the republic vs thabiti selemani 2021 tzhc 12594 22 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TANGA DISTRICT REGISTRY) AT KOROGWE CRIMINAL SESSIONS CASE NO. 30 OF 2019 (ORIGINAL JURISDICTION) THE REPUBLIC -VERSUS- THABIT SALEHE SELEMANI JUDGMENT Last order: 19/11/2021 Judgment: 22/11/2021 AGATHO, J.: The accused person, Thabit Salehe Selemani was arraigned before this court facing a charge of murder c/s 196 and 197 of the Penal Code [CAP 16 R.E. 2002]. The prosecution alleged that on 08/02/2008 at Kwekibaya area, Chanika-Kofi Village, Handeni District, Tanga Region he murdered his wife Rehema Rashid by hacking and assaulting her with a panga on her neck, shoulders, and arms. The accused person pleaded not guilty to the charge. To prove the charge the prosecution brought four (4) witnesses PW1 – Abedi Salimu, PW2- E.2572 Detective Coplo Evarist, PW3- Hadija Waziri, and PW4 - Salehe Selemani. And they also tendered four exhibits: exhibit P1 – post-mortem report, P2 – sketch map of the crime scene, exhibit P3 – a machete or panga, and exhibit P4 – Page | 1 Mwajuma Mohamed’s statement. The defence side brought two witnesses, DW1 – Thabit Salehe Selemani, the accused person himself, and DW2 – Ramadhani Salehe. They did not tender any exhibit. In the conduct of the trial, the prosecution was led by Mr. Paul Kusekwa learned State Attorney who assisted by Ms. Sarah Wangwe learned State Attorney. The Accused was represented by the learned counsel George Magoti. In a bid to prove their case beyond reasonable doubt as required by the Law as per Section 3(2)(a) and 110(1) of the Evidence Act [Cap 6 R.E 2019] the prosecution brought four (4) witnesses. The hearing of prosecution case started with the testimony of PW1: Abeid Salimu - Kitongoji chair of Kweindege at Kwedibago Village. He testified that he received information on 08/02/2008 from the VEO and the Police that the Accused whom he knew Thabit Salehe is a wanted person as a suspect of killing his wife. And went narrating that on 9/02/2008 at 07:00AM when he was on his way to his shamba he saw Thabit Salehe, and after seeing him he called other people and together they apprehended him and took him to the village office and later to Kabuku police station. He testified during cross examination that he did not see him assaulting his wife (Rehema Rashid) with a panga. He also did not see his clothes having any blood stains. PW2 was E.2571 D/CPL Evarist was the police officer who investigated the case. In his testimony he stated after receiving the information regarding the murder incident on 08/02/2008 in the afternoon he went to the Chanika-Kofi Page | 2 village at the crime scene where he saw the deceased body with a panga placed on her stomach. With assistance of Mwanaidi Sufiani and Hadija Waziri (PW3) he drew the sketch map of the crime scene. He also saw the deceased body with cut wounds on the neck, shoulders, and arms. He was told by Mwajuma Mohamed that the deceased was killed by her husband who assaulted her with a machete (panga). PW2 also stated that he was the one who wrote the statement of Mwajuma Mohamed (exhibit P4), and other witnesses. He went further testifying that when the Accused was brought to Kabuku Police station on 9/2/2008 he rearrested him. And he confessed that he killed his wife. PW2 added that he heard that the Accused his wife were fighting. PW2 tendered the post-mortem report because he knows it as he was the one who took the body to Kwedizinga Health Centre for examination. The post-mortem report was received as exhibit P1. PW2 further testified that he drew the sketch map of the crime scene (exhibit P2). PW2 also tendered a panga which he said he took from the crime scene. But before being shown the panga he testified that the Panga has a black plastic handle and it had blood stains. When shown he recognized it and he tendered it, and it was admitted as exhibit P3. The witness (PW2) further tendered the statement of Mwajuma Mohamed because according to him she was nowhere to be found and the summons is in court record to that effect. The PW2 testified that he was the one who wrote Mwajuma Mohamed’s statement because she did not know how to read and write. The statement was tendered and admitted as exhibit P4. Before tendering the statement, the prosecution initially prayed to rely Page | 3 on the written statement of Mwajuma Mohamed as per section 34(B) of the Evidence Act. PW3 – Hadija Waziri is Thabit Salehe Selemani stepmother. She testified that she knows the Accused and his wife because they are neighbours. She went on testifying that on 8/2/2008 in morning she heard Mwajuma Mohamed the wife of Daudi Lugendo (who is also a neighbour and a brother of the Accused) raising alarm. She went there and found the deceased (Rehema Rashid) body lying on the ground and with wounds and she saw a Panga. Responding to a question during cross examination, she stated that Mwajuma Mohamed told her that it was Thabit Salehe Selemani who killed his wife by hacking her with the Panga. PW4 – Salehe Selemani is the Accused father living at Chanika-Kofi village and his house near the Accused’s house. He testified that on the date of incidence he went to his farm early in the morning. But that morning around 7:00 AM his wife Mwanaidi Sufiani came to the farm crying that Rehema Rashid is dead. The PW4 and his wife went to the crime scene and found the deceased body and a panga with a wooden handle at the crime scene. On cross examination he told the Court that he never heard any fights between his son (the Accused) and his wife. The Prosecution tendered the statement of Mwajuma Mohamed (exhibit p4) as per section 34B of the Evidence Act [Cap 6 R.E 2019]. The statement was tendered by PW2 who recorded the statement. In the statement Mwajuma testified that on 8/02/2008 in the morning she heard Rehema Rashid crying. She knew they were fighting. Since their houses are close (6 metres apart), she went Page | 4 to the Accused house having heard Rehema crying. She found the door of the Accused’s house closed. She picked a big and heavy piece of wood and smashed the door open. The door broke open, and she saw the Accused holding with his one hand the deceased both hands and his other hand hold a panga. The deceased hands and neck were bleeding. Mwajuma then told Rehema to run. According to her the deceased attempted to ran and the Accused chased her while continuing to attack her with a panga. The deceased fell and the Accused put the panga on the deceased body and vanished into the bush. In his defence DW1 testified that he was not at the crime scene as on 7/2/2008 in the afternoon he left for Kweindidi forest with his brother (Ramadhani Salehe – DW2). He testified that Ramadhani Salehe came to ask him for help to prepare the charcoal furnace (tanuri la kuchomea mkaa). Thus, in the afternoon at 1300 on 07/02/2008 they went to that forest. They spent two nights preparing the charcoal furnace. He stated when going to the bush they used a short cut and did not meet anyone. On 9/2/2008 morning they started journey back home. It was his testimony that when they reached a junction they departed. His brother went to Kabuku and he (DW1) took a way back home. On the way he was arrested and was taken to Kwedibago village and later to Kabuku Police station. And the investigation mounted. On cross examination he testified that he has a small panga with wooden handle not the one received as exhibit P3. He protested that the exhibit P3 is not his panga. He added that there was no fingerprint forensic analysis to show that there were his fingerprints in handle of the panga. He also Page | 5 added that he knows Mwajuma Mohamed. They had fights before because Mwajuma used to steal eggs. DW2 – Ramadhani Salehe testified that he lives at Kabuku village. On 07/02/2008 he went to Chanika Kofi and asked his young brother to assist him with preparing charcoal furnace. His brother agreed and they went to the Kweindidi forest for the task. They met some people on the way. They also met people in the bush/forest. They did the charcoal furnace preparation for two nights. On 09/02/2008 they decided to return home after finishing the task. In cross examination he said on the way home they crossed several villages. When they reached a junction, they departed. He went back to Kabuku village, and his brother returned to Chanika- Kofi. in response to a question posed in cross examination he told the Court that he heard first the news of Thabit’s arrest. Then later he heard about the death of Rehema Rashid. In their final submissions the learned counsels for prosecution and defence directed their minds to the facts (evidence) and the law. Mr. Kusekwa SA submitted that the evidence adduced by the prosecution witnesses is enough and have proved that the Accused is guilty. Under section 196[Cap 16 R.E 2002] we had obligation to prove: 1. That there was a person killed. This is not disputed because all witness testified that the deceased died. This is also confirmed by exhibit P1 (postmortem report). Page | 6 2. The death was unnatural, this is also confirmed by all witnesses (PW1 - PW4) and exhibit P1, the post-mortem report. 3. Is it the accused who killed or caused grievous body which led to the death of the deceased? That the death has been caused by unlawful act of an accused. There is evidence given by prosecution witnesses to that effect. 4. Did the accused have malice aforethought? On this point the learned State Attorney reminded the Court as to the definition of malice aforethought under section 200 of the Pena Code [Cap 16 R.E 2019]. Under that section there are ingredients of malice aforethought: (i) There was an intention to kill or to cause grievous body harm regardless that the person is killed or otherwise; (ii) That the person who did the act know that the act will cause death or grievous body harm. There are several decisions of the Court of Appeal including the case of Chrisant John v R Criminal Appeal 313 of 2015 CAT at Bukoba. In that case the CAT held that in murder malice aforethought is established: (i) Weapon used (ii) Force used (iii) Body part attacked (iv)Number of blows (v) Nature of wounds inflicted on the victim (vi)Attitudes or behaviour of the Accused before and after the incidence. Mr. Kusekwa submitted that in the present case all what were stated in the above CAT decision have been proved. And at the evidence points out to the Accused. Page | 7 In the evidence given by PW1 (Abedi), he said that on 09/02/2008 morning he saw Thabit Salehe (Accused) he called other people to arrest him. The accused after seeing the PW1 he started running. He was trying to escape. This is a conduct of the Accused after the incidence. This was confirmed by the Accused himself that he met the PW1. It clear that he (the Accused) was hiding himself. The PW3 (Hadija Waziri) testified that after hearing the cries and call from Mwajuma Mohamed that Rehema Rashid has been killed. She went there and saw the deceased lying on the ground and she saw a panga. She stated that she was told by Mwajuma Mohamed that Thabit Salehe Selemani is the one who killed Rehema. The PW4 (Salehe Selemani) went to the crime scene he testified that Mwajuma Mohamed told him that the Accused is the one who killed his wife (Rehema Rashid). PW2 (the police investigator) was told the same story when he reached the crime scene. Furthermore, Mwajuma Mohamed statement (exhibit P4) is tells a story that the accused killed his wife. Mwajuma stated in her statement that she lived close to the Accused house. And she heard the deceased crying, she ran there and found the door closed. She used a big wood/log to break the door and the deceased came out running and the accused continued chasing and attacking her with a panga. The incidence occurred in the morning around 7:00 A.M. Therefore, Mwajuma could not have mistakenly identified the Accused. Moreover, Mwajuma and the Accused know each other well. Page | 8 The Court of Appeal has held in Chrisant John case (supra) at page 19 while citing the case Marwa Wangiti and another v R [2002] TLR 39 that ability of a witness to name the suspect at the earliest opportunity is the guarantee of his reliability. The learned State Attorney went on submitting that since Mwajuma knew the accused and they were neighbours there was no mistaken identity. He referred the Court to the case of Waziri Amani v R [1980] TLR 250 which held that visual identification is of weakest kind and no court should act on such evidence unless possibility of mistaken identity is eliminated, and the Court is full satisfied that the evidence is absolute watertight. The Court held further that there should be sufficient light, time under which the act was done, if the accused and the witness knew each before. Mr. Kusekwa argued that in the present case, the incident took place in the morning, Mwajuma and the Accused knew each other well. Mwajuma Mohamed saw the Accused as she was the one who broke the door and saw him chasing the deceased while slashing her with the panga. The Stated Attorney insisted that there was no mistaken identity. Mr. Kusekwa submitted that from the prosecution evidence it has been proved that the Accused killed the deceased. The witness statement of Mwajuma Mohamed clearly stated that the Accused is the one who did the act. He strongly argued there was no room for another person to come and kill the deceased because the incidence took place at the Accused home (compound) and the neighbouring houses belong relatives, that is the Accused father, and brother Page | 9 (Daudi Lugendo). He thus submitted that the charge has been proved beyond reasonable doubt. Mr. Kusekwa did not end up he added that one of the issues that emerged in this case is that Mwajuma Mohamed, the eyewitness was nowhere to be found, her statement written in 2008 and is brought before this Court. The witness statement was brought under Section 34B(1)(2)(a) the Evidence Act [Cap 6 R.E 2019]. Under that provision, the law allows the tendering of the same if there is a fact to be proved by a witness and that witness during trial is either deceased, unfit to come and testify, or cannot be found then his or her statement can be tendered and received in evidence. The State Attorney submitted that the testimonies of PW2, PW3 and PW4, all stated that Mwajuma Mohamed left the village and moved to another place after been divorced by her husband. She had no relative at Chanika Kofi village. That testimony was corroborated by the evidence of PW2 who testified that they made a follow up trying to trace Mwajuma Mohamed and there was a summons issued to procure her attendance to before this Court. The same was returned unserved, and the VEO signed the summons and appended the stamp that the witness was nowhere to be found. The State Attorney rightly stated that the witness statement of Mwajuma Mohamed was not objected by the defence. Hence it was tendered and received as exhibit P4. To impress on the above provision of the law the State Attorney argued that the Accused may be found guilty by relying on the witness statement as it was held Page | 10 Vincent Ilomo v R, Criminal Appeal No 337 of 2017 CAT at Iringa at pages 23-24. In that case the CAT based its decision on the statement of the justice of peace / VEO (Reginald Msemwa) where the Accused confessed to have killed the deceased. During the trial Reginald Msemwa was already dead that is why his statement was admitted in evidence. Mr. Kusekwa, the learned Sate Attorney submitted that the statement of Mwajuma Mohamed (exhibit P4) was written by PW2. It narrates how the incidence occurred on 08/02/2008. In that statement Mwajuma testified that she saw the accused attacking his wife with panga. After the PW2 recording the statement in writing, he stated that he read over the statement to Mwajuma Mohamed and she appended her thumb print on every page, and there after the PW2 wrote his confirmation and signed at the end of the statement. The learned State Attorney persuaded the Court to rely on the decision of Vincent Ilomo’s case where the statement was used to convict the Accused. He added that even if the exhibit P4 would not have been tendered and received in evidence, the circumstantial evidence available would be enough to convict the Accused. The State Attorney was of the view that deceased was killed at her home compound. The witnesses testified that the deceased did not have any quarrels with anyone. The Accused also testified that he did not have any fights with his wife (the deceased). The learned State Attorney referred again the case of Vincent Ilomo at pages 29 - 30, in which the CAT cited the case of Page | 11 Chandrakant Joshubhai Patel v R Criminal Appeal No. 13 of 1998 at page 18 (unreported) where the CAT held that: “As this court said in Magendo Paul and Another v R [1993] TLR 219 quoting Lord Denning’s view in Miller v Minister of Pensions (1947) 2 ALL ER 372, also quoted by the learned trial judge in the instant case, remote possibilities in favour of the accused cannot be allowed to benefit him. If we may add fanciful possibilities are limitless, and it would be disastrous for administration of criminal justice if they were permitted to displace solid evidence or dislodge irresistible inferences.” Mr. Kusekwa continued to submit that it is apparent that the Accused was staying in the compound neighboured by his father’s house and Mwajuma Mohamed’s house. The only person who can be question regarding the death of his wife is the Accused himself. It was early in the morning and people were not awake. He argued that the Accused was living in that house. With regards to other contradiction, relating to the exhibit P3 (panga) whether it was with a plastic handle or wooden handle. Mr. Kusekwa, learned State Attorney submitted that it is true that while PW4 said the panga had wooden handle, PW2 said the panga had a black plastic handle. He argued that the PW4 stated that it was a wooden handle, but he did not tell the colour of the handle. It was his submission that PW2 who took the Panga to the exhibits’ custodian told the Court that it was labelled KAB/IR/86/2008 and glued the label on the panga’s handle. PW2 also testified that the said Panga was tendered before the High Court with the said label with case reference number as required by PGO 229. Mr Kusekwa Page | 12 referred back to PW2 testimony that the police label was removed by the Court at trial and replace by the court label. Mr. Kusekwa admitted that the PGO requires that the exhibit be labelled to avoid being contaminated while in Police custody. He argued that since this case has been heard and went to the Court of Appeal in the Criminal Appeal No. 54 of 2016 Court of Appeal at Tanga, where it ordered retrial. That previous trial proceedings and decision/judgment were judicial notice they needed no proof as per section 59(1)(d) the Evidence Act [Cap 6 R.E 2019]. Since the proceedings and judgment have Court seal. Therefore, we had no obligation to supply the defence with proceedings and judgment. Another weakness which the learned State Attorney tried to address is regarding the chain of custody, that it was broken, and the case of DPP v Stephen Gerald Sipuka (supra) at page 14. He vehemently argued that the Sipuka case and the case at hand are distinguished. The Sipuka case was about drugs which can easily be tempered with. In the present case, the exhibit is panga which cannot easily be tempered with. The support his argument he cited the case of Joseph Leornard Manyota V R Criminal Appeal No. 485 of 2015 (unreported) where the Court of Appeal held that it is not every time that when chain of custody is broken then relevant item cannot be produced and accepted by the Court as evidence regardless of its nature we are certain that this cannot be case say where the potential evidence is not endanger of being destroyed, polluted and or in anyway, tempered with where circumstances may reasonably show Page | 13 absence of such danger the Court can receive such evidence despite the fact that chain of custody has been broken. This will depend on the circumstance prevailing in a particular case. The State Attorney argued that in the present case the exhibit is Panga and there was no room to temper with it. And he exclaimed that there is no reason why that should be so, to incriminate the Accused? He prayed that the Panga (exhibit P3) be taken into consideration by the Court. Thereafter, Mr. Kusekwa turned to the issue of the colours of the handle of the panga whether black or not. He pleaded that such inconsistencies and contradictions are minor, as it depends on memory ability, time passed, etc. He argued that the Court will have to determine whether such inconsistency and contradiction is major or minor. However, he was quick to submit that the main issue here is whether there was a panga or not. All witness (PW2, PW3 and PW4) said it was panga. He then referred to the case of Chrisant John v R (supra) at page 20 where CAT held that it is undesirable to pick a sentence and leave others in deciding whether the contradiction or inconsistencies are minor or major. The learned State Attorney argued that the witnesses testified that the weapon was Panga. Therefore, the contradictions and inconsistencies were minor. Having submitted on the contradictions in the evidence, Mr. Kusekwa State Attorney (herein abbreviated as S/A) turned to attacking the testimony of the defence. The DW1 testified that he was not at his home. According to the learned S/A the Accused gave this testimony to exonerate himself from the liability that Page | 14 he committed the alleged offence. The counsel stated that the law requires the notice of alibi to be given before the matter comes for hearing. This means before Preliminary Hearing as provided for under section 194 (4) of the Criminal Procedure Act [Cap 20 R.E 2019]. But he also observed that the law allows under Section 194(5) of Cap 20 R.E 2019 that the notice of alibi may be given during the trial but before the closure of prosecution case. The State Attorney submitted that the Accused shall give alibi notice to the Court and the prosecution when the case comes for hearing. On this point, Mr. Kusekwa referred to the case of Kubezya John v R Criminal Appeal No. 488 of 2015 CAT at Tabora at pages 24-25 where the CAT held that: “we have given due consideration to the Accused person alibi he has raised, we see no plausible reason why it was not raised at the very outset at the time of the arrest on 22/04/2007. In that case the CAT quoted the case of Kibale v Uganda (1999) 1 EA 148, where it was held: that a genuine alibi is of course expected to be revealed to the police investigating the case or prosecution before trial. When it is so done, can the police or prosecution have the opportunity to verify the alibi. The alibi set up for the first time at the trial is more likely to be an afterthought than the genuine one.” The learned State Attorney submitted that the alibi raised was at the trial and the prosecution had no opportunity to verify the alibi brought. Moreover, the alibi given was not genuine because there was contradiction between the DW1 and DW2 the DW1 said they used a footpath and did not meet anyone, and they did not pass any village. Mr. Kusekwa argued that this was contradicted by the Page | 15 testimony of DW2 who said they passed two villages and met many people on the way though he does not remember their names. In the bush they met other people including Mawazo who knows the accused. Again, the DW1 on cross examination said they did not meet anyone on the way to the bush(forest). Mr. Kusekwa concluded that from the foregoing and prosecution evidence that it is their prayer that the accused be found guilty of the offence he is charged with. The defence counsel Mr. George Magoti’s submission was that the accused stands charged with murder charge c/s 196 of Penal Code [Cap 16 R.E 2019]. He argued that to prove their charge there are several ingredients that need to be proved: 1. There must any person who is charged 2. Who with malice aforethought (nia ovu) 3. have caused the death of another person 4. without lawful justification 5. he shall be guilty of murder Learned counsel Magoti submitted that basing on the above ingredients, and a person to be found guilty of any offence it must be proved beyond reasonable doubt. That is found under section 3(2)(a) of the Evidence Act [Cap 6 R.E 2019]. Again, under section 112 of the same Act, the law provides that burden of proof lies on the person who wish the court to believe his allegation. The prosecution has that burden in our case. Mr. Magoti submitted further that since murder is a serious offence which attract death penalty, the prosecution must prove the charge beyond reasonable doubt. Page | 16 This was held in the case of Nathaniel Alphonce Mapunda and Benjamin Alphonce Mapunda v R, [2006] TLR 395 at page 396. The burden of proof in murder charges is always lies on the prosecution. And the standard is beyond reasonable double. In criminal charges suspicion alone however grave cannot be the base of conviction. He went on submitting that the evidence from prosecution was brought by 4 witnesses and 4 exhibits. He was of the view that from PW1 to PW4 there was not witness who testified that they saw the Accused committing the offence. He argued that the evidence brought is circumstantial one. There is no direct witness. On this aspect he referred Nathaniel Alphonce Mapunda case, where it was held that suspicion however grave cannot be the base of conviction. Mr. Magoti argued that to rely on circumstantial evidence to warrant conviction it must be the credible evidence beyond reasonable doubt. In this case we are left with the statement of Mwajuma Mohamed (exhibit P4). Defence counsel Magoti explained further that the exhibit P4 was reduced into writing by PW2 who testified in this Court that Mwajuma Mohamed did not know how to read and write. And that’s why Mwajuma Mohamed did append her thumb stamp. Learned counsel argued that looking at the statement of Mwajuma Mohamed there is not section in that statement which stated that the statement was read out to her. It is the law that the statement must be read over to the witness who does not know how to read and write. We cannot therefore be sure if that statement is of Mwajuma Mohamed or not. Page | 17 With regards, to exhibit P3 that is Panga, advocate Magoti concentrated on chain of custody. He submitted that the chain was broken. There is no proper documentation. It is not clear how that exhibit was collected from the crime scene. The prosecution did not bring any exhibit register to show how the same was managed. The counsel went on arguing that, the exhibits custodian was not brought as a witness before this Court. Learned counsel Magoti referred the Court to PGO No. 229 items 8, 12 and 14 have not been complied with. These provisions require any exhibit must be labelled. Under item 12 any exhibit must move or be transferred with its label. The exhibit must have the number of case file (minor offence docket number). He added that the exhibit brought before this court lacked these requirements. What we saw here was the exhibit with High Court stamp. He argued that the High Court does not keep police exhibits. It only receives exhibits from the police during the trial. To make matters worse the prosecution did not bring the trial proceedings of the High Court where the purported exhibit was received. Mr. Magoti argued regarding contradiction surrounding exhibit P3. He referred to the PW4 Salehe Selemeni who disputed the exhibit P3 (panga), that he did not see the plastic handled panga at the crime scene. He saw the wooden handled Panga On chain of custody, the learned defence counsel referred the Court to the Court of Appeal decision which regarded chain of custody as an important matter. This was the position in the case of DPP v Stephen Gerald Sipuka, Criminal Page | 18 Appeal No. 373 of 2019 at page 14, the CATwhile citing its own decisions in Joseph Leonard Manyota v R, Criminal Appeal No 485 of 2015 and Chacha Jeremiah Murimi and 3 Others v R, Criminal Appeal No. 551 of 2015, and landmark case of Paulo Maduka and 3 Others v R, Criminal Appeal No. 110 of 2007 where it defined chain of custody means: “By chain of custody we have in mind chronological documentation and or paper trail, showing seizure, custody; control, transfer, analysis and disposition of evidence, be it physical or electronic. The idea behind recording of the chain of custody, it is stressed, is to establish that the alleged evidence is in fact related to the alleged crime rather than, for instance having planted fraudulently to make someone appear guilty.” The defence counsel submitted that although the exhibit P3 has been received in evidence it should not be used to convict the Accused because its handling was improper and went against the law. The learned counsel said even if the said exhibit was used to commit the offence, the investigator did not take the said Panga for forensic investigation to confirm the fingerprints to be that of the Accused. Again, the said exhibit was not sent to the government chemist for examination of the blood stains to confirm if it was that of the deceased. Mr. Magoti submitted that what we are left with is suspicion. And suspicion however strong cannot be the base of conviction. Turning to the evidence of the defence, Mr. Magoti argued that the DW1 relied on alibi. He was not at the crime scene. The notice was also given for reliance on Page | 19 alibi. Further the testimony of the DW1 was corroborated by the testimony of DW2 which testified that they went for charcoal making. It was his submission that if there are any weakness in the defence evidence that cannot be used as a reason for conviction. He then referred the Court to case R v Kerstin Cameron [2003] TLR No. 84 at page 85, where the High Court held that an accused can be convicted based on strength of prosecution evidence and not weakness in the defence testimony. Finally, he remarked that there are weaknesses in the prosecution case, these should be the basis for acquitting the Accused. He prayed that the Court should not look at the weakness of defence case. Following the closure of the learned counsels’ final submissions the Court proceeded to sum up the case to the Hon. Assessors. All three Assessors were of the opinion that the prosecution case was doubtful. They pointed out to some weak points (failure to bring eyewitness Mwajuma Mohamed to testify, failure to explain the whereabout of Mwajuma’s husband, failure to subject the exhibit P3 (panga) for forensic examination to identify the confirm whose finger print were in the handle of the panga, failure to take to that exhibit to the government chemist for examination of the blood stains to confirm if it was that of the deceased, and that the Accused clothes had no blood stains) that raised doubts and concluded that the prosecution have failed to prove the case beyond reasonable doubt. Page | 20 The issue before this Court is whether the prosecution proved the charge beyond reasonable doubt as required by the law? It was stated in Jonas Nkize v R [1992] TLR 214 that in any criminal trial the prosecution has a duty to prove the charge beyond reasonable doubt. To warrant conviction in a murder charge the prosecution must prove the ingredients of the offence as per Section 196 of the Penal Code [Cap 16 R.E 2002]. It was also stated in R v Masunga Nzengo Criminal Session No. 14 of 2019, High Court of Tanzania, Tabora District Registry at Nzega (unreported) at page 13 that the ingredients of murder are: 1. That there is death of a person 2. That the death was caused b an unlawful act or omission of the accused. 3. That in causing the death the accused acted with malice aforethought. In the present case there is no doubt that the deceased (Rehema Rashid) is dead. The exhibit P1 (the post – mortem report) showed that the deceased is dead. The four prosecution witnesses (PW1 – PW4) all confirmed that they saw Rehema Rashid’s dead body. They also testified that the deceased had cut wounds on the neck, shoulders, and arms. The cause of death as shown in the exhibit P1 - postmortem report is that the deceased had cut wounds on the neck, shoulders, and arms. Some of these wounds were deep and open fractures of the bones were seen. The immediate cause of death as per exhibit P1 was severe loss of blood. Briefly, the evidence adduced as hereinabove showed proved that the deceased, Rehema Rashid is dead. Page | 21 The next issue is whether the death of the deceased was caused by an unlawful act or omission of the accused. For that matter a proof is required to show that death was caused by unlawful act of the accused. We are examining the causation of the death. Under section 196 of the Penal Code [Cap 16 R.E 2002] the accused may be held responsible for causing death if his act or omission led to the death of deceased. Under section 203 of the Penal Code [Cap 16 R.E 2002] causing death is defined. It includes an act of inflicting grievous body harm on another person and consequently the victim undergoes surgery, and which ultimately may cause his death. In establishing actus reus for murder it was held in R v Masunga Nzengo (supra) that the Court should consider: (a) Whether the accused did the act or omitted to do a legally recognized duty. (b) Whether the act was deliberate (c) Whether the act was unlawful as opposed to killing in self defence (d) The act was as a significant cause of death (e) Whether the death was of a person (human being). In the case at hand the prosecution had a duty to prove that it was the accused who unlawfully caused death of or grievous harm on the deceased. In that regard, the Court has to examine the evidence adduced and ask itself whether the accused used a panga (exhibit P3) to inflict injuries on the deceased? This issue should be addressed because there is only one vital evidence that is exhibit P4 – a statement of Mwajuma Mohamed. The latter is the eyewitness who stated that she saw the accused attacking the deceased with a panga. All prosecution Page | 22 witnesses (PW1 – PW4) gave a hearsay account of the incidence as they were told by Mwajuma Mohamed. In exhibit P4, Mwajuma Mohamed is recorded to have stated to PW2, the recorder of the statement that on 08/02/2008 at around 7:00 A.M. she heard Rehema Rashid the wife of the Accused screaming for help, Mwajuma rushed to the house of the Accused only to find that the door is closed. She used a piece of heavy wood to break open the door. Thereafter, she saw the Accused holding in one hand the deceased hands and on the other hand holding a Panga. She narrated further that she saw the deceased bleeding on the neck, shoulder, and arms. She then asked the deceased to run. On hearing that advice she attempted to run, and the Accused chased her and continued to assault her with the Panga. The deceased fell and later she died. Mwajuma also saw the Accused running into the bush. It is unfortunate that this star witness (Mwajuma Mohamed) was not brought before the Court to testify. I am saying so with understanding that the prosecution attempted to look for her and the summons was returned to the Court. Moreover, the prosecution witnesses testified that Mwajuma Mohamed after being divorced she moved to an unknown place. While I am alive to the caution the Court of Appeal gave in Vincent Ilomo’s case (supra), and the case of Chandrakant Joshubhai Patel v R, Criminal Appeal NO. 13 of 1998 (both unreported) the mystery surrounding the eyewitness, Mwajuma Mohamed, especially the prosecution’s failure to bring her to testify is conspicuous. How can a person who was married, and her divorced husband is alive and having relatives all around become untraceable? It may be asked, did Page | 23 Mwajuma Mohamed not have parents or relatives even from other villages where her whereabout could be traced? While the law under Section 34B of the Evidence Act [Cap 6 R.E 2019] allows admission of the witness statement, and according to Vincent Ilomo’s case it is possible to convict a person basing on the witness statement, the Court must warn itself on the danger of such conviction. I am of the view that in Vincent Ilomo’s case the witness (Reginald Msemwa) was dead. Again, the Accused confessed before that witness (justice of peace). Unlike the situation in that case, in the present case the witness is alive, and the efforts made to procure her does not show that her relatives were traced to point where she might be. When statement is received under Section 34B of the Evidence Act [Cap 6 R.E 2019] the Court does not have an opportunity to see the demeanor of the witness and the defence cannot cross examine him or her. The existence of a quarrel is a piece of evidence from the DW1 that was not contradicted, and it was admitted by Mwajuma Mohamed in her statement that they had quarreled before with the Accused. Mwajuma Mohamed was alleged to steal chicken eggs from the Accused’s house. It is unclear whether that could be a motive for framing the Accused. It was also evident that PW2 who wrote and tendered Mwajuma Mohamed’s statement, did not show anywhere in the statement (exhibit P4) that Mwajuma being a person who does not know how to read and write, read out the statement to her so that she could approve the content. The prosecution insisted on the presence of Mwajuma Mohamed’s thumb print as evidence of approval of the Page | 24 content of the statement. Nevertheless, the law requires the same to be read out to the person who is giving the statement. As for the PW1 who together with his colleagues arrested the Accused, he testified that he heard from the VEO and the Police that the Accused is a wanted person for murdering his wife. He thus did not see the accused killing his wife. The PW2, PW3 and PW4 all these were told by Mwajuma Mohamed that the Accused killed his wife with a panga. There were also contradictions as to some pieces of evidence. I will state this shortly. With regards to exhibit P3 (panga). The PW2 and PW4 contradicted each other on the handle of the panga whether it was wooden or plastic. Indeed, there is not dispute that the deceased was killed by a sharp object which may mean panga as it was found on the crime scene. However, it is unclear whether the said panga had the plastic handle or wooden one. PW4 said the panga he saw at the crime scene had a wooden handle. The PW2 testified that the panga had a black plastic handle. The DW1 did testify that he had a small panga with wooden handle. While citing Mohamed Said Matula’s case (supra) the prosecution argued that this was a minor contradiction because there is no dispute that the deceased was attacked by panga. I agree with the prosecution that such discrepancy is minor after all the PW4 did not state the colour of the wooden handle of the panga. The defence counsel fiercely argued that the exhibit P3 had a lot to be desired. It was not sent for fingerprint forensic examination, which could have confirmed Page | 25 whose fingerprints are found in the panga. That finding could have either corroborated statement of Mwajuma Mohamed or contradicted it. Although the law does not require corroboration of testimony of eyewitness, it is my view that the circumstance of this required such corroboration because the eyewitness was not brought to testify only her statement was tendered. The defence counsel also rightly faulted exhibit P3 that it was not taken to the Chief Government Chemist for examination of the blood stains in the Panga which could have confirmed whether it was the deceased blood. The learned counsel also argued that in as far as the exhibit P3 is concerned the chain of custody was broken. The basis of his argument is that the PGO 229 was not complied with. The PGO require the exhibit such a panga to be labelled by the police before tendering before the Court. In the present the exhibit was brought without having the police label. It had the Court label indicating the exhibit number and Court stamp. The prosecution argued that the exhibit (panga) could not have the police label because it was removed by the Court, and it was replaced the Court exhibit label. That was so because this a retrial. The case went to CAT where retrial was ordered. The defence counsel protested that if it was retrial, they were entitled to be given Court judgment and proceedings. The learned State Attorney said that they were not obliged to do so because it is a matter of judicial notice. While I concur with the prosecution Court decisions are matters of judicial notice the copy proceedings as of right should be given to the defence. It is also intriguing that the Court removed the Police label on the exhibit. This is an abnormal practice. It would have been possible to leave police Page | 26 label and annex the court exhibit mark. Regardless of being afresh trial or retrial, PGO should be complied with. Unless the exhibit is disposed for which the exhibit disposal order must be provided, I find the PGO has to that extent been violated. Thus, the chain of custody of exhibit P3 is questionable, and hence the chain of custody might have been broken. Although the prosecution said panga did not require strict adherence to chain of custody rules as it cannot easily be contaminated, I think this is a misconception. Chain of custody is not meant for drugs cases only. Nevertheless, the level of documentation or paper trail certainly various from one case to another. The Accused on his side gave a defence that he was not at the crime scene. He went to Kweindidi forest to prepare charcoal furnace with his brother on 07/02/2008. On his way back home on 09/02/2008 he was arrested. However, there is contradiction as to his testimony and that of DW2. They contradicted each other. While DW1 said he did not cross any villages or seeing anybody on the way to the bush/forest, DW2 said they crossed two villages and met many people on the way. Despite such weakness, suspicion however strong cannot be used as a base for conviction. This was stated in Nathaniel Alphonce Mapunda case. Moreover, it was stated in R v Kerstin Cameron [2003] TLR No. 84 at page 85 also held by the Court of Appeal in Zabron Msua v R, Criminal Appeal No. 7 of 1979 (unreported) that the Accused can be convicted based on strength of prosecution case not because of his weak defence. Thus, although the Accused may be a liar that cannot be used to convict him. However, such lie could solidify the prosecution case. Page | 27 To conclude on the second issue as to whether the Accused caused death of the deceased, apart from Mwajuma Mohamed’s statement (exhibit P4) which says that she (Mwajuma Mohamed) saw the Accused killing his wife with a panga, other witness (PW1 – PW4) gave hearsay testimony on this point. They did not see the Accused killing his wife. Therefore, it is difficult to conclude with certainty that the Accused killed the deceased. Apart from the statement of Mwajuma Mohamed (exhibit P4) we are left with circumstantial evidence. It was stated in R v Shinon Nkwabi Criminal Session No. 144 of 2016, High Court of Tanzania Mwanza District Registry at Geita (unreported) that to warrant conviction in a case where the large portion of evidence is circumstantial the Court must be satisfied that the circumstantial evidence adduced is devoid of any other explanation other than the guilty of the Accused. This is hardly so in the present case. The danger of convicting Accused based on circumstantial evidence was also amplified in the case of Shaban Mpunzu @Elisha Mpunzu v R, Criminal Appeal No. 75 of 2002, the Court Appeal of Tanzania (unreported). I should add that exhibit P4 – Mwajuma Mohamed’s statement which was admitted in evidence presented a difficulty. It was a statement recorded by PW2, who knew that Mwajuma Mohamed did not know how to read and write. Therefore, the PW2 was duty bound under the law to state in the statement the accused being a person who does not know how to read and write, he (PW2) read the statement out loudly to her so that she confirms the content of the said statement. It is not enough to append the thumb sign of the statement maker. Page | 28 The purpose of reading out the statement to the maker is to avoid adding or leaving out certain information. I am of the settled view that failure to include a clause/paragraph that the statement was read out to the maker before endorsing by thumb print is fatal. The third ingredient of murder that the Court examined is malice aforethought. The mens rea of murder is what is termed malice aforethought. It is the intention or knowledge of the wrongful act that constitutes an offence. Section 200 of the Penal Code [Cap 16 R.E 2002] provides for ingredients of malice aforethought: (i) There was an intention to kill or to cause grievous body harm regardless that the person is killed or otherwise. (ii) That the person who did the act know that the act will cause death or grievous body harm. The CAT has in among other cases the case of Chrisant John v R Criminal Appeal 313 of 2015 CAT at Bukoba held that in murder malice aforethought is established by considering the following: (i) Weapon used (ii) Force used (iii) Body part attacked (iv) Number of blows (v) Nature of wounds inflicted on the victim (vi) Attitudes or behaviour of the Accused before and after the incidence. Page | 29 In the present case, a weapon used as per exhibits P1, P3 and P4 is Panga. That is a dangerous weapon. The force used is equally big considering the postmortem report (exhibit P1) which indicated that there were open wounds that showed fracture bones. To break a bone means the force used was big. The body parts attacked are also sensitive, the head, neck, shoulders, and arms. There were blows in the neck, shoulders, and arms. They were deep cut wounds, and the fractured bones were visible. Despite the presence of traces of mens rea drawn from weapon used, force, body parts attacked and nature of wounds visible on body of the deceased, it still the unclear who did the unlawful act (murder). Before I turn to the next ingredient of murder, it is important to revisit the Vincent llomo’s case where the CAT held that conviction may be based on witness statement. There is an important point that should be stated, first, the Accused in Vincent Ilomo’s case confessing killing his wife two persons (the Hildegat Mgani and Reginald Msemwa). Hildegat Mgani was Accused’s mother whose statement though was expunged from records because it violated section 34B(2)(f) of the Evidence Act. On the other Reginald Msemwa who was a justice of peace his statement was intact, and conviction was based on it. Unlike in the case at hand in Vincent Ilomo’s case there was confession made by the Accused. The Court of Appeal at page 23 cited its own decision in the case of Elias Melani Kivuyo v R, Criminal Appeal No. 40 of 2014 (unreported) and Manyanda Ncheya v R Criminal Appeal, 437 of 2017 Court of Appeal, where it held that failure to read out the statement to the maker who is illiterate is fatal and the statement was expunged. Looking at Mwajuma Mohamed’s Page | 30 statement (exhibit P4) it was indeed certified by the PW2. But unfortunately, the PW2 did not include a phrase or clause that he did read out to the statement to Mwajuma Mohamed who was an illiterate maker of the statement. Basing on the decision of Court of Appeal in the cases of Vincent Ilomo, and Elias Melani (supra) I proceed to expunge the exhibit P4 from the Court records for violating Section 34B(2)(f) of the Evidence Act [Cap 6 R.E 2019]. As for attitude of the Accused it is difficult to say with certainty because the Accused claimed alibi, which was not clearly displaced. It was not contradicted or discredited by the prosecution save for the few contradictions in DW1 and DW2 testimonies. Although the prosecution contended that the alibi was given during the trial, and they had no time to verify it as per Kabale v Uganda’s case (supra), Section 194(5) of the Criminal Procedure Act [Cap 20 R.E. 2019] allows alibi notice to be given during trial before closure of prosecution case. PW1 testified that the Accused after seeing him he started fleeing. But this was uncorroborated with any other witness. Given the two days of his disappearance and since he was arrested about 3 kilometres on the way to his home. The Accused had ample time if had he chosen to disappear either to Kabuku or any other place. From the foregoing, I must admit that it has been difficult to establish with certainty that the Accused murdered his wife (Rehema Rashid). And since exhibit P4 (Mwajuma Mohamed statement) was in contravention of the law (Section 34B(2)(f) of the Evidence Act [Cap 6 R.E 2019]), and as it was held in the case of Page | 31 Manyanda Ncheya v R, Criminal Appeal No 437 of 2017 at page 11) it has been expunged from records. Consequently, we are left with doubtful circumstantial evidence. My keen consideration of prosecution evidence has not managed to clear the doubts. As shown herein above there are still doubts lingering, not doubts as to his innocence but rather to his criminality. I am of the view that it is unsafe to convict a person while there are such doubts. I therefore decline to hold that the charge against the Accused has been proved beyond reasonable doubt. Like the Hon. Assessors I find him not guilty. And I acquit him from the charge of murder. I order the Accused be set free unless otherwise held for other lawful reasons. DATED at KOROGWE this 22nd Day of November 2021. U. J. AGATHO JUDGE 22/11/2021 Date: 22/11/2021 Coram: Hon. Agatho, J Appellant: Present Respondent: State Attorney B/C: Jumanne Page | 32 Court: Judgment delivered on this 22nd day of November, 2021 in the presence of the Accused person, advocate Mathias Nkingwa holding brief of advocate George Magoti, and Mr. Paul Kusekwa and Sarah Wangwe prosecution State Attorneys. U. J. AGATHO JUDGE 22/11/2021 Court: Right of Appeal fully explained. U. J. AGATHO JUDGE 22/11/2021 Page | 33