Kulwa Bunzari @ Bodo vs Republic (Criminal Appeal No. 583 of 2021) [2024] TZCA 1032 (4 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA ( CORAM: KEREFU, 3.A., KIHWELO. J.A. And MDEMU, 3JU CRIMINAL APPEAL NO. 583 OF 2021 KULWA BUNZARI ( § >BODO... .. .... ...... ...... APPELLANT VERSUS THE REPUBLIC.... ..... ......RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) (N kw abul-) dated the 26th day of October, 2021 in Criminal Sessions No. 51 of 2018 JUDGMENT OF THE COURT 30h October & 4h November, 2024 KEREFU. J.A.; The appellant, Kulwa Bunzari @ Bodo was charged with the offence of murder contrary to section 196 of the Penal Code, Gap. 16 (the Penal Code) before the High Court of Tanzania at Sumbawanga (Nkwabi, X) in Criminal Sessions No. 51 of 2018. It was alleged that, on 17th September, 2016 at Luhafe-Tongwe Village within Tanganyika District in Katavi Region the appellant murdered one Edward Kllumba @ Mawani (the deceased). The l

appellant pleaded not guilty to the charge. However, after a full trial, he was convicted and sentenced to suffer death by hanging. In essence, the substance of the prosecution case as obtained from the record of appeal indicates that, in the evening of 17th September, 2016 at around 08:00 hours, while Paul Mikasi (PW1), the Chairperson of the Luhafe hamlet was at home, he was visited by one Yebo Jonas who informed him that his neighbour, Edward Kilumba had been injured and was in a critical condition. Upon receiving that bad news, PWl, unsuccessful phoned the hamlet Secretary, Luseko Iyanga (PW2). Thus, PW l requested Yebo Jonas to go and report the matter to PW2. PWl proceeded to the scene of crime where he found many people surrounded the deceased who was bleeding profusely from his neck and he could not talk. That, when he tried to talk blood was coming out through his throat Notwithstanding the serious injuries sustained, he indicated that he could write something. PWl went on to state that, when PW2 arrived at the scene of crime, he gave the deceased a piece of paper and a pen on which he wrote "Kijana Bocfo” That, when they asked him who was that person, the deceased wrote on another piece of paper "Kijana Bocfo Kulwa" PWl stated further that, he reported the matter to the Police Station and the police officers came at the

scene of crime and took the victim to the hospital but he succumbed to death in the next day. In the meanwhile, PW1 sent militiamen to arrest the culprit. In his evidence, PW2 supported the narration by PW1 and stated that, on the first paper, the deceased wrote , "Kijana wa kwa Mwana Bodo," and on the other paper he wrote, "Mwanabodo Kulwa" PW2 also added that, the militiamen arrested ail sons of the family of Bodo and when they were asked, who was Kulwa among them, the appellant showed up and he was, subsequently arrested and taken to the Police Station on the same night. At the police, the appellant was interrogated by H. 6013 SGT. Rwezaura (PW5) who recorded his cautioned statement. It was the testimony of PW5 that, in the said statement, the appellant admitted to have been involved in assaulting the deceased. The said statement was admitted in evidence as exhibit P6. Moreover, H. 6181 SGT God bless (PW4), testified that, he was involved in the investigation of the case, That, after the death of the deceased he went back to the scene of crime and found that the wife of the deceased had already moved away from the homestead. Thus, he got the two pieces of papers written by the deceased from one Liaga. He added further that, he entered into the room of the deceased and collected other papers allegedly

written by the deceased and took, them to the handwriting expert one H. 3400 SGT Stephen (PW3). PW3 conducted analysis and concluded that, the handwriting on the said papers belong to the deceased. The two pieces of paper were admitted in evidence as exhibit P3 and the forensic report on the deceased's handwriting as exhibit P5. The postmortem examination report, the sketch map of the scene of crime and the chain of custody form were admitted in evidence as exhibits PI, P2 and P4 respectively. In his defence, the appellant denied to have committed the offence. He testified that, he was arrested on 17th September, 2016 at his home and was taken to Police Station without being told the offence he committed. That, at the police, he was forced to write his statement after being tortured. He thus disowned the cautioned statement and challenged the evidence of PW2 that he gave untrue story before the trial court. After a full trial, the learned trial Judge was convinced that the prosecution had proved the case against the appellant to the required standard. Specifically, the learned trial Judge placed much reliance on the deceased's dying declaration which was corroborated by the evidence of PW1, DW1 and the appellant's cautioned statement, which he found to be sufficient to prove that the appellant was responsible with the murder of the

deceased. Thus, the appellant was found guilty, convicted and sentenced as indicated above. Dissatisfied, the appellant is now before us challenging the decision of the trial court. It is noteworthy that, on 7th February, 2023, the appellant lodged a memorandum of appeal comprising eight grounds of appeal. However, on 28th October, 2024, Mr. Ayub Mwakalonge, learned counsel who was assigned to represent him, substituted the said memorandum with a supplementary one comprising the following grounds of appeal which can be conveniently paraphrased as follows; first, the circumstantial evidence relied upon by the learned trial Judge to convict the appellant was uncorroborated; second, the deceased's dying declaration (exhibit P3) relied upon by the learned High Court Judge to convict the appellant was doubtful; third, failure by the prosecution to summon key witnesses to testify at the trial; fourth, the appellant's cautioned statement (exhibit P6) was improperly admitted in evidence for failure by the learned trial Judge to conduct trial within trial; and finally, the prosecution case was not proved to the required standard. At the hearing of the appeal before us, the appellant was represented by Mr. Ayub Mwakalonge, learned counsel whereas the respondent Republic was represented by Mr. Deusdedit Rwegira, learned Senior State Attorney.

Upon taking the floor, Mr. Mwakalonge intimated that he will argue the first and second grounds conjointly and the remaining grounds separately. Submitting in support of the first and second grounds, Mr. Mwakalonge faulted the learned trial Judge for finding that the charge against the appellant was proved to the required standard by relying on the deceased's dying declaration which was not corroborated. To support his proposition, he cited the case of Sadick Ally v. Republic, Criminal Appeal No. 105 of 2020 [2015] TZCA 468 and argued that, the evidence of PW1 and PW2, the prosecution witnesses who testified on the deceased's dying declaration, is tainted with contradiction thus, unreliable. He referred us to pages 70 and 75 of the record of appeal and argued that the said witnesses mentioned different names written by the deceased in exhibit P3 and all do not belong to the appellant. It was his strong argument that, the evidence of PW1 and PW2 having been tainted with contradictions is incapable to corroborate the alleged dying declaration. He thus, insisted that, since the alleged dying declaration of the deceased was not corroborated, it was improper for the learned trial Judge to have relied on the same to mount conviction on the appellant.

On the third ground, Mr. Mwakalonge blamed the prosecution for failure to summon one Yebo Jonas, who was mentioned by PW1 to be the first person who reported the incident to him. It was his argument that, if the said person could have been called to testify, would have shed more light on what exactly happened at the scene of crime on that fateful date. To bolster his argument, he cited the case of Aziz Abdallah v. Republic [1991] T.L.R. 71. As for the fourth ground, Mr, Mwakalonge faulted the learned trial Judge for failure to conduct trial within a trial to inquire on the voluntariness of the appellant's cautioned statement (exhibit P6) after the counsel for the appellant had raised an objection to its admissibility on account that it was illegally obtained as, the appellant was assaulted contrary to section 53 (b) of the Criminal Procedure Act, Cap. 20 (the CPA) and that, it was recorded out of the time prescribed by section 50 (1) (a) of the CPA. To justify his argument, he referred us to pages 101 to 105 of the record of appeal together with the case of Stephen Jonas & Another v. Republic, Criminal Appeal No. 337 of 2018 [2021] TZCA 503 and impressed on us to expunge exhibit P6 from the record.

On the last ground, Mr. Mwakalonge faulted the learned trial Judge for failure to observe that the prosecution case was not proved to the required standard. He contended that, for circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilty and not otherwise. Finally, and based on his submission, Mr. Mwakalonge urged us to allow the appeal by quashing the conviction and set aside the sentence imposed on the appellant and set him at liberty. Responding to the grounds of Appeal, Mr. Rwegira, at the outset, declared the respondent's stance of supporting the appeal. He thus readily conceded that the case against the appellant was not proved to the required standard because the deceased's dying declaration relied upon by the trial court to mount conviction on the appellant, did not meet the standard of a dying declaration stated in Sadjck Ally (supra). He opted not to go into further details of the circumstances which led to the said procedural irregularities complained of by the appellant, as he associated himself with the submission of Mr. Mwakalonge. In further support of the appeal, Mr. Rwegira readily conceded that exhibit P6 was un-procedurally acted upon as, after the objection raised by the counsel for the appellant on its admissibility, trial within a trial was not

conducted to determine its voluntariness. He specifically, blamed the learned trial Judge, in the course of crafting his ruling, to assume the role of the prosecutor and found that exhibit P6 was recorded within time, while there was no evidence adduced by the parties to that effect. As such, he also agreed with the submission by his learned friend that exhibit P6 should be expunged from the record. It was his argument that, after expunging exhibit P6 from the record, the remaining evidence cannot sustain the appellant's conviction as the testimonies of PW1 and PW2 are tainted with contradictions which raise doubts that should be determined in favour of the appellant. In conclusion, the learned Senior State Attorney also urged us to allow the appeal and set the appellant free. In his brief rejoinder, Mr. Mwakalonge welcomed the concession by his learned friend without more and insisted for the appeal to be allowed. On our part, having carefully considered the grounds of appeal, the submissions made by the learned counsel for the parties and examined the record before us, we think, the burning issue for our consideration is whether the prosecution proved its case beyond reasonable doubt. We wish to start by stating that, this being a first appeal it is in the form of a re-hearing, therefore the Court, has a duty to re-evaluate the entire

evidence on record by reading it together and subjecting it to a critical scrutiny and, if warranted, to arrive at its own conclusion of fact. See the cases of D.R. Pandya v. Republic [1957] EA 336 and Reuben Mhangwa and Another v. Republic, Criminal Appeal No. 99 of 2007 [2019] TZCA 341. In the instant appeal, there is no doubt that the prosecution case relied heavily on circumstantial evidence as there was nobody who witnessed the appellant committing the offence. Therefore, in resolving this appeal, we deem it pertinent to initially restate the basic principles governing reliability of circumstantial evidence as discussed in the case of Jimmy Runangaza v. Republic, Criminal Appeal No, 159B of 2017 [2018] TZCA 188, when this Court remarked that: 7/7 order for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilt (See Simon Musoke v. Republic, [1958] EA 715). Sarkar on Evidence, 15t / ) Ed. 2003 Report Vol. 1 page 63 also emphasized that on cases which rely on circumstantial evidencer such evidence must satisfy the following three tests which are:

1. the circumstances from which an inference o f guilty is sought to be drawnf must be cogently and firmly established;
2. those circumstances should be o f a definite tendency unerringly pointing towards the guilt o f the accused; and
3. the circumstances taken cumulatively, should form a chain so, complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else." In determining this appeal therefore, we shall be guided by the said principles to establish whether or not the available circumstantial evidence in the case at hand irresistibly points to the guilt of the appellant In the instant appeal, it is common ground that the appellant's conviction was grounded on the dying declaration (exhibit P3) and the appellant's confession (exhibit P6). Therefore, this makes it convenient for us to start with the first and second grounds of appeal relating to dying declaration. It is a general rule that, a court can act upon a dying declaration if it is satisfied that the declaration was made, if the circumstances in which it was l i

made give assurance to its accuracy, and if it is in fact true. That, by its own nature, the evidence of a dying declaration falls into the category of evidence in which material corroboration is necessary before it can be accepted and acted upon. See for instance the case of Hamisi Nzunda & 2 Others v. Republic, Criminal Appeal No. 34 of 1995 [1999] TZCA 10. Having perused the record of appeal and specifically exhibit P3, we agree with the submissions by both learned counsel for the parties that it was improper for the learned trial Judge to rely on the alleged dying declaration as it lacked the necessary legal elements for it to form the basis of a conviction. PW1 and PW2, the prosecution witnesses who testified on the deceased's dying declaration, were not credible witnesses because of inconsistences and doubts in their evidence coupled with the critical condition of the deceased at the scene of crime. That, while PW1, at page 70 of the record of appeal testified that, in the first paper the deceased wrote "Kijana Bodd' and in the second paper he wrote * Kijana Bodo Kulwa/'VWI, at page 75 of the same record stated that, in the first paper the deceased wrote "Kijana wa kwa Mwanabodo," and on the other paper he wrote, "Mwanabodo Kuiwa " Given the said contradiction, it is clear to us that the evidence of PW1 and PW2 was incapable of corroborating the alleged deceased's dying

declaration. In addition, and as correctly argued by the learned counsel for the parties, all names mentioned by the said witnesses, do not belong to the appellant. In that regard we find the first and second grounds of appeal to have merit. Moving to the fourth ground on the appellant's complaint that exhibit P6 was improperly admitted in evidence, we wish to start by stating that, it is a cherished principle of law that, whenever it is desired to tender any document in admission, it has first to be cleared for admission before it is admitted in evidence and acted upon. Where an objection is raised on the admissibility of the cautioned statement or extra judicial statement on the basis that the statement was not made voluntarily or that was made contrary to the provision of the law, the trial court is duty bound to conduct a min trial in the form of trial within trial and or an inquiry, for the High Court and subordinate court respectively, to determine the admissibility or otherwise of the respective statement. There is a plethora of authorities to this effect. See for instance the cases of Twaha Ali & 5 Others v. Republic, Criminal Appeal No. 78 of 2004 (unreported), Joseph Mkumbwa & Another v. Republic, Criminal Appeal No. 94 of 2007 [2011] TZCA 118 and Nyerere

Nyague v. Republic, Criminal Appeal No. 67 of 2010 [2012] TZCA 103. Specifically, In the former case, the Court observed that: "If that objection is made after the trial court has informed the accused o f his right to say something in connection with alleged confession, the trial court must stop everything and proceed to conduct an inquiry (or a trial within trial) into the voluntariness or not o f the alleged confession. Such an Inquiry should be conducted before the confession is admitted in evidence." Corresponding observations were made in Morris Agunda & 2 Others v. Republic, Criminal Appeal No. 100 of 1995 (unreported), where the Court considered an objection raised by the appellant that his statement was recorded out of time as he was arrested on 21s t January, 1982 but his statement was taken on 28th February, 1982. The Court stated that: "...there is no explanation or apparent reason for the delay, in our view, an alleged confession made after such considerable and unexplained lapse o f time is not consistent with the view that the confession was made voluntarily."

Similarly, in the instant appeal, since the appellant's objection was on account of his statement being procured illegally and out of time, which was not consistent with the view that the confession was made voluntarily, the learned trial Judge was required to conduct trial within trial to determine its admissibility or otherwise. Since that was not done, we agree with the submissions by both learned counsel for the parties that, exhibit P6 was improperly admitted in evidence and we hereby expunge it from the record. Having expunged exhibit P6 and found that the deceased's dying declaration was uncorroborated as the evidence of PW1 and PW2 is tainted with contradictions and inconsistencies, we are left with no scintilla of evidence to support the appellant's conviction. In that regard, it is our settled view that, the circumstantial evidence which was relied upon to ground conviction against the appellant did not meet the guiding principles of the law indicated above as it did not irresistibly point to the guilty of the appellant in exclusion of any other person. In view of what we have endeavoured to demonstrate, we are satisfied that the evidence on record cannot sustain conviction of the appellant on the charge of murder. As such, we also find the fourth ground of the appeal to

have merit. Since the determination of these grounds suffices to dispose of the appeal, we see no reason to examine the remaining grounds. In the event, we hereby allow the appeal, quash conviction and set aside the sentence that was imposed on the appellant. We order that the appellant be released from custody forthwith unless he is otherwise lawfully held. ; DATED at SUMBAWANGA this 1s t day of November, 2024. R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 4th day of November, 2024 in the presence of the appellant appeared in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Republic/respondent; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL