CRIMINAL SESSION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 30379 OF 2024 _____________________ REPUBLIC VERSUS AMMY LUCAS LUKULE RULING Date of last order: 20th March 2025 Date of Ruling: 21st March 2025 MTEMBWA, J.: The accused herein stands arraigned in three counts for the offense of Murder contrary to sections 196 and 197 of the Penal Code, Cap 16, RE 2022. In both counts, it was alleged that on 4th January 2018, at Goba– Matosa area, within Kinondoni District in Dar es Salaam Region, the Accused murdered PENDO LUKULE @ PENDO MAKALE, MAGRETH SAMWELI @ MAGRETH S. ADEMBA and AMMY LUCAS LUKULE. The Accused resisted the accusations. Consequently, the Republic had to adduce evidence in support of the charge. When PW7 sought to tender the Caution Statement she recorded, an objection was taken by the learned defense counsel that the same was taken in blatant violation of section 27 1 (3) of the Evidence Act. Expounding further on the objection, the learned counsel observed that, in the interview room, apart from PW7, there was F.8959 D/C Ramadhani, who continually threatened the Accused during the interview. As a result of the threats, he made his statement involuntarily. On his part, the State Attorney vigorously resisted the objection, maintaining that there was no police officer in the interview room part from PW7. He added that the two police officers who were initially there left the room, leaving the Accused and PW7. Even for the sake of argument that he was so threatened, the kinds of threats were never laid to enable the prosecution to arrange the evidence during trial within a trial, should the Court so direct. He observed that the objection raised is wanting of an explanation as to the kinds of threats applied to the Accused during the interview. On further note, the learned counsel referred this Court to the three criteria to be considered before a document is admitted in evidence. He cited the case of Republic vs. Halfani Bwire Hassan and 3 others, Economic case No. 16 of 2021, High Court, Corruption and Economic Division, where the Court referred the case of DPP vs. Sharifu Mohamed Alias Athuman and six others, Criminal Appeal No. 74/2026, where it was observed that the Court should consider 2 relevance, materiality, and competency of the witness before the document is admitted in evidence. He lastly implored this Court to overrule the objection and admit the Caution Statement. In rejoinder, the learned Defense Counsel insisted that DC Ramadhan threatened the accused during the interview. The learned counsel observed that the Accused would explain more about what kind of threats, not her. She insisted that the objection be sustained and the caution Statement not be admitted in evidence. Having dispassionately considered the objection and the parties' submissions, it was resolved that a trial within a trial be conducted to ascertain the Accused person's voluntariness. During hearing, the prosecution paraded two witnesses and tendered one documentary exhibit for identification. The Accused relied on his sworn testimony and tendered no documentary exhibit. Before I look into the nitty-gritty of the objection, I will briefly look at the evidence adduced by the parties. According to TWTPW1, PF. 25496 A/INSP JESCA METHEW CHINYUKA, on 15th January 2028, at around 15:10 hours in the afternoon, she was at the RCO’s office for Iringa Region. While there, ASP Mussa Kyando called her to his office. Upon arriving there, she found three persons, two of whom were police officers. One of them was a stranger to 3 her. There was DC Ramadhan, Joel, and another person she could not recognize in the Office. Later, ASP Mussa Kyando informed her that the stranger was a suspect in the murder incident (the Accused Person). He further instructed her to record the Caution Statement. TWTPW1 identified the Accused person in the dock by touching his shoulders. TWTPW1 continued to testify that, having been so instructed, ASP Mussa Kyando, DC Ramadhan, and DC Joel soon left, leaving her and the Accused in the room. When ASP Mussa Kyando left the room, he told DC Ramadhan not to go far from the interview room for her safety. Then, DC Ramadhan left the room and closed the door. She remained with the Accused in the room. The room had a cupboard, table, and four chairs. It had also a wooden door with a knot. Thereafter, she explained the rights the Accused was entitled to. Having presented it as such, she continued to record his Caution Statement and later gave it to the Accused so that he could pass through it before signing. She then signed after the Accused person, who also affixed his thumb. The Caution Statement was tendered for identification as TWTID1. TWTPW1 observed that the accused person looked physically fine during and after the interview. After the interview, she handled the Accused 4 and the Caution Statement to ASP Mussa Kyando. Examined further, TWTPW1 refuted the allegations of threats in the interview room. Cross-examined by the learned State Attorney, TWTPW1 admitted not to have initially testified on what ASP Mussa Kyando told DC Ramadhani because she was not examined as such. When referred to the witness statement of DC Ramadhan, TWTPW1 testified that he was present when she recorded the Accused’s caution statement. When referred to her witness statement, TWTPW1 admitted that the fact that ASP Mussa told DC Ramadhan to stay out of the room could not be traced. Re-examined by the learned State Attorney, TWTPW1 insisted that DC Ramadhan was not present when she was recording the Accused’s Caution statement. TWTPW2, F.5851 SGT JOEL testified that on 15th January 2018, he was at Central Police for Iringa Region. While there, ASP Erick Mwangosi called him to go to ASP Mussa Kyando’s office. After arriving there, he was ordered to search for and arrest the accused, who had been sported around the agricultural office in Iringa town by then. Initially, he was told of the physical appearance of the accused. He complied with the order in the company of DC Ramadhani. Having arrived here, they parked the vehicle while waiting for the suspect. Soon, they saw a person with the same appearance and followed him to Gangilonga, where they stopped and 5 arrested him. By then, he was in a state of fear. Having detained him, they took him directly to the RCO’s office in Iringa Region. Having arrived there, they went directly to ASP Mussa Kyando’s office, where A/Insp Mwangosi was there. A few minutes later, ASP Mussa Kyando called PW7, who, having arrived, was ordered to record the Caution Statement of the Accused. Both left the interview room, leaving the Accused and PW7 alone. Before that, ASP Kyando told DC Ramadhan not to go far because PW7 was a woman, considering the seriousness and gravity of the crime committed. Cross-examined by the Defense Counsel, TWTPW2 testified that he heard A/INSP Erick telling DC Ramadhan to remain outside the interview room for PW7’s safety. Re-examined by the learned State Attorney, TWTPW2 observed that he was there to testify on how he arrested the Accused. And that marked the end of the prosecution evidence. TWTDW1, AMMY LUCAN LIKULE, the accused person, testified that on 4th January 2018, he was at Soweto within Mwanjelwa Ward in Mbeya Region because he was working there. His family used to live in Dar es Salaam. On 15th January 2018, he went to Iringa town to buy pesticides for his Farm. While there, he visited the place where the pesticides were sold. Having bought them, he left to find transport back to Mbeya Region. While on the way, four people blocked and arrested him. Initially, they introduced 6 themselves as police officers. It was in the afternoon. Having been so arrested, he was taken to RCO’s office, and after arriving there, he was taken to the room where SGT Joel and DC Ramadhan were there. Soon thereafter, another policewoman entered it. In the room, there were chairs and a table. TWTDW1 testified further that when he was about to sit down, DC Ramadhan beat him down. Thereafter, another policeman named Kyando entered the room and slapped him. Soon thereafter, PW7 said to him “we baba mbona hufanani na hayo uliyoyafanya?”. He asked what it was, but DC Ramadhan beat him on his elbow. Then Kyando told PW7 that “hakikisha huyu anafuata maelekezo niliyokueleza.” Then Kyando and Joel left the room, leaving TWTDW1, PW7, and DC Ramadhan. PW7 then produced the paper and asked him about his name and age. She then asked him why he killed and wondered whom he killed. Ramadhan then told him “sasa nitakuonesha”. He beat him on his knees and elbows. Then, PW7 and DC Ramadhan ordered him to put off his clothes. By then, DC Ramadhan was directing the pistol to him. In a state of fear, he undressed himself and remained naked. DC Ramadhan then beat him on his hand and forced him to write his name and signature. Thereafter, he was told to dress up. 7 When TWTID1 was referred to, TWTDW1 recognized it and located his name and signature. He insisted that the Caution Statement should not be admitted in evidence because it was taken involuntarily. Cross-examined by the learned State Attorneys, TWTDW1 testified that he was indeed arrested at Iringa and thereafter taken to the RCO’s office, where PW7 cautioned him. He admitted that he had no anyone to prove that he was beaten. Cross-examined further, TWTDW1 admitted that he objected to the Caution Statement's admissibility because it was obtained involuntarily after applying threats, although the same has his name and signature. He added further that he had surgery on his body, and DC Ramadhan used the Pistol to pluck it. He felt pain. He was beaten on the hand by DC Ramadhan, and blood oozed from the wounds. He wanted to go to the Hospital, but the police officers refused. Cross-examined further; TWTDW1 testified that earlier on, his objection was only based on threats and beating or torture. By the time he was taken to the prison, the wounds had already been recovered. Re-examined by the learned defense counsel, TWTDW1 testified that the objection raised was related to threats and torture or beatings. He was threatened with being killed and the Pistol was plucked on his surgery. 8 Having dispassionately considered the objection raised and the submissions for and against it, the question is whether an objection to the admissibility of the caution statement recorded by PW7 is meritorious. As prefaced before, the objection had been pegged on section 27 (3) of the Evidence Act. Expounding further on the objection, the learned counsel observed that, in the interview room, apart from PW7, there was F.8959 D/C Ramadhani, who continually threatened him during the interview. As a result of the threats, he made his statement involuntarily. For easy reference, I shall reproduce section 27 (3) of the Evidence Act; 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 was made or by any member of the Police Force or by any other person in authority. From the above-quoted segment of the law, an admission of confession may be held involuntary if it is believed that the same was induced by threats, promises, or any prejudice that the Court may consider prejudicial offered by the police officer and any member of the police force or other person in authority. According to Collins's British English dictionary, “Threat” can convey different meanings depending on the context. In the ordinary sense, " threat” is a declaration of the 9 intention to inflict harm, pain, or misery or indicate imminent harm, danger, pain, a black look, or an implicit threat through other specific behavior. Oxford Dictionary defines it as a statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done. Ideally, threat means a status in which hostile actions, persons, or things might cause harm, pain, misery, or danger. It is the prosecution's duty to prove that F.8959 D/C Ramadhani did not act hostile toward the accused during the interview. In response, the trial brought TWTPW1, who testified that the accused was not threatened during the interview. When ASP Mussa Kyando left the room, he told DC Ramadhan not to go far from the interview room for her safety. Then, DC Ramadhan left the room and closed the door. She remained with the Accused in the room. Her testimony was corroborated by the evidence of TWTPW2, who testified that only PW7 and the Accused were in the interview room. However, ASP Mussa Kyando told DC Ramadhan not to go far because PW7 was a woman and considering the seriousness of the crime committed. The defense brought TWTDW1 (Accused), who testified that he was arrested and taken to the RCO’s office at Iringa. After arriving there, he was 10 taken to the room where SGT Joel, DC Ramadhan, and another he could not remember. He added further that when he was about to sit down, DC Ramadhan beat him down. Thereafter, another policeman named Kyando entered the room and slapped him. Soon thereafter, PW7 said to him “we baba mbona hufanani na hayo uliyoyafanya?”. He asked what it was, but DC Ramadhan beat him on his elbow. Then Kyando told PW7 that “hakikisha huyu anafuata maelekezo niliyokueleza.” Then Kyando and Joel left the room, leaving TWTDW1, PW7, and DC Ramadhan. PW7 then produced the paper and asked him about his name and age. She then asked him why he killed and wondered whom he killed. Ramadhan then told him “sasa nitakuonesha”. He beat him on his knees and elbows. Then, PW7 and DC Ramadhan ordered him to put off his clothes. By then, DC Ramadhan was directing the pistol to him. In a state of fear, he undressed himself and remained naked. DC Ramadhan then beat him on his hand and forced him to write his name and signature. Thereafter, he was told to dress up. At the outset, I should point out that the objection raised by the learned defense counsel was too specific. It was pegged on the fact that DC Ramadhan applied the treats to the Accused during the interview. During hearing, the Accused traversed to other objections not raised before. He brought up new objections related to torture and inhuman or degrading 11 action, which were not even contemplated by the prosecution during hearing. He also named PW7 as a participant in inhuman and degrading actions as she ordered him to dress off his clothes and remain naked. The objections relating to torture, cruelty, and degrading actions were not raised before, and thus, the prosecution witnesses could not address their minds to capture them. In my evaluation, I consider the objections related to torture, cruelty, and inhuman and degrading actions as afterthoughts, and I will disregard them. Had it been a case, the defense counsel would have included them as separate objections when objecting to the admissibility of the Caution Statement. It is disturbing why the accused was keen enough to remember the threats applied to him by DC Ramadhan and then blatantly forgot the torture, cruelty, inhuman and degrading actions done to him. PW7 testified during a trial with a trial as TWTPW1. Surprisingly, no one cross-examined her inhuman or degrading actions as alleged. Back to the objection, as said before, the prosecution brought TWTPW1 and TWTPW2 during trial within a trial. It is not in dispute that TWTPW1 was in the interview room. Similarly, there is no dispute that TWTPW2 initially was in the interview room before he left, leaving TWTPW1 and the Accused alone. Both witnesses proved to the satisfaction of the 12 Court that DC Ramadhan was not in the interview room; however, ASP Mussa Kyando told him not to go far because TWTPW1 was a woman, considering the gravity and seriousness of the crime committed. Considering the testimonies of TWTPW1 and TWTPW2, I am satisfied that there were no threats applied to the Accused during the interview by DC Ramadhan. TWTPW1 and TWTPW2 were direct and coherent and thus credible witnesses. The defense evidence did not cast any doubt; somewhat, it was contradictory and raised new issues or objections that had not been contemplated earlier. To that end, the preliminary objection raised by the defense counsel to the admissibility of the Caution Statement recorded by PW7 is hereby overruled. That said, the Caution of Statement is admitted as Exhibit P7. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 21st March 2025. H.S. MTEMBWA JUDGE 13