republic vs enock anthony and another 2020 tzhc 4406 14 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KASULU ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 32 OF 2020 (P.I No. 1 Of 2019 in the District Court of Kasulu at Kasulu) THE REPUBLIC VERSUS 1. ENOCK S/O ANTHONY 2. ANTHONY S/O KINANILA .................................................... ACCUSED JUDGMENT 01/12/2020 & 14/12/2020 A. MATUMA, J. The accused persons herein, ENOCK S/O ANTONY, and ANTONY S/O KINANILA, stand charged of Murder contrary to sections 196 and 197 of the Penal Code (Cap. 16 R.E. 2002). They are all^ged to have murdered i one COSMAS S/O PASTORY on the 26th day of December, 2018 at Katundu village within Buhigwe District in Kigoma Region. It was further alleged that they stabbed to death the herein above-named deceased with a spear on the anterior chest left lateral lower to the sternum which PW7 Gabriel Ntibachunya the Asistant Medical Officer defined as "kifuani, upande wa kushoto, pembeni kidogo ya mfupa wa kidali". The alleged stabbing wound is said to have caused a penetrating wound leading to Hypovolemia or severe bleeding hence cardio­ respiratory failure and subsequently death. In criminal charges, it is the prosecution side which has the duty to prove the charges against an accused person beyond any reasonable doubts. It is not for the accused person to establish his innocence. This responsibility never shifts throughout. This being a Murder charge or case, the prosecution had a duty to prove beyond reasonable doubts the following elements: That, death was caused to the deceased person; that means 2 the alleged deceased person is indeed dead; That, the death was not natural; That, the death was caused by an unlawful act or omission; That, it were the accused persons who did the unlawful act or omission leading to death and, That, the death was caused with malice afore­ thought in the meaning that the accused intended to cause such death or grievous harm. The prosecution in discharging such duty of proving the herein elements of the offence beyond any reasonable doubts against the two accused persons lined up a total of seven witnesses namely; PW1 (Jenitha Kabetelo); PW2 (Upendo’Cosmas); PW3 (Otto Pastory); PW4 (Silvester Pastory); PW5 (E. 2904 CPL Omary Lukele Kisanzu); PW6 (E. 4320 D/CPL Mwaimu) and PW7 (Gabriel Ntibachunya). They also tendered several exhibits as shall soon be demonstrated herein below. The accused persons fended for themselves without calling,any witness nor tendering anyexhibit. 3 At the hearing of this case, the Republic/Complainant was represented by Mr. Robert Magige and M/S Edna Makala learned State Attorneys while the accused persons enjoyed the services of Mr. Sadiki Aliki learned Advocate. The summary facts of the case are that; on the material date and time the deceased Cosmas Pastory and his wife Jenitha Kabetero (PW1) were inside their house. Their daughter Upole Cosmas (PW2) was outside the house washing dishes (vyombo). The three heard some noises allegedly from the accused persons; "/eo ni mauaji, ieo ni mauaji, Leo kitaeieweka, kama ni kuuana tutauana, kama ni kuchomana vise tutachomana visu, ieo kitaeleweka, kama nikuuana tutauana". Soon the two accused persons arrived at the deceased's home. The deceased stood by the door to inquire what was going on but he was attacked and thrown down on his back (Akakamatwa na kulazwa chini, chali). He was then stabbed to death as herein above stated. PW1, PW2 and PW3 testified that they witnessed the accused persons committing the crime. PW1 stated that she was with the deceased at the time of the attack and stood together with the deceased when the attack took place in her presence. She even claimed to have attempted to rescue the deceased when the 2nd accused was seating on him but in vain; "Waiipomiaza chini niiisogea Kabisa nikajaribu kumvuta nikashindwa". PW2 also stated that the accused persons passed through her when she was washing dishes and got inside the deceased's home, the first accused pulled him (the deceased) out and stabbed him with a spear; "AHmtoa miangoni, akamvuta uani akamwangusha chini kwa nguvu na baba yake akamkaiia kwenye mapaja". The two witnesses testified that they raised an alarm for help and PW3 was the first neighbour to respond for their help. PW3 is the deceased's young sibling (mdogo wake) and he himself testified that he got the 5 persons still on the crime scene continuing to assault the deceased. He tried to interfere but the first accused took the spear off from the chest of the deceased (aliuchomoa mkuki kifuani mwa marehemu) and threatened him; "Na wewe unataka tukumalize?"We told them he was ready to be murdered as they have already murdered his brother. The three witnesses claimed to have clearly identified the two accused persons as they are familiar to each other, they are close neighbors for many years (22, 10 and 18 years respectively). They also explained the source of light and its intensity which helped them in their identification of the accused persons. They stated it was a solar light which was and still fixed on the wall of the deceased's house and that such light was of a solar bulb which was so bright to the extent that they could see even a passing snake. Each of the three witnesses claimed to have been so close to the attackers just three to four paces away and that there was no any impediment for 6 them to view clearly the commission of the crime which according to these witnesses took almost ten minutes under their observations. In trying to think out the motive behind the crime, PW1 further stated in her evidence that Prior to the crime the two families that of the accused persons and that of the deceased lived as relatives but later the accused persons started to lament that the deceased's family was boasting themselves of richness in that; ''sisinimatajiri tunajivuna". She however conceded during cross examination by the defense advocate Mr. Sadiki Aliki that there were some other neighbors rich than them but none of them had any conflict with the accused persons because of their richness. She further disclosed another grudge which existed between the two families. She explained that one Ezrom Kinanila who is the elder brother of the 2nd accused sold to her husband some trees as firewood for burning bricks. The trees were at the homestead of the 2nd accused which is stated to be a family compound and that such trees were planted by ttie said Ezrom. 7 That the accused persons were not happy and resisted any attempt to cut such trees and thus brought problems between her husband and the accused persons which necessitated them to convene a two families' meeting and the dispute was amicably resolved. That despite the resolution in the meeting Enock the 1st accused took a knife and attempted to assault the deceased but he was prevented by some people who were there. The three witness further elaborated the dressings of the accused persons at the crime scene to the effect that Anthony had dressed a trouser and a red vest locally being referred to as "singlendi". Enock had dressed a sweater with long sleeves (sweta la mikono mirefujand a trouser. PW4 on his party gave evidence to the effect that on the crime date and time he was at Shunga hospital nursing his father who was admitted. That the deceased who was still alive was brought to such hospital and he managed to speak to him although the deceased was speaking in difficult but managed to tell him that Enock Anthony and Anthony have assaulted 8 him and that it was Enock who stabbed him with the spear. 15 minutes later Cosmas died. PW5, E. 2904 CPL Omary Lukele Kisanzu the officer commanding station (OCS) of Katundu Police Post testified that on 26/12/2018 while at Katundu Police station around "saa tatu kasoro"\v\ the night came Anthony Kinanila the second accused reporting that "amefanyiwa fujo nyumbani kwake na familia ya Cosmas". That when the 2nd accused was going on giving his complaint the deceased Cosmas was brought seriously injured but still able to speak. He asked him what has befallen him and the deceased told him that he has been hit with a spear by Enock Anthony, in a company of his father Anthony Kinanila. He saw the wound and ordered Anthony Kinanila to be arrested anckput under arrest. 9 He then went to arrest Enock in a company of some citizens. That at the accused persons' residences met Enock's mother and his wife i.e. the wives of both accused persons. He asked them the where about Enock, they told him that they didn't know his whereabout. He then asked Enock' wife to show him the specific house of Enock on the compound. She shown him but it was locked by a padlock. He directed Enock's wife to open the padlock but she told him that she had no keys. He then suspected that someone might be in. He therefore broke the door and entered in. He got Enock the first accused "amesimama amejibanza kwenye ukuta chumbani mle ndani". PW6, E. 4320 D/CPL MWAIMU drew the sketch map of the crime scene (exhibit Pl) and participated in the Post Mortem Examination in which he saw or witnessed the decease's body "akiv/a na jeraha chini ya titi upande wa kushoto". 10 The last prosecution witness was PW7, GABRIEL NTIBACHUNYA. This is Assistant Medical Officer who examined the deceased's body and established the cause of death to be Hypovolemia/Severe bleeding. In his observation of the deceased's body the witness testified that he saw the wound "kifuani, upande wa kushoto, pembeni kidogo ya mfupa wa kidali"ax\ti that he did not notice any other wound. He tendered the Post Mortem Examination Report (exhibit P2). The accused persons in their respective defenses denied completely not only to commit the crime but even to have been on the crime scene that day. They stated that they were at their respective homes, took their supper and went to bed. DW1, Enock Anthony testified that on the material date 26/12/2018 at night between 20:00 hours and 21:00 hours he was at home asleep. He heard a door bang {kishindo kikubwa kwenye mlango wa nyumba) in which he was resting on bed. He then saw people entering inside while he was-on bed. li They were about six people who entered in the room. He identified one of those people to be a Police officer CPL Omary (PW5). He was then arrested and taken to Police where to his surprise found his father. Like the prosecution witnesses, DW1 admitted existence of a quarrel with the deceased due to trees which were allegedly sold to the deceased by his uncle (baba Mkubwa) but which he himself knew to belong to his father. That the deceased wanted to cut down those trees and they on their party resisted. He stated however that such dispute was amicably resolved in a joint meeting of the two families and claimed this case to have been fabricated against him perhaps on the alleged advance payments for the trees. "Naona wao baada ya u/e mgogoro kusu/uhishwa haukuwatoka moyoni". DW2, Anthony Kinanila who is also the father of the first accused in addition to his total denial of any involvement in the crime, testified that on the material time he was in his house asleep. He heard^big bang "kishindo 12 kikubwa kwenye mlango wa nyumba aiiyokuwa anaishi mwanangu". He opened the window and peeped out to see what was going on. He saw many people whom he did not know their number as it was dark night. He opened the back door and run to Police to report. He explained why he chose to run to police and not to neighbors that it was because from his home to Police it is not far, it is just a five minutes-walk. He testified further that, at police he met the OCS of Katundu Police Post CPL Omary (PW5) and gave his statement to him as to what he heard and saw at the house of his son but to his surprise his son the first accused was brought under arrest and he was also arrested. During cross examination he stated that he is a relative to the deceased explaining that; "Undungu wetu unakuja hivi; mume wa mama yake marehemu ni kaka yake na bibi yangu mzaa mama yangu mzazi". On the basis of the evidence on record as herein above reviewed, the lady and gentle assessors who sat with me M/S Sanyu James Kihurigtr and Mr. 13 Bathromeo Josephat Furugutu opined that the prosecution have proved their case beyond reasonable doubt and the accused persons were properly identified to have assaulted the deceased to death. Sanyu James Kihungu on her party was however of the opinion that since it was the first accused who was positively identified to inflict the stabbing wound which led to death, he be found guilty alone and his father the second accused be acquitted. There is no dispute that the deceased Cosmas Pastory is actually dead and that he faced a violent death. PW1, PW2, PW3, PW4, PW5, PW6 and PW7 all testified to have observed and witnessed the dead body of Cosmas Pastory with a penetrating wound on the anterior chest left lateral lower to the sternum which PW7 the Assistant Medical Officer defined as "kifuani, upande wa kushoto, pembeni kidogo ya mfupa wa kidali". According to PW7 the stated penetrating wound caused Hypovolemia or severe bleeding hence cardio-respiratory failure and subsequently death. Post Mortem Examination Report exhibit P2 is very"clear to that effect. 14 Therefore, there is no doubt that the prosecution has sufficiently/beyond reasonable doubts proved the death in question and that the same was not a natural death. Also, in the circumstances of the evidence of the prosecution as herein above reviewed, it is undisputed fact that whoever caused the death in question, caused it unlawfully and with malice aforethought. The only dispute therefore is on who killed the deceased. To the prosecution, it was the accused persons who brutally murdered Cosmas Pastory while to the defense, the accused persons are not in any way responsible for the alleged attack. As I have earlier on said, it is the prosecution side which retained the duty to prove the accused persons' guilty. All the accused had to do is just to raise reasonable doubts to the prosecution case. Out of the seven witnesses for the prosecution only three of them (PW1, PW2, and PW3) claimed to have been eye witnesses to the commi^siorrof 15 the crime and thus gave a direct oral evidence whose propriety is visual identification. Visual identification has always been taken to be the weakest sort of evidence as at times witnesses may with the honest belief mistake the identity of assailants. See WaziriAmani versus The Republic (1980) TLR 250. It has even been decided in a number of cases that even when the witness is purporting to recognize someone whom he knows, the Court should always be aware that mistakes in recognition of close relatives and friends are sometimes made. See Shamir John verus The Republic, criminal Appeal no 166 of 2004 (CAT at Mwanza). For visual identification to be the basis of conviction, more so in serious crime like the instant one of murder, such identification should eliminate all possibilities of mistaken identity and, the court should satisfy itself that the evidence is absolutely watertight. Evidence on conditions favoring a proper identification is of utmost importance. In the present matter, PW1, PW2, and PW3 testified that the accused persons were not strangers to them^th^y were very much 16 familiar, they are blood related and lived as adjacent neighbors for 22, 10 and 18 years respectively. The accused persons categorically admitted familiarity and neighborhood (ujirani) with the three witnesses for the prosecution. To authenticate familiarity DW2 for instance, during cross examination stated that the father of the deceased is the brother of his grandmother. That means the deceased was the uncle to DW2 and grandfather to DW1. DW1 and DW2 also stated that they prior to the incident at hand cooperated with the deceased in various activities. Therefore, there is no dispute that PW1, PW2 and PW3 and the accused persons knew each other very closely. The three witnesses stated that the source of light for their identification of the accused persons was a bright solar light and that they were close to the accused persons at the time of the attack just four paces distance. 17 They further explained that the attack was proceeded by some sort of conversations as herein above reflected and explained the role of each accused in the attack. The 1st and 2nd accused persons who claimed to have been at their respective homes and adjacent neighbors to the deceased's home who is also their relative did not dispute that the deceased used Solar light at his home which has been stated to have been always there fixed on the wall of the deceased's house. The fact that the deceased had always been using a bright solar light (a bulb) fixed on the wall outside his house prior to the crime and even to date is therefore undisputed. PW5 CPL Omary also gave evidence that he went at the crime scene the same night and saw such source of light (solar) which enabled him even to see the scattered blood on the crime spot. He thus corroborated the evidence of the three prosecution witnesses on the source of light and its intensity. Therefore, the fact that there was a bright solar light to enable the correct 18 view and correct identification go undisputed. The same is accordingly proved beyond reasonable doubts. The lay assessors unanimously observed that the identification of the accused persons by the three witnesses was not questionable. They thus opined that they were correctly identified. I agree with them on their finding in regard to the identification of the accused persons at the crime scene. In the case of Anuary Nangu and Kawawa Athumani versus The Republic, Criminal Appeal no. 109 of2006, there were similar facts to the case at hand. Only that in Anuary's case, the source of light was the bright moon light while in the instant case the source of light was a bright Solar light. The Court of appeal discussed the circumstances under which Anuary Nangu and Kawawa Athumani were identified. It stated; "The testimony of the complainant PW1 on the identifying circumstances was the time taken to commit the offence, which was long, there was 19 moonlight, the appellants lived in the same village and he had seen the appellants several times before. He was able to describe the types ” of clothes which each of the appellants wore when the incident took place." The court of appeal then concluded that such identifying circumstances or factors were favourable for the correct identification; "The conditions for identification in this case, as gathered from the evidence were favourable. The complainant knew the appellants before, they were staying in the same village and there was moonlight. He was also able to identify the types of clothes the appellants wore.... It took sometime before the offence was committed as the attack was proceeded by a conversation " In the instant case as I have already stated, the facts are identical to that of Anuary Nangu's case supra. PW1, PW2 and PW3 knew the accused persons prior the crime. They are relatives and adjacent neighbours. Before the attack there was some conversations between the attackers, the deceased and PW1. Also, there was conversations between the attackers and PW3 during the attack in which he was as well threatened to be killed by the first accused "nawewe unataka tukumalize". The crime was then 20 committed in ten minutes. There was bright solar light. The three witnesses described the dressings of the accused persons at the time of the attack. PW1 for instance explained that Anthony had dressed a trouser and singland/vest, but could not recall the colour. Enock had a sweater with long sleeves (sweta la mikono mirefu) and a trouser. PW2 on her party explained; "Enock alikuwa amevaa shati jamii ya sweta lenye mikono mirefu. Suruali iiikuwa rangi nyeusi, baba yake alikuwa amevaa singiendi nyekundu na suruali ambayo siikumbuki rangi". PW3 also during cross examination when the defense advocate tried to confuse him on the dressings of the accused persons by asking him as to who among the accused persons had wore a short (bukta) and who was on a bare chest (kifua wazi) as if there was evidence to that effect particularly when two witnesses had already testified before him. He confidently and firmly replied; 21 "It is not true that the accused wore shorts. Anthony wore a trouser. Anthony had a singland, nobody was 'kifua wazi'..... it is Anthony who wore the singiand/vest" That signifies that the witnesses properly saw the accused persons and their dressings at the time of the attack. They gave consistence evidence on the dressings of the accused persons at the time of the attack. All these circumstances have been held to be favourable for correct identification as herein above quoted. It has been decided in a number of cases that Favourable circumstances for unmistaken identity and the Fact that the accused is not stranger to the witness, it is sufficient to convict. See Eva SaHngo MT.6222421 PTE. Peter Magoti and MT.62218 Paschal Mgawe V. Republic (1995) TLR.220. The identification by the three witnesses of the prosecution has been corroborated by a number of factors. One, it is fron>PW4 and PW5. These 22 two witnesses testified before this court that they managed to talk to the deceased just minutes before his demise. The deceased told them at different times that he was attacked by the two accused persons and that it was Enock the first accused who speared him. This piece of evidence is exactly what PWl, PW2 and PW3 saw and identified the two in the attack and that it was the first accused who actually speared the deceased. Secondly, it is the act of the second accused to surrender to police in the disguised manner. It is undisputed fact that the second accused was arrested at Katundu Police Post after he himself went there. According to him he went to Police to report that some people have invaded his son's house. But according to PW5 the OCS who received the second accused at the station, the second accused reported to him that; "amefanyiwa fujo nyumbani kwake na familia ya Cosmas". Mr. Bathromeo Josephat Furugutu the gentle assessor opined that the second accused's act to report to police as stated by PW5 was somesort of 23 taking refuge (kujihami). I join hands with him. The second accused went to police as a shield to whatever report that might come later against him after he realized that what they did against Cosmas the deceased will ultimately reach to police. His averments that he went to police to report the invasion he saw to his son's house i.e the door bang cannot be accepted at all. This is because his son the first accused declared before this court that after the door bang and the same got broken in, it was PW5 who entered -in for his arrest. If at all the second accused went to report as he alleges, it is obvious he left PW5 at his compound to the house of his son at his own compound. If so, how did he then met PW5 at police when he reached there! Could PW5 be at those two different places (at police and at the compound of the 2nd accused) at the same time? It is impossible. I thus believe PW5 that the 2nd accused went to report what happened between him and the deceased as a shield but when things turned bad, it is when he decided to change the story. Thirdly, the act of the first accused to lock himself inside at the time of his arrest as stated by PW5. As testified by CPL Omary (PW5), when he went to arrest the first accused in the same night, he got him locked inside and his family purported to have not known his whereabout-until when he decided 24 to break in. Having broken the door, he found the first accused hiding himself; "amesimama amejibanza kwenye ukuta chumbani m/e ndani". The accused persons' conducts after the crime was inconsistent with their innocence. It dictated the guilty mind on their party. Fourthly, the prosecution witnesses mentioned or named the accused persons on the same very seconds after the crime and that is why they were arrested soon thereafter. The earlier naming of the suspect by the prosecution witnesses has always been regarded as an assurance of their reliability as it was held in the case of Marwa WangitiMwita andAnother v. Republic (2002) TLR 39. It was stated at page 43 of that case that:­ "... The ability of a witness to name a suspect at the earliest opportunity is an all- important assurance ofhis reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry..." 25 In the instant case, I do not find any reason why should the prosecution witnesses fabricate the accused persons at the same seconds or minute after the deceased's attack. The accused persons have tried to put forward the grudges which existed between the two families as being a causative which might have been used by the prosecution to fabricate them. I don't purchase that idea. To the contrary, I find the grudges as the motive behind the crime against the accused persons. The question is, should there be someone else who assaulted the deceased in the presence of PW1, PW2, and PW3, injured him to that extent but those witnesses deliberately decided to hide the real assailants and fabricate the accused persons? Common sense does not agree. There is no reason suggesting on record for the three witnesses to have deliberately hidden their real assailants and in lieu thereof fabricate the accused persons. I am inclined to believe the testimonies of not only the three witnesses but also that of PW4 and PW5 which cumulatively points a fipger of culpability 26 to the two accused persons. Principally, every witness is entitled to credence and have his evidence accepted unless there is good and cogent reasons for not believing the witness. See GoodluckKyando v. The Republic(2006) TLR363. The prosecution witnesses seemed to have inconsistent as to which party of the deceased's body did the second accused sat at the time of the attack. Two said it was on the thighs, one said it was on the legs (below the kneels) and one said it was on the buttocks. The one who said it was on the buttocks (PW4) did not witness the crime but was told. As to whether it was on the thighs or legs, I find it a minor contradiction which does not go to the root of the case. In the case of Dickson EUa Nsamba Shapwata and another v. Republic, criminal appeal no. 92 of2007it was held; "Normal contradictions and discrepancies are bound to occur in the testimonies of the witnesses due to normal errors or observation, or errors in memory . due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence " 27 The defense evidence as I have demonstrated herein above is nothing but a general denial. The same has not casted any reasonable doubt to the prosecution case. It has instead created doubts in its own. Thus for example; it is impossible for any reasonable man to see that his compound has been invaded as claimed by the 2nd accused, and yet escape silently crossing neighbors' houses, local authorities and without making any alarm for help, and go direct to police as if he had agreed with the assailants to await him without committing any bad until he comes with the police for their arrest. A reasonable man would raise an alarm to attract neighbors for quick help to suppress the attackers. Although he accounted for it stating that the police station was not far, I don't believe him. Another unusual conduct that shakes the defense case is the manner in which they prepared their defense. At first, they filed a notice of alibi to the effect that on the material time they were at their home with one Leticia D/O Kekenwa the wife of the second accused and the mother of the first accused. In the notice they intended to call her asjheir witness to support 28 them that on the alleged material date and time, they were together, took dinner/supper together and the 2nd accused got to bed with her. But after the closure of the prosecution case and the accused persons having been addressed their rights on defense, through their advocates informed this court that they will not call that witness because she has shifted from the village and all her family and they are not known their where about. Having in mind of the seriousness of the offence facing the accused persons, after they entered their respective defenses, I offered them an adjournment so that their witness can be traced under the assistance of the court to support their alibi but in a shocking manner each replied that such witness was not at home on the crime date thus contradicting their notice of alibi; DW1; "There is no need to call my mother Leticia Kekenwa because even on the crime date she was not at home" DW2; "Huyo ambaye aiikuwa mke wangu asitafutwe kabisa kwa sababu siku 29 The defense evidence is thus nothing but cooked stories which changes from time to time. It does not therefore shake the prosecution case anyhow as I have already stated herein above. Even though the conviction of the accused persons should not be borne out of the weakness of their defense but on the strength of the prosecution evidence. While my gentle assessor Bathromeo Josephat Furugutu was of the opinion that both accused persons are guilty of murder, the Lady assessor opined that since it was the first accused who was positively identified to have inflicted the stabbing wound which led to the death in question, he be convicted alone of murder but his father be acquitted despite the fact that she was satisfied that both accused persons were correctly identified at the crime scene. I join hands with the gentle assessor that both accused persons are guilty of the offence of murder and differ with the lady assessor on her finding that the second accused is not guilty of the offence. Thjs is because under section 30 22 (1) (b) of the Penal Code supra, the second accused is held liable for the stabbing wound which was inflicted by his son as he held the arms of the deceased to enable the first accused inflict the injury and he sat over the deceased to overcome him. They actually helped each other in the commission of the offence and therefore each liable for the acts done by his fellow as it was held in the case of Deogratias Nichoiaus @ JeshiAnd Joseph Mukwano versus Republic, CriminalAppeal no. 211 of2010, the Court of Appeal at Mwanza referring to the case of GodfreyJames Ihuya v R (1980) TLR IPZheld that: "To constitute a common intention to prosecute an unlawful purpose ... it is not necessary that there should have been any i concerted agreement between the accused persons prior to the attack of the so-called thief. Their common intention may be inferred from their presence, their actions, and the omission of any of them to dissociate himself from the assault." In the instant case each and every accused was active in the execution of their unlawful purpose i.e to assault the deceased. It doesn't matter who 31 inflicted which wound. The act of each constituted execution of the crime under common intention. The second accused is thus liable as well. For the reasons I have advanced herein above, on the strength of the prosecution evidence I find the accused persons Enock Anthony and Anthony Kinanila guilty of murder contrary to section 196 and 197 of the Penal Code, Court. Judgment delivered in the open court in the presence of the accused persons and their advocate Mr. Sadiki Aliki, and in the presence of Mr. Robert Magige and M/S Edna Makala learned State Attorneys. 14/12/2020 32 SENTENCE About the sentence both the learned State Attorneys and the defence Advocate had the observation that there is only one sentence under the Penal Code for a person convicted of the offence of Murder. I agree with them. As there is only one sentence against the person convicted of murder, under section 197 of the Penal Code Cap. 16 R.E. 2002, I sentence each of the accused persons, that is Enock Anthony and Anthony Kinanila to a death penalty and in accordance to section 322 (1) and (2) of the Criminal Procedure Act, Cap. 20 R.E. 2019 I direct that they shall each suffer death by hanging. It is so ordered. JUDGE 14/12/2020 Court. Sentence uttered to the convict persons Enock Anthony and Anthony Kinanila in their presence and their advocate Mr. Sadick Aliki and in the presence of Robert Magige and Edna Makala learned State Attorney. 33 A.-MATUMA, JUDGE 14/12/2020 Court; Under section 323 of the CPA supra the convicts are hereby inform of their right to Appeal that they have the right to appeal to the Court of Appeal of Tanzania against the conviction and sentence in this judgment and that the period available for them to lodge the notice of appeal is sixty days from the date of this Judgment. 34