HERON MAHOBA JUDGEMENT SINGIDA SIGNED

IN THE HIGH COURT OF TANZANIA (DODOMA SUB-REGISTRY) AT DODOMA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 129 OF 2020 THE REPUBLIC VERSUS 1. HERON YOHANA MAHOBA 2. DICKSON YOHANA MAHOBA 3. KHAMIS LETEMA KANDIRO JUDGMENT 01st November, 2024. HASSAN, J.: In terms of sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2019], the accused persons, one Heron Yohana Mahoba (1st accused), Dickson Yohana Mahoba (2nd accused), and Khamisi Letema Kandiro (3rd accused), have jointly and altogether stood charged with the offence of 1 murder of the one Merea Mahoba (the deceased). The particulars of the offence, as depicted in the information, read: Heron Yohana Mahoba, Dickson Yohana Mahoba, and Khamisi Letema Kandiro, on the 26th day of November, 2019, at Mkong’oni village in Bahi District within Dodoma Region, did murder one Merea Mahoba. A brief fact leading to the occurrence of this allegation shows that the late Mubi Mahoba Yohana and the deceased were spouses. The 1st and 2nd accused persons were the deceased stepsons. They were all living in the same village and relatively within the same neighbourhood. The late Mubi and his wife, the deceased, were in a minor misunderstanding about properties owned by the deceased, notably cows and goats. To deprive her of ownership, the late Mubi Mahoba colludes with his two sons (the 1st and 2nd accused) to kill the deceased. And then, after finishing her, they would share the properties among themselves. To execute their plan, they hired the 3rd accused, who, upon alliance with three of them, had successfully accomplished their mission by stabbing her to death while sleeping in her house on 26/11/2019. Initially, when the matter was filed in the High Court, a charge had comprised four (4) accused persons. Thus, apart from the three accused 2 persons above mentioned, the fourth accused was Mubi Mahoba Yohana (who was the then 1st accused), whose charge was later abated under Section 284A of the Criminal Procedure Act, Cap. 20 R.E. 2022. Therefore, deliberation of the matter proceeded with those three remaining accused persons only. When the matter was called up for plea taking and undertaking a preliminary hearing, the counsel for the 3rd accused person, one Khamisi Letema, raised a concern of insanity. Thus, the 3rd accused was subjected to Isanga Mental Institution for observation of his mental condition under Section 220 (1) (2) of the Criminal Procedure Act, Cap. 20 R.E 2019. Allegedly, if he was mentally fit during the time when the offence was committed. After a long wait, finally a report on the mental condition of the third accused was transmitted to the court. The same was prepared and signed by the medical officer in charge of the mental hospital, one Dr. Innocent Rwiza Mwombeki (MD, MMED, MPH), on the 18th day of March, 2020, from Isanga Mental Institute. 3 The report shows that the accused person, one Khamis Letema Kandiro, was sane during the time when he committed the alleged offence on the 26th day of November, 2019. The said report was received, read over to the parties, and consequently, it was admitted and endorsed by the court to form part of the records. Following receipt of such a medical report, yet again, the defence counsel for the 3rd accused resolutely requested that the inquiry be conducted in compliance with Section 220(3) of the Criminal Procedure Code, [Cap. 20 R.E. 2019]. Thus, the inquiry as to the mental condition of the third accused was conducted. Two witnesses were called to prove the same, while the prosecution had none. After hearing in the ruling, the 3rd accused was pronounced to be mentally fit. Subsequently, on 14/07/2023, the matter was staged for plea taking and preliminary hearing. The undertaking was completed, and all three accused persons, including the 3rd accused, by their own words, pleaded not guilty to the charge after it had been read over and well explained to them in their language, that is, Kiswahili. 4 Therefore, moving forward to prove their case, prosecutions have summoned eight (8) witnesses, namely: (1) Grace Hamisi Motole (PW1), (2) Adam Kutoka Bahati (PW2), (3) Mazengo Chigwala Makoa (PW3), (4) H. 8604 D/C Ali Shabani Makia (PW4), (5) Assistant Inspector Boniface Kinyunyi Chacha (PW5), (6) Mgeni Ally Hamadi (PW6), (7) Hon. Jamila Juma Mkabala (PW7), and (8) Doctor Honesty Kacimir Kasasa (PW8). Also, the prosecution tendered two exhibits, to wit, exhibit P1 (cautioned statement of the 3rd accused) and exhibit P2 (report for postmortem examination). Whereas, on the other side, all accused persons defended themselves with no witness to call and exhibit to tender. Summarily, the testimonies for both parties were as follows: PW1: Grace Hamisi Motole; in her sworn evidence, she testified that she lives at Mayamaya village, Zamayele division, Zanka Ward, within Bahi District in the Dodoma Region. And that she lives with her three children, two girls and one boy. She further stated that she remembered that in November 2019 she received two guests in her house. One was her brother Khamis Letema from Segala village, and the other was his friend known as Heron. 5 PW1 stated further that she asked her brother Khamisi what was the purpose of their trip. In response, he said that they went to teach choir (kwaya) in the church as well as to perform construction works. Also, PW1 testified further that following such introductory remarks, she welcomed them into her house. PW1 went on to state that, after that introduction, Khamisi asked her to allow them to remain there for three days. Thereafter, they will go back to their respective villages on the third day. She further testified that, normally, Khamisi and Heron used to leave the house in the morning hours, and they would return back late at night around 2200 hours. About their daily routines, PW1 stated further that, in their daily activities, they normally attended a church in the evening. And that, they followed that schedule for two days, and on the third day, they went back to the house very late at night around 0200 hours; that was on 26/11/2019. She proceeded that, when they arrived in the house, they knocked on the door and asked for a bucket of water to wash themselves. And later, they went to sleep. PW1 went on testifying that, at around 0500 hours in the morning, she was awakened by her great-mother, who then informed her about Merea’s murder. Explaining further about Merea, PW1 stated that Merea is Heron’s 6 stepmother. PW1 continued; following that news, she prepared herself to attend the funeral, and she also asked his brothers Khamisi (3rd accused) and Heron (1st accused) to go with her to the funeral. However, Khamisi Letema refused, saying that for the past three days he had been away from his kids. So, he wanted to go back to his village. Testifying about Heron, PW1 stated that she also asked Heron to remain so as to attend the funeral, but he was very hesitant. And about his attendance, Heron informed her that he was worried that people might suspect him of that murder because he had an inheritance conflict with the deceased. However, persistently, PW1 insisted Heron attend the funeral because the deceased was his stepmother. Therefore, seeing that the 1st accused agreed, and altogether they went to the funeral at about 0900 hours. Testifying further on the situation after they left the house, PW1 stated that when they left her house, the first accused was very nervous, saying that he might be suspected of that murder case. However, PW1 insisted on going, and she also tried to cool him down, though he was still very hesitant to go. PW1 added that, finally, they went to the funeral, and while they reached there at about 1400 hours, police officers approached them and 7 arrested Heron (1st accused). And that, he was handcuffed, and they took him to their vehicle. Moreover, with respect to the deceased (Merea), PW1 testified further, having seen the deceased in her house, and at that time, she had already died. Testifying on the deceased condition, PW1 averred that the deceased was stabbed in different parts of her body, including the breast and head. Additionally, PW1 also identified Khamisi Letema, the 3rd accused in the dock. She had also identified Heron, the 1st accused, in the court dock. When cross-examined by learned counsel for the first accused, Ms. Lilian Kimaro, PW1 maintained her words that it was true that Khamisi Letema went to her house with Heron. She also stated that, when they arrived at her house, firstly, she did not know Heron, but she understood him while they were in her house that Heron’s father is Mubi. PW1 admitted to having not mentioned in her examination in chief that Heron’s father is Mubi. She also admitted a statement sheet shown to her by defense counsel that it is her statement and that it comprises what she had stated at the police station. Further to that, PW1 also admitted that there is nowhere in her statement where she stated to have given a bucket of water to Khamisi 8 and Heron in order to wash themselves on the third night of 26/11/2019, when they went back to the house. Moving forward, PW1 also admitted that it was true that she did not say in her statement that she cooled Heron after they had been informed of Merea’s death. She also admitted that she did not mention in her police statement the time at which they arrived at the funeral. Similarly, she admitted to having not mentioned in her statement where the deceased was stabbed. Though she acknowledged that, a statement shown to her is her statement, which she recorded at the police station. Thereafter, under Section 164(1) of the Criminal Procedure Act, Cap. 20 R.E. 2022, PW1 tendered the said statement and the court marked it as exhibit DE1. Furthermore, PW1 also accepted that, in her statement, there is nowhere she stated to have known the deceased. Though she insisted that it was her stepfather’s wife by the name of Tatu who informed her about Merea’s death. However, she admitted not to have mentioned those facts in the statement, which she recorded at the police station. When she was asked about Heron, PW1 admitted not to have mentioned him in her written statement that he was the deceased’s stepson. 9 Similarly, PW1 retorted further that she was informed by Heron that if they go to the funeral together, people will suspect him to have killed the deceased. Moreover, PW1 also admitted that in her statement she did not mention that she had any relationship with the deceased. Adding to that, she admitted that, before, she did not know that Heron was a stepson of the deceased. Again, she accepted to have not mentioned in her evidence in chief the distance from Zamayelo village to Mgongokize village. She, however, confirmed that her house is in Zamayelo village and that she lives there. Questioned further about Zamayelo, she admitted that to reach Zamayelo, one has to pass through Mgongokuze village, and the distance from where she lives to Mgongokuze village is about 1½ hours walking distance. Queried on the distance from Mgongokuze village to where the crime was committed, she alleged the distance is about 1½ hours walking distance. Responding about the funeral, PW1 stated that they went to the funeral by foot, and it was daytime when they arrived, and the sun was 10 lighting. She added that, though the road to the funeral was not very good for the motorcycle, it passed with difficulties. She further stated that she left her house at 8:00 hours, but she did not remember the time that they reached the funeral; she remembered that they reached it in the afternoon hours. When PW1 was asked why she went to the funeral with Heron, she responded that, though Heron was a stranger, the deceased was his stepmother. About Khamisi Letema, PW1 has stated further that she knows his father by the name of Letema. And that her father and Khamisi’s father are relatives. PW1 continued to explain that she recorded her statement at the police station in January 2020 after she was arrested by police officers. She also admitted that she did not make her statement of her own free will because she was afraid. Moving forward, when she was cross-examined by learned counsel for the 3rd accused on the issue of the truthfulness of her statement, she stated that all statements she made are true. In rejoinder, PW1 stated further that she was worried when she was arrested by police because she had never been arrested, and that was her 11 first time. Finally, PW1 stressed further that the incident took place on 26/11/2019. PW2: Adam Kutoka Bahati; in his sworn evidence, he testified that he lives at Mkong’oni village, Zanga division, Bahi District. And that, in July 2019, Merea (deceased) went to his house and asked him to raise her cattle. PW2 testified further that during that time, he was with his mother alone. Therefore, following that request, he started to raise her cattle upon agreement that, after every one year, she would give him one female goat. PW2 went on to testify that, on 26/11/2029, he was at his home and the deceased brought them food. They ate and later went to sleep. At that time, PW2 went to sleep together with Erasto Sebu, and the deceased also went to sleep. PW2 explained further that later at night, they heard a voice from the deceased's house. Following that voice, they attempted to go out, but they realized their house’s door was closed from outside by using a piece of wooden log. Seeing that, they started to push the door, and at last, it opened, and they went outside where a wooden piece existed. 12 PW2 stated further that, after they got out, they saw two people who were running away to the bush. Seeing that, they went to see the deceased first and found out that Merea was cut by a machete at her backside and on her arm, and she had already died. PW2 explained further that, with that condition, they went to call their grandfather, Mr. Mubi. Mubi arrived at the crime scene with his first wife, and he started to call for assistance. Finally, PW2 stated that later police arrived and recorded his statement. When he was cross-examined by defence counsels, PW2 stated that the deceased was living at Mkong’oni village, and he lives at Mkong’oni village too. He also stated that the distance from Zamayelo village to Mkong’oni village is about 2 hours walking distance. And from Zamayelo village to Mkong’oni village, the road is only accessible by motorcycles, not vehicles. PW2 also stated that, on 25/11/2019, he sent cattle for feeding close to their house, and it was sunny. He continued to state that, on 26/11/2019, he went again to feed cows, and the weather was also sunny. And thus, he returned home the following day after the incident had occurred, which was on 27/11/2019. He further insisted that, on the fateful date, he had slept with Erasto, and they heard a shout for help (yowe). 13 When he was queried, he mentioned the distance from where they slept to the deceased’s house. PW2 admitted that he did not indicate the distance from where they slept and where the deceased slept. Also, he admitted that he did not say that they looked outside the house while their house door was closed/blocked from outside. He also admitted that in his evidence, he did not mention the distance from where he slept to the place where he saw two people running from the deceased's house to the bush. Furthermore, PW2 alleged that he has indicated in his evidence that he saw those two people by using moonlight. Also, he does not understand if there was any conflict between the deceased's family and the deceased herself. Adding to that, PW2 admitted further that he neither understood those people who were running away from the deceased's house nor did he mention their physical appearance. PW3: Mazengo Chigwala Makoa; in his sworn evidence, he testified that on 26/11/2019 at about 0521 hours, he was in his house sleeping. After a while, he heard a shout for help (yowe); thus, he went out to listen to where the call came from. And he instantly realized that it was coming from Mr. Mubi Mahoba and his two children, Juma Mahoba and Dickson Mahoba. But his third son, Heron Mahoba, was not present. Though, 14 during that time, Heron Mahoba was also living with his parents. Seeing that, PW3 asked what had happened, and he was informed that Merea Mahoba had been murdered. PW3 continued to testify that, following that news, he went to look at Merea’s house, and he saw the deceased with injuries in the different parts of her body. And by seeing that, he made a phone call to the police station for notification. PW3 further stated that he decided to take such action to call the police because of his position as 10 cells leader. Explaining further, PW3 stated that on the following day, that is, on 27/11/2019, police and the doctor went to examine the deceased’s body. Adding to that, he mentioned that the deceased was a wife of Mubi Mahoba, and he understood that there was a conflict about property between Mubi Mahoba and his family. Testifying further about Mubi Mahoba’s family, PW3 pointed out that Mubi Mahoba had two wives, and out of them, Merea Mahoba had no child, whereas another wife has two kids. He stated further that the other sons of Mubi Mahoba, including Dickson, Juma, Heron, and Mjenda Mahoba, lived in their house. Recounting their conflict, which he mentioned earlier, PW3 15 stated that their conflict was basically between Mr. Mubi and his wife about the division of cows. He ended up his testimony by stating that, after police and doctors had completed their activities, they handed over the deceased’s body for a funeral. During cross-examination, PW3 stated that he was a 10-cell leader of Chigongo, and he did not know who killed Merea Mahoba. He responded further that he had no relationship with the deceased. PW3 acknowledged having been involved in resolving the conflict between Mubi and Merea as part of the family. PW4: Ali Shabani Makia affirmed and stated that, initially, his force name was H. 8604 D/C Ali Shabani Makia. But now, his force name has changed to PF. 22327, Assistant Inspector Ali Shabani Makia. His working station is Mpwapwa District in the Ward of Chipogolo, where he is working as a ward inspector. He further stated that, at Chipogolo Ward, his duty is to receive complaints and forward them to the police station. PW4 testified further that, before, he was working at Bahi Police Station in the investigation section within the department of criminal investigation as an investigator. He went ahead to testify that his duties were 16 to receive crime reports, to investigate criminal offences, and to send the perpetrators to court. He further testified that, on 27/11/2019 at 1000 hours, while they were in the office, they were instructed by OC-CID--ASP Juma Solomon of Bahi to attend a murder case at Mkondai village. Upon such instruction, they went to the crime scene, but while they were on the way, they were further informed that the incident had happened at Mkong’oni village. And thus, they went to Mkong’oni Village and arrived at the crime scene together with the OC-CID and a doctor. PW4 continued to testify that it was a rain session. Hence, they spent a long time on the road due to the traffic impediments caused by rain and water ponds. He also stated that, at the scene of the crime, they met with neighbors, including one, Mr. Mubi Mahoba, and his children. They also met police officers who arrived from the nearby police station, including D/C Erasmo and PC. Silvanus. He continued that they entered into the house of the deceased and saw the deceased’s body lying on the mattress. PW4 also testified that they checked the crime scene to observe if there were any weapons. They saw the deceased with a wound on the chest and 17 on her back. He continued to testify that he was informed by OC-CID that the murder was caused by the deceased’s two stepsons, who are Dickson Mahoba and Heron Mahoba; thus, he was instructed to arrest them. Therefore, he arrested them and took them to the police vehicle. PW4 went ahead to testify that after they had arrested the culprits, they went back to Bahi Police Station. And that, they arrived at Bahi Police Station on 28/11/2019 at about 0600 hours. He further testified that, from the crime scene to Bahi Police Station, they faced a number of obstacles caused by rain and water ponds. And because of those impediments, there were moments when they were forced to stop to shade themselves from rain. PW4 stated further that he did not know the names of those rivers, but he remembers that they stopped on the way for rain to pass. He therefore stressed that they spend about two to three hours to let rain pass. PW4 testified further that they left the crime scene in the evening on 27/11/2019 at about 1800 hours. And that, apart from rain, he confirmed that there were no other challenges that faced them on the way. Testifying about what went on at Bahi Police Station, PW4 has stated that they handed over the suspects to the crime room, searched, and then kept them in custody. He went on to testify that they had arrested two suspects, who are 18 Heron Mahoba and Dickson Mahoba, and thus, he identified them in the dock by pointing his finger to the accused persons. PW4 was cross-examined by defence counsels, and he admitted that, in his evidence, he did not mention the telephone number of a person who gave them information. PW4 further admitted to having gone to the crime scene by vehicle, but he did not mention at what time they left Bahi Police Station to go to the crime scene or at what time they reached there. He also admitted that he did not indicate the type of vehicle they were using, but he insisted on having mentioned that they used an open-deck car. PW4 acknowledged further that he did not mention the plate number of the vehicle that they used. Additionally, he cemented that they left the crime scene at 1800 hours. Furthermore, PW4 confessed to having not testified as to how many police officers were there at the crime scene and at what time a doctor had conducted an autopsy. Explaining his role at the crime scene, PW4 stated that his duty was to keep security and record witnesses’ statements of a person who witnessed the postmortem examination. He also stated to have recorded the statements of Erica and Gaspa. 19 Describing the conflict, PW4 testified to having heard that there was a conflict between the deceased and her stepsons concerning the division of cows. He testified further that he understood the existence of conflict from the witness whom he had interrogated. Finally, he testified that, though he has been living in Dodoma since 2010, he is not familiar as to when rain normally starts in Dodoma. However, during material date, it was raining heavily. When PW4 was quizzed about the alteration of a crime scene sketch map, he elucidated that he did not mention in his evidence that he participated in amending a crime scene sketch map. PW5: Boniface Kinyunyi Chacha, sworn and testified that he is a police officer from Bahi Police Station. He is working in the Department of Criminal Investigation. And thus, his current rank is Assistant Inspector of Police, with force number PF. 21782. He went ahead to testify that he started to work as a police constable and was promoted to sergeant and later to assistant inspector. PW5 went on to testify that, in December 2019, he was a police constable with force number H. 3352 D/C Boniface. And coming on 11/12/2019 around 1000 hours, he was at Bahi Police Station. During that time, they were called by OC-CID Solomon with his fellow police officers. It 20 follows that OC-CID-Solomon instructed them to go to Chamwino with Inspector Kazungu to arrest a suspect of murder. Following the instruction, PW5, together with other officers, collected their tools and headed to Chamwino from Bahi Police Station. He testified that they went to Izava village, which is located within Chamwino District, by passing through Dodoma town. PW5 also stated further that a suspect to whom they went to arrest is called Khamis Letema. They went there with his co-suspect by the name of Heron, who was in police custody at Bahi. And that a suspect whom they went there together knew where the suspect whom they intended to arrest lived. Furthermore, PW5 testified that information that Heron knows where his co-accused lived was revealed by OC-CID during briefing. Therefore, they used a police vehicle together, and they reached Chamwino Police Station at around 1100 hours. He added that, from there, they reached Izava village at about 1700 hours. While they were at Izava village, they started to look for the suspect, but they were informed that he had left for Segara village, which is also within Chamwino District. 21 Therefore, they went to Segara village and arrived there around 1900 hours. At Segara village, they were informed that a suspect who they were looking for had left for Gangoro village. PW5 continued to testify that because it was a rainy season and it was impossible to use a vehicle to go to Gangoro village, thus they left Heron in the vehicle with other police officers. And that, Heron and other villagers gave them details of the whereabouts of the suspect and as to how he looked like. Thus, they took their weapons, and by using three motorcycles, they followed the suspect in the house of his paternal uncle, where they had been directed. He testified further that, from there, they went to the house and found the suspect, Hamis Letema, in the backyard outside the house. When a suspect saw them, he tried to run away, but they managed to arrest him. And thus, after arrest, they introduced themselves to him because they wore casual clothes. PW5 continued; after arrest, they informed him that he was suspected for the murder case of one Merea Mahoba at Mkongoni village. Thereafter, they took him back to where they left their vehicle at Segera village. He further testified that, while they were on their way back, before they reached Segara village, they firstly passed through their fellow police 22 officers, who were waiting for them with vehicles. After arriving, they went to Izava village to fix the puncture on their vehicle. After such adjustment, they moved on with their journey through Itiso and Cheneni villages within Chamwino District. He further stated that, when they left Izava village, it was around 2100 hours. After that, they continued their journey through Zamahero village within Bahi District, where they reached a police roadblock; it was around 2300 hours. At that point, they stopped for some time and later continued with their journey by passing through Dodoma Town. He went on testifying that they arrived at Dodoma town at midnight, and they stopped to have food, and thereafter, they left Dodoma town for the Bahi police station. Though PW5 admitted to having forgotten a specific time, he knew it was late at night. Thus, they arrived at Bahi around 0500 hours on 12/12/2019. And at Bahi, they kept a suspect in the lockup, handed over the weapons, and left. In the end, PW5 was able to identify the 3rd accused person, one Khamisi Letema, in the court dock. When he was cross-examined, PW5 explained that the distance from Dodoma town to Bahi is about 1½ to 2 hours driving. Although he admitted to having not mentioned the distance from Bahi to Izava village and further the distance from Izava to Segara village. More so, he admitted not to have 23 mentioned the distance from Segara to Gongoro village and vice versa, and also the distance from Gongoro village up to the place where they got a puncture near Segara. And even the time they used to fix the puncher. PW5 testified further that he had understood Khamisi Letema after he was arrested, and thus, he has never employed him to cultivate in his farms. Additionally, he admitted that he did not mention any signs that led them to identify Khamisi at the place of arrest. In rejoinder, PW5 reiterated that because they used motorcycles to go to the village where the suspect was arrested, it is thus obvious that they returned with the same motorcycles. PW5 admitted further that he did not mention the names of other police officers who participated in the arrest, but he had mentioned that they went to arrest the suspect under the leadership of Inspector Kazungu. PW6: Mgeni Ally Hamadi affirmed and stated that she was a police officer, but she has retired since July 2022. She stated further that, during her tenure, her force number was WP. 2265 D/SSTG Mgeni. She went on to testify that, in December 2019, she was having the rank of sergeant, with force number 2265 D/SGT Mgeni. And during that period, she was working 24 at Bahi Police Station as an investigator in the Department of Criminal Investigation, where she worked for four years. Testifying further, PW6 stated that on 28/11/2019 at 0800 hours she was in her office dealing with her normal work. At that time, she was called by OC-CID, and she was assigned a case file with No. Bahi/IR/614/2019 about a murder case. After that, she acknowledged receipt of the said file, and then she read it over only to realize that there were two suspects who had already been arrested. Thereafter, PW6 took one suspect by the name of Heron Yohana Mahoba from custody in order to record his cautioned statement in connection to the alleged offence. However, she testified further that, before recording the same, she took the suspect to her office. And at her office, PW6 first introduced herself to the suspect, and after that, she informed him of the purpose of recording his cautioned statement. Moreover, she asked the suspect if he was ready to give his statement, and he responded that he was ready. PW6 further testified that she informed the suspect of his rights; thus, he has the right to call his relatives, friends, or advocates while he gives his 25 statement. Also, she also asked him if he could record his statement, and he responded that he could not read or write. After that, PW6 started to record his statement after the suspect allowed her to record, and it was around 0950 hours. And that, the suspect informed her that he had nobody to witness while his statement was recorded. After she finished the record, he signed his statement. She also testified that in his statement, Heron confessed to having participated in the murder together with his father and his young brother, Dickson Yohana Mahoba. More so, PW6 added that Heron had also mentioned Khamis Letema, who had actually murdered the deceased. And that, Heron was requested by his father to find someone who could kill the deceased. PW6 testified further that Heron also explained that Khamisi agreed to murder Merea in exchange for one cow. Testifying about the accused's plan to kill, PW6 testified that Heron informed her that they planned to accomplish their mission, and they were able to kill Merea as planned. She went on to identify a cautioned statement of Heron, which she had recorded, though the same was rejected for admission. 26 Moving ahead, PW6 stated further what she was told by Heron that it was July 2019 while he was at his village doing his construction works when his father, Mubi Yohana Mahoba, approached him only to ask him to look for a person who can kill Merea (the deceased). It follows from that request that Heron accepted the demand from his father, but during that time, he did not take any action. Later on, after about two months, his father, Mubi Yohana, approached him once again to remind him of the task ahead of them. During that second time, Heron promised his father that he would implement the mission. And that, the agreement was that if the mission is accomplished, a killer will receive two cows of the Maksai type. Thereafter, PW6 proceeded to testify what she had been informed by the 1st accused that, to look for a killer, he went to Segela Bombani village, which is within Chamwino District, to look for one Khamis Letema. PW6 continued to testify that, in his journey, the 1st accused was able to meet Khamisi Letema (the 3rd accused), and after he introduced to him his purpose, he agreed right away, and thus they left together to Heron’s village, where they met with the 2nd accused, one Dickson Yohana Mahoba. PW6 testified further that, according to Heron’s confession, they sat together, four of them, in a meeting to plan how they could accomplish their 27 mission. Finally, they agreed that the 3rd accused would kill the deceased by knife, and after meeting, they all left because the deceased was out of the village. PW6 testified further that Heron went on to inform her that, on 26/11/2019, Khamisi Letema and Heron Yohana went back to the village for the purpose of killing Merea (the deceased). Thus, the 1st accused and the 3rd accused went where the deceased lived, and it was in the evening. Seeing that, they decided to hide close to a place where the deceased lived. The 1st accused went on to narrate to PW6 that, at midnight, the 1st accused had shown the 3rd accused the house in which the deceased slept. And that, the deceased’s house was closed to another house where young men were sleeping. PW6 went on to state that, knowing that their safety might have been at stake, both the 1st accused and the 3rd accused decided to go to the youth’s house and blocked the entrance door with a wooden stick in order to block their exit from inside. After that, they went back to the deceased's house, and the 3rd accused kicked open the entrance door. The 3rd accused went inside and stabbed the deceased with a knife. She proceeded that, at that moment, the 1st accused had remained outside the deceased’s house looking for their safety. After he finished killing, the 3rd accused went out of the deceased’s house with a knife in his hand. Thereafter, they both ran 28 away and went to sleep at Zamayelo village in the house of the 3rd accused’s sister, one Grace Mhoteli (PW1). Moving ahead, PW6 also testified to what she was informed by the 1st accused that, on the next morning after the incident, while they were at Grace Mhoteli’s house, they received news about Merea’s death. And that, the news came from one woman who is living within Grace’s neighborhood. Following that news, Khamisi Letema left Zamayelo village, going back to his village. Whereas, at last, Heron attended the funeral. In the funeral, the first accused explained to have met with a lot of people, including police officers. Then, a family meeting was convened by police officers and village leaders, and after the meeting, Heron, Dickson, and Mubi were taken to Bahi Police Station for investigation. Furthermore, PW6 testified that she interrogated Heron (1st accused) as to why he decided to kill his stepmother. On that, the first accused responded that there was a conflict about cows between the deceased and his biological father, Mubi Yohana Mahoba. He explained further that before they decided to take that action, they convened a number of family meetings that were aimed at settling their conflict. However, at the end, the deceased took her share, which was about 10 to 12 cows. PW6 went on to testify that 29 she was well-versed by the 1st accused: that, as a result of such distribution of cows, Mubi Yohana Mahoba was unsatisfied, and thus, he said if Merea (deceased) dies, all cows will belong to him. Furthermore, PW6 testified that, on 12/12/2019 at about 7:30 hours, she was at Bahi Police Station, and during that time, she was assigned a duty by OC-CID to interrogate Khamisi Letema, the 3rd accused, who was in the police lockup. Thereafter, she took him from the lockup for the purpose of recording his cautioned statement. However, before she started to record, she introduced herself to him and then informed him that she wanted to record his statement and whether he was ready. PW6 said, instantly, the 3rd accused responded that he was ready. Consequently, PW6 informed the 3rd accused that he had the right to call his relatives, friends, or lawyer when his statement was taken. Similarly, PW6 also explained to the suspect his rights that he can write his statement himself. But he responded that she can write the statement on his behalf, and thus, he had no friend, relative, or lawyer to attend the interrogation, and therefore, he could give his statement while he was alone. After that, the 3rd accused signed the cautioned statement, and she also signed it. 30 With respect to Khamisi’s cautioned statement, PW6 testified that after she completed the caution, she started to record his statement by interviewing him. And in the end, she asked the accused to read his statement, but he requested that she read it for him. The cautioned statement was read over to him, and he accepted it to be his correct version. After that, the accused signed, and PW6 also signed on every page of the statement. In the end, PW6 testified further that after she finished recording the statement of the 3rd accused, and since he had mentioned another suspect, one Mubi Mahoba, then Mubi Mahoba was arrested and interrogated. However, his case has been abated. Finally, PW6 testified that she prepared a police case file and submitted it to the regional police commander for his further action. When cross-examined by the defence counsels, PW6 admitted that she did not ask the 3rd accused about the distance from the deceased’s room to the room in which other youth were sleeping. Also, she did not ask the accused person about the means of transport that they used from the crime scene to Grace’s house. Similarly, PW6 admitted not to have asked the 3rd accused if Grace has a relationship with Merea. PW6 also admitted to having 31 said in her evidence in chief that during the incident, Khamis went inside the deceased’s house, and later he came out with a knife while Heron was waiting outside. She also approved that, as per Khamis’s cautioned statement, it was Heron who went out of the deceased’s house with a knife in his hand. PW6 also admitted that there is a contradiction between her evidence and what was recorded in the cautioned statement of Khamisi Letema as to who came out of the deceased house with a knife in his hand during the fateful date. She also admitted that, in spite of that contradiction, she did not conduct further investigation as to who had a knife because she was not able to seize the knife. Furthermore, PW6 testified that, in this case, she was an investigator in charge, and she was assisted by D/C Safari and D/C Idrissa. Asked about the 2nd accused, PW6 testified that he was interrogated by D/C. Safari. She also admitted that, in her evidence, she did not say that the 2nd accused had been interrogated because she did not record his statement. She also acknowledged that she has not mentioned anything that the 2nd accused had informed D/C. Safari. Explaining further about her role in this case, PW6 stated that her duty as an investigator was to conduct an investigation, arrest the suspect, and 32 testify in the courtroom. She proceeded to state that the evidence that she has testified to is based on information that she has been given by the accused persons and other investigations that she has conducted. She added that she did see the need to take fingerprints. Rejoining on what she has testified, PW6 stated that the accused persons told her that they used a knife to stab the deceased, and after the incident, they buried it in the forest. She also reiterated that she knew the fact that the 3rd accused came out of the deceased's house with a knife in his hand from the 1st accused person. Likewise, she also stated that, given the fact that it was the 1st accused who came out of the deceased’s house with a knife in his hand, she knew that from Khamis, the 3rd accused. Finally, Pw6 stressed that the role played by the 1st and 3rd accused persons in this charge of murder was to enter the deceased’s house, stab her, and leave the scene instantly. The 3rd accused’s cautioned statement was admitted in evidence and marked as exhibit P1. PW7: Jamila Juma Mkabala affirmed and stated that she is a Primary Court Magistrate stationed at Bahi District. Her daily responsibility is to conduct trials for the cases that fall under her jurisdiction. PW7 testified further that sometimes she works as justice of the peace for cases in which 33 she ought to record confessions. She also stated that on 12/12/2019, at about 1250 hours, she was in her workplace at Bahi Primary Court. And during that time, D/C Ali approached her with a murder suspect by the name of Heron Mahoba. Thus, D/C Ali informed PW7 that the suspect is accused of a murder case and he wanted to confess. PW7 went on to testify that, at first, the police officer went alone while the suspect was in custody. And thereafter, she asked him to bring the suspect inside her office. She proceeded that, after the suspect had entered her office, she asked the police to leave the office in order to remain with the suspect alone. Thus, he left the office, and she remained with the 1st accused alone. PW7 then introduced herself to the 1st accused, and she further informed him that she was going to record his statement, which could be later used as evidence in the High Court. She also informed the 1st accused that he was free to give his statement or not give it if he did not want to. PW7 continued to testify that she also asked the 1st accused if he understood Kiswahili, and he responded that he understood. She further asked the first accused if he had any wounds, and he answered that he did not. Consequently, she recorded his statement inside her office, which was 34 in proper shape. PW7 testified further that, at that time, the 1st accused’s mental condition was normal, and he was able to follow their communication properly. PW7 also testified that she asked the 1st accused where he came from when he approached the court, and his answer was that he came from Bahi Police Station. And the first accused informed her further that he had been arrested at Mkongoni Village. PW7 further asked him if he was willing to give his statement, and he responded that he wanted to record his statement. As a result, PW7 signed a form, which is used to record the suspect’s confession statement. PW7 went on testifying that, after those steps, the 1st accused started to narrate that he was asked by his father to look for a person who can kill his stepmother, Merea Mahoba. Therefore, the 1st accused was able to secure the 3rd accused from Chamwino District. The 1st accused continued to state that it was his father, Mubi Yohana Mahoba, who paid the killer (the 3rd accused). Eventually, PW7 identified the 1st accused in the court dock, and she also identified a confession statement of the 1st accused, which she recorded. 35 PW7 went ahead to testify that, when she was recording the 1st accused’s confession statement, he informed her that, subsequent to his father’s request to look for an assassin, he decided to find Khamis Letema, the 3rd accused from Chamwino District. And after he was able to engage the 3rd accused with the task, they completed the mission by killing the deceased (Merea). PW7 added that, although the 1st accused has not explained in detail about the killing, much detail was given by the 3rd accused in his confession. However, the alleged extrajudicial statement for the 1st accused was rejected for admission. Moving forward, PW7 testified further that on 16/12/2019 at 1300 hours, while she was in her office, she was again approached by D/C-Safari. D/C Safari introduced a suspect who wanted to write his extrajudicial statement for the same alleged offence of murder. With that introduction, PW7 directed other police officers to leave her with a suspect, one Khamis Letema, in the office. She continued to testify that, because she heard about Khamis Letema in another confession, she felt it was not safe to be with the suspect in the office alone. Therefore, she called Siwajibu Chatanda, a court security guard who did not wear a uniform, to sit with her in the office. 36 She went on testifying that, on that day, she used her office to record his confession. And thus, the mental condition of the suspect was good since they were communicating normally. She added that she did not observe any mental defects in the suspect, whom she checked by her own eyes and also by asking him, and he confirmed that he had no physical problem in his body, and likewise, he had nothing to complain about. Going forward, PW7 testified that she then asked the 3rd accused if he understood Kiswahili, and he answered positively that he understood Kiswahili. PW7 also added that, in their conversation, they were speaking Kiswahili. To ascertain more, PW7 asked him where he came from and where he slept. The 3rd accused responded that he came from Bahi Police Station, and he slept at the same police station. She also asked him where he was arrested. The 3rd accused answered that he was arrested within Chamwino District, but he failed to recall the village. Ascertaining about his readiness to confess, PW7 went on to testify that she also explained to the 3rd accused that because of the offence of which he is suspected, it he really wanted to record his extrajudicial statement. She continued that the 3rd accused answered yes; he wanted to make his confession statement. Seeing that, PW7 informed the suspect that 37 he was investigated for the murder case. And that, if he wanted to record his statement, the same would be used in evidence against him if it would be needed in the High Court. With that caution, PW7 stressed, the suspect responded that he was ready to record his statement, and the same could be used as evidence in court. PW7 added further that, after that, she told the 3rd accused that he is free and that he can make his own statement. PW7 continued that, in his statement, the 3rd accused explained that he was employed in the incident by the 1st accused. The 3rd accused stated further that when he met the 1st accused for the first time, he was not informed of the task he had been engaged for, but later, he was then told while they were at Heron’s village. He went on to explain that, at Heron’s village, they met Mubi Mahoba, who confirmed to the 3rd accused the purpose of killing Merea. PW7 testified further that, in his statement, the 3rd accused also stated that, at first, he was shocked with such engagement, but they cooled him down, and they also informed him that the whole family knows about it. Though the third accused resisted and informed them that it was a difficult task to perform. However, the 1st accused and his father, Mubi Yohana 38 Mahoba, had promised him a payment of one hundred thousand shillings (100,000) and two cows for killing the deceased. She continued, seeing that the 3rd accused asked his accomplices why they wanted to see the deceased killed. Mubi responded that the deceased was conceited, and she was selling livestock and not taking care of him. After the agreement, Mubi informed the 3rd accused that the deceased was not around. At that moment, the 2nd accused appeared and gave the 1st and 3rd accused Tshs 10,000/= to go to the market at Veyula so that they could pass time in order to allow the deceased to come back home. PW7 has testified further that the 3rd accused had stated that after they left the village, they returned back late at night and met Mubi outside of their house. Mubi informed them that Merea had come back. At first, the 3rd accused was hesitant as to how they could go inside the deceased's house while there were some other people in the house. However, PW7 stated that the 3rd accused did not inform her about the number of houses that were there, but he stated that, in the Merea’s house, there were some other persons who were sleeping therein. 39 PW7 continued to testify that, following such an inquiry by the 3rd accused, the 1st accused informed him that they would enter inside together. Then they went in together, and Mubi remained outside. While they were inside the house, the 1st accused put a local lock on the other room’s door so that those who were inside the room could not go outside. Thereafter, the 3rd accused wondered to Heron how they could go inside. Seeing that, Heron raised his hand and removed a doorbar to set open the deceased’s room. They then went inside the room together while the deceased was still sleeping. Thus, they switched on a torch and directed light to the deceased, who was still sleeping. Thereafter, the 3rd accused started to stab the deceased with a knife twice, and the deceased shouted for help that she was being attacked. After he had stabbed her twice, the 3rd accused attempted to leave the room, but the 1st accused asked him why he was leaving while the deceased was still alive. PW7 went on testifying that the 3rd accused continued to narrate to her that, following the deceased’s shout for help, people from other rooms were attempting to come out, but they were blocked, and therefore, they failed to come out. Seeing that, the 1st accused also went to the deceased and stabbed her once more. After that incident, the 3rd accused left, and 40 while he was on the way, he was informed that the deceased had died. PW7 testified further that she was informed by the 3rd accused that even his payment was not completed. She also identified the 3rd accused in the dock. More so, PW7 testified that, while the 3rd accused was explaining to her what had happened, she was recording the same. She finally identified Khamis’s cautioned statement, which she had recorded; though, the same was rejected for admission. Furthermore, PW7 continued to testify that after she furnished the record of the 3rd accused confession statement, she returned him to the same police officer for further procedures. Testifying further about the incident, PW7 stated that she was told by the 1st accused that the deceased was not his biological mother, but she was his stepmother. Also, PW7 stated that, when the 3rd accused appeared before her, he stated that he and the 1st accused were the ones who stabbed the deceased to death. And that, later, when they (the 1st and 3rd accused persons) left the crime scene, they received the news of her death (the deceased) that she had been murdered. When she was cross-examined by the defence counsels, PW7 stated that the 3rd accused told her that they left a crime scene late at night. She 41 also admitted that she did not ask the 3rd accused the specific time because she was not allowed to ask questions. She further admitted to having not been informed by the 3rd accused as to who those other persons were who slept in the deceased’s house on the fateful date. PW7 also stated that she did not testify about the location of the deceased’s room. She also admitted that she has not shown the distance between the deceased’s room and those other people’s rooms. When she was inquired about light, she attested that the accused had entered the deceased’s room and used a torch to give light to the room. Though PW7 admitted that she did not mention who took a torch, the type of torch, or the intensity of such light. PW7 also admitted that she testified that after he stabbed the deceased, the 1st accused went back to the deceased’s room and stabbed her again to make sure she was killed. PW7 admitted further that she has not tendered any documentary evidence to prove what she had testified. Likewise, PW7 also admitted that she does not know the whereabouts of a knife that was used to stab the deceased. Furthermore, PW7 stated that she took Heron's extrajudicial statement on 12/12/2019 and that of Khamisi Letema on 16/12/2019. And that they were all suspected to have murdered Merea (the deceased). PW7 also 42 acknowledged the existence of the Chief Justice Guidelines for the Justices of the Peace, which govern the recording of an extrajudicial statement. She admitted to having understood the guidelines and admitted that, once violated, an extrajudicial statement recorded becomes involuntary. She also stated that sometimes a mental condition of a person can be ascertained only by looking. In rejoinder, PW7 reiterated that she took the extrajudicial statements in compliance with the Chief Justice Guidelines. PW8: Honesty Kacimir Kasasa; upon his sworn evidence, he testified that he is a human being doctor who works at Bahi Medical Clinic. His practicing registration number is MCT 0007, acquired from the Medical Council of Tanzania. He therefore testified that, on 27/11/2019, in the morning hours, while he was at his working station at Bahi, a police officer by the name of Solomon, who is an investigator, approached him with other police officers. They informed him that there was a murder case at Mayamaya village, Mkongoni Hamlet, and thus they needed him for examination of the deceased body. Seeing that, PW8 took his working instruments, and he went to the place where the deceased body was located. At that place, he continued, they saw a number of people, including Mubi Mahoba, who showed them 43 the deceased body. The deceased body was placed on the floor, on top of the mattress, with blood. PW8 went on to testify that the deceased body was of a female person whose approximate age was 68 years. The deceased’s name was Merea Mgoda. Testifying about deceased observation, PW8 testified that he started to examine the deceased’s body and observed a wound caused by a sharp object, and it deepened inside the deceased body. He also stated that the deceased had injuries on the left chest and at the back of her chest below the left shoulder. He further stated that, after the examination had been completed, he detected that the deceased’s death was due to severe hemorrhage caused by injuries exacted by using a sharp object. He went on to testify that he then prepared a postmortem examination report on November 27, 2019, at about 1200 hours. Furthermore, he testified by admitting a clerical error that he had committed; thus, mistakenly, he recorded the date 27/11/2019 as a date of examination instead of inserting the correct date, which is 26/11/2019. He then tendered an autopsy report, which was admitted in evidence as exhibit P2. After that, he released the deceased’s body to the relatives for the funeral. 44 PW8 testified further that on 17/12/2019 at 1400 hours, he was approached by police officers together with two accused persons, thus the 1st and the 3rd accused, for the purpose of examination of their mental status. He continued to state that, following such demand, he took them into his office and started to inquire by putting questions to them in order to observe the stability of their mental conditions. In the end, he concluded that both the 1st and 3rd accused persons were mentally stable. Finally, he filled out Police Form No. 3 to present what he had observed. When PW8 was cross-examined by the defence counsels, he stated that he only had gloves and a mask when he was conducting an autopsy. He also admitted that the pericardium, sac, and heart are internal organs of the human body. He also admitted that a heart cannot be seen from outside. However, PW8 resisted that, to examine a heart or pericardium sac, a doctor has to open up the area of a heart or dissect it. Therefore, PW8 stated that, for this case, it was not necessary to do dissection in order to examine a heart. He insisted that it was enough to insert his finger in the wound for him to conclude his observation. He admitted further that he did not testify as to what extent he inserted his finger into the deceased’s wound and that he did not mention that fact 45 in the postmortem report that he used his finger to examine the deceased’s body. PW8 went ahead and admitted that death was caused by a sharp object. He also acknowledged that, in the autopsy report, there is no where he has recorded that a wound was caused by a sharp object. In addition, he admitted further that items number 15, 16, 17, and 18 of an autopsy report deal with internal organs, and thus, it is true that a doctor cannot examine damage caused to those organs without making a dissection of the deceased’s body. Respondent further to the counsel’s queries, PW8 admitted to having examined the mental condition of the 1st and 3rd accused persons, but he did not mention in his oral evidence that he is a qualified mental expert. He also admitted that, he observed the deceased’s heart had been damaged by using his finger. He further stated that he did not specify in the evidence as to which wound he inserted a finger among the three wounds to observe damage in the heart. Responding further to the counsel’s queries, PW8 admitted that it is true he did not specify which finger he used to examine the deceased’s body. He also stated that from the outer part of the human body to the heart, there are four layers, namely, skin, then fat, fishier and finally muscle. With respect to the damage caused, PW8 further admitted 46 that he did not mention any reasons why he concluded that the deceased’s heart was damaged and not the lungs, which are also close to the heart. In rejoinder, PW8 reiterated that the wounds were caused by a sharp object because penetrating wounds are normally caused by a sharp object. He also asserted that he did not estimate the wounds’ depth because he did not have tools that could have read such units in terms of centimetres. In defence, accused persons testified by themselves without summoning any other witness to testify in their favour or issue any exhibit to disprove the allegation that they stand charged. Basically, their testimonies were as follows: DW1: Heron Mahoba; sworn and stated that he lives at Hombolo village. And that on 26/11/2019, while he was at Hombolo village engaged in building Bibi Madawa’s house, he received a phone call from his father, Mubi Mohiba. And, at that time, Mubi Mahoba was at Mkomoni village. Mubi informed DW1 that his mother, Merea, had been killed by unknown people who invaded her house. Following that news, DW1 took a motorcycle and rushed back to the crime scene. It was about 0600 hours on 26/11/2019 when he received a 47 phone call, but he started to go there around 0800 hours and reached the crime scene around 1000 hours. And that, he saw, police were already there at the deceased’s house. DW1 continued to testify that, after a few minutes, the deceased’s relatives were asked by police officers to sidestep from other people. They were then arrested and taken to the police station. At the police station, they were informed to be the suspects for the murder of Merea Mohoba. He added that police arrested the whole family, but later some family members were released, but he himself, his brother DW2, and his father Mubi Mahoba were retained. DW1 testified further that, in the police vehicle, at first, they were taken together with his biological mother, who was later released. He proceeded that they were taken to Bahi Police Station, where they spent almost 15 days before they were taken to the court. He further stressed that he was not responsible for the murder of the deceased. Moreover, DW1 testified that he did not know why police arrested and took only three of them in the vehicle and left out the rest. He insisted he had not murdered the deceased together with his father and the second 48 accused. He also denied having contributed any money for the purpose of killing the deceased to any person. DW1 also admitted to having understood the 3rd accused when they met in the prison, but before that, he denied having known him. Finally, he pleaded with the court to set him free because he has not murdered the deceased. During cross-examination, DW1 admitted that he did not inform the court that he would rely on his defence on the evidence of alibi. He further stated that he was unaware if the deceased had children. He also stated that when they were arrested, there were only three of them. DW1 explained further that, when PW1 was testifying, he was not aware if she testified that they (DW1 and DW3) slept in her house. And that PW1 had asked him to attend a funeral with her, but he, DW1, responded that people will suspect him of murder. He admitted that he had not opposed the testimony of PW1 in his defence. DW1 also acknowledged to have not testified anything in his defence with respect to the testimonies of PW6 and PW7. But he admitted to having seen Grace (PW1), Mgeni (PW6), and Jamila (PW7) in the court when they came to testify. However, he denied having ever met them before 49 or even understood them before. In rejoinder, DW1 pressed that he has never committed the alleged murder. DW2: Dickson Yohana Mahoba, in his sworn defence testimony, testified that he lives at Mkongoni village with his one wife and four children, namely: Ana, Janet, Dorica, and Monica. He went on to testify that on 26/11/2019 he was at Veyula village on the farm of Baba Vivian clearing the trees. And that he worked at the farm for one year. DW2 testified further that on 24/11/2019, while he was driving from Mkongoni on his motorcycle with two bags of charcoal, he was arrested by wildlife officers. They took him to their station, and later Baba Vivian arrived and settled the case with wildlife officers himself. He continued; after that, Baba Viavian went out and informed DW2 to return home. Thus, DW2 left, and he arrived at Mayamaya village at night on 25/11/2019, heading to 26/11/2019, but DW2 did not know the exact time. He added that, while he was at Mayamaya village, he passed to the Pombe’s club, where he enjoyed some drinks with Richard Muhotore and Yohana. He later left the pome shop and returned to his house. And on his way, he heard a call for help, “Yowe or lwangi,” coming from where he was 50 going. Moving ahead, he passed Abdi’s house, and together they went where a call for help was coming from, only to realize it was from his parent’s house, and his father informed him that his mother had been murdered by an unknown person. He continued that, at his parent’s house, there were more than thirty people. Then, they inquired if they saw a person who killed his mother. Instantly, people started to call the police and other relatives. In the morning, police from Zamahero and Bahi police stations arrived. Thereafter, police called the deceased’s relatives and took DW1, DW2, and Mubi Mahoba to their vehicle and drove them to Bahi police station. In the police vehicle, there were only three relatives, and they were kept in police custody for one month before they were sent to the court on 22/12/2019. Testifying about what happened at the police station, DW2 stated that nothing happened to him. He therefore insisted that he has neither participated in the murder of the deceased nor paid the 3rd accused to kill the deceased. He stressed that he only knew the 3rd accused before the court. Adding to that, DW2 further stated that there was no one who testified that he paid the 3rd accused to kill the deceased. He also mentioned that the deceased had been killed at Nkong’oni village, and when she was killed, he 51 was at Veyula village selling charcoal, though he did not ask at what time the incident occurred. In the end, DW2 emphasized that he has not participated in the murder in any way, and therefore, what the prosecution's witnesses have testified was false. He thus prayed the court to set him free in order to go back home and continue with his normal life. He also insisted that at the crime scene, only three persons were arrested by police officers, including himself, the 1st accused, and his late father, Mubi Mahoba, who passed away while they were prosecuted in the case. During cross-examination, DW2 maintained that he started to know the 3rd accused in the court before Hon. Sara, Bahi District Magistrate. He further stated that he understood PW6 in the court, and thus, he did not hear when PW6 testified that the 1st and the 3rd accused persons knew each other before this case. He added that his advocate has objected that they knew each other before this incident. Furthermore, DW2 stated that it is not true that he gave the 3rd accused 100,000 shillings. Describing where he lives, DW2 highlighted that he lives at Mkong’oni village, and the distance from Mukongoni village to Veyula village is about one hour. And that, he went to Veyula village on 24/11/2019. He was arrested by wildlife officers on the same date. He further emphasized that 52 he did not spend a night in the wildlife officers’ station on that day. Thus, he returned to Mkong’oni village on the same day by using a vehicle. He also stated that he did not know the time because he did not check it. He further explained that on that day, when he returned from Iyoli village, he heard a shout for help from Mubi’s house. And that, the deceased died on 26/11/2019 at midnight, and police officers arrived at the crime scene on 26/11/2019, and on the same date, they were arrested. DW2 also admitted that he initially gave notice that he would rely on the evidence of an alibi. In rejoinder, DW2 stated that on 24/11/2019 he was arrested by wildlife officers and spent a night there at Veyula village. On 25/11/2019, he started to return home and reached on 26/11/2019 at night. He further explained that he returned to his house by truck carrying soft drinks. It was on 25/11/2019. In the end, DW2 insisted that he does not know the 3rd accused. DW3: Hamis Letema Kandilo swore and stated that he did not attend school; thus, he cannot read and write. And that he remembered on 26/11/2019 he was informed by his fellow accused persons in the prison that they are suspected to have murdered the deceased (Merea). He added that 53 he was informed that because for some time he was not using pills. That was suspected of murder, but he did not know what had happened. DW3 testified further that he was using pills for mental diseases, and thus he was still using them. He continued to state that he had been suffering from mental disease since he was a child. He underlined that; it was the reason why he did not attend school. He went on to explain that he understood about his disease because he was informed by his parents. He also stated that he has been treated at Mirembe Mental Hospital and also that his parents were keeping him in special care. DW3 testified further that while he has been in the prison, he has attended a mental clinic at Mirembe twice in compliance with the court orders. He proceeded that, while he was at Mirembe, he informed the doctor of what he had been informed by his fellow accused persons. He also testified that he was unaware as to where he had recorded his statement. And thus, he does not know anything about the signature that was written in his cautioned statement. About the evidence given by the prosecution's witness, he testified to having known nothing, but DW3 admitted to having known other accused 54 persons while they were in the prison. With respect to the murder allegation, he stated that it is not true that he was involved because he knows nothing about the accusation. He highlighted that he cannot understand the allegation because he was mentally sick, and when he was sent to prison, he was not conscious, but he regained consciousness in prison. Finally, he prayed the court to set him free because he knows nothing about this case. Testifying further, DW3 stated that he did not know when he was arrested, though he knows why he was before the court because he was suspected to have killed the deceased. DW3 added that he remembered nothing about recovery or the severity of his mental case. He explained further that if he stops to use medicine, then he usually loses consciousness. He also stated that he remembered to have used medicine since 2004, as he was informed by his siblings, and if he stopped to use medicine, his problem would return. Furthermore, testifying about his mental condition, DW3 explained that when he is conscious, he always loses memory of whatever happened before. He insisted that he knew nothing about the first accused, and he also did not know where the incident had happened. Moreover, he testified that he started to use medicine in prison. And that he knows nothing about 55 Merea’s death. He also underscored that when murder occurred, he was not using medicine, but now he can understand because he is using medicine. About his cautioned statement, which was tendered in court, DW3 testified that he can only accept his name, but he rejected everything else recorded in that statement. He also asserted that he cannot remember if he has ever married or that he has children. He denied a cautioned statement, saying that it is not his, and he asserted further that, maybe, it belongs to a person who signed it. He also stated that what PW1 has testified was a false version, and he denied having known her. When he was cross-examined by the prosecution, DW3 admitted that he did not mention the name of the medicines that he has been using for his mental problem. He also admitted that he has not tendered any exhibit showing that he has been using medicine and that he was treated at Mirembe Mental Hospital. He also admitted to having raised a defence of insanity during the preliminary hearing. He also admitted that the medical examination report from Mirembe Mental Hospital shows that, when he was committing the offense, his mental condition was stable. He testified further that he does not remember the court ruling that ordered that when he committed the offence, he was mentally sound. 56 He has also stated that, when his cautioned statement was tendered by PW6, he was in court. He further asserted that he does not remember if his counsel had objected to the admission of the cautioned statement. He additionally stated that when he recorded the cautioned statement, he was mentally sick. He further acknowledged that he did not tender any exhibit to show that he was using medicine in the prison. When DW3 was prompted further by the prosecutor, he responded that it is not true that in 2006 he decided to marry and left his parents’ place. He also asserted that he did not know where the police got that version about his marital life. He also denied ever being a religious singer in church. In the end, DW3 persevered in his standing that he had not seen Grace before, and that he just saw her in the court. However, he admitted to having not objected that Grace is his sister. Generally, that was what the two sides have submitted in evidence. However, in furtherance to what the two sides have presented in evidence to guide the court through, unlike the defence side, which chose to let it go, the prosecution’s side opted to galvanize their legal right borne under Criminal Procedure Act, Cap. 20 R.E. 2022, to file the final submission. 57 In a nutshell, in his submission, learned Senior State Attorney, Mr. G. Mlagala primarily submitted that the prosecution has proved all ingredients of murder as shown in the evidence above. The said ingredients were summarized in the case of Anthony Kinanila and Another vs. The Republic, Criminal Appeal No. 83 of 2021, in the Court of Appeal of Tanzania at Kigoma at page 15, which held that “In a charge of murder like the one in the instant case, it is trite that the prosecution is required to prove all the ingredients of murder in order to win a conviction thereof. The said ingredients, which the prosecution must prove beyond reasonable doubt, are: 1. That the deceased is really dead. 2. That the death was caused by someone unlawfully 3. That there was malice aforethought and 4. That the accused person directly or indirectly took part in the commission of the murder.” Regarding the first ingredient, the learned state attorney submitted that it is undisputed from both the prosecution case and the defence case, 58 especially for the 1st and 2nd accused, that one Merea Mahoba died. He explained that, to support that, PW1 stated that after receiving the news that the deceased had died, she went to the deceased’s house, and indeed, she found her dead. The same facts have been testified to by PW2, PW3, and also PW4 and PW5, police officers who went to the crime scene and found the deceased dead. Additionally, the PW8 conducted a post-mortem examination, which was admitted as exhibit P2, and confirmed the deceased’s death. More so, even DW1 and DW2 stated that the said MEREA died on 26/11/2019. About the second ingredient, that the death was caused by someone unlawfully. The learned state attorney referred to what has been stated above, that all PW1, PW2, PW3, PW4, PW6, PW8, and Exhibit P2, in addition to the testimonies of DW1 and DW2, clearly show that the deceased was stabbed in her various parts of the body by a machete or sharp object. This shows that the same was caused by someone, and thus, it was not a natural death. As to the third ingredient, the learned senior state attorney submitted that there are facts that either collectively or separately sought to conclude that there was malice aforethought in the killing, as it was held in the case 59 of Enock Kipela vs. The Republic, Criminal Appeal No. 150 of 1994, Court of Appeal of Tanzania, at Mbeya at page 6 that “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 or blows were directed at or inflicted in; 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 attacker's utterances, if any, made before, during, or after the killing; and 7. the conduct of the attacker before and after the killing.” 60 Mr. Mlagala further holds that it is obvious that going through the testimonies of the prosecution’s witnesses, including exhibit PE2, and even defence evidence of DW1 and DW2, it is clear that the attackers used a sharp weapon, possibly a machete, which caused injuries in the deceased’s body and eventually led to numerous blows to the deceased. In his view, he concluded that all these attributes have proved malice aforethought of the attackers. On the last ingredient as to whether the accused persons directly or indirectly took part in the commission of the murder, he submitted that this ingredient has been proved. He submitted the act of assassinating the deceased was planned, and the attackers covered their identity not to be recognized when they were committing the offence. Hence, primarily, its proof is based on the circumstantial evidence and a confession of the accused persons. With regard to circumstantial evidence, Mr. Mlagala argued that the same is shown by considering various facts. For instance, he pointed out the case of Peter Didia @ Rumala vs. The Republic, Criminal Appeal No. 421 of 2019, Court of Appeal of Tanzania at Shinyanga. At pages 14 and 15, it was held that: 61 “We wish to start by stating that there is no doubt that the prosecution case relied heavily on circumstantial evidence, as there was nobody who witnessed when the offense was committed. Therefore, in resolving this appeal, we deem it pertinent to initially restate the basic principles governing the reliability of the circumstantial evidence as discussed in the case of Jim m y R unangaza v. Republic, Crim inal Appeal N o. 159B of 2 017 , when this Court remarked that: ” In order for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilt. (See Sim on M usoke v. R epublic [1958] EA 715.) Sarkar 14 on Evidence, 15th Ed. 2003 Report Vol. 1, page 63, also emphasized that on cases that rely on circumstantial evidence, such evidence must satisfy the following three tests, which are: 1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. 62 2. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; an 3. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and no one else." He further referred to the case of Mathias Bundala vs. The Republic, Criminal Appeal No. 62 of 2004, in the Court of Appeal of Tanzania at Mwanza at page 20. "In a case depending conclusively on circumstantial evidence, the court must, before deciding on a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilty.” Taking from the authority above, the learned senior state attorney therefore argued that the circumstances of this case pointed fingers at the 1st and 3rd accused as culprits of the offence. He further stated that it is the testimony of PW1 that on November 1, 2019, the 1st and 3rd accused visited 63 her. The said 1st and 3rd accused persons said that they intended to stay there for three days with the intention to teach choir and do construction works as masons. That, on 26/11/2019, the 1st and 3rd accused persons went back home at late night, something that was not normal compared to those previous days. And when she asked them of their whereabouts, they replied to have come from teaching choir. On 27/11/2019, between 05 and 06 hours, she was informed that the deceased had died. And upon hearing, the 3rd accused said that he would not go to the funeral as he had missed his children. When she asked the 1st accused to go with her to the funeral, he replied that he was afraid of going there as he would be accused of having killed the deceased. However, the 3rd accused finally decided to go to the funeral after he had been insisted by her. Also, PW2 stated that, on the incident day after he went out from their house, he saw two unrecognized persons running away. And PW3 stated that on the incident date, after hearing an alarm, he went there, but he did not find the first accused at the crime scene. The learned senior state attorney therefore argued that all these circumstances suggest that the two persons who have been seen running away were the 1st and 3rd accused. He further submitted that the 1st accused 64 had tried to deny having been in the house of PW1 by mentioning that he was constructing a house, but the same defence of alibi was not raised earlier in compliance with Section 194 of the Criminal Procedure Act [Cap 20 R.E. 2022]. Hence, he stressed that they prayed for this Honourable Court to disregard such defence evidence. Mr. Mlagala went ahead and said that even DW2 has totally denied having been sane at the time of the commission of the offence and the period when he has been arrested. But the same is not supported by any medical evidence, he cemented. Therefore, it is argued that all those circumstances have proved that the 1st and 3rd accused have truly committed the offence. Thus, in his view, the act of the 1st and 3rd accused persons denying going to the funeral of the deceased drew the inference that they had committed the offence. Arguing about the accused’s confession, he submitted that by itself, it can prove the commission of the offence. He drew an example in the case of Chande Zuberi Ngayaga and Another vs. The Republic, Criminal Appeal No. 258 of 2020, Court of Tanzania at Mtwara. At pages 12 to 13, it was held that “Having thoroughly perused the said statements and the record of appeal, we immediately agree with Ms. George 65 that the same gave a full account of how the appellants committed the offense they were charged with. Being guided by the above authorities, it is our considered view, and as rightly found by the trial court, that the appellants' statements provided overwhelming evidence of their participation in the commission of the offense. It is settled that an accused person who confesses to a crime is the best witness.” He further referred to the case of Emmanuel Eliabi @ Sanga vs. The Republic, Criminal Appeal No. 327 of 2021, Court of Appeal of Tanzania at Dodoma. At pages 14, 17, and 18, it was held that: “The settled position is that the confession of an accused person, whether or not retracted or repudiated, can be relied upon by the court to ground the accused's conviction with or without corroboration. The most important things to be considered in its admissibility before relying on such a confession are: one, whether the 66 confession was made voluntarily and properly; and tw o, whether the confession is true. Having found that exhibit P2 was properly recorded and the appellant voluntarily confessed to being involved in killing the deceased, this Court has nothing to doubt from his confession, as the very best evidence in a criminal trial is the voluntary confession of the accused person. Even if the statement could be retracted or repudiated, the details contained therein give sufficient information on how the deceased's death was organized and executed by the appellant with his fellows, a thing that could not be easily given by someone with no knowledge of the same. Under the circumstances, the appellant could still be implicated/netted based on his confession. Therefore, like the learned trial judge, we are satisfied that, taking into account all the circumstances of the case, the appellant's confession statement was nothing but true. 67 Besides, the appellant's confession statement (Exhibit P2) shows that they had a common intention of slashing away the deceased's life. This is according to the nature of weapons used, the manner in which they inflicted injuries on the deceased's body according to the evidence of PW2 and the autopsy report (Exhibit PI), and the appellant's conduct after the incident, altogether proving intention (malice aforethought) of killing the deceased.” Guided by the above case laws, Mr. Mlagala submitted that exhibit PE1, which is a caution statement of the 3rd accused, is the best evidence for the prosecution case. In the said caution statement, the third accused has narrated how they planned to kill the deceased. He further stated about the involvement of the father of the 1st and 2nd accused, who instructed his sons to look for a person who could kill the deceased in consideration of a cow. And that the 1st accused approached the 3rd accused to execute the offence. The 2nd accused was only directed to send money to the 3rd accused in the amount of Tzs. 100,000/= twice. He then admitted to having gone to the house of PW1, where they stayed for three days pretending to teach choir and engaging in construction work. And on 26/11/2019, they went to the 68 deceased's house and locked the house, which had been used by young people, by using logs (Magogo). And thereafter, they entered the deceased’s room and stabbed her with a sharp object to death. That, after executing their mission, they went back to PW1’s house late at night. The learned senior state attorney argued that this evidence is corroborated by the evidence of PW1 and PW2, as stated above. The learned senior State Attorney submitted that, as reflected in the above case laws, such evidence could not have been adduced by any other person rather than the accused themselves. Even the first accused confessed to having committed the offence by way of a cautionary statement and an extrajudicial statement. Unfortunately, the same were not admitted only because of failure to meet legal requirements. However, the accused did not deny having been given such statements. He added that both the 1st and 3rd accused persons have clearly stated in their testimonies that they had no dispute with PW6 and PW7; therefore, it was not possible for them to testify that the accused confessed before them to having committed the said offence. He quoted Section 3 of the Law of Evidence Act [Cap 6 R.E. 2022], which states that: 69 “Confession means— words or conduct, or a combination of both words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offense.” Thus, he argued, by their words, the accused persons confessed to having committed the offences. And also, by their conduct of not objecting to them on the ground that they did not give any such statement, all proves that the accused persons have indeed committed the offence. Regarding corroboration of the 3rd accused’s cautioned statement as a confession against the 1st and 2nd accused, it was held in the case of Charles Issa @Chile vs. The Republic, Criminal Appeal No. 97 of 2019, Court of Appeal of Tanzania at Mbeya at page 18 that: “The import of the evidence of a co-accused is settled that such evidence must be treated with circumspection and thus requires corroboration.” 70 Mr. Mlagala therefore submitted that, considering PW1’s testimony on how the 1st and 3rd accused came to her home and the way they reacted after hearing of the death of the deceased, all these corroborate what has been stated by the 3rd accused in his cautioned statement that they committed the said offense in corroboration of the 1st and 2nd accused persons. He also submitted with respect to the statement of PW1, which was admitted to contradict her (PW1) oral testimony about the distance from her house to the deceased’s house. And also, to contradict the request made by the 1st and 3rd accused when they demanded water to take a bath after they went back to the PW1’s house late on November 26, 2019. On this point, he concluded that it is true that PW1 did not state all that when she recorded her statement at the police station but responded that she did not mention it because she was not asked. However, in the learned senior state attorney’s view, such alleged contradiction is minor, and it does not go to the root of the case to vitiate PW1’s testimony. To cement his opinion, he referred to the case of Alex Ndendya vs. R Criminal Appeal No. 207 of 2018, Court of Appeal of Tanzania, at Iringa at page 14: 71 “The Court will only take into consideration contradictions that are not minor and go to the root of the matter.” Thus, he concluded, since PW1 has clearly stated how the 1st and 3rd accused went to her house for three days and how they refused to go to the deceased’s home after hearing news of her death as stated above, all these traits prove that her testament was real, as there is no contradiction on this aspect. In the end, Mr. Mlagala, the learned senior state attorney, prayed the court to find the accused persons guilty as charged and convict them accordingly. For that note, and owing to the circumstances of this case in general, the main issue for determination of this court is whether or not the accused persons murdered the deceased. Primarily, I will start my analysis of the evidence for and against the allegation by restating the provisions of the law from which the offence of murder stems. Thus, Section 196 of the Penal Code [Cap. 16 R.E. 2002] provides: 72 “Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.” In reference to the provision above, it is therefore clear that, for a person(s) to be convicted for the offence of murder, prosecution ought to prove their case beyond any reasonable doubt. That means the evidence should be watertight for all ingredients of murder as stipulated under Section 196 of the Penal Code above. Precisely, dictating from Section 196 of the Penal Code, the elements that constitute an offence of murder have categorically been narrated in the case of Anthony Kinanila & Another vs. Republic (Criminal Appeal 83 of 2021). [2022] TZCA 356 (16 June 2022); Abel Orua @ Matiku & Others vs. Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78 (21 February 2024), where in this case, it was held that: “It is a settled position of the law that in proving the offence of murder under Section 196 of the Penal Code, it must be established that the death of a human being occurred, that the death was unnatural and was caused 73 by an unlawful act or omission, that it was the accused person who did the unlawful act or omission leading to the death of the deceased, and finally that the death was caused with malice aforethought.” In simple terms, to rephrase them systematically may basically include the following: • Whether the deceased has died. • Was the death unnatural and caused by unlawful killing? • Whether the death was caused by malice aforethought. • Whether the accused persons caused the death. At this point, before steering through each of the elements, I will begin my analysis by screening the position of the law evolving the duty of prosecutions as hooked in the criminal case. For instance, in Simon Edson @ Makundi v. The Republic, Criminal Appeal No. 5 of 2017 CAT (unreported), it was held that: “It is trite law that the burden of proof in a criminal case lies on the prosecution, and it never shifts to the accused.” 74 See also the decisions in George Mwanyingili v. R, Criminal Appeal No. 335 of 2016; Nchangwa Marwa Wambura v. R, Criminal Appeal No. 44 of 2017; and Mohamed Haji Ally v. R, Criminal Appeal No. 225 of 2018 (all unreported), just to mention but a few. In a similar vein, sailing through the evidence, it is apparent that, when the offence was committed, there was no eyewitness who was present at the crime scene and who viewed the act when it occurred by his/her own naked eyes. Thus, in such circumstances, proof of the matter will mainly rely on the circumstantial evidence presented by the prosecution's witnesses. Additionally, the prosecution’s case will also be grounded by the evidence conquered from a cautioned statement (exhibit P1) made by the 3rd accused. At this juncture, addressing principles pertaining to circumstantial evidence becomes vitally important in order to give light to the applicable principles. Apparently, evidence law has made it clear that to withstand a conviction based on circumstantial evidence, the evidence must be watertight, leaving no other interpretation apart from a guilty of the accused. For instance, Section 122 of the Evidence Act [Cap. 6 R.E. 2022] provides, as observed hereunder: 75 “A court may infer the existence of any fact that it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.” More so in Julius Justine and 4 Others v. Republic, Criminal Appeal No. 155 of 2005 (unreported), where provision of Section 122 (supra) was ingrained. See also in the case of Isaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 (unreported). For instance, in the Julius Justine case (supra), it was underlined that: "It has been said that circumstantial evidence is very often the best evidence. It is the evidence of surrounding circumstances that, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics." However, precaution has also been raised when one is opting to rely on the circumstantial evidence. See in George Edward Komowski v. Republic (1948) TLR. 322, where it was held that: 76 “Indeed, circumstantial evidence is among the best evidence if taken with all the precautions.” Up next, after such introductory insight, is to evaluate the evidence leading to the proof or otherwise for commission of the alleged offence of murder. Therefore, based on the first element, which inquires to ascertain whether or not the deceased died. Going through the evidence, firstly, it is clear from the testimonies of PW1, PW2, PW3, and PW8, respectively, and adding to that, also exhibit P2 (a postmortem report). Furthermore, the testimonies of DW1 and DW2 have undeniably proven that the deceased, one Merea Mahoba, has actually died, and they, themselves, were arrested in connection to her murder allegation when they were attending her funeral. Notably so, PW2 and PW3 were directly able to see the deceased body in her house lying on the floor with injuries on the fateful date. Also, PW8 conducted an autopsy of the deceased body and then filled an exhibit P2, a postmortem report, which shows that the deceased actually died due to severe hemorrhage caused by the injury. Therefore, with this piece of evidence, I am fully satisfied that the first element of the offence of murder has been proved beyond any shadow of doubt. 77 Moving to the second element of murder, which ascertains whether or not the death was unnatural and it was predicated by an unlawful act. Again, based on the evidence of PW1, PW2, PW3, and PW8, they testified to having seen the deceased body lying on the floor in her house during the material day, that is, on 26/11/2019, with wounds full of blood. Also, considering the findings of the medicolegal examination as adduced by PW8 and reported in exhibit P2 (a postmortem report), which clearly shows that the deceased’s death was due to severe hem orrhage caused by injuries sustained by using a sharp object. And further, the fact that PW2 and PW3 have testified thus: while sleeping in their house on the material day, they heard a shout for help from the deceased’s house, and when they managed to reach there, they found the deceased had been injured. More so, PW2 continued to testify further that, after he went outside his house to respond to a shout for help, he saw two people running away to the bushes. In my firm view, based on the evidence above, that is, there was undisputed evidence from PW2, PW3, PW8, and exhibit P2 that the death was caused by injuries that the deceased had sustained due to the attack she suffered. Again, the weapons the perpetrators used to attack the deceased, that is, a sharp object, and the nature of the wounds inflicted on 78 the deceased body have left no doubt that the accused had intended to kill or cause grievous harm to the deceased. For that note, I hold the second element of murder to have been proved in the affirmative. That is, the deceased's death was not only unnatural but also unlawfully predicated by the assassins. Regarding the third element of murder, which questions whether the said death was instigated with malice aforethought, in my analysis, Firstly, I will refer to Section 200 of the Penal Code for the sake of drawing an insight on how malice aforethought is constituted. This section provides: “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— (a) an intention to cause the death of or to do grievous harm to any person, w hether that person is the person actually k illed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed 79 or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offense punishable with a penalty that is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offense." [with emphasis] As aptly observed under subsection (a) of section 200 above, when a perpetrator is presumed to have an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not, thus he is fittingly said to have had a malice aforethought in the performance of his act. The paradigm malice aforethought has been firmly calculated to be constituted, as in the case of Enock Kipela vs. The Republic (Criminal Appeal 150 of 1994) [1999] TZCA 7 (10 June 1999), where it was held: 80 “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 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 or blows were directed at or inflicted; (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 attacker’s utterance, if any, made before, during, or after the killings; and (7) the conduct of the attacker before and after the killing.” Now, having been able to set a foundation on how malice aforethought can be ascertained, I should revert back to the instant case with a view to evaluating the evidence adduced, if at all, to see if it has met the earmarked requirements revealed by the authorities hereabove. Initially, the testimonies of PW1, PW2, and PW3, who testified to having seen the deceased in her house the same day she was murdered, 81 with multiple wounds in her body, show that the deceased was severally stabbed in her body. For clarity, in her evidence, PW3 has stated that: “On 26/11/2019 at 0521 hours, I was sleeping at home, and thereafter, I heard a shout of help (yowe), and then I went out to listen to where it came from. I realized that the shout was from Mr. Mubi Mahoba and his family, including his two children, Juma Mahoba and Dickson Mahoba, but his third son, Heron, was not there. At that time, Heron was living there with his parents. Seeing that, I asked what happened, and I was informed that there was murder of Merea Mahoba. I went to look at Merea House, and I saw her w ith injuries in the different parts of his body. After that, I made a call to the police station. I did that because I was 10 cell leaders”. [emphasis added] Additionally, the testimony of PW8 and an exhibit P2 have also indicated that the deceased had multiple injuries in her body that were 82 inflicted by using a sharp object. Explaining further about the nature and place of injuries, PW8 has stated as hereunder, thus: “I started to examine the deceased body, and I observed that the deceased has wounds that were caused by a sharp object. It deepens inside the deceased’s body. She had an injury on the left chest and on the back of the chest below the left shoulder. After examination, I observed that the deceased’s death was due to severe hemorrhage caused by the injury, which was caused by a sharp object.” Therefore, taking from the evidence above, the deceased was stabbed in the sensitive part of her body, which is the left chest and on the back opposite to the chest below her shoulder. Also, the injuries were caused by a sharp object that has been deepened inside her inner body. So, fairly judging, the testimonies of these witnesses alone suffice to show the existence of malice aforethought on the part of the perpetrator(s). Consequently, I hold the third element of murder to have been proved beyond any reasonable doubt. 83 Sliding into the last element of murder thus, whether or not the accused persons have caused the alleged death. Admittedly, as it has been pointed out earlier, there was no single eyewitness at the crime scene who had identified the accused persons while committing the alleged offence of murder. In which case, the prosecution's evidence for identification of the accused persons will only be based on two aspects, to wit: (a) the 3rd accused confession through a cautioned statement (exhibit P1) and (b) circumstantial evidence adduced in the testimonies of PW1, PW2, PW4, and PW6, respectively. In the context thereof, I will start with a cautionary statement of the 3rd accused. To explore what has been underscored, I have carefully read the said cautioned statement time and time again in order to master its contents. After I have done so, as per the records, I have observed that the 3rd accused voluntarily confessed to having jointly killed the deceased together with the 1st accused, who had directly participated in the murder. And further, the 2nd accused and his father, the late Mubi Yohana Mahoba, were also part of the mission. A version of his confession statement in verbatim reads as follows: 84 “...nakubali tukio hilo nimefanya mimi kwa mikono yangu kwa kushirikiana na Heron, na mipango yote anaijuwa Dickson na baba yao mzee Mahoba.” To explain further about their involvement, the cautioned statement categorically reveals that the 1st accused, apart from engaging the 3rd accused for such purpose, has himself participated in the killing. For clarity, the cautioned statement reads: “Tarehe 25/11/2019 tulipata taarifa kuwa huyo mama karudi yupo myumbani. Heron alisema tumpigie simu Dickson atuletee shilini 100,000/- ili mara baada ya tulio tuwe na pesa za kuondokea hapo kijijini. Kweli Dikson alikuja na alituletea fedha hizo... na yeye aliondoka na tukabaki sisi... na baadaye tuliondoka na kuelekea kijijini, tulifika majira ya saa 1800hours, na aliniwacha kichakani harib sana na nyumbani kwao, na yeye alienda kuangalia mazingira, alizidi na kuniambia mama yupo amelala na kunionesha nyumba... baadae aliniita nikaanze kazi. Nilienda nikakuta mlango wa hiyo nyumba ni wa mbao, lakini yeye aliniambia anaweza kufungua, hivyo aliingiza 85 mkono na kufungua. Ulivyofunguka, niliingia ndani na kumkuta marehemu akiwa amelala chini peke yake kwenye godoro. Alitaka kunyanyuka, lakini ghafla nilimchoma kisu mgongoni karibu na kiuno, na nikamchoma tena kati kati ya mgongo. Alipiaga kelele kuomba msaada, na mimi nikachanganyikiwa. Nikataka kukimbia ghafla, Heron aliingia ndani na kuninyang’anya kisu na kuendelea kumchoma huyo mama mfululizo.” Therefore, according to exhibit P1, allegedly, a finger has been crossed to four persons. As it appears in the quotation here-above, the 1st and 3rd accused persons were directly involved in the killing. Whereas the 2nd accused and the late Mubi Mahoba were engaged in the planning and facilitation thereof. Thus, apart from Mubi Mahoba, whose case has been abated in terms of Section 284A of the Criminal Procedure Act, Cap. 20 R.E. 2022, the remaining three accused persons have been clearly pointed out in the cautioned statement of the 3rd accused to have murdered the deceased. However, I am aware that, in his defence, the 3rd accused has rejected the said cautioned statement by disputing that it is not his statement and 86 that he does not understand such a statement. In his own wording during his defence hearing, the 3rd accused testified thus: “I do not know where I have recorded my statement. I do not know anything about the signature that was written in the cautioned statement.” Furthermore, when he was queried by learned counsel for the 2nd accused, Mr. Njeru, the 3rd accused also responded thus: “About my statement, which was tendered, I can only accept my name, but I reject everything else recorded in that statement. I cannot remember now if I have ever married or if I have children; the cautioned statement is not mine; it may be a person who signed it is the real owner of that statement.” Therefore, after careful consideration of the 3rd accused’s defence testimony in totality, and more specifically with respect to his cautioned statement, I am of the firm view that the 3rd accused was trying to deny his statement at defence stage without any legal justification. For instance, his defence is that: 87 “He does not know where this statement comes from, and it is not his statement.” He was also trying to bring in the defence that, when the offence was committed, he was insane. In my judgment, firstly, I would prefer to gather from where the 3rd accused has alleged about the cautioned statement. On that, my contention is that: Firstly, the fact that he rejected the statement at this stage that it is not his statement is illogical. This is because, when PW6 testified, the 3rd accused did not put a question to dispute that the statement was not his, but he only objected about procedural irregularities such that (a) that it was recorded beyond the time stipulated under Section 50(1)(a) of the CPA, and (b) that certification was vague and confusing as it violates the provision of Section 58(3) of the CPA. As to the content of his confession, he remained mute. Notably, during the tendering of exhibit P1, the 3rd accused did not deny that he had recorded the said cautioned statement, but he was only disputing that there was procedural off track caused by the recording officer. Therefore, owing to such circumstances, in my opinion, the 3rd accused had 88 no room to challenge the same during the defence stage. This is because to do so at that stage, it becomes an afterthought. It is a trite law that, if an accused intends to object to the admissibility of a confession, he must do so before it is admitted and not during cross-examination or during his defence (see Shihoze Seni and Another v. R (1992) TLR. 330; and Juma Kaulule v. R, Criminal Appeal No. 281 of 2006 (unreported). Secondly, with respect to the claim of insanity that the 3rd accused has tried to bring in to his defence. Primarily, the 3rd accused has not tendered any medical proof to support his claim of mental unsoundness during his defence. Instead, what he has adduced in his defence evidence is a mere assertion that he did not understand anything about the murder and whatever came afterward when he was arrested. In my considered view, this defence accords no value in this context due to the reasons thus: (a) The 3rd accused has been cleared of his insanity condition by the court during the preliminary hearing under Section 220(1)(2) of the CPA. On that, a medical report from Mirembe Mental Hospital has been received and recoded to form part of the records. The report has indicated that, he was sane when the offence was committed. And further, after the medical report was endorsed as part of the records, 89 an inquiry was conducted in terms of Section 220(3) of the Criminal Procedure Act, Cap. 20 R.E. 2022, as to whether or not parties intend to adduce evidence relevant to the issue of insanity. The whole section 220 of the PCA provides: “220 (1)—Where any act or omission is charged against any person as an offense and it appears to the court during the trial of such person for that offense that such person may have been insane so as not to be responsible for his action at the time when the act was done or omission made, a court may, notwithstanding that no evidence has been adduced or given of such insanity, adjourn the proceedings and order the accused person to be detained in a mental hospital for medical examination. (2) A medical officer in charge of the mental hospital in which an accused person has been ordered to be detained pursuant to subsection (1) shall, within forty-two days of the detention, prepare and transmit to the court ordering the detention a written report on the mental condition of the accused, setting out whether, in his opinion, at the 90 time when the offense was committed, the accused was insane so as not to be responsible for his action, and such a written report purporting to be signed by the medical officer who prepared it may be admitted as evidence unless it is proved that the medical officer purporting to sign it did not in fact sign it. (3) W here the court adm its a m edical report signed by the m edical officer in charge of the m ental hospital w here the accused w as detained, th e accused and the prosecution shall be entitled to adduce such evidence relevant to the issue of insanity as they m ay consider fit.” [emphases added] In my judgment, owing to the findings that ensued from an inquiry, the issue of insanity has been decided; thus, the accused was sane during the time the offence was committed. Though, at that point, two defence witness had testified, their evidence was not sufficient to establish claim of insanity as against the report of medical examination. 91 Additionally, in the same context, DW3 had an opportunity to testify on his claim during defence. However, again no sufficient evidence in my view was adduced to uphold claim of insanity. Apart from a mere word of mouth, DW3 had not provided any proof of medical chit or medication to support his claim. In fact, after ruling during the inquiry, moving forward, the 3rd accused has been actively involved in the plea-taking process, where he entered a plea of not guilty by himself, and further, he has smoothly defended his case under the guidance of his counsel. And also, he has been lively and responsive to the questions put to him by counsels for the 1st and 2nd accused, as well as by the prosecution's counsels during cross-examination. In the end, in my judgment, looking on the circumstance in totality, I am certain that, the defence of insanity has not been verified to the satisfaction of the court. Lately, I am alive of the decision in Miburo Mussa vs Republic (Criminal Appeal No. 222 of 2022) [2024] TZCA 374 (20 May 2024) of which the steps to be taken when defence of insanity has been raised have been demonstrated. At worst, there might be certain flaws to follow the steps to the letter, but in my firm view, what has been transpired by the court with respect to this issue had not prejudiced DW3’s right to rely 92 on the defence of insanity. As stated above, DW3 has defended him self under oath, thus, he was at liberty to raise issue of insanity under warden of his advocate, and in fact he attempted, though his evidence was weak to support his claim. In such circumstances, all said and done, since the cautioned statement was properly admitted in evidence, then it forms part of the prosecution's evidence. And as for our laws, that can be the best evidence in the criminal case. See, for instance, Paulo Maduka and 4 Others v. R, Criminal Appeal No. 110 of 2007 (unreported). Moving ahead, it is also apparent that the evidence of identification of the accused persons given through the cautioned statement of the 3rd accused (exhibit P1) was corroborated by circumstantial evidence adduced by PW1, PW2, PW4, PW5, and PW6, respectively. In her testimony, for instance, PW1 has testified that the 1st accused, who is the stepson of the deceased, and the 3rd accused, who is her relative, were staying in her house in the last two days before the incident date. And, on 26/11/2019, the 1st and 3rd accused had left her house together in the morning and came back late at night around 0200 hours. On the next day, 93 that is, on 27/11/2019, about 0500 hours, she received news that the deceased was murdered. She asked the 1st and 3rd accused to attend the funeral, but the 3rd accused refused. Whereas, for the first accused, he was hesitant, but after she insisted to attend, he agreed, though he was very nervous. When PW1 asked him why he was nervous, the 1st accused responded that people might suspect him of murder because they have an inheritance conflict with the deceased. In the end, they went to the funeral together, and once they reached there, the 1st accused was arrested by police in connection to the murder of the deceased. Thus, the fact that the 1st and 3rd accused had stayed in PW1’s house two days before the incident and that, on the material day, they left the house and came back late at night corroborates with what was stated in the confession statement of the 3rd accused. In my endeavour to analyse a testimony of PW1, I have thoughtfully considered what was raised by defence counsels during cross-examination with a view to testing her credibility, if at all, which was shaken. Most notably, by looking through her written statement, exhibit DE1, and her oral evidence in general. However, although not every piece of evidence that she had testified resembled what comes from her written statement (exhibit 94 DE1), I am decisively satisfied that her credibility stands firm and was not shaken. Fairly to say, PW1 was firm in her testimony and also when she responded to questions put to her by the defence counsels. And so, as to the evidence, which was not part of her written statement, she stated that she was not asked of the same during interrogation by police. In my view, the omission does not at all affect what she knows about the instant case. And for her being a witness, she is not limited to testifying only on what she had previously recorded in her written statement taken at the police station. Generally speaking, the points that corroborate with the evidence in exhibit P1 are thus: that the 1st and 3rd accused were staying at her house, and that, on the fateful date (26/11/2019), the accused persons returned home late at night, and also that PW1 and the 1st accused had attended the deceased funeral together and were undisturbed by defence. Therefore, in my considered view, the credibility of PW1 remains intact, and her evidence attains weight. Likewise, looking at the testimony of PW2 that on 26/11/2019 he was at home, and Merea brought them food. And that, they ate and then went to sleep together with Erasto Sebu, and the deceased went to sleep too. After that, they heard a shout for help at night from the deceased’s house 95 and that they attempted to go out, but their house’s door was closed from outside by a log. Explaining further, PW2 stated that they tried to push the door, and at last it opened, and thus they went out. After they managed to get out, they saw two people run away to the bush. Instantly, they went to the deceased's house and found her to have been injured in the back by a machete. In my considered view, this piece of evidence corroborates what was admitted by the 3rd accused in exhibit P1. Thus, on the night of 26/11/2019, he and the 1st accused went to the house of the deceased and blocked the youth’s door from outside with a log. They then entered the deceased’s room and stabbed her in the back. And that the deceased made a shout for help, seeing that they finished her and ran away to the bush. Similarly, the testimony of PW4, PW5, and PW6 has substantiated a link connecting the fact to the 1st and 3rd accused persons to the extent that, after the accused persons were identified, they facilitated the arrest (PW4 and PW5), and further PW6 conducted an investigation. Therefore, the evidence of all those witnesses, together with that of PW1 and PW2, has accurately connected the chain of events linking to the identification of the 1st, 2nd, and 3rd accused persons. And in the end, they were all identified on 96 the dock. That is to say, in my opinion, the evidence of those witnesses corroborates the admission made by the 3rd accused in his confession statement that he, the 1st, and the 2nd accused persons were responsible for the murder of the deceased, one Merea Mahoba. In a similar vein, I have given stern consideration to what was raised by the defence, notably DW1, DW2, and DW3, with a view to ascertaining whether or not the testimonies of PW1, PW2, PW4, PW5, and PW6 may have been injured in any way. In my critical scrutiny of the same, I find the same was not damaged, and thus, I am satisfied that their credibility has been booked unharmed. In the end, based on the analysis hereinabove, I hold that, for the 1st and 3rd accused persons, this element of the offence of murder was proved without a shadow of a doubt. To underscore it more, as for the 3rd accused, though his confession alone has sufficed to warrant his conviction, his statement was also well corroborated by the testimonies of PW1 and PW2, respectively. As rightly submitted by the learned Senior State Attorney in his submission, thus, it is a trite law that an accused who confessed to a crime is the best witness. Therefore, I am convinced to embrace the same view. 97 See, for instance, in Emmanuel Eliabi @ Sanga vs. Republic (Criminal Appeal No. 327 of 2021) [2024] TZCA 3 (2 January 2024), it was held that: “The settled position is that the confession of an accused person, whether or not retracted or repudiated, can be relied upon by the court to ground the accused's conviction with or without corroboration. The most important things to be considered in its admissibility before relying on such a confession are: one, whether the confession was made voluntarily and properly; and two, whether the confession is true.” And, as for the 1st accused, in spite of being mentioned in the confession statement of the 3rd accused as his accomplice to the crime, yet again, the evidence of a co-accused was well corroborated by the evidence of PW1, PW2, and PW4, respectively. At this juncture, before making any conclusion, I have also deeply considered the defence testimonies of both DW1 and DW3 that they have not participated in the murder of the deceased and that they do not understand PW1 at all chances. On his side, DW1 further testified that he 98 was out of the village. However, in my view, such defence becomes futile as it was raised in violation of the law, which addresses an issue pertaining to alibi defence. Also, with respect to DW3, in his sworn defence testimony, he testified to have not been involved in the murder, and in fact, he does not know anything about the offence. In my opinion, his evidence has not shaken the strong evidence given by the prosecution’s witnesses. Therefore, I devalued the same. Finally, as for the 2nd accused, the only evidence that has pointed out his name is that of the co-accused through the confession statement of the 3rd accused, and none other. At this juncture, I am aware of the position of the law stipulated under Section 142 of the Evidence Act, which provides: “An accomplice shall be a competent witness against an accused person, and conviction is not illegal merely because it proceeds upon uncorroborated testimony of an accomplice.” According to the provision above, it is lawful to convict an accused person based on the evidence of a co-accused. However, that is a position of the statutory law, but its interpretation by the apex court is that, as a 99 matter of long practice, such evidence has to be corroborated. See for instance in Mike Nwankwo vs Republic (Criminal Appeal No. 200 of 2021) [2024] TZCA 773 (20 August 2024); Fanuel Joseph Mbedula v. Republic [1989] T.L.R. 221; R v. Sitta Joseph and Two Others [1977] L.R.T. 66 and Stephano Ndagizi and Another v. R [1994] T.L.R 62, where it was held that: “(ii) Evidence from a co-accused as in this case, is accomplice’s evidence and a court may convict on the accomplice’s evidence without corroboration, if it is convinced that the evidence is true, and provided that it warns itself of the dangers of conviction on uncorroborated accomplice’s evidence; (iii) although the law does not say that conviction on uncorroborated accomplice’s evidence is illegal, it is still unsafe, as a matter of practice, to uphold a conviction on the uncorroborated evidence of a co- accused.” 100 Consequently, in my own interpretation, based on the dictum used in both section 142 of the Evidence Act, as well as the above cited cases is that, the room to convict an accused person based on uncorroborated accomplice’s evidence has never been closed. If the court is so convinced, and warns itself on the danger to rely on the same, it can rely on uncorroborated evidence of a co-accused to enter conviction. This position has also been set forth in the decision of Herman Faida vs Republic, (Criminal Appeal 479 of 2019) [2021] TZCA 405 (24 August 2021), which at page 18 of the judgment, it has cited with approval the decision in Godfrey James Ihuya and Another v. Republic, [1980] T.L.R. 197, where it was held that: "...we agree in principle that the evidence of an accomplice needs corroboration for it to be acted upon against an accused. However, a conviction is not necessarily illegal for being based on uncorroborated evidence of an accomplice. We have said so in many occasions but one case shall surface to illustrate. This is the case of Godfrey Jam es I huya and Another v . 101 Republic, [1980] T.L.R. 197." (See also the case of Pascal Kitigwa v. Republic [1994] T.L.R. 65).” To this end, I have thoughtfully considered a confession of DW3 and the defence raised by DW2, whereas, DW2 has simply denied his involvement in the murder, and he further denied to have paid any persons who were involved in the murder of the deceased. In my view, his defence has not disturbed in any way the strong evidence of his co-accused which proves his involvement in the murder. Therefore, his defence evidence has accorded no weight to that effect. Thus, I disvalue it entirely. For instance, reverting into the case at hand, as for the 2nd accused, although he was only mentioned in the accomplice’s evidence of the 3rd accused confession, that he also participated in the murder by planning and facilitating the principal offenders, for this point, I am fully satisfied that such evidence of a co- accused was relevant and watertight. As I have critically analysed partaking of DW2 in the commission of the crime, I have consciously cautioned myself on the danger of relying on uncorroborated evidence of an accomplice. Fairly speaking, I acknowledge the risk which may be incurred by relying uniquely on such evidence. As such, sometimes it may come from unreliable witness. However, in my view, 102 this “dilemma of acceptance”, as I can call it, should not twitch the court in one corner. Since the test to convict the culprit under criminal law is clear thus, to prove the charge beyond reasonable doubt, therefore, its determination should be persistently rested in the hands of a trial judge. As it now seems to appear in our jurisdiction, the golden strict rule of practice pertaining acceptance of uncorroborated evidence of an accomplice starts to be lessened. See for instance in Godfrey Jam es I huya and Another v. Republic (supra), and also Herman Faida vs Republic (supra) where the court has departed from the strict ancient practice. Therefore, coming to the instant case, in my view, although it was not corroborated, cautiously, I find the accomplice’s evidence given be DW3 against DW2 to be true. Looking on the DW3 confession statement, he clearly explained on how DW2 has actively participated in the planning and facilitation of the murder. On that, DW3 has stated clearly that, DW2 has provided money (100,000/-) to DW1 and himself to be used for survival expenses during preparation time, and further, he informed them about deceased’s presence after she had returned to the village from her journey on the fateful day. Further to that tip, DW3 also mentioned DW2 to have been a part of the planning team together with DW1, DW3 and their late 103 father Mubi Mahoba Yohana since in their first meeting. That means, in my view, if it was not for his performance of his coordination role, this murder would not have been committed on that date. Generally, in my evaluation of evidence, I have noted some contradictions here and there of which, in my judgment, have not injured credibility of prosecutions’ witnesses. For instance, in the testimony of PW6 and exhibit P1, there is minor contradiction with respect to the fact as to who entered the deceased house and came out with knife after killing the deceased between DW1 and DW3. However, this contradiction is minor and it has not gone into the root of the matter. The bottom line of the matter is that, the two accused persons have physically participated in the killing of the deceased. Based on the accomplice’s confession, on the material date, both the 1st and 3rd accused were at the crime scene together, and upon each ones’ role, they manifested her death. Again, there an issue as to number of injuries inflicted into the deceased body, whether they were two as mentioned by PW8 and exhibit P2, or about multiple including on her armpit as stated by PW2 and PW3 respectively. Similarly, the contradiction is also minor which cannot shake credibility of the alleged witnesses. In such matter, as rightly pointed out by prosecution in their submission thus, it is a 104 trite law that the Court will only take into consideration contradictions which are not minor and go to the root of the matter. See in the case of Alex Ndendya vs R, Criminal Appeal No. 207 of 2018, Court of Appeal of Tanzania, at Iringa at page 14, it was held that: “The Court will only take into consideration contradictions which are not minor and go to the root of the matter.” In the end, after all said and done, I find the last element of murder thus; whether the accused persons have directly or indirectly taken part in the commission of the murder to have been proved in affirmative, thus beyond any reasonable doubt. Therefore, due to my final analysis, I find all three accused persons guilty of the charge. Consequently, I proceed to convict them for the offence of murder contrary to section 196 of the Penal Code, Cap. 16 R.E. 2019. Sgd, S. H. Hassan JUDGE 01/11/2024 105 SENTENCE Upon thoughtful consideration of what has been presented by the prosecution’s counsel, as well as by the defence counsel with respect to sentencing contemplations, at this far, I am aware that, owing to the circumstance of this case in totality, and for the reason that the accused persons have been in the custody for almost five (5) years, only waiting for the determination of their fate, I am sure, lesson have been learnt to themselves, their relatives and community at large. Indeed, the accused persons are very young and energetic, and for their age, they could have been a useful candidate in our national building. However, in the worst-case scenario, they let their chance unnecessarily vanished. At this stage therefore, no matter how sympathetic one can be, this offence entertains no substitute sentence apart from death sentence. That said, I hereby sentence the 1st convict, Heron Yohana Mahoba; the 2nd convict, Dickson Yohana Mahoba; and the 3rd convict, Hamisi Letema Kandiro, altogether to suffer a death sentence by hanging in terms of section 197 and 322 of the Penal Code, [Cap.16 R.E. 2019]. It is accordingly ordered. 106 DATED at DODOMA this 1st day of November, 2024. Sgd, S. H. Hassan JUDGE 01/11/2024 Right of appeal to the Court of Appeal duly explained to the parties. S. H. Hassan JUDGE 01/11/2024 107 Judgment delivered in presence of the accused persons, prosecutions and accused’s advocates. The accused persons have been punished to suffer death sentence by hanging. S. H. Hassan JUDGE 01/11/2024 108