BONIPHACE BRYSON BISEKO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL SESSION CASE NO 3506 OF 2024 THE REPUBLIC VERSUS BONIPHACE BRYSON @ BISEKO JUDGEMENT OF THE COURT 28/06/2024 & 15/07/2024 Kafanabo, J.: The accused herein, Boniphace Bryson@ Biseko, stands charged with one count of the offence of murder of his father, Mr. Bryson Biseko Muyenjwa, contrary to sections 196 and 197 of the Penal Code, Cap. 16 R. E. 2022. The court was satisfied that the notice of the information for the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2022 was duly served on the accused. The Court was also satisfied that the accused understood the Kiswahili language and thus the information was read over to the accused in the Kiswahili language. The accused pleaded not guilty to the information for murder and thus full trial, in that regard, was unavoidable. At the hearing the Republic was represented by Messrs. Adolf Kissima and Zalubaberi Ngowi, learned State Attorneys. The accused was represented by Mr. Amos Wilson, a learned Advocate. i A brief background of the matter is that Boniphace Bryson Biseko is accused of murdering his father, Mr Bryson Biseko Muyenjwa (hereinafter the 'deceased/father'). It is alleged that on 02/07/2023 the accused pounded his father, the deceased, on the neck and the stomach by using a wooden pestle/crusher which was being used to pound dried cassava pellets/chips, commonly known as 'Udaga' in the Mara Region. It is alleged that the said hammering of the deceased by the accused herein is the one which caused the death of the deceased. In a bid to prove that the accused is responsible for the commission of the offence of murder against the deceased, the Republic marshalled five (5) witnesses and two exhibits. The five witnesses who testified before the court were Kulwijila Brayson, younger brother of the accused who testified as PWl, MG 451098 Sixtus A. Pamba, a paramilitary/militia, who testified as PW2. Another witness was Diana Biseko, aunt of the accused and sister of the deceased, who testified as PW3, and Happiness Nashon Ndalilolanye, a clinical officer, who testified as PW4. The last Republic's witness was F. 8920 D/SGT Mbijima, who testified as PW5. The Republic also tendered two exhibits namely the postmortem examination report which was admitted as exhibit 'Pl' and a sketch map of the scene of the crime admitted as exhibit 'P2'. The prosecution's case was opened by the testimony Mr. Kulwijila Brayson, PWl, younger brother of the accused. He testified that he lives at Mugara Village, in the Bunda District, and in 2023 he was living with his 2 mother, Enacia Mugurusi, his father Bryson Biseko, his aunt Diana Biseko, and his brother Boniphace Bryson Biseko, who is the accused herein. PWl testified further that his father died on 02/07/2023. On that day he was at home and in the night, and at around 10.00 p.m., his father was attacked and thrashed by his brother, the accused. It was narrated that, when PWl was inside the house he heard an uproar, a person screaming for help outside the house he was sleeping in, he went out to see what was happening. When outside the house, he found that his brother, Boniphace Bryson Biseko (hereinafter referred to as 'Boniphace' or the 'accused'), was thrashing their father. PWl managed to recognize his brother because at their home there was an electric security bulb with a strong light, the bulb was at the front part of the house, at the door of the house. He explained that when he stepped outside, the distance between him and Boniphace was one metre and the distance between the electric light/bulb and the place where the incident was taking place was also one metre. It was further testified by PWl that he saw his father being hammered or pounded by the said Boniphace on the neck and the stomach by a wooden pestle/crusher which was used to pound 'udaga'(the dried cassava pellets/chips), it was like a paddle, club, or bat. Then he raised a hue and cry (he screamed) seeking help. Within a short time, many people gathered at the incident to offer help, but upon their arrival, his father was lying down discharging froth/foam from his mouth, the people who gathered at their home debated on PWl's father’s condition, on whether he was alive or dead. Upon checking his body, it seemed to be cold, then PWl 3 made a call to a local militia (a paramilitary) who came and arrested Boniphace who was right there at home, as he did not flee. It was also clear from the testimony of PWl that a militia came from a nearby place, to their home where the incident took place. The said militia arrested Boniphace and took him to the Kibara Police Station. On 03/07/2023 a medical doctor together with the police officers came to examine the body of the deceased. After examination, the doctor said that PWl's father's neck was broken. Moreover, it was testified by PWl that on 04/07/2023 the investigation team of the police came and asked him to assist them in finding the wooden pestle/crusher which was used to attack the deceased, but they could not find it. PWl also managed to identify the accused at the dock as Boniphace Bryson Biseko and he is the one who attacked and pounded their father on 02/07/2023. In cross-examination by Mr Wilson, learned advocate, PWl explained that at their home there are two houses, and all the houses belonged to their deceased father. Boniphace and PWl were sleeping in one of the houses. There was one electric bulb/light which was at the door where the incident took place, the door was facing westwards, where the sun sets. He reiterated that he witnessed the incident, he saw his brother Boniphace pounding/hammering their father with the pestle used to pound cassava pellets. The incident took place near the door of the house where they usually slept, the incident took place very close to the door, approximately two walking steps from the door of the house. The distance between the 4 place where the incident took place to the door is approximately one metre. The bulb was an electric light, which he bought himself as they were allowed to buy the bulbs for the house, it was not necessarily for their father to buy the same all the time. It was also laid bare that the house in which their father was killed is the one in which Boniphace and he were sleeping. He also testified that the distance between the house used by their father, and the one they were sleeping in, was approximately ten walking steps. When he heard the hue and cry/scream, he was already asleep, but it took him less than a minute to wake up and go outside, it was quick because he usually sleeps with clothes on. He did not know the problem between the accused and their father, but there were frequent wrangles between them before the fateful day. On that day his father came home at 06.00 p.m. from 'madukani' (village centre) because it was the place he usually visits. His father used to drink a local brew, but on the day of the incident, the deceased was not drunk. PWl testified that he knew the deceased was not drunk because he lived with the deceased and thus he knew when he was drunk or otherwise. PWl also testified that the club/pestle which was used to pound the deceased was reasonably huge (showing the size of the upper part of the wooden frame surrounding the court's witness box (the dock). He was thrashed by Boniphace on the neck and stomach, but no obvious/external injuries were seen. The deceased fell down and was discharging foam from his mouth, he explained that he did not know the reason why he discharged the said foam since he was not a medic, but associated the 5 same with the pounding by the accused. PWl also stated that the squabbles between their father and the accused were usually initiated by the accused. PW2 was MG 451098 Sixtus A. Pamba, a paramilitary at Mugira Village, in Bunda District. His duties included ensuring the safety of the people and their properties in the village, generally preventing criminal conduct and reporting crimes to the relevant authorities. He testified that on 02/07/2023 when at his home; he was called by Mr. Kulwijila Bryson Biseko(PWl) who informed him that he should go to their home because Boniphace had attacked and beaten their father. Then he told PWl to find transport because it was raining, then PWl followed him with a motorcycle, on their way to PWl's home, they heard people crying and PWl told him that their father would be dead. Upon arrival he went to where PWl's father was lying down, he saw him discharging foam from the mouth. Then he asked people who had gathered there, who was responsible for what happened to the deceased they named and showed him the accused, Boniphace Bryson, who was surrounded by people as he was sitting on the bricks nearby, from where the body of the deceased was lying. Then he called Boniphace by his name who responded, and PW2 told him that he was required at the Kibara police station, then he arrested and handcuffed Boniphace. He took him to the police station, upon arrival at the police station he handed over Boniphace to the police officer on duty. Then he went back to his home. The witness also testified to recognize the Boniphace and he positively identified the accused at the dock by touching him. 6 In cross-examination PW2 testified that he arrested Boniphace at the crime scene, he did not tell him anything on their way to the police station. When he arrived at the crime scene he found the one who was reported assaulted was, then, dead, and was told that the accused was the one who pounded the deceased by using a pounder/pestle of pounding of 'Udaga'. The pounder was not there when he arrived, but the accused was at the scene of the crime surrounded by the vigilantes. PW3 was Diana Bisseko, the aunt of the accused. She testified that in 2023 she was living at his brother's (deceased's) home in Mugara Village, at that home, she was living with his brother Bryson Biseko (now deceased), Kulwijila Bryson Biseko and Boniphace Bryson Biseko who are his brother's sons. On 02/07/2023 in the night, at 10.00 p.m., she was at home sleeping, when she heard a scream/hue from outside, she went out to see what was happening and found that Boniphace was thrashing his father, she saw him because there was light of electric bulb. He was pounding him on the neck, and she raised a hue for help and villagers gathered. The militia called Sixtus was called and upon arrival, he took Boniphace to the police station. Before she heard the noise, and before the incident occurred, there were Kulwijila Bryson Biseko and Boniphace Bryson Biseko inside the house in front of which the incident occurred. Thereafter, the next day, the police officers and the medical doctor came for an examination of the body. She testified further that Boniphace calls her aunt and she could identify Boniphace if she meets him. The witness identified the accused as Boniphace Bryson Biseko by touching him in the dock. 7 When cross-examined by Mr Wilson, Advocate for the accused, PW3 testified that she gave her statement to the police on 03/07/2023, and she could identify the statement which she gave to the police. PW3 identified the statement which she gave to the police as hers and the same was admitted as exhibit 'Dl' under section 164(l)(c) of the Evidence Act, Cap. 6. R.E. 2019, for purposes of impeaching the credibility of PW3. In further examination, PW3 testified that when she went out she found that her brother, the deceased, was complaining that he was hit on the stomach by Boniphace. She readily admitted that her explanation given in court contradicts the statement she wrote before a police officer because on the day she wrote a statement (on 03/07/2023) she was not okay, given the nature of the incident she witnessed and which had occurred earlier. She was confused on those days (2nd and 3rd of July 2023). But she did not go mad or crazy, it was the nature of the incident which made her disorderly and/or confused, and she did not feel okay. PW4 was Happiness Nashon Ndalilolanye, a Clinical Officer, from the Kasahunga Health Centre. She testified that she has the experience of more than five years at work, and her daily duties are to attend to patients, conduct diagnoses for various medical issues, and conduct medical examinations, surgery and postmortem examinations. She (PW4) testified further that she works at the OPD Department at the said health centre. On 03/07/2023 she was at her workplace on daily routines, then police officers came and requested a doctor to go and conduct a postmortem examination. The police officers and PW4 went to 8 Iramba Village, in Mugara Ward. Upon arrival, they were shown a body which was lying on the verge of the house. The person who showed them the body was Kulwijila and he identified the body as that of Bryson Bisseko. The body was lying face up, covered with a bedsheet but with no visible injuries. She conducted a preliminary examination to know if the body of Mr Bryson Biseko was alive but confirmed that the body was lifeless. That was so because the heart had stopped beating and the body was cold. After further investigation, they realized that the cause of death was a hypovolemic shock, caused by massive internal bleeding due to the broken/fractured neck. Thereafter, PW4 prepared a postmortem report. The Report on Postmortem Examination of the body of Bryson Biseko dated 03/07/2023, and prepared PW4 was admitted as exhibit "Pl'. In cross-examination, PW4 testified that if the postmortem examination is conducted by someone who does not gualify, it becomes void and the court may disregard it. It was further testified that when conducting the postmortem examination on the body of the deceased, she used medical examination gloves, a stethoscope (for heartbeat), pulsometer (for oxygen). She also detected the internal massive bleeding evidenced by under skin internal bleeding on the neck of the deceased which was broken. She testified that there is no specific instrument for detecting under-skin internal bleeding. Also, massive internal bleeding was indicated in the report. She further testified that the issue of history was indicated in the report, it was according to the medical examination she conducted and what she was told at the scene of the incident. 9 PW5 was F.8920 D/SGT Mbijima, a police officer working at Bunda police station with an experience of more than 10 years. He testified that on 04/07/2023 he was at Bunda police station on his daily duties and was assigned to work on a file by the OCCID. He interrogated the accused by using a caution statement and he wrote statements of various other witnesses. He then went to the scene of the crime, examined the scene and drew a sketch map led and assisted by Kulwijila Bryson. He discovered that at the crime scene, there was evidence of brawls and drags, so he drew a sketch map. He also learned that the accused was responsible for the commission of the offence by using a pestle/crusher used to pound 'Udaga'. The pounder could not be found. The sketch map of the crime scene positively identified by PW5 dated 04/07/2023 was admitted as exhibit P2. In cross-examination, PW5 testified that before he went to the scene of the crime, he wrote the statements of the witnesses, and when he went to the crime scene, the same indicated that there were brawls. However, he did not see the wooden pestle/ponder but he knew that the 'udaga' pounder was used to commit the offence through various witness statements he wrote. He also saw the electric light/bulb on the wall of the house near the crime scene. He testified that on the sketch map, there is no bulb which is indicated because the sketch map does not show everything. PW5 further explained that the bulb/electric light was on the house at which the deceased was hammered and fell. The deceased was beaten and fell at house B as indicated on the map, the distance between the houses 10 was irrelevant in the investigation because the focal point was where the body was and the scene of the crime. Upon closure of the Republic's case, the court revisited the evidence on record and was satisfied that a primafacie case against the accused was established and thus ruled that the accused had a case to answer. The accused, who was duly represented by Mr Amos Wilson, Advocate was addressed in terms of sections 293 and 294 of the Criminal Procedure Act, Cap. 20 R.E. 2022. The accused opted to defend himself under oath with no exhibit to tender. The accused, Boniphace Bryson Biseko, testified as DWl in his defence. He began his testimony with a statement that he would address two matters; first the development of their family/home and the development of their village in general. As regards their family/home development, DWl testified that PWl and PW3 who testified in court for the Republic are his relatives and thus they want to keep the properties at their home for themselves when he is in remand and that is why they testified against him. Second, as regards the development of their village there is no good infrastructure, there is no security, and conflicts arise several times as that between him and his father. Those may have contributed to the death of their father. DWl testified further that the police officer used his younger brother against him. He said that his younger brother is still young, he does not have a house and his aunt does not have the house too. He denied having beaten his father to death, and he did not know what caused the death of ii his father because others had already testified. He left his father sitting at the door and people came and found him there. In cross-examination by Mr Kissima, learned State Attorney, DWI testified that he was studying teaching but did not finish. His father and his aunt, Diana Biseko were paying for his education, and his aunt Diana and his father loved him and there were no quarrels between them. Kulwijila Bryson is his younger brother, and there were no quarrels between them as well. He testified that he heard his younger brother and his aunt testifying, but what they said had already been planned earlier. He had never hated his father, but the problems of the village might have caused other people to participate in the killing of his father. Other witnesses may testify otherwise because even the issue of vomiting by the deceased has not been addressed, no one asked who served the food to his father which he vomited. After the closure of the defence case, parties prayed to sum up their cases. The prayer was granted and thus the parties addressed the court orally. In terms of section 294(2) of the Criminal Procedure Act (supra) the defence commenced to sum up their case. Mr Wilson, the defence counsel, submitted that in the criminal proceedings, it is the law that the Republic should prove the charges levelled against the accused beyond a reasonable doubt, and the court does not determine the guilt of the accused based on the weakness of the defence case. Moreover, in prosecution evidence there are doubts as follows: 12 I First was that the electric bulb was used by PWl to identify the incident and the accused. PWl said that the bulb was at the door of the house in which they live which is house C as per exhibit P2. PW5 explained that the bulb was in the house marked as B. Therefore, it is not clear where was the light fixed. Therefore, the identification of the accused and the incident becomes a problem and thus raises doubt. Second, the crusher/pestle was used to pound the deceased on the neck and in the stomach. However, according to PW4, there was no visible injury or bruise on the neck or stomach of the accused. Third, the crusher/pestle used to pound the deceased was never recovered, there was no explanation as to its whereabouts. Fourth is that the cause of death of the deceased is confirmed by a medical doctor. PW4 testified on how he detected the internal massive bleeding but did not write the same in the postmortem report. She relied on history explained to her by other people and thus she did not do her job properly. The fifth doubt explained by the defence was that in murder cases, malice aforethought may be established by a number of blows inflicted on the victim. No evidence was produced to that effect by the Republic. Also, the conduct of the accused before and after the commission of the offence did not indicate malice aforethought as there was no evidence in that respect. It was argued that no evidence to establish malice aforethought was adduced. 13 Lastly, the defence argued that the prosecution did not establish the case beyond a reasonable doubt. On the part of the Republic, Mr Kissima submitted that the offence of Murder was proved beyond reasonable doubt. Evidence of who killed the deceased is very clear. Evidence of PWl is clear that he saw the accused assaulting the deceased on the neck and stomach. He also identified the accused with the help of the security light which was one metre from where he was. There are court of appeal decisions on visual identification including Waziri Amani vs Republic (Criminal Appeal 55 of 1979) [1980] TZCA 23 case and the Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78. The tests have been explained for visual identification including distance, type of light and prior knowledge of the accused. The witness also explained that the bulb/ security light was on house B and not C as alleged by the defence. Who committed the offence is clear from the testimony of PWl and PW3. Also as regards the inconsistency of testimony of PW3 and the statement she gave before a police officer, it was the submission of the learned State Attorney that there was no insignificant inconsistency. Also According to the case Abel Orua @ Matiku 8i Others vs Republic (supra) the witness may explain more of what was explained to the police because what the witness explains to the police is limited to the questions the witness is asked. 14 As regards the unrecovered pestle/pounder, it was submitted that it is important to note that at the scene of the crime, there were many people, it is not known who took the pounder. It is also not in dispute that Bryson Biseko is dead and the one who attacked and hammered him was the accused. It was further submitted that PW4 also explained why bruises or injuries did not occur on the neck. Those are matters of experts, the expert was called and testified, but such issues were not paused to the witness by the defence counsel. The issue of malice aforethought was established by the parts of the body attacked by the accused. Moreover, the learned state attorney submitted that it was established by PWl, PW3 and DWl that there was no quarrel between the accused and the witnesses, therefore their evidence is credible. It was also submitted that it is the position of the law that there should be evidence of death, which was established by PW4. So, it was submitted that the cause of death was proven. The prosecution also submitted that the contradiction of PWl and PW5 is minor and healthy, citing the case of Metwii Pusindawa Lasilasi vs Republic (Criminal Appeal No. 431 of 2020) [2024] TZCA 139 (23 February 2024). The contradiction between witnesses cannot be avoided and they are healthy because they show that the witnesses were not rehearsed. 15 Now therefore, after hearing all the witnesses and final submissions of the parties, it is for this court to analyse the evidence and resolve the alleged murder of the then Mr. Bryson Biseko. In determining the commission of the offence this court is guided by the provisions of section 196 of the Penal Code Cap. 16 R.E. 2022. The said section provides that: 'Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty ofmurder.' In determining and resolving the said murder, and in light of the above provision, three questions would need to be answered. One, whether the said Bryson Biseko is dead and what was the cause of his death, that is whether natural or unnatural. Two would be if he died unnaturally, how did he die or what caused his death? Three is whether the killer, if any, killed Bryson Biseko with malice aforethought. The first issue or question is whether the said Bryson Biseko is dead and what was the cause of his death, that is whether natural or unnatural, will not encumber this court. This is because the evidence on record and summarized herein above is explicit. PW4, a Clinical Officer unmistakably testified that she examined the body of the deceased that was identified to her, by the relative of the deceased by the name of Kulwijila and other persons present on that day, that the body was that of Mr Bryson Biseko. It was further proved that the death of Mr Bryson Biseko was unnatural. The testimony of PW4 was direct and clear that the death of Mr 16 Bryson Biseko was caused by internal massive bleeding because of the fractured neck. The evidence of PW4 was supported by exhibit Pl, a postmortem report she prepared, which was read and explained before this court. PW4's evidence was corroborated by evidence from PWl and PW3 who saw the deceased being thrashed on the neck and stomach by a pestle or pounder of cassava pellets. Therefore, this court does not find any doubt on the kind of death Mr Bryson Biseko died. The first question is answered in the affirmative that Mr Bryson Biseko is dead and died an unnatural death. This means that Bryson Biseko was killed. It follows that the doubts advanced by Mr Wilson, the defence counsel, on the cause of death citing the absence of external visible injury, non-recovery of the pestle/pounder and indication of history on the postmortem report by PW4, could not outweigh the credibility of the evidence of PW4 which was also corroborated by the testimony of other witnesses. The first question is resolved, and this court is invited to determine the second question. Since the finding of the court is that Mr Bryson Biseko died unnaturally, then how did he die or who killed him? Again, in the light of the evidence on record, this question is also not difficult to answer. According to the evidence of PWl, at 10.00 p.m. on 02/07/2023, he saw his brother, Boniphace Bryson Biseko, with whom they were living and sleeping in the same house pounding their father with a pestle or a pounder used to smash cassava pellets ('udaga' as commonly known in the 17 Mara Region). The deceased was pounded on the neck and the stomach, and PWl managed to identify his brother because at their home there was a security electric bulb with strong light. He also testified that the distance between him and where his brother was pounding his father was just one metre or two walking steps. It was also his testimony that the bulb was at the door which was also one metre away from the point where his father was being pounded by the accused herein. Further, it is on record that the accused did not run away from the crime scene, he just sat on the bricks nearby until the vigilantes gathered, and later he was arrested by PW2 and taken to the Police station. The evidence of PW2 also supports PWl's testimony that it was PWl who called PW2 to rush to the crime scene and was informed by PWl at the earliest that Boniphace had thrashed his father. PW2 was called because he was a local militia whose duty was to ensure people's safety in the village. PW2 responded and upon arrival, he found the accused already surrounded by persons who responded to the hues/screams raised by PWl and PW3. It follows that PWl informing PW2 at the earliest opportunity, added credit to PWl's testimony because of his consistency in what he saw. See the cases of Frank Joseph @ Sengerema vs Republic (Criminal Appeal No. 378 of 2015) [2016] TZCA 216 and Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78. PW3's testimony in court was that he saw the accused pounding the deceased on the neck and stomach. However, in her statement recorded at the Police station, which was admitted as exhibit Dl, she stated that when 18 she stepped out of the house after hearing his brother screaming outside, she found his brother (the deceased) lying down complaining that he was kicked by Boniphace Biseko on the stomach. Although PW2 was inconsistent on what she saw, she explained that she wrote the statement on the day whilst feeling bad/unwell or confused because of what her nephew (Boniphace) did to her brother the situation was the same on 02/07/2023 and 03/07/2023. Therefore, this court find that the explanation is reasonable because the deceased and her were blood relatives. Moreover, the said inconsistency did not shift the blame or responsibility of committing the offence to another person, it is Boniphace who was mentioned by the deceased to PW3 when she was inguiring about what happened. It is therefore safe to conclude that the PW3's inconsistency did not go to the root of the matter, and it neither exonerated the accused nor cast doubt on the Republic's case as argued by the defence counsel. The case of Matera Simango @ Masana vs Republic (Criminal Appeal 517 of 2019) [2021] TZCA 621 (29 October 2021) is relevant. It is a view of this court that, be it as it may, the testimony of PWl was watertight on what he saw and the identification of the accused because there was sufficient light. This is arrived at cautiously bearing in mind the challenges of visual identification, and that, in our jurisdiction, it is settled that visual identification is one of the weakest. In the case of Waziri Amani vs Republic (Criminal Appeal 55 of 1979) [1980] TZCA 23 (6 May 1980): the Court of Appeal observed: 19 "Evidence of visuat identification is not oniy of the weakest kind, but it is aiso most unreiiabie and a court shouid not act on it uniess aii possibiiities of mistaken identity are eiiminated and it is satisfied that the evidence before it is absoiuteiy watertight".' Moreover, on the issue of identification in general, in the case Frank Joseph @ Sengerema vs Republic (Criminal Appeal No. 378 of 2015) [2016] TZCA 216 (25 April 2016) the Court of Appeal referred the case of Waziri Amani (supra) and observed that: "In that case the Court iaid down some guideiines which are to be foiiowed in order to estabiish whether or not identification evidence is watertight. The foiiowing factors must be estabiished: (i) The time the witness had the accused under observation. (ii) The distance at which he observed him. (iii) The conditions in which such observation occurred, for instance, whether it was day or night time. Whether there was good or poor iighting at the scene. (iv) Whether the witness knew or had seen the accused before or not." Moreover, in the present case identification of the accused by recognition by PWl, his younger brother is momentous. In the case of Frank Joseph @ Sengerema vs Republic (supra) the Court of Appeal had this to say on evidence of recognition: 20 "Evidence of recognition has been taken to be more reiiabie than that of identification. Notwithstanding that position, we are mindfui of the requirement that care must be taken before any court acts on that kind of evidence. In Shamir s/o John v The Repubtic, Criminai Appeai No. 166 of2004 (unreported) the Court observed as foiiows: - "...recognition may be more reiiabie than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the Court shouid aiways be aware that mistakes in recognition of those reiatives and friends are sometimes made." Also in the case of Abel Orua @ Matiku & Others vs Republic (supra), the issue of recognition of the accused based on the fact that he was known to the witness before the incident was accepted to be sufficient. In the present case, in addition to the fact that there was strong light from the electric light at/over the door of the house in front of which the incident occurred, it is on record that PWl and the accused are siblings living in the same house and thus the accused was easily recognized by his younger brother, PWl. Besides, the accused never left the premises of their home where the crime scene was located, he just sat near the crime scene until he was surrounded by the vigilantes. The accused in his defence denied killing his father but blamed the issue of personal, family and village development as might have caused or contributed to the death of his father. He blamed his relatives including PWl and PW3 as part of the plan that he should be remanded so that they 21 could enjoy family properties on their own given that they do not have houses of their own. He, however, admitted that there was no quarrel between him and them and that they had loved each other. After due consideration of the accused's defence, this court considers the said defence to be a sham and did not, in any manner whatsoever, cast doubt in the Republic's case. Instead, there is overwhelming evidence that the accused attacked and pounded the deceased. There is also no doubt that the offence was committed in front of the house in which PWl and the accused were living. Thus, with respect, this court differs from the submission of the defence counsel in that it was not clear at which house the offence was committed. In light of the above, it is a finding of this court that the accused, Boniphace Bryson Biseko, is the one who attacked and killed Bryson Biseko, the deceased. Upon finding that Boniphace Bryson Biseko is the one who killed Bryson Biseko, this court is now called to determine whether the accused killed Bryson Biseko with malice aforethought. The law on malice aforethought is provided for under section 200 of the Penal Code (supra). It provides for circumstances under which malice aforethought may be inferred, the relevant section reads: "Matice aforethought sha/i be deemed to be estabHshed by evidence proving any one or more of the foiiowing circumstances- 22 (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actuaiiy kilied or not; (b) knowiedge that the act or omission causing death wiii probabiy cause the death of or grievous harm to some person, whether that person is the person actuaiiy kiiied or not, aithough that knowiedge is accompanied by indifference whether death or grievous bodiiy harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishabie with a penaity which is graver than imprisonment for three years; (d) an intention by the act or omission to faciiitate the fiight or escape from custody of any person who has committed or attempted to commit an offence." The issue of malice aforethought is also not being trodden upon for the first time by this court, there are several case laws which have sufficiently expounded the whole concept of malice aforethought in murder cases. In the case of Charles Bode vs Republic (Criminal Appeal No 46 of 2016) [2019] TZCA 578 (6 March 2019) the Court of Appeal of Tanzania observed that: "The decision of the Court in the case of Enock Kipeia vs Repubiic, Criminal Appeai no. 150 of .1994 (unreported), is very instructive when it comes to the question of ascertaining as to whether the kiiiing committed by the appeiiant was done with ma/ice aforethought or not. It was heid thus: 23 ".... usually an attacker will not dedare his intention to cause death or grievous bodiiy harm. Whether or not he had the intention must be ascertained from various factors, inciuding the foiiowing: i. The type and size of the weapon which was used in the attack ieading to the death ofthe deceased; ii. The amount of force which was used by the attacker in assauiting the deceased; iii. The part or parts of the body of the deceased where the biows of the attacker were directed at or infiicted; iv. The number of biows which were made by the attacker, aithough one biow may be enough depending on the nature and circumstances of each particuiar case; v. The kind of injuries infiicted on the deceased's body; vi. The utterances made by the attacker if any, during, before or after the attack; vii. The conduct of the attacker before or after the incident ofattack." This court having jogged its memory on the tests of malice aforethought, now proceeds to apply the same under the circumstances of this case. In the light of the evidence on record, the following matters are worth noting: one, the accused was seen thrashing the deceased on the neck and the stomach; two, PWl who witnessed the incident came out to witness the trashing of the deceased after hearing a hue/scream which means the attack began before his arrival and this means that the blows were several. Three, in the light of the testimony of PW4 and exhibit Pl, a postmortem report, which indicates internal massive bleeding due to a neck fracture, it is clear that the blows on the neck of the deceased were 24 massive and strong. This means that great force was applied when assaulting the deceased. Four, the weapon used, a pestle/crusher of cassava pellets which converts the same into flour, though blunt, is a dangerous pounder if it is applied strongly on vulnerable parts of the body. In the present case, the accused chose to pound the deceased's stomach which contains vital organs and the neck until it fractured. Five, in the light of exhibit P1 none of the other parts of the body were attacked and broken, that is neither legs nor arms were targeted. This means that the accused was targeting specific parts of the body including the neck maliciously. It follows that the first to fifth factors/tests to be considered in establishing an intention to cause death or grievous bodily harm have been met in the present case. In light of the above, it is clear to this court that the accused trashed his father, Mr. Bryson Biseko Muyenjwa, to cause his death, or to do grievous harm to his body. Mr Bryson Biseko Muyenjwa eventually died from internal massive bleeding due to a neck fracture being severe injury caused by the accused when pounding him with the crusher of cassava pellets. Therefore, it is a finding of this court that the accused killed his father, Mr Bryson Biseko Muyenjwa, with malice aforethought. In the final analysis, this court finds that the Republic has proved her case beyond a reasonable doubt as per the requirement of section 3(2)(a) of the Evidence Act, Cap. 6 R.E. 2019 that the accused murdered 25 Bryson Biseko Muyenjwa. This is because, as demonstrated hereinabove, the ingredients of the offence of murder according to section 196 of the Penal Code (supra) have been duly established. Moreover, the facts establishing the ingredients of the said offence also incriminate the accused as the person who committed the offence of murder against Mr Bryson Biseko Muyenjwa. Therefore, it is a finding of this court that the accused, Boniphace Bryson Biseko, is guilty of the murder of his father, Bryson Biseko Muyenjwa, contrary to sections 196 and 197 of the Penal Code, Cap. 16. R.E. 2022. It is so ordered. The right of appeal explained. -k> K. I. Kafanabo Judge 15/07/2024 The judgment was delivered in open court in the presence of Mr. Adolf Kissima and Jonas Kivuyo, State Attorneys, for the Republic, in the presence of Mr. Amos Wilson learned Advocate for the accused and in the presence of Boniphace Bryson Biseko, the accused. Judge 15/07/2024 ANTECEDENTS Mr. Adolf Kisima, State Attorney: The Republic has no previous criminal record of the accused, but it is the prayer of the prosecution that 26 deserving punishment be imposed on the accused according to section 197 of the Penal Code, Cap. 16. R.E. 2022. MITIGATION Mr Amos Wilson, Advocate: Since the accused has been found guilty of murder, the punishment for the offence is only one, may the court be pleased to punish the accused according to the law. K. I Kafanabo Judge 15/07/2024 SENTENCE Today the 15th day of July 2024 the accused/convict, Boniphace Bryson Biseko, has been found guilty of the murder of Bryson Biseko Muyenjwa. It follows that sentencing and imposing an appropriate sentence when the accused is found guilty of murder is provided for under section 197 of the Penal Code Cap. 16 R.E. 2022 which provides that: "4 person convicted of murder shall be sentenced to death." In light of the above provision, and considering the mitigation of the accused, the hands of this court are tied. The above section providing for punishment of murder was legislated in mandatory terms, and this court has no option but to adhere to and implement the letter of the law. Moreover, the said section 197 of the Penal Code is read together with section 322 of the Criminal Procedure Act, Cap. 20 R.E. 2022 which provides that: 27 "(1) Where any person is sentenced to death, he shall suffer death by hanging. (2) Where any person is sentenced to death the sentence shall direct that he suffers death by hanging." Therefore, in light of the foregoing, Boniphace Bryson Biseko, being a convict of the murder of Bryson Biseko Muyenjwa, is hereby sentenced to death and shalLsuffer death by hanging. It is so orae K. I Kafanabo V Judge 15/07/2024 This sentencing order was delivered in the open court in the presence of Mr. Adolf Kissima and Jonas Kivuyo, State Attorneys for the Republic, in the presence of Mr. Amos Wilson Advocate for the accused and in the presence of Boniphace Bryson Biseko, the accused. K. I. Kafanabo Judge 15/07/2024 Court: Right of Appeal explained. K. I. Kafanabo Judge 15/07/2024