CRIMINAL APPEAL NO 487 OF 2020 SIMON GABRIEL ANOTHER VS REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CORAM: MWANDAMBO. J.A.. MASHAKA. J.A. And MDEMU. J.A/l CRIMINAL APPEAL NO. 487 OF 2020 SIMON GABRIEL .......... ................................... 1st APPELLANT SAGENDA BUGALAMA........................................ ....... 2nd APPELLANT VERSUS REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) ( Manvanda. J.) dated the 14th day of August, 2020 in Criminal Sessions Case No. 135 of 2015 JUDGMENT OF THE COURT 15th& 23rd July, 2024 MWANDAMBO. J.A.: Simon Gabriel and Sageda Bugalama (first and second appellants respectively) were aggrieved by the conviction on the offence of murder in Criminal Sessions Case No. 135 of 2015 before the High Court (Manyanda, J.) sitting at Mwanza vide judgment delivered on 14 August, 2020. They have now preferred the instant appeal to vindicate their innocence. Before the trial court, the appellants and one Mayunga Magiki (deceased) stood charged with the offence of murder of William Mussa allegedly occurred on 26 June, 2010. It was alleged in the particulars of the offence that the appellants and Mayunga Magiki on 26 June, 2010, at a place called Lunele within Kwimba District, Mwanza Region, did murder the deceased. The second accused died before standing trial before the High Court and his case marked abated. The facts from which the appellants were arraigned and charged for the offence of murder can briefly be narrated as follows: Before he met his death on 26 June, 2010, the deceased was a resident of Ngudu in Kwimba District. The deceased visited his uncle; Gabriel Fung'ho (PW3) at Lunele, in the same district on an unknown date. PW3 had an outer house at some distance from his compound which he had his son, Janga Gabriel and grandchildren including Emmanuel Simon (PW1) and Tiga Marco (PW2) slept. That is the same house in which the deceased slept throughout his visit until when he met his unnatural death allegedly in the hands of the appellants and the deceased Mayunga Magiki. Apparently, the first appellant was one of the sons of PW3. In the night of 26 June, 2024, 2 as usual, Samweti Emmanuel (PW1), Tiga Marco (PW2), Msafiri and William Mussa (deceased) slept in the said house which was a small structure comprising a sitting room and bed room which Janga Gabriel occupied alone while the rest occupied the sitting room on empty sacks as their mats. It was common ground that the house had one entrance door covered by a door shutter made of reeds. It was common ground too that the door to the bedroom had no door shutter. As the occupants of the house were asleep, two people invaded them after opening the door attacking the deceased by hitting him using an iron pestle. PW1 and his co-occupants in the sitting room fled to the bedroom for their rescue where they hid behind rice sacks but peeping through the open door allegedly witnessing what was happening in the sitting room. It was alleged that they identified the first appellant who was PW l's paternai uncle and one Mayunga as the culprits who had attacked the deceased. They claimed to identify the assailants through light illuminated by full bright moonlight from outside penetrating through the open door. The story by PW1 and PW2 had it that, after killing the deceased, the first appellant lit a matchbox through which they were able to see him and his colleague threatening to kill them also had they disclosed the incident to anyone. Within moments, the assailants are said to have stuffed the deceased's body into a polythene bag commonly referred to as 'Kiroba' before leaving to an unknown place. Subsequently, on 30 Jume 2010, to be exact, the deceased's body was eventually discovered at River Ndagwasa. Earlier on, before the appellant and their companion invaded the deceased, PW3 allegedly met them near his house and threatened him to lie down. According to PW3, although it was dark at that time, he was able to identify the second appellant, a resident of Bushiri village and his companion, Mayunga included, because all were familiar to him. It was during such encounter, PW3 stated, the assailants told him of their mission to kill the deceased who had a quarrel with his younger brother one Sabuni Fang'ho. Scared of the threat of being killed, PW3 rushed to his house for his safety. The following day, PW2 informed PW3 about the disappearance of the deceased with his bicycle before PW3 reported the missing of his deceased nephew. Later on, the body of the deceased was discovered at River Ndagwasa with the involvement of the local vigilante commonly known as "sungusungu" and the police represented by No. F 56 Detective Staff Sergeant Jones (PW5). Donalt Malekelo (PW4); a clinical officer who examined the deceased's body observed that the body had started decomposing with injuries on the back. PW4 posted his findings in the post-mortem report admitted as exhibit PI revealing that the cause of death was excessive bleeding due to the injuries he had sustained. According to PW1 and PW2, they saw only two of the culprits namely; the first appellant and the deceased Mayunga at the scene of crime. The second appellants involvement in the crime was through the evidence of PW3 and his cautioned statement recorded from him by PW5 admitted in evidence as exhibit P2. Initially, its admission was objected for being recorded beyond 4 hours contrary to section 50 (1) (a) of the Criminal Procedure Act (the CPA) thus affecting the maker's voluntariness. However, the trial Judge overruled it having satisfied himself that the delay in recording it was excusable and thus cured by section 50 (2) (a) of the CPA. Despite the appellants distancing themselves from the death of the deceased, the trial court found established beyond reasonable doubt that they were responsible for the deceased's death with malice aforethought. In convicting the appellants, the trial court relied on the evidence of PW1 and PW2 as eye witnesses whose evidence of identification of the first appellant was found to be watertight through full bright moonlight considering that they were familiar to the first appellant and the deceased Mayunga. As for the second appellant, the trial court was satisfied that, his cautioned statement (exhibit P2) as a confession to the killing revealed nothing but the truth. The trial court found the confession correlating with the oral testimonies of PW1, PW2 and PW3 on the circumstances behind the killing implicating the first appellant as well as the deceased Mayunga. Having found that the prosecution proved its case beyond reasonable doubt, the trial court found the appellants guilty, convicted them as charged followed by the mandatory death sentence. The appellants have resented the decision of the trial court. They have appealed vindicating their innocence upon a memorandum of appeal comprising 8 grounds of appeal on several areas of complaint. However, before the commencement of the hearing of the appeal in earnest, Messrs. Emmanuel John and Masoud Shaibu Mwanaupanga, learned advocates representing the first and second appellants respectively, informed the Court of their agreement with the appellants to abandon grounds 2, 4, 5, 6, and 7 in the memorandum and argue the remaining grounds 1, 3 and 8. The appellants who were present in Court confirmed that agreement. The complaints in the remaining grounds as renumbered are faulting the trial court for: 1. Failure to discuss the wide question o f the appellants identification whether or not the circumstances were conducive for a proper and reliable identification. 2. Error in grounding conviction on the cautioned statement (exhibit P2) recorded in contravention o f section 50 o f the CPA as the second appellant was not a free agent 3. That the case against the appellants was fabricated and not proved beyond reasonable doubt Mr. John argued ground one which had overlapping aspects in ground three. The substance of the learned advocate's submission resided in faulting the finding of the learned trial Judge for acting upon weak evidence of identification in convicting the first appellant. He made several arguments in an attempt to fault the trial court's finding and reasoning. One, contradiction in the evidence of the eye witnesses that is, PW1 and PW2 on how they identified the first appellant. Two, conditions for unmistaken identity were not met particularly the source and intensity of light which enabled them to identify the assailants in the light of the tests for a positive identification discussed in Waziri Amani v. Republic [1980] T.LR. 250 referred by the Court in Juma Rubinza Buguhe v. Republic (Civil Appeal No. 114 of 2020) [2023] TZCA (22 September 2023) TAN2LII to which reference was made in the course of hearing. Elaborating on this, counsel argued that, none of the witnesses gave evidence of the time spent under observation with the culprit which was critical to their evidence. Submitting further, it was contended that, although both PW1 and PW2 said that full bright moonlight was their main source of identification, PW1 testified that he was able to identify the first appellant through light from a matchbox he lit in the room. Counsel argued further that, had there been enough light from the moonlight, there was no need for the first appellant to use a matchstick light. Three, it was contended that, whereas PW1 and PW2 escaped to the bedroom where Janga Gabriel was sleeping, they gave contradicting versions on the source of light in that room. This is so, he argued, according to PW1, light from the moonlight penetrated into the room but PW2's evidence was that the room was dark. Counsel urged that, such contradiction dented their credibility citing Juma Lubinza (supra) and Jaribu Abdallah v. Republic, [2003] T. L. R. 217 as authority for that proposition. On the other hand, counsel attacked the witnesses' credibility as dented by their unexplained delay to report the fateful incident. Instead, it was urged, PW2 reported to PW3 the next morning about the disappearance of the deceased and his bicycle and not the incident. So did PW3 to the Hamlet Chairman which was suggestive of concealing the truth behind the deceased's death. In elaboration, the learned advocate linked PW3's concealment of truth behind the deceased's death with his arrest by PW5 and release thereafter on the one hand and the prosecution's failure to call his son; Janga Gabriel who slept in the same house on the material night as a witness. On the other hand, it was submitted that, the failure warranted the trial court taking adverse inference in the prosecution case. On the basis of the foregoing, the Court was invited to find merit in ground one and three and allow them. Submitting in reply, Ms. Revina Tibilengwa, learned Principal State Attorney assisted by Mr. Adam Murusuli, learned State Attorney representing the respondent Republic, impressed upon the Court to 9 find the evidence by PW1 and PW2 sufficient to ground conviction against the first appellant which the trial court was satisfied that it passed the test of watertight identification evidence. Counsel pointed out and no doubt right that PW l's and PW2's identification was by recognition of a familiar culprit. The learned counsel pointed out several aspects favouring positive identification as found by the learned trial Judge, that is to say; (1) source of light by way of full bright moonlight penetrating through an open door into the sitting room; (2) small size of the room which was conducive to an unimpeded observation of the assailants in relation to the place where the identifying witnesses took refuge; bed room used by Janga Gabriel; (3) subsequent lighting of a matchstick allegedly by the first appellant. On the other hand, the learned Principal State Attorney discounted the argument by Mr. John that the credibility of the eye witnesses was dented by reason of contradiction in their evidence as well as their failure to report the incident and the assailants to other persons at the earliest possible opportunity. It was argued that, since the trial court found the two witnesses credible, it was not open for the appellants to challenge that finding. As to failure to report the 10 incident, Ms. Tibilengwa argued that the evidence reveals that PW2 reported it to PW3 who in turn reported to the Hamlet Chairman the following day. On the sufficiency of the light illuminated by moonlight, the learned Principal State Attorney urged us to find it so on the authority of the Court's decision in Chacha Jeremiah Murimi and Others v. Republic (Criminal Appeal No. 551 of 2015 [2019] TZCA 52 (4 April, 2019) TANZLII. She concluded by imploring us to dismiss this ground as baseless. As the learned counsel agree on the conditions for the quality of evidence of identification, the nagging issue in this ground is whether the finding by the trial court that the prosecution proved that the first appellant was properly identified was supported by evidence on record. Before determining that issue, we find it apposite to reiterate the obvious in relation to evidence of eye witnesses. We can do no better than refer to our decision in Philimon Jumanne Agala@J4 v. Republic, Criminal Appeal No. 187 of 2015 (unreported) in which the Court engaged itself in some detail drawing lessons from other jurisdictions on the challenges and risks associated with the evidence of identifying witnesses. We find it desirable excerpting here observations from the case of State of li Utah v. Deon Lomax Clopten, 223 P3d 1103 (2009) 2009 UT 84 quoted in that decision thus: "The vagaries o f eyewitness identification are well known; the annals o f criminal law are rife with instances o f mistaken identification. ... Decades o f study...have established that eyewitnesses are prone to identifying the wrong person as the perpetrator o f the crime where certain factors are present.... The most troubling dilemma regarding eyewitnesses stems from the possibility that an inaccurate identification may be just as convincing to a jury as an accurate one ... As one leading researcher said: "There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says: that's the one" Elizabeth F. Loftus, Eyewitness Testimony 19 (1979). The kind of evidence of identification in this appeal was by recognition since it was not disputed that the two eye witnesses were familiar to the first appellant. Applying the foregoing to the instant appeal, there is no dispute as to the proximity between the identifying witnesses and the 12 culprits. There is hardly any dispute that it took some time for the bandits to attack the deceased before they had his body stuffed in a sack before departing to an unknown place during the night. What is in dispute is the light that enabled the witnesses to identify the first appellant in dark rooms. While it cannot be seriously doubted that there was moonlight on the material night, the dispute lies in its ability to penetrate into a dark room through an open door and enable the eye witnesses from their hideout in the bedroom behind sacks of rice to see and identify the culprits amidst the prevailing horror considering their young age and the threat of being killed. Again, although it was not necessary to describe the culprit's physique and attire he wore on the material night given the nature of identification by recognition, none of the witnesses attempted to describe the first appellant on his appearance and if so, if his face was not covered. In our view, that would have lent credence to the evidence of the eye witnesses and eliminate any possibility of mistaken identity. That is so mindful of the caution sounded by the Court in various decisions in particular, Philimon Jumanne Agala (supra) on the vagaries of eye witnesses on identification and the need for courts to act cautiously upon being 13 satisfied that such evidence is free from blemishes. It is instructive that, in Agala's case the Court quoted extensively from Shamir John v. Republic, Criminal Appeal No. 166 of 2004 (unreported) in relation to the precaution courts should take in cases of evidence of identification. Part of what it said in relation to recognition is as follows: recognition may be more reliable than identification o f a stranger, but even when the witness is purporting to recognize someone whom he knows, the court should always be aware that mistakes in recognition o f dose relatives and friends are sometimes made. " Besides, as submitted by Mr. John, the witnesses' credibility was questionable in relation to their failure to report the incident. The best that PW2 did was to report to PW3 that William Musa was missing as well as his bicycle and not the incident of the killing and the responsible culprit. PW3 did alike to the Hamlet Chairman even though, if his evidence had anything to go by, the second appellant and his companion had informed him of their plot to kill his guest; the deceased the previous right. Obviously, we find it difficult to take PW3 seriously in this regard. It defies common sense and indeed 14 unusual for a person to disclose his plan to kill another person more so to a close relative as it were. As submitted by the learned advocate for the first appellant, there was concealment of truth on the circumstances behind the deceased's killing by PW3 and his grandchildren (PW1 and PW2). For instance, whereas both witnesses testified that, Janga Gabriel occupied the bedroom to which they took cover after the invasion of the house, there is no explanation whatsoever why such person who was older than PW1 and PW2 was not called to testify. There is yet another aspect in the eye witnesses' evidence regarding what transpired after the killing. This relates to the cleaning of blood on the mats and surface by unknown people. It does not occur to us that strangers could have entered the house small as it was unnoticed and clear the mess allegedly because the witnesses were already asleep. On the whole, we find ourselves constrained to disagree with Ms. Tibilengwa in support of her submission that the witnesses were indeed credible as found by the trial court. On our own evaluation of the evidence, we have found such finding unsupported by the evidence on record. In the upshot, we allow this ground. 15 Mr. Mwanaupanga addressed the Court on the remaining grounds beginning with ground 3; whether the prosecution proved its case beyond reasonable doubt. Counsel faulted the second appellant's conviction based on weak evidence of identification by PW3. This is so because, one, the alleged meeting with six people, the second appellant included mentioned by PW3 occurred during night in darkness but PW3 who said that the second appellant was a resident of Bushiri village, did not explain how he knew him and how close he was to him to be able to identify him in such circumstances. Two, PW1 and PW2 did not identify the second appellant at the scene of crime on the material night thereby making PW3's identification worthless. For her part, Ms. Tlbilengwa argued that, although the second appellant was not identified at the scene of crime, he confessed to the offence in his cautioned statement admitted as exhibit P2. We have to dispose this ground right away in relation to the second appellant that, notwithstanding PW3's claim that he identified the appellant near his home on their way to kill the deceased, his evidence cannot stand in the express evidence by PW1 and PW2 who denied having seen him at the crime scene on the material night. Ms. 16 Tibilengwa appeared to concede as such but maintained that his conviction was nonetheless proper on the basis of exhibit P2 to which we shall turn our attention shortly. Regarding ground two, Mr. Mwanaupanga was emphatic that the second appellant's conviction relying on exhibit P2 was faulty notwithstanding the trial court's reasoning in admitting it in its ruling on the objection against its admissibility predicated upon section 50 of the CPA. Counsel urged that, there was no explanation whatsoever in PW4's evidence on what transpired between 1 and 3 July 2010 after the second appellant's arrest and kept in police restraint justifying the trial court's resort to section 50 (2) (a) of the CPA thereby admitting in evidence the second appellant's cautioned statement. For his part, Mr. John who chipped in to lend support to Mr. Mwanaupanga on this ground sought reliance from the Court's decision in Manoja Masalu and Another v. Republic, (Criminal Appeal No. 143 of 2020) [2024] TZCA 409 (6 June, 2024) TANZLII for the proposition that, exclusion of time under section 50 (2) (a) of the CPA must be based on the evidence led by the prosecution and not otherwise. In this case, he argued, there was no such evidence 17 from PW5 justifying such a course of action contrary to the trial court's reasoning. Ms. Tibilengwa downplayed the submissions arguing as she did that, the trial court rightly invoked section 50 (2) (a) of the CPA upon evidence from PW5 that the delayed recording of the second appellant's cautioned statement on the ground that investigation was still on going. She sought refuge from the Court's decision in Yusuph Masalu @ Jiduvi v. Republic (Criminal Appeal No. 163 of 2017) [2018] TZCA 609 (13 March, 2018) TANZLII to reinforce her argument on the justification to invoke section 50 (2) (a) of the CPA. On the other hand, the learned Principal State Attorney contended that, the trial court rightly admitted the second appellant's cautioned statement relying on section 169 (2) of the CPA discussed in the Court's decision in Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 (unreported) for the proposition that, not every non- compliance with admission of evidence renders it fatal to the prosecution case it being dependent on the nature of the case, gravity of the offence and complexity of investigation. It was argued that, in this appeal, the case involved a capital offence and that in any case, exhibit P2 was corroborated by the oral evidence through PW1 and PW2 on the circumstances behind the incident. She thus urged the Court to dismiss the second ground and ultimately the appeal in its entirety. Having heard rival arguments from the learned counsel on this ground, there is no dispute that, PW5 recorded exhibit P4 beyond 4 hours basic period available for interviewing a suspect under restraint upon his arrest in terms of section 50 (1) (a) of the CPA. It is common ground that, the second appellant was put unrestraint on 1 July, 2010. His statement was recorded by PW5 on 3 July, 2010 at 11:21 hours. Ordinarily, PW5 was under a legal duty to seek extension of time from the Police Officer In-charge within which to do so in pursuance of section 51 (1) (a) of the CPA for 8 more hours failing which, seek extension of time before a magistrate in terms of section 51 (1) (b) of the CPA. This they did not do and proceeded to record it on 3 July, 2010; 72 hours from the time the second appellant was put under restraint by the police at Hungumalwa Police Station. It is instructive that the second appellant's objection to admission of the cautioned statement was predicated upon section 50(l)(a) of the CPA but the trial Judge overruled it on the ground 19 that that the prosecution sufficiently explained the delay warranting invocation of section 50(2) (a) of the CPA for the purposes of excluding the time necessary for conveying the suspect to a police station or any other place for purposes connected with the investigation of the crime. There is hardly any dispute and indeed founded upon common sense and logic that to avail itself of that benefit, there must be evidence that the suspect could not be interviewed earlier because the investigation was on going. This is what the Court said in Manoja Masalu and Another v. Republic (supra) cited to us by Mr. Mwanaupanga. The evidence the trial court relied on in sustaining the respondent Republic's argument that the investigation was on going is found at page 55 and 56 of the record of appeal running as follows: "We arrested the suspects with the help o f villagers. We took the arrested person to Hungumalwa and others to other police stations for investigation. Gabriel Fung'ho and Sagenda were left: at Hungumalwa. We took Simon Gabriel to Ngudu Police Station Mayunga Magiki was taken to police post at Nyambiti, Sagenda was arrested at Bushiri Village because he was mentioned by 20 Gabriel Fung'ho as one o f the persons who am bushed Gabriel Fung'ho and threatened him telling him that they were going to kill William Mussa on the night o f that day. We then continued to follow for other persons named to have been involved in the murder. On 01/7/2010 we arrested Gambai Ng'wandu at Lunele village who admitted to know the incident but implicated Sagenda Bugalama as the one who killed the deceased and another Mageni Lutimika and Joto Kisida and others who were not found, on 03/07/20201 followed Sagenda Bugalama from Hungumalwa Police Station and took him to Ngudu Police Station for interrogation." PW5's testimony reveals that the second appellant was arrested because he was mentioned by PW3 who was similarly arrested in connection with the deceased's death. It is equally evident that, on 1 July, 2010 the police arrested one Gambi Ng'wandu at Lunele village implicating the second appellant. All this time, the second appellant was under restraint at Hungumalwa Police Station while the first appellant was kept in custody at Ngudu Police Station. Yet, it took PW5 until 3 July, 2010 to fetch the second appellant from Hungumalwa to Ngudu Police Station for interrogation. One wonders, if two different persons had mentioned the second appellant as one 21 of the suspects, what more investigation did the police require to interrogate him? Assuming more investigation was required, the police had at its disposal section 51 (1) (a) and (b) of the CPA which, for no apparent reason, they did not avail themselves of and apparently, PW5 did not say anything in that regard. In any event, as submitted by the appellant's counsel, PW5 did not account for what transpired on 2 July, 2010 before taking the second appellant to Ngudu Police Station on 3 July, 2010 for interrogation at 11:27 hours as shown at page 111 of the record. We respectfully agree with Mr, Mwanaupanga that, the unexplained delay in recording the cautioned statement from the second appellant impacted on the voluntariness of his statement. In the absence of any evidence from PW5 behind the delay coupled with the failure by the police to make use of the provisions of section 51 (1) (a) and (b) of the CPA, it could not have been taken lightly by the trial court taking refuge from section 169 (l)a and (2) of the CPA and Nyerere Nyague's case. Neither do we agree that the irregularity was minor as urged by Ms. Tibilengwa regardless of the seriousness of the offence. Besides, the evidence on record shows that the investigation involved one or two neighbouring villages considering that, at least 22 two people had mentioned the second appellant on 1 July, 2010 as one of the culprits. Failure to interrogate him at Hungumalwa Police Station within the prescribed period was wholly unjustified and incapable of invoking section 50 (2) (a) of the CPA. As we have held in numerous decisions, failure to interrogate a criminal suspect within the prescribed period renders the statement so recorded inadmissible in evidence. See for instance: Christopher s/o Chengula v. Republic, Criminal Appeal No. 215 of 2010 and Azizi Mohamed and Another v. Republic, Criminal Appeal No. 15 of 2005 (both unreported). With respect, the learned trial Judge made an error in relying on an irregularly admitted evidence in exhibit P2. Consequently, as urged by Mr. Mwanaupanga, we expunge exhibit P2 from the record. Having expunged exhibit P2, there will be no evidence to link the second appellant with the murder of the deceased William Mussa. The net effect of the above is that ground two is found to be merited and we allow it. In the light of the foregoing, we find merit in all grounds of appeal resulting into quashing the finding of guilt made by the trial court and substituting it with a finding of not guilty being satisfied that the prosecution evidence did not prove its case beyond 23 reasonable doubt. Having so held, we quash the convictions and set aside sentences of death meted on them. In the event, we allow the appeal and order that the appellants shall be released forthwith from custody if not held therein lawfully on another cause. DATED at MWANZA this 19th day of July, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 23rd day of July, 2024 in the presence of Mr. Kasimu Gilla, holding brief for Mr. Emmanuel John, learned Counsel for the 1st Appellant also holding brief for Masudi Mwanaupanga for the 2nd Appellant, while Ms. Revina Tibilengwa Principal State Attorney for the Respondent, both via video conference from High Court at Mwanza, is hereby certified as a true copy of the original.