Maela Atanas

v' IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT IFAKARA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 12159 OF 2024 REPUBLIC VERSUS MAELA ATANAS @ RAS 1®^ ACCUSED PERSON HOLLO JILYA NG'WANDU @ HOLLO JILYA DUTU MADOSHI .2'^'' ACCUSED PERSON Date of Last Order: 23/09/2024 Date of Judgement: 24/09/2024 JUDGEMENT MAGOIGA,J. The accused persons, MAELA ATANAS @ RAS and HOLLO JILYA NG'WANDU @ HOLLO JILYA DUTU MADOSHI are jointly charged with murder of CHARLES MAGASHI contrary to sections 196 and 197 of the Penal Code,[Cap 16 R.E 2022]. This court was informed that, on the 29^^ day of October, 2023 at Mwatisi area, Kilosa Mpepo village within Malinyi District in Morogoro Region, the accused persons allegedly murdered, one, Charles Magashi. The accused persons pleaded not guilty to the charge of murder. Preliminary hearing was held in accordance with the Acceierated Trial and Disposal of Cases Rules, 1988; whereby the prosecution stated in details ail facts of the case. Briefly, the facts were that, the deceased and second accused persons were husband and wife. It is alleged that on 29^^ day of October, 2023, the 1^*^ accused person hired by the second accused person for payment Tshs.800,000/- murdered the deceased. In that arrangement, the 1^ accused person was paid advance payment of Tshs.50,000/- by the 2""^ accused person and the remaining balance was to be paid after the job was done. On the same date the at around 23 hours, the deceased while asleep, the accused person entered his bedroom with a machete or an axe and assaulted the deceased on head and caused deep cut wounds on the neck, head, pharynx and amputated his eyes. The alarm was raised and people attended. Further facts were that on 30^^ day of October, 2023 news regarding the death of the deceased went viral in the village and the two accused persons were arrested by militia men (Sungu Sungu) and upon being questioned they confessed to be responsible for murder. The matter was reported to Malinyi police station who took up the matter and mounted serious investigations and consequently, the accused persons were r '"Ks-vf- charged for the offence of murder, hence, this judgment after hearing case for both sides. A full trial was then held whereby the Republic called a total of five witnesses and tendered in evidence three exhibits. While, the and accused persons were the sole witnesses in their defence case, had no exhibit to tender. When this case was called on for hearing, the Republic was enjoying the legal services of Mr. Emmanuel Kahigi, learned Senior State Attorney, assisted by Messrs. Dastan William and Simon Mpina, learned State Attorneys. On the other hand, the accused person was enjoying the legal services of Mr. Michael Mteite, learned Advocate and the second accused person was represented by Mr. Sylvester Milanzi, learned advocate. To appreciate what transpired during the hearing of trial, I will reproduce here under a brief summary of the evidence from both sides. PWl- MASANJA CHOLA under oath told this court that he was living with the deceased and the 2"^ accused person as his father and mother respectively. PWl went on telling the court that, on 29^^ day of October, 2023 at around 23 hours while sleeping his mother came to the house he sleeps and told him that his father is dead and has been killed by RAS. Upon that information, PWl went to verify and found that his father was 3 dead and had wound on the neck, head and his eyes amputated. According to PWl,they raised an alarm and people came for their rescue. Further testimony of PWl was that in the morning, among the people who came were militia people led by "Ntemi wa sungusungu', one, Ndila Ishirini (PW2). PWl went on telling the court that, himself, Shija (his elder brother), his mother (second accused person) and Samaka his younger sister were surrounded by people and had their eyes tighten by clothes in order to speak truth, but in the course Samaka refused to be tighten and told the militiamen (Sungu Sungu) that she will speak the truth as she witnessed what happened. In the circumstances, Samaka mentioned RAS and their mother as the killers of the deceased. Upon questioned, RAS confessed to kill the deceased on explanation that he was hired by the 2"^ accused person to do the job at payment of Tshs.800,000/- and that he was paid advance payment of Tshs.50,000/. PWl went on telling the court that in August, 2023, his father and mother had a quarrel and his mother told him that he will kill his father and that she had already agreed with Ras to do the job. PWl identified RAS the 1^ accused person in court and his mother the 2"^ accused person in court. PW2-ND1LA ISHIRINl under affirmation told this court that he is a peasant and "Ntemi wa Sungu Sungu (uiizi shirikishi) of Mwatisi in Kiiosa Mpepo village. PW2 went on telling the court on 30^*^ day of September, 2023 received information that Charles Magashi was invaded and killed the previous night. According to PW2, he went to the scene of crime and confirmed the information. PW2 observed the same wound as observed by PWl. PW2 testified that when asked the wife of what happened, the wife tried to lie but when he put them into serious questioning, one of the daughters of the deceased called Samaka volunteered to speak the truth and mentioned RAS and her mother as the culprits. According to PW2, when the two were questioned they confessed to be responsible for the death of the deceased. Like PWl, PW2 told the whole story and reason for such killing that is mistreatment of the deceased to the second accused person. PW3-ALLEN RAPHAEL MKOBA a Primary Court Resident Magistrate under oath told the court that on 01.11.2023 while stationed at Mtimbira Primary court recorded the extra judicial statement of the 2"^ accused person in which she confessed to plan and with the 1^ accused person murdered the deceased because he has been cruel to the 2"^ accused person during their marriage. According to PW3,the 2^^ accused person freely told of the story of paying the accused person Tshs.50,000/- as advance payment for such killing. PW3 tendered in evidence the extra judicial statement of the 2"^^ accused person in evidence as exhibit PEl. PW4- YUSUPH MESA MUHETA a medical doctor under oath told the court that on 30/10/2023 examined the body of deceased identified by his relatives as Charles Magashi and found that the deceased's death was due to haemorrhage caused by multiple wounds inflicted on the deceased's body using sharp instrument. According to PW3,the body had cut wounds on the head, neck, and eyes were amputated. PW4 tendered in evidence the Post Mortem Report as exhibit PE2. PW5- ASP SIMPOLIANUS CHACHA under oath told this court that in October 2023 was an OC-CID of Malinyi district and that on 30/10/2023 he received a phone call from CCD who informed him of the death of the deceased at Mwatisi Kilosa Mpepo village. According to PW5,immediately himself, other soldiers and a doctor drove to the scene of crime. PW5 went on telling the court they arrived and found many people gathered and witnessed what happened and upon his inquiry from village leadership he was told that the murderers were RAS and Hollo- the 1^ and 2"^ accused persons respectively. V Further testimony of PW5 was that he met the two who confessed to be responsible of the death of the deceased whereby the second accused person hired the accused person to kill her husband at payment of Tshs.800,000/- but was paid advance of Tshs.50,000/-. Further PW5 told the court that the accused person use machete and an axe. It was the testimony of PW5 that, he recorded the cautioned statement of the accused person on 30/10/2023 who confessed to kill the deceased; a job he was hired by the 2"^^ accused person. PW5 tendered in evidence the cautioned statement of the accused person in evidence as exhibit PE3. That was ail about the case for the prosecution. This court guided by the provisions of section 293(2) of the Criminal Procedure Act,[Cap 20 R.E.2022] found the evidence on record suffice to call all the accused persons to enter their defence. The court addressed all the accused persons of their rights, and guided by their advocates respectively, the first and the second accused persons opted to defend themselves under oath and that they will have no witness nor exhibit. DWl-MAELA ATANAS YAKOBO @RAS under oath told the court that he knew the deceased because was his good neighbour and friend. According to DWl, on the night of 29/10/2023 himself and the deceased went to cut thatching grass and came back safely. However, at around 23 7 hours, while sleeping, DWl was awakened by ten-cell leader one, Emmanuel Shija who told him that Charles Magashi has been invaded. DWl went on telling the court that he joined the group and went and confirmed the bad news to be true. In the presence of the ten-cell leader asked the wife who told them that two people entered their house and killed her husband and varnished away. Further testimony of DWl was on that on 30/10/2023 the "Sungu Sungu"lead by''Ntemi wa Sungu Sungu"one, Ndila Ishirini(PW2)queried the family of the deceased on what happened and the wife told them that two people came and killed her husband and went away. Not dissatisfied with the answer, PW2 ordered sticks to be brought and the family of the deceased (composed of Hollo Mwandu-2"^ accused person, Samaka and PWl) were arrested and put in the middle of the people. It was ordered by PW2 to have their eyes covered by clothes so as not to see and put under serious torture by being beaten by Sungu Sungu. In the circumstances, Samaka being afraid of the beatings volunteered to tell the 'Sungu Sungu'she kwows who were the killers and mentioned them as Ng'wewe, Emmanuel Shija and himself-1^*^ accused person. DWl told the court further that PW2 instructed Samaka to mention only DWl and leave the rest of the accused persons in Sukuma language he understands very well. DWl told the court further that PW2 instructed the whole family to mention the accused person and have one say that it was DWl who killed and even when they refused, were beaten. According to DWl, he was called to the middle of the people and have his eyes covered and serious tortured whereby to save his life, he confessed to have killed the deceased. DWl refused to have been cautioned and that all details in the cautioned statement were given by PW2. On the above account, DWl refuted the contents of exhibit PEl and completely distanced himself from the commission of the offence charged. Further, DWl urged this court to found him not guilty and proceed to acquit him form this case. DW2-H0LL0 JILYA MWANDU@ HOLLO JILYA DUTU MADOSHl under affirmation told the court that, the deceased was her husband with for issues, namely Samaka, Shija, Nangi and Dutu. According to DW2, herself and the late husband were living a happy life marriage celebrated in 2006. DW2 told the court that on 29^^ day of October, 2023 at around 23 hours was sleeping with Samaka, Nandi, Dutu and husband in one house. It was the testimony of DW2 that, two people entered the house and started cutting his husband and disappeared into the dark air after killing him. Seeing what befallen his husband, DW2 raised an alarm and many people came for rescue. Further testimony of DW2 was that In the morning of 30/10/2023 the "Sungu Sungu'' led by "NtemI was Sungu Sungu" Ndlla Ishlrlnl(PW2) started questioning them and she answered what happened. But PW2 was not satisfied, and ordered stick to be brought and the family members who are DW2,Samaka, PWl, Nandl were put In the middle of the people, eyes covered by clothes and started beating them. In the course, Samaka refused to be beaten and told 'Sungu Sungu'she will tell them the truth which truth ended up mentioning the she could not see the culprits mentioned because her eyes were covered. DW2 went on telling the court that she was beaten after Sakama mentioned DWl as the killer. - y'i DW2 further testimony was that on 01/11/2023 was taken to Mtlmbira Primary court and told the Magistrate what she told the police that she hired DWl to kill her late husband. DW2 went on telling the court that what she told the Primary court Resident Magistrate was not true but It was because of fear of being tortured. DW2 told the court the testimony of PWl was not true because he testified what was ordered by PW2. DW2 told the court that had grudges with PW2 because he seduced her In vain and that Is why Is trying to fix her with this case. 10 On the above testimony, DW2 urged this court to see her not guilty and set her free from this charge facing her. This marked the end of hearing of the case. The learned counsels for parties prayed for leave to make oral closing submissions in support of their respective positions. I granted leaveallowing each counsel to make his submission within ten minutes. Addressing the court on closing submission, Mr. Mpina on behalf of the Republic stated that, PWl, Masanja Chola told this court how DW2 planned to kill the deceased after he arranged with DWl. He argued that the evidence of PWl was corroborated with Exhibit PE2, the extrajudicial statement, which detailed on the execution of killing of the deceased at a pay of 800,000/= which was proceeded by an advance payment of 50,000/=. Mr. Mpina was of the view that, the oral testimony of PWl and PW5 that it was the accused persons who planned and executed the killing of deceased were collaborated with Exhibit PE2 and PE3. He cited the decision in the case of Kyabanamizi vs. Republic(1962) EA 309 where it was held that the co- accused statement can be used where there is other evidence which points finger at the co- accused. Mr. Mpina maintained that in the instant case there is evidence of extrajudicial statement and caution statement to supplement the evidence 11 of PWl. He attacked the evidence of the accused to be lies and concluded by praying this court to convict the accused as charged. On other hand, Mr. Mteite the learned advocate for the accused, attacking the prosecution evidence he was of the view that the prosecution was mandated to prove the charges against the accused persons beyond reasonable doubt and referred this court to the case of Woolmington v. DPP (1935) AC 462. Referring the evidence on record he submitted that, there is neither direct nor circumstantial evidence led against the accused. He argued that the caution statement was procured by duress and torture while insisting that the evidence of co-accused must be collaborated. Mr. Mteite beiieved that the evidence on record does not corroborate the caution statement. Basing on his submission he urged this court to acquit the accused person and order their immediate release. Mr. Milanzi, the learned counsel for the second accused, submitted that, Samaka, the material witness mentioned by PWl and PW2, was not called. He urged this court to draw an adverse inference against the prosecution for failure to call the key witness. To support his stance, the learned counsel cited the decision in the case of Aziza Abdallah v. R, (1991) TLR71. 12 As to the extra judicial statement, the learned counsel referred this court to the decision in the case of Hamis Juma @ Hamidu Muhoja vs. Republic, Criminal Appeal No. 36 of 2018. He drew the attention of this court to the evidence on record and submitted that PWl said they were tortured including DW2. He referred this court to the evidence of PW2 and submitted that he also said that he tightened the accused person on eyes. He added that PW5 didn't inspected the DW2 before he recorded her extra judicial statement. He insisted that the prosecution has failed to prove the case beyond reasonable doubt against the second accused person and urged this court to set free the second accused person. Having gone through the prosecution and defence cases and oral final submissions respectively It is the duty of this court to analyse the evidence to determine whether the case against the accused persons has been proved beyond reasonable doubt. The two persons are faced with the charge of murder contrary to Section 196 of the Penal Code,[Cap 16 R.E 2022]. The section provides that; "Any person who, with malice aforethought, causes the death of another person by unlawful act or omission is guilty of murder." 13 ^ '.V Therefore, to establish the offence of murder, the prosecution evidence must prove the foilowing eiements; that the person died, the death was a result of an unlawful act as opposed to natural death, that the accused persons were responsible for the murder; and that the accused persons had evil intent before executing the act of murder. However, before going into analysis of the evidence and after hearing the evidence by both sides, I noted that there are facts which are not in dispute between the rivalling parties herein. These are: one,there is no dispute that on 29/10/2023 at around 23 hours, the late Charles Magashi was invaded at his home at Mwatisi area, Kilosa Mpepo viiiage and brutaily kilied. Two, no dispute as weli that his death was not natural but due to cut wounds inflicted on his body at the neck, head and eyes amputated, hence, died of haemorrhage. Three, there is no dispute as weli that the two accuses persons were charged for cause of death of the deceased. Four, there is no dispute that the wounds were caused by sharp instrument or object. "iW-'' Now back to the issues raised above, starting with the first element, whether person died. As noted above, the there is no dispute that death of a person has been proved and, in this case, Charles Magashi is dead. This was proved by the post mortem report(exhibit PE2), eye witness and oral accounts of PWl, PW2, PW4,and PW5 who saw the deceased's body. 14 The cause of death, according to PW4, was due to haemorrhage due to cut wounds inflicted on the deceased's body. On the other hand, DWl and DW2 in their defence readily admitted to see deceased body dead in the house and they also confirmed to see dead body of Charles Magashi. Suffice it to say at this juncture, in this case, the first element has been established. As to the second element whether the death was a result of an unlawful act as opposed to natural death, it is apparent and there is a lot of evidence that the death of Charles Magashi was not natural. He died as a result of severe bleeding due to cut wounds inflicted on his body. The confirmation by the post-mortem examination report, which was not objected to by the defence clearly shows that the deceased's life was terminated by the perpetrators' unlawful act. Therefore, the second element has been proved as well. Perhaps the most obvious question is, who caused the brutal murder of the deceased? That goes to the third ingredient that who killed Charles Magashi? It is not disputed that none of the prosecution witnesses testified to have seen the accused persons in this case kill the deceased save for the second accused person who knew what happened. In her extra judicial statement, DW2 had this to say in exhibit PEl which also 15 form the basis of the defence of the second accused person. Exhibit PEl reads in part as hereunder: MAELEZO YA MAHABUSU: "MUME WANGU(MAREHEMU) TOKA ANIOE AMEKUWA AKINIPA MATESO KWA KUNIPIGA MARA KWA MARA HUSUSANI BAADA YA YEYE KUVUTA BANGL MARA NYINGIHUWA HAJALIMUDA WA KUPIGA HATA NIKIWA NA MIMBA. AMEKUWA AKINITUMIKISHA KAZI NGUMU NA HATA KULIMA KIPINDI NIKIWA DHOOFU KIAFYA. NI MUDA WA MIAKA KUMI NA NNE NIMEKUWA NIKIVUMILIA MATESO MAYA. ALIENDA MBALI NA KUWEKA SUMU KWENYE UGALI ILI WATOTO WANGU WAFE HUSUSANI MTOTO WANGU MASANJA. BAADA YA KUMUULIZA ALIKANUSHA NILIMUOMBA APATE KULA CHAKULA HICHO ALIKATAA NA ALIANZA KUNIPIGA. ALINIKATAZA KULA NA ALINICHUKUWA NA KUNIPELEKA PORINI NA KUNIFUNGA NA KAMBA KWENYE MTI MPAKA ASUBUHI. KESHO YAKE NILIRUDI NA ALININYIMA CHAKULA. ALITAKA KUNICHINJA NA KISU. MATESO ALIYOKUWA AKINIPATIA NA MAJIARIBIO YA KUTAKA KUNIUA MIMI NA FAMILIA YANGU NILISHIKWA NA HASIRA NA NILIAMUA KUMTAFUFATA MTU ILIAMUUE. MTU HUYU MIMI NAMFAHAMU KWA JINA LA RAS. TULIELEWANA SHILINGI LAKI NANE (800,000/=) LAKINI NILIMTANGULIZIA SHILINGI ELFU HAMSINI (50,000/=) NA NYINGINE ILIYOSALIA TULIKUBALIANA NIMLIPE AKIMALIZA KAZI. RAS ALIENDA KUIFANYA KAZI HIYO NILIYOMTUMA NA ALIMUUA KWA PANGA KWA KUMKATA KWENYE SHINGO, KICHWA NA BEGA. VILEVILE ALIMCHOMOA MACHO. MAUAJI HAYO YALIFANYIKA USIKU WA SAA TANO MNAMO 16 0 TAREHE 29/10/2023. BAADA YA KUUA RAS ALIRUDI KWENYE MAKAZI YAKE. BAADA YA MUDA TAARIFA ZA KIFO CHA MUME WANGUZILITAPAKAA KIJIJINI, NA YERASALIFIKA KWENYE TUKIO KWAKUWA RASALITEKELEZA MAUAJI KARIBU NA MAKAZI YANGU AMBAPO WATOTO WALIMUONA, AZIMIO LILIPOTOKA KUWA FAMILIA YANGU IPIGWE VIBOKO, WATOTO WAKAMTAJA RAS. RAS ALIKAMATWA NA KUKANUSHA KUTENDA JAMBO HILO. MINI NILIKAMATWA NA KUZIBWA NGUO USONI. WALIPOCHUNGUZA MWILIWA RAS,JAMBO LILILOTEKELEZWA NA ASKARI WA ULINZI SHIRIKISHI (SUNGUSUNGU) NA KUBAINI DAMU KATIKA MWILI WAKE NA NDIPO WALIPOMTHIBITISHA. ASKARI WALIFIKA ENEO LA TUKIO NA KUMCHUKUA RAS MPAKA KWENYE MAKAZI YAKE NA SITAMBUIKAMA WALIPATA KIELELEZO CHOCHOTE. RASALINITAJA MIMI NA NDIPO TULIPOCHUKULIWA NA KUFIKISHWA KITUO CHA POLISI MALINYI. NIHA YO TU." From the above excerpt, one can deduce that, the confession has the following: one,that the second accused person confess to plan to kill her deceased husband through the accused person for payment of Tshs.800,000/-. Two,on the fateful night of 29/10/2023 the evil intention between the accused persons was executed and one of the children of the deceased Samaka saw the incidence and mentioned the 1^ accused person. Three, that the matter was taken up by Sungu Sungu who after questioning the accused persons both admitted to be the killers. Four, that the 2"^^ accused person planned and executed the killing as revenge 17 for torture and threats to be killed by the deceased Five, that the killer was paid advance payment of Tshs.50,000/. Six, that the 2"^ accused person raised an alarm after the mission was completed and that accused person responded because is physical neighbours. It should be noted that, the use of confessions in criminal cases is not new in our jurisdiction. Our Evidence Act,[Cap 6 R.E.2022] has section 142 of the Evidence Act, [Cap 6 R.E.2022] which is very clear and loud that conviction is not illegal because stems from evidence of accomplice. For easy of reference the said section provides: - "Section ^142. An accomplice shaii be a competent witness against an accused person; and conviction is not iiiegai merely because it proceeds upon the uncorroborated testimony ofan accomplice.' Interpreting section 142 of the Evidence Act, the Court of Appeal in the case of Mike Nwankwo vs Republic, Criminal Appeal No 200 of 2021)2024 TZCA 773(20 August 2024) observed as follows; "According to this provision, it is lawful to convict an accused person based on the evidence of a co accused. However, that is a position of the statutory iaw, hut its interpretation by this Courtis that as a matter ofpractise, in order to soieiy base a conviction on the evidence ofa co 18 accused^ such evidence has to be corroborated. On that assertion,Ifind comfortin Court ofAppeai decision in the case ofPascai Kitigwa v. R[1994]T.LR. 65, where it was heid that: [ii) Evidence from a co-accused as in this case, is accompiice's evidence and a court may convict on accompiice's evidence without corroboration, if it is convinced that the evidence is true, and provided it warns itseif of the dangers of conviction on uncorroborated accompiice's evidence; (Hi)Aithough the iaw does notsay that conviction on uncorroborated accompiice's evidence is iiiegai, it is stiii unsafe, as a matter of practice, to uphoid a conviction case on the uncorroborated evidence ofa co-accused." In the case of Paulo Maduka and 4 others Vs. Republic, Criminal Appeal No.110 of 2007 CAT at page 10 observed that: - "... the verv best evidence of witness in anv criminai triai is an accused person who confesses his auiitv. However,such ciaims of accused persons having made confession shouid 19 not be treated casually bv court of justice. The prosecution shouldalwaysprove thatthere wasconfession made and the same was made freely and voluntarily.''(Emphasis added). Further guidance in speaking of confession can be gathered from the case of Jacob Asagilile Kakune Vs. DPP, Criminal Appeal No. 178 of 2017 at page 14 where the Court of Appeal observed that: - "... an accused person who confesses to a crime Is the best witness." In this case, the so called, extra judicial statement, I am entitled to say, is dear and that was voiuntarily made by the second accused person before justice of peace. This is what we call in law, evidence of accomplice. The use of evidence of accomplice in criminal cases is equally not new in our jurisdiction. In the cases of Miraji Idd Waziri @ Simwana and another Vs. Republic, Criminal Appeal No. 14 of 2018 at page 13 the CAT and in the case of Godfrey James Ihuya and another Vs. Republic[1990]TLR 197 observed that: - "... We agree In principle thatevidence ofan accomplice needs corroboratlon for It to be acted upon against an accused. However^ a conviction Is notnecessarilvillegalforbelna based 20 on uncorroborated evidence of an accomplice. (Emphasis added). Further guidance in the use of evidence by accomplice can be gathered form the case of Michael Mathias Vs. Republic, Criminal Appeal No.9 of 2007 CAT observed at page 8 that: - "... In appropriate cases, a conviction can be founded on uncorroborated evidence ofan accomplice where the court finds it to be true and warns itseif of the danaer of convicting on uncorroborated evidence ofan accomplice." (Emphasis mine). Basicaily, from the above guidance, what I gathered is that what is to be considered is that the confession or accompiice evidence was procured voluntariiy, has been corroborated and where not corroborated is aii about the truth of the matter at issue and the court has considerably warns itself of the dangers of convicting on uncorroborated evidence of accompiice. In the present case, as noted above, the prosecution witnesses did not see or witness what happened. The light of what happened comes from the second accused person. With the above in mind, I will now test the confession of an accompiice and see if it falls within the above guided 21 principle before I say it has or has not met threshold of the above guidance. The gauging issues of voluntariness, corroboration and truth can be cumulativeiy determined. In my considered opinion, having regards to the circumstances and evidence on record in this case, I find the confession or the evidence of accomplice (exhibit PEl) was voluntarily made, it has been corroborated and is nothing but the truth. I wiii explain. One, the second accused person when cross examined admitted that when she recorded exhibit PEl was free and was with PW3 alone. Two, the two accused persons are, physical neighbours and no dispute, long time known to each other and none raised reasonable grudges was raised between the two. Three, I find that the second accused person offered satisfactory explanation why she decided to take the law in hand out of mistreatment from the iate husband. This was corroborated by the evidence of PWl, PW2, PW4 and exhibit PE3. This piece of evidence was not controverted by the defence leave alone cross examined on the same. Four, the argument by DWl that he was tortured is an afterthought on his part because he never cross examined any of the above witnesses on that point. Five,the argument by DW2 that has issue of seduce with PW2 are total lies because PW2 was not cross examined on that point. Six,the evidence of an accomplice was received in evidence without any objection 22 and nothing material was cross examined to make it not trusted which to me I find it to be true in the circumstances of this case. Seven, the evidence of accomplice was also corroborated by the evidence of PWl, PW2 and findings in exhibit PE2. Eight, the alibi of DWl that he was at his home is wanting because there was possibility of the accused person committing a crime and still takes him few minutes to his home. The conduct and demeanour of DWl was doubtful because he wanted to lie to court that from his home to the home of the deceased is one hour walk while knowing is lies. Nine, the 2"^ accused person conduct and utterance to PWl who is her own child and without any grudges negate her empty denial that she never hired DW2 to kill her husband. This showed that the evidence by prosecution was full of corroborations, hence, entitled to convict the accused persons as killers. Generally, the extra judicial statement by the second accused documented well the execution of the murder against the deceased. The story was so clear that unless was planned by her no one could tell this chronologic incident of the murder. There is no likelihood that the Primary court Resident Magistrate- the Justice of Peace who recorded extra judicial statement created the story of the murder that she did give her freely. He could not have in the position to predict all stated in the extrajudicial statement made by the second accused which was collaborated by the 23 prosecution witness. Undeniably, the story about the murder was given by the second accused person to the justice of peace. I don't find any doubt that the extra judicial statements of the second accused person contained true information about the murder of the deceased and therefore relevant in this case. I have also considered the fact that the second accused has raised issue of torture but with due respect to her as held above she was a free agent before justice of peace. However, the 1^ accused person alleged that he did not give cautioned statement. In my considered opinion, this a general denial because the same was admitted without objection indicating what is contained therein is nothing but the truth. In the circumstances and having warned myself on the danger of relying on the evidence of co- accused, I am of the considered view that the evidence made by the second accused may safely be relied upon to convict the and 2"^ accused persons. On the foregoing, I find that the confession or accomplice evidence in this case is nothing but the truth of what happened. Not only that but it has been corroborated by the evidence of PWl on the issue of DWl who was told before and after the killing by the 2"^ accused person. It has as well been corroborated with the tstimony by DWl. That is to conclude that not only that the evidence of accomplice in this case was 24 ^ voluntarily given but is the truth of what happened and it has been corroborated by independent evidence as noted above to support the evidence by the accomplice. The argument by the accused that he was mentioned because Samaka mentioned her is but nothing and an afterthought calculated by DWl intended to escape justice. It is rejected. In essence the evidence of accomplice in this case as held above has satisfied all the requirements ; and I have as well seriously warned myself, but in all respects, defeats the defence of the and 2"^ accused persons which are full of lies. The evidence of DW2 did not impress me and when cross examined admitted that he lied to police and what prevents her from lying to this court. Before arriving at that the conclusion my decision, I have also considered the defence by the first and second accused. The first accused person stated that he was sleeping until when he was awakened by ten- cell leader and joined the call for rescue. However, in my view, his testimony neither shake the prosecution case nor reduce the probability for him to commit the offence charged considering the fact that it takes no time to be at his home because the two are physical neighbours. I have considered the defence as raised by the accused person. Apparently, it cannot be said that the fact that the accused person was at his home, hence, to disassociate him from the commission of the offence 25 as there is still the possibility for him to go and commit the crime at the deceased's house and go back to sleep innocently at the house house. On his part, the 2"^ accused person stated that on the material date he heard people entering the house and killed her husband and disappeared in the tiny night. This piece of evidence was negated by the testimony of PWl by her utterance before and after which were not controverted at ail. Be that as it may, no prior notice of reliance on the defence of alibi was given by the accused person before the closure of the prosecution case at any given time as required under section 194 of the CPA. Belatedly defence of alibi casts doubts on its authenticity. For the foresaid reason, and in view of what was held in the case of Mike Nwankwo vs Republic (Criminal Appeal No 200 of 2021) 2024 TZCA 773 (20 August 2024), I accord insignificant weight to the evidence adduced by the 1^ accused persons. As to the 1^ and 2"^ accused persons, all above considered, it is my strong considered opinion that the 1^ and 2"^ accused persons acted in joint efforts to kill the deceased as charged. 26 With that note, I now come to one conclusion that it was the and 2"^ accused persons before this court who planned and managed to murder the deceased for payment of money and out of revenge. The next question is whether they did so with malice aforethought. This is relation to the fourth element as to whether the accused persons had evil intent before executing the act of murder. The law concerning malice, aforethought is settled, and the same can be inferred from several factors. The Court of Appeal in the case of Enock Kipela V R, Criminal Appeal No. 150 of 1994 stated, inter alia, that; ^Usually, an attacker will not declare his intention to cause death or grievous bodily harm, whether or not he had the intention must be ascertained from various factors, including the following: (i)The type and size of weapon which was used in the attack leading to the death of the deceased; (ii) The amount of force which was used by the attacker in assaulting the deceased; (ill) The part or parts of the body of the deceased where the blow of the attacker was directed at or inflicted; 27 (iv) The number of blows which were made by the attacker, although one blow may be enough depending of the nature and circumstances of each particular case; (v) The kind of injuries inflicted on the deceased's body; (vi) The utterances made by the attacker if any, during, before or after the incident of the attack'. Applying the above principles to the case at hand, the tests were met since the post mortem report stated that the deceased bodies were found with multiple cut wounds. This means that he was slaughtered. Further the number of wound and all on head and neck and eye amputated is enough to establish that the killing was perpetrated with malice aforethought. That said and done, and for the reasons I have endeavored to explain above, I am satisfied that prosecution have been able to prove their case beyond reasonable doubt that, it was the and the 2"^ accused persons who killed the deceased with malice aforethought. Hence, I am satisfied that the accused persons are guilty as charged and consequently proceed to convict them for the offence of murder contrary to sections 196 and 197 of the Penal Code,[Cap 16 R.E. 2022]. 28 Order accordingly. Dated at IfaJiMztWs 24*^^ day of. ber, 2024 S. M. MAG9IGA JUDGE 24/09/2024 COURT: Judgement delivered today on 24/09/2024 in the presence of Mr. Emmanuel Kahigi, learned Senior State Attorney assisted by Messrs. Dastan William and Simon Mpina, learned State Attorneys for the Republic and in the presence of the accused persons and their respective advocates, Mr. Michael Mteite for the person accused person and Mr. i'JRT Sy1 ivester Psffina,^gar second accused person. lli m CT' X MJi AGdlGA / JUDGE 24/09/2024 Aaaravatina factor bv the Republic: Kahiqj, learned Senior State Attorney: My lord, this is murder, and punishment is one. We pray the court to sentence the accused person in accordance to law. 29 ■A A Mitiaatina factors bv defence: Mr. Mteite, learned Advocate - My Lord, No comment Milanzi, learned Advocate - My Lord, No comment. Sentence: Having heard the brief prayer by the iearned Senior State Attorney to consider the law and sentence the convicted persons in accordance with the dictate of the law and by learned advocate Mr. Mteite for the and accused person, and Mr. Milanzi, advocate for the 2"^^ accused person with no comment,I am mindful that this being murder case, and according to law has one sentence. That said and done,I hereby sentence the and 2"^ accused persons to suffer death and are hereby condernn^cj tp^ suffer death by hanging Order v.... S. MJ M JUDGE 24/09/2024 COURT: RightoT=app^al fully ex o IffeTi-) Ig (/■^ /pi& - teu/" s-m.n AG JUDGE 24/09/2024 30