Republic v Augustino Fabiano

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL SESSIONS CASE NO. 8947 OF 2024 THE REPUBLIC..................................................................... PROSECUTOR VERSUS AUGUSTINO s/o FABIANO........................................... ACCUSED PERSON JUDGMENT 14h August and 24h October, 2024 MIRINDO, J.: Augustino Fabiano of Kiru Erri Village in Babati District within Manyara Region is being charged before the High Court at Manyara Sub-registry with murdering Maria Mathias contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E. 2022]. The prosecution case was led by learned Senior State Attorney, Ms. Blandina Maswa and Ms. Anifa Ally, learned State Attorney. Mr. Kuwengwa Ndonjekwa, learned defence counsel, led the defence of the accused, Augustino Fabiano. The accused entered his defence following the ruling that he had a case to answer and at the end of the defence, counsel for both sides presented their final written submissions. The duty of the prosecution in a murder charge under section 196 of the Penal Code is to prove beyond reasonable doubt (i) unlawful killing of a human 1 being, (ii) unlawful killing was caused by the accused person, and (iii) the unlawful killing was done with malice aforethought. In the instant case the prosecution brought five witnesses and tendered four exhibits consisting of the post-mortem report, accused's cautioned statement, deceased's statement, and the sketch map. The first piece of evidence in support of the information of murder is circumstantial evidence. Maria Mathias of Kiru Erri Village in Babati District within Manyara Region was found dead on 4 January 2024 about eleven at night at Kijweni area in Kiru Erri Village. About that time, Ezekiel Paulo, the Chairman of Kiru Erri Village, the second prosecution witness, received a phone call from Chrispin Paulo who told him that a person had been attacked and had fallen down at Kijiweni area. Ezekiel Paulo rushed to the scene and saw the deceased body lying down. A group of people had gathered at the scene. There were many blood spots in the area and several stones were thrown towards the deceased body. When Ezekiel Paulo moved closer to the deceased body, he identified the deceased as Maria Mathias through electric bulb lights. He communicated with police who arrived at the scene at three in the morning in the company of Assistant Inspector Ally Ibrahim of Kiru Police Post, the third prosecution witness. The police, led by Ezekiel Paulo, the second prosecution witness, went to the house where the deceased spent the night before the incident and along the way they saw many blood spots to that house and from 2 that house to Kijiweni area where the deceased body was lying down. In that house they saw many large stones. There is no doubt that Maria Mathias is dead. It is also clear that her death was unlawful. Her death was occasioned by injuries leading to her excessive bleeding. This conclusion is founded on the post-mortem examination report. Police took the deceased body for post-mortem examination at Babati Town Hospital commonly known as Mrara Hospital. The medical doctor. Fadhili Musa Kalokola who conducted the post-mortem examination on 8 January 2024 was the first prosecution witness. He testified that the deceased died three days before due to haemorrhagic shock caused by excessive bleeding. The deceased body had large injury at the back of her body from the head to the neck. The head injury had brain particles. The post-mortem report was admitted during the preliminary hearing on 26 January 2024 as exhibit P.l. This conclusion is corroborated by the testimony of Ezekiel Paulo and Inspector Ally, the second and third prosecution, respectively, witnesses who saw blood spots where the deceased was lying and injury on or near the deceased neck. I am therefore satisfied that Maria Mathias is dead and the next question is who caused her death. There were many people at the scene but none was immediately suspected of killing Maria Mathias. Both Ezekiel Paulo and Assistant Inspector Ally are agreed that none was immediately identified or suspected of killing Maria Mathias by people who were at the scene. Even the accused 3 testified as much in cross-examination. According to Assistant Inspector Ally, they were unable to arrest suspects at the scene because they were unknown to them. Also part of circumstantial evidence is the deceased complaint lodged at Kiru Police Post. The fifth prosecution witness, WP 8910 Detective Corporal Flora Kiriba, testified that the deceased, Maria Mathias, lodged a complaint that she was beaten and the house in which she staying was burnt. She recorded the deceased's statement under section 10 (3) of the Criminal Procedure Act [Cap. 20 RE 2022] and this statement was admitted as exhibit P4. The deceased's complaint is that at 11.30 in the night of 2 January "2023" she was in her beer shop together with her three customers. Among those customers was one Lagweni. Lagweni took the deceased cell phone and flashed its torch outside of the house surroundings. One Sifael Gidashamu alias Aea from the house of one Marry William alias Mama Beate appeared there and asked Lagweni to give him the deceased's phone. When Lagweni gave him the cell phone, the deceased moved from the shop and seized the phone from Sifael Gidashamu. After the deceased had seized the cell phone, Sifael Gidashamu swore that he would return after getting drunk with his team and punish her. Sifael Gidashamu soon returned with three persons all of whom were residents of Kiru Erri Village. These were Emanuel Isaya, Nicola Pontini and Fabiano Agustino. These men threw many stones towards her beer shop and phoned other men who came to 4 the scene. Mama Beate, the deceased's neighbour, came near the scene and directed the men to ensure that they killed Maria Mathias on that day. The men responded that the work was complete but after the work Mama Beate should prepare for them a local brew called "pombe" after the work. The men ran away when the police came but returned later with large stones. They hit her house door until it opened and entered in. The deceased was told to make her last prayers because they were going to destroy her with all her assets. They caught her and hit her with stones on her left eye. When they wanted to stab her with a knife, one Mnama, her customer who was with her, pushed them away and the deceased ran out and went to hide in the maize farm. The men ordered Mnama to leave and after he had left, they took several items from the beer shop and set on fire the remaining items. They set the house on fire. The deceased had rented the house from one Deonis Silivester. Seeing the house being on fire while on the farm, she sought for transport and went to report to Kiru Police Post. Using the deceased's report, police linked her murder with the persons who reportedly beat her and burnt her house. On 8 January 2024, police were tipped-off that Augustino Fabiano was at Kadadaa area in Kiru Erri Village. They arrested him and took him to Kiru Police Post and later Babati Police Station. The accused pleaded an alibi after duly lodging notice of alibi when the first prosecution witness had testified. During the defence hearing, the accused 5 stated that on the day of the deceased's death he was on his farm at Faraji Kitongoji in Kiru Erri Village from seven in the morning to seven in the evening. When he returned home, he bathed and after the evening meal he went to sleep. He was awakened at twelve midnight by his wife, the second defence witness. His wife had been awakened by the voices of people raising alarm. He went to Kijiweni area where the alarm was coming and, on the way, he met, Felestiani Qutau, the third defence witness. At the scene he found many people. He saw the deceased body and he stayed there until the police came and left with the deceased body. Mr. Ndonjekwa contended that the prosecution failed to connect the events under circumstantial evidence against the accused. For the duty of the prosecution to connect the events with the accused, the defence counsel drew the attention of this Court in the case of Awadhi Gaitan alias Mboma v R (Criminal Appeal No. 288 of 2017) [2020] TZCA 205. The learned State Attorney, Ms. Ally, contended that there was there was such a link. The learned State Attorney, Ms. Ally, pointed out that the deceased's statement mentions various people who were involved in the burning of her house. The accused is among the persons mentioned by the deceased. She stressed that involvement in the burning of the deceased's house was evidence of intention to kill the deceased. She concluded that this statement is clear evidence that the accused was involved in the murder of the deceased. It is the 6 argument of the learned defence counsel, Mr. Ndonjekwa that Augustino Fabiano was not mentioned by the deceased person. The one who was mentioned, the defence counsel argued, was Fabiano Agustino. Implicit in this argument is Augustino Fabiano and Fabiano Agustino are two different persons. There is no doubt that the deceased's statement mentions "Fabiano s/o Agustino" among the four persons who attacked her and set her house on fire on the night of 2 January 2024. Those four persons promised to kill her on that day but she ran away after her male customer, Mnama, who was around the house pushed them aside. The deceased statement was recorded under section 10 (3) of the Criminal Procedure Act and two issues arise regarding its recording and weight. The first issue is in connection with the time in which the statement was recorded. When was the deceased's statement recorded at the police station? In her testimony at the trial, the fifth prosecution witness, WP 8910 Detective Corporal Flora Kiriba, said in-chief that: I am a police officer, at Kiru Police Station. I attended Police course at Moshi CCP between 2011 to 2012. I have 13 years' experience as a police officer. My duties are to protect citizens and their properties. My other duty is to receive clients and record statements, when they bring their complaints. On 3/1/2024 at 8 AM, I was at work at Police post Kiru, with my normal duties of attending clients. A woman called Maria Mathias came around 7.20 PM. She came to complain that she was beaten and her house burnt. I interrogated 7 her and took her statement. I exchanged the shift with another police officer at 8 PM. I exchanged shift with another police. I exchanged shift with J 845 PC Nicholaus. He told me that Mariam came at night. She had suffered injuries by being beaten and her house had been burnt down. He gave her PF3 for treatment. I opened the case after recording her statement. I opened the case of arson. I opened the case Khiru RB 193/2024. I began to record the statement at 7.20. I gave the complainant RB and gave information to the head of the police post so that he could register it at Babati Police Station. We did not record the case at Kiru because it is small police post which does not have its own Investigation Register. He told me that he registered the file as Babati IR 40/2024. This portion of evidence indicates that the statement was recorded from 7.20 in the evening by the fifth prosecution witness who was on duty from the morning of 3 January 2024. The fifth prosecution witness account that she recorded the statement in from 7.20 is inconsistent with the time recorded in the statement which is "13.20 HRS." Even if I were to assume that the account offered by the fifth prosecution witness on the time of recording was an oversight or there was an oversight on my part in recording her account, there are still doubts as to the time of recording the statement. If the deceased reported at Kiru police station at night why was there delay in recording her statement given that police officers had initially seen the crime scene? 8 There are also doubts regarding the date in which the statement was recorded and in which the events leading to the recording of the statement took place. The date of the recording of the statement is "03/01" and the year "made" to read 2024. The year 2024 is illegible. I were prepared to hold this to be an oversight but given that the second sentence in the deceased's statement provides a different year, I have come to a contrary view. The second sentence reads in Kiswahili partly that: ...Nakumbuka tarehe 02/01/2023 Majira ya saa 22:30 hrs nikiwa dukani kwangu.... It may be argued that during the early days of a New Year people are prone to confuse years and so in the instant case, the fifth prosecution witness was referring to the year 2024. If other facts were in connection with the recording of the statement, I would have been persuaded with this argument and hold that this was a slip of the pen. Thus, there are doubts if the deceased ever recorded a statement at Kiru Police Post on 3 January 2024. Assuming that the deceased actually recorded the statement on 3 January 2024, the next issue would be the weight to be attached to it. This brings me to the provisions of section 10 (6) of the Criminal Procedure Act. Subsection (6) states that: 9 A statement by any person to a police officer in the course of any investigation may be used in accordance with the provisions of the law for the time being in force relating to the procedure for the adduction and reception of evidence, but not for the purpose of corroborating the testimony of that person in court. The essence of subsection (6) is that the statement made under subsection (3) is inadmissible to corroborate the testimony of its maker. Subsection (6) of section 10 embodies the common law rule against the admissibility of self-serving statements. The deceased's statement of 3 January 2024 being a prior out of court statement, not given on oath nor subjected to cross-examination, is a self­ serving prior statement with very limited evidentiary purpose as summed up in Cross on Evidence, 7th edn, [at 281] The general rule at common law is that a witness may not be asked in-chief whether he has formerly made a statement consistent with his present testimony. He cannot narrate such statement if it was oral or refer to it if it was in writing (save for the purpose of refreshing his memory), and other witnesses may not be called to prove it. The rule against hearsay...prohibits the reception of the statement as evidence of the facts stated , but there is an independent common law ban of proof of the previous oral or written statements of the witness as evidence of his consistency... In this case, the reason given for the ban (sometimes loosely described as 'the rule against narrative' or 'the rule against self-corroboration') was the ease with which evidence of this nature can be manufactured... But, generally 10 speaking, this can only be apposite when the witness is a party and, in any event, the ease with which evidence can be fabricated is a matter which should affect its weight rather than its admissibility. The recognition of the rule against the admissibility of self-serving statements recorded at police stations has further been addressed in RV Kelkar's Criminal Procedure, 5th edn, in connection with a slightly differently worded section 162 of the Indian Code Criminal Procedure Code of 1973 [at 149]: The section prohibits the use of the statements made to the police during the course of the investigation for the purpose of corroboration. It is based on the assumption that the police cannot be trusted from recording the statements correctly and that the statements cannot be relied on by the prosecution for corroboration of their witnesses as the statements recorded might be of self­ serving nature.... The limited evidentiary purpose of a statement recorded at a police station under section 10 (3) has been negatively expressed under section 10 (6) of the Criminal Procedure Act. It has been expressed in subsection (6) that the statement is "not for...corroborating the testimony of that person in court." As a general, the statement is admissible where the credibility of its maker is in issue was restated by Sopinka, J., et al, in The Law of Evidence in Canada, Butterworths: Toronto and Vancouver, 1992, pp. 307-308: There is a general exclusionary rule against the -admission of self-serving evidence to support the credibility of a witness unless his or her credibility has 11 first been made an issue... The rule is generally applied to prior consistent statements of the witness. Although contradictory statements may be used against a witness... "you are not entitled to give evidence of statements on other occasions by the witness in confirmation of her testimony" ... Two different rationales have been given for the exclusion of such evidence. The one most commonly relied on is that, due to the risk of fabrication, no person should be allowed to create evidence for him or herself... The other view emphasizes the valuelessness of such evidence since a witness' story is not made more probable or trustworthy by any number of repetitions of it... Moreover, it would take needless trial time in order to deal with a matter that is not really in issue... for it is assumed that the witness is truthful until there is some particular reason for assailing his or her veracity... [Reference omitted] This limited evidentiary purpose of the statement recorded under subsection (3) was considered by the Court of Appeal in Asangwili Mambuni v R, Criminal Appeal 79 of 1989. The statement of the first prosecution witness was admitted at the instance of the prosecution and marked as exhibit P.2. The witness was not cross-examined on it by the prosecution but was examined in -chief. The Court of Appeal held that this was wrong. The Court of Appeal held that the purpose of the admissibility of that statement is limited to impeaching the credibility of the first prosecution witness by the prosecution either by the defence or with leave of the court, by the prosecution in view of the provisions of section 164 (1) (c) of the Evidence Act. The Court of Appeal rejected the 12 Republic argument that the statement could be used to corroborate the testimony of the first prosecution witness under section 166 of the Evidence Act: ...Admittedly section 166 of the Evidence Act, 1967 permits the production of former statement to corroborate the testimony of a witness...However, it is our well considered opinion that the provisions of this section have qualified by the provisions of section 10 (6) of the Criminal Procedure Act, 1985... We say so because the Evidence Act deals with evidence generally whereas the provision of the C.P.A. deals specifically with evidence pertaining to criminal proceedings. In addition as the C.P.A., 1985 was enacted after the Evidence Act, 1967 the legislature had in mind the provision of sect. 166 when enacting Section 10 and intended to limit the application of the former section to the extent prescribed in subsection (6) of the latter section. We are therefore of the opinion that Exh. P.2 was improperly admitted. However, we concede that it could properly be admitted at the instance of the defence under Section 164(1) (c) of the Evidence Act to discredit the credibility of P.W.l. If this evidence cannot corroborate the testimony of its maker, it is not substantive evidence. There are several common law exceptions to the admissibility of self-serving statements. One exception which may be relevant in the instant case is that connected with prior eye-witness identification. This exception has been restated in Sopinka, J., et al, in The Law of Evidence in Canada, at page 313: 13 There is an inherent suspicion in testimony given by a witness identifying with certainty, for the first time, the accused in the witness box as the perpetrator of a crime that had occurred months and perhaps years before... It is natural to assume that a witness would identify the accused since he or she was the one arrested by the police and is prominently sitting in the prisoner's dock. Questions may legitimately be asked whether the witness is truly relying on present recollection in making such identification or whether he or she has been strongly influenced by the circumstances. Because such eye-wit-ness identification evidence in the court room is subject to frailty, it is permissible for the witness to testify about previous acts of identification to support his or her testimony; and this evidence can be given without any impeaching allegation having first been made... [References omitted]. The application of this exception was affirmed by the Court of Appeal for Eastern Africa in the frequently -cited paragraph in Mohamed bin Allui v R (1942) EACA 72 at page 73: ... in every case in which there is a question as to the identity of the accused, the fact of there having been a description and the terms of the description are matters of the highest importance of which evidence ought always to be given; first of all by the person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given. This exception means that that both the maker of the statement and the investigating officer must testify about the making of the statement and the terms of such statement complaint should be proved by the person to whom it 14 was made. A witness who provided evidence of identification at the police station (a previous occasion) should first testify about that identification and then other persons to whom the identification was made should testify about it. In the present case, both WP 8910 Detective Corporal Flora Kiriba and Maria Mathias should have testified. Obviously, since Maria Mathias is dead, this exception is inapplicable to the instant case. This finding brings me to the following question: Could the statement be admissible as a dying declaration under section 34 (a) of the Evidence Act [Cap 6 RE 2022]. The Indian Code of Criminal Procedure, 1973 contains two exceptions to the rule embodied in section 162 which contains a slightly framed rule under section 10 (6) of the Tanzania Criminal Procedure. The first exception is that the information made by an accused person in police custody that leads to a discovery of a fact is admissible whether it amounts to a confession or not. This is in essence the rule under section 31 of the Tanzania Evidence Act [Cap 6 RE 2022]. The second exception is that the statement recorded in police custody under section 162 may be admissible as a dying declaration if its maker dies. Section 10 (6) of the Tanzania Criminal Procedure Act does not contain similar exceptions but both portions of evidence are admissible under sections 31 and 34 (a) of the Evidence Act and there is no reason why these pieces of evidence cannot form part of the exceptions to section 10 (6). In the instant case, the statement was not made by the accused and so the first exception 15 does not apply. The statement is in connection to events preceding Maria Mathias' death though not immediately before her death. It is therefore admissible as a dying declaration. Section 34 (a) provides in part that a statement as to the cause of death is admissible "whether the person who made them was or was not, at the time when they were made under expectation of death." It may also be argued that the deceased statement related to different charges relating to assault and arson and so the statement could not be strictly brought within the confines of subsection (6). As stated in RV Kelkar's Criminal Procedure, 5th edn in the context of a corresponding 162 of the Indian Criminal Procedure Code [at page 150]: The bar created by Section 162 in respect of the use of any statement recorded by the police during the course of investigation is applicable only where such statement is sought to be used "at any inquiry or trial in respect of any offence under investigation at the time of when such statement was made." If any such statement is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of Section 162 would not be attracted. Section 162 is enacted for the benefit and protection of the accused. But such protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation.... 16 The question now is whether the deceased's statement in relation to the allegations of arson and assault are distinct from the present charge of murder. There is a room to argue that the deceased statement is different from the instant charge of murder and its admissibility and weight is not barred by the provisions of subsection (6). This is so as arson and assaults of 2 January 2024 are different from the charge of murder of 4 January. Yet one can argue that as the present charge of murder is directly linked with the identification of Augustino Fabiano with incidents preceding the deceased's death, there is direct link between the deceased's statement with the current charge of murder. Whether admissible as a dying declaration or as a statement relating to a separate charge or as evidence of prior identification, the deceased's statement needed corroboration in some material particulars. Central to the prosecution case was the fact that the accused was among the persons who beat the deceased a preceding night before she met her death and also burnt her house. The purpose of this statement is to enable this Court to draw an inference that as the accused was one of the persons who threatened to kill the deceased, assaulted her and burnt her house, the night before she met her death, he was among persons who most likely returned to attack the deceased on the night of 4 January 2024. These sets of facts raise suspicion about the accused person but suspicion alone is not a ground for conviction as was reaffirmed in Shaban Mpunzu 17 alais Elisha Mpunzu v R, Criminal Appeal 12 of 2002. In Mpunzu one day the deceased and his son were working in the accused's tobacco shamba. The next day the body of the deceased was found lying along a path, a short distance away from the village houses. From where the body of the deceased was lying, trail of blood was traced to some point about twenty paces from the accused's house. Upon searching the accused's house, a pair of rubber shoes was retrieved hidden under the bed stained with blood. Shaban Mpunzu was arrested along with two other persons and with whom they were jointly charged with murder of the deceased. The Government Chemist's report indicated that the blood found on the rubber shoes was human blood. On the basis of this circumstantial evidence, Shaban Mpunzu was convicted of murder while the other co-accused were acquitted. On appeal, the Court of Appeal concluded that in the absence of the evidence showing the deceased's blood group which could be related to the blood found on the rubber shoes recovered from the accused's house, Shaban Mpunzu could not be linked with the death of the deceased. The Court of Appeal quashed the murder conviction, albeit the strong suspicion against the accused: Admittedly, having regard to the fact there was the trail of blood 20 paces from the appellant's house, the rubber shoes retrieved from the appellant's house hidden under the bed stained with blood, there was strong suspicion against the appellant. From where the trail of blood ended, it does not follow conclusively that it ended at or emanated from the house of the appellant. However, it is a settled principle of criminal justice that in a criminal charge, 18 suspicion, however strong it may be, is not enough to ground a conviction. Such was, unfortunately the position in this case, the prosecution case still left room for doubts which have to be resolved in favour of the appellant. Are there facts in the deceased statement sufficiently linking Augustino Fabiano with assaulting the deceased and burning her house and eventual killing g of the deceased? As stated earlier, it is the argument of Mr. Ndonjekwa that there is no such link. Mr. Ndonjekwa argued that there is there is no sufficient explanation whether Augustino Fabiano, the present accused person, and Fabiano Agostino are one and the same person. His further contention is that the act of arson took place at night where there were electricity lights in the presence of several persons who were not summoned. He asked the court to draw adverse inference for the prosecution's failure to call them. I am of the opinion that if the accused was correctly identified in the deceased statement the fact of identification needs corroboration because except for the accused other persons mentioned in the deceased statement were arrested. It is unclear from that statement why the deceased easily identified Emmanuel s/o Isaya, Nicola s/o Pontini and Fabiano s/o Augustino. The statement refers to certain persons who were either present or disappeared when the deceased was first attacked and stones thrown towards her house. Those persons were Mzee Lagweni, Mama Yasinta and Mama Jacline. It was 19 important for these persons to testify to rebut the possibility of mistaken identity of the accused and his fellows. The statement makes reference to the police who went to the scene when the deceased was first attacked and the owner of the house in which the deceased was running the beer shop, one Deonis s/o Silivester. It is difficult to understand why the police and the owner of the house in which the deceased ran her beer shop were not called to testify given that there is no watertight evidence of arson being committed on the night of 2 January 2024. A second piece of evidence relied on by the prosecution is the accused cautioned statement of 8 January 2024. At the trial the accused unsuccessfully objected to the admissibility of the cautioned statement on the ground that it was recorded beyond the prescribed period. I admitted the cautioned statement as exhibit P. 3. Ms. Ally, learned State Attorney, highlighted that while there was no eye­ witness to the killing of the deceased, the accused's cautioned statement stands out as the most reliable evidence. She maintained that as the issue of voluntariness of the cautioned statement was belatedly raised at the defence stage, it is presumed to have been voluntarily made in light of the principle stated in Nyerere Nyague v R (Criminal Appeal Case 67 of 2010) [2012] TZCA. 20 While this is a valid principle of law governing the admissibility of confessional statements, it is distinguishable from the weight to be accorded to those statements. Admitting a cautioned statement is one thing and grounding a conviction on that statement is another. Admitting the cautioned statement is a question of admissibility of evidence and grounding a conviction is a question of weight. As stated by the Court of Appeal in Steven s/o Jason and Two Others v Rz Criminal Appeal 79 of 1999: ...it is common ground that the admissibility of evidence during the trial is one thing and the weight to be attached to it is a different matter. In the leading case of Tuwamoi v Uganda [1967] EA 84, the Court of Appeal for Eastern Africa distinguished the admissibility and weight of a confession and went on to reject a retracted and repudiated confession on account of inaccuracy. As to the distinction between admissibility and weight of a confession, the Court observed [at 91]: We would attempt to simplify the position. First the onus of proof in any criminal case is on the prosecution to establish the guilt of an accused person. A conviction can be founded on a confession of guilt by an accused person. The prosecution must first prove that this confession has been properly and legally made. The main essential for the validity of a confession is that it is voluntary...If the court is satisfied that the statement is properly admissible and so admits it, then when the court is arriving at its judgment it will consider all the evidence before it and all the circumstances of the case, and 21 in doing so will consider the weight to be placed on any confession that has been admitted. In assessing a confession the main consideration at this stage will be, is it true? And if the confession is the only evidence against an accused then the court must decide whether the accused has correctly related what happened and whether the statement establishes his guilt with that degree of certainty required in a criminal case. This applies to all confessions whether they have been retracted or repudiated or admitted, but when an accused person denies or retracts his statements at the trial then this is a part of the circumstances of the case which the court must consider in deciding whether the confession is true.... Whenever a confession is ruled to be voluntary, the trial court is bound to consider its accuracy whether or not it has been admitted, or retracted or repudiated. After a cautioned statement is declared to be voluntary and admitted, the next question is to determine the truthfulness of its contents. This distinction has been restated by the Court of Appeal in different cases. In Hatibu Tengu v Rz Criminal Appeal 62 of 1992, Court of Appeal of Tanzania at Dar es Salaam (1992) (unreported) it was observed: ... Thus the first test namely whether the confession by the appellant was made properly and legally, seems to have been satisfied. The next test comes when assessing or evaluating the confession itself, namely whether it is true. In arriving at this decision the court is required to consider all the circumstances in the case including the question whether there is some corroboration. If the confession is corroborated in some material particular by 22 some other independent evidence, the court can easily arrive at the conclusion that the confession is true. In the absence of such corroboration, the law does not prohibit the court from acting and founding a conviction on such confession if it is otherwise satisfied on the truthfulness of the confession .... This position is evident in Selemani s/o Mpoma v R, Criminal Appeal 180/2014 and in Umalo Mussa v R, Criminal Appeal 150/2005 to mention but a few other cases. During the defence the accused repudiated the cautioned statement and alleged torture by two police officers who beat him and broke the fingers of his left leg and left hand. The accused showed the court how his fingers were broken but I was not unable to conclude that his fingers were broken. Besides, the accused claimed that he was forced to sign papers that had been handwritten. There is a line of authorities from the Court of Appeal that while the accused should ideally raise his objection to admissibility of a confession when it is about to be tendered, a trial court should not off-handedly reject the accused objection raised at the defence stage. This is evident from the case of Morris Agunda and two others v R [2003] TLR 449 and Steven s/o Jason and Two Others v Rz Criminal Appeal 79 of 1999. In the latter case, the appellants retracted cautioned statements after the closure of the prosecution case on the 23 grounds that they were made under torture, their counsel did not object to the statements being tendered in court as evidence. As a result, the trial judge held that the voluntariness of the statements was not in question because of the failure of the defence to object to the admission of the statements and held that the cautioned statements were voluntary and true. The Court of Appeal took the view that, although the admissibility of the cautioned statement could not be challenged at after the closure of the prosecution case, it was incumbent upon the trial judge to consider the weight to be attached to those statements and, if need be, disregard the cautioned statements: ... [I]t appears to us that the learned judge took the view that once the defence had not objected to the admission of the caution statement (Exh P 4), no further complaint of dissatisfaction against the statement should be entertained. With respect, we cannot agree with this view. In our opinion, what the defence was seeking to establish at the stage reached at the trial was that in the light of the evidence that torture had been involved, the caution statement should not be relied upon in convicting the first appellant. In the light of the fact that the first appellant had sustained injuries which he alleged were caused by the police, there was sufficient basis for the judge to attach little weight at all to the caution statement (Exh P 4). The fact that the admission of the statement was not objected to by the defence does not in 24 our view, preclude the trial court from addressing its mind on the evidence (Exh P 4) closely when analysing it. All these authorities point to the requirement of weighing a confessional statement that has been admitted, whether or not, it was admitted without objection. Towards the end of the cautioned statement, the accused in the instant case seems to confess participating in the killing of the deceased. Does the cautioned statement contain a true confession of guilty? There are different tests in determining the genuineness of a confession that has been duly admitted at the trial. The first test is the "peculiarity in the facts within the knowledge of the accused" as was reaffirmed in the Zimbabwean case of R v Sambo 1964 RLR 565 at 571: If the accused mentions facts in his confession the knowledge of which he could only have come by being connected with the crime, the mention of such facts will, of course, be most cogent evidence to show that the confession is genuine. But even if the accused may have been questioned by the police on these very facts, their mention still has considerable probative value. If an accused freely makes a long statement and all the known facts fit in their proper sequence into this statement, this may often be sufficient reason on which to base a conclusion that the confession is genuine, even if the police may previously have questioned the accused on these facts. Because unless the police put the actual words of the statement into the accused's mouth, if 25 his only knowledge of the true facts has come from police questioning, he is hardly likely to present a coherent and convincing story into which all the known facts dovetail perfectly. A confession of such a type will often, therefore, itself prove its genuineness. This test has been variously applied in Tanzania. In Emmanuel Lohay and Another v R (Criminal Appeal No. 278 of 2010) [2013] TZCA 292, the Court of Appeal ruled as true the contents of the accused cautioned and extrajudicial statements on the basis of the peculiarity of facts they contained: This brings us to the cautioned and extra-judicial statements. The statements have one common feature. All of them describe the circumstances and the manner in which the deceased met his death. They are so detailed that the events described therein could have only been given by people who had the knowledge of how the deceased met his death. The statements also show the role played by each one of them. In Mkika v R (Criminal Appeal 47 of 2001) [2003] TZCA 2, the Court of Appeal dismissed the accused complaint that the circumstantial evidence was insufficient to connect the accused with robbery. Having ruled that the cautioned statement was voluntarily made and corroborated in ways that heavily incriminated the accused, the Court of Appeal observed in part that: ....The statement gives such a detailed account of the incident to the robbery that it is unlikely that it could be given by a person not involved in the crime... 26 One exception to the test of peculiarity of facts is that of irrelevancy. This exception was alluded to in the leading case of Janta Joseph Komba and Two Others v R, Criminal Appeal 95 of 2006 where the appellants were charged with and convicted of murder mainly because of their confessional statements. On appeal to the Court of Appeal, it was a misdirection to rule that a confession that is so detailed was 'voluntarily made" because the details do not relate to the offence facing the accused persons. In a judgment delivered by Kileo JA, the Court of Appeal observed that: It is common knowledge that in order for a confession to be found voluntary on the basis of having contained detailed information, such detailed information must be in relation to the particular crime itself and not to the history of the accused person. In the instant case it is our view that details relating to how the motor vehicle registration no TZA 2442 was acquired is not directly connected to the commission of the crime in issue. This exception was again applied in Hamimu Hamisi Totoro Zungu Pablo and Two Others v R, Criminal Appeal 170 of 2004. The appellants were convicted of armed robbery by the District Court of Newala. Their cautioned statement were admitted at the preliminary hearing as part of matters not in dispute even though the procedure for conducting preliminary hearing was not adhered to. On appeal to the High Court, it was held that the cautioned statements were repudiated but were voluntarily made because they were so detailed. The High Court used the cautioned statements to corroborate the 27 unreliable identification evidence and upheld the conviction. On a further appeal to the Court of Appeal it was stated that a detailed confession must relate to the offence with which an accused is being charged and no other offences which the accused might have been involved in. There is nothing in the instant cautioned statement to suggest that it contains facts that are peculiarly within the accused knowledge. Beside the sentence mentioning his names, his family, primary education, marriage, the major part of the cautioned statement contains incriminating facts that were known to different persons including the police. For this reason, the first test has no relevance in the instant case in determining the truthfulness of the accused cautioned statement. The second test is that of existence of "evidence outside the confession" affecting its truthfulness. The operation of this tests was summed by the English Court of Appeal in R v Sykes (1913) 8 Cr App R 233 at pp 236-237: ... And the first question you ask when you are examining a confession of a man is, is there anything outside it to show that it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing the [offence]? Is it consistent with other facts which have been ascertained and which have been ... proved before us? 28 This test was endorsed by the Court of Appeal of Tanzania in Joseph Stephen Kimaro and Another v R (Criminal Appeal No. 340 of 2015) [2015] TZCA 316 in the following terms: The Court have referred to those questions observed that: There are many ways through which courts assure themselves of probity or the weight to be attached to confessional statements, be it cautioned recorded by a police officer or extra-judicial recorded by a Justice of the Peace. For example, the Supreme Court of Nigeria in Ikechukwu Okoh v. The State (2014) LPELR-22589 (SC) while underscoring the need for a confessional statement to be voluntary, it also placed reliance in a case from UK, R. v. Sykes (1913) 1 Cr. App. Report 233, which highlights some basic questions which courts are advised to ask themselves while determining the probity and the weight to be attached to the confessional statements: The existence of evidence outside the confession which shows it to be untrue has been pronounced upon in different cases. The accused in Tuwamoi's case recorded two statements in police custody in two successive days through two different interpreters who were police officers. The first statement amounted to a confession while the second one was a complete denial of the offence. The Court found disquieting features in the accused statements and doubted the accuracy of the first statement [at 91-92]. The Court doubted the nature of the interpretation provided and the credibility of the interpreter and the fact that the 29 prosecution chose not to tender the second statement in which the accused denied committing the offence. In Ally Chande alias Ally and Another v R, Criminal Appeal 16 of 2006, the High Court convicted the appellants of murder. The cautioned statement of the first appellant was admitted after a trial within a trial on the principle that: it was so detailed that it could only be made by a person who had participated in the commission of the offence. The Court of Appeal overruled this finding for the following reasons. First, the cautioned statement was inconsistent with the testimony of three prosecution witnesses in material particulars. Secondly, there was evidence of torture which was corroborated by the Justice of the Peace. Thirdly, there was prolonged delay in police custody in recording the cautioned statement. Fourthly, the same day in which the first appellant recorded the cautioned statement he was taken before the Justice of the Peace and denied participation in the commission of the offence. The Court of Appeal held that the High Court erred in relying on uncorroborated confession which was retracted to convict the appellants on the basis that it was nothing but true. The second test applies more strongly where there is no evidence that the offence itself has been committed in which case the court must, in addition, go 30 outside the confession to satisfy itself that the commission of the offence is confirmed by other evidence. These tests are disjunctive and their application depends entirely on the circumstances of a given case. In answering the question whether in the instant case, the accused made a true confession, I will now examine the cautioned statement and weigh its contents in order to establish whether it is consistent with the deceased's statement. The accused's cautioned statement consists of five sets of facts. The first set of facts are brief statements about the accused and his family. The second set of facts is about accused knowledge of the deceased, Maria Mathias. The third set of facts is about the killing of the deceased. The fourth set of facts relate to his arrest at a "pombe" club at Farabu Kitongoji in Kiru Erri Village and recording the cautioned statement at Babati Police Station. The fifth and last part consists of facts in which the accused purportedly confessed killing the deceased. At this stage it is important to evaluate more closely the third set of facts. The accused narrated that the plot to kill the deceased was hatched on 2 January 2024 around "22.00hrs" at the grocery of Maria d/o William alias Mama Beate. On that day there was a meeting involving Emmanuel s/o Issaya, Sifael s/o Gidasham, Nikola s/o Pontini, Mary d/o William. The meeting was organized 31 by Maria s/o William who had been angered by the deceased who was a stranger in the Village but was not only an obstacle to her business but was also going out with other women husbands. Mary d/o William instructed them and other three persons to destroy all the deceased's articles and if possible, kill her. Mary d/o Wiliam gave them a local brew known as "Jogoo" and beer. Subsequent to that meeting seven of them including the accused, Jacobo s/o Bura, Emmanuel s/o Issaya, Sifael s/o Gidasham, Nikola s/o Pontini went to the deceased's house, threw stones toward her house, broke window glasses, doors and followed her. They told her unless she immediately vacated from the beer shop, they would destroy everything. There was a man inside the house whom they suspected to be her paramour. It is strange that the accused mentioned that the person found in the deceased's house was not a resident of Kiru Erri Village. The accused in cross- examination stated according to the last census there were 300 villagers and it is difficult to know why the accused easily concluded that the man in the deceased house was a stranger. After mentioning the presence of a stranger in the deceased's house, the accused went to state in Kiswahili that: ...na wakati huo pale ndani kulikuwa na kijana ambae siyo mkazi wa Kijiji cha Kiru Heri bila shaka tulihisi alikuwa ni hawara yake hivyo hayo yote aliyasikia na kutuona tukiwa na MAMA BEATE Mwenyewe na tulipoona hajishughulishi 32 kuondoka ndipo JACOBO s/o BURA alienda kuleta Petrol na kwa kuwa Mimi ninavuta sigara Nilichukua kiberiti na kumwaga Kwenye Makochi yake (Chumbani) Magodoro yote chumbani na Mwisho nikawasha moto na tukaondoka wote na muda Mfupi kama saa 00:57 HRS na 01.30HRS ndipo JACOBO s/o BURA alinitumia Sms kuwa ameona gari la Maaskari kutoka babati limekuja kumfuata MARIA D/O MATHIAS JOHN na kuondoka naye na hiyo tayari ilikuwa ni tarehe 04/01/2024 na siku hiyo ya Mchana wote na tarehe 04/01/2024 MARIA MATHIAS JOHN hakuonekana pale Kijiweni, tulihisi bado yuko polisi Kiru/au Babati kwaajiri ya kutulalamikia Maana wote tulioMfanyia Fujo Usiku ule alituona na alitujua, Lakini na sisi Baada ya kujua kuwa lazima tutakamatwa Kama ameenda polisi ndipo tulijipanga kumwinda Mda wote wa Usiku hatukulala hadi tumpate na tuhakikishe tunamuua Moja kwa Moja... The accused person went on to state that: na Usiku wa tarehe 04/01/2024 kuamkia tarehe 05/01/2024 Majira ya saa 01:00 HRS ndipo tukiwa kwa MARIA D/O WILLIAM @MAMA BEATE alitokea pikipiki Moja kutoka Barabara ya Kwenda Kiru na kufika pale Kijiweni Jirani ya ile ile nyumba aliyokuwa akiishi MARIA D/O MATHIAS JOHN akishushwa na ile pikipiki ndipo tukatokea ndani ya ile nyumba kimya kimya tukiambizana tumtupie Mawe yule Dereva bodaboda aondoke kwanza na ndipo tumkamate yule MAMA tumchinje na tulifanya hivyo kwa haraka na yule Bodaboda alipoona Mawe yanatupwa kwake Mengi alitoroka haraka sana na yule Mama alipojaribu kukimbia Mmoja wetu simkumbuki ni nani alimpiga ngwara kwa nyuma na alipodondoka chini kila mmoja wetu alitoa panga na kuanza 33 kumshambulia MARIA D/0 MAHTHIAS JOHN kwa alipoona inafaa kumua kwa haraka na alipiga kelele kwa Mda Mrefu akiomba Msaada kwa kila Lakini tulimthibiti hali ya yeye kukosa Msaada kwa kila aliyetaka kutoka nje aje aone tukio lile au kumsaidia nyumba yake tuliitupia Mawe Mengi sana kwa Mfululizo hadi ilipoonekaa kama sasa hawezi kusimama wala kutoa sauti ndipo sisi kila Mmoja wetu alitawanyika alikojua According to the cautioned statement the police came to the scene after the beer shop had been set on fire and the arsonists disappeared. In the deceased statement, the deceased stated that police came to the scene when the men were still attacking her house. On seeing the police, the men disappeared. The police recorded a statement from the deceased and left. After the police had left, those men returned and went on attacking her house. It was at this stage that they beat her, ordered her to disappear otherwise they would kill her. It was at this time that they set the house on fire after ordering her customer, one Mnama to vacate immediately from the shop The deceased account differs in some material particulars with what is recorded in the cautioned statement. She stated that she reported to the police the second attack when her house was set on fire. In the cautioned statement it is stated that the assailants of the deceased attacked by stones anyone who tried to come out to assist the deceased. This suggests that the attack took place in a business or residential area. 34 The cautioned statement narrates that each of the seven assailants attacked the deceased by machetes but the postmortem report established only one large injury at the back of her body from the head to the neck. Unless some explanation is provided, it is implausible that gang using machetes would cause only one large injury on the deceased's head. No explanation was forthcoming from the prosecution case. These portions of the deceased and the accused statements point to the following issues. One, there is no convincing evidence that the deceased recorded a statement at Kiru Police Post on 3 January 2024. Two, there is no evidence of beating the deceased and burning of the building occupied by the deceased. There is no evidence that police went to the scene immediately after the deceased's report. The police did not show a sense of urgency to the deceased's complaint. There is no account in this court of police going to the scene of crime after the complaint and why they failed to go. Three, the cautioned statement contains portions of evidence which are false. A confession that contains false accounts, according to Richard Lubilo and Another v R [2003] TLR 143 at 154, has to be to disregarded: ....A confession may be true, that is, a correct account of what took place, but it may be false in the aspect of self-incrimination by the accused. Where there is likelihood of an untrue admission of guilt being made, the confession has to be excluded even if it is true in all other respects... 35 In the early leading case of Ali Salehe Msutu v R [1980] TLR 1 the Court of Appeal demanded corroboration because part of the first accused extra-judicial statement was false and since there was none, it quashed the conviction. In the instant case, parts of the cautioned statement are doubtful and no corroborative evidence is forthcoming. It is apparent that there are various persons who could have corroborated the accused cautioned statement. If the police really went to the scene on the day that the deceased was assaulted and her house burnt down, it begs the question why nobody was either arrested or testified on allegations of assault and arson despite several persons who were either familiar with what took place on the day of alleged assault and arson. Similarly, the killing of the deceased took place at Kijiweni area where there were electric bulb lights and it appeared from the cautioned statement that some persons who attempted to rescue the deceased from beatings were threatened by stones and stayed indoors. This is a borderline case where the prosecution chose not to call key witnesses to provide watertight evidence of identification of the accused and of allegations of arson and assault. There is no reason why persons who apparently witnessed the killing were not called to testify. It was held by the Court of Appeal for Eastern Africa in Urbarle v R (1938) 5 EACA 58 at 59 that a court may presume that "evidence which could be and is not produced would if, produced, be unfavourable to the person who withholds it". Due to the prosecution's failure 36 to clarify key issues in the case, the case remains to be a borderline one. In a borderline case, as echoed in Abdallah Jeje v R, Criminal Appeal 195 of 2007, a trial court must adopt a view that is favourable to the accused person. For these reasons, I hold that the prosecution failed to prove its case against the accused person beyond reasonable doubt. I accordingly find the accused not guilty of murder and duly acquit him. It is ordered that the accused be released from custody forthwith unless he is otherwise lawfully detained. DATED at BABATI this 7th day of October 2024 F.M^MIRINDO --- /7--------------- v\ JUDGE 11 fl ’ COURT: Judgment delivered in open court this 24th day of October 2024 in the presence of the accused, his defence counsel, Mr. Kuwengwa Ndonjekwa, and in the presence of Ms. Anifa Ally, State Attorney, for the Republic. B/C. Ms. Ombeni Kazyoba and Ms. Anna Mathayo present. Right of appeal explained. F.M. MIRINDO JUDGE