a1 ALLY HATALI MWALWANDA AND ANOTHER

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB- REGISTRY AT MBEYA CRIMINAL SESSIONS CASE NO. 83 OF 2022 REPUBLIC VERSUS 1. ALLY S/O HATALI MWALWANDA 2. BAHATI S/O NDUTA @MARIA ROZA JUDGMENT Date of Last Order: 14/06/2024 Date of Judgment: 10/07/2024 NDUNGURU, J. The accused person Ally s/o Hatali Mwalwanda and Bahati s/o Nduta ©Maria Rosa stand charged with the offence of murder c/s 196 and 197 of the Penal Code Cap 16 R.E. 2019 now 2022. It is stated that; on 28th day of November, 2020 at Matale - Isaka village within Rungwe District in Mbeya Region the accused persons jointly and together murdered one i Mkwaya s/o Mwaibanje. The accused person pleaded not guilty to the charge. Briefly, the facts of the case are as follows; That on the fateful date in the morning hours the deceased went to his farm and never returned home at the expected time. At the evening hours, the deceased's son namely Gideon Mkwaya Mwaibanje, went to his parents' house whereby he met his biological mother named Lauti Kasagile. When he asked her as to whereabouts of his father, his mother told him that the deceased had not yet returned home from the farm. That Gidion Mwaibanje decided to go to look for the deceased to the farm. At the farm he found the deceased body laying down with a deep cut wound on the head. He raised an alarm calling for help whereby the village chairperson named Agripa Manda and other villagers responded and arrived at the scene. The matter was reported to the Police where by the Police officers went to the crime scene the next date/morning together with the medical doctor named Justine Malekela who examined the deceased body. Following post mortem examination, it was revealed that the cause of 2 death was due to severe head injury. Upon investigation the accused persons named above were arrested upon being suspected to be the ones responsible for murdering the deceased. At the hearing, the Republic was represented by Mr. Davis Msanga State Attorney assisted by Mr. Augustino Magessa, Elisia Paul and Upendo Lyimo all State Attorneys, whereas the 1st and second accused enjoyed the service of Mr. Essau Sengo and Ms. Caroline Luhungu learned counsel respectively. In the course of discharging the duty of proving the case, prosecution lined up a total of nine (9) witnesses and tendered a total of five (5) documentary exhibits to wit, Post Mortem Report (Exh. Pl), Sketch map (Exh. P2), Cautioned statement of Ally Hatali (Exh. P3), Extra judicial statement of Ally Hatali (Exh. P4) and Cautioned statement of Bahati Ndula (Exh. P5). On defence the accused were the sole witnesses and tendered two documentary exhibits which were admitted and marked as 'DI and "D2". The brief summary of the prosecution and defence evidence runs as herein under; 3 Richard Simon Mwaseba, testified as PW1. His evidence is to the effect that he is a resident of Matale hamlet, Isaka village, Rungwe District. That on 28/11/2020, Saturday in the morning he went to the farm, while on the way when he crossed the river, met Ally Hatali wearing vest and short. He said Ally Hatali (1st accused) was in hurry. As he tried to greet him, he just raised the hand saying someone was waiting for him ahead. He said he knew Ally Hatali as they previously lived in the same village before he shifted to Horongo. That in the evening while at his home heard about the death of Mkwaya Mwaibaje. He went to the scene and met the dead body with a cut wound on head with an Axe. He said the scene where the dead body was on the same direction he met Ally Hatali. He said he got to know that it was Ally Hatali (1st Accused) who murdered the deceased. He said at the scene he told one Danken that he suspected Ally to have murdered the deceased as he saw him in the morning running from direction of the scene. He further said when he saw Ally, Ally was alone. That when the Police Officers arrived they interrogated the people who were at the scene and examined the body. That he did not see Ally Hatali at the funeral though the deceased was his grandfather. 4 PW2 was Samwatila Mswaswa. Her evidence was that she is living at Iloto hamlet at Isaka village Rungwe District, she is a peasant. She said, on 28/11/2020 in the morning she was going to the farm carrying his baggage. As he was unloading her baggage in her farm she heard a step sounds (kishindo) in her beans farm as she rose up saw two young persons running. She asked them why were they stepping on her beans while the path is there? One of them apologized saying "tusamehe". By then it was about 12:00 noon. That among the two persons she identified Ally Hatali (1st accused). She identified her because he is the son of his sister in-law. The witness said Ally was in a short and vest called "singilendi" or carwash. The witness said they were running from the bush to the road through her farm. The witness said the distance from her to where the persons passed was very close. That Ally did not greet her well though he is the son of sister - in law. The witness said while she was back at home at about 02:00 p.m got information on the death of Mkwaya Mwaibaje that he is killed. She said Mkwaya Mwaibaje is her father - in law. The witness said as she was living far from the home of the deceased, she went to the funeral the next date. By then the deceased body was already taken from the scene. 5 PW3 is Justine Raymond Malekela. His testimony is to the effect that he is a retired medical officer. In 2020 he was working at Rungwe District hospital. That on 29/11/2020 in the morning he was assigned to go to Isaka village to the scene to conduct post mortem examination. That he left the office with police officers going to the scene. The witness told the court that at the scene they met many villagers gathered. The body was found lying on the ground full of blood. The head was pieced through with a local made Axe from the front head to back. The Axe was still there unremoved. He is the one who removed it. In the course of his investigation he revealed that the cause of death was due to severe bleeding due to the sharp cut wound on head. He told the court that having completed investigation he completed the Post Mortem Report (Exh. "Pl"). PW4 was one Gidion Mkwaya. His testimony is to the effect that, he is living at Matale hamlet, Isaka village. The deceased is his biological father. That on 28/11/2020 during morning hours he went to greet his parents living nearby in the same compound. He met his mother who told him his father has gone to the farm. That he went again at noon at 12:00 but his father, the deceased had not yet returned from the farm. PW4 told 6 the court that he went again at 05:00 pm he did not find his father returned. As it was not normal he decided to trace him at the farm. He said at the farm he met his father dead. That the deceased was cut with an Axe which went through from the forehead to the back. He said when went to the farm, the deceased had an axe and "mundu" (nyengo). He said having met the situation that way he raised an alarm for help. His mother and young brothers and sisters and his children respondent the alarm. He said, the distance from home compound to the farm the deceased was is almost thirty paces. That following that alarm, other people gathered including Kitongoji Chairperson called Agripa Manda. PW4 went on saying the matter was reported to the village authority then to the Police station. On 29/11/2020, the Police Officers accompanied with Medical doctor went to the scene. The body was investigated, then handed to the family for burial process. PW4 told the court that in his investigation he came to realize that it was Ally Hatali who killed the deceased, as he was told by Richard Simon and Samwatila to had seen Ally Hatali coming from the direction of the scene on the very date. 7 P\N4 told the court that on 06/01/2022 he with Dunken arrested Ally Hatali at Horongo village at Igale ward in Mbeya Rural District. He said having arrested him when interrogated Ally Hatali said "Mjomba nimekosa nakiH kuwa niHmuua Babu nikiwa na Bahati'. The witness told the court Ally is the son of his sister to his elder father one Eljeseli. He took Ally to Tukuyu Police station. It is Ally who instructed him that Bahati (2nd accused) is found at Mbalizi at Old Tunduma stand. That on 08/02/2022 while with Danken they arrested Bahati Nduta @ Maria Rosa. When asked him, Bahati confessed saying he in association with Ally Hatali killed the deceased that Ally Hatali promised to pay him 300,000/= that was already paid 100,000/= and 200,000/= remained. That they took him to Tukuyu police station. PW4 told the court that Ally (1st accused) told him that he was sent by his grandfather one Eljeseli to kill the deceased due to conflict they had as the deceased testified against Eljeseli on the land matter between him and the village council. Agripa Manda, testified as PW5. His testimony was that he is living at Matale hamlet at Isaka village. He is a hamlet (Kitongoji) chairperson. He said on 28/11/2020 at the evening, he was phoned by Gideon (PW4) informing him that his father was murdered at his farm. PW5 told the court 8 that he went to the farm/scene where he met the deceased lying on the ground with a cut wound of an Axe. The Axe went through from the forehead to the back. By then the Axe was not yet removed from the deceased head. He said having noted that he informed Kitongoji resident and reported the matter to the Police Station. That the Police arrived at the scene the next morning on 29/11/2020. Upon investigation of the body by the medical doctor and police, the police allowed the body be buried. The police went on with investigation. PW6 was H. 840 D/COPLO Ibrahim. The essence of his testimony is that he is a Police officer, stationed at Tukuyu Police station. He told the court that on 11/01/2022 at 10.30 am while at the Police station he was assigned to send Ally Hatali to the Justice of Peace to record extra judicial statement. He said he sent Ally to Tukuyu Urban Primary Court. That having handed him to the Magistrate he left the court compound until when he was called to take the accused back to the police station. That he took the accused and the statement back to Police station. That at the Police station he returned the accused to the lock up and handed the 9 statement to OC-CID who assigned him to send the accused to Justice of Peace. PW7 was one E. 8239 Detective Sargent Heneriko. His testimony is that he is a Police officer, he is working at investigation department, he is stationed at Tukuyu Police station Rungwe District. He said that on 29/11/2020 at about he with other Police officers went to Matale hamlet - Isaka village to attend the murder event which happened on 28/11/2020 as the dead body was revealed at about 06.pm. That they were accompanied with the medical doctor. That they arrived at the scene at about 12.00 noon. That at the scene they met many people gathered including hamlet leader one Agripa Manda. The body was in the deceased farm somehow far from his home. That the body had a cut wound with locally made Axe. The Axe cut the afore head at the nose penetrated through to the back head. The axe was still intact on the head. That the son of the deceased one Gidion identified the Axe to belong to the deceased. That the medical doctor examined the body. He further told the court that he and fellow Police officers interrogated different witnesses. He also drew the Sketch map (Exh. P2). That as an investigator of the case he came to know the suspect was Ally Hatali. io PW7 said he started looking for Ally Hatali. He was assisted by the local leaders of Matale. He said Ally Hatali was arrested on 06/02/2022 at about 10.am at Horongo Village Mbeya rural area. That he was arrested by Gideon and Danken. That upon arrest he was sent to Tukuyu Police station. That those who arrested him said having arrested him they interrogated him who admitted to have killed Mkwaya Mwaibanje. That he then interrogated him following his admission he then recorded cautioned statement. In his statement Ally named Bahati Nduta as his associate in murdering the deceased, saying he was sent by Eljezel Mwaibanje to kill the deceased following his grudge with the deceased. PW7 tendered the statement as exhibit (Exh. "P3") PW7 went on telling the court that on 08/02/2022 he with another Police officer went Mbalizi to take Bahati who was arrested there. That he was arrested by Gideon and Danken assisted by Police. That having interrogated they took him to Tukuyu. He said he never knew Bahati Nduta before he was arrested. Ally Adam Mgomba testified as PW8. His testimony is to the effect that he is Primary Court Magistrate and a Justice of Peace. That in 2022 he was stationed at Tukuyu Urban Primary Court. He said that on 11/01/2022 ii while in the office he received Ally Hatali who was sent to him to record extra judicial statement. That having complied with all requirements such as introducing himself being a Justice of peace and whether the accused is willing to record his statement. Further that having been satisfied that the accused is willing to offer his confession, he then started recording the statement. PW8 told the court that the accused stated the way he and his fellow planned and ultimately killed the deceased by cutting him with an axe, and that he was sent by his grandfather to kill the deceased. PW5 tendered the extra judicial statement as exhibit ('P4") H. 3650 Detective Coplo Mashiku testified as PW 9. His testimony was to the effect that he is a Police officer, stationed at Tukuyu Police station. That on 08/02/2022 he with PW7 were sent to Mbalizi to take Bahati Nduta who was under arrest. That at Mbalizi Police station they met the accused. When he asked him on the offence he committed at Tukuyu, the accused admitted to have committed murder crime with Ally Hatali. He then recorded his cautioned statement. PW9 tendered the said cautioned statement as exhibit (P5). DW1 one Ally Hatali in his defence made a total denial to have been involved in killing the deceased. He denied all the prosecution testimony. 12 He further denied to have interrogated at the Police nor to have recorded cautioned statement and extra judicial statement. He tendered the statements of PW1 and Pwl purported to have been recorded at the Police station (Exh. DI and D2). He contradicted those statements from what the witnesses testified in court under oath. He said, he was arrested at Horongo village where he was living. That he was arrested on 06/01/2022 at about 10.am. he was arrested by Gideon, Danken and someone else whom he did not know. He went on saying that on the alleged incident day that is on 28/11/2020 he was at Horongo Village - Mbeya Rural area doing his business. That he has never gone to Isaka Village since 2014 when he with his parent shifted to Horongo. DW1 told the court that having been arrested at Horongo, he was sent to Tukuyu Police station. That on the way he was beaten severely by Gideon and Danken. That at Tukuyu Police station he was received by Heneriko who also accompanied with Gideon and Danken tied him and started beating him. That he was beaten forcing him to admit to have killed, and he was force to sign the papers. It was on 11/02/2022 when he was beaten. He further said he did not know Bahati Nduta before. That he was not sent by Eljezel to kill the deceased. That while at Police station, 13 Ibrahim went with Ally Mgomba (PW5) they had papers. They forced him to sign those papers. That during all the time ever since he left Matale has been living at Horongo village till his arrest. DW2 one Bahati Nduta, testified to the effect that he was arrested on 08/02/2022 at about 10.00 am. He was arrested Mbalizi at his working place when he was testing the motor cycle having repaired it. The arrest was due to the fact that he was riding motor cycle without helmet and while on sandal (not shoes). That he was sent to Utengule Police station. That he was arrested by Police officer called Hassan not Gideon. That he came to know Gideon here in court. That he never records the statement. That he was taken from Mbalizi to Tukuyu Police station by Heneriko and Mashiku - the Police officers. He came to know the 1st accused having been joined to the case. DWI went further telling the court that no prosecution witness had testified to have identified him. All the witness testified to have seen him here in court. Having closed the evidence of both sides what remains is for the court to decide on whether the prosecution has proved the guilty of the accused persons. In other words, the main issue is whether the prosecution has proved the charge against the accused person to the 14 statutory standard required in Criminal cases, that of beyond reasonable doubt. The fact that one Mkwaya Mwaibanje who is a subject in this case, is actually dead, is not at controversy. The testimony of PW1, is to the effect that having heard the cry/alarm went to the scene where he found Mkwaya Mwaibanje is dead. That the body had a cut wound on head by an Axe. This testimony is corroborated by that of PW4 one Gideon Mkwaya, the son of the deceased, who told the court that having noted his father had not yet returned back he traced him to the farm and found him lying on the ground while dead. That the body had a cut wound by an Axe. It is PW4 who raised an alarm for help. Further to that, PW5, the hamlet chairperson testified to had attended the alarm and when went to the scene found the dead body with a cut wound. Likewise, the testimony of PW3, the medical Officer who conducted examination of the body and established the cause of death. The other piece of evidence to that is that of PW7. He is among the Police officers who visited the scene on 29/11/2020. His evidence is that at the scene they met a dead body lying on the ground with an Axe cut 15 wound on head. From all the above witnesses' oral account, it is undisputed that Mkwaya Mwaibanje subject of this case is actually dead. As to whether his death was natural or not, the evidence available is that the cause of death is due to severe head injury being injured with sharp object. This is per Exhibit Pl, Post Mortem Examination Report, and the testimony of PW4, PW5, PW1, PW3 and PW7. All these witnesses' account is that they found the deceased lying down with an Axe cut wound which had penetrated from the forehead to the back. It is from that account, I am inclined to told that, the accused death was not natural. In other words, the deceased encountered a brutal violent death. The vital question is whether, it is the accused persons, Ally Hatali and Bahati Nduta are responsible with the death of Mkwaya Mwaibanje. From the evidence available on record, there is no body who witnessed the accused persons committing the offence. There is no doubt therefore, that the prosecution case is relied heavily on circumstantial evidence. Therefore in resolving this issue, I deem it pertinent to initially restate the basic principles governing reliability of circumstantial evidence 16 as discussed in the case of Jimmy Runangaza Vs. Republic,Criminal Appeal No. 159B of 2017 [2018] TZCA 188: [27 August 2018:Tanzilii], where the court remarked: "Z/7 order for the circumstance evidence to sustain a conviction, it must point irresistibly to the accused guilty (See, Simon Musoke v. Republic [1958] EA 715). Sarkar on Evidence l$h Ed. 2003 Report Vol. 1 page 63 also emphasized that on cases which rely on circumstantial evidence, such evidence must satisfy the following three tests which are: (1) The circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, and (3) The circumstance taken cumulatively, should from a chain so, complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else./z 17 In dealing with circumstantial evidence, the Supreme Court of India in Balwinder Singht v. State of Punjab, 1996 AIR 607 had this to say; "77 ? a case based on circumstantial evidence the court has to be on its guard to avoid the danger of allowing suspicion to take place of its legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be to take place of the proof " See also Ally Bakari and Pili Bakari v. Republic (1992) TLR 10. Where the court had this say; "Where the evidence against the accused is wholly circumstantial, the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be interred." Therefore, in determining the issue as to whether it is the accused persons before me are the ones responsible with the death of Mkwaya Mwaibanja, I will be guided by above referred principles to establish whether or not the available circumstantial evidence in the case at hand irresistibly points the guilt of the accused persons. 18 In the instant case, the evidence on record which tend to implicate the first accused, Ally Hatali heavily among others, is first, the oral account by PW1 and PW2 who narrated to have met the accused person on the fateful date saying he was running from the direction of the scene. PW1 said he met the 1st accused person on the way, he was on hurry running and when greeted him, he could not respond but just raised hand saying somebody is waiting for him ahead. The witness told the court that the 1st accused was alone. He said, as he saw the 1st accused on that morning running from the direction of scene and when he (PW1) heard of the killings of the deceased at noon connected dots that it must be Ally Hatali as he saw him in hurry running from the direction of the scene. PW2 told the court that on the material date she went to the farm in the morning. That whilst at his farm, in her beans farm she saw two persons running while stepping on her beans. That she identified Ally as she knew him before as he is the son of his sister in law. When she met Ally (1st accused) with his fellow was at about 12.00 noon. That she identified the 1st accused as they passed very close from where she stood but again she even greeted him. PW2 said that the Ally and his fellow were running from the bush to the road through her farm. That at about 02 pm 19 while she was back home got information on the death of the deceased. Whereas PW4 told the court that he came to know that it is the 1st accused who killed the deceased as he told by PW1 and PW2 that on the event date they saw Ally (1st accused) running from the direction of the scene. As to his testimony, when he was cross examined, PW1 told the court that he was interrogated by Police at the scene on 29/11/2020 with other people who were at the scene. When interrogated at the scene, the interrogating officer was not recording but when interrogated at the police, the interrogating officer was recording. That he has forgotten the date he went to the Police station for further interrogation. He further said on 28/11/2020 he met Ally alone running. That he did not tell anybody to have met Ally (1st accused) running as he was waiting to be called by Police. When re-examined he (PW1) came out with another story that he told Danken that he met Ally (1st accused) running from the scene. Regarding the testimony of PW2, when cross examined, she told the court that she identified only Ally because, she knew him. She did not identify the 2nd accused. That she met 1st accused at about 12.00 noon. The witness went further to state that she went to the Police station at Tukuyu to record her statement, but forgotten the date. 20 Further in her testimony in chief PW2 did not tell the court to have told PW4 that she saw the accused persons on the event date, whereas PW4 told the court that in his investigation he came to know Ally (1st accused) is involved in murdering the deceased as he was seen by PW1 and PW2 on the event date running from the scene. To the contrary PW1 when cross examined told the court that he did not tell anybody to have been met 1st accused running from the scene as he waited to be called to the Police, but in re-examination he said he told Danken. As to the testimony of PW4, he told the court that on 29/11/2020 when the Police arrived at the scene he offered his statement, he told the Police on the death of his father, the deceased. He went further saying he named the suspects Ally and Bahati. This is contrary to the testimony of PW1 and PW2 in the sense that PW1 said he did not tell anybody to have met Ally as he was waiting to be called by the Police, but again when re­ examined he said to have told Danken not PW4, unfortunately the said Danken was not among the paraded prosecution witnesses. Not only that how could he mention Bahati? This is due to the fact that PW1 told the court that he met only Ally running whereas PW2 said to had identified only Ally among the two she met where does the name Bahati came in to 21 be known to PW4 by then, before he arrested Ally (1st accused) whom he asserted to had named Bahati as his co-culprit. Further to that PW4 told the court that he with his fellow one Danken are the ones who attested the 2nd accused one Bahati Nduta at Mbalizi and took him to Tukuyu Police, whereas the testimony of PW7 is that the 2nd accused was arrested by police officer one Hassan of Mbalizi Further, he and PW9 were the ones who went to take him from Mbalizi police station where he was kept upon arrest to Tukuyu police station. The testimony of PW7 and PW9 on this aspect is corroborated by that of DW2 who said to had been arrested by Hassan and taken to Tukuyu by PW7 and PW9. In those incidences, I find that the testimony of PW4 is not worth to be credible. His testimony must be delt with circumspection. Leave alone what I have alluded above, take it to be the fact, that PW1 saw the 1st accused running from the bush on the morning of the fateful date at about 09.am, saying from the direction of the scene/farm of the deceased; and it be true that PW2 met 1st accused and his fellow whom PW2 could not identify at about 12.00 noon running from the bush the direction of the scene. Should it be taken as conclusive proof that two accused persons who murdered the deceased. 22 The position of the law is clear that even if the evidence against the accused is wholly circumstantial, the standard of proof remains uncompromised. See Ally Bakari case (supra). The court must critically consider and weigh all the circumstances established by evidence in their totality and not to dissect and consider it piecemeal or in cubicles of evidence or circumstances. The evidence of PW1 is that on 28/11/2020 met the 1st accused at about 09 am whereas PW2 told the court that she met the 1st accused with his fellow running from the bush to the road at about 12 noon. The two witnesses account is that the accused were running from the direction of the scene. It has not been established by the prosecution the distance from the point PW1 met the 1st accused to the farm of PW2 where she was when met the 1st accused and his fellow. Further it is not established the location of the two places whether adjacent to each other or otherwise vis a vis the scene of crime. Again there is no evidence from the prosecution to limit the possibility of any other person to have gone to the scene and kill the deceased. This is because PW1 met the 1st accused at 09 am while PW2 met the accused at 12.00 noon. It is not known as to whether PW1 and PW2 met the accused before or after they have committed the offence 23 or not if at all they are the ones who killed the deceased. But again the time of killing has not been established. The evidence of PW4 is to the effect that he met the body of the deceased at the scene in the evening having noted that ever since he left to the farm in the morning had not returned home. The second piece of evidence which tend to implicate the 1st accused is the cautioned statement (Exh. P2) and extra judicial statement (Exh. P3). The two confession statement tend to show that the accused person committed the alleged murder in association with the 2nd accused. The accused have disowned/ repudiated the two statements. The issue here is whether the court may base conviction on the repudiated statement/evidence. There is a plethora of authorities to the effect that, a repudiated confession may be acted upon to convict an accused person, but by a rule of practice, it requires to be corroborated. See for instance, the cases of Paschal Petro Sambula @ Kishuu and 2 Others V. Republic, Criminal Appeal No. 112 of 2005 and Mabala Masai Mongwe V. Republic, Criminal Appeal No. 161 of 2010 (both CAT decisions.) 24 The above position being a rule of practice, a court may however, act on uncorroborated retracted or repudiated statement to convict an accused person if after having warned itself, is satisfied that the confession was nothing but the truth. The requirement to observe that principle was underscored in inter alia, the case of Hemed Abdallah V. Republic [1995] TLR 172. In that case the court states as follows: "It is trite law that generally it is dangerous to act upon repudiated or retracted confession unless it is corroborated in material particular or unless the court after full consideration of the circumstances is satisfied that confession cannot be true". Now, to answer the issue posed above, it is instructive to examine the crucial circumstances in which the statements were recorded. The evidence available is that the alleged offence was committed on 28/11/2020. PW7 who recorded cautioned statement (Exh. P2) is the investigator of the case who visited the scene of crime on 29/11/2020 and interrogated the people at the scene. Further the said statement (Exh. P2) was recorded in 2022 two years later, and during all the time PW7 was on investigation. That means in the course of his investigation, the witness had gathered/collected a lot of information pertaining to the case. In the 25 circumstances, there is danger of him being influenced with the information/ knowledge he had gathered in the course of investigation, taking into account that the accused has disowned the statement. For interest of justice and in meeting the demand of fair trial it was more appropriate if the said statement could have been recorded by another Police officer. Further PW7 has not told the court why it took a long time to arrest the accused while PW4 mentioned him to PW7 at the scene; whereas as DW1 told the court during all the time he was living at Horongo village and it is PW4 and Danken who went to arrest him. As to whether the statements were corroborated or not. The evidence which implicates the accused persons is that of PW1 and PW2. But the witnesses never testified to have witnessed the accused persons killing the deceased. Thus their testimony cannot be considered to have corroborated the evidence of confessions (Exh. P2 and P3). Having warned myself on the danger of basing conviction on uncorroborated repudiated and retracted statement and full consideration of the circumstances. I am satisfied that the confession cannot be true. 26 Thus cannot be the bases of conviction in the absence of other independent evidence. As regards the 2nd accused; he is implicated by two pieces of evidence. The first is the confession statements of the 1st accused (Exh. P2 and P3). In the above referred statements, the 1st accused is alleged to have mentioned the 2nd accused. The law on confession of the co-accused is very clear. Section 33(3) of the Evidence Act 1967 (Cap 6 R.E. 2019) provides crystal clear that the court cannot convict the accused person relying on the statement of the co accused unless it is corroborated. The fact that I have poured down the credibility of Exhibits "P2" and "P3" what remains is the statement of the 2nd accused himself. In his testimony DW2 has repudiated the statement and the same has not been corroborated by an independent evidence thus I am declined to act on it. The evidence available on record is that DW1 (2nd accused) was not identified by any prosecution witness neither on the event nor in court. In the circumstances, I satisfied to hold that the case against the accused persons being among the most serious case with an alarming sentence, the standard of proof must be beyond reasonable doubt as required by law. In cases of this nature the court has to be on its guard to 27 avoid the danger of allowing suspicion to take the place of legal proof and has to be the watchful to avoid the danger of being swayed by emotional considerations, however strong they may be to take the place of proof. See Balwinder Singht V. State of Punjab, 1996 AIR 607 Having said and done, I am of the firm finding that the case against the accuses persons have not met the standard of proof required by law. On other words the prosecution has failed to prove the case beyond reasonable doubt. I therefore acquit the accused persons Ally Hatali and Bahati Nduta for the of offence of Murder c/s 196 and 197 of the Penal Code Cap 16 R.E 2022. The accused be released from the prison forthwith, unless lawfully held for another cause. It is so ordered. D.B. NDUNGURU JUDGE 10/07/2024 28