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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT SINGIDA (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE NO. 92 OF 2022 THE REPUBLIC VERSUS 1. NKINGA MAGANGA 2. KASULE JOHN 3. MWANDU KASHINJE @ MASAGA JUDGMENT Date of Last Order: 15/5/2024 Date of Judgment: 14/6/2024 MASABO, J.:- This is a judgment of a murder trial involving three accused persons who are Nkinga Maganga, Kasule John and Mwandu Kashinje. They are alleged to have carried out a common intention of killing one Nshoma Salawa who is the. third accused person's mother. As per the information, on 28th August 2016 at Mwamaboku Hamlet, Makungu village lyumbu Ward within Ikungi District and Singida Region the accused persons murdered Nshoma Salawa. Page 1 of 16 The accused persons denied the charge leveled against them. Hence, this trial. During the trial, Mr. Michael Martin, learned State Attorney, led the prosecution team. Assisting him were Messrs. Godfrey Songoro, and Hussein Mkeni, all learned State Attorneys. The defence has a team of three learned counsels comprising of Messrs. Peter Ndimbo, Jackson Mayeka and Cosmas Luambano, counsels for the first, second, and third accused persons, respectively. I thank all the counsels for their industry and dedication in discharging their respective duties. To prove the case, the prosecution team paraded four witnesses and five documentary exhibits. The witnesses were: PW1- Deodatus Ndamungu Patrick, a Resident Magistrate at Primary Court of Singida at Singida Urban who recorded the extra judicial confessions of the accused persons in his capacity as a justice of peace; PW2- Assistant Inspector Mavura Ali Mvungi, the investigator of the case who recorded the caution statement of the second accused person; PW3- Said Juma Kitiku, the doctor who performed the postmortem examination; PW4- D92002 SGT MAWAZO IDD, the investigator of the case who went to the scene of the crime and arrested the accused persons. From these witnesses and exhibits, it was gathered that Nshoma Salawa was murdered on 28/8/2016. The incident was reported to Ikungi Police Station. On 29/8/2016 a team of police officers and a doctor (PW2) went to the scene Page 2 of 16 of the crime. While there, PW2 conducted a post-mortem examination to ascertain the cause of death. In his examination, he observed that the deceased had a large wound on the head, a deep cut wound on the chest and a wound on the right leg. The medical report, thereto, was tendered and admitted as exhibit P5. The police had no clue about the murderers for about 10 months. Finally, in June 2017, they caught a wind. On 29/6/2017, the OC CID for Ikungi told PW4 that he had been notified that the suspects of the murder had been found and are known. PW4 made the necessary arrangements and on the following day, 30/6/2027, he went to Makungu village in the company of a team of investigators. They managed to arrest the first and second accused persons at around 14 hours. They took them to Ikungi Police Station where they were remanded for further interrogation. On 2/7/2017 they received information on the presence of the third accused person at Makungu Village. They went to the village, arrested him and sent him to Ikungi Police Station. While in remand, the accused persons were interviewed. PW2 recalled that he interviewed the second accused person, Kasule John, on 30/6/2017 at 17hours. During the interview, the 2nd accused confessed to have killed Nshoma Salala. The caution statement recorded during this interview was tendered and admitted as exhibit P4. Its substance is to the effect that the third accused person believed that his mother was bewitching his farm. For, he procured the second and first accused person to kill her and in return, he paid them a sum Tshs. 800,000/= as consideration. Using a machete, the Page 3 of 16 first accused person assaulted the deceased on different parts of the body including her head, neck and waist while he, the second accused, stood guard at the deceased door and illuminated the scene of the crime with a torchlight. Further to the second accused's confession, all three accused persons made extra judicial confessions before PW1. This witness recalled to have recorded the extra judicial confession of the first and third accused persons on 4/7/2017 and on 5/7/2017, he recorded the confession of the second accused person. The three extra-judicial confession statements were admitted as exhibits Pl, P2 and P3. For the defence, each of the accused persons testified under oath and did not call a witness. In these testimonies, each of them distanced himself from the offence. They all alleged that when making confessions, they were not free agents because, while under police custody, they were severely tortured and forced to confess. The second accused testifying as DW2, narrated further that, on 3/7/2017 he was sent to a justice of the peace at the Primary Court of Singida at Utemini where he was received by a female justice of the peace to whom he disclosed the torture he had been through and the same was recorded in the extra judicial statement. When he went back to the station he was severely tortured before being sent to make a fresh extra judicial confession before PW1. In a nutshell, this is all that I gathered from evidence. Page 4 of 16 Further, at the closure of the defence, the parties prayed and were granted leave to file final submissions. I commend all the counsel for filing their submissions on time and in that regard, assisting this court in the dispensation of justice. I have thoroughly read and considered all of them. The sole issue awaiting determination is whether the information of murder against all the accused persons was proved. The law is settled that, for an offence to be said to have been proved against the accused person, the elements of it must have been proved and the accused sufficiently implicated as a culprit. In respect of the offence of murder against which the accused persons are charged, it has to be proved that the accused person, with malice aforethought, unlawfully killed the deceased. In cases such as the instant one where the offense is alleged to have been jointly committed by several people, it has to be proved that the accused persons, with common malice aforethought, unlawfully committed the offence. If in the end it is established that, they indeed jointly harbotired an evil intention and executed it by unlawfully killing the deceased, they would all be found guilty and suffer the same consequences as per sections 22 and 23 of the Penal Code, Cap 16 R.E. 2022. The onus to prove the commission of the offence, the common evil intention harbored by the accused person and their specific roles in the commission of the offence as principal offenders, aiders or procurers of the murderers, solely rests on the prosecution as it is a cardinal principle in criminal law that, the burden of proof in criminal cases rests solely in the prosecution. This is Page 5 of 16 the gist of section 3(2) (a) of the Evidence Act, Cap 6 R.E. 2022 read conjointly with sections 110 and 112 of the same Act. Section 3(2)(a) sets out the required standard of proof and specifically states that, in criminal cases, a fact is said to be proved when the court is satisfied by the prosecution beyond reasonable doubt that it indeed exists. The provisions above and the cardinal principle thereto, are a common subject in our courts and there is a plethora of authorities in fortification; see for example, Magendo Paul and Another vs. Republic [1993] TLR 220, Ally Bakari and Another vs. Republic [1992] TLR 10, Jonas Nkize vs. R [1992] TLR 213, Frank Richard Shayo vs R Criminal Appeal No. 333 of 2020 [2024] TZCA 230, TanzLII, Malimi Peter vs R Criminal Appeal No. 480 of 2020 [2024] TZCA 65 TanzLII and Matibya Ng'habi vs Republic Criminal Appeal No. 651 of 2021 [2024] TZCA 34 TanzLII. For illustration, I will quote the relevant part of the decision of the Court of Appeal in the latter case, Matibya Ng'habi vs Republic (supra). In this instructive decision of the Court of Appeal, it was held thus:- "At the outset, it is instructive to state that, this being a criminal case, the burden lies on the prosecution to establish the guilt of appellant beyond reasonable doubt. In Woodmington v. DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. The term beyond reasonable doubt is not statutorily defined but case laws have defined it. For instance, in. the case of Magendo Paul & Another v. Republic [1993] T.L.R. 219 the Court held that: Page 6 of 16 "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed. " It is noteworthy that, the duty and standard of the prosecution to prove the case beyond reasonable doubt is universal in all criminal trials and the duty never shifts to the accused." Keeping the above principles in mind, I have thoroughly assessed the evidence of both the prosecution and defence to ascertain whether, based on the evidence on the record, the two essential ingredients that is, malice aforethought (mens rea) and the unlawful act or omission from which the death occurred (actus reus) were established and whether the accused persons were sufficiently implicated. Starting with the actus reus, it had to be established that Nshoma Salawa,- the deceased herein, did not die a natural death and that her death was a result of unlawful act or omission. As per the evidence on record, there was no dispute on this fact. The prosecution and the defence were at common that the deceased's death was unnatural as it resulted from multiple cut wounds on his body. The expert evidence of PW3 who conducted a post mortem examination on the deceased's body and produced a report that was tendered and admitted as exhibit P5, demonstrated that the deceased's died of severe hemorrhage resulting from multiple cut wounds. Her body had multiple cut wounds on the head, chest and on right leg inflicted by a sharp object. It was, therefore, proved with no reasonable doubt that the deceased died from unnatural cause. Page 7 of 16 As regards the accused persons' alleged common murderous intent and their role in its execution, the prosecution was predominantly reliant on the confessions as contained in the cautioned statement of the first accused person (Exhibit P4) and the extra-judicial statements of all three accused persons. The extra-judicial confession of the second accused person was admitted as Exhibit P2 and those of the first and third accused person were admitted as Exhibit Pl and P3, respectively. Supporting these confessions is the oral testimony of PW2 who recorded the cautioned statement of the second accused person and PW1 who recorded all the extra-judicial confessions. / A suspect who confesses to the crime is regarded by law as the best witness as, principally, no witness can better tell the perpetrator of a crime than the perpetrator himself (see Jacob Asegelile Kakune v. Republic Criminal Appeal No. 178 of 2017 [2020] TZCATanzLII. Thus, a confession, made by a criminal suspect before a police officer or justice of the peace is admissible as valuable evidence capable of supporting a conviction even in the absence of corroboration (see sections 27(1) and 28 of the Evidence Act). However, for it to attract such weight, it must have been freely made as underscored under section 27(2) of the Evidence Act. If this is established, the confession will attract invaluable weight because, ordinarily, a voluntary confession deserves the highest credit as it is presumed to flow from the strongest sense of guilty. It is also incumbent that the so admitted of the nature encapsulated under section 3(1) of the Evidence Act which states that; (1) "confession" means- Page 8 of 16 (a) words or conduct, or a combination of both words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence; (b) a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence; (c) a statement containing an admission of all the ingredients of the offence with which its maker is charged; or (d) a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person making the statement has committed an offence; It is also important that the recording of the confession should have proceed in full compliance with the procedural legal requirement. Thus, if the confession was recorded by a police officer it has to be compliant with the procedure stipulated under the Criminal Procedure Act, Cap 20 R.E. 2022 and for those recorded by a justice of the peace, compliance with the Chef Justice's Guide to record extra judicial statement as published in A Handbook for Magistrates in the Primary Courts - Revised and Updated Version, January 2019, is required. As already stated, the confession at hand comprises of the confession of the 2nd accused as contained in his cautioned statement (Exhibit P4), as recorded by PW2 and the extra-judicial confession of all the accused persons (Exhibit Page 9 of 16 Pl, P2, and P3), all recorded by PW1. I will start with exhibit P4. At the admission stage of this confession, no objection was made. Thus, it was admitted with no objection but during cross-examination and in his defence, the 2nd accused alleged that the statement was not voluntarily made. The first and the third accused found this style attractive and adopted it. .Their objection to the voluntariness of their respective extra-judicial statements was similarly raised belatedly in cross-examination and defence. Undisputably, the raising of the objections at a belated hour after the confessions were admitted was a lucid misdirection and inconsistent with the established principle of law in that regard. The law requires that an accused person intending to object to the voluntariness of a confession must do so at the admission stage and not during cross-examination or defence. The. reason thereof is not far-fetched. As stated in a plethora of authorities, it is intended to give the trial court an opportunity to ascertain the voluntariness after hearing both parties in a trial within a trial which should mandatorily be conducted immediately after the objection is timely and appropriately made (see Shihoze Semi and Another v. Republic (1992) TLR 330, Nyerere Nyague vs Republic Criminal Appeal Case 67 of 2010 [2012] TZCA 103, TanzLII and Emmanuel Lohay & Another vs Republic Criminal Appeal 278 of 2010 [2013] TZCA 292 TanzLII. Raising the objection belatedly and in the style preferred by the accused persons herein presupposes that the objection is a mere afterthought calculated to serve the accused persons' capsizing boat. Had it been raised at the admission Page-10 of 16 stage its voluntariness could have been ascertained. Such ascertainment cannot be done at this stage. I am also mindful of the settled legal position that, even where a confession is neither repudiated nor retracted, the trial court is duty-bound, before acting on such confession, to satisfy itself, after considering all material points and surroundings, that the confession. The necessity was underlined in the case of Steven s/o Jason and 2 Others Versus Republic, Criminal Appeal No. 79 of 1999 CAT (unreported), where it was held that the admission of the confession and apportionment of weight, are two distinct things. The latter depends on the totality of the evidence at issue and other pieces of evidence available on record. As stated in Tuwamoi vs Uganda [1967] EA 84, if the confession is the only evidence against the accused person, the court must decide whether the accused has correctly related what happened and whether the statement establishes his guilt with the degree of certainty required in a criminal case. Let us start with Exhibit P4, in this confession, the 2nd accused person confessed that: on an unknown date and month in 2016, he was procured by the third accused person Mwandu Kashinje to kill a Nshoma Salala who was bewitching his farms; the third accused paid them a sum of eight hundred thousand (Tshs 800, 000/=) in cash; at around 11 hours (date and month undisclosed), he went to the home of Nshoma Salala being accompanied by the 1st accused person who is his young brother; while going there they were armed with a rod and machete; upon arrival, the third Page 11 of 16 accused entered the deceased's house and mercilessly assaulted her with a machete on the head, neck, and waist while he, the 2nd accused, remained guard holding the rod. The law is settled that the particulars on the charge sheet should align with the evidence. A variance or uncertainty if any, must be cured through an amendment of the charge sheet by invoking the provisions of section 234 of the Criminal Procedure Act which provides for amendment of the charge sheet at any time before the judgment. The consequences for non-alignment is dire. It is settled that, if the charge sheet is not amended and the variance persists, the charge will remain unproved (see the case of Leornard Raphael and Another vs. The Republic, Criminal Appeal No. 4 of 1992 (CAT-unreported) Joseph Sypriano v R Criminal Appeal No. 158 of 2011 [2012] TZCA 46 TanzLII, Said Msusa vs Republic, Criminal Appeal No. 268 of 2013 [2015] TZCA 76 TanzLII. When Exhibit P4 is compared with the charge sheet, they exhibit variances in the name of the. deceased. The name of the deceased appearing in the charge sheet is Nshoma Salawa whereas in Exhibit P4, the deceased's name is Nshoma Salala. The two names were not reconciled. Not only that, the law states that where the date of the incident is disclosed in the charge sheet, the prosecution must lead evidence to that effect else the charge would remain unproved see Abel Masikiti vs The Republic, Criminal Appeal No. 24 of 2015 [2015] TZCA 219 TanzLII and Justine Mteule vs The Republic, Criminal Appeal No. 482 of 2016 [2019] TZCA 99. In the Page 12 of 16 present case, the charge sheet shows that the offence was committed on 28th August 2016. The evidence led by the prosecution had to prove this fact. To the contrary, Exhibit P4 on the other hand, does not disclose the date of the incident. All it discloses is the year of the incident. Thus, unless it is corroborated, it cannot support the 2nd accused's conviction let alone the conviction of the first and the third accused person. On the part of extra-judicial confessions, the accused persons in these confessions admitted to have committed the offence and described the role of each of them. In them, there is a convergence on the following facts, that:- the third accused procured the first and the second accused to kill his mother as he believed that she was bewitching his children; the first and second accused person received a sum of eight hundred thousand (Tshs 800,000/=) as payment from the third accused person; the first accused was the principal offender. He mercilessly butchered the deceased on different parties using a machete while the second accused was lighting the scene of the crime with a torch as he stood at the door of the deceased's house. In my further scrutiny of each of the extra judicial statements, I have observed that although there was fair compliance with the steps for the recording of extra-judicial confession enunciated in the Chief Justice's Guideline on extra judicial confession and as applied in Japhet Thadei Msigwa vs. Republic, Criminal Appeal No. 367 of 2008 Criminal Appeal No. 337 of 2008 [2011] TZCA 108 TanzLII, Peter Charles Makupila @Askofu vs. Republic Criminal Appeal No. 21 of 2019 [2021] TZCA 197 Page 13 of 16 TanzLII and in a plethora of other authorities, the three statements exhibit some common anomalies. The common anomaly is the identity of the justice of peace. In Exhibit Pl, the extra-judicial statement of the second accused, the recorder of the extra- judicial statement identified himself as a 'magistrate' (name undisclosed). Thus, it is not even certain that it was recorded by PW1. For Exhibits P2 and P3, the anomaly is relatively minor. In exhibit P3, the extra-judicial statement of the second accused person, Mwandu Kashinje, the recorder is identified as 'Hakimu D.N., Patrick' and he consistently, thereafter, identified himself as a magistrate. And, in Exhibit P2, the extra judicial statement of the first accused, the recorder identified himself as 'Hakimu (Mlinzi wa Amani D.N. Patrick) and he subsequently identified himself as 'Hakimu (Mlinzi wa Amani)'. Athough this is curable under section 58(2) of the Magistrates' Courts Act, Cap 11 R.E. 2022 it is not far fetched, to think as I do, that it is crucial for a magistrate when performing his duty as justice of the peace, to introduce himself/herself as such so as not to confuse the suspect or anyhow compromise his voluntariness. The second anomaly is that they do not show whether their respective makers read them before signing or whether they were read over to them before signing them. In the case of Chamuriho Kirenge ©Chamuriho Julias vs. Republic, Criminal Appeal No. 597 of 2017 [2022] TZCA 98 TanzLII, the extra judicial statement, just as the ones at hand did not Page 14 of 16 indicate whether they were read over to the suspect. Commenting on such anomaly, the Court of Appeal held thus:- 'Among the stated omissions in the case at hand is failure to indicate that the document was read over to the appellant, which is fatal. It renders the statement highly suspicious as we cannot ascertain if the same was correct and it contains a full and true record of the appellant's statement. Thus, Mr. Nchanila's argument that the appellant was not prejudiced is not correct and further, his insistence that the appellant has made the statement out of his own free will is, with due respect questionable for lack of the said verification. Consequently, we expunge exhibit PEI from the record as prayed by Mr. Tuthuru." On the strength of this authority, while the first anomaly is excusable, the second is not. Borrowing the wisdom of the apex court of the land, I am fortified that Exhibit Pl, P2 and P3 should not attract any weight and they are consequently discounted. After discounting these three confessions, Exhibit P4 has remained with no corroboration because, exhibit P5 which is the only remaining evidence Nshoma Salawa. Hence it does not cure the disparity of name. Also it does not prove the date of death as no where does it state that the death occurred on 28/8/2016 and not on 29/8/2026, the date when the post mortem examination was conducted. Since I have already found that exhibit P4 cannot support a conviction in the absence of corroboration, the prosecution case has remained unproved. In Page 15 of 16 consequence, thereto, I dismiss the charge and acquit all three accused persons as they are found not guilty of murder. DATED and DELIVERED this the 14th day of June 2024. J.L. MASABO JUDGE 14/6/2024 Judgment delivered remotely through virtual court this 14th day of June 2024 in the presence of Mr. Hussein Mkeni, learned State Attorney for the Republic, Mr. Peter Ndimbo, learned counsel for the 2nd accused person also holding brief for Mr. Jackson Mayeka and Mr. Cosmas Luambano, learned counsel for the first and third accused persons respectively and in the presence of all the accused persons. The right of appeal is fully explained. J. L. MASABO JUDGE 14/6/2024 Page 16 of 16