless the cautioned statement was first admitted in court. Then the investigator oral evidence would only corroborate the documentary evidence already admitted in court Le. the cautioned statement of the accused person. As the law requires, unless PW6 had tendered the first accused cautioned statement, the contents of his admission would not be orally admitted here in court as it would be giving evidence of the cautioned statement through the back door. This position has been extensively illustrated by the Court of Appeal in the case of The DPP V Sharifu Mohamed® Athumani and 6 Others, Criminal Appeal No. 74 of 2017 when discussing the similar situation as Page 22of 25 the present one cited with approval the case of Mashaka Pastory Paulo Mahengi@ Uhuru and 5 Others V Republic, Criminal Appeal No. 49 of 2015 [Unreported) and held that: "It seems to us clear that the learned

trial judge was articulating the position settled by this Court in Mashaka Pastory Paulo Mahengi (supra) when she said that the prudence of Section 57(1) of the CPA requires that if the accused person admits to an offence, the same should be reduced in writing and the narration of the contents only to be made after the same has been cleared for admission”. Thus, much as the evidence of PW6 on its own does not state any inculpatory facts connecting the accused persons with the alleged offence, still his testimony in so far as the confession of the accused person is concerned does not pass the condition set by the law. This court accordingly discards his piece of evidence. Deriving from the above evaluation and consideration of prosecution evidence, I find no evidence that implicates the accused in this case as the one who caused the death of the deceased. The prosecution’s evidence save for PW2, is crammed with generalization, assumptions and hearsay evidence which in any way cannot be said in certainty that the accused unlawfully killed the deceased Page 23 of 25 Going back to the rule, Abernethy J in the case of Attorney General V Ally Kleist Sykes [1957] 1EA257 said that: “The discretion lies entirely with the court. If a magistrate finds qn accused has no case to answer, then he must acquit the accused. Even although witness for the Crown may give evidence that if true shows

an accused has committed an offence, if such witnesses are palpably false or their evidence is incredible and the magistrate or Judge can place no reliance on them, why should he allow the case to go on? There can be no prima facie case against an accused which is supported by nothing but the testimony of a witness whose evidence is not worthy of credit” [emphasis is mine]. From the above position which I fully subscribe to therefore, one thing this court cannot do is to put the accused person to his defense so as to fill in the gaps left by the prosecution. That would be making the accused person prosecute his own case an act which is censured by the law. That being said and in terms of Section 293(1) of the Criminal Procedure Act, CAP 20 RE 2022, I find that there is no sufficient evidence brought by the prosecution that establishes prima facie Page 24 of 25 case against the accused person. Accordingly, I record a finding of not guilty to ALLY MUSSA TWAHA @ KILINGO @ BABU ALLY and do hereby acquit him. For that reason, I order that the accused to be released from custody forthwith unless otherwise lawfully held. Court: Right of Appeal explained. In terms of Section 312(4) of the Criminal Procedure Act CAP 20 RE 2022, ALLY MUSSA TWAHA @ KILINGO @ BABU ALLY should avail his permanent address and the same shall be coordinated by the DR in­ charge. R.A. Ebrahim Judge 23.08.2024 Page 25 of 25