20140701 TZCA Iringa1

IN THE COURT OF APPEAL OF TANZANIA ATIRINGA CORAM: MSOFFE. J.A.. KAI3AGE. 3.A.. And MMILLA. 3.A. CRIMINAL APPEAL NO. 84 OF 2014 (1) VUMILIA SANGA 1 ..............................APPELLANTS (2) MASHAKA IBRAHIM MUHUNDO i VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Mkuve, 3.) dated 9th July, 2012 in Criminal Sessions Case No. 9 of 2011. 3UDGMENT OF THE COURT 13th June, & 1st July, 2014 MMILLA. J.A.: The appellants, Vumilia s/o Sanga and Mashaka s/o Ibrahim Muhundo (the first and second appellants, respectively), were jointly and together arraigned before the High Court at Iringa to answer a charge of murder c/s 196 of the Penal Code Cap 16 of the Revised Edition, 2002. On conviction, both of them were sentenced to death. That decision aggrieved them, hence the present appeal which is against both conviction and sentence. The facts of the case were not complicated. They portrayed that the deceased, Karim Constantino Kilamulilo was, before his death living at Mgela village with his brother-inlaw, one Rayzek Mkongomasi (PW2). On 17.10.2009 at about 14.00 hours, the deceased informed PW2 that he was going to Mfyome village to sell tomatoes. He carried the crated tomatoes on a bicycle. Unfortunately, he did not return home early as was expected, a fact which urged PW2 to go about looking for him in Mfyome village. On arrival at Mfyome village, PW2 went first to his friend one Norbert Kaheya (PW3) from whom he inquired if he saw the deceased. PW3 declined to have seen him. The two went around the village looking for the deceased but without success. News about the deceased's disappearance circulated to several other persons in the surrounding communities. Intensive search was launched. At around 23.00 hours on that same day, the people from Mlangali hamlet chanced to see the bicycle tyre marks at Milimamiwili area leading into a certain farm and they followed them. The bicycle tyre marks took them to the hut in the farm of the first appellant, through to a gulley nearby at which they saw the body of the deceased. Upon that discovery, the search team relayed information to the leadership of the Mgela and Mfyome villages. Since the incident occurred in Mfyome administrative area, at around 2.00 hours (on 18.10.2009) they were taken to the Village Executive Officer (VEO) of that village one Thomas Mhapa (PW1). Upon information to him that they were looking for Vumilia Sanga and Mashaka Muhundo on suspicion that they killed the deceased, he and that team started tracing the suspects. They succeeded to find the first appellant at his house. They then proceeded to the home of the second appellant whom they missed, but found his "wife" one Sophia d/o Mbena (PW4) who, after interrogation told them that the second appellant was not there, but that he buried the gun he carried when he went to her house in the bamboo bush near the house and she showed them that place. They recovered the said gun, a muzzle loader, which they took away with them. From there, taking the first appellant with them, the team proceeded to the scene of crime at which the former told them that the second appellant killed the deceased and asked him to carry the body to a gulley at which they ditched it. From there, the search team returned to the village. They informed the police who went there and picked up the first appellant for their further actions. On arrival at police station, the first appellant was interrogated by PW5 No. D 6881 D/CPL Matson who subsequently recorded his cautioned statement. The first appellant was alleged to have told PW5 that the second appellant shot the deceased with a muzzle loader (gobore) near his shamba, killing the latter instantly. He also told him that thereafter they carried the dead body for a distance of about 120 metres and abandoned it in the gulley, and that they hid the deceased's bicycle in the bush near the hut. He was similarly taken before PW6 Aziza Shaban Lutala, the justice of peace before whom he offered an extra-judicial statement in which he repeated the same story that he and the second appellant killed the deceased. Both statements were tendered and admitted in court as evidence without any objections. While the cautioned statement was marked exhibit P2, the extra judicial statement was marked exhibit P5. The second appellant was subsequently arrested as well. He was interrogated by PW5 and offered a cautioned statement in which, like the first appellant, he admitted that he and first the appellant killed the deceased and ditched his body in a gulley near the shamba at which they were working. He was taken before PW7 Elinusia Reuben, the justice of the peace before whom he offered an extra-judicial statement in which he changed his story that it was the first appellant who killed the deceased and threw his dead body in a gulley near the shamba at which they were resting. The said cautioned and extra-judicial statements were tendered and admitted in court as evidence without any objections. The cautioned statement was marked exhibit P3 while the extra judicial statement was marked exhibit P6. In their defences before the trial High Court, the first appellant retraeted-both-the eautioned-and-extra-judicial statements'alleging that they were not voluntary, while the second appellant retracted his cautioned statement on a similar ground, but owned the contents of the extra-judicial statement. Both of them maintained that they were not involved in the death of the deceased. After a full trial, the High Court was satisfied, after considering both the prosecution and the defence evidence, that the appellants' respective cautioned and extra judicial statements were voluntary and that those statements were sufficiently corroborated by the evidence of the prosecution witnesses. It concluded that the prosecution had proved its case against them beyond reasonable doubt and that they were guilty as charged. Before us, the appellants were represented by Mr. Justinian Mushokorwa, learned advocate, while the respondent Republic was represented by Mr. Abel Mwandalama, learned State Attorney. He hastened to inform the Court that they were supporting conviction and sentence. The memorandum of appeal filed by Mr. Mushokorwa on behalf of the appellants raised four grounds; one that, the trial judge erred by relying on the retracted/ repudiated eautioned statements (Exhibits P2 andP3) and extra judicial statements (Exhibits P5 and P6) of both appellants as constituting confessions and to hold that they were sufficiently corroborated; two that, the trial judge erred to hold that the evidence of PW4 was reliable and offered corroboration to the prosecution case in oblivious of the fact that her evidence was illegally admitted as it was in violation of section 130(3) of the Evidence Act Cap 6 of the Revised Edition, 2002, the witness having been of status akin to a spouse of the second appellant and also having exposed herself as a highly suspect akin to accomplice; three that, the trial judge erred in allowing herself to be influenced and convicted the appellants on the alleged weakness and/ or motive in the defence case; and four that, trial judge erred to ignore the possible defence that either of the appellants 6 may have accidentally shot the deceased while dead drunk hence incapable to calculate/ control his actions at the material time. For reasons which will unfold in the course, we propose to begin with the first and fourth grounds which we believe can conveniently be discussed together. While the first ground touches on reliability or otherwise of statements of the appellants regarded to be confessions, the fourth ground concerns the defenee of accidental killing by reason of having they been drunk. We will briefly restate the law on confessions before we may address the rival arguments of counsel for the parties in that regard. Under our law, the term confession is defined under section 3 (a) to (d) of the Evidence Act to mean:- "(a) words or conduct, or a combination of both words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence; or (b) a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence; or (c) a statement containing an admission of all the ingredients of the offence with which its maker is charged; or (d) a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person making the statement has committed an offence." Simply stated, C o n fe ssio n is criminal suspect's acknowledgement of guilt, usually in writing and often including details about the crime. It is opportune to stress here that reliability or otherwise of a statement regarded to be a confession is based on the assumption that it was voluntarily made. The Court is bound to rule otherwise if it may be convinced that such confession was obtained by torture, threats or promises held out by a person in authority - See Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010, CAT (unreported). In our present case, though we have said they were admitted without any objections, both appellants retracted their respective cautioned and extrajudicial statements in their defences. We wish to begin to consider the 8 reliability or otherwise of the cautioned and extrajudicial statements of the first appellant. To begin with, the first appellant unambiguously admitted in his cautioned statement made before PW5 and in the extrajudicial statement made before PW6 that he and the second appellant killed the deceased. To be particular he said, on seeing the deceased pass near the hut at which they were resting, they ordered him to stop and he obliged. They then directed him to approach to where they were and told him that he was under arrest. Again, he showed no resistance. They asked him to turn around after which the second appellant shot him with a gun and he died on the spot. They then searched his trousers' pockets and recovered T. shs 8,000/= which they took. After that, while the second appellant carried the deceased's body to the gulley at which they abandoned it, he himself handled the deceased's bicycle which they hid in a bush near the hut. It must be emphasized that this narration was consistent in both Exhts. P2 and P5. However, as we have pointed out, he retracted both these statements in his defence. We have passionately considered the reasons he gave to show that those statements were not voluntarily made to both PW5 and PW6. Regarding Exht. P2, the first appellant said that it was recorded in the presence of five police officers, and that they threatened to kill him if he was not prepared to tell them what they wanted. He added that he was actually tortured in that they pressed his testicles with pliers. In view of that he said, he was forced to sign a statement they had themselves written. He similarly said that on the day they took him before PW6, he was forewarned not to change the story lest they could beat him, and that the policeman who escorted him to the chambers of PW6 handed a statement to her which she read before recording exhibit P6. We have considered his account on the point. We are not convinced that his claims were true. As correctly submitted by Mr. Mwandalama, had it been true that he was forced to make those statements we would have expected the advocate who represented him to raise objections at the time those statements were being tendered in court in terms of section 169(1) of the Criminal Procedure Act Cap 20 of the Revised Edition, 2002 (the CPA), especially so when we take into consideration that the contents of Exht. P2 were repeated in almost similar words in Exht. P5 he offered to PW6. Also, we are far from being convinced that the police extended the alleged craft method when he was before PW6 because we believe that he was freer 10 before her than when he was before PW5. We are settled that what he claimed in his defence was an afterthought. In Nyerere Nyague v. Republic (supra), the Court said that where no objection was raised at the time of admitting a document considered to be a confession; such document(s) cannot be successfully challenged at an appellate level. Therefore, we uphold the trial court's finding that Exhts. P2 and P5 were voluntarily made. Looking at those two documents, for all intents and purposes, they qualified to be confessions because the first appellant admitted in terms, without exonerating himself, that he and the second appellant were involved in the death of the deceased. We therefore find that the trial court properly held that it was a confession, consequently that it correctly believed and relied on those two documents. We have similarly considered the cautioned and extra judicial statements in respect of the second appellant. Though they were similarly tendered and admitted in court as evidence without any objections, we have however, found that because the contents in Exht P3 differ from these in Exht. P6, and considering the reasons advanced by Mr. Mushokorwa that he 11 had to say what he said before PW7, the justice of the peace because he was more freer than when he was before PW5 who is a police officer, we should give him a benefit of doubt that perhaps what he said to PW7 could have been on his free will. Given such a situation and guided by what was expressed in Seko Samwel v. Republic [2005] T.L.R. 371, we think the trial High Court ought to have held that the cautioned statement constituted in Exhibit P3 was not voluntary and ought to have discarded it as we accordingly do. This means, remaining to be considered is his extrajudicial statement - Exhibit P6. Given the above stated position, the next question is whether or not the second appellant's extrajudicial statement amounts to a confession. Having said that for a document to be considered as a confession it must admit in terms either an offence or substantially that the person making the statement committed an offence, and since the second appellant's extrajudicial statement constituted in Exhibit P6 does not admit commission of the offence and is exculpatory, ipso facto it does not qualify as a confession. So, it is evidence which is required to be weighed against the rest of the evidence on record. 12 As we have already pointed out, both Exhts P2 and P5 amounted to a confession because apart from incriminating the second appellant, the first appellant did not make any attempts to exonerate himself, but seriously incriminated himself. Thus, in terms of section 33(1) of the Evidence Act., Exhts P2 and P5 constituted good evidence in the case against both of them. Of course, sub-section (2) of section 33 of that same Act qualifies that a conviction o fan accused person shall not be based solely on a confession by a co-accused - See also Adolf Macrin v. Republic, Criminal Appeal No. 249 of 2011, CAT (unreported). Fortunately however, in our present case the evidence contained in Exhibits P2 and P5 was thoroughly corroborated by some other independent evidence from PW1, PW2, PW3 and PW4. PW1, PW2 and PW3 had testified that the first appellant admitted to them while they were at the scene of crime that he and the second appellant were involved in the death of the deceased, and that they killed him by shooting him with a gun subsequent to which they ditched him in the gulley. That evidence was not contradicted by the first appellant. On the other hand, PW4 said that on that particular day at around 10.30 pm the appellants went to her home, and that the second appellant 13 was carrying a gun which he buried in the bamboo bush near her house. When she was followed by several people in the company of PW1 looking for the second appellant/and also asked the whereabouts of the gun, she told them that the second appellant was not there. However, she showed them the spot at which he had buried the gun and they recovered it. In our opinion, the deep wound which was found on the deceased's body"was consistent witlTthe weapon said to have been emproyed in'killing the deceased. Such evidence in our view, clearly corroborated the evidence contained in Exhts P2 and P5 in which as aforesaid, the first appellant said that they killed" the deceased by shooting him with a gun the second appellant buried in a bamboo bush at the surroundings of the house of PW4. As we are aware gun related wounds are usually deep. Thus, the trial court properly held that the evidence of PW1, PW2, PW3 and PW4 afforded corroboration to that contained in exhibits P2 and P5. Mr. Mushokorwa had attacked the trial court in the second ground of appeal for having believed and relied on the evidence of PW4 for two reasons; one that having she been akin to the wife of the second appellant, she was not a competent and compellable witness under section 130 (3) of 14 the Evidence Act; and two that since she was at first arrested by the villagers in connection with the death of the deceased, she was akin to an accomplice. Once again, we agree with Mr. Mwandalama that there was no evidence to attract one to think that PW4 was ever the wife of the second appellant. The reason is clear that neither PW4, nor the appellant himself ever said they were husband and wife. Throughout her testimony, save for hefadmission thafshe lived wittrthe appellanrfor six monthsrshe at no time purported that she was the second appellant's wife. Similarly, the appellant did not claim in his defence that PW4 was his wife. In fact, he was ardent, as reflected on page 57 of the court record, that PW4 was his paramour. Also, at page 56, third paragraph from the top, the second appellant was recorded to have said that he had a wife by the name of Zena Mlowe, and that Sophia Mbena (PW4) wanted to marry him. He said he lived with Sophia for 4 months. In our view, that was sufficient evidence that much as some of the witnesses were mistakenly recorded to have said that PW4 was the wife of the second appellant, in actual fact the two were never husband and wife. As such, PW4 was a competent witness who did not fall under the provisions of section 130 (3) of the Evidence Act. We are also aware of the fact that the villagers had arrested PW4 in connection with that crime along with the first appellant after recovery of the gun at her home, but she was released. She was not even charged along with the appellants. However, be it as it may, in terms of section 142 of the Evidence Act, even where it was to be said she was an accomplice, still her evidence could be relied upon because under that section an accomplice is a competent witness against an accused person; and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Of course, as a matter of practice her evidence could have required corroboration which, in the circumstances of this case corroboration of her evidence is found not only from the evidence of PW1, PW2 and PW3, but also from Exhts. P2 and P5. Given the above position, we are not persuaded that the evidence of P4 was illegally admitted by the trial High Court as maintained by Mr. Mushokorwa, but that that court properly believed and relied on her evidence which we have said corroborated the evidence in Exhibits P2 and P5 to the extent it did. When the evidence we have covered hereinabove is taken into consideration, we can safely say that what the second appellant said in Exhibit P6 portrays falsity and we reject it. This is because what he said in that document is not supported by any other evidence on record. That entails that the submission by Mr. Mushokorwa that the appellants could have killed the deceased by accident following an accidental explosion of the gun on the pretext.oLthey having, been dead drunk is without basis so long as that defence stemmed from exhibit P6. Even, they did not say so in their respective defences before the trial court, thus that bringing that at this stage is mere afterthought. In the circumstances, the first, second, and fourth grounds of appeal lack merits which we accordingly dismiss. We now come to the third ground alleging that the trial judge erred in allowing herself to be influenced and convicted the appellants on the alleged weakness and/ or motive in the defence case. In elaborating the point, Mr. Mushokorwa submitted that the trial court judge wrongly capitalised on minor matters such as her remarks about the first appellant whom she said was confused and that he was not telling the truth, hence unbelievable. Also, Mr. Mushokorwa complained about the trial 17 judge's remark that the second appellant's act of fleeing to Morogoro after the commission of the offence was not consistent with his innocence, similarly his account that the distance from Mtibwa to Morogoro was 50 paces and that he paid a fare of T.shs 1000/=. On the basis of that, Mr. Mushokorwa complained, the trial judge wrongly concluded that because of that the second appellant too was not a truthful person. ~We have eagerly consraered thi^complaint too, but once again we agree with Mr. Mwandalama that apart from the fact that that court did not rely on such matters and the like in convicting the appellants, the trial judge dutifully directed herself regarding the question of burden of proof. As reflected on page 106 of the court record on which she relied on the case of Zabron Msua v. Republic, Criminal Appeal No. 7 of 1979, CAT (unreported), she was clear that the accused persons cannot be found guilty on the weaknesses of their defences. Indeed, that is the law and we agree with her. We further agree with Mr. Mwandalama that the trial judge correctly found that the killing was actuated by malice. We subscribe to the trial judge's reasoning that the brutal nature of the killing, the carrying of the deceased's body from the place they killed him to the gulley at which they 18 ditched it, and the fact that they concealed their awful act to the village administration until they were discovered to have been the culprits behind that death, among other aspects, showed that they had malice aforethought. For those reasons, we find this ground too devoid of merit and we dismiss it. In the upshot, the appeal in respect of both appellants lacks merits an d w ed ism issitin itsentirety. DATED at IRINGA this 1st day of July, 2014. J. H. MSOFFE JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z. A. DEPUTY REGISTRAR COURT OF APPEAL 19