Chacha Mwita Tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL SESSION CASE NO 10156 OF 2024 REFERENCE NO. 202404172000010156 REPUBLIC VERSUS CHACHA S/O MWITA @MARWA@BEBE@ PAUL S/O JOHN ……...1ST ACCUSED MAGIGE S/O MATIKO @MAKABE................................................2ND ACCUSED JUDGEMENT OF THE COURT 26/07/2024 & 25/09/2024 Kafanabo, J.: Chacha Mwita @Marwa @Bebe @Paul John (hereinafter referred to as the ‘1st accused’), and Magige Matiko @Makabe (hereinafter referred to as the ‘2nd accused’), are jointly indicted for one count of the offence of murder, contrary to sections 196 and 197 of the Penal Code, Cap. 16 R. E. 2022 (hereinafter the ‘Penal Code’). In this judgment the 1st accused and the 2nd accused shall be jointly referred to as the ‘accused’. The information for the offence of murder, contrary to sections 196 and 197 of the Penal Code, was duly read over to the accused who pleaded not guilty to the information for the murder of Dickson James Eliud and thus, under the circumstances, a full trial was inevitable. At the trial the Republic 1 was represented by Messrs. Adolf Kissima and Jonas Kivuyo, learned State Attorneys, and in the final stages of the prosecution case, the conduct of the matter was under Mses. Agma Haule and Happiness Machage, learned State Attorneys. The 1st accused was represented by Mr. Amos Wilson, learned Advocate, and the 2nd accused enjoyed the services of Mr. Emmanuel Gervas, learned Advocate. A brief background of the matter is that the accused are indicted of murdering one Dickson James Eliud. It is alleged that on 08/12/2021 at Kwikuba hamlet in rural Musoma, the accused and four others (not in court) murdered Dickson James Eliud, (hereinafter the ‘deceased’). It is alleged that on the evening of 7th December 2021, the accused and four other persons (hereinafter referred to as the ‘culprits') departed at one of the areas in the Butiama District riding on two motorcycles, each motorcycle carrying three persons heading to Bwai in the rural Musoma. The main aim was to steal/rob motorcycles that were in good condition in the targeted area. Upon arrival in Bwai, they headed to Kwikuba, being the hamlet they chose to carry out their malevolent plan. It was further alleged that the ‘culprits’ decided that the 2nd accused and Busensera Kimori should remain at the centre of Kwikuba hamlet, and the other culprits left heading to Mugango with a view that they would stop at a desolate place. The culprits continued to communicate via phones. Meanwhile at the centre, the 2nd accused approached the motorcycle he desired and asked the rider to take him and Busensera Kimori to Mugango. 2 It was further alleged that the deceased was the rider of the motorcycle the culprits supposedly hired. The deceased left the said centre carrying the two culprits, i.e. the 2nd accused and Busensera Kimori as passengers, taking with him his bag of fruits which he bought at one of the vendors at the centre. Since there was communication between the culprits via the phone, upon arrival at the area of the incident the other culprits emerged from their hideouts and the rider was asked to slow down and stop. Then the culprits (passengers) with the help of other culprits started strangulating the rider (the deceased). In the said wrangle, the culprits cut off the underwear of the deceased and crammed/shoved it in the mouth of the deceased to prevent him from making noise, they tied his hands from behind whilst continuing to strangulate him. The said deceased, unfortunately, died fighting for his life in the said tussle, given that it was difficult for him to get help at the area of the incident because it was an uninhabited area. Thereafter, the culprits took the fruits and distributed the same among themselves and ate. Subsequently, it was alleged that the culprits took the motorcycle that was being ridden by the deceased and rode the same to Sabasaba in Butiama. It was alleged that the motorcycle was ridden by the 1st accused who was tasked to ride the same. After arriving at Sabasaba area in Butiama, the motorcycle was placed under the custody of Busensera Kimori, and later the 1st accused and Busensera Kimori took the motorcycle to Kwisarara Village. It was also alleged that, later, the said motorcycle with registration number MC179CYQ was sold to Samuel Mtatiro Bhoke. The selling price of the motorcycle was TZS 900,000/= out of which TZS 700,000/= was paid as 3 an advance and the written agreement regarding the sale would be executed after full payment of the agreed purchase price. Since the accused pleaded not guilty to the charge, the Republic was aligned to prove that the accused were responsible for the murder of the deceased. The Republic marshalled nine (9) witnesses and tendered four exhibits. The nine witnesses who testified before the court were F6665 D’Sgt Hamis, who testified as PW1, and Dr. Regina Bernard Msonge, a medical doctor from Musoma Municipal Hospital who testified as PW2. The third witness was H290 D’Cpl Samuel, who testified as PW3, and Festo Masyaga Nkaina a brother of the deceased, who testified as PW4. Another witness was Anna Mafuru Manyonyi, who testified as PW5, and Wandere Magesa who testified as PW6. Mseleta Makonge, bodaboda rider, testified as PW7 and G3785 D’Sgt John testified as PW8. The last witness was Vitalis Cosmas Matiko testifying as PW9. The Republic also tendered four exhibits namely; certificate of seizure dated 20/01/2022 admitted as exhibit ‘P1’. The motorcycle with registration number MC179CYQ, black in colour, with two images of the tiger on each side of the fuel tank, with engine No. ST1162FMJMOC21227 and chassis Number LEAPCKOE7M0058309 which was admitted as exhibit P2. A caution statement of the 1st Accused Chacha Mwita@ Marwa@Bebe@ Paul s/o John admitted as exhibit ‘P3’. Also postmortem report of the body of Dickson James Eliud admitted as exhibit ‘P4’. The Republic’s case was opened by the testimony of PW1, F6665 D’Sgt Hamis. A Police Officer working in the Criminal Investigation Department at 4 the Regional Crimes Officer’s (RCO’s) office in the Mara region. He narrated that on 05/01/2022 he was assigned by the OCCID to go to Dodoma to follow up with the suspect regarding the murder of Dickson James Eliud who was murdered on 08/12/2021 at Kwikuba, in rural Musoma under case file number MUS/IR/4474/2021. On the said trip to Dodoma, PW1 was accompanied by other Police Officers namely G1500 D’Cpl Hassan, G2542 D’Cpl Amar, and G3785 D’Cpl John. He testified that upon arrival in Dodoma and after following the relevant protocols, on 07/01/2022 based on the intelligence information they succeeded in arresting the 1st accused, Chacha Mwita Marwa, at the area known as ‘Image’. They took him to Dodoma Central Police where he interrogated the accused who confessed to knowing the murder event that took place at Kwikuba in the Musoma on 08/12/2021. PW1 further explained that the 1st accused made it bare that the motorcycle they robbed from the deceased was Supertiger, black in colour, with registration number MC179CYQ and was later sold at Kwisarara village. The 1st accused informed PW1 that the other conspirators were Magige Matiko @Makabe, Otaigo Mwikwabe, Busensera Kimori, Marwa Mwikwabe, and another person called Magere. They collaborated in the theft of a motorcycle and selling the same in the Tarime District and the 1st accused was hired as a rider of the same because he has the experience. It was further testified that, thereafter, the 1st accused’s statement was recorded, read to him and he signed the same. 5 PW1 also testified that after he had recorded the statement of the 1st accused, they handed the 1st accused to the RCO Dodoma because he was a suspect in other cases there and was required for interrogation in other criminal incidents in Dodoma. Thereafter, PW1 returned to Musoma and later, he reported to the RCO on what transpired in Dodoma. Then, he went to Tarime, at Kwisarara village to follow up with other suspects and recover the motorcycle as an exhibit. Upon arrival at Kwisarara they, jointly with the village leaders, followed up on the motorcycle but could not recover the same because the person to whom the motorcycle was sold, Samuel Mtatiro Bhoke, was not in the village as he had travelled by using the motorcycle that they were looking for. The leaders/elders promised to cooperate with the police and they advised to call a village meeting as a simple way of addressing the matter. It was further testified by PW1 that on 20/01/2022 at 10.00 a.m. Samuel Mtatiro Bhoke surrendered the motorcycle to the Village Chairman’s office. He was so informed by the Chairperson of the Kwisarara village Mr. Vitalis Cosmas. Immediately thereafter, PW1 together with G1500 D’Cpl Hassan, G2542 D’Cpl Amar, and G3785 D’Cpl John left Musoma for Kwisarara Village in the Tarime District. They arrived at the Kwisarara Village at around 04.00 p.m., and upon arrival, they received an explanation from Mr. Vitalis Cosmas, the Chairman of the village. Samuel Mtatiro Bhoke and Marwa Gabriel (the acting village executive officer) were also present at the village Chairman’s office. They found the motorcycle that was surrendered by Samuel Mtatiro Bhoke, it was a Supertiger, black, with registration number MC179CYQ, and around the fuel tank it had stickers with an image of a tiger. 6 Thereafter, they inspected if the motorcycle and were satisfied that it was the one they were looking for by checking the engine and chassis number. Then they filled out a certificate of seizure before taking custody of the motorcycle. Thereafter, they took the statement of the Village Chairman, Vitalis Cosmas. PW1 also testified that on 30th June 2022, they called Samuel Mtatiro Bhoke and took his statement. He informed PW1 that the motorcycle was sold to him by Magabe Matiko and Busensera Kimori. He said it was sold to him for 900,000/= and the amount paid in advance was 700,000/= and 200,000/= was to be paid later. It was further agreed that the contract of sale would be signed, and documents of ownership would be handed over to Samuel Mtatiro Bhoke after full payment of the agreed purchase price. Thereafter, the sellers could not be traced by the buyer. It was further testified by PW1 that they continued to follow up on the suspects especially Magige Matiko who was living in Tarime and Butiama districts. On 06/08/2022 at Kyabakari in the Butiama District, they succeeded in arresting Magige Matiko with the help of the intelligence information they received. He mentioned his conspirators who were living in the Butiama District, these were Otaigo Mwikwabe, Marwa Mwikwabe, and Magere whose whereabouts were unknown. As regards the motorcycle, Magige Matiko said that he and Busensera Kimori sold the same to Samuel Mtatiro Bhoke. The statement of 2nd accused, Magige Matiko, was taken by D’Cpl John at around 03.00 p.m. on 06/08/2024. 7 Moreover, PW1 tendered a seizure certificate of the motorcycle that was admitted as exhibit ‘P1’ and a motorcycle with registration number MC179CYQ, black colour, with two images of the tiger on each side of the fuel tank, with engine No. ST1162FMJMOC21227 and chassis Number LEAPCKOE7M0058309 which was admitted as exhibit ‘P2’. PW1 also tendered the caution statement of the 1st Accused Chacha Mwita@ Marwa@Bebe@ Paul s/o John which was admitted as exhibit ‘P3’. In cross-examination by the learned defence counsels, PW1 reiterated his testimony in chief and added that a copy of the motor vehicle registration card indicated that the owner of exhibit P2 was a company of which he did not remember the name, but the possession was with the deceased. It was also testified that on 20/01/2022 PW1 took the statement of the chairman of the village, but they did not take the statement of Samuel Mtatiro Bhoke because there was an emergency to follow up. PW1 also stated that it was the intelligence information that assisted them in arresting the 1st accused in Dodoma. He arrested the 1st accused on 07/01/2022, but he did not remember when he was taken to Court for the 1st time. PW1 also did not remember how long they stayed with the 1st accused in police custody since his arrest. PW1 testified that he left the 1st accused in Dodoma because he was a suspect in other offences. However, PW1 was not aware of any specific offense for which the 1st accused was prosecuted. The testimony of PW1 was also that after sometime he followed the 1st accused and transferred him from Dodoma and brought him to Musoma 8 in 2022, but did not remember exactly when that happened but it was either end of July or August 2022. Upon arrival in Musoma the 1st accused was remanded at Musoma Central Police. Again, he did not remember how long the 1st accused spent in police custody. PW1 further testified that an accused is supposed to be arraigned in Court within twenty-four hours after the arrest, but not in every offence because other offences require deep and thorough investigation. However, he did not know what delayed the accused from being taken to Court earlier. PW2 was Dr. Regina Bernard Msonge a Medical Doctor from Musoma Municipal Hospital. She testified that on 09/12/2021 she conducted a postmortem examination on the body of Dickson James Eliud. The wounds were on the right-hand side of the deceased’s body, and in both eyes, there was a haemorrhage (blood from ruptured blood vessels). She concluded that the deceased’s cause of death was suffocation following strangulation. He prepared a postmortem report which was tendered and admitted by this court as exhibit ‘P4’. PW3 was H290 D’Cpl Samuel, a police officer working at the Criminal Investigation Department in the RCO’s office in the Mara Region. He testified that on 08/12/2021 at 08.00 a.m. they went to Kwikuba village together with the OCD and OCCID because there was a homicide. Upon arrival at Kwikuba, they found that Dickson James Eliud had been killed, and PW3’s duty was to draw a sketch map of the crime scene. The person who led him in drawing the map was Wandere Magesa. 9 PW4 was Mr. Festo Masyaga Nkaina, a relative of the deceased. He testified that on 08/12/2021 he went to the deceased’s home at Kwikuba and found that his younger brother (the deceased) had been killed and his body had been taken by the police officers. The following day they went to the hospital and saw the body of his younger brother, he was dead. The body was prepared and they took the body to Tarime for burial. He also found that at the time he was killed, he was with his motorcycle, and there were people he was carrying (riding with) at that time he was killed. The registration number of the motorcycle was MC179CYQ. The motorcycle’s colour was black, it had the image of an animal on both sides of a fuel tank. For purposes of proving that the deceased was at Kwikuba with a motorcycle, the prosecution called PW5, Anna Mafuru Manyonyi, a fruit vendor at Kwikuba hamlet. She testified that on 07/12/2021 she was at her place of business, the deceased bought some fruits from her and left. The deceased went there with a motorcycle with registration No. MC179CYQ, black in colour. The following morning, she was informed that there was an incident, teacher Dickson had been killed. They went to the crime scene and found that it was true that teacher Dickson was killed. Further, the witness positively identified exhibit P2 (the motorcycle). PW6, Wandere Magesa, was another witness for the prosecution. He was a chairman of Nyakato Hamlet in Nyang’oma village. He testified that on 08/12/2021 they heard a scream for help to which they responded. They found that the teacher of Kwikuba had been killed and dumped in his area of administration. He did not remember the name of the teacher, but he was a teacher at Busambaa Secondary School. He called the police at Mugango 10 Police Station, also police officers from Musoma went to the crime scene. Then they examined the crime scene, the body of the deceased was there, his watch and slippers. There was also a rag of the deceased’s underwear in the mouth of the deceased. Then a sketch map of the crime scene was drawn by the police officer. Mseleta Makonge (PW7), a ‘bodaboda’ (motorcycle) ridder was another witness for the prosecution. He testified that he was riding a motorcycle (bodaboda) of the deceased and was supposed to return the bodaboda at 6.30 p.m. every day, except on Saturday which was not a working day for the deceased. The motorcycle he rode had registration number MC179CYQ, it was black with images of a tiger on the sides of the fuel tank. It was further testified that on 07/12/2021 after work, he returned the motorcycle to the deceased who was coming back from the farm with his family. He handed over the motorcycle and paid him TZS 7000/= being daily amount to be paid, and then he left. However, at around 11.00 p.m. the wife of the deceased woke him up because they were neighbours. She informed him that Dickson left for the centre but had not returned. They looked for the deceased that night without success. The following day, they were informed that a person had been killed at Rwamugango. PW7 and other people ran to the scene and found that it was teacher Dickson who had been killed. PW8 was G3785 D’Sgt John, working at the Criminal Investigation Department in the Regional Crimes Officer’s office in the Mara Region. He testified that on 06/08/2022 he was instructed by the OCCID to interview a 11 suspect named Magige Matiko (the 2nd accused) and take his statement. The suspect was accused of being involved in the murder of a teacher called Dickson James Eliud. The murder took place between Kwikuba and Mugango villages. The suspect was arrested by him and F6665 D’Sgt Hamis. The suspect was arrested in the Madaraka suburb of Kyabakari, in Butiama. He was arrested on 06/08/2022 at around noon (12.00). PW8 testified that the 2nd accused gave his caution statement voluntarily which was to the effect that he colluded with other culprits to rob motorcycles, the plan which led them to kill the deceased and rob his motorcycle at a place between Kwikuba and Mugango. The mission was executed on 07/12/2021 and the robbed motorcycle was sold to Samuel Mtatiro Bhoke of Kwisarara village, rural Tarime. PW8 recognized 2nd accused in the dock by touching him. For purposes of proving that the motorcycle, exhibit P2, was surrendered by Samuel Mtatiro Bhoke, the Republic called PW9, Vitalis Cosmas Matiko, a Chairman of Kwisarara Village in the Tarime District. He testified that in January 2022 police officers arrived at Kwisarara village and went to the residence of Samuel Mtatiro Bhoke whom they said was in possession of a motorcycle that was robbed in an incident where murder was committed. Thereafter, PW9 and the police officers went to Samuel Mtatiro Bhoke’s place, but they only found his wife and the kids. The wife told them that Samuel had travelled, then they left, but police officers asked PW9 to convene a village meeting informing the villagers that there was a motorcycle involved in a murder case and required by the police and should be surrendered to the police or village office. The police explained to him that 12 the motorcycle was Supertiger, black with registration No. MC179CYQ. The village meeting was convened, and on 20th January 2022 one motorcycle with the particulars explained above was surrendered to his office. PW9 testified further that, the motorcycle was surrendered by Samuel Mtatiro Bhoke, he surrendered the motorcycle in the presence of PW9 (the Village Chairman) and in the presence of Marwa Gabriel, the acting village executive officer. When Samuel Matatiro Bhoke was asked how he got the motorcycle, he said it was sold to him by Magige Matiko and Busensera Kimori. Thereafter, PW9 called the police officers who arrived at the Village Chairman’s office on the same day at 04.00 p.m. and found PW9, Marwa Gabriel, and Samuel Mtatiro Bhoke, then PW9 handed over the motorcycle to the police officers. Thereafter, they signed a document regarding the handover of the motorcycle to the police officers. PW9 recognized exhibit P1 as a document they signed, and exhibit P2 as a motorcycle which he handed over to the police officers. The police officers the left with the motorcycle. Additionally, PW9 testified that Samuel Mtatiro Bhoke did not leave the Village Chairman’s Office with the Police on 20/01/2022, that is he was not arrested by the police. Further, PW9 did not know where the said Samuel was, he saw him for the last time in 2022 and he never asked about his whereabouts because it was not his business. Also, he has never been asked about the whereabouts of Samuel Mtatiro Bhoke by any person recently. After the testimony of nine Republic’s witnesses, the prosecution case was closed and this court was called upon to determine whether a prima facie case had been established by the Republic. After a review of the 13 evidence on record, this court found that the accused had a case to answer and thus they opted to enter their defence. The defence case was opened by the testimony of DW1, the 1st accused, who identified himself as Bebe Mgaya Bebe, a resident of Dodoma, he denied other names as indicated in the information and proceedings before the Court. He also denied any involvement in the murder of the deceased. DW1 testified that he was arrested by five police officers when he was plumbing a site (a house) on 07/01/2022 in the Makuru area, at Oysterbay Street in the Dodoma Region. He was arrested by Ibra amongst other police officers in Dodoma, and after the arrest he was handcuffed. He was not informed why he was arrested; he came to know the reason for his arrest at night when the police officers were beating him. The police officers searched and ransacked him, they took his wallet and two mobile phones which were never returned to him. After the arrest he was taken into a car which headed to the UDOM police station, it was still daylight when he was arrested. Then when they arrived at the UDOM police station, all five police officers entered the station with him. In the room which they entered, there were two tables, clubs, and pipes. Then, he was blindfolded by a police officer called Hamisi, and was ordered to sit down and put his handcuffed hands on his legs, and a steel pipe was shoved between the legs and his hands and he was hanged over a pipe placed over between the two tables, in a ‘bat’ style. He testified further that the police officers beat him severely demanding that he should admit to 14 the commission of murder in Musoma. Police officer Hamisi beat him for a long time whilst mentioning the names of Magige, Busensera, and others. DW1 further testified that later he was taken down from the hanger and a blindfold was removed. He laid down as he was not feeling well, then, the said Hamisi (a police officer) took a gun from Ibra (another police officer) and struck him with the butt and/or stock of the gun below his armpit. Then Hamisi stepped on DW1’s groin, below the navel which damaged his urinary bladder. That was evident because DW1 started bleeding through his penis and urine passed uncontrollably given that was completely naked after being stripped. Further testimony of DW1 was that the said Hamisi stabbed him twice with the bayonet placed on muzzle of the gun. Further, before being taken out of the police station to the car he was ordered to sign a document, since he had been severely beaten, and did not know how to read and write, Hamisi took DW1’s right-hand thumb and placed the same on the inkpad and then placed a print of the said thumb on several papers which Hamisi was holding. He testified that he was tortured forcing him to admit that he committed murder in Musoma. He was bleeding profusely and he lost consciousness as he found himself at a hospital upon regaining consciousness. He later learned that he was at General Hospital, in Dodoma. He was handcuffed on the bed on both his left hand and leg and the other hand was on an ‘IV drip’. The third day the police car came and took him from the hospital to Central Police Dodoma where he stayed for two days, then he was transferred to Musoma. From Dodoma to Musoma, he was accompanied by four police officers including Hamis. He reiterated that he 15 was arrested on 7th January 2022 and was taken to Court on 27th October 2022. All that time he was in police custody in Musoma. DW1 testified further that he did not know Magige Matiko and could not mention people he did not know in the alleged caution statement admitted as exhibit P3 by the Court, and did not say that the motorcycle was sold to Samuel Mtatiro Bhoke as alleged. It was further testified that the evidence given by Hamis, that he committed other offences in Dodoma was not true, because he never committed any offence in his life. He was working at Dodoma police as a plumber; they could not fail to arrest him if he had committed any other offence as alleged or at all. DW1 also testified that he did not bring a medical report to prove that that he was tortured because the police took him to the hospital and they were keeping everything, he was not allowed to touch anything. DW1 also testified that he did not give any statement to the said Hamis and that is why he was not taken to the justice of peace. DW2 was the 2nd accused, Magige Matiko Makabe, who testified that the allegations of murder against him were not true. He was arrested on 6th August 2022 at 08.00 a.m. at Pida, Kyabakari in the Butiama District. He was arrested by police officers by the names of Hamisi, Samwel, John, and Amar. After the arrest, he was taken to the Musoma Central Police. Upon arrival at Musoma Central Police, whilst blindfolded and handcuffed from behind, he was led to one of the rooms, and the police officers removed the blindfold and was asked to strip all his clothes, which he heeded and his mouth was covered by a plastic bag by Hamisi, a police officer. 16 Then the police officers took clubs and a piece of metal and started to beat him on his back whilst seated and his hands handcuffed above his legs. He was beaten continuously for three hours, he was wounded, and has scars on the back and the neck. DW2 further testified that, initially he did not know the aim of the torture inflicted on him, but subsequently he was told that he was a suspect in the murder that occurred in 2021. As a result of being beaten, he bled profusely and was taken to a dispensary, after treatment he was returned to a police cell where he stayed for a long time. He denied knowing the 1st accused as he met him at the police station after his arrest on 06/08/2022. Further, DW2 testified that on 27/10/2022 he was taken to Court after Hamisi had ordered him to sign a document which he did not know its contents. He denied knowing about the sale of a motorcycle to Samuel Mtatiro Bhoke in the Kwisarara village. After the testimony of DW2, the defence case was closed and upon prayer by the parties, they were ordered to file final written submissions which they heeded. The Republic submitted that even though the killing of the deceased was never eye-witnessed, the 1st accused’s confession and the circumstantial evidence on record link the accused with the murder of the deceased. Citing the case of Mathias Bundala v. Republic Criminal Appeal No. 62 of 2004. It was further submitted that the best evidence comes from the accused who confesses his guilt citing the case of Rashid Yusuph @ Martin and 2 others v Republic, Criminal Appeal No. 407 of 2022, and section 27(1) of 17 the Evidence Act, Cap. 06. R.E. 2019. It was also submitted that since the 1st accused provided a detailed narration of how the incident was executed, it was clear that the 1st accused voluntarily gave a statement to the police. It was also submitted by the prosecution that the confession of the 1st accused led to the discovery of exhibit P2 which was surrendered by Samuel Matatiro Bhoke. Further, the submission was that the information of an accused under police restraint is admissible under section 31 of the Evidence Act (supra). Also citing the case of Republic v. Damian Andrea@ Kankono, Criminal Sessions Case No. 130 of 2022. Moreover, it was submitted that it is not disputed that a retracted confession and a confession of co-accused needs corroboration, but the rule is relaxed that not every detail of the confession needs to be corroborated, citing the case of Fredy Jason Shelela@Masoud and Another v. Republic, Criminal Appeal No. 628 of 2020. Additionally, the prosecution submitted that according to the doctrine of recent possession, whoever is found with the stolen item is responsible for the offence committed. However, the prosecution distinguished the above principle by invoking constructive recent possession because the accused had knowledge that Samuel Matatiro Bhoke was in possession of the motorcycle and he surrendered the same to PW9, citing the case of Athumani Mohamed Nyanyi @ Ismail Adamu and 2 Others vs Republic (Criminal Appeal No. 624 of 2021) [2024] TZCA 444 (11 June 2024) 18 It was also not in dispute that the prosecution could not call Samuel Matatiro Bhoke, a key witness in proving their case. However, they sought refuge in the case of George Jonas Lesilwa v. Republic, Criminal Appeal No. 374 of 2020 submitting that the evidence of PW8 be given credence as Samuel Mtatiro Bhoke did not witness the murder. Mr. Wilson for the 1st accused submitted that the prosecution’s case rests on circumstantial evidence and the 1st accused’s caution statement. Since the prosecution failed to call Samuel Mtatiro Bhoke as a witness and who was the key witness, and given that they failed to tender the motor vehicle registration card of the motorcycle, exhibit P2, which was read during committal proceedings and during the preliminary hearing, adverse inference be drawn against the prosecution’s case. The said failure also raises strong reasonable doubt. It was also submitted that no identification parade was conducted to identify the accused. Moreover, there was no explanation to justify why the said Samuel Mtatiro Bhoke’s statement was taken on 30th June 2022 which is more than five months since he handed over the motorcycle to the police. Exhibit P1 (certificate of seizure) was also attacked in that it did not have the signature of Samuel Mtatiro Bhoke who allegedly handed over the motorcycle to PW9, and was present when the police officers filled out the certificate of seizure. It thus raises doubt as to whether the said Samuel Mtatiro Bhoke surrendered the motorcycle to the Village Chairman as alleged. The further submission was that admission of an exhibit is not enough to make the doctrine of recent possession applicable, citing the case of 19 Alhaji Ayoub Msumari and Others v. Republic, Criminal Appeal No. 136 of 2009, and the case of Ally Mbelwa v. Republic, Criminal Appeal No. 109 of 2015. The reliability of PW1 was also attacked as he failed to state other offences which faced the accused in Dodoma. It was also argued that a retracted or repudiated confession must be corroborated with independent evidence citing the case of James Msumule@Jembe & 4 Others v. Republic Criminal Appeal No. 284 of 2021. Moreover, the caution statement allegedly constituting the confession of the accused did not mention the name of the deceased and non- compliance with sections 53(a)(b)(c)(ii) and 57(2)(a) of the Criminal Procedure Act, Cap. 20 R.E. 2022. Mr. Wilson argued that the testimonies of PW1 and PW8 are unreliable as they were based on the alleged intelligence information which was never expounded. It was also submitted that the accused spent a long time in police custody without justification which raises doubt and justifies the 1st accused’s explanation that he was tortured. Mr. Gervas’ submissions for and on behalf of the 2nd accused did not materially depart from the submissions made for and on behalf of the 1st accused, and therefore there is no need to revisit the same in this judgment but have been considered in substance. In the light of the evidence above, and as depicted in the proceedings, and taking into account the submissions by the parties, this court is called upon to determine whether the Republic has proved her case that the accused are responsible for the murder of Dickson James Eliud (the 20 deceased) beyond a reasonable doubt. In answering this major issue before the court, this court is guided by the provisions of section 196 of the Penal Code Cap. 16 R.E. 2022 which reads: ‘Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder’ In light of the above section, and in order to prove that a person is guilty of murder it must be proved that the death of a person has been caused by an unlawful act or omission with malice aforethought. It is also the salutary principle of law and practice that the prosecution in criminal trials has to establish and prove the allegations beyond a reasonable doubt as required by law, whose duty never shifts to the accused. Section 3(2)(a) of the Evidence Act, Cap. 6 R. E. 2019 is relevant; also see the case of Six Ilanga @ Msaka vs Republic (Criminal Appeal No. 484 of 2020) [2024] TZCA 95 (23 February 2024). It is inexorable that in order to prove the aforementioned, the answers to the following questions are vital; one, whether the said Dickson James Eliud is dead, if that is answered in the affirmative, the next question would be how he died, that is, whether his death was a result of natural or unnatural cause, if the death was due unnatural cause then who caused the death of Dickson James Eliud and whether the causation was a result of a lawful or unlawful act or omission. The last question would be whether the causation was with malice aforethought. As regards, the issue of whether the said Dickson James Eliud is dead, the same is not demanding to answer considering the evidence on record. 21 According to the evidence of PW2, Dr. Regina Bernard Msonge a Medical Doctor from Musoma Municipal Hospital, conducted a postmortem examination on the body of Dickson James Eliud and concluded that the deceased’s cause of death was suffocation because of the strangulation. She prepared a postmortem report which was tendered and admitted by this court as exhibit ‘P4’. Her testimony was corroborated with the testimony of PW3, H290 D’Cpl Samuel, who went to the crime scene on 08/12/2021 at 08.00 a.m. and found that Dickson James Eliud had been killed as his body was lying lifeless on the ground. Further corroboration on the fact that Dickson James Eliud was dead came from PW4 Mr. Festo Masyaga Nkaina, a relative of the deceased. He testified that on 08/12/2021 he went to the deceased’s home at Kwikuba and found that his younger brother (the deceased) had been killed and his body had been taken by the police officers. The following day they went to the hospital and saw the body of his younger brother, Dickson James Eliud, he was dead. The body was prepared and taken to Tarime for burial. Therefore, there is overwhelming evidence that Dickson James Eliud is dead and it has been proved as such by the prosecution. The next question is how did Dickson James Eliud die? PW2, as alluded to herein above, testified that the deceased’s death was caused by suffocation following the strangulation of the deceased. The postmortem report, exhibit P4, makes it clear the above cause of death. Moreover, as per the testimony of PW3 and other witnesses, the body of the deceased was found dumped, lying lifeless his clothes torn off and part of his underwear shoved into his mouth and the body had injuries. This leads to an inevitable 22 conclusion that the death of Dickson James Eliud was due to unnatural cause. See the case of Mathias Bundala vs Republic (Criminal Appeal 62 of 2004) [2007] TZCA 16 (16 March 2007). This court having concluded that the death of Dickson James Eliud was unnatural, opens the door for determining the question of who caused the death of the deceased. In this case, the prosecution has led evidence intending to prove that the accused are the persons responsible for terminating the life of the deceased. As submitted by learned counsels for the parties in this case, it is not in dispute that there was no eye witness on who caused the death of the deceased. It has also been deduced from the submissions of both parties that the evidence, in this case, relies on the retracted and/or repudiated confession of the 1st accused and the doctrine of recent possession. In considering whether the accused are responsible for the murder of the deceased, this court launches its analysis with regard to the evidence on the retracted confession of the 1st accused. It follows that the caution statement of the 1st accused and the testimonies of PW1, PW8, D1, and DW2 are vital. PW1 testified that upon arresting the 1st accused in Dodoma on 7th January 2022, he took the 1st accused’s statement which was given voluntarily. It was also testified that the 1st accused confessed to having participated in the robbery of the motorcycle together with the 2nd accused and other culprits as mentioned earlier hereinabove. And thus, as a result of the said robbery and strangulation, the deceased was murdered. The other testimony was that that the 1st accused is the one who rode the motorcycle (exhibit P2) from the area of the incident to Sabasaba in the 23 Butiama District and, later, the said motorcycle was taken by the 2nd accused and Busensera Kimori. It was also stated that exhibit P2 was sold to Samuel Mtatiro Bhoke (hereinafter referred to as ‘Samuel or Samue Mtatiro Bhoke’). This was part of PW1 testimony as regards the contents of the 1st accused’s caution statement admitted as exhibit P3 by this court. However, as alluded herein above the 1st accused (DW1) retracted and/or repudiated his confession as he denied to have made the same. He testified that his thumbprint was placed by the guidance of PW1 after being severely beaten and/or tortured by PW1 in the presence of other police officers. Moreover, in light of the testimony of PW8, the 2nd accused (DW2) informed him that he and the 1st accused participated in the unlawful act that led to the death of the deceased. It is also stated that the 2nd accused Busensera Kimori sold the motorcycle that was robbed from the deceased to Samuel. However, in his testimony, the 2nd accused denied knowing the 1st accused before his arrest on 6th August 2022. He testified to have met the 1st accused after his arrest and when he was taken to the Musoma Central Police. As earlier observed by this court, in light of the evidence on record exhibit P3 constitutes a retracted and/or repudiated confession which, in law, cannot be relied upon without being corroborated by the testimony of another independent witness. In the case of James s/o Msumule @ Jembe & Others vs Republic (Criminal Appeal No. 284 of 2021) [2024] TZCA 176 (13 March 2024) the Court of Appeal held that: “It is a settled principle of law that confession evidence that is retracted or repudiated cannot be relied upon to ground a conviction unless it is 24 corroborated by another independent evidence - See Muhidin Mohamed Lila @ Emolo and Others v. Republic, Criminal Appeal No. 443 of 2015 (unreported). It is also important to emphasize that the evidence which itself requires to be corroborated cannot be used to corroborate the retracted or repudiated confession. This position was reiterated in the case of Morris Agunda and 2 Others v. Republic [2003] T.L.R. 449, where it was stated as follows: "Evidence which itself required corroboration could not corroborate the retracted or repudiated confession of the co- appellant". In light of the above, it is clear that exhibit P3, without being corroborated by independent evidence cannot be relied upon to ground the conviction of the 1st accused or any of the accused. The question now is whether the retracted confession of the 1st accused was corroborated by independent evidence. Given the evidence on record, the retracted confession of the 1st accused was not corroborated by any independent evidence and thus it is unsafe for this court to rely on the same. Therefore the cases of Fredy Jason Shelela@Masoud and Another v. Republic (supra) and Rashid Yusuph @ Martin and 2 others v Republic (supra) cited by the prosecution are distinguishable from the present case. Moreover, even though this court has already ruled that it is unsafe to rely on the uncorroborated retracted confession of the 1st accused, it is important to highlight a few matters that either directly or indirectly touch 25 the voluntariness of the 1st accused in giving his caution statement and the conduct of the investigation and prosecution in general. First, the demeanor and conduct of PW1, a star witness of the prosecution in this case, raises eyebrows and discourtesy. PW1 was asked very key questions in cross-examination but for some reason he either muted or simply said he did not remember. For instance, PW1 did not remember how long the 1st accused spent in police custody from his arrest to the 1st time he was arraigned in court. Also, he did not remember when the accused was brought to Musoma from Dodoma, but it was PW1 who accompanied the 1st accused from Dodoma to Musoma. He also testified that he left the 1st accused in the custody of Dodoma Central Police after he had arrested him because he was wanted as a suspect for other offences there, but he did not know how long the accused spent in police custody in Dodoma, and he did not know what specific offences the 1st accused was required for in Dodoma. PW1’s answers to the questions as stipulated above and the alleged fact that the 1st accused, a suspect of a murder case who had allegedly confessed to committing murder, could be left by the investigator in another region because he was wanted for offences which the investigator of a murder case, and for which he was arrested, did not know is utterly bewildering. PW1 also withheld information in his testimony especially when he was asked how he or they knew that the 1st accused was the one responsible for the murder of the deceased taking into account that the 1st accused was the 1st suspect to be arrested by PW1 in Dodoma far away from rural Musoma 26 where the murder was allegedly committed. PW1 adamantly said that it was because of the intelligence information they received and processed. He was not ready to explain the nature of the information, its source, and which process was undertaken to obtain the same. This robbed the court of an opportunity to consider whether or not the said withheld information would be paramount in determining the relevancy of facts in terms of sections 8, 9, and 11 of the Evidence Act (supra). Moreover, contrary to the PW1’s testimony, the 1st accused was flawless in his testimony that he was brought to Musoma a few days after his arrest because they left Dodoma for Musoma on the 5th day of his arrest and since then, after arrival at Musoma, he was remanded in a police custody at Musoma Central Police until 27th October 2022 when he was arraigned in Court for the first time since his arrest on 7th January 2022. The record of the court supports the 1st accused’s testimony as to when he was first arraigned in court and when he was arrested. Moreover, the conduct of the prosecution’s witness (PW1) in not recalling key facts of the case in which he seemed to be a lead investigator, and/or withholding some crucial information from the court raises questions and doubts as to the credence of his testimony. Notwithstanding, this court recognizes that each witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness. See the cases of Mathias Bundala vs Republic (Criminal Appeal 62 of 2004) [2007] TZCA 16 and Goodluck Kyando v. Republic 2006 TLR. 27 Given the conduct of the said prosecution’s witness, this court wishes to remind the investigators and the prosecution that the court is entitled to know even a microscopic detail for purposes of dispensing justice. Therefore, an investigator cannot come to this court as witness, but hold abreast of some relevant information within their knowledge and expect the court to find their testimony credible. Besides, the Police General Orders allow investigators to take with them their notebooks for reference purposes if they deem necessary when testifying in courts as accuracy in testimonies of investigators in criminal cases is of paramount importance. Paragraph 4 of P.G.O. 282 reads: “In criminal cases, accuracy is of such importance that a Police Officer must not trust to his memory, but must enter at once in his notebook sufficient particulars of every incident or occurrence of which he is likely to be called upon to give evidence. Descriptions of persons and scenes of crime shall be noted down in accordance with the procedure laid down in the Personal Description Aid (PF.171). Further, paragraph 7 of P.G.O 282 reads: 7. (a) Police Officers, when giving evidence, will always be in possession of their notebooks and should refresh their memories from them prior to going into Court. (b) With the permission of the Trial Judge or Magistrate, the holder may (in order to refresh his memory only and not for the purpose of quoting any entry verbatim) refer to the notes relevant to the case being tried. 28 (c) If it is desired that the contents of the notebook relevant to the case being tried be put in as evidence and the notebook contains information relating to other cases or secret matters, the Police Officer should inform the Bench who may then arrange to copy or extract the relevant entries so that the notebook can be returned to the holder without compromising irrelevant material. The provisions of the above P.G.O. 282 above state categorically what is to be done by the investigators (police officers), which if practiced and implemented to the letter, would make their testimonies more credible in courts of law instead of trusting their memories which may lead to confusing and/or unreliable testimonies. This court also notes that the 1st accused stayed in police custody from 7th January 2022 to 27th October 2022 which is more than nine (09) months. The 2nd accused stayed in police custody from 6th August 2022 to 27th October 2022. This was a blatant violation of section 32(2) of the Criminal Procedure Act Cap. 20 R.E.2022 and presumption of innocence as enshrined in Article 13(6)(b) of the Constitution of the United Republic of Tanzania, 1977 as amended. Moreover, the key question which follows is that if it is true that the 1st accused voluntarily confessed to the commission of the offence as per the testimony of PW1 and the caution statement (exhibit P3), and the alleged surrender of exhibit P2, a motorcycle, on 20/01/2022 by Samuel Mtatiro Bhoke who was allegedly available upon surrender of the motorcycle, why did it take the prosecution more than nine (09) months to arraign the 1st 29 accused in court for the 1st time? No explanation was given to justify the inordinate and unconscionable delay which, per se, was inhumane torture to the accused. This suggests the truth and reliability in the testimony of DW1, the 1st accused herein, that he was sternly tortured by the police, and as a result, he suffered grave wounds that were supposed to heal before he was taken to court. His testimony is bolstered by his conduct in the course of proceedings because on various occasions he sought leave of the court to attend a short call as he could not hold his urine due to the damage inflicted on his urinary bladder because of the torture under police custody. He also, on various occasions in the course of the trial, sought permission from the court to take his medication which leave was unreservedly granted. This casts doubt on the credence of the prosecution case because PW1 testified that when the 1st accused was arrested he was healthy and looked fine, however, the prosecution did not explain why, how, and when the 1st accused fell sick in the custody of security organs. This raises further doubts on the reliability of the confession of the first accused which was retracted and/or repudiated and, yet, it is uncorroborated. It further paints badly the prosecution’s case and lowers the credence of the same. In the case of Laurent s/o Rajabu vs Republic (Criminal Appeal No. 270 of 2012) [2013] TZCA 364 (20 September 2013) the Court of Appeal held that: “Firstly, we agree with Mr. Hashim Ngole that the omission not to have a clear answer as to why there was such a long delay to charge the 30 appellant. The record shows that the incident occurred on 1-11-2009, but the appellant remained in police custody until 16-2-2010 when he was sent to court to answer his charge for the first time. We think, three months is a very long time to remain without being charged. Such a delay in charging the appellant not within reasonable time is a serious and fatal omission on the part of the prosecution's case leading to watering-down the credence of their case. For that reason, we agree with Mr. Hashim Ngole that such a delay in charging the accused (appellant) creates doubt to the credence of prosecution's case.” Applying the above observation to the present case in which the 1st accused spent more than nine (09) months in police custody and 2nd accused spent more than two months in police custody without being charged, entitles this court to consider the prosecution’s case as a sky-dive to the pond full of sludge which is very difficult to be saved from. Moreover, it is a view of this court that diligence, care, and circumspection are highly required in the investigation and prosecution of criminal cases especially on offences that carry the death penalty and lengthy penal sentences, which in this case were gloomily lacking. In the case of Mashimba Dotto@lukubanija vs Republic (Criminal Appeal No. 317 of 2013) [2014] TZCA 271 (22 October 2014) the Court of Appeal held that: “Before we conclude this judgment we wish to make one observation. There is no dispute that murder is a very serious offence which upon conviction attracts the death penalty. That being the 31 case, it is always expected that its investigation and eventual prosecution would always be done with great care and seriousness. In this case, we get the impression that the case was poorly investigated and prosecuted. We say so because in the absence of any other evidence, the prosecution case was to stand or fall on the word of the appellant regarding the alleged events of the day.” Heedlessly, the prosecution submitted that the confession of the 1st accused was sufficient to be relied upon because it led to the discovery of exhibit P2 (a motorcycle) which was allegedly robbed from the deceased after he was murdered. Given the analysis of this court hereinabove, the prosecution’s submission is a conundrum and puzzles. However, this aspect will be shortly addressed when addressing the evidence as regards the doctrine of recent possession which is related to a motorcycle allegedly owned by the deceased. Therefore, generally speaking, in light of the above analysis and circumstances as regards the 1st accused’s confession, this court, as already ruled herein above, holds that the caution statement of the 1st accused is given no evidential weight, and the retracted and/or repudiated confession thereto cannot be relied upon to convict the accused for want of independent evidence corroborating the same, and taking into account other grave doubts briefly highlighted hereinabove, from the arrest of the accused to their arraignment in court make extremely unsafe to convict them on the botched confession. 32 The other aspect of the prosecution’s case in a bid to link the accused with the murder of the deceased was the reliance on the doctrine of recent possession as regards exhibit P2 (a motorcycle). According to the evidence on record as adduced by the prosecution a motorcycle was allegedly robbed by all the culprits from the deceased in the area between Kwikuba and Mugango in rural Musoma. Then it was ridden by the 1st accused to the Sabasaba area in the Butiama District and was put in the custody of Busensera Kimori. Later, it was allegedly sold by the 2nd accused and Busensera Kimori to Samuel Mtatiro Bhoke of Kwisarara village in the Tarime district. The testimony of PW4 indicates that once, when he visited the deceased’s home, he saw the deceased with exhibit P2, a motorcycle with registration number MC179CYQ. PW5 also testified that on the night of 07/12/2021, she sold fruits to the deceased when he visited her place of business whilst riding exhibit P2. Moreover, PW7 testified that he entered into an arrangement with the deceased under which he was riding exhibit P2 for bodaboda business, commuting passengers for pay, and on every evening of the business day was supposed to handover a motorcycle to the deceased and pay him TZS 7000/=. Based on the said testimony the prosecution was of the view that exhibit P2 was owned by the deceased. Additionally, the testimony of PW1, PW8, and PW9 indicate that Samuel Mtatiro Bhoke told them that the motorcycle was sold to him by the 2nd accused and Busensera Kimori. They further testified that exhibit P2 was surrendered at the office of PW9 by the said Samuel on 20/01/2022 in the presence of PW9 and Marwa Gabriel. It is on the basis of the said facts the 33 prosecution relies on the doctrine of recent possession and/or constructive recent possession and urged this Court to convict the accused for the murder of the deceased. At this juncture, it is important to revisit the cardinals of the doctrine of recent possession. In the case of Emmanuel Magembe & Others vs Republic (Criminal Appeal No. 262 of 2012) [2015] TZCA 114 (8 December 2015) the Court of Appeal restated the elements under which the doctrine of recent possession will apply by quoting its previous decision where it was held that: “In Joseph Mkumbwa and Another (supra), the Court of Appeal set the following elements for the doctrine of recent possession. "First, that the property is positively the property of the complainant. Second, that the property was found with the suspect. Third, that the property was recently stolen from the complainant. Fourth, that the stolen thing in possession of the accused constitutes the subject of a charge against the accused. It must be the one that was stolen/obtained during the commission of the offence charged. In the said case the Court further observed that: ‘In Matola Kajuni & three Others v.R., Consolidated Criminal Appeals Nos. 145 of 2011, 146 of 2011 and 147 of 2011 the Court said:- ‘In order for the doctrine of recent possession to hold, the prosecution must establish, inter alia, beyond any doubt that the 34 alleged recovered property which is the subject matter of the charge to have been duly identified and belong to the complainant. Further in the case of Kija Nestory @ Jinyamu vs Republic (Criminal Appeal No. 455 of 2007) [2013] TZCA 363 (19 April 2013) the Court of Appeal held that: “In grounding the conviction of the appellant on the doctrine of recent possession, the learned trial judge relied on the case of Ally Bakari v. R CAT Criminal Appeal No. 47 of 1991 where the Court held that:- "If upon a charge of murder it is proved that the deceased person was murdered in a house and that the murderer stole goods from the house, and that the accused was a few days afterwards found in possession of the stolen goods, that raises a presumption that the accused was the murderer and unless he can give a reasonable account of the manner in which he became possessed of the goods, he would be convicted of the offence. Additionally, the learned trial judge was not faulted for applying the above principle in convicting the accused. The Court further, in Kija Nestory @ Jinyamu vs Republic, when revisiting its earlier decision in D.P.P.V Jachim Komba (1984) T.L.R. 216, observed that: "Cases often arise which possession by an accused person of property proved to have been stolen has been held not only to support a presumption of burglary or breaking and entering but of murder as 35 well, and if all circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however penal. Moreover, the cases of Alhaji Ayubu @ Msumari & Others vs Republic (Criminal Appeal 136 of 2009) [2010] TZCA 20 (18 March 2010), Hamisi Meure v Republic (1993) TLR 213 and Ally Mbelwa vs Republic (Criminal Appeal No. 109 of) [2015] TZCA 249 (19 August 2015) are relevant. In the light of the foregoing authorities, for a conviction on the basis of the doctrine of recent possession to stand in the present case the following aspects should be specifically proven: First, the motorcycle allegedly robbed/stolen should be proven to be the property of the complainant/deceased. Second, that the motorcycle must be proved to have been found with the accused Third, that the motorcycle was recently stolen from the complainant/deceased. Fourth, the stolen motorcycle should be in possession of the accused and should constitute the subject of a charge against the accused. It must be the one that was stolen/obtained during the commission of the offence charged. Reverting to the present case and in the light of the evidence on record, the analysis of the facts and the law is made herein below. 36 Foremost it is regarding exhibit P1, a certificate of seizure. It was alleged that the motorcycle allegedly robbed from the deceased was surrendered by Samuel Matatiro Bhoke at the office of a Village Chairman (Mr. Vitalis Cosmas who testified as PW9) on 20/01/2022. Later, on the same day, the said motorcycle was handed over to the police who prepared a certificate of seizure which was signed by the police officers and other witnesses. Thereafter, the police officers including PW1 and PW8 took custody of the motorcycle from the Village Chairman. The said certificate of seizure was admitted by this court as exhibit P1. However, after a scrutiny of the said exhibit this court has noted the following discrepancies: i. The house and/ or body that was searched and that led to the seizure of the motorcycle was that of Samuel Mtatiro Bhoke and they seized exhibit the said motorcycle (exhibit P2). This is indicated twice in a one-page document, that is at the commencement of the certification and on the signature clause. However, the testimonies of PW1, PW8, and PW9 speak louder that no premises were searched for the purpose of obtaining the said motorcycle. It was the Village Chairman who called the police and informed them that a motorcycle they were looking for had been surrendered at his office. ii. Further, the certificate of seizure does not indicate that the said exhibit P2 was taken from the office of the Village Chairman after being surrendered as testified by PW1, PW8, and PW9. Instead, it indicates that it was obtained from the house of Samuel Mtatiro Bhoke which is an afterthought. 37 iii. Moreover, Samuel Mtatiro Bhoke, the person who is alleged to have surrendered the said motorcycle to the Village Chairman, and who was allegedly present when the certificate of seizure was filled, did not sign the certificate of seizure, nor other document acknowledging either the motorcycle was found in his house after the search, nor the same was seized from the Village Chairman’s office after he had surrendered the same as alleged. iv. Another crucial dimension as regards the said certificate of seizure, is that the person whose house was allegedly searched and exhibit P2 found and seized was not called as a witness in this case. The law on this will be discussed later in this judgment. It follows that the above-listed discrepancies on the certificate of seizure vis-à-vis testimonies of PW1, PW8, and PW9 indicate a serious contradiction on the part of the prosecution witnesses which, in the opinion of this court, goes to the root of the case. The law on the inconsistency of evidence was well stated in the case of Matera Simango @ Masana vs Republic (Criminal Appeal 517 of 2019) [2021] TZCA 621 (29 October 2021). The Court of Appeal held that: ‘Similarly, we entertain no doubt that the descriptive inconsistencies and contradictions in the testimonies of the prosecution witnesses as reflected in the evidence reproduced above, is material and went to the root of the prosecution case. It is indeed, unfortunate that the two courts below did not thoroughly address those 10 inconsistencies and contradictions which are 38 apparent in the prosecution witnesses' evidence and resolve it as required by law. By way of emphasis on the importance of resolving contradictions and inconsistencies, we wish to reiterate what the Court stated in Mohamed Said Matula v. Republic [1995] T.L.R. 3 that: "Where the testimony of witnesses contains inconsistencies and, the court has a duty to address the inconsistencies and try to resolve them where possible, else the court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter. " See also the Court of Appeal decision in Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78. Under the circumstances, exhibit P1, a certificate of seizure has no evidential value in supporting the prosecution’s case on the indictment of murder against the accused. It follows that the same is accorded no evidential weight in support of the prosecution’s case. Instead, it tilts in favour of the accused by raising the following doubts: i. Where did the police officers get the said motorcycle? Did they seize it from the house of Samuel Mtatiro Bhoke, or the Village Chairman’s office, or somewhere else? ii. Who handed over the said motorcycle to the Village Chairman taking into account that there is no documentary proof that the alleged Samuel Mtatiro Bhoke was physically present at the Village Chairman’s office on 20/01/2022? iii. The further doubt is that although PW1, PW8, and PW9 testified that Samuel Mtatiro Bhoke was present when they seized the 39 motorcycle on 20/01/2022, however, his statement was taken on 30th June 2022, more than five months later and there is no justification for such inordinate delay taking into account that someone lost his life, and the person who was in possession of a motorcycle which the court is told that was robbed from the deceased is neither a witness nor an accused in this case. It is now opportune to turn heads to the subject matter of recent possession of exhibit P2, a motorcycle, Supertiger make, black in colour, with registration number MC179CYQ (hereinafter the motorcycle or exhibit P2). As alluded hereinabove, the motorcycle was allegedly surrendered to the Village Chairman on 20/01/2024 by Samuel Mtatiro Bhoke. However, this line of evidence by the prosecution witnesses especially PW1, PW8, and PW9 raises doubts in the prosecution’s case for several reasons. One, there is no direct evidence on record that suggests that the said motorcycle was handed over to the Village Chairman’s office as testified by the said three witnesses. Two, the alleged statement of Samuel Mtatiro Bhoke was taken five months after he allegedly surrendered the motorcycle to the Village Chairman. This triggers the alarm louder and poses a grave doubt on whether Samuel Mtatitiro Bhoke was present on 20/01/2022 when PW1, PW8, and other police officers went to Kwisarara Village Chairman’s office to take custody of the motorcycle. It is confounding to comprehend how the experienced police investigators, with more than 10 years of experience, whilst at the investigation stage, and other culprits still on the loose, would 40 let a golden chance of a breakthrough in the investigation simply melt. It is perplexing how a person found with a property robbed at an incident where the murder was allegedly committed was allowed to walk away without his statement on how the motorcycle came to his possession being taken immediately or shortly afterward. Instead, it was allegedly taken more than five months later on 30th June 2022. This raises a doubt whether the statement of Samuel Matiro was Bhoke was taken at all. Moreover, the drama in proving recent possession of a stolen motorcycle reached its peak when the prosecution failed to call the said Samuel Mtatiro Bhoke as a witness to prove to the court the following: i. How did he come into possession of the said motorcycle? The fact was extremely vital in proving or disproving the allegations against the accused, given that the case rests on the doctrine of recent possession. ii. Whether it was true that he handed over the motorcycle allegedly sold to him by the accused to the Village Chairman at his office on the 20th of January 2024. iii. In whose custody the said motorcycle was found in the light of the confusion created by the manner a certificate of seizure was prepared and the testimonies of PW1, PW8, and PW9. Moreover, the manifestation of the lack of diligence in handling the investigation and prosecution was clear when the hearing of this case was adjourned on the ground that the said Samuel Mtatiro Bhoke was bereaved and thus had travelled to the neighbouring country of Kenya to attend a funeral of a relative. However, on the following date to which the hearing 41 was adjourned, the prosecution made a prayer that they be allowed to tender the purported statement of Samuel Mtatiro Bhoke as his whereabouts were unknown. This court was not convinced as no reasonable step was taken by the Republic to trace him. They neither asked the village leadership nor visited his residence which was well known to the investigators of the case. Under the circumstances, it is not unreasonable to say that the conduct of the investigation team in the way they handled Samuel Mtatiro Bhoke, an extremely important link in establishing who murdered the deceased, and whom this court may pronounce that he was the heart of the investigation and prosecution in this case, is outrageously perplexing. The court understands that section 143 of the Evidence Act [Cap. 6 R.E.2019] provides that: ‘Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact.’ However, the liberty to pick and choose which witnesses to call is not without limitations. If the prosecution fails to call a key witness without justification this court is entitled to draw adverse inference against the prosecution case or any other party as the case may be. Herein below are the Court of Appeal decisions bolstering this court’s position. In the case of Simon Edson @ Makundi vs Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020) the Court of Appeal held that: 42 ‘…. the above said doubts could have been cleared by an independent witness. In this case, the pump attendants who were present on that day were crucial witnesses. Any of them ought to have been called to corroborate the evidence of PW2, PW3, and PW4. Failure to call them adversely impacted on the prosecution case. Moreover, in this case, Samuel Mtatiro Bhoke was a key witness to be called for purposes of corroborating the evidence of PW1, PW8, and PW9. In the case of Aziz Abdallah v. R [1991] T.L.R 71, the Court held, inter alia, that: "The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown the court may draw an inference adverse to the prosecution". Besides, the prosecution did not provide any evidence to prove that exhibit P2 was owned by the deceased. PW1 testified how the chassis number and engine number of the said motorcycle matched the details in the certificate of seizure but did not testify how those details of the chassis and engine number came to his knowledge before seizing the motorcycle on 20/01/2022. PW1 and other witnesses, including PW4, PW5, and PW7 testified on the registration number of the motorcycle that is MC179CYQ. However, none of the witnesses tendered any evidence proving that the said motorcycle belonged to the deceased. 43 Moreover, when PW1 was cross-examined why he did not tender a motor vehicle registration card which was listed as a prosecution exhibit in the committal proceedings and the preliminary hearing he simply muted. However, he simplified the work of the defence when he admitted that the owner of the motorcycle as per the document he saw was a company whose name he could not recall. This was bewildering to say the least, because despite the investigators and the prosecution being aware that the motorcycle belonged to a company, no officer of the company owning the motorcycle was called as a witness to at least explain how the said motorcycle was in the possession of the deceased. In addition, in the case of Allan Duller vs Republic (Criminal Appeal 367 of 2019) [2021] TZCA 689 (23 November 2021) the Court of Appeal held that: ‘The principle of adverse inference finds its basis on an assumption that the evidence which could be and is not, produced would, if produced, be unfavorable to the person who withholds it.’ In light of the above, what seemed to be a better fold of the prosecution case, that is reliance on the doctrine of recent possession which would have connected the accused, Samuel Matatiro Bhoke, the motorcycle, and the deceased crumbles unswervingly because: i. The prosecution has failed to prove that the motorcycle allegedly robbed from the deceased was the property of the deceased or that he had a lawful possession entrusted to him by the lawful owner before the same was robbed from him. 44 ii. There is no iota of evidence that proves that the motorcycle was found with the accused or that the accused parted with the possession of the same and sold or placed the same under the custody of a known or identified third party. iii. There is no speck of evidence showing that the motorcycle was stolen from the complainant/deceased immediately before or after his death given that no owner had ever reported that the motorcycle was stolen. iv. The allegedly stolen motorcycle was not in possession of the accused and there is no clear evidence that it was stolen by the accused during the commission of the alleged murder. v. Moreover, the doctrine of constructive recent possession as held in the case of Athumani Mohamed Nyamvi@ Ismail Adamu and 2 others v. Republic (supra) does not apply to the present case because the prosecution failed to prove that the accused robbed the motorcycle from the deceased and that they placed the motorcycle in the possession of, or sold the same to Samuel Mtatiro Bhoke. In the final analysis, and in the light of the foregoing, this court finds that the Republic has failed to prove its case beyond a reasonable doubt on the information for murder against the 1st accused and the 2nd accused. Under the circumstances, this court finds the 1st accused and the 2nd accused not guilty of the offence of murder levelled against them by the Republic. Therefore, this court hereby acquits the 1st accused, Mr. Chacha Mwita @Marwa @Bebe @Paul John, and the 2nd accused, Mr. Magige Matiko 45 @Makabe of the offence of murder of Dickson James Eliud. The court further sets both accused at liberty and, unless held for any other lawful cause, orders their immediate release from the detention facility where they are currently held. It is so ordered. Dated at Musorrta this Zz \Vvx’ Vv 25th day of September 2024. < K. I. Kafanabo Judge The Judgment-'was'delivered in the presence of Ms. Happiness Machage, learned State Attorney and in the presence of Mr. Amos Wilson, learned Advocate for the lst accused and also holding brief for Mr. Emmanuel Gervas, learned Advocate for the 2nd accused, and in the presence of both accused. K. I. Kafanabo Judge 25/09/2024 46