CRIMINAL SESSIONS CASE STEVEN RANGE MARWA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL SESSIONS CASE NO. 12127 OF 2024 REFERENCE NUMBER 202405082000012127 REPUBLIC VERSUS 1. STEVEN S/O RANGE @ MARWA 2. NGOCHO S/O CHACHA @ NYABALISERE 3. MASOYA S/O MOHAMED JUDGEMENT 17* October & Otfh November, 2024 M. L. KO MBA, J, It is alleged that right to life of NICKSON GISIRRI @GHATI was infringed and terminated brutally on 21st Day of May 2023 at Nyakanga village in Butiama District in Mara Region. According to Exhibit Pl his body had wounds at occipital area with intact skull and at left side of the chest. Prosecution held above named accused responsible for the murder of Nickson Gisirri, the deceased. When the charged was leveled against the accused persons, they all denied to commit the offence hence the matter went to a full trial. Page 1 of 32 During hearing of the case, prosecution team (Republic) was led by Mr. Tawab Yahya Issa, Senior State Attorney assisted by Ms. Agma Haule and Mr. Michael Kayombo, State Attorneys. On the other side the first accused was represented by Mr. Wambura Kisika, the second accused had a legal service of Godwill Mweya and the third accused enjoyed the service of Mr. Daudi Mahemba, all learned advocates. It was Felisian Mzerani Mwakitalu, (PW1) who started to make the case. In 2023 he was OC-CID at Butiama District. He informed this court that the night of 21/5/2023 around 02:00 hours he received a phone call from citizen that there was a bullet sound at the house of Nickson Gisirri in Nyakanga village. When he reached at the said house, he was informed by public gathered outside that in the house there was a person shot by gun. They entered and found a person on floor while bleeding from the head and ribs. They took the body to Butiama Hospital Mortuary and opened murder file and investigation began. When cross examined by Mr. Mweya, he elaborated that while at the scene nobody said he/she saw a person committed the crime, and the wife of Nickson was injured by the same persons. While responding questions from Mr. Mahemba he said he never met with the citizen who informed police Page 2 of 32 neither interrogate that person concerning the incident. About environment at the scene, he said they found the door of the house was removed from its normal position. The body of Nickson Gisirri was examined by Matilda Pascal Joseph who appeared in court as PW2. She testified that on 24/5/2023 she was assigned to examine the body which was identified by police and other relatives. In her examination she found the body with wounds on head, right side and left side of the chest. About the appearance of wounds, she said the wound on head was caused by a sharp object but the skull was intact while the wound on the right side of his chest was round with deep penetration. All wounds had clotted blood that means the deceased was bleeding. She informed this court that her analysis suggests cause of death was due to over bleeding from the wounds. This witness tendered post mortem report which was admitted as exhibit Pl. In cross examination she clarified that she had no tape measure she just estimated the measurements and she used eyes to determine type of wound that was caused by sharp object. She elaborated that she knows he lost blood by appearance the body was pale. Page 3 of32 Another prosecution witness was Vicent Kulwa Nikson (PW3), a son of Nickson Gisirri, the deceased. While in witness box he informed this court that the night of 21/5/2022 around 02:00 hours he heard and alarm (yowe) when he wakes up, he noted some people who were outside wanted to enter inside their house, this witness, his father and mother were pushing the door from inside so that it cannot open. Those people who were outside started to break the door and had a chance and fired. The bullet hit his father who was inside. From that attack they both PW3 and his father run to PW3 room which was near to the sitting room. As they leave the door, those attackers entered in a house and three of them entered into the room where PW3 and his father was. One had gun and the rest had iron bar and claimed for money from his father, they were claiming for TZS. 15,000,000/ (fifteen million). He went on testifying that one attacker whom he saw clear had pistol, iron bar and machete. He put pistol in his pocket and hold machete and iron bar. His father was beaten when he said he don't have money. Following the said torture, Nikson fell down from where he was sitting. The attackers turn to PW3 and asked for money which he don't have. He said he was a student so he doesn't have money. Following that answer, PW3 was Page 4 of 32 ordered to go down. When attackers wanted to use his machete on PW3 he was called by another person from the sitting that he found money and he left the room went to sitting room where he heard his siblings crying. Witness said those people did not cover their faces so he managed to saw them. When attackers left, he said he went to neighbours to call for help whom they called police and raised an alarm. People responded to alarm and police showed up. Police took measurements of the area and took Nikson Gisirri's body. On 10/06/2023 he was called and appeared to Musoma Police Central for identification of accused who were arrested. He said, police paraded ten people and he pointed three people whom he saw them at their home but in court there were two whose he managed to remember. He signed a paper after he identified the accused. When cross examined, he clarified that he and his father started to enter in his room before the attackers. The light at the sitting room was on but he doesn't know who put it on as he found his father and mother in sitting room. He acknowledges he did not explain an attire of those attackers Page 5 of 32 while in examination in chief but he insisted he saw three of them and one had no thumb. All three had machete in their hands. When further cross examined, he insisted that his father run to his room and after the attackers left, things were scattered in the house and television and mobile phones were stolen. Witness insisted that police found his father in his room. He said he record his statement while at home he only went to police for identification parade. He insisted his room had minimum light but sitting room lights was on. G. 2511 D/Cpl Wilson appeared as PW4 and testified that on 21/5/2023 around 02:00 hours he went to Nyakanga village where there was a crime. He was assigned to draw sketch map and managed to draw rough sketch map but in the following day he went to the scene and draw sketch map while assisted by Visent Kulwa Nikson. The sketch map was admitted as exhibit P2. When cross examined about the environment of the house, he informed this court that he found the door was completely removed. He went on clarified that the body of deceased was in his room (Nickson room) and that night he draws a rough sketch map by using phone's flash light as Page 6 of 32 there was no light. He did not locate the bullet shell in his map he only observed what he located in the map. PW5 was J 10 D/Cpl Kimweri Omari Mdoe who was assigned to take exhibits to forensic bureau at ballistic investigation department in Dar es salaam. It was pistol make browning A 748055 registered TZCAR 94986 from Musoma Police Central and a bullet shell from Butiama Police. On 17/8/2023 he arrived at Dar es salaam forensic bureau and handle exhibits to Paulo Mgema. When Mgema was done this witness was given pistol and three bullet shells (labeled in envelop) and a letter to OC-CID Mara. He said he handled exhibits to exhibit keeper and a letter to OC-CID. The three bullet shells were admitted as exhibit P3 and a pistol make browning A 748055 black in color with label BUT/IR/427/2023 was admitted as exhibit P4. When cross examined, he confessed he don't know the owner of the said pistol but what he knows is that it was made from Republic of Czech. When he took exhibit and return it, he signed but did not tender a chain of custody of the said pistol nor bullet shell although he insisted that he signed dispatch on every office. He further confessed that he had no Page 7 of 32 written order to collect pistol from exhibit keeper when taken to forensic bureau. Ballistic expert testified as PW6, ASP Paulo Metusela Mgema. He was assigned to check if the pistol was working properly and to determine if the bullet shell was fired from that pistol, the said pistol and bullet shell was received from PW5. He went on explaining that he labeled the pistol with lab identification number Lab registration FB/BALL/LAB/137/2023 and IR BUT/IR/427/2023 and the bullet shell was labeled FB/BALL/137/2023 and BUT/IR/427/2023. By physical examination he said he noted that pistol was browning make with serial number A748055 and TZCAR 94986 caliber 7.6 mm black in color without magazine. Another exhibit was bullet shell with caliber 7.6 mm. He went on with examination by checking if pistol is working by inserting two bullets from store and fired. The pistol responded and noted that it works properly. From the test he said he make two bullet shells which was labeled T1 and T2. He went on explain that if pistol does not have magazine does not mean that it is not working its only cannot carry more bullets. So far as the pistol browning make with serial number A748055 manage to fire, he makes a comparison of three bullet shells (one labeled QI from Mara and the other Page 8 of 32 two which he produced while testing). By using comparison microscope, he said all signs in T1 and T2 resembled bullet shell QI, that resemblance, he said, proves that one bullet shell caliber 7.6 mm marked QI was fired by a pistol make pistol browning with serial number A748055 TZCAR 94986 caliber 7.6 mm. Witness insisted that pin impression, extractor mark and breech face characteristics differ from one pistol to another. On 23/8/2023 he prepared a report on his findings which was admitted without objection as exhibit P5. When cross examined, he elaborated that he only examined the Exhibit P4 on its working capacity, he identified it by serial number. He elaborated that if pistol does not have magazine bullets are loaded manually. From his examination he said he cannot trace the date pistol was used to fire and he don't know the owner neither the year when it was registered in Tanzania. Another prosecution witness was PF22909 Ass Insp Ridhiwan (PW7) who conducted identification parade. He informed this court that parade was conducted in open area and he found participants already in line. In his presence two accused were brought and selected position to stand on line. Then witness was brought at the parade, after introduction and informed Page 9 of 32 of the condition of identification parade, he pass on the parade and identify two accused the 1st accused and 3rd accused herein. PW7 went on testifying that he asked witness how he manage to point accused was informed that 1st accused had no thumb and the 3rd accused had mark on his face. Witness prepared PF 186 and signed by witness and accused that they were pointed at the parade. PF 186 was admitted without objection as exhibit P6. During cross examination he clarified witness who identified two accused on parade was Visent Ngisiri (PW3) who before identification he requested all participants to raise their hands and he touched shoulders of two participants. He clarified that apart from thumb mark, witness identified accused by their face and eyes although he accepted that among the participants of the parade, there was only one person without one thumb. PW8 was H. 492 D/Cpl Bazil from Police Butiama. He informed this court that he escorted PW3 to identification parade. PW9 was G. 3785 D/Sgt John who testified that in May 2023 he was police supervising Kigera ward. In that ward he had a duty of creating awareness on crime and sensitization of citizen on crime reporting. Through those Page 10 of 32 activities on 30/5/2024 this witness received a phone call from Idd Salum who informed this witness that he bought a handset make Tecno with buttons and a torch but he was not comfortable with it. Idd was ordered to give the phone to PW9 who then gave it to F. 6665 D/Sgt Hamis who was a member of crime task force which was in operation in Musoma Region. Through investigation and available record, PW9 informed this court that D/Sgt Hamis noted that the phone was lost in crime scene and Idd Salum was connected and handled to F. 6665 D/Sgt Hamis. When cross examined, he clarified that he managed to seize many phones and many people were convicted in connection with seized mobile phones and clarified further that accused committed series of crime before the phone was seized by police when surrendered by Idd Salum. When further cross examined, he said Idd bought that mobile phone at TZS 10,000/= from Bhoke who stays in Mwikabe area. F. 6665 D/Sgt Hamis testified as PW10 and informed this court that in the years 2023 there was a wave of criminality and the task force was formed from Dar ed salaam, Mwanza, Musoma and Tarime Rorya. He was a team leader of Musoma group. He testified that on 30/5/2023 he was informed that one citizen surrendered a mobile phone, make Tecno with IMEI no. Page 11 of 32 358410820652320. When further read their record, he said that phone was among lost item in crime which took place in Tarime. When confronted Idd, witness said was informed Idd bought that mobile phone but the targeted buyer was Ashura Bwire. When they reached Ashura Bwire, she said she received it from Bhoke who was given by her lover, Issack. When Issack was traced, he was arrested on 01/6/2023 and he mentioned four other people whom are committing crime together (Jackson Magwega, Steven Range, Ngocho Chacha and Masoya Mohamed). This witness continued that they wanted to arrest the rest four. On 02/6/2024 police managed to arrest Ngocho Chacha and Steven Range while on road and continue to look for Masoya Mohamed and Jackson Magwega. On 04/6/2023 through assistance of Ashura Masoya, Mohamed was arrested in a motorcycle while on road to saanane area. When interrogated, Issack and Masoya Mohamed they said Jackson had pistol and, he informed this court that police were in need of that pistol. They started to make a follow up of Jackson in different parts of Musoma in vain and at the end, witness said he informed Masoya that when Jackson was going to Tarime he left some parcel to him, that parcel was needed. Masoya denied to have parcel but later he agreed to have it and said to the Page 12 of 32 place he hidden it in the hole outside his house. That was evening around 19:00 hours. They planned to go and search. He prepared some witnesses from the ward including police responsible for Rwamlimi ward, Ward executive officer and Street chairman. He went on testifying that when they approached the area they met with Police, WEO, Street chairman and some citizen. It was PW10 who dig the hole and found plastic bag with pistol in it. After examination he noted pistol had no magazine but it had number A748055. He said they searched a house of Masoya with intention of looking for magazine they end up find a big knife (sime) with blood stains. They seized pistol and sime and exhibit P7 was prepared and admitted though was objected. Witness also identified exhibit P4. When cross examined, he explained that phone which led to get accused persons is owned Rashid Odonga (0786029291) but he doesn't know who owned that phone when was new. He confirmed that he did not interrogate Idd Salum who surrendered Tecno phone and cause accused to be arrested. He did not witness the contract for sale of the said Tecno mobile phone while insisted Idd Salum bought the techno mobile phone. When arrested Issack was searched and found with two mobile phones, Page 13 of 32 Masoya was searched but Range and Ngocho were not searched. He explained that Masoya was searched by OC-CID and PW10 was witness. When further cross examined, he informed this court that Tecno mobile phone which was surrender and IMEI number mentioned in this court has no connection with the murder of Nikson Gisirri. He doesn't know if it can be traced from the pistol the last date it was used and he is not aware if on 21/5/2023 pistol was used. He doesn't know the owner of the pistol which was recovered from the hole. What he knows is that accused are prisoners although he said he don't know if they committed the said crime while in prison. PW11 was Nyamonge Richard Nyamonge, a citizen of Rwamlimi ward and a business man at Rwamlimi center. He testified that he joined street chairman and WEO who was waiting for OC-CID to visit locus in quo. When OC-CID pass at his street he joined chairman and went to the house of Masoya and witnessed how pistol, exhibit P4 was recovered and the witnessed search and seizure of sime. He informed this court that he signed exhibit P7 and recognized exhibit P4 while in court. Page 14 of 32 In cross examination he said he went to the house of Masoya as a citizen, he did not know a police he only know street chairman and WEO whom they were together. He clarified that exhibit P7 was signed at the house of the accused Masoya and managed to identify names of other people who sign Exhibit P7. He explained that Pistol was found outside the house but simewas in Masola's room. H. 83 D/ Cpi Onesmo appeared as PW12 and informed this court that he was among police who went to the scene the night of 21/05/2023, Nyakanga village to the house of Gisirri. He testified that he was ordered to look for exhibits because they were informed that the gun was used. He said other police was directed to draw a sketch map. He managed to find the bullet shell outside the house like 5 meters from the door and was handled to OC- CID was at the scene. Witness tendered certificate of seizure which was admitted as exhibit P8. He further informed this court that he was investigator of the crime, he studied the file BUT/IR/427/2023 and noted PW3 managed to saw accused by face while at the scene. He said on 06/6/2023 he was informed by PW10 that they have arrested many accused. He communicated with the wife of Gisirri that he was in need of PW3 who was in Mwanza. On Page 15 of 32 09/06/2023 he advised wife of Gisirri and PW3 (mother and son) to go to OC-CID. In cross examination he informed this court that he did not participate in identification parade he was just informed that accused were arrested and identified. He did not even participate when Masoya was searched. He further clarified that when he went to the scene, he was with PW4 who was assigned to draw map. It was night but the village has TANESCO electricity. Witness maintained that there was light outside and inside the house of deceased Gisirri. When he was squeezed, he said it was one solar light which was outside the house. However, he confirmed they used torch to look for exhibits outside the house. When asked about PW4 he testified that while drawing map he used solar light. When further cross examined, he confirmed to be with OC-CID Mwakitalu at the scene who was given bullet shell the same night, seizure was witnessed by two people who confirmed bullet shell was at their home. Upon this court ruled that accused persons has a case to answer, all accused entered their defence under oath. DW1 was Ngocho Chacha Nyabalisere (2nd accused) he informed this court that he was arrested on 03/6/2023 at 13:00 Hours, he was covered his eyes and when he gains vision, he Page 16 of 32 discovered he was at Mwesenge police post which is within Musoma Municipality. From that date he spends time in various places while tortured by police till 07/06/2023 when he was taken to Musoma central police then Butiama police station and on 14/06/2023 he was taken to Butiama District Court together with 3rd accused herein. About the present charge, he said he was first appeared in court in September 2023 with other people whom he doesn't know. He prays this court to find him innocent. When cross examined, he insisted he found 1st accused in prison. Masoya Mohamed testified as DW2 (3rd accused) and testified that he was arrested on 04/6/2023 and taken to Musoma Central Police, on that day he was not searched. He went on saying that on 05/6/2023 he was forced to sign a document which he could not read as he is illiteracy. Then he was taken to court and charged with the offence of murdering Nickson on 21/05/2023. He gave general denial of everything. He testified that on that night he was at his home and he was not in the scene of crime, he did not participate in parade nor sign Exhibit P6. When cross examined, he clarified that he doesn't know 1st and 2nd accused he just found them in district court. He was arrested when police were in patrol. Page 17 of 32 1st accused appeared as DW3 and informed this court that he was arrested on 06/6/2023 while at Bweri bus stand (Musoma Main Bus stand) while arriving from Tarime. He brought banana from Tarime. He went on testifying that what was testified by Vicent is not true. He had some sessions with police in front of citizens including PW3 before identification parade was conducted. He clarified that 2nd accused joined this case when he was done with another case in Butiama District Court, he actually met him in Butiama District court. When cross examined, he clarified that there were persons who saw him before identification parade including PW3 he saw him prior to parade and was only person without thumb. He further confessed to had a criminal case (armed robbery) at Butiama District Court and weapon used in that case was machete. After having heard the witnesses in this case and reading exhibits, I do not doubt that Nickson Gisirri is dead. As was testified by PW1, PW2 and PW3 and reviled in Exhibit Pl the death of Nickson was an unnatural. The only issue for determination is who caused the deceased's death. Prosecution testimony in this case suggested there is an eye witness who Page 18 of 32 saw accused at the scene. From charge sheet, the murder occurred on 21/05/2023 and from testimony, the same took place around 02:00 hours. Legitimately, it is the prosecution who are placed with a higher responsibility than that of the accused in a proof of criminal charge. The first long-established principle in criminal justice is that on onus of proof in criminal cases, that the accused committed the offence for which he is charged with is always on the side of the prosecution and not on the accused person. It is reflected under Section 110 and Section 112 of the Evidence Act Cap.6 [R.E 2022], and cemented by several cases including the case of Joseph John Makune vs Republic [1986] TLR 44 where the Court of Appeal held that:- 'The cardinal principle of our criminal law is that die burden is on die prosecution to prove its case; no duty is cast on the accused to prove his innocence. There are a few well-known exceptions to this principle, one example being where the accused raises die defence of insanity in which case he must prove it on the balance of probabilities...' In determining the fate of the three accused persons before this court, the prosecution must prove beyond reasonable doubt that, indeed, the accused Page 19 of 32 persons, with malice aforethought killed the deceased person contrary to sections 196 of the Penal Code, Cap 16 [R. E. 2022]. As seen from the evidence adduced and summarized in above pages, the prosecution relies on PW3's testimony who is an eyewitness who has identified the accused persons during the commission of the crime. Apart from PW3's evidence, the prosecution also relies on exhibits which were collected in connection with the scene and the crime as a whole. In analysing these two key aspects in scenario at hand, I will also consider the evidence of both parties adduced before the court. In the first aspect of identification, PW3 who is the only eye witness, testified to have witnessed the accused persons killing the deceased person, while they were at the door, he said he hear a bullet sound and his father was injured. Following that sound they leave the door and both (deceased and PW3) run in the room of PW3. He went on testifying that attackers entered in the house and follow PW3 in his room where he was with his father while wounded on ribs. He witnessed attackers assaulting his father while confusingly bleeding. He was also assaulted when attackers claim for TZS 15,000,000/. He saw three people who entered in Page 20 of 32 his room, one had no thumb. Was the identification proper? Let me analyse further the prosecution evidence. In order for a person to see properly there must be light. Incident took place at night. PW3 testified there was a light in the sitting room, solar light. About light status in his room, he testified there was minimum light which usually is set for sleeping purposes. When cross examined about the light, he said the house had no ceiling board so light from sitting room brighten his room. He was not familiar to attackers but he saw them in his room, in a minimum light. All had machete and one person had pistol machete and iron bar. Further about the light, PW4 informed this court that he was with PW1 and at the scene he was assigned to draw sketch map. That night, he said he draws rough map and completed in the morning because there was no light. PW12 (investigator) went at the scene while was accompanied with PW1 and PW4. When PW12 was cross examined about the light at the scene, he informed this court that there was one solar light outside the house but he used torch while performing his duties and he had nothing to ; inform this court about light inside the house. He was not ready to elaborate. It has to be remembered this is investigator of crime. He used Page 21 of 32 torch to look for exhibits at night and denied this court to know status of light inside the house where crime took place. While cerebrating the case of Waziri Amani vs Republic, [1980] TLR 250 the Court had this to say; 'The evidence of visual identification is of the weakest and most unreliable. It follows, therefore, that no courts should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is watertight1 There is a warning to courts before relaying on visual identification because it is the weakest evidence. There is a list of conditions to be met before I conclude that witness actually saw the attackers, one of the conditions is light. Whether the witness manage to saw properly and what was the source and capacity of light. So far as PW3 confirm his room had medium light which is used during sleeping time and PW4 testified there was no light, and the fact that accused were observed while in the room, am settled that there was no enough light inside the house of Nickson and specifically there was no bright light in the room where Nikson was assaulted in the presence of PW3. As I have ruled that there was no light at the house of Nikson, I find Page 22 of 32 irrelevant to analyse other conditions on identification like the time PW3 spend while observing attackers as he could not see, leave alone the issue of distance from him to attackers, time spend while in observation and impediment. In a nutshell, the room had five people in total, PW3, Nickson and three attackers, it is only possible to determine impendent if the size of the room is known. However, PW3 testified that he was ordered to go down. Prosecution denied this court right to know the size of the room where crime occurred. Guidance of the Court of Appeal in Chacha Jeremiah Murimi & Others vs Republic (Criminal Appeal 551 of 2015) [2019] TZCA 52 (4 April 2019) is that, a witness who said he saw attackers has to immediately inform other people. PW3 who said he saw attackers in their house, specifically in his room he said he inform his mother and young sister. All these persons were not paraded as witness besides, mother of PW3 was reported by PW1 to be injured and was in bad condition. She was unable to speak. That means she could not understand if at all was told and she failed to communicate that information because as per Chacha Jeremiah Murimi & Others vs Republic guidance, witness who were told that somebody saw attackers, has to convey that information to other people. Read page Page 23 of 32 19 of the decision. That being not enough, the same night PW1 went with police at the scene and1 none of police who went at the scene were told by PW3 that he saw attackers. To make it clear, PW1 who was OC-CID in Butiama District testified that nobody informed police that, that night they saw attackers. Apart from an eye witness, it was prosecution evidence that Nickson had a circular penetrating wound at the right side of chest and one bullet shell was found outside his house. That is according to Exhibit Pl and Exhibit P2. It was the testimony of PW12 that he found bullet shell outside the house of Nickson though exhibit P2 did not show the place bullet shell was. When asked about the location of the bullet shell, PW4 the drawer of Exhibit P2 informed this court that he records what he observed at the scene. PW1 was at the scene, he observed Nickson was dead and was taken to mortuary and his wife was injured, was in bad condition, they took her to hospital. As OC-CID of that District, he testified nothing about the bullet shell although PW12 testified that when he saw that shell he handled it to PW1. A person who was informed of that important thing was supposed to testify on that whether he was given or he saw it at the scene. I discovered Page 24 of 32 two things which was not answered by prosecution in my analysis; first, who picked bullet shell from the scene and at what time, second; where was it kept before was taken to Forensic Bureau. I find no answer from prosecution evidence. That being not enough, I find difficulties to understand prosecution case in the following areas; One, PW12 explained by word of mouth that when he picked bullet shell that night, he handled it to OC-CID (PW1). PW5 informed this court that he took one bullet shell from exhibit keeper, G. 2670 PC Ramadhani while going to Forensic Bureau. It was not established if the bullet which was seized at the scene on 21/05/2024 is the same which was examined at Forensic Bureau. No chain of custody was explained neither tendered to prove how the bullet shell was handled from the scene to when it was examined. That creates doubts on whether there was a bullet shell at the scene and whether the shell picked at the scene is the same which was examined by PW6. The importance of stablishing and keeping chain of custody was emphasized by Court of Appeal in famous case of Paul Maduka & Others vs Republic, Criminal Appeal No. 110 of 2007 that chain of custody must be intact in order to establish that the alleged Page 25 of 32 evidence is in fact related to the alleged crime rather than, for instance having planted fraudulently to make someone appear guilty. Two, Exhibit P8 show it was signed by Miriam, who, according to PW1, was in bad condition and unable to speak. The question is, how did she manage to sign exhibit P8 while PW12 informed this court that signing means proving that she saw bullet shell was picked form their house. Whom this court should believe is it PW1 who testified Wife of Nickson was injured, was in bad condition and unable to speak or PW12 who testified that Miriam saw him while pick the bullet shell and signed exhibit P8. Three, PW3 testified that he was in his room together with his father when attackers assault his father. PW4 who prepared sketch map while assisted by the same PW3 informed this court that Nickson was found in his (Nikson) room which he usually sleeps and was assaulted while in his room. Further, PW3 testified that while attackers were in his room assaulting his father, he PW3 was sitting on bed. However, Exhibit P2 show that when Nickson was attacked PW3 was standing. These might be seeming minor issues but when considered with other prosecution testimony the findings are different. Page 26 of 32 Four, while going to identification parade, PW3 informed this court that he was from Mwanza and went straight to Musoma Police Central and that he met with nobody, while PW12 informed this court that he advised mother and son (PW3) to meet OC CID the day her son was called for identification parade. That means the son, who is PW3 was with his mother before he went to Musoma Police Central for identification parade and PW3 was in Police Building before the parade. Five, during identification parade PW3 informed this court he identified three accused through signs he saw on that fateful night. However, PW7 testified that witness (PW3) identified two accused and Exhibit P6 show witness identified two accused. Regardless of my previous analysis on identification of attackers in the fateful night. There is contradiction on prosecution evidence on number of accused pointed at the parade. From the contradiction point on prosecution and analysis of how the bullet shell was found and kept, I find no need to analyse ballistic report as the bullet shell which was examined was not established if it was picked at the scene or it was the one picked at the scene as there was no paper trail showing how the bullet was handled. Page 27 of 32 There is a lot of contradiction and variance in prosecution case. The law regulating contradictions and discrepancies show that: 'Contradiction in the evidence of a witness effects the credibility of the witness and unless the contradiction can be ignored as being minor and immaterial the court will normally not act on the evidence of such witness touching on the particular point unless itis supported by some other evidence.' That was pronounced by the Court of Appeal in Sahoba Benjuda vs Republic, Criminal Appeal No. 96 of 1989, and there are precedents in support of the move including Kibwana Salehe vs Republic (1968) HCD 391. It is the settled position that contradiction can only be considered as fatal if it is material going to the root of the case. See Sebastian Michael 8t Another vs The Director of Public Prosecutions, Criminal Appeal No. 145 of 2018. It is also certain and settled that discrepancies cannot be avoided in cases as are affected by time, level of education and understanding of a witness, see: Chrizant John vs Republic, Criminal Appeal No. 313 of 2015, In the case at hand, witnesses are educated, their level of understanding is not questionable and the crime occurred in the 2023, time passed from the Page 28 of 32 incident to testimony is not that much long to make them forget what they have seen or informed. In the present case, the issue is whether the indicated discrepancies are minor and do not go to the root of the matter in consideration of the other facts. In looking at the facts and considering type of witness, I find variance and contradiction to be major on the sense that, standing is different from sitting, two is different form three, a person who was in bad condition cannot signed a document, it was uncertain whether identification parade was conducted or not as witness said he pointed three accused but record show he pointed two. Whom among the prosecution witness is telling the truth and why should this court believe other prosecution testimony. See Mohamed Said vs The Republic, Criminal Appeal No. 145 of 2017 and Zakaria Jackson Magayo vs The Republic, Criminal Appeal No. 411 of 2018, CAT at Dar es salaam. The prosecution has the onus of ensuring that the offence is proved to the required standard. It implies that the prosecution evidence must be so convincing that no reasonable person would ever question the accused's guilt. The same was held in the cases of Anatory Mutafungwa vs Republic, Criminal Appeal No. 267 of 2010 and Festo Komba vs Page 29 of 32 Republic, Criminal Appeal No. 77 of 2015. The stance was fortified in the Mohamed Matula vs Republic [1995] TLR 3 where the Court insisted that: 'Upon a charge of murder being preferred, the onus is always on the prosecution to prove not only tiie death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence.' Further in Mohamed Haruna@ Mtupeni & Another vs Republic, Criminal Appeal No. 25 of 2007 was said that; 'It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence.’ It means the evidence must be so legally convincing that no reasonable person would ever question the accused's guilt. Doubts left by prosecution should benefit accused persons. See Syridion Michael vs Republic (Criminal Appeal No. 262 of 2022) [2024] TZCA 365 (15 May 2024). In the upshot, I have found critical deficiencies in the prosecution case. I have gone through the testimonies of the prosecution witnesses, their testimonies are tainted with variance and contradictions, and it is not safe Page 30 of 32 for this court to rely upon their testimonies. Therefore, I am left with no scintilla of evidence to support the conviction of the accused persons for the murder. For the reasons I endeavoured to explain above, I am of the opinion that the prosecutions have failed to prove their case beyond reasonable doubt as required by the law. Ultimately, I find Steven Range @ Marwa, Ngocho Chacha @ Nyabalisere and Masoya Mohamed not guilt and I acquit them of the offence of murder contrary to section 196 and 197 of the Penal Code [CAP 16 R.E 2022]. I order all accused persons to be released from the prison unless there is other lawful cause to hold them. M. L. KOMBA Judge 06/11/2024 Right of appeal is explained. K M. L. KOMBA Judge 06/11/2024 Page 31 of 32