Halima Mhina

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI CRIMINAL SESSIONS CASE NO. 13939 OF 2024 REPUBLIC VERSUS HALIMA MHINA ATHUMAN................................. 1st ACCUSED PERSON ZAINABU ISSA SANKA....................................... 2nd ACCUSED PERSON HADIJA ISSA SANKA......................................... 3rd ACCUSED PERSON JUDGMENT 28th August & 03rd October, 2024 KAMUZORA, 3 Halima Mhina Athuman, Zainabu Issa Sanka, Hadija Issa Sanka were jointly aligned before this court for the offence of murder contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E 2022]. It was alleged that on the 2ndday of February, 2023 at Mbigiri-Kimana village, within Kiteto District in Manyara region, the accused persons did murder one Peter Mwaluko Chigodi @ Peter Marco @ Fuso. Page 1 of 42 When the information was read over and explained to the accused persons, they both pleaded not guilty. Hence the matter proceeded to a full trial. At the hearing of the matter the republic was represented by Ms. Blandina Msawa and Mr. Leonce Bizimana learned state attorneys. Messrs. Joseph Mwita Mniko, Filimon Maige and Abdallah Kilobwa learned advocates represented the 1st, 2nd and 3rd accused persons respectively. In attempt to prove its case the prosecution paraded 10 witnesses and tendered eleven exhibits. The accused persons were the sole witnesses for the defense and did not tender any exhibit. Before determining if the case was proved to the required standards, I find it necessary to recap briefly the evidence from both sides starting with the prosecution evidence. PW1 ASP Magengeli Paul Mtinginya is a police officer previously working at Kiteto district. He testified that, on 06/02/2023 he received a phone call from the village chairman of Kimana village one Yohana (PW3) that there was a human body found in the bush. PW1 accompanied by PW3 (the village chairman), PW8 (a medical doctor) and other police officers went to the scene. On arriving there, they found part of human body from the stomach to the thighs with no head, chest, hands and legs. According to PW1, they were able to identify that piece of body to be of a male person Page 2 of 42 because it had penis. PW1 drew a sketch map of the crime scene and allowed the doctor, PW8 to examine the said part of the body and collected samples from the body for further investigation. That, the doctor collected pubic hair and body fluids for purposes of laboratory test upon relatives being found. PW1 further testified that after all processes, the body was buried but before they left, they interrogated people who were at the scene and informed them that the matter was still under investigation. He gave out his mobile phone number for any person to report on the identity of the deceased and the person responsible for the murder. That, on 13/04/2023, PW1 received a phone call from an informer that the body recovered was related to the deceased who went missing since February, 2023. That, PW1 verified the information to be true for it was confirmed that the deceased went missing. That, he made follow up and discovered that the deceased was residing at Mbigiri and was married to the 1st accused person and they were living with the 2nd and 3rd accused persons. That, they arrested the accused persons and upon interrogating them, they confessed to have killed the deceased. That, the 1st accused person confessed to have cut the deceased into pieces by using an axe and carried some of the pieces using a bucket and part of the body using a bicycle. That, on 24/04/2023 search Page 3 of 42 was conducted at the accused's house and the axe, bicycle and bucket were seized therefrom. The seizure certificate and search order were admitted as exhibit PEI while the bicycle was admitted as exhibit PE2, bucket as exhibit PE3 and axe as exhibit PE4. That, at the police station, PW1 handled the seized items to the exhibit keeper one CPL Ramadhani and they both signed the chain of custody form which was admitted as exhibit PE5. PW1 also testified that, on 04/06/2023 he summoned the deceased's sister one Dora Mwaluko in order to collect sample for DNA test to see if she was related to a person whose body was recovered way back in February. That, he sent her to Kiteto District hospital and the doctor collected samples from her and handed it to PW1. That, on 28/10/2023 he received a letter from the government's chemist requesting for new samples because the prior samples could not give results. That, on 02/11/2023 PW1 sought for an order to exhume the body in order to collect new samples. That, upon obtaining the order, the body was exhumed in the presence of the hamlet chairman (PW3) and other villagers and again the doctor, PW8 collected a piece of bone from the body and they reburied it. That, PW1 summoned the deceased's sister (PW2) from Dodoma and sent her again to the district hospital to collect new samples. That, the doctor collected blood and kept it Page 4 of 42 on the gauze and test tube and handled it to him. That, on 12/12/2023 he instructed Inspector Evarist to take the samples collected for the second time to the government's chemist. He tendered the chain of custody form evidencing the handling of the samples and the same was admitted as exhibit PE7. Upon being cross examined, PW1 added that the body was recovered at Kimana village at an area bordered to Mbigiri village. That he was the one who issued search order because he was the acting OCS. That, the accused persons were interrogated before search was conducted. That, the conducted search based on the 1st accused's statement and the recovered the items she mentioned in her statement. PW2 Dora Mwaluko Chigodi testified that the deceased was her brother. They parted ways in 2000 when the deceased left home in search of better life, leaving behind a wife and a child by the name of Msafiri. PW2 narrated that in 2019 she got information that her brother was residing at Kiteto thus, she arranged and visited him at Kiteto. That, she visited her brother because she wanted know if he was still alive and to inform him of the death of their mother. That, she found the deceased married to the 1st accused person and they had a child by the name Kassim Peter and were Page 5 of 42 also living with two daughters of the 1st accused; Hadija and Zainabu, the 2nd and 3rd accused persons. PW2 further testified That, she stayed with them for a week before she travelled back home but the 1st accused advised the deceased to travel with PW2 to their home to pay respect to the death of their mother. That, they agreed to keep in touch and the last time she communicated with the deceased was in January, 2023. That, sometimes later, she was phoned by the deceased's friend asking if the deceased was at Dodoma for his wife (the 1st accused person) informed him that he had travelled to Dodoma. That, after receiving such information, they called for family meeting and agreed for her brother and the deceased's son to travelled to Mbigiri where the deceased was residing in search of him. That, they went back home with a negative answer for they were unable to find the deceased. PW2 further testified that later she was later phoned by the deceased's friend who informed her that the 1st accused person was arrested and sent to the police station accused of the murder of Peter Mwaluko (PW2's brother). That, PW2 travelled to Kiteto on the next day and went to the police station where she was informed by the police that the 1st accused person confessed to have killed the deceased. That, on 04/06/2023 she was Page 6 of 42 informed by the police that they wanted samples from her to test if she was related to the deceased. That, the samples were collected from her and she went back home. That, later on 9/12/2023 she was phoned again by the police and informed that more samples were needed. She was taken to the hospital and blood sample was collected and put on the gauze and test tube. PW3 Yohana Manyendo Lemuteu testified that he is a chairman at Kimana village. That, on 06/02/2023 he was phoned by the ten-cell leader informing him that part of human body was seen at Norikunjuri hamlet within Kimana village. That, he went to the scene and found many people and he saw the part of human body which had started swelling and he concluded that it was of male person because it has a penis. That, the body was found near the canyon, a place bordered to Mbigiri village so even villagers from Mbigiri appeared at the scene. That, they waited for the police and after their investigation, the body was buried in that area after PW3 confirmed that the land was owned by the village. That, sometimes later, PW3 received a phone call from the police who informed him that they wanted to exhume the body in order to collect samples. That, PW3 witnessed the exhumation of the body and a bone was collected. Page 7 of 42 PW4, Inspector Evarist Tarimo is a police officer working at Kibaya Kiteto. He testified that he was tasked to take the samples related to the case at hand to the government's chemist at Dar es Salaam. That, PW4 collected the samples from the exhibit keeper namely; a bone, gauze with clotted blood and the test tube with blood which were marked A, B and C respectively. That, at Dar es salaam, he gave the samples to Leonidas, the government's chemist and they both signed the chain of custody. That, Leonidas issued him a letter acknowledging to have received the samples. He identified exhibit PE6 as a chain of custody form which he signed showing that he received the bone from CPL Ramadhani and it is the same form which he used to handover the samples to Leonidas. He also identified exhibit PE7, a chain of custody showing that he received blood samples from Dr. Nasoro and handover the same to the government chemist at Da es salaam one Leonidas. On cross examination, PW4 admitted to have not tendered the letter and police form used to handover the samples to the government chemist. PW5 G. 7237 CPL Ramadhan Rashid Tira is a police officer working at Kibaya Kiteto. He testified that on 24/06/2023 he received from PW1 one axe, one bucket and one bicycle for custody. That, the said items were Page 8 of 42 related to the case at hand which was registered as Kibaya/IR/214/2024. That, the handover was done by filling and signing the chain of custody and the items were also registered in the exhibit register, PF No. 16 for 2023. PW5 further testified that on 27/11/2023 he was received another exhibit, a piece of bone by ASP Mtinginya (PW1) which was also related to the same case as other previous items and they signed the chain of custody. That, on 12/12/2023 he handed over the items to Inspector Evarist (PW4) to take them to the government's chemist. That, on 22/8/2024 he handed over the items related to this case; one bucket, one axe and one bicycle to PW1 for him to bring them to the court. He was shown exhibits PE2, PE3 and PE4 which he identified as the same items he handed over to PW1. He added that all handover was done by signing chain of custody. PW6 WP 6861 D/CPL Neema Yese Machota, a police officer working at Kiteto Kibaya police station narrated that on 22/04/2023 at 01:00hrs she was directed by PW1 to accompany other police officers namely CPL Meshack and CPL Cleopa to go to Mbigiri to arrest the accused persons in this case. That, they started the journey to Mbigiri at 02:00hrs and passed at the village chairman who led them to the accused persons' house. That, they arrested the accused persons and arrived at Kibaya police station at 3:55hrs. That, Page 9 of 42 she handed the accused persons to CPL Elizabeth who was on duty at the police charge room who detained them in the police cell. That, when she handed the accused persons to CPL Elizabeth, they were both of good health. PW7 WP 8162D/CPL Tajiri Ally Manuh is police officer working at Kibaya Kiteto police station and an investigator in this case. She testified that on 22/04/2023 she was assigned to record the 1st accused's cautioned statement. That, she prepared necessary items, complied with all other legal requirements and informed the 1st accused person of her rights before she recorded her statement. That, the 1st accused person was ready to record the statement without calling anyone and she started recording the statement at 06:17hrs and finished at 08:15hrs. That, she recorded the statement in form of cautioned statement and they both signed the statement which was admitted as exhibit PE8. That, during interrogation, the 1st accused confessed to have murdered her husband using axe on 02/02/2023. That, she also confessed to have cut the deceased's body into pieces and threw them into the canyon. PW8 Nassoro Bakari Ndwellah is a medical/clinical doctor from Kiteto district hospital. He testified that on 06/02/2023 he accompanied the police officers to the scene and upon arrival, they encountered bad smell and saw Page 10 of 42 part of the human body. According to PW8, it was part of human body below the ribs to the part above the knees. That, he observed the body and discovered that it was of the male person since the male organ (penis) was vividly seen. That, he was also instructed by the OC/CID (PW1) to collect samples from the body and he collected pubic hair and body fluids from that part of body for test if the relatives will be found. That, he handed the samples to PW1 and the part of body was buried. That, PW8 prepared the report on post mortem examination which was admitted as exhibit PE9. PW8 testified further that, the part of body recovered had no head, chest and the legs were cut above the knees. That, at the time he examined the body, it had started to decompose and was full of maggots. PW8 also testified that on 04/06/2023 he was instructed by the doctor in charge to collect samples for DNA analysis from Dora Mwaluko (PW2) who was accompanied by the OC/CID (PW1). That, he collected blood sample and kept it in the test tube and sample by stick swab. That, he handed the samples to PW1 who later handed them back to PW8 for storage. That, he kept the samples until 11/07/2023 when they were sent to the government's chemist. That, on 27/11/2023 he was accompanied the police officers to exhume the body which was buried for purpose of collecting samples again. Page 11 of 42 That, the body was exhumed in the presence of the village chairman (PW3) and he collected thigh bone therefrom and handed it to PW1 and the body was reburied. He identified exhibit PE6 as the handover form, he signed while handing over the samples. PW8 testified further that on 09/12/2023 he collected new samples from PW2 Dora Mwaluko for DNA test. That, he collected blood from PW2 and kept it on the sterilized gauze and test tube. That, he handed the samples to PW1 but he returned them to him for safe keeping since police had no proper place to keep those kinds of samples. That, he kept the samples until 12/12/2023 when PW4 collected and sent them to the government's chemist. He identified exhibit PE7 as the form he signed in handing over the samples. PW9 G. 5310 CPL Mussa Zakaria Sadick, a police officer working at Kibaya Kiteto police station testified that on 22/4/2023 he was assigned to interrogate the 2nd accused person one Zainabu. That, he started recording her statement at 07:30hrs after he had informed her of her legal rights and they finished recording the statement at 08:30hrs. That, the 2nd accused person narrated to him that on 02/02/2023 at night hours she heard her father (the deceased) screaming and she asked her mother (the 1st accused) Page 12 of 42 I what was going on. That, the 1st accused informed her that she should not involve herself. That, on the next day on 03/02/2023 the 2nd accused asked her brother Kassim of what had happened and Kassim told her that their mother killed their father with an axe. That the 2nd accused confessed to have assisted the 1st accused person in carrying the body by a bicycle and disposing it in the canyon. The statement of the 2nd accused was tendered and admitted as exhibit PE10. Upon being cross examined, PW9 added that the 2nd accused did not confess to the murder rather she confessed to have been involved in carrying the body and throwing it out. That, she informed him that her brother Kassim is disabled for he cannot walk and had mental disorder. PW10 Leonidas Daniel Michael is the government chemist working at the government chemist laboratory at Dar es Salaam. He explained in detail the procedures of DNA profiling and analysis. He testified that on 14/07/2023 while at the office with his fellow chemist one Roda Nzamba they received package with samples from Inspector Ally labelled with No. KIB/IR/214/2023 and it was accompanied by the police form PF 180 dated 11/07/2023 and a letter from police Kiteto requesting for DNA test. That, they discovered that samples were not properly stored thus, they got damaged. That, they Page 13 of 42 requested for new samples on 02/10/2023 and the same were submitted to them on 12/12/2023; human bone and blood. That, they received new samples from Inspector Evarist (PW4) accompanied with a letter from Kiteto police dated 11/12/2023 and police form No. 180 dated 11/12/2023 for DNA test. That, the samples were registered with the same number as the samples received on 11/07/2023 for they were additional samples. PW10 further testified that after DNA profiling test, he discovered that the bone was from human body of a male person and blood was from a female person. He added that they compared the DNA samples from the bone and from the blood and discovered that they were related. That, he prepared a report and the same was signed by the acting director from of the forensic science service. The forensic DNA analysis profiling test report was admitted as exhibit PE 11. After PWlO's testimony, the prosecution case was closed and this court upon being satisfied that a prima facie case was established against both accused persons, called upon the accused persons for the defence. The accused persons being led by their advocates opted to defend themselves and presented no witness or exhibit. Page 14 of 42 DW1 Halima Mhina Athuman testified that she was living at Mbigiri village with her husband Peter Mwaluko (the deceased) from 2000 to 2023. That, before she was married to the deceased, she was married to Issa Sanka and had two children; Hadija and Zainabu (the 2nd and 3rd accused persons). That after her first husband left her and died, she married the deceased. That, in early December, 2022 the deceased told her that he was travelling to his home at Dodoma Mvumi for holiday and returned on 20/04/2023. That, she was arrested on 21/04/2023 at night by police officers and sent to Kiteto police station alongside with her two daughters; the 2nd and 3rd accused persons. That, they arrived at the police station at l:00hrs and were detained in lock up until morning on 22/04/2023. That, at about 09:00hrs the police officer by the name of Tajiri (PW7) started recording her statement until 13:00hrs. DW1 further testified that when the deceased travelled to Dodoma, she was communicating with him until March, 2023 when she missed his contact. That, when she was arrested her husband had not returned home yet. That, at the police station she was informed that she was charged for the murder of the deceased. She claimed that she was not aware of the Page 15 of 42 deceased's death and prayed for this court to set her free as she knows nothing about the deceased's death. On cross examination DW1 admitted that she guessed the time her statement was recorded. She also admitted to have recorded in her statement that she killed the deceased. She however claimed that she was beaten up to confess but did not inform the court before if she was beaten. DW2 Zainabu Issa Sanka testified that the deceased was her stepfather and the last time she saw him was in December, 2022 for she was informed that he travelled to Mvumi, Dodoma. That, she came to know of the deceased's death on 21/04/2023 at 23:00hrs when she was arrested by the police officers together with the 1st and 3rd accused persons. She claimed that they arrived at the police station at l:00hrs and she recorded her statement on 22/04/2023 at 19:00hrs. She stated that she guessed the time on which she recorded her statement for it was evening. She prayed for acquittal claiming that she did not commit the offence. On cross examination, DW2 added that the deceased was her step father who took care of her until she got married and that they lived happily. That, they had good communication and she never had conflict with the Page 16 of 42 deceased. That, the bicycle brought in court is their home property as they used it to fetch water but she knew nothing about the axe and the bucket. DW3 Hadija Issa Sanka, testified that the first accused Halima Mhina is her mother, while the second accused Zainabu is her younger sister. That, she was arrested on 21/04/2023 at 23:00hrs at her mother's house where she went for preparation of Eid holiday which was supposed to be on 22/04/2023. That, they were sent to Kiteto police station where she was interrogated after a week. That, she came to know about the deceased's death after being arrested and could not remember the last time she saw the deceased. She prayed to be acquitted as she knew nothing about the deceased's murder. On cross examination, DW3 added that they were arrested on 20/4/2023 at 23:00hrs and arrived at the police station at l:00hrs. After conclusion of the defence case, parties had a chance to make final submissions. The learned counsel for the parties opted for written submissions and they dully filed their respective closing submissions which will be considered in the course of determining issues arising in this case. From the evidence in records, the following are issues that need determination; Page 17 of 42 1. Whether DNA report and cautioned statement for the 1st accused person are reliable evidence. 2. Whether, all elements o f the offence o f murder was proved beyond reasonable doubt. The first issue intends to settle the argument raised by the defence side touching the weight of the DNA report and cautioned statement of the 1st accused person. The defence side prayed for the DNA report and the cautioned statement for the first accused person to be disregarded for failure to meet legal requirements. Starting with the DNA report, the counsel for the 2nd accused person faulted the whole process of DNA analysis on account that the government chemist who was paraded in court one Leonard Daniel Michael (PW10) failed to prove if he was the one who received and analysed the samples. That, PW10 was unable to tender the sample receipt notification and the DNA report does not show his name as the person responsible for the analysis. On the argument that sample notification receipt was not issued, the counsel for the 2ndaccused was unable to point out the provisions of the law governing issuance of sample notification receipt. This court therefore finds this argument baseless. On the argument that PW10 was not named in the report, it is true that exhibit P ll does not show if PW10 was responsible for Page 18 of 42 I sample analysis and such fact was also admitted by PW10 in his evidence. He however explained that despite his name not being indicated in the report, he participated in receiving and analysing the samples together with Rhoda Nzamba whose name is indicated in the report. The chain of custody (exhibit PE6 and PE7) supports the fact that he is the one who received the samples from Inspector Evarist hence, part of the team responsible for receiving and analysing the samples. Although the defence counsel did not point out the provision of the law, it is clear that Human DNA collection, transfer and analysis is governed by the Human DNA Regulations Act of 2009. It is without doubt that, the procedures for sample collection, transfer and analysis prescribed under the above law were complied with. There is no dispute that PW10 is the analyst from the government chemist office therefore, an expert in sample analysis. There is no dispute that he is the one who received the samples and that is evidenced by exhibit PE6 and PE7. Although the report tendered does not show if he was the one who analysed the sample, his oral account undoubtedly proves that he, and his colleague who signed the report, dealt with the samples in question as a team. It must be noted that, exhibit PE10 is an expert report to which any competent officer from the office of the Page 19 of 42 government chemist which issued it can clarify on its contents. Since there is no dispute that the report came from the government chemist office and PW10 is a capable officer from that office, this court finds that he can tender the report and being cross examined upon the contents of the report. The records are clear that PW10 was well cross examined on the report and responded effectively. Although I agree that his name is not in the report, I see no reason to doubt his oral evidence that he dealt with the sample in his position as government chemist. His evidence also corroborates the chain of custody proving that he received the samples. As regard to the cautioned statement (exhibit PE8), Mr. Mniko, learned counsel for the 1st accused urged this court not to consider it for the reason that there was no extra judicial statement or evidence from the justice of peace to corroborate it. To him, the justice of peace was a very important witness to corroborate the cautioned statement and prayed for this court to draw adverse inference due to prosecution's failure to parade the justice of peace before this court. Reference was made to the cases of Azizi Abdallah Vs Republic, [1991] TLR 72, Mashimba Dotto @ Lukubanija Vs Republic, Criminal Appeal No. 317 of 2013 (unreported). He added that the modality in which the statement was recorded raises doubt because it was Page 20 of 42 recorded in past tense as if the 1st accused person was prior interrogated by a different police officer. In her submission, Ms. Msawa, learned state attorney insisted that the 1st accused made the statement voluntarily and her voluntariness in recording the statement was not raised before but during defence hence, an afterthought. To buttress her arguments, she referred the case of Nyerere Nyague vs Republic (Criminal Appeal No. 67 of 2020) [2012] TZCA 103 Tanzlii. I have considered the arguments by the defence counsel regarding corroboration of the cautioned statement and testimony of the justice peace. It is unfortunate that he was unable to point out the law which sets the condition that cautioned statement must be corroborated by extra judicial statement for it to stand as evidence in court. In fact, nothing imposes such requirement. What is necessary is for the court to assess the manner under which the cautioned statement was recorded; compliance with the legal procedures and voluntariness of the accused person. Starting with compliance with the procedures in recording the cautioned statement, PW7 clearly explained in her evidence on the steps she took before, during and after recording the statement for the 1st accused. Page 21 of 42 She testified that, she first prepared all items needed for recording the statements and the interrogation room before she started the interrogation. She introduced herself to the 1st accused and informed her of her legal rights to call a friend, relative or advocate to be present when recording her statement. The 1st accused opted to record her statement without any of the people mentioned. PW7 cautioned the accused before she started recording her statement and indicated the time for starting and finishing the interview. Although the objection was raised regarding the time for recording the statement, that was so resolved and this court was satisfied that the statement was recorded within the time specified by the law. The evidence from the prosecution side proves that the accused was arrested at 03:00hrs and arrived at the police station at 03:45hrs. Such evidence was corroborated by the unobjected cautioned statement of the 2nd accused (exhibit PE10) who confessed that they were arrested at 03:00hrs. The prosecution evidence and the 1st accused's cautioned statement shows the interview started at 06:17hrs and ended at 08:51hrs. While the 1st accused never mentioned in her statement the time they were arrested, the 2nd accused mentioned that they were arrested at 03:00hrs thus, corroborating the prosecution evidence. Therefore, the 1st accused's contention that she Page 22 of 42 was arrested at 01:00hrs and her statement recoded after the lapse of four hours is unfounded. It is also clear that after PW7 had recorded the statement, she certified it and asked the accused to sign at every page of the statement by thumb print. Those are basic procedures in interviewing and recording cautioned statement. The contention by the defence counsel that the statement was recorded in past tense is baseless for he was unable to point out the provision of the law that was contravened. On the voluntariness in recording the statement, the evidence reveals that the 1st accused voluntarily gave her statement. Nothing shows that she was forced or coerced in giving her statement and the claim that she was beaten to confess was an afterthought for it was neither raised during the tendering of the statement nor during examination in chief. She raised such claim during cross examination thus, it carries little weight as compared to the strong prosecution evidence showing that she voluntarily gave her statement. From the above discussion, this court is satisfied that PW7 complied with all legal requirements in recording the 1st accused's cautioned statement and she voluntarily gave her statement. Page 23 of 42 From the above discussion, I find the first issue in affirmative that DNA report and cautioned statement for the 1st accused person are reliable evidence. The second issue on whether all ingredients of the offence of murder were proved beyond reasonable doubt, this court considered the law and evidence in totality. The ingredients of the offence of murder are found under section 196 of the Penal code [Cap 16 R.E 2022] and they were well expounded in different case laws. In the case of Laurent Kisingo v Republic Criminal Appeal No. 123 of 2013 Court of Appeal of Tanzania at Arusha (unreported) while expounding the above provision pointed out three elements to be proved in the offence of murder. It stated; "It is now settled law that for the offence o f murder to be proved; three Ingredients have to be established. One, that the person is dead. Two, it is the accused who killed the deceased. Three, the killing was done with malice aforethought. "[Emphasis added]. See also, the case of Anthony Kinanila and another Vs Republic, Criminal Appeal No. 83 of 2021, [2022] TZCA TanzLii cited by the counsel for the 1st accused person in his final submission. Page 24 of 42 Starting with the first ingredient, the issue is whether Peter Mwaluko Chigodi is dead. The evidence on record reveals that only part of human body was recovered which is the abdomen below the chest and the part above the knees with no head, chest, hands or legs. Such body part had penis indicating that the recovered part of the body was of a male person. No one was able to identify that part of the body because without head or other special identity marks, the identification was impossible. The only available evidence linking the recovered part of the body with Peter Mwaluko is the DNA profiling test and the confession by the 1st and 2nd accused persons. On this aspect, we have evidence of seven witnesses from the prosecution side; the doctor who collected the samples, Dora Mwaluko whose sample was compared with the sample from the recovered part of the body, three police officers who were involved in collecting the samples, keeping and transporting the samples to the government chemist, the village chairman who witnessed sample collection and the government chemist who analysed the samples. They explained on how the samples were collected from recovered part of the body and from Dora Mwaluko, transferred and analysed to get the end results. The DNA test was conducted on the Page 25 of 42 recovered part of the body and Dora Mwaluko and the DNA profiling test report (exhibit PE11) shows that the DNA profile matched showing that the body recovered and Dora Mwaluko were blood related. From the prosecution evidence, the part of the body that was recovered was that of Peter Mwaluko. In his closing submission, the counsel for the 1st accused person categorically noted that the defence side had no dispute over the death of Peter Mwaluko save for people responsible for his death. Apart from the DNA profiling report, the evidence reveals that Peter Mwaluko got missing and sometimes later, part of human body was recovered. According to the report on postmortem examination (exhibit PE9), it was the body of a man with no head, upper limbs and chest and its legs were cut at 1/3 distal of the thighs. All the defence witnesses admit that Peter Mwaluko is nowhere to be found. When testifying in court, the 1st accused agreed to have confessed to the police that she killed Peter Mwaluko and the 2nd accused admitted to have confessed to the police that she assisted the 1st accused in disposing the body. Their statements were admitted in court as exhibits. It is clear from her statement (exhibit PE8) that the first accused confessed to have killed her husband and disposed the body at the canyon Page 26 of 42 area. She confessed to have asked the 2nd accused to assist her in pushing the bicycle which she used to carry part of the body to Kimana village and such fact was also corroborated by the 2ndaccused. Her cautioned statement gives a clear admission of the fact that she knew that her step father was murdered and participated in transporting the body to the place it was recovered later. The above evidence leads to nothing but a conclusion that Peter Mwaluko is dead. As to the 2nd ingredient on whether it was the accused persons who killed the deceased, it is clear that, no eye witness saw the accused killing the deceased. In her submission, the learned state attorney for the prosecution submitted that the 1st accused confessed to have killed the deceased on the material date, the fact which is corroborated by the cautioned statement of the 2nd accused who claimed to have heard the deceased groaning in the fateful night. She insisted that it is settled law that the best evidence in criminal cases comes from the accused who confesses his/her own guilt. Reference was made to the case of Paulo Maduka & others vs Republic (Criminal Appeal No. 110 of 2007) [2009] TZCA 69 Tanzlii. She added that neither the 1st accused nor the 2nd accused reported Page 27 of 42 I the matter to the authorities thus, they are guilty of the offence jointly with 1st accused. On the defence side, the counsel for the 1st accused submitted that, the prosecution failed to prove if the 1st accused directly or indirectly killed the deceased. That, there were contradictions in prosecution evidence between PW1, PW2 and PW7 on the time of the commission of the offence. That, while PW1 testified that he received the information on the deceased's death in 2024, PW2 claimed to have received such information in 2004. He argued that such contradiction goes to the root of the matter as there is no certainty of the time the offence was committed. He added that since the first accused testified that the deceased left to his home town at Dodoma to greet his relatives and no evidence to the contrary, the prosecution failed to prove that the first accused killed the deceased. On their part, the learned counsel for the 2nd and 3rd accused persons insisted that no evidence connecting their clients with the killing of the deceased. The counsel for the 2nd accused person submitted further that there was contradiction regarding the time exhibits PE2, PE3 and PE4 were seized. That, while PW1 testified that he seized the exhibits from the crime scene after the arrest of the accused persons on 24/3/2023, exhibit PE8 Page 28 of 42 shows that those exhibits were seized before the arrest. He added that exhibits PEI shows that search order and certificate of seizure were annexed as a single document but the search order was not read over during committal proceedings and during preliminary hearing hence, contravened section 246 of the CPA. He further submitted that the certificate of seizure was incompetent for it was not properly authenticated and had gaps. The counsel further submitted that, PW1 did not identify the unique features for the exhibits PE2, PE3 and PE4. He was of the view that, failure to identify unique feature of the exhibits tendered was a fatal irregularity. The learned advocate also submitted that the chain of custody was broken in respect of the exhibits PE2, PE3 and PE4 for the evidence shows that they were kept under the custody of G. 7237 CPL Ramadhani but neither PW1 nor PW5 tendered the chain of custody form. He referred the case of Paulo Maduka & another vs Republic (supra). I have gone through the record and did not find any material contradiction alleged by the defence counsel. The fact that PW1 claimed to have received the information on the deceased's death in 2024 but PW2 mentioned 2004 is a simple error which may be associated with her level of understanding and tension while standing in court. I say so because, it is in Page 29 of 42 evidence that both sides agreed that the deceased was living with the accused persons until 2023 when he went missing thus, mentioning 2004 or 2024 is a simple error which does not go to the root of the matter and cannot be considered as lack of certainty over the time the offence was committed. On the argument that the court should consider the first accused's defence that the deceased left to his home town at Dodoma, this court finds such argument unfounded in considering that there is prosecution evidence proving otherwise. On the claim for contradiction regarding the time exhibits PE2, PE3 and PE4 were seized, the evidence by PW1 shows that they seized the exhibits from the crime scene on 24/04/2023. This was after the accused persons were arrested on 22/04/2023. Exhibit PE8 reflects that the 1st accused recorded that after she was arrested, she informed the police about the instruments used in commission of the offence and they went to her house and seized them. I also found inconsistencies in exhibits PEI which shows that search order and certificate of seizure were in a single document but the search order was not read over during committal proceedings and during preliminary hearing. I therefore find that the whole process of search and seizure was full of material irregularity thus, the evidence resulting therefrom is given little weight. Page 30 of 42 However, apart from exhibit PEI to PE4, there is other prosecution evidence and oral testimony of PW1 on the seizure of the exhibits from the 1st accused's house; the axe, bicycle and the bucket which were mentioned to have been used in commission of the offence. In their cautioned statements, the 1st and the 2nd accused mentioned the instruments used in commission of offence and their evidence was corroborated by PW1 who seized the same from the scene. Thus, whether, the seizure process was tainted with irregularities, it does not defeat oral testimony of PW1 and accused person's own confession that such items were seized from their house. There is also undisputed evidence that Peter Mwaluko Chigodi got missing and his whereabouts could not be traced to date. The evidence also reveals that part of human body was recovered somewhere and upon conducting human DNA test, the result came out that the DNA from the dead body matched that of Dora Mwaluko who is the sister of Peter Mwaluko hence, a conclusion that the dead body was that of Peter Mwaluko. Upon arrest and interrogation of the accused persons, the 1st accused confessed to the murder of Peter Mwaluko while the 2nd accused confessed to have Page 31 of 42 i assisted the 1st accused in disposing the body. The cautioned statements of the 1st and 2nd accused are part of evidence. The above circumstance creates unbroken chain of events linking the recovered body as that of Peter Mwaluko and directly points at the 1st accused as the person who attacked and killed the deceased. There is no direct evidence connecting the 2nd and 3rd accused with physical attack and killing of the deceased but the prosecution side argued that the 2nd and 3rd accused are guilty for they assisted in hiding the commission of the offence. I partly agree with the prosecution's view for the 2nd accused's participation to the commission of the offence is clearly reflected in the cautioned statements of the 1st and 2nd accused; exhibit PE8 and PE10. However, there is no direct evidence showing that the 3rd accused participated either in the killing or disposing of the deceased's body. The 3rd accused person was mentioned by the 1st and 2nd accused persons in their cautioned statements for being aware of the offence. Since the statement of the 3rdaccused was not made part of evidence, this court cannot rely on the confession of the co- accused in concluding that the 3rd accused was aware of murder but did not report to the authorities. From the evidence on record, this court is satisfied that only the 1st accused was directly responsible for Page 32 of 42 the killing of the deceased while the 2nd accused assisted the 1st accused in disposing the body. Now, this takes me to the determination of the last issue on whether the killing was with malice aforethought. Section 200 of the penal code gives circumstances under which malice can be established. It reads: - "200. Malice aforethought shall be deemed to be established by evidence proving any one or more o f the following circumstances- (a) an intention to cause the death o f or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death o f or grievous harm to some person, whether thatperson is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate the flight or escape from custody o f any person who has committed or attempted to commit an offence." Page 33 of 42 In determining this issue, this court will discuss the role played by each of the accused persons. Starting with the first accused, the evidence shows that she brutally killed her husband using axe and did cut the body into pieces before disposing it. She confessed to the police as per exhibit PE8. Her cautioned statement was retracted on account that it was recorded out of time. I understand that a retracted confession needs to be corroborated with other evidence. See, the case of Shimbi Daud @ Kulwa & 4 Others v Republic Criminal Appeal No. 660 of 2020 Court of Appeal of Tanzania at Tabora (unreported) observed thus; repudiated "It is also well settled that, where the cautioned statementis retracted, it needs to be corroborated." [Emphasis added]. The similar stance was taken in the case of Mabala Masasi Mongewe v. Republic, Criminal Appeal No. 161 of 2010 (Unreported). However, in the case of Richard Lubilo and Another v. Republic, Criminal Appeal No. 10 of 1995 (unreported) the Court of Appeal emerged with a different position when it held that the cautioned statement of the accused can be relied upon by the court on conviction upon being satisfied Page 34 of 42 that it contains nothing but the truth. Referring the famous case of Tuwamoi v. Uganda, the Court of Appeal stated that: - "What this passage says is that in order for any confession to be admitted in evidence, it must First and foremost be adjudged voluntary. I f it is involuntary that is the end o f the matter, and it cannot be admitted. I f it is adjudged voluntary and admitted but it is retracted or repudiated by the accused, the court will then as a matter o f practice look for corroboration. But if corroboration cannot be found, that is, if the confession is the only evidence against the accused, the court may find a conviction thereon, if it is fully satisfied that the confession is true. "[Emphasis added] In the matter at hand, the 1st accused clearly confessed that she was sleeping with her husband and their disabled son in one room. That, while she was sleeping on the bed with her son, the deceased was sleeping on the floor over a mattress. She woke up at night, took the axe and attacked her husband while he was sleeping and when he tried to scream, she attacked him for the second time until he died. After she was satisfied that he was dead, she went in the sitting room leaving her disabled son and her lifeless husband in the bed room until morning. Her daughters (the 2nd and 3rd accused) who were sleeping in another room heard the commotion and Page 35 of 42 called out for their mother but she told them not to bother. In the morning, the 1st accused took out her son and instructed her daughters to go the farm. After they had left to the farm, she went to the bedroom and started cutting the deceased's body into pieces separating the head, hands and legs from the body. She waited until 18:00hrs when she carried parts of body using the bucket and tossed them into the canyon and were swept away by the running water. She went back home with her backet filled with water and she found her daughters already back from the farm. She sent her daughter Hadija to the grinding machine and after she left, she asked her another daughter Zainabu to take out the bicycle. She parked the remained part of the body into bags used to keep maize, pulled it outside and loaded it on the bicycle while Zainabu was holding the bicycle. She then led the bicycle while Zainabu was pushing it from behind and they went to Kimana village where they abandoned the body under the trees. They went back home and the 1st accused kept the mattress under the bed for it had blood. Three days later, she took out the mattress and exposed it in the rain and the blood was washed out. Few days later she heard people saying that the body was recovered at the canyon area and the same was buried after the police order. Page 36 of 42 Later, the deceased's son went there looking for the deceased but the 1st accused informed him that he left to Dodoma. This court warned itself on the danger of acting on retracted or repudiated confession but, it was convinced that in the circumstance of this case, the 1st accused's cautioned statement contains nothing but the truth. I say so because, no claims for torture or promise were raised by 1st accused person. After a trial within trial was conducted, this court was satisfied that she was a free agent when making the statement. The 1st accused did not deny recording her statement with the above summarized contents. The objection against the admission of the 1st accused's statement was based on the argument that it was recorded out of time. Such issue was resolved by this court and it was concluded that the statement was recorded on time. There was no objection relating to the voluntariness of the accused in recording such statement making this court to believe that it contained the true facts of what happened at the scene. The way her story was narrated convinced this court to believe that she was telling nothing but the truth. It is on this point this court finds that, although retracted confession needs to be corroborated, the circumstance of this case is slightly different and this court is convinced to believe that the statement was nothing but the truth. I Page 37 of 42 therefore subscribe to the court of appeal position in Richard Lubilo and Another (supra). Apart from the cautioned statement of the 1st accused, there are other corroborating evidence from both the defence and prosecution witnesses. There is undisputed cautioned of the statement of the 2nd accused who also confessed to have assisted her mother (the 1st accused) to hold and push the bicycle and dispose the body. I understand that confession by co-accused cannot form the basis of conviction unless it is corroborated by other evidence. This position was underscored by the court of appeal in the cases of Asia Iddi v. Republic, [1989] TLR 174 and Thadei Mlomo and Others v. Republic, [1995] TLR 187. However, in the matter at hand, there is other prosecution evidence to corroborate the statements of the 1st and 2nd accused persons. In their cautioned statements, the 1st and 2nd accused persons mentioned that after the deceased was killed, his body was abandoned under the trees near the canyon at Kimana village and such evidence was corroborated by other prosecution witnesses who saw the body at the same area mentioned by the accused persons in their statements. These are; PW1 who is a police officer who inspected the scene, PW3 who was the village chairman of Kimana Page 38 of 42 village and PW8, the doctor who examined the body. It was also corroborated by the evidence of PW10 who was the government chemists and DNA report proving that the DNA of the recovered body matched DNA of the deceased's sister making a conclusion that the body recovered was that of Peter Mwaluko. With such evidence, this court is satisfied that the 1st accused murdered the deceased and her clear evil motive is also echoed by her conducts during and after the incident. She murdered the deceased in cold blood and never even bothered to explain what the deceased did to her to deserve such a brutal killing. By cutting the deceased into pieces and disposing them, it suggests that the 1st accused intended to kill the deceased. She even tried to hide his death by disposing the body and lied to his family of what befallen him. With such evidence, this court is satisfied that the prosecution side was able to prove that the 1st accused person killed the deceased with malice aforethought hence, guilty for murder. For the 2nd accused, she was mentioned by the 1st accused as the person who assisted her in disposing the body. The 2nd accused also confessed to the police and her statement was undisputedly admitted as exhibit PE10. In her statement, the 2nd accused admitted that they were Page 39 of 42 living in the same house with their step father (the deceased) and she was sharing a room with her sister Hadija (the 3rd accused) while their disabled brother was sharing a room with their parents. On the night of 02/02/2024, they were awakened by the screaming of their stepfather. She asked her mother of what was going on and their mother asked them to sleep and stay out of her way. On the next day she asked her brother who told her that their mother did cut their father with an axe. They asked their mother and she told them not to bother as she knew what to do with the body. At the evening around 19:00hrs, her mother pulled out the body which was kept in sulphate bag and asked the 2nd accused to assist her in loading it on the bicycle. She also assisted in pushing the bicycle and they both dumped the body at the canyon area with many trees. They went back home and their mother started cleaning the room and warned them not to tell anyone. The deceased's son went there looking for his father but they never disclosed any information to anyone until when they were arrested by the police. The above statement is clear and shows that the 2nd accused never participated in killing the deceased rather she assisted in dumping the body thus, her role is that of an accessory after the fact to murder. Accessory after the fact is defined under section 387 (1) as follows: - Page 40 of 42 "A person who receives or assists another who is, to his knowledge, guilty o f an offence, in order to enable him to escape punishment, an accessory after the fact o f the offence." In the matter at hand the 2nd accused had knowledge that the 1st accused murdered the deceased. She intentionally assisted the 1st accused to dump the body after the 1st accused had committed the offence to enable her to escape punishment. By doing so, she became an accessory after the fact hence, guilty for the offence under sections 213 and 387 (1) of the Penal Code. Section 213 prescribes punishment for a person found guilty of accessory after the fact to murder. It reads: - "213. Any person who becomes an accessory after the fact to murder is guilty o f an offence and liable to imprisonment for seven years." Basing on the above discussion, I find that the prosecution managed to establish that the 1st accused murdered Peter Mwaluko Chigodi @ Peter Marco. I therefore convict the 1st accused person Halima Athumani Mhina for the offence of murder contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E 2022]. I however find that the prosecution side was unable to prove the offence of murder against the 2nd accused person but was able to prove the lesser offence of accessory after the fact to murder against her. I therefore convict the 2nd accused person one Zainabu Issa Sanka as an Page 41 of 42 accessory after the fact under sections 213 and 387 (1) of the Penal Code [Cap 16 R.E 2022]. The prosecution was however unable to prove any offence against the 3rd accused person one Hadija Issa Sanka and she is therefore acquitted forthwith. DATED at BABATI this 03rd day of October, 2024. Page 42 of 42