NDERA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB REGISTRY AT TARIME CRIMINAL SESSION CASE NO 58 OF 2023 REPUBLIC VERSUS 1. NDERA S/O WILBROAD MWITA 2. OSOLO S/O BALIBUTA HAMIS 3. JOSEPH S/O MAHANGA GHATI 4. PATRICK S/O WILBRIAD MWITA @ TOTO 5. JOSEPH S/O KIANA THOMAS 6. BONIFACE S/O CHACHA JOHN CHACHA 7. MORONYA S/O MANG'ERA CHACHA @ MANUVA 8. HASSAN S/O MARWA MAKURI @ MUFATH JUDGMENT OF THE COURT 18/10/2024 & 10/12/2024 Kafanabo, J.: In the present case, eight persons namely Ndera Wilbroad Mwita, Osolo Balibuta Hamis, Joseph Mahanga Ghati, Patrick Wilbroad Mwita @ Toto, Joseph Kiana Thomas, Boniface Chacha John @ Chacha, Moronya Mang'era Chacha @ Manuva and Hassan Marwa Makuri @ Mufath i (hereinafter referred to as the accused) are indicted before this court for one count of murder contrary to section 196 of the Penal Code, Cap. 16 R.E. 2022. The particulars of the offence indicate that the accused on the 3rd day of April 2023 at Mpakani Village within the Tarime District in the Mara Region, murdered Juma Mwirinyi Chacha. The information for the offence of murder was read over to the accused who pleaded not guilty. It was alleged by the Republic that, the deceased is Juma Mwirinyi Chacha who was a security guard at a rice milling plant and a beer depot located at Mpakani Village within the Tarime District in the Mara Region. The incident occurred on the 3rd day of April 2023 at night hours at Mpakani Village within the Tarime District in the Mara Region when the deceased was on his night shift. It was also alleged that on the 2nd day of April 2023, before the incident; all accused persons conspired to invade, break, and steal from the said beer depot owned by Matiko Lyimo/Rimo after the fifth accused, one Joseph Kiana Thomas, and the sixth accused, Boniface Chacha John @ Chacha, had traced the presence of money in the said beer depot which was delivered at the said depot earlier. Therefore, on the material date (03/04/2023), they went to accomplish their mission. However, they found the deceased who was on a night shift guarding the depot and who was seen as an obstacle to their mission. The second accused, Osolo Balibuta Hamis, was assigned the task of killing the said security guard. The first, third, fourth, fifth, seventh, and eighth accused persons namely Ndera Wilbroad Mwita, Joseph Mahanga Ghati, Joseph Kiana Thomas, Moronya Mang'era Chacha @ Manuva And Hassan Marwa Makuri 2 @ Mufath respectively; were assigned to watch for the incoming people from different directions of the area they planned to implement their evil feat. Also Patrick Wilbroad Mwita @ Toto was assigned to break into the depot by using a 'master key' while Boniface Chacha John @ Chacha was to carry items to be stolen. The Republic also alleged that the second accused, Osolo Balibuta Hamis, took a huge stone and attacked the deceased from behind, the deceased was sitting on a chair when he was hit three times on the head by the 2nd accused. The deceased was then pushed by the 2nd accused and fell. The deceased suffered severe injuries and was bleeding profusely, hence he died on the spot. They pulled the deceased away from where he fell and thus all accused proceeded to steal the sum of TZS 2,900.000/=. In the early morning hours of 3rd April 2023, the deceased body was found lying dead, therefore, the incident was reported to the Sirari Police Station where the Police Officers arrived at the crime scene. The deceased's body was taken to the Sirari Health Center and examined. The cause of death was established to be excessive bleeding due to severe traumatic brain injury caused by the hit of heavy blunt object. It was further alleged that, on diverse dates and places, all the accused were arrested and upon interrogation, the 2nd accused, Osolo Balibuta Hamis, confessed to committing the crime and mentioned his fellow culprits. The accused were, thereafter, brought before this Court and charged with the offence of murder. 3 Since the accused pleaded not guilty to the information for murder, the case had to proceed to full trial. At the hearing the prosecution was represented by Ms. Damari Nyange, Mr. Titus Aron, and Mr. Obeid Kasambala, learned State Attorneys, the accused were represented by Messrs. Tumaini Kigombe, Juma Mwita, Shadrack Belbembe and Ms. Mary Samson (learned Advocates). In an attempt to prove that the accused were responsible for the murder of the deceased, the prosecution paraded seven (07) witnesses and tendered six (06) exhibits. The testimonies of the prosecution's witnesses on record are that of PW1- Goodluck Laurent James, PW2 - Hon. Marwa Robart Msabi, PW3- G.7427 CpI. Abdallah, PW4- SP Aron Mihayo, PW5- G.7362 D/Cpl Anthon, PW6- Neema Emmanuel, PW7- Dr. Josephat Kerambo. The testimonies of the said witnesses were supported by the exhibits tendered and admitted including a chain of custody record (admitted as exhibit Pl), the stone found at the crime scene (admitted as exhibit P2), certificate of seizure (admitted as exhibit P3), a sketch Map of the crime scene (admitted as exhibit P4), the caution statement of Osolo Balibuta Hamis (admitted as exhibit P5), and Postmortem Examination Report of the body of Juma Mwirinyi Chacha (admitted as exhibit P6). The prosecution case was opened by the testimony of Goodluck Laurent James, who testified as PW1. He testified that on 02/04/2023 he was sick and thus was at home in Bwitanga, Sirari in the Tarime District. Then at 04.00 p.m. when he went to the pharmacy to buy medicine, Ndera Mwita (the 1st accused) called him and requested that they meet. They met at 'Mtaalamu B' guest house, and there was a pharmacy nearby. Upon 4 arrival, he found the 1st accused who was with another person whom he did not recognize properly. He was told by the 1st accused that there was a deal that they wanted him to be part of. They told him that at 1.00 a.m. that day, they should meet at the depot of Matiko as there was money, and thus they intended to break into the said depot and steal the money. The 1st accused also told him that other people including Osolo, Toto, Kiana, Joseph, and Moronya were already prepared and would be involved in the implementation of the plan. PW1 said that he refused to join them and left. PW1 further testified that on the following day which was 03/04/2023 when he was at the booth of his father's business, he heard that the shop which was not far from his father's booth had been broken into. Then he went to witness the incident, upon reaching the place, he found many people gathered and the presence of police officers, then he saw a police car leaving carrying a body and he was told that the car had carried the body of Juma, the security guard of the shop, who had been killed. He identified the place broken into as the place he was told the day before by the 1st accused that would be broken into. Then he went back to his father's booth and later (after some days) he was followed by the 1st accused who gave him TZS 150,000/= and told him that he should keep the secret and should not say anything about the said criminal incident because the 1st accused is the one who broke into the said shop. It was further testified by PW1 that since he was still sick, he was shocked by the news and went back home. After getting well within a few days, on 09/04/2023 he went to the Sirari Police Station to meet the Officer Commanding Criminal Investigation Department (OCCID). In a meeting with 5 the OCCID by the name of Mihayo, he explained what happened and he mentioned the names of the culprits as Osolo, Ndera, Kiana, Toto, Moronya, and Mufath, and he handed over the TZS 150,000/= he was given by the 1st accused to the said OCCID. Thereafter his statement was taken by the police. PW1 also identified some of the accused seated at the dock as Osolo, Toto, Ndera, Kiana, and Mufath and could not identify the other accused. He also testified that he had known the persons he had identified here in court before the incident as they lived together at Sirari. In cross-examination, PW1 testified that he did not mention the mobile phone number that the 1st accused used to call him and that he mentioned the accused only by one name when at the police. He also testified that when he went to the place where the incident occurred he saw Matiko's shop that was broken into. It was also testified by PW1 that before reporting the matter to the police on 09/11/2023, he called one police officer by the name of Cyril on 08/04/2023 and that in his statement at the Police, he did not explain that he called Cyril first. PW1 also testified that he got the information of the intended incident on 02/04/2023 and he reported the news of the incident to Cyril first on 08/04/2023 because he had his mobile phone number. He also testified that the news that he received at first was not good as they were going to break Matiko's shop, but he was prevented from reporting the matter because he was sick and had no income to recharge his airtime. He also testified that even though he was able to walk to the place where the incident happened and met the police officers, he did not report anything about the plan to commit the crime before 08/04/2023. 6 PW2 was Hon. Marwa Robert Msabi who works as a magistrate at Sirari Primary Court in the Tarime District. He testified that on 12/04/2023, at 02:34 p.m. a police officer by the name of D'CpI Simione went to his office with one suspect by the name of Osolo Balibuta Hamis (the 2nd accused). He explained to him that the person he brought along was a suspect in a murder case, and he was brought before him because he wanted to make an extra- judicial statement. PW2 explained other procedures he followed before recording the statement of the 2nd accused, that the 2nd accused was ready to give his statement voluntarily, and that he had not been compelled by anyone. The suspect confessed to him that he killed a person called Juma by hitting him with a stone six times on the head and he was with his fellow culprits. PW2 also explained the procedures he followed after recording the statement of the 2nd accused. However, the purported extra judicial statement of the 2nd accused was not admitted as an exhibit in court because of the serious legal defects on the face of it. PW3 was G.7427 CpI. Abdallah testified that he was the exhibit keeper at the Sirari Police Station. On 03/04/2023 he was at the police station in the exhibits room. Then a police officer with number G.7365 D'CpI. Anthon arrived and handed over to him a stone in respect of which PW3 was informed that it was regarding a murder case that took place at Sokoni hamlet in Sirari. PW3 received the stone and labelled it by using the case number which was SIR/IR/699/2023. The stone which he labelled had blood tints and the handover of the same was through a chain of custody record and then he kept the stone in the exhibits room. The chain of custody 7 document dated 03/04/2023 was admitted as exhibit Pl. Also, the stone marked SIR/IR/699/2023 was admitted as exhibit P2. Moreover, in cross-examination, PW3 testified that the register of exhibits which is PF16 used to register the exhibit, case number, time, date of receipt the person who brought the exhibit, and the type of exhibit was not tendered as an exhibit in Court. He also admitted that according to the chain of custody record (exhibit Pl), today's date is not indicated on who brought the exhibit to Court. It was also testified that PW3 did not take the stone to the laboratory to prove that the blood on the stone belonged to the deceased. PW4 was PF16327 SP Aron Mihayo who testified that he has been the OCCID of the Sirari Police District since the year 2020. On the morning of 03/04/2023 when he was at the Sirari Police Station, he was called by a person called Julius who told him that at his depot where he stores rice, his security guard had been killed. Thereafter, PW4 and the team of investigators (CpI. Anthony, CpI. Cyril, and CpI. Simon) went to the crime scene at Forodhani, in the Mpakani Village. At the crime scene, they found the body of Juma, a security guard lying on the ground, and other people who had gathered at the crime scene. Julius and his wife by the name of Neema were also at the crime scene. The body of the deceased was lying on a footpath between the house in which the depot is located and the makeshift/improvised wood store. The body of the deceased, especially on the face, indicated that it was hit by a hefty blunt object. 8 PW4 further testified that they then enclosed the crime scene in order to prevent other people from contaminating the same until they finished their professional work. At the crime scene, they found a stone as an exhibit and the body of the deceased. Then CpI. Anthon drew a sketch map of the crime scene, and thereafter they took the body of the deceased to the mortuary and the stone to the police station. Thereafter, they went back to the crime scene to watch the CCTV camera footage in the depot of Mr. Julius Magwi, however, the same was not clear and thus not helpful in identifying the culprits. The further testimony of PW4 was that they continued with the investigation, and in the afternoon of 09/04/2023 when PW4 was at the Sirari Police Station, one person called Goodluck went to his office and explained that he called PW4 that day, and the day before he talked to CpI. Cyril. He told PW4 that he knew who was involved in the murder of the said Juma, a security guard. He knew them because the culprits wanted to involve him in the commission of the offence of breaking into Matiko's shop and the depot which was there in order for them to get money and other properties from the said shops/depots. It was further testified that the said Goodluck mentioned to PW4 the names of people involved in the commission of the crime including Mwita Ndera, Kiana, Moronya, Toto, Mofath, Mahanga, and Boniface. He told PW4 that he was informed by Ndera that they were planning to commit a crime with the other persons. The said Goodluck refused to participate in the said mission, he did not go. However, after the commission of the crime, the 1st 9 accused, went to meet the said Goodluck and gave him TZS 150,000/- so that he could keep the secret. PW4 further testified that they started to follow up on the matter to arrest the culprits. The said Goodluck advised them that the person who could be easily arrested was Osolo, the 2nd accused, who was in the area around Kampala Road. Then they arrested the 2nd accused on 09/04/2023 at around 7.00 p.m. at Kampala Road, which is at Forodhani in Mpakani Village, and he was taken to the Sirari Police Station immediately and the 2nd accused promised that he would cooperate with the police. PW4 also testified that he interviewed him briefly about the murder incident, the 2nd accused orally admitted to having committed the offence whilst quivering and mentioned all other accused persons present in court. Thereafter, PW4 testified that he noted that the information they received from the 2nd accused and Goodluck had tallied and then his caution statement was taken. PW4 further testified that they continued to look for other suspects and until 20/04/2023 they had succeeded in arresting all the accused persons namely, Mwita Ndera, Moronya, Kiana, Mhanga, Boniphace, Patrick- Toto, and Hassan Mofath. PW4 testified that they were able to identify the accused persons because they were habitual offenders as they had been taken to the police several times, and they were known. PW4 also identified six of the the accused persons by pointing at them at a close range in court as Mwita Ndera, Moronya, Kiana, Mahanga, Boniphace, and Osolo. In cross-examination, PW4 testified that the footage of the CCTV camera could not identify the persons who committed the offence. PW4 also io did not dispute the fact that Goodluck knew all the plans of the commission of the offence before it was committed on 3rd April 2023, but the said Goodluck did not give any information on the Commission of the offence before it was committed. PW5 was G.7362 D'CpI Anthon, a police officer at Sirari Police Station. He testified that on 03/04/2023, PW4 was informed of the murder incident at Forodhani Hamlet. Then PW4, PW5, and other police officers went to the crime scene. Upon arrival, they found the body of a male person lying on the ground in the sideway/footpath separating the rice milling plant of Julius Magwi and a makeshift wood store of Joseph. On the side near the body of the deceased, there was a huge stone tainted with blood. The body of the deceased had a wound on the face and other small wounds on the head. Then Julius Magwi with his wife Neema Emmanuel who arrived at the crime scene earlier said that the deceased's name was Juma Mwirinyi Chacha who was the security guard of the rice milling plant. Thereafter, the crime scene was secured to prevent contamination. Then the body of the deceased was taken to the Sirari Health Center for examination. It was also testified that they reviewed the recording or video footage of the CCTV camera and concluded that it did not show the proper image of the assailant. Thereafter, they seized the stone by filling a certificate of seizure witnessed by Neema Emmanuel. PW5 also drew a sketch map of the crime scene whilst being led by Neema Emmanuel. PW5 also testified that the deceased was guarding the Rice Milling Plant of Julius Magwi and the depot of Matiko Lyimo/Rimo which was broken into and properties stolen. li PW5 also testified that they went to the Sirari Police Station, and the stone seized from the crime scene was handed over to the exhibit keeper, G.7427 CpI. Abdallah by using the chain of custody record. The stone was labelled SIR/IR/699/2023. Exhibits Pl and P2 were positively identified by PW5, who also tendered the certificate of seizure dated 03/04/2023 which was admitted as exhibit P3. It is also on record that PW5 tendered a sketch map of the crime scene dated 03/04/2023 which was admitted as exhibit P4. It was further testified by PW5 that on 03/04/2023 he was appointed the investigator of the present case bearing file number SIR/IR/699/2023, and thereafter he continued with the investigation. On 04/04/2023 PW5 and the relatives of the deceased went to the Sirari Health Center where the body of the deceased was identified by the relatives as that of Juma Mwirinyi Chacha. Then the medical doctor conducted the examination and concluded that the death of the deceased was caused by severe bleeding because of the smashed skull. Thereafter, the body of the deceased was handed over to the relatives of the deceased for other necessary steps. Then the doctor filled out a postmortem report which was handed over to PW5. On 09/04/2023 PW5 was given information by the OCCID SP Aron Mihayo that he received information from an informer that the persons involved in the murder of Juma Mwirinyi had been exposed and known. On the same day at around 7.00 p.m., the 1st suspect we arrested and after the arrest he identified himself as Osolo Balibuta Hamisi. Thereafter, they took him to the Sirari Police Station, then the OCCID interviewed the suspect on the murder case of Juma Mwirinyi and the suspect confessed orally that he and his conspirators were involved in the murder of the deceased. 12 Thereafter, PW5 was instructed to take the suspect's caution statement which he gave voluntarily after following the required procedures. The said Osolo Balibuta Hamisi confessed to having killed Juma Mwirinyi together with his conspirators namely Patrick Wilbroad Mwita@ Toto, Joseph Mahanga, Sila, Kirikuba, Juli, and Justine. The caution statement of Osolo Balibuta Hamisi, the 1st accused, was admitted as exhibit P5. PW5 also identified the accused in Court by touching him at the dock. The testimony of the PW5 also indicated how other accused were arrested on different dates and places within the Tarime District and their statements were taken. It was his testimony that after reading all their statements all the accused had an evil plan of killing Juma Mwirinyi Chacha, and after killing him, they planned to go to the depot of Matiko Rimo/Lyimo. He also knew that exhibit P2, the stone, was used to commit the crime because the 2nd accused confessed to having used the stone in committing the crime. There was no other examination that was done on the stone, as the confession of the 2nd accused was enough to prove that it was used in the commission of the offence. PW5 also identified the accused they arrested who were in Court as Joseph Kiana, Hassan Marwa Mufath, Osolo Balibuta Hamis, Boniface Chacha, Moronya Mang'era, Patrick Wilbroad@ Toto, Joseph Mahanga, and Ndera Wibroad by touching each one of them and mentioning their names. PW5 testified further that he knew some of the accused because of the offences they committed in the past and they were taken to the police station and others due to their daily activities. 13 In cross-examination, PW5 testified that some of those persons mentioned by Osolo in his caution statement are not the same names as those in the information filed before this Court. He did not remember the names of the suspects mentioned by Osolo whose names are not the same as those appearing in the information, but he remembered the names of the suspects which are also the same as those in the information. It was also testified that the 2nd accused knew all the accused before the date he gave his caution statement. In further cross-examination, PW5 testified that they went to the crime scene on the morning of 03/04/2024 as they left the police station heading to the crime scene shortly after 06.00 a.m., and the crime scene was not far from the police station. It is also on record that the person who guided him in drawing a sketch map did not witness the commission of the crime, but knew the spot where the deceased was seated before being killed. He also did not remember how much time he used to draw a sketch map. He testified that according to exhibit P3, the stone was seized at 4:30 p.m. and, according to exhibit P4, the map was drawn at 5:00 p.m. PW5 also testified that the CCTV camera footage showing that the deceased is being hit by the stone has not been tendered as an exhibit in Court. He further stated that the stone he ceased had blood stains, but no scientific report has been tendered to show that the blood on the stone was that of the deceased and that the blood of a human being and other animals including cow and goats is all red. PW6 was Neema Emmanuel Magige who testified that the deceased, Juma Mwirinyi Chacha, was her security guard, he was guarding her rice 14 depot which is located at Forodhani Street, Mpakani village in Sirari. She had employed him from 2021 until 2023 when he died. On the morning of 03/04/2023 when at home she was informed that their security guard had been killed and thus she and her husband went to the crime scene at their depot in Sirari. Upon arrival, they found that their security guard had been killed. He had been killed and put on a footpath lying on his back. There was also a big stone beside him tainted with blood. It was clear that the deceased had been hit by a heavy blunt object on the face and he was bleeding on the face. Then PW6's husband, Julius Magwi, called a police Officer called Mihayo who went with other police officers to the crime scene. After the arrival of the police officers, they carried the body of the deceased to the Sirari Health Centre. Then PW6, her husband, and the police officers reviewed the recordings of the CCTV camera installed at the building where the incident occurred which, however, was not showing clearly. PW6 also testified that the deceased was also guarding other shops in the area, and at her place of business the door of the depot had been opened by the culprits. Also, the depot of her neighbor, Matiko, who was selling beer was broken and money stolen. She further testified that she guided PW5 in drawing the sketch map of the crime scene (exhibit P4) which she identified, PW6 also identified a certificate of seizure for the stone (exhibit P3). In cross-examination, she testified that she signed on a paper (certificate of seizure) after the stone was seized from the scene of the crime. 15 She also signed the sketch map in the morning of the fateful day after the stone was seized not when the stone had been taken from the crime scene. Moreover, Mr. Josephat Kerambo Mwita testified as PW7. He testified that he works as a medical doctor at the Sirari Health Centre which is in Rural Tarime. On 04/04/2023 when working at the Sirari Health Centre, at around 1:35 p.m., a police officer who identified himself as Anthon arrived, whilst accompanied by two relatives of the deceased to attend postmortem examination. At the mortuary, the relatives of the deceased identified the body of the deceased as that of Juma Mwirinyi Chacha. The head of the deceased was covered in blood, and on the face, the deceased was hit by a heavy object, the skull was shredded on the face, and on the back head, the deceased was also hit by a heavy object. On both sides, that is on the face and rear part of the head the brains had leaked. Other parts of the body had no injuries. The death of the deceased was caused by serious wounds and massive bleeding. Thereafter, PW7 prepared a postmortem report on the body of Juma Mwirinyi Chacha dated 4th April 2023 which was admitted as exhibit P6. After the testimony of PW7, the prosecution closed their case and all the accused were found with a case to answer. The accused were thus invited to enter their defence in terms in terms of section 293 of the Criminal Procedure Act, Cap. 20 R.E. 2022. All the accused chose to defend themselves under oath and without tendering any exhibit. 16 The defence case was opened by the testimony of Ndera Wilbroad Mwita, who testified as DW1. He testified that he was arrested on 09/04/2023 at Forodhani, Mpakani Village in the Tarime District by four police officers. He never confessed to the commission of the crime and it is not true that he was involved in the killing of Juma Mwirinyi Chacha with the seven other accused in this matter. He testified further that on the day of the incident 03/04/2023, he was at home in Sokoni village in the Tarime District. In cross-examination, DW1 testified that on 09/04/2024 he was arrested alone, he did not quarrel with Osolo Balibuta Hamis and did not know him. He heard about the name of Osolo Balibuta Hamis on 16/05/2023 when charges were read over to him in the District Court of Tarime. The testimony of Anthon (the investigator) and the statement of the 2nd accused on him being involved in the murder was a lie. He also testified that he did not know PW1, Goodluck, he never met him and saw him for the first time in Court testifying. He also testified that he did not explain to the Court about his whereabouts on the night of the commission of the crime and that he did not deny giving money TZS 150,000/= to PW1 because his advocate did not ask him about that and he said Goodluck did not tender or prove that he was given money by DW1, it was mere words. DW2 was Osolo Balibuta Hamis who testified that on 03/04/2023 he was at his home, at Sirari and it is not true that he was involved in the murder of Juma Mwirinyi Chacha. He heard about the commission of the crime for the first time on 16/05/2023, but he was arrested for the 1st time on 12/04/2023 and was not informed about the offence which he committed. 17 He was arrested by three police officers whom he did not know their names at the Sokoni area where he sells vegetables. DW2 testified that after the arrest, they covered the upper part of his body with an empty sack which is usually used to store maize, and thus he did not know to which place they took him, he was put in a small room and later he was taken out of that room, covered with a sack and he found himself at the Sirari Primary Court, and later he was returned to the police station, all that took place on 12/04/2024. At the police station, he was simply asked his name and remanded. DW2 further testified that the alleged caution statement admitted in this court as exhibit P5 was not his and that the contents of the same are not true. Also, he did not know any of the other accused persons and did not have any relationship with them. He also denied knowing Goodluck who testified as PW1, and he saw him for the first time here in court. In cross-examination, DW2 testified that he did not confess to the commission of the crime and PW5, the police officer Anthon, did not take his statement, the said caution statement is untrue, it is not his. He testified further that the caution statement admitted as exhibit P5 was not objected to by his advocate because the statement was not his. He also denied that PW2 wrote his extra-judicial statement and that he did not confess to PW2 in killing Juma Mwirinyi Chacha. DW2 also testified that he came to know about the death of Juma Mwirinyi Chacha when the charges were read in the District Court of Tarime, and he came to know about the name of police officer Anthon when he 18 identified himself here in Court, before he knew him as any other police officer. DW3 was Joseph Mahanga Ghati who testified that he was arrested on 03/04/2023 by three police officers at Soko-Mjinga, Forodhani, in the Mpakani Village, Tarime District. He denied killing Juma Mwirinyi Chacha and that on 03/04/2023 he was at his shop located at Forodhani Hamlet, in Mpakani Village, in the Tarime District selling bambara groundnuts. In cross-examination, DW3 testified that he was arrested on 03/04/2023, and it is not true that he was arrested on 17/04/2023 as testified by PW5. It was also testified that Osolo (the 2nd accused) did not mention DW3 as a conspirator because he did not tender any exhibit to prove that to the Court. DW3 also testified that he did not know the said Osolo and thus could not have quarreled with him. DW4 was Patrick Wilbroad Mwita, who testified that he was arrested by four police officers on 09/04/2023 at a Karantini Hotel, in Sirrah at Tarime. He never confessed that he committed the crime he is charged with and he did not kill Juma Mwirinyi Chacha because the evidence adduced by the prosecution was untrue taking into account that he did not know the other accused persons, save for Ndera Wilbroad Mwita who is his elder brother. On 03/04/2023 he went to his workplace and in the evening he went back home. He usually opened his workshop at 6.00 a.m. or 7.00 a.m., he conducted his activities in the Sokoni area, in Sirari, and on the day alleged day of the incident he closed his business at 6.00 p.m. to around 7.00 p.m. In cross-examination, DW4 testified that it is true that his famous name is Toto. It is not true that as PW1 testified he was involved in the plan to kill 19 Juma Mwirinyi Chacha. He did not explain his whereabouts on the night preceding 03/04/2023 because his advocate did not ask him that question. He also testified that it was not true that Osolo wrote a statement because Osolo said so herein court. He denied the alleged fact that Osolo cooperated with him to commit the offence they were charged with and did not know how the master key works, and he did not have the said keys. DW5 was Joseph Kiana Thomas who testified that he was arrested on 13/04/2023, by five police officers at Forodhani Hamlet, in Sirari. He never confessed to the murder of Juma Mwirinyi Chacha and did not know about the murder incident on 03/04/2024. On that date, he was at his home at Forodhani, in the Mpakani village in the Tarime District. When cross-examined he testified that he lives at home with his children and that he had separated from his wife. His first child has six years and the 2nd one is two years old. On the night preceding 03/04/2024, he was at home with his children whom he could not call as witnesses because he was remanded and he did not know the other accused arraigned in Court. He denied being one of the conspirators who committed the offence of murder as testified by PW5, and that he was not aware of the plan to commit a crime. DW6 was Boniface Chacha John @ Chacha, who was arrested on 15/04/2023 at Tarafa Stadium in the Tarime District. He was arrested by four Police officers but did not confess to committing the murder of Juma Mwirinyi Chacha which took place on 03/04/2023. He denied knowledge of the incident and did not know any of the accused persons. On 03/4/2024 he 20 was in Kenya, in a place known as Ntimaro where he went on 2nd April 2023 and came back on 03/04/2023 and was at home doing his daily activities. In cross-examination, he testified that he was a bodaboda rider and the motorcycle he rode had registration number MC696CVJ, make Supertiger. The motorcycle was his because he rode it under contract and completed the contract. He said he did not provide a ticket to Kenya because he used private transport. He never quarreled with Osolo or Goodluck because he did not know them. DW7 was Moronya Mang'era Chacha who testified that on the night preceding 03/04/2023, he was at home, he did not know the date and when the incident happened. He denied being a criminal as testified by PW4 and he also refuted the alleged fact that he knew PW1, Goodluck, or any of the accused persons before the Court. He testified that it was not true he and other accused persons conspired to kill Juma Mwirinyi Chacha, and he never confessed to killing Juma Mwirinyi Chacha. In cross-examination, he denied the allegations by PW4 (SP Mihayo) who testified that he was once involved in the case of the security guard of MT and that it is not true that he was discharged by the Court. Hassan Marwa Makuri testified as DW8. He testified that he did not know any of the other seven accused persons, and did not have any relationship with PW1- Goodluck and did not know him. On 03/04/2024 he was in Mwanza, at Bugando Hospital, and in the afternoon before the day Juma Mwirinyi was killed, he was in Mwanza. He did not know anything about the murder incident of Juma Mwirinyi, because when the incident occurred 21 he was in Mwanza, and he had never been a criminal as alleged by PW4. He further testified that it is not true that he was involved and conspired to kill Juma Mwirinyi Chacha and he did not confess to killing Juma Mwirinyi Chacha. When cross-examined by the learned state attorneys, he testified he was out of the Mara region when the offence was committed, but could not bring tickets because he did not keep them, but he was at Mwanza caring for his sick younger brother who passed away the day he was first arraigned in court. He never quarreled with Goodluck and did not know him. He also testified that he heard about the police force making up cases against other people. Now, he is the victim because P.I. No. 15/2023 at the District Court and the High Court Criminal Session Case No. 58/2023 have been made against him. After the testimony of DW8, the defence closed their case. Since both parties closed their cases, and none of the parties opted to sum up their cases, this court is left with its final duty of determining the matter as per law. Therefore, in the light of the evidence above, and as depicted in the proceedings, this court is called upon to determine whether the Republic has proved her case that the accused named herein above are responsible for the murder of Juma Mwirinyi Chacha (hereinafter the deceased) beyond a reasonable doubt. In satisfying the quest in that respect, this court is guided by the provisions of section 196 of the Penal Code Cap. 16 R.E. 2022 which reads: 22 'Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder' In light of the above section, and in order to prove that a person is guilty of murder it must be proved that the death of a person has been caused by an unlawful act or omission with malice aforethought. It is also the salutary principle of law and practice that the prosecution in criminal trials has to establish and prove the allegations beyond a reasonable doubt as required by law, whose duty never shifts to the accused. Section 3(2)(a) of the Evidence Act, Cap. 6 R. E. 2019 is relevant; also see the cases of Six Ilanga @ Msaka vs Republic (Criminal Appeal No. 484 of 2020) [2024] TZCA 95 (23 February 2024), John Dickson @ Ngongole vs Republic (Criminal Appeal No. 477 of 2021) [2024] TZCA 144 (29 February 2024) and Awadhi Abrahamani Waziri vs Republic (Criminal Appeal No. 303 of 2014) [2015] TZCA 274 (24 February 2015). Also in the case of Mohamed Said Matula v. Republic 1995 TLR 3, the Court of Appeal held that: "Upon a charge of murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused; the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence." It follows that in order to prove the aforesaid, the answers to the following questions are vital; one, whether the said Juma Mwirinyi Chacha is dead, if that is answered in the affirmative, the ensuing question would be how did he die? That is, whether his death was a result of a natural or 23 unnatural cause. Then if the cause of death is unnatural, then who caused the death of the deceased, and whether the causation was a result of a lawful or unlawful act or omission. The last question would be whether the causation was with malice aforethought. In the case of Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78 (21 February 2024), it was held that: "It is a settled position of the law that in proving the offence ofmurder 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 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. " At the outset, it is important to point out that in this case there is no eyewitness to the crime allegedly committed by the accused. The prosecution's case, therefore, rests on circumstantial evidence and the caution statement of the 2nd accused. Reflecting on the principles of relying on circumstantial evidence in convicting the accused, it is a trite law that circumstantial evidence must lead to the irresistible conclusion that the accused is guilty of the offence he is charged with. See the cases of Mathias Bundala vs Republic (Criminal Appeal 62 of 2004) [2007] TZCA 16 (16 March 2007), Jimmy Runangaza v. Republic, Criminal Appeal No. 159B of 2017 (unreported). Also see the cases of Ally Bakari v. The Republic (1992) TLR 10; Hassan Fadhili v. Republic [1994] TLR 89; Shabani Mpuzu @ 24 Elisha Mpunzu v. Republic, Criminal Appeal No. 12 of 2002(unreported); and Mark Kasimiri v. Republic, Criminal Appeal No. 39 of 2017 (unreported). Therefore, in this judgment, the court will address the evidence on record in the light of the above consideration gauging together with the caution statement of the 2nd accused. Now, therefore, in answering the first question that is whether the said Juma Mwirinyi Chacha is dead, the testimonies of PW4-SP Aron Mihayo, PW5- G.7362 D/Cpl Anthon, PW6- Neema Emmanuel, and PW7 Dr. Josephat Kerambo are vital. PW4, PW5, and PW6 testified that they found the body of the deceased lying on the ground at the footpath whilst severely wounded on the head and later it was taken to the Sirari Health Center where it was preserved. Moreover, PW5 and PW7 testified that when at the mortuary the body of the deceased was identified by the relatives of the deceased as the body of Juma Mwirinyi Chacha. It is also on record that PW7 further testified that the head of the deceased was covered in blood and on the face, the nature of the wounds indicated that the deceased was hit by a heavy object as the skull of the deceased was shredded on the face and the back head. Given the wounds, it is also clear that the deceased was also hit by a heavy object on both sides of the head, that is on the face and rear part of the head where the brains had leaked. PW7 concluded that the death of the deceased was caused by serious wounds and massive bleeding. The testimony of PW7 was supported by a postmortem report which was admitted by this Court as exhibit P6. 25 In light of the above testimonies, it is undoubtedly clear that Juma Mwirinyi Chacha is dead and he died an unnatural death because of the nature of the wounds inflicted on his head which led to massive loss of blood. It follows that the first and second questions have been answered affirmatively. The next question is who caused the death of Juma Mwirinnyi Chacha? In entangling this question the testimonies of PW1, PW4, and PW5 are important. According to the testimony of PW1 he testified that he was called by DW1, the 1st accused, on 2nd April 2023 although he was sick he was able to go and meet him. In their meeting, the 1st accused asked PW1 to be part of the plan to break into and steal from the depot of Matiko at 1.00 p.m. that night because there was money stored there. It was also testified that the said 1st accused mentioned the names of other persons namely Osolo, Toto, Kiana, Joseph, and Moronya who were already prepared. PW1 said that he refused to join them and left. It is clear from the testimony of PW1 that although he received the information of a planned commission of a crime he did not tell anyone, or report the same to the relevant authorities including the police. It is also on record that on 03/04/2023 when PW1 was at the booth of his father's business, he heard that a shop had been broken into, which was not far from his father's booth. He saw many people gathered, he went to the crime scene and found that the depot which the 1st accused told him that they intended to break into the day before, had been broken into. He saw a police car leaving with the body of a person and was told that the car had carried the body of Juma, the security guard of the shop, who had been 26 killed. Then he went back to his father's shop, again, PW1 did not report to the police the information he received the day before despite seeing that what he alleged to have been planned by the 1st accused had been committed. PW1 again testified to the court that some days after the incident, he was followed by the 1st accused who gave him TZS 150,000/= and told him that he should stay silent and should not say anything on the said criminal incident because he (the 1st accused) was the one who committed the criminal act. PW1 also did not report this information immediately to the police. Instead, he allegedly called a police officer by the name of Cyril on 08/04/2023 informing him of what he knew about the incident that led to the murder of the deceased, and was advised to report the same to the OCCID at Sirari Police Station which he reported on 09/04/2023. The said testimony was to some extent reiterated by PW4, the OCCID of the Sirari Police District, but he did not acknowledge the receipt of TZS 150,000/= from PW1. Neither the said money nor the certificate of seizure was tendered as an exhibit in Court. The same line of narration was reiterated by PW5 as regards the information received by PW1 and the events that ensued after 02/04/2025. In light of the above, this court asks itself whether the testimony of PW1 is worthy of consideration and whether he is a reliable witness. It is trite law that every witness is entitled to credence unless there is reasonable ground or cogent reasons not to believe in him. See the cases of Mathias 27 Bundala vs Republic (Criminal Appeal 62 of 2004) [2007] TZCA 16 and Goodluck Kyando v. Republic 2006 TLR 363. The testimony of PW1 raises eyebrows on his credence and reliability as a key witness of the prosecution because of the following: i. He allegedly received information on a plan to commit the crime at Joseph Matiko's depot on 02/04/2023 but he did not report the same to the police because he alleged to be sick. However, he managed to go to the guest house where the meeting was allegedly convened by the 1st accused and to the pharmacy to buy the medicine, but not the police station which according to the evidence on record was within the vicinity of Sirari where the offence was committed. ii. PW1 also on 03/04/2023 went to his father's business booth and managed to go to the crime scene where the plan he was aware of the day before was allegedly carried out. He saw the body of the dead being carried away in the presence of many people and police officers but did not report the matter to the police because he was allegedly sick, and he retreated to his father's business booth. iii. PW1 also in a few days after the plan he was allegedly aware of was carried out, he met with the 1st accused who told him that he was the one responsible for the incident at the depot where the deceased was killed. PW1 also alleged to have been given TZS 150,000/= so that he could keep secret of the incident, again this was not reported immediately to the police until 09/04/2023. 28 iv. Moreover, PW1 did not prove to this court that he was truly sick during the said time by any medical report or any oral testimony of any health worker who attended him. v. The inability of PW1 to report the plan of the commission of the crime because of the alleged sickness raises doubts because PW1 was able to attend other matters including meetings and gatherings save for reporting the matter to the police. vi. The money allegedly given to him by the first accused, being an important exhibit in proving the alleged evil plan of the 1st accused was neither tendered in court as an exhibit nor proved to whose pocket they disappeared into. vii. The seven days that had elapsed (from 02/04/2023 to 09/04/2023) without reporting the matter to the police raise doubt as to the reliability of PW1 as a witness and credence of his testimony on a serious offence of murder facing the accused. Under the law, PW1 was required to report his knowledge of the plan or intention to commit the offence immediately or without delay as provided for under section 7(1) of the Criminal Procedure Act, Cap. 20 R.E. 2022 (hereinafter referred to as the 'CPA'). The relevant section reads: 7. -(1) Every person who is or becomes aware- fa) of the commission ofor the intention ofany other person to commit any offence punishable under the Pena! Code; or 29 (b) of any sudden or unnatural death or death by violence or of any death under suspicious circumstances or of the body of any person being found dead without it being known how that person died, shall forthwith give information to a police officer or to a person in authority in the locality who shall convey the information to the officer in charge of the nearest police station. Besides it is trite law that the credibility of a witness may be ripped by the delay in mentioning the culprit of a criminal act, and the same may be heightened by reporting or mentioning the accused immediately after the incident because it is an assurance of his reliability. This position has been reiterated by the Court of Appeal in a plethora of authorities including the cases of Marwa Wangiti Mwita & Another v. Republic [2002] T.L.R. 39 and Abel Orua @ Matiku & Others vs Republic, Criminal Appeal No. 441 of 2020) [2024] TZCA 78, and Bonus Nchimbi v. the Republic, Criminal Appeal No. 347 of 2022 (unreported). Therefore, as demonstrated herein above PW1 did not, without delay, give the said information to the police or any other authority as required by law. Instead, he supplied the said information after seven (7) good days without justification. The conduct of PW1 of withholding such vital information which came to the faculties of his knowledge allegedly before the commission of the offence, and he became aware of the implementation of the same raised grave doubts on the reliability and credence of his testimony. 30 Moreover, the plan that PW1 was allegedly aware of was that of breaking into Matiko's shop and stealing therefrom. However, there is no evidence on record proving that the shop of Matiko was broken into and money stolen therefrom. The said Matiko Rimo/Lyimo was not called to testify in this Court in order to prove that the plan allegedly revealed late by PW1 was implemented in order to add credence to PWl's testimony. It is a view of this Court that since the prosecution's case against the accused is based on the information they received from PW1 regarding the alleged evil plan to break and steal from the Matiko's shop, which was allegedly broken into and money stolen therefrom, and not the depot of PW6, Neema Emmanuel. The testimony of the owner of Matiko's shop (Matiko Lyimo/Rimo) was also key in corroborating the already shaky and unreliable testimony of PW1. Under the circumstances this court is entitled to draw adverse inference against the prosecution's case and in particular for failure to call Matiko Lyimo/Rimo whose shop breaking and stealing from was the motive behind killing the deceased. See the cases of Simon Edson @ Makundi vs Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020) and Aziz Abdallah v. R [1991] T.L.R 71. Moreover, in the case of Allan Duller vs Republic (Criminal Appeal 367 of 2019} [2021] TZCA 689 (23 November 2021) the Court of Appeal held that: ' The principle of adverse inference finds its basis on an assumption that the evidence which could be and is not, produced would, if produced, be unfavourable to the person who withholds it 31 Moreover, the evidence which purports to support the prosecution's case if considered as a whole has contradictions and inconsistencies, as follows: i. PW1 testified that it was the first accused, Ndera Wilbroad Mwita, who called him and that he was the one who planned the commission of the crime by involving other conspirators. It is also on record that PW1 testified that a few days after the deceased was killed and Matiko Shop was broken into, the 1st accused followed him and informed him that he was responsible for the commission of the offence and that he should keep the secret and was thus given TZS 150,000/=. However, the caution statement of the 2nd accused, Osolo Balibuta Hamis, admitted as exhibit P5, indicates that it was the 2nd accused who was responsible for masterminding the commission of the offence and not the first accused as alleged or at all. ii. Second, the 1st accused who allegedly committed the offence and the mastermind of the whole plan, according to the testimony of PW1, PW4, and PW5, was not mentioned at all in the caution statement of the 2nd accused to have participated in any manner whatsoever in the commission of the crime. iii. The testimonies of PW1, PW4, and PW5 indicated that the accused planned and executed a plan to break into and steal from Matiko Lyimo/Rimo's shop. However, the depot whose door was opened was the rice milling plant belonging to PW6 and her 32 husband Julius Magwi. No evidence of breaking into and stealing from Matiko Lyimo/Rimo's shop was adduced. iv. Likewise, exhibit P4, a sketch map of the crime scene, indicates that item 'I' of the key of the map is the depot of Matiko Lyimo. The map indicates that the said depot of Matiko Lyimo is on the other side of the road from where the offence was committed and it is forty-five (45) walking steps from the crime scene. The said map does not indicate that the said shop was broken into as alleged by the prosecution witnesses. v. Moreover, if the accused planned to break into shop T on the map which was not broken into or stolen from, why would they go and kill the accused who was at point 'A' close to the rice milling plant (point 'D' on the map) which was on the other side of the road? vi. Also, PW4 who drew the map and PW6 who guided PW4 in drawing the map did not witness the murder incident but the map indicates that the place where the deceased was killed was point 'A' and the body was at point 'B'. How did PW4 and PW6 know the point where the deceased was killed without the aid of an eye witness taking into account the fact that the CCTV camera footage was not tendered in Court as evidence? vii. PW4 also testified that they went to the crime scene on 03/04/2023 in the early morning shortly after 06.00 a.m. and after the body of the deceased was taken to the hospital he filled a certificate of seizure and drew a sketch map of the crime scene 33 in the morning. However, a certificate of seizure which was admitted as exhibit P3 indicates that it was prepared at 16:30 Hrs., and a sketch map indicates that it was prepared at 17.00 Hrs., contrary to the testimonies of PW4 and PW6 which were to the effect that seizure of the stone was done in the morning and exhibits P3 and P4 were prepared in the morning. Given the foregoing regarding the inconsistencies in the evidence of the prosecution, this Court finds that the inconsistencies are material and go to the root of the case in respect of which conviction cannot be grounded. See the cases of Mohamed Said Matula v. Republic [1995] T.L.R. 3, Matera Simango @ Masana vs Republic (Criminal Appeal 517 of 2019) [2021] TZCA 621 (29 October 2021), Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78, Mapambano Michael @ Mayanga vs Republic (Criminal Appeal No. 268 of 2015) [2016] TZCA 310 (25 April 2016) Munziru Amri Mujibu and Dionizi 14 Rwehabura Kyakaylo vs. R., Criminal Appeal No. 151 of 2012 (unreported). Another piece of evidence that is key in determining who killed Juma Mwirinyi Chacha is the testimony of PW4 and PW5 who also testified that the 2nd accused confessed to being part of the plan to break into and steal from the Matiko Lyimo's shop/depot and that he was the one who attacked and hit the deceased by using a stone and who eventually died. PW4 testified that the 2nd accused confessed to him orally that he killed the deceased, and PW5 testified that he was the one who wrote the caution statement of the 2nd accused in which he confessed to killing the deceased. 34 At this juncture, it is important to point out that in the alleged caution statement of the 2nd accused, the names of Patrick Wilbroad Mwita@ Toto, Joseph Mahanga, Sila, Kirikuba, Juli, and Justine are mentioned as conspirators in the commission of the crime. This means that among the accused persons charged in this case, only the 3rd accused (Joseph Mahanga Mwita) and the 4th accused (Patrick Wilbroad Mwita@ Toto) were mentioned by the 2nd accused. This also means that the 1st, 5th, 6th, 7th' and 8th accused were not mentioned by the 2nd accused. The question is how did the Republic charge them for a serious offence like murder in the absence of prima facie evidence to support the charges against them? Moreover, the caution statement of the first accused suffers from a lack of important details and contradictions making it unworthy as a standalone piece of evidence to ground the conviction of the accused. The caution statement indicates that: i. The 2nd accused and his conspirators planned to break into the beer depot of Matiko Lyimo at 1.00 a.m., but they allegedly entered the rice milling plant of Matiko. ii. Then after killing the deceased 1st accused went to the rice milling plant belonging to Matiko and broke the CCTV camera close to the place they were planning to break into. However, the evidence on record shows that the rice milling plant belongs to Julius Magwi (see exhibit P4 a sketch map of the crime scene and testimony of PW4 and PW6) and not Matiko. iii. Then 3rd and 4th accused by using the master key opened the padlocks of (unknown) and entered (the unknown). The word 35 unknown is used to show that the caution statement is silent on what was opened and at which shop/depot they entered. In light of the above, together with the inconsistencies and contradictions highlighted earlier, this court finds it unsafe to convict the 1st accused solely based on a caution statement that suffers from the uncertainty of particulars and in the absence of corroborating evidence. The confession of the 2nd accused also has another turn in law, it is a confession of the co-accused that also cannot be relied upon to convict the accused unless it is corroborated by other evidence. Section 33 of the Evidence Act, Cap. 06. R.E. 2019 provides that: 33. -(1) When two or more persons are being triedjointly for the same offence or for different offences arising out of the same transaction, and a confession of the offence or offences charged made by one of those persons affecting himself and some other of those persons is proved, the court may take that confession into consideration against that other person. (2) Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co­ accused. Elaborating the above position is the Court of Appeal decision in the case of Frank Richard Shayo vs Republic (Criminal Appeal No. 333 of 2020) [2024] TZCA 230 (22 March 2024) where it was held that: 36 "The above provision has been reiterated by this Court in its numerous decisions to mention but a few: Pascal Kitingwa v. Republic [1999] TLR 65, and Charles Issa @ Chile v. Republic, Criminal Appeal No. 97 of 2019 (unreported). In the latter case, we stated that: 'The import of the evidence ofa co-accused is settled that, such evidence must be treated with circumspection and thus requires corroboration" The Court in Frank Richard Shayo vs Republic (supra) went on to hold that since the Appellant's cautioned statement was not corroborated and upon which conviction was found, the Court held that the prosecution failed to prove the case to the standard set by law. Moreover, in the case of Hussein Malulu @ Elias Hussein & Others vs Republic (Criminal Appeal No. 263 of 2021) [2023] TZCA 17939 (13 December 2023) when the Court of Appeal was commenting on the provision of section 33(2) of the Evidence Act (supra) held that: " What we gather from the quoted provision is that the testimony of a co-accused, arising out of his confession to committing an offence must be given force through corroboration. This means that conviction of a co-accused without there being corroborating evidence fails the test of a properly grounded conviction. As we alluded to earlier on, a conviction based on the testimony of a co-accused, as a general rule, must be cautiously applied. Thus, in Pascal Kitigwa v. Republic [1999] T.L.R. 65, we underscored the fact 37 that it is not illegal to convict an accused person based on an uncorroborated testimony of the co-accused. However, such conviction must be preceded by a warning, by the convicting court, ofthe dangers of relying on such testimony. The Court further observed as follows: "However, as correctly observed by the trial magistrate and the learned judge, even though the law is such that a conviction based on the uncorroborated evidence ofan accomplice is not illegal, still as a matter of practice, the then Court of Appeal for Eastern Africa and this Court have persistently held that it is unsafe to uphold a conviction based on the uncorroborated evidence of a co-accused. In this case, the trial magistrate as well as the learnedjudge on the first appeal apart from warning themselves of the danger of convicting on uncorroborated evidence of the second accused (DW2), went further to look for other evidence implicating the appellant. It is common ground that corroborative evidence may well be circumstantial or may be forthcoming from the conduct or words of the accused" Given the above position of the law and as expounded by the Court of Appeal decisions, it is clear that it is unsafe to ground the conviction of the accused on an uncorroborated confession of the co-accused. In the present case, apart from the confession of the 2nd accused the other testimony which, by far, could implicate the accused with the commission of the crime and the incident in general was the testimony of PW1. However, the testimony of PW1, as already observed earlier, lacks credence and thus is unreliable and cannot be said to corroborate the 38 confession made by the 2nd accused taking into account that it also requires corroboration. Another major blow to the prosecution's case, which has been noted at late hours, is the legal defect in the caution statement of the 2nd accused. The caution statement of the 2nd accused does not have a signed certificate of the 2nd accused as required by law. Section 57(3)(a) (i) and (ii) of the Criminal Procedure Act, Cap. 20. R.E. 2022 provides that: "(3) A police officer who makes a record of an interview with a person in accordance with subsection (2) shall write, or cause to be written, at the end of the record a form of certificate in accordance with a prescribed form and shall then, unless the person is unable to read- (a) show the record to the person and ask him- (i) to read the record and make any alteration or correction to it that he wishes to make and add to it any further statement that he wishes to make; (ii) to sign the certificate set out at the end of the record The same requirement is reiterated in paragraphs 14 and 15 of the PGO 236. However, the caution statement of the 2nd accused admitted by this Court as exhibit P5 does not have the signed certificate of the 2nd accused and even that of PW4, as required by law. Under the circumstances, the caution statement of the 2nd accused, although admitted, but which should not have been admitted in the first place, is invalid and thus cannot be relied upon to convict the accused. See 39 the Court of Appeal decision in the cases of Bujiku Mzigo vs Republic (Criminal Appeal No. 512 of 2021) [2024] TZCA 446 (11 June 2024) and Tumaini Frank Abraham vs Republic (Criminal Appeal No.40 of 2020) [2023] TZCA 17467 (1 August 2023) where it was held that: "We wish to point out from the outset that, upon perusal of the record, it is plain to us that contrary to section 57(3) (a) and 4(a) of the CPA, plainly, the cautioned statement (exhibit PI) appearing at page 27 of the record ofappeal does not bear certification by the recording officer. The effect of the omission thus, could be that the said statement was not read to the appellant (accused then) to let him acknowledge its correctness or otherwise. The effects of an accused's cautioned statement which lacks certification cannot be overemphasized than what the Court did in a plethora of its previous decisions including in Zabron Joseph v. P, Criminal Appeal No. 447of2018 and Ibrahim Issa And 2 Others v. R, Criminal Appeal No. 159 of2006 (both unreported). In the absence of the said certification, it cannot therefore certainly said that the cautioned statement was of the appellant. It is expunged fromthe record as proposed by Mr. Kimweri." Also in the case of Paschal Maganga & Another vs Republic (Criminal Appeal No 268 of 2016) [2018] TZCA 511 (15 February 2018) the Court of Appeal held that: "We are also in agreement with appellant's counsel that, the cautioned statements of the appellants had a predicament of not being certified by them at the end of the record as per mandatory requirements of 40 section 57(3) (a) (ii) of the CPA. Therefore, the cautioned statements of the appellants were recorded in violation of the law. As such, the trial judge wrongly acted on those statements to convict the appellants, We thus agree with the learned counsel and accordingly expunge the cautioned statements from the record. " Under the circumstances of this case, having considered the testimony of PW1 and found that it lacks credence and is unreliable, and having ruled that the conviction of the 2nd accused and other accused could not be grounded on the confession of the 2nd accused which is invalid and uncorroborated, the testimonies of PW4 and PW5 have no legs upon which to stand and thus cannot sustain conviction of the accused persons. The testimony of PW3, the exhibit keeper, about the stone found at the crime scene (admitted as exhibit P2) allegedly used to hit the deceased and a certificate of seizure thereof (admitted as exhibit P3) also does not help in linking the accused with the commission of the crime taking into account the fact that there was no scientific report that the blood on the stone was that of a human and it matched with that of the deceased. The same applies to the testimony of PW6 who simply explained her knowledge of the deceased being her employee, and how she received information about his death and what transpired thereafter on the day of the incident. It follows that having found that, there is no credible evidence linking the accused with the offence of murder they are charged with, their guilt remains unestablished. 41 In the final analysis, and in light of the foregoing, this court finds that the Republic has failed to prove her case beyond a reasonable doubt on the information for murder against all the accused. Under the circumstances, this Court finds Ndera Wilbroad Mwita, Osolo Balibuta Hamis, Joseph Mahanga Ghati, Patrick Wilbroad Mwita @ Toto, Joseph Kiana Thomas, Boniface Chacha John @ Chacha, Moronya Mang'era Chacha @ Manuva and Hassan Marwa Makuri @ Mufath not guilty of the offence of murder levelled against them by the Republic. Therefore, this court hereby acquits Ndera Wilbroad Mwita, Osolo Balibuta Hamis, Joseph Mahanga Ghati, Patrick Wilbroad Mwita @ Toto, Joseph Kiana Thomas, Boniface Chacha John @ Chacha, Moronya Mang'era Chacha @ Manuva and Hassan Marwa Makuri @ Mufath of the offence of murder of Juma Mwirinyi Chacha. The court further sets all accused at liberty and, unless held for any other lawful cause, orders their immediate release from the detention facility where they are currently held. It is so ordered. day of December 2024. K. I. Kafanabo Judge 42 The Judgment was delivered in the presence of Ms. Dotto Banga, the learned State Attorney and in the presence of Ms. Mary Samson, the learned Advocate for the accused, and in the presence of all the accused. K. I. Kafanabo Judge 10/12/2024 43