republic vs abdu mohamed swafi 2023 tzhc 23774 13 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT PAR ES SALAAM CRIMINAL SESSION CASE NO. 77 OF 2021 REPUBLIC VERSUS ABDU MOHAMED SWAFI JUDGMENT S.M. MAGHIMBI, J: On the 29th day of November, 2019 when PW4 went to visit his uncle Salum Swafi, he found him dead, his body was lying behind the house of Abdu Mohamed Swafi, the accused herein. According to the PW4, the body had started decomposing and some trails of heavy bleeding were spotted on the body. PW4 then informed one Yusuph Hamza and they both went to inform the deceased's other relatives about the death. They returned to the scene of crime along with the deceased's sons Rajabu, Bakari and another one Saidi Mohamed Swafi (PW5). It was PW5 who reported the incident to the Village Chairman and later to police. The police came and took over the scene of crime and in due course, the accused was arrested and charged with the murder of his uncle Salum Swafi. In the information, the accused was charged with murder contrary to Section 196 and 197 of the Penal Code, Cap. 16 R.E 2019 ("The Penal Code"). It was alleged that on the unknown date of November, 2019 at Nyamwambele Village within Kibiti District in Coast Region the accused killed Salum Saidi Swafi. The accused denied the charges and it was the prosecution side's duty to prove the case against the accused beyond reasonable doubt. In order to prove their case, the prosecution side called eight (8) witnesses and tendered five (5) exhibits. On the other hand, the defence had only one witness, the accused himself and did not have any exhibit to tender. Having analysed the evidence adduced from both sides, I must state at the onset that in this case, there is no any witness who testified to have seen the accused killing the deceased. The first witness to find out about the death of the deceased was PW4 who is alleged to have gone to greet the deceased. All the other witnesses testified to the subsequent events after PW4 found the deceased body. It is apparent at this point that in the absence of any eye witness, the prosecution evidence remains but circumstantial evidence. 2 It is trite law that for a conviction based on circumstantial evidence to succeed, it must irresistibly point to the guilt of the accused such that the circumstances from all the evidence adduced lead to no other conclusion except that the accused is the person who committed the offence he is charged with. The prosecution is hence duty bound to adduce the inculpatory facts which are inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt. And it is necessary before drawing the inference of guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. As for the prosecution evidence, PW1 was a police officer who was an investigator. His testimony was that on 29/11/2019 he received a call from Bungu Police Station and was informed of a murder incident at Nyamwimbe Village, he informed the OCD of Kibiti and thereafter he coordinated all the investigation process. This included supervising the drawing the map of the scene of crime, taking the Doctor to perform Post Mortem of the deceased body and arresting of the accused. He also testified that he assigned PW2 to interrogate the accused who admitted to have committed the crime. PW1 3 also testified that they discovered a machete that killed the deceased by direction of the accused. PW2 was a retired police officer who went to the scene of crime with the PW1. He was assigned to deal with the accused and that in interrogation of the accused, he admitted to have killed his uncle after they were involved in a fight. He also testified that it was the accused who showed them where he hid the machette he has used to kill the deceased and the same was found and seized. EXP1 was tendered to support the evidence that the machete that killed the deceased was found by the aid of the accused. PW3 was the police officer who received the machete from PW2 and as the exhibit keeper, he labelled the exhibit after receiving it on 30/11/2019. He tendered EXP2 the exhibit register and EXP3 which was the machete alleged to have been used to kill the deceased. On the other hand, PW4 was the person who first arrived at the scene of crime. He alleged to have been visting the deceased and found him long gone. He reported the matter to PW5 and two other people who were the deceased's children. His testimony was that after finding the scene and informed the victim, he then went back to his house to sleep. His suspicion as to the involvement of the accused was the fact that the accused and the deceased lived as neighbors in an isolated houses. PW5 was the son of the deceased. He went to the scene of crime after receiving information from PW4 and proceeded to the scene of crime where he found the deceased body and PW7 is the doctor who conducted post mortem of the deceased body where he found that the death was unnatural. The evidence adduced by the prosecution up until this point is a mere speculation. It is because the accused lives as a neighbor of the deceased that he is suspected to have murdered the deceased. But the evidence leaves a lot to be desired for reasons I will elaborate. I will begin with the evidence of PW1 who is the police officer that conducted and supervised investigation of the case. In his testimony he stated that when he went to the scene of crime he found the accused already arrested and when he interrogated him he admitted to have committed the crime. He explained to have explained to the accused his rights before the interrogation begun and that in the interrogations, the accused admitted to have committed the crime. However, against the dictates of Section 57 of the Criminal Procedure Act, Cap. 20 R.E 2022, no statement was reduced in writing by the PW1. Section 57 of the CPA provides: "57. -(1) A police officer who interviews a person for the purpose o f ascertaining whether the person has committed an offence shah\ unless it is in all circumstances impracticable to do so, cause the interview to be recorded. (2) Where a person who is being interviewed by a police officer for the purpose o f ascertaining whether he has committed an offence makes, during the interview, either orally or in writing, a confession relating to an offence, the police officer shall make, or cause to be made, while the interview is being held or as soon as practicable after the interview is completed, a record in writing, setting out- (a) so far as it is practicable to do so, the questions asked o f the person during the interview and the answers given by the person to those questions; (b) particulars o f any statement made by the person orally during the interview otherwise than in answer to a question; 6 (c) whether the person wrote out any statement during the interview ana' if so, the times when he commenced to write out the statement; (d) whether a caution was given to the person before he made the confession and, if so, the terms in which the caution was given, the time when it was given and any response made by the person to the caution; (e) the times when the interview was commenced and completed; and (f) if the interview was interrupted, the time when it was interrupted and recommenced." In the case at hand, there is no explanation whatsoever why the PW1, having noticed that the accused was admitting to the crime, during the oral interview, he did not make, or cause to be made, while the interview is being held or as soon as practicable after the interview is completed, a record in writing. Not only wasn't the interview recorded in writing, there was no reason adduced as to why the same was not done. I find the omission to be fatal given the fact that the prosecution evidence is circumstantial. 7 I am fully aware of the dictates of Section 31 of the Evidence Act, Cap. 6 R.E 2019 which provides: "When any fact is deposed to as discovered in consequence of information received from a person accused o f any offence in the custody of a police officer, so much o f such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant In order to rely on what seems to be oral confession in this case, the prosecution must have adduced evidence proving that the offence has actually been committed, and it is the accused that committed the alleged offence. Thereafter, the court may satisfy itself of the genuineness of the confession from the nature of the confession itself by the accused that he committed the alleged crime or took part in it. Now, in determining whether a confession was voluntarily made, the factors to be considered include whether the accused mentions facts of the case which could only have come to his knowledge by his being connected with the commission of the crime and whether the facts, even if known to him from some other source, are related by him in their correct sequence so as to establish his guilt in the commission of the alleged offence. It must also show an existence of a motive for the accused holding back or falsifying certain facts. Coming to the 8 case at hand, none of this was established, apart from the words alinizingua nikamuua" words which no explanation had been given as to why the confession was never reduced into writing. However, as I will continue to elaborate, the alleged confession of the accused is too general. All witnesses just say the accused said "alinizingua nikampiga panga" and this has been sung by all witnesses. This is too general a confession as to the guilt and since it was neither reduced in writing nor supported by any coherent independent evidence, it cannot be relied on to amount to the requirements of Section 31 of Cap. 6 cited above There is also the evidence of PW4 who allegedly visited the scene to greet the deceased, his testimony was that after he informed the deceased's children about what he found, he went home to sleep. He never got himself involved in further procedures and obviously, having been among the person who arrived at the scene, he should have a lot to tell the police including how he found the deceased body. Which takes me to the evidence of PW8, the police officer who drew the map of the scene of crime. He testified to have prepared the map under the aid of Ali Ndaruke who was directing him. However, the said Ali Ndaruke was not the person who was first to arrive at the scene of crime, neither was he the one amongst those who moved the deceased body inside the house. One may wonder how that map was prepared to implicate that the deceased body was lying outside the accused's house. The evidence of the accused denied the charges and he said he was in his farm continuing with his activities when he was arrested and tied by ropes. It is also pertinent to note that in their investigation, the prosecution witnesses indicated that the deceased's body had started decomposing and it was smelling. That means the incident did not occur on the same day hence the allegation that the accused was found in the bushes in an attempt to escape the arms of the law cannot be strong enough to amount to conduct subsequent to the crime. The possibility (without any formal accusations) that it was those who moved the body to the house who are concerned with the death of the deceased cannot be eliminated given the weight of what was testified. Having made the above observations and findings the dictates of the law and practice is that it is trite that before convicting the accused on an alleged confession, the court must be satisfied that the confession is a genuine one and that overall evidence adduced has successfully proved the guilt of the accused beyond reasonable doubt. As I said 10 earlier, the case further relies on circumstantial evidence and in a conviction based on circumstantial evidence, the evidence of the prosecution must be watertight in establishing the guilt of the accused such that no other hypothesis can be made other than that it was the accused who caused the death of the death. The prosecution has failed to discharge that duty and it is consequential to that I find the accused not guilty of the offence of murder that he was charged with and he consequently acquitted. Dated at Dar-es-salaam this 13th day of December, 2023 11