20150313 TZHC Iringa

.- _· .·.IN THE HIGH COURT OF TANZANIA AT IRINGA ORIGINAL JURISDICTION (Iringa Registry)· ·CRIMINAL SESSION CASE NO. 36 OF 2012 THE REPUBLIC VERSUS 1. OLIVA D/0 CHENGULA 2. GODFREY S/0 GABRIEL @ MSAMBA 3. AMON S/0 MUHAME 4. FILOS S/0 LUSAKA ' 16/2/2015 & 13/3/2015 JUDGEMENT ' MADAM SHANGALI, J. The accused persons in this case namely OLIVA D/0 CHENGULA hereinafter to be referred as the 1st' accused; GODFREY 5/0 GABRIEL @ MSAMBA hereinafter to be referred as the 2 nd accused; AMON S/0 MU.HAME. hereinafter to be referred as the 3 rd accused and FILOS S/0 LUSAKA hereinafter to be referred as the 4 th accused stand charged jointly and together _with the offence of Murder Contrary to Section 196 of 1 • '• . ~ • ·: ·• ,-~-.~- ~ -· -~ · the Penal Code, Cap. 16; R.E. 2002. It has been alleged by the prosecution/Republic that on or about the 3 rd day of April, 20.10, at Ilala area within the Municipality and Region of Iringa, the aforementioned accused persons jointly and together murdered one ZAKARIA 5/0 GABA KAMA. 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. P,ienzia Nichombe, . ' le~rne~ State Attorney while the de~~nce side was marshaled .. :- <,' . . ,I"; .:. ' by Mr. Kaijage Rwezaura; Mr. AlfredI Kingwe; · Mr .. Muss.a . . • Mhagama and Mr. Jackson Chaula, learned . advocates ' representing-the four accused person's respectively. · In their efforts to prove the · case, the prosecution side was able to call ten (10). witnes·ses and produced several exhibit? while the defence side managed to call five (5) witnesses to counter prosecutio~ 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. 2 I, .:../ For the 1st accused it was agreed as follows: l. 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 was stolen. 5. That on the fateful date at about 20.00 hours she · communicated with Godfrey Msamba (2 nd accused). 6. · · That she was arrested in connection with the offence of murder . . For the 2 nd accused it was agreed.as follows:- 1. That on the fateful date he communicated by phone with Oliva Chengula (1s t accused). · 2. That he ~as arrested in. connection with a murder case. . rd For the 3 accused person i(was agreed -as follows:- i. That he was arrested while in possession of a .. ' ' mobile phone, make Noki~ - sliding model. 2. That it wa~ the -:4 th accused who gave it to him. For the .4 th accused per-son it was agreed as follows:- 3 1. His Mobile phone shows that it cbm~uriicated· with 1st accused person. 2. He was arrested and- charged with ·an offence of murder. As I have pointed above, tti·e 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), Diador,e Shabani, Jackson Kajura (uncle) and their two guests namely DWS Aida Chengula (1 st accused's sister) and Jane ~ Witness were in· ~he same compound. That' after ev·ening meal and prayers the deceased and his wife (1 st accused) proc~eded to their master bedroom to sleep leaving. the rest ·watching television at the sitting· roo.m. 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 4 withiri a sh.ort'time Aida Clieng'ula proceeded to the guest room located vvithin the main house to sleep while she (PWB), Eusebia a_nq Jane @ Witness proc~eded to their room adjacent to the master bedroom of their parents, to sleep. PWS testified i:o the eff~c:t th9t in that night she was the fast person to sleep · because she was busy arranging her cloth_~s in the ~upboard. As a. result she was the last one to lock the main door from inside an_d then retired to sleep. She stated that at _about midnight and before gaining her sleep she tieard somebody op·ening her parents' bedroom door. t'' . Then stie heard some foot steps along the corridor but was afraid to . . get out because there was a time when her step mother (1 st accused) warned her not to g_et out of her room in. the night because of the presence of bad spirits (mashetani) in the . . house~ PWS testified that, after a short while she heard the 1 st accused shouting for help. That she quickly responded, only to find the master bedroom open. while the 1 st accused crying. She heard her dec_eased father groaning and the 1 st accused directed her to call her brothers. PWS rushed to call her brothers who were late to· respo.nd. She testified that the first - ' person to reach at the scene was Peace Gabakama (PW9) and ·· that ·sh·e noted that the 1st accused's hands were tied· with ropes from behind: P\NS clai111ed that when Peace Gabakama (PW9) asked the 1 st acc~sed what happen~a, the 1 st accuse9 replied that there was a quarrel but later changed her 5 statement and said they were_ invaded by bandits. · According to the evidence of PW9, when he reached in the roon:, of ~i_s parents he found his father (deceased) a?leep on the bed. i·n • supine position while helplessly groaning and bleeding profusely on his forehead. The· 1st accused was seated on the bed vyhile 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 c1a·imed that there was a quarrel but later changed her statement and said they were invaded by bandits. It is on the evidence. of PWS and P'vV9 that following that awful incidence they were all confused but PW9 man·aged to . . . . rush for transpo~ and ferry the deceased to the hospital while accompanied by the 1st accused, Jackson Kajura and Aida (DWS). Both PW8 and PW9 stated that they don't know who ... •.,:. untied the 1st accused. That, · when they reached at the hospital their father was declared dead. PWlO, Dr. Christantus Ngongi who perf~rmed the postmortem exan:iination o·n 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. If was admitted and rna.rked. Exhibit ·· P3. It shows that the head of t·fre deceasec;I was assaulted on 6 . . . the for~liead wltli a heavy object causing a wound of about 2.5 < • - • inches which penetrated into the skull causing a big fracture. ,,, ' .. .,. . . . In. the cause of polite investlgation it was found that among the items_ stolen from the house of the deceased during the robbery __.incident was one mobile phone, Nokia make, s'liding model. (Exhibit P1) which was found in possession of the 3 rd_·accused person·.. On being questioned· by_ the police the 3 rd .•, ', accus~d claime·d that he Was given .the alleged mobile phone by the 4 th accused. The actual possession of Exhibit Pl was . . established through the evidence of PWl~· PW2, PW3 and PW4. In short PWl, Witness Gaitan Mhangwa, a paramour of the 3 rd accused, testified to the effect that she was given Exhibit Pl by the 3 rd accused it'I order to facilitate theit communications. That she stayed with Exhibit Pl for sometimes but started receiving anonymous calls· asking her about the lawful ownership of Exhibit Pl. That, she decided to report the matter. to the 3 rd accused and the later decided to sell Exhibit Pl to PW2 Kibuda Salama .. Accorcfing to· the testi~ony· of Kibuda Salama, he stayed with the Exhibit· Pl 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 Pl to his brother Ramadhani Salama PW3. · Having purchased it, PW3 gave it to. his ·wife Jakomina, PW4 who continued to use the 7 mobile phone until September, 2010 when ·she was arrested by the police. In her testimony· pvv4··.testified. on how she was given Exhibit Pl by her husb9 nd PW3 and ~ater 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 Salama PW.2. PW7, D/CPL. Florian, the main police investigato·r 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 inter_rogated the · 1st accused; she .. . . ~.~ claimed that the bandits invaded them and managed to steal one brief case of the decea_sed,. one subwoofer radio and 3 mobile phones; one mobile phone belonging t_o her. and· two belonging to the deceased. P~7_ $tated · further tl1at · 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 ~ st accused and his sister Aida Chengula (DWS). · 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 (PWS) that the 2 nd , 3 rd and 4 th accused persons had been· arrested. PW7 V\1ent on 8 stating· that after rec;ording the c9 ution statement of the 1st, 2 nd and 3 rd accused ·persons he discovered that there were bandits . who invaded the house of the ci'~ceased, committed robbery and_ killed the deceased. He stated fhat although he was not the one Who ·arre.sted the 2 nd , 3 rd and 4 th accused persons, the . . trio were connected in .~he case due to the mobile phone communications and possession of the mobile phone Exhibit P1~. As ~f result .. . , a no/le proseque was enter~d in favour of Aida , ' Chen-~}ula (DW5) and char.ge of m··urder preferred -against the - present .four accused persons. . .,., . In o"rder 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 t phone, · nokia make sliding model Exhibit Pl found in possession of the 3 rd accused, the prosecution relied on the evidence of PWS and PW6. PWS, ASP Massawe, a police investigator specialized in _ciber crimes testified to the effect that having obtained the 1st . • accused's mobile pho~e line number namely 0768884116 he , ~ communication with the Vodacom Mobile Company requesting . fo_r a t~o wee~s c~mmunicat.!on record report involving that nu-mber. PWS · 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 ori the same day. The first communication which was made about 10 times on that day was recorded in the name of Godfrey Msamba~ the 2 nd accused. .. The second communication was in the name of Filosi Lusaka, the 4 th accused. The witness stated that he could not remember the telephone line numbers of the 2 nd and 4 th accused persons but he was· able to discover that the 1st accused who was a married woma·n and also a concubine of the 2 nd accused. He also discove'red that the 4 th a·ccused is a well known criminal who have been arrested in several times by the police. PWS said that in his investigation Jle discovered that the 4 th accused was held at Mbarali Police ·station where he was facing another charge of armed robbery. PWS stated further that when the 4 th a·ccused was interrogated he denied to ~ave known the 1st accused but when his ·mobile phone w~~ inspected it was found with a telephone line· number of 1st accused saved therein by the name of "Shangazi". PWS went on testifying that atthough 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 Pl had acquired another m·obile ··phone line number which. was being used by Jakomina Mtweve (PW4). PWS testified that from there PW4. was arrested in possession of Exhibit Pl and revealed on how she obtained it. 10 '. In his evidence PWS identified· Exhibit Pl 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 • . I is equivalent to the IMEI numbers_ ,pro.vided by Vodacom Mobile \, Company with exception.of the last digit. The Vodacom Mobile Company IMEI number ended with "0" digit but Exhibit Pl's IMEI number ended with digit "3". PWS testified to the effect th.at 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 norma,1 and insignificant because the . last digit indicate the version (toleo) only. · When the witness was intending to produce the Vodacom ~obile Company communication Report as exhibit, the defence . . . . ... - . raised ari objection on the ground that the report should be produced ·by its- maker or an expert from the· Vodacom Company because t~ey would prefer to cross-examine him on that report.· The objection ·was sustained. PWS went ahead and testified that he later showed Exhibit . ' Pl to the 1 st accused who identified it as her stolen mobile phone. He also showed Exhibit Pl to the children of the 11 deceased who equally identrfied it. by its coloLJrs and scra_.tch marks to be the stolen-1 st acq..1sed rnobi1~ phone.. ... PW6, Galas Baktazari. was . the Iringa . Regional Data . Sales ' Manager of Vodacom M~bile_. Company; ~e stated that. on . . 13/2/2014 he was aske_d by the·tw.o officers from the office of · R.C.O. to give some explanation rega.rding the report from th~ Vodacom Company Headquarter;:,, Dar-es-Salaam; particularly on the issue of mobile phone serial numbers or IM Er riumb~rs. He stated that the numbers involved was 358244032019913 and that the first 8 _digits iridic9ted· Type Allocation Code (TAC); the following 6 digits indicate the actual serial . . number of the ~ . ' phone and the last single· dig-it. indicate Global System f~r Mobile Communication (GSMC) wrich is. the. version. PW6:: '. stated that the most 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 aero (0) digit. He. stated that where the system fails to identify the last digit the identification is not fatal because the last dig•'it is the vers,ori only. • In a robust cross-exam·inatio·n· '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 · • . ,. g· • • · In ·defe:nce, ·a11· accused persons elected to give a sworn defence and <;:ategorically denied . to . have committed the alleged offence. I_n her .lon_g defence the 1st accused· (DW1) • · : ·• ... .. , ._ • ~ t • stated. .that she was . married to the deceased on 12/12/2009 . . . . . and ·that wh·en the: incident occurred in the night of 3/4/2010 ; · sh~. 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· hou_se including her sister Aida Chengula (DWS) who was summoned by the deceased to collect some •· ,. . money for East~r holidays. She stated that after evening ... ,..· .. ... meals she procee~ed 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 Kaj':,lra, Pe~ce Gabakama (PW9) and Diadore • I • ' 1 Shabani were yet to return from their evening walk. She claimed that two guests namely Aida Chengula (DWS), 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.qo midnight she woke-:-\.tp and Vvent out to stop the boys who were making much noises. She stated that the boys were busy pr~paring chicken, fish and juice for the next day's meal. DWl 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-fri_dge situated at the sitting --~ room. DW1 stated that according to their arrange·ments, the boys were supposed to awake Sarah (PWB)" after preserving ' . . . the items in the fr•dge ·in order- to close and. lo.ck the entrance door. DWl ·stated th.at" having· ~arned 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. DWl stated that after sometimes· she was awaken by a big sound at the door and sud~enly" she saw two people inside the room. She tried to shout for help but she was stopped and threatened to be killed by sayirig "Ukipiga kelele tutakuua". That the two people were dre$sed in loQg black clothes while their faces were covered. DWl 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 ba.ndits · . .. ' assaulted the deceased by _beating him and tied her hands • from the back with ropes and ordered her to sleep down by .·· stomach (kifudifudi). Sh_e ~omplained that· the bandits we·re· · asking for money ·and the deceased's laptop. · After a short while the bandits went away and ·she managed to shout for help. DWl stated that the first child to respond was Pw·g and later Jackson Kajura and Arda Chen~ula (DWS).: She told therr, that they were invaded .. by bandits. '.· DWl stated -that ·pwg rushed for transport in · order to ferry the deceased· ·to the : . ' hospital while Jackson Kajura rushed to the sitting room, 14 • • •• , "' ,I, • • + ,., • \.. • •• picked a knife and unti'~d her hands_ by tutting the ropes. DW1 testified ' .th~t + when ' sh~ looked· at. the deceased who was • •. • g·ro~~irig. on the bed sh~ r~aliz~d that he was severely injured I : ,' on .hfs~ f~r~h~ad. ~nd ·was bleeding p·rofusel.y. She further stated • : ~t : . ' • ~ .. •. ' ,.. ~ - ' , that lat~r she realized_ that the bandits had stolen their 3 ' • .. . . • : • .,, • ' ' 4 mobile phones. Tha~ her stolen ~obile phone was Nokia make, sliding. mode·i and black in ·colour .. When DWl was shown Exhibit Pl she stated that it • resembles ... her stolen mobile .. phone but it is not the one. • She continued to state that the last time sh~ used her mobile phone yvas on 3/4/2010 at about 8.00 p.m. when .she . . commu~i<;:_a~ed with _the 2n~ · accused inquiring about their business matters. She claimed that being a petty business wornan dealing with vitenge materials she used to employ the nd . . . 2 accused's ser\(ices as a truck driver to ferry her vitenge materials from Dar-es-Salaam to Iringa. " 4 • • ' Ir • • It is on the. evidenc~ _of DWl tryat later in that night she •discovered .. ' that even t~eir subwoofer . . radio was stolen by the , .• bandits ."'~ . . .. She . . stated . that later,. when . . the motor vehicle arrived ~ . _they _ru~hed the qecea~ed to the hospital where he was pr9nounGed . . dead_. . DWl complained that . when her statement ' . was being re~orded at t~~ police station by PW7, several police . . . offic_ers were present including PWS who was directing his own • ,;., .t- ... ... ,. , ~ .. • .,. • ' ·words to be recorded against her and eventually she was { 15 forced to sign that statement. DW2, the 2 nd accused testified to the effect that he is a driver of a Fuso truck dealing with transportation ·of ·.different types of luggages. He claimed th.at 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 .fro~ Dar-es-Salaam to Iringa. He denied the · existence of. any intimate relationship between him -~nd the 1st accused.· He 0 claimed that he has ~ever confessed to PWS 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· ch·arged with· the present·_/; . , offence. DW2 stated that. apart from the efforts _of PWS to ·. ' ' ' connect him with the charge there is no eviden·ce to connect him with the offence of murder. DW3; the 3 rd 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 P1). or said the ·same to Kibuda. PW2 ·or·_ to any · other person. DW3 argued that -PW7 claihl.ed' to' have recorded his caution statement where he - confess·ed on · several ·-' ••.,· allegations but the alleged caution .statement or extra :judicial': · · statement was not produced in cou_rt' to prove the allegations. 16 . He stated that he w~s arrested by the police on 16/10/2010 on . all~gation · of house breaking and stealing. but later charged . . , with . murder. .. He. complained that those who were arrested in 4, • .. • ... possession of stolen mobile phone managed to discriminate ~ .. . . . . ~ ' themselves and ,incriminate him and the , police decided to . . - believe them. ow4;· ·the 4th accused testified to the· effect that he is a businessman operating a retail shop at Igumbiro. That on 22/9/2011. he ~~s ·arr~sted 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 ~ t~lephone mobiie n·umber of the 1st accused recorded as t ''Shangazi" but he ~tated that, that name and the number were recorded in his. mobile phone by his young brother Shabani Lus~ka wh_o is a business partner of the 1st accused. He stated - that his y~_ung b~other 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 ttie. story. He castigated the . . ' evidence of. PW7 as false because the alleged caution statement is nowhere to be' ~een and the 3 rd accused (DW3) has categorically ·.~e~ied to have acq_uired a mobile phone from him. 17 DWS, Aida Chengula, who testified in favour .of the 1st accused told this court on how .she was . ·summonsed from · . . . Mg era village QY the deceased · to collect. some money for· .. Easter holidays for his in-laws Jjving in that village. That when ' ' ' st she arrived at the house _she found · both 1 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. DWS stated that in that evening everything .appeared normal and after the evening meal together, the 1st accused t conducted. a ' prayer. Later the 1st accused showed her a guest room which she was supposed to sleep with Witness.. _. D\NS testified that after a while both the dece~sed and 1st accused proce~de~ .to-·-- thei r room to sleep. leaving the rest - at._ the sitting room watching television. She stated that at the sitting. room there were PW8, Eusebia and W.itness and later P\N9, 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 st~ted that in the midnight she wa_s ' awaken by PW8 and when. she opened the .door she saw PW8 and Jackson Kajura. PW8 .told her that they have been invaded. by ba.ndits. They all proceeded to the room of the deceased. She saw the deceased asleep ?n the bed face up and bleeding on his forehead_ while the 1st accused was sleeping face do.wn and her hands tied from back with ropes. · DWS stated that 18 they were a'11 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 die.d. DWS complarned that when they returri~d home she was arrested together with the 1 st aG:cused by the police because th.ey were suspected to have killed the deceased. • • - · During ¥cross examination by the State Attorney the witn-ess admitted tha't she was a co-accused in the case and that she was released on no/le proseque. She admitted that • her caution statement was recorde·d by the police. When she ,f was shown the caution statement by the State Attorney she : identified it and agreed the same to be produced as exhibit. Howeve·r the ·statement was admitted -for identification purposes only (1D1). When the caution statement was read over before the court PWS ·denounce it and claimed that she could_ not -rem.ember the contents of the caution statement because it was recorded more than fou.r years ago. In short, contrary to the _DWS's testimony, the caution statement (ID1) heavily incrimin_ated the 1st accused. In short that is the evidenc;·e of th~ prosecution and defence·: sides. The rribst impq:rtant question before me is /·.',,J . . ) . ,:·-~.()" ~,~_... - . ' -.,I . ,. 19 whether on the available evidence..if' is -the accused persons or , part of them who killed the deceased. . ' ' In my summing up to the Lady and Gentlemen asses~ors, .. . I reminded them on what cons'titutes 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 om_ission is guilty of murder. That, m·alic;:e 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 remi_nded 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 aHow.~d to use ·weakness on ·the defence side to build its case. The :defence. side. have· no duty to establish its case meaning th.at the. accused. persons have no duty to prove their . inri'oce°rlC:e .. They are' only·-req'uired to raise a reasonable doubt on the pr.osecution. 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 pers.on. 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 n~ot require further evidence from both sides. · On the issue of circumstantial evidence I told them that where the evidence is circumstantial, such' evidence mu.st be e~tablish-ed' to ·have been doseiy connected ·with the principal . fa·ct ·s<?ught to be inferred from· those circur:nstances. The fact ·mtist · ir"resistibly poi'nt to the guilty and be incapable of any other reasonable· hyP,othesis · or explanation. In other words the circumstance$ should ·oe 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 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 as·sessors that the position of the law is that .where a person is killed •in a house :and the murderer stole I goods therefrom and after few ·days the accused is found in possession of the stolen goods that raises the presumption t~at the a~cused was the murderer· and unless he give reasonable explanation on how he acq~-ired 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 compl·ainant; -and · · · . 22 .. .. . . . . . .. 1 9 ••--: Four; that the stolen goods constitutes the subject . . .. . of the charge against the accused. 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. .. . . . . . . . . . .. . : ~ . . ... . . . ' ~ ~ . -·: : '11 • '"' • ' ~. • • . . After that I remi~de~ them, albeit in short the evidence of .... "'. . --:·. . 10. prosecution . . witnesses . . and .5 defence witnesses. ' Having do~e so, the first Gentleman assessor returned a verdict of guilty on 1st, 3 rd and · 4 th 9 c<;used persons and declared 2nd accused not guilty. The ~ ~econd ge_ntleman . .' assessor returned a verdict of guilty on the 1st, 2 nd and 3 rd accused persons a,nd not guilty on the 4 th 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 bet 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 krlled. on 3 rd April, 2010. This fact 23 is found in the evidence of PWS, PW7, P\J1/8, PW9, PW10, DW1, DWS and memorandum of matters not in dispute. Therefore it is certain that whoever assaulted the 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 u~known bandits who managed to penetrate. into the house without any breakage and direct to the master bedroo'm of the deceased and 1st accused. In there, the bandits or robbers seriously assaulted the deceased and caused his death. They also tied the ·1 st 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 1 st 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 PWS, PW7, PWB, PW9, DWl and even DWS .. 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 . . o(a robbery incident which is not in· dispute~ In this connection the 24. prosecution had no witness who 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 Pl which appears to connect all accused persons with the alleged . I. . . . . . . offence. . ... ~ ASP M_assawe (PWS) and D/CPL. Florian (PW7) suspected . '. .. ~he accused persons as the persons involved in the killing. The : .. -'" • ~ I • • I . suspicion . . started with the investigation that was conducted .. . ' t through tracing the stolen mobile phone of the 1st accused with telephone line No. 0768884116. Upon the Vodacom Company's Report on Communication record, PWS discovered what he called "unusual communications". That the 1st accused and 2 nd accused were discovered to have known each ot~er and on the material date they communicated 10 times. , T~e 1st acc_used also had comm·unicated with telephone line numbers of the 4th accused_ twice but the prosecution failed to retrieve or disclose the actual telephone line numbers of the 4nd and the 4 th accus·ed persons. They also failed to disclose the nature or contents of the alleged communications or conver$ations. However, it is also in the evidence of PWS that when the ce1•i· ph~ne ·of the -;i th accus~d ·was ·checked it was found with the 25 . .. st telephone line number of ~he 1 accused saved as "Shangazi". ,:' . ' ! . th When the 4 accused was ql:JeStioned about that number he . stated that . it was· his young . brother Sha bani Lusaka, '. the ~ st business partner of the 1 accused who has saved that phone •: . line number in his mobile phone. Then· the Vodacom Compan·y . . managed to retrieve the IMEi number of the 1st 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 -w_as used by PW4. When PW4 was arrested and questioned she disclosed how she obtain~d the cell phone and the same was found to have originated from the 3 rd accused person. PW.5 was able to identify Exhibit Pl as Nokia make, slid -mode with three cqlours i.e. black, .silver and . Gold. ' . When PW5 checked the IMEI number of Exhibit Pl 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 2 nd . and 4 th _accused persons~· Exhibit . , Pl's; IMEi number was 358244032019913. P'f\/5 was then.•toi"d_ by the Vodacom Company· that the. irregu·1arity or abnormality of the differences in those numbers ~a~ minor and normal, . otherwise the IMEi number is correct. PW5 went on testifying . on hearsay evidence about the_ accuracy of _the' nurnber 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 PWS -was intending to produce the Vodacom Coir1pa:ny ·communication record report as exhibit, the defence . sJde raised objection as stated hereinabove. That objection was sustained and the· prosecution promised to call the author of ' . the report or_ expert in telecommunication engineering to tender the report. The prosecution called PW6, who suffered a vigorous . . 'cross-examinati.on 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 record report was not tendered in court as exhibit. At this juncture, Exhibit Pl is highly questionable as to whether it is the exact rnobile phone, property of the 1 st accused -which was stolen during the incident. In her own st testimony the . 1 accused stated that Exhibit Pl resemble her stolen mobile phone but it is .not the one. All prosecution ' . witnesses who attempted to identify Exhibit Pl 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 Pl. . . . Furthermore PWS 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 t:h_e . . IMEI numbers als9 proved that Exhibit Pl 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 Pl is the exact mobile phone recently . stolen in the house . of the .- ~ , deceased during the robbery inci_dent. · See the· decisions in . cases of Mustapha Darajani Vs. The · Republic, Criminal Appeal No. 242 of 2008 Court of Appeal _ot Tanzania at Iringa Registry (unreported); Musa Omari Vs. _The Repu_blic, 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 2.004, 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 . ~ircumst.antial e·viderice 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 accu·sed persons with the· offence of murder. Position of the . . . . law is that where the evidence against the accused is wholly . ~ • .. t . 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 n9t a basis for conviction in a criminal trial. • • • • /4 • • • Inspite the fact ' .. • ,_ that there is a cloud of suspicion in this case against t~e 1st accused, there is no tangible evidence to book her . .t\pparently it is the prosecution itself which conceeded· that there was a robbery incident of which the. 1st ac~used 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. Repub!lic (19.86) TLR 170 and Aidan Mwalulenga _ Vs. The Republic .Criminal . '. Appeal No. 207 of 2006 CAT at Dodoma (unreported). . To say the_ least, there an~· many q~estions than ans_we~s in this case. For instance why PW7 initially suspected the 1 st accused and DWS as the murderers while there were several· inmate in that hou"se. -In a way it seems even the invasion of bandits was not establ"ish~d 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 ·30 ','t~< ""' . . . . sale transaction of Exhibit Pl alleged to have been performed between the 3 rd ac;::tus~d·, PW1, · PW2, PW3 and PW4 raises eyebrows because apart fro'm the words of mouth from the . • • ' .· • · f .. ' ' . . l·- witnesse•s there was no other evidence to p'rove that long and ·.questionable·' sale· and exchange transition of Exhibit Pl. No wonder the 3 rd _accused in his defence argued that those who were found in actual possession of Exhibit Pl managed to dlscdminate· the~selves 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. T~e Republic Criminal Appeal No. 37 of 2003 CA, at Arusha . '. (unreported). In my considered opinion the defence raised by the · accused persons especially that of 1st accused is strong and j probable. . Howev~r, I have much res~rvations on the testimony of DWS. This witness was seriously shaken by the . r pr~secution when she was shown her caution statement (ID1) which seriou?IY contradic~ed her testimo~y in court. The . credibility of this witness, who was once a co-accused was . . "." shaken . to. the hilt. - She . nearly- col.lapsed at the witness box. It ~ ... appears . . . that it was the same caution statement which . . faci_litated . . and lured . the police to enter nolle proseque . ' against her but only to turn ro-und as a defence witness. In the 31 ... i . .i 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 (1997) TLR-CA. In addition, in the case of Kibwana Saleh V. Republic (1968) HCD 391, _the 9 court observed t_hat whenever a witness · is proved to have . 1 . made a statement on oath inconsiste.nt with the statement previously made by him, the credibility of that witness is completely destroyed, unless he can gi,ve 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 ac·cused· · 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 fi'nd all accused persons not guilty and acquit ·them accordingly. The accused persons are to be released· ·forthwith from custody unless otherwise lawfully held ··. on anothe'r matter. · . t · ·. · It is so ordered. M. S. SHANGALI JUDGE. 13/3/2015 Judgement delivered todate 13 th March, 2015 in the presence of Mr. Abel Mwandal_ama, 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 2 nd accused also holding brief for Mr. Mliagama advqcate for. the 3 rd accused and Mr. Jackson Chaula, learned advocate for the 4 th accused~ M. S. SHANGALI JUDGE 13/3/2015 33 ... Order:- Exhibit Pl to be returned to th~ ·, 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