MACHERA WARYOBA GORWE AND OTHERS

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: WAMBALI 3.A.. MAIGE. J.A. And RUMANYIKA. 3.A.^ CRIMINAL APPEAL NO 58 OF 2021 MACHERA WARYOBA @ GORWE ■1st APPELLANT SASI KABUCHE @ WAMBURA.... ,2nd APPELLANT AMOS MWITA @ MASHAURI..... 3rd APPELLANT VERSUS THE REPUBLIC, RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Kisanva, J.1 dated the 11th day of December, 2020 in Criminal Sessions Case No. 39 of 2020 JUDGMENT OF THE COURT 26th November & 13th December, 2024 RUMANYIKA. 3.A.: On 11th December, 2020, the High Court of Tanzania at Musoma (the trial court) convicted Machera Waryoba @ Gorwe, Sasi Kabuche @ Wambura and Amos Mwita @ Mashauri (the first, second and third appellants), respectively, for the offence of murder contrary to sections 196 of the Penal l Code (Cap 16). They were, in terms of section 197 of the Penal Code sentenced to suffer the mandatory death by hanging. It was alleged that on 4th November, 2015 around 11:00 hours at Magatini Village within Serengeti District in Mara Region, the first appellant who was the deceased's father, successfully laid a trap for the murder of the deceased. Acting on the fathers' instruction, the second and third appellants went to the forest with the deceased pretending to be shown a tree to cut down. However, while there, they turned wild to the deceased as they held him tight and chopped off his head. The first appellant warned them not to reveal the incident to any third party. Few days later, Marwa Irengero (PW5) who passed thereby, his dog smelt it leading him to the discovery of a decomposing creature. It turned out to be a human head. Shortly later, the remaining part of the deceased's body was found few meters away. Police investigations led to the arrest of appellants. Interrogated, the second and third appellants confessed to have murdered the deceased jointly but claimed to have been instructed by the first appellant. The first appellant vehemently denied involvement in the incident. He implicated one Amos Mwita Mashauri as the last person who was allegedly seen to be with the deceased. According to F 3785 D/CPL Proches (PW3), the third appellant confessed to have murdered the deceased under compulsion of the first appellant. He also named the third appellant as co-murderer. Following the confession, the first appellant was arrested and charged as such. Questioned by people, the appellants led them to the discovery of the body abandoned in the bush. Based on these facts, F 1819 DC Mauzi Lyawatwa (PW4) recorded the second appellant's cautioned statement (exhibit P2) in the presence of PW3 and his relative, one Moses Mchanake Gorwe (PW6). The respective report on post mortem examination (exhibit PI) prepared by one Isaya Tirutoza (PW1) revealed that the cause of death was the collapse of the jugular veins. In their defence, the appellants totally denied the charge and assertions made by the six prosecution witnesses. They also had one Otaigo Machera (DW2), the first appellant's wife as witness. Insisting on his innocence, the first appellant (DW1) stated that he had not been to the scene of the crime at the material time until such time when the deceased was reported missing. The second appellant (DW3) stated that he was sick and therefore, he could not have been to the scene of the crime at the material time. He repudiated the alleged cautioned statement for the reason that he signed it after being induced by PW6 that he was going to discharge him from the case. The third appellant (DW4) equally denied the charge by stating that he lied on the police only to save his skin. At the end of it all, the trial court found the prosecution case to have been proved beyond reasonable doubt against the appellants. They were convicted and sentenced, as highlighted earlier on. Aggrieved, they presented three memoranda of appeal consisting 12 grounds to assail the said decision. However, we take no liberty to reproduce them much as they conveniently boil down to one decisive ground; W hether the prosecution case was proved beyond reasonable doubt against the appellants. The first appellant was represented by Mr. Leonard Magwayega, learned Counsel. Mr. Juma David Mwita, learned Counsel appeared representing the second and third appellants while the respondent Republic had the service of Mses. Mwajabu Tengeneza, learned Principal State Attorney and Happiness Machage, learned State Attorney. Upon adopting the first appellant's supplementary memorandum of appeal, Mr. Magwayega contended that; one, that the third appellant's cautioned statement (exhibit P2) was wrongly admitted in evidence for contravening sections 246 (2) and 263 of the Criminal Procedure Act, Cap 20 (the CPA) thus liable to be excluded from the record. He added that, even the remaining oral confession could not find conviction. Further, Mr. Magwayega asserted that, equally, the testimony of PW4 was liable to be excluded from the record as his statement containing the substance of his evidence was not read out during committal proceedings contrary to section 246(2) (3) of the CPA. Further, it was argued that, during the trial, section 289 (1) (2) and (3) of the CPA was not complied because there was no notice to call additional witness issued and served on the appellants. Two, even if the third appellant had confessed before a policeman (PW3) as alleged, still the alleged confession ought to have been reduced into writing and presented in evidence which was not done. Three, that being one of the eight people previously suspected in the charged offence, PW6 had interest to save, hence not reliable to say that he witnessed the recording of the statement third appellant's cautioned statement. Much as also, the recording of the statement was done in the presence of the OC-CID. Prompted by the 5 Court, with respect to the trial court's findings, Mr. Magwayega contended that, there was no proof of death because, possibly, the allegedly discovered head and body did not belong to the deceased. On his part, Mr. Mwita concurred with Mr. Magwayega that due to the said shortfalls, the prosecution case was not proved against the appellants. Additionally, he contended that, the second appellant was not properly guided much as the cautioned statement was recorded contrary to section 58 of the CPA. Ms. Tengeneza readily supported the appeal. She began by attacking the evidence of PW4 and the reliability of exhibit P2 contending that, their admission in evidence contravened section 246 (2) of the CPA. Regarding exhibit P2 and its evidential value, she asserted that, it was neither read during committal proceedings nor was a notice to call additional witness issued in that regard. She added that, such evidence should have not founded conviction as the trial court did and upheld by the High Court. Therefore, Ms. Tengeneza urged us to discount the two pieces of evidence. As regards the third appellant's alleged liability, Ms. Tengeneza argued that, he admitted to have told the truth and lies only to save his skin and 6 therefore, it amounted to no confession much as very seldom than not, was a conviction based on evidence by co-accused (the second appellant) acceptable. Supporting her argument, she cited our decision in Flano Alphonce Masalu @ Singu and 4 Others v. R (Criminal Appeal 366 of 2018) [2020] TZCA 197 (30 April 2020; TanzLII). Concerning the issue of the appellants allegedly having led to the discovery of the dead body, Ms. Tengeneza contended that they only led the people to the forest and not to the specific place where the dead body was abandoned. She added that, the case was poorly investigated since the said head and body were not scientifically proved to be that of the deceased as held by the trial court. Moreover, Ms Tengeneza implored the Court to discount the Post Mortem Report (exhibit PI) because it was neither listed nor read out during committal proceedings. Finally, she contended that the evidence of PW6 that he witnessed the third appellant's cautioned statement being recorded, ought be taken reservedly because he was a co-suspect with interest to save. After hearing both sides, as intimated earlier on, the main ground is whether the prosecution case was proved beyond reasonable doubt against the appellants. We note that, in reaching at its decision, the learned trial judge relied on the second appellant's cautioned statement, oral confession of the third appellant and the evidence of PW6. At page 98 of the record of appeal it reads thus: "Having considered [th at exhibit P2] was not objected and that PW6 was not challenged.....Iam o f the considered view that, this court can re ly on this evidence... Therefore, in term s o f the oral confession and the cautioned statem ent, it is dear that the deceased was kille d by the accused persons". We shall begin with the second appellant's cautioned statement (exhibit P2) versus criminal liability of the co- appellants. We note that the alleged confession of the second appellant left much to be desired, as rightly contended by Ms. Tengeneza. It is so, for three reasons; one, the contents of the statement of PW3 was not read out during committal proceedings, contrary to section 246(2) of the CPA as it rendered that exhibit inadmissible. Let alone the fact that, in that regard, no notice for additional witnesses was presented in terms of section 298 (1)(2) and (3) of the CPA. Two, according to PW4, the cautioned statement was 8 procured in the presence of another police officer, the OC-CID which implied that the second appellant was not a free agent. As such, the purported cautioned statement is liable to be excluded, as held by the Court in Friday Mbwiga @ Kameta v. R (Criminal Appeal 514 of 2017) [2022] TZCA 627 (30 September 2022; TanzLII). Equally so, is the post mortem report (exhibit PI). However, since previously, PW6 was the appellants' co-suspect having interest to save, his evidence against the second appellant ought to have been taken with caution. For these reasons therefore, together with the testimony of PW4, exhibit P2 is excluded from being considered and relied in evidence. We want to stress that, in the absence of the second appellant's cautioned statement which the learned trial judge considered significant, nothing would remain to sustain the conviction of the appellants. Moreover, we find the third appellant's alleged oral confession to be inconsequential as no explanation was given for it not to be reduced into writing. As such, Ms. Tengeneza rightly conceded to the appeal and we agree with her that the prosecution case was not dutifully investigated and proved In conclusion, we find the appeal to be merited and we allow it. We quash the convictions and set aside the sentences meted out on the appellants. We also order their immediate release from prison unless held for the other lawful cause. DATED at MUSOMA this 12th day of December, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 13th day of December, 2024 in the presence of appellants in person, and Mr. Zarubabel Ngowi, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. 10