Republic vs Bendebagambe Hashim

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF BUKOBA AT BUKOBA CRIMINAL SESSIONS CASE NO. 38343 OF 2023 THE REPUBLIC VERSUS BENDEBAGAMBE HASHIM JUDGMENT 2nd and 13th December, 2024 BANZL J,: The accused person, Bendebagambe Hashim is before this Court indicted for the offence of murder contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2019] (the Penal Code). The victim to the murder is Peace Kabibi Tama (the deceased). The incident is said to have occurred on 28th August, 2021 at Nyakakoni village, within Kyerwa District in Kagera Region. When the charge was read over to him, the accused person denied to have murdered the deceased. In order to prove the case, the prosecution summoned eleven witnesses and tendered 12 exhibits. Facts presented by the prosecution witnesses are to the effect that, in 2021, Tama Rutajengwa (PW6) was living with his wife, one Joyce w/o Tama, his daughter (the deceased), Kandwanaho David (PW7) and two servants; Page 1 of 32 ran to inform neighbours and the first neighbour to arrive was Mkapa. Apart from that incidence, they found some items missing including TV. On the same date of incident, around 4:45 PM, Mwemezi Selestine (PW4), a motorcyclist commonly known as bodaboda was fetching water after being hired in a certain wedding ceremony. In the course of fetching water, he heard someone greeting him, saying 'zasaahizi'. He replied though he did not recognise the voice. When he raised up his head, he saw someone (the accused person) carrying a big parcel in the sack and was in a hurry. After raising suspicion, he ran after him calling him to stop. The accused person stopped and PW4 told him to put down that parcel. PW4 opened that sack and found that there were two bags inside the parcel. After opening both bags, he found various items including TV screen, Solar panel, two remotes control, cable, handles of the TV, decoder make StarTimes. PW4 asked the accused person where did he get those items, and he replied that, he got those items from mzee Marcel where he was working. However, on further inspection, PW4 found the passport sizes of Tama (PW6) whom he knew and a big still picture of his wife. Seeing the picture of PW6 and his wife, he realised that, the accused person was lying. He ordered him to board into his motorcycle and he took him to the hamlet leader of Kahili, one Kalisti Page 3 of 32 Emmanuel Kazimili and Bendebagambe Hashim (the accused person). According to PW6, Emmanuel Kazimili was dealing with grazing cattle and the accused was responsible for household tasks like cooking, cleaning and washing utensils. On 27th August, 2021 PW6 left home with his wife headed to Kibirizi hamlet within Kaitambuzi village leaving behind PW7, the deceased, the accused person and Emmanuel Kazimili. He spent the night there and on 28th August, 2021 he and his wife went to the funeral. The evidence also reveals that, on the date of the incident, while at home, the accused person told PW7 to accompany him to the river to fetch water leaving the deceased inside the house. On the way to the river, the accused person told PW7 to take another path and he took another path. However, before reaching to the river, the accused person went back home without water. PW7 arrived at the river but he could not see the accused person. He waited for him but in vain. He decided to fetch water and go back home. On arrival, he found the jerry can of the accused person in the front part but empty. The accused person was not there. The servant who was keeping cattle returned home and he asked the whereabouts of the deceased and PW7 told him that, he left her in the sitting room but when that servant entered inside, he called PW7 and after opening the middle door, they found the deceased laid on the mat dead and there was a sofa on top of her. They Page 2 of 32 Merchiory (PW8). He surrendered the accused person to PW8 and returned to the ditch to fetch water. Thereafter, PW8 called PW6 who arrived shortly. PW6 found the accused person under restraint, but, shortly after he had arrived and identified his properties, PW6 received a call from his home informing him that, there was an incident at his home. PW6 left to his home to see what had happened leaving the accused person under restraint of PW8. PW8 took the accused person to Kaisho Police Station and they were received by G.5096 F/C Ibrahim (PW2). PW8 informed PW2 that, the accused person had stolen things which were in the parcel and the owner is PW6. PW2 inspected the parcel and realised that, there were solar panel 10W with serial number 069533, TV make Sundar 17 inches with serial number GNZYHDQ201905SJ55, Star times decoder with serial number 33410191626132433, adaptor, a big brown bag, one kitenge with mixed colours, one shoe "ye£o", one bed sheet with white and mixed colours, one black cap, three pair of trousers, one yellow t-shirt with black stripes, four passport size of PW6 and one middle-sized photograph (Exhibt P8 and P9). PW2 seized those items by filling in the certificates of seizure (Exhibit P2). Also, PW2 searched the accused person in order to know if he had any weapon and he realised, the clothes he was wearing which is white shirt with Page 4 of 32 black and red drafts (Exhibit P6) and a pair of dark blue trousers (Exhibit P7) had bloodstains on various parts. PW2 seized Exhibit P6 and P7 by filling in the certificate of seizure (Exhibit P3) which was signed by himself, WP Vumilia and accused person. Thereafter, he handed over all seized items to Peter Selestine Pangani (PW10), who by then was the custodian of exhibits of Kaisho Police Station before he retired from service. The handing over was through the chain of custody forms (Exhibit P4 and P5). On his side, PW6 after arriving at his house, he found his daughter already dead. Also, he found the door to his bedroom broken and some of the items were missing. He informed the OC CID about the incident and told him that, the accused person who was at the Police Station, is the one suspected to have killed his daughter. Having received the tragedy information, the OC CID instructed G.311 CPL Kassim (PW11) to interview and record the cautioned statement of the accused person who was already in custody. PW11 took the accused person in the interrogating room. According to PW11, before the accused person making his statement, he cautioned and informed him all his rights according to the law. The accused person made his statement and confessed to kill the deceased on 28th August, 2021. It was also the testimony of PW11 that, after recording the statement in question, he read it over to him and the accused person after Page 5 of 32 being satisfied with his statement, he certified his statement to have been read over to him and what was recorded was correct. The cautioned statement of the accused person was admitted without objection as Exhibit P12. On the same date of incident, the OC CID with other police officers went to the crime scene. On arrival, they found the body of the deceased laid in the sitting room and there was a lot of blood on the floor. The OC CID inspected the deceased body to see what caused her death. They also interviewed some of the witnesses and they were handed over one suspect, Emmanuel Kazimili, the cattle header. Since it was already dark, they reserved the crime scene and returned to the station. In the following morning, they returned there with a medical officer, one Ernest Tumuombe Anthony (PW3) who examined the body of the deceased and found a big cut wound on the back of the neck which was almost cut off. Also, there was another cut wound on the left hand at the middle finger. He discovered that, the big vessels transmitting the blood to the brain were cut causing severe bleeding and the spinal cord was cut causing loss of communication within major organs. He further, examined her private parts but he found that there was no evidence of penetration. However, he decided to take vaginal swab, pubic hair and underwear which he handed over to PW9. He then filled in Page 6 of 32 post-mortem examination report (Exhibit PIO) and handed it over to PW9. The body of the deceased was handed to the relatives for burial. PW3 left with other police officers and on arrival at Kaisho Police Station, he was informed by the OC CID that, there were two suspects arrested hence, he should draw samples from them for analysis. As he could not take samples at the station, the suspects were taken to St. Mary Hospital. At the hospital, from the accused person, PW3 drew mouth swab and pubic hair and packed them in a respective container and did the same from Emmanuel Kazimili. Thereafter, he handed those samples to PW9 after he had signed the handing over form. However, sometimes later, PW9 handed back vaginal swab and blood of the deceased to PW3 for purpose of storing them in the fridge at the hospital at the building of mama na mtoto and the mouth swab, pubic hair and underwear were handed over to PW10, the custodian of exhibits. Those samples were stored until 19th September, 2021 when they were handed over to PW5 who took them to the Laboratory of Chief Government Chemist (CGC), Mwanza for analysis together with Exhibit P6 and P7. At Mwanza, PW5 handed the samples to Lucy Kessy who filled in receipt form GCLA No. 1 (Exhibit Pll) and registered the exhibits by giving them Lab No. 781 of 2021. Thereafter, Lucy Kessy took the samples collected from PW5 to CGC, Dar es Salaam and handed them to Daud Jakobo Ngasa (PW1). After Page 7 of 32 receiving them, PW1 registered them by giving them laboratory number 2951/2021 and the samples were marked as follows; blood sample of the deceased marked 1A; pubic hair sample from deceased marked IB; vaginal fluid sample from deceased marked 1C; underwear of deceased marked ID; sample of pubic hair of the accused person marked 2A, mouth fluid sample from the accused marked 2B; a dark blue pair of trousers seized from the accused with blood stain marked 2C; small and big drafted shirt seized from the accused with blood stain marked 2D; pubic hair sample from Emmanuel Kazimili marked 3A and mouth fluid sample from the Emmanuel Kazimili marked 3B. After receiving, registering, analysis and comparison of DNAfrom the exhibits, the end results showed that there was direct DNA relationship between vagina swab from the deceased (sample 1C) and the trouser from the accused person (sample 2C). Also, there was DNA relationship between sample 1C and sample 2D. Finally, he prepared Forensic DNA profiling report (Exhibit Pl) which he signed and handed it over to his superiors for approval. Thereafter, the report was handed over to the requesting authority. Though there were two culprits who were arrested, but after investigation, it is the accused person who was arraigned before the court charged with the offence of killing the deceased. Page 8 of 32 In his defence, the accused person denied to have committed the alleged offence contending that, he is a resident of Chikagati District in Uganda and he is dealing with business of buying shop properties from Uganda and sell them in Tanzania. He claimed to have started that business in 2018 until 2021 when he was arrested. According to him, in his business, he used to sell properties on credit and one of his clients is Mwemezi Celestine (PW4). On 28th August, 2021 around 12:00 noon, he received a phone call from PW4 to come to Tanzania to collect his money, Tshs. 1,000,000/= for the properties he had supplied him on credit. The items that he used to supply to PW4 included spices, body oil, toilet paper, cooking pots, plastic plates, plastic caps, kanta and body lotion. PW4 had directed him the place where they could meet. He boarded the car to Tanzania and upon arriving at Isingiro station within Kyerwa District, he boarded a motorcycle to Kanyankomo, where they had planned to meet. On arrival at the meeting place, he found PW4 with properties in the sack tied on his motorcycle. PW4 told him to board his motorcycle and rode the motorcycle up to the centre where he stopped at the big house. They alighted off the motorcycle and PW4 opened the parcel alleging that, he had taken him there because he had committed murder offence. He was put under restraint by PW8. Thereafter, PW4 left. After putting him under restraint, PW8 and other Page 9 of 32 people who were there took his money amounting Tshs.200,000/= and his passport and they began to assault him to the extent of tearing his clothes. PW8 decided to undress him the torn clothes and gave him a black trouser and a white with red and black drafts shirt. He was then transported to Kaisho Police Station. At the station, they were received by PW2 who undressed him the clothes he was given by PW8 after his clothes were torn by civilians and he remained naked. He was taken to lock up and sometimes later, he was taken to the office where he was given a document and asked to sign but he told them that he did not know how to read and write. He was asked to endorse his thumb print. He signed three documents. He contends to have signed three documents in the presence of PW2 and PW11 though he did not know what was written in those documents. He denied to have made his statement before police. Furthermore, the accused denied to have ever worked at the house of PW6. He contended to have seen PW6 and PW7 for the first time before this Court. He also denied to know Matiazo place at Nyakakoni. According to him, the case against him was planted by PW4. He also denied the contents written in the cautioned statement about his family and children. Generally, he denied to have made the cautioned statement. Page 10 of 32 That marked the end of evidence from both sides. Having received the evidence of both sides and after scrutinising exhibits tendered, the main issue for determination is whether the offence ofmurder against the accused person was proved beyond reasonable doubt. According to the evidence adduced by PW3, PW5, PW6 and PW7, there is no doubt that the body that was found lying in the house of PW6 was of Peace Kabibi Tama. Therefore, it is undoubted that, Peace Kabibi Tama is dead. Also, after PW3 had examined the body of the deceased, he found a big cut wound on the back of the neck which was almost cut off. He further discovered that, the big vessels transmitting blood to the brain were cut which caused severe bleeding. Apart from that, the spinal code was cut causing loss of communication between major organs. With the finding of PW3 which is reflected in the post-mortem examination report (Exhibit PIO), it suffices to conclude that, the death of Peace Kabibi Tama was unnatural. Now, the remaining specific issues are; one, whether it is the accused person who killed the deceased and two, whether he did so with malice aforethought It is a principle of the law that, where a person is charged for the criminal offence before the court of law, the prosecution is duty bound to Page 11 of 32 prove the offence against the accused person beyond reasonable doubt. The accused person has no duty to prove his innocence, rather he is required to raise doubt on that evidence. This has been insisted in a plethora of cases including the case of Nkanga Daudi Nkanga v. Republic (Criminal Appeal No. 316 of 2013) [2014] TZCA 213 (21 October 2014) TanzLII, where it was stated that: "It is the principle of law that the burden ofproof in criminal cases rests squarely on the shoulders of the prosecution side unless the law otherwise directs, and that the accused has no duty ofproving his innocence." Also, in another case of Richard Otieno @ Gullo v. Republic (Criminal Appeal No. 367 of 2018) [2021] TZCA 120 (14 April 2021) TanzLII, it was stated that: "It is trite that in every criminal trial, it is the duty of the prosecution to prove the charge beyond reasonable doubt and it never shifts to the defence. It was therefore the duty of the prosecution to prove every aspect of its case beyond doubt and the appellant's defence was only to raise doubt on that evidence. See also the Courts decision in the cases George MwanyingiH v. R, Criminal Appeal No. 335 of2016 and Mohamed Haji AM v. R, Criminal Appeal No. 225 of 2018 (both unreported)." Page 12 of 32 From the above cited cases, this Court is enjoined to scrutinise the prosecution evidence to find out whether or not, the case against the accused was proved beyond reasonable doubt. From the prosecution evidence, there is no direct evidence pointing out that, it is the accused person who killed the deceased. That is to say, there is no any witness who eye-witnessed the accused person killing the deceased. The prosecution's evidence relied on the evidence of PW7 who on the date of event, he went to fetch water with the accused person but on the way, the accused person returned back and after PW7 had returned from fetching water, he found the 1 deceased in a pool of blood lifeless and the accused person was nowhere to be seen. Sometimes later, PW4 saw the accused person with a big parcel and in a state of rush. In that situation, PW4 suspected that something was unusual. After stopping him and opening the parcel, PW4 discovered photos which made him believe that those items were obtained from the house of PW6. Upon taking the accused person to PW8, it was later reported that, there was death incident at PW6's house few hours ago. Having been found in possession of those items from the house of PW6 and considering that there was information of murder incident, the accused person was suspected to be the killer of the deceased. He was taken to police station and in his Page 13 of 32 cautioned statement which was admitted without objection, he confessed to have killed her. Notably, with the nature of evidence that no one saw the accused killing the deceased, the prosecution depends on the evidence of the accused person to have disappeared and sometimes later being found in possession of items which were said to have been stolen from the house of PW6 around the same time the deceased was killed. Another evidence that associates the accused with the commission of the offence is the cautioned statement (Exhibit P12) which the accused person made before PW11 and the same was admitted before the court without any objection. In regard to the evidence adduced by PW4, the same indicates that, it is the accused person who was found in possession of various items (Exhibits P6, P7, P8 and P9), which were later identified by PW6 as his properties that were stolen at the time the deceased was killed. Nevertheless, the accused person denied to have been found in possession of those items, rather, he contended that, when he arrived at Nyakakoni where PW4 had directed to meet him to give him his money for the properties he had supplied him on credit, he found them in possession of PW4, but PW4 turned the ball to him after they arrived to PW8. He also denied to know PW6 and PW7 or to have Page 14 of 32 ever worked for PW6. Concerning the Exhibits P6 and P7 which had blood stain, the accused contended that after being beaten by civilians, his clothes were torn, therefore, PW8 gave him those clothes that were in the parcel before taking him to Police. In nature of his defence, the blood that was found in Exhibits P6 and P7 was his that was generated from the beating from civilians. On the other side, the prosecution through PW2, PW4, PW8, contended that, those items were found in possession and were seized from the accused person. It has been held in various cases including the case of Joseph Mkumbwa and Another v. Republic (Criminal Appeal No. 94 of 2007) [2011] TZCA 118 (23 June 2011) TanzLII, that: "Where a person is found in possession of property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with the person or place wherefrom the property was obtained. For the doctrine to apply as a basis of conviction it must positively be proved, first that the property was found with the suspect, second, that the property is the property of the complainant and lastly the stolen thing in possession of the accused constitutes the subject of a charge against the accused. It must be the one that was stoien/obtained during the commission of the offence." Page 15 of 32 Now the next questions for consideration are whether Exhibits P6, P7, P8 and P9 were found in possession of the accused person and whether they were the properties of PW6. Although the accused person denied to have been found in possession of those items contending that he found them with PW4 at the place where they agreed to meet, in my view, his denial was nothing but an afterthought. I am saying so, because, the accused person through his advocates did not cross-examine PW4 on that vital aspect of how he was arrested and being found in possession of stolen properties. In my view, had he intended to deny the allegation to be found in possession of those items, it was expected for him to cross-examine PW4 on that issue and about his mission of coming to Tanzania on that particular date to collect his debt from PW4. It has been stated in a number of cases including the case of Cyprian A. Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992 CAT (unreported) it was held that; 'Ms a matter ofprinciple, a party who fails to cross-examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said" See also the cases of Issa Hassani Uki v. Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (10 May 2018) and Nyerere Nyague v. Page 16 of 32 Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 (21 May 2012) both published at TanzLIL Apart from that, according to the evidence of PW8, the accused person was brought to him by PW4 with the parcel in question and after being opened, he found various items including the TV screen make Sundar 17 inches, decoder, solar panel two remote controls, passport sizes of PW6. After seeing the passport sizes of PW6, he called him and the latter arrived shortly thereafter. After PW6 saw the accused person, he confirmed that, he is his servant and asked him why he stole his properties. After that, PW6 received a call about murder incident and left. This part of evidence by PW8 did not receive any backlash from the defence. Moreover, the fact about the accused person being found wearing Exhibit P6 and P7 that was later confirmed to be the property of PW6, was supported by the evidence of PW2, PW4, PW6 and PW8. Their evidence is further supported by Exhibit Pl which reveals that, Exhibit P6 and P7 belongs to more than one person. This indicates that, apart from the accused person who was found wearing the clothes in question, there was another owner which according to the evidence on record, it must be PW6. Although the accused person claimed to be undressed his clothes and dressed with PW6's clothes, this fact just emerged during the defence. Had this claim being genuine, it was expected to be raised during the testimony of PW4 and PW8. Page 17 of 32 However, none among the two were cross-examined on that vital point in order to raise doubt about the accused person being found wearing other clothes apart from PW6' clothes. This connotes that, the defence accepted over the truthfulness of PW4 and PW8 on that aspect. That being the case, I am satisfied that, the accused person was found by PW4 and PW8 wearing Exhibit P6 and P7 which were identified by PW6 as his properties that were stolen from the murder scene. Also, Exhibit P8 and P9 were found with accused person within the parcel that was carried by the accused person when he was caught by PW4. Concerning Exhibit P8 and P9, PW6 identified them as his properties from the moment he saw at the time when the accused person was under the restraint of PW8. Besides, before this Court, PW6 successfully identified Exhibit P8 and P9 as his properties. In addition, PW7 in his testimony claimed that, some of his properties were stolen including the TV. His evidence is supported by PW6 who confirmed about his properties which were found with the accused person to be stolen from the murder scene. According to PW4 and PW8, the accused person was found with various properties including TV. PW6 identified TV as among the properties stolen from the murder scene. Likewise, PW4 and PW8 identified the same TV as among the properties which were in a parcel carried by the accused person. From their evidence, it is undoubted that, the accused Page 18 of 32 person was found with properties of PW6 that were recently stolen from the murder scene. Under these circumstances, I find safe to invoke the doctrine of recent possession to connect the accused person with the murder incident as the accused person was found with properties which were recently stolen from the house of PW6 where the murder incident occurred. Besides, it is settled law that, the doctrine of recent possession can be cast wide enough to apply in cases where death occurs in the incident that preceded it. See the case of Fernandes Francis v. Republic (Criminal Appeal No. 1 of 2023) [2024] TZCA 1191 (4 December 2024) TanzLII. Thus, in my considered view, the accused person was the one who killed the deceased on the date of incident. Apart from such evidence, there is another evidence, Exhibit P12, a confessional statement of the accused which connects him with the murder of the deceased. According to PW11, the accused person confessed before him to kill the deceased. It can be recalled that, the cautioned statement of the accused person was admitted without any objection from the defence. However, the accused person sought to repudiate it during the defence because he claimed that, he had never made it. He further claimed to have signed a ready-made statement. Obviously, that was not the right time to object its admissibility because objections to the admissibility of confessional Page 19 of 32 statements may be taken on two grounds; first, under section 27 of the Evidence Act [Cap. 6 R.E. 2022] ("TEA") that, that it was not made voluntarily or not made at all and second, under section 169 of the Criminal Procedure Act [Cap. 20 R.E. 2022] ("CPA"), that it was taken in violation of the provisions of the law. It is common knowledge that, when the objection is taken under the former situation, the trial court has to conduct trial within a trial or inquiry to determine whether the accused made the statement at all, or whether he made it voluntarily. In the case of Nyerere Nyague v. Republic (supra) the Court of Appeal restated the following principles: "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 (See SELEMANI HASSANI vR Criminal Appeal No. 364 of2008 (unreported) Secondly, if an accused intends to object to the admissibility ofa statement/confession, he must do so before it is admitted, and not during cross examination or during defence. (See SHIHOZE SENI AND ANOTHER v R (1992) TLR. 330, JUMA KAULULE v R Criminal Appeal No. 281 of2006 (unreported). Thirdly, in the absence of any objection to the admission of the Page 20 of 32 statement when the prosecution sought to have it admitted, the trial court cannot hold a trial within trial or inquiry suo motu, to test its voluntariness. (See STEPHEN JASON AND ANOTHER vR Criminal Appeal No. 79 of 1999 (unreported). 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 (See TWAHA ALLYAND 5 OTHERS vR Criminal Appeal No. 78 of2004 (unreported). 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. (See TUWAMOI v UGANDA (1967) E.A 91 STEPHEN JASON & OTHERS vR (supra). And lastly, everything being equal the best evidence in a criminal trial is a voluntary confession from the accused himself. (See PAULO MADUKA AND 4 OTHERS v R Criminal Appeal No. 110 of 2007 (unreported)." (Emphasis supplied). Back to our case, as stated above, when PW11 sought to tender the confessional statement of the accused person, the defence side did not object. During cross-examination PW11 was asked some few questions including time when the interview was commenced; whether the accused Page 21 of 32 person knew how to read and write; how the accused person signed the statement and whether it was read over to him. Later in his defence, it was when he repudiated it. If the defence side thought that, the statement in question was recorded in contravention of the law or it was not made at all, they ought to have objected its admissibility. Despite being admitted without objection, in evaluating the weight to be attached to the alleged confession, this Court is duty bound to look at all the surrounding circumstances such as, whether the law has been complied with in extracting the statement in question. I had opportunity of scrutinising Exhibit P12. The same shows that, the accused person was cautioned by being informed his offence of murder and that, he was not forced to say anything but whatever he says will be used as evidence against him in the court and his right of having a lawyer, relative or friend during the interview. The statement further shows that, he signed on every part by writing his name and endorsing his thumb print to signify his readiness and acceptance. At the end of the statement, there was certification signed by him to verify that, he read the statement and it was correct as he made. Apart from that, the statement indicates that, the interview commenced at 19:46 hours and completed at 21:00 hours. The evidence on record reveals that, the accused person was received at police Page 22 of 32 station around 7:00 PM and thus, the statement was recorded with four hours prescribed by the law. It is therefore my considered view that, the Exhibit P12 was procured in compliance with the law. In his statement, the accused person explained in details how he was employed by PW6 as his domestic servant. He further explained in details how he killed the deceased in a view of getting the money which he thought PW6 had after he had sold a cow recently. Therefore, in order to get easy access to the room, he decided to kill the deceased who was asleep in the sitting room. At page 3 of his statement, among other things, the accused person stated as follows: "...baada ya hapo, mimi nilikwenda kwenye chumba tunacholala na kuchukua panga. .Jengo nikwenda kumuua yule KABIBI Hi niweze kuchukua pesa ndani... Baada ya hapo nilikwenda had! sebuleni na kumkuta KABIBI amelala nilipita mtango wa nyuma... NHimkata mapanga mawili meneo ya shingoni nika hakikisha amekufa kabisa na baada ya hapo nikakimbia Kwenda chooni nje kutumbukiza panga kwa lengo la kukwepa Kwenda kurogwa kwa waganga." After cutting her, he stormed inside the room but he could not find the money he was looking for. Thereafter, he decided to take some clothes and Page 23 of 32 other items. From page 3 to 4 of his statement, the accused person stated as follows: "hapo karibu na chooni niiikakuta jiwe na kuigia naio ndani na moja kwa moja nikaenda ndani hadi kwenye chumba cha bosi niiikuta kufunli nikaiigonga kufuli Hkaachia nikaingia ndani nikaanza kutafuta heia iakini sikuweza kupata hata shiiingi. ...niiikusanya Nguo zake bosi TAMA ambapo niiichukua shati ambazo sijajua idadi yake, suruaii ambazo pia sijajua idadi yake baada ya hapo nikaenda sebuieni na kuanza kuchukua vitu vngine ambavyo ni TV aina ya Sunday decoder ya AZAM, remote, solar bado mpya, Nyaya za kuunganishia kwenye TV baada ya hapo hivyo vitu vyote niiiviweka kwenye kagunia na baadae nikamfunika mareehemu na kochi baada ya hapo nikafunga miango na kuondoka kueiekea Mabira." Thereafter, he kept on narrating how he met with PW4 who stopped him and after inspecting the parcel he was carrying, PW4 took him to PW8 who put him under restraint and called PW6. He also narrated that, after PW6 had arrived, he recognised his properties. At page 5, he stated as follows: "Nikiwa bado nipo hapo kwa mwenyekiti aiipigiwa simu bosi TAMA na kuuiizwa kama ananifahamu mimi, akasema Page 24 of 32 unanifahamu ndipo akaambiwa kwamba nimekamatwa na baadhi ya vitu vya Thamanipia nikiwa napicha yake. Ndipo akawaambia nakuja, baada ya kufika ndipo akaniona mimi na vitu akaviona na vyote akavitambua kua ni vyakwake na hata Nguo niiizokua nimevaa aiizitambua nizake..." He finally narrated how PW6 left after receiving information about the killing of his daughter and how PW8 took him to Kaisho Police Station. From the contents of the cautioned statement, it is my considered view that, these were statements that were narrated by the person who had knowledge of what had transpired at the incident. I am satisfied that the contents of the cautioned statement contain nothing but the truth revealing how the deceased met her death and how the accused person participated in that killing. What the accused person stated falls squarely within the meaning of confession as provided under section 3(1) of the TEA. Besides, there is nothing to indicate that, it was not the accused person who made that confessional statement because the statement contained various details including personal history which one would also wonder where PW11 would get such details which were known to the accused person. In the case of Michael Luhiye v. Republic [1994] TLR 181 (CA) it was stated that: "With respect to the learned judge we agree with his finding that appellant's cautioned statement to the police Page 25 of 32 was so detailed, elaborate and thorough that no other person could have made the statement but the appellant" Furthermore, even after the statement was admitted, the defence did not cross-examine PW11 about the contents of the statement in question particularly, his confession to the killing of the deceased, what he stole after the killing and how he was caught with the stolen properties. This signifies that, they were comfortable about the contents of the confessional statement. In addition, PW11 was also not cross-examined about whether the statement was obtained under duress or to have never been made by the accused person which connotes that, Exhibit P12 was made by the accused person and it was obtained freely from him. Thus, repudiating it during the defence, is nothing but an afterthought. Apart from that, the complaint about the accused person not to know how to read and write is also an afterthought as in his statement, he said to have studied up to standard seven and he knew how to read and write. It can be recalled that, the accused person during his defence, claimed to have never lived or been at PW6's house. He also denied to be at the scene of crime on the date of the incident. Looking closely at his defence, he relied on the defence of alibi. Although the accused person was fully represented from the stage of preliminary hearing, he has never issued Page 26 of 32 notice of alibi as required under section 194(4) of the CPA. Likewise, he has never furnished the prosecution with the particulars of his alibi before the case for the prosecution was closed as required under subsection (5). If his alibi was genuine and he knew that from the beginning that, he was not at the crime scene, he could have informed his advocates who are conversant with the requirement of the law. Besides, if his alibi was genuine, it was expected to be revealed in the course of testimony of PW7 who explained about the presence of accused person at their house on the date of the incident. Although PW7 in his testimony said he went to fetch water with the accused person around 6:00 PM, he further clarified that, he did not remember the exact time when he left with the accused person to the river. During cross-examination, he admitted to have guessed about time when he mentioned 6:00 PM. The fact that, he mentioned 6:00 PM as the time he left with the accused person to the river, does not make his testimony to be untruthful especially on the presence of the accused person at the crime scene on the date of the incident. Besides, it will be unfair to subject a childlike PW7 on particular details of time who by then was just 11 years old. All in all, PW7 was not cross-examined on the fact about the accused person not to be present at the crime scene prior to the killing of the deceased. All these indicate that, on the date of the incident, the accused person was at Page 27 of 32 the house of PW6 and his aiibi\s just an afterthought. In that regard, I accord no weight to his defence of alibi. Moreover, in my view, defence of the accused person that, he was framed by PW4 and that he came to Tanzania on that day for purposes of meeting PW4 in order to collect his debt is nothing but a blatant lie. If that was the truth, why did the defence remain quiet when PW4 was testifying. That is to say, they did not cross-examine PW4 about inviting the accused person to Tanzania for purpose of collecting his Tshs. 1,000,000/=. Basing on the explanation above, it is my considered finding that, the accused person is the one who mercilessly took the life of an innocent girl, Peace Kabibi Tama. This concludes the first specific issue which is answered in affirmative. Reverting to the second specific issue, whether the accused person killed the deceased with malice aforethought, section 200 of the Penal Code gives the circumstances under which malice aforethought may be established. According to paragraph (a) and (b), malice aforethought may be established where the accused person intends to cause death or to do grievous harm to a person or does an act that he has knowledge to likely cause death or grievous harm. Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 (unreported) it was emphasised that: Page 28 of 32 "...usually, an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following: (1) the type and size of the weapon, if any used in the attack, (2) the amount of force applied in the assault, (3) the part or parts of the body the blow were directed at or inflicted on, (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose, (5) the kind of injuries inflicted, (6) the attackers utterances, if any, made before, during or after the killing, and (7) the conduct of the attacker before and after the killing. "(Emphasis is mine). Back to our case, Exhibit PIO the post-mortem examination report shows that, the deceased died due to: "(1) Significant loss of blood caused by grievous cut of great neck by sharp object blood vessels. (2) Cut of spinal cord that affected respiratory and cardiovascular system." Apart from that, the evidence of PW3 shows that, there was a big cut wound on the back of the neck and the neck was almost cut off and there was severe bleeding. His evidence is supported by PW5 and PW6 who also saw big cut wound on the back of the neck. Apart from that, the accused Page 29 of 32 person in his confessional statement explained that, he cut the deceased on the neck with panga. Considering the part of the body where the blows were inflicted and the type of weapon used by the accused person, it is clear that, the accused person intended to kill the deceased. These facts establish malice aforethought on the part of the accused person. Thus, it can safely be concluded that, the accused person killed the deceased with malice aforethought and hence the second specific issue is also answered in affirmative. Since both specific issues are affirmatively answered, it is my finding that, the charge of murder against the accused person is proved beyond reasonable doubt and thus, the main issue is also answered affirmatively. Therefore, I find the accused person Bendebagambe Hashim guilty as charged and I hereby convict him with the offence of murder contrary to section 196 of the Penal Code. I. K. BANZI JUDGE 13/12/2022 Page 30 of 32 Delivered in open court this 13th day of December, 2024 in the presence of the accused person, Ms. Agnes Lwimike, learned State Attorney for the Republic, Mr. Peter Matete, leaned Advocate for accused person, Hon. Audax V. Kaizilege, Judge's Law Assistant andjyis. Mwashabani Bundala, RMA. I. K. BANZI JUDGE 13/12/2024 SENTENCE The law in this country is very clear that, the offence of murder has only one punishment. My hands are therefore tied to the requirement of the law that I must uphold. Consequently, I hereby sentence the accused person, Bendebagambe Hashim to suffer death by hanging pursuant to sections 197 of the Penal Code and 322 of the CPA. Right of appeal against the conviction and sentence is duly explained. —x I. K. BANZI JUDGE 13/12/2024 Page 31 of 32 ORDER Exhibits P6, P7, P8 and P9 are hereby restored to PW6 I. K. BANZI JUDGE 13/12/2024 Page 32 of 32