CRIMINAL APPEAL NO 319 OF 2021 SENI LESESI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT SU M HAWANG A (CORAM: SEHEL. J.A.. 8CIHWELO. 3.A. And MDEMU. J.A.^ CRIMINAL APPEAL NO. 319 OF 2021 SENI LISESI..................................................................................... APPELLANT VERSUS THE REPUBLIC............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) (Ndunquru, 3.) dated the 14th day of May, 2021 in Criminal Sessions Case No. 30 of 2018 JUDGMENT OF THE COURT 25th October, 2024 & 30th January, 2025 KIHWELO. J.A.: The appellant, Seni Lisesi, was charged with murder by the High Court of Tanzania at Sumbawanga. He denied the charges, whereby the prosecution featured four witnesses and tendered a Police Form No. 3 (PF3), a sketch map of the scene of crime as well as the cautioned and extra judicial statements of the accused. He was found guilty and upon conviction he was sentenced to suffer death by hanging. According to the information that was laid at his door in the High Court, the appellant was formally arraigned for murder. The particulars on the information alleged that, on 4th December 2016, the appellant murdered Gindu Kashinje (the deceased). It was common ground that the deceased died violently. According to the report of the autopsy which was tendered in court during the preliminary hearing and undisputedly admitted in evidence as exhibit PI, the death resulted from "Severe Haemmorrhage due to m ultiple cut wounds". Apart from the report of the autopsy exhibit PI, the prosecution tendered in court, during the preliminary hearing, a sketch map of the scene of the crime which was admitted in evidence and marked exhibit P2. Furthermore, the prosecution tendered during trial, the cautioned statement of the appellant, exhibit P3, and the extra judicial statement of the appellant, exhibit P4. The question at the trial was, therefore, whether the appellant was the murderer. As alluded to above, the appellant refuted the accusation whereupon, at the trial he gave his evidence on oath and did not produce any documentary exhibit. Briefly, the prosecution case which was believed by the trial court commenced with the testimony of Mwalo Lisesi (PW1), a peasant and resident of Ilanga Village, Sumbawanga District and Region. His account was to the effect that, on the fateful day at night while at his father's homestead unwelcomed visitors stormed into his father's house with a torch and his father started to wail about, apparently, to attract help from neighbours, following which PW1 escaped and ran up to the nearby river and stayed there until midnight when his relatives went after him and he momentarily came back. According to PW1, upon returning back to his father's homestead he found his mother severely injured and, at that time, she was unconscious while his father was dead. The ailing mother was then rushed to hospital. In his further testimony, on the following day the police arrested the appellant who was suspected to be responsible for the murder of the deceased. Maghembe Kwilasi (PW2), a peasant and resident of Mwadui Village who previously was a Village Executive Officer, specifically, at the time of the incident, he recounted events of the night of the incident when he was informed by relatives of the deceased that, the deceased and his wife were brutally attacked by unknown attackers and rushed to the scene where he found people gathered. PW2 went to testify that, people who were at the scene interrogated the appellant who said that those who murdered his father were from Mpanda. He further testified that the appellant confessed to have murdered his father and that the matter was reported to the police who arrived at 1:00 hrs. and arrested the appellant. ASP Thomas Kilakoi (PW3), a police officer testified how on the morning of 5th December, 2016 he received the information about the murder of the deceased and rushed to the scene along with a Medical Officer where they found the lifeless body of the deceased lying outside the house but the crime scene was evident that the deceased was attacked inside the house and in the bedroom but died outside the house in his attempt to escape. There was a pool of blood where the lifeless body of the deceased was lying, but also on the bed in the bedroom. On arrival, PW3 found the appellant had already been arrested by the sungusungu (\oca\ militia men). PW3 recorded the cautioned statement of the appellant, exhibit P3 which according to him the appellant took responsibility of the deceased's death in that, he was the one who killed his father. There was further prosecution testimony from Rosta Emmanuel (PW4) a Resident Magistrate who recorded the extrajudicial statement of the appellant, exhibit P4 in which the appellant is said to have admitted to have murdered the deceased. On 23rd December, 2016, the appellant was arraigned before the District Court of Sumbawanga at Sumbawanga, the inquiry court for committal proceedings. Later, in due course, the information subject of the instant appeal was preferred against the appellant. At the conclusion of the case for the prosecution and the defence, the learned trial Judge (Ndunguru, J) summed-up the case to the three assessors who sat with him, two of the assessors returned a verdict of not guilty on account that there was no eye witness who saw the appellant killing the deceased, while the remaining assessor returned a verdict of guilty. Sharing the view with the assessor who dissented with his fellow assessors, the learned trial Judge found the appellant guilty of murder and sentenced him to suffer death by hanging. Undeterred, the appellant lodged this appeal which was initially predicated on self-crafted seven grounds memorandum of appeal lodged on 15th July, 2021. Later, on 15th October, 2024, the appellant's counsel, Ms. Neema Charles, filed a five-grounds supplementary memorandum of appeal in substitution of the earlier filed points of grievance. During the hearing of this appeal, she further abandoned the fifth ground and therefore, remained with four grounds as follows; One, the trial court erred by not properly guiding the assessors in vital points of law. Two, the trial court erred to convict and sentence the appellant basing on the cautioned and extrajudicial statements which were irregularly admitted in evidence. Three, the trial court erred to convict and sentence the appellant basing on the Postmortem Examination Report which was not read out after admission and; four, the trial court erred to convict and sentence the appellant while the case was not proved beyond reasonable doubt. At the hearing of the appeal before us, Ms. Neema Charles and Mr. Peter Kamnyalile, both learned counsel, represented the appellant. On the other hand, Mses. Irene Mwabeza and Safi Amani, learned Senior State Attorneys, represented the respondent Republic. Ms. Charles premised her submission by arguing the first ground of appeal whose main complaint was on failure by the trial court to sufficiently address the assessors on the vital points of law which were involved in the trial before it. Elaborating, she contended that, in this regard, specifically the trial Judge did not address assessors on the applicability of retracted and repudiated confession. For her part, she was of the view that, since the appellant was convicted on the basis of the cautioned and extrajudicial statements, thus, the consequences of this omission is to render the trial a nullity. She implored us to nullify the proceedings and judgment and order the matter to be remitted back to the High Court for retrial. On our prompting as to the relevance of this complaint bearing in mind that two of the assessors returned a verdict of not guilty and the practicability of the prayer for retrial, in view of the prevailing circumstances, and upon realizing that she was treading an unconventional path, Ms. Charles abandoned the course and elected to withdraw the arguments in support of this ground and hence, she abandoned the first ground. Mr. Kamyalile argued the rest of the grounds of appeal, starting with the second ground whose complaint was on the admissibility of the cautioned as well as the extrajudicial statements which were allegedly illegally admitted in evidence. Elaborating, he contended that, the cautioned statement, exhibit P3 was taken under section 58 (3) (b) of the Criminal Procedure Act, Cap. 20 (CPA) which is applicable to a person who knows how to read and write, and wishes to personally write the statement, instead of section 57 of the CPA which applies to recording of an interview and procedure of recording a confession of a person who can read or not by the police. He paid homage to the case of Petro Sule and Others v. Republic (Criminal Appeal No. 475 of 2020) [2023] TZCA 17777 to demonstrate his proposition. Mr. Kamyalile further referred us to the case of Mbuzi Lushona @Mwangaiki and 2 Others v. Republic (Criminal Appeal No. 159 of 2022) [2024] TZCA 964 in which we emphasized that, failure to comply with any of the provisions of the law in recording the cautioned statement is prejudicial and occasions miscarriage of justice. In relation to the extrajudicial statement, exhibit P4, Mr. Kamyalile argued that, it was recorded contrary to the Guidelines of the Chief Justice for Justices of Peace on recording confession statements (the C) Guidelines) as there was no certification indicating that the statement was taken freely and that it was read to the appellant. He cited the case of Manoja Masalu and Another v. Republic (Criminal Appeal No. 143 of 2020) [2024] TZCA 409 to fortify his argument. He took the view that, the cautioned statement as well as the extrajudicial statement were inadmissible, as such, have to be expunged from the record. He was further of the view that, even if exhibits P3 and P4 were admitted without objection, but interest of justice requires the Court to still examine them at this level of the appeal and cited the case of Majaliwa Ernest v. Republic (Criminal Appeal No. 465 of 2022) [2024] TZCA 313 to support his argument. Arguing in support of the third ground of appeal Mr. Kamyalile was very brief. He contended that, the report of the autopsy was not read out in court after admission contrary to the mandatory requirements of the law and therefore, he implored on us to strike it out from the record. Mr. Kamyalile argued the fourth ground whose complaint was in relation to the failure by the prosecution to prove the case beyond reasonable doubt. His argument was that, since the conviction of the appellant solely based on the appellant's confession in exhibits P3 and P4 as expressly stated by the trial Judge at page 125 of the record of appeal, and because on the basis of the submissions in ground two, exhibits P3 and P4 are to be expunged from the record, then automatically the prosecution case has no legs to stand. He took the view that, the case against the appellant was not proved beyond reasonable doubt. In all, he urged the Court to disallow the appeal. Conversely, Ms. Mwabeza hotly contested the appeal by supporting both the conviction and sentence. Responding to the second ground of appeal, she contended that, cautioned and extrajudicial statements were admissible in evidence as long as they are freely taken, the requisite procedure is followed and they reflect the truth of what the maker is telling. Ms. Mwabeza cited sections 27 and 28 of the Evidence Act, Cap. 6 to demonstrate her proposition. Illustrating, she argued that both the cautioned statement, exhibit P3 and the extrajudicial statement, exhibit P4 were admitted in evidence without there being any objection as reflected at pages 80 and 87 of the record of appeal respectively, and therefore, the appellant's complaint at this moment is a mere afterthought. Reliance was placed in the case of Mayunga Mwenelwa v Republic (Criminal Appeal No. 312 of 2020) [2024] TZCA 605 to fortify his argument. Submitting further in relation to the extrajudicial statement, Ms. Mwabeza had an opposing view to that of Mr. Kamyaliie in that, the certification was proper for the reason that the extrajudicial statement at page 154 of the record of appeal paragraph 11 the Justice of Peace confirmed that the appellant gave the statement freely. For in her view, failure by the Justice of Peace to certify that the appellant gave the statement freely and also failure to indicate that the Justice of Peace read the statement to the appellant did not prejudice him. Ms. Amani stood to firm up the submission by her colleague by submitting that, the argument that the cautioned statement was wrongly recorded under section 58 of the CPA, instead of section 57 of the CPA is not meritorious. She was of the view that, section 57 requires the police to record the cautioned statement in questions and answers form while section 58 requires the police to record the cautioned statement in a narrative form. For her, it was clear that the cautioned statement was recorded under section 58 of the CPA. Thus, she took the view that, the cautioned statement and the extrajudicial statements were properly recorded and therefore, she argued that this complaint has no merit. In response to the third ground of appeal, Ms. Mwabeza admittedly contended that, exhibit PI was irregularly admitted in evidence since it was not read out in court upon admission. Like the defence counsel, she implored us to expunge it from the record. In response to the fourth ground of appeal, Ms. Mwabeza submitted that, the prosecution proved the case to the hilt through the cautioned and extrajudicial statements. Elaborating, she argued that death was proved even though exhibit PI is expunged from the record and cited the case of Mwale Mwansanu v Republic (Criminal Appeal No. 105 of 2018) [2021] TZCA 52 for the proposition that death may be proved in several ways apart from the report of the autopsy. In her view, death of the deceased was not disputed in the instant matter before us. In her further submission she contended that, the cautioned and extrajudicial statements implicated the appellant, while PW3 in his li testimony described how the deceased was brutally murdered which demonstrated malice aforethought on the part of the perpetrator of crime. She paid homage to the case of Mwale Mwansanu v Republic (supra) in which we had occasion to discuss when malice aforethought can be imputed, and that includes nature of weapon used and the part or parts of the body where the harm is inflicted. In her view, the appellant in the cautioned statement clearly described how he committed the heinous act of attacking his father using a machete. She rounded off her submission by praying that the appeal be dismissed. In rejoinder submission, Mr. Kamyalile reiterated his earlier submission and insistently submitted that the appeal be allowed and the appellant be set at liberty. Unquestionably, sitting as a first appellate Court, we are entitled under rule 36(l)(a) of the Tanzania Court of Appeal Rules, to re-evaluate the evidence afresh and arrive at our own finding bearing in mind that as an appellate court we never saw the witnesses as they testified. See for instance, Pandya v. R [1957] EA 336. We find it convenient to deal, at first, with the third ground of appeal whose complaint is in relation to erroneously relying on the report of the autopsy, exhibit PI which was improperly admitted in evidence. We think that we need not belabour the Issue at hand in view of the circumstances of this matter. We are in agreements with the concurrent submission by the learned trained minds that, exhibit PI was not read out in court upon admission in evidence which is a serious irregularity. We are fortified in this view by the principle stated in the case of Robinson Mwanjisi v Republic [2003] T.L.R. 218. In the circumstances, we hereby expunge exhibit PI from the record of appeal. All in all, even without exhibit PI which we have expunged from the record, death may be proved in several ways apart from the report of the autopsy as we earlier on stated in Mwale Mwansanu (supra). Having expunged exhibit PI from the record we are, admittedly, left with the cautioned as well as the extra judicial statements exhibits, P3 and P4 respectively, which the appellant faulted in ground two that they were not properly admitted in evidence. The gist of the complaint is that, the cautioned statement, exhibit P3 was taken under section 58 (3) (b) of the CPA instead of section 57 of the CPA and the extrajudicial statement exhibit P4, is faulted for failure to have certification contrary to the mandatory requirements of the CJ Guidelines. We have weighed anxiously the learned counsel rival submissions on this issue and we find considerable merit in the submission by the learned Senior State Attorney in that the argument by the learned counsel is not meritorious. As rightly argued, by Ms. Mwabeza section 57 requires the police to record the cautioned statement in questions and answers form while section 58 requires the police to record the cautioned statement in a narrative form. This is not the first time we have been confronted with the interpretation of the applicability of sections 57 and 58 of the CPA. There is, in this regard, a long and unbroken chain of decisions of the Court in which we had occasion to express our view on the import of the provisions of sections 57 and 58 of the CPA. See, for instance, Yustas Katoma v. Republic (Criminal Appeal No. 242 of 2006) [2008] TZCA 38, Ramadhani Salum v. Republic (Criminal Appeal No. 5 of 2004) [2007] TZCA 178 and Seko Samweli (Criminal Appeal No. 7 of 2003) [2005] TZCA 101. In Ramadhani Salum (supra) the Court inter alia stated: "We do not think, however, that this Court in the Seko Sam weli case meant to iay down that a caution statement, which may aiso amount to a confession, could not be made under section 57 o f the Criminal Procedure Act, 1985. In fact, there is no such pronouncement in either the Seko Sam we! or.... " Then the Court further stated: "Caution statements, therefore, are not made exclusively under section 58 and exhibit P5 in this case is not any less a caution statement m erely because it was taken under section 57 and not section 58. The circumstances in which the two kinds o f caution statem ents are taken are different. The one taken under section 57 may be as a result either o f answers to questions asked by the police investigating officer or partly as answers to questions asked and partly volunteered statements. The statement under section 58 is a result o f wholly volunteered and unsolicited statem ent by the suspect." In this case like in the cases cited above, although the statement in exhibit P3 apparently was taken under section 58 (3) (b) of the CPA instead of section 57 of the CPA, nevertheless it was in effect a caution statement. It is not any less a caution statement merely because it was taken under section 58 and not section 57. We think, it is also desirable to make a brief observation on the case. On the whole, looking at exhibit P3 which is found at pages 146 to 151 of the record of appeal, there is nowhere in the record indicating that the police officer who recorded the cautioned statement, exhibit P3 established with certainty whether the appellant could read and write and therefore, it will be mere speculation to hold so. We find no grain of merit in the complaint faulting the admissibility of the cautioned statement exhibit P3. The final limb in this ground concerns the legality of the admission of the extrajudicial statement, exhibit P4. We are in agreements with Mr. Kamyalile that exhibit P4 was recorded contrary to the CJ Guidelines as there was no certification indicating that the statement was taken freely and that it was read to the appellant. Time without number we have emphasized the need to observe the G Guidelines. In the case of Japhet Thadei Msigwa v. Republic (Criminal Appeal No. 367 of 2008) [2011] TZCA 108 we held that: "We think the need to observe the Chief Justice's Instructions are twofold. One, if the suspect decided to give such statem ent he should be aware o f the im plications involved. Two, it w ill enable the trial court to know the surrounding circumstances under which the statem ent was taken and decide whether or not it was given voluntary. Non-compliance w ill norm ally render the statem ent not to have been taken voluntarily". In view of the foregoing discussion, we are decidedly of the considered opinion that, the omission to certify that the statement was read over and explained to the appellant is fatal as the requirement was meant to verify the correctness of the recorded statement and therefore, avoid unfairly incriminating suspects. As the omission is incurable under section 169 of the CPA, exhibit P4 is hereby expunged from the record. We will finally deliberate on the fourth and final ground of appeal whose gist of complaint is that the trial court erred to convict and sentence the appellant while the prosecution did not prove the case to the hilt. On the whole of the evidence, the learned trial Judge observed that the evidence presented by the prosecution was wholly circumstantial as none of the four prosecution witnesses testified to have seen the appellant killing the deceased. He was, nevertheless, satisfied that, on the strength of the cautioned and extrajudicial statements, exhibits P3 and P4 respectively, the inculpatory facts pointed to no other than reasonable hypothesis than that the appellant is the one who attacked the deceased which led to his sudden death. Having so found, the trial Judge respectfully expressed his agreement with the opinion of the two assessors, as it were, he found the appellant guilty and convicted him. The real pith and marrow in this matter is whether the circumstantial evidence was sufficient to convict the appellant. We think, it is appropriate here to recapitulate briefly the law on circumstantial evidence. Simply put, for circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilty. Indeed, there is a plethora of authorities by this Court in this aspect. See, for instance, Simon Musoke v R (1958) EA 715. Clearly, the law is perfectly settled that an accused person may be convicted on the strength of circumstantial evidence without any other type of evidence to corroborate it. Circumstantial evidence has been described as the best evidence. As was aptly articulated by Sir Udo Udoma, the then Chief Justice of Uganda, to which we subscribe as depicting the correct position of the law in this jurisdiction as well, in Republic v. Sabudin Merali & Umedali Merali, Uganda High Court Criminal Appeal No. 220 of 1963 (unreported): "...it is no derogation to say that it was so; it has been said that circum stantial evidence is very often the best evidence. It is the evidence of surrounding circumstances which, by undersigned coincidence is capable o f proving a proposition with the accuracy o f m athem atics." Likewise, in Georgina Masala v. Republic, Criminal Appeal No. 128 of 2004 (unreported), we relied on Samson Daniel v. Republic (1934) 1 EACA 46 to state that circumstantial evidence may be conclusive than the evidence of an eye witness. We observed: "Circumstantial evidence may be not only as conclusive but even more conclusive than eye-witness." Similarly, in Simon Musoke v. Republic [1958] 1 EA 715, the Court of Appeal for East Africa, quoting from the third headnote, held: "In a case depending exclusively upon circum stantial evidence, the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence o f the accused, and incapable o f explanation upon any other reasonable hypothesis than that ofguiity. The erstwhile Court of Appeal also quoted the following excerpt or passage from Taylor on Evidence (11th Edn.) at p. 74: "The circumstances m ust be such as to produce moral certainty, to the exclusion o f every reasonable d o u b t" Indeed, the record of proceedings bears out that, the evidence of PW1, PW2 and PW4 is unworthy of credit and that what remains on record for scrutiny is the cautioned statement exhibit P3 having expunged exhibit P4. In the circumstances, we think that the bone of contention in this matter hinges on a very narrow issue whether the cautioned statement, exhibit P3 can be relied to convict the appellant without corroboration. It is a peremptory principle of law that if the court is satisfied that the cautioned statement is properly admissible and so admits it, then when the court is arriving at its judgment it will consider all the evidence before it and all the circumstances of the case, and in doing so it will consider the weight to be placed on any confession that has been admitted. The nagging but pertinent question which remains unanswered will be, is what is stated true? The answer to this question was reiterated as early as 1967, by the East Africa Court of Appeal in the case of Tuwamoi v. Uganda [1967] E.A. 84 in which the Court stated that: "..if the confession is the only evidence against an accused then the court m ust decide whether the accused has correctly related what happened and whether the statem ent establishes his guilty with that degree o f certainty required in a crim inal case. This applies to a ll confessions whether they have been retracted or repudiated or admitted, but when an accused person denies or retracts his statem ents at the trial then this is a part o f the circumstances o f the case which the court must consider in deciding whether the confession is true." In trying to answer the question whether, the cautioned statement, exhibit P3 can be relied on to sustain the conviction of the appellant without corroboration, the answer to this question lies in our previous decision in the case of All Salehe Msutu v. Republic [1980] T.L.R. 1, in which we categorically stated that: "a repudiated confession, though as a m atter o f law m ay support a conviction; generally requires as a m atter o f prudence corroboration as is norm ally the case where a confession is retracted. The case before us presents similar circumstances in that the appellant retracted the confession. In his defence, he alleged that he was severely beaten by the sungusungu in order to admit to have committed the heinous crime. Thus, having expunged the extrajudicial statement, exhibit P4 from the record and bearing in mind that, the appellant was convicted on the strength of the cautioned and extrajudicial statements exhibits P3 and P4 respectively, we are, admittedly, left with the cautioned statement, exhibit P3 which we are decidedly of the view that it cannot be safely relied on to sustain conviction without there being corroboration which would have been offered by a separate piece of evidence. In view of what we have endeavoured to explain above, we are satisfied that the prosecution did not prove the case beyond reasonable doubt. It is a peremptory principle of law that, a mere suspicion alone, however strong, cannot ground a conviction. In the circumstances, it is our conclusion that the conviction of the appellant rested on weak and unreliable evidence. Accordingly, we allow the appeal, quash the conviction and set aside the sentence. We order the appellant's immediate release from prison unless held for other lawful cause. DATED at DAR ES SALAAM this 13th day of January, 2025. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 30th day of January, 2025 in the presence of the Appellant and Mr. Jackson Komba, learned State Attorney for the Respondent/Republic through vide video link from the High Court of Tanzania at Sumbawanga, is hereby certified as a true copy of the original.