R Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT SINGIDA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 10 OF 2023 THE REPUBLIC VERSUS 1. KASALA LUGOYE @ KASALA….…………………………………...…1ST ACCUSED 2. SHILA JOSEPH @ MTEMI.………………………………………..….2ND ACCUSED 3. JUMA SHILA @ MZIMBU………………………..………………..….3RD ACCUSED 4. JUMAPILI SHILA @ MZIMBU.…………..………………………..…4TH ACCUSED 5. JUMATATU SHILA @ MZIMBU………………………..…………..…5TH ACCUSED JUDGMENT Date of last Order: 28th June, 2024. Date of Judgment: 08th July, 2024. E.E. KAKOLAKI, J. The accused persons herein are jointly and together facing two counts of Murder; contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2002]. They are accused to have murdered Zephania Kitundu @ Kija @ Kija Kitundu Magau and Mwajuma Ramadhani @ Yindi who were husband and wife on the night of 09/12/2017 at Ishenga village, in Kinyangiri ward within Mkalama District in Singida Region. It is alleged on night of 09/12/2017 the two deceased persons who were asleep in two separate bedrooms with their two children, Ramadhan Zephania with his father and Bertha Zephania (PW5) with her mother, were invaded by 1 one man in possession of machete before he entered in the husband’s room, attacked him with a machete deeply cutting his neck and injured Ramadhani on his right leg. It is during that period when the wife (deceased) woke up from a sleep and rushed into her husband’s room followed behind by her daughter (PW5) in a bid to rescue her husband’s life before she encountered the attacker who also hacked her with machete on the neck and lower part of her head where she fell down and later on turned to PW5 who was trying to protect her mother by assaulting her also with the said machete on the upper part of both hands. Further to that the said attacker whom PW5 identified by face also attacked Ramadhan Zephania who was in his father’s bedroom. An alarm calling for help was raised by PW5 and met neighbours’ quick response including PW6 (deceased son) only to find the attacker had escaped from the scene of crime. A report was made by the village leaders to the nearest police station and the police officers including PW1 and PW8 attended the scene of crime in company of the doctor (PW4) who examined the deceased bodies and established their cause of death of both deceased to be due to Severe Haemorrhage (exhibits PE). Subsequent to that, crime investigation was mounted and in the course of interviewing different people at the crime scene it came into police officers knowledge that, the accused persons above were responsible for the said murder hence arrested and when interviewed the 1st accused allegedly confessed before the police officer (PW8) and justice of peace (PW9) in exhibits PE5 and PE6 respectively, to 2 have caused deceased’s death mentioning the 2nd, 3rd, 4th and 5th accused persons as his co-conspirators who hired him to execute the deceased for consideration of Tshs. 200,000/. The machete (exhibt PE1) allegedly used to assault the deceased was recovered from one Gabriel Shalua who had lent it to the 1st accused person. It is from that background the accused persons found themselves before the Court of law facing charges of Murder in two counts, contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2002] as mentioned above. When the charges were laid at their door all accused persons returned a plea of not guilty the result of which the prosecution paraded nine (9) witnesses and relied on six (6) exhibits in a bid to prove their charges beyond reasonable doubt. The summoned witnesses were SP. Joshua Ikongo (PW1), Irene Aloyce Ndumbaro -Ishenga Village Executive Officer (PW2), Gabriel Shalua (PW3), Dr. Lazaro Anderson (PW4) and Bertha Zephania (PW5). Others were Martine Zephania (PW6), Petro Joseph (PW7), Insp. Simon Mgonja (PW8) and Said Siri Said (PW9). The exhibits were, one machete (PE1), seizure certificate (exh. PE2), two reports on post –mortem examination of two bodies (exhibits PE3 and PE4), cautioned and extra – judicial statements (exh. PE5 and PE4). On the defence side the accused persons defended themselves sequentially as DW1, DW2, DW3, DW4 and DW5 with no exhibits to tender save for DW3 who relied on three receipt (Exh. DE1) for the purchase of one irrigation pump. 3 During the trial the prosecution was manned by three State Attorneys led by Mr. Almachius Bageda assisted by Mr. Nehemiah Kilimuhana and Mr. Godfrey I. Songoro while the 1st, 2nd, 3rd, 4th and 5th accused persons defended by Mr. Peter Ndimbo, Mr. Daniel Beno, Mr. Jackson Mayeka, Mr. David L. Deogratias and Cosmas Luambano, all learned counsel. I appreciate their time, tireless efforts and professionalism exercised in making sure that, hearing of this matter comes to an end hence this Judgment. It is worth mentioning that, due to tight schedule of the session both parties could not spare time to make their closing submission, instead they let the matter to the court for evaluation of the evidence hence determination of the accused persons’ guilty in respect of the charge facing them. It is a cardinal principle of law in criminal law that a party who alleges that an accused person committed an offence charged with must so prove and the burden of so proving rests on the shoulders of prosecution. See the provisions of sections 110(1) and (2) and 112 of the Evidence Act, [Cap. 06 R.E 2022] and the case of Nathaniel Alphonce Mapunda and Benjamin Mapunda Vs. R, (2006) TLR 395. The burden of proof will never shift unless otherwise provided by the statute or any other written law since suspicion alone is never sufficient to prove accused’s guilty, more so in serious offence such as murder. See the cases of Mohamed Said Matula Vs. R [1995] T.L.R. 3 (CA) and Nathaniel Alphonce Mapunda and Another (supra). 4 It is also settled law that, the standard of proof in criminal matters is that of beyond reasonable doubt. See section 3(2)(a) of the Evidence Act, [Cap. 06 R.E 2022] and the case of Nathaniel Alphonce Mapunda and Another (supra) It is trite law that, accused person does not bear a duty of proving his innocence but rather raise doubts to the prosecution case. See the case of Aburaham Daniel Vs. R, Criminal Appeal No. 6 of 2007, (CAT- unreported). It is so since conviction will never base on weakness of defence case but rather on the strength of prosecution case. See the cases of Mohamed Haruna @ Mtupeni and Another, Criminal Appeal No. 259 of 2007 (CAT-unreported). Having revisited the principles guiding the Court in determination of criminal matter this Court is now enjoined to determine the issue as to whether the prosecution proved its case beyond reasonable doubt against all accused persons. In discharging that duty it is not my intention to reproduce all evidence as adduced in Court by all parties as I will be briefly referring to it in the course of responding to the issue. As alluded to above the accused persons are facing a charge of murder of Zephania Kitundu @ Kija@ Kija Kitundu Magau and Mwajuma Ramadhani @ Yindi as explained in the two counts contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2002]. Section 196 of the Penal Code provides thus: 196. Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. 5 For the charge of Murder to stand three ingredients of the offence must be established by the prosecution beyond reasonable doubt. One that, the person alleged to have been killed is actually dead and died of unnatural death. Second that, it is the accused person(s) who is/are responsible for the said killing, if at all the first ingredient is established and third, whether the said murder was actuated with malice aforethought. To start with the first ingredient the issue is whether Zephania Kitundu @ Kija@ Kija Kitundu Magau and Mwajuma Ramadhani @ Yindi are dead and died of unnatural death. In proving this issue the prosecution paraded in Court PW1, PW2, PW4, PW5 and PW6 and relied on the two reports of post mortem examination of two deceased persons as tendered and admitted in Court as exhibits PE3 and PE4 respectively. It was in PW5 evidence who had slept with her mother Mwajuma Ramadhani @ Yindi in a separate room from her father’s room that, she witnessed the attacker whom she identified by face only with aid of bright solar bulb light assaulting her mother (deceased) on the neck and head with machete, when she (deceased) was attempting to rescue her husband on the fateful night before he latter on attacked her too on both hands with machete. Further to that PW1, PW2, PW4, PW5 and PW6 informed the Court that, they saw the two deceased persons whose bodies were found laid in one room with cut wounds on the neck and head, the wounds which were confirmed by PW4 (the doctor) who examined them to have claimed their lives. PW4’s evidence is collaborated with his own reports on post 6 mortem examination of the deceased bodies exhibits PE3 and PE4 that disclosed deceased cause of death to be due to Severe haemorrhage secondary to severe cut wound on neck, in respect of the deceased Zephania Kitundu @ Kija@ Kija Kitundu Magau and Severe Haemorrhage secondary to multiple and extensive cut wounds on neck and skull for Mwajuma Ramadhani @ Yindi. With that evidence there is no doubt and this Court is satisfied that, the two deceased persons are actually dead and their death was unnatural hence proof of the first ingredient by the prosecution beyond reasonable doubt. Next for determination is the second ingredient in which the issue is whether all accused persons are responsible for the deceased persons’ death. The prosecution evidence on this issue is based on three sets being direct evidence of PW5 as eye witness, 1st accused’s confession as extracted in both cautioned and extra judicial statements, exhibits PE5 and PE6 respectively and circumstantial evidence relying on the evidence of PW1, PW5, PW6, PW7 and PW8. To start with the first set of evidence on direct evidence, PW1 informed the court that, on the night of 09/12/2017 while asleep with her mother (deceased) in a separate room from that of her father who was also sleeping with her young brother Ramadhan Zephania, was awaken by the movements of her mother heading to her father’s room before she decided to follow her. That, on entering her father’s room her mother (deceased) encountered one 7 man who had put on dark grey coat/jacket whom they engaged in fight when she was trying to rescue her husband who had already been attacked, before she (PW5) joined the fight to rescue her mother from the attacker’s hands. This witness testified to have seen the attacker assaulting her mother with machete on the neck and head before he decided to move outside the house. That, in that course she pulled his coat/jacket and that is when the said attacker whom she identified by face with aid of bright solar powered bulbs that were in the father’s bedroom, corridor and outside the house, attacked her with the said machete on her both hands, before he returned in the father’s room and cut Ramadhan Zephania on the leg as he was trying to raise alarm. She said, when the attacker returned inside to attack her young brother she went outside and raised a hue which was immediately responded by his brother PW6 who was living close to them and narrated to him of what had happened and that, he identified that man by face. PW5 managed to identify the 1st accused person in Court, as the person she happened to see before the incident, twice when he came at their home to collect the sunflower seeds and once when she was going to school. When cross examined as to whether she knew his names before and if so why didn’t she mention him to the crime scene responders, she admitted to have not known her names before as she recognized him by face. There is no dispute that PW5 identified the 1st accused Kasala Lugoye @ Kasala as the person who attacked her, the deceased as well her young 8 brother on the fateful night, hence visual identification. However, I find the said identification to be weak and unreliable for being a mere dock identification as the settled law is that, identification of the accused person by a witness for the first time in a dock cannot be accorded credence without corroboration of identification parade. See the cases of Omari Iddi Mbezi & 2 Others Vs. R, Criminal Appeal No. 227 of 2009 [2021] TZCA 474 (14 September, 2021; TANZLII) and Siyoi Wilson Nicodemus and 5 Others Vs. R, Criminal Appeal No. 42 of 2022 (CAT) Tazlii. In the case of Siyoi Wilson Nicodemus and 5 Others (supra) the Court of Appeal observed thus: ’’It is settled law that the identification of accused persons by a witness in the dock for the first time cannot be given credence without corroborative evidence of identification parade. This is the position we stated in the case of Musa Elias & 2 Others v. The Republic Criminal Appeal No. 172 of 1993 (Unreported)’ ’ In this matter since PW5 alleged to have seen the attacker three times before the incident it was expected of her to have given descriptions of the said attacker to her brother (PW6) and other neighbours who attended the scene of crime in terms of body build, complexion, size, attire, or any peculiar body features, and repeat them in her statement to before the police officers for them to prepare and conduct the identification parade to test her memory in respect of that 1st accused identification before she is made to identify him in court. This in my humble opinion would have earned her credence when 9 identifying him in court. I find solace in the above view from the Court of Appeal decisions in the cases of Omari Iddi Mbezi & 2 Others (supra) and Siyoi Wilson Nicodemus and 5 Others (supra). It was held in the case of Omari Iddi Mbezi and 2 Others (supra) that: "The witness should describe the culprit or culprits in terms of body build, complexion, size, attire, or any peculiar body features, to the next person that he comes across and should repeat those descriptions at his first report to the police on the crime, who would in turn testify to that effect to lend credence to such witness's evidence....ideally, upon receiving the description of the suspect (s) the police should mount an identification parade to test the witness's memory, and then at the trial the witness should be led to identify him again. " Guided with above legal stance, in the present matter since PW5 failed to give descriptions of the attacker to either PW6 or the neighbours who attended the crime scene or at later stage to the police officers when recording her statement at police, I find her dock identification of the 1st accused person in Court is of no value and discount it. The second set of prosecution evidence as hinted above is 1st accused confession deduced from his caution statement exhibit PE5, before Insp. Simon Mgonja (PW8) and extra-judicial statement exhibit PE6 before justice of peace (PW9). It is this accused who according to PW2’s evidence (VEO) who was asked by the police officers to trace him on 10/12/2017 at about 17.00 hours, was found at his home and came with her (PW2) up to the 10 village office where his arrest was effected by the police officers. And that, during his oral interview with the police officers there at the village office confessed to have been responsible for the murder of deceased person while mentioning the family of Shila to have hired him to execute them for consideration of Tshs. 200,000/- in which by then Tshs. 30,000/- had already been spent to by a mobile phone while the remaining Tshs. 170,000/- kept in the custody of 1st accused wife. The two statements were admitted by the Court without objection from the defence side, presumably after PW8 and PW9 had given detailed account on how the same were voluntarily obtained from the 1st accused. I so view as confession or statement will be presumed to have been voluntarily made until objection to it is made by the defence on the ground, that it was either not voluntarily made or not made at all. See the cases of Twaha Ali and 5 Others Vs. R, Criminal Appeal No. 78 of 2004, Paul Maduka and 4 Others Vs. R, Criminal Appeal No. 110 of 2007, Sulemani Hassani Vs. R, Criminal Appeal No 364 of 2008 and Nyerere Nyague Vs. R, Criminal Appeal No. 67 of 2010, (All CAT- unreported). In his defence the 1st accused (DW1) denied to have been arrested at the village office claiming to have been arrested at his home by police officers who had private transport and taken to the village office where he found PW2 before he was transferred to Nduguti police station. He said when orally interviewed at the village office on his involvement in murder of the two 11 deceased persons, he denied any knowledge and so maintained even when he was at the police station despite of the being subjected to torture in a bid to force him to admit responsibility on the accusations of murder placed on him though he did not commit any. He said ,after being subjected to serious beatings for about 15 minutes, later on in the evening blindfolded with a piece of clothes was transferred from Nduguti Police Station to Iguguno Police Station and continued to be tortured there until 13/11/2017. It was on 13/11/2017 DW1 testified, when he was forced to sign some papers by police officers contents of which he did not known as he was sick and tired before he was thereafter asked to follow the police officers by foot and takne to one old man in certain building who greeted him and asked him to sign the papers which that were given to him by the said police officers. This accused claimed also to have known his co- accused by faces only as their names were known him when indicted with them before the Court. He testified to have attended the scene of crime on the night of 09/12/2017 in company of Gabriel Shalua (PW3) and stayed at the scene till morning when he returned home to continue with other activities before he was arrested in the evening of 10/12/2017. Generally he claimed to have signed both caution and extra- judicial statements involuntarily. I have dispassionately considered DW1’s defence more particularly his act of disowning both caution and extra – judicial statements on the assertion that were obtained involuntarily. It is settled law that, if the accused intends to 12 object a confession or statement must do so before its admission and not during cross examination or during his defence. See the case of Nyerere Nyague (supra). In this matter since the said caution and extra-judicial statements were never challenged during admission stage, I hold accused contention that the same were obtained involuntarily is nothing but an afterthought. Instead I find the two statements were voluntarily obtained. I so find as apart from 1st accused’s mere assertion that the same were obtained involuntary after he was subjected to torture, no cogent evidence was tendered to so prove to the Court’s satisfaction that, he was subjected to such claimed torture. Having so found it is this court’s duty to find out whether the confession in the said two statements is worth of basing conviction against the 1st accused person. To start with the caution statement exhibit PE5, having thoroughly gone through it, it is evident to the Court that, the 1st accused gave a detailed account on where was he raised before he moved to Ishenga village and how he was approached by Shilla family members hiring him to execute the two deceased person on the ground that were bewitching their family members. He said was born and raised at Igunga District in Tabora Region before shifting to Kinyangiri village within Mkalama District, where he settled from 2012 -2016 and got married and later on in 2016 moved to Ishenga village. According to him in March 2016 was approached by the family of Shilla Mzimbu with a request to execute Kija Kitundu @ Zephania and his wife 13 Mwajuma Ramadhan on the ground that were practicing witchcraft after bewitching their mother in which the 1st accused turned down the request but later on agreed and demanded for consideration of Tshs. 500,000/- which was reduced after negotiation to Tshs. 300,000/-. That, they gave him a space of one year before they resurfaced with the same request this time asking him to reduce the amount in which the agreed consideration was Tshs. 250,000/- but were ready to advance him Tshs. 200,000/-. In his narration the accused stated, on how they convened two meetings that were attend by among others Shilla’s family members, Jumatatu Shilla, Jumapili Shilla, Jackson Shilla, Juma Shilla and their father Shilla Mzimbu. It was in that meeting he explained, the agreed date for execution of murder plot was set to be 06/12/2017 but the mission was abortive as the attempt made on that day at about 22.00 hours failed after dogs burked at him and Zephania Kitundu (deceased) who was outside threw a club (rungu) at him which could not hit him as a result he ran away leaving behind his axe and one of his pair of sandals. He stated further that, the second and successful attempt was that of 09/12/2017 at 23.00 hours this time using a machete, where he collected a ladder from the deceased neighbour using it to drop inside Zephania’s house where he met him coming to the corridor from his room and attacked him with machete on the neck and head. As there was fracas he narrated further that, his wife came from another room to rescue him and was also cut with the same machete. And that, he also cut the deceased son 14 on the leg and his daughter on both hands before he fled from the crime scene passing at Shilla’s premises and given his money Tshs. 200,000/- by Shilla’s grandson, the money which he spent Tshs. 30,000 to buy a mobile phone while keeping Tshs. 170,000/ with his wife. According to the statement the machete used to cut deceased with was borrowed from on Ntandu Zakaria whom he handed it back after cleansing it at the river. And that, he also managed to attend the scene of crime at around 05.00 hours on 10/12/2017 where he stayed for a while before he went back home. Similar account was given in his extra-judicial statement exhibit PE6, something which leaves this Court without a scintilla of doubt that, what is contained in the two statement is nothing but the truth. I hold that view as there is no possibility that such detailed story could come from another person other than the accused himself as the police officer could not have known whether the 1st accused was born at Igunga, who were his parents, when did he shift from there to Kinyangiri village at Makalama District, where he got married before moving to Ishenga in 2016, the story which was never negated by him. The 1st accused’s confession on how the said murder was planned, the 1st attempt failed before the second one became successful and the way the attack was perpetrated, parts of the body in which the attacks were aimed at and who were injured at the scene as given in the caution statement, finds corroboration in the confession made in the extra-judicial statement exhibit PE6. I so find after having satisfied that, extra-judicial statement contains nothing but the truth 15 hence sufficient enough to corroborate another confession against the same person. Even if the same was repudiated or retracted still I could hold it has a probative value and therefore capable of corroborating 1st accused’s confession obtained from the caution statement (exhibit PE5) after satisfying myself that it is nothing but the truth as it was held in the case of Hatibu Gandhi and Others Vs. R [1996] TLR 12 (CA) where the Court of Appeal held thus: ’’Retracted uncorroborated confession, if truthful, can corroborate other evidence against the confessor.’’ Apart from the caution and extra-judicial statements corroborating each other, 1st accused account on how she attacked the deceased including Mwajuma Ramadhani and other members of the family also finds corroboration in PW5’s testimony in that, the attacker assaulted her (deceased) on the neck and PW5 herself on both hands as per the scars shown by her to the court and that, her young brother Ramadhan Kitundu also was cut on the right leg. Similarly PW6 confirmed PW5’s version when stated to have seen both PW5 and Ramadhani injured on both hands and right leg respectively. Further to that both reports on post mortem examination of deceased bodies confirm 1st accused’s version on the nature of wounds inflicted to both deceased and the areas they caused to be cut wounds on the heads and necks. The above aside there was also a machete with black rubber handle (exhibit PE1) which was tendered by PW1 and admitted in Court as a weapon allegedly 16 used by 1st accused to execute the deceased persons after it was borrowed by him from Gabriel Shalua (PW3) and seized from the later as exhibited in the certificate of seizure (exhibit PE2) the fact which was confirmed by PW3 that indeed the 1st accused borrowed it on 09/12/2017 and returned the same on 10/12/2017. However, in both statements the accused stated that, the same was borrowed from one Ntandu Zacharia whom the prosecution failed to tell his where about as Gabriel Shalua (PW3) did not also identify himself with other names of Ntandu Zacharia. Be it as it may, I do not find such discrepancy detrimental to the prosecution case as the 1st accused could have borrowed two machetes on the 09/12/2017, one from Gabriel Shalua and the other from Ntandu Zacharia but used the one borrowed from Ntandu Zacharia to execute the deceased persons and returned both to their respective owners on 10/12/2017. Thus, that does not necessary mean that it is exhibit PE1 which was used to execute his mission as he might have used the one from Ntandu Zacharia as per his confession. Since he confessed to have been responsible for the said murder and explained in details on how he executed it, this Court is satisfied that, the prosecution has managed to prove to the hilt that it is the 1st accused person who assaulted the deceased persons with machete hence responsible for their death. As to the rest of the accused persons the only available evidence against them is circumstantial one basing on exhibits PE5 and PE6 and the evidence of PW1,PW5, PW6 and PW8 as well as co-accused evidence for being 17 incriminated by the 1st accused’s confession in both exhibits PE5 and PE6. Now the glaring issue is whether such evidence is sufficient enough to warrant their conviction. Apart from being mentioned in exhibits PE5 and PE6 to have been involved in the planning and sponsoring both deceased’s murder, it was PW1 and PW8’s evidence during the trial that, when attended at the scene of crime managed to interview different persons including PW7 who volunteered information on how the 2nd, 3rd, 4th and 5th accused persons were involved in the plot to murder the deceased person following the accusations of bewitching their family members as well as existence of family conflict between the late Zephania Kitundu and Juma Shilla Mzimbu (3rd accused) over ownership of an irrigation pump/machine that allegedly was jointly purchased by the two in which the 3rd accused successfully claimed its sole ownership. That evidence was corroborated by PW5 and PW6 after PW6 informed the Court that it was the 3rd and 4th accused specifically who were extending the threats to kill his parents and the children. In their defence the 2nd, 3rd, 4th and 5th accused denied any involvement in the planning and sponsoring the alleged murder in collaboration with 1st accused as stated by PW1, PW5, PW6, PW7, PW8 and the 1st accused in his confession. They also denied to have accused the deceased of witchcraft practices as alleged by the 1st accused in both PE5 and PE6 and went on to testify in their defence DW2, DW3, DW4 and DW5 to the effect that, on the incident date they all attended the scene of crime as mourners before they 18 were arrested while there after the police officers had spoken to the deceased relatives inside the house and later on came outside mentioning their names before they were arrested and searched in their respective homes but found with nothing save for the 3rd accused whose irrigation pump/machine was seized. Further to that, the 3rd accused tendered in court three receipts exhibiting his ownership of the said irrigation pump/machine while denouncing the assertion that, there was dispute over its ownership that could have led to him develop grudges with the deceased persons hence plot to kill them. It is the law that, circumstantial evidence is sometimes the best evidence. It is so as it is an evidence that relies on inference to connect it to the conclusion of a certain fact rather than direct evidence. In other words, it is proof of the existence or nonexistence of an alleged or disputed fact, based on reasoning and not on personal knowledge or observation. See the case of Armand Guehi Vs. R, Criminal Appeal No. 242 of 2010 (CAT-unreported). For circumstantial evidence to stand against any party in criminal case the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, inculpatory facts must be inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt and that the inference is not weakened or destroyed by any other co-existing circumstances and thirdly that, the evidence must irresistibly point to the guilt 19 of the accused to the exclusion of any other person as each circumstance must be well tested. See the cases of Shaban Mpunzu@ Elisha Mpunzu Vs. R, Criminal Appeal No. 12 of 2002, John Magula Ndongo Vs. R, Criminal Appeal No. 18 of 2004, Julius Justine and Others Vs. R, Criminal Appeal No. 155 of 2005 (all CAT-unreported) and Armand Guehi (supra). In the present matter apart from being mentioned by the 1st accused person in exhibits PE5 and PE6 to have solicited and hired him to execute the said murder under consideration of Tshs. 200,000/- after several preparatory meetings with them, the prosecution never advanced any other evidence to corroborate the 1st accused confession or exhibit that, the said meetings were in deed conducted, the places were held and who attended them. The evidence of PW7 who allegedly heard from the 2nd accused that, the 3rd and 4th accused were involved in the said murder without more, in my humble view does not fill in the above referred gaps in prosecution evidence as he never attended either of the alleged preparatory meetings nor was he involved in any transaction by the 2nd, 3rd, 4th and 5th accused persons. Worse still when cross examined as to whether he believed the 2nd,3rd,4th and 5th accused person committed the offence of murder PW7 returned a negative response in that he did not believe so. As to the existence of grudges that must have resulted into the killing of the deceased the mere fact that, there was misunderstanding between 3rd accused and Zephania Kitundu over ownership of the irrigation pump and the accusations of witchcrafts that 20 allegedly propelled hatred between Shilla’s family and Zephania Kitundu’s family without any other evidence proving that, the accused took further step to plan and execute their plan, I find is circumstantial evidence which does not irresistibly point to the guilty of the 2nd, 3rd, 4th and 5th accused persons. I so do as mere presence of enmity amongst them does not amount to conclusive evidence that they planned and executed the said murder in collaboration with the 1st accused person. I therefore hold the circumstantial evidence relied on by the prosecution to prove 2nd, 3rd, 4th and 5th accused person’s guilty is weak and insufficient to base conviction against them. Lastly is on the evidence of co-accused (1st accused) which is exhibits PE5 and PE6, incriminating them to have planned, hired him and sponsored the said murder. It is trite law in terms of section 33(2) of the Evidence Act [Cap. 6 R.E. 2022] that, conviction of an accused person shall not be solely based on a confession of a co-accused as same has to be corroborated with other independent evidence. See also the cases of Pascal Kitingwa Vs. R, [1994] T.L.R 65, Abubakari Issa @ Myambo Vs. R, Criminal Appeal No. 34 of 2010 (CAT-unreported), Julius Charles @ Sharobaro and 2 Others Vs. R, Criminal Appeal No. 167 of 2017 (CAT-unreported) and a recent case of Nuru Venevas and 2 Others Vs. R, Criminal Appeal No. 431 of 2021 (CAT) Tanzlii. In this case since the circumstantial evidence which if strong would have corroborated co-accused evidence but has been found to be weak and insufficient to so do, this Court is satisfied that, it is unsafe to rely on 21 uncorroborated co-accused evidence of the 1st accused to convict the 2nd,3rd,4th and 5th accused persons and I so find. Thus the second issue is answered in affirmative in respect of the 1st accused person only and in negative against other accused persons. As to the last ingredients the issue now is whether when killing the 1st accused was actuated with malice aforethought. Section 200 of the Penal Code, [Cap. 16 R.E 2022] illustrates on what amounts to malice aforethought and it includes accused’s intention to cause death or grievous harm to a person whether such person is dead or not. It is a settled legal stance now that, normally an attacker will not declare his intention to cause death or grievous bodily harm. Therefore an inference of malice is drawn from various factors as once demonstrated in the case of Enock Kipela Vs. R, Criminal Appeal No. 150 of 1994 (CAT-unreported), where the Court of Appeal had the following observation to make: ’’Usually an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following: (1) the type and size of the weapon, if any, used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow or blows were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attacker's utterances, if any, made before, during or after 22 the killing; and (7) the conduct of the attacker before and after the killing.’’ Applying the above stated factors to the circumstances of this case there is no dispute as per 1st accused’s caution and extra-judicial statements and PW5’s evidence, the weapon used was a machete which in my opinion is lethal one and likely to cause death or grievous bodily harm depending on the parts of the body it was applied and the amount of force used. As to the parts of the body it was applied and the nature of injuries inflicted by the accused exhibits PE5, PE6 and PE3 and PE4 (Reports on post mortem examination) are self-explanatory. In both cautioned and extra-judicial statements the 1st accused made himself clear that using his machete he cut the deceased on their heads and necks. That fact is corroborated with the report of post mortem examination of Zephania Kitundu’s body (exh. PE 4) indicating that he had a loose cut neck with big wound. As for Mwajuma Ramadhan exhibit PE3 indicates that, she had extensive cut wounds on the neck and skull going down to the brain tissue, something which is indicative of the excessive force used by the attacker when assaulting them with machete. Though the attacker did not utter any word when attacking both deceased his act of assaulting them on the sensitive parts of the body and the use of excessive force coupled with the prior arrangement and agreement to execute the deceased for consideration of Tshs. 200,000/-, I hold is a clear manifestation of his intention to cause their death. Thus the third ingredient is positively 23 answered as this court is satisfied that the deceased killings by the 1st accused was so done with malice aforethought. In view of the above I find the 1st accused person guilty of the offence charged with as the prosecution has proved his charge in both counts beyond reasonable doubt. I therefore proceed to convict him with the offence of Murder, contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2002] on both counts as charged. Equally I find the evidence against the 2nd, 3rd, 4th and 5th accused incriminated by the co-accused evidence to be insufficient to warrant their conviction for want of corroborative evidence, hence proceed to acquit them of the offence of Murder charged with. It is so ordered. Dated at Dodoma this 08th day of July, 2024. E. E. KAKOLAKI JUGDE 08/07/2024. SENTENCE The 1st accused has been convicted with both counts of murder. The law is settled that, once the accused person is found guilty and convicted of Murder regardless of the counts, the only prescribed sentence is death by hanging. In this matter since the 1st accused person Kasala Lugoye @ Kasala is 24 convicted of Murder, I hereby sentence him to suffer death by hanging as provided under sections 197 of the Penal Code, [Cap. 16 R.E 2022]. It is so ordered. E. E. KAKOLAKI JUGDE 08/07/2024. Court: The Judgment has been delivered at Dodoma via video conference today on 08th day of July, 2024, in the presence of all five accused persons and their advocate Mr. Peter Ndimbo, advocate for the 1st accused who is also holding brief for Mr. Daniel Beno, advocate for the 2nd accused, Mr. Jackson Mayeka, advocate for the 3rd accused, Mr. Cosmas Luambano, for the 5th accused who is also holding brief for Mr. David L. Deogratius, advocate for the 5th accused, Mr. Almachius Bagenda, State Attorney for the Republic appearing from Singida and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 08/07/2024. 25