R Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT SINGIDA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 39 OF 2023 THE REPUBLIC VERSUS SAMWEL JOHN @ ISINGO..….….……………………………...……………..ACCUSED JUDGMENT Date of last Order: 04th July, 2024. Date of Judgment: 26th July, 2024. E.E. KAKOLAKI, J. On the 15th day of November, 2022 at about 00.00 hours, a house of Matheo Joseph Isingo (deceased) and Dafroza Ephrahim (PW4), who were husband and wife and residents of Sakaa Village, Misughaa Ward and Mungaa Division within Ikungi District and Singida Region, was stormed in by an attacker (a man) in possession of a machete and piece of iron bar (nondo) who attacked them with machete on different parts of their heads while asleep in their bedroom. To save their lives PW4 and their daughter Veronica Matheo Joseph (PW3) who were in the said house, raised an alarm for help the result of which neighbours responded the first one being Venatus Joseph Isingo (PW5) who managed to rush the victims to Makiungu Hospital in the same night after reporting to the Police Station and issued with PF3’s, whereby Helena Gabriel (PW1) the Assistant Medical Officer attended them before both were 1 referred to the theater for operation and later on filled in the two PF3’s issued to them (Exhibit PE1 collectively). While undergoing treatment on the 16/11/2022 Matheo Joseph Isingo succumbed to death and when his body was medically examined by Dr. Faustine Andrea Magomola (PW7) before his relative Victor Joseph Isingo (PW8) who identified the body and the investigator D/Sgt Frank (PW11), the autopsy report (exhibit PE2) revealed his cause of death to be due to Severe Traumatic Head Injury. As the attacker allegedly identified by PW3 and PW4 had fled from the village his search was mounted parallel with investigation of the whole case, the result of which the accused Samwel John Isingo was arrested in connection with that murder incident while at his home Malamba mawili within Ubungo District, Dar es salaam region by police officer from Mabwepande Police Station in company of PW8 and two trained people’s militia (mgambo) and brought back to Ikungi District. The suspect was later on arraigned before the Resident Magistrate Court of Singida charged with two counts of Murder; Contrary to sections 196 and 197 of the Penal Code and Attempt to Murder, Contrary to section 211(a) of the Penal Code, [Cap. 16 R.E 2022] which he is still facing before this Court. It is contended by the prosecution in the first count that, the accused person on the 15/11/2022 at Sakaa Village, Misughaa Ward, Mughaa Division within Ikungi District and Region of Singida did murder one Matheo Joseph Isingo and in the second count that on the same date, place did attempt to cause death of one Dafroza Ephrahim. 2 When the information was put to him before this Court the accused returned a plea of not guilty as in his defence raised a defence of alibi, in that on the 15/11/2022 was not in Sakaa village within Misughaa ward and Mungaa division in Ikungi District as he was lastly there in 2021. Following denial of prosecution accusation, eleven (11) witnesses were paraded by the prosecution in court and three (3) exhibits tendered while the accused entered his defence as a sole witness with no exhibit to rely on. Throughout the trial the prosecution proceeded under representation of Ms. Elizabeth Barabara assisted by Mr. Almachius Bagenda and Mr. Godfrey Songoro, all learned State Attorneys while the accused person defended by Mr. Peter Ndimbo, learned counsel. At the conclusion of trial the Court was informed by both parties of their intention not to render their closing submissions hence invited it to enter judgment basing on evidence adduced by both sides. In this judgment I am not intending to reproduce the whole evidence as adduced in Court rather will refer the same in the course of addressing issues as raised by the Court. Having revisited the evidence from both sides the main issue which this Court is called to answer is whether it is proved to the required standard that the accused person committed the offences of Murder and Attempted Murder with which he is charged with. The offence Murder is created under section 196 of the Penal Code, [Cap. 16 R.E 2022] reading thus: 3 196. 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 provision of the law, a person will be found guilty of the offence of Murder when three ingredients are established against him to the required standard. One, whether the person alleged to be killed is dead and died unnatural death. Second, whether it is the accused person who is responsible for his/her death and third, whether the killing if proved was actuated with malice aforethought (ill intention). As to the second count in which the accused is charged with section 211(a) of the Penal Code reads: S. 211. Any person who (a) Attempts unlawfully to cause death of another, is guilty if an offence and is liable to imprisonment for life." From the above exposition of the law, for an act to constitute an offence of Attempted Murder there same must be unlawful committed and secondly, must be accompanied with an intent to kill or cause death of the victim as an essential ingredient. See the case of Hamis Tambi Vs. R, [1950] 20 EACA 176. However, the said ingredients of the offence of Attempted Murder under section 211 of the Penal Code, cannot be read in isolation as must be read together with section 380 of the Penal Code defining the term ’’attempt’’. Under section 380(1) and (2) of the Penal Code, a person intending to commit an offence is deemed to so attempt when begins to put his intention into execution by employing some means to fulfil it and manifests his intention 4 by doing some overt act, but does not fulfill his intention to such extent of completion of the offence. This is regardless of whether the offender takes and does all what is necessary to complete the offence or is prevented by any circumstances to further his intention to complete the said offence. In considering what constitutes the offence of Attempted Murder the Court of Appeal in the cases of Samwel Jackson Saabai @Mngawi and 2 Others Vs. R, Criminal Appeal No. 138 of 2020 and Boniface Fidelis @Abel Vs. R, Criminal Appeal No. 301 of 2014 (CAT-unreported) categorized it into four elements going thus: (a) Proof of intention to commit the main offence of murder. (b) Evidence of prove how the accused/ appellant began to employ the means to execute his intention. (c) Evidence that proves overt acts which manifested the accused's/appellant's intention (over act means an act directed towards another person that indicate an intent to kill). (d) Evidence proving an intervening event, which interrupted the accused/appellant from fulfilling his main offence to such extent if there was no such interruption, the main offence of murder would surely have been committed " Now in establishing whether ingredients of the said two offences exist in this matter, it is imperative for the Court to navigate through the guiding principles in proof of criminal matters. The trite law is that under sections 110(1) and (2) and 112 of the Evidence Act, [Cap. 06 R.E 2022], whoever alleges existence of any fact and invites the Court to enter judgment in his favour 5 carries he burden of proving existence of that fact. And in so proving in criminal matters, the set standard of proof as per section 3(2)(a) of the Evidence Act, [Cap. 6 R.E 2022] is that of beyond reasonable doubt. It is so as the burden of proof never shifts unless otherwise provided by statute or any other written law, since suspicion alone is not sufficient evidence to prove accused’s guilty, more so in serious offence such as murder. See 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 settled law that, accused person is not under any duty to prove his innocence but rather cast doubt on prosecution case. See the cases of Said Hemed Vs. R [1986] TLR 117 and Aburaham Daniel Vs. R, Criminal Appeal No. 6 of 2007 (CAT- unreported). It is so as conviction is never premised on weakness of defence case but rather on strength of prosecution case. See the cases of Mohamed Haruna @ Mtupeni and Another, Criminal Appeal No. 259 of 2007 (CAT- unreported). With the above guiding principles I now turn to consider the first count of Murder in which the issue is whether the three ingredients constituting the offence have been established by the prosecution beyond reasonable doubt. As to the first ingredient whether the said Matheo Joseph Isingo is dead and died of unnatural death the prosecution relied on the evidence of PW3, PW4, PW5, PW6, PW8 and PW11 who all testified in Court confirming that, Matheo Joseph Isingo is dead and died on 16/03/2021 at Makiungu Hospital as PW8 and PW11 also attended the autopsy of his body conducted by Dr. Faustine 6 Andrea Magomola (PW7). It is also this PW7 whom in the autopsy report (exhibit PE2) established deceased’s cause of death to be due to Severe Traumatic Head Injury, undoubtedly caused by sharp object hence a proof that his death was unnatural. With that evidence on record this Court is satisfied that, the prosecution proved the first ingredient beyond reasonable doubt. As to the second ingredient the issue is whether the accused persons is responsible for death of Matheo Joseph Isingo. In proof of this element the prosecution relied on visual identification evidence of PW2, PW3, PW4 and PW5 as the offence is alleged to have been committed in the mid night of 14/03/2021 falling to 15/03/2021. In was in the evidence of Hawa Gwae (PW2) an old woman and a resident of Misughaa and Sakaa village that, on the night of 14/03/2021 while at home around 21.00 hours the accused person knocked on her window. When she opened it he asked for food (ugali) but she had none to offer and asked him where as he for all such period as he was not seen in the village for a long time. She said, the accused answered that, he had come to accomplish his mission (nimekuja kufanya kazi yangu) before he left and later on PW1 heard an alarm coming from deceased home at about 00.00 hours where she later on managed to attend only to find the victims already taken to the hospital. According to her, she managed to identity the accused Samwel whom she also identified in dock in the Court, by aid of solar bulbs light that were illuminating brightly both inside and outside her house where he had stood and that it was one meter from the 7 point of observation. She said, on that day Samwel had in possession a machete and a piece of iron bar. When cross examined said, she is known to the accused person being a son to her cousin and his full names are Samwel John Isingo a she knew him since his childhood. Next in testimony was Veronica Matheo Joseph (PW3) the deceased daughter and a form three (3) student whose testimony was to the effect that, on 15/03/2021 at about 00.00 hours while at their home in the living room studying, their entrance door as broken into by the person whom she identified as her uncle (ba mdogo) going by the name of Samwel who had in his possession a machete and a piece of iron bar. She said, when asked him where was he going was warned by him to keep quiet or else would be killed before he proceeded in her parents’ bedroom where she heard her mother (PW3) screaming saying my bother in law why are you killing my husband ’’shemeji mbona unaniulia mme wangu’’. And that, she raised alarm and in less than 5 minutes she saw the accused person whom she also identified in Court as Samwel, coming out of her parents’ bedroom running away before her uncle Venatus (PW5) responded whereby she narrated to him as to what Samwel had done inside. That, the two went inside to observe the victims’ conditions only to find her father and mother seriously injured by machete with cut wounds on their heads whereby the decision to take them to Makiungu hospital for treatment was made by PW5. As to how she identified him this witness elucidated, there was solar powered bulb illuminating brightly in the sitting room and that, the distance from the table where she had seated 8 and the point the accused stood after getting inside was one meter from her. When cross examined PW3 disclosed that, she knew uncle Samwel since her childhood and further that, in order to get in her parents’ bedroom one has to pass in the sitting room where she was seated studying. And qualified that, up to the time of that incident Samwel was not living in the village as his home was very close to theirs so as quite sure of that fact. She also confirmed that, her grandfather who is also Samwel’s father was set ablaze by the mob after he failed to cooperate with villagers during that incident. As for PW4 her evidence was to the effect that, on the night of 14/03/2021 while asleep in the bedroom with her husband (deceased) and their little child at about 00.00 hour when their daughter was in the sitting room studying were invaded in their bedroom by the accused Samwel who had broken the entrance door. That, the said Samwel who had a machete and piece of iron bar in his possession attacked his husband (deceased) with a machete on the head, before he turned on her and assaulted her also with a machete on the head when asked as to why was he killing her husband (kwa nini unaniulia mme wangu), as the scar of the cut wound was shown to the court by her. She said, following that attack she raised a hue as the attacker also wanted to attack the little child when said ’’naua na mtoto’’ before he ran away and his brother in law one Venatus (PW5) responded to their rescue and took her and the husband to Makiungu hospital where they were attended and stitched in the theater before they continued with treatment until 16/03/2021 when her husband passed away and later on buried. As to how she identified the 9 accused person PW4 testified, she knew him since the perion she got married to the deceased in the family of Isingo and that, on the incident date there was light in their bedroom from the solar powered bulb illumination enough light. And further that, the size of their bedroom was small. When cross examined PW4 elaborated, Samwel was not living in the village at the time of commission of an offence and that, he killed her husband in retaliation as he had grudges with him. On his side, PW5 corroborated PW3 and PW4’s evidence when told the Court that, on the night of the incident called at the scene of crime in response to the hue raised only to meet PW3 and PW4 who narrated to him on how Samwel John Isingo invaded their home as his bother Matheo Joseph Isingo’s body was covered with blood, before he rushed the victims to Makiungu hospital after informing his bother (PW8) at Dar es salaam where the deceased passed away on 16/03/2021 while undergoing treatments. He also explained on how the deceased told him to have been threatened by the accused to be killed after he had cooperated with the police officers in effecting his (accused) arrest when committed an offence at Dar es salaam and took hide in Sakaa village. And that, in July 2022 the accused person also stole deceased five (5) heads of cattle which were recovered at PUMA village as the accused managed to flee from the hands of the persons who seized them. This witness also identified the accused person in dock. As alluded to above the evidence relied on by prosecution is this matter is of visual identification as the offence was committed during night time. The law 10 governing evidence of visual identification in this Jurisdiction is settled and the Court of Appeal in many occasions has restated the principles governing it in determination of accused’s guilty. These include; one, such evidence is of the weakest kind and most unreliable hence should be acted upon cautiously after the court is satisfied that the evidence is watertight and all possibilities of mistaken identity are eliminated. Two, even if it is evidence of recognition that evidence must be watertight. In that regard, where the offence is committed at night, and the question of light is in issue, there must be clear evidence as to the intensity of the said light since bare assertions, would not do. Three, in matters of identification, evidence on conditions favourable for identification must be clear and watertight, as mere evidence of identification however ideal they may appear are no guarantee for truthful evidence. See the cases of Waziri Amani Vs. R [1980] T.L R 250, Raymond Francis Vs. R [1994] T.L.R 100, Chokera Mwita Vs. R, Criminal Appeal No. 17 of 2010, Daniel Paul @ Meja Vs. R, Criminal Appeal No. 307 of 2016, Baya Lusana Vs. R, Criminal Appeal No. 593 of 2017 and Godfrey Lucian Shirima Vs. R, Criminal Appeal No. 40 of 2021 (all CAT- unreported). In the case of Baya Lusana Vs. R, Criminal Appeal No. 593 of 2017 (CAT-unreported), on principles guiding the Court when dealing with evidence of visual identification the Court of Appeal, had this to say: The law on the evidence of visual identification is well settled as the court is warned not to act on such evidence unless all 11 the possibilities of mistaken identity are eliminated and the court is satisfied that the evidence before it is absolutely water tight. In that regard, the trial court must consider the following guidelines: One, the time the witness had the accused under observation; tw o, the distance at which he observed him; three, the conditions in which the observation occurred, for instance whether it was day time or night time; four, whether there was good or poor lighting and five, Whether the witness knew or had seen the accused before or not. See: W aziri Am ani Vs R epublic [1980] T.L R 250, R aym ond Francis Vs R epublic [1994] T.L.R 100 and Chokera M w ita Vs R epublic, Criminal Appeal No. 17 of 2010 (unreported). Applying to the circumstances of this case the above cited principles and factors to be considered by the Court when dealing with evidence of visual identification, it both in evidence of PW3 and PW4 that the accused was not stranger to them since PW3 knew him from her childhood as his uncle while PW4 recognised him as his brother in law since the time when she married to the deceased Matheo Joseph Isingo in 2004. And that, on the fateful night there was bright light from the solar powered bulbs illumination in both sitting room where PW3 had seated studying when the accused broke into through the entrance door before advancing into her parents’ bedroom and in the bedroom where PW4 was asleep with her husband (deceased). It is through the aid of that source of light the two witness managed to see the accused person in possession of the machete and piece of iron bar which as per PW4, it is the same machete which was used to assault them. As to the time spent by the witnesses under observation the same is not specified but due to the 12 conversations they had with the accused the court is satisfied and therefore free from doubt that the conditions that prevailed wer sufficient to have unmistaken identity. I so view as PW3 hinted that, she asked the accused ba mdogo unakwenda wapi and replied that ’’nyamaza ntakuua’’, the conversation which this court is convinced and left without doubt that availed her enough time to observe and unmistakenly identify him. Likewise PW4 asked him when stormed into their bedroom and attacked her husband as to why was he killing her husband, ’’shemeji kwa nini unaniulia mume wangu’’ before he attacked her too and said would kill even the little child ’’naua na mtoto’’. The fact that she recognized him as his brother in law plus the conversations the two had, is an assurance to this Court that she made unmistaken identity since the room which was small in size was well illuminated by big solar powered bulb. On the distance in which the witnesses were positioned at the time of observation PW3 said it was one meter from where she had seated while PW4 said it was within the said small room as she was on the bed too with her husband, the distance which I have no doubt was close and sufficient for them to render unmistaken identity. The above aside these two witnesses PW3 and PW4 named their assailant as Samwel (accused) to PW5 and PW11 at the earliest possible time, the fact which is corroborated by the two witnesses in their testimonies. It is trite law that, witness’s ability to name a suspect at the earliest opportunity is an assurance of his reliability. See the case of Marwa Wangiti Mwita and Another Vs. R, [2002] TLR 39. In this case since PW3 and PW4 named their 13 assailant at the earliest possible time as Samwel (accused), I find is an assurance of their reliability something that render their evidence credible. That, aside I had also an ample time to observe PW3 and PW4’s demeanors when testifying in court and satisfied that, were witnesses of truth as they were composed, straight and responding soundly to the questions put to them without any hesitation. As the accused was not stranger to PW3 and PW4 as stated in their evidence, I find there was also identification of accused person by recognition which is the most reliable type of identification. Since there is no evidence that, identifying witnesses were so terrified to the extent of losing concentration, I am satisfied that their identification of the accused person was free from any mistaken identity. Hence I have no difficulties in holding that, the accused person Samwel John Isingo was properly identified at the scene of crime by PW3 and PW4. In his defence the accused person denied to have committed the offence while raising a defence of alibi after he had issued a notice orally during preliminary hearing that, at the time when the alleged murder was committed on 15/03/2021 he was not in Sakaa village for being there lastly in 2021. He narrated his story on how his arrest was effected at his home Malamba mawili within Ubungo District, Dar es salaam region on 23/03/2021 by police officers who were in company of his brother Victor Joseph Isingo (PW8) among others and brought back to Ikungi District escorted by afande Robert (PW10) in company of (PW8) and other community police (police jamii) and spent a night at Bahi Police Station before he was collected on the next day by police 14 officers from Ikungi District. And that, at Ikungi Police Station was interrogated and subjected to serious torture forced to admit responsibility on the attack of PW4 and killing of the deceased, the accusations which according to him denied them before he was arraigned in Court faced with both charges of Murder and Attempted Murder. When cross examined, he denied to have pleaded PW8 not to kill him during his arrest as alleged by him while admitting to have no grudges with PW6, the village chairman of Sakaa village and that, he did not know as to why PW6 said he stole five heads of cattle. He further explained that, he had no grudges with PW11 (D/Sgt. Frank) and was not aware also as to why he testified that he confessed before him to have committed this offence of murder. I have carefully considered the accused defence of alibi against the evidence adduced by the prosecution in Court. The settled law is that, where an accused person puts forward a defence of alibi as an answer to a charge or information, he does not thereby assume the burden of proving it as the burden of proving his guilt beyond reasonable doubt remains throughout on the prosecution’s shoulder. It is sufficient that an alibi raises a reasonable doubt. See the cases of Sekitoleko Vs. Uganda (1967) E.A. 531 at 533; Leornard Aniseth Vs. R (1963) EA 206; Saidi s/o Mwakawanga Vs. R (1963) E.A 6), AH Salehe Msutu Vs. R. (1980) T.L.R. 1 and Jumanne Juma Bosco and Another Vs.R, Criminal Appeal No. 206 of 2012 (CAT- unreported). In this matter having weighed both sides’ evidence I find the accused’s defence of alibi not have casted any doubts on the prosecution case 15 as the prosecution through the evidence of PW2, PW3 and PW4 managed to prove beyond reasonable doubt that, on the night of 15/03/2021 at about 00.00 hours the accused was present in Sakaa village. Apart from being identified by PW3 and PW4 at the scene of crime there is unshakable evidence of PW2 that on the night of 14/03/2021 at about 21.00 hours she saw him after the accused had knocked her window asking for food whereby PW2 asked him as to where was he for such long time before he answered to her that, he was in the village to accomplish his mission. According to PW2, sometimes later she heard alarm coming from deceased home only to find that he had been assaulted by machete together with his wife before the two were rushed to hospital. In her evidence no doubt she was known to the accused whom she identified in Court as Samwel John and her counsin’s son and that, she saw him growing since his childhood. It was in her further evidence that, on that day there was solar powered bulbs illuminating light both inside and outside her house and that, she managed to identify him as he stood one meter outside her house. With that cogent evidence of PW2 whose credibility is not questionable after observing and got satisfied with her demeanor when testifying in court to be a truthful witness on the identification of the accused before commission of an offence, coupled with the fact that he was seen some few hours later at 00.00 hours on 15/03/2021 at the scene of crime by PW3 and PW4 attacking the deceased and PW4, I disbelieve them and accord no weight to accused’s defence of alibi as the prosecution has proved beyond reasonable doubt that he was at the scene of crime and he is 16 responsible for the deceased’s death. Thus the second element is established to the required standard. The last ingredient is whether the accused person killed the deceased with malice aforethought. From the evidence of PW3, PW5, PW8 and PW11, it is claimed the accused had grudges with the deceased after the later had co- operated with police officers to arrest the accused when he committed an offence in Da es salaam and fled took hide at Sakaa village. However, when cross examined as to whether there was evidence tendered in court proving the said version of being arrested and taken back to Dar es salaam and whether the accused as charged and convicted on the alleged offence committed there these witnsesses admitted to have none. The accused in his defence denied to have been arrested in the village and taken back to Dar es salaam as alleged by prosecution witnesses. Having considered both parties’ evidence, I find no cogent evidence was tendered by the prosecution proving that contention that, it was deceased’s co-operation in the arrest of accused that caused him to revenge against him when attacked him with machete. With that finding can it therefore be concluded that there is no evidence disclosing accused’s malice aforethought in the said killing of the deceased? With due respect I think the response is no. It is trite law that, normally an attacker will not declare his intention to cause death or grievous bodily harm. Therefore an inference of malice is drawn from consideration of various factors as once adumbrated by the Court of Appeal in the case of Enock 17 Kipela Vs. R, Criminal Appeal No. 150 of 1994 (CAT-unreported), where the Court had the following 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.’’ In the present case having taken into consideration the fact that, the attacker (accused) used a machete which is a lethal weapon, the force applied him on the deceased head which is a sensitive part of the body before he turned to PW4 and assault her with the same weapon, part of the body plus the number of blows made which according to the post mortem report exhibit P2 were three (3) cut wounds of the left part of the head and big cut wound on PW4’s head as per the PF3’s all prove accused’s intention to attack the deceased and PW4 with either causing them grievous bodily harm or death. I so find as after he had attacked PW4 the accused was heard saying ’’ntaua na mtoto’’, meaning that he had formed the intention of killing the deceased before and that is why he wanted also to kill even the little child that was with PW4 and 18 the deceased in their bedroom. With such strong evidence I am satisfied that, accused’s act of attacking the deceased and PW4 with machete was actuated with malice aforethought hence the 3rd ingredient is answered in affirmative too. To sum up since the prosecution managed to prove existence of all three ingredients constituting the offence of murder, I am satisfied and therefore arrive to the finding that, the charge of Murder facing the accused has been proved by the prosecution beyond reasonable doubt. Thus the main issue raised above is answered in affirmative. Next for determination is on the issue as to whether the offence of Attempted Murder of PW3 was proved beyond reasonable doubt against the accused person. As alluded to above the Court of Appeal in the cases of Samwel Jackson Saabai @Mngawi and 2 Others (supra) and Boniface Fidelis @Abel (supra) approved four (4) ingredients constituting the offence of Attempted Murder. As also already found above there is no dispute that, the accused was present at Sakaa village on the night of 15/03/2021 and that he is the one who invaded the house of Matheo Joseph Isingo and PW4 by breaking the entrance door before he attacked them with machete. Now applying the four elements of the offence of Attempted Murder to the facts of this case there is no dispute that, the accused’s act of passing at PW2’s home informing her that he had come to fulfill his mission and few hours later broke into deceased and PW4’s house while holding a machete and a piece of iron bar before he asked PW3 to stay quiet otherwise would be killed is a clear evidence of his intention to kill them when stormed therein hence proof 19 of the first element. As to the second and third element, his act of advancing to the deceased’s bedroom and cut him with machete three times on the head before he turned to PW4 who was also assaulted with machete on the head also proved the second and third elements of the offence for indicating the overt act and how he executed his intention to cause PW4’s death. Lastly is on what intervening event caused him not to fulfill his act of causing death to PW4? As per PW3 and PW4, when assaulting her and the deceased, PW4 raised a hue couple with the one raised by PW3, made the accused not to stay longer in the deceased and PW4’s bedroom before he rushed outside the house and took to his heels. In my considered view it was the said alarm raised by both PW4 and PW3 that saved as intervening event that prevented him from furthering his intention of killing PW4. To that end this Court is satisfied that, the four elements of Attempted Murder, were proved by the prosecution against the accused person hence the above issue is answered in affirmative too. In view of the above discussion and findings, I find the prosecution has proved their charge beyond reasonable doubt hence the accused person is found guilty of the offence charged with in both counts. I therefore proceed to convict him with the offence of Murder, contrary to section 196 and 197 both of the Penal Code, [Cap. 16 R.E 2019] as charged in the first count. Equally I convict him with offence of Attempted Murder, Contrary to section 211(a) of the Penal Code, [Cap. 16 R.E 2019] as charged in the second count. It is so ordered. 20 Dated at Dodoma this 26th day of July, 2024. E. E. KAKOLAKI JUGDE 26/07/2024. SENTENCE The accused has been convicted with both counts of Murder and Attempted Murder. The law is settled that, once the accused person is found guilty and convicted of Murder the only prescribed sentence is death by hanging regardless of another lesser offence found guilty and convicted with. In this matter since the accused person Samwel John Isingo is convicted of both Murder and Attempted Murder and that, there is no alternative sentence to death by hanging, 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 26/07/2024. Court: The Judgment has been delivered at Dodoma via video conference today on 26th day of July, 2024, in the presence of the accused in person and their advocate Mr. Peter Ndimbo, advocate for the accused person, Ms. Sara Amandu, State Attorney for the Republic, all appearing from Singida and Ms. Veradina Matikila, Court clerk. Right of appeal explained. 21 E. E. KAKOLAKI JUGDE 12/07/2024. 22