Fitina Reuben & Others vs Republic (Criminal Apeal No. 255 of 2021) [2024] TZCA 979 (25 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LEVIRA J.A.. MAIGE. 3.A. And MASOUP. J.A .^ 1 CRIMINAL APPEAL NO. 255 OF 2021 FITINA REUBEN........................................................................1 st APPELLANT MASUMBUKO ADAM SANGA ................................................. 2 nd APPELLANT SIZYA NDEZI MWASILE @WILSON MWANGASAMA ........... 3 rd APPELLANT BAHATI TENSON KUVE............................................................ 4™ APPELLANT VERSUS THE REPUBLIC.............................................................................RESPONDENT (Appeal from the Judgment of the Resident Magistrate Court of Mbeya at Mbeya) (Ntumo, Ext. Jur.^ dated 2n d day of June, 2022 Criminal Session No. 38 of 2019 JUDGMENT OF THE COURT 21st & 25thOctober, 2024 MAIGE, J.A.: At the Resident Magistrate Court of Mb^ya with extended Jurisdiction sitting (the trial court), the appellants were charged with the offence of murder contrary to section 196 of the Penal Code. The information asserts that, on 31st day of January, 2018 (the material day), at Kasangakanyika village within Chunya District and Region of Mbeya, the appellants murdered one Mwile s/o Singale (the deceased). i

The prosecution case was by and large, built on the visual identification evidence of Elias Jonas (PW3); the investigative evidence of E. 8052 Stg Ally (PW1); the cautioned statement of the first appellant recorded by GH. 7709 D/CPL Dickson-PW4 (exhibit PE7); and the shotgun seized from the second appellant by PW1 in the presence of Jackson Mohamed Charles- PW2 (exhibit PEI). PW3 claimed that he was with the deceased when the incident was taking place. They were travelling to Chunya on a motorcycle. Suddenly, they were invaded by a gang of four armed bandits whom he recognized as the appellants. In the process, one of them shot the deceased dead with a shotgun. PW3 reported the incident to the villagers and thereafter, to the police where he disclosed the names of the suspects. Basing on that disclosure, the second appellant was arrested and, upon being interrogated by PW1, he mentioned the first and third respondents as his co-offenders. A search was eventually conducted at the residence of the first appellant wherein a shotgun and bullets believed to have been used in the commission of the offence were retrieved (exhibits PEI and PE2). On being interrogated by PW4, the first appellant confessed to have committed the offence as per exhibit PE7 in a company of the second, third and fourth appellants. 2

In their defence, the appellants denied committing the offence. They denied presence at the scene of the crime at the material day as well. In his judgment, the learned Resident Magistrate with extended jurisdiction placed heavy reliance on the cautioned statement of the appellant which, in his view, established the common intention of the appellants to commit the offence. He also believed the visual identification evidence of PW3 to be credible and watertight. He, therefore, convicted the appellants with the offence and sentenced each of them to death by hanging. They were aggrieved and henceforth the current appeal. The memorandum of appeal contained nine grounds. During hearing, however, three of them were abandoned. As a result, six grounds remained which raise the following complaints. One, the case against appellants was not proved as per the law. Two, the names and identities of the appellants were not disclosed to the police at the earliest possible opportunity. Three, the names of the appellants were not disclosed by PW3 to the villagers. Four, no expert evidence was produced to establish that exhibit PE 1 was used to murder the deceased. Five, the trial court acted on a cautioned statement which was illegally admitted. Six, the identification parade was conducted without there being prior description of the identities of the suspects.

In the conduct of the appeal, the appellants were represented by Mr. Omari Issa Ndamungu and Ms. Caroline Joseph Mseja, both learned advocates. The respondents were represented by Mr. Aboud Yusuph, learned Senior State Attorney and Lordgud Eliamani, learned State Attorney. The appellants' submissions in support of the appeal which were presented by Mr. Ndamungu were based on the proposition that the case against the appellants was not proved beyond reasonable doubts. The counsel pinpointed four elements which in his contention, raise reasonable doubts which ought to have been resolved against the prosecution. In the first place, Mr. Ndamungu submitted that, notwithstanding his claim to have recognized all the suspects at the scene of the crime, PW3's evidence does not suggest that he disclosed their names as he was reporting the incident to PW1. He claimed to have mentioned the third and fourth appellants in the first statement and the first and the second appellants in the second statement. That, it was concluded, affected the credibility of visual identification evidence of PW3. Our attention was drawn to the case of Maligile Maingu v. R (Criminal Appeal No. 432 of 2021) [2023] TZCA 17303 (5 June 2023], in support of the position that failure to name a suspect at the earliest opportunity raises a reasonable doubt on the witness's credibility.

The second element touches PW3's claim that the incident was initially reported to an unnamed villager. Mr. Ndamungu submitted that, it was highly improbable for the crime in question to be reported at the first instance to a mere villager. It should have been reported to the police station which was not far from the scene of the crime, he clarified. The counsel further wondered how probable would it be for PW3, as his evidence suggests, not to disclose the names of the appellants to the said villager. In any event, he submitted, the said villager was not, for undisclosed reason, called as a witness despite being material in the circumstances. He, therefore, urged us to draw an adverse inference against such a failure in line with the principle in Ahmad Salum Hassan Chinga v. R. (Criminal Appeal No. 386 of 2021) [2023] TZCA 44 (22 February 2023). The third element was failure by the prosecution to produce expert evidence that would link the shotgun (exhibit PEI) with the commission of the offence. In the absence of such evidence, it was submitted, the exhibit was irrelevant in establishing the claim. The failure of the prosecution to produce such evidence in the nature of the crime involved, he submitted, raises reasonable doubt on the credibility of the prosecution story. 5

Next was on the reliability of the first appellant's cautioned statement (exhibit PE7). In the first place, it was submitted, the cautioned statement was recorded in violation of section 57(3) of the Criminal Procedure Act in so far as it lacked a certification clause. Citing the case of Juma Omary v. R (Criminal Appeal No. 568 of 2020) [2022] TZCA 798 (8 December 2022), it was contended that the omission was fatal. On top of that, it was submitted, for not being listed during committal proceedings, the said statement was illegally admitted. We were advised to expunge it from the record. In reply, Mr. Eliamani fully supported the appeal. In his contention, the case was badly investigated which is why the charge was not proved beyond reasonable doubt. Like Mr. Ndamungu he urged us to allow the appeal and set the appellants free. Having keenly considered the submissions in line with the record and the laws, the main issue which we have to resolve is whether the charge against the appellants was proved beyond reasonable doubts. Our starting point will be the legality of reliance of the cautioned statement of the first appellant (exhibit PE7) in convicting the appellants. We have had an opportunity to examine the record and satisfied ourselves that the said statement was not among the documents listed 6

during committal proceedings. This was contrary to the mandatory requirement of section 246(2) of the Criminal Procedure Act to the effect that; where a document or statement is intended to be relied upon during criminal trial by the High Court, it has to be listed during committal proceedings and the substance thereof read and explained to the accused. The respective provision reads as follows: "(2) Upon appearance o f the accused person before it, the subordinate court shall read and explain or cause to be read to the accused person the inform ation brought against him as w ell as the statem ents or documents containing the substance o f the evidence o f the witnesses whom the D irector o f Public Prosecutions intend to ca ll at trial . " We have consistently insisted in numerous pronouncements that, non-compliance with the above requirement is a fatal irregularity which renders the intended evidence inadmissible. For instance, in Director of Public Prosecutions v. Sharif Mohamed @ Athuman & Five Others (Criminal Appeal No. 74 of 2016 (unreported), we observed: "Our understanding o f this provision is that, it is not enough for a witness to m erely allude to a document in his witness statement, but that the contents o f that document m ust also be made 7

known to the accused(s). I f this is not done with the witness cannot later produce that document as an exhibit in court. The issue is not the authenticity o f the document but on non- com pliance with the law ." The rationale behind the requirement was discussed in the case of Masamba Msiba @ Msiba Msai Masamba v. R (Criminal Appeal No. 138 of 2019) [2021] TZCA 270 (28 June 2021) which also pertained to murder in the following words: "The sp irit behind such requirem ent is to guarantee an accused person facing a hom icide case a fa ir tria l by affording him the opportunity . . - to know and understand in advance the case o f prosecution for him to mount a m eaningful defence. Since the documents were introduced during the tria l o f the case obviously the appellant was highly prejudiced hence the exhibits are liable to be expunged." In view of the foregoing, therefore, we are in agreement with Mr. Ndamungu that, exhibit PE7 was illegally admitted into evidence. It is accordingly expunged therefrom. We shall consider hereinafter if the remaining substance of evidence is capable of proving the case beyond reasonable doubts. 8

We shall start with the evidence in exhibits PEI and PE2, the shotgun and bullet believed to have been used to commit the offence. The prosecution story suggests that the Deceased was shot by a shotgun. The prosecution evidence, as correctly submitted for the appellants, does not show if the exhibited bullet had been used or not. No expert evidence, as further submitted, was produced to establish that the respective exhibits were used in the commission of the offence. Ordinarily, that would require a ballistic evidence, which for undisclosed reasons, was not produced. Without much ado, we would agree with Mr. Ndamungu that, in the absence of such evidence, exhibits PEI and PE2 cannot link the appellants or either of them with the murder under discussion. We now remain with the oral evidence of PW3. This was an eyewitness who claims to have seen the appellants committing the offence. The evidence suggests that, he reported the incident to a villager. Quite unusually, his evidence is mute if he named the appellants or either of them to the said villager. PW3's failure to name the appellants to the said villager, we agree with Mr. Ndamungu, affected his credibility. This is in line with the principle in among others, Ahmad Salum Hassan Chinga v. R. {supra). We also agree with Mr. Ndamungu that, the said witness was material in the circumstances of this case. The unreasonable 9

omission to call him as a witness, therefore, raises doubt on the credibility and probity of the visual identification evidence of PW3. Still on the same point, the evidence of PW3 suggests that, when he subsequently visited the scene of the crime with the villager, he disclosed the names of the suspects to the police. The name of the police to whom he disclosed the said names is not in his evidence, however. In accordance with the record, two witnesses from the police namely; PW1 and PW4 testified. PW4 was the police officer who recorded the cautioned statement of the first appellant. His evidence as appears at page 93 of the record of appeal is very clear that his duty was only to record the cautioned statement of the first appellant. He does not seem ever to have claimed to be among the persons who visited the scene of the crime on the material date or at all. PW1 was asked by way of cross examination if he was among the policemen who visited the scene of the crime and his answer as appears at page 62 of the record is as follows: 7 did not visit the scene o f the crim e but one Police O fficer Eupician. That officer did not give me any exhibits nor did he le t me know what he had discovered." Therefore, as none of the policemen who visited the scene of the crime was called as a witness, whether PW3 disclosed the names of the 10

appellants to the police at the scene of the crime remains as a mere allegation without any proof. We further note that, in his evidence, PW3 claims to have been taken to the police station and caused to make statements three times. At first time, he testified, he named the third and fourth appellants and at the second time, the first and second appellants. Mr. Ndamungu looks at this statement suspiciously as it is highly improbable for PW3 to disclose the names of the appellants in piecemeal while according to his story all of the appellants were known to him before the incident. With respect, we find merit on this submission. We have further two reasons to support that position. In the first,place, while PW3 claims to have named all the appellants at the police station, the evidence of PW1 which appears at pages 12 and 13 of the record suggests that he disclosed the name of the second appellant only who in turn disclosed the names of other suspects. In the second place, while the evidence of PW3 appearing at page 82 of the record reveals that, he made two statements on identification of the appellants in two different days, in his evidence appearing at page 81 of the record, PW3 said that he appeared at the police once. As to which is exactly true between the two contradictory claims leaves much to be desired. li

In our view of the foregoing discussions, we are satisfied that the case against the appellants was not proved beyond reasonable doubts and the appeal is, therefore, allowed. As a result, we quash the conviction and set aside the sentence imposed against the appellants. We further order for their immediate release from custody unless therein withheld for other lawful reasons. 'DATED at MBEYA this 24th day of October, 2024. M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL Judgment delivered this 25th day of October, 2024 in the presence of Mr. Omary Issa Ndamungu, learned counsel for the Appellants and Mr. Albert Kikuli, the learned State Attorney for the Respondent/Republic, is