Julius Patson Mwampashi vs Republic (Criminal Appeal No. 537 of 2021) [2024] TZCA 1175 (3 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MWANDAMBO. J.A., KAIRO, J.A. And. ISSA. J.A.^ 1 CRIMINAL APPEAL NO. 537 OF 2021 JULIUS PATSON MWAMPASHI..........................................................APPELLANT VERSUS THE REPU BLIC ............................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Mbeya) (Mbaqwa, J.^ dated the 4th day of October, 2022 in Criminal Session Case No. 36 of 2017 JUDGMENT OF THE COURT 26th November & 3rd December, 2024 KAIRO, J.A,: The appellant, JULIUS PATSON MWAMPASHI was charged before the High Court of Tanzania at Mbeya with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2019 (the Penal Code). The particulars of offence were that, on 11th November, 2016 at Tunduma in Momba District, the appellant murdered one Zabron George Mkeya. He pleaded not guilty to the charge, and the case went to a full trial. To prove their case, the prosecution side paraded the following

seven witnesse; Lillian Nyandidi (PW1); the wife of the deceased, Benard Chisunga (PW2); an elder brother of Dickson Chisunga who also died at the scene of crime, Tumaini George Mwakasoka (PW3); a wife of the late Dickson Chisunga, No. H8763 DC Julius (PW4); a police officer who submitted a mobile phone recovered at the scene of crime to Forensic Laboratory Bureau in Dar es Salaam and later collected it with a report, E8752 SSGT Mika (PW5); the first police officer to arrive at the scene of crime and collected a mobile phone make MTN from one of the pockets of the trouser worn by the late Dickson Chisunga, F6960 D/CPL Bashiri (PW6); a police officer in Cyber Crime Unit Songwe who through the mobile phone collected at the scene of crime, traced and arrested the appellant, and Baraka Kusaya Musabila (PW7); Vodacom Sales Manager at Mbeya who extracted the printouts of mobile phone transaction report from Vodacom system. The prosecution also tendered 6 exhibits. A postmortem examination report of the deceased and a sketch map of the scene of crime were tendered during the preliminary hearing and admitted as exhibits PI and P2 respectively. The other four exhibits were admitted during the trial as follows: a request letter for Forensic investigation and its investigation report from Forensic Laboratory Bureau in Dar es Salaam (Exh.Pl), a letter to Vodacom requesting for printout of mobile

phone transactions report and its reply (Exh. P2 and P3 respectively) and the report containing printout of mobile phone transactions from Vodacom (Exh. P4). It is noteworthy that, the exhibits tendered during the hearing of the case were inadvertently marked starting with exhibit PI again instead of P3. As a result, there were two sets of exhibits marked as PI and P2. A brief account of the facts leading to the conviction is as follows: On 11th November, 2016 at around 21.00hrs, the deceased person together with PW1 were going back home after closing their shop business. On the way, they were attacked by three persons who were later mentioned to be; the appellant, one Stanford Mbughi and Dickson Chisunga. That one of the attacker believed to be Stanford Mbughi who was holding a pistol in his hand, got hold of PW1 and the other two were attacking the deceased while demanding money from him. It appears the deceased was resisting and, in the fracas, the attacker with the pistol shot the deceased and accidentally, shot Dickson Chisunga as well. They both died instantly. The bandits disappeared immediately thereafter. The incident was reported to the police and PW5 immediately arrived at the scene of the incident. He found the two lifeless bodies and

upon inspecting them, he found a mobile phone Make MTN (exh. PI) from one of the pockets of the trouser of Dickson Chisunga. PW5 took it for further investigation and sent the dead bodies to Tunduma hospital. According to PW6, the investigation launched, particularly on the phone taken at the scene of crime assisted in unearthing useful information which led to the arrest of the appellant on 8th December, 2016. It was also testified by PW7 that, sim card No. 0762 004977 was registered in the name of the appellant and the same was located within Tunduma on the material day as per exh. P4. During trial, PW3 testified that, on the fateful date around 20.00 hrs Stanford Mbughi and the appellant went at their home and left with her husband stating that, he was to escort them somewhere, but he never came back. She also testified that, she called the appellant to ask him the whereabout of her husband but he was not picking the phone and finally he switched it off. She lamented that, the appellant together with his wife did not attend the burial of her husband, though, the late Dickson Chisunga was a good friend of the appellant. Her evidence was supported by PW2 who added that, on the fateful date at around 17.00hrs, he saw the trio together at Tunduma. As alluded to above, the appellant disassociated himself from the

allegation. In his defence, the appellant denied to know Dickson Chisunga. He also denied the ownership of sim card no. 0762004977 or to have ever used it. Further to that, he raised a defence of alibi to the effect that, from 28th October, 2016 to 8th December, 2016 when he was arrested, he was at Mpanda Village within Mbozi District at his uncle's home, one Trabo Sinkolongo (DW2) for farming activities. DW2 supported the appellant's assertion in his testimony and added that, they were together all the time. At the end of the trial, the High Court found the appellant guilty. Consequently, it convicted and sentenced him to suffer death by hanging. The appellant was aggrieved, hence decided to lodge this appeal to challenge the trial court's decision armed with eight grounds of appeal in the memorandum of appeal lodged on 4th March, 2022, but on 21st November, 2024, his advocate lodged a supplementary memorandum of appeal comprising five grounds in substitution of the previous one. At the hearing of the appeal, Mr. Ezekiel Mwampaka, learned advocate represented the appellant. On the other hand, Mr. Simon Peres, learned Senior State Attorney, represented the respondent

Republic supporting the appeal. When invited to amplify the grounds of appeal, Mr. Mwampaka abandoned the 2n d and 4th grounds of appeal and argued the rest. For ease of reference, we have reproduced and renumbered them as hereunder:-

1. That the trial Judge misdirected him seif by receiving the evidence o f PW2, PW7 together with Exhibits PI, P2, P3 and P4 which were not listed during com mittal proceedings and prelim inary hearing as contemplated under section 246 (2) o f the Crim inal Procedure Act [Cap 20 R.E. 2022] (the CPA).
2. That the trial Judge misdirected him self when relied and used the evidence used during the trial within a trial as a basis o f conviction in the main case.
3. That the trial Judge erred in law to uphold the conviction and sentence while the prosecution failed to prove their case to the standard required by law. In the 1st ground of appeal, Mr. Mwampaka complained that, it was an error for the trial Judge to receive the evidence of PW2 and PW7 who were not listed intended witnesses to testify at the trial. He argued that, the omission signifies that, their statements were not read over during the committal proceedings as the law requires.

The learned advocate also faulted the trial Judge for admitting exhibits PI, P2, P3 and P4 which were not listed during the committal proceedings and preliminary hearing as the exhibits to be tendered at the trial, which again means that, their contents were not made known to the appellant to enable him prepare his defence. Illustrating, the learned advocate submitted that, it is a legal requirement under section 246 (2) of the CPA that, all the names of the witnesses to testify at the trial and the exhibits to be tendered should be listed by the prosecution during the committal proceedings and preliminary hearing. He cited the case of Remina Omary Abdul vs Republic, Criminal Appeal No. 189 of 2020 [2022] TZCA 118 (15th March 2022) TANZLII to back up his argument. He further argued that, since the record is silent as regards the prayer to bring additional witnesses or additional evidence under section 289 (1) of the CPA, the pointed-out infraction rendered the evidence irregularly admitted and the only remedy is to expunge them from the record. He fortified his argument with the case of Sitta James vs Republic, Criminal Appeal No. 469 of 2020 [2024] TZCA 25 (12 February 2024) TANZLII. On the other hand, he pointed out that, the evidence of PW4 and PW5 was also received irregularly because the two witnesses were not

listed during the committal proceedings. He thus invited the Court to expunge their evidence as well. Concluding on this aspect, he prayed the Court to find merit in this and expunge the evidence of PW2, PW4, PW5 and PW7, together with Exhibits PI, P2, P3 and P4 from the record. Submitting in respect of the 2n d ground of appeal, Mr. Mwampaka contended that, the trial Judge misdirected himself for relying on the evidence adduced during the trial within a trial to mount the appellant's conviction. In support of his contention, he referred us to page 121 of the record of appeal. The learned advocate went on to submit that, the trial Judge, erroneously proceeded to analyse the said evidence together with the evidence adduced in the main case and relied on it to convict the appellant. It was the argument of Mr. Mwampaka that, the evidence adduced during trial within trial was an extraneous mater which could not have been relied on to base conviction as happened in this case. He contended that, the trial Judge erred in basing the appellant's conviction on such evidence and beseeched the Court to find merit in the 2n d ground of appeal. The appellant's complaint in the 3rd ground hinges on the failure on the part of the prosecution to prove the case beyond reasonable

doubt. Illustrating, the learned counsel submitted that, PW l's evidence was inadequate to convict the appellant as she was clear in her testimony that, she did not identify any of the attackers at the scene of crime. Mr. Mwampaka also discounted the evidence of PW3 for insufficiency. He argued that, PW3 failed to tell the trial court on how she managed to identify the appellant and Stanford Mbughi who were alleged to have gone to their house around 20.00hrs on the fateful date and went away with her husband, but later he was found shot dead together with the deceased. He went on to argue that, PW3's evidence raises doubts as to why she called the appellant on 17th November, 2017 while she testified that, the trio left on 11th November, 2016. Besides, he contended, the witness did not mention the mobile phone number she used to call the appellant. He argued that, the information would have cleared doubts as regards the mobile phone number 0762004977 which was stated to belong to the appellant. According to him, the evidence of PW3 left a lot to be desired. As for the remaining evidence of PW6, Mr. Mwampaka contended that, it did not link the appellant with the offence. He amplified that, the witness failed to bring evidence showing that, the mobile phone number

0762004977 was registered in the name of the appellant, and there was no prosecution witness who supported the assertion. In conclusion, he argued that, the law is long settled that, the prosecution is required to prove its case beyond reasonable doubt. He backed up his argument with the cases of Said Hemed vs Republic [1987] T.L.R 113 and John Nkize vs Republic [1992] T.L.R. 203. For those reasons, the learned advocate urged the Court to find the 3rd ground with merit as well, and allow the appeal. He further prayed the Court to quash the appellant's conviction and set aside the sentence meted on him and order his release. In his brief response, Mr. Peres, as hinted earlier, supported the appeal. He joined hands with Mr. Mwampaka in his submissions as regards the 1st and 2n d grounds of appeal. Basing on them, he conceded to the conclusion that, the case was not proved to the standard required. Clarifying, Mr. Peres submitted that, on the evidence, the case for the prosecution rested on circumstantial evidence as found by the trial Judge who also relied on the evidence of PW2, PW3 and PW7 and exhibits PI and P4 to conclude that, the appellant was at the scene of crime on the fateful date and further that, he was involved in murdering the deceased. It was the argument of the learned Senior State Attorney that, after expunging the evidence of PW2, PW3, PW5 and PW7

together with exhibits PI, P2, P3 and P4, the remaining evidence will be too weak to sustain conviction. Adding to the doubts pointed out on the testimony of PW3, Mr. Peres submitted that, the witness at page 37 of the record of appeal testified among others that, the late Dickson Chisunga was buried on 13th November, 2016, but she phoned the appellant on 17th November, 2016 to ask him on the whereabouts of her husband, which he contended to be illogical. He further discounted the evidence of PW6 for being insufficient to incriminate the appellant. He argued that, PW6 neither stated from whom he got the mobile phone number he testified to belong to the appellant nor tendered any document to prove ownership of the said mobile phone number by the appellant. Thus, his testimony remained a mere assertion. Mr. Mwampaka had nothing to rejoin but reiterated his prayer to have the appeal allowed. Having scanned the record of appeal and hearing the submissions from the parties, we are now in a position to determine the appeal before us.

As submitted by the learned advocate for the appellant and supported by Mr. Peres, the receipt of the evidence of PW2, PW4, PW5 and PW7 together with exhibits PI, P2, P3 and P4 was irregular on the ground that, the same were not listed during committal proceedings and preliminary hearing, and thus, contravened the requirement under the provisions of section 246 (2) of the CPA, the consequence of which is to expunge them as a remedy. We agree with the learned counsel considering the dictates of section 246 (2) which provides as follows:- "246 (2) Upon appearance o f the accused person before it, the subordinate court shaii read and explain or cause to be read to the accused the information brought against him as weii as the statem ents o f or documents containing the substance o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to call at the tria l " The cited provision imposes a mandatory obligation on the court conducting committal proceedings to read or explain or cause to be read to the accused person, not only the information brought against the accused, but also the statements or documents containing the substance of the evidence of witnesses intended to be called at the trial by the prosecution. The process includes listing of the intended witnesses as

well as the documents to be tendered during trial. Short of it, no witness whose statement or a document the contents of which was not made known to the accused during committal will be allowed to testify or receive in evidence during trial, unless the prosecution issue a reasonable notice in terms of section 289 (1) of the CPA to either call such a witness and/or add such a document. The purpose behind the requirement is to ensure fair trial by giving the accused person an opportunity to know and understand the nature of evidence to be adduced by the prosecution so as to prepare a sound defence to counter it. Our perusal of the record of appeal at pages 16-17 of the record of appeal shows that, PW2, PW4, PW5 and PW7 were not listed during the committal, to be among the intended prosecution witnesses. Neither were exhibits PI, P2, P3 and P4 included in the list of the exhibits to be tendered during the trial as correctly submitted by both parties. On that account, we are in agreement with the argument of Mr. Mwampaka that, the evidence was received in contravention of the provisions of section 246 (2) and thereby caused miscarriage of justice to the appellant. [See: Seif Salum and Another vs Republic, Criminal Appeal No. 119 of 2015 [2015] TZCA 163 (10 June 2015) TANZLII and Sitta Janies vs Republic (supra), Criminal Appeal No. 469 of 2020.

As both Mr. Mwampaka and Peres are at one and rightly so in our considered opinion that, the irregularly received evidence of PW2, PW4, PW5 and PW7 together with exhibits PI, P2, P3 and P4 have to be expunged from the record, we expunge it as we hereby do. The 1st ground is therefore meritorious and we sustain it. The complaint in the 2n d ground is that, the trial Judge acted on the evidence adduced during trial within trial as a basis for conviction in the main trial. When addressing the lay assessors in his summing up, the trial Judge stated the following at page 121 of the record of appeal: "...In his testim ony during triai within trial, the accused adm itted that he had a child called RECHO..." It is conspicuous in this statement that, the trial Judge was referring to the evidence adduced during trial within a trial. That was highly irregular because, assessors were already discharged immediately before the commencement of the trial within a trial to determine the voluntariness of the cautioned statement. Whatever transpired therein ends there and did not form part of the proceedings in the main trial. In other words, the trial within a trial proceedings are extraneous to the main trial which should not have been referred to in the judgment and relied on it to convict the appellant. We are therefore in agreement with the arguments of Mr. Mwampaka and consequently, we sustain the 2n d ground.

Finally, is the 3rd ground in which Mr. Mwampaka complains that the prosecution failed to prove the case to the standard required. His argument was supported by Mr. Peres and without hesitation, we share the same view. After expunging the evidence of PW2, PW4, PW5 and PW7, together with Exhibits PI, P2, P3 and P4 from the record, there is no gain saying that the case remains unproven. We are so saying because the remaining evidence of PW1, PW3 and PW6 as above analysed is insufficient to ground conviction of the offence the appellant was charged with. We shall explain: PW1 was categorical that, she did not identify the appellant as among the attackers at the scene of crime who eventually killed her husband. On the other hand, PW3 failed to state how she identified the appellant to be one of the two persons who visited their home around 20.00hrs on the fateful date and went away with her late husband. Thus, the identification is questionable and raise doubts which ought to have been resolved in favor of the appellant. As for PW6, his evidence did not link the appellant with the offence for lack of proof as above analysed. In fine, we find the 3rd ground of appeal meritorious as well. It is a settled principle of law that, in criminal cases the prosecution is required to prove the case beyond reasonable doubt.

[See: Said Hemedi vs Republic (supra)]. Basing on the analysis in the matter at hand, we are with settled mind that, the standard was not reached. Having sustained all the grounds of appeal and found the case was not proved beyond reasonable doubt, we allow this appeal. Consequently, we quash the conviction and set aside the sentence imposed on the appellant and order the release of the appellant forthwith unless held for another justifiable reason. DATED at MBEYA this 2n d day of December, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 3rd day of December, 2024 in the presence of Mr. Ezekiel Mwampaka, learned advocate for the appellant and Ms. Atuganile Job Kaponda, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL