hamis juma chaupepo chau vs republic 2020 tzca 243 21 may 2020

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA. J.A.. MWANGESI. 3.A. And SEHEL. JJ U CRIMINAL APPEAL NO. 95 OF 2018 HAMIS JUMA CHAUPEPO @ CHAU............................................... APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) ( Mwandambo. 3.1 dated the 9th day of March, 2018 in HC Criminal Session Case No. 21 of 2013 JUDGMENT OF THE COURT 12th May, & 21st 2020 SEHEL. J.A.: This is a judgment on appeal against the conviction of murder and a sentence to suffer death by hanging imposed to the appellant by the High Court of Tanzania sitting at Dar es Salaam District Registry (the trial court). According to the Information filed at the trial court, Rashid Hamis Mohamed @ Niga who stood trial together with the appellant were alleged l to have murdered one Reuben Erasto on 7th January, 2008 at Magomeni Mikumi Jaba area within Kinondoni District in Dar es Salaam. The evidence adduced to the trial court were that: on 6th day of January, 2008 at/around 21:00 Hours, Athumani Said Masenene (PW6) was returning home from Ilala on a bicycle to Magomeni. Upon reaching at Jaba area, he saw a group of people standing. As he moved closer and with the aid of street lights that were on each side of the road illuminating the area, he managed to see a tall, black person, being strangled by four people and one of them who was punching the victim with his fists on his stomach was short and light skinned. PW6 together with other people who were there, were puzzled by the whole incident. He tried to move even closer but the attackers shouted at him and other people who were there to mind their own business because they said, they were sorting out a small business dispute with a colleague who owed them money. They were, then, chased away with a panga. Having been chased away, PW6 took his bicycle and left the area. On the next day, in the morning hours as PW6 was heading to his work place by using the same road, he again saw a group of people gathered around the same area where he had witnessed a fracas on the 2 previous night. The people were staring to a dead body that was lying on the ground. The body resembled the person that was being attacked on the previous night. On the same day of the 6th January, 2008, at/about 21:00 hours, Wilfred Cosmas (PW5) together with his fellow masons, namely Ueso Issa and Ramadhani Majigi were returning home. They were coming from Magomeni Mikumi going to Kigogo. When they reached at Jaba area, close to a motor vehicle warehouse, they saw a fracas involving a person being strangled. According to PW5, the victim was tall and seemed to be a man of physical exercise. Hence, the two attackers were trying to pin him down and they had a panga and a knife. They tried to help but they were told not to bother because the victim was their fellow businessman as he owed them money. Suddenly, they saw the victim being pushed to a ditch. They wanted to help him but the attackers unleashed a panga and started chasing them up to 20 meters away. They dispersed. On the next day at/about 0600 hours when PW5 was on his way to his work place using the same route, he found a group of people at the same place where he witnessed the fracas the other night. He moved 3 closer and saw a dead body. He had a closer look to the dead body and discovered that it was the same person who had been strangled the previous night. The police officers arrived and investigation started whereby Rashid Hamis Mohamed @ Niga was arrested on 18th January, 2008. He was taken to Magomeni Police Station and his cautioned statement was recorded by Denis Wilson Chishomi (PW3). An identification parade that was supervised by SSP Juma Max Mhindi (PW2) was conducted on 20th January 2008 and its register was tendered and admitted, Exhibit P3. The appellant was arrested after six months having been spotted by PW6 at Mabibo Mwisho. It turned out that on 27th day of July, 2008 at/about 12:45 PW6 was at Mabibo Mwisho waiting for commuter bus to Kariakoo, where he saw a person resembling the one he saw on 6th January, 2008. He moved closer to satisfy himself if he was the same person and indeed he was. The appellant was touting passengers for commuter transport. PW6 went to a nearest Police outpost, Mabibo Mleba Police outpost where he met D.7780 D/Sgt. Joseph (PW1) and reported the matter. 4 PW1 together with one police officer and two militia men led by PW6 apprehended the appellant. He was taken to Magomeni Police Station where his cautioned statement was recorded on the same day by F. 18084 Inspector Abdallah (PW4). That cautioned statement was admitted, Exhibit P4, after the trial court conducted a trial within trial and satisfied that it was freely and voluntarily made by the appellant. The prosecution case was also built upon two other documentary evidences, namely sketch map (Exhibit PI) and postmortem examination report (Exhibit P2) which were tendered and admitted during the Preliminary Hearing stage. The appellant in his defence admitted that he was arrested on 27th July, 2008 at Mabibo Mwisho but denied to have committed the murder. He said that on 27th January, 2008 he was on his way from Pharmacy where he went to buy medicine for his sick father. While he was on his way, he met a group of police officers who had already arrested eight (8) people and they were tied up with ropes. He was stopped and asked where he was coming from. He explained to them and showed them the medicine but they arrested and handcuffed him without being told the reason for his 5 arrest. He was then thrown in a police motor vehicle make defender and taken to Magomeni Police station. He said, initially, he was charged with an offence of armed robbery but later on 5th August, 2008 that charge was substituted to murder and joined with Rashid Hamis Mohamed @ Niga. He also told the trial court that he could not recall where he was on the 6th January, 2008. The lady and gentleman assessors returned a verdict of not guilty. They were of the opinion that the key identifying witnesses, PW5 and PW6 did not properly identify the accused persons. The trial court concurred with the assessors that the visual identification of PW5 and PW6 was too weak for proper identification of the accused persons. It also held that the identification parade conducted by PW2 contravened Rule 2 of the Police General Order No. 232 made by the Inspector General of Police pursuant to the powers vested in him by section 7 (2) of the Police Force Auxiliary Services Act, Cap. 322 RE 2002. Therefore, it treated the whole exercise as worthless with no evidential value. As such, it did not act upon it. Nevertheless basing on the confessional statement (Exhibit P4) whose contents were found to have 6 been corroborated by Exhibit P2, the trial court found the appellant guilty. It thus convicted and sentenced him to death by hanging. Whereas, Rashid Hamis Mohamed @ Niga was acquitted on the basis that the prosecution case had a lot of doubts on his culpability in the murder of the deceased. Dissatisfied with that finding, the appellant initially filed a memorandum of appeal comprised of three grounds which are reproduced hereunder:- 1. That, the learned trialjudge erred in law and in fact to convict the appellant basing on the charge sheet which had disparity with the evidence o f the allegedly eye witnesses o f the scene, namely PW5 and PW6, particularly as to on which date and what time did the incident occurred. 2. That, the learned trialjudge erred in law and in fact to convict the appellant basing on retracted/repudiated confessional statement, Exhibit P4 which is lacking and valueless as it requires corroborative evidence. 3. That the learned trialjudge erred in law and in fact to hold that Exhibit P4 was corroborated by Exhibit P2 (post mortem report) notwithstanding the fact that the said exhibit was not proved before the court, since i it was not listed as the agreed facts at the preliminary hearing and the medical doctor who had examined the body o f the deceased and prepared the post mortem report was not summoned for testimony. The appellant further filed two sets of supplementary memoranda of appeals which were dropped during the hearing by Mr. Clement Kihoko, learned advocate who appeared to argue the appeal for the appellant. On the other side, the respondent Republic was represented by Mr. Yusuph Aboud, learned State Attorney. Mr. Kihoko, with the leave of the Court, in terms of Rule 81 (1) of the Tanzania Court of Appeal Rules of 2019, added one more ground of appeal, thus:- 1. The learned trial judge erred in law by committing procedural irregularities in admitting the sketch map, Exhibit PI and Post Mortem Report, Exhibit P2. Submitting on the first ground regarding variance between the Information and evidence, Mr. Kihoko argued that there is variance between the evidence and the Information on the date the murder occurred. Highlighting the difference, Mr. Kihoko referred us to the 8 Information appearing at page 76 of the record of appeal, specifically on the Particulars of Offence where it reads that the incident occurred on 7th January, 2008 and to the evidence of PW5 and PW6 where they both testified to have witnessed the fracas on 6th January, 2008 at around 21:00 Hours. It was his strong argument that both PW5 and PW6 gave evidence to the effect that the incident occurred on 6th January, 2008 and not on the 7th January, 2008 as appears in the Information. Therefore, to him, the variance was fatal and should have been resolved in favour of the appellant. When probed by the Court on the substance of the evidence of PW5 and PW6, Mr. Kihoko maintained his stance that there is variance because even PW1 said, at page 91 of the record of appeal, that he was told by the appellant that the murder occurred on 6th January, 2008 and further, PW4 said at page 134 line 21 of the record of appeal that he read the police file regarding the murder that occurred on 6th January, 2008 at midnight at/about 02:00 Hours. Moving from ground number one to ground number three that Exhibit P2 could not have corroborated Exhibit P4 as found by the learned 9 trial judge in his judgment at page 236 of the record of appeal, Mr. Kihoko argued that the postmortem examination report is deficient. He submitted that a close scrutiny of Exhibit P2 appearing at page 209 of the record of appeal revealed that it was filled on 11th January, 2008 but signed on 29th October 2011, three years later. It was beyond Mr. Kihoko's understanding as to why it took three years for it to be signed after the conduct of autopsy. For that reason, he said it could not have been relied upon by the learned trial judge to corroborate the cautioned statement. On the fourth ground that there was procedural irregularity in admitting Exhibits PI and P2, initially he challenged the person who tendered the exhibits but having been alerted that they were tendered during the preliminary hearing, he abandoned that argument. He instead argued that the postmortem examination report having been admitted the appellant ought to have been addressed on his rights in terms of section 291 (3) of the Criminal Procedure Act, Cap. 20 RE 2019 (the CPA). He thus urged us to expunge it from the record for contravening section 291 (3) of the CPA. 10 Mr. Kihoko concluded his submission by arguing the second ground that having expunged the postmortem examination report, Exhibit P2 then the retracted/repudiated confessional statement, Exhibit P4 lacked corroboration. With that submission, Mr. Kihoko urged us to allow the appeal, quash the conviction and set aside the sentence imposed to the appellant. On his part, Mr Aboud supported the conviction and the sentence relying on the strong evidence adduced by the prosecution witnesses at the trial court. On the first ground, he submitted that according to the evidence nobody witnessed the deceased's death. He added that the evidence of PW5 and PW6 was to the effect that on the 6th January, 2008 at/about 21:00 hours on their way back home, at Jaba area, they witnessed a fracas and on the next morning at/around 06:00 hours they saw a body of the deceased resembling that of the victim who was being strangled the previous night. It was his submission that with that evidence on record then if there is variance that variance would be on the time which according to section 234 (3) of the CPA is immaterial. Therefore, to him the ground has no merit. li On the second ground, he submitted that the trial court having conducted a trial within a trial to ascertain the voluntariness of it and it be satisfied that it was voluntarily and freely made by the appellant then the admission of the appellant is the best evidence in the prosecution case. He supported his submission with the case of Paul Maduka and 4 Others v the Republic, Criminal Appeal No. 110 of 2007 (unreported) at page 11. Regarding Exhibit P2, Mr. Aboud readily conceded that after the admission of the postmortem examination report, Exhibit P2 the trial court ought to have addressed the appellant on his rights as enumerated under section 291 (3) of CPA. Failure to do so rendered that exhibit worthless and ought to be expunged from the record. He observed that even if the postmortem examination report is excluded from the evidence, the evidence of PW5 and PW6 established the death of a person beyond a speck of doubt so the learned trial judge properly convicted the appellant of murder. At the end, he urged us to dismiss the appeal. After reviewing the evidence on record and the submissions made by counsel, we shall begin our discourse on the third ground since counsel for both sides are in agreement that the trial judge failed to comply with the 12 provisions of section 291(3) of the CPA. In disposing this issue, we shall reiterate to what we stated in the case of Dawido Qumunga v. The Republic [1993] TLR 120 that:- "The provisions o f section 291 (3) o f the CPA are mandatory and require that an accused must be informed about his right to have the doctor who performed the postmortem be called to testify in order to enable him decide whether or not he wants the doctor to be called. " We echoed the above position in the case of Andrea Ngura v. The Republic, Criminal Appeal No. 15 of 2013 where the appellant in that case was not informed of his right under section 291 (3) of the CPA to call the doctor who prepared the postmortem examination report and we said:- " ...... it has also been held by this Court that, the provisions o f section 291 (3) o f the CPA are mandatory and places on the trial court, the duty of informing an accused person o f his right to call the doctor who prepared the postmortem report to testify, and that it is only him (the accused) who can decide whether or not to call him. No one else can wish away that right, and non compliance was 13 fatal...since the post mortem report (Exhibit P2) was not properly admitted, the same is hereby expunged from the record" In this appeal the record shows that the postmortem examination report, Exhibit P2 was admitted at the preliminary hearing without any objection from the defence counsel. It is on record that the trial court having admitted the postmortem examination report did not address the appellant on his right to call the doctor who performed the autopsy on the deceased body as mandatorily required by section 291 (3) of the CPA. Since the provisions of section 291 (3) of the CPA was flouted we hereby expunge Exhibit P2 from the record. Having expunged Exhibit P2, we are in full agreement with the submission made by Mr. Aboud that even though nobody saw the killing of the deceased there is evidence of independent witnesses, namely PW5 and PW6. Both PW5 and PW6 witnessed the fight on 6th January, 2008 and the next morning they saw a dead body of a person whom they recognized as the one who was involved in the fight on the previous night. In the case of Mathias Bundala v. The Republic, Criminal Appeal No. 62 of 2004 (unreported) we observed that it is not the requirement of 14 the law that every killing has to be eye - witnessed. Had it been the requirement then many homicides would remain unsolved. We further noted that death may be proved by circumstantial evidence even without the production of the body of the alleged dead person. Taking into account the evidence of PW5 and PW6, we hold that the prosecution proved to the hilt that a death of a person occurred and such death was due to unnatural cause. We now move to the first ground of appeal that is whether there was variance between the Information and the evidence adduced at the trial court. It was the submission of Mr. Kihoko that there is a variance between the Information and the evidence of PW5 and PW6 in that the Information alleges that the murder occurred on 7th January, 2008 whereas PW5 and PW6 said they saw a fight on 6th January, 2008 and the body on 7th January, 2008. Admittedly, the Information indicates that the deceased death occurred on 7th January, 2008. But in essence, there is nobody who witnessed the death of the deceased. The evidence on record is that both PW5 and PW6 witnessed a person being strangled on the night of 6th January, 2008. 15 For instance, PW5 told the trial court thus: "...On 06/ol/2008 at/about 21:00 hours I was in Magomeni Jaba coming from Magomeni Mikumi to Kigogo. On arrival at Jaba I witnessed a robbery. I saw with my eyes together with my colleagues, Ueso Issa and Ramadhani Majigi, on ay to Kigogo, we saw a fracas in front o f us which involved a person being strangled. The victim was tall and the assailants were trying to put him under their control. The victim looked a man o f physical exercise. The assailants were hitting him on his stomach." He further said: "....On 07/01/2008 at/about 06:00 hours on my way to my place o f work, I found a group o f people at the same place where I witnessed robbery the previous night. I moved closer and saw a dead person and upon looking at him, I discovered that he was the same person hwo had been strangled the previous night" PW6, on his part, told the trial court that: 16 "....06/01/2008 around 21:00 hours I was riding a bicycle from Ilala to Magomeni to my home. As I rode at Magomeni Jaba I saw some people standing. As I moved closer I saw one person being strangled and other people surrounded him. The victim was surrounded by 4 people. One o f them was strangling the victim and another one punching the victim with fists on the abdomen....On 07/01/2008 morning, I left my home to Ilala as I reached Magomeni Jaba, I found people gathered, I saw a person lying on the ground. As I moved closer, I realized he was the same person who was strangled the previous night at that place. I felt very bad. " It follows then that PW5 and PW6 did not witness the deceased's death. What they saw was the deceased being strangled on 6th January, 2008 at/about 21:00 hours. And that strangled person was found dead on the next day in the early morning at around 06:00 hours. From their evidence we gather that the strangled person died between 21:00 hours and 06:00 hours. In the circumstances, we are satisfied that the strangled person met his death between 21:00 hours of 6th January, 2008 and 06:00 hours of 7th January, 2008. Although PW4 told the trial court that he read 17 from the police case file that the crime occurred on 06/01/2008 night at/about 02:00 hours but there is no direct evidence on the exact time of the deceased's death. It is not known at what time the strangled person met his death. With that in mind then, we are settled in our mind that the variance if any was in respect of time which according to section 234 (3) of the CPA, such variance is immaterial. For ease of reference that section provides:- "Variance between the charge and the evidence adduced in support o f it with respect to the time at which the alleged offence was committed is not m aterialand the charge need not be amended for such variance if it is proved that the proceedings were in fact instituted within the time, if any limited by law for the institution thereof " With that clear position, we find that the first ground of appeal lacks merit and it is therefore dismissed. We now turn to the complaint regarding cautioned statement. The learned counsel banked on the findings of the learned trial judge that the repudiated cautioned statement needs corroboration which corroboration was found to come from the irregularly admitted postmortem examination 18 report. Thus, to him, there is no other corroborative evidence to corroborate the cautioned statement. It is true that the learned trial judge convicted the appellant based on his confession statement, Exhibit P4. In his analysis in trying to ascertain as to whether the confessional statement could be acted upon to convict the appellant the learned trial judge correctly held that the trial court has a duty to examine the contents and assess the weight to attach thereto as we held in the cases of Abdul Farijala & Another v. The Republic, Criminal Appeal No. 99 of 2008 and Hassan Said Nundu v. The Republic, Criminal Appeal No. 126 of 2002 (both unreported). Further, in assessing the probity and weight to be accorded to the appellant's confessional statement, the learned trial judge considered three things for him to come to a conclusion that the appellant's admission qualified to be a confession to the offence. One; the appellant's conduct immediately after the commission of the offence that he changed his residence to Mabibo. Two; whether there is any corroboration of which he found that the contents of the postmortem examination report, Exhibit P2 corroborated the contents of the cautioned statement, Exhibit P4. And three, the appellant's bad character thus he was a man capable of 19 committing the offence. These three things made the learned trial judge to conclude as follows:- am satisfied thus that, exhibit P4 contains nothing but a confession to commit the offence and Iso find." As a whole, we think that the trial court reached to the correct findings the confession statement of the appellant was nothing but the truth. We say so because under section 27 (1) of the Evidence Act, Cap 6 Revised Edition of 2019, a confession made to a police officer is admissible and may be proved against an accused person, if it is proved that it is voluntary and lawfully recorded in accordance with the provisions of the CPA. It was, thus rightly observed by this Court in the case cited to us by the learned State Attorney of Paul Maduka and 4 Others v. The Republic (supra) that: "There is no doubt that a confession to an offence made to a police officer, is admissible in evidence. The very best o f witnesses in any criminal trial is an accused person who confesses his guilt. However, such claims o f accused persons having made confessions should always not be treated casually by courts o f justice. The prosecution should always 20 prove that there was a confession made and the same was made freely and voluntarily. The confession should have been free from the blemishes o f compulsion, inducements, promises or even self-hallucinations." In this appeal, PW3 adduced evidence that the appellant made a confession statement to him on 27th July, 2008 and he tried to tender it. However, the appellant repudiated and claimed that he was neither interviewed nor recorded any statement before PW3. That repudiation prompted the trial court to conduct a trial within a trial in order to ascertain whether the cautioned statement was made or made free from the blemishes of compulsion, inducement, threat, promises or even self hallucinations. The proceedings of the trial within trial are reflected from pages 138 to 159 of the record of appeal. The trial court was satisfied that the confessional statement was made by the appellant. It reached to that conclusion after noting that the details disclosed therein that could only have been disclosed to PW3 by the appellant himself. At the end, it convicted the appellant basing on his freely and voluntary made confessional statement. 21 On our part, we have examined the cautioned statement and we find that the learned trial judge was correct to come to that conclusion. Indeed, the appellant gave detailed account on how the deceased met his death. He described that it was Rashid Niga who strangled the deceased and he was punching him on his abdomen. He said, they then searched and robbed from him TZS 250,000. Out of that money, the appellant received TZS 75,000. Thereafter, they left the deceased lying helplessly at the water trench where on the next morning he was found dead. Immediately, after the commission of the crime, the appellant relocated his residence from his mother's house to his father's house in Mabibo. These details as correctly observed by the learned trial judge could not have been given by a person who has not participated in the killing apart from the appellant himself. The trial court's finding and admission of the cautioned statement has not been challenged in this appeal. We are accordingly satisfied beyond any reasonable doubt, as was the learned trial judge that the appellant freely and voluntarily confessed to the killing of Reuben s/o Erasto. Since the appellant confessed to the crime then we find no reason to fault his conviction and sentence. 22 In the upshot, we are satisfied that this appeal has no merit. We accordingly dismiss this appeal in its entirety. DATED at DAR ES SALAAM this 20th day of May, 2020. S. A. LILA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL The Judgment delivered this 21st day of May, 2020 in the presence of appellant in person via-video conference and Ms Mwanaamina Kombakono Senior State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. 23