republic vs yusuph so hamadi magesa 2018 tzhc 2942 28 march 2018

IN THE HIGH COURT OF TANZANIA In the District Registry at Mwanza ORIGINAL JURISDICTION HIGH COURT CRIMINAL SESSION CASE NO. 119 OF 2012 (Original Criminal Case No. 25/2012 of Nyamagana District Court at Mwanza) THE REPUBLIC VERSUS YUSUPH S/O HAMADI MAGESA @ BABUU Last Order date: 16/03/2018 Hearing dates: 06th, 09th& 10thof November, 2015 & 14th,15th& 16thof March, 2018 Judgment date: 28/03/2018 Counsels: For the Republic.: Mr. Kidando R., learned Senior State Attorney M/s Gisela Alex, learned State Attorney For the Accused: Mr. Outa, learned Advocate JUDGMENT MAKARAMBA, J.: This is Judgment in a case in which YUSUPH S/O HAMADI MAGESA @ BABUU, the accused,isfacing a chargeof murder c/s 196 and 197 of the Penal Code, Cap.16 R.E. 2002. It is alleged that on 29th day of January 2011, at NORTH-MECCO-NYAKATO,within NYAMAGANA District in MWANZA Region, the accuseddid murder one BEJAMIN S/O SAMSON @ TAIFA, the deceased. The accused pleaded "Not Guilty" to the charge. 1 The accused having pleaded "Not guilty" to the charge of murder, the prosecution therefore had the burden of proving the offence of murder against the accused beyond any reasonable doubt.At the Preliminary Hearing (PH) conducted on 21/ll/2012before Hon. M.G. Mzuna J., the following matters were recorded in the Memorandum of Matters Not in Dispute, namely: (1) That, the name o f the accused and the deceased as per the charge/information; (2) That, one Benjamin s/o Saimon @ Taifa is dead and his death was unnatural; (3) That, on the eventful day the accused and the deceased were together dancing disco prior to his death; and (4) That, the accused was arrested and then charged in court after the deceased's death. In view of the matters not in dispute, what remained for the prosecution was to provethat: 1. The alleged death of BENJAMIN S/O SAIMON @ TAIFA, the deceased, was under the contrivance of the accused, YUSUPH S/O MAGESA @ BABUU, and 2. It is the accused person before this Court who actually killed the deceased. In establishing its case against the accused, the prosecution brought a total of four (4) witnesses who testified under oath during the trial, namely; E.8153 D/Sgt.Sagali (PW1), E.5197 D/Sgt. Juma (PW2),Inspector Mbogo(PW3)and IdrissaJumaMunungwa(PW4). The Prosecution also tendered in evidence four exhibits, theSketch Map of the crime scene (Exhibit Pl)and the Postmortem Examination Report of the Deceased (Exhibit P2), which were tendered and admitted in evidence during the Preliminary Hearing before Hon. Mzuna 3., on 04/ll/2012.The knife(Exhibit P3),which is alleged that the accused used to stab the deceased with, and the Cautioned Statementof the accused (Exhibit P4),which was recorded by a Police Officer with No.E.5197 D/SgtJuma on 31/01/2011 from 10.00 hrs. tol2.00 hrs., were both tendered and admitted in evidence during the hearing of the case before the predecessor presiding Judge Hon. Mlacha, J., on 06/11/2015 and 09/11/2015 respectively. It is alleged by the prosecution that it is the accused who handed over the knife to the police. It was received in evidence without protest from the defence. The Cautioned Statement of the accused (Exhibit P4) was however, received and admitted in evidence only after the presiding predecessor Judge Hon. Mlacha, J, had, in his Ruling dated 12/10/2015, overruled one of the two objections the learned Counsel for the Defence, Mr. Outa, had raised in protest to its being admitted in evidence. The two points of preliminary objection raised by Mr. Outa were that, the procedure for recording the Cautioned Statement had not been complied with and that, the confessional "extra judicial statement" (sic!) was not voluntarily made by the accused. The presiding predecessor Judge Hon. Mlacha J., having excused the sitting Court Assessors, so as "to give room to conduct a "trial within a trial', heard some witnesses namely; Fratern W. Temba(PWl),F.2464 D/Cpl.Theophilous(PW2) and the accused (DW1). The impugned Cautioned Statementand the PF3 of the accused were produced and marked as Exhibit "A"and Exhibit "B"respectively. Ultimately, the presiding predecessor Judge overruled the first limb of the objection raised by Mr. Outa, and admittedin evidence the Cautioned Statementof the accused as Exhibit P4. Mr. Outa promptly prayed to withdraw the second limb of the objection on the involuntariness of the confession, which prayer the presiding predecessor Judge readily granted. Due to the transfer of the presiding predecessor Judge, I took over the case and continued with the trial, at a stage where three (PW1, PW2 and PW3) of the four prosecution witnesses had already testified. Having complied with the requirements of section 299 of the Criminal Procedure Act, Cap. 20 R.E. 2002, and the accused having readily acceded to proceed with the trial from where it had stopped, I continued with the trial by receiving in evidence the testimony of the last prosecution witness, PW4, IdrissaJumaMunungwa. The events leading up to the murder of Benjamin s/o Saimon @ Taifawith which the accused Yusuph s/o HamadiMagesa @ Babuu now stands charged, took place on the evening of 29/01/2011 at North Mecco-Nyakatoarea withinNyamagana District in Mwanza Region.I take judicial notice that the 29th day of January 2011 wasa Saturday. On the fatefulevening of the Saturday of 29/01/2011, there happened to be a wedding ceremony at which both the accused and deceased,as per the testimony of PW4 (IdrissaJumaMunungwa) attended, but without being invited. In his defence, the accused (DW1) denied ever being at such a wedding and not knowing PW4, who had claimeci in his testimony of knowing each other and even having played football together. . In his testimony at the trial PW4 stated that on the evening of the eventful day of Saturday of 29/01/2011,having had his dinner, went tothe place where the wedding ceremony was taking place arriving there at' around 7.30 pm.He found the accused already there anddancing with a light skinned huge sizedwoman whose name he could not remember although he had previously seen her at NyakatoSokoni. PW4testified further that, he saw the deceased, Benjamin s/oSaimon @ Taifa,pointing his finger at the accused Yusuph s/o HamadiMagesa @ Babuu, who was standing behind thelight skinned huge sized woman,while the deceased holding his hand to his chest covered with a black jacket, bleeding profusely, whereupon the deceased fell down on the ground and that immediately thereafter he saw the accused running away towards the direction to his home. When asked a question by Court Assessor (ConstantineLukoma),PW4 stated that Babuuwas talking to his friends where he was standing and that he knew that the deceased was pointing at Babuu because he ran away after being pointed at by the deceased.PW4 explained also that he was standing in front of Babuu and that there was a short distance between where the deceased was dancing from to where Babuu was standing and that the deceased andBabuu were close to each other. According to the testimony of PW2 who passed by the crime scene on his way back to the Police Station while in a car with another Police Officer and a father they had arrested in connection with a case of child abduction, he saw a huge crowd of people at the place where there was a wedding ceremony and music being played, PW2 narrated further that they took the deceased who at the time was breathing with problems to the Police Station where they obtained a PF3 and took the victim to the SekouToure Hospital for treatment but he was later informed by the deceased father that the deceased had died at the” hospital while receiving treatment. A postmortem examination was carried on the body of the deceased and as per the Postmortem Examination Report (Exhibit P2), the cause of death of the deceased Benjamin s/oSaimon @ Taifawas described as being due to "hemorrhagic shock due to pericardial hematoma die to chest wound on the left chest due to sharp object:The Medical Officer who examined the body of the deceased stated further in Exhibit P2that, "the said deceased found with a stab wound - left chest - 2cm max length penetrating through the 5-&h intercostal space to the middle right ventricle of the heart” The knife (Exhibit P3) which the prosecution alleges that the accused used to stab the deceased with on the fateful Saturday evening of 29/01/2011 was tendered and received in evidence, apparently being the "sharp object'tlescriped in Exhibit P2. On the part of the defence, the only witness was the accused himself and he testified under oath as DWl.The accused did not offer in evidence any exhibit. On 16/03/2018 after having summed up the evidence of the prosecution and defence for the assessors as required under section 198(1) of the Criminal Procedure Act, Ca, 20 R.E. 2002,each of the three Court’ Assessors who sat with meon the trial gave his or her respective opinion. Two of the three Court Assessors having given their opinions returned a verdict of "Guilty" against the accused. One Court Assessor having given his opinion returned a verdict of "Not Guilty" against the accused. I propose to address myself on theopinions of the Court Assessors in due course, but let me first deal with the prosecution 6 and the defenceevidence with respect to a number of issueswhich have cropped up in the course of the hearing of this case. I propose to begin with the evidence in respect of the events which took place at the crime scene on the fateful evening of Saturday, the 29th day of January 2011, at NORTH-MECCO-NYAKATOIeading to the deceased being stabbed to death. As per the testimony of PW4, on the eventful day of Saturday the 29th of January 2011, there was a wedding ceremony at which both the accused and the deceased were present albeit without being invited. In his testimony however, the accused (DWl)has denied being at the wedding ceremony as alleged by PW4 or even knowingPW4 and that he only saw PW4 here in court during the trial. On the evidence on record, it is only PW4 whoclaims to have seen what happened on the evening of 29/01/2011 when the deceased is alleged to have been stabbed by the accused using a "sharp object',which caused severe bleeding leading to his death. However, PW4 when being cross-examined by Mr. Outa, learned Counsel for the defence as to whether he (PW4) saw the deceased being stabbed and the person who had stabbed the deceased, PW4 simply responded that, he neither saw the deceased being stabbed or even the person who had stabbed the deceased. In the course of his testimony, PW4 gave some quite contradictory account of the time he alleges that the events causing the death of the deceased took place. During the trial, PW4 was contradicted by Mr. Outa, learned Counsel for the defenceon his statement to the police and his testimony in court. In the statement PW4 gave to the Police on 30/01/2011, PW4is recorded to have stated that the event happenedon 29/01/2011 at 23.00 hrs. However,in his testimony in chief while being led by Mr. 7 Kidando,learned Senior State Attorney for the Republic, PW4 stated that the event happened on 29/01/2011at 8.00 pm.On being contradicted on this apparent discrepancy between the time of the occurrence of the event as indicated in his statement to the Police and his testimony during the trial, PW4 stood steadfastly by bothstatements as being the correct account of the time the event of stabbing happened. It was also the further testimony of PW4 that on the eventful day he left home for the wedding ceremony having taken his dinner and that, upon arriving at the place where the wedding ceremony was taking place around 7.30 pm., he found the deceased already there dancing with a light skinned huge sized womanto the tunes of the music which was being played by the DJ. PW4 described the deceased as being his "great friend." PW1, E.8153 D/SgtSagaliaiso described the time during which the alleged event is said to have occurred on the fateful evening of the Saturday of 29/01/21011. On being cross-examined by Mr. Outa, PWlstated that he (PW1) arrived at the place where there was a wedding ceremony and that music was being played and it was at 23:45 Hrs. PW1 stated further that he arrived at the pace in a car in the company of another Police Officer,D/Charles Naftali, and a suspect of a case in which a father was being accused of child abduction which PW1 had been assigned to investigate.However, in his statement to the Police dated 29/01/2011, PW1 stated that he arrived at the area at 22.40 hrs. At the trialPW l testified in chief that upon passing by MECCO area on his way back to the Police Station between Nunduand 8 NyakatoSokoni, that is when he came across a crowd of people who were in a wedding ceremony at North of MECCO at a place called Kangae. PW1 stated further that at the place where the wedding ceremony was taking place there was a boy with a Red T-shirt full of blood whose name he was told that it was Benjaminand who was still breathing slowly.PWl stated further that he discovered that the boy who had been injured had been stabbed with a knife on his left rib side because the wound was still bleeding. PW1 stated further thatBenjamini was lying on the "foundation" where there was stream of blood flowing. PWlstated further that in their search for reports about the incidence they managed to arrest one boy called MaroMachota and upon questioning him he told them that the "guy" who had killed the deceased was Yusuphpopularly known as Babuu.PWl stated further that they picked the victim from the area, and took him to the Police Station, where they opened a file, and issued the victim with a PF3 and D/C Charles took the victim to SekouToure Hospitalfor further management. PW1 told this Court that the boy they had arrested directed them to where Yusuphwas and that they went there and met with his mother and his sister and demanded from them to know where Yusuphhad spent the night, but upon searching his room they could not find him there. Another prosecution witness, PW2, E.5197 D/SgtJumastated that, on 31.01.2011he was assigned the task of investigating the murder case of Benjamin.PW2 stated that hewent to the crime scene and got a secret report that, it was Yusuph, a Form TwoStudent at Binza Secondary School who had killed Benjamin.PW2stated further that, the Police laid a trap to nabYusuph, and guided by their "secret agents" they made a follow up on the whereabouts of Yusuph and arrested his parents so that they could show them where Yusuphhad gone. PW2stated further that his (Yusuph) parents led the police to the house of one a Mr. Deus at mid night, whereupon his father knocking at the door, they entered inside and arrested Yusuph. Clearly on the evidence on record, none of the prosecution witnesses, namely; PW4, PW1 or PW2 in their respective testimonies during the trial stated that they actually saw the accused stabbing the deceased with a knife. Both PW1 and PW2 seem to haverelied on hearsay from what they fondly referred to as "secret agentt' as to the fact of the accused being responsible for stabbing the deceased with a knife on the material day of 29/01/2011. Curiously, if indeed as PW4 stated that there were many people at the wedding ceremony, it is baffling that the accused having committed such a heinous crime would simply manage to melt- away from the crime scene and disappear to some unknown place. It does not require a lot of imagination to knowthat,for some yet unknown reasons PW4 decided to comeup with a fiction and not concrete facts as to what he actually claims to have seen taking place at area where there was a wedding ceremony on the eventful day of 29/01/2011. PW4 having went to that area at 7.30pm. and having found the deceased already there, it is more improbable than probable that the deceased was stabbed at 8.00 p.m.,and the Police Officer, as per PWltestimony arriving at the crime scene at 23.45 hrs.,.to find the deceased lying on a "foundation" with stream of blood flowing but still breathing albeit with some difficulty. Given the seriousness of the wound the deceased sustained as evident in the Post Mortem Examination Report (Exhibit P3), the account of the prosecution witnesses who 10 claim'to have been at the crime scene at the time the alleged event is said to have happened or immediately thereafter has failed to establish to the required standard the participation of the accused in the alleged stabbing to death of the deceased. The testimony of the only eye witness of the event, PW4,in my considered view has raised some serious contradictionsas to the time the alleged stabbing event occurred such that it has left this Court with only one conclusion, that, PW4 was not a witness of truth of what he alleges to have seen taking place at the crime scene on the eventful evening or night of 29/01/2011. The other piece of evidence which in my opinion was so critical in this case was the description of the state of the place where it is alleged the • murder event happened, particularly with regard to the intensity of light. In so far as the question of the intensity of light is concerned, even assuming for a moment that the event took place at 8.00 pm or 22.40hrs.or23.45 hrs. still, itwould be reckoned as being during night time thus bringing into question whether there was sufficient light to enable PW4 to see all that he claims to have seen taking place at the crime scene during that time of the day. In his testimony in chief, PW4 told this Court that at the place where the wedding ceremony was taking place there were two large electric bulbs with very bright light which made him able to see clearly everything that was taking place there. However, while describing what happened when the Police Officers arrived at the crime scene, PW4 told this Court that, the police had used a torch to beam at the deceased who was lying on a bench like chair made of sand. When cross-examined by Mr. Outa if he (PW4) remembers if power went out at the time and whether there was a generator which was being used to generate power, PW4 did not 11 seem to remember any of these facts. As I stated earlier, be it 8.00 hrs. or22.40 or 23.45 hrs., it was at night. If indeed there was bright light from two electric bulbs as PW4 wishes thus Court to believe, why would the Police use a torch to beam at where the deceased was found lying down. Chances are that it was dark thus making it difficult for PW4 to be able to see and recognize the person who had stabbed the deceased. It is no wonder therefore PW4 could not be able to see the deceased being stabbed and the person who had stabbed the deceased. It is for these reasons that the evidence in this case seems to revolve mainly around circumstantial evidence. As it was succinctly propounded by the Court of Appeal in its decision in the case of MalongoMahaja and 2 Others v. R., Criminal Appeal No. 236 of 2015^CAT)(Tabora) where the only evidence is of circumstantial nature linking the accused with the death of the deceased, it must irresistibly lead to the inference that the accused and nobody else killed the deceased. I the nature of things most of the evidence in this case point at the suspicious behavior of the accused and particularly the accused running away, if ever he did, immediately after being pointed at by the deceased, if he ever did, as PW4 has narrated during the trial. This Court cannot rely on suspicion to found a conviction on the basis of circumstantial evidence as it was determined by the Court of Appeal of Tanzania at Mtwara in its decision in the case of Mohamed Se/emani vs. R. Criminal Appeal No. 105 of 2012. At page 6-7 of that decision, the Court of Appeal cited with approval the decision of the Supreme Court of India in Balwinder Singh v. State of Punjab, 1996 AIR 607 that: 12 "In a case based on circumstantial evidence the court has to be on its guard to avoid the danger o f allowing suspicion to take the place o f • legal proof and has to be watchful to avoid the danger o f being swayed by emotional considerations, however strong they may be, to take the place o f proof (See, also SARKAR ONEVIDENCE, 15th Ed, p.65). The Court of Appeal of Tanzania in Mohamed Selemani case (above) also citedthe decision in R. V. KipkeringArapKoske and KimureArapMatatu[1949] 16 E.A.L.R. 135, where the Eastern Africa Court of Appeal held as follows; ,fThat in order to justify, on circumstantial evidence, the inference o f guilt, the inculpatory facts must be incompatible with the innocence o f the accused and incapable of explanation upon any other reasonable hypothesis than o f his guilt, and the burden o f proving facts which justify the drawing of this inference from the facts to the exclusion o f any reasonable hypothesis o f innocence is always on the prosecution and never shifts to the accused" (See, also Attorney General v. Murakaru [1960] E.A. 484 at 488- 489; Handa s/o Kisongo v. R [1960] EA 780; ShabanMpunzu@ Elisha Mpunzu v. R, Criminal Appeal No. 12of2002 (CAT) unreported)." On the trite principles to guide a court of law when dealing with circumstantial evidence, the decision of the Court of Appeal of Tanzania in the case of GodlizenDaud @ Mweta and Solomon Joel @ Soloo v. Republic, Criminal Appeal No. 259 of 2014 (unreported), (CAT) (Arusha) comes into consideration. At page 11 of its Judgment 13 the Court of Appeal restated the principles for grounding a conviction on circumstantial evidence, as follows; I (i) 'The evidence must be incapable o f more than one interpretation; (ii) The fact from which an inference o f guilt or adverse to the accused is sought to be drawn; must be proved beyond reasonable doubt and must clearly be connected with the facts from which inference is to be drawn or inferred; (Hi) In murder cases, evidence should be cogent and compelling as to convince a jury, judge or court that upon no rational hypothesis other than murder can the facts be accounted for." On the evidence on record, the prosecution has not been able to establish clearly the various circumstances in the chain of events such as to rule out reasonable likelihood of the innocence of the accused. When cross-examined by Mr. Outa as to whether he was seated or standing at the wedding ceremony given that he had not been invited, PW4 stated that he was standing just about three paces in front of the place where the deceased and the light skinned huge sized woman were dancing from and that, the accused was standing behind that woman. PW4 stated in examination in chief that while so standing, abruptly the accused patted him on his shoulder from behind and that is when PW4 saw the deceased pointing his finger at the accused while holding his hand to his chest bleeding profusely and immediately he collapsed in front of PW4. PW4 stated further that he saw the accused running away immediately after he had been pointed at by the deceased. However, when PW4 was contradicted by Mr. Outa on what PW4 had stated in his statement to the Police, which he read loudly in 14 Court, it came out that there was a time when PW4 had told the deceased that he (PW4) was feeling tired and that he was going upstairs to get some rest. Clearly if what PW4 explained as regards where he was positioned at the place where the wedding ceremony was taking place, and what he says he saw taking place there, then it is hard to believe if indeed what PW4 stated is what actually took place. I my considered view, it could not have been humanly possible for the deceased who was dancing while the accused standing behind the woman the deceased was dancing with, for the accused to stab the deceased on his chest and for the accused to pat PW4on his back while PW4 heading upstairs,and then all of a sudden the deceased to fall infront of PW4, while at the same time the deceased pointing his finger (kusonda) at the accused who was standing behind the light skinned huge sized womanPW4 allegeswas dancing with the deceased. Besides, it was the testimony of PW4 that the accused was charting with his three friends when the dancing was going on, thus making it a guesswork as to whom of the friends of the accused the deceased was pointing his finger at, if ever he did. Clearly the allegation that, the accused stabbed the deceased and that the accused pointed a finger at the accused as the person responsible for the stabbing borders on mere speculation and no borne out of the evidence on record. Furthermore, PW4 stated that it is the people who were at the wedding who had helped with picking up the deceased who by then had been seriously injured and bleeding profusely and put him on a bench­ like chair made of sand/where the Police found him lying down when they arrived at the crime scene. It is curious indeed as I pointed out 15 earlier in this Judgment that,the many people who were at the wedding ceremony completely failed to give the suspect a chase and arrest him, who as it would seem ran away from,the crime scene with the murder weapon (the knife),otherwise it would not have been possible as the Police alleges, for the accused later on to lead the police to the place' where he is said to have hidden that knife, if he ever did. Let me nowturnto consider the evidence as to the unearthing of the murder weapon, the knife (Exhibit P2), which was admitted in evidence without any protest from the defence during the Preliminary Hearing. It was the testimony of PW2, E.5197 D/SgtJumathat, on 31.01.2011 he was assignedbylnspector Mbogo the murder case of Benjamin Simon @ Taifa who had been stabbed by a knife and rushed to SekouToure Hospital, where he later died while receiving treatment.PW2 stated further that it was Yusuph's parents who led the police to the house of one Mr. Deus at mid night (although he did not state the date), and that upon Yusuph's father knocking at the door, the Police entered inside and arrested Yusuph.When cross- examined by Mr. Kidando, the accused while testifying for the defence as DW1 stated that, the Police Officers who came to arrest him at his Aunt's housewere with his father who had shown the police to the place. PW2 told this Court that the accused was taken to the Nyakato Police Station where a File RB 653 was opened and that it is Yusuphwhosent to PW2the knife which it is alleged that he used to stab the deceased with. PW2 stated further that on 31.11.2011 -at 10:00hrs. he removed the accused from police lock up and started to record his 16 Cautioned Statement. PW2 stated further that the accused retrieved the knife from the house of a Pastor at MECCO where the accused had hidden it. That they picked the knife in front of the Pastor at 01:00 am and handed it to the CRO In charge and in turn it was handed over to the Exhibit keeper where PW2 picked it up and brought it to Court and tendered it in evidence. When he was; cross-examined by Mr. Outa learned Counsel for the defence, PW2 stated that while seated at the sitting room of Yusuph'sUncie one Deo Mathiasand Yusuph's father present as wel! as some other five police officers, PW2questioned the accused about the knife and that it is the accused who led the Police to the place where he had hidden it.PW2also stated that he knew that there was a weapon involved and wanted to get it as Exhibit. When asked a question by Court Assessor ConstantineLukoma, PW2 stated tha* there were six of them present when they were looking for the knife and that,it was Yusuphwho had picked it from outside the house in a waste water pipe where he had hidden it.PW3,Inspector Mbogowhen testifying in chief stated that the Police managed to get the knife that was used in committing the crime and that, when he asked the accused from where he got it, the accused told him that he had picked it from a chips dealer (sellerl)who had recognized the accused and added that the accused had stolen the knife from the chips seller who was going to be a witness in this case.However, when PW3 was cross-examined by Mr. Outa, he could not remember the name of the chips seller. When asked a question by Court AssessorAsma Said, PW3 stated that by the time the accused was brought to him, the knife was already with the Police.When cross-examined by Mr. Kidando, 17 DW1 denied ever showing the Police where he had hidden the knife with which he is accused of using to stab the deceased. On the evidence of PW2 and PW3there is clearly notable contradiction as to whether it is the accused himself who had handed over the knife to the Police or whether it is the accused who led the police to the place where he had hidden the knife and that it was retrieved from a waste water pipe. If indeed the knife was retrieved from outside a house and a Pastor witnessed its retrieval why didn't the Prosecution bring to Court this alleged Pastor, if ever he existed, to give independent evidence to corroborate what PW2 and PW3had stated with regard to the retrieval of the knife. The failure by the prosecution to bring such a crucial witness has not been explained and this Court is entitled to draw an adverse inference over such failure. Furthermore, the knife,which in my considered opinion was such a vital piece of evidence in this case, its retrieval and custody should have adhered to the strict requirementsof the law as to the preparation and production of a Certificate of Seizure,which was to have been signed by the accused, the alleged Pastor as witness, and the Investigating Police Officer. The legal consequence of failure by an investigator of a criminal case to issue a receipt or certificate of seizure of items or things seized during a search was succinctly explained by the Court of Appeal of Tanzania in the case of Abdaifa Musa and Juma Rashid v.TheRepubiic, Criminal Appeal No. 221 of 2011 (unreported), where the Court sitting at Mwanza stated at page 7 of its Judgment thus; 18 "The evidence that the boat engine was found in possession o f the 2nd appellant is also doubtful because no receipt o f seizure was'issued to show that it was found in the house o f the 2 h1 appellant. There was not even an independent witness who was called to witness the recovery o f the boat engine from the house o f the second appellant. Section 38(3) o f CAP.20 requires the officer making the seizure to issue a receipt for the property seized and person(s) from the house from where the property is seized to sign on the receipt. Short o f that receiptf the evidence o f the recovery o f the boat engine from the house o f the house o f the 2nd appellant becomes suspicious." Insisting on the mandatory requirement under 38(3) of the Criminal Procedure Act, Cap.20 R.E. 2002 for investigators to issue a receipt for anything seized as a result of a search, the Court of Appeal of Tanzania in its decision in the case of Abuhi Omari Abdaiiah and 3 Others vs. The Republic (unreported) sitting at Dar es Salaam stated at page 19 of its Judgment thus; "However,\ when arresting the appellants and seizing the money, the police had failed to comply with the mandatory provisions o f section 38(3) o f the CPA, by which investigators are required to issue a receipt for anything seized as a result. o f a search." Furthermore, as it would seem, in this case the chain of custody with regard to the handling of the knife from the time of its alleged retrieval from a waste water pipe near the house of the Pastor to 19 handing it over to theCRO In Chargeand in turn to the Exhibit keeper where PW2 picked it up and brought it to Court and finally its tendering in evidence should have adhered strictly to the standards set out in case law. Absence of such custody clearly the chain has been broken such that it has watered down the evidential weight to beartached to the knife as. a piece of evidence to establish the existence of the murder weapon. The legal requirement for Police Investigators to documenteach step involved in a search to the stage of exhibiting items or things seized in that search as a way of completing the "chain of custody'' was succinctly restated by the Court of Appeal of Tanzania in its decision in the case of MakoyeSamwei @ Kashinje and 4 Others v. The Republic, Criminal Appeal No. 32 of 2014 (unreported), where the Court sitting at Tabora stated that; "Thus, the "chain of custody" requires that from the moment a piece o f evidence is seized or collected, its every handling, custody or transfer must be documented up to the time o f its production in Court as an exhibit...Unfortunately, in the situation at hand, this salutary principle pertaining to criminal investigations was not heeded to." In the instant case, clearly the Police Investigators have totally failed to comply with the mandatory requirements under 38(3) of the Criminal Procedure Act, Cap.20 R.E. 2002 by not issuing a receipt or certificate of seizure for-the knife which they claim was seized during the search at the compound of the house of the alleged Pastor and not at the'-house of the accused. Consequently, the chain of custody from the moment the knife was unearthed from the waste water pipe, its 20 handling, custody or transfer up to the time of its production in Court has been broken. PW1 who as I-am made to understand was the one who was overseeing the search at the house of the alleged Pastor and collection of the knife completely failed to follow the legal procedures as expounded by the Court of Appeal of Tanzania in MakoyeSamwe! @ Kashinje and 4 Others vs. The RepublicCriminal Appeal No. 32 of 2014 (unreported). Furthermore, there is the mysterious disappearance of the alleged "chips seller" from whom it is alleged by PW3that the accused stole the knife. This "chips seller" was not' called by the prosecution to give independent evidence to corroboratethe evidence of PW3that, the accused stole the knife from a "chips seller." Let me now revisit the testimony of PW2, E.5197 D/SgtJuma with respect to the alleged two feuding groups of youths. In his testimony PW2 stated that, while seated at the sitting room of Deo Mathiaswhere they had been directed by Yusuph's parents, the accused told PW2 that on 28.01.2011while going to attend Tuition, he met agroup of rogue boys who beat him up using a piece of wood with nails, seriously wounding him.When cross-examined by Mr. Outa learned Counsel for the Defence, PW2 stated that, Yusuphhad lodged a complaint withthe Police Station as per RB of 28.01.2011. PW2 stated further that it is after he had checked the RB that he came to learn of the existenceof thetwo groups of youths who were fighting and chasing each other. PW2 stated further that he did not know if the deceased was dancing with a woman and there is no witness who stated that they were fighting over a girl and that he never questioned Edson.In his testimony PW3also talked of a fighting between two groups of boys essentially over bhang and girls, although % fighting over girls was not the cause of the crime. PW3 stated also that, the accused had planned for a revenge, that there were about two police cases, one in which the accused was the complainant. In his testimony as DWl,YusuphHamadiMagesa @ Babuustated that,on 28.01.2011at 02:00 p.m., which was a Friday he was attacked by a group of youths among whom there was PETER JOACHIM and ZUBERI while at NUNDU Primary Schoolwhere he had gone for evening classes (tuition) who used a piece of wood with nails seriously injuring him. D W i stated further that he reported the matter at the NyakatoPolice Station where he was given a PF3 given his condition so as to get treatment and was told to go back to the Station on Saturday at 02:00p.m., which he did.However, he was told that because the Investigator, one Abdallah who was handling his case wasnot present he was told to come back at 10:00p.m., at night and when he went there, a Police Officer came and introduced himself to him by the name of ABDALLAH. DW I stated further that his was no dealt with but on Sunday he was arrested and locked-upand found himself facing a murder charge.DWl stated further that having on that Sunday washed his new school uniform, his sibling by the name of DOTTO HAMAD came and told him that he had passed by the shopping Centre and there were some Police Officers who had come there enquiring about a person by the name of BABUU who is being accused of stabbing a person at a wedding ceremony{mkeshawaharusi) with a sharpobject.DWl stated that he spent the whole of that Sunday at home and having taken dinner at around 04:00p.m., his sibling came back again and told him that the Police had come back again asking for BABUU. DW1 stated that he decided to go to his Aunt's home at Mkuyuniwhere he was arrested by the police. On the evidence of both the prosecution witnesses, PW2 and PW3 and even of the defenceDWl, it is without dispute that there were groups of feuding youths. There is no evidence on record that the deceased and the accused were also members of rival groups and whether the deceased was among the group of rogue youths who had attacked the accused on the Friday of 28.01.2011at Nundu Primary Schoolso as to provide the basis for the motive of the accused entertaining the idea of hatching a revenge against his attackers. I have gone through the Cautioned Statementof the accused, (Exhibit P3). I have noted some similarity in the narration of events as a prelude to the eventful day of 29.01.2011 between what the Police Officers who testified during the trial stated with respect to the feuding youths and what the accused has stated and also about the accused going to reportto the NyakatoPolice Stationon 28.01.2011after having been attacked by a group of the rogue youths who invaded compounds of the Nundu Primary School where the accused had gone for tuition. Let me now make some comments on the opinion of the two Court Assessors who in their respective opinions found that on the evidence on record the prosecution had established its case against the accused. One of the Court Assessors, Asma Said, on her part she found the behavior of the accused after the event highly wanting. She wondered as to why did the accused, having reported to the police about being attacked by agroup of rogue youths, on a Sunday while washing his clothes upon being informed by his sibling about the Police looking for him, he decided to run away to hide at his Aunt's place. This shows that • the accused is guilty. The other Court Assessor, Martha Makuru correctly noted that in this case in the absence of direct evidence, the evidence was largely circumstantial. However, on her part she stated that, two matters have made herfind the accused guilty. In the first place, the fact of the accused voluntarily leading the police to where he had hidden the knife and the police having found it there. Secondly, the fact of the accused • pleading with this Court to be sympathetic on him, showing that he is feeling guilty. Thirdly, the fact of the deceased patting PW4on his back and pointing his finger at the person who had stabbed the deceased and ■ the accused running away from the crime scene and finally the accused himself confessing that there were groups of youths who had conflict. On the part of the remaining Court Assessor, Constantine Lukoma, he opined that for him the conflicting evidence of the prosecution witnesses as to the time in which the even happened as being 8-00 pm and another saying it was 23:45 hrs., has made it difficult to tell when the event occurred. Furthermore, of the four prosecution witnesses none confirmed that they sawYusuph stabbing the deceased with a knife, although PW4 claims that he was very close to the deceased on the eventful day, thus creating some doubts on the prosecution case. On the evidence on record and from the analysis I have made of such evidence, I am constrained to agree with the two Court Assessors who, after their respective opinions, returned a verdict of "Guilty" against the accused. I am in agreement with the Court Assessor who after his opinion returned a verdict of "Not Guilty"for the reasons I have 24 endeavoured to explain in this Judgment, which also constitute the reasons for me differing with the two Court Assessors. I wish to state here that in the present case, in the absence of direct evidence, the bulk of the evidence has been purely circumstantial. Much as the suspicious behavior of the accused after the event could be called to question, and particularly the act of the accused going to his Aunt's house on the evening of Sunday (30/01/2011) following the events of Saturday (29/01/2011) and particularly having been informed by his sibling about the Police looking for him; or the accused denying being at the wedding ceremony on the evening of 29/01/2.011 or knowing PW4; all of these circumstances are mere suspicion on which this Court cannot rely to found a conviction in a such a serious offence such as the one under consideration. The prosecution was required to bring concrete evidence to establish the various strings in the chain of circumstances such that when pieced together would form a complete whole to show that it is the accused before this Court and nobody else who is responsible for the death of the deceased. It is for the above reasons that I have differed with the opinions of the two Court Assessors and find that the prosecution has failed to establish the guilty of the accused beyond any reasonable doubts, which doubts are to be resolved in favour of the accused. In the whole and for the above reasons, the prosecution hasfailed to prove its case against the accused beyond any reasonable doubt. The case of the prosecution against the accused fails.lt is accordingly hereby dismissed in its entirety. 25 The accused, YusuphHamadiMagesa @ Babuuis hereby discharged from the offence of Murder c/s 196 and 197 of the Penal Code Cap. 16 of the Laws and is hereby acquitted. The accused person YusuphHamadiMagesa @ Babuushall immediately be released from the remand prison custody where he is being held and set at liberty forthwith unless he is being held there for some other lawful matters. It is so ordered. R.V. MAKARAMBA JUDGE 28/03/2018 26