Court name
Court of Appeal of Tanzania

Mt. 7479 Sgt. Benjamin Holela vs Republic () [1992] TZCA 19 (29 May 1992);

Law report citations
1992 TLR 121 (TZCA)
Media neutral citation
[1992] TZCA 19

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

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.

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

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

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.

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