FOR TANZLII Dayfath

Page |1 IN THE HIGH COURT OF TANZANIA (GEITA SUB-REGISTRY) AT GEITA CRIMINAL SESSIONS CASE NO. 3319 OF 2024 REPUBLIC VERSUS 1. DAYFATH SULEIMAN MAUNGA 2. SAFARI BUNDALA LUBINGO 3. GENJA DEUS PASTORY 4. MUSSA ALLY PASTORY JUDGMENT Date of last Order: 28/06/2024 Date of Judgment: 27/08/2024 K. D. MHINA, J. In the morning of 26 April, 2023, at Mwatulole Street in Geita District, a woman was found in an unfinished house. She was unconscious, speechless, and profusely bleeding on the head, neck, and upper limbs. At the scene, some people recognized her as MILEMBE SULEIMAN HUNGWE, the deceased in this case. Page |2 The autopsy report established that the deceased died of excessive bleeding as a result of multiple cut wounds in her head, neck and upper limbs. The cut wounds in the head and neck were 8 and 6 centimetres deep, the right-hand writ was cut and separated from the body, and three fingers in the left hand were amputated. The Police force believed that the killing was certainly unnaturally caused; thus, it launched an investigation and a manhunt to identify and arrest the killers. As a result, the following accused persons were arrested and charged with the offence of Murder in contravention of the provisions of sections 196 and 197 of the Penal Code, Cap. 16 RE: 2022. The 1st accused person is one DAYFATH SELEMANI MAUNGA, 30 years of age, Sambaa by tribe, a Businesswoman, and a resident of the Usagara area within Misungwi District and Region of Mwanza. The 2nd accused person is one SAFARI BUNDALA LUBINGO, 54 years of age, Sukuma by tribe, a peasant and a resident of Chigunga within District and Region. Page |3 The 3rd accused person, GENJA DEUS PASTORY@LUBINGO, 30 years of age, Sukuma by tribe, a peasant and a resident of Bugarama within Kahama District and Region of Shinyanga. The 4th accused person is MUSSA ALLY PASTORY@LUBINGO, 33 years of age, Sukuma by tribe, a peasant and a resident of Kakola within Kahama District and Region of Shinyanga. (Hereinafter to be referred to as “the 1 st, 2nd, 3rd and 4th accused person respectively or the accused persons), It was alleged on 26 April 2023, at Mwatulole area within the District and Region of Geita, the accused persons jointly and together murdered Milembe Suleiman Hungwe. Both accused persons pleaded not guilty to the charge. During the Preliminary Hearing conducted under Section 192 of the Criminal Procedure Act, Cap. 20 R.E. 2022, the accused persons admitted their personal particulars except for the 3 rd accused person, who denied his name. They denied all other material facts read and explained to them. The Republic thus brought twenty-nine (29) witnesses to prove its case. The witnesses were PW1 (Assistant Inspector Festo Samuel Page |4 Kigaba), the police officer who collected a blood sample from the deceased body and seized the bottle of Fanta (exhibit P2) from the crime scene; PW2 (H4050 Detective Corporal Philemon), a police forensic investigator; PW3 (Noel Kaji Ndasa), the chairman of Mwatulole Street, where the offence was committed; PW4 (Ndulwa Misese Migena@ Ibrahim), the deceased’s brother; PW5 (PF. 23426 Assistant Inspector Peter Joseph Ngazalo), fingerprints expert; PW6 (Christopher Yohana Matola), medical practitioner; PW7 (Anastazia Gervas), a witness to the search; PW8 (H 3827 Detective Corporal Salum Hassan Ally), photo and video (CCTV footage) analyst; PW9 (Kazungu Mishongoli), local sanitation person/chamber master; PW10 (F 6813 Detective Sergeant Shaban), a police forensic investigator. Others were PW11 (G.4026 Detective Corporal Darius), a police officer who recorded the cautioned statement of the 1st accused person; PW12 (G. 3206 Detective Corporal Said), a police investigator; PW13 (G.4742 Detective Corporal Michael), a police officer who recorded the cautioned statement of the 3rd accused person; PW14(Rejment Amon Kagoma), a tri-cycle (Bajaj) driver for hire; PW15(Grace Evarist Gervas), the deceased’s daughter; PW16(Assistant Inspector Stephen Page |5 Bagenda), a police officer who supervised identification parade; PW17(Kulwa Elias Damas), the Manager of California Lodge; PW18(G 40 Corporal Geoffrey), the exhibit keeper; PW19 (No. E 9206 Detective Seargent Martin), a police officer who drew the sketch map of the scene of crime; PW20 (Sadock Mosses Mboya), a Government Chemist; PW21 (WP. 5870 Detective Seargent Zakia), a police investigator; PW22 (Salala Bihemo), police who collected blood sample from the sword and buccal swab from the 3rd accused person; Also, there were PW23 (No. G 8837 Detective Corporal Timo), a police who sent the exhibits to the Chief Government Chemist; PW24 (No. G. 3580 Detective Corporal Hashim), a police investigator; PW25 (Simon Komela Myula), ten-cell leader of Mwatulole Street; PW26 (Ally Omary Kanenda), a Government Chemist; PW27 (Inspector Grandino Chang’a), a police officer who arrested the 3rd accused person; PW28 (No. E 7719 Detective Seargent Paschal), investigator of this case; and PW29 (No. G. 8517 Corporal Mang’oina), the exhibit keeper. Besides, they tendered Nineteen (19) exhibits, which were admitted in evidence. Page |6 The Republic was represented by Mr. Merito Ukongoji, Senior State Attorney, Ms. Grace Kabu, State Attorney and Ms. Scolastica Teffe, State Attorney. On the other hand, the 1st accused person was represented by Mr Liberatus Rwabuhanga, the 2nd accused person by Mr Laurent Bugoti, the 3rd accused person by Ms Elizabeth Msechu and the 4th accused person by Mr Eric Lutehanga; both learned Advocates. Initially, there were five accused persons; however, after the closure of the prosecution case, Cecilia Machemu, who was the 5 th accused person, was acquitted under section 293 (1) of the CPA for no case to answer. Briefly, the prosecution evidence on the discovery of death and initial stages in investigations were as follows: PW3 (Noel Kaji Ndasa), the Chairman of Mwatulole Street, testified that on 26 April 2023 at 07:00 hours, he was informed by phone by one Juma Mhanga that there was a murder at his neighbour's premises. He rushed to that and found people. In the sitting room, one of the unfinished houses in the compound of four houses, he saw the lifeless body of the owner of the compound, one Milembe Suleiman Hungwe. Page |7 After that, he notified the ward police officer and Geita Gold Mine Limited, where the deceased worked. Later, police officers arrived and started the investigation. According to the evidence of PW1 (Assistant Inspector Festo Samuel Kigaba), on the morning of 26 April 2023, morning, after receiving the information of a person who was killed at Mwatulole Street from the Chairman of Mwatulole Street, he went to the scene of crime together with other police officers. At the scene, within the compound, they found the dead body of a female lying facing down inside an unfinished house. At that time, there were many civilians. The head of the deceased had cut injuries on the back. The right wrist was cut by a sharp object and removed from the arm. Also, the finger on the left arm was cut and removed. The wounds were “big”, and there was a lot of blood at the scene. They cordoned off the crime scene and searched. They saw blood on the wall of the building and found the bottle of Fanta with white liquid inside. To that effect, he tendered: Page |8 i. The bottle of Fanta with white liquid as Exhibit P1. After finding that bottle, he seized it. To that effect, he tendered ii. The certificate of seizure dated 26 April 2023 as Exhibit P2. Then, after finishing the inspection, he collected the blood sample from the deceased body injuries by using a soft cotton (swab stick) and handed the sample to H. 4050 Detective Corporal Philemon. He further testified that he filled the Sampling Management Form under the DNA Act and then instructed Sergeant Shaaban to take the fingerprints from the bottle of Fanta. Thereafter, the deceased body was sent to the morgue. When he returned to the police station, he handed the bottle of Fanta to Corporal Mang’oina, the exhibit keeper. The blood samples and Sampling Management form were handed to another police officer for sending to the Chemist. In his evidence, PW10 (F 6813 Detective Sergeant Shaban) in taking the fingerprints from the bottle of Fanta, he put the fingerprint powder Page |9 in the “neck” of the bottle, collected the fingerprints using a special fingerprint tape, and revived the fingerprints. Then, he put the collected and revived fingerprints on a special card. He sent and handed that card to the exhibit keeper. That day also, according to the evidence of PW19 (No. E 9206 Detective Seargent Martin), around 09:00 hours, he went to the crime scene. He drew the sketch map in the presence of the street chairman, Noel Ndasa, who signed it. He drew that map under the supervision of Assistant Inspector Festo. To that effect, he tendered; iii. The sketch map dated 26 April 2023 as Exhibit P14. The brother of the deceased, PW4 (Ndulwa Misese Migena@ Ibrahim), testified that on 26 April 2023, at about 08:00 hours, he was informed by phone by Dr. Ntemi of G.G.M. that there was bad news regarding her sister, Milembe. Later, he received a lot of calls. One of the callers told him to go to Mwatulole area where his sister was building apartments. When he arrived, he found civilians and police officers inside the compound where the apartments were constructed. Inside one of the P a g e | 10 houses, he saw the body of a person covered with cloth “khanga”. He was told that it was the lifeless body of Milembe. When he removed the cloth, he saw the left-hand writ was cut and removed from the body, and it was in another room. The deceased also had a cut wound at the back of her head. Then, he fainted, and when he woke up, he was admitted to Waja Hospital. The medical practitioner also testified regarding the death of Milembe. According to PW6 (Christopher Yohana Matola), on 27 April 2023, at Geita Referral Hospital, he was instructed by his in-charge, Dr. Mfaume Salum Kibwana, to examine the deceased body. In her examination, he found bruises on the legs, the right wrist was cut and separated from the arm, and there were other cuts. On the left arm, only two fingers remained. Three fingers were amputated and removed. There was an extensive injury cut at the back of the neck to the extent it reached the bone. At her head, there was a large injury. On her face on the left side, there was also a cut injury. P a g e | 11 The whole body was covered with blood resulting from the injuries, and the cause of death was a haemorrhage caused by injuries inflicted by a sharp object. After he completed the examination, he filled the post-mortem report and stamped it. To that effect, he tendered; iv. The post-mortem report dated 27 April 2023 as Exhibit P6. In her evidence, the daughter of the deceased, PW15(Grace Evarist Gervas), on 26 April 2023, was taken from school at Marian Girls Bagamoyo where she was a VI student. When she arrived at Geita on 27 April 2023, his uncle Dulla Misese and a police officer named Juma informed her that her mother was murdered by unknown assailants. She was shocked and fainted. Later, she was taken to Mseto area where her aunty (Mama mkubwa) was living and shown the body of her mother in a casket. She testified that her mother was buried on 29 April 2023 at Kilombero Village in Geita. P a g e | 12 Speaking of her mother, she said she lived in Usagara with the Dayfath (1st accused person) and a housemaid. Her mother introduced Dayfath to her as also her mother. They started to leave with her from 2021 up to April 2024. Her mother had a sexual relationship with Dayfath, and she knew it because Dayfath served her mother on her phone as king, but they also called each other different names, like baby and wife. Her mother was calling Dayfath, wife. She further testified that the life of her mother and Dayfath in Usagara was good at first, but later, they constantly quarrelled. One day, she witnessed her mother beat Dayfath, who became angry, took her child and left. Later, at about 01:00 hours, her mother received a message from an unknown phone number, informing her that Mama Alisha (Dayfath) was sick and that she was at Amazon Lodge. They went to that lodge and took Dayfath home. On the next day, she advised Dayfath to leave because of the beatings, as she was beaten like a small child. However, Dayfath responded that she would go after finishing her objectives. P a g e | 13 After the initial stages of the investigation, police launched an intensive investigation and the evidence on that was as follows; According to the investigator of the case, PW28 (No. E 7719 Detective Seargent Paschal), the investigation of the case started on the very day the deceased body was found. In his evidence, he stated that on 26 April 2023, he was assigned to investigate this case. He was instructed to collect evidence and search for the culprits. On the same day, he visited the crime scene for inspection, and the scene there was blood. He further testified that, together with other police officers, he went to California Lodge, where the deceased was staying. At the lodge, he recorded the statements of the attendants, who informed him that the deceased was staying in room No. 26 and that on the previous day, the deceased left the lodge in the company of three male persons by using “bajaj” transport. Further, he was informed that there were CCTV cameras at the lodge. P a g e | 14 PW28 further testified on 25 April 2023, he went again to California Lodge. This time, he had the new flash disc make Digirish and was with Sergeant Shaban, a police forensic investigator. He requested that the Lodge Manager to provide him with the CCTV camera footage dated 25 April 2023. The Lodge Manager gave him the memory card from the CCTV camera system. He downloaded the footage onto a flash disc and handed it to Seargent Shaban for storage. Later, he was informed that the suspects were arrested. In his evidence, PW17(Kulwa Elias Damas), the Manager of California Lodge located at Kisesa Street, testified that on 25 April 2023, the deceased was staying in room No. 26. On that day, the deceased was visited by three men, among the men one was an elderly person. One carried a backpack and wore a blue t-shirt. He did not know those three men. They stayed outside, but later, the deceased went to her room with one of the men. After a while, not less than 15 minutes, they came out and left together in a “bajaj”, and Milembe never returned. He further testified that on the morning of 26 April 2023, Milembe's sister, with two other women, went to the lodge and requested access to P a g e | 15 the room where Milembe had been staying. When he declined, Milembe’s sister phoned the police officers, who, after arriving, asked to see the CCTV camera footage. Further, he opened the room where Milembe was staying and handed her properties to her relatives, including the car keys for the vehicle make harrier. He was ordered not to allow anyone to enter the CCTV camera room, and after two days, he received the police officers with an ID card and a letter from the OC-CID. After that, he allowed the police officers to take the footage from the CCTV camera system for 25th April 2023. The tricycle (Bajaj) for hire driver, PW14(Rejment Amon Kagoma), testified that on the evening of 25 April 2023, his passenger, Milembe, phoned him requesting that he go to California Lodge. He arrived at the Lodge at 19:00 hours, and after he notified her, she came out with three male passengers and boarded my Bajaj. One man sat in front of him, two sat with Milembe in the back passenger seat, and Milembe sat in the middle. She directed him to take them to her " construction site" at Mwatulole. When they arrived at Shilabela P a g e | 16 area, Milembe told him to stop, and the three men were dropped off from the Bajaj. The one who sat in front requested TZS. 5000/= from Milembe to buy cigarettes. Milembe asked me to give him TZS. 5000/=, and he did so. It was his first time to see those three men. When he carried those persons from the lodge, there was light; the sun was still lightening. The one who sat in front was black, thin and not tall. They sat together in the front set of Bajaj. Further, he did not switch on the Bajaj lights at that time. After dropping off those three men, he proceeded with Milembe to her site. He further testified that, he left Milembe with George who was constructing the houses at the site. Milembe had a bag with four empty bottles of Fanta and a small water bottle with milk, which she gave George. Then he left. On the morning of 26 April 2023, George phoned him, who asked him to go to the construction site because of a problem. Upon arrival at the site, George told him to enter one of the houses, and he saw the lifeless body of Milembe lying down with injuries. Her right wrist was cut and removed. The left hand was cut, and the cut in the head. P a g e | 17 While PW28 continued with the investigation at the district level, other police officers at the regional level, both from Geita and Mwanza, also continued to investigate and search for the culprits. In his evidence, PW24 (No. G. 3580 Detective Corporal Hashim), a police investigator from the Regional Crime Office of Geita, testified that on 1 May 2023, together with other police officers, they went to Mwanza to investigate the murder of Milembe Seleman. At Mwanza, they were joined by other police officers. At Mwanza, they went to the house of the deceased at Usagara area and arrested the suspects, Dayfath (1 st accused person) and Mussa Fundikira. They transported the suspects to Nyamagana Police Station, where they were interrogated. PW21 (WP. 5870 Detective Seargent Zakia), the investigator from the Regional Crime Office of Mwanza, testified that she was the one who arrested and searched the 1st accused person after being instructed by the RCO of Geita. She arrested her at the house of the deceased located at Nyashimo Village, Usagara, in Misungwi District. P a g e | 18 She further testified that, at the scene of the arrest, she was with other police officers from both Mwanza and Geita. At the house of the deceased, they found the deceased relatives and the 1st accused person. After the arrest, the 1st accused person was transported to Central Police at Nyamagana Mwanza for being suspected of killing the deceased Milembe. According to the evidence of PW11 (G.4026 Detective Corporal Darius), on the evening of 1 May 2023, they arrested the 1 st accused person who was in the meeting for the distribution of the deceased properties held at Usagara in the house of the deceased. She was with the deceased relatives. When the 1st accused person was transported and arrived at Nyamagana Police Station, he was assigned to record her cautioned statement. Then, he prepared a room for the interrogation. That room had a table, two chairs, and papers, and it had a bright light. He took the suspect, who was at the Charge Room Office (CRO), to the room he prepared for interrogation. P a g e | 19 PW11 further testified that before recording the statement, he introduced himself to the suspect, who was in good health condition, and informed her about her rights, such as to have a lawyer, relative, or friend at the time of interrogation and the alleged offence. The suspect expressed her readiness to record her statement alone, and she signed. Then, he recorded the statement in the form of questions and answers from 19:03 hours up to 21:42 hours. Furthermore, PW11 testified that Dayfath confessed to her involvement in the murder. She confessed to arranging the killing of the deceased, Milembe Suleiman, by hiring the killers, including Safari Bundala, whom they met at Usagara area while Dayfath was selling bedsheets and Safari was selling tomatoes. Later, they met at Sengerema to plan the killing. Then Safari searched for the killers, Genja, Buchuchu and Mussa (Wakata Mapanga). The result of that plan was the murder of the deceased. To that effect, he tendered; v. The cautioned statement of the 1st accused person as Exhibit P9. It is on record that though the cautioned statement of the 1 st accused person was admitted, its admission was objected to by the defence side. The P a g e | 20 reason being that the 1st accused person neither recorded nor signed the statement. It was retracted. According to PW24 (No. G. 3580, Detective Corporal Hashim) testified that after Dayfath mentioned Safari (2nd accused person), with whom she said they collaborated in planning the killing, they arrested him on 5 May 2023 at Butundwe Village in Geita. When they questioned him, he mentioned Mussa (4 th accused person), who lived in Bulyanhulu Kahama, that he could assist in arresting the other accused persons. PW24 further testified that they went to Bulyanhulu on the same day and arrested Mussa. Upon questioning him, he mentioned other accused persons who were at Sengerema. Because there were civilians who heard the interrogations, they communicated the names mentioned by Mussa to the police officers in Sengerema in order to arrest those suspects and prevent them from escaping. He further testified that they transported Safari and Mussa to Geita, and on the same night, they were informed that Genja had been arrested. P a g e | 21 In his evidence, PW12 (G. 3206 Detective Corporal Said) testified that on 5 May 2023 at 12:00 hours, he was assigned to record the cautioned statement of the suspect Safari Bundala Lubingo, who was alleged to have committed the offence of murder on 26 April 2023 at Mwatulole area. The deceased was Milembe Suleiman. During interrogation, Safari confessed to participating in the killing of Milembe Suleiman after being involved by Dayfath Suleman Maunga. He stated that Dayfath told him there was a person who was supposed to be killed. Therefore, Safari found his other relatives, and they executed the killing. It is on record that the cautioned statement of the 2 nd accused person was not admitted following trial within a trial when the evidence of torture was presented and proved. After the information that other suspects were at Sengerema was dispersed, the one who was tasked to make a follow up was PW27 (Inspector Grandino Chang’a) who arrested the 3rd accused person at Ilenza, Sengerema. P a g e | 22 He testified that on 5 May 2023, around 10:00 hours, when he was at Nyakalilo Police Station, he was informed by the RCO of Mwanza that there was an incident of murder committed at Geita where a woman named Milembe was killed. He was also informed that there was information that there were suspects, Genja Pastory and Pastory, who were at Ilenza, Buchosa, within the Sengerema District. Thus, he was instructed to arrest those suspects. Around 18:00 hours, informers at Ilenza informed him that Genja was at Majengo Village at Ilenza; therefore, together with other police officers, he went to Ilenza. Upon arrival, he met with the informer who had described Genja that he shaved his beard in “O” style and had a half finger in his right arm. He also informed them of the location where he was. He further testified that around 19:00 hours, they found Genja outside the barbershop after identifying him through electrical lights, and the informer showed them. They arrested him and transported him by motorcycle to Nyakalilo Police Station, where they arrived at around 20:00 hours. P a g e | 23 Furthermore, he said he interviewed him orally, and Genja mentioned Pastory of Ilenza as his co-killer. Also, he revealed that after they killed, they went to Cecilia, the traditional healer to be “traditionally cleansed”. Genja also mentioned the locations of the houses of Pastory and Cecilia. After that they went to Pastory's home in Ilenza but had not found him. Later, they went to Mwangika area and arrested Cecilia. He assigned Corporal Michael to record Genja's cautioned statement. On the next day, on 6 May 2023, around 09:00 hours, he received the phone from the leaders of Majengo-Ilenza informing him that Pastory, who they searching for, had committed suicide by hanging himself at Buhindi forest. They went to Buhindi forest and found a person hanged himself. The villagers identified that person to be Pastory. PW13 (G.4742 Detective Corporal Michael) testified that while they were at Nyakalilo Police Station, he was assigned by Inspector Blandino Chang’a, the OCS of Nyakalilo, to record the statement of the suspect who was arrested at that time. That suspect was Genja Deus Pastory. He was alleged to have killed one Milembe. At that time, the suspect was at the Charge Room Office (CRO), and he was in good condition. P a g e | 24 He took the suspect to the investigation office inside that police station. They sat on the chairs facing each other inside the office, but there was a table between them. The room had enough light as there was an electric light, and the window was open. PW13 further testified that before recording the statement, from 21:55 hours to 22:05 hours, he introduced himself to the suspect and informed him about his rights, such as having a lawyer, relative, or friend at the time of interrogation and the alleged offence. The suspect chose to record his statement alone. Then, he recorded the statement in the form of a question and answer from 19:03 hours up to 21:42 hours. After finishing, because the suspect said he knew how to read and write, he gave him the statement to read. After reading it, he was satisfied that the statement was correct. Then, the suspect signed on each page. He testified that the suspect recorded his statement voluntarily in peace, harmony and love. PW13 further testified that in the statement, the suspect confessed to killing Milembe at her “site”, where she was constructing houses. He confessed to collaborating with his colleagues. P a g e | 25 To that effect, he tendered; vi. The cautioned statement of the 3rd accused person as Exhibit P12. It is on record that though the cautioned statement of the 3rd accused person was admitted, its admission was objected to by the defence side. The reason being that there was a non-compliance of section 57 (3) of the CPA. Prosecution evidence further revealed that after the arrest and interrogation of the suspects, they continued with the investigation. According to PW24 (No. G. 3580 Detective Corporal Hashim), the 3rd accused person was brought to Geita Police Station from Sengerema on 6 May 2023. He testified that after his arrival, he was assigned to take his fingerprints. Then, he took Genja, who was in the lock-up, to the room he prepared for that task. Inside the room, he gave Genja all of his rights before taking the fingerprints and informed him that the purpose of taking his fingerprints was P a g e | 26 to compare with the fingerprints collected in the bottle of Fanta found at the crime scene. After that, he prepared a special paper for taking fingerprints and ink and a special board on which he poured ink. Then, he pressed the suspect's fingerprints on the board with ink and printed them on the special paper. Further, from the prosecution evidence on the same day, the 3rd accused led the police officers to where he threw the sword allegedly to be the weapon of murder. In his evidence, PW28 (No. E 7719 Detective Seargent Paschal) testified that on that date, he spoke with the suspect, Genja, who was ready to show them where he threw the sword used in killing the deceased. They went to Mwatulole area with ASP Bihemo, Detective Philemon and other police officers. When they arrived, they involved the ten-cell leader named Simon Mkomela. Then, 3rd accused person showed them where he threw the sword. It was outside of the fence of the deceased “site”. There were grasses and a tree. After searching at the place, they found the sword. It has blood on its sharp side and at the handle. P a g e | 27 He further testified that the suspect stated that in killing the deceased, he was injured on the left hand and bled to the sword handle. Then, he seized the sword and filed the search order, which the witnesses and the suspect signed. To that effect, he tendered; vii. The sword as Exhibit P18. viii. The search order (PF 91) dated 6 May 2023 as Exhibit P19. PW28 further testified that ASP Bihemo started collecting blood samples from the sword from both the handle and the sharp side of the sword. They returned to the police station and handed the sword to the exhibit keeper, Corporal Mang’oina. PW25 (Simon Komela Myula), ten-cell leader of Mwatulole Street, testified that on 6 May 2023, he was asked by the chairman of Mwatulole Street, Noel Ndasa, to assist the police officers who were at the houses of the deceased. P a g e | 28 He arrived at the scene at 17:30- 18:00 hours and found people and police officers. Also, there was a handcuffed suspect, whom he identified as the 3rd accused person. The suspect was asked where he threw the sword and responded it was near the road where there was a tree. Then, he led to the place, and after the search, the sword was found in the grasses. The sword found was very sharp, with format-like teeth and a seesaw. It also had blood marks and rust. Furthermore, he said he recorded his statement and signed the forms he was given to sign. At the same time, other police officers collected the blood samples. On his side, PW22 (Salala Bihemo), the Assistant Superintendent of Police, stated that on 6 May 2023, the suspect, Genja Deus, showed them where he threw the sword. After that sword was found, he wore gloves, took a swab stick, collected the remains of blood samples from the sharp side of the sword and handed it to the forensic expert, D/CPL Philemon. P a g e | 29 He testified; further, he also collected blood samples from the handle of the sword by using another swab stick and again handed them to the forensic expert for storage. Furthermore, on 7 May 2023 at 10:00 hours, a collected sample from the accused, Genja Deus Pastory, He elaborated that before collecting the sample from him, he gave him all of his rights as per rights and assurance under the DNA Act. After the suspect agreed and was ready, he signed the form, and the suspect signed it by putting a thumbprint on it. To that effect, he tendered; vii. The right and assurance form made under section 28(1) of the Human DNA Regulation Act No 8 of 2009, dated 7 May 2023, as exhibit P16. PW22 stated he proceeded to collect saliva from the suspect’s mouth by using a buccal swab. Then, he took a buccal swab and collected saliva from the suspect’s mouth. Again, according to PW28, the investigator of this case, on 7 May 2023, the suspect, Genja, led them to the place where he threw the deceased phones. They arrived in a certain toilet, a bit far from the crime P a g e | 30 scene. That toilet did not have a bowl; it was a pit latrine built with cement and connected to the chamber/ pit behind it. They informed the owner of the toilet, one Paskazia. Then, the local sanitation person (chamber master) named Kazungu entered therein and found two phones. The phones were dirt. When they were cleaned, Ndulwa Misese @Ibra, the deceased's brother, identified an iPhone and a Samsung Galaxy belonging to the deceased Milembe. In his evidence, PW2 (H4050 Detective Corporal Philemon) stated that on the morning of 7 May 2023, he was instructed by the OCD to accompany the investigators to a place where the suspect said he threw the deceased persons’ phones. When they arrived at the scene at Mwatulole Street, Genja Deus led them; he showed them the toilet, where he threw the phones. He cordoned off the area and found two people known as chamber masters (local sanitation people) breaking that latrine and entering the chamber. One entered the toilet chamber while his colleagues supported him using the rope. He found two phones inside the chamber, a Samsung and an iPhone. That person handed the phones to him, and after that, he poured the liquid P a g e | 31 over them to dry and kill bacteria. He tried to switch on those phones, but they didn’t. He further testified that at the scene, there were deceased relatives who identified the phones. After that, he filled the certificate of seizure, which he signed. Also, the suspect, the Street Charman, a relative of the deceased and other witnesses signed it. To that effect, he tendered; viii. The certificate of seizure dated 7 May 2023 as Exhibit P3. ix. Two phones labelled A and E as Exhibit P4. Later, one of the deceased’s relatives unlocked the iPhone using the "2020" as a password. After that, he packed the phones, ready to send to be sent to the laboratory for analysis. PW9 (Kazungu Mishongoli) testified on 7 May 2023, he was asked to go to the police station. At the police station, he met with Hashim, who told him there was a job to do at Mwatulole. He was further informed that a job was to enter into the toilet pit. P a g e | 32 He was given TZS 4000/= to kerosine because that job needed kerosine. He also phoned his colleague Tibe so that we could do that job together. When he arrived at Mwatulole, he met with Hashim, who was already there. At that place, there was the person who was taken from the police vehicle and handcuffed. That person pointed to the toilet pit, saying the phones were in that pit. He was given the iron bar, which he used to break the toilet chamber. After that, he entered therein after tightening the rope in his shoulders. He found the first phone, which was white. When he continued, he found the second phone, which was black. PW9 further stated that inside the pit, the dirty toilet water was at his waist level, and he used his hands to search the phones. In his evidence, PW3 (Noel Kaji Ndasa) testified that on 7 May 2023, at about 08:00 hours, he was requested by a police officer to go to the crime scene. When he arrived, he found police officers and the suspect handcuffed, who he identified to be the 3rd accused person. P a g e | 33 Then suspect told the police that he wanted to show them where the deceased phones were thrown. After that, the suspect led them to where he threw the phones. He led them from where the killing occurred to another street known as "Shangaa Uchelewe" to the premises of Martha Kiswahili. They found Anastasia Gervas, the house owner's daughter, at that house. Then, a Police officer asked the suspect to show where he hid/threw the deceased phones. The suspect revealed to the toilet sink (chamber) and said the phones were inside. Police officers found a person who entered the toilet chamber using a rope. That person found two phones inside it. At the scene, one person introduced himself as Ibra, and the brother of the deceased identified the phones as the deceased's property. The phones recovered were iPhones (Macho Matatu) and Samsung Galaxy. PW3 further stated that after that exercise, he recorded his statement and signed the certificate of seizure (exhibit P3). In her evidence, PW7 (Anastazia Gervas) stated that on 7 May 2023, around 10:00 hours, she was phoned by their neighbour who asked P a g e | 34 her what happened in their house because there were Police officers, reporters, civilians and a person who was handcuffed. She returned home, and she was asked about the killing of one Milembe by police officers. Further, she was told that the person who was handcuffed told police officers that he threw phones into their toilet pit. Then they started demolishing the toilet chamber/pit, and one person entered it and found the first phone and later the second phone. The person who was handcuffed said he was the one who threw the phones into the toilet. Their toilet did not have a door, and it did not have a toilet bowl/sink. It was her first time seeing that person who was handcuffed, and she did not remember him. The deceased brother, PW4 (Ndulwa Misese Migena@ Ibrahim), stated that on 7 May 2024, he went to Mwatulole after he was called. He found many people, police officers, and a suspect who was handcuffed. He was informed that the suspect was ready to lead them to the place where the phones belonging to my sister were thrown. They went to that place where there was a toilet pit. After it was demolished, one person P a g e | 35 entered inside and found the phones. He identified the phones, iPhone and Samsung; the phones were owned by the deceased. Furthermore, on 10 May 2023, he was called to the Police Station and gave the police the password to his iPhone. It was “2010”, and when it was entered, the phone unlocked. During the investigation, the police also conducted an identification parade for one of the suspects. On this, it was the evidence of PW14(Rejment Amon Kagoma), the Bajaj Driver, who carried the deceased and three men on 25 April 2023, who testified that on 26 April 2023, when he recorded his statement at Geita Police Station, he informed the police officers that he remembered the face of a person who sat in front of Bajaj with him; he was black, thin, and not tall. Further, on 9 May 2023, he was phoned by a police officer named Matete, who told him to report to Geta Police Station. At the police station, he was told to identify the person who was in his Bajaj with Milembe. P a g e | 36 PW14 further stated that he was taken out of the police station and found eight men standing in one line. He was told to pass in front and behind that line to see if he could identify any person in the line. He further testified that he identified the person who sat in front of Bajaj with him and requested TZS. 5000 to buy cigarettes. He identified his face. Furthermore, he was black, thin and not tall. Then he touched his shoulder. After that, he was taken inside the investigation room. After a while, he went outside again and was told to identify the person in the line of eight men. He passed in front and behind that line and identified the same person he identified earlier. The person he identified was the 3 rd accused person. He did not remember the position that person was standing in the line. The police officer who supervised the identification parade, PW16(Assistant Inspector Stephen Bagenda), testified that on 9 May 2023, at noon, he was instructed by OC-CID Geita to supervise the identification parade to identify the culprits by a witness who witnessed the crime. P a g e | 37 In doing so, he followed the procedure under PG0 332, including instructing a police officer to find the persons identical to the suspect and prepare a place for conducting the parade. He further testified that he informed the suspect that he had a right to call his relative, friend or lawyer to witness the parade. Also, he met the witness in the other area and informed him what he was supposed to do, which was to pass in front and behind the ID parade line, and if he could identify the suspect, he should touch the shoulder. After that, another police officer prepared eight persons, including the suspect, and both resembled their heights and general appearance. He informed the suspect to select the position he wanted to stand and chose the third place from the right side. Furthermore, he instructed the witness, who was in a special room and at a different location, to be taken to the parade. The witness passed in front of the line, successfully identifying the suspect by touching his shoulder. He also passed behind the line and successfully identified the suspect by touching his shoulder. After that, the witness returned to the office where he had been earlier. P a g e | 38 PW16 further testified that he asked the suspect if he was satisfied or wanted the ID parade to be repeated, and the suspect requested that the parade be repeated. After that, he informed the suspect of his rights and the place he wanted to stand in the line. The suspect stood in seventh place from the left. The witness was brought again, and he identified the suspect in front and at the back by touching his shoulder. After completion, he filed the PF 186, the identification parade form. There were two forms, one for the first ID parade, on which he listed the names of all participants, including the suspect who signed it. He also listed all participants in the 2nd ID parade, and they signed. The suspect also signed. Further, the persons on the suspect's left and right side recorded their statements. To that effect, he tendered; xii. The two identification registers as exhibit P13. PW16 also testified that Rejment Amon Kagoma was a witness to the parade, and Genja Deus was the suspect who was identified. P a g e | 39 According to the prosecution's evidence, after police officers concluded their investigation and after collecting exhibits, they sent some of the exhibits to relevant authorities for scientific and laboratory analysis. According to the exhibit keeper at Geita District Police Station, PW29 (No. G. 8517 Corporal Mang’oina), on the morning of 26 April 2023, he was handed by Ass/Insp Festo a bottle of Fanta with a liquid similar to milk (exhibit P1). He was informed it was an exhibit in connection to the case with reference No. Geita IR 1928 of 2023 for the offence of murder. They signed in the register, and he filled in the exhibit label (PF 145), indicating the particulars of the case, such as the case number, offence, type of exhibit, and where the exhibit was found. Also, he registered it in the court exhibit register with entry No. 36 of 2023 and kept it in the exhibit room. On the evening of 6 May 2023, he received the sword (exhibit P18) from Detective Sergent Paschal. He labelled and registered it in PF 16 (Court exhibit Register) as entry No. 36 and kept it in the exhibit room. On 7 May 2023, at noon, he received two phones from Detective Corporal Philemon. The iPhone was marked “E” and the Samsung “F” by investigators at the back when they found those phones. He labelled the P a g e | 40 phones, registered them in the court exhibit register and kept them in the exhibit room. He further testified that on 9 May 2023, Detective Corporal Hashim went to him with a letter requesting that the phones (iPhone and Samsung) so that they could be sent to the Laboratory for phone analysis. After signing, he handed him the phone. When Detective Corporal Hashim returned from Dar es Salaam on 19 May 2023, he had six phones labelled with the initials A, B, C, D, E, and F, including the two phones he handed him earlier. Detective Corporal Hashim told him the other phones were related to the same offence. The other phones were one Infinix and three Tekno. After that, he packed the six phones in one envelope with an exhibit label and kept them in the exhibit room until April 2024. In his evidence, PW18(G 40 Corporal Geoffrey) testified that on 12 May 2023, he was given an envelope with six phones to send to the Forensic Bureau at Police Headquarters in Dar es Salaam. When he took the phones, he signed in the Occurrence Book (OB). At the Forensic Bureau, he handed the envelope to Ass/Inspector Abdul and signed the Occurrence Book (OB). P a g e | 41 On his side, PW23 (No. G 8837 Detective Corporal Timo) testified that on 14 May 2023, he was assigned to send the exhibit to the Chief Government Chemist Laboratory in Dar es Salaam. He was given the exhibit in the envelope by the exhibit keeper in connection with the murder case with reference No. Geita/IR/ 1928/ 2023. We arrived in Dar es Salaam on the morning of 15 May 2023. At the Chief Government Chemist Laboratory, he handed the exhibit to Sadock Mboya. After he received it, he filled out the form to acknowledge that he received it. Then, both signed that form (exhibit P15). According to PW24 (No. G. 3580 Detective Corporal Hashim), testified that on 11 May 2023, he sent the special paper containing the 3 rd accused person’s fingerprints, as well as those collected at the crime scene, to the Crime Scene Fingerprints Laboratory at the Police Headquarters in Dar es Salaam. On 12 May 2023, at Dar es Salaam, he handed the exhibits to a police officer named Peter. After two or three days, he was given the results, returned to Geita, and gave the envelope with the results to the investigator of this case. P a g e | 42 The evidence of the prosecution reveals that the scientific and laboratory analyses were conducted, and later, the results were conveyed to the Geita Police. On this, the evidence was as follows; The fingerprint expert with 34 years of experience and gazetted in the Official Gazette No 207 dated 55 October 2007, PW5 (PF. 23426 Assistant Inspector Peter Joseph Ngazalo), testified that on 12 May 2023, while he was in office at Forensic Bureau (Laboratory Police Headquarters in Dar es Salaam, he received Detective Sergeant Hashim (PW24) from Geita. Detective Sergeant Hashim had the letter from the OC-CID Geita submitting the exhibits. The exhibits were; 1. X and X1, the fingerprints found and collected from the crime scene. 2. A and A1 were samples of fingerprints with the name of Genja Deus Pastory taken at Geita Police station by Sergent Hashim on 8 May 2023. Afterwards, he registered the exhibits as FB/SC/FP/47/2023 in a fingerprint register and proceeded with the analysis immediately. P a g e | 43 The letter requested that the fingerprints found at the crime scene be analysed to determine whether they were of the same person as those taken at the Police station. PW5 further testified that his analysis found that the fingerprints at the crime scene marked as X1 were identical to those marked as A-A1. It was the central finger of the right arm. In his analysis, he used a fingerprint magnifying glass to magnify the fingerprints and a digital capture system, a special machine with a fingerprint camera and a computer monitor. The camera took a picture of the fingerprint and displayed it on the screen. He further elaborated that in the next stage, the computer was used to magnify the fingerprints, display them on the screen, and analyse the characteristics of the fingers. After the analysis, he concluded that the fingerprints found at the crime scene have the same characteristics as the central finger of the right arm in the samples taken at the police station. On 15 May 2023, he prepared the report on the findings of the fingerprint analysis, indicating that the fingerprints taken at the crime scene, P a g e | 44 X1 and X2, are the same as the samples in A and A1 taken from the suspect Genja Pastory, X1 with the centre finger and X2 with the ring finger. To that effect, he tendered; xiii. The covering letter dated 15 May 2023 and the fingerprint expert report analysis as Exhibit P5. On his side, PW8 (H 3827 Detective Corporal Salum Hassan Ally), a photo and video (CCTV footage) analyst gazetted in Official Gazette No. 799 of 2020, testified that on 5 June 2023, when he was in the office, he received the exhibit from Corporal Geoffrey (PW18), which an envelope from the OC-CID of Geita. Inside the envelope, there was a letter and a flash disc. That letter requested the analysis of CCTV footage and still pictures in the flash. After that, he registered the exhibit with Laboratory No. 136/2023. On 1 August 2023, he was assigned to analyse that exhibit. In his analysis, he inserted the flash disc into the Dell computer and transferred data from the flash disc to the system/software called ANPD5. That system analyses pictures, both video and still. If a picture has an alteration or addition, the system detects it. P a g e | 45 He further testified that in his analysis, the system did not detect the alteration or addition of the flash disc. Therefore, the footage in the flash disc was genuine. PW8 also testified that he did not compare the CCTV footage, the video, and still pictures to identify the persons in the photographs because the CCTV footage was poor. The view was not good as the cameras were far from where the persons were captured. Therefore, the footage was small, and it lost its quality when he zoomed. Then, he prepared the authentication certificate for the photo. To that effect, he tendered; xiv. The covering letter dated 1 August 2023, the certificate of authentication No. 64 of 2023 and the CCTV footage report as exhibit P7. xv. Flash Disc black in colour with 2 GB make Digirich exhibit P8. The DNA expert testified as follows: PW20 (Sadock Mosses Mboya) stated that he was working at the Chief Government Chemist Laboratory Headquarters in Dodoma; prior to that, he was at the Dar es Salaam office, with experience of 6 years. P a g e | 46 On 15 May 2023, while he was with his colleague Ally Kanenda, he received four sealed samples from a police officer named Timo Grayson (PW23) from Geita Police. The samples were in the envelopes labelled A, B, C and D. Sample A was a blood swab from the deceased Milembe Seleman. Sample B was the blood swab from the sword. Sample C was the blood swab from the sword handle. Sample D was the buccal swab from the suspect, whom he remembered one name of Deus. After that, he registered the samples in the exhibit register with Reg No. HN0. HQ, 023-01032, and prepared a sample receipt notification, which he signed. D /CPL Timo Grayson also signed to indicate that they received the samples. To that effect, he tendered; xvi. Sample receipt notification (form No GCLA 01) dated 15 May 2023 as exhibit P15. After that, his colleague Ally Kanenda proceeded to analyse the samples. P a g e | 47 In his evidence, PW26 (Ally Omary Kanenda) testified that he was a chemist stationed at the Chief Government Chemist Laboratory in Dar es Salaam with seven (7) years of experience. On 15 May 2023, they received a sealed exhibit from OC-CID of Geita accompanied by a letter and PF 180 for File No. GTE/IR/1928/2023. The letter and PF 180 requested them to conduct laboratory analysis on DNA and prepare a report. The exhibits they received were; Exhibit "A" blood sample from the deceased Milembe Suleiman. Exhibit "B" blood sample from the sword. Exhibit "C" blood sample from the handle of the sword and Exhibit “D” buccal swab from the suspect Genja Deus. Then, they registered the exhibit in the laboratory as HQ 023- 01032 and proceeded with the analysis. First, he conducted the preliminary analysis of Exhibits A, B, and C and then proceeded with DNA analysis for all exhibits in four stages as follows; First, he extracted DNA from each sample (DNA extraction). Second, he quantified the DNA to discover the quantity of DNA. P a g e | 48 Third, he amplified the DNA and Fourth, he detected the DNA in order to identify the DNA. After that, he interpreted the results, and they were as follows: In the preliminary analysis, he discovered that exhibit “A” was human blood. Exhibits “B” and “C” also prove to be human blood. When interpreting the DNA profile, he discovered that exhibits “A” and “B” were the DNA profiles of one female person. Exhibit “C” was the DNA profile of one male person and Exhibit “D” was a DNA profile of one male person. After that, he compared the DNA profiles and discovered that the DNA profile of exhibit “A” relates to the DNA profile of exhibit “B.” Meanwhile, the DNA profile of exhibit “C” relates to the DNA profile of exhibit “D.” After that comparison, he concluded his analysis and prepared a report. xvii. The Forensic DNA Profiling report dated 16 May 2023 as exhibit P17. P a g e | 49 PW26 stated that in his analysis, he used rapid tests to identify the blood and Chelex 100 chemicals in DNA extraction. For DNA quantification, he used a Real-Time PCR machine. For DNA amplification, he used a Conventional PCR machine. In the last stage of identification, he used the Genetic Analyzer machine. In the end, PW28 (No. E 7719 Detective Seargent Paschal), the investigator of this case, stated that 1ˢᵗ accused was charged because she was the one who hired people to kill the deceased. She spoke with Safari Bundala Lubingo to find the killers to kill Milembe Suleman. Safari Bundala communicated with the 4ᵗʰ accused to search for the 3ʳᵈ accused. After a few days, the 3ʳᵈ accused went to the 4ᵗʰ accused person, and the 4ᵗʰ accused revealed to him that the 2nd accused phoned him and he wanted to meet with him (3ʳᵈ accused). The 3rd accused did not have a phone. Therefore, he used the 4th accused phone to communicate with the 2nd accused. After communication, the 3ʳᵈ accused told the 4th accused that the 2nd accused called him at Geita and there was a job. P a g e | 50 Later, the 3rd accused communicated with the 2nd accused using the 4ᵗʰ accused phone, and money was sent through an agent as fare to Geita. The 3rd accused person gave the 4th accused part of that money, TZS.15,000/=. The 3rd and 4th accused persons arrived at Geita and met the 2 nd accused near Mzee Kisesa Guest House. The 2 nd and 3rd accused persons went aside to talk and left the 4th accused alone. Then the 2nd accused told the 3rd that there was a rich person at Mwanza who instructed him to find people to kill Milembe. He mentioned a rich person named Dayfath. Further, the 2nd accused said the person supposed to be killed would arrive soon and after a while, Milembe arrived with a vehicle make Alphard. He showed them the target, then he rented a room for them and left for Butundwe Village. They failed to execute the killing because of the environment of Mzee Guest House. Later, the 3ʳᵈ and 4th left to their homes. Later, 3ʳᵈ accused communicated with the 2nd accused to find other persons to do that job. Then, 3rd accused came to Geita to meet the 2ⁿᵈ accused. That time, the 4ᵗʰ accused was left. P a g e | 51 The 2nd and 3rd accused succeeded in getting two other people, Masumbuko@ Sumbu and Buchuchu. Also, they communicated with the Dayfath, and they met at Sengerema to plan the killing. The agreed payment was TZS. 2,600,000 but paid in instalments. Dayfath told them that in order to succeed in killing Milembe, one person should go to Usagara Mwanza because each Monday, Milembe was travelling from Mwanza to Geita. Therefore, the person should ask for a lift in the deceased car and should tell the deceased that he was a miner and he was using witch doctors in this activity. The 3ʳᵈ accused went and succeeded in getting a lift, and they exchanged phone numbers with the deceased. Later, they were informed that the deceased had moved to California Lodge. After a few days, the deceased phoned the 3 rd accused, requesting his witch doctor to perform rituals (kuzindika) at her houses located at Mwatulole. Then, 3ʳᵈ accused communicated with the 2nd accused, Buchuchu and Masumbuko. On 25 April 2023, the deceased communicated with the 3 rd accused, telling him to go to California Lodge so that they could go to her houses. In P a g e | 52 the evening, the 3rd accused, Buchuchu and Masumbiko, went to California Lodge, and they were welcomed in room No. 26, where the deceased was staying. After a while, they both left using Bajaj. When they arrived at Shilabela area, Buchuchu, Masumbuko and the 3ʳᵈ accused dropped off from Bajaj with the promise to communicate with the deceased later. Milembe continued to her "site" and met with her construction workers. Later, the workers left, and Milembe phoned the 3rd accused and his colleagues. When they arrived, they instructed her to bury the medicines. Then, the 3ʳᵈ accused took a sword and killed Milembe. Then, he communicated with the 1st and 2nd accused and requested TZS. 800,000/=, which was the remaining amount of payment. Afterwards, they left for Sengerema, at Nyakalilo, where Bachuchu and Masumbuko lived. The 3rd accused said he went to the traditional healer, Cecilia Machemu, to take a traditional bath to cleanse his body. P a g e | 53 In their defence, the 1st, 2nd,3rd and 4th accused persons testified under oath as DW1, DW2, DW3 and DW4, respectively, categorically denied having committed the offence charged. DW1, Dayfath Suleiman Maunga, testified that before her arrest, she was living at Usagara Mwanza at the house of the deceased Milembe Suleman, who was working at Geita Gold Mining. She was employed by her in the cosmetic shop located at Buhongwa and her business of lending money for interest. The deceased employed her orally for the payment of TZS. 250,000 per month. She was living with the deceased, her mother, housemaid, male cleaner, her child and her lover, Kidola, who was visiting frequently. She said it was not true that she had a sexual relationship with Milembe Seleman because that was against her religion. Furthermore, she testified that Milembe died on 25 April 2023 and did not participate in her killing, and she did not have any reason to kill her. Before this case, she did not know the co-accused persons. P a g e | 54 After the death of Milembe, she continued to live in the deceased house. On 28 April 2023, she attended the funeral of Milembe at Lwamgasa village with the relatives of the deceased, including Ndulwa Misese @ Ibra and others. She stated that Ndulwa Misese was the deceased's brother. Ndulwa Misese and his sister Pendo called her and requested the deceased money TZS. 20,000,000/= from the lending business, which he claimed she had that money. When she told them she had no money because the deceased was operating her business herself and her job was only to send money to the clients, Ibra did not believe it. Other relatives of the deceased promised to hold a family meeting at the deceased's house on 1 May 2023 after the funeral. On the morning of 1 May 2023, she was at Usagara, but Ndulwa Misese was not around. When they started the meeting with the deceased relatives who were present, suddenly, two vehicles with police officers in uniforms and others not. They were with Ndulwa Misese. P a g e | 55 The police officers were males, and they arrested her together with Musa Fundikira without being told the reason. Mussa Fundikira was also the deceased relative. She said it was not true that she was arrested by the female police officers. The house was searched, including the deceased room and her room. After that, they took the deceased laptop and documents. Also, they took her phones to make OPPO A3S and ITEL, and her certificates. Furthermore, she stated that Corporal Darius was not present when she was arrested. After the arrest, they were then taken to Nyamagana Police Station, and Ndulwa Misese was present. They were interrogated regarding hiding the deceased money from her lending business. She told them the deceased did not leave any money to her because she was operating that business herself. After a short period, one policeman came with Ndulwa Misese, and they called one of the police officers who was interrogating her and went outside. After a while, they returned, and they told them that they participated in the killing of Milembe Seleman. But she denied it. P a g e | 56 On 2 May 2023, she was sent to Nyakato Police Station. On 4 May 2023, she was sent to Chato Police Station and, on 5 May 2023, to Katoro police station. On 8 May 2023, she was brought to Geita Police Station; on the same date, at noon, she was taken from the lock-up to the place called “Bwalo”. At that place, there were more than four male police officers. There was a table, two chairs and a spade handle (mpini). She was interrogated regarding the killing of Milembe Suleiman, but she told them she did not participate in the killing. During interrogation, she told the police officers about her personal life. After that, she was returned to the lockup. After a while, she was retaken to “bwalo”, and found the papers on the table. She was told to sign the papers but disagreed because she did not know what was written. She was beaten on her ribs, legs and hands by using a spade, but she did not sign and continued to resist. DW1 further stated that she did not record her statement at Nyamagana Police Station, and she did not confess to participating in the killing of Milembe. P a g e | 57 She concluded by testifying that she never communicated with the co- accused because she did not know them. Police officers took her phones but did not tender that communication to prove it. She never met with Safari anywhere, and she did not know him. In his defence, DW2, Safari Bundala Lubingo stated that before his arrest, he was living at Chigunga Street in Butundwe as a peasant. He was arrested on 3 May 2023 between 10:00 and 11:00 hours at his home in Chigunga and brought to Geita police station. Furthermore, he testified that he did not indeed meet Dayfath at Mwanza. He did not know or even communicate with her; no evidence was brought before this court to prove that he communicated with her. Further, he did not know Mussa and Genja, and he never communicated with them to plan to kill Milembe Seleman. The prosecution did not tender that evidence of communication. He said he never brought Genja and Mussa to Geita and paid for their accommodation at Kisesa Lodge. He did not know that lodge, and the prosecution did not tender the guest book to prove that fact. P a g e | 58 He further stated that he had never communicated with Genja, and he requested him to find two killers, Buchuchu and Masumbuko. He did not know either them or the deceased. The prosecution did not tender any communication to prove it. He also never met with Dayfath, Genja, Buchuchu and Masumbuko at Sengerema and agreed on the payment of TZS.2,600,000 as the price of killing Milembe. Further, he did not know them or communicate with them. The prosecution also failed to tender any communication as evidence in Court. Regarding Genja's cautioned statement, he said it was not, and he was not present when he was interrogated. He did not know him and did not know where he was arrested and interrogated. Regarding sending fare for Genja and Mussa, he said that was not true because he did not know them, and the prosecution failed to tender that phone money transaction. DW3 Genja Deus Pastory testified that he was a fisherman at Ilenza Village before his arrest. P a g e | 59 On the evening of 5 May 2023, around 19:00, he was at the barber shop/salon in Ilenza village centre when four people arrested and handcuffed him. He was taken to the Nyakalilo police station for allegedly stealing fishing nets (traps). On 6 May 2023, he was transported to Sengerema Police Station. At Sengerema, he was asked about the killing of a woman by the name of Milembe in Geita. He responded that he neither knew nor killed Milembe. After that, he was asked where he lived, my name, age, and job. Then, he was forced to admit to knowing that murder incident. DW3 further stated that he was taken to an office/ room where there were police officers. There was a table and three chairs. He was interrogated and hanged between two stools, but he did not confess. He started he was undressed, tortured and beaten in my private parts with a screwdriver until he fainted. When he woke up, he was given paper and a pen to sign on the papers. When he refused, he was beaten again, but he told them he did not know how to write. He was told to put his thumbprint but did not give or record any statement. P a g e | 60 On the same date, around 15:00 hours, he was brought to Geita Police Station and detained. Further, he stated that it was not true that my buccal samples had been collected for analysis or that on 6 May 2023, he led police officers where there was a sword. That day in lock-up. On the morning of 7 May 2023, he was taken to a certain place near a certain road where there were grasses. He was told to search and saw a machete. He was asked if he knew that machete, but he responded that he did not know it or that place. He was told to take that machete, and he was taken back to the police station. On the same day, in the evening, he was taken to a certain place where there was a house nearby. He was told to bend. There were many people and police officers. Then, police officers and these people went to the toilet, but he did not witness anything. After 15 minutes, the police officers returned with two mobile phones. They asked if he knew those phones, but he said he did not. On 9 May 2023, he did not participate in the ID parade. That day, he was called from the lockup. When he was at the door, he saw a person and P a g e | 61 a police officer. He heard the police officer tell that person, “Huyo ndiyo Genja”. Further, it was not true that he stayed at Kisesa Lodge or visited California Lodge on 25 April 2023. He said he did not know those lodges. Also, it was not true that he met with Dayfath and Safari at Sengerema because he did not know them. He also said he never used the phone belonging to Mussa because he did not know him or communicate with Safari. The prosecution failed to bring any evidence. Also, it was not true that he communicated with Milembe because he did not know her. He concluded by testifying that it was not true that he injured his left hand because it did not even have a scar. The last defence witness, DW4, Mussa Ally Pastory, stated that he lived at Bulyanhulu Kakola Shinyanga as a peasant before his arrest. He graduated from St Augustine Tabora Campus in 2017 with a Bachelor in Education. P a g e | 62 He stated that he did not have any relation with Safari Bundala or Genja and that he had never met with other accused persons before his arrest. The last time he had a phone was 25 December 2022, when it was lost at a family gathering. Since then, he has never owned a phone. DW4 further stated that he did not know Kisesa Lodge and had never visited or stayed there. Further, he had never met or heard of the deceased Milembe. From January 2023 until his arrest, he did not travel anywhere; therefore, he never travelled to Sengerema or participated in any planning meetings. After his arrest, he did not mention any of the accused and was not interrogated at the police station. After the closure of the defence case, parties did not file final submissions; therefore, having considered the evidence on record, the main issue before this Court for determination is; “Accused persons are guilty of the murder of the deceased Milembe Seleman Hungwe”. P a g e | 63 Thus, the prosecution has to prove the offence of murder under sections 196 and 197 of the Penal Code. However, in proving the offence, the following ingredients must be established cumulatively and proved beyond reasonable doubt. I term these ingredients as sub-issues as follows; One, whether the deceased named in the charge actually died. Two, whether the death was as a result of an unlawful act (unnatural cause). Third, whether it was the accused persons who actually caused the death of the deceased and, Fourth, whether the killing of the deceased was with malice aforethought. In discharging the above duty, it is essential to outline some of the important principles as far as the evidence in this case is concerned. First, is on the onus and standard of proof in criminal cases. In criminal cases, the onus is always on the prosecution to prove the case and never shifts away from the prosecution. This is the cardinal principle of criminal P a g e | 64 law: the duty of proving the charge against an accused person always lies on the prosecution. See Galus Kitaya vs. The Republic, Criminal Appeal No. 196 of 2015 (Tanzlii). No duty is cast on the side of the accused person to establish his innocence. Second, the standard of proof in criminal cases is that which is beyond reasonable doubt. See Lameck Gamaliel and another vs. The Republic, Criminal Appeal No. 210 of 2012, CAT (unreported). Therefore, in case of doubts, the benefit must be on the accused side. Lastly, it is on the duty of defence in criminal trials. It is trite that the general duty of the accused person in criminal matters is only to raise doubt against the prosecution case and not otherwise. See D.P.P vs. Ngusa Kejela @ Mtangi and another, Criminal Appeal No. 276 of 2017, CAT (Tanzlii). In determining the main issue, I will start with the first sub-issue: whether the deceased named in the charge sheet actually died. There is no dispute that Milembe Seleman Hungwe died. There is no dispute that when her body was recovered, it had injuries on the head, neck, and hands, and she was lifeless. This was confirmed by the medical P a g e | 65 practitioner PW6 in exhibit P6, which states that the cause of death was a haemorrhage caused by excessive bleeding. Further, as it may be noted from the testimony of PW4, the brother of the deceased and PW3, the Chairman of Mwatulole Street, that the body found inside one of the unfinished houses within the compound of four unfinished houses was that of Milembe Seleman Hungwe. They were able to recognise the body when they went to the crime scene. In addition, on 27 April 2023, PW15, the daughter of the deceased, identified the lifeless body of her mother, Milembe Seleman Hungwe, in a casket before she was buried on 29 April 2023. Therefore, it is an established fact that Milembe Seleman Hungwe was dead; thus, the first issue is answered in the affirmative. Reverting to the second sub-issue of whether the death was a result of an unlawful act (unnatural cause), this should not detain me long based on what was testified by the witnesses. P a g e | 66 PW6, the medical doctor who conducted an autopsy and prepared the post-mortem report (Exhibit P6), testified that the deceased cause of death was a haemorrhage caused by injuries inflicted by a sharp object. During his medical examination of the deceased body, he found that the right wrist was cut and separated from the arm; on the left arm, only two fingers remained because three fingers were amputated and removed. Extensive cut wound at the back of the neck to the extent it reached the bone. She had a large injury on her head. On her face on the left side, there was also a cut injury. The post-mortem report (exhibit P6) indicates that cut wounds in the head and neck were 14, 8 and 6 centimetres deep. The right mid-arm was separated from the body, three fingers in the left arm were amputated and not found and a cut wound of 4 centimetres on the shoulder. The facts above indicated that the deceased met her death very violently, brutally and in a barbaric way. The Court of Appeal in Chandrakant Joshubhai Patel vs. Republic, Criminal Appeal No. 13 of 1989 (unreported) branded a barbaric killing such as this in the following words; P a g e | 67 “…the killing was a daring foul deed by a man with steel nerves. It was as macabre as it was eerie”. The holding above may be equally applied in this case because of injuries found in the deceased body; the parts of the body of the deceased where the blows of the attacker were directed at or inflicted indicate that the person who did it must have steel nerves. Therefore, from the evidence, it is certain that the deceased death was unnaturally caused; consequently, she was murdered. Coming to the third sub-issue, the question is who killed the deceased Milembe Seleman Hungwe. In this case, there is no dispute that there is no eyewitness who witnessed the killing of the deceased. From the evidence the prosecution relied on the following evidence: One, DNA expert report analysis. Two, confession leading to discoveries Three, fingerprint expert report analysis. Four, CCTV footage report P a g e | 68 Five, an identification parade Six cautioned statements of the 1st and 3rd accused persons. Seven, circumstantial evidence. Therefore, I will analyse the above issues one after another, starting with DNA (Deoxyribonucleic acid). As indicated earlier from the prosecution evidence, according to PW1, on 26 May 2023, he collected blood from the deceased by using a swab stick. He handed the sample to H. 4050 Detective Corporal Philemon. On 7 May 2023, the 3rd accused person led the police officer to the weapon of murder, which was a sword. PW22 collected the blood sample from both the sharp side and from the handle. He collected blood from the handle because the investigator (PW28) said that the 3 rd accused told him he had injured himself on the hand and bled at the time of the commission of the offence. On the same day, the 3rd accused was taken the buccal swab (saliva sample) by PW22. P a g e | 69 During cross-examination, when PW1 was asked by the counsel for the 1st accused person, he responded that as an Assistant Inspector of Police, he was allowed to collect DNA samples. Therefore, first, it is important to scrutinise what the law says about who may collect DNA samples. Section 24 of the DNA Act, 2009 “24. The samples for Human DNA shall be collected by sampling officers and analyzed by the Human DNA Laboratory of the Government Chemist Laboratory Agency or other designated laboratory for Human DNA”. (Emphasis provided) Under section 3 of the same Act, "sampling officer" has been defined to mean an officer appointed and gazetted to collect samples for Human DNA under section 14; Further, section 14 (1) and (2) reads that; 1. The Regulator shall, on the advice of the Technical Committee, appoint sampling officers and cause their names to be published in the Gazette. 2. Without prejudice to sub-section (1), any medical practitioner or police officer shall be a sampling officer under this Act”. (Emphasis provided) P a g e | 70 Therefore, as per the law, PW1 was allowed to collect DNA samples. After were collected, the samples were sent to the Chief Government Chemist Laboratory by PW23 on 15 May 2023 and were received at the Laboratory by PW20, a chemist. According to PW23, he was given the sealed sample to send to the laboratory. After receiving, he issued to PW23 Exhibit P15 [Sample receipt notification (form No. GCLA 01)] to acknowledge the receipt of the exhibit. What he received were; Sample A was a blood swab from the deceased Milembe Seleman. Sample B was the blood swab from the sword. Sample C was the blood swab from the sword handle. Sample D was the buccal swab from the suspect, whom he remembered name of Deus. At this juncture, it is very important to check for the chain of custody from collecting the samples until they are transported for analysis. In Chacha Jeremiah Murimi and three Others vs. Republic, P a g e | 71 Criminal Appeal No. 551 of 2015, CAT (unreported) that: - "In establishing chain of custody, we are convinced that the most accurate method is on documentation as stated in Paulo Maduka and Others vs. R, Criminal Appeal No. 110 of 2007 and followed in Makoye Samwel @ Kashinje and Kashindye Bundala, Criminal Appeal No. 32 of 2014 cases (both unreported). However, documentation will not be the only requirement in dealing with exhibits. An exhibit will not fail the test merely because there was no documentation. Other factors have to be looked at depending on the prevailing circumstances in every particular case. For instance, in cases relating to items which cannot change hands easily and therefore not easy to tamper with, the principle laid down in Paulo Maduka (supra) would be relaxed." Therefore, the key issue here is whether or not the prosecution evidence maintained the chain of custody by documentary and/ or oral evidence. Having gone through the prosecution evidence, the chain from collection up to when the samples were sent to CGC was maintained orally and by documentation. PW1 testified on how he collected and handed to H. 4050 Detective Corporal Philemon for storing the sample. PW22 also testified how he collected the sample and handed it to forensic expert Detective Corporal Philemon. P a g e | 72 Further, PW23 testified on how he transported the samples and handed them to PW20, who acknowledged receiving them through exhibit P15. Therefore, from the above narration and looking at the totality of evidence on record, the sequence of events as narrated and demonstrated above and borne out by the record does not suggest any chance of the sample being tempered. Further, by the nature of the exhibit, which involved blood and saliva, and how it was handled, it was not easy to be tempered with. In conducting analysis of the samples, the evidence, according to PW26, the chemist who performed analysis on the samples and his report (exhibit P17), found that exhibits “B” and “C” prove to be human blood. Further, he discovered that exhibits “A” and “B” were the DNA profiles of one female person. Also, exhibits “C” and “D” were the DNA profiles of one male person and concluded that the DNA profile of exhibit “A” relates to the DNA profile of exhibit “B.” Meanwhile, the DNA profile of exhibit “C” relates to the DNA profile of exhibit “D.” That means the blood collected by PW1 from the deceased body matches with the blood collected by PW22 on the sharp side of the sword. P a g e | 73 On the other hand, the blood collected by PW22 from the handle of the sword matches with buccal swabs collected from the 3rd accused person. The question is, what is the weight and validity of the DNA evidence? On this, there is a plethora of authority on the subject by the Court of Appeal. In Joseph Lugata vs. Republic, Criminal Appeal No. 317 of 2009 (Tanzlii), the Court of Appeal held that “In the present case PW5 did not give the random occurrence ratio for Tanzania. The reliance was just on the prosecutor's fallacy that DNA is one out of a million. But even if the random occurrence ratio had been given, we agree with the appellant and we uphold his second ground of appeal, that that is not conclusive proof that the appellant was the person who murdered the deceased. It is always essential to have some other independent evidence on which to secure conviction apart from DNA”. The same position was also held in Mboje Mawe and Others vs. Republic, Criminal Appeal No. 86 of 2010 (Tanzlii) where the Court stated that; “It is for this reason that in the circumstances of this case, it is safe to adopt this Court's approach in Lugata and have some other independent evidence apart from DNA. In saying so, we P a g e | 74 should not be understood to mean that we are ruling out DNA evidence in our jurisprudence”. The above-cited cases indicated that though DNA is reliable but, because of the random occurrence ratio, at least there must be another evidence to corroborate DNA evidence. In this case, apart from the DNA, there are other pieces of evidence; therefore, the question is whether such other evidence may corroborate the DNA evidence or not. This leads me to the second issue regarding the evidence leading to discovery. According to the prosecution witnesses, after the 3 rd accused person was interrogated and brought to Geita, he led the police officers to where he threw/ hid the weapon (sword) which was used in the commission of the offence (exhibit P18) and where he threw the deceased phones (exhibit P). The evidence regarding the sword was testified by PW22, PW28, and as well PW25, an independent witness who signed the search order (exhibit P19). P a g e | 75 On the other hand, the evidence regarding the phones was testified by PW2, PW28 together with PW3, PW4 and PW9 independent witnesses who signed the search order (exhibit P3). Also, there was an eyewitness, PW7. Both witnesses testified that he was the 3rd accused person who led to the discovery of the sword (exhibit 19), in which the blood was collected and sent for DNA analysis. Again, on the following day, the 3 rd accused person led the police officers to the place where he threw the deceased phones (exhibit P4). PW2 tendered two phones (exhibit P4), but later, the witnesses who witnessed the search and PW4, the brother of the deceased, identified only one phone. In my view, despite that fact, since the 3rd accused led to the discovery of that one phone, an iPhone, which was proved to be the property of the deceased, then that anomaly cannot erode the fact that one of the phones belonged to the deceased person was found and it was the 3rd accused person who led to that discovery. Therefore, from above, the confession of the 3 rd accused person regarding the phones and the sword led to the discovery of the objects in P a g e | 76 connection with the offence; the weapon of murder and the phone belonged to the deceased person. On this, there is a litany of the Court of Appeal authorities that confession leading to discovery is reliable evidence against the accused. See Chamuriho Kirenge @ Chamuriho Julias vs. Republic, Criminal Appeal No. 597 of 2017 (Tanzlii). This is also provided in section 31 of the Tanzania Evidence Act, which reads that; “31. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant”. Further, when the 3rd accused led the police officers to the places where the exhibits were discovered, the procedure of search was followed by involving an independent witness during the search, as evidenced in exhibits P3 and P19. Therefore, the search and seizure also were aligned with Section 38 (3) of the CPA. See Jibril Okash Ahmed vs. The Republic, P a g e | 77 Criminal Appeal No. 331 of 2017 (Tanzlii), when the Court of Appeal discussed the applicability of 38(3) of the CPA. Also, the search orders (exhibit P3 and P19) were admitted without any objection from the defence side. In both documents, it is indicated that the 3rd accused signed the same. In Anna Moises Chissano vs. The Republic, Criminal Appeal No. 273 of 2019(Tanzlii), it was held that; “An accused is expected to challenge a witness's testimony by way of cross-examination or object to the tendering of a documentary or physical exhibit during the trial. Once certain evidence goes into the record unchallenged, it is, in law, taken to have been admitted by the accused”. As alluded to already, the documents were not objected to, and the cross-examination was not based on the validity of the document and the issue of the 3rd accused signing the same. For that reason, the accused person admitted that evidence, which was admitted unchallenged. Therefore, there is evidence that the 3rd person led the police officers to the discovery of the objects in connection with the offence of murder, and that evidence is watertight. P a g e | 78 Regarding the issue of fingerprints, it is the evidence of PW5, the fingerprint expert, that, after receiving the exhibits from Detective Sergeant Hashim. In his analysis, he concluded that the fingerprints found at the crime scene had the same characteristics as the central finger of the right arm in the samples taken at the police station. The Court of Appeal in Muganyizi Peter Michael and Others vs. Republic, Criminal Appeal No. 144 of 2020 (Tanzlii), it was held that; “It is common ground that no two persons, including twins, have ever been found to have the same fingerprints. It is also scientifically proven that fingerprints also vary between one's own fingers. A person's fingerprints do not change over time. The friction ridges that create fingerprints are formed inside the womb and grow proportionally as the baby grows”. Therefore, from PW5 evidence, the fingerprints collected on 26 April 2023 from a bottle of Fanta found at the crime scene match the fingerprint samples printed/ collected from the 3rd accused fingers. Thus, since there is no possibility of two or more people having the same fingerprints, then the fingerprint expert report analysis (Exhibit P5). P a g e | 79 Further, by their nature, fingerprint samples are not easy to temper from the collection from the crime scene up to the stage of sending the same for analysis. Therefore, the evidence of fingerprints, in this case, is watertight and reliable. The third sub-issue regarding CCTV footage should not detain me long because, according to the expert's evidence, the persons captured by the CCTV camera were unidentifiable because the CCTV footage was poor. The view was not good as the cameras were far from the captured persons. And when he tried to zoom, the footage lost its quality. Therefore, that kind of evidence is weak and unreliable in this case. The prosecution also relied on the evidence of the identification parade in respect of the 3rd accused person. Under the supervision of PW16, the ID parade was conducted, leading to the identification of the 3rd accused person by a crucial witness. This witness (PW14), the Bajaj driver, positively identified the 3rd accused person as the individual he transported with the deceased on 26 April 2023. P a g e | 80 This also should not detain me long because the evidence indicated that the ID parade was conducted in strict accordance with PGO 232 and as per the instruction given in the cases of Republic vs XC 7535 PC Venance Mbuta (2002) TLR 48 and Saidi Lubinza and four others vs Republic, Criminal Appeals No 24-28 of 2012. However, in my view, the ID parade is of little evidential value in this case. By looking at the purpose of the ID parade as per Joel Watson @Ras vs. Republic, Criminal Appeal No 143 of 2010 (unreported) where it was held that; “The purpose of an identification parade is, inter alia, to enable a witness to identify his/her assailant whom he/she has not seen or known before the incident”. In this case, PW14 neither saw the suspect commit the offence nor was there any evidence that the suspect was the last person to be seen with the deceased. According to PW14’s evidence, he dropped the suspect at Shilabela area and proceeded with the deceased to Mwatulole where the deceased met another person. P a g e | 81 Therefore, in this case, the evidence of the ID parade is very remote and of little evidential value. On the issue of cautioned statements, I will start with the cautioned statement of the 3rd accused person. During the prosecution, the 3rd accused cautioned statement was objected to for contravening section 57 (3) of the CPA. Therefore, it was not retracted or repudiated. However, the statement was challenged by cross- examination, and in his defence, he stated that he had never recorded that statement. In Anna Moises Chisano (Supra), the Court of Appeal held that the criteria to challenge the tendering of evidence is not only based on the failure to object but also on the failure to cross-examine. Therefore, since the 3rd accused counsel managed to cross-examine that cautioned statement, the statement needs to be corroborated before the court decides to rely on it or not. In the Nuru s/o Venevas and others vs. Republic, Criminal Appeal No.431 of 2021 (Tanzlii), it was held that; P a g e | 82 “It is trite principle that confession evidence which has been retracted or repudiated cannot be acted upon to found conviction, and it is always desirable to look for corroboration in support of a confession which has been repudiated or retracted.” Therefore, the question is whether the 3rd accused person's cautioned statement was corroborated. On this, it is first essential to look at the content of the statement. Having gone through the 3rd accused cautioned statement (exhibit P12), I found that he confessed to killing the deceased, narrated the plans to kill her and revealed where he threw the murder weapon (exhibit P18) and the deceased phones after the killing. That was on 5 May 2023, and he recorded his statement at Nyakalilo Police Station within Sengerema District in Mwanza. On 6 May 2023, he was brought to Geita and led the police to the discovery of that weapon (exhibit P18) and one of the phones in exhibit P4. Therefore, he leads to the discovery of the weapon of murder and the phone of the deceased person. P a g e | 83 Further, there was scientific evidence from DNA (exhibit P17) and fingerprint (exhibit P5) experts incriminating the 3rd accused person. That scientific evidence indicated that the blood in the handle of the sword (murder weapon), which the 3rd accused led the police officers to its discovery, was the blood of the 3rd accused person. Further, the fingerprints collected from the crime scene in a bottle of Fanta proved to be of the 3rd accused person. Therefore, the cautioned statement of the 3 rd accused person was corroborated with other independent evidence. Based on the holding of the above-cited case, though in his defence, the 3rd accused person denied having recorded his cautioned statement and that he was beaten, his allegation remains unsubstantiated as the law requires. Thus, I accorded it the weight it deserved. In that cautioned statement, the 3rd accused confessed that it was he who actually attacked and inflicted the deceased. It was recorded that; “Alipochuchumaa tu nilimkata na lile jambia kichwani akaanza kupiga kelele Mzee unaniua, nikaendelea kumkata mikononi alipokuwa anakinga alipoanguka chini nilimkata vizuri kichwani P a g e | 84 akawa anagaragara tu. Buchuchu s/o Lugodisha alichukua mkoba na simu mbili kubwa tukatoka nje kidogo nikaficha jambia karibia na mti, tukaendelea kidogo tukavuka Barabara tukaona choo Buchuchu s/o Lugodisha akaenda kutupa simu zile chooni hapo”. Therefore, the 3rd accused's confession was corroborated by fingerprint evidence, DNA evidence, and evidence that he led to the discovery of objects in connection with the case. Up to this point, the prosecution evidence pointed to the 3 rd accused person; however, this matter involves four accused persons who are alleged to have carried out a common intention of killing the deceased. Therefore, the question is, what about other accused persons? In determination, I will start with the 1st and 2nd accused persons. For the 1st accused person, the evidence incriminating her is her cautioned statement (exhibit P9) and the confession of the co-accused statement, i.e., the 3rd accused person. On the other hand, the evidence incriminating the 2nd accused person is the confessions of the co-accused persons. According to PW11, the police officer who recorded 1st accused statement and what was contained in the statement itself. That statement P a g e | 85 was recorded on 1 May 2023 at Nyamagana Police Station Mwanza at 19:00 hours after her arrest on the same day at 18:00 hours for the suspicion of involvement in the murder. It was recorded in her statement that she planned the killing by finding the killers because the deceased, who they were living together as lovers, was mistreating and beating her. Therefore, she started to search and find the killers to get rid of her. It was recorded that; At page 5 “Mimi nilikuwa ninaishi na na marehemu Milembe Selemani Hungwa nikiwa kama mke lakini siku zilivyokuwa zinasonga marehemu alikuwa ananinyanyasa hivyo nilikuwa nahitaji kuondoka lakini ilishindikana ndipo mimi nilimtamfuta Safari Lubingo ambaye nilikuwa ninafanya nae mawasiliano kupitia namba ya simu 0766543990 ambaye pia aliniambia anaishi Butundwe Geita. …………………………………. Hivyo baada ya mimi kuwasiliana na Safari Bundala Lubingo nilimuambia kuwa hapo nyumbani ninaishi na wifi yangu ambaye ni dada wa mume wangu ambaye yupo Afrika kusini P a g e | 86 Hivyo ananibania kutumia mali zangu na mume wangu Hivyo nahitaji tupate dawa aondoke. Lakini njia hiyo ilishindikana. Safari Bundala Lubingo akaniambia kama njia za waganga zimeshindikana ataniambia njia nyingine. Hivyo mwezi huo huo 3 mwaka 2023 Safari Bundala Lubingo Alinipigia simu kuwa amepata mtu wa kushirikiana nae wafanye njia ya short cut……………….. Nilipomuuliza Safari Bundala Lubingo short cut nini? Yeye akajibu maana yake ni kuua mimi nikamwambia sawa”. In the statement, it was indicated that was when the plans to kill the deceased were initiated. Later, Safari Lubingo introduced Masumbuko@ Sumbu, Genja (3rd accused person) and Mussa to the 1 st accused, who demanded money to execute the killing plan. The record shows that the cautioned statement of the 1 st accused was admitted after trial within a trial. However, her counsel strongly objected to its admission, attacked during cross-examination, and the accused person denied it in the defence case. In principle, the 1st accused person denied having a record or signing any statement despite being beaten. P a g e | 87 Therefore, as the law requires in such a situation, it is always desirable to look for corroboration to support a confession. See Nuru s/o Venevas and others (Supra) and Tuwamoi vs. Uganda [1967] E. A, where it was held that; “As a matter of practice or prudence, the trial court should direct Itself that It is dangerous to act upon a statement which has been retracted in the absence of collaboration in the same material particular, but that the court might do so if it is fully satisfied in the circumstance of the case that the confession must be true. …the court will only act on the confession statement if corroborated in material particulars by independent evidence... Therefore, what can be gleaned from the two cited cases above is that first, it is crucial to look for corroboration once the statement is repudiated or retracted. Second, there must be independent evidence to corroborate the repudiated or retracted statement. Regarding corroborative evidence in Pascal Kitigwa vs. Republic [1994] T.L.R 65, it was held that; P a g e | 88 "Corroborative evidence may be circumstantial and may well come from the words or conduct of the accused and, in this case, the appellant independently corroborated the evidence of the co-accused." Therefore, corroborative evidence may be one, circumstantial or two, from the words and conduct of the accused person. In this case, the question is whether there is any corroborative evidence to support the cautioned statement of the 1 st accused person and the confession of the co-accused in respect of the 2nd accused person. The prosecution evidence indicated that after the confession of the 1 st accused person on 1 May 2023, she mentioned the 2nd accused person and that he was living at Butundwe. The police officers went to Butundwe area, where the 1st accused person mentioned it was the home of the 2 nd accused person. According to PW24, they arrested 2 nd accused on 5 May 2023 at Butundwe Village in Geita. That fact that the 2 nd accused was arrested at Butundwe was also acknowledged by himself in his defence, though he disputed the date of arrest by mentioning 3 May 2023. Despite that, in my opinion, the dispute on those dates is immaterial since both are after 1 May 2023, the date allegedly the 1st accused person confessed. P a g e | 89 When they questioned him, he mentioned Mussa (4 th accused person), who lived in Bulyanhulu Kahama, that he could assist in arresting the other accused persons. That was when the 3rd accused person was arrested at Ilenze in Sengerema on the same day. According to PW27, he was the one who arrested the 3 rd accused at Ilenze Sengerema, the fact confirmed by the 3rd accused himself in his defence From that, the arrest of the 3rd accused person not only resulted in his confession but also led the police officers to the weapon of murder and the deceased phone. It led to the discovery of the object so connected to the murder. Further, it led to fingerprint and DNA analysis where the results of the analyses connected the 3rd accused person to the murder of the deceased person. It is quite clear that it was the confession of the 1 st accused person which aided in the arrest of the other accused person and later resulted in the discovery of the object so connected to the murder. P a g e | 90 Thus, in my view, the above evidence corroborated the confession of the 1st accused person and the confession of the co-accused concerning the 2nd accused person's participation in the planning to kill the deceased person. In law, every witness is entitled to credence unless there is a reason not to believe that witness. In Goodluck Kyando vs. The Republic (2006) TLR 363, it was held that; "It is a trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness." Therefore, having analysed the evidence on how the information of other accused persons was obtained from the 1 st accused and led to their arrest and later discovery of the objects in connection to the murder. I have no reason to doubt the testimony of prosecution witnesses. Nothing suggested that the prosecution witnesses were not credible. From the above, I hold that if the 1st accused person's confession is corroborated by other evidence as shown above, thus; it is safe to rely on it. Flowing from above, it is a fact that there is no evidence of the 1st and 2nd accused persons participating in the actual killing, but the pertinent P a g e | 91 question is from whose request, aiding, planning and hiring the killers the deceased was killed? From the evidence on record, the 1st accused person initiated the plan to kill the deceased and shared it with the 2nd accused person. After that, the 2nd accused person found the killers for hire who executed the plan. Therefore, the 1st and 2nd accused participated in the planning, aiding and finding the killers to execute the plan to kill the deceased. Thus, the 1st and 2nd accused persons aided and abetted the killing of the deceased in planning, hiring and paying the killers who mercilessly executed the plan by killing the deceased. In view of the above, the 1st and 2nd accused persons were the masterminds, so to speak, of the whole incident. In fact, they were the ones who planned and hired the killers, who were later paid by the 1st accused person. In such circumstances, the 1st and 2nd accused persons cannot escape liability under the law as I will elaborate below; Section 22 (1) and (2) of the Penal Code, Cap 16 it is provided that; P a g e | 92 22.-(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing namely- (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids or abets another person in committing the offence; (d) any person who counsels or procures any other person to commit the offence, in which case he may be charged either with committing the offence or with counselling or procuring its commission. (2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. Therefore, in terms of the cited law above, a person who enabled or procured another person to kill another and that other person is actually killed, the person or person (s) who facilitated the killing is guilty of unlawfully causing the death of that person. See The DPP vs. ACP Abdallah Zombe and others, Criminal Appeal No. 358 of 2013 (Tanzlii). P a g e | 93 Further, the 1st, 2nd and 3rd accused persons had a common intention; that intention was to kill the deceased person. As already shown above, each one played a role in executing that common intention to complete the cycle. The 1st and 2nd accused planned the killing; the 1st accused aided the commission of the offence by paying the killers; the 2 nd accused person found and hired the killers, and the 3rd accused person executed the plan by killing the deceased. Therefore, the 1st, 2nd and 3rd accused person had the common unlawful purpose of killing the deceased person, and that puts both in the same legal status as elaborated under sections 22(1) (b) (c) and (d) 23 of the Penal Code. That provision of law puts in the same “basket” those who commit, aid, abet, counsel or procure perpetrators to commit the offence or share the common unlawful purpose to commit an offence are equally liable irrespective of the role or level of participation. Therefore, the 1st, 2nd and 3rd accused persons had a common intention, and they both participated in the commission of the offence. Regarding the 4th accused person, the evidence of PW28, the investigator of this case, revealed that the 4th accused person participated in P a g e | 94 the early stages of the first mission, which was aborted. Later, he withdrew himself from participation in the planning and execution of the plan to kill the deceased person. According to the witness, after the 4 th and 3rd accused persons met the 2nd accused person, the 2nd and 3rd accused persons went aside to talk and left the 4th accused alone. The 4ᵗʰ accused was left alone. Therefore, the evidence does not indicate if he participated in planning and killing the deceased in the second mission, which succeeded. The next issue is whether the killing of the deceased was with malice aforethought. On this, the entry point is section 200 (a) of the Penal Code, which reads; “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; This Court (Nangela, J) in Republic vs. Erick s/o Thomas Mremi, P a g e | 95 Criminal Sessions No. 20 of 2022, HC-Sumbawanga (Tanzlii), while citing the decisions of the Court of Appeal of Obadia Kijalo vs. Republic, Criminal Appeal No. 95/2007 and Enock Kipela vs. Republic, Criminal Appeal No. 150 of 1994 (Both unreported) elaborated that malice afterthought may be demonstrated by looking at the motive for the offence and the conduct of the suspect immediately before and after the act or omission. Also, malice aforethought may be inferred from various factors, including the type and size of weapon which was used in the attack leading to the death of the deceased, the amount of force which the attacker used in assaulting the deceased, the part or parts of the body of the deceased, where the blow of the attacker was directed at or inflicted, the number of blows which the attacker made. However, one blow may be enough depending on the nature and circumstances of each particular case, the kind of injuries inflicted on the deceased's body and the utterances made by the attacker, if any, during, before or after the incident of the attack. In this case, the evidence by the prosecution side proved that the deceased was attacked on his head, shoulder and hands. As already alluded to, the deceased cause of death was a haemorrhage caused by injuries inflicted by a sharp object. Her right wrist was cut and separated from the P a g e | 96 arm, and on the left arm, three fingers were amputated and removed. Further, she was found to have extensive cut wounds on her head, shoulder and at the back of the neck, to the extent it reached the bone. The cut wounds. The cut wounds were so extensive to 14, 8 and 6 centimetres deep. Those wounds were caused by a sharp object, and in the evidence, it was discovered that it was a sword (Exhibit 19). The type of weapon used and the extent of injuries inflicted does not suggest anything that the attacker’s motive was to kill the deceased. Further, the motive of the 1st accused person was clear: to get rid of the deceased by killing her because of mistreatments and beatings. She was aided by the 2nd accused person, who, after the attempt to kill the deceased by using witch doctors, failed; the 2nd accused advised her to use a “shortcut” to kill the deceased. That shortcut was to hire killers to kill the deceased; the “mission” was accepted by the 1 st accused to the extent of meeting and paying the killers. Thus, the killing was not only with malice aforethought but also it was unlawful. P a g e | 97 The last issue is whether the defence case raised any reasonable doubt against the prosecution case. On this, it is trite that the general duty of the accused person in criminal matters is only to raise doubt against the prosecution case and not otherwise. See, The D.P.P vs. Ngusa Kejela @ Mtangi and another, (Supra) In this case, apart from a general denial of the commission of the offence, the accused persons raised the following issues. The 1st accused person stated that she did not sign and record any statement at the police station and never communicated with the co-accused because she did not know them. Further, the police officers took her phone but did not tender the evidence that she was communicating with other accused persons. On his side, the 2nd accused person raised that he never communicated with Genja and requested him to find two killers, Buchuchu and Masumbuko, and he did not know them or the deceased. P a g e | 98 Also, the prosecution did not tender any evidence of communication to prove it. He also never met with Dayfath, Genja, Buchuchu and Masumbuko at Sengerema and agreed to pay TZS.2,600,000 as the price of killing Milembe. While the 3rd accused person stated that he did not record any statement at the police station. He was sent to a place he did not know and asked to search from the grasses, and the sword was found. Also, he was taken to a certain house and told to bend, and after 15 minutes, police officers returned with two mobile phones. Further, police officers failed to bring evidence that he was communicating with the 2nd accused person, and it was not true that he injured his left hand because it did not even have a scar. Flowing from above, having analysed and considered the defence case, it fails to raise any doubt against the prosecution case. This is because, as I indicated earlier, the prosecution witnesses testified to the required standard in criminal cases on the participation of the accused person in the killing of the accused persons. P a g e | 99 Further, there was an unbroken chain of events from the arrest of the 1st accused person to other accused persons, confessions until the discovery of the objects in connection to the killing. The prosecution evidence proved that the accused persons knew each other, met and planned to kill. Second, on the issue of tendering evidence of communication between the accused persons, I think that should not detain me long because there were other kinds of evidence to implicate the accused persons. Evidence of communication was significant, but lack of it did not demolish the prosecution case. On the third issue regarding the cautioned statements of the 1 st and 3rd accused person, this issue was already determined above. But briefly, the statements were corroborated with other independent evidence. Therefore, having analysed the accused persons' defence as a whole, I don’t see any aorta of doubt against the prosecution case with respect to the 1st, 2nd and 3rd accused persons. Their stories in their defences are an afterthought, and I have no reason to doubt the testimony of prosecution witnesses. P a g e | 100 Nothing suggested that the prosecution witnesses were not credible. See Goodluck Kyando (Supra). In this case, the prosecution witnesses are credible and deserve credence. In the upshot and cumulatively, the prosecution side proves the case to the hilt against the 1st, 2nd and 3rd accused persons, and consequently, I find the accused person guilty of the offence charged. Consequently, I convict the 1st, 2nd and 3rd persons for the offence of Murder c/s 196 and 197 of the Penal Code. Regarding the 4th accused person, the prosecution side failed to prove the case against him beyond a reasonable doubt; thus, I acquit him forthwith. It is so ordered. K. D. MHINA JUDGE 27/08/2024 P a g e | 101 Sentence As far as this case is concerned, my hands are tied by the laws of the land. In our laws, there is only one penalty for the offence of murder, and that is death by hanging. In the premise, this Court having entered conviction against the 1st, 2nd and 3rd accused persons, I hereby sentence the 1st accused person, Dayfath Seleman Maunga, the 2nd accused person, Safari Bundala Lubingo and the 3rd accused person, Genja Deus Pastory, each to suffer death by hanging. It is so ordered. K. D. MHINA JUDGE 27/08/2024 P a g e | 102 Court The right to appeal is fully explained to the prosecution, accused persons, and their advocates. K. D. MHINA JUDGE 27/08/2024