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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL SESSION CASE NO. 36726 OF 2023 REPUBLIC VERSUS 1. YUSTIN STANLEY SAILEN @PASHA PASHA@JENGA 2. ERIGIUS ADRIAN MBENA 3. EZEKIEL ADRIAN 4. SAIMON AMAN @SEGELA JUDGMENT 28/08/2024 & 23/09/2024 KINYAKA, J.; Yustin Stanley Sailen @ Pashapasha @ Jenga, Erigius Adrian Mbena, Ezeklel Adrian, and Saimon Aman @ Segela, the 1^, 2"*^, 3"^, and 4^^ accused person respectively, were jointly charged with two counts of Murder contrary to sections 196 and 197 of the Penal Code Cap. 16 R.E. 2022, hereinafter the "Penal Code". It was alleged by the prosecution in the information filed in this Court on 7^^ December 2023 that in respect of the first count, all accused persons murdered one, Saito Moringe on 15*^^ November 2022 at Lubasazi Village, Kolelo Ward, in the District and Region of Morogoro. The prosecution alleged in respect of the second count that on 15^^ November 2022 at Lubasazi Village, Kolelo Ward, in the District and Region of Morogoro, all accused persons murdered one, Salum Sambingu. All accused persons denied the allegations. In the trial before this court, Mr John Mkonyi, Senior State Attorney teamed up with Mr. Shaban Kabelwa and Josberth Kitale, all State Attorneys to represent the Republic. The defence team was made up of Mr. Yohana Michael Kibindu, Deogratius Kibasa, Aziz Mahenge and Fredrick Charles, all learned advocates. The evidence of the prosecution in support of the two counts was presented by F 8950 D/CPL Paulo Petro John (PWl), Inspector Erick Arsenaut MIelwa (PW2), Doctor Abubakar Said Polly (PW3), Doctor Isack Malisa (PW4), Sadiki Kasimu Kinene (PW5), Nuhu George Lumato (PW6), Bahati Titus Ndinde (PW7), and A/INSP Pagikua Mahenge (PW8). In the course of hearing, the prosecution tendered the Map of the Scene of Crime (Exhibit PI)through PWl; Four Identification Parade registers (Exhibit P2A, Exhibit P2B, Exhibit P2C and Exhibit P2D), all through PW2; the Report on Postmortem Examination of Salum Sambingu (Exhibit P3) through PW3; and the Report on Postmortem Examination of Saito Moringe (Exhibit P4) through PW4. ^ The fads behind the criminal charges presented through the evidence of the prosecution reveal that on 15^^ November 2022, when PW5 and his colleagues were colleding cows at Lubasazi Village in order to start their journey after a night sleep, they were ambushed by a group of people who attacked him and the late Saito Moringe. He witnessed Saito Moringe being pierced thrice through his neck by a spear by the 3'^^ accused person whose name was mentioned several times by the letter's colleagues. PW5 testified that it is the same person, the 3^^ accused who hit him thrice with a bush knife on his head. He heard someone in the group of attackers stating 'Mi'mi ndio Pashapasha kiboko ya Wamasai. Huyu kashatepeta. Hebu tumpeieke walikoenda wenzake'. He testified that while severely wounded, he was taken by the attackers to Kolelo primary school grounds and later on to Dutumi Health Centre by a police motor vehicle where on the way, the body of Saito Moringe was boarded in the same motor vehicle and was preserved in the mortuary when they arrived at the hospital. PW5 managed to identify the and 3'^ accused persons in the identification parade prepared by PW8, conducted by PW2 and which was participated by PW6 and PW7. From the Identification Parade Registers, Yustin Stanley Sailen @ Pashapasha and Ezekiel Adrian, the and 3^^ accused persons. respectively, were identified by PW5 in the first identification parade through Exhibit P2D which consisted of twenty participants. In the course of investigation, PWl, the police officer at Dutumi Police Station, went to the scene of crime together with the Officer Commanding Station (DCS) of Dutumi Police Station and drew the map admitted in evidence as Exhibit PI. PW2 informed the Court that he conducted identification parade of the four accused persons in two separate groups containing twelve people each. He informed the Court that the identification witnesses who identified the and 3^^ accused persons were Sadick Kasimu (PW5), and Makala Kasimu through Exhibit P2D and P2C, respectively; Ayubu Kipara identified the 4^^ accused through Exhibit P2B; and Ibrahim Kipara identified the 2""^ accused person through Exhibit P2A. PW2 explained the procedure he adopted in conducting the identification parade including conducting the same at an open space behind the Morogoro Central Police Station with no interaction of people, informing the participants of their rights, and writing statement of each participant who was beside the identified person and filling of Police Form No. 186. The testimony of PW6 and PW7 were similar in terms of their participation in the two identification parades and the identification of the accused persons by the witnesses. They informed the Court that, the police gave 4 them explanation that there will be accused persons in the identification parade whom they will Identify. PW6 informed the Court that the participants of the parade wore different clothes and were of dissimilar age with different appearance. Contrary to the testimony of PW2 that the parade was conducted at an open space behind Morogoro Central Police Station, PW6 and PW7 informed the Court that the parade was conducted along the corridor in an open hall within the central police building. The victims of the incident who were Ibrahim Kipara, Ayubu Kipara, Sadick Maliki, and Makala Kasimu were interrogated by PW8 who informed him the manner they identified the suspects. They told him that they heard someone was called Pashapasha who was tall and had a scar on his heard, was not white but was brown colour like whitish. They said, the other was called Honourable Ezekiel who was of medium body, tall but with medium height, and another Eligius who was short compared to his colleagues, and had a medium body and was brown in colour. PW8 testified to have prepared the parade but did not participate in the same. The postmortem examinations were conducted on 18"^ November 2022 and 16'^ November 2022 by PW3 and PW4 on the body of Salumu Sambingu and Saito Moringe, respectively. The two reports prepared by PW3 and PW4 were admitted in evidence as Exhibits P3 and P4, respectively. PW3 who conducted examination on the body of Salumu Sambingu found that the deceased's body had maggots, rotten and with cuts on the right shoulder, neck, and on his right and left ribs. PW3 confirmed that the death of Salumu Sambingu was due to hypoglycemia, a secondary shock as a result of blood leakage caused by wounds from cuts by sharp objects. He explained that there was no blood found at the scene which was behind Lubasazi Primary School at the forest, and that it was possible that the body was thrown there after the deceased was killed somewhere else. PW4 who conducted examination on the body of Saito Moringe on 16^^ November 2022, found the body with wounds at his neck which had three sharp open holes on its left side which meant that a sharp object penetrated juggler vein which supply blood from heart to the brain. He also found the deceased's left leg with open fracture with exposed bone marrow which in the event of Infection, complicates the production of blood cells. He further found generalized blister formation with a possibility that fire was passed through the deceased's skin. Upon the examination, PW3 concluded that the deceased lost excessive blood which caused his death. Upon closure of the prosecution case, the Court found no prima facie case established by the prosecution against Erigius Adrian Mbena and Salmon Aman@ Segela, the second and fourth accused persons, respectively. The Court proceeded to find them not guilty of the offence of Murder on both two counts and consequently acquitted them. However, Yustin Stanley Sailen @ Pashapasha, and Ezekiel Adrian, the first and third accused persons, respectively were found with a case to answer and thus were invited to present their defence against the charge of Murder on the two counts. At the beginning of the trial, the defence informed the Court on their intention to rely on a defence of aiibiby all accused persons, and they duly furnished the prosecution and the Court with the particulars thereof on 29^^ August 2024. The testimony of Yustin Stanley Sailen @ Pashapasha who testified as DWl was that, on 15^^ November 2022, the date of the alleged incident, he left home at 6:00 with his daughter Hogra Sailen (DW3) and his son in law Hassan Msowa (DW4)to his farm in Hembeti where they cultivate different crops like maize, paddy, and beans. He informed the Court that they spent the whole day at the farm and returned home at 18:00 hours in the evening and that they had never been to Lubasazi. He testified that he normally chases away birds at the farm as he cannot do any activity using his disabled ^3- hands. He informed the Court that he got the disability in 1980 when he was invaded by a group of people who wanted to steal his grandfather's cows he was herding. He also informed the Court that he was cut on his face and his four fingers on both hands when he was trying to protect his face. He contended that he cannot hold even a spoon or eat using his hands and so, holding any weapon. He testified to have been kept in cell on 21^ November 2022 after he was called to the Morogoro Central Police Station until 6^ December 2022 in the morning when they were called to meet their relatives together with other three colleagues at the police investigation room. He contended that they saw four masai pastoraiists where one of them wore normal clothes who gave them food. He added that they were called for Identification parade in the afternoon and the identifying witnesses were two among the four masai they met in the morning. He informed the Court that four people were touched in the parade and who wanted to fight. He testified that one masai touched his shoulder and his back and after one week, they were given an empty paper where they signed and affixed their thumbs. He contended that there were twenty participants in the parade which contained young people who were not similar to him in terms of age, and appearance. He stated to have a scar on his face and at the back of his neck different from others, and was bare feet and that he wore different clothes from other participants. He denied the criminal charges against him. DWl's testimony was corroborated by DW3 and DW4 who testified that they were with DWl at their farm in Hembeti on 15'^ November 2022 from 6:00 hours to 18:00 hours. DW3 testified that DWl was chasing away birds as he could not uproot grasses due to his disability. DW4 informed the Court that DWl was uprooting grass at the farm on IS'*^ November 2022. DW2, who was the Chairman of Chama cha Mapinduzi testified that he slept at his farm at Mbwande/Dutumi, Mashambani Swagayu on 14"^ November 2022 with his employee Philimon Kosta Kimalamari (DW5) and his sister, Jenifer Adrian Emily after he hired a tractor to cultivate his farm. He contended that in early morning of 15'^ November 2022, he went to Dutumi to withdraw TZS 200,000 to pay the tractor driver from NMB Bank agent. He stated that after he withdrew the money, and when he was preparing to return to the farm, Erigius Adrian who was the Councilor of Kolelo Ward (DW6) telephoned him and asked him to go to Kolelo to meet the Ward Executive Officer of Kolelo to ask about the problem in the area that DW6 was informed by the then District Commissioner. DW2 later on found that the citizens seized pastoralists' cows at Lubasazi Primary School grounds after they destroyed crops. He testified on 9 intervention made by the police and the District Commissioner. He stated to have been called by the District Commissioner vide a letter admitted in evidence as Exhibit D1 together with the second and fourth accused persons but they did not find the District Commissioner at his office on the date they were asked to meet him. They were arrested on 25''' November 2022 and were taken to Morogoro Central Police station. They were later on taken to Mikese Police Station and were taken back to Central Police at Morogoro. As DWl, DW2 testified to have been called In the morning of 6'" December 2022 and was given food by the masai who identified them during the identification parade conducted In the afternoon of the same date. He testified that one masai touched DWl and him and touched other three people who wanted to fight but the police managed to curb the situation. He stated that the other two masai did not Identify anyone. He testified to have signed and affixed his thumb on four different papers and three different papers, respectively, on 10"' or 11'" November 2022 at the investigation office. He denied the criminal charges against him. DW5 who stated to be DW2's friend, corroborated the evidence of DW2 that he was with him at the farm at Mashambani Swagayu on 14'" November 2022 and in the morning of 15'" November 2022 at Dutumi to withdraw money. ^ 10 DW6 who was the 2"'' accused person and who testified for defence, corroborated the testimony of DW2 that he was the one who teiephoned DW2 on 15'^ November 2022 to go to Kolelo to meet the Ward Executive Officer to ask about the problem after he was informed by the District Commissioner. He informed the Court that DW2's farm is at Swagayu, Mbwade Village, Gwakila Ward. He informed the Court that he also received similar letter as DW2 but they did not find the then District Commissioner in his office on the date proposed for the meeting. He stated that they were arrested on 25"^ November 2022. The conclusion of the evidence of both prosecution and the defence mandates this Court to determine whether, the prosecution managed to establish the offence of Murder of Saito Moringe and Saiumu Sambingu against the and S''" accused persons beyond reasonable doubt as required under sections 3(2), 110 and 111 of the Evidence Act Cap. 6 R.E. 2022, hereinafter the "Evidence Act". In this case, the prosecution was obliged to prove that by the 1^ and 3'''' accused persons' unlawful acts or omissions, the deceased persons lost their lives; and that their acts or omission were clothed with malice aforethought [See section 196 of the Penal Code]. I will begin with the prosecution's proof that the 1=^ and 3"* accused persons committed unlawful acts or omission that caused the unnatural death of both 11 Saito Moringe and Salumu Sambingu. The law is now settled that the onus is always on the prosecution to prove not only the death occurred but also the link between the said death and the accused. [See the case of Mohamed Said Matula v. Republic(1995) TLR 3]. Obviously, it was undisputed that both Saito Moringe and Salumu Sambindu faced unnatural death that had resulted from massive loss of blood from the cut wounds. The testimony of the two expert witnesses, PW3 and PW4 who conducted examination on the bodies of the two deceased persons was corroborated by post mortem examination reports which were conducted on 18^^ November 2022 and 16^^ November 2022 and admitted in evidence as Exhibits P3 and P4, respectively. In their testimonies, the two medical doctors told the Court that the respective bodies were found with deep cut wounds evidencing that the deceased persons were attacked with sharp objects. It therefore suffices to say that the evidence on record sufficiently establishes that the two deaths were from an unnatural cause. I now turn to the question as to whether the 1^ and the 3''^ accused persons were the perpetrators of the alleged killings. It is plain clear that the prosecution's proof of the accused person's alleged commission of the offence of murder in the two counts heavily relied on the evidence of PW5 and the identification parade registers admitted in evidence as Exhibit P2A, 12 P2B, P2C and P2D. That said, next for consideration is whether the foregoing established without a shade of doubt that the accused persons are responsible for the offence they stand charged with. I will start with the question as to the identification of the accused persons. During the trial, the prosecution sought to prove the identification of the and 3^^ accused persons through the evidence of PW5 and PW2 and Exhibits P2C and P2D. However, in the course of PW2's testimony, he was found by the Court reading from his palms where he wrote the names of the accused persons, the identifying witnesses and the PGO Number 232. On that regard, I have not given weight to that piece of PW2's testimony that he was observed reading from his palms. However, after an adjournment, PW2 proceeded to testify on his own and informed the Court on the identification process, the procedure he adopted and how the identifying witnesses identified the accused persons, the processes evidenced by Exhibits P2C and P2D. I now proceed to deliberate on the pertinent issue as to whether through the foregoing, the accused persons were properly and positively identified by the identifying witnesses, and that the identification was watertight enough to remove the possibility of mistaken identity.[See the case of Tabu 13 Sita V. Republic, Criminal Appeal 297 of 2019 [2022] TZCA 702 (10 November 2022)] In scrutiny of the evidence on record, I found some shortcomings that leaves a lot to be desired in the identification of the accused persons. In my reading of the contents of Exhibit P2C, I noted that the identifying witness, Makala Kasimu did not testify in Court. Additionally, there was no evidence on the particulars of prior identification of the 1^ and the 3^^ accused persons including the time, date and place he saw them that led to his identification of the accused persons during the identification parade. Furthermore, in his testimony, PW8 who interrogated the identifying witnesses including PW5 testified on the description of the and 3'"'' accused persons by the identifying witnesses that: "The information that we interrogated them was with regard to their knowiedge of the suspects. They gave us the information on how they identified the suspects. They toid us they heard someone was caiied Pashapasha who was taii and had a scar on his head, was not white but was bright It is iike someone who is brown but the brown to whitish. They toid us that they heard another person caiied 'Mheshimiwa'Ezekiei. They toid us that Ezekiei was of medium body, he was taii but with medium height." 14 On my part, I have had an opportunity to observe the and 3^^ accused persons. Indeed, the accused was tall and had a scar on his face towards his head. He also had a scar at the back of his head. However, he was black with no brownish or whitish at all. His black colour was too dark to be identified as brown, bright or whitish. The 3^^ accused was of medium size, not tall and not shot but again, the identifying witnesses' description made to PW8 was too general to justify proper identification. Apart from the above anomalies. Exhibits P2C and P2D does not contain a statement of the identifying witnesses' degree of identification of the and the 3^^ accused persons contrary to Order 232(2)(s) of the Police General Orders G.N. No. 315 of 2021 which provides that: "The officer conducting the parade will note carefully In Ms Identification Parade Register any Identification or degree of Identification made and any material circumstances connected therewith Including any wrong Identification, and any remark or objection made by the suspect. He shall ask the witness who makes the Identification; "In what connection do you Identify this person?''andshallsimilarly record precise details ofthe witness's reply. No other questions are permissible." All the same, the testimonies of PW2, PW6 and PW7 revealed contradictions in the identification parade exercise in terms of the similarities as to age, height, general appearance and the clothes they wore contrary to Order 231 15 ^ (2)(c)(d)(s) and (k) of the of the PGO. In the case of Andrea Augustino @ Msigara & Jesse Kajuna @ Mwemero v. R., Criminal Appeal No. 365 of 2018 [2020] TZCA 1948(28 February 2020), the Court of Appeal held on page 17 through 18 that: "In addition, the officer is required to fiii in the Identification Parade Register any identification or degree of identification made. Itis aiso a requirement that persons seiected to make up the parade shouid be of a simiiar age, height, generai appearance and wear same ciothes. Apparentiy, in the case at hand, aii these were not done and even the exhibit P8 does not indicate the degree ofidentification made by PWl. Further contradictions were revealed in the testimonies of PW2 and PW6 who informed the Court that there were twelve participants in the parade which was contrary to the testimonies of PW5, PW7, DWl and DW2 that the parade contained twenty participants or more. Again, the place where the identification parade was conducted varied in the testimony of PW2, PW6 and PW7. While PW2 and PW6 told the Court that the parade took place in an open space, PW7 stated that the same was conducted in the corridors. Equally, although Exhibit P2D's foundation was laid by PW5 in identif/ing the 1^ and 3'"'^ accused persons, it was a different document from the one read over to the accused persons during committal proceedings which offends <fcr 16 sections 246(2) and 289 of the Criminal Procedure Act Cap. 20 R.E. 2022 hereinafter the "CPA". The identification register that was read during committal proceedings and which was availed to Court and the accused persons contained the name 'YUSUPH' STANLEY as the 8^^ person in the identification parade. Without any prior notice to produce a different document, the prosecution tendered in evidence Exhibit P2D with a name 'YUSTINT STANLEY in Exhibit P2D scribbled from the name 'YUSUPH' STANLEY. Based on the above anomalies in both Exhibits P2C and P2D, I hold that the said exhibits are of less evidential value and therefore, I accord no weight to the same. I hold further that the Identification Parade conducted by PW2, participated by PW6 and PW7 and attended by PW5 as an identifying witness, is unworthy of credit. Upon holding as above, the only remaining evidence of the prosecution that would prove identification of the and 3^^ accused is that of PW5. In his testimony with regards to the accused person, PW5 told the Court that he heard the statement from someone saying 'Mimindio Pashapasha kiboko ya Wamasai. Huyu kashatepeta. Hebu tumpeleke walikoenda wenzake'. Unlike in the case of the 3'^'^ accused person whom he explained to have seen by his own eyes assaulting him and the late Saito Moringe, and who later on 17 took him to the hospital, PW5 never testified that he saw the accused person during the invasion or attacking anyone apart from identifying him on 6^^ December 2022 during the identification parade. In this respect, I do not find proper identification of the accused by PW5. As to the 3'^^ accused, PW5 testified that he was able to identify the accused when he was attacking the late Saito Moringe and him. That, he spent time with him at the office of the Village Chairperson in Kolelo and when they went together to the hospital on foot. However,the circumstances of the first encounter leave a lot to be desired. The relevant part of PWS's testimony was as follows: "My colleague was collecting the cows by the name Saito Monnge. We saw people coming and shouting and thought they were hunting. I and Saito stood up. The people came. One of them was carrying arrows, sticks, bush knives and spear. One of them came from the frontandpierced Saito byspear on his neck. My colleagues ran away butIstood there asI was nearby Saito and I witnessed Saito being pierced with Spear twice and I started to run away. When I ran I fell down. When I turned to look at Saito, Isaw Saito being pierced with spear for the third time which he had already fell down. Ithen continued butI was hit by stick on my head, I fell down. When I turned, I was hit thrice by a bush knife on my head. 18 There wasone person who said 'Ezekie!kwanini usiue huyu kama uiivyoua yuie kuie? There was another person who said 'Mimi ndio Pashapasha kiboko ya Wamasai. Huyu kashatepeta. Hebu tumpeieke waiikoenda wenzake'. The person who was piercing Saito was not that taii and not that white. As I was not far from Saito, the person who pierced Saito with spear was the same person who hit me with bush knife. The person was called 'mkuu Ezekief. I heard the person's name at Lubasazi at the incident They were calling him that name. They took us andIsaw cows being taken." During cross examination, PW5 testified: '7 have not stated that they were 100 people who invaded us. I said they were many. I stated at the police that the invaders were many. I did not state how they dressed. Those thatIsaw and stayed with us were dressed in normal clothes. Those whom Ididn't know were dressed in biack clothes. Isaw them wearing normal clothes..." From the above testimony, it is clear to me that the incidents that occurred at the scene of crime does not support proper and correct identification. These include among other things, the manner in which the invaders were dressed. PW5 testified that he could identify the and 3^^ accused persons because they wore different clothes from the rest of their colleagues who dressed in black and whom he didn't 19 remember. However, he failed to explain the type of clothes the and 3'*^ accused persons wore. Again, the circumstance of the unexpected attack by many people and PWS's act of running from the piace he was, which was not far from where the late Saito Moringe was being attacked, prove that he was terrified and in such circumstance, it is highly unlikely that PW5 would be able to make proper and correct identification. It was highly improbable for PW5 to properly identify the 3*"^ accused while he was being attacked and under fear. I subscribe to the holding of the Court of Appeal in the case of Daudi Loti Mollel Masai v. Republic, Criminal Appeal No. 306 of 2021 [2024] TZCA 119 (23 February 2024) where the identifying witness testified to have identified the accused person in stressful environment. In its decision, the Court of Appeal made the following observations on page 11 through to 12 of its judgment; "...In v/ew of the evidence ofPW2 on the record^ there is no doubt that during the encounter with the assaiiants on the materiai day PW2 was under stressfui and terrifying situation whereby the pockets ofhis trouser were searched by one ofthe assaiiants and robbed ofhispossession before theysubsequentiy ieft the scene of crime. In the circumstances, it is uniikeiy that to 20 PW2 would have correctly Identified the registration number of the said motorcycle. We are however aware that It Is not always Impossible for a victim ofarmed robbery to identify the assailant even under stressful and terrifying condition (see Philip Rukaira v. The Republic, Criminal Appeal No. 215 of 1994 (unreported). Nonetheless, in most cases, there are difficulties In identifying the assailant by the victim under those conditions. In Tagara Makongoro and Two Others v. The Republic, Criminal Appeal No. 126 of 2015 (unreported), the Court was inspired by decision of the Court of Appeal of Kenya in Wamaiiwa and Another v. The Republic[1999]2 EA 358, where it was stated: "The Court should always warn itself of the danger of convicting on Identification evidence where the witness only sees the perpetrator of an offence fieetingiy and under stressful circumstances" Furthermore, there was no evidence regarding the time that PW5 spent to observe the 3'''' accused person. PW5 testified to have been accompanied by the 3"^ accused to the hospital but this was not during the commission of the offence, the first time that PW5 identified the 3'" accused. The dissimilarities on the appearance of the and 3''" accused person that PW5 informed PW8, warrants my conclusion that there was no proper identification of the 3''' accused person by PW5. 21 In the case of Samson Chacha @ Mwita Pius @ Kipepeo v. The Republic (supra), the Court of Appeal held on page 13 that: "H/e wish to state that, we agree with Ms. Mbuya that, the Jaw is settied that visuai identification shouid oniy be reiied upon when aii possibiiities ofmistaken identity are eliminated and the court is satisfied that the evidence before it is absolutely watertight The principles to be taken into account were enunciated by this Court in the famous case of Waziri Amani (supra) to include: One, the time the witness had the accused under observation; two, the distance at which the witness observed the accused; three, the conditions where such observation occurred, for instance, whether it was during day or night time and whether there was good or poor light at the scene; and four, whether the witness knew or had seen the accused before or not -see aiso cases of Issa s/o Mgara @ Shuka V. Republic, Criminal Appeal No. 35of2005, Masolwa Samwel v. Republic, Criminal Appeal No. 348 of 2016 and Byamtonzi John @ Buyoya and Another v. Republic, Criminal Appeal No. 289 of2019(aii unreported) Relying on the above decisions, I hold that the 3'^ accused person was not properly identified by PW5. Nonetheless, in the second count of Murder of the late Salumu Sambingu, neither PW5 nor any of the prosecution witnesses testified on the date, time, and place the late Sambingu was attacked or killed. Apart from the evidence 22 of PWl who found the body of the late Salumu Sambingu at the crime scene, the evidence of the PW3 and the Post-mortem Examination Report admitted in evidence as Exhibit P3, the prosecution did not adduce any evidence to prove the participation of the accused persons in attacking or killing the late Salumu Sambingu and the manner he was attacked or killed. PW5 never testified about witnessing, perceiving or hearing about the fate of the late Salum Sambingu. Even by assuming that the dead body of Salumu Sambingu was found by PWl as shown in Exhibit Pi at the same place where the body of Saito Moringe was found,there are contradictions between Exhibit Pi on one hand and the testimony of PW3 and Exhibit P3 on the other. While Exhibit PI show that the deceased's body was found at an open space, the evidence of PW3 and Exhibit P3 reveal that the body of Salumu Sambingu was found behind Lubasazi Primary School by PW3 at the forest on November 2022 when he conducted examination. Additionally, the prosecution did not provide any evidence as to the reasons for the postmortem examination to be conducted three days after PWl and his colleagues found the body on 15^^ November 2022, and whether or not the body was shifted from the place it was found to the forest behind Lubasazi Primary School. 23 The above shortfalls lead to my considered position that the prosecution failed to prove the offence of Murder in respect of the first and second counts against the and 3'"^ accused persons. As there is no evidence remaining on record that connects the and 3^^^ accused persons with the Murder of the late Saito Moringe and Salumu Sambingu, establishing the ingredient of malice aforethought is uncalled for. In view of the above analysis, I hold that the prosecution failed to meet the standard of proof required in criminal cases under sections 3(2)(a), 110 and 111 of the Evidence Act. I find the accused persons, Yustin Stanley Sailen @ Pashapasha @Jenga, and Ezekiel Adrian, the 1^ and 3'"^ accused persons, respectively not guilty of the offence of Murder both on the first and second counts they stood charged under sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2019. Consequently, I acquit them from the charge of Murder on both counts laid against them before this Court. It Is so ordered. ! f cou/?r o f. a: KINYAKA Uj JUDGE r-J 23/09/2024 -X 24 Judgement delivered today, 23'^ September 2024 in the presence of Mr. Shabani Kabewa, learned State Attorney, the and 3^^ accused persons in person and Mr. Yohana Kibindu and Mr. Azizi Mahenge, learned Advocates for the and 3^^ accused persons. couRr H. A. KINY^KA G Q? r Uj JUDGE > 23/09/2024 f Right of Appeal to the Court of Appeal fully explained. H. A. KINYAKA JUDGE 23/09/2024 25