DENIS GERAZ VS THE REPUBLIC CRIMINAL APPEAL NO 10 OF 2023

IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA fCO RAM: MUGASHA. J.A.. MWAMPASHI. J.A.. And NGWEMBE, J J U CRIMINAL APPEAL NO. 10 OF 2023 DENIS GERAZ............................................................................ APPELLANT

VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Bukoba) (Ngigwgnji, J.) dated the 14th day of Decernber, 2022 in Criminal Sessions Case No. 34 of 2021

JUDGMENT OF THE COURT 10th& 13th March, 2025 MUGASHA. J.A.: The appellant was charged with the offence of murder contrary to section 196 of the Penal Code Cap 16 RE.

2002. It was alleged by prosecution that, on 1/7/2020 at Milanda village within Muleba District in Kagera Region, the appellant did murder one Magreth w/o Bahati, the deceased. After a full trial, he was convicted and sentenced to suffer death by hanging. In order to appreciate, the gist underlying the apprehension, arraignment and conviction of the appellant, it is crucial to state briefly the background as follows: From a total of nine witnesses, the prosecution case was to the effect that, on the fateful day both the deceased and the appellant were at the bar owned by one Warioba Kutangato, PW1. Whereas the appellant was drinking beer, the deceased was drinking soda and eating buns. PW1 who also happened to be at the bar, heard the deceased asking the appellant to escort her to her residence which was obliged by the appellant and the duo left together. While on the way, it was alleged that the appellant requested to have sexual intercourse with the deceased who declined which made the appellant to forcefully rape her. Since the sexual intercourse was against her will, she had scratched the appellant's face and told the appellant that, she would rely on the finger marks on his face to reveal that he had raped her. This made the appellant marred and it is alleged that he strangled the deceased to death. On the following day, the lifeless body of the deceased was found

lying along the roadside. According to the autopsy report conducted by the Assistant Medical Officer one Johanes Sweetbart, the PW3, he established that the deceased had bruises on the stomach, legs, vagina and around the neck and thus concluded that the cause of death was suffocation due to strangulation. After PW1 had disclosed to have seen the appellant and deceased leaving together from the bar, the appellant was suspected to have committed the heinous act and was arrested. According to the evidence of Genevieve Asimwe, PW5 and Assistant Inspector Exeprius Audax Bangahare, PW6, they both recalled that in both the cautioned and extra judicial statements the appellant confessed to have killed the deceased. In his defence, the appellant denied each and every detail of the prosecution account. He told the trial court that, on the fateful day, he went at the shop to buy some cooking items and later passed by the bar and was given a bottle of local liquor by PW1. He recalled that, those present were some other people including the deceased. It was the appellant's assertion that, after finishing his drink he went home leaving behind the PW1, the deceased and others at the bar. On the following day, heeding to an alarm raised, he rushed to the scene of crime and found the body of the deceased lying down covered with a masai sheet. Subsequently, he was interrogated and apprehended

together with Benedicto Stephano, Warioba Kitangato, Patness Slyvester and Albert George. Subsequently, he claimed to have been tortured and forced to sign documents. However, the appellant neither raised an objection nor cross- examined the prosecution witnesses on the incriminating oral and documentary account exhibited in the prosecution account. At the end of the trial, believing the prosecution account to be true, the trial court convicted the appellant and sentenced him to death by hanging having concluded that: one, he was the last person to be seen with the deceased alive; two, the circumstantial evidence linked him with the killing incident as corroborated by his confession to have killed the deceased in both the cautioned and extra judicial statements; and three, the appellant had failed to cross-examine the prosecution account on the incriminating evidence against him. Undaunted, the appellant has appealed to the Court. In the two memoranda of appeal the appellant has raised a total of fourteen grounds of complaint. However, the appellant abandoned eleven grounds thus remaining with three grounds of complaint as hereunder: 1. That, the trial court erred in law and fact on exhibits or documents that were not read or listed during the committal hence improperly admitted.

2. That, the trial court erred in law and fact by considering the cautioned statement that was taken contrary to the law.

3. That, the prosecution side failed to prove the offence beyond reasonable doubt. At the hearing, the appellant was represented by Mr. Derick Zepharine, learned counsel whereas the respondent Republic had the services of Ms. Ajuaye Bilishanga Zegeli, learned Principal State Attorney who co-appeared with Ms. Chema Maswi, learned Senior State Attorneys and Mr. Dickson Elias Makoro, learned State Attorney. Gathering from the grounds of appeal, basically the appellant's complaint is twofold that is, one, the trial was flawed with procedural irregularities on account of omissions at the committal stage; and two, the charge was not proved to the hilt against the appellant. In arguing the complaint on the irregular conduct of committal, Mr. Zephurine faulted the trial court to have relied on documentary account such as, the sketch map of the scene of crime and the confessional statements of the appellant which were not initially introduced at the committal stage. On this, he argued that the appellant was prejudiced because he was not aware of the nature of the evidence which the prosecution intended to parade against him at the trial which is in violation of section 246 (2) of the Criminal Procedure Act CAP 20 R.E 2019 ( the CPA). Thus, he implored on us to expunge the respective documentary account from the record. To bolster his propositions, he as well cited the case of MASHAKA JU

M A @ NTALULA VS REPUBLIC, Criminal Appeal No. 140 of 2022 (unreported). In the alternative he submitted that, the cautioned statement of the appellant was not recorded as per the dictates of the law because the questions which he was asked during the interview do not feature in the respective statement. With the said submission, the appellant's counsel urged us to expunge the sketch map of the scene of crime and both the cautioned and extra judicial statements of the appellant. In this regard, it was the appellant's counsel that the subsequent omission is yet another reason warranting the cautioned statement to be expunged from the record. Yet, it was further argued that, if the confessional statements are expunged the oral evidence of PW5 and PW6 who recorded the confessional statements cannot stand and as such, the evidence of PW1 who claimed to have seen the appellant with the deceased remains uncorroborated in the absence of any other tangible evidence on the record. With the said submission, the appellant's counsel implored on the Court to find that the charge was not proved at the required standard and the appeal be allowed. On the other hand, the appeal was contested by Ms. Bilishanga who urged the Court to sustain the conviction and dismiss the appeal arguing that, the charge was proved to the hilt against the appellant. Besides conceding that the sketch map of the

scene of crime was not listed at the committal stage, he argued that during committal the confessional statements were brought to the attention of the appellant as reflected at page 22 of the record of appeal. Moreover, she challenged the appellant's counsel submission arguing that the recording of the statement was in accordance with section 57 (2) (a) of the CPA which allows interviewing of the maker of the statement to be in a question and answer where it is practicable to do so which was not applicable in this case as the appellant gave a narration on the contents of his statement. As to the evidence linking the appellant with the charged offence, Ms. Bilishanga argued that the circumstantial evidence availed by PW1 irresistibly points to the guilt of the appellant. On this, he argued that the appellant was the last person to be seen with the deceased who was later found dead which substantiates that he did kill the deceased. She added that, the evidence of PW1 is corroborated by the unobjected cautioned and extra judicial statements of the appellant who confessed to have killed the deceased. She also submitted that the motive behind the killing is that the appellant was scared to be arraigned with the charge of rape because the deceased vowed to reveal about the rape incident and mention him as the culprit. She thus urged us to find that the charge was proved against

the appellant. When probed by the Court on the propriety of the oral account of PW5 and PW6 which contains the contents of the confessional statements before such documents were admitted into the evidence, she conceded that it was irregular and as such, implored on the Court to expunge the confessional statements of the appellant. However, she maintained that, the evidence of PW1 irresistibly points an accusing finger to the appellant on the killing incident In rejoinder, Mr. Zephurine reiterated what he submitted earlier on. Having carefully considered the rival arguments and the record before us, the issues for determination are whether the trial was flawed by the procedural irregularities and whether the charge was proved against the appellant beyond reasonable doubt. We begin with the complaint on irregularities touching the confessional statements of the appellant. It is on record that the confessional statements were made known to the appellant who was made aware of the substance of such evidence at the committal stage. This is in accordance with the dictates of section 246 (2) of the CPA. However, such confessional statements fell short of meeting the threshold of admission due to the following omission. The oral account adduced by PW5 and PW6 at pages 42 and 48 of the record of appeal constituted what was in the confessional statements before the statements were cleared

for admission. Since it is settled law that, a document must be cleared for admission before it is read out at the trial, doing otherwise as it transpired in this case, was tantamount to introducing the confessional statements of the appellant through the backdoor which cannot be condoned. In the premises and in order to remedy the omission, we expunge the confessional statements of the appellant together with the evidence of PW5 and PW6. Regarding the sufficiency or otherwise of the prosecution case in respect of the charge, it is pertinent to point out that, it is not in dispute that the deceased died an unnatural death and according to the autopsy report, the cause of death was suffocation due to strangulation. The question to be answered is whether it is the appellant who killed the deceased. While Mr. Zephurine argued that the evidence given by PW1 does not link the appellant with the killing incident, Ms. Bilishanga placed heavy reliance on such evidence contending that it sufficiently points to the guilt of the appellant. Given the two varying contentions on the criminal responsibility or otherwise of the appellant on the killing incident, in the absence of direct evidence the available evidence which is circumstantial is based on the testimony given by PW1. In this regard, in resolving this appeal, it is pertinent to initially restate the basic principles governing

reliability of the circumstantial evidence to convict which include: - i. That the circumstances from which an inference of guilty is sought to be drawn must be cogently and firmly established, and that those circumstances should be of a definite tendency unerringly pointing towards the guilty of the accused, and that 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 non-else (See ju s tin e ju liu s and o th e rs vs re p u b lic , Criminal Appeal No. 155 of 2005 (unreported)). ii. That the inculpatory facts are inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt; and that before drawing inference of guilt from circumstantial evidence, it is necessary to be sure that there are no existing circumstances which would weaken or destroy the inference [See, sim on msoke vs re p u b lic , (1958) EA 715A and jo h n m agula ndongo vs re p u b lic , Criminal Appeal No. 18 of 2004 (unreported)]. iii. That the accused person is alleged to have been the last person to be seen with the deceased in absence of a plausible explanation to explain away the circumstances leading to death, he or she will be presumed to be the killer. [See - m athayo m walim u and masai RENGWA

VS REPUBLIC (supra).] iv. That each link in the chain must be carefully tested and, if in the end, it does not lead to irresistible conclusion of the accused's guilt, the whole chain must be rejected, [see samson d a n ie l vs re p u b lic, (1934) E.A.C.A. 154]. v. That the evidence must irresistibly point to the guilt of the accused to the exclusion of any other person. [See shaban mpunzu @ e lis h a MPUNZU VS re p u b lic , Criminal Appeal No 12 of 2002(unreported)]. vi. That the facts from which an adverse inference to accused is sought must be proved beyond reasonable doubt and must be connected with the facts which inference is to be inferred. (See a lly b a k a ri vs REPUBLIC (1992) TLR, 10 and ANETH KAPAZYA VS REPUBLIC, Criminal Appeal No. 69 of 2012 (unreported). In the premises, we shall be guided accordingly by the stated principles to determine the appeal before us. As earlier stated, though it is not in dispute that the death of the deceased was unnatural what is contentious is whether it is the appellant who killed the deceased. It is settled law that the prosecution bears the burden to prove beyond reasonable doubt that, indeed it is the appellant who killed. As such, the follow up question is whether the prosecution did discharge the required burden which entails revisiting the remaining evidence of PW1 together with that of the appellant. According to PW1, he

recalled to have seen the appellant and the deceased together leaving the bar after the appellant heeded to the request by the deceased to be escorted home only to be found dead on the following morning. Thus, with this recollection, it is the appellant who was last seen with the deceased alive which was denied by the appellant who as well, recalled to have left the deceased at the bar with among others PW1. In the premises, the burning question to be addressed is who between the two gave a credible account on the circumstances surrounding the killing incident. Before that, we had to consider if the investigation had done enough so as to shed light as to who killed the deceased. On this, we had in mind the Doctor's oral account and autopsy report. The Doctor established that the deceased who died due to strangulation as she had bruises on the neck. In this regard, it is obvious that the culprit did grab the deceased by the neck leaving behind finger marks on her neck. However, there is no evidence that the investigation took trouble to take the finger prints of the appellant and those on the deceased neck for the purposes of conducting finger prints examination. Given the uniqueness of finger prints on each human being, the Court was faced with a scenario where the only evidence implicating the appellants was the fingerprints on the window screen of the car in which the

deceased was killed in the case of MUGANYIZI PETER MICHAEL AND 3 OTHERS VS THE REPUBLIC, Criminal Appeal No. 144 of 2020 (unreported). It was thus observed as hereunder: "First o f all, the nature and the uniqueness o f the relevant exhibit, that is, fingerprints, makes it very impossible to even think that it could be tampered with. It is common ground that no two persons including twins have ever been found to have the same fingerprints. It is also scientifically proven that fingerprints also vary between one's own fingers. See- Hillary Moses, Fundamentals of Fingerprint Analysis, CRP Press, 2015 and Robert John Buckley v. Regina, [1999] EWCA, 34 Crim 1191), cited by the Court in Mashaka Pastory Paulo Mahengi @ Uhuru and Five Others (supra). Putting its uniqueness aside, fingerprints are good source of evidence because for centuries forensic scientists have used fingerprints in criminal investigations as a means o f scientific identification. Fingerprint identification is one o f the most important criminal investigation tools due to two features: their persistence and their uniqueness. A person's fingerprints do not change over time. The friction ridges which create fingerprints are formed white inside the womb and grow proportionally as the baby grows. (See-https://www.crimemuseum. ora.)" Thus, in the matter under scrutiny the strength of the prosecution case hinged on the

finger prints examination as it would have enabled the prosecution to establish if it is the appellant who strangled the deceased to death without which it is highly probable that, the deceased was killed by some other person and not the deceased. That apart, we also found the evidence of PW1 highly suspect. We say so having gathered that he was initially arrested by the Police upon being suspected to have been involved in the killing incident. This is evident in the unassailed evidence of the appellant who at pages 61 and 63 of the record of appeal stated that PW1 was among those who were apprehended as suspects in the killing incident. Ultimately, others were released and the appellant was arraigned with the charge of murder. Looking at the evidence of the appellant, who claimed to have left the deceased at the bar with among others PW1, it is glaring that indeed PW1 had an interest to serve to wit saving his neck from the consequences of the fateful incident and thus opted to testify against the appellant. With such incredible evidence of PW1, it is highly unsafe to rely on it to pin down the appellant on the charged offence. As earlier stated, it is settled law that circumstantial evidence may be relied upon to convict if the inculpatory facts are inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than

that of guilt. Besides, before drawing inference of guilt from circumstantial evidence, it is necessary to be sure that there are no ex-existing circumstances which would weaken or destroy the inference. In the case at hand, the missing investigation report on the examination of the finger marks of the appellant and those found on the neck of the deceased, coupled with glaring interest on the part of PW1 whose evidence is suspect, did weaken and destroy the inference advanced by the prosecution on the appellant being responsible with the killing incident. Thus, the circumstantial evidence relied upon by the trial court does not irresistibly point to the guilt of the appellant and as such, the charge of murder was not proved to the hilt against the appellant. Therefore, on account of what we have demonstrated above, the appeal is merited and it is hereby allowed. Consequently, we quash and set aside the conviction and sentence and order the immediate release of the appellant unless if held for some other lawful cause. DATED at BUKOBA this 12th day of March, 2025. S. E. A. MUGASHA

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL P. J. NGWEMBE

JUSTICE OF APPEAL The Judgment delivered this 13th day of March, 2025 in presence of Mr. Derick Zepharine, learned counsel for the Appellant and Mr. Dickson Elias Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. C. M. MAGESA

DEPUTY REGISTRAR

COURT OF APPEAL