Republic vs Ayoub Mumba Saimon Criminal Session No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 47 OF 2021 REPUBLIC VERSUS AYOUB MUMBA SAIMON JUDGMENT Date of last Order:11-11-2024 Date of Judgment:25-ll-2024 B.K.PHILLIP,J The accused herein is charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2019. The facts of the case the learned State Attorneys presented during the preliminary hearing are as follows: The accused is the deceased's stepfather. TTie deceased was staying with the accused and her mother, Mwajuma Issa Abdallah. She was seven years old (7) and had a young sister, Subira Ayoub, the accused's biological daughter. She was three years old. On the 24th of January 2020, i in the morning, the deceased's mother left the deceased and her young sister at home. On the same day, the accused was seen walking along the road with the deceased while holding her hand. When the deceased's mother came back home, she found Subira Ayoub only. She started looking for the deceased and asked her neighbors to assist her. In the course of looking for the deceased, it was noted that the accused was not cooperative, although he was the last person to be seen with the deceased. When the accused was asked by the family members and neighbors about the whereabouts of the deceased, he told them that they should not worry since she was alive and would come back home. After pressing him so much to tell the whereabouts of the deceased, he told them that his traditional doctor knew the whereabouts of the deceased. Consequently, the accused was arrested and suspected of killing the deceased, as he was the last person to be seen with the deceased. On 27th January 2020, the deceased body was found lying in the forest owned by the Army, KJ- 511, in Pugu , within Ilala District in Dar es Salaam Region. Her private parts and eyes were removed. Her underwear was beside her. 2 During interrogations, the accused confessed to having murdered the deceased. A DNA test was conducted, and the specimen collected from the deceased underwear and the accused mouth swab matched. A postmortem was conducted and revealed that the deceased died an unnatural death. The learned State Attorneys, Emma Moshi, Erick Kamala, and Erick Devis, appeared for the Republic, whereas the learned Advocate, Zidadi Mikidadi, represented the accused person. The issue for determination in this case is whether or not the accused murdered the deceased. The prosecution paraded nine (9) witnesses in proving their case. The accused was the sole witness in the defence case. The first prosecution witness ( PW1) was SP Lwitiko Kibanda, who testified that in January 2020, he was the OCD of the Ukonga. On 25th January 2020, he received information that a girl child known as Amina Ayoub ( the deceased) was missing from her family. He was informed that the matter was reported by a couple, Ayoub ( accused) and Mwajuma. He ordered the Police officer who gave him that information to bring the couple into his office. After a short discussion with the couple, he advised them to return home and bring a report to the police after 24 hrs on whether they managed to find their daughter or not. The accused and Mwajuma left. On 26th January 3 2020, when he was in his office, he received the accused, Ayoub, who was brought into his office by several people on allegations that he ( Ayoub) was the last person seen with the missing child. So, they demanded the accused bring back the missing child. The accused was from Majohe Halisi area. He had to take the accused to Stakishari Police Station for his safety. After that, his subordinate interrogated the accused, who admitted that he killed the deceased, removed her private parts and eyes, and shaved her hair. Moreover, the accused told the police officers that he was ready to show them the place where he took the deceased and killed her, that is, in the forest owned by the Army. PW1 testified further that he organized the investigation team and prepared a letter to request permission to enter the forests owned by the Army-KJ 511. On 27th July 2020, he went to the crime scene with other police officers. The accused showed them the way to the crime scene. It was not far from his residence. Civilians around that area, including the deceased's mother ( PW 2 ), also joined them in the search for the deceased. Finally, they managed to see the deceased. Her private parts and eyes were removed. Her hair was shaved. The deceased's underwear was beside her. She wore a blouse, and the lower part of her body was naked. Her mother, PW2, identified her. After that, they took the deceased 4 to Muhimbili Hospital for medical examinations. A police case file for an offence of murder against the accused was opened. PW1 also identified the accused person before this court. Furthermore, during cross-examination, PW1 told this court that for the first time, the information that was reported to the police station by the accused person and his wife was about a missing girl (deceased). The accused was cooperative during the investigation of the case. PW2 was the deceased's mother, Mwajuma Issa Abdallah. Her testimony was to the effect that the deceased in this case was Amina Ayoub, her daughter. She went missing on 24th January 2020. On a fateful day, she (PW2) left the deceased and her young sister, Subira Ayoub, at her home. When she came back, she only found Subira. She asked her neighbors the whereabouts of Amina, and they told her that Amina had left with her father, that is, Ayoub (The accused person). The accused was Amina's stepfather. She was married to Ayoub and had been staying with him for five (5) years. In the course of looking for Amina, she met a boy who told her that he saw Amina (deceased) with the accused. After that, she called the accused person using her cell phone, but he did not pick it up. Then, she decided to call him using her land lady's cell phone. The accused picked up the call, and 5 she asked him Amina's whereabouts. In response, the accused told her to wait for him at home. When the accused arrived, he found her with their neighbors, who were all waiting for him ( accused). She asked him again about Amina's whereabouts. In response, he told her and the neighbors who were around there that he did not leave with the deceased. So, they continued looking for the deceased, but in vain. Finally, PW2 and the accused reported the matter at Gongo la Mboto Police Station and were given RB number. They were advised to return to the Police station the following day to report whether or not they managed to find the missing child. They returned home and found their neighbors waiting for them. Their neighbors demanded they bring back the child (Amina). At around 4:30 pm the following day, PW2 went to her brother to inform him what happened. Thereafter, she continued looking for the deceased. Her neighbors advised her to report the incident at Pugu Police Station. They went to report the incident at Pugu Police Station but were advised to go to Stakishari Police Station. They followed the advice. On 27th January 2020, when she was at home, she heard noises coming from the direction of the forest area owned by the Army. She ran towards the direction where the noises were coming from to see what was the matter. Upon arriving in the forest, she saw many 6 people, some of whom were policemen. Also, she saw the accused and the deceased lying on the ground on her back. She had a blouse only. The lower part of her body was naked. Her private parts were removed, and her underwear was beside her. She recognized her and remembered the clothes she was wearing on the fateful. Moreover, PW2 testified that Ayoub was arrested on 26th January 2020 in the Majohe Halisi area, where he had taken her ( PW2), her brother, and neighbors to a traditional doctor since he had told them that he had taken the deceased to a traditional doctor. However, upon arriving at the Majohe Halisi area, they neither found the traditional doctor nor the child (deceased). There was chaos. People wanted to beat him. Suddenly, while they were still there, a police vehicle arrived. They took her and Ayoub (the accused) to Stakishari Police Station. Other people who were around that area followed them to Stakishari police station. Upon arriving at Stakishari Police Station, she was released, and Ayoub has been put under custody since then. During cross-examination, PW2 told this court that she left the accused at home with Subira and Amina. Amina was dressed in a grey skirt and a white top. John Nyangali told her that the accused had left their home with Amina. The deceased's biological father is Mr. Katunzi. She had no serious quarrels 7 with the accused. In the beginning, Ayoub was cooperative, but later on, he was not cooperative. PW3, Hassan Athumani Hussein, supported PW2's testimony. He testified that PW2 is his young sister and the accused is his brother-in-law, PW2's husband. On 25th January 2020, PW2 informed him that her daughter, Amina, was missing. He requested him to assist her, but because he was going to work, he allowed his wife to accompany her in looking for the missing child. Later on, he called PW2 to find out whether they managed to find the child. In response, she told her that her husband /accused told them he would return the missing child. On 26th January 2020, he went to Ayoub's home earlier in the morning. He demanded the accused to bring back the missing child since he promised his wife ( PW2) that he would bring back the child. The accused told him he should not worry as the child was not far away. When he was talking to the accused, PW2 and the leader of that area were around. The accused stood up, and they started walking together. After about ten paces, he (the accused) stopped walking and told them he did not know the child's whereabouts, but he took the child to the traditional doctor. After that, they told the accused to take them to the traditional doctor. He agreed. The accused took them to Majohe Halisi to show them the traditional 8 doctor. Upon arriving at Majohe Halisi, the accused showed them a room. They opened it. There was no one inside. There was a bed and a mattress only. Many people gathered and surrounded Ayoub. He ( PW3 ) and a few people protected him from being assaulted by the mob. After that, a police motor vehicle arrived. PW3, the accused, the chairman of that area, and PW2 were taken to the police station. Other people came to Stakishari police station by their transport. Furthermore, PW3 told this court that on 27th January 2023, he went to the crime scene in the forest. He witnessed the deceased body lying on the ground. Her eyes and private parts were removed. Her hair was shaved. Her underwear was beside her. Ayoub was present at the crime scene. The accused person was taken to Stakishari Police Station. PW4 was Dr. Innocent Justine Mosha, who examined the deceased's body. He testified that on 28th January 2020, he was at his workplace, Muhimbili National Hospital. He examined the deceased, who Hassan Athuman and Damian Felician identified. The deceased's name was Amina Ayoub, female, estimated to be 7 years old. Her body was swollen and had started to decay. Her eyes were removed, and private part was chopped off. It was not possible to ascertain the cause of death, though he noted that it 9 was not a natural death. He took some samples for DNA test. After completing the medical examination, they prepared a report. He tendered in court the postmortem report ( Exhibit Pl ). PW5 was MT 76576 SGT Amani Albert Tillya, an employee of JWTZ, working at KJ-511. His testimony was that on 27th January 2020, at around 9.00 am, Police officers from Stakishari Police Station came to his office. CPL Ernest led them. He received and assisted them to enter into the forest owned by the army KJ- 511. They told him that they were looking for a missing child. They came by car. They were in two vehicles. He saw two police officers in uniform. He asked them who would lead them to the crime scene. They told him that Ayoub Mumba would show them the crime scene. He went with them into the forest. PW5 identified the accused before the court. Further, PW5 testified that he entered the forest with the police officer and other people (civilians). They split into two groups. Ayoub Mumba was leading them around the forest. They spent more than one hour. Then, they arrived at the crime scene. People started shouting. There was a horrible smell. He saw a dead body of a girl child. Her hair was shaved. Her private parts were chopped off. Her underwear was thrown beside her. It was full io of blood. The lower part of the body was naked. Then, the dead body was covered with a "khanga". People who were around wanted to beat Ayoub Mumba because they were claiming that Ayoub Mumba killed the child. While they were still at the crime scene, the police ordered the deceased's mother to come in front to identify the dead body, and when she saw the dead body, she shouted that it was her child. Police officers did other procedures, and the deceased was taken to hospital. PW6 was John Ngonyani Dominicus. His testimony was that he knew Ayoub Mumba, the accused. Ayoub Mumba and his wife were his neighbors in the Pungu Bansani area. Ayoub Mumba stayed with his wife and their children, Amina and Subira. On 24th January 2020, he saw Ayoub in the street. He was with his daughter Amina, the deceased. He was walking along the street in Pugu area. On the same day, at 08:00 pm, Ayoub's wife asked him if he had seen her daughter Amina. He told her that he saw Ayoub was with Amina. On 26th January 2020, in the morning, he went to Ayoub's home and other neighbors to ask him about Amina's whereabouts because he had been with her the previous day. Mr. Ayoub told them that Amina was in another area called Majohe Halisi. They left for Majohe Halisi with Ayoub. When they arrived there, he showed them a room which was closed. They broke the li door of that room and found a bed and mattress. The child was not there. After that, people were furious. The situation was chaotic. Moreover, PW6 gave a similar narration to the one made by PW2 and PW3 on how the police vehicle arrived at Majohe Halisi area and arrested the accused. Also, he testified that he told the Police officers that he saw the accused (Ayoub) walking with Amina along the road. On 27th January 2020, he went to the crime scene and saw the deceased body. PW7, Fidelis Charles Bugoye, was a chemist at the Government Chemistry Laboratory Authority stationed in Dar es Salaam. He told this court he is a gazette Chemist under GN.No.28 of 2018. Thus, he has the power to do DNA investigations. He conducts DNA examinations at the Government Laboratories located in Dar es Salaam. On 4th February 2020, he was at his workplace. He received samples from Ukonga Police, which were accompanied by a letter. There were 7 samples marked and kept in an envelope. Sample "A" was the deceased's underwear -light blue. Sample " "B" was a vaginal swab from the deceased. Sample " C" had hair suspected of being human hair. Sample "Cl" also included hair suspected of being human hair. Sample "D" was navel, suspected that it was from a human being, and Sample "E" was a mouth swab from the accused. Sample " F" 12 was a mount Swab from Riziki Saimon. The letter from the police required that DNA tests of all samples be done. Upon checking all samples, he registered them in the system as No.460/2020. The police officer who brought the samples signed the register. He kept the samples in the exhibit room at room temperature because they were already dry. He took the letter to the chief of Government Chemistry. The Chief Government of Chemistry ordered the examination of the samples. He started the examination of the samples on that very day as per the procedure. He examined the hair using a microscope and realized that the hair was human hair. Also, he realized that navel was a human being. He did DNA extraction for the remaining samples. These did not need preliminary testing. He followed all the required steps and placed the results in the laboratory machines. He kept them and prepared his final report. The results were as follows. The hair was human hair. Navel was from female human being. For the Viginal swab, the machine did not display results. The test from underwear showed that there was DNA from a male. Samples "E" and "F" showed DNA from males. The results of the sample from the deceased underwear were similar to the DNA from Ayoub Mumba (the accused person) and were different from Riziki Simoni. He signed his report on 26th 13 February 2020 ( Exhibit P2). His boss, Mr. David Elias, approved the report. The same was handed over to the police officers and sample "A". The rest of the samples were destroyed because they were perishable. PW8 was E8100 DCPL Frank, a police officer working at Stakishari police station. He testified that he was an investigator in this case. On 26th January 2020, he was in the Majohe Halisi area with his colleagues. They saw people quarreling. They inquired what was the matter and were informed that there was a father, called Ayoub, who was left with a child, and later, the child was nowhere to be seen. They arrested the father (accused ), the mother of the child, and one person in that group. They took them to Stakishari Police Station, handed them all to the police officers, and left. They rescued the accused person from being assaulted. He did not know if the people who tried to assault the accused persons were related or not. On 27th January 2020, he went to a forest in the Pugu area. He was with SGT Ernest and ASP Lwitiko. Upon arriving at that area, they found other people. They split themselves into two groups. He joined the group of the accused. They entered the forest and managed to find the deceased body. It was rotten. Her eyes were removed. The private parts were also removed. Besides the dead body, there was underwear. The deceased's gown was pushed upward. 14 The accused told them that it was Amina, the one they were looking for. The deceased's mother was there. She recognized the deceased as her daughter, Amina. She told them that the accused was the deceased's stepfather. After that, the investigation continued. He was assigned to draw the sketch map of the crime scene by SP Lwitiko. He drew the sketch map ( Exhibit P3) of the area where the deceased was found with the assistance of the leader of that area. The sketch map was for the areas where the dead body was found. He identified the accused person before the Court. PW9, E9935 DSGT Ernest testified that on 27th January 2020, he was assigned by his boss, SP Lwitiko, to prepare a letter requesting permission to enter the forest to look for the missing child. He complied with the directives and obtained permission to enter the forest located at JK-511. He went to the forest with SP Lwitiko and CPL Frank to look for the deceased. They passed through Pugu Mwakanga area. They split into two groups. He was in one group with SP Lwitiko and the accused person. Finally, they found the dead body of a girl child, and the accused told them that it was the body of Amina whom they were looking for. The deceased's eyes and private parts were removed. There was underwear beside the dead body. The underwear was light blue. After that, a forensic team from the 15 headquarters came to the crime scene. On 4th February 2020, he was instructed to take samples to the Chief Government Chemistry office for examination. Those samples were the deceased's underwear, hair, navel, and tube with sticks/mouth swabs. Other samples were obtained from another person called Riziki, who was mentioned by the accused person that they killed the deceased together. On 27th January 2020, at around 6.00 pm, he recorded the accused's caution statement. He gave him all his rights as provided under the law, including the right to call his relatives and advocate when recording his caution statement. The accused told him that he was ready to record his caution statement and did not want anybody to be around when recording his caution statement. He started recording the caution statement at 6.00 am up to 6.30 pm. In his statement, he admitted that he killed the deceased. After recording his statement (Exhibit P 4), he asked him to read it. After that, he signed the caution statement and verified it was correct. He returned him to remand. On the other hand, the accused testified as DW1. His testimony was that he was a mason. He was staying at Majohe, along Pugu road, in Ilala, with his wife, Mwajuma Issa Abdallah ( PW2). He started staying with her in 2015.His family comprised of himself, his wife and their children, Amina Ayoub 16 (deceased) and Subira Ayoub. Their life was normal. They had no problems or misunderstandings. He started working as a mason in 2002. On 24th January 2020, he was at home with their children, Amina and Subira, from 8.00am to 3.00 pm. In the morning, his wife went to Amana Hospital to see their neighbor, who was admitted to Amana Hospital. His wife came back at 3.00 am. He found him at home with their children. Upon the arrival of his wife, he went to his activities. The children remained with her wife. At 7.00 pm, his wife called him and asked if I had left with the deceased ( Amina). He told her that he did not take Amina. He had to go back home immediately. He cooperated with his wife in looking for the deceased. Finally, they reported the matter to Pugu Police Station. They were given RB numbers on the loss of the child. They gave the police officer their cell phone numbers and were told to wait for 24 hours. Then, they would be told the way forward. On 25th January 2020 they started looking for Amina in the Pugu area again. They went up to Majohe kwa Ngozoma area. Still, they did not find the child. They went to Stakishari police station. He was with his wife, their neighbors and his brothers-in-law. They arrived at Stakishari police station at 9.00 am.They went there to report that their daughter was missing. They met SP Lwitiko. Their complaints were recorded, and they 17 were given RB Numbers and left their contacts with the police officers. At 1.00 pm, his brothers-in-law, namely Hassan, Iddi, and one whom he did not know his name, came to his home together with Mariam Dunia. They interrogated him about Amina’s whereabouts. They told him that he knew Amina's whereabouts. The accused denied knowing Amina's whereabouts. What followed there were quarrels. They insisted that he was supposed to show them where Amina was. His brother-in-law started throwing stones at him. Then, he told them that they better go to the police station. They agreed and started going to the police station. On the way, they met a police Vehicle. The police officer disembarked from the vehicle and told all the people who were around there to stop assaulting him. He was taken to Stakishari police station together with his wife. At Stakishari police station, he was put under custody on an allegation that he was the last person seen with the missing child. He stayed there up to 26th January 2021.In the morning, he was informed that the child had been found in the forest. She was dead. After that, he was taken to a building just behind Stakishari Police station, commonly known as a garage where he was tied up with a chain. The police officers asked him why he killed Amina. He told them that he did not kill Amina. They brought an iron bar made in a triangle and tied him 18 there, and then they started beating his feet. He was tortured, but he told them he did not kill the child. The ones who were beating him were Ernest and Kulwa, both police officers, and the other two policemen, who he does not remember their names. They were beating him using clubs. Then a Lady called Sisia, a police officer, came with a syringe and inserted the needle in his penis. After that, Sisia started connecting him to electrical shots to force him to confess that he killed Amina. Throughout the time they were torturing him, they covered his mouth with his T-shirt. Later, they removed the chains. He was in bad condition. They took him back to the lock-up. On 27th January 2020. D/SGT Ernest (PW9) came to lock up. He asked him his name, age, religion, and tribe. He left. Later, he took him to his office and forced him to sign a statement he (PW9) had written. He told him that he needed to know what was written therein. PW9 told him that he would beat him severely if he refused to sign the statement. PW9 had a big knife. It was on the table. He started beating him using that knife. After that, he took a pistol. He threatened to shoot him. He took his thumb, put it into ink, and pressed it on the statement he wanted him to sign. After that, he took him back to the lock-up. He stayed with D/SGT Ernest in his office from 12.00 noon to 7.00 pm. On the 30th of January 2020, SGT Ernest took him to the justice of 19 the peace at the Ukonga Madafu Primary Court. He showed the Magistrate the injuries he had. He had not eaten for a day. The justice of the peace asked him to tell her what happened. He explained to her his life background. After recording his statement before the justice of the peace, he was taken back to the police station at around 2.00 pm. On 11th March 2020, he was arraigned at the District Court of Kinyerezi and charged with murder. He did not show the police officers the deceased's body in the forest. PW6 saw him with Amina and Subira while he was at home in the morning. He is suspected of killing Amina because, in the morning, he was with her. He did not show the police where the child was. He denied having killed the deceased. He prayed to be found not guilty and released. Further, in response to questions posed to him during cross-examination, DW1 told this court that on 27th January 2020, he went to the forest. He did not see the deceased's body in the forest. On a fateful day (24th January 2020), Amina went to school, and he went to take her from school at 10.00 am. In this case, there is no dispute that the deceased died an unnatural death. According to Exhibit Pl (Postmortem report), the cause of death is unknown because her body had decayed. As alluded to earlier in this judgment, the 20 crucial question in this case is who caused the deceased's death/murdered the deceased. There is, admittedly, no eyewitness evidence of the murder of the deceased. However, the accused told this court that on the fateful date in the morning, he was with the deceased and his young sister, and in his caution statement ( Exhibit P4) admitted to having killed the deceased, narrated how he killed her, and mentioned that he was with one Riziki. The caution statement was admitted as an Exhibit in this case after conducting a trial within a trial. I am aware that it is always desirable to look for corroboration in support of a confession that has been retracted/repudiated before acting on it to the detriment of the accused. [ See the case of Dickson Elia Nsamba Shapwata and another Vs. Republic, Criminal Appeal No.92 of 2007 (unreported)]. In this case, Exhibit P4 is corroborated by the testimony of PW6, PW2, and PW3.PW6 testified that on the fateful date, he saw the accused with the deceased walking along the road, and the accused was holding the deceased's hand. PW6 is the star witness for the prosecution case because he is the only witness who testified that he saw the accused with the deceased, and that was the last time the deceased was seen alive. Moreover, PW2, the deceased's mother, PW3, and PW6 testified that the accused told them that he took the deceased to the 21 traditional doctor and took them to the traditional doctor's room, where there was nobody, as a result, there was chaos and the accused was arrested by the police officers who rescued him from being assaulted by people who were around that area. Exhibit P2 showed that the swab from the deceased's underwear was similar to the accused's mouth swab, which is proof that the accused was with the deceased in the forest and finally was found dead and had started decaying. The above aside, PW6's testimony proves that the accused was the last person to be seen with the deceased. This testimony carries heavy weight since it was corroborated with the contents of Exhibit P4 and P2. No evidence was adduced by the accused to shake it, such as a conflict between the accused and PW 6, which could lead PW 6 to fabricate a case against the accused. PW6 is a trustworthy witness. I am aware that the standard of proof in criminal cases is beyond reasonable doubt and that if the court decides to rely on circumstantial evidence, then the same should irresistibly point out that the accused person caused the death of the deceased and exclude other persons. [ see the case of Sikujua Iddi Vs. The Republic, Criminal Appeal No. 484 of 2019 (unreported)]. The above-stated legal principle is tested by examining the chain of events 22 and evidence before the court. As alluded to earlier in this case, the accused admitted that his wife, PW2, left the deceased and her young sister, Subira, with him. During cross-examination, the accused told this Court that in the morning, he was with the deceased. Then, PW6, who is his neighbor, saw the deceased with Ayoub walking along the road. Ayoub told PW2 and PW3 that he took the deceased to a traditional Doctor. He took them to the traditional doctor's room in Majohe Halisi, though no one was there. Not only that, the accused told the investigators of the case where the deceased body was, that is, in the forest, and that is where the deceased was found already decayed. In the upshot, I am satisfied that the prosecution evidence irresistibly points at the accused as the one who murdered the deceased and excludes other persons because no one would have imagined that the deceased's body was in the forests had it not been the accused person confessing in his caution statement that he killed the accused and left her in the forest. The evidence reveals that the deceased's mother, uncle, and her neighbors had been looking for the deceased but failed to find her until when the accused told the Police officers that the deceased was in the forests in Pugu Mwakanga. It is also worth noting that no one would have thought going to the forest 23 owned by the army to look for the deceased if not told that the deceased's body was in the forest. I have considered the arguments raised by the learned advocate Mikidadi in his final submission, in which he pointed out some minor contradictions in the testimonies of the prosecution witnesses. For instance, he argued that PW1, SP Lwitiko, told the court that the accused was dressed in a gown that was pushed upward, leaving the lower part of the body naked. In contrast, the deceased's mother, PW2, told the court that on the fateful day, the deceased wore a blouse and skirt, and when she saw the deceased's body, she recognized that blouse. In the case of Metwii Pusindawa Lasilasi and another Vs The Republic, Criminal Appeal No. 413 of 2020 (unreported), the Court of Appeal had this to say on inconsistencies of the testimonies among witnesses; "Our reading of the record shows that the witnesses used such terms interchangeably when referring to the container in which the 20 pieces of elephant tusks were kept. But, of the essence, they all meant the container containing 20 pieces of elephant tusks. Here too, no challenge came from the appellants' counsel that it was not the same container seized on 9/2/2018 containing exhibit P3. So, reference to the container as being a sisal sack, khaki sack or bag was a minor discrepancy not going to the root of the case hence did not prejudice the appellants. The genera! rule is that contradictions by any particular witness or among 24 witnesses cannot be escaped or avoided in any particular case and are health as they show that the witnesses were not rehearsed before testifying [See Dikson Eha Nsamba Shapwata & another v. Republic, Criminal Appeal No. 92 of 2007, (unreported)]. In this case, the Court acknowledged presence of normal contradictions and discrepancies that they are bound to occur in the testimonies of the witnesses due to normal errors of observation and expression and even time-lapse... " (Emphasis added) On the strength of the principle lied down by the Court of Appeal in the above-quoted excerpt, the contradictions pointed out by Mr. Mikidadi are minor, which, under normal circumstances, can happen due to a lapse in time from the date of the incident to the date of hearing of the case. What is essential in the evidence adduced by the prosecution witnesses is that the deceased's body was found in the forest, and the lower part of her body was naked. Her private parts and eyes were removed. Whether the upper part of her body was covered with a blouse or gown does not go to the root of the case. Similarly, Mr. Mikidadi's argument that PW6 testimony is untrustworthy because he testified that he has known the accused person since 2021, whereas the incident in question occurred in 2020, holds no water because, due to the lapse of time, it is not strange for the witness to mix up the years when the incident occurred. Moreover, during re-examination, PW6 told this 25 court that he knew the accused before the incident happened and that he was his neighbor. Thus, the alleged confusion was cleared. I have considered the accused's defence. In my opinion, it is a sham. It did not shake the prosecution's case at all. The critical analysis of the defence case shows that it supports the prosecution case. For instance, the accused testified that in the morning, he was with the deceased and Subira, which supports the testimony of PW2 that she left the deceased and her young sister with the accused. No doubt has been created against the prosecution case that any of the prosecution witnesses is not trustworthy. From the foregoing, the circumstantial evidence adduced by the prosecution witnesses proves beyond reasonable doubt that the accused murdered the deceased, Amina Ayoub. Thus, I hereby convict Ayoub Mumba Saimon of the offence of murder contrary to sections 196 and 197 of the Penal Code. Dated at Dar es Salaam this 25th day of November 2024 26