HAJI MOHAMED OMARY 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM CRIMINAL SESSION CASE NO. 45 OF 2023 REPUBLIC VERSUS HAJI MOHAMED @ OMARY & ANOTHER JUDGMENT Date of Last Order: 02.12.2024 Date of Judgment: 10.02.2025 NGUNYALE, J. are accused persons namely HAJI MOHAMED @ OMARY and MOHAMED ALLY MKUI @ ABUU are before the court facing with the Information of Murder Contrary to Section 196 and 197 of the Penal Code Cap 16 R. E 2022. Earlier, it was alleged by the prosecution side that the accused persons are charged that on the 30th day of May, 2022 at Nzasa B in Mbagala area within Temeke District in Dar es Salaam Region did murder one SAID MUSSA MHANDO. According to the facts gathered from the records presented during preliminary hearing and the evidence gathered during trial, it was alleged that on the fateful date 29.05.2022 PWI Abas Shaban (22) a motorcycle rider famously known as bodaboda handled his motorcycle with Reg No. MC 647 DGS make TVS to his fellow cyclist (the deceased) at around 22:00 hours for carrying passengers at night. From the time when the said motorcycle was handled, the deceased could not be found or reached through his phone number. Efforts were made to find him around but they ended in vain. Ttle incidence was reported to Mbagala police station for further steps of inquiry on the missing of the deceased. According to PWI it was !ater established that, the deceased was hired by bad people who caused his death and robbed the motorcycle. nIe evidence of PW4 Jamila Hussein Dilunga (44) was to the effect that, the deceased was seen by the people around his street at midnight (02:00 hours) on 30.05.2022 while in bad condition. lbose people awaked the witness and she went to witness the deceased. By then the deceased was unconscious, just snoring. It was the prosecution case through PW8 WP 5340 Dt Sgt Hawa (40) and PW4 that, the deceased passed away while in transit from the crime scene to Muhimbili National Hospital. It was the testimony of PW2 DC Yona Felix (30) that, on 09.06.2022 the 1;t accused person went to Mbagala Police Station inquiring about another motorcycle No. MCl16DAD which was seized by the police in another event of robbery of properties from !rtain woman. Ure lst accused persons alleged that he had an agreement to use such motorcycle for carrying passengers. In the course of oral interrogation between PW2 and the lst accused person, the 1;t accused person is said to have told the witness that he participated in the event of murder which occurred at Nzasa B where they hired a motorcycle which later they robbed it after they murdered a cyclist. He mentioned the 2-d accused persons as the person they cooperated in the event of robbing the motorcycle and murdering the deceased in this case. It was the testimony of PW5 Insp John (36) that basing on the information gathered from the lst accused person they managed to arrest the 2-d accused person at his home on 01.07.2022 midnight after being directed by the first accused person. Upon his arrest, on the same night between 03:45 and 04:27 hours he was interrogated and his statement was recorded by way of caution statement by PW7 E7578 Dt Sgt Jonathan (51). TIe said caution statement was admitted as Exhibit No. PE3. In the caution statement the 2-d accused person confessed having committed the offence in cooperation with the lst accused person. ne other witness PW6 informed the court that he interrogated the 1;t accused persons and recorded the interrogations by way of caution statement on 9th day June, 2022 between 18:15 hours and 18:52 hours The alleged caution statement was admitted in evidence as exhibit No. PE2. According to PW6, the 1;t accused persons confessed having murdered the deceased in the process of robbing a motorcycle from him on 30th May, 2022. PW3 Dr. Lea Furahini Mlango said that, she conducted postmortem examination against the deceased body and prepared a report about cause of death. are report was admitted as exhibit No. PEI establishing that cause of death was traumatic brain injury because the deceased skull was disturbed by an object. On defense, DWI Haji Mohamed Omari (28) completely disassociated himself with murdering the deceased, instead he said that he was arrested on 9th June, 2022 at Mbagala Police Station where he went to report after he was discharged in the armed robbery case before Temeke District Court. He was told by the police to keep reporting at the police station. It was not true that he confessed having committed the offence of murder. He was just forced to admit that he murdered the deceased when he was being tortured by the police officers, no caution statement was recorded from him. are police officer recorded his particulars only. He never robbed a motorcycle. DW2 Mohamed Ally Mikui (26) testified that he was arre: idnight of 25.06.2022 while asleep. He was taken to Mbagala police station where he was tortured while handcuffed. He never confessed to the offence of murder because he did not commit such an offence against the deceased. Generally, in proof of criminal charges, the prosecution side is vested with the duty to prove the charges against an accused person beyond any reasonable doubt. See the provisions of sections 110(1) and (2) and 112 of Evidence Act, [Cap. 6 R.E 2022]. And the standard of proof is that of beyond reasonable doubt as per the requirement under section 3(2) of the Evidence Act, [Cap. 06 R.E 2022]. are standard and burden of proof beyond reasonable doubts were also given consideration by the Court of Appeal in the case of Nathaniel Alphonce Mapunda and Benjamin Mapunda Vs. R [2006] TLR 395, when the Court observed thus: "As is well known, in a criminal trial the burden of proof always lies on the prosecution. Indeed, in the case of Mohamed Said Vs. R this Court reiterated the principle by stating that in a murder charge the burden of proof is always on the prosecution, and the proof has to be beyond reasonable doubt' In determining whether the prosecution proved their case beYond reasonable doubt against the accused person, I will stand firm to see whether all elements of murder were proved against the accused ;M person . Tbere is a plethora of authority that provides for essential ingredients of the offence of murder, the prosecution has to prove the followings elements that establish the offence of murder to include one, there is the death of a person, two, the said death of that person is unnatural, three, it is the accused who caused the death of deceased and four, the accused acted with malice aforethought. See the CAT case of Philimon Jummane Agala @ 34 versus The Republic, Criminal Appeal No. 187 of 2015. After having in mind, the facts of the case and the evidence gathered during trial, my starting point is to determine the issue whether the said SAID MUSA MHANDO died and his death was unnatural. Upon a careful scrutiny to the evidence gathered there is no dispute that the deceased died on 30th day of May, 2022. are testimony of PWI is to the effect that he handled the motorcycle to the deceased at the night of 29th May, 2022 and from that time the deceased was not seen until when it was established that he died. PW4 and PW8 who saw the deceased at the crime scene few minutes before he met his death said that he was in a very bad and deteriorating condition. PW8 confirmed that he took the deceased body to the Mortuary of Muhimbili National Hospital. Tbe other crucial evidence that the deceased met unnatural death was gathered 6WKFMFX\ from PW3 Dr. Lea Furahini Mlango (47) the Medical Doctor who testified in part: "The deceased had dirty cloths full of dust and he had injuries to his head. I did external and internal examination. Externally, I observed the wounds on his head and face. He had sharp wounds to the face and head. We conducted surgery of the body from head to the stomach. On the head we found damu iliyovilia also fuvu la kichwa lilikuwa limepasuka. The brain had been disturbed. In the examination we detected that, cause of death was traumatic brain injury" Her evidence as extracted from the proceedings, elaborates a clear picture that the deceased faced unnatural death. Her findings were clearly recorded in the postmortem examination report Exhibit No. PEI Tbe evidence on record categorically leaves my mind without doubt that the deceased died and his death was unnatural My further step is to determine whether the accused persons were the perpetrators of the offence of murder against the deceased with malice aforethought. It is a settled rule that, for the accused to be convicted for any criminal offence, it must be proved that, the offence was committed and the same was committed by the accused persons. TIe prosecution has a special duty to prove beyond reasonable doubt that it is the accused persons who committed the offence. In the case of Samsoni Matiga versus Republic, Criminal Appeal No. 205 of 2007, the Court of Appeal of Tanzania sitting at Mtwara reemphasized the principle that, the prosecution evidence must be such strong leaving no doubt to the liability of the accused person. TIe very evidence should irresistibly point a finger of guilty to the accused person and not to any other person. In the other case of Anton Kinanila and Another versus Republic, Criminal Appeal No. 83 of 2021 the Court of Appeal sitting at Kigoma insisted that, the prosecution side bears the essential burden to prove beyond reasonable doubt that, the offence was committed and it was committed by the accused persons in court to the extent prescribed by the law. After a careful scrutiny of the evidence gathered, there is no direct evidence which links the lst and 2-d accused persons behind the murder of the deceased Said Musa Mhando. nIe evidence available is purely circumstantial in nature. The only evidence relied by the prosecution side to link the 1;t and 2-d accused persons with the offence of murder of the deceased was exhibit PE2 the caution statement of the 1=t accused person, exhibit PE3 the caution statement of the 2nd accused persons and oral confession alleged to be made by the lst accused person before PW2 the police officer immediately before his caution statement was recorded. Such evidence is seriously contested by the accused persons through their defense as made on 2-d December 2024. Generally, the best witness in a criminal trial is an accused person who voluntarily confesses to having committed the offence of which he is charged. This position can be fetched from the court of appeal decision of Ally Mohamed Mkupa versus Republic, Criminal Appeal No. 2 of 2008 where the court held: '"...the very best evidence is of a person who confesses freely and voluntarily to have committed the offence in any criminal trial that is an accused person who confesses his guilty." In this case it is observed that both the accused person’s caution statements were admitted though they were either retracted or repudiated. In their defense, the first accused person said that, no caution statement was recorded from him, he was just tortured to admit that he murdered the deceased. Tbe police officer just recorded his personal particulars and proceeded with torture as a means to force him to admit the offence. nIe 2-d accused person came with a similar story that he was seriously tortured at Mbagala Police Station but he denied to have committed the offence of murder. In order to resolve the controversy between the parties to the case, I will essentially state the rules governing retracted and repudiated 9 ltD„„„Adf, confessions in view of the circumstance of the case at hand in order to end up with a fair and balanced decision relevant to principles of criminal justice. In criminal prosecution, essentially the court must be satisfied beyond reasonable doubt that the accused person manifestly confessed to have committed the alleged offence. From that view, the court approaches with great caution the evidence related to confession for it to be satisfied beyond doubt that it is true that the accused confessed, if there are doubts about truthfulness of the caution statement corroboration is obligatory. In the present case both accused persons retracted their statements which were recorded by way of caution statement. ne accused persons stated categorically that the statements were not obtained voluntarily from them. Each alleged to be brutally tortured and mistreated by the police officers forcing him to confess. ne fact that the statements were retracted, takes my mind to the position in the case of Tuamoi versus Uganda EALR 1967 Vol 1 where the court had this to say; - "a trial court should accept with caution a confession that was repudiated or retracted and must be satisfied that the confession was true. " Confessions can be acted upon if the court is satisfied beyond doubt that stage of concluding the case, I move further to look to the depth of the retracted confession for its truthfulness to be judged in the context of the entire prosecution case. are retracted or repudiated confession cannot be relied upon in the circumstance where its truth is doubtful. In such circumstance corroboration by independent evidence is obligatory. And it should be noted that evidence which need corroboration cannot corroborate the other; this means that the cautioned statement of the 2"d accused cannot be used to corroborate the cautioned statement of the 1;t accused. Ibis was the position in the case of Mashimba Dotto @Lukubanija versus Republic, Criminal Appeal No. 317 of 2013 (Unreported) where it was said: ".......it is trite law that evidence which itself requires corroboration cannot corroborate another. " Tbus, relying on a retracted or repudiated confession which its truthfulness is doubted without independent corroboration it will be unsafe to rely on such kind of confession. are courts do not act upon the retracted confession without having assurance from some other sources as to the guilt of the accused. In Tuamoi Case (supra) corroboration may be of great necessity in exceptional circumstances. In Tuamoi Case (supra) the Court observed further: - "We should summarise the position thus - a trial court should accept any confession which has been retracted or repudiated or both retracted and repudiated with caution and must before founding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true. The same standard of proof is required in all cases and usually a court will only act on the confession, if corroborated in some material particular by independent evidence accepted by the court. But corroboration is not necessary in law and the court may act on a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true." In the present case corroboration is necessary after considering where the prosecution initiated its investigation. Ure investigation was initiated by PW2 when he received the 1;t accused person at the police station on 9th June 2022. In the first place it was said that the lst accused persons appeared at the police station making inquiry of his motorcycle which was involved in another incidence of robbery as testified by PW2. Tben the 1;t accused person told PW2 that he participated in the event of murdering the deceased SAID MUSA MHANDO after they robbed a motorcycle from him. Unfortunately, the motorcycle MC 116 DAD which the witness PW2 said that he seized from Kilungule and the lst accused claimed ownership on it at the police station on 9th June, 2022 was not tendered. Likewise, the identity of the said motorcycle was not proved. Neither the said motorcycle nor the registration card were tendered in court as an exhibit to link the accused with the series of events connecting him with the present case. Ttre court must be satisfied beyond reasonable doubt that, the lst accused person actually went to the police station on 09.06.2022 to claim his motorcycle. Otherwise, the connection between the lst accused person and the said motorcycle is hanging. Ttrerefore, PW2 in his evidence has testified nothing substantial to corroborate the impugned caution statements. In his testimony PWI said that he handled the motorcycle No. MC 647 DGS to the deceased. are said motorcycle was given to him by one woman called Maria Gregory through an oral agreement. But neither the said woman by the name of Maria Gregory nor the motorcycle registration card were tendered in court to prove ownership of the motorcycle and that the woman had an agreement with the cyclist PWI. Ibis is a criminal prosecution, the court ought to be satisfied beyond reasonable doubt that the 1;t accused person made follow up of a Motorcycle No. MCl16DAD at the police station on 09.06.2022 and he had that reason to make follow up otherwise his testimony that he went to report about his case which was concluded at Temeke District Court raises a reasonable doubt to the prosecution case. Tbe fact that the starting point of investigation of the present case raised doubt, I refrain from grounding conviction based on the retracted or repudiated confessions of the accused persons. Even the alleged oral confession from the accused person to PW2 was not properly founded for lack of corroboration. In the Indian persuasive case of Subramania Gounden v. The State of Madras (1958 SCR 428) it was observed that; 'Thus, retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false. Since the confessions were retracted, the court shall not base a conviction on such a confession without corroboration; as it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession IS true and voluntarily made and has been corroborated in material particulars. " As pointed out earlier that the key witness who revealed that it is the 1;t accused person who participated in the killing is the PW2 who is the police officer and an investigator, practice demands after an accused person confesses through cautioned statement then he should be taken to a Justice of Peace who is a free agent for extra judicial statement taking where the accused person is also expected to restate the confession to the Justice of the Peace. In the absence of the extra- judicial statement of both accused persons and considering that the accused persons have repudiated !ments the cautioned statement raises a question mark on their truthfulness, hence one can not confidently hold that the cautioned statements speak nothing but the truth. Tbe court of appeal in the case of Ndorosi Kudekei versus Republic, Criminal Appeal No. 318 of 2016 had this to say: "... With the absence of the extra judicial statement, the trial judge was not placed in a better position of assessing as to whether the appellant really confessed to having killed the deceased or not." In the case at hand, upon a thoroughly evaluation, the court is of the settled opinion that caution statement of the 1;t accused persons exhibit PE2 which was recorded by PW6 and caution statement exhibit PE3 as recorded by PW7 cannot ground conviction due to the doubts observed herein above. Tbe court do take caution on the possible dangers of relying to such retracted or repudiated confession. ne fact that the offence was not proved beyond reasonable doubt, it is irrelevant to consider the issue of malice aforethought. In the case of Nyerere Nyague versus The Republic, Criminal Appeal No. 67 of 2010 Court of Appeal of Tanzania at Arusha, it was observed that: "Even if a confession is found to be voluntary and admitted, the trial court is still saddled with the duty of evaluating the weight to be attached to such evidence given the circumstances of each case (See TUWAMOI v UGANDA (1967) E. A 91 STEPHEN JASON & OTHERS v R (supra). And lastly, everything bejng equal the best 15 evidence in a criminal trial is a voluntary confession from the accused himself (See PAULO MADUKA AND 4 OTHERS v R Criminal Appeal No. 110 of 2007 (unreported)" Having said and done, the discrepancies in the prosecution case leads the court to the immutable decision that the offence of Murder was not proved beyond reasonable doubt the universally accepted standard in criminal justice. Therefore, the accused persons HAJI MOHAMED @ OMARY and MOHAMED ALLY MKUI @ ABUU are hereby acquitted for the Information of Murder Contrary to Section 196 and 197 of the Penal Code Cap 16 R.E 2022. It is so ordered. Dated at Dar es Salaam this 10th day of February, 2025. /( ':'/{ On' -’'!---I +++ 1:FUn\V=b \ f " \X\:P#'’"'--'=:'.._ >' !-\ {: P,W nF'’- -\,kc :f '& /“:PW/’ AT&,q.\. \;-t,=-!, ::„ "':/ };t \.T-’ ,}f} \$ ). D lizi ql ':’:+ '’t,!b. \'>„ I \t en\ t\, - : - ’B. '’ ':':'$ / >, ; “.,..:-", , ' ’.: ,. JUDGE \ / Judgment d6tivered _this'10th day of February, 2025 in presence of Ms. Debora Mushi Senior State Attorney for the Republic and the accuse persons represented by Mr. Ramadhan Makapge Learned Counsel. JUDGE 16