t!

C,e.^{e.}.furu* {q_ r
,!
li
irn
/.-t-t.
-{ ,=*-*1,-:?
\/ ) --J
*Jg tr:dflH-}i n

L.]-r r.lr.ru qd_

{*.A ',D ,_ :
{..-(p","e;t 6-c
-t i
rl ,' I

rN rHE couftr
gj llIEAL oF TANZANTA

/ry
"
{{-u 'n ''.'{
AT MBEYA
(CORAM:

CRIMINAL APPEAL
NO. 232 OF 2OO4
1. AUSI MAMU
3,PlIIEL MWINYIHERI
3. RA'ABU TAVIRA

THE REPUBLIC
,.........r.,. RESPONDENT
(Appeal from th.-e
Judgment of the High
Court of Tanzanii at
d::.
si:
iunarrrl
ff' iManento, J.)
dated the lgth day of
Ju ly,2OO3
in

LUBUVA. J.A.;
re@
-i-he
appellants, Ausi s-/c
Mamu, Danie t ,/oMwinyiheri
and Rajab
slo Tavira, hereinafter
referred to as first,
rt"
q
respectivery, were
second and third .rr.,,.;;:
:.:ia{Y,: '
charged r,,rith and convicted
it
of the murder of the
deceasec,' Fatuma
Ali' At the trial they were
arso respectivery referred
to as the first' second
and third accused.
Dissatisfied with the
decision
of the High court (Manent j.
o, as he then was),
this appear has been
pi'eferred.

The facLs we,"e that ilre fir"st fipt)ellant was the brother of the
Cii?CE:frSe{J livrrrg aI lvicircieka \riilagr: in Tunr.Jirru
District. Thr: second
 t"
t II
)

t
I i:
!'
-4
,
and third appellants were neighbours
;

of the deceased and the second

appellant in the same viltage. The
deceased lived in one house
with
her grand daughter, Zainab d/o Salum
(pWl).

on 25.10.1998, in the morning, the deceased

reft her home in
the village for her shamba in Likoroge,
a nearby viilage.
pw1
remained at the house. As it
was getting late in the afternoon
and the
deceased had not returned, pw1
f,: got concerned. she, together
with
other villagers, started searchin g
for the deceased. At about 4 p.m.
the same day, the deceased was
found dead at her shamba at
Likologo covered with cashewnut
teaves. Word went around the
village about the death of Lhe deceased. The first appettant was
informed by,PW1, he came to
the house of one Atusi Ati, the sister
of
the deceased where funerar arrangements
were being made. The
{i-t following day i'e' 26.70.1998,
the deceased was buried at her
village,
u
Mchoteka' There was then no foul game
suspected in connection with
the death of the deceased arthough
Mwanabibi Asma (pw2) had
noticed while washing the Lrr:dy
of the deceased that the neck was
loose.

Sometime in March, Iggg, about

six months after the death
of
the deceased, Zainab d/o Salum (p\^/l-) went to the deceased,s
 +

shamba at Likorogo where she was

met ii,
by the second apperant,
Danier Mwinyiheri. whire
there at the shamba, the
second apperant
said to pw1 "dont you know
that we had kired your grand
mother on
the instruction of the I'r accused so that they courd
be given some
money". Upon her return home, pw1
informed her mother (pw2)
of
what the second appeilant
had said at the shamba.
Four days tater,
E:,
again the second appellant
threatened to kill pw1
aq, while at the
shamba' The mater was reported
to the Village Executive officer,
omari Hassan Mpinga (pw3)
who summoned a meeting oF the Virage
Executive committee to irivestigate the mafter. The
apperants were
arrested by the village Militia
and were interrogated by pw3
in the
presence of other village
security committee members.
In the course
of the interrogation, the first,
second and third apperants
6'
qo
made
statements Exh, pl, p2and p3
respectively.

At the triar in the High court

sitting at runduru, according
to the
Post Mortem report Exh.
P}, the cause of death
was unknown because
the grave was dug up about
9 months after burial. Only
skeletal
bones were found as the
body had already decomposecl.
No fractured
bone was noted" The
case against the apperants
was sorery based on
the statements Exh. pl, p2
and p3 0f the apperants
recorded cruring
 4
the meeting of the virage
security commiftee.
The rearned uiar judge
found that the statements
were true confessionar
statemen* which
had been corroborated'
As said beforg the apperants
were convicted
and duly sentenced to
death.

Mr' Mbogoro, rearned counser

for the appeilants fired four
grounds of appeal
the essence of which we
think is to the forowing
effect' First' the convictio'
of the appeilants which
)fl was sorery based
on the aileged confessionar
statements, Exh. p7, p2
.,
and p3 was
lmproper' He submitted
that the statements were
made under such
circumstances that they
could hardry be regarded
as confessions in
terms of the provisions
of section 27 G) of the
Evidence Act, 1967 .
Mr. Mbogoro further stated .that
the law under section 27
(l)of the
Evidence Act' 1967' recognlzes
a confession which is
{,.,.,, voluntarily made
\ ro a police officer and
not otherwise. In this . case, he said the
' statements were made
to a village Executive officer
in the presence of
the Village Security commiftee
members and other viilagers
at the
Village office' In that
situation, counsel went
on in his submission,
the
statements were not
confessions as such
and that the circumstances
were such that the apperants
did not make them freery.
It was
therefore wrong' Mr'
Mbogoro stressed, for the
learnecl trial judge to
 ri 5

treat the statements as confessions in which the provisions of sections

27 (l) and 33 of the Evidence Act, 1967 could be applied. He further

contended that had the trial judge properly directed himself on the

law, he would have found that the statements (p1, p2 and p3) were

not confessions known under the law. Without these statements, Mr.

Mbogoro concluded his subnrission, there was no other evidence upon

which the appellants could be convicted.

*il: :. ,
(': '"rj:

Asked by the court his views on the post Mortem Report (Exh.

P1), he readily concedeb tt.,at as the cause of death was not known,

the appellants could not be linked with the death of the deceased.

This, counsel said, the trial judge did not address at the trial.

. on his part, Mr.. Bcniface, learned state' Attorney , for. the

respondent Republic, declined to support the conviction against the

6'i

d* appellants. In his submission, he said the conviction was based on

only one aspect of the evicJence, namely the alleged confessions by

the appellants in their statr:ments Exh. pL, p2 and p3. These, Mr.
Boniface urged, are not confessions in terms of sectio n 27 (1) of the

Evidence Act, 1967. confessional statements which are envisaEed

unrJer this section, learned State Attorney submittecJ, are those which

are made not only to any pclice officer but to an officer of or above
 6

the rank of corporar. In this case, the statements were made

to a

Village Executive Officer (Pu/3) in the presence of other

villagers, Mr.
Boniface urged. PW3, being neither a police officer of
the designated
rank nor a lustice of the Peace, the statements were therefore
not
confessions covered under the law as provided for under
the Evidence
Act, t967. Mr. Boniface explained that extra judicial statements
before
a Justice of the' Peace are taken in accordance with laid down
f.r.;
-"
id procedure so that the accused person who opts to make the
statement, knows the implication of ma(ing it. Likewise, in a

statement made before a porice officer under section

27 (1) of the
Evidence Act, L967, the accused is cautioned before so that he is

made aware of what he says in the statement.

In this case, it'is not indicated in the'statements whether the

u ,.:
accused, the appellants, were made aware of the implication
i\
iU of their
statements which would be used against them during trial
as evidence,

Mr' Boniface urged. In the circumstances, he further contended

that
unlike the situation in tlre case of Dpp v. Nuru Mohamed
Gulamrasul (1988) TLR 82, the situation in the instant case
is

different. In
rygggo_E,ned (supra) the accused was interrogated
o3-
lta I9!99-9-ft!E !_ gryg _a search, a civilian and;r ccM Branch
F:g
::-t s. Here, Mr.
Boniface said, was a case of purported confession statements
which
were not confessions. so, in the
circumstance, with the exclusion
of
the purported confessional statements
Exh. p1, p2 and p3 which were
improperly admitted in evidence
as confessions, there would be
no
basis upon which to sustain conviction
against the appellants, Mr.
Boniface maintained.
E:\
tr:
EL.,:
I '

I
E with regard to the Post Mortem Examination
Report according to
which the cause of death was
unknown, Mr. Boniface said even
if it is
accepted that the appellants
beat the deceased, still, the death
of the
deceased coutd not be linkec
with the appellants. Unless there
was
evidence to connect the appellants
with the death of the deceased,
the
state Attorney owned that the
charge of murder against the
appellants
€;l was not proved.

Mr' Boniface, rearned state Attorney,

made brief observations
with regard to two aspects in
this case. r_Trtr
!E 1pfgle!,t*iryegurarity
in re,tq!i_o1 to__the.p1o-cedq19
fcriloyredglhe groluction of
exhibits when
the tria I within u ,**a--**uo. $econd, the right of the
ir

prosecution o-f rgply in terms :

ll

of the provisions of sections 296 il

and 201 )
I

of the Criminal procedure Act,

1gg5.
 8

with respect, we agree with Mr. Boniface, rearned state f ;

Attorney, for the respondent Repubric, and Mr. Mbogoro, tearned
counser for the appeilants, that the case
against the appertants was
solery based on the statements, Exhibits pL, p2 p3.
and This is

evident from the judgment in which the tearned

trial judge refers
throughout to the statements as confessions
made by the appellants
voluntarily' Dealing with the gtatements as confessions,
the trial judge
invoked section 33 (1) of the Evidence Act,
1967 in order to take into
consideration these statements as confessions
against the appellants
as co-accused. As a matter of fact, the learned
trial judge went
further in the judgment by pausirrg the question:

can the court convict sorery on the confession

. statements of the accused persons in

the
s.\
h;
absence of corroboration?
t,g\ -

In this situation, the issue as raised by counsel

for the appellants
and the State Attorney for the respondent
Repubric, is whether the
statements (P1, P2 and P3) are confessions
within the meaning of the
law, namely section 3 (L), 27 (1) (3), 28
and 33 (1) of the Evidence
Act' 1967 ' At this juncture we think it is instructive
to set out in fuil
the provisions of sectio n 27 (1) and (3) which provide
that:
 I

27 (1) A confession voluntarily made to a police {i' .

officer by a person accused of an offence may

be proved as against that person.

(3) A confession shall be held to be invotuntary if

the court believes that it was induced by any
threat, promise or other prejudice held out by
the police officer to whom it was made or by
any member of the Police Force or any other
fl'',.:
''' person in authority.
i,.l "

From these provisions as extracted, it is explicitly clear that the

confession envisaged under section 27 (L) of the Evidence Act, 1967 is

statement either by words or conduct made to, as correctly

conceded by counsel for OAIh the defence and the respondent

Republic, a police officer

of designated rank. In the case before us,
the statements were not 'made to a police officer. Rather, the
statements were made to the village Executive officer (pw3) in the
presence of the village security Committee members and other

villagers. In this light, it goes without saying that the statements were

erroneously taken by tlre trial judge as confessions falling under

sections 27 (L) and 33 of the Evidence Act 1967. This is evident

from the judgment when the trial judge said inter alia:
 t0
The court had admitted {,
during the triar within
a trial that the accused
persons made the
confessions and they did so voluntarily.
Those statements
were admitted and
marked
as exhibits p1, p2 p3.
and
Then the trialjudge
further said:

If the confession statements

were held to be
Sl , voluntary and that
they were made by
,..g "' ' the
accused persons, after
the denial had been
dismissed by this court,
now can the court
convict solely on the
confession statements
of
the accused persons in
the absence of
corroboration?

with due respect to the

rearned hiar judge,
it seems to us that
while he took it that
the statements were
confessions in terms
of the.
nu proceeded to consider
the question of corroboration.
*fl-., ,':*' Hence
his consideration of
the cases of Hatibu
Gandhi v. R (1996)
TLR
72; Ezra v' R (1963)
30g; Tuwamoi v. Llganda
EA
(1967) EA 84,
etc' This, comfren dabry,
was the correct move
corroboration is'concerned
in so
far as
in cases based on retracted
or repudiated
confessions' unfortunately,
the triar judge had proceeded
on a
wrong premise. As
arready indicated, he
had taken it that the
staternents were ccnfessions
which was not true. Had the mafter
 ll
been considered in its proper perspective,
we think, with respect, the trr

learned judge wourd have found that the statements were not
confessions as such, and so, there wourd
be no need to go further in
considering the question of corroboration.

As Mr. Boniface observed, perhaps the situation

would have
been different if as happened in the case
of Dpp v. Nuru
Mohamed Guramrasur (supra). some of the viilagers or
committee members came forward as witnesses
at the trial to testify
"to the effect that
they hearcl the appellants or any one of them
admit
killing the deceased, that would be admissible
evidence obtained in
the course of investigation. This was not
the case here where it was
taken that the statements were confessions
within the meaning
ascribed under the Evidence Act, Lg67. In the ciicumstance, secti.n
{ 33 of the Evidence Act, 1967 wourd not come
O,
t into pray either. Its
application presupposes that the statements
are confessions within
the meaning of the raw. This as atready
shown was not so.

in the event, for the reasons we have endeavoured

to give, we
are senred in our minds that it was not proper
for the triar judge to
acjrnit the statements Exh. Pt, Pzand p3 as confessions in terms of
the provisions of the Eviclence Act, Lg6T " As these \,vere the scle
 12

basis on which the conviction

was founded, once this evidence
is f ,1.

excluded, there woutd be no

other evidence on which to
sustain the
conviction against the appellants.

Furthermore, we wish to dear briefry with the post Mortem

examination report. As said
before, at the prompting of
the court,
both Mr. Mbogoro and Mr. Boniface,
rearned counser and state
Attorney respectively conceded
i. that from the post Mortem
9 Examination Report which
was conducted about six months
after the
death of the deceased, the
cause of death was unknown. In that
situation, even if it is accepted for the sake of
argument that the
appeilants assautted the deceased,
stiil, there wourd be no evidence
linking the appeltants with the
death of the deceased. It is
common
" ground that in murder-charges,
the cardinar function of post
mortem
,-'' examination on the body of the deceased, subject
'3\ of the homicide
charge' is to establish the
nature of the injuries sustained,
the cause
of death with a view to srrow
how the act of the accused
is
connected with the death
of the deceased. In this regard,
the
evidence of Awatu d/o
Marenga (pw2) that she noticed
the neck of
the deceased was roose on
25/fi/7ggg when she washed
the dead
i:r':dy vvas of no avair either.
The cicctor who conducted the pcst
 t3

mortem examination on 16.6.19g9 found no fractured bones. tir

Therefore, the evidence of pWZ on this point
was of no consequence
as well regarding the cause of death.

.'by

nts

atla,E.e $;l[g* i:, :+it ., .ra,{,

r1"Qn dg.a,p(e d m s_aExhj bjts B1

,.c;,W,i
f.rl-pn:i=;p,;!-V- [:.*€ad,,::o o d
*.'
.i:
l1'e;"

i9- .t4 Hns ei*ri ilwith i ra' a

' 4Qr€,;mlgf.!f9...,Q...9n,!.y.u ,identification

(I3) urd futer, ivhen the assessors resume
at the triar of ilru r*in

rlents,:were,,ol reody, maiked as"

 i

ll:
(,: Finally, a word right of repty of the prosecution
a"' in
relation to sections 296 and 201
of the criminat procedure Act, 1985.
on this Mr' Boniface, learned state Attorney,
had called the attentibn
of the court to the fact that it is not
certain as to what is the correct
regar procedure regarding the
right of repry of the prosecution. He
said practice has shown that at
times some judges ailow finar
submissions by the prosecution
whire others do not. In his view,
,:.i:
1"" r' there
is no specific provision in the criminal procedure Act, 1gB5
relating to finat submissions. This perhaps,
he said, causes a diversity
of opinion among the iudges. The
current position of the law on this
aspect he said was reiterated
by this court in Ezekiel sylvester
v.
Republic (1980) TLR 302. In this
case this court held that the
prosecution have no right
of reply unless the Attorney General
or the
Director of pubtlc Frosecutions
appeared in perso,.
'a-
, .,tt
L
:l
I
15
I
v
i
i

Even though this is the legal position taken by the Court on the 1t

right of reply by the prosecution, it may well be that there is merit in

the submission by Mr. Boniface that there is need to harmonise the

interpretation of sections 201 and 296of the Crimina! Procedure Act,

1985. This is pafticularly so because the right of reply referred to

under sections 20L and 296 of the Criminal Procedure Act, 1985
;

g-, relate to the case for the prosecution and the defence respectively. i

E rl

il
In that case, it would appear that the right to reply in submissions or j

address by'counsel is a stage later after both the prosecution and the

defence have ctosed their cases. In that light, perhaps, as urged by

Mr. Boniface, it may well be desirable to have the matter looked into

with a view to make the distinction clearer. However, that course of

action we think is left open for some other appropriate occasion.

b.; .:
Now we revert to the merits of the appeal. In summary, for
the reasons we have endeavoured to show, the conviction against

the appellants cannot be sustained on the evidence adduced against

them. First, with the exclusion of the statements of the appellants

Exh. P1, P2 and P3 from the evidence, there was no other evidence

implicating the appellants. Seeond, as the cause,of death of the

 I.
t
'16 I
F-
i

t
v
established, the death of the deceased could not
deceased was not

be linked with the aPPellants'

Insumtotal,Wearethereforesatisfiedthatthecaseagainst
the surrounding
the appellants was not proved' Admittedly'
but as a criminal
circumstances of the case are highly suspicious,

chargesuspicionaloneisnotenoughhoweverstrongitmaybe'At

alltimes,aSacriminalcharge,itshouldbeprovedbeyondall
{.
case'
reasonabte doubt' This was not done in this

Intheevent,theappealisallowed,convictionquashedand
aside. The appellants, Ausi Mamu' Daniel Mwinyiheri
sentence set
are to be released from custody forthwith unless
and Rajabu Tavira,

otherwise, lawfullY held'

f:

the original'
I certify that this is a true copy of