republic vs chesco so mtenga 2007 tzhc 179 1 march 2007

IN THE HIGH COURT OF TANZANIA AT IRINGA CRIMINAL SESSIONS CASE NO. 109 OF 2006 REPUBLIC VERSUS CHESCO S/0 MTENGA JUDGMENT Werema. 3. The accused at the dock, Chesco Mtenga, stands charged with the offence of murder c/s 196 of the Penal Code; Cap. 16 R.E. 2002. The particulars of the offence are that on 14th March, 1996 at Kidabaga village within the District and Region of Iringa he murdered LUSTIKA KIDAVA. It is a common ground that on the fateful day, the deceased, the accused and many other people were treating themselves with local brew at a local club owned by one Anjelo Kidava of Kidabaga village. Also present at the club was one Fabian Magelanga, a-biological son of the deceased. Fabian Magelanga testified as prosecution witness, P W .l. It is alleged that the latter left the club at about 19.30hrs. He bade the deceased farewell before leaving for his house. At about 21.30hrs, two people called at his house to tell him that his mother, now the deceased, who he left behind at l the club was lying down at a pathway near the shrubs. He followed them. At the pathway, was a body of the deceased, lifeless. The village Authority was informed and the Police_were notified. The accused, Chesco Mtenga was the suspect. He was arrested on the following day, 15th March, 1998 at-about 10 a.m. At the time of his arrest, he was' treating' himself with local brew in the house of one Anyesi d/o Kahemela. That was within the village. The accused was arrested by People's Militia and civilians. He was taken to the Police custody on the same day. He gave a cautioned statement on 17/3/1998 which was admitted in evidence and recorded as Exh. P.2. The riddle in this trial is that nobody saw the accused killing the deceased. There was no eye witness. The prosecution version is that it was the accused who murdered Lustika Kidava. the deceased. Two witnesses for the prosecution testified while the accused testified on oath for his defence. The prosecution was led by Mr. Patience Ntwina, Learned State Attorney and was assisted by Mr. Charles Mmbando, Learned State Attorney. The defence was marshalled by Mr. S.C. Mwamgiga, Learned Advocate. Both sides discharged their duties honourably and are thus commended for their valuable assistance to the court. 2 The general grund norm in criminal liability is that the onus of proving the charge of murder is on prosecution and the standard of proof is proof beyond reasonable doubt. I think it is appropriate to begin with issues that are not in dispute. In a murder charge, the prosecution has to prove beyond reasonable doubt the following.:- (a) That the person who is the victim of murder, in this case,LUTIKA KIDAVA. is dead: (b) That the death of that person, LUSTIKA KIDAVA, was not natural. In other words, that the deceased met a violent death; ............. (c) That it is the accused, in this case Chesco Mtenga, who caused the death of Lustika kidava: and finally. (d) That the accused, Chesco Mtenga, committed the offence with requisite mens rea or malice aforethought. Issues that are not in dispute are the death of LUSTIKA KIDAVA of Kidabaga village. It is a matter of fact that she is dead. It is also a fact that her death was not natural but th'afsh'e' met a violent death indeed. The Report of the Postmortem Examination which was admitted as Exh. P.2 is evident. This Report was prepared by a Medical Doctor after examining the body of the deceased on 15/3/1998 at about 3.45 p.m. The name of Lustika Kidava appears to be the subject of his examination. The body was identified to the Doctor by the relatives of the deceased. According to evidence, PW.~1 Fabian Maqelanqa and PW.2 D.3040 Staff Sergeant Yohane Haule were also present. There is, therefore no dispute or doubt, that the body was that of Lustika Kidava. / The Report of the Postmortem Examination, Exh. P.2 t evidence that the deceased death was apparently from asphyxiation due to strangulation. The body was foun_d with multiple bruises on the neck and face. It is shown that the deceased was strangled to death. It was a violent death. Her death, was not due to natural cause. The prosecution during preliminary hearing had singled out the report of the postmortem Examination, Exh.P.2 as a document to be relied at the trial. It was admitted without objection. I hold that the prosecution has proved beyond reasonable doubt that Lustika Kidava is dead and that her death was a violent one. The two remaining issues are contentious. Can it be said that it was the accused person who killed the deceased? The prosecution and the defence are not at one. Their final speeches is evidence to the divergence of.opinion. The prosecution is relying on the cautioned statement, Exh. P.l. which the accused made to PW.2. D. 3040 Staff Sergeant Yohane Haule who, at the time of taking the statement, was a detective corporal. The statement was another Exhibit that the prosecution had indicated at the Preliminary Hearing that they will rely on during the trial. The statement was tendered and 4 admitted as such during this trial. The defence did not object to its admission. The statement Exh. P.l was read in court by PW.2 in his evidence. In that statement, the accused is admitting not only that he is responsible for the death-of the / deceased but also describing in minute details as to how that was executed. He said, him and another person Felix Magelanga were allured by one SEMOTO to kill Lustika Kidava. That was on 6/3/1998. The motive being that Lusatika Kidava had accused Semoto's son to have bewitched his father, Semoto's husband. According-to that statement' in which the accused let the cat out of the bag, the accused and his accomplice were promised a sum of Shs. 30,000/= (Thirty thousands shilling only) by Semoto should they accomplish the task. He narrated how on 14/3/1998, a week after Semoto's request, they followed the deceased from behind upon her retirement from the club, snatched her and fell her down. The accused held her legs and Felix Magelanga strangled her by the neck and shutting her up until when they were satisfied that she was dead. He did describe the scene of the crime to have long grasses and shrubs. The time was about 22:00Hrs (10 p.m.). The issue that arises here centers on the admissibility of the evidence exposed in Exh. P.l. In his evidence, the accused 5 retracted the statement. He did not repudiate it. He raised a number of grounds to vitiate his voluntariness in its"making as follows: a) That at the time of the interview with PW.2 he was not in his right frame of mind'. Thus whatever he stated in that statement is not; b) That his mental state was affected by the beatings that were inflicted on him at the. time o f arrest by the People's Militia and Civilians on 15/3/1998;------- c) That he was threatened by Detective Senior Staff Sergeant Nicolaus; later on the accused said it was PW.2 who threatened him; - - ' d) That the statement was not read to himbut he was merely asked to right-thumb the same to signify his signature. As a matter of law, a confession such as the one that is on Exh. P . l. is admissible in evidence. Section 27 (1) of the Evidence Act, (Cap. R.E. 2002.) provides that: ’71 confession voluntarily made to a Police Officer by a person accused of an offence may be proved as against that person". That is a general principle. In order for such statement to be relied upon by the court, the court must be satisfied that it was voluntarily made. If the court is not satisfied that it was 6 voluntarily made it cannot be relied upon to convict the accused person. Secondly, that statement must be made to a Police Officer of or above the rank of a Corporal. This statement, Exh. P .l was made before PW.2 who was then a Detective Corporal. So it was made before an appropriate Police officer. The issue which arises, and an intricate one for inquiry is, whether or not it was voluntarily made. I have taxed my mind on this issue. I did also invite the honorable assessors to give me their opinion on this matter. All assessors affirmed that according to them and as they saw'PW.2 testify, the statement was voluntarily made. The prosecution were of the view that it was voluntarily made. In law, the onus of proving that any confession made by the accused person was voluntarily made by him, is on the prosecution. That requirement is buttressed by section 27 (2) of the Evidence Act. PW.2 D.3040 Staff Sat. Yohane Haule testified before the court. He narrated the procedural aspects that he followed. He impressed me to be a detective who knew what Jie was doing and who had no reason to threaten or held any prejudice against the accused person. He was a witness of truth. He was not cross-examined by the defence. The allegations about threats were not put to him. The defence had the opportunity to shake his evidence and raise doubts on the voluntariness of the statement. I do not know why they did not. I am not convinced by the argument raised by Mr. S.C. Mwamgiga, Learned defence counsel, that it was unnecessary for him to 7 cross-examine PW.2 on what he say "he was a mere author of the statement". According to him, C. 8647 Detective Stf. Sat. Nicolaus who was the investigator of the case was the right person to be cross-examined and not PW.2. He further asked / the court to draw an adverse inference on the prosecution- for not summoning him. This is an interesting argument. The issue of contest was the voluntariness or involuntariness of a cautioned statement that was taken by PW.2 by way of questions by PW.2 and disposition by the accused. The most appropriate person to be queried about it would definitely be PW.2. I still do not appreciate the defence's timidity in face of PW.2. I can only draw an inference that they did not see the weakness of his solid evidence. On the other front, the defence moved the court to reject Evidence of PW.2 because it is not corroborated with an independent and standing alone evidence. I do agree on the general principle of prudence. I also directed honourable assessors on this issue. The prosecution's reply to the defence submission was that a conviction can be sustained by a single witness if the court finds his evidence to be credible and the witness, reliable. Credibility and reliability of a witness is a matter of fact for the assessors to decide. The"verdict'of the assessors on this issue has already been stated. I am tempted to visit literature and precedents on corroboration. What constitutes corroboration? 8 In R v Baskerville ri9161 2 K.B 658. Lord Reading C.J Defined what evidence constituted corroborative evidence for the purpose of the statutory and common law Rules in the following terms: "evidence in corroboration must be independent testimony which affects the accused bv connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is. which confirms in some material particular not only the evidence that the crime has been committed but also that the defendant committed it The test applicable to determine the nature and extent of the corroboration is thus the same whether the case fS llf within the rule of practice of common law or within that class of offences for which corroboration is reouired bv statute" This statement was re-echoed by Lord Hailshan -L.C in D.P.P. V Kilbourne (’1973’) A.C 729 at p. 741 when he sai'd:- "---- In my opinion, evidence which [s (a)_admissible and (b) relevant to evidence requiring corroboration, and, if believed confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed is in fact such corroboration---- " " In the same judgment f D.P.P: Vs. Kilbournel Lord Reid observed also that:- 'We must be astute to see that the apparently corroborative statement Js truly independent of the doubted statement. If there is any real chance that there has been collusion between the makers' of the two statements, we should not accept them as corroborative". t The above decisions throw light, illuminating for the inquisitive mind on the issue of corroborative evidence.. .In_jour_owri jurisdiction, the position is squarely the same as above. First, under section 143 of the Evidence Act, no particular number of witnesses are required for the proof of any fact. In Aziz Abdallah V R. (1991) TLR 71, the CourT'of ""Appeal retaliated this position. It can be said without hesitation or looking behind the shoulders, as it was said in Aziz Abdallah's case, that the purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible evidence. The decision follows P.P.P. V. Hester (1972) ALL R 1056. In the case before me, I am asked by the prosecution to hold that the Evidence in Exh. P .l as read by PW.2 is corroborated by the findings disclosed by the Report of Post­ mortem Examination, Exh. P.2. I do agree. In Exh. P.2, the Doctor formed an opinion that the cause of death was asphyxiation. Asphyxia is the state of being 10 unable to breath causing death or loss of consciousness thereby. The Report also shows that the body .was,,found..with multiple bruises on the neck and face, deep engagement and cyanosis in the pericardium, pericardial, sac and heart. According to the Report, the deceased was strangled to death. That evidence is independent and has not been challenged. It is satisfactory, it is credible and it is sufficient. I think and do hold that it does corroborate PW.2 evidence. That is to say, it tallies with what the accused confessed to PW.2 My understanding of the law and practice is that a repudiation or retraction of the contents of a cautioned at the state where prosecution has closed its cases does not carry weight. That was the decision of the Court of Appeal in The Director of Public Prosecution Vs. Nuru Mohamed Guramrasul [1988] TLR 82 at p. 84. The situation in that case is similar with the instant case. ~ ~ I am aware of the requirement to hold a trial within trial where such a statement is to be retracted. The procedure was laid down long in KINYORI KARADUTU T1955 - 1956V22 - 23 EACA 480. That is, if the defence is aware before the commencement of the trial that such an issue will arise the prosecution should then be informed of fact. It "will then refrain from referring in the presence of assessors to the statement concerned, or even to the allegation that any such statement was ever made'unless and until it has been ruled admissible. When the state is reached at which the issue must be tried, the defence should mention to the court that a point of law arises and submit that the assessors be asked to retire. That should be done before any witness is allowed to testify irrany respect which mighty suggest to the assessors that such statement was ever made. When the matter is resolved, in the absence of assessors, and the judge has delivered a ruling to the effect, the assessors will return. The statement when held admissible a witness to whom it was made would produce it and put in evidence if it is in writing, or will testify as to what was said, if it was oral. Then the defence should cross-examine the witness as to the circumstances in which the statement was made and should recall any witness who has given evidence on the issue in the absence of assessors. Both in the absence and again in the presence of the assessors the normal right to re-examine will arise out of any such cross-examination. That is the.pr_o.cedure as far as a challenge of such statement is concerned. The defence here waited until PW.2 had testified in the presence of assessors. Indeed, there is no other inference'to be drawn except that the purported retraction is an afterthought attempt. That said, I have with same brevity, considered other aspects of law and practice in respect to retracted statements. A number of decided case and jurisprudence establishes some principles which guide courts on this subject. Two principles appear to me to be relevant;- ■‘V a) That a confession is not to be regarded as involuntarily or unlawfully induced merely because it has been retracted at,the trial. The court must consider not only the reason given for making the confession or retracting it, but all other circumstances of the case; b) That a retracted confession may form the basis of a conviction if believed to be true and voluntarily made. However, a retracted confession must be regarded with suspicion and as a rule of practice and prudence it is unsafe to base a conviction on retracted confession above without independent- corroboration. I think these are intended to be safeguards for a fair trial. What can be discerned from the above principles is that the use of a retracted confession is a matter of prudence rather than law. It cannot be laid down as an inflexible rule of practice or prudence that in no circumstances a conviction can be .made without corroboration. If the court is satisfied that the statement was voluntarily made, and then carefully examine the confession and compare it with the rest of evidence in the light of the surrounding circumstances and probabilities~of the case, a conviction can be sustained. 13 Similarly, it is a rule of practice not to rely upon a retracted confession without corroboration, but it cannot be laid down as an inflexible or absolute rule of law that a confession made and subsequently retracted by the accused cannot be accepted as evidence of his guilt without independent corroborative evidence. [Read'SARKAR'S LAW OF EVIDENCE, 13™ Edu [1981] pp 266 - 271]. I have travelled this far not because I enjoy the ride but to warn myself of the danger of ignoring the accused's defence and particularly his retracted statement. It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. For these words,-I am indebted to Lord Gordon Hewart in his Jackson's The Chief. I know that Injustice is relatively easy' to bear, and that what stings is justice. Having been satisfied that all matters are matters for the Judge to answer in limine and having been satisfied, like the honourable assessors did, I am settled in my mind that the statement in Exh. P.2 which the accused is now attempting to retract was voluntarily made. His retraction of the same has no effect. I am also in agreement with the prosecution that Exh. P.2 is corroborated with another independent and standing alone evidence on Exh. P . l. I will in a moment explain. In Exh. P.2. at p.3 the accused person is recorded have said "---- Mimi na Felix Magelanga tuliondoka tukimfuatilia nyuma mpaka alipofika karibu na Kanisa la R/C Kidabaga tulimshika miguu ambayo niliishika mimi na mwenzangu alimkaba koo na mdomo alimziba ili asipige kelele . . . alimlala kwa nguvu akiwa ameendelea kumbana koo na kumziba mdomo ili asipige kelele'hadi tulipogundua kuwa amefariki dunia tuliondoka na kumwacha hapo mahali tulipofanyia shughuli hiyo ambapo kulikuwa na majani pamoja na miiba ambayo hata mimi iliniumiza miguu . . ." The accused is explaining how they did execute the heinours crime. They strangled the deceased- to death. According to the Report of the Post-mortem Examinations rExh.P.ll. the Doctor's opinion is that death of the deceased was due to strangulation leading to asphyxiation. The two, that is, Exh-P.2 and the Exh. P.l. are consistent on-the cause of death. Further, the accused explains the scene of the crime. It is consistent with what PW.l told this court. That there were shrubs. Whether corroboration may not be necessary or not, in this particular case, I do find and hold that, the statement Exh. P.2 is corroborated, as to the cause of death, with Exh. P . l: and to the surroundings of the scene of the crime with the evidence of PW.l. 15 As to Felix Magelanga there was, as I discern from the evidence, a common intention and section 23 of the Penal Code applied. Section 23 reads:- "When two or more persons form ' a' common t intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was the probable consequence of the prosecution of such purpose, each of them js deemed to have committed the offence." Based on the findings above, I hold on the third issue for determination without slightest hesitation, that it was the accused at the dock who killed LUSTIKA KIDAVA. ___ I have held that the prosecution have proved beyond reasonable doubt that Lustika Kidava is dead. That her death was not of a natural cause bu.t a violent death. Further, that it was the accused, Chesco Mtenga, who killed Lustika Kidava violently. The last issue for determination and an equally important matter to be proved is in respect to the mens rea of the offence. The mens rea for the offence of murder is malice aforethought. Did he intend to kill the deceased? According to Exh. P.2. the accused disclosed that they were allured to kill the deceased and were to be paid a sum of Shs._ 30,000/= (Thirty Shillings only). So though motive for the' killing is not 16 neeessary to be proved, here there was a motive for the killing. It begun from 6/3/1998 at Semoto's place. The accused and his accomplice followed the deceased t when she had retired from the club on 14/3/1998. They strangled her to death. They did not move until they were certain that she had died. Denying the right to inhale and breath, they knew was a method sufficient to bring about her death. Asphyxiation will lead to death. The accused's defence could be that he only held her legs. But the law, infer common intention to both, even a stand-by person, where all had a common intention of prosecuting an unlawful purpose. Malice aforethought could be inferred from the preparation. That is exactly what happened here. The assertion that the accused could not have committed this murder because he could not be hired for Shs. 30,000/= is untenable. It is equally sardonic that he killed a person whom he calls "step-mother". So, I do hold again on the fourth issue.that the accused committed this murder, with malice aforethought as described in law. Thus, Fiat Justitia et ruant coeli. I do convict the accused, Chesco Mtenga for the offence of murder of LUSTIKA KIDAVA of Kidabaga village, as charged. 1.3.2007 17 Mitigation:- N i I SENTENCE t The greater incitement to crime is the hope of escaping punishment. Under our laws once the court convicts an accused person, there is only one punishment, to suffer death. I, therefore by virtue of the law, do sentence, Chesco 'Mtenga, the accused, to death. I direct that he suffers death by hanging. Right of Appeal explained as per s. 323 of the C.P.A. x „ \ w F. M. Werema % V>\ JUDGE' 1/3/2007 *.*u- S • ,'f ,y V sessors thanked and discharged. F. M. W UDGE 1/3/2007 18 Coram: Werema, J. Mr. Mmbando, State Attorney for the Rep. Mr. Mwakingwe for Mr. Mwamgiga for the Accused. t Charles, C/C. Assessors - Present. coram as above.