20000612 TZCA Dar es Salaam2

C:RTI·HN.°\:L APPEAL NO. 4 OF 1997 1 o JAHGS ss//'o M.USSA i. • 0 ·~ • • APPELLANTS 2. IX)'rTo 0 TANU ~ AND 'E£ RBPUBLI C. • RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Hwanza) ( Chi pet a, cT o) dated the 8th day of Februe.ry? 1996 in J U D GE lLE NT This appeal arises from the conviction of murder and. the sentence of death passed on the appellants by the High Court (Chipeta, Jo) sitting at Mwanza. The facts of the case may be stated briefly as follows: The deceased in the company of another woman (PW1)~ the two appellants and another man who was not in court, went to drink pombe at the home of PW2. At night fall the. party lefto The case for the prosecution was that on the way the man who was not in court raped Pld1. The two appellants too raped the decea.sed after which 'they killed her a11d L ... abandoned her dea.d body in the bush. rhat body wa.s discovered in the 1 bush about two and a hnlf days latero 'The appellants denied the charge and each put up an alibi. The trial ,judge accepted the prosecution case and, rejecting the defences of alibi 7 convicted the appellants for murder. The convictions ••• /2 ,,,,.,,-. \ ~ A 1 were based primarily on the confessions of the appellants which the trial judge found to have been repudiated but corroborated. The said confessions · were made to Pv/3, Alex Nda½:i, in hi_s capa.city as Ward Secretary and Justice of the Peaceo But the sa.id coI.).fessions \.1ere not reduced into writing.- This was not entirely satisfactory. l;Je think that the better practice was for PW3 to reduce the confessions into writing in accordance with the laid down procedure for recording confessions of a.ccused persons.. This facilitates the procedure of dealing with the confession a.t th"- trial especfally \"lhere the question of its ad1nissibility is or might be in issue., ;r:n the instant case there is ample evidence to show that the question of the admissibility of the appellants 1 confessions was raised but was never tried. For instance, in answer to c1~oss-examination PW3 admitted that the confessions were made in the immediate presence of members of Sungu.sungu, the tre.ditional security force. Under the same cross-examination the witness denied thnt the ci.ppellants confessed as a result of the assaults inflicted on them by Sungusungu. And. this :·ulrr.ir,.ated in the a.ppellants' defeuc;es 1ll court a.l:i.vg_;_ng ~u1 .;ure by, E:ungusungu and denying he.ving ever confessed to the offence charged despite such torture. No tric.l within _trial was .heid by the learned ~ judge to. try the issue of voluntariri~ss or otherwise of the alleged confessions even though that issue was raised in the course-of prosecution case.. To the extent of such omission the trial ;judge was in error., It is apparent that the omission may have been contributed to by the fact that the alleged conf_essio11s were not reduced into writing. But the point is that had the issue been tried by holding a trial within a trial we cannot say for certain that the trial judge would have found the confessions voluntary and hence a.dmissible. 0 •• /3 _, The learned judge went on to find that the confessions, the admissibility of which was not decided, were repudiated but corroboratedo First, there w2.s the evidence of PH2 who testified that· he saw the appeJ.lants in the company' of the deceased when they went to drink pombe at his home and went away at night fallo But this witness said that he - did not know the appellants before; he only saw them for the first time that day o Yet when the appellants were arrested, and it is not clea.r from the evidence how they .-,ere pointed out, FW2 did not identify them at an identification paradeo He only identified them in the dock during the trial. We think that dock identification is not cogent enough evidence to provide corroboration of the.alleged confessionso The learned judge found corroboration in the discovery of the dead body of the deceased, which discovery proceeded from the appellants' COI:\fessionso However there is serious dispute about this issue~ P\'13 testified tha.t it is the appellants who, after confessing to the killing, led the villagers and Sungusungu to the scene where the dee.d body had been discoveredo But the appellants vehemently refuted this and claimed that it ·.vas the villagers, led ty Pl:J3, who took the_m to the grave of thv deceasedo Thus it amounts to the word of P1:13 as against that of the appellantso In the circumstances it seems there was no good reason for preferring the word of p\,!3 to that o·f the appellcmts, especially bearing in mind the presence of Sungusungu who might have for?ed the appellants to the scene which was already known to the villagerso The so called evidence leading to.the discovery of the body of the deceased, therefore, was relia.ble and could not afford corroboration of the confessions. And lastly the trial judge found corroboration in the evidence tha.t a watch (Exho P4) found in possession of the second appellant was the property of PW1, the co-victim with the deceased of the rapes on the night of the incidento It is claimed that ·during· investigations P\111 • • o/4 ha.d identified the watch as belongin.g t.o her. But a.t the trictl FW1 turned into a hostile witness and consequen~ly became a worthless witness. In those circumstances· therefore it was not 0stablished that the second a.ppel1ant \'.1a.s found in possession of any stolen prop0rty. To sum up then, the confessions which to 2. very large extend formed the basis of the ay.:.pellants' convictions, were obtained in circumstances which -were tainted w:i.tb torture thereby rendering them a little or no probative value,. Even if the confessions, were ci.dmi.ssible, which in our view.was arguable, they were repudiated and there was no·cogent evidence to corroborate them. Thus we are sa.tisfied that the convictions were bad in law, a.nd the learned State Attorney properly did not seek to support them. The appeal therefore succeeds. The convictions are quashed and sentences set aside. The appellants are to be set· free forthwith unless they are otherwise lawfully held in custody. DAT]";_;D at DAR ES E'-ALAAM this 12th day of June,· 2000. L. H~ Hl\.KD-1E. JU,S'l'I Ct OF M-tE1i..L r.....• ... , ...... - . . . . . , , . • ~ - ~ - - - "L\- JU::,TI CE OF A.P?T±'tL .. K.S.K.LUG!'.KJNGIHA JUSTICE OF AFPJt.::AL this is a true copy of the original. .....