MT. 7479 SGT. BENJAMIN HOLELA v REPUBLIC 1992 TLR 121 (CA)

 

MT. 7479 SGT. BENJAMIN HOLELA v REPUBLIC 1992 TLR 121 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Ramadhani JA, Mapigano Ag. JA

29 May

Flynote

Criminal law - Murder - Spent cartridges of sub-machine gun found 3 to 4 paces from

D dead body - Whether accidental killing.

Criminal Practice and Procedure - Preliminary hearing - Contents of memorandum

not read and explained to accused - Effect - Section 192(3) of the Criminal Procedure

Act.

-Headnote

The appellant was charged with and convicted of murder and sentenced to suffer E

death by hanging. He appealed against both conviction and sentence. There were two

pieces of evidence which among others, grounded his conviction. The first piece was

contents of a memorandum by which the appellant was said to have admitted under

F section 192(3) of the Criminal Procedure Act, 1985. The contents of the

memorandum were not read and explained to the appellant. The second piece of

evidence was spent cartridges of the appellant's sub-machine gun which were found 3

to 4 paces away from the dead body. The appellant argued that there was a struggle

between him and the G deceased for control of the gun in the process of which two

bullets accidently got discharged and hit the deceased.

Held: (i) Section 192 (3) of the Criminal Procedure Act, 1985 imposes a mandatory

duty that the contents of the memorandum must be read and explained to the H

accused. Since the requirements under section 192(3) were not complied with the

provisions of section 192 (4) of the Criminal Procedure Act cannot apply;

(ii) the fact that the two spent cartridges were found by PW1 to be 3 to 4 paces

from the body of the deceased is consistent with the appellants story that in the

course I of a struggle for control of the

1992 TLR p122

gun two bullets accidentally got discharged and hit the deceased; A

(iii) the appellant has succeeded to raise a reasonable doubt concerning the

shooting evidence.

Case Information

Appeal allowed. B

Magongo, for the appellant.

Kaduri, for the respondent.

[zJDz]Judgment

Nyalali, C.J., Ramadhani, J.A. and Mapigano, Ag. J.A.: The appellant, No. MT C 7479

Set. Benjamin Holela, was charged and convicted in the High Court at Tabora for the

offence of murder c/s 196 of the Penal Code and sentenced to the mandatory sentence

of death by hanging. The proceedings were a retrial consequent upon an earlier order

by this Court declaring the earlier proceedings a nullity and directing a trial de D

novo. The appellant is aggrieved by the decision of the High Court in convicting and

sentencing him. Hence this appeal to the Court. Mr. Magongo, learned advocate,

represented the appellant before us, whereas Mr. Kaduri, learned Senior State

Attorney, appeared for the respondent/Republic. Only one ground of appeal was E

submitted by Mr. Magongo for the appellant. The appellant however, had earlier

submitted three grounds of appeal from jail.

Only one issue is in dispute in this case, and that is whether the appellant shot the

deceased with his sub-machine gun or whether the bullets which fatally hit the F

deceased were discharged accidently from the gun.

It is undisputed between the parties in this case that on the 9th August 1984, one

Paulo s/o Mbigusula got fatally shot with two bullets in Migato Village, Bariadi

District. At the material time, the appellant was a soldier in the Tanzania People's

Defence Forces, G more popularly known by its acronym as T.P.D.F., and was in

charge of militia trainig of villagers in a compaign against rempant banditry in the

area. On the material day, the appellant, accompanied by another soldier, namely,

Private Zacharia Kasubi intercepted a group of people whom he suspected of

banditry. Among this group was the H deceased, together with the second

prosecution witness, namely Makingo s/o Sabila, and the third prosecution witness,

namely, Mazahabu s/o Selesi, hereinafter described simply as PW.2 and PW.3. After

intercepting them the appellant ordered them to return I to Migato Village shops.

Sometimes later, the deceased and two of his companions, took to their heels. The

appellant gave chase

1992 TLR p123

NYALALI CJ, RAMADHANI JA, MAPIGANO AG.JA

to the deceased, at first on foot, and later on bicycle. A

Furthermore, it is not in dispute that the appellant discharged several shots in the air

as warning shots before the deceased stopped, turned round and walked back towards

the appellant, with his arms raised. Soon thereafter, the deceased got shot in the chest

and his left leg. He died on the spot. Subsequently, the appellant sent a written

message to B his District Chief Militia Officer and to the Police Officer In-Charge of

Police Station, Bariadi, in which he made a report concerning the incident. A Police

Officer, that is the first prosecution witness, namely, No. B 6419 Corporal Amatus,

hereinafter described simply as PW.1 visited the village, met the appellant and visited

the scene of the C incident.

With regard to the only issue in this case, it was the prosecution case at the trial that

the appellant shot the deceased dead, after the deceased had surrounded and was

walking back towards the appellant with his hands up. The defence case at the trial

on the D other hand asserts that as the deceased thus approached the appellant, the

deceased suddenly jumped upon the appellant, kicked him and seized the appellant's

sub-machine gun. In the struggle that ensued for control of the gun, two bullets

accidently got discharged and hit the deceased. E

The material evidence on this issue consists of the matters admitted under Section 192

of the Criminal Procedure Act, 1985 together with the testimony of PW.1, PW.2 and

PW.3; as well as the two spent cartridges found at the scene of the incident, and the

message sent by the appellant and which was tendered at the trial as exhibit P.2. F

Let us start with the matters admitted in the preliminary hearing under Section 192 of

the Criminal Procedure Act. Under sub-section (3) it is provided:

G At the conclusion of a preliminary hearing held under this section, the Court

shall prepare a memorandum of the matters agreed and the memorandum shall be

read over and explained to the accused in a language that he understands, signed by

the accused and his advocate and by the public prosecutor, and then filed. (emphasis

supplied) H

It is obvious from those provisions that the contents of the memorandum have to be

read and explained to the accused, and that duty is mandatory. The record of the trial

proceedings however does not indicate compliance with this duty. We take it that

there I was non-compliance.

1992 TLR p124

NYALALI CJ, RAMADHANI JA, MAPIGANO AG.JA

Under sub-section (4) it is provided that: A

Any fact or document admitted or agreed (whether such fact is mentioned in

the summary of evidence or not) in a memorandum filed under this section shall be

deemed to have been duly proved ... B

The question that arised here is whether the above emphasized provisions apply

where there has been a non-compliance as is the situation here. We are settled in our

minds that the above emphasized provisions do not apply where it has been a failure

to read C and explain the contents of the memorandum to the accused.

The necessity to read and explain the memorandum to the accused is highlighted by

the provisions of rules 4 and 6 of the Accelerated Trial and Disposal of cases Rules,

1988 made under section 192 (6) and published under Government Notice No. 192 of

1 D July 1988. Under Rule 4 it is provided:

The person prosecuting shall in every trial under those rules, prepare, as

clearly as possible, the facts of the case which shall be read to the accused and

explained in a E language he can understand.

Under rule (6) it is provided:

F When the facts of the case are read and explained to the accused, the Court

shall ask him to state which of those facts he admits and the trial magistrate or judge

shall record the same.

It is apparent that a statement by counsel or advocate for the accused to the effect G

that the matters raised are admitted is not sufficient under the law. It is the accused

himself who must indicate what matters he or she admits. In cases where the matters

comprise documents, the contents of the documents must be read and explained to

the accused, in the event of a sketch plan or such like documents, the sketch plan

must H be explained and shown to the accused to ensure that he or she is in a

position to give an informed response.

The second piece of evidence consists of the testimony of PW.1 who testified to the I

effect that when he met the appellant, the latter admitted killing someone suspected

of being a bandit. This

1992 TLR p125

NYALALI CJ, RAMADHANI JA, MAPIGANO AG.JA

testimony was challenged under cross-examination by Mr. Mbussa, learned advocate

A for the appellant at the trial. The Defence suggested that the appellant had told

PW.1 that the deceased died by bad luck. Under those circumstances, and bearing in

mind the defence story, the testimony of PW.1 on this point has to be treated with

caution.

The third piece of evidence for the prosecution is the testimony of PW.2 and PW.3 B

who claim to have seen the appellant shoot the deceased as the latter surrendered.

PW.2 claims to have been 60 paces from the incident and to have seen the appellant

shoot the deceased from a distance of about 20 - 30 paces. PW.3 on the other hand

claims to have been about 200 paces from the incident and to have seen the appellant

C shoot the deceased from a distance of 7 paces. We think the testimony of PW.2 and

PW.3 has to be treated with caution, since it is inexplicable how PW.2 and PW.3

came to be so separated from each other at the time they claim to have observed the

incident, in the light of the evidence which suggests that PW.2 and PW.3 stayed

together when D the deceased and two of his companions bolted from the custody of

the appellant.

The fourth piece of evidence for the prosecution on this point is exhibit P.2. That

message reads inter alia:

E "... Majambazi manne tuliyakamata jana tarehe 09 August 84 saa 1530 HRS (.)

wawili (2) kati yao walikimbia (CNA) mmoja tulimfukuza umbali wa kl. mbili na

nusu (.) na tulimpiga risasi na kufa (.) mmoja alitoweka kabisa (.) walibaki wawili nao

walijaribu kutoroka na walinzi usiku walifaulu ... Aliyekufa ni Paulo Mpigisule ..." F

In our view the contents of this message are ambiguous in a material particular.

According to the message, the appellant and some other person or persons shot the

deceased. On the face of it, it contradicts the other evidence adduced by the G

prosecution which suggests that the appellant alone shot the deceased. It is therefore

unsafe to rely on exhibit P.2 without corroboration by independent evidence. Since

we have found that the testimony of PW.2 and PW.3 requires to be treated with

caution, it H cannot be used to corroborate exhibit P.2.

The fifth piece of evidence comprises the spent cartridges found at the scene of the

deceased. This has been a hot point of contention by the appellant, not only in his

evidence at the trial, but also when we allowed the appellant in person to supplement

the I submissions made by counsel on his behalf. We allowed him to do

1992 TLR p126

NYALALI CJ, RAMADHANI JA, MAPIGANO AG.JA

so under Rule 3 (2) of the Tanzania Court of Appeal Rules 1979, on the basis that he

A was being represented on a deck brief and not by counsel of his own choice. The

appellant used the opportunity very well. He argued that had he shot the deceased in

the manner stated by PW.2 and PW.3, the two spent cartridges would have been

found far away from the spot where they were found by PW.1, since cartridges from

a B sub-machine gun of the type in question tend to fall some 3 or 4 paces backwards

from the position of firing the gun. The fact that the two spent cartridges were found

by PW.1 to be 3 to 4 paces from the body of the deceased in consistent with the

appellant's C story.

We think the appellant has succeeded to raise a reasonable doubt concerning the

shooting evidence. It was for the prosecution to show beyond reasonable doubt that

the relative positions of the deceased and the two spent cartridges were consistent

with the deceased being shot by the appellant in the manner described by PW.2 and

PW.3 - D that is, deceased being shot at from the distances stated by PW.2 and

PW.3. This the prosecution apparently failed to do.

Finally, we end with the single ground of appeal contained in the memorandum of E

appeal filed by counsel for the appellant. We do not think that the failure by the

prosecution to call Private Zacharia to testify justifies any adverse inference being

drawn against the prosecution in the circumstances of this case, where there is no

suggestion by the evidence that Private Zacharia was in a better position than PW.2

and PW.3 F regarding the shooting incident.

In the final analysis therefore, we are satisfied, like the two gentlemen assessors who

assisted the trial judge, that the prosecution did not prove its case beyond reasonable

doubt. We consequently allow the appeal, quash the conviction, set aside the G

sentence and direct the immediate release of the appellant from jail unless detained

therein for other lawful course.

H Appeal allowed.

1992 TLR p127

A