20081125 TZCA Dodoma6

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And MBAROUK, J.A.) CRIMINAL APPEAL NO. 3 OF 2006 1. JUMA RAMADHANI ] 2. HASHIMU ABDALLAH ] ...................................... APPELLANTS I VERSUS THE REPUBLIC ................................................... ~ ..•... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma} ' (Mjasiri, J.) dated the 2 nd day of June, 2005 in Criminal Sessions Case No. 62 of 2000 JUDGMENT OF THE COURT 18th & 25 th November, 2008 MBAROUK, J.A.: The appellants Juma Ramadhani and Hashimu Abdallah were convicted of murder contrary to section 196 of the Penal Code by the __ </ High Court of Tanzania sitting at Dodoma, Mjasiri, J. (as she then was) in Criminal Sessions Case No. 62 of 2000. ,The murder was alleged to have taken place on or about 10th day of February, 1998 I at Mwingiri Mpetu Village within the District and Region of Singida. The appellants were alleged to have murdered one Bakari Iddi. ' ,'J. 2 " At the commencement of the hearing it was learned that the 1st appellant Juma Ramadhani has died, hence the Court accordingly ordered his appeal to abate under Rule 71(1) of the Court of Appeal Rules, 1979. Without any further delay we ordered the 2nd . Appellant's appeal to proceed. ·,,,I'·'! Facts constituting the background to the present appeal could be briefly stated as follows: On 3.3.1998 two gold diggers namely Bela and Mrema from Muhitini goldmine went to inform PW1 Said Sendeu, that the deceased Bakari Iddi had disappeared from their camp since 9.2.1998. PWl, a camp leader, reported the matter to Ikungi Police Post on 5.3.1998. The reporting led to the arrest of the appellants and other suspects. Thereafter the appellant Hashimu '; ) Abdallah took the police and other villagers to the scene of the crime where a skull, bones, bicycle and other items were found. All those items were believed to belong to the deceased Bakari Iddi. PW1, Said Sendeu, PW2 No. D8 D/Cpt. Cheyo and PW3, John Mkindo, the Ward Executive Officer of Mpetu Village testified to that effect. '. ~ . . ..- . r· .. -~ I 3 At the trial, the prosecution mainly relied on: the circumstantial evidence, cautioned and extra-judicial stateme~ts made by the appellants to prove their case. Cautioned statemeQts ( exhibit P2 and P6), which contained detailed confessions were .~ade before PW2 No. D8 D/Cpt. Cheyo and PWS retired Corporal M1 chael C.5131. As 1 I we shall see later, the respondent Republic prayed I for those I 1, ) cautioned statements to be expunged for cont~ining procedural irregularities. On the other hand, the prosecution relied on the extra-judicial 1 I statement ( exhibit P. 7) of the appellant Hashimu .A;bdallah, recorded by PW6 Hamisi Makala, a Justice of the Peace. Both cautioned and extra~judicial statements 0Jere admitted by the learned trial judge after a trial within trial was ~onducted. After the evaluation of the contents in those statements and the evidence as a whole, the learned trial Judge Mjasiri, J. (as she: then was) found 1 the appellants guilty as charged. Hence, both the ,appellants, were ' .. ,: . .,.. - . ·. 4 accordingly sentenced to suffer death by hanging. Aggrieved by the conviction and sentence, hence this appeal. The appellant Hashimu Abdallah was represented by Mrs .. Mary Munissi, learned advocate and the respondent Republic was represented by Mr. Prudence Rweyongeza, learned State Attorney. () The memorandum of appeal filed contains four grounds of appeal, but Mrs. Munisi opted to abandon the third ground of appeal. Hence only the following three grounds of appeal remained, namely:- 1. That, Hon. Trial Judge misdirected herself in law and in fact in basing her conviction on the retracted/repudiated confessions of the appellants. 2. That, the Hon. Trial Judge misdirected herself in law and in fact in holding that there was an unbroken chain of circumstantial evidence which linked the appellants to the death oflhe deceased. 3. That, the Hon. Trial Judges misdirected themselves in law and in fact in finding that the thumb printing of the caution · statement by the 1st and Z'd appellants was safer and a • - r • ·._ . . _,,· . .• .. - .'.':_ -. 5 I I safeguard against alterations than scribpling having found as a fact that the appellants were able to: read and write. I Without wasting much of our time and before going any further I I we wish to pointout fro·m the outset that the learned State Attorney i I prayed for the cautioned statements to be expunged. I Mr. i ' I Rweyongeza, learned State Attorney for the respondent Republic, ' I found that the cautioned statements (exhibit P.2 and P.6) contained . I irregularities contrary to the mandatory provision~ of the law. Mr. I I Rweyongeza mentioned Sections 50(2) and 57 ( 4) of the Criminal Procedure Act Cap.20 R.E. 2002 (CPA) as the prowisions which had been violated. In support of his argument, Mr. Rweyongeza referred I I . us to the decision of this Court in Emmanuel , Malahya versus I I Republic, Criminal Appeal No. 212 of 2004 (unreported). I On the other hand, Mrs. Mary Munissi, earned advocate for the appellant had no objection to the prayers. I On our part, we are of the considered I opinion that the I violation of sections 50(2) and 57(4) of the CPA was 'fatal. As i 6 pointed out in the case of Emmanuel Malahya (supra) such provisions safeguard the human rights of suspects and they should not be taken lightly or as mere technicalities. We therefore, accordingly expunge the caution statements ( exhibit P.2 and exhibit P.6). In the result, the expunging of the caution statements (exhibit '") P.2 and exhibit P.6) has affected the number of grounds of appeal in the memorandum of appeal to the extent of being narrowed down. It is our task now to examine closely the remaining part not connected with caution statements in the memorandum of appeal. Firstly, as to whether the trial High Court Judge misdirected herself, in law and in fact in basing her conviction on the appellant's : __) extra-judicial statement (exhibit P.7) "recorded by PW6 Hamisi Makala, Justice of the Peace. Secondly, we shall examine the 2nd ground of appeal as it appears in the memorandum of appeal. For that reason, our discussion will focus on those two issues. >-~ < •:: (?f.i_· ,, ._;:-* • . : ... ; -.._.. •. , "' 7 I As to whether the trial judge misdirected he~self in basing her conviction on the appellant's extra-judicial staten1ent (exhibit P.7), I Mrs. Mary Munissi learned advocate for the appellant had nothing I convincing to say .on it. She just gave a blanket statement by ! i submitting that the element of torture encompassed during the I I recording of the statements at the police affected the recording of the extra-judicial statement (exhibit P.7). She believed that the 1 -✓ , extra-judicial statement(exhibit P.7) was not volunt~rily I made, hence not truthful, because it was made under torture. Mrs. Mary Munissi . I maintained that the extra-judicial statement was recorded when the ! appellant was under tension. After all, she added that it was a very short one. i On his part, Mr. Rweyongeza for the respbndent Republic, ., ) contended that there has been . no misdirection occasioned I by the trial judge. We think, Mr. Rweyongeza correctly maintained that 1 I when the appellant appeared before PW6 Hamisi Makala, Justice of I the Peace, no element of torture was established. 1He referred us to I pages 67 and 87 of the record where the trial judge inoted thus:- 1 I I 8 "The beating did not take place when the statement was being recorded. The PFJ admitted in court did not indicate that the Second Accused had injuries or wounds ( exhibit P •~ '?. " Mr. Rweyongeza further submitted that, the contents in the PF3 ( exhibit P "A") clearly show that the appellant was not tortured. He "') added that PW6, Hamisi Makala, Justice of the Peace confirmed that he- recorded the _ extra-judicial statement (exhibit P.7) according to the basic requirements and procedures. Mr. Rweyongeza added that when the Justice of the Peace (PW6) was cross examined by the 2nd Assessor Yusuf Hassan, he was quoted to have said that:- "When I was talking to the second accused_ person in my chamber he did not show any signs of fear or of being afraid." (Emphasis added). On ·our part, we are of the considered opinion that there has been no misdirection occasioned by the trial judge when she based her conviction relying on the extra-judicial statement (exhibit P.7). Like Mr. Rweyongeza, we are satisfied that it was voluntarily made as ,. . :,.:·.t . . ::: -~-- - ' ·:::_ :.:·· ··.-. . . :. . . .·~-<- __ -~~·; 9 found by the learned trial judge. From the evidenc~ on record in this I case, we are of the firm belief that no element ofl torture had been occasioned to the appellant Hashimu Abdallah ih the process of I recording his extra-judicial statement before PW6 .. In the result, we i are of the firm opinion that, the extra-judicial statement (Exhibit P.7) contained nothing but the truth on how the appellant fully i participated in the murder of Bakari Iddi, the deceased. '· ) I nd This brings us to the 2 ground of appeal on whether there . I was an unbroken chain of circumstantial evidence i which linked the I appellants to the death of the deceased. The learned advocate for I the appellant gave a detailed submission in support of the 2nd ground 1 of appeal. She started by submitting that it is upon the prosecution 1 to prove the offence against the appellant Mrs. Ma ry Munissi was of I the firm belief that according to the evidence on record, the chain of () I circumstantial evidence relied by the prosecution haclt been broken. In elaboration she submitted that, as far as there wa~ no eye witness I who physically identified the appellant doing the act ,of murder, it was 1 only circumstantial evidence which had been relibd upon by the I I prosecution. She supported her argument by citing the case of Ally I Bakari and Another Vs. Republic [1992] TLR 10 where it was held that:- "Where the evidence against the accused is wholly circumstantial the facts from which an . inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be inferred. " Mrs. Ma_ry Munissi further submitted that at the scene of the crime only a skull, bones and some items which were not identified as belonging to the decease Bakari Iddi were found. She added that all the prosecution witnesses who testified to· have found those remains of skull and bones testified as mere laymen. She then cited the decision of this Court in Katabe Kachochoba Vs. Republic () [1986] TLR 170 where it was held that:- "We are not prepared to accept a layman s view that the kidney and heart and part of the skull were human remains. " _-.--:>·:(J-:. ,. .: ,' I 11 I Mrs. Munissi also contended that the items like "Katambuga", II bicycle and Montana bag containing clothes believ~d to have been I owned by the deceased Bakari Iddi were not fully identified. She i argued that the bicycle (exhibit P.l} found in that f6rest was not the I only one in that village. She said no one among the prosecution I witnesses had identified the bicycle or other items found with the ! ' skull . and bones. Mrs. Munissi then distinguished this I case with that ; / of Hamida Mussa Thimotheo and Another Vs. Republic [1993] / i TLR 125 where this Court was satisfied that the chain of I circumstantial evidence linking the appellants to tHe death of their - I father was found to be unbroken. Finally, Mrs. Munissi urged us to allow the a~peal, quash the I conviction and set aside the sentence. On his part Mr. Rweyongeza, learned State Attorney for the respondent Republic, vehemently argued that the prosecutions I evidence has sufficiently proved that the deceased Bakari Iddi has I 12 been killed. He submitted that it is not necessary to have scientific evidence to prove the death of the deceased. Mr .. Rweyongeza was of the. firm view that since the extra- . judicial statement (exhibit P.2) was nothing but the truth, it corroborated the prosecution witnesses' evidence that the items identified by them belonged to the deceased Bakari Iddi. Mr. ;) Rweyongeza further submitted that PW1 who was a camp leader of the gold diggers satisfactorily identified the items as belonging to the deceased Bakari Iddi. He said that PWl had identified the deceased's bicycle as a red and black Hamilton sports bicycle. The bicycle was accepted and marked exhibit P.1 without any objection from the defence side. Also, he said when PW2 testified, he produced a small brownish Montana bag, and the same was accepted () and marked as exhibit P.3 without any objection from the defence side. Furthermore, Mr. Rweyongeza submitted that in that Montana bag was found a weighting machine for weighing gold and a hospital chit from Puma Hospital bearing the deceased Bakari Iddi's name. Without any objection from the defence side the Hospital Chit was 13 accepted and marked as exhibit P.4. · A gold weighing machine was accepted and marked as exhibit P.5. He said all trose items were I fully identified by PW1, as the properties of the deceased Bakari Iddi. Mr. Rweyongeza further referred us to the case of Mathias ! I Bundala versus Republic, Criminal Appeal No. 62 of 2004 (unreported) and believed the items were fully identified by PWl in i court as to have belonged to the deceased Bakari rbdi. Finally, Mr. I Rweyongeza was of the view that :the prosecution! had sufficiently ' ' proved that the remains of skull and bones found in the forest were those of the deceased Bakari Iddi. Lastly, he prayed for the appeal to be dismissed. On our part we are of the firm belief that there was no unbroken chain of circumstantial evidence which linked the appellant to the death of the deceased Bakari Iddi. This is because firstly, 1 I I there is the appellant's extra-judicial statement (exhibit P.7) in which he narrated the whole story as to how he participated in murdering 14 the deceased. We believe that it was voluntarily made without torture before PW6 Justice of the Peace, and therefore a true confession to the offence of murder. We are of the opinion that what was stated in the extra-judicial statement was corroborated by the discovery of the deceased's identified items at the scene of the crime, where the appellant led 'J the investigators. As already shown in this judgment the items were tendered in evidence without any objection from the defence. We are of the firm opinion that the conditions· specified in the case of Ally Bakari and Another (supra) have been fully satisfied. The evidence against the appellant though partly circumstantial, taken together with his confession proved the case beyond reasonable doubt. In the event, we are fully and accordingly satisfied beyond reasonable doubt as was the learned trial judge that in the circumstances mentioned herein above, Bakari Iddi was murdered by the appellant Hashimu Abdallah. .- - '. . --·- - - . ' In the result and for the above mentioned : reasons, we accordingly dismiss this appeal in its entirety. DATED at DODOMA this 25 th day of Novem~er, 2oosi E. M. K. RUTAKANGWA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL M.S.MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. ,,.-··· ----7t-:::;;:71:__4-->--··1 I ( S.S. MWANGESI\_:-}- .SENIOR DEPUTY REGISTRAR