Janta Joseph Komba & 3 other v. Republic, Cr no 95 of 2006 (Murder case)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: LUBUVA, J.A., KAJI, J.A. AND KILEO, J.A.)

CRIMINAL APPEAL NO 95 OF 2006

BETWEEN

JANTA JOSEPH KOMBA

    ADAMU OMARY

SEIF OMARY MFAUME

CUTHBERT MHAGAMA

AND

THE REPUBLIC

(Appeal from the decision of the Resident Magistrate’s Court at Kisutu [Hon N. P. Kimaro, PRM.] Extended Jurisdiction)

Dated the 17^th day of July 2000

In

Criminal Session Case no 8 of 1999

------------------

JUDGMENT OF THE COURT

05 December 2006 &

KILEO, J.A.:

The appellants, Janta Joseph Komba, Adamu Omary, Seif Omary Mfaume and Cuthbert Mhagama, were charged with, and convicted of murder, and were sentenced to the mandatory sentence of death by hanging.

According to the evidence that was led at the trial, the deceased, Mwalimu Hamisi Omari, @ Teacher, was a driver who used to drive a pickup for hire. On the fateful day, which was October 30^th 1990, the deceased had parked his motor vehicle at Ilala Boma, Dar es salaam. A few hours before he met with death he was hired by two people. The motor vehicle was found sometime later abandoned at Old Kigogo road with bloodstains inside. The deceased was found lying near a river seriously wounded. Shortly, he succumbed to the wounds and died. Post-mortem examination report showed that he died of haemorrhagic shock following bullet injury.

There were no eyewitnesses to the commission of the crime and the people who hired the deceased were not identified. The conviction of the appellants was therefore based on their confessions, which were retracted.

The case against the first appellant, Joseph Janta is contained in the testimony of PW2. This witness arrested the 1^st appellant. His evidence is to the effect that the appellant was found in possession of a motor vehicle that contained two shotguns. The arrest was made on 5/11/1990. Pw2 handed this appellant over to Pw1, Senior Superintendent of Police Paulo Kikoti. After interrogating him, SSP Kikoti directed that he be charged with unlawful possession of firearms. It appears that he was charged as directed by SSP Kikoti but he was absolved of the charges relating to possession of firearms. It is also on record that he was taken to a justice of the peace though this appellant’s statement to the justice of the peace was never tendered in court. On 9/11/1990 PW7, Superitendent of Police Mwanzi recorded his cautioned statement.

The second appellant, Adamu Omary, was arrested on 16/12/1990. He and the fourth appellant, Cuthbert Mhagama, were, according to the testimony of Pw4, arrested on suspicion of having killed the driver of DAHACO. The witness testified further that the appellants told them that they had some weapons, which they had hidden in a toilet.

The third appellant, Seif Omary Mfaume was arrested on 16/12/1990. His cautioned statement was taken on 17/12/1990. According to Pw3, D/Sgt. Charles, who is the officer who arrested this appellant, the third appellant was pointed out to him by the second appellant.

At the hearing of the appeal Janta Joseph Komba, first appellant Adamu Omary, second appellant and Seif Omary Mfaume, third appellant were represented by Mr. Rweyongeza, learned advocate. Mr. Kalolo Bundala, learned advocate, represented Cuthbert Mhagama fourth appellant and Ms Neema Mwanda, learned State Attorney, represented the Republic.

The joint memorandum of appeal for the 1^st, 2^nd and 3^rd appellants contained two grounds of appeal while the memorandum of appeal of the 4^th appellant contained three grounds. All the grounds of appeal, as submitted by Mr. Rweyongeza, can be condensed into one main ground; that the conviction was wrongly arrived at as it was based on retracted confessions, which lacked corroboration.

Mr. Rweyongeza argued that in order for the confessions of the appellants to be taken as a basis for their conviction it was necessary for the prosecution to establish without any shadow of doubt that the statements were voluntarily made. The learned counsel went on to argue that the circumstances, which led to the making of the statements, rule out the possibility of the statements having been made voluntarily. Submitting on behalf of the 1^st appellant, Janta Joseph Komba, he pointed out that he was arrested on 5/11/1990 and stayed in custody for four days before his statement was taken. The learned counsel submitted that the four days that the first appellant spent in custody resulted in mental torture apart from the physical torture that he was subjected to.

Mr. Rweyongeza submitted further that because the statement of this appellant was taken contrary to the procedure laid down for obtaining statements of suspects, then it ought not to have been taken into account. Counsel referred to section 169 of the Criminal Procedure Act in support of this argument. As for the second appellant, Mr. Rweyongeza pointed out that there was no evidence tendered which connected him with the commission of the crime apart from being mentioned in the cautioned statement of the third appellant.

Regarding the third appellant, the learned counsel argued that his cautioned statement was wrongly admitted. The finding by the trial court that there were incidences where accused persons admit commission of the offence notwithstanding the seriousness thereof, was challenged as being a generality which cannot apply when it comes to the proof of a particular criminal case.

Mr. Rweyongeza further argued that in order for a court to find that a statement was made voluntarily on the basis of details given in the statement, the details must be in relation to the commission of the crime itself and not details relating to the life of the accused like his date and place of birth, and the schools he went to.

The learned counsel made reference to the book titled: Desai’s Law Relating to Confessions and Dying Declaration by J.C. Desai at pg 273-274,281 in support of his argument that the evidence of cautioned statement or extra judicial statement is generally weak piece of evidence.

Mr. Kalolo Bundala for the fourth appellant argued that the circumstances under which the extra judicial statement was taken were such that it could not be said that the appellant was a free agent when he made the statement. The learned counsel pointed out that his client was kept in custody for 15 days before he was taken to a justice of the peace. Counsel also argued that it was not proper to find that the retracted confession of the 4^th appellant was corroborated by the evidence of Pw4 because the criteria for what constitutes corroboration was not met. The learned counsel argued that in order for a retracted confession to be acted upon it had to be corroborated by independent evidence connecting the accused with the crime. In support of this submission Mr. Kalolo Bundala referred to the cases of Makungu v.R [2002] 2 E A 482 and Waswa & Another v. Uganda [2002] 2 E A 667  decided by the Court of Appeal of Kenya and the  Supreme Court of Uganda respectively.. The Supreme Court of Uganda agreed with the English case of Republic v Baskerville [1916-17] All. ER rep 38 in which it was held that; “evidence in corroboration must be independent testimony, which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him – that is which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.” 

 The learned counsel also made reference to the cases of Rex v. Aryato d/o Ochulura [1936] EACA, Vol.III, Part II, pg 120 and Rex v. Opet s/o Erui, [1936]. EACA, Vol.III, Part II, pg.122. In these cases it was held that a retracted confession cannot be corroborated by other retracted and uncorroborated confessions.  

Ms Neema Wanda for the respondent Republic supported conviction and argued that the appellants’ confessions were so detailed that they could be nothing but the truth. She referred to the case of Hemed Abdallah v. Republic [1995] T L R 172 in support of her argument.

Admittedly, the case for the prosecution was largely based on the appellants’ confessions.  The main question before us is, given the circumstances of this case can it be said that the cautioned and the extra judicial statements of the appellants were voluntarily given?

In terms of section 27 of the Evidence Act, 1967 a confession voluntarily made to a police officer by a person accused of an offence may be proved as against that person. The onus of proving that any confession made by an accused person was voluntarily made by him lies on the prosecution. Section 27 provides further that a confession shall be held to be involuntary if the court believes that it was induced by any threat, promise or other prejudice held out by the police officer to whom it was made or by any member of the Police Force or by any other person in authority.

Dealing with the question whether the statement of the first appellant was voluntary the learned trial Principal Resident Magistrate with Extended Jurisdiction, held;

“In my ruling in the trial within trial I said that the question of voluntariness of the statement was an afterthought. Although the first accused said he was tortured for three consecutive days and that he was given a PF.3 for treatment, the treatment, which he received, did not match with the extent of the injuries he said he suffered. The statement was recorded on 9/11/90. He was referred to hospital on 14/11/90 and the PF.3 shows that he was referred to hospital for treatment of a wound. The PF.3 shows that the wound was only treated with spirit. This is an medication that it was, just an injury which could as well have occurred after he recorded his statement or it was a move taken for precautionary purposes after realizing the effect of his confession.”

We think that a lot of what is stated as above by the learned trial Principal Resident Magistrate with Extended Jurisdiction was speculation. There was no basis for thinking as she did, that the injury, which was sustained by the appellant, could as well have occurred after he recorded his statement or that it was a move taken for precautionary purposes. Conviction in a criminal matter must be based on good ground and speculation has no room. The burden is on the prosecution to prove beyond reasonable doubt, that the accused committed the offence with which he is charged.

We agree with learned counsel for the appellants that being in police custody for a period beyond the prescribed period of time results in torture, either mental or otherwise. The legislature did limit the time within which a suspect could be in police custody for investigative purposes and we believe that this was done with sound reason.

The relevant provisions dealing with the time under which a suspect may be held in police custody for investigation purposes are sections 48-51 of the Criminal Procedure Act, Cap 20 of our laws [2002 RE].

Section 48 provides as hereunder;

 

        (1) Where a person is, or has been, under restraint in respect of an offence, a police officer may–

        (a)   ask the person questions; or

        (b)   take other investigative action,

in connection with the investigation of the offence, during a period available for interviewing the person but not otherwise.

        (2) The provisions of this Act relating to a period available for interviewing a person shall not be taken–

        (a)   to make lawful the holding of the person under restraint during any period during which it would, but for those provisions, be unlawful to hold him under restraint; or

        (b)   to authorise the asking of any questions or the taking of other investigative action in relation to the person during a period during which it would, but for those provisions, be unlawful to hold him under restraint.

Section 50 provides for periods available for interviewing persons and it states as follows;

        (1) For the purpose of this Act, the period available for interviewing a person who is in restraint in respect of an offence is–

        (a)   subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence;

        (b)   if the basic period available for interviewing the person is extended under section 51, the basic period as so extended.

Where custodial investigation cannot be completed within four hours the law allows extension of the time under certain circumstances as provided for by section 51, which states thus:

        (1) Where a person is in lawful custody in respect of an offence during the basic period available for interviewing a person, but has not been charged with the offence, and it appears to the police officer in charge of investigating the offence, for reasonable cause, that it is necessary that the person be further interviewed, he may–

        (a)   extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; or

        (b)   either before the expiration of the original period or that of the extended period, make application to a magistrate for a further extension of that period.

It is apparently clear from the above provisions that the first and fourth appellants were held in investigative custody for much longer than the time that is provided for by the law. The first appellant was held in custody for four days. No application was made to a magistrate for extension of the period of twelve hours under which the police could hold him in custody. The fourth appellant was held in police custody for 15 days. In the circumstances, the appellants having been held in police custody for such long period it is doubtful that the appellants were free agents when they finally made their statements. The legislature must have had good reason for limiting the time under which a suspect could be held under police custody for investigative purposes and the police are obliged to abide by the law like every one else. The obtaining of the statements of the appellants while still in custody outside the time provided under the law for investigative custody, contravened the provisions of the law.  Section 169 of the Criminal Procedure Act provides for exclusion of evidence illegally obtained. It provides:

        (1) Where, in any proceedings in a court in respect of an offence, objection is taken to the admission of evidence on the ground that the evidence was obtained in contravention of, or in consequence of a contravention of, or of a failure to comply with a provision of this Act or any other law, in relation to a person, the court shall, in its absolute discretion, not admit the evidence unless it is, on the balance of probabilities, satisfied that the admission of the evidence would specifically and substantially benefit the public interest without unduly prejudicing the rights and freedom of any person.

        (2) The matters that a court may have regard to in deciding whether, in proceedings in respect of any offence, it is satisfied as required by subsection (1) include–

        (a)   the seriousness of the offence in the course of the investigation of which the provision was contravened, or was not complied with, the urgency and difficulty of detecting the offender and the urgency or the need to preserve evidence of the fact;

        (b)   the nature and seriousness of the contravention or failure; and

        (c)   the extent to which the evidence that was obtained in contravention of, in consequence of the contravention of or in consequence of the failure to comply with the provision of any law, might have been lawfully obtained.

        (3) The burden of satisfying the court that evidence obtained in contravention of, in consequence of the contravention of, or in consequence of the failure to comply with a provision of this Act should be admitted in proceedings lies on the party who seeks to have the evidence admitted.

        (4) This section is in addition to, and not in derogation of, any other law or rule under which a court may refuse to admit evidence in proceedings.

The prosecution did not show how the admission of the appellants’ statements in the circumstances of this case would “specifically and substantially benefit the public interest without unduly prejudicing the rights and freedom of any person.”

We believe that if the learned trial Principal Resident Magistrate with Extended Jurisdiction had considered the import of the above provisions she would have found, not only that the statements were obtained without adhering to the procedure laid down by the law, but also that the statements of the appellants were not voluntarily given. She would therefore have found the statements inadmissible.

The other reason that the trial court gave for finding that the statement of the first appellant was voluntary was that it was a detailed one that could only be given by the appellant. Details of date of birth, village, schools attended were among the details that were found to be only to the knowledge of the appellant. The learned trial Principal Resident Magistrate with Extended Jurisdiction also made reference to the explanation on how the motor vehicle with registration no TZA 2442 Toyota Corolla was acquired. This motor vehicle was allegedly found to contain two shotguns.

It is common knowledge that in order for a confession to be found voluntary on the basis of having contained detailed information, such detailed information must be in relation to the particular crime itself and not to the history of the accused person. In the instant case it is our view that details relating to how the motor vehicle registration no TZA 2442 was acquired is not directly connected to the commission of the crime in issue.

It is also our view that the learned trial Principal Resident Magistrate with Extended Jurisdiction misdirected herself when she found that the evidence of PW4 corroborated the testimony of the fourth appellant who was the second accused at the trial.  She was of the view that the evidence of Pw4 corroborated the confession of the fourth appellant because he arrested them and they led to the recovery of the weapons. It is to be noted that the weapons that were allegedly found at Majumba Sita were not proved to have been used in the commission of the crime that the appellants were faced with. There was also undisputed evidence that the second appellant Adamu Omary was charged with possession of the weapons but was subsequently acquitted. In her judgment the trial magistrate observed that, “the mere fact that he was charged with possession of firearms and acquitted does not mean that he did not participate in the commission of the offence he is charged with.” This observation may generally be fine, however the trial magistrate had also earlier on found corroboration in the fact that the appellants had led the police to the recovery of the weapons. There is, we think, a contradiction in the approach that was adopted by the trial court.

We have stated earlier that the weapons that were allegedly recovered were not proved to have been the murder weapons. For this reason it follows that even if it is granted that the appellants led to the discovery of the weapons, this would not reinforce the case against the appellants, the weapons had nothing to do with the crime, the subject of the charge. Moreover, in view of the acquittal of the 2^nd appellant of unlawful possession of firearms, the evidence of Pw4 that the 2^nd appellant led them to the recovery of the weapons is doubtful. The second appellant appears to have been charged because he was mentioned in the 4^th appellant’s extra judicial statement. The 4^th appellant’s extra judicial statement, which was retracted, could not be relied upon because it needed corroboration itself.

As held by the Supreme Court of Uganda in the case of Waswa, (supra) we agree with the test for corroboration laid down in the English case of Republic v. Baskeville [1916-17] All. ER rep 38 (supra). When put to the test, the evidence of Pw4 does not stand. We find that it was not proper, in the circumstances, to hold that the evidence of Pw4 corroborated the retracted confessions.

In the light of the above considerations  we are constrained to agree with M/S Rweyongeza and Kalolo Bundala, learned counsel for the appellants that there is merit in this appeal. Consequently we allow the appeal, quash the conviction and set aside the sentence of death imposed. We order the release from custody of the appellants forthwith unless otherwise held lawfully.

DATED AT DAR ES SALAAM this …..…day of………………2007.

D. Z. LUBUVA

JUSTICE OF APPEAL

S. N. KAJI

JUSTICE OF APPEAL

E.A. KILEO

JUSTICE OF APPEAL