20121205 TZCA Iringa

I c,.,. /-i u -;, rr,V'"~!) Si !7 1 c-TY? tr' 1- ·' r/1r-r'·/ ~/'L tf-N'-J Cc r? J~o c f 1/ IN THE COURT OF APPEAL OF TANZANIA AT IRINGA CRIMINAL APPEAL NO. 283 OF 2009 CORAM: KILEO, J.A .. MJASIRI,J.A. And MUSSA, J.A. PAMBANO MFILINGE .................................... ~···················•·········• APPELLANT VERSUS THE REPUBLIC ... -. ..-. ................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Mkuye. J.) dated 21 th day of August,2008 in Criminal Session No. 48 of 2008 JUDGMENT OF THE COURT 4 th & 6 th December, 2012 MUSSA. J.A: The appellant was arraigned for murder, contrary to section 196 of the Penal Code. The information laid before the trial court alleged that on or about the 22 nd day of March 2007, at Lupembe Lwasenga Village, within the District and Region of Iringa, the appellant murdered a certain Benedicto Mfilinge. Sitting at Iringa, the High Court (Mkuye, J.) found the appellant guilty as charged, whereupon he was sentenced to suffer death by hanging. He is aggrieved and, presently, seeks to impugn the verdict ! .J upon a memorandum comprised of three points of grievance. First and foremost, we propose to reflect on the factual background, albeit,briefly. Throughout the length and breadth of the trial, it was common ground that both the appellant and the deceased used to reside at the referred Lupembe-Lwasenga Village. From a total of five witnesses, along with three documentary exhibits, the prosecution version was to the effect that on the 22 nd March 2007; the deceased visited, for routine inspection, his cattle kraal situate at a locality known as "Mahameni". He was joined there by his grandson-cum-herdsman, namely, Abril Lyelu (PWl). Having accomplished the exercise, the two of them took different directions as they walked towards their respective homes. Just as they were parting ways, Abril saw the appellant. According to him, the appellant was heading towards the same direction taken by the deceased and was carrying a club and machete in his hands. Evidence was further to the effect that the deceased did not return home on that day and the detail about his non-showing was relayed to his 2 wife, namely, Zavaria Nzwanga (PW2). Zavaria was then attending the funeral of her cousin at a different village but, having been informed of the disappearance of her husband, she went straight home. As she later walked towards the house of a ten cell leader to seek help, Zavaria bumped into the slain body of her husband. The deceased had a cut wound on the head and was lying close to a pedestrian pathway, just about thirty paces from his house of residence. Upon a post-mortem examination, the cause of death was attributed to severe bleeding and brain damage, secondary to a francture of the left temporal region (exhibit P2). A good deal later, on the 28 th March, five suspects, inclusive the appellant, were apprehended by the village authority in connection with the homicide. According to the investigation officer, namely, detective constable Godfrey Mkude (PW3) all the suspects were taken into police custody but; apparently, it was the appellant alone who was eventually arraigned. On the 30th March, 2007; whilst in Police custody, the appellant made a cautioned statement in which he, purportedly, confessed to having killed the deceased. The record of the cautioned statement was adduced 3 ,. into evidence (exhibit P3) in the wake of a clearance through a trial-within- trial. In his reply to the foregoing prosecution damnation, the appellant was upbeat in his complete disassociation from the accusation. According to him, Abril's telling about seeing him trailing behind the deceased was sheer concoction; just as was the detail about him being armed with a club and machete. The appellant said he was arrested by fourteen militiamen on the 28th March, following which he was subjected to untold beatings. In the last straw, whilst in police custody, he was forced into signing the cautioned statement. On the whole of the evidence, the trial judge was wide awake of the fact that the case for the prosecution was, in the main, comprised of circumstantial evidence. Nonetheless, she linked the strands of circumstantial evidence with the cautioned statement to ground the conviction. As already hinted, the appellant seeks to impugn the verdict upon three grounds of which we reproduce:- 4 1. That the trial judge erred in fact and law in convicting the appellant of the offence of murder while the prosecution did not prove its case beyond reasonable doubt 2. That the trial judge erred in fact in holding that the repudiated confession was voluntarily made. 3. That the trial judge erred in fact for in influencing the assessors during the summing up to assessors At the hearing before us the grounds of appeal were canvassed by Mr. Onesmo Francis, learned counsel for the appellant. For the respondent Republic, Mr. Maurice Mwamwenda, learned Senior State Attorney, did not oppose the appeal. One of the points raised by both counsels was that the cautioned statement was illegally extracted, that is, beyond the period prescribed under section 50 of the Criminal Procedure Act. It should be recalled that, whereas, the appellant was restrained into police custody on the 28th March, 2007, the cautioned statement was extracted, a good deal later, on the 30th March. Incidentally, the complaint with respect to the time of the extraction of the cautioned statement was raised during the trial against which the trial judge made the following response:- 5 ''In this case section 50 of the Criminal Procedure Act was not abided to clearly, the cautioned statement was taken in contravention of section 50 of the Act in that it was taken long after 4 hours had lapsed. However, I am looking at the caution statement itself. It contains information which is relevant to the fact in issue. In other word~ it goes to the root of the issue in question. The way it i~ it cannot be said that failure by PW4 to comply with the provisions of section 50 of the Criminal Procedure Act and lack of certificate amounted to an irregularity which goes to the root of the matter so as to invalidate the caution statement in question. What was contravened was procedural matter which does not affect the weight to the substance in the caution statement ....... " With respect, there is more to the non-compliance than just a mere procedural deviation. The period available for custodial interviews by the 6 police is regulated under sections 50 and 51 of the Criminal Procedure Act from which we extract the relevant portions:- ''50 - (i) For the purpose of this Act the period available for interviewing a person who is in restraint in respect of an offence is- (a) subject to paragraph (6) the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence; (b) if the basic period available for interviewing the person is extended under section 51, the basic period as extended ........ . 51 - (1) Where a person is in lawful custody in respect of an offence during the basic period available for interviewing a person, but has not been charged with an offence, and it appears to the police officer in charge of investigating the offence, 7 for reasonable cause, that it is necessary that the person be further interviewed, he may- (a) extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; or (b) either before the expiration ofthe original period or that of the extended period, make application to a magistrate for further extension of that period'~ Upon numerous occasions, this court has been confronted with situations similar to the one at hand. (See the unreported decisions of the court in Criminal Appeal No. 278 of 2008 - Emilian Aidan Fungo @ Alex and another v R; Criminal Appeal No. 51 of 2010 - Mussa Mustapha Kusa and another v R; Criminal Appeal No. 126 of 2011 - Hamisi Juma @ Nyambanga and others v R; Criminal Appeal No. 261 of 2011 - Majuli Longo and another v R). In all these decisions the court held that the non - compliance vitiated the particular cautioned statement. To this end, we are left with no other option than to expunge the cautioned statement from the record. Learned Senior State Attorney conceded, and we entirely subscribe, that without the cautioned statement, 8 .:J ' i the remainder strand of circumstantial evidence is insufficient to uphold the conviction. Consequently, we allow this appeal quash the conviction, set aside the sentence with an order for the appellant's immediate release from custody unless he be held there for some other lawful cause. DATED at IRINGA this 5th day of December, 2012. E.A. KILEO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL COUR 9