Cheni Vareli vs Republic (Criminal Appeal No. 269 of 2021) [2024] TZCA 1187 (4 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LILA. J.A.. MURUKE. 3.A. And MDEMU, J.A.^ CRIMINAL APPEAL NO. 269 OF 2021 CHENIVARELI........................................................................APPELLANT VERSUS THE REPUBLIC ................................................... .................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) fMansoor. J.1 ) Dated the 18th day of March, 2021 in Criminal Sessions Case No. 88 of 2018 JUDGMENT OF THE COURT •26th November & 4th December, 2024 MURUKE, J.A.: The appellant, Cheni Vareli was charged with and convicted of Murder contrary to section 196 of the Penal Code [Cap 16 R.E. 2002 now R.E. 2022], in Criminal Session Case No. 88 of 2018, before the High Court of Tanzania sitting at Dodoma (the trial Court). According to the particulars of the offence in the charge it was alleged by the prosecution that on 24t h June 2017 at Mapinduzi Village within Bahi District in Dodoma Region, the appellant murdered Leah Masangaa, the deceased.

The appellant denied. the charge following which, in order to establish its case/ the prosecution paraded a total of five witnesses and tendered two documentary evidence namely; the postmortem report of the deceased (exhibit P2) and sketch map of the scene of crime (exhibit PI). The appellant was the only witness for his defence case. The background of the case can be briefly stated as follows: The appellant is the deceased biological son, living together, at Mapinduzi Village in Bahi District. On the fateful day, at around 17.00 hours, the appellant asked for tshs. 5000 from the deceased who replied to him that she did not have the money. The appellant became furious and started verbally insulting the deceased, in the presence of Mahajile Vareli (PW1) his elder brother. The latter left the scene as it was normal for the appellant and deceased to engage into quarrels. As soon as PW1 left the crime scene, and while he was almost 100 meters away, he heard noises from direction of his mother's house.. PW1 decided to go back and saw the appellant thrusting the last blow on the deceased. The appellant left the scene, leaving the deceased dead. PWl cried aloud for help, in which people.gathered at the scene. The appellant then went straight to Blandina Emily Mdemwa (PW2) a Church Leader and confessed to her that he had killed his own mother,

he thus requested PW2 to conduct last mass using spiritual blessed water (maji ya baraka). PW2 also saw the appellant's trouser and shoes stained with blood. Then PW2, together with two young men, went to the scene, in which they found PW1 and the deceased body lying in a pool of blood. PW2 thus called the street leader Forogo Mnyeche Matonya (PW3) and asked him to apprehend the appellant. PW3 apprehended the appellant, brought him back to the scene, then informed the police at Kigwe who went at the scene, covered the deceased body and liaised with police detectives at Bahi Police. The next morning of 25thJune 2017, police from Bahi arrived with-Dr.. Kassimu Kolowa, who examined the body of deceased. The doctor, (PW4) through a postmortem report confirmed that the deceased died of deep cut wounds on her head. The police interviewed witness including PW1, PW2 and PW3 then drew. a sketch map of the scene. The appellant was interrogated at Bahi Police Station but denied completely attacking the.deceased, let alone causing her death. He was then charged for the murder of his own biological mother Leah Masangaa. After a full trial, the learned trial Judge summed up the case to the assessors who all returned a unanimous verdict of guilty. Upon being satisfied that the prosecution account was true, the appellant was convid:ed and sentenced to suffer death by hanging. Aggrieved, the

appellant preferred an appeal to the Court, fronting five grounds of complaint on a Memorandum of Appeal filed on 08th July 2021. Subsequently, through his advocate, another Memorandum of Appeal dated 19th April, 2024 comprising of five grounds was filed. However, for reasons that will be apparent in the course of this judgment, we do not intend to reproduce all the grounds, save for two grounds, that is, .3 and 4, in a Supplementary Memorandum of Appeal filed on 19th April 2024, namely: (3) That, the trial Judge erred in iaw and fact in convicting the . . . appellant in total, disregard o f a vivid variance between the charge and evidence. (4) That, the. trial Judge erred in law and fact to convict the appellant on the serious unproceduralproceedings. On the hearing date, the appellant was represented by M r. Leonard Mwanamonga Haule, learned counsel, whereas, Ms. Ester Kyara, Ms. Patricia Mkina both learned Senior State Attorney assisted by Ms. Bertha Kulwa, learned State Attorney, represented the respondent/Republic. In support of the "fourth' ground above, the appellant's counsel submitted that, the learned trial Judge did not append her signature at the end of the evidence of every prosecution witness and also in the defence evidence of the accused she had recorded. She referred us to pages 40

through 59 of the record of appeal. By not appending signature, matters relating to authenticity; correctness and veracity on all the witness evidence remain questionable and vitiates proceedings. To support his argument, M r. Haule cited to us the cases of Yotham Yona v. Republic (Criminal Appeal No. 13 of 2021) [2023] TZCA 17693 (3 October 2023, TanzUI) and that of John Fortunatus Makoko v. Gph Industries Ltd (Criminal Appeal No. 108 of 2018) [2021] TZCA 723 (3 October 2021, TanzLII) and requested the Court to nullify proceedings, quash conviction, set aside sentence and set the appellant at liberty, because re-trial cannot be ordered on the following reasons: One, the charge is: at variance with the evidence of the prosecution regarding a place at which the offence was committed. The charge at page 30 of the record states that the offence was committed at Sejesa in Mapinduzi Village, Bahi District whereas, PW1, PW2 and PW3 ail testified that, they live at Kigwe Village, Bahi District, in which the offence was committed. The appellant's counsel insisted that, the prosecution case did not prove the charge, thus when given chance for retrial, they will fill in such gaps. Two, the trial Court based the conviction on the evidence of an eye witness PW1, who was not coherent in his evidence, thus not a credible

witness. PW1 testified at page 41 of the record that, the deceased was slashed by "Hengo", while at page 42 he said, the deceased was slashed by a machete. Three, PWl's evidence contradicts with that of other witnesses. While PW1 said at page 42 that, he was present at the crime scene, PW3 said PW1 was not at crime scene, he only heard the deceased raising an alarm (Wangi). . It was M r. Haule's argument that, when a' re-trial is ordered, definitely the prosecution will correct ail these anomalies and that will occasion injustice to the appellant. He thus, pressed for release of the appellant, instead of a re-trial. On the other hand, the learned Senior State Attorney Ms. Patricia Mkina, rightly admitted ;the anomaly by the trial Judge for hot signing after every witness testimony she had recorded. Same has the effect of rendering the eviderice recorded to be nullified as if the witnesses were not heard. The learned Senior State Attorney while admitting the anomaly, suggested that the proceedings be quashed and re-trial be ordered.relying on the case of Yotham Yohjana (supra) cited by the appellant's counsel because the prosecution will not fill gaps as alleged by the appellant's counsel on the following reasons:

One, although there is variance between the charge and evidence by the prosecution witnesses regarding the place in which the murder occurred, such variance is minor and it is curable under section 388 of the CPA. More so, she added, Mapinduzi Village mentioned in the charge is within Kigwe, ward mentioned by PW1, PW2 and PW3. The respondent's counsel urged the Court to take judicial notice that, Mapinduzi Village is within Kigwe, therefore, there is no any variance. Two, PW1 |s a reliable Witness that the trial Court believed his testimony despite minor contradictions. PW2 was the appellant's friend and church leader, whom the appellant went and .confessed to have killed the deceased and asked PW2 to hold a final mass to the deceased. PW2's evidence is corroborated with that of PW3 who met the appellant-trembling and asked for mercy. There cannot be any filling of gaps by the prosecution as alleged by the appellant's counsel and instead, there is enough evidence to ground conviction, once a retrial is ordered, insisted the learned Senior State Attorney. In rejoinder, the appellant's counsel insisted that, self-contradiction of PW1 evidence and with that of other witnesses is not minor. It is the evidence of PWi that grounded conviction. Contradiction and inconsistence will be corrected once a re-trial is ordered, insisted M r. Haule who pressed

for the release- of the appellant upon Court nullifying' the proceedings and judgment of the trial Court. We have considered the submissions by the counsel for both parties, however, we think the fourth ground in the supplementary memorandum of appeal is capable of disposing of this appeal. In the said ground, the main complaint raised by the appellant's counsel and conceded by the learned Senior State Attorney is that, the trial Judge did not sign the evidence of each witness she had recorded. We are in agreement with M r. Haule that, from, page 40 to page 5 9 of the record of appeal, the learned trial Judge did .not append her signature after recording, evidence of PW1, PW2, PW .3/ PW4, PW5 and DW1. The authenticity of the testimonies of the said witnesses together with the veracity of the trial court's, proceedings is questionable. We find that the said omission vitiates the entire trial court's proceedings and thus, they are a nullity. The issue, of not appending signature after recording witness evidence was considered by the Court in the case of Yohana Mussa Makubi & Another v. Republic (Criminal Appeal No.556 of 2015) [2018] TZCA 80 (10 July 2018, TanzLII). In that case, having been faced with an akin situation the Court, after revisiting the provisions of section 356 of

the Indian Criminal Procedure Code which is in pari materia with section 210 (l)(a) of the -CPA, the Court observed that: "In light o f what the Court said in W ALII ABDALLA KIBW ITA's and the meaning o f what is authentic, can it be safely vouched that die evidence recorded by the trial Judge without appending her signature made the proceedings legally valid? The answer is in the negative. We are fortified in that account because, in the absence o f signature o f trial Judge at the end o f testimony o f every witness: firstly, it is impossible to authenticate who took down such evidence. Secondly, if the maker is unknown then , ' the authenticity of such evidence is put to question as raised by the appellants' counsel. Thirdly, if the authenticity is questionable^ the genuineness o f such proceedings is not established and thus; fourthly, such evidence does not constitute part o f the record o f trial and the record before us." Then, the.Court went on to state that:- s R '

• j t "We are thus, satisfied that, failure by theJudge to append his/her signature after taking down the evidence o f every witness is an incurable irregularity in die proper administration o f criminal justice in this country. The rationale for the rule is

fairly apparent as it is geared to ensure that the trial proceedings -are authentic and not tainted. Besides, this emulates the spirit contained in section 210 (1) (a) o f the CPA and we find no doubt in taking inspiration there from. In view o f the stated omission the trial proceedings o f the High Court were indeed vitiated and are a nullity ...' [Emphasis added]. The principle .was also emphasized in the case of Sabasaba Enos @ Joseph v. Republic (Criminal Appeal No. 411 of 2017) [2021]_TZCA 142: (29 April 2021: TanzLII) where the Court held that: ‘ "Even in this case, going by the above cited case, we are, indeed, satisfied that the trial Judge did not append her signature particularly alter PW1, PW2, PW4, PW5 and DW1 had concluded, their . testimonies. Guided by the above cited authority, we are o f the view that this does not offer assurance that the trial proceedings are authentic and not tainted. It is obvious that it amounted to an incurable, irregularity as it cannot be cured by section 388 o f the CPA as the learned counsel for the appellant seemed to suggests In the result, we find that the- omission vitiated the entire proceedings o f the trial court and thus they are a nullity".

On the same vain, in the case of.Mhajiri Uladi & Another v. Republic (Criminal Appeal No. 234 'of- 2020) [2021] TZCA 313 (16 July 2021, TanzUI) Court held that; "As demonstrated in this appeal, the testimonies o f aii witnesses were not signed by the learned trial Judge not only the authenticity o f the testimonies o f the witnesses but also the veracity o f the trial court record itself is questionable . . . . In absence o f the signature o f the person who recorded the evidence, it cannot be said with certainty that the what is contained in the record is the true account o f the evidence o f the witness since the recorder o f such evidence is unknown. On account o f such omission, die entire trial court proceedings recorded after the conduct o f the preliminary hearing are vitiated because they are not authentic". Indeed, we are satisfied that the trial judge did' not append her

• '* * j . • signature particularly after PW1, PW2, PW3, PW4, PW5 and DW1, had concluded their- testimonies. We are of the view that this does not offer assurance that the trial proceedings are authentic and not tainted. It is obvious that it amounted to an incurable irregularity as it cannot be cured by section 388 of the CPA. In the result, we find that the omission vitiated

the entire proceedings of the trial court and thus they are a nullity and .cannot be left to stand on the record of appeal. The remaining issue is whether retrial can be ordered. On our part, having scrutinized the factual setting in the record of appeal, we agree with the submission by M r. Haule, that, there are lapses in the prosecution case, namely: One, the charge which is the foundation of the case was materially at variance with the evidence adduced by the prosecution regarding the place in which the-offence of murder was allegedly committed by the appellant. Legally,.the place in which the offence took place mentioned in the charge has to'he proved by the prosecution. Indeed, the defense of the accused depend on the particulars of the offence in the charge. Variance between the charge and. the evidence renders the charge not proved beyond reasonable doubt. The charge as seen at page 30 of the record reveals that the offence was committed at Sejesa Mapinduzi Village in Bahi District, whereas PW1, PW2 and PW3 all testified that, they live at Kigwe Village with -the appellant and deceased where the offence was committed. In the case of Salim Abdallah Maganga v. Republic (Criminal Appeal No..285,of. 2020) [2023] TZCA 17680 (2 October 2023, TanzLII) being confronted with a similar issue, the Court stated:

"In effect,, therefore, the piece o f evidence proving an incident which occurred at Uwanja wa Ndege, could not be relevant in proving an incident which occurred at a place called Kichochoro. The place o f commission o f the offence being crucial in establishing the offence, we agree with die learned Principal State Attorney that, the variance in that respect between the charge and evidence renders the charge notproved beyond reasonable doubt" In a similar situation, in the case of Noel Gurth a.k.a ii Bainth & Another v. Republic, Criminal Appeal No. 339 of 2013 (unreported) the Court observed as follows:’ "... where there is a variation in the place where the alleged armed robbery took, place, then the charge must be amended forthwith. I f no amendment is effected the charge will remain unproved and the accused shall be entitled to an .acquittal as a,matter o f right Short o f that a failure o fjustice will occur ." On the same vain, in the case of Issa Mwanjiku @ White v. Republic (Criminal Appealv $Jo. 175 of 2018). [2020],TZCA 1801 (6 October 2020, TanzLII), the evidence led by the victim of the offence as regards the stolen properties varied with those which were mentioned in the charge, yet the prosecution did not apply to amend the charge. Having

■ . i considered that situation, the Court had this to say on the effect of that omission to the prosecution evidence: We note that, other items mentioned by PW1 to be among those stolen like ignition switches o f tractor and Pajero were not indicated in the charge sheet In the prevailing circumstances o f the case, we find that the prosecution evidence is noi compatible with the particulars in the charge sheet to prove the charge to the required standard. "[Emphasis added.] Considering that ail three prosecution witnesses; PW1, PW2 and PW3 stated the respective area in which the appellant committed the offence is at Kigwe Village while the charge states that it is at Sejesa Mapinduzi Village, therefore there is variance between the charge and prosecution witness. Thus, ground four has merits. The appellant's counsel alleged that the prosecution witnesses contradicted each other on the evidence, which raises doubts to the benefit of the appellant. In reply the learned Senior State Attorney briefly I . " ” '3 j ' submitted that, it is true': {hat the prosecution-witnesses, namely, PW1, PW2 and PW3 contradicted each other. However, she maintained that the contradiction is,minor and it can usually happen to the witnesses.:Thus, despite the contradictions, the prosecution evidence has not been watered

down because PW2 explained how the appellant, who used to be her friend, confessed to have killed his mother. The evidence of PW2 is corroborated by that of PW3 who found the appellant trembling and asked for mercy before he apprehended him. To the learned State Attorney, the evidence of PW1, PW2 and PW3 are enough to ground conviction once re trial is ordered. To resolve the complaint, we deem it necessary to restate the principle of the law that, every witness who is competent in terms of the provisions of section 127 (i) of the Evidence Act, is entitled to be believed as a credible and reliable witness. Thus, he must be believed, his evidence accepted, unless there are good and cogent reasons for not believing a witness. This.position was also emphasized by the Court .in Goodluck Kyando v. RepubBic [2006] T. L. R. 363. It is also worth noting that there are no rules of thumb in determining the credibility, truthfulness or reliability of a witness, however, the trial court findings as to the credibility of witnesses is usually binding on an appeal court unless there are'circumstances bn the record of proceedings which call for reassessment of their credibility. The above notwithstanding, the monopoly of the trial court in assessing the credibility of the witness, is lihiited to the etfent of the demeanour only. But, there

are other ways in which the credibility of- a witness can also be assessed; one> by assessing the-coherency of the testimony of the. witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses. While we are in agreement with the learned Senior State Attorney that there exist contradictions between the prosecution witnesses, we do not agree with her that>,the said contradictions are so minor. To the contrary, they are serious and go to the root of the case by affecting the credibility and reliability of the prosecution-witnesses. We hold this view because: One,. PW1 testified that,.-he saw the appellant ..slashing deceased with Hengo at.page 41 of. the record-while at page 42 he said it is machete. Two, PW1 evidence is that he was present at the scene of crime when .the appellant was slashing ,the deceased while PW3 said PW1 was not at the crime scene. The Court in Mbhamed Said Matula v. Republic [1995] TLR. 3, stated that: " Where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resoive them where possible; else the court has to decide whether the ' inconsistencies and

contradictions are only minor, or whether they go to the root o f the matter!' See also, Dickson Elia Nsamba Shapwata & Another v. Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008, TanzUI), Toyidoto s/o Kosima v. Republic (Criminal Appeal No. 525 of 2021) [2023] TZCA 17305 (5 June 2023, TanzUI), and Frank Maganga v. Republic (Criminal Appeal 93 of 2018) [2021] TZCA 105 (13 April 2021, TanzUI). As intimated above, the leaned Senior State Attorney Ms. Mkina who admitted that there were contradictions, but she termed them to be minor. For our part, we decline the learned Senior State Attorney's assertion and find that the contradictions are serious and raises doubts. In the end, like the learned appellant's counsel, we don't think it is proper and in the interest of justice to order a re-trial on account of lapses on the prosecution evidence available on the record of appeal. An order of re-trial will definitely pave way for the prosecution to fill up the obtained gaps which will therefore occasion an injustice to the appellant. That stance was lucidly stated in the decision of the defunct East African Court of Appeal in the case of Fatehali Manji v. R, [1966] EACA 343 as follows:-

"In general, a retrial will be ordered only when the original trial was illegal or defective. It will be not ordered where the conviction is set aside because o f insufficiency o f evidence or for purpose o f enabling the prosecution to fill up the gaps in its, evidence at the first trial. Even where a conviction vitiated by a mistake o f the trial court for which the prosecution is not to blame; it does not necessarily follow that a retrial shall be ordered; each case must depend on its own facts and circumstances and an order o fretrial should only be made wherethe interests o f justice require. n (Emphasis added). Also, in the case of Ndaro Sumuni Mabuse @ Amiri Ronaldo & Others vs Republic (Criminal Appeal No. 117 of 2023) [2023] TZCA 17761 (18 October 2023, TANZLII) when faced with the same question of whether it was proper to order retrial the court stated that; " ...retrial is meant, for correcting the omissions caused or experienced during trial and not otherwise. Therefore, if there is a possibility that the intended retrial will permit the prosecution to perfect its flawed case, the Court has in most cases refrained from doing that. The rationale behind is if the availed opportunity will allow the prosecution to reorganize its case and filing the gaps then there is 18

a possibility or likelihood o f causing injustice to the accused person and that is not what courts who are temple o fjustice are for." In the result, for the foregoing reasons, we allow the appeal in the basis of ground four of the additional grounds of appeal. Thus, quash the conviction and set aside the sentence. Consequently, we order the immediate release of the appellant unless he is otherwise held for another lawful cause. DATED at DODOMA this 3r d day of December, 2024. S. A. LILA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 4th day of December, 2024 in the presence of M r. Fred Kalonga holding brief for M r. Leonard M. Haule, learned counsel for the appellant, and Ms. Mwilongo, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of f U rt ► 'i i r"i "i I