20060306 TZHC Mwanza

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUNUO, J.A., MSOFFE, J.A., And KAJI, J.A. CRIMINAL APPEAL NO. 6 of 2003 SONDA NGULUNGWA ......... ~-... ; .... ~-. .................................... APPELLANT VERSUS THE REPUBLlC ............................................................. RESPONDENT (Appeal from the conviction of the High Court of Tanzania · at Tabora) (Ihema, J) dated the 20 th day of December, 2002 in Criminal Sessions Case No. 21 of 1995 JUDGMENT OF THE COURT KAJI, J.A.: The appellant, Sonda ,Ngulungwa,' was charged with the offence of murder contrary to section 196 of the Penal Code. He was It is in• the record that on 29.8. 93 the body of the deceased Kashindye s/b Izengo Kayungilo- was- found at a place at Mwasala Village where youths used :to attend a local dance. An alarm was sounded and villagers assembled. There was no suspect at that . . . ... ,I, 2 time. The police at Nzega Police Station were informed. An autopsy was conducted which showed the cause ·of death to have been due to a severe depressed skull and fracture on the left temporal and parietal bones (Exh. Pl). Few days later, the appellant, who hailed from a nearby village of Ifumba, was suspected to have been involved in the killing of the deceased. He was arrested by sungusungu militia and taken to Mwasala Village Committee. According to PW1 Talyani Kabota, a sungusungu commander of Mwasala who had led the arresting team, the appellant is alleged to have admitted voluntarily before the ! village comm1tte to have participated in the murder of the deceased. From the vill~ge committee the appellant was taken to another place , where he was further interrogated by a group of sungusungu commanders.' Again, . according to PW1 who was among the interrogators: the appellant is alleged to have admitted to have participated ir, the killing of the deceased. The appellant was handed over to __ the .Police P.W2 Inspector Aristides Mushwahili ar:id PW3. Assistant Inspector Samwel Mtangi who also alleged the appellant . admitted to ~hem voluntarily. PW2 recorded a caution statement of I 3 the appellanf which was rejected by the court on the ground that it was not made voluntarily. In his defence the appellant denied any involvement in the offence charged. He. also· denied to have admitted to have participated ih the killing of the deceased. He further asserted that, . any purported admission was either false or was obtained through threats and torture. The le~rned trial judge (Ihema J) convicted the appellant j mainly on the ground that, he had admitted voluntarily to PWl at the time he was arrested, then to the village authority, and later to PW2 and PW3. The appellant was aggrieved; hence this appeal. Before :us the appellant was represente9 by Mr. Byabusha, learned counsel. The respondent Republic was represented by Mr. Mdemu, lear:ned State Attorney. Mr. Byabusha preferred four grounds of appeal which basically hinge GA the evider-ice of PW1, PW2, PW3 ~nd the alleged appellant's admission to the village i committee and to the sungusungu commanders. I , ., c.. r i 4 Mr. Byabusha contended that, the learned trial judge erred in law in relying on the alleged admission to PW1 because PW1, being a sungusungu member, is equated with a Police Constable under the Peoples Militia Act as amended by Act No. 9 of 1989. In that respect it is inadmissible under section 27 of the Evidence Act, 1967, observed the learned counsel. The learned counsel further contended that, the said admission or confession was also made involuntarily, :and that it was not corroborated in material particulars by any independent evidence. For that reason too it should not have been relied upon in convicting the appellant, contended the learned counsel. The learned counsel further contended that, the learned trial judge erred in law in holding that, the retracted confessions to PW2 and PW3 we:re corroborative to the retracted confession alleged to '. have been made to PWL The learned counsel pointed out that, the . . appellant had retracted any confession alleged to have been made to , PW2 and PW3, and that since those confessions were retracted, they . . could not corroborate the retracted confession alleged to have been · made to PW1. 5 The learned :counsel observed that, the condition under which the alleged confession was made to the sungusungu and to the village committee was not conducive for a free and voluntary confession. The learned counsel pointed out that, the learned trial judge correctly rejected the' caution statement alleged to have been recorded by PW2. But the learned counsel wondered why the learned judge relied on the :contents of the rejected caution statement in convicting the appellant On his part, Mr. Mdemu, learned State Attorney for the respondent Republic, did not resist the appeal, mainly on the grounds submitted by the learned counsel for the appellant. The learned State Attorney · further pointed out that, after the caution statement was rejected by the court, the prosecution. case collapsed as there was .no other evidence upon which to convict the appellant. Like the learned - .., ··----~--~----·courisei-foTTneappellanl;-the learned State Attorney also wondered. why the learned trial judge relied on the contents of the caution statement which had be.en r,ejected in evidence. On ou~ part, for easy appreciation of the judgment of the learned trial :judge, we propose, even at the risk of making this .. .· 6 judgment unduly long, to quote a relevant part of it in extenso. The learned judge remarked as follows:- ''I have carefully considered the material e~idence on record for and against as well as the lucid submissions of the learned counsel .. ,.. the evidence of PWl Talyani Kabota c~nfirm that following investigation mounted by his team - the sungusungu - the accused was arrested at Ifumba Village. Upon interrogation the accused not only admitted participating in the murder of the deceased but gave a narrative of the plot ..... The same admission was repeated to PW2 and PWJ on 7.9.1993 when he was arrested. ... .. I also agree that the evidence of PWl is relevant with evidential value in terms of section 23 (c) of the Evidence Act 1967 ..... There is no ________ .. Jfoub..t_in _my_miacl.thc1tI foJ.md ew-1 to ae ?J -~--= witness of truth' as such he is to be trusted in his testimony that the admission of the accused before the village authorities and the . slmgusungu at Mwasala Village/ was voluntary. Equally, I take the firm view that the retracted admission/confession by the ,I. 7 accused at the trial taking into account all the material points and accompanying circumstances cannot but be a true account for this court to act upon it ..... I am quite conscious that the issue here relates to a retracted confession by the accused. As a matter of prudence cum practice I should d(rect myself that it is dangerous to act upon i a! statement which has been retracted in the absence of corroboration in some material particular. However I am equally minded that Ji will do so if I am fully satisfied in the circumstances of the case that the confession m,ust be true. In the present case I am ifldeed satisfied that the admission by the accused tells it all and as such it cannot but be true. In -addition the evidence of PWl and PW2 confirms the voluntary admission by the atcused in 'his participation in the plot and eventual murder of the deceased Accused's admission at the time of his arrest at Mwasala Village. It Is for these reasons that I agree with-the- assessor who found the accused i guilty of murder as charged. " . \. 8 It is essentially this part •of the judgment which the appellant, through his advocate, is complaining against. There is no doubt that the appellant's alleged admission/confession to PW1, a sungusungu commander, is inadmissible under section 27 of the Evidence Act, 1967, since PW1 is classified as a police constable under the Peoples Militia Act, as amended by Act No. 9 of 1989. Section 27 of the Evidence Act, 1967 allows confessions made to a police officer. · Under section 3 of the Evidence Act the word "police officer" is defined to mean "any member of the Police Force of or above the rank of corporal." Therefore it goes without saying that a confession to a constable, a rank below. . corporal, is inadmissible. ; Also the appellant denied to have admitted voluntarily. He said he was tortured: by sungusungu and was forced to admit. According to the general modus operandi of sungusungu at that time, the appellant's assertion cannot be····rejected -lightly:-· We are doubtf_u_l-in---··-----·~·•-- our minds whether the alleged admission/confession was made voluntarily. The benefit of .doubt must be resolved in favour of the appellant. • 9 As for the evidence of PW2 and PW3, these witnesses reiterated what was in the caution statement which was rejected by the court for being made through torture. Their oral evidence on this should also have been rejected as was held by this Court in Moris Agunga I and Two others v. R .:.. Criminal Appeal No. 100 of 1995 Mwanza (unreported).: As for: the alleged admission/confession before the village committee, according to the whole process as described by PW1 it is doubtful whether the· condition was conducive for a free and voluntary admission/confession. Discussing a similar issue in DPP v. Regina Karantini and Another - Criminal Appeal No. 110 of 1988 - Mwanza (unreported), where confessions were alleged to have been made b'efore a big crowd at a CCM BrancH, the Court held that the condition was not conducive for a free, voluntary and truthful confession. We hold the same view. The le~rned counsel for the appellant and the learned State Attorney wondered why the learned trial judge relied so heavily on· the contents· of the rejected caution statement in convicting the .Jo"'·~. t;, .'· ·, ~ 10 - appellant. We think we do not have the right answer .. But what we can say for certain is that, it is wrong to base a conviction on the contents of a: caution statement which has been rejected in evidence .. As correctly observed by the learned State Attorney, after the caution statement was rejected, the prosecution case had no leg to stand on. It collapsed. : ' . It is for the above reasons that we allow the appeal, quash the conviction and set aside the sentence. The appellant is to be released forthwith from prison unless lawfully held. DATED :at MWANZA this 6th day of March, 2006. E. N. MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL ------~-.-N..-W----------------- JUSTICE OF APPEAL I certify that this is a t_rue copy of the original.