CRIMINAL APPEAL NO 49 OF 2022 KASHINJE SITA 5 OTHERS VERSUS tHE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A., FIKIRINI, 3.A. And KENTE, 3J U CRIMINAL APPEAL NO. 49 OF 2022 KASHINJE SITA................................................................... 1st APPELLANT MALABI LAZIMA................................................................. 2NDAPPELLANT MWAKA MALUNDE.............................................................. 3rd APPELLANT TANZANIA MADUKA......................... .................................4™ APPELLANT MASELE TANZANIA............................................................. 5™ APPELLANT MAGANGA NGANYILA.................. ......... .......................... 6™ APPELLANT VERSUS THE REPUBLIC......... ........................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Tabora) (Bahati. 3.^ dated the 16th day of December, 2021 in Criminal Session No. 80 of 2019 JUDGMENT OF THE COURT 9th August & 6thSeptember, 2024 LILA, JA: The appellants' arraignment before the High Court of Tanzania (Tabora Registry) of the offence of murder contrary to section 196 of the Penal Code (Cap 16 R.E. 2002) was founded on an allegation that they killed Magreth Mathias (the deceased) on 8/5/2016 during the night time at Mtakuja Village Igagala No. 5 within Kaliua District in Tabora Region. A trial which ensued following the appellants' denial of the accusation i culminated in a conviction and a sentence of death to each appellant. They are now before the Court challenging that decision. It was uncontroverted that the body of the deceased was found lying outside her house on 8/5/2016 and the cause of death was certified by William Benedict Kaijage (PW2), a doctor at Ulyankulu Health Centre, to have been due to bleeding caused by cut wounds on the head and neck. He posted the finding on the Post-mortem Report (exhibit P2). It was not immediately revealed who were responsible for the killing. A picture of who would have been involved with the murder leading to the appellants' arrest, came from WP 10952 Rahel Elikana (PW1), E 5349 DC James (PW4) and WP 10068 DC Angela (PW8). PW1 and PW8 gave evidence upon the trial court granting the prayers by the learned State Attorney under section 34B (2) (a) of the Evidence Act (the EA) to permit them to testify so as to, respectively, tender witness statements by Anna Bundala (exhibit PI) whose whereabouts was said to be unknown and the statement of Dotto Mambosasa (exhibit P8) who was said to have been staying in the National Reserve Area. The statement was admitted as exhibit PI. Explaining on what Anna Bundala and Dotto Mambosasa told them, PW1 and PW8 said, two people visited the deceased's house on 7/5/2016 asking for her but she was not present and those people had food and left. That, no descriptions of the visitors were given. That, later at 00:01 Hrs, Anna Bundaia got awake due to noise that came from children and got outside only to find them crying beside the deceased's body. PW4's story was quite different. According to him, in addition to the information narrated by PW1, they investigated why the deceased was killed and learnt that two families were in conflict and proceeded to arrest one Rashid Sawaka (then 6th accused) and Masele Maduka. We take note that, Rashid Sawaka was acquitted for no case to answer. Another evidence came from Gift Simon Njiro (PW3), a Village Executive Officer (\/EO) at Utende Katavi who said that he was called by a policeman one F 6779 DC Julius (PW6) to witness Malabi Lazima (the 2nd appellant) recording his cautioned statement Jerry Charles (PW5), a magistrate working at Isevya Primary Court in Kaliua District, on 27/5/2016, recorded extra-judicial statements of Kashinje Shija (1st appellant) and Malabi Lazima (2nd appellant), on 26/5/2016, recorded extra judicial statements of Tanzania Maduka (4th appellant) and Rashid Sawaka (then 6th accused) and, on 18/5/2016, he recorded the extra-judicial statement of Masele Tanzania (5th appellant). Such statements could not form part of the evidence as the attempt by the learned State Attorney to have them admitted, was successfully objected by the defence counsel for non-compliance with the Chief Justice's Guidelines when recording them. 3 PW6 recorded the cautioned statements of 2nd, 5th and 6th appellants and were admitted, despite being objected, as exhibits P3, P4 and P5, respectively. G 239 DC Rocki (PW7) recorded the cautioned statements of Mwaka Malunde (3rd appellant) and Kashinje Sita (1st appellant) which survived the defence counsel's objections in respect of their admissibility and were admitted as exhibits P6 and P7, respectively. It is therefore plain that PW4' cautioned statement was not tendered in court, if he made any. Being a subject of this appeal in grounds one (1) and two (2) of the supplementary memorandum of appeal, we shall not delve into explaining the contents of exhibits PI, P2, P3, P4, P5, P6, P7 and P8. Neither of the appellants was ready, during defence evidence, to admit being responsible for the death of the deceased. Each appellant distanced himself from being at the crime scene and each claimed to have been arrested away from it. The 1st appellant (DW 4) stated that he was arrested on 21/6/2016 at night time at Imalanduki Inyonga within Mpanda District where he stayed with his wife and children and that he found the family of Maduka in the police cell. That he was tortured by Rocki (PW7) and PW6 so as to confess. He denied knowing Dotto Mambosasa. Likewise, the 2nd appellant (DW5) had it that on the material date he was at his home and that he was arrested by PW6 and PW7 on 21/5/2016 at Inyonga, Mlele where he stayed with his parents after the death of his daughter and was assaulted and forced to sign a statement. That, he met the 1st appellant in court. On his part, the 3rd appellant (DW1) claimed that he was, together with 4th, 5th and one Rashid, arrested on 13/5/2016 at his home and were taken to Mpanda Police Station where he was tortured and signed a statement written by police. He said, he knew the deceased whom his daughter one Shija Tanzania was married by paying 13 heads of cattle as dowry who later died in hospital of chest pain and anaemia. He denied killing the deceased who was his in-law and who died at Urambo while he stayed at Mpanda. He denied selling any cow. The 4th appellant (DW2), similarly dismissed the accusation by the prosecution against him as being not true arguing that, he was arrested on 13/5/2016 by PW6 and other policemen while with his family and was not told the reason for the arrest. That he was afterwards taken to Mpanda Police Station. He stated that of the seven children he had, three died including Shija Tanzania who fell sick and was taken to Mpanda Hospital. That Shija Tanzania was married to Maganga Nganyila (the 6th appellant or DW6) having paid thirteen (13) heads of cattle. He said, together with the 6th appellant, did not participate in the deceased burial ceremony because they were suspected. He denied knowing the 1st and 2nd appellants and also planning or sending money to the killers. Like other appellants, the 5th appellant (DW3) disassociated himself in causing the deceased's death arguing that he was arrested by PW6 on 13/5/2016 while with her parents and was sent to Mpanda Police Station and tortured so as to confess killing the deceased. He said, the 6th appellant was his in-law and that he knew that the deceased was killed. Equally, the 6th appellant denied involvement in killing the deceased. He stated that he was arrested on 6/7/2017 at Kahama where he stayed and was then taken to Tabora. He denied having dispute with the deceased. That, Dotto was among the five wives of his father and that he married Shija Tanzania by paying thirteen (13) heads of cattle as dowry who later fell sick, took her to Mpanda Hospital but she later died. That, he later learnt of the deceased's death with whom he had no quarrel while at Shinyanga. At the closure of the case by both sides, summing up notes were read to the assessors who were of a unanimous opinion that all the appellants were guilty. In her assessment and evaluation of the entire evidence, the learned trial judge was satisfied that the prosecution case rested on cautioned statements, visual identification, common intention, corroboration and credibility of the witnesses. She then appraised herself of the principles governing identification citing the factors set forth in the case of Waziri Amani vs R [1980] TLR 250 and was convinced that the contents of the statement by Dotto Mambosasa (exhibit P8) as was explained in court by PW8 met all the conditions outlined in Waziri Amani vs R case (supra) in identifying the 1st and 2nd appellants. She also found PW1 and PW8 coherent and consistent in their respective testimonies hence credible, citing the case of Shaban Daudi vs Republic, Criminal Appeal No. 28 of 2002 (unreported) as providing the yardstick for measuring a witness's credibility she applied. She then considered the cautioned statements of the appellants and the other evidence and concluded that they have probative value as they explained in details how the appellants and their colleagues premeditated to kill the deceased and the motive behind such plan. And, after rehearsing parts of the cautioned statements, she held them to have been corroborated by the testimonies of PW1 and PW8 on identification, leading to a conclusion that they implicated the appellants and established common intention citing the cases of Aziz abdalah v R [1991] TLR 71 and Godfrey James Ihuya v R [1980] TLR 197. As for the 3rd, 4th, 5th and 6th appellants (then accused persons), she was satisfied that there was no direct evidence linking them with the commission of the offence. However, she said, it was PW3's testimony that the 2nd appellant confessed to have been, together with the 1st appellant, hired by 4th appellant to kill the deceased and were, initially paid TZS 120,000.00 and after the killing they were paid the balance. Applying the provisions of section 23 of the Penal Code which holds as responsible, each person who forms an intention to effect an unlawful purpose and that it matters nothing whether one is at the scene of crime or not, citing the case of Daimon Malekela @ Maunganga vs Republic, Criminal Appeal No. 205 of 2005 (unreported), she was satisfied that all the appellants were responsible with the killing of the deceased with malice aforethought as opined by the assessors and convicted them all followed by a sentencing each of them to suffer death by hanging. The appellants are before us protesting their innocence, initially, through separate memoranda of appeals. Subsequently, Mr. Kelvin Kayaga, learned advocate, representing them all, preferred only four (4) grounds in a supplementary memorandum of appeal which, he said, it was agreed by all the appellants to be the one to be argued. These are: "1. That, the High Court erred in iaw and facts when it admitted and retied upon exhibits P3, P4, P5, P6 and P7 in its judgment despite the fact that the same were neither read nor listed during committal proceedings in 8 contravention o f s. 246(2) and 289(1) o f the Criminal Procedure act [CAP 20 (R. E. 2002)]. 2. That, the learned judge of the High Court erred in law and facts by admitting exhibits PI and P8 in violation o f s. 34B o f the Evidence Act and wrongly relied in decision. 3. That, the High Court judge erred in law for failure to hold that the appellants' identification was weak and not supported with a proper record or evidence o f identification parade. 4. That, the High Court erred in law and facts in convicting the appellants while the prosecution case was not proved beyond reasonable doubt." For hearing of the appeal, before us was Mr. Kelvin Kayaga, learned advocate, as revealed above, appearing for all the appellants who were also present in Court. For the respondent Republic, Ms. Grace Lwila, learned State Attorney, appeared. She supported the appeal. It was, before us, a concurrent view of the learned counsel for the parties that the prosecution relied heavily on the cautioned statements of the appellants to establish the appellants' guilt. But, they also agreed that 9 the cautioned statements of the appellants which are exhibits P3, P4, P5, P6 and P7 were not listed to be the documents to be produced by the prosecution during the appellants' trial in accordance with section 246(2) of the CPA hence disentitled the prosecution to tender them in court as evidence in terms of section 289(1) of the CPA unless a reasonable written notice is issued to the accused beforehand. In concretising the fact that exhibits P3 to P7 were improperly admitted and acted on by the trial judge, Ms. Lwila cited to us the Court's decision in the unreported case of Remina Omary Abdul vs Republic, Criminal Appeal No. 189 of 2020 in which the Court dealt with an identical situation. Due to that omission, they urged those exhibits be expunged from the record. We have examined the record of appeal and we have no scintilla of doubt that the learned counsel for the parties are correct. Section 246(2) of the CPA, in plain words, requires the prosecution's potential evidence during trial, be brought to the knowledge of the accused person by being read out and listed during committal proceedings. Section 249(1)(2)(3) guarantees an accused person's right to be served with committal proceedings which should contain a copy of the charge or charges, copies of the statements of the intended witnesses and documents produced to the committing (inquiry) court during committal proceedings and the copy of record of proceedings of the inquiry court. In short, the two provisions 10 imperatively obligate the inquiry court to avail the accused with all the would be evidence by the prosecution during trial. They are intended to enhance fair trial by avoiding taking the accused by surprise in cases triable by the High Court which are, in most cases, serious and carry capital penalties. To ensure that is done before trial commences, as rightly argued by both learned counsel, it is a condition precedent that a reasonable written notice must be issued on the accused or his advocate in terms of section 289(1) of the CPA, to have evidence not disclosed during committal proceedings, produced during trial. In the appeal under our consideration, the contents of exhibits P3, P4, P5, P6 and P7 were not read out during committal proceedings and are not in the list reflected at page 50 of the record of appeal as being the intended prosecution evidence. They could, therefore not be produced or tendered during trial consistent with the provisions of section 289(1) which provide: - "No witness whose statement or substance o f evidence was not read at committal proceedings shati 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." The Court had an occasion to consider the import and effect of this provision in our recent decision in Jumamnne Lubela @ Saanane vs Republic, Criminal Appeal No. 07 of 2022 (unreported), wherein we reiterated the stance we took in the case of The Director of Public Prosecutions vs Sharif Mohamed @ Athumani and Five Others, Criminal Appeal No. 74 of 2016 (unreported) that in the event of an omission to comply with sections 246(2) and 289(1) of the CPA, the new evidence introduced during trial must be expunged. In the same vein, we find no other option but expunge exhibits P3, P4, P5, P6 and P7 from the record of appeal and hold that the learned trial judge strayed into error not only to allow them feature and be tendered in court as evidence, but also relying on them in grounding the appellants' convictions. We accordingly allow ground one of appeal. We are remained, as far as documentary exhibits are concerned, with exhibits PI and P8 which are central in the complaint in ground two (2) of appeal. They are, respectively, witness statements by Anna Bundala tendered by PW1 and Dotto Mambosasa tendered by PW8. Mr. Kelvin Kayaga and Ms. Lwila were in agreement that they were received in evidence in contravention of the conditions set out in the provisions of section 34B(2)(a) to (e) of the Evidence Act (the EA). It was Mr. Kelvin Kayaga's argument that a mere statement that Anna Bundala and Dotto Mambosasa whereabouts were unknown because they were living in the National Park area, in the absence of evidence showing efforts taken to secure their appearance in court to testify, was insufficient to allow their statements be received in court as evidence in lieu of their direct oral testimonies receivable under section 34B (1) of the EA. Another complaint by Mr. Kelvin Kayaga was that, the two exhibits were tendered on the very dates the trial judge granted leave to the learned State Attorney to allow PW1 and PW8 to testify so as to tender the two witness statements. He argued that, by doing so, the requirements of section 34B(2)(d) and (e) of the EA was contravened which set, as a mandatory requirement, that an accused should be served with a copy of the witness statement at least ten days before the case comes for hearing so as to pave way for him (accused) to lodge an objection, if any, to the production of such statement. He cited to us our decision in the case of Adinardi Iddy Salim and Another vs Republic, (Criminal Appeal No. 289 of 2018), TZCA [2022] (11 February 2022) to support his contention that all the conditions set forth under section 34B(2)(a) to (e) of the EA must be complied with before a witness statement is received in evidence otherwise such evidence, including exhibits, should be expunged from the record of appeal which arguments and prayer found support from Ms. Lwila. On our part, we find no qualms to agree with Mr. Kelvin Kayaga and Ms. Lwila's position. Indeed, section 34B(1) of the EA permits a statement by a witness who cannot appear in court to testify, be received by a court in lieu of his direct oral evidence but, its admissibility is subject to full compliance with all the conditions outlined under section 34B(2)(a) to (e) of the EA [see Willy Jengela vs Republic, Criminal Appeal No. 17 of 2015 and Mhina Hamisi vs Republic, Criminal Appeal No. 85 of 2005, both cited in Ardinard Iddy Salim vs Republic (supra)]. In the present case, the record of appeal lends support to the learned counsel's arguments. Pages 68 to 70 of the record of appeal, for exhibit PI, quite clearly show that exhibits PI was tendered by the police officer who recorded exhibit PI because Anna Bundala's whereabouts was said to be unknown whereas, exhibit P8 was tendered by PW8 because it was said that Dotto Mambosasa was staying in the forest reserve area. No details were availed to the court as to the reasonable efforts made to trace them but failed. Section 34B (2)(a) of the EA requires sufficient efforts to secure a witness be made in these words: - "(2) a written or electronic statement may only be admissible under this section- (a) Where its maker is not called as a witness, if he is dead or unfit by reason o f bodily or mental condition to attend as a witness, or if he is outside Tanzania and is not reasonably practicable to call him as a 14 witness, if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation o f any law he cannot attend." [Emphasis added] All that is on record are mere assertions that the two witnesses could not be found which, with due respect, could not be the basis of leave being granted to tender exhibits PI and P2 in evidence. Admissibility of Exhibits PI and P8 in the record of appeal as evidence still faced another procedural flaw. As argued by Mr. Kelvin Kayaga, section 34B (2) (d) and (e) of EA requires the prosecution to issue the accused with a copy of the witness statement and be accorded not less than ten (10) days of the date of issuance to object its admissibility. Plainly, the record is silent if that was done. We take it that the accused was not accorded such right. The two explained infractions alone would be sufficient to allow the complaint in ground two (2) of appeal. But, there is yet another serious flaw that went unnoticed by Mr. Kelvin Kayaga. Neither exhibits PI and P8 nor PW8 were listed and, respectively, the substance of their contents and evidence by PW8 were read out to the appellants during committal proceedings in line with the requirements of section 246(2) of the CPA. 15 A reasonable written notice was not issued to the accused under section 289(1) of the CPA, either. As explained above, such omission legally disentitled the prosecution the right to tender exhibits PI and P8 in evidence as well produce PW8 as a witness during trial, hence subjected exhibits PI and P8 as well as the evidence by PW8 to being expunged as we hereby do. In conclusion and for the foregoing reasons, we hold that it was an error for the trial judge to admit and rely on exhibits PI, P3, P4, P5, P6, P7 and P8 as well as the evidence by PW8, as complained, to ground the appellants' convictions. It will be recalled that the evidence by Anna Bundala as contained in her statement (exhibit PI) and that of Dotto Mambosasa as contained in her statement (exhibit P8), formed the basis of the trial court's finding that the 1st and 2nd appellants were duly identified at the crime scene. This is evident at page 234 of the record of appeal where the learned trial judge stated that: - "Since these statements were corroborated by PW1 and PW8, in this case, are key witnesses. I am aware that, although there is no rule o f law or practice making corroboration o f a retracted confession essentialin this case at hand, corroboration o f a retracted confession is desirable by independent evidence as no other evidence points to the accused as having been identified as people who committed the crime herein/' Obviously, by expunging exhibits PI and P8 and the evidence by PW8, the evidence on identification crumbles. It follows, also, that the finding by the trial court that PW1 and PW8 were consistent and coherent hence reliable, miss legs to stand on, as their testimonies were founded on what was told by Anna Bundala and Dotto Mambosasa in exhibits PI and P8. Apart from disposing of ground two (2) of appeal, the finding also disposes of grounds three (3) and four (4) of appeal which we allow. In the end and for completeness, we are left with two issues to address. First, is an allegation by PW4 and PW6 that the killing of the deceased was planned by the family of Tanzania Maduka. In the absence of cogent evidence as is the case herein, such allegation remains unproved and cannot support a valid conviction. It is, in the least, a suspicion for which it is settled law that, however grave it may be, cannot be substitute for proof in a court of justice (see Ally Fundi vs Republic (1983) TLR 210 cited in Selemani Rashid @ Daha vs Republic, Criminal Appeal No. 190 of 2010 (unreported). Second, is the evidence by PW3 that he witnessed the 2nd appellant record his confession before PW6 in which he confessed. We agree with the learned counsel that such evidence is very weak for a reason that it was not clear whether his presence during recording of the confession followed the 2nd appellant's request to PW6 or not. We are alive that conventional wisdom has it that the very best of witnesses in any criminal trial is an accused, who confesses his guilt. But for such a confession to bind the accused, it must be proved beyond reasonable doubt by the prosecution that it was made freely and voluntarily. In short, it should have been free from the remotest taint of suspicion, and free from the blemishes of compulsion, inducements, promises or even self - hallucinations (See, Twaha AH & Five Others vs Republic, Criminal Appeal No. 78 of 2004 and Paulo Maduka & Four Others vs Republic, Criminal Appeal No. 110 of 2007 (both unreported). Further, trite practice is that only a person of the accused's choice may be present during recording of a cautioned statement of an accused. It cannot be ruled out that presence of PW3 without the 2nd appellant's wish, in the present case, must have had the effect of intimidating him. The statement cannot be said to have been freely taken and is liable to be discounted. We would like, before we wind up, to remind both courts below and prosecutors of the Court's firm observation in Twaha Ali and Five Others vs Republic (supra) that: - "Accuseds' procedural rights are there to be strictly observed not only for their benefit but also to ensure thatjustice is done in the case." In the final analysis, there is no evidence establishing the appellants' culpability to the required standard of proof beyond a speck of doubt. We allow their appeal, quash their respective convictions and set aside the sentences imposed to each of them. We also order that they all be set at liberty immediately if not held in prison for another lawful cause. DATED at DAR ES SALAAM this 5th day of September, 2024 S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 6th day of September, 2024 in the presence of the Appellants in person and Ms. Anneth Makunja, learned State Attorney for the Respondent/Republic, through video link at Tabora High Court is hereby certified as a true copy of the original. 19