CRIMINAL APPEAL NO 143 OF 2020 MANOJA MASALU ANOTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA. J.A.. MAIGE. 3.A. And KHAMIS. 3.A.1 CRIMINAL APPEAL NO. 143,OF 2020 MANOJA MASALU............................. ............................. 1st APPELLANT MALUGU BUPONI........................................................... 2nd APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Magu) flsmail. J.1 dated the 3rd day of February, 2020 in Criminal Sessions Case No. 231 of 2014 JUDGMENT OF THE COURT 29th May &. 6lh June 2024 • KHAMIS. J.A.i Manoja Masalu and Malugu Buponi, the appellants herein, were convicted of murder contrary to section 196 of the Penal Code, Cap 16, R.E 2022 and sentenced to suffer the mandatory death penalty. The particulars of the offence were that, on the 1st day of November, 2013 at Mwitambo Village, within Kwimba District, Mwanza Region, jointly and together, murdered Shija D/o Buponi. The appellants pleaded not guilty and the matter proceeded to trial before the High Court, Mwanza Registry, at Magu. In a Judgment delivered on 3rd February, 2020 the trial Judge was upbeat that, the case of the prosecution was proved beyond reasonable doubts and thus, conviction was entered as charged. The duo has now appealed against conviction and sentence. Before delving into the appeal, it is auspicious to give a summary of the evidence adduced at the trial. It is on record that, the prosecution called a total of six (6) witnesses and the defence paraded four (4) witnesses. Whereas the prosecution tendered six (6) exhibits, the defence produced none. An outline of this evidence is inevitable. The prosecution case was fundamentally centred on PW3. This was Pius Samwel, son of the deceased who was ten years old at the time of the incident. His testimony was that, the deceased was killed in the evening of 1st November, 2013. The witness was at home and spent good time with the deceased until few minutes before her demise. He prefaced his testimony with a suspicion mounted on the first appellant for the unusual movements made at the deceased's compound few minutes before she was attacked. The witness said around 6.00 pm, he visibly saw the first appellant seated outside the cow shed from a distance of five paces away. At that time the deceased had gone to pick vegetables. Upon her return, she prepared dinner that was shared by her, PW3 and Rehema Samweli. The latter is the daughter of the deceased who did not testify at the trial. About one hour and fifteen minutes before the attack, the first appellant and Rehema Samweli were seated outside the house and the deceased was in the kitchen preparing the meal. Rehema and PW3, sighted the first appellant moving around the deceased's homestead. Thereafter, dinner was served inside the house. Immediately after the family enjoyed the dinner, the deceased and Rehema Samweli walked out. No sooner than the two had walked out, the witness heard his mother shouting for help. He quickly rushed out only to meet Rehema Samweli who disclosed that the mother was being attacked. PW3 approached his mother who was lying down and lit some fire to properly see her. Upon consulting each other, PW3 and Rehema Samweli sought refuge at the house of Lukwa Lonzobe, the neighbour. On learning of the incident, the latter went to inform the second appellant whose house was about one kilometre away. On cross examination, PW3 said the deceased was attacked at around 7.00 pm and that, the first appellant had worn a black shirt. On further examination, the witness said the colour of the second appellant's shirt was not clear since it was partly dark. On further questioning, he said the first appellant did not have grudges with the deceased but the deceased had a feud with the second appellant over a family land. On further cross examination, DW3 disclosed that, his elder sister, Sundi Samweli, was divorced in court as the husband demanded a refund of the bride price. He expressed suspicion on the first appellant but had no clue on the actual killer. On further questioning by the appellants' counsel, PW3 said it was Rehema Samweli who saw the deceased being attacked and she could identify the assailant. PW4 Tollo Samwel Hillya was the husband of the deceased. Their marriage was blessed with five children out of whom four were alive including PW3 and Rehema Samweli. At the time of the incident, he had gone to visit his other wife, Kinda Lipondya. Subsequently, he visited the scene in the company of two other wives where they found the deceased severely injured and lifeless. Her body was lying in a pool of blood outside the house. As the husband, he contacted policemen over the phone who advised him to visit the station the following morning. On questioning by policemen at the police station, the witness did not mention any suspect. On cross examination, he stated that, the assailant was unknown and that, his involvement was mainly to draw the sketch map of the scene of crime. F 2576 CPL Mrisho, a police officer at Misungwi Police Station, testified as PW2. He was involved in the investigation process and drew sketch map of the scene of crime under the guidance of PW4. The sketch map was admitted as exhibit P2. PW5 F 9940 D/SGT Peter was a policeman stationed at Ngudu Police Station. He accompanied other policemen at the scene of crime where the deceased was found lying outside the house. He witnessed the post mortem examination and recorded the statement of PW1. According to him, the deceased sustained injuries on the head, neck and arms. Disclosing reasons for the appellants' arrest, the witness said the first appellant was seen twice doing suspicious movements around the cowshed at the deceased's compound and the second appellant was involved in a land dispute with the deceased. The witness introduced into evidence the cautioned statement recorded from the first appellant which was admitted as exhibit P3 following a trial within trial. On 4th November, 2013, he led the appellants to the justice of peace where each of them recorded a confession statement. PW1 George Lucas Mwanaloga, the medical doctor at Ngudu Hospital, conducted a post mortem examination on the deceased's body at the scene and concluded that, she succumbed to severe haemorrhage following multiple cut wounds on the neck, head and the hands. He tendered a post mortem report admitted as exhibit PI. PW6 Bittony Henry Mwakisu was the primary court magistrate and the justice of peace who recorded the appellants' confession statements at Malya Primary Court. The appellants were presented to him by a policeman named Alex. According to him, in recording the statements, he ensured compliance with the Guidelines issued by the Chief Justice on the recording of confession statements known, as the Guide of the Chief Justice for Justices of the Peace [the GOJP]. He testified that, after recording each statement, he read it over to the suspect who would confirm its contents following which it was duly signed. Overall, the witness said the appellants confessed to commit the offence. The retracted statements were admitted as exhibits P4 and P5. The appellants were placed on defence and testified as DW1 and DW3 respectively. The first appellant denied the charge and advanced an alibi alleging that, at the time of the incident, he was at home with Manyanda Jackson and Kulwa Tungu. The trio had a dinner and remained together until an alarm was raised from the deceased's house. Following an alarm, they went to the scene and stayed vigil to find out the person responsible for the incident. The first appellant left the scene at dawn to his residence and subsequently, to the village open market where he sold his merchandise. He was arrested at the open market and clutched to the police station. At the station, he was forced to sign some unknown papers at a gunpoint which turned out to be the cautioned statement. Despite being illiterate, the contents of the papers were not read over to him. The following morning, he was joined with the second appellant and escorted to a magistrate's chamber at Malya Primary School. Upon arrival, a policeman handed an envelope to a magistrate who coerced them into signing some papers whose contents were not read over. The papers happened to be confession statements. The first appellant completely disassociated himself from the killing and regarded the second appellant as an innocent neighbour who used to buy commodities from his shop. On cross examination, he said personal and family particulars were recorded at the police station and probably used in the statement. He disputed all details relating to the confession as recorded in the statements. The first appellant's evidence was corroborated by DW2 Kulwa Tungu who went on record that, he was in the company of the first appellant and the late Manyanda Jackson from 5.00 pm to 9.00 pm. After the dinner at the first appellant's house, the trio remained in conversations until they heard a whistle from the deceased's house. The second appellant followed the first appellant's footsteps. According to him, he was arrested on 2nd November, 2013 at the scene of crime but the reason for the apprehension was not disclosed. He was ushered to the police station where personal and family particulars were supplied and recorded, following which he was incarcerated. Afterwards, policemen shepherd him and the first appellant to a magistrate's chamber at the Malya Primary Court where they grudgingly signed papers whose contents were not read over to them. The magistrate turned out to be PW6. 8 He distanced himself from the charge and testified that, he was in warm relationship with his sister, the deceased. The allegation of a fuming inheritance dispute was baseless because their biological father was still alive and kicking. In a separate note, he recalled of a land dispute involving his father and one Mwanabuluba which had nothing to do with the deceased. / On the fateful night, he was at home until Lukwa Lunzobe turned up to report the incident. He went to the scene carrying a whistle and found his sister dead lying on the ground. He immediately telephoned a brother in law, PW4 to break the sad news. He then blew the whistle to attract villagers who assembled at around 9.00 pm. Among others, he made inquiries on the assailant but nobody had any information. DW4 Cecilia Charles was the wife of the second appellant. She corroborated the timings, movements and schedules outlined by her husband regarding his whereabouts on the date of the incident. According to her, the sad news on death of the deceased was conveyed by Lukwa Lunzobe who dropped by at around 8.00 pm as she was having dinner with the second appellant. She disputed existence of any family wrangles that could cause the killing and insisted that her father in law was still alive. She stood firm on the cordial relationship that existed between the second appellant and the deceased. She knew the first appellant as a shopkeeper but refuted claims that the two appellants were friends or visited each other. At the hearing of this appeal, Messrs. Godfrey Kange and Emmanuel John, learned advocates, appeared for the first and second appellants respectively. Mr. Daniel Masambu'and Ms. Jaines Kihwelo, learned State Attorneys, were in charge of the respondent Republic's brief. Having adopted the grounds of appeal, Mr. Kange clustered the submissions in two groups: procedural irregularities reflected under the first, second and third grounds; and; the substantive shortcomings shown on the fourth, fifth and sixth grounds of appeal. Generally, he contended that, the prosecution failed to prove its case beyond reasonable doubt. On the first limb of the submissions, counsel avowed that the learned Judge erred for relying on the repudiated cautioned and extra judicial statements that fell far below the legal threshold. He argued that, the extra judicial statements (exhibits P4 and P5) did not comply with the GCJJP as they were not read over to the appellants at the time of recording; failed to show a place where the appellants had spent the previous night; and; omitted a certification by the justice of peace and the appellants. 10 He implored us to follow our decision in Chamuriho Kirenge @ Chamuriho Julius v. Republic, Criminal Appeal No. 597 of 2017 [2022] TZCA 98 [7 March 2022] wherein we stated that the GGJP was part of our law and must be followed to the letter by the justices of peace when recording the suspects' statements. We also stated that, the omission to indicate that, the statement was read over to the suspect after being recorded is fatal as it renders the document highly suspicious. The counsel argued that, it was not sufficient for the justice of peace to testify that, the GCJJP was fully complied with whereas such compliance was not reflected in the document itself. He insisted that the document must speak for itself. On the cautioned statement (exhibit P3), the learned counsel faulted the trial Judge for failure to find that sections 50 and 57 of the CPA were not complied with. He contended that, despite the first appellant's illiteracy, the recording officer did not read over the document to him and the document was silent on the date of its recording. He relied on the testimony of the first appellant at page 66 and the counsel submissions reflected at pages 56 and 65 of the record in asserting that, the alleged confession statement was recorded a day after ii the time of arrest contrary to the mandatory requirements of section 50 of the CPA. Mr. Kange beseeched us to have regard to our decision in Haika D/o Chesam Mgao v. Republic, Criminal Appeal No. 37 of 2021 [2024] TZCA 6 [4 January 2024] in which we expunged from the record a cautioned statement that was recorded beyond the prescribed statutory time. On the second limb of the submissions, counsel contended that, despite acknowledging absence of direct evidence to link the appellants with the offence, the trial Judge went ahead to rely on the incomplete chain of events which did not link the appellants with the killing. He submitted that, the evidence of PW3, PW5 and PW6 was neither consistent with nor complemented the defective confession statements. The learned counsel further faulted the trial Judge for failure to hold an adverse inference against the prosecution for its omission to cause appearance of Rehema Samweli as a witness despite being the only person who was with the deceased during the attack. On this aspect, he referred us to the testimony of PW3. The learned counsel for the second appellant adopted the submissions by Mr. Kange and contended that, in absence of direct 12 evidence to link the appellants with the offence, it was wrong for the trial Judge to rely on the confession statements to found a conviction. Mr. John pleaded with us to find that the retracted confession statements could not stand alone in absence of other corroborating evidence. He asserted that, the trial Judge failed to warn himself on the danger of basing a conviction on uncorroborated retracted confessions. To fortify his view, he urged us to go along our stance in Alex Ndedya v. Repulic, Criminal Appeal No. 207 of 2018 [2020] TZCA 202 [6 May 2020] in which we addressed our minds on the position of the law stated in Tuwamoi v. Uganda [1967] 1 EA 84; Bombo Tomola v. Republic [1980] T.L.R 254; and; Hemed Abdallah v. Republic [1995] T.L.R 172 which emphasised the importance of corroboration in respect of repudiated or retracted confessions unless the court warns itself of the danger of relying on the uncorroborated statements. The counsel asserted that, since none of the prosecution witnesses witnessed the killing, they could not corroborate the retracted confession statements. He submitted that, in absence of an express warning on the danger of relying on that evidence, the trial Judge wrongly convicted the appellants. He moved us to allow the appeal, quash the conviction and release the appellants from prison to rejoin their families. 13 Ms. Kihwelo readily conceded that, the cautioned statement was recorded contrary to sections 50 and 51 of the CPA and submitted that the irregularity was incurable. She also conceded that, there was no eye witness to the incident but was quick to add that, PW3 saw the first appellant's suspicious movements immediately before the deceased was attacked. In the circumstances, she contended that, the confession statements were corroborated by the evidence of PW3. In the alternative, the learned State Attorney asserted that, the trial Judge properly warned himself of the danger of relying on the retracted confession statements as reflected at pages 180 to 186 and 188 of the record. She cited Mabaia Masasi Mongwe v. Republic, Criminal Appeal No. 161 of 2010 [unreported] in which we approved our stance in Michael Luhiye v. Republic [1994] T.L.R 181 that, much as it is desirable to scrutinize corroboration in support of a retracted confession but a court may also convict on a retracted confession without corroboration. On the propriety of the confession statements, Ms. Kihwelo contended that, the same were valid in view of the legal stance expressed in Peter Charles Makupila @ Askofu v. Republic, Criminal Appeal No. 21 of 2019 [2021] TZCA 197 [12 May, 2021] and followed in Hamis 14 Chacha Wisare v. Republic, Criminal Appeal No. 207 of 2019 [2023] TZCA 17590 [1st September, 2023] that, there is no requirement for confession statements to be read over to the suspects after being recorded. In conclusion, Ms. Kihwelo invited us to find the prosecution had satisfied all elements of murder including malice that was established as per the legal requirements. She thus prayed for dismissal of the appeal in its entirety. In rejoinder, Mr. Kange's perspective was that, decision of the Court in Hamis Chacha Wisare [supra] was distinguishable from the circumstances of this case because, apart from failure to read over contents of the document to the suspects after its recording, the justice of peace had failed to certify its correctness as per the GCJJP. The learned counsel implored us to follow our decision in Chamuriho Kirenge @ Chamuriho Julius [supra] and fortified his prayer with a reasoning that, the form used to record the statement in this case was incomplete and inconsistent with the GGJP. He added that, the appellants were prejudiced with the magistrates' failure to read over the statement which resulted to inclusion of matters that were not stated by them. Further, the learned counsel submitted that, the extra judicial 15 statements could not, in law, be solely acted upon to found a conviction in absence of corroboration. On his part, Mr. John adopted the rejoinder submissions by Mr. Kange and reiterated his own earlier submissions. We have considered the counsel rival submissions and thoroughly scrutinized the record. The issues commending themselves for our determination are twofold: whether the trial court proceedings are tainted with irregularities that vitiated the trial, and; whether from the evidence on record an inference can be drawn that the appellants were guilty of the murder of the deceased. From the outset, we commence with the undisputed fact that, the nature of the evidence led by the prosecution in this case was partly circumstantial and partly confessional. It is on record that, none of the six (6) prosecution witnesses testified to have seen how or by whose act the deceased died. We have considered the trial Judge's analysis and evaluation of the evidence on record. At page 174 of the record, he observed that: "A scrupulous review o fthe testimony o fthe prosecution, especially that o f PW3, does not seem to offer anything which comes closer to the legal threshold required to found a conviction as set out in the cited decisions..." 16 After analysing and evaluating the entire evidence, the trial Judge at page 187 of the record was satisfied that, exhibits P3, P4 and P5, revealed a culpable role played by the appellants in causing death of the deceased and that, both were enveloped with malice aforethought. Considering the weight placed on these documents to found a conviction, we are constrained to test their legal competence. We shall start with the cautioned statement that was admitted as exhibit P3. Both learned counsel were at one that, it was recorded beyond the four hours prescribed under the law counting from the time of arrest. In a plethora of authorities, this Court has stated that, in recording cautioned statements police officers must take precautions to abide by the law. It was further enunciated that, statements obtained contrary to the procedure laid down under sections 48 to 51 of the CPA are inadmissible [Janita Joseph Komba & 3 Others V Republic, Criminal Appeal No. 95 of 2006; No. A 5204 WRD Victory Paschal v. Republic, Criminal Appeal No. 195 of 2006; and; Azizi Mohamed & Hamza Mohamed Madai @ Munja v. Republic, Criminal Appeal No. 15 of 2006 (all unreported)]. Section 50 (1) of the CPA provides that, the period available for interviewing a person who is in restraint in respect of an offence is the period of four hours commencing at the time when he was taken under restraint in respect of the offence. Section 51 (1) (a) and (b) of the CPA proffer that, where a person is in lawful custody in respect of an offence during the basic period available for interviewing him, but has not been charged with the offence, and it appears to the police officer in charge of the investigation, that it is necessary for a reasonable cause, that the person be further interviewed, he may extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; and or, either before or after expiration of the original period or that of extended period, make application to a magistrate for a further extension of that period. Exhibit P3 is silent on the date of its recording. It only shows the time of recording, from 10.20 to 11.40 hours. At page 66 of the record, the first appellant was recorded stating that, he was arrested on 2nd November, 2013, around 12.00 noon at Ngudu Mnadani. In his testimony, PW 5 F 9940 D/SGT Peter, confirmed that the first appellant was arrested on 2nd November, 2013 and the statement was recorded on 3rd November, 2013 from 10.20 am to 11.40 am. 18 With this evidence on record, it is obvious that, exhibit P3 was recorded after almost a day from the time of the first appellant's arrest. Considering that the prosecution did not lead any evidence to show that time was extended, it is our view that, the document was recorded in violation of section 50 (1) of the CPA. Since the irregularity is fatal and renders the statement inadmissible, we proceed to expunge it from the record for being illegally obtained. Next for consideration are exhibits P4 and P5. These are extra I judicial statements allegedly recorded by the first and second appellants before the Justice of Peace. The learned counsel for the appellants submitted that, the documents were recorded in violation of the GCJJP. On the other hand, the learned State Attorneys for the respondent Republic, strongly argued that, the manner of recording the statements was in full compliance with the GCJJP. This issue is not untouched. It was traversed before. The GCJJP traces its history to the year 1963 when the Magistrates Courts Act, 1963 [the MCA] was enacted. The timeline was tracked down in Hatibu Gandhi & Others v. Republic [1996] T.L.R 12, wherein this Court observed that: "...the Act (the MCA) contained provisions for the appointment o fJustices o f the Peace, both ex-officio and appointees o f the Minister responsible for Legal affairs. Under section 56 (2) o f the Act the appropriate judicial authority, that is, the Chief Justice, is empowered "to issue instructions not inconsistent with any law for the time being in force for the guidance and controlo f justices in the exercise o f their powers, functions and duties and everyjustice shall comply with and obey such instructions". On the authority o f the provisions o f section 56 (2) o f the Act, the Chief Justice issued instructions tojustices o f the peace to guide them on, among others, the manner o f taking extra-judicial statements. The booklet entitled "A Guide for Justices o f the Peace" contains on pages four to live the relevant instructions, hereinafter called "The ChiefJustice's Instructions". For the avoidance of doubt, we find it opportune to reproduce the relevant parts of the GQJP which bears the heading "Special powers of the Justices assigned to District Court houses". Despite the suggestive nature of the heading, we understand that, following subsequent changes in the law, primary court magistrates are equally assigned as Justices of 20 Peace and therefore, the GGJP applies to them as well. The relevant parts of pages 4, 5 and 6 of the GGJP read: "6. Special powers of Justices assigned to District Court - houses. (A) A Justice assigned to a District Court-house may take and record the confessions o fpersons in the custody o f the police. A prisoner wishing to make a statement may be brought to the office o f a justice under police escort and usually bearing a letter from the Off/cer-in-Charge, Police, to the effect that die accused, who is under arrest in connection with an alleged offence, wishes to make a voluntary statement to a magistrate/Justice. On every such occasion, a Justice should take the following action, which should be recorded on foolscap paper: In the District Court of. at. Justice o f the Peace assigned to this District Court. (1) The prisoner....... is brought before me in police custody t ........... 0 ' at. Clock on.............(date). 21 (2) I am informed by the police that the prisoner is accused of...................................................... ...... and wishes to have a statement recorded. (3) The prisoner is placed in the custody of.......... (messenger) and the police are directed to leave the premises. Iam satisfied that there is no police officer in this office nor in any place where these proceedings can be seen or heard. (4) .................................. duty affirmed as interpreter between (Kichaga and Kiswahiii). Note: It w ill often be convenient to use the messenger guarding the prisoner as the interpreter. Unless the Justice speaks fluently the language o f the prisoner, an interpreter who does so should be used. (5) Theprisoner is informed thathe is before a Justice and askedif he wishes to say anything. He replies, "Yes", I wish to say something". (If the prisoner replies, "No", he should be returned at once to police custody). (6) I have, with the consent o fthe prisoner, examined his body. The result o f my examination is as follows:................................. .............. 22 Note: The recordshouldstate whetherany marks, bruises, cuts are noted and whether they appear to be old or recently caused. (7) The Justice should now ask the prisoner the following questions and record his replies thereto: Q: On what day and at what time were you arrested by the police? A: ............... Q: After you were arrested where were you taken by the police and where did you sleep until you were brought here before me? A: ................. (8) The Justice must now explain to the prisoner that he is free to make a statement or not, as he pleases, and he should next ask the prisoner the following questions and record his replies thereto: Q: Has any person by any threat or by any promise orby any violence towardsyoupersuaded you to come here to make a statementbefore me? A: ................. Q: Do you really wish to make a statement to me o fyour own free will? A: ............... Q: You understand that if you make a statement, it will be recorded and may be used as evidence later when you are brought to trial? A: ...................... 23 I have questioned the prisoner and after careful consideration o f his replies, lam satisfied that he is a free agent and that the statement he makes is a voluntary one and that he has not been forced to make it by threats or any other means. Justice Date.............................. (9) The prisoner is asked: "do you wish to make a statement?". Reply: "Yes, I wish to say...................................................... ...... (the exact words o f the prisoner must be recorded) (Signature or R.T.M o fprisoner) I believe that thisstatement was voluntarily made, it was taken down in my presence and hearing and was read over to the prisoner making it and agreed by him to be correct and it contains a full and true record of the statement made by him. Signed............................. Justice Date............................... 24 Signature o f the interpreter, (if used) Date.................................. Note: Once theprisonerstarts to make his statement, the Justice should not intervene in any way until he has finished. The Justice when recording the statement o f the prisoner must not ask any question except where essential for the sake o f clarification: example: "I was at a beer drink": deceasedandA ii were there. Theyshouted at me. He then hit me with his beer mug". The Justice could property ask the prisoner who "he" was. (10) The accused is returned to police custody: Signed...................... Justice Date....................... Note: The recorded statement should be given as soon as possible to the court clerk o f the District Court. It is appreciatedthat the procedure in taking a confession is a lengthy one: The Justice willhave much to write down. This is essential so that the record may show conclusively that the statement made was really a voluntary one. Some District Courts will have cyclostyled forms including paragraphs 2,3,5,6, 7 and 8: this w ill save time in writing, but if used must be 25 carefully and fully complied with by Justices." [Emphasis supplied]. The centre of dispute in this matter was on the reading out of the recorded statements to the appellants after the recording. Whereas Messrs. Kange and John asserted that, the statements were invalid for failure to read them out and sought refuge in Chamuriho Kirenge @ Chamuriho Julius (supra), Ms. Kihwelo was of the view that, reading out of the recorded confession statement is not a legal requirement and encouraged us to follow our decision in Hamis Chacha Wisare (supra). In Chamuriho Kirenge (supra), this Court referred to its earlier decisions in Peter Charles Makupila @ Askofu; Japhet Thadei Msigwa (supra); Musa Mustapha Kusa and Another v. Republic, Criminal Appeal No. 51 of 2010; and Bulabo Kabelele and Mashaka Felician v. Republic, Criminal Appeal No. 224 of 2011 [both unreported], to conclude that: "There is no dispute thatnowhere in the document at issue was it indicated that the document was read over to the appellant after PW6 had finished recording the statement It is crystal dear from the quoted provision that reading over the 26 document is mandatory. It seeks to verify the correctness o f the recorded statement lest some words might be imputed on the appellant's mouth to incriminate him. Looking at the essence o f the rights the provision seeks to protect, it cannot be said in our view, that the omission is among those which are curable undersection 169 o fthe CPA as submitted by Mr. Nchanila." In Hamis Chacha Wisare, the Court considered Peter Charles Makupira @ Askofu (supra) and took the view that, retracted confession statements could be relied upon even without being read over after being recorded. From the onset, it should be noted that the facts obtained in Hamis Chacha Wisare (supra) are distinguishable from the present scenario. In that case, the retracted confession statement was corroborated by the circumstantial evidence on record but in this case the statements are stand-alone pieces of evidence, uncorroborated and lacking certification by the justice of peace. Our careful reading of the GGJP as reproduced above, particularly at paragraph 9 thereof, unveil that, it is a mandatory requirement for the Justice of Peace, to certify under his hand and signature that, the recorded statement was read over to the suspect making it and agreed by him (the suspect) to be correct and contains a full and true record of the statement made by him. In light of that legal stance, our examination of exhibits P4 and P5 as appearing at pages 152 to 157 of the record reveals that, the justice of peace (PW6) did not certify under his hand and signature that, the two statements were read over and explained to the first and second appellants after they were recorded before him. Apart from that, it is evident that the forms used to record the extra judicial statements were not in conformity with the GGJP and perhaps led to the confusion. In future, it is crucial for the justices of peace to comply with the GGJP in recording extra judicial statements. Given that trial judges and magistrates work on the already recorded extra judicial statements, they should be cautious to ensure that the forms used to record the statements are compatible with the GGJP. In view of these findings, we believe, it is not out of place to draw the attention of the Rules Committee to advise the Honourable Chief Justice on redrafting the standard form in accordance with the GGJP. In this state of affairs, we go along with our previous stance that, the omission to read over the statements was fatal as the requirement is intended to verify the correctness of the recorded statements and avoid unfair incrimination of the suspects. Since the omission is not curable under section 169 of the CPA, exhibits P4 and P5 are hereby expunged from the record. This conclusion takes us to the next issue on whether from the evidence on record an inference can be drawn that the appellants were authors of the fatal attacks that ended the life of the deceased. Having expunged exhibits P3, P4 and P5, we are left with exhibits PI (the post­ mortem examination report) and P2 (the sketch map) which are incapable of resolving the appellants' culpability to the death of the deceased. The next question is whether the circumstantial evidence on record is capable of proving the charge. The test to be applied where a conviction is based on circumstantial evidence was laid down in the case of Kipkering Arap Koske v Rex [1949] EACA 135 where the Court of Appeal for Eastern Africa held that in order to justify, the inference of guilt, on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of his guilt. 29 That principle was followed in Republic v. Kerstin Cameron [2003] T.L.R 84 where this Court established that, to ground a conviction on circumstantial evidence: the evidence must be incapable of more than one interpretation; the facts from which an inference of guilt or adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must clearly be connected with the facts from which the inference is to be drawn or inferred; and; in murder cases, evidence should be cogent and compelling as to convince a jury, judge or court that, upon no rational hypothesis, the facts cannot be accounted for anything other than murder. In the instant case, it was the reasoning of the trial Judge that PW1, PW2, PW3 and PW4 did not lead any tangible evidence sufficient to establish the prosecution case. We cannot fault him on this conclusion featuring at page 176 of the record. The learned trial Judge further concluded that, as opposed to the evidence of the first four prosecution witnesses, the oral testimonies of PW5 and PW6, carried significant weight in establishing the charge. With due respect, we do not agree with that line of reasoning. PW5 F 9940 D/SGT Peter, was the police officer who recorded the first appellant's cautioned statement (exhibit P3) and PW6 Bittony Henry 30 Mwakisu was the Justice of Peace who recorded the extra judicial statements, exhibits P4 and P5. Their testimonies mainly centred on the manner of recording the retracted confession statements and contents of those documents. Having expunged exhibits P3, P4 and P5, we see no relevance on the evidence of these two witnesses towards connecting the appellants to the charge. In the circumstances, the prosecution case did not conclusively exclude the possibility that the fatal attacks could have been committed by a person or persons other than the appellants. It was not proved to the hilt that, the first appellant's suspicious movements at the compound of the deceased had any connection with the attack. Equally, it was not established that, the second appellant was responsible for the death of his sister. It is settled law that, suspicion, however great, cannot be a basis to found conviction. In the premises, we fully agree with the learned counsel for the appellants that, the prosecution failed to prove its case against the appellants to the degree required in law, beyond any reasonable doubt. 31 Accordingly, we allow the appeal, quash the conviction and set aside the sentence. We order that the appellants be released from prison forthwith unless otherwise lawfully held. DATED at MWANZA this 5th day of June, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 6th day of June, 2024 in the presence of the 1st and 2nd Appellants appeared in person and Ms. Jaines Kihwelo, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original.