Judgment Fikiri Final 1

Page 1 of 34 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA CRIMINAL SESSIONS CASE NO. 27802 OF 2024 REPUBLIC VS 1. FIKIRI S/O KAPALA @BUZINGO 2. AUGUSTINO JUMANNE @MATONO@GUSI JUDGMENT Date of last order: 21/11/2024 Date of Judgment: 13/12/2024 MWAKAPEJE, J.: The two accused persons, namely, Fikiri Kapala @Buzingo and Augustino Jumanne @Matono@Gusi, stand charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2022. It is alleged that the accused persons, on 21/04/2024 at Isulwabutundwe Village in the District and Region of Geita, murdered one Salome Lukanya. It is not a disputed fact that on the material date and place at about 2300hrs, the poor lady met her brutal and painful death after being attacked and cut by a sharp object on different parts of her body, including above the Page 2 of 34 right eye and on the neck, resulting in excessive bleeding as per the revelation of the Post Mortem Report (PE1). Following this incident, the matter was reported to the police, which led to the arrest of the two accused persons at the very dawn after the occurrence of the said death. However, all the accused persons refuted the accusations. During the case hearing, the prosecution was represented by Messrs Godfrey Odupoy and Robert Neophitus, both learned State Attorneys, while the accused persons were represented by Mr John Paul Hombo and Ms Rukia Marandu, learned Advocates. To prove the charge, the prosecution, led by called 15 witnesses and tendered the Post-Mortem Report, two chains of custody, seized items, a sketch map of the crime scene, cautioned statements of all accused persons, extra-judicial statements of all accused persons, two certificates of seizure, and exhibits PE1, PE2, PE3, PE4, PE5, PE6, PE7, PE8, PE9, PE10, and PE11, respectively. Briefly, the testimonies of the prosecution witnesses were to the effect that on 21/04/2024 at about 2300hrs, Kabula Vales (PW2) was asleep with the deceased, her mother and other relatives when suddenly, the door of their hut was banged broken, and she saw three people breaking in. The trio Page 3 of 34 attacked them; two went outside, and one who was left behind attacked her mother to death with a machete and club. She managed to identify one Fikiri Kapala (DW1), her brother-in-law married to her sister Joyce Vales (PW1), and Agustino Jumanne@Gusi (DW2), a watchman at Isulwabutundwe shops, with the assistance of a battery-circuited bulb that illuminated the hut. According to her, Fikiri was wearing a green jacket, matching shoes, and a green cap. Augustine was dressed in a black coat and black shoes and carried a club. In the attack, she sustained injuries from beatings by Fikiri and was taken to a nearby dispensary. On cross-examination, she stated she had seen DW2 at the police station when she went to collect a PF3, and she believed that a person could be at two different places simultaneously. Fares Fikiri (PW3), the son of the DW1, testified that on the material date and time, she was living at her grandmother's house due to misunderstandings and separation between his parents, PW1 and DW1. At about 2200hrs, he heard a bang on her grandmother's door and a cry for help. He was terrified to go outside; however, he heard his father's voice telling those inside his grandmother's hut to keep quiet. He peeped into a hole in a carpet in the window of the house where he slept and saw DW1 and DW2 with the assistance of the moonlight at his grandmother's door. His father was wearing a khaki jacket with a matching hat and khaki shoes, Page 4 of 34 holding a machete, while DW2 wore a black jacket, trousers, and boots, holding a black bluish torch. On cross-examination, he stated that he had identified the assailants by peeping on a window with the help of the bright moonlight and torches, which the assailants used to illuminate each other. He insisted on his father in the dress code he mentioned in the examination in chief. Nchele Vales (PW4), while asleep in his dream, saw his mother (the deceased) being attacked. Shortly after, he was awakened by the screams of his mother and sister. He quickly got up and went outside, finding that his grandmother's door had been broken open. As he approached the house, someone came toward him, shining a light directly into his eyes. He recalled hearing a voice warning him to stand still and not move, or he would be killed. He recognised the person as Augustino Juma (DW2). He was forced back into his house while he stayed inside but continued to observe through the door toward his mother's house. He later identified DW1, his brother-in- law, standing outside, dressed in a khaki jacket and matching shoes, holding a torch and a machete. He identified them as the light from their torches reflected the walls and illuminated their faces. He, however, never saw the third person who was cutting his mother inside the hut. On cross- examination, he stated he had seen DW1 cutting his mother with a machete. Page 5 of 34 PW1 and John Bundala (PW5) recounted the marriage issues between PW1 and DW1 prior to the killing of the deceased. PW1 stated that she had left her husband (DW1) because of irreconcilable disputes in their marriage. She connected the accused with the murder of her mother as she stated to have received threats from DW1, who believed it was the deceased who made PW1 leave him. PW5, on the other hand, recounted having been approached by DW1 for the latter to be issued with an introduction letter to Sengerema authorities where his wife was allegedly living with another man. DW1 reported that he found his wife having an affair with the said man, who was fined Tsh 100,000. Thereafter, DW1 was given his wife to go back to Isulwabutundwe. On cross-examination, PW1 stated that she was not present at the scene, but due to her sour relationship with her husband, she was inclined to believe that DW1 did murder her mother. PW5 stated to have not witnessed the incident. Following information from informants, PW6 and PW7 arrested the accused persons between 0500-05hrs on 22/04/2024. During the investigation, the accused persons were searched by E9864 SGT. Issa Melvin (PW6), Insp. Halifa Ibrahim Mwafuliwa (PW10), G-8206 D/CPL Said (PW11) and seized, in the presence of Umoja Gakeya (PW12), with a khaki coat with a hat, a pair of black trousers, a pair of khaki boots, a small black torch which Page 6 of 34 belonged to DW1 while a small club and a big black-blue torch belonged to DW2. All were admitted in evidence. G-8206 CPL Matete (PW 13), PF 24249 A/INS Chachage (PW14) and Mpanduji Charles (PW15) recorded the cautioned and extrajudicial statements of the accused persons and stated that the accused confessed to having murdered the deceased. DW1, Fikiri Kapala Buzingo, recounted that he was arrested at home while sleeping with his son, Gamba Fikiri, at around 0200 hrs. on 22/04/2024 by police officers Issa (PW6) and Majunga (PW7) and taken to the station and later interrogated about a machete linked to the murder of his mother- in-law, Salome Lukanya. DW1 denied involvement, alleging police brutality during interrogation and the forced signing of documents. He stated items, including clothing and a torch, were seized from his house but denied any role in the crime, asserting his innocence and peaceful relationship with his wife. On cross-examination, he admitted knowing his wife testified against him but denied allegations of conflict or involvement in his mother-in-law's murder. He claimed no disputes with his wife before arrest and attributed her actions to hatred developed post-arrest. He asserted he lived far from the victim's house and had no issues with her. He further explained that his son's absence as a witness might be due to influence from his wife. He complained of being taken to Court on 23/05/2024, a month after the arrest. Page 7 of 34 On the other hand, Augustino Jumanne Katona @Gusi (DW2) testified that on 22 April 2024, while on duty at about 0100hrs, he encountered PW2 and her relatives, claiming their homes had been invaded and assisted them by contacting the police for a PF3 form. Later, police accused him of involvement in a murder, which he denied, stating he was at his post. He alleged police coercion, beatings, and fabrication of evidence during his arrest and interrogation. He maintained his innocence regarding the murder charges. Upon cross-examination, he reiterated that he briefly left his post to assist but remained nearby. He further clarified his duties and allowed limited mobility within the premises. He also complained of being taken to Court a month after the arrest. After reviewing the evidence presented by both the prosecution and the defence, it is critical to reiterate that the accused are charged with murder under sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2022. To secure a conviction on a charge of murder, the prosecution must, beyond a reasonable doubt, establish three elements: firstly, the deceased's death and that it resulted from external, unnatural causes; secondly, that the accused persons caused the death; and thirdly, that the act causing death was committed with malice aforethought. Page 8 of 34 Commencing with the first, to establish that the death of the deceased occurred, it must be shown that the deceased was alive before the incident and that death resulted from external, rather than natural, causes. In this case, PW2 testified that she had slept in the same hut as the deceased before the invasion and was subsequently attacked, subsequently leading to her death. Additionally, PW3 and PW4, who were present at the scene on the night of the incident, both testified to witnessing the deceased being fatally struck by a machete. Furthermore, since, among others, death is proved by medical evidence as was stipulated in the case of Bombo Tomola vs Republic (1980) TLR 254, PW8 herein, the clinical officer confirmed the death of the deceased in his post-mortem report, which was admitted as Exhibit PE1. PW8 explained that upon examining the body, he observed multiple injuries consistent with sharp object trauma, including a cut above the right eye and another on the neck. The cause of death was determined to be excessive bleeding caused by multiple cut wounds. Based on this evidence, it is beyond dispute that the deceased must have died from the injuries inflicted in the exercises of such violence or assault on her body, making her death to be caused by external trauma. It can, therefore, be Page 9 of 34 concluded that the first element is proved in the standard required in criminal law. I now move further to determine whether the accused persons herein murdered the deceased. In consideration of this element, I would point out that the prosecution is obligated to prove the case beyond a reasonable doubt. The rationale is to ensure justice, fairness, and protection of individual rights in the criminal justice system while preventing wrongful convictions. Section 3(2)(a) of the Evidence Act, Cap. 6 R.E. 2022, is very clear on this aspect, and the same provides that: “3(2). A fact is said to be proved when— (a)in criminal matters, except where any statute or other law provides otherwise, the Court is satisfied by the prosecution beyond reasonable doubt that the fact exists.” Case law has, on many occasions, established that the prosecution has the duty to prove his case beyond a reasonable doubt, and the same never shifts to the accused person. For instance, in the case of Mohamed Said Matula V Republic [1995] TLR 3, it was categorically stated that: "…………., the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution, and no duty is cast on the Appellant to establish his innocence." [Emphasis supplied] Page 10 of 34 I must also emphasise that establishing a case beyond a reasonable doubt entails presenting evidence in Court that is compelling and conclusive and leaves no room for doubt regarding the guilt of the accused. This necessitates the prosecution to prove the facts of the case so that no alternative explanation or individual could plausibly be responsible for the crime other than the accused. This stringent standard is crafted to ensure that a conviction is only secured when the evidence against the accused is overwhelmingly persuasive, eradicating any doubts that a rational person might harbour concerning their role in the offence. In the case of Samson Matiga vs. Republic, Criminal Appeal No. 205 of 2007 (unreported), the Court of Appeal explicitly stated that: "What it means, to put it simply is that the prosecution evidence must be strong as to leave no doubt to the criminal liability of an accused person. Such evidence must irresistibly point to the accused person, and not any other, as the one who committed the offence".[Emphasis supplied] I will be guided by the above-established legal principles in determining the second element. I should confess that the accused herein are connected with the offence because of their identification at the crime scene, suspicion, and cautioned and extrajudicial statements before the police and the justice of the peace, respectively. Page 11 of 34 I will outrightly commence with the issue of identification. It is common ground that this aspect is fundamental in criminal justice, mainly where the prosecution's case hinges on visual identification evidence. Courts in the land have consistently held that evidence of identification, especially in conditions of poor visibility, such as at night, must be treated cautiously to avoid convicting the wrong person. This principle is grounded in the risk of honest but mistaken identity. It is articulated in numerous cases to ensure that such evidence is subjected to rigorous scrutiny to prevent miscarriages of justice. Such cases include but are not limited to Waziri Amani v. Republic [1980] TLR 250, Raymond Francis v. Republic [1994] TLR 100, and Shadrack Kuhaha vs Republic (Criminal Appeal No. 139 of 2015) [2015] TZCA 443 (5 June 2015) (Tanzlii). The factors to consider in dealing with such evidence, as articulated in the case of Waziri Amani (supra), included the time spent observing the accused, the distance between the witness and the accused, the lighting conditions, and the opportunity for the witness to observe distinctive features of the accused. In the case of Shadrack Kuhaha vs Republic (supra), it was categorically stated that: The law is settled on visual identification. First, such evidence is the weakest kind and most unreliable and should be acted upon Page 12 of 34 cautiously after the Court is satisfied that the evidence is watertight and all possibilities of mistaken identity are eliminated. Second, even if it is evidence of recognition, that evidence must be watertight. In that regard, where the offence is committed at night, and the question of light is an issue, there must be clear evidence as to the intensity of the light, and bare assertions would not do. Third, in matters of identification conditions for identification alone, however ideal they may appear, there is no guarantee for truthful evidence; lastly, it is not always impossible to identify assailants even at night and even when the victims are terrorised and terrified. The evidence in every case where visual identification is what is relied on must be subject to careful scrutiny, due regard being paid to all the prevailing conditions to see, in all the circumstances, there was really sure opportunity and convincing ability to identify the person correctly and that every reasonable possibility of error has been dispelled. [Emphasis supplied] Guided by the above principles, the tragic incident, in this case, occurred during the night, at about 2300hrs, when the deceased, PW2 and other relatives were asleep. At that time, PW2 witnessed the bang and the breaking of the door of their hut. The three assailants entered therein, assaulted her and others to prevent them from shouting, and one of them, who was unknown to her, proceeded to attack her mother with a machete and a club. PW2 managed to identify her brother-in-law, DW1 and DW2, with the help of the torch light circuited with a bulb that illuminated the hut. According Page 13 of 34 to her, DW1 was wearing a green jacket, matching shoes, and a green hat, and DW2 was dressed in a black coat and black shoes and carried a club. PW3 and PW4 also identified the accused. The two testified that they recognised the first accused as wearing a khaki jacket matching khaki boots and holding a black torch while the DW2 was carrying a club and a black- bluish torch. It is the established position of the law that visual identification of assailants, even under challenging circumstances such as at night or during violent incidents, is not inherently unreliable. However, because mistakes in identification can occur, even when the witness is honest and believes they are correct, it is critical to scrutinise such evidence carefully. All the prevailing conditions are to be considered to ensure a clear opportunity and convincing ability for the witness to identify the accused accurately, eliminating all reasonable possibilities of error. See the case of Philipo Rukaza @ Kitchwechembogo v. R, Criminal Appeal No. 215 of 1994 Court of Appeal of Tanzania (unreported) as referred in the case of John Jacob vs Republic (Criminal Appeal 92 of 2009) [2011] TZCA 112 (23 November 2011)(Tanzlii). Analysing the evidence in the present case, it is clear that the primary eyewitness to the assailants was PW2. According to the sketch map of the scene, admitted as Exhibit PE7, PW3 and PW4 were in other huts Page 14 of 34 approximately 40 meters from the deceased's hut; hence, they were at a distance. PW2 stated that she identified the assailants as her brother-in-law (DW1) and the watchman at the Isulwabutundwe Shops (DW2). However, considering the terrifying nature of the incident and the banging of the hut's door, PW2's account raises several concerns. First, while she mentioned the source of light, the colour of the assailants' outfits, and her prior familiarity with them, she failed to indicate critical details such as the duration of her observation, the time the assailants spent with her, or descriptions of their body build, complexion, and size at the time of the invasion. These omissions weaken the reliability of her identification, as emphasised in Omari Iddi Mbezi and Three Others v. R., Criminal Appeal No. 227 of 2009 (unreported). Second, PW2's evidence regarding the colour of DW1's attire conflicts with the items seized from DW1's home, as documented in the certificates of seizure admitted as Exhibits PE 5 and PE 6. The seized items included a khaki jacket with a hat, khaki boots, black trousers, and a small torch, none of which matched her description. This discrepancy raises significant doubt about whether the lighting conditions that night were sufficient for PW2 to identify the assailants reliably. Page 15 of 34 Similarly, the testimonies of PW3 and PW4, who claimed to identify the assailants' clothing colours from 40 meters away using moonlight and the light emanating from the hut, are also questionable. It is difficult to reconcile how they could discern such specific details, including the colours of the torch held by the assailants, under the circumstances described. This creates further doubt about the reliability of their identification of the accused person. It is also crucial to point out that when PW2 was taken to the Police for a PF3, he found DW2 thereat. This reconciles with the testimony by DW2, who stated that he assisted them in obtaining it. Considering the distance between the scene and the police station, around where DW2 works as a guard, the testimony of PW2 that a person can be at two different places simultaneously is doubtful. PW3 further testified that, while sleeping, he heard his father's voice silencing those inside his grandmother's hut and later observed DW1 and DW2 through a hole in the carpet at the window of the hut where he was. However, this testimony raises significant concerns about the reliability of his identification of the accused. Firstly, voice identification is recognised as one of the weakest forms of evidence due to its susceptibility to error. Voices can easily be imitated, mistaken, or misinterpreted under stressful or unclear circumstances. See the cases of Stuart Erasto Yakobo vs Republic, Page 16 of 34 Criminal Appeal No. 202 of 2004; Musa Maongezi vs Republic, Criminal Appeal No. 263 of 2005; and Badwin Komba @Ballo vs Republic, Criminal Appeal No. 56 of 2005, where courts have cautioned against relying solely on voice identification unless it is corroborated by other credible evidence. In the present case, PW3 failed to explain how he differentiated his father's voice from others, casting doubt on the accuracy of his identification. Secondly, PW3's observation of DW1 and DW2 through a hole in the carpet is questionable. Despite the contention that PW3 managed to see assailants via moonlight and circuited battery light, the prosecution did not establish the lighting conditions or visibility through the alleged opening. Identification evidence is only reliable when the conditions for proper observation are conducive, as outlined in the case of Waziri Amani vs Republic (Criminal Appeal 55 of 1979) [1980] TZCA 23 (6 May 1980) (Tanzlii), which held that factors such as distance, lighting, and the duration of observation are crucial in assessing the reliability of identification evidence. In this case, the absence of proof detailing these conditions undermines the credibility of PW3's claim. Additionally, PW3's and PW4's testimonies contradict PW2's evidence. While the former identified DW1 and DW2 in the khaki colour of the jacket, Page 17 of 34 hat and shoes, PW2 mentioned different colours of clothing and boots (green), creating inconsistencies that further weakened the prosecution's case. Moreover, PW3 did not describe his alleged father's complexion or appearance that night, leaving his identification claim vague and unsupported. Notably, the sketch map did not indicate which of the huts at the scene PW3 was in during the incident, adding to the uncertainty about his vantage point. On the other hand, the testimonies of PW2 and PW4 present significant contradictions that undermine the credibility and reliability of their accounts. PW4 testified that he identified the assailants by the reflection of their torchlight, left his hut to confront them, and was ordered to return to his hut, from where he peeped through the opening in the door. Conversely, PW2 stated that after the assailants left, she went to PW4's hut to open the door, which had been locked outside. Furthermore, PW4 claimed to have seen DW1 cutting his mother, and PW2 stated the unknown person was the one who killed their mother, striking her with a machete. Additionally, he claimed that after the assailants left, he went to the hut where his mother (deceased) and PW2 were located. These inconsistencies raise serious doubts about the accuracy and truthfulness of their statements. If PW2 claimed that PW4's door was locked from the outside, it would have been Page 18 of 34 impossible for PW4 to confront the assailants, return to his hut, and observe the events through an opening. This contradiction directly affects the reliability of both accounts if they managed to identify the assailants. It is trite law that the law evidence, especially critical facts, must be consistent and credible. See the case of Goodluck Kyando v. Republic [2006] TLR 363, where the Court of Appeal stated that every witness is presumed credible unless there are compelling reasons to doubt their testimony. However, in this case, the conflicting testimonies provide substantial reasons to question the veracity of PW2 and PW4's accounts. As identification of the accused persons is central to the case, these discrepancies cannot be overlooked. The conflicting testimonies undermine the reliability of their identification of the assailants. As such, this evidence cannot be relied upon to establish the guilt of the accused beyond reasonable doubt, as the same goes for the root of the case. In the case of Michael Haishi vs Republic [1992] TLR 92, it was stated that: "Since the witnesses contradicted themselves on the question of identification of the appellant, that evidence cannot remain unshaken;" Page 19 of 34 Adding to the doubts surrounding the identification, PW2, PW3, and PW4 did not identify the items that were seized, tendered, and admitted in Court as exhibits PE2, PE3, PE4, PE5 and PE6 (two chains of custody, properties seized and two certificates of seizure, respectively), nor did they confirm whether these items were similar to those worn by the assailants on the night of the incident. Although the items were identified by the police officers PW10, PW11, and the VEO (PW12), who did not see the incident, as having been seized from the accused persons' homes, there was no direct link established between the seized items and the commission of the crime by those who purportedly claimed to have witnessed the incident, namely PW2, PW3, and PW4. It is well-established that a witness who claims to have observed the accused at the crime scene must specifically identify the items the accused was wearing or using during the commission of the alleged crime. Furthermore, consistency in describing the items is crucial, aligning closely with the witness's testimony and detailing unique characteristics like colour, patterns, and more. Items such as boots, trousers, or jackets should be firmly linked to the crime scene through tangible evidence like soil, blood, or other relevant traces consistent with the crime's location and nature. When items like boots, jackets, or trousers are not definitively identified by Page 20 of 34 key witnesses, such as PW2, PW3, and PW4, who claim the accused wore them during the crime, their value as evidence diminishes significantly. In his defence, DW1 confirmed that the said items were collected at his home and were his but denied their involvement in the commission of a crime. The key principle, therefore, remains that physical evidence must establish a clear link between the victim, accused, the crime scene, and the alleged offence for such items to be reliable evidence supporting the prosecution's case. Considering the above observations, I am not convinced that the circumstances of this case were sufficiently robust to eliminate all reasonable doubt. The other issue linking DW1 to the crime stems from PW1's testimony, though she was not at the scene. Although DW1 denied the existence of disputes between himself and PW1, the testimonies of PW2, PW3, PW4 and PW5 collectively established that the couple had serious misunderstandings, leading PW1 to return to her parents. PW1 testified that DW1 blamed the deceased for interfering in their marriage and even issued threats to take unforgettable action. While the allegations in this case suggest animosity and a potential motive, it is a well-established principle of law that suspicion, no matter how Page 21 of 34 strong, cannot form the basis of a conviction. See the case of Kefa Rashid & Others vs Republic (Criminal Appeal No. 68 of 2013) [2013] TZCA 358 (26 September 2013)(Tanzlii), where it was underscored that suspicion, regardless of its gravity, does not equate to proof of guilt. Convictions must instead rest on credible evidence that establishes the accused's guilt beyond a reasonable doubt. The threats attributed to DW1 in the present case and the evidence of disputes between him and PW1 may raise suspicion. Still, they do not amount to direct or conclusive evidence linking DW1 to the commission of the alleged crime. See also the case of Ally Fundi v Republic [1983] TLR 210 (HC). Apart from the suspicions raised by PW2 regarding the involvement of DW1 in the murder of her mother, another critical aspect that warrants examination is the basis for the arrest of the accused persons. Notably, none of the key witnesses, PW2, PW3, and PW4, testified to having reported the incident to the police linking the accused persons with the incident. The evidence only indicates that the arrests were made based on information provided by an informant. However, the prosecution has not clarified how the informant's information specifically linked the accused to the offence beyond identifying them as mere suspects. The reliance on Page 22 of 34 information from an undisclosed informant, without providing details of the substance or reliability of that information, raises questions about the legality and sufficiency of the basis for the arrests. Therefore, while indicative of a strained relationship and possible motive, the allegations and testimonies here fail to meet the evidentiary threshold required in criminal law. The principle that suspicion alone is insufficient for conviction is a critical safeguard against miscarriages of justice. The final issue pertaining to the second element in establishing whether the accused persons are responsible for the death of the victim centres around their cautioned and extrajudicial statements reportedly made in front of the Justice of the Peace. I wish to first address issues related to the cautioned statements by both accused persons, which were tendered and admitted as Exhibits PE8 and PE9 by PW13 and PW 14, respectively. Although the said documents were admitted after two trials within the trial, and since no objection was raised to the non-compliance with section 57 of the Criminal Procedure Act, Cap 20, R.E. 2022, it is my duty at this juncture to ensure first that the mandatory provisions of the law are complied with to the letter before acting on the same. See the case of Adinardi Iddy Salimu & Another v. R (Criminal Appeal No. 298 of 2018) [2022] TZCA 9(11 February 2022) (Tanzlii). Page 23 of 34 I should point out that the introduction of sections 57 and 58 in the Criminal Procedure Act was to safeguard individuals' rights during police interrogation. The procedural safeguards in the said provisions are essential to verify the correctness of the recorded statement and prevent any imputation of words into the accused’s mouth. See the cases of Chamuriho Kirenge @Chamuriho Julius vs Republic (Criminal Appeal 597 of 2017) [2022] TZCA 98 (7 March 2022) (Tanzlii) which cited the cases of Musa Mustapha Kusa and Another v. Republic, Criminal Appeal No. 51 of 2010; and Bulabo Kabelele and Mashaka Felician v. Republic, Criminal Appeal No. 224 of 2011 [both unreported], where it was stated that sections 57 and 58 are to be fully complied with as they protect the rights of an accused person. In the present case, when recording the statement of the accused person who is literate, the recording officer has to indicate in writing in the certificate at the end of the recording that the same has to be shown to him to read to allow him to make changes, if any, or add the statement. The said section 57(3) (a) reads as follows: 57(3) A police officer who makes a record of an interview with a person in accordance with subsection (2) shall write, or cause to be written, at the end of the record a form of certificate in accordance with a prescribed form and shall then, unless the person is unable to read— Page 24 of 34 a) show the record to the person and ask him— i. to read the record and make any alteration or correction to it he wishes to make and add to it any further statement that he wishes to make; ii. to sign the certificate set out at the end of the record; and iii. if the record extends over more than one page, to initial each page that is not signed by him;” In the present case, at the end of the record of the statement of the DW1, there are two certifications, one that of the accused and the other that of the recording officer. At the end of the accused certification, it is indicated that he signed; however, I had reservations about the said signature, especially on the formulation of letters of the accused signatures. I compared what he wrote to police as it is indicated he wrote his name and what he signed in his extrajudicial statement and in Court during plea taking and preliminary hearing. The two differed substantially, implying that the accused did not sign it. I, therefore, doubt if at all the accused signed the same. Additionally, the certification part of the recording officer reads as follows: “UTHIBITISHO: Mimi G. 206 D/CPL MATETE chini ya K/F 57(3)(a) cha CPA ya 1985 R.E 2022 nathibitisha kuandika Page 25 of 34 maelezo ya onyo ya FIKIRI s/o KAPALA@BUZINGO kwa usahihi na uaminifu” To me, this does not indicate that the police officer recorded what he was required to do under the law. Nowhere does he indicate that he showed the statement to the accused person, nor did he indicate that he asked the accused to read the record, made any alteration or correction to it if he wished, or added to it or not any further statement that he wished to. All these make me form an opinion that section 57(3) was not complied with. With regard to DW2's cautioned statement, considering that the accused person cannot read and write, the recording officer in his certification, did not indicate whether he read the record to the accused person as far as section 57(4)(a),(b),(c), (d) and (e) of the CPA is concerned. Neither is it indicated that he asked the accused whether he liked to correct or add anything to the record or whether he was permitted by the accused to correct, alter, or add to the record any corrections to the record. I wish to reproduce the said certification as follows: “UTHIBITISHO: Mimi A/INSP. CHACHAGE nathibitisha kuandika maelezo ya onyo ya Augustino s/o Jummanne @GUSI kwa usahihi na uaminifu chini ya K/F 57(4)(e) cha CPA, CAP 20 [R.E. 2022]” Page 26 of 34 This certification does not align with the requirements set forth by the law. Given that the provisions are mandatory in nature, they must be adhered to precisely and without deviation. Accordingly, to uphold human rights, transparency, and fairness within the justice system during the recording of the accused statement by a police officer, and because of repeated mistakes by recording officers, I propose the following approach to ensure that the accused and the recording officer's certification clause unequivocally demonstrates compliance with the stipulated requirements of the said section as follows: "(a) Uthibitisho wa Mtuhumiwa: Mimi,………………………………………………………..[Jina la Mshtakiwa], nathibitisha kwamba nimeonyeshwa kumbukumbu ya maelezo ya mahojiano niliyoyafanya na…………………….. [Jina la Afisa wa Polisi] tarehe…………….[Tarehe] katika..………..…….[Mahali]. Nimeombwa kusoma/ nimesomewa maelezo hayo, na kuwa nimefanya au kuomba kufanya marekebisho au mabadiliko yoyote niliyotaka, na kuongeza maelezo mengine yoyote niliyotaka kutoa. Nimekagua kumbukumbu hiyo na kufanya marekebisho au mabadiliko yafuatayo: [Maelezo ya marekebisho/mabadiliko au “Hakuna”], na nimeongeza maelezo yafuatayo ya ziada: [Maelezo ya maelezo ya ziada au “Hakuna”]. Nathibitisha kwamba maelezo hayo, pamoja na marekebisho au nyongeza zozote zilizotajwa, ni uwakilishi sahihi wa mahojiano yaliyofanywa nami. Page 27 of 34 (b) Certification of the accused in English I,………………………………………………. [Name of Accused], certify that I have been shown the record of the interview conducted by………………………………………….……….. [Name of Police Officer] on…………………………………[Date] at…………………………… [Location]. I have been asked to read the record, make any alterations or corrections I wish to make, and add any further statements I wish to make. I have reviewed the record and made the following alterations or corrections: [Details of alterations/corrections or "None"], and I have added the following additional statements: [Details of additional statements or "None"]. I certify that the record, with any alterations or additions noted, is an accurate representation of the interview conducted with me." (c) Uthibitisho wa Afisa anayefanya mahojiano kulingana na kama mtuhumiwa anajua kusoma au la: “Mimi,………………………………………. [Jina Kamili la Afisa na Cheo], nathibitisha kuandika maelezo ya onyo ya…………………………. [Jina la Mtuhumiwa] katika ……………….[Mahali] tarehe …..………[Tarehe] Baada ya kuandika maelezo hayo, aliyasoma mwenyewe [kwa asiyejua kusoma] nilimsomea…………….[Jina la Mtuhumiwa] kwa sauti kwa lugha ya ……………………………..[Lugha Iliyotumika], kwa sababu [hakuweza kusoma/aligoma kusoma/alionekana kutosoma] malezo hayo. Nilimuuliza kama angependa kufanya marekebisho, mabadiliko, au kuongeza chochote kwenye maelezo yake, na majibu yake lilikuwa …………………………..[Taja jibu au “Hakuna alilohitaji kurekebisha”]. Pale ambapo alihitaji marekebisho, mabadiliko, au nyongeza, nilimruhusu kufanya hivyo, na mabadiliko hayo yalijumuishwa kwenye maelezo yake [Ikiwa hakuna Page 28 of 34 mabadiliko yaliyohitajika, hili libainishwe pia]. Baada ya kuhakikisha kuwa ……………………..[Jina la Mtuhumiwa] ameridhika na yaliyomo kwenye maelezo yake, nilimwomba asaini kuthibitisha mwishoni mwa maelezo yake. Ninathibitisha kuandika maeleo haya kwa mujibu wa Kifungu cha 57(3) (kwa anayejua kusoma) au cha 57(4) (kwa asiyejua kusoma) cha Sheria ya Mwenendo wa Makosa ya Jinai, Sura ya 20, Mapitio ya Mwaka……….” (d) In the English language, depending on whether the accused can or cannot read, this can be loosely translated thus: I, …………………………… [Full Name of Officer and Rank], certify that I recorded the caution statement of …………. [Name of the Accused] at ……………………… [Location] on ……………… [Date]. After recording the statement, I read it aloud to ……………… [Name of the Accused] in the ………………………….. [Language used], as [he/she was unable to read/refused to read/appeared not to read] the statement. I asked if he/she wished to make any corrections, alterations, or additions to the statement, and his/her response was ………………………….. [State response or "There were no corrections requested"]. Where he/she requested corrections, alterations, or additions, I allowed him/her to make them, and these were included in the statement. [If no changes were requested, this should also be noted]. After ensuring that ………………….[Name of the Accused] was satisfied with the contents of the statement; I asked for him/her to sign at the end of the statement as confirmation. I hereby certify that I recorded this statement in accordance with Section 57(3) [If can read] 0r under section 57(4) [if unable to read] of the Criminal Procedure Act, Chapter 20, Revised Edition ..." Page 29 of 34 Therefore, it follows that once the authenticity of the certification part of the accused and the recording officer is questioned, as in this case, the cautioned statements cannot be relied upon in evidence by this court. See the case of Juma Omary vs Republic (Criminal Appeal 568 of 2020) [2022] TZCA 798 (8 December 2022) (Tanzlii). Following non-compliance with the mandatory provisions of section 57(3) and (4) of the CPA in the present case, I proceeded to ignore and expunge them from the record. I now turn to consider the extrajudicial statements by both the accused persons before the justice of the peace. These statements, supposedly confessions, have been vehemently disavowed by both DW1 and DW2, who have denied their veracity. In relation to this matter, it is paramount to underscore the principle that confessions alone are insufficient to warrant a conviction. While confessions hold significance, they necessitate corroboration from other independent evidence that is robust enough to establish a definitive connection between the accused and the perpetration of the crime. See the case of Alex Ndendya vs Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020)(Tanzlii) while referring to the case Geofrey Sichizya vs DPP (Criminal Appeal 176 of 2017) [2020] TZCA 159 (30 March 2020) (Tanzlii). In the absence of such corroboration, Page 30 of 34 even if authentic, a confession cannot serve as the sole basis for a conviction unless the Court is satisfied with its truthfulness. In the case of case of Bombo Tomola v. Republic [1980] TLR 254, which was referred to in the case of Alex Ndendya vs Republic (supra), it was stated that: "Generally, it is dangerous to act upon a repudiated [or retracted] confession unless it is corroborated in material particulars or unless the court, after full consideration of the circumstances, is satisfied with its truth." Moreover, confessions should be assessed in conjunction with all other evidence presented in the case to ascertain whether the accused's guilt is proven beyond a reasonable doubt. Additionally, they constitute merely one fragment of the puzzle, and their significance must be evaluated within the broader context of the entire body of evidence. This is why courts must meticulously scrutinise the confessions before relying on them to secure a conviction. In the case of Hemed Abdallah v. Republic [1995] T.L.R. 172, it was stated that: "Once the trial court warns itself of the danger of basing a conviction on uncorroborated retracted confession and having regard to all the circumstances of the case it is satisfied that the confession is true, it may convict on such evidence without any further ado." Page 31 of 34 In the present case, the key prosecution witnesses, PW2, PW3, and PW4, as seen above, were unable to ascertain the persons responsible for the assault and murder of the victim. As a result, their inconsistent testimonies and failure to identify the assailants do not offer direct evidence connecting the accused to the crime. In that regard, the alleged statements made by the accused persons to the Justice of the Peace, where they supposedly confessed to their involvement in the crime, lack substantiation from an impartial source. Therefore, the absence of corroborating evidence from the prosecution witnesses casts significant doubt on the reliability of the alleged confessions to the justice of the peace. With a dearth of independent evidence connecting the accused to the crime, the second element concerning the accused's culpability for the victim's demise cannot be definitively ascertained at this juncture. The disavowal of the confessions and the lack of corroborative testimony from prosecution witnesses suggest that the prosecution has not substantiated the accused's involvement beyond a reasonable doubt in terms of section 3(2)(a) of the Evidence Act, [Cap. 6 R.E. 2022]. The third element for determination is whether the accused persons acted with malice aforethought in the alleged killing of the deceased. Malice Page 32 of 34 aforethought, as defined under Section 200 of the Penal Code [Cap. 16 R.E. 2022], constitutes an essential ingredient in proving the offence of murder. However, this element presupposes that the prosecution has established, beyond a reasonable doubt, that the accused were involved in the unlawful killing of the deceased. In the present case, after a thorough analysis of the evidence, the prosecution has failed to establish a credible link between the accused persons and the killing of the deceased. In the absence of reliable and corroborated evidence implicating the accused persons, it is legally untenable to proceed with determining whether malice aforethought existed. This third element, which concerns the presence of malice aforethought, inherently depends on proving the accused's involvement in the unlawful act leading to the deceased's death. Since the prosecution has not met its burden of proving beyond reasonable doubt that the accused persons participated in the killing, any examination of their intent or state of mind at the material time would be baseless. Before I pen down, I must address the complaint raised by the accused persons regarding their prolonged detention in police custody without being brought before a court. It is undisputed that both accused persons were Page 33 of 34 arrested on 22/04/2024 but were first brought to court on 23/05/2024, approximately one month later, as indicated in the lower court's proceedings. While I acknowledge that Section 32(2) of the Criminal Procedure Act allows flexibility for a person arrested for an offence, as in this case, to be brought to court as soon as practicable, it is a well-settled principle that such flexibility does not grant the authorities an open-ended timeline. The provision mandates that accused persons be brought before a court "as soon as practicable," which has been interpreted to mean that authorities must act without unreasonable delay. Circumstances such as geographical constraints, logistical challenges, or court unavailability may justify a delay, but such justifications must be both genuine and adequately demonstrated. In the present case, the circumstances surrounding the delay are questionable. The accused were arrested on the date of the incident, interrogated at Isulwabutundwe Police Station, and later transferred to Kasamwa and Geita Central Police stations, locations within close proximity to court premises. Despite this, no explanation has been offered to justify the extended period of detention. Holding the accused in police custody for 30 days without producing them before a court promptly is not only procedurally improper but also infringes upon their individual protected rights. Such unwarranted delays can lead to multiple adverse inferences, Page 34 of 34 including the possibility of abuse of power or coercion. Moreover, prolonged detention without cause undermines the integrity of the justice process and erodes public trust in law enforcement. That said and done, and in consideration of the foregoing, there is no doubt that the prosecution in this case has failed to prove the case against the accused persons herein. Consequently, I hereby acquit Fikiri Kapala @ Buzingo and Augustino Jumanne @Matono@Gusi of the offence of murder contrary to sections 196 and 197 of the Penal Code [CAP 16 R.E 2022]. I further order that they be forthwith released from prison unless they are lawfully held. It is so ordered. DATED at GEITA this 13th day of December 2024. G.V. MWAKAPEJE JUDGE