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IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT SINGIDA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 10 OF 2023 THE REPUBLIC VERSUS 1. JAMES MAKURI GOTONO…….…………………………………...…1ST ACCUSED 2. SABRINA HAMISI @ BAKARI…………………….……………..….2ND ACCUSED 3. MWASITI ABDALLAH @ AMASI…………………….…………..….3RD ACCUSED JUDGMENT Date of last Order: 02nd July, 2024. Date of Judgment: 19th July, 2024. E.E. KAKOLAKI, J. The accused persons herein are jointly and together facing a charge of Murder; contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2019]. They are accused to have murdered Kaijage Odilo, a boy of seven (7) years old on the 14th day of March, 2021 at Uwanja wa Ndege area, Madewa Ward, Unyakuni Division within the Municipal, District and Region of Singida. It is was prosecution case that, on the fateful date during evening time the 2nd accused (DW2) who was the child of 13 years by then and housemaid to the family of Abdallah Chande Hamis (PW1) and his wife, were coming from the male saloon with the deceased (a nephew to PW1’s wife), where the deceased had gone to shave his hairs when they met the 1st accused on the road and stopped them. It is asserted, the 1st accused who had tossed a love 1 proposal to the 2nd accused asked for his answer from her, but was given a condition to kill the deceased first for his proposal to be accepted in which he agreed and took the two to his room where the deceased was executed and thrown in the septic tank/pit located within the premises he was taking care of. As the deceased could not return home the 3rd accused who happened to be at PW1’s home informed him (pW1) of the missing of the child (Kaijage) before PW1 returned home and later on decided to report the matter at the Police Post where he was issued with a report book number on the next day and proceeded to make child’s lost advertisements in the Radio. Subsequent to that, the 2nd accused went missing also on the 18/03/2021 in which her missing report was also made at police before she was found by PW1 on the 21/03/2021 and surrendered to police for interview. It is further asserted when interviewed by WP. 7406 Cpl. Josephine (PW2) under instruction of Insp. Juma Baltazari on 22/03/2021 morning, the 2nd accused confessed to have been responsible for deceased’s death whom they executed in collaboration the 1st accused and volunteered to show where the deceased’s body was damped before she led PW2 in company of other two police officers up to the farm under 1st accused’s care whereby the the deceased body was discovered and removed from septic tank/pit’s by fire brigade team. It was in that course when the 1st accused came closer to witness what was happening and got arrested after being pointed out to the police officers by the 2nd accused and both taken to police station for further interrogation. While at 2 the police station and before the 2nd accused person could record any statement it is contended, a social welfare officer (PW5) was summoned in compliance with the law of the Child Act and interviewed her where she narrated the whole story mentioning the 1st accused to have killed the deceased using a hammer under her directives after she had received instructions from the 3rd accused person. That is when the 3rd accused was also arrested and taken to police on the evening of 22/03/2021. Both 1st and 2nd accused persons recorded their caution and extra-judicial statements as the 1st accused made his caution statement before F. 4285 D/Sgt Noah (PW8) which was admitted as exhibit PE4 and extra-judicial statement before justice of peace, Zakaria Yuna Simon (PW7) admitted as exhibit PE3, while the 2nd accused recording her extra-judicial statement before Trust Lupondo (PW6) justice of peace as exhibit PE2. In the course of investigation the deceased body was examined by Dr. Yuna Hamis Juma (PW4) who prepared the report on post-mortem examination (exhibit PE1) establishing the cause of death to be due to Head Injury leading to internal bleeding. Following the result of that investigation the three accused persons were indicted before the Resident Magistrate Court of Singida Region facing the charge of Murder; Contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2019] as stated above. When called to answer their charge all accused persons returned a plea of not guilty the result of which the prosecution was forced to summon in court eight (8) witnesses and tender four (4) exhibits in a bid to prove the 3 accusation against them. On the defence side all accused person testified as sole defence witnesses and relied on no exhibit. Throughout the trial the prosecution was led by Ms. Elizabeth Barabara, assisted by Mr. Almachius Bagenda, Nehemiah Kilimuhana and Hussein Mkeni, all learned State Attorneys, while the defence manned by Mr. Cosmas Luambano, Mr. Peter Ndimbo and Jackson Mayeka, all learned advocates for the 1st,2nd and 3rd accused persons respectively. After closure of defence case both parties indicated their willingness not to render their closing submission due to the limited time scheduled assigned to each case in the session, thus invited the court to compose its judgment after examination and analysis of the evidence in record. I took time to review the evidence adduced by both parties for and against the charge of murder placed at the accused’s door. The main issue for determination is whether the charge against the accused persons has been prove by the prosecution to the required standard. Before responding to the above issue it is imperative to revisit the principles governing proof of criminal cases. It is a common law under section 110(1) and (2) and 112 of the Evidence Act, [Cap. 06 R.E 2022] that, whoever alleges existence of any fact and requires the Court to enter judgment in his favour has to prove existence of that particular fact as the burden of so proving lies on him. Further to that section 3(2)(a) of the Evidence Act sets the standard of proof in criminal 4 matters to be that of beyond reasonable doubt. The law is settled that, burden of proof never shifts unless otherwise provided by statute or any other written law. It is so since suspicion alone is insufficient evidence to prove accused’s guilty, more so in serious offence such as murder. See also the cases of Mohamed Said Matula Vs. R [1995] T.L.R. 3 (CA) and Nathaniel Alphonce Mapunda and Another (supra). It is it also trite law that, the accused person is under no duty to prove his innocence but rather raise doubts on the prosecution case. See the case of Aburaham Daniel Vs. R, Criminal Appeal No. 6 of 2007, (CAT-unreported). It is so as conviction will never base on weakness of defence case but rather strength of prosecution case. See the cases of Mohamed Haruna @ Mtupeni and Another, Criminal Appeal No. 259 of 2007 (CAT-unreported). Having navigated through the law related to proof of criminal cases, as alluded to herein above the accused person are charged of Murder which its ingredients are traced from section 196 of the Penal Code, [Cap. 16 R.E 2019] providing thus: 196. Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. From the above exposition of the law, I am of the settled view that for the prosecution to prove the charge of Murder, three ingredients must be established. One, whether the person claimed to have been killed is actually dead and his/her death is unnatural. Second, whether the accused person(s) 5 is /are responsible for his/her death and third, whether the alleged murder was actuated with malice aforethought. In this judgment I am not intending to reproduce the whole evidence as adduced by both parties rather will be referring to it in the due course of responding to the above raised issue. To start with the first ingredient the issue is whether Kaijage Odilo is dead, and if yes whether he died of unnatural death. From the evidence of PW1 who was living with the said Kaijage Odilo and identified his body after retrieval from the septic tank the 2nd accused (DW2) and PW2 who was led by the 2nd accused to discovery of deceased body from the septic tank/pit, there is no dispute that, the deceased went missing on 14/03/2021 and his body retrieved from the septic tank/pit in the farm/area under the 1st accused, hence a proof that Kaijage Odilo is dead. As to whether his death was natural or not, PW4’s evidence of PW4 and the report post-mortem examination (exh. PE1) provide an answer in that, deceased death was due to Head injury with internal bleeding after being hit on head with blunt object. This fact was also proved by DW2 in her defence when confessed that the deceased was hit with hammer on head something that claimed his life. As his head was hit with blunt object and got injured, the injury that caused him internal bleeding leading to death, this Court is satisfied and therefore arrive to the finding that, his death was unnatural hence proof of the first ingredient by the prosecution beyond reasonable doubt. 6 Next for determination is the 2nd ingredient as to whether the accused persons are responsible for the deceased death. From the evidence advanced by the prosecution in Court none of the eight (8) witnesses eye witnessed the accused persons killing the deceased as the only evidence relied on is confessions of the 1st and 2nd accused persons in exhibits PE2, PE3 and PE4 that were admitted in Court without objection through PW6, PW7, PW8 s well as 2nd accused’s confession during her defence (DW2) in which the 3rd accused person is also incriminated. That aside there is also oral confession by the 2nd accused before the social welfare officer (PW5) when interviewed her while at police station and before recording her caution statement. I wish to start with 2nd accused person’s oral confession before the social welfare officer (PW5). It was PW5’s testimony that, on the 22/03/2021 evening received a phone call from the police officer requesting her to attend at the police station’s Gender and Children Desk as there was a child whom they wanted to interview and record her statement. On arriving there she testified, met afande Stella who brought to her the female child whose names were Sabrina Hamis in which she interviewed after introducing first to each other. According to her, the 2nd accused whom she identified in Court too confessed to have been responsible for the killing of Kaijage Odilo after she met James Makuri (1st accused) on 14/03/2021 and sought his help to kill him before the latter agreed and executed the deceased at his place using a hammer and damped his body in the septic tank/pit. And that, when asked 7 her as to why killing him it was her response that, was so asked by aunt (mama mdogo) Mwasiti Abdallah who is Abdallah’s aunt, to the she was living and working with after being promised to be paid money. She said, after satisfying herself that the 2nd accused was voluntarily confessing she returned her to afande Stella for recording her caution statement. When cross examined by counsel for the 3rd accused after her statement made at police was admitted in court as exhibit DE1 and referred to it, PW5 admitted that the part stating that 2nd accused mentioned 3rd accused to have asked her to kill Kaijage and that, would be paid money was missing. During re- examination she insisted and explained on the said discrepancy that, when recording her statement before afande Stella she told her that fact but the same was recorded as she was asked to sign her statement without being read to her first. She stressed and prayed the Court believe her as what she testified on was to true account of what happened. Despite of the attempt by the counsel for the 3rd accused to discredit PW5’s evidence, I find the witness to be credible and reliable one. I so do for three good reasons. One, I believe her account on the reasons assigned as to why part of her evidence that the 2nd accused mentioned the 2nd accused to have asked her to kill the deceased for consideration of money was missing in exhibit DE1 when explained that, she narrated it to the recorder Stella but the latter could not put it in writing since was asked to sign the statement without being read to her first. I so believe as exhibit DE1 is self-explanatory 8 in that the said statement was signed by PW5 without being read to her first. Second, I had an opportunity to observe her demenour when testifying and got impressed that she was a witness of truth as she stood firm and was straight in her response during both examination in chief and cross examination stages. Third, her testimony earns much more credibility from the evidence of 2nd accused person when defending herself (DW2) for not disowning the fact that, she disclosed to her (PW5) to have been asked by the 3rd accused to kill the deceased for consideration of Tshs. 1 million as also confirmed by her (2nd accused) during cross-examination by the prosecution in her defence (DW2). In view of the above this Court is satisfied that, the 2nd accused made oral confession before PW5 incriminating both 1st and 3rd accused persons to have been responsible for the deceased death. The second set of confession by the 2nd accused comes from her extra-judicial statement before justice of peace (PW6) in exhibit PE2, which as alluded to above was admitted in Court without her objection as well as in her defence (DW2) when confirmed to have recorded it before justice of peace after being accorded with all her rights. In both exhibit PE2 and her defence (DW2) the 2nd accused narrated the whole story on how the deceased was killed by the 1st accused using a hammer and his body damped in the septic tank/pit and that, it is her who engaged the 1st accused to execute the deceased in compliance with the request/demand by the 3rd accused to so do. Apart from confessing to be responsible for deceased death in collaboration with 1st and 9 3rd accused persons during her defence (DW2) she prayed the court to assist and acquit her as she committed the offence when she was 13 years old. It is settled law that, an accused person intending to object admissibility of a statement/confession, must do so before it is admitted and not during cross examination or during defence. It is so as confession or statement will be presumed to have been voluntarily made until objection to it is taken by the defence on the ground, that it was either not voluntarily made or not made at all. See the cases of Twaha Ali and 5 Others Vs. R, Criminal Appeal No. 78 of 2004, Paul Maduka and 4 Others Vs. R, Criminal Appeal No. 110 of 2007, Sulemani Hassani Vs. R, Criminal Appeal No 364 of 2008 and Nyerere Nyague Vs. R, Criminal Appeal No. 67 of 2010, (All CAT- unreported). In this matter fact that, the 2nd accused did not object to the admissibility of exhibit PE2 coupled with the fact that, she also confessed in her defence (DW2) to have committed the offence, is a proof that her confession in exhibit PE2 was obtained voluntarily and I so find. The follow up question is whether a confession in both oral and exhibit PE2 can be relied on to convict the 2nd accused person. The trite law is that, it is unsafe to rely on uncorroborated repudiated/retracted confession to base accused’s conviction unless the court warns itself of the danger of acting upon such a confession and is fully satisfied that, such confession cannot but be true. See the cases of Hatibu Gandhi and Others Vs. R [1996] TLR 12 (CA) and Dickson Elia Nsamba Shapwata and Another Vs. R, Criminal 10 Appeal No. 92 of 2007(CAT-unreported). In this matter the 2nd accused confession as found above is neither repudiated nor retracted hence the requirement of corroboration before acting on it to convict her does not come in. However before acting on the same against her and the 1st and 3rd accused who are incriminated basing on the evidence of co-accused, I find it imperative to establish to the court’s satisfaction whether what is contained in exhibit PE2 is truth or not. Having gone through the said exhibit PE2 this Court is satisfied that, its contents is nothing but the true account of what she knows and participated in during deceased’s execution as her narration is so detailed explaining as to how herself, 1st and 3rd accused were involved or participated in the killing of Kaijage Odilo (the deceased). She explained on how the 3rd accused Mama Naa (PW1’s aunt/mama mdogo) assigned her a job to kill the deceased and how on 14/03/2021, asked her to take the deceased to the saloon for shaving hair and later on hanged around Ginnery street as on that date she had to either execute her request or else miss the promised money (Tshs. 1 million). That, it is on the same day evening when were close to their home with the deceased met James whom she asked to assist her to kill the deceased and later agreed as he took both of them to his home drew a hammer before heading to the septic tank/pit where 3rd accused (ma mdogo) had instructed her to go where the 1st accused whom she had also promised to give Tshs. 100,000/- hit the deceased on the head by using the said hammer and the 11 child fell down. After that execution the 2nd accused narrated further that, she ran back home where she had left ma mdogo (3rd accused) and told her that their mission was complete before later on she (3rd accused) went to the scene of crime to confirm and came back informing her (2nd accused) that, it is true they had thrown the body in the septic tank/pit. And that, she (3rd accused) would give James (1st accused) his money while warning her not to tell anybody that secret as when his boss (kaka) came back and asked for the whereabouts of Kaijage was told by her (2nd accused) that, since he had gone to shave his hair was not yet to come back. And further, that ma mdogo (3rd accused) asked her to go at her place and live there if she was afraid of continuing to stay there before she decided to leave home until when his boss Abdallah (PW1) found her and took her to the police station. From what the 2nd accused narrated in exhibit PE2 and in court during her defence (DW2), this Court is satisfied and therefore safely arrive to the finding that, her confession is nothing but the truth since such detailed story could not come out of the person who had no knowledge of what had happened to the deceased, the confession which also I find led to discovery of the deceased body. It is trite law that where a confession is found to be true can corroborate another confession against its maker. See the case of Mboje Mawe and 3 Others Vs. R, Criminal Appeal No. 86 of 2010 (CAT-unreported). In this matter since exhibit PE2 is found to contain nothing but true confession of 2nd 12 accused before PW6, I find the same corroborates her oral confession before PW5, the evidence which I find is sufficient and safe to convict her with the offence charged with. I now turn to consider 1st accused’s confession as deduced from his caution and extra-judicial statements exhibits PE4 and PE3 made before PW8 and PW7 respectively which as stated earlier on were admitted without his objection. In his defence (DW1) the 1st accused denied any involvement in the prosecution’s accusation against him that he killed the deceased Kaijage Odilo. He told the Court that, was arrested on 22/03/2021 at his home, where the septic tank/pit is located as he was a care taker of the premises. According to him, on that day one neighbour hinted him of the presence of police officers at the septic tank area since it was alleged that there was a body of human being found therein. He said, following that clue had to call his boss who was not living there and inform him of the presence of police officers in his premises who sent his young brother one Samwel before the two went closer to the said septic tank area where afande Rajabu asked as to was the care taker of the said area where he identified him. It was his testimony that, that is when he got arrested and joined with the 2nd accused whom he claimed to have met twice prior to that incident and knew her names for the first time when arraigned in court, before the two were taken to police after the septic tank was opened and the said human body removed therefrom by the fire 13 brigade team. At the police station he said, was interviewed and subjected to serious torture forcing him to admit responsibility over deceased death but he denied the accusations, before he succumbed to their demand by signing the papers which its contents were not known to him in order to save his life from the said torture. Generally he was retracting the confession allegedly made before PW8 vide exhibit PE4 and his participation in killing the deceased as testified by 2nd accused and further that, her was never searched at home. When cross-examined by the prosecution as to whether he had any grudges with PW3 for him to testify lies against him said none existed. And that apart from handcuffing him PW8 who recorded his statement never assaulted him as he never tendered any PF3 to exhibit his claims of being tortured. What is discerned from 1st accused’s defence is that he is trying to retract his confession allegedly made before PW8 in exhibit PE4 on the ground that it was obtained involuntarily. As alluded to above the legal stance is that, a confession or statement will be presumed to have been voluntarily made until when objection is made by the defence on the ground, that it was either not voluntarily made or not made at all. See the cases of Twaha Ali and 5 Others (supra), Paul Maduka and 4 Others (supra), Sulemani Hassani (supra) and Nyerere Nyague (supra). And that, if an accused intends to object to the admissibility of the said statement/confession, must do so before it is admitted and not during cross examination or during defence. See the case of Nyerere Nyague (supra). In this case since no objection was picked 14 by 1st accused against exhibit PE4 prior to its admission, on the strength of the above authorities I find his attempt to retract is during his defence on the ground that it was obtained under torture is a mere afterthought. Instead I find the same was obtained voluntarily. As to his confession in the extra- judicial statement exhibit PE3 made before PW7, since never denied or disclaimed it during his defence nor challenged it during its admission, it is the findings of this Court too that the same also was obtained voluntarily. Having so found next for consideration is whether that confessions by the 1st accused is sound enough to base his conviction on. To start with the confession as deduced from the caution statement exhibit PE4, I find the story therein to be detailed ranging from accused family background up to the time when he met the 2nd accused on 14/03/2021 in company of the deceased who requested him to kill the deceased in fulfilment of her demand for accepting his love proposal accepted as well as the promise to be paid Tshs. 1,000,000/ on the next day by 2nd accused aunt (ma mdogo) Mwasiti, before he executed the request. On how he executed the deceased he narrated that, together with the 2nd accused and deceased went up to his home where he collected a hammer, asked the deceased to put on a hat like a head mask before he hit him with a hammer on right side of the head the result of which he fell down and damped him in a septic tank/pit. After that he added, the 2nd accused thanked him and left the place with a promise to bring him money Tshs. 1,000,000/- from her aunt (ma mdogo) one Mwasiti but she never came 15 back until 22/03/2021 when she resurfaced at the septic tank in company of police officers who arrested him in connection with the deceased death in which he explained it to them. The same story was briefly narrated in the extra-judicial statement exhibit PE3 and is further corroborated with the Report on post mortem examination of the deceased on the parts of the body where the attack was directed disclosing that, the deceased sustained head injury on the right part of the head suggesting to be caused by blunt object, the fact which is confirming 1st accused’s version on the use of hammer to hit the deceased on the right part of the head. On the love proposal by the 1st accused to 2nd accused and her request to him to kill the deceased and how the killing was perpetrated by him, similar account was given by the 2nd accused person in her defence (DW2) the fact which leaves this Court without any scintilla of doubt that, 1st accused’s confessions in exhibits PE3 and PE4 is nothing but the truth hence this Court can safely rely on them to convict him and I so find. I so find after disagreeing with 1st accused’s defence that he did not commit that offence since such detailed account in his confession could not have come from the person who did not participate in the commission of an offence. Further his story in both PE3 and PE4, I believe could not have been concocted by PW7 and PW8 against him for not being in position to know details such as his family background the facts which he did not dispute. Even if the said confessions were retracted which is not the case herein still I could have taken the similar position as the settled law is that 16 the Court can convict on uncorroborated retracted confession which is found to be truthful and after warning itself of the danger of acting on it to convict. In reaching such conclusion, I find solace in the Court of Appeal decision in the cases of Hatibu Ghandhi and Others Vs. R (1996) TLR 12 and Mboje Mawe and 3 Others (supra). Further to that, the two confessions in exhibits PE3 and PE4 corroborate each other against it maker (1st accused) as it was the position in Mboje Mawe and 3 Others (supra). As regard to the 3rd accused the only available evidence connecting her with this murder accusation is that of co-accused in both 1st and 2nd accused persons’ confessions since she denied the accusations against her. As alluded to above it is in 2nd accused’s confession that she requested the 1st accused to kill the deceased in fulfilment of the latter’s love proposal and 3rd accused’s request on the promise to give her Tshs. 1,000,000/-. According to her evidence both during defence (DW2) and in her extra-judicial statement, the 2nd accused made it clear that, after executing the deceased she met the 3rd accused at their home and confirmed to her of the fulfilment of DW3’s will as agreed before the latter asked her to move to her home if she was afraid of remaining at PW1’s home. Her version earns corroboration from oral confession she made before PW5 when gave similar account mentioning the 3rd accused to have requested her to kill the deceased for consideration of money, the consideration which is confirmed by the 1st accused in his confession obtained in exhibit PE4 to be Tshs. 1,000,000 in which the 2nd 17 accused promise to bring him from Mwasiti but she never came back till when they were arrested. It is this Mwasiti whom the 2nd accused identified in court as 3rd accused. In her defence as alluded to above the 3rd accused denied participation in the planning of the killing of the deceased person. Her version was to the effect that, on the 14/03/2021 at about 20.00 hours received a phone call from one Amina who was a guest at PW1’s house informing her of the missing of the deceased before she decided to go there where she did not find the 2nd accused at home. And that, on inquiring from Amina as to the of 2nd accused’s whereabouts was informed that she had gone to search the said deceased and that is when she decided to inform PW1 by phone that the child was missing. And further that, when PW1 came home they continued searching for the deceased without success before she decided to go back home in which after three days was informed also of the missing of 2nd accused until when she was found on 22/03/2021 and taken to police. According to her, the deceased body could not be found until the day when it was found in the septic tank but could not go there to observe it though it was closer as she remained at PW1’s home mourning until 20.00 hours when the police officer one Rajabu came looking for ma mdogo where she identified herself to him, got arrested and taken to police. DW3 denied to have demanded or directed the 2nd accused person to kill the deceased. When cross examined by counsel for the 1st accused as to where was the 2nd accused when reported to PW1 of 18 the missing of the deceased said, she did not find her at home nor did she see her on the said night. On further cross examination by counsel for the Republic said, the 2nd accused had not yet returned home at the time when PW1 came back home and the time when she left for home. Having considered 3rd accused’s defence against prosecution’s evidence I disbelieve his story that, she was not aware of the deceased killing plan. I so do for two good reasons. One, after observing her demeanor when testifying during her defence, it was to this Court’s satisfaction that, she was not a truthful witness for being evasive to the questions put to her and taking longer to respond to the questions. Secondly, is her act of telling blatant lies in a situation she would not supposed to. For instance when claimed that, having reached at PW1’s house on the night of 14/03/2021, she did not find the 2nd accused at home as she had gone to search for the deceased contrary to what was stated by the 2nd accused in both exhibit PE2 and during her defence that the 3rd accused on the 14/03/2021 evening found her at home and she is the one who informed her first of the missing of deceased. The 3rd accused never cross-examined the 2nd accused to disown the fact that at that time she was at home and she (2nd accused) is not the one who informed her of the missing of Kaijage (deceased) before she passed the information to PW1. It is a legal stance that, failure to cross examine the opposite party on vital evidence is tantamount to admission of what is stated by her/him. See the cases of Nyerere Nyague Vs. R, Criminal Appeal No. 67 of 2010 (CAT- 19 unreported), Jaspini s/o Daniel @Sizakwe Vs. DPP, Criminal No. 519 of 2019 and Hatari Masharubu @Babu Ayubu Vs. R, Criminal appeal No. 590 of 2017[2021]TZCA 41 www.tanzlii.org/tz/judgment. In this matter one would ask an interesting question, if really she did not find or meet 2nd accused person at PW1’ home who was in company of the deceased on the evening of 14/03/2021 which is not the case, how did she confirm and concluded that the deceased was missing before passing the information to PW1, if at all she had no prior knowledge? Indeed there is no reasonable explanation on how that conclusion could have been reached without any prior knowledge by the 3rd accused that the deceased was already killed as informed by the 2nd accused. I therefore believe and conclude that, her version that she did not meet 2nd accused on that day until when she was arrested is a blatant lie as that saves as the true fact is that the two met on that day of 14/03/2021 evening and 3rd accused was briefed by the 2nd accused on the execution of their murder plan hence particeps criminis. In view of that finding, I hold her defence does not shake prosecution’s case in any way. Now the glaring issue is whether the 3rd accused’s conviction can be solely based on co-accused evidence of the 1st and 2nd accused. As the law stands in terms of section 33(2) of the Evidence Act [CAP. 6 R.E. 2022], it is unsafe to base conviction on uncorroborated co-accused evidence since the same 20 requires corroboration as a matter of prudence. Section 33(2) of the Evidence Act reads: - Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co-accused. I also find refuge in the above legal stance from decisions of the Court of Appeal in the cases of Pascal Kitigwa Vs. R (1994) TLR 65, Abubakari Issa @ Myambo Vs. R, Criminal Appeal No. 34 of 2010 (CAT-unreported), Julius Charles @ Sharobaro and 2 Others Vs. R, Criminal Appeal No. 167 of 2017 (CAT-unreported) and the recent one of Nuru Venevas and 2 Others Vs. R, Criminal Appeal No. 431 of 2021 (CAT) Tanzlii, where the Court of Appeal held that, as a matter of prudence co-accused must be corroborated for the same to be safely relied on to base conviction on the incriminated party. It is trite law that, corroboration may as well come from word or conduct as it was held by the Court of Appeal in the cases of Pascal Kitigwa (supra) and Mboje Mawe and 3 Others (supra) where the Court observed that, corroborative evidence may be circumstantial and may as well come from the words or conduct of the accused. In this case as found above the 3rd accused’s act of telling blatant lie that she did not meet the 2nd accused on the 14/03/2021 and briefed on the execution of murder plan as agreed by the 2nd accused and that she did not go to the septic tank/pit area to confirm deceased death soon after the report from the 2nd accused while in fact she 21 did as per 2nd accused version, I find corroborate the co-accused evidence against her proving that she was aware of what happened after planning execution of the said murder and I so find. In view of the above this Court is satisfied that, all three accused persons are responsible for the deceased death and it is so found. Thus the 2nd issue or ingredient is answered in affirmative. Lastly is the third ingredient as to whether the killing of Kaijage Odilo was actuated with malice aforethought. Section 200 of the Penal Code, [Cap. 16 R.E 2022] illustrates on what amounts to malice aforethought including accused’s intention to cause death or grievous harm to a person whether such person is dead or not. The 3rd accused’s act of planning to kill Kaijage Odilo and further manifest her intention by directing the 2nd accused to kill him for consideration of money who also sought assistance from the 1st accused, coupled with the 1st accused’s act on using hammer to hit the deceased on the head in fulfilment of both 2nd and 3rd accused’s demand and damp his body in the septic tank before its retrieval on 22/03/2021 and the fact that the trio were full aware that their plan would claim life (cause death) of the said child or cause him grievous harm, I find is conclusive evidence and proof that, they so killed him with malice aforethought. Thus the 3rd ingredient is proved also beyond reasonable doubt by the prosecution. The three ingredient having been established, I find the prosecution to have proved the charge beyond reasonable doubt against all accused persons 22 hence proceed to find them guilty of the offence Murder charged with. I therefore convict them with the offence of Murder, contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E 2019] as charged. It is so ordered. Dated at Dodoma this 19th day of July, 2024. E. E. KAKOLAKI JUGDE 19/07/2024. SENTENCE The accused persons have been convicted of the offence of murder as charged. The law is settled that, once the accused person is found guilty and convicted of Murder, the only prescribed sentence is death by hanging. In this matter since all accused persons have been convicted with the offence of Murder, I hereby sentence James Makuri Gotono and Mwasiti Abdallah Amasi to suffer death by hanging as provided under sections 197 of the Penal Code, [Cap. 16 R.E 2019]. As for Sabrina Hamisi Bakari who is the child and was 13 years old when committing the offence in terms of section 26(2) of the Penal Code, [Cap. 16 R.E 2019], I commit her to prison to be detained there under president’s pressure. It is so ordered. 23 E. E. KAKOLAKI JUGDE 19/07/2024. Court: The Judgment has been delivered at Dodoma via video conference today on 19th day of July, 2024, in the presence of all accused in person and their advocate Mr. Rashid Hamis Advocate holding brief for advocate Cosmas Luambano, for the 1st accused, Mr. Peter Ndimbo, Advocate for the 2nd accused, Mr. Jackson Mayeka, Advocate for the 3rd accused, Mr. Hussein Mkeni, State Attorney for the Republic, all appearing from Singida and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 19/07/2024. 24