R Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT SINGIDA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 158 OF 2022 THE REPUBLIC VERSUS 1. BARAKA LEONARD…………………………………………………...…1ST ACCUSED 2. MOHAMED HAMIS…………………………………………………..….2ND ACCUSED JUDGMENT Date of last Order: 19th June, 2024. Date of Judgment: 28th June, 2024. E.E. KAKOLAKI, J. On the 26th day of July, 2021, the deceased Abrahamani Juma who was living with his mother Hadija Shabani Itungulu (PW1) had set out to watch a video show at Kipumbwiko village center located at Ding’unyi ward within Ikungi District in Singida Region. He could not return home until 27/07/2021 morning hours when his dead body was found thrown at Kipumbwiko Primary School farm. Prior to discovery of his body on the night of 26/07/2021 the 2nd accused person Mohamed Hamis who was living within the same village had gone at his father’s home one Hamis Omary Chima (PW2) and disclosed to him of the presence of 1st accused one Baraka Leonard at his home and that, he had told him to have killed one Abrahaman Juma Yuda. Shocked with the information 1 received and in company of his son (2nd accused) PW2 decided to pass that information to the Mungimu suburb chairman within Kipumbwiko village one Peter Ramadhan Mdaha (PW4), a ten cell leader Juma Mohamed and one Hamis Mohamed, whom together went up to the 2nd accused person’s house where they found the 1st accused asleep on the bed with a machete stained with blood laid down on the bed side. On interrogation with him it is said, the 1st accused confessed to have killed the deceased and damped his body at Kipumbwiko Primary School farm where he agreed to lead them to as a result deceased body was discovered there, laid in the said farm. Before going there it is contended they passed at the 1st accused’s house whereby blood stains were found on the walls of his room and on his bed. A report on that murder incident was passed to the police officers at Ikungi Police Station, 1st accused arrested, his house searched and a piece of mattress cover containing blood stains collected from his house by Dr. Iddi Juma (PW7) in company of a police officer PW9 and one machete (exhibit PE1) recovered from 2nd accused’s house by PW3, while the deceased body examined by PW7 in which cause of death established to be due to Severe Haemorrhage due to open wound on the neck and multiple wounds on the head as per the report exhibit PE3. During investigation it is asserted, the 1st accused recorded extra-judicial statement (exhibit PE2) before justice of peace (PW6) where allegedly confessed to have killed the deceased Abrahaman Juma in collaboration with the 2nd accused person. The collected samples one machete, a piece of mattress cover and 2 blood collected from the deceased body were sent to the Government Chemist Laboratory Authority (GCLA) by the investigator (PW9) for DNA test, analysed and a report (exhibit PE5) prepared by PW10. The 2nd accused was also arrested and joined with the 1st accused before the two were charged of Murder, contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2019], where it is alleged they murdered one Abrahamani Juma, on the 26/07/2021 at Kipumbwiko village, Dung’unyi ward, within Ikungi District in Singida region. When the charge was laid at their door both accused persons flatly denied their accusation the result of which the prosecution summoned a total number of ten (10) witnesses and tendered five (5) exhibits in a bid to prove its case against them, while the accused defending themselves under oath as DW1 and DW2 without any exhibit to tender. The tendered and admitted prosecution exhibits as hinted above were the machete exhibit PE1, extra judicial statement exhibit PE2, Post mortem examination report exhibit PE3, sample receipt notification exhibit PE4 and DNA Analysis report exhibit PE5. Throughout the proceedings the prosecution team was composed of Mr. Almachius Bagenda, Mr. Godfrey I. Songoro and Miss. Caren Rwebangila, learned State Attorneys while the 1st and 2nd accused persons defended by Mr. Cosmas Luambano and Mr. Peter Ndimbo respectively, both learned counsel. At the conclusion of defence case both prosecution and defence counsels wished not to enter their closing submission instead left it for the Court to consider the evidence adduced and proceed to determine on the guilty or 3 otherwise of accused persons. In this judgment I am not intending to reproduce the whole evidence as adduced by both parties, rather I will be making reference thereto in the course of determination of issues which will be disclosed soon hereunder. It is a living principle of law that, in proving of all criminal cases which are constituted of two elements of Actus reus (accused’s act or conduct) and mens rea (accused’s guilty mind or mental state or intention to commit), the onus of proving that it is the accused person(s) who actually committed the offence charged with lies on the shoulders of prosecution as the burden never shifts unless otherwise provided by the law. See the cases of Mohamed Said Matula Vs. R [1995] T.L.R. 3 (CAT) and Aburaham Daniel Vs. R, Criminal Appeal No. 6 of 2007, (CAT-unreported). It is so as the law is settled under sections 110(1) and (2) and 112 of Evidence Act, [Cap. 6 R.E 2022] that, the burden of proving existence of a certain fact lies on the person who wishes the Court to believe its existence and enter judgment on his favour. And the standard of proof always is that of beyond reasonable doubt as well stated in section 3(2)(a) of the Evidence Act, [Cap. 06 R.E 2022]. The standard and burden of proof in criminal matter were also given more postulation by the Court of Appeal in the case of Nathaniel Alphonce Mapunda and Benjamin Mapunda Vs. R [2006] TLR 395, when the Court observed thus: (i) As is well known, in a criminal trial the burden of proof always lies on the prosecution. Indeed, in the case of 4 M oham ed Said Vs. R this Court reiterated the principle by stating that in a murder charge the burden of proof is always on the prosecution, and the proof has to be beyond reasonable doubt. (ii) Where circumstantial evidence is relied on, the principle has always been that facts which an inference of guilt is drawn must be proved beyond reasonable doubt. (iii) In criminal charge, suspicion alone, however grave it may be is not enough to sustain a conviction, all the more so, in a serious charge of murder. ” In an earlier case of Miller Vs. Minister of Pensions (1947) ALLER 372 - 373, Lord Denning expounded on the degree of proof in criminal cases and stated in the following words: "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof of beyond reasonable doubt does not mean beyond the shadow of doubt....?” It is also a principle of law that, accused person shall not be convicted on the basis of weakness of his evidence/defence but rather on the strength of prosecution evidence or case. See the case of Mohamed Haruna @ Mtupeni and Another Vs. R, Criminal Appeal No. 259 of 2007 (CAT-unreported) at page 7 and Mohamed Said Vs. R, Criminal Appeal No. 145 of 2017 CAT- Tanzlii when quoted with approval the decision of Supreme Court of Philippines in the case of People of the Philippines Vs. Benjamin A. Elmancil, G. R. No. 234951, dated March, 2019. 5 As alluded to above in this case both accused are accused to have murdered one Abrahaman Juma, contrary the sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2019]. Section 196 of the Penal Code, reads: 196. Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. With the above cited guiding principles for determination of any criminal matter, in this case the prosecution is expected to lead water tight evidence proving beyond reasonable doubt that, it is actually the accused persons who committed the offence they are charged with and not otherwise as suspicion alone cannot carry the day. And in so doing is duty bound to establish three elements of the offence murder as to whether: (1) The deceased was killed or died of natural death. (2) The accused person(s) is/are responsible for the alleged killings (if unnatural death is established). (3) The accused person(s) had malice aforethought at the time of killing, if it is already proved that is/are responsible for killing the deceased. To start with the first element the evidence as led by PW1 (deceased mother), PW2 (2nd accused’s father), PW4 (Mungimu suburd chairman), PW7 (doctor) and PW9 (investigator) proves that, Abrahaman Juma is dead and died of unnatural death after sustaining cut wounds on his neck and head. Their evidence is confirmed by the report of post mortem examination exhibit PE3 6 that established the course of death to be Severe Haem orrhage due to due to open wound on the neck and multiple wounds on the head. With that evidence this court is satisfied that, Abrahaman Juma is dead and died of unnatural death. In other words the prosecution has managed to establish to the required standard that Abrahaman Juma was killed and his death was unnatural, hence proof of the first ingredient. Next determination is the second element as to whether the accused persons are responsible for deceased death. From the evidence adduced in court there is no any eye witness to prove to the court’s satisfaction that, he saw the accused persons killing the deceased person. The only evidence in which the prosecution relied on is circumstantial evidence, forensic evidence (DNA) and confession by the 1st accused person which is in two sets. One, confession leading to discovery of deceased’s body and secondly, his confession before the justice of peace (PW6). The said evidence was led through PW2, PW3, PW4, PW5, PW6, PW7, PW9 and PW10. It was in the testimony of PW2 who is also 2nd accused’s father that, on the night of 26/07/2021 while asleep at his home was awaken by his son who informed him that the 1st accused person was at his house and had told him his killing of a person whom he mentioned to him as Abrahaman Juma. In response to that shocking news PW2 in company of his son decided to inform the Mngimu suburb chairman (PW4) who also passed the information to the ten-cell leader Juma Mohamed and one Hamis Mohamed, whom together called at 2nd 7 accused’s house and found the 1st accused asleep on the bed in the 2nd accused bedroom, with a blood stained machete aside of him. On arresting and interviewing him as to the correctness of the information received from the 2nd accused, PW2 went on to narrate, the 1st accused confessed to have killed the deceased Abrahaman Juma and damped his body in the Kipumbwiko Primary School farm where he was ready to lead them to. According to him before they were taken to the place where the body was thrown they passed at the 1st accused house and found blood stains on the walls of the room and mattress. And then the 1st accused led them up to Kipumbwiko Primary School farm where the saw the deceased body laid down as in the course of going there other village leaders such as village chairman were informed and joined them. PW2 version is corroborated by PW4 who gave a similar account on how the information of the killing of Abrahaman Juma was received, the 1st accused arrested and deceased body discovered in the farm of Kipumbwiko Primary School when led by the 1st accused. After discovery of the deceased body PW2 and PW4 said, the 1st accused was taken to village office and later on re- arrested by the police officers when attended the scene of crime in company of the doctor (PW7). As to the arrest of the 2nd accused it was their testimonies that, he was arrested after the 1st accused had questioned as to why taking him alone while the two had cooperated in executing the deceased person. PW4 also informed the Court of the search of the 2nd accused’s home by police officer in his presence whereby one machete with blood stains was seized, after 8 discovery of the deceased body and arrival of the police officers at the scene. His evidence on seizure of the machete was corroborated by A/Insp. Philbert (PW3) who conducted the said search and testified to the effect that, on the 27/07/2021 at about 10.00 hours was instructed by the OC-CID SP Magoma Magina Mtani to conducted search in the 2nd accused house. That, in company of the 2nd accused, PW4 and village chairman one Charles Kisuda managed to conduct search at 2nd accused’s home whereby some ashes of burnt clothes were retrieved from the kitchen and a machete with blood stains found and seized from the main house, which exhibits were all handed to Sgt. Frank (PW5) as exhibit keeper. Further that there is evidence of PW9 to the effect that, search was also conducted in the 1st accused’s house in her presence and 1st accused who was brought to the scene after his arrest by the police, whereby a piece of blood stained mattress cover was collected by PW7 who also managed to collected blood samples from deceased’s body when examining it as she handed the said mattress cover to PW5 who registered all exhibits in the register book (PF16), since the blood sample was kept by PW7 in the dispensary’s refrigerator before taken to Government Chemist Laboratory Authority (GCLA). PW9 went on stating on how on 04/08/2021 collected the machete (exhibit PE1), a piece of mattress cover with blood clots from PW5 and the deceased’s blood sample drawn from PW7 and handed them at the GCLA offices, Dodoma branch for DNA test, issued with sample receipt notification exhibit PE4 before she was 9 later on called collect the DNA report and machete that was submitted for test and handed the exhibit back to PW5 while keeping the report in the case file as an investigator of the case. The handing over of machete by PW3 to PW5 and a piece of blood stained mattress cover by PW9 to PW5 and their collection for transfer to the GCLA and later on return of the machete to PW5 by PW9 were well explained by these three witnesses. In his defence the 1st accused denied to have been found at the 2nd accused home on the night falling to 27/07/2021 instead contended was arrest on 27/07/2021 morning hours when he had visited the 2nd accused for planning their business dealings, taken to police station where he underwent several tortures forced to admit the accusations that he had killed but refused, before he was taken back to the village office and later on had his house and 2nd accused’s house searched without anything retrieved therein. As for the 2nd accused also denied to have participated or involved in commission of an offence charged with deposing that, it is the 1st accused who came at his home on the night of 26/07/2022 with blood stained machete and informed him of the killing of a person whose name did not disclose to him, the information which he passed to his father (PW2) on the very night, the result of the which PW4, Juma Mohamed and Hamis Mohamed were also informed and all of them came to his home where they found the 1st accused asleep on his bed. And that, they put him under arrest before he confessed to them to have killed a person and decided to take them to the place he had damped his body while 10 leaving him behind. It was his father testimony that, later on he heard an alarm coming from Kipumbwiko Primary School which hue he attended but did not manage to see and identify the deceased body. And that, while at the scene of crime he was arrested together with his father (PW2) and joined with the 1st accused at the police station before his father was released later on while taken to court with his colleague. In short both accused persons denied to have either killed, known the deceased before or seen his dead body after death, thus inviting the Court to find them not guilty of the offence charged with instead acquit them. Having considered oral account of PW2 and PW4 concerning arrest of the 1st accused and discovery of deceased body I find it to be more cogent and credible. I so find as I had an opportunity to observe their demeanors when testifying in Court and got impressed and satisfied that, indeed were witnesses of truth hence believe their testimony on the 1st accused being found in the 2nd accused room with blood stained machete and his confession before them to have killed the deceased that led to the discovery of deceased’s body at Kipumbwiko Primary School farm. I therefore find that, the 1st accused orally confessed before PW2 and PW4 to have killed the deceased, which confession led to discovery of deceased’s body and further that, his confession leading to discovery serves as corroborative evidence to oral confession before PW2 and PW4 as it was held in the case of Mboje Mawe and 3 Others Vs. R, Criminal Appeal No. of 2010 (CAT-unreported). In Mboje Mawe and 3 Others (supra) 11 the Court of Appeal having considered the fact that the first appellant had orally confessed before PW7 and independent witness PW1 and showed where the deceased’s body parts were buried and eventually dug them out had the following observation to make: ’’PW1 and PW2 Yusufu Ramadhani, who were independent witnesses so to say, were positive that it was the first appellant himself who showed where the body parts were buried and eventually dug them out. As also held by this Court in Hadija Salum and Another v R epublic, Criminal Appeal Nos. 11 and 32 of 1996 (unreported), the “confession leading to discovery” in this case is sufficient corroborative evidence of the oral confession before PW1 and PW7.’’ I discount 1st accused’s defence that, he was not arrested on the night of 26/07/2021 and that, he made no confession leading to discovery of deceased body before PW2 and PW4. I so do for two reasons. One, his assertion that he was arrested on 27/7/2021 morning at the 2nd accused home is a total lie as his version is not supported by the 2nd accused whom he alleges to have been arrested at his home who confirmed to the Court that, the 1st accused was arrested on the night falling on 27/07/2021. Secondly, had he not been arrested on the night falling on 27/07/2021 as stated by PW2 and PW4, the fact which was also confirmed by the 2nd accused in his defence, I believe the deceased body would not have been discovered before it was dawn since the 2nd accused dissociated himself with the 1st accused’s act of leading PW2, PW4 and two others to the place allegedly the deceased body was damped. I have also 12 considered but disagree with his defence during cross examination that, he had misunderstanding with PW2 hence a suggestion that, he might have testified lies against him. I so do for two good reasons. One, he never disclosed the nature of the said misunderstanding for the Court to weigh and determine whether it could lead the said PW2 to testify lies against him. Two, Pw2 aside, PW4 had no reason to testify lies against him that he was arrested in the night falling 27/07/2021, for having no any odd relationship with him. Another set of evidence relied on by the prosecution incriminating the 1st accused person with the murder charges is his confession obtained from the extra judicial statement exhibit PE2 made before PW6 which was admitted without any objection, after PW6 had given detailed account on how he observed the Chief Justice Guidelines to Justice of Peace when recording statements of suspects under police custody, before and after recording the same. The 1st accused himself in his defence never denied to have made the said extra-judicial statement nor did he cross examine PW6 challenging that fact, hence this Court is left with no doubt that, he made the said statement (confession) before PW6 and was so done voluntarily. The said confession in exhibit PE2 therefore, in my humble opinion was never retracted or repudiated by the 1st accused person hence binding on him. Even if the same was retracted/repudiated the law is very clear that, this Court can rely solely on it to base conviction against its maker without corroboration after warning itself of the danger of so acting and after satisfying itself that, it to contains nothing 13 but the truth. See the cases of Tuwamoi Vs. Uganda [1967] EA 84, Hatibu Gandhi and Others Vs. R [1996] TLR 12 (CA) and Dickson Elia Nsamba Shapwata and Another, Criminal Appeal No. 72 of 2007 (CAT-unreported). It is noted by the Court that, in the exhibit PE2 the 1st accused person narrated in detail on how together with the 2nd accused executed murder of Abrahaman Juma on the night of 26/07/2021. He explained on how on 22/07/2021 in company of 2nd accused visited his father with a request to take them to Mzee Mtiti a traditional healer so that they could be given medicine for cleansing their fortune and enhance or improve their business (kusafisha nyota ya biashara). That his father responded positively and took them to said Mzee Mtiti who instructed them to claim life of human being (kill a human being), thus thereafter went back home to comply with the said instructions. According to him, on the 26/07/2021 at 20.00 hours in company of 2nd accused were moving his belongings into the new house that he had shifted in, when they met the deceased Abrahaman who joined and followed them up to his house after passing at 2nd accused house. While in his house 1st accused continued narrating, the 2nd accused left the two (1st accused and deceased) inside and went back to his home before he later on resurfaced in possession of a machete and told him ‘vipi huyu kijana mbona yupo kwenye anga zetu’’ literally meaning the deceased was at their disposal. He said, the 2nd accused convinced him to execute the instruction given to them by the traditional healer (mganga) Mzee Mtiti, but he hesitated. That, the 2nd accused who threatened to hack the 14 deceased with machete, pulled him in the bedroom but the later struggled and overpowered him while the machete falling down before the 2nd accused held him tightly on the bed with both hands. He then asked the 1st accused to cut him with the machete and the later respondent by cutting him twice on the head while the 2nd accused slaughtering his neck with the same machete before he lost conscious and finally succumbed to death. The two he narrated, decided to go to the 2nd accused’s house where they burnt their clothes that were soaked with blood and cleansed themselves with hot water, before they agreed to go back to his house, where they removed the deceased body and damped it at Kipumbwiko Primary School farm. Later on he said, went to sleep in the 2nd accused bedroom, before he was arrested some few hours later following 2nd accused’s act of reporting to the suburb chairman who came with other three trained militia. According to his statement, he executed the said murder together with the 2nd accused. From the 1st accused’s story as narrated above, I am left with no doubt that, his confession in exhbit PE2 is nothing but the truth as no one would expect a person who did not commit the alleged murder to render such a detailed account on what happened and the motive behind such killing. It is so as the 1st accused’s version in exhibit PE2 on the cut wounds inflicted on the deceased’s head and neck is reflected in the summary of the report on post- mortem examination of deceased body exhibit PE3 that observed the deceased’s head to have multiple cut wounds on the head and complete cut of 15 his esophagus and larynx. Even if the statement was retracted/repudiated which is not the case here still, I would have maintained the same position for one good reason that, what is stated in exhibit PE2 is nothing but the true account of what happened and proceed to accord it heavy weight and convict 1st accused even without corroboration, after warning myself to the danger of doing so as it was held in Tuwamoi (supra), Hatibu Gandhi and Others (supra) and Dickson Elia Nsamba Shapwata and Another (supra). I so do since the same was not retracted/repudiated, hence worth of being believed and safely relied on to convict the 1st accused person on the charge of murder of Abrahaman Juma. The exhibit PE2 I further hold corroborates 1st accused’s oral confession made before PW2 and PW4. As to the 2nd accused person there is no doubt that, in exhibit PE2 the 1st accused confession incriminates him. It is trite law in terms of section 33(2) of the Evidence Act [Cap. 6 R.E. 2022], a conviction of an accused person shall not be solely based on a confession of a co-accused without any corroboration from other independent evidence. See also the cases of Pascal Kitingwa Vs. R, [1994] T.L.R 65, Abubakari Issa @ Myambo Vs. R, Criminal Appeal No. 34 of 2010 (CAT-unreported), Julius Charles @ Sharobaro and 2 Others Vs. R, Criminal Appeal No. 167 of 2017, Charles Issa @ Chile Vs. R, Criminal Appeal No. 97 of 2019 and a recent one of Nuru Venevas and 2 Others Vs. R, Criminal Appeal No. 431 of 2021 (CAT) Tanzlii. Now the follow up question is whether there is any other independent evidence 16 to corroborate 1st accused confession incriminating the 2nd accused? With due respect I do not find any at the moment save for forensic evidence which I am about to discuss soon. The third set of evidence connecting the accused persons is forensic evidence on DNA test results, where the machete (exhibit PE1) obtained from the 2nd accused’s house in which the 1st accused was found with asleep when arrested and then seized by PW3, a piece of blood stained mattress cover collected from 1st accused’s bedroom by PW7 and blood sample drawn from the deceased person by PW7, were sent to the GCLA for analysis and comparison and worked on by PW10. From the DNA analysis report exhibit PE5 and PW10’s evidence, the said samples were exhibited to contain DNA profiles of the same male gender. It was concluded that, chances that the DNA profiles in the blood sample were not related to the DNA profiles found in the machete and blood stained mattress cover is one out of a billion. Meaning that, the samples were related or that, the blood in the machete and mattress cover came from the deceased person. For the DNA report or any forensic evidence to be relied upon by the Court in my humble view its chain of custody must be properly established to the Court’s satisfaction. It is was held in the case of Chacha Jeremiah Murimi and 3 others vs. The Republic, Criminal Appeal No.551 of 2015 (CAT-unreported) that, in order to have a solid chain of custody it is important to follow carefully the handling of what is seized from the suspect up to the time of 17 laboratory analysis, until finally the exhibit seized is received in court as evidence. The rationale behind establishment of that chain of custody is to render assurance to the Court that the exhibit seized from the suspect is the same which was analyzed by the Chief Government Chemist. It is also settled law now that, apart from paper trail, chain of custody can also be established through oral account. See the cases of Kadiria Said Kimaro Vs. R, Criminal Appeal No. 301 of 2017 and Abdallah Rajabu Mwalimu Vs. R, Criminal Appeal No. 361 of 2017 (Both CAT-unreported) Tanzlii. In this case having considered prosecution’s evidence there is no dispute that, sold chain of custody was established through oral account of PW3 who seized the machete exhibit PE1 and handed it to exhibit keeper (PW5) for storage and PW7 who drew blood sample from the deceased person and stored it in the refrigerator at Ikungi Health Center and who also collected the blood stained mattress cover from 1st accused persons home which was handed to PW5, before the said samples/exhibits were handed to PW9 by PW5 for submission before GCLA offices Dodoma whereby a sample receipt notification form (exhibit PE4) was issued by GCLA to PW9. It is the said samples which as per PW10’s evidence were received at GCLA headquarters Dar es salaam from their office at Dodoma, worked on by him before the machete and DNA report were sent back to GCLA offices Dodoma after the piece of blood stained mattress cover and blood samples were destroyed at GCLA headquarters. It was further put to light of this Court by PW9 who collected the said DNA report and machete 18 from GCLA offices Dodoma that, she handed back to PW5 the said machete (exhibit PE1) and kept the DNA report in the case file, before the same were submitted to the prosecution during the trial. With that cogent evidence rendered by PW3, PW5, PW7 and PW9 whose demeanors are not questioned by this Court after observing and got satisfied with them, on the movement of samples from the collection or seizure points at 1st and 2nd accused persons and deceased body till their submission at GCLA Dodoma offices and Dar es salaam and then back to Ikungi Police station, coupled with the fact that they are type of samples which could not be easily change hands, this Court is satisfied that, the chain of custody of the said samples was solidly established beyond reasonable doubt through oral account. The settled law in that, for the Court to ground conviction on circumstantial evidence must satisfy itself and therefore find that, the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. See the cases of Simon Musoke Vs. R (1958) EA 718, Armand Guehi Vs. R, Criminal Appeal No. 242 of 2010 (CAT-unreported), Shilanga Bunzali Vs. R, Criminal Appeal No. 600 of 2020 (CAT-unreported) Tanzlii and Nuru Venevas and 2 Others (supra), to mention few. Applying the above settled principle in the present matter, since the mattress cover collected from the 1st accused person’s mattress in his room and machete (exhibit PE1) found in his possession when arrested at the 2nd accused house were proved to contain deceased’s DNA 19 profiles as per exhibit PE2, I find the evidence to be strong circumstantial evidence incriminating the 1st accused with the deceased murder. I so find as the fact that deceased blood stains were found on his mattress and the machete he was in possession of at the 2nd accused’s room when arrest as exhibited by the DNA report exhibit PE5, is incapable of any other explanation and therefore points irresistibly to his guilty that, it is none than himself who executed Abrahamani Juma. As to whether the 2nd accused is connected with the findings of exhibit PE2, I do not find any evidence connecting him. In his confession in exhibit PE2, the 1st accused mentioned him to have used the machete (exhibit PE1) to hack the deceased. However, the investigation did not bother to collect both accused’s samples for DNA comparison to establish whether their DNA profiles were found on the said machete. Had the investigation discharged its duties properly by drawing the said samples from both accused persons for DNA test purposes, I believe it would have been established whether the 2nd accused’s DNA profiles were present on the machete which fact in my considered opinion would be incriminatory evidence connecting the 2nd accused to the killing of the deceased person. Much as there is no evidence to establish that fact, I hold there is no corroborative evidence to the co-accused evidence against the 2nd accused. With the above findings I find the second element as to whether the accused persons are responsible for the killing of Abrahaman Juma is established against the 1st accused person only. 20 Moving to the last element as to whether the killing was actuated with malice aforethought. Section 200 of the Penal Code, [Cap. 16 R.E 2022] illustrates on what amounts to malice aforethought and it includes the accused’s intention to cause death or grievous harm to a person whether such person is dead or not. It is so since normally an attacker will not declare his intention to cause death or grievous bodily harm thus an inference of malice is drawn from various factors as demonstrated in the case of Enock Kipela Vs. R, Criminal Appeal No. 150 of 1994 (CAT-unreported), where the Court of Appeal had this to say: ’’Usually an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following: (1) the type and size of the weapon, if any, used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow or blows were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attacker's utterances, if any, made before, during or after the killing; and (7) the conduct of the attacker before and after the killing.’’ Applying in this case the above mentioned factors to be considered to infer malice aforethought holding it is evident to the Court from the evidence adduced that, the use of machete which is lethal weapon by the 1st accused aimed at causing deceased death coupled with the fact that, together with 2nd accused were executing Mzee Mtiti’s instructions to claim someone’s life for 21 their business prosperity, the 1st accused had formed an intention to kill. Secondly, parts of the body in which the weapon was applied such as head and neck were very sensitive. Thirdly, more than one blows of machete were applied to the deceased head with force leading to complete separation of his neck as per the deceased’s report on post mortem examination exhibit PE3. Fourth and lastly, his act of throwing the deceased body in the farm of Kipumbwiko Primary school before he decided to take hide at the 2nd accused’s home. All these factors grouped in a single basket prove to this Court beyond reasonable doubt 1st accused’s intention to cause deceased death, hence a finding that, the deceased killing was actuated with malice aforethought. The third element thus is established against the 1st accused person. With evidence on 1st accused’s confession as extracted from oral account of PW2 and PW4 and in his extra-judicial statement before PW4, circumstantial evidence based on seized machete and recovery of blood stained mattress cover from his house containing deceased DNA profiles as exhibited in exhibit PE5, I find the prosecution managed to prove beyond reasonable doubt the charge of murder against the 1st accused person. I therefore proceed to convict him with the offence of Murder contrary to section 196 and 197 of the Penal Code, [Cap. 16 R.E 2022] as charged. Equally I find the evidence against the 2nd accused who is incriminated by the co-accused evidence to be insufficient for want of corroborative evidence, hence proceed to acquit him of the offence of Murder charged with. 22 It is so ordered. Dated at Singida this 28th day of June, 2024. E. E. KAKOLAKI JUGDE 28/06/2024. SENTENCE In murder cases, once the accused person is found guilty and convicted, the only prescribed sentence is death by hanging. In this matter since the accused person Baraka Leonard is convicted of Murder, I hereby sentence him to suffer death by hanging as provided under sections 197 of the Penal Code, [Cap. 16 R.E 2022]. It is so ordered. E. E. KAKOLAKI JUGDE 28/06/2024. Court: The Judgment has been delivered at Singida today on 28th day of June, 2024, in the presence of both accused persons and their advocate Mr. Cosmas Luambano for the 1st accused and Mr. Peter Ndimbo, for the 2nd accused, Mr. Almachius Bagenda, State Attorney for the Republic and Ms. Veradina Matikila, Court clerk. Right of appeal explained. 23 E. E. KAKOLAKI JUGDE 28/06/2024. 24