republic vs amos wilson sankara ntiboneka 2014 tzhc 2032 27 october 2014

IN THE HIGH COURT OF TANZANIA (TABORA DISTRICT REGISTRY) AT KIGOMA CRIMINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 141 OF 2010 THE REPUBLIC VERSUS AMOS WILSON @SANKARA NTIBONEKA 23rd & 27th October, 2014 JUDGMENT MWAMBEGELE, J.: The accused person Amos Wilson @ Sankara Ntiboneka is charged with murder c/s 196 of the Penal Code, Cap. 16 of the Revised Edition, 2002. It alleged that on or about 11.10.2009 at Nyakimwe Village within Kasulu District in Kigoma Region the accused person did murder one Philimon Nkarango. He pleaded not guilty to the information and therefore a full trial ensued. The prosecution fielded five witnesses in support of the case and the defence fielded three; including the accused person himself. The prosecution has sufficiently proved that Philimon Nkarango is indeed dead and that he did not die a natural death; he was killed. The fact of death of the deceased and the manner in which he met his death has been testified to by Kenasia Philimon PW1 and Mailes Philimon PW2, respectively, daughter and wife of the deceased. They were invaded by the assailant they claim to have identified as the accused person Sankara Ntiboneka who hacked the deceased to death with a panga. The deceased's death and the cause of his death has been testified to by Dr. Nicholaus Ruhamvya PW5 who conducted an autopsy on his body, which body was identified to him by Dickson Nkarango, ASP Mapesa; OC-CID Kasulu and No. D 870 D/Sgt Marco (as he then was) PW4. PW5 concluded his examination by expressing his expert opinion that the cause of the deceased's death was severe head injury and severe haermorrhage. The Post Mortem Report (PMR) was tendered in evidence without the objection of the defence and was admitted and marked Exh. PI. The summary of the report; paragraph 9 thereof, has the following remarks: "Dead body, multiple cut wounds on scalp with brain tissue outside the skull; much clots of blood on the floor, lying in recumbent position." The fact of death of the deceased has also been testified to by Asst. Insp. Michael PW4 (then No. D 870 D/Sgt Marco) who had the conduct of this case as far as police investigations were concerned. This witness was also present when the body of the deceased was examined by PW5. He also saw several severe cut wounds on the deceased's head and suspected that the deceased's death might have been caused by those wounds and loss of blood. PW4 thrilled his testimony and stated that "the deceased's skull was in pieces". 2 In the circumstances, as per the foregoing evidence, I am satisfied and take it as proved that Philimon Nkarango is indeed dead and that he did not die a natural death; he was killed. And from the very evidence, I am also satisfied that his killing was unlawful and whoever killed him did that with malice aforethought. This malice aforethought can discerned from the nature of the wounds inflicted and the geographical part of the body on which the same were inflicted; the head. The contentious issue before me and which actually prompted the trial of this case is whether it is the accused person Amos Wilson @ Sankara Ntiboneka who killed the deceased. The prosecution's case is that it is the accused person who killed the deceased. In an endeavour to prove that, the prosecution brought five witnesses to testify and tendered one exhibit; the PMR. Kenasia Philimon who testified as PW1 was the first to testify for the prosecution. PW1 testified that she is a resident of Nyakimwe Village Kasulu District, Kigoma Region. On 10.11.2009 at about 2030 hours she was at home. She was inside the kitchen together with her mother Mailes Philimon PW2, Adela Philimon (her young sister), Regina Philimon (also her young sister) and the deceased Phillimon Nkarango (her father). They had just finished taking supper. Suddenly a person armed with a panga on his right hand stormed into the kitchen and exclaimed "mko chini ya Ulinzi", that is, "you are under arrest". She identified that person as Sankara Ntiboneka. She knew him before as he was their neighbour and their way 3 to the market passed through his residence. In addition to that, he used to go to his sister, one Penselina Ntiboneka, and the way to his sister's residence passed through their residence. She went on to testify that the assailant-was in a black pair of short trousers, and bare chest. She identified him with the help of a wick lamp which was illuminating the kitchen that night. The wick lamp was in the middle of the small kitchen whose area measured about 4 x 4 paces. Her mother sat on the left hand side of the kitchen near the door and the deceased sat on the right hand side also near the door. The witness testified that the Sankara Ntiboneka she was making reference to as the accused person in the dock. After the accused entered the kitchen and shouted "mko chini ya ulinzi" the small kids Adela Phillimon and Regina Phillimon ran out of the kitchen leaving behind her mother, the deceased and herself together with the said Sankara Ntiboneka. That was at the point in time when the accused person Sankara Ntiboneka started to hack the deceased on his head with the panga he wielded. He hacked him once and when her mother wanted to help her husband, she was also hacked on her head. The assailant pushed her mother away and went on hacking the deceased. After she was pushed, her mother ran away out of the kitchen. Sankara proceeded to hack the deceased without mercy. On seeing that, she also sneaked out of the kitchen leaving behind Sankara and the deceased. Outside, PW1 and her mother raised an alarm. On hearing the alarm Sankara took to his heels. He beamed a torch at them while he was running away. Thereafter her mother went inside the kitchen to see the deceased while PW1 went on raising the alarm. 4 PW1 further testified that neighbours showed up in response to the alarm. They entered the kitchen and found the deceased in a pool of blood; he was already dead. He had several cut wounds. He was still sitting on a three legged traditional stool known as Kigoda. Her mother was taken to Nyamasovu Mission Hospital for treatment. She and Mwalimu Stephano Rugema reported the matter to Mnaninga Police. At the Police Station she told them that the assailant was Sankara Ntiboneka. After they made the report to the police, they returned home via the residence of the Village Executive Officer, one Athumani, where she also reported the incident and told him that Sankara Ntiboneka invaded them and hacked her parents and that her father was no more. After they made the report to the VEO they proceeded home where they found people still there. The deceased's body was also still there. The Police went to the scene of crime on the following day and found the deceased's body still in the kitchen and after interrogations and taking some measurements, they allowed them to bury the body. When cross-examined by Mr. Rumenyela, learned Counsel for the accused person, she testified that she knew Sankara well before; when she started schooling' and after his nieces introduced him to her that he was their uncle. She added that she had never seen him wear like that; that is wearing a black pair shorts without anything on top before the incident. She clarified that that black pair of shorts had the colour of the robe of Mr. Rumenyela; the learned defence Counsel who was cross-examining him. 5 She went on to testify in cross-examination that it was not difficult to identify him because there was enough light illuminated from the wick lamp and, above all, that she used to see him before. She could differentiate light from an electric tube light, lantern and that of a wick lamp. She was of the view that the wick lamp's light is similar in strength with the lantern's. She clarified that the ordeal took about half an hour. Mailes Phillimon PW2 was the second witness to testify for the prosecution. She testified that she is a peasant resident of Nyakimwe living with her kids John and Helton. On 10.11.2009 at about 2030 hours she was at home at Nyakimwe. She was in the kitchen together with her husband Phillimon Nkarango; the deceased and her daughters PW1, Adela and Regina. She was sitting on the right hand of the kitchen and her husband was sitting on the left hand. Their kids sat facing them. They had just finished taking their supper. PW2 went on to testify that while still in there, all of a sudden, there stormed in a person who ordered "mko chini ya ulinzi"; that is "you are under arrest". That person was armed with a panga on his right hand. After hearing that voice, the small kids Regina and Adela sneaked out. There remained inside PW1, the deceased, herself and the killer. The killer hacked the deceased on his head with the panga. On wanting to inflict the second hack, she got hold of the killer. At that point, the killer hacked her on the head and pushed her away. She escaped running outside the kitchen. Kenasia followed her leaving behind the deceased and the killer. While outside, she and PW1 cried for help. On hearing their cries for help, the killer rushed out of the kitchen and off 6 he disappeared in darkness. The assailant beamed a torch at them in the process of running away. She went on to testify that thereafter she went inside the kitchen to see the condition of her husband. She found him oozing of blood from the head wounds. He was sitting on a kigoda; a three legged traditional stool. He was already dead. There was blood all over his body. There were several cut wounds on his head. She thereafter went outside and heard people coming. At that point she fell unconscious. She regained consciousness at Nyamasovu Mission Hospital where she was admitted for six days. She could not participate in the funeral of her husband as she was still admitted in the Hospital. PW2 went on to testify that she identified the killer as Sankara Ntiboneka. She identified him with the help of light illuminated from a wick lamp which was in the middle of the kitchen. She added that the light was enough to identify any person. She knew Sankara Ntiboneka as they lived in the same village and more so as the way to the market passed through his residence. That she also used to see him when he was passing by their residence when going to his sister; their neighbor who resided in the third house from theirs. The witness described the attire of the accused person Sankara Ntiboneka as a black pair of short trousers and that he was bare- chest. On being cross-examined by Mr. Rumenyela, Counsel for the accused person she testified that they referred to the house in which they were as a kitchen but that they actually slept in there. And that the kitchen under reference had one room which was separated by a two or three course wall, to make two rooms. The wick lamp was at the middle of the two rooms. That they did not see the accused person with the torch inside the kitchen and that he did not flash it while in there. On the span of time the ordeal took, the witness stated that it just took some minutes. She did not know why the accused person invaded them. On cross-examination by the second assessor; Ramadhani Kalovya, PW2 testified that she was not aware of any grudges between the accused person and the deceased. Neither was she aware if the two owed each other. Athumani Mlinga PW3 was the third witness to testify for the prosecution. He testified that he was at the material time, the Village Executive Officer of Nyakimwe Village. He lived in the next village; Mnanila which was about two kilometres away. On 10.11.2009 at about midnight while at home in Mnanila Village he received a call from one militiaman notifying him that Phillimon'Nkarango; a resident of Nyakimwe Vilage, where he worked as a VEO, had been hacked to death. At almost the same time, PW1; the daughter of the deceased and one person; a teacher arrived and informed him about the incident. PW1 told him that it was Sankara Ntiboneka who had killed the deceased. On receipt of the information, he ordered militiamen to go and arrest the suspect. The militiamen arrested the accused person and on the following morning he was brought at the Village Executive Office. On the very night, the wife of the deceased was taken to Nyamasovu Mission Hospital. PW3 was there when an autopsy on the body of the deceased was conducted. After that it was allowed that the deceased be buried. The witness participated in the funeral and burial ceremony. PW3 knew the accused person Sankara Ntiboneka and identified him as the accused person in the dock. On being cross-examined by Mr. Rumenyela, Counsel for the accused person, PW3 testified that he interrogated the accused person at the VEO's office in the morning but that he denied to have committed the offence. On being interrogated if he knew one Susana Amos, PW3 responded that he did not know her. On being examined by the second assessor, PW3 stated that he did not know whether the deceased and accused person owed each other. Asst. Insp. Michael PW4 was the fourth to testify. This is a police officer who investigated the case. He was at the material time working in the office of the OC-CID in Kasulu District; he is currently the OCS of Kigoma Urban Police Station. On 11.11.2009 in the morning he was at Kasulu Police Station when he received information from the VEO of Nyakimwe Village to the effect that a person had killed at the village. On receipt of the information, he looked for a Doctor so that he could go with him to the village to have an autopsy on the body of the deceased conducted. He got Dr. Nicholaus Ruhamvya PW5 of Mlimani Kasulu District Hospital. He went with him to Nyakimwe Village for that assignment. At the village, they found the VEO and several other people already there. Kenesia Philimon PW1; the daughter of the deceased was also there. The doctor examined the body of the deceased in his presence. The body of the deceased had several cut wounds on the head and had oozed a lot of blood. As the deceased skull was "in pieces" PW4 suspected that the deceased died due to loss of blood. He interrogated PW1; the deceased's daughter who told him that the killer was Amos. That after that he went to the Hospital where he interrogated the deceased's wife who was admitted there. On being cross-examined by the learned Counsel for the accused person, PW4 stated that the wife of the deceased (Mailes Philimon PW2) told him that the assailant was Amos. On being given to read PW2's statement, PW4 changed goal posts and stated that PW2 mentioned Sebankara Ntiboneka but was quick to point out that the two names refer to one and the same person; the accused person. PW4 added that PW1 and PW2 told him that they identified the assailant with the help of light illuminated from a wick lamp. This witness added that he had used wick lamps before and that they have enough light to be able to reveal the identity of a person. On being examined by the first assessor, PW4 stated that having seen the wounds inflicted on the body of the deceased, he suspected that the wounds might have been inflicted by a sharp object like a panga. And when asked by the second assessor, he stated that he uses both Michael 10 and Marco as his names. In re-examination, he stated that he wrote down the statement of the accused person who introduced himself as Amos. The last witness for the prosecution* was Dr. Nicholaus Ruhamvya PW5. He testified that he lives in Kasulu town and is an Assistant Medical Officer at Kasulu District Hospital. He has been an AMO since 2006 before which he was a Clinical Officer. He was educated on this profession at Tanga Medical Assistant Training Centre (now Tanga Assistant Medical Officers' Training Centre) and Bugando Assistant Medical Officers' Training Centre. PW5 went on to testify that on 11.11.2009 in the afternoon he was on duty at Kasulu District Hospital. There came a Policeman whose name he could not exactly remember, who asked him to go with him to Nyakimwe Village to examine the body of one deceased. They went thither where he conducted an autopsy on the body of an old man. The body was in clotted blood and had a lot of head cut wounds. The skull had fractured. His examination revealed that the death of the deceased was due to severe head injury and severe haemorrhage and later filled the relevant form as such. He tendered the relevant PMR and was admitted in evidence as Exh. PI. • On being cross-examined by Mr. Rumenyela, learned Counsel for the accused person why he filled the PMR on 20.01.2010 while he conducted the autopsy on 11.11.2009, he stated that he fell sick immediately after he conducted the same and resumed duty two months thereafter; after he recuperated but was quick to state that he had scribbled notes during the examination which notes he used to fill the PMR. He insisted that that was not uncommon. On being examined by the first assessor; Salama Kangeta, PW5 reiterated that the deceased Philimon died due to severe haemorrhage caused by severe cut wounds on the head which made the brain tissue exposed. And when questioned by the third Assessor; Alphonsina Kabenze, the witness added that a sharp object was used to inflict the wounds but could not tell exactly which; it could be, say a panga, an axe, a knife or anything sharp. Having seen that the prosecution had sufficiently made out its case to require the accused person to make his defence, the court addressed him in terms of section 293 (1) and (2) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002. The accused person elected to give his defence on oath. He also called two witnesses to support him; his wife and son, Mariam Daniel and Elphas Amos, respectively. The defence also tendered one exhibit; a statement the accused person made at the police station. The accused person Amos Wilson @ Sankara Ntiboneka testified in defence as DW1. He testified that he is a resident of Nyakimwe Village. He was born and grew up there but started school at Kashaguru Primary School, in the shores of Lake Tanganyika and later relocated to Mwanza. He went back in 2002 and settled at Nyakimwe. He testified that he was a peasant as well as a bus conductor. He testified that he spent the morning of 10.11.2009 planting coffee seedlings. He did that up to 1200 noon and in 12 the evening he went to the market to buy relish. He returned home at about 1900 hours and found his wife Mariam Daniel DW2 and son Elphas Amos DW3 there. They took supper and at 2100 hours they retired to bed for the right. He went on to testify that in the morning of the following day, his wife woke up at about 0700 hours. She went outside only to find militiamen there. After being so informed by his wife, he went to ask them what they were there for. They told him that they were there to arrest him for the death which had occurred at Mugwaga hamlet. He asked them for permission to change his clothes before they took him which permission he was granted. He was taken to the office of the VEO. The VEO was not there. He was at Mnanila. On arrival later the VEO asked him what his name was. He told him. The VEO told him that he was accused of killing Mzee Philimon Nkarango. He denied having a hand in that killing. After that the VEO wrote a letter to the Mnanila Police Station. He was taken there and later to Kasulu Police Station where he was made to write a statement in which he denied to have killed the deceased. The accused person prayed to tender the statement as exhibit and, as the prosecution did not object, the same was admitted in evidence and marked Exh. Dl. The accused person went on to testify that he did not know Philimon Nkarango because, though born there, he did not grow up in the village. Neither did he know his family; that is, the deceased's wife and children. 13 He went on to testify that he was in grudges with PW3; the VEO as he was in love relationship with his second wife Susana. On learning of the relationship he followed PW3 to his office and told him that he should stop the relationship with his second wife. That PW3 denied to have been in any love relationship with his second wife. He said he had never slept with her. The accused person went on to testify that he heard later from PW3's friends that he would make sure that the accused person "is lost". The accused understood the statement to mean PW3 would frame him up and added that PW3 has succeeded accomplishing his mission through this case facing him. On cross-examination by Ms. Rugaihuruza, learned Senior State Attorney, he stated that both sets of names; Amos Wilson and Sankara Ntiboneka are his. He added that he was in bad blood with the VEO; PW3. That he had been seeing Susana and the VEO (PW3) "standing together" more than once but that he had never caught them in flagrante delicto. That they started their love relationship in August 2008 and used to be together in the evening in awkward circumstances when darkness was. around the corner. He stated that he suspected that the VEO framed him up but that he had no grudges with the rest of the witnesses; he framed him up using the witnesses. When asked by the first assessor; Salama Kangeta why he felt PW3 was making amorous advances at his second wife, he stated that the circumstances under which he frequently met PW3 and his second wife 14 Susana left a lot be desired to the extent that he ultimately returned her to her parents in Mwanza. That they had two issues of the marriage with his second wife. The accused person's wife; Mariam Daniel was the second witness to testify for the defence. She testified as DW2. She testified on 10.11.2009 in the evening she was at home with her kids. Her husband had gone to the market to buy relish. He came back at about 1845 hours. They retired for the night at about 2100 hours after taking their supper. Her husband never left after he arrived home back from the market. DW2 went on to testify that on the morning of the following day at about 0700 hours she was the first to wake up. She went out only to find their house surrounded by militiamen. She returned inside the house and told her husband Amos Wilson on the presence of militia men outside. Her husband woke up and went outside and asked the militiamen what had gone wrong. They told him that they were there to arrest him in connection with the death of Philimon Nkarango. She did not know Philimon Nkarango and was not aware of any death that morning until later when they reached the office of the VEO. Later her husband was taken to Mnanila Police Station where she also went. She returned at the village where she found some people saying that her husband had killed the deceased but that most of them said her husband was innocent. On cross-examination by the learned Senior State Attorney, she clarified that her kids Elphas, Stella and Gerson were with her at home on the 15 material time. Her husband was the fifth. The witness insisted that the accused person did not go out that night and that she would have known as they slept very close to each other. When examined by the first assessor; Salama Kangeta, DW2 stated that the accused person never went out after he arrived home; not even to attend a call of nature. Elphas Amos; son of the accused person and DW2 was the third to testify for the defence. He testified that when the accused person was arrested, he was at home. It was .at about 0700 hours in the morning at their residence at Nyakimwe Village. He testified that on the evening of the previous day at about 1900 hours his father arrived home with relish. He had bought it from the market. That they slept at about 2100 hours after supper. He never heard the accused going out after he slept. On the morning of the following day as he was preparing himself to go to School, her mother was the first to wake up. He went out only to see militiamen surrounded the house. She returned inside to tell her husband that there were militiamen outside. The accused person went outside to ask them what they were there for. They told him that they had come to arrest him for the death of someone. This case stands or falls on the question of visual identification, particularly visual identification by means of light illuminated from a wick lamp. The pertinent question that immediately comes to the fore is therefore whether the identifying witnesses were capable of identifying the assailant with 16 certainty. I wish to state at this juncture as was stated in the oft quoted case of W a ziri A m a n i Vs R [1980] TLR 250; the decision of the court of appeal of Tanzania that evidence of visual identification is of the weakest kind and most unreliable. The courts in this jurisdiction have been urged through this decision not to act on evidence of visual identification to found a conviction unless all possibilities of mistaken identity have been eliminated and the court is satisfied beyond reasonable doubt that such evidence is absolutely watertight. The court of appeal in that landmark case went on to guide that although no hard and fast rules as to the manner a trial judge should determine questions of disputed identity, it should be shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. The evidence should show the time the identifying witness had the accused under observation, the distance at which he observed him, the conditions in which such observation occurred, for instance, whether it was day or night time, whether there was good or poor lighting at the scene of crime, and further whether the witness knew or had seen the accused before or not. The guidelines in the W a ziri A m a n i (supra) case were put in simpler terms in the case of S h a m ir Jo h n Vs R, Criminal Appeal No. 166 of 2004 (unreported) in which, referring to its earlier decisions of W a ziri Am ani, R aym ond F ra n cis Vs R [1994] TLR 100, A u g u sto M ah iyo Vs R [1993] TLR 117 and A ie x K ap in g a & 3 O th ers Vs R, Criminal Appeal No. 252 of 2005 (unreported) the Court of Appeal (Lubuva, Mroso and Rutakangwa, 17 JJA), speaking through Rutakangwa, JA, urged the court to pose to itself the following questions: 1) How long did the witness have the accused under observation? 2) At what distance? 3) In what light? 4) Was the observation impeded in any way? 5) Had the identifying witness ever seen the accused before? 6) How often? 7) If only occasionally, had he any special reason for remembering the accused? 8) Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance? Again, in almost similar tone, the Court of Appeal reiterated this position of the law in the case of M ath ew S tep hen @ Law ren ce Vs R, Criminal Appeal No. 19 of 2007 (unreported) as follows: "To exclude all possibilities of mistaken identity, the Court has therefore to consider the following. First, the period under which the accused was under observation by the witness. Second, the distance separating the two during the said observation. Third, if it is at night, whether there was sufficient light. Fourth, whether the witness has seen the accused before and if so, when and how often. Fifth, in the course of examining the accused, did the witness face any obstruction which might interrupt his concentration. Sixth, the whole evidence before the Court considered, were there any material impediments or discrepancies affecting the correct identification of the accused by the witness" [Quoted by this court (Nyerere, J.) in R Vs Ib ra h im Yusuph CaUst W a kje ri R u k w i @ G akaya @ H a lfa n i @ B onge & 7 O thers, Criminal Case No. 28 of 2008 (unreported)]. With respect to identification, it may not be irrelevant to recall and restate the law relating to the importance of proper and correct identification in cases whose determination centres on identification as was articulated by the Court of Appeal for Eastern Africa in the case of M oham ed A lh u i Vs /tor (1942) 9 EACA 72 as follows: "In every case in which there is a question as to the identity of the accused, the fact of there having been a description given and the terms of that description given are matters of the highest importance of which evidence ought always to be given; first of all, of course, by the persons who gave the description and purport to identify the 19 accused, and then by the person or persons to whom the description was given." The foregoing statement of the law was followed by this court (Chipeta, J.) in R ash/di A lly Vs R [1987] TLR 97 and quoted and followed by the Court of Appeal in R aym ond F ra n cis {supra). Zooming in the matter a little bit deeper, the question of identification with the help of light illuminated from a wick lamp, is not virgin; it is not only peculiar to the present case. The question has been the subject of discussion in a number of cases in this jurisdiction. The Court of appeal in H a m isi H u ssein & 2 O th ers Vs R, Criminal Appeal No. 86 of 2009 (unreported), relying on its earlier decision of Issa s /o M agara @Shuka Vs R, Criminal Appeal No. 37 of 2005 (unreported), had this to say: "In our settled minds, we believe that it is not sufficient to make bare assertions that there was light at the scene of the crime. It is common • knowledge that lamps be they electric bulbs, fluorescent tubes, hurricane lamps, wick lamps, lanterns etc give out light with varying intensities. Definitely, light from a wick lamp cannot be compared with light from a pressure lamp or fluorescent tube. Hence the overriding need to give in evidence sufficient details the intensity and size of the area illuminated." 20 The Court continued quoting from its earlier decision as follows: "We wish to stress that even in recognition cases where such evidence may be more reliable than identification of a stranger, clear evidence on sources of light and its intensity is of paramount importance. This is because, as occasionally held, even when the witness is purporting to recognize someone whom he knows, as was the case here, mistakes in recognition of close relatives and friends are often made." The foregoing position of the court of appeal was followed in K ashim a M n a d i Vs R Criminal Appeal No. 78 of 2011, V u m ilia D au d Tem i Vs R Criminal Appeal No. 246 of 2010 and K ap ten M w aip u n g u Vs R Criminal Appeal No. 85 of 2007 (all unreported decisions of the Court of Appeal). And in Ja rib u A b d a lla h Vs R [2003] TLR 271, the Court of Appeal provided the following caution: "...in matters of identification, it is not enough merely look at factors favouring accurate identification. Equally important is credibility of witnesses. The conditions for identification might 21 appear ideal but that is no guarantee against untruthful evidence". See also: Jo h n La za ro R Criminal Appeal No. 230 of 2010, a case cited to me by the learned Senior State Attorney, in which the Court of Appeal accepted the identification of the killer by means of a wick lamp illuminating a 4 x 3 paces room and Je re m ia h M adebete Vs R Criminal Appeal No. 64 of 2004 in which identification by candle light was accepted by the court because the witnesses knew the accused person before. Both are un reporrtedecisions of the Court of Appeal. I will be guided by the above principles in determining the present case. The learned brains Ms. Rugaihuruza, Senior State Attorney and Mr. Rumenyela, advocate were accorded time to address the court on the case. Mr. Rumenyela, learned Counsel for the accused person was of the view that there are doubts in the present case which must be resolved in favour of the accused person. The first doubt, he submitted, hinged on the identification of the accused person. He was of the view that the accused person was not properly identified by witnesses for the prosecution in that the identifying witnesses PW1 and PW2 who claims to have identified the accused person with the help of light illuminated from a wick lamp did not give clear evidence on the type and intensity of light. He cited the case of W a ziri A m a n i (supra) in which the Court of Appeal held that: 22 "If a witness relies on identification by light, clear evidence must be given on the type and intensity of light." In the present case, the identifying witness claim to have identified with the help of light from a wick lamp. The wick lamp light is so weak compared to some other sources of light like lanterns, hurricane lamps and electric light, he submitted. The learned counsel challenged the testimony of PW1 to the effect that light from a wick lamp is similar in strength with light from a lantern as being incorrect. He was of the opinion that a wick lamp light is weaker in strength compared to light illuminated from a lantern and that under normal circumstances, in that panicky situation, the assailant could not be easily identified. Mr. Rumenyela, learned Counsel also addressed the court on the question of discrepancy in the testimonies of the witnesses. He submitted that, first, PW1 testified that the ordeal took about half an hour while PW2 testified that the incident just took some minutes. Secondly, these witnesses stated that the accused person beamed a torch at them while running away. Citing Zengo M ahem a & A n o th e r Vs R, Criminal Appeal No. 74 of 2009 (Tabora unreported), he submitted it is not easy for an accused person to be identified with the help of a torch as the bearer of the torch does not beam at himself. Another doubt hinged on the weapon used not being tendered in evidence. The witnesses testified that the weapon used to inflict the injuries on the 23 deceased and PW2 was a panga. However, PW4 who investigated the case did not tender the panga in evidence as exhibit. Mr. Rumenyela also attacked the prosecution case that no identification parade was conducted to make PW1 and PW2 verify that it was the accused person who they identified on the material night. What was done by the witnesses, he submitted, was just dock identification which is not reliable. On the attire of the accused person, the learned Counsel submitted that the identifying witnesses - PW1 and PW2 - testified that the accused person wore a black pair of short trousers. There was no evidence led to the effect that the accused was found with the pair of shorts referred to. In H am idu H u sse in & 4 O th ers Vs R, Criminal Appeals No. 138, 139, 140, 141 and 142 of 2011 (Tabora CAT unreported) at P. 6 in which it was said such kind of description is not sufficient unless the accused person has been found with the same. In the present case, they were supposed to tender the pair of shorts referred to, he submitted. The learned defence counsel addressed the court on yet another doubt in the evidence of PW1 as having mentioned the accused person when she reported at Mnanila Police Station and later to PW3. No policeman from Mnanila Police Station was called to testify thus we cannot be sure if at all she mentioned the accused person at Mnanila Police Station. Neither was the teacher who accompanied PW1 to the Police called to testify, he submitted. Failure to bring to testify a Policeman to whom the report was made and the teacher who was with PW1 when she went to report to Mnanila Police Station leaves a lot to be desired. Mentioning to PW3 that it was the accused person who killed the deceased is not enough because PW1 met other people before she met PW3. The learned Counsel concluded that the accused person was at his home when the offence was being committed and that he never left home after he arrived from the market. That is the reason why he was found at home and that this was not common. He prayed that these doubts be resolved in favour of the accused person. On her part, the learned Senior State Attorney for the prosecuting Republic was of the view that the charges leveled against the accused person have been proved beyond reasonable doubt. She submitted that PW1 and PW2 properly identified the accused person at the locus in quo. They identified him by means of light illuminated from a wick lamp which light they said was sufficient enough to identify any person. The room was small measuring about 4 x 4 paces. Thus bearing in mind the size of the room and the intensity of light, the accused person was fully identified. This is more so because the accused person was known to them before. They also mentioned the attire in which the accused person was; a black pair of shorts and bare chest. And to crown it all, the witnesses mentioned the accused person to Police and PW3. She cited G asp er A u g u st U rio Vs R, Criminal Appeal No. 235 of 2008 (Arusha CAT unreported) at page 7, relying on M arw a W a n g iti M w ita & A n o th e r Vs R, [2002] TLR 39 in which it was held that the ability of the witness to mention the suspect at the earliest opportunity is an assurance of his reliability. On the question 25 why a Police from Mnanila Police Station and the teacher who accompanied PW1 were not called has no relevance because under Section 143 of the Evidence Act Cap. 6 of the Revised Edition, 2002, there is no number of witnesses required to prove any fact. On the intensity of light from the wick lamp, the learned Senior State Attorney submitted that it can be used to identify a person. She cited Jo h n Lazaro (supra) in which the accused person was identified through a wick lamp. On the question of time the ordeal took, the learned State Attorney conceded that PW1 and PW2 contradicted but was quick to point out that taking into consideration that PW1 and PW2 are lay persons, the discrepancy is immaterial. And on the issue that there was a panicky situation there, she submitted that that is not in evidence; no witness testified that the witnesses panicked. What is in evidence is that when the accused person stormed into the kitchen, he exclaimed "mko chini ya ulinzi" and PW1 and PW2 remained in there observing the accused person hacking the deceased. There is no evidence that they panicked, she submitted. On the question of the panga, Ms. Rugaihuruza conceded that PW4 testified that the panga was not retrieved but she was of the view that that was not fatal and cannot destroy the prosecution case. With or without 26 the panga as an exhibit, the prosecution has proved the case to the required standard; beyond reasonable doubt, she submitted. On the question of the identification parade she submitted that it was not necessary as the accused person was known to the witnesses before and that t is not true that PW1 and PW2 made dock identification; they knew the accused person before. On the issue that the accused person was not found in possession of the pair of shorts, she submitted that that was not necessary and cannot in anyway affect the prosecution's case. She distinguished the H am idu case from the present case as in that case, the accused person was not known to the identifying witnesses. On the question of voice identification, the learned Senior State Attorney submitted that the prosecution witnesses did not testify to have identified the accused person by voice. This point raised by the learned Counsel for defence was therefore irrelevant and inapplicable to the present case, she submitted. On the issue that the accused person was at home and that he was arrested there, she does not smear any doubt on the prosecution's case and thought the accused person raised this just to defend himself. 27 She submitted that the prosecution has proved the case against the accused person beyond reasonable doubt and prayed that he be convicted as charged. The three assessors who helped the court to hear this case entered a verdict of not guilty for the accused person. They were of the view that there were doubts that must at the end of the day be resolved in favour of the accused person. They stated PW1 and PW2 are relatives of the deceased and therefore, to cement their evidence, there ought to have been independent evidence. I have subjected the evidence presented to me during the trial of this case to serious scrutiny. I have as well considered the opinion given to me by the ladies and gentleman assessors who sat with me in this case. For reasons that I will endeavour to show hereinbelow, with utmost respect, I am not at one with the three assessors and as it is trite law, in the light of the Baland Singh rule of practice propounded by B a la n d S in g h Vs R (1954) 21 EACA 209 and restated by the Court of Appeal in U s i A th u m a n i M atu Vs R [1988] TLR 78, I will hereby proceed to demonstrate why I am not in agreement with them. As already stated above, this case stands or falls on the question of visual identification, particularly visual identification by means of light illuminated from a wick lamp. The pertinent question is therefore whether the identifying witnesses identified the assailant with accuracy. The ladies and gentleman assessors thought that there ought to have been independent 28 evidence to cement the testimonies of PW1 and PW2 who are relatives of the deceased. With all due respect to the lady and gentleman assessors, that the evidence of the relative must be corroborated is not the law of this land. -A relative is a competent and compellable witness and there is no law in this jurisdiction that would bar him to testify on account that he is a relative of the deceased. What is relevant is, just like the evidence of non­ relatives, the credibility and reliability of that relative witness. That is to say, PW1 and PW1 (relatives of the deceased) were competent to testify for the prosecution just like DW2 and DW3 (relatives of the accused) were for the defence. That this is the law was stated way back in 1936 by Sir Sydney Solomon Abrahams, then Chief Justice of Tanganyika, in R Vs Lutakom be s /o M ikw a lo & A n o th e r (1936) 3 EACA 43, at 44 as follows: "There is no rule of law or practice which permits the evidence of near relatives to be discounted because of their relationship to an accused person". (Quoted in M ustap ha R am adhan i K ih iy o Vs R [2006] TLR 323) The foregoing statement of the law has been followed by this court and the Court of Appeal is a good number of decisions. The decisions of the Court of Appeal include M ustapha R am ad h an i K ih iy o (supra), P a u l T ara yi Vs R, Criminal Appeal No. 216 of 1994 (unreported), G odi K asen eg ala Vs R, Criminal Appeal No. 10 of 2008 (unreported), D e o g ra tiu s B eno Vs R Criminal Appeal No. 166 of 2005 (unreported) 29 and S p ria n Ju stin e Tarim o Vs R Criminal Appeal No. 226 of 2007 (unreported) to mention but a few. In the present case, the identifying witnesses - PW1 and PW2 - are emphatic that they managed to identify the accused person with the help of light of a wick lamp which illuminated the kitchen which PW1 estimated was small, measuring about 4 x 4 paces. The two identifying witnesses were also emphatic that they knew the accused person before as he was a resident of the village and used to see him on several occasions while they were going to the market and when he passed at their residence when going to his sister who lived in the third house from theirs. They both described the attire the accused person was in during the attack as a black pair of short trousers and was not wearing anything on top. I saw these star witnesses as they testified in the witness box. PW1, a young girl of eighteen years, was calm, stable, composed and recounted what befell happened with efficacy. She was able to thoroughly recount the ordeal in more than adequate details without any doubts and was not shaken by heavy cross-examination arsenals unleashed to her by Mr. Rumenyela, learned Counsel for the accused person. PW1 remained consistent all the time she was in the witness box. This witness, honestly, left me with no speck of doubt as to her truthfulness. As I keenly observed her, she was but speaking the truth and the truth only. I found her to be not only credible but also reliable. 30 Likewise, PW2, though not as stable and composed as PW1, was a witness to rely on. She confessed to the court that she was not comfortable with Kiswahili as she was proficient with Ha language; her mother tongue. As the court saw the level of Kiswahili language she spoke was sufficiently adequate to deliver the message without an interpreter, it felt no need to find one. This witness also recounted what transpired on the material time with sufficient articulacy. She testified without an interpreter and the relevant message managed to sail through. The missiles in cross- examination from Mr. Rumenyela, learned Counsel for the accused person did not shake the old lady, who does not even know her age, on the gist of her evidence. Both witnesses testified how the accused person stormed into the room and exclaimed in Kiswahili "mko chini ya ulinzi"; that is, "you are under arrest" and started to hack the deceased without mercy with the panga he was armed with. Both testified how PW2 tried to help her husband but alas! she was also hacked once on the head and managed to sneak out to save his life. PW1 remained behind and witnessed the accused person mercilessly hacking the deceased on his head without mercy before she also sneaked out where she joined her mother PW2 to raise an alarm. On hearing them raise an alarm, the accused person took to his heals beaming a torch light at them in the process. As to the intensity of the light of the wick lamp illuminating the room at the material time, PW1 and PW2 were certain that it was strong enough to 31 identify the accused person. The light was illuminating the small kitchen PW1 described it to be of an area of about 4 x 4 paces. Having closely watched them testify, both witnesses left me with an impression that they were speaking but the truth and that they were credible and reliable witnesses. I am of the settled mind that PW1 and PW2; daughter and wife of the deceased, respectively, had ample opportunity to identity the accused person, a somewhat neighbour living in the same village and who they used to see him in the village while going to the market and when he passed by their residence when going to see his sister one Penselina Ntiboneka who lived in the third house from theirs that he was the one who stormed into the kitchen and killed the deceased in the manner they both recounted with sufficient lucidity. PW1 sat facing the door and thus was very much capable to see whoever entered the kitchen and PW2, though not facing the door, was very much close to the assailant when trying to help the deceased during which she was also hacked and injured on her head. A 4 x 4 paces room, in my view, is small enough to make a wick lamp illuminate it pretty well. And as if to clinch the matter, PW1 and PW2 mentioned the accused person as the assailant as soon as that opportunity came about. PW1 mentioned the accused person at the Mnanila Police Station that very night when she went to report the matter in company of one Mwalimu Stephano Rugema. She also mentioned the accused person to the VEO; Athumani Mlinga PW1. That was what made the arrest of the accused person on the very morning of the incident. Likewise, PW1 and PW2 mentioned the 32 accused person as the assailant to Asst. Insp. Michael PW4 on the following day. As rightly pointed out by Ms. Ruhaihuruza, learned Senior State Attorney, the ability of PW1 and PW2 to mention an assailant at the earliest possible opportunity is an assurance of their reliability. There are more than abundant Court of Appeal decisions to support this proposition. One such case is a fairly recent decision of M in a n i E v a ris t Vs R Criminal Appeal No. 124 of 2007 (unreported) whose judgment was handed down on 17.02.2012, in which, referring to its earlier unreported decision of Sw aleh e K alo n g a & A n o th e r Vs R, Criminal Appeal No. 45 of 2001, the Court of Appeal observed: "... the ability of a witness to name a suspect at the earliest possible opportunity is an all important assurance of his reliability." The same position had been taken in earlier decisions of the same court in Ja rib u A b d a lla h Vs R [2003] TLR 271, M arw a W a n g iti M w ita & A n o th e r Vs R [2002] TLR 39 and G asp er A u g u st U rio Vs R C rim in a l Appeal No. 235 of 2008 (unreported); a case referred to me by the learned Senior State Attorney. In the M arw a W a n g iti M w ita case (supra), in its judgment dated 12.06.2000, it was observed: "The ability of a witness to name a suspect at the earliest opportunity is an important 33 assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry". This position of the law was restated by the same court about fourteen months later (on 10.08.2001) in Ja rib u A b d a lla h (supra) in which the above passage was restated with approval in the following terms: "In matters of identification, it is not enough merely to look at factors favouring accurate identification, equally important is the credibility of the witness. The conditions for identification might appear ideal but that is not guarantee against untruthful evidence. The ability of the witness to name the offender at the earliest possible moment is in our view reassuring though not a decisive factor". [See also: M a fu ru M anyam a & Two O th ers Vs R Criminal Appeal No. 256 of 2007, K e n e d y Iv a n Vs R Criminal Appeal No. 178 of 2007, Jo h n G ilik o la Vs R Criminal Appeal No. 31 of 1999 and Yohana D io n iz i & S h ija Sim on Vs R Criminal Appeals No. 114 And 115 Of 2009 (all unreported decisions of the Court of Appeal]. I have considered the discrepancies in evidence of PW1 PW2 as complained by Mr. Rumenyela, learned Counsel for the accused person 34 particularly that they contradicted on the span of time the ordeal took. Admittedly, PW1 testified that the ordeal took about half an hour and was emphatic that half an hour meant thirty minutes while PW2 stated that it just took some minutes and she was also it was less than a half an hour. This discrepancy, in my view, in the circumstances of this case is one which is trivial and does not go to the root of the case as to affect and reliability of the two identifying witnesses. I find comfort in this stance in the case of M a th ia s B unda/a Vs R, Criminal Appeal No. 62 of 2004 where the Court of Appeal, reiterating its earlier position in K iro iy a n n O/e Suyart Vs R, Criminal Appeal No. 114 Of 1994 (unreported) observed: "We would like to reiterate here what the Court said in the case of KIROIYANN OLE SUYAN vs. R, Criminal Appeal No. 114 Of 1994 (Unreported). In its judgment dated 17.02.2002, the Court unequivocally stated that when a witness gives evidence after a long interval, say six years, following the event, allowance ought to be given for minor discrepancies. In the case at hand the witnesses were testifying after a lapse of nine years. Such expected trifling contradictions should be appropriately ignored..." 35 And in E v a ris t Kachem beho & O th ers Vs R (1978) LRT n. 70 this court [Mnzavas, J. (as he then was)] stated at page 351: "Human recollection is not infallible. A witness is not expected to be right in minute details when retelling his story" In the instant case, the incident took place in 2009 and the witnesses were testifying five years after it; in 2014. This is a long time that it is humanly possible to forged minute details like how long the ordeal took. It is my ^ considered opinion that this discrepancy can be ignored without causing any injustice to the parties. The complaints to the effect that there was need to conduct an identification parade, that that the identifying witnesses could not have identified the accused by means of a torch and that the black of shorts was not found in accused person's possession have amply been answered by Ms. Rugaihuruza, learned Senior State Attorney which answers I fully endorse. It would make no sense to conduct an identification parade while the accused person was not a stranger to the identifying witnesses. As for identification by means of a torch, this is not applicable in the present case as the identifying witnesses did not claim to have identified the accused person by means of the torch. The moment when the accused person beamed at them while running away, the identifying witnesses had already identified him by means of a wick lamp inside the kitchen. The Zengo case cited by the learned Counsel for the accused person, therefore, is not 36 applicable in the case at hand. And as to the production of the black pair of shorts the accused person allegedly wore during the attack, as the learned Senior State Attorney stated, was not necessary in view of identifying witnesses' testimony to the effect that they knew the accused person before the incident. The H am idu case cited by Mr. Rumenyela learned Counsel, is therefore, as rightly pointed out by Ms. Rugaihuruza, distinguishable. and failure to tender it does not taint the prosecution case with any reasonable doubt. I have also considered the possibility of the accused person being framed by PW3. The accused person stated that he was in bad blood with PW3 as the latter was making amorous advances at his wife Susan Amos and that at one time, having learnt of the love relationship, confronted him in his office and told him to stop the relationship. That he had seen PW3 and his second wife on several occasions "standing" together in awkward circumstances that left a lot to be desired. I have found this episode of the accused person too cheap to buy; I do not find it as plausible. The way the accused person narrated the episode sounded doubtful to me and the way he responded to my question why he would see her wife and a stranger in such awkward circumstances when darkness was around the corner and just proceeded with his journey without asking his wife was rather odd. It is not humanly possible that a person would see his wife on several occasions with a stranger in doubtful circumstances when darkness is around the corner and behave the way the accused person did; and yet have the audacity to confront that stranger in his office. And moreover, the accused person contradicted this episode when he said PW3 asked what his name was when he found him arrested at his (the VEO's) office. If the episode were true, PW3 would not have asked the accused person what his name was when he arrived at the VEO's office. The accused person seemed to say PW3 was not a stranger to him and that he confronted him in his office. However, PW3 stated that he did not know the accused person when PW1 mentioned him that he was the killer of her father. This piece of evidence makes the story of the accused person that PW3 was a lover of his second wife Susan implausible. In view of this rather unconvincing testimony of the accused person, I am of the firm view that the testimony of PW3 that he did not know the accused person is more credible. The accused person allegation to the effect that he heard later from PW3's friends that he would make sure that he "is lost" is but hearsay. The cumulative effect of the foregoing discussion is a finding that the accused person was properly identified at the locus in quo by PW1 and PW2. I therefore find it as a fact that the prosecution has proved beyond reasonable doubt that 'the accused person Amos Wilson @ Sankara Ntiboneka was amply identified ant the scene of crime a being the one who stormed into the kitchen of the deceased and hacked the deceased to death. 38 For the avoidance of doubt, I have considered the accused person's alibi as well. The accused person testified in his defence and the witnesses he called to testify in support of his case that at the material time, he was not at the scene of crime; he was with his family at his residence having returned from the market where he had gone to by relish. It is the requirement of section 194 (4) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 that an accused person who intends to rely on alibi in his defence must give prior notice to that effect. This section reads: "Where an accused person intends to rely upon an alibi in his defence, he shall give to the court and the prosecution notice of his intention to rely on such defence before the hearing of the case". But together with the requirement of notice of alibi under subsection (4) of section 194 of the CPA, the law took cognizance of the fact that some accused would bring about the defence of alibi during the hearing without issuing prior notice thereof. Subsection (5) of section 194 of the CPA was enacted to take care of such eventualities. This subsection provides: "Where an accused person does not give notice of his intention to rely on the defence of alibi before the hearing of the case, he shall furnish the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed". 39 And subsection (6) is intended to take care of situations where an accused person relying on an alibi in defence does not issue prior notice before the hearing in terms of subsection (4) of section 194 of the CPA nor does he furnish the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed in terms of subsection (5) of the same section. This subsection provides: "If the accused raises a defence of alibi without having first furnished the prosecution pursuant to this section, the court may in its discretion, accord no weight of any kind to the defence". The second accused person, having not issued any notice of alibi before the trial and before the prosecution closed its case, falls under the provisions of subsection (6) which gives the court discretion to accord no weight to such a defence. I have decided to accord no wait, as have already found as a fact that he was adequately identified at the scene of crime. This finding diminishes his alibi. It is the law in this jurisdiction founded upon prudence that a proper identification of the accused person at the locus in quo diminishes his defence of alibi. The accused person spent all his efforts and brought all his arsenals to prove that by the time he is alleged to have committed the offence, he was 40 at his home with his family. The accused is supported by his wife DW2 and son DW3 on this assertion. When in a case, like the present one, a defence.of alibi is raised and at the same time the case depends on the issue of visual identification, such defence must be subjected to visual identification. That is to say, once it is established beyond reasonable doubt that an accused was properly identified at the scene of crime, his defence of alibi collapses. This position of the law was stated by the Court of Appeal in the case of A b d a lla M ussa M o lle l @ B an jo o Vs th e D ire c to r o f P u b lic Prosecu tions, Criminal Appeal No. 31 of 2008 (unreported) wherein it observed: "The appeal stands on the issue of the appellant's identification at the scene of crime by PW 2 and PW 3. If the appellant was properly identified then his alibi must collapse". [Emphasis mine]. [Quoted by this court (Nyerere, 1) in R Vs Ib ra h im Yusuph C a iist W a kje ri R u k w i @ G akaya @ H a ifa n i @ B onge & 7 O thers, Criminal Case No. 28 of 2008 (unreported)]. Therefore, using the principle in the A b d a iia M ussa M o iie icase (supra), in view of the fact that the accused person Amos Wilson @ Sankara Ntiboneka was amply identified at the locus in quo as being the one who hacked to death the deceased Philimon Nkarango, his alibi collapses. I 41 take the accused person's alibi to be a futile attempt to save his otherwise sinking boat. I am satisfied that, for whatever motive known to him which motive is not relevant to me and the law, the deceased Philimon Nkarango was hacked to death in the manner described by PW1 and PW2 and caused his death in the manner described in the PMR (Exh. PI) by none other than the accused person Amos Wilson @ Sankara Ntiboneka. I highly regret my inability to join my highly esteemed ladies and gentleman assessors who entered a verdict of not guilty in favour of the accused person. However, I am comforted by the fact that I have, to my understanding, sufficiently demonstrated to the best of my ability why. As for the issue relating to malice aforethought, I stated from the outset that I am satisfied that whoever killed the deceased did that with malice aforethought. This malice aforethought can discerned from the nature of the wounds inflicted and the geographical part of the body on which the same were inflicted; the head. Now that I have found and held that it is the accused person who killed the deceased, I conclude that he did that with malice aforethought. Consequently, I convict the accused person Amos Wilson @ Sankara Ntiboneka for the murder of Philimon Nkarango as charged. DATED at Kigoma this 27th day of October, 2014. J. C. M. MWAMBEGELE JUDGE 42 Court: Judgment delivered in open court this 27th day of October, 2014 in the presence of Ms. Rugaihuruza, Learned Senior State Attorney, Mr. Rumenyela, Learned. Counsel for the accused person and ladies and gentleman assessors. J.C.M. Mwambegele, Judge, 27.10.2014 PREVIOUS RECORD: Ms. Rugaihuruza: The pray that the accused be sentenced as Per S. 197 of the Penal Code. MITIGATION: Mr. Rumenyela My Lord my hands are tied. I have nothing to add. ALLOCATUS I have nothing to add. I have a family that depends on me. I have two secondary school children who depend on me. 43 SENTENCE My hands are tied. There is only one punishment for murder. Under the provisions of S. 197 of the Penal Code, Cap. 16 of the Revised Edition, 2002 read together with S. 322 (1) and (2) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002, I hereby sentence the accused person Amos Wilson @ Sankara Ntiboneka to suffer death by hanging. J.C.M. Mwambegele, Judge, 27.10.2014 Court:- The accused told of his automatic right of appeal to the Court of Appeal of Tanzania. J.C.M. Mwambegele, Judge, 27.10.2014 44 Court: The assessors - Ms. Salama Kangeta, Mr. Ramadhani Kalovya and Alphonsina Kabenze - are thanked and discharged. J.C.M. Mwambegele, Judge, 27.10.2014 45