james so msumule jembe others vs republic 2024 tzca 176 13 march 2024

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MKUYE. J.A., KIHWELO, J.A. And MGEYEKWA, J.A.^ CRIMINAL APPEAL NO. 284 OF 2021 JAMES S/O MSUMULE @ JEMBE.,.................................... . 1st APPELLANT EMMANUEL S/O NGAILO @ IMMA...................................... 2nd APPELLANT IZACK S/O NGAILO.......... ................................................. 3rd APPELLANT ANITHA D/O MBWILO.................................................... . 4™ APPELLANT UPENDO D/O MLIGO.......................................................... 5™ APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from Decision of the High Court of Tanzania, at Iringa (Matoqolo, J.) dated the 30th day of March, 2021 in Criminal Sessions Case No. 84 of 2014 JUDGMENT OF THE COURT 4th December, 2023 & 13th March, 2024 MKUYE. J.A.: In this appeal, the appellants, James Msumule @ Jembe, Emmanuel Ngailo @ Imma, Izack Ngailo, Anitha Mbwilo and Upendo Mligo (the 1st, 2nd, 3rd, 4th and 5th appellants) respectively, were charged with an offence of murder contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E. 2002; now R.E. 2022] (the Penal Code). According to the information that was laid by the prosecution, it was alleged that on i 13th day of May, 2012 at Usalule village within the District and the Region of Njombe, the appellants murdered one Alice Mtokoma (the deceased). When the charge was read out to the appellants each entered a plea of not guilty. However, upon a full trial, they were all convicted and each was sentenced to the mandatory punishment to suffer death by hanging. The prosecution marshalled seven (7) witnesses and tendered a number of documentary exhibits. In defence, the appellants were the only witnesses without any documentary exhibits. A brief background underlying this appeal goes thus: On 11/5/2012, at about 8:00 p.m., Ena Haward Mandele (the deceased's granddaughter) (PW4) was at home together with her grandmother and her uncle Nerbat Mlewa. Then, came one person who asked to be taken to the ten-cell leader by the deceased but her uncle prohibited her to accompany him. Then, that person left. On 13/5/2012 at about 10:00 p.m., a certain man knocked the door and when welcomed he refused to enter inside the house. The deceased got outside and PW4 heard that person telling the deceased that she was needed by Jerome Mtokoma at Igalonga for a meeting. Then the deceased left with that person but she never came back. On the following day, PW4 went to school but later she was called by her 2 teacher. She found her father and he took her to the village hamlet where she got to know that her grandmother was dead. On 13/3/2012, Insp. Yasinta Moshi (PW1) received information about the murder incident at Usalule village where, one, Alice Mtokama was allegedly killed on witchcraft beliefs. She called D/Cpl. Saleh (PW5), DC Nurdin and Dr. Mtitu and went to the scene of crime. PW5 drew the sketch map and PW2 conducted postmortem examination which revealed that the decaeased's death was due to severe haemorrage and the Postmortem Examination Report thereof was admitted as Exh. PI. No. E. 4186 D/Cpl Saleh (PW5), recorded the cautioned statements of all the appellants of which three of them were admitted as Exh. P2, P3 and P5 while others were not admitted. He also convened a meeting of the relatives following a tip off from an informer that the 4th and 5th appellants should be interrogated regarding the outcome of the witchdoctor's finding that the deceased had killed the 4th appellant's son who was also the 5th appellant's husband through witchcraft. Cyprian Mwananzumi, (PW3) recorded the extra judicial statement of 2nd appellant but was not admitted in evidence. Insp. Cosmas Herman (PW6) conducted an identification parade in which Emmanuel Ngailo and Izack Ngailo were purported to be 3 identified and according to Exh, P7 Emmanuel Ngailo was the only suspect who was allegedly identified by Nerbat. In their defence, all appellants disassociated themselves from the commission of the offence. At the end of the trial, the trial court convicted all appellants relying on the confessional statements of the 2nd, 3rd and 5th appellants (Exhs. P4, P5 and P3 respectively). It was convinced that in their cautioned statements they spoke nothing but the wholesome truth that they participated in the killing of the deceased. Ultimately, they were sentenced to suffer death by hanging as alluded to earlier on. Aggrieved by the outcome of the trial court, the appellants have appealed to this Court on a joint memorandum of appeal consisting five grounds of appeal which can be paraphrased as follows: 1. That, the case was not proved beyond reasonable doubt 2. That, the appellants were charged and convicted under a dead law. 3. That, the trial court erred in relying on uncorroborated evidence from exhibit P2, P3 and P5. 4. That, the trial court erred in failing to hold that the cautioned statements o f the 2nd, J d and $ h appellants were not voluntarily procured. 5. That, the trial court erred in believing that DW2 (the 2nd appellant) was properly identified by PW4. When the appeal was placed before us for hearing, the appellants were represented by Messrs. Mussa Mhagama, Frank Ngafumika, Tunsume Angumbwike, Innocent Kibadu and Octavian Mbungani, all learned advocates, whereas the respondent Republic had the services of Ms. Pienzia Nichombe, learned State Attorney. On being invited to expound their grounds of appeal, Mr. Ngafumika took the floor on behalf of the other learned advocates. At the outset, he intimated to the Court that although they had fronted six grounds of appeal, their argument would base on the first ground of appeal that the prosecution's case was not proved beyond reasonable doubt and that the other grounds would be argued in the course. Having done so, Mr. Ngafumika prefaced his submissions by stating the key principles which are required to be observed in proving criminal offences. He mentioned the said principles such as: one, proof of mens rea and actus reus in criminal matters; two, it is the duty of prosecution to prove the case; three, that, the standard of proof is beyond reasonable doubt. Four, conviction cannot base or uncorroborated confession of a co-accused. Five, conviction cannot base on weakness of defence but on the strength of the prosecution evidence. Six, every doubt that is established is to be resolved in favour of the accused person. 5 He went on arguing that, in this case, it was proved that Alice Mtokoma died and her death was unnatural as was also confirmed by the Postmortem Examination Report (Exh PI). However, he contended that, it was not proved that it was the appellants who killed the deceased. Elaborating this point, the learned counsel pointed out that, the appellants were mainly convicted based on circumstantial evidence. He argued that for this kind of evidence to be relied upon, it should irresistibly point to the guilty of the accused in the sense that it should not bring more than one interpretation. To fortify his stance, he referred us to the case of Augustino Lodaru v. Republic, Criminal Appeal No. 90 of 2013 (unreported). He added that, the other evidence that was relied upon was the 2nd, 3rd and 5th appellant's cautioned statements Exhs. P4, P5 and P3 respectively), however, in all the statements the deceased Alice Mtokoma had not been mentioned. He was of the view that, since there was no mention of the deceased in the said cautioned statements, there cannot be any evidence to corroborate the circumstantial evidence. To buttress his argument, he referred us to the High Court's decision in the case of the Republic v. Emmanuel Barakantitiye @ Rais, Criminal Sessions Case No. 67 of 2021 (unreported) in which the term corroboration was defined to mean "to strengthen, to make a statement or testimony more credible by confirming facts or evidence...." He also referred to the case of Nuru Venevas Joseph Deus @ Sahani and Another v. Republic, Criminal Appeal No. 564 of 2019 (unreported) in which the Court declined to sustain the conviction on the basis of the other appellants confession in the absence of any other corroborating evidence as per section 33(2) of the Evidence Act which prohibits a conviction of an accused person to base solely on a confession of a co­ accused person. Mr. Ngafumika went on assailing the trial court's observation that it warned and satisfied itself that the evidence was true, when looking at the resemblance of the language used in those statements contending that there was an explanation that all of the cautioned statements were recorded by a single person one No. E. 4186 D/CpI Saleh, (PW5). Apart from that, he argued, all the appellants were arrested by him; he was involved fully in the investigation of the case; and also that, he convened the meeting for unveiling the suspects which made the possibilities for manufacturing evidence for other suspects very possible. In his view, this created a doubt which ought to be resolved in favour of the appellants. The learned counsel's another area of complaint was that, the observation that was made by the trial court that the appellants offered nothing substantial in their defence was not proper, as in their view, their defence was so crucial particularly on the failure to mention the deceased in the cautioned statement and insisted that it is the strength of the prosecution case which is required. He cited the cases of John Makolobela and 2 Others v. Republic [2002] T.L.R 296 and Republic v. Kerstin Cameroon [2003] T.L.R. 84 in support of his argument. The learned counsel also assailed the trial court's finding that the evidence of the cautioned statements was corroborated by PW4 contending that PW4/s evidence was of no evidential value as her statement was not read over during the committal proceedings which was in contravention of section 289 of the CPA and she was not called as an additional witness. Regarding the identification parade, Mr. Ngafumika challenged it contending that its identification parade register has several ailments such as: one, although two suspects, Emmanuel Ngailo and Izack Ngairo were earmarked for identification, it is not shown where Izack Ngairo stood in the identification parade. Two, the suspects did not append their signatures in the identification parade register and were not asked if they were satisfied with the manner the identification parade was conducted. He was of the view that, the manner the identification parade was conducted creates doubt which is to be resolved in favour of the appellant. In the end, the learned counsel beseeched the Court to find that the appeal is merited and allow it. In reply, Ms. Nichombe prefaced her submission by declaring her stance that she did not support the appeal. In essence, she agreed with the basic principles in criminal law as were expounded by Mr. Ngafumika in relation to the requirement to prove both mens rea and actus reus in criminal matters, the onus of proof, standard of proof, conviction is to base on the strength of prosecution evidence and not the weakness in defence and that any doubt established is to be resolved in favour of the accused. She also agreed that the appellants were convicted on among pieces of evidence the cautioned statements of the 2nd, 3rd and 5th appellants of which the court was obliged to warn itself that the evidence is nothing but the truth. Regarding the contention that the cautioned statements did not mention the name of the deceased, she argued that in the 5thappellant's cautioned statement (Exh. P3), the 5th appellant stated that at the witchdoctor, Semtokoma and Madola were mentioned and that 9 according to the 4th appellant, Madola had a reason to kill her child but not the deceased herein as her son (the 4th appellant's son) had done nothing wrong to the deceased. The learned State Attorney submitted further that, the 5th appellant spearheaded the killing of the deceased since through the 3rd appellant, she hired the 1st and 2nd appellants to kill her. As to the resemblance in the cautioned statements, she argued that since the 5th appellant was a key player in the plan and through the 3rd appellant the 1st and 2 appellants came into play, the cautioned statements of the 1st, 2nd and 3rd appellants had to resemble. On the grievance, that PW5 recorded the statements of all appellants and, therefore, he knew the nature of the case, she argued that there is no law that prohibits the investigator to record the accused's statements. In any case, she argued, PW5 was assigned to investigate the case by PW1, the OCD. On the issue, that the trial court relied on uncorroborated evidence, it was the learned State Attorney's argument that the court warned itself as shown at page 651 of the record of appeal. As regards the evidence of PW4 whose statement was not read over in the committal proceeding, she readily conceded to it and urged the Court to expunge her evidence. 10 Relating to the identification parade register (Exh. P7), she equally conceded that according to the statement of Nerbat which was produced by PW6, he identified only one accused although it shows that two suspects were to be identified. She also agreed that Exh. P7 was defective and that it should be expunged. However, despite all those infractions, she maintained that even if the evidence of PW4 and Exh. P7 is expunged, the conviction can still be sustained based on the 5th appellant's cautioned statement. She, therefore, urged the Court to dismiss the appeal. In rejoinder, Mr. Ngafumika argued that, although in Exh. P3, Semtokoma was mentioned as the deceased, in this case the deceased is Alice Mtokoma who is a different person from the person mentioned in that statement. That, the law does not prohibit the investigator to record accused statement, he argued that, it was a bad practice as it creates doubt on the statements themselves which doubt, should be resolved in favour of the appellants. He concluded by stressing that, if the evidence of PW4 and the identification parade is expunged, there remains no other evidence to corroborate the cautioned statements. He lastly implored the Court to find that the appeal has merit and allow it. 11 We have examined the grounds of appeal, the rival submissions from either side and the record of appeal and, we think, we are now in a position to deliberate on the appeal. In the first place, we are in accord with both counsel on the key principles in proving criminal cases in that, one, in criminal matters mens rea and actus reus are to be proved. Two, the duty of proving criminal cases lies on the prosecution. Three, the standard of proof required in criminal cases is beyond reasonable doubt. Four, conviction cannot base on uncorroborated confession. Five, conviction cannot be found on the basis of weakness of defence but on the strength of the prosecution evidence. Six, circumstantial evidence can be relied upon to mount a conviction so long as it irresistibly points to the guilty of the accused. Seven, whenever a doubt is established, it is to be resolved in favour of the accused. In this case, it is common ground that, one, Alice Mtokoma is dead and her death was unnatural as was proved by Dr, Gervas S. Mtitu, (PW2). His evidence was corroborated by PW1, PW4 and PW5 who saw her dead body with cut wounds and the Postmortem Examination Report (Exh. PI) which revealed that the deceased's death was due to severe hemorrhage caused by cut wounds on her head. 12 The main issue is who caused the death of the deceased. It is the contention by Mr. Ngafumika, learned counsel for the appellants that it was not established as to who caused it. On the other hand, the learned State Attorney is of the view that it was proved through the cautioned statements particularly, the cautioned statement of DW5 (Exh P3). It is true that the appellants were convicted on the basis of circumstantial evidence as there was no eye witness who witnessed the incident. As it was correctly argued by Mr. Ngafumika, in order for the circumstantial evidence to be relied upon it has to irresistibly point out on the guilty of the appellants as was stated in the case of Augustino Lodaru (supra). (See also: Mark Kasimiri v. Republic, Criminal Appeal 39 of 2017, Gabriel Simon Mnyele v. Republic, Criminal Appeal 437 of 2007 and Sikujua Idd v. Republic, Criminal Appeal 484 of 2019 (all unreported). For instance, in the case of Augustino Lodaru (supra), the Court stated that: "We should note at the outset that it is settled law that a court o f law may ground a conviction based solely on circumstantial evidence. This is so where the said evidence irresistibly lead to the inference that it was the appellant and nobody else who committed the offence. Such evidence must, also, be incapable o f more than one 13 interpretation and the chain o f Unking such evidence must be unbroken" It should also be noted that when the case is based on circumstantial evidence there are three tests which it must pass. One, the circumstances from which an inference of guilty is sought to be drawn, has to be cogently and firmly established; two, the circumstances must be of a definite tendency unerringly pointing towards the guilty of the accused; and three, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. We shall be guided by the above principle to establish if the circumstantial evidence that was relied upon to convict the appellants irresistibly pointed to the guilty of the appellants. In this case the circumstantial evidence is twofold. Firstly, the evidence from PW4 and Nerbat through his statement (Exh. P7) that they identified the 2nd appellant when he came at their home on 11/5/2012 at about 8:00 p.m. and asked the deceased to take him to the ten cell-leader, he being a stranger in the village but Nerbat prohibited her from doing so. PW4 also testified in court that Nerbat, on being called by the police to identify the stranger who visited them on 14 11/5/2012, he allegedly managed to identify the 2nd appellant in the identification parade prepared by PW6. This was also reflected in Identification Parade Register (Exh. P6). The follow up question is whether the identification evidence irresistibly point to the guilty of the 2nd appellant which we would endeavour to answer in due course. There is no question that PW4's evidence was heavily relied in convicting the appellants particularly that she saw when the 2nd appellant visited the deceased's home on 11/5/2012 seeking to be shown to the cell leader and identified him in the identification parade held on 28/5/2012. However, regarding PW4/s evidence, there is a complaint that it cannot be relied upon since her statement was not read over during committal proceedings. Section 289 (1) of the CPA gives guidance on such situations. It states: 1) No witness whose statement or substance of the evidence was not read at the committal proceedings shaii be called by the prosecution at the trial unless the prosecution has given a reasonable notice in writing to the accused person or his advocate o f the intention to call such witness. 2) The notice shall state the name and address o f the witness and the substance o f the evidence which he intends to give" 15 According to the above provision, a witness whose statement or gist of his evidence was not read out during the committal proceedings is not allowed to testify in court except that a reasonable notice is given to the defence of such intention to testify. And, such written notice to the defence side is required to contain the name, the address and the substance of the evidence, the said witness intends to give. The above provision was amplified in the case of Hamisi Maure v. Republic, [1993] TLR 213 to the effect that a witness whose statement or substance of evidence was not read at the committal proceedings, is not to be called by the prosecution unless a notice in writing to the accused or his advocate to call such witness is issued. Upon the perusal of the record of appeal at page 31 thereof, we are in accord with both counsel that Ena Haward Mandele (PW4) was not among the witnesses who was listed as an intended witness during committal proceedings. Neither was her statement read over as required by the law. Also, there was no notice of intention to call her issued on the defence side. Yet, PW4 as shown at pages 117 to 120 of the record of appeal, testified in court while she was not listed and her evidence was not read over during committal proceedings. This was in contravention of the requirements under of section 289 (1) of the CPA and hence, since PW4 gave evidence without her being called as an additional witness as per section 289 (2) of the CPA, we are constrained to expunge her evidence. The complaint relating to the identification parade and its register which also forms part of circumstantial evidence is that it was conducted in contravention with the required procedure since the appellants were not informed their rights; and after the completion of the exercise (identification parade) they were not asked if they were satisfied that the same was conducted fairly. The learned State Attorney equally conceded to the anomaly. The Police General Order (PGO) No. 232 gives guidance on the manner identification parades are to be conducted. It is issued by the Inspector General of Police under section 7 (2) of the Police Force and Auxiliary Services Act, [Cap 322 R.E. 2002]. Generally speaking, the PGO provides for the procedure on how to conduct identification parades, who can conduct such parades (the Assistant Inspector of Police or above); the rights of the suspects and how to prepare and maintain the record (register of such exercise) It is, therefore, incumbent that the said procedure must be complied with whenever an identification parade is conducted - See: Maisa Lucas Mwita @ Kipara v. Republic, Criminal Appeal No. 119 of 2011 (unreported). It is also important to emphasis that, if the said procedure is not followed, the evidence 17 thereof would be rendered worthless - See also: Raymond Francis v. Republic (1994) TLR 100 in which it was stated that, if rules governing the conduct of identification parade are breached, then it would render the identification parade evidence of little value. Also see: Mussa Hasan Barie and Another v. Republic, Criminal Appeal No. 292 of 2011 (unreported). The identification under scrutiny was conducted by Cosmas Herman (PW6), a former Assistant Inspector of Police before. PW6 testified that Nerbat Mhewa was the identifying witness who allegedly managed to identify Emmanuel Ngailo (the 2nd appellant) in the parade as shown in Exh. P7. According to Exh,P7, two suspects were to be identified as was admitted by PW6, but it appears that only the 2nd appellant was lined up and identified while the other one was not identified and even his participation in the parade is not shown in the register. But again, PW6 said he conducted two parades on the same day while there is no record to that effect which contradicted with other witnesses that there was only one identification parade that was conducted. The effect of these infractions is to render the evidence relating to identification parade doubtful. The other limb of the complaint is that the 2nd appellant who was allegedly identified was not asked if he was satisfied with the manner 18 the identification was conducted and that he did not sign the identification parade register as required by the PGO. This was also an issue in the case of Raymond Francis (supra). The Court held that: '7/7 those circumstances, it appears to us that the identification parade was not carried out properly in terms o f the applicable procedure set out in the case o f REX v. Mwango s/o Minaa (1939) 3 EACA 29. As such it was o f little value as evidence against the appellant..." As alluded to earlier on, the learned State Attorney conceded to the anomalies raised. As was submitted by Mr. Ngafumika, the identification parade register (Exh. P6) at pages 536 and 537 does not show if the 2nd appellant was asked about his satisfaction on the manner the parade was conducted and what was his answer. This was confirmed by PW6, who conducted the identification parade that he did not ask the suspects if he had any complaint over the manner the identification parade was conducted and he admitted that failure to do so meant that the 2nd appellant was not given his rights properly. But again, from the same Exh. P6, we note other anomalies as follows: One, while the same seems to have intended to have one suspect to be identified, as was even stated by PW6, but the officer who conducted it listed two suspects, that is, Emmanuel Ngailo and Isack Ngailo as suspects to be identified. Yet, in his testimony, PW6 said it involved one suspect and that Emmanuel Ngailo was identified by Nerbat Mhewa. Two, according to the identification parade Register, the said Nerbat Mhewa identified the said Emmanuel Ngailo standing between the 7th and 8th lined up persons while in between there was no person standing. Three, the said Nerbat did not give a description in his statement (Exh. P7) on how he identified the person who came at their home on 11/5/2012 and requested to be taken to the cell leader. He just explained to have identified him by face after having pointed at him. Given the circumstances, we are of the view that the identification evidence by Nerbat through identification parade that he identified the 2nd appellant does not irresistibly point to him that he was the one who visited at the deceased's home on 11/5/2012 and requested to be taken to the ten-cell leader for a very simple reason that it is marred with irregularities which raise doubt. The other evidence that was relied upon was the cautioned statements of 2nd, 3rd and 5th appellants herein. It is a settled principle of law that confession evidence that is retracted or repudiated cannot be relied upon to ground a conviction unless it is corroborated by another independent evidence - See: Muhidin Mohamed Lila @ Emolo and Others v. Republic, Criminal Appeal No. 443 of 2015 (unreported). It is also important to emphasis that the evidence which itself requires to be corroborated cannot be used to corroborate the retracted or repudiated confession. This position was reiterated in the case of Morris Agunda and 2 Others v. Republic [2003] T.L.R. 449, where it was stated as follows: "Evidence which itself required corroboration couid not corroborate the retracted or repudiated confession o f the co-appellant". In the instant case, the trial court, as alluded to earlier on relied on circumstantial evidence and the confessional evidence (Exhs. P2, P5 and P3) of the 2nd, 3rd and 5th appellants. In relying on Exhs. P2, P5 and P3 the trial Judge at page 643 of the record of appeal reasoned as follows: "... The same disclose information that no any other person than the accused persons themselves can know. The same show that they were given by persons who had the knowledge o f how the deceased met her death. The same cannot be said to have been concocted or manufactured by the investigating police officers because had they so framed by the police the two accused persons Emmanuel Ngailo and Izack Ngailo would not have been exonerated themselves from the act o f killing and just 21 mentioned the 1st accused as the actor o f the kiliing while themseives just showed him the deceased house. In the statements aii have stated how they were approached by the fifth accused for purpose o f kiiling the deceased. She told 2nd accused to look for a person or persons "to do the work" The 2nd accused in turn told J d accused who agreed and the two went to Usalule village on 12/5/2012. Their attempt to kill the deceased was not successfulit is where they involved the 1st accused with whom they went to Usalule village on 13/5/2012 when; after being shown the deceased house the same day at night 1st accused who was in the company o f 2nd accused killed the deceased, while the J d accused remained at the 5th accused. After fulfilling their mission, the three left and 5th accused was arranging transport for them. I have no doubt that 2n o 3rd and $ h accused persons also participated in the planning, and after they have failed to implement their plan for the first day, it is when they involved the 1st accused. "But in their confession, they also implicated the 1st accused that they involved him and is the very person who attacked the deceased using a machete". 22 From the excerpt above, we note that the trial judge relied on the confession statements because he believed that the information contained in those statements could not have come from persons other than those who knew the event and must have known how the deceased met her death. However, as indicated earlier on, the complaint by Mr. Ngafumika is that, resemblance in the statements was possible because all the cautioned statements were recorded by PW5 who also went to the scene of crime, investigated the case and convened a relatives meeting in order to spot the suspects. Our perusal of the record particularly, the testimony of PW5 has revealed that the appellants' sentiments make sense. Indeed, PW5 was among the persons in the team lead by the OC - CID Ass/Insp. Moshi which went to Usalule village immediately following the information that there was a murder incident in that village. On their arrival, PW5 started to question and investigate the matter. He drew the sketch map of the scene of crime (Exh. P2). On 18/5/2012, he convened a meeting of the deceased's relatives where upon one of the relatives advised the police to question Anita Mbwilo (4th appellant) and Upendo Mligo (the 5th appellant) about their findings from the witchdoctor which led to the arrest of 4th appellant who later disclosed on how she hired the killer. PW5 testified on how he took the role of arresting the other appellants. 23 He also recorded the cautioned statements of Upendo Mligo (5th appellant) (Exh.P3); Emmanuel Ngailo (2nd appellant) (Exh. P4) and James Msumule (1st appellant) after having arrested him at Ramadhani area on 22/8/2012 though it was not admitted in evidence. Lastly, he recorded the cautioned statement of Izack Ngailo, (3rd appellant) Exh.PS. There is no doubt that PW5 was involved heavily in various stages of the investigation of this case which, admittedly, could enable him to get a lot of information in relation to the case. According to Mr. Ngafumika, this was not a best practice as the witness had advantage of knowing the details of the case in which the possibility of concocting the story for other appellants could not be overruled. We are aware that previously, the position of the law was that it was inadmissible and improper for the police officer who is conducting the investigation to charge and record the cautioned statement of the suspect - See: Shani Kapinga v. Republic, Criminal Appeal No. 337 of 2007 (unreported). However, this position was changed in 2012 through an amendment of section 58 of the Criminal Procedure Act, [Cap. 20 R.E. 2022] vide Written Laws (Miscellaneous Amendment) Act No. 3 of 2012 whereby sub section (4) was added allowing the police officer who investigates the case to record the cautioned statement. The said subsection states as follows: "(4) Subject to the provisions o f paragraph (c) o f section 53, a police officer investigating an offence for the purposes o f ascertaining whether the person under restraint has committed an offence may record a statement o f that person and shall: (a) show the statement to the person and ask him to read it; or (b) read the statement to him or cause the statement to be read to him and ask him whether he would like to add or correct anything from the statement" As it is, reading through the said provision, it seems to us that it is permissive. It gives a room for an investigator to record the suspects' cautioned statement. In the case of Kadiria Said Kimaro v. Republic, Criminal Appeal No. 301 of 2017 (unreported), we held that a police officer who investigates a case for purpose of ascertaining whether a person under restraint has committed the offence is also competent to record the caution statement. However, we think, it would mostly depend on the prevailing circumstances. Looking at the circumstances of this case, we think, the cited case of Kadiria Said Kimaro (supra) is distinguishable because in that case 25 it involved only one suspect unlike in this case where five suspects were involved and each was arrested at a particular time. Besides that, despite the fact that PW5 investigated the case and arrested the appellants, he also convened a meeting of the deceased's relatives which gave him an advantage of being availed with a lot of information which could be misused. In this regard, we are of the view that, given the circumstances that he was involved in different activities relating to this case, it was improper for PW5 to do everything himself including recording their cautioned statements which resembled to the extent that the trial court took the advantage and relied on them. The other crucial grievance in relation to the cautioned statement is that there was no mention of the name of the deceased person. It was only in Exh. P3 where the 5th appellant mentioned certain "Semtokoma" or "Mama Mkwe Mkubwa" referring her as the deceased. We ask ourselves if the said "Semtokoma" or "Mama Mkwe Mkubwa" was the same person as "Alice Mtokoma", the deceased in this matter. We have critically perused the statement of the said appellant and noted that even what she narrated was what they were told by Agneta Mhewa and Fela's husband who told them about seeing "Semtokoma" and "Madola" in the witch doctor's mirror being the ones responsible for killing her husband. In the first place, this is not the type 26 of evidence to be relied on since the author gave hearsay evidence about who was involved. Secondly, we agree with Mr.Ngafumika that it cannot be said with certainly that "Semtokoma" or "Mama Mkwe Mkubwa" who was mentioned by the 5th appellant in Exh. P3 was the same Alice Mtokoma much as in Bena tribe they are used to mention a female with a prefix - "Se" or "Sa". We say so because, there is nowhere in the statement offered clarification that they meant Alice Mtokoma. In this matter it cannot be said as to who "Semtokoma" or Mama mkwe mkubwa" was referred to. In the circumstances, we do not think the 5th appellant proved with certainty that "Semtokoma" or "Mama Mkwe mkubwa" was the same as Alice Mtokoma so as to impute that the appellants were the ones who killed Alice Semtokoma. There was another grievance that it was wrong to hold that the cautioned statements were corroborated by the evidence of PW4 and the Identification Parade Register (Exh. P6) because it was marred with irregularities. According to Mr. Ngafumika, PW4's evidence that she identified the 2nd appellant as a person who visited at their home on 12/5/2012 could not stand as her statement was not read over during committal proceedings. As regards the Exh. P7, he argued that it was irregular since Nerbat who allegedly identified the 2nd appellant gave contradictory 27 evidence on how many persons were identified with the evidence of PW6 who conducted the identification parade. On top of that, the persons who were lined up and identified were not asked if they were satisfied with the identification parade or signed in the register. Luckily enough, the learned State Attorney readily conceded to both anomalies raised by the learned counsel for the appellants, and rightly so in our considered view, and, she urged the Court to expunge such evidence from the record. In view of what we have discussed earlier on in this judgment we are in agreement with both counsel that in the circumstances the evidence of PW4 and Exh. P7 and Exh. P6 cannot be taken to corroborate the cautioned statement. The other complaint was based on the trial Judge's comment that in their defence, the appellants gave nothing substantial and indeed, we note that, that is what the trial Judge remarked at page 646 of the record of appeal. The trial Judge said "...in their defence, the accused offered nothing substantiai apart from their mere deniai." Much as Mr. Ngafumika is at arms with that statement, we think that, it was just an orbiter which was not the basis of the decision. We say so because, the trial judge not only captured the defence evidence of all appellants but also considered it thoroughly before arriving at his conclusion. Matters 28 that were captured in their defence included; failure to mention the deceased in the cautioned statements; threats against the 3rd appellant, their denial to have made statements at the police station; that none of the witnesses saw them killing; that the 3rd, 4th and 5th appellants did not repudiate or retract their cautioned statements at their tendering but merely objected their admission due to non-compliance with procedures for recording them. These matters were considered by the trial Judge extensively as shown at pages 647 - 657 of the record of appeal. On the issue of lack of eye witnesses, it was found that there was sufficient circumstantial evidence and that it was not necessary for the accused to be found with deceased property. On failure to mention the deceased in the cautioned statement, it was found that she was referred to as "Semtokoma" or "Mama Mkwe Mkubwa" by the 4th and 5th appellants; that the 2nd appellant was identified by PW4 when he went to the deceased's house on 11/5/2012 night requesting to be taken to the ten-cell leader, and that Nerbat, who also saw him on that date identified him in the identification parade as per Exh. P7 tendered under section 34A (2) of Evidence Act, Cap 6, R.E 2022 (the Evidence Act). That the 2nd appellant was identified by Nerbat Mhewa (Exh P6) and this was confirmed by PW6, a police officer who conducted identification. On the issue that, although appellants objected to have made statements at the police or that there was threat applied, the learned Judge considered it and found that the same were not on voluntariness but on procedural matters relating to the recording of cautioned statements. We would have agreed with the appellant's complaint had the trial Judge determined the cased based on that remark without examining and evaluating their evidence. However, that notwithstanding, we find that the appellants defence was substantial in view of what we have endeavored to discuss earlier on in the sense that the appellant's complaint in this regard is merited. In the totality of the a fore going, we are satisfied that if the evidence of PW4 and the identification parade is expunged, there remains no other evidence that could mount a conviction against the appellants. The circumstantial evidence from the cautioned statement is also not sufficient to sustain the conviction for failure to mention the person who was killed. In other words, the evidence on record does not irresistibly point to the guilty of all the appellants. We, therefore, agree with the learned counsel for the appellants that the prosecution failed to prove beyond reasonable doubt that the appellants are the ones who killed the deceased. 30 In the event, we allow the appeal, quash the conviction, set aside the sentences meted out against the appellants. We further order that, the appellants be released forthwith from custody unless held for other lawful reasons. DATED at DAR ES SALAAM this 7th day of March, 2024. R. K. MKUYE JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL Z. A. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 13th day of March, 2024 via video conference from Dar es Salaam to Iringa in the presence of Mr. Jally Mongo, learned counsel for the Appellants and Mr. Sauli Makori, learned Counsel for the Respondent, is hereby certified as a true copy of the original. 31