20140314 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MSOFFE J.A, KIMAROJ.A., And MJASIRLJ.A.^ CRIMINAL APPEAL NO. 238 OF 2014 1. INSPECTOR BARAKA HONGOLI 2. F. 8252 D/CPL SWAHIBU .APPELLANTS 3. G. 1659 D/C JERRY VERSUS THE REPUBLIC............................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Tabora) (Rumanvika dated 21st June, 2013 in Criminal Sessions Case No.35 of 2012 JUDGMENT OF THE COURT 11th & 17th March 2014 KIMAROJ.A.: In the High Court of Tanzania at Tabora (Rumanyika, J.)/ Insp. Baraka Hongoli, D. 9200 D/CPL Mawazo, F. 8252 D/CPL Swahibu, E. 9409 PC Charles, F.5276 D/C Shamsi, G. 1659 D/C Jerry and G. 2699 D/C Amran were jointly charged as 1st to 7th accused respectively on information for the offence of murder. They were alleged to have intentionally killed Festo Stephano on 6th August, 2011 at Rungwe Mpya village in Kasulu District, Kigoma Region. At the end of the trial all accused were found guilty and convicted of the lesser offence of manslaughter. They were each sentenced to an imprisonment term of five years. Aggrieved by the conviction and the sentence, the three appellants filed separate memoranda of appeal but all containing same grounds of complaint. The first is failure to prove common intention. The second is inconsistencies in the evidence of the prosecution witnesses. The third is shifting the burden of proof to the appellants. Lastly is the sentence that it was excessive bearing in mind the circumstances under which the offence was committed and they were not given an opportunity of saying anything in mitigation. Mr. Kamaliza Kamoga Kayaga, learned advocate who represented the appellants in this appeal added two other grounds. The first is a complaint that the appellants were not acquitted of the offence of murder before being found guilty of manslaughter. Second, the prosecution had failed to prove the charge against the appellants and so they were wrongly convicted. Before us the respondent Republic was represented by Mr. Iddi Mgeni, learned State Attorney. He supported the appeal. In support of the appeal, the learned advocate for the appellant submitted, and was supported by the learned State Attorney in all aspects that the prosecution did not lead sufficient evidence to support the conviction of the appellants for the offence of manslaughter. He said the evaluation of the evidence of all the prosecution witnesses, that is Masumbuko Christian (PW1), Andrea Sama(PW2), Nicholous Petro Kimondo(PW3), Amosi Budida(PW4), Said Shabani Rulimble(PW5), Maduna Kafuke(PW6) and Alex Alfred Msanze(PW7) did not prove common intention by the appellants to commit the offence. He said although the learned trial judge was satisfied that the case was not sufficiently investigated and the prosecution evidence fell short of proving that the appellants caused the death of the deceased, yet he convicted them of the offence of manslaughter. He pointed some few irregularities in the trial. One, failure by the learned judge to call upon the appellants to give mitigating factors before the sentences were imposed on them. Two, importing into the proceedings matters which were irrelevant as they did not feature in the evidence that was given during the trial. Three, adopting a wrong procedure in declaring PW3 a hostile witness. The learned advocate cited the cases of Godfrey James Ihuya and Others V R [1980] T.L.R. 198 to support his argument that the prosecution did not prove common intention on the appellants and Nathaniel Alphonce Mapunda and Benjamian Alphonce Mapunda V R [2006] T.L.R. 396 which shows the procedure for declaring a witness hostile. The learned State Attorney added that the defence of the appellants raised doubt in the prosecution case and the learned trial judge had to resolve the case in favour of the appellants. He also cited the cases of Alex Kapinga and Others V R Criminal Appeal No. 252 of 2005 (unreported) to show that the appellants had no common intention and that of Republic V Fabian Paul Criminal Appeal No. 14 of 1999(unreported) to show the correct procedure for declaring a witness hostile. Both learned counsel prayed that the appeal be allowed. The undisputed evidence led by prosecution witnesses PW1, PW2, PW6 and PW7 is that the deceased Festo Stephano and PW1 were arrested as suspects for an offence that was alleged to have been committed in the night of 5th August 2011 at a tobacco plantation at Rungwe Mji Mpya. The deceased and PW1 were arrested on 6th August 2011 in the afternoon by the village militiamen and were put in the lock up at the office of the Ward Executive Officer (PW3) while awaiting collection by police. The deceased and PW1 were blood brothers. PW3 was in the course of the trial declared a hostile witness. All appellants arrived from Kasulu Police Station to collect the deceased and PW1. From the evidence of PW1, PW2, PW6 and PW7 the appellants beat the deceased by using pieces of bamboo, gun butt and they also cut him by pieces of bottles until he lost consciousness. PW1 said he was also beaten. The deceased and PW1 were then put into the motor vehicle which had ferried the appellants to that place and they drove 5 away with them. PW1 said the deceased was later taken to hospital after his condition had worsened. According to PW5, a medical doctor at Kasulu District Hospital who attended the deceased when he received him on the same day in the evening, the deceased had dust on his head and legs and he was bleeding through the ears. He also had bruises on the face, the skull was fractured and he also had a (heamoperitoneum) spleen rupture. PW5 said the deceased died shortly after arrival at the hospital. The post-mortem examination report (exhibit PI) showed that the cause of death was cerebral cranial injury. According to PW5, the deceased could have sustained the injuries either by falling down from a certain height or he was hit by a heavy object, but in any case excessive force was used. All appellants denied to have committed the offence. They denied beating either the deceased or PW1. Their defence was that on that day they were sent by OC -CID to arrest suspects involved in the commission of an offence that was committed at Rungwe Mpya. After their arrest the deceased volunteered to show some of the weapons used in the commission of the offence. He took some of the appellants to a bush where he showed the gun that was used in the commission of the offence. On their way to the Police station the deceased attempted to escape and he fell down and sustained the injuries that led to his death. ACP Kihenya Nzulwa Kihenya (DW8), who was the OCD of Kasulu Police Station then, corroborated the defence of the appellants that he assigned them the duty of arresting the suspects. They also gave him a feedback that the deceased led them to a place where they recovered the gun that was used in the commission of the offence. As indicated earlier, the appellants were charged with four others who did not appeal for having caused the death of the deceased. The learned trial judge said the pivotal issue was mainly whether the deceased was beaten up by the accused persons so as to cause his death. However he did not link it with the issue of common intention. This is the first thing he should have addressed. Section 23 of the Penal code, [CAP 20 R.E.2002] provides that: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another , and in the prosecution o f such purpose an offence is committed o f such a nature that its comission was a probable consequences o f the prosecution o f such purpose, each o f them is deemed to have committed the offence." In this case we agree with the learned advocate for the appellants and the learned State Attorney that the evidence of the prosecution fell short of establishing that the death of the deceased resulted from a prior agreement of the appellants to beat the deceased to death. The prosecution witnesses said in their inconsistent evidence that the deceased was beaten up by using pieces of bamboo wood and buttocks of the guns the appellants had. While PW1, PW2, and PW7 said the appellants were assaulted by the appellants while naked, including inserting bamboo wood in their anuses, and were also cut with pieces of bottles, PW6 and PW4 8 said they were not naked. Even the examination conducted by PW5 did not indicate that the deceased had injuries in his anus. The appellants in their defence said they were sent to arrest the suspects. DW8 confirmed that the appellants were assigned the duty of going to arrest the deceased and PW1 who were suspects. The appellants said in the course of investigation, the deceased agreed to show the weapon which was used in the commission of the offence. A certificate of items seized from the deceased when he went to show them to the appellants was received in evidence as exhibit Dl. It was signed by the first appellant, the deceased and one Enos Kavano who witnessed the recovery of the weapon. Unfortunately, Enos Kavano could not testify because by then he was dead. His statement was admitted in court as exhibit D2 under section 34B of the Evidence Act [CAP 6 R.E.2002]. It corroborates the defence of the appellants on the weapon which the deceased showed the appellants. The appellants said it was after the deceased had shown the weapon, and when they were on their way to the police station, that he 9 fell from the motor vehicle as he attempted to escape while the motor vehicle was in motion. The injuries he sustained led to his death. The doctor who examined the body of the deceased (PW5) said in his evidence that the deceased died from head injury and he could have sustained the injuries because of falling on the stomach from a certain height. He said when the deceased was taken to hospital he had dust on the head and legs and had injuries on his head. In the case of Mohamed Said Matula V R [1995] T.L.R. 3 the Court held that it is the duty of the prosecution to prove not only the death of the deceased, but also to link it with the accused. Surely, the totality of the evidence that was tendered in this case negates the likelihood of the appellants forming a prior agreement to beat the deceased to death. The evidence of the prosecution witnesses does not support the findings of the learned judge. This case can be distinguished from the case of Godfrey James Ihuya (supra) referred to us by the learned advocate for the appellants. In that case the deceased was killed while undergoing interrogations in a previously planned operation and the appellants were found to have directly participated in the arrangement of the operation, supervised the interrogations and torturing of the deceased. See also the case of Alex Kapinga and Others supra on the common intention. For the reason we have shown the appellants were wrongly convicted of the offence of manslaughter because common intention to cause the death of the deceased was not proved. The likelihood of the deceased to have sustained injuries because of falling from the motor vehicle because of attempting to escape cannot be ruled out. We find the ground of appeal on the appellants not having common intention to kill the deceased having merit. The other ground of appeal is that the appellants were not given an opportunity to give factors which should have been considered by the trial court in mitigating the sentence that was imposed on the appellants. This ground has merit and it should not detain us. The record of appeal at page 110 shows that after the learned trial judge convicted the appellants of the offence of manslaughter, he went on to impose on the appellants the sentence of five years imprisonment without giving them an opportunity to give mitigating factors. That contravened section 320 of the Criminal Procedure Act, [CAP 20 R.E.2002]. The section reads: li "77?e court may, before passing the sentence, receive such evidence as it thinks fit in order to inform itself as to the sentence proper to be passed." It has always been the practice of the courts to give an accused person an opportunity to give mitigating factors before imposing a sentence on the accused person. The purpose is clearly indicated in section 320. It is to get information which will assist in passing a proper sentence. This must have skipped the mind of the learned judge. We remind him that it is important to bear this in mind in future. It is also obvious that the trial court ought to have acquitted the appellants of the offence of murder before it convicted them with manslaughter. We feel bound to comment on the irregularities noted in the proceedings. The first one is the procedure for declaring a witness hostile. Essentially declaring a witness hostile is invoked under section 163 of the 12 Law of Evidence Act [CAP 6 R.E.2002] when a witness gives evidence in court for a party, which differs from a previous statement made by him. The procedure was explained in the case of Republic V Fabian Paul supra. In that case the Court cited with approval the cases of Jumanane Athuman Mketo V R [1982]T.L.R. 232. In that case, Samatta, Ag. J. (as he then was) held: "Having made up his mind to treat the witness as "hostile" the party should, after showing a copy o f the witness's previous statement to the court, formally apply to the court for leave to do so. The Court should then hear the opposite party, if he has any objection to the application. Then after comparing and contrasting the evidence o f the witness and the contents o f his statement, and after considering the witness demeanour in the witness box, as well as the objections, if any, from the opposite party, the court should make its ruling on the application. If the court grants it, the applicant should then proceed to attempt to discredit the evidence of the witness by way o f cross-examination." (Emphasis added.) The purpose of treating a witness as hostile is to shake his credibility and indicate that there is no confidence in his evidence. This was also underscored in the case of Saidi Mwamwindi V R (1972) H.C. D No. 212 where Onyiuke J. held: "/ took the view that by treating the witness as hostile witness the prosecution was putting his credibility in issue and was impliedly indicating that it had not much confidence in him as a witness o f truth. The evidence o f such witness was negligible if not entirely worthless." The other irregularity we noted in the proceedings is importation of matters into the trial that were not supported by the evidence that was produced in court. In convicting the appellants the trial judge came out with a summary of seven reasons why the appellants were guilty. 14 The first was that the appellants had immediate control and full custody of the appellants. Second, because the deceased was a suspect of armed robbery, he was a dangerous person and that is why nine policemen were assigned to arrest him. In this regard the appellants ought to have handcuffed him to prevent him from attempting to escape from the moving motor vehicle. Three, since the appellants were driving on a rough road, which had pit holes it was not easy for the deceased to attempt jumping out of the motor vehicle unnoticed. Four, had the deceased fallen out of the motor vehicle accidentally, a traffic case should have been preferred against the negligent driver. Five, the learned judge said the defence of the appellants that the deceased fell out of the moving motor vehicle would have been believed if the speed of the motor vehicle was at 60-80 kilometres per hour. Sixth, PW1 did not accompany the appellants when the deceased went to show the weapon which was used in the commission of the robbery which PW1 and the deceased were suspected to have committed because the appellants intended to hide what they wanted to do to the deceased. Seventh, the learned trial judge believed that even if the motor vehicle had no pipe guards the appellants and the others who were with him were seven. He could not imagine how the deceased could have escaped from the appellants and jumped from the motor vehicle. With respect to the learned trial judge the summary he gave in associating the appellants with the commission of the offence was not borne out by the evidence that was given and the law. We have shown the evidence that was adduced in support of the prosecution evidence. It was not established by the evidence that the deceased was a dangerous person and that is why DW 8 sent the appellants and the others to arrest him. No one gave evidence on the speed at which they were driving the motor vehicle or details on the type of the road. The appellants said that they did not handcuff the deceased as he had shown cooperation by showing the weapon used in the commission of the alleged robbery. To a very large extent his summary of the reasons why he convicted the appellants was speculation and self contradiction because he also said in the judgment that the matter was not sufficiently investigated. It was not his responsibility to fill in the gap left by the prosecution by his own speculation. Trial courts have to be guided by the evidence before it in determining the issues which arise in the cases brought before it and not speculations. We hope these remarks will assist the learned trial judge and others to properly conduct the trials before the trial courts. All in all, with what we have already said in respect of the appellants' grounds of appeal, we find that the appeal has merit. We allow the appeal, quash the convictions and set aside the sentences. We order the release of the appellants from prison unless they are held there for lawful cause. At the beginning of the judgment we indicated that the appellants were charged together with D 9200 D/C Mawazo (2nd Accused), E.9409 PC Charles (4th Accused), F 5276 D/C Shamsi (5th Accused)and G.2699D/C Amrani (7th Accused). They did not appeal. For the sake of justice, although they have not appealed against their conviction and sentence, given the shortfalls we have indicated in the prosecution evidence, we use powers of revision under section 4(2) of the Appellate Jurisdiction Act, [CAP. 141 R.E.2002] and quash their convictions, set aside the sentences and order their immediate release from prison unless they are held there for lawful cause. DATED at TABORA this 14th day of March 2014. J. H. MSOFFE JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. "7^ P.> . W. BAM BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 18