Simon Idakus Luoga vs Republic (Criminal Appeal No. 300 of 2023) [2025] TZCA 1045 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA f CORAM: MKUYEjJjAiJM/VSQUEJJLAnd-ISMAIktAAil CRIMINAL APPEAL NO. 300 OF 2023 .....................APPELLANT SIMON IDAKUS LUOGA ............... ............. VERSUS ... RESPONDENT THE REPUBLIC ....... . ........... . .... . ................ . ............... (Appeal from the decision of the High Court of Tanzania, at Songea) (Madeha, 3,) dated the 20th day of October, 2022 in Criminal Sessions Case No. 32 of 2022 nmflMENT OF THE COURT 29th September & 07th October, 2025 MASOUP, JA.: The appellant was found guilty and convicted of the offence of murder contrary to section 196 of the Penal Code. He was, accordingly, sentenced to death by hanging. The allegation on which the conviction was founded was that the appellant on 17th June, 2021 at Luhagara Village within Mbinga District in Ruvuma Region did murder one Maurus Augustino Mtundu (the deceased). The conviction was founded on a total of eight prosecution witnesses and three exhibits which included a confessional cautioned statement

(exhibit P3) and an extra-judicial statement (exhibit P4). Aside from the other evidence of the prosecution witnesses, the prosecution case also rested on exhibits P3 and P4 which the learned trial judge found that they were voluntary and truthful. The totality of the evidence from the prosecution witnesses, however, was that the appellant was residing with the deceased who went missing before he was discovered dead and buried at his farm. Upon being asked about the whereabouts of the deceased by the deceased's wife, one Veronica Adam Haule (PW2) who later on reported the incident of her missing husband to one, Lotary Andrea Nonji, Luhagara Village Executive Officer (PW1), the appellant gave conflicting responses, amongst others, that the deceased had left with a soldier. As PW2 was doubtful of the responses given and became suspicious of the appellant, she reported the incident to PW1. However, when PW1 went with PW2 to the residence where the appellant resided with the deceased, the appellant had already left with his belongings. The matter was eventually reported to the police leading to a search for the appellant which resulted in his arrest on 24th July, 2021 at Tunduru.

The appellant was subsequently transferred to Songea Police Station on 30th July, 2021, where he led a team of police officers which was accompanied with PW1, PW2, and PW4 to Masugulu, Luhagara Village where he had killed the deceased and buried his deceased's body at the deceased's farm. Having exhumed the body in the presence of the police officers as well as PW1, PW2 and PW4, it was identified by his wife (PW2) before it was examined by Dr. Moses Michael Sango (PW4) who discovered that the cause of death was skull fracture due to being hit by a heavy object on the head and tendered a post mortem report (exhibit P2). Meanwhile, the appellant's confessional statements (exhibits P3 and P4) were recorded by F6767 CPL Yohana (PW6) and Jovin Komba (PW8) respectively. Other prosecution witnesses, amongst the police officers, were G 4036 D/CPL Talama (PW3), G 2469 D/CPL Jelado Kasanga Mwanaharakati (PW5), and Insp. Mawazo (PW7). The appellant's defence evidence was, by and large, in the nature of a total denial. Of significance to note, however, is the fact that the appellant described how he was arrested, conveyed to Songea and Luhagara Village within Mbinga District from Tunduru District, located the scene of crime and exhumed the body of the deceased in the deceased's farm situate at Luhagara village.

As the appellant is dissatisfied with both the conviction and sentence, he lodged the instant appeal. Ms. Naomi John Ngoga, learned advocate, who appeared for the appellant at the hearing, with our leave, fronted without objection from Ms. Mwajabu Tengeneza, learned Principal State Attorney who teamed up with Mr. Frank Chonja, and Mr. Issa Issa Chiputula, learned State Attorneys, three grounds of appeal in substitution of those which were in the original memorandum of appeal lodged by the appellant. The three grounds which we have conveniently paraphrased are as follows: (i) The appellant was erroneously convicted based on the evidence of PW4 contrary to section 308 of the Criminal Procedure Act, [ Cap. 20 R.E 2023] (the CPA) (formerly section 289); (ii) the cautioned statement (exhibit P3) was recorded contrary to sections 58 (3) and 51 (1) of the CPA (formerly sections 57 (3) and 50 (1)) which means that it was improperly admitted; (iii) the extra-judicial statement which was objected to for not being voluntarily recorded was improperly admitted without conducting a trial within a trial; and (iv) the prosecution case was not proved beyond reasonable doubt. However, in the course of her submissions, Ms. Ngoga abandoned the first ground. She thus straight away addressed us on the remaining grounds starting with the second, the third and fourth grounds

as the first, second and third grounds respectively. We will, accordingly, approach them as such. The submissions by Ms. Ngoga on the first and second grounds relating to improper admission and reliance on exhibits P3 and P4 raised pertinent questions. One such question was whether the said exhibits were properly admitted into evidence and properly relied upon by the court to found the appellant's conviction. As to exhibit P3, the argument was that exhibit P3 is invalid for it was not only not certified by the appellant in terms of the requirement of section 58 (3) of the CPA, but also recorded out of time contrary to the requirement of section 51 (1) of the CPA. Referring us to the relevant parts of the record of appeal substantiating the merit of the argument, Ms. Tengeneza conceded to the first and second grounds on improper admission of exhibits P3. As to exhibit P4, the argument was that following the raising of the objection as to the admission of the exhibit which was hinged on voluntariness, the trial court was required to conduct a trial within a trial to establish whether the same was voluntarily recorded before admitting such exhibit, instead of wrongfully admitting it without following the mandatory procedure. As was with exhibit P3, Ms. Tengeneza was in agreement with

Ms. Ngoga that the trial court improperly admitted exhibit P4 without conducting a trial within a trial to resolve whether the said exhibit was not voluntarily recorded as complained. In both instances, both learned counsel invited us to expunge the exhibits from the record on account of the procedural irregularities explained herein above. They relied on the cases of Juma Omary v. Republic [2022] TZCA 798; Daniel Matiku v. Republic [2019] TZCA 462; and Juma Omary Kibwana Msabila and Others v. Republic [2025] TZCA 731. They, in the end, urged us to find that the exhibits were improperly admitted and wrongly relied on by the trial court to ground conviction. On our part, we have gone through the above cited authorities in light of the uncontested submissions on improper admission of exhibits P3 and P4 which were, going by the impugned judgment, relied on in grounding the conviction. We have no hesitation in finding merits in the grounds of appeal concerning improper admission of exhibits P3 and P4 as submitted by Ms. Ngoga. We are of that finding because, firstly, exhibit P3 was indeed recorded out of time on 30th July, 2021 contrary to section 51 (1) of the CPA while the appellant was arrested on 24th July, 2021. Not only

that, but also that, the said exhibit, as is evident at page 133 of the record of appeal, was not certified by the appellant by signing contrary to section 58 (3) of the CPA. Regarding exhibit P4, it is on record that its admission was objected to on ground of being taken involuntarily. However, there was no trial within a trial which was conducted before its admission. Because of such procedural irregularity, we are satisfied that the exhibit was not properly admitted by the trial court and ought not to have been relied upon by it. Accordingly, we allow the first and second grounds. Consequently, we expunge exhibits P3 and P4 from the record for the reasons stated herein. The last ground of appeal is on the issue whether the prosecution case was, in view of the remaining evidence after expunging exhibits P3 and P4, proved beyond reasonable doubts. There were rival arguments from Ms. Ngoga and Ms. Tengeneza as each side was firm on its standpoint. Notably, the remaining evidence in relation to which the above issue is to be determined is from PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8. Addressing us on the issue, Ms. Ngoga referred us to the defence of the appellant at pages 89 to 90 of the record of appeal, which she also

reiterated in her eventual rejoinder. She argued that the appellant's testimony is to the effect that he did not lead the police to the discovery of the place where the deceased's body was buried. Since that testimony was not cross-examined by the prosecution, it establishes reasonable doubts to the prosecution case. Strengthening her point of view, the learned counsel invited us to invoke the principle that, failure of a party to cross-examine on an important piece of evidence implies acceptance of that evidence as the truth. She added that, the other piece of evidence, in respect of which the prosecution did not cross-examine and which the above principle should as well apply, was the evidence of the appellant that the deceased was residing with PW2 at Luhagara Village. That evidence, Mr. Ngoga emphasized, was also not cross-examined upon by the prosecution. However, upon being asked to take the Court through the evidence of the prosecution witnesses on whether or not there was insufficient evidence on the record establishing that the appellant led the police to the place where he had buried the body of the deceased, Ms. Ngoga did not have much to submit on other than saying generally that there was no evidence from those witnesses substantiating that the appellant told any of

the witnesses where he buried the body before the deceased's body was discovered buried in the deceased's farm. After all, she argued, as they were heading to the place where the body was subsequently exhumed, the appellant was seated behind the police vehicle which to her is unlikely that he was truly leading the police to the scene of crime. On the other hand, persuading us that the remaining evidence proved the prosecution case beyond reasonable doubts, Ms. Tengeneza endeavoured to take us through the evidence of prosecution witnesses which looked at as whole, she argued, leads to only one irresistible conclusion pointing to the appellant's guilt. She referred us to the evidence of PW1 and PW2 as to how the appellant had escaped with his belongings from the house where he used to reside with the deceased, following PW2's inquiry from him into the deceased's whereabouts. Her hypothesis is seemingly that, as a person who was residing with the deceased immediately before his death, the appellant had a duty to avail information of his disappearance. As such, his failure to do so, and his running away following PW2's inquiry into the deceased's whereabouts is consistent with conclusion pointing to his guilt.

It was also shown to us by Ms. Tengeneza that, following reporting of the disappearance of the deceased at Mbinga Police Station and that the appellant who used to reside with him had escaped, the subsequent endeavour to search for him resulted in his arrest at Tunduru. The arrest, ultimately, led to the discovery of the place at the deceased's farm situate at Luhagara Village where the appellant had buried the deceased's body and where the appellant, having led the police to that place, exhumed the body of the deceased in the presence of the police officers, PW1, PW2 and PW4 as fortified by their testimonies on record. Our attention was specifically drawn to the evidence of PW1, PW2, PW3, PW4, PW5 and PW7 at the respective pages of the record of appeal as to how the appellant had led the police to the scene of crime, how he located the place at the deceased's farm where he buried the dead body of the deceased, how he exhumed the body in the presence of those witnesses, and how the body was identified before it was examined by PW4. That evidence, according to the learned Principal State Attorney, was not at all shaken or contradicted by the defence at the trial. In relation to that evidence, we were also taken through the relevant part of the evidence of PW1 and PW2 in relation to the appellant's

conducts in the discovery of the deceased's body. We were thus shown how PW1 and PW2 accompanied the police to the scene of crime, witnessed how the appellant led the police and identified the place within the deceased's farm where he buried the deceased's body, how he exhumed that body and how the body was examined. It was Ms. Tengeneza's submission that, the evidence as to the appellant's leading role in showing the police where he buried the deceased's body and the subsequent discovery of the body of the deceased after being exhumed by the appellant at the place that he had led the police to is consistent with the appellant's testimony at pages 89 and 90 of the record of appeal and amounted to confession by conducts in terms of section 3 of the Evidence Act, Cap. 6. With the above submissions, the learned Principal State Attorney invited us to find that it is only a person who buried that body or had full knowledge of the specific place within the deceased's farm where the body was buried underground who could have led the police for that discovery, and that such discovery establishes in the end that the appellant was indeed the one who killed the deceased and buried his body in that place.

Consequently, Ms. Tengeneza submitted that the appeal is devoid of merit and urged the Court to dismiss it forthwith. Based on the rival arguments on whether the remaining evidence proves the prosecution case beyond reasonable doubt and in particular, whether the appellant led the police to the discovery of the deceased's body at the deceased's farm, we have examined the record before us by thoroughly examining the testimony of PW1, PW2, PW3, PW4, PW5, and PW7. The testimony of PW6 and PW8 did not detain us much as with the expungement of exhibits P3 and P4 which they recorded respectively, we have no doubt that their evidence is, in the circumstances, worthless. Upon our careful scrutiny of the evidence, we have found that the appellant's arrest at Tunduru on 24th July, 2019 and his conduct afterwards led to the discovery of the deceased's body buried at a place within the deceased's farm situate at Luhagara Village, within Mbinga District in Ruvuma Region, after being conveyed to Songea Police Station from Tunduru by PW7 and later to Luhagara Village, Mbinga District on the same day of 30th July, 2019. It is indeed on record that, the appellant had escaped from PW2 at Luhagara Village where PW2 went to inquire from

him into the whereabouts of the deceased who was, admittedly, residing with the said deceased. The evidence on the leading role of the appellant in taking the police to the scene of crime following his arrest, locating the place within the farm where the body was buried and eventually exhuming that body is clearly apparent in the testimony of PW1 at pages 33, 34, 35 and 36; PW2 at pages 39, 40, 41, and 42; PW3 at pages 43 and 44; PW4 at page 50; and PW5 at page 55. We agree with Ms. Tengeneza that in respect of that evidence, those witnesses were not materially shaken or contradicted in the cross-examination. The evidence of PW2 at pages 39 to 40 of the record of appeal, for example, regarding the appellant leading the police and her to the scene, locating where the body was hidden by him underground and how the appellant exhumed it, has it that: "On 30/07/2021 at 13:00hrs, we were phoned by the police officer who informed us that they have arrested the accused person [the appellant] at Tunduru. We went and saw the accused who told us to go to Masugulu, at Luhagara Village to see the deceased's body...,.After arriving at the scene o f crime the accused explained to us that the deceased's body was in the field.

The police ordered us to sit aside. The police told the accused to show where he had hidden the deceased's body. Then, the accused moved and went to the place where he kept the deceased's body. He dug it up a bit. We along with the police officers saw him digging up on the ground to remove the deceased's body. I recognized the deceased by the clothes he was wearing and his appearance was still intact. He was wearing gumboots, black trousers and a white T-shirt." Similar evidence, which was consistently maintained in the cross- examination, is crystal clear in the testimony of PW1 at pages 33 and 34 of the same record thus: "The accused person was leading us to the crime scene and he took us straight forward to the farm o f Maurus Agustino Mtundu [the deceased]. After arriving at the scene o f crime, the accused showed us where he had buried the body o f the deceased. The accused started to dig on the ground and after digging for a short time, the deceased's body was exposed. The legs appeared first and then the police officers ordered the accused to stop digging and allow other people to take the deceased's body outside the ground where it was buried."

Equally, the medical doctor (PW4) who eventually examined the body also accompanied the police in the discovery of the deceased's body. He witnessed the way the appellant led the police to the scene of crime, located the place where he buried the body and exhumed the body at the scene of crime. He testified at pages 50 to 52 of the record of appeal, among other things, that: "The accused person showed us where he had hidden the deceased's body. The deceased's body was taken out under the sand where the accused stated that he buried it The deceased's relatives were present at the scene o f crime and they recognized the deceased's body.....I examined the body, I filled the Post-Mortem Examination Report...The deceased death seemed to have happened four weeks before the date it was examined...., the cause o f death was a fracture in the skull.....it appeared that the deceased suffered the injury shortly before his death .... " In our considered view, the above evidence corroborates the evidence of the police officers, namely, PW3, PW5 and PW7 which emphatically detailed how the appellant led them to the scene of crime on 30th July, 2019, how he showed them the place at the deceased's farm

where he buried the deceased's body and how he eventually exhumed the body on arrival at the scene of crime. In particular, the evidence of PW5 at pages 55 of the record of appeal which was not as whole subjected to cross-examination by the defence provides thus: '! 'After arriving at Songeaf the accused was questioned and admitted that he has committed the offence o f murder (he killed one Maurus Agustino Mtundu). The accused stated that he used to live with the deceased at Luhagara Village. After hearing that I phoned ASP Insp. Mwamba and told him all what the accused person told me. We started the journey to Kitai, at Luhagara and I was with the accused person. We entered in a police vehicle together with the accused and D/CPL Talama. The accused directed us to go to the village and after arriving at the village ASP Mwamba signed the book at the village executive office. We met the village executive officer. The accused signed the register. They gave me a security job because when we arrived at the scene, there were many people. We went to the area where the accused showed us that he had buried the deceased's body. The deceased's body was found and identified by his relatives and examined by the doctor..."

By and large, the above evidence is consistent with the defence testimony of the appellant at the trial. The most relevant part of that evidence in part reads thus: "On 24h July, 2021, I was going to Tunduru District to work as a watchman. I arrived at Tunduru safely and my brother.... phoned and he asked where I was. I told him ...... he told me that he wanted to come where I was. ... He took motor-cyde and came where I was. After that I was arrested for the offence o f murder and taken to Tunduru Police Station. On 30/07/2021, I was taken to Mbinga Police Station and we passed at Luhagara Village and Masugulu Village. They ordered me to exhume the deceased's body on the ground. Without hesitating, I started exhuming the deceased's body. The villagers helped me to exhume the deceased's body on the ground." Upon being cross-examined by the prosecution, the appellant went further and among other things admitting that he knew the deceased whom he was living with at Luhagara Village as was testified by PW2. Although Ms. Ngoga argued that the evidence of the appellant amounted to denial of taking the leading role in locating where the body was buried, we do not, with respect, find that aspect of the evidence on 17

record. Nevertheless, PW1 and PW2 were clear that it was the appellant who showed where the deceased's body was buried and eventually dug it out in their presence and the presence of police officers. The police officers who were led by the appellant and witnessed how he located the place he buried the body where he eventually exhumed it also testified at the trial as shown above. In view of what we held in Shabani Daudi v. Republic [2004] 77CA 84 regarding assessment of credibility of witnesses by a second appellate court based on coherence of the testimony and its consideration in relation to the evidence of other witnesses including that of the defence, we find nothing on the record raising any reasonable doubts on reliability of the testimony of those witnesses. We are, consequently, in agreement with the finding of the trial judge as to credibility and truthfulness of the witnesses. In the case of Mboje Mawe v. Republic [2011] TZCA 136 where, as is more or less in the present instance, the appellant had made an oral confession and given information leading a team of police officers to discovery parts of the body of the deceased which he eventually exhumed, this Court had this to say among other things:

"It is also important to point out that in giving that confession this appellant was not operating under a state o f fear or threat Finally, the significance o f this confession lies in the fact that he stated where the body parts were buried and eventually on arrival at his house he dug them out himself. In essence therefore, this was ”a confession leading to discovery . " In fact, it will be recalled from the evidence o f PW7 at page 132 o f the record that the first appellant requested all involved to be arrested before he could show the body parts. We are aware that in his defence this appellant said that the body parts were unearthed by the police. With respect, this assertion is not borne out by the evidence on record. PW1 and PW2 Yusufu Ramadhani, who were independent witnesses so to say, were positive that it was the first appellant himself who showed where the body parts were buried and eventually dug them out. As also held by this Court in Hadija Salum and Another v. Republic, Criminal Appeal Nos. 11 and 32 o f 1996 (unreported), the "confession leading to discovery" in this case is sufficient corroborative evidence o f the oral confession before PW1 and PW7. Indeed, if we may add here, the oral confession in the context in which it was also made before PW7 leading to

the discovery o f the body parts is relevant and fell within the ambit o f the provisions o f Section 31 o f the Evidence Act (CAP 6 R.E. 2002) which reads: - 31. When any fact is deposed to as discovered in consequence o f information received from a person accused o f any offence in the custody o f a police officer, so much o f such information ; whether it amounts to a confession or not\ as relates distinctively to the fact thereby discovered, is relevant.'" We gather from the testimony of PW5, which we earlier on reproduced in part herein above, and which was not shaken in the cross- examination, that the appellant orally confessed to PW5 to have killed the deceased before he, eventually, led the police to where he had buried the deceased's body, and whilst there, he ably located the place where he had buried the body before he exhumed it, as was testified by almost all prosecution witnesses. Aside from the said oral confession, which was not at all shaken or undermined in cross-examination, we agree with Ms. Tengeneza that, the appellant's conducts which eventually led the police to the place where the deceased's body was buried within the deceased's farm situate at Luhagara Village within Mbinga District in Ruvuma Region amount to "a confession leading to discovery as was held by this Court in 20

Mboje Mawe v. Republic (supra). Considering the place where the body was found buried and eventually exhumed, it is, indeed, only a person who was either involved in the burying of the body or had knowledge of the place would be in a position to lead the police for such discovery. We are, increasingly, finding it safe to infer from such conducts as corroborating evidence that it is the appellant who killed the deceased. Likewise, on the authority of Pascal Kitigwa v. Republic [1994] T. L. R. 65 where this Court held that that corroborative evidence may be circumstantial and may as well come from the words or conducts of the accused, we think that the fact that the appellant escaped from PW2 at the deceased's house where he was residing with the appellant after PW2 started to question him as to the disappearance of the deceased is as was correctly found and reasoned by the trial judge at pages 113 and 114 of the record of appeal, relevant in corroborating the subsequent appellant's conducts amounting to confession leading to discovery of the deceased's body. In addition to the above aspects of the appellant's conducts prior to his arrest which have corroborative effect, there are also lies that he made to PW2 before he was arrested when PW2 attempted in vain to get

information from him as to the whereabouts of the deceased. Initially, he lied to PW2 that the deceased was in hospital when she called him as is clear at page 38 of the record of appeal. Subsequently, when PW2 met him at the house where he used to live with the deceased at Masugulu, Luhagara Village, the appellant lied to her again. One instance of such subsequent lies was that he had no knowledge of the whereabouts of the deceased, while the other instance of such lies was that the deceased had left with a soldier for her home and would later go to Njombe. Apparently, the other obvious lie on record is one that the appellant made under oath that he was working as a watchman at Tunduru without more which was seemingly a cover-up. See for instances, the cases of Paschal Mwita and Others v. Republic [1993] T. L. R. 295, page 300; and Hamidu Mussa Timotheo and Another v. Republic [1993] T. L. R. 125, page 129 which were heavily relied upon in Msumbuko Matata @ Madata and Others v. Republic [2010] TZCA 331. At this juncture, we have no flicker of doubt in our minds that despite expunging exhibits P3 and P4, the remaining evidence from PW1, PW2, PW3, PW4, PW5, and PW7 who were credible and truthful proves the prosecution case beyond reasonable doubt. We thus find that the remaining ground of appeal is devoid of merit. 22

In the event and for the foregoing reasons, we find no merit in the appeal. Accordingly, we dismiss it in its entirety. DATED at SONGEA this 07th day of October, 2025. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 07th day of October, 2025 in the presence of Mr. Vicent P. Kassale, leaned counsel who holding brief of Ms. Naomi Ngonga, learned counsel for the Appellant and Ms. Agnes A. Simba, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk ified as a true copy of the original, iW j A. S. CHIfllGULU ^<piEPUTY REGISTRAR ^ COURT OF APPEAL