KIJA JILUNGA MADUKA el al JUDGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT SUMBAWANGA SUB-REGISTRY CRIMINAL SESSION CASE NO.82 OF 2022 THE REPUBLIC VERSUS 1. KIJA s/o JILUNGA MADUKA @MAHELA 2. JILALA s/o CHOMELEKA @ SENGELEMA 3. NG’WAMA s/o KULWA CHOMELEKA 4. MUSA s/o LUFUGA @ MATEMI 5.SALUM s/o NGELELA @ LUFWEGA 6. SINGU s/o JILUNGA @ MADUKA 7. JILUNGA s/o MADUKA @ FIMBO 8. LUTENGANYA s/o MADUKA @ FIMBO 9. TAGALA s/o MADUKA @ FIMBO Date of Last Order: 13/11/2024 Date of Judgment: 16/01/2025 JUDGMENT NANGELA, J.: Before this court are nine persons who stand charged with three counts of murder contrary to section 196 and 197 of the Penal Code, Cap, 16 [R.E 2022]. Their offences relate to alleged killing of three persons namely: Muhozya s/o Faustine, Ndifini s/o Luhamba @Masai and Luhende s/o Fungu Nyerere (to be referred hereafter as ‘the Victims’). When the charges were read over and fully explained to all accused persons, they strongly denied them. Their denial necessitated a full hearing of this case. Page 1 of 69 For a better appreciation of the facts of this case, I will narrate, albeit in brief, what happened. The alleged murder incident is said to have taken place within the Katavi National Parks. This national park is one of the protected areas overseen by the Tanzania National Parks Authority (TANAPA). According to the laws applicable to National Parks, it being a protected or restricted zone, no person is authorised to enter or carry out any economic activity without authorization. Such activities, include grazing of domesticated animals within the Katavi National Park. The Katavi National Park is, however, surrounded by several nearby villages, one of them being the village of Mabambasi which is in Mlele District, Katavi region. Notwithstanding the prohibitions, the villagers surrounding the park have been intruding the park environs with their cattle. Due to there being several incursions, the Katavi National Park is protected by several park rangers. These are employed to carry out surveillance and arrest whoever is found to have intruded the park boundaries. The Park Rangers do also impound whatever the person may be found with in the park, including cattle or other domesticated animals. On the 1st day of January 2021, while executing their duty as part of park rangers, the three victims found and impounded 110 Page 2 of 69 heads of cattle that were unlawfully grazing within the park area. The 110 heads of cattle belonged to the 8th accused, Lutenganya s/o Maduka @ Fimbo. It was alleged, however, that, earlier the Victims had also impounded other 100 heads of cattle on a similar ground. These, however, were allegedly belonging to Kija s/o Jilunga @ Maduka Mhela (the 1st accused) and Singu s/o Julunga @ Maduka (the 6th accused). Such impoundment of the animals annoyed the accused persons whose heads of cattle were impounded. On such account, they reported the incident to the 9th accused (Tagala s/o Maduka @ Fimbo). He was a commander of the Auxiliary Militia (Mgambo) in the area. Upon receiving such a report, the 9th accused person convened a village meeting. In such a meeting, well attended by several villagers including the nine accused persons, a resolution was passed to invade the park rangers’ camp and retrieve all impounded heads of cattle. Moreover, it was resolved that TZS 5 million alleged to have been obtained from the 8th accused by the victims after his cattle were impounded, should also be retrieved. Based on that resolution, several villagers, including the nine accused persons, Page 3 of 69 entered the Katavi National Park, via the Kavuu river crossing point, on the 2nd day of January 2021. It was alleged that, they did so while being armed with traditional weapons i.e. axes, spears, sticks etc. Upon arrival at the camp, they attacked the three deceased persons to death using traditional weapons and managed to move away all heads of cattle from the pound (kraal) where they were kept. They left the deceased persons’ bodies at the scene of their crimes. After two days, another meeting was again convened. During that meeting it was agreed that some few people should return to the scene of the crimes and remove therefrom the bodies of the deceased and throw them into Kavuu River as a means of destroying the evidence. However, upon arrival at the scene of the crime, those who went there only found the bodies of first and second victim together with some remains believed to be of the third victim whose body, at the time, could not be found there and was believed to have been devoured by wild animals. As for those two bodies found at the scene of the crimes, a decision was made, that they be dumped into the Kavuu River. As such, having been cut into pieces and packed in sulphate bags, they were disposed of in the Kavuu River. Page 4 of 69 Although the accused assumed that everything was a deal done and concealed, little did they know that the blood of an innocent person claims for revenge. That fact was evident because news about the incident skipped out of hand, trickling to the police at Inyonga Police Station. A contingent of police officers, led by the then SSP Evodius Kasingwa and in the company of some TANAPA officers, went to the scene of the crimes. At that scene of the crimes, they were able to recover a piece of small intestine, and a bone suspected to be of human being, a piece of trouser believed to be belonging to the 1st deceased person (Faustine Mhozya) and other items. On that 7th day of January 2021, through a Chain of custody, SSP Evodius Kasingwa handled over all items collected at the crime scene to ASP Beda Musoma. The later sent them to the Chief Government Laboratory Chemist for DNA examination. On the same date, i.e., the 7th day of January 2021, one police officer, namely: F. 7940 D/CPL Tedson, while being assisted by one, Deusdedit Makwala, drew a sketch map of the scene of the crimes. Afterwards, the accused persons were arrested on diverse dates and matched off to police and, later, to the court where they now face charges of murder. Page 5 of 69 While establishing the case for the prosecution, Ms. Florida Wenceslaus and Mr. Gregory Muhangwa, learned State Attorneys, appeared for the republic. On the other hand, the defence team was comprised of Mr. Gadiel Sindamenya, learned advocate appearing for the 1st accused; Mr. Sweetbert Nkumpilo, advocate for the 2nd accused; Ms. Sekela Amulike, advocate for the 3rd accused; Mr. Lawrence John, advocate for the 4th accused. Besides, Mr. Hamad Amour, advocated for the 5th accused; while Mr. Eliud Ngao, advocated for the 6th accused. Other accused persons enjoyed the legal services of Ms. Pendoveela Hussen Nyanza, Advocate for the 7th accused; Ms. Angela Deus Remmy, advocate for the 8th accused person, and Ms. Monica Lugonda, advocate for the 9th accused person. When the matter was called on for hearing, the prosecution summoned 11 witnesses to establish its case. These witnesses included ACP -Evodius E. Kasigwa who testified as Pw-1. His testimony was to the effect that, on the 3rd day of January 2021 he received information regarding the killing of three people at Chamalendi Village, Mlele District in Katavi region and, that, he was able to visit the scene of crime on the 7th of January 2021. Pw-1 narrated to the court how, together with other police officers were Page 6 of 69 able to find a place, within the Katavi National Park, where a temporary pound (kraal) was and, that, it was abandoned and set in fire. He informed this court that, being suspicious of the area, he directed DC Tedson to drew up a sketch map of the area. According to Pw-1, when a search was made about 500 meters from the abandoned kraal, he and his team, were able to recover a piece of an intestine and a bone suspected of being part of human remains, as well as three bangles (bangili) of mixed green and whitish colour; a greenish and yellowish coloured-sole rainboot of the left leg, a Jambo-green coloured trouser (resembling TANAPA officers’ uniform) and its belt that was somehow torn apart, a short- trouser (bukta) that was also torn apart and a mosquito Net (bluish in colour). Pw-1 testified further that, upon finding such items, he filled a certificate of seizure which, himself and the OC-CID of Mlele District, one ASP Beda Msoma, signed. He also filled a chain of custody certificate in respect of the items seized, including the piece of intestine and the bone collected from the scene of the crime. This, he handed over to one D/CPL James, for safe keeping. According to Pw-1, on the 18th of February 2021 at 2:00 to 2:30 pm, while in his office, three Officers from TANAPA came to Page 7 of 69 his office. With them was one person, who happen to be the 1st accused, Kija s/o Jilunga whom they had arrested in connection with the alleged murder incident which took place in the park. According to Pw-1, he re-arrested him. As regards the remains obtained from the Katavi national park, it was the testimony of Pw-1 that such were later taken to the Chief Government Chemist, in January 2021. Furthermore, it was his testimony that, he later instructed the OC-CID Beda Msoma to open a Murder Case involving three deceased namely: Mhozya s/o Faustine, Ndifini s/o Luhamba and Luhende s/o Nyerere although their bodies could not be found. In court, Pw-1 tendered the seizure certificate. This was admitted as Exh.P-1 while the rest of the items listed on the certificate were admitted collectively as Exh.P-2. Pw-1 was thoroughly cross-examined by the defence counsel. During cross- examination by Mr. Sindamenya, who appeared for the 1st accused, Pw-1 told this court that, at the time of his visit to the national park he had no clue who might have been responsible for the alleged murders. He, however, told this court that, later, the police investigating the crimes discovered that one of the persons killed was a TANAPA employee (Askari or Park Ranger). He admitted that Page 8 of 69 he did not know if he was wearing bangles, and he was not informed of his ID Force Number. Besides, Pw-1 admitted that the piece of intestine and the bone believed to be of a human recovered from the scene of the crimes were taken as samples for further investigation/analysis, although no human body was recovered at the site. According to Pw-1, the police came to realise of the deaths after taking the samples and obtaining the results of DNA, which were received on 17th of February 2021 indicating that the samples were of human remains. When cross-examined by Mr. Amour for the 5th accused, Pw-1 admitted that although one of the deceased persons was an employee of TANAPA, when he looked at the duty roster of the date when the incident took place, the said park- ranger alleged to have been killed was not listed as being on duty that day. When asked by this court, Pw-1 told the court that the first deceased was called Mhozya s/o Faustine, a TANAPA employee, and that, he knew of his fate after the DNA tests and after writing to the chief of TANAPA to inquire as to whether the deceased was their employee. Pw-1 admitted, however, that, all along there was no notice of missing TANAPA officer that was made public. Page 9 of 69 However, he maintained that prior information from TANAPA was to the effect that one of the deceased a TANAPA officer. He told this court that the DNA test involved the relatives of the deceased Mhozya s/o Faustine. As for the other two victims who are believed to have been with Mhozya, it was Pw-1’s testimony that the same are presumed to be dead as they have not been found to date. The second witness for the prosecution was a police officer with Police Force No. F.4373 DCPL James. He is a detective police who testified as Pw-2. In his testimony, he told this court that, on the 1st of March 2021 at 8.00, with the Regional Crimes Officer (RCO) and other police officers, went to Majimoto Village to arrest suspects alleged to have been involved in Majimoto IR/53/2021. He narrated to this court how he was involved in the arrest of the 3rd, 4th and 5th accused persons whom he took to Majimoto Police Post. The third witness for the prosecution was also a Police officer with Police Force No. G.4021 CPL Shauri who testified as Pw- 3. In his testimony, Pw-3 told this court that how he was able to arrest the 9th accused person. Page 10 of 69 The fourth witness was a Police officer with Police Force No. F.6408 DSGT Richard, who testified as Pw-4. He testified that, on 1st June 2021, while at Kibaoni Police Post, there came a Police officer from Mpanda who were in the company of TANAPA Park Rangers. According to Pw-4, the police officers were heading to Matiga Village in Mlele, District, Mpimbwe and that he accompanied them to arrest a suspect named Singu s/o Jilunga, (the 6th accused). Pw-4 testified to have further arrested Jilunga s/o Maduka, (the 7th accused) on the 2nd of June 2021 at Ukingwamizi Village. Accordingly, together with the 6th accused, Pw-4 took the arrestees to Kibaoni Police Post for interrogation. Pw-4 told this court that he interrogated Singu s/o Jilunga (the 6th accused person). According to Pw-4, Singu s/o Jilunga confessed to have planned and executed the murders which took place within Katavi National Park. He tendered in court a caution statement of the 6th accused. This was admitted as Exh.P-3. He also told this court that, after arresting the 6th accused, it took ten hours to arrest the 7th accused. The fifth prosecution witness was yet another Police officer with Police Force No. F.7940 DSGT- Tedson. He testified as Pw- 5. His testimony was essentially about the sketch map he drew Page 11 of 69 while at Katavi National Park area on the 7th of January 2021 at 10:30 am, in respect of the scene of the crimes. He stated that such was drawn after the Police were informed about the killing of three people in that area. According to Pw-5, the place was within the National Park, Chamalandi ward, Mabambasi Village. He testified further that, before he drew the sketch map, he did see two kraals that had been set on fire and did see some remains which were also set on fire, and found other items there, including a piece of intestine believed to be of a human being, a blueish mosquito net, a hoe, a piece of a bone, one left hand rainboot (greenish), a torn green trouser with its waist belt, three plastic bangles and other things. The sketch map was admitted as Exh.P-4. The sixth prosecution witness was another Police officer with Police Force No. F.5327 DSGT PRIVATUS. He testified as Pw-6. According to him, on 18/02/2021, he was involved in the recording of Kija s/o Jilunga @Mhela’s caution statement. Pw- 6 stated that, the suspect (now the 1st accused) confessed to have been involved in the murders of the victims. The first accused’s caution statement was admitted as Exh.P-5. During cross- examination, Pw-6 told this court that the first accused told him Page 12 of 69 that he only knew Ndifini s/o Luhamba and Luhende s/o Nyerere but not the third person. However, Pw-6 admitted that he did not see the body Luhende s/o Nyerere. The seventh witness (Pw-7) was a Police officer with Police Force No. G.1018 SGT Eric (previously G.1018-DCPL Eric). He testified as Pw-7 stating how, on the 15th of August 2021, he was summoned by the RCO- SSP Hiyera, who directed him to Kishapu District, in Shinyanga region to arrest a murder suspect. According to Pw-7, upon travelling to Kishapu he arrested one Lutenganya s/o Maduka, the 8th accused person at a traditional healer’s (Mganga wa Kienyeji) house. Pw-7 told this court that, upon arrest, the 8th accused person recorded a caution statement concerning his involvement in the planning of the mission to attack and kill the three victims in the Katavi National Park area. According to Pw-7, the 8th accused person told him that he did so after the heads of cattle belonging to his brother were impounded by a TANAPA Ranger and two other people who were with him. He also told this court that, the 8th accused narrated to him how, having killed the victims, he was involved in the plan to clear the scene of crimes and destroy the evidence. Page 13 of 69 Pw-7 told the court that, the 8th accused had named Kija s/o Jilunga, Jilunga s/o Maduka @Fimbo and Shija s/o Jilunga as the people who went ahead and destroyed the evidence at the scene of the crimes. Pw-7 tendered in court a caution statement of the 8th accused person. Having cleared it, this court admitted it as Exh.P-6. During cross-examination, Pw-7 stated that he was not familiar with the deceased persons but did arrest him while in Kishapu, Shinyanga Region and that is where he also recorded his statement (Exh.P-6). Upon further cross-examination, Pw-7 did admit that the murder incident involved many people, although only 9 people were so far arrested and charged in court. He told the court that according to what the 8th accused narrated to him, the bodies were cut in pieces and dumped into a river. The eighth prosecution witness was another Police officer with Police Force No. G.8342 DC Mkama. He testified as Pw-8. In short, his testimony relates to how he was instructed by his OC- CID ASP Msoma, to record a statement of one Salum Ngelela @Lufwega, (the 5th accused person). Pw-8 told this court, in short, that, while recording the 5th accused person’s statement, the said accused person voluntarily confessed to have taken part in the Page 14 of 69 killing of three people in Katavi National Park and, that, one of such persons killed was called Ndifini s/o Luhamba. Pw-8 told this court further that, according to the 5th accused’s caution statement, which Pw-8 recorded, among the three victims, the 5th accused knew only two, namely: Ndifini s/o Luhamba and Luhende s/o Nyerere. According to Pw-8, in his statement, the 5th accused person stated that, when they attacked the deceased, the deceased ran towards different directions. Pw-8 testified that the 5th accused had named some of his colleagues who went after the deceased Ndifini s/o Luhamba as being: Shigela s/o Bunela, Shija s/o Kadila, Shija s/o Liaga, and Kija s/o Jilunga (the first accused herein), among others, since they were in a large group. Pw-8 tendered the caution statement in court, and it was admitted without objection as Exh.P-7. During cross-examination, Pw-8 told this court that initially he did not know the names of the deceased persons but came to know them afterwards. When asked whether he saw the bodies of those alleged to be murdered, Pw-8 denied having seen them. He however told this court that, it was the 5th accused who confessed Page 15 of 69 to have taken part in the killing of those people and, that one of them was wearing a uniform. The nineth witness for the prosecution was a Police officer with Police Force No. H.1895 DC Emanuel. He testified as Pw-9. In his testimony, he narrated how he was summoned by his Regional Commanding Officer (RCO) and was instructed to proceed to Mlele District, Majimoto Police Station in Katavi Region, where he recorded a statement of Ng’wama s/o Kulwa Chomeleja. However, when he sought to tender the statement, this court found it inadmissible, hence, rejected the prayer. The tenth witness for the prosecution was one Suzana Matemu, a Resident Magistrate at Mpanda Urban Primary Court. She testified as Pw-10. Her testimony was, in essence, concerned with the recording of an extra-judicial statements of the 1st accused person, (Kija s/o Jilunga Maduka); the 6th accused, (Singu s/o Jilunga); and the 8th accused person (Lutenganya s/o Maduka @Fimbo). She tendered in court those three extra-judicial statements and, having cleared them, this court admitted them as Exh.P.8; Exh.P9, and Exh.P-10 respectively. The eleventh witness for the prosecution was a Police officer with Police Force No. H.3356 CPL DANIEL. He testified as Page 16 of 69 Pw-11. He testified regarding how he was summoned by his OC- CID, one SSP Kasigwa, on the 06th of January 2021 and was assigned to investigate a murder incident reported to have taken place in in Katavi National Park. He also told this court that, on the 1st of March 2021 he recorded a statement of one Musa s/o Lufuga @Mtemi (the 4th accused person) at Majimoto Police Station and that the said 4th accused confessed to have taken part in the crime. He tendered the statement he recorded in court, and it was admitted in court as Exh.P-11. Pw-11 did also tell this court that, he recorded a statement of on Tagala s/o Maduka (the 9th accused) at Usevya Police Post, on 27th February 2022. In short, Pw-11 told this court that, the 9th accused (Tagala) told me that he was a Sungusungu “Mtemi” of his area and that he was responsible for the safety of their community. Furthermore, Pw-11 told this court that, the 9th accused did also narrate to him how, on 30/12/2020, he was informed by the 8th accused that his heads of cattle were impounded by three people in Katavi National Park and that he was made to pay TZS 5million, and that on the 31st of December 2020 he was also informed that 110 heads of cattle belonging to Kija Jilunga (the 1st accused). Page 17 of 69 According to Pw-11, the 9th accused did narrate in his statement how, having being so informed about the heads of cattle impounded in Katavi National Park, he called for a meeting and devised a plan to recover the TZS 5million of Lutenganya and the 110 heads of cattle belonging to Kija are retrieved. Further, how on the 1st of January 2021, the villagers crossed the Kavuu River crossing point heading to the national park to retrieve the impounded heads of cattle and the monies. Pw-11 told this court how the 9th accused narrated to him that, though he himself did not cross the river, the rest of the accused went to the park and later informed him that they killed all three victims whom they had found in the park. According to Pw-11, the 9th accused did also narrate to him that the murders were committed within the Katavi National Park. Further that, on the 06/01/2021 the 9th accused, together with nine other Sungudungu commanders, crossed River Kavuu and went to hide away the dead bodies. Pw-11 told this court that, as per the account of the 9th accused, only two dead bodies were found at the scene of the crimes as the third body had been devoured by hyenas. He also told this court that, in his statement, the 9th accused admitted being Page 18 of 69 involved in dissection of the remaining dead bodies in pieces, packing them in “sandarus” (sulphate plastic) bags together with pieces of wood and damping them in the Kavuu River. Pw-11 tendered in court the caution statement of the 9th accused person and, the same was admitted as Exh.P-12. On being cross-examined, Pw-11 told this court that what the 9th accused had stated was that those he had sent to the national park were for purposes of recovering the 110 heads of cattle and the TZS 5million. At that juncture, the prosecution case came to an end paving way for the defence case, given that his court made a finding that the accused persons had a case to answer. Having addressed the accused persons in terms of section 293(2) of the Criminal Procedure Act, Cap.20 R.E. 2022, all accused chose to testify while under oath and called no witnesses to the aid of their defence case. The defence case started by the testimony of the 1st accused (Kija s/o Jilunga Maduka @ Mahela. He testified as Dw-1. In his testimony, Dw-1denied having killed anybody. He also denied knowing the alleged incident of murder of three people in Katavi National Park. He further testified that the extra-judicial statement tendered in court (Exh. P.8) was a pure concocted lie. Page 19 of 69 He urged this court release me forthwith since he did not commit the alleged offences. During cross-examination, Dw-1 admitted being a cattle herder but told the court that he used to graze his cattle heads at the village land and his cattle have never been impounded in Katavi National Park. He told this court upon being further cross-examined that, he was arrested on 8/2/2021 and was taken to TANAPA Camp site in the Katavi National Park where he was detained for 11 days until when he was brought to Police on 18th of February 2021 and, that on all those 11 days he was being beaten up and, that later, on 12th April 2021, he was brought before the court. The second witness in the defence case was the 2nd accused (Jilala s/o Chomeleja). He testified as Dw-2. In his testimony, he denied the alleged offence and the alleged murdering of three people. He told this court that he was totally unaware of those alleged incidents. He urged this court to reject the testimonies made against him contending that, all were lies and the case against him was a framed-up case alleging that three people were killed in the National Park. Dw-2 told this court that, he had expected the prosecution to bring a witness from the office of the Chief Government Chemist to Page 20 of 69 show the truth regarding the alleged deaths or even a doctor’s report. He urged this court to release him because he knows nothing about the alleged murders. During cross-examination he told this court that he had expected a doctor’s report regarding death of someone to be tendered before the court or that of the Chief Government Chemist. Dw-3, Ng’wama Kulwa (the third accused) affirmed and testified that he did not know the basis of the charges levelled against him. He told the court that the testimony received against him was a pure lie. He prayed to be set free. On being cross- examined, he told this court that on the 02nd of January 2021 he was at home with his wife. The fourth accused testified as Dw- 4. He likewise denied the alleged killing of three persons in the Katavi National Park. He called upon this court to dismiss the testimonies offered and set him free. The fifth witness for the defence was the 5th accused (Salum Ngeleja) who testified as Dw-5. He told the court that the charges preferred against him were not true as he never even knew the deceased persons alleged to have been murdered. He told this court that the testimonies offered against him were a pure lie. He, likewise, prayed to be set free. Page 21 of 69 The sixth witness for the defence was the 6th accused. He testified as Dw-6. He also denied the charges and testified that he knew nothing about the alleged killings. For that matter, he prayed to be set free. During cross-examination, Dw-6 told this court that, he did not record any statement, but he was told to sign one without knowing what was record there. He denied being sent to a justice of the peace. The seventh witness for the defence case was the 7th accused who testified as Dw-7. He told this court that, he used to live in Mabambasi Village and, that, on the 1st of January 2021, while asleep at home at the deep of the night, Police came and arrested him. He told this court that he was later taken to the Police station and was brought to the court and charged of murder, the charges he only came to learn while in court. Dw-7 denied all charges and told this court that he does not even know the alleged deceased persons, and nobody mentioned him anywhere as a person who took part in the alleged murders, and he had not confessed before anybody that he committed the alleged offences. According to him, he was only merely joined in the case and for that matter he prayed to be set free. Page 22 of 69 During cross-examination, he admitted that the 1st accused is his son and that he (Dw-7) does own herds of cattle, and he uses them for ploughing his farms. He told this court that his cattle were never impounded and knows nothing about the alleged murders. As his cattle herds are not grazed in the national park area but in his village. The eight witness for the defence case was the 8th accused person, (Luteganya s/o Maduka). He testified as Pw-8. He denied the charges levelled against him or knowing the deceased persons. He urged this court to release him as he did nothing wrong. During cross-examination he admitted that he was sent to a justice of the peace but stated that the case against him was a framed-up case. The final defence witness was the 9th accused, (Tagala s/o Maduka) who testified as Dw-9. In his testimony, he told this court that, before being arrested, he used to live in Chalamandi and that he was arrested on the 27th of February 2022. He disassociated himself with the statement tendered by Pw-11 in court and urged this court to set him free. During cross-examination Dw-9 denied that he was a Sungusungu leader of his village. He also denied that Page 23 of 69 he sent several of his colleagues to the Katavi National Park where the alleged murders took place. There being no further witness to call, the defense case came to its closure with a directive that the parties should file there respective closing submissions, on or before the 13th day of November 2024. Before I move ahead and analyze the evidence in this case, I find it imperative to state that, in performing its duties of dispensing justice, this court is not only charged with the task of assessing the facts against the law, but also considering the impacts of its decision on the overall administration of criminal justice system. It is also worth noting that in the discharge of its duty of administering justice, this court is sometimes confronted with cases that forces it to even consider aspects of larger policy at play, and that call for a striking of a balance between crime control and due process models of justice that looks at, not only the accused, but also the victim. Intrinsically, therefore, while due process is still of utmost importance; crime control and doing justice to the victims are considerations that must as well be taken onboard. The case before me does require such a balance re- assessment. It is one of such a heinous crime where measures of Page 24 of 69 control are made far more necessary, to ensure that justice is not only brought to the victim in question but also fairly meted out to the accused persons. Such broader policy considerations must therefore be considered, prior to delving into the nitty-gritty of the evidence table before me. This being a murder case, it is imperative to underline some of the salient key governing principles operates within such a broader criminal justice policy consideration. First of the key principles is the one regarding the onus of proof. As a matter of principle, the onus of proof in criminal cases always lies on the prosecution side. The standard requirement is that the prosecution must prove its case beyond reasonable doubt. See the case of Said Hemed vs. Republic [1987] TLR 117. Such burden of proof will never shift to the accused at any moment save for a very limited exception. See, for that matter, the cases of Gabriel Simon Mnyele vs. Republic, Criminal Appeal No.437 of 2007 (CAT) (unreported) and Mohamed Matula vs. Republic [1995] T.L.R 3. Second, and based on such first key principle, is the principle that it is not the duty of the accused to establish his innocence. As a matter of law, an accused person should only be convicted based on the strength of the evidence adduced by the credible and Page 25 of 69 reliable prosecution witness (es). See The Republic vs. Shalu Luwayi Kasema & 2 Others (Criminal Session Case No. 35 of 2022) [2023] TZHC 17730 (18 May 2023). That being the case, he/she cannot and should not be convicted because his defence is considered weak or that he failed to defend himself. Instead, his/her conviction should be rooted in a convincing proof based on a beyond reasonable doubt threshold. See the case of Selemani Makumba vs. Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006). Third is the principle regarding reliance on circumstantial evidence to mount a conviction. Essentially, the fact is that the case at hand is purely based on circumstantial evidence. No one witnessed the alleged murders of the three victims. For that matter, the success of this case depends entirely on circumstantial evidence. Circumstantial evidence is a type of evidence which is based on Section 122 of the Evidence Act, Cap.6,[R.E. 2022]. Under that provision, a court is entitled to draw inferences as to the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the case. See the Court of Appeal of Tanzania’s decision Page 26 of 69 in the case of Julius Justine and 4 others vs. Republic, Criminal Appeal No. 155 of 2005 (unreported). In principle, a court may convict an accused based on circumstantial evidence. However, where proof is entirely dependent on circumstantial evidence, all inculpatory facts must be incompatible with the innocence of the appellant and incapable of explanation of any other reasonable hypothesis other than that of guilt. This position finds support in several cases such as Simon s/o Museke vs. Republic, [1958] EA 715; Ally Bakari and Pili Bakari vs. Republic (1992) TLR 10; Hassani Fadhili vs. Republic [1994] TLR 89 (CA) and Manoja Masalu & Another vs. Republic (Criminal Appeal No. 143 of 2020) [2024] TZCA 409 (6 June 2024), to mention but a few. It follows, therefore, that, if this case is to succeed, the above noted principles need to be strictly adhered to by the prosecution side, Besides, the prosecution side must satisfy the court that the requirements ingrained in those principles have been established beyond reasonable doubt. Fourth, given that this is a case regarding the offence of murder, if the prosecution side is to secure conviction, the following must be established: - Page 27 of 69 (a) That the death of a human being has actually taken place. (b) That the death resulted from the act of the accused and; (c) that, the act was done with the intention of causing death, or that the accused did not care whether the death of the deceased will result from his act. From the foregoing discussion, the following issues need to be canvassed in my discussion when determining the guilty or innocence of the accused persons. (i) Whether the alleged three victims namely- Muhozya s/o Faustine @ Mcholo; Ndifin s/o Luhamba @Masai and Luhende s/o Fungu Nyerere are dead. (ii) If the first issue is in the affirmative, whether all nine accused persons are responsible for the murdered the three victims. (iii) If the above issue is in the affirmative, whether the accused did so with the necessary mens rea. As a matter of legal requirement, the prosecution side is duty bound to prove all the above ingredients of the offence and failure Page 28 of 69 to prove anyone of them means failure of the charge itself. In disentangling the above issues, several other collateral questions may need to be considered for the sake of bringing clarity to the matter at hand. As regards the first issue, the evidence relied upon by the prosecution is purely circumstantial since no eyewitness who witnessed the murders, and the dead bodies were never recovered from the scene of the crimes. The other evidence available is that of confessions which made by some of the accused persons incriminating not only themselves but also their co-accused persons. Since the bodies of the alleged victims were nowhere to be found, the immediate question that follows from such a fact is whether a court can convict an accused on a charge of murder in the absence of a dead body. Essentially, murder can be proved on circumstantial evidence even though a body or portions of it have not been produced and the accused has made no confession of any participation in the crime. This is a well settled legal position. For instance, in the Nigerian case of STATE vs. AHMED (2020) LPELR-49497(SC) the Supreme Court of Nigeria held that: Page 29 of 69 “if there are facts from which it can be inferred that the deceased has been killed, a conviction for murder can still stand even though the corpus delicti is not produced.” However, before an accused person is to be convicted in such a case, the fact of death must be certain based on the circumstantial evidence. The need to exercise such a cautious approach is obvious. A charge of murder is a serious charge. I is a serious one because it attracts a death sentence and, once a convict is hanged or executed there is no possible method of putting the machinery of the law in a reverse gear. As far as the present case at hand is concerned, the testimonies of Pw-1 to Pw-11 do not confirm anywhere that the witnesses ever saw the bodies of the deceased persons. The testimonies relate to what the witnesses were able to gather during investigation and their recording of the statements of the accused persons. For instance, Pw-1’s testimony relates to how, having been informed of the occurrence of murders in the Katavi National Park, he was able to visit the scene of the crime, how he witnessed an abandoned pound (kraal) where impounded heads of cattle were Page 30 of 69 supposedly kept, how he recovered some of the remains believed to be human remains, as well as items which are ordinarily worn by humans, such as three bangles (bangili) of mixed green and whitish colour; a greenish and yellowish coloured-sole rainboot of the left leg, a Jambo-green coloured trouser (resembling TANAPA officers’ uniform) and its belt, as well as a short (bukta) and a mosquito Net (bluish in colour. These he tendered together with a Seizure Certificate as Exh.P2 and Exh.P-1 respectively. Although Pw-1 admitted not to be knowing the deceased persons, he did tell this court that it was later discovered that one of the persons killed was a TANAPA Askari (Park Ranger). Pw-4’s testimony fairly connects with that of Pw-1 regarding there being an occurrence of murder of three persons within the Katavi National Park. This is because Pw-4 interrogated and recorded the caution statement of the 6th accused person (Singu s/o Jilunga) and, in that statement, the 6th accused confessed to have planned and executed the murders which, as per Exh.P-4, took place within the Katavi National Park. The caution statement of the 6th accused was admitted as Exh.P-3. That two of the deceased persons were Ndifini s/o Luhamba and Luhende s/o Fungu Nyerere is a fact which is Page 31 of 69 established by Pw-6 and the first accused’s caution statement admitted as Exh.P-5. Further strength on that testimony of Pw-6 comes from the testimony of Pw-7 who told this court that he was the one who interrogated the Lutenganya s/o Maduka @Fimbo (the 8th accused person) and that, as per Exh.P-6, the 8th accused admitted that his heads of cattle were impounded by a TANAPA Ranger and he had to pay TZS 5 million to have the livestock released. According to Pw-7, the 8th accused told him that after the deaths of the three persons, a plan was hatched whereby a team, comprised of Kija s/o Jilunga, Jilunga s/o Maduka @Fimbo and Shija s/o Jilunga, was dispatched to clear the scene of crime, the purpose being to destroy the evidence. There is also the testimony of Pw-8 who told this court that, while recording the 5th accused person’s statement, the latter voluntarily confessed to have taken part in the killing of three people in the Katavi National Park and, that, one of such persons killed was called Ndifini s/o Luhamba. Further that, the 5th accused did confess that one of those three people killed was wearing a uniform. Page 32 of 69 Additionally, the testimony of Pw-10 is also relevant to the discussions regarding the disposal of the first issue. In her testimony, Pw-10 told this court that she was the person who recorded the extra-judicial statements of the 1st accused person, Kija s/o Jilunga Maduka; the 6th accused, Singu s/o Jilunga; and the 8th accused person (Lutenganya s/o Maduka @Fimbo). These statements were admitted as Exh.P-8, Exh.P-9, and Exh.P-10 respectively. In those exhibits there is clear mentioning of the three deceased persons as persons who were killed within the Katavi National Park. Finally, is the testimony of Pw-11 who recorded the statements of Musa s/o Lufuga @Mtemi (the 4th accused person) admitted in court as Exh.P-11 and that of the 9th accused (Tagala s/o Maduka) admitted as Exh.P-11. In essence, looking at the testimonies of Pw-1, Pw-4, Pw-6, Pw-7, Pw-8, Pw-10 and Pw-11, and looking at Exh-P-2 and, reading Exh.P-1 and the extra-judicial statements (admitted as Exh.P-8, Exh.P-9, Exh.P-10, and which appear to be in all fours with the format prescribed by the Chief Justice’s Guide), and looking at the caution statements received in court as Exh.P-5, Exh.P-6, Exh.P-7, Exh.P-11, and Exh.P-12 respectively, there Page 33 of 69 is a clear inference that the three persons in the name of Muhozya s/o Faustine @ Mcholo; Ndifini s/o Luhamba @Masai and Luhende s/o Fungu Nyerere were killed. Besides, their deaths, even if no medical proof was availed and no dead bodies were uncovered so far, were unnatural. From the foregoing, it follows that the first issue is responded to in the affirmative. The three victims, namely: Muhozya s/o Faustine @ Mcholo; Ndifini s/o Luhamba @Masai and Luhende s/o Fungu Nyerere are dead and, their deaths were unnatural. The second issue was predicated on the first issue in the sense that, if the first issue is in the affirmative, whether all nine accused persons are responsible for the murdered the three victims. As I alluded to earlier, if the prosecution side is to establish a crime of murder, there must be proof, on a beyond a reasonable doubt threshold, that the physical act (actus reus) did, not only take place, but it did so with its necessary mental state (malice aforethought) and the same is linked to none other person but the accused. On that note, the question that follows is whether all nine accused persons herein are responsible for the murder of the three Page 34 of 69 victims in the name of Muhozya s/o Faustine @ Mcholo, Ndifin s/o Luhamba @Masai and Luhende s/o Fungu Nyerere. In addressing that question, this court is bound to revisit the doctrine of parties to a crime. As a legal concept, this doctrine holds that, a person (persons) may be held criminally responsible for a crime even if he (they) didn't directly commit it. For that matter, it will essentially depend on the levels of participation of each respective individual. Put differently, the above assumption means that persons who contributed to the crime in one way or the other are considered just as culpable as the person who committed it. Under our law, there are two categories of parties to a crime: the principal offenders and accessories after the fact. As regards principal offenders, Section 22 of the Penal Code, Cap.16 [R.E 2022] is clear. That section provides that, principal offenders include anyone who commits the act or omission that constitutes the offense; or aids or abets another person in committing the offense; or counsels or procures another person to commit the offense in question. From the above position of the law, what follows, as regards the case at hand, is whether the present nine accused persons fall under the category of principal offenders or otherwise. To respond Page 35 of 69 to that question, one must examine the facts of the case in the light of Section 22 of the Penal Code Cap.16 [R.E.2022]. In some way, however, that analysis may also bring into the limelight a discussion regarding the doctrine of common intention provided for under Section 23 of the Penal Code, Cap.16 [R.E.2022]. As regards being a party to a crime, see the cases of Sita d/o Zatto and Others vs. R. (19570 EA. 308, Zuberi Rashid vs. R. (1957) EA.EA 457; Damiano Petro & Another vs. R. [1980] T.L.R 260, Makokoi Chandema vs. Hassan Mtete, (Crim. Appeal No.1999 (Mbeya) (unreported) and Republic vs. ACP. Abdallah Zombe and 12 Others, Crim. Sessions Case No.26 of 2006 (DSM) (unreported). Essentially, as per the facts of this case there is a context that need to be looked at and from it this court will sort out who did what and whether he did what he did with or without intention constituting malice aforethought. From what Tagala s/o Maduka (the 9th accused), Kija s/o Jilunga @Mahela (the 1st accused) and Luteganya s/o Maduka @Fimbo (the 8th accused) stated in their caution statements admitted Exh.P-12, Exh.P-5, and Exh.P-6 respectively, the context under which the murder incidents took place is the impoundment, by the deceased persons Page 36 of 69 (as TANAPA rangers), of several heads of cattle found to be unlawfully grazing in the Katavi National Park. Besides, the incident was also informed by the decease persons’ act of receiving TZS 5 million from the 8th accused, having impounded his 70 heads of cattle on similar grounds. As the facts indicate, therefore, the impounded heads of cattle belonged to the 1st first accused (Kija s/o Jilunga @ Maduka Mhela) and the sixth accused (Singu s/o Julunga @ Maduka) and, the TZS 5 million belonged to Luteganya s/Maduka @Fimbo (the 8th accused). It is also an observed fact that the incidents of impoundment of the cattle and the initial payment of TZS 5 million were afterwards reported to the 9th accused, (Tagala s/o Maduka @ Fimbo), as the Mtemi or head of “Sungusungu”, who convened a meeting. In that meeting he resolved that the impounded heads of cattle and the amount of TZS 5million taken from the cattle owners should be recovered/retrieved as those who impounded them were mere thugs. As per Exh.P-5, Exh.P-6 and Exh.P-12, which I have no doubt narrate a true account of what transpired, nowhere do they show that the 9th accused person suggested to any person that the Page 37 of 69 park rangers, if found, should be murdered. Moreover, in his caution statements (Exh.12), the 9th accused person made it clear, that he did not accompany those who went to retrieve the impounded heads of cattle from the pounds where they were being held by the pound keepers (now deceased). What needs to be noted, however, is that the 9th accused person admits, in his caution statement received as Exh.P12, that, he was, afterwards, informed by the 1st accused that, while retrieving the impounded heads of cattle from the pounds, three people were murdered. That having been said, can the 9th accused be held liable for the deaths? What was his intention from the beginning? These questions demand definitive responses. In my quick assessment, I fail to directly associate the 9th accused person with the acts of murdering the three victims. I will offer my reasoning regarding why I come to that conclusion. Understandably, the fact that the three deceased persons are dead is already established. They are dead and met their deaths while inside the Katavi National Park. However, for murder to stand, the accused must have been responsible in the killing, and he must, as well, harbour malice aforethought. In essence, it may be argued that the 9th accused Page 38 of 69 person was part of those who planned that people should go to the park and retrieve the impounded cattle and the monies earlier received by the park rangers and, for that matter, he also indirectly took part in the incidents. Well, it may be argued that way. However, even if it is argued that way, viewed from the beginning, can it be said that the 9th accused had harboured the necessary malice aforethought? Looking at Exh.P-12, it is clear to me that from the beginning, the 9th accused persons’ intention was known; that is, ‘to recover the impounded animals and the TZS 5million’. Nowhere is it shown or stated in Exh.P-12 that the 9th accused persons sanctioned the killing of anybody or counselled anyone that, while retrieving the heads of cattle from the pounds in the Katavi National Park where they were being held, they should kill the pound keepers. I have not seen such evidence. For such a reason, it is my considered view that the 9th accused person cannot take responsibility of what transpired at the national park after the initial meeting. His conduct does not seem to support a view that he had formed a common intention with the rest that the victims were to be killed. For now, my finding is that he cannot be held responsible, and, for that matter, I hereby acquit Page 39 of 69 the 9th accused from his charges of murder. Even so, I will, afterwards, revert to discuss his fate from a different perspective. Having held so, what about the rest of the accused persons? To begin with, let me examine the fate of Jilala s/o Chomeleja @ Sengelema (the 2nd accused person) and Jilunga s/o Maduka @Fimbo, (the 7th accused person). From the facts of this case and exhibits tendered in court, the 2nd accused is only mentioned to be among those persons who crossed the Kavuu River and entered the Katavi National Park on the date when the homicidal incidents took place in the park. As the facts indicate, the mentioning of the 2nd accused is only found in Exh.P-12, the caution statement of the 9th accused person. This exhibit is exculpatory in nature as the 9th accused does not incriminate himself as having taken part in the murder. Apart from Exh.P-12, nowhere else is the 2nd accused implicated, not even in the confessions made by his other co-accused persons. In my view, since the caution statement of the 9th accused, person does not amount to a confession, I do not find that the prosecution has tabled before this court sufficient evidence that prove beyond reasonable doubt that the 2nd accused person took Page 40 of 69 part in the killing of any of the three victims. As such, I acquit him of all the charges. The next accused person to look at is the 7th accused. As I look at the facts and the evidence relied on by the prosecution side, I do not see the 7th accused being mentioned anywhere as one of the participants in the killing of the three deceased persons. In view of all that, it is my considered view that the prosecution has not tabled sufficient evidence to warrant a finding that the 7th accused person took part in the murder of any of the three victims. Consequently, I will, likewise, acquit the 7th accused from the charges levelled against him. But what about the 1st, 3rd, 4th, 5th 6th and 8th accused persons? An examination of the facts and exhibits tendered in court does show a different scenario. It is a scenario that indicates that the 1st, 3rd, 4th,5th, 6th and 8th accused persons had a role in the murdering of the three victims. Support for such a view rests on the Exhibits admitted as Exh.P.5 and Exh.P-8 (the caution statement and extra-judicial statement of the 1st accused (Kija s/o Jilunga Maduka @Mahela), Exh.P-6 (the statement of the 8th accused (Lutenganya s/o Maduka @ Fimbo); Exh.P-3 and Exh.P-9 Page 41 of 69 (caution and extra-judicial statements of the 6th accused- Singu s/o Jilunga @ Maduka), Exh.P-11 (caution statement of the 4th accused -Musa s/o Lufuga @ Matemi) and Exh.P-12 (caution statement of the 9th accused- Tagala s/o Maduka). Before I look at each of these exhibits, I know that some of the accused persons have, apart from incriminating themselves, also incriminated their fellow co-accused persons. I am also mindful of the fact that, when some of these exhibits were being tendered in court, some were admitted without objections, while other were objected to and the court had to clear them before they were admitted as exhibits. Besides, I am mindful of the fact that, during their defence, all accused persons denied having recorded the caution statements which the prosecution side tendered in court as exhibits. However, the accused persons’ denial or repudiation, came after their statements were already admitted as Exhibits. In the case of Shihoze Seni and Another vs. R [1992) TLR. 330 the Court of Appeal stated that: “if an accused intends to object to the admissibility of a statement /confession, he must do so before it Page 42 of 69 is admitted, and not during cross examination or during defence.” From the above legal position, it means to me that the accused repudiation after the statements were admitted as exhibit cannot, as such, have any effects. Those who raised objections did not raise objections related to repudiation of the statements as such and their objections were cleared before their statements got admitted as exhibits. Having stated so, what then is the position of the law regarding an accused’s confession and, more, one that implicates another accused? What is a confession by the way? In response to the latter question, The Black Law Dictionary, Eight Edition, defines confession to as follows: - "Is acknowledgment in express words by the accused in a criminal case of the truth of the main fact charged or of some essential part of it." What may be summarized, based on that context, is that a confession is a voluntary admission of guilt to an offence. In the case Director of Public Prosecutions vs. ACP Abdallah Zombe & Others (Criminal Appeal No. 358 of 2013) [2016] TZCA 877 (16 September 2016), the Court of Appeal of Tanzania (citing Page 43 of 69 the decision of the then Court of Appeal for East Africa in the case of Anyangu and Others vs. R (1968) EA. 239) observed that: "A statement is not a confession unless it is sufficient by itself to justify the conviction of the person making it of the offence with which he is tried". What the Court is saying is that a statement to be amounting to an admissible confession must be self-incriminating (inculpatory) and not merely exculpatory in nature. This means that, in the first place, the maker must be incriminating himself as a person who committed the offence before he brings his co-accused persons to the net. Put differently, there must, at least, be an affirmative declaration in which incriminating facts are admitted. This is also evident under Section 3(b) and (d) of the Evidence Act, Cap.6 [R.E. 2022]. According to that provision, for a statement (oral or documentary) to be to be considered as a confession it must admit in terms either an offence or substantially that the person making the statement committed an offence. See the cases of Vumilia Sanga & Another vs. Republic Criminal Appeal No. 84 of 2014 (unreported), and Page 44 of 69 Director of Public Prosecutions vs. ACP Abdallah Zombe & Others (supra) where the Court of Appeal of Tanzania reiterated that position of the law. In the case of Director of Public Prosecutions vs. ACPAbdallah Zombe & Others (supra) the Court of Appeal made it clear that: “in order to establish whether the statement is a confession or otherwise, the test always is that it must in the first place indicate to have incriminated the maker with the offence charged as well. In the absence of an incriminating factor, it falls short of a confession; it is something else.” Concerning a confession contained in a caution statement that also implicates a co-accused person, while it is well understood that the right against self-incrimination is one that stands as a cornerstone principle in the modern criminal justice mechanism, in our jurisdiction, the court may nevertheless act on confessions made by a co-accused. Page 45 of 69 In essence, the position of our law is that, once a caution statement is taken to be containing an admissible confession, that fact itself can sufficiently justify its maker’s conviction and, in a relevant case, such confession can also be considered against the maker’s co-accused, even if it is retracted or repudiated and regardless of whether the confession is corroborated or not. See the cases of Hatibu Ghandi and Others vs. Republic, [1996] T.L.R 12 (CA). See the cases of Imbindi vs. Republic [1983] KECA 63 (KLR), Anyuma s/o Omolo and Another vs. R (1953) 20 EACA 218 and Tuwamoi vs. Uganda [1967] EA 84). I am well aware that, as a matter of practice, conviction should not be based solely on the confession of a co-accused given that such evidence is akin to accomplice evidence which requires corroboration to support conviction. See the cases of Selemani Rashid and others vs. R. [1981] TLR 252, and Paschal Kitigwa vs. R [1994] T.L.R 65. However, each case is to be decided based on its facts and circumstances and a court may still convict even where there is no corroboration if it takes the necessary caution as to the dangers of doing so and where it believes that what is stated is nothing but the truth of what transpired. Page 46 of 69 Such was the position in the case of Hatibu Ghandi (supra), where his lordship Francis Nyalali, (the then Chief Justice of Tanzania), made it clear that: “a court can convict the maker of an uncorroborated retracted confession if it warns itself of the danger of acting upon such an uncorroborated retracted confession and is fully satisfied that the retracted confession cannot but be true.” In the present case, the caution statement of the 1st accused, admitted in court as Exh.P-5, contains a confession to the effect that he took part in the killing of Muhozya s/o Faustine (the first deceased). The 1st accused stated categorically what he did to the deceased, and I quote: “Binafsi nilifanikiwa kumchoma mkuki mgongoni” (meaning in a free translation that:” Personally I managed to strike him with a spear on his back”. Essentially, this statement, which is self-incriminating, sufficiently constitute a confession which can be relied upon to convict the accused, even without any other supporting evidence. But there is also Exh. P.6, a caution statement made by the 8th accused person. This does also support the view that the 1st Page 47 of 69 accused was a key participant in the killing of the deceased Muhozya s/o Faustine. In that Exh.P-6, the 1st accused reported to the 8th accused what happened in the Katavi National Park, stating that, the three persons who were found within the park were effectively eliminated and, the impounded heads of cattle were retrieved. Likewise, Exh.P-3 (the statement of the 6th accused) does implicate the 1st accused as one of the persons who took part in the killing of the three deceased persons. It is worth noting that Exh.P-3 is a confession implicating a co-accused and for which, as earlier stated, the position of the law is that a court may consider such confession implicating a co-accused to convict. That position was made clear by the Court of Appeal in the case of Hatibu Ghandi (supra) where the Court relied on section 33 of the Evidence Act, which stated that: “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 Page 48 of 69 other of those persons is proved, the Court may take that confession into consideration against that other person.” In view of all that, it is my finding that such evidence, as contained in Exh.P-5, Exh.P-8 and Exh.P-3, has sufficiently connected the 1st accused to the murder of the Muhozya s/o Faustine@ Mcholo (the first victim) and, for that matter, I find him guilty and, accordingly convict him of the offences he stands charged. A similar finding befits the 5th and 6th accused persons based on their own confessions as per their caution statements received in court as Exh.P-7 and Exh.P-3. Starting with the 5th accused, Exh.P-7 which was the 5th accused’s caution statement, it is made clear that he confessed to have killed Ndifini s/o Luhamba (the second deceased). His, was a material confession which, as Pw-8 indicates in his testimony, was made voluntarily by the accused person. According to Section 27 of the Evidence Act, Cap.6 [R.E 2022], a confession of that kind is admissible in law. In Exh.P-7 the 5th accused stated as follows, and I quote: Page 49 of 69 “Kwa upande ambao mimi nilikuwepo alikimbilia Ndifin s/o Luhamba … mimi nilimpiga shingoni na ubavuni … tulimshambulia Ndifini s/o Luhamba mpaka akafa ….” The above noted excerpt from the 5th accused’s caution statement may be freely translated as follows: “I was on the side where Ndifini s/o Luhamba ran to, and I did attack him on the neck and on the rib-side…we attacked him until he died…” As I stated earlier, the above excerpt does essentially amount to a pure confession for murder of Ndifini s/o Luhamba and the same principle applied to the 1st accused will apply to the 5th accused person. The 5th accused does not mince words. He confessed having attacked Ndifini s/o Luhanda until he died. As regards the 6th accused, himself did also confess to have taken part in the killings. At the time of tendering the 6th accused person’s caution statement the concern was raised that same was recorded by an arresting officer who arrested the accused person and, that the said arresting officer had spent much Page 50 of 69 time with the accused while searching for other accused persons. As such, it was assumed that he might have been tortured. Those concerns, however, were cleared in a ruling issued by this court on the 1st day of July 2024 and the statement was admitted as Exh.P-3. His extra-judicial statement was also admitted in court as Exh.P.9. All these as per the testimonies of Pw-4 and Pw-10 were made voluntarily and, for that reason, the comply with the requirements of Section 27 of the Evidence Act as admissible confessions. Now, according to Exh.P-3, the 6th accused person confessed to have been one of those who went to the park and was able to strike Muhozya s/o Faustine, first by a stick and later by a spear. I also find that in his extra-judicial statement, the 6th accused person did confess to have taken part in the killing. As I warn myself of the dangers of basing a conviction solely on the confession of an accused person without there being further corroborative evidence, I am fully convinced and do find that, what the 6th accused stated in Exh.P3 and Exh.P-9 is nothing but the truth. In my view, the confessions made in Exh.P-3 and Exh.P-9 are material confessions made voluntarily by the accused person. Page 51 of 69 According to Section 27 of the Evidence Act, Cap.6 [R.E 2022], a confession of that kind is admissible in law. The accused’s confession is not only as contained in Exh.P-3 but is in what he reiterated in Exh.P-9 before Pw-10, the Justice of the Peace. On that account, I also find the 6th accused person guilty of murder of Ndifini s/o Luhamba. I thus, convict the 5th and the 6th accused persons of the offences which they stand charged. Let me now turn to the 4th accused person. Essentially, the evidence that associates the 4th accused person with the murders of the three victims is first, his own caution statement received in court as Exh.P-11. According to the testimony of Pw- 11 the accused recorded his statement voluntarily and was not forced, threatened, or tortured, meaning that it was voluntarily made and was admissible under Section 27 of the Evidence Act. In it, he outrightly confessed to have taken part in the killings and implicated the 3rd accused as well. On pages 2 to 3 of the 4th accused person’s caution statement he narrated as hereunder: “Katika Kambi hiyo tuliwaona watu watatu … miongoni mwao niliwatambua wawili ambao ni Ndifini Page 52 of 69 s/o Luhamba na Luhende s/o Nyerere … mmoja alivaa sare … sikuweza kumtambua …. Baada ya kufika tu nakutuona …walikimbia… Katika upande ambao mimi nilikuwepo alikimbilia mtu mmoja aitwaye Luhende s/o Nyerere. Mimi nilifanikiwa kupiga sehemu za miguuni kwa fimbo yangu…. Binafsi naamini nilimpiga akiwa tayari ameshakufa … Watu ambao nawakumbuka ambao walikuwa upande wangu katika kumshambulia Luhende s/o Nyerere ni Pamoja na …Ng’wama s/o Chomeleja …” The above excerpt obtained from the 4th accused’s caution statement (Exh.P-11) if freely translated in English it reads as follows: “At that camp we saw three people, two of them I was able to recognize as being Ndifini s/o Luhamba and Luhende s/o Nyerere…The one who had put on a uniform attire I could not recognize him … When they saw us, they started to be run away… Page 53 of 69 Luhende s/o Nyerere ran towards the side where I was … I managed to hit him by the legs using my stick … Personally I hit him, and I think while he was already dead … Those who were with me in the attack of Luhende s/o Nyerere included… Ng’wama s/o Chomeleja ….” As I have already pointed out hereabove, in essence, Exh.P-11 amounts to a confession. The reason is clear. Apart from incriminating his co-accused Ng’wama s/o Chomeleja (the 3rd accused), the 4th accused does, as well, seriously incriminate himself. Basically, it does not matter whether the accused hit the deceased Luhende s/o Nyerere by a stick when the latter was already dead or not. What is of essence, however, is that he confesses to have taken part in the killing of Luhende s/o Nyerere and does incriminate the 3rd accused person. But one may also refer to Exh.P-12 in which the 9th accused person confirms that, those who crossed Kavuu River and entered the national park, included the 4th accused, the 6th accused, the 3rd accused, and the 5th accused. Consequently, the 4th accused did take part in the killing Page 54 of 69 of the deceased Luhende s/o Nyerere and, for that matter, I also find him guilt of murder. The 2nd, 3rd and 8th accused persons are brought to the net having been incriminated in the confessions made by their co- accused persons. For instance, in his caution statement (Exh.P-3) in which the 6th accused person confesses to have taken part in the crime, he also incriminates the 8th accused (Lutenganya s/o Maduka) stating as follows: “Faustine s/o Mhozya akiwa chini alilia na kuomba tusimuue …. Lufunya s/o Maduka … [ali]choma tena mkuki eneo la ubavu wake wa kushoto … alipigwa teke alipojaribu kuinuka na kukaa tena na aliyempiga teke alikuwa Lutenganya s/o Maduka ambaye ni baba yangu mdogo, ambaye alikuwa na fimbo aliyoitumia kumpiga kichwani askari huyo na kupoteza damu nyingi kichwani, ubavuni, kiunoni na watu wakawa wanamkanyaga-kanyaga ule mwili…” The above excerpt may be freely translated to as follows: Page 55 of 69 “Faustine s/o Mhozya was laying on the ground crying and pleading that we should not kill him… Lufunya s/o Maduka speared him on the left side of the ribs with a spear… when he tried to raise up he was booted by Lutenganya s/o Maduka who is my uncle and who also used his stick to struck that “Askari“ on the head and he was bleeding from the head, the rib-side, the waist, and people trumped on his dead body…” (Emphasis added). In his caution statement though (admitted as Exh.P-6), as well as his extra-judicial statement (admitted as Exh.P-10) the 8th accused stated that he did not cross the Kavuu River. However, as Exh.P-3 indicates, the 6th accused (as a co-accused) does implicate him in his confession. As I stated earlier herein, a confession of a co-accused person can sufficiently be acted upon by the court. The case of Hatibu Ghadhi (supra) is apt to that view. Having said so, I also find that the 8th accused is guilty of killing Mhozya s/o Faustine having been implicated by the 6th accused who also incriminate Page 56 of 69 himself. Accordingly, I also convict the 8th accused person of the offences he stands charged. As regards the 3rd accused persons, a similar approach applies to his fate. The evidence that associates him with the crimes is the incriminating confessions made by the 4th accused and that of the 6th accused persons. In Exh.P-11 which is the caution statement of the 4th accused, who confessed to have taken part in the killing of Luhende s/o Nyerere, the 4th accused did implicate the 3rd accused stating as follows: “Watu ambao nawakumbuka ambao walikuwa upande wangu katika kumshambulia Luhende s/o Nyerere ni pamoja na … Nkwama s/o Chomeleja …” Freely translated, the above excerpt reads as follows: “Those who took part with me in attacking Luhende s/o Nyerere included …. Nkwama s/o Chomeleja”. As I pointed out herein, a court can consider a co-accused's confession that incriminates himself and another accused when that confession is proven, the accused persons are being tried Page 57 of 69 jointly for the same offense and the confession is voluntary and not influenced by other circumstances. As far as this case is concerned, these conditions have been satisfied since, as earlier stated, the 4th accused person’s confession was in no doubt a voluntary confession and since it also implicates the 3rd accused, I see no reason why I should not act upon it in finding that the 3rd accused is also guilty of murder of Luhende s/o Nyerere. I so find and proceeds to convict the 3rd accused of the offences he stands charged. In the overall, while it is true that there is no eye witness in the instant case, it has come to my attention and resolve that given the circumstances under which the alleged offences took place, coupled with the inculpatory, true, and voluntary confessional statements of 1st, 4th, 5th and 6th accused persons, all provides a well-connected picture that indicate and render no other hypothesis other than the involvement of the 1st, 3rd, 4th, 4th, 6th and 8th accused persons in the alleged murder of the three victims. In essence, their participation in the murders of the three victims falls fittingly within indictable acts under Section 22 of the Penal Code as principal offenders. Besides, the way they attacked all three victims does also indicate a common intention and satisfies Page 58 of 69 the requirement of Section 23 of the Penal Code, Cap.16 [R.E. 2022]. As once stated in the case of R vs. Ngereza s/o Masaga & Others [1962] 1 EA.766, at 767 (citing the case of R. vs. Tabuyalenka and Another (1) (1943) 10 E.A.C.A. 51) it was held that: “To constitute a common intention to prosecute an unlawful purpose within the meaning of s. 22, Penal Code … it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so-called thief. Their common intention may be inferred from their presence, their actions, and the omission of any of them to dissociate himself from the assault.” In the same case of R vs. Ngereza (supra), the court considered the import of Section 23 of the Penal Code and found that “common intention” as envisaged under that provision would amount to: “the sum total of a number of similar intentions formed in the minds of the Page 59 of 69 accused persons (though originating possibly in different motives) and irrespective of any measure of conscious agreement between them…” See further the cases of Alex Kapinga and Others vs. R, Crim. Appeal No.252 of 2005 (Mbeya) (unreported) and Shija Luyenko vs. Republic, Crim. Appeal. No.43 of 1999 (Mwanza) (unreported). From the foregoing discussion, there is no doubt, therefore, that they formed a common intention to execute an unlawful act in conjunction with one another, and in pursuit of one common purpose of ensuring the elimination of the three victims. In the upshot of all that, I hereby find the 1st, 3rd, 4th, 4th, 6th and 8th accused persons guilty of murder of Muhozya s/o Faustine @Mcholo, Ndifini s/o Luhamba @Masai, and Luhemde s/o Fungu Nyerere contrary to Section 196 of the Penal Code, Cap.16 R.E. 2022. I accordingly convict each of them. But before I move on to determine the appropriate sentences in respect of the already convicted persons, I find it apposite to revert to the fate of the 9th accused. In his own statement admitted as Exh.P-12, much as he denied having taken Page 60 of 69 part in the murder of the three victims, he has, however, confessed to have planned and arranged for the removal of the bodies of the victims and clearing of the scene of the crime with a view to destroy the evidence. The above stated fact is evident in his own statement where he states as hereunder: “…Baada ya taarifa kuzagaa za tukio lile la mauaji, mimi niliamua kupanga na kutafuta makamanda kama tisa ili kwenda eneo la tukio kuondosha miili ya watu wale. Niliowateua ni pamoja na Masele s/o Mbuge, Bahari s/o Mlyambelele, Mbuga s/o Masonga, Kija s/o Jilunga, Singu s/o Jilunga na Lufunya s/o Maduka …Baada ya kufika eneo la tukio … tulikuta miili miwili tu …Tulizichukua zile maiti tukazikatakata vipande na kuziweka katika mifuko ya suphate na kuchanganya na vipande vya miti mibichi ili zisielee na kuitumbukiza katika mto Kavuu….” Page 61 of 69 Freely translated in English, what the 9th accused sated in Exh.P-12 was as follows: “As the news about the deaths started to spread, I decided to plan and organise a team of nine people and went to the scene of the crime to remove the bodies. Those who accompanied me included Masele s/o Mbuge, Bahari s/o Mlyambelele, Mbuga s/o Masonga, Kija s/o Jilunga, Singu s/o Jilunga and Lufunya s/oMaduka. After reaching at the scene of the crime, we only found two bodies…we took the dead bodies and cut them in pieces and packed them in sulphate bags together with tree logs so that they should not float, and we dumped them in the Kavuu River.” In principle, the 9th accused person confesses to be an accessory after the fact. Section 387 (1) of the Penal Code, Cap. 16 [R.E. 2022], which “applies to all offences”, provides a definition of who is an accessory after the fact. It provides that: Page 62 of 69 “A person who … assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, an accessory after the fact of the offence.” In this present case, the 9th accused person’s act of planning and organizing for the disposal of the victims’ bodies after the victims had been murdered, and, in a manner that the evidence would be lost or destroyed (a fact which he himself confessed in Exh.P-12), was, in essence, an act aimed to assist the offenders (i.e., the 1st, 3, 4th, 5th, 6th and 8th accused) to escape punishment. This is the case because he knew well that these accused persons had committed an offence which is punishable under the law. It is also worth noting that the offence which the 1st, 3rd, 4th, 5th, 6th and 8th accused persons were found guilty of is that of murder. It would follow, therefore, that, since the 9th accused was an accessory after the fact to murder, Section 387 (1) of the Penal Code, which defines who is an accessory, should be read with Section 213 of the same Act. The import and applicability of Section 213 of the Penal Code has been considered in several cases including the case of R vs. Page 63 of 69 Damiano Petero and Another vs. Republic, [1980] T.L.R 260; Paskazia d/o Kabaikye vs. Reginum [1954] 21 EACA, 359; R vs. Nuru s/o Wamai and Others [1955] 22 EACA 417 R vs. ACP. Abdallah Zombe and 12 Others (supra). But there is still a question that needs to be responded to, and which is: can this court substitute the offence of murder for that of accessory after the fact in respect of the 9th accused person? Whether or not this court should proceed to substitute the offence which the 9th accused person faces with that of accessory after the fact, is an issue that needs a bit of analysis before making any conclusion. In the case of R vs. Zombe (supra), this court was of the view that, several cases that have had the opportunity to discuss the applicability of Section 213 of the Penal Code, formulated and adopted the following principles, that: (a) to constitute a person an accessory after the fact, the felony must be complete at the time the assistance is given. (b) The offence of an accessory after the fact to murder is a minor but not cognate with Page 64 of 69 murder, and so, cannot be substituted with it. I am mindful of the fact that, when the Zombe’s case (supra) was appealed against, (see the case of DPP vs. ACP Zombe and Others (supra)). In some instances, the Court of Appeal was in agreement with the High Court that, in essence, and based on Section 300 (2) of the Criminal Procedure Code, Cap. 20 (now R.E 2022), the offence of murder and accessory after the fact to murder are different, in terms of their etymology and, for that matter, they are not cognate. However, the Court of Appeal was of the view that Section 300 (1) of the CPA could be engaged by the Court to substitute the offence charged with a minor offence. The Court had the following to say: “As regards S.300(1) of the CPA, the wording is quite different from that of S. 300 (2) of the CPA… We entirely agree with Mr. Vitalis that the two subsections cover two different situations.” It is worth noting, however, that, the Court of Appeal did not end up there. It made other observations worth considering as Page 65 of 69 I cogitate on the fate of the 9th accused person. In particular, when the Court was invited to invoke Section 300(1) of the CPA and make a finding that a conviction in respect of the offence of an accessory after the fact ought to have been entered against the respondents in that appeal, the Court had the following to say, that: “… despite the wording of subsection 1 of section 300 of the CPA which allows substitution of a minor offence which is not cognate, offence to the original charge, that should not be done at the detriment of the accused person. The accused person must always be afforded a fair trial in enabling him to understand the nature of the intended substituted charge and must be shown to have defended himself on that "new Charge". The Court subscribed to the interpretation of to interpret Sesction 181 (1) of the CPC which has identical wording with Section 300 (1) of the CPA as captured in the decision of the High Court of Tanganyika in case of Elmi bin Yusufu vs. Rex, T.L.R (R) 269. In the case at hand, already the defence case has been closed and there was no alternative charge preferred by the Page 66 of 69 prosecution side against the 9th accused person. If this court was to proceed based on what Section 300(1) of the CPA, Cap.20 [R.E 2022] provides, it is my considered opinion that the 9th accused will be prejudiced. He will not have had an opportunity of knowing in detail the substituted charge and will not be able to defend himself in respect of the substituted charge. Essentially, while it is true that justice needs to be done to the victims, it is equally imperative that the accused’s rights to fair trial should be fully guaranteed. In my view, it was incumbent upon the prosecution side to have carefully studied its case and do that which was needful as they had the ample time to do so. All said and done, I find that although the 9th accused person was an accessory after the fact to murder contrary to Sections 387(1) and 213 of the Penal Code, if this Court invokes Section 300(1) of the CPA at this stage, the 9th accused person will be prejudiced. As such I will not invoke that provision but proceed to acquit the 9th accused of the offence and order for his immediate release unless detained for any other lawful cause. Page 67 of 69 THE SENTENCE IN RESPECT OF THE 1ST, 3RD, 4TH, 5TH, 6TH, & 8TH CONVICTS This is a murder case, and the 1st, 3rd, 4th, 5th, 6th, and 8th accused persons have been found guilty and convicted of murder of the three victims, namely: Mohozya s/o Faustine @Mcholo, Ndifini s/o Luhamba @ Masai, and Luhende s/o Fungu Nyerere. In a situation where an accused person is charged of murder, once such person is found guilty and convicted of such an offence, Section 197 of the Penal Code, Cap.16 [R.E 2022] prescribes only one type of sentence, which is death by hanging of the person so convicted. Since this court has found the 1st accused (Kija s/o Julunga), 3rd accused (Ng’ama s/o Kulwa Chomeleja); 4th accused (Musa s/o Lufuga@Matemi), 5th accused (Salum s/o Ngelela@Lufwega; 6th accused (Singu s/o Jilunga@ Maduka); and the 8th accused (Luteganya s/o Maduka @Fimbo) guilty and convicted them of murder contrary to Section 196 of the Penal Code, Cap.16 [R.E 2022], this court does hereby proceed to sentence them to suffer death by hanging as provided by Section 197 of the Penal Code, Cap. 16 [RE 2022]. Page 68 of 69 Any party, hereto, who feels aggrieved by the judgement and sentence of this court has a right to appeal to the Court of Appeal as provided for under the laws of this country. It is so ordered, DATED AT SUMBAWANGA ON THIS 16TH DAY OF JANUARY 2025 ................................... DEO JOHN NANGELA JUDGE Right of Appealing to the Court of Appeal is fully explained and guaranteed. Page 69 of 69