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IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 38133 OF 2023 REPUBLIC VERSUS 1. MT. 95534 CPL JACOB SYLVESTER SICHONGE 2. ALMAS ABDALLAH SELEMAN JUDGMENT 09th & 30th September, 2024 BWEGOGE, J.: The serviceman one MT. 95534 CPL Jacob Sylvester Sichonge, and a civilian namely, Almas Abdallah Seleman were charged and arraigned in this court on a heinous offence of murder c/s 196 and 197 of the Penal Code [Cap. 16 R.E. 2019]. The particulars of the offence vehemently allege that both accused persons herein, on the fateful day of 15th 1 November, 2020, at Fire BRT Bus stand within Ilala District in Dar es Salaam Region did kill one Abdul Ahmed. Both accused persons hit the sky denying the commission of offence when they were arraigned in this court. And the prosecution procured the attendance of twelve (12) witnesses in a bid to substantiate the charge herein. The accused persons were the sole witnesses for the defence. In prosecuting this case, the complainant Republic was represented by Mss. Debora Mushi, Vaileth David and Mossie Kaima, learned senior state attorneys. The 1st accused person had the services of Messrs Jerry Msamanga and Ludovick Nickson, learned advocates; and the 2nd accused person had the services of Ms. Hawa Turusia and Mr. Martin Frank, learned advocates. A short resume of the prosecution case, albeit brief, is thus: One Badi Ramadhani Badi (PW1), a key witness herein, is a motorcycle taxi rider who operated his business in the neighbourhood of Magomeni area. His parking station was at the premises of Shibamu Hotel, at Magomeni. One of his customers was the victim (deceased person) in this case one Abdul Ahmed, a resident of Tanga who used to stay at the respective Hotel when he visited the city. 2 On the other hand, the 1st accused person is a serviceman working with Tanzania Peoples Defence Force (TPDF). He was attached to the SUMA JKT with its base at Mwenge (Matrekta) of which, apart from providing security services, provides cleaning and fumigation services. In providing its services, SUMA JKT employs civilians as well who work under the supervision of servicemen. In 2020, SUMA JKT Cleaning and Fumigation Company secured a tender from UDART for cleaning UDART/BRT Bus Stations from its terminal – Kimara Mwisho, along its running way to Kivukoni/Gerezani terminals. The said cleaning services were provided during night hours after the UDART/BRT buses stopped running. It is a prosecution case that on the fateful day of 15th November, 2020 the victim in this case was in Dar es Salaam with his colleague namely, Hatibu Enzi (PW3). During the night, about a few minutes before 22:00 hrs, the victim parted company with PW3 and hired PW1 to ferry him to Kipata/Livingstone Street, Kariakoo. It was a rainy day and Jangwani area was flooded with water though vehicles could still pass. PW1 rode his motorcycle across the flooded water at low speed. A vehicle came from behind at a high speed honking its horn warning PW1 to pave the way. Eventually, PW1 rode his motorcycle sideways. Nevertheless, the passing vehicle splashed water and completely wet PW1 and the victim (his 3 passenger). The respective vehicle was a van/pickup. PW1 trailed the vehicle. It stopped at Fire BRT Bus station and picked up trash dustbins. PW1 passed by. The victim persisted PW1 to stop. It seems he was irritated by the unbecoming act of the driver of the van/pick-up who wet them. PW1 complied with the instruction of his passenger and stopped a few meters ahead of the respective vehicle and watched the passenger approaching the driver’s window of the vehicle he identified to be the property of SUMA JKT by its mark. He watched them arguing and the victim having expressed his grievances returned to the motorcycle. However, the driver alighted the vehicle and pursued the victim. Then he kicked the victim from behind. The victim fell down. Then, allegedly, the attacker (driver) unleashed fatal blows against the victim. Allegedly, another man, the 2nd accused herein, joined in the beating spree of the victim. PW1 attempted to intervene but threatened. His attempt to secure help likewise failed. He vacated the crime scene. Further, it is the prosecution case that one Issa Said Ramadhani (PW6) the taxi driver whose parking station was near the Fire BRT Bus station, watched the incident from a distance. He saw the victim being lynched by people he identified to be SUMA JKT servicemen by their attire and the vehicle/means of transport they used. He approached the scene after the 4 assailant left the victim who had sustained debilitating injuries. PW6 moved the victim from the BRT running way to the roadside. He assisted the victim in reaching his mobile phone and called his colleague who came and rushed the victim to the police station/hospital. PW3 who had parted company with the victim earlier that fateful night, received a phone call from the victim who asked for his emergency assistance. PW3 responded by rushing to the identified scene, at Fire BRT Bus station where he found the victim with debilitating injuries. Having been briefed by the victim on what had befallen him, he rushed the same to Msimbazi/Kariakoo Police Station where they made a brief statement and provided him with PF3. PW3 rushed the victim to Amana Hospital where he was later on referred to Muhimbili National Hospital. The attempt by medical practitioners to save the victim’s life was barren of fruit. Eventually, the victim died. Based on the statements made by PW1, PW3 and PW6 herein, police investigation promptly commenced. Consequently, an order for a post- mortem examination of the deceased/victim’s body was issued by the police. And one Innocent Mosha, PW2 herein, conducted an autopsy on the body on 18th November, 2020. The same made both external and dissection examinations on the deceased’s body. During the external 5 examination, PW2 observed that the deceased’s body had wounds on several parts of his body. His right thigh had bruises, femur bone broken; and his head and body had contusions. The PF3 (exhibit P1) speaks volumes of this fact. And dissection examination revealed a laceration of the victim’s liver and internal bleeding with a tumour and clotted blood in his brain. He ruled that the cause of death was multiple trauma due to physical assault. PW3 and one Akinda Ahmed identified the body of the deceased as their beloved one and victim in this case and were allowed to bury the same. It is also the prosecution case that on 04th December, 2024 PW1 was summoned to identify the suspects whom he claimed to have identified on the fateful night he witnessed the alleged assault of the victim. The identification parade was supervised by Assistant Inspector Seif, PW8 herein. The same enlightened this court that PW3 identified both accused herein among 12 lined up persons as actual suspects who committed the alleged assault. The parade register was admitted in evidence as exhibit P3. In the same vein, Captain Rosemary David Katani (PW12), the Managing Director, SUMA JKT Cleaning and Fumigation Company, enlightened this court that the roster of work she prepared for her subordinates and 6 civilians working under her in the contracted cleaning services rendered to BRT Bus stations on 13th November, 2020 indicates that CPL Jacob Sechonge, the 1st accused herein, was on duty from 15th November, 2020 to 18th November, 2020. The respective roster was admitted in evidence as exhibit P4. Likewise, one Sadick Kipolelo (PW11), a contract security guard who was on duty at the main gate at SUMA JKT Mwenge (Matrekta) on the fateful night enlightened this court that the 1st accused was the actual driver who left the premises with the vehicle. Lastly, Inspector Shabani Twahili (PW10), lead investigator of this case, enlightened this court that his investigation revealed that the accused persons before this court were on duty on a fateful night. The pick-up vehicle identified by the key witness was the only vehicle owned by the SUMA JKT which was used in cleaning work. The other vehicle is a heavy- duty vehicle. Further, PW10 enlightened this court that the record entails that the accused persons were the very staff on duty that fateful night along the BRT Bus stations from 21: 00 hrs. That the 1st accused admitted to having been at Fire BRT Bus stand around 11: 00 hrs. Hence, his finding coupled with other evidence collected from independent witnesses, led PW10 to conclude that the accused persons herein were the very persons who committed the alleged crime. 7 Thus, based on the above factual matrix, both accused herein were singled out as prime suspects of the alleged assault and consequential death of the victim. Hence, the charge herein was preferred against both accused persons. As I stated earlier, the accused persons vehemently protested their innocence and in defence, they categorically denied every accusatory fact. The prosecution in this case shouldered a burden of proof in that it was the accused persons herein, not any other, who executed the alleged criminal enterprise which culminated in the premature death of the victim. The standard of proof expected from the prosecution is proof beyond sane doubt, in terms of the provision of section 3(2) (a) of the Evidence Act [Cap 6 R. E. 2022]. As rightly asserted by Mr Nixon, the counsel for the 1st accused, the accused persons herein may only be convicted on the strength of the prosecution case not on the weakness of the defence. I would add that the accused persons are not obliged to prove their innocence. It suffices that they raise sane doubt on the prosecution case which may accrue to their benefit. The prosecution in this case was obliged to prove the following matters: 1. That the victim died an unnatural death. 8 2. That it was the accused persons herein who killed the victim. 3. That, at the time of the killing, the accused persons had malice aforethought. The 1st element of proof need not detain me. Both PW3 and PW6 who attended the victim at the earliest opportunity enlightened this court that they found the victim with debilitating injuries having been lynched by the anonymous person(s). Both claimed that the victim bled from the mouth and observed missing teeth. Likewise, the deceased complained of a broken right upper limb/ femur bone. It was deponed by PW2 that he conducted both external and internal examinations on the deceased body. He found the deceased body with wounds on several parts of his body. He observed bruises on his right thigh and a fracture of the femur bone; and his head and body had contusions. The internal examination revealed brain oedema/subdural haemorrhage and 200 mls collection of blood within the peritoneal cavity caused by the contusion and laceration of the left lobe of the liver caused by trauma or injury/external force. The liver was torn by external blunt force. The cause of death, as found by PW2, is multiple trauma/injury. The PF3 (exhibit P1) speaks it all. As I said earlier, PW3 and the deceased brother are recorded as the relatives of the victim who identified his body and were given the body for burial. 9 I am alive that the defence counsel herein in their final submissions contended that the medical report (exhibit P1) and the testimonies of PW1, PW3, and PW4 contradicted each other in respect of the date upon which the victim met his death which leaves doubts as to when exactly the victim died, if he actually died. Mr. Nickson opined that the testimonies of the victim in this case don’t support the charge herein which alleges that the victim was killed on 15/11/2020. Admittedly, the testimonies of the above key witnesses suggest that the victim died between 15/11/2020 and 18/11/2020. It is the law that the witnesses who give their testimonies of the matters they witnessed within a considerable period of time are not expected to be precise 100%. Discrepancies are excused unless they cannot be reconciled. For an inconsistency or contradiction to affect the credibility of the evidence in question, it must be material to the facts which it seeks to prove, otherwise, it would have no adverse effect or be detrimental and fatal to the case in which it was given. See the cases: Mohamed Said Matula vs. Republic [1995] TLR3 and Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17. Undisputedly, it is the law that where the fact(s) in the accusatory pleading of criminal proceedings do not correspond with the proof 10 produced at the trial, it amounts to what is namely, “variance” in law. It is nothing but non-correspondence of the pleading and the proof. However, in our jurisdiction, not all variances between the charge sheet and evidence adduced at the trial court are fatal to the case in question. To be fatal, variance must be material to the case concerned to the extent that the prosecution case flops. See the cases of Said Ally Ismail vs. Republic, Criminal Appeal No. 214 of 2008 (unreported); and Silas Sendaiyebuye Msagabago vs. The DPP (Criminal Appeal No. 184 of 2017) [2019] TZCA 402 in this respect. Notwithstanding anomalies in the testimonies of the above-mentioned key witnesses pertaining to the actual time and date of the death of the victim who was in a coma as appears in Police Form No. 99 and the timing of the autopsy exercise on the body, still I have no flicker doubt that the victim in this case died untimely due to the debilitating injuries and was duly identified by his relative before his burial. It is my considered view that the alleged inconsistencies didn’t cause the prosecution case to flop. Hence, based on the above observations, without much ado, I would find that it has been proved beyond sane doubt that the victim in this case suffered unnatural death. The 1st element of proof is hereby answered in the affirmative. 11 Now, I proceed to delve into the 2nd and pertinent question in this case: whether the accused persons herein caused the untimely death of the victim. Ab initio, I find it pertinent to mention that the evidence martialled by the prosecution which implicates the accused persons mainly emanates from PW1 and PW6, the sole eyewitnesses to the alleged assault, who deponed visual identification evidence. Likewise, the supporting evidence tending to implicate the accused persons, largely emanates from PW3, PW10, PW11 and PW12 herein. In the same vein, I find it pertinent to mention matters not in dispute in this case. One, it is not disputed that the 1st accused herein is a serviceman who was attached to SUMA JKT with its base at Mwenge (Matrekta) where he worked as a driver. Two, as deponed by PW12, it is an uncontroverted fact that on 15th November, 2020 the 1st accused was on duty in supervision of cleanliness along UDART/ BRT Bus Stations along Morogoro Road. Three, as deponed by PW11, on 15/11/2020 at about 21; 30 hrs, the 1st accused picked up the ignition key of the motor vehicle (pickup) to discharge his duties and passed the main gate with a motor vehicle identified with a white cabin and blue body and returned to the base at 01: 40 hrs. Four, it is not in dispute that the vehicle driven by the accused on the fateful day is scribed with writings SUMA JKT. Five, 12 irrespective of failure on the part of key witnesses to state the make of vehicle used by the 1st accused; as rightly ascertained by PW12, his superior, the vehicle assigned to the 1st accused on fateful day was a small car with an open body to carry luggage of which may be simply referred to as a van/pickup. During his defence, the 1st accused (DW1) deponed that on 15/11/2020 around 09:30 hrs, he drove the military vehicle from SUMA-JKT Mwenge (Matrekta) and headed to the Head Quarters of JWTZ, located at Mlalakuwa, Mwenge. He was with a civilian namely, Husna. They were supposed to carry the military servicemen to their security duty posts at Lugalo, and Makongo Brigade. He accomplished his assignment at 11: 00 hrs. Thereafter, they went to Kimara Bus Stand for an inspection of the BRT/ UDART bus stands. They arrived at Kimara Mwisho around 23: 50 hrs. They commenced inspection at 00: 00 hrs after transportation services stopped from Kimara Mwisho along the bus stands; then at Ubungo which has 9 bus stands and ended Morocco which has six bus stands. We make cleanliness to five zones, Kimara, Ubungo, Gerezani, Morocco and Kivukoni. But on the fateful day, DW1 worked on three zones only, Kimara Ubungo and Morocco; and accomplished their assignment at around 01: 20 hrs. He returned the vehicle to his office, parked the vehicle 13 around 01: 40 and retired home. DW1 told this court that when he executed his duties, he wore a military uniform. However, DW1’s assertion that on the fateful night he worked on three zones only namely, Kimara Ubungo and Morocco; not Fire BRT Bus Station, was not be substantiated. As rightly submitted by Ms Turusia, defence counsel, the law pertaining to visual identification is appositely stated in the case of Waziri Amani vs. Republic (1980) TLR 250 in that; visual identification evidence being weakest of its kind, the court should not act on such evidence unless all possibilities of mistaken identity are eliminated. See also the cases; Lusabanya Siyantemu vs. Republic [1980] TLR 275; Jafari Mohamed vs. Republic (Criminal Appeal 112 of 2006) [2013] TZCA 344 (15 March 2013; Said Chaly Scania vs. Republic (Criminal Appeal 69 of 2005) [2007] TZCA 180; Alhaji Ayubu @ Msumari & Others vs. Republic (Criminal Appeal 136 of 2009) [2010] TZCA 20. Based on the circumstances of this case, I have directed my mind to the case of Philemon Jumanne Agala @ J4 vs. The Republic, Criminal Appeal No. 187 OF 2015 [2016] TZCA 278, which, in my opinion, provides a guideline for acting on the evidence adduced by PW1 in this case. In the relevant case, the Apex Court expounded thus: 14 “It is now trite law that the courts should closely examine the circumstances in which the identification by each witness was made. The Court has already prescribed in sufficient detail the most salient factors to be considered. These may be summarized as follows: How long did the w itness have the accused under observation? At w hat distance? I n w hat light? W as the observation im peded in any w ay, as for exam ple by passing traffic or a press of people? Had the w itness ever seen the accused before? How often? if only occasionally, had he any special reason for remembering the observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance? ...” [Emphasis mine]. To find whether the evidence adduced by PW1 and PW6 meets the scales of justice, I would revisit their testimony in extenso. In substance, PW1 deponed thus: Being a motorcycle taxi rider, he used to commence his business from 22:00 hrs to 00:00 hrs. On 15/11/2020 he picked up the victim herein, his regular passenger, at Shibamu Hotel main plaza intending to ferry him to Kipata/Livingstone Street, Kariakoo. The victim was with his friend, PW3 herein, when he approached PW1 for transport service. They left PW3 thereat. Jangwani Road road was filled with water, though motorcycles and vehicles managed to pass through. PW1 rode 15 slowly to avoid water splash. Then the motor vehicle came from behind at high speed blowing horns. He escaped it. It passed them splashing water which soaked their clothes completely. The victim was offended. They tailed the said vehicle which stopped at Fire Rapid Bus Transit (BRT) station to carry dustbins from the respective station. The victim demanded PW1 to halt the motorcycle. PW1 was reluctant, apprehending a breach of peace. The victim insisted. Hence, PW1 stopped; and the victim alighted the motorcycle and approached the driver’s window of the particular vehicle. The victim expressed grievances to the respective driver which culminated in an argument. Then the victim strode towards the point at which PW1 parked his motorcycle. PW1 saw the driver who argued with the victim alighting the vehicle and pursuing the victim. He caught up with him, kicked him in the back and the victim fell down. Then, the assailant attacked the victim by unleashing massive kick blows towards the victim’s stomach and face. Soon thereafter, PW1 saw another man who was dispatching dustbins into the vehicle joining in the beating spree. PW1 witnesses the victim groaning with pain, trying to evade some blows. Then, being fed up with the cruelty of the assailants; PW1 charged against them in an attempt to intervene. He changed his mind when one of the assailants likewise, charged at him; and mounted his motorcycle and turned back to inform PW3 about the incident, but missed him. 16 In so many words, PW1 enlightened this court that the respective BRT bus station was fixed with an electric tube light which blazed the scene. Likewise, the motor vehicle they trailed and found thereat had its headlight shining towards the victim and his perpetrator. In the same vein, PW1 identified the vehicle used by the offenders as a pickup and or a Canter, with a blue body and white cabin; it had the mark- “SUMA JKT.” Likewise, PW1 told this court that he halted his motorbike 10 meters from the vehicle. That the perpetrator (driver of the vehicle) caught up with the victim just about five meters from PW1; hence he clearly watched the incident. Further, PW1 explained that the assailants unleashed blows on the victim for about 10 minutes. And having attempted to intervene and threatened, he tried to find help from the neighbourhood, but his effort proved futile. Further, PW1 deponed that having missed PW3 at Magomeni, he attempted to call the victim to learn what transpired at the crime scene after he left the scene; and the victim told PW1 he was taken at Msimbazi Police Station having beaten severely to the extent that his teeth were missing and sustained injuries all over his body. PW1 rushed to Msimbazi Police Station in an attempt to see the victim, but his effort was likewise futile as he found him already hospitalized. 17 Suffice it to point out that PW1 deponed that he marked well the perpetrators. He pointed to the 1st accused at the dock and his accomplice, the 2nd accused herein as actual assailants. Apart from the above, PW1 enlightened this court that on 04/12/2020, he was notified to report at Msimbazi Police Station to identify the suspects. He complied with the instruction. He was involved in the identification parade comprising 12 men lined up which was supervised by PW8 herein. He passed through the line and identified both accused people herein. The identification parade (exhibit P3) supports PW1’s version. The visual identification evidence adduced by PW1 is augmented by the testimony of PW6, a taxi driver whose parking station was approximately 30 meters from the Fire BRT Bus station. In substance, PW6 testified thus: On the fateful night of 15/11/2024, at about 22:30 hrs, he witnessed someone being beaten by the employees of SUMA JKT who alighted the van/canter which had a blue body and white cabin. Previously, PW 6 had seen the motorcycle halting in front of the vehicle. Then he saw the person who was a passenger on the motorcycle being beaten. He heard the motorcyclist raising an alarm asking for help. Hence, he drew closer to the scene after the incident had taken about 10 minutes; and witnessed the victim bleeding from his mouth and complaining of a broken leg. He 18 dragged the victim to the side of the BRT Bus running way and assisted him in calling his relative who came and took the victim to the hospital. In tandem with the above, PW6 told this court that the BRT bus stand is fixed with electric tube lights which blazed the area. Likewise, the road lights were blazing the scene. Hence, as I aforementioned, PW6 enlightened this court that he was able to observe what transpired at the crime scene. He identified the respective van/vehicle used by the assailants in that it had the writing “SUMA JKT” on its body. However, despite purporting to identify the assailants by their attire/uniforms, PW6 conceded that he could not describe them as he witnessed the incident at a distance. That he merely saw two male persons attacking the victims, whom he cannot describe. This is all from the testimonies of the above two eyewitnesses. The visual identification evidence adduced by PW1 and PW6 was met with a litany of fault findings from the defence counsel in their closing submissions. Generally, the defence counsel raised the following charges; One, the condition for visual identification of assailants and the vehicle involved at the crime scene was not favourable. Two, PW6 didn’t identify any assailant/suspect at the crime scene. Three, the evidence pertaining 19 to the identification of assailants by the attire they put on is contradictory. Four, the identification parade contravened the guideline provided forth under the Police General Order No. 232 (2). In totality, the counsel alleged that no prior description of assailants was given by PW1 before the purported identification parade. Five, the testimonies of PW1 and PW6 contradicted each other pertaining to the time of incident; number of persons who assaulted the victim and weapons used in assaulting the victim. Six, the distance at which PW1 stopped/halted his motorcycle from the vehicle allegedly driven by the 1st accused and, or crime scene is contradictory. Having scrutinized the evidence of visual identification adduced by PW1 and PW6 and allegations made by counsel herein in their closing submissions; I have the following observations: First, pertaining to the condition for visual identification of assailants and the vehicle involved at the crime scene, the evidence of PW1 and PW6 should take precedence over other witness upon whom the defence counsel hinged their criticisms. PW1 and PW6 had in so many words told this court that the electric tube lights fixed at Fire BRT Bus Station provided sufficient light to enable them to observe what transpired at the crime scene. Further, PW6 added that there were street lights which likewise, blazed the crime 20 scene. This fact was supported by PW3 who arrived at the scene of the crime after the alleged assault incident and assisted the victim to reach the Hospital. The same fact features in the statement made by PW1 which was admitted in evidence as exhibit D1. Moreso, PW1 and PW6 were at one in that the motorcycle halted several meters in front of the vehicle allegedly driven by the 1st accused; hence, the headlight of the vehicle likewise, shone towards the crime scene. Mr Nickson insinuated that his research revealed that the electric light fixed at the respective Bus Station is dim and incapable of providing sufficient light for identification. I refuse to purchase this argument. Apart from lacking veracity in the assertion made by the counsel pertaining to the purported research, the same never responded to the presence of street lights illuminating the area as well. The only ground upon which the defence counsel pegged their contentions pertaining to the purported unfavourable conditions for identification at the crime scene emanates from the testimony of H. 738 D/CPL Sumukaga. This witness opined that from the position he indicated the vehicle was stationed, the headlight could not have shone towards the assailant. However, he explained that the sketch map indicates the position of the vehicle after it had moved from the earlier position. Hence, at its later position, the headlight could not shine in the direction of the 21 victim. It must be noted that PW7 drew the sketch map based on the explanation given by PW6 who witnessed the incident. It suffices to point out that, based on what was deponed by PW1, PW3, and PW6, I have no flicker of doubt that the crime scene was illuminated with sufficient light. Secondly, concerning the argument that PW6 didn’t identify any of the assailants, it is uncontroverted fact that PW6 conceded that he could not mark well the assailant to describe them. The only thing he marked was the vehicle used by the assailants. Hence, the charge is valid. Thirdly, regarding the allegation that that the evidence given by PW1 and PW6 pertaining to the attire worn by the assailants is contradictory; I agree with this fact. What is obvious is that the respective witnesses contradicted themselves in responding to the cross-examination and purported to identify the attire worn by the respondent by recalling the statement they made four years ago. Taking into consideration the time- lapse, the witnesses were entitled to ask the leave of this court to refresh their memory, which they failed to do. Hence, the anomaly, in my opinion, is nothing but Nothing but “humanum est errare.” Thus, the correct version pertaining to the description of attire put on by the assailants should be found in the statement made by PW1 at the 22 earliest opportunity. In his statement, PW1 was recorded in that the assailants put on SUMA JKT uniform. Admittedly, this description is too general as SUMA JKT servicemen have several types of uniforms. Likewise, PW6 told this court that the assailants had put on the uniforms of SUMA JKT. Thus, I would agree with the defence counsel in that the eyewitnesses failed to describe the attire put on by the assailants. Fourthly, it is alleged that the identification parade contravened the guideline provided forth under the Police General Order No. 232 (2) in that no prior description of assailants was given by PW1 before the purported identification parade. This charge was raised by the defence in objecting to the admission of the parade register as evidence in this case. Perceiving that the objection was hinged on the credibility of the evidence, I admitted the register in evidence as exhibit P3 and reserved my opinion. The defence counsel contended that the description of the offender should have been recorded in the parade register to infer on what ground he identified the suspects. In substance, the provisions of order 232 (2) (s) of The Police General Orders require the circumstances upon which the identification parade is made to be recorded. In substance, the objection raised herein sought to discredit the credence of the parade register (exhibit p3) in that, 23 practically, the witness did not identify the suspect for wanting particulars upon which the suspect was identified. Admittedly, it is now settled principle that before one can identify a suspect in the identification parade, he must describe such a person prior to identifying him. See the case of Francis Majaliwa Deus v. Republic, Criminal Appeal No. 139 of 2005. (unreported) in which the case of R. vs. Mohamed bin Allui (1942) 9 EACA was cited in approval. The Apex Court emphasized the importance of the witness to give a description of physical appearance, clothes worn by the suspect and any other peculiar mark or identity. In the same vein, it was rightly stated in the case of Samson Chacha @ Mwita Pius vs Republic, Criminal Appeal No 76 of 2018, CA (unreported) that in situations where an identification parade is conducted without prior description of the suspect, the identification report is taken to be unworthy of credit. See also the case of Muhidini Mohamed Lila @ Emolo and 3 Others v. Republic, Criminal Appeal No. 443 of 2015, CA (unreported). However, with due respect, the parade register is not the only record on which we may asses whether a description was made by identifying witness to gorge his credibility. The first document to rely upon is the 24 witness statement made at the police station at the earliest opportunity. Likewise, the testimony of the police officer who supervised the parade and or any officer in the chain of investigation can provide a clue on whether there was any description of suspects made prior to the identification by a witness. Fortunately, as luck would have it, the statement made by PW1 was caused to be tendered by the defence as evidence (exhibit D1) in this case. In the particular statement, PW1 was recorded to have stated that the driver of the vehicle collecting refuse who attacked the victim was slim/thin, of average height, and white (light complexion) skin colour. Likewise, PW10 herein, the lead investigator enlightened this court that during the investigation of this case, he asked PW1 whether he could identify the alleged driver who quarrelled with the victim and assaulted him; and the same description version was made by PW1 to PW10. Hence, I am of the considered opinion that PW1 had made the description of the 1st accused before he identified him. Hence, the identification register was validly tendered and admitted in evidence. Fifthly, relating to the charge that the testimonies of PW1 and PW6 contradicted each other pertaining to the time of the incident; number of persons who assaulted the victim and weapons used in assaulting the 25 victim as well as contradictory statements of PW1 regarding the positions at which the accused persons stood during the parade; I am of the opinion that this charge is warranted especially in respect of the testimony of PW1. His statement mentioned above reveals that there was one man who was carrying dustbins into the pickup and another man receiving the same into the van. And PW1 was recorded stating that when the 1st accused person allegedly assaulted the victim at the first instance those staff who were moving dustbins joined in the beating spree along with their tools of labour such as brooms and dust pans." Hence, I apprehend that there might have been three assailants at the crime scene, though only two suspects were implicated. On his part, PW6 told this court that he merely saw two people at a distance assaulting the victim. Regarding the difference in time; PW1 deponed on matters that transpired around 22: 00 hrs; however, his statement refers to the incident which happened around 23: 00 hrs. With due respect, I find this charge misconceived. I don’t apprehend that when PW1 was doing his business, precisely marked the time. He did not foresee the tragedy. Hence, the time mentioned, in my opinion, was approximated. The above fact, coupled with time lapsed, lapses are inevitable. It is my settled view that the lapses pertaining to the time of the commission of offence between 26 the statement made at the police station and what was deponed in court are not fatal in the circumstances of this case. The difference is only one hour which is an excusable anomaly. And pertaining to the anomalies in stating the positions at which the accused persons stood in line during the identification parade, as I aforestated, the anomaly is apparent in the response made by PW1 during the cross-examinations. The witness purported to recollect what transpired four years ago and strayed into an error. It was needless to do so. As I opined; the law allows the witness to refresh his memory to the relevant document before he responds to the matters requiring precision. Thus, the anomaly was instigated by the defence counsel who put such questions to him. And the alleged anomaly cannot in any way lessen the credibility of the parade register. Lastly, it was alleged that there is a discrepancy pertaining to the distance at which PW1 observed the incident on that fateful night. That in this court he mentioned 5-10 meters whereas in his statement it is recorded that he observed the incident at a distance of 5 kilometres. This charge need not detain me. It is obvious that PW1 could not witness an incident at 5 kilometres. Such distance is even far beyond his trip from Magomeni to Fire BRT Station. Hence, I would find the word 5 kilometres 27 a slip of the pen. The intended word should have been 5 metres. That said, I would dismiss the charge advanced by the defence counsel herein. Reverting to the credibility of visual identification evidence deponed by PW1 (and PW2); it is settled law that every witness is entitled to credence and his evidence must be believed; unless there are cogent reasons constraining the court not to believe the witness. And the cogent reasons for not believing a witness are such that either the evidence deponed is tainted with improbability and, or the evidence in question has been materially contradicted by another witness. See the cases: Goodluck Kyando vs. Republic [2006] TLR 363; and Aloyce Maridadi vs. Republic, Criminal Appeal No. 208 of 2016, CA, (unreported) in this respect. Honestly speaking, I find no cogent ground to deny PW1, PW3 and PW6 credibility and, or not to believe the same. I find the same the witness of truth. Having assessed the evidence of visual identification deponed by PW1 and PW6; I observe that: PW1 was at the crime scene during the time of the commission of the offence. I have been satisfied that the crime scene was well illuminated by the electric lights from the tube lights fixed at the BRT Bus Stand and streel light poles thereof. The incident took several minutes in front of PW1 who had ample time in observing the 1st accused who 28 instigated the beating of the victim. PW1 herein described the 1st accused at the police station when he made his statement and also identified him during the identification parade, notwithstanding minor lapses. Hence, I would conclude that the 1st accused person was identified by PW1 as the actual assailant who led the assault of the victim which culminated in his premature gruesome death. I would add that the testimonies adduced by PW11 and PW12 augment the evidence of visual identification deponed by PW1 and PW6. As stated earlier, PW12 deponed in this court that on 15th November, 2020 the 1st accused was on duty in supervision of cleanliness along UDART/ BRT Bus Stations along Morogoro Road. Likewise, as deponed by PW11, on the fateful night at about 21; 30 hrs, the accused picked up the ignition key of the motor vehicle (pickup) to discharge his duties. That the 1st accused left the main gate with a motor vehicle with a white cabin and blue body and returned to the base at 01: 40 hrs. Lastly, it is not in dispute that the vehicle driven by the accused on the fateful day is scribed with the writing “SUMA JKT.” PW12 ascertained that the vehicle assigned to the 1st accused on the fateful day was a small car with an open body to carry luggage. In fact, PW1 and PW6 used the words pick-up vehicle and, or canter interchangeably. The clarification given by PW12 leads this court 29 to apprehend that the vehicle in question is a van, a medium vehicle for carrying luggage. The anomaly pertaining to its make, in my opinion, is not fatal. Both PW1 and PW6 had in so many words described the vehicle used by the 1st accused as a pickup/van with blue body and white cabin. The 1st accused has not informed this court whether the vehicle of like nature was used by any other colleague on the fateful day. Needless to point out that the 1st accused avoided mentioning the type and or make of the vehicle he drove on the fateful night. During his defence, the 1st accused (DW1) admitted that on the fateful night, he left the military base around 09:30 hrs, to execute his assigned work and returned/parked the vehicle around 01: 40. However, his assertion that he worked on three zones only namely, Kimara Ubungo and Morocco; not Fire BRT Bus Station doesn’t shake the prosecution case to the contrary. I reiterate that the 1st accused has not informed this court whether the vehicle of like nature was used by any other colleague on the fateful day, and or who else was on duty at the respective bus station. PW12, his superior deponed in this court that it is only the 1st accused who was on duty from 15-18th November, 2010. Hence, I discredit his defence. 30 My finding above notwithstanding, I am alive that the identification of the 2nd accused herein by PW1 was not preceded by any convincing description in the statement he made at the police station at the earliest opportunity. It is obvious that PW10, the lead investigator in this case, could not state anything cogent pertaining to the description made by PW1 prior to the identification of the 2nd accused during the identification parade. I reiterated that it is settled law of this land that in situations where an identification parade is conducted without prior description of the suspect, the identification report is taken to be unworthy of credit [Samson Chacha @ Mwita Pius vs Republic, (supra) and Muhidini Mohamed Lila @ Emolo and 3 Others v. Republic (supra)]. Given the foregoing, I find that the 1st accused herein caused the death of the victim herein without lawful excuse. Lastly, I would proceed to discuss the last question in this case; whether the accused intended to cause the death of the victim in this case. I will not tarry on this issue. The provision of section 200 of the Penal Code guides this court in determining the issue in question. The relevant provision aptly provides: “Section 200: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- 31 (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; (e) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence. Likewise, the Court is instructed to assess the circumstances of each case and be able to gather and infer the intention that the accused had when he committed the incident [Ibrahim Abubakary & others vs. Republic, (Criminal Appeal No. 147 of 2022) [2024] TZCA 752]. Moreso, some of the matters for consideration whether the offender intended to kill, or cause grievous harm, among others; the number of force applied in the assault; the part or parts of the body the blows were directed at or inflicted on: the number of blows involved; and the kind of injuries inflicted [Enock Kipela vs. Republic (Criminal Appeal No. 150 of 1994) [1999] TZCA 9]. 32 In view of the law and guiding principles revisited above, I revert to the testimonies of PW1, PW2, PW3 and PW6 in determining whether the 1st accused had malice aforethought when he caused the death of the victim herein. In substance PW1 enlightened this court that the 1st accused having attacked the victim from behind and fell him down, unleashed blows on his face/head and stomach to the extent that the victim could not further contend him but groaned in pain asking for help. PW3 and PW6 enlightened this court that they observed the victim bleeding from the mouth and with missing teeth. Likewise, both witnesses enlightened this court that the victim’s upper limb was broken. In the same vein, PW2 (the medical practitioner) confirmed that the deceased was found with the fracture of the femur bone; and his head and body had contusions. That the internal examination revealed brain oedema/subdural haemorrhage and 200 ml collection of blood within the peritoneal cavity caused by the contusion and laceration of the left lobe of the liver caused by trauma or injury/external force. The liver was torn by external blunt force. As aforesaid, the cause of death is multiple trauma. In my opinion, when the 1st accused unleashed such kind of blows to the deceased person, was aware that he could cause death and, or grievous harm to the victim. 33 Needless to say, the 1st accused had without justifiable cause attacked the victim with countless blows which sustained him fatal injuries. The attack was uncalled for. He had previously splashed water on the victim who was carried on the motorcycle by his motor vehicle. The victim merely pursued the 1st accused to express his grievance; however, the 1st accused retaliation was devastating and unreasonable. Mr. Ludovick, Counsel for the 1st accused opined in his closing submission that the prosecution has not established mens rea for the alleged murder. Hence, he proposed that the offence which should have been levelled against the 1st accused should have been manslaughter. I disagree with this proposition for reasons aforestated. I would reiterate that, in the circumstances of this case, it is obvious that when the 1st accused unleashed the alleged blows on the vital/delicate parts of the victim’s body, at least, he intended to cause grievous harm to the same. Indeed, the victim suffered a gruesome death. In final analysis, I find that the prosecution has succeeded in proving the charge against the 1st accused beyond sane doubt. Hence, I am constrained to find the 1st accused person guilty of the offence of murder 34 c/s 196 and 197 of the Penal Code. Accordingly, the 1st accused person is hereby convicted forthwith. Otherwise, I find that the prosecution has failed to prove the charge against the 2nd accused. Hence, I hereby acquit the same forthwith. DATED at DAR ES SALAAM this 30th day of September, 2024. O.F. BWEGOGE JUDGE 35