CRIMINAL APPEAL NO 470 OF 2020 BATULIMI MANUNDU VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA rCQRAM: WAMBALI. J.A., MASOUP, J.A. And ISSA, J-A.l CRIMINAL APPEAL NO. 470 OF 2020 BATULIMI MANUNDU..... .......................... .......................... APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Ismail, 3.1 Dated the 13th day of June, 2019 in Criminal Sessions Case No. 230 of 2015 JUDGMENT OF THE COURT 9th & 19th July, 2024 MASOUD, J.A.: Batumi Manundu, the appellant in this appeal, was convicted of * murder contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2019 now R.E. 2022] and sentenced to death by hanging by the High Court of Tanzania at Mwanza. The trial court which found the appellant guilty as charged was satisfied that the allegation levelled against the appellant that he was the one who killed John Aron (the deceased) on the fateful day of 13thAugust, 2013 was proved beyond reasonable doubt. The prosecution case rested on four witnesses as against a single defence witness who was none other than the appellant himself, whose evidence simply distanced himself from the offence. The substance of the evidence was, according to Sikitiko Ndarigile (PW4), that on 13th August, 2013, the appellant left with the deceased alive having asked the latter to accompany him. This evidence was echoed in the testimony of G 8751 D/C Salum (PW1) and Hamad Hussein (PW2) who interviewed and recorded the appellant's cautioned statement (exhibit PI) and extra-judicial statement (exhibit P2) respectively. Thus, according to PW1 and PW2 and exhibits PI and P2, the appellant had admitted to have left with the deceased alive on the material day for Majengo, where there were abandoned open-pit mines, having asked him to see if he could, with the aid of his gold detector device detect gold for him. It is born out of such evidence that while at the intended destination in one of the pits, the appellant admittedly killed the deceased and robbed of his gold detector device. It is in the evidence of PW1 and PW4 that upon being arrested at Kibondo on a date that PW1 could not recall, the appellant was found in possession of the said gold detector ' ■* t t* £ device belonging to the appellant which was however not tendered in evidence at the trial. The incidence of disappearance of the deceased having last been seen with the appellant was, pursuant to the evidence of E 199 Sgt Makongoro (PW3), reported to the police by the deceased's mother on 14th August, 2013. According to PW3, the deceased's mother, however, had it that the deceased had left for the open-pit gold mines on the fateful day with his colleagues. It was on 19th August, 2013 that the body of the deceased, according to PW3, was recovered at Kaseme Village within Geita District in Geita Region and he saw the body after it had already been recovered and taken out of one of the pits by villagers and laid on the ground. The body of the deceased was then identified, according to PW3, by his mother who had earlier reported about his disappearance. PW4 also testified to have identified the body of the deceased which by then had already started to decompose. In the evidence of PW3, the body was thereafter taken for examination as to the cause of the death, although the report to that effect was not tendered in evidence. It is on the substance of the foregoing evidence that the trial Judge grounded the conviction and sentenced the appellant to death by hanging. The trial Judge arrived*at that decision as he was satisfied that the defence evidence did not at all raise any doubt to the prosecution case which, ■; . - J1 | » . < J .1 according to him, rested on circumstantial evidence as well as cautioned and extra-judicial statements (exhibits PI and P2), and which evidence proved the accusation against the appellant in accordance with the requirement of the law. Aggrieved by the conviction and sentence, the appellant lodged his appeal in this Court raising a total of eight grounds. He also, subsequently, lodged a supplementary memorandum of appeal consisting of three grounds. When the appeal was called on for hearing, the appellant, led by Mr. Vedastus Laurian, learned advocate who represented him, aligned and condensed the grounds of appeal, with the agreement of Mr. Daniel Masambu, learned State Attorney for the respondent Republic, into three main grounds of complaint as follow: Firstly, the trial Judge erred in law and in fact in admitting and using exhibit PI and P2 which ought not to be relied and acted upon to ground conviction; secondly, the trial Judge erred in law and in fact in using the evidence of PW2 which ought not to be relied and acted upon to ground conviction and; thirdly, the trial Judge erred in law and fact by failing to find that the prosecution case was not proved beyond reasonable doubt. On the first and second grounds of complaint; the argument of Mr. * ' 1 V i ■>» ' ! S - ‘ , ■ Ui ‘I J i l t ii l I t Laurian, which was conceded to by Mr. Masambu, was that exhibits PI and P2 and the evidence of PW2 should not have been relied and acted upon to ground the conviction as they were received in contravention of the law. Mr. Laurian relied' on the cases of Hamisi Meure v. Republic [1993] T.L.R. 2013, Ronjino Ramadhani @ Ronjo v. Republic (Criminal Appeal No. 75 of 2019) [2021] TZCA 288 (12 May 2021, TANZLII); and -Francis Siza Rwambo v. Republic (Criminal Appeal No. 17 of 2019) [2021] TZCA 90 (9 April 2021, TANZLII). In relation to the exhibits, whilst mindful of the above authorities, it was argued by Mr. Laurian and agreed upon by Mr. Masambu that their contents were not only not read over during committal proceedings contrary to section 246(2) of the Criminal Procedure Act, Cap.20 (the CPA), but also, they were not read out when they were respectively admitted in evidence at the trial contrary to the principle obtaining in the ease of, among others, Robinson Mwanjisi and Others v. Republic [2003] T.L.R. 218. According to the learned advocate, the said exhibits ought not, for such reason, to be relied and acted upon by the trial court to ground the conviction. With respect'to exhibit PI, it was further argued and agreed upon by Mr. Masambu in reply that even if it were to be assumed j that, it was free from the above defects, it should not have been relied and acted upon because it was not recorded within'the basic period of four hours following the arrest of the appellant as required by section 50(2) of the CPA. They were both of that submission because there is on the record of appeal ,in their view no evidence of the prosecution as to when the appellant was arrested other than the uncontroverted evidence of the appellant that he was arrested on 2nd August, 2013 and that the statement was purportedly recorded on 3rd September, 2013. Thus, since there was no evidence on the contrary, it meant that the statement was recorded out of time and therefore not properly admitted and acted upon by the trial court. As to exhibit P2, it was argued also in relation to the second ground of complaint that it was recorded and tendered by PW2 who was neither listed as one of the intended prosecution witnesses nor was the substance of his evidence read out to the appellant during committal proceedings. As such, there was non-compliance with sections 246(2) and 289 of the CPA. On that account, both learned counsel were in agreement that neither PW2's testimony nor the exhibit that he tendered could be relied and acted upon as there was also no notice in writing by the prosecution to call PW2 as an additional witness. We, carefully, examined the record of appeal while mindful of the complaint that exhibits PI and P2 and the evidence of PW2 were received in contravention of the law. Indeed, the contents of page 50 through page f- - ji i j '-i. (*, ,•<>,,n : - .<*«■! 59 of the record of appeal are evident that exhibits PI, P2 and P3 were all admitted in evidence after being respectively tendered by PW1, PW2 and PW3 who testified for the prosecution at the trial. The record bears out that as was PW1 who tendered in evidence exhibit PI, PW2 also tendered 6 exhibit P2 to substantiate his testimony that the appellant confessed to the offence as charged. It is clear in the* record before us that having received the evidence of PW1 and PW2 and admitted in evidence the respective exhibits that they tendered, the trial Judge summed up the entire evidence to the assessors who were as a result of the opinion that the appellant was guilty as charged, save for only one who opined in favour of a lesser offence of manslaughter. The trialJudge in the end relying heavily on exhibits PI and P2 as well as PW1 and PW2 acted upon the evidence to arrive at a finding that the appellant was guilty as charged. As to whether or not the evidence of PW2 and the stated exhibits were respectively received and used at the trial in contravention of the law, we examined the record of the committal proceedings. Accordingly, the relevant part of the record of appeal running from page 34 through page 36 bears the list of witnesses whose statements were read and exhibits intended .to be used by the prosecution. In particular^ the record reads 'r 'lv ' >• tt i fi j t *1 V f . 'A thus: Court: Charge is read over and explained to the - accused who is not asked to piea s. 246 (1) & (2) o f the CPA complied with. Sgd 22/12/2015 State Attorney: Your Honour I have a list o f six statements o f witnesses intended to be caiied at the trial. Court: 1.Statement o f Aron s/o Hameyafyute read and marked S.1 2.Statement o f Sikitiko s/o Ndali read and marked S.2 3.Statement o f E199 Cpi Makongoro read and marked S3 4. Statement o f Charles s/o Mgiremema read and marked SA S.Statement o f Seifu s/o Shaba read and marked S.5 6.Statement o f G 8751 D/C Saium read and marked S.6 State Attorney: There will be the following exhibits: 1.Cautioned statement o f the accused\ 2.Extra judicial statement of the accused, s- 3.Sketch plan map o f the scene 4.Post mortem report. The exhibits are kept at the State Attorney's office. 22/12/2015 Court: The accused is addressed to s. 246(3) of the CPA before he replies: Accused: J wiii reserve my defence. List ofProsecution witnesses lA ron s/o Hameyafyute o f Kaseme village 2.Sikitiko s/o Ndaligive ofNyamahube village 3.E199 Cpi Makongoro o f kwangasa out post 4. Charles s/o Mgiremema o f Kaseme village S.Seifu s/o Shaba o f Mafengo-Kaseme 6.G 8751 D/CSalum o f Geita Sgd 22/12/2015 Accused: I have no witness to call for defence. Sgd 22/12/2015 Court: The accused Batulimi s/o Mahundi is hereby committed to High Court for trial at the nearest session. He shall be entitled to have a copy o f record o f the committal proceedings before the court, 5; 249(1) & (2) complied with. Sgd 22/12/2015 Order: until then, the accused is committed to remand. It is borne out of the above record that the appellant was committed to the High Court for trial on 22nd December, 2015. However, the record is clear and evident that the contents of exhibits PI, P2 and P3, though listed, were not read over to the appellant during committal proceedings before he was committed to the trial court. On the list of the intended witnesses appearing in the above excerpt, we could not find one, Hamad Hussein (PW2), who testified at the trial and tendered exhibit P2, as amongst those who were listed as intended prosecution witnesses and whose' statements or substance of their evidence were accordingly read over to the appellant during committal proceedings. Equally, our eyes could not find a notice in writing by the prosecution calling PW2 as an additional witness.pursuant to section 289 (1), (2) and (3) of the CPA. It is also plain that out of six (6) intended prosecution witnesses listed, it was only three witnesses that were called to testify in addition to PW2 who was, as already found, neither listed nor added as an addition witness nor had the substance of his evidence read over during committal proceedings. Thus, since the record is clear that the contents of the exhibits, though listed, were not read out and PW2 was not amongst witnesses listed and whose statements or substance of his evidence were read out during committal* proceedings, it cannot be said that the prosecution 10 complied with the law to entitle the trial court to rely and act .upon such exhibits and the evidence of PW2 to ground the conviction. In the.case of Jumanne Mohamed and 3 Others v. Republic, Criminal Appeal No. 534 of 2015 (unreported) where we had more or less similar situation as we are having,here, we held thus: "We are satisfied that PW9 was not among the prosecution witnesses whose statements were read to the appellants during the committalproceedings. Neither could we find a notice in writing by the prosecution to have him called as an additional witness. His evidence was thus taken in contravention o f section 289 (1) (2) and (3) o f the Act... In case where evidence o f such person is taken as is the case herein, such evidence is liable to be expunged.... We accordingly expunge the evidence o f PW9 including exhibits P6 and P7 from the record." On the above position, see also the cases of Masamba Musimba@Musiba Masai Masamba v. Republic (Criminal Appeal No. 138 of 2019) [2021] TZCA 270 (28 June 2021,. TANZLII); Malambi Lukwaja v. D.P.P (Criminal Appeal No. 71 of 2018) [2021] TZCA 57 (26 February 2021, TANZLII) and; Francis Siza Rwambo v. Republic ii (supra) in addition to other authorities which were herein above cited by the appellant in his written submissions adopted by the learned advocate. It follows from above that the exhibits and the evidence of PW2 were not part of the substance of the evidence that the prosecution intended to tender during the trial in terms of sections 246 (2) and 289 (1), (2) and (3) of the CPA. The exhibits as well as the evidence of PW2 were therefore wrongfully received as the prosecution did not fully comply with sections 246 (2) and 289 (1), (2) and (3) of the CPA. Such evidence was thus improperly relied and acted upon to.convict the appellant of the offence of murder as charged. We are, in this respect and for the above reasons, in agreement with both learned counsel. We, therefore, find merit in the first and second grounds of appeal. Accordingly, the evidence of PW2 as well as the stated exhibits are herein excluded from the record. We now turn to consider the third ground on whether the prosecution case was proved beyond reasonable doubt. After excluding the evidence of PW2, exhibit PI, exhibit P2 and exhibit P3, the remaining evidence is that of PW1, PW3 and PW4. The evidence of PW1 is that of the police officer who interrogated the appellant and recorded exhibit P4, which has herein above been expunged. The other evidence is that of PW3, a police officer who drew the excluded sketch map .of the scene of crime (exhibit P3), after the deceased's body had been removed from the 12 scene. He also testified that the deceased's mother reported to the police station about disappearance of his son. The last evidence is that of PW4 who testified that the appellant was the last person to be seen with the deceased alive. Apart from the remaining prosecution evidence, there is the defence evidence which distanced the appellant from the offence, saying that he was not at the scene as .he was in Kibondo when the incident occurred. In so far as the remaining evidence is concerned, Mh Laurian argued in relation to the third ground that it does not prove the prosecution case beyond reasonable doubt, for even the deceased's death itself was not supported by evidence of a medical doctor who examined the body of the deceased. He argued further that in so far as PW4 is concerned, his evidence in the circumstances required corroboration which is missing. In his7further view, the deceased's mother, one Juliet, who was alleged to have identified the body of the deceased was, as was the medical doctor who examined the body, not called as a witness. The failure to call them, he argued, entitles the Court to draw an adverse inference against the prosecution case relying on, among others, the case of Aziz Abdallah v. Republic. [1991] TL.R. 71. Consequently, it was his submission in a nutshell that the remaining evidence fell short of proving 13 the charge of murder against the appellant. He invited us to so find and proceed to allow the appeal. . Conversely, the learned State Attorney was of the view that since there were no properly held committal proceedings leading to the committal of the appellant for trial at the High Court, it follows that there was no proper trial of the appellant worth of a name and held in accordance with the law. He was of that view because the contents of the excluded exhibits and the substance of the expunged evidence of PW2 were not read over to the appellant during the committal proceedings. The way forward, according to the learned State Attorney, should be to nullify the entire proceedings and order retrial to be heid after proper committal proceedings held in accordance with the law. According to him, there is sufficient evidence to sustain the information of murder if retrial is ordered. With respect, we tend to disagree with the learned State Attorney. What we find from the record of appeal is the omission on the part of the prosecution to db What it was in the circumstances expected to do to have the listed exhibits read over to the appellant at the trial, and having PW2 listed as intended witness and the substance of his evidence read over to the appellant in accordance with sections 246(2) and 289(1), (2) and (3) of the CPA. Since that was not done, it means that the prosecution had no intention to rely on the evidence of PW2.and the exhibits at the trial. 14 Conversely, the record of the committal proceedings shows that the prosecution only intended to rely on the evidence of the listed witnesses whose statements were read over to the appellant during the trial, and not on the exhibits and the evidence of PW2 whose contents and substance of their evidence were never read over to the appellant.. It follows that, according to the record of proceedings of the committal court in the record of appeal, the cautioned- and extra judicial statements (exhibits PI -and P2), the sketch map of the scene of crime (exhibit P3) as well as the evidence of PW2 were not part of the substance of the evidence that the prosecution intended to tender and. rely on during the trial for they were not reflected in the,committal proceedings, . In bur view> the prosecution's omission cannot in the circumstances render the cdmmittar proceedings a nullity as is the subsequent trial of the appellant. We are of that view because it is clear in the record of appeal that the appellant was properly committed to the High Court for trial based on the material placed before the committal court. In the event, the failure to comply with the'provision of section 246(2) of the CPA in respect of the testimony of PW2 and the excluded exhibits was not caused by the committal court. We are in our finding in this respect guided by. the case of Fatehali Manji v. Republic [1966]' E.A. 343,?where the. defunct East African Court of Appeal stated: 15 "In general a retrial will be ordered only when the original trial was Illegal or defective; It will not be ordered where the conviction is set aside because o f insufficiency o f evidence or for the purpose of enabling the prosecution to fill gaps in its evidence at the first trial... each case must depend on its own .facts and circumstances and an order for retrial should only be made where the interests o fjustice require it " Guided by the above position of the law, we' find that the committal proceedings were not illegally conducted to warrant us to nullify the subsequent .proceedings of the trial as alleged -by the learned State Attorney. We, thus, 'decline the invitation to nullify therrf and order committal proceedings and retrial to be conducted afresh. The determination of this appeal therefore rests oh the remaining evidence on the record tendered at the triaL However, in our assessment of the’ remaining evidence of PW1, PW3 and PW4 which ' is wholly circumstantial, we5are settled that the totality of that evidence does not in our view irresistibly lead to the guilt of the appellant.- We recall that the appellant was^allegedly arrested in-possession of a gold detector, device belonging to the deceased., Surprisingly, such deviqe was neither identified as belonging, to the deceased nor tendered in evidence d order to link the 16 appellant with the commission of the offence. Worse still, the arresting police officer was, for no apparent reason, not amongst the prosecution i iw witnesses. ; The reliability of evidence of PW4 that the appellant was the last person to be seen with the deceased alive on the fateful day was questioned and dented by the trial Judge and we bn our part find no reason to fault his finding. In that respect, we are mindful of the principle obtaining in Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2001 (unreported) regarding the monopoly of the trial court on matters of credibility of a witness. Our finding is fortified by the evidence of PW3 that the deceased mother had reported to the police thatthe deceased hadon the fateful day left home with, his colleagues whom she did- not name to the police. .■ ; •. Thus, despite ;being suspicious that theremaining evidence seemingly casts on the appellant, it is in'itself hot conclusive proof that he is the one who killed the deceased. However, in the absence of other corroborating evidence, it is in our view unsafe to sustain the prosecution case against the appellant. We therefore find that the remaining evidence is insufficient to sustain.the case against the appellant beyond, reasonable doubt, although it established that: the deceased died an unnatural death. We equally allow the third ground of appeal. 17 In the end, we allow the appeal, quash the conviction and set aside the death sentence that was imposed on the appellant. We further order immediate release of the appellant from prison unless his continued incarceration is otherwise lawfully justified. DATED at MWANZA this 19th day of July, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 19th day of July, 2024 in the presence of Mr. Chiwalo Nchai Samweli holding brief for Mr. Vedastus Laurian, learned counsel for the appellant and Ms. Brenda Elisha Mayalla, learned State Attorney for the respondent/Republic, is hereby certified as a