final REPUBLIC VS EVAREST PETRO MNDEME AND 2 OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT HAI CRIMINAL SESSION CASE NO. 38120 OF 2023 REPUBLIC VERSUS 1. EVAREST PETRO MNDEME 2. NICHOLOUS HAPPYNESS MNYONE 3. ROBERT JOSEPH AFYA @ ZOMBI JUDGMENT 18/11/2024 & 29/11/2024 SIMFUKWE, J The accused persons, Evarest Petro Mndeme, Nicholous Happyness Mnyone and Robert Joseph Afya @ Zombi, stand charged with the offence of Murder, contrary to section 196 and 197 of the Penal Code [Cap 16 R.E. 2022]. The prosecution, represented by Ms. Agatha Pima and Rose Sule Senior learned State Attorneys, sought to prove that on the 19th day of August 2023 at Gwang’a village within Same District in Kilimanjaro Region, the accused persons murdered one Daniel Albert 1 Mndeme (hereinafter referred to as ‘the deceased’). The accused persons denied to had committed the offence charged. In a bid to prove the charge, the prosecution paraded a total of seven witnesses and tendered one exhibit. The witnesses who testified were PW1 ASP Damian Joachim Chiluma, PW2 Dr. Karim Elias Kakuru, PW3 Mrs Debora w/o Daniel Albert, PW4 Mr. Philipo Albert, PW5 Ms. Nimzana Albert Mndeme, PW6 Mr. Labieti Zawadi Kajiru and PW7 G.1547 D/CLP Salum. PW1, ASP Damian Joackim, stated that he was the OCCID of Same District. His primary responsibilities were to prevent crimes, to investigate cases and arrest criminals. He testified that on 19th August 2023, he was at his office in Same District. On the night of 19th August 2023, at around 22:00 hours, while at home, he received a phone call from the village chairperson of Gwang’a village in Chome Ward. The chairperson informed him that two youths, one of whom was suspected of stealing a sack of charcoal, had been assaulted by civilians and were at the health centre. One of the youths was identified as Daniel Albert. At around 22:50 hours, PW1 received another phone call from Evarest Mndeme, who informed him that one of the assault victims at Shengena Health Centre had passed away. PW1 illustrated that Shengena Health 2 Centre is approximately 45 to 50 kilometres from Same Town. PW1 then informed the OCD about the incidence and headed to Shengena Health Centre, in the company of other police officers. They arrived at around 00:30 hours on 20th August 2023. At the health centre, PW1 met the village chairperson and the doctor on duty. The doctor briefed him, stating that the casualties were taken there by good Samaritans. One of the casualties died while undergoing treatment. PW1 inspected the body of the deceased and noted significant wounds on the head, bruises, the shirt had blood stains and appeared dusty as if the deceased was dragged. The deceased was identified as Daniel Albert. PW1 also saw the surviving victim, Philipo Albert, who had wounds on his head but could not be interrogated at that time as his condition was unfavourable. PW1 continued to explain that further interrogation of the village chairperson revealed that Daniel and his fellow had been assaulted by several people at Mgambo hamlet, Gwang’a village. PW1 testified that on 20th August 2023 in the morning, information from informers indicated that the incident occurred around 17:00 hours on 19th August 2023. The informers alleged that Daniel Albert was seized by militiamen, who took him to the village chairperson. He was assaulted by a group led by the 3 village chairperson (1st accused). The assailants were identified as the village chairperson, one militiaman Mussa, Nicholaus (the 2nd accused), Robert Joseph Afya @ Zombi (3rd accused) and one Yona. PW1 stated further that he summoned the village chairperson at Same Police Station at 08:30 hours and placed him under arrest based on the received information. He conducted an oral interrogation and assigned another officer to continue recording the statement of the chairperson. He then returned to the health centre, where he found Philipo Albert in a stable condition and able to record a statement. Philipo informed PW1 that Daniel Albert was his sibling and he found him being assaulted by the aforementioned individuals by using sticks and clubs. Also, Philipo disclosed that he was assaulted when attempting to rescue his brother. PW1 testified further that, after recording Philipo’s statement, PW1 and his team visited the scene of crime at Mgambo hamlet, where they saw blood stains. They confirmed that Daniel and Philipo were residents of Malieni village, a nearby village. Further interrogation of other witnesses corroborated the involvement of the accused persons in the assault incidence. 4 In respect of the body of the deceased, PW1 informed the court that the same was examined in the presence of his relatives and that after an autopsy, it was prepared for burial. PW1 concluded his testimony by stating that he assigned the case file to an investigator. Two suspects were apprehended, while the third accused, Zombi, was arrested later. Two additional suspects remained at large, and efforts to locate them were on progress. PW1 identified the village chairperson, Nicholaus, and Robert Joseph Afya @ Zombi the accused persons herein. PW2 Dr. Karim Elias Kakuru, a medical officer at Shengena Health Centre, testified that he is a doctor in charge and has been working there since July 2022. His responsibilities included treating patients, disseminating the public and conducting autopsies. PW2 explained that on the night of 19th August 2023, at approximately 19:00 hours, two siblings, Daniel and Philipo Albert, were taken to Shengena Health Centre with head injuries. In addition, Daniel had leg wounds, blood-stained and dusty clothes, while Philipo had injuries on his head only. The injuries were caused by blunt objects and appeared to be recent, not exceeding two hours old. The casualties were accompanied by the village chairperson of Gwang’a village. PW1 knew the said chairperson 5 as he had worked with him before, and Shengena Health Centre is at that village. PW2 said that he prioritized treating Philipo, who was not severely injured, following standard medical principles to avoid losing both patients. Philipo's injuries were stitched. Thereafter, PW2 attended Daniel, who was in a critical condition and was bleeding profusely. PW2 said that while treating him, Daniel's breathing ceased, and signs of brain death occurred. PW2 confirmed Daniel’s death on 20th August 2023. PW2 informed his relatives and others who were present. Thereafter, at around 01:00 hours on the same day, police officers arrived at the health centre, and PW2 showed them Daniel’s body. He conducted an autopsy of Daniel's body in the presence of the father of the deceased, two police officers, and a fellow employee. The autopsy revealed severe head injuries, 4cm wide and 3cm deep. Thus, the cause of death was severe injuries on the head and haemorrhage. PW2 finalised by tendering a post-mortem examination report, which was admitted as exhibit P1. Concerning the other casualty Philipo, PW2 stated that he continued receiving treatment. PW2 identified the village chairperson as the first accused person. 6 PW3, Mrs. Debora Daniel Albert, testified that she was the wife of the late Daniel Albert. On 19th August 2023, she went to the hills to collect firewood in the company of her husband. While there, a man named Sheshe, who was also collecting firewood, informed her that her husband had been caught with charcoal. PW3 had to follow her husband to the location where strangers with sacks of charcoal claimed to have apprehended him. When she reached there, she suggested that they should take him to Same, but they insisted on calling their boss first. PW3 narrated that she returned home and informed her in-laws about the incident. Later, they received a phone call informing them that her husband was being assaulted. Accompanied by her sister-in-law, Nimzani, and her brother-in-law, Philipo, they went to Mgambo area in Gwang’a village, where they witnessed the village chairperson, the first accused, assaulting Philipo with a stick randomly. PW3 said she also saw her husband bleeding after being beaten by the 1st accused and others. Her sister-in-law intervened, then Daniel and Philipo were taken to Evarest’s homestead. PW3 followed them but left after being threatened by the 1st accused. Thereafter, PW3 received a phone call requiring her to take clothes to her husband and Philipo at Shengena Health Centre. They delivered the 7 clothes but did not inquire about their condition, believing that they were undergoing treatment. However, at around 03:00 hours, she was informed by her sister-in-law that her husband had passed away. She confirmed the information at the hospital and then returned home. PW3 finalised his testimony by identifying the assailants as the 1st, 2nd and 3rd accused persons, among the five people who assaulted the deceased. PW4, Mr. Philipo Albert, testified among other things that on 19th August 2023 at around 17:00 hours, he received a phone call from his sister-in-law, informing him that his brother, Daniel Albert, was being assaulted at Mgambo area in Gwang’a village. He immediately went to the scene alone and found the village chairperson the 1st accused, together with Mussa, Mnyone, Robert, and Yona assaulting Daniel with sticks. PW4 specified that he tried to intervene by asking Evarest, but the group turned on him and began assaulting him on his head and legs. After being assaulted, they were taken to the village office at Gwang’a village. The civilians who were present advised the first accused to take them to hospital. They were subsequently taken to Shengena Health Centre, where they received medical care. At about 02:00 hours, police officers arrived, by that time Daniel had died. PW4 said he informed the police officers that Daniel had been killed by Evarest. The police officers 8 confronted Evarest, challenging his actions as a chairperson, and then instructed him to leave. PW4 continued to testify that the following morning, he was referred to Same District Hospital for further treatment. That, he also gave a statement to the OCS of Makanya Police Post. Just like other witnesses, PW4 also identified the accused persons herein as the culprits. PW5, Ms. Nimzana Albert Mndeme, testified inter alia that on 19th August 2023, she was at home when her brother Philipo (PW4) and her sister-in-law Debora (PW2) informed her that Daniel Albert, her brother, was being assaulted for allegedly stealing charcoal. She accompanied them to Mgambo area in Gwang’a village, where she found Daniel and Philipo seated on the ground and being assaulted on their heads and knees by the accused persons herein, Mussa Kadabu, and Yona. PW5 recognized them as residents of Chome, a nearby village. PW5 stated further that she tried to intervene by persuading the assailants to stop, particularly Evarest and Nicholaus, who promised to stop. At around 18:00 hours, Evarest knocked Daniel on the knees with a stick, forcing him to stand up. PW5 continued to state that the following morning on 20th August 2023, Daniel had passed away at Shengena Health Centre. PW5 said that she 9 informed the Police Officers about the incident and accompanied them to Mgambo area, where they documented the scene and took photographs, including images of bloodstains on the road. PW5 confirmed in court that the individuals who assaulted her brothers were from her village and identified them as the accused persons herein. PW6, Mr. Labieti Zawadi Kajiru, testified about events surrounding the death of Daniel Albert. He elaborated that on the evening of 19th August 2023, at around 19:00 hours, he received a phone call from the 1st accused, the chairperson of Gwang’a village. He requested him to visit Shengena Health Centre. That, the 1st accused mentioned that the youths from Malieni including Daniel Albert, were caught and assaulted on allegation that they had stolen charcoal. Accompanied by others, PW6 went to Shengena Health Centre, where he found Daniel and Philipo being treated. Both of them were bleeding severely. When he inquired about the incident, the 1st accused explained that Daniel was allegedly caught stealing charcoal and he was assaulted. PW6 advised reporting the matter to the police station. He gave the 1st accused the contact of the OCS of Same Police Station. At around 03:00 hours, PW6 was informed about Daniel's death. He called the 1st accused to confirm. He was informed that the police had already 10 arrived. That, the relatives of the deceased demanded that the burial should take place at Evarest’s home due to his alleged involvement. PW6 attempted to mediate. He coordinated with the police to visit the crime scene at Mgambo area, where blood stains were found. The police drew a sketch map and later joined the group at the health centre, where statements were recorded. PW6 clarified that the villages of Bwang’a and Malieni are close to each other. He disclosed that Daniel had never been suspected of any offence previously. He emphasized his role in calming tensions and facilitating police procedures to ensure the case was handled lawfully. The last prosecution witness was PW7, G.1547 D/CPL Salum, a police officer. PW7 testified that on 28th August 2023, he was directed by the OCCID, ASP Damian Chilumba, to travel to Chome Ward at Gwang’a village to investigate the murder case. He said upon arrival at the scene of crime around 15:00 hours, he witnessed bloodstains and drew a sketch map. Statements were recorded from witnesses, and it was reported that five individuals were involved in the assault: the accused persons herein and two others who are MG Mussa (a militiaman), and one Yona. That, they proceeded to Shengena Health Centre. According to the investigation, the assault was allegedly activated by a claim that the 11 deceased was found with a sack of charcoal belonging to the chairman, although no theft report had been made before the incident. That, on the same day, the 2nd accused was arrested at his homestead, while the 1st accused had been apprehended earlier. The 3rd accused was arrested on 6th September 2023 after returning to the village. That, Yona and MG Mussa were still at large. According to PW7 the 2nd accused was implicated based on witness statements from PW3, PW4 and PW5 as well as the accused's own confession. That, the second accused admitted being summoned at the scene by his uncle, the 1st accused. In respect of the weapons used to commit the offence, PW7 testified that the same were not seized, as they were not found at the scene. It was the testimony of PW7 that after completing the investigation, he submitted the case file to the OCCID for further legal actions. Finally, PW7 identified the accused persons who were before the court. After hearing the prosecution's case, the Court found that a prima facie case had been established against the accused persons. Upon being called to enter their defences, the 1st accused, Evarest Peter Mndeme, testified as DW1. Giving his evidence on oath and led by his counsel, Ms. Faygrace Sadallah, he informed the Court, among other 12 things, that he was the village chairperson of Gwang’a Village in Chome Ward. His responsibilities included leading village meetings, ensuring the safety of civilians and their properties, and attending ward development meetings. Testifying on what transpired on the material day, DW1 stated that on 19th August 2023 in the morning, he was at the farm and returned home around 11:30 a.m. or 12:00 noon. Thereafter, he received a phone call from two youths who were burning charcoal at his farm at Ngujini area near the forest. He said the youths, were from Iringa but he had forgotten their names. The said youths informed him that they had apprehended someone stealing charcoal. DW1 stated further that he called MG Mussa and headed to the scene. He explained that the walking distance from his homestead to the farm was about one hour to one and a half hours. Upon arrival at the scene, he and others apprehended the alleged thief and began heading to the village office. DW1 explained that while on the way, Mussa and Yona who were ahead met relatives of the alleged thief. He stated that a quarrel arose between the relatives, the militiamen and neighbours. DW1 averred that he attempted to resolve the quarrel, but the number of people increased at 13 the scene. The civilians assaulted the deceased. DW1 added that despite the situation, he managed to resolve the quarrel and decided to take the injured individuals to hospital instead of the village office. DW1 noted that Philipo who appeared in court was the sibling of the deceased. He noted that the journey from the scene to hospital took approximately ten minutes on foot. They arrived at the hospital few minutes to 19:00hrs. The deceased was bleeding severely while Philipo had injuries but stable. At the hospital, they began attending Philipo. He said the other injured person was given first aid and left aside. The doctor on duty attended casualties, and later the doctor in charge arrived. The deceased was stitched few minutes to 22:00 hrs. DW1 asserted that those who caused the chaos did not reach at the hospital. He further stated that he had already informed the police about the incident. When the deceased passed away at 22:00hrs, DW1 informed the police officers about the death of the deceased. He was directed by the police officers to summon those who were burning charcoal and the militiaman. He stated that police officers arrived at the hospital at around 1:00hrs and instructed him to report at the police station next morning. That, on 20th August 2023, DW1 complied to the police's order and went 14 to the police station for interrogation. He emphasized that he was not arrested but complied to the order voluntarily. DW1 denied the charges against him. He argued that at the forest, they were alone, and if he had any evil intention, he could have not taken them to the village. He explained that the deceased was being escorted to the village office when the relatives intervened. That’s why the civilians assaulted the deceased. That, he took the deceased to the health centre so that he could be treated and be well. DW1 concluded his evidence by urging the court to consider him as a leader. That, when there is commission of offence, he has a right to take the criminal to the police station. He said that that’s what he was doing when something interrupted and he could not take the deceased to the police station. DW2, Mr. Nicholaus Happyness Mnyone (second accused), stated that he was before the court because he was suspected of causing the death of one Daniel Albert Mndeme, which was alleged to have occurred on 19th August 2023. He clarified that at the time of the alleged murder, he was 17 years old and in Form Four at Chalao Secondary School, located in Gwang’a village at Chome Ward. 15 DW2 explained that on the fateful date, he had been at home and after finishing the laundry, he got ready to attend tuition at around 12:00 p.m. He stayed at the tuition until around 17:00 p.m. to 18:00 p.m., then, he returned home. While at home, DW2 received a phone call from the 1st accused, who directed him to meet him at Mgambo hamlet in Gwang’a village. He followed him at Mgambo hamlet, where he found many people gathered. After greeting the 1st accused, DW2 alleged that the 1st accused told him to take a sack of charcoal, which was near two individuals who were injured. DW2 was required to take the sack of charcoal direct to the village office of Gwang’a. He complied to the instruction and then returned to the homestead of the 1st accused. DW2 recalled that on 20th August 2023, two men went at home and introduced themselves as police officers. They asked if he was Nicholaus Happyness Mnyone, a student at Chalao Secondary School, he confirmed. They also asked his age, and he told them that he was 17 years old. After that, the police officers handcuffed him. When DW2 asked the reason, they told him not to worry and that he could find out at the police station. DW2 stated further that he was then taken to Same police station, where he was interrogated. He was asked if he knew the 1st accused, and he 16 confirmed that he did, as he was residing at the 1st accused’s homestead. That, the police officers told him that because he knew the 1st accused, they wanted him to cooperate and testify that he had seen the 1st accused assaulting Daniel Albert. DW2 said that since he refused to heed to their instruction, the Police officers became hostile and threatened him, punishing him by taking a prize and punching his finger. They continued beating him, and then they brought a document and required him to sign it, he signed. DW2 testified further that on 25th August 2023, they were taken before Hon. Hozza- RM, suspected of having murdered Daniel Albert. DW2 concluded by asserting that the charges against him were not true and that he was being wrongfully remanded for an offence he did not commit. He prayed for justice, stating that the case against him had been fabricated. DW3, Mr. Robert Joseph Afya, stated that he works as a bodaboda driver in Malieni village, Chome Ward, and resides in Mbeta village. DW3 informed the court that on 19th August 2023, he was transporting luggage from Malieni to Gwang’a village. While on the way, he met Mussa, a militiaman, who asked him to take him to Mgambo hamlet, as Mussa 17 alleged to have been called by his chairman. DW3 agreed and carried Mussa to the location. DW3 expounded that, when they reached near the scene, Mussa instructed him to drop him there. DW3 said that he saw many people at the scene. After dropping Mussa, Mussa paid him TZS 1000 and told him to leave. Then, DW3 continued with his work. DW3 denied any involvement in the assault of the deceased, stating that he was charged with murder which he did not commit. He suggested that perhaps he was seen when he dropped off Mussa, and people suspected him. He concluded by praying the court to set him at liberty. That marked the end of prosecution and the defence case. I have keenly examined evidence presented by both parties. The central issue for determination is whether the prosecution side has managed to prove the offence of murder beyond reasonable doubt. In criminal cases, it is a well-established legal principle that the duty to prove a case beyond reasonable doubt lies squarely with the prosecution. This cornerstone principle is enshrined under section 3(2)(a) of the Law of Evidence Act [CAP 6 R.E. 2022]. Conversely, the accused has no obligation to prove his innocence and the burden of proof does not shift to the accused. In the case of Director of Public Prosecutions vs 18 Shishir Shya Msingh (Criminal Appeal 141 of 2021) [2022] TZCA 357 (16 June 2022) Tanzlii at page 17 the Court of Appeal held that: We must emphasize that in criminal trials the prosecution is bound to prove the case beyond reasonable doubt instead of shifting the burden of proof to the accused…” Turning to the case at hand, the three accused persons are jointly charged with the offence of murder. Under Section 196 of the Penal Code (supra), the following ingredients of the offence of murder must be established cumulatively: i. That, the deceased named in the charge actually died and whether he died unnatural death. ii. That, it was the accused person who actually caused the death of the deceased. iii. That, the killing of the deceased was with malice aforethought. On the first ingredient of the offence whether the deceased named in the charge sheet actually died; there is no dispute that the deceased, Daniel Albert Mndeme, died on 20th August 2023 at Shengena Health Centre within Same District in Kilimanjaro Region. This fact is substantiated by the post-mortem examination report, (Exhibit P1), which clearly 19 confirms the death of the deceased. According to the testimony of PW2, a Medical Officer, the cause of death was severe head injuries and haemorrhage proving that the death was unnatural. The second element is whether it was the accused persons who caused the death of the deceased. According to the prosecution’s evidence, it was alleged that the accused persons, together with two individuals who are still at large, caused the deceased's death by beating him with sticks and clubs. The alleged violence stemmed from accusations that the deceased attempted to steal a bag of charcoal. In support of the charges, the prosecution presented three purported eyewitnesses whose evidence must be scrutinized accurately to determine whether it conclusively proves, beyond reasonable doubt, that indeed it was the accused persons who caused the death of the deceased. PW3, the wife of the deceased, testified that she was informed that, her husband had been caught stealing charcoal and that those who apprehended him told her to wait while they contacted their ‘boss’. She stated that she went to inform her relatives and later received information that her husband was being assaulted. Upon her arrival at the scene, she claimed to have seen the first accused assaulting Phillipo, the deceased’s brother, and saw her husband bleeding. However, during cross- 20 examination by Ms. Fay, PW3 asserted that she was present when the assault began. In contrast, under cross-examination by Mr. Fred Kimaro, representing the second accused, she admitted that she did not see the second accused because she had returned home. Furthermore, during cross-examination by Mr. Phillip Njau, learned counsel for the third accused, PW3 testified that she found the deceased lying on the ground when she arrived. These contradictions in PW3’s testimony undermine her credibility and raise doubts about her ability to reliably tell the events. In the case of Shaban Daud v. The Republic, Criminal Appeal No. 28 of 2000 (unreported), the Court observed ways of determining the credibility of a witness by stating that: "... Credibility o f a witness is the monopoly of the trial court only in so far as demeanor is concerned, the credibility of a witness can be determined in two other ways: one, when assessing the coherence of the testimony of that witness. Two, when the testimony of that witness is considered in relation with the evidence of other witnesses, including that of the accused person.” Furthermore, scrutiny of PW4’s evidence revealed that he was attacked when he inquired why his brother was being assaulted. He claimed to 21 have witnessed the deceased being assaulted with sticks and identified the accused persons as the assailants. However, during cross- examination, PW4 stated that when he arrived, he found his brother bleeding. This piece of evidence indicates that the assault had occurred earlier. Thus, PW4 did not know what transpired before. PW5 testified that she found Phillipo and the deceased seated and bleeding at the scene. She said that she persuaded the accused persons to stop assaulting them, which they did. When her evidence is considered alongside the testimonies of PW3 and PW4, the contradictions in PW5’s account raise significant doubts about the prosecution’s case. This is due to the obvious inconsistency that PW4, who was the first among the witnesses to arrive at the scene, gave conflicting testimony regarding PW3’s presence and the number of people who were present. PW3 and PW5, who recounted events that occurred after PW4’s arrival, also gave inconsistent accounts. PW3 stated that he found the 1st accused beating PW4, and the deceased was bleeding, while PW5 said she saw the accused persons beating the deceased. These inconsistencies across the three eye witnesses undermine their overall credibility. Therefore, this court is of considered opinion that the prosecution has failed to establish beyond reasonable doubt that the accused persons 22 caused the death of the deceased. While the cause of death was stated by PW2 to be severe head injuries and haemorrhage, no witness directly linked the accused persons with the act of inflicting such injuries. The available evidence suggests that the fatal assault had already taken place before the witnesses arrived at the scene. Thus, the issue on whether the accused persons caused the death of the deceased is answered in the negative. In respect of the third element of the offence of murder, whether the killing of the deceased was done with malice aforethought, the Court finds that this issue does not warrant further determination, as the second element of murder has been determined negatively, causing the third element to automatically collapse. Notwithstanding the foregoing and without prejudice to the findings on the second element, even if the causation of death had been established, the prosecution has nonetheless failed to prove malice aforethought to the required standard of beyond reasonable doubt. The term malice aforethought is well elaborated under section 200 of the Penal Code, as follows: 23 “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate The decision of the Court in the case of Enock Kipela vs The Republic (Criminal Appeal 150 of 1994) [1999] TZCA 7 (10 June 1999) Tanzlii elaborated on how to ascertain as to whether the killing 24 committed by the accused was done with malice aforethought. At page 7 it was held that: " ...usually, an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had the intention must be ascertained from various factors, including the following: (a) The type and size of the weapon which was used in the attack leading to the death of the deceased; (b) The amount of force which was used by the attacker in assaulting the deceased; (c) The part or parts of the body of the deceased where the blow/s of the attacker was directed at or inflicted; (d) The number of blows which were made by the attacker, although one blow may be enough depending on the nature and circumstances of each particular case; (e) The kind of injuries inflicted on the deceased's body; (f) The utterances made by the attacker if any, during, before or after the attack; 25 (g) The conduct of the attacker before or after the incident of attack." Equating the cited authority to the circumstances of this case, the prosecution did not establish malice aforethought based on the evidence presented. This conclusion is drawn for the following reasons; first, the prosecution evidence does not clearly demonstrate how the accused persons participated in the attack of the deceased and did not establish evil intention. The adduced evidence reveals that the purported eyewitnesses arrived at the scene and found the deceased already bleeding, without witnessing or identifying the assailants who inflicted the injuries that caused the bleeding. Moreover, the court is mindful that the charge of murder is grave and carries severe penalty. As such, the court has taken caution to ensure the prosecution has proved the elements of the offence charged beyond reasonable doubt. With regard to the conduct of the accused persons particularly the 1st accused person, this court observes that his actions do not suggest malice aforethought. It is undisputed fact that the 1st accused took the deceased to hospital and remained there until the deceased passed away. This conduct does not support an inference of an intention to cause the deceased's death. 26 Considering that the two critical elements of the offence of murder namely, causation of death and malice aforethought have not been established by the prosecution at the required standard, I find the accused persons, namely Evarest Petro Mndeme, Nicholas Happyness Mnyone, and Robert Joseph Afya @ Zombi, not guilty of the offence of murder as charged. Consequently, I hereby acquit the three accused persons of the offence of Murder forthwith under section 235(1) of the CPA. It is so ordered. Dated and delivered at HAI this 29 th day of November 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 29/11/2024 Right of Appeal explained. 27