republic vs oliva do chengula others 2015 tzhc 2036 13 march 2015

IN THE HIGH COURT OF TANZANIA AT IRINGA e ORIGINAL JURISDICTION (Iringa Registry) CRIMINAL SESSION CASE NO. 36 OF 2012 THE REPUBLIC VERSUS 1. OLIVA D/O CHENGULA 2. GODFREY S/O GABRIEL @ MSAMBA 3. AMON S/O MUHAME 4. FILOS S/O LUSAKA 16/2/2015 & 13/3/2015 JUDGEMENT MADAM SHANGALI, J . The accused persons in this case namely OLIVA D/O CHENGULA hereinafter to be referred as the 1st accused; GODFREY S/O GABRIEL @ MSAMBA hereinafter to be referred as the 2nd accused; AMON S/O MUHAME hereinafter to be referred as the 3rd accused and FILOS S/O LUSAKA hereinafter to be referred as the 4th accused stand charged jointly and together with the offence of Murder Contrary to Section 196 of l the Penal Code, Cap. 16, R.E. 2002. It has been alleged by the prosecution/Republic that on or about the 3rd day of April, 2010, at Ilala area within the Municipality and Region of Iringa, the aforementioned accused persons jointly and together murdered one ZAKARIA S/O GABAKAMA. When the charge was read over to the accused persons, they all denied to have committed the alleged offence. The prosecution in this case was led by Mr. Abel Mwandalama, learned State Attorney assisted by Ms. Pienzia Nichombe, learned State Attorney while the defence side was marshaled by Mr. Kaijage Rwezaura; Mr. Alfred Kingwe; Mr. Mussa Mhagama and Mr. Jackson Chaula, learned advocates representing the four accused persons respectively. In their efforts to prove the case, the prosecution side was able to call ten (10) witnesses and produced several exhibits while the defence side managed to call five (5) witnesses to counter prosecution case. During the preliminary hearing which was conducted on 19th February, 2013 several issues were recorded in the memorandum of matters not in dispute by both the prosecution and defence sides. For the 1st accused it was agreed as follows: 1. That Zakaria Gabakama was her husband. 2. That Zakaria Gabakama is dead. 3. That on the fateful date she was tied up with ropes by the robbers. 4. That mobile phone Nokia sliding model wasstolen. 5. That on the fateful date at about 20.00 hours she communicated with Godfrey Msamba (2nd accused ). 6. That she was arrested in connection with the offence of murder. For the 2nd accused it was agreed as follow's:- 1. That on the fateful date he communicated by phone with Oliva Chengula (1st accused). 2. That he was arrested in connection with a murder case. For the 3rd accused person it was agreed as follows:- 1. That he was arrested while in possession of a t mobile phone, make Nokia - sliding model. 2. That it was the 4th accused who gave it to him. For the 4th accused person it was agreed as follows:- 1. His Mobile phone shows that it communicated with 1st accused person. 2. He was arrested and charged with ,an offence of murder. » As I have pointed above, the aforementioned issues were agreed upon by both prosecution and defence sides and therefore there was no need for either party to call for evidence to prove or deny them. Let me now re-visit the prosecution evidence by starting with the testimony, of PW8, Sarah' Gabakama, the daughter of the deceased. This witness testified to the effect that in the night of incidence (2/4/2010) the whole family namely, the deceased (father); the 1st accused (step mother), PW9 Peace Gabakama (brother), Eusebia Gabakama (sister), Diadore Shabani, Jackson Kajura (uncle) and their two guests namely DW5 Aida Chengula (1st accused's sister) and Jane @ Witness were in the same compound. That after evening meal and prayers the deceased and his wife (1st accused) proceeded to their master bedroom to sleep leaving the rest watching television at the sitting room. The boys, namely Jackson Kajura, Diadore Shabani and Peace Gabakama (PW9) went to their outer house (nyumba ya uani) but remained outside the outer house (uani) in order to prepare chicken, fish and juice meant for the next day's meal which was a Sabbath day. That within a short time Aida Chengula proceeded to the guest room located within the main house to sleep while she (PW8), Eusebia and Jane @ Witness proceeded to their room adjacent to the master bedroom of their parents, to sleep. r PW8 testified to the effect that in that night she was the last person to sleep because she was busy arranging her clothes in the cupboard. As a result she was the last one to lock the main door from inside and then retired to sleep. She stated that at about midnight and before gaining her sleep she heard somebody opening her parents' bedroom door. Then she heard some foot steps along the corridor but was afraid to get out because there was a time when her step mother (1st accused) warned her not to get out of her room in the night because of the presence of bad spirits (mashetani) in the house. PW8 testified that, after a short while she heard the 1st accused shouting for help. That she quickly responded, only to find the master bedroom open while the 1st accused crying. She heard her deceased father groaning and the 1st accused directed her to call her brothers. PW8 rushed to call her brothers who were late to respond. She testified that the first person to reach at the scene was Peace Gabakama (PW9) and that she noted that the 1st accused's hands were tied with ropes from behind. PW8 claimed that when Peace Gabakama (PW9) asked the 1st accused what happened, the l.st accused replied that there was a quarrel but later changed her statement and said they were invaded by bandits. According to the evidence of PW9, when he reached in the room of his parents he found his father (deceased) asleep on the bed in supine position while helplessly groaning and bleeding profusely on his forehead. The 1st accused was seated on the bed while her hands tied with a rope from the back. PW9 testified that when he inquired from the 1st accused on what happened, the 1st accused claimed that there was a quarrel but later changed her statement and said they were invaded by bandits. It is on the evidence of PW8 and PW9 that following that awful incidence they were all confused but PW9 managed to rush for transport and ferry the deceased to the hospital while accompanied by the 1st accused, Jackson, Kajura and Aida (DW5). Both PW8 and PW9 stated that they don't know who untied the 1st accused. That, when they reached at thfe hospital their father was declared dead. PW10, Dr. Christantus Ngongi who performed the postmortem examination on the body of the deceased testified to the effect that the death of the deceased was caused by intracranial haemaorrhage caused by severe head injuries. He identified and produced the Postmortem Examination Report before the court. It was admitted and marked Exhibit P3. It shows that the head of the deceased was assaulted on 6 the forehead with a heavy object causing a wound of about 2.5 inches which penetrated into the skull causing a big fracture. In the cause of police investigation it was found that among the items stolen from the house of the deceased during the robbery incident was one mobile phone, Nokia make, sliding model (Exhibit PI) which was found in possession of the 3rd accused person. On .being questioned by the police the 3rd accused claimed that he was given the alleged mobile phone by the 4th accused. The actual possession of Exhibit PI was established through the evidence of PW1, PW2, PW3 and PW4. In short PW1, Witness Gaitan Mhangwa, a paramour of the 3rd accused, testified to the effect that she was given Exhibit PI by the 3rd accused in order to facilitate their communications. That she stayed with Exhibit PI for sometimes but started receiving anonymous calls asking her about the lawful ownership of Exhibit PI. That, she decided to report the matter to the 3rd accused and the later decided to sell Exhibit PI to PW2 Kibuda Balama. According to the testimony of Kibuda Balama, he stayed with the Exhibit PI for a short while but failed to operate it smoothly due to his poor education and knowledge. PW2 stated further that he decided to resale Exhibit PI to his brother Ramadhani Balama PW3. Having purchased it, PW3 gave it to his wife Jakomina, PW4 who continued to use the 7 0 mobile phone until September, 2010 when she was arrested by the police. In her testimony ,PW4 testified on how she was given Exhibit PI by her husband PW3 and later seized by the police. She stated that while in the company of her husband (PW3) they were able to lead the police to the house of Kibuda Balama PW.2. PW7, D/CPL. Florian, the main police investigator of this case testified to the effect that on 3/4/2010 he visited the scene of crime and drew a sketch map of the scene of crime, Exhibit P2. That in his further investigation he discovered that there was no broken gate, door, window or any House wall interference. He discovered that the deceased was killed in his bedroom where he was sleeping with his wife, the 1st accused. PW7 stated that when he interrogated the 1st accused, she claimed that the bandits invaded them and managed to steal one brief case of the deceased, one subwoofer radio and 3 mobile phones; one mobile phone belonging to her and two belonging to the deceased. PW7 stated further that at the beginning and having recorded the statements of several witnesses including that of the 1st accused and the children of the deceased he suspected the 1st accused and his sister Aida Chengula (DW5). That the two were arrested and charged with the offence of murder. PW7 testified to the effect that, later he was informed by ASP Massawe (PW5) that the 2nd, 3rd and 4th accused persons had been arrested. PW7 went on 8 stating that after recording the caution statement of the 1st, 2nd and 3rd accused persons he discovered that there were bandits who invaded the house of the deceased, committed robbery and killed the deceased. He stated that although he was not the one who arrested the 2nd, 3rd and 4th accused persons, the trio were connected in the case due to the mobile phone communications and possession of the mobile phone Exhibit PI. As a result a nolle proseque was entered in favour of Aida Chengula (DW5) and charge of murder preferred against the present four accused persons. In order to establish that the mobile phone, nokia make, sliding model, the property of the 1st accused reported to have been stolen during the robbery incident is exactly the mobile phone, nokia make sliding model Exhibit PI found in possession of the 3rd accused, the prosecution relied on the evidence of PW5 and PW6. PW5, ASP Massawe, a police investigator specialized in ciber crimes testified to the effect that having obtained the 1st accused's mobile phone line number namely 0768884116 he communication with the Vodacom Mobile Company requesting for a two weeks communication record report involving that number, PW5 stated that later he received the report and noted unusual communication which indicated that on 2/4/2010 the 1st accused made two communications to two 9 different mobile phone numbers on the same day. The first communication which was made about 10 times on that day was recorded in the name of Godfrey Msamba, the 2nd accused. The second communication was in the name of Filosi Lusaka, the 4th accused. The witness stated that he could not remember the telephone line numbers of the 2nd and 4th accused persons but he was able to discover that the 1st accused who was a married woman and also a concubine of the 2nd accused. He also discovered that the 4th accused is a well known criminal who have been arrested in several times by the police. PW5 said that in his investigation he discovered that the 4th accused was held at Mbarali Police Station where he was facing another charge of armed robbery. PW5 stated further that when the 4th accused was interrogated he denied to have known the 1st accused but when his mobile phone was inspected it was found with a telephone line number of 1st accused saved therein by the name of "Shangazi”. PW5 went on testifying that although the telephone line number of the 1st accused was no longer active, the Vodacom Mobile Company gave its serial number cum IMEI number as 358244032019910. He also discovered that the mobile phone Exhibit PI had acquired another mobile phone line number which was being used by Jakomina Mtweve (PW4). PW5* testified that from there PW4 was arrested in possession of Exhibit PI and revealed on how she obtained it. 10 In his evidence PW5 identified Exhibit PI as a mobile phone, sliding model with three colours namely black, silver and gold. He stated that he was able to check its serial numbers cum IMEI (International Mobile Equipment Identity) number by pressing "STAR", "HARSH", "06", "HARSH" and discovered that its IMEI number was 358244032019913 which is equivalent to the IMEI numbers provided by Vodacom Mobile Company with exception of the last digit. The Vodacom Mobile Company IMEI number ended with "0" digit but Exhibit P i's IMEI number ended with digit "3". PW5 testified to the effect that on his inquiry from the investigation department of Vodacom Mobile Company on the aforesaid difference in numbers he was informed that such an irregularity or difference in numbers is normal and insignificant because the last digit indicate the version (toleo) only. When the witness was intending to produce the Vodacom Mobile Company communication Report as exhibit, the defence raised an objection on the ground that the report should be produced by its maker or an expert from the Vodacom Company because they would prefer to cross-examine him on that report. The objection was sustained. PW5 went ahead and testified that he later showed Exhibit PI to the 1st accused who identified it as her stolen mobile phone. He also showed Exhibit PI to the children of the li deceased who equally identified it by its colours and scratch marks to be the stolen 1st accused mobile phone. PW6, Galos Baktazari was the Iringa Regional Data Sales Manager of Vodacom Mobile Company. He stated that on 13/2/2014 he was asked by the two officers from the office of R.C.O. to give some explanation regarding the report from the Vodacom Company Headquarters, Dar-es-Salaam; particularly on the issue of mobile phone serial numbers or IMEI numbers. He stated that the numbers involved was 358244032019913 and that the first 8 digits indicated Type Allocation Code (TAC); the following 6 digits indicate the actual serial number of the phone and the last single digit indicate Global System for Mobile Communication (GSMC) which is the version. PW6 stated that the mo$t important digits are the first 14 digits. He opined that sometimes if there is a problem to record or identify the last digit the system shows zero (0) digit. He stated that where the system fails to identify the last digit the identification is not fatal because the last digit is the version only. In a robust cross-examination by the defence counsel, PW6 confessed that he is a Data Sales Manager dealing with marketing and sales and that he have no expertise in telecommunication engineering matters. 12 In defence, all accused persons elected to give a sworn defence and categorically denied to have committed the alleged offence. In her long defence the 1st accused (DW1) stated that she was married to the deceased on 12/12/2009 and that when the incident occurred in the, night of 3/4/2010 she had been with her deceased husband for three months only. She testified to the effect that in that night the whole family was in the house including her sister Aida Chengula (DW5) who was summoned by the deceased to collect some money for Easter holidays. She stated that after evening meals she proceeded with the deceased to their master bedroom to sleep leaving children at the sitting room watching television. That, at that time which was about 9.00 p.m. the boys Jackson Kajura, Peace Gabakama (PW9) and Diadore Shabani were yet to return from their evening walk. She claimed that two guests namely Aida Chengula (DW5) and Witness @ Jane were supposed to share one bedroom but Witness insisted to sleep in one room with PW8 and Eusebia. The 1st accused (DW1) stated that at about 12.00 midnight she woke-up and went out to stop the boys who were making much noises. She stated that the boys were busy preparing chicken, fish and juice for the next day's meal. DW1 stated that when she went out there was nobody at the sitting room and all doors were intact but the entrance door leading to the sitting room was unlocked to enable the boys to preserve 13 the chicken, fish and juice in the fridge situated at the sitting room. DW1 stated that according to their arrangements, the boys were supposed to awake Sarah (PW8) after preserving the items in the fridge in order to close and lock the entrance door. DW1 stated that having warned the boys she went back to sleep. She claimed that their master bedroom door had no keys as a result they used to close the door without locking it. DW1 stated that after sometimes she was awaken by a big sound at the door and suddenly she saw two people inside the room. She tried to shout for help but she was stopped and threatened to be killed by saying " Ukipiga kelele tutakuua". That the two people were dressed in long black clothes while their faces were covered. DW1 stated that she was not able to identify any of the two bandits although there was enough light from the electricity tube light. She complained that the bandits assaulted the deceased by beating him and tied her hands from the back with ropes and ordered her to sleep down by stomach (kifudifudi). She complained that the bandits were asking for money and the deceased's laptop. After a short while the bandits 'went away and she managed to shout for help. DW1 stated that the first child to respond was PW9 and later Jackson Kajura and Aida Chengula (DW5). She told them that they were invaded by bandits. DW1 stated that PW9 rushed for transport in order to ferry the deceased to the hospital while Jackson Kajura rushed to the sitting room, 14 picked a knife and untied her hands by cutting the ropes. DW1 testified that when she looked at the deceased who was groaning on the bed she realized that he was severely injured on his forehead and was bleeding profusely. She further stated that later she realized that the bandits had stolen their 3 mobile phones. That her stolen mobile phone was Nokia make, sliding model and black in colour. When DW1 was shown Exhibit PI she stated that it resembles her stolen mobile phone but it is not the one. She continued to state that the last time she used her mobile phone was on 3/4/2010 at about 8.00 p.m. when she communicated with the 2nd accused inquiring about their business matters. She claimed that being a petty business woman dealing with vitenge materials she used to employ the 2nd accused's services as a truck driver to ferry her vitenge materials from Dar-es-Salaam to Iringa. It is on the evidence of DW1 that later in that night she discovered that even their subwoofer radio was stolen by the bandits. She stated that later, when the motor vehicle arrived they rushed the deceased to the hospital where he was pronounced dead. DW1 complained that when her statement was being recorded at the police station by PW7, several police officers were present including PW5 who was directing his own words to be recorded against her and eventually she was / • 15 forced to sign that-statement. DW2, the 2nd accused testified to the effect that he is a driver of a Fuso truck dealing with transportation of different types of luggages. He claimed that he knows the 1st accused as a business-woman and that for several occasions he has been hired by the 1st accused to ferry her luggages from Dar-es-Salaam to Iringa. He denied the existence of any intimate relationship between him and the 1st accused. He claimed that he has never confessed to PW5 that the 1st accused is his lover. He complained that he was arrested by the police on 6/1/2011 and accused for having love affairs with a married woman but later he was charged with the present offence. DW2 stated that apart from the efforts of PW5 to connect him with the charge there is no evidence to connect him with the offence of murder. DW3, the 3rd accused testified that he is a married man with one child. He totally denounced PW1 to have been neither his wife nor his lover and stressed that he « has never fathered her child. He stated that he has never gave her a mobile phone (Exhibit PI) or sold the same to Kibuda PW2 or to any other person. DW3 argued that PW7 claimed to have recorded his caution statement where he confessed on several allegations but the alleged caution statement or extra judicial statement was not produced in court to prove the allegations. 16 He stated that he was arrested by the police on 16/10/2010 on allegation of house breaking and stealing but later charged with murder. He complained that those who were arrested in possession of stolen mobile phone managed to discriminate themselves and incriminate him and the police decided to believe them. DW4, the 4th accused testified to the effect that he is a businessman operating a retail shop at Igumbiro. That on 22/9/2011 he was arrested by the police and charged along with others. He denied to have confessed anything before the police or justice of peace. He admitted that when the police seized and inspected his mobile phone they detected the telephone mobile number of the 1st accused recorded as "Shangazi” but he stated that, that name and the number were recorded in his mobile phone by his young brother Shabani 0 Lusaka who is a business partner of the 1st accused. He stated that his young brother deals with women clothes business from Dar-es-Salaam. DW4 stated that he told the police about the business relation between the 1st accused and his young brother but the police ignored the story. He castigated the evidence of PW7 as false because the alleged caution statement is nowhere to be seen and the 3rd accused (DW3) has categorically denied to have acquired a mobile phone from him. s . > 17 DW5, Aida Chengula, who testified in favour of the 1st accused told this court on- how she was summonsed from Mgera village by the deceased to collect some money for Easter holidays for his in-laws living in that village. That when she arrived at the house she found both 1st accused and deceased not present as they were in town. She decided to wait for them but on their arrival it was too late for her to go back to the village. It was resolved by the deceased and 1st accused that she should spent that night in their house. DW5 0 stated that in that evening everything appeared normal and after the evening meal together, the 1st accused conducted a prayer. Later the 1st accused showed her a guest room which she was supposed to sleep with Witness. DW5 testified that after a while both the deceased and 1st accused proceeded to their room to sleep leaving the rest at the sitting room watching television. She stated that at the sitting room there were PW8, Eusebia and Witness and later PW9, Diadore and Kajura arrived from their evening walk. The witness stated that later she decided to go to sleep leaving the rest at the sitting room. She further stated that in the midnight she was awaken by PW8 and when she opened the door she saw PW8 and Jackson Kajura. PW8 told her that they have been invaded by bandits. They all proceeded to the room of the deceased. She saw the deceased asleep on the bed face up and bleeding on his forehead while the 1st accused was sleeping face down and her hands tied from back with ropes. DW5 stated that 18 they were all shocked but Jackson rushed for a knife and cut the ropes. She stated that at that time PW9 had rushed out to fetch a motor vehicle in order to rush the deceased to hospital. She stated that when the motor vehicle arrived they rushed the deceased to hospital but died. DW5 complained that when they returned home she was arrested together with the 1st accused by the police because they were suspected to have killed the deceased. During cross examination by the State Attorney the witness admitted that she was a co-accused in the case and that she was released on no//e proseque. She admitted that her caution statement was recorded by the police. When she was shown the caution statement by the State Attorney she identified it and agreed the same to be produced as exhibit. However the statement was admitted for identification purposes only (ID1). When the caution statement was read over before the court PW5 denounce it and claimed that she could not remember the contents of the caution statement because it was recorded more than four years ago. In short, contrary to the DW5's testimony, the caution statement (ID1) heavily incriminated the 1st accused. In short that is the evidence of the prosecution and defence sides. The most important question before me is 19 whether on the available evidence it is the accused persons or part of them who killed the deceased. In my summing up to the Lady and Gentlemen assessors, I reminded them'on what constitutes the offence of murder. I told them the position of the law is that any person who, with malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder. That, malice aforethought is an intention to cause death or intention to commit offence. It is normally established by the prosecution evidence proving or showing the manner at which the deceased was killed, the weapon used, amount of force applied and the part of the body aimed by the accused persons. This may also include the conduct of the accused persons after the commission of the,offence i.e. disappearance or destroy or hide of evidence. I told the Lady and Gentlemen assessors that where the offence has been committed by more than one person, common intention must be established i.e. common intention to execute unlawful acts which raises the presumption of common intention. I also reminded the assessors that in a criminal case, the duty to prove the case is upon the prosecution side and the standard imposed by the law is to prove beyond reasonable doubt. Weakness of defence is not a blessing to the prosecution case. The prosecution is not 20 allowed to use weakness on the defence side to build its case. The defence side have no duty to establish its case meaning that the accused persons have no duty to prove their innocence. They are only required to raise a reasonable doubt on the prosecution evidence. I went ahead and reminded them that where a reasonable doubt has been established in the mind of the court, the same must be resolved in the benefit of the accused person. I also revealed to the Lady and Gentlemen assessors as to what transpired during the preliminary hearing of this case conducted on 19/2/2013 by revealing to them the matters agreed in the memorandum as matters not in dispute and which did not require further evidence from both sides. On the issue of circumstantial evidence I told them that where the evidence is circumstantial, such evidence must be established to have been closely connected with the principal fact sought to be inferred from those circumstances. The fact must irresistibly point to the guilty and be incapable of any other reasonable hypothesis or explanation. In other words the circumstances should be of a conclusive nature and tendency. There must be a conclusive chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. 21 0 I also reminded them the position of the law regarding the evidence based on suspicion; that suspicion, however strong can not take the place of proof in a criminal case. Suspicion cannot be the basis of a conviction in a criminal charge because suspicion is a pure conjuncture. On the issue of a doctrine of recent possession I told the Lady and Gentlemen assessors that the position of the law is that where a person is killed in a house and the murderer stole goods therefrom and after few days the accused is found in possession of the stolen goods that raises the presumption that the accused was the murderer and unless he give reasonable explanation on how he acquired the goods, he would be convicted of the offence of murder. The most important ingredients to be proved are:- One; that the goods or property is positively proved to be the exact property of the victim or complainant; Two; that the property was found in possession of the accused; Three; that,the property was recently stolen from the complainant; and 22 Four; that the stolen goods constitutes the subject of the charge against the accused. t In my summing-up I also pointed .on the issue of credibility of witnesses, contradictions and inconsistencies and the duty of the court to address them and find whether they are minor or they go to the roots of the case. After that I reminded them, albeit in short the evidence of 10 prosecution witnesses and 5 defence witnesses. Having done so, the first Gentleman assessor returned a verdict of guilty on 1st, 3rd and 4th accused persons and declared 2nd accused not guilty. The second gentleman assessor returned a verdict of guilty on the 1st, 2nd and 3rd accused persons and not guilty on the 4th accused person. The third Lady assessor returned a verdict of guilty on all accused persons. The obvious diversity opinions from the Lady and Gentlemen assessors were not a surprise to me because the case appears to be involved and quite an intriguing homicide. Let me now discuss and evaluate the' evidence with the assistance from the both counsel submissions. There is no dispute that one Zakaria Gabakama is dead and that he was unlawfully killed on 3rd April, 2010. This fact 23 is found in the evidence of PW5, PW7, PW8, PW9, PW10, DW1, DW5 and memorandum of matters not in dispute. Therefore it is certain that whoever assaulted th e ’ deceased in that night had malice aforethought. * He or she intended to kill the deceased. Secondly, there is no dispute that in the night of incident the house of the deceased was invaded by unknown bandits who managed to penetrate into the house without any breakage and direct to the master bedroom of the deceased and 1st accused. In there, the bandits or robbers seriously assaulted, the deceased and caused his death. They also tied the 1st accused's hands with ropes from behind and ordered her to sleep in prone position and remain silent. Also in that incident several items were stolen including the 1st accused's mobile phone, Nokia make, sliding model. These facts are found in the memorandum of matters not in dispute listed by the parties during the preliminary hearing held on 19/2/2013. They are also established in the testimonies of PW5, PW7, PW8, PW9, DW1 and even DW5. The most contentious question through out the trial is whether the four accused persons are the^one who killed the deceased. Furthermore how could the 1st accused participated in the killing of the deceased while herself was a victim of a robbery incident which is not in dispute. In this connection the 24 prosecution had no witness whcr saw any of the accused persons killing the deceased. The 1st accused who witnessed the robbery incident was not able to identify any of the bandits. The prosecution case depends on circumstantial evidence and the doctrine of recent possession. It is Exhibit PI which appears to connect all accused persons with the alleged offence. ASP Massawe (PW5) and D/CPL. Florian (PW7) suspected the accused persons as the persons involved in the killing. The suspicion started with the investigation that was conducted through tracing the stolen mobile phone of the 1st accused with telephone line No. 0768884116. Upon the Vodacom Company's Report on Communication record, PW5 discovered what he called "unusual communications". That the 1st accused and 2nd accused were discovered to i have known each other and on the material date they communicated 10 times. The 1st accused also had communicated with telephone line numbers of the 4th accused twice but the prosecution failed to retrieve or disclose the actual telephone line numbers of the 2nd and the 4th accused persons. They also failed to disclose the nature or contents of the alleged communications or conversations. However, it is also in the evidence of PW5 that when the i cell phone of the 4th accused was checked it was found with the 25 telephone line number of the 1st accused saved as "Shangazi". When the 4th accused was questioned about that number he stated that it was his young brother Shabani Lusaka, the business partner of the 1st accused who has saved that phone line number in his mobile phone. Then the Vodacom Company managed to retrieve the IMEI number of the l st; accused's mobile phone which is No. 358244032019910 which is also the serial number. It was then discovered that the cell phone with the same serial or IMEI number was used by PW4. When PW4 was arrested and questioned she disclosed how she obtained the cell phone and the same was found to have originated from the 3rd accused person. PW.5 was able to identify Exhibit PI as Nokia make, slid mode with three colours i.e. black, silver and Gold. When PW5 checked the IMEI number of Exhibit PI he discovered that it has a different IMEI number from the cell phone that was alleged to have been used by 1st accused to communicate with the 2nd and 4th accused persons. Exhibit Pi's; IMEI number was 358244032019913. PW5 was then told by the Vodacom Company that the irregularity or abnormality of the differences in those numbers was minor and normal, otherwise the IMEI number is correct. PW5 went on testifying on hearsay evidence about the accuracy of the number but eventually turn round and admitted to have made a mistake that he once recorded the mobile phone number of the 1st 26 accused to be 0768488116 which is different from the earlier one 0768884116. When PW5 was intending to produce the Vodacom Company Communication record report as exhibit, the defence side raised objection as stated hereinabove. That objection was sustained and the prosecution promised to call the author of the report or expertin telecommunication engineering to tender the report. The prosecution called P\A/6, who suffered a vigorous cross-examination from the defence counsel and admitted in court that he deals with marketing and sales and that he have no expertise in telecommunication matters. He revealed that he was only directed by his office to give some explanations on the matter. As a result even the alleged Vodacom Company Communication re'cord report was not tendered in court as exhibit. At this juncture, Exhibit PI is highly questionable as to whether it is the exact mobile phone, property of the 1st accused which was stolen during the incident. In her own testimony the 1st accused stated that Exhibit PI resemble her stolen mobile phone tput it is not the one. All prosecution witnesses who attempted to identify Exhibit PI ended up with mentioning three colours namely black, silver and gold as if it 27 is the only Nokia phone, sliding model with such colours manufactured in the world. After all some of the prosecution witnesses admitted during the cross-examinations that they were told by the police on what to testify in court particularly on the issue of identification of Exhibit PI. •i Furthermore PW5 has admitted that he made a mistake in recording the mobile phone number of the 1st accused and in my opinion that mistake could have resulted to the differences in the serial or IMEI numbers. Secondly, the difference in the IMEI numbers also proved that Exhibit PI is not the 1st accused's or Shangazi's stolen mobile phone. Worse more the Vodacom Company's Communication Report was neither explained in court by its author or expert nor produced in court as exhibit. Therefore under the circumstances the doctrine of recent possession can not be applicable in this case because there is no evidence to prove beyond reasonable doubt that Exhibit PI is the exact mobile phone recently stolen in the house of the deceased during the robbery incident. See the decisions in cases of Mustapha Darajani Vs. The Republic, Criminal Appeal No. 242 of 2008 Court of Appeal of Tanzania at Iringa Registry (unreported); Musa Omari Vs. The Republic, Criminal Appeal No. 83 of 2000, Court of Appeal of Tanzania at Dar-es-Salaam Registry (unreported); Ramadhani Ayubu Vs. 28 Republic, Criminal Appeal No. 122 of 2004, Court of Appeal of Tanzania at Tanga Registry (unreported); Jeremia Samson Msamba and 2 Others Vs. Republic Criminal Appeal No. 21 of 1998 Court of Appeal of Tanzania at Dodoma Registry (unreported); and Director of Public Prosecutions Vs. Joachim Komba (1984) TLR 213. In the present case, the prosecution side capitalized on the issue of mobile phone communications between the accused persons but no prosecution witness was able to reveal before the court what was being communicated between the accused persons. The question is how can this court be used to fill that gap and try to imaging the nature and content of communication and whether they were related to the serious offence laid against them. As I have pointed hereinabove this homicide is heavily based on circumstantial evidence and suspicion. For the circumstantial evidence to warrant conviction it should lead to inevitable conclusion that the death was the act or contrivance of the accused persons; in other words the evidence should indicate that the accused persons are guilty and not other possibilities. There is no tangible evidence to connect the accused persons with the offence of murder. Position of the law is that, where the evidence against the accused is wholly circumstantial the facts from which an inference adverse to the • - . 29 accused is sought to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be inferred. See the cases of Ally Bakari & Pili Bakari Vs, Republic (1992) TLR 10 (CA); Samson Daniel Vs. R. (1934) EACA 134 and Dhalay V. R. (1995-1998) 1 EA 29. It is also trite law that suspicion alone, however grave is not a basis for conviction in a criminal trial. Inspite the fact that there is a cloud of suspicion in this case against the 1st accused, there is no tangible evidence to book her. Apparently it is the prosecution itself which conceeded that there was a robbery incident of which the 1st accused was a victim. See the cases of Alikiadi William @ Supa Vs. The Republic Criminal Appeal No. 188 of 2005 (CA) Mwanza Registry {unreported); Katabe Kachochoba Vs. Republlic (1986) TLR 170 and Aidan Mwalulenga Vs. The Republic Criminal Appeal No. 207 of 2006 CAT at Dodoma (unreported). To say the least, there are many questions than answers in this case. For instance why PW7 initially suspected the 1st accused and DW5 as the murderers while there were several inmate in that house. In a way it seems even the invasion of bandits was not established beyond doubt because it could have been an inside work. One of the people inside could have killed the deceased or collaborated with the bandits. Again the f 30 sale transaction of Exhibit PI alleged to have been performed between the 3rd accused, PW1, PW2, PW3 and PW4 raises eyebrows because apart from the words of mouth from the witnesses there was no other evidence to prove that long and questionable sale and exchange transition of Exhibit PI. No wonder the 3rd accused in his defence argued that those who were found in actual possession of Exhibit PI managed to discriminate themselves and incriminate him and the police decided to believe them. All these doubts must be resolved in favour of the accused persons. See Zakaria Japhet and others Vs. The Republic Criminal Appeal No. 37 of 2003 CA, at Arusha (un reported). In my considered opinion the defence raised by the accused persons especially that of 1st accused is strong and probable. However, I have much reservations on the testimony of DW5. This witness was seriously shaken by the prosecution when she was shown her caution statement (ID 1) which seriously contradicted her testimony in court. The credibility of this witness, who was once’ a co-accused was shaken to the hilt. She nearly collapsed at the witness box. It appears that it was the. same caution statement which facilitated and lured the police to enter nolle proseque against her but only to turn round as a defence witness. In the 31 circumstances and bearing in mind her position as a once co-accused turned defence witness her testimony must be treated with great caution. However, since the position of law is that the onus is* always on the prosecution to prove the case beyond reasonable doubt the weakness of the defence case is insignificant. See the case of Christian Kale and Rwekaza Bernad Vs. The Republic (1992) TLR-CA. In addition, in the case of Kibwana Saleh V. Republic (1968) HCD 391, the court observed that whenever a witness is proved to have made a statement on oath inconsistent with the statement previously made by him, the credibility of that witness is completely destroyed, unless he can give an acceptable explanation for the inconsistence. It is for the aforementioned reasons that I disagree and principally depart with any guilty verdict opinion against any of the accused persons reached by the Lady and Gentlemen assessors. It is for the same reasons that I agree with all defence counsel that the prosecution has failed to prove its case beyond reasonable doubt. There is no tangible and cogent evidence to prove that it is the accused persons who killed the deceased. I am certain that even the prosecution side is not sure as to who killed the deceased. •One more word, I am grateful for the robust representation of the accused persons and thunderous 32 cross-examinations conducted by the defence counsel which left no stone unturned. Likewise the prosecution counsel are recommended for their efforts to facilitate the ends of justice. In conclusion I hereby find all accused persons not guilty and acquit them accordingly. The accused persons are to be released forthwith from custody unless otherwise lawfully held on another matter. It is so ordered. M. S. SHANGALI JUDGE 13/3/2015 Judgement delivered todate 13th March, 2015 in the presence of Mr. Abel Mwandalama, State Attorney representing the Republic and in the presence of Mr. Rwezaura, learned advocate for the 1st accused, Mr. Alfred Kingwe, learned advocate for the 2nd accused also holding brief for Mr. Mhagama advocate for the 3rd accused and Mr. Jackson Chaula, learned advocate for the 4th accused. t M. S. SHANGALI JUDGE 13/3/2015 33 Order:- Exhibit PI to be returned to the police/prosecution. Right of appeal Explained. M. S. SHANGALI ’ JUDGE 13/3/2015 Court:- All assessors are thanked. M. S. SHANGALI JUDGE 13/3/2015 34