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IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO CRIMINAL SESSION CASE NO. 24147 OF 2024 REPUBLIC VERSUS MATESO SALUM ANDREW JUDGMENT Date: 12 March 2025 & 21 March 2025 SINDA, J:. In this matter, Mateso Salum Andrew, is charged for the offence of murder contrary to Sections 196 and 197 of the Penal Code, Cap. 16, R.E. 2019. As per the particulars of the charge and prosecution evidence, he is accused of murdering one Kipamira Andrea (the Deceased). It is undisputed that the victim died unnaturally. The evidence presented by the prosecution revealed that the Deceased died of a wound on the neck and the abdomen. The remaining important question is whether the accused committed the offence he stands charged with. 1 During the hearing, Monica Matwe, Josebeth Kitale, and Magreth Lyimo, the State Attorneys, appeared for the Republic. Mariam Kapama, learned counsel, represented the accused. In proving its case, the prosecution called eight (8) witnesses and three (3) exhibits. Its case started with one David Masudi Hame (PW1), the former Ward Executive Officer (WEO) for Kitete Ward. He stated that on 21 June 2023, at approximately 16:00 hours in his office, he received information from the acting Village Executive Officer (VEO) Yohanes Ngaga, that a person was found dead in Mfulu Village, Kibidu Mashambani, Kilosa District, Morogoro Region. He testified further that subsequently, he contacted the ward militia, who informed him that he had already notified the relevant authorities and that police officers from Dumila Police Station were on their way to the crime scene. Upon arrival at the crime scene with the village leaders, they observed that the Deceased had a lot of blood and had sustained injuries on the neck and abdomen. They also observed that at the crime scene there was a bicycle, a torch, a stick ('fimbo'), a bag ('mfuko'), and a bedsheet ('shuka'). PW1 also testified that the police officers arranged for the Deceased's body to be taken to Dumila Dispensary for a postmortem 2 examination. He further stated that the VEO and the villagers identified the Deceased. During cross-examination, he stated that their offices usually close at 15:30 hours. However, on 21 June 2023, they didn’t close the office at that time because they were dealing with other issues. And when this incident occurred, he was still in the office. PW1 further stated that he was not at the crime scene when the incident occurred and did not know who killed the Deceased or at what time. He further stated that the Deceased was injured on the neck and stomach. He claimed that he knew the accused as a citizen and was under police custody. He noted that at the scene of the crime, he had found the village leaders and the citizens, including the accused, but he did not remember what the accused was doing or wearing. PW2 was one Tuntufye Emmanuel Ndile, a clinical officer at Dumila Dispensary, who testified that on 21 June 2023, at 18:00 hours, while performing his duties at Dumila Dispensary, a police officer, ASP Mabembere, brought a deceased body for him to determine the cause of death. He testified that he examined the deceased's body and observed that the deceased had injuries on the neck and the abdomen. He stated that the cause of death was excessive bleeding, as a result of the Deceased being 3 cut on the neck by a blunt object, severing the veins and the stomach injury was caused by a blunt object, resulting in the protrusion of the intestines. He testified that he also obtained a DNA sample, which was hair from the deceased's head and placed the hair samples in a plastic bag and handed them over to D/CPL Rashid. He completed a postmortem report and submitted it to the ASP. Mabembere. He prayed to produce the Postmortem report, which was tendered and admitted in court as Exhibit PE1. During cross-examination, PW2 testified that he had ten years of experience at the time of the incident. He testified that he had not stated whether he was allowed to conduct a post-mortem. He also said that he had not stated whether his responsibility was to take samples for DNA in a murder case. PW2 further testified that he knew the names of the deceased's relatives because ASP Mabembere had told him. He had given the DNA samples to D/CPL Rashid, but he did not recall whether he had received any acknowledgment. He stated that he did not signed anywhere to confirm that the report was handed over to ASP. Mabembere. PW2 also testified that the deceased had died because of excessive bleeding from the neck and stomach. He stated that he had given a statement at the 4 hospital, but he did not remember the date. PW2 testified that when he had examined the deceased body, his relatives and ASP Mabembere had been present. He had been told that the sample was going to the Chief Government Chemist, but he did not know for what purpose. PW3, G.4330 D/CPL RASHID, a police officer at Dumila Police Station testified that on 21 June 2023, at 18:00 hours, he received a call from ASP. Mabembere required to go to Dumila Dispensary to take a sample from PW2. He found the police officers and the deceased’s relatives at Dumila Dispensary. He testified that he took the sample from PW2 which was the hair of the Deceased in a brown envelope and had taken the sample to Dumila Police Station. PW3 stated that he hand over the sample to the exhibit keeper, G.4357 CPL Ally, and they signed the exhibit register together, confirming that he had given G.4357 CPL Ally the exhibit. During cross-examination, PW3 stated that he did not remember if he had acknowledged receiving the sample form PW2. He stated that he had not brought the exhibit register to court to show that he had signed on it. He said that he did not know if the exhibit had been given any number. 5 PW4 G.4221 D/CPL DANIEL, a police officer at Dumila Police Station, testified that on 21 June 2023, he was at the Dumila Police Station when ASP Mabembere directed him to interrogate the accused. He stated that he went to the lock-up and took the suspect to the interrogation room at 21:00 hours. PW4 stated that during interrogation, he noted that the accused’s T-shirt had stains that looked like blood, which the accused claimed were not blood but banana sap or glue, ‘Utomvu wa Ndizi’. PW4 further testified that he informed ASP Mabembere about the stains on the accused's T-shirt, which appeared to be blood. ASP Mabembere gave him the order to seize the T- shirt. PW4 stated that he used a seizure certificate to seize the t-shirt and then asked the suspect to sign it. PW4 produced the seizure certificate, which was tendered and then admitted as Exhibit PE2. PW4 continued to testify that the interrogation ended during the night and that he locked the exhibit in the cabinet because the exhibit keeper was not around. He stated that on 22 June 2023, he handed the T-shirt to Exhibit Keeper G.4357, CPL Ally of Dumila Police Station, through the Occurrence Book. During Cross-examination, PW4 stated that during interrogation, the accused didn’t confess to killing the deceased. PW4 stated that the color of the T-shirt was grey and the blood on it had dried. He had not seen banana 6 sap or glue, known as “Utomvu wa ndizi,” and he took the T-shirt at night around 21:30 hours. PW4 stated that he didn’t say whose cabinet in which department he stored it, how strong the lock was, or if it could easily be opened, or who kept the keys to the lock. He testified that when he gave CPL Ally the exhibit, he didn’t indicate that it had been assigned a number, and he also didn’t bring any assigned documents. PW5: G.4357 CPL ALLY, a police officer at Dumila Police Station, stated that on 21 June 2023, at 19:00 hours at Dumila Police Station he received a sample of hair in a brown envelope from G.4330 D/CPL Rashid through Form PF-16 in relation to a murder investigation with reference number DUMILA/IR/1091/2023. He stated further that on 22 June 2023, at 10:00 hours, he received an exhibit, a T-shirt in a brown envelope, from G.4221 D/CPL Daniel through the Occurrence Book because the exhibit register was fully utilized. He stated that the exhibits remained in the exhibit room until 22 August 2023, when he handed over the hair sample and the T-shirt to G.1960 D/CPL Emilian to take to the Chief Government Chemist for further examination. He stated that he handed over the exhibits through the Occurrence Book and Form PF-16, and they are currently in the custody of the Government Chemist. PW5 testified that he did not produce the 7 Occurrence Book and Form PF-16 in court, as they were subject to an audit at the head office. During cross-examination, PW5 stated that on 21 June 2023, he left his office at approximately 20:30 hours while G.4221 D/CPL Daniel was not at the office and didn’t observe the suspect at the police station. He stated that on 22 June 2023, he was given a red T-shirt bearing blood stains, and he labeled the exhibits. PW5 testified that he observed blood stains on the front of the red T-shirt. He further stated that on 22 June 2023, he transferred the exhibits to G.1960 D/CPL Emilian through Form PF-16 and the Occurrence Book, which he didn’t bring to court. PW5 stated that in his absence at the office, exhibits are to be entrusted to the Officer-in-Charge, who is responsible for designating a custodian in his absence. PW6 J.2706 PC JOHN MASAKA a forensic constable at the Forensic Bureau in Dar es Salaam testified that on 22 August 2023 G.1960 D/CPL Emilian arrived at the Forensic Bureau with a letter requesting for a DNA test with reference numbered DUM/IR/1090/2023 from the OCCID Kilosa, regarding a murder case involving the accused, Mateso Salum Andrea. He stated that the exhibits were a multicolored bed sheet with blood stains, a 8 hair sample from the deceased, Kipamira Andrea, and a green T-shirt bearing blood stains. PW6 stated that after receiving the exhibits, he wrote a letter on 24 August 2023 to the Chief Government Chemist requesting a DNA test. He testified that the samples were received by Anna I. Chuwa, the Chief Government Officer in Dar es Salaam and registered in the office register number HQ/2023-01833. During cross-examination, PW6 stated that on 22 August 2023, he received a T-shirt which was green in color. He stated that he did not open the exhibit, but he knew it was green from the Form PF-180 and the letter from OCCID Kilosa. Furthermore, he testified that when they opened the exhibit at the Government Chemist, they confirmed it was indeed green in color. PW7: ANNA JAMES CHUWA, a chief government officer at the Chief Government Chemist, testified that on 24 August 2023, she received a sealed envelope from the Forensic Bureau delivered by Forensic Constable John Masaka. She testified that the envelope contained a letter from OCCID Kilosa, instructing them to examine the samples: Exhibit 1, a multicolored 9 bed sheet with blood stains; Exhibit 2, the hair of the deceased; and Exhibit 3, a T-shirt of the accused with blood stains, and provide an expert opinion. She said that the exhibits were in good condition and sealed, and she registered them with the registration number HQ/2023-01833. She proceeded to analyze the samples and prepared the forensic DNA profiling test report with lab number HQ/2023-01833. She prayed to produce the forensic DNA profiling test report, which was tendered and admitted in court as Exhibit PE3. PW7 testified that her report showed that the DNA in Exhibits 2 and 3 were similar. During cross-examination, PW7 stated that she received a parcel containing three parcels, and the lab number HQ/2023-01833 was on one of the parcels. She stated that the T-shirt was green, and the mixed dye in the bed sheet made DNA extraction difficult due to the low DNA quantity. During re-examination, PW7 stated that the Forensic Bureau letter, OCCID Kilosa letter, and PF -180 are kept in the office file. PW8, G.1960 D/CPL Emilian, a police officer at Dumila Police Station, stated that on 21 June 2023, he was instructed by ASP Mabembere to go to the scene of the crime at Kibidu Mashambani, Kitete Ward, Mafuru Village, 10 Kilosa District, Morogoro Region. PW8 testified that he found the deceased's body lying on the ground with a lot of blood. He also found a bicycle, a bed sheet, a torch, and a stick. PW8 also stated that the deceased's body had injuries on the neck and stomach. PW8 testified that ASP Mabembere instructed him to take the bed sheet to the police station for further investigation and to arrest the accused, Mateso Salum Andrea. He explained that citizens at the scene had suspected Mateso Salum Andrea due to his knowledge of the incident and requested that the police interrogate him. He added that the accused had shown the village leaders and citizens where the bicycle, bed sheet, torch, and stick were located. He stated that the accused was wearing a green T-shirt and trousers. He said he had stored the bed sheet in a cabinet and kept the keys. PW8 testified that on 22 August 2023, he received the accused's T-shirt and the deceased's hair from CPL Ally at the exhibit office to take them to the Forensic Bureau in Dar es Salaam. He said that the hair, t-shirt and the bed sheet were in separate envelopes. He sealed all three envelopes into one parcel and delivered it to J.2706 PC John Masaka at the Forensic Bureau on 22 August 2023, accompanied by a letter, PF-180. 11 PW8 testified that as the investigating officer, he waited for the forensic report from the Chief Government Chemist, as no evidence directly linked the accused to the murder. He stated that on 13 September 2023, he collected the report from the Chief Government Chemist, which indicated that the DNA from the accused's T-shirt matched the deceased's hair, and then forwarded the case file to the prosecution's office. PW8 mentioned that CPL Ally had handed over the exhibits to him, which were documented in the exhibit register PF 16 and the Occurrence Book, and that these documents are still at the police headquarters for inspection. During cross-examination, PW8 stated that there were many people at the crime scene. He said that he had not seen the accused at the crime scene. PW8 testified that CPL Ally had not been at the police station when he had brought the bed sheet. Instead, ASP Mabembere had been present. He stated that he had not received an order from ASP Mabembere to keep the bed sheet, but he had kept it because he was the investigating officer. He clarified that CPL Ally was in charge and responsible for all exhibits. He confirmed that he had arrested the accused at the scene of the crime. 12 PW8 testified that they had used the exact vehicle to transport the deceased's body to the Dumila Dispensary. He stated that he did not remember who had carried the deceased's body into the car. He stated that he had discovered that the bed sheet, bicycle, torch, and stick belonged to the deceased, but no one had identified the bed sheet. PW8 stated that he did not know the weapon used to kill the deceased. PW8 testified that he did not remember the number of citizens in the vehicle or the time they had left the scene. He stated that he did not remember if the accused had carried the bicycle into the police station. He said that the Government Chemist Laboratory report had confirmed his belief in the accused's responsibility. PW8 acknowledged that he knew D/CPL Daniel had brought the t-shirt to CPL Ally. PW8 stated and acknowledged that grey and green, as well as red and green, were distinct colours. He explained that he had not brought PF 180 as it had been left at the Forensic Bureau. He said he had not brought PF 16 and the Occurrence Book, as they were for inspection at the headquarters. He added that they were now using a new book, which he also had not brought. 13 Following a ruling on prima facie case, the accused MATESO SALUM ANDREW was invited to enter his defence. He testified as DW1. DW1 testified that he is a farmer and live in Mfuru village, Kibidu, Kitete ward. He stated he knew Kipamira Andrea as his deceased uncle. He recounted that on 21June 2023, at 10:00 hours, he was sick at home, and in the evening, he went to Kibidu to check on the cows who entered his farm. DW1 encountered that he met with his mother, Eva Andrea Mshindu, and Iddi Amiri, a villager, at Mfuru Road while his mother showed him blood on the ground. He stated that upon inquiry, they said it was cow's blood. He said that following Iddi Amiri's suggestion, they searched the area and found a bicycle and Kipamira's body on Kadengu Yohana's farm. He further testified that the body had injuries on the face, neck, abdomen, and chest. DW1 testified that Iddi Amiri told him not to tell his mother because he didn’t want to be a witness. He stated that then he told his mother that they found the body of his uncle Kipamira and his mother said she would inform the village leaders. DW1 testified that his mother told him to stay with the body while she informed his brother God Andrea. He said that later, Chagongo, 14 Mnyonge, and God Andrea arrived and observed the body. Also, he stated that Chagongo and God asked him to get a bed sheet to cover the deceased, and then he brought a white bed sheet and covered the body. DW1 stated that about 20 minutes later, his brothers, Emily Salum, and Madeni Ramadhan, arrived to observe the deceased body, and soon after three unknown people also came to observe the body. He testified that around 8 p.m., the police officers arrived and gave him, his uncle God Andrea, and Madeni gloves to carry the deceased body. DW1 stated that on his side supporting the deceased head, his uncle God Andrea at the side, and Madeni at the legs while the village doctor secured the body with the bed sheet. He said that they took the body to the police vehicle. Then he stated that the police officers told them to stand near the informants and leaders, stating the body should go to the hospital with relatives. DW1 testified that he, Madeni Ramadhani, and God Andrea entered the police vehicle and took the body to Dumila Hospital. Police Officer Emilian asked about the ownership of the sesame seeds farms in front of the police vehicle DW1 said that were belonged to him and his mother, and that he was responsible for the farms. He testified that at Dumila Hospital, the body 15 was examined in the vehicle, and he didn’t see Doctor Tuntufye remove the deceased's hair. DW1 stated that then they went to Dumila Police Station, where he was told to take the deceased's bicycle inside, and the he was detained. DW1 testified that around 1 p.m., police officers Rashid and Daniel allegedly assaulted him, demanding to know who killed the deceased. DW1 said that he denied involvement. The next day DW1 stated that he was taken to his home, where a search was conducted and he was questioned about his clothing. DW1 testified that on 21 June 2023, he wore a grey t-shirt, and on 22 June 2023, around 11:00 hours it was taken by the police officer. He stated that he was detained for 40 days at Dumila police station, then 5 days at Kilosa police station, before being bailed on 5 August 2023, by his brother and re- arrested on 27 December 2023 up to Morogoro Central Police. DW1 denied involvement and stated there were witnesses to his innocence and the fact he wore a grey T-shirt, and not green or red he requested the court to set him free. 16 During cross-examination DW1 confirmed Kipamira was deceased and he owned a farm in Kibidu Mashambani. He stated that there was no sesame theft and he hadn’t experienced envy-related issues. DW1 reiterated he was home sick on 20 June 2023, and he carried the deceased body as a relative, but he was unaware of the police procedures. He affirmed his ability to distinguish colors. DW1 said his advocate didn’t cross-examine the doctor, and he was supposed to be told the hair belonged to the deceased. DW1 stated that he was beaten by the police officers at the police station, while not given a PF3 form for treatment. He said that his advocate didn’t ask if the police killed him. DW1 stated that he was beaten for three hours and didn’t admit to killing his deceased uncle. He said that his t-shirt was taken at 11:00 hours on 22 June 2023 and not 21:30 hours on 21 June 2023. DW1 said that the T-shirt belonged to his deceased brother and it was not taken to the government chemist due to the inconsistency of said colours. DW1 stated he was arrested because he said the farm was his and he didn’t know why he was arrested. In re-examination DW1 reiterated he was home sick on 20 June 2023, and at the scene of the crime, the police officers told them to wear gloves 17 and carry the deceased body as relatives. He stated that he was arrested at the police station and Madeni Ramadhan and the late God Andrea were witnesses. DW1 stated the deceased's body was examined in the police vehicle at Dumila Dispensary, where he was present as a citizen. DW1 confirmed he wasn’t taken to the hospital after being beaten at the police station. Finally, DW1 confirmed his grey t-shirt was taken on 22 June 2023, at 11:00 hours. That marked the end of the defence case which was followed by final submissions from the Counsel for both sides. In their submissions, they extensively gave details pertaining to the evidence adduced by both sides. In final submission the prosecution submitted that on 21 June 2023, Kipamira Andrea was murdered, and his body was found with fatal cut wounds. They submitted that medical evidence confirmed the cause of death as severe bleeding and DNA samples were collected. They argued that during interrogation by a police officer, the accused's T-shirt revealed blood-like marks, and later on confirmed by forensic analysis to match the deceased's DNA. They submitted that the accused denied the allegations, claiming the 18 stains were banana sap that he touched the body, and that he was wearing a grey T-shirt. To establish the offence of murder against the accused, the prosecution submitted by cited a case of Anthony Kananila & Another vs Republic (Criminal Appeal No. 83 of 2021) [2022] TZCA 356, which states the prosecution must prove the required elements beyond a reasonable doubt these: (i) That the accused is dead, (ii) That the death was caused unlawfully, (iii) That the act was committed with malice aforethought, and (iv) That the accused person directly or indirectly participated in the commission of the murder. The prosecution submitted that all elements are met through cogent evidence, particularly the DNA match. Relying upon as stated in the case of Bahati Makeja v. Republic, (Criminal Appeal Wo. 118 of 2006), the prosecution submitted that the circumstantial evidence meets the required tests: 1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established beyond reasonable doubt; 2. those circumstances should be of a definite or conclusive tendency unerringly pointing towards the guilt of the 19 accused; 3. 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; and 4. the circumstantial evidence in order to sustain a conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and should be inconsistent with his innocence. On addressing the defence discrepancies regarding the T-shirt colour, the prosecution submitted by invoked the case of Mohamed Said Matula v Republic [1995] TLR3, Shaban Mpunzu @Elisha Mpunzu vs Republic (Criminal Appeal No. 12 of 2000), and Howard Ngao v. Republic (Criminal appeal No. 454 of 2021) [2024] TZCA 195, arguing these are minor and do not affect the case's core. They attribute the discrepancies to time-lapse and observational errors, citing the case of Dickson Elia Nsamba Shapwata and Another v. Republic, Criminal Appeal No. 92 of 2007, which distinguishes between normal and material discrepancies. The prosecution emphasizes the meticulous chain of custody, supported by witness testimonies, and addresses documentation concerns by citing the case of Chacha Jeremiah Murimi and 3 Others v. Republic, Criminal 20 Appeal No. 551 of 2015, which allows for flexibility in documentation depending on circumstances, especially when items are difficult to tamper with, and also reference to Paulo Maduka and Others v. R., Criminal Appeal No. 110 of 2007 and Makoye Samwel @ Kashinje and Kashindye Bundala, Criminal Appeal No. 32 of 2014. The prosecution side concluded their submission by stating that their evidence proves the accused's guilt beyond a reasonable doubt and requested a murder conviction with the death penalty. In the final submission the defence submitted that the prosecution's murder case, relying solely on circumstantial evidence, that fails to meet the required legal standards. She submitted that the accused person and the deceased lived in the same village. She said that on 21 June 2023, the accused, with his mother and another, discovered the deceased's body with severe wounds near their farm. She submitted that they informed relatives, and later, the police arrived at the scene of the crime. Ms. Kapama submitted that the accused assisted in transporting the body to Dumila Hospital. She said that at the police station, he was arrested, allegedly assaulted, and his grey t- shirt was seized. He was later charged with murder. 21 Ms. Kapama learned advocate contended that the prosecution, despite presenting exhibits and witnesses, but failed to prove the accused committed the offence. To emphasize the need for strict adherence to principles governing circumstantial evidence, Ms. Kapama cited a case of MARKO KIVAMBA vs. THE REPUBLIC, CRIMINAL APPEAL NO. 18 OF 2022, which quotes Jimmy Runangaza v. Republic, Criminal Appeal No. 159B of 2017, outlining three tests: 1. the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2. those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and 3. the circumstances taken Cumulatively, should form a chain so, complete that there is no escape from the conclusion that within alt human probability the crime was committed by the accused and no one else. Ms. Kapama submitted that the prosecution failed to meet those tests. She said that; First, the prosecution did not firmly establish the accused as the killer, as evidence regarding the t-shirt's ownership and handling was contradictory, particularly concerning its colour, as evidenced by conflicting testimonies from PW4, PW5, PW6, and PW7. The learned counsel cited the case of Augustine Njoroge Ritho @Chabah v. Republic; Criminal 22 Appeal No.99 of 1986, stating that inconsistent evidence cannot be relied upon. Ms. Kapama submitted that, secondly, the prosecution failed to establish circumstances closely pointing to the accused's guilt. Thirdly, she submitted that the prosecution did not establish a clear chain of circumstances implicating the accused, especially regarding the t-shirt's chain of custody and the changing color. She referred to SARKAR ON EVIDENCE to emphasize the need for a holistic view of circumstantial evidence. The defence also argued that the lack of a confession, citing Mohamed Haruna Mtupeni and Another v. Republic, Criminal Appeal No. 259 of 2007, which highlights the importance of an accused’s free confession. The defense concludes their submission by submitting that the prosecution's evidence does not form a complete chain leading to the accused's conviction. They caution against allowing suspicion to replace legal proof, referencing Balwinder Singh v State of Punjab, and reiterate the need to adhere to the principles governing circumstantial evidence to avoid injustice. They request the court to dismiss the charge and acquit the accused. 23 To determine this matter first it is important to note, ‘It is trite law that the Prosecution bears the burden of proving their case’. This principle was stressed in the case of Ahazi Kilowoko vs. Republic (Criminal Appeal No. 351 of 2023) [2025] TZCA 222 (17 March 2025), Tanzlii at page 11 of its judgment the Court of Appeal of Tanzania at Iringa stated that; “We wish to state that, the burden of proof in criminal cases lies on the prosecution shoulders and the standard is proof beyond reasonable doubt”. Additionally, it is a well-established principle that in murder cases, the prosecution must prove certain key elements beyond a reasonable doubt before the court can convict the accused person. This position was stated in the case of Baruani Magoko @ Chacha vs. Republic (Criminal Appeal No. 2 of 2022) [2025] TZCA 162 (3 March 2025), Tanzlii at pages 10 and 11 of the judgment, the Court of Court of Appeal of Tanzania at Musoma held that; “…in proving the offence of murder under section 196 of the Penal Code, it must be established that the death of a human being occurred, that the death was unnatural and was caused by an unlawful act or omission, that it was the accused person who did the unlawful act or omission leading to the death of the deceased and finally that the death was caused with malice aforethought.” 24 Having in mind the above ingredients of the offence of murder and the legal principles alluded to above, the main issue for determination is whether the offence has been proven against the accused person beyond a reasonable doubt. I will test the ingredients of the offence of murder as identified earlier to the facts of the present case. The first ingredient to be established in a murder case is whether the said deceased actually died. This fact is not disputed by either party. The second ingredient of murder, which has to be established, is whether the death was unnatural and was caused by an unlawful act or omission. The court received an expert opinion from the clinical officer at Dumila Dispensary in Kilosa District, Morogoro region who testified as PW2 by stating that on 21 June 2023, he conducted post mortem examination of the deceased's body and found the cause of death was bleeding, as the deceased had been cut on the neck by a blunt object, severing the veins. He had also found that the stomach injury was caused by a blunt object, resulting in the protrusion of the intestines. In view of this, the prosecution proved successfully that the deceased had faced an unusual death. 25 The third ingredient of murder that has to be established is whether it was the accused person who caused the death of the deceased. During the prosecution's testimony, the prosecution brought both oral and documentary evidence to establish that the accused was the one who murdered the deceased. On the assessment, their evidence indicates that none of the 8 called witnesses testified that they identified the accused person as the one who committed the offence or observed him at the scene of the crime, rather than based on circumstantial evidence. According to PW8 G.1960 D/CPL EMILIAN a police officer at Dumila Police Station, Kilosa District, Morogoro, who was the key witness on the prosecution side, testified that he believed Mateso Salum Andrew (the accused) was a murderer because the citizens had suspected him due to his knowledge of the incident by showing them and the village leaders where the deceased bicycle, bed sheet, torch, and stick were located. During the prosecution's final submission, they insisted that the circumstantial evidence satisfied the accused person, the one who murdered Kipamira Adrea (the deceased). To emphasise their argument, they cited the case of Bahati Makeja (supra), which demonstrates that their 26 circumstantial evidence meets the required tests: cogent establishment, definite tendency, a complete chain, and inconsistency with innocence. The defence contended that the prosecution failed to meet those tests, as the circumstantial evidence regarding the t-shirt's ownership and handling was contradictory, particularly concerning its colour, as evidenced by conflicting testimonies from PW4, PW5, PW6, and PW7. To emphasise their contention, Ms. Kapama cited the case of Augustine Njoroge Ritho @Chabah (supra). I concur with both parties that the circumstantial evidence required these tests: cogent establishment, definite tendency, a complete chain, and inconsistency with innocence. For such tests, the law requires corroboration in circumstances like the present to support other evidence that is sufficient, satisfactory, and credible. Having reviewed the record and prosecution testimonies of PW4, PW5, PW6, and PW7, I found that the prosecution's case was marred by discrepancies, particularly concerning the colour of the accused's t-shirt submitted to the Chief Government Chemist for a DNA test. The contradiction was that PW4, when he testified, stated the accused's t-shirt was gray, PW5 stated the t- 27 shirt was red, PW6 testified that the accused's t-shirt was green in colour, and PW7 also stated the t-shirt was green in colour, where the prosecution stated the discrepancy was minor. It is settled that if a witness states inconsistent statements on oath, his or her credibility is destroyed. Refers the case of Marko Musemba @ Lufungiro vs. Republic (Criminal Appeal No. 361 of 2021) [2025] TZCA 39 (20 February 2025), Tanzlii at page 13 of the judgment the Court of Appeal of Tanzania at Musoma stated that; “It is trite law that minor contradictions, inconsistencies and discrepancies by a witness or among witnesses do not affect the credibility of witnesses while material discrepancies do.” Due to the circumstances in this case, the color of the accused's t-shirt is a material fact because it is the garment alleged to have been worn by the accused at the time of the offence and upon which blood was found, which, after DNA testing, was matched to that of the deceased's hair. Thus, I agree with Ms. Kapama, the learned defence counsel, that the discrepancy pointed out in the instant case goes to the root of the case. Consequently, in light of the aforementioned critical discrepancies within the prosecution's case, the court usually does not act upon that point unless it 28 can be supported by other evidence. Therefore, there is insufficient cogent evidence to support a conviction. Meanwhile, I find it unnecessary to discuss the final element of whether the accused caused the deceased's death with malice aforethought, as the third element establishes that the accused did not commit the offense. In the circumstances, the prosecution has failed to prove its case beyond a reasonable doubt. I therefore find the accused person, Mateso Salum Andrew, not guilty of the offence of murder he stands charged with under sections 196 and 197 of the Penal Code, Cap 16, R.E. 2022 and consequently I acquit him of the same charge. Right to appeal is explained. DATED at MOROGORO on this 21 Day of March 2025. A. A. SINDA JUDGE 28 March 2025 29