MTEMBWA J JUDGMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 236 OF 2022 ____________________ REPUBLIC VERSUS 1. ATHUMANI ABDALLAH ATHUMANI @ SHETA 2. HASSAN TWAHA AMIRI @DANGOTE 3. MOHAMED OMARY SAID JUDGEMENT Date of last order: 30th September 2024 Date of Judgement: 2nd October 2024 MTEMBWA, J.: The Accused Persons stand charged with the offense of Murder contrary to sections 196 and 197 of the Penal Code, Cap 16, R.E 2022. It was alleged that on 19th February 2022, at Maweni area within Kigamboni District in Dar es Salaam Region, the Accused Persons murdered one ALLY OMARY ARAFAT. Briefly, the deceased was a motorcyclist commonly known as a “Bodaboda rider.” He borrowed a Motorcycle registered as MC 471 DFC make Boxer BM, 1 from SAID SALUM MBAMBA (PW7). The deceased carried passengers to somewhere and returned to the parking station. Upon his arrival at the station, another passenger emerged and wanted his service. He then carried him to the Tuangoma area within Kigamboni District and never returned. SAID SALUM MBAMBA, who was entrusted with the Motorcycle, kept waiting at the parking station. As it was getting late and the deceased was nowhere to be seen, he decided to leave the station. Later, efforts were deployed to locate the GPS device attached to the Motorcycle. Having tracked the device, it was learned that the motorcycle was on its way to the Kiwalani area. Having arrived at the location, surprisingly, only the device was there. The Motorcycle could not be located. As such, one ABUSHEKH HASSAN KIKALAWANDU (PW3), the Motorcycle owner, reported the incident to the police. On 20th February 2022, SYLVESTER ROCHE, the Maweni street chairman, received a call from an unknown person informing him of the dead body lying alongside the road near Kingstone 2 Secondary School. Having arrived there, he witnessed the dead body and later, it was taken to Vijibweni Hospital. A postmortem Examination Report revealed that the source of death was due to internal head injury. Later, an identification parade was conducted where PW7 identified the 1st Accused as the last person to be seen with the deceased alive. With his help, the 2nd and 3rd Accused Persons were arrested on 13th March 2023. Upon interrogation, the Accused Persons admitted to have committed the alleged offence. The Accused Persons pleaded not guilty to the charge. Consequently, the Republic fronted ten (10) witnesses and tendered five (5) exhibits. The Accused Persons relied on their sworn testimonies and tendered no exhibit. In the conduct of this matter, the Republic was represented by Ms. Daisy Makakala, the learned senior state attorney, assisted by Mr. Titus Aron, Mr. Stanislaus Silayo and Ms. Janeth Kimambo, both learned state attorneys. The Accused Persons were respectively represented by Ms. Agatha Fabian, Ms. Nadia Karama and Ms. 3 Robi Simon Magaigwa, both learned counsels. I will, therefore, look into the evidence adduced by both parties. According to PW1, ASP Rashidi Ahmad Chamwi, on 20th February 2022, at around 09:30 hours, he was in his office at Kigamboni Police Station when he received a call from Maweni Street chairman informing him of the male dead body lying on the road near Kingstone Primary School. He quickly moved to the area, accompanied by fellow police officers. Having arrived there, he witnessed a mob of people. The chairman directed him to the location where the body was lying. It was lying alongside the street road near the bushes and an unfinished house. PW1 continued to testify that, the body was lying on a pool of blood oozing from the mouth and nose. He barely examined the body and noted that the deceased’s head was injured. On further examination of the body, he noted that the deceased had a remote control in his pocket. It could appear that no one around there was familiar with the deceased. The body was then taken to Vijibweni Health Centre. Having done that, he went back to the police station, 4 where he opened a police case file and registered it as KGD/IR/1023/2022. He handled the same to D/CPL Mgaya (PW4) for investigation. From there, he continued to receive the progress report from him. Later, D/CPL Mgaya told him that the deceased’s names were ALLY OMARY ARAFATI. He was also informed that three suspects were arrested, including SHETA, DANGOTE, and MUDI, whom he saw in the cell and recognized them from the dock. When pressed under cross-examination by the Defense Counsels, PW1 testified that he was informed that the deceased’s names were Ally Omary Arafati, the names he did not know before. He used approximately five minutes from Kigamboni Police Station to Maweni Street and having arrived there, he examined the area and the dead body. The area of the scene had two pieces of bricks and thus, he resolved that the deceased was injured by them. Cross- examined further, he testified that he saw the remote control from the deceased’s pocket but he did not tender it. He collected both the two pieces of bricks and the remote control. 5 PW2 one Athanas Ferdinand Nguya owns Njekutech Company Limited, which sells GPS devices. According to him, the devices are used to track the movement of motor machines such as cars and motorcycles. Having paid for the device, a specialist will affix it to the motor machine. He remembered that on 20th February 2022, at around 03:30 at night, he was called by ABUSHEKHE HASSAN KIKALAWANDU (PW3), a leader of PIPTAM INVESTMENT, his client. He told him that one of his motorcycles could not be located. He sent him the Motorcycle’s Chassis Numbers and started tracking it using his cellphone. However, it was under voltage. He revealed that the acceptable average voltage is 12 (12V). By then, it had 8 volts (8V). If the device has 12V, it is still affixed to the machine, but if it is undervoltage, means it is detached from the machine. According to PW2, the GPS device indicated that the Motorcycle was at Kiwalani within Temeke District around Buza area. Accompanied by PW7 and other police officers, he went to Kiwalani and arrived there with the help of the device. Having arrived there, they only found a device on the surface. The Motorcycle was not 6 there. He filled in the Certificate of Seizure and tendered it for identification as ID1. Cross-examined by defense counsels, PW2 admitted not to recall the Chassis Numbers and having no evidence that he owns the company. He also admitted not to know the deceased. Cross- examined further, he changed the story; this time, he testified that he did not fill in ID1. He testified further that the Motorcycle had no Plate Number. He admitted to have not tendered the GPS report. Reexamined by the learned state attorney, PW2 testified that the police officer prepared ID1, and he only signed it. He also observed that the GPS report only shows the incidents recorded 15 days before. PW3 one Abushekhe Hassan Kikalawandu is the manager of PIPTAM Investment, a company that sells motorcycles in cash and on credit. According to him, the motorcycles they sell on credit are usually affixed with GPS devices by the Company owned by PW2. The GPS devices are affixed for security purposes. It was his testimony that on 20th February 2022, around 02:00 hours at night, while at home, he was called by Saidi Salum Mbamba (PW7), one of their 7 clients. He was informed that the Motorcycle sold to him on credit disappeared with another driver. The Motorcycle was registered as MC 471 DCF. He wanted him to track it using the GPS tracker Application installed on his cellphone. On the other hand, PW7 made a follow-up and one Motorcycle was tracked. It was later discovered that PW7 did not own the tracked Motorcycle. Having found that, he called PW2 and informed him of the incident. He requested him to track the Motorcycle. PW3 continued to testify that, later, he was informed by PW2 that the Motorcycle could not be tracked; they were only able to get the GPS device. He then considered the Motorcycle to have been stolen. Later, police officers called him to appear at Kigamboni Police Station for an interview and required him to submit ownership documents, including the Registration Card. Cross-examined by defense counsels, PW3 admitted to have Identication Card or employment contract. He added that the said Motorcycle was handled to PW7 sometime in January 2022. The company hired PW2’s company to affix GPS devices to Motorcycles. 8 He admitted that he did not know the person who committed the offense. Next in evidence is PW4 one G.3907 D/CPL Mgaya, who testified that on 20th February 2022, at around 11:30 hours in the morning, while at his duty station, he was called by PW1, who wanted him to accompany him to the area of the scene. Upon arrival, they witnessed a mob of people. There was a male dead body lying alongside the road. While there, he was instructed to draw a sketch map. Under the assistance of Sylvester Lochi, he drew it and it was tended as Exhibit P1. He examined the body and discovered that the deceased was injured on his head. Thereafter, the body was taken to Vijibweni Hospital for further examination. PW4 testified further that the body was lying on the pool of blood. They did not pick up the pieces of bricks they found at the area of the scene although they had blood stains. Later on, they linked with police stations to find out if there was any reported incident of disappearance. Thereafter, he was fully instructed to investigate the incident. In the course, he went back to the area of the scene. 9 However, the people around there seemed to know nothing. They did not even know the deceased’s name. On 23rd February 2022, the deceased’s relatives, including Salum Ally Kambi and Hamisi Mzee Mwinchumu, went to Kigamboni Police Station searching for their relative, the deceased. PW4 and the named relatives went to Vijibweni Hospital for body identification, where they met Dr. Charles (PW6), and having explained to him the purpose of the visit, the deceased’s body was shown to them. The relatives identified the body to be of ALLY OMARY ARAFATI, the deceased. PW6 examined the body and the Postmortem Examination Report was handed to him for custody. PW4 continued to testify that upon further inquiry from the deceased’s relatives, he discovered that the deceased was a dayworker at a Motorcycle parking center (bodaboda center) commonly known as “Kijiwe” at Kongowe. They also told him that the deceased borrowed a Motorcycle from Saidi Mbamba (PW7) but when he parted, he never returned. As an investigator, PW4 met PW7, who informed him that he handled the Motorcycle to the deceased on 19th 10 February 2022 at around 22:50 hours at night. The same was registered as MC 471 DCF make Boxer black in colour. He also told him that he saw the deceased carrying two passengers (male and female), but he never came back to the center. PW4 then reported the incident to the task force, which launched the investigation. It was not until 11th March 2022 at 16:30 hours in the evening that PC Hamis (PW5) arrested the 3rd Accused Person at Mbagala Chamanzi and brought him to the Police Station. PW4 recorded the 3rd Accused’s Caution Statement, having followed all the required procedures. An attempt to tender it was vigorously objected to by the defense counsel for the 3rd Accused Person. Having determined the objection, the same was admitted as Exhibit P2. PW4 testified further that the 3rd accused admitted to have killed the deceased together with other suspects, including the 1st and 2nd Accused Persons. The 1st Accused Person was arrested on 12th March 2022 and the 2nd Accused on 13th March 2022. On 22nd March 2022, PW1 requested the case file from him, which was returned on 23rd March 2022. Having been returned, he noted that an 11 identification parade was conducted to identify the Accused Persons. Thereafter, on different dates, he interviewed a number of witnesses. He recognized the Accused Persons from the dock. When Cross-examined by the Defense Counsels, PW4 admitted not to be present when the deceased was killed. He said, he went to the area of the scene, and upon arrival, the body had already been loaded into the Car, ready to be transferred to the Hospital. He testified further that the deceased had the remote control in his pocket. He admitted that he was not present when an identification parade was conducted. When the relative came, it just came to his mind that they were in search of the deceased. Before that, they described the deceased by his physic and appearance. Cross-e examined further, PW4 testified that there were two pieces of bricks with blood stains at the area of the scene and were taken by police officers. He admitted that no eyewitness witnessed the incident. Next in evidence was PW5 one A/INS Hamis Masana who testified that on 24th February 2022, he was instructed by PW4 to make follow-ups on the murder incident case file No. 12 KGD/IR/1023/2022. He wanted him to investigate the incident and, where possible, arrest the suspects. He also told him that the Motorcycle registered as MC472 DFC make Boxer Black was stolen in the incident, which was hired from Mzinga on 19th February 2022. Having been so instructed, PW5 went to Maweni Street and met the chairman, Sylvester Roche, who told him when the incident happened. Sylvester Rochi is now sick. He contacted his secret informers from various areas, including Tandika and Mbagala. On 11th March 2022, in the morning, the police force was tipped by a secret informer that the 3rd Accused person and his co-suspects were spotted at Tandika in search of the buyer of the Motorcycle. A team of police officers arraigned and arrived at Tandika area but they could not see him. They went to Chamanzi at his home and arrested him. PW5 testified that while at Charambe Magengeni area, the 3rd Accused person denied to have killed anyone. He also admitted that he has been stealing Motorcycles and usually applies little force or power if the person in possession resists. He continued to tell them that it was the 1st Accused Person who hired the deceased on the day 13 of incident. Both himself and the 2nd Accused proceeded to Kigamboni at the area where they both agreed to meet. When the 1st Accused arrived at the area being driven by the deceased, at a particular bush, the 3rd Accused robbed the deceased. The deceased resisted the robbery, as such, the 2nd Accused hit him on his head and he fell helplessly and unconscious. PW5 continued to testify that the 3rd Accused directed them where to get the 1st Accused. They went to Tandika and Yombo, but they could not find him. They had to go back to Kigamboni Police Station and arrived there at 16:30 in the evening. On 12th March 2022, they went to Yombo within Temeke District being directed by the 3rd Accused. Having arrived there, they were informed that the 1st Accused had moved somewhere with a particular lady called Aziza. They informed the 3rd Accused, who then directed them to where Aziza lives. Having arrived there, Aziza was not there. They were told that she had shifted to Yombo, however, Issa Kikundu could take them there. Having arrived there, they managed to arrest them and 14 took them to Kigamboni Police Station. They arrived there at 19:00 hours at night. PW5 testified further that, on the way to Kigamboni Police Station, the 1st Accused admitted to have committed the offense. On 13th March 2022, at around 01:00 hours at night, they took the 1st Accused and Aziza to Tandika to arrest the 2nd Accused. At around 04:00 hours, they managed to arrest the 2nd Accused. The 2nd accused insisted on arresting JAMALI at Ilala Boma but they could not. He informed this Court that Aziza did not participate on the day of the incident, but she was facing accusations of armed robbery. In addition, PW5 testified that, two years back, he arrested the 1st Accused Person at Buguruni for theft accusations related to stealing Motorcycles. He recognized the Accused Persons from the dock. Cross-examined by the defense counsels, PW5 testified that the scene was surrounded by bushes. The Accused persons were arrested due to information received from secret informers. PW4 informed him of the incident on 24th February 2022. According to PGO, police officers are supposed to carry with them the movement order at the 15 time of the arrest. He did not have it in Court when he arrested the 1st Accused Person. Cross-examined further, PW5 testified that Aziza was arrested by WP Rebecca. The 3rd Accused Person told them that the Motorcycle was sold to KAPINGA. Re-examined by the learned state attorney, PW5 admitted to have not recorded any Accused persons’ Caution Statement. PW6, Dr. Charles William Magurusa, a retired medical doctor previously stationed at Vijibweni Hospital within Kigamboni Municipal Council in Dar es Salaam testified that on 23rd February 2022, he was instructed by the medical officer in charge to examine the body. Having been so instructed, he went to the Mortuary and met mortuary attendants. The body was then brought out of the refrigerator for examination in the presence of CPL Mgaya and the deceased’s relatives, including Hamis Mzee and Sarehe Ally Kambi. He examined the body and discovered that the it was surrounded by dried blood in the nose and mouth. The skull had a fracture of the left parietal bone. In the end, he resolved that the cause of death was due to Closed Head Injury (jeraha la ndani ya kichwa) caused by a heavy blunt 16 object. Other parts of the body had no injuries. He then prepared the Postmortem Examination Report that was tendered and admitted as Exhibit P3. Cross-examined by the defense counsels, PW6 testified that the body was dead four days before the time he examined it. He said, when a person dies, everything in his or her body changes to reflect the death. He discovered the fracture on his left parietal bone by touching it. He explained that it was caused by a heavy blunt object. PW7, Saidi Salum Mbamba introduced himself as a Motorcycle raider ( Bodaboda driver). He used to pack at Mzinga “B” area. Until February 2022, he raided a Motorcycle make Boxer (BM) registered as MC 471 DCF. He did not recall the owner's name. On 19th February 2022, he was with other Motorcycle raiders at Mzinga “B” area (Kijiweni). At 22:50 Hours at night, the deceased borrowed his Motorcycle and carried two passengers of different sexes (a man and a woman) to Mbagala area. He waited for him and later, he came back. On arrival, he was called by another male passenger. That passenger was there for a long time, about twenty minutes waiting 17 before the deceased arrived. At first, he thought he was waiting for public transport (Daladala). The passenger required the deceased to carry him to Tuangoma area. PW7 slowly continued to testify that the passenger stood three paces from where he was. In the area, light came from various shop bulbs. He was standing near the road. The motor vehicle light also touched the passenger’s face. The distance between where PW7 was standing and the shop bulbs was two paces. The shop bulbs were behind them (PW7 and the passenger). He allowed the deceased to carry that passenger to Tuangoma area by his Motorcycle make Boxer (BM) registered as MC471 DCF. They left there at around 12:00 hours at night. PW7 continued waiting for the deceased up to 01:00 hours at night but he never came back. Having waited for a long time, he went to the deceased’s home, but the deceased was not there. He then had to go back to the parking center. Having returned to the center, PW7 waited for deceased until around 02:00 hours when he had to inform the Motorcycle owner of the incident. He required him to track the motorcycle using a GPS 18 device. A few minutes later, the owner told him that the Motorcycle was on the move, heading to Kigamboni. He was required to wait for GPS trackers. At around 06:00 hours in the morning, the GPS trackers picked him up to Kiwalani area. Having arrived there, they saw the GPS devices on the ground but the Motorcycle was not there. He signed some papers and returned home. On 23rd February 2022, PW7 heard that there was a dead body of a male person. Later in the evening, he was told that the body belonged to Ally Omary. On 24th February 2022, the deceased’s body was buried. PW7 continued to note that on 18th March 2022, in the morning, He was called by police officers to appear at Kigamboni Police Station. He went there on 20th March 2022. Having arrived there, he was told to wait in the room alone. A few minutes later, one of the police officers picked him up to another room. There were about nine people lined up. The police officer required him to identify the passenger who left with the deceased on the day of the incident. He went around the line, and he was able to identify one of them whom he saw on the day of the incident. He identified the one who hired the deceased on 19 19th February 2022. He remembered his face and physic: black, not slender. He recognized the 1st Accused Person from the dock. Cross-examined by the defense counsels, PW7 testified that he went to Kigamboni Police station to identify the 1st Accused Person on 20th March 2022. He remembered his face because he saw him leaving with the deceased on the day of the incident. He was informed of the death on 23rd February 2022. Cross-examined further, PW7 testified that the deceased was his long-time close friend. He was searching for him because they agreed he should not stay with the Motorcycle for the whole night. He attended the burial ceremony of the deceased on 24th February 2022 and participated in the identification parade on 20th March 2022. He admitted that it is possible to carry someone for short distances. Re-examined by the state attorney, PW7 admitted that he did not know the whereabouts of the stolen Motorcycle. PW8, PF 20430 INS Edgar Malekela testified that on 22nd March 2022 at 14:00 hours in the afternoon, he was instructed by ASP Rashidi Chamwi (PW1) to supervise an identification parade on the 20 murder incident, case file No. KGD/IR/1023/2022. By then, eight (8) participants were already lined up behind the offices within the compound at Kigamboni Police Station. Thereafter, the 1st accused was joined with other participants. Before the exercise, he informed the 1st Accused of his rights in the conduct of the parade. Having been so informed, he agreed for the parade to proceed. The participants were selected in terms of the PGO and considered the physic, age, height, etc. Thereafter, Said Salum Mbamba (PW7) was called. He introduced himself to him and explained the purpose of the parade. He also explained the rights he was entitled to during the exercise. PW7 passed through the lines, and he identified the 1st Accused Person. In the end, PW8 filled in PF 186 (Identification Parade Register). He tendered it and was admitted as Exhibit P4. In his further testimonies, PW8 observed that the person identified at the parade was Athuman Abdallah Athuman (1st Accused person). The witness is Said Salum Mbamba (PW7). He recognized him by his face. The participants were nine, including Omary Salum, 21 Daniel Makalanga, Mohamed Omary, Steven Christopher, Naziru Hassan, Yusuph Hassan, Athuman Abdallah, Abdallah Seleman, and John Kaniki. The identification parade witnesses were Yusuph Hassan and Abdallah Seleman. He recognized the 1st Accused Person from the dock. Under cross-examination by the Defense counsels, PW8 testified that the rights he explained to the 1st Accused Person before the parade can not be found on Exhibit P4. On further cross-examination, PW8 admitted that the parade was conducted on 22nd March 2022 at 14:30 hours in the afternoon at Kigamboni Police Station and not on 20th March 2022, as testified by PW7. He did not know where the participants came from; he only supervised the parade. There was only one line. Omary Salum was the first in the line from the light. The third participant was Mohamed Omary. The participants lined up, and the 1st accused joined them from the Cell. The witness was brought by CPL Venance. Re-examined by the state attorney, PW8 testified that PW7 did not keep records regarding the date of the 22 identification parade. The participants were obtained from various areas near the Police Station. PW9 Hamis Mzee Mwinchumu testified that on 20th February 2022, Said Salum Mbamba (PW7) came to his House and informed him that his grandchild, Omary Ally Arafati, had disappeared. He was a Motorcycle raider (Bodaboda driver). He said they managed to get the GPS device, but the Motorcycle was not there. Thereafter, he went to Matundubai Police Post and reported the incident. He was told to come back after the lapse of 24 hours. He was also required to follow up with other relatives. After 24 hours, he returned to the police post and he was issued RB. PW9 continued to note that on 22nd February 2022, Sarehe Kambi informed them that a dead body was discovered at Maweni Street within Kigamboni District. On 23rd February 2022, they returned to the police station and reported the issue. The police officers contacted Kigamboni Police Station and it was resolved that they go to Kigamboni Police Station. Having arrived there, they confirmed to have stored the male dead body at Vijibweni Hospital. They went 23 there and having shown to the dead body, they recognized it to be the one belonging to Ally Omary Arafati, the deceased. PW9 was the one who used to stay with the deceased. PW9 looked at the dead body and discovered that it had a fracture on the head. Dried blood could be seen from the nose, cheek and ears. The doctor examined the body, and after the examination, PW9 requested to be given the body for burial activities. On 24th February 2022, they buried the deceased’ body at Mzinga Street in Kongoe, Dar es Salaam. Thereafter, the police officers required them to be patient while investigating the incident. Cross-examined by the Defense counsels, PW9 testified that the body was dressed up in a short trouser and a jacket. He admitted not to be present when the deceased was murdered nor those who killed him. He was informed of the disappearance by Saidi Salum Mbamba (PW7). He told him that the deceased had disappeared and the Motorcycle had been stolen. Only four relatives entered the mortuary room to identify the body. 24 PW10 one G.8358 D/CPL Ally introduced himself as a police officer at Kigamboni Police Station. He testified that on 13th March 2022, at 08:00 hours in the morning, PC Hamis brought the 2nd Accused Person for an interview. He introduced himself and explained the purpose of the interview. He explained the rights he was entitled to. He cautioned him from 08:12 hours in the morning up to 08:17 hours in the morning. He then stated to record his Caution Statement from 08:18 up to 09:20 hours in the morning. Having recorded his Caution Statement, he gave it to him to read and having satisfied of the correctness, he signed it by affixing his signature and thumb. He also signed it and returned the 2nd Accused to the cell. He recognized the 2nd Accused from the dock. The 2nd Accused's Caution Statement was admitted as Exhibit P5 without objection. PW10 continued to testify that during the interview, the 2nd Accused Person admitted to have committed the offense. He also mentioned his partners in crime, including the 1st and 3rd Accused Persons. He also mentioned a certain lady called Aziza. He admitted to have murdered ALLY ARAFATI, the deceased who was the Motorcycle 25 raider (bodaboda) at Maweni within Kigamboni District on 19th February 2022. Under cross-examination by the defense counsels, PW10 testified that he recorded the Caution Statement on 13th March 2022 at 08:12 in the morning. He did not know when the 2nd Accused person was arrested. Before taking his caution statement, the 2nd Accused admitted to understand how to read and write. By then, he was in good condition. He was instructed by OC-CID to record the Caution Statement. Cross-examined further, PW10 testified that in the Caution Statement, there is nowhere the 2nd Accused admitted to have murdered the deceased by name because he did not know who he murdered at the time. The Accused persons did not even know who they hired as a Motorcycle raider. It was revealed later on that the one the 1st Accused hired was the deceased. When shown to Exhibit P5, PW10 observed that the 3rd Accused Person did not rob or hit the deceased. He only took the Motorcycle and disappeared, leaving the deceased fighting with the 1st Accused. 26 Re-examined by the learned state attorney, PW10 insisted that at the time of the interview, the 2nd Accused admitted not to know the person they murdered, but admitted to have hired the Motorcycle raider to Maweni, the area of scene. He admitted to have murdered a person at Maweni within Kigamboni near a Secondary School. That was all about prosecution evidence. Having reviewed the evidence adduced by PW1, PW3, PW4, PW5, PW6, PW7, PW8, PW9, and PW10 and Exhibits P1, P2, P3, P4, and P5, I was satisfied that a prima facie case to answer was established warranting the Accused Persons to enter their defense. They were addressed in terms of section 293 (2) of the Criminal Procedure Act, Cap 20 R.E 2022. Having so addressed, the Accused persons were ready to give evidence on oath. DW1, Athuman Abdallah Athuman testified that on 9th March 2022, on his way to Mjimwema within Kigamboni from Temeke, he met the police officers patrolling. They ordered him to stop and he did. He had construction equipment by then, like a Shovel. One of them said he should be arrested. He asked them why and was told he 27 would know the reason at the Police Station. They arrested him and took him to Kigamboni Police Station, where he was remanded up to 10th March 2022. He was taken out of the Cell on the same day for an interview in the room. While there, three police officers surrounded him and required him to cooperate. They told him that there were allegations of murder at Kibada within Kigamboni District. He denied the allegations. DW1 continued to testify that one of the police officers known as Hamis, came with a piece of iron moth and hit him on his leg. He was also injured on his hand fingers. Having seen that he was bleeding, they returned him to the cell, where he stayed for a month. He added that no one recorded his caution statement. He saw the 2nd and 3rd Accused Persons for the first time at Kigamboni District Court on 6th April 2022. Before that, he did not know them. DW1 faulted PW7. He testified further that PW7 was not telling the truth as he never happened to be in the area where he claimed to have seen him. He also faulted PW8, who claimed to have supervised the identification parade where PW7 identified him. He denied to have 28 participated in the identification parade, which is why his name is not in the Identification Parade Register (Exhibit P4). He denied to have participated in the killing. When cross-examined by the learned state attorney, DW1 testified that on 28th March 2023, he had a Preliminary hearing before Hon. Bwegoge, J, and he admitted the names. He did not admit to have been been arrested at Yombo. He admitted to have not cross- examined on the fact that PW5 detained him on 12th March 2022. He was alone when he was arrested and he was not told the reason. He also admitted to have no evidence that he was injured on his leg. He insisted that no identification parade had been conducted in which he participated. He testified further that he was tortured and forced to admit to have committed the offense. He reiterated that he saw fellow Accused Persons for the first time when they were taken to Kigamboni District Court. Cross-examined by the learned state attorney, DW1 testified that he never participated in the killing together with the 2nd Accused 29 Person. Re-examined by his defense counsel, DW1 admitted his name to be Athuman Abdallah Athuman and not otherwise. DW2 Hassan Twaha Amiri testified that he was arrested on 12th March 2022 at the Motorcycle parking center. He considered the arrest as an invasion because the police officers came at 21:00 at night. Having been arrested, he was taken to Kigamboni Police Station, where he was remanded. On 13th March 2022, in the morning, around 09:00 hours, he was required to sign bail papers and was then returned to the cell where he stayed until 6th April 2022 when he was taken to Kigamboni District Court. Having arrived there, he asked the police officers as to why he was there. He denied to have killed anyone. He implored this Court to find out that he is innocent. Under cross-examination by the learned state attorney, DW2 denied to have met the 1st Accused person (DW1) in the Cell. When referred to Exhibit P5 (his caution Statement), DW2 admitted to have signed it by affixing his thumb on every page but denied PW10 to have recorded his caution statement. He also admitted to have not 30 cross-examined him on that. Cross-examined further, he admitted to have not objected the tendering of Exhibit P5. He denied to have killed anyone. The defense counsels for the 1st and 3rd Accused Persons had nothing to cross-examine. DW3, Mohamed Omary Said introduced himself as a public bus driver with ten years of experience since 2012. Before he was arrested, he used to drive a public bus (Daladala) registered as T 844 BHD. On 10th March 2022, at around 09:00 hours, he drove the said Bus from Kigamboni to Gerezani. When approaching Daraja la Mwalimu Nyerere area, he was called by his fellow driver, who wanted him to wait for him. Upon Arrival at the agreed area, the fellow driver was there and he picked him up. Later, upon arrival at Navy area, he handled the vehicle to him and left. Having handed the vehicle to his fellow driver, DW3 headed to the Urasa area within Kigamboni District. He arrived there at 09:30 hours in the morning and ordered breakfast. He then relaxed near the pool table. Twenty minutes later, a vehicle ( Black Toyota Noah) came along with six people, three of them carrying guns. They handcuffed 31 everyone there. They were all arrested and taken to Mzizima Police Station at Kigamboni, where they were remanded. When referred to Exhibit P2, DW3 testified that the time indicated therein is correct; however, he was arrested on 10th March 2022, not 11th March 2022, as alluded to by PW5. He denied knowing the 1st and 2nd Accused Persons and denied having participated in the killing. He implored this Court to release him. Under cross-examination by the learned state attorney, DW3 testified that he did not know the six persons who came with the vehicle, but later, he realized that they were police officers and PW5 was not among them. On that day, six people, including him, were arrested. He denied to have killed the deceased. He also denied to have signed Exhibit P2 (caution statement). When reminded, he testified that he did not know why he said it was taken out of time, but he did not facilitate the arrest of other Accused Persons. Cross- examined by the Defense Counsel for the 1st Accused Person, DW3 insisted that he saw the 1st Accused Person for the first time at Kigamboni District Court. 32 That was all about the defense evidence. Upon closing, I ordered parties to file final written submissions by 9th August 2024. I passed through the records and noted that the defense counsels did not file the submissions as ordered. I recommend to the learned state attorney for adhering to the agreed schedule. In his Final Written Submissions, Mr. Titus Aron, the learned state attorney, having prefaced on the facts leading to the commission of the offense and arresting of the Accused Persons, submitted that in murder cases, the following ingredients must be proved: first, that there is a human being who died unnatural death, second; that the said death was a result of an unlawful act by the Accused Persons before the court and third, the Accused Person intended to cause death or grievously bodily (Malice aforethought). Arguing on the first and second ingredients, Mr. Aron observed that from the testimonies of PW1, PW3, PW6, PW9, PW6, and Exhibit P3 (Postmortem Examination Report), it is evident that ALLY OMARY ARAFAT is dead. Furthermore, his death was unnatural. 33 The learned state attorney continued to note that the prosecution case rests on circumstantial evidence from the witnesses, together with identification parade and Cautioned Statements. It is clear from the evidence that no eyewitness witnessed the incident leading to the deceased's death. However, that alone can not cause prosecution evidence to flop. He cited the case of Mathias Bundala vs. Republic, Criminal Appeal No. 62 of 2004, Court of Appeal of Tanzania at Mwanza (unreported). He added that for the Accused Person to be found guilty based on circumstantial evidence, there must be cumulative circumstances that irresistibly point out that he is guilty. He was fortified by the decision of Mark Kasimiri vs. Republic, Criminal Appeal No. 39 of 2017, Court of Appeal of Tanzania at Arusha (unreported). Mr. Aron argued that the evidence adduced by PW7 indicates that the 1st Accused Person was the last person to be seen with the deceased alive on 19th February 2022. He identified him at the parking center on the fateful night and during the identification parade. He cited the case of Mathayo Mwalimu & Another vs. Republic, 34 Criminal Appeal No. 174 of 2008, Court of Appeal, where it was observed that the person to be seen with the deceased alive, in the absence of a plausible explanation to explain away the circumstances leading to the death, he or she will be presumed to be a killer. It was submitted further that the fact that the 1st Accused Person is involved in the killing can also be depicted from the 2nd and 3rd Accused Persons’ caution statements. He added that the 2nd and 3rd Accused Persons admitted the offense, and in addition, they failed to explain where they were on the material day and that alone indicates that they were all involved in the killing of ALLY OMARY ARAFAT, the deceased. He placed reliance on the prosecution evidence and cited the case of Goodluck Kyando vs. Republic [2006] TLR 363, where it was observed that witnesses are entitled to their credence and their testimonies must be believed unless there are cogent reasons for questioning their credibility. Whoever questions the credibility of the witnesses must give strong reasons instead of merely speculating that the witnesses might have lied. 35 Based on the foregoing, the learned state attorney considered the offense to have been proved beyond reasonable doubt. He implored this Court to find out that the offense was proved to the required standards that the Accused Persons murdered ALLY OMARY ARAFAT, the deceased. Having dispassionately considered the charge, prosecution and defense witnesses and the final written submissions by the learned state attorney, the question would be whether the offense with which the Accused Persons are charged has been proved beyond reasonable doubt. At the outset, I should indorse the recommendable job by the prosecution and defense counsels. Indeed, in Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a criminal case, the prosecution bears the burden of proof and the standard of proof is beyond reasonable doubt. This is in accord with Section 3(2) (a) of the Evidence Act, Cap 6 RE 2019. In the famous case of John 36 Makolobela Kulwa Makolobela & Another alias Tanganyika Versus Republic (2002) TLR 296, the court noted; A person is not guilty of a criminal offence simply because his defence in not believed; rather, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him which established his guilty beyond reasonable doubts. According to the Charge, the Accused Persons herein stand arraigned for the offense of Murder contrary to Sections 196 and 197 of the Penal Code (supra). In the case of Chacha Ghati @ Gibita vs. Republic (Criminal Appeal No. 682 of 2020) [2024] TZCA 299 (3 May 2024), the Court had this to say; We have earlier on stated that the appellant was convicted of murder and sentenced to death by hanging. In murder cases, the prosecution was required to prove beyond reasonable doubt the following: One, there was death of a human being. Two, the death was unnatural. Three, the accused participated in causing the death of the deceased and four the killing was actuated with malice aforethought. 37 It follows therefore that in murder cases, prosecution must establish to the satisfaction of the Court that a human being died unnatural death and that the accused is the one who caused it with malice aforethought. To appreciate the evidence adduced before this Court, I will look into whether the deceased died an unnatural death. According to PW1, on 20th February 2022, at around 09:30 hours, he received a call from Sylvester Loche, Maweni Street chairman, informing him of the male dead body lying on the road near Kingstone Primary School. He quickly moved to the area, accompanied by fellow police officers. Having arrived there, he witnessed a dead body lying alongside the street road near the bushes and an unfinished house. He barely examined the body and resolved that the deceased was injured on his head. PW4 also accompanied PW1 to the area of the scene. He also testified to have seen the dead body lying at the area of the scene and he drew a sketch map (Exhibit P2). PW6 performed a postmortem examination and prepared a Postmortem Examination Report (Exhibit P3). He resolved that the cause of death was due to Closed Head Injury 38 caused by a heavy blunt object. PW7 attended the burial ceremony of the deceased. PW9 was one of the deceased's relatives who recognized the body in the mortuary room and participated in the burial ceremony on 24th February 2022 at Mzinga Street in Kongowe, Dar es Salaam. Based on the above, I am satisfied that ALLY OMARY ARAFAT died an unnatural death. The presence of Exhibit P3 is evidence that he is no longer alive. According to PW6, the cause of death was due to Closed Head Injury caused by a heavy blunt object. Having so observed, the next issue is whether the Accused Persons caused death with malice aforethought. That will be the next episode. From the evidence available on record, no eyewitness witnessed the death of the deceased. Similarly, no one testified to have seen the Accused Persons killing the deceased. It follows, therefore, that the cause of death is wholly circumstantial. Prosecution heavily relies on the Caution Statement of the 2nd and 3rd Accused Persons. The evidence of PW7 reveals the fact that the 1st Accused Person was the last person to be seen with the deceased alive. According to the 39 prosecution, it could appear that everything started with the 1st Accused Person who was recognized to be the one who hired the deceased to Tuangoma area. In Said Bakari vs. Republic, Criminal Appeal No. 422 of 2013 (unreported), the Court restated the position in Sikujua Idd vs. Republic, Criminal Appeal No. 484 of 2019 (unreported), that; It is established law that a charge of murder can be fully proved by circumstantial evidence. In determining a case centered on circumstantial evidence, the proper approach by a trial court and an appellate court is to critically consider and weigh all the circumstances established by the evidence in their totality and not to dissect and consider it piecemeal or in cubicles of evidence or circumstances'.' As such, before I delve into the confession of the 2nd and 3rd Accused Persons, I find it essential to determine whether the 1st Accused Person was identified correctly by PW7. According to PW7, on 19th February 2022, he was with other Motorcycle raiders at Mzinga “B” area (Kijiweni) when the deceased borrowed his Motorcycle and carried two passengers to Mbagala area. He waited for him and later, he came back. On his return, he 40 was asked by another male passenger to take him to Tuangoma area. That passenger was there for a long time, about twenty minutes waiting before the deceased returned. At first, he thought he was waiting for public transport (Daladala). He stood three paces from where he was. In the area, there was light coming from various electric shop bulbs. He was standing near the road. The motor vehicle light also torched the passenger’s face. The distance between PW7 and the passenger was three paces. Similarly, the distance between the two and the electric bulbs was two paces. The shop bulbs were behind them (PW7 and the passenger), and the light was so bright that he could see the passenger’s face correctly. After the passenger left the parking center with the deceased, he never returned. On 23rd February 2023, he heard that the dead body was discovered at Maweni within Kigamboni District. He was then informed that it belonged to ALLY OMARY ARAFAT. PW7 described the passenger as black and slander. On 20th March 2022, he attended an Identification Parade at Kigamboni Police Station where about nine participants lined up. He was able to identify 41 the 1st Accused Person as the one who hired the deceased on 19th February 2022 to Tuangoma area. PW8 testified how he supervised the identification parade and how PW7 identified the 1st Accused Person. He also tendered the Identification Parade Register as Exhibit P4. The question would still be whether the 1st Accused Person was identified correctly by the PW7. It is apposite that I refer to the guidelines on visual identification as stated in one of the everlasting and seminal decisions of Waziri Amani vs. Republic [1980] TLR 250, where the Court cautioned, at pages 251 to 252, that: evidence of visual identification, as Courts in East Africa and England have warned in a number of cases, is of the weakest kind and most unreliable. It follows therefore that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. The Court continued to note at page 252, that: Although no hard and fast rules can be laid down as to the manner a trial Judge should determine questions of disputed identity, it seems dear to us that he could not be said to have 42 property resolved the issue unless there is shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would, for example, expect to find on record questions as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not. These matters are but a few of the matters to which the trial Judge should direct his mind before coming to any definite conclusion on the issue of identity. Waziri Aman’s case (supra) is one of the landmark cases on visual identification. But as the Court also observed in that case, the factors listed therein were not exhaustive and that in each case all the circumstances surrounding it must be considered. In some cases, a list of factors has been expanded. in Jaribu Abdallah, Vs. Republic, Criminal Appeal No. 220 of 1994 (unreported) it was held: In matters of identification it is not enough merely to look at factors favouring accurate identification. Equally important is the credibility of witnesses. The conditions of identification 43 might appear ideal but that is no guarantee against untruthful evidence. The Court also noted that; Eye witness testimony can be a very powerful tool in determining a person's guilt or innocence. But it can also be devastating when false witness identification is made due to honest confusion or outright lying. PW7 was direct and accurate on the time, distance, source of the light and its intensity. He even further described the physics of the person he saw on the material day hiring the deceased to Tuangoma area. He said it was around 22:55 hours at night. The distance between where he stood and the passenger, who was later recognized to be the 1st Accused Person, was three paces. The electric bulbs from various shops helped him see the passenger’s face. Also, the car torched the passenger’s face. He observed him for about twenty minutes. The light was bright enough to see his face correctly. When cross-examined by the defense counsel for the 1st Accused Person, PW7 was not shaken. He remained firm and direct about what he believed to be true. From the foregoing, I am satisfied 44 that PW7 correctly identified the 1st Accused Person as the one who hired the deceased to the Tuangoma area on 19th February 2022 at 22:55 hours at night. PW7 was direct, accurate, credible, and trustful about what he believed to be true. I have no flick of doubt that he is a credible witness. With the above observation, the 1st Accused was the last person to be seen with the deceased alive. In Mathayo Mwalimu and Another vs. the Republic, Criminal Appeal No. 147 of 2008, the Court observed that if an Accused Person is alleged to have been the last person to be seen with the deceased, in the absence of a plausible explanation to explain away the circumstances leading to the death, he or she will be presumed to be the killer. However, in Richard Matengule vs. Republic, Criminal Appeal No. 73 of 1991 (unreported), the Court stated that such suspicion is not always conclusive unless there is other content corroborative evidence. 45 In this case, PW7 identified the 1st Accused Person to be the one who hired the deceased on 19th February 2022 to Tuangoma area within Kigamboni District. PW7 testified further that after the two left the parking center, the deceased never returned. The 1st Accused, therefore, was the one who was carried by the deceased by using PW7’s Motorcycle registered as MC472 DFC make Boxer Black in color. According to PW2, PW3, and PW7, the Motorcycle had a GPS device. It was recovered in the following day at Kiwalani area left on the ground. The Motorcycle was not there. Similarly, on the next day, the dead body belonging to the deceased was discovered at Maweni Street within Kigamboni District in view of the testimonies of PW1 and PW4. The evidence of PW6 and Exhibit P3 reveal that the deceased died an unnatural death. In the absence of an explanation by the 1st Accused to exonerate himself from the death of ALLY OMARY ARAFAT, I am satisfied that he is involved in his death. Having so observed, I will now determine whether the 2nd and 3rd Accused Persons are also involved in the killing. 46 The Prosecution implored this Court to ground the conviction on the 2nd and 3rd Accused Persons based on the retracted confessions through Exhibits P2 and P5. Before I delve into the conclusion, I feel instructed to review the named exhibits. According to Exhibit P5 (2nd Accused’s caution statement), on 20th February 2022, together with the 1st and 3rd Accused Persons, Aziza Jamal and Jumanne Rashidi, went to Mzinga area at Mbagala. They saw a motorcycle parking center (Kijiwe). The 1st Accused Person and Aziza hired a Motorcycle to Kigamboni. The 2nd and 3rd Accused Persons, together with other co-partners, proceeded to Maweni area near Abdul Jumbe secondary school by a Car. When the 3rd Accused Person arrived at the agreed location, the Motorcycle rider was required to stop. The 1st Accused then robbed him, and then they all emerged at the area of the scene. The 3rd Accused Person left with the Motorcycle, leaving the 1st and 2nd Accused Persons fighting with the Motorcycle rider. Since the Motorcycle rider was not cooperating, 47 the 1st Accused robbed him while the 2nd Accused person took a piece of stone and hit him on his head. They disappeared, leaving the Motorcycle rider lying down helplessly. The Motorcycle was make Boxer. Reading between the lines of Exhibit P2 (the 3rd Accused Person’s Caution Statement), the 1st Accused Person was the one who hired the Motorcycle rider to Kisota, Maweni, near Kingstone secondary school. The Motorcycle was registered as MC 471 DCF, Boxer black in color. Together with other co-partners, including the 2nd Accused Person, the 3rd Accused preceded the Kigamboni area. The 1st Accused Person came with a Motorcycle rider at the agreed point. Having arrived at the area, the 1st Accused Person robbed the rider and the 2nd Accused Person picked up the brick and hit him on his head. The 3rd Accused Person then drove the Motorcycle and disappeared with it. He was not sure if the Motorcycle rider was able to work up. As said before, the 2nd and 3rd Accused Persons retracted the confessions. In Tuwamoi vs. Uganda (1967) EA 84, which was 48 later quoted in Hatibu Gandhi and Others vs. Republic (1996) TLR 12, the Court stated; A trial court should accept with caution a confession which has been retracted or repudiated or both retracted and repudiated and must be fully satisfied that in all the circumstances of the case that the confession is true. I am also fortified with the position of the law that it is dangerous to act on repudiated or retracted confession unless there is other corroborative evidence. The danger of acting on such confession was underscored by the Court of Appeal of Tanzania in Hemed Abdallah v Republic (1995) TLR 172 when, among other things, the Court stated: Generally it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particulars or unless the court, after full consideration of the circumstances, is satisfied that the confession must but be true. 49 Guarded by the above position, I will determine whether Exhibits P2 and P5 ( respectively, the 3rd and 2nd Accused Person’s caution statements) were corroborated by other prosecution evidence. In view of the testimonies of PW1 and PW5, a dead body belonging to ALLY OMARY ARAFAT was discovered at Maweni Street within Kigamboni District on 20th February 2022 near Kinstone Secondary School. At the area of the scene, there were pieces of bricks with blood stains. The skull had fracture and the body was lying in a pool of blood. PW4 and PW10 testified to have recorded the caution statements of the 3rd and 2nd Accused Persons, respectively, and both admitted to have murdered the deceased. PW6 examined the body and observed that it was surrounded by dried blood in the nose and mouth. The skull had a fracture of the left parietal bone. He resolved that the cause of death was due to Closed Head Injury caused by a heavy blunt object. On the other hand, PW7 testified to have seen the 1st Accused hiring the deceased to Tuangoma area within Kigamboni District on 19th February 2022. The deceased left the parking center with the 1st Accused Person while driving a 50 Motorcycle make Boxer (BM) registered as MC 471 DCF. From what I have tried to endeavor hereinabove, I entertain no doubt that Exhibits P2 and P5 were corroborated. In that sense, I am satisfied that the 2nd and 3rd Accused Persons were involved in murdering ALLY OMARY ARAFAT, the deceased. Having so concluded, the question would be whether the killing was with malice aforethought in view of section 200 (a), (b), and (c) of the Penal Code (supra). According to the Black's Law Dictionary, malice aforethought means a pre-determination to commit an act without legal justification or excuse... An intent, at the time of killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life: but "malice aforethought" does not necessarily imply any ill will, spite or hatred towards the individual killed. A point worth noting is that a person who uses violent measures in the commission of a felony involving personal violence does so at his/her peril and is guilty of murder if the measures deployed result into the death of the victim. In the same vein, if death is caused by an 51 unlawful act in the furtherance of an intention to commit an offense, malice aforethought is deemed to be established. (see Fadhili Gumbo @ Malota & 3 others vs. Republic [2006] TLR 50). According to PW1, having barely examined the body, he discovered that there was a fracture on the head. The body was lying on a pool of blood. Around the dead body, there were pieces of bricks with blood stains. PW6 performed a postmortem examination and prepared a Postmortem Examination Report (Exhibit P3). He testified to have seen dried blood in the nose and mouth of the deceased. Having medically examined the body, he resolved that the cause of death was due to Closed Head Injury caused by a heavy blunt object. This means that the type of weapon and amount of force applied to the very delicate area of the human body resulted into death. Considering the available evidence, I am satisfied that the killing was with malice aforethought. The defense evidence casts no doubt on the prosecution evidence. According to the 1st Accused Person (DW1), he was arrested on 9th March 2022 on his way to Mjimwema within Kigamboni District 52 from Temeke. Having been arrested, he was taken to Kigamboni Police Station, where he was remanded up to 10th March 2022. On the same day, he was taken to an interview room, where he was tortured. One of the police officers who participated in the torture was PW5. As a result of the torture, he was injured on his leg and fingers. He faulted PW7 for telling lies. He denied to have participated in the identification Parade supervised by PW8. He saw the 2nd and 3rd Accused Persons for the first time at Kigamboni District Court on 6th April 2022. Before that, he did not know them. Generally, he denied to have committed the offense. At the outset, the 1st Accused Person failed to state where he was on 19th February 2022. He made a general and sweeping defense that he did not commit the offense without even stating where he was and what he was doing on the day of the incident. He faulted PW7’s testimony and added further that he had never been at the area where he is said to have been seen leaving with the deceased being carried on the Motorcycle. In my opinion, the 1st Accused was not telling the truth because he did not say where he was at that material 53 time. Similarly, it is not true that he did not participate in the identification parade supervised by PW8. I looked at Exhibit P4 (Identification Parade Register) and noted that his name is there as a suspect, and he signed it. He never disputed the signature. PW4 tendered exhibit P2 (the 3rd Accused Person’s caution statement). The statement mentioned him as one of the co- participants in the killing of the deceased. PW4 also testified to have been informed by the 3rd Accused Person during the interview that the 1st Accused Person participated in the murder incident. Surprisingly, he did not cross-examine him on such fact or Exhibit P2. Similarly, PW10 tendered Exhibit P5 (the 2nd Accused Person’s caution statement). The Statement also mentioned the 1st Accused Person as the one who hired the deceased to the area of the scene. He did not at all cross-examine him or on Exhibit P5. In Damian Ruhele vs. Republic (Criminal Appeal 501 of 2007) [2012] TZCA 160 (2 March 2012), the Court observed that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness's evidence. 54 According to DW2, he was arrested on 12th March 2022 while at the Motorcycle parking center. He was then taken to Kigamboni Police Station, where he was remanded. On 13th March 2022, in the morning, around 09:00 hours, he was required to sign bail papers and was then returned to the cell where he stayed until 6th April 2022, when he was taken to Kigamboni District Court. He considered himself to be innocent. Cross-examined by the state attorney, DW2 denied having met the 1st Accused (DW1) in the Cell. When referred to Exhibit P5 (his caution Statement), he admitted to have signed it by affixing his thumb on every page. He also admitted that he had not objected to the tendering of Exhibit P5. Similarly, the 2nd Accused Person failed to state where he was on the night of 19th February 2022. Exhibit P5 is the Caution Statement recorded by PW10. According to him, the 2nd Accused admitted to have committed the offense. He also mentioned the 1st and 3rd Accused Persons as his criminal co-partners in crime. Exhibit P5 was admitted without objection, and the evidence of PW1, PW5, PW6, PW7, and Exhibit P4 corroborated it. Exhibit P2, as tendered by PW4, 55 mentioned him as one of the participants in the killing. PW4 also testified to have been informed by the 3rd Accused on how the 2nd Accused Person participated in the killing. He did not cross-examine him on the very incriminating and damaging facts relating to his involvement in the killing. In view of the cited case of Damian Ruhele (supra), the 2nd Accused Person is said to have admitted the facts. His sweeping defense did not cast any doubt on the prosecution evidence. DW3 testified that on 10th March 2022, he was arrested at Urasa area within Kigamboni District. Having been so arrested, he was taken to Mzizima Police Station at Kigamboni, where he was remanded. He denied knowing the 1st and 2nd Accused Persons and denied to have participated in the killing. He insisted that he saw the 1st Accused Person for the first time at Kigamboni District Court. He implored this Court to release him. The evidence by the 3rd Accused Person suffers the same deficiencies. He did not say where he was on the night of 19 th February 2022. Although he denied to have known the 1st and 2nd 56 Accused Persons before being taken to Kigamboni District Court, he did not cross-examine PW10 who tendered Exhibit P5. PW10 testified to have been informed by the 2nd Accused Person on how the 3rd Accused Person participated in the killing. He carried grave and serious allegations against him. He objected to the tendering of his caution statement (exhibit P2) but never disputed the contents therein. For these reasons, I stand satisfied that his evidence casts no doubt of prosecution evidence. From what I have tried to endeavor hereinabove, I am satisfied that the prosecution evidence points fingers at the Accused Persons to be the one who murdered ALLY OMARY ARAFAT, the deceased. The commission of the offense, therefore, was proved beyond reasonable doubt and I thus find the Accused Persons guilty of the offense of murder. In that stance, I hereby proceed to enter conviction against ATHUMANI ABDALLAH ATHUMANI, HASSAN TWAHA AMIRI and MOHAMED OMARY SAID of the offense of murder contrary to sections 197 and 198 of the Penal Code (supra). 57 H.S. MTEMBWA JUDGE 02.10.2024 As far as this case is concerned, my hands are tied by my oath of office to uphold the Constitution and to respect the laws of the land. In our law, 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 all Accused Persons, I hereby sentence ATHUMANI ABDALLAH ATHUMANI, HASSAN TWAHA AMIR and MOHAMED OMARY SAID each to suffer death by hanging until they die. I order accordingly. Right of appeal explained. 58 DATED at DAR ES SALAAM this 2nd October 2024. H.S. MTEMBWA JUDGE 59