CHAUSIKU JUDGMNET

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA CRIMINAL SESSION CASE NO. 10183 OF 2024 REPUBLIC VERSUS CHAUSIKU D/O MAHAMUDU…………….…………………….1ST ACCUSED IDRISA S/O ALLY MAZINGE……………………………………2ND ACCUSED FIKIRI S/O ALLY ………………………………………………...3RD ACCUSED SADA D/O ALLY MAZINGE……………………………………..4TH ACCUSED JUMANNE S/O ALLY MAZINGE ………………………………5TH ACCUSED JUDGMENT 17th & 23rd December, 2024 NONGWA, J. Chausiku D/O Mahamudu, Idrisa S/O Ally Mazinge, Fikiri S/O Ally, Sada D/O Ally Mazinge and Jumanne S/O Ally Mazinge have been Charged with information of murder of one Ally S/O Hamis @ Mazinge C/S 196 and 197 of the Penal Code, Cap 16. That on 25th day of June 2020 at Ubaruku village within Mbarali District and Mbeya Region the accused persons did murder one Ally S/O Hamis @ Mazinge (the deceased). From the records, the deceased and 1st accused person were couple and biological parents to the 2nd 4th and 5th accused persons. The 1 3rd accused person is the one who is alleged to have been hired to execute murder of Ally s/o Hamisi Mazinge. The facts also state that the 1st accused person having attended before traditional doctor one Sadick Titu concerning herself and his son, the 2nd accused person’s life and health problems, she was told the source of all their problems was her husband, the deceased. She then communicated to 2nd accused person and agreed to terminate the deceased. The 2nd accused person hired the 3rd accused person to murder his father at a price of TZS 700,000/= which was paid by the 1st accused person and shared equally between 2nd and 3rd accused person. On the fateful evening, the 1st accused person is said to have sent the other children and grandchildren to 4th accused persons’ house so as to remain alone while she facilitates the 2nd and 3rd accused persons murder her husband. The 2nd and 3rd accused persons having arrived at the house, the 1st accused person handled the axe to 3rd accused person who together with 2nd accused person entered the deceased room found him sleeping on his bed and 3rd accused did inflict a cut on the deceased face near the neck using the axe and caused his death. It is stated also that before the two could go away, one child named Salma came back and the 1st accused person gave her TZS10,000/- to go and buy potato fries so as to facilitate the escape of 2nd and 3rd accused person. At around midnight, the 1st accused informed PW4 and other children of the murder of their father, 2 upon seeing him lying on the bed with wounds on his face, PW4 screamed for help, neighbors gathered police also came, they inspected the surroundings and later they took the deceased body and some family members to police for interrogation. Later on, the 3rd accused person was arrested and are said to have led the police to where they had thrown the axe after killing Ally Hamis Mazinge. They were all brought to court facing the information of murder. The accused persons pleaded not guilty. The accused persons have been represented by learned counsels Messieurs Emmanuel Clarence for the 1st accused person, Ezekiel Ndambasye for 2nd and 5th accused and Ramsey Mawamakamba for 3rd and 4th accused persons, for the Republic are Lordgard Eliaman and Dominic Mushi learned state Attorneys. At the hearing, the prosecution side paraded Edson Joseph Chotetimbao (PW1), France Danda Mayemba (PW2); Ramadhan Juma PW3; Hawa Ally Mazinge, (PW4); Medical Doctor Dominic Kadogo Laurent PW5; PF 17828 Ndaki Abel Mayumbwa (PW6), WP. 7706 Detective Tiba (PW7) Ayoub Pamba (PW8), G. 2220 DCPL Ally (PW9), Samson Sengele (PW10), WP 10087 DCPL Evalyne (PW11), E.8265 Detective Sgt Roman (PW12) and G.9928 DCPL Didace (PW13). They tendered the following exhibits; Order for Postmortem Examination (P1), 3 Post Mortem Examination Report (P2), Certificate of seizure of an axe (P3), 4th accused person cautioned statement (P4), an axe (P5), Cautioned statement of 2nd accused person (P6), Cautioned statement of the 1st accused person (P7) and the sketch map (P8). On their defence, the accused persons stood as defence witnesses according to their positions in the information, that is DW1 to DW5 respectively, they had no exhibit. In brief PW1 Edson Joseph Chotetimbao told the court that he lives at Ubaruku, Mpakani village Mbuyuni Suburb since 1997, CCM Ward secretary, close friend of the deceased and are neighbors. He recalled on 25/6/2020 while was at home about 17:00hrs, the deceased called him through phone, he responded and went to the house of the deceased, arrived there they had conversations and went together to buy newspaper and bananas and started going back home. They sat outside the deceased house at a sink up to 20:50s when PW1 left home. Around 00:00hrs heard knock at the door while shouting, that was already 26/6/2020, through the window saw deceased children Hawa and Salma. They were crying asking him to go to their home. On arriving entered the fence, saw the family wife Chausiku Ally, the 1st accused in the dock, daughter and son, 2nd and 4th accused persons in the dock, in the house saw 5th accused, Jumanne Ally son of the 4 deceased crying. He also saw the deceased laying on the bed, saw a wound from his face to the neck, blood scattered down there, but the blood was already thick (zimeganda) showing that it was not recent act. PW1 explained further that as he entered the room and saw the deceased laying on his bed on his left side, covered with bedsheet up to his chest. He asked the wife what had befitted her husband as he had just left him around 20:50s, and the wife told him that she had stomachache stayed long in the toilet and saw the light off came back and found the situation as it was. PW1 said the wife of the deceased and the children they were looking just fine, not even grieving. That the two children the 2nd and 4th accused persons were living at nearby place 15 minutes’ walk from the deceased place. PW1 said was not comfortable with the wife (1st accused) reply as he expected the wife would have shouted for help wake up neighbours to come to their rescue if at all the deceased was attacked by strangers, that the crime did not happen at that time, the room was in order, no signs of fight or people invading the room, he was laid still on his bed covered with bedsheet properly. That police came and interrogated the family members, took the body and the family members. He added that the 2nd accused person came there while drunk. PW1 cemented that 5 apart from being secretary he and deceased have been living as family, shared problems. PW1 also recalled to have heard the deceased complaining for being suspected wizard by his wife the 1st accused person and his son Idrisa the 2nd accused person. Being cross examined, PW1 admitted to have not seen those who murdered Ally Mazinge. PW2 France Danda Mayemba had almost similar testimony as PW1 and added to have been street chair at Mbuyuni suburb in 2020. He recalled on 26/6/2020, around 01:00 was awakened by Leah Mathayo his neighbor that Ally Mazinge has been murdered. Together they went to the crime scene saw the deceased body laid on bed with a wound on his right side of the face, but the chest was open not covered so he asked Omary Seifu to cover the body and leave the head uncovered. Called through phone the village chairman and informed police. He stated to have gone around the house to see if there was any escaping way, saw the compound swept asked the wife who said she swiped previous day. PW3 Ramadhan Juma, the deceased relative stated that on 26/6/2020 like 0200hrs, received a call that Ally Mazinge has been murdered. Went to the crime scene saw a lot of people and police were continuing with inquiries, that the body had a big wound from mouth to 6 the neck, was taken to mortuary at Mbarali Hospital. He also attended postmortem examination, the result was that the cause of death is the wound from the mouth to the neck. After examination took the body for burial. PW4 Hawa Ally Mazinge, told the court that lives at the house of the late Ally Mazinge who died in 2020, on 25th June. Before he died, lived with Salma Ally, Idrissa Ally (2nd accused), grandchildren Chiku and Juma, her uncle Ally Mazinde (deceased) and her aunt Chausiku (1st accused). On 25th June 2020, at 20;00 after dinner 1st accused asked her, Salma and the grand children to go to their sisters’ house, Sada Ally Mazinge, (4th accused) but she did not go instead went to her lover at nearby lodge while the rest went to Sada’s house leaving 1st accused and the deceased at home. At around 22:00 they communicated and all came back home entered the gate and straight to their room, suddenly 1st accused person approached them gave them ten thousand shillings to go look for Chips, went looking for chips, did not get at Kibantula, so went to Mpeleta where they found a long que had to wait for some time. Around 23:00 got the chips and came back home found deceased and 1st accused sleeping. She knocked at the window, told her that she already came back with chips, 1st accused said she is not eating, told her about the change she said she will collect in the morning. They entered 7 their room and ate the chips. Around 00hrs and some minutes, 1st accused wake them up telling them that their father has been cut. They went direct to the room, found her uncle has been cut on the mouth up to the neck, he was on his bed, he was not bleeding and the blood on the floor already clotted. Together with Salma went out shouting, after that went to call their neighbor (PW1). PW4 went on saying that 1st accused did not tell why they should go to their sister that night although they used to visit her and that it was not normal for 1st accused asking them to go for chips at night times. PW5 Dominic Kadogo Laurent, Medical Doctor, examined the deceased body that the cut wound on the tire and neck, suggested death caused by blood loss due to the cut wound, filled the Postmortem form and the size of the wound. The Postmortem order and report were admitted as exhibit P1 and P2 respectively. PW6 Ndaki Abel Mayumbwa, stated to have worked as acting OCCID Mbarali from 2016 to 2021, recalled on 26/6/2020 was on patrol at 0130hrs, got information from OCS Ubaruku, Godfrey Chituru that there was a crime reported at Mbarali station that there was murder committed and the deceased was Ally Mazinge. He prepared police officers, gave them briefing, took the tools required in murder cases, and headed to the crime scene where found some people together with 8 France Mahemba, family of the deceased, asked what happened, was told that has been murdered by being cut with heavy sharp object. PW6 stated to inspected around the area, together with the chairman France, discovered that the area had been swept and look like swept within short time. Upon asking the deceased’s wife said she swept a day before, asked the wife why swept that even footsteps not seen, the gate not broken, she had nothing to say. He entered in the house saw the deceased laying on the bed, the wound was no longer bleeding, already the blood was thick, the blood had gone up to the floor, concluded that it was not an event that happened at the time he was called, seemed to have happened two to three hours before. PW6 said he asked again the wife asked as where was she when that happened, she said she went to the toilet and came back to see her husband already dead. On interrogating the children, they had nothing to say, they said they do not know how it happened. He said there was no breaking up of the doors or window of the house, no footsteps as the compound was swept, so concluded that it was a planned crime within the family. PW6 explained further that they took the body and family members to police Rujewa, arrived at around 0300hrs same night and directed the police to interrogate the suspects and witnesses. 9 PW6 also recalled on 12/7/2020, while at work station at Rujewa, Coplo Didas who was investigating the crime, informed him that name of another suspect has been mentioned that was Fikiri Ally (3rd accused), went and arrested and interrogating him. Further that on 15/7/2020, the investigator sked for permit to go with Idrisa Ally and Fikiri Ally (2nd and 3rd accused person) to the place they threw the axe used to murder Ally Mazinge. PW6 said he decided to join them, it was 10:00hrs, called the OCS Inspector Chitundu to prepare witnesses to accompany them. At 1030hrs arrived at Daily suburb, Mkombwe village Ubaruku ward while led by Idrisa and Fikiri Ally@ras, village executive officer, accompanied them. Suburb Chair Ayoub Said together with other civilian around witnessed. Explaining the area, PW6 said there was a stream for water going to the rice farms. Accused persons were asked the reason for being there and they replied that they wanted to show the axe they used in murdering the deceased, that they were together with wife of the deceased 1st accused and that they feel guilty that is why they came to show the place they had thrown the axe after commission of the crime. PW6 said he was around like two meters and was able to hear what the accused persons were telling the suburb leader. PW6 informed the court that asked civilians around there to assist them look for the said axe in the permanent water stream, for the water was at knee level, civilians entered into the water together, one civilian Samson 10 Sengele discovered the axe and raised it up from the water, Idrisa and Fikiri Ally @ras admitted that it was the axe they threw, filled certificate of seizure, witnesses Ayoub Pamba, Ayoub Said and Samson Sengele around there signed after Idrissa and Fikiri also signed. PW6 said he then labeled the axe with MBA/IR/369/2020, handled it to Coplo Didace who was to send it to the exhibit keeper. The certificate of seizure was admitted as exhibit P3. PW7 WP7706 Detective Tiba, recalled to have recorded cautioned statement of 4th accused person on 26/6/2020 early in the morning around 0600am. After explaining to her all her rights, she started recording the statement in which 4th accused person confessed to have been aware that there were people who were hired to kill her father, the cautioned statement was admitted as exhibit P4. PW8 Ayoub Pamba Village Executive officer of Mkombwe village stated to have witnessed search for an axe. Recalled on 15/7/2020 in the morning while in the office received a call from Godfrey Chitulu OCS of Mbarali to go to the stream at 01, the area within his jurisdiction saying there was a scene, he also informed the chairman of Daily and agreed to him meet at 01 area. On arrival, PW8 stated saw police vehicle with police and some civilians, saw the 2nd and 3rd accused persons who were in the vehicle asked them why they were there and 11 that the accused persons replied came to show the place they threw the axe that was used to kill Mzee Mazinge, the stream of 01. That the suspects were then taken out of the vehicle, together with the civilians the accused persons entered the stream and directed the civilians where exactly they threw the axe. PW8 stated that within few minutes one young man named Samson found the axe, also witnessed the accused persons while in the water confirming that it was the axe they used in committing the crime. He also stated to have signed some documents relating to the seizure of the axe. PW8 described the axe found to be used axe, had wooden handle, sharp, it had like peace of nylon linen at the and it had a nail pierced down the base. PW9 G. 2220 DCPL Ally, stated to have recorded cautioned statement of Idrisa Ally (2nd accused). He recalled on 26/6/2020 at 03:00 was at Police Rujewa, assigned by OCCID, Ndaki Abel Mayunga to interrogate and record statement of one Idrissa Ally Mazinge in relation to the offence of murder. That the 2nd accused admitted to have been involved to have murdered his father in collaboration with some family members including his mother Chausiku Mahamoud, Fikiri Ally and Sada Ally (1st, 3rd and 4th accused person). The statement was admitted in evidence as exhibit P6. 12 PW10 Samson Sengele told the court that on 15 /7/2020, while at the pig slaughter place, saw police in defender heading to the stream together with local leaders, he was called together with other ten people to go witness discovery of an axe in the water stream. That they entered in the stream and he found the axe. The accused persons admitted that it was the axe used in killing Mzee Mazinge. PW10 said he was then recorded his statement. PW10 identified the axe (exhibit P5) being a used one, it has a nail at the base of the handle and a nylon material at the axe hole and a wooden handle. PW11 WP 10087 DCPL Evalyne from Police Rujewa recalled on 26/6/2020 at about 05:30am, while at work station was called by the investigator who asked her to go and interrogate the accused named Chausiku Mahamoud, (1st accused). She stated further that she recorded her cautioned statement after informing the accused person all her rights and she admitted to have been involved in the murder of Ally Mazinge who was her husband. The statement was admitted as exhibit P7. PW12 E.8265 Detective Sgt Roman recalled on 12/7/2020 entered office at 18:00hrs as investigator on duty. Around 15 minutes to 23:00 the OCCID by then Mr. Ndaki Mayunga, called him through phone saying there was an accused person arrested, Fikiri Ally, (2nd accused person) 13 and was in lock up, he was to interrogate him and that he admitted to have been involved in the commission of crime. The statement was not admitted in evidence due to some irregularities. Lastly is PW13 G9928 Dcpl Didace who is the investigator, recalled that on 26/6/2020 around 01:00 to 02:00, together with acting OCCID Ndaki, were on patrol with other police men as usual received a report that there was murder one Ally Mazinge at Ubaruku, headed to the crime scene at Mbuyuni Suburb, Mpakani Village, Ubaruku ward together with other police officers. That he found the deceased body lying on bed, inspected the crime scene and sketch map was drawn by G. 1009 D/C Athuman Majala being assisted by the suburb chair named France Mayemba. PW13 stated further in the deceased room, the deceased was on the bed, the net was still tied up, blood on the floor (already Coagulate), the place was calm no signs of struggle, no door or wall had been broken. At the seating room and outside the unfinished building the ground was wet, and the ground swept so he found no traces of a passerby. PW13 said he interrogated the wife of the deceased, 1st accused person, that is Chausiku asked as to when ground was swept she said the day before, and that the crime was committed on 26/6/2020 at 00:00. PW13 concluded that the 1st accused person was lying, then they took the family members to police for further 14 interrogation. Some police were assigned to record suspects statements. Upon reading the accused persons’ statements discovered that one Fikiri Ally @Ras was mentioned but not arrested so he made a trap and arrested him. PW13 also recalled on 15/7/2020, 2nd accused persons, requested to go and show where they had thrown the axe they used to kill Ally Mazinge. Together with Ayoub Pamba VEO of Mkombwe, Daily suburb Mwankunje and some neighbors including Samson Sengele witnessed the show at 01 area in a stream. PW13 also said the axe was found by the assistance of other civilian after almost 20 minutes’ search, PW10 found the axe and the accused persons confirmed that it was the one. That Seizure certificate was filled by Ndaki the accused persons signed the form, police also signed and the witnesses signed. PW13 explained further that acting OCCID took the axe and labeled it with case number MBR/IR/369/2020 and handled to him for sending to the exhibit keeper. PW13 identified the exhibit P5, the axe, certificate of seizure, the PMR, Sketch map and cautioned statements of the accused persons. In defence DW1 Chausiku Mahamudu 57years testified that on 25/6/2020 around evening at 20:00hrs, after dinner with her husband, the deceased, she continued with house works, and went to sleep, the deceased had gone out and came back later around 23:00hrs, went and 15 opened the gate, started pushing her to the bedroom and continued beating her. That she decided to take something sharp, and cut him on his face, and ran away to hide outside. She said she used a mirror to cut him, found him calm, asked forgiveness but no response so she shouted as she found him dead and people gathered. DW1 denied to have intentionally killed her husband. That she lied to the people around because they came carrying weapons like machetes, sticks so she was worried they might harm her, the chairman came and police came in, was afraid to tell the truth, so lied that she was in the toilet when the deceased was murdered. As to exhibit P7, her cautioned statement, she said she gave the statement involuntarily. She insisted that she did not involve anyone in killing her husband, that the 2nd, 4th and 5th her children just arrived after the crime has been committed. DW2 Idrissa Ally Mazinge, recalled that on 26/6/2020 around 0100 to 0200 night was at five lodge bar, taking alcohol together with John and Francis Lyatuu, received a call, from unknown person but did not understand each other for the music sound was so high, went out to contact the person again, but received another call telling him to go home (fathers’ place) because there was problem. That he decided to call his father but the phone was not received, called his mother she 16 was not reachable. That took bodaboda heading home to see what had happened. On arrival home outside the fence saw many people and heard that his father was dead. That they were all taken to police while he was drunk. On 30/6/2020, was tortured and forced to sign documents including cautioned statement exhibit P6. DW2 denied to have hired 3rd accused to murder his father or to have been involved in the killing of his father. He alleged that on 15/7/2020 was taken to 01 by police using police motor vehicle and saw police ordering two people to enter the stream and few minutes they raised an axe saying they have found it. He distanced himself from the commission of the offence. DW3 Fikiri Ally stated that on 12/7/2020, around 16hrs, one friend who asked him to meet at the gossiping place (kijiweni) went to the place, used to smoke bhangi, few minutes were under arrest and send to Mbarali Rujewa, at police Mbarali. Then he was accused of murder and that he knew nothing concerning the said crime. He admitted that on 15/7/2020 was sent in the police vehicle, together with 2nd accused person to a place he did not know saw many people, police asked people around there to volunteer to enter the water and look for an axe, one civilian saw the axe he had nothing more than saying he was severely tortured at police station. 17 DW4 Saada Ally Mazinge, recalled on 26/6/2020, it was night around 01:00hrs was informed that there was problem at her parents’ house, so she arrived at the house and found her father dead. She denied the allegation of involvement in the death of her father and insisted that the cautioned statement was recorded by force at the police station, that she knew nothing relating to the murder of her father. DW5 Jumanne Ally Mazinge recalled on 26/6/2020 to have received call from his young sister Salma around 0000 to 0100hrs, she was crying, he was to go home immediately, he arrived at his parent’s home only to find his father dead, saw many people and police around the house. He said the death of his father is well known by his wife, 1st accused person who is also his mother because she was living with his father. The above marks a brief summary of evidence of both sides. From the evidence tendered there is no doubt that Ally s/o Hamis Mazinge was murdered on the material date while at home and as per exhibit P1 & P2 PMR, and PW1, PW2, PW3, and PW4, PW5, PW6 and PW13’s testimony, the cause death was due to cut wound on the cheek involving the pterygoid bone up to the neck with cut both jaguar vessels also cut wound around the mid trachea which led to loss of blood 18 leading to hypovolemic shock, evidence that it was unnatural death as explained above. The only issue is who murdered Ally Hamis Mazinge. Being a criminal case, in terms of section 2(a) of the Evidence Act, Cap 6 burden of proof lies with the prosecution and the standard is beyond reasonable doubts. The phrase ‘prove beyond reasonable doubt’ was discussed in the case of Magendo Paul and Another vs Republic, [1993] TLR 219 where the court stated as follows: ‘For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed.’ Admittedly there is no eye witness, however, the 1st accused person admitted in her defence that she is the one responsible for the death and that it was on provocation after being abused by the deceased. She claims to have cut the deceased using a mirror. For the rest of the accused persons, they have distanced themselves from the commission of the crime and they were linked from statements recorded by police officers. Thus, the prosecution sought to prove the case against the accused persons on circumstantial evidence. In dealing with circumstantial 19 evidence, the Supreme Court of India in Balwinder Singh vs State of Punjab, 1996AIR 607, had this to say: 'In a case based on circumstantial evidence the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.’ [Emphasis supplied.] Also, in R. vs Kipkering Arap Koske and Kimure Arap Matatu (1949) 16 E.A.L.R.135, the Eastern Africa Court of Appeal stated that in order to justify, on circumstantial evidence, the inference of guilt, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than of his guilt. Again, it is the duty of the prosecution to prove facts which justify the drawing of this inference from the facts to the exclusion of any reasonable suggestion of innocence. The burden never shifts to the accused person. In our jurisdiction similar position was stated in Ally Bakari and Pili Bakari vs R. [1992] TLR 10, the Court stated: ‘Where the evidence against the accused is wholly circumstantial, the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond 20 reasonable doubt and must be clearly connected with the facts from which the inference is to be inferred.’ In this case the 1st accused was the last person to be seen with the deceased which simply means that, where there is evidence that an accused was the last person to be seen with the deceased alive then there is a presumption that he is the killer unless he offers a plausible explanation to the contrary. There is abundant evidence from PW4 that was the last person to been with the deceased. PW4 testified that they left the deceased at around 20:00hrs with the 1st accused when they were sent by the 1st accused to their sister (4th accused) and after their return at 22:00 were immediately sent to buy chips until at around 00:00 when they were told had been cut. In her defence the 1st accused admitted to have cut the deceased with a glass due to a fight. The first accused person in her defence admits to have caused the death of her husband due to beatings from her husband, and she claims to have cut her husband using a mirror. However, her evidence that she used a piece of mirror in unbelievable, when weighed against evidence of PW3 who explained that wounds were 13cm by 10 cm by 12 cm and 5cm by 4cm by 6 cm. These measurements found in exhibit P1 and P2 that there was cut wound on the cheek involving the pterygoid bone up to the neck with cut both jugular vessels estimated at 13cm by 10 Cm by 12 Cm had also cut wound around the mid-trachea of 5 by 4 by 6 cm 21 fractured pterygoid bone (see exhibit P1 and P2). The prosecution witness who arrived at the crime scene, saw no piece of mirror around there. Be that it may what matters is that the 1st accused is the one who killed and not the weapon she used. In Kitonyo s/o Machungu Mwita vs Republic, Criminal Appeal No. 540 of 2020 2024 TZCA 648 (26 July 2024; TanzLII) the court stated; ‘… the deceased's deaths were due to the injury inflicted after being hit brutally on their heads, it is clear that the weapon used was a deadly weapon; regardless of it being an iron bar or a machete. Therefore, the issue on whether the same was a machete or iron bar is minor and it has no impact in respect of the facts necessary to prove the ingredients of the offence of murder.’ Connected to the above, the 1st accused told lies when asked by those who responded to shouts of help by PW4, according to PW1, PW2 and PW6 when the 1st accused was interrogated said was in the toilet when the deceased was attacked. Thus, if indeed the death was due to the fight as she suggested in his evidence ought to have set that defence from the beginning when being asked. It is the law that lies of an accused person may corroborate the prosecution case. See Aliyu Dauda @ Hassan & Others vs Republic, Criminal Appeal No. 282 of 2019) [2021] TZCA 453 (9 September 2021; TanzLII). 22 Apart from the admission of the 1st accused, another evidence which implicates her with the offence is her conduct, it is settled principle that conduct by an accused after or before the incident may spell his guilt. See Miraji Mussa Rashid vs Republic, Criminal Appeal No. 651 of 2022 [2024] TZCA 667 (31 July 2024; TanzLII). In this case the conduct of the 1st accused to send PW4 and other family member to their sister at night and to buy chips suggest that was making every possible effort to execute the murder. This is also seen in her cautioned statement exhibit P7. Taking the prosecution evidence cumulatively and admission of the 1st accused in her defence, the case against her has been proved beyond reasonable doubts. Coming to the 2nd and 3rd accused person, their connection to the offence comes from confessional statements of the 1st and 2nd accused, that is exhibit P6 and P7 being named to each other, evidence of the co- accused. Section 33 provides; ‘(1) When two or more persons are being tried jointly for the same offence or for different offences arising out of the same transaction, and a confession of the offence or offences charged made by one of those persons affecting himself and some other of those persons is proved, the court may take that confession into consideration against that other person. 23 (2) Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co accused.’ The cautioned statement of 2nd accused person was repudiated, it is the law that repudiated or retracted confession can still form the basis for conviction even without corroboration but after the court has warned itself of the danger of basing conviction on such evidence. Also, as a matter of practice a retracted or repudiated confession requires corroboration. That is independent proof must confirm, validate, and strengthen the force of the confession in its material details. It is trite that the corroborating evidence does not necessarily need to confirm or validate all the details and particulars in the confession. In Flano Alphonce Masalu @ Singu vs Republic, Criminal Appeal No. 366 of 2018) [2020] TZCA 197 (30 April 2020; TanzLII) the court stated; ‘The law is that where an accused person retracts his confession the court can convict him on the uncorroborated confession provided that it warns itself of the dangers of acting solely on such confession and if it is fully satisfied that the confession cannot be but true.’ I have read the 1st and 2nd accused cautioned statements that is exhibit P6 and P7 and observed that the said three accused gave account in detail on what transpired on the fateful night to the time they 24 were arrested. They explained the role each of them played. Some of the details given by 1st and 2nd in their respective cautioned statements could not be given by any other person but by the accused themselves. For instance, in exhibit P6 the statement of 2nd accused person states to have used an axe to murder his own father and that they went and throw the axe at a water stream at 01 farm area. At page 4 and 5 the statement reads; ‘….ndipo Fikiri s/o Ally @Ras aliniambiawaandae shoka ambalo litatumika katika kumuua baba, nikampigia mama na kumwomba (mama) aandae shoka la kumuua baba na aliweza kunijibu kuwa shoka lipo, na aliniambia niendelee kubakia hukohuko atanijulisha wakiondoka wadogo zangu ambao ni Salma d/o Ally @ Mazinge na Hawa Ally @Mazinge ambao walikuwa nyumbani, ilipofika saa 21:00hrs ya tarehe 25/06/2020 aliweza kuniambia twende baba ameshalala na wadogo zangu Salma d/o Ally @ Mazinge na Hawa Ally @Mazinge wametoka hivyo tufanye haraka. Niliondoka na Fikiri s/o Ally @Ras had nyumbani kwetu na nikamficha kwenye chumba change na baada ya kujiridhisha kuwa kweli baba kalala kitandani kwake ndipo nilimchukua RAS na kumwingiza ndani ya chumba cha baba pamoja na kumkabidhi shoka moja yenye mpini wa mti na ndipo Fikiri s/o Ally @Ras aliweza kumuua baba kwa kumkatakata na shoka hiyo maeneo ya kwenye shavu na kumpelekea babakufariki dunia hapohapo. Mama yangu Chausiku d/o Mahamudu @Abas, alinikabidhi fedha kiasi cha Tsh. 700,000/- niliweza kuzihesabu na kisha 25 kumkabidhi Fikiri s/o Ally@Ras Tsh. 350,000/- na fedha nyingine nilibaki nayo mimi kwa matumizi yangu na kisha niliondoka pale nyumbani pamoja na shoka tuliyotumia kummua baba na shoka hiyo nakumbuka niliitupa maeneo ya mfereji wa maji ya kumwagilia mashamba wa 01 uliopo huko Ubaruku, tuliondoka na kurudi kwenye baa ya 5lodge kwaajili ya kuendelea kunywa pombe….’ The 2nd accused cautioned statement have been corroborated by the evidence of PW6, PW8, PW9, PW10 and PW 13 which explains the whole scenario of accused persons leading the police to the place they threw the axe, exhibit P3 and P5 the certificate of seizure and the axe respectively. Also, evidence of PW4 corroborates exhibit P7 on how the 1st accused conducted herself before death news of the deceased was passed to them. The 3rd accused person in his defence denied the allegation giving a different story of his arrest and alleged the case to have been fabricated against him. As hinted above his linkage to the case is based on exhibit P6 and P7 which irresistibly points his involvements in the commission of offence. I have considered his defence and find the story he gives has no weight and is trying to run away from his own shadow so as to distance himself from what he did. Regarding the 4th accused person, knew the intention of 1st accused person and from the cautioned statement, exhibit P4 she 26 warned her mother not to execute her plan, saying that ‘mbona baba mwenyewe ameshajiishia,’ this means their father was already weak, this has been supported by the 5th accused person in his defence that his father has been weak for a long time. The 4th accused cautioned statement is very clear and has explained well the plan 1st accused had against her husband. In her defence DW4 changed the story saying she did not give that statement at police and that she was forced to state so. This I take it as an afterthought because she did not raise it before when tendering of the exhibit in evidence. In her statement, exhibit P4, she has narrated the background of the commission of the offence by her mother and his brother Idrisa and all attempts made by her mother to terminate the life of their father using poison. However, she never reported anywhere, I understand as a child she was placed at crossroads in decision making but kept insisting her mother to leave their father and not kill him. Luck for her she was not part of the executors. The prosecution evidence did not point the 5th accused person being among the executors, and in his defence he insisted that the person who knows better about the death of his father is the wife, 1 st accused person. He insisted that his father has been weak for a long time, a thing that has been stated by 4th accused person in her 27 statement, exhibit P4 when she insisted the 1st accused to spear her father for, he is weak already. Flowing from the above, the prosecution has managed to prove the role played by the 1st accused person in facilitating the commission of the crime by 2nd and 3rd accused persons. The 1st accused person being the main actor did send the rest of the family members to their sister with no apparent reason, as per testimony of PW4, on 25th June 2020, at 20;00 after dinner 1st accused asked her, Salma and the grand children to go to their sisters’ house, Sada Ally Mazinge, this was to facilitate the 2nd and 3rd accused access the deceased house un noticed, this is seen also in exhibit P6 and P7 cautioned statement of 2nd and 1st accused persons respectively. Also, sending the rest of the family members to buy chips at late evening at around 22:00 with view of facilitating escape of the 2nd and 3rd accused person. Another piece of evidence is the 1st accused person waking up the rest of the members of the family informing them that their father has been cut. All these pieces of evidence points finger to the 1st accused person and her accomplices, the 2nd and 3rd accused persons to have mercilessly murdered the deceased using an axe. It is my verdict that the prosecution has proved the charge of murder beyond reasonable doubt against the 1st, 2nd and 3rd accused 28 persons, the prosecution evidence irresistibly points none else than the first three accused persons to have murdered the deceased Ally S/O Hamis Mazinge. The accused persons; Chausiku D/O Mahamudu, Idrisa S/O Ally Mazinge, Fikiri S/O Ally are therefore, found guilty and consequently they are convicted for the offence of murder contrary to section 196 of the Penal Code Cap. The case has not been proved against the 4th and 5th accused persons, they are hereby found not guilty and consequently acquitted. V.M. NONGWA JUDGE 23/12/2024 Right of appeal is explained as per section 323 of the Criminal Procedure Act, Cap 20 R.E. 2022 Dated and Delivered at Mbeya this 23rd December 2024 in presence of the parties. V.M. NONGWA JUDGE 23/12/2024 29