MZAULA JUDGMENT1 FINAL

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL SESSIONS NO. 230 OF 2022 REPUBLIC VERSUS 1. GODSON LAURENT @ MZAULA 2. DENIS ZEBEDAYO URASA @ PASUA 3. EX-MT 80854-PT SAID MOHAMED MAHADHI JUDGMENT 20th November & 11th December,2024 MWANGA, J. The present one is the case of murder. The accused persons are jointly and together charged with murder contrary to sections 196 & 197 of the Penal Code [Cap. 16 R.E 2022. They are charged with killing one Joseph Tiria Msakala @ Joseph Stubbon Tiria on the 21st day of May 2020 in an unknown area within Kinondoni District, Dar es Salaam region. Facts about this homicide are simple to comprehend. It is alleged that, on 21st May 2020, the deceased, who was a Tax driver for BOLT Company, left to work with his Toyota IST with Reg. No. T139 DST, but on that date, he never returned home. His wife, Jacqueline Joseph Tiria, reported the matter at Kimara Police Station. On the same date, the 1st 1 accused person was seen packing the deceased car at a guest house called API Forest Guest House. He then paid TZS 1000/= as the parking charges to the guards, Shaban Iddi@ Msumi, and Rajab Ally @Chanzi. The 1st accused introduced himself to the guards as Thomas Kasheri, and after that, he asked for water to wash the said Car, where he was allowed to use the rap water to clean the same. He afterwards, left the place and promised the guards that he would return to pick up the car. On 22nd May 2020, in the morning, the said security guard saw pool of blood under the car, which the first accused was washing, and they also saw two identity cards with blood stains. The card was the National ID of the deceased with Reg—No. 19690127-11408-00001-20. The security guards reported the matter to their boss and later to the Police Station. Since the 1st accused promised to come back to pick up the said car, the police set a trap to arrest the 1st accused, though it became fruitless on the respective date. The investigation commenced, and Police H9393 D/C Seif, accompanied by other officers, arrested the first accused person. The first accused person was found to possess the deceased’s mobile phone, a Samsung S8-Plus. The search was conducted at the accused person's 2 rented house, where they found one T-shirt with blood stains, muddy shoes, a computer modem, and a trouser-jeans type. The 1st accused was interrogated by E.5247 D/Cpl Eliah and confessed to having killed the deceased and robbed his car, being accompanied by the 2nd and the 3rd accused person. After that, the 1st accused person led the police officers to the Mbezi Juu area near the wall of St. Merry’s, where they buried the deceased body. The deceased body was exhumed from the location where it was buried, and the autopsy examination was conducted by Dr. Atuganile Edward, whose autopsy report revealed that the deceased's cause of death was due to Severe Traumatic Brain Injury. The information received from the first accused led to the arrest of the second and third accused persons. After the arrest, the second accused person, G64731 D/C Joseph, also confessed to the police that he participated in the commission of the crime. The 1st accused was taken to the justice of peace one, Felister P. Massawe, where he confessed again to having caused the deceased death and stealing his car. In the process of investigation of the crime, the blood-stained T-shirt found in the house of the 1st accused and the piece of bone of the deceased were taken for DNA examination by the Chief 3 Government Chemists. The report revealed that the blood on the T-shirt and the deceased's bone were related. Consequently, the accused were arraigned in court on murder charges that they are presently facing. When called to answer their charges, all accused persons returned a plea of not guilty, which resulted in the prosecution summoning to court 21 witnesses and 17 exhibits to prove their case. In contrast, the accused persons fended for themselves. On different occasions during the hearing, the Republic was represented by Adolf Kisima, SA, Cathbet Mbilinyi, SA, and Tumaini Mafuru, SA. At the same time, the defense was manned and enjoyed the services of Deogratius Kibasa, Yohana Michael Kibindu, Francis Munuo, Helen Moshi, Fredrick Charles, and Fatuma Hemedi, both learned advocates for the first, second, and third accused persons. After the conclusion of the trial, the counsels for the parties prayed for leave to file their final submissions, the prayer which was cordially granted. Both parties adhered to the filing schedule. I had time to read their final submissions in support of their respective stances. However, I do not intend to reproduce either the entire set of evidence of the parties or the submissions in determining this case. I shall only refer to them here and there where need be. 4 I have considered evidence from both parties and the counsel’s submissions on the prosecution case's strengths and weaknesses. The main issue for determination is whether the charge against the accused persons was proven to the required standard, which is beyond reasonable doubt. Before venturing into the issue above, revisiting the principal governing criminal cases is imperative. It is the trite law under sections 110(1) and (2) and 112 of the Evidence Act, Cap. 6 R.E 2022, that he who alleges must prove, and the burden of so proving lies on the person who alleges. See the cases of Issa Mwanjiku @ White Vs Republic, Criminal Appeal No. 175 of 2018 (Unreported). Nathaniel Alphonce Mapunda and Benjamin Mapunda Vs. R [2006] TLR 395 and Zombo Rashid Vs. R, Criminal Appeal No. 7 of 2012 (CAT-unreported). It is also worth noting that, in all criminal matters, the standard of proof is beyond reasonable doubt as provided for under section 3(2)(a) of the Evidence Act [Cap. 6 R.E 2022] since conviction cannot be grounded on mere suspicion. The standard was also considered in the case of Nathaniel Alphonce Mapunda and Another vs. R (supra) when the Court observed thus: “i) As is well known, in a criminal trial, the burden of proof always lies with 5 the prosecution. Indeed, in the case of MOHAMED SAID V R, this Court reiterated the principle by stating that in a murder charge, the burden of proof is always on the prosecution, and the proof has to be beyond reasonable doubt. (ii) Where circumstantial evidence is relied on, the principle has always been that facts from which an inference of guilt is drawn must be proved beyond reasonable doubt. (iii) In criminal charge, suspicion alone, however grave it may be, is not enough to sustain a conviction, all the more so, in a serious charge of murder”. From the above-cited authorities, it is evident to this Court that the prosecution must lead the evidence towards proving that it is the accused and the accused persons only who are responsible for committing the offense as per the charge laid before them. Undoubtedly, the accused persons are charged with Murder, whose ingredients are traced from section 196 of the Penal Code [Cap. 16 R.E 2019]. The section provides thus; “Any person who, with malice aforethought, causes 6 the death of another person by an unlawful act or omission is guilty of murder .” Now, to prove murder charges, three ingredients must be established. One, whether the person claimed to have been killed is dead and his/her death is unnatural. Two, whether the accused persons are responsible for such death, and three, whether the alleged murder was actuated with malice aforethought. With that knowledge in mind, the issue that this Court is set to determine is whether the prosecution managed to meet the elements stated above. In the first element, the prosecution must prove beyond reasonable doubt that Joseph Tiria Msakala @ Joseph Stubbon Tiria died an unnatural death. The answer to this issue is straightforward. The evidence of PW1, PW9, PW10, Pw15, and PW18, who witnessed the exhumation of the deceased, and PW17, the pathologist who conducted the postmortem, proved that Joseph Tiria Msakala @ Joseph Stubbon Tiria is dead and that he died a violent death. The pathologist (PW17) and relatives who witnesses conduct of the post-mortem examination report (exhibit PE15) provide an answer that the deceased death was due to severe traumatic brain injury. Thus, the first element, in my firm view, is proved to the hilt. 7 Regarding the second element, the issue is whether the accused persons before this court are responsible for the death of Joseph Tiria Msakala @ Joseph Stubbon Tiria. I believe criminal cases may be proved by direct or circumstantial evidence, the accused’s confession, or both. From the evidence advanced by the prosecution in court, none of the 21 witnesses testified to have seen the accused persons killing the deceased. Thus, the case depends purely on circumstantial evidence and the accused’s caution statements. By its nature, circumstantial evidence allows more than one explanation; hence, there is a need to consider different pieces of evidence that corroborate each other before any conclusion is drawn. It follows, therefore, that all the circumstances taken cumulatively should form a complete chain so that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and none else. This position was stated in the case of Armand Guehi Vs R, Criminal Appeal No. 242 of 2010 (CAT-unreported). Thus, the prosecution is duty-bound to adduce exculpatory facts inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt of the accused person. Before drawing an inference of guilt from 8 circumstantial evidence, it is also incumbent for the court to be sure that no other co-existing circumstances would weaken or destroy the inference. The Court of Appeal in the case of Shilanga Bunzali Vs. R, Criminal Appeal No. 600 of 2020 (CAT-unreported) had an opportunity to deliberate on the principles guiding the court before a conviction relies on circumstantial evidence. In so doing, the Court observed thus: "...the settled position of the law that, one, the circumstantial evidence under consideration must be that of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. See Lucia Anthony @ Bishengwe Vs. The Republic, Criminal Appeal No. 96 of 2016 (unreported); two, that each link in the chain must be carefully tested and, if in the end, it does not lead to the irresistible conclusion of the accused's guilt, the whole chain must be rejected. See Samson Daniel Vs. Republic (1934) EAC.A. 154]; three, that the evidence must irresistibly point to the guilt of the accused to the exclusion of any other person. See Shaban Mpunzu @ Elisha Mpunzu Vs. Republic, Criminal Appeal No 12 of 2002 9 (unreported); four, that the facts from which an inference adverse to the accused is sought must be proved beyond reasonable doubt and must be connected with the facts from which inference is to be inferred. See Ally Bakari Vs. Republic (1992) TLR, 10 and Aneth Kapazya Vs. Republic, Criminal Appeal No. 69 of 2012 (both unreported); and five, the circumstances must be such as to provide moral certainty to the exclusion of every reasonable doubt- see Simon Msoke Vs. Republic (1958) EA 715”. Further, it should be underscored that circumstantial evidence may be more conclusive than the evidence of an eyewitness. See the case of Georgina Masala vs. Republic, Criminal Appeal No. 128 of 2014 (unreported), and Samson Daniel v. Republic (1934) 1 EACA 46. In the latter case, the court observed that; “Circumstantial evidence may be not only as conclusive but even more conclusive than eye witness." Reverting to the case at hand, with a view of discharging its duty, the prosecution brought 21 witnesses and 17 exhibits, and the main evidence 10 hinges on PW7, whose evidence points the first accused person. I will thus discuss his evidence first. Per his evidence, on 21/05/2020 at 7:00 pm, the first accused person went to Happy Forest Lodge, where he parked the car, IST, with registration No. T.139DST. According to him, he filled in the personal particulars of the 1st accused in the register in exhibit PE8, though the accused used a different name, Thomas Kasheri. In his further testimony, PW7 said that the 1st accused washed the said car, which he took almost three hours to do. Upon inspecting the scene, PW7 discovered that there was a pool of blood on the car and grounds and some documents, including a car registration card, driving license, and NIDA. Upon inquiry from the first accused, he replied that the car was carrying fish, and concerning the documents, he said he would send Bodaboda to pick them up. This witness reported the matter to police Mbezi Juu kwa Yusuph, which enabled the police to set a trap; however, on 23/05/2020, when the 1st accused went to pick up the car, he managed to escape the police thus, the police seized the car only. The car was identified by PW8 Stella Edson Mwandemani, the owner, who verified that he gave the car to the deceased to do tax-Bolt business. PW8 also identified her car registration card. Furthermore, PW7 identified the 1st accused person on 11 09/06/2020 during an identification parade at Osterbay Police Station, though the same was not tendered in court. As to whether PW7 evidence of identifying the 1st accused meets the visual identification test, I wish to be guided by the Waziri Amani vs Republic (1980) TLR 250 case. The test has also been revisited and refined by the court in many cases, including the case of Musa Mbagwa vs R, Criminal Appeal No. 39 of 2013, Omari Iddi Mbezi and three others vs Republic, Criminal Appeal No 227 of 2009 CAT- unreported, that the witness must make full disclosure of the source of light and its intensity, explanation of the proximity to the culprit and the witness and the time he spent on the encounter, description of the culprit in terms of body build, complexion, size and attire. Additionally, the witness must mention any peculiar features, which should be repeated at his first report to the police on the crime, who would, in turn, testify to that effect to lend credence to such witness evidence of identification parade and during the trial to test the witness memory. A more fortified position on identification was laid down in the case of Chacha Jeremiah Murimi v. Republic, CAT-Criminal Appeal No. 551 of 2015 (unreported), in which the Court of Appeal came up with a raft of questions that ought to be posed in assessing propriety and reliability of identification. It was held that; 12 “To guard against the possibility the Court has prescribed several factors to be considered in deciding whether a witness has identified the suspect in question. The most commonly fronted are: how long did the witness have the accused under observation? At what distance? What was the source and intensity of the light if it was at night? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? What interval has lapsed between the original and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses, when first seen by them in his actual appearance? Did the witness’s name or describe the accused to the next person he saw? Did that/those other people/s give evidence to confirm it" In light of the foregoing guidance, the question is whether the conditions for identification in the present case were met. In this case, 13 the key prosecution witness, PW7, explained how he was able to identify the 1st accused person, as the accused stayed with him for almost three hours on 21st May 2020, from 1:00 pm to 4:30 pm, and he mentioned that there was enough light from electricity surrounding the area. Secondly, he mentioned his physical features: a bit short, light, medium- sized man; apart from that, he saw the first accused the day he packed and washed the car and the day he went to take the car. That aside, the time of the incident/parking a car to the time of the identification parade was short, less than a month. Thus, PW7 had an opportunity to remember the 1st accused well. In my unflustered view, the description of the assailant meets the test in Waziri Amani's case. Next is the evidence of PW21, who searched DW1s home and found a t-shirt with blood stains; exhibit PE9, trouser- jeans, and rubber shoes covered with sand; exhibit PE12, the items which 1st accused person admitted to be his. According to PW21, he seized them, and the seizure certificate was tendered in court as Exhibit PE16, in which, looking at it, the 1st accused person signed it, which means that the items were seized from him. All this constituted an assurance that the exhibit contained the items that the accused had in possession and had been seized by PW 21. Again, PW19, a cell leader who witnessed the search, corroborated 14 this evidence. Further, the evidence is corroborated by PW11, a Senior Government Chemist, who was assigned the duty to test the samples and investigate the responsible person who committed the murder. According to her, the blood from the t-shirt in exhibit PE9, which was seized from the 1st accused person, matches that of the deceased. This is per her her report in Exhibit PE11. In deed there is no explanation from the first accused person on how the deceased blood stain reached his t-shirt. Apart from that, there is evidence of the 1st accused caution statement, Exhibit PE2, recorded by PW5. As the law stands, the confessional statement is the best evidence because it comes from an accused who admits to having committed the offense. Nevertheless, the same must be voluntary and must provide a valid account. See the case of Muganyizi Peter Michael and Others vs. The Republic, Criminal Appeal No. 144 of 2020. Further, in the case of Joseph Stephen Kimaro and Another vs. Republic, Criminal Appeal No. 340 of 2015 (CAT- Unreported), the apex court had this to say; “...We take it to be trite law that for a confessional statement to be proof of the commission of an offense by its maker, it must not only have been 15 made freely and voluntarily but also be nothing but true.” In Flano Alphonce Masalu @ Sing and Others vs The Republic, Criminal Appeal No. 366 of 2018(CAT-Unreported), the court categorically stated that the court can rely solely on the accused's confession to convict him. For clarity the court held; “where an accused person retracts his confession, the court can convict him on the uncorroborated confession provided that it warns itself of the dangers of acting solely on such confession and if it is delighted that the confession cannot be but true.” With that knowledge in mind, it is now opportune to evaluate the weight of Exhibit PE2-caution statement of the first accused, as admissibility is one thing, and the weight attached to the exhibit is another. I had time to peruse exhibit PE2 to see whether the same answers the second issue. For clarity of what the first accused person confessed, part of his statement is quoted here under: ”tarehe 27/5/2020 majira ya saa 16:00hrs huko maeneo ya Mbezi juu mtaa wa Ndumbwi nikitokea nyumbani kwangu barabara ya kwenda baraza la mitihani ya Taifa nilikamatwa 16 na Polisi kwa tuhuma za mtu aliyepotea akiwa na gari. Baada ya kukamatwa walinipekua na kunikuta na simu mbili aina ya SAMSUNG moja mali yangu na nyingine ilikuwa si mali yangu …walinichukua pamoja na simu hizo hadi Kituo cha Polisi Oysterbay….. niliamua kuwaeleza askari ukweli kuhusiana na simu hiyo, kuwa mnamo tarehe 21/05/2020 majira ya mchana huko Mwenge nilikutana na mwenzangu aitwaye DENIS S/O URASA a.k.a PASUA na tukaenda sehemu wanayouza chakula na vinywaji na huko tulimkuta rafiki yake aitwaye SAID S/O MAHADHI akimsubili hivyo tukawa watatu SAID S/O MAHADHI … DENIS URASA akaniambia jioni ya leo kuna kazi nataka unisaidie kuifanikisha na akanieleza kwamba kuna gari ya dereva wa Uber au Bolt tunatakiwa kuichukua kwa nguvu na ni gari ya aina yoyote tutakayoliita … majira ya saa 18:00hrs tuliondoka wote watatu kwa usafiri wa bajaj kuelekea Mbezi Beach maeneo ya Makonde na kuteremka na kutembea kwa mguu kuelekea karibu na Hotel ya Mbezi Guarden ndipo DENIS S/O URASA @ PASUA akanieleza niite kupitia simu yangu ambayo inatumia application ya BOLT na nilifanya hivyo kwenye muda wa saa 19:00hrs hivi gari ilifika eneo tulipokuwa tunaisubiri ilikuwa ni gari ndogo nyeupe aina ya Toyota IST mimi nilikaa mbele DENIS S/O URASA @ PASUA alikaa kiti cha nyuma upande wa dereva na SAID S/O MAHADHI …tulipofika maeneo ya Mikocheni B dereva alisimamisha gari baada ya kumwambia asimame … ndipo DENIS URASA @ PASUA akamkaba shingo dereva na kusaidiwa na SAID S/O MAHADHI nami nilisaidia kumtoa dereva toka kiti cha dereva na 17 kumsukumia kiti cha nyuma ambapo DENIS URASA @ PASUA na SAID MAHADHI waliendelea kumpiga kwa kutumia vitu vyenye ncha kali. Dereva alipiga kelele kuomba msaada lakini baada ya muda alinyamaza ndipo DENIS URASA @ PASUA akaniambia niendeshe gari hilo, tulisogea mbele kidogo karibu na NABAKI AFRICA ambapo baada ya muda ilifika gari station wagon rangi nyeusi ndani yake kukiwa na watu watatu wanaume walishuka toka ndani ya gari hilo na kuja kwenye gari yetu ambapo DENIS S/O URASA @ PASUA na SAID S/O MAHADHI na walishuka toka kwewnye gari tuliyokuwemo walimshusha Yule dereva ambaye kwa wakati ule alikuwa taaban na kumwingiza kwenye gari station wagon na DENIS S/O URASA PASUA akaniambia niondoke na lile gari tulilolinyang’anya kwenda kulificha maeneo ya Kimara Baruti katika LODGE ya API FORREST. Niliendesha gari hilo hadi API FORREST na kuwakuta walinzi wawili ambao niliwaomba niweze kuliegesha gari hilo hapo na walinikubalia na kunieleza kuwa gharama ya kuegesha gari kwa siku moja ni sh. 1000/-. Nilipewa kitabu ili niandike namba za gari jina langu pamoja na namba zangu za simu kwa kuwa nilikuwa nimepewa maelekezo na DENIS URASA @ PASUA kuwa nisiandike jina langu sahihi pamoja na namba yangu ya simu niliandika jina la uwongo la THOMAS S/O KASHEL namba ya simu sikuandika lakini namba ya gari niliandika sahihi ambayo ilikuwa T.139 IST. Baada ya kufanya hivyo niliomba nilioshe gari na walinzi wakanieleza mahali bomba lilipo na nikaanza kuliosha ambapo ndani ya gari 18 palitapakaa damu nyingi nikiwa naendelea kuliosha mlinzi mmoja aliniuliza mbona gari lina damu nyingi? Nilimjibu kuwa gari ilikuwa imebeba samaki...tarehe 2/06/2020 majira ya saa hrs niliulizwa na askari kama ninaweza kuwaonyesha eneo tulipomfukia marehemu pamoja na gari lilipo. Niliwaeleza kuwa nitatoa ushirikiano kadri ya ufahamu wangu juu ya jambo hili. Niliwaeleza kuwa gari lipo KIMARA BAR na mwili wa dereva upo Mbezi juu karibu na ukuta wa ST. MARRY tuliongozana na askari hadi Mbezi juu mahali tulipoufukia mwili wa dereva na kuwaonyesha na mwili ulifukuliwa mbele ya Mjumbe wangu wa Shina aitwaye JOHN S/O? @ KICHWA. Baada ya kuufukua mwili huo nilirudishwa Kituoni na kutoa maelezo yangu. The above excerpt reveals that the accused person gave detailed information on what transpired from 21/05/2020 till 02/06/2020 when the deceased body was exhumed under his guidance. I so hold as the said confession is so thorough and elaborative that it provides a narrative of the accused personal facts as well as the sequence of events leading to the killing of the deceased that no other person except a perpetrator of the crime would have known. As he was in the deceased car, indeed, the statement contained nothing but the truth. It is a trite law that the best witness in any criminal trial is an accused person who freely confesses his guilt. See the case of Mohamed Haruna Mutupeni & Another vs R, 19 Criminal Appeal No. 259 of 2007 [2010] TCA 141 (4 th June 2010, and Paulo Maduka and four others vs. Republic; Criminal appeal No. 110 of 2007 (CAT-Unreported). Further, the caution statement corroborates the evidence of PW9 from fire and rescue forces who exhumed the body, PW21, PW7. That aside, there is other evidence of 1st accused’s oral confession before the police officer-PW4, where the first accused confessed to having committed the crime, and it is this confession that led to the discovery of the deceased body. It is a trite law that, where a confession is true, it can corroborate another confession against its maker. See the case of Mboje Mawe and 3 Others Vs. R, Criminal Appeal No. 86 of 2010 (CAT- unreported). In this matter, exhibit PE2 contains nothing but the true confession of the 1st accused before PW5. Hence, the same corroborates his oral confession before PW4. More or so, there is yet another evidence of Extrajudicial statement Exhibit PE 1 tendered by PW3. In this, there were objections that the same contravenes CJ rules as the same did not indicate the time and date the accused was arrested, the place he was arrested, the place he slept before being brought to the justice of piece, whether the accused was ready to give his statement voluntarily and that the same will be used 20 against him in future. The prosecution pointed out that the statement should be admitted, and its weight will be tested later. Notably, the recording of the extra-judicial statement is regulated by the Chief Justices' instructions, which contain detailed aspects that must be complied with before the extra-judicial statement is recorded. The details include One, the time and place of arrest; two, the place the suspect slept before the date the accused was taken to the Justice of the Peace; and three if he was made aware that the contents of the statement may be applied as evidence at the trial; and four, whether he wishes to make the statement on his own free will. The crux of complying with these instructions was underscored in different cases, including the case of Petro Teopha vs. R, Criminal Appeal No. 58 of 2012, Japhet Thadei Msigwa vs. R, Criminal Appeal No. 36 of 2008, for instance, in the case of Japhet Msigwa, the Court observed. “We think the need to observe the Chief Justice's instructions is twofold. One, if the suspect decides to give such a statement, he should be aware of the implications involved. Two, it will enable the trial court to know the surrounding circumstances under which the statement was taken and decide whether or not it was given voluntary". 21 I had time to peruse exhibit PE1, and glancing at the documents suggests that PW3, who wrote the statement, was unaware of CJ's instructions. She did not ask the accused the date and time he was arrested, where he was arrested, and where he slept before he appeared before her. She informed him that the statement would be used against him. Thus, on account of failure to comply with the instructions, the same cannot be used as evidence against the accused person; therefore, the same is disregarded. Next is the evidence of recent possession in which, as per the evidence of PW 13, when arrested, 1st accused person was found with a phone Samsung S8 Plus in color Exhibit PE 11, believed to be the deceased’s phone. The doctrine of recent possession states that when a person is found in possession of a property recently stolen or unlawfully obtained, he is presumed to have committed the offense connected with the person or place where the property was obtained. Nevertheless, 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 positively the property of the complainant; third, that the property was recently stolen from the complainant; and lastly that the stolen thing in possession of the accused constitutes the subject of a 22 charge against the accused. Further, the property must be the one that was stolen/obtained during the commission of the offense charged. Further, the fact that the accused does not claim to be the property owner does not relieve the prosecution of their obligation to prove the above elements. See the cases of Emmanuel Magembe Vs. R, Criminal Appeals Nos 262,263 & 264 of 2012, Salehe Mwenya and 3 Others v. R. (Criminal Appeal No. 66 of 2006 and Matola Kajuni Vs. R, Consolidated Criminal Appeals Nos 145,146 and 147 (all unreported). For instance, in the latter case, the court held that; “in order for the doctrine of recent possession to hold, the prosecution must establish, inter alia, beyond any doubt that the alleged recovered property which is the subject matter of the charge to have been duly identified and belong to the complainant”. In the instance case PW13, Assistance Inspector Moriss January testified to have arrested 1st accused with the deceased’s phone, and he seized that same. He tendered the seizure certificate, which was admitted as exhibit PE13; the phone was also identified by PW20 deceased’s sister, who mentioned the phone's IMEI number. As per evidence, the deceased was murdered on 21/10/2020. His phone was found with the first accused. In his caution statement in exhibit PE2, the 23 1st accused admitted to having been found in possession of the deceased phone Samsung S8+ whom they executed his death. Thus, I profoundly believe that the prosecution proved that the phone belonged to the deceased. All this evidence irresistibly points to the 1st accused person. The accused defended that he was arrested for his refusal to give the police officers the nude pictures he had taken without their consent. And that he was tortured on the day of arrest as he refused to give police officers the said pictures does not dismantle prosecution evidence as the same does not relate to this case. Apart from denying involvement in the commission of the crime, he only explains how he was arrested and forced to give police pictures. In the same vein, his contention that he was not the one who parked the car at Happy Forest Lodge, as the name recorded in the lodge’s register was Thomas Kisheri, is unfounded since he admitted in exhibit PE 2 that he was instructed by the second accused, not to write his actual name. Therefore, his evidence did not shake the prosecution's case. Henceforth, evidence of the trial against the 1st accused person is sufficient to find the 1st accused guilty of the offense charged with, and I convict him, as evidence points irresistibly to his guilt that he murdered Joseph Tiria Msakala @ Joseph Stubbon Tiria. 24 Coming to the second accused, DW2, the same was implicated by the first accused in his caution statement. The 2nd accused also confessed and gave his caution statement before PW21. Apart from that, no other evidence points to him as the perpetrator. As the law stands, regarding section 33(2) of the Evidence Act [CAP. 6 R.E. 2022], it is unsafe to base conviction on uncorroborated co-accused evidence since it requires corroboration as a matter of prudence. “Section 33(2) of the Evidence Act reads: - Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co-accused”. Thus, I will consider the 2nd accused’s caution statement to see whether the same can be relied on to convict him. Notably, the 2nd accused statement was admitted with objections that it was taken out of time and that it was involuntarily obtained through torture. Starting with the issue of torture, the court conducted a trial within a trial, looking at the evidence tendered by both sides and being guided by the principle under section 110 of the Evidence Act, which requires that whoever alleges the existence of certain facts is under the duty to prove the same; the prosecution has shown that the statement was given freely. 25 Concerning the issue of time, Section 50 (1) of the CPA states categorically that the period available for interviewing a person who has been taken under restraint is four hours, and it commences when he was taken under restraint in respect of the offense he is charged. In their evidence in trial within a trial, Pw1 and PW2 explained that the second accused was restrained for an inquiry file for the missing person and the file was PE 96/2020. This evidence is corroborated by PW1 Jackline Joseph Tiria, the wife of the deceased, who testified that after her husband went missing, she reported the matter to the police. Thus, at that moment and time, there was no investigation conducted against the 2nd accused about the murder charges. It was not until the accused was finally discovered that he was responsible for the murder, and based on that, he recorded his statement. (The discovery was made on 02/06/2020 at night.) In my profound view, PE 17 was not taken out of time, as prosecution witnesses explained plainly that after that discovery, they were conducting an investigation concerning the murder case. The time they extended was not more than eight hrs. Based on that reasoning, the relevant provision of Section 50(1) of the CPA was complied with. The follow-up question is whether a confession of the 2nd accused, exhibit PE 17, can be relied on to convict the 2nd accused person. The 26 trite law is that it is unsafe to rely on uncorroborated repudiated/retracted confession to base the accused’s conviction unless the court warns itself of the danger of acting upon such a confession and is fully satisfied that such confession cannot but be true. See the cases of Hatibu Gandhi and Others Vs. R [1996] TLR 12 (CA) and Dickson Elia Nsamba Shapwata and Another Vs. R, Criminal Appeal No. 92 of 2007(CAT- unreported). As alluded to earlier, the only evidence implicating the second accused person is his confession and that of the first accused person. Thus, before acting on his statement against him and the first and third accused, who are incriminated based on the evidence of co-accused. I find it imperative to establish to the court’s satisfaction whether what is contained in his statement, exhibit PE17, is true. Having gone through the said exhibit PE17, this Court is satisfied that its contents are nothing but the valid account of what he knows and participated in during the deceased’s execution as his narration is so detailed, ranging from his family background up to the time when he met with the co-accused and how they executed the alleged murder of Joseph Tiria Msakala @Joseph stubborn. (the deceased). For easy reference, the part of his statement is quoted here under; 27 “katika kutekeleza maadhimio yetu tukisaidiana ndipo bahati mbaya alikuja dereva ambaye alikuwa na afya sio nzuri tulipokuwa tukihangaika naye akafariki na ndipo tulipojishauri kwenda kumzika na kila hatua ilibidi tumkabidhi gari GODSON S/O aendeshe hadi mwenge kwani baada ya kukaba dereva alianza kutoa damu nyingi tukamuamishia katika buti la gari ndipo sisi tukauhamisha mwili katika gari lingine na kwenda kuuzika maeneo ya Mbezi Beach Jogoo maeneo” From the above excerpt, the words tulipokuwa tukihangaika nae akafariki na ndipo tulipojishauri kwenda kumzika connotes that whatever the accused did to the deceased led to his death, bearing in mind that, according to 1st accused’s confession, 2nd and 3rd accused were piercing the deceased with sharp objects. Therefore, this Court is satisfied and thus safely arrives at the finding that the second accused’s confession is nothing but the truth since such a detailed story could not come from a person who did not know about what had happened to the deceased. In my profound view, this evidence is sufficient and safe to convict him of the offense charged with. The 2ndaccused’s defense that he was arrested for having affairs with Afande Awadhi’s wife is an afterthought as the same does not relate with the case at hand. In the same vein, his allegations that he was beaten 28 could not be forgiven for the offense charged since, as per his allegations, someone’s lover bit him. That, aside from the accusations that he did not record the statement, has no leg to stand since his caution is too detailed on account of the alleged homicide. Indeed, such a detailed account in his confession could not have come from a person who did not participate in the commission of an offense. Coming to the third accused, apart from being mentioned by his co- accused in their caution statements, there is no other evidence implicating the third accused person in the commission of the offense. The glaring issue is whether the 3rd accused’s conviction can be solely based on co- accused proof of the 1st and 2nd accused statements. As alluded to above, regarding section 33(2) of the Evidence Act [CAP. 6 R.E. 2022], it is unsafe to base conviction on uncorroborated co-accused evidence since it requires corroboration as a matter of prudence. This sound principle was also enunciated in the decisions of the Court of Appeal in the cases of Abubakari Issa @ Myambo Vs. R, Criminal Appeal No. 34 of 2010 (CAT-unreported), Julius Charles @ Sharobaro and 2 Others Vs. R, Criminal Appeal No. 167 of 2017 (CAT-unreported) and the recent one of Nuru Venevas and 2 Others Vs. R, Criminal Appeal No. 431 of 2021 (CAT) Tanzlii, where the Court of Appeal roared 29 that, as a matter of prudence, the co-accused must be corroborated for the same to be safely relied on to base conviction on the incriminated party. Guided by the above authorities, I believe the second issue is answered in the affirmative against the first and second accused persons and in the negative against the third accused person. Lastly is the third ingredient as to whether the killing of Joseph Tiria Msakala was actuated with malice aforethought. Section 200 of the Penal Code, [Cap. 16 R.E 2022] illustrates what amounts to malice aforethought, including the accused’s intention to cause death or grievous harm to a person, whether such person is dead or not. That aside, there are various factors to be considered, as demonstrated in several cases, one of which is the case of Enock Kipela Vs. R, Criminal Appeal No. 150 of 1994 (CAT-unreported), where the Court of Appeal had this to say: ".... 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 30 part or parts of the body the blow were directed at or inflicted on, (4) the number of 17 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 attacker's utterances, if any, made before, during or after the killing, and (7) the conduct of the attacker before and after the killing. "(Emphasis supplied) With the above settled legal position, in the instance case, there is no doubt the accused persons’ act of piercing the deceased by using sharp objects in sensitive parts (head) (as per the evidence of PW17 that there were head injuries in the left, with the head skull broken, blood clotting in the brain head) proves that the force used made the deceased lose a lot of blood. PW7, the 2nd accused caution statement, also supported this evidence. This is a clear manifestation and proof that they intended to either cause him death or do him grievous harm, as there was no justification whatsoever for stabbing him for them to rob him of a car. Worse enough, they went ahead to bury the deceased body; such behavior cannot be tolerated in a civilized society. Hence, the third element is answered in the affirmative. 31 With the three elements established, I find the prosecution proved the murder charge against the first and second accused persons beyond reasonable doubt. I so find since the standard of proof beyond reasonable doubt does not mean beyond the shadow of doubt but a relatively high degree of probability as it was held in the case of Miller V Minister of Pensions [1947] ALL ER 372 - 373, speaking through Lord Denning on the degree of proof in criminal cases, where the Court observed: "That degree is well settled. It does not need to reach certainty but must carry a high degree of probability. Proof of beyond 14 15 reasonable doubts does not mean beyond the shadow of doubt...” Eventually, I found the first and second accused persons guilty of murder contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E 2019], now R.E 2022, and proceed to convict them accordingly. Regarding the third accused person, I find him not guilty of the offense of Murder contrary to sections 196 and 197 of the Penal Code, [Cap 16, R.E. 2002] now [R.E 2022] as charged, and I proceed to acquit him as I hereby do. I hereby order his immediate release of the third accused person from prison unless otherwise lawfully held. 32 MWANGA J JUDGE 11/12/2024 SENTENCE As this is a murder case, my hands are tied by my oath of office to uphold the Constitution and to respect the laws of the land. In our law on criminal offenses, there is only one penalty for the offense of murder, and that is death by hanging. On the premise that this Court has entered a conviction against the first and accused person, I hereby sentence the said 1 st accused person, GODSON LAURENT @ MZAULA, and the second accused person, DENIS ZEBEDAYO URASA @ PASUA, to suffer death by hanging until they die. MWANGA J JUDGE 11/12/2024 The right of appeal is explained to the accused persons. 33 MWANGA J JUDGE 11/12/2024 COURT: Judgment delivered at Dar es Salaam this 11th December 2024 in the presence of Cathbet Mbilinyi and Tumain Mafuru, State Attorneys for the Republic, and Michael Yohana Kibindu, Advocate for the accused persons. MWANGA J JUDGE 11/12/2024 34