20030814 TZCA Dar es Salaam

C; IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MROSO, J.A., MUNUO, ).A.,And NSEKELA, J.A.) CRIMINAL APPEAL NO. 21 OF 2000 ERNESTs/0CHACHA@HENCHE ] MASANJA TOBE @ MWANASATO ] MASANJA MASUNGA ] ..............APPELLANTS AMOS CHARLES ] S. GODFREY MALATO ] 6 HALAWALUPEMBE ] AND THE REPUBLIC ............................................... RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Chipeta, 3.) dated the 1st day of Ju,ne 2000 In Criminal Sessions Case No. 7 of 1991 JUDGMENT MROSO, J.A.: The six appellants, namely Ernest s/o Chacha © Henche, Masanja Tobe © Mwanasato, Masanja Masunga, Amos Charles, Godfrey Malato and Halawa Lupembe, were on the 1 June, 2000 found guilty of the murder of one Isaka Mwita Marwa on 14th November, 1988 at Nyarugusu Village in Geita District. The six were among 17 'suspects who were charged in court for the murder. About 200 to 300 men in all who had been rounded up by the 2 Sungusungu and Villagers in connection with the murder. The six were aggrieved by the conviction and the sentence of death which the trial High Court imposed on them and have appealed to this Court. At the hearing of the appeal Mr. Butambala, learned advocate, appeared for the first, second, fourth, fifth and sixth appellants and Mr. Kahangwa, learned advocate, appeared for the third appellant. The respondent Republic was advocated for by Mr. Mlipano, learned State Attorney. The memorandum of appeal by Mr. Butambala raises two grounds of appeal but when called upon to argue them he abandoned the first ground and argued the second ground only. This second ground reads as follows: "2. That taking into consideration of (sic) all the prosecution evidence adduced against the Appellants the case was not proved beyond reasonable doubt." Mr. Kahangwa on the other hand filed four grounds of appeal but at the hearing of the appeal he argued three grounds only and (. 1 9 abandoned the fourth ground. In the first ground of appeal it is complained that the, trial judge was superficial when he found that the third appellant's confession was "inferentially corroborated by the 'evidence of PW3". In the second ground of appeal it. is said that the trial judge misdirected himself in drawing an adverse inference regarding the third appellant's confession when he said "there were some accused persons in this case who made cautioned statements but made no confession." In the third ground of appeal the complaint is that the third appellant was sent to the Justice of the Peace not at his request, but in order to cover up the involuntariness of the alleged confession which had been obtained through torture. Before we discuss the grounds.. of appeal we think it is helpful to give a synopsis of the evidence which led to the conviction of the appellants. In the late evening of 14th' November, 1988, at about 8 pm, in Nyarugusu Village, Geita District one Isaka s/o Mwita Marwa was shot at and killed at the home of Musira Chacha, PW1 in the case. Immediately after the shooting Musira Chacha's house was ransacked. A wife's wristwatch and cash shillings 680,000/= were 4 allegedly stolen. Musira Chacha's third wife, Joyce (PW6), was in the house and she claimed to have identified some of the bandits. At the time of the killing and the robbery Musira Chacha was at Nyarugusu Police Station where he had gone a little earlier to report about a tip he had received from one Lucas (Malisha) PW5, that there was to be a robbery at his house during the night. Musira Chacha claimed in his evidence at the trial that he had picked in his house a photograph of one of the bandits and that he handed it to the police. This alleged photograph was not tendered in evidence, if in fact it existed, and no explanation was Offered for its non-production in evidence. Following the killing, according to PW2 - Kitera Maganyera, about 300 people in Torogo Village near Nyarugusu were rounded Up in a kind of operation. That exercise apparently was carried out by members of the traditional militia popularly known as Sungusungu. The rounded up crowd were held at a field until the police arrived. Detective Station Sergeant Musa - PW3, was one of the police officers who went to the field and he re-arrested three suspects who included the first appellant, Ernest Chacha @ Henche. He took them to Geita Police Station. That was on 15th November, 1988, just a day after the killing. Other suspects were arrested subsequently on 5 different dates. For example, the third appellant Masanja Masunga was arrested on 101h December, 1988 whereas the fourth appellant Amos Charles as well as Godfrey Malato, the fifth appellant, and Halawa Lupembe, the sixth appellant were all arrested in April 1989. The fourth and fifth appellants were arrested at Nyarugusu while the sixth appellant was arrested at Magu. Detective Station Sergeant Musa recorded a caution statement of the first appellant on 15th November, 1988 and recorded that of the third appellant on 12th December, 1988, two days after he was arrested at Sengerema. On 10th April, 1989 he recorded a caution statement of the fourth appellant Amos Charles and on 21s t April, 1989 he recorded a caution statement of the sixth appellant Halawa Lupembe. The caution statements of the second appellant Masanja Tobe © Mwanasato was recorded by Detective Sergeant Abubakar, PW4. At the trial the voluntariness of the caution statements which were taken by PW3 and PW4 was disputed and the trial court had to hold a trial within a trial. The appellants alleged that they were tortured and were forced to sign or thumbprint statements they had 1 6 not made. The trial court, Chipeta, J., ruled that the appeUants had made statements to the police which were written, read over to them and they signed or thumb printed their respecl:ive statements which were voluntary and admissible as evidence. Apart from caution statements alleged to have been taken by the police, on 23/11/88 an identification parade was mounted at Geita Police Station at which four suspects who included the first appellant and eight non-suspects were paraded. PW5 - Malisha Lucas and PW6 - Joyce, the wife of Musira Chacha, identified the first appellant. A second parade was mounted but none of the other appellants were involved. Of the six appellants only the third appellant appears to have been taken to a Justice of the Peace where he made a statement denying taking part in the killing and the robbery at the home of Musira Chacha (PW1). The ground of appeal which Was urged by Mr. Butambala is omnibus in that it does not articulate any specific errors which the trial judge may have made. In his submissions however he dealt with the caution statements, the alleged tortures of the suspects by I 7 the police and the Sungusungu, hence the question of voluntariness of the statements and, since they were retracted or repudiated, whether there was adequate corroboration. In particular he said that there was no corroboration of the statements alleged to' have been made by the second, fourth, fifth and sixth appellants. Mr. Kahangwa for the third appellant stressed on the need for a finding if the alleged confession by the third appellant in the caution statement imputed to him was made voluntarily. He argued that the trial judge did not consider that question in his judgment but had only considered whether the third appellant made the confession and, then, whether it was true. He submitted that that was a wrong approach, and that had the trial judge considered and decided on the question Of voluntariness first he would have found that the alleged confession was not voluntary. If the court were to find that the alleged confession was not voluntary that would mean that it was not admissible evidence and that would be the end of that statement. The question of its truthfulness or otherwise would then be irrelevant. He cited the decision of this Court - Richard Lubilo and Amon v. Rerublic, Criminal Appeal No. 10 of 1995 (unreported) in support of that submission. a This is a first appeal and this Court is entitled to look at the evidence afresh and draw our own conclusions. We think the first question to consider is whether the caution statements were made at all. We ask this question because the appellants claimed they did not mak&thcse statements. As already mentioned earlier in this judgment the trial judge found as a fact that all the appellants did make the statements. He said - "Quite clearly, these cautioned statements were made by the accused persons, and so the accused persons' denials are no more than afterthoughts." Was the trial judge wrong in reaching that conclusion? The learned advocates for the appellants did not really dispute that the appellants made the caution statements. The farthest Mr. Kahangwa could go on this point was that Detective Station Sergeant Musa had taken statements of other suspects before he took a I 9 statement of the third appellant and could therefore craft out the statement which is imputed to the third appellant. We have gone through each of the statements which are imputed to the respective appellants and we are satisfied that they were made by those respective appellants. We have been able to detect aspects in each of the statements which are peculiar to the respective appellants. For example, in the statement attributed to the first appellant Ernest Chacha © Henche Chacha, he said that during daytime on 14/11/88 while in the company of the second appellant he met Lucas (Malisha PW5) and that Lucas showed them the home of Masira Chacha (PW1). Lucas (PW5) in his evidence confirmed those facts. The second appellant who was said to have been with the first appellant during the robbery did not know the owner of the home which was robbed. He did not speak of ever meeting Lucas. According to the statement which is imputed to the second appellant, he was with three others when he left his home, those being the first appellant, one Maduru and Daniel. These four joined a group of six people near the scene of crime. He did not know those six people. I 10 But according to the first appellant he left the home of the second appellant to go to the home where the robbery was committed and was in the company of the second appellant, and also one Kulwa sb Tugwa and Martin s/o Mbonje. Daniel and Maduru were found near Musira Chacha's home and that Daniel was the person who had and used the gun that killed the deceased. It seems to us even from the statements of those two appellants only that if Station Sergeant Musa (PW2) who recorded the statements of those two appellants had intended to concoct the statements which are attributed to those appellants in order that they could be convicted for the offence of murder with which they were charged he would have made those statements as similar as possible, considering that they were explaining the same series of events, and avoid any material contradictions which might weaken their perceived cogency. In his judgment the trial judge having found, as we have found, that the appellants made the statements which are attributed to them, proceeded to find that those statements were confessions which could not but be true. Relying on those confessions he found 11 all the appellants guilty of murder as charged. But he had omitted an important intermediate stage. It is curious that although in the ruling after a trial within a trial the judge made a finding that the caution statements were voluntarily made he did not mention the importance of the voluntariness of the statements in his summing up to the assessors and he did not discuss it in the judgment. His focus was on whether the confessions were true. We think that the judge should have considered the circumstances in which each of the appellants made their caution statements and make a specific finding if each of those statements was voluntary. We intend to undertake that task. But before we do so we wish to make a brief review of the law on the admissibility of confessions made to a police officer as evidence. The statutory position is found in section 27 of the Evidence Act, 1967. It says as - 27 - (1) A confession voluntarily made to a police officer by a person accused of an offence may be proved as against that person. 12 The onus of proving that any confession made by an accused person was voluntarily made by him shall be on the prosecution. A confession shall be held to be involuntary if the court believes that it was induced by any threat or promise or other prejudice held out by the police officer to whom it was made or by any member of the Police force or by any other person in authority. It is pertinent, therefore, that after it has been ascertained that an accused person made a confession to a police officer such confession can be evidence at the trial of the accused person only if it was made voluntarily. The point that voluntariness of a confession is necessary for its validity has been stressed in the often cited case of Tuwamoi v Uganda [1967] EA 84 in which the East African Court of Appeal said - 13 The main essential for the validity of a confession is that it is voluntary, Lord Gaddard, CJ in the case of Karma Son of Kamin v Regina [1955] All ER 236 236 said with regard to a confession - it should be stated that the rule with regard to the admission of a confession, whether it be regarded as an exception to the general rule or not is a rule of law which their Lordships are not qualifying in any degree whatsoever. The rule is that a confession can only be admitted if it is voluntary and therefore, one obtained by threats or promises held out by a person in authorityis not admitted. We will now consider the caution statements of each of the appellants to see if they were voluntarily given to justify their reception as evidence at the trial. The first appellant, Ernest Chacha © Henche Chacha, said he was arrested on the morning of 15/11/88 during a roundup which was done by Sungusungu and the Nyarugusu Police. About 300 men in all were rounded up. He said he was one of nine people whotere 14 beaten up by the Sungusungu until they lost consciousness. A police commander ordered the Sungusungu to stop the assault. Later in the day they were taken from Nyarugusu to Geita. On the morning of 16th November, 1988 the police beat him up and interrogated him. Although he said he did not make any statement to the police, in the same breath he said the police did not read over to him his statement. As a result of the beating he was in •a bad condition and although he and seven others wanted to be taken to hospital the police refused to do so. The only exception was the second appellant, Masanja Tobe, whose condition was worse than that of the rest. He was the only one who was taken to hospital. Detective Station Sergeant Musa who took the caution statement from the first appellant admitted that the first appellant was one of the suspects who had been assaulted by Sungusungu on the buttocks and arms. He claimed he did not take the first appellant and the other suspects to hospital because they suffered only minor injuries. He also claimed that the first appellant made his statement voluntarily without any threats or the use of force. It took the 15 policeman one hour to record the statements. According to Detective Station Sergeant Musa police do not assault suspects who are in lock- No One, of course, would wish to believe that the police do not assault suspects during investigations to make them co-operate. But one must say that to believe Sergeant Musa in his bold statement that the police do not assault suspects would obviously be naive. In the case of the first appellant we believe the statement he made to Sergeant Musa had been induced by violence which had been meted on him by the Sungusungu and the police. The statement was given in a matter of hours only after the first appellant was taken away from the Sungusungu who had been assaulting him and eight others quite heavily. It willbe unsafe to rely..ona statement whichwas taken in those circumstances. We therefore do not consider such a statement as having been given voluntarily. The second appellant made his statement to Corporal Abubakar, as he then was, on 16/11/1988 at Nyarugusu. This appellant, like the first appellant, had been rounded up by the Sungusungu on the morning of 15/11/1988. He claimed the 16 Sungusungu had wanted him to say who had killed the deceased in this case . When he said he did not know he was beaten up from 8.00 am to 2.00 pm when the police from Geita stopped the Sungusungu from further beating him. He was then taken to Geita Police Station where he spent the night in a police lock-up. On 16/11/1988 he was taken back to Nyarugusu and by evening he was in very bad condition because of the beating he got from the Sungusungu and the police. He said his buttocks were torn and the police had to take him to hospital where he was admitted for about three weeks (in fact two weeks). This appellant, like the first appellant, denied making any statement to the police. Detective Corporal Abubakar (at the time of giving evidence he was Sergeant) said at the time he re-arrested the second appellant who was already in the custody of the Sungusungu he observed that he had marks on his arms which indicated he had been assaulted. He took a caution statement from the appellant and that the appellant made it voluntarily. The witness said he could not remember if the appellant was taken to and admitted in hospital. He said the appellant was in good condition. 17 Sergeant Abubakar was not speaking truthfully. There was evidence not only from the second appellant but also from the first appellant that of all the suspects the second appellant was in a much worse condition because of the prolonged assault he received from the Sungusungu and later from the police. He had to be admitted at Geita hospital. Indeed, during the trial within-a-trial a medical report from the District Medical Officer, DM0, was tendered in evidence as Exh. Dl. The contents of the report are not mentioned in the court record and the report itself - Exh. Dl - is not included in the record of appeal. However, we can glean from the ruling by the trial judge after the trial-within-a-trial that the report in Exh. Dl was to the effect that the second appellant was admitted in Geita Government Hospital on 16/11/88 "with a diagnosis of septic serotum" and was discharged on 1/12/88. It is noted that the second appellant was admitted in hospital on the very day Sergeant Abubakar took the caution statement from him. The appellant therefore could neither have been in good condition nor in a state to make a voluntary statement as claimed by the detective sergeant. The third appellant, Masanja Masunga, was arrested on 10th December, 1988 at 8 pm in Sengerema and taken to a police lock-up. During that same night the police station was attacked by unknown people. It was believed by the police that those people were trying to rescue the third appellant. In the, statement which Station Sergeant Musa took from the third appellant there is a detailed story on how the appellant got himself involved in the murder on 14/11/1988, the other people who were involved who included appellants Masanja Mwanasato s/o Tobe (2 nd appellant) and Halawa s/o Lupembe (6th appellant). In the same statement the third appellant is recorded as giving accounts of other acts of banditry in which he had been involved in the past and the amount of the loots obtained from those criminal acts. Appellant Masanja Masunga had a different story to give in his evidence in court. He said that on the night of his arrest, after the attack on the police station by unknown people, he was tortured very much. The police stripped him of his clothes, poured water on him and kept him in solitary confinement for the night. The following day as the police interrogated him they used a bicycle chain to assault 19 him. He was denied food and he claimed he did not make any statement to the police although he thumbprinted certain documents the contents of which he did not know. Subsequently he was taken to a justice of the peace where he made a statement denying any involvement in the murder. We have given full consideration to the caution statement which was made by the third appellant and we are satisfied that in the circumstances the third appellant did not give a voluntary statement as claimed by Station Sergeant Musa. The statement which was given by the third appellant which amounted to a confession was induced by torture. The fourth appellant Amos Charles was arrested over five months after the murder of which he was convicted. After he was arrested on 8/4/1989 at Nyarugusu he was taken to Geita and a caution statement was taken from him on the 10th April, 1989. Sergeant Musa said the fourth appellant was in good health and had no injuries at all. He said - "In fact all suspects were in good health except the first accused who had been assaulted by Sungusungu". Ai1 The fourth appellant made a voluntary statement, according to Sergeant Musa. The fourth appellant on the other hand said at the trial-within- a-trial he was, assaulted by the police but did not make any statement nor did he sign or thumbprint on any document. The statement which was attributed to him and which was tendered in evidence at the trial was not made, signed or thumbprinted by him, according to the. fourth appellant. As we mentioned earlier in this judgment, we believe the appellant made a caution statement to Station Sergeant Musa and we do not accept his denial that he never made any statement. The question has been whether that statement was made voluntarily. The fourth appellant, in his caution statement, implicated himself by confessing that he was one of the bandits who participated in the murder and robbery on 14/11/1988. , He received Shs. 1,000/= as his share in the loot. There is also mention in the statement that the appellant had participated in an earlier incident of banditry. 21 This appellant did not give any detailed account of torture. He said simply that he had been assaulted and that he "received normal pains". This might suggest that the statement which he gave to the police was not induced by the assault. But if he had in fact voluntarily confessed the crime in which he allegedly parUcipated there is no reason why he should retract it at the trial-within-a-trial. We believe the appellant was assaulted by the police after he - was arrested and we cannot say with assurance that his confession was voluntary. The fifth appellant Godfrey Malato was also arrested on 8th April, 1989 at Nyarugusu. According to Sergeant Abubakar (PW4), he recorded a caution statement from this appellant on 10TH April, 1989, which was two days after the arrest. He said the appellant was in good health and he "could talk well and walk well". The appellant made his statement voluntarily. He claimed he did not torture the appellant and that in fact he had never tortured any suspect. At the trial-within-a-trial the fifth appellant said the police tortured him and required him to show them a gun. They told him 22 the gun had been used in a murder and that for his own safety he should show them the gun. The person who interrogated him had a pistol and he (appellant) was assaulted. Eventually they gave him a piece of paper to sign "so that they know my home". He signed and thumb printed the paper. Like in the case of the other appellants, we have no doubt the appellant made the statement which is attributed to him. His statement was relatively short. He said he participated in the adventure of 14/11/1988 in which a murder was committed. He further said that he was the one who had the gun which he had obtained from Samwel, the head of the Sungusungu. Prior to the incident of 14/11/1988 he was also involved in an act of banditry and he had used the same gun. Again, we have no doubt that this appellant was subjected to violence when he made the confession that he was the one who used the gun which killed the deceased in this case. A. statement of confession given in such circumstances cannot be said to be voluntary within the meaning of the law. 23 the sixth appellant, Halawa Lupembe was arrested in April, 1989 atMagu, which was some five months after the murder. On 21/4/1989 Station Sergeant Musa recorded a statement from the appellant. He said the appellant had no injuries, was in good health and made a voluntary statement. Appellant Halawa Lupembe said in the trial-within-a-trial that after he was arrested and was taken to Geita he was interrogated while the Sungusungu assaulted him. They asked him about a gun and when he told them he did not know anything about such gun he was assaulted. At one time he was blindfolded and was told that if he .did not confess, he would die. The police also tied his private parts with a rope. He did not make any statement to the police but they made him sign and thumbprint a pieceofpaper. As with the other appellants we believe the sixth appellant indeed made a statement to the police. In the statement he confessed that he was one in a group of bandits who participated in a murder and robbery adventure and that one Semangwana s/o Masanja was the one who fired the shot from a gun in his possession, killing the deceased. He was also one of those bandits 24 who entered the house from which Shs. 102,000/= was stolen. There were two women in the house when the bandits entered it. We believe the police extracted that statement from the appellant after they had employed violence against him. Station Sergeant Musa said that after the suspects (now appellants) had made the statements to the police they were taken to a justice of the peace. He was surprised that only the statement of appellant Masanja Masunga was "in the file". If Sergeant Musa was correct in saying so, it must be curious indeed why the statements which the appellants (apart from the third appellant's) may have made to a justice of the peace were missing. The Court is entitled to draw the inference, as we do, that such statements were at variance with the confession which the appellants made to the police and the prosecution thought such statements to the justice of the peace would weaken the prosecution case. We know that the sole statement to the justice of the peace (that of the third appellant) which was tendered in evidence at the trial did not have a confession. 25 We have found that the confessions by the appellants were either definitely obtained through torture or that it was doubiful if they were voluntarily made. We have said that under Section 27 of the Law of Evidence Act, 1967 a confession is admissible only if it is proved to have been made voluntarily. If it is not so proved, it cannot be admitted as evidence at the trial of the maker of the confession. The confessions by the appellants should not have been admitted as evidence at their trial. Since they were not admissible evidence the question that what was said in those confessions was or was not true does not arise. Also, the question whether or not corroboration was needed does not arise because there was nothing to corroborate. The learned trial judge therefore erred in his judgment in discussing the truthfulness of the confessions and the need for corroboration before he established that each of the confessions was voluntarily givenand was admissible evidence. He did not even put to the assessors the question of voluntariness of the statements which were made by the appellants. 26 The trial judge, like the prosecution, relied heavily on the supposed confessions as evidence explaining the truth about what had occurred on 14/11/1988 and in finding the appellants guilty of the murder of deceased Isaka s/o Mwita Marwa. That supposed evidence was not evidence and was not capable of being acted upon. The question now is whether there was evidence, apart from the discredited confessions, on which a court could found a conviction of all or any of the appellants for the offence which was charged. There was evidence of visual identification against the first appellant. Joyce (PW6) said that as she sat with the deceased outside her house she saw six people approach. It was then between 8.30 pm and 9 pm. A gun was fired and she ran into her bedroom in the house and hid herself behind a door. The bandits entered the bedroom, searched it and found Shs. 600,000/= which they stole. The bandits then spotted her and ordered her to close her eyes and beat her up. They also stole her wrist watch. She said that there was a pressure lamp in the sitting room which gave out enough light to enable her to see the bandits when they were in the bedroom. All but one of the six.bandits were strangers to her. The only one she knew before was one Chacha. In court she touched the 27 6 Ih appellant, Halawa Lupembe, saying he was the Chacha who she had known before that night During an identification parade which was mounted on 23/11/1988 by PW7 - ASP Elias, Joyce identified the first appellant Ernest Chacha and one Kalemera Tarasisi who was originally the third accused out of the 17 accused at the trial. The evidence of identification by Joyce (PW6) is of doubtful value. To begin with, the person who she said she was familiar with his appearance and who she said was called Chacha, and she identified in court by touching him, is not called Chacha but Halawa Lupembe. But in the second place, assuming she mixed up names, why would she point at the first appellant at the identification parade and in court touch the sixth appellant? Even more significant is the question whether on the day of the robbery Joyce was able to identify any of the bandits reliably When gun shots were fired and deceased was killed Joyce ran into her bedroom for safety to hide herself behind a door in order not to be seen when the bandits entered the bedroom. That means she could not see the bandits when they entered and ransacked the room. When the bandits discovered her behind the door they ordered her to cover her face, which she did. Obviously she was in a state of great fear. The lamp was in the sitting room so that the light which may have been in the bedroom could not have been very bright. In all those circumstances it can hardly be said that conditions for reliable identification by Joyce existed. We must discount her evidence of identification. PW5 - Malisha Lucas Dilaguti explained in his evidence that during the day on 14/11/88 he met the first appellant Ernest Chacha alias Henche three times. It was confirmed by PW2 - Kitera Magangera, that indeed Lucas met and talked with the first appellant. Lucas said the first appellant at first wanted to know of people who could buy gold. Lucas mentioned Musira Chacha (PW1) and even showed the first appellant Musira Chacha's house. Later in the evening the first appellant is alleged to have informed Lucas that he, that is the first appellant, "had his group and a gun and that they wanted to rob money from anywhere". The first appellant is also alleged to have said "zege ikisha korogwa hailali". He said those words after he had asked Lucas who between Musira Chacha and another gold buyer, Bhoke, had more money. At about 8 pmMusira 29 Chacha's home was robbed and deceased was killed with a gun while at the home of Musira Chacha. Lucas named the first appellant to the police and he identified him at an identification parade on 23/11/1988. The question is whether the evidence of Lucas sufficiently implicated the appellant in the murder of the deceased. Lucas was candid enough to tell the trial court that he could not know for certain if the first appellant was party to the murder and the robbery. We think that the farthest one can go with the evidence of Lucas and Kitera (PW3) is that the first appellant is highly suspected to have been party to the murder. The evidence implicating him is circumstantial but we are unable to say it implicates him irresistibly. As Lucas said in answering an assessor's question, people not including the first appellant may have committed the offence. We do not think the doubtful evidence of identification by Joyce (PW6) corroborates Lucas. Corroborating evidence must be reliable, and, when reliable, it must corroborate evidence which is itself reliable. The trial judge, therefore, erred in convicting the appellants as charged. 30 We now wish to recapitulate that once the confessions which in any event were repudiated and retracted are ruled involuntary, and consequently inadmissible as evidence, the only evidence left was that of identification by Joyce (PW6) and Lucas (PW5). The evidence of identification by Joyce (PW6) was ruled unreliable. The evidence of identification by Lucas (PW5) related only to his meeting with the first appellant earlier before the murder and robbery were committed. The circumstantial evidence relating to the suspicious conduct and statements by the first appellant during the day on 14/11/1988 is not conclusive that he or any of the appellants were party to the murder. It is significant also that even Mr. Mlipano, learned State Attorney for the respondent Republic, was unable to support the convi•ion of any of the appellants. We, therefore, allow the appeals of all the appellants by quashing the conviction for murder on all the appellants and set aside the sentence of death which was imposed on each of them. The appellants are to be set free forthwith unless they are held for some other lawful cause. 31 DATED At OAR ES SALAAM this 14th day of August, 2003. J. A. MROSO JUSTICE OF APPEAL E. N. MUNUO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. (F.L.K. WAMBALI) DEPUTY REGISTRAR