Court name
Court of Appeal of Tanzania

Gervas Kilongozi vs Republic () [1993] TZCA 2 (25 March 1993);

Law report citations
1994 TLR 39 (TZCA)
Media neutral citation
[1993] TZCA 2

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

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

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

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.

A
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