20120223 TZCA Mwanza

.• )C,, \. ,, \ 'l9 ,Ii/,'' 1 'iJ" IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MSOFFE, J.A., BWANA, J.A., And MJASIRI, J.A.) CRIMINAL APPEAL NO. 189 OF 2006 1. PASCHAL RAZARO ] 2. TANAZIA PETER ] ·................................................ APPELLANTS .VERSUS THE REPUBLIC ..........................•.................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Luanda. J.) dated the 10th day of April, 2006 in Criminal Sessions Case No. 71 of 2003 JUDGMENT OF THE COURT 17& 23 February 2012 MJASIRI, JA.: The appellants Paschal Razaro and Tanazia Peter were charged \ with murder contrary to section 196 of the Penal Code, Cap 16 R.E. 2002. It was alleged by the prosecution that on or about September, 1, 1998 at Kasozibakaya Village within Biharamulo District in Kagera Region they murdered one Vian Kashongole. The High Court sitting at Bukoba (Luanda, J.) convicted the first and second appellants as charged. Consequently the appellants were sentenced to death. Being dissatisfied with the conviction and sentence by the High Court, the appellants appealed to this Court. In this appeal, the appellants were represented by Mr. Paulin Rugaimukamu, learned Advocate, and the respondent Republic was represented by Mr. Pius Hilla, learned State Attorney. At the hearing of the appeal, Mr. Rugaimukamu, sought leave to withdraw the Memorandum of Appeal filed on 28th September, 2010 and to proceed with the Memorandum of Appeal filed on February 7, 2012. The learned State Attorney had no objection to this application, and Mr. Rugaimukamu was allowed by the Court to proceed with the Memorandum of Appeal filed in February 2012. Mr. Rugaimukamu presented four (4) grounds of appeal which are reproduced as under: 1. That neither the death of Vian s/o Kashongole, nor his cause of death and his identity were pro.ved sufficiently or at all by the prosecution evidence. 2. There was no evidence which proved beyond reasonable doubt that the appellants caused the death of Vian s/o Kashongole. 3. That the evidence of PW1 and PW2 against both appellants were inconsistent, contradictory and unreliable. The tr:ial Judge ought to have disregarded the same. 4. That the confession of the 1st appellant and the extra-judicial statement of the 2nd appellant on the basis of which the appellants were convicted were improperly obtained and recorded. The trial Judge erred in .law to accept the same. 4 The prosecution case relied on the confessions made by the appellants, that is the cautioned statement of the 1st appellant and the extra-judicial statement of the 2nd appellant and the evidence of PW1 and PW2, Lucas Lameck Mapuga and Samwel Kalidushi Mahula. In grounding the convictions against the appellants the trial Judge relied· on the confessions of the appellant which he observed that they were corroborated by the evidence of PW1 and PW2. In relation to ground No.1 Mr. Rugaimukamu strongly challenged the testimony of PW1 and PW2. He argued that the said evidence was full of inconsistencies and contradictions. It was therefore very unsafe to rely on the said evidence. Mr. Rugaimukamu further stated that the person who narrated the sequence of events to PW2, one Yohana Kazoya, did not give evidence in Court~ Mr. Rugaimukamu pointed out to the Court, several contradictions and inconsistencies. He stated that according to the. 5 charge sheet, the appellants were alleged to have caused the death of the deceased on September 1, 1998. PW1 testified that he received information about the incident on December 13, 1998 around 2.00 p.m. from Yohana Kazoya that the appellants killed the deceased by administering poison in his food on September 1, 1998. The deceased's body was thrown in a pit latrine of ·a church toilet. PW1 also testified that the deceased and the 2nd appellant were husband and wife and they lived together. Mr. Rugaimukamu further stated that according to the testimony' of PW2, PW1 who was the Village Executive Officer was not present when the incident was reported by Yohana. PW2 testified that he last saw the deceased in November 1998, that is one month after the incident was reported to have occurred. PW2 also stated that the second appellant was the wife of the appellant and they lived- together. Mr. Rugaimukamu submitted that if the appellant was reported to have died in September 1998, how could he have been seen by PW2 in November 1998. He also stated that since PW1 was not even in the office when the report was made by Yohana, his testimony was hearsay and did not have any evidentiary value. PW2 also stated that they saw human bones in the pit latrine but no expert evidence was presented to confirm that human bones were found. There was no post-mortem report, no doctor's opinion and no doctor testified. Mr. Rugaimukamu therefore reiterated that neither the death of the deceased nor his identity were proved sufficiently. He made reference to the case of Saidi· Matula v R (1995) TLR 3. On ground No.2 Mr. Rugaimukamu submitted that there was no evidence of the deceased's death. The deceased was alleged to have died in September 1998 but was seen in November 1998. His death was not reported to any authority. He further stated that the appellants retracted their confessions. The first appellant stated that he was threatened and 7 beaten by the police and was threatened with more violence if he refused to sign the confession. The ·second appellant proceeded to make a statement before the Justice of the Peace despite the fact that, he found fresh wounds on her hands and face. She too alleged torture. The Justice of the . Peace was a member of the opposite sex who could not perform a proper body search in order to confirm if there were more injuries. Mr. Rugaimukamu also further submitted that paragraph 5 of the relevant form was not completed by the Justice of the Peace and no explanation was given. The information required on that paragraph was wheth_er the 2nd appellant had anything to say. Moreover the said Ju~tice of the Peace had been interdicted. The second appellant also alleged to have been tortured by members of the Sungusungu. He argued that where there was an allegation of torture the trial court should consider the evidence which great caution. He stated that the trial court failed to do so.