Samwel Mgomelwa @ Petro & Others vs Republic (Criminal Appeal No. 289 of 2024) [2026] TZCA 400 (10 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MWANPAMBO. J.A.. MWAMPASHI. J.A. And MLACHA, J.A.) CRIMINAL APPEAL NO. 289 OF 2024 SAMWEL MGOMELWA @ PETRO........................................... 1 st APPELLANT RAMADHANIIDD @ BAKARI .............. ................................ 2 nd APPELLANT MANDA ULINJE @ MOMBO ................................................. 3 rd APPELLANT AMINI MASILIMU @ ZABLON..............................................4™ APPELLANT ELIA LENDAMA ............... . .................................................. 5™ APPELLANT ANDASONI CHUYO @ LUBEREGE.........................................6 th APPELLANT VERSUS THE REPUBLIC ....... . ............................................ . ............ RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Babati Manyara) (Earthy, J.) dated the 05th day of March, 2024 in Criminal Sessions Case No. 47 of 2021 JUDGMENT OF THE COURT 26th February & 10th April, 2026 MWAMPASHI. J.A.: Samwel Mgomelwa @ Petro, Ramadhani Idd @ Bakari, Manda Ulinje @ Mombo, Amini Masilimu @ Zablon, Elia Lendama and Andasoni Chuyo @ Luberege (henceforth the 1st, 2n d , 3rd ,4th , 5th and 6th appellant respectively) were jointly charged before the High Court of Tanzania at Babati Manyara (the trial court) with the offence of murder contrary to sections 196 and 197 of the Penal Code. They were jointly charged with other three persons namely; George Kaonwa @ Mtangwa, Yasini Ally @ Issa and Lameck Paulo @ Mtuko who were, however, acquitted and thus not parties to the appeal. Having being found guilty as charged, the appellants were convicted and sentenced to suffer death by hanging. Aggrieved, they have preferred the instant appeal before the Court. It was alleged in the particulars of the offence that, on 02.09.2020, at Kazingumu area Laalaa Village, within the District of Kiteto in Manyara Region, the appellants murdered one Njokuti s/o Moringe @ Mbaazi (the deceased). The appellants denied the charge. In a bid to prove that the appellants committed the charged offence, the prosecution called 11 witnesses and tendered in evidence a number of exhibits most of them being documentary. From the evidence on record, it was common ground that, on 12.09.2020 the dead body of the deceased was found partially buried in sands at a certain isolated hilly and slope area within Laalaa Village. It was the Laalaa Village Chairperson, one Halid Chubi Swaya (PW4), who called the police and reported the incident. He also witnessed the dead body being medically examined by Dr. Hassan Mkwachu (PW1) of Enguselo Health Centre, the police officers drawing the sketch map of the scene of crime and later the deceased's dead body being buried. According to PW1 who performed the autopsy of the deceased's body, the body whose hands, legs and neck were tied up with a rope had cut wounds on the head, face and hands and it had started decomposing. The deceased was also wearing a bangle on his left hand. It was concluded by PW1 that the deceased had died more than 7 days earlier and that the attack by a sharp object leading to severe bleeding and the damage on his head which affected the brain, were the main cause of the death. To that effect, a Post Mortem Examination Report in which his findings had been posted, was tendered in evidence as exhibit PI. From the testimony of PW1, PW4 and from the deceased's relative one Kisiok Masiaya (PW3), it was thus proved beyond reasonable doubt that, the body was that of the deceased and that the death was not natural. As to who was behind the death, it was the testimony of E.6329 D/Sgt. Kassim (PW6) of Matui Police Station that, on 12.09.2020, he received a phone call from PW4 who informed him that a dead body which happened to be of the deceased, had been found at Laalaa Village. Thereafter, being accompanied by PW1 and a police officer in the name of Stephano, PW6 rushed to Laalaa Village. Upon getting there, he observed that the deceased's dead body which was partially buried, had cut wounds on the forehead and hands. He also witnessed the autopsy of the deceased's body being performed by PW1 at the scene of crime, took statements from some of the villagers who were there and drew the sketch map of the scene of crime which he tendered in evidence as exhibit P3. PW6 also told the trial court that, up to when he was leaving the scene of crime there was no information on who had murdered the deceased. G.5310 D/Cpl. Mussa who testified as PW2 told the trial court that the case file was assigned to him for investigation on 13.09.2020. In the course of investigation, it came to his knowledge that the deceased was murdered by some members of Laalaa Village local militia group (Sungusungu). That information led to the arrest of Yasin Ally, George Kaonwa and the 4th appellant on 20.09.2020 by G.9659 Cleopa (PW5) of Kiteto Police Station. Upon being interrogated, Yasin Ally, George Kaonwa and the 4th appellant admitted to have killed the deceased and named other 6 persons including the 1st, 2n d , 3rd , 5th and 6th appellants as their co-culprits who were later arrested on 26.09.2020. It was PW2's further testimony that, the 4th appellant took him with PW3, PW4 and PW5 to his home at Laalaa Village where a mobile phone claimed by him to have belonged to the deceased was recovered. The mobile phone was tendered in evidence as exhibit P2. The prosecution also tendered in evidence five cautioned statements recorded under section 58 (redesignated as section 59) of the CPA. Firstly, was the 1s t appellant's cautioned statement recorded by G. 2200 D/C. Moshi (PW7) which was admitted in evidence as exhibit P4. The 2n d appellant's cautioned statement recorded by PF.23109 A/Insp. Gregory (PW8) was tendered in evidence as exhibit P5. Then, there were the 3rd appellant's cautioned statement recorded by A/Insp. Oscar Kusare (PW11) tendered and admitted in evidence without objection as exhibit P8, the 5th appellant's cautioned statement recorded by WP.8162 D/Cpl. Tajiri (PW10) which was tendered in evidence as exhibit P7 and that of the 6th appellant recorded by F.3115 D/Stg. James (PW9) which was tendered in evidence as exhibit P6. It should also be noted that the appellants' cautioned statements were recorded by the above-named police officers in the course of interviewing them as directed by OC-CID one George Malema. The central story from the cautioned statements was that, the 1s t appellant who was the leader of the Village local militia group, ordered the rest of the appellants to arrest the deceased for allegedly causing chaos at his pombe shop and/or for being accused of stealing cattle. Having arrested the deceased, the appellants killed, dragged and buried him at the place where his dead body was later found by the villagers. In their respective sworn and affirmed defence, the appellants maintained their denial. They refuted to have been involved in the death of the deceased. Each of them narrated on how he was arrested before being mistreated, assaulted and forced to confess and sign on the cautioned statements. In its judgment, as we have alluded to earlier, the trial court found it established beyond reasonable doubt that the deceased's death was unnatural. Regarding the issue on who was behind the death of the deceased, the trial court found to the hilt that the appellants were responsible for the death. It was found that the 1s t, 2n d , 3rd , 5th , and 6th appellants' cautioned statements (exhibits P4, P5, P6, P7 and P8) were recorded in accordance with the law and also that the statements were truthful as they provided a detailed account of what transpired on the fateful night leading to the death of the deceased. As for the 4th appellant, though the doctrine of recent possession in respect of the mobile phone allegedly recovered from him could not be applied against him on account that the prosecution had failed to prove that the phone belonged to the deceased, his oral confession before PW2, PW3, PW4 and PW5 was found to have been made voluntarily and freely sufficient to support the conviction against him. The trial court was also satisfied that, based on the order allegedly made by the 1s t appellant for the deceased to be arrested and killed and the nature of the wounds inflicted on the deceased, the appellants had formed an intention to kill the deceased. The appellants' respective defence was found weak and an afterthought. In the instant appeal, the High Court's judgment is being faulted on the following grounds of complaint: One, that the case against the appellants was not proved beyond reasonable doubt; two, that the procedure in conducting the trial was flouted; three, that the chain of custody of exhibit P2 was broken; four, that the conviction was wrongly grounded on exhibits improperly handled and preserved; five, that the conviction was wrongly grounded on cautioned statements not procured in accordance with the law; six, that the prosecution unreliable evidence was given undeserved weight; seven, that, there was delay in arraigning the appellants and eight, that the defence evidence was not considered. At the hearing of the appeal, while Ms. Mary Lucas, learned Principal State Attorney, single-handedly represented the respondent Republic, the appellants had the services of a team of learned advocates namely; Messrs. Hamisi Mkindi, Daniel Dannland Lyimo, Kapimpiti Mgalula, Nicodemus Mathew Mbuga, Mwamili Habibu Mahimbali and Ombeni Cuthbert Kimaro. At the outset, Ms. Lucas expressed her position that she was not opposing the appeal. She supported the appeal on the 1st ground of complaint that the case against the appellants was not proved beyond reasonable doubt. The appeal having been supported, Mr. Mkindi who, on behalf of all appellants, addressed us first, abandoned the 3rd and 4th grounds of complaint. The 7th and 8th grounds of appeal were not argued by the counsel for the appellants and for that reason we take it that the grounds were abandoned too. Mr Mkindi argued the 2n d and 5th grounds conjunctively contending that the procedure in admitting exhibits P4, P5, P6, P7 and P8 on which the trial court heavily relied in convicting the appellants was flawed. He expounded that, the cautioned statements were admitted in evidence in the appellants' respective trials within-trial and not in the main trial. Placing reliance on the decision of the Court in Seleman Abdallah & Others v. Republic [2010] TZCA 330, Mr. Mkindi argued that as the cautioned statements were not tendered and admitted in evidence in the main trial, there were no cautioned statements admitted in support of the prosecution case and the same should be expunged from the record. Without the cautioned statements, Mr. Mkindi argued, there is no evidence on which the conviction could be grounded. On his part, Mr. Mgalula argued the 1s t and 6th grounds together. He submitted that the case was not proved to the hilt because there was a variance between the evidence and the information. He pointed out that, while according to the information the murder was committed on 02.09.2020 at Kazingumu Laalaa, the sketch map (exhibit P3) shows that the murder was committed at Kazingumu Partimbo which was also the evidence of PW6. Mr. Mgalula faulted the trial court Judge who having noted the variance, concluded that the same was minor and not fatal. He argued that the variance was material and fatally dented the prosecution evidence against the appellants rendering the case not proven beyond reasonable doubt. In addition to what was argued by Messrs. Mkindi and Mgalula, Mr. Kimaro submitted that, the prosecution failed to prove the case against the appellants because the cautioned statements on which the conviction was grounded were contradictory. He pointed out that, while according to the 1st appellant's cautioned statement (exhibit P4) the deceased was killed for misbehaving and causing chaos at the 1s t appellant's pombe shop, to the 2n d appellant as it is evident in his cautioned statement (exhibit P5), the deceased was killed because he was a cattle thief. Mr. Kimaro argued further that, the cautioned statements which were retracted and not corroborated by any other piece of evidence could not be relied upon in grounding the conviction. As we have alluded to earlier, Ms. Lucas supported the appeal on the 1s t ground of appeal that the case against the appellants was not proved to the required standard. She submitted that the appellants' conviction was wrongly grounded on the cautioned statements which were not true and which lacked corroboration. Ms. Lucas contended further that what was allegedly confessed in the cautioned statements did not tally with other evidence on record. She expounded that, while according to PW1 and exhibit PI, the deceased suffered multiple cut wounds inflicted by a sharp object, in the cautioned statements the appellants stated that they used an iron bar to attack the deceased. Relying on the decision of the Court in the case of Nuru Venevas & 2 Others v. Republic [2023] TZCA 17300, Ms. Lucas argued that uncorroborated cautioned statement can be relied upon only where it is true. In the instant case, she argued, the cautioned statements were not true. Counsel also contended that it cannot be said that the 4th appellant who was under arrest was a free agent when he allegedly confessed before PW2, PW3, PW4 and PW5. She thus argued that, as the cautioned statements were not true and the 4th appellant's confession was not voluntarily made, there was no evidence in support of the case against the appellants. Notwithstanding the above concession of the appeal, Ms. Lucas did not agree with the appellants' counsel that, under the circumstances of this case where the trial was conducted without the aid of assessors, the admission of the cautioned statements in the trials with in-trial, was fatal. She was of the position that the appellants were not prejudiced. She also did not agree with the appellants' counsel that there was variance 10 between the evidence and the information, since according to her, Partimbo is within Laalaa Village. In view of the grounds raised in support of the appeal and having heard the submissions made by the counsel for the parties, a few issues arise for our consideration before addressing the core issue on whether the case against the appellant was proved beyond reasonable doubt or not. These are; one, the admission of the cautioned statements in trials within-trial; two, the alleged variance between the evidence on record and the information regarding the name of the place the murder was committed; three, the 4th appellant's oral confession; and four, the validity and admissibility of the 1s t, 2n d , 3rd ,5th and 6th cautioned statements. We shall begin with the complaint that there was a procedural irregularity where by the 1st, 2n d , 3rd ,5th and 6th cautioned statements (exhibits P4, P5, P6, P7 and P8) were admitted in evidence in trials within- trial and not in the main trial. We agree with Ms. Lucas that, under the circumstances of this case where the trial was not conducted with the aid of assessors, the fact that the cautioned statements were admitted in evidence in trials within-trial and not in the main trial was not a fatal irregularity. It is so because the procedure which is adopted in trials with the aid of assessors, the assessors are directed to retire when a trial i i within-trial is to be conducted. This is aimed at avoiding the assessors being unduly prejudiced by hearing the evidence which might afterwards be held inadmissible. For the above given reasons, the complaint is dismissed for being misconceived and baseless. Regarding the complaint that there was a variance between the information and the evidence on record in relation to the name of the place the offence was committed, we agree with the position taken by the trial court that, in consideration of the circumstances of the instant case, the variance was minor and immaterial. It is true that, according to the sketch map (exhibit P3), the scene of crime was said to be at Kazingumu Partimbo while the information indicated that the offence was committed at Kazingumu area Laalaa Village. However, under the circumstances of the instant case where there was no dispute on the deceased's unnatural death, the variance regarding the name of the place the murder was committed becomes immaterial. Regardless of the place the murder was committed, the crucial issue was whether or not the appellants were behind the murder in question. We now turn to the oral confession allegedly made by the 4th appellant before PW2, PW3, PW4 and PW5 which was found by the trial court to have been voluntarily made and sufficient to ground the conviction against the 4th appellant. Our starting point is section 3 (1) (a) 12 of the Evidence Act [CAP. 6 R.E. 2023] (the Evidence Act) under which it is provided that a confession may be oral, written, by conduct, and/or a combination of all of the above or some of them. It is also settled that, an oral confession made before or in the presence of a reliable witness, be they civilian or not, may be sufficient to ground a conviction provided the maker was a free agent when he said the words imputed against him. See- The Director of Public Prosecutions v. Nuru Mohamed Gulamrasul [1988] T.L, R. 82, Posolo Wilson @ Mwalyego v. Republic [2018] TZCA 635 and Patrick Sanga v. Republic [2010] TZCA 340. Guided by the above principle, the issue in the instant case is whether the 4th appellant was a free agent when he allegedly stated that he was involved in the murder of the deceased as claimed by PW2, PW3, PW4 and PW5. The fact that the 4th appellant was arrested on 20.09.2020 and that on 26.09.2020 he was taken back to his house by PW2 accompanied by PW3, PW4 and PW5, are not in dispute. It is also the evidence of PW2, PW3, PW4 and PW5 that the 4th appellant having produced the mobile phone allegedly belonging to the deceased he also stated that he took the mobile phone from the deceased after he, along with other appellants had killed the deceased. According to PW3, the 4th appellant was taken to his house by a police car with armed police officers 13 behind it. PW3 did also testify that, the 4th appellant was under arrest and hand-cuffed. The same was testified by PW4 that the police officers were armed and he was hand-cuffed. What can be gleaned from the above evidence of PW2 and PW3 is that when the 4th appellant allegedly confessed by stating that he participated in committing the murder of the deceased, he was not only under arrest of armed police officers but he was also hand-cuffed. The pertinent question flowing from the above facts is whether the 4th appellant was, under those circumstances, a free agent. Our considered view is that an accused person placed under such circumstances cannot be said to be a free agent and a statement he makes incriminating himself cannot amount to a voluntary confession. The trial court misapprehended the evidence on record and wrongly concluded that the 4th appellant voluntarily confessed to have committed the murder in question. As rightly argued by Ms. Lucas, the 4th appellant was not a free agent and the confession he allegedly made was not voluntary and could not ground his conviction. Finally on the validity and admissibility of the 1st, 2n d , 3rd , 5th and 6th appellants' cautioned statements (exhibits P4, P5, P6, P7 and P8), it is a settled principle that, conviction may be based on a retracted or repudiated confession without corroboration if the court is fully satisfied 14 that the same is true and was made voluntarily. See- Tuwamoi v. Uganda [1964] EA 84, Elinema Kibo v. Republic [2013] T7CA 2148 and Ndalahwa Shilanga & Another v. Republic [2011] T2CA 159. In the instant case, as rightly argued by counsel for the parties, the truthfulness of the cautioned statements is doubtful. In their respective cautioned statements, the 1st, 2n d , 3rd , 5th and 6th appellants contradicted themselves on the reason for the arrest of the deceased. While some of the appellants stated that the deceased was arrested for being a cattle thief, others said he was arrested for misbehaving and causing chaos at the 1s t appellants pombe shop. Furthermore, while according to the prosecution witnesses, and particularly to PW1, the deceased had sustained multiple cut-wounds inflicted by a sharp object, the appellants stated in the cautioned statements that they attacked the deceased by using sticks and an iron bar. Besides the cautioned statements which were purportedly taken under section 58 (redesignated as section 59) of the Criminal Procedure Act, Cap 20 (the CPA), not being truthful as pointed out above, the worst part of them is that they were not taken in accordance with the law. The statements were neither taken at the instance of the appellants nor were they written out by them as the law under section 59 of the CPA requires. As testified by PW7, PW8, PW9, PW10 and PW11 who are the police 15 officers who recorded the cautioned statements in question, they recorded the statements having been directed to do so by the OC-CID one George Malema. This was in violation of section 59 (1) of the CPA under which it is provided that: "59.-(1) Where a person under restraint informs a police officer that he wishes to write out a statement the poiice officer shaii- (a) cause him to be furnished with any writing materiai he requires for writing out the statement; and (b) ask him , if he has been cautioned as required by paragraph (c) of section 54f to set out at the commencement of the statement the terms o f the caution given to him, so far as he recaiis them It has to be insisted that section 59 of the CPA is applicable only when an accused person wishes to record his own statement. Further, as it was underscored by the Court in the case of Mbuzi Lushona @ Mwangaiki & 2 Others v. Republic [2024] TZCA 964, the provisions of sections 58 and 59 of the CPA were not superfluously added to the Act. Police officers recording suspects' cautioned statements under the two provisions must fully comply with the requirements. Non- compliance with sections 59 of the CPA not only compromises the integrity of the 16 investigation but also vitiates the rights of the accused. Moreover, any deviation from the established protocols or recording cautioned statements without compliance with the mandatory requirement, renders the statements inadmissible in evidence. See- Mussa Mustapha Kusa & Another v. Republic [2011] TZCA 356, Abdallah Kulukuni v. Republic [2017] TZCA 262 and Msafiri Emmanuel Daniel & Another v. Republic [2020] TZCA 1925. Since, in the instant appeal, the 1st, 2n d , 3rd , 5th and 6th appellants' cautioned statements (exhibits P4, P5, P6, P7 and P8) were taken in violation of section 59 of the CPA, they were inadmissible in evidence. The trial court ought not to have admitted them in evidence. It erred in grounding the appellants' conviction on them. The statements in question are accordingly expunged from the record. The cautioned statements (exhibits P4, P5, P6, P7 and P8) having been expunged from the record and after the 4th appellant's confession has been found not voluntarily made, there remains no evidence on which the appellants' conviction could be grounded. That being the case, the appeal is allowed on the ground that the case against the appellant was not proved beyond reasonable doubt as the law requires. Consequently, the conviction is quashed, and the sentence imposed on the appellants is 17 set aside. It is ordered that the appellants be forthwith set free unless they are otherwise held for any other lawful cause. DATED at DODOMA this 8th day of April, 2026 L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered Virtually this 10th day of April, 2026 in the presence of the appellants in person and Mr. Stanslaus Halawe, learned State Attorney for the respondent and Ms. Anna Utou, Court Clerk; Court is hereby certified as a true copy of the original. y — R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 18