LUWONGO JUDGEMENT

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL SESSIONS CASE NO. 44 OF 2023 REPUBLIC VERSUS HAMISI SAID LUWONGO@MESHACK JUDGMENT 20thNovember &26thFebruary,2025 MWANGA, J. In this case, the fray involves an erstwhile couple and a bedfellow. The blossoming intimacy fledged, bad blood between them flew, and squabbles began and grew into irreconcilable differences. Indeed, they had reached their climax in matrimonial quarrels, but none of them could swallow their pride and move on. Such a battle led to the disappearance of the accused’s wife, Naomi Orest Marijani. After a long and thorough investigation by the police, it was revealed that the said Naomi Orest Marijani was slain as opposed to the accused’s report that she is missing to date. 1 Following such findings, the accused person, Hamisi Said Luwongo, was linked to the incident of murder as the prosecution believes there is a chain of circumstances necessary and consistent pointing out only the guilt of the accused. He was therefore charged under sections 196 and 197 of the Penal Code, Cap. 16 R.E 2002, now R.E 2022, for her death. The particulars of the offense are that, on 15th May 2019, in the Gezaulole area within Kigamboni District in the Dar es Salaam region, the accused murdered his wife, Naomi Orest Marijani. To better understand and appreciate the matter, I find it apt to narrate briefly the material background facts that led to the accused’s arraignment. On 19th May 2019, the accused reported the missing of his wife at Mjimwema Police Post and later to Kigamboni Police Station. He also informed his wife's relatives that Naomi Orest Marijani had left their child and matrimonial home without a trace on 15th May 2019. He showed them a string of mobile phone text messages from his mobile 2 phone purporting to have been sent by his wife, stating as follows:- “mwe simu yangu iliibiwa nimeipata nahisi hao vijana wako, then nakupa taarifa leo ya ngap hulali nyumban muda sasa, sasa nakupa taharifa mm naondoka mtoto namwacha nyumbani peke yake na kesho nasafir naenda nje ya Tanzania sasa ww kaa na vimalaya vyako vya hovyo mimi nina mtu mwenye pesa sio ww kiruka nj …Na hutonipata tena kwa namba hii…be responsible kulea mtoto”. From the above excerpt of the text messages, the said Naomi Orest Marijani was seen complaining to the accused about his immoral behaviors of dating prostitutes and not coming back home for some time. Also, informing the accused that she is traveling abroad and dating a rich man, and they will never see each other again, so the accused shall take care of their daughter. Thus, the police ordered him to regularly report at the police station on the progress of his missing wife. On 16th July 2019, almost two months later, at Central Police Station, while reporting, the accused was interrogated by 3 a police officer about the text messages found in his phone purported to have been sent by his wife using his wife’s mobile number sent at the exact location in the same handset. The accused decided to confess to having killed his wife on 15th May 2019 while in their house by assaulting her to death, bruising the body, and later taking it to the chicken hut and placing it in a pit that was dug in for wasteful substances. He burned the body with charcoal and other materials collected within their house. In his confession statement, the accused also explained how he moved the ashes and bones remains in his motor vehicle, namely Subaru Forester, with Reg. No T 206 CEJ to his farm situated at Malogoro Village in Mkuranga District, buried them in the pre- prepared pit and planted a banana tree. On the same date, 16th July 2019, the accused led investigators and other officials to the scene of the crime and to his farm at Malogoro, where he buried the deceased burnt remains. Samples for DNA tests were collected to be tested by the Chief Government Chemist Officer, and later, the test revealed that the remains of bones and teeth were of human 4 beings, and the blood stains taken from the edge of the bed of the deceased belonged to the female gender. The accused was also taken to the justice of peace one Matrona Francis Luanda, where he confessed again to having caused the deceased’s death. Consequently, the accused was arraigned in court on murder charges that he is presently facing. When called to answer his charge, the accused pleaded not guilty, prompting the prosecution to parade fourteen (14) witnesses and ten (10) exhibits to prove its case. In contrast, the accused fended for himself and had no witnesses to call or exhibits to tender. Yasinta Peter PSA, Mwasiti Athumani SSA, and Ashura Mzava Abdul SSA led the prosecution team. At the same time, Mohamedi Majaliwa, Zidadi Mikidadi, Fatuma Joachim Kamuli, and Fatuma Abdul Adv, all learned advocates, handled the defense on different occasions during the trial. However, on 12 November 2024, the accused prayed before the court that he withdrew instructions from his advocates. Thus, the court 5 discharged them accordingly. Ms. Hilda Joseph Mushi, a learned advocate, represented him instead. After the closure of the defense case, both parties indicated their willingness to file their closing submission, the prayer which was cordially granted. Nevertheless, I do not intend to reproduce the entire set of evidence of the parties or the submissions in determining this case. I shall only refer to them here and there where need be. I have cautiously scrutinized the evidence adduced by both parties and the counsel’s submissions on the prosecution case's strengths and weaknesses. The main issue for determination is whether the prosecution has proved the charge against the accused to the hilt. Before venturing into determining the issue above, I find it apt to revisit the principal governing criminal cases briefly. Indeed, it is trite law under sections 110(1) and (2) and 112 of the Evidence Act, Cap. 6 R.E 2022, that he who alleges must prove, and the burden of so proving lies on the person who 6 alleges. See the cases of Issa Mwanjiku @ White vs Republic, Criminal Appeal No. 175 of 2018 (Unreported); Nathaniel Alphonce Mapunda and Benjamin Mapunda Vs. R [2006] TLR 395 and Zombo Rashid vs. R, Criminal Appeal No. 7 of 2012 (CAT-unreported). It is also worth noting that, in all criminal matters, the standard of proof is beyond reasonable doubt as provided for under section 3(2)(a) of the Evidence Act [Cap. 6 R.E 2022] since conviction cannot be grounded on mere suspicion. The standard was also considered in the case of Nathaniel Alphonce Mapunda and Another vs. R (supra) when the Court observed thus: “i) As is well known, in a criminal trial, the burden of proof always lies with the prosecution. Indeed, in the case of MOHAMED SAID V R, this Court reiterated the principle by stating that in a murder charge, the burden of proof is always on the prosecution, and the proof has to 7 be beyond reasonable doubt. (ii) Where circumstantial evidence is relied on, the principle has always been that facts from which an inference of guilt is drawn must be proved beyond reasonable doubt. (iii) In criminal charge, suspicion alone, however grave it may be, is not enough to sustain a conviction, all the more so, in a serious charge of murder”. In so far as the standard of proof “beyond a reasonable doubt” is concerned, it does not mean beyond the shadow of doubt but a relatively high degree of probability, as it was held in the case of Miller V Minister of Pensions [1947] ALL ER 372 – 373. Speaking through Lord Denning on the degree of proof in criminal cases, the Court observed: "That degree is well settled. It does not need to reach certainty but must carry a high degree of probability. Proof of beyond 14 15 8 reasonable doubts does not mean beyond the shadow of doubt...” Based on the above-cited authorities, this Court is duty- bound to asses whether the evidence presented by the prosecution proves that the accused is alone responsible for committing the offense, as per the charge laid against him. As reiterated earlier, the accused person is charged with murder, whose ingredients are traced from section 196 of the Penal Code [Cap. 16 R.E 2022]. The section provides thus; “Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.” From the above provision of the law, it is apparent that, for the prosecution to prove the murder charge, three elements must be established. One, whether the person claimed to have been killed is dead and their death is unnatural. Two, whether the accused person is responsible for such death, and three, whether the alleged murder was actuated with malice aforethought. Given these ingredients, I shall analyze and apply 9 evidence adduced on each element in detail to see if the prosecution successfully discharged its duty. To start with the first element, the issue is whether Naomi Orest Marijani is dead, and if yes, whether she died of unnatural death. This issue will be addressed in its peculiarity based on the circumstances of the case because the body of the deceased was not found; thus, no postmortem was conducted to prove the cause of death, and none of the prosecution witnesses witnessed the commission of a crime. In his evidence and submissions, the accused stressed on this point that his wife is not dead since the cause of death is not proven, as the prosecution did not tender a postmortem report. I wish to address his concern before answering the first issue. As the law stands, murder can be proved circumstantially even without a postmortem report or production of the deceased’s body. This principle was articulated in the case of Mathias Bundala vs. Republic, Criminal Appeal No 62 of 2004 CAT (unreported), where the court of appeal had this to say; 10 “... it is not the requirement of the law that the cause of death must be established in every murder case. We are aware of the practice that death may be proved by circumstantial evidence even without the production of the body of the alleged dead person…It goes without saying, therefore, that it is now established law that a homicide can be satisfactorily proved without first establishing the cause of death.” In Said Bakari Vs. R, Criminal Appeal No. 422 of 2013, cited by the Court of Appeal in the case of Sikujua Idd vs. Republic, Criminal Appeal No. 484 of 2019 (unreported), it was stated that: "It is established law that a charge of murder can be fully proved by circumstantial evidence. In determining a case centered on circumstantial evidence, the proper approach by a trial court and an appellate court is to 11 critically consider and weigh all the circumstances established by the evidence in their totality and not to dissect and consider it piecemeal or in Cubicles of evidence or circumstances.” Similarly, this issue has also been settled in other jurisdictions like India. In the case of Mani Kumar Thapa v. State of Sikkim, AIR 2002 SC 2920, the Court held that; “in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti, in some cases, may not be able to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without any trace; therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many cases, the accused would manage to see that the dead body is destroyed to such an extent which would afford the accused complete immunity from being held guilty or from being punished. What is, therefore, required in law to base a conviction for an offense of murder is that there should be reliable 12 and plausible evidence that the offense of murder, like any other factum of death, was committed, and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced”. Guided by the principles in the above authorities, it is apparent that murder can be proved even without the production of the body. It should be underscored that insisting on having a postmortem and body will have two repercussions in the criminal justice system. One is that killing and destroying the body will be a complete immunity for murderers from being guilty or punished. Two, many homicides will be unresolved for masking the murderers. Therefore, the defense counsel's assertions lack legal basis. Reverting to the first issue raised, it was the evidence of Salama Haji Jecha (PW1), retired police officer, E. 7870 D/Sgnt Audifasi (PW2), that the accused reported at the police stations about the missing wife, Naomi Orest Marijan. A similar report was also conveyed to Robert Richard Mchome (PW3), Naomi’s uncle. At the police stations, the accused was given RB No. 13 234/19 and Case file No. KGD/RB/38/87 with IR No. KGD/IR/37/17/2019 was opened. According to PW5, while interrogated about the missing of his wife, the accused confessed to having killed her. It is also the evidence of Adeltus Respicious (PW4), the accused’s nephew, that in the presence of the chairperson, ten cell leader, and police officers, the accused confessed before them that he killed his wife and burnt her with two sacks of charcoal. More so, PW5, Inspector William Christopher, PW8 Kitwana Juma Mkwewa, PW10 A/Inspector George, PW13 F5818 D/SGT Samwel, and PW14XE1141/D/SGT Mkombozi witnessed the remains of the deceased, which were burnt to ashes. Further, as per the evidence of PW10, PF 22059 A/Inspector George, he collected blood samples in the deceased’s room and the remains of the bones and teeth at Malogoro farm in which, as per exhibit PE7, Government Chemist report, the said samples belong to female gender. As to who was that female gender, the accused, in his caution statement, which will be discussed extensively later, admitted that it was his wife’s remains. He said Naomi's body was burnt into ashes, and the 14 accused led to the discovery of the ashes remains of the dead body. Other incriminating articles, such as burnt bones, teeth, and soil with human oils, were recovered from the Malogoro farm where the banana tree was planted. That aside, going by the credible evidence of PW12, the blood sample collected by PW10 from the deceased bedroom and at the edge of the bed belonged to the female gender. According to DW1’s caution statement, the same was the deceased’s blood. Thus, applying the principle explained in the above authorities to the facts and circumstances in this case, there is no doubt that Naomi Orest Marijani is dead, and she died an unnatural death. About the second element, the issue is whether the accused person before this court is responsible for the death of his wife, Naomi Orest Marijani. As alluded to above, from the evidence advanced by the prosecution in court, none of the 14 witnesses testified to have seen the accused person killing the deceased. Thus, the case depends purely on circumstantial evidence and confession of the accused person in 15 exhibit PE1 as tendered by PW5, PF 24773 Inspector William, and extrajudicial statement in exhibit PE2 tendered by PW6 Matrina Francis Luanda. More or so, the accused made an oral confession before (PW4), the accused’s nephew. I will start with the accused’s caution statement, which was admitted in court without objection to its voluntariness. It is a trite law that the confessional statement is the best evidence because it comes from an accused who admits to having committed the offense. Nevertheless, the same must be voluntary and must provide a valid account. See the case of Muganyizi Peter Michael and Others vs. The Republic, Criminal Appeal No. 144 of 2020. Further, in the case of Joseph Stephen Kimaro and Another vs. Republic, Criminal Appeal No. 340 of 2015 (CAT-Unreported), the apex court had this to say; “...We take it to be trite law that for a confessional statement to be proof of the commission of an offense by its maker, it must not only have been 16 made freely and voluntarily but also be nothing but true.” In Flano Alphonce Masalu @ Sing and Others vs The Republic, Criminal Appeal No. 366 of 2018(CAT-Unreported), the court categorically stated that the court can rely solely on the accused's confession to convict. For clarity, the court held; “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 delighted that the confession cannot be but true.” With that knowledge in mind, it is now appropriate to evaluate the weight of Exhibit PE1-caution statement of the accused, as admissibility is one thing, and the weight attached to the exhibit is another. I had time to peruse exhibit PE1 to see whether the same shade light on the second issue. For lucidity of what the accused confessed, part of his statement is quoted here under: - “...hivyo tarehe 14/05/2019 mimi nililala nyumbani kwa MAGRETI kulikokucha asubuhi majira ya saa 17 07:00 ndio mimi nilirudi nyumbani kwangu hio ni tarehe 15/5/2019 nilivyorudi nyumbani nilumkuta mke wangu NAOMI anamuandaa mtoto wetu kwenda shule, hivyo mimi nilimpita tu na kuingia ndani na mtoto alichukuliwa na pikipiki kwenda shuleni ...Baada ya mtoto wetu kwenda shule simu yangu iliita kwa jina la mwanamke huyo Magreth hivyo alivyoona hivyo alianza kunitukana mimi nilimwambia wewe chukua unachokitaka uondoke kwani hakuna ndoa tena hapa muda wote wa miaka miwili mimi na wewe tunalala kila mtu kitanda na chumba chake hunijui na mimi sikujui kwa hio sioni sababu ya kurumbana hivyo ugomvi wa kutukanana ukawa mkubwa hapo ndani kwetu, na hapakuwa na mtu yeyote, wakati huo mimi sikuwa nimevua nguo ambazo nimekuja nazo na yeye alikuwa amevaa nguo ya ndani na kanga mbili hivyo tulianza kupigana, na nyumba yetu ina kigorofa chumba changu kipo juu chake kipo chini hivyo ili kufika chumbani kwangu lazima kupitia chumbani kwake hivyo ugomvi huo ulitokea chumbani kwake, hivyo tulipigana kwa ngumi bila silaha ya aina yeyote. ... huyo mwanamke alikuja na kunivuta mapumbu hivyo mimi niliamua kumsukumia na kudondokea kichwa kwenye mlango wa chooni na baadae 18 alijipiga chini akawa anatoka damu nyingi puani na mdomoni, wakati anaendelea kugaragara akawa anasema Mungu amsamehe na hakunyanyuka pale chini alianza kukoroma na baadae alifariki dunia hapo hapo....nilikwenda kufunga geti la nje ili kufikiria cha kufanya, jambo la kwanza ni kujua wapi nitaupeleka mwili wa marehemu na namna ya kutoa taarifa ya tukio hili kwa ndugu na familia...Nikajiuliza maswali mengi kama nitambeba kwenye gari huu mwili nikikutana na trafiki njiani sina cha kusema au nikiutoa usiku kama ninakutana na askari wa doria sina kitu cha kuwaeleza. Jambo lingine nikawa kuuzika hapo ndani nikaogopa watu wakija, kufukua wakapata ushahidi dhidi yangu hivyo nikaamua kuuchoma moto hapo nyumbani isipokuwa nisitumie kuni kwani zitakuwa nyingi Sana hivyo niliamua kutumia mkaa. Nikakumbuka kwenye banda la kuku nilikuwa nimechimba shimo kusudi maji machafu ambayo wanaoshea vyombo yaingie humo badala ya kusambaa hivyo nilichukua sululu na kwenda kongeza hilo shimo na pia nilihakikisha milango yote nimefunga kwa ndani mtu hawezi kuingia. Mara baada ya kumaliza kuandaa shimo niliingia ndani na kuukunja huo mwili kwenye mashuka 19 mawili kisha nikauburuza kupitia mlango wa jikoni hadi kwenye shimo hilo ukazama wote kichwa kikiwa juu kama amekaa. Hapo nilimpigia Thomasi kijana wa boda boda akaleta mafuta ya taa lita tano, nikampokelea hapo getini hakuingia ndani nilimpigia Adeliki akaleta magunia mawili ya mkaa nilimwambia achague mkaa mzuri alivyoleta nilimpokelea hapo getini na yeye hakuingia ndani. Nilivyo kwisha kamilisha vyote ndio mlianza kuuchoma mwili kwa moto Nilitumia pia viatu vibovu ambavyo vilikuwa nje kwani nikiweka mafuta ya taa mafuta yana waka mara moja ila viatu vinachukua muda hivyo vilisaidia Sana hata moshi uiikuwa unatoka ule wa viatu na hakuna harufu kutokana na viatu hivyo baada ya moto kuendelea kuwaka nilikaa kwenye kibanda changu ikawa naenda kuongeza mkaa na kuugeuza mwili kusaidia uweze kuungua vizuri Hakuna mtu yeyote ambaye mimi nilisaidiana nae maana moyo wangu ulikufa ganzi nikajua hili la kwangu mwenyewe ndio maana nilichoma kutokuwa na ushahidi popote na nilichimba shimo kusudi moto huo usisambae na kuungua kiurahisi Nina kumbuka kwani kama saa 11 ndio mlianza kuchoma hadi mwanagu anarudishwa kutoka shuleni bado nilikuwa na 20 choma hapo tayari kila kitu kimekwisha ni moto tu kuzimika... hadi saa 15:00 au kumi kila kitu kimekwisha bado vichenga chenga vya mkaa... Tarehe 16/05/2019 saa 06:00 nilichota majivu na kupakia kwenye gari kupelekea kutupa shambani kwetu ambapo nilibeba kwenye kiroba ambacho kilikuwa nyumbani kimeisha unga. Hivyo mimi kwenda hadi shambani kwetu mbele ya Mwasonga vyote nilibeba kwenye gari yangu aina ya Subaru.Nilivyofika hapo shambani nilichimba shimo la mgomba nikamimina yale majivu halafu nilipanda mgomba, na mgomba mwingine sikupanda kwa hayo majivu, baada ya kumaliza nilirudi nyumbani. Niliamua kuchota hayo majivu kupeleka shambani kwani nilijua kwamba kama majivu hayo yatakutwa pale yatachunguzwa japo nilipeleka huko lakini vipande vya mabaki haviwezi kukosekana lile shimo ambapo nilimchomea Naomi pale nyumba nililichimba zaidi na kujaza kifusi na mafundi wangu ndio walioendeleza pakiwa hakuna mabaki na baadae mimi nilijaza kifusi na kupiga floor na huwezi kulifahamu hilo eneo tena. Wakati mwili wa Naomi unaendelea kuungua nilichukua line za Naomi na kuweka kwenye simu yangu na kujitumia sms kwenye simu yangu kuwa naenda nje ya nchi 21 hutaniona tena, wala kupatikana kwa line hii na nikasema endelea kubaki na vimalaya vyako meseji ambayo nilituma kwa ndugu zake kuonesha nimetumiwa na Naomi jambo ambalo nilikuwa najihami kwa ndugu na mkono wa sheria… Tarehe 17/05/2019 mimi nikiwa hapo nyumbani nilichukua line nyingine ya Naomi nikajitumia sms tena kwamba niwe responsible kulea mtoto,... Jumamosi tarehe 18/5/2019 natumaini ndio nilienda kutoa taarifa kituo cha Polisi pia kwa ndugu zake hivyo polisi walinipa RB wao kuendelea na uchunguzi mimi taarifa hiyo mlitoa kituo cha Kigamboni isipokuwa ndugu wa Marehemu wao walienda kutoa taarifa huko Temeke.Kwa muda wote huo sikuwahi kusema ukweli huu hadi leo hii tarehe 16/07/2019 nikiwa kituo cha Polisi cha Centro ndio nimeamua kutoa ukweli huu juu ya kifo cha Naomi na kwamba hadi muda huu mimi nipo tayari kuwapeleka nyumbani kwangu Kigamboni kuonesha sehemu ambayo nimemchomea pia kuwapelekea huko shambani kwetu kuonesha sehemu ambayo mimi mlimwaga majivu ya Naomi ambaye nilimua kutokana na ugomvi huo ambao hata wazazi walikuwa wanafahamu migogoro yetu kwenye mapenzi”. 22 Looking at the above excerpt quoted in extenso, the same reveals that the accused person gave detailed information on what transpired from 14/05/2019 till 16/07/2019 when he confessed to having killed his wife. I so hold as the said confession is so thorough and elaborative that it provides a narrative of the accused personal facts as well as the sequence of events leading to the killing of the deceased. The narration is so comprehensive, ranging from his family background up to the time he executed the said death, which no other person except the perpetrator of the crime would have known. Indeed, the statement contained nothing but truth and trustworthiness. It is a trite law that the best witness in any criminal trial is an accused person who freely confesses his guilt. See the case of Mohamed Haruna Mutupeni & Another vs R, Criminal Appeal No. 259 of 2007 [2010] TCA 141 and Paulo Maduka and four Others vs. Republic; Criminal Appeal No. 110 of 2007 (CAT- Unreported). 23 Moreover, the caution statement is corroborated by the evidence of PW12, Hadija Said Mrea, government chemist from the chief government chemist’s laboratory, that the bones' remains were burnt to ashes and charcoal-like, thus making it impossible to extract comparing DNA tests. Again, the same is corroborated by the evidence of PW5, PW8, PW10, PW13, and PW14, who were present at Malogoro farm and witnessed the discovery of the remains of the deceased person: bones, soil with human oil, and ashes and teeth. More or so, the same is corroborated by the evidence of PW4, who was instructed by the accused to dig a pit at the chicken hut, bring charcoal, and leave it at the outside gate, and after some days, found the pieces of clothes remained at the place. On top of that, the said caution statement is corroborated by the evidence of PW10, a police officer from RCO’s Dar es Salaam, who testified that on 16/07/2019, the suspect led them to the bedroom where the deceased used to sleep, whereby they found blood stains at the edge of the bed, the blood which was 24 confirmed by PW12, to be human blood of the female gender. Furthermore, the same confession is corroborated by the evidence of PW9 H. 5229 Sargent Mtakula, who investigated the mobile phones and sim cards and found that it was the accused who sent text messages using the deceased’s sim card, purporting to be sent by the deceased that she had left the country. So, he should be responsible for taking care of their daughter. Another set of confessions by the accused person is his oral confession; this is per the evidence of PW4, the accused’s nephew, who testified that, on 15/07/2019, while at the accused’s home, the accused confessed before him, and in the presence of the ten cell leader, street chairman, and police officer, that he killed the deceased and burnt her to ashes by using two sacks of charcoal, and moved the said ashes to his farm at Malogoro, where he used the same to plant banana tree. It is a trite law that a confession found to be true can corroborate another confession against its maker. See the case 25 of Mboje Mawe and 3 Others vs R, Criminal Appeal No. 86 of 2010 (CAT-unreported). Given that the accused’s caution statement in exhibit PE1 is corroborated by his oral confession before PW4. Similarly, another set of confessions by the accused comes from his extra-judicial statement before the justice of the peace (PW6) in exhibit PE2. Such an exhibit was admitted in Court with the objection that it does not bear the date when the suspect was arrested, where he slept before being brought to court, and where he was arrested. Undoubtedly, the recording of the extra- judicial statement is regulated by the Chief Justices' instructions, which contain detailed aspects that must be complied with before the extra-judicial statement is recorded. The details include One, the time and place of arrest; two, the place the suspect slept before the date the accused was taken to the Justice of the Peace; three if he was made aware that the contents of the statement may be applied as evidence at the trial; and four, whether he wishes to make the statement on his 26 own free will. The crux of complying with these instructions was underscored in different cases, including the case of Petro Teopha vs R, Criminal Appeal No. 58 of 2012, Japhet Thadei Msigwa vs R, Criminal Appeal No. 36 of 2008, for instance, in the case of Japhet Msigwa, the Court observed. “We think the need to observe the Chief Justice's instructions is twofold. One, if the suspect decides to give such a statement, he should be aware of the implications involved. Two, it will enable the trial court to know the surrounding circumstances under which the statement was taken and decide whether or not it was given voluntarily". Upon careful perusal of exhibit PE2, the same suggests that PW6, who recorded the extra-judicial statement, complied with CJ's instructions. The statement indicates that the accused slept at the central police station when he confessed to having killed his wife. As to the date of arrest, the same is also indicated on the statement that he was arrested on 15/07/2019. Thus, the objection the defence side raised had no merit and was overruled. 27 Having so found, I also scrutinized exhibit PE2, in which the accused narrated the whole story of how he killed the deceased and burnt her body before he reported to the police, pretending that his wife was missing. The story contained in Exhibit PE2, the extrajudicial statement, reassembles Exhibit PE1, the accused’s caution statement. Therefore, it also corroborates evidence in Exhibit PE1, the accused’s caution statement and his oral confession. In his defence (DW1), the accused denied any involvement in the prosecution’s accusation against him that he killed the deceased, Naomi Orest Marijani. However, he admitted to having recorded the statements in exhibits PE1 and PE2, claiming that he told lies in those statements to avoid torture from police officers. Thus, he recalled that he once bought a farm with a cemetery at Muongozo in which he transferred the bone's remains to his farm at Malogoro, burnt the bones and other animals' bones, and used the ashes to plant a banana tree. Therefore, to avoid torture, he took police officers to Malogoro farm and deceived them that the 28 ashes were the remains of his wife. He maintained that his wife went missing due to the fight they had on 15/05/2019 due to the sour relationship they had in their marriage. When cross- examined by the prosecution whether he recorded his statements, he admitted and clarified that he was not forced to do so but insisted he told lies. He also revealed several details from the background found in his statement. What is discerned from the accused’s defence is that he is trying to retract his confession on the ground that it was obtained involuntarily. Nevertheless, the legal stance is that if the accused intends to object to the admissibility of a statement/confession, he must do so before it is admitted and not during cross- examination or defence hearing. Because of this stance, confession or statement will be presumed to have been voluntarily made until objection to it is taken by the defence on the ground that it was either not voluntarily made or not made at all. See the cases of Twaha Ali and 5 Others Vs. R, Criminal Appeal No. 78 of 2004, Paul Maduka and 4 Others Vs. R, Criminal Appeal No. 29 110 of 2007, Sulemani Hassani Vs. R, Criminal Appeal No 364 of 2008 and Nyerere Nyague Vs. R, Criminal Appeal No. 67 of 2010 (All CAT unreported). For instance, in Criminal Appeal No. 134 Of 2012 between Hassan Mohamedi Ngoya vs Republic, the court emphasized that; “At any rate, we may as well point out here that objection regarding the voluntariness or otherwise of the cautioned statement should not be raised at this stage. We say so because objection, if any, ought to have been canvassed at the trial by invoking the provisions of section 169(1) of the Criminal Procedure Act (CAP 20 R.E.2002). If that had been done, the prosecution side would have been called upon to discharge its burden of satisfying the court that the statement should be admitted in evidence in subsection (3) thereto. In the absence of such objection, and consequently a discharge of the burden by the prosecution thereto, it follows that it is too late in the day to raise the point at this stage of the appeal process”. In this case, since the accused person did not object to the voluntariness of the statement against exhibit PE1 before its 30 admission, on the strength of the above authorities, I find his attempt to retract it during his defence on the ground that it was obtained under torture a mere afterthought. This profound analysis and reasoning also apply to the extrajudicial statement in exhibit PE2 before PW6. The contention that exhibits PE1 and PE2 contain lies is also unfounded, and an afterthought. I believe the exhibits contain nothing but the truth. The reason I so hold is not far-fetched. First, the statements are so detailed and elaborate on the sequence of events on how the commission of the crime occurred, starting from family background, their marriage dispute, the killing of his wife, reporting of missing his wife, and confessions of the murder. Second, in his defence and cross- examination, the accused still admits several details from his statements, such as the fight on 15/05/2019, the sour relationship they had in marriage and his family members. Third, in his defence, he admits that the remains found on his farm were human being remains, but he could not establish 31 which was that human being. As per the Chemist's report (exhibit, PE7) the bones and teeth belong to the female gender; as to who is the female gender, the accused, in his confession and extrajudicial statement, confessed that the same belongs to his deceased wife. Besides that, the accused admitted having been found with phones and a deceased sim card, which were seized by PW11, A/Inspector Katabazi at Temeke Police Station and admitted in court as Exhibit PE4 (a) and (b). PW5 from the Cyber Crime Unit analysed the mobile phones and sim cards and prepared a report in Exhibit PE5, in which the same reveals that on the evening of 15/05/2019, the accused’s handset was used to communicate in the exact location using two mobile phone numbers; one of the deceased and another of the accused person bearing numbers 0714812530 and 0655527203. Such evidence is also contained in the accused’s confession and extrajudicial statements. As per the credible evidence of PW7 Jenipher Clement Lema, Investigation Intelligent specialist from MIC Tanzania, 32 who conducted Know Your Customer (KYC) of the aforementioned mobile phone numbers, the phone number 0655527203 was registered in the name of Naomi Orest Marijani, the deceased, on 29/08/2018. In contrast, Mobile Phone Number 0714812530 was registered in the name of Hamis Savrh. Of significance, during the defence hearing, the accused admitted to having been found with those items without explaining how they came into his possession while the deceased was abroad. It is undisputed that the accused is not supposed to prove his innocence in criminal trials. Still, under the circumstances of this case, the accused was expected to give a thorough explanation regarding his communication with the deceased while in the exact location and reporting that the deceased was missing. Without such an explanation, the only irresistible inference to be drawn is that the accused told lies about the missing of his wife and told the truth in his statements in exhibits PE1 and PE2 that he killed his wife. 33 Apart from that, as rightly submitted by the prosecution, the accused was the last person to be seen with the deceased; thus, he had a duty to explain her whereabouts. In the case of Mark Kasmiri Vs R, Criminal Appeal No. 39 of 2017, it was held that an accused person, before convicting on circumstantial evidence, must be the last person to be seen with the deceased. In the absence of a plausible explanation to explain the circumstances leading to death, he will be presumed to be the killer. It is an undisputed fact that the accused person was living with the deceased as his wife, and he admits that the last time he saw her was on 15/05/2019, when they fought. When asked about his wife’s whereabouts, he said that she had travelled outside the country, and even in court, he was trying to impress upon the court that his wife was missing. However, he volunteered to lead PW7, PW8, PW10, PW13 and PW14, where the remains of his wife were irrespectively dumped in a banana pit at Malogoro village on his farm. All those circumstances prove 34 that the human remains around the Malogoro farm belong to the deceased, Naomi Orest Marijani. Undoubtedly, this evidence meets the standard in the case of Samson Matiga vs Republic, Criminal Appeal No. 205 of 2007, as the prosecution evidence is robust, leaving no doubt about the accused person's liability; it irresistibly points a finger of guilt to the accused person. Having said so, the second issue is answered in the affirmative, and I so find. Lastly is the third element as to whether the killing of Naomi Orest Marijani was actuated with malice aforethought. What amounts to malice afore thought is defined by the law under Section 200 of the Penal Code [CAP 16 R.E 2022]. The same reads: “Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or 35 grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years”. The provision above illustrates what amounts to malice aforethought, including the accused’s intention to cause death or grievous harm to a person, whether such person is dead or not. See also the cases of Florence Mwarabu Vs. R, Criminal Appeal No. 129 of 2003, (CAT-unreported) and Mohamed Said Matula Vs. R [1995] TLR 3. There are various factors to be considered in determining whether the accused kills with malice or not, as demonstrated in several cases. For instance, in the case of Enock Kipela Vs. R, Criminal Appeal No. 150 of 1994 (CAT-unreported), the Court of Appeal had this to say: "...usually, an attacker will not declare his intention to cause death or grievous bodily harm. 36 Whether or not he had that intention must be ascertained from various factors, including the following: (1) the type and size of the weapon, if any, used in the attack, (2) the amount of force applied in the assault, (3) the part or parts of the body the blow were directed at or inflicted on, (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose, (5) the kind of injuries inflicted, (6) the attacker's utterances, if any, made before, during or after the killing, and (7) the conduct of the attacker before and after the killing. " Applying the above legal position in the instance case, it is apparent that the motive can be deducted from the lifestyle the accused person was living with the deceased and the conduct of the accused after committing the crime. There is no doubt the accused person’s act of pushing her wife to the edge of the bed 37 and the toilet door, leaving her bleeding to death, and the act of burning the deceased’s body to ashes, the ashes of which were later transferred to Malogoro in his farm and irrespectively dumped in banana pit, hoping that the act will never be discovered at all to get away with murder makes this court believe that the accused intended to kill the deceased. As per the evidence of PW4 and PW8, the pit and the charcoal were pre-prepared before the execution of the said death, and later on, the pit was covered with cement floor. The accused’s conduct raised the issue of his mental status; thus, on 06/09/2023, the accused counsel, Mr Majaliwa Mohamed Majaliwa, addressed the court under section 219 (1) & (2) of CPA [Cap 20 R.E 2022] that they would raise the defence of insanity. The accused was committed to Isanga for a mental examination. The report dated 26th September 2024 was filed in court. However, the analysis of the said report and the conclusion were incompatible. The said report concluded that the accused was insane at the time of committing the offence. In 38 contrast, the analysis suggests that the accused was sane. To clear the air, the prosecution invited the court to call Dr Sadick Mrisho Mandari, a medical doctor at Mirembe Mental Hospital and the director of medical services, as the court’s witness so they could cross-examine him and clarify his report. Shockingly, he came up with another report on the same date with the same analysis but a different conclusion that the accused was sane at the time of the commission of the crime. It is also on court records of 12/11/2024 that the accused person complained that he was forced to be taken to the mental medical Hospital while he was not ready and not insane. And in his defence, he never used the defence of insanity. In view that the accused chose not to use insanity as his defence, I am satisfied that he was sane at the time of committing the crime, as exhibit PE10 suggests. Further, the same report is compatible in its findings, analysis, and conclusion. Furtherance to that, in the two reports, the accused admitted to the medical Dr. that he killed his wife. 39 Such horrible and inhuman conduct of the accused is a manifestation and proof that the accused intended to cause death. There was no justification whatsoever for cremating his wife after he had killed her. Indeed, such behaviour and conduct are intolerable in a civilised society like ours and should not be condoned. With all these facts and analysis combined, I find conclusive evidence and proof that the accused killed his wife with malice aforethought. Thus, the prosecution also proved the third element beyond reasonable doubt. With the three elements established, I find the prosecution proved the murder charge against the accused person beyond reasonable doubt. Eventually, I find the accused person guilty of murder contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E 2019], now R.E 2022, and proceed to convict him accordingly. MWANGA J JUDGE 26/02/2025 40 SENTENCE As this is a murder case, my hands are tied by my oath of office to uphold the Constitution and to respect the laws of the land. In our law on criminal offences, there is only one penalty for the offence of murder, and that is death by hanging. On the premise that this Court has entered a conviction against the accused, I hereby sentence the said accused person, HAMIS SAID LUWONGO@MESHACK, to suffer death by hanging until he dies. H.R MWANGA JUDGE 26/02/2025 The right of appeal is explained to the accused person. H.R. MWANGA JUDGE 26/02/2025 41 COURT: Judgment delivered at Dar es Salaam this 26th February 2025 in the presence of Yasinta Peter and Ashura Mnzava, State Attorneys for the Republic, and Precious Ahmad Hassan, holding the brief of Hilda Mushi, Advocate for the accused person. H.R. MWANGA JUDGE 26/02/2025 42