20180212 TZCA Tabora

IN THE COURT OF A_,PEAL OF TANZANIA . · AT TABORA (CORAM: MJASIRI. J.A .. MUGASHA. J.A .• LILA, l~A.) CRIMINAL APPEAL NO. 268 OF 2016 1. PASCHAL MAGANGA } . . 2. EMMANUEL BULEMO @ KADABAl:-AMO . . .................. APPEL~NTS VERSUS THE REPUBLIC .. ■ ••·.·~·.· ••••••• ■ II ■ •• ~ •••••• ■ •••••••••••••• II ■■~--····'· •• ~ ... •••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Mruma. J.) dated the 27th day of October, 2014 in Criminal Session Case No. 126 of 2008 The appellants were convicted of the offence of murder in a judgment dated 27th October, 2014. The appellants have filed an appeal in this Court to impugn the said decision. It was alleged that, on 9th March, 2008, at Mbon§we village, • ~. . 7 - ,. w.itriin ~,,.~·;~~, IBli$'oot·at,'. T~!)ti>r-a !i©§i'@A_ .t./:ile? ai~!D@llarntts: dial m.Wr-cler- ®tcie . NTIMA s/o NSESEH.A. The brief facts underlying the prosecution case are that, on the - fateful day at night the bandits armed with a gun stormed into the house of HONGOKA MASANJA @ MW/d~.lASAMAKA (PWl) and stole 1 Tshs. 1,000,000/= a:nd a bicycle; make HERO. The commotion was heard by SELELA MASANJA ·@ S.,_DA (PW2), t_he deceased's.'father ·and· the deceased._,Each at his own pace rushed at the roboery incident but the deceased, while on- the way was shot by the· bandits. The .. ··,·'· deceased cried for h~lp, his father PW2 rushed to assist him. He complained to have been shot by bandits while on the way to assist PW1. . Shortly thereafter, the ·deceased died. The post-mortem examination report established. the cause of death -to· be severe bleedi~9 due to gunshot. Tue incident was reported to the Police and th(;?-· appellants·· .wer:e · arrested,: interrogpted, • anc;I arraigned as ~tated ' . "" ·- .. .,..· ·.:,,,• .• ' •• .... ... ... -· ->' .;,.. ' . ; . " · The· appel!a.nts denied the. accusati~ns~ In order:.to estabiish ·its . case; the prosecution.·lined·up six witnesses, a- report on post'rnortem examination (exhibit Pl), a bicycle mak-e Hero (exhibit Pll), record of search by the police bfficer (exhibit_ P3), and cautioned sta~ern~nts of .. · · ,· ·. · ~me\i~peifantts (exFf;iti'itJtv.1--~ai1tg~v.eiv~:._>.;:, '·: _.. '. -~. ·. ': ·. ... : J.· .'. ·... ,_ PW1 recounted that, on 8.3.2008 he had earned a sum of Tshs. 1,000,000/::;;; after selling his six cows at the auction in USHIRIKA · area. While at the auction he saw MWANANSAO a habitual criminal. After the au~ion PW1 went ho~e riding a bicycle whi_ch he hired from . 2 ,M~SANJ~ MAZELU KASHI~DYE (PW3). The brand of the bicycle· was :HERO. with _wqrqs "sa,fari_njema'\wrJt;ten onthe rear seat;,While at his home around midnight, the bandits armed with a gun-stormed into his house. He attempted to escape but was pursued by bandits, .brought back to his home and forced to surrend,er Tshs. 1,000,000/=: or·else be killed. The bandits took the money andth~ bicycle_,which PWl had hired from PW3. The commotion between PWl and the bandits was heard by 'the deceased and his father (PW2t ··pw2 recounted to have h~ard the bandi_ts demanding money from· PW1. an€! smof in the air threatening ·. : ':. i t'tt. ~nr w!i®@;l~r :"~tit~ifl~t:ed tt© iisst~%,.: PW:f..·.:,:A~er . tlhe : ~tir)tj:its·. ~ .. . . ...., ·, . . ""· • - - ' :, • :_ . • - z. J>.., .,. • , • -- : ' ·_ • • - ::.."•• •• : ·: ' ':,. - . -·. . , : .. disembarked, just nearby. the robbery incident,. the. deceased was ,,----..: he9rd crying complaining to have been shot by the bandits while on the . way to assist PWl who was being chased by two· bandits. According to PW2, the .deceased. who sustained injuries .on the · §t)~@w.1tii~r· StJCCuJRli@-eft:'@ @efltiR:~~~Wil@: r~a~"i'~g~;e,·~ei19itEL -A~a~ f(orrf - .. " PW1 suspecting MWANASAMBO who was at the auction to have been among the assailants, both PWl and PW2 did not identify any of the bandits. PW1 reported the incident to the Village Executive Officer and the Polite. 3 .. . , •' Dissatisfied the appellants seek to challenge the decision of the trial Court. In a Memorandum of Appeal,· the .appellants have two grounds of complaint namely: L That, the learned trial judge erred in law in relying on retracted confessions by the appellants to· convict them with the offence of murder c/s 196 of the Penal Code Cap. 16 R.E 2002. 2. That, the· learned trial judge erred in law and in fact in holding that there was ample circumstantial evidence linking the appellants with death of the dec(?ased one NITMA SESELA . . - ... . . 0¥ Mr- M.tJ_§q1/p M~1k!,, !earw1~a QGly!Cl~eJ;, . ~Tiqe:.,:P.eSij@ft~~t- ~~p. ~~!.i_G:. · T • •" 0 •• • 0 ·••• ·•, 0 • • •: • ·• ·•• 0 • was represented by Mr. · Ildephonce Mukandara, learned State .. Attorney assisted by Mr. Tumaini Pius, learned State Attorney . In addressing the first ground of appeal, Mr. Mtaki submitted that, the cautioned statemen!5 of the appellants were_ wrongly .. · _, ·~0 -ljl9@n, ~Y t.ne trial. jw6l§Je to· c<1mvi'ct tr.ie- apioell~nts. He pointed out that, while the fateful incident is alleged to have been committed on 9.3.2008, and the arrest of the appellants was on 12/3/2008, the cautioned. statements were recorded t>eyond four (4) hours after the arrest which is contrary to Section 50(1) (a) 5 'I .. (b) of the CPA. ·. -He ·added· that, ndne ·of'tlie··statenients' was verified. by the appellants··as required by Sectiori'-57(3) ·(ii). of the · CPA. In this regard, the learn~d counsel urgecr us to ex·punge·the : . cautioned statements from the record.·· On probing by the Court,. the learned counsel" faulted the trial judge's interpretation which was to th·e effect that, t_he recording of the cautioned statement is not subject to· the time limitation specified under section so -(1) of the CPA ·as n is applicable onlt when.the suspect is being·;·ihterviewed or,ally. In . ad~r;:e~,~rw~r · tfule · $,@e@m@< @r~m~GI- :@f • a~~~a,1/ '.tt1r.· ·. -~~Ki . -. . -.~ . - ··.: ..... .<. -···:,·-',:· .. ~·::.~-~ -. ·.. _~-~~:·.-, '.;.;• _·· .. _:.. ;- ·. : ·; . ~:-;. , ·: .. _·.., . : ..•: ... •.f. :~ .. i·· • .· .••: · . ~ · · · · _ -~-~ .: .. , ; . ·- -submitt:ed :- . ..., t:flat,: ~. - ·. . $in"te. 11on·e ~·· . ·ort·~fie :a'@P.~li~nts: ...... ,.... . ~ was ldentifieg··~r~~< ·.... ·. . ,.. . _; ,,_: . - . ... ·: ,., ... . . - "! .·· •. •.•. -~ '• /.'.· •.. . ' -. . . . ~ . :; . scene of crime~ .,the. link· of the bicycle recovered· in th·e· 2 nd appellant's room with the murder of the deceased is very remote which renders the charge not proved against the appellants. Besides, he added that, t!:le evideMc;:e on recovery bf tr-1e Bicycle -is .' . ,._ l_.-,,..,,,. ·-:. •, • • -~ •. • ·••: • • • .,• .;..~.:.~:..,_;.<'>. ,,_: ... ~..•~•"""'" ....; •- . . ~.~ ·•.t·.:, Vlle~k¢ried ·!Dy .t,M·~ @U©SeeC:Jtibn.'s 1@ilute_· t6 ~,ircca~e ~·s .:a:: w-i,~~~s .. ~ - • •• • • • • .; .. • • -~ • • • < • ~ • ~ • ' . ' . PW4, the la11dlord of the house which was searched and the bicycle recovered. Finally, the learned counsel urged the Court to · discount the evidence of PW6, an additional witness whose · · evidence was not subjected to the committal proceedings. 6 . . . On the other _hanq;,the learned State Attorney supported the:';:· appeal. ; In- his ·bri~f -submission, he· conceded to ·the : irregular · admission .of the· q:1utioned :statements not recorded as · pe( · ·. . requirements of Section 50(1) (2) of the CPA. He pointed· out"· that, while section 57 of· the CPA regulates .the manner ,of recording the cautioned statements, section 50 prescribes the time limit of recording such statement after the suspect is arrested. The learned State Attorney as well, urged us to expung~ the cautiOned statements ·of the appellants. He further submitted . . OR the ,, .. im_propr,iety .- -_ ,. .· ,•. qf th_e Jearn~d- ·. . trial . , . •Jllld.§(lffiX/@K,irl@' tltte /Jl@(!t:j!j~~ Qr:J1:i~'t ~©~3$iofl to, irripiiOOi:e ihE< : appellants with. the charged offence. : . ·:'. He pointed out that, since ' . . the recovered bicycle was in custody of the police, the manner it . found its way back to PW3 who te_ndered it as an exhibit at the trial leaves a lot to . ~e desired. H~ argued that such ·· .· @foo:wwi~trnGe'S/arG!t~F.Se!\i- i•fti~a~cf·on· tirn@_chafn. ~f custooy ·oft~e.. · · _- exhibit in question which riddles the pros_ecution with serious doubts. 7 .To support. his ·assertion,· he referred·· us· to·· ·the case of Pa\SCHAL MAGANGA. AND • ANOTHER. vs REPUBuc>. consolidated • • • • • • < ••• , Criminal Appeals Nos.· 24 and 25 of 2016 (unreported); · ·.. After a careflJI consideration bf tHe· sub~issi~·n·s by ~ounsel and the record of the tria:I, the crucial issue for our deteri'ni-~ation is whether the charge of murder was proved against the appellants beyond a shadow ·of doubt. The trial court's ju'dgment at pages 175 and 176 of the record reflects as follows: N$eselcF ~(iina. {PV(/2/ vyff~ {Jadi;lpaiti?d in the·. GIJ?ting 11 . _: . ·~ .. :·· . ·: .. : . .. ·-~. ··_. _.·---· --~~ _-. ··. .. ·--~~ ~. .·:· -·: ... ..... .. ... ·:- __ -•· _ - · .. .·. .;~l ti;ip. @&tJ(/[$ ,s.<IJitd /Je~Jf-Jf!JB.:ii~~~. ftJQiF-iifl.(rk~K.~/;80riit4W~ • • . • . 't..... .. • .• ... ~ ., • ,,.. • • . • . 0 •• - • • 7 . ~-,. : 'he hea~c/qun~hot only to reaiis~ that)tvvas his s;n-wh;.. was shot. His story corroborates· the second accused· . ' story that they were six bandits in the commission of the offence and that he sc1w a person being chased on maize farm and a gunshot Anpth~r <20rr.00Qra!Jj0n can •• ·• ..,;.; "• ,; •!'")of -O!l · e/,~fif:-{l)Ji;. :_ ft,,@(f,l_ : tf/J.@•.v@WJri~!J_(l@. ~f: lfWeg,t,e ~:f!Jils&"i/jo. "(+?l'ir~t) 11/lffil· [!@Ve.• ti~:.' s~Mf;. t~rSi~; .iii< wlfet if'61Rip;ired . when he was invaded by the bandits that night and Agnes d/o Shija fn connection with the b[cycle which was later recovered in the second accused's room. " In.swmmary, I findlt-Jat the (Exhi!;;it ' . . Pf.VJ c0nfe5sion was·. corroborated by the evidef!ce of /f/0ngoke Masanja 8 {PW1}/ ,Sesela Ntima {PW2) and Agne$, d/o Shija (PW6}... P_Wl gav~ even more inctiminating evidenc~ , · ·'corroborating ihe accused's confessions... both accused stated in ·theif' conf~ssions that it is /v/wanasambo' who. - led thern to PWJ's house'~ The aforesaid findings: of trial judge· led him to the conclusion reflected at pages 176 to 177 of the record as follows: "Thus/ taking into - consideration ·the facts that the second accused was found in possession of Hero bicycle .. {Exhbit P11} few days after it was stolen from PW1, as . it is amply demonstrated by the evid~nce of PW4, PW~ Pl,1/G and the sea,rch otder- · (~x_!Jibit PJJ,J}, - <1n. . blfle, _ ~$.tit~!}!:/) ·'0r fifrJe c0ilfes-sioi1 >ahcf. , the - ·<1@r;,0fj@r✓a§Jig ~- - ,et'ideNJCe }/i~tb1e_ at:t::'l.ls~d-:w~re_am~ng the Bandits who" committed the robbery and shot at Ntima Sesela causing· his death. I hereby find that the prosecution has been able_ to prove its case beyond reasonable doubt against the acc~sed persons... " ... . I~ a· ~~~~11,- in qonvJ,ct!qg ttle :a·~p~l?tnts _the .-!!1:ial C~!Jr:t ·o.a$i:eaU~r relied on the ·confessiJnal statements of the appellants and the evidence of PWl, PWS and PW6 that, the bicycle stolen and later -recovered by the police in the 2nd appellant's room directly linked the aiopellants with the killing of the d_eceased. 9 , .. • . ,,At the outset,--we-wish··to·begin. with the propr'iefy or otheIwise of the evidence.of :AG_N:ES SHIJA:MAG~NGA (PW6) whose account was relied upon by the trial judge to ·c.;onvict the appellants. This was .. .. :. ... . .. ' .. wrong . .\Ne say so;_ having. ·. .. .. gathered fron, the . committal '·. proceedings •. ' ~ that PW6 was -not among the .sixteen ... ,· . . . . .. . . . persons whose substantive :' . evidence was read out and made knm,yn to the .appellants at the 'committal stage~ Before:the accused is committed for trial at the· High Court, section 246. (1) of the_. Criminal Procedure Act, requires the .. ; ' subordinate court, -upon receipt of the copy of the information and the . - - notice to·summnn·the accused· person. Thereafter, section 246 (2) of _ the. G:f?.A. g1\4E1S'tMe.:'f~ll:@~i'l1l§:.ririlafflG~t0r.y - ·.- ~. . '- ... . . . dire.~icitf}?. . . . . . p1s·J0Hows: .,, · ....· ·,.... · . . . . . . '.__~; ~ \:; , ·.-. . ...•; . . :· · ~.:.,. . . .' 'L~ .-: . - .. ·,. s ~ ~ . ... , ~ -· • ~ .:·· ··.!,•.; .,. ::, . ~- ·_.~·.:.• •..-: ..• ,_• .· _.,.: ..-: :_.:-. .• •• :, ,•·"...,.t· .. ·· .•. ··, ._.,.•.••• _:: __ •••-'.• ~ -- (2) Upqn appeatanctf of the acci.Jsedperson before--it; . .the subordinate court shall read and explain or cause to be read· to· the· accused person :-the information brought ·again$t him as well as the statements or dosumef:lts ·confE!i.Aing the substan~e of the evkj&nce ... : g}P -.~#'lttit{f_'S,"S,QB•:.--· \ . .pf/i&lfl" _::&i@~- _:':@ll/f:Xf/!@/ . 0 • ~@f; . ftt1/Jli~•:···_.-' . .. Pt:bseedil¥@ms"Frri-tifim1ilf tt:i Gali! at't:f!Je t!tilill'~ ·· · It is clear that, the cited provision -imposes mandatory ·conditions ,in qrder to enable the accused- person to be aware of the nature and the · subst~mce of the evidence intend,eq to li>e lined up by the prosec:Lit1on at the trial. Where the stat~-m~-nt 0f a witness h?!s not been read out 10 ,pt the. committal proceedings,- section 289 (,l) and (2) ofthe 'CPA gives the following directions:. · (1) No witness .whose statement or substance of evidence was not read at committal proceedings 'shall be called, by the prosecution. at the trial unless the. prosecution has given a reasonable notice. ~n. writing_ to the accused person or his advocate of the intention to call such witness'~ ·, . . .. (2) The notice ·shall state the name and address of the witness and the substance of the ·evidence which he intends to.give.,, · . Cc:impUaoc~ .with the Gi,te,d jDr.@vlsi@~S \o/~? .. ~,P?fficl${S.~d in thle • ,••• • r • .., •• • • ••• ,;, .-' • •• • • appellant wa~ convicted of murder and sentenced to death on the basis of among others, the all~ged confession made. to the Justice of the peace. ·The statement was not read out at the committal stage .. • apd t~e. Justic~ of. the. P~ace was paraded_ a.l? .• Rrosecwt~on _w,Jt.ncl£S . . ,.:" :., ~ - • • _';, - . ·' , • r ,..,. , -~. • ·: • - ·_;·. • . • • without the appellant or his advocat,e ·b"eing given ·reasonable notice. The Court among_other things held: "(i) The learned Trial Judge erred in law in allowing ~vldence of the Justice of the Pe<ace to IJe given at the . trial when hi$ ·$tatement had not been read at the 11 commilta/ proceedlngs·and no notice had b~eh 'given to','. . the appel(ani r.Jr his advocate, and therefore, the extra- .:: judicial· sta~eiJ1ent was ":'rongly admitted; .. . (ii) .Section 289(2) . of the Criminal Procedure Act 1985; makes it mandatory for not only the name and address Of the witness to be supplied, :but also' the substanL--e. of the evidence which he intends to:give;" VVe fuliy subscribe to the cited decision.· In the circumstances; since PW6 was n·either !lsted nor her state'rnent read out to the appellants at the cm·nmittal. proceedings, · she.. was unqualified to testify as a prosecution witness at the tr.ial under scrutiny. We ~ay so, becatJse the j~q©~©€~•~i~ij~Gj.jGl, ~. .. . . . 11~;1;;--QJif(e. . . . n@ticae ·. . tO-:C:9Jl:,a1f : aqditi©m'al . witness:.be· i~-ifi;,_tlme . . ..· :<· ."-:>--.:..,· . : ·,: . . . • ·•••• _. • • ' .- • .. - •• • •• •• '• ,_I•~,. : •• • .: : ~• - ~•,~• .~ ; .. " •••',.~. ,•,• • .• •.- > • .~t,"" • ,--.. ---•_;i ~-• ~ · ·. aJi:>peHaritor his.·advoe:qte,. -n,us, PW6's e\iidefi'ce·was wrongly received ·. '.. : . , .:_.-,·: · . . .. : .· .·. : .. . . . ./ .. ~ •' ' ;.. and acted . upon to· ·convict the appellant and as · such, we are constrained to expunge her entire evidence~ _RegarGfing. to the_ propriety or otherwise of the caution@d ~~.£~,e~~r \'1;e. a~- @ft-t~_e ..~Gin-si~~r(itf ~~fnio·r-t~tiat; t:r1ose: .s~tte~ernt-. ·. .·:.-·_· ··· ~, ·: : .. i,,.~_. . . . - . ~ ..~·-~ -·· ·. ~ .· : ... were taken iri violation of section 50(1) (a) anq (b) of the CPA. As pointed out by both learned counsel and reflected in the record of appeal, the ·appellants were arrested on 11/3/2008. However, the 1st ai;>p,ell~r-it's statement was taken on 13/3/2008 ·whjle that of 2nd . appellant was recorded on 12/3/2008 .. Besides, at page 59 of the 12 record, during cross exa.mina_tion, PWS adrDitted ~o have recorded first appeflantrs statement after 24 hours.. It is now settled law that a cautioned statement recorded outside time prescribe~ under section 50 (1) (a) and (b), is not consistent with the view that the confession was made voluntary. In JANTA JOSEPH KOMBA, -AND 4 OTHERS vs -REPUBLIC, Criminal Appeal No 95 of 2006 (unreported), the Court underscored that, it· is for sound reasons; the :legislature did limit the time within - which a suspe.ct could be in police custody for investigative purposes. ·Thus, beiQ9 in police custody bey,ond the r;,rescri!Ded _~~~i@d @f bilrl;le mas a Given the circumstances in the matter under scrutiny, in the absence of any explanation for the delay to record the confessional statements and since no extension was .sought and ot>tained as required by section 51(1) -(b) of the CPA, the cautioned statements of ~ . ·-. . . ·:· . . . ·-· ·_.;, .. _ •. ~-... . '.: , ~ ·- - ~ - · t ... the. ~ppellant~ were ta~elJ centr~r,y to- tf)e, Pmamea~cy- neq1StJnEfr,nier;it,s' 9f the law. : Pertaining to the interpretation of the limitation or otherwise C?f recording the caution,ed statement, at pages 165 to 167, the trial judge conduded that, the- recording is not subject to the limitation of 13 .four hours as prescribed ·under section 50(1) (a) and (b) of° the CPA.· The trial judge was 9f the. view that the prescribed . . . time..limit regulates ' an oral interview of a suspect. With respect, and a·s 'rightly submitted by the learned counsel. the trial judge's.. interpretation is not correct. \/Ve say so because ·uhder the law, the time begins to ·count after the suspect is arrested. In the case of JOSEPH MKUMBWA & SAMSON MWAKAGENDA vs. REPUBLIC,. Criminal Appeal· No.94 of 2007 (unreported), the Court was faced ·with a. scenario whereby the ~- cautioned statement of the appellant was.· recorded beyond legally ' prescribed ti!J!e. li~-it. Thus the ~curt said: · -;it,-~qf vie~~-. a~/perfoh Js,@~m~ct .t:.q pe._1.~fe~n-. . .:·. · ,ir;d~r-:restr~irit .wh~;: he .ii ·arrested-jn re;pect ·- ., . . . . '• . .. . .. of an offence, and that is when the basic period commences. " · It is s<2ttled law that failure to· observe the time limit in recording a We are in agreement with the learned State Attorney that, apart from the manner of recording the cautioned statement being . . . regulated by sections 57 and 58 of the CPA, the time limit for its r,ec0rdimg remains to be as prescribed under section 50 (1)° (a) and (b) 14 ,of the:CPA. We are·,_also ·in,agreement with·'appellant's counsel that, th_e cautioned: statements of the appellants had. a predicament 'bf n·6t being .ce1tified. by th~!Jl at the. end of the record. as per -mandatory requirements of. section 57(3) (a) (ii) of, th~ CPA. Therefore,· the cautioned statements - of the appellants were. . recorded in violation· .•, . of the law. As such, th.e trial ju_dge wrongly acted on those statements to convict the appenants. , We thus agree with the learned counsel· and accor~ingly expunge the cautioned statements from the record. In view of the stated shortfalls, we wish to point ouf ·that, in ..: determining the· admi~gjfr!ility Gr o~tier-wi~e- of trae. cawtJemeGJ .ststememt, the· tr,ial C061~ ·m1&st· @flt~ttireris-tc1iet eoM1f~IIXiriee with tie!~ lat\~; •• - • 1 ' ..,. , • • •/ • V • Having expunged the< evidence of PW6 and the confessional statements of the appellants we thus remain with the last issue as to whether or not the bicycle (Exhibit.Pl!) links the appellants with the killing incident. The said stolen lz>icycle- is said to. have been recovered _,,- • • • ,<.· • ~- - / ~-·, : ...._· . . . . . . -• • .: '•, , • • _,.. •-~ .~-~. l, 1'. :' .," I~••,•.::• •. • _P_..,: '.t• •• . •·• ·· hiy the Pait~~- in t'1fe -2na a~@·eJltnf's ~room and a-s such .it.y,y.as ·i.fl tlife a • • ., • custody of the police. Thus and as rightly pointed out by the learned · State Attorney, it was irregular for the bicycle to be tendered in court by PW3. This sequence of events from recovery, storage at the police . and exhibition· at the trial rendered the chain of custody broken in the 15 handfing of (Exhibit.Pll) .This cast a clqud of doubt.on the"prosecution case as to ·whether w_hat was ·exhibited in ·Court is. the same bicycle _which was recovered ·in the 2nd appellant's room~ On th!S accord, we wish to repeat what we ·said in ZAINABU D/O _NASSORO @ ZENA VS. REPUBLIC; Criminal Appeal No._ 348 of 201fr (unreported). · 11 ••• oil the proposition that as custody ·of the evidence of exhibits move from one chain of custody to the . next, the exhibits . concerned must not only be properly handled, but each . . . stage of custody thro.ugh which tbe exfa!ibits passr. must be. docuinent~d- till -t/fJey cJllP-. - t~ndered in Court " ,. ':¼. ..- .. ·. ' -~ . . . .. ' ...... - . ·.- ~ . :. . . - . .. . • r • • . The rationale ·.behind is One, to ·ensure -integrity ·of the- chain of_ custody to eliminate the -possibility of the exhibits being tampered (SWAHIBU AL.LY BAKARI VS. REPUBLIC, Criminal Appeal No. 309 of 2Q10 (unreported) . MAG.ESA . CHACMA NY.A·K[8AbI vs. ~Bl?Wi~~~ ahd t:~~; ·to'.est:~~liS.,h ·t~~t} tGe ~IJ~gs_g_ ~,v.iGier:J~ .i~ ·o;i- f:acrr . related to the alleged crime rattier than for instance having been planted fraudulently to make someone guilty [See PAULO MADUKA AND OTHERS VS. REPUBLIC, Criminal Appeal No. 110 of 2007 (unreported)]. 16 . In the .light of the cited.. authorities which we Jully subscribe to, in the ~ase .at hand, it cannot be. safely vouched if the b_icycle· stolen from PW1 near the crime scene where the murder was committed and later recovered in the 2 nd -appeUant's room is what was. exhibited. at. the trial. . As such, we accordingly expunge exhibit Pl L . Finally, we are fortified in our view that, since none of the appellants was identified at the scene of crime as correctly found by the trial judgei in the absence of any other evidence to _link the appellants with the murder, the charge of murder was not proved .· against the ~ppellants; We, therefore allow th~ a~peal anGI @r-der tt:le · DATED at, TABORA this 12th day of February, 2018. S. MJASIRI JU.STICE OF APPEAL S. E. A. MUGASHA JUSTICE GF APF,-EAL -. . s. A. Lii:.A . . -. JUSTICE·'t>F APP.EAL I certify that this is a true copy f the original. A.H. M MI 9.BJ?UTY RBGIST&+R. COURT OF APPEAL 17