Movu

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA SUB-REGISTRY AT SUMBAWANGA CRIMINAL SESSION CASE NO.03 OF 2022 THE REPUBLIC VERSUS NIKAS s/o NAZARIO @M0VU Last order: April 25, 2024 Judgment: July 12, 2024 JUDGMENT NANGELA, J.: The accused, NIKAS S/O NAZARIO^MOVU, stands charged with the murder of LIVENCE S/O KALINDO. The incident is alleged to have taken place on the 05th day of August 2020, at Katapulo Village, Kalambo District, in Rukwa Region. The facts constituting this case are briefly that, on the earlier stated date, an explosion was heard at the village's business centre. It was closer to a building belonging to one Denisiano s/o Katongamo around 8.00 pm. The building housed the businesses of Augusta Maluko @Mama Kill arid Mr. Mbagala. While Mama Kili used to sell grilled meat (nyama choma}, Mr. Mbagala used to sell local brew. After the explosion which took place on the material date at the village business centre, people scattered, each trying to save his/her life. However, after the dust had settled, a few minutes later, it turned out that, one Livence s/o Kalindo, a resident of Katapulo Village had been shot dead. At first, the person who shot him could not be identified on the spot. Even Page 1 of 29 so, when the police investigated the matter, the accused was arrested as a suspect and, later, charged with the offence of murder of Mr. Livence s/o Kalindo contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E 2022, the offence for which he stands charged before this court. At the hearing of this case, the accused person denied the offence thereby necessitating a full hearing of the prosecution case. At such hearing the prosecution side called eight witnesses who testified as Pw-1 to Pw-8. The first witness for the prosecution was Nikas Katewa Alois. He testified as Pw-1. According to Pw-1, during the time when the murder of Livence s/o Kalindo took place, he (Pw-1) was the Chairperson of Katapulo Village. Pw-1 testified that, on the 5th day of August 2020, he received a phone call from one of his village residents called Mr. Mbagala, informing him about an explosion that took place at the village centre, an area closer to where Mr. Mbagala and Augusta Maluko @ Mama Kill run their businesses of a local brew bar and 'Nyama choma,' respectively. Pw-1 told this court that after such information had been confirmed to him by one Demensiano and that one person had fallen at the place, he decided to go and find out what had happened. Pw-1 told this court that, having gone nearby he identified the deceased by his face as one Livence s/o Kalindo who was in a pool pf blood as he was bleeding from the heard to the neck. It was Pw-l's testimony that he informed the police who arrived from Matai Police Post at the crime scene at around 2300hrs of the 5th of August 2020. Page 2 of 29 It was Pw-l's testimony that, having taken the police to the crime scene and informed them about those who used to carry out businesses, one of them being "Mama Kill" (Augusta Maluko), they went to her house, but they found nobody in the house. He told this court that together with the police, they searched the house as the house was not closed and there was nobody, not even the children although all other house utensils were found intact. Pw-1 told the court that they had gone to the house of Mr. Nikas Movu (the accused) because the deceased ad been found dead at the place where his wife, Augusta Maluko @ Mama Kill, was carrying out her business. He stated in his testimony that the accused, Nikas s/o Movu, had been sighted in the village at about 17 hours on the eventful date, and that the incident occurred at the village center at 20 hours later. He informed the court that, since Mr. Nikas was nowhere to be seen the police took the deceased's body, but he did inform the police that Mr. Nikas Movu could also be found in Mpulungu, Kasakamulo Village in the neighbouring country of Zambia, those being the places where he prefers to visit most of the time. ; Pw-1 told this court that, the deceased's body was sent to Sumbawanga Referral Hospital for further examination. He told the court further that on the 06th day of August 2020, himself and Asheri s/o Konstantino, the deceased's relative was shown the body of the deceased at the morgue which they identified and did witness a postmortem examination of the body. He told the court that the doctor who examined the body had told them that the deceased's death had been caused by a sharp object Page 3 of 29 that created two holes in the neck and the head. He testified that; they were given the body for burial. Pw-1 told this court that, he was able to identify to the court who was the said Nikas Movu whom he was referring to. He told the court that, after the death of Mr. Livence (the deceased), the accused was never seen in the village until his arrest by the police. During his cross-examination, Pw-1 told this court that, the accused was never again seen in the village after the murder incident and that, it was him who informed the police that the accused used to visit Zambia. He told the court that, on the; eventful day he did see the accused in the village at the place where his wife, Mrs. Augusta @ Mama Kill, used to carry out her business. During his re-examination, Pw-1 told this court that the accused used to tell them that he carries out his activities in Zambia and not Tanzania. Asked by the court, Pw-1 confirmed to have seen the accused on the place where and on the date when the deceased was killed. He told this court that he had led the police to the accused's house because the police had wanted to interrogate the accused and his wife since his wife was one of those who were doing business at the place and the accused had also been seen at her place of business on the eventful day. The second witness was Mrs. Augusta d/o Malko who testified as Pw-2. Pw-2 is a spouse to the accused person. In view of that, before testifying, she was addressed in terms of Section 130 (1) of the Evidence Act, Cap. 6 R.E. 2022. Having known her rights under the law, she was very willing to testify Page 4 of29 against her husband, stating that nobody had compelled her to do so. In her testimony, Pw-2 told this court that, she is also referred to as Augusta Kasiaho Minso and lives in Katapulo Village, Kalombo, Rukwa Region with her husband, Nikas s/o Nazario Movu, the accused person. Pw-2 testified that she used to do "nyama chornst' business at Katapulo. According to Pw-2, her business was carrying it at a local brew bar belonging to. one Datus Mbagala in premises belonging to Denisiano s/o Katoungama. She told this court that she knew the deceased Livence Kalindo as he also used to live in Katapulo Village though she did not have a relationship with Livence Kalindo. According to Pw-2, on the 5/8/2020 she was at her business of selling meat at the bar of Mr. Datus Mbagala. She told this court that, as she was there, she heard a loud explosion like that of a gun "Puuuuh". She told the court that, at the time, there were many people there since it was a bar, that, the owner of the bar was there, and that, when the sound of such an explosion was heard, the deceased fell right where Pw-2 was. It was Pw-2's testimony that, when she rose up (meaning that she also fell), she found the deceased bleeding from the head. Pw-2 told this court that there were solar lights, so she could see the deceased. According to Pw-2, after witnessing the incident, she hurriedly closed her business and went home, given that many people were also running away from the place. Pw-2 told the court that as other people ran away, she did not know where her husband was, but when she reached home, she found Page 5 of 29 him there sitting, and he told her that they should leave the place. According to Pw-2, when she asked the accused where they were to go, her husband insisted that they should go. Pw-2 told the court that, when she told her husband that someone had been killed and that is the reason why she had come home, the accused said nothing at the time but kept insisting that they should leave the place. Pw-2 testified that they left for Zambia on foot the same night using the unofficial (bush) routes and slept at one of the bush camps away from the village. It was Pw-2's testimony that, having gone through the bushes on foot, they boarded a boat in the morning and went to Kasamulwa, Zambia where they stayed for three weeks, and her husband was later arrested, Pw-2 told this court that, while in Zambia, Pw-2 asked the accused what he had done. According to Pw-2, the accused responded saying: "Hmm! we, ni mimi nimefanya hicho kitendo ... cha kumpiga risasi Livence Kalindd'. (Freely translated to mean: Hmm! You know it is me who committed the act... the shooting of Livence Kalindo." Pw-2 told this court that, having heard such words uttered by her husband, she remained quiet and, afterwards, while the couples were in Zambia, the accused was arrested, and Pw-2 returned to Tanzania through Kisumba route. In her further testimony, Pw-2 told this court that, later, she was also arrested by Giles Movu and Anicet and was brought to Matai Police Page 6 of 29 Station. She told the court that, at the time, she was living in Kisumba, Kasanga area, where she had gone to stay with her relatives. According to PW-2, while at Matai Police Station, she was interrogated about the murder of Livence Kalindo and narrated to them what had happened. Pw-2 told this court that, her husband used to be a traditional healer (Mganga wa Kienyeji) and used to practice her traditional medicinal practices in Zambia. During cross-examination, Pw-2 told this court that she did not see her husband shooting the deceased on the material date and that her husband did not own a gun or home-made guns. She admitted, however, that her husband used to visit Zambia for his business, and sometimes she would stay there longer than normal. She told the court that her husband was not there at the crime scene but there were many people on that day, so she could not see who specifically shot the deceased. She also admitted that, at the time the incident took place, she was unaware of where her husband was until she found him at home. Pw-2 told the court that, it was her husband who confessed to her that he was responsible for the shooting and killing of the deceased. She told the court that she arrived in Zambia on the 9th of August 2020 but knew nothing regarding how her husband was arrested while in Zambia. During re­ examination, Pw-2 told the court that, when the murder incident took place, she knew that her husband was at home in Katapulo Village. She also informed the court that, at the time when the Page 7 of 29 shooting incident took place, there were many people, but she did not see the killer. She admitted that it was, however, her husband who told her that he was the killer of Livence Kalindo. When asked by the court, Pw-2 stated that she did not ask her husband anything more after he had told her that he was the person who killed the deceased Livence Kalindo. She told this court that although her husband did not tell her anything about the gun, he did tell her that he was the one who killed Mr. Livence Kalindo. That marked the end of Pw-2's testimony. The third witness was Mr. Demesiano s/o Katongama. He testified as Pw-3. His testimony was only a confirmation that he had rented his house to Pw-2 and Datus Mbagala where the two used to do "Nyama Chomaf' business and local brew. He also confirmed that, on the ,05th of August 2020, while drinking local brew with his other colleagues at Cletus Mitimingi's house, an explosion was heard and, many people had scattered away. He himself returned home. He told this court that, on his way home, he did see the deceased laying on the ground near Pw-2's place of business and that, together with the village chairman, efforts were made to inform the police, who came and took the deceased's body. During cross-examination, Pw-3 told the court that he did not see the accused killing/shooting at the deceased. However, he confirmed that the incident took place at around 8:00pm and the police were called by the chairman at around 8:30 pm and, that, they came at around 11.00pm. Page 8 of 29 The fourth witness for the prosecution was Giles s/o Nazario Movu. He testified as Pw-4. His was a testimony that, he is a relative (half-brother) to the accused, the accused being from the junior wife (mother), but both share the same. Pw-4 told the court that the accused has two wives, one being Pw-2, while the other is called Lusiata d/o Masanja. He informed this court that, the accused was a peasant but later turned out to be a traditional healer (Mganga wa Kienyefty Pw-4 informed this court that, on the 05th day of August 2020, at around 8.00 pm, he was at Enos s/o Emanuel's kiosk when he heard an explosion like a tyre burst: "Puuuh". It was his testimony that, after that explosion, he went home, passing by one Amos s/o Beda to buy a voucher for his phone for communication. He told the court that, as he was buying credits for his phone, one of his in laws (shemeji) whose name he could not remember, told him that Livence s/o Kalindo (the deceased) had been killed. Pw-4 told this court that he knew the deceased because his brother was married to one of his sisters. Pw-4 testified further that, on the same day, he decided to go and spend his night at his farmland since he was scared that police would come and randomly arrest people in the village. However, as he was going to his farmland, he met the accused and his wife (Pw-2) going towards their son's house, which was about 50 walking steps from where Pw-4's house was and about 300 steps from the accused's house. Pw-4 told the court that, the accused and his wife were carrying a bucket with goat meat. He testified that, upon asking where they were heading to, they told him 'Huko tulikotoka kumechafuka" Page 9 of 29 (freely translated to mean: "where we are coming from, there was a commotion") and, therefore, they were going to leave the meat at his son's house, a fact which they did and then left. He told this court that the accused was pulling his wife's hand as she was reluctant to follow him and the two went away. According to Pw-4 he returned to his house and on the 6th day of August 2020 and on the day of burial of the deceased Pw-4 heard that it was Nikas s/o Movu (the accused) who killed the deceased Livence s/o Kanondo. He told this court that, after some time had passed, he did overhear that the accused was threatening to "cleanse hini'( Eliji s/o Movu as well as Demensiano s/o Katongama but the accused was arrested while in Zambia. During cross-examination, Pw-4 told this court that he did not see the accused killing the deceased. However, he told this court that on the material date, he did come across the accused and his wife, and the two were running away just like what he was doing. The fifth witness was F.7205 Sgt. Said, who testified as Pw-5. In his testimony, Pw-5 told this court that, previously, he was a police detective at Kalambo. He testified that, on 06/08/2020, while in his office, he was directed to investigate and re-inspect a crime scene that the police had visited on the night of 05/8/2020. Pw-5 was to draw up a sketch map, which he tendered in court, and the same was admitted as Exh.P-1. The sixth witness was Mr. Elias s/o Fa les Mkama, a. Primary Court Magistrate for Matai in Kalambo District, Rukwa Page 10 of 29 Region. He testified as Pw-6. His testimony was to the effect that, as a Justice of the Peace at his jurisdiction, he ordinarily takes confessions of accused persons in accordance with the law and available guidelines. He informed this court that, on the 08th day of September 2020, while at his office, a police officer named D/C Rajab (now deceased) brought the accused for the purposes of recording a confession. According to Pw-6, he recorded the accused's confession in the absence of the police officer and as per the Chief Justice's guidelines. Pw-6 testified that, at the time, the accused was in good health, with no injuries or bruises, and that, before recording his statement, Pw-6 informed him of his rights under the law, including the right to remain silent or explain what transpired, and that his statement could be used as evidence in court. Pw-6 testified further that, after being informed of his rights, the accused was ready and willing to record his statement. He told this court that he recorded the accused's statement and that, after reading it over to him, the accused confirmed that what was recorded was correct as he had narrated it. Pw-6 tendered the statement in court, and it was admitted as Exh.P-2. In short, Pw-6 told this court that the accused person confessed having killed Livence s/o Kalindo. During cross-examination, Pw-6 informed this court that, the accused told him that he was arrested at 7-00am on the 4th of September 2020. He also confirmed that, when the accused was brought before him, he neither had injuries/bruise on his body nor was he limping, but he was in his sound healthy state. Page 11 of 29 Pw-6 told this court that, according to the accused's confession, the murder incident took place at around 7:45 pm and that the reasons for the killing were two: first was an allegation of witchcraft, alleging that the deceased was bewitching his cows and, the second was an issue of jealousy. The seventh witness was a medical doctor named MD Mshanga s/o Mjenia. His testimony was received online, subject to compliance with Rule 4 (1) of GN. No. 637 of 2021. He informed this court that, before shifting to Moshi, where he is currently based, he worked as a medical doctor at Sumbawanga Referral Hospital, where, among other things, he carried out postmortem examinations when needed to do so. According to Pw-6, on the 06th of August 2020, he was tasked with carrying out of a postmortem examination of the deceased Livence Kalindo, his body having been identified by one Asheri s/o Konstanino. Pw-7 informed the court that, having performed the postmortem examination, he prepared a report. He informed the court that, in his scrutiny of the body, he observed that the deceased's right side of the skull was broken, and, on the neck, he noticed two holes. Pw-7 told the court that, as per his examination, the deceased died of excessive bleeding on the head and in his brain. He tendered in court a report that he had prepared and signed during the examination, and this court admitted it as Exh.P.3. Pw-7 told this court that, as regards Part 6 of the report, he had accidentally skipped to fill-in the name of the deceased that being a human error. He testified, however, that, as per Part 5 of Exh.P-3, he got the name of the deceased from his Page 12 of 29 relatives, who had identified the deceased by name. During cross-examination, Pw-7 told this court that, he had filled in the name of the report as PF 99 and admitted that he did not fill in the name of the deceased. There was no re-examination of this witness, and this court proceeded to receive the testimony of the last witness, who was police officer G.3712 D/C Casto. He testified as Pw-8. In his testimony,is court that, he informed the court that he has served the Police force for the past 12 years as an arresting and interrogation officer. According to Pw-8, on 05/08/2020 while at his duty station, he was informed of a murder incident that took place in Katapulo Village, Mkoe Ward, Kalambo District, Rukwa Region. He testified that, having gone to that village and met the Village chairperson, he also visited the scene of the crime where he found the body of the deceased Livence s/o Ignas Kalindo. He informed the court that the village chairman informed him that the accused Nikas s/o Movu was the suspect as his wife (Pw-2) used to carry out the business of selling "Nyama Choma" and Soup at the place. Pw-8 testified that when they proceeded to the accused's house, he was not there, and nobody was found in his house, but the doors were unlocked. According to Pw-8 upon inspecting the house none were found. Thereafter, Pw-8 took the body of the deceased to Sumbawanga Morgue, and it had head and neck injuries. He also opened an investigation file No. KLB/IR/537/2020 on the 06/08/2020 and interrogated various witnesses. According to Pw-8, the accused was seen at the crime scene on the material date and later the incident took place. Moreover, according to his Page 13 of 29 investigation, he was informed that the accused (Nikas s/o Movu) did the killing because he used to allege that the deceased was bewitching him and had love affairs with his wife. Furthermore, Pw-8 confirmed that the accused was later arrested Nikas while in Zambia after the Zambia Police informed their counterparts in Tanzania that they had arrested him and that he was at Mpulungu Police Station on charges of illegal entry. He testified further that on 07th of September 2020 together with other police officers they proceeded to Mpulungu, Zambia and were able to be handed the accused person even without there being a legal assistance process since the Tanzania Police maintain good relationships with their counterparts in Zambia. According to Pw-8, the accused was brought from Zambia to Tanzania while in good health, and he was later charged with the offence of murder. Pw-8 stated that, during interrogation the accused did tell him that he was the culprit who shot dead the deceased because the latter was bewitching his family and of having love affairs with the Accused's wife. Pw-8 told this court that after interrogation, one DC Rajab sent the accused person to a Justice of the Peace on the September 08, 2020. During cross-examination and re-examination, Pw-8 admitted that he did not tender any document to show that the accused was arrested while in Zambia but confirmed that, his arrest was made possible based on existing our good relationship with the Zambian Police. Pw-8 confirmed to the court as well that the accused person was never tortured. That was all for the prosecution case which came to an end. Page 14 of 29 After hearing all the witnesses for the prosecution, this court made a finding that the accused had a case to answer and, having addressed him in terms of section 293 (2) of the Criminal Procedure Act, Cap, 20 R.E 2022, the accused elected to call no witness but defended himself as Dw-1 as he chose to testify under oath. In his defence, Dw-1 told this court that, his name is, indeed, Nikas s/o Movu and used to live at Katapulo as a peasant, and, that, he also does his business between Tanzania and Zambia and along the shores of Lake Tanganyika. Dw-1 testified that, on the 5th of August 2020 he was at his home in Katapulo Village around 8:00 am with his wife who later went out to pick her belongings at her place of business, where she sells " Nyama-chomd'. Dw-1 told this court that as his wife went out, he did not know if her wife (Pw-2) arrived at her place of business or not, she returned while running and told Dw-1 that, where she was going, she did riot even open her business since there was an something which had exploded like a motorcycle tyre and someone fell and was laying on the ground. According to Dw-1, he advised Pw-2 that they should hurriedly move away as there were possibilities that she would be questioned over that matter which she did not have any clue about. He told this court that Pw-2 went to her relatives in Kisumba Village, and himself headed to Zambia where he earlier was. According to his testimony in defence, Dw-1 stated that they had left because there is a tendency at the Village that, whenever any bad incident takes place, the Police would come Page 15 of 29 and torture people. He testified that he was arrested while in Zambia by the Zambian Police because my Passport had expired and was sent to Mpulungu Police Station in Zambia. He informed this court that, while in Zambia, he was alone and he stayed in the Zambian lockup from 4th of September 2020 up to 7th of September 2020 when, around 11.00pm, some people in civilian clothes came to take him away in their pickup truck, and was later locked up at IMatai Police Station at Kalambo, Sumbawanga where he remained until 10.00 am of 8th September 2020, when he was transferred into another room to write a statement. Dw-1 testified further that he had asked the Police that he had Wanted a relative or Village Chairman to be present, but the Police tortured, handcuffed, and hit me him with clubs and was left hanging over an iron bar in attempt to forcing him to tell them the truth. He testified that, later one of the Police sent him to a Justice of the Peace and told him to confess the offence. He informed this court that, when the Justice of the Peace wrote his statement the police, only three of them were in a room. / According to Dw-1, he never knew the deceased Livence s/o Kalindo and nor did he kill him, nor has he been involved in any murder. DW-1 told the court that he had just been "framed- up" in this case and it was also not true that he had confided to his wife that he was the one involved in the killing of the said Livence s/o Kalindo. He testified that it was not true that he killed the deceased as he had not been involved in any criminal incident at their village. Page 16 of 29 When Dw-1 was cross-examined, he testified that he had lived at Katapulo since his birth and that, he knew all the witnesses who testified in this case. He stated that it was his wife Pw-2 who told him that there was an explosion and that there was a person who had fallen but when he ran to Zambia without knowing who that person was. He told the court that he did not know the deceased but only came to know about his death while in court. He testified that since his Village is large, he did not even attend his burial as he was away and could not have known that he had passed on. According to Dw-1, when he ran to Zambia, he was not just alone, as many people had run away from the village as one of the witnesses for the prosecution testified. Dw-1 told this court that, when his wife came and told him about the explosion and that a person had fallen, Dw-1 decided to run away to Zambia in the following morning since he had spent the night in his house till morning, though his wife was the one who ran away in that fateful night so that Police should not arrest her. When further cross-examined he told the court that he did not ran away but rather left for Zambia through the ordinary means. He, however, told the court that he did not sleep in his house but in another house as he had two houses at the Village. Dw-1 stated that he could not have seen Pw-1 on the night of 05/09/2020 because he went to sleep in another of his house. So, Dw-1 told the court that he had travelled to Zambia by bus called Kambole Express and paid 3000 TZS as fare and later walked on foot crossing river Kalambo without seeing the border police. Dw-1 told the court that he was tortured by the Page 17 of 29 police at Matai Police Station. He also stated that, when he was sent to the Justice of the Peace, the police had pressed on him to confess as the case was a framed-up case. During re-examination he told the court that he had three houses and that he was arrested while in Zambia as his passport had expired. When asked by the court, Dw-1 told this court that, he had gone to Zambia on the 06th of September 2020 where he stayed for a month. He stated that he indeed went to Zambia on bus and had been issued with a bus ticket. He told this court that he had no quarrel with his wife (Pw-2) and his 2nd Wife is at Katapulo Village and that on the fateful night he left, he had told her to run away. He admitted having failed to call his second wife as his witness because she knew nothing about the case at hand. So far that has been the case for the defence. In summary, that is all that the witnesses testified in support of the prosecution case and the defence case. Having summarized their testimonies, I will now consider the merits or otherwise of the case before me. As the charge sheet (information) indicates, this is a murder case. This being a criminal case, there are parameters that need to be strictly proved and the burden of doing so is on a beyond reasonable doubt's threshold, which burden never shifts but remains on the shoulders of the prosecution throughout. See the case of Mariki George Ngendakumana vs. Republic, Criminal Appeal No. 353 of 2014 (CAT) (Bukoba) (Unreported). It is also trite law that an accused person has no duty to prove his innocence. As already stated, it is the prosecution side that bears the duty to prove, beyond reasonable doubt, that the Page 18 of 29 accused is guilty as charged. Besides, since it is the prosecution that alleges, the principle remains that, he who alleges must prove. Sections 110 of the law of evidence and the cases of Jasson Samson Rweikiza vs. Novatus Rwechungura Nkwama, Civil Appeal No.305 of 2020 (unreported), Said Hemed vs. Republic [1987] TLR 117 and Selemani Makumba vs. Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006), harbour that principle. As per the charge laid against the accused person, the accused is facing the offence of murder contrary to section 196 and 197 of the Penal Code, Cap.16 R.E 2022. In law, if the prosecution side is to prove that kind of offence, it must establish, beyond reasonable doubt, the following four elements: (a) The deceased is dead, (b) his death was because of an unlawful act (unnatural cause), (c) that the accused person is responsible for his death; and . (d) before executing the act of murder, the accused harboured an evil intent or malice aforethought. In the case before me, there is no dispute that the deceased, Livence s/o Kalindo, is dead and that, his death was unnatural. The testimonies of Pw-1 to Pw-7 and Exh.P-3 do prove and confirm such a fact. As such, the issues regarding whether Levence s/o Kalindo is dead or not, or whether his death was natural or otherwise, are undisputed. The second and third questions or issues to be responded to and be proven beyond reasonable doubt are whether it was the accused who Page 19 of 29 killed him and, if so, whether he had the necessary malice aforethought. Now, if one is to respond to the remaining two issues above, there is a need to look at the entire circumstances surrounding the case at hand, since there was no direct evidence that the accused was seen shooting at the deceased. The case is, therefore, anchored on circumstantial evidence. In law, reliance on circumstantial evidence to establish the guilty of an accused person would require such evidence to irresistibly lead to on one conclusion, that is, the accused person is the one who committed the offence and no other person and, hence, he is guilty. The cases of MashakaJuma @Ntantula vs. Republic, Criminal Appeal No 140 of 2022 (CAT) (unreported) and Jimmy Runamgaza vs. Republic, Criminal Appeal No. 159 of 2017 (CAT) (unreported) are some of the relevant authorities in support of that view. As the evidence oh record indicates, the testimonies which need to be looked at keenly to establish whether the accused person committed the offence are the testimonies of Pw-1, Pw-2, Pw-4, Pw-6 and Pw-8. In the first place, the testimony of Pw-1 is only relevant to the extent of indicating that, when he went to the accused's house around 23.00hrs of the 5th day of August 2023 after the murder incident had taken place, neither the accused nor his wife, or anybody else, was found at home and the doors were left unlocked. Pw-l's testimony did also point to the fact that, the accused was a suspect since his wife, Pw-2 used to do business at the place where the murder took place and, Pw-1 had also Page 20 of 29 seen the accused at such a place around 17.00hrs of the same day. However, after the murder incident, the accused and his wife were nowhere to be traced on the material night. Pw-2 and Pw-3's testimonies (even the testimony of the accused himself as Dw-l's) help to shed light on the fact that, indeed, the accused was present within the village on the date when the crime was committed. Pw-2 and Dw-1 (the accused) do admit that he (Dw-1) and Pw-2 left for Zambia soon after the murder incident had taken place. In law, where "A" is accused of a crime, and he/she was antecedent to the commission of such an offence, seen within the vicinity but that, after the commission of the alleged crime, he/she absconds and is nowhere to be seen, such are all relevant facts to the fact in issue. Looking at the facts as narrated by Pw-1, Pw-2, Pw-4, Pw- 8, and the testimony of Dw-1, they ail match the illustration given herein above and, constitute the evidence of conduct which is relevant and admissible under section 10 (2) of the evidence Act, Cap. 6 R.E. 2022. But there is yet another piece of evidence worth taking note of. This is the testimony of Pw-6 and the extra-judicial statement of the accused which Pw-6 recorded and was admitted by this court, without objection, as Exh.P-2. According to Pw-6 and, as Exh.P-2 indicates, the accused confessed to being the person who killed the deceased. Pw-6 told this court that, the accused person stated two reasons why he killed the deceased: one, is an allegation of witchcraft, alleging the Page 21 of 29 deceased was bewitching his cows and, the second, was an issue of jealousy. As I look at page 6 of Exh.P.2 the following are the exact words which the accused stated before the Justice of the Peace, and which, in law, constitutes a confession. I quote in Kiswahili: . tarehe 05/08/2020 ndipo niiipomkuta na mke wangu nje ya baa ya Kantongama waiikishana nyama, ndipo hasira ikanipanda, ndipo nikamuua kwa bunduki aina ya Grind Hiyoietwa kwangu kwa ajiii ya marekebisho hapo nyumbani, na muda huo niiipomuua iiikuwa saa mbiii kasoro usiku." (Freefy translates to mean: "...on the 05th of August 2020, I found my wife outside Katongama's bar and .-the two were feeding each Other with meat. I was angry and shot him with a gun, Grina-type, which was brought to me for maintenance, and I killed him around 19:45 hrs" As I stated earlier hereabove, the words stated by the accused constitute a confession . As per the holding of the Court of Appeal in the case of Geofrey Sichizya vs. DPP (Criminal Appeal 176 of 2017) [2020] TZCA159 (30 March 2020): "It is settled that an oral confession made by a suspect before or in the presence of reliable witnesses, be they civilian or not; may be sufficient by itself to found conviction against the suspect.” Page 22 of 29 However, in that decision, caution was given to the effect that, such reliance will be possible if the suspect made it as a free agent. That is in line with what section 3 (1) (a)(b) c) and (d) of the Evidence Act, Cap. 6 R.E 2022 stands for. That being said, I find it imperative and worth noting that, although in his defence the accused person contended that he was tortured and/or forced to confess the crime before the Justice of the Peace, it is on record that when the Exh.P-2 was being tendered in court, the accused person did not raise any objection against its admissibility. The law is clear that a confession will be presumed to have been voluntarily made until an objection to it is made by the defence on the ground that it was not so, or that it was not made at all. See the cases of Paulo Maduka & Others (supra), Selemani Hassani vs. Republic, Criminal Appeal No. 364 of 2008 (CAT) (unreported), and Twaha Ali & 5 Others vs. R, Criminal Appeal No. 78 of 2004 (CAT) (unreported). As noted herein, earlier, Exh.P-2 was not objected to when it was tendered in court. That fact meant that there was agreement that the accused person made it voluntarily. ? It is also on record that, while being cross-examined, Dw- 1 also told the court that the Justice of the Peace had nothing threatening but only a pen and a paper and that he was not beaten. With all that in mind, the statement complied with the guidelines for recording an extra-judicial statement. Besides, when Pw-6 testified, he was clear that, when he recorded Exh.P-2 the accused was in good health, was fully aware of his rights and showed no signs of being tortured. For Page 23 of 29 that matter, it is my findings that, the accused recorded Exh.P-2 as a free agent, and Exh.P-2 is an important piece of evidence. But more important and worth noting is the fact that, the testimony of Pw-6 and the narratives made in Exh.P.2 are corroborated by the testimony of Pw-2. As it may be noted, Pw-2 was a spouse of the accused and testified having been made aware of her rights under Section 130 (1) of the Evidence Act, Cap.6 R.E 2022. Further, it was the testimony of the accused, when asked by the court (testifying as Dw-1), that, he had no quarrel with Pw-2, with whom he had 8 children. In her testimony, apart from the fact that when she went home after the explosion which made people to scatter away from her place of business, Pw-2 testified that, when she went home and found the accused there, the latter hurriedly forced Pw-2 to flee, together with him, to Zambia, and, that, while in Zambia, the accused divulged to her that he was the one who shot and killed the deceased. From the above analysis of the evidence availed to this court, even though no direct witness saw the accused committing the offence, his own oral confession before Pw-6 which was admitted as Exh.P-2 and corroborated by the testimony of Pw-2, and taking in account his conduct subsequent to the commission of the offence, all these points to one conclusion, that it was the accused person who committed the murder of Livence s/o Kalindo. It is a cardinal principle of criminal law that the mere commission of an act (offence) is not necessarily sufficient to establish criminal liability of the offender Page 24of29 unless the same is accompanied by the necessary guilty mind (mensrea). That long established golden principle is summarised by the Latin Maxim:' Actus non'-fecit ream nisimens sit rea' that translates to "the act does not make a person guilty unless the mind is also guilty." This principle, as noted herein is one of the fundamental aspects of criminal law. From such an underlying principle of law and, having made a finding that the accused Nikas s/o Movu was responsible for the killing of the deceased, the immediate question that follows is whether the accused committed such actus reus (the murder of Livence s/o Kalindo) while harbouring the necessary mental state or intent to commit the crime. In a murder case, the necessary mental state (mensrea) is what is referred to as malice aforethought. It may be defined as the conscious intent to cause death or grievous bodily harm to another person before a person commits the crime. In the case at hand, Pw-6 testified that, when the accused was recording his extra-judicial statement before him, he mentioned two reasons which pushed him to pull the trigger and shoot the deceased. One, is related to allegations of witchcraft and the other is related to alleged love affairs between the deceased and Pw-2 (the accused's wife), which as per Exh.P-2, the accused alleged to have witnessed twice. But as to what made him pull the trigger on the fateful date as per what the accused stated in Exh.P-2, was the fact that, on the material date when he pulled the trigger, he had found the deceased at Katongama's bar feeding each other with grilled meat, and so, he got enraged. Page 25 of 29 All such information constitutes facts extracted from his own extra-judicial statement, although in defence he completely denied any involvement in the killing of the deceased. Moreover, the accused did not even raise any defence of provocation when he fended for his case. Now, based on what Exh.P-2 reveals, could he be said to have been provoked? Well, in my humble view, I do not think so because it is on record, as Pw-1, Pw-2, and Pw-3 testified, that, Pw-2 was doing a business of Nyama- choma (grilled meat) at Katongama's premises, and many people were on that bar on the material date. If the deceased was eating "nyamachoma" at that place, that cannot be a basis for provocation. But as I said, the accused did not even raise any defence to those levels. For that matter, I see no need to be lured into a deep discussion of an issue which has never been a subject of contention between the parties herein. I only raise it out of curiosity based on What the accused person stated in Exh.P-2. But such information does also put to the light the motive behind the killing of the deceased Livence s/o Kalindo. In the in the case of Obadia Kijalo vs. Republic, Criminal Appeal No. 95/1007 CAT (unreported), the Court of Appeal of Tanzania was of the view that: "malice aforethought may be demonstrated by looking at the motive for the offence and the conduct of the suspect immediately before and after the act or omission..." Page 26 of 29 Moreover, the same may be deduced from the kind of weapon used, the nature of the attack itself, the part of the body where the attack was directed, or the kind of injuries inflicted on the body. See for that matter, the case of Enock Kipela vs. Republic, Criminal Appeal No. 150 of 1994 (unreported). In this case, as revealed in Exh.P-3, the deceased was shot at the neck right to the skull, which was fractured, and a hole was created there at leading to severe haemorrhage, shock and bleeding to the brain, hence, death. The nature of the weapon used and the sensitive part at which the accused aimed his gun would tell any person that the accused had all intentions to see that the deceased was dead. Under section 200 (a) and (b) of the Penal Code, the law provides that: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act .... will probably cause the death of or grievous harm to some person ... " Considering what I have pointed out herein above, it is my findings that the accused person had the necessary mensrea to murder the deceased Livence s/o Kalindo. The question I Page 27 of 29 raised is therefore answered in the affirmative. As stated earlier herein, I have considered the accused's defence. While the accused is not required to establish his innocence, and he has maintained that he is innocent, I find that his defence has not been able to raise any reasonable doubt in the mind of this court to warrant that I form a different opinion other than that of him being guilty of the offence charged. On the contrary, it is a solid finding of this court that, based on the available evidence of the accused's own conduct after the commission of the offence, the confession he made before Pw-6, and which was recorded in Exh.P-2, and his own confession to his own wife (Pw-2), which further corroborates Exh.P-2, the prosecution side has managed to prove its case against the accused person beyond reasonable doubt. Having so stated, I find the accused, NIKAS s/o NAZARIO @ MOVU guilt of the offence charged and I proceed to convict him of the unlawful murder of LIVENCE s/o KALINDO contrary to Section 196 of the Penal Code, R.E. 2019. SENTENCE / In a murder case like this one at hand, once the accused is proved to have killed another with malice aforethought and gets convicted thereby, Section 197 of the Penal Code, Cap. 16 R.E 2022 provides only one sentence. The sentence prescribed under the law is the death penalty for that person so convicted, and such a sentence is to be passed, without any excuse recognized by law. Since this court has found the accused NIKAS s/o NAZARIO @ MOVU guilty of the offence he is facing and has consequently convicted him, I hereby sentence Page 28 of 29 the accused to suffer death by hanging as provided under section 197 of the Penal Code, Cap. 16 [RE 2022]. Any party hereto who feels aggrieved by this judgement 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 12th DAY OF JULY Page 29 of 29