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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL SESSION CASE NO. 11200 OF 2024 REPUBLIC VERSUS 1. SEHEWAADSON CHOMOLA 2. BARAKA JEREMIA LUBEREJE@ZILIMUNDA@CHARLES MASIGOSE ISAYA JUDGMENT 12/09/2024 & 23/09/2024 KINYAKA, J.; The accused persons, Sehewa Adson Chomola and Baraka Jeremia Lubereje @ Zilimunda @ Charles Masigose Isaya are indicted with the offence of Murder contrary to sections 196 and 197 of the Penal Code Cap. 16 R.E. 2022, hereinafter the "Penal Code". The particulars of the offence are that, on 28^^ December, 2022 at Kitungu A area, Mtumbatu Village within Kilosa District in Morogoro region, the accused persons murdered one Peter Habel Mkambi @ Majanga. The accused persons pleaded not guilty to the offence thus compelling the Republic to discharge Its burden of proving their guilt beyond all reasonable doubts. The Republic who was duly represented by Ms. Mary Lundu, Senior State Attorney, Ms. Edna Kaombwe and Ms. Margreth Lyimo all State Attorneys, led her prosecution evidence through Neema Amos Daniel (PWl), John Nelson Senyagwa (PW2), Festo Manfred Luambano (PW3), A/Insp Habibu Shaban Mgaya (PW4), Alfa Amos Majenja (PW5), G5873 D/CPL Abdallah Mohamed (PW6), G7715 D/CPL Alblnus Venance Muyengi (PW7), G1699 D/CPL Mohamed Said Mohamed (PW8), G3413 D/CPL Zaharan Hussein (PW9), and G4221 D/CPL Daniel Ngoji Daniel (PWIO). Save for the and 2"^ accused's caution statements that were tendered and admitted in evidence as Exhibits P2 and P3 respectively, the prosecution evidence was to a larger extent circumstantial based on the evidence of PW5 that on 28^^ December 2022 before he went missing, the deceased to whom he used to daily board a motorcycle to his workplace informed him through a text message that he went to Kibaigwa with the 2'^^ accused person. The remaining evidence marshalled by PWl, PW2, PW3, PW4, PW6, PW7, PW8, PW9 and PWIO related to the reporting of the incident to the police on the unknown whereabouts of the deceased person, the discovery, identification and examination of the deceased's body, as well as the ultimate arrest, interrogation of the accused persons and the recording of their caution statements. Briefly, the evidence goes thus; on 29"^ December 2022, PW2 and other three people namely Yona Selemani, William Anaki and Athumani were looking for a stolen goat belonging to one Mzee Penford Mgomba. During the said search, they found a black and white coloured jacket, and later on a dead body with a rope around the body's neck laying along the Dodoma- Dar es Salam main road at Kitungu A area, Mtumbatu Village within Kilosa District in the Region of Morogoro. PW2 called the Village Chairman of the respective area who also communicated with the Police at Dumila Police Station. As expected, after arriving at the crime scene, the Police Officers who were PWIO and one Inspector Christina Ngole, took the deceased's body to Cairo Health Centre where it was preserved in the mortuary. According to PW3, the deceased's body was on 31^ December 2022 identified by his relatives, Andrea Julius and Amosi Msijala. On the same date, he conducted post mortem examination where it was finally revealed that the death was caused by suffocation secondary to strangulation after the deceased was strangled with a rope that was found around his neck. On the basis of his findings, PW3 prepared a post mortem examination report that was admitted in evidence as Exhibit PI. Eventually, the deceased's body was handed to his relatives for burial ceremony which took place at Mkoka Village in Dodoma according to the testimony of PW3,PWIO, PWl,and PW5. Thereafter, the search for the culprits was set in motion. According to PW4, the Police force was tipped off by a secret informer of the accused person's Involvement in the killing of the deceased. On 23''^ February 2023, the chairman of motorcycle riders at Mkoka, one Amon informed PW4 that the accused person was at Mkoka bus stand. Upon receiving the information, PW4 and another police officer, J4791 PC Mathias went to the area and arrested the accused person, Sehewa Adson Chomola as a prime suspect of the murder of the deceased. Following the arrest, the accused person was handed over to PW8 who interrogated him and through his caution statement that was admitted in evidence as Exhibit P2, the accused person admitted that he was involved in the plan with the 2""^ accused to steal a motorcycle from the deceased and further stated that from a telephone conversation between the 2""^ accused and his father, he overheard the former confessing to the latter that he was involved in the killing the deceased. According to PWIO, acting upon the accused person's caution statement and the information from PW5 as regards to the communication he had with the deceased before he went missing, the police force mounted investigation and search for the 2"^^ accused person who was alleged to have escaped to Jaribu Mpakani Village in Mkuranga where he had concealed his identity and introduced himself as Charles Masigose. Ultimately, the 2"^ accused was apprehended at Jaribu Mpakani Village by PW6 and a local militia one Ally Namata on 5^^ September 2023 following the information that the Police Force received from a secret informer. The 2"^ accused was subsequently handed to PW7 at Kimanzichana Police Station and later on to Morogoro Central Police Station where he was handed to PW9 for interrogation. His caution statement admitted in evidence as Exhibit P3 was thereafter recorded in which he confessed to have murdered the deceased in collaboration with another person whose name was unknown to him. It was on the strength of the above prosecution evidence that both the and 2"^ accused persons were found with a case to answer and were called to present their defence in compiiance with section 293(2) of the Criminal Procedure Act Cap. 20 R.E. 2022. In their defence, the 1=^ and 2"'' accused persons enjoyed legal representation of learned advocates Mr. Bahati Hacks and Mr. Deckrine Kweka, respectively. Testifying on oath as DWl, the accused person generally denied the prosecution's allegation of his involvement in the offence he stands charged with. However, he admitted to have been arrested on 23"^ February 2023 at Mkoka bus stand. He distanced himself from Exhibit P2, his alleged caution statement, contending that he didn't take any statement before the police and instead claimed to have been beaten and forced to sign blank papers. He informed the Court that he made an extra judicial statement before the Honorable Magistrate of Kongwa Primary Court, Majura Mustapha in which he denied to have killed the deceased and instead he implicated the 2"'' accused as the one involved in the murder after he overheard him confessing as such to his father over the phone. He claimed not to know all prosecution witnesses save for PWIO. He contended to have no clue as to when and how the deceased died as well as where his dead body was found. On his part, DW2 denied the evidence presented against him with the exception of the date of his arrest on 5"^ September 2023. He refuted to have been arrested at Jaribu Mpakani Village In Mkuranga and instead stated to have been arrested at his home in Mkoka and thereafter taken to SUA police station where he was forced to sign blank papers with white and black lines by affixing his thumb. He defended himself that PW9 did not record his caution statement and that he never admitted to have killed Peter Mkambi. He further denied to have known the accused and PW5. He refuted to have telephoned the accused as both his father and mother have mobile phones. He also informed the Court that he did not know the deceased, Peter Mkambi. Upon closure of both the prosecution and defence cases, I am enjoined to determine whether according to the evidence on record, the prosecution managed to prove beyond reasonable doubt that It Is the and 2"'' accused persons who murdered the late Peter Habel Mkambi @ Majanga, hereinafter the "deceased". It is expected of the prosecution to have established through its evidence on record that by the and 2"" accused persons' unlawful acts or omissions, the deceased lost his life; and that their acts or omission were clothed with malice aforethought contrary to sections 196 of the Penal Code. As intimated above, in establishing the offence of Murder against the and 2"^ accused persons, the prosecution relied on the caution statements of the two accused persons. The rest of the evidence was to a larger extent circumstantial as there was no eye witness who witnessed the and 2"^ accused persons killing the deceased. The general rules as to the proof of the offence of Murder in the circumstance like the present case were articulated by the Court of Appeal in the case of Hussein Malulu @ Ellas Hussein and 2 Others v. the Republic, Criminal Appeal No. 263 of 2021, relying on a passage in Sarkar on Evidence, 15th Edn., which was quoted with approval in the case of Sadiki Ally Mkindi v. the D. P. P., Criminal Appeal No. 207 of 2009(unreported) that: 'We would therefore set out the genera! rules regarding circumstantial evidence In criminal cases as elucidated in SARKAR ON EVIDENCE, Fifteenth Edition, Reprint2004 atpages 66 to 68. These are: 1. That In a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused Is guHty of the crime of which he Is charged. The circumstances relied upon as establishing the involvementofthe accused in the crime must clinch the issue ofguiit Z That allthe incriminating factsand circumstances must be incompatibie with the innocence of the accused or the guiit of any other person and incapabie of expianation upon any other hypothesis than that ofhis guiit, otherwise the accused must be given the benefit ofdoubt 3. That the circumstances from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonabie doubt and must be cioseiy connected with the factsought to be inferred therefor. 4. Where circumstances are susceptible of two equally possible Inferences the inference favoring the accused rather than the prosecution shouid be accepted. 5. There must be a chain ofevidence so far compiete as not to ieave reasonabie ground for a conciusion therefrom consistent with the innocence of the accused, and the chain must be such human probabiiity the act must have been done by the accused. 6. Where a series ofcircumstances are dependenton one another they shouid be read as one integrated whoie and not considered separateiy, otherwise the very concept ofproof of circumstantial evidence wouid be defeated. 7. Circumstances of strong suspicion without more conclusive evidence are not sufficient to justify conviction, even though the party offers no explanation ofthem. 8. If combined effect of aii the proved facts taken together is conciusive in estabiishing guiit of the accused, conviction wouid bejustified even though any one or more ofthose facts by itselfis not decisive" Considering the foregoing authority in the case at hand in line with the elements for establishing the offence of Murder, the question that arises for determination is whether through the oral testimonies and the tendered exhibits, It was established beyond all shades of doubt that not only that the death of the deceased unnaturally occurred but also that the evidence Irresistibly points to the accused persons' guilt. In the Instant trial, the evidence to prove the death of the deceased was advanced by PWl, the wife of the deceased; PW2, the passerby who found the deceased's body and PWIO who also witnessed the deceased's body lying along the Dodoma-Dar es Salaam main road at Kitungu A area, Mtumbatu Village, Kllosa District In Morogoro Region and who found the 10 deceased with ropes around his neck; PW3 the Medical Doctor who conducted post mortem examination of the deceased's body with findings that the deceased died from suffocation secondary to strangulation by ropes found around his neck. The evidence was further corroborated by PW5, the deceased's relative; PW8 and PW9 who interrogated the and 2"^ accused persons and recorded their caution statements supported by Exhibits P2 and P3, respectively. Undisputedly, it is the evidence of PW3 and Exhibit PI that confirmed that the deceased died and his death was unnatural occasioned by suffocation secondary to strangulation. Upon the uncontroverted evidence that the deceased died from unnatural cause, the next consideration is whether it is the and 2"^^ accused persons who strangled the deceased causing his suffocation that led to his death. I will start with the testimony of PW5 in connection to what was revealed in Exhibits P2 and Exhibit P3 in which he incriminated the 2"^ accused for the killing of the deceased. In his testimony on oath, PW5 informed the Court that the deceased who was a motorcycle rider used to take him to and from his workplace on daily basis. That on 28^^ December 2024, as usual, the deceased took him to his workplace and thereafter left him there. He said, at 10:00 hours in the 11 ^ morning, he texted the deceased who didn't reply until at 21:00 hours when he sent him a text message informing him that: "Nipo Kfbaigwa. Tupo na Baraka ZHimunda. Amesema kwamba tuje tufuate mbegu za mahindikutoka mchana mpaka sasa hivi" The above piece of evidence corroborated what the 2"*^ accused person stated in his caution statement (Exhibit P3). In Exhibit P3, the 2"^ accused explained the manner he arranged with the 1^ accused to steal the motorcycle make Haojue ridden by the deceased and said: "Uipofika tarehe 28/12/2022 majira ya mchana niHenda nyumbanikwa Sehewa s/o Chomola akampigia Peters/o Mkambi ambaye ni bodaboda na kumwambia njoo nyumbani utupeieke shamba. Baada ya muda kidogo aiifika akiwa na pikipiki aina ya HAOJOUE yenye rang! nyeusi na amevaa shati jeupe mimi nikatoka nikamwambia twende Kibaigwa tukanunue mbegu haiafu turudi tumpitie Sehewa, basi tukaanza safari... In his caution statement, the 2"^^ accused further stated the manner he participated in holding the deceased while his colleague introduced to him by Chitungula, strangled the deceased to death using shoes ropes around their way from Cairo to Dumila and left the deceased's body alongside the road. The piece of evidence is corroborated by the testimony of PW2, and 12 PWIO on place they found the deceased's body with ropes around his neck, and that of PW3 and Exhibit PI on the cause of death of the deceased. Further, DW2 stated to have heard peopie crying on SI®' December 2022 at 21:00 hours after the body of the deceased was found and decided to leave Mkoka Village to Kiteto and later on to Mkuranga where he was arrested on S"' September 2023 at Jaribu Mpakani Village in Mkuranga District. The piece of evidence was corroborated by the evidence of PW5, PW7 and PW9. Flowing from the aforestated evidence, I have found it established that the chain of events from the testimony of PW5 which corroborated the 2"'' accused person's caution statement, iinks the 2"'' accused person in the aileged involvement in the deceased's homicide. It is now a settled position through decided cases that the very best of the witnesses In any criminal trial is an accused person who freely confesses his guilt. [See the case of Emmanuel Stephano v. Republic, Criminal Appeal No. 413 of 2018 [2021] TZCA 101 (9 April 2021)]. Equally, in the case of Menroof January Haule v. Republic, Criminal Appeal No. 121 of 2022 [2024] TZCA 69 (20 February 2024), the Court of Appeal upon reproducing the appellant's confession in his caution statement reasoned as follows on page 18 through 19 of its judgment: 13 "/f is our considered view, and as rightiy found by the iearned trial Judge that, aii these facts provide overwhelming evidence ofthe appellant's participation in the commission ofthe offence. In the circumstances, and taking into account that the appellant did not challenge the admissibiiity ofthe said statements during the trial, we agree with Ms. Mgimba that challenging them at this stage ofan appeal, is nothing but an afterthought In the case of Mohamed Haruna Mtupeni and Another v. Republic^ CriminalAppealNo. 259of2007[2010]TZCA 141:[4June 2010: TanzLII], the Courtstated that: "The very best ofthe witnesses in any criminal trial is an accused person who freely confesses his guiit." Similarly, in the instant appeal, it is our settled view that, what is contained in the appellant's statements is the best evidence, we can have on what transpired on that fateful night" All the same, the testimony of PW5 that he received a text message from the deceased at 21:00 hours on the 28^^ December 2022 that the deceased was with the 2""^ accused at the time; and that in Exhibit P3 on the 2""^ accused's confession that he left with the deceased at Mkoka Village, is corroborated by the contents of Exhibit PI on the 1^ accused's confession that the 2"^ accused left with the deceased from Mkoka with the intention to steal the motorcycle ridden by the deceased. I have also considered the 14 confession of DWl in Exhibit P2 that he received TZS 70,000 out of the agreed amount of TZS 180,000 from the 2"^ accused after he returned; and the act of the 2"^ accused to escape from Mkoka Village after the information on the killing of the deceased circulated in the village which corroborates the 2"^ accused's confession in Exhibit P3. That said, I find the evidence adduced by DWl and his confession vide Exhibit P2 reliable and of evidential value as the same corroborated the testimony of PW5, PW2, PW3, PWIO and Exhibit P3 as underscored by the Court of Appeal in the case of Lusugu Duwe v. Republic, Criminal Appeal No. 76 of 2014. On page 8 through to 9, it was held: . that an accomplice shall be a competent witness against an accused person; and conviction is not illegal merely because It proceeds upon the uncorroborated testimony ofan accomplice. However, we are aware that as a matter of practice, such evidence should be taken with due care, or that it may require corroboration. See the cases of Mwinyi Mohatned Abdalla v. SMZ[1988]T.LR. 37(CA)and PatrickJeremiah v. Republic, Criminal Appeal No. 34 of2006, CA T(unreported). The testimony of the prosecution witnesses and Exhibit PI as well as the 2"^ and 1^ accused persons' confessions points to no other person than the 2"^ 15 accused that it is the 2"^ accused person who was involved In the killing of the deceased on the date of the incident. It is my further view that despite the testimony of DWl that he was beaten and forced to sign on an empty paper, and that of DW2 that he was forced to sign the blank white papers with black lines connoting that they did not sign the statement voluntarily or did not sign them at all, I find the same unmerited. I opine so on the reason that the accused persons were duly represented by seasoned advocates who were knowledgeable of the procedure to object the admission of the caution statements when procured involuntarily or if the accused persons had not given the statements at all. However, both Mr. Hacks and Mr. Kweka, learned advocates for the and 2"*^ accused persons, respectively, did not object to the admission of Exhibit P2 and P3. Needless to say, if admission of the caution statements would have been objected to, this Court would have had an opportunity to conduct trial within a trial to establish if the same were procured involuntarily or were not made by the accused persons at all. Admittedly, failure to object to the admission of Exhibits P2 and P3 is tantamount to admission that the same were 16 properly procured as it was stated by the Court of Appeal in the case of Joseph Deus Sahani and Another v. Republic, Criminal Appeal No. 564 of 2019 [2022] TZCA 411 (11 July 2022) on page 11 through to 12 that: 'It is a settled law that the contents ofan exhibit which was admitted without any objection from the appellant were effectually proved on account offailure to raise an objection at the time ofIts admission In evidence. In the case of Emmanuel Lohay and Udagene Yatosha v. Republic, Criminal Appeal No. 278 of2010 (unreportedj the Court, when faced with an akin situation, held that: 'It Is trite law that Ifan accused person Intends to object to the admlsslblllty ofa statement/confession, he must do so before It Is admitted and not during cross examination or during defence - Shihoze Semi and Another v. Republic(1992) TLR 330. In this case, the appellants 'missed the boat'by trying to disown the statements at the defence stage. That was already too late. Objections,Ifany, ought to have been taken before they were admitted In evidence."[Emphasis added]. With that principle in mind, I hold that it was an afterthought on part of the accused persons to raise that they did not give the statements and/or that the same were given involuntarily at the stage of their defence. 17 I have also considered the testimonies of PW8 and PW9 on the interrogations they did with the and 2"^ accused persons culminating to the recording of their caution statements admitted in evidence as Exhibits P2 and P3, respectively. In so doing, I was guided by the case of Paulo Maduka & Others v. Republic, Criminal Appeal No. 110 of 2007 [2009] TZCA 69(28 October 2009) in which it was held on page 11 that: "There is no doubt that a confession to an offence made to a poiice officer, is admissibie in evidence. The very best of witnesses in any criminai triai is an accused person who confesses his guiit However, such ciaims of accused persons having made confessions shouid not be treated casuaiiy by courts ofjustice. The prosecution shouid aiways prove that there was a confession made and the same was made freeiy and voiuntariiy. The confession shouid have been "free from the biemishes of compuision, inducements, promises or even seif- haiiucinations... Evaluating the testimonies of PW8 and PW9 on the manner they interrogated and recorded the caution statements, and the information they received from the 1^ and 2"^^ accused persons which is similar to the contents of Exhibits P2 and P3, I find PW8 and PW9 as credible witnesses and their evidence reliable which prove that that the confessions of the accused persons before 18 them were voluntarily made.[See section 27(1) and (2)of the Evidence Act, Cap. 6 R.E. 2022 hereinafter "the Evidence Act^. For that matter, this Court is justified to accord weight to their respective testimonies and Exhibits P2 and P3. Ail the same, despite DW2's denial of killing the deceased during his defence evidence, Exhibit P3 which contain his own confession, is strong evidence that he was the one who killed the deceased in cooperation with another person introduced to him by his friend Chitungula. Although the 2"^ accused denied to have known the 1^ accused and the deceased, his evidence that he also resides in Mkoka Village coupled with the evidence of DWl that he very well knew the 2"^ accused and the later knew very well the deceased,justifies this Court's reliance on the prosecution evidence that he knew the 1^ accused and the deceased. I have also drawn negative inference on the act of the 2"^ accused to vanish from his place of residence in Mkoka Village immediately upon the information on the death of the deceased until 5^^ September 2023 when he was arrested at Jaribu Mpakani Village in Mkuranga District in Pwani Region using a different name of Charles Masigose in order to hide his identity. 19 Relying on section 10(2) and (4) of the Evidence Act, Cap. 6 R.E. 2022, the 2"" accused's act of hiding for almost nine months until his arrest in a different region while using different names is a relevant fact to prove his attempt to escape from liability for killing the deceased. See also the case of Miraji Idd Waziri SImwana and Another v. Republic, Criminal Appeal No. 14 of 2018 [2020] TZCA 387(7 July 2020) where the Court of Appeal reiterated a settled principle that conduct by an accused after or before the incident may spell his guilt. Despite DWl's denial of his participation to arrange the stealing of the motorcycle during his defence evidence. Exhibit P2 prove that he participated in the plan. Again, I have drawn a negative inference on the 1^ accused's leaving Mkoka Village and hiding at an unknown place from when the deceased was buried until his return to Mkoka Village on 23"' February 2023. Again, the Court has drawn an inference pursuant to section 10(2) and (4) of the Evidence Act, on the 1^ accused's act of hiding for two months. His hiding is a relevant fact to prove that he escaped from being arrested and prosecuted for his involvement in the plan to steal the motorcycle in which the deceased was killed. 20 However, from the entire record of this case, there is no evidence tying the accused with the killing or participation in the killing of the deceased. According to Exhibit P2 and P3 and the testimonies of PW8 and PW9, the accused person participated with the 2^^ accused person in a plan to steal the motorcycle ridden by the deceased in consideration of TZS 180,000. My above position is buttressed by the testimony of PW9 reproduced below: '7 ivas the one who recorded the caution statement Sehewa did not admit to have committed the offence. But he participated to cail the iate Peter to go to his house. Sehewa participated for the aim of getting money. There was no any other intention apart from getting money. Sehewa's intention was to get money and to steai the motorcycie together with his coiieagues and to seii it in order to get money. These are what I have recorded in the statement I noted that Sehewa's offence was to participate in the stealing of the motorcycie according to their plans. It was also conspiracy to steal the motorcycie. There is no any other offence. Based on the above, I hold that the prosecution failed to establish the offence of Murder against the 1^ accused person. Apparently, the chain of evidence of the prosecution through Exhibits PI, Exhibits P2 and P3, and the testimony of PW5, PW8, PW9, PW3 and DWl 21 leave no doubt on the involvement the 2"" accused in commission of the Murder of the deceased. The chain and the combined effect of the evidence of the prosecution has established conclusively that the killing was done by the 2"'' accused. In totality, the prosecution managed to prove beyond reasonable doubt that it is the 2"" accused person who unlawfui killed the deceased. In arriving at the above position, I have considered the variances In the testimonies of the prosecution witnesses regarding the kind of a rope used to strangle the deceased to death, the clothes and shoes worn by the deceased when he left Mkoka Village on 28"^ December 2022 and those found on his body at Kitungu A area. While PWl testified that the deceased dressed in black t-shirt, white sweater, red trouser and white snickers, PW5 testified that the deceased wore white shoes, red jeans trouser, black t-shirt and jacket with black and white colour, and PW2 informed the Court that he found the deceased body wearing a jacket with black and white colours. In Exhibit P3, the 2"'' accused confessed that the deceased wore white jacket, a trouser and white boots. As to the ropes found on the deceased's neck, admittedly, PW3 Informed the Court *fer 22 that the same were the ones found on jacket whereas PWIO, was uncertain as to whether the same were shoe or jacket ropes. Having sensibly scrutinized the entire prosecution evidence in the light of the pointed out discrepancies, I find the variances as minor which do not go to the root of the criminal case to affect the prosecution evidence. Be that as it may, as regards to the type of the shoes whether snickers or boots and the colour of the sweater or jacket as white and black t-shirt or white and black, the testimony of PWIO clarified the differences in the following words: 'We found the body was thatofmale person. The deceased wore a red trouser, black t-sMrt, jacket like sweater with white and black colour. The doth was In the form ofjacket or sweater. He wore white shoes which were in the form ofsnickers or boots. The CourtIs to believe that those are the type shoes worn by the deceased as It is difficult to explain how the shoes was made of." Again, the variances as to the kind of rope found on the deceased's neck, the kind of shoes or the colour(s) of the jacket the deceased wore do not diminish the evidence of the prosecution that the deceased died from unnatural cause caused by suffocation secondary to strangulation committed by the 2"^^ accused person in cooperation with another person. In the case of Mzee Ally Mwinyimkuu @ Babu Seya v. Republic, Criminal Appeal iSr 23 No. 499 of 2017 [2020] TZCA 1776 (17 September 2020), the Court of Appeal cited with approval its previous decision in the cases of Said Ally Ismail V. Republic, Criminal Appeal No. 249 of 2008(unreported), Marmo Slaa Hofu & 3 Others v. Republic, Criminal Appeal No. 246 of 2011 (unreported), the Court of Appeal added that: "7/7 Said Ally Ismail v. Republic, Criminal Appeal No. 249 of 2008(unreported), for instance, we observed: "It is not every discrepancy in the prosecution case that wiii cause the prosecution case to flop. It is oniy where the gist of the evidence is contradictory then the prosecution case wiii be dismantled". "In another case; Marmo Slaa Hofu &3Others v. Republic, Criminal Appeal No. 246 of 2011 (unreported), we succinctly added: "... normal discrepancies are bound to occur in the testimonies of witnesses, due to normal errors of observations such as errors in memory due to lapse of time or due to mental disposition such as shock and horror at the time ofoccurrence. Minor contradictions or inconsistencies, embellishments, or improvements on trivial matters which do not affect the case for the 24 prosecution should not be made a ground on which the evidence can be rejected in its entirety." On that premise, I safely conclude that the variances are trivial and thus incapable of affecting the gist of the prosecution's strong evidence on the Z"'' accused person's involvement in the homicide of Peter Habel Mkambi @ Majanga. I therefore ignore the same as in my profound opinion, the said variances cannot at any rate form a basis upon w/hich the entire prosecution evidence can flop or dismantle. As to the ingredient of malice aforethought, the testimony of PW3 and Exhibit PI established that the deceased died from suffocation secondary to strangulation. PW3 testified that when conducting post mortem examination of the deceased's person, he found the cervical bone of his neck broken with ropes, his mouth, and nose had blood clots, his tongue had increased in size and protruded outside, his eyes had biood clotting known as peteachal hemorrhage, and his neck had blood clotting marks, which made him conclude that the cause of death was from suffocation secondary to strangulation. Exhibit P3 aiso revealed the manner in which the 2"'' accused and his colleague killed the deceased by strangling him with shoes ropes whiie he 25 held the deceased in order to accomplish the mission of killing him. They abandoned the body along the road and left with the motorcycle after the killing. On that account, it cannot be vouched that the culprits did not intend to put to an end the life of the deceased person, Peter Habel Mkambi @ Majanga. Exhibits P3 is also a clear evidence of the 2"^ accused's malice aforethought to kill the deceased in the course of stealing the motor vehicle. The above prove the second ingredient of the offence of Murder that the killing of the deceased by the 2"^ accused person and his colleague was premeditated by malice aforethought. In view of the above observations, I find that the prosecution managed to prove the offence of Murder contrary to sections 196 and 197 of the Penal Code against the 2"^ accused person beyond shades of doubts and therefore discharged its burden of proof under section 3(2), 110 and 111 of the Evidence Act. On the basis of my finding that the offence of Murder was not proven against the 1^ accused person, I find the accused person, Sehewa Adson Chomola, not guilty of the offence of Murder he stands charged under sections 196 26 and 197 of the Penal Code. Consequently, I acquit him from the charge of Murder laid against him before this Court. However, based on my findings that the prosecution managed to prove the offence of Murder against the 2"^ accused person, I find the 2"^ accused person, Baraka Jeremia Lubereje @ Zilimunda @ Charles Masigose Isaya guilty of offence of Murder of Peter Mabel Mkambi @ Majanga contrary to sections 196 and 197 of the Penal Code and I proceed to convict him forthwith. It is so ordered. H.A. KINYA^ Uj X t •y JUDGE V- 23/09/2024 Court: Judgement delivered today, 23''^ September 2024 in the presence of Mr. Shabani Kabelwa, learned State Attorney, the 1^ and 2"^^ accused persons in person and Mr. Deckrine Kweka, learned Advocate who appeared 27 for the 2"^ accused person but also held brief for Advocate Bahati Hacks for the accused person. H.A. KINY^KA JUDGE 23/09/2024 SENTENCE Upon conviction of the 2"^ accused person of the offence of Murder of Peter Mabel Mkambi @ Majanga, I am now enjoined to Impose appropriate sentence as provided by the law. As correctly submitted by learned counsels from both sides, sections 197 of the Penal Code read together with section 322 of the CPA provide a punishment for an offender convicted of Murder to a mandatory sentence of death by handing. Having convicted the 2"'' accused person Baraka Jeremia Lubereje @ Zilimunda (5) Charles Masigose Isaya of the offence of Murder contrary to section 196 and 197 of the Penal Code, Cap. 16 R.E. 2022, and pursuant to section 197 of the Penal Code, Cap. 16 R.E. 2022, I hereby sentence Baraka Jeremia Lubereje @ Zilimunda @ Charles Masigose Isaya to death by hanging. 28 It is so ordered. ^ H.A. KINY;^ JUDGE 23/09/2024 Right of appeal to the Court of Appeal fully explained. —-t * COURr H.A, KINYAKA O vo ■y JUDGE > 23/09/2024 29