a4 MUSSA BETHUEL

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA CRIMINAL JURISDICTION CRIMINAL SESSION CASE NO. 85 OF 2022 REPUBLIC VERSUS 1. MUSSA S/O BERNARD BETHUEL 2. GODLOVE JOSEPH NANDOLA 3. PAULO IBRAHIM MAHABA JUDGMENT Date of Last Order: 21/05/2024 Date of Judgment: 09/07/2024 NDUNGURU, J; In this case, the accused persons are Mussa s/o Bernard Bethuel, Godlove Joseph and Paulo s/o Ibrahim Mahaba. They are jointly and together charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E 2019 (Now R.E 2022). It is stated in the particulars of offence that; on the 2nd Day of March, 2021 at New Forest area within the District and Region of Mbeya the accused i persons murdered one Christina d/o Mwakilembe. The accused persons pleaded not guilty to the charge. Facts of the case is that, one Samson Ndawi who is a deceased worked as the security guard at the house of the Late Judge Mmila, uncle to the first accused located at New Forest Mbeya. The deceased in this case left her home on 2/3/2021 and went to the work place of Samson Ndawi, her husband, there at the gate met the first accused and other persons carrying a sulphate bag. When asked, the first accused replied it was garbage. The deceased asked the whereabouts of her husband and the first accused replied, Samson had gone to his boss at Dar es salaam, the wife of the late judge Mmila. On 4/3/2021 Mussa went to late Judge Mmila's neighbour, one Amos Ndunguru and told him the wife of late Judge Mmila had sent him a parcel and gave him a phone to talk to her. Musa told Amos Ndunguru that he was sent to collect home furniture as there was no body to attend. On the same date Ezekia Amos Kibonde a street chairman was informed the missing of Samson Ndawi and the deceased. In the evening hours, Musa went to collect furniture with a truck and furniture being loaded some commotion occurred between Musa and Judge 2 Mmila's relatives, Thobias Mmila and Upendo Mmila. This led to the arrest of Musa who was latter on charged with stealing. On the other hand, Samson Ndawi and his wife, the deceased were no were to be seen, relatives were in intensive search, on 7/3/2021 team of searcher which included Thobia Mmila, Amos Ndunguru and Andindilile Mwangomola sniffed bad pungent smell around the house of judge Mmila, they called street chairman who advised them to call the police. In response were Inspector Abdallah Mwabiji and Abas Omary, they went to the late Judge Mmila's house in the room they found dead body of a female which was identified to be of Christina Mwakilembe. Having found the dead body, the first accused who was still in the police custody was interrogated on the death of Christina, it is when he admitted to kill the deceased in this case and Samson Ndawi in corroboration with his friends. The reason they are charged with murder in this case. When the charge was read to them, they pleaded not guilty and therefore, the case scheduled for this criminal session. At the hearing, for the Republic, were Ms. Mwajabu Tengeneza senior State Attorney teamed up with Mr. Stephen Lusubamaila, Ms. Upendo Lyimo and Mr. Augustino Magessa all learned State Attorneys 3 while the defence camp was represented by Mr. Alfred Chapa, Ms. Leah Kasanga and Mr. Ezekia Ndambasya all learned advocates who represented the 1st, 2nd, and 3rd accused persons respectively. The prosecution paraded a total of nine witnesses and one documentary exhibit, caution statement of the 1st accused (exhibit Pl). In defence the 1st accused gave his evidence and called one witness in support, he had also one documentary evidence, judgment of the Resident Magistrate Court (exhibit DI). The 2nd accused fended himself, so the 3rd accused who in addition produced certificate of birth (exhibit D2). The prosecution and defence evidence, in summary, goes as follows; PW1, Amos Peter Ndunguru testified that in 2021 was a neighbour to the house of the late Judge Mmila. That on 04/03/2021 in the morning hours, the 1st accused and another person arrived at his home where the other person remained outside the gate while the 1st accused entered in the house and informed him that the wife of the late Judge Mmila had sent him a parcel which PW1 was supposed to keep safely and a person would have sent to collect it. That the 1st accused also gave a phone to PW1 to hear a call from a woman voice who introduced herself as a wife of the late Judge Mmila. That the woman 4 told PW1 that the watchman has done unpleasant thing and had left the work without information therefore that PW1 receive the said parcel until the young sister could have gone there to collect the same. Also, that the 1st accused told him that he will take some few furniture so that they could not be damaged as there was no body to keep them safely. PW1 went on testifying that on the same day during evening hours about 04:30 pm, he heard some noises which were about beating a thief. After attending the noises, he found the 1st accused having a big truck make Fuso carrying home furniture from the house of the late Judge Mmila. That at that time the 1st accused was quarrelling with the relatives of the late Judge Mmila. Then PW1 informed those persons about the phone call he had received in the morning which he believed to be of the wife of the late Judge Mmila about the 1st accused to collect some furniture. That having seen that the 1st accused was about to be harmed, he called the Police who promptly went to the scene and took the 1st accused at Police Station. That he later on came to get the phone number of the wife of the late Judge Mmila, up on asked her of the incident, the wife denied to have instructed anybody to take the furniture. It is from there PW1 knew that by that day, he did not talk to the wife of the late Judge Mmila. 5 In his further testimony PW1 stated that on 7/3/2021, him, the chairperson of lyela street one Mwangombola, and the family of the late Judge Mmila went to the house for seeing the stollen properties when entered in the house they were welcomed by flies and a pungent smell of a rotten thing. That having break the door of the room adjacent to the sitting room they found a female dead body which had started to decay. They reported the incident to the police who came and took the body for investigation. Later on, it came to be found that the parcel left to PW1 by the 1st accused contained a mathematical set and a bottle. Having cross-examined, PW1 said that he had testified against the 1st accuse in the case of theft of which he did not know the result. That 1st accused did not go to the house of late Judge Mmila after his arrest and he could not know what had happened at the house also that after the arrest of the 1st accused no one remained behind at the house. And that on 7/3/2021 Mussa was not among the people who gathered at the house where the deceased's body was found. And that he did not know what one Mwangombla talked with the relatives of the late Judge Mmila before he phoned him. That he did not know why they gathered to see the stolen properties in the absence of the 1st accused. And he could not know how long the body had taken while died. And he did not 6 remember the one who opened the room where the deceased body was found. That in his evidence he did not mention another person who was arrested apart from the 1st accused. PW2, Ezekia Amos Kibonde gave evidence that being a street chairman of lyela Street, on 4/3/2021 while at a certain funeral ceremony he heard a ten cell leader informing people of that cell that at their locality there are two persons whose their whereabouts is unknown. Those persons were the deceased in this case and her husband who was a watchman to the house of the late Judge Mmila. Then the said ten cell leader informed PW2 about the presence of a truck which was loading furniture at the house where Samson was watching. Then PW2 went to the scene where he found people and one person under arrest. He also witnessed the coming of the Police Officers who took the person under the arrest and the truck to the Police Station. Then, that people at his place went on asking the whereabouts of Samson and his wife. When he went to the police to ask them. He also went to the house of the late Judge Mmila after calling the chairperson of the street and together they gathered at the house and found the rotten dead body of the deceased which was covered by some mattress. That they reported the matter to the police. The Police arrived and took 7 the body for further investigation. PW2 identified the 1st accused as a person he found under arrest on the date he went to see the fracas of alleged theft. When cross examined by Mr. Chapa for the 1st accused person, he replied that he went to the scene as he led the cell where the persons disappeared. That one Thobias went to the house of the late Judge Mmila in accompany of local government leaders since there was already allegation of theft. He replied the question about if Musa could have known what was taking place when he was at police custody and replied negatively. When cross examined by Ms. Leah for the 2nd accused person, he replied that he could not remember the exact number of the persons he met under arrest. That he remembers about Mussa (1st accused) only. Next to testify was PF. 19282 Inspector Abdallah Mwabiji (PW3), testified that on 4/3/2023 he received information from D/sgt Danied Chikolonga that at the house of the late Judge Mmila a thieve had been arrested while stealing properties, he sent DC. Allan to go and correct the suspect, in short while the suspect and two others were taken to the Police Station, one was the 1st accused, a driver of a vehicle and his 8 turnboy, there was also Thobias Mmila and a local authority leader. He was told by Thobias that the 1st accused had stolen properties. On 7/3/2021 he received an information from citizen that a dead body was found in the house of Judge Mmila, PW3 went there accompanied by other police and a doctor from Mbeya Referral Hospital. In the house there was bad smell which came from the store (a room adjacent to the sitting room) and the body was of a dead female being tied hands. The body had started to decay and some citizen identified it to be of Christina (deceased), wife of Samson who was a watchman at late Mmila's house. The body was taken to hospital. That up on continuing interrogating the first accused in connection to the stealing, death of Christina and disappearance of the watchman the first accused admitted to have been involved in killing Christina. PW3 went on to state that Mussa narrated to him that he lied to Christina that her husband had gone to his employer in Dar es Salaam, one Frola Bethuel Mmila, that there was a phone at Mmila's house so that she can talk with her husband. That when Christina entered the house, they strangled her, cut her with sharp instrument in the neck and carried the body to the store. 9 In his further evidence, PW3 stated that the other accused persons, Godlove Joseph and Paul Mahaba were mentioned by the first accused. That the investigation went on to search the watchman and on 10/3/2021, Mussa sent them at a forest to show where they had dumped the body of Samson after killing him. Also that, through investigation it transpired that Christina was killed because of her zeal in tracing her husband and the accused wanted to steal Gold which the first accused knew the late Judge Mmila had in the house. When PW3 was put under cross examination by Mr. Chapa he stated that he did not record statement of the first accused but what was told by him is what is found in the statement. That Mussa went to show them where he dumped the dead body of samson. That Mussa admitted to him on 7/3/2021 at evening hours On further cross examination by Ms. Leah Kasanga, PW3 said Godlove was mentioned by Mussa, that he tried to escape while being traced by the police. When cross examined by Ezekia Ndambasye the 3rd accused was mentioned by Mussa and is the one who led them to arrest him. That Mussa told him that they strangled and chopped on the neck with sharp object the deceased in associate with others. Further that the body of Christina was identified by neighbours. 10 Asha Njovu (PW4) was next to testify, she introduced to be the Resident Magistrate and therefore justice of peace. That on 11/3/2021 in the morning received a police officer with a suspect (the first accused) for the purpose that she records statement of the suspect who was accused of murder. The police left and she informed the suspect all rights indicated in the form and was told that he was arrested on 4/3/2021 at the house of Judge Mmila. That after complying with all formalities, she recorded statement of the accused and each signed after the statement was read to the suspect. PW4 went on to state that the suspect told her that they wanted to steal gold in the room of Judge Mmila and admitted to have killed the watchman and his wife. When crossed examined by Mr. Chapa, PW4 said the accused told her that they killed two persons, their names had forgotten. Frola Mmila (PW5) led evidence that on 6/3/2021 she received a phone call from a new number, that a person introduced to be her neighbour at New Forest. She was told that Mussa went there to take furniture and she replied that she did not send any person to collect the furniture. PW5 denied to have communicated with Mussa. Then, she phoned police at Mbeya who confirmed that they had arrested Mussa who wanted to take furniture. That at Mbeya they left a watchman by ii name of Samson. Finally, PW5 said that the watchman was not reachable through his phone when they spoke to the neighbours. Thobias Mpauani Mmila (PW6) gave testimony that the late Judge Mmila was his brother. He lived in Dar es Salaam but had also a house in Mbeya, the house had a watchman by name of Samson. On 4/3/2021, he received a phone call from neighbours about Samson and his wife were nowhere to be found and that the lorry was found loading furniture at the house of Judge Mmila. PW6 went to see and found Mussa loading furniture in the lorry, when asked Mussa replied to have been sent by the wife of Judge Mmila. Then police were called Mussa, driver of the lory and turnboy were arrested. PW6 added that he saw all doors of the house broken. That, they continued looking for the watchman, on 7/3/2021 at the house of late Judge Mmila they sensed a strong bad smell, followed the smell they found the door of the store locked. Having break it they found a dead body of a female. The matter was reported to police, and relatives of Samson identified the body to be of Samson's wife. On cross examination PW6 stated that Mussa was taking property on 4/3/2021, that Mussa and Frola knew each other, on 6/3/2021 they continued to look for Samson. 12 It followed Andingilile Hebron Mwangombola (PW7), testified that Samson was living with his wife Christina, in 2021 was a watchman at new forest at the house of Judge. In March 2021, they disappeared, Christina disappeared between 2nd and 3rd March while Samson had disappeared earlier to those dates. On 4/3/2021 theft occurred where Samson was watching and went at the crime scene there was fracas between relatives of the judge. On 7/3/2021 PW7 was called by police and informed that dead body had been discovered, he went there and found the body was of a female. During cross examination by Mr. Chapa PW7 said he reported the disappearance of his brother and wife at police on 6/3/2021 it was between 2 or 3 March 2021. Abas Omary (PW8) in his evidence stated that in 2021, was a Police Officer at Mbeya Central Police Station. On 7/3/2021, he was instructed by his superior one Abdallah to go to forest mpya at the house of Judge Mmila. Reaching there, he found a lot of people and bad pungent smell coming from the house. PW8 went on to tell the court that when they opened the room, they found a dead body of a female, decomposed. The body was taken to Mbeya Referral Hospital. Search for watchman continued, on 10/3/2021 Abdallah called him and told him 13 about going at Maliasili forest where the first accused Mussa had dumped the watchman. The police entered a ditch and found a dead body of a male, it was taken to Mbeya Referral Hospital. Further evidence from PW8 was that at 09:30 am he was assigned by Abdallah to record cautioned statement of Mussa, that he came to know involvement of Mussa in killing on 10/3/2021. That before recording the statement he informed the accused all of his rights. That in the statement Mussa admitted to kill wife of the watchman in corroboration with his friends. After finishing writing the statement they both duly signed their respective parts. The statement of the first accused was admitted as exhibit Pl after trial within trial. In cross examination by Mr. Chapa, PW8 said that he recorded statement as per section 58 (4) of the Criminal Procedure Act, Cap. 20, that Mussa narrated the story himself, that he was warned about the offence of murder, that Mussa admitted when he was interrogated by Abdallah. On further cross examination by Ms. Kasanga PW8 said, Paul and God were named by Mussa. When Mr. Ndambasye cross examined PW8 said that he recorded statement of Mussa on death of a woman. William Muller (PW9) a medical doctor, he recalled that on 8/3/2021 was required to conduct post mortem examination to the dead 14 body in the mortuary. The body was identified being of Christina. PW9 said in his examination the body was of an old female, the body was decomposed, hence failed to identify the cause of death. After examination found that the death had occurred about four days back. On the defence side, the first accused, Mussa Benard Mmila testified as (DW1) started by narrating the relationship he has with the late Judge Mmila and his family generally. He said the he had good relationship with the wife of the late Judge Mmila than other family member specifically in Mbeya. Then, DW1 stated that on 4/3/2021 was phone called by a strange number asked if he was shifting. He denied to have shifting and he went to the house of Bethuel Mmila at forest, there he found Thobias Mmila, his children and Upendo Mmila, he asked Thobias about loading the furniture but was told to shut up. That he wanted to inform Frola by phone but his phone was grabbed by Upendo. DW1 also told the court that he was then apprehended and arrested, due to the fracas between him and his relatives. That neighbour gathered, and Police arrived then took him to the police station. It was further evidence of DW1 that he was charged in court for housing breaking and stealing but he was acquitted of the offences. He tendered the judgment of the Resident Magistrate Court and it was 15 admitted as exhibit DI. It was further testified by DW1 that on 7/3/2021, Abdallah, Seif and Abas Abdallah entered the lock up and told him that in the house where he stole furniture a dead body of female, Christina Mwasilimbe was found and that he was the one who killed her but he denied. At the end he prayed evidence of prosecution witnesses to be disregarded When cross examined by Ms, Kasanga, DW1 said he came to know the other two accused person in court. Ipyana Thobia Mmila (DW2) a young brother of the first accused testified for DW1 that on 4/3/2021 he was with DW1 at lyela who received a phone call but was told by Mussa to go to uncle Mmila house at forest mpya. Arriving there in presence were Thobias, children of Thobias and Upendo who were loading furniture in the vehicle. When Mussa asked them was told to shut up, he wanted to make a call but Thobias grabbed the phone, then police were called and arrested Mussa. The second accused Godlove Joseph Wandola gave his testimony as (DW3), his evidence was that on 2nd and 4th March 2021, was doing some farming activities, then prepared himself to go to Arusha on 4/3/2021 where he is also farming. While in Arusha was communicating with his relatives in Mbeya and on 13/3/2021 he was arrested by the 16 Police who took him at Arush Police Station. Thereat he was asked on the murder of a woman but denied to have ever been involved. He tendered birth certificate which was marked as exhibit D2 to justify his name of Godlove Joseph Wandola as opposed to God Nkaranji. DW2 denied to know DW1, that the first time was in court before during preliminary inquiry (PI). He prayed the evidence of PW8 to be rejected. During cross examination by the State Attorney DW3, said he did not tell the court that on 2 and 3 March 2021 was in Mbeya. The last witness to testify for the defence side was Paul Ibrahim Mahaba (DW4), the third accused. He stated that on 2/3/2021 was at home, and 3/3/2021 went on with his Machinga business and on 13/3/2021 at 22:00hrs while asleep doors were opened and some people who introduced to be police entered, he was then arrested and taken to Police Station. DW4 denied to commit the offence and that he was not connected to the alleged murder by the prosecution witnesses. DW4 also denied to know DW1 before being arraigned in court. This marked the end of evidence for both sides. From the above evidence it seems to me that whether one death of Christina Mwakilembe is not at issue. Death is termed unnatural when it is caused by violence or under suspicious circumstances or the body of any 17 person is found dead without it being known how that person died or it happen in sudden circumstances. In this case there is no direct evidence on the cause of death due to the fact that PW9 failed to conduct post mortem examination due to decomposed body of the deceased. Nonetheless, from the testimonies of PW2 and PW7 that the deceased disappeared in controversial circumstances and the environment she was found as testified by PW1, PW2, PW3, PW6, PW7 and PW8 leads to no other conclusion than unnatural death. This is given more credence because the deceased's body was found in the house she did not reside, in the store which was locked. In the circumstances, I find the death of the deceased was unnatural one. She was thus killed. The issue therefore, is whether the prosecution proved beyond reasonable doubt that the accused persons are killer of the deceased. The principles in criminal cases like this are, the burden of proof lies to the prosecution. This is per section 110 of the Evidence Act, Cap. R.E 2022. Also, the standard of proof is beyond reasonable doubt. This is per section 3 (2) (a) of the same Act. 18 Having gone through the evidence of all nine witnesses paraded by the prosecution in this case, they do not directly state to have seen the accused persons murdering the deceased. The available evidence in my view is circumstantial. There is also oral confession and cautioned statement, exhibit Pl on the essence that the first accused confessed to have killed the deceased in accompany with other two persons whom he mentioned by the name of Paul Mwangwikwi and Godi Nkalani. Starting with circumstantial evidence, the law is trite in that for circumstantial evidence to be relied upon in convicting an accused, the chain of facts and circumstances must be incompatible with the innocence of the accused, and he should be incapable of giving an explanation or any reasonable hypothesis other than that of guilt. This position was illustrated in the number of decisions including the cases of Abdul Muganyizi v R (1980) TLR 262, Abel Mathias @Gunza @ Bahati Mayani vs The Republic, Criminal Appeal No. 267 of 2020 [2023] TZCA 25 (20 March 2023: (TanzLII). Magendo Paul & Another v R (1993) TLR 219, Hamidu M. Timotheo v. Republic & Another (1993) TLR 125 and Hassan Fadhili v R (1994) TLR 89. In Abdul Muganyizi V R (supra) for example, the Court of Appeal of Tanzania held that: 19 "...the exculpatory facts must be incompatible with the Innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of guilty." In the case of Anthony Kayaga @ Mnibhi vs Republic, Criminal Appeal No. 550 of 2019 [2024] TZCA 284 (30 April 2024; TanzLII) the court quoted with approval a passage in R v Exall (1866) 4 F & F 922 at 929, 176 ER 850 in which Pollock CB compared the circumstantial evidence with a rope comprised of several cords. He said: "... One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus, it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion but the whole taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of." From the above, my task is therefore to evaluate relevant pieces of circumstantial evidence on record and determine if it can irresistibly be concluded that it is the accused persons and nobody else who killed the deceased. In the instant case, undisputed matters are that; One, the evidence by PW1, PW2, PW3, PW6 and PW7 was to the effect that the 20 deceased and her husband were reported to have disappeared. Two, it is the evidence of PW7 that the disappearance of the deceased was between 2nd and 3rd March, 2021. Three, the evidence of PW1, PW2, PW5, PW6 and PW7 are that at the house of the late Judge Mmila there was a watchman by the name of Samson and husband of the deceased. Four, it is the evidence of PW1, PW2, PW3, PW6, PW7 and PW8 that the deceased's body was discovered in the house of the late Judge Mmila on 07/03/2021. Five, the evidence of PW2, PW6 and PW7 that before 07/03/2021, he was reported to have disappeared and his whereabouts was unknown. Six, the 1st accused was arrested on 04/03/2021. It is then told by PW1 about the 1st accused went to his home on 04/03/2021, telling him about being instructed by the wife of the late Judge Mmila to collect some furniture and about the 1st accused leaving a certain parcel claiming to have been sent by the wife of Judge Mmila. It was also in the evidence of PW1 that the same parcel was later on found containing a mathematical set and a bottle. Though disputed by the 1st accused, there is evidence that 1st accused was found and then arrested for being found loading furniture from the house of the late Judge Mmila and at that time the watchman, the deceased's husband 21 was not there. It was further the evidence of the wife of the late Judge Mmila (PW5) that she had never talked to the 1st accused about transfer of furniture nor sent him any parcel. It is thus that the 1st accused story to PW1 was just conning. Not only that, but also PW3 stated in his evidence that having interrogated the 1st accused about the events that occurred at the house of Judge Mmila especially the act of loading furniture, the missing of the watchman at the same house and the discovery of the deceased body thereat, the 1st accused confessed by telling him to have involved in killing both; the deceased and her husband. According to PW3, following the confession, the 1st accused led the Police and showed where he and his fellow accomplice dumped the body of the deceased's husband. It is thus that, the 1st accused orally confessed to PW3. The term confession is defined under section 3 of the Evidence Act, Cap. 6 R: E 2022, to mean; "(a) words or conduct, or a combination of both words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence; 22 (b) a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence; (c) a statement containing an admission of all the ingredients of the offence with which its maker is charged; or (d) a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person making the statement has committed an offence." The above provision enumerates that confession to a crime may be written, oral, by conduct and/or a combination of all or some of them. It is settled law that oral confession of guilt made by a suspect before or in the presence of reliable witnesses, being it a police officer or a civilian sufficient by itself to ground conviction against the suspect. See Posolo Wilson @ Mwalyego vs Republic, Criminal Appeal No. 613 of 2015. Case law has gone a milestone that even where the court is satisfied that an accused person made an oral confession, it must take an extra stance to determine whether the oral confession is voluntary. See Alex Ndendya vs Republic, Criminal Appeal No. 207 of 2018 [2020] TZCA 202 [6 May, 2020; TanzLII] and Boniface Mathew 23 Malyango @ Shetani Hana Huruma & Another vs Republic, Criminal Appeal No. 358 of 2018 [2020] TZCA 314 (18 June 2020; TanzLII). In this case evidence of PW3 said the first accused cheated the deceased to go to judge Mmila house to talk with her husband, after the deceased entered, they strangled her and chopped the neck with a sharp instrument then carried the body into the store. It is no doubt that PW3 is the Police officer and there is no evidence from the 1st accused that the confession was procured involuntary. Apart from the oral confession, there is evidence on cautioned statement, exhibit Pl. It is the law that the very best of witnesses in any criminal trial is an accused person who freely confesses his guilt. In this case the confessional statement was repudiated by the 1st accused thus, requiring corroboration. In the case of Flano Alphonce Masalu @ Singu vs Republic, Criminal Appeal No. 366 of 2018 [2020] TZCA 197 (30 April 2020; TanzLII) the court stated; "The law is that where an accused person retracts his confession the court can convict him on the uncorroborated confession provided that it warns itself of the dangers of acting solely on such confession and if it is fully satisfied that the confession cannot be but true." 24 To be noted is that the confessional statement of the accused is the prosecution evidence, it must be considered in all angles by looking at its veracity, consistence and trustworthy together with other prosecution evidence. The statement must in detail explain the accused's involvement whether alone or with other person in the alleged offence. In Emmanuel Lohay and Udagane Yatosha vs Republic, Criminal Appeal No. 278 of 2010 [2013] TZCA 292 (4 March 2013; TanzLII) the Court observed that; "... the court described the essence of confessional statements as such that they should shed some light on how the deceased concerned met his death, role played by each of the accused person; such details as to assure the courts concerned that the person making the statement must have played some culpable role in the death of the deceased." Having gone through exhibit Pl, I am satisfied that it contains sufficient details from the plan to kill the deceased's husband to when the deceased found them carrying the sulphate bag and the deceased became zeal. This triggered the 1st accused to find the way to get rid of the deceased, that is to kill her. The story is best narrated in exhibit Pl in the following words: 25 "Tulipokuwa tunatoka getini tuiikutana na mke wa marehemu. Alituuliza tunapoenda nikamjibu kuwa tunaenda kutupa takataka. Yeye akauliza kuna takataka gani ziko hivyo na mbona zinabebwa hivyo? Nikamwambia kuwa zilikuwa ni matawi ya miti na ndiyo tuiiyoweka ndani ya mifuko hiyo, yeye akauliza tena yupo wapi SAMSON? Mbona hakumuona tangu jana? Nikamwambia kuwa asubirie turudi nije kumweieza mahaii aiipoenda. Tuiimuacha pale na sisi tukaenda kumtupa SAMSON. ....mimi niiienda nyumbani kwa SAMSON Hi niongee na mke wake. Niiipofika nilimkuta mkewe na nilimweleza kuwa SAMSON alisafiri toka tarehe 27/02/2021 na aiienda Dar kwa bosi ambaye aHkuwa amemuita. AHtaka aongee nao wote wawiii yaani bosi na SAMSON nikamwambia kuwa kesho tarehe 01/03/2021 mchana ataongea nao. Niiiondoka siku hiyo hiyo kabia ya kuiaia niiiwajuiisha wenzangu kuwa mke wa SAMSON tayari amesha tutiiia mshaka juu ya mahaii aiipokuwepo mume wake. Wao waiiniambia niendeiee 26 kumfuatilia kwa ukaribu huku nikiwapa taarifa,... Hipofika tarehe 02/03/2021 asubuhi mke wa SAMSON alinipigia simu na kunitaka niende kumchukuwa ngdrnbe na kondoo wangu. Niiienda kuwachukua na hapo aiiniuliza tena mahaii aiipoenda mumewe, nikamwambia Dar. Akataka aongee naye kwani alidai kuwa mbona katika simu yake hapatikani? Nikamwambia kuwa simu ya mumewe Hiharibika, hivyo kuna simu ya mtu ambayo huwa anaitumia iakini kwa wakati huo mtu huyo yupo kazini, hivyo jioni atakaporudi ndio ataongea naye. Niiipoondoka hapo niiiwatafuta wenzangu na kuwaeleza kuwa yule mke wa marehemu anatuhisi vibaya juu ya mume wake. Tukajadiiiana kitu cha kufanya na makubaiiano yetu tuiiyofikia ni ya kumuua mwanamke huyo Hi tuwe saiama. HIYO NDIYO SABABU ILITUFANYA TUMUUE. Tarehe 03/03/2021 1000 HRS niiienda nyumbani kwa SAMSON na niiimkuta mkewe... wakati huo tuiikubaiiana itakapofika majira ya saa 1700 HRS basi tukutane pale kwa marehemu MMILA Hi aweze kuongea na mumewe na bosi wao. Muda 27 huo huo niliwajulisha wenzangu kuwa tukutane pale kwa marehem u MMILA muda wa 1700 HRS kwa ujumbe wa "SMS" mimi nilibakia hapo nyumbani kwa SAMSON. IHpofika majira ya 1700 HRS tu/ie/ekea kwa MMILA na kumtaka yule mama afungue mlango tuingie ndani Hi aweze kuongea na mumewe. Alifungua mlango huo na wakati anaingia ndani na mimi ndiye niliyetangulia mbeie yeye akiwa nyuma yangu alivamiwa na PAULO aliyemkaba ROBA na kumwangusha chini. AHpiga mayowe ya kuomba msaada, GODI aiimchoma sehemu za shingoni kwa kutumia mkasi wa majani. Wakati huo mimi nilikimbilia kuchunguiia dirishani Hi kuona kama kuna watu wanakuja kutoa msaada...... alipokufa tulimvutia katika stoo ya nyumba hiyo pale chini palipokuwa na damu tuiifuta kwa kutumia mapazia. Mapazia hayo tuliyapeleka kule stoo ambapo tuiimfunika mke wa marehemu SAMSON...."(Bold and underlined emphasis is added). The quoted passage can be literally translated as follows: ... when we ere getting out the get we met the deceased's wife. She asked where we were going we relied that we ere going to throw away the garbage. She asked what kind of garbage were 28 carried like that. I told her there were tree branches. She asked again the whereabouts of SAMSON as she did not see him since yesterday. I told her to wait until I come back I will tell where he has gone. We left her there and went to dump SAMSON. ...I went to SAMSON's home to talk to his wife. There I told SAMSON's wife that SAMSON has travelled to Dar tohis boss since 27/02/2021. She wanted to talk to both, SAMSON and his boss I told her that by tomorrow -1/03/2021 to noon she will talk to them. I left, on the same day before I went to sleep I informed my fellows that SAMSON"s wife is doubting us about the whereabout of her husband. They aske me to make a follow up on her and inform tham. ...on 2/3/2021 in the morning SAMSON's wife phoned me telling me to go to take my cow and sheep. When I went to take them she again asked the whereabouts of her husband. I replied Dar. She asked to talk with him as his phone was not reachable. I told her husband's phone has defects so there was a phone he used but a person was absent at that time as he was at work then she would talk to him at evening when that person would be back. When I left I searched my fellows then told them that the deceased's wife has negative suspicious against us on her husband. 29 We talked and reached to a consensus to kill that woman so as to be safe. THAT IS THE REASON OF KILLING HER. On 3/3/20 1000HRS I went to SAMSON's wife at that time we agreed that at 1700HRS we meet at the late MMlLA's house so that she can talk with her husband and boss. At the same time I informed my fellows to meet at the place of late MMILA at 1700HRS and I remained at SAMSON's home. At 1700HRS we went to MMILA and required the same mother to open the door to get inside so as to talk with her husband. She open the door I was in front of her and she was behind me then PAULO attacked her by holding her firmly (kaba roba) and he kicked her down. She screamed for help, GODI chopped her on the neck with a garden scissors. At that time I rushed to look at the window if there was anybody coming to help. ...when she died we dragged her in the store of the house and we swept the place which had blood by using curtains. Those curtains we used to cover SAMSON's wife in the store. ..." The above statement of the 1st accused narrates many details and elaborate circumstances which only a person directly responsible for the death of the deceased would know. A thread of events is well connected and brings the meaning enough to understand how the 1st accused with 30 his accomplice formed the intention of killing the deceased. See, Michael Mgowole and Another vs Republic Criminal Appeal No 205 of 2017 CAT at Iringa on a detailed statement amounting to confession. The statement is well corroborated with other prosecution evidence for example PW1, PW2, PW3, PW6 and PW7 said the deceased body was found in the store covered with mattress, the same story is found in exhibit Pl 'alipokufa tulimvutia katika stoo ya nyumba hiyo' literally translated 'after dying we dragged her to the store of that house' Another corroboration is evidence by PW1, PW2, PW6 and PW7 said on 4/3/2021 the accused went to collect furniture to the house where the deceased was found. The same is found in the statement of the accused Hatimaye tuiifikia makubaiiano ya Kwenda kuchukuwa vyombo vya marehemu Jaji MMILA ndipo siku ya tarehe 04/03/2021 16:00hrs tuiikamatwa mimi derev na turn' boi was gari ia mizigo niiiiokodisha kwa ajiii ya kubeba mizigo ya marehemu Jaji Mmila.// literally means finally we agreed to go to collect furniture of late Jaji Mmila, and on 04/03/2021 at 16:00hrs we were arrested me, driver and turn boy of the car I hired for purpose of carrying property of Jaji Mmila.' In his defence the 1st accused evidence was to the essence that due to the conflict revolved in the Judge Mmila's family, that the wife of 31 Judge Mmila and PW6 were not in good terms. Thus, that PW6 and the daughter of judge Mmila one Upendo concocted the case of house breaking and stealing of which he was acquitted. I am not convinced with this piece of evidence that it was a framed case. Because, PW6 was not cross examined on this aspect. And PW5 never testified or cross examined on the allegation. If the accused intended conflict of the family to be the theme of his defence was required to raise it during cross examination and not during defence. Another 1st accused defence is that the offence was committed while in police custody. Thus, making him impossible to have been involved in murdering the deceased. I have considered this piece of evidence and found that it was cleared by PW7 that the deceased disappeared on 2nd or 3rd March, 2021. Other evidence from PW1, PW2, PW3, PW6 and PW7 was that on 04/03/2021 the deceased had already disappeared. The point, I want to derive here is that until 04/03/2021, the 1st accused was not yet arrested. Furthermore, through exhibit Pl the 1st accused confessed that they killed the deceased on 03/03/2021. The evidence of PW9 was that on 08/03/2021, when the deceased body was taken to him for post mortem it was decomposed which led him to conclude that the death of the deceased occurred four days before. 32 Thus, the death of the deceased occurred before the 1st accused being arrested. Regarding the 2nd and 3rd accused person, there is no any evidence incriminating them apart from the cautioned statement which mentioned two persons by the name of Paul Mwangwikwi and Godi Nkalani, there is no further evidence to prove that the names mentioned are the same with Godlove Joseph and Paulo s/o Ibrahim Mahaba as the 2nd and 3rd accused respectively. It is also my opinion that, even if, had been proved that the mentioned names in the cautioned statement are the 2nd and 3rd accused persons, the law requires where an accused confesses to an offence and incriminates other person(s), the confession itself cannot lead to a conviction of those persons. This is per section 33 (1) and (2) of the Evidence Act. This means that confession by a co-accused needs corroboration of other evidence to lead a valid conviction. See Thadei Mlomo and Others v. Republic [1995] TLR 187 and Flano Alphonce Masalu @ Singu vs Republic (Criminal Appeal 366 of 2018) [2020] TZCA 197 (30 April 2020) (TanzLii). In this case, there is no evidence to corroborate the 1st accused's confession statement mentioned the 2nd and 3rd accused. It was not 33 testified if the persons arrested loading furniture with the 1st accused were the 2nd and 3rd accused. In the absence of corroborating evidence therefore, the charge against the 2nd and 3rd accused is not proved. Owing to what I have explained above, I find the prosecution ably proved the case beyond reasonable doubt against the 1st accused, Mussa Bernard Bethuel he murdered one Christina Mwakilembe. I thus find him guilty. Whereas, the 2nd and 3rd accused persons are found not guilty therefore, I acquit them forth with. In the end, I hereby convict the 1st accused, Mussa Bernard Bethuel for the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E 2019, now R.E 2022. D.B. NDUNGURU JUDGE 09/07/2024 34 SENTENCE The offence of murder has only one sentence. The sentence is provide for under section 197 of the Penal Code. The said section provides: ’797 A person convicted of murder shall be sentenced to death" (emphasis added) From the wording of the statute the sentence imposed is a mandatory not discretionary. That being the position of the Law, I have no option/alternative rather to impose the statutory sentence. I hereby sentence the accused person one Mussa s/o Bernard Bethuel to suffer death as per section 197 of the Penal Code (Cap 16 R.E. 2022) I further direct that he shall suffer death by hanging as provided for under section 26(1) of the Penal Code, (Cap 16 R.E. 2022) Order accordingly. i D.B. Ndunguru L JUDGE 09/07/2024