Shaibu Putika & Another vs Republic (Criminal Appeal No. 518 of 2021) [2024] TZCA 1230 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT I RING A (CORAM: MKUYE. 3.A., MGEYEKWA. 3.A. And NGWEMBE, 3.A/1 CRIMINAL APPEAL NO. 518 OF 2021 SHAIBU PUTIKA . ........ . .................... .. ......... ........ . ......... . 1 st APPELLANT CHRISTOPHER FRANK @ KAHEWANGA . ............................ . 2 nd APPELLANT VERSUS THE REPUBLIC ........... . ............. . ................. . ......... . .......... ....... . RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) fMlvambina, J,V dated the 21st day of October, 2021 in Criminal Sessions No. 56 of 2017 JUDGMENT OF THE COURT 26th November & 10th December; 2024 MGEYEKWA, J.A:. The two appellants namely Shaibu Putika and Christopher Frank @ Kahewanga were jointly charged with the murder of Chansi Putika (deceased) at Peruhanda Village within the District and Region of Njombe on 15th May, 2016. The appellants pleaded not guilty to the charge. However, after a full trial, they were convicted and condemned to death by the High Court sitting at Iringa (Mlyambina, !)■

The prosecution fielded four witnesses to prove the charge: a medical doctor, Robert Kinyamagoha .(PW1), Bronasius Mwalongo, a Ward Executive Officer (PW2), G. 8025 D/Sgt Thobias (PW3) and H. 2393 D/Sgt Shaban (FW4). It also tendered four documentary evidence/ namely; the post-mortem examination report (exhibit PI), a sketch map (exhibit P3), cautioned statement of the first appellant (exhibit P2) and the cautioned statement of the second appellant (exhibit P4). The evidence on the record of appeal shows that: the deceased who is a young brother of the first appellant was a village mate of the appellants. The circumstances surrounding the deceased's death are still a mystery. There was no eye witness to the murder. On 17th May, 2016, Marietha Putika, the deceased's mother who was in Dar es Salaam was informed by the first appellant that the deceased had been missing since 15th May, 2016. On 16th May, 2016 around 11:30 hours, OC CID, Hassan Okello while at his office at Njom.be police station, received information from the Peruhanda Village leader that a person was found dead and his body was lying along the Sharongono river. The OC CID instructed Assistant Inspector Magreth Mbawa who headed to the scene of crime accompanied by other police officers including PW3 and PW4, who found the deceased body laid down along a river.

The deceased's body was collected by the police and taken to Kibena Hospital where an autopsy was carried out by PW l. The postmortem examination report, which was admitted in court as exhibit PI, indicated that the deceased’s death was due to internal bleeding and anemia. PW3 testified that the first appellant was arrested on 27th May, 2016 at National Housing Street around 11:00 hours, on the same day, he interrogated the first appellant and recorded a cautioned statement starting from noon hours to 14:00 hours, into which the first appellant allegedly confessed that, he together with the second appellant murdered Chansi Putika. The cautioned statement was adduced into evidence (exhibit P2) but, as we shall demonstrate at a later stage of our judgment, the cautioned statement was repudiated. Bonasius Mwalongo (PW2), the Ward Executive Officer (the WEO) recorded the extra-judicial statement of both appellants. The appellants repudiated the statements but after a trial within trial was conducted, the court found that the extra-judicial statements were recorded contrary to the law, hence the same were not admitted, PW4 testified that on 3rd June, 2016, the second appellant made a cautioned statement in which he confessed involvement in the killing of the

deceased person. The cautioned statement was adduced into evidence (exhibit P4) and admitted without objection from the 2n d appellant. The appellants protested their innocence and fielded their defence. The narration of the first appellant is that the deceased is his young brother, they noted that the deceased went missing on 16th May, 2016. On 19th May, 2016, he was at Njombe police station where he was informed by the police officer that Chansi Putika was found dead. According to the first appellant, the deceased was suffering from Psychiatric, he is also suffering from Psychiatric, and in 2008, he was treated at Mirembe Hospital. To substantiate his defence, he tendered a hospital discharge certificate which was admitted as exhibit D l. On 9th June, 2016, he was arraigned before the court. He denied the allegations that he hired the second appellant who is his cousin to murder his young brother. Marietha Muhaiki Putika (DW2), the deceased mother, testified that her children; the late Suzana Putika and deceased were suffering from Psychiatric syndromes, as well as the first appellant, he was treated at Kibena Hospital and then transferred to Mirembe Hospital. To substantiate her testimony, she tendered medical certificates of deceased and the late Suzana Putika which were adduced into evidence (exhibit D2 collectively).

The second appellant, on his part, narrated that the deceased and the second appellant are his relatives, and was informed by his niece, one Upendo Paulo that, the deceased was found dead at Peruhanda Village, and the cause of death was unknown. He narrated that he was arrested by PW4 on 1st June, 2016, at Ngaranga Village around 15: 00 hours, but the reason for his arrest was not explained. Upon arriving at Njombe police station, he met the first appellant, who informed him that he was suspected of murdering the deceased. He also stated that he was forced to sign the cautioned statement. Finally, the appellants were taken to court on 9th June, 2016. Based on the entire body of evidence, the learned trial Judge was fully satisfied that the appellants were responsible for the killing of the deceased and that they did so with malice aforethought. In reaching to this conclusion, the learned Judge relied entirely on the cautioned statements (exhibits P2 and P4), which were, notably, the only evidence presented by the prosecution to support its accusation. Having so found, the trial court proceeded to convict and sentence the appellants as previously indicated. On the whole of the evidence, the three assessors who sat with the trial Judge were unanimous in finding the appellants guilty. The learned Judge conceded with the assessors' views. It is, however, discernible from 5

the Judgment that the learned Judge almost entirely relied upon the cautioned statements in convicting the appellants. As already intimated, upon conviction, the appellants were sentenced to death. In their present quest, the appellants are aggrieved by both the conviction and sentence, and preferred the instant appeal and jointly filed a memorandum of appeal containing six grounds of appeal. Then later, on 30th July, 2023, they filed four additional grounds of appeal. Again, on 23rd May, 2024 they filed five supplementary grounds of appeal constituting a total of fifteen grievances. However, before hearing the appeal, Mr. Ambindwile withdrew his intention to argue the grounds of appeal contained in the supplementary memorandum of appeal filed. He opted to argue the second ground on substantive and ground number three on the additional grounds of appeal and abandoned the remaining grounds of appeal. Therefore, we will produce only the two grounds of appeal. The said grounds are to the effect that:

1. That, the trial court erred in law in convicting and sentencing the appeiiant without taking into account that the exhibits P2 and P4 were admitted against the law
2. That the triai court erred in convicting the appellants while the cautioned statements were recorded out o f time as the first

appellant was arrested on 22”* February, 2016 as testified during trial within trial and the prosecution failed to summon material witnesses such as the arresting officer who could prove when the first appellant was arrested. At the hearing of the appeal, Messers. Cosmas Kishamawe and Moses Ambindwile, learned advocates entered appearance representing the first and second appellants respectively, whereas Mr. Shaban Mwegole, learned Principal State Attorney represented the respondent Republic. At the outset, the learned Principal State Attorney supported the appeal, and opted to consolidate and argue the two grounds of appeal together. We shall therefore determine the grounds of appeal, in the same manner proposed by determining the two grounds conjointly. On taking the floor, Mr. Ambindwile contended that the trial court misdirected itself to convict the appellants based on the cautioned statements which were recorded beyond four hours contrary to section 50 (1) (a) of the Criminal Procedure Act (the CPA). Elaborating, he argued that the first appellant was arrested on 22n d May, 2016 and the cautioned statement was recorded on 27t { 1 May, 2016.

In his further submission, he argued that the variance on the date of arrest led to trial within trial to ascertain the day when the first appellant was arrested and the validity o f the cautioned statement. He added that, during trial, PW3 testified that he was assigned to record the first appellant's cautioned statement on 27th May, 2016 but he did not state when the first appellant was arrested, He faulted the prosecution for failure to call the arresting police officer and Assistant Inspector Mbawa who was an overseer of the investigation who could tell the trial court when the first appellant was arrested. It was Mr. Ambindwile's contention that, failure for the prosecution to call material witnesses to prove the case against the appellants, entitles the court to draw an inference adverse to the prosecution, in the circumstances, the first appellant ought to be believed that he was arrested on 22n d May, 2016. The learned advocate for the first appellant continued to argue that the second appellant was arrested by PW4 on 1st June, 2016 at 15:00 hours and the prosecution did not cross-examine the second appellant on arresting date. He therefore, contended that, failure to cross-examine a witness on that issue meant the date of arrest mentioned by the second appellant went unchallenged.

In his further submission, Mr. Am bind wile argued that the record of appeal reveals that when the cautioned statement was tendered, the second appellant did not object, however, he took a swipe and argued that, the cautioned statement Is invalid, even where the same was not objected to at the time of its admission, The teamed counsel for the first appellant based his argument on the decision of MajaHwa Ernest v. Republic, Criminal Appeal No. 465 of 2022 [2024] TZCA 313 (7 May 2024 TanzLII). He spiritedly contended that, had the trial court taken trouble to resolve the inconsistency on the date when the second appellant was arrested, it would have decided otherwise. Reinforcing his submission, the learned counsel referred us to the case of Majaliwa Ernest (supra) and urged us to expunge the cautioned statements from the court record, and find that the remaining evidence on record cannot ground conviction against the appellants. Mr. Kishamawe was equally forceful, he subscribed to the submission made by Mr. Ambindwile and asserted that the appellants were convicted based on a confession in the form of a cautioned statement which the first appellant repudiated. To support his submission, he referred the Court to pages 181 to 188 of the record of appeal. He elaborated that, the first appellant objected to the admission of the cautioned statement, implying

that it was a repudiated confession. It was Mr. Kishamawe contention that, the trial court cannot base a conviction on a retracted confession. To fortify his argument, the learned advocate for the second appellant referred us to the case of Nuru Venevas v. Republic, Criminal Appeal No. 431 of 2021 [2023] T7CA 17300 (2 June 2023 TanzLII). He argued that a repudiated confession may support a conviction only if it is corroborated by independent evidence. In his further submission, Mr. Kishamawe argued that Assistant Inspector Mbawa was a material witness, but she was not summoned to testify in court and no reason was given as to why she was not called to testify. He buttressed his contention on this ground by referring us to our previous reasoning in DPP v. Juma Chuwa Abdallah & Another, Criminal Appeal No. 85 of 2018 [2023] TZCA 17800 (2 November 2013 TanzLII), and invited us to discount the remaining prosecution evidence for lacking corroboration. On the strength of his submission, Mr. Kishamawe beckoned upon us to allow the appeal and set the appellants free. For his part, Mr. Mwegole supported the appeal. He fully adopted the learned counsel submissions and opted to argue the two grounds conjointly. He prefaced by submitting that, the first and second appellant's 10

cautioned statement (exhibits P2 and P4 respectively) build the case of the prosecution against the appellant. However, the evidence of such statement was invalid since time to record the cautioned statements as stipulated under section 50 (1.) (a) of the CPA which is four hours after arresting the accused person was not complied with. He, therefore, agreed with the appellants' counsel that the evidence was improperly acted upon to convict them. The learned Principal State Attorney elaborated that, the first appellant's cautioned statement was recorded on 27th May, 2016 and PW3 alleged that he was arrested on the material day, while he was not certain if the first appellant was arrested on 27th May, 2016. To fortify his submission, he referred us to page 68 of the record of appeal and submitted that it was unclear if the first appellant was arrested on 27th May, 2016. He continued to submit that failure to call the arresting police officer who arrested the first appellant raises doubts as it is difficult to ascertain if the cautioned statement of the first appellant was recorded within time. He agreed with the learned counsel that there was a need to summon Assistant Inspector Mbawa who supervised the whole investigation process

starting from when they found the deceased's body until when the cautioned statement was recorded. In his further submission, Mr. Mwegoie submitted that, exhibit P4 was admitted without being objected to by the second .appellant. However, he took a swipe and submitted that, it is glaring from the trial court proceedings that exhibit P4 was recorded on 3rd June, 2016, and the incident occurred on 27th May, 2016. In his further submission, he argued that worse still, PW4 was not sure of the exact date when the second appellant was arrested. Therefore, he submitted that this raises doubts about whether the second appellant's cautioned statement was recorded within the required time, as the appellant testified that he was arrested on 1st June, 2016, and the uncertainty was not cleared by the prosecution by failure to call the arresting officers who arrested the second appellant. Mr. Mwegoie turned his submission to the first appellant repudiated confession. He faulted the trial Judge for relying on repudiated confession to convict the appellants while there was no independent evidence to corroborate the repudiated cautioned statement. The learned Principal State Attorney argued that, since the cautioned statements were the basis of the appellants' conviction and were taken outside the required time frame, they should be expunged from the court record. He added that, 12

once the cautioned statements are expunged, the foundation for the murder charge collapses, as there is no other credible evidence to support the convictions against the appellants. The main complaint in respect of both appellants is related to their respective cautioned statements. Their complaint is in twofold, one, that the cautioned statements were taken in contravention of section 50 (1) (a) of the CPA, and two, that, the trial court wrongly acted on the cautioned statements which were retracted and repudiated. As this is a first appeal, the Court is entitled to re-appraise and re evaluate all the evidence on record and draw its own inferences of fact, as outlined in rule 36 (1) of the Tanzania Court of Appeal Rules, 2009, and supported by case law. See for instance D.R. Pandya v. Republic [1957] EA 336, Salum Mhando v. Republic [1981] T.L.R 157 and Demeritus John @ Kajuli & 3 Others v. Republic, Criminal Appeal No. 155 of 2013 (unreported). It appears to us that, in order to address the issue raised by the appellant regarding the cautioned statements, it is necessary to revisit the record. The proceedings of the trial court dated 7th July, 2021 show that, PW4 produced the first appellant's cautioned statement and when he

sought to tender it, the first appellant's counsel objected to its production and admission in evidence and raised three points of objections; one, it was taken involuntarily contrary to section 27 (3) of the Evidence Act Cap. 6 (EA). Two, it was recorded beyond the first four hours contrary to section 50 (1) (a) of the CPA; and three, it was recorded contrary to section 58 (2) and (6) (a) of the CPA. Following the raised objections, the trial Judge determined the second and third objections and delivered a Ruling on 8th October, 2021. Regarding the issue of voluntariness, the trial Judge conducted a trial within trial to determine the admissibility of the first appellant's cautioned statement. In relation to the second and third objections, the first appellant's advocate submitted that, although PW3 who was not an arresting officer testified that the first appellant was arrested on 27th May, 2016, the first appellant testified to have been arrested on 22n d May, 2016 and yet the cautioned statement was recorded on 27th May, 2016, thus, it was recorded out of time. On the other hand, the prosecution submitted that the first appellant's cautioned statement was recorded within four hours from the time he was arrested as testified by PW3 that he was arrested on 27th May,

2016. In his ruling, the trial Judge found that the first appellant was arrested on 27th May, 2016 at 11:00 hours and the cautioned statement was recorded on the same date at 12: 12 hours, hence section 50 (1) (a) was complied with. However, in our view, the trial Judge misdirected himself by basing his findings on PW3's evidence, as he was not the arresting officer. He could not testify with certainty as to when the first appellant was arrested. On his part, the second appellant testified that he was arrested on 1st June, 2016 and PW4 recorded his cautioned statement on 3rd June, 2016. It is true that the second appellant did not object to the admission of his cautioned statement. However, as Mr. Ambindwile correctly submitted, failure to object to the admission of a cautioned statement does not automatically render the statement valid. The basic period available for interviewing a person who is in police custody is provided for under sections 50 and 51 of the CPA. For ease of reference, we reproduce section 50 of the CPA hereunder: "50. Periods available for interviewing persons (1) For the purpose o f this Act, the period available for interviewing a person who is in restraint in respect o f an offence is -

(a) subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence . . . " [Emphasis added] In the present case, the evidence on record show that, the first appellant's cautioned statement (exhibit P2) was recorded on 27th May, 2016 at 12:00 hours and the second appellant's statement (exhibit P4) was recorded on 3rd June, 2016. It is glaring from the trial court proceedings that the first appellant testified to the effect that he was arrested on 22n d May, 2016 and the second appellant was arrested on 1st June, 2016. However, the arresting officers of the respective appellants were not called to testify if they were arrested on those dates. Failure by the prosecution to call the arresting officer who was a material witness entitles the Court to draw an adverse inference that had the prosecution called the arresting officer, he could contradict PW3's evidence and testify that the first appellant was arrested on 22n d May, 2016. As regards the second appellant, as mentioned earlier, the evidence on record show that, he was arrested on 1st June, 2016, and PW4 recorded

his statement on 3rd June, 2016 making the cautioned statement invalid for being recorded outside the required time frame. Yet, the arresting officer was not called to testify on the date the second appellant was arrested which may entitle the court to draw adverse inference against the prosecution. See: Aziz Abdalla v. Republic [1991] TLR 71 and Boniface Kundakira Tarimo v. Republic, Criminal Appeal No. 351 of 2008) [2011] TZCA 194 (4 October 20HTanzLII). When considering a similar matter, the Court in the latter case stated that: " ...It is thus now settled that, where a witness who is in a better position to explain some missing links in the party's case, is not called without any sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only a permissible one." In our considered view, we find and hold that, it was necessary for the arresting police officers and Assistant Inspector Mbawa to be called as witnesses as rightly submitted by learned counsel. We say so because, we think, the arresting officers and Assistant Inspector Mbawa who led the investigation were material witnesses who could have cleared dust about the dates and time of the appellants' arrest, to justify whether or not the

cautioned statements were recorded within time. Therefore, the prosecution was duty-bound to call them as witnesses. For the aforesaid findings, we find that, the evidence on record renders the cautioned statements invalid for being recorded outside the required time frame. We are increasingly of that view because, as it i's, basing on the appellants evidence it is true that both cautioned statements (exhibits P2 and P4) were recorded in contravention of section 50 (1) (a) of the CPA requiring the cautioned statement to be taken within four hours from the time of restraint. Moreover, in the present case, there is no proof that the period available for interviewing the appellant beyond the period provided under section 50 was ever lawfully extended by law provided. This Court has stated in several decisions that a statement recorded in contravention of section 50 of the CPA is inadmissible. See, for instance, Joseph Komba and 3 Others v. Republic, Criminal Appeal No. 95 of 2006 (unreported) and Roland Thomas @ Mwangamba v. Republic, Criminal Appeal No. 308 of 2007 [2010] TZCA 134 (31 August TanzLII). Since the exhibits P2 and P4 were taken out of time, we thus outrightly expunge them.

We now turn to the issue of confession evidence. The appellants have challenged the first appellant's confessional statement contending that, the trial court wrongly acted on such statement as it was retracted or repudiated by the first appellant, It is not in dispute that the appellants in their defence, denied their cautioned statements, and the first appellant continued to deny the cautioned statement at trial. It is trite law that where an accused person retracts his confession the court can convict on the uncorroborated confession provided that it warns itself of the danger of acting on such confession and if it is fully satisfied that the confession cannot but be true. See: Hatibu Ghandhi and Others v. Republic (1996) TLR 12. However, as a matter of practice a retracted confession requires corroboration of independent evidence. In All Salehe Msutu v. Republic [1980] TLR 1, the Court held: "It has long been an established rule o f practice in East Africa, including this country, that repudiated confessionr though as a matter of law may support a conviction, generally requires as a matter o f prudence corroboration as is normally the case where a confession is retracted." We are mindful that in terms of section 33 (2) of EA, a conviction of an accused person shall not be based solely on a confession by a co

accused. See also the cases of Muhidln Mohamed Lila @ Emolo and Others v. Republic, Criminal Appeal No. 443 of 2015 [2018] TZCA 269 (31 May 2018 TanzUI) and Morris Agunda & 2 Others v. Republic [2003] T.L.R 449. In that latter case, the Court held: "Evidence which itself requires corroboration could not corroborate the retracted or repudiated confession of the co-appellant" In the present case, the trial Judge warned himself of the danger of acting on repudiated confession, unfortunately, he misled himself and concluded that the repudiated first appellant's evidence corroborated the second appellant's cautioned statement. With respect, we find that the learned Judge misdirected himself, we say so because, the first appellant's cautioned statement which needed to be corroborated could not corroborate the evidence of the second appellant that also required corroboration, Similarly, the testimonies of PW3 and PW4, which claim the appellants confessed to committing the offense, cannot be relied upon to corroborate the first appellant's retracted confession. This is because the appellants denied ever making such confessions. Given the circumstances, we find that these two grounds are merited. Following the expungement of cautioned statements (exhibit P2

and P4) which were relied upon to sustain the conviction, we find that the prosecution's case lacks compelling evidence to implicate the appellants. For the aforesaid reasons, we find that the appeal is meritorious and we allow it. Consequently, we quash the appellants' convictions and set aside the sentences thereof. We order their release from prison forthwith unless they are otherwise held for other lawful reason (s). DATED at IRINGA this 9th day of December, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 10th day of December, 2024 in the presence of the 1st and 2n d Appellants in person and Mr. Sauli Makori, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.