IBRAHIM ABDUL JUDGEMENT

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB- REGISTRY AT TARIME) ORIGINAL JURISDICTION CRIMINAL SESSION CASE No. 46 OF 2023 (Referenced: 20230720000512584) THE REPUBLIC Versus IBRAHIM ABDUL @ CHACHA JUDGMENT 12.11.2024 & 18.11.2024 Mtulya, J.: In the instant case, the Republic has initiated a murder complaint in this court against Mr. Ibrahim Abdul Chacha (the accused) contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2022] (the Penal Code) and cited two (2) decisions of the apex court in this jurisdiction, the Court of Appeal (the Court), to persuade this court to believe that the accused has actually attacked to death Ms. Stella Juma (the deceased) with malice aforethought. According to Mr. Erasto Anosisye, learned State Attorney, who was brought in the contest by the Republic, the Court has already issued a litmus paper in species of attacks by use of panga to cause death in human person. In his opinion, the decision in Mabala Masasi Mongwe v. Republic, Criminal Appeal No. 161 of 2010, the Court stated that the best evidence is that given freely by the accused, i whereas in the precedent of Charles Bode v. Republic, Criminal Appeal No. 46 of 2016, the Court had issued criteria of spotting malice aforethought's accused persons allegedly to have committed murder. In order to appreciate the allegation and thinking of the Republic against the accused, relevant materials of the case which were brought in the case by the Republic in support of the allegation are explained in this judgment, albeit in brief: On 7th January 2023, at around 17:00 hours, Mr. James Amos (PW1) was moving from a church to his home residence at Majimoto area within Serengeti District in Mara Region and in the course, at the house of Mr. Amos Nyamarori (PW2), he witnessed the accused attacking a lady by use of panga. Seeing the incident is unusual, PW1 went and informed PW2, who had informed police officers at Majimoto Police Station on the incident. The police authority at Majimoto Police Station and PW2 immediately rushed to the crime scene under the authority of G. 7878 CpI. Edward (PW4), and found the deceased was already attacked and villagers assembled at the crime scene. However, they could not find the accused at the crime scene and were told by the villagers that the accused had escaped the crime scene for nearby bushes. PW2, PW4 and some villagers had then initiated a manhunt of the accused and arrested him in bushes within the vicinity of the crime scene, where he escaped for hiding purposes. 2 PW2 and PW4 were summoned in the case to state on their involvement in the case. According to PW2, he was informed on the attack incident by PW1 and immediately rushed to the police and informed PW4 who initiated the manhunt. On his part, PW4 testified that the manhunt had produced a result of arrest of the accused in the bushes near the crime scene. The materials registered during the hearing of the case showed further that the police authorities and relatives of the deceased had taken the deceased for treatment at Kiagata Health Centre (the centre) where she was pronounced dead by medical doctor, Dr. Deogratias George (PW3), who had examined the deceased's body. In the opinion of PW3, the immediate source of death of the deceased was hemorrhagic shock due to multiple cut wounds and fractures. In order to substantiate his testimony, PW3 had produced Postmortem Examination Report of the deceased, which was admitted as exhibit P.l. The exhibit shows that: the deceased sustained multiple cut wounds and open fractures in both upper limbs, facial, neck and head in exposed bones. The facts of the case show further that the accused was arrested on the same day of the incident by PW4 and other villagers, including PW2, and was ferried to Majimoto Police Station. According to PW4, Majimoto Police Station is Class C species of police stations hence operates within twelve (12) hours of the day. Following the indicated status of the station, on 8th 3 January 2023, the accused was taken by PW4 to Serengeti District Police Station at Mugumu. At Serengeti Police Station, the accused met investigation officer H. 2331 Detective CpI. Masana (PW5) and police officer G. 7930 D/Sgnt Erasmus (PW6). Both PW5 and PW6 were summoned to testify in the case. The evidence of PW5 was very brief that he investigated the case from 9th January 2023 when he was given accused's investigation file to read and investigate the killing incident. According to him, after perusal of the file, he found the accused had already admitted the offence on 8th January 2023 before PW6 and Justice of Peace called Hon. Ginene of Serengeti District. In his testimony, PW5 stated to have found other relevant materials of the case in the investigation file, namely: extra judicial statement of the accused recorded before Hon. Ginene; various witnesses' statements; post-mortem examination report of the deceased; and sketch map of the crime scene. In ending his evidence, PW5 prayed to tender exhibit sketch map of the crime scene and it was admitted in the case as exhibit P.2, in brief, exhibit P.2 shows that: the attack of the deceased had occurred outside the house of PW2 at Majimoto Village in Serengeti District on 7th January 2023. On the other hand, PW6 had testified that the accused was brought to Serengeti Police Station on 8th January 2023 and the same 4 date he voluntarily and freely without any inducement or use of force, confessed to have attacked the deceased on 7th January 2023 at Majimoto area. In order to validate his statement, PW6 prayed to tender the accused's cautioned statement and was admitted in the case without any protest of the defence side as exhibit P.3. In brief, exhibit P.3 shows that: Nakumbuka kuwa tarehe 07/01/2023 majira ya 16:00 hours huko maeneo ya Kijiji cha Majimoto WHaya ya Serengeti Mkoa wa Mara niiimkuta mpenzi wangu Khadija d/o Said maarufu kwa jina ia Stella akiwa Grosari ya Joan amekaa na mhudumu wanaongea kitendo ambacho kilinifanya nistuke [kwamba] Hadija d/o Said amekujaje Kijiji cha Majimoto biia kunipa taarifa na ndipo nilimsalimia na kumue/eza kwamba twende nyumbani nikamuonyeshe ninapokaa. Alikubali na tukaondoka kwenda kwenye mji wa Amos Nyamarori ambapo ndipo ninapoishi na baada ya kufika mpenzi wangu huyo a/ianza kunie/eza ya kwamba anataka kuondoka hivyo nisimtafute tena na hata nyumbani kwao hataki wamtafute, mimi ni mwanaume gani nakua namfuati/ia fuatilia na kwa kuwa ugonjwa wake umeisha haina haja ya kuendelea kuwa na mimi. NiHpata hasira na ndipo nikachukua panga lililokuwa hapo kwenye maua na nilimkata mikono yote miwili mara mbili na shingoni karibu na kisigoni mara moja. Wakati namkata alipiga kelele na ndipo alikuja James Amos Nyamarori na kumkuta namkata Hadija d/o Said...Baada ya kelele hizo, ndipo niiiamua kukimbia kwenye nyasi ndefu zilizoota kwenye majaruba na kujificha...yowe iikazidi, wakaja watu 5 wengi wakalizunguka jaruba, wakanikamata na kunipe/eka Kituo cha Polisi Majimoto. Exhibit P.3 shows further that the accused and deceased met sometimes in 2020 at Nyamatare area within Musoma Municipality in Mara Region and had developed love relationship with plans to become wife and husband. In the course of their relationship, on 1st January 2023 the accused went to the deceased's parents and introduced himself as intended husband and was asked to pay kishika uchumba. However, a week later he found his intended wife in a grocery at Majimoto area without any notice of her presence at Majimoto area within Serengeti District, in Mara Region and the story moves further as indicated in the above quotation extracted from exhibit P.3. In replying the materials brought by the prosecution side, the defence had summoned one witness, the accused himself (DW1) and registered no exhibit. According to DW1, he was arrested on 6th January 2023 at Majimoto Village within Serengeti District in the presence of his two (2) workmates from Malanga Street in Serengeti District and Lamadi Area of Simiyu Region. In his testimony, the accused stated that on 7th January 2023, he was already in police custody at Mugumu Police Station in Serengeti District for allegation of stealing of one (1) bag of maize, two (2) cocks and two (2) goats. According to DW1, he cannot be associated with events of 7th 6 January 2023 and attacking of the deceased at Majimoto area within Serengeti District. DW1 testified further that the case of stealing was initiated by PW2 for reasons of declining payment of salary amounting Tanzanian Shillings 870,000/= and issues related to murder case were introduced and fabricated by police officer PW6 on 8th January 2023, when he was in police custody at Mugumu within Serengeti District in Mara Region. Regarding prosecution witnesses PW1 to PW6, DW1 testified that the witnesses had produced lies before the court and should not be believed and exhibits P.l to P.3 may be disregarded by the court as were produced by unreliable witnesses with questionable credibility. On the admitted exhibit P.3 without any protest, DW1 stated that he did not understand its contents and in any case the names of the deceased are confusing from the Information which cites the deceased as Stella Juma whereas exhibit P.3 mentions Hadija Said Manyama. In his testimony, DW1 conceded to have recorded cautioned statement at Mugumu Police Station on 6th January 2024, but it was related to maize, hens and goats stealing. In ending his evidence, DW1 prayed this court to let him free as he did not commit any wrong related to murder of the deceased. Following the testimony of DW1, Mr. Paul Obwana, learned counsel for the accused, during final submissions of the parties, had opined that the prosecution has declined its noble duty of proving 7 cases beyond reasonable doubt. In backing his statement, Mr. Obwana submitted that: the deceased in the case is not known as there are discrepancies in names of the deceased, that the Information against the accused cites Stella Juma, PW1 stated he saw a lady attacked by the accused, exhibit P.l shows Stella Juma Bhori and exhibit P.3 displays Khadija Said. According to him, the discrepancies of names are major and go to the root of the case and produce doubts to be resolved in favor of the accused. In support of the move, Mr. Obwana cited decisions of this court and the Court in Republic v. Simon Kiles Samwel & Two Others, Criminal Session Case No. 50 of 2022, Magendo Paul v. Republic [1993] TLR 219 and Christina Kale v. Republic [1992] TLR 302. In ending his submission, Mr. Obwana stated that if this court finds the names reflect one and the same person, it has to move further to scrutinize the materials in exhibit P.3, which show that the accused was provoked by the deceased. The thinking of Mr. Obwana was bitterly protested by Mr. Anosisye. According to him, this is a pure murder case for various reasons and it is the accused who had killed the deceased with malice aforethought. In order to persuade this court, Mr. Anosisye had registered a bunch of materials and precedents. In brief, his opinions are that: first, the prosecution's materials show series of event from the crime scene, arrest of the accused and ferrying of the deceased at 8 the centre; second, witness PW1 had mentioned the accused at the earliest possible before PW2; third, PW1 witnessed the accused assaulting the deceased at around 17:00 hours with broad day light without any possibility of mistaken identity; fourth, PW1 stated to know the accused and the accused did not dispute; and fifth, the accused was arrested within the vicinity of the crime scene. In bolstering his submission, Mr. Anosisye had produced a total of three (3) precedents for this court to peruse and learn the available practice on the subject, viz. Marwa Wangiti Mwita & Another v. Republic [2002] TLR 39; Waziri Amani v. Republic (1980) TLR 250; and Goodluck Kyando v. Republic (2006) TLR 363. In the opinion of Mr. Anosisye, if this court sees the materials registered by the Republic from witnesses are not enough, it may consider the materials admitted by the accused himself in exhibit P.3 as the best evidence is that given freely by the accused himself without any inducement. In substantiating his statement, Mr. Anosisye had produced the Court's decision in Mabala Masasi Mongwe v. Republic (supra). Mr. Anosisye had moved further to state that the accused had killed the deceased with malice aforethought as: first, the accused used panga in assaulting the deceased; second, he inserted a large amount of force to cut the deceased until bones were displayed; third, he attacked at sensitive parts of the body back of the neck and hands; 9 fourth, the accused had repeated his blows against the deceased; and finally, the accused escaped the crime scene for hiding in bushes. In support of his claim for malice aforethought, Mr. Anosisye moved further to cite decisions of the Court in Charles Bode v. Republic, Criminal Appeal No. 46 of 2016 and Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994. Regarding the defence of the accused, Mr. Anosisye stated that the accused had produced alibi defence without notice in order to abide with the law enacted in the Criminal Procedure Act [Cap. 20 R.E. 2022] (the Criminal Procedure Act) and that his materials show that he testified lies in court, which corroborate the prosecutions case. In support of the move, Mr. Anosisye had cited the decision of the Court in Nkanga Daud Nkanga v. Republic, Criminal Appeal No. 316 of 2013. In the opinion of Mr. Anosisye, the accused in his defence had mentioned his two (2) workmates who witnessed him arrested on 6th January 2024, but had declined to call them as material witness hence this court may draw an adverse inference against him as per decision in Lazaro Kalonga v. Republic, Criminal Appeal No. 348 of 2008. I have scanned the record of instant case, and think that for the case to be resolved, three (3) important questions must be raised and resolved, namely; first, whether there is unnatural death of human person; second, whether the accused has killed the 10 deceased; and finally, whether the accused has killed the deceased with malice aforethought. In the present case, there is a death of human person recorded in exhibit P.l on 8th January 2023 by PW.3. The deceased in the exhibit is called Stella Juma Bhori. However, a dispute arose as whether Stella Juma Bhori exhibited in P.l is the same person displayed in the Information namely Stella Juma and the same person cited in exhibit P.3 as: Khadija Said @ Manyanya (Stella). According to Mr. Obwana, the discrepancies of names show uncertainty as to who exactly had expired and the uncertainty goes to the root of the matter hence faults prosecution's case. In support of the move Mr. Obwana cited precedents in Republic v. Simon Kiles Samwel & Two Others (supra), Magendo Paul v. Republic (supra) and Christina Kale v. Republic (supra). I have read the three (3) cited cases and found that the holding of the case in Magendo Paul v. Republic (supra) is similar to the precedent in Christina Kale v. Republic (supra). In brief, the dual decisions insist on the traditional principle of criminal liability that accused must be convicted of the offence of which he is prosecuted on the basis of strength of the prosecution's evidence. The most quoted paragraphs in the indicate cases is that: ...for a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against ii the accused as to leave only a remote possibility in his favour which can easily be dismissed. I do not need to go further into the precedents for the sake of tight schedules of this court in the criminal sessions hearing. I have already indicated the cited precedents have only produced the traditional principles of criminal liability which are generally accepted and applied by courts of law in our jurisdiction. There are no doubts whatsoever in the application of the principles. The decision of this court in Republic v. Simon Kiles Samwel & Two Others (supra) shows that accused persons were prosecuted for manslaughter of Johnson Kagusa contrary to section 195 and 198 of the Penal Code. After registration of all relevant materials in the case, the name of the deceased came into dispute as to whether he is Jackson Alexander or Johnson Kagusa Msirambo, in relation to the Information registered, Postmortem Report of the deceased (PE.l) and evidence of eye witness Mwita Meki Mbagi (PW2), who had arrested the alleged deceased. At page 24 of the judgment, this court had raised an issue: whether the person arrested at the store by PW2 and handed over to the third accused person is dead. A reply of the question is found at page 33 of the judgment that the names are distinct and give this court hard task to find out a solution. The reasoning of the court is displayed in the same page 33 of the judgment that: 12 I think this is the only reasonable doubt left out by the Prosecution and thus a material discrepancy as who is the deceased? Considering the fact that the said deceased kept on being baptized several names: Jackson Alexander and John Kagusa Msirambo, the identification of the corpse by the PW2 was so essentia/ to bring the culprits into square. This court then went further to produce an obiter dictum at page 25 of the judgment that: if that person was the same, he could even be named as Jackson Alexander @ Johnson Kagusa Msirambo. This obiter dictum is very crucial in the instant case and I will explain it in the due course. In brief, with regard to the complaint of Mr. Obwana on discrepancies of names, he is right. The discrepancies of names of deceased persons may move into the merit of the case and in the indicated case of Republic v. Simon Kiles Samwel & Two Others (supra), the complaint was upheld and this court had resolved that the prosecution had declined its noble role of proving the case beyond reasonable doubt and finally acquitted the accused persons. In the instant case the deceased was named in alternative names. However, there are materials which show thresholds of evidences and series of events from the crime scene which display the lady spotted by PW1 was taken to the centre and was pronounced expired. The sequences of events show that the lady 13 seen at the crime scene is the same who was medically examined at the centre by PW3 and is the same cited in exhibit P.l. Similarly, in the present case the deceased is cited by the accused himself in two (2) alternatives in exhibit P.3. First, when he first met Stella at Musoma and second, when he met her at the Grocery within Majimoto Village in Serengeti District. The wording of the accused found in exhibit P.3 show that: Niliendelea na shughuli za ufundi hapo hapo Musoma ambapo Mwaka 2020 nilofanikiwa kupata mpenzi aitwae Khadija Said @ Manyama maarufu kwa jina ia Stella...Mpenzi wangu Khadija d/o Said maarufu kwa jina la Stella akiwa Grosari. In the circumstances of this case and taking into consideration of the totality of evidences produced during the hearing of the case, it is obvious that the lady who was found assaulted by the accused at the crime scene by PW1 is the same who was examined and found dead at the health centre by PW3 and is the same cited by the accused in exhibit P.3. This court is always directed by the Court of Appeal, in resolving disputes, to consider totality of evidences produced during hearing of cases (see: Enock Kipela v. Republic (supra). This court has been cherishing the move without any reservations (see: Republic v. Chacha Mwita Mohere, Criminal Session Case No. 141 14 of 2022). I think I have to abide with the directives of the Court of Appeal and decisions of this court, when necessary to do so. The precedent in Republic v. Simon Kiles Samwel & Two Others (supra) was decided on its own peculiar circumstances where there is no mention of names in alternatives. Even if the circumstances were similar to the instant case, the decision does not bind this court. This court is empowered to decide cases in accordance to their peculiar circumstances. In this case, the first question on whether there was a death of the deceased, Ms. Stella Juma, receives affirmative reply. Regarding the second question as to who has killed the deceased, a reply is very brief. The prosecution had brought in this case eye witness PW1 who testified to have seen the accused attacking the deceased and exhibit P.3 displays confession statement of the accused and places himself at the crime scene on 7th January 2023. In defence, the accused had produced an alibi species of defence contending that on the day of the incident, he was already in police custody at Mugumu Police Station in Serengeti District. He alleged further that the materials brought by the Republic via witness PW1 to PW6 were based on lies and that he did not appreciate the contents in exhibit P.3. However, the accused had declined to register any relevant material related to his arrest on 6th January 2023 at Majimoto 15 Village, including his two (2) workmates who had witnessed him arrested. The rule of the thumb is that failure to call material witness to corroborate party's evidence may move the court to draw an adverse inference against the party (see: Wambura Marwa Wambura v. The Republic, Criminal Appeal No. 115 of 2019; Stanley James @ Mabesi v. Republic, Criminal Appeal No. 115 of 2022; Republic v. Mroni Samo @ Ryoba, Criminal Sessions Case No. 12 of 2023; and Lazaro Kalonga v. Republic (supra). It is unfortunate in the instant case that the accused had remained silent on application of section 194 (4) of the Criminal Procedure Act [Cap. 20 R.E. 2022]. The cited provision requires accused persons who intend to rely on alibi defence to give courts and prosecution sides notice of intention to rely on the defence before the hearing of the case. In the present case, the alibi defence was produced during the defence hearing, which may be interpreted as afterthought. I have also scanned exhibit P.3 and found that the narrations of the accused and its details produced, and noted that the contents of the exhibit can only be produced by a person who knows the deceased very well and has direct knowledge of the attacking incident at Majimoto Village in Serengeti District on 7th January 2023. 16 This category of defence brought in this case by the accused do not introduce any reasonable doubt in view of the strong evidence produced by the prosecution. The defence of alibi was brought by the accused to deceive this court (see: Edgar Kayumba v. D.P.P., Criminal Appeal No. 498 of 2017; Republic v. Keraryo Rhobi Busere & Another, Criminal Sessions Case No. 31 of 2022; and Republic v. Peter Ntingwa Peter, Criminal Session Case No. 184 of 2022). As I indicated earlier, reading the totality of the evidence brought in the present case, I am convinced that the accused had killed the deceased on 7th January 2023 at Majimoto Village in Serengeti District. However, for the offence of murder to be established, a special intent called malice aforethought must be established. That is where our last question is invited on whether the accused had killed the deceased with malice aforethought. According to Mr. Obwana, if this court finds the accused had killed the deceased, it may go further to scrutinize exhibit P.3 to learn a provocation on part of the deceased. It was unfortunate for Mr. Obwana that he remained silent on contents of the exhibit which display provocation. On the other hand, Mr. Anosisye has produced two (2) decisions of the Court in Charles Bode v. Republic (supra) and Enock Kipela v. Republic (supra) contending that malice aforethought is established by nature of the attacks directed to the deceased. 17 According to him, the accused in the present case has killed with malice aforethought as: first, the accused used panga in assaulting the deceased; second, he inserted a large amount of force to cut the deceased until bones of the body were displayed; third, he attacked at sensitive parts of the body back of the neck and hands; fourth the accused repeated his attacks in a number of blows against the deceased; and he escaped the crime scene for hiding in the bushes. I have had an opportunity to read the dual decisions of our superior court. The decision in Charles Bode v. Republic (supra), at page 20 of the judgment, shows that: The decision of the Court in the case of Enock Kipela Vs Republic, Criminal Appeal No. 150 of 1994, is very instructive when it comes to the question of ascertaining as to whether the killing committed by the appellant was' done with malice aforethought or not The precedent of Enock Kipela v. Republic (supra), at page 6 of the judgment, shows in brief, that: ...usually an attacker will not declare his intention to cause death or grievous bodily harm. The intention of accused must be ascertained from various factors, including the following: 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. 18 From the facts of the instant case derived from PW1 and exhibits P.3, the accused used lethal weapon panga, attacked sensitive part of the body, neck and hands several times with large amount of force to cause multiple wounds to display human bones. By reading out the actions of the accused in isolation with other material facts of the case, it is obvious that he has killed the deceased with malice aforethought. However, in the indicated precedent of Enock Kipela v. Republic (supra), after listing the conditions at page 6, the Court moved further to place two (2) important clauses: first, at page 5 of the judgment, that each case must be decided on its own peculiar facts, and second, at page 6 of the judgment, that in the totality of the evidence on record, there must be no room for more than one view as to the accused's intent (malice aforethought). Finally, the Court had resolved that: if there is doubt on the intention (malice aforethought) of the accused, the doubt is to be resolved in favor of the accused. In the present case, the record shows that the accused had used sharp weapon panga which was in the flowers next to their conversations. It is the cited conversations which are alleged to have caused provocation on part of the accused. In brief, the weapon was not prepared by the accused to display premeditation. The record shows that the accused met the deceased at the grocery by surprise 19 and the dual agreed to visit the accused's residence. After arrival at the residence, the conversations continued and in the course of conversations, the dual could not appreciate each other, which may have caused provocation on part of the accused. The materials in exhibit P.3 show that: ...mpenzi wangu huyo a/ianza kunie/eza ya k warnba anataka kuondoka hivyo nisimtafute tena na hata nyumbani kwao hataki wamtafute, mimi ni mwanaume gani nakua namfuatiiia fuatilia na kwa kuwa ugonjwa wake umeisha haina haja ya kuendelea kuwa na mimi. Niiipata hasira na ndipo nikachukua panga Hiiiokuwa hapo kwenye maua... (Emphasis supplied). The question could be whether the words: mimi ni mwanume gani nakua namfuatiiia fuatilia na kwa kuwa ugonjwa wake umeisha haina haja ya kuendelea kuwa na mimi may have caused provocation on part of the accused. In my considered opinion, the words share similarities with the words recorded in the case of Republic v. Godfrey Francis Mwesige, Criminal Session Case No. 58 of 2017, which show that: wewe ni mwanaume gani nakulisha ki/a siku. Sasa nina mwanaume mwingine anataka kunioa. In the precedent of Republic v. Godfrey Francis Mwesige (supra), the words were held to be powerful dynamite sufficient to blow off the faculty of reasoning to cause a heat of passion for the accused to enjoy the defence of provocation of killing his girlfriend. 20 I am aware that the defence of provocation to stick, it must pass the objective test of whether an ordinary man in the community to which the accused belongs would have been provoked in the circumstances (see: Damian Ferdinand Kiula & Charles v. Republic [1992] TLR 16). In the instant case, I believe the words, to a Kurya tribe young man may trigger provocation (see: Republic v. Thomas Kibayi @ Mwita, Criminal Session Case No. 156 of 2022). In the precedent of Republic v. Thomas Kibayi @ Mwita (supra), the words: usinisumbue, nenda kamuuiize Mama yako ujinga huo, pronounced by a girl of Kurya tribe to a boy of the same tribe of Serengeti District in Mara Region were considered as insult of highest order to cause provocation on part of the boy. In the present case, exhibit P.3 shows that the accused is a Kurya tribe young man aged twenty- six (26) years. The standard invited and applied in the indicated precedent of Republic v. Thomas Kibayi @ Mwita (supra) may also be invited in the instant case to cherish the directives of the Court in the precedent of Damian Ferdinand Kiula & Charles v. Republic (supra). Finally, the Republic has declined the flavor of contents of extra judicial statement recorded by Hon. Ginene which was spotted in investigation file of the accused by PW5. The Republic has decided to remain mute on the subject to escape scrutiny of this court. 21 According to the Court of Appeal, upon an accused intimating to make a confession, the safest course to adopt is to have him repeat his statement before a justice of peace (see: Bushiri Mashaka & Three Others v. Republic, Criminal Appeal No.45 of 1991). This court has been cherishing the move without any hesitation (see: Republic v. Mokiri Wambura @ Makuru, Criminal Session Case No. 70 of 2022 and Republic v. Massanja Karume@ Mohamed & Another, Criminal Session Case No. 13 of 2018). In brief,^he Republic has escaped the safest course. It cannot insist on malice aforethought while itself produces doubts by declining the directives of the apex court. Taking consideration of the same principle of totality of materials brought by the parties in resolving disputes, one cannot say the Republic has established malice aforethought in the present case. In the circumstances of the present case, I am satisfied that the prosecution has failed to prove malice aforethought as per required standard set in the precedent of Enock Kipela v. Republic (supra) hence I hold that the accused, Mr. Ibrahim Abdul @ Chacha, had killed the deceased, Ms. Stella Juma, without malice aforethought. In conclusion, I convict the accused with a lesser offence of manslaughter contrary to sections 195 and 198 of the Penal Code. Ordered accordingly. 22 Right of appeal explained to the parties. ^===========^~ — —— Judge 18.11.2024 This Judgment was pronounced in open court in the presence of the accused, Mr. Ibrahim Abdul @ Chacha and his learned Defence Attorney, Ms. Mary Samson and in the presence Mr. Lusako Mwaiseke, learned State Attorney for the Republic. F.H. Mtfulya Judge 18.11.2024 ANTECEDENTS Mwaiseke: My Lord, for the Republic, we have no previous criminal record of the accused. However, this is a serious offence of killing human being by use of panga. My Lord, the Tanzania Sentencing Guidelines, 2023 places this kind of offence at the penalty from ten (10) years to life imprisonment. My Lord, we pray this court to consider that. My Lord, the deceased has killed a vulnerable species of human person, woman. My Lord, this accused may be sentenced up to hundred (100) years. This court may do that to send a lesson to accused persons like the present one. My Lord, I pray to submit. F.H. Mtulya Judge 18.11.2024 23 MITIGATIONS Samson: My Lord, I pray for a short leave of the court to consult the accused. F.H. Mtulya Judge 18.11.2024 Court: Prayer granted. Order: Ms. Samson is granted five (5) minutes leave to consult his client. F.H. Mtulya Judge 18.11.2024 Samson: My Lord, I thank you. I have consulted my client. My Lord, we pray for a lenient sentence. We have reasons, namely: l. This is the first offence to be committed by the accused which shows that he is not habitual offender; 2. The accused confessed commission of the offence immediately after his arrest by the police. He regrets for the offence to have occurred; 3. The Tanzania Sentencing Guidelines, 2023 shows that first offenders who admit their offences, may receive one-third of the required penalty; 24 4. The accused was in custody for one (1) year, ten (10) months and three (3) weeks awaiting his trial. My Lord, the time spent in custody may be deducted from his sentence; 5. The accused has a family which depends on him. His parents are more than fifty (50) years and all depend on him; and 6. The attack emanated from provocation of the words produced by the deceased. My Lord, the deceased had contributed to his death. My Lord, that is all from the defence. F.H. Mtulya Judge 18.11.2024 Court: Sentencing Order shall be delivered in ten (10) minutes. Parties are ordered to wait for the order in this open court. It is so ordered. F.H. Mtulya Judge 18.11.2024 COURT RESUMES Mwaiseke: My Lord, we are ready for the Sentencing Order. F.H. Mtulya Judge 18.11.2024 Samson: My Lord, we are also ready. F.H. Mtulya Judge 25 18.11.2024 Accused: I am also ready My Lord. F.H. Mtulya Judge 18.11.2024 SENTENCING ORDER Mr. Ibrahim Abdul Chacha (the accused) was arraigned in this court for allegation of murder of Ms. Stella Juma (the deceased) contrary to sections 196 and 197 of the Penal Code [Cap. 16. R.E 2022). After registration of all relevant materials, the accused was found guilty to the lesser offence of manslaughter contrary to sections 195 and 198 of the Penal Code. However, before sentencing the accused, this court invited the learned minds in Mr. Mwaiseke for the Republic and Ms. Samson for the Defence to register antecedents and mitigations respectively. According to Ms. Samson, the accused may receive lesser sentence for reasons that he: is the first offender; confessed the offence; spent more than a year in custody; his family depends on him; and he was provoked by the deceased. On the other hand, Mr. Mwaiseke submitted that the Republic has no previous criminal record of the accused, but the accused has committed a serious offence of killing human being by use of panga hence may be sentenced as per Tanzania Sentencing Guidelines of 2023. In his opinion, the accused may be sentenced from ten (10) 26 to hundred (100) years as he had killed the deceased, who is vulnerable species of human person. I have heard the parties' submissions in the instant case, and considered both the antecedents and mitigations. However, the law as enacted in section 195 of the Penal Code was followed by its associate sentence in section 198 of the same law. The provision in section 198 may attract up to life imprisonment. However, today we have the Tanzania Sentencing Guidelines 2023, which has categorised the offence of manslaughter into three (3) levels, of high, medium and low, as it is reflected at page 37 of the Sentencing Guidelines. The use of dangerous weapon panga is pegged at the high-level of manslaughter. The Guidelines on the other hand shows that maximum sentence should only be imposed when the offence comes close to the worst of its type and should rarely be imposed on first offender (see: Item (f) and (I) in General Principles of Sentencing as reflected at page 2 and step 1 in Sentencing Process as reflected at page 16 of the Guidelines). In the circumstances, the accused is placed at high level manslaughter and can be imprisoned from ten (10) years to life imprisonment. This court had resolved so in the precedent of the Republic v. Ryoba Mwita Mseti Criminal Session Case No. 149 of 2022. In the case, Mr. Ryoba Mwita Mseti had attacked the deceased with knife 27 on stomach to cause death of the deceased and was sentenced to serve ten (10) years imprisonment. In the present case, the accused had attacked the deceased by using lethal weapon panga and attacked sensitive part of the body neck and hands several times with large amount of force to cause multiple wounds to display human bones. Such attacks leave a lot to be desired. In the end, I am moved to sentence the accused to fifteen (15) years imprisonment from today to discourage persons who take laws into their own hands to cause death to other human persons. The accused enjoys the right to appeal and may wish to do so if aggrievedLb^-ttie decision and sentence of this court. L F.H. Mtulya ) Judge DS O^. 18.11.2024 This Sentencing Order was pronounced in open court in the presence of the accused, Mr. Ibrahim Abdul Chacha and his learned Defence Attorney, Ms. Mary Samson and in the presence Mr. Lusako Mwaiseke, learned State Attorney for the Republic. H. Mtujya Judge 18.11.2024. 28