republic vs idrisa hamis and another 2020 tzhc 4391 14 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KASULU ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 34 OF 2020 (P.I No. 27 of 2018 in the District Court of Kibondo at Kibondo) THE REPUBLIC VERSUS 1. IDRISA S/O HAMIS 2. JAMES S/O KANAKU ........................................................... ACCUSED JUDGMENT 04/12/2020 & 14/12/2020 A. MATUMA, J. The accused persons herein, IDRISA S/O HAMIS, and JAMES S/O KANAKU, are charged of Murder contrary to section 196 and 197 of the Penal Code (Cap. 16 R.E. 2002). They are alleged to have murdered one SAIMON S/O AMOS @ G WANKO MDANGI on the 17th day of August, 2018 at Kinonko village within Kakonko District in the RegiOh of Kigoma. It 1 | P a g e was further alleged that they stabbed the herein above victim with a bush knife (panga) around the head leading to severe bleeding and subsequently death due to loss of blood and Severe head injury. The summary facts of this case are that on the material date the deceased left his home at the evening hours for a walk to the village center. Thereat entered in a Pombe shop owned by one Mateso Gweyonga. His wife Mainesi Matata (PW2) waited him until late night hours at about 23:00hrs in vain. She went to her father in law nearby and informed him that his son since he left for a walk has not returned up to that time. The father in law instructed her to return to bed as it was night and wait more. The deceased was then found dead 100 meters from his home. He was seen with two big cut wounds one on the left part of the head and the other on the left mastoid bone which extended to the left side of the neck. The first accused Idrisa Hamis was the only suspect because he had some grudges with the deceased because at one time his house got burnt when he was away fishing and he was told it was Simoni Amos the deceased who burnt it. He was thus arrested and interrogated in which PW4 D/Sgt Stanley claims that he confessed to him of the murder and mentioned the second 2 | P a g e accused James Kanaku as his companion to the murder hence this case against the two accused persons. In criminal charges, it is the prosecution side which owe a duty to prove the charges against an accused person beyond any reasonable doubts. It is not for the accused person to establish his innocence. This responsibility never shifts throughout. This being a Murder charge or case, the prosecution had a duty to prove beyond reasonable doubts the following elements: That, death was caused to the deceased person; that means the alleged deceased person is indeed dead; That, the death was not natural; That, the death was caused by an unlawful act or omission; That, it were the accused persons who did the unlawful act or omission leading to death and, That, the death was caused with malice afore-thought in the meaning that the accused intended to cause such death or grievous harm. The prosecution in discharging such duty of proving the herein elements of the offence beyond any reasonable doubts against the two accused persons lined up a total of four witnesses namely; PW1 (Chiza Mburano); PW2 (Mainesi Matata); PW3 (Dr. Bigirimana); and PW4 (E. 9284 D/Sgt Stanley). At the hearing of this case, the Republic/Complainant was represented by Mr. Robert Magige and M/S Edna Makala learned State Attorneys^while the 3 | Pa ge accused persons enjoyed the services of Mr. Denis Katambo Kayaga learned Advocate. On my party I sat with two lady and gentle assessor's M/S Sanyu James Kihungu and Mr. Bathromeo Josephat Furugutu. As rightly opined by the lay assessors whom I concur, it is undisputed fact that Saimon Amos @ Gwanko Mdangi is indeed dead and his death was not natural and that whoever caused such death had malice aforethought. This is due to the direct oral evidence of PW1, PW2, PW3 and PW4 who saw the dead body with two big inflicted cut wounds. PW3 the Assistant medical officer who examined the cause of death established that it was due to severe hemorrhage and severe heady injury. In his examination he observed that one of the cut wounds involved a skull bone and the other which was also inflicted on the head extended to the neck. To that extend I find that the prosecution has sufficiently proved the death itself, that it was unnatural one, and that the same was unlawfully caused with malice aforethought. The only dispute therefore is on the identity of who killed the deceased. To the prosecution, it was the accused persons who brutally murdered Saimon Amos @ Gwanko Mdangi while to the defense, the accused persons are not in any way responsible for the alleged attack or murder. As I have earlier on said, it is the prosecution side which retained 4 | P a ge the duty to prove the accused persons' guilty. All the accused persons had to do was just to raise reasonable doubts to the prosecution case. When the prosecution evidence is reviewed, none of the four witnesses for the prosecution witnessed the crime or identified the accused persons to have committed the offence. PW1, a Village Executive Officer stated in his evidence that he was phoned and informed of the murder. He went to the crime scene and saw the deceased with two big cut wounds. One Amos Kanyina the deceased's father informed him that the suspect of the murder was Idrisa Hamis the first accused as they had "mgogoro wa maneno, Idrisa akimtuhumu marehemu kuwa a/ichoma nyumba yake" Following that information, he informed the Police officer of the said suspect and left the crime scene. PW2, the deceased's widow stated that on the crime date at night she was asleep when some people came and informed her that her husband has been found dead. Having been informed of the death, she suspected Idrisa the first accused because on the evening of that day she accompanied her husband to the center where she left him drinking pombe with Idrisa and other people. Her husband had asked her to seat with them and drink pombe as Idrisa offered to buy it for them. She however left them tocook for her 5 | Pa ge children. At home she awaited her husband in vain until when she got informed of his death. She then named Idrisa to Police as the murderer because he had quarreled the deceased for accusing the said deceased to have burnt his house. PW3 was the Assistant Medical Officer who examined the deceased's body. He had no any piece of evidence relating to who caused the death in question. PW4 was the arresting officer and also interrogated both accused persons whom he stated to have confessed before him that they indeed murdered the deceased. He testified that at the crime scene his informer named Idrisa as the murderer because that night he met the deceased heeding to his home and they passed each other, soon behind the deceased at some distance he met Idrisa and his companion. He passed them through and no sooner than he heard some sort of a cry but didn't follow up. He thus arrested Idrisa and interrogated him. According to him, Idrisa confessed and named the second accused as his companion in the murder. He arrested also the second accused and interrogated him as well. He claimed that the second accused also confessed. Then PW4 tendered the cautioned statements of the two accused persons as exhibit^P3 and P4 6 | P a ge respectively which were objected but after a trial within trial I was of the view that the statements shall be examined its evidential value along with the evidence in the main trial. In the two statements each of the accused persons is recorded to have confessed that he participated in the killing. For Idrisa, that; it was because the deceased burnt his house and for James the second accused, that; it was because he was hired by Idrisa along with some others for payment of Tsh. 200,000/= In their respective defenses the accused persons denied to have murdered the deceased and that the statements were procured by force. DW1 however admitted the existence of the alleged fact that his house was burnt by the deceased. He explained that it was one Mateso Raulian @ Mateso Gweyonga who informed him that it was the deceased who burnt his house. The said Mateso had his fishnets burnt in the house and he suggested to DW1 herein to revenge by cooperating him to kill the deceased but he himself refused. Having refused the said Mateso threatened him that either him or the deceased, one of them must die. That he reported to his father who then took charge in the follow up of the matter. That he even disclosed that fact to police who said they will work on it. 7 | P age The lay assessors unanimously, opined that the accused persons are not guilty of the offence as they are only surrounded by suspicious. They opined for the acquittal of the accused persons. It is true that the prosecution's case rests on two pieces of evidence regarding to who caused the death in question. One, Suspicion due to the existed grudges between the first accused and the deceased. Two, the confession of the accused persons before PW4 that they indeed murdered the deceased. I will start with the first set; Suspicion. The first accused was suspected because at one time he went to fish which is his daily activity. On his return he found his house burnt. He suspected the deceased to be behind the arson and thus they quarreled. On the death of the deceased the relatives of the deceased suspected him and reported him as a murderer. When such suspicion by the deceased's relatives is put together with the defense evidence to the effect that the first accused was once advised by one Mateso Gweyonga to cooperate him for killing the deceased as he had burnt the house belonging to the first accused in which some fishnets of the said Mateso also were completely burnt, creates a grave suspicion against the first accused person. Suspicion however, has not been accepted in our criminal 8 | P age jurisprudence as sufficient evidence to convict, however strong is. In the case of Raphael Kinashi V. Republic, Criminal Appeal no.67 of 2002 the Court of Appeal held that suspicion however grave cannot be a substitute for proof beyond reasonable doubt. Likewise, in the other cases of Benedict Ajetu V. Republic (1983) TLR 190 and Hakimu Mfaume V. Republic (1984) TLR 201 the court had ruled that suspicion however strong cannot take the place of proof nor can be sufficient evidence to convict. In that regard, I reject and throw away the suspicions by the prosecution witnesses against the first accused as the same have no any evidential value to warrant the conviction of the first accused as rightly opined by the two lay assessors. In regard to the Cautioned Statements of the two accused persons, PW4 in his evidence stated that the accused persons confessed freely and that is why they even gave him their historical background as authenticated in the statements. On the other hand, the accused persons alleged severe torture and application of force for them to sign the statements. During trial within trial I had to reject the two statements as the accused persons in my view gave reasonable account that the two statements were illegally procured. I however decided to admit them in evidence so that I would determine their 9 | P a ge evidential value along with the evidence in the main case. As to why I decided as such, I wanted to bring this case to an end. This is due to the fact that the two statements were the only potential evidence for the prosecution. Its rejection at the stage of trial within trial, would leave the prosecution case with no legs to stand. They might have necessitated to withdraw it under section 91 (1) of the CPA as it is used to be and recommence the charges. I was of such view because when I was continuing with the trial, in the other nearby court room the learned Resident Magistrate Incharge of Kasulu District Court Mr. Imani Batenzi was on his normal court businesses. Before him it was an Armed Robbery Case Criminal Case no. 202 of 2020 The Republic versus Hassan Athumani & 6 Others. According to the learned Magistrate that case started its life in Court Registers in 2019 as criminal case no. 398 of 2019. On February, 2020 the prosecution withdrew the charges and reinstituted it as Criminal Case no. 99 of 2020. It went up to August, 2020 when the court itself decided to discharge the accused persons under section 225 (5) of the CPA. The accused persons were rearrested and charged afresh as herein above stated as Criminal case no. 202 of 2020. On 4th December, 2020 the trial Magistrate became tired of prolonged adjournments and decided to dismiss the charge and set the accused persons 10 | P a g e free. The prosecutions as usual prepared to rearrest the accused persons and recharge them. The accused persons were not ready to be rearrested and thus decided to run randomly. Their running and attempts by police officers to rearrest them brought about disorder at the court premises as it involved gun firing by police officers and even one of the glass in the court windows got broken in the process, I was forced to stop a bit my session as each one in the court was at shock. To avoid such action and an abuse of court process to happen in the instant case, I admitted the statements to end the case once and for all. It is under the circumstances, I am of the view that if the court thinks that rejection of certain evidence would open up a way to the abuse of court process by the prosecution and be detrimental to justice on the party of the accused it is legally justified to admit such evidence which would have otherwise be rejected, for the interest of justice which is to make sure that the case ends once and for all and to broke any abuse of court process. Now back to the evidential value of the two statements I find them to have not contained a true confession. Only Cautioned statements which contains a true confession and which has been legally procured can lead to conviction of the confessor even if retracted. But to ground conviction on such a 11 | P a g e statement, the court must fully be satisfied that such confession cannot but be true. See Hatibu Gandhi and Others versus Republic (1996) TLR 12 CAT. In the instant case, the two cautioned statements fall short of evidential value to convict the appellants on a number of aspects; One, PW4 himself declared in this court that w n he took the accused persons to the justice of the peace, they denied the offence and stated that the statements contain some truth and some false; "When I sent the two accused persons to the Justice of the peace. The Justice of the peace did not record their extra-judicial statements because the accused person denied part of the statements made at the Police and acknowledged some". It should be remembered that between the time the accused persons made their statements before PW4 and the time when they were arraigned before the justice of the peace is only some hours. Therefore, it was below even a half of the day. Had the accused persons truly confessed before PW4, it would have been expected them to confess before the justice of the peace as they had no time to rethink against their confessions at the police. Since the accused persons toldjtbe^justice 12 | P a g e of the peace that their statements at police are not whole true which caused the justice of the peace to abstain from recording their extra judicial statements, it is obvious that the statements were retracted on the same very day when they were made and on that circumstances it is very dangerous to act on them without corroborations. Two, when PW4 was asked by one of the lay assessor Mr. Bathromeo Josephat Furugutu to clarify whether he took any weapon from the accused persons which might have been used in committing the offence, he said he asked them the whereabout of the weapons used in the murder but they refused to show him; "waHgoma kwenda kunionyesha" I wonder how a person who has freely confessed the commission of the offence, could at the same time refuse to cooperate with the investigator to show him the weapons used in committing the offence he confesses. It leaves much doubts than reliability on the statements. Three, when the statement of the first accused Idrisa Hamis is read on the certification clause, it reflects that all what stated therein is true according to what he was told and not what he has himself narrated; 13 | P a g e "UTHIBITISHO:- Mimi Idrisa s/o Hamis nimesomewa maeiezo yangu niiivyoandikwa na askari no. E. 9284 D/sgt Stanley. Yote yameandikwa kwa usahihi kama nilivyoelezwa biia kupunguza kitu waia kuongeza kitu chochote chini ya k.f 57 (4) (b) and (6)(b) CPA Cap 20 R.E2011". Such certification on the bold phrase indicate that the accused had some words put in his mouth to record and if that is to be the position then the whole statement do not qualify to be a confession of the accused. Not only that when the certification is properly examined, it reveals that it was PW4 certifying the statement purporting to be the accused. That can be seen in the manner it was drafted. There is a mixer of languages English and Swahili; "chini ya k. 57 (4)(b) and (6)(b)...." Also, the mentioning of the provisions of the law in the certifications cannot in any imaginary situation be from the accused Idrisa as there is no evidence that at the time of his arrest was a lawyer or knew the provisions of the law. Not only that but also the statement was certificated under the none existing law nor existed law (R.E 2011) at the timepf-the arrest of such accused. 14 | P a g e I thought that the certification to show the phrase "kama nilivyoelezwa" instead of "kama nilivyoeleza" was just a clerical error but the prosecution did not bother to correct it from 17th August, 2018 when the statement was procured to the date it was finally tendered in court 4th December, 2020, even when the same was read in court. Again, I saw the certification of the police officer which does not authenticate that all what is contained in the statement was a narration from the accused himself; "UTHIBITISHO: - Mimi Askari no. £ 9284 D/sgt Stanley ninathibitisha kuandika maeiezo ya Idrisa s/o Hamis kwa usahihi na uaminifu chini ya k.f 58 cha sheria ya mwenendo wa mashauri ya jinai Cap 20R.E2002". The two certifications contravened the mandatory requirements of section 57 (3) of the CPA rendering the cautioned statement of the first accused useless with no any legal force and liable to be expunged as it was held in the case of Christina Damiano versus Republic, criminal appeal no. 178 of 2012 CAT at Tabora. The caution statement of the second accused James Kanaku suffers the same shortcomings. I therefore accord no weight to the two statements. 15 | P a ge The prosecution case remains with no any evidence touching the accused persons with the alleged offence. In other word, I join hands with my lay assessors that the prosecution failed to prove the case against both accused persons beyond reasonable doubts. Before I wind up, I would like to remind investigators of their duty. They are called investigators because their role is to investigate offences and collect all potential evidence to prove or disprove the allegations registered before the police station. They should not relax on the information obtained on the so-called informers without verifying them by collecting independent evidence through the information obtained. Courts of law will never convict a suspect on allegation that the police informer named him even if it is stated that such informer saw the accused committing the offence in the broad day light and that they are familiar to each other. In the circumstances the informer would be necessitated to turn into a witness and be physically available in the witness dock to be subjected to cross examination by the accused or his advocate. And for the court to assess his or her credibility and reliability. In the instant case for instance, the alleged informer did not tell PW4 how did he manage to identify the accused persons in thedeadnnight. 16 | P a g e Where was he coming from and where was he going to in such dead night. All these are unanswered. What if, it was that informer the actual perpetrator of the crime! Also, investigators should not relax on the confessions of accused persons, particularly in this era when there is a general cry of the general public against police officers that suspects of crimes are always subjected to torture to procure their confessions. Even the enacted law section 27 (1), (2), and (3) of the Evidence Act, Cap. 6 R.E 2019 put it clear that confessions to Police Officers are presumed to have been involuntarily obtained unless proved otherwise and it is the prosecution to prove that such confessions were in fact voluntarily made; "(1) A confession voluntarily made to a police officer by a person accused of an offence may be proved as against that person. (2) The onus ofproving that any confession made by an accused person was voluntarily made by him shall He on the prosecution. (3) A confession shall be held to be involuntary if the court believes that it was induced by any threat, promise or other prejudice held out by the police officer to whom it wasunade or 17 | P a g e by any member of the Police Force or by any other person in authority". Police officers investigating offences, should always be aware of this provision. They are suspect of torture by both the general public and the law. They should thus not rest in their investigations merely because they have already confession statements beforehand. They should take opportunity of the confession to collect independent evidence that would corroborate the confession during trial. In this case for example. If truly the accused confessed the investigator should have obtained from them the weapons used, investigate from such weapons the DNA profiles of both the deceased and the accused persons. Since the accused persons are alleged to have confessed in their respective statements that after the murder, they carried the deceased's body to some distance away where they dumped it, the investigator should have investigated from the deceased's body or his clothes the DNA profiles of the accused persons. It is shame to the Police Force having investigators who does not perform their duties properly yet does not relieve them from such duty. The investigator who carries suspicious facts/information of individuals 18 | P a g e and Cautioned statements of accused persons which does not have an automatic admissibility in evidence as the only evidence to prove his case, is like a soldier who equips himself with an empty gun which has no magazine nor bullets and yet expect to fire his enemy to death. That soldier is going to die shamelessly in the battle field without even inflicting a minor injury to the enemy. Nor he deserves any honour in his burial ceremony. The caution statement is like the empty gun, other independent evidence like DNA profiles, exhibits connected to the offence which have been recovered from the accused, etc. acts as live bullets, and collections of such evidences in the proper manner as directed in the relevant law governing a specific investigation is like the magazine. Ignoring any is to ignore the whole case. I will give a simple example. In this same sitting of this session, I had Criminal Session Case no. 13 of2020 the Republic versus Lazaro Elias @ Robert Patrick Mbawala. The accused in this case is totally insane. Even during the preliminary hearing, he was unable to follow the proceedings. His advocate and the State Attorney agreed in fact that examination of his mental status was necessary before trial takes off. I ordered him to be detained at Isanga Mental institute fai^mental 19 | P a g e examination under section 219 (1) of the CPA. The report came that he was insane at the time of the commission of the offence and is still insane. The whole members in the court room observed his demeanor. He is a complete insane without doubt. But from this man the insane one who could not talk any understandable word, the police investigator procured a well detailed confession towards the murder in question. How did he manage to talk to the insane person whom the other whole world could not, only God knows. At the time of review of that case in undergoing a Criminal Lunatic Process, Mr. Robert Magige learned state Attorney sought to tender in evidence such cautioned statement to solicit the court that the accused after his arrest was interrogated and confessed to have murdered the deceased. I rejected such statement on the ground that it was procured from an insane person in the manner nobody can tell except the investigator who interviewed him God who was witnessing the process. This live example should be used as a caution to all judicial officers, that Cautioned statements even if are well detailed should be relied on with a great caution to avoid detrimental to innocent accused persons who might have been fallen into the hands of investigators who can^procure a 20 | P a ge detailed confession from even an insane person. The question should always be; if truly the accused confessed, why did the investigator not use the opportunity of such confession to require the accused so confessed to reveal more the crime and lead him to discover some other independent evidence against the accused that might stand alone even in the absence of the statement? In the light of what I have demonstrated herein above, I reiterate that the prosecution case being built on suspicion and uncorroborated caution statements which have as well been procured illegally, has not proved the case beyond reasonable doubts against the accused persons. I accordingly acquit them of the offence of murder which they stand charged. I order their immediate release from custody unless held for some other lawful cause. Right of Appeal to the Court of Appeal of Tanzania subject to the relevant governing laws is hereby explained to the parties. It is so ordered. Judge 14/12/2020 21 | P a g e Court. Judgment delivered in the open court in the presence of the accused persons and their advocate Mr. Sadiki Aliki holding brief of Mr. Denis Katambo Kayaga and in the presence of Mr. Robert Magige and M/S Edna 22 | P a g e