GERVAS KILONGOZI v REPUBLIC 1994 TLR 39 (CA)

 

GERVAS KILONGOZI v REPUBLIC 1994 TLR 39 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Omar JJA, Mnzavas JJA and Lubuva JJA

CRIMINAL APPEAL NO. 141 OF 1993 B

25 March, 1993

(From the conviction and sentence of the High Court of Tanzania at Moroqoro

Kyando, J) C

Flynote

Evidence - Confession - Admissibility - Confession to a police officer of unknown

rank - whether admissible - sections 27(1) and 3 of the Evidence Act, 1967.

-Headnote

The appellant was charged with and convicted of murder. The trial court based the

conviction on a D confession which the appellant made to a police officer whose

rank was not shown on the evidence. On appeal the conviction was challenged as

being based on inadmissible evidence.

Held:

(i) We are satisfied that there is nothing to show that the police officer to

whom the appellant E made the confession was of the rank required under s 3 of the

Evidence Act, 1967;

(ii) In the circumstances the confession was inadmissible in evidence;

(iii) The prosecution has not proved its case beyond reasonable doubt.

Case Information

Appeal allowed.

No case referred to. F

JI Rutabingwa, for the appellant.

M Kamba, for the respondent.

[zJDz]Judgment

Omar, JA, delivered the following considered judgment of the court: G

The appellant Gervas Kilongozi was charged with and convicted of murder c/s 196 of

the Penal Code.

The prosecution evidence is very scanty and mostly hearsay. PW2, Assistant Inspector

Elias Madata of Mang'ula Police Station, was awakened at night and informed that

there was an injured person at H the police station. He went there and found one

Michael Mkalawa had been injured on the head. He gave him a PF3 to take to

hospital. He also directed one Detective Corporal Jafari to take down his statement. In

this statement Mkalawa said that the appel- I

1994 TLR p40

OMAR JA

A lant went to his house at night and knocked, when he opened the door he was

attacked but he managed to escape, but he feared for the girl who was living in his

house because he, Mkalawa, saw the attacker entering her room. So PW2 took a

militiaman one Adriano Mkiwa and a ten cell leader B Simon Peter, also Abdu

Mshinde and Sadon Mwinyikaule, these last two are relatives of the deceased Mariam

Theophil and Mkalawa. Outside the house of Mkalawa they found Mariam lying face

downwards with a head injury; she was already dead. The child of the deceased

Zamoyoni Lucas appeared from inside the house and told PW2 that his mother was

killed by his stepfather C Gervas Kilongozi the appellant. Mkalawa has not given

evidence because he died before hearing of this case. The daughter of the deceased

also did not give evidence because she was too young to understand the nature of oath

and the truth and falsehood of evidence. The learned Trial Judge D disqualified her

from giving evidence. The rest of the people who went with PW2 to the house of

Mkalawa were not called to give evidence.

PW3, Aloys Kilongozi, the father of the appellant, was taken from his house on the

same night by PW2, Assistant Inspector Madata, and was asked to show him where

his son was, so Aloys took E him to a house where a person called Majengo

accommodated his son the appellant. The appellant was found in this house and he

was taken to the police station with his father PW3 and were locked in. The

following morning both were taken out of the lockup. PW3, the father of the

appellant, was F informed by PW2 that his son had killed a woman. Then they were

put in custody again. The third day they were transferred to Ifakara Police Station

where the appellant was interrogated and according to PW3's evidence appellant

admitted killing his fiancee. PW3 remembered standing surety for the appellant in a

case in which he was charged for assaulting his fiancee and on Thursday the fiancee

went to the Court and complained that he was a threat to her and wanted his G bail

cancelled. PW3 wanted to withdraw himself as a surety but the Court refused this

request and the same night Inspector Madata went to his house asking him to show

where his son the appellant was as he was wanted for the killing. When PW3 was

cross-examined by one of the assessors he H said:

`Accused confessed to me and very voluntarily and clearly that he had killed.

He so confessed while we were only three, himself, the Incharge CID and myself. He

confessed that he had killed.'

I PW4, Sgt Samoyoni, stated that he was stationed at Mang'ula

1994 TLR p41

OMAR JA

Police Station, Kilombero District and that he knew earlier of the case of the

appellant when he A assaulted the same deceased and a case file was opened on 14

February 1989 and he was granted bail by the Primary Court while on bail, the victim

of the attack Mariam Theophil went to court and complained that the appellant was

going to her house to threaten her. She asked for cancellation of his bail. PW3, Aloys

Kilongozi, was appellant's surety. On 18 February 1989 he (PW4) reported for B

work at the police station only to find that the same person had been arrested for

killing Mariam Theophil.

The appellant in his defence admitted to have told one junior Police Officer Raphael

that he had assaulted deceased at a pombe club. He went on to say that his confession

was after he had been C beaten with a club several times and was even told by

Raphael that a person had died during interrogation. So he had to admit the offence of

assault to save himself from further torture. His father PW3, the appellant said, was

with him in the lockup and he cooked up this story of his son D confessing to the

murder of Mariam merely to be released from custody. And he was actually released.

The appellant denied injuring Mkalawa nor did he know that Mariam was living in

Mkalawa's house because they had separated for quite sometime. As for wanting his

bail to be cancelled that was merely because she was unhappy with his release from

custody. He concluded by saying that E she wanted to see him in prison rather than

a free man.

Mr Rutabingwa, learned counsel for the appellant, submitted that the evidence

adduced by the prosecution in support of the charge against the appellant was

insufficient. He said that the whole F case against the appellant was wholly based on

the confession of the appellant to a police officer whose rank is not shown on the

evidence. He submitted further that while s 27(1) of the Evidence Act 1967 provides

for the confession voluntarily made to a police officer by an accused person, there was

no evidence to show that the police officer involved was of the rank required under s

3 of the G Evidence Act 1967. For that reason, Mr Rutabingwa submitted that the

validity of the confession was doubtful. Secondly, Mr Rutabingwa argued that as the

witness who was present at the time when the appellant made the confession to PW3

did not give evidence in court the evidence of PW3 is H suspect. Thirdly, Mr

Rutabingwa submitted that since the only person present during the killing was a

child of tender age, who was disqualified by the court from giving evidence, there is

no evidence to support that of PW3. He urged the court to allow the appeal.

Mr Kamba, learned State Attorney for the Republic, respondent I

1994 TLR p42

OMAR JA

A did not seek to support the conviction for the following reasons: Firstly, one of

the witnesses who witnessed the incident was disqualified to give evidence because of

his tender age and the other one (Mkgalawa) had died. Secondly, Mr Kamba

submitted that there were serious irregularities pertaining to the confession of the

appellant to the police officer. The police officer concerned did not come to B testify

and that it is not certain as to the rank of the police officer. Mr Kamba submitted that

the whole case had no leg to stand on. For these reasons, he did not support the

conviction.

We have examined the submissions by both the learned counsel very closely. With

respect, we are C in agreement with the submission of the learned counsel for the

appellant and the learned State Attorney for the Republic that the case against the

appellant was entirely based on the confession of the appellant to the police. Upon

close examination of the evidence, we accept the submission of the D Counsel that

the confession is fraught with very serious discrepancies. The confession does not in

our view comply with the provisions of s 27 and s 3 of the Evidence Act 1967. These

provisions provide:

E `27(1) A confession voluntarily made to a police officer by a person accused of

an offence may be proved as against that person.

(2) . . .

(3) . . .

Section 3:

F "`Police Officer" means any member of the Police Force of or above the rank

of Corporal.'

From the evidence, we are satisfied that there is nothing to show that the police

officer to whom the appellant made the confession was of the rank required under s 3

of the Evidence Act 1967. The G officer may well be of the rank below Corporal in

which case, the confession would not be admissible. It is therefore, a confession

which, in the circumstances, is not admissible under the law. If the police officer

involved had given evidence in Court, the position would have been clarified. This

was not done in this case. Consequently, we are in agreement with the learned

counsel that the H prosecution case still left much to be desired.

In the result we find that the prosecution has not proved its case beyond reasonable

doubt. We allow the appeal and order that the appellant be released from custody

forthwith unless he is otherwise I lawfully held.

1994 TLR p43

A