IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM

(CORAM: LILA. J.A.. MWANGESI. 3.A. And SEHEL. J JU

CRIMINAL APPEAL NO. 95 OF 2018

HAMIS JUMA CHAUPEPO @ CHAU...............................................APPELLANT

VERSUS

THE REPUBLIC....................................................................... RESPONDENT

(Appeal from the Judgment and Decree of the High Court of Tanzaniaat Dar es Salaam)

(Mwandambo. 3.1

dated the 9th day of March, 2018 in

HC Criminal Session Case No. 21 of 2013

JUDGMENT OF THE COURT

12th May, & 21st 2020

SEHEL. J.A.:

This is a judgment on appeal against the conviction of murder and a

sentence to suffer death by hanging imposed to the appellant by the High

Court of Tanzania sitting at Dar es Salaam District Registry (the trial court).

According to the Information filed at the trial court, Rashid Hamis

Mohamed @ Niga who stood trial together with the appellant were alleged

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to have murdered one Reuben Erasto on 7th January, 2008 at Magomeni

Mikumi Jaba area within Kinondoni District in Dar es Salaam.

The evidence adduced to the trial court were that: on 6th day of

January, 2008 at/around 21:00 Hours, Athumani Said Masenene (PW6)

was returning home from Ilala on a bicycle to Magomeni. Upon reaching at

Jaba area, he saw a group of people standing. As he moved closer and

with the aid of street lights that were on each side of the road illuminating

the area, he managed to see a tall, black person, being strangled by four

people and one of them who was punching the victim with his fists on his

stomach was short and light skinned. PW6 together with other people who

were there, were puzzled by the whole incident. He tried to move even

closer but the attackers shouted at him and other people who were there

to mind their own business because they said, they were sorting out a

small business dispute with a colleague who owed them money. They

were, then, chased away with a panga. Having been chased away, PW6

took his bicycle and left the area.

On the next day, in the morning hours as PW6 was heading to his

work place by using the same road, he again saw a group of people

gathered around the same area where he had witnessed a fracas on the

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previous night. The people were staring to a dead body that was lying on

the ground. The body resembled the person that was being attacked on

the previous night.

On the same day of the 6th January, 2008, at/about 21:00 hours,

Wilfred Cosmas (PW5) together with his fellow masons, namely Ueso Issa

and Ramadhani Majigi were returning home. They were coming from

Magomeni Mikumi going to Kigogo. When they reached at Jaba area, close

to a motor vehicle warehouse, they saw a fracas involving a person being

strangled. According to PW5, the victim was tall and seemed to be a man

of physical exercise. Hence, the two attackers were trying to pin him down

and they had a panga and a knife. They tried to help but they were told

not to bother because the victim was their fellow businessman as he owed

them money. Suddenly, they saw the victim being pushed to a ditch. They

wanted to help him but the attackers unleashed a panga and started

chasing them up to 20 meters away. They dispersed.

On the next day at/about 0600 hours when PW5 was on his way to

his work place using the same route, he found a group of people at the

same place where he witnessed the fracas the other night. He moved

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closer and saw a dead body. He had a closer look to the dead body and

discovered that it was the same person who had been strangled the

previous night.

The police officers arrived and investigation started whereby Rashid

Hamis Mohamed @ Niga was arrested on 18th January, 2008. He was taken

to Magomeni Police Station and his cautioned statement was recorded by

Denis Wilson Chishomi (PW3). An identification parade that was supervised

by SSP Juma Max Mhindi (PW2) was conducted on 20th January 2008 and

its register was tendered and admitted, Exhibit P3.

The appellant was arrested after six months having been spotted by

PW6 at Mabibo Mwisho. It turned out that on 27th day of July, 2008

at/about 12:45 PW6 was at Mabibo Mwisho waiting for commuter bus to

Kariakoo, where he saw a person resembling the one he saw on 6th

January, 2008. He moved closer to satisfy himself if he was the same

person and indeed he was. The appellant was touting passengers for

commuter transport. PW6 went to a nearest Police outpost, Mabibo Mleba

Police outpost where he met D.7780 D/Sgt. Joseph (PW1) and reported the

matter.

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PW1 together with one police officer and two militia men led by PW6

apprehended the appellant. He was taken to Magomeni Police Station

where his cautioned statement was recorded on the same day by F. 18084

Inspector Abdallah (PW4). That cautioned statement was admitted, Exhibit

P4, after the trial court conducted a trial within trial and satisfied that it

was freely and voluntarily made by the appellant.

The prosecution case was also built upon two other documentary

evidences, namely sketch map (Exhibit PI) and postmortem examination

report (Exhibit P2) which were tendered and admitted during the

Preliminary Hearing stage.

The appellant in his defence admitted that he was arrested on 27th

July, 2008 at Mabibo Mwisho but denied to have committed the murder. He

said that on 27th January, 2008 he was on his way from Pharmacy where

he went to buy medicine for his sick father. While he was on his way, he

met a group of police officers who had already arrested eight (8) people

and they were tied up with ropes. He was stopped and asked where he

was coming from. He explained to them and showed them the medicine

but they arrested and handcuffed him without being told the reason for his

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arrest. He was then thrown in a police motor vehicle make defender and

taken to Magomeni Police station. He said, initially, he was charged with an

offence of armed robbery but later on 5th August, 2008 that charge was

substituted to murder and joined with Rashid Hamis Mohamed @ Niga. He

also told the trial court that he could not recall where he was on the 6th

January, 2008.

The lady and gentleman assessors returned a verdict of not guilty.

They were of the opinion that the key identifying witnesses, PW5 and PW6

did not properly identify the accused persons.

The trial court concurred with the assessors that the visual

identification of PW5 and PW6 was too weak for proper identification of the

accused persons. It also held that the identification parade conducted by

PW2 contravened Rule 2 of the Police General Order No. 232 made by the

Inspector General of Police pursuant to the powers vested in him by

section 7 (2) of the Police Force Auxiliary Services Act, Cap. 322 RE 2002.

Therefore, it treated the whole exercise as worthless with no evidential

value. As such, it did not act upon it. Nevertheless basing on the

confessional statement (Exhibit P4) whose contents were found to have

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been corroborated by Exhibit P2, the trial court found the appellant guilty.

It thus convicted and sentenced him to death by hanging. Whereas, Rashid

Hamis Mohamed @ Niga was acquitted on the basis that the prosecution

case had a lot of doubts on his culpability in the murder of the deceased.

Dissatisfied with that finding, the appellant initially filed a

memorandum of appeal comprised of three grounds which are reproduced

hereunder:-

1. That, the learned trial judge erred in law and in fact to

convict the appellant basing on the charge sheet

which had disparity with the evidence of the allegedly

eye witnesses of the scene, namely PW5 and PW6,

particularly as to on which date and what time did the

incident occurred.

2. That, the learned trial judge erred in law and in fact to

convict the appellant basing on retracted/repudiated

confessional statement, Exhibit P4 which is lacking

and valueless as it requires corroborative evidence.

3. That the learned trial judge erred in law and in fact to

hold that Exhibit P4 was corroborated by Exhibit P2

(post mortem report) notwithstanding the fact that

the said exhibit was not proved before the court, since

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it was not listed as the agreed facts at the preliminary

hearing and the medical doctor who had examined the

body of the deceased and prepared the post mortem

report was not summoned for testimony.

The appellant further filed two sets of supplementary memoranda of

appeals which were dropped during the hearing by Mr. Clement Kihoko,

learned advocate who appeared to argue the appeal for the appellant. On

the other side, the respondent Republic was represented by Mr. Yusuph

Aboud, learned State Attorney.

Mr. Kihoko, with the leave of the Court, in terms of Rule 81 (1) of the

Tanzania Court of Appeal Rules of 2019, added one more ground of

appeal, thus:-

1. The learned trial judge erred in law by committing

procedural irregularities in admitting the sketch map,

Exhibit PI and Post Mortem Report, Exhibit P2.

Submitting on the first ground regarding variance between the

Information and evidence, Mr. Kihoko argued that there is variance

between the evidence and the Information on the date the murder

occurred. Highlighting the difference, Mr. Kihoko referred us to the

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Information appearing at page 76 of the record of appeal, specifically on

the Particulars of Offence where it reads that the incident occurred on 7th

January, 2008 and to the evidence of PW5 and PW6 where they both

testified to have witnessed the fracas on 6th January, 2008 at around 21:00

Hours. It was his strong argument that both PW5 and PW6 gave evidence

to the effect that the incident occurred on 6th January, 2008 and not on the

7th January, 2008 as appears in the Information. Therefore, to him, the

variance was fatal and should have been resolved in favour of the

appellant.

When probed by the Court on the substance of the evidence of PW5

and PW6, Mr. Kihoko maintained his stance that there is variance because

even PW1 said, at page 91 of the record of appeal, that he was told by the

appellant that the murder occurred on 6th January, 2008 and further, PW4

said at page 134 line 21 of the record of appeal that he read the police file

regarding the murder that occurred on 6th January, 2008 at midnight

at/about 02:00 Hours.

Moving from ground number one to ground number three that

Exhibit P2 could not have corroborated Exhibit P4 as found by the learned

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trial judge in his judgment at page 236 of the record of appeal, Mr. Kihoko

argued that the postmortem examination report is deficient. He submitted

that a close scrutiny of Exhibit P2 appearing at page 209 of the record of

appeal revealed that it was filled on 11th January, 2008 but signed on 29th

October 2011, three years later. It was beyond Mr. Kihoko's understanding

as to why it took three years for it to be signed after the conduct of

autopsy. For that reason, he said it could not have been relied upon by the

learned trial judge to corroborate the cautioned statement.

On the fourth ground that there was procedural irregularity in

admitting Exhibits PI and P2, initially he challenged the person who

tendered the exhibits but having been alerted that they were tendered

during the preliminary hearing, he abandoned that argument. He instead

argued that the postmortem examination report having been admitted the

appellant ought to have been addressed on his rights in terms of section

291 (3) of the Criminal Procedure Act, Cap. 20 RE 2019 (the CPA). He thus

urged us to expunge it from the record for contravening section 291 (3) of

the CPA.

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Mr. Kihoko concluded his submission by arguing the second ground

that having expunged the postmortem examination report, Exhibit P2 then

the retracted/repudiated confessional statement, Exhibit P4 lacked

corroboration. With that submission, Mr. Kihoko urged us to allow the

appeal, quash the conviction and set aside the sentence imposed to the

appellant.

On his part, Mr Aboud supported the conviction and the sentence

relying on the strong evidence adduced by the prosecution witnesses at the

trial court. On the first ground, he submitted that according to the evidence

nobody witnessed the deceased's death. He added that the evidence of

PW5 and PW6 was to the effect that on the 6th January, 2008 at/about

21:00 hours on their way back home, at Jaba area, they witnessed a fracas

and on the next morning at/around 06:00 hours they saw a body of the

deceased resembling that of the victim who was being strangled the

previous night. It was his submission that with that evidence on record

then if there is variance that variance would be on the time which

according to section 234 (3) of the CPA is immaterial. Therefore, to him the

ground has no merit.

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On the second ground, he submitted that the trial court having

conducted a trial within a trial to ascertain the voluntariness of it and it be

satisfied that it was voluntarily and freely made by the appellant then the

admission of the appellant is the best evidence in the prosecution case. He

supported his submission with the case of Paul Maduka and 4 Others v

the Republic, Criminal Appeal No. 110 of 2007 (unreported) at page 11.

Regarding Exhibit P2, Mr. Aboud readily conceded that after the

admission of the postmortem examination report, Exhibit P2 the trial court

ought to have addressed the appellant on his rights as enumerated under

section 291 (3) of CPA. Failure to do so rendered that exhibit worthless and

ought to be expunged from the record. He observed that even if the

postmortem examination report is excluded from the evidence, the

evidence of PW5 and PW6 established the death of a person beyond a

speck of doubt so the learned trial judge properly convicted the appellant

of murder. At the end, he urged us to dismiss the appeal.

After reviewing the evidence on record and the submissions made by

counsel, we shall begin our discourse on the third ground since counsel for

both sides are in agreement that the trial judge failed to comply with the

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provisions of section 291(3) of the CPA. In disposing this issue, we shall

reiterate to what we stated in the case of Dawido Qumunga v. The

Republic [1993] TLR 120 that:-

"The provisions of section 291 (3) of the CPA are

mandatory and require that an accused must be

informed about his right to have the doctor who

performed the postmortem be called to testify in

order to enable him decide whether or not he wants

the doctor to be called. "

We echoed the above position in the case of Andrea Ngura v. The

Republic, Criminal Appeal No. 15 of 2013 where the appellant in that case

was not informed of his right under section 291 (3) of the CPA to call the

doctor who prepared the postmortem examination report and we said:-

" ......it has also been held by this Court that, the

provisions of section 291 (3) of the CPA are

mandatory and places on the trial court, the duty of

informing an accused person of his right to call the

doctor who prepared the postmortem report to

testify, and that it is only him (the accused) who

can decide whether or not to call him. No one else

can wish away that right, and non compliance was

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fatal...since the post mortem report (Exhibit P2) was

not properly admitted, the same is hereby

expunged from the record"

In this appeal the record shows that the postmortem examination

report, Exhibit P2 was admitted at the preliminary hearing without any

objection from the defence counsel. It is on record that the trial court

having admitted the postmortem examination report did not address the

appellant on his right to call the doctor who performed the autopsy on the

deceased body as mandatorily required by section 291 (3) of the CPA.

Since the provisions of section 291 (3) of the CPA was flouted we hereby

expunge Exhibit P2 from the record.

Having expunged Exhibit P2, we are in full agreement with the

submission made by Mr. Aboud that even though nobody saw the killing of

the deceased there is evidence of independent witnesses, namely PW5 and

PW6. Both PW5 and PW6 witnessed the fight on 6th January, 2008 and the

next morning they saw a dead body of a person whom they recognized as

the one who was involved in the fight on the previous night.

In the case of Mathias Bundala v. The Republic, Criminal Appeal

No. 62 of 2004 (unreported) we observed that it is not the requirement of

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the law that every killing has to be eye - witnessed. Had it been the

requirement then many homicides would remain unsolved. We further

noted that death may be proved by circumstantial evidence even without

the production of the body of the alleged dead person.

Taking into account the evidence of PW5 and PW6, we hold that the

prosecution proved to the hilt that a death of a person occurred and such

death was due to unnatural cause.

We now move to the first ground of appeal that is whether there was

variance between the Information and the evidence adduced at the trial

court. It was the submission of Mr. Kihoko that there is a variance between

the Information and the evidence of PW5 and PW6 in that the Information

alleges that the murder occurred on 7th January, 2008 whereas PW5 and

PW6 said they saw a fight on 6th January, 2008 and the body on 7th

January, 2008. Admittedly, the Information indicates that the deceased

death occurred on 7th January, 2008. But in essence, there is nobody who

witnessed the death of the deceased. The evidence on record is that both

PW5 and PW6 witnessed a person being strangled on the night of 6th

January, 2008.

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For instance, PW5 told the trial court thus:

"...On 06/ol/2008 at/about 21:00 hours I was in

Magomeni Jaba coming from Magomeni Mikumi to

Kigogo. On arrival at Jaba I witnessed a robbery. I

saw with my eyes together with my colleagues,

Ueso Issa and Ramadhani Majigi, on ay to Kigogo,

we saw a fracas in front of us which involved a

person being strangled. The victim was tall and the

assailants were trying to put him under their

control. The victim looked a man of physical

exercise. The assailants were hitting him on his

stomach."

He further said:

"....On 07/01/2008 at/about 06:00 hours on my way

to my place of work, I found a group of people at

the same place where I witnessed robbery the

previous night. I moved closer and saw a dead

person and upon looking at him, I discovered that

he was the same person hwo had been strangled

the previous night"

PW6, on his part, told the trial court that:

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"....06/01/2008 around 21:00 hours I was riding a

bicycle from Ilala to Magomeni to my home. As I

rode at Magomeni Jaba I saw some people

standing. As I moved closer I saw one person being

strangled and other people surrounded him. The

victim was surrounded by 4 people. One of them

was strangling the victim and another one punching

the victim with fists on the abdomen....On

07/01/2008 morning, I left my home to Ilala as I

reached Magomeni Jaba, I found people gathered, I

saw a person lying on the ground. As I moved

closer, I realized he was the same person who was

strangled the previous night at that place. I felt very

bad. "

It follows then that PW5 and PW6 did not witness the deceased's

death. What they saw was the deceased being strangled on 6th January,

2008 at/about 21:00 hours. And that strangled person was found dead on

the next day in the early morning at around 06:00 hours. From their

evidence we gather that the strangled person died between 21:00 hours

and 06:00 hours. In the circumstances, we are satisfied that the strangled

person met his death between 21:00 hours of 6th January, 2008 and 06:00

hours of 7th January, 2008. Although PW4 told the trial court that he read

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from the police case file that the crime occurred on 06/01/2008 night

at/about 02:00 hours but there is no direct evidence on the exact time of

the deceased's death. It is not known at what time the strangled person

met his death. With that in mind then, we are settled in our mind that the

variance if any was in respect of time which according to section 234 (3) of

the CPA, such variance is immaterial. For ease of reference that section

provides:-

"Variance between the charge and the evidence

adduced in support of it with respect to the time at

which the alleged offence was committed is not

materialand the charge need not be amended for

such variance if it is proved that the proceedings

were in fact instituted within the time, if any limited

by law for the institution thereof "

With that clear position, we find that the first ground of appeal lacks merit

and it is therefore dismissed.

We now turn to the complaint regarding cautioned statement. The

learned counsel banked on the findings of the learned trial judge that the

repudiated cautioned statement needs corroboration which corroboration

was found to come from the irregularly admitted postmortem examination

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report. Thus, to him, there is no other corroborative evidence to

corroborate the cautioned statement. It is true that the learned trial judge

convicted the appellant based on his confession statement, Exhibit P4. In

his analysis in trying to ascertain as to whether the confessional statement

could be acted upon to convict the appellant the learned trial judge

correctly held that the trial court has a duty to examine the contents and

assess the weight to attach thereto as we held in the cases of Abdul

Farijala & Another v. The Republic, Criminal Appeal No. 99 of 2008

and Hassan Said Nundu v. The Republic, Criminal Appeal No. 126 of

2002 (both unreported).

Further, in assessing the probity and weight to be accorded to the

appellant's confessional statement, the learned trial judge considered three

things for him to come to a conclusion that the appellant's admission

qualified to be a confession to the offence. One; the appellant's conduct

immediately after the commission of the offence that he changed his

residence to Mabibo. Two; whether there is any corroboration of which he

found that the contents of the postmortem examination report, Exhibit P2

corroborated the contents of the cautioned statement, Exhibit P4. And

three, the appellant's bad character thus he was a man capable of

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committing the offence. These three things made the learned trial judge to

conclude as follows:-

am satisfied thus that, exhibit P4 contains

nothing but a confession to commit the offence and

Iso find."

As a whole, we think that the trial court reached to the correct

findings the confession statement of the appellant was nothing but the

truth. We say so because under section 27 (1) of the Evidence Act, Cap 6

Revised Edition of 2019, a confession made to a police officer is admissible

and may be proved against an accused person, if it is proved that it is

voluntary and lawfully recorded in accordance with the provisions of the

CPA. It was, thus rightly observed by this Court in the case cited to us by

the learned State Attorney of Paul Maduka and 4 Others v. The

Republic (supra) that:

"There is no doubt that a confession to an offence

made to a police officer, is admissible in evidence.

The very best of witnesses in any criminal trial is an

accused person who confesses his guilt. However,

such claims of accused persons having made

confessions should always not be treated casually

by courts of justice. The prosecution should always

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prove that there was a confession made and the

same was made freely and voluntarily. The

confession should have been free from the

blemishes of compulsion, inducements, promises or

even self-hallucinations."

In this appeal, PW3 adduced evidence that the appellant made a

confession statement to him on 27th July, 2008 and he tried to tender it.

However, the appellant repudiated and claimed that he was neither

interviewed nor recorded any statement before PW3. That repudiation

prompted the trial court to conduct a trial within a trial in order to ascertain

whether the cautioned statement was made or made free from the

blemishes of compulsion, inducement, threat, promises or even self

hallucinations. The proceedings of the trial within trial are reflected from

pages 138 to 159 of the record of appeal. The trial court was satisfied that

the confessional statement was made by the appellant. It reached to that

conclusion after noting that the details disclosed therein that could only

have been disclosed to PW3 by the appellant himself. At the end, it

convicted the appellant basing on his freely and voluntary made

confessional statement.

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On our part, we have examined the cautioned statement and we find

that the learned trial judge was correct to come to that conclusion. Indeed,

the appellant gave detailed account on how the deceased met his death.

He described that it was Rashid Niga who strangled the deceased and he

was punching him on his abdomen. He said, they then searched and

robbed from him TZS 250,000. Out of that money, the appellant received

TZS 75,000. Thereafter, they left the deceased lying helplessly at the water

trench where on the next morning he was found dead. Immediately, after

the commission of the crime, the appellant relocated his residence from his

mother's house to his father's house in Mabibo. These details as correctly

observed by the learned trial judge could not have been given by a person

who has not participated in the killing apart from the appellant himself. The

trial court's finding and admission of the cautioned statement has not been

challenged in this appeal. We are accordingly satisfied beyond any

reasonable doubt, as was the learned trial judge that the appellant freely

and voluntarily confessed to the killing of Reuben s/o Erasto. Since the

appellant confessed to the crime then we find no reason to fault his

conviction and sentence.

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In the upshot, we are satisfied that this appeal has no merit. We

accordingly dismiss this appeal in its entirety.

DATED at DAR ES SALAAM this 20th day of May, 2020.

S. A. LILA JUSTICE OF APPEAL

S. S. MWANGESI JUSTICE OF APPEAL

B. M. A. SEHEL JUSTICE OF APPEAL

The Judgment delivered this 21st day of May, 2020 in the presence of

appellant in person via-video conference and Ms Mwanaamina Kombakono

Senior State Attorney for the Respondent/Republic is hereby certified as a

true copy of the original.

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