Criminal Session Case 7000 of 2024 Ruling MrishaJ

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF SUMBAWANGA AT SUMBAWANGA CRIMINAL SESSION CASE NO. 7000 OF 2024 REPUBLIC VERSUS NCHAMBI s/o IKUMBO @ MBOGOMAJI............................ 1st ACCUSED LUSHINDIKA s/o HINDA.................................................. 2nd ACCUSED RULING 27 & 28 February, 2025 W MRISHA,J. J This ruling is intended to determine the voluntariness or otherwise of the first accused’s cautioned statement following the objection of his counsel, under section 27 of the Evidence Act, Cap 6 R.E. 2022 (the Evidence Act), that the same should not be admitted in evidence as it was procured through torture. It is due to such allegation that the main case had to be stayed in order to let a trial within a trial be conducted, as per the law. During hearing of the said trial, each party had one witness. For the respondent 1 Republic, No. G.2662 D/CPL Gilbert testified as PW1 (PW6) to the effect that he is the one who was assigned to pick the first accused from the lockup on 28.11.2023 and record his cautioned statement. Before doing so, he prepared the interrogation room as well as the recording tools and complied with all the preliminary procedures including introducing himself to the first accused a police officer, letting the accused to introduce himself to hi that he is accused of committing the offence Also, he informed the first ac t to make or not making his statement he wants to make his statement, he has rig to ive, friend or lawyer to be present whe which would later be used as evidenc co f law. After consented to make his statement alone before PW1 w he allowed to record the same for him. PW1 also testified that after cautioning the first accused from 2014 hours to 2028 hours, he began to record the cautioned statement of the first accused at 2030, and finished doing so at 2142. Thereafter, he read the statement to the said accused who confirmed to him that the same was correct, then he asked the accused to sign his 2 part by his right thumb print and finally he signed the certification part and returned the accused person to the lockup. During all that time, the said accused was in good condition. During cross examination, PW1 was asked several questions and most of them intended to know if the first accused person whom he testified to have taken from the lockup to the interrogation room and recorded his cautioned statement, was in good conditi ther question was intended to ascertain if while picking th the police lock up to the interrogation room ed and if during that time, the said accused was hand cuffed. His response was that the said accused was in good condition and he had no weapi the lock up, all the way to the interrogation room. He also replied that the accused was not hand cuffed. On the other hand, the first accused namely Nchambi Ikumbo who testified as DW1, conceded that PW1 is the one who recorded his cautioned statement on 28.11.2023 at Laela Police Station, and that from the time PW1 picked him from the lockup to the interrogation room for interrogation, he was in good condition. 3 However, he lamented that he was threatened and tortured when he refused to sign a paper given to him by PW1 without knowing its contents. He clarified that upon seeing that he was not ready to sign that paper, PW1 called his fellow policeman who then entered into the interrogation room with a gun, and started asking him to sign the said paper lest he would be killed by a gun. That upon maintaining his stance of not signi aid 1 and his fellow police officer ordered him to off , bend down and touch his legs, then they i en his hands and legs, lifted and put it b o the extent that he found himself hanging betwee that is when he began to be tortured by bei rint and sustained a wound. DW1 a his fellow continued to beat him while insistin him he papers otherwise they would kill him, he decide e papers in order to survive. When probed by the counsel for rosecution Republic, DW1 said he was beaten on his foot print and knee, but he was not able to complain to other policemen after being taken to the lock up. Also, DW1 responded that he told a Magistrate that he was tortured, but the Magistrate just ended up by asking him if the Prison Authorities do 4 provide treatment facilities. He further stated that when taken to the Prison Remand, he was only inspected to ascertain if he had weapons, and that if a remandee or prisoner sustains injury, they normally take him to the hospital for some treatment. From the above evidence, the issue is whether the first accused made his cautioned statement before PW1 voluntarily. Th iection raised by the counsel for the first accused is based o at first accused was tortured and therefore cau ment, was involuntarily made. Under such circumstanc nt t the duty of proving that the said cautioned te t nt ily made by the first accused rest on the P is is fortified by the provisions of section t which declares that: on ing that any confession made by an accused asv voluntarily made by him shall He on the prosecution Again, it is important to note that for confession to be held to be involuntarily made, it must be proved that it was induced by any threat, promise or other prejudice held out by the police officer to whom it was made or by any member of the Police Force. This is provided under sub section (3) of the section 27 of the Evidence Act. 5 Not only that, but also it is instructive to note that a trial within a trial is a case like any other criminal case, and therefore, the principle on standard of proof do apply. Section 3 (2) (a) of the Evidence Act provides that: “A fact is said to be proved when- (a) in criminal matters, except where any statute or other law provides otherwise, the court is cution beyond reasonable doubt that The above provisions of the law entail therefore, that the court has to be satisfied by the prosecution beyond any reasonable doubt that the alleged fact actually exists. Coming to the case at hand, since the first accused has complained ortured, then by virtue of section 27 (2) Eviden it he duty of the prosecution to prove that the said accused was not tortured or affected by any vitiating factors stipulated under subsection (3) of section 27 of the Evidence Act. I have had enough time to go through the evidence of PW1 who testified in the main case as PW6, and observed that he recorded the cautioned statement of the first accused (DW1) when the latter was in good condition something which the first accused has also conceded in 6 the course of adducing his evidence before the court during a trial within a trial. The allegations that the said accused was tortured and threatened, were raised by the said accused counsel in the course of objecting the tendering of that cautioned statement and during hearing of defence case by the first accused. Looking at the evidence of DW1, it appears that he has thrown balls to PW1 and his fellow police officer, as the policemen who threatened and tortured him when he refused to sign a paper given to him by PW1. However, neither documentary evidence was tendered by him to prove that he sustained injuries on his foot print and knee after been tortured by the said police officers, as he has claimed in his evidence, nor is there any evidence from him that he complained to, and asked the Prison Authorities to take him to the hospital for treatment of injuries which he claims to have been caused by police tortures Also, my examination of the questions posed by the defence counsel to PW1, reveals that they were too general because they did not press PW1 to tell why the first accused has a scur on his foot print is he says the latter was in good condition or why did PW1 call his fellow police 7 into the interrogation room while the law requires only him and the suspect to be present during such interrogation. Since, PW1 insisted in his evidence before the court, the first accused and the defence counsel, that the said accused was in good condition at all times, then one would have expected the defence counsel to lead his client to produce a documentary proof like PF3 or a medical report, in order to convince the court, believe that the said accused was actually tortured before he made his statement to PW1. This means that the evidence of PW1 was not properly controverted during cross examination to shake its credibility. Again, there is the issue of threat by PWl’s fellow whom the first accused has mentioned in his defence. Such allegation was however, not raised by the defence counsel be it in the course of raising an objection against the prayer to tender his client’s cautioned statement as an exhibit, or during cross examination. Besides that, in the course of adducing his evidence before the court, the first accused claimed that he has a scur which he sustained after being tortured by PW1 and his fellow. However, since no documentary evidence was tendered by him, I find it difficult to believe that such scur 8 was resulted from the torture which he alleges to have been inflicted by the police officers, including PW1. Thus, based on the foregoing reasons, I am of the settled view that the prosecution Republic has proved beyond any reasonable doubt, that the cautioned statement sought to be tendered by PW6 (PW1) as an exhibit, was voluntarily made by the first accused. Hence, on that note, I find the objection raised by the counsel for the first accused to be unmerited and proceed to overrule it. This means that the said cautioned statement is admissible in evidence, and PW6 is entitled to tender it as an exhibit. ^^k It is so ordered. DATED at SUMBAWANGA this 28th day of February, 2025. ^■7'/^/^'''^ A.A. MRISHA JUDGE 28.02.2025 9