Mwita Boniphace Nyantori

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB- REGISTRY AT TARIME) ORIGINAL JURISDICTION CRIMINAL SESSION CASE No. 44 OF 2023 (Referenced: 20230720000512579) THE REPUBLIC Versus 1. MWITA BONIPHACE @ NYANTORI 2. WAMBURA CHACHA @ WAKANGA JUDGMENT 04.12.2024 & 10.12.2024 Mtulya, J.: Mr. Matiko Ntencha Mwikwabe (the deceased), a Machoka Hamlet Chairman in Rung'abure Village of Serengeti District in Mara Region, was found expired facing downward with a bunch of wounds on different parts of his body, including the head. The body was spotted by villagers in morning hours of 20th September 2022 at Mnadani Area within Rung'abure Village in Serengeti District of Mara Region (the crime scene). The villagers who had witnessed the body at the crime scene had skreiched a yowe species of voice to summon other villagers to assemble at the crime scene and one of them was a neighbor to the crime scene and Rung'abure Village Chairman, Mr. Marwa Joseph Meng'anyi. Mr. Meng'anyi, who is also a chairman of village security i committee, had visited the crime scene, witnessed the deceased's body and assisted police officer H.90 D/Cpl. Faraja to sketch map of the crime scene. Following the incident, investigations procedures were mounted via two (2) authorities, namely the village security committee and police investigation team of Serengeti District. The committee then had learned from an informer who witnessed Ms. Bhoke Ikwabe and the deceased together at night hours of 19th September 2022 at Mtongori Nyagwisi Bar along Rung'abure-Mugumu main road within Serengeti District in Mara Region. Ms. Ikwabe was then summoned by the village security committee to explain on when, where and how she departed with the deceased at night hours of 19th September 2022. The three (3) indicated persons, Ms. Ikwabe, Mr. Meng'anyi and Mr. Faraja, were summoned by the prosecution to appear ad testify in this court on their knowledge in the death of the deceased and search of accused persons on the incident. In support of the move and complaint against the instant accused persons, Mr. Mwita Boniphace @ Nyantori (the first accused) and Mr. Wambura Chacha @ Wakanga (the second accused), the Republic had also summoned three (3) further witnesses, namely: Dr. Celestine Getano Simango, H.2331 D/Cpl. Masana, and H.5098 D/Cpl. Daniel and registered a total of four (4) exhibits, namely 2 Postmortem Examination Report of the deceased, Sketch Map of the Crime Scene, Cautioned Statements of the first accused and second accused: For purposes of appreciation of the materials brought by both parties, the prosecution and defence, brief testimonies of witnesses shall be explained in this judgment. Mr. Meng'anyi (PW5) was summoned to testify on his role in the case and briefly stated that he stays next to Mnadani area and on 20th September 2024 at noon hours he heard Yowe species of voices which had attracted him to visit at the crime scene in order to witness what had transpired. According to him, upon arrival, he found the deceased expired laying facing downward and took steps to inform police officer OC-CID of Serengeti District. In his participation of the whole saga, PW5 had played three (3) roles, namely: first, to visit the crime scene; second, to assist police Officer Faraja (PW4) in sketching a map of crime scene; and finally, to conduct initial investigation of the incident at his area of mandate. In his last role, he was informed by his informer that Ms. Ikwabe was found together with the deceased alive at night hours of 19th September 2022 at Peter Mwisabi's Bar located at Rung'abure Village in Serengeti District of Mara Region. Knowingly the clue that Ms. Ikwabe was the last person to be seen with the deceased alive at night hours, the chairman of the 3 village security committee, had summoned Ms. Ikwabe in afternoon hours of 20th September 2022, to explain on when, where and how she departed with the deceased at night hours of 19th September 2022. From the call, Ms. Ikwabe went to the offices and narrated the entire story on what had transpired before the committee and later to the police authorities. According to Ms. Ikwabe (PW1) on 19th September 2022, at around 18:00 hours, he went at the Peter Mwisabi's Bar located at Rung'abure Village in Serengeti District of Mara Region, following unpaid debts of local brew machicha from her customers. When she was about to depart, according to PW1, he was held back by the deceased asking her to enjoy beer and playing music with other mates, namely: the first accused, second accused, Mr. Sasi Marwa Sasi, Mr. Marwa Chacha, Mr. Matiko Ntencha and another person who she could not identify. PW1 testified further that, after the music and beers at around 00:00 hours, she left together with the deceased, who was her lover for their home residences, but were followed behind by the four (4) named persons and upon reaching at the village junction, where the dual departed, the second accused had attacked her on the head and the deceased at several parts of the body by use of a knife. According to PW1, she was able to identify the accused persons 4 at nights hours because: first, the accused had torches; second, they live together in the same village; third, they are mchicha customers at her sale point; fourth, she knows their voices; fifth, they were together at the Bar at the same night having fun of music and beers; and the attacks incident took almost thirty (30) minutes. According to PW1, on 20th September 2024 in noon hours, she was summoned by PW5 at village offices and had cited the four (4) accused persons in the village security committee and on 21st September 2022, she was ferried for witness statement recording at Mugumu Police Station in Serengeti District. Police Officer Faraja (PW4) on the other hand had testified to have investigated the murder incident at the Rung'abure Village occurred on 20th September 2022 and had four (4) roles in the case, viz, first, he visited the crime scene with a medical doctor, Mr. Celestine Getano (Mr. Getano); second, he sketched a map of crime scene assisted by PW5; third, he recorded witness statement of PW1; and finally, he recorded cautioned statement the first accused. In order to substantiate his roles played, PW4 had tendered and admitted in the case as exhibits sketch map of the crime scene and cautioned statement of the first accused and were marked as exhibits P.2 and P.3 respectively. Exhibit P.3 shows, in brief, that the first accused had participated in the plans and execution of attacking 5 the deceased with knife to death for want of monies emanated from cows selling. PW4 testified further that he participated in arresting both the first and second accused persons in police teams led by police officer H. 2331 D/Cpl. Masana for the first accused and police officer Yunus for the second accused. According to PW4, the first accused was arrested on 21st September 2022 at Tiger Bar within Mugumu area in Serengeti District during night time of 19:00 hours whereas the second accused was arrested at Rung'abure Village on 20th October 2022, at around 15:30 hours, and both were ferried to Mugumu Police Station in Serengeti District for interrogation. According to PW4, the second accused was interrogated by police officer H. 5098 D/Cpl. Daniel. The three (3) cited persons, Mr. Getano, police officers Masana and Mr. Daniel were also summoned by the prosecution to produce their evidences. The Medical doctor who went at the crime scene with police officer PW4, Mr. Getono was brought in the case as prosecution witness number two (PW2) to testify on proof of death, nature and extent of the wounds in the deceased's body. According to him, on 20th September 2022 at noon hours he was cell-phoned and requested by police officer OC-CID of Serengeti to go to Rung'abure Village to examine the deceased's body. PW2 testified to have complied with the request and went to crime scene where he found the deceased's body with a lot of stab wounds on head, left 6 arm-pit, and both legs. PW2 finally tendered a post-mortem report of the deceased as exhibit P.l, which shows that: the deceased was assaulted and sustained multiple stab wounds on head, left arm-pit, left tower limb and right leg, and the source of death was severe bleeding. On the other hand, police officer Masana (PW3), had testified to have arrested the first accused around 19:00 hours at Tiger Bar within Mugumu area of Serengeti District in a company of police officer Faraja and had ferried him to Mugumu Police Station where he was interrogated. On his part police officer Daniel (PW6) had testified to have recorded cautioned statement of the second accused who was brought to Mugumu Police Station by police officers PW4 and Yunus on 20th October 2022 at 16:45 hours. According to PW6, in the cautioned statement, the second accused had confessed to have participated in the attacks against the deceased, in order to validate his testimony, PW6 had prayed this court to admit the statement to be part of the record in the instant case, and it was admitted as exhibit P.4. The materials brought by the Republic in the case had persuaded this court to believe that the accused persons may have committed the alleged offence hence called them to reply the evidences which point a finger at them. According to the first 7 accused (DW1), he was arrested by police officer PW4 on 21st September 2022 around 20:00 hours at Tiger Bar within Mugumu area in Serengeti District when enjoying his beers and was brought before Mugumu Police Station. According to him he was not informed the reasons of arrest and upon arrival at the police station, he was locked-up in the police cells until the morning of next day 22nd September 2022. On the next morning, according to DW1, he was taken to Gender Desk Offices where he was forced to confess attacking the deceased at night hours of 20th September 2022, but he refused. DW1 testified further that his refusal had forced PW4 and police Christopher to transfer him to the Interrogation Room No. 19, where he was slapped, beaten at different parts of the body, including the back and buttocks by use of a club and was forced to sign by thumb-print unknown paper. According to DW2, he refused to sign, but was beaten at the back and slapped on face and had rescued himself from the pains by entering his signature in the papers, which he came to learn it was a confessional statement. Regarding witness PW1 in particular and materials brought by the Republic generally, DW1 stated that they came to produce lies against him and he voluntarily recorded the whole truth in extra judicial statement recorded at the justice of peace called Akinyi at 8 Mugumu Primary Court on 28th October 2022. On the day of the incident, between 19th and 20th September 2022, DW1 testified to have stayed between his residence and tobacco farms at Rung'abure Village in Serengeti District, without any night movements in Bars or junctions. According to him, he does not know the second accused, the deceased and PW1 and heard of the death of the deceased on 22nd September 2022 at Mugumu Police Station, and that between the same days, his family was not at his residence as his wives had left for cassava harvest whereas his children were playing kids games at neighboring residences. The second accused (DW2) on his part had testified that in the alleged timing of the attacking incident against the deceased, he was sleeping at his home residence in Rung'abure Village in a company of his four (4) years daughter called Ms. Peace and did not move anywhere between evening hours of 19th September 2022 and noon hours of 20th September 2022, until he heard Yowe type of alarm voices next to Mnadani area. As the practice so required, he also rushed to the Yowe area and had witnessed the body of unknown human being laying down to the land. Following the incident, according to DW2, on 20th October 2022, he was arrested by police officers, including PW4 at Rung'abure Centre and ferried to Mugumu Police Station for interrogation. However, DW1 testified that he was not interrogated on the same day, but morning hours of the 9 next day, 21st October 2022. Testifying on what had transpired on the day, DW2 stated that PW4 took him from the lock-up for the Interrogation Room, where he was questioned, hand-cuffed, beaten and forced to confess the crime of murder against the deceased. According to DW2, the beatings were tough to the extent he lost his consciousness and upon gaining his consciousness, he found unknown documents before him and was forced to fix his thumb­ print. Following signing of the documents, according to DW2, he was taken before justice of peace at Mugumu Primary Court in Serengeti District to state the truth of the incident and had accordingly explained before a magistrate called Hon. Akinyi. Regarding presence of his wife Rhobi Amos and the other three (3) children at his home residence between evening hours of 19th September 2022 and morning hours of 20th September 2022, DW2 stated that his wife and his three (3) children had departed for marriage ceremony in another jurisdiction. According to DW2, he does not know the deceased and the case against him was fabricated by the Republic. I have perused the instant case and the law regulating liabilities of accused persons in criminal cases of the present species. The record shows that there is no dispute that the deceased had expired at the crime scene. The only disputes as whether the accused io persons know the deceased and whether they participated in the killing of the deceased. The materials brought by witness PW1, PW2, PW5, DW2 and exhibit P.l shows that the deceased had actually expired and the source of his death is the attacks of stab wounds types. As both the prosecution and defence supports the move on death verification, this court cannot be detained on the subject. The second questions on whether the accused persons know the deceased, in law, that is not necessary element in establishing the crime of murder. The offence of murder constitutes three (3) important elements, namely: first, unnatural death of the deceased; second, the deceased was killed by accused; and finally, presence of a special intention, malice aforethought. In the instant case, as previously indicated, there are no disputes as to the unnatural demise of the deceased. The disputes are at two (2) levels, namely: first, whether the accused persons have killed the deceased; and whether they have killed with malice aforethought. The law regulating criminal liability of accused persons shoulders the burden of proving the case beyond reasonable doubt to the Republic (see: section 3 (2) (a) of the Evidence Act [Cap. 6 R.E. 2022] and Said Hemed v. Republic [1987] TLR 117. Beyond reasonable doubt is a legal standard that requires the prosecution to provide materials in evidences and exhibits to convince the court that the accused persons have committed the alleged offence. ii In doing so, the prosecution must prove each element of the crime (see: Magendo Paul v. Republic [1993] TLR 219 and Christina Kale v. Republic [1992] TLR 302). In murder cases, three (3) listed elements must be proved beyond reasonable doubt to the extent that there must be strong evidence against the accused persons. Strong materials may be produced by eye witness or circumstances. The law enacted in section 62 (1) (a) of the Evidence Act [Cap. 6 R.E. 2022] (the Evidence Act) requires oral evidence to be direct and if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it. However, it is not necessary that every killing had to be eye witnessed (see: Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004). In the present case, the Republic has brought a total of eight (8) witnesses and eight (8) exhibits contending that the materials are stronger to hold the accused persons responsible for the crime against the deceased. Reading the materials, the Republic had heavily relied in the testimony of eye witness PW1 corroborated by accused persons' cautioned statements. Witness PW1 had testified in this court that she witnessed the accused persons attacking the deceased at the crime scene and she was also injured at the head. However, PW1 had remained with the information until in the afternoon of the next day, when she was summoned by the village security committee, to explain where she had departed with the 12 deceased. The practice requires eye witnesses to cite accused persons at the earliest possible opportunity and if they do so they are considered to be best witness and their reliability is assured (see: Marwa Wangiti Mwita & Another v. Republic [2002] TLR 39; Republic v. Nyataigo Mwita @ Makende, Criminal Sessions Case No. 154 of 2022; and Republic v. John Mbatira @ Mtuke, Criminal Sessions Case No. 181 of 2022). The record of the instant case shows that PW1 had met several persons in the course before meeting the village security committee, but had remained mute on what had transpired at midnight of 19th leading to 20th September 2022. In brief, witness PW1 may not be reliable and it may not be safe to rely on her evidence to say the accused persons have attacked the deceased to death. The accused persons on the other hand have denied their involvement in the commission of the offence. Their testimonies are the same that on the timing of the occurrence of the alleged offence, they were at their home residences enjoying sleeping. According to the materials produced by the first accused, between evening hours of 19th September 2022 and evening hours of 20th September 2022, he was at his home residence without any other person knowing he is at his residence. He also claimed to have beaten by the police at Mugumu Police Station to confess the 13 offence of murder, recorded extra judicial statement by Hon. Akinyi of Mugumu Primary Court and treated by medical doctors at prisons authorities. However, he declined to call either of the cited persons to corroborate his statement. In the surprising move, the first accused person had denied to have known his village mates, the deceased who was also Machoka Hamlet Chairman, PW1 and second accused. Similarly, the second accused also had denied his village mates, the deceased who was also Machoka Hamlet Chairman, PW1 and first accused. He also testified to have been at his home resident sleeping in a company of his four (4) years daughter Peace at the timing of the offence, night hours of 19th September 2022 to morning hours of 20th September 2022. In that timing, according to him, no any other person who can say as to his location and activities he was doing at his home residence. The law regulating credibility and reliability of witnesses states that every witness is credible and reliable, unless faulted with good reasons by the court of law (see: Goodluck Kyando v. Republic [2006] TLR. 363]. However, the conduct of the accused persons in the case, leaves a lot to be desired. The accused persons have lived in the same village with PW1 and the deceased for more than thirty (30) years and live next to the crime scene, which is known as meeting point of 14 exchanging goods and services in the village. This is a obvious lie to their fellow villagers and this court, and in some cases, it may corroborate the prosecution case (see: Felix Lucas Kisinyila v. Republic, Criminal Appeal No. 129 of 2002; Salum Yusuf Liundi v. Republic, Criminal Appeal No. 26 of 1984; and Republic v. John Mbatira @ Mtuke, Criminal Sessions Case No. 181 of 2022). In the instant case, there are narrations of the crime scene by both accused persons in exhibits P.3 and P.4. The first accused person narrated that: ...tukaondoka na kujificha mnadani, chini njiani ambapo wanapita akina Matiko Tencha pamoja na mpenzi wake aitwaye Bhoke Ikwabe kwenda nyumbani kwao na majira ya saa 01:00 kasoro tarehe 20.09.2022, Matiko Tencha na mpenzi wake Bhoke Ikwabe waiikuja wakitokea baa mpya hadi karibu na sehemu ambayo tuiikuwa tumejificha kwa kugawana pande mimi na Mwita Marwa @ Chacha tuiikuwa upande wa kuiia ukiwa umeangiia baani au senta na Sasi Marwa @ Sasi na Wambura Chacha Wanchugu waiikificha upande wa kushoto ukiwa umeangaiia senta au baani. The second accused on the other hand had described the crime scene as follows: ...tarehe 20.09.2022 muda wa saa 14:00 mchana niiipata taarifa kuwa Matiko Tencha amekutwa amekufa eneo ia mnadani akiwa ametapakaa damu mwiii mzima na muda wa saa 15:00 poiisi toka Mugumu waiifika na niiienda eneo ia tukio kushuhudia mwiii wa marehemu ukiwa na majeraha mwiiini mwake. 15 Regarding the reasons of the attacks against the deceased, plan of the attacks, execution of the plan, and actual role played by each individual accused person, exhibits P.3 and P.4 are certain and settled. Exhibit P.3 shows, in brief, that: ...nakumbuka kuwa mnamo tarehe 19.09.2022 majira ya saa 19:00 jioni niiikutana na Sasi Marwa @ Sasi maeneo ya sokoni Rungabure ambapo aiikuwana wenzake wawili ambao ni Mwita s/o Marwa @ Chacha ambaye jina take jngine anaitwa Bhoke Kihinga pamoja na Wambura Chacha @ Wanchugu, ndipo Sasi Marwa @ Sasi akaniambia kuwa Matiko Tencha ambaye ni Mwenyekiti wa Kitongoji cha Machoka anauza ngombe na baadae ni mcheki katika baa ya Mtongoro iiiyoko barabara kubwa ya kutokea Mugumu kuja Rung'abure stendi ndipo nikamwambia sawa na iiipofika saa 19:00 hrs niiienda baani kwa Mtongoro Nyagwisi ambapo niiiwakuta Sasi Marwa @ Sasi, Mwita Marwa @ Chacha, Wambura Chacha @ Wanchugu na watu wengine ambao waiikuwa wanakunywa pombe na hapo Sasi s/o Marwa @ Sasi aiininunuiia Konyagi kubwa tukaendeiea kunywa wote na hapo baani waiikuwepo Matiko Tencha, Chacha Tamgonga na Bhoke Mgosi pia Salima Chacha @ Kikoyo na mwenye baa Mtongori Nyagwisi tukiendelea kunywa Matiko s/oTencha aiiondoka toka baani na kwenda katika baa nyingine ya Nyamiongo Magesi ambaye anauza pombe za kienyeji pamoja na bia sisi tuiiendeiea kunywa na Sasi Marwa @ Sasi aiitoka kama anaenda chooni iakini iengo Hikuwa kwenye kumuangaiia Matiko Tencha ambapo aiimuona na akarudi na kutuambia aiipo 16 Matiko Tencha na baada ya kumaliza Konyagi tuliondoka na kwenda baa ambayo yupo Matiko Tencha na Sasi Marwa @ Sasi aiiende/ea kutununulia pombe na hapo Matiko Tencha alikwazana na Wambura Chacha Wanchugu kumuomba Matiko Tencha amnunuiie pombe a mzee Matiko Tencha kukataa, ndipo baada ya kukwazana Matiko Tencha akiwa na mpenzi wake aitwaye Bhoke Ikwabe wakaondoka na kwenda baa mpya ya Boke Wairanya iiiyoko eneo ia mnadani. Kabia hawajaondoka niiifunga miango wa kati na niiitamka maneno yasemayo ieo nina uwezo wa kumuua mtu na hapo ni/ikuwa na kisu ambacho niiitunza kiunoni kwangu kwa kukichomeka kwenye mkanda wangu wa suiuari na baada ya kusema hivyo mmiliki wa baa aiifungua miango na hapo tukaondoka na kujificha mnadani chini njiani ambapo wanapita akina Matiko Tencha pamoja na mpenzi wake aitwaye Bhoke Ikwabe kwenda nyumbani kwao na majira ya saa 01:00 kasoro tarehe 20.09.2022. Matiko s/o Tencha na mpenzi wake Bhoke Ikwabe waiikuja wakitokea baa mpya hadi karibu na sehemu ambayo tuiikuwa tumejificha kwa kugawana pande mimi na Mwita Marwa @ Chacha tuiikuwa upande wa kuiia ukiwa umeangaiia baani au senta na Sasi Marwa @ Sasi na Wambura Chacha Wanchugu walikificha upande wa kushoto ukiwa umeangaiia senta au baani. Ndipo tuiiwakurupusha mimi niiimfuata Bhoke Ikwabe na kumchoma kisu kichwani kwake na kumjeruhi majeraha mawiH na kasha kumpiga ngumi moja katika jicho lake la kuiia na huku nikiwambia akae chini lakini hakukaa chini aiikimbia na nikamfuata na wakati huo Mwita 17 Marwa @ Chacha aiimfuata Matiko s/o Tencha ambapo aliungana na Sasi s/o Marwa @ Sasi pamoja na Wambura s/o Chacha @ Wanchugu na hapo Bhoke Ikwabe aliingia kwenye mji wa Chacha Masanju nami nikarudi nyuma lakini kabla ya kufika tulipokuwa nikaona mwanga wa tochi ukieieka barabarani nikaifuatilia na kuwakuta Sasi Marwa @ Sasi, Wambura s/o Chacha Wanchugu na Mwita s/o Marwa @ Chacha nikawauiiza pesa ziko wapi ndipo Sasi Marwa @ Sasi akanisonya na kujaribu kunichoma kisu ambapo kiiichana t-shirt yangu upande wa kushoto na hapo Mwita Marwa @ Chacha aiiamua ugomvi huo na kuniambia twende nyumbani na wakati ananisindikiza akaniambia kuwa Sasi Marwa @ Sasi aiipata Tshs 30,000/= toka kwa Matiko Tencha basi nilifika nymbani na nikaia kasha nikaiaia, asubuhi ya saa 11:00 niiisikia watu wanaiia na yowe ikipigwa na ambapo niiichukua panga na kwenda eneo ia mnadani na kabla sijafika nikaona watu wengi wakiiia na niiipofika nikakuta Matiko Tencha ameuwawa kwa kuchomwa chomwa sehemu mbaiimbaiiza mwiii wake... Whereas exhibit P.4, in brief shows that: ...nakumbuka mnamo tarehe 19.09.2022, majira ya saa 19:00 niiikutana na Mwita Boniphace na Sasi Marwa @ Sasi pamoja na Mwita Marwa @ Chacha ambapo tuiikuwa katika baa ya Mtongori Nyangwisi na hapo Sasi Marwa @ Sasi aiiambia kuwa Matiko Tencha ana pesa tumnyang'anye pesa hizo Hi tugawane na wakati huo tuiikuwa tunaendeiea kunywa pombe ambazo aiikuwa ananunua Sasi Marwa @ Sasi. Tukiwa hapo Matiko 18 Tencha ambaye ni Mweyekiti wa Kitongoji cha Machoka a/ihama baa na kwenda baa ya Bhoke Wairanya ambayo ni mpya iko maeneo ya Uwanja wa Mnada wa Rung'abare na baada ya kuhama huko Sasi Marwa @ Sasi aiienda baani hapo na baadae alienda Mwita Boniphace na baada ya wao kufika mimi pamoja na Mwita Marwa @ Chacha tuiiwafuata ambao ni Matiko Tencha, Bhoke Masanga jina maarufu Bhoke Msichana, Peter Mwisani, Nyarero Masaka na Msinyo Bhoke @ Kirandi baada ya kuwakuta hao sisi tuiikaa meza moja tukiwa wanne, Hipofika muda wa saa 22:00 usiku Mwita Boniphace aiisimama na wakati huo ameshika kisu mkononi ndipo mama mwenye baa akamkataza asifanye jambo ioiote na hapo akaamua kuacha na kurudi kukaa. Hipofika saa 23:00hrs mimi, Sasi Marwa @ Sasi, Mwita Boniphace na Mwita Marwa @ Chacha, tuiitoka baani na kwenda kuwavizia njiani Matiko Tencha na mpenzi wake Bhoke Masanga ambao waiibaki baani na baada ya kuf/ka njiani hapo tuiijigawa mimi na Sasi Marwa @ Sasi tuiikaa upande mmoja ambao atapita Matiko Tencha wakati anaenda nyumbani kwake na Mwita Boniphace aiikuwa na Mwita Marwa @ Chacha au Mwita s/o Chacha @ Kiginga waiikaa upande mwingine ambao anapitia Bhoke Mesanga, tuiikaa hapo kama muda wa masaa mawiii ambapo Matiko Tencha na Bhoke Masanga walifika na waiipofika sehemu ya kuachana waiiachana na Matiko Tencha akaeiekea upande wetu ambapo tuiimfuata na kuanza kumshambuiia kwa kumchoma na visu sehemu mbaiimbaii za mwiii wake na hapo aiifika Mwita Marwa Chacha ambaye naye aiitusaidia 19 kumchoma Matiko Tencha. Baada ya kumaliza Sasi Marwa Sasi aiichukua Tshs. 30,000/= toka mfukono mwa Matiko Tencha na tuiikimbia kueiekea barabara kubwa ya Rungabure kwenda Musoma ambapo Mwita Boniphace aiikuja na kuomba pesa iakini Sasi Marwa @ Sasi a/ikataa. NHienda nyumbani na tarehe 20.09.2022 muda wa saa 14:00 mchana niiipata taarifa kuwa Matiko Tencha amekutwa amekufa eneo ia mnadani akiwa ametapakaa damu mwiii mzima. Reading the totality of the exhibits P.3 and P.4 together with the evidence of PW1, it is obvious that the accused persons had common intention to accomplish unlawful raiding of the deceased with possibility of attacking him with weapon knife to cause death. I am aware there were complaints during admission of the documents exhibit P.3 & P.4 and actual role played by the instant accused persons. However, perusing the contents of exhibits P.3 and P.4 and the details of sequence of incidents, it is clear that the materials can only be produced by persons who are conversant of what had actually transpired at Mtongori Bar and the crime scene (see: William Mwakatobe v. Republic, Criminal Appeal No. 65 of 1995 and Kashindye Meli v. Republic, Criminal Appeal No. 12 of 1996). In brief, the dual documents are another eye witnesses in the case and practice shows that the best evidence is that given freely by 20 accused persons immediately after the incidents (see: Mabala Masasi Mongwe v. Republic, Criminal Appeal No. 161 of 2010). The complained documents in exhibits P.3 and P.4 were admitted based on the belief that they contained nothing but the truth of what transpired between the evening hours of 19th September 2022 and morning hours of 20th September 2022, in which the accused persons have failed to persuade this court of their presence at their home residences. The documents can safely be relied by this court to resolve the instant contest and enter conviction against the accused persons (see: Mukami Wankyo v. Republic [1990] TLR 46). Again, I have already indicated in this judgment that the record of this case shows that the four (4) suspects cited by PW1 and displayed in exhibits P.3 & P.4 had a meeting at Sokoni and Mtongori Bar to form a common intention to kill the deceased. In those circumstances, it cannot be argued that the role of each individual person must be vividly displayed (see: section 23 of the Penal Code [Cap. 16 R.E. 2022] and precedent in Shija Luyeko v. Republic [2004] TLR 254). The present record shows further that there are confessional statements of co-accused persons which describe the incidents with similarities in the sequence of events corroborated by witness PW1. 21 Such evidences may be considered in rendering conviction against both accused persons (see: 33 (1) & (2) of the Evidence Act [Cap. 6 R.E. 2022] and decision in Asia Iddi v. Republic [1989] TLR 174). I am acquainted and cognizant of the principle that when accused persons confess commission of offences, the safest course to adopt is to have them repeated their statements before a justice of peace and bring the same in courts for scrutiny purposes to learn the voluntariness of the statements (see: Bushiri Mashaka & Three Others v. Republic, Criminal Appeal No.45 of 1991). However, when prosecutions materials are so strong to render conviction to the accused persons, and the accused persons claim to have recorded extra judicial statement before justice of peace, the safest course to take is to employe all available necessary means to call the justice of peace to testify and produce the duplicate of the extra judicial statement (Republic v. Samitu Haruna, Criminal Session Case No. 7 of 2015). In the present case, the only question which has remained for want of an answer is whether the accused persons have committed the offence with malice aforethought. Malice aforethought is the conscious intent or premeditation to cause death or grave bodily harm to another person. This is the highest standard of intent in criminal responsibility, distinct from the general obligation of mens rea in criminal justice system. Malice aforethought is a special intent 22 which requires something more than a mere foresight or knowledge that death will occur. There must be direct materials displaying clear intention of the accused to kill or cause grave harm to the deceased. The want of component malice aforethought in murder species of crime is enacted in section 196 the Penal Code and elaborated in section 200 of the same law. The dual sections have already been considered and resolved by the apex court in our jurisdiction in celebrated and highly cited decision of Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994. The case has been cherished by the same Court and this court in a bunch of precedents (see: Jacob Asegelile Kakune v. D.P.P, Criminal Appeal No. 178 of 2017; Charles Bode v. Republic, Criminal Appeal No. 46 of 2016; Republic v. Wangoko Matienyi @ Njiwa, Criminal Sessions Case No. 518893 of 2023; and Republic v. Zakaria Magesa @ Mrefu, Criminal Session Case No. 529025 of 2023). In the indicated precedent of Enock Kipela v. Republic (supra), the court was of the view that the intention of accused persons may be ascertained from various factors, including: ...the type and size of the weapon used in the attack; the amount of force applied in assaulting; the part of the body where the blow was directed; the number of blows; and the kind of injuries inflicted; and conduct of the accused before, 23 during and after the attack. The material facts of the instant case as extracted from eye witness PW1, DW1, DW2 and exhibits P.l show that the accused persons have used lethal weapon knife, attacked the deceased at sensitive parts of the body head, left arm-pit, left lower Hmb and right leg with multiple stab wounds to cause severe bleedings to death. The accused persons did so from a company of other two (2) persons, who are still at large. The accused persons after the accomplishment of their plan, they quarreled on the distribution of Tanzanian Shillings Thirty Thousand (30,000/=Tshs.) and escaped the crime scene to their favorite directions. The circumstances of this case fit well in the jigsaw of the precedent in Enock Kipela v. Republic (supra). I appreciate a bundle of complaints raised and registered by the defence side during the hearing of the case. I have gone through the complaints and noted no any which tries to reply the two (2) contested questions in this case. The main questions which brought the parties into contest are whether the accused have attacked the decease by knife to death and whether they have done so with malice aforethought. The prosecution materials brought in this case have replied the indicated questions. The position of the law regarding minor discrepancies is that accused persons cannot be 24 acquitted based on minor discrepancies or inconsistencies, which do not go to the root of the matter (see: Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007; Sahoba Benjuda v. Republic, Criminal Appeal No. 96 of 1989; and Republic v. Elija Thomas Patrick @ Patrice Anthony Patrick, Criminal Sessions Case No. 163 of 2022). In conclusion, I am persuaded by the materials in evidence and exhibits registered by the Republic in the case as against the accused persons. The Republic has established its case beyond reasonable doubt per requirement of the law in section 3 (2) (a) of the Evidence Act and I hereby hold the accused persons, Mr. Mwita Boniphace @ Nyantori and Mr. Wambura Chacha @ Wakanga responsible for murder of the deceased, Mr. Matiko Ntencha Mwikwabe contrary to sections 196 and 197 of the Penal Code. Ordered accordingly. >eal to the conviction explained to the parties. F.H. Mtuflya Judge 10.12.2024 This Judgment was pronounced in open court in the presence of the accused persons, Mr. Mwita Boniphace @ Nyantori and Mr. Wambura Chacha @ Wakanga and their learned Defence Attorneys, 25 Ms. Mary Samson and Ms. Lilian Makene and in the presence Ms. Dotto Banga, learned State Attorney for the Republic. Judge 10.12.2024 ANTECEDENTS Banga: My Lord, I thank you. My Lord, the accused persons have been found guilty to the offence of murder of the deceased and the law is settled and certain. My Lord, those who found guilty of the offence are sentenced to death by hanging. My Lord, that is the law and I have no further submissions. F.H. Mtulya Judge 10.12.2024 MITIGATIONS Samson: My Lord, I also thank you. I know the only penalty for murder is death by hanging. However, My Lord, this is a court of record, and I pray to put into the record mitigations of the first accused. My Lord, the first accused is a first offender, and has a wife and two (2) children below the age of eighteen (18) years, who depend on him. My Lord, that is all for the first accused. F.H. Mtulya Judge 26 10.12.2024 Makene: My Lord, I also thank you, My Lord, I am aware the offence of murder invites a penalty of death by hanging. However, I pray to put into the record of the case that the second accused is the first offender and has a wife and seven (7) children. F.H. Mtulya Judge 10.12.2024 1st Accused: My Lord, I have two (2) wives and two (2) children and my father is still alive. My Lord, all these persons depend on me. My Lord, I am also young person and this nation depends on my efforts to raise its economy. My Lord, that is all from me. F.H. Mtulya Judge 10.12.2024 2nd Accused: My Lord, I pray for a lenient sentence. This is my first offence. I also have a family of seven (7) children and I take care of two (2) other children of my brother. My Lord, this family depends on me. That is all from my side My Lord. F.H. Mtulya Judge 10.12.2024 Court: I have heard the learned minds of the parties and accused persons on antecedents and mitigations. However, the enactment of section 196 of the Penal Code provides one sentence only without 27 alternatives. The sentence is enacted in section 197 of the Penal Code and provides for death by hanging. This court is a creation of the law and must abide with the law. In conclusion, I sentence both accused persons, Mr. Mwita Boniphace @ Nyantori and Mr. Wambura Chacha @ Nyantori to death by hanging. It is so ordered. the 10th day of December 2024, in the presence of the accused persons, Mr. Mwita Boniphace @ Nyantori and Mr. Wambura Chacha @ Wakanga and their learned Defence Attorneys, Ms. Mary Samson and Ms. Lilian Makene and in the presence Ms. Dotto 10.12.2024 28