republic vs daudi frednandos rasta another 2013 tzhc 2107 11 march 2013

IN THE RM'S COURT OF TANGA AT TANGA (EXTENDED JURISDICTION) P.C. MKEHA-SRM CRIMINAL SESSION NO. 5 OF 2013 THE REPUBLIC VERSUS DAUDI FREDNANDOS @ RASTA AND ANOTHER DATE OF LAST ORDER: 08/03/2013 DATE OF JUDGEMENT: 11/03/2013 JUDGEMENT Daudi Frednandos alias Rasta and Bakari Abdullah alias Boka are before this court charged with an offence of murder c/s 196 of the Penal Code. Upon the charge being read to them, each pleaded not guilty to the charge. During the preliminary hearing it was agreed and consequently established that the deceased in this case is indeed dead, that, the l / accused persons and the deceased knew each other, that, the deceased's body was discovered (buried) in his own farm, that, the cause of death is as stated in Exh. P2 i.e. the Report on Post - Mortem Examination and that, the accused persons were arrested and charged with the offence of murder. The-sketch map of the scene of the incident was also not in dispute. There remained a task upon the prosecution to prove that the deceased's death was not natural, that, the death resulted from the conducts or omissions of the accused persons and that the accused persons caused the said death intentionally or that the accused persons had an intention of causing serious bodily harm to the deceased. In view of proving its case against the accused persons, the prosecution examined four (4) witnesses before this court. Out of the four witnesses, the prosecution case depends to a large extent, on a cautioned statement of the 1st accused which he gave to PW1 (D/CPL YONGO). The cautioned statement implicates the 1st accused 2 and extends to implicating the 2nd accused as well. According to PW1, in the said cautioned statement, which he took in compliance with relevant laws, the 1st accused had told him the following story: That, on 15/10/2010 at about 16:00 hours the 1st accused was at the deceased's farm where he was residing. They were cooking. After a short while, the 2nd accused one Shabani Boka arrived at that place. Shabani Boka came in view of taking his radio which he had given to the deceased as a security for a loan of Tshs. 3000/= he had from the deceased. The 2nd accused demanded his radio from the deceased. The deceased refused to give back the security to the 2nd accused before payment of the debt in full. The 2nd accused left the place temporarily. At about 18:00 hours, the 2nd accused returned at the place of residence of the deceased and the 1st accused i.e. at the deceased's hut inside the deceased's farm. At this second time, the 2nd accused came with another person unknown to the 1st accused. Once again the 2nd accused demanded back his radio from the deceased. The deceased refused giving the radio to the 2nd accused for failure to pay, the debt. The 2nd accused became furious and 3 took a huge stone which he thrown to the deceased's head. The deceased fell down. The other person who accompanied the 2nd accused took the same stone and thrown it again to the deceased's chest. The deceased died instantly. According to PW1, after the deceased had died, the 2nd accused and his colleague persuaded the 1st accused to assist them taking the deceased's body for burial inside the deceased's farm. The 1st accused agreed. At first, the three persons kept the deceased's body inside the latter's farm. They left for Magunga village to one woman known by the name of Mama Asha. They had a drinking session which lasted to 00:00 hours. At midnight, they returned at the place where they had kept the deceased's body. They buried it inside the deceased's farm. They then went to the 2nd accused's home where they slept. The next day, the 1st accused returned to the deceased's farm and continued farming. PW1 further stated that, when the deceased's relatives came to ask for the where abouts of the deceased, the 1st accused told them that the deceased had gone at Mgwe village to look for his traps. The 1st accused feared telling the truth for fear of being killed. According to PW1, the 1st accused told him that he did not kill but 4 assisted in secretly burying the deceased. PW1 stated that, after he had taken the 1st accused's cautioned statement, he read it over to the 1st accused. The first accused, who was an illiterate, signed the statement to acknowledge that the same had been correctly taken. PW1 recorded the first accused's statement from 21:00 hours to 23:00 hours. When Mr. Kibwana sought to tender the said statement as an exhibit for the prosecution, Mr. Kajembe, learned advocate for the 1st accused objected. In so objecting, the learned advocate stated that, it was not certain as to what exact time the recording officer ended his recoding. He added that, it was not even certain that the finger print which appeared as a signature to the said cautioned statement was the accused's or not. Following that objection, assessors were withdrawn from proceedings. A trial within trial was then conducted. Contrary to what Mr. Kajembe had told this court, the original statement of the 1st accused, indicated, with PWl's own handwriting, that, the interview started at 21:00 hours and ended at 23:00 hours. The 1st accused admitted during trial within trial that he is an illiterate 5 and further that, he signed the statement he had given to FW1 with his own fingerprint. It was the very fingerprint which appeared to the said cautioned statement, The 1st accused renounced having been tortured by PW1 as he was giving his statement. The 1st accused admitted correctness of almost everything contained in- his cautioned statement. I therefore found that the cautioned statement had been voluntarily given by the 1st accused to PW1. I held the same to be admissible. The same was admitted as Exh. P4. Substantially, that is the evidence upon which the prosecution case rests. In addition however, there is also the testimony of PW3 (Severin Israel). This witness happened to be the deceased's grandson. This was one of the deceased's relatives to whom the 1st accused lied about the where abouts of the deceased. The 1st accused had told this witness and one Mr. Heko (not in a witness in this case) that, the deceased had gone at Mgwe village to look for his traps something which was not true. This witness also told this court that, the 1st accused had later on told them that, it was the 2nd accused and 6 another person who had killed the deceased using a stone. The witness also told this court that, it was the 1st accused who shown to them the place where the stone had been hidden i.e. between banana plants. According to this witness, the 1st accused had also admitted to have secretly participated in the act of burying the deceased in his own farm. The testimony of PW4 (D/CPL TAMIMU) was not different from that of PW1. He told this court that, the 1st accused had given to him a statement which implicated him (the 1st accused). The statement also implicated the 2nd accused to be the actual killer. According to this witness, the statement of the 1st accused was somehow exculpatory as he at all times pointed to the 2nd accused to be the actual killer. The 1st accused defended himself on oath. He was being led by his advocate, Mr. Kajembe. The 1st accused put up the defence of complete denial. He completely disputed the contents of the statement which the prosecution relied upon in proving its case. He also stated that, upon his apprehension he was severely beaten. That is when he raised an alarm to seek an aid from his neighbour Boka, the 2nd accused. He denied having ever associated the 2nd accused with the death of the deceased. The 1st accused stated that, when exhumation was done he was unable to identify the human body which they found to have been buried inside the deceased's farm. The 1st accused stated further that, it was not true that he gave his statement to CPL Yongo. He also stated that, neither did he say that he saw the 2nd accused killing the deceased. Mr. Mlawa, learned advocate, led the 2nd accused to make his defence. In his defence, the 2nd accused denied having killed the deceased. The 2nd accused stated that, the 1st accused had told this court that he merely mentioned him so as to seek assistance. He said that, none of the prosecution witnesses had associated him with the killing of the deceased. In their final addresses, the prosecution was of the view that the case against the two accused has sufficiently been proved. Mr. Mfinanga, Learned State Attorney told this court that the prosecution had managed to prove occurrence of an unnatural death to the deceased. According to the Learned State Attorney, the Report on Post Mortem Examination proved that fact. He also submitted that, the prosecution had managed to prove that it was the 1st and 2nd accused persons who killed the deceased. He referred this court to the Cautioned Statement of the 1st accused i.e. Exh. P4. The Learned State Attorney went one to submit that, the prosecution had managed to prove malice aforethought on part of the accused persons. On this aspect, the Learned State Attorney stated that, there was evidence that the 2nd accused thrown a stone to the deceased in the presence of the 1st accused. After the deceased had died, the two persons secretly buried the body of the deceased. The Learned State Attorney invited me to invoke the doctrine of common intention and thereby find the two accused persons equally liable for the deceased's death. t The Learned State Attorney further submitted on the contradictions ♦ regarding the arrest of the accused persons. He referred this court to the testimonies of PW3 and PW4. He urged this court to find that, the contradictions were not fatal to the prosecution's case. On this aspect, the Learned State Attorney referred this court to the decision in Mohamed Said Matula v. Republic (1995) TLR 3. In that case, it was held that, where the testimonies by witnesses contain inconsistencies and contradictions the court has the duty to address the inconsistencies and try to solve them where possible as the court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter. According to the Learned State Attorney, the contradictions to the prosecution's case were minor hence they should not affect the prosecution case. It will be recalled that, PW3 had told this court that, after he had reported to the Police Station on something he had doubt with inside the deceased's farm, he went to the deceased's farm where he found the 1st accused. PW3 and other people apprehended the 1st accused and put him under arrest. They together moved to a certain terrace which appeared to be new inside the deceased's farm. The said 10 terrace turned out to be the very place where the deceased had been buried. It was from that time when the 1st accused started narrating the story, regarding the deceased's death, his participation in the killing and the participation of the 2nd accused. On the other hand, PW4 (CPL TAMIMU) had told this court that upon receipt of information regarding the deceased's death, he went at Hale Police Station. He found the 1st accused in remand. The 1st accused narrated to him a story which enabled the police to know the place where the 1st and the 2nd accused had buried the deceased after they had killed him. It was also the Learned State Attorney's submission that, the lies of the 1st accused to the deceased's relatives, as to the where abouts of the deceased, when taken together with other evidence available in this case, go to the extent of proving the guilt of the 1st accused. He referred this court to the case of Paschal Mwita v. Republic (1993) TLR 295. The Learned State Attorney added that, in the case of Magendo Paul and another v. Republic (1993) TLR 219 it was held that, if the evidence is so strong against an accused ii person as to leave only a remote possibility in his favour which can easily be dismissed the case is proved beyond reasonable doubt. He urged this court to find both accused guilty as charged. Mr. Kajembe for- the 1st accused started by attacking the charge sheet by submitting that, the same was silent as to whether the accused persons are jointly charged or not. He went on to submit that, the evidence of the prosecution did not directly point to the 1st accused to be the person who killed the deceased. According to the learned advocate, the prosecution relies its case on a cautioned statement which the 1st accused disputes. According to the Learned Advocate, in terms of section 23 of the Penal code it was necessary for the prosecution to establish common intention on part of the two accused persons. According to the learned advocate, the prosecution lacks that evidence. The learned advocate stated that the prosecution merely points to the mere presence of the 1st accused at the scene of the incident. The prosecution also alleges that, the 1st accused took part in burying the deceased. The learned advocate referred this court to the case of Jackson Mwakatobe & Two 12 Others (1990) TLR 17 where it was held that, a mere presence of the accused at the scene of the crime was not sufficient to invoke the doctrine of common intention and so to implicate him of murder. The Learned Advocate went on to submit that, the prosecution case depends on circumstantial evidence which is not corroborated. According to the learned advocate, the evidence relied upon does not suffice to lead to the conviction of the 1st accused. He referred this court to the decision in the case of Hamidu Musa Timotheo and Majid Musa Timotheo v. Rep. (1993) TLR 125. Where it was held that, in order for the court to convict the accused only relying on circumstancial evidence the chain of that evidence linking the accused with the offence they stand charged must be unbroken and leads to no other conclusion but that the accused are responsible for the death of the deceased. According to the learned advocate, the evidence against the 1st accused lacks the necessary link. It was part of the learned advocate's submission that, it was necessary for the prosecution to examine the physician who had examined the deceased's body. The learned advocate remarked that, there was a contradiction between what appeared on the Report on Post Mortem 13 Examination and testimonies of other prosecution witnesses. The ♦ learned advocate went on to submit that, there was no malice aforethought on part of his client i.e. the 1st accused. The prosecution did not tell this court how best would have the 1st accused prevented the killing. The learned advocate warned against relying on the 1st accused's statement as the prosecution had found him unreliable. On part of the 2nd accused Mr. Mlawa, learned advocate submitted that, the 2nd accused's arraignment was because of the 1st accused's statement. The only evidence implicating the 2nd accused is the cautioned statement of the 1st accused. Mr Mlawa submitted that the prosecution's evidence was not enough to lead to the conviction of the 2nd accused. According to Mr. Mlawa section 33 of the Evidence Act warns against relying on evidence of an accomplice to convict another person. He referred this court to the decision in the case of Mbata V. Republic (2010) 1 EA 241. In that case, the case of Tuwamoi v. Uganda was cited with approval. Mr. Mlawa concluded his argument by saying that; in any case, the 1st accused's 14 cautioned statement required corroboration which was lacking. According to Mr. Mlawa admission of the Report on Post Mortem Examination and the stone can not be taken to have corroborated the testimony of PW1. As to circumstancial evidence, Mr. Mlawa was of the view that,- the same was lacking in the instant case. He referred this court to the decision in the case of Mnyere v. Republic (2010) 2 EA 315 where it was held that, where two views are possible, one pointing to the guilt of the accused and another pointing to the innocence of the accused, the court should adopt that of innocence of the accused. He also referred this court to the decision of the court of Appeal in the case of Nathaniel Alphonce Mapunda v. Republic (2006) TLR 397. It was held in that case that, being found with the deceased's body may not necessarily mean that the accused is guilty. According to Mr. Mlawa, the most important thing was for the prosecution to prove that the two accused persons really killed the deceased. Mr. Mlawa was of the view that, that has not been done. He urged this court to make a finding that the 2nd accused is not guilty. 15 In reply, Mr. Kibwana submitted for the Republic that the charge sheet was not defective for mere lacking of the words jointly and together. It was not mandatory that the words should be there. He referred this court to section 136 of the Criminal Procedure Act. According to Mr. Kibwana, the words are implied to be there by virtue of section 136 of the Criminal Procedure Act. I respectfully buy the Learned State Attorney's argument and thereby hold that the charge sheet is not defective. As to the Report on Post Mortem Examination, Mr. Kibwana referred this court to the wording of section 192 (4) of the Criminal Procedure Act. It was his view that, the contents of that particular document had been proved on the preliminary hearing date. Mr. Kibwana further submitted that, it was not necessary for the prosecution to show that there was a concerted agreement between the two accused. He referred this court to the case of Wanjiro Waimath V.R. (1955) EACA 116 and Godfrey James Ihuya v. Republic (1980) TLR 197. He finally told this court that the prosecution case had as well been fully established through testimonies of PW3 16 and PW4 to whom the 1st accused had narrated the story regarding the deceased's death. I summed up the case to the assessors. In so summing up, I told them the legal position with regard to the doctrine of common intention, evidential value of evidence of an accomplice and all what the prosecution has to do if its case depends on circumstancial evidence. All the assessors advised that, the case against both accused has been fully established. They advised that, both accused persons be convicted as charged. The turn is now mine, to evaluate the evidence, to find out which facts are established, apply the law and thereby come to a decision in this case. In deciding the case before me I start with the second accused person. It is true as rightly submitted by Mr. Mlawa, learned advocate for the 2nd accused that, the only evidence implicating the 2nd accused is the cautioned statement of the 1st accused. If there is anything more, is the testimony of PW3 and that of PW4. All what these two witnesses said as against the 2nd accused emanated from 17 the mouth of the 1st accused. PW3 told this court that, it was the 1st accused who told them that, the 2nd accused killed the deceased. PW4 too, told this court that, it was the 1st accused who told him that, the 2nd accused had killed the deceased. The two testimonies therefore can not be taken to have corroborated the repudiated confession of the 1st accused. Corroboration should be sought from an independent source and not the very words of the 1st accused contained in his repudiated confession not even in his testimony in court. Mr. Mlawa for the 2nd accused referred this court to the provisions of section 33 of the Tanzania Evidence Act. I here under reproduce the relevant parts of the said section: Section 33 (1) When two or more persons are being tried jointly for the same offence or for different offences arising out of the same transaction, and a confession of the offence or offences charged made by one of those persons affecting himself and some other o f those persons is proved, the court may take that confession into consideration against that person. 18 (2) Notwithstanding subsection (1), a conviction o f an accused person shall not be based solely on a confession by a co- accused. What does the above cited section mean? To be abie to answer that question, I am forced to travel back into what I would call antiquity for assistance. It has long been an established rule of practice in East Africa, including this country, that a repudiated confession though as a matter of law may support a conviction, generally requires as a matter of prudence corroboration especially when it is a confession of an accused person, implicating himself and his co- accused. In Wilbald s/o Tibanyendela v. Rex 15 E.A.C.A at page. 117 the Court of Appeal for Eastern Africa, in a case originating from Tanganyika, stated as follows: When therefore an accused person has made an exculpatory statement at an early date, evidence of that statement ought to be given in court. It is o f course only evidence in favour o f the maker, and can not be used as evidence against anybody else, 19 4 but as evidence in favour of the maker it wiii sometimes carry a good deal o f weight with a trial court. In Mali Kiza s/o Lusota v. Rex 8 E.A.C.A at page 26 the rule was re-stated in the case originating from Uganda. It was stated that:- As to this we would observe that the confession in this case could never be used against the appellant's co-accused for the reason that the maker o f the confession (which as we have said was not a confession o f murder) not only exculpated himself but threw the whole blame for the death o f Biasio on one o f his co- accused. In Republic v. Ndambia wa Wanduru (1937) 4 E.A.C.A. 27 it was held that: As to the question o f motive, even if the court is to accept that soon after the adultery incident relations between Cheiewa and the deceased got strained, however strong a motive is proved it is unsafe to convict on the evidence o f an approver unless 20 there is corroboration connecting or tending to connect the particular accused with the crime itself. In Anyuma s/o Omolo and Another v. Republic (1953) 20, EACA 218, Gopa s/o Gidamebanya and others v. Rep (1953) 20 EACA 318 and in Anyangu and Others v. Rep (1968) EA 239 it was held that: A statement which does not amount to a confession is only evidence against the maker. I f it is a confession and implicates a co-accused it may, in a joint trial, be taken into consideration against that co­ accused. It is however, not only accomplice evidence but evidence of the weakest kind and can only be used as lending assurance to other evidence against the co-accused. In Anyangu V.R (1968) E.A 299 it was held that, An exculpatory statement is only evidence against the maker and can not be used against his co- accused. It will be recalled that when PW4 was asked as to why the 1st accused was not taken to a justice 21 of peace, the response was that, the statement of the 1st accused was in a way exculpatory. The case of Tuwamoi v. Uganda (1967) E.A at page 91 talks at length about the evidential. value of a repudiated or retracted confession. I hereunder reproduce the relevant words:- The prosecution must first prove that this confession has been property and legally made. The main essential for the validity o f a confession is that it is voluntary, but the other legal requirements o f each territory must also be established. I f the court is satisfied that the statement is properly admissible and so admits it, then when the court is arriving at its judgment it will consider all the evidence before it and all the circumstances of the case, and In doing so will consider the weight to be placed on any confession that has been admitted. In assessing a confession the main consideration at this stage will be, is it true? And if the confession is the only evidence against an accused then the court must decide whether the accused has correctly related what happened and whether the statement 22 establishes his guilt with that degree of certainty required in a criminal case. This applies to all confessions whether they ha ve been retracted, repudiated or admitted, but when an accused person denies or retracts his statement at the trial then this is a part o f the circumstances of the case which the court must consider in deciding whether the confession is true. The Legislatures in these countries have recognized the very danger that exists o f confessions being improperly obtained or indeed of being deliberately falsified and have laid down the standard required and the various safeguards applicable. The courts have also been alive to this danger and have by numerous decisions over the years stressed the caution to be exercised by trial courts and it is from these decisions that the present rule o f practice or prudence has evolved. But this rule does no more than stress the care with which a court should act in dealing with a confession. We would summarise the position thus - a trial court should accept any confession which has been retracted or repudiated with caution and must before founding a conviction on such a confession be fully satisfied in 23 4 all the circumstances o f the case that the confession is true. The same standard o f proof is required in all cases and usually a court will only act on the confession if corroborated In some material particular by independent evidence accepted by the court. But corroboration is not necessary in law and court may act on a confession alone if it is fully satisfied after considering all the material points and surrounding circumstances that the confession can not but be true. The trend indicates that even after the decision in Tuwamoi v. Uganda (Supra), for a confession like that of the 1st accused to be acted upon, so as to base a conviction of a co- accused on it, the same should be corroborated. In Republic v. Kusenta Cheligaa and Another (1978) LRT No. 11 it was held that, As to their defences in which they also Implicate the third accused; their evidence is that o f accomplices. Such evidence, needed, as a matter o f practice, corroboration before it Is acted upon to convict Chilewa with the offence. There was no corroboration because one accomplice can not corroborate another accomplice. Again, in Ali 24 Salehe Msutu v. Republic (1980) TLR 1 the Court of Appeal held that: The exculpatory statements made by the second and third accused can not be treated as evidence corroborating the repudiated confession o f the first accused. Therefore, I find that Mr. Mlawa's submission that a conviction of the 2nd accused can not be based solely on a confession of the 1st accused is meritorious. It deserves being upheld and I hereby uphold it. The prosecution had invited this court to invoke the doctrine of common intention and thereby convict both accused as charged. Before the doctrine can be invoked there should be: (i) Two or more accused persons; (ii) They must have a common intention to prosecute unlawful purpose with one another and