republic vs deograsias jackobo msemwa 2020 tzhc 188 6 february 2020

IN THE HIGH COURT OF TANZANIA AT SONGEA (ORIGINAL JURISDICTION) (SONGEA REGISTRY) CRIMINAL SESSIONS CASE NO. 12 OF 2018 THE REPUBLIC VERSUS DEOGRASIAS JACKOBO MSEMWA JUDGMENT Date of Last Order: 22/11/2019 Date of Judgment: 06/02/2020 BEFORE: S. C. MOSHI. J: The accused person Deograsias Jackobo Msemwa was arraigned before this court on a murder charge contrary to section 196 of th*e* Penal Code [Cap. 16 Revised Edition 2002], lt-is alleged that on 19th March, 2017 at Muungano Zomba village within Songea Rural District in Ruvuma Region the accused person did murder Shorastika Nungu. The accused person denied the charges. i During the trial I sat with three assessors, Theopista Bisaki, Christian Komba and Hamis Mkilima. The Republic was represented by Emmanuel Barigila, State Attorney who was assisted by Frank Chonja, who is also a State Attorney. On the other hand, the accused person was represented by Edmund Mnyawami, and Merkior Mpangala who are both private advocates. I have at the outset endeavoured to present the definition of murder as it is in the statute and in a legal dictionary. Murder is said to be committed when an accused person kills another with intention to cause death or grievous harm to a person whether such person is the person actually killed or not or acting with knowledge that the act or omission causing death will probably cause the death or grievous harm or an intention to commit the offence (see section 200 of the Penal Code (Supra). Similar definition is given in Osborn’s Concise Law Dictionary to be the crime of unlawful homicide with malice aforethought; as where death is caused by unlawful act done with intention to cause death or grievous boldly harm, or which is commonly known to be likely to cause boldly harm (Eighth Edition, published in London by SWEET & MAXWELL, 1993). As far as criminal case (s) are concerned, the burden is on the prosecution side to prove its case in two folds first, that a criminal act or offence was committed (or omitted), and second, that it is the accused who committed ( or omitted) an act. The proof is beyond reasonable doubt and it never shifts to the accused person. On the other hand, an accused is only required to case a reasonable doubt. See the case of Jonas Nkize V Republic (1992) TLR page 2 1 3 -2 1 4 (HC) where it was held that:- “The general rule in Criminal Prosecution that the onus of proving the charge against the accused beyong reasonable doubt lies on the prosecution....” Similarly in the case of Christian s/o Kaale and Rwekiza s/o Bernard Vs R [1992] TLR 302 where the court held that:- “an accused ought to be convicted on the strength of the prosecution case” In the case at hand, it is common ground that Shorastika Nungu met unnatural death. The evidence of PW10, the doctor and the post mortem examination report confirms that she is indeed dead. The doctor certified that death was due to strangulation of air ways and external bleeding. He observed puffiness of face and bleeding from the mouth, ear and nose and soft neck. The accused denied the charge hence a full trial was conducted. The matter started as a missing person case. The deceased Shorastika Nungu was living with her husband, Regnato Mapunda at Muungano Zomba Village. The deceased was last seen at her home on 19/03/2017 at 6.00 pm. The husband Regnato Mapunda looked for the deceased at her parent’s home and at his brother in law’s home; at one Elhad Nungu’s home but in vain. It was decided that the search for the deceased would continue in the morning. On 20/3/2017 at 7.00 am Elhad Nungu and Regnato Mapunda reported the matter to PW2, the village Executive office. Villagers were involved and a search for the deceased was mounted. The search did not take long, the deceased's body was recovered at around 8.00 am in a bush near her own home. The accused person who was deceased's lover was prime suspect of the murder because the witnesses who went to the crime scene saw an exercise book which was put on the deceased’s body which had a text implying that the accused had confessed to have killed the deceased. The crime was reported to the police, hence the present charge. Evidently, there is no eye witness testimony or direct evidence to the murdering of the deceased. The prosecution connected the accused to the murder basing on the confession evidence, a note book which was found on top of the deceased's body whose contents tend to show that the accused confessed to have killed the deceased. Likewise, another piece of evidence implicating the accused involves two accused persons’ confessions which were made to the justice of peace and to the police officer respectively. Therefore the said confessions are the heart of prosecution’s evidence. Hearing of the case commenced and both parties were given opportunity to present their respective evidence. The prosecution side had ten (10) witnesses and their evidence was inter alia as follows: - Briefly, PW1: INSPECTOR JORAM MAGOVA, stated that, he is a police officer, he works with RCO's office at Mbeya, questioned documents examination office section. He is a hand writing examination expert. On 9/11/2017 in the morning while in his office he was approached by DC 777 WP KULWA from RCO’s office Ruvuma. WP Kulwa handed him a letter from Ruvuma's RCO. The letter was accompanied with documents which were in a sealed envelope. He was requested to examine the documents. He opened the envelope; it contained some documents which included:- - A small exercise book; it's a disputed document which was marked as ‘A ’. - Five specimen papers which were marked B.l - B.5. i.e. B .l, B.2, B.3, B.4 and B.5. He was required to compare the similarities and distinctions between ‘A ’ and B.l - B.5. The disputed document had no name of the writer but the specimen had the name of the person who wrote them. He examined the documents. After examination he prepared a report and some clarifying documents and photographic enlargements which shows the items which were examined and the observations. After completing, he handed the report and the exhibits to DC KULWA [The disputed document, i.e. the exercise book was admitted as Exhibit P .l, the specimen handwritings B .l, B.2, B.3, B.4 and B.5 were admitted and marked as Exhibit P.2 collectively and the document examination report together with the photographic enlargements; Exhibit P.3], c During cross examination he said that, the exercise book [Exh. P .l] had pages which were pinned with staples. He did not know who added the loose paper to the exercise book. There are other written pages in exhibit P .l. He did not know why they asked him to examine the handwriting that is in the middle of the exercise book (exhibit P . l) only. It was his opinion that, the writer of disputed document is also the writer of B.l - B.5. PW2: PULKELIA FLORIAN MALEKELA, is a village Executive Officer (VEO). On 20/3/2017 She was living at Muungano Zomba, Mbampano Hamlet, she was VEO of that area. On 20/3/2017 at 7.00 am she was at her home preparing to go to the office. While there Elhad Nungu and Regnato Mapunda came and informed her that Regnato Mapunda’s wife, Shorastika Nungu had disappeared from home since 19/3/2017 at 6.00 pm. They told her that the deceased was at home cooking, however she later left home and asked the children to continue cooking. They told her that Shorastika didn’t come back home since then. Regnato told her that he had gone to watch football at a nearby village but when he came back he did not find his wife at home. She asked them to go to the office with her, she recorded their statements and asked the Hamlet Chairman to mobilize the people to look for Shorastika. They looked for her. Later, the two i.e Elhad Nungu and Regnato Mapunda came again to her office at 8.00 am. They reported that they had seen Shorastika but she was deceased. She accompanied them and went to the crime scene. Upon getting at the scene they saw Shorastika’s body. The body was lying on the ground; she was lying on her back facing up (amelala chali). On top of the body there was a small exercise book. She also saw a piece of kitenge tied around the deceasd's neck, it was tightly tied and it had three knots. She collected the book; on the top cover it was wirtten Deo Msemwa. She opened the exercise book. She read the contents of the book. It was written thus, "Mimi Deo Msemwa na Shorastika Nungu hawala yangu miaka nane. Mwenzangu amenizingizia mimi nimechoma banda, nimeiba mbuzi, nimetia sumu kwenye kisima mambo ambayo siyo ya kweli. Ametoa siri kwa mume wake kwamba nimezaa naye mtoto jambo ambalo sio kweli. Mimi kwa hiyari yetu tumeamua kujiua mapenzi yetu yasiwabugudhi watu wengine. Mali zangu namkabidhi mke wangu”. She left the exercise book on the body. She asked the militiamen to guard the deceased’s body. She went to the office together with Regnato Mapunda and Elhad Nungu. She wrote a letter to the police informing them of the incident. She handed the letter to them to take it to the police. She stated further that, the police from Songea central station and the doctor came on the same day i.e. 20/2/2017 at 4.00 pm. She went with them to the crime scene. At the crime scene the police and the doctor examined the deceased's body; they read the contents of the book and took the book away. She stated that, on 22/3/2017 during evening hours while at her home at Mpambano. She was informed that Deograsius Msemwa was seen at Liganga village. She informed the militia men and deceased's brother, Elhad Nungu. She also wrote a letter to Liganga village officer so Deograsius could be arrested. On 23rd at 1.00 am, she was called by the militia men who told her that they already arrested Deograsius Msemwa. She called the police and informed them that the suspect was already arrested at Liganga and asked them to deploy policemen to go to Liganga. The police came, she proceeded to Liganga with the police. However they met the militiamen and the accused at a road junction between Muungano Zomba and Nakahuga villages, they joined them and they all went together to Peramiho police station. While at the police they asked the accused if he had killed Shorastika. The accused said that the deceased was his lover for 8 (eight) years. That, when they were making love, the accused asked Shorastika why was she alleging that he was a thief and that he had stolen some goats. The deceased answered the accused that, “yes you are a thief”. That's when Deo (accused) was infuriated, he hit her with a piece of wood (gongo) and killed her. She asked him why did he tie her with the kitenge, was he finishing her up?. Accused said that he tied the deceased with the kitenge after she was already dead. During cross examination by Mr. Edmund, she infer alia stated that, at the crime scene she saw an exercise book and the deceased’s body was tied with a kitenge. The exercise book was in good condition but some pages were torn as they were loose. She read the contents of the book. There were other contents which were not related to murder but she only read the contents which related to murder. While at the scene she also saw a small 1 A container, its lid and a medicine cover. The accused said that he hit her with a pole (gongo) but she didn't see it. She further said that she interrogated the accused at Peramiho police station. She recorded accused person's statement on 23/3/2017 at 8.30 am. The crime scene was near deceased’s house, about 50 meters away, there was tall grass and it was bushy. A person at deceased's house could hear an alarm raised from the crime scene. PW3: ERIAD ROLAND NUNGU testified among other things that, Shorastika Nungu is his sister, she is now deceased. On 19/3/2017 at 10.00 pm he was called by his brother in law, Alginato Mapunda who told him that, Shorastika was not at their home. He went to his brother in law’s home. His brother in law told him that he did not know where his sister had gone. By then his father and his mother were already there. They looked for her at her friends’ homes but they didn’t see her. They went back home. He and his brother in law reported the matter to the Village Executive officer on 20th March, 2017 in the morning. The VEO directed them to go to the Hamlet Chairman so the Chairman could mobilize the people to look for the deceased. The Hamlet chairman asked the people to look for Shorastika Nungu. Shorastika was seen by the people who were looking for her, near his brother in law’s home; about 70 - 80 meters away. He was not among the people who found her as he was on his way to VEO but he was called while he was on the way. He was with his brother in law. So they both went back together. They went to the bush where they saw many people. They saw his sister lying on her back, her face was facing up [amelala chali]. He also saw an exercise book on top of deceased’s chest. He didn't see anything else out of the ordinary. They informed the VEO of the discovery of the deceased’s body. They went back to the scene, the VEO went near the deceased’s body. The incident was reported to police, Peramiho. Later police officers from Songea town came; they were accompanied by a doctor. They went together to the Crime Scene. The police did their job. Later on, the police allowed them to continue with burial process. PW4: ALEGNATO PHILIMIN MAPUNDA, who is deceased’s husband stated on oath among other things that, on 19/3/2017 at 6.00 pm, Sunday, he went to watch football, at Lugagale village. He left home at 2.00 pm. He returned home at around 8.00 pm - 9.00 pm. He did not find his wife at home; the children told him that their mother had gone to collect contribution for “lishe”. The children told him that she left at 6.00 pm. She waited for one hour. He called his father in law and brother in law so they could discuss the matter. Since it was already late, they decided to report the missing person incident to the VEO in the morning. On 20th morning he together with his brother in law went to report the matter to the VEO. VEO directed them to the Hamlet Chairman. The people looked around; ultimately they saw the body at the back (rear) side of his house. The body was 1st seen by the people who went around looking for her. He went to the crime scene with, the VEO and his brother in law. He saw deceased’s neck tied with a kitenge; and he also saw an exercise book on the deceased chest. He was standing at about 2 meters from deceased's body. Finally the matter was reported to Peramiho police station, later on police officers from Songea police station came and they went to the crime scene. PW5: WP 7777 D/C KULWA, a police detective stated among other things that, on 21/3/2017 at 10.00 am while in an Investigation office she was assigned a file related to murder by Chang'd who was OC - CID. She was with DC Adam. They were both instructed to investigate a murder case. The suspect was Degorasias Jackob Msemwa. They were also given a small exercise book; it was an exhibit which had contents which were written by the accused. The accused wrote a confession, that he had murdered Shorastika Nungu. Later on the accused was arrested on 23/3/2017 at Peramiho and he was brought to Songea police station by DC Adam. She testified further that on 8/11/2017 she travelled to Mbeya; she had taken some exhibits to RCO’s office. The exhibits included a book and the specimen which were to be taken to a handwriting expert. She also had a request letter. She handed over the exhibits to writing expert, Joram Magova on 9/11/2017. On 10/11/2017, she went back to RCO's office Mbeya. They showed her the exhibits; she put it in the envelope. She was also given the report which contained results of the documents examination. She later on returned to Songea and handed over the documents and the report to the RCO who directed her to put them in the file and forward them to the State Attorney's office. The report concluded that the accused did write the confession in the exercise book. During cross examination by defense counsel she admitted that she did not bring the documentation pertaining to movements and chain of custody of the exhibits. PW6: ASP MAULILIO CHANG’A who was OC - CID, Songea District at the time of the incident testified among other things that, on 20th March, 2017 at 10.00 while at Songea police station the Village Executive Officer of one village called and informed him that there was a body that had been seen in the bushes. He went to the crime scene with some detectives and a doctor. At the crime scene they found a body of a female, she was deceased. They were told that her name was Shorastika. The deceased’s neck was tied with a piece of Khanga. She also had a scar at the fore head. He also saw a yellow green and red colors small exercise book. In the book there was a statement which read “mimi Deo Msemwa nimeamua kumuua huyu mpenzi wangu kwa kuwa amesema mimi ni mwizi wa mbuzi." He also wrote that the deceased had told her husband about their extra marital relationship. Thereafter, they collected the exhibits, recorded statements of witnesses and took the deceased's body to mortuary. He stated further that, on 21/3/2017 in morning hours he was in the office. While there he was informed that the accused was arrested at Liganga village and had been remanded at Peramiho police station. He sent detectives to bring him to the station. They obtained a handwriting specimen from the accused, took the exhibit and send both of them to the hand writing expert. The exhibit (exercise book) and the specimen were taken to Mbeya by DC Kulwa for handwriting examination. Later on the results were brought, the handwriting expert found that the specimen handwriting was the same with the handwriting in the book. PW7: GETRUDE LAMU MISANA was a justice of peace who recorded accused person’s confession; she testified on oath among other things that, in March, 2017 she was a Resident Magistrate at Songea Urban Primary Court. On 24/3/2017 at 8.30 am while in her office the Magistrate in - charge, Mattaka instructed her to take an extra Judicial statement of a suspect. The accused was brought to her by a police officer, one Adam. The police officer released the hand cuffs and left the accused with her. She informed the accused person of his rights. The accused agreed to issue a statement. She ultimately recorded accused person's Extra Judicial Statement [Exhibit P.4], PW8: H 928, DC MUSSA IDD, A Police Officer, based at Songea was among the detectives who went to the crime scene at Muungano Zomba village on 20/3/2017. He went to the crime scene with his fellow police officers and a doctor from Songea Regional Hospital. The team leader was the OC - CID, Chang'a. At the crime scene; they saw a female body lying on its back. They also saw an exercise book on top of the body, a small book with mixed colors; green, yellow and red. The khanga was folded and put on the deceased’s neck. There was a wound on the fore heard; it shows that she was hit by a heavy object. He drew the sketch map of the crime scene [Exhibit P.5], The deceased’s name is Shorastika. From deceased’s body to her home, the distance was 400 meters. The crime scene was surrounded by tall trees. The distance from the trees to the deceased’s body was about 4 meters. PW9: NO. G 1788, DC ADAM, was among the police officers who went to the crime scene. They first went to Peramiho police station, and later on went to the crime scene. At the crime scene, they saw a female person body that has been lying on the back facing up (umelala chali).He went close to the body. The neck was tied with a kitenge. There was an exercise book which was on top of the deceased's body. They were told that the deceased was Shorastika Nungu. They also saw a wound on the fore head. Also the deceased's neck was loose and it had some bruises. The team leader took away the exercise book and kept it in a kaki envelope. He and DC Kulwa were assigned to investigate the murder of Shorastika Nungu on 21/3/2017. They were also handed the exercise book which was inside the file. The suspect in the case was Deograsias Jacobo Msemwa. They knew that Deograsius was the accused because the name on the exercise book was written Deo Msemwa. In the exercise book there was a message written by Deo Msemwa. The message generally indicated that he had committed the murder of the deceased Shorastika. On 23/3/2017 at around 10.00 am they were informed by the OC - CID that the accused Deograsius Jacob Msemwa had been arrested and that he was detained at Peramiho police station. They went to Peramiho to take the accused on the same day at 3.30 pm. They got back at Songea police station around 4.30 1 O pm. ACP Chang’a interviewed the accused orally. He later on took the accused to the investigation room to record his caution statement at 5.30 pm. Later on 24/3/2017 he took the accused to Songea Primary Court so the accused could issue an Extra - Judicial Statement. He handed him to a magistrate, Missana. After finishing recording the Extra - Judicial Statement, Missana handed back the accused and the extra judicial statement which was in an envelope. He testified further that, on 10/10/2017 at 8.00 am he was instructed to take handwriting specimen from the accused which would be compared with the handwriting in the exercise book, so they would be taken to the handwriting expert. By then the accused was in remand, in the prisons. They went to the prisons. They conveyed the accused to the police station. He asked the accused to write the words which were in the exercise book, he wrote in five papers which were labeled B - 1, B - 2, B - 3, B -4 and B - 5. On 8/11 /2017, DC Kulwa took the specimen and the exercise book to the handwriting ex - pert at Mbeya. Thereafter they received the handwriting expert results in 2nd November. The handwriting ex-pert opined that B -1 - B -5 was similar to the handwriting in the exercise book i.e. the writer of both the sample and the message in the book was the same person. He thereafter recorded accused person’s caution statement [exhibit P.6], During cross examination by Mr. Edmund he among other things said that, deceased’s neck was tied with a kitenge. The kitenge wasn’t tightly tied. The wound was on the forehead which seemed to have been caused by a heavy object. At the crime scene they saw an exercise book. The book was taken by ASP Chang’a. The doctor said that there was indication that the deceased was strangled. He also said that death could have been caused by the wound on the head. He saw bruises on the deceased's neck. They took the accused from Peramiho on 23/3/2019 around 2.00 pm. The accused couldn't be interviewed at Peramiho because the file was at Songea. PW10, MR. FLORIAN SEBASTIAN KOMBA, a human doctor went to the crime scene with police officers. At the crime scene he saw a body which was covered with a khanga or kitenge. On that khanga or kitenge, there was a small exercise book. The police took the exercise book and read the contents of that exercise book, removed the khanga that was used to cover the body and removed a cloth (khanga/kitenge) which was tied around the deceased's neck. He examined the body and he prepared a post mortem examination report [Exhibit P.7] which was handed to the investigator. There was puffiness on the face of the deceased. It seems that she was strangled. If the accused claims that he hit the deceased then he would have to hit the deceased first, later tie her with the khanga. He observed that the cause of deceased’s death was strangulation, the neck was loose. The neck could have been twisted by hands. If she was strangled by a khanga the neck remains stable, it does not loosen. The neck loosens if it is twisted by hands. His opinion is that the accused's head was twisted. The stability of the bone is affected by twisting the head, it causes blockage of the air. If you twist the head, there would be broken bone which results to blockage of the air as it's compressed. The post - mortem examination report is summary of the observation. There is no likely hood for a person whose head was twisted to bleed through the nose, mouth and the ears. On further cross examination he said that, there was multiple puffiness of the whole face. Hitting by blunt object may cause puffiness of the face. The extent of puffiness depends on each person’s body/reaction to the trauma. He only noted the trauma in the face. There’s possibility of a poisoned person to have a swelling body depending on the reaction of the body. He saw a container which was suspected to have contained medicine. He didn't collect the container for further investigation. He didn’t examine if the deceased died of poisoning. For defence, the accused, DEOGRASIAS JACKOBO MSEMWA, testified on oath, he denied to have killed the deceased; he even denied to have ever known the deceased. He said that he lives at Muungano Zomba village. On 19/3/2017, he was at his home; at Muungano Zomba. In the morning, he went to his farm. The farm is at Namahimba. The distance from his home to the farm is a one hour walk distance. He got at the farm at 7.00 am. He continued to do farm work. He did not know if his family knew that he was at the farm, his wife was not at home as she had gone to see her parents at Lilumba Village; she had left on 10/3/2017. On 19/3/2017 while still working at the farm; in the evening he slept at the farm in a hut. He continued to work till 23/3/2017 when he was arrested at 2.00 am while he was sleeping at his farm. They took him to Peramiho police station; at 2.00 am. They put him in a lock up. They called him to the investigation room at 2.00 am. A caution statement was read to him, he refused as it was not his. At Peramiho they told him that he was facing a charge of murder of Shorastika Nungu. He denied the charges. They took him back in Remand at Peramiho station. They later on brought him to Songea Police Station at 12.00 noon; they put him in lock up. Police officer, Adam called him to an office for an interview at 5.00 pm. However he was not interviewed. They returned him to the lock up (Remand). Adam asked him the name only. On 24/3/2017 he was at Police Station Songea. He was never taken to the Justice of peace. He stayed at the police till 29/3/2017 when they took him to court, DC Songea. They charged him with murder of Shorastika Nungu. He lastly said that, he knows nothing of the exercise book; it’s alleged that it was found on deceased’s body. He didn't write in the exercise book. He is illiterate. He did not write on the specimen [exhibit P.2], He does not know how to write. He never went to school. He does not know the husband of Shorastika Nungu. Looking at the evidence as a whole closely, there were three suggested hypotheses as to the cause of death of the deceased. Some of the witnesses who went to the scene saw a wound on the deceased's head and bruises on the body which is indication that the deceased could have been assaulted, that is one hypothesis. Second probable cause was strangulation; deceased’s neck was tied with piece of cloth and third assumption which was not tested was suicide by taking unknown medicine; as medicine container, medicine cover and container lid were found near the deceased's body. However, as noted in the evidence, PW 10, the doctor confirmed that the deceased died of strangulation. As observed in the testimonies of witnesses, none of them saw the accused killing the deceased. The prosecution’s case rests on accused person's repudiated confessions. There are three piece of confessions:- First, there is evidence to the effect that the accused wrote in the exercise book confessing that he had killed the deceased. The prosecution tries to establish that, the accused person confessed by writing in the exercise book that he had killed the deceased who was his lover. The hand writing expert opined that the specimen taken from the accused person’s hand writing had similar characteristics with the handwriting in the exercise book. Secondly, there is evidence showing that the accused person’s confessed before the justice of peace that he had murdered the deceased and lastly, there is evidence that the accused confessed before a police officer. On the other hand the accused person denied to have killed the deceased and he put forward the evidence of alibi, that he was not at the crime scene at the time when the offence was committed. To top up it all, he said that he is illiterate; he can neither read nor write. Admittedly, as indicated earlier, there is no eye witness evidence connecting the accused person with the offence which he is charged with. The only available evidence bases on the repudiated confessions. Upon scrutiny of evidence the immediate lingering issue is whether the repudiated confessions can be the basis of conviction? Confession to a police officer was made before No. G. 1788 DC Adam who testified as PW9. The confession is contained in Exh. P.6; the relevant part reads thus, 11 nilimwadhibu kwa kumpiga ngumi kifuani na kichwani ...... alidondoka chini na kupoteza fahamu..... nilimfunga na kitenge chake shingoni baada ya kuwa nimemwona tayari amekufa...” (Emphasis is mine). Again, the evidence indicates that the accused confessed before the justice of peace, a magistrate Getrude Lamu Misana who testified as PW7. The confession is in Exh. P.4 and the relevant part reads thus; “.... baada ya kufanya mapenzi aliniambia wewe ni mwizi wa mbuzi. Nikamuuliza mwizi wa mbuzi wa nani? Akajibu wa kwao. Nilimwambia mimi sio mwizi wa mbuzi wenu. Akasema wewe ni mwizi wa mbuzi wetu, ndipo mimi nilipo mwadhibu alidondoka chini na kuzirai na baadae kufariki. Baada ya kufariki, mimi nilichanganyikiwa na kumfunga nguo shingoni. Nilipofunga nguo shingoni, nikaandika barua kuwa asisumbuliwe mtu yeyote (Emphasis provided). Yet according to PW2's testimony it seems that the two i.e. deceased and accused person decided to take their own lives, “tumeamua kujiua”. Upon diligent and keen scrutiny of the confessions; it is my view that, despite the fact that the evidence tends to show that the accused confessed to have committed the crime, yet it is apparent that the confession may be not true as it differs from the rest of the evidence, especially that of the doctor who performed the post mortem examination. According to the doctor's report the cause of death was established to be strangulation. Whereas, the cause of death as indicated in both confessions i.e. before the police, vide exhibit P.6 and before the justice of peace, through Exh. P.4 was a punishment induced by the accused by hitting the deceased, the deceased fell down unconscious and later died. Therefore, according to the confessions the accused punished the deceased to death by hitting her. Exh. P.6 shows that the accused hit the deceased with fists on the chest and on the head whereby the deceased fell unconscious and later died. In exh. P.4 he said that he punished the deceased, the deceased fell unconscious and later she died. In both confessions, the accused stated that he tied the deceased around her neck with a piece of cloth after realizing that she was already dead. There was also evidence of PW2 who said that she recorded accused’s confession but the said confession was not brought to court. However, even if the same was brought, considering the oral narration by PW2, the confession would have similar fate as it is with exhibit P.4 and exh. P.6. Furthermore, this narration contradicts other confessions as PW2 said that the accused had confessed to have hit the deceased with a pole (gongo). As a matter of law, retracted or repudiated confession must be supported by other pieces of material evidence, see the case of Mwita Marwa V. Republic [200] T.L.R. 372 at 373 where it was stated that, ‘‘...the trial magistrate found the confession admissible evidence but the appellant having repudiated it, there was need to look for corroborative evidence". Also in the case of Richard Lubilo and Mohamed Selemani V. Republic [2003] T.L.R. 158 in which case the case of Tuwamoi V. Uganda [1969] E. A. 84 was quoted with approval and the court stated inter alia that:- "if the court is satisfied that the statement is properly admissible and so admits it, then when the court is arriving at its judgment it will consider all the evidence before it and all the circumstances of the case, and in doing so will consider the weight to place on any confession that has been admitted. In assessing a confession the main consideration at this stage will be, is it true? And if the confession is the only evidence against the accused then the court must decide whether the accused has correctly related what happened and whether the statement establishes his guilt with that degree of certainty required in a criminal case. This applies to all confessions whether they have been retracted or repudiated or admitted". As indicated above, looking at the case as a whole that is with other material evidence it is quite unlikely that the confession can be true as it is not probable that the cause of death of the deceased could be the impact of being beaten by fists. The confession contradicts and is inconsistent to the medical report as observed and opined by the doctor who concluded that the deceased died of strangulation of air ways. Yet another piece of evidence is the confession written in an exercise book which was admitted as Exhibit. P . l. This exhibit is questionable, first the name on the book is written Deo Msemwa, there was no satisfactory explanation if Deograsias Jackobo Msemwa was the owner of the book, secondly there were other written texts in the exercise book but they were not taken to the expert for comparison and lastly the hand writing which was taken to the hand writing expert was from loose papers pinned to the exercise book by staples rendering their authenticity questionable. Indeed there is a grey area as to whether the papers which were taken to the hand writing expert for examination were part of the exercise book which was found on top of the deceased body or whether they were brought in from somewhere else. Yet again, it is evident that some texts had been scribbled in the exercise book well before the incident; no efforts were made to call the people who were acquainted with the hand writing of the accused to give their opinion so the doubt could be cleared. The law, particularly section 49(1) of the Evidence Act, Cap. 6 R. E. 2002 recognizes the relevance of opinion of a person who is acquainted with the hand writing and it reads thus:- “When a court has to form an opinion regarding the person by whom, any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is relevant fact” It is my view that it is not conclusively proven that the exercise book (Exhibit P .l) and the hand writing which was taken to the hand writing expert do belong to the accused. On the other tone, the accused person’s defence that he did not write the confession text because he can neither read nor write could be true. Be that as it may, there is no sufficient evidence linking the accused to the offence. For the evidence to be sufficient to prove the accused’s guilty, has to be beyond any reasonable doubt. Invariably, the judge has to give good and convincing reasons for reaching at a different conclusion from those of his assessors; see Usi V. Athumani Matu V. Republic [1988] TLR 79. Having assessed the confessions and discussed the reasons for declining to rely on them to find the accused guilty, it is my view that the above analysis of evidence suffices as reasons for departure from the assessors opinions; as all three assessors were of the view that the accused was guilty of the offence of murder basing on the confession. That being said and basing on the aforesaid, I find that the prosecution has failed to prove the case beyond all reasonable doubt. In the event, I find the accused not guilty of the offence of murder contrary to section 196 of the Penal Code, Cap. 16 R.E.2002. Consequently the accused is acquitted accordingly. Right of Appeal is Explained. S. C. MOSHI JUDGE 06/ 02/2020