Republic vs Sebastian Athumani and 2 Others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL SESSIONS CASE NO. 13261 OF 2024 THE REPUBLIC................................................................. PROSECUTOR VERSUS 1. SEBASTIAN s/o ATHUMANI............. 2. KARIM s/o ALEX SHABANI.............. ACCUSED PERSONS 3. BURHANI s/o SAMADU RAMADHANI JUDGMENT 10th September and 1st November 2024 MIRINDO, J.: Abdi Juma a motorcycle taxi (loosely referred to in Kiswahili as bodaboda) driver at Magugu in Babati District within Manyara Region was found dead in Maswale Village in Babati District. Three persons, namely, Sebastian s/o Athumani, Karim s/o Alex Shabani and Burhani s/o Samadu Ramadhani were arrested and now stand charged with the murder of Abdi Juma contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2022] before the High Court at Manyara. They pleaded not guilty to the charge and after preliminary hearing, they stood for trial. The prosecution was conducted by Mr. Benedict 1 Kapela, learned Senior State Attorney, and Ms. Anifa Ally, learned State Attorney. Mr. Kuwengwa Ndonjekwa, Mr. Godfrey Mlingi, and Mr. Festo Jackson, learned defence counsel represented the first, second and third accused persons respectively. At the conclusion of the trial counsel for both sides presented their final written submissions. During the preliminary hearing, the first accused, Sebastian s/o Athumani disputed being nineteen years old. At the commencement of the trial his defence counsel, Mr. Ndonjekwa raised a preliminary point of law that the first accused was a child and was entitled to specialised proceedings. I conducted an inquiry as to his age and at the end ruled that he was a child. Given that the first accused was being charged with adults, I was guided by the provisions of section 100 (1) of the Law of the Child Act [Cap 13 R.E. 2019] not to conduct the proceedings in camera. I took into account the provisions of section 99 (1) of the Law of the Child Act due to the fact that the provisions of the Judicature and Application of Laws Act (Adoption of the Juvenile Court Rules in the High Court of Tanzania) apply the provisions of the Juvenile Court Rules, 2016 to the High Court. As a result, proceedings were conducted in the presence of the social welfare, Mr. Mathias Focus and later Ms. Jackline Goodluck; and in the presence of the first accused’s mother. Informality was adopted during the cross­ examination of the first accused. As already stated, the first accused was represented by Mr. Ndonjekwa, learned defence counsel. 2 In a murder charge under section 196 of the Penal Code, the prosecution carries the burden of proof to prove that (i) there was unlawful killing of a human being, (ii) unlawful killing was caused by the accused person, (iii) unlawful killing was done with malice aforethought. The prosecution evidence hinges on forensic identification of the accused persons, post-mortem examination report, cautioned statements and the testimonies of eleven prosecution witnesses. The first question for consideration is the existence of unlawful killing of Abdi Juma. There is no doubt that Abdi Juma is dead. The fourth prosecution witness, Sadiki Selemani, the deceased’s uncle received a phone call in the morning of 17 November 2023 about the death of Abdi Juma at Dodoma Transporter, Gichameda where the body of Abdi Juma was lying down. He went there and found many people who had gathered near the deceased body. Another person who saw the dead body of Abdi Juma was the sixth prosecution witness, Assistant Inspector Chisano Bigolame of Babati Police Station. On 17 November 2023, he led a team of police officers to Maswale Village where they found the deceased’s body surrounded by a group of people. They took the deceased’s body to Magugu Health Centre for postmortem examination. The body was kept at the mortuary before postmortem examination. The ninth prosecution witness, G.1006 Detective Corporal Abdallah Bakari Mkoma of Magugu Police Station was also in the company of the sixth prosecution witness. 3 He equally saw the deceased body lying down at a location in Maswale Village. These facts clearly establish that Abdi Juma is dead. The fourth prosecution witness noticed that the deceased’s body had been slashed. It had injuries on the head. The sixth prosecution witness saw the deceased body had injuries on the head and observed that the injuries were caused by a sharp object. He equally noticed that parts of the deceased brain had protruded outside. The ninth prosecution witness saw similar injuries on the head and formed opinion that they may have been inflicted by a sharp object to the extent that parts of his brain were outside. These facts and observations were confirmed by the findings in the postmortem examination report which was admitted as exhibit P3. Thus, there is sufficient evidence to show that Abdi Juma met with an unnatural death at Maswale Village. It is now necessary to probe into the circumstances of his death in establishing whether the killing was unlawful. The determination of this question is intrinsically linked with the identification of person or persons under whose hands he met his death. According to the ninth prosecution witness, investigation of the death of Abdi Juma commenced on 17 November 2023 by interviewing people who had gathered in a location near his body where it was found lying down. 4 The first accused person, Sebastian s/o Athumani was arrested on 20 November 2023 by the tenth prosecution witness, G.3491 Corporal Dickson Sylivester Bihemo at Majengo “A”, Kibandani area at Magugu in Babati District. The tenth prosecution witness arrested the second and third accused persons on 22 November 2023 at Majengo “A”, Kwababa Semeni area. He took them to Magugu Police Station. The forensic identification of the accused persons was triggered by a white shirt seized near the crime scene. The sixth prosecution witness, Assistant Inspector Chisano Bigolame with his team of police officers seized at the crime scene a white shirt with black and blood spots. The shirt was some seventy metres away from the deceased’s body. The seizure of the white shirt is recorded in the certificate of seizure that was admitted as exhbit P. 4. The shirt was handed over to the exhibit keeper at Babati Police Station, E.2449 Sergeant James Wenscelus Matiko, the second prosecution witness. On 26 November 2023 all the accused persons were brought to Babati Town Hospital in order that their blood samples be taken for purposes of DNA matching profile with the white shirt seized at the crime scene on 17 November 2023. In their defence all the accused persons admitted that they were brought to Babati Town Hospital but their blood samples were not collected. The first and second accused stated that apart from being asked their names, blood samples were not collected from them. The third accused stated simply that no blood 5 sample was collected from him. On cross-examination by Mr. Kapela, learned Senior State Attorney all the three accused persons could not remember their counsel cross-examining Rosemary Mghanja, the third prosecution witness on the issue of blood samples. The issue of collection of blood samples was alluded to by the third prosecution witness, Rosemary Mghanja, who is a laboratory technologist at Babati Town Hospital. The issue of blood samples was repeated by the sixth prosecution witness. There was nothing in cross-examination to the effect that the blood samples not being taken. This was a crucial discrediting fact that the defence counsel could have effectively deployed to destroy the evidence about the blood samples. Moreover, all the accused admitted during the preliminary hearing that blood samples were collected from them. Section 192 (4) of the Criminal Procedure Act deems facts admitted or agreed upon at the preliminary hearing to have been “duly proved” unless the interests of justice demand that they may be proved during the trial. There was no suggestion from the defence counsel that facts regarding blood samples be proved in the course of trial. I conclude that claims that blood samples were not collected from the accused persons are unfounded. I hold that the blood samples were collected from the accused persons. The blood samples were collected by the third prosecution witness who labelled them and handed them over to the sixth prosecution witness. The sixth 6 prosecution witness handed them to E.2449 Sergeant James Wenscelus Matiko, the exhibit keeper at Babati Police Station, the second prosecution witness. The second prosecution witness handed them over to the eighth prosecution witness, E.8080 Detective Sergeant Jimmy who travelled with them to the Government Chemist Laboratory Agency in Dar es Salaam. He submitted them to the first prosecution witness, Sadock Moses Mboya, a chemist from the Chief Government Chemist Laboratory Agency. The white shirt was also taken to Chief Government Chemist Laboratory Agency to the eighth prosecution witness and handed them over to the first prosecution witness. These facts are evident from their testimonies before this Court and further supported by the chain of custody records of 17 November 2023 and 26 November 2023 which were collectively admitted as part of exhibit P. 2. The defence counsel contended in their joint submission that there was no documentary evidence indicating compliance with the provisions of sections 3, 14, 26 (1) and (2), and section 28 (1) of the Human DNA Regulation Act 8 of 2009. They pointed out that in Shilanga Bunzali v R (Criminal Appeal 600 of 2020) [2022] TZCA 750 it was held that where the DNA profiling procedure is not adhered to the evidence is liable to be disregarded. The defence counsel, in addition noted that the chains of custody records were defective for insufficient discerption. 7 In cross-examination, Mr. Ndonjekwa enquired from Rosemary Mghanja the presence of a social welfare officer or parents or relatives during the collection of the blood sample of the first accused. She replied that none of them were present. This response indicates clearly that the provisions of section 30 (2) of the Human DNA Regulation Act were violated. The subsection directs that a criminal suspect below the age of eighteen years have a right to have the sample taken in the presence of his “parent, guardian, a representative or a social welfare officer.” It does not appear that the sampling officer is bound to inform the criminal suspect to exercise that right but I would hold that the best interest of the child requires such information to be furnished to the criminal suspect who is a child. In a vigorous cross-examination, Mr. Mlingi, sought to discredit the entire process of collection, storage, documentation, and transportation of the blood samples for DNA testing. To begin with, the learned counsel questioned the competency of Rosemary Mghanja to collect blood samples. Rosemary Mghanja stuck to her guns and maintained that she was competent to collect those samples: I am not a medical doctor. I do not know if DNA must be taken by a medical doctor. I am supposed to be a DNA analysist before being allowed to take the test of DNA samples. I do not know if I am supposed to have special course for taking DNA. I do not know if I was supposed to be gazetted by the minister to take DNA samples. 8 Mr. Mlingi initially posed this question to Sadock Moses Mboya who conducted the laboratory analysis of the white shirt and the blood samples. His response that a competent person: ...to take the sample is the one who can bring it to the Government chemist’s office. I do not know if he was the right person when he brought the sample This was an equivocating answer and the question remains open for consideration by this Court. Section 13 of the Human DNA Regulation Act authorises collection of human DNA samples for purposes of criminal investigation. Samples collected at a crime scene are used to create DNA profiles that are compared with those obtained from suspects. The main purpose of DNA in criminal evidence is to identify whether a sample found at the crime scene matches a DNA sample of the suspect. It constitutes an important piece of evidence with high probative value. In People v Wesley (533 N.Y.S. 2nd 643 at 644 (1988), the importance of DNA evidence was equated to that of cross-examination: If DNA Fingerprinting works and receives evidentiary acceptance, it can constitute the single greatest advance in the ‘search for truth’, and the goal of convicting the guilty and acquitting the innocent, since the advent of cross­ examination In this regard, the case of Cristopher Kandidius alias Albino v R (Criminal Appeal No. 394 of 2015) [2016] TZCA 196 (20 December 2016) was cited by Mr. 9 Kapela, learned Senior State Attorney for the proposition that DNA evidence is highly persuasive where it is supported by circumstantial evidence. Yet DNA evidence also poses significant risks and is a challenge to individual liberties. Its probative value partly varies according to the quality control in sample collection and DNA testing. Part of the risks that may affect DNA testing results have been elaborated by Semikhodskii in Dealing with DNA: A Legal Guide, London and New York: Routledge-Cavendish, 2007, at xii: A match between the defendant and a biological sample recovered from the crime scene does not and should not automatically mean conviction, even if it is a complete match. DNA is a means of identification and, as any other means, of identification, it is prone to errors, uncertainties and conflicting interpretations. DNA analysis can be compromised by a large number of factors such as environment, contamination, bad laboratory practice and human error to name just a few. The results obtained are subject to incorrect evaluation due to errors in logical thinking or the use of an inappropriate population database. In many cases even correctly obtained and analysed DNA results are ambiguous and open to several opposing interpretations. Legislative frameworks of DNA evidence in most countries are designed to secure rights of suspects and accused persons, on the one hand, and ensure public interest in gathering evidence, on the other, as restated by the Supreme Court of Canada in R.v.S.A.B. [2003] 2 SCR 678. Legislative frameworks introduce procedural safeguards relating to authorisation by senior police officers, consent, different procedures for intimate and non-intimate samples, quality control in the collection and managements of samples, disclosure of results to the person and 10 destruction of samples after the end of proceedings. See Chalmers (ed), Genetic Testing and the Criminal Law, London: UCL Press, 2005, pp. 1-21. With these legal principles in mind, I will address issues raised in cross­ examination and final submissions. In dealing with the question of competency, it should be noted that there are two categories of sampling officers under section 14 of the Human DNA Regulation Act. The fist category consists of sampling officers gazetted by the Regulator of Human DNA Services under section 14 (1). The second category consists of medical practitioners and police officers under section 14 (2). Section 3 of the same legislation restrictively defines the expression “police officer” as confined to one who: (i) is in charge of a police station, or (ii) is of the above the rank of an officer in charge of a police station, or (iii) is of the rank of an assistant inspector if the officer in charge of a police station is absent, unable to perform his or her duties on account of illness or any other cause, or (iv) has been directed by the Minister responsible for home affairs to perform sampling work Among persons eligible to be appointed as sampling officers under section 14 (1) of the Human DNA Regulation Act are laboratory technologists. Their 11 eligibility is set forth under Regulation 18 (1) of the Human DNA (General) Regulations, GN No. 582 of 2019. Regulation 18 (2) and (3) imposes two other conditions: First, eligibility for appointment as a sampling officer equally depends on at least six months experience as an analysist in a Human DNA laboratory. Secondly, an appointee must attend a special Human DNA sampling issued by the Regulator of Human DNA Services. Other than outlining her professional qualifications as a Laboratory Technologist and her level of education, there is nothing in the testimony of Rosemary Mghanja indicating her to be a gazetted sampling officer. There is no evidence that she had undergone a special course in Human DNA sampling. In the case of Shilanga Bunzali v R referred to by the learned defence counsel, a Detective Police Constable in a murder charge collected samples from the crime scene. He drew blood specimen from a pool of blood on the floor, seized a blood-stained panga and trousers. The samples were sent to the Chief Government Chemist Laboratory Agency for DNA analysis. The report indicated that the specimen was human blood of the deceased and that the DNA profile matched with blood stains found in the accused’s trousers and panga. The Court of Appeal held that the Detective Police Constable was an unqualified sampling officer in terms of section 14 of the Human DNA Regulation Act and discarded the evidence of DNA profiling. 12 As the white shirt was seized by Assistant Inspector Chisano Bigolame, it was collected by a qualified sampling officer yet there is more to be said about the collection and management of blood samples and the white shirt. The learned defence counsel jointly attacked the chain of custody record relating to the blood samples which were admitted as exhibit P.2. Mr. Ndonjekwa, cross-examined Rosemary Mghanja about insufficient recording in exhibit P.2. In response to cross-examination by Mr. Jackson, she admitted not knowing very much about the chain of custody record. She admitted not knowing the context of the words “source of evidence/property,” “taken from, “received from” and “found at” used in the chain of custody record. The third prosecution witness, on being cross-examined by Mr. Mlingi, Rosemary Mghanja appeared to be unaware of the Sample Management form. She stated that after collecting the blood samples she was at liberty to store them or give them to the police. She handed the samples to the police. She said that police officers did not bring the sample form for transportation. These issues raise important questions about collection and management of human DNA samples. The Supreme Court of India in Naveen alias Ajay v the State of Madhya Pradesh 2023 INSC 936 at para. 19 reaffirmed the legal significance of proper management of human DNA samples: ...if DNA evidence is not properly documented, collected, packaged, and preserved, it will not meet the legal and scientific requirements for 13 admissibility in a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving DNA evidence as it can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen even when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches the area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), suspect(s), scene of crime for solving the case should be identified, preserved, packed, and sent for DNA Profiling. There must be proof of written authorisation from a senior police officer of or above the rank of an inspector under section 25 (1) and (2) (c) of the Human DNA Regulation Act. The third prosecution witness, Rosemary Mghanja, testified about a letter brought by the sixth prosecution witness who was accompanied by other police officers. But this letter was not tendered in court. There is no room to rule that there was written authorisation. Secondly, there must be proof of compliance with procedural safeguards for suspects and accused persons. It is the obligation of sampling officers in criminal investigation to inform suspects, accused persons or volunteers whose samples are to be taken important processes stated under section 30 (1) of the Human DNA Regulation Act. These are issuance of authorisation, reasons for collecting human DNA samples, the procedure to be used to collect the sample and that the genetic information obtained may be used as evidence for or against them. The intimate sample of a female person must be taken by a female sampling officer. 14 Under section 28 (1) a prior consent of the sample source (the person from whom the sample is to be taken) or his or her representative must be obtained. The sample source, or his or her representative must sign the rights and assurance form which is set forth in the second schedule to the Act. Section 28 (3) of that Act, however, disapplies this requirement in respect of “dead bodies, criminal investigation or “in compliance with court order”. Subsection (3) categorically states that in those cases no consent is required. The disapplication of consent in criminal investigation is highlighted by the provisions of section 30 (4). This provision which does not appear to be happily worded is to the following effect: Where a person refuses to give consent for sample for Human DNA to be taken from him under this Section, the provision of Section 59(4) of the Criminal Procedure Act shall be invoked. Section 59 (4) of the Criminal Procedure Act [Cap. 20 R.E 2022] referred to in section 30 (4) is to the following effect: Any person who refuses to have his measurements, prints, recordings, photographs or samples taken as required under subsections (1) and (2) commits an offence and shall be liable on conviction to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding twenty- four months or to both such fine and imprisonment. 15 A reading of section 59 (4) of the Criminal Procedure Act indicates that the legislative intent under section 30 (4) of the Human DNA Regulation Act is to criminalise refusal to have one’s sample collected. It is my considered opinion that the word “consent” was either inadvertently placed in section 30 (4) of the Human DNA Regulation Act because under section 28 (3) of the Human DNA Regulation Act, consent is not required, or does not apply to accused persons. Section 30 (4) of the Human DNA Regulation Act is slightly different from section 62 of the Police and Criminal Evidence Act 1984 of the United Kingdom which provides for a prior consent of sample source and “penalizes” refusal to consent by adverse inferences amounting to corroboration of the prosecution evidence. Section 31 (1) of the Human DNA Regulation Act envisages use of reasonable force to obtain DNA samples which is specially stated in paragraph six of Part A of the Sample Management Form in the Eighth Schedule to the Human DNA (General) Regulations, GN No. 582 of 2019. But generally, under section 31 (1) of the Human DNA Regulation Act, the sample must be taken in “fair” and “legal” means. Where necessary, the collection of samples may be intrusive but human dignity must be taken into account. The relationship between the use of reasonable force to obtain human DNA samples and the privilege against self­ incrimination does not arise in the instant case. 16 Nevertheless, it is unclear in the instant case if there was substantial compliance with the provisions of section 30 (1) of the Human DNA Regulation Act. Besides, procedural safeguards, the Human DNA Regulation Act set forth special precautions in connection with packaging, storage and transportation of samples to the Chief Government Chemist Laboratory Agency. Section 32 (2) of the Human DNA Regulation Act directs that storage of the human DNA sample to be “under the custody” of the sampling officer. The sampling officer must “keep it strictly under lock and key.” There is no evidence to suggest that the second prosecution witness, E.2449 Sergeant James Wenscelus Matiko who stored the white shirt and blood samples was a sampling officer. While section 14 (3) of the Human DNA Regulation Act imposes the obligation to transport samples to a sampling officer, section 33 (1) of that Act authorises the sampling officer “to cause the sample...to be transported to the laboratory through appropriate safe means.” The sampling officer is obliged to “sign every stage pertaining to the transportation of the sample.” This means that the sampling officer retain control in the management of transportation of the samples. The samples were transported to Dar es Salaam for laboratory analysis by the eighth prosecution witness, E.8080 Detective Sergeant Jimmy. 17 There is no evidence that he was a sampling officer to transport the samples in terms of section 14 (3) of the Human Regulation Act and Regulation 19 (1) (d) of the Human DNA (General) Regulations. In general, there was no proof of adequate documentation of collection, packaging, storage and transportation of both samples as mandated by various provisions of the Human DNA Regulation Act. Section 34 (5) directs that collection, packing, storage, transportation and receiving of samples must comply with regulations made under the Act. The investigating officers used a general chain of custody record instead of a detailed chain of custody record form for Human DNA samples set forth under the eighth schedule of the Human DNA (General) Regulations. This form entitled “Sample Management Form” is in the nature of a chain of custody record designed for the management of human DNA samples. It was not complied with. In the final submission, Mr. Kapela, learned Senior State Attorney noted that there were human errors in the signing of the chain of custody record of 26 November 2024. He pleaded that I should overlook those errors because there was no more than a slip of the pen. Having held that the chain of custody records were not prepared in compliance with the Sample Management Form, this plea has not merit. 18 It follows that I accord no weight to the certificate of seizure in relation to the white shirt admitted as exhibit P. 4, the chain of custody records in connection with the white shirt and blood samples, admitted as part of exhibit P.2, and the Forensic DNA profiling test report admitted as exhibit P 1. For these reasons, I hold that there was no forensic identification of the accused persons. I turn to consider the accused cautioned statements. The first accused, Sebastian s/o Athumani recorded a cautioned statement before G.1006 Detective Corporal Abdallah Juma Bakari, the ninth prosecution witness. The admissibility of this statement was successfully objected to by Mr. Ndonjekwa on the grounds that it contravened various legal provisions relating to recording children confessions. I upheld the objection after being satisfied that the ninth prosecution witness did not comply, among others, with the provisions of Rule 41 (3) of the Law of the Child (Juvenile Court Procedure) Rules, 2016. Voluntariness of a child’s confession, under Rule 41 (3) depends, among others, on the presence of “a parent, guardian, child supporter, guardian ad litem or legal representative” to assist the child in recording a confession. As none of these persons were present, I had no reason to admit the confession of the first accused. For the same reasons, I sustained an objection to the admissibility of the confession statement recorded before a Justice of the Peace, Kandida Mathew Kalembo, the eleventh prosecution witness. 19 The third accused, Burhani s/o Samadu Ramadhani remained at Magugu Police Station while the second accused, Karim s/o Alex Shabani was taken to Babati Police Station. The third accused recorded a cautioned statement dated 22 November 2023 before the ninth prosecution witness, G.1006 Detective Corporal Abdallah Bakari Mkoma. During the trial the defence challenged the admissibility of the cautioned statement, not on its voluntariness but on procedural points. I overruled the objection and admitted the cautioned statement as exhibit P.7. During the defence case, the third accused retracted the cautioned statement. He alleged torture and being forced to sign a paper containing writing. He defended himself that he was asked only about his names, age, tribe, and level of education. This is what he said: ... He asked me my names, age, tribe and my level of education. I do not remember the other thing he interviewed me. He did not ask me anything else. I do not remember what else he asked me. On cross-examination by the prosecuting attorney, Mr. Kapela, he maintained that: At Babati Police Station I was interrogated by police officer, Abdallah. He asked me my names, I told him, my tribe, age, education and others which I do not remember. This line of defence is doubtful given that the third accused can simply recall being asked his personal particulars and level of education but do not remember everything else he was asked. 20 The consequence of repudiating or retracting a confession after the closure of the prosecution has frequently been pronounced upon by the Court of Appeal. It is widely presumed that the accused who opt not to oppose a confessional statement when it is being tendered in court loses the opportunity to deny making its or its contents after it has been admitted. This view was reaffirmed in Omari Iddi Mbezi and three others v R, Criminal Appeal 227 of 2009, the Court of Appeal observed that: ...If an accused person does not object, the document is admitted and its contents read over. If no objection is made at that stage, an accused cannot be heard in objection to its contents thereafter... A confession admitted without objection or after the objection has been overruled is considered to have been voluntarily made. Where the confession was admitted without objection the accused is generally barred from questioning its voluntariness at the defence stage or on appeal. The general principles regarding presumption of a confession whose voluntariness was not objected to were summed up in the leading case of Nyerere Nyague v R (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 in a judgment delivered by Massati JA: As we understand it, the relevant law regarding admission of accused's confession under this head is this: First, a confession or statement will be presumed to have been voluntarily made until objection to it is made by the defence on the ground, either that it was not voluntarily made or not made at all...Secondly, if an accused intends to object to the admissibility of a statement/confession, he must do so before it is admitted, and not during cross examination or during defence.Thirdly, in the absence of any objection to the admission of the statement when the prosecution sought to 21 have it admitted, the trial court cannot hold a trial within trial or inquiry suo motu, to test its voluntariness...Fourthly, if objection is made at the right time, the trial court must stop everything and proceed to conduct a trial within trial (in a trial with assessors) or an inquiry, into the voluntariness or otherwise of the alleged confession before the confession is admitted in evidence.Fifthly, even if a confession is found to be voluntary and admitted, the trial court is still saddled with the duty of evaluating the weight to be attached to such evidence given the circumstances of each case. And lastly, everything being equal the best evidence in a criminal trial is a voluntary confession from the accused himself. [References omitted] An objection raised at the defence stage or an appeal is frequently considered to be belated attempt to escape criminal liability. It is frequently expressed as an “afterthought” or a “desperate lie.” As reaffirmed mostly importantly in Richard Lubilo and Another v R [2003] TLR 149, using torture to procure a confession is a fundamental objection to its admissibility. It is very unlikely that defence counsel conversant with the fact of torture would make it a defence strategy not to seize the earliest and best opportunity to object to a confession procedure by torture. A defence strategy preventing defence counsel from raising issues of torture before the admissibility of a cautioned statement or during the cross-examination of the police officer who recorded is beyond comprehension. Given that the defence counsel for the third accused never raised objection on the voluntariness of the cautioned statement or cross-examined about, it is to be inferred that the repudiation was unfounded. 22 There is nothing of substance to challenge the voluntariness of the cautioned statement. The Court of Appeal held in Dickson Elia Nsamba Shapwata and Another v Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 (30 May 2008) that allegations of untrue admission of guilty procuring a confession must raise doubt in the prosecution case: In order to effectively challenge a confession, a person is practically obliged to give evidence. An appellant must give evidence to show how the threat, inducement, or promise caused him to make the confession as their mere existence is not enough to make the confession involuntary. One should be able to say that without it, the person would not have made a statement. In the instant case, the learned trial judge correctly conducted a trial within a trial in respect of each disputed statement, evaluated the evidence adduced before him and concluded that the statements were made voluntarily^ I hold that the third accused voluntarily recorded the cautioned statement before the ninth prosecution witness. A confession admitted without objection or after the objection has been overruled is considered to have been voluntarily made which sets a stage for considering its weight. Admissibility of evidence is different from its weight as restated in Nyerere Nyague cited above and Steven s/o Jason and Two Others v R, Criminal Appeal 79 of 1999. Truthfulness of a confession is a question of weight and is distinct from its voluntariness which is part of admissibility. This distinction was brought out in the celebrated case of Tuwamoi v Uganda [1967] EA 84 [at 91]: 23 We would attempt to simplify the position. First the onus of proof in any criminal case is on the prosecution to establish the guilt of an accused person. A conviction can be founded on a confession of guilt by an accused person. The prosecution must first prove that this confession has been properly and legally made. The main essential for the validity of a confession is that it is voluntary...If the court is satisfied that the statement is properly admissible and so admits it, then when the court is arriving at its judgment it will consider all the evidence before it and all the circumstances of the case, and in doing so will consider the weight to be placed on any confession that has been admitted. In assessing a confession the main consideration at this stage will be, is it true? And if the confession is the only evidence against an accused then the court must decide whether the accused has correctly related what happened and whether the statement establishes his guilt with that degree of certainty required in a criminal case. This applies to all confessions whether they have been retracted or repudiated or admitted, but when an accused person denies or retracts his statements at the trial then this is a part of the circumstances of the case which the court must consider in deciding whether the confession is true.. The Court of Appeal of Tanzania has reaffirmed this legal position in Hatibu Tengu v R, Criminal Appeal 62 of 1992; Lubilo v R [2003] TLR 149; Selemani s/o Mpoma v R, Criminal Appeal 180 of 2014 and in Umalo Mussa v R, Criminal Appeal 150 of 2005 to mention but a few. In Hatibu Tengu v R, the Court of Appeal outlined the criteria for determining the truthfulness of a confession: ... Thus the first test namely whether the confession by the appellant was made properly and legally, seems to have been satisfied. The next test comes when assessing or evaluating the confession itself, namely whether it is true. In arriving at this decision the court is required to consider all the circumstances in the case including the question whether there is some corroboration. If the confession is corroborated in some material particular by some other independent evidence, the court can easily arrive at the 24 conclusion that the confession is true. In the absence of such corroboration, the law does not prohibit the court from acting and founding a conviction on such confession if it is otherwise satisfied on the truthfulness of the confession .... This holding in Hatibu Tengu emphasises on the need to “consider all the circumstances in the case including” the presence of “corroboration.” The standard criterion for determining the truthfulness of a confession is the “peculiarity in the facts within the knowledge of the accused.” This criterion which has been widely applied in Tanzania has been highlighted in the Zimbabwean case of R v Sambo 1964 RLR 565 at 571: If the accused mentions facts in his confession the knowledge of which he could only have come by being connected with the crime, the mention of such facts will, of course, be most cogent evidence to show that the confession is genuine. But even if the accused may have been questioned by the police on these very facts, their mention still has considerable probative value. If an accused freely makes a long statement and all the known facts fit in their proper sequence into this statement, this may often be sufficient reason on which to base a conclusion that the confession is genuine, even if the police may previously have questioned the accused on these facts. Because unless the police put the actual words of the statement into the accused’s mouth, if his only knowledge of the true facts has come from police questioning, he is hardly likely to present a coherent and convincing story into which all the known facts dovetail perfectly. A confession of such a type will often, therefore, itself prove its genuineness In William Mwakatobe alias Mwakaje and Another v R, Criminal Appeal 65 of 1995 the appellant contended that he was wrongly convicted on his retracted confession whose corroboration was extremely weak. Dismissing this ground of 25 complaint and sustaining murder conviction, the Court of Appeal of Tanzania held that: ...the appellant’ confessions to the justice of peace (PW.7) were so detailed, elaborate and thorough that no other person would have known such personal details but the appellants. Appellants retracted confessions which we have found to be true were, in our considered view clumsy attemps to evade the consequences of their criminal acts. The Court of Appeal in Hemed Abdallah v R [1995] TLR 172 upheld the murder conviction after wondering about the comprehensive information about the killing of the deceased provided in the appellant’s retracted confession given that there was no eye-witness to the killing of the deceased. The Court upheld the murder conviction ... That being the case, it beats our imagination as to how all the details pertaining to the sequence of events leading to the death of the deceased were obtained and included in the appellant's extra judicial statement to the Justice of the Peace. Who else could have supplied such details if not a person who either saw the incident or was involved in it. Here there was no other person who witnessed the incident which led to the death of the deceased. As the statement was made by the appellant, it is to our minds highly unlikely that somebody else other than the appellant could have fitted in all the details in the statement. The appellants in Emmanuel Lohay and Another v R (Criminal Appeal No. 278 of 2010) [2013] TZCA 292 were charged with murder and their cautioned and extra-judicial statements were admitted without objection. At the defence stage Emmanuel Lohay disowned his cautioned and extra-judicial statements on the grounds that “he was forced to sign something he did not know.” The second 26 appellant, Udagene Yatosha equally disowned his cautioned and extra-judicial statements. Both of them were convicted of murder and on appeal to the Court of Appeal it was held that the statements contained true account of the appellants commission of murder due to the peculiarity of facts they contained: This brings us to the cautioned and extra-judicial statements. The statements have one common feature. All of them describe the circumstances and the manner in which the deceased met his death. They are so detailed that the events described therein could have only been given by people who had the knowledge of how the deceased met his death. The statements also show the role played by each one of them. I will now analyse the contents of the cautioned statement to determine their truthfulness. The cautioned statement contains a brief account of the third accused personal particulars and the detailed minutiae of the plot to kill Abdi Juma and its implementation. He narrated that on 13 November 2023 the three accused were in a location where the third accused supervised pool game. While engaged in normal conversation, the deceased, Abdi Juma, came with his black motor cycle of Kinglion design. He came to purchase some items in a nearby shop. The second accused told them that he had admired the motor cycle and the first accused advised the second accused to choke the deceased. The deceased left and the second accused advised them to wait until he had devised a plan to obtain the motorcycle. In the afternoon of 15 November 2023, they met in a studio run by the first accused. The second accused informed them that the correct way to obtain the motor cycle was to choke the deceased and rob 27 him the motor cycle. In the afternoon of 16 November 2023, the second accused came to the location where the third accused used to supervise the pool game and informed him that the plan was complete and it would be implemented in the evening. The second accused made a call to the first accused and informed him that the plan was ready and he should wait for their phone. Around 7 in the evening the second accused came in the place where there is pool game and told the third accused that they were leaving. The deceased is coming. The deceased came and the second accused phoned the first accused. The first accused came and all of them got on the motor cycle. He described in Kiswahili their seating arrangement on the motor cycle: ...Mimi nilikuwa mtu wa kwanza toka kwa dereva ya ABDIs/o? Katikati alikuwa SEBASTIAN s/o ATHUMANI na mwisho aliwa KARIM s/o ALEX. The next statement is about adding fuel at Meru Petrol Station located between Matufa and Magugu. The first and second accused alighted from the motor cycle and the third accused and the deceased went to add fuel. After adding fuel, the third accused stated that they met one motor cycle rider when they were returning to the tarmac road. The deceased stopped the motor cycle, and the deceased and that motorcycle rider greeted each other. That motor cycle rider left and the third accused and the deceased drove back to the tarmac road. The first and second accused got back on motor cycle and they continued with their journey. 28 This narration is followed by that of description of the distance they travelled until when they attacked the motor cycle driver, Abdi Juma. The third accused stated: ...baada ya kufika Matufa tulielekea njia iendayo MANYARA Sugar, tulienda mbele kabisa kama tunaenda GICHAMEDA tukiwa njiani ndipo mimi nikachomoa bisibisi na kumchoma ABDI s/o? Begani aliyumba tukaanguka na aliponyanyuka akaanza kukimbia akielekea Mashambani, shamba la mahindi na kisha kuanguka, mimi na KARIMU s/o ALEX tulimkimbiza na aliponyanyuka ndipo KARIM s/o ALEX akamkata na sime kichwani, ABDI s/o? Akaanguka chini kisha tukamuacha na kurudi kwenye pikipiki. What happened after stabbing the deceased is contained in the following statements: ...KARIM s.o ALEX alikata waya wa pikipiki Mimi sijui ni waya gani, kisha akawasha pikipiki akatupakia sisi na kuondoka tukitumia njia tuliojia na tukapita njia ya kwenda MASWARE na baada ya kufika MATUFA tukasimama, wakaniachia pikipiki niendeshe kuipeleka kwa DANIEL s/o GEOFREY, wao wakaanza kutembea, na DANIEL s/o GEOFREY nilimkuta Maeneo ya Kwa Baba SEMENI huko MAGUGU nikamkabidhi pikipiki hiyo ili akaiuze, Mimi sikujua bei waliongea na KARIM s/o ALEX, Sime na bisibisi alibaki nayo SEBASTIAN s/o ATHUMANI wakati Mimi nikiondoka na pikipiki huko MATUFA. Baada ya Makabidhiano ya pikipiki hiyo Mimi nilienda kulala... In essence these are the facts pertaining to the killing of the deceased. These facts provide a comprehensive account of the third accused’s role in the killing of the deceased which are only known to the accused themselves. One fact in particular was peculiar to the third accused, the deceased and the unknown motor cycle rider whom they met on the way back to the tarmac road after adding fuel at Meru Petrol Station. This peculiar fact by itself establishes that the 29 third accused was among the last persons to be with the deceased while still alive. From its comprehensiveness, I am satisfied that the cautioned statement of the third accused person is true and is clear evidence that the deceased was unlawfully killed and the third accused took part in his killing. As alluded to earlier, the second accused person, Karim s/o Alex Shabani, was brought to Babati Police Station upon his arrest on 22 November 2023. The seventh prosecution witness, F. 495 Detective Sergeant Khatib recorded his cautioned statement. Mr. Mlingi, learned defence counsel for the second accused person objected to its admissibility for want of proper certification under section 10 (3C) of the Criminal Procedure Act [Cap. 20 R.E. 2022]. I dismissed the objection after forming the view that the appropriate certificate for the cautioned statement is one provided for under section sections 57 and 58 of the Criminal Procedure Act. The cautioned statement was so certified. The cautoined statement was admitted and marked as exhibit P.5. Like the third accused, the second accused complained about being tortured and forced to sign a “written” paper. He retracted and repudiated the cautioned statement. He stated that apart from being asked his names, residence and work, the seventh prosecution witness did not ask him anything else. 30 In his defence, the second accused person spoke about recording an extra-judicial statement before a Justice of the peace in a Primary Court where he not only denied committing the offence but also informed the Justice of the Peace about being tortured. The next morning, they took me and Sebastian. They took us to the car and told us that we are going to the Justice of the Peace in the Primary Court. When we reached the Primary Court, we disembarked and were taken to Primary Court’s lock-up. After two minutes Sebastian was taken out. I remained at the lock up. I remained there for some minutes. Sebastian returned. I was then taken out. I was taken to the Justice of the Peace. The Justice of the Peace introduced herself as such. He was white of male gender. He was short. The Justice of the Peace asked me if I knew why I was there. I replied that I did not know. He told me that I was facing murder charge of Abdi Juma. He asked me if it is true or not. I answered that it is not true. He asked me if I was not told of my case. I told him that they had not told me of the charge. They are just asking me the whereabouts of the motorcycle. He asked me what was done to me at the Station. I told him that I was taken to the bush and was beaten. He asked me if I had any scars of being beaten. I answered yes. I showed him the scars I had at the back. He called a police officer. The police officer came in and took me away. The police officer who took me from there was Chisano. On cross-examination by Mr. Kapela, learned Senior State Attorney, the second accused maintained being taken to the Justice of the Peace and showing him the scars of being tortured. The pre-trial disclosure of evidence is a crucial process in trials before the High Court. One outcome of this process is that while the prosecution is not 31 bound to call every witness at its disposal, the defence is at liberty to call any witness which the prosecution has chosen not to call if the defence consider that witness to be material to its defence. The Court of Appeal in Jandika Makwarija and Another v R, Criminal Appeal No.175 of 1991 approved this principle as stated by the Court of Appeal for Eastern Africa in Oloro s/o Daitayi and Others v R (1956) 23 EACA 493: Where neither side calls a possible witness, in a proper case a satisfactory direction might be “X is absent and it is not very satisfactory that he is not here; the prosecution could have called him, and they have not done so, perhaps for very good reasons. The defence might have called him or not, as they liked.” In Makwarija’s case, two persons who were seeing a medicine man at Mangole Village in Iramba District were convicted of murdering a woman near a river. On appeal it was contended that the medicine man should have been called as a prosecution witness. It was contended that the medicine man would have clarified if the appellants were still in his home at the time he deceased was killed. He would also have clarified whether or the axe used for attacking the deceased was found in his house. The Court of Appeal declined to draw an adverse inference holding that the medicine man was a material witness for the appellants’ defence of alibi. Mnzavas JA delivered the judgment of the Court of Appeal which highlighted this fact: 32 In the present case if the medicine man was one of the witnesses the prosecution had listed to call and later decided not to call him the prosecution should have offered him for cross-examination by the defence. However on the facts of this case it would appear that the medicine man would have been a more appropriate witness for the defence in view of the appellant’s defence of alibi. That the defence decided not to call him is difficult for us to understand. This principle was echoed in Christopher Nyimbo v R, Criminal Appeal 31 of 1997, Court of Appeal of Tanzania at Mbeya (2004), the appellant’s co-accused for murder was discharged on a nolle prosequi. As he was not called as one of the prosecution witnesses, the appellant’s counsel contended on appeal to no vail that he was a material witness. In its judgment delivered by Mroso JA, the Court of Appeal held that after the prosecution opted not to call him as a witness it was up to the defence to call him if they so wished: ... The prosecution is not under an obligation to call every witness who may know something about the commission of a crime. If, however, the prosecution knows a witness has evidence which is favourable to an accused person the better practice is to call the witness and offer him to defence who may elect to use him .. In Speratus Theonest alias Alex v R, Criminal Appeal 138 of 2005, the prosecution listed seven witnesses at the preliminary hearing but called only five of them. It was contended on appeal that the failure to call them should attract adverse inference. The Court dismissed the complaint on the principle that the prosecution prima facie duty to call witness is limited and where a wittiness with material evidence for the defence is not called it is for the defence to call that 33 witness. Rutakangwa JA delivered the judgment of the Court of Appeal in which it was said: In our opinion, this should not be taken to mean that the prosecution has the obligation to produce witnesses irrespective of the consideration of number and reliability. As is clear from the Court’s holding in... [Aziz Abdallah v R [1991] TLR 71] the prosecution has a discretion as to which witnesses should be called. After all, it is well settled that even the evidence of a single witness, if believed, would be sufficient to prove a fact. This is so because the evidence is to be weighed and not counted. See also s. 143 of the Evidence Act, 1967. It is also our firm view that if the defence honestly believed that those two people, who were not named by.[the appellant’s counsel] were very essential for a just decision of the case, it ought to have asked the prosecution to offer them for purposes of cross-examination or even call them as defence witness.. Consistent with this principle in this case, Elizabeth d/o Sebastiani who was listed at the preliminary hearing as the eleventh prosecution witness did not testify for the prosecution. She was instead summoned by the defence and testified as the second defence witness. In the instant the only extrajudicial statement listed during the preliminary hearing was that of the first accused. The extra-judicial statement of the second accused was not listed. But there is some reason to doubt if the second accused ever recorded an extra-judicial statement. The defence counsel in their joint written submission complained that the cautioned statement of the second accused was not corroborated by an extra-judicial statement because it had not been shown that he was taken to the Justice of the Peace. 34 I hold that the claim that the second accused recorded an extra-judicial statement before a Justice of the Peace in a Primary Court is unfounded. As I said in connection with the cautioned statement of the third accused, the repudiation and retraction at the defence stage is a belated attempt to escape criminal liability without any factual and legal justification. I now proceed to consider the truthfulness of the facts contained in the cautioned statement of the second accused. This cautioned statement is in the form of questions and answers. He narrated briefly about his family background, his level of education, arrival of the deceased on 13 November 2023 in the afternoon and his presence at the pool game with his two co-accused, the deceased going to buy items in a shop. He described the motor cycle to be red in colour but of Kinglion design. He mentioned the third accused as the one who first “liked” the motor cycle in the following words: Aidha baada ya kupaki hiyo pikipiki hapo ndipo huyo BURUANI s/o SAMADU aliposema ameielewa/ameipenda hiyo pikipiki... The second accused clarified what he would do so that they obtain that motor cycle and the response of the first accused: ...na mimi ndipo nikamwambia ngoja tutafanya dili tuichukua pikipiki hiyo. Wakati ninasema hivyo SEBASTIAN s/o? Alisema utaichukuaje mchana, Mimi nikasema sio Leo tutatafuta siku. The next statement is about the meeting of 15 November 2023 and information that the third accused had already found a customer to buy the motor cycle: 35 ... Ilipofika tarehe 15/11/2023 majira ya saa 13.00 hrs tulikutana tena hapo kwenye kijiwe cha poll table tukiwa wote ndipo BURUANI s/o SAMADU alisema kuwa baada ya kuipora pikipiki hiyo yeye mteja anae ambaye ni DANIEL s/o? @ DANI.. The second accused narrated how they hired the deceased on 16 November 2023: ... Ndipo ilipofika tarehe 16/11/2023 majira ya saa 19.00 hrs ndipo mimi BURUANI s/o SAMADU na SEBASTIAN s/o? Tulienda mpaka hapo stand-mpya Magugu na kumkuta Abdi s/o? akiwa amepaki hapo akisubiri abiria ndipo tulipo mkodi kwa kumwambia kuwa atupeleke huko kiwandani Manyara Sugar tukachukua MOLASIS. Baada ya kumwambia hiyo alikubali. The second accused clarified how they tricked the deceased to take them to Manyara Sugar, their journey and the tools they carried: ...tulimdanganya kuwa kuna pikipiki huko tunakwenda kuifuata kwani ilikuwa haina dereva. Baada ya kumdanganya na kukubali tulianza safari ya kwenda huko MANYARA SUGAR, tukiwa wote watatu, wakati huo mimi nilikuwa na sime kiunoni na BURUANI s/o SAMADU yeye alikuwa na Bisibisi. Tulipofika mpaka shell tukaweka mafuta, kwani Dereva wa Bodaboda ABDI S/o? alienda hapo shell na BURUANI s/o SAMADU, Mimi na SEBASTIANI tulisubiri njiani.Aliporudi kuweka mafuta tuliendelea na safari tulifika mpaka geti la Manyara-Sugar ndipo ABDI s/o? aliuliza mzigo upo wapi na ndipo tulipo mjibu kuwa mzigo huo umetolewa kiwandani kimagendo na umefichwa maeno ya FARM-SERVISE njia ya kuelekea Kijiji cha GICHAMEDA... Then the second accused narrated the spot where the deceased was attacked and how they attacked him: ...tulipofika Maeneo Ambayoyalikuwa na tope nyingi ndipo ABDI s/o? alipunguza Mwendo sana na hapo ndipo BURUANI s/o SAMADU alipotoa bisibisi na kumchoma nayo ABDI s/o? kwa mgongoni ndipo ABDI s/o? alisimama na kuzima pikipiki na kuanza kukimbia na ndipo alianzana 36 kukimbizana na BURUANI s/o SAMADU na ndipo alipopigwa mtama na kuanguka chini aliponyanyuka mimi nilikuwa nimefika hapo nikiwa na sime ndipo nilipomkata sehemu ya kichwani kwa nyuma na kuanguka chini alijaribu kukimbia lakini BURUANI s/o SAMADU alichukua sime kutoka kwangu na kumkata tena kichwani kwa mbele ya uso na kupelekea kuangua [kuanguka?]. The next statement relates to how they escaped from the crime scene: ...Baaada ya hapo ndipo tulipokata waya wa pikipiki kwani tulijaribu kutafuta funguo lakini hatukujua ABDI s/o? alipoitupa kwani tulimpekuwa mfukoni akiwa pale chini lakini hatujakuta ufunguo Mifukoni mwake. Ndipo ilipopelekea kukata waya wa switch na kuondoka na pikipiki hiyo mimi ndiye niliyekuwa ninaendesha pikipiki hiyo mpaka kijiji cha MASWARE. Hapo ndipo BURUANI s/o SAMADU aliichukua pikipiki hiyo na kuipeleka kwa DANIEL s/o? @ DANI na mimi na SEBASTIAN s/o? tulitembea kwa miguu tulifika sehemu tukapata lift ya mtu aliyekuwa anatoka Masware mpaka Matufa barabara kuu. He finally admitted that they knew that Abdi would not survive their attack: ...Ndio taarifa tulizipata siku ya tarehe 17/11/2023, kwani siku hiyo tulimshambulia kwani tulijua awezi kupona kabisa. It is clear to me that these are detailed facts pertaining to the planning and the eventual killing of the deceased. While some facts are common to all the accused persons, others are peculiarly within the knowledge of the second accused. The fact that the second accused had hidden the sime on his waist was his own secret. The learned defence counsel complained that the accused persons were denied the right to record the cautioned statements on their own. As I 37 understand the law, a cautioned statement can be recorded by either a police officer or a suspect. Unless there is evidence that the accused were unfairly prejudiced by not recording the statements on their own, this complaint will have no merit. The real complaint is that the cautioned statements recorded “at two different times” are dubiously similar and should be accorded no weight. I have had an opportunity to examine both cautioned statements and I have noticed some similarities and differences. In his cautioned statement, the third accused identified the motor cycle to be black in colour while the second accused said that it was in red colour. Both of them are however consistent to the fact that the deceased packed the motor cycle of a Kinglion design near the place where there is a pool game and went to buy items from a nearby shop. I find this difference to be a minor one. The third accused mentioned the second accused as the one who “liked” the motor cycle. The second accused recalls that it is the third accused who first “liked” the motor cycle. Yet both of them are agreed that the second accused promised to devise a plan for obtaining the motor cycle. There is another discrepancy regarding the sale of the motor cycle. The third accused stated that it is the second accused who agreed the price with the buyer, one Daniel Geofrey. The second accused stated that it is the third accused who made arrangements with Daniel Geofrey. 38 Facts pertaining to who among the accused persons first “liked” the motor cycle and arrangements for sale point to the motive for killing the deceased. While motive may be relevant under section 10 (1) of the Evidence Act [Cap 6 R.E 2022], the basic rule under section 10 (2) of the Penal Code [Cap. 16 RE 2022] is that motive for commission of an offence is irrelevant for the determination of criminal liability. So, in Amiri Mohamed v R [1994] TLR 134, the motive for killing was not discernible and the Court of Appeal held that “motive does not have to be established to bring the charge home” [at p. 143]. It follows that those inconsistent facts are after all irrelevant. Also different from the third accused account is the place where they hired the deceased. The second accused stated that about 7 evening on 16 November 2023 all of them went to the new bus-stand at Magugu and found the deceased there. They hired him to take them to Manyara Sugar. On the other hand, the third accused narrated that on 16 November 2023 at 7 pm the second accused came at the place where he supervised the pool game and told him that the plan is complete, the deceased is coming, and they were about to leave. The second accused reached the first accused by phone and he came. They then left. Notwithstanding this discrepancy both cautioned statements are consistent that all of them hired the deceased and travelled to a location that they killed the deceased. 39 From this analysis, I disagree with the defence complaint that the statements are too similar. As I have endeavoured to show, there are some differences but there is nothing alarming in them. Did the third accused person participate in the killing of the deceased? In response to an additional question from a police officer the third accused shifts the blame to the second accused for killing the deceased: ...SWALI: Kama lengo lenu ilikuwa ni pikipiki ni kwanini mlimua Abdi s/o? JIBU: Lengo letu halikuwa kumuua lakini KARIMU s/o ALEX ndiye aliyemuua, na mimi nilimkimbiza ABDI s/o? kwa ajili ya kuchomoa bisibisi yangu iliyobaki mgongoni baada ya kumchoma nayo... In this response and his previous statement reproduced earlier, the third accused does not deny stabbing the deceased with a screw driver. His only defence is that the deceased died as a result of being stabbed on the head with the second accused. Where several persons are accused of engaging in a criminal activity but their role in the criminal activity is unclear, the rules of common intention set forth under section 23 of the Penal Code come into operation. Section 23 provides that: When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission 40 was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. The practical operation of the rules of common intention under section 23 were delineated by the Court of Appeal in Shija Luyeko v R [2004] TLR 254 at pages 262-263: In order to bring the appellant within this section, the following facts must have been proved: 1. That two or more persons, of whom the appellant was one, each formed an intention to prosecute a common purpose in conjunction with the other or others; 2. That the common purpose was unlawful; 3. That the parties, or some of them, including the appellant, commenced or joined in the prosecution of the common purpose; 4. That, in the course of prosecuting the common purpose, one or more of the participants murdered the deceased; 5. That the commission of the murder was probable consequence. In the instant case, there is no doubt that the second and third accused separately confessed a joint plan to use force to obtain the motor cycle from the deceased. The mastermind behind the plan was the second accused person who assured his co-accused that they would hatch a deal to obtain the motor cycle. He was the one who informed them when the time was ripe for hiring the deceased’s motor cycle. The second accused participated in the meetings arranged to obtain the deceased’s motor cycle. 41 There is no doubt that the deceased was killed in execution of the common purpose to obtain the motor cycle. The second accused confessed taking part in the killing of the deceased together with the third accused, and in the presence of the first accused. The next question for consideration is the role of the third and second accused in the killing of the deceased. The second and third accused separately confessed that they were armed with the weapons at the time they hired the deceased’s motor cycle. The second accused stated that he was armed with the sime and the third accused was armed with the screw driver when they commenced their journey towards Manyara Sugar. The third accused confessed stabbing the deceased with the screw driver. These statements establish that the accused persons set out to attack the deceased and rob him his motor cycle on the way to Manyara Sugar. By arming themselves with items capable of causing grievous harm, both accused persons had knowledge that they could grievously harm the deceased whether or not death resulted in terms of section 200 (b) of the Penal Code. The deceased was first stabbed by the third accused. When they reached a direction toward Gichameda, the third accused who sat nearest to the deceased stabbed him with the screw driver. The deceased lost control of the motor cycle and they fell down. The deceased stood up and ran away towards 42 the maize farm. The third and second accused persons ran after him, caught up with him and fell him down. Both accused persons are agreed in their confessions that the second accused stabbed the deceased on the head with the sime. There is disagreement about what happened after the deceased had been stabbed. The second accused stated that the third accused seized his sime and stabbed the deceased on the face and he fell down. As already mentioned, the third accused stated he ran after the deceased in order to pull out his screw driver and not to kill the deceased. He said that that their intention was not to kill the deceased but it is the second accused who stabbed the deceased to death. One of the established principles of common intention is that where several persons armed with weapons to rob a person and one or some of them use a weapon in furtherance of their common intention and kill, all of them are guilty of murder. This principle was summed up in R v Omari s/o Kindamba and Another (1942) 9 EACA 77: ..where two or more persons set out armed with lethal weapons with the common intention of stealing, and one of them, in order to fulfil their purpose, kills the custodian of the goods, all are liable to be convicted of murder. In Richard Otieno Ndege v R, Criminal Appeal 193 of 1991, a group of bandits broke into a house with the intention of stealing. In prosecution of their criminal activity, one of the bandits fatally shot the owner of the house with a gun in the 43 chest who died instantly. After investigation, Richard Otieno Ndege was arrested, charged with and convicted of murder. On appeal to the Court of Appeal it was held that there was sufficient evidence of identification showing that he was one of the robbers in the house of the deceased on the material night. Although Richard did not fire the bullet that killed the deceased, he was found liable for murder under the doctrine of common intention and by being a principal offender in aiding and abetting under section 22 of the Penal Code. It is clear that the deceased was stabbed in order to rob him the motor cycle further forms part of constructive malice under section 200 (c) of the Penal Code. One of the circumstances in which constructive malice arises at common law is where the accused killed in the course of committing another offence. In its modern sense it applies to cases in which the felony involved the use or threat of violence against the person. Smith, JC and Hogan, B in Criminal Law, 3rd edn, London: Butterworths, 1973 gave the following examples of the first form of constructive malice at common law: ...Where a man caused death in the course or furtherance of committing a felony, that was murder; and the only intention that need be proved was the mens rea of the felony. Thus accidentally to kill while attempting to steal, or while procuring an abortion, or while committing rape was automatically murder. It was necessary to prove only an intention to steal, to procure an abortion, or to rape as the case may be. There was no need to prove foresight of death or grievous bodily harm or even that a reasonable man would have foreseen death or grievous bodily harm.. 44 In DPP v Beard [1920] A.C. 479, the accused who was somehow drunk raped a girl aged thirteen years old. In order to overcome her resistance, the accused covered her mouth with his hand to stifle her screaming. In doing so he pressed his thumb on her throat, and as a result, she died of suffocation. The defendant unsuccessfully raised the defence of intoxication and was convicted of murder. On appeal to the Court of Criminal Appeal, the verdict of manslaughter was substituted. The DPP appealed to the House of Lords which restored the conviction for murder. Lord Birkenhead L.C., at p .507 observed: There was no evidence that he was too drunk to form the -intent of committing rape. Under these circumstances, it was proved that death was caused by an act of violence done in furtherance of the felony of rape. Such killing is by the law of England, murder In R v Vickers [1957] 2 All ER 741, the accused broke into a shop in order to steal but its occupant, an elderly woman of seventy-two years saw him and asked what he was doing. The accused attacked him with his fists, struck her with many blows and kicked her in the face. She died as a result of those injuries. He was charged with and convicted of murder. The Court of Appeal sustained his conviction on the principle of implied malice retained by the provisions of the Homicide Act, 1957, at p .742: It will be observed that s 1 preserves the implied malice as well as express malice and the words “where a person kills another in the course or furtherance of some other offence” cannot in our opinion refer to the infliction of the grievous bodily harm, if the case which is made against the prisoner is that he killed a person by having assaulted the person with intent to do 45 grievous bodily harm and from the bodily harm which he inflicted that person dies. The furtherance of some other offence must refer to the offence that he was committing or endeavouring to commit other than the killing, otherwise there would be no sense in it. It was always the English law that if death were caused by a person in the course of committing a felony involving violence, that was murder. Therefore, in this particular case it is perfectly clear that the words “where a person kills another in the course or furtherance of some other offence” must be attributed to the burglary which the appellant was committing. The killing was in the course or furtherance of that burglary. He killed that person in the course of the burglary because he realised that the victim recognised him and he therefore inflicted grievous bodily harm on her, perhaps only intending to render her unconscious, but he did intend to inflict grievous bodily harm by the blows he inflicted on her and by kicking her in the face, of which there was evidence. There are two types of constructive malice under subsections 200 (c) and (d) of Tanzania Penal Code [Cap16 RE 2022] which provides that: Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- (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 flight or escape from custody of any person who has committed or attempted to commit an offence. As originally enacted section 200 (c) provided “an intent to commit a felony.” This section was later re-enacted after the disappearance of distinction between felony and misdemeanor in English law by lifting part of the definition of 46 “felony” in the 1930 Penal Code. The Penal Code of 1930 partly defined a felony to include an offence whose sentence of imprisonment was for three years or more. In Fadhili Gumbo alias Malota and Three others v R [2006] TLR 50, the victim was killed in the course of committing a robbery and the accused were charged with and convicted of murder. The Court of Appeal dismissed their appeal and held that: ...A look at the evidence in its entirety will show that the murder in question was committed in the course of committing a felony...In this regard, the law is clear that a person who uses violent measures in the commission of a felony involving personal violence does so at his/her own risk and is guilty of murder if these violent measures result in the death of the victim. In other words, if death is caused by an unlawful act in the furtherance of an intention to commit an offence malice aforethought is deemed to be established in terms of sect on 200(c) of the Penal Code, Chapter 16. In Manazo Mandundu and another v R [1990] TLR 92, a watchman of a shop was killed and the appellants were found in possession of the stolen items. The Court of Appeal upheld the conviction having formed the view that “this is a fit case for invoking the doctrine of recent possession to support not only the shop breaking and theft but also the murder’ I turn to consider the position of the first accused person, Sebastian s/o Athumani. In both cautioned statements, the two accused persons state that the first accused person was present throughout the planning and travelled with them to a location where they killed the deceased. Both accused persons are 47 clear that they are the ones who attacked the deceased while the first accused remained in the motor cycle watching. The second accused said in Kiswahili: ...Wakati huo SEBASTIAN s/o? yeye alikuwa pembeni anaangalia na alikuwa pale ilipo pikipiki. The third accused person said that after the second accused had stabbed the deceased’s head with the sime, he fell down and they returned: ... kwenye pikipiki alipokuwa SEBASTIANI s/o ATHUMANI.... These facts tend to show the role of the first accused person in the killing of the deceased. Although the first accused did not directly stab the deceased and the question is whether he fully dissociated himself from the actions of the second and third accused person. The facts giving to consideration whether the first accused fully dissociated from the killing of the deceased arise from confessions of his co-accused. Under section 33 (1) of the Evidence Act [Cap. 6 R.E. 2022], a confession of one accused person is admissible against another accused person with whom they have been jointly charged. Nevertheless, under section 33 (2) a co-accused confession must be corroborated in order to ground conviction. The statutory requirement that a co-accused confession must be corroborated has been emphasized in numerous decisions of the Court of Appeal such as Lubeleje Mavina and Another v R, Criminal Appeal 172 of 2006, Joseph Kenneth 48 Ngole and Three Others v R, Criminal Appeals 99, 100, 101, 102 of 1999Error! Bookmark not defined.; Tumaini Moleli alias John Walker and Others v R, Criminal Appeal 40 of 1999. Having examined the prosecution and defence case, there is no corroborative evidence on the very suspicious circumstances surrounding the first accused person. As there is no corroborative evidence of the confessions of the second and third accused persons, the charge against the first accused person, Sebastian s/o Athumani has not been proved beyond reasonable doubt and I hold that he is not guilty of murder. He is accordingly acquitted and it is ordered that he be released from custody unless he is otherwise detained on some other lawful cause. I hold that the charge against the first accused person, Sebastian s/o Athumani has not been proved beyond reasonable doubt and that he is not guilty of murder or any other offence. I dismiss the charge of murder against and acquit him. With regard to the second accused, Karim s/o Alex Shabani; and the third accused Burhani s/o Samadu Ramadhani, I find each of them guilty and convict each of them of murder contrary to sections 196 and 197 of the Penal Code [Cap 16 RE 2022]. DATED at BABATI this 23rd October 2024 49 F.M. MIRINDO JUDGE Court: Judgement delivered in open court this 1st November 2024 in the presence of Ms. Anifa Ally, State Attorney for the Republic, the accused persons, and their defence counsel, Mr. Kuwengwa Ndonjekwa and Mr. Festo Jackson and in the presence of Ms. Jackline Goodluck, social welfare officer and in the presence of the first accused mother, Ms. Elizabeth d/o Sebastiani. B/C. Ms. Anna Mathayo (RMA) present. F.M. MIRINDO JUDGE Ms. Ally, State Attorney: We have nothing to add. The accused persons should be sentenced according to 197 of the Penal Code [Cap. 16 R.E. 2022]. Life of a person has been lost. They should be punished accordingly. 50 F.M. MIRINDO JUDGE 1/11/2024 Advocate Ndonjekwa: We have nothing to add. The offence suggests that there is no mitigation. F.M. MIRINDO JUDGE Advocate Jackson: I have nothing to add. F.M. MIRINDO JUDGE SENTENCE: Section 197 of the Penal Code [Cap. 16 R.E. 2022] imposes a mandatory sentence of death for murder and in compliance with the provisions of either 51 section 26 (1) of the Penal Code or section 322 (2) of the Criminal Procedure Act [Cap. 20 R.E.2022] the convict shall suffer death by hanging. Accordingly, the second accused, Karim s/o Alex Shabani; and the third accused, Burhani s/o Samadu Ramadhani, who have been convicted of murder, are each sentenced to suffer death by hanging. It is so ordered. Right of appeal explained. F.M. MIRINDO JUDGE 1/11/2024 52