REPUBLIC VS YASSIN IDD IJABE AND ANOTHER

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE NO. 102 OF 2023 THE REPUBLIC VERSUS 1. YASIN IDD IJABE KUSHI 2. JOSEPH ZAKARIA SURUMBU ------------------- JUDGMENT Date of the last order: 22/10/ 2024 Date of the Judgment: 08/11/ 2024 LONGOPA, J.: The accused persons, one Yassin Idd Ijabe Kushi and Joseph Zakaria Surumbu stand charged of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2022. It is alleged that on 1st day of February 2023 at Bicha Street in Kondoa District Dodoma Region both accused persons did murder one Devotha D/O Lemi. Both accused persons denied any participation in the commission of the offence necessitating the 1|Page prosecution to call a total of six (6) witnesses and defence had two (2) witnesses the accused persons themselves. In the prosecution of the case the Republic was represented by Miango Kezilahabi, Mwilongo Tenge, and Francis Mwakifuna, State Attorneys for the Republic while the 1st accused was represented by Erick Christopher, learned advocate and the 2nd accused enjoyed the legal services of Mr. Fred Kalonga, learned advocate. Summary of the evidence on record is as follows: The first prosecution witness (PW 1) was WP 13553 P/C Nkwaya, a police officer who testified that on 02/02/2023 while on duty received Devotha Lemi who informed PW 1 that she was raped. The police case filed was opened, recorded the statement and gave the victim PF 3 for attending medical treatment at the District Hospital of Kondoa. According to PW 1, a statement Devotha Lemi who was in a very bad shape and complained about severe abdominal pains. The victim informed PW 1 that on 01/02/2023 at 22:00 hours at Bicha area the victim called a bodaboda rider one Yassin to take her home. Yassin used one Paulo’s 2|Page motorcycle and the victim gave TZS 5,000/= whereby TZS 2000/= was deducted and remained with TZS 3000/=. The victim bordered the motorcycle and two young men joined namely Yusuph and Lesa. The assailant drove to Bicha Bridge where they took the victim to the forest where they raped her (gang rape). It was PW 1 that the victim further stated that upon completion of rape incident, the assailants kicked the victim on the abdomen stating that they wanted to finish her. PW 1 stated that Devotha requested Yassin not to kill her as they wanted to leave her at the forest but she asked them to take her home. However, they took her to a place near the Mosque where she slept to the following morning. PW 1 was informed on 06/02/ 2023 by Officer in Charge -Criminal Investigation Department (CID) that the victim had passed on. The recorded Statement of Devotha Lemi dated 02/02/2023 was admitted as Exhibit P 1. It was PW 1 evidence that the victim informed me that Yassin S/O Kushi was her bodaboda and named other persons who raped and kicked her at abdomen to be Yassin S/O Kushi and Joseph Churungu. 3|Page In cross-examination, PW 1 stated that the victim made a declaration at 17:55 on 02/02/2023. It is true that certification is made after completion of recording of the statement. The declaration does not reveal that the statement was read or otherwise. PW 1 noted that it is true it is the requirement of the law for a statement to be read and she did read it though the statement does not indicate. According to PW 1, the victim did not state time when Yassin started to be her driver, motorcycle registration number or model not stated, colour of the motorcycle not disclosed too. It was PW 1 that PF 3 was issued for the offence of rape and that issue of being kicked with legs was not among the issues to be examined. The direction on instruction was related to rape incident only. PW 1 stated that in the statement there is nowhere the victim’s statement indicated the motorcycle belonged to Paulo. It was said by PW 1 that the victim did not state how she knew the other young men who were in the same motorcycle and it was a good Samaritan who took the victim to the guest house where she worked. The Samaritans took the victim to safe custody before taking her to the guest 4|Page house. The scene of crime is not stated and nor the statement reveal duration of the rape. The second witness (PW 2) was Lidya Godlove Kawa a Clinical Officer who testified that on 02/02/2023, while at the District Hospital attended one Devotha Lemi who brought PF 3 stating to have been raped. The main complaint was rape and severe pains. The procedure is that we only fill the PF 3 based on the stated complaint in the PF 3. According PW 2, she examined Devotha Lemi physically and the victim was looking fine. The victim’s vagina had no bruises nor there were no blood stains. However, the victim was feeling pains when PW 2 inserted the fingers in the vagina indicating penetration by blunt objects at the vagina. It was PW 2 gave the victim some antibiotics and PW 2 proceeded to fill in the PF 3. During cross examination, PW 2 stated that she examined the victim’s physically abdomen examination by looking and touching where it indicated that it was normal abdomen but on palpation the victim was feeling pains. It is PW 2 testimony that she has no information if the 5|Page patient returned to hospital. It was stated that PW 2 did not indicate if the victim was penetrated by blunt objects and admitted to have not tendered any documentary evidence before the court including PF3. PW 2 reiterated that he complained of the rape and assaulted but the issue of assault was not stated about the assault but PF 3 had directed examination of rape. PW 2 emphasized that abdomen of the deceased was normal. Further, the prosecution called a third witness (PW 3) Said Abdallah Katanga, Medical Officer stated that on 07/02/2023 while at the duty station was assign to perform Postmortem report at the Mortuary and the body was identified by persons including Timothy. At the mortuary the body was placed on the metal and identified by relative to be Devotha Lemi, adult woman aged around 43 years. The body was examined the body physically as the first stage. The second stage may involve the opening of the body. The deceased body was normal except there was extended abdomen with blackish colour at the mid of the abdomen. 6|Page I informed the relatives that as the abdomen was extended it was wise to open up the body. They agreed to open the body. I found the whole abdomen full of feces inside the abdomen and the small intestine had raptured. There appears that the abdomen was hit by hard blunt object as the situation was not normal. The rapture might have been caused by hitting the body/abdomen. The cause of death was bacterial infections as a result of rapture of small intestine thus extended abdomen. This results into shock that the death resulted. Thus, filled the Report of Postmortem Examination dated 07/02/2023 which admitted as Exhibit P 2. According to PW 3, there was rapture of small intestine which might have been caused by hitting by heavy blunt object. It was PW3’s stated that abdominal vassal organ damaged. In cross examination, PW 3 stated that rapture of small intestine may be caused by different things but the instant case it was the hitting on the abdomen. It was further stated that accident might cause rapture of the intestine. It is through compressing the abdomen that PW 3 concluded to 7|Page have caused the death as there was blackish mark on the abdomen. The mark was not that of natural being but this was caused by object hitting or pressing hard. It was PW 3 testimony that he is the one who filed the contents of Exhibit P 2. The coroner is the Magistrate of District Court of Kondoa and that he was handed over that form by Inspector Waziri. PW 3 admitted that there was no form appointing him to do the postmortem examination. It was Inspector Waziri from the police who stated that death has issues thus postmortem examination should be conducted. Further, PW 4: Timothy John Muffa stated that on 05/02/2023 got information via phone from Maria Mathias, mother of Devotha Lemi who informed me about death of Devotha Lemi. According to PW 4, on 06/02/2023 travelled to Kondoa where he was informed that the deceased was raped and hit or kicked on abdomen at Bicha area in Kondoa. He restated that the incident happened on 01/02/2023 and it is good Samaritans who took victim to police station where she obtained PF 3 for treatment. She continued with treatment and she was at home at Maria 8|Page Mathias’ home. I got the information that three young men who took her on the motorcycle but they ended up raping her. The death happened on 05/02/2024 thus on 07/02/2023 is when postmortem examination report was conducted where PW 4 was one of the persons that identified the deceased body. It was found the abdomen was distended. The medical doctor did open the body especially the abdomen and found that there were feces surrounding the intestine. The small intestine had raptured. Upon completion of the Postmortem examination the body was collected for burial ceremony. On cross examination, PW 4 stated that all the information on death he was informed by Maria Mathias and that it is the true that Maria can state how she took care of the deceased. Maria Mathias is available in Kondoa. PW 4 further stated that the body of abdomen deceased was extended and bright with no black marks on the abdomen of the victim. Another witness for prosecution (PW 5) Paulo Peter Chalo @ Simba stood up to testify. He stated that he was a resident of Bicha Street in Kondoa since 2018 and a motorcycle driver commonly called Bodaboda at 9|Page Bicha Roundabout. PW 5 stated that he knew Devotha Lemi as a person who was working as guest attendant at guest house in Bicha area. PW 5 stated that on 01/02/2023 at around 22:00 hours one Yassin requested to use PW 5’s bodaboda make CRRXL 125 Boxer whereas Yassin took Devotha Lemi who was drunk at the door of Mr. Omari’s bar around the area where the motorcycle was parked. It is around 10 meters from the parking area to the Omari’s bar. According to PW 5, he was called to take fare so he recognized that the passenger was one Devotha Lemi at the bar where there was sufficient light of electricity. PW 5 stated that it is Yassin who took TZS 5000/= from Devotha’s handbag, gave It to PW 5 who deducted TZS 2000/= and returned TZS 3000/=. At a distance of 10 meters away from the bar two young men boarded the same motorcycle. They were Joseph Zakaria @ Chigongo and Lesa. PW 5 alleged to have seen the youngmen boarding the motorcycle rode by Yassin, thus the passengers were Devotha Lemi, Joseph and Lesa. 10 | P a g e It was PW 5 evidence that the assailant rode the motorcycle in the direction of Dodoma Road but did not know exactly place they were heading to, Mr. Yassin returned the motorcycle after two hours, and it was about five days later when learnt that Devotha Lemi was dead. It was PW 5 that a lot of people were arrested including himself and he met Yassin at police station where he was kept in custody. He reiterated that he did not see Devotha after that night of 01/02/2023. In cross examination, PW 5 stated that he did not state the colour, registration number, names of the person who entered into agreement to ride that motorcycle, duration of the agreement, when was the commencement of the agreement, as well not stated the whereabout of such motorcycle. It was PW 5 evidence he had not informed the court he does not remember the motorcycle registration number and at the Bicha area there was no electric bulbs/ tube lights at the time of incident. There were arrested about six persons including Sirro, Issa Kwariko, Mwenda, Yusuph Swalehe, Surumbu and Yassin. 11 | P a g e It was PW 5 further testimony that he had no licence to drive motorcycle or ride motorcycle. He was given agreement to ride the motorcycle without having any licence whatsoever. PW 5 stated that he does not know any of the leaders at Bicha station. He stated that he had never paid any dues to the association of motorcycle riders at that place. It was PW 5 evidence that he has not stated time when he started to ride the motorcycle. It was PW 5 that he did not demand for more money though Yassin used the motorcycle for more than two hours. Regarding source of light and intensity, PW 5 stated that the place had no lights and he did not inform the court if there were moon light was there.PW 5 insisted that he only used his eyes to see them without assistance of the light as the place was not very far. PW 5 stated that he has never called to police station to do identification parade of the accused person and he remembers that he was arrested while roaming around that Bodaboda station on 09/02/2023 at 20:00hours. And that he had not travel outside Kondoa between 02/02/2023 to 09/02/2023. 12 | P a g e PW 5 stated that his wrongful for arrest and stay for 14 days at the police station at Kondoa. My offence was to lend the bodaboda to Yassin only. The first person to be released at the police station were the four persons except the accused person. PW 5 stated that he does not remember the registration number of the motorcycle belonging to Yassin. The absence of road light on that time is the correct answer. There was no light though distance was not far. The last prosecution witness was (PW 6) G. 9529 D/CPL Joseph, a police officer who stated the he remembers that on 06/02/2023, he was assigned by one Mwakasungula OC – CID to handle the police file with number Kon/IR/185/2023 with offence of rape for investigation. He read the contents of the statement of the complainant to have been raped and kicked at the abdominal area where noted names of three persons including Yassin Idd Ijabe, Joseph Zakaria @ Surumbu and one Lesa thus commenced arresting processes. PW 6 traced the victim Devotha Lemi through phone but the same was not found thus went to Ubembeni Street in Kondoa township where she was informed that the victim passed on 05/02/2023 her body was at the mortuary of Kondoa District Hospital. 13 | P a g e It was PW 6 that on 07/02/2023, he went together with Inspector Waziri and corporal Deo to Kondoa District Hospital where we met Dr. Katanga who was assigned to do postmortem examination. The persons who witnessed the postmortem were Inspector Waziri, Corporal Deo and Timothy John a relative of the deceased. The postmortem examination was conducted and the medical doctor found the cause of death was rape, abdominal visceral organ damage. i.e rapture of small intestine which caused feces to remain in the body. The body was handed over to the relatives of the victim for burial ceremony. We left to police station to change the offence from rape to murder. The case file remained the same. It was PW 6 evidence that investigation was conducted and arresting of the persons named. On 07/02/2023 one Joseph Zakaria Churungu was arrested at Dodoma stand at Bicha area in Kondoa. PW 6 stated Joseph Zakaria Churungu was interrogated for rape of Devotha Lemi and kicking her at abdominal area but denied to have ever participated in commission of the offence either alone or in company of anyone else. Investigation continued until 09/02/2023 when Yassin Idd Ijabe was arrested in the morning and took him to police station at Kondoa District. He was 14 | P a g e interrogated for rape of and kicking of Devotha Lemi at abdominal area. Mr. Yassin stated to have been requested by the deceased on 01/02/2023 to look for a motorcycle to take her home. It was Mr. Yassin’s assertion to have approached one Paul Peter @ Simba to take the deceased home. Mr. Yassin who ordered to take TZS 5000/= whereas the money was given to Paulo Peter @ Simba who took TZS 2000/= and returned change of TZS. 3000/= at Devotha Lemi handbag. Yassin stated to have taken Devotha Lemi to her house at Ubembeni street and returned the motorcycle. He denied to have raped the victim nor to have killed the deceased at her abdominal area. PW 6 stated that the police also arrested and interrogated Paulo Peter @ Simba on lending the motorcycle whereas he stated that at around 22:00hours at the Omari’s bar one Yassin asked for the motorcycle to take someone to Ubembeni street. He stated that Yassin took TZS 5000/= and gave to Paulo Peter before the duo left. It was stated that after 10 steps two gentlemen boarded the motorcycle after it stopped including Joseph Zakaria and Lesa, Yassin rode the motorcycle on the Dodoma Road 15 | P a g e direction instead of Ubembeni direction that is within Kondoa township. The motorcycle was returned after two hours. According to PW 6, that statement by Paulo found that statement of one Paulo Peter would fit to be a witness rather than an accused thus released him. It was PW 6 evidence that the persons were arraigned to court for murder of Devotha Lemi after we got clearance from ahead from NPS. It was PW 6 testimony that according to his investigation revealed that the duo had participated in the commission of the offence because Devotha Lemi identified Yassin Idd Ijabe and Joseph Zakaria Surumbu. The statement of Paulo Peter @ Simba cemented as he stated that accused were the last persons to be seen with the deceased. They had ill motive/malice as they took her in the Dodoma direction to execute the plan. The postmortem report provides for the cause of death of Devotha Lemi to have been the intestine rapture resulting to overflow of feces impairing the internal organs. It was PW 6 testimony that two accused 16 | P a g e persons were clearly identified by the deceased as she named them when reported the matter to police station. In cross examination, it was PW 6 statement that here were four days passed since the deceased/victim reported the incident. PW 6 only knew of the death of Devotha Lemi on 06/02/2023 that she died on 05/02/2023. There was a case file for rape only. At the beginning, there on attack as the victim reported the rape only. The attack/kicking the abdominal area was not considered as one of the issues. It was PW 6 testimony that he saw the PF 3 that was given to Devotha Lemi. It related to the rape incident alone. There was nothing apart from the statement of the complainant that there was attack/harm to the body of the victim. PW 6 was of the view that it is correct that PF 3 is the document that leads the medical expert to investigated and medically examine the complained aspect and the offence that was recorded in PF 3 was only rape which was serious offence. 17 | P a g e It was PW 6 that he had no evidence whatsoever that one Devotha Lemi was treated for attack on the abdominal complaint. The cause of death was the kicking of the abdominal area that led to rapture of small intestine. The rape was not cause of death. PW 6 further stated that he had not stated that we went to the court for the doctor to be appointed to conduct postmortem examination report. He admitted that on record there is no appointment form No. B as the police went straight to Dr. Katanga. He stated that they went to Magistrate to get the permit to conduct postmortem examination on the deceased body. It was oral permit. It was Inspector Waziri who received the oral permit from the Magistrate. The coroner is Hon. Lukindo and there is no description whatsoever on the coroner. The form C was never returned to the coroner since then. PW 6 stated that he is the one who arrested and recorded statement of Paulo Peter @ Simba. However, PW 6 never asked a motorcycle registration, its whereabouts and the make of the same. Mr. Paulo Peter was arrested without a motorcycle. 18 | P a g e The defence called total of two witnesses. DW 1: Yassin Idd Ijabe stated that he is in court facing an of offence of murder of one Devotha Lemi. He denied any involvement in the commission of the offence and stated that it was arrested on 09/02 /2023 at his home at Bicha area in Kondoa where he stays with his parents. DW 1 stated to have been interrogated about the murder case of Devotha Lemi but he denied to have any involvement on the same as DW never knew anything about that incident. DW 1 denied to have been a driver of motorcycle as he never possessed any driving licence and that he does not know one Devotha Lemi nor Mr. Paulo Peter @ Simba. DW 1 denied to know either Joseph Zakaria and Lesa. He only met Zakaria in court charged together when arraigned on 21/02/2023. DW 1 prayed that this court be pleased set me free he has not committed any offence thus he was innocent. In cross examination, DW 1 stated that he never objected to have taken the motorcycle from Paulo nor that he does know to ride. He stated he only identified at that dock. It was DW 1 evidence that there was no evidence at all that he knows to ride motorcycle. 19 | P a g e DW 1 denied to know Paulo Peter and that he does not know one Omari’s bar as he does not drink. DW 2: Joseph Zakaria Surumbu stated that he was arrested on 07/02/2023 at Bicha area in Kondoa, sent to police station at Kondoa. He denied to know any Devotha Lemi and that he denied to have been at Bicha area on 01/02/2023 as he stated to have been at Msaada A village in Chemba District in Dodoma where he went on 22/01/2023 and returned to Kondoa on 4/02/2023. DW 2 tendered a letter dated 30/10/2023 from the Chairman Msaada A Hamlet in Msaada Village in Chemba District is hereby admitted as Exhibit D1. DW 2 stated that the letter was brought to during the plea taking on 01/11/2023 at the High Court Dodoma Sub-registry and the contents of the letter reflects on his whereabouts on the date of the incident allegedly to have happened at Bicha Kondoa on 01/02/2024. DW 2 denied to have known Paulo Peter and evidence of such person was lies as he failed to state the source of light that made him recognize the accused as there were no road lights at Bicha area in February 2023. 20 | P a g e When cross examined, he said about moonlight then he said that he only saw without the assistance of any lights. The evidence of DW 5 was clearly contradictory. In cross -examination, DW 2 stated that the letter was not given to him but t was written while he was in the custody. The Hamlet Chairman is Abdulkarim Mambi. On 22/01/2023 there was no letter that he was there at Msaada Village. It was given later on as his relative knew that on those dates DW 2 was not at Kondoa as alleged. According to DW 2, it was his mother who went to the Chairman to request for the letter. The letter proves that DW 2 was living at one Mary Damas Dinya. DW 2 stated that evidence of PW 5 one Paulo Peter @ Simba stated that he saw DW 2 boarding the motorcycle was objected by his lawyer. DW 2 stated that he does not know the guest house where Devotha was working nor knew Devotha Lemi. He emphasized that the evidence that he was not at Bicha on 01/02/2023 is the letter as on 04/02/2023 is when he was returning back to Bicha area. The letter states that from 22/01/2023 to 04/02/2023 DW 2 was at Msaada A Hamlet thus he was not at Kondoa on that date. 21 | P a g e Having heard both parties, this Court dispassionately considered the evidence of both parties to find out whether there is proof of the commission of the offence of Murder for which the accused stands charged. I must restate at this juncture that proof of the offence of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2022, the prosecution must prove that all the ingredients of the offence are met. These elements are that there must be unlawful death of the victim, such death must be associated with unlawful act or omission of the accused and that there must exist malice aforethought. These ingredients were articulated in the case of Ibrahim Abubakar & Others vs Republic (Criminal Appeal No. 147 of 2022) [2024] TZCA 752 (16 August 2024) (TANZLII), at page 23, the Court insisted that: With respect to criminal cases, such burden rests on the shoulders of the prosecution and the standard of proof is beyond reasonable doubt. This entails the establishment of 22 | P a g e existence of all ingredients constituting the offence charged. In the case of murder which is the subject of the instant appeal, such proof would entail leading in evidence to prove that by the appellants' unlawful act or omission the deceased lost his life. Such acts or omission must have been clothed with malice aforethought. The evidence on record from PW 1 reveals that on 02/02/2023, the victim reported to have been raped by the accused person and kicked by legs at her abdominal parts of the body. It was PW 1 evidence that a PF 3 was given to the victim to attend medical treatment for the rape offence. PW 2 is the one who attended the victim and stated that he abdomen was in normal shape and she treated the victim only with regarding to rape aspect as the victim was experiencing pains when the fingers were penetrating the vagina. Exhibit P 1 is the statement of the deceased that states that she was taken in a motorcycle rode by Yassin Kushi and two young men by the 23 | P a g e names of Joseph Churungu and Lesa joined and raped the victim then assaulted her by leg kicks on the abdomen. The evidence of PW 3 is lucid on the cause of death. It reveals that the victim succumbed to death was abdominal visceral organ damage which presented by peritonitis. This was supported by Exhibit P 2 which was Postmortem Examination Report. This evidence is also reiterated by PW 4 and PW 6 who stated to have been there at Kondoa District Hospital when the Postmortem report was conducted. From the available evidence there is no dispute that Devotha D/O Lemi is dead and that her death was unnatural as evidence of PW 3 reiterated that the damaged abdominal visceral organs was the cause leading to rapture of the small intestine of the victim thus feces remaining in the body caused the infection that led to death. This was supported by PW 4 who identified the body of the deceased prior to conducting of Postmortem examination and witnessed that deceased’s abdomen was distended. Thus, the death of the victim was 24 | P a g e unlawful death caused by action of someone who might have unlawful attacked the deceased. Having established the cause of death that might have resulted from killing of the victim, what remain unanswered is whether the death can be linked to the accused persons. I should hasten to state that it would appear that evidence on record does not fully support active or passive involvement of the accused persons in murdering the victim. There are two main sets of evidence that tried to link the accused with the death of the victim. These are Exhibit P1 which the victim statement recorded on 2nd day of February 2023 at Kondoa Police Station and the evidence of PW 5 allegedly to have seen the accused persons leaving with the deceased thus the last persons to be seen with the deceased. I have closely examined both sets of evidence to establish a link between the offence and the accused person. They are both based on visual identification. The principle on visual identification calls for carefully consideration by the court to ascertain that there is no possibility of 25 | P a g e mistaken identity. in Yassin Hamisi Ally @ Big vs Republic (Criminal Appeal No. 254 of 2013) [2016] TZCA 746 (5 February 2016) (TANZLII), at pages 9-10, the Court observed that: The law on visual identification evidence in this country is well settled. Such evidence is of the weakest character and in a case depending for its determination essentially on identification, be of a single witness or more than one witness, that evidence must be watertight, even if it is evidence of recognition as was the case here. On what in law should be construed as watertight evidence, this Court in NHEMBO V. R., Criminal Appeal No. 33 of 2005 had this to say: - “In law... for evidence to be watertight, it must be relevant to the fact or facts in issue, admissible, credible, plausible, cogent and convincing as to leave no room for a reasonable doubt.” For Exhibit P1, it is the settled view of this Court that that evidence fell short of the legal requirement for visual identification. That piece of 26 | P a g e Exhibit P 1 does not reveal aspects relating to state of lighting at the place, in terms of source of light and its intensity, the state of mind of the victim whether drunk or sober, time spent to observed the assailant to be able to identify them, for how long did the victim know the assailants and how did she know them. All these aspects were lacking thus it cannot be stated with certainty that it the victim properly identified the assailants on that material night. This is exacerbated by the fact that allegedly the incident took place around 22:00 which was night time. The same weakness is observed in the evidence of PW 5 who stated to have seen the accused persons as the last persons to be with the deceased. In the cross examination, PW 5 revealed that there were no road lights at that place and he only used his naked eyes to identify the accused persons. PW 5 failed miserably to account on source and intensity of lights at that place, how did he identify the accused person in the night time while at a distant place without any mistakes. 27 | P a g e This evidence of PW 1 and PW 5 falls short to dispel the possibility of mistaken identity. The intensity of the light was not categorically adduced by this alleged eye-witness. The guiding principle on visual identification was reiterated recently in the case of Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78 (21 February 2024) (TANZLII), at pages 14-15, where the Court of Appeal stated that: We would, firstly, restate the settled position on visual identification evidence that, where conviction has to be found on visual identification, such evidence must be subjected to deep scrutiny to ascertain that the identification was really positive and that all reasonable possibilities of mistaken identification are eliminated. See- Kenedy Owino Onyachi and 2 Others v. Republic, Criminal Appeal No. 48 of 2006 (unreported). Reliance on visual identification evidence is thus conditional. As we have alluded to above, for such evidence to be relied upon it must pass the test enunciated in the case of Waziri Amani v. Republic [1980] T.L.R. 28 | P a g e 250 and expounded in other subsequent decisions of the Court including the decision in the case of Alfredy Kwezi @ Alfonce v. Republic, Criminal Appeal No. 216 of 2021 (unreported) where the Court stated that: "...before a court can found conviction basing on visual identification, such evidence must be watertight so as to remove the possibility of honesty but mistaken identity. In such cases the court is required to consider, among others, the following matters; one, the time the witness had the accused under observation; two, the distance at he observed him, three, the conditions in which such observation occurred, for instance whether it was day time or night time, whether there was good or poor lighting at the scene; four, whether the witness knew or had seen the accused before or not; and five, all factors on identification considered, it should be also be plain that were any material impediment or discrepancies affecting the correct identification of the accused person by the witness". 29 | P a g e It is my settled view that the prosecution evidence failed to shade sufficient light to this court to believe that there was any positive identification of the accused person. As such, it is my informed finding that there was no proper identification of the accused persons to link them with the offence they stand charged. On the other hand, there was no evidence whatsoever that 1st accused has been a motorcycle driver as alleged by PW 1 and PW 5. Failure to bring to Court evidence regarding him being a driver of the motorcycle save for mere words of PW 5 leaves this court in doubts that the 1st accused was a regular motorcycle driver for the deceased and that on material date he did use the PW 5’s motorcycle to ride the victim. This is coupled by conspicuous absence of any information on PW 5 having any knowledge to ride a motorcycle that he could lend to 1st accused. There is no evidence on the registration number of the motorcycle used, PW 5 never knew any leaders of the motorcycle leaders at Bicha Street nor produced any evidence of his engagement to work as the motorcycle operator for someone as it was allegedly, he had agreement to work for someone. 30 | P a g e This was somehow contradicted by PW 6 who stated that PW 5 was not found with motorcycle on day of arrest as he was irregular driver without permanent motorcycle. Such contradiction leaves a lot to be desired. Finally, the defence evidence has managed to sufficiently raise reasonable doubts on the prosecution’s case. Exhibit D. 1 which is the letter from Msaada A village indicated that on material date, the 2nd accused was at Chemba where he stayed from 22nd January 2023 to 4th February 2023. This defence of alibi was raised timely during the plea taking thus the defence managed to rebut the assertion that 2nd accused was at the scene of the crime on material date when the incident happened. This was a defence of alibi. The 2nd accused person raised the defence of alibi on the date set for plea taking and during his evidence in this Court reiterated that he was not present at the scene of crime. This was in line with the provisions of section 194(4) and (5) of the Criminal Procedure Act, Ca 20 R.E. 2022. The law provides that: 31 | P a g e (4) Where an accused person intends to rely upon an alibi in his defence, he shall give to the court and the prosecution notice of his intention to rely on such defence before the hearing of the case. (5) Where an accused person does not give notice of his intention to rely on the defence of alibi before the hearing of the case, he shall furnish case for the prosecution is closed. It is on record that the defence informed this Court and the prosecution way back in November 2023 when the plea taking was conducted. Thus, to rely on defence of alibi was appropriate in the circumstances as the same was compliant with the legal provisions. Indeed, I am guided by the principle in the case of Malimi Peter vs Republic (Criminal Appeal No. 480 of 2020) [2024] TZCA 65 (20 February 2024), at page 30, where the Court of Appeal stated that: 32 | P a g e Usually, the principle of law is well developed that when there are reasonable doubts, same should be resolved in favour of the accused. The rationale was sounded by Lord Justice Benjamin Franklin of England who wrote: "It is better one hundred (100) guilty persons should escape than that one innocent person should suffer" The same principle was improved by a Jewish jurist Maimonides when he wrote "it is better and more satisfactory to acquit a thousand (1000) guilty persons than to put a single innocent one to death" The sacred principle behind those rules is that, protection of the innocent is much significant for mankind than punishing the guilty. Given the evidence weaknesses demonstrated in the prosecution case, it is my settled view that the prosecution has failed to prove the case against the first and second accused persons to the level required by law. I shall proceed to find out that neither Yassin Idd Ijabe nor Joseph Zakaria Surumbu is guilty of the offence of murder each stood charged. Each of 33 | P a g e them is NOT GUILTY of the offence and I hereby proceed to acquit one Yassin Idd Ijabe and Joseph Zakaria Surumbu forthwith unless held for any other lawful purpose. It is so ordered. DATED at DODOMA this 8th day of November 2024 E.E. LONGOPA JUDGE 08/11/2024. 34 | P a g e