20120625 TZCA Mtwara

' I IN THE COURT OF APPEAL OF TANZANIA ATMTWARA CRIMINAL APPEAL NO. 205 OF 2010 (CORAM: OTHMAN, C.J., MBAROUK, J.A., And BWANA, J.A.) SALUM SAID KANDURU .•••••••••••••••••.•••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mtwara) {Mipawa, J.) dated the 28th day of lune, 2010 in Criminal Session No 27 of 2007 JUDGMENT OF THE COURT 22nd & 27th June, 2012 MBAROUK, J.A.: The appellant Salum Said Kanduru and three others were charged with the offence of murder contrary to section 196 of the Penal Code Cap. 16 of the Laws of Tanzania at the High Court of Tanzania at Mtwara. The trial court found only the appellant guilty, hence convicted and sentenced him to suffer death by hanging. 1 ,, ·I {J According to the evidence before the trial court, the case against the appellant was that, on 23 rd November, 2005, the villagers in Makangara Village within the District of Lindi are said to have organized a search of Hadija d/o Hussein (deceased ) who disappeared since she left her home at 12:00 hrs, on 22-11-2005. On 23-11-2005, the villagers managed to find dragging marks whereby they traced and found the deceased's body in the bush. The deceased had a big wound on the head and was tied with a "khanga" in her neck. Besides her body there was found her bucket, gallon, mango, coconut and sandals. The deceased's body was then sent to Sokoine Regional Hospital, Lindi to be medically examined. The autopsy report revealed the cause of death was due to head injury with fracture of right base of the skull and strangulation. There were no eye witnesses to the commission of the crime. However at the trial court, PWl E.5709 Detective Constable Andrew of Rutamba Police Post in Lindi District testified that on 23-11-2005 they received information about the death of the deceased. PWl testified, on 25-11-2005 the villagers arrested Mzee Bosco (one of the acquitted accused) and sent him to the police post. PWl 2 contended that when Mzee Bosco was interrogated at the Police Post, he shifted the blame to the appellant (his step son). PWl further stated that; the appellant was then arrested locked up at Rutamba Police Post before being sent to Lindi Police Station. PW4 8992 Detective Sergent Vedastus testified that on 26-11- 2005, he was on duty at Lindi Police Station as non-commissioned Officer. On that day, he was ordered by the QC-CID Gervas Mitimingi to take a cautioned statement from the appellant and abided to those orders. Having written the cautioned statement, PW4 read over the statement to the appellant and he signed by thumb print. PW4 further contended that he started to interrogate the appellant from 2:40 p.m. and finished at about 4:00 p.m. In his defence, the appellant categorically denied to have committed the offence. He contended that, he was arrested by villagers without any government official from the village. He said, the villagers who arrested him told him that, he was involved in the murder of a person at Makangara village. He further said that, he was then sent to Rutamba Police Post and locked up. At the lock-up, 3 the appellant claimed to have been beaten to the extent that he was unable to walk. When cross-examined by the State Attorney at the trial court the appellant stated that he stayed at Rutamba Police Post for one day and the following day he was sent to Lindi Police Station where his cautioned statement was taken. In this appeal, the appellant was represented by Mr. Michael Ngalo, learned advocate, whereas the respondent Republic was represented by Mr. Peter Ndjike, learned Senior State Attorney. The appellant filed a memorandum of appeal which contained five grounds of appeal but at the hearing, Mr. Ngalo directed his submission mainly on the following grounds:- !. That, the learned trial judge erred in law and fact in finding and holding that the appellant's caution statement was voluntary hence admissible in evidence. 2. That Sections 50 and. 51 of the Criminal Procedure Act were not complied with. 3. That, the learned trial judge erred in law and fact for failing to find and hold that the 4 circumstantial evidence adduced and relied on by the prosecution did not irresistibly and conclusively point to the guilty of the appellant. In support of the first ground of appeal, Mr. Ngalo submitted that the record shows that there were elements of torture inflicted to the appellant at the Rutamba Police Post before he was sent to Lindi Police Station the next day. Mr. Ngalo contended that, PWl testified that the wound inflicted on the appellant's mouth was caused by fracas on the way to Lindi Police Station. Mr. Ngalo maintained that before the appellant 's cautioned statement was taken, torture was used on the appellant. He contended that the record shows that, DW2 testified to the effect that while they were brought at Lindi Police Station from Rutamba Police Post, they were interrogated separately, but thereafter they were sent to Hospital because they were injured. Mr. Ngalo was of the view that the appellant's cautioned statement (Exhibit P3) was not voluntarily taken, hence the same was not admissible in evidence. On his part, Mr. Ndjike submitted that, the cautioned statement was voluntarily made by the appellant notwithstanding the presence 5 of injuries. Mr. Ndjike contended that the trial High Court Judge directed himself properly in his judgment. He was of the view that the injuries may have been inflicted on the appellant at a time when he resisted arrest by the villagers. He then urged us to find that the cautioned statement was voluntarily made, hence, that was sufficient evidence to find the appellant guilty. In support of his view, Mr. Ngalo cited to us the decisions of this Court in the case of H. l. Kamenyena V. Republic [1992] T. L. R. 106 and Umalo Musa V. Republic, Criminal Appeal No. 150 of 2005 (unreported). According to the evidence on record, we agree with Mr. Ngalo that the element of assault appeared therein. The record shows at page 21 that PWl testified to the following effect:- ''a wound is caused either by an assault or an accident etc. may be the first accused person wound on his mouth was caused by fracas on the way to Lindi Police Station etc'~ This clearly shows that before the appellant made his cautioned statement he had wounds in his body which depict an element of assault. Furthermore, the appellant himself testified to the effect 6 that while he was at Rutamba Police Post before he was sent to Lindi Police Station, where his cautioned statement was made, Corporal Andrew (PWl) and militiaman one Madebe assaulted him. Even DW2 testified to the effect that while they _were at Lindi Police station, they wrote the cautioned statement but thereafter they were sent to Hospital for examination because they were injured. In the case of Jason & Others V. R, Crimanal Appeal No. 79 of 1999 (unreported) this court stated that:- "where an accused claims that he was tortured and is backed by visible marks of injuries it is incumbent upon the trial court to be more cautious in the evaluation and consideration of the cautioned statement, even if its admissibility had not been objected to; and such cautioned statement should be given little if not, no weight at all'~ (Emphasis added). 7 Cumulatively with that evidence, we are inclined to be convinced that the appellant's cautioned. statement was not taken voluntarily, because there was an element of assault. For that reason we find the first ground of appeal with merit. As to the second ground concerning the issue of non compliance with sections 50 and 51 of the Criminal Procedure Act (CPA), Mr. Ngalo briefly and concisely submitted that, the law was violated when the appellant's cautioned statement was taken after the statutory time of eight hours lapsed without any extension of time granted. He contended that, the record shows that the appellant was arrested by villagers on 25-11-2005 and sent to Rutamba Police Post the same day. Thereafter, next day on 26-11- 2005 the appellant was sent to Lindi Police Station where his cautioned statement (Exhibit P3) was taken from 14:44 hrs to 16:00 hours. Mr. Ngalo submitted that, that clearly shows that the eight hours time prescribed in sections 50 and 51 passed without extention of time granted by the court. The effect of such a contravention of those provisions of the law is to expunge the cautioned statement, Mr. Ngalo said. In support of his argument, 8 he cited to us the case of Janta Joseph Komba and three others V. The Republic, Criminal Appeal No. 95 of 2006 and Nyandwi Apolinary V. The Republic, Criminal Appeal No. 178 of 2009 (both unreported). He then urged us to expunge from the record the evidence found in the appellant's cautioned statement (Exhibit P3). On his part Mr. Ndjike from the outset declined to support the appeal. He contended that even if it is true that the statement was taken after eight hours prescribed in sections 50 and 51 of the CPA, but he urged us to invoke section 169 of the CPA and consider exhibit P3 as a properly admitted document. In support of his argument, he cited to us the case of Janta Joseph Komba (supra). The relevant provisions for the purpose of determining time available for interviewing suspects are sections 50 and 51 of the CPA which state as follows;- Section 50 states as follows:- (1) For the purpose of this Act, the period available for interviewing a person who is in restraint in respect of an offence is - 9 a) Subject to paragraph (b), 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 of the offence; b) if the basic period available for interviewing the person is extended under section 51, the basic period as so extended. (Emphasis added). If the interviewing has not been completed within four hours kept under section 50 the law allows extension of time under circumstances provided by Section 51 which provides that: (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 the offence, and it appears to the police officer in charge of investigating the offence, for reasonable 10 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 of the original period or that of the extended period, make application to a magistrate for a further extension of the period. (Emphasis added). We are of the considered opinion that the trial court should have considered the fact that the appellant was arrested on 25-11- 2005 but eight hours stipulated under Section 50 and 51 lapsed without extension of time granted. This Court in the case of Morris Agunda and Two others V. The Republic, Criminal Appeal No. 100 of 1995 (unreported) stated that: "... there is no explanation or apparent reason for the alleged confession made after such considerable and unexplained lapse of time is 11 not consistent with the view that the confession was made voluntarily'~ In the instant case, the issue as to whether the statement was made voluntarily appeared hand in hand with the issue of delay in conducting an interview ( cautioned statement). We are of the view that such a delay without compliance with Sections 50 and 51 of the CPA and without plausible explanation as to why there was such a delay is inconsistent with the requirement of the law. Hence, exhibit P3 deserves to be expunged. For that reason, we find the second ground of appeal with merit. As to the third ground of appeal concerning the issue that the circumstantial evidence relied upon by the prosecution did not point to the guilty of the appellant, Mr. Ngalo submitted that there is no eye witness who clearly saw the appellant killing the deceased. He discredited all the prosecution witnesses to the effect that their evidence was hearsay. They all testified that they heard from another source. There is no direct or circumstantial evidence which relate that the appellant killed the deceased, Mr. Ngalo added. For 12 that reason, he urged us to find that there was no sufficient evidence to find the appellant guilty. On his part, Mr. Ndjike briefly submitted that the appellant's conduct of not attending to the funeral of the deceased implicated the appellant that he killed the deceased. With respect, we do not agree with Mr. Ndjike that the conduct of the appellant for not attending the deceased funeral was an incriminating act. It has to be borne in mind that the burden of proving a case is upon the prosecution and not the defence. We agree with Mr. Ngalo that the prosecution witnesses adduced mere hearsay evidence. We also agree with him that there is no direct evidence which implicates or connects the appellant with the offence against him. For those reasons, we find that the prosecution failed to prove their case against the appellant to the required standard of proof. In the event, we allow the appeal, quash conviction and set aside the sentence. Hence, the appellant to be released forthwith form prison unless otherwise he is lawfully held. 13 It. is so ordered. DATED at MTWARA this day of 25th June, '2012. M.C.OTHMAN CHIEF JUSTICE M.S.MBAROUK JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL MB.M. DEPUTY REGISTRAR 14