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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CRIMINAL SESSION CASE NO. 10 OF 2023 REPUBLIC VERSUS 1. JOHN S/O MASHAKA SIGANI @ CASTORI 2. STEVEN JOSEPH MMBANDO JUDGMENT 07/03/2024 & 20/03/2024 SIMFUKWE, J. The accused persons John Mashaka Sigani @ Castori and Steven Joseph Mmbando stand charged with the offence of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E 2022. The accused persons are alleged to have jointly and together murdered one Elizabeth Bernard Shayo on 10/09/2021 at Kilema area, within Moshi District in Kilimanjaro Region. Both accused persons pleaded not guilty to the charge. In proving the charge against the accused persons, the prosecution called six witnesses and produced three exhibits. The accused persons defended themselves on oath. 1 During the trial, Mr. Philbert Mashurano, Ms Angela Mshana and Ms Ruth Kamora learned State Attorney appeared for the Republic, Mr. Pius Ndanu learned counsel defended the first accused while Mr. Engelbert Boniface learned counsel defended the second accused. PW1 Sudi Mohamed a Medical Doctor testified inter alia that he was stationed at Himo Health Centre. In September 2021 he was stationed at the same station. He had a working experience of five years. On September 2021 he was working at the Out- Patient Department (OPD). His responsibilities included treating patients and dissemination of health issues. On 14/9/2021 in the afternoon PW1 was at Himo Health Centre continuing with his duties. While at work one police officer who introduced herself as CPL Neema went there. After introduction, she informed him that there was a death incidence which occurred at Gona River. She required PW1 to accompany her to the scene of crime. At Gona River they found the body of the deceased covered with a Khanga and leaves of the tree. The said police officer went with a Post Mortem Examination form. They took off the Khanga and leaves. Then, the relatives of the deceased identified the body of the deceased. The relatives were Felix Peter Temu and Modesta Temu. After the identification of the body of the deceased PW1 started the examination. The body had started rotting, thus it had Magots. It was a body of an adult female person of African origin. The external appearance was that it had rotten and Magots were coming from eyes, stomach and private parts. PW1 continued to state that, after inspection, the second stage was update. He said that there were bruises on the right side of the waist. 2 There were wounds on the mouth, chin, and head. The nature of the wounds, showed that they were caused by a sharp object. After examination, he went back to his office to prepare the examination report. PW1 discovered that the cause of death was severe haemorrhage from the wounds. He handed over the report to Coplo Neema and proceeded with other duties. PW1 identified the report which he had prepared through his handwriting, signature, his roll number MCT 1275 and the seal of Himo Health Centre Medical officer. He prayed to tender it as exhibit. It was admitted as exhibit P1. PW2 Ms Modesta Felix Limoyi a resident of KDC kwa Alphonce stated among other things that on 11/9/2021 at night she was at home when she received a phone call from Lilian Benard who informed her that her mother Elizabeth Benard was missing. That the said Lilian said that her mother was missing since 10/9/2021. On 12/9/2021 in the afternoon PW2 went to Himo to her auntie Elizabeth Benard. She found the children of Elizabeth Bernard. They informed her that they tried to find Elizabeth all over the place, even in the bushes but they did not find her. On 14/9/2021 in the afternoon, while at work PW2 received a phone call from the husband of Lilian who informed her that Lilian the daughter of Elizabeth was crying. PW2 left and headed to Himo. While on the way at the bridge, she saw many vehicles. She dropped from the vehicle and headed to the scene. She heard people saying that she was found at the river. She went to that river and found the body covered with cloth and leaves. After few minutes, Police officers went there with a doctor. Prior to examination, the body was uncovered and they were required to 3 identify it. PW2 identified the said body to be of Elizabeth. After conducting an autopsy, they were allowed to bury that body. PW3 Mr. Dismas Sabbas Kessy a resident of Himo testified inter alia that he was staying with his auntie Elizabeth Shayo and her worker (houseboy) John Mashaka a shepherded of goats. On 10/9/2021 at about 20:00hrs he was at work at Himo bus stand. When he went back home John told PW3 that his auntie had gone to Himo to buy medicine. PW3 made follow up to the hospital where his auntie used to go, but he did not find her. He went back home; he did not find her. Next morning on 11/9/2021 PW3 took tea and bites and went to Faraja Hospital to check if his auntie was admitted there, he did not find her. He went back with his tea. PW3 testified further that, on 14/9/2021 in the afternoon he was grazing goats. Goats went to the gorge, while making follow up he saw a body of a human being. He went home and informed Joseph the son of his auntie. Then, they reported to the police station. Police officers went at the scene and found that it was the body of PW3’s auntie. The doctor conducted an autopsy and required them to bury the body. PW3 informed the court that, John was not seen from early in the morning of that day PW3 concluded his testimony by identifying John who was the shepherd of goats of his auntie. He said that he never had grudges with him. PW4 WP 6346 D/CPL Neema a police officer at Criminal investigation department stationed at Mburahati Police stationed in Magomeni District in Dar es Saalam Region; testified that on September 2021 she was stationed at Himo police station within Moshi District in Kilimanjaro Region. She was working at the Criminal investigation Department. Her 4 responsibilities included arresting criminals, interrogating criminals, investigation, taking suspects to court and keeping criminal record. PW4 stated that on 14/9/2021 in the afternoon she was at Himo police station. She recalled that she was called by the OCCID of Himo one ASP Nikolao. The OCCID required PW4 to prepare statement papers, Post Mortem order and communicate with the doctor of Himo Health centre. He also required PW4 to prepare other police officers for going to the scene of crime where there was a body of a human being which was recovered along Gona River at Himo. PW4 complied to the directives then, they headed to the scene of crime. At the scene of crime, they found a body along/beside Gona River. It was covered with a kitenge and tree leaves which were on the Kitenge cloth. They proceeded to record the statements of the relatives of the deceased who were there. Due to the reason that the body had started rotting, they waited the doctor for conducting a post mortem. After the arrival of the doctor, they required two relatives to identify the body of their deceased that is Modesta Felix and Felix Shayo. After identification the doctor proceeded to conduct the post mortem. After the post mortem examination, the body was handed over to the relatives for burial. Thereafter, PW4 drew the sketch map of the scene of crime. Also, they continued to interrogate the relatives of the deceased in order to know the cause of that tragedy. Almost every relative alleged that he/she came after being information that their mother was missing. Further, PW4 wanted to know who was staying with the deceased. Children of the deceased informed them that their mother was staying with a house boy. They asked them where was that houseboy? They replied that they had 5 not seen him since morning of that day. Then, they went back to the police station to report to the OCCID. PW4 continued to state that she knew only one name of the said houseboy of the deceased- Castory. She was informed that the deceased was called Elizabeth Benard Shayo. On the same day on 14/9/2021 she handed over the case file to the OCCID. It was Himo/IR /3098/2021 which concerned Murder. The suspect was the houseboy who was staying with the deceased, because on the fateful day he disappeared mysteriously. That’s why they suspected him. After being assigned the case file, PW4 received a phone call from the informer who prayed not to be mentioned. He told her that the houseboy of Mama Kamamaa (the deceased) whom they were looking for, was seen at Himo Bus stand early in the morning on 14/9/2021. He saw him with a school bag at Himo Bus stand boarding Shabiby Bus at 06:00hrs. The said bus was from Rombo on the way to Dodoma. After she had received that information, PW4 informed her leader Afande Nikolao. Then, she went to Himo Bus stand. She found the agent of Shabiby bus and required him to give her the name of the driver of that bus which was on its way to Dodoma. The agent gave PW4 the phone number of the conductor of Shabiby bus. PW4 made a phone call to the conductor who gave the phone to the driver. She asked the driver whether there were passengers who had boarded the bus at Himo. The driver admitted that there were passengers who had boarded the bus at Himo. PW4 asked him whether there was a youth between the age of eighteen to twenty-one who had boarded the bus. The informer had described the clothes which the said house boy had wore. PW4 told the driver that the said boy had wore a 6 trouser which looked like a combat with red and grey colour. They replied that the said person was in the bus. PW4 asked the driver whether he was near any police station, the driver said that he was near Chemba police station within Chemba District. She requested him to take that suspect to the police station and drop him. They dropped the suspect at Chemba police station within Chemba district in Dodoma Region. PW4 requested the in charge at the CRO so that she could speak to the OCS. She informed the OCS that that person was suspected to have committed the offence and he was escaping. She requested him to keep that person while they were arranging how to take him. Thereafter, PW4 informed Afande Nikolao who communicated with the OCCID of Chemba police station. Then, PW4 was ordered to go to Chemba to take the suspect. It was on 14/9/2021. She arrived at Chemba early in the morning on 15/9/2021. She reported to the OCCID of Chemba police Station who handed over the suspect to her together with the statement of the suspect as they had already interrogated him. Then, she started her journey back to Kilimanjaro on 15/9/2021 at about 09:00hrs. They arrived on the same day at about 18:00hrs. PW4 found the OCS and OCCID Afande Nikolao. The OCCID interrogated the suspect why he had left without notice and where he was going. He replied that he was going to their home at Dodoma. He said that he decided to leave after he had committed murder. It was oral interrogation. Thereafter, PW4 was required to take the suspect to the lock up. Then she went to rest at home. While still going on with investigation, another witness went and informed PW4 that her husband went at their home in the morning with a knife 7 which had blood stains. Then, PW4 interrogated the second suspect and prepared the case file for further actions. PW4 identified the sketch map of the scene of crime which she drew. She prayed to tender it as exhibit. It was admitted as exhibit P2. Also, PW4 identified the first accused who was in the dock as the person she was testifying about. She said that she never knew the first accused before and she had no grudges with him. PW5 Mr. Anicetas Francis Bongole stated that, he was a driver of Shabiby bus transporting passengers from one region to another. He had been working with Shabiby bus services for four years. On September, 2021 he had worked with Shabiby for one year. He said that on 14/9/2021 in the afternoon at about 13:10 hours he was at Chemba area on his way to Dodoma. He was driving Shabiby bus with registration number T750 DSQ. While driving that bus, PW5 received a phone call from a person who introduced herself as a woman police officer. The said person ordered him to inspect in his bus whether there was a male passenger who wore a trouser with dots, who was short and light in colour (maji ya kunde). That, if such person was present in the bus, PW5 should inform her. PW5 directed his conductor to search for such person. The conductor told PW5 that such person was present in the bus. Thereafter, PW5 parked the bus and made a phone call to the person who had introduced herself as a police officer. He informed the police officer that the person was present in the bus. That police officer ordered PW5 to take that person to the police station. The next police station was Chemba, thus, PW5 decided to take that person to Chemba police station. 8 At Chemba police station, they were already informed, they received the suspect and PW5 proceeded with his trip. PW5 identified the suspect he took to Chemba police station. He alleged that he never knew him before and he had no grudges with him. PW6 G. 9158 D/Cpl Joseph Francis Temba a police officer at Criminal Investigation department stated that his responsibilities are to arrest, investigate and take suspects to court. His working station was at Dodoma. On September, 2021 he was stationed in Chemba district where he was working as an investigator and driver of OC CID. In 2021 PW6 had a working experience as a police officer of eleven years and three years as an investigator. PW6 recalled that on 14/9/2021 in the afternoon he was at work at Chemba Central Police Station. While there at about 14:30 hours the OCCID informed him that there was a suspect of murder case in Kilimanjaro Region. The OCCID assigned PW6 to take the suspect from the lock up, interrogate him and record his statement. Then, take the said statement to the OC-CID. PW6 noted the hints of the said suspect and went to the CRO. He asked the police officers at the CRO if there was such suspect, they said that he was there. Thereafter, PW6 prepare a room for interrogation and went back to the CRO and took the suspect from the lockup. The police officers at the CRO handed over the suspect to PW6. PW6 testified further that he informed the suspect his basic rights. Prior to that he informed the suspect that he was suspected with the offence of murder. He also asked the suspect if he had relatives or his advocate whom he would like to be present during interrogation. The suspect said 9 that he had no relative nor advocate but he was willing to give his statement. Lastly, PW6 warned the suspect that he should give his statement voluntarily. The suspect said that he was ready to give his statement. Then, PW6 read over the introductory part which he had recorded and the suspect signed with a right thumb print. After he had signed, PW6 asked him if he could record his statement or he should assist him? He replied that he was illiterate. PW6 proceeded to interrogate him in a form of question and answer. After he had finished recording the statement, he read it over to the suspect. Then, he signed each page of the statement with a right thumb print. Thereafter, PW6 recorded his verification and the suspect signed it by a right thumb print. Then, PW6 recorded his verification, and wrote his force number and his names. He said that he started recording the statement at 15:00 hours and finished at 16:15 hours. PW6 went on to state that, after he had finished, he took the suspect to the CRO. He explained that, when he finished interrogating the suspect, he was physically fit and he was walking independently. That, when he took the suspect from the lock up, he was physically fit and he was walking. The police officers at the CRO returned the suspect in the lock up and PW6 gave the cautioned statement to the OC-CID. PW6 identified the cautioned statement of the accused which he recorded through his handwriting, force number G.9158 and his signature. He prayed to tender the cautioned statement as exhibit. It was admitted as exhibit P3. 10 PW6 continued that, at page 2 he erred, thus he had to write in the brackets and signed. He identified the suspect whom he recorded his cautioned statement. That is the first accused who was in the dock. He concluded that he never knew the accused before and he had no grudges with him because he did not know him. That was the end of prosecution case. The court found that a prima facie case was established against both accused persons. The accused persons had no additional witness, they defended themselves on oath. DW1 John Mashaka Sigani (first accused) testified that he works as a shepherd of goats and he was a resident of Himo darajani. He said that on 10/9/2021 he was grazing goats at the gorge of water. In the evening at about 18:00 hours when he returned from grazing, he found Elizabeth closing the gate. She told him that she was going to Himo to buy medicine. Elizabeth did not return that day. At night, one Dismas Sebastian Kessy phoned DW1 and asked where his aunt was, he replied that she had gone to buy medicine. Dismas said that he was going to look for her in town. That the said Dismas went back and told DW1 that he did not find her. He said that maybe she had gone to her relatives at Himo. He advised that they should sleep and find her next day. In the morning one woman whom DW1 did not know, prepared tea and gave Dismas so that he could take to her aunt in Hospital. Dismas took tea to her auntie at Mlay’s Hospital but he did not find her. At about 09:00 hours DW1 went for grazing. He came back at 12:00 hours and ate chapati and tea and went back to graze, Dismas went to work. DW1 informed this court that he was the one who reported at the police that Elizabeth was missing. He reported on 12/9/2021. He said that he 11 went with two children of Elizabeth. After he had reported, he went back home and continued grazing goats. On 14/9/2021 in the morning at about 06:00 hours DW1 notified Dismas that he wanted to go back home. He was asked whether he had fare; he told Dismas that he had no fare. He was asked why he wanted to leave, He told Dismas that he was not being given food. Then, Dismas gave him Tshs. 40,000/= and he escorted DW1 to the bus stand and bought a ticket for him. He gave him Tshs. 3,000/= for food. When DW1 reached at Babati he was followed by a conductor of Shabiby bus. The conductor asked DW1 whether he had boarded at Himo, DW1 said yes. He asked him what he had done; he said that he had done nothing. The conductor told DW1 that they were ordered to leave him at the next police station. The driver told DW1 that he was suspected with an offence of Murder and that he was wanted by the police at Moshi. When they reached at Chemba, they left him at the police station. He was handcuffed and taken into the lock up. On 14/9/2021 he was not interrogated. On 15/9/2021 no one followed him nor interrogated him. He stayed at Chemba for more than two weeks. When the investigator Afande Neema from Himo went there, she interrogated DW1. He did not remember the date when Cpl Neema took him from Chemba. They boarded the bus and went to Himo Police station. DW1 averred that he never gave any statement. When he reached at Himo, he was taken to Moshi Central Police Station where he found other accused persons arrested. Then, they were taken to Mbaosiri, where they were interrogated one by one. Inside the said room, they were ordered to take off all the clothes, they remained like meat in the butchery. They 12 did assault him and forced him to confess the statement which he did not know. Then, DW1 was given some papers to sign. Thereafter, DW1, was taken back to the lock up where he stayed for six days. After six days he was brought to court. He prayed this court to set him free, as he was not guilty of murder. DW2 Mr. Steven Joseph Mmbando (second accused) his defence was that he was a pet business man selling soup and local brew known as mbege. His business was at his homestead at Kilema road. He asserted that on 14/9/2021 he was at his business at home continuing with selling soup and mbege. While at his business one customer went there from Kilema road who was telling other customers that there was a woman who was a resident of Darajani area who was missing. He did not take any action, he continued with his business. DW2 disclosed that he had grudges with the woman he was cohabiting with and he had not introduced himself to her parents. The said woman was called Neema or Mama Bray. That woman told DW2 that she was going to the clinic. She came back very late in the evening. DW2 asked her which clinic did she go since morning till that time? She replied that why DW2 was controlling her as she passed to her friends. He asked her whether she could cook at such time, then he decided to proceed with his business. DW2 testified further that he recalled, that next day his wife said that she was directed to take back the child to the clinic. DW2 told her that he knew that she was not going to the clinic. He continued with his business 13 when she left. He drank alcohol and became drunk and finished his business. Their house had two rooms. At about 19:00 hours his wife had not returned. DW2 went to sleep on another bed which they were not using with that woman. While resting one police officer called Shija went there. He went with Aloyce by using a motor vehicle make Noah. They pushed the door, he asked who was that? He saw a police officer. The said police officer pulled DW2 so that he could take him out. DW2 found Eliya standing outside. That police officer handcuffed DW2 and took him where he had parked his motor vehicle. While moving, DW2 asked Eliya what was wrong? He replied that there was nothing wrong. After they had moved about two steps, DW2 saw his wife dropping from a motorcycle laughing. He could not talk to her as the vehicle was moving. DW2 went on to state that when he was arrested Elizabeth had been found and buried. About two or three days had elapsed. One customer at his business told them that there was a person who was found died at the river. He borrowed the motorcycle of that customer and went to the scene. After being taken to the police station Afande Neema went there. DW2 was taken to a nearby house. He was in the company of another person. Afande Neema asked DW2 who had paid them to kill Elizabeth? He replied that he had not killed Elizabeth. She asked him whether he had a misunderstanding with his wife? DW2 said yes. She told him that he liked beating his wife, DW2 replied that he had never beaten his wife. Afande Neema was recording his statement and he had stayed for one day at the police station when his statement was recorded. 14 DW2 made it clear that he was not responsible for the murder of Elizabeth and he did not know anything. He insisted that he had never committed murder. It was suspected that it was the woman Neema (his wife) who had reported him. DW2 denied to have been found with clothes which had blood stains. After recording his statement, he was taken back in the lock up. DW2 concluded that, he met the first accused when he was taken to Moshi Central Police Station. He prayed to be set free. That marked the end of evidence of both sides. According to the evidence adduced by the prosecution and the defence side, I am of considered opinion that the following facts were not disputed during the trial: 1. That the deceased person Elizabeth Bernard Shayo died unnatural death. 2. That the first accused person was the houseboy (shepherd) of the deceased. 3. That, the deceased was missing since 10/9/2021 before being found died. 4. That, the first accused was arrested in Shabiby bus while on his way to Dodoma and taken to Chemba Police station. The issue for determination as a cardinal principle of criminal cases, is whether the prosecution has managed to prove beyond reasonable doubts the offence of Murder against the accused persons. That is whether the elements of murder which are; death, the involvement of the accuseds as the persons who caused the death of the deceased and malice aforethought (evil intention) of the accused person have been established to the required standard to wit, beyond reasonable doubts. 15 Another issue to be considered is whether the defences of the accused persons raise any reasonable doubt on part of the prosecution. Since the fact that the deceased died unnatural death is not disputed, this court has to determine the two remaining ingredients of murder: whether the accused persons killed the deceased and whether they killed her with malice aforethought. In the circumstance, I will not consider the Post Mortem Examination Report (exhibit P1) and Sketch Map of the scene of crime (exhibit P2) which were discredited through cross examination during the trial. On the available evidence, there is no eye witness who saw the two accused persons killing the deceased. Starting with the second element of murder on whether the accused persons killed the deceased; the first accused person is implicated based on his cautioned statement and circumstantial evidence whereas the second accused is implicated based on circumstantial evidence only. As far as circumstantial evidence is concerned, it is settled principle that in order to ground conviction on circumstantial evidence it must not be capable of more than one interpretation. In other words, it must irresistibly point to the guilt of the accused persons and not otherwise. We have plethora of authorities emphasizing how circumstantial evidence should be considered. In the case of Gody s/o Katende @ Godfrey Katende v. R, Criminal Appeal No. 399 of 2018, TZCA (2020) at page 16 and 17 it was held that: “Thus, the circumstantial evidence must be such as to produce moral certainty and precision, to the exclusion of every reasonable doubt as it was emphasized in the case of SIMON MUSOKE VS 16 REPUBLIC, [1958] 1 E.A. 715, in this case the Court of Appeal for East Africa among other things, held: - "In a case depending exclusively upon circumstantial evidence, the court must, before deciding upon conviction, find that the inculpatory facts are incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt." This Court has on several occasions emphasized that great caution should always be taken before grounding a conviction on the basis of circumstantial evidence. In the case of SAIDI BAKARI VS REPUBLIC, Criminal Appeal No. 422 of 2013 (unreported) the Court stated: "...In determining a case cemented on circumstantial evidence, the proper approach by a trial court and appellate court is to critically consider and weigh all circumstances established by evidence in their totality, and not to dissect and consider it in piecemeal or in cubicles o f evidence or circumstances." In another recent case of Shilanga Bunzali v. R, Criminal Appeal No. 600 of 2020, [2022] TZCA (1 December 2022) Tanzlii at page 14 and 15 it was observed that: “We are aware about the settled position of the law that, one, the circumstantial evidence under consideration must be that of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. See: LUCIA ANTHONY @ BISHENGWE VS THE REPUBLIC, Criminal Appeal No. 96 of 2016 (unreported); two, that each link in the chain 17 must be carefully tested and, if in the end, it does not lead to irresistible conclusion of the accused’s guilt, the whole chain must be rejected. See; SAMSON DANIEL VS REPUBLIC, (1934) EAC.A. 154]; three, that the evidence must irresistibly point to the guilt of the accused to the exclusion of any other person. See: SHABAN MPUNZU @ ELISHA MPUNZU VS REPUBLIC, Criminal Appeal No 12 of 2002 (unreported); four, that the facts from which an inference adverse to accused is sought must be proved beyond reasonable doubt and must be connected with the facts which inference is to be inferred. See ALLY BAKARI VS REPUBLIC (1992) TLR, 10 and ANETH KAPAZYA VS REPUBLIC, Criminal Appeal No. 69 of 2012 (both unreported); and five, the circumstances must be such as to provide moral certainty to the exclusion of every reasonable doubt- see SIMON MSOKE VS REPUBLIC (1958) EA 715.” In light of the above authorities, in the case at hand starting with the first accused; as stated earlier, the first accused person is implicated based on circumstantial evidence and his cautioned statement. It is undisputed fact that the first accused person was the houseboy of the deceased and they were staying together. According to the testimony of PW3, when he went back home, he was told by the first accused that his auntie had gone to Himo to buy medicine. PW3 made follow up but he could not find his auntie. Thereafter, the first accused went to report at the police station that Elizabeth Shayo was missing. Thereafter, the first accused person departed to Dodoma without informing anyone. In his defence, the first accused supported the testimony of PW3 that he was the one who had informed PW3 that his auntie had gone to buy medicine. In addition, the first accused alleged that he was given the bus fare by PW3 who escorted 18 him to the bus stand. Moreover, the first accused admitted to had been arrested inside Shabiby bus while on his way to Dodoma. The above version of evidence is corroborated with exhibit P3 the cautioned statement of the first accused person. The cautioned statement (exhibit P3) which was admitted without being objected, reveals that the first accused gave two versions of the story. At page 2 of exhibit P3 the first accused person stated that: “SWALI: unajua unashtakiwa kwa kosa gani? Jibu: nashtakiwa kwa kosa la mauwaji. SWALI: Uliyemuua ni nani yako? Jibu: Ni boss wangu ambaye nilikuwa nafanya kazi ya uchungi wa mbuzi. SWALI: alifanya nini mpaka umuue? Jibu: nilikuwa namdai mshahara wangu wa mwezi mmoja na aliponiambia hana nikashikwa na hasira nikaenda kukata majani, alivyokuja kunisaidia nikamkata panga kichwani na kwenye mdomo na kumuua hapo.... SWALI: Ulisema ulimuua huko korongoni karibu na mto je damu zilifikaje chumbani kwa mama Kamamaa? JIBU: Baada ya kumuua kanga yake ilikuwa na damu sana nikaichukua na kwenda nayo chumbani kwake na nilivoona wataiona nikaenda kuitupa mtoni.” At page 3 of his cautioned statement, when asked whether he was in the company of anyone when he killed the deceased, the first accused changed his story and replied that: “Jibu: Siku hiyo mama Kamamaa Elizabeth aliacha mkoba wake wa pesa chumbani kwake na aliniambia hana pesa hivyo alienda kuoga nikaingia chumbani kwake na kupekua 19 na kukuta hicho kipochi na kuchukua nikiwa natoka nikakutana nae akaniuliza nimebeba nini nikamjibu siyo kitu akanifuata na kuichukua na kuniuliza kwa nini ninamuibia? akaniambia nisubiri hapo anipeleke kituoni. ndipo nilipoenda chumbani kwangu na kuchukua panga nika mfuata chumbani kwake na kumkata panga la kichwani alipodondoka nikamkata lingine la chini ya mdomo na alipokufa nilimfungia chumbani kwake na kila aliyekuja kuulizia nilimjibu ameenda himo na ilipofika usiku was saa nane nilimtoa kwa kumburuza mpaka huko korongoni na kumfunika na majani na kabla ya kumtoa nilimbaka na kumburuza mpaka huko porini na kumuacha.” From the above quoted evidence, I am of settled opinion that the conduct of the first accused after the incident as explained by PW3 as well as his twisted cautioned statement led to irresistible conclusion that he committed the offence charged. It is settled law that in an appropriate case, the conduct of the accused person after the event may lead to an inference of guilt. See the case of Mohamed Selemani v. R (Criminal Appeal 105 of 2012) [2012] TZCA 69 (2 July 2012). The next issue is whether the said cautioned statement was voluntarily made. The first accused person, stated that he was tortured at Moshi Central Police Station in Kilimanjaro Region. Nevertheless, it is on record that his confession was taken at Chemba Police Station in Dodoma Region by PW6. The first accused did not say if he was tortured at Dodoma when PW6 recorded his confession. Instead, he averred that the cautioned 20 statement was recorded by PW4 WP 6346 D/CPL Neema and not PW6 G. 9158 D/CPL Joseph. This court is satisfied that the confession was made voluntarily. If the confession was made involuntarily, its wording could have been different. For instance, it could have not given two scenarios of murder; one at the gorge and the other in the bedroom of the deceased. The story could have been straight. You cannot fabricate an offence against a person with obvious contradictions. In the case of Nyerere Nyague v. Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012) at page 7 last paragraph to page 8, it was held that: “As we understand it, the relevant law regarding admission of accused’s confession under this head is this: First, a confession or statement will be presumed to have been voluntarily made until objection to it is made by the defence on the ground, either that it was not voluntarily made or not made at all (See Selemani Hassan v R Criminal Appeal No. 364 of 2008 (unreported) Secondly, if an accused intends to object to the admissibility of a statement/confession, he must do so before it is admitted, and not during cross examination or during defence (See SHIHOZE SENI AND ANOTHER v R (1992) TLR. 330, JUMA KAULULE v R Criminal Appeal No. 281 of 2006 (unreported). Thirdly, in the absence of any objection to the admission of the statement when the prosecution sought to have it admitted, the trial court cannot hold a trial within trial or inquiry suo motu, to test its voluntariness. (See STEPHEN JASON AND ANOTHER v R Criminal Appeal No. 79 of 1999 (unreported). Fourthly, if objection is made at the right time, 21 the trial court must stop everything and proceed to conduct a trial within trial (in a trial with assessors) or an inquiry, into the voluntariness or otherwise of the alleged confession before the confession is admitted in evidence (See TWAHA ALLY AND 5 OTHERS v R Criminal Appeal No. 78 of 2004 (unreported). Fifthly, even if a confession is found to be voluntary and admitted, the trial court is still saddled with the duty of evaluating the weight to be attached to such evidence given the circumstances of each case (See TUWAMOI v UGANDA (1967) E.A 91, STEPHEN JASON & OTHERS v R (supra). And lastly, everything being equal the best evidence in a criminal trial is a voluntary confession from the accused himself (See PAULO MADUKA AND 4 OTHERS v R Criminal Appeal No. 110 of 2007 (unreported).” Emphasis added In our case, the first accused objected the cautioned statement in his defence and through cross examination by the learned defence counsels. The learned defence counsel of the second accused also objected the confession in his final submission in which he tried to show weaknesses of the said confession. That was contrary to the principles which were confirmed in the case of Nyerere Nyague (supra). The objection should have been raised prior to admission of the cautioned statement. Whereas as a matter of procedure a trial within a trial could have been conducted in order to determine the raised objection. Turning to the last element, that is malice aforethought; based on the discussion herein above, it is a settled opinion of this court that the act of 22 the first accused person to narrate the contradictory stories in his cautioned statement reflects his evil motive. However, that does not take away the fact that he killed the deceased by cutting her on her head and around her mouth. What is contained in his confession is the best evidence which incriminates him. Apart from that, the first accused misled PW3 and other people that the deceased had gone to Himo to buy medicine while he knew that he had killed her. That is another expression of malice aforethought. On the strength of the noted two points, the element of malice aforethought of the first accused has been proved beyond reasonable doubts. On the issue as to whether the defence of the first accused person raise any reasonable doubt on part of the prosecution side, as established hereinabove, his allegation that he decided to leave because he was not being given food is a mere attempt to avoid liability and that does not raise any doubt on part of prosecution. Mr. Engelbert the learned defence counsel for the second accused, stated in his final submission that the ingredients of murder were left unproven and noted some doubts. First, he contended that the particulars of the charge reads that the offence was committed at Himo area while no single witness did testify to that extent. Respectfully, to the learned defence counsel, the charge in this case is to the effect that the offence was committed at Kilema area within Moshi District. It seems that Mr. Engelbert confused between area of commission of the offence and the place where the body of the deceased was found. Other doubts were in respect of exhibit P1 the Post Mortem Examination Report and exhibit P2 the Sketch Map of the scene of crime. As I have 23 already noted herein above death is not disputed in this case. Even the place where the body of the deceased was found is not disputed. The second accused stated in his defence that he borrowed a motorcycle of one of his customers and went to the scene to witness. Also, he said that he participated in the burial of the deceased Elizabeth Shayo @ Mama Kamamaa. Since death and the place where the body of the deceased was found is not disputed, the weaknesses in exhibit P1 and P2 are immaterial. Moreover, it should be recalled that it is trite law that death may be proved even without tendering a Post Mortem Examination Report. See the case of Mathias Bundala v. R (Criminal Appeal 62 of 2004) [2007] TZCA 161 (16 March 2007) at page 9 of the judgment where it was held that: “On this he relied on the cases of HILDA ABEL V. R. [1993] TLR. 246 and FILBERT HUBERT V. R., Criminal Appeal No. 28 of 1999 (unreported). In the latter case this Court discounted the report on Post Mortem Examination which was showing the cause of death but had been irregularly admitted in evidence and yet it proceeded to hold on the remaining evidence that it was the appellant who had killed the deceased.” Emphasis mine Mr. Engelbert tried to shake the credibility of exhibit P3. First, he alleged that the first accused was not committed to the justice of peace after he had confessed to have murdered the deceased. He also said that there are discrepancies in the said exhibit. As already stated, the learned counsel’s arguments are afterthoughts as he should have raised an objection before the said exhibit was admitted into evidence. 24 Unfortunately, I have evaluated the weight of that exhibit and found it worth to be relied upon against the first accused person. The first accused signed it on each page and at his hand written verification at the end of the confession by using his right thumb print. It is disappointing that the learned counsel is misleading this court that exhibit P3 was not signed on each page. Concerning the second accused, the only evidence which implicate him is that of PW4. PW4, testified inter alia that she was informed by the wife of the second accused that the second accused went at home with a knife which had blood stains. Thus, she suspected him to have been involved to murder Elizabeth Shayo who was found died. Unfortunately, the prosecution did not summon the said wife of the second accused to testify on what transpired. That renders PW4’s evidence hearsay which is not admissible as per section 62 of the Evidence Act [Cap 6 R.E 2019]. Therefore, the circumstantial evidence which implicate the second accused does not prove the offence charged against him beyond reasonable doubt. The allegation against the second accused is too vague to the extent that even without entering his defence, he could not be convicted. That said, I find the first accused John Mashaka Sigani @ Castori guilty of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 RE 2022. Hence, I convict him as charged. Regarding the second accused person, Steven Joseph Mmbando, I find him not guilty of the offence of Murder contrary to section 196 and 197 of the Penal Code, (supra). I therefore acquit him under section 235 (1) of the Criminal Procedure Act, Cap 20 R.E 2022. 25 Dated and delivered at Moshi this 20th day of March, 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 20/03/2024 COURT: Judgment delivered in open court. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 20/3/2024 SENTENCE There is only one sentence for the offence of Murder as prescribed under section 197 of the Penal Code (supra) and section 322 (1) and (2) of the Criminal Procedure Act, Cap 20 R.E 2022. It is on that basis that I hereby sentence the accused person John Mashaka Sigani @ Castori to suffer death by hanging. It is so ordered. 26 X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 20/3/2024 Right of Appeal explained. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 20/3/2024 27