KULULETELA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB REGISTRY ATTARIME CRIMINAL SESSION CASE NO 54 OF 2023 REPUBLIC VERSUS H. 4489 PC KULULETELA SAMWEL NYAKAI@SAMWEL JUDGMENT OF THE COURT 01/11/2024 & 18/12/2024 Kafanabo, J.: In the present case, H.4489 PC Kululetela Samwel Nyakai @Samwel (hereinafter referred to as the 'accused') is 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 31st day of March 2023 at Kubiterere Village within the Tarime District, in the Mara Region, murdered Ng'ondi Marwa Masiaga. The information was read over to the accused who pleaded not guilty to the offence of murder. It was alleged by the Republic that the offence was committed by the accused who was employed as a police officer, and stationed at Sirari Police Station. On the material date, he was assigned to patrol along the boarder of Tanzania and Kenya, together with another police officer namely J.3525 PC Charles for the purpose of assisting the TRA officers in preventing the smuggling of goods. The two police officers were equipped with firearms of i which the accused was holding an AK-47 with serial number 5000517 while his fellow officer was with an AK-47 with serial number 5001561 (hereinafter referred to as the 'firearms' collectively or 'firearm' separately). It was further alleged that the two police officers left the Sirari police station and decided to start patrolling the border before the arrival of the TRA Officials contrary to the directives given. The said police officers managed to arrest people who were smuggling cement by using motorcycles. Among the arrested persons, was the deceased who was using the motorcycle, make: Honlg with registration number MC577CZF. It was further alleged that during the arrest, arguments arose between the three (i.e. the police officers and the deceased), whereby the accused decided to detain and/or immobilize the said motorcycle while the deceased was forcing to leave with his motorcycle. As a result, the accused shot the deceased twice on the left hip and groin inflicting severe wounds on him which caused excessive bleeding. Time went by after the shooting incident, before the deceased was rushed to the Tarime Hospital by the onlookers who were at the crime scene, however, he died while getting treatment. On the same date, the 31st day of March 2023, the accused was arrested and detained. On the 1st of April 2023, the deceased's body was medically examined and the cause of death was established to be "acute cardiac arrest due to severe bleeding Hence, the accused was charged with murder. The information for murder against the accused was read over to him, and he pleaded not guilty thereto, which necessitated the matter to proceed to a full trial. At the hearing, Messrs. Lusako Mwaiseke, Aron Titus, and Obeid 2 Kasambala, learned State Attorneys, entered an appearance for the Republic while the accused was represented by Mr. David Juma Mwita, a learned Advocate. For purposes of establishing a case against the accused, the prosecution paraded seven (7) witnesses and tendered fifteen (15) exhibits. The witnesses who testified for the prosecution were PW1- Muheche Marwa Masiaga, PW2- PF. 15865 SSP Festo George Ukulule, PW3 - Dr. Cletus Deusdedit Maliganya, PW4-G.7427 CpI Abdallah, PW5- PF.24487 A/Inspector David, PW6- G.7362 D'CpI Anthon, and PW7- PF. 17206 SSP John Mayunga Sangija. Moreover, the testimonies of the said witnesses were supported by the postmortem report of the body of Ng'ondi Marwa Masiaga dated 01/04/2023 admitted as exhibit Pl, a firearm AK-47 with number 313-56 5000517 admitted as exhibit P2, an AK-47 with number 313-56 5001561 admitted as exhibit P3. One magazine of AK-47 5001561 admitted as exhibit P4, a magazine of AK-47 5000517 admitted as exhibit P5, two spent cartridge cases admitted collectively as exhibit P6, three spent cartridges marked 565000517 admitted collectively as exhibit P7, three spent cartridges cases on the envelop marked K-2, 565001561 admitted collectively as exhibit P8, fifteen live ammunitions admitted collectively as exhibit P9, seventeen live ammunitions admitted collectively as exhibit P10, a chain of custody record admitted as exhibit Pl 1, a sketch map of the crime scene dated 31/03/2023 admitted as exhibit P12, an armoury register (PF200) dated 31/03/2023 admitted as exhibit P13, a Ballistic Examination Report admitted as exhibit P14, exhibits receipt acknowledgment form with reference numbers 3 FB/BALL/LAB/77/2023 and SIR/IR/681/2023 dated 03/04/2023 admitted as exhibit P15. The prosecution's case was unlocked by Muheche Marwa Masiaga who testified as PW1. He testified that on 31/03/2023 at 08:00 a.m. he and his younger brother, Ng'ondi Marwa Masiaga, left Sirari town centre and headed to Komwamu which is in Kenya, but along the border of Kenya and Tanzania for purposes of buying cement and smuggle the same into Tanzania. On their way to Komwamu, whilst each of them riding on a motorcycle, they met other friends/colleagues namely Paulo, Emma, and Nyangege also heading to Komwamu to buy cement and were riding on their motorcycles. They arrived at Komwamu and loaded the cement on their motorcycles, PW1 and his brother left Komwamu first. On their way back, the people at a Kenyan check point told them that there were police officers in the route they took. PW1 testified further that there was a practice of giving the police officers at least TZS 2000 when they came across them. He met two police officers at the check point and he gave them TZS 2000/=, they allowed him to pass with his motorcycle which had bags of cement, and he headed to the route heading to Tanzania. He was ahead of his younger brother, Ng'ondi Marwa Masiaga (hereinafter referred to as Ng'ondi), who was following him from behind. However, the police officers did not allow his younger brother to pass, instead they held him. PW1 who was already ahead on the main road heading to Sirari he stopped in order to observe the situation regarding his younger brother held by the police. Then he heard the voice from the 4 accused telling Ng'ondi that he had not done the ritual/practice of giving them money, and when he had been meeting them in the recent past he did not give them money. Then the accused told Ng'ondi that without giving them TZS 300,000/= he would not leave that place. Then after hearing what the accused said, PW1 parked his motorcycle at a nearby house and went back to the point where the accused and Ng'ondi were standing so that he could offer help to his younger brother on the money that he was required to pay. Then when he was approaching the point where the police officers and Ng'ondi were, the accused held Ng'ondi's motorcycle and told him that since he had failed to pay TZS 300,000/= he would not let him go, and he would hand him over to the TRA. Then the accused pushed down the cement which Ng'ondi had carried on his motorcycle, since they were heavy, the said Ng'ondi also fell with the motorcycle. PW1 further narrated that Ng'ondi said that he had already paid the accused money. Then the accused held his firearm angrily and loaded the same, took a shooting stance ready to shoot. Another police officer who was there was surprised and questioned the accused's action. Then when Ng'ondi was trying to lift himself and the motorcycle, from the ground, the accused told him to leave the motorcycle down. Then Ng'ondi left the motorcycle down and stepped forward, and he told the accused that he usually gave him money. Then the accused stepped back, aimed the firearm at Ng'ondi, and fired twice from the firearm he was holding, the bullets hit Ng'ondi near the private parts, and Ng'ondi fell. PW1 further testified that because the one who was shot was his younger brother he went for him because he was struggling on the ground 5 after being shot. Then when PW1 was holding Ng'ondi the accused told PW1 that he should not dare touch Ng'ondi or go near him. At the time the accused had aimed the firearm towards PW1, and given the fear because the accused had already shot Ng'ondi, PW1 was worried that he could shoot him too, as all the time the accused was on standby with the firearm in a shooting stance, and at that time the other police officer also was standby because the accused had shot Ng'ondi. Then PW1 followed the accused requesting him to allow them (PW1 and other motorcyclists who had arrived at the check point) to take Ng'ondi to hospital because he was excessively bleeding. The accused declined and said that they should wait for the defender which was on its way to the crime scene. Other people who were there advised him to wait as the accused could shoot him as well given what he had done to Ng'ondi. The defender was not surfacing, PW1 followed the accused for the second time pleading with him to allow them to take Ng'ondi to the hospital as his condition was getting worse. Again, the accused refused and told PW1 that if he would go near Ng'ondi PW1 would suffer the fate as that of his younger brother. PW1 asked other onlookers, colleagues, and neighbours who had gathered, for help because Ng'ondi would die there. The other bystanders told PW1 that he should take him on the motorcycle. Then after the other spectators had said that, Paulo and Emma took Ng'ondi on the motorcycle whilst he was unconscious. Then they started the journey to Tarime Town Hospital. However, before going to the hospital they headed to the RPC's office, upon reaching the RPC's office they found the RCO and other police officers. They briefly 6 explained to the police officers what happened, and the deceased was taken into a car which was there at the RPC's office, and was rushed to the hospital for treatment. When PW1 arrived at the hospital Ng'ondi had already been hospitalized. Shortly the doctors who were treating Ng'ondi told him that his younger brother had passed on. PW1 further testified that he knew the accused as a police officer when he was at the Kubiterere police station. PW1 identified the accused sitting at the dock by pointing at him at close range when the witness moved near the dock where the accused was seated. The further testimony of PW1 was that when he heard the accused demanding TZS 300,000/= from Ng'ondi, he was very close to the accused the distance could be estimated to be five walking steps, and when the accused shot Ng'ondi, the accused was three walking steps away from where PW1 was standing. Moreover, from the moment his younger brother was shot until he was taken to hospital, it was forty (40) minutes. In cross-examination, PW1 testified that he knew the accused when he was working at Kubiterere police station, and on 31/03/2023 when the incident occurred PW1 had already known the accused for some time. He also testified that in his statement he wrote at the police the name of the police officer who committed the offence was mentioned. He further testified that Ng'ondi Thomas Rwambo is the same person as Ng'ondi Marwa Masiaga. He heard two bullets fired by the accused and when Ng'ondi was shot he was on his feet standing. When Ng'ondi was 7 stopped by the police officers there were no bystanders in the area, the neighbours came after the shots were fired. PW2 was PF. 15865 SSP Festo George Ukulule who was the OCD of Sirari Police District at the time when Ng'ondi was shot. He testified that on 31/03/2023 at 08.00 a.m. he was at his office in Sirari, the accused called him by mobile phone and told him that, when he was on patrol with his colleague namely J.3525 PC Charles, at Nyasisine Hamlet, Kubiterere Village, five motorcycle riders emerged with each one carrying five bags of cement. Then one of the riders dropped the five bags of cement and was trying to rob J.3525 PC Charles with a firearm. The accused said that he fired bullets on the said person on the right hip. Moreover, the militia who identified himself as Makene called PW2 and told him that there were police officers who had been attacked at Nyasisine. Then, through the window of his office, he saw the accused and J.3525 PC Charles on a motor cycle each one with his gun and a hoe, and went to PW2's office directly. PW2 told them to unload the live ammunitions from the magazine of the firearm. The accused unloaded eighteen (18) live ammunitions from the twenty (20) live ammunitions he was given, two live ammunitions were missing. On his part J.3525 PC Charles unloaded all twenty (20) bullets from his magazine which he was given earlier that day. PW2 ordered them to hand over the firearms and live ammunitions to CpI. Abdallah who was the armoury keeper and exhibit keeper. 8 The firearms that the accused and his colleague had were that, the accused had AK-47 with serial number 5000517 and J.3525 PC Charles had AK-47 with serial number 5001561. Then PW2 ordered that the accused and J.3525 PC Charles should write their statement and that they had to be remanded. Then PW2 called a police officer for the Mwema Ward where the incident happened, A/Inspector David, and ordered him to go to the crime scene to preserve the crime scene. A/Inspector David informed him that he managed to collect the spent cartridge cases that were at the crime scene even though there were a lot of people. PW2 also headed to the crime scene, upon arrival he found blood that trickled onto, and cement that poured on the ground. PW2 also testified that when he was at the crime scene he was told that Militia Makene was beaten by the angry mob and was taken to Komwamu police station in Kenya. A/Inspector David went to take the said militia from Kenya and took him to Sirari Health Centre. Thereafter, PW2 revisited the work plan of that day on how the accused and J.3525 PC Charles left the office. He noted that they were required to accompany TRA officers and on that day they were given instructions by ASP Feruzi acting OCS, that they should take firearms and they should weight for TRA officers to come. But they did not do that, they left and went to Nyasisine without the TRA officers. The OCS is the one who assigns tasks to police officers and on that day the acting OCS was ASP Feruzi. In cross-examination, PW2 testified that the accused and J.3525 PC Charles were in possession of the firearms according to the rules. The militia who called PW2 did not tell him why the said police officers were attacked. 9 Also, the Militia did not tell who attacked him and why he was attacked. The police officers are given firearms in order to defend others and for self- defence. PW3 was Cletus Deusdedit Maliganya, a medical doctor working at Tarime Town hospital. He testified that on 01/04/2023 he was assigned to examine the body that was preserved at the mortuary of the hospital. The examination was done in the presence of a police officer and relatives of the deceased who identified the body as that of Ng'ondi Marwa Masiaga. Upon examination, it was noted that the body had five wounds. The 1st wound was the wound made by the mortuary attendant to treat the body by inserting preservative medicine. It was further testified that the other four wounds were found on the body of the deceased when received at the hospital. The 1st wound was on the groin of the deceased. The 2nd wound was on the lateral upper part of the right hip, the 3rd wound was on the upper part of the left hip and the fourth wound was on top of the 2nd wound on the same right hip. PW3 also testified that the 1st and the 3rd wounds were small compared to the 2nd and 4th wounds. In examination, they usually find the relationship between wounds using an equipment called probe (wire-like equipment) in order to see the connection between the wounds. Then by using a probe from the 1st wound, the probe directed them to the 2nd wound which was below the 4th wound. The 1st wound also connected with the urinary bladder which means the bladder was perforated and it went direct to the neck of the right femur, which was broken and thus connected with the 2nd wound. io The 3rd wound which began on the upper part of the left hip destroyed the left iliac artery and destroyed the left pelvic bone which was broken and the right pelvic bone was also broken and exited through the 4th wound. It was further testified that the said wounds were caused by two objects propelling in massive force which passed through the 1st and 2nd wounds and the same applies to the 3rd and 4th wounds. And since the powerful and forceful object which caused the wounds passed through blood veins and arteries then it caused massive loss of blood. The wounds might have been caused by a blunt object that came from a source that propelled the same with enormous force. PW3 further testified that usually the blunt object at the point of entry makes a minor injury and the exit wound is usually huge, contrary to the sharp object which causes wounds of the same size. The first and third wounds were on the left and were small and the 2nd and 4th wounds were huge meaning that the blunt object which caused the wounds entered on the left and exited on the right. Given the nature of the wounds, the object which caused the wounds was not one, there were two different objects which could be similar or different and have caused the wounds at different times. After examination of the body of Ng'ondi Marwa Masiaga, PW3 prepared a report and handed over the body to the mortuary attendant in the presence of relatives for other necessary steps. The postmortem report of the body of Ng'ondi Marwa Masiaga dated 01/04/2023 was admitted as li exhibit Pl. According to PW3, the death of the deceased was caused by acute cardiac arrest, caused by severe bleeding. In cross-examination, PW3 testified that they conducted invasive surgery by using a probe as there were already open spaces on the body which allowed them to examine the body without further opening it. PW4 was G.7427 CpI. Abdallah testified that he works at the Sirari Police Station as the armoury keeper, exhibits keeper, assistant major of the barrack, and in-charge of the CRO. He also testified that on 31/03/2023 at 06.00 a.m. he was in the armoury receiving firearms from exiting police officers and handing over firearms to police officers who were commencing duty. After some time two police officers namely H.4489 P.C. Kululetela and J.3525 PC Charles, arrived to take firearms in order to commence their shift which was the patrol with TRA officers. The acting OCS by the name ASP Feruzi authorized him to give them firearms and that they were supposed to wait for the TRA officers. Then he handed over firearms to the two police officers and registered the firearms they took in PF200 (Armoury Register), in which he wrote the time, date, the kind of firearms they took, number of the firearms, name of the police officers who took the firearm and were supposed to sign the register after taking the firearm. The accused was given a firearm with serial number 5000517 with twenty (20) live ammunitions, it was an AK-47 and he signed the register acknowledging taking the firearm. The second firearm was taken by J.3525 PC Charles, it was a firearm with number 5001561 also loaded with twenty (20) live ammunitions, it was also an AK-47 he also signed the armoury register, and thereafter they left the armoury. 12 PW4 further testified that on the same day, that is on 31/03/2023 at 09:00 am he was called by the OCD, SSP Ukulule at his office who instructed him to take the firearms from the accused and J.3525 PC Charles which were taken from the armoury earlier that morning. Upon counting the live ammunitions, the firearm of the accused with serial number 5000517 had remained with eighteen (18) live ammunitions, and two were missing. The firearm of J.3525 PC Charles with serial number 5001561 had its twenty (20) live ammunitions intact. Then the OCD instructed him to keep them in the exhibit room. PW1 adhered to the instructions and labelled them with the case number which was SIR/IR/681/2023 and entered the same in the exhibits register PF16 and kept them. The live ammunitions from the magazines of the firearms were kept in envelopes separately. It was also testified by PW4 that in the afternoon of 31/03/2023, Assistant Inspector David handed over to him two spent cartridge cases, which he received and labelled SIR/IR/681/2023 and kept them. During the night of 31/03/2023, ASP Richard Minja from the RCO's office went to PW4 as the exhibits keeper. He demanded the exhibits that PW4 received and kept earlier that day. PW4 gave him the two firearms, two spent cartridge cases, two magazines, and 38 live ammunitions. The handover of the exhibits was done by using a chain of custody document. The said ASP Minja collected the exhibits in order to take them to the Ballistic Laboratory in Dar es Salaam. On the morning of 08/04/2023, A/Inspector David handed over to PW4 two firearms with a label from the Ballistic Laboratory Dar es Salaam, two 13 magazines, eight spent cartridge cases, and live ammunitions put separately. One bag had 17 live ammunitions and the other had 15 live ammunitions. PW4 tendered eleven exhibits which were admitted by the Court. A firearm AK-47 with serial number 313-56 5000517 was admitted as exhibit P2, AK-47 with number 313-56 5001561 was admitted as exhibit P3. One magazine of AK-47 5001561 was admitted as exhibit P4, a magazine of AK- 47 5000517 was admitted as exhibit P5, two spent cartridges cases were admitted collectively as exhibit P6, three spent cartridges marked K-I, 565000517 were admitted collectively as exhibit P7, three spent cartridges cases in the envelop marked K-2, 565001561 were admitted collectively as exhibit P8, fifteen(15) live ammunitions admitted collectively as exhibit P9, seventeen (17) live ammunitions were admitted collectively as exhibit PlO'the chain of custody record admitted as exhibit Pll. In cross-examination, PW4 testified that the procedure which he used to handover the firearm to the accused was formal. After handing over the firearms to the accused and the other police officer, he did not know where they went and he did not know if they were taken by the TRA officers or otherwise. PF 24487 Assistant Inspector David testified as PW5. He testified that on the date of the incident, 31/03/2023, he was a designated Police Officer for the Mwema Ward. He testified that on 31/03/2023 he was at Mwema Ward, in Nyansisine Village when he was called by one person called Makene who said that they were being attacked by a group of bodaboda riders, it was at around 9:30 am. Upon arrival, he found many bodaboda riders and was told that there was an incident of people firing bullets. Then he called 14 the then OCD of Sirari by the name of SSP Ukulule who instructed him to collect the spent cartridge cases and should secure the crime scene. He collected two spent cartridge cases by force as there were many people, then he headed to the OCD's office and reported to him what he saw at the crime scene. He then submitted the two spent cartridge cases to the exhibit keeper who was CpI. Abdallah, the hand over was done through a chain of custody record, at around 12.00 Hrs. on that day. PW5 testified that on the same date, that is 31/03/2023 at 6.00 p.m. he was given the exhibits by ASP Minja which were two firearms of AK-47, one number 5000517 and the other number 5001561, two spent cartridge cases, two magazines of the said two firearms of AK-47 and a total of thirty­ eight (38) live ammunitions marked SIR/IR/681/2023. The ammunitions were in two groups, the 1st group had 20 live ammunitions and the other group had 18 live ammunitions. He was instructed to take all the exhibits to the Ballistic Laboratory in Dar es Salaam. The handover of the said exhibits was also by a chain of custody. On 03/04/2024 he arrived at the Ballistic Laboratory in Dar es Salaam and handed over the exhibits and a letter to ASP Mayunga. Then examination was conducted and in a few days, ASP Mayunga handed over back the exhibits to him after he had completed the examination. The exhibits handed over to PW5 include two firearms of AK-47, one with the number 5000517 and the other 5001561, two magazines of the said two firearms of AK 47, the Ballistic Laboratory report, and a total of thirty-two (32) live ammunitions. This is because from the batch of twenty (20) live ammunitions he handed over to ASP Mayunga three were spent for testing and 15 examination and thus seventeen remained, and out of 18 live ammunitions he handed over to ASP Mayunga three were spent for testing and examination and thus fifteen (15) remained. ASP Mayunga also gave him six spent cartridge cases. It was further testified by PW5 that all the above exhibits were handed over to CpI. Abdallah who was the exhibits keeper on 08/04/2023 through the chain of custody document. PW5 identified all the exhibits he handed over to CpI. Abdallah (PW4). In cross-examination, PW5 testified that Makene called and informed him that a group of bodaboda riders were attacking him and the accused. After arrival at the crime scene, he found not less than ten Bodaboda riders but there was no police officer and Makene was not at the crime scene. PW6 was G.7362 D'CpI Anthon who testified that on 31/03/2023 in the morning, he was at work at the Sirari Police Station. Then the OCCID SP Aron Mihayo, instructed him to get prepared to go to the crime scene because there was a murder incident at the Kubiterere Village. Then PW6, the OCCID Aron Mihayo, the OCD Ukulule, the RPC Sarakikya, and RCO Asifiwe Ulime went to the crime scene. Then upon arrival at the crime scene, they found the crime scene already secured by A/Inspector David who went there early. There were also people at the crime scene and he drew a sketch map of the crime scene whilst led by Valence Chacha. They left the crime scene and went to the Sirari Police station and later to the Tarime Police station where police officers with number H.4489 PC Kululetela and J.3525 PC 16 Charles had been remanded for the allegations of murder of Ng'ondi Marwa Masiaga. Statements of the said police officers were taken and PW6 returned to the Sirari Police Station. On the evening of that day, the OCCID Aron Mihayo handed over to PW6 the case file with case number SIR/IR/681/2023 to continue with the investigation of the matter. PW6 further testified that on 01/04/2023 in the afternoon, PW6, Inspector Salum, and CpI. Cyril together with the relatives of the deceased went to the Tarime District Hospital to oversee the examination of the body of Ng'ondi Marwa Masiaga which was in the hospital's mortuary. Examination was conducted and after completion of the examination of the body of the deceased, the postmortem report of the body of Ng'ondi Marwa Masiaga was prepared and handed over to PW6. Then PW6 continued with the investigation of the case gathering various other exhibits. PW6 tendered the sketch map of the crime scene dated 31/03/2023 which was admitted as exhibit P12. PW6 also clarified the names of Ng'ondi Marwa Masiaga and Ng'ondi Rwambo Mathias, both of these were the names of the deceased. Also when he was guided by Valence Chacha in drawing the map he mentioned the deceased by the name of Ng'ondi Rwambo Mathias. PW6 also tendered for admission the armoury register, PF200, dated 31/03/2023 which was admitted as exhibit P13. The further testimony of the PW6 was that in his investigation discovered that on 31/03/2023 the accused and J.3525 PC Charles when on duty were attacked by a group of people and in saving themselves, the accused fired shots to defend themselves and 17 in that course the said Ng'ondi Marwa Masiaga was wounded by gunshots and eventually his death. In cross-examination, PW6 testified that the accused and his colleague PC Charles were handed over firearms according to relevant regulations. PW7 was PF17206 SSP John Mayunga Sangija a ballistic expert at the then Police Headquarters in Dar es Salaam, working in the Department of Ballistic and Explosives Examination Department. He testified that he became the SSP on 1st June 2024, but examined the exhibits in respect of the present case when he had the rank of SP. He testified that on 03/04/2023 an Assistant Inspector of police by the name of David from the office of the OCCID Tarime-Rorya went to his office with a letter together with the exhibits which he received on that day. The exhibits were firearms, make: AK-47, caliber 7.62mm, according to the letter the firearm had numbers 5000517. After he had received the same in the laboratory he marked it as K-l, and the magazine of the said firearm was received in the laboratory and marked it as K-2. He also received 18 live ammunitions of the said firearm, caliber 7.62 mm, which were registered in the Laboratory as K-3-K-20. He also received two used bullet shells of 7.62 mm caliber, obtained from the crime scene, and were registered as Q-l and Q-2. PW7 also testified that he received another firearm make AK-47, caliber 7.62mm, with serial number 5001561, and he registered it in the laboratory as K-21. The magazine of the said firearm was also received and 18 registered in the laboratory as K-22. PW7 also received twenty (20) live ammunitions, caliber 7.62 mm, registered in the Laboratory as K-23-K-42. It was further testified that after receiving all the exhibits in the Ballistic Laboratory they were registered and given Lab No. FB/BALL/LAB/77/2023- SIR/IR/681/2023. Moreover, the letter he received from the OCCID Tarime- Rorya wanted him to examine and know the caliber of the exhibits K-l and K-21. Also, he was required to find out if exhibits K-l and K-21 were working properly, and was also required to examine and find out whether exhibits Q- 1 and Q-2 were detonated from either K-l and/or K-21. Then the handover procedure of the exhibits was followed and adhered to, and the official examination of all the exhibits that he mentioned before the court was done. He began with exhibit K-l, by visual examination which he noted that it was a firearm, make: AK-47, caliber 7.62mm, with number serial 5000517. The detailed examination revealed that the firearm was supposed to read 565000517 it has been registered with number TZPL 583, and that by using a dry test it was working properly. Then three live ammunitions from K-3-K-20 were detonated by using exhibit K-l, where all three live ammunitions were detonated successfully from K-l. After successfully detonating them, it was proved that exhibits K-l and K-3-K-20 were working properly. Then the three bullet shells produced were marked T-l, T-2, and T-3. It was further testified that the three bullet shells marked T-l, T-2, and T-3 were examined by using a microscope against exhibits Q-l and Q-2 19 which were allegedly obtained from the crime scene. In examining the used bullet shells the experts consider the following features: 1. The first is the pin impression 2. Second, is the extractor mark 3. The third one is the Ejector Mark 4. The fourth one is breech face/mark PW7 further testified that the said features are examined on the head stamp of the used bullet case/shell. After examining those features in T-l to T-3 and making the comparison with exhibits QI and Q2 it was learned and concluded that all those features on both exhibits were exactly the same, and thus the two bullet shells found at the crime scene were detonated from AK-47, caliber 7.62mm, with number serial 5000517. After completion of the examination of the relevant exhibits, PW7 prepared a Ballistic Examination Report on exhibits of SIR/IR/681/2023 which was admitted as exhibit P14. A witness also identified exhibits P2-P11 when shown to him. PW7 also tendered the exhibits receipt acknowledgment form with reference numbers FB/BALL/LAB/77/2023 and SIR/IR/681/2023 dated 03/04/2023 which was admitted as exhibit P15. PW7 also testified that in the examination of used bullet shells they are guided by Edmund Locard's principle that every contact leaves a trace in the sense that there is an exchange of information in every contact. Then there is the principle of individuality or unique characteristics of the firearms. In determining the uniqueness of every firearm they use a Comparison Microscope. 20 As regards identification of the firearm he testified that as regards serial numbers of the firearms, that is 565001561 or 5001561, and 565000517 or 5000517. There is no difference in the sense that, for instance, K-l is AK-47, the founder under licensed to a Chinese manufacturer who started with the digits 56, so 56 is the type of AK-47 made in china, the number that follows after 56 is the serial numbers of the firearm. The number 313 which is circled, is an industrial identification number and thus it is not part of their investigation. Therefore, they identified the firearms from digits 56 onwards and not the industrial number. In the daily routines of the use of the firearm, they do not consider the type that is 56, but in examination and investigation, they also consider 56 because it shows the originality of the firearm. In the cross-examination, PW7 testified that the trigger is outside the firearm and it is pushed by force by the person who uses a firearm. The proof of who used a firearm may be proved by other forensic expertise. After the testimony of PW7, the Republic closed their case and the Court found the accused with a case to answer. Therefore, the accused was invited to enter his defence in terms of sections 293 and 294 of the Criminal Procedure Act, Cap. 20 R.E. 2022. The accused, through his advocate, addressed the court that he would call four witnesses, including the accused himself and three others, and would tender two exhibits. The defence case was opened by Anaeli Hosea Temu, a Clinical Officer who testified as DW1. He testified that he is working at the Tarime Township Hospital. On 31/03/2023 he was at the Tarime Township Hospital attending outpatients, then at around 12.00 Hrs. Two patients were taken to the 21 hospital by police officers, they were wounded. He attended one patient by the name of Makene James. He was in severe pain and wounded on various parts of his body including the right eye, back of the neck, chest, and waist. The wounds were bleeding and other parts were swollen this means that he was wounded by a blunt object. Then he treated the patient and gave him medication, recorded his history of what happened. Then he filled PF3 which was given to him by the police officer who accompanied the patient. Then after the form was filled he handed it over to the police officer who accompanied the patient, and he discharged the patient and advised him to report for follow-up after three days for dressing. The Police Form No. 3 (PF3) dated 31/03/2023 bearing the name of Makene James was admitted as exhibit 'DI'. In cross-examination, DW1 testified that he did not remember the name of the police officer who went with the patient. Item 6 of the PF3 indicates that the guardian for a person with mental disability or a minor. A patient in this case was semiconscious and thus was brought by a police officer. He could explain himself with difficulties. He took his history which indicated that he was attacked by a group of people. DW2 was Masiaga Joseph Chacha, a clinical officer at Tarime District Hospital. He testified that on 31/03/2023 he was at work at Tarime District Hospital and at 12.00 one patient by the name of Kululetela was brought to the hospital by a police officer. After clinically examining the patient DW2 noted that the patient had swollen wounds on the head, left shoulder, and back. Then since he was in pain he injected him with antipain medication 22 and prescribed antibiotics for him. The patient had no open wound injury and was treated as an outpatient. The wounds were caused by a blunt object, the patient said that he was attacked. A police officer who brought the patient gave DW2 a PF3 to fill, he filled the form according to the injuries the patient had suffered. Then he handed over the PF3 to the police officer who escorted the patient. DW2 also identified the accused at the dock as a patient he attended on that day. Moreover, the Police Form No. 3 (PF3) dated 31/03/2023 bearing the name of H.4489 PC Kululetela was admitted as exhibit 'D2'. In cross-examination, DW2 stated that before the patient is treated a card for treatment is opened and not the file. What is written in the PF3 is the card number, and it was according to the practice of the hospital. He further testified that item six (6) of the PF3 requires the name of the patient or relative of the patient who is a minor or has a mental case. The patient whom he attended had no mental case problem, and he did not write the name of the police officer who brought the patient to the hospital. The accused, H.4489 PC Kululetela, testified as DW3. He testified that on 31.03.2023 at around 7.00 a.m. He reported at the Sirari Police Station for duty because the roster for duties showed that J.3525 PC Charles and himself were supposed to be on duty in the anti-smuggling patrol with TRA officers. Then his fellow police officer, J.3525 PC Charles, arrived, and since the accused was in-charge of their shift he ordered him to go to the major of the barracks/quarters who was CpI. Abdallah and inform him that they were ready for the shift. After the major was satisfied that they were apt for the task, he told them to go and take firearms for the patrol. 23 The accused, DW3, further testified that he took the firearm first with serial number 5000517, and retreated to the CRO (Charge Room Office) where he saw the TRA car entering the Sirari Police Station. Then DW3 and J.3525 PC Charles went to the CRO in-charge who registered them for the shift of patrolling various parts of the border of Tanzania and Kenya as it was the practice in that shift. It was further testified that they boarded the car which was there at the police station with four TRA officers which means that they were six in total. The in-charge of the said Patrol were the TRA officers, who told them that on that day they would start and Nyasisine Hamlet, Kubiterere Village in Mwema Ward. Then they went to the office of the Village Executive Officer (VEO) of Kubiterere Village, it was around 08.00 am, but they did not find the VEO. They found one person who identified himself as Makene and he was a militia, they explained to him that they went there for the patrol and since it was along the border they wanted to have a host. Makene was advised to join them in the Patrol at Nyasisine Ward. After the consultation which he made via the phone, he agreed and he boarded the car, and they headed to Nyasisine Hamlet. DW3 narrated further that when they arrived at the Nyasisine Hamlet, the car was parked in a pathway off the road, near by one home/house. The TRA car was parked in a reverse, then DW3, J.3525 PC Charles and Makene disembarked. The militia remained standing in front of the car, but DW3 and J.3525 PC Charles, stepped further ahead to the road which comes from 24 Komwamu Kenya to Tanzania. They stepped ahead because they were the ones with the mandate to stop any one on the road. At that time the TRA officers remained in the car. The people they were stopping were coming from Kenya to Tanzania, be it motorcyclists or other motor vehicles because they could be carrying smuggled goods. Then when at that adhoc checkpoint, along the road from Kenya to Tanzania, DW3 ordered J.3525 PC Charles to stand by the road, and secure visibility with a view to stopping the motorcycles and other motor vehicles from Kenya to Tanzania. It was further testified that shortly thereafter, they stopped a first batch of motorcyclists and after satisfying the TRA officers that they complied, they were released. Then five minutes passed, then another batch of at least fifteen motorcycles/bodaboda was coming from Kenya. DW3 ordered J.3525 PC Charles to stop the motorcycles as he did earlier. PC Charles, raised his hand to stop them, some of them dashed/pulled over aside the road, and parked and others stopped in the middle of the road. Those who parked the motorcycles on the road side disembarked and went where J.3525 PC Charles was standing. It was testified that they surrounded him and grabbed him/held him from behind whilst his firearm was in the chest. His firearm was an AK-47, and he called for help citing that his weapon was in danger! DW3 ordered him to detach the magazine, he detached the magazine, and DW3 headed to the point where J. 3525 PC Charles was surrounded, which was nine walking steps away from him. 25 DW3 testified further that he then loaded his firearm as a first step of warning the attackers to let go of J. 3525 PC Charles. The loading of a firearm was necessary in any rescue situation where a police officer or any person is under attack. Then he stepped forward heading to the place where PC Charles was, after stepping onto the road he was assaulted by a heavy object on the head and on the left shoulder, and he fell with his firearm on the chest, he was also attacked when he was on the ground and the assailants held him from behind. DW3 also testified that he saw the firearm which was with PC Charles had been taken from him, and a civilian was hitting the same on the stone. Then the firearm's butt broke before his eyes. At the same time, the people who were holding DW3 were struggling with him to take control of the firearm. DW3 was holding the muzzle/barrel of the firearm pressing it down, but he was hit by a heavy object on the back. Then another assailant joined in pulling the firearm that DW3 was holding, they were uttering words in the Kurya language which DW3 did not understand. Thereafter, he heard bangs or muzzle blasts twice from the firearm he was holding, it was a difference of one second between the two hits of the firearm. Then the attackers pushed him down, he fell, and they let him go citing that a person had been injured. Then DW3 stood up quickly from the ground, then the firearm which was being held by another civilian was thrown down after the bang of the bullets, then the assailants stepped aside, then he told J. 3525 PC Charles, who had no firearm in his hands, to take his firearm, attach the magazine and put the same in a standby position for their protection. 26 The officers of TRA were there, but they could not offer assistance because they had no firearms, and they were depending on DW3 and J. 3525 PC Charles. DW3 further testified that, when he looked aside, he saw that the bullets fired from his firearm had hit the leg of the deceased who was there but not among the persons who were struggling to dispossess the firearm from him or the other police officer, and he was calling for help in the Kurya language. DW3 testified that he did not know who amongst the persons who were wrangling with him pulled the trigger, he just saw the deceased hit, and since there was still chaos at the crime scene he had no means of helping the person who was hit, he was just sorry for the wounded. Then DW3 and his colleague called the TRA officers who switched on the car, passed the accused and his colleague, and went ahead to stop at the main road which was coming from Sirari. DW3 and J. 3525 PC Charles, went for the car and they left without collecting the used bullet shells as they feared for their lives because the number of people at the crime scene kept on growing and they were screaming. He was sorry for the wounded, but could not assist him, they left by boarding the TRA car and headed to Sirari Police Station. Before reaching Sirari Police Station they met the OCD of Sirari Police District heading to the crime scene. The further testimony of DW3 was that upon reaching the police station they found the acting OCD and explained to him what transpired. Then the OCD came back with Makene when they were still there. Since DW3 was injured on the head, the shoulder, and the back, and Makene was also complaining that he had been injured, then Simon Mauki, a police 27 officer, was ordered by the OCD that he should take them to the hospital for treatment. They left with Simon Mauki and headed to Tarime Hospital where DW3 was treated, it was around 12.00 Hrs. DW3 also identified exhibit D2, a PF3 bearing his name. In cross-examination, DW3 testified that he did not mention the names of the TRA officers who were with them that day. The TRA officers were in the car they did not see what was going on the road, and it was not true that they went to the patrol without being accompanied by the TRA officers. He further testified that he was hit with a heavy object when he entered the road, then during the struggle to take control of the firearm he was hit by another heavy object on the back. DW3 further testified that he did not know when DW4 was attacked. He further testified that he did not remember if PW1 was cross- examined regarding the presence of the fight. The ballistic expert was not asked about the firearm with a broken butt because he came to court to explain his examination of firearms. DW3 also testified that he denied the evidence of the prosecution especially evidence of PW1. Further, it is not true that they went to Sirari Police Station with a motorcycle. DW4 was Makene James, he testified that he lives at Nyansisine Hamlet, Kubiterere Village, Mwema Ward in the Tarime District. He is a militia with the number MG.606824. He works at the Ward Executive Office at Mwema Ward in Kubiterere Village. On 31/03/2023 he was at the ward executive office, then a TRA car with TRA officers arrived. He was alone, the TRA officers asked him to call 28 the Ward Executive Officer (WEO) as they wanted one militia, the WEO allowed him to join them since he was familiar with the surroundings. He further testified that in the car there were four TRA officers including the driver and two police officers. He recognized the police officers because it was not the first time they went to conduct the patrol. He boarded the car and they went to the road that goes to Kenya where smuggled goods were usually passed. Upon arrival, the TRA car was parked at Mkami's home. They hid the car behind the Mkami's home so that it could not be seen. Then they ordered two police officers to disembark and that the police officers in uniform should go to the road and DW4 was ordered to stand in front of the car. The first batch of motorcycles from Kenya was stopped they were inspected and found in compliance, and they were let go. Then the police officer returned to the side of the road. Then another batch of more than fifteen motorcycles came carrying cement. The same police officer stopped them. The ones who were in front slowed down and stopped, they parked their motorcycles. They spoke in the Kurya language that "this police officer's conduct is tiring and deplorable". They surrounded the police officer intending to take a firearm from him. The police officer detached the magazine quickly. Then they were holding a firearm of the said police officer, then the accused went close to see what was happening and loaded his firearm. He was going close to where the other police officer was, but he was hit by a branch of a tree and he fell. DW4 testified that he saw DW3 being hit by a branch of a tree because he went to the point where the police officers were after he had heard DW3 29 loading his firearm. After he was hit and fell, they held him and got hold of the firearm. They said in Kurya that they should take away the firearm from him. Then DW4 decided to engage in the matter, but before knowing he was also hit, he fell but picked himself up and then he heard the gunshots. The assailants argued amongst themselves that they mishandled the matter and caused the firearm to open fire. Then since DW4 was hurt, he was not seeing properly as he was assaulted on the right eye, ribs, and waist. DW4 reached his phone in the pocket and called the OCD of Sirari and told him that they had been attacked and he directed him to the place of the incident. DW3 was still down, then the assailants said someone had been injured and that they should leave. Then before they left, one of the civilians took the firearm of the other police officer and hit the same on the stone until the butt broke. Then he threw it down and they left. Then the TRA car was switched on and they passed DW4 and went to stop at the road coming from Sirari saying they should go. It was further testified that the TRA officers called the police officers who took their guns and left. DW4 was left behind because he delayed entering the car of TRA. Then A/Inspector David arrived at the crime scene, he said that everything was under police control and no one should touch anything. Then since there was only one police officer, that was David, DW4 left the crime scene and went to a Kenyan police post which was nearby for security purposes. Then after a few minutes, A/Inspector David arrived at the Kenyan Police Station and told DW4 that they had to go because the OCD and other police officers had arrived at the Crime scene. By using a motorcycle DW4 was taken by A/Inspector David to the crime scene. 30 DW4 was ordered to board the OCD's car and went to the Sirari Police Station, where he explained himself and then he was given PF3, and by using a police car he was taken to Bomani Hospital Tarime for treatment, DW4 was treated by a doctor by being given an IV injection and medication and later he was discharged. Then he was taken back by a police car to Sirari Police Station where they demanded the PF3, and he was taken home. In cross-examination, DW4 testified that where the TRA car had parked and where the police officers were standing on the road, one could see what the police officers were doing. Since the TRA officers were in the car, he was not sure if they saw what was going on the road. In the first place, he did not know what was going on with the police officers, which is why he did not inform the TRA Officers, he became aware of what was going on after he went close to the road. When he went to the road, the distance between him and DW3 was eight walking steps. DW3 did not see him when he was beaten because DW3 was beaten first. The two of them that is DW3 and DW4 were taken to the hospital using the car that was being driven by another police officer. After the testimony of DW4, the defence closed their case. That being the case, both the prosecution and the defence have closed their cases and thus the door for this court to determine the case in light of the evidence on record is now open. 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 is responsible for the murder of Ng'ondi 31 Marwa Masiaga (hereinafter referred to interchangeably as the 'deceased' or 'Ng'ondi') beyond a reasonable doubt. In answering this major issue before the court, this court is guided by the provisions of section 196 of the Penal Code, Cap. 16 R.E. 2022 which reads: '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 a fundamental principle of law that the prosecution in criminal trials has to establish and prove the allegations against the accused 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). Likewise, 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 32 prosecution and no duty is cast on the appellant to establish his innocence." It is inevitable that in order to prove the aforementioned, the answers to the following questions are vital; one, whether the said Ng'ondi Marwa Masiaga is dead, if that is answered in the affirmative, the next question would be how did he die? That is, whether his death is attributed to natural or unnatural causes, if the death was due to unnatural causes then who caused the death of Ng'ondi, 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 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 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 light of the above, it is important to first determine whether Ng'ondi is dead and whether his death was due to natural or unnatural causes. In light of the evidence on record especially the testimony of PW1, the brother of the deceased, PW3 a medical doctor who examined the body of the deceased, and PW6, the investigator of the case together with exhibit Pl, 33 the postmortem report of the body of Ng'ondi all of which were to the effect that Ng'ondi is dead. Therefore, unhesitatingly, this court answers the first question in the affirmative that Ng'ondi is dead and died on 31/03/2023. It follows that the cause of death is also important to determine. Again, testimonies of PW1, the brother of the deceased, PW3 a medical doctor who examined the body of the deceased, and PW6, the investigator of the case together with exhibit Pl indicate that the death of Ng'ondi was not a yield of a natural cause. The testimony of PW1 was to the effect that Ng'ondi was shot twice near his private parts, then he fell and bled profusely for a long time without being aided, and later, he died at the hospital. The testimony of PW3 together with exhibit Pl also showed that the body of the deceased had four wounds caused by a forceful blunt object which caused excessive bleeding that led to the cardiac arrest of the deceased and eventually his death. The testimony of PW6 also indicates that in the cause of his investigation, he discovered that Ng'ondi died because he was shot, and as a result wounds and massive bleeding caused his death. Given the above evidence, this court undoubtedly concludes that the death of Ng'ondi was triggered by an unnatural cause. The next issue to determine is who caused the death of Ng'ondi and whether the causation was a result of a lawful or unlawful act or omission. According to the testimony of PW1, he testified boldly that it was the accused who shot Ng'ondi twice near his private parts because of the misapprehension that arose between the accused and Ng'ondi. The accused was demanding TZS 300,000/= from Ng'ondi in order to let him go from the 34 checkpoint where the accused and his colleague had stopped Ng'ondi who was being blamed by the accused for ignoring them previously and for not giving him money. However, Ng'ondi was of the view that he had already given the accused money which the accused seemed to be upset or unsatisfied with. In the course of the argument, whilst PW1 was close to both the accused and Ng'ondi he witnessed the accused loading his firearm and held the same at a shooting stance or standby mode and eventually shot Ng'ondi twice. Ng'ondi fell and started to bleed profusely. The testimony of PW1 was also corroborated by the evidence of PW7, ASP Mayunga, a ballistic and explosives expert, who testified that he examined the two spent cartridge cases (used bullet shells) collected from the crime scene, where Ng'ondi was shot. In his examination, he concluded that the said used bullet shells were extracted from the live ammunitions fired from a firearm identified as AK-47 with serial number 565000517 or 5000517 admitted as exhibit P2. The said conclusion was arrived at after examination of various exhibits including the eighteen (18) live ammunitions found the magazine of the said firearm which was in possession of the accused when the deceased was shot. The testimony of PW7 was supported by a Ballistic Examination Report admitted as exhibit 14. Moreover, PW4- G7427 CpI. Abdallah, also testified how he handed over Exhibit P2, a firearm identified as AK-47 with serial number 565000517 or 5000517, to the accused together with twenty (20 bullets) as evidenced by exhibit P13, the Armoury Register (PF200) of the Sirari Police Station, 35 dated 31/03/2023 which indicated that the accused on that particular day took exhibit P2, a firearm identified as AK-47 with serial number 565000517 or 5000517, with twenty (20 live ammunitions) and the accused signed the Armoury Register acknowledging taking the firearm. Likewise, the accused who testified as DW3 never disputed that at the time of the incident on that particular day, he was in the possession of exhibit P2, a firearm identified as AK-47 with serial number 565000517 or 5000517, together with twenty (20 live ammunitions). The accused also did not dispute the fact that the bullets that hit the deceased were fired from the firearm he was holding at the crime scene. He also acknowledged the fact that he saw the deceased profusely bleeding and seeking help after being shot by the bullets fired from the accused's firearm. The evidence of PW3 also was consistent and in line with that of PW1 and DW3 in the sense that the cause of death of the deceased (massive bleeding and cardiac arrest) was triggered by the deceased being hit by two blunt objects that propelled into the body of the deceased forcefully. In light of the above, this Court finds that it is the accused who shot the deceased twice and thus caused his death as per the evidence on record. The last question to determine is whether the accused caused the death of Ng'ondi with malice aforethought. In answering this question, the testimonies of PW1, PW3, DW1, DW2, DW3, and DW4 together with exhibits Pl and D2 are very key. However, before canvassing the facts in deciding whether the accused caused the death of Ng'ondi with malice aforethought or otherwise, it is important to review the law on malice aforethought. 36 The law on malice aforethought is provided under section 200 of the Penal Code Cap. 16. R.E. 2022 which provides for circumstances under which malice aforethought may be inferred, the relevant section reads: "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, whether that person is the person killed 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 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 offence punishable with a penalty which 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 offence." Moreover, the factors to be considered in determining malice aforethought were also exemplified by the Court of Appeal in the case of Charles Bode vs Republic (Criminal Appeal No 46 of 2016) [2019] TZCA 578 (6 March 2019) where the Court of Appeal of Tanzania observed that: "The decision of the Court in the case of Enock Kipela vs Republic, Criminal Appeal no. 150 of 1994 (unreported), is very instructive when it comes to the question of ascertaining as to whether the killing 37 committed by the appellant was done with malice aforethought or not It was held thus: usually an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had the intention must be ascertained from various factors, including the following: (i) The type and size of the firearm which was used in the attack leading to the death of the deceased; (ii) The amount of force which was used by the attacker in assaulting the deceased; (iii) The part or parts of the body of the deceased where the blows of the attacker were directed at or inflicted; (iv) The number of blows which were made by the attacker, although one blow may be enough depending on the nature and circumstances of each particular case; (v) The kind of injuries inflicted on the deceased's body; (vi) The utterances made by the attacker if any, during, before or after the attack; (vii) The conduct of the attacker before or after the incident of attack." Having jogged the memory of this Court on the law regarding malice aforethought, it is now vital to consider facts vis as vis the law. As already pointed out earlier in this judgment, it is the accused who caused the death of Ng'ondi by shooting him, allegedly, accidentally. It follows that the facts surrounding the shooting of Ng'ondi are as follows: 38 i. PW1 testified that the accused shot Ng'ondi point blank just because of a misunderstanding on the amount of money the accused wanted to be paid by Ng'ondi. The testimony of PW1 did not indicate any fight or manhandling of the accused by the deceased. ii. It is also clear that the deceased was not in possession of any firearm as none of the witnesses testified in that respect. iii. Moreover, there is no indication that the deceased disobeyed any lawful order of the police officers and there is no suggestion that he tried to escape. iv. It is also on record that the deceased, after, being shot was not immediately attended and thus he profusely bled for a long time at the crime scene without receiving any first aid or being taken to hospital for more than forty 40 minutes. v. It was also alleged that the accused was begged several times by PW1, the brother of the deceased, to allow him to take the deceased to the hospital for treatment but he did not allow it. This was to some extent corroborated by the accused himself that when he saw the deceased had been shot and bleeding profusely, he was just sorry for what happened to him but could not offer any assistance because of the alleged chaotic situation at the crime scene. vi. Moreover, it came from the accused's testimony that they left the crime scene leaving the deceased behind without help, and that they did not even collect the used bullet shells because of the chaotic situation at the crime scene. 39 vii. It was the testimony of DW3 and DW4 that the police officers, including the accused, were attacked by the bodaboda/motorcycle riders at the checkpoint and they attempted to dispossess the police officers of the firearms. It was their testimony that DW3 and DW4 were attacked and injured as evidenced by exhibits DI and D2 and the testimonies of DW1 and DW2. viii. It was also the testimony of DW3 and DW4 that PC Charles was attacked and held from behind whilst his firearm was on the chest and he shouted seeking help from the accused who advised him to detach the magazine. ix. It is also on record that the accused was attacked from behind and was hit with a heavy object on the head which caused him to fall, he was held from behind, the hug/embrace style, whilst on the ground, and when struggling to control his firearm he was hit again on the back by a heavy object. x. It was also the DW3's testimony when he was struggling to control the firearm, against persons who wanted to take it from him two bullets were fired from his gun when he was on the ground and hit the deceased who was steps away, but he did not know how it happened and who pulled the trigger. The above facts as extracted from prosecution's and defence cases on record raise the following matters: a. The testimony of PW3 indicates that the blunt objects that hit the deceased, their entrance point was the upper part of the deceased hip and groin and their exit was the lower part of the hip. The wounds 40 show that the shooter was standing and not lying down on the ground. This is because if the shooter was lying on the ground, the entry point of the object that hit the deceased would have been the lower part of the body and the exit would have been the upper part of the body. Therefore, the testimony of the accused that his firearm opened fire when he was lying on the ground is a makeup and thus is given no weight. b. Moreover, the accused testified that after his firearm had fired bullets he was pushed and fell, now if he was lying on the ground when he fired how could he be pushed and fell? This shows that the accused fired at the deceased when he was standing which means to some extent he could control the firearm if reasonable care was taken. c. On the other hand, it is difficult to comprehend and believe the prosecution's narration of events taking into account they relied only on the testimony of PW1, a sole eyewitness they chose to call amongst many others who witnessed the alleged shooting incident. It is difficult to comprehend because of the following: i. The narration of facts given by the prosecution during the preliminary hearing indicates that the deceased was shot by the accused when the deceased was forcing to leave with his motorcycle which was detained and/or immobilized by the accused. However, PWl's testimony did not support this narration of facts. ii. Perplexingly, PW1 testified that the accused intentionally shot the deceased when he was just standing without any 41 manhandling or threat to the accused, and without any forceful attempt to leave with the motorcycle, but, according to PW1, it was because of a simple exchange of words which did not include any insults or displeasing statements. iii. The prosecution's evidence as narrated by PW1, on why the accused shot the deceased, required multiple pairs of eyes and mouths before this Court to be given credence. In light of the above facts and simple analysis thereof, the key factor in gauging whether the accused shot the deceased with malice aforethought or otherwise, in the present case, is the circumstances under which the shooting took place. The accused, as per the above facts, had lined up his defence on the fact that the accused and his colleague J.3525 PC Charles were attacked at the checkpoint and the assailants wanted to dispossess them the firearms. DW3 was also assaulted by a blunt object on the head and the back, his testimony was corroborated by the testimony of D4 (who was at the crime scene), and DW2 (a doctor who attended him at the hospital) and exhibit D2 (a PF3 of the accused). According to the defence case, the firearm unknowingly to the accused discharged bullets in the struggle to retain the firearm which was about to be robbed and in ensuring that it was not going to be taken by the culprits, taking into account the fact that the accused had already loaded the firearm ready to use the same for purposes of rescuing his fellow police officer already surrounded by the raiders and who also paralyzed his control of the firearm. 42 At this juncture, it is vital to consider the circumstances under which a police officer is allowed by law to use a firearm. Section 29 of the Police Force and Auxiliary Services Act, Cap. 322 R.E. 2002 provides circumstances under which a police officer is allowed to use the firearm and the same will be provided shortly. Moreover, under the Police General Order (P.G.O) 274 the manner of using firearms is explained in detail. P.G.O. 274 paragraph 6 reproduces the contents of section 29(1) of the Police Force and Auxiliary Services Act. Further, paragraphs 4 and 5 of the said P.G.O. 274 impose a duty on a police officer to handle firearms and read as follows: 4 Each officer issued with arms and ammunition shall ensure that such arms and ammunition are properly handled and used in accordance with the laid down procedures. This is because each officer is personally accountable and responsible for any improper use of firearms under his care and control. 5. (a) In no circumstances where firearms are used is a Police Officer allowed to open fire with the direct intention of causing death. (b) In no circumstances is a Police Officer allowed to use more than the minimum force necessary to carry out his duties. Moreover, under P.G.O 274 paragraphs 7 and 8 provide that: 7. Police Officers are also entitled to use arms in the following circumstances:- (a) When it is essentia/ for effecting an arrest ofa person who is armed with a lethal firearm. 43 (b) When it is essential for defence of another person who may be seriously injured or killed by an assailant armed. (c) When it is essentia/ for self-defence. 8. In the cases mentioned above, when firearms are used, they should not be used with the aim of killing or inflicting a serious injury and should be directed, when feasible, at the legs only. In light of the above provisions of the law, it is clear that a police officer is allowed to use the firearm for purposes of preventing escape or attempt to escape of a person who is in lawful custody, a convict, preventing a forceful rescue of a person in lawful custody, where force is used to prevent or forceful attempt to prevent the lawful arrest of any other person. Firearms may also be used for effecting an arrest of a person who is armed with a lethal weapon, when it is essential for the defence of another person who may be seriously injured or killed by an assailant armed and when it is essential for self-defence. However, pursuant to the provisions above, a police officer is not allowed to open fire with the direct intention of causing death, or inflicting a serious injury and should be directed, when feasible, at the legs only. The law directs that the force used should be reasonable and minimum necessary to allow a police officer to carry out his duties in accordance with the laid down procedures. It follows that the above provisions of the law justified the accused's initial act of loading his firearm or setting up his firearm in a standby mode for purposes of defending a fellow police officer J.3525 PC Charles who had 44 been under attack by the motorcyclists, because under such situations a police officer is allowed to use firearm. Besides, given the testimonies of DW3 and DW4, which could not be rebutted by the prosecution, the loading of the firearm was a grounding for the self-defense of the accused and a fellow police officer J.3525 PC Charles, and retention of the firearms in the possession of the accused and J.3525 PC Charles. Now, therefore, the key issue to determine is whether the accused opened fire on the deceased intentionally and/or whether he intended to inflict serious injury on the accused. As alluded to herein above, the testimony of DW3 and DW4 indicate that the accused and police officer J.3525 PC Charles were attacked and attackers intended to grab the firearm from them, and they succeeded in dispossessing police officer J.3525 PC Charles of his firearm but when he had already detached a magazine from it. The accused also testified that the bullets that hit the deceased, who was not among the persons struggling to dispossess him of a firearm, were fired accidentally because he did not intend to open fire at the deceased, and he did not know how his firearm opened fire because he was in the struggle to retain it as against the attackers. He acknowledged that it was his firearm that opened fire but it was because of the wrangle between him and the persons who wanted to grab a firearm from him when he heard a bang of his firearm discharging fire. 45 The said defence by the accused was not shaken by the prosecution and which made the defence by the accused heavier than that of the prosecution because of the following reasons: a. The prosecution, in this case, had failed to call key witnesses who would have assisted the court in resolving a situation presenting two equally undesirable alternatives (catch-22 situation) which the court has found itself taking into account the narration of PW1, the sole eye­ witness of the prosecution. His narration of events at the crime scene, unfortunately, was not backed up by any other eyewitnesses given the defence marshalled by the accused. b. In this case, police officer J.3525 PC Charles was a key witness for the prosecution in corroborating the testimony of PW1. This is because the said police officer was present all the time from the Sirari Police Station when they took firearms to the crime scene, and he was occasionally being given orders by the accused. He was the one who was raided first by the motorcycle riders and dispossessed his firearm, but he managed to recover the same after bullets were fired. c. The said J.3525 PC Charles was also mentioned by PW1 as the one who condemned the actions of the accused. The said J.3525 PC Charles would have cleared the doubts on what transpired at the crime scene and which would have assisted the court to understand which version of events, on the fateful incident, between that of the prosecution and defence, is correct taking into account that the defence version of the incidents of the day was supported by two eyewitnesses who were present at the crime scene. 46 d. Other eyewitnesses who were with the deceased and PW1 when heading to Komwamu to buy cement, who witnessed the alleged arguments between the deceased and the accused before shots were fired, and who also witnessed the whole incident were the three friends of the deceased and PW1, namely; Paulo, Emma, Nyangege. Moreover, it was the testimony of PW1 that it was Paulo and Emma who assisted in taking the deceased from the crime scene to the hospital after being shot. However, none of these witnesses were called by the prosecution to corroborate the testimony of PW1. e. Another eyewitness was Valence(Varensi) Chacha. He was the one who guided PW4 (the investigator of the case) in drawing the sketch map of the crime scene. The prosecution relied on the map that he guided in drawing but did not call him as a witness to testify before this Court. f. The prosecution did not explain why these five (5) key eyewitnesses, namely; J.3525 PC Charles, Paulo, Emma, Nyangege, and Valence(Varensi) Chacha were not called to testify in this case. There was not even an attempt to tender their statements for purposes of shedding more light on what transpired on the fateful day and incident. It is also noted that some of those witnesses were listed in the committal proceedings and the preliminary hearing but were not called to testify. g. No evidence was led by the prosecution to prove that the accused mishandled his firearm, or handled it negligently or that he shot the deceased maliciously. 47 Moreover, it is also safe to observe, though by passing, that the prosecution was quite aware of the nature of the defence that would be marshalled by the accused given the testimonies of the prosecution's witnesses namely PW2, PW5, and PW6 who all hinted in their testimonies that they received information that the accused and his colleague were attacked at the crime scene. The prosecution also did not cross-examine the accused against his caution statement which, impliedly, means his narration in court marries what he explained in his caution statement which, according to the testimony of PW6, was taken by A/Inspector Ally, and which, understandably, was not tendered as an exhibit. This analogy has been made to show that the prosecution was quite aware of the nature of defence that would be made by the accused, and if they wished to prove the case against the accused they should have paraded necessary eyewitnesses to prove their case against the accused. See also section 122 of the Evidence Act Cap. 06 R.E. 2019. Moreover, the court understands that there is no particular number of witnesses that is required in law to prove a particular fact, the one who alleges is at liberty to call such witnesses as he deems fit. This finds support under section 143 of the Evidence Act [Cap. 6 R.E.2019] which provides that: 'Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact/ The said position has been echoed in a plethora of authorities; see the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148, Gabriel Simon 48 Mnyele v. Republic, Criminal Appeal No. 437 of 2007, and Nicodemus Awe and 2 Others v. Republic, Criminal Appeal No. 155 of 2014 (both unreported). However, the liberty to pick and choose which witnesses to call is not without limitations. If the prosecution fails to call a key witness without justification this Court is entitled to draw adverse inference against the prosecution's case or any other party, as the case may be. Given the above, it is trite law that failure to call a material witness is fatal, especially to the prosecution case, and where no reasonable impediment for such witness to be called and attend court to testify is explained. In the present case, there was no iota of explanation as to why the said material witnesses for the prosecution were not called taking into account the fact that one was a police officer whose address is known. The other three were friends of the deceased and PW1 who also could have been easily secured to assist the court in entangling the catch-22 situation. It follows that under the law, this Court is entitled to draw an adverse inference against the prosecution's case for the failure to call a material witness. There is a plethora of authorities in our jurisdiction propounding the above position, and for clarity and record purposes, this Court will review a few of them. In the case of Simon Edson @ Makundi vs Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020) the Court of Appeal held that: 49 . the above said doubts could have been cleared by an independent witness. In this case, the pump attendants who were present on that day were crucial witnesses. Any of them ought to have been called to corroborate the evidence of PW2, PW3, and PW4. Failure to call them adversely impacted on the prosecution case. Relapsing to the present case, J.3525 PC Charles, Paulo, Emma, Nyangege, and Valence (Varensi) Chacha were key witnesses to be called for purposes of corroborating the testimony of PW1. Moreover, in the case of Aziz Abdallah v. R [1991] T.L.R 71, the Court held, inter alia, that: "The general and well-known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown the court may draw an inference adverse to the prosecution ", In addition, 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 unfavorable to the person who withholds it.' Therefore, because the prosecution failed to call the said witnesses this Court draws an adverse inference that J.3525 PC Charles, Paulo, Emma, 50 Nyangete, and Valence(Varensi) Chacha, being eyewitnesses to the incident leading to the death of the accused possessed information fatal to the prosecution's case and that is why they were not called as witnesses without justification. In light of the above the prosecution's case against the accused on the offence of murder crumbles because of two major factors. First, the failure of the prosecution to call J.3525 PC Charles, Paulo, Emma, Nyangege, and Valence (Varensi) Chacha as witnesses raises reasonable doubt on the case against the accused. Second is that the defence of the accused that he and J.3525 PC Charles were attacked whilst on duty at the crime scene which led to the accidental or unintended discharge of bullets from his firearm that hit the accused was not rebutted by the prosecution. This also raises another reasonable doubt on whether the accused shot the deceased intentionally as alleged by the prosecution. In light of the above, it is safe for this court to conclude that the accused shot the deceased without the intention to cause his death and that the death of the deceased was not premeditated by the accused. The conclusion that the accused shot the deceased unintentionally has been reached because of the following reasons: i. The accused himself admitted that his firearm discharged bullets when he was under attack struggling to retain his firearm, and the bullets ended up hitting and severely injuring Ng'ondi, and eventually caused his death. ii. Moreover, the deceased was not amongst the persons who were trying to dispossess the accused his firearm, but a bystander who 51 was not a threat to the accused and thus the accused could not have intended to shoot, injure or kill him. iii. The prosecution had failed to establish that the accused intended to shoot Ng'ondi to inflict grievous harm or cause his death. It is also important to point out that even though the accused managed to raise a reasonable doubt on the prosecution's case on the offence of murder levelled against him, he could not completely get off the hook because: i. Being a police officer, the accused was expected to ensure that his firearm and ammunition were properly handled and used in accordance with the laid down procedures. This is because each police officer is personally accountable and responsible for any improper use of firearms under his care and control (paragraph 4 of P.G.O 274). ii. The accused's firearm opened fire not once but twice whilst in the deceased's hands which means he improperly handled the firearm after loading it which resulted in inflicting a serious injury and eventual death of Ng'ondi. This was a violation of paragraph 8 of P.G.O. 274. iii. The weapon was loaded to control a group of people who were not armed with any lethal weapon, and the accused did not take the necessary precautions expected of a police officer before loading his firearm. iv. Moreover, as alluded herein above, the nature of the wounds on the body of the deceased as testified by PW3, indicated that the 52 entry points of the object that hit the deceased were the groin and upper part of the hip(s) and the exit was the lower part of the left hip which means that the accused was on his feet when his firearm discharged bullets and that he could do better in handling his firearm for purposes of avoiding unnecessary fatalities. This means that the testimony of PW1 on the shooting stance of the accused was corroborated by the testimony of PW3. v. Given item (iv) above the accused narration that his firearm discharged bullets when he was on the ground is a makeup, not worthy of consideration. In light of the above, the evidence on record, and given that the prosecution has failed to prove malice aforethought of the accused, the record and the law incline the prosecution's case to manslaughter. In the cases of Laurent Kisingo vs Republic (Criminal Appeal No. 123 of 2013) [2014] TZCA 2196 (30 April 2014) the court held that: It was the accused version that he was fleeing the imminent attack when he got stuck ata fallen tree and fell down, which subsequently caused the accidental firing of the gun. Having thoroughly studied the record, we do not think that the prosecution discharged its obligation to prove malice aforethought, in the circumstances. In the event, we find the appellant not guilty of murder and substitute a conviction of the lesser offence of manslaughter under section 195 of the Pena! Code, Cap 16, R.E. 2002" 53 Besides in the case John Nyamhanga Bisare v. Republic [1980] TLR 6, (Criminal Appeal 29 of 1979) [1979] TZCA 19 (1 December 1979), which demonstrated key principles in murder cases where self-defence is raised, this court finds that some observations of the Court are relevant to this case, the Court remarked that where an accused person honestly and reasonably saw himself as defending himself, the issue is manslaughter or acquittal, not murder or manslaughter or acquittal. The accused is judged not on the facts as they were but on the facts, as he reasonably believed them to be. Given the foregoing, and taking into account that the defence of the accused that he and J.3525 PC Charles were attacked and the wrangle to retain his firearm was ongoing when his firearm opened fire has not been rebutted by the prosecution, it is, therefore, safe for this court to conclude that the accused herein caused the death of Ng'ondi Marwa Masiaga without malice aforethought. It follows that the accused, H. 4489 PC Kululetela Samwel Nyakai@Samwel is hereby found guilty of manslaughter as regards the death of Ng'ondi Marwa Masiaga, contrary to section 195 of the Penal 54 The judgment was delivered in open court in the presence of Davis Julius Katesigwa State Attorney for the Republic, in the presence of Mr. Sijaona Revocatus, learned Advocate h/b of Mr. Juma Mwita, Advocate for the accused, and in the presence of H. 4489 PC Kululetela Samwel Nyakai @Samwel, the accused. M t K. I Kafanabo Judge 18/12/2024 ANTECEDENTS Mr. Katesigwa: The Republic has no previous criminal record of the accused, but it is the prayer of the prosecution that deserving punishment be imposed on the accused according to section 198 of the Penal Code, Cap. 16. R.E. 2022. The Court should consider the Tanzania Sentencing Guidelines, 2023 especially page 37, and be pleased to categorize the manslaughter in this case as high level because a lethal weapon was used. We pray that the Court be pleased to punish the accused according to law. MITIGATION Mr. Sijaona Revocatus Advocate: Since the accused has been found guilty of manslaughter the court be pleased to impose a lenient sentence on the accused because of the following factors: 1. The accused is still young, he is 35 years old and thus a workforce for his family and the nation. 55 2. The accused was a police officer for six years and never committed any misconduct or was convicted of any offence during all that time. Therefore, the accused is the first offender. This means that the accused is not a habitual offender, but a person with a good character in society and the police force. 3. The accused has a family, his mother who is more than 60 years old depends on him. The accused has a wife (who is a housewife) and two children aged four years and six who depend on the accused as a breadwinner. 4. The accused was defending himself against the assailants, he was protecting himself and his fellow police officer. He was also protecting the firearm and the live ammunitions which if taken by the assailants could have caused colossal damage. This means that the accused had no evil intention. 5. The accused had a good character in society and the police force and that is why after the incident he reported himself to the Sirari Police Station. 6. The accused has also spent time in prison which is almost two years (from 31/03/2023 to 18/12/2024). He has learned a lesson and promises to be a good citizen hereafter. K. I Kafanabo Judge 18/12/2024 56 SENTENCE On 28/10/2024 the information for the offence of Murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R. E. 2022 (hereinafter the 'Penal Code') was read over to H. 4489 PC Kululetela Samwel Nyakai@Samwe (hereinafter the accused). The particulars of the offence indicate that the accused on the 31st day of March 2023 at Kubiterere Village within the Tarime District, in the Mara Region, murdered Ng'ondi Marwa Masiaga. The information was read over to the accused who pleaded not guilty to the offence of murder. The accused unequivocally pleaded not guilty to the said information. Following the accused's plea of not guilty to the offence of murder, this Court, after a full trial convicted the accused for the offence of manslaughter contrary to section 195 of the Penal Code. Having convicted the accused, the Court invited counsels representing both parties to address the court on matters they consider relevant and that will have a bearing on the sentencing of the accused. The learned counsels made their submissions for their respective cases as indicated above which this court finds no reason restate the same in this order. In light of the above, this court is thus required to determine an appropriate sentence for the offence committed by the accused. The relevant law on sentencing the accused is found in section 198 of the Penal Code which provides that: 198.-Any person who commits manslaughter is liable to imprisonment for life. 57 The above section provides a punishment of life imprisonment for a person who is convicted of the offence of manslaughter. However, this is the maximum sentence set by the law, but not a mandatory sentence to be imposed on a convict. The court upon thoughtful and prudent consideration, taking into account the circumstances and facts of each particular case, also depending on the nature and gravity of the offence, may exercise its discretion and impose a reasonable sentence on the convict. In the case of Bahati John vs Republic (Criminal Appeal No. 114 of 2019) [2022] TZCA 407 (11 July 2022) when considering a sentence of the person found guilty of manslaughter under section 195 of the Penal Code, and when interpreting the wording of section 198 of the Penal Code which prescribes punishment for the offence of manslaughter held that: "The term 'liable' used in the above provision as highlighter does not impose life imprisonment as the only sentence to a convict of manslaughter. It gives flexibility to the presiding judge to exercise his/her discretion in sentencing depending on the circumstances of each case after considering both the aggravating and mitigating factors, the hiit being total incarceration for life. The Court in the case Faruku Mushenga v. Republic, Criminal Appeal No. 356 of 2011 (unreported) was guided by the interpretation of the phrase "shall be liable to' as it was stated in Opoya v. Uganda (1967) EA 752 by the defunct East Africa Court ofAppeal in the following manner: "It seems to us beyond argument that the words shall be liable to do not in their ordinary meaning require that imposition of the stated penalty but merely express the stated penalty which may 58 be imposed at the discretion of the Court. In other words, they are not mandatory but provides a maximum sentence only and while the liability existed the court might not see fit to impose it." The facts as understood by this court and as gathered from the prosecution and the defence indicate that the offence was committed accidentally and in a chaotic situation as per the evidence captured in the judgment hereinabove. In light of the above facts, it is clear that the accused was attacked when on duty and that his firearm discharged bullets without him, at least knowingly, pulling the trigger. It is also on record that on the same day of the incident, the accused surrendered himself at Sirari Police Station where his statement was taken. The evidence indicates that the accused was injured in the commotion that led to his firearm opening fire. He was taken to hospital and treated as per the evidence on record. It is also noted that the accused has been remanded from 31/03/2023 to date 18/12/2024 which is more than 20 months. Now therefore, as indicated above, the law with respect to the punishment for the commission of the offence of manslaughter is section 198 of the Penal Code (supra) which provides for the maximum sentence of life imprisonment, the minimum sentence is not stated, it depends on the discretion of the court which must be exercised cautiously and prudently. See the case of Bahati John vs Republic(supra). 59 This Court, after considering both aggravating and mitigating factors stated herein above, categorises this matter at a low level of manslaughter because it is a view of this court that the death of the deceased was caused by negligence or recklessness in handling a lethal firearm by a police officer in the course of self-defense, defending a fellow police officer and retention of a lethal weapon as demonstrated in the judgment. It is also a view of the Court that if the situation had been handled with circumspection, it would not have resulted in the death of the deceased. Therefore, according to the guidance provided in the Tanzania Sentencing Guidelines 2023, it is provided that if the Court categorizes the offence of manslaughter at the low level, the sentencing range commences with absolute or conditional discharge to a maximum of four (04) years. Further, under the circumstances of this case, the court takes into account the attack on the deceased and his colleague and the accidental discharge of the firearm, which were also instrumental in reducing the offence of murder to manslaughter. Further, the accused's circumstances (i.e. young age, the dependants, and previous good character) are relevant, the Court also takes into account the time spent by the accused in remand since he surrendered to the police on 31/03/2023 to date 18/12/2024 which is more than twenty (20) months. Therefore, this court sentences the accused to a conditional discharge. The accused is conditionally discharged for a period of twelve months from the date of this order. This conditional discharge is subject to the condition that the accused commits no offence during the period of conditional discharge. If the accused 60 commits another offence during the period of conditional discharge he will be liable to be sentenced for the original offence. Dated oma^f^l8th day of December^2024. This sentencing order was delivered in the open court in the presence of Julius Katesigwa State Attorney for the Republic, in the presence of Mr. Sijaona Revocatus, Advocate h/b of Mr. Juma Mwita, Advocate for the accused, and in the presence of the accused/convict. Judge 18/12/2024 61