final ERASTO GABRIEL MOLLEL Tanzilii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI CRIMINAL SESSIONS CASE NO. 3382 OF 2024 THE REPUBLIC VERSUS 1. ERASTO GABRIEL MOLLEL @ SAPAA 2. SAMWEL ABRAHAM MCHAKI JUDGMENT 26th February & 10th March, 2025. A.P. KILIMI, J.: The two accused persons namely ERASTO GABRIEL MOLLEL @ SAPAA and SAMWEL ABRAHAM MCHAKI, hereinafter first and second accused persons respectively, are jointly and together charged before this court for the offence of Murdering one Josephine Dismas Mngara contrary to sections 196 and 197 of the Penal Code Cap 16 R.E 2022, ‘the Penal code’. All accused persons pleaded not guilty to the charge, consequently the prosecution to prove this charge paraded 12 witnesses namely: Delnever Clif Sam (PW1); Samwel Nathanael Samu (PW2); Godfrey Ndesamburo Minja (PW3); Theodora William Msuya @ Mama Marta (PW4); Christopher Edward Marik (PW5); G1514 D/CPL Athuman (PW6); Patrick Amasi (PW7); 1 E 6548 D/SGT Rick (PW8); J.3632 PC John (PW9); G4525 D/CPL Ziadi ( PW10); E7657 D/SGT Hassan (PW 11) and LEONIDAS DANIEL MICHAEL (PW 12). Additionally, the prosecution caused the above witnesses to tender eight exhibits to wit Post mortem Examination Report of Unknown Person (PE1); Handing over certificate from CPL Ziadi to SGT Rick Dated 21/02/2023 (PE 2); Handing Certificate from CPL Ziadi to exhibit keeper SGT Rick dated 23/02/2023 (PE 3); Handing over certificate from SGT Rick to D/CPL Ziadi dated 14/3/2023 (PE 4); Exhibit Register (PE 5); Handing over certificate from CPL Ziadi to F.C John having listed samples dated 14/3/2023 (PE 6); Caution Statement of the first accused Erasto Gabriel Mollel @ Sapaa (PE.7), and Forensic DNA Test Profiling Report from Chief Chemist Laboratory concerning case file No. HIM/IR/544 of 2023 dated 21/04/2023 (PE8). Before I proceed on merit with above witnesses and exhibits, I find apposite to narrate briefly the sequence of events revealed by prosecution which led to the accused persons indictment for the above offence; it was on 19/2/2023 at 04:00 am one Delnever Clif Sam (PW1) being at her home saw the nearby house which is owned by Godfrey Minja (PW3) being on fire 2 , she phoned her neighbour named as Samwel Sam (PW2) and asked himto look on the incident, a few minutes later the said neighbour replied to her that it was true the house was on fire and they should go to the scene to put out the fire. They both attended the said house for such purpose, as they continued with the exercise, PW2 informed PW1 that he had seen something not normal in the burning house. PW1 phoned the Hamlet Chairman one Robert Mrema who responded and attended the place with other people, they saw something like human being burnt, then the said Hamlet Chairman called Police Officers who reached the area and collected suspected human bones using special bag and told those who attended to inform police if there would be anybody missing in the area. Police officers then sent the said suspected human remains to KCMC Hospital, after postmortem done by Pathologist it was revealed that they were bones of female human being. Then samples of those remains were extracted therefrom and given to police for DNA Profiling test. Later upon investigation police got information that there was a house which was about 100 meters away from the area where the said fire accident arose. The information revealed that in that house the first accused person 3 and one lady lived therein as husband and wife and since the fire incident their room was closed and the couple since then were not seen. After the said information Police gain suspicious and wanted to know what was inside the said house. They search one responsible as landlord of the house, they also succeeded to find the mother of lady who lived in that house as a wife of the first accused person one Theodora William Msuya (PW4) and the Chairperson of the area (Mtemboni Hamlet). Further police officers went with them and they showed them the said house. Police officers did break the door, upon entering therein they saw blood stains on the floor and on the wall also therein were irons bars, further outside they saw tree barks having clotted blood, then Police officers extracted blood samples therefrom. Thereafter deceased mother (PW4) was taken at Faraja Hospital and her blood sample was taken for DNA Profiling test. Later all samples collected from the house burnt, from the house which first accused person and deceased dwelled in and sample from deceased mother were sent to the Chief Government Chemist for DNA Profiling test, the results revealed that those samples related with the deceased mother. Thereafter Police officers managed to arrest the first 4 accused person, and upon interrogation he confessed to have killed the deceased at his home and mentioned the second accused person who assisted him to hide the said killing by burning the deceased body in a house which had nobody dwelling in. After such confession police officer also arrested the second accused and joined him to the charge of murder as alluded above. As depicted above the accused persons stand charged with offence of murder; in order to prove this offence, the prosecution has to prove two major elements, actual killing (actus reus) and malice aforethought (mens rea) which is the intention to cause death. The tenor and import of the wording of provision of section 196 of the penal code, Cap 16 R.E 2022 which establishes the offence irresistible me to be guided and check whether the following issues were proved by the prosecution in order the accused persons to be found guilty in this case. First, whether the deceased died unnaturally; Second, Whether the accused person caused the death of the deceased; and Third, If the answer in issue number two is in affirmative, Whether the accused had malice aforethought. 5 In proving the above, the legal standard which the prosecution has to meet is proving beyond reasonable doubt. (See section 3(2)(a) of the Evidence Act, Cap. 6 RE. 2022, Said Hemed vs Republic [1987] TLR 117, Magendo Paul & Another vs Republic [1993] T.L.R. 219, Nathaniel Alphonce Mapunda and Another vs Republic [2006] TLR 395 and Anthony Kinanila & Another vs Republic [2022] 356 (TANZLII) to mention a few. In the case of Magendo Paul & Another (supra) the court stated that; "For a case to be taken to have been proved beyond reasonable doubt, its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed." Starting with the first issue, according to the evidence no fresh deceased body was found to be send for normal postmortem examination, even the remains of body sent at KCMC Hospital were some parts of the human body severely burnt of an unidentified person as revealed in a postmortem report (PE 1). However, I am mindful it is not the requirement of the law that the cause of death must be established in every murder case. It is the practice that death may be proved by circumstantial evidence even 6 without the production of the body of the alleged dead person, thus it a trite law that a homicide can be satisfactorily proved without first establishing the cause of death. (See Mathias Bundala vs Republic, Criminal Appeal No 62 of 2004 CAT (unreported). From the above principle, it can be discerned that the facts showing that actually one Josephine Dismas Mngara was killed will be revealed in due course as per circumstantial evidence if any was established by prosecution side. In the second issue, there is no dispute according to the evidence neither any eye witness saw the killing of Josephine Dismas Mngara nor her fresh body lying dead as said above, according to the facts stated above the evidence of the prosecution relied on circumstantial evidence and the caution statement of the first accused person. I am alive that, it is settled law that in a case depending on circumstantial evidence, the court before deciding whether the accused is liable, must determine if the inculpatory facts are incompatible with his innocence and incapable of explanation upon any other reasonable hypothesis than that of guilty. (See, for instance, Magendo Paul & Another vs Republic [1993] TLR 219; and Hamidu Mussa Thimotheo 7 & Majidi Mussa Thimotheo vs Republic [1993] TLR 125; Samson Daniel vs R [1934] 1 EACA 154; Augustina Lodaru vs The Republic, Criminal Appeal No. 90 of 2013; Elisha Ndatange vs Republic, Criminal Appeal No. 51 of 1999; and Mathias Bundala vs Republic, Criminal Appeal No. 62 of 2004; Julius Justine and Others vs Republic, Criminal Appeal No. 155 of 2005 (Both unreported) to mention a few. The court in Julius Justine and Others vs Republic (supra) had this to say; "the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and no one else. " In analysing the circumstantial evidence tendered by the prosecution had two limbs, I wish to start with first limb as the caution statement of the first accused person, the same was tendered in this court by the investigator of this case one E7657 D/SGT Hassan PW 11, the accused person through 8 his advocate did not object it to be admitted, thus it was admitted in this court as PE 7. However, according to the question in cross examination to PW11, the first accused person’s advocate did not dispute the taking of the said caution statement but tried to established the same was written while the first accused person was drunk. He further insisted in his defence that he was arrested by police officers taking liquor and he failed to run due to the fact he was drunk, also when his advocate availed him to see PE 7 he maintained that he didn’t know that document and even the name did not belong to him. It seems he tried to discredit or object its admissibility using the back door. It is a trite law accused person intending to object to the admissibility of a statement, he must do so before it is admitted and not during cross- examination or defence hearing. The evidence on record shows the first accused person neither objected to the admission of exhibits PE7 nor subjected it to critical cross-examination on its content, in my settled view he cannot deny his admission on his defence since it is an afterthought. Therefore, 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. To fortify this 9 stance, I wish to refer the decision of the court in Vincent Homo vs Republic, Criminal Appeal No. 337 of 2017 the Court of Appeal referred its earlier decision of Emmanuel Lokay and Udagene Yatosha vs Republic, Criminal Appeal No. 278 of 2010 (both unreported) where it stated that; "It is trite law that if the accused person intends to object to the admissibility of a statement/confession he must do so before it is admitted and not during cross examination or during defence - Shihoze Seni and Another v. The R epublic (1992) T.L.R 330. In this case the appellants 'missed the boat' by trying to disown the statements at defence stage. That was already too late. Objections, if any, ought to have been taken before they were admitted in evidence. " Additionally, in Hassan Mohamedi Ngoya vs Republic (Criminal Appeal No. 134 of 2012) [2013] TZCA 307 (TANZLII) the Court of Appeal observed at page 6 as follows and I quote; “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 10 objection, if any, ought to have been canvassed at the trial by invoking the provisions of section 169(1) of the Crim inal P rocedure Act (CAP 20 R .E.2002). I f that had been done, the prosecution side w ould have been called upon to discharge its burden of satisfying the court that the statem ent should be adm itted in evidence in subsection (3) thereto. I n 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”. [ Emphasis added] (See also Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010, , Paul Maduka and 4 Others vs Republic, Criminal Appeal No. 110 of 2007, Sulemani Hassani vs Republic, Criminal Appeal No 364 of 2008 and Twaha Ali and 5 Others vs Republic, Criminal Appeal No. 78 of 2004 (All unreported). Be that as it may, the first accused person neither did prove by bringing any evidence that he was drunk at the time the said caution was written from him nor testify that the same was not taken from him. However, in 11 view of the above stated authorities, I am settled the first accused person endeavours to dispute the said caution statement were an afterthought, thus are disregarded forthwith. Therefore, since the said statement was admitted without objection to its voluntariness. I am settled it is enough in itself; this is because it is a trite law that the confessional statement is the best evidence because it comes from an accused who admits to commit the offense. (See the case of Muganyizi Peter Michael and Others vs Republic, Criminal Appeal No. 144 of 2020, and Joseph Stephen Kimaro and Another vs Republic, Criminal Appeal No. 340 of 2015 (both unreported), In Joseph Stephen Kimaro and Another (supra) the 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 made freely and voluntarily but also be nothing but true.” Subsequently, I have keenly considered the said caution statement PE4 the same reveals that the first accused person gave detailed information in respect to his family background, the relation between him and deceased, 12 how he killed the deceased, how he informed the second accused, events of moving the body to the burnt house, how was burnt inside the said house, and what action he took after being advised to disappear at his resident after the incident. And indeed, he was not seen at his resident where he dwelled with the deceased as husband and wife until he was arrested. In my view all he stated above could have not known by PW11 who took the statement except after being told by the first accused person himself. Having observed as above, I am satisfied the said caution statement of the first accused person contained nothing but the truth. The next limb is pure circumstantial evidence, according to the evidence of PW10 Detective Cpl. Ziadi on 19/2/2023 while was on duty at Himo police station Himo, received information from Hamlet chairperson of Mtemboni street that there was a house which was on fire. He and other police officers rushed to the scene of fire with inspecting equipment, he entered the room already burnt and collected remains of the body, he placed on the special bag and sent them to KCMC Hospital for examination. This act of collecting those remains was witnessed by PW1 and PW2 together with a group of villagers whom by then were gathered at the incident. Police told 13 the villagers to report if there would be anybody who is not seen after the said tragedy. PW10 being on investigation received information that one suspected to be the deceased was staying with the accused person in a house situated at Mtemboni street, then being accompanied by Cpl Isack paraded hamlet chairman of the said street, ten cell leader (PW1), the deceased’s mother one Theodora William Msuya @ Mama Marta (PW4) and a caretaker of the said house which the deceased and first accused stayed in. They both attended the said house which was locked, police officers did break the door, then PW10 being a Police Forensic Officer responsible for inspecting crime scene collected therein the remains of blood on wall, blood swab from the floor and outside of that building he collected tree barks having clotted blood, he labelled each as sample and sent to police station for safe custody. Then PW10 went with PW4 who introduced to be the mother of the deceased at Faraja Hospital and enabled taking her blood as sample for DNA profiling test to check whether she had a relation with the deceased from collected samples. 14 PW10 later on 23/2/2023 went to KCMC Hospital and requested for postmortem examination of the said remains he collected from the house burnt, the same was attended by a Pathologist Dr. Patrick Amsi (PW7), PW7 told this court that in his examination he discovered that the samples were remains of the body of the human being burnt to the point of being like charcoal, but he managed to see remains which are ;back of the head, remains of lungs, the heart, buttock tissues, pelvis parts and left hand bone having humerus and radius , on pelvis part he saw the remains female genital organs which was covered with clothes (khanga). He then took sample to be sent for DNA profiling test which are one molar tooth, hip bone and left humerus, he labelled them and handed to PW10. Also, PW7 filled a postmortem examination which was admitted in this court as PE1. PW10 then took all samples he collected from the house which was the resident of the first accused, sample of deceased mother PW4 and those received from Pathologist and handed both to J.3632 Constable John (PW9) who worked at Regional Forensic Bureau Office. PW9 testified in this court that he received instruction from his head of department to send the said samples to the Chief Government Chemist office at Dar-es-Salaam. On 14/3/2023 he prepared the said samples and moved with police motor 15 vehicle to the said office, on 15/3/2023 he handled samples to wit blood sample taken from deceased mother, blood swabbed from the wall of the said room, also blood sample swabbed from the floor of the same room, clotted blood from tree barks, left hand bones, one hip bone, and one molar tooth from the deceased body. He handed them to one Leonard Michael in that office. Thereafter one Leonidas Daniel Michael (PW12) a chemist grade one from Chief Government chemist told this court that he received the said samples and labelled A – Blood from deceased mother one Theodora William Msuya, B – Hip bone, C – Hand bone, D – Tooth (Molar), E – Blood swab taken from the floor, E1 – Blood swab taken from the wall, E2 – Blood swab taken from floor, E3 – swab from barks of tree having dry blood. He examined all blood samples that is A, E, E1, E2, and E3 and found that they were Human blood. Then he found sample A was related to sample E, E1, E2 and E3, and sample B related to sample C, D, E, E1, E2, E3 in that regard he concluded that those samples were related, he then tendered a Forensic DNA Test Profiling Report to that effect which was admitted as PE8. 16 I am mindful of the importance of documenting movement of exhibits from one point to another, thus the evidence concerning chain of custody is important to establish that what was seized from one point is the same which was finally tendered in court as said in the landmark case of Paulo Maduka and Four Others vs Republic, Criminal Appeal No. 110 of 2007 (unreported) which insisted that there must be proper documentation of the paper trail from the time of seizure up to the stage the exhibit is tendered in court as evidence. However, documentation is not the only way of establishing chain of custody. It is a position of the law for exhibits which cannot change hands easily, oral testimony on handling the exhibit suffices to establish the chain of custody. On the other hand, for exhibits that can change hands quickly, such as narcotic drugs and the like, the most accurate method to establish chain of custody is documentation, furthermore oral testimony is as well sufficient to establish the chain of custody depending on the circumstances. ( See Chukwudi Denis Okechukwu and Three Others vs Republic, Criminal Appeal No. 507 of 2015 [2018] TZCA 255 (TANZLII); Marceline Koivogui vs Republic, Criminal Appeal No. 469 of 2017 [2020] TZCA 252 (TANZLII) and Charo Said Kimilu and Another vs Republic, Criminal Appeal No. 111 of 2015 CAT (unreported). 17 I have considered the above evidence, collection of evidence from one point to another were very intact, the trail shows that those samples were sent to exhibit keeper E 6548 Sgt Rick (PW8) and later was taken by PW10 and sent to PW9 a forensic officer sent the same to Chief Government Chemist, handing over certificates were tendered and admitted in this court as PE2,PE3,PE4,PE5 and PE6 respectively, and all those samples taken from Hospitals, Medical Personnels who are Laboratory Technologist (PW5) and Pathologist (PW7) appeared in this court as witnesses and testified on how they handed the said samples to PW10 Detective Cpl Ziadi who also testified so in this court, thus in my considered view the same suffice to prove the chain of custody under the circumstances. In respect to the said DNA profiling report tendered, I am aware this is an expert opinion which it is the position of the law that higher standards of accuracy and objectivity are required of an expert in order to provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. (See Republic vs Kerstin Cameron [2003] TLR, 84) Furthermore in this case Kerstin Cameron (supra) at page 128 the Court stated and I quote; 18 “The duty of an expert is to furnish the court with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the court to form its ow n independent judgm ent by application of these criteria to the facts proven in evidence." [Emphasis is mine] (See also DPP vs Shida Manyama @ Seleman Mabuba (Criminal Appeal No. 285 of 2012) [2013] TZCA 168 (TANZLII). Therefore, from the above principle, expert evidence should enable the court to form its own independent judgment after considering its accuracy in relation to other facts proven in evidence. According to the evidence of PW10 who took samples from the crime scenes, I mean the house of the first accused person and deceased lastly resided, blood sample from deceased mother and sample extracted from remains found in the burnt house, thus since the conducted forensic DNA profiling test shows sample A which is a sample blood of deceased mother shows relationship with other sample B, C and D extracted from the deceased's remains, but also had relation with sample E, E1,E2 and E3 which 19 are blood sample swabbed from the said house the deceased and first accused dwelled in. I have keenly considered the said samples and where they were extracted, to wit from deceased mother and at the crime scene where the deceased lastly resided, I am of considered view the said DNA profiling test conducted confirms the deceased is none other than Josephine Dismas Mngara. Hence the above issue reserved that whether Josephine Dismas Mngara died is answered in affirmative and obvious under the circumstances the said death was unnatural. In his defence the first accused person basically based on the defence of alibi, he filed the notice to that effect before the date of his defence. I am aware that an accused person is not required to prove his alibi. It is sufficient for him if the alibi raised raises a reasonable doubt, taking regard the practice has been that the court would usually consider that defence whether it raises a reasonable doubt to affect the prosecution, even if the same was raised without notice. In Magige Marwa Mwita and 2 Others vs Republic (Criminal Appeal No. 621 of 2021) [2024] TZCA 994 (TANZLII) the court observed at page 9 that; “It is important in our view to distinguish between an alibi that is not preceded by a notice under section 194 of CPA, and that which is 20 preceded by a notice as in the instant case. In our view, where notice is given, the court should not be all too eager to dismiss the alibi for want of proof, but should evaluate it in line with the evidence for the prosecution before coming to conclusion.” According to the evidence the first accused person defence, he said that on the material day on 19/2/2023 he was at home Marangu Mamba with his brother known as Emmanuel Gabriel Mongi, being there they watched movie from 6:00 pm to 11:00 pm. And the following day they both attended the church service up to 2:00 pm then attended their neighbour’ s cerebration of inauguration of his house until 5:00 pm where they went back home and, in the evening, their usual watching movies continued. When cross examined by Mr. Kambarage learned state Attorney he said nothing about his relation with Josephine Dismas (deceased), he did refute to kill her, he did not refute to know one Theodore Msuya PW4 as his mother-in- law, he also said according to the distance from his home to Himo where the incident occurred was a about 2 and half hours away. His witness Emmanuel Gabriel Mongi (DW1) reiterated on how the first accused said on two days, that they were together and, in the evening, they watched movies up to 11:00 pm, for him when he was asked by Mr. 21 Kambarage SA he said one can travel to Himo and return to Marangu for one hour. I have considered the above evidence, since the first Accused person did not refute his relation with Josephine Dismas (deceased), whether he did kill her and he did not refute to know one Theodore Msuya PW4 as his mother-in-law. In my settled view the first accused person deemed to have admitted or rather acknowledged these facts which is against him. I am saying so because, although the above was not in cross examination on his part but since the main prosecution evidence dealt with establishing the killing of the deceased who lived with him as his wife and deceased mother (PW4) acknowledged that relation by evidence, any reasonable person could expect him to refute them in his defence, by saying nothing adverse inference to him is unescapable. (See Cyprian Athanas Kibogoyo vs Republic, Criminal Appeal No. 88 of 1992, Damian Luhehe vs Republic, Criminal Appeal No. 501 of 2007 and Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010 (all unreported). Second, both accused persons and his witness DW2 in their evidence left gaps which may be inferred that first accused person can move from his home at Marangu to Himo and return back to Marangu without DW2 knowing 22 the said movement. Therefore, it is my conclusion that his defence of alibi however it was with notice to this court, cannot hold water under the circumstances, thus is hereby rejected forthwith. Having analysed the evidence as above, I have taken into consideration first accused person confession in the caution statement taken as alluded above; second, the evidence of PW4 that first accused and deceased lived together as husband and wife; third, the blood found in their dwelling room shows something between them went fatally wrong; fourth, the conduct of the first accused person, he disappeared after the incident and neither himself or his wife (deceased) were seen at the said house immediately after the incident of house burnt. And fifth, the evidence of DNA Profiling test report which shows samples of blood swabbed from the house wherein first accused was living with the deceased as his wife which revealed related to the deceased mother (PW4). In my view, these facts stated above clearly draw adverse inference to the first accused hence connect him with the death of the victim. (See cases of Ali Bakari and Pili Bakari vs Republic, [1991] TLR 10; Simon Musoke vs Republic, (1958) EA 715). Julius Justine and Others vs 23 Republic, Criminal Appeal No 155 of 2005; and Obedi s/o Andrea vs Republic, Criminal Appeal No. 231 of 2005 (the last two unreported). Be that as it may, as alluded above when considering the first accused defence, he testified nothing about a lady he stayed with as his wife while the prosecution evidence above revealed that they lived together and after the fire incident she was never seen anywhere. Therefore, in my considered view the first accused person as a close person to the deceased has failed to give plausible explanation to exculpate from the offence charged. Thus, I am settled he cannot escape fingers pointed to him. (See Justine Hamis Juma Chamashine vs Republic (Criminal Appeal 669 of 2021) [2023] TZCA 214 (TANZLII). Therefore, for the above endeavours stated, I conclude and I am settled that the first accused person is responsible and actually caused the death of the deceased. In respect to the second accused person, the evidence implicating him with the offence charged is the confession statement of the first accused person. According to section 33 (2) of the Evidence Act Cap. 6 R.E.2022, conviction of an accused person cannot be solely based on a confession of a co-accused. 24 To appreciate the import of this provision, it behoves me to reproduce its substance, as hereunder: "Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co-accused.” The tenor and import of this section plentifully prohibit a conviction to be based solely on such confession unless it is corroborated. (See Ramadhan Salum vs Republic Criminal Appeal No. 5 of 2004 (unreported); Flano Alphonce Masalu @ Singu vs Republic (Criminal Appeal 366 of 2018) [2020] TZCA 197 (TANZLII) and Ndalahwa Shilanga & Another vs Republic (Criminal Appeal 247 of 2008) [2011] TZCA 159 (TANZLII) to mention a few. In Ndalahwa Shilanga & Another (supra) the court maintained the above and had this to say at page 18 and I quote; “It is true that Section 33 (1) allows a court to take into consideration the evidence of a co accused against another, but Section 33(2) of the same Act, prohibits a conviction to be based solely on such confession. This provision appears to have escaped the mind of the learned trial judge. So, corroboration of a 25 confession from a co- accused, is not just a matter of practice but a matter of law. This provision was enacted by an amendment to the Evidence Act by Act No. 19 of 1980, and thus overriding all case law, that had originally demanded such corroboration only as a matter of practice. Henceforth, a conviction of an accused person cannot rest solely on the confession of a co accused (See THADEO MLOMO AND OTHERS vs. R (1995) TLR. 187.” Now the next question I should ask myself, is whether the prosecution tendered any evidence to corroborate the said caution statement. In the same case of Ndalahwa Shilanga & Another (supra) the court at page 9 expounding what amounted to corroboration referred an English case of R vs BASKERVILLE (1916) 2KB 658 at 667 where Lord Reading had this to say and I quote: "Independent testimony which affect the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him that is, which confirms, in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it" 26 Being guided by the above law and authorities, I have entirely considered the remaining evidence, in my view there are none, and since it is a principle of law as stated above, that no conviction can be sustained without corroboration if it is based on evidence of co accused person, the facts that the above statement remained uncorroborated becomes inconsequential. Thus, I am settled in the circumstances the second accused person is not responsible to the causation of the death of Josephine Dismas Mngara. Consequently, I find the prosecution did not prove the offence charged against the second accused person to the required standard, and I proceed to acquit the second accused Samwel Abraham Mchaki for the offence of murder contrary to section 196 and 197 of the Penal Code. Back in respect to the first accused person, the next point to be considered is whether the accused persons did cause the death of deceased with malice aforethought. Malice aforethought is defined under section 200 of the Penal Code for clarity I quote hereunder; “Malice aforethought shall be deemed to be established by evidence proving any one nor more of the following circumstances- 27 (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) know ledge that the act or omission causing death w ill probably cause the death of or grievous harm to som e person, whether that person is the person actually killed or not although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) N/A [ Emphasis added] Expounding the above law the Court of Appeal in Enock Kipela vs The Republic [1999] TZCA 7 (TANZLII) set the guiding principles for ascertaining whether the person who caused the death did so with malice aforethought, at page 7 the Court stated as follows: - "Usually, an attacker will not declare his intention to cause death or grievous bodily harm, whether or not he had the intention 28 m ust be ascertained from various factors, including the following: (i) The type and size of weapon which was used in the attack leading to the death of the deceased; (ii) The am ount of force w hich w as used by the attacker in assaulting the deceased; (iii) The part or parts of the body of the deceased where the blow of the attacker were directed at or inflicted; (iv) The number of blows which were made by the attacker, although one blow may be enough depending of the nature and circumstances of each particular case; (v) The kind of injuries inflicted on the deceased's body; (vi) The utterances m ade by the attacker if any, during, before or after the incident of the attack". [ Emphasis is mine] In the instant case, according to the caution statement PE7 the first accused person took a hoe which was kept at the roof inside the room they lived in, he the used the said hoe to beat the victim, after he was satisfied the victim was dead he went out to look for his friend and told him that 29 already he had killed a person and lastly he moved the dead body from the scene of crime in order to hide his act. To echo what he confessed I reproduce them hereunder; “Swali: Je? Kweli umemuua Josephine? Jibu: Ndio nimemuua Josephine. Swali: Ulimuua kwa kutumia nini? Jibu: Nilimuua kwa kumpiga kwa mpini wa jembe. Swali: Hilo jembe ulilitoa wapi. Jibu: Jembe likiwa na mpini wake lilikuwa ndani chumbani kwetu Swali: Hilo jembe likiwa na mpini lilikuwa chumbani kwenu sehemu gani Jibu: Lilikuwa juu ya paa kwa ndani. Swali: Baada ya kumpiga hadi kumuua JOSEPHINE ulifanya nini? Jibu: Nilitoka hapo nyumbani na kwenda kwa KAAILA Swali: Huko kwa KAAILA ulifuata nini? Jibu: Nilienda mfuata mtu aitwae SAMWELI. Swali: Huyo SAMWELI ulimpata na ulitaka nini kwake? Jibu: Samweli nilipatana na nikamueleza kwamba tayari nimeshaua.” In my considered opinion of the above acts of the first accused person, shows that the first accused formed an intention to kill when he took the said hoe from the roof, and executed his intention by doing the above stated act of hitting the deceased. Therefore, in the final result and for the foregoing reasons, I am satisfied that the prosecution side has proved this 30 case against the first accused person to the required standard. I hereby therefore find the first accused person namely Erasto Gabriel Mollel @ Sapaa guilty for the offence of Murder contrary to section 196 and 197 of the Penal Code Cap. 16 R.E. 2022 and consequently I proceed to convict him for this offence charged forthwith. It is so ordered. DATED at MOSHI this 10th day March, 2025 X JUDGE Signed by: A. P. KILIMI SENTENCE I have considered brief remarks submitted to me during sentencing process by Mr. Kambarage Samson learned State Attorneys and Mr. Alfred Sindato learned counsel for the first accused person. It is a trite law conviction on the charged offence, the law provides death by hanging as the only punishment for murder. Therefore, in compliance with sections 26 (1) and 31 197 of the Penal Code Cap. 16 RE 2022, the convict namely ERASTO GABRIEL MOLLEL @ SAPAA is hereby sentenced to suffer death by hanging. It is so ordered. X JUDGE Signed by: A. P. KILIMI Court: - Judgment delivered this day on 10th March, 2025 in the presence of Mr. Kambarage Samson and Frank Ong’enga learned State Attorneys and Mr. Alfred Sindato and Ms. Lilian Mushi learned counsels for the defence, also the convict present. Sgd: A. P. KILIMI JUDGE 10/03/2025 Court: - Right of appeal explained. Sgd: A. P. KILIMI JUDGE 10/03/2025 32