20060313 TZCA Mwanza2

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MROSO. J.A., MUNUO, J.A., MSOFFE, J.A.) CRIMINAL APPEAL NO. 240 of 2004 1. RASHID ALLY MTILIGA ] 2. JUMA MUSSA @ TIT! ] ............................. APPELLANTS 3. MARTIN CHARLES @ MANGASINI] VERSUS THE REP'UBLIC •••••••• II •••••••••••••••••••••••••••••••••••••••••• ••••••••• ■ RESPONDENT {Appeal from the conviction of the High Court of Tanzania at Tabora) (Mjasiri, J) dated the 7 th day of December, 2004 in Criminal Sessions Case No. 21 of 1998 JUDGMENT OF THE COURT MSOFFE, J.A.: The· ·appellants were sentenced to suffer death by· hanging conseq(Jiht upon their conviction for the murder of Juma Mwilima on 21/6/95 at Lumumba street within the Municipality, •District and Region of Tabora. Aggrieved, this appeal has been preferred. Mr. Nasimire, learned advocate, appeared and argued the appeal on their behalf. On the other hand, Mr. Vitalis, learned State Attorney, . .. ' l• 2 . . . appeared for the respondent Republic and declined to support the conviction. The facts of the case were simple, and may be stated briefly as follows:- The appellants were residents of the Municipality of Tabora. The deceased was employed as a watchman by orie Haji . Ashraf who had a house along Lumumba street within the said mu:\icipa!ity. The house was close to a bicycle godown owned by one .Alnoar Pira. It was alleged that on the night of 21/6/95 t~e app~llants went to the godown for the purpose of stealing bicycles •· and accessories. They found the deceased on duty. Seeing that the deceased would be an impediment in their mission they decided, to eliminate him. Accordingly, they strangled him to death and dumped his dead body in a nearby bush. Having murdered the deceased, the appellants broke into the godown and stole a number of bicycles and .' . .: ·, . . acc~f;SOries. The deceased's body was found in the morning of 22/6/95; The body was examined and the cause of death ·was shown as severe asphyxia. The appellants were arrested and charged. 3 The appellants' 'defences were general denials of guilt. They denied killing the deceased. On the available evidence, it is clear that the appellants were. c0nvicted on retracted "confessions". The alleged confessions were · tendered in evidence as exhibits P3, P4 and PS. In convicting the appellants the judge also found that the retracted "confessions" were -corroborated by the evidence of PW3, an accomplice, and also by the post mortem examination report. There are two grounds in the memorandum of appeal. They read cs follows:- L That in convicting the appellants the learned trial judge erred in relying on their alleged retracted confessions without independent corroborative evidence. 2. That having made a finding that PW3 was an accomplice; the learned trial judge· ·ought not to have relied on his evidence in convicting the appellants in the absence of some other evidence to corroborate it. 4 In arguing the first ground Mr. Nasimire submitted, and was supported by M_r. Vitalis, that the alleged confessions were not caution statements in the first place. At best these were interviews, learned counsel contended. If the court were to find that they were true cauti9n statements which were retracted, then they ought to have been corroborated if a conviction was to lie. In this case, there was no independent corroborative evidence, both learned counsel urged. As for the second ground of appeal Messrs. Nasimire and Vitalis maintained that the evidence of PW3 needed corroboration, which was lacking in the case. Furthermore, since the evidence of PW3;in -itseif needed corroboration, it could· not be used to corroborate other,. evid~nf:t~. In support of this view learned counsel cited this Court's· decision in.the case of Faustine Manitane@ ,:-ino and Another v. R Criminal Appeal No. 62/91 (unreported). On our part, we are of the settled view that the most important point in tbe appeal is whether or not the statements (exhibits P~, P4 5 and PS) were cautioned statements. We think this should be the focal point in the appeal. We have gone through exhibits P3, P4 and PS very carefully. In the end, we are satisfied that these were not cautioned statements within the provisions of s. 58 of the Criminal Procedure Act, 1985. At best, these were interviews under s. 57 of the said Act. In Seko's case this Court, (Ramadhani J.A., Mroso J.A. and Kaji J.A.) stated:- " .The initiative in a cautioned statement under section 58 comes from the suspect and then there is requirement for the recording officer to ensure that the suspect has been cautioned as required under section 53 (1) (c) of the CPA ........................................................ . A cautioned statement under section 58 is supposed to be written without the writer being ·led by being asked questions. That is the import of s. 58. On the other hand, a record of interview under section 57 is required to be recorded in question and . . 6 answer model. This comes about when a police officer Is interviewing a person to •. ascertain whether he/she has committed an offence and if that person makes a confession · It will, therefore, follow that once exhibits P3, P4 and PS are expunged from the record there is no other independent evidence upon which a conviction could lie against the appellants. The evidence of PW3 could not be used to ground a conviction because being the evidence of an accomplice it needed corroboration, which is · lacking in the case. Otherwise, we would agree with Messrs. Nasimire and Vitalis : ;,. that in ideal cases retracted ·confessions need corroborat!on as a matter of practice. Of course in saying so we are aware that it is possible for a court to convict on a retracted confession even without corroboration but such a confession must be received and treated with- great care, .caution and reserve. We also agree with learned counsei that, assuming this was an ideal case, the evidence of PV.J3 ' , 7 being that of an accomplice and which in itself needed corroboration could not corroborate the .. retracted . confessions. In the event, and for the reasons stated, we allow ·the appeal, quash the conviction and set aside the sentences. The app~llants are to be released from prison .unless they are held therein in connection with .. !awful . cause(s). DATED at MWANZA this 13th day of March, 2006. J. A. MROSO JUSTICE OF APPEAL E.N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original.