republic vs sprianus so angelo others 2019 tzhc 1 20 september 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA DISTRICT REGISTRY) AT BUKOBA (ORIGINAL JURISDICTION) CRIMINAL SESSION CASE NO 27 OF 2017 THE REPUBLIC VERSUS 1. SPRIANUS S/O ANGELO 2. EDISIA W/O VENANT 3. GAUDIN S/O ANTHONY @ MUGANYIZI 4. ELIUD S/O WILLIAM 5. GAVUNA S/O MALCHIORY 6. EGIDIUS S/O BURCHARD 7. KENEDY S/O WILLIAM 8. ANTHONY S/O ANATORY 9. PHINIAS S/O SAULO @ KAPONDO..........................ACCUSED JUDGMENT 02/09/2019 & 20/09/2019 I. C. MUGETA, J The incident leading to this case involved a nineteen years old iady who, together with her mother, had to endure torture in a mob justice. The pains culminated with her witnessing the lynching of the mother on i allegation of witchcraft. The girl who is now aged tw enty two years is called Pelagia Fidelis. Her deceased mother was called Maliciana Gerald. As the due process dictates, she had to recount the ordeal when she testified in court as PW1. Adventina Gerald, a sister to the deceased, testified as PW2 and Desdery Chrisant testified as PW3. He is the "Kitongoji" Chairman at a place where the incident took place which is Nundu village, Kagoma Ward, Buleba District, Kagera Region. The deceased was killed on allegation that she had bewitched one Byera, a wife of Moses who is unde to the 3rd accused person. The killers, who believed the deceased is a witch, took the law into their hands and murdered her in a manner which can be described in no other fitting term than brutal. The facts, hereunder, testifies to this effect. It is this cold blood murder which has landed the accused persons before the court of law to answer a charge of murder c/s 196 of the Penal Code [Cap. 16 R.E 2002]. The incident took place on 20/6/2016 between 08:00 - 11:00 hours. This God given day dawned as a normal work day. Early in the morning, Pelagia (PW1), the deceased and one Dativa Fidelis, a member of the deceased's family who is dumb, went into the family "shamba" for farming. While thereat, according to PW1, there came the 1st accused and three others who are not in court as they are still at large. The first accused is called Sprianus Angelo. Those visitors forcefully took the deceased and her daughter (PW1) to the residence of Moses. Thereat, one Byera lay naked inside the house. She was requested to stand up by the first accused person and his team. She complied and, in her nakedness, started to attack the deceased and PW1 using a cooking spoon (mwiko). As she so did, she alleged that the deceased had bewitched her. Thereafter, the victims were dragged towards their residence while being beaten up by a mob led by the first accused person using sticks, fists and leg kicks. According to PW1, he (the first accused) cooperated with the 3rd, 4th, 5th, 7th and 9th accused persons. As a result, PW1 suffered injuries which cause pain in her chest to date. At the victims' residence, their kitchen was burnt and then the deceased was taken from the compound to the farm where she was burned to death. PW1 testified that it is the 6th and 9th accused persons who set the deceased on fire. The killers dispersed leaving PW1 alone staring at the dead, burned body of her mother! In that loneliness and in pain due to the attack, this young lady gathered the courage and strength to call, by cellphone, the "Kitongoji" Chairman. This is PW3, who also phoned the Ward Executive Officer to pass information of this tragedy. The two went to the scene of crime where PW1 mentioned some of the culprits. Those mentioned includes the 1st accused person. The rest managed to escape todate. Information was passed to the police and the Officer Commanding Police Station (OSC), whose name is not mentioned in evidence, visited the scene of crime. According to PW3, when the OCS arrived, PW i also mentioned the second accused person as one of the suspects. The 1st and 2nd accused persons were arrested immediately thereafter. The rest accused persons were already at large, they were arrested on later days almost a month after the incident. PW3 testified that he participated in arresting them together with police officers. He testified further that they were arrested after PW1 mentioned them to the police officers. The arrests included PW2 who stayed in custody for eight months before she was discharged and turned into a witness. PW1 testified on how she identified the culprits. She was clear in her evidence that she properly identified the assailants because the incident took place at day time, it took long time the parties being together and they are familiar with each other as fellow villagers, except for the 9th accused persons who live in another village. She stated that the 9th accused person lives at a different village called Butembo but she was familiar with him because she used to see him at the market place where he sells clothes. On the role each accused played, PW1 testified about events which can be classified into either a specific or general act of beating the victims. On specific acts, she stated that the first accused picked them from the farm, took them to Moses's residence were the fracas started and initiated the beatings while they were on way from Moses's to the victim's residence. This means among the accused persons he is the only one who participated from the beginning of the incident to the end. She was also clear that the 9th accused person, Phinias Paul @ Kapondo is the one who collaborated with the 6th accused person, one Egidius Burchard, to start the fire on the deceased. They used petrol and a bicycle tyre. In her evidence she referred to the 9th accused person as Kaponko. The rest accused person, she generally stated that they were involvement in beating and burning the deceased. On her part, PW2, who was initially a co-accused testified and identified in court the 5th, 7th and 8th accused persons. That she saw them at the scene of crime beating her sister. Then she referred to the rest of the accused person that she saw them at the scene of crime but she does not know their names. That she went to the scene of crime after being informed of the incident by a person whom she did not name. On arrival, she found the deceased and PW1 being beaten up. PW1 told her to leave the place lest her be included. On that advice, she left and went back to her home until when she was told her sister had been killed. Her evidence, however, makes two contrasting versions of the same story. In evidence in chief she said she saw the beatings session only but on cross examination, she testified on having witnessed the burning session too. The foregoing is the material evidence of the prosecution side. On the strength of this evidence, and upon submissions made by Emmanuel Kahigi, learned State Attorney and Seth Niyikiza, defence counsel, I ruled that all accused persons have a case to answer and called upon them to enter a defence in terms of section 293 of the Criminal Procedure Act [Cap. 20 R.E. 2002] (the CPA). The accused persons testified serially in the manner their names appear in the charge sheet starting with the first accused person. He denied any involvement on account of her health. He testified that he has health 5 challenges in that he cannot walk properly, therefore, he could not have managed to involve in the process narrated by the prosecution witnesses. Indeed, I observed him in court and noted that he walks with some difficulties. On cross examination he testified that his economic activity is fishing. The second accused person, Edisia Venant and the only lady on trial, admitted to have seen the deceased and her daughter (PW1) being attacked while at the residence of Moses. She is a wife of Venant who is a brother of Moses. At the incident time, she had stayed at Moses's for six months, therefore, she was familiar with the deceased and her daughter as they are neighbours. That she witnessed the assault but she never participated in it and none of the accused persons was involved. She challenged the evidence of PW1 that she (the 2nd accused) also beat and burned the deceased. That she never left with the assailants to the deceased's residence. She admitted to have gone there after the killing where she found Pelagia alone and that might be the reason Pelagia confused her with the assailants. The third accused person is Gaudin Antony. He testified that he is HIV victim who was too sick on the incident date to manage to go to the scene of crime even after hearing the yell there from. That he was told about the killing by mama Angelo while at their home with his mother. The evidence of the 4th accused, Eliud William, the 5th accused person, Gavuna Malchiory, the 6th accused person, Egidius Burchad, the 7th accused person, Kenedy William and the 8th accused person, Antony Anatory is ' 6 similar in nature. All of them raised a defence of alibi. While the 4th, 5th and 7th accused persons said at the material time each of them was in Lake Victoria Waters fishing, the 6th and 8th accused person said they were together at the residence of the 8th accused persons doing construction works. The 4th accused person attributes his arrest to personal vendetta for two reasons. Firstly, on his political inclination as a fervent CHADEMA follower against the wishes of PW3 and secondly, for dumping Pelagia as her lover, six months before the incident. The 5th accused person attributes his arrest with PW2 with whom he was not in good terms after he frustrated the proposal by PW2 to by land from his father. The 6th accused person attributes his arrest to political inclination too. Like the 4th accused person, he testified, he is a CHADEMA fan who caused one Lenatus Faida to lose the election in 2015 (he did not mention the contested post). The 6th accused testified further that the said Lenatus hatched hatred and promised to hit back. The 8th accused person too attributed his arrest to bad blood between him and PW2. He gave evidence to the effect that his cattle destroyed PW2’s crops and he was fined Tshs. 200,000/= but PW2 was dissatisfied. In his defence, the 9th accused person, who is a business man, admitted to have been at the scene of crime. He went there in response to a call by manna Joa who had requested him to go and collect the money she owed him after she bought supplies from him. On arrival she found a multitude of people, estimated at one hundred and the deceased having been killed. He testified further that, thereat he found three men holding hostage a girl, beating her on allegation of witch craft. He tried to stop them but the angry mob was about to beat him so he left after he hadtold the girl to run away in order to save her life. That he never identified the killers because all of them were strangers but no one of the accused persons was at the scene of crime. It is my settled view that the foregoing is the material facts of the case. In summing up to assessors, I directed them on matters of facts and law. On facts, I informed them that there is no dispute that the deceased died unnatural death. Her death was a result of continued assault and burning, therefore, this is a murder case committed with malice aforethought. I further told them that the only disputed factis whether it is the accused person who perpetrated the murder. To answer this issue in the affirmative, I direct them on the law governing identification, particularly visual identification which is at issue in this case. That visual identification is the weakest form of identification which can only be acted upon where all possibilities of a mistaken identification are eliminated. That a correct identification considers the incident time (whether it was night or day time), the form and intensity of light that could guarantee a proper identification, the time the parties spent together and their familiarity before the incident. I further informed the gentleman and ladies accessors that the material evidence in this case as far as identification is concerned is that of PW1 and PW2. That save for the 9th accused person, PW1, PW2 and the rest of the accused persons were familiar with each other as fellow villagers. That the incident occurred during day time and it lasted for 8 approximately three hours and PW1 was involved closely from the beginning to the end. I informed the gentleman and ladies accessors about the value of the defence of alibi raised by the 3rd, 4th, 5th, 6 , 7 and 8 accused persons. That legally, in terms of section 194 (4), (5) and (6) of the CPA a defence of alibi starts with giving notice and particulars of alibi to the prosecution which they never did. This notwithstanding/ the practice is that once this defence is raised, it cannot be completely ignored. Upon inviting the accessors7opinion, they unanimously entered a not guilty verdict for the following reasons: Firstly, that the evidence of PW1 and PW2 has contradictions on material facts. These are that PW1 said she was alone during the incident while PW2 said she was also there. That PW1 said she was also burned but only one person was burned. Secondly, PW1 testified that she is familiar with all accused persons but in her dock identification she failed to identify the 5th accused person. Thirdly, the direct evidence comes from relatives only. There is no direct evidence from independent witnesses despite the fact that the incident occurred at day time and was attended by many people. Further that, even after seeing the deceased in danger, PW2 made no efforts to report the incident to the police. Fourthly, that there is a possibility that both PW1 and PW2 were not at the scene of crime, that is why they gave contradictory evidence or that they did not see the assailant because PW2 arrived and left while PW1 ran away and hid behind the house when her mother was being burned. I hold different view and I, respectfully, beg to differ with the gentleman and ladies accessors' opinion. I have humbly and honourably reviewed and 9 analysed the evidence on record, I am satisfied that the gentleman and ladies accessors misapprehended the evidence on record. Consequently, they have erred in conclusion. To start with, are there material contradictions in the prosecution's evidence? The law is now settled that were there are contradictions in evidence, it is upon the court to resolve them and decide if they are minor or major and their effect on material facts in issue. The first contradiction pointed out concerns PW1 and PW2 involvement in the incident. I see no contradictions at all. The evidence of PW1 was specific as to who were the victims and who perpetrated the crime. Indeed, she never mentioned PW2 to have come to the scene of crime in her evidence. PW2 also was specific on how she was involved and how she identified the criminals. In law when a witness says what another witness did not talk about regarding same incident, that does not amount to contradictions. Such lapses, depending of facts of each case and a particular fact in issue, can be used to assess credibility of witnesses not to contradict them. Therefore, it is not right to conclude that by PW1 not saying PW2 also came at the scene of crime, a fact which PW2 stated, amounts to a contradiction. The issue before the court is who committed the crime and not who attended at the scene of crime. On the burning, the only relevant evidence is that of PW1. Once again, her evidence is not contradicting as to who was burnt. Her evidence on this fact is double edged, firstly, that her mother was burned to death and secondly, that she was burned and sustained injuries but she survived. On 10 her agonizing experience this is what she said on cross examination by counsel for the accused persons: - "I accompanied my mother in all the processes to her death. I was also burned on my left side ribs part and on thighs. They used melted plastic jerry can pieces to drop fire on me. I have burn scars up to now" Indeed, therefore, two people were burned. One survived and one died. This evidence, when viewed as whole, does not make or creates any contradictions. It is misapprehension of evidence to conclude that only one person was burned. Did PW1 fall to identify the 5th accused person in court? As reflected in the proceedings, PW1 identified the accused persons in the dock backwards from the ninth to the first accused person. In the process she skipped the fifth accused person. After she had testified, one of the accessors put to her the following question: - Question - You have identified all the accused persons in the dock except the 51" accused person. What was his role in relation to this case? The answer which is reflected In the proceedings goes thus: - Answer - "If I have skipped the fifth accused person herein court during my identification of the culprits that was an oversight. He was also present". 11 I am certain in my mind that PW1 is a truthful witness. I agree wit er that the skip was an oversight. This single incident of a human error cannot, by itself alone, water down all what PW1 testified regarding the incident leading to this case. On witnesses being relatives, I know no rule of practice, evidence or procedure which bars or requires that evidence of relatives or people of the same family should be corroborated by independent evidence to make it credible. Further, the assertion by one of the accessors that PW2 never reported the incident to the police is completely unjustified. There is no evidence at all on the distance there is from Nundu to the nearest police station to warrant the blame. This notwithstanding, it is not true that PW2 made no efforts. This is what PW2 testified on cross examination when asked how she tried to help to save her sister: - "I did not try to call anyone after seeing the incident because my cellphone had no credit. ... I did not report to the village chairman because he was not around. Some other people had tried to reach him by phone but he was not reachable" This evidence is true as it is corroborated by PW3 who testified that the Village Chairman was in Karagwe on that date. PW3 was responding to a question by one of the accessors. The gentleman and ladies accessors are of the conclusion that due to contradictions in the evidence of PW1 and PW2, there is a possibility that 12 one or both of them were not at the scene of crime. This conclusion is not supported by facts in evidence on record. I have already held, there is no material contradictions in their evidence, therefore, this argument is not worth addressing. The last part of the accessors' opinion is that, it is likely that PW1 and PW2 did not see the assailant because PW2 arrived and left while PW1 ran away and hid behind the house when her mother was being burned. There is no merit in this allegation. PW2 testified that on arrival at the scene of crime, PW1 requested her to leave to avoid her being beaten together with them. PW1 testified that when her mother was burned, the 9th accused person ordered her to run away and she complied by just rounding up their house and got back to her burning mother. There is nothing in this evidence which suggest or creates conditions that could bar either PW1 or PW2 to identify the assailants. The testimony of PW1 on being told to ran away by the 9th accused person is even supported by the 9th accused person himself. In his defence he stated: - "... she also said I told her to run away. I wanted to save her". From the foregoing, I am certain in my mind that both PW1 and PW2 were at the scene of crime. While PW2 arrived and left, PW1 was present all the time. Having settled with the accessors' opinion and having given reasons as to why I have to differ with their opinion, I now move to analyzing the 13 evidence on record to decide if the offence has been proved beyond reasonable doubts. I have held that this case wholly hinges on identification of the culprits. To decide if each accused person was correctly identified I shall analyse the prosecution evidence in relation to the defence of each accused person. Before I do that, I find it proper to state some of the undisputed facts: - 1. The incident took place at day time 2. At the incident time, the Prosecution witnesses and the accused persons, save for the 9th accused person, lived in the same village, therefore, familiar with each other. 3. The incident lasted for about three hours. To start with, let me make it clear at the outset that I shall accord very little weight to the evidence of PW2 for one major reason. She was a co­ suspect who spent eight months behind the bar and no explanation has been offered as to why she had been charged besides being a sister of the deceased. On cross examination she said the police arrested her after they failed to get a young man she lived with who, allegedly, was also involved in the murder. It might be true which is an indicator of reckless and irresponsible investigation processes. However, this does not absolve her evidence from being suspect anyways as evidence of a person with interest to serve. This leaves PW1 as our only star prosecution witness. Save for the arresting of the suspects, the evidence of PW3 is hearsay. 14 In her evidence she said she Identified all the accused persons as having participated to beat and to finally burn her mother. She identified all of them in the dock save for the fifth accused person and stated the role each one of them prayed. No identification parade was held and I think unde the circumstances of this case not one was desirable. The first accused dismisses the allegation against him because of his body weakness in that he can neither run nor walk quickly and that she was in that state of affair before the incident date. I have no reason to doubt his evidence as the prosecution gave no evidence as to his health condition before the incident. In her own words, the first accused person testified that he does fishing to earn a living. This proves that besides his general legs weakness he walks whatever the speed. PW1 testified that the first accused person was among those who picked them from the shamba. That he beat and finally burned the deceased. Here the question of speed at which events took place is irrelevant. What matters is that the 1st accused person can walk and whether he was properly identified. I have no reason to doubt PW1 as I find no reasons as to why she should try to fix or lie against the first accused person. The incident started at around 08:00 hours, PW1 is familiar with the first accused person as they lived as neighbours. Further, they spent together a long period of time as her deceased mother was being crucified and PW1 named the 1st accused person to PW3 immediately after the incident which led to his immediate arrest. I hold that he was properly identified as the conditions surrounding the incident leaves no possibility of a mistaken identity. I reject the defence of the first accused that he was not involved for disability as raising no reasonable doubts in the prosecution's case. Like the first accused person, the second accused person was arrested immediately after the incident. PW1 mentioned her to the police who came to the scene of crime per the evidence of PW3. However, in her evidence in chief, PW1 did not state when, where and how the second accused person attacked them. Unlike her evidence regarding other accused persons, it was at the dock identification when she said generally that the second accused person also beat and burned the deceased. This information lacks in P W l's evidence in chief regarding the incident. In her defence, the second accused firmly denied the allegation. She admitted her presence at Moses's residence where she lived at the incident time and to have witnessed the assault thereat. That she never moved with the assailants to the residence of the deceased where she was finally burned to death. This evidence raises a reasonable doubt in the prosecution's case on whether the second accused person was involved in the actual attack. On this account, I find the second accused person not guilty. Before I consider defence of the rest accused person, let me discuss some stuff on the chain of events that led to the murder of the deceased. This is important as far as proper identification is concerned. The death of the deceased involved four stages. Firstly, being taken from the "shamba" to Moses's residence which process involved the first accused and others not charged. Secondly, at Moses's where Byera and others not mentioned beat the deceased and labeled her a witch. Thirdly, on the way to the deceased 16 home where the first accused cut a stick from a "mhumla" tree (a Haya name) and started to beat the deceased in collaboration with Gaudin (3rd accused), Eliud (4th accused), Gavuna (5th accused), Kenedy (7th accused) and Kapondo (9th accused). Fourthly, at the decesed's residence where fire was lit in the kitchen, Egidius and Kapondo took petrol and finally burned the deceased. On the burning, those mentioned by PW1 to have been directly involved are Egidius and Kapondo. Back to the defence of the accused persons. The third accused person denied involvement because he was sick at home. In her evidence PW1 referred to him as Gaudioza. PW1 testified that he joined the first accused person to beat them with "mhumula" while on way from Moses's to the deceased's residence. This is a specific incident which can only be performed at a closer range and guaranteed a correct identification. The alibi of the 3rd accused person not only was raised at defence, but it is also unsupported. I understand an alibi does not necessarily need support to be believed. I further understand it is not upon the 3rd accused to prove his innocence. His duty is to raise a reasonable doubt in the prosecution's case. Considering the evidence as a whole and the circumstances of the case and the fact that I have held that PW1 is a credible witness, I hold a firm view that this defence is an afterthought. It does not raise any reasonable doubts in the prosecution's case. For clarity and brevit, I shall discuss the defence of the 4th, 5th and 7th accused persons together. This is because their involvement feature at the same phase and their defence is also similar. PW1 testified that they beat 17 her and the deceased at the third phase or stage while on way to the deceased's residence. This followed the first accused person preparation of the "mhumla" sticks. They also punched and kicked randomly the victims. All the 4th, 5th and 7th accused persons denied involvement because at the time of the incident they were fishing in the lake. Like the 3rd accused person, their alibi was raised at defence stage without notice. From the narration of PW1,1 am not convinced that she could have mistaken them. The 4th accused person testified arraying her fear of being fixed for dumping PW1 as her lover and for being a member of the opposition party. That PW3 used to complain about young men's reluctance to vote for CCM so he might have fixed them. These two lines of defence might be possible but considering the evidence on record, they remain highly improbable. Firstly, PW3 was clear in his evidence that except for the arrest process, the whole of his evidence is hearsay and he never attributed anyone with the murder as he saw no one committing this offence. Let his own words during cross examination speak for him. He testified: - "I have not mentioned anyone as having been involved because I did not see any of them committing the crime" In his evidence in chief PW3 had given the following evidence which referred to the arrest process and the fact that there are other suspects mentioned by PW1 who are still at large: - "The other suspects are not herein court. The rest accused persons other than the 1st and 2nd accused persons were arrested as Alinda mentioned them to the police. ... They 18 were arrested on 16/7/2016. I participated in arresting them on the instructions of police officers." In her evidence, PW1 testified that Alinda is her other name. In view of this evidence the idea that the 4th accused person was fixed by PW3 for whatever reason is far-fetched. Did PW1 fix him for dumping her? It is unfortunate that the 4th accused never raised or put this issue to PW1 on cross examination. Without giving the other side the opportunity to express its views on this allegation, it is least expected to be held that it raises any doubt in the prosecution s case. I consider it to be an after thought due to the stage at which the suggestion was made, at defence during cross examination. By so stating, I am not establishing a principle that new evidence at cross examination should be disregarded. Not at all. Each evidence ought to be considered on the facts of each case. In our case, this suggestion ought to have been put to PW1 to hear her views. This is a sure way to guard against fabrication of evidence, to result into courts acting on lies. In the final analysis, I hold that the defence of the 4th accused person does not raise any reasonable doubt in the prosecution's case. On his part, the 5th accused person believes he was arrested at the instigation of PW2 after she was discharged because they had bad blood. However, the record of trial from committal proceedings is clear that when PW2 was discharged, the 5th accused person had long been arrested. PW2 was discharged by "nolle prosequi" on 2/2/2017 while the 5th accused 19 person was charged since 24/6/2016. His alibi is rejected because there is no possibility that PW1 mistook him. The 7th accused person was a minor when he, allegedly, committed the offence. When trial commenced, he had attained the age of majority. The issue arose whether he enjoyed the child rights under section 99 (1) of the Law of the Child Act, 2009. Both this law and the regulation made thereunder (the Juvenile Court Rules) are silent on the right of a child when tried in a court other than the Juvenile Court. Having considered the scheme of protection of a child under the state laws, I ruled that the rights therein are not available to a child whose trial, in court other than juvenile Court, commences after attaining the age of majority. The rights under section 99 in such courts are exercisable at that court's discretion. However, where the trial is in a juvenile court, those rights are non- negotiable regardless of the age of the accused person at the time of trial. On this account the 7th accused person was tried in the absence of a Social Welfare Office but he had a legal aid, "pro bond'. In his defence he relied on a defence of alibi that at the time of the incident he was in the lake fishing. For the same reason that PW1 could not have mistaken him, I reject his alibi.The defence of the 6th and 8th accused persons also shall be considered jointly due to its nature and similarity. Both testified that at the incident time they were together at the residence of the 8th accused person doing construction works. The 6th accused is of the view that he was arrested on political grounds as opposition party member who in 2015 General Election was instrumental in defeating Lenatus Faida, a CCM 20 member. However, there is no evidence either from the prosecution or defence that shows or suggests the role played by the said Lenatus in arresting and prosecuting the 6th accused person. This renders such a defence useless. To the contrary, PW1 mentioned him as having beaten them up while on way from Moses's residence and later lit fire on the deceased using petrol and a bicycle tyre. This evidence leaves no room for a mistaken identification. The 8th accused person testified that on the incident date while at his home together with the 6th accused person, he received a phone call from Said Idd who informed him about the murder. Further, that despite the information and residing in same village, he never told the 6th accused person nor went to the scene of crime. That after he got the information, he traveled to Muleba to buy cement for his construction work. He believes, PW2 might have instigated the arrest because they are not in good terms. However, there is no evidence that his arrest was at the incidence of the PW2. It is incredible that one can receive news of murder of a fellow villager and refrain from telling those with him at that particular moment especially when they are fellow villagers. In the midst of this untrustworth evidence of the 8th accused, PW1 was clear that the 8th accused beat them while on way from Moses's residence. This evidence of PW1 is true. I hereby reject the alibi and hold that the 8th accused person was involved and he was properly identified. He is guilty as charged. Lastly, the defence of the 9th accused person. He admitted to have been at the scene of crime but he neither beat nor burned anyone. According to 21 PW1, the 9th and the 6th accused persons are the ones who set the deceased on fire. By any standard, this was a crucial moment to PW1 as victim and observer of the last part of the ordeal: The killing of his mother. As she was familiar with the people who did it at day time, I have no reason to doubt her Identification of the 9th accused person as one of the criminals. He is guilty as charged. Before I conclude, let me address one legal aspect. In matters of identification, mentioning of the suspect at the earliest is key on credibility of the identifying witness. PW3 testified that on his arrival at the scene of crime PW1 mentioned to him the culprit as the l 9, 2nd and other accused persons who have not been arrest. His list does not include the 3 - 9 arrncgH persons. He testified that those other accuseds she mentioned them later, not to him, but to the Police. Does this shake P W ls identification reliability in respect of the 3rd - 9th accused persons? I have given thought to this issue in line with what PW1 went through, I am of the view that immediately after the incident she must have been in a state of confusion and panic. The evidence is that there were many people at the incident. PW1 testified that they were about 17, PW2 said about 30 and DW9 said they were more than 100. Whatever the case, I am made to believe that the incident attracted many people. In her evidence PW1 ,3 ^ that the villagers were divided. Some came, watched and left while others joined the assault. In the state humiliation and the pain for witnessing brutal murder of a mother, PW1 needed time to calm down to do a proper recollection of who did what at the incident. 22 rd th I understand there is no evidence as to when PW1 mentioned the 3r - 9 accused person to the Police. It can be argued that it might be after a long time because it took about a month to have the suspects arrested. But it is dangerous to relate the identification with the delayed arrest because there is evidence that after the incident people disserted the village. PW1 testified that after the murder they dispersed leaving her alone. The second accused supported her. She testified that when she went at the scene of crime after the murder, she found PW1 alone. PW3 testified that people ran away after the incident to avoid arrests. The 7th accused person testified that when he went home he found his mother in hiding fearing arrest. This means the situation at the village was no longer at ease. I, therefore, hold that despite this gap in evidence of the prosecution, there existed conditions which favoured a correct identification. I see no reason why PW1 could lie against any of the accused person. In the event, I hold that the prosecution side has failed to prove a case against the 2nd accused person beyond reasonable doubts. I, hereby, acquit her. The rest of the accused persons are found guilty and they are convicted of murder as charged contrary to section 196 of the Penal Code. Delivered in court at Bukoba this the 20th day of September 2019. I. C. MUGETA JUDGE 20/09/2019 23 SENTENCE The 7th accused person was a minor when he committed this offence. He has been in custody since 2016. This is enough a punishment. I hereby discharge him without any order. The 1st, 3rd, 4th, 5th, 6th, 8th and 9* accused persons are hereby sentenced to suffer death by hanging. Sgd: I. C. MUGETA JUDGE 20/09/2019 Order - Right of appeal fully explained. - Accessors are thanked and discharged. Sgd: I. C. MUGETA JUDGE 20/09/2019 24