20170526 TZHC Mwanza

I. i •. . ,,,,-.J, ·~-•-.- I •..,,a># IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMUSOMA ORIGINAL JURISDICITON (Mwanza Registry) HIGH COURT CRIMINAL SESSION CASE NO.185 OF 2015 THE REPUBLIC VERSUS 1. MATATA S/O MASAMAKI 2. NOAH S/O MASAMAKI 3. PAPULA S/O MATATA @HAJI 4. MTESIGWA S/O NYANGULI@ PHILMON Hearing: o;lh, 08'1, & ldh of March; 24h, 25h & 2;lh of April 2017 Last Order: 27/04/2017 Judgment: 26/05/2017 For the Republic: Mr. Kainunura, Senior State Attorney For the Accused persons: Mr. Makongo, learned Advocate Court Assessors: (1) Mr. Peter Palemo; (2) M/s Fatuma Juma Buguna and (3) M/s Bahati Ntarima JUDGMENT MAKARAMBA. J.: · On 30th day of June, 2009, two dead bodies, of a female and of a male person respectively, were found lying at a Cemetery at Kibara Village within Bunda District in Mara Region. The body of the female person was later to be identified as that of Karyanja d/ o Mtaki, who had been reported missing since 24th day of June 2009, and that of the male person was later to be identified as that of a traditional doctor, Page 1 of 44 Msonge Ndaro. Police investigation into the death of Msonge Ndaro led to the arrest and charging of the four persons before this Court, namely, Matata s/o Masamaki, the 1st accused person, Noah s/o Masamaki, the 2nd accused person, Papula s/ o Matata @ Haji, the 3rd accused person, and Mtesigwa s/ o Nyanguli @ Philmon, the 4th accused person, jointly with the murder of Msonge Ndaro contrary to section 196 and 197 of the Penal Code, Cap.16 of the Laws on 30th day of lune 2009 at Kibara, Bunda District, Mara Region. In this case, Mr. Kainunura, learned Senior State Attorney appeared for the Republic. In establishing its case against the four accused persons, the prosecution brought five witnesses, namely; Sikitu Msimu also known as Msonge Ndaro, the wife of the deceased who testified as PW1; Assistant Inspector Nyamsigwa, a Police Officer in the Criminal Investigation Department who testified as PW2; Mika Shadrack Maziku, a Medical Doctor working on contract with the District Designated Hospital (DOH) Bunda who testified as PW3; D.4550 Dt/Sgt Lusana Mpangalala, a Police Officer in the Criminal Investigation Section, who testified as PW4; and Frank Msonge, the son of the deceased who testified as PWS. The prosecution also tendered in exhibit the Post Mortem Examination Report of Msonge Ndaro (Exhibit Pl). All the four accused persons were represented by Mr. Makongo, learned Senior Advocate. They entered upon their defence to show their innocence by testifying under oath. The 1st accused person, Matata s/o Masamaki also called one witness, Venance Nsagamambi Kamunyole, (DWS), the ex-Councilor of Kibara Ward. Page 2 of 44 As per the Memorandum of Matters Not in Dispute, the facts that, the person alleged to have been killed, Msonge Ndaro, is in fact dead and that, Msonge Ndaro died an unnatural death are not in dispute. What remained for the prosecution therefore was to lead evidence to establish beyond any reasonable doubt the following matters; that:- 1. The alleged death of Msonge Ndaro was not a natural one but under contrivance of the four accused persons before this Court, and 2. It is the four accused persons before this Court who actually killed the deceased, Msonge Ndaro. On the brief facts of this case on record, all the four accused persons and the deceased were residents of Kibara Village within Bunda District in Mara Region. Before the alleged murder incidence, the deceased, Msonge s/ o Ndaro, was a practicing traditional doctor and also a welder. It is alleged that, on 24th day of June, 2009, the deceased, Karyanja d/o Mtaki, who was also a resident of Kibara Village within Bunda District in Mara Region, felt some pains on her leg, and left her home holding one chicken, heading to the home of the traditional doctor, Msonge Ndaro, for treatment. As it turned out, this was the last time Karyanja d/ o Mtaki to be seen alive since she never returned home. It is alleged further that one, Mashauri s/ o Chenge the husband of Karyanja d/ o Mtaki, made a follow up of the whereabouts of Karyanja d/o Mtaki but could not find her, but later, upon Mashauri s/ o Chenge enquiring from Msonge Ndaro, as to the Page 3 of 44 whereabouts of his wife, Msonge Ndaro replied that he never saw her that day. It is alleged further that, Mashauri Chenge decided to inform his relatives about the incidence of his wife going missing and also reported the matter at the Kibara Police Station, where he was advised to continue searching for his missing wife before the Police could declare her as a missing person. It is further alleged that on 30th day of June, 2009 at around 9:00 hours, the dead body of Karyanja d/ o Mtaki was found lying at the Cemetery at Kibara Village with some of her body parts missing, including her tongue and private parts. An alarm was raised, and some of the Kibara Villagers who responded thereto including the accused persons gathered at the crime scene, and decided to go to the home of the deceased, Msonge Ndaro, since he was believed to be the one who was treating Karyanja Mtaki. It is alleged further that when the crowd of Kibara villagers arrived at the home of Msonge Ndaro, they asked him why he had killed Karyanja Mtaki, which allegation Msonge Ndaro strongly denied. It is alleged also that the crowd of Kibara Villagers got annoyed and infuriated with the answer by Msonge Ndaro, and so they started attacking him using stones, machetes, fists and sticks. It is alleged further that the crowd tied Msonge Ndaro up with a sisal rope and started dragging him towards the Cemetery area at Kibara Village. It is alleged further that at the Cemetery area, the crowd of villagers continued attacking Msonge Ndaro and later they set his body on fire. The incident was reported at the Kibara Police and later at the Bunda Police Station, making the Police embarking on an investigation into the death of Msonge Ndaro. The police arrested the four accused Page 4 of 44 persons before this Court at different dates and upon interrogating them they all denied being responsible for the killing of the Msonge Ndaro. The four accused persons were arraigned before this Court on a joint murder charge which they all denied and hence the trial leading to this Judgment. The case before this Court concerns a murder charge against four accused persons jointly. Such charge attracts only one sentence under the law upon conviction - death penalty. I need not therefore emphasis here that this being a criminal trial, the burden of establishing the guilty of the four accused persons lies on the prosecution in respect of every element of the charge of murder. The four accused persons do not bear the onus of proof at all. It is therefore not for the four accused persons to prove their innocence but for the prosecution to prove their guilt and this should be beyond any reasonable doubt. I should point out here that much as the prosecution bears the burden of proof however, it does not have to prove every single fact in the case beyond reasonable doubt. The onus which rests upon the prosecution is that of proving the main elements of the charge beyond any reasonable doubt. It is also part of our system of administration of criminal justice that, the four accused persons who are being tried for murder that they are presumed to be innocent, unless and until they are proved guilty beyond any reasonable doubt. The expression "proved beyond reasonable doubt' which is an ancient one, has been deeply ingrained in our system of criminal justice and also find expression in our Constitution. In the present case, as I said earlier in this Judgment the prosecution brought a total of five (5) witnesses to establish its case against the four accused persons and tendered in exhibit, the post Page S_of 44 mortem examination report of the deceased, Msonge Ndaro. I shall now albeit very briefly hereunder go through the prosecution evidence. The first witness to take the stand for the prosecution was Sikitu Msimu, the wife of Msonge Ndaro. Testifying as PWl, she stated that, on the 30th day of lune, 2009 at about 10.00 am while at her home with her family and her husband having fetched water from a well located near their home, she saw many people coming to their home. She stated further that the people who came to their home were looking for her husband, Msonge Ndaro, who they were accusing of being responsible for the killing of a woman called Karyanja Mtaki. PWl stated further that those people started attacking her husband, Msonge Ndaro. PWl stated further that the first person to unleash attack on her husband was Papula s/ o Matata @ Haji Matata (the 3rd Accused herein) who PWl said he used a piece of wood to hit her husband with it on his right leg breaking it. PWl testified further that the other person who also attacked her husband was the Chairman of Kibara Village within Bunda District one Mtesigwa s/ o Nyanguli@ Philimon (the 4th Accused herein). PWl stated that it is Mtesigwa s/o Nyanguli who uttered words intended at inciting the Villagers to attack her husband, Msonge Ndaro. According to PWl, the Village Chairman, Mtesigwa Nyanguli did not touch her husband, but incited the people to attack him using words. PWl testified further that, the crowd of people took Msonge Ndaro to another place while still alive. PWl stated further that the other person who attacked her husband was Matata s/o Masamaki (the 1st Accused) using his fists (ngum1) and kicks (mateke). Page 6 of 44 ..,_ According to PW1 the three accused persons namely, Papula s/o Matata @ Haji Matata (the 3 rd Accused); Mtesigwa s/ o Nyanguli@ Philimon (the 4th Accused); and Matata s/ o Masamaki (the 1st Accused) are the only ones she managed to identify among the crowd as having attacked her husband. PW1 also made a dock identification of the three accused persons. PW1 stated further that, the three accused persons were familiar to her even before the attack incidence. PW1 also stated that, she raised alarm for assistance but did not get any and therefore she decided to rush to the Kibara Police Station and that, at the time she was rushing to the Kibara Police Station she left her husband Msonge Ndaro, whose right leg had already been broken by the attackers. PWl also stated that, she found many people at the Kibara Police Station_ including the Chairman of Kibara Village, Mtesigwa s/ o Nyanguli @Philmon (the 4th Accused herein). When cross-examined by Mr. Makongo, learned Advocate, PW1 stated that, she did not know what took place after she had rushed to the Kibara Police Station·. PW1 also stated under cross-examination that, when she got out of the Kibara Police Station she found out that her husband Msonge Ndaro had already died but she was not present when her husband was being killed and therefore she does not know who killed him. The second witness to take the stand for the prosecution was Assistant Inspector Simon Nyamsigwa, the Police Officer Commanding Station (OCS) of the Kibara Police Station in Bunda District. Testifying for the prosecution, PW2 stated that, on 24th day of June, 2009 he received information about one missing woman by the Page 7 of 44 name of Karyanja from her husband called Mashauri s/ o Chenge. PW2 stated further that on 30th day of June, 2009, while at the Kibara Police Station he received information that, the missing woman had been found dead at Kibara Village, Mwibara Hamlet. PW2 stated further that while getting Police Officers ready to go to investigate the event, a lady by the name of Sikitu Msonge came to the Police Station crying that her husband, Msonge Ndaro, had been killed and she mentioned Matata s/ o Masamaki, Noah s/ o Masamaki and Papula s/o Matata @ Haji as the ones involved in attacking her husband Msonge Ndaro. PW2 stated further that he (PW2) commanded one of the Police Officers, Dt. Cpl Edwin to lead a group of Police Officers to go to the crime scene. PW2 stated further that after a little while, Dt. Cpl Edwin came back to the Kibara Police Station and told him (PW2) that, it was true that, Msonge Ndaro had already been killed. PW2 stated further that he rushed to the crime scene and confirmed the death of Msonge Ndaro and then sent information to the OCD for further action. It was the further statement of PW2 that, whilst at the Kibara Police Station, the Village Chairman one Mtesigwa s/ o Nyanguli @ Philmon rang a bell, and people assembled and that he (Mtesigwa Nyanguli) told the assembled people that, a dead body had been found at the Cemetery area with some of its private parts missing and that it was suspected perhaps it was Msonge Ndaro who was responsible for taking the private parts from the dead body of the deceased (Karyanja) in connection with witch craft beliefs. PW2 stated further that the Village Chairman also incited the . people assembled to kill Sikitu because she was the wife of Msonge Ndaro. PW2 stated further Page 8 of44 that, he (PW2) was not present during the conduct of the Post-Mortem Examination of the two dead bodies of Karyanja Mtaki or Msonge Ndaro, but he saw the leg of Msonge Ndaro broken and that he (PW2) was told by Dt. Cpl Edwin that the two dead bodies were found lying at a farm (shamba). The third witness to take the stand for the prosecution was one Mika Shadrack Maziku who introduced himself as a registered member of the Medical Association of Tanganyika (MAT), with registration number is 616, and with a Certificate issued in 2001, but whose medical practicing had expired and has not been renewed. Testifying as PW3, Mika Shadrack Maziku stated that he had been an employee of Kibara Hospital but retired since 2008, although he continued working at the Kibara Hospital on a contract due to shortage of medical doctors. PW3 stated further that, on 30th day of June, 2009 he was requested by two Police Officers, Mpangalala and Edward, to conduct a Post Mortem examination on the body of a deceased person at the place where the said dead body was found lying, at a field, naked in the outskirts of Kibara Town. PW3 stated further . that upon arriving at the place, Police Officers called the relatives of the deceased who identified the dead body as being that of Msonge Ndaro, a male person resident of Kibara Village. PW3 stated further that having put on his groves, mask and boots and getting ready to examine the dead body, he (PW3) discovered upon examining it, some big wounds on its head, and the skull had been battered and the right leg had been broken at the tibia and fibula below the knee. PW3 stated further that, the whole dead body had been charred, including the hair. PW3 stated further that he reached a conclusion that, as a result of the Page 9 of 44 deep head wounds, the cause of death was due to excessive bleeding and fracture of the skull, severe head injury, brain damage, hemorrhage causing hypervolemia leading to cardiac arrest due to lack of sufficient blood circulation. PW3 stated further that, he filled in a Postmortem Examination Report at the crime scene and stamped it at the office because he did not carry the office stamp with him. PW3 stated further that, after carrying out the Post Mortem Examination he fainted and filled in the Post Mortem Examination Report at the scene of the crime after regaining consciousness. PW3 stated further that, he does not know what caused the body of the deceased to be charred, and cannot recollect if the dead body had been set on fire at the site or it was brought there from another place. While under cross-examination by Mr. Makongo, learned Advocate for the accused persons, PW3 stated that, he (PW3) did not mark in the Post Mortem Examination Report information about the broken leg of the deceased and that he also did not fill in the Report the word "damage' after the word "brain." PW3 also stated that the brain was exposed and visible but did not enter such information in the Report. PW3 stated further that, he was supposed to fill in the Report if the hemorrhage was external or internal but did not do so. When asked if he (PW3) witnessed any blood so as to conclude that death was due to severe hemorrhage, PW3 remained silent. PW3 also stated further that, in so far as he may recall, the dead body was like it had been placed where it was found lying after it had been burnt elsewhere and that the Police Officers called the Chairman, Mtesigwa s/ o Nyanguli to identify the body of the deceased. Page 10 of 44 The fourth person to take the witness stand for the prosecution was D.4550 Dt/sgt. Lusana Mpangalala. Testifying as PW4, he stated that, on the 30th day of June 2009 when at the Kibara Police Station one lady called Sikitu Ndaro brought information that her husband had been taken by some people who she knew to a Cemetery area ("makaburinl') and that she feared that he might have been killed. PW4 stated further that he (PW4) accompanied by Doctor Maziku, Corporal Edwin, Head of the Kibara Police Station OCS, S/SGT SIMON and other Police Officers from Bunda District under the command of QC-CID, went to the crime scene at the Cemetery area, where he (PW4) found two dead bodies, one of which had started to decompose and the other one was charred with a wound on its head. PW4 stated further that, he looked for the people who could identify the dead bodies, but the relatives of the deceased were not present. That he (PW4) therefore looked for the Village Chairman one Mtesigwa and asked him if could identify the bodies, which he (Mtesigwa) did by identifying the body which had started to decompose as being that of Karyanja, a woman, and the other one with a wound on its head and burnt as being that of Msonge Ndaro. PW4 stated further the QC-CID instructed him (PW4) to deal with the body of Msonge Ndaro. PW4 stated further that, the body of Msonge Ndaro was burnt on its sideline and that there were some burnt grasses and pieces of wood on the site. PW4 stated further that it appears that, the body was burnt using grasses and pieces of wood, and given that it was during the dry season, the ground was clearer. PW4 stated further that, he gave the Post Mortem Examination Form to the Medical Doctor for purposes of conducting a Post Mortem Page 11 of 44 . ,- examination on the dead body and that the Medical Doctor filled in the Post Mortem Examination Form. PW4 stated further that, the Medical Doctor felt dizzy and that he (PW4) had to help him. PW4 stated further that, the police allowed the dead bodies to be removed from the site they were found lying, which obligation was left with the Village Government Chairman, Mtesigwa assisted by other Villagers. PW4 stated further that later he prepared a Sketch Map of the crime scene and returned back to the Police Station to continue with other normal duties. PW4 stated further that at the Police station they followed-up on the information which Sikitu Ndaro had given them that she knew the people who were responsible for the death of her husband, which information they used and enabled them to identify and arrest the people she had mentioned as being responsible for the death of her husband, Msonge Ndaro namely; Matata Masamaki, Noah Masamaki, Papula Matata and Mtesigwa Nyanguli. PW4 stated further that on 01 st day of August, 2009, the police managed to arrest Matata Masamaki, Noah Masamaki and Papula Matata, at their homes and on 10th day of February, 2016 they managed to arrest Mtesigwa Nyanguli at Bunda town. The last witness to take the stand for the prosecution was Frank Msonge the son of Msonge Ndaro. Testifying as PWS, Frank Msonge stated that, his father, Msonge Ndaro (the deceased) died on 30th day of lune, 2009. PWS stated further that on that day, 30th day of lune, 2009 at 11:00 am while at home with his father, mother and his siblings, a group of people came led by the Village Chairman one Mtesigwa Nyanguli, including Haji Matata, Noah Masamaki and Matata Masamaki who he recognized because he knew them before Page 12 of 44 as residents of the Village where he was also residing. PWS stated further· that having arrived at their home; he (PWS) heard Mtesigwa telling the crowd that, ''Huyu ndiye Msonge mwenyewe. Itakuwa yeye ndiye kaua. Mpigeni" (" This is Msonge. He is the one who killed. Beat him up''). PWS stated further that the first person to' attack his father was Haji, who used a big piece of stick (wood) and hit his father with it on his head, upon which his father fell down to the ground. PWS stated further that the crowd took a sisal rope and tied his father's (Msonge Ndaro) legs and arms with it and started dragging him towards the direction of the Cemetery (Makaburini) and that he (PWS) was closely following behind as his father was being dragged. PWS stated further that after a little distance from their home, Haji also picked a stone and hit his father with it on his left leg, and broke it and the bones were protruding. PWS stated further that when the crowd arrived at the Cemetery area, Noah Masamaki threw a stone which hit his father on his head. PWS stated further that it is at that stage that he (PWS) was told by one lady to run back home, which he did and upon arriving home he could not find his mother there but only his younger sibling. PWS stated further that one of their neighbours, one Mama Adipe told him that, his mother had rushed to the Kibara Police Station whereupon he (PWS) also ran to the Police Station where he found his step mother there and that they stayed there until 7:00 pm when they left for home and at home he was told that the crowd had set his father on fire. On the evidence on record, PW1, Sikitu Msonge, the wife of Msonge Ndaro, told this Court that, the attack incidence which led to the death of her husband happened on 30th day of June, 2009 at 10:00 Page 13 of 44 am. However, on his part PWS, Frank Msonge, the son of Msonge Ndaro, told this Court that the attack incidence which led to the death of his father happened on 30th day of lune, 2009 at 11:00 am. Much as PW1 and PWS seemingly have given contradictory evidence as to the time they claim that the attack incidence on Msonge Ndaro which led to his death took place, be it as it may, since the incidence took place in broad day light, PW1 and PWS could be said to have been the best witnesses to testify about all that they said took place at their home where the persons they claim they saw were attacking Msonge Ndaro. According to both PW1 and PWS, they said they were so close to the attackers about five (5) paces apart. According to PWS, the attack lasted for about an hour and that both PW1 and PWS told this Court that, they were familiar with all the four accused persons even before the day of the attack incidence. On the testimony of PW1, she managed to identify only three persons, namely; Matata Masamaki (the 1st Accused), Haji Matata (the 3rd Accused) and Mtesigwa Nyanguli (the 4th Accused), as having attacked and beat up Msonge Ndaro, the deceased. However, PW1 while at the Kibara Police Station she mentioned only two persons, Haji Matata (the 3rd Accused) and Mtesigwa Nyanguli (the 4th Accused) as the persons she claims that they were involved in the killing of her husband, Msonge Ndaro. It would seem very clearly from the evidence by Sikitu Msonge (PW1), that Noah Matata (the 2nd Accused) was not involved in the attack incidence. PWS on his part managed to identify four persons, namely; Mtesigwa Nyanguli (the 4th Accused), Haji Matata (the 3rd Accused), Noah Masamaki (the 2nd Accused) and Matata Masamaki (the 1st Page 14 of 44 Accused) as being the persons who attacked Msonge Ndaro and explained the role of each one in the attack and the place where they unleashed the attack. Understandably, PW1 did not mention Noah Masamaki (the 2nd Accused) as being one of the attackers, although PWS mentioned Noah Masamaki as one of the attackers of Msonge Ndaro near the Cemetery area. This Court has been left wondering how, given as PWS claims that, the attackers of Msonge Ndaro he claims he identified were among the people in the crowd who went to the home of Msonge Ndaro, and that both PW1 and PWS were present when those people came to their home looking for Msonge Ndaro, how could they differ in mentioning the number of people they claim they identified attacking Msonge Ndaro. On this evidence it is highly doubtful if PW1 and PWS who claim that they were closely following the attack event made proper identification of all the accused persons before this Court as being the ones responsible for the alleged attack of Msonge Ndaro on the 30th day of June 2009 which attack ultimately led to his death. In their respective testimonies both PW1 and PWS told this Court that, Msonge Ndaro was attacked first at his home, then while being dragged by the crowd towards the Cemetery area and also at the Cemetery area. All the prosecution witnesses in their respective testimonies before this Court stated that, Msonge Ndaro was killed at the Kibara Cemetery. On this piece of evidence, the crime scene could therefore be said to be at the Kibara Cemetery. PW1, Sikitu Msonge, in her testimony dwelt largely at explaining what took place at the home of the deceased. Frank Msonge, PWS on his part dwelt largely at explaining what took place at the home of the deceased and on the way to the Kibara Cemetery, but fell short of Page 15 of 44 explaining what really happened at the Kibara Cemetery. PWS stated that at the Kibara Cemetery, he (PWS) only witnessed Noah Masamaki throwing a stone which hit his father on his head. This being the case therefore, PWS cannot be heard to claim to have witnessed other events befalling his father Msonge Ndaro at the Cemetery area for he (PWS) claims that he had to rush back home due to fear that he might also be killed by the angry mob of people who were dragging his father towards the Cemetery area. Rather unfortunately, the prosecution did not tender in evidence the Sketch Map of the crime scene thus denying this Court the opportunity to understand the positioning of the dead bodies claimed to have been found lying at the Cemetery area and the surroundings of the crime scene. Consequently, this Court has not been seized of evidence as to the respective positioning of the two dead bodies alleged to have been found lying at the Kibara Cemetery and whether indeed they were really found at the purported crime scene as alleged by the prosecution. Furthermore, this Court has also been denied the opportunity to know the series of events as explained by PW1 and PW2 so as to appreciate of what exactly took place at the crime scene or whether there were a series of events which occurred at other places, which cumulatively could have led to the death of Msonge Ndaro. In her testimony PW1 told this Court that, she witnessed the accused persons attacking and beating up her husband Msonge Ndaro, whilst at his home and also on the way towards an unknown place before she rushed to the Kibara Police Station to report about the incident. Given this piece of evidence, clearly PW1 never witnessed what happened or was taking place at the Kibara Cemetery area, our Page 16 of 44 assumed crime scene, given lack of concrete evidence by the prosecution as to where exactly could be said that it was the crime scene. While being cross-examined by Mr. Makongo learned Counsel for the accused persons, PW1 told this Court that, she was not present when her husband was being killed and that she does not know who killed her husband because she was not present at the Cemetery area, which is the presumed crime scene. In the circumstances, this Court finds that, PW1 was not present at the presumed crime scene and therefore she could not be at a position to identify the persons she claims that they killed her husband at the presumed crime scene. PWS on his part also told this Court that, he closely followed on the event as they were unfolding from their home up to the Cemetery area, where he claims that his father was killed. PWS stated further that he witnessed a stone being thrown by Noah Masamaki (the 2nd Accused), which hit his father on his head but could not hear his father "complaining or talking." On this particular piece of evidence, it would appear that, only Noah Masamaki (the 2nd Accused) whom PWS claims to have identified as the one who hit Msonge Ndaro with a stone on his head, which stone PWS claims that he (Noah Masamaki) threw at the Kibara Cemetery - our presumed crime scene. Furthermore, it is at that point PWS claims that he saw Noah Masamaki throwing the stone which hit his father on his head that, the evidence of PWS stops. PWS did not tell this Court whether it is that stone which he claims Noah Masamaki threw and which hit his father on his head which caused his (Msonge Ndaro) death. It is also unclear to this Court whether the testimony by PWS that, at that point he could not hear his father "complaining or talking," meant that, his father Page 17 of 44 had passed away after being hit on his head by the stone PWS claims that Noah Masamaki threw or his father was still alive even after being hit on his head with that stone. In the premise, it has not been established conclusively before this Court as at what point in time could it be said that, Msonge Ndaro died and what was the immediate cause of his death. Unfortunately there is no single prosecution witness who witnessed while Msonge Ndaro was said to have died. Furthermore, it has also not been established before this Court, which specific act and by who among the four accused persons before this Court could be said to have been the immediate cause of the death of Msonge Ndaro. On the evidence on record it could not be said that it was the stone that PWS claims that Noah Masamaki threw at his father hitting him on his head or the. entire series of events of attacks from the home of Msonge Ndaro all the way to the Kibara Cemetery, which cumulatively could be said to have led to the death of Msonge Ndaro. The evidence by both PWl and PWS dwelt largely on the alleged beating which they claim was unleashed on Msonge Ndaro by the accused persons on the fateful day of 30th day of June, 2009 although they differed as to the time the alleged attack took place. Neither PWl nor PWS in their respective testimonial evidence said that they witnessed Msonge Ndaro being killed. This particular fact was highly critical in this case since PW2, PW3, and PW4 in their respective testimonial evidence stated that, they found the body of the deceased, Msonge Ndaro at the Kibara Cemetery area and that the body was found half burnt, but they were unsure whether it had been burnt there or elsewhere or it was just brought and placed at the Cemetery area Page 18 of 44 ...- . • having been killed and burnt somewhere else. Furthermore it has not been established by the evidence on record as to who was responsible for setting Msonge Ndaro on fire. Also none of the prosecution witnesses claim to have witnessed Msonge Ndaro being set on fire. It is also still unclear from the evidence on record whether Msonge Ndaro was set on fire while still alive or after having being killed and who did it and where. The lingering question is whether it could be said that the fire was the immediate cause of the death of Msonge Ndaro or not. This yawning evidential gap has cast serious doubts on the prosecution case, such that it has not been established whether the four accused persons in this Court were properly identified as being the perpetrators of the attack and killing of Msonge Ndaro for which they stand jointly charged with. It is for the above reasons that, this Court finds that, the prosecution witnesses failed to identify the persons who killed Msonge Ndaro. In establishing their case against the four accused persons before this Court, the prosecution also fielded a Medical Practitioner one Mika Shadrack Maziku who testified as PW3. Apparently, it would seem that PW3 carried out a postmortem examination but only on the dead body of Msonge Ndaro and not on the dead body of Karyanja Mtaki, which was claimed to also have been found lying at the Cemetery area side by side with the dead body of Msonge Ndaro. The Medical Doctor Mika Shadrack Maziku (PW3), who is alleged to have conducted the post mortem examination on the body of Msonge Ndaro at the Kibara Cemetery area, told this Court that he was a retired Medical Doctor working on contract at the Kibara Hospital. PW3 tendered in exhibit Page 19 of 44 before this Court the Post Mortem Examination Report (Exhibit Pl) of the body of Msonge Ndaro. It would appear that at the material time of conducting the post mortem examination on the body of Msonge ·Ndaro,. PW3 had already retired from active public service and that, even his practicing license had expired and had not been renewed and that, he had been working on contract at the Kibara Hospital due to lack of Medical Doctors. PW3 stated in his evidence that, he had been summoned by the Police to go to the Kibara Cemetery area where the dead body of Msonge Ndaro had been found lying for purposes of conducting a post mortem examination on it. On the evidence by Mika Shadrack Maziku (PW3) himself as to his medical practicing status at the time of carrying out the post mortem examination on the body of Msonge Ndaro, clearly his competency as a Medical Practitioner to conduct the said post mortem was highly circumspect. At the material time PW3 was called by the Police to ca~ry out the said post mortem examination, PW3 had already retired from active public service and his practicing license had expired and had not been renewed. In any event there is no evidence produced at the trial to prove his status as a retired public service employee working on contract or whether indeed if that contract was available and it still valid. Aside from the questionable competency of PW3 as an expert Medical Practitioner, the ability of PW3 to conduct the said post mortem also came to question before this Court. It was through his very own testimony, PW3 told this Court that, after carrying out the post mortem examination on the body of Msonge Ndaro, he fainted and became unconscious but managed to fill the Report at the crime scene and after regaining consciousness and that he later stamped the Page 20 of 44 .. Report at the office because he did not carry the office stamp with him to the crime scene. The extent to which PW3 was able to continue with the act of filling out the post mortem examination having regained consciousness after fainting during the conduct of the post mortem examination raises some eyebrows. A thorough examination of the Post mortem examination report (Exhibit Pl) on record, and the manner in which it was alleged filled by PW3, and some of the critical information missing in its contents, as well as failure by PW3 to answer to some of the critical questions relating to the manner in which he carried out the post mortem examination, create some serious doubts as to whether PW3 really ever examined the body of Msonge Ndaro. Just to cite as an example, upon PW3 being asked if he witnessed any blood so as to conclude that the death of Msonge Ndaro was due to severe hemorrhage, PW3 went completely mum since as he never gave any answer to that question. Furthermore, upon PW3 being asked if the body of Msonge Ndaro was set on fire where it was found lying or it was brought there after having been set on fire elsewhere, PW3 retorted that, he cannot recollect about this fact. In his defence testimony DW2 told this Court that, the Medical Officer (PW3) having set himself ready to conduct the post mortem examination fainted and lost consciousness and had to be rushed to hospital for treatment. On the evidence on record of this case, it is worth noting that upon a closer look at the Post Mortem Examination Report (Exhibit Pl), the Medical Practitioner (PW3) failed to enter in that Report some of the important observations he made regarding the examination of the body of the deceased, Msonge Ndaro. For instance, PW3 failed completely to indicate in the Post Mortem Examination Report that, he Page 21 of 44 ; .... saw that the right leg of the deceased had been broken. Furthermore, \. PW3 even failed to indicate in the Report that, he saw that the brain of the deceased, which he claims that had protruded, was damaged. It was the testimony of PW3 that he was supposed to indicate if the hemorrhage was internal or external, but he failed to state so in the Report. It is the testimony of PW3 before this Court that all these matters were to feature in the Report but as PW3 readily conceded during the trial, he did not record them in the Post Mortem Examination Report, which he claims that he filled at the .crime scene. However, as per the testimony of DW2 in defence, having regained consciousness, PW3 was rushed on a motorcycle to hospital for treatment, which fact clearly indicates that the post mortem examination exercise was not completed at the crime scene as PW3 seems to claim. On this piece. of evidence, it is highly probable that PW3 fainted before conducting the post mortem examination on the body of Msonge Ndaro otherwise he could not have failed to capture in the Report some of the most important observations he made before this Court during the trial with regard to what he claims he saw when examining the body of Mosnge Ndaro at the crime scene. The fact that PW3 failed to answer some of the important questions put to him during the trial as to the repositioning of the dead body of Msonge Ndaro at the Kibara Cemetery area clearly raises doubts as to whether indeed PW3 competed the exercise of conducting the post mortem examination on the body of the deceased, Msonge Ndaro at the Cemetery area as he seems to claim. I should point out here that as a matter of principle, if there are good reasons, courts are not bound by the evidence of a medical expert, Page 22 of 44 as the Court of Appeal of Tanzania succinctly stated in the case of Hilda Abel v. Republic [1993] TLR 246 {CA}that; "Courts are not bound to accept medical expert's evidence if there are good reasons for not doing so. " In the instant case, there exist good reasons for this Court not to be bound by the medical expert evidence of PW3 and this for the reasons I have endeavoured to explain herein above. In this case, there is an assumed close link between the death of Karyanja Mtaki and that of Msonge Ndaro. The four accused persons in this case are jointly being charged with the murder of Msonge Ndaro, a traditional doctor. It is alleged that Karyanja Mtaki was taken by her husband, Mashauri Chenge, to the traditional doctor Msonge Ndaro, for treatment. The record in this case shows that, Matata s/ o Masamaki, Noah s/ o Masamaki, Papula s/ o Matata @ Haji, the 1st, 2nd and 3rd accused persons respectively are close relatives. Matata s/ o Masamaki and Noah s/ o Masamaki are brothers. Papula s/o Matata@ Haji is the son of Matata s/o Masamaki. Karyanja Mtaki was a mother to Matata s/o Masamaki and Noah s/ o Masamaki, and a grandmother to Papula s/ o Matata @ Haji. It seems that there was some suspicion that perhaps the four accused persons before this Court who are being charged with the murder of Msonge Ndaro, to whom it is alleged that their mother and/or grandmother had been taken for treatment, and therefore being blood relatives to Karyanja Mtaki, they were infuriated with the death of their mother and/or grandmother, who is alleged to have gone missing after going for treatment to the traditional doctor, Msonge Page 23 of 44 Ndaro, and whose dead body was later to be found lying in the Cemetery area at Kibara with some of her private parts missing, most probably it is the four accused persons before this Court who had a hand in the death of Msonge Ndaro by way of revenge for the death of Karyanja Mtaki. However, what still remains an unresolved legal riddle in this case is when, in terms of time, how and who killed Msonge Ndaro and where was he killed. Furthermore, the person who could have proved the most vital piece of information as to whether indeed Karyanja Mtaki was taken for treatment to the traditional doctor, Msonge Ndaro, her husband, one Mashauri Chenge, unfortunately was not called by the prosecution to testify. Consequently, the vital link between Karyanja Mtaki (the patient) going to the traditional doctor, _ Msonge Ndaro, and Karyanja Mtaki (the patient) disappearance on 24/06/2009, and the mysterious deaths of both the traditional healer, Msonge Ndaro, and his patient, Karyanja Mtaki, and their dead bodies being found lying at the Kibara Cemetery area on 30/06/2009 is completely missing in this case. In so far as this Court is concerned, the fact of Karyanja Mtaki going to the traditional doctor, Msonge Ndaro, remains a matter of speculation since there is no proof of this fact from any of the prosecution witnesses apart from hearsay. Furthermore, the fact as to the possible avenge by the four accused persons of the death of their relative Karyanja Mtaki by taking the life of Msonge Ndaro also remains a matter of speculation since there is no cogent evidence on record to dispel it. On the legal consequences of mere speculation of prosecution evidence the decision of the Court of Appeal in the case of Aidan Mwalulenga v. Republic, Criminal Appeal No. 207 of 2006, (CAT) Page 24 of 44 at Dodoma at page 12 (unreported) becomes handy where it was held that; ''Indeed, the prosecution evidence was mere suspicion. The prosecution has a duty to prove the charge against the · accused beyond all reasonable doubt See the case of Christian s/o Kaale and Rwekiza s/o Bernard v. R {19921 TLR 302 where the Court held that an accused ought to be convicted on the strength of the prosecution case. A suspicion cannot sustain a conviction. It entitles an accused person to an acquittal, on a benefit of doubt Since the identification was not sufficient to sustain the appellant's conviction we allow the appeal, quash the conviction and set aside the sentence of death imposed on the appellant " On the evidence on record in this case, clearly it is a matter of speculation without any kind of proof that the four accused persons before this Court were responsible for the death of Msonge Ndaro by way of revenge for the death of Karyanja Mtaki. There is the evidence by PW1 and PWS that, the then Kibara Village Chairman, Mtesigwa s/ o Nyanguli @ Philimon, the 4th accused person herein, incited the villagers by his words to attack and kill Msonge Ndaro and also to attack his wife, Sikitu Msonge. It is further being claimed that, the Chairman, Mtesigwa s/o Nyanguli @ Philimon, the 4th accused herein, incited the villagers by his speech he allegedly made before the crowd of villagers who had assembled at the home of Msonge Ndaro to attack Msonge Ndaro. The claims about the role of the Chairman, Mtesigwa Nyanguli in inciting the people to Page 25 of 44 attack and kill Msonge Ndaro came from the testimonies of both SIKITU MSONGE (PWl), the wife of the deceased, and FRANK MSONGE (PWS), the son of the deceased. The second alleged inciting speech by the Chairman, Mtesigwa Nyanguli, the 4th accused herein, was made to the villagers who had assembled at the Kibara Police Station in response to the bell he is said to have rang from the CCM Office, which was very close to the Kibara Police Station. This claim is as per the testimony of OCS of Kibara, Simon Nyamsigwa (PW2). The testimonies of PWl, PWS and PW2 with regard to the claims of inciting speech by Mtesigwa Nyanguli, the 4th accused herein, with due respect, have plunged this Court in a state of confusion. While testifying in chief for the prosecution, PW2, Simon Nyamsigwa, OCS of Kibara Police Station told this Court that, " ... he saw the Chairman Mtesigwa Nyanguli while arrived at the CCM Office and rang the Village Bell. People assembled in numbers and started to address them explaining the event of the death of the woman and how the body was found The chairman Mtesigwa was telling the people that they suspected Msonge Ndaro was responsible for taking the parts of the body of the deceased or witchcraft belief. The people dispersed and headed to the crime scene of both Msonge Ndaro and Karyanja deaths. " Upon being cross-examined, PW2 stated that, the Chairman, Mtesigwa Nyanguli, also told the people who had assembled at the Kibara Police Station also to kill SIKITU MSONGE because she is the wife of Msonge Ndaro. Looking at this piece of evidence by PW2, it is vivid that the alleged utterances the Chairman, Mtesigwa Nyanguli, Page 26 of 44 made not intended to incite the villagers to go after the life of Msonge Ndaro or his wife Sikit"'"Msonge. As per the evidence on record from the testimony of PW2, undoubtedly, the Chairman, Mtesigwa Nyanguli rang the bell and addressed the villagers to inform them about the founding of the dead body of Msonge Ndaro lying at the Kibara Cemetery area, which means that at the time of making the alleged statement, Msonge Ndaro had already died and therefore the Chairman, Mtesigwa Nyanguli could not be said to have incited the villagers to go and kill Msonge Ndaro who was already dead anyway. As such the claim that the Chairman, Mtesigwa Nyanguli rang a bell and incited the villagers to go and kill Msonge Ndaro, who was already dead at the time of the alleged speech by the Chairman Mtesigwa Nyanguli becomes simply a pack of concocted lies not worthy of the attention of this Court. The testimonies of other prosecution witnesses including PW3, Mika Shadrack Maziku, and defence witnesses, DWl, DW2, and DW4 who were present at the Kibara Police Station at the material time never testified to the fact of hearing such incitement or speech being made by any of the village leaders present let alone the Chairman, Mtesigwa Nyanguli. The evidence on record is that, the ringing of the bell at the CCM Office which was very close to the Kibara Police Station was on the instruction of the OCS of Kibara Police Station, and that it was for the purpose of informing the assembled villagers about the events which had taken place at their village and about the two dead bodies that had been found lying in the Cemetery area at Kibara. As per his testimony, FRANK MSONGE (PWS) who at the· material time was fifteen (15) years old (in 2009 PWS was 15 years since when testifying he told this Court that he was 23 years old), narrated at great Page 27 of 44 ... length on the sequence of events of attack which he claims that each of the attackers unleashed on his father Msonge Ndaro which caused his death. In his testimony, Frank Msonge, PWS, stated that, it was Papula s/o Matata @ Haji (the 3rd Accused herein) who picked a stone and hit his father, Msonge Ndaro, with on his left leg breaking it. Curiously, whereas Frank Msonge (PWS) talked of the left leg of Msonge Ndaro being broken and even mentioning the person who was responsible for the attack and even the agent of the fatal blow, a stone, his mother Sikitu Msonge, PWl, who was also present at the site of attack, talked of the right leg of her husband, Msonge Ndaro being broken but without mentioning who was responsible for the fatal blow and with which agent. The fact of the broken leg of Msonge Ndaro was also stated by PW3 (Mika Shadrack Maziku), the Medical Doctor who claims to have conducted the post mortem examination on the body of the deceased, Msonge Ndaro. PW3 talked of seeing the right leg of Msonge Ndaro broken although he forgot to include this vital piece of information in his Post Mortem Examination Report (Exhibit Pl). As such it is still uncertain as to which leg of Msonge Ndaro, if any, was broken, as alleged by PW1, PWS and PW3. Furthermore, the evidence of PW3 has also created some contradictions particularly where he told this Court that it appeared as if the body of the deceased Msonge Ndaro had been set on fire at another place and it was brought to be placed at the place where it was found lying, at the Kibara Cemetery area. PW4 told this Court that, there were some burnt grasses and pieces of wood found at the place where the dead body of Msonge Ndaro was found lying, at the Kibara Cemetery area. According to the testimony of PW4 however, it Page 28 of 44 appears that, the body of Msonge Ndaro was burnt with grasses and pieces of wood at the place where the body was found lying, at the Kibara Cemetery. On his part, DWS told this Court that when he (DWS) arrived at the Kibara Cemetery area he saw the half burnt body of Msonge Ndaro which was still emitting smoke and that there were some burnt grasses and pieces of wood at the area which would suggest that the body of Msonge Ndaro had been set on fire at the Kibara Cemetery area. Clearly, the evidence of PW3 and PW4 is pregnant with some irreconcilable contradictions as to where exactly the body of Msonge Ndaro was set on fire. On the evidence on record, the positioning of the two dead bodies at the Kibara Cemetery area and whether indeed the dead bodies were found lying at the Cemetery area at Kibara remains an unresolved mystery in this case. Unfortunately the Sketch Map of the crime scene alleged drawn by a Police Officer going by the name of Mpangalala, which could have assisted this Court in resolving this mystery, was not tendered in evidence by the prosecution and this for some yet unexplained reasons. Consequently, this Court has been left in the dark as to the positioning of the two dead bodies at the Kibara Cemetery area and whether indeed they were found lying at the Cemetery area at Kibara as alleged. In his testimony, PW3, Mika Shadrack Maziku told this Court that, the dead body of Msonge Ndaro was found lying in a field in the outskirts of Kibara Town. PW2 on his part stated that, the dead body of Msonge Ndaro had been found lying at a farm where there are bushes closer to the Cemetery area {"makaburinl'). The other witnesses, particularly PW4, DW1, DW4 and DWS all stated that, the Page 29 of 44 two dead bodies were found lying side by side at the Kibara Cemetery. As it could be clearly gleaned from the contradictory evidence on record as to the positioning of the two dead bodies, a Sketch Map, in my considered view, would if it had been exhibited, have greatly assisted this Court in resolving the mystery about the positioning of the two dead bodies at the site where it is claimed that they were found lying. The contradictions in the evidence as to where exactly the dead bodies were found lying are quite vivid as I have pointed out herein above. The other area of contradiction comes from the testimony of Sikitu Msonge (PW1) as to the reporting of the incident to the Kibara Police Station where she allegedly rushed shortly after witnessing the accused persons attacking her husband, Msonge Ndaro. In his testimony, PW2, Assistant Inspector Simon Nyamsigwa stated that, on the 30/06/2009 while at the Kibara Police Station, Sikitu Msonge came to the Police Station crying that her husband had been killed. However, according to the testimony of PW4, D.4550 Dt. Cpl Lusana Mpangalala who on 30/06/2009 was also present at the Kibara Police Station stated that, Sikitu Msonge reported about her husband (Msonge Ndaro) being taken by persons she knew to the Cemetery area ("makaburini'') and that she feared that he might have lost his life. Rather curiously, PW2 and PW4 who were both present at the Kibara Police Station at the time when they allege that Sikitu Msonge rushed there and stated what they claim that she said, their evidence as to what exactly Sikitu Msonge is said to have stated at the Kibara Police Station on the 30/06/2009 is quite contradictory. Evidently for the witnesses, PW2 and PW4, who claim to Page 30 of44 have been present at the same time and place by giving a contradictory account of what they claim they heard Sikitu Msonge stating, it raises some doubts as to whether indeed Sikitu Ndaro ever reported on anything to the Kibara Police Station on the 30/06/2009 or concerning what had befallen her husband Msonge Ndaro on the 30/06/2009. In this case, there are areas of serious doubts on the prosecution case, which I shall point out shortly. The first doubt is with respect to the probability of the participation of the four accused persons in causing the death of Msonge Ndaro. What this Court finds extremely difficult to believe is as to the sequence of events of what is alleged to have happened on 30/06/2009. If indeed the relatives of the deceased Karyanja Mtaki, who are the accused in this case, namely, Matata s/ o Masamaki, Noah s/ o Masamaki and Papula s/ o Matata @ Haji, as well as the Village Chairman, Mtesigwa s/o Nyanguli @ Philmon, were all the time at the Kibara Police Station, and as per the evidence on record they were moving from the Kibara Police Station to the Cemetery area and back on 30/06/2009, and considering as per their uncontroverted evidence, that they had been at the Kibara Police Station since 9.00 am in the morning of the 30/06/2009 throughout a good part of that day, at what point in time exactly could they be said to have gone back to the home of Msonge Ndaro and thereby participated in attacking and beating him up, drag him to the Cemetery area and set his body on fire and then go back to the Kibara Police Station to report about the incident? If what PW1, Sikitu Msonge, told this Court that, after having rushed to the police station to report about the attack incident of her husband, she found the Chairman, (Mtesigwa Nyanguli) at the Kibara Police Station, then at Page 31 of 44 wh~t point in time, 'did the Chairman, Mtesigwa Nyaguli participate in attacking and killing her husband, the deceased, Msonge Ndaro? How could it be possible for the Chairman, Mtesigwa Nyanguli to be at two places in the same time? All these questions have not received answers "from the prosecution evidence and thus remain the main area of doubts against the prosecution case, which doubts in principle have to be resolved in favour of the four accused persons before this Court. The other area rive with some serious doubts is with respect to the time lapse between the finding of the dead body of Karyanja Mtaki and that of Msonge Ndaro at the Kibara Cemetery area. According to the testimony of PWS, Frank Msonge, the attack event against Msonge Ndaro lasted about an hour. This means that there was only a lapse of about an hour between the discovery of the first dead body of Karyanja Mtaki and the partly burnt and still emitting smoke body of Msonge Ndaro, at the Kibara Cemetery area, and where it is alleged that the two dead bodies were found lying side by side. However, as per the testimony of Matata s/o Masamaki (the 1st Accused) (DW1) and Mtesingwa s/o Nyanguli @ Philmon (the 4th Accused) (DW4) and some of the team of Police Officers under the command of the Office of QC-CID Bunda, they were at all material time with the Police following up on the discovered dead body of Karyanja Mtaki at the Cemetery area and that they even went together to the Kibara Cemetery area on 30/06/2009 and that, they found a second dead body which was still emitting some smoke which had been partly burnt, which dead body was later to be identified as that of Msonge Ndaro, the traditional doctor. As per the evidence on record, it is still a mystery as at what point in time exactly, did the accused persons manage to Page 32 of 44 participate in attacking and beating up Msonge Ndaro and also continue following up with the police on the death of their relative, Karyanja Mtaki. Another area which has cast some serious doubts on the prosecution case is as to the mystery about when exactly did the death of Msonge Ndaro occur and what caused his death? On the evidence by· the prosecution it is not clear when the alleged death of Msonge Ndaro occurred and what caused it and who was responsible for his death. It is rather disturbing that, up and until now this Court is still in the dark as to the cause of the death of the two persons, Karyanja Mtaki and Msonge Ndaro, whose dead bodies were alleged found lying in the Cemetery area at Kibara on 30/06/2009. Rather unfortunately, the Medical Doctor, PW3, Mika Shadrack Maziku, who allegedly conducted the post mortem examination of the body of Msonge Ndaro, and prepared a Post Mortem Examination Report which he tendered in evidence as (Exhibit Pl), it has been established that actually he did not manage to complete the post mortem examination of the body of Msonge Ndaro at the area it was found lying for when he set about conducting the post mortem examination he collapsed and fainted and had to be rushed to hospital for treatment There is no evidence at all if PW3 ever attempted to conduct a post mortem examination on the body of Karyanja Mtaki. The absence of a complete post mortem examination report on the two dead bodies has therefore denied this Court the opportunity to resolve the mystery behind the cause of the death of both Karyanja Mtaki and Msonge Ndaro. As I intimated to earlier in this Judgment, none of the Page 33 of 44 prosecution witness stated as to the fact of witnessing the death of Msonge Ndaro and as to the fact of the immediate cause of his death. The other disturbing feature in this case is in relation to the events leading up to the death of Msonge Ndaro and particularly who informed the Police about his death? It is borne out of the narration by the Village Leaders who were present at the Kibara Police Station including the then Councilor (DWS), the then Village Chairman (DW4), the Village Executive Officer (Bertha) and the Divisional Secretary and some few villagers who are alleged to have accompanied one Police Officer called Chacha to the Kibara Cemetery area, who strangely enough the prosecution did not bother to bring him to testify in this case. The said Police Officer Chacha is said to have acted on orders of the OCS of Kibara Police Station to go to the Kibara Cemetery area for purposes of identifying a dead body of a female person which had been found lying there. According to the OCS of Kibara, the finding of the dead body was by being tipped by the Intelligentsia. The dead body was later to be identified as being that of Karyanja Mtaki who had been reported to the police as missing as from 24/06/2009. Neither of the prosecution witnesses informed the police about the death or the finding of the dead body of Msonge Ndaro at the Kibara Cemetery area. According to Sikitu Ndaro (PW1), the accused persons attacked her husband, Msonge Ndaro, at his home. And then the accused persons took her husband to another place while still alive. That she decided to rush to the Kibara Police Station where she went to report about the incident. That when she arrived at the Kibara Police Station she found many people assembled there including the Chairman, Mtesigwa Nyanguli, the 4th accused herein, who ordered the crowd to Page 34 of 44 beat her (Sikitu Msonge) up because she was the wife of Msonge Ndaro. That she rushed into the office of the Officer Commanding Station (OCS) and that she was crying and trembling. That the Officer Commanding Station told her to stop crying and to sit down and give her statement. That while still at the Kibara Police Station, she was informed that her husband has already died. A close analysis of the above testimony by Sikitu Ndaro (PW1) will reveal that she never reported to the Kibara Police about the attack on her husband by the accused persons nor about the death of her husband Msonge Ndaro. Although it is alleged that Sikitu Ndaro (PW1) recorded her statement to the Police, unfortunately it was never tendered in exhibit. As such this Court has been plunged into the dark as what exactly was recorded by Sikitu Msonge in her statement at the Kibara Police Station. Evidently, Sikitu Msonge (PWl) rushed to the Kibara Police Station while her husband was still alive and allegedly had been taken to some unknown place. Unfortunately the testimony by the Officer Commanding Station of Kibara Police Station, Assistant Inspector Simon Nyamsigwa (PW2) that, a lady called Sikitu Msonge came to the station crying that her husband has been killed contradicts what Sikitu Msonge (PW1) stated that she reported that her husband had been taken to some unknown place and that she feared that her husband might have lost his life. On his part Frank Msonge (PWS) stated that, he ran to the Kibara Police Station and found her mother inside the police station and decided to sit there. A close look at the evidence of PWS would reveal that, even Frank Msonge did not report anything to the police about the death of his father, Msonge Ndaro. Page 35 of 44 It is for the above reasons that, this Court finds and determines that, neither PWl nor PWS reported about the beating, the death or the finding of the dead body of Msonge Ndaro. The link between the death of Msonge Ndaro and the death of Karyanja Mtaki constitute another disturbing feature in this case. If what was stated in Court is anything to go by, it is Mashauri Chenge, the husband to Karyanja Mtaki who reported about his wife Karyanja Mtaki going missing on 24/06/2009 and also it is Mashauri Chenge who had taken Karyanja Mtaki to the traditional doctor, Msonge Ndaro. Later as per the evidence on record, -the dead body of Karyanja Mtaki was found in the Cemetery area at Kibara with some of her body parts missing. It is rather curious that, the prosecution never bothered to bring Mashauri Chenge to court to testify despite holding a very vital piece of evidence about the fact of taking his wife Karyanja Mtaki to the traditional doctor, Msonge Ndaro, for treatment, and being the first person to report about the fact of his wife going missing who as we are told he (Mashauri Chenge) is the one who had taken his wife (Karyanja Mtaki) to the traditional doctor (Msonge Ndaro) for treatment. In my considered view, this Mashauri Chenge was the last person to be been seen with the deceased, Karyanja Mtaki immediately before her alleged disappearance. As it would appear in this case, the fact of Karyanja Mtaki going for treatment to the traditional healer, Msonge Ndaro, and the fact whether it was Mashauri Chenge who had taken his wife to the traditional doctor and whether Msonge Ndaro who was the last person to be seen with Karyanja Mtaki while still alive have never been established by the prosecution before this Court. In any event it is hard to believe that, Page 36 of 44 Mashauri Chenge having taken his wife to the traditional doctor for treatment he would turn around and start looking for her and report to the Police that she had gone missing. It is rather baffling that, despite the fact that two dead bodies were found lying in the Kibara Cemetery area, the Police seems to have marshaled all their investigative efforts at finding and arresting the suspects in relation to the death of Msonge Ndaro but no such efforts have been directed by the Police at finding those suspected of being responsible for the death of Karyanja Mtaki. On the part of the Police failing to take any· investigate action with regard to the cause of the death of Karyanja Mtaki, this clearly has dented the link which most probably could have assisted in resolving the mysterious deaths of the two persons, Karyanja Mtaki and Msonge Ndaro and ultimately whether the death of Msonge Ndaro was as a consequence of the death of Karyanja Mtaki. What is also quite disturbing is the strange action taken by the QC-CID of Bunda of issuing orders from the Cemetery area at Kibara permitting the relatives of Karyanja Mtaki and Msonge Ndaro to proceed with burial arrangements of the deceased without having been satisfied by a complete and thorough post mortem examination of the two dead bodies by a competent and medically qualified person as to the cause of the death of both Karyanja Mtaki and Msonge Ndaro. This was highly critical particularly given that there were allegations that the dead body of Karyanja Mtaki was found without some of her body parts and particularly her tongue and private parts, and that, her body had already started to decompose which suggests that it had been dead for some days. As such the failure by the Police to carry out a thorough Page 37 of 44 investigation into the cause of the death of Karyanja Mtaki and Msonge Ndaro has led to this Court not being able to determine the exact cause of the death of Karyaja Mtaki and Msonge Ndaro which still remain a matter of mere speculations without any cogent medical report to back them up. In view of the unsatisfactory nature of the investigation of the cause of death of the two persons whose dead bodies were found lying at the Cemeter area at Kibara, there is no tribunal or court worth its name which would rely on such evidence as presented by the prosecution to found a conviction against the four accused persons before this Court who are being accused of having committed the murder of Msonge Ndaro. In their respective testimonies both the 2nd Accused, Noah s/o Masamaki and 3rd accused person, Papula s/ o Matata @ Haji who are relatives of Karyanja Mtaki, raised what seems to me to be a defence of alibi. They both alleged that on the material date, that is 30/06/2009, they were not at the home of Msonge Ndaro. On his part the 2nd Accused, Noah s/o Masamaki stated that on 30/06/2009 he had gone to a fish market to fetch some fish. On his part, the 3rd accused person, Papula s/ o Matata @ Haji stated that on 30/06/2009 he was at school and that he got the information both of the disappearance of her grandmother Karyanja Mtaki, and her being found dead from one HALIMA. In raising their defence of alibi, clearly the 2nd and 3rd accused persons did not comply with the requirements of the Criminal Procedure Act 1985 [Cap. 20 R.E 2002]. However, although they failed to do so, this Court has a duty to consider their defence of alibi and it may in its total discretion accord no weight to such defence. However, by raising Page 38 of 44 the defence of alibi, the 2nd and 3rd accused persons did not thereby assume the burden of proving it. It is sufficient if such alibi introduces some reasonable doubt on the prosecution case. I have carefully gone through the respective evidence by both the 2nd and 3rd Accused persons. It is doubtful if the 3rd Accused, Papula s/ o Matata @ Haji who at the material time was a Form II Secondary School student be at the crime scene on the 30/06/2009 day from 10:00 am to 11:00 am at the time when normally students are supposed to be at school studying. There was no evidence that the 3rd accused person was not at school on 30/06/2009 between 10.00 am and 11.00 am. On the part of the 2nd Accused person, Noah s/ o Masamaki there is no corroborative evidence that, on the fateful day of 30/06/2009 from 10:00 am to 11:00 am the 2nd Accused was not at the fish market buying fish for business as he alleges. As such I find that the defence of alibi raised by 2nd and 3rd accused persons has managed to introduce some reasonable doubt on the prosecution case as against them. The procedures leading to the arrest of the accused persons in this case, have also cast some serious doubts on the prosecution case. It was the evidence of PW2 that, at the Kibara Police Station, Sikitu Msonge (PWl) mentioned Mtesigwa s/o Nyanguli, Matata s/o Masamaki, Noah s/ o Masamaki and Papula s/ o Matata @ Haji as being the persons who had attacked and killed Msonge Ndaro. As at the time PWl mentioned to the Police about all the four accused persons being responsible for the death of her husband, Msonge Ndaro, had yet to be dragged towards the Cemetery area. Considering the fact that Mtesigwa Nyanguli and Matata Masamaki were at all times with Police Officers, it does not sink into the mind of any reasonable Page 39 of 44 • person what made it so difficult for the Police and why didn't the Police Officers arrest Mtesigwa Nyanguli and Matata Masamaki immediately having been told by Sikitu Msonge that they were possible offenders of the charged crime. The record shows that Matata s/ o Masamaki (1 st Accused) was arrested on the 01/03/2009 and Mtesigwa s/ o Nyanguli ( 4th Accused) was arrested on the 28/01/2016. Since as per their own uncontroverted evidence, all the for accused persons participated in the burial of Msonge Ndaro, and that the Chairman, Mtesigwa Nyanguli was tasked by the Police to remove the two dead bodies from the Kibara Cemetery area having identified them, it is quiet if not equally a mystery, as to why the Police Officers failed to arrest the accused persons on the fateful date, who as per the evidence on record were in the midst of police officers. The sequence of events and failure by the Police Officers to make immediate arrest of the accused persons who were with them all the time, casts some serious doubt on the prosecution case if indeed Sikitu Msonge ever informed the Police Officers the persons who were suspected to be involved in killing her husband, Msonge Ndaro. The offence with which the four accused persons stood charged before this Court jointly is murder. The four accused person before this Court are being accused of jointly killing one Msonge Ndaro on the 30/06/2009. The offence of murder is committed where any person with malice aforethought causes the death of another person by an unlawful act or omission. In the present case, it was alleged that the four accused persons jointly carried out their common intention of killing Msonge Ndaro. In the eyes of the law, when two or more person form a common intention to prosecute an unlawful act in conjunction with Page 40 of 44 one another, and in the prosecution of such unlawful act an offence is committed of such a nature that, its commission was a probable consequence of the prosecution of such unlawful act, each of them is deemed to have committed the offence. The burden of proof is only discharged when the evidence adduced by the prosecution has the conclusive effect of proving the guilty of the four accused persons beyond any reasonable doubt. Any doubts on the prosecution case must be resolved in favour of the accused persons. I have outlined in greater details herein above the areas in this case where serious doubts have been cast on the prosecution case to the effect that the prosecution has not been able to establish the charge of murder against all the Accused persons jointly. The noted doubts are so serious since they go to the root of the charged offence of murder, which doubts must be resolved in favour of all the four accused persons. In this Judgment I have also addressed some of the inconsistencies and contradictions in the testimonial evidence by the prosecution witnesses,- which I find them to be so serious since they also go to the root of the charged offence. On the legal consequences of inconsistencies and contradictions in the testimonies by witnesses I am enthused by the wise words in the case of MOHAMED SAID MATULA v. REP. [1995] TLR No. 3, that; "Where the testimonies by witnesses contain inconsistencies and contradictions, the Court has a duty to address the inconsistencies and try to resolve them where possible; else the Court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root of the matter. '' Page 41 of 44 I have addressed the inconsistencies and contradictions in the testimonies by witnesses and have come to the conclusion that they are not minor for they go to the root of the matter. On the totality of the evidence on record, this Court finds that, the prosecution has not been able to make its case against all the four accused persons beyond any reasonable doubt. In my summing up the prosecution and defence evidence to the Court assessors who in their respective opinions have each returned a verdict of NOT GUilTY against each of the four accused persons, namely, Matata s/o Masamaki, Noah s/o Masamaki, Papula s/o Matata @ Haji and Mtesigwa s/o Nyanguli@ Philimon, the 1st , 2nd , 3rd and 4th Accused persons, which verdict I do not find any good reasons to differ with, I find that the murder charge against all the four accused person fails. It is hereby dismissed. The 1st accused person, Matata s/ o Masamaki, the 2nd , accused person, Noah s/ o Masamaki, the 3rd accused person, Papula s/ o Matata @ Haji, and the 4th Accused person Mtesigwa s/ o Nyanguli@ Philimon, are hereby discharged from the offence of murder they stood jointly charged before this Court contrary to section 196 and 197 of the Penal Code, Cap.16 R.E. 2002. The four accused persons, namely; Matata s/ o Masamaki, the 1st accused person, Noah s/ o Masamaki, the 2nd accused person, Papula s/ o Matata @ Haji, the 3rd accused person, and Mtesigwa s/ o Nyanguli@ Philmon, the 4th accused person are hereby released from prison custody where they are being held and are to be set at Page 42 of 44 liberty forthwith unless they are being held there for some other lawful reasons. It is so ordered. SGD: R.V. MAKARAMBA JUDGE 26/05/2017 Date: 26/05/2017 Coram: Hon. Makaramba, J. Ms. Ndunguru: State Attorney for the Republic - Present Mr. Makongo, Advocate: Counsel for all accused persons - Present Accused name: 1. Matata s/o Masamaki - Present 2. Noah s/o Masamaki - Present 3. Papula s/o Matata @Haji - Present 4. Mtesigwa s/o Nyanguli @ Philmon - Present B/C: L. Mtaki Court Assessors: 1. Peter Paremo - Present 2. Fatuma Juma - Present 3. Bahati Mtarima - Present Ms. Ndunguru: My Lord, the matter is coming for Judgment and we are ready to receive it. Mr. Makongo: My Lord, we are ready to receive the Judgment. Order: 1. Judgment delivered. Page 43 of 44 2. Three Court Assessors present are hereby thanked and discharged. 3. Right of appeal fully explained. JUDGE ATMUSOMA 26/05/2017 .~ I Page 44 of 44