IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL APPEAL NO. 194 OF 2004
MARTIN MANGUKU ..…………………..….…
APPELLANT
VERSUS
THE
REPUBLIC ….……..……………….…. RESPONDENT
(Appeal
from the conviction of the High
Court
of Tanzania at Tabora)
(Mwita,
J.)
dated
the 7th day of November, 2003
in
Criminal
Sessions Case No. 10 of 1993
-------------
JUDGMENT
OF THE COURT
28 February & 16
March 2007
MROSO,
J.A.:
A
woman, Koleta Thadeo, and her young child, Lucia Martin, met violent death
together during the night of 6th October, 1991. The husband of the woman, Martin Manguku, was
believed to have murdered them. So, he
was arrested, prosecuted and convicted for the murders. He was sentenced to the mandatory death
sentence. He was convinced, however,
that the law went for the wrong person and has sought to vindicate himself by
appealing to this Court. His advocates,
Kabonde and Magoiga Law Firm (Advocates), filed for him six grounds of
appeal. At the hearing of the appeal Mr.
Kabonde, learned advocate from the Law firm, appeared for him. The respondent Republic was represented by
Mr. Rweyongeza, learned State Attorney.
In urging
the appeal Mr. Kabonde abandoned the second ground and dealt with the remaining
five grounds. He addressed the Court on
each of those grounds. But before allowing Mr. Kabonde to take us through these
grounds of appeal, it may be helpful to give a resume of the evidence which
led to the appellant being convicted for the double murders.
One Bombo
Nyamweri, PW1, claimed in his evidence that at about 9 p.m. on 6th
October, 1991 he and one Emmanuel were going home when they met the appellant
who was with his wife – the deceased, and his child, the second deceased. The appellant greeted Bombo and Emmanuel and
the two proceeded to their respective homes.
The appellant and Bombo were familiar with each other. That was the last time the appellant’s wife
and child were seen alive. The following
day the bodies of the appellant’s wife and child were seen in a field about 200
paces from where Bombo (PW1) claimed to have met the appellant and his family
the previous night.
A ten-cell
leader and neighbour of the appellant, one Ramadhani Tofiki – PW2 – claimed he
saw the police at the home of the appellant and went there. That was on 12/10/1991. He claimed he heard the appellant say in the
presence of the police - “the knife I used to slaughter the deceased
is inside” and then produced from
his house a knife with a white handle.
The appellant further allegedly said he had washed off blood from the
knife. The police were said by the
witness to have seized the appellant’s clothes which were stained with blood.
A Detective
Station Sergeant Raphael Kitambala – PW3 – who was the investigating officer,
visited the scene where the dead bodies lay.
That was on the day after the killings.
The place, a cassava field, was about 50 to 60 paces from the home of
the appellant and that that was the place where the killing was done. The deceased wife had four “knife wounds” and
the deceased child had its throat cut.
About 70 paces away from that scene PW3 claimed he saw a bloody knife
which had been buried with its tip facing upwards. This witness also said he took a caution
statement from the appellant on that same day, 7/10/1991, and that the
appellant denied to have killed his wife and child. In another statement which PW3 took from the
appellant he was then said to have admitted killing the two deceased
persons. Apparently, in this later
statement caution was not administered on the appellant. When objection was raised, PW3 retracted his
intention to tender it as evidence.
This
witness also said in his evidence that when he went to the house of the
appellant and Tofiki (PW2) was present, the appellant produced a knife with a
white handle and said he had used the knife to “slaughter” the deceased
persons. Appellant’s jacket and sandals
both of which were said “to have blood” were some of the things which were
seized from appellant’s house. This
witness said in his evidence – “At the
scene there was blood”. He meant in
the cassava shamba. Then he said again,
referring to the house of the deceased, “There was blood in the accused’s home”. He did not elaborate on whether in either
place there was a lot of blood or just a few drops of blood.
Apparently,
the bloody knife which was found in the field, appellant’s jacket, sandals,
blood sample taken from one of the deceased (not indicated which of the two
deceased), were some of the things which were taken to the Government Chemist
for scientific opinion. Appellant’s
jacket was found to have no blood stains on it; the knife had human blood of
unknown blood group; one of two pairs of sandals was found to have blood of
group ‘O’ type and the blood sample alleged to have been taken from one of the
deceased persons was found to be of group ‘O’. But appellant’s sandals had
group ‘O’ blood stains. Apparently,
according to the Government Chemist’s report, Exhibit ‘D’ which was tendered in
evidence by a Dr. Magembe (PW5), no blood sample was taken from the appellant
for chemical analysis. But PW6 – Abenja
Paulo, a Health Laboratory technician,
took blood samples from the appellant and on analysis found it to belong
to group ‘A’. The report on appellant’s
blood group was tendered in evidence as Exh. ‘E’.
In his defence
before the trial court the appellant denied killing his wife and daughter. He admitted drinking pombe with his wife on the fateful night but denied going home with
her and their daughter. He said that as
his late wife was engaged in the petty business of selling fish at pombe shops
they parted company when she went to other pombe shops to sell fish and he went
to a different pombe shop for more drinks.
He returned home without his wife and daughter and until the following
morning they had not returned home. It
was not unusual for the wife to spend nights at the home of one Agnes if it was
too lake for her to return home. But
when on the following morning his brother in law came to tell him his wife and
daughter had been killed he went to make a report to the police and that was
when he was arrested. He said no sandals
belonging to the deceased wife were found in his house but they were found at
the scene where the dead bodies lay.
It is
querried in the first ground of appeal whether PW1 really identified the person
he claimed was the appellant on the fateful night and whether PW3 corroborated
PW1 on that evidence. Mr. Kabonde argued
the trial judge erred in believing that the evidence of PW1 (Bombo) was corroborated
by PW3 – Detective Station Sergeant Raphael.
Mr.
Rweyongeza conceded that PW3 did not corroborate the evidence of PW1 on his
claim that he met the appellant accompanied by the two deceased persons before
they were killed on the same night.
The trial
court had said that because of moonlight PW1 who was quite familiar with the
appellant recognized him. But the
learned judge proceeded to say –
“Where
identification is done under unfavourable conditions corroboration is required
before such evidence can be acted upon.
In the instant case corroborative evidence is to be found in the
testimony by PW3”
Apparently,
the learned judge found that conditions for reliable identification did not
obtain. That was why he looked for
corroborative evidence and believed he found it in the testimony of PW3. But following the position which the learned
State Attorney took regarding the evidence of PW3, that it did not corroborate
PW1, the doubt which the trial judge had, that the conditions for reliable
identification were unfavourable, remained.
After the
second ground of appeal was abandoned, Mr. Kabonde argued the third ground,
that the trial judge misdirected himself in law when he believed that the oral
statement which the appellant was alleged to have made before PW2 and PW3
amounted to a voluntary confession. It
is Mr. Kabonde’s argument that nowhere did the appellant confess to murdering
the two deceased persons. The statement
imputed to the appellant that he said in the presence of PW2 and PW3 that the
knife with a white handle which was produced from under the bed was “the knife
I used to slaughter the deceased” could not be voluntary. He had been under police custody from 7th
October, 1991 till 12/10/1991, which was six days. A ten-cell leader had been called and other
people were also present. In such
circumstances the appellant could not be said to have been a free agent. Therefore, such piece of evidence should not
have been admitted.
Mr.
Rweyongeza countered that the appellant made no claims that he had been
tortured or forced in any way to make that statement and that a person could
make a confession before or in the presence of civilians. He cited the case The DPP v. Nuru Mohamed Gulamrasul, [1988] TLR 82 as authority.
We think
the issue posed here is not that a suspect could not make a confession before
or to civilians. Rather the issue is
whether the appellant was a free agent when he said the words imputed to
him. As Mr. Kabonde argued, the
appellant had been in police custody for six days. There is no explanation from the police why
they kept him in police custody for all those six days without taking him to
court. Section 32 (2) of the Criminal
Procedure Act, 1985 requires that where a person has been taken into custody
without a warrant for an offence punishable with death, he shall be brought to
court as soon as practicable. It is
noted that in the case of other offences, such a person must be taken to court
within twenty four hours. It is
appreciated that offences which are punishable with death are more serious and the
police may need more time to make basic investigations before taking the
suspect to court, hence the leeway that the police will take such a suspect to
court within reasonable time.
“Reasonable time” will depend on the circumstances of each individual
case.
In the case
under discussion, even in those six days the appellant had not been taken to
court. In the absence of acceptable
reasons for keeping the appellant in custody for the six days up to the time he
made the statement about the knife it must be taken that the police were
holding the appellant unlawfully in custody.
It does not need extra-ordinary thinking to know that the appellant must
have been under very stressful condition.
It will be recalled that PW3 said that when on 7/10/1991 he took a
statement from the appellant, he denied to have killed the two deceased persons. Why would he suddenly say on 12/10/1991 that
he used the knife found in his house to kill the deceased unless some kind of
undue influence was used to induce the making of such a statement.
On
12/10/1991 when the appellant made the admission of killing there was a whole
array of police officers present, the Regional Crime Officer (RCO), the Officer
Commanding District (OCD), the officer commanding CID in the district “and
other police officer” of unknown rank or description. No caution was administered on the appellant
before he made the incriminating statement.
We agree with Mr. Kabonde and we are of the considered opinion that the
appellant was not a free agent at the time he made the impugned statement on
12/10/1991. That statement ought not to
have been used as evidence against the appellant.
There is
another reason in our view why we consider the appellant’s statement about the
knife with a white handle of doubtful truthfulness. The impression being created is that the
appellant killed his wife and child in the house. That was why blood stained sandals alleged to
belong to the deceased wife and her skirt which was thought to be stained with
her blood were among the things which were taken from the house and taken to
the Government Chemist. However, it must
not be forgotten that in the cassava field near where the dead bodies were
found a bloodied knife was found buried in the ground with its sharp tip
protruding and facing upwards. Was that
knife used in the killing of the deceased persons? In other words, what explanation did the
prosecution have about that knife? Was
it proper for the prosecution and the trial court to gloss over that
significant evidence by conveniently avoiding to give explanation regarding
it. When this Court asked Mr. Rweyongeza
about the relevance or otherwise of the knife in the cassava field, he was
candid enough to say there was no explanation regarding it.
With
respect, there are still some important unanswered questions, first whether in
fact it was known with assurance who killed the deceased persons or even
exactly where the killing was committed.
There is no assurance that the statement by the appellant that he used
the small knife with a white handle which was picked from under the bed was
voluntary and true. If it was the
appellant who killed the deceased persons using the knife found in the house,
then who used the knife found in the cassava field? Did the appellant use both knives? If so, why would he confess in respect of a
knife which had no telltale marks and leave the knife with blood stains in the
field?
The
post-mortem examination reports on the wife of the appellant and also the one
on the infant girl both show that there were cut wounds through the neck
involving the oesophagus and the carotid artery and the trachea. Both died from bleeding. Surely in such slaughter blood would have
gushed out heavily staining the clothes of the appellant and flooding the
floor. But there was no such
evidence. Appellant’s jacket which was
believed to have blood stains was found by the Government Chemist to have had
no blood stains at all. Even the
evidence of PW3 that there was blood in the house did not give the impression
that a person or persons had bled to death in the house.
We think
those are some of the things to which the trial court should have given very
careful consideration instead of jumping into hasty conclusion that the
appellant had confessed to murdering his wife and infant daughter.
With
respect, with such circumstances and questions begging for answers the trial
court should have found that the guilt of the appellant had not been
demonstrated beyond a reasonable doubt and should have acquitted him.
We allow the
appeal by quashing the conviction and setting aside the sentence. The appellant is to be set free forthwith
unless he be held for some other lawful cause.
DATED AT MWANZA this 16th day
of March, 2007.
D. Z. LUBUVA
JUSTICE
OF APPEAL
J. A. MROSO
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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