John Muyonjiwa 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT SUMBAWANGA SUB-REGISTRY CRIMINAL SESSION CASE NO.63 OF 2022 THE REPUBLIC VERSUS JOHN s/o MUYONJIWA @SHURUGUTA..............1st ACCUSED SELEMAN s/o RICHARD @KANDO........................ 2nd ACCUSED JULIUS s/o DALALI @LUTEMA............................ 3rd ACCUSED Date of Last Order: 18th June 2024 Judgement on 28th June 2024. JUDGMENT NANGELA, J.: The three accused persons, namely: JOHN s/o MUNYONJIWA@ SHURUGUTA, SELEMAN s/o RICHARD @KANDO, and JULIUS s/o DALALI @LUTEMA, stand charged with murder of one, BARAKA s/o SAID. The incident took place at Msasani suburb, Mtisi Village, in Katavi Region on the 24th of January 2022. On the material date, a natural calamity caused by lighting had claimed the life of one Angelina d/o Kifua while injuring another person at Mtisi Village. After the incident, rumours had it that the lightning was, by way of witchcraft practices, caused by the deceased. Based on such allegations, a Page 1 of 24 group of people came chasing the deceased who, at first, took refuge in his own house. Having taken refuge in his house the crowd, while wielding sticks surrounded the house and hurling stones at it. At the house, the deceased's wife (Editha d/o Daudi) who was present at home, managed to identify a few people among those who formed the crowd. Among those she identified were the three accused persons herein. Since the commotion was heaping up as a large gathering of people was surging at her house, she decided to leave the house and went to her neighbour. However, the deceased managed to escape form the house and sought refuge in a cowshed (Kraal) belonging to one Mwanandege. Even so, the crowd charged at him and besieged the kraal. He further escaped therefrom, running towards the mountains. Still the crowd persisted in its pursuit of him. When her wife heard that the crowd had again pursued her husband and headed towards the mountainous area, she followed up to that place. Upon reaching at a Shamba of one Mwanandege, she found her husband laying down oozing blood having been attacked as his body looked beaten up. At the shamba, she also found one Mwanandege and two gentlemen trying to assist the deceased. She joined them with a view to take the deceased to hospital. Unfortunately, the deceased never made it to the hospital because, while still on the way, he passed away. Upon his death, his body was return to his house. As the news Page 2 of 24 regarding his death spread to the leadership of the area, the accused persons, among others were arrested. They were taken to Police and later a charge of murder was preferred against them. On the 10th of June 2024, this case was called on for hearing. When the accused persons were called upon to plead to the information which was read over and explained to them, they pleaded not guilty to the charge sheet (Information). However, the prosecution team, led by Ms. Florida Wenceslaus and Mr. Gregory Muhangwa, Learned State Attorneys, lined up five witnesses to prove the charge facing the accused persons. These were Mr. Conrad Fernand (Pw-1), MG. 588664 Said Harmesh Ruda (Pw-2), Ms. Chineye Rachel Robinson (Pw-3), WP.8227 D/CPL. Jenista (Pw-4), and G.5696 D/CPL Augustino (Pw-5). The accused persons, who enjoyed the legal services of Mr. Gadiel Sindamenya and Ms. Agela Deus Remmy, learned Advocates, called no witnesses to testify in their favour, but elected to defend themselves. Before I find out whether the prosecution's case was established within the required standards, I will briefly summarise the testimonies offered to the court by the witnesses. Pw-l's testimony is essentially based on the information he received, as a leader of the suburb of Msasani where the murder incident took place. According to him, being the chairman of the Msasani suburb, he was informed about the murder of Baraka s/o Said, on the 24th of January 2022 by a Page 3 of 24 resident of Mtisi Village, one Bakari Shabani Msuka, at around 21hrs. It was Pw-l's testimony that, having been informed of the incident, he formed a committee and, together, made follow-up of the matter at the deceased's house where they indeed found that, the deceased had been killed, and his body was laid at the sitting room of his house. Pw-1 informed this court that, upon inquiring about the incident, the deceased's wife (Editha d/o Daudi) informed them that the deceased was attacked to death by a crowd of people. Pw-1 told this court that, it was the deceased's wife who named a few of those she was able to identify, and who among them, were John Muyonjiwa (the first accused), Selemani Kando (the second accused) and Julius Dalali (the third accused person). Others were Agnes Sabuni, Hawa Mahmood, and Tausi Abdi who are still at large. Pw-1 testified that, having so briefed, he informed the Police at Mpanda Police Station, and the OCS- Mpanda, in communication with the Mpanda OC-CID, directed that the culprits be arrested. Pw-1 informed this court further that, in cooperation with the Auxiliary Police (Askari Mgambo), one Yuda Said, and the ten cell leader (Balozi) of the Msasani Street named Mr. Elias Emmanuel, some of the culprits who were mentioned by the deceased's wife (Editha d/o Daudi), including the three accused persons now in court, were arrested. During cross-examination, Pw-1 testified that, since he was not the resident of Msasani Street, he had to enlist the Page 4 of 24 assistance of the "Balozi" of that street as it was difficult for him t to know all accused by face. According to Pw-1, although he did not ask the deceased's wife whether she was there when the accused persons were murdering her husband, he still believed and acted on the information he had received from the deceased's wife. He also admitted that, according to what he was told by the deceased's wife, the assailants were many. Pw-2 supported the testimony of Pw-1. He testified that, being auxiliary police (Askari Mgambo), while at Mtisi Village on the 25th of January 2022, he was called by Pw-1 who informed him about the murder of Baraka s/o Said. Pw-2 informed this court that, having gone to Msasani suburb that night, in cooperation with other MGs (Mgambo) and the leaders of that area, they were able to arrest eight people based on a list they had been given. According to Pw-2, the people who were arrested, were later handed over to the Police in the morning of the 25th of January 2022. During cross-examination, he told this court that, the list of people they had was handed over to them by the Balozi of the area. He also testified that, although the list had 13 names thereon, they only managed to arrest eight culprits as the whereabouts of the rest could not be established. The third witness (Pw-3) was a medical doctor named Chineye Rachel Robinson. Her testimony was to the effect that, she carried-out a post-mortem examination of a deceased person whose name was introduced to her by Said Selemani, Page 5 of 24 the father of the deceased. Pw-3 testified that, the body she had examined, had several bruises and swollen blood clots on his back as if he was beaten with a blunt object as the skin was not torn but the beating had caused blood clotting. Pw-3 testified further that, as per the history narrated to her by the deceased's relatives who identified the body as being that of Baraka s/o Said, that the deceased had been beaten. According to Pw-3's testimony, based on that history and her own observation of the body, she ended up with a conclusion that the deceased's death was caused by severe traumatic brain injury, an injury which occurs when one is beaten on the head, hence disturbing the brain. It was her testimony, therefore, that, having made such a conclusion, she filled and signed a post-mortem examination report which she tendered in this court and the same was received as Exh.P-1. During cross-examination, Pw-3 testified that, as a matter procedure, she was obliged to ask about the history of deceased in the same manner as she would have asked or diagnosed a living patient before proposing for the appropriate prescription. The fourth WP.8227 D/CPL Jenista who testified as Pw-4. It worth noting that Pw-4 testified with a view to tender two statements (depositions) of two witnesses who were unable to testify in court because their whereabouts could not be traced. Those two statements recorded by Pw-4 while investigating this case were that of Ms. Editha d/o Daudi (the deceased's wife) and one Hamis s/o Mwanandege. Their statements were Page 6 of 24 tendered and received by this court under section 34B (1), (2)(a) to (f), (4), (5) and (6) of the Evidence Act, Cap. 6 R.E 2022. They were admitted as Exh.P-3 and Exh.P-4 respectively. In her testimony, Pw-4 confirmed to have recorded the statement of the deceased's wife on the 26th of January 2022 having been assigned to do so by the OC-CID- SSP Hosiana. Pw-4 informed this court that, she recorded such a statement at the deceased's house. According to Pw-4, the deceased's wife had narrated to her that, while at her home at around 5pm on the 24/1/2022, a large group of people came chasing her husband, Baraka s/o Said. Pw-4 stated further that, the deceased's wife stated in Exh.P-4, that she was able to identify John Muyonjiwa, Julius Dalali and others, as among those people who were chasing her husband, and that, her husband sought refuge into their house. Pw-4 told this court further that, the deceased' wife had stated that those people were throwing stones at the deceased, and others had sticks. Pw-4 informed this court that, as per the deceased's wife, since the large crowd was surging at her house, she decided to leave and went to her neighbour. However, after hearing that the same people had again chased her husband and headed towards the mountainous area, the deceased's wife followed-up, and, upon reaching at a Shamba belonging to one Mwanandege, she found her husband lying on the ground, oozing blood on the head, while his body looked beaten up. Page 7 of 24 According to Pw-4, the deceased's wife also narrated to her that, at the Mwanandege's shamba, she found Hamis Mwanandege and two young men trying to help her husband Baraka Said (the deceased), to stand. Pw-4 further testified that, in Exh.P3, the deceased's wife had stated that, when she found her husband at the Mwanandege's shamba with serious injured, efforts to take the deceased to hospital were made but, on the way, her husband passed away around 8.00pm, and so, they decided to return the deceased's body home. According to Pw-4, on the 25th of January 2022, the deceased's body was taken to the morgue and was later attended by MD Chinengeye after being identified by the deceased's father, Mzee Said Selemani. Pw-4 told this court that, the doctor informed them that the deceased died due to the wound or injury he had sustained. She also told this court that, the doctor who carried out the post-mortem handed her with a report which she kept in her investigation file as well. Pw-4 stated further that, on same date (the 25th of January 2022) the suspects earlier arrested, including the accused persons, were taken to the Police for interrogation. According to Pw-4, some of the suspects, who were John Muyonjiwa, Seleman Richard and Julius Dalali were brought to the Police station by using the OCD's vehicle while the rest were taken there using the OC-CID's vehicle and, that, all were brought to the Mpanda Police Station around 1pm. Page 8 of 24 Pw-4 did testify as well that, on the 26th of January 2022, she was assigned to a case file No. MPANDA IR/283/2022 and commenced investigation at Msasani suburb, to record statements of other intended witnesses. Pw-4 informed this court that, as investigator, she was able to know that the murder incident took place on 24/1/2024 at Msasani Area in Mtisi Village, Sitalike Ward, and, that, according to the deceased's wife, Editha d/o Daudi, the deceased Baraka alleged to have been seen holding something which thereafter caused a lightning which struck and killed a girl named as Angelina d/o Kifua, a fact which enraged the wananchi who started to attack him and killed him. During the hearing, Pw-4 was recalled and was made to tender the statement of one Hassan Ndege ©Mwanandege which she had recorded as the said witness could no longer be found. The statement was received under section 34B (1) (2) (a) to (f) and (4), (5) and (6) of the Evidence Act, Cap. 6 R.E. 2022. She told this court that she recorded the statement on the 2nd of February 2022. According to her testimony, Hassan Mwanandege had stated in his statement which Pw-4 recorded, that, on the 24th of January 2022, at 6.00 pm, while at home, he was phone- called by his wife Shida d/o Emmanuel. In that call, he was informed about a person who had sought refuge into Mr. Mwanandege's kraal (cowshed) which was being besieged by a horde of people. Pw-4 told this court that, in his statement, Hassan Mwanandege had stated that, when he rushed home, Page 9 of 24 he did not find the person but was told that the person was chased away by the crowd of people towards the mountainous area. It was Pw-4's further testimony that, in his statement, Mwanandege had stated that, as he was rushing towards the mountainous area, he found people beating Baraka s/o Said (the deceased) at his farmland, and that, among those he was able to identify were John Muyonjiwa, Julius Dalali and one, Lucy. Pw-4 stated that, in his statement, Mwanandege stated that, it was Julius Dalali was holding Baraka Said while the said Lucy was beating him with a stick while John Muyonjiwa was throwing stones at him and, that, after what they did, the people who were there, including John Muyonjiwa, and Lucy, left. According to Pw-4, in his statement, Hassan Mwanandege stated that, as the attackers left, he, together with another young man unfamiliar to him and Editha d/o Daudi, tried to help to Baraka go to Hospital. However, since Hassan Mwanandege, was tired he stated that he only left Editha d/o Daudi and the other person helping the deceased to go to hospital, only to be told on the next day that Baraka s/o Said never made it as he passed away while enroute to hospital. Pw-4 tendered in court Mr. Hassan Ndege @ Mwanandege's statement which she had recorded, and this was admitted as Exh.P-4. During cross-examination, Pw-4 told the court that she did not witness the attack only that she narrates what she Page 10 of 24 recorded from the witnesses. She told the court that, according to Editha's statement, Editha d/o Daudi had identified some of the culprits. It was her further testimony during cross-examination, that, it was only Mwanandege and the two boys who were helping the deceased while at the Mwanandege's farm. She told the court that, although she was the one who recorded both statements, each witness was stating what was observed but at different times and, that, the two statements (Exh.P-3 and Exh-p4) were not contradicting each other. The last prosecution witness was G.5696 D/CPL Augustino who testified as Pw-5. He testified that currently he lives in Misunkumilo, in Mpanda and work at the OC-CID's office, Tanganyika District. According to Pw-5, in 2022 he was working at the OC-CID's office, Mpanda as a detective Police and, that, during that period he remembers to have recorded the caution statement of one Selemani Richard Kando. According to Pw-5, the said Seleman Richard Kando confessed to have been part of the crowd that attacked the deceased thereby causing his death. Further that, in that cautioned statement, the said Selemani Richard did mention John Muyonjiwa and Julius Dalali among other people who took part in attacking the deceased. Pw-5 tendered in court the caution statement, and this was admitted into evidence as Exh.P-5. That marked the closure of the prosecution case. Following the closure of the prosecution's case, this court made a finding that the accused persons had a case to answer. Page 11 of 24 Subsequently, having addressed them in terms of section 293 (2) and (3) of the Criminal Procedure Code, Cap.20 R.E 2022, the accused persons chose to defend themselves and under oath, and, hence, called no witnesses to support their defence case. I will also summarize their testimonies offered in defence. Testifying as Dw-1, the first accused (John Muyonjiwa) informed this court that, before his arrest he used to reside at Matandalani area herein Mpanda, Katavi Region. According to him, the distance from Matandalani to Msasani is a two-hour ride on bicycle. It was his defence that, on the 24th of January 2022 he was at home and later went to shamba. He informed this court further that, around 4.00pm, he went to Magula area on his bicycle, which is about two hours ride from Matandalani. It was his further testimony that, when he reached at Msasani hamlet, he heard some people shouting and was prompted inquired what to the matter, since it could, perhaps, be bereavement. He told this court that, on that account, he decided to park his bicycle and went to see what the matter was. Dw-1 stated that, as he arrived at a place where there was a cowshed (kraal) (zizi), he found a person inside the cowshed who was besieged by a crowd. According to Dw-1, when he asked what was happening, he was informed that the person had directed a lightning thunder to someone else. Dw-1 told this court that he advised that the crowd to stop beating that person and allow the law to follow its course if there are leaders around. Dw-1 Page 12 of 24 told this court that, nobody in the crowd took heed to his advice but, instead, a stone was thrown at him while someone else said he should also be beaten. Dw-1 told the court that, at that juncture, he decided to leave the place, took my bicycle and went home. He told this court he had no person he knew or was known to at Msasani suburb. He also informed this court that, he only came to know his co-accused persons in court. Dw-1 told this court that, he was utterly surprised about his name being mentioned as one of those who killed the deceased since on that day he only advised the crowd to stop beating the deceased person and later, he left and went home. He urged this court to consider his defence and make a finding that he was not involved in the killing of the deceased, thus setting him free. On being cross-examined, (Dw-1) the first accused, stated that, he was not part of those who killed the deceased in any way possible and was surprised why he was named. He stated that, he did not know the deceased. He told the court that, when he passed at Msasani it was already evening but there was still enough light and, that, he was later arrested at around 3.am. During re-examination, Dw-1 affirmed that he did not know Mwanandege's farm. The second witness in defence was the second accused who testified as Dw-2. In his defence, Dw-2 informed this court that his residence is at Msasani in Mtisi Village, Mpanda District, where he has lived from November 2021. Dw-2 informed this court that, he only knew his co-accused while in court in 2022. Page 13 of 24 According to Dw-2, on the 24th of January 2022 he was phone- called by his wife who informed him about the death of one of their relative's kids, at Mpanda town. As such, he agreed with his wife that she would attend the burial while Dw-2 went to their farmland at Ibindi. Dw-2 informed this court that, he stayed at Ibindi till 5pm and later went to the village centre where he stayed till 8.00 pm. Dw-2 testified that, from Ibindi Village, he took a bus to Magula in Mtisi Village where he reached at 8.30 pm and that he stayed there up to 9.00pm after which he went home to sleep. Dw-2 denied being involved in the beating of the deceased or ever naming his co-accused persons in his statement (which was read over to the court and admitted as Exhibit P-5). According to Dw-2, he does not know why he was even mentioned in the statements read over to the court. He, however, told this court that, at the village, there was a misunderstanding between himself and the Village Chairman (Pw-1). According to Dw-2, the source of the misunderstanding was a call to volunteer (majitoleo) in the making of bricks for a church building, a call which Dw-2 did not give heed to. He told this court that, on that day, he chose to mind his own business but when he returned, the Chairman (Pw-1) said he should pay a fine for not going to make the bricks. Dw-2 informed this court that, it is from that incident he was sure that it was Pw-1 who engineered for his arrest. He urged this court to do justice Page 14 of 24 to him and accept his testimony thereby discharging him from this case. During cross-examination, Dw-2 insisted that there was indeed a misunderstanding between him and Pw-1. He denied knowing one Mwanandege and denied having named his co­ accused who are new to him. The last witness in defence was Dw-3 (the third accused person- Julius Dalili Lutema). He also testified under oath. He told this court that, he is a resident of Msasani hamlet, in Mtisi Village, Stalike Ward, Mpanda. Dw-3 told this court that he only came to know his co-accused in court when they were brought to the court and charges were read over to them, on 11th February 2022. He also testified that; he came from Shinyanga, Bariadi with his wife called Joyce Samweli and his two children- Agness and Charles Julius and started to live at Msasani in November 2021. It was a further testimony of Dw-3 that, on 24th February 2022 he was at his farmland (mbugani). According to him, he arrived at his shamba at 7.30 and was at work thereon until 3.pm. He stated that, from 3.30 pm to 4.30.pm he returned home where he did not find his wife as she had gone to Church with the kids, and that, at around 4.45pm he heard people saying, "huyu hapa, huyu hapa) (i.e., "here he is, here he is.") Dw-3 told this court that, based on what he was hearing, he decided to go out and see what was happening. Dw-3 stated that the voices were coming from a cowshed Page 15 of 24 belonging to Mr. Hassan Mwanandege where, he found a crowd of people besieging a person who was in the cowshed. He told this court that, that person was called Baraka Said (the deceased). It was Dw-3's testimony that, when he asked one of those people what was happening, he received no response. He also asked another person who was there and was told that the person in the cowshed had sent a lighting thunder that killed a certain girl. Dw-3 testified that, due to the commotion, he decided to be returned home around 5.pm and later went to sleep 8.00pm only to be awakened at around 24hrs by one Mgambo (MG) who put him under arrest. According to him, having been arrested, he was taken to an SDA church where, together with other suspects, he stayed there till 7.00 am when Police Officers came and took them to Mpanda Police Station around 10.00 am. He further told this court that, at the police he wrote a statement and denied the offence. Dw-3 informed this court further that, he neither remembers the name of the Police Officer who recorded his statement nor anything about the statement of Editha d/o Daudi or Hassan Mwanandege because he only heard about those names while here in court. He consequently urged this court to receive his testimony and release him. During cross-examination, Dw-3 reiterated his earlier position that he only came to hear about Hassan Mwanandege while in court as he never knew such a person. He, however, admitted that he did go to the cowshed belonging to Page 16 of 24 Mwanandege but denied the alleged fact that he was found at the Mwanandege's farm. Besides, Dw-3 denied killing the deceased or seeing him being beaten but admitted that he did saw those who had besieged the cowshed where the deceased had initially sought refuge having been accused of sending lightning to kill Angelina d/o Kifua. When asked by the court, Dw-3 denied knowing the deceased or Selemani Kando, the second accused, and maintained that he came to know about those people in court. So far that marked the end of the defence case. Following the closure of the defence case, the learned counsel for the parties prayed for time to file closing submissions, a prayer which was duly granted. I will, therefore, consider the testimonies of the witnesses on both sides, the documentary evidence tendered, and the learned counsel's submissions filed in this court before I render my verdict. For me the key question is whether the prosecution side has been able to discharge its burden in this case or not. The offence which the accused persons are facing is murder. That offence falls under section 196 of the Penal Code. For that offence to be established there must be proof that, (a) there is death of a person, (b) his death resulted from an unlawful act or omission of another, (c) the accused person is the culprit who caused the death in question and (d) he caused it with an ill-intention (malice aforethought). Page 17 of 24 The principle is that he who alleges must prove. In this case, the burden of proof of all such ingredients does not lie on the accused but on the prosecution. Such burden never shifts, and it is pegged on the beyond reasonable doubt standard. As stated earlier, to prove the charge against the accused persons, the prosecution side has relied on five witnesses (Pw-1 to Pw-5) and produced five exhibits (Exh.P-1 to Exh.P-5). Looking at the testimonies of Pw-1, Pw-3 and Pw-4 as well as Exh.P-1, there is not doubt that the deceased Baraka s/o Said is dead and that his death was unnatural. Exh.P-1 does indicate that the deceased died due to severe traumatic brain injury. The same indicates that the muscles of his back were filled with dark red blood, and he had sustained a deep wound on the right side of his forehead above the brow. All such findings prove the first and second ingredients, meaning that the deceased Baraka s/o Said is indeed dead and that, his death was not due to a natural but unnatural cause. The questions that follow, however, are who killed the deceased and whether such a killer had the necessary malice aforethought (ill-intent or mens-rea). The prosecution side has held that it is the three accused and others who could not be found who caused the deceased's death having brutally attacked him. All accused persons have, in their individual defences, denied any involvement. Are they justified? The evidence to rely on is the testimony of Pw-1, Pw-4 and Pw-5. There is no doubt that Pw-1 was among those first people who visited the deceased's house and got informed by Page 18 of 24 the deceased's wife what had befallen her husband. It is also on record that she thereby named the three accused persons as among those who were chasing her husband and surrounded the deceased's house. In essence, such an early mentioning of the accused persons' names was an issue noted with significance by the Court of Appeal in the case of Marwa Wangiti and Another vs. Republic, Criminal Appeal No.6 of 1995 (unreported). In that case, the Court of appeal stated, inter alia, that: "The ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability in the same way as unexplained delay or complete failure to do so should put a prudent Court to inquiry." In the present case at hand, the deceased's wife one Editha d/o Daudi was able to name the accused persons immediately after her husband's death and she did so before Pw-1 on the 24th of January 2022 and did also state the same to Pw-4 who recorded her statement. That statement was admitted as Exh.P-3. It is Pw-1 who acting on such early naming of the suspects helped to facilitate their arrest and subsequent handing over to the Police. In his testimony, Pw-4 did also record the statement of Hassan Mwanandege which was tendered in court under section 34B of the Evidence Act and admitted as Exh.P-4. In that statement, Exh.P-4, the said Hassan Mwanandege, did Page 19 of 24 name the 1st accused, the 3rd accused and one Lucy as people among those he found at his shamba attacking the deceased and that the 3rd accused was holding the deceased while the rest were attacking him. Another piece of evidence is in the testimony of Pw-1 and Exh.P-5, a caution statement of the 2nd accused person. In it he confessed to have taken part in attacking the deceased who later died on his way to hospital. In that statement, the 2nd accused mentioned the 1st and 3rd accused as among those who attacked the deceased leading to his death. Essentially, the principle of law concerning oral confession, as it was stated in the case of Boniphas Mathew Malyango vs. Republic, Criminal Appeal No. 358 of 2018, (CAT) (unreported) is that the court may rely on a confession and convict an accused person. In that case, the Court of Appeal, citing its earlier decision in Tumaini Daud Ikera vs. Republic, Criminal Appeal No. 158 of 2009 (unreported) had the following to say: "[W]e reiterated that oral confessions of guilt are admissible and can be acted upon ...[However] admissibility of oral confession does not automatically mean this genre of evidence carries sufficient weight to convict Even where the court is satisfied that an accused person made an oral confession, the court must take an extra distance to Page 20 of 24 determine whether the oral confession is voluntary." As it may be noted hereabove, for a confession to be acted upon, the court must be satisfied that it was not only made by the accused person but also that, when he so made it, he was free and hence, made it voluntarily. In this case, when the cautioned statement (Exh.P-5) was being tendered in court, the caution statement was not objected to on the ground that it was not freely and voluntarily made. Had it been so, a trial within trial would have been held. But it is after its admission that the 2nd accused person denied having confessed attacking the deceased or even naming his two co-accused » persons in his statement. In my view, I do not find such denial as being of any substance since Exh.P-5 had already been admitted into evidence and there was no indication that it was involuntarily made. However, since it also touched on the co-accused persons, it also attracted the import of section 33 (1) and (2) of the Evidence Act, Cap.6 R.E 2022, meaning that, it amounted to a confession which had implicated co-accused persons. In law allows this court can take such a confession into consideration even against the rest of the accused persons, if such is further corroborated by other independent evidence. In this case, it is my considered view that the testimonies of Pw-1, Pw-4 and Exh.P-3 and Exh.P-4 did contain sufficient corroborative evidence regarding the 1st and 3rd accused's involvement in the attack which lead to the demise of the deceased afterwards. Page 21 of 24 First, Hassan Mwanandege, whose statement was admitted as Exh.P-4 was an eyewitness who saw the 1st and 3rd accused persons among those who were attacking the deceased. Secondly, Editha d/o Daudi, whose statement was recorded by Pw-4 immediately after the incident, named all accused persons as the culprits who took part in pursuing the deceased at his home. It is also worth noting that, at the time when Editha d/o Daudi or even Hassan Mwanandege saw the accused, there was still sufficient light of the day so there could not have been mistaken identity. Further, Pw-4 was the recorder of the statements and was cross-examined and told the court how he recorded such statements. From what I have stated, hereabove, even though the accused persons denied being involved in attacking the deceased and causing his death, it is my finding that they were fully responsible as part of those who unlawfully and mercilessly attacked the deceased, thereby causing his death. The third question which I earlier raised hereabove, therefore, is responded to in the affirmative. The last question is whether they had the necessary malice aforethought. I will not be detained much on this. As per the testimony of Pw-3 and Exh.P-1 there is no doubt that attackers had in mind one common intention, which was to eliminate the deceased. As sections 22 (1) and 23 of the Penal Code Cap. 16 R.E 2022 provide, each participant in the offence bears the brunt of it. Page 22 of 24 I am satisfied, therefore, that; based on the brutal nature of the attacks which were aimed at the physical body of the deceased including his frontal head which sustained a deep cut wound as per Exh.P-1, the accused persons had the all the requisite malice aforethought to constitute the offence of murder. The accused persons had no lawful justification or excuse whatsoever warranting attacking the killing the deceased and occasioning his death. Based on the above findings and the available evidence or record, this court does hereby conclude that the three accused and are hereby found guilty of the offence which they stand charged. I therefore convict them of murder of Baraka s/o Said contrary to section 196 of the Penal Code, Cap. 16 R.E 2022. SENTENCE This is a murder case. In such a case, once the accused is found guilty and convicted of such an offence, Section 197 of the Penal Code, Cap.16 R.E 2022 prescribes only one type of sentence, which is death by hanging of the person so convicted. Since this court has found and convicted the three accused persons namely: John s/o Muyonjiwa @Shuruguta, Seleman s/o Richard @Kando and Julius s/o Dalali @Lutema, I hereby proceed to sentence them to suffer death by hanging as provided by section 197 of the Penal Code, Cap. 16 [RE 2022]. Page 23 of 24 Any party, hereto, who feels aggrieved by the judgement and sentence of this court has a right to appeal to the Court of Appeal as provided for under the laws of this country. It is so ordered. DATED AT SUMBAWANGA ON THIS 28th DAY OF JUNE 2024 DEO JOHN NANGELA JUDGE Right of Appealing to the Court of Appeal is fully explained and THE DEO JOHN NANGELA JUDGE Page 24 of 24