Charles Faustine vs Republic (Criminal Appeal No. 643 of 2023) [2026] TZCA 287 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM: WAMBALI, J.A.. MAKUNGU, J.A. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 643 OF 2023 CHARLES FAUSTINE................................. ................. APPELLANT VERSUS THE REPUBLIC ................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Massam. 3.^ Dated the 11th day of September, 2019 in Criminal Sessions Case No. 54 of 2021 JUDGMENT OF THE COURT 11th February & 9th March, 2026 WAMBALI. J.A.: This appeal arises from the decision of the High Court of Tanzania at Shinyanga in Criminal Sessions Case No. 54 of 2021 dated 11th September, 2023. In that case, Charles Faustine was arraigned before the High Court of Tanzania at Shinyanga upon information for murder contrary to section 196 of the Penal Code. The particulars in the information alleged that, on 26th October, 2020 at Mwang'honoli village within Maswa District in Simiyu Region, the appellant murdered one Milembe d/o Geha. Needless to say, the appellant pleaded not guilty to the information. To substantiate the allegation levelled against the appellant, at the trial, the prosecution relied on the following witnesses; Kurwa Faustine (PW1), F. 3905 D/Sgt Julius (PW2), Peter Musa (PW3), Joseph Michael (PW4) and A/Insp Philipo (PW5). Three exhibits; namely, Post Mortem Report, sketch map of the scene of the crime scene and bush knife were also tendered and admitted as exhibits PI, P2 and P3, respectively. The appellant defended himself against the allegations. He testified as DW1 and sought the support of one witness, Ramadhani Muhoja Shija (DW2) and also tendered his extra judicial statement which was admitted as exhibit Dl. Basically, the prosecution case which was in the end substantially believed by the trial court commenced with the testimony of PW1. He testified that, on 26th October, 2020 he was assigned by his mother to pick the deceased at her home. On arrival, the door was closed and locked with a padlock. However, PW1 smelled something strange and on further inquiry he noticed some blood inside the locked door. PW1 returned 2 home and informed his mother, who together with Dalali Geha went to the Village Executive Officer (VEO) office and informed him on the news. When the VEO visited the deceased place together with police auxiliary commander, the door of the deceased house was broken whereby the body of the deceased was found laid on the floor. They noted that the deceased had a wound on the neck, three fingers missing and the body was swollen with bad smell. The information reached the police and the investigation commenced. PW5 testified to have visited the scene of crime upon receiving the information about the deceased's death. He stated that among other things, he fetched a doctor (PW4) and some other investigators, who together visited the scene of crime. PW5 drew the sketch map of the scene of crime and proceeded with investigation of the case. According to PW5 the investigation revealed that the appellant was responsible for killing the deceased. Upon the appellant arrest, PW5 was assigned to record the cautioned statement of the appellant. However, the respective cautioned statement was rejected by the trial court for having been obtained against the law that is involuntarily. 3 It is on record that the deceased body was examined by PW4 who discovered that there were wounds on the neck and three fingers were missing. The examination revealed further that the deceased body was swollen and rotten with maggot. Ultimately, PW5 concluded that according to his findings, the cause of death was loss of blood caused by the wounds. PW2 testified to have been among police officers who arrested the appellant on 1s t November, 2020. PW2 also participated in retrieving the bush knife (panga) from the appellant's house. The said search and seizure was witnessed by, among others, PW3. It is in the record of appeal that the appellant gave the notice to rely on the defence of alibi. In his defence, the appellant denied to commit the offence and stated that on the date when the offence was allegedly committed, he was outside the village working as mason. He emphasized that, although his bush knife (panga) was taken by the police, there was no connection between the same and how it was applied in committing the offence. The appellant claimed to have been beaten by the police officers in order to extract the confession 4 from him. The appellant claimed that the prosecution witnesses did not connect him with the offence. DW2 who testified for the defence admitted to have recorded the extra judicial statement of the appellant. DW2 stated that the appellant told him that he was not around when the deceased was killed even though he admitted before the police officer that he was involved in the offence. DW2 revealed that, during the recording of the extra judicial statement, the appellant had fresh wounds suggesting that indeed he was tortured before he was sent in the office. At the height of the trial, the High Court, having evaluated the evidence for both sides on record found that the prosecution proved the case against the appellant beyond reasonable doubts. In the result, it convicted the appellant of the offence of murder and imposed a mandatory sentence of death by hanging. Aggrieved, the appellant has preferred an appeal to the Court. It is noted that, initially the appellant lodged the memorandum of appeal consisting eight (8) grounds of appeal. However, on 4th February, 2026, the learned counsel who was 5 assigned to represent him filed a supplementary memorandum of appeal containing two grounds, in substitution of the earlier grounds of appeal lodged by the appellant. The respective grounds are: "1. That ; the prosecution failed to prove the case beyond reasonable doubts. 2. That, the trial court erred in law and facts in convicting and sentencing the appellant relying on extra judicial confession which was equivocal." However, before the commencement of the hearing of the appeal, it was unreservedly agreed by both sides and the Court that, the thrust of the appellant's appeal lies on the question whether the prosecution proved the case beyond reasonable doubts. Submitting in support of the appeal, Ms. Mwaseiela, learned counsel for the appellant argued that there was no direct evidence from the prosecution that the appellant was seen committing the offence of murder. She added that, the evidence of PW2 who arrested the appellant on allegation that he committed the offence was not credible. In her view, the testimony of PW2 that the appellant was found with a bush knife (panga) at home after his arrest could not be connected with the commission of the offence as the witness did not state how the bush knife was used by the appellant to murder the deceased. Besides, she argued, the testimony of PW2 that the appellant admitted to have killed the deceased is not supported by the rest of the evidence on the record. She emphasized that the evidence of PW1 was also not reliable because the people who accompanied him to go to the scene of crime, including the VEO, did not appear to testify at the trial. That his evidence was simply that after the police investigated the case, they found that it was the appellant who committed the offence. On the other hand, Ms. Mwaselela submitted that the extra judicial statement recorded before DW2 cannot be relied in evidence to ground conviction of the appellant as it was recorded in contravention of the Chief Justice's Circular. She concluded her submission by urging the Court to find that the prosecution case was not proved beyond reasonable doubt. In reply, Mr. Anenius Kainunura, learned Principal State Attorney who appeared for the respondent Republic, outrightly 7 supported the appellant's appeal. He prefaced his submission by stating that there is no dispute that the deceased died unnatural death as testified by PW1 and PW4. That, the postmortem report (exhibit PI) also confirmed the evidence of PW1 and PW4 regarding the death of the deceased. He added that it is apparent as per the nature of death of deceased that the attacker had ill intention. However, he submitted that out of the five witnesses of the prosecution, no body saw the appellant committing the offence as per the evidence on the record. Mr. Kainunura submitted further that the prosecution has the duty to prove the charge beyond reasonable doubt To support his stance, he made reference to the decision in Mwita Keryoba Mwita v. The Republic (Criminal Appeal No. 156 of 2022) [2025] T2CA 1074 (13 October 2025, TANZLII) and The Director of Public Prosecutions v. Focus Malindi (Criminal Appeal No. 542 of 2022) [2025] TZCA 305 (27 March 2025, TANZLII). In this regard, the learned Principal State Attorney argued that it was unfortunate that the appellant was convicted based on alleged oral confession before PW5 and the extra judicial 8 statement recorded before DW2. In his submission, reliance on the oral confession had no justification as the cautioned statement which was recorded by PW5 was not admitted by the trial court after it was declared that it was not voluntarily given. Therefore, he submitted, the oral confession before the same witness could not be relied in evidence in the circumstance of what was concluded in respect of the cautioned statement. In short, the oral evidence could not have been extracted freely. The respective evidence was therefore unreliable since PW5 was not credible. With regard to reliance on extra judicial statement (exhibit Dl), Mr. Kainunura joined hands with the appellant's counsel and argued that exhibit D l was not legally obtained as it was in contravention of the Chief Justice's Circular, particularly, by failure to show the place the appellant stayed and slept and whether he was coerced to confess before he was sent to record his statement. To stress his point, he made reference to the decision in Mpemba Mashenena v. The Republic (Criminal Appeal No. 557 of 2015) [2018] TZCA 675 (9 July 2018, TANZLII). In this regard, he argued that failure to observe the Chief Justice's Circular is fatal and rendered the extra-judicial 9 statement unreliable. He accordingly relied in Mwita Keryoba Mwita v. The Republic (supra). In the end, the learned Principal State Attorney submitted that upon discounting the evidence of PW5, the alleged oral confession and the extra-judicial statement, the remaining evidence on the record cannot support the prosecution case against the appellant. In essence, he argued, the prosecution case was not proved beyond reasonable doubt. Therefore, he prayed that the appeal be allowed. We agree with the concurrent submissions of the counsel for the parties that contrary to the finding of the trial court, the prosecution case was not proved to the hilt. It is apparent that the alleged oral confession of the appellant before PW5 is unreliable. This is because, it is the same witness who the trial court had adjudged that he recorded the cautioned statement of the appellant involuntarily hence it was held inadmissible. It was thus wrong for the trial court to have relied on the oral confession before PW5 as being credible. Having discounted the alleged oral confession, the other evidence which was relied on is the extra judicial statement of 10 the appellant recorded before DW2. However, as correctly submitted by the learned counsel for the parties, it is apparent in the record of appeal that the same was procured in contravention of the Chief Justice's Circular. It is important to stress that Justices of the Peace must comply with the guidance provided in the respective Circular to avoid miscarriage of justice. In Japhet Thadei Msigwa v. The Republic, Criminal Appeal No. 367 of 2008 (unreported), the Court stated that: " So> , when Justices o f the Peace are recording confessions o f persons in custody o f the police, they must follow the Chief Justice's instructions to the letter... We think the need to observe the Chief Justice's instruction are twofold. One, if the suspect decided to give such statement, he should be aware of the implications involved. Two, it will enable the trial court to know the surrounding circumstances under which the statement was taken and decide whether or not it was given voluntarily." In the present case, as correctly stated by the Principal State Attorney, the Justice of the Peace (DW2) omitted to show whether she knew the place where the appellant slept before he was sent to her and whether there was any threat or promise or 11 violence to persuade him to give the statement. These matters were crucial to enable the trial court to understand whether the respective statement was procured voluntarily or otherwise. In the circumstances, exhibit D1 cannot be held to be reliable in grounding conviction of the appellant. Indeed, the omission was fatal. In the event, we discount exhibit D1 from being relied in evidence. We have further noted that the evidence of PW1, who was indicated as a pagan, was not taken under affirmation. PWl's evidence was therefore recorded contrary to the provision of section 212 (then s. 198) of the Criminal Procedure Act, Cap 20 (the CPA). The consequence, which should befall the testimony of PW1 is to be discounted, as we hereby do. We are fortified in this stance by the decision in Peter Pinus and Others v. Republic (Criminal Appeal No. 10 of 2016) [2016] TZCA 2244 (1 January 2016, TANZLII), among many decisions of the Court. In the event, the remaining evidence on the record cannot sustain the conviction of the appellant as no any person among the remaining witnesses saw him committing the offence. Besides, there is no any circumstantial evidence which may link 12 the appellant with the commission of the offence. To this end, we are satisfied that the prosecution case was not proved beyond reasonable doubt. We thus, uphold the sole ground of appeal. In the result, we allow the appeal, quash the conviction and set aside the sentence of death by hanging. Ultimately, we order that the appellant be released from custody unless his incarceration is connected with other lawful causes. DATED at SHINYANGA this 7th day of March, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL O.O. MAKUNGU JUSTICE OF APPEAL A.Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 9th day of March, 2026 in the presence of the Appellant in person and Mr. Leonard Kiwango, learned State Attorney for the Respondent/Republic, via virtual Court, and Mr. Elias Nkwabi, Court Clerk; is hereby certified as a true copy of the original.