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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 180 OF 2022 ____________________ REPUBLIC VERSUS EDWARD JACKSON NYAGAWA JUDGEMENT Date of last order: 12th September 2024 Date of Judgement: 19th September 2024 MTEMBWA, J.: The accused herein stands arraigned for the offense of Murder contrary to sections 196 and 197 of the Penal Code, Cap 16, R.E 2019 (now R.E 2022). It was alleged that on 21st May 2020, at Kibiki Village within Bagamoyo District in Coast Region, the accused murdered one JOHNSON GODFREY MTUI. According to the facts, the accused was a turnboy in May 2020 in a Motor vehicle registered as T515 DSM make Scania with a trailer registered as T996 DSE. The deceased was a driver of the named motor vehicle. On a fateful day, at night hours, the accused and the deceased were sleeping in the said vehicle. While sleeping, the accused woke up, took a wheel 1 spanner from the toolbox and attacked the deceased on his forehead. He also stabbed the deceased with a knife on his head, resulting into severe bleeding. Thereafter, the accused drove the vehicle to his sister one, RAHEL JACKSON NYAGAWA, where he left two tires and canvas. By that time, the body was in the said vehicle. The facts reveal further that the accused drove the said vehicle to Kibiki area within Bagamoyo District in Coast Region, where he abandoned it on the roadside. This act was witnessed by the police officers who were on patrol and accordingly informed their superiors. Having inspected the vehicle, the body was discovered therein. An autopsy was conducted on the deceased’s body and the report on post-mortem examination (Exhibit P1) revealed that the cause of the death was due to Severe Traumatic Brain Injury. The accused pleaded not guilty to the charge. Consequently, the Republic fronted eight (8) witnesses and tendered three (3) exhibits. The Accused relied on his sworn testimonies and tendered no one exhibit. In the conduct of this matter, on various occasions, Ms. Betha Kaaya, Mr. Ditrick Mapunda and Ms. Caroline Matemu, both learned state attorneys, appeared for the Republic. Similarly, Mr. 2 Steven Rocky, Ms. Neema Saruni, Ms. Maria Mwanjwango, Yusuph Mkanyali, and Mr. Joseph Mafie, both the learned counsels, appeared for the Accused person. Therefore, I will look into the evidence adduced by both parties. According to PW1, Sudi Rajabu Msakamali, who introduced himself as a medical doctor at Msoga Hospital in Chalinze District, was at his duty station on 21st May 2020. A Police officer then approached him from Chalinze Police Station and was required to conduct a postmortem examination of the deceased’s body. He carried masks, Gauze, and Stethoscope to the area of the scene. Having arrived there, he found a Motor vehicle (Lorry) alongside the road. Being directed by a police officer by the name of Hilali, he entered the vehicle through the front door. PW1 continued to note that, inside the said Vehicle, there was a bed behind the driver’s seat where he saw a male body lying thereon. He then started to examine it. He witnessed blood clots oozing from the head. He also saw two cut-deep wounds on the head, one at the front and another at the occipital bone. The injuries were 3 centimeters deep and wide. In the end, I discovered that the cause of the death was due to excessive bleeding. In the course, he looked 3 at the pulse rate (blood speed flow) and also discovered that pupils were fully dilated, meaning that the person examined was already dead. PW1 testified further that the cut wounds were caused by a sharp object. He came to know that the deceased’s names were Johnson Godfrey Mtui having read the Identity Card with a picture on it that was found in the said vehicle. Having examined as such, he prepared a Post-Morten Examination Report that was tendered as Exhibit P1. When cross-examined on Exhibit P1, PW1 testified that the cause of death was due to SEVERE TRAUMATIC BRAIN INJURY. Re-examined by the learned state attorney, PW1 testified that he examined the body approximately six hours after the death. PW2, Lumumba Andrea Mtui alias Godfrey Andrea Mtui, is the deceased’s father. He testified that the deceased used to drive his motor vehicle, make Scania R440 model, registered as T515 DSM with a trailer, registered as T996 DSE used to carry timber from Mafinga to Dar es Salaam. On 29th April 2020, he was at home in Kondoa District when his Son, Johnson Godfrey Mtui, the deceased, and his turn boy, Edward Jackson Nyagawa, the accused, came. They both told him they were going to Mafinga to load timbers to Dar es 4 Salaam. He allowed them. Then, they traveled to Mafinga and they communicated with him through cellphones all the time. Sometimes, he communicated with the deceased and when not reachable, the accused. They managed to road timbers to Dar es Salaam. On 21st May 2020, he called the deceased to give him directives to load cement cargo to Kahama District. However, he was not picking up the calls. He then decided to call his turnboy, the accused who also did not pick up the calls. By that time, he was still in Kondoa District. After that he received the text message which reads “kutokana na kibuli cha mwanao, sikubudi kutenda. Kibuli cha mwanao ndo kimemponza. Anza na chalinze”. The text message was sent to him through the deceased’s cell phone. He reported it to the police officers at Kondoa Police Station who also called Chalinze Police Station. It was reported from Chalinza Police Station that there was a motor vehicle with a body inside. It was reported further that the body was taken to mortuary at Mlandizi Hospital. He then instructed Alen Jackson Mtui to make follow-ups. He insisted that he was calling the accused, but he was not reachable because he thought the deceased was with him. He then went to Moshi from Kondoa District, where the deceased’s body was 5 buried. The accused never attended the burial ceremony. He suspected the accused to have killed his son, the deceased. Cross- examined by the defense counsel, PW2 testified that he was not present during the trip to Mafinga. He conceded to have not seen the accused killing the deceased. Re-examined, PW2 testified that he believed that the accused was the one who killed his son because they were together all the time. PW3 one G. 5230 CPL Jamal testified that on 21st May 2022, while at Chalinze, Kibiki area, with his fellow Police officers, suddenly, along Dar es Salaam – Morogoro road, he witnessed a motor vehicle losing its direction. By that time, there was a light with the help of the sunshine. The said vehicle had a blue cabin. He saw a person jumping outside the said vehicle. He told his fellow Police, CPL Ayoub, what he witnessed, and both of them went closer to the vehicle only to note that the vehicle was still on. Having arrived, they looked inside the vehicle through the front window and could not see anyone. The motor vehicle was registered as T515 DSM, and the trailer was registered as T 996 DSE. As instructed by CPL Ayoub, PW3 looked inside the vehicle and noted that the driver’s seat had no one on it, but behind it, there was 6 a body lying on a bed. He could not quickly identify his gender as his face could not be seen clearly. There were blood clots under the said bed. He then reported back to CPL Ayoub. Since there was a disease eruption, he was instructed not to do anything. Twenty minutes later, Afande Hilali came with a Doctor. With the help of by-passers, the door was opened. He came to realize that the body belonged to a male person. He also witnessed the same being taken to the mortuary. On cross-examination, PW3 insisted that in the proximity of 200 meters, he saw a person jumping from the vehicle that had lost its direction. Still, he could not identify him or her. He went closer to the vehicle together with CPL Ayoub, DC Nisabule, and WP Salma. He conceded not to know the person who killed the deceased. Re- examined by the learned state attorney, PW3 testified that the deceased’s face was not familiar to him. On his part, PW4 one H.1395 CPL Sadam Athuman Omari testified that on 29th May 2020, he was instructed by OCD Hussein of Chalinze Police Station to go to Dodoma Region and arrest the accused who was suspected of murdering one Johnson Mtui, the deceased. He was informed that the deceased was a driver who used 7 to drive his father’s Vehicle. He was then given a movement order to Dodoma. On the same day, he traveled to Dodoma and reported to Dodoma Central Police Station and was given two other police officers to assist him. These were SGT Gerald Mwigila and PC Abuu. On 30th May 2020 at 12:15 p.m, they managed to arrest SAMWELI LEONARD who was the accused’s young brother. In an interview, he admitted that the Accused person was his brother and was living with him. PW4 continued to testify that; the said Samweli told them that on 21st May 2020, he was called by his sister Rahel to go to Dar es Salaam to pick up two tires and one canvas left by the Accused. He went to Dar es salaam on 24th May 2020 and collected the tires and canvas. But the sister, one Rahel, narrated the whole story to Samweli in respect to the killing of Johnson Mtui, the deceased. He sold the tires at Tanzanian Shillings at 700,000/= at Morogoro, and a canvas was sold at Dodoma at Tanzanian Shillings at 400,000/=. He directed them where the said Rahel could be located, and ultimately, she was also arrested. During the interview, Rahel did not know where the accused could located. He adimitted that on 21st May 2020, the Accused came to her home with two tires and one Turbary. The accused also 8 narrated to her everything about the killing of Johnson Mtui, the deceased. They had then to continue searching for the Accused. In the course, through the relatives, they came to know he was at Masa Ward in Dodoma. On 2nd June 2020, PW4 travelled to Mpwapwa and reported to OCD. One PC Justine Msuka was assigned to help him. On 3rd June 2020, they traveled to Masa Ward and arrived at around 15:00 hours in the afternoon and reported to the Ward Executive Officer (WEO). They showed the Accused’s picture to WEO and the face looked familiar to him. Thereafter, they moved to Ipera Village and reported to the Village Executive Officer (VEO). The VEO told them that the Accused was there at the office one day before. According to VEO and WEO, the Accused introduced himself as the miner (mchimba madini) and requested refuge in VEO’s House for one night, and in the morning, he gave him Tanzanian Shillings 1,000/=. They were directed to where the mining activities were conducted. At the area where the mining activities were conducted, they showed the accused’s pictures to the miners, and they identified him. The miners told them that the Accused was there few hours ago, but having taken lunch, he disappeared heading to Masa Ward. They had 9 then to go back to Masa. He testified further that the accused was arrested on 3rd June 2020 at Masa Ward at around 19:40 hours. Having arrested him, they left to Mpwapwa District, where the Accused was remanded at Kibakwe Police Station. On 4th June 2020, with the Accused, they went to Mpwapwa District Police Station. Having arrived there, on the same day, they left to Dodoma Central Police, where there were two other suspects, Rahel Nyagawa and Samweli Leonard. On 5th June 2020, they moved with the three of them, including the Accused, to Chalinze Police Station. He identified the Accused from the dock. PW5 one G.1929 CPL Mohamed Mungwana is the vehicle inspector. He testified that on 19th August 2020, he was at Chalinze Police Station when the head of the investigation department, ASP Salehe, called him. He instructed him to inspect the vehicle involved in a murder case to understand its roadworthiness. The vehicle was make Scania (truck) registered as T515 DSM with a Trailer registered as T996 DSE owned by Lumumba Andrew Mtui (PW2). By that time, the vehicle was at Chalinze Police Station. He inspected the vehicle system, including road wheels, gearbox, engine, and the outer body. Ultimately, He discovered no mechanical defects or malfunctions in the 10 vehicle. Having satisfied himself, he filled in Police Form No. 93 and the owner signed it. The said form was tendered as Exhibit P2. PW6 one Hashimu Bugala Daudi was a Magistrate at Chalinze Primary Court. He testified that on 9th September 2020, around 13:00 hours in the afternoon, one D/CPL Willy Siwale, accompanied by the Accused by the names of Edward Jackson Nyagawa, came to his officer/chamber. He was told that the Accused wanted to confess voluntarily. After that, the Police officer went out of his chamber, and he was left with the accused person. He introduced himself to the Accused that he was a justice of peace and that he should be free from any fear. He explained the right to call a relative, friend, or lawyer to witness the confession, and he replied that he had none. He said he understood the Kiswahili Language. PW6 then inspected the Accused’s physical body and discovered that he had no injury. He also admitted to having not been compelled to confess. He also cautioned him that his confession may be used in court against him. After that, he recorded his confession. According to PW6, the Accused confessed as follows: that, on 19th May 2020, around 19:00 hours in the evening, himself and the deceased were offloading the cargo at Kigamboni, Dar es Salaam. 11 They agreed then to load the cement cargo at Kurasini in Dar es Salaam. On the way, before reaching Kongowe, they refueled the Vehicle at a certain Filling Station. Having left the Filling Station a few meters away, the deceased stopped the Vehicle and decided to rest. They all slept on the beds behind the driver’s seat in the same vehicle. The Accused slept on the top while the deceased slept on the lower bed. At around 21:00 hours at night, the deceased fell asleep. The Accused woke up, took a spanner from the tools box, and hit the deceased on his head near the light ear. The deceased was then bleeding profusely. Ten minutes later, the deceased gave out abnormal sounds (alikuwa anakoroma) and then died. Having done that, the Accused took the bed sheet and covered the injured parts of the head. Thereafter, he drove the Vehicle to Sabasaba Area in Dar es Salaam with the deceased’s body inside. Having arrived there, he dropped two spare tires to his sister, one Rahel Nyagawa. When the sister asked, the Accused said that the same were given to him by the deceased. He promised to come back for the tires the next day. The Accused then started his journey to Chalinze via Dar es Salaam – Morogoro road. Upon arriving at Kibiki area at Chalinze, he took a piece of stone and inserted it into the 12 vehicle’s accelerator pedal and then jumped out of it. He also took with him Tanzanian Shillings 200,000/= that belonged to the deceased and flew to Dodoma Region. When he was in transit, he was called many times by the deceased’s relatives, including his father (PW2). He did not pick up any of the calls. The Accused continued to confess before PW6 that, having arrived at Dodoma, he stayed there for two days and thereafter moved to Mbuyuni in Ruaha, Iringa Region. While there, he communicated with his young brother Samweli Benald and instructed him to go to his Sister Rahel Nyagawa at Sabasaba, Mbagala in Dar es Salaam, and pick up the two tires he left and have the same sold. He told PW6 that the two tires were sold by Samweli Benald at Tanzanian Shillings 700,000/= at Chalinze. The said Samweli was then instructed to send Tanzanian Shillings 100,000/= to him and the balance to his sister Rahel Nyagawa. After that, his sister Rahel Nyagawa was instructed to send to him the sum of Tanzanian Shillings. 200,000/=. According to PW6, the accused confessed further that he had stayed at Mbuyuni for two days and then moved to Masa Village. While at Masa, three militiamen came and asked him whether he was Edward Jackson Nyagawa, which he answered correctly. Thereafter, 13 they arrested him. His hands were handcuffed by using a belt. On the way to the Masa Village Office, they met a Police officer named Sadam. He removed the belt and handcuffed him. He was then transferred to Chalinze Police Station. PW6 added that the accused came to his office directly from the Chalinze Police Station. He recorded his confession in his handwriting and gave it to the Accused to go through it. Thereafter, he affixed his signature on every page and was handled back to Willy Siwale, a police officer. It was regrettable that the Extra Judicial Statement was not admitted. It was the testimony further of PW6 that, during the confession, the Accused was always repenting for what he did to the deceased due to his ego and ambition to get money. On cross-examination, PW6 was led to tender his witness statement as Exhibit D1. On further cross-examination, PW6 testified that in his witness statement, there was nowhere he mentioned that the relatives were making calls to the accused. Similarly, there is no statement that the sum of Tanzanian Shillings 100,000/= was sent to him. He refuted the assertion that he fabricated the information in his witness statement. Re-examined by the learned state attorney, PW6 testified that his witness statement cannot contain all the information. 14 He reiterated the rights he explained to the Accused before recording his confession. PW7, G9676 CPL Noel, was also a Police Officer at Chalinze Police Station who testified that, on 5th June 2020, he was instructed by ASP Njama to record the Accused’s Caution Statement. When the Accused was before him, he introduced himself to him. The accused was not ready because he was tired due to the long journey. He then handed him back to Afande Ifuguto, who returned him to the Cell. On 6th June 2020, in the morning, the Accused was brought before him by Afande Stanley from the lockup for recording his Caution Statement. The Accused again refused for the same reason that he was tired. He was then returned to the lockup. On the same day, around 16:00 hours in the evening, the Accused was brought before him for recording his Caution Statement. This time, he was ready. As such, he introduced himself to him. He also reminded him of the accusations he was facing. He also informed him that he can call a relative, friend, or advocate to attend the interview. He was not ready to call anyone. PW7 then narrated what he was told by the Accused: that the Accused was born at Mpwapwa, Dodoma. He is the third to be born 15 among the six blood relatives. He was employed as a turnboy by the company named Zaburi 23, which is owned by PW2. The vehicle he was working on used to be driven by PW2’s son, the deceased. The Accused narrated to him further that he happened to be terminated from employment by PW2 and went back to Dodoma. While there, he was called by the deceased, who wanted him back to the job. He agreed. The Accused was then picked up at Dodoma by the deceased on the way to somewhere. According to PW7, the vehicle loaded the cargo to Kigamboni in Dar es Salaam for the last time. Having offloaded the cargo, the deceased decided to rest inside the vehicle, where there were two beds (double-decker) behind the driver’s seat. The deceased slept on the lower while the accused slept on the upper bed. At around 21:00 hours at night, the Accused woke up, opened the tools box, picked up a wheel spanner and attacked the deceased on the light side of his head. The deceased was complaining, but the accused took a knife and stabbed the deceased at the back of his head. Having seen that the deceased was no longer responding while also bleeding profusely, he covered his head with a bed sheet. 16 The accused also told PW7 that, having done that, he then drove the motor vehicle with the deceased’s body inside up to Chalinze. Having arrived at Chalinze, he parked the vehicle and inserted a stone into the accelerator pedal. While the vehicle was moving, he jumped out of it. The vehicle then lost its direction. While on the way, he sent a text message to the deceased’s father, PW2. He admitted to having murdered the deceased. He told him that CPL Sadam arrested him at Dodoma on 3rd June 2020. PW7 reduced each and everything said by the Accused into writing and then signed it. The Accused’s Caution Statement was admitted as Exhibit P3. On cross-examination, PW7 testified that the Accused’s Caution Statement was recorded at Chalinze Police Station and not at Kibaha Police Station. He also testified that on 6th June 2020, Afande Ifuguto and Afande Stanley were both Stationed at Chalinze Police Station, and he was instructed by ASP Njama to record the caution Statement. Re-examined by the learned state attorney, PW7 testified that his witness statement was not the same because it was typed. It was not his duty to take the accused to the hospital. Only PW7 and the accused were in the interview room. The accused admitted to having killed the deceased and the deceased’s father, PW2. 17 PW8, F.8691 D/SGT Willy testified that on 22nd May 2020, in the morning, he was at Chalinze Police Station. He received a case file with registration No. CHAL/IR/1206/2020 concerning murder accusations from ASP Njama. He was then instructed to investigate the issue. He pointed out that the accused was the suspect, and the deceased was Johnson Lumumba Mtui. Having received the file, he went through it. He discovered that there were traffic Police officers led by CPL Ayoub and PC Jamal who, on the day of the incident, at Kibiki area within Chalinze, witnessed a vehicle swerve leaving its direction. They also witnessed a person jumping out of the said Vehicle through the passenger door. He testified further that, having seen that, they informed the OCD one SSP Ndoe, who also appeared at the area of incident. CPL Ayoub entered the vehicle and switched it off. Having looked at the bed behind the driver’s seat, they saw the body lying thereon. The doctor was called to examine the body. He was the one who interviewed the doctor, who confirmed that the cause of death was due to injuries on the deceased’s head. It was very unfortunate that he did not see the deceased’s body as, by that time, the same had already been released to the relatives. 18 He also contacted the deceased’s father, PW2, who told him that on 29th April 2020, he sent the deceased to Iringa to pick up timbers. On 21st May 2020, PW2 called the deceased to know if the job was accordingly done. He did not pick up his calls. Later on, he received a text message through the deceased’s cell phone stating that” I am a jasus from Rwanda rusizi forest I have come in Tanzania for special case usimdharau usiemjua kilichompoza mwanao ni jeuli sizani kama yupo hai kwa taarifa zaidi nenda Chalinze ya Dar es Salaam”. Having received the text message as such, PW2 called his son Ezra and asked him who was the current conductor or turnboy. Ezra told him that it was the accused by then. He was also given his cell phone number and that is when he started the investigation. According to PW8, the deceased’s father, PW2, did not know the accused before. The accused was searched by using his cell phone number unsuccessfully. They then resorted to the cybercrime section, which tracked the Accused’s cell phone number successfully. Later on, Samweli Nyagawa and Rahel Nyagawa were arrested. On 30th May 2020, Samweli was arrested at Mpwapwa, Dodoma, and on interview, he admitted knowing the accused, Edward Jackson Nyagawa. He acknowledged also having been sent to Rahel’s House at 19 Mbagala, Dar es Salaam, to pick up the tires. On 31st May 2020, Rahel Nyagawa was also arrested at Dodoma by DC Sadam. In an interview, she admitted that the accused came to her house and left two tires. She asked him where he got them, and the Accused replied that the owner was not paying them at that time, so they had to sell the tires. PW8 also testified that, on 3rd June 2020, the Accused was arrested by DC Sadam with the help of Samweli and Rahel at Masa Village within Dodoma Region. Having been arrested, he was taken to Dodoma and then to Chalinze Police Station. DC Noel was responsible for taking his Caution Statement. Having passed through the Accused’s Caution Statement, he realized that the Accused admitted to having murdered the deceased. He then went to the Cell and called him with the view to ascertain the truth on the confession he made before DC Noel. The accused confessed before him that he was the one who killed the deceased because he failed to pay him Tanzanian Shillings 200,000/=. On 9th June 2020, PW8 took the accused to the justice of the peace. It was after going through his caution statement. Previously, on 6th June 2020, he asked him to take him to the justice of the peace, and he refused. It was on 9th June 2020 when he became 20 ready to be taken to the justice of the peace. He mentioned that the name of the justice of peace was Hashimu, a Magistrate at Chalinze Primary Court (PW6). Having arrived there, the accused was left with him and went away, approximately 18 walking paces. The room had a door and it was closed. Other Police officers remained outside of the justice of peace’s office. On the way to the justice of peace, the accused was handcuffed. Having seated, he was unhandcuffed. Having recorded his confession, the accused was returned to Chalinze Police Station. To and from justice of peace’s office, the accused was fit and physically well. PW8 continued to testify that when he asked the accused whether he confessed before PW7, he did not take him out of the cell, but he was closer to him. He admitted to having killed the deceased and repented about that. He added that the accused was late in being arrested because he was not reachable. Having passed through the extra-judicial statement, the caution statement, the confession made before him, the conduct of the accused after the incident as he flew to hide, and the interviews made with Rahel and Samweli, PW8 resolved that it was the accused who murdered the deceased. 21 On cross-examination, PW8 testified that there were several investigators who investigated the incident, including himself and DC Sadam. He testified further that it was the accused who told him that the deceased was killed in Dar es Salaam. The vehicle was heading to Morogoro. According to Exhibit P1, the deceased was hit by a blunt object, but the Police officers who witnessed the person jumping from the vehicle did not tell if the person had any object. He admitted to have not mentioned the cell phone numbers of Afande Mdoe and the Accused. He also admitted to have not tendered the text message that was sent to the deceased’s father. On further cross-examination, PW8 testified that PW2 told him that he had not known the accused before. He came to know him through Ezra. The accused was arrested with the help of the cybercrime department. He interviewed the accused after he was interviewed by Noel, PW7, and it was an oral interview. Officially, he was interviewed by PW7 on 6th June 2020. He was then taken to the justice of Peace on 9th June 2020. He denied having information that the Accused was beaten. He admitted that the accused was arrested with the help of his relatives, Samweli and Rahel, who were also material witnesses to testify. 22 Re-examined by the learned state attorney, PW8 testified that Sadam was the one who went to Dodoma to arrest the Accused. He called the Accused from the Cell to ask if he had confessed before PW7. He was okay physically when he was taken to the justice of the peace on 9th June 2020. Having recorded his extra-judicial statement, he was returned to the Cell. That was all about the prosecution case. Having gone through the evidence adduced by PW1, PW3, PW4, PW5, PW6, PW7, and PW8 and Exhibits P1, P2, P3 and D1, this Court found that prosecution established a prima facie case to answer warranting the accused to enter his defense. Consequently, the Accused was addressed in terms of section 293 (2) of the Criminal Procedure Act, Cap 20, R.E 2022. DW1, Edward Jackson Nyagawa testified that on 3rd June 2020, while at Chogola Village within Masa Ward, outside his brother’s House one Mbamile Kulanga, suddenly, two persons unfamiliar approached him. They asked him his names and he introduced himself to them. One of them said, “he is the one”. He was then handcuffed by a belt. He asked for the reason and was informed that it was because he was not participating in the village projects. Having worked for two minutes, two others, unfamiliar to me, came by a 23 motorcycle. He was then handcuffed and headed to VEO’s office. Having arrived there, one of them required Afande Msuka to enter the office while the VEO was required to go outside. He came to know names because those people were calling each other. Thereafter, Sadam and Msuka thanked the VEO for his cooperation and three of us left to Kibakwe Police Station. DW1 (the Accused) continued to testify that, having arrived at Kibakwe Police Station, he was remanded in a room. Later on, Sadam and Msuka also entered the room and started to beat him using their bare hands. They were questioning him why he killed someone. He refused the allegations. Having beaten him, they both left the room. On 4th June 2020, Sadam and Msuka came. They both started a journey to Mpwapwa Police Station by using a motorcycle and arrived there at around 12:00 hours in the afternoon where he was also remanded. Within 15 minutes, Sadam and Msuka came and both went to Mpwapwa bus stand, where we boarded a Bus to Dodoma town and arrived there at around 17:00 hours in the evening. He was directly taken to Dodoma Central Police, where he was remanded. Within 10 minutes, he was removed from the Cell to another office within the compound by Sadam, Msuka and another Police officer 24 whom he could not easily recognize. While in the office, He was beaten by Msuka and Sadam asking him why he killed. He denied the accusations. He was injured on his nose and was bleeding. On the lockup, he met his brother, Samweli. On 5th June 2020, the two were taken from the lockup. Outside, there was a vehicle ready for a journey. Later on, he was surprised to see his sister Rahel. He asked her why she was there, and she replied that she was arrested for unknown reason. In the car, there were eight other Police officers but he could only recognize Sadam and Puma; some of them had guns. After that, they both started a journey to Chalinze Police Station and arrived around 17:00 hours in the evening. The three of them were remanded. DW1 testified further that, having arrived at Chalinze Police Station, within ten minutes, he was taken to one of the offices within the compound where he found Puma and other unfamiliar police officers. One of them asked him why he killed, and he denied the accusations. Thereafter, Puma resolved that he should be taken to Kibaha Police Station. Both of them started a journey to Kibaha Police Station, and having arrived there, he was remanded for a single night. 25 On 6th June 2020 in the evening, he was removed from the lockup to an office where he was asked why he killed someone and denied the accusations. He was then handcuffed and taken to “Gereji”, a room where suspects are tortured (Nyumba ya matesso). The room contained Machete (panga), sticks, electric wire, pace and hinged robes. He was then hanged in a style known as “popo”; hanging while facing down (kichwa chini miguu juu). He came to learn that Puma and Noel were present, too. He was beaten seriously by using the said instruments. He asked the reason and was told by Puma that “Unajifanya hujui? Utajua”. DW1 added that the torture resulted into injuries and bleeding. He was beaten for about five minutes. After that he was returned to Kibaha Police Station. While he was yet to enter the lockup, Puma instructed Noel (PW7) that “jua namna ya kufanya huyu mtu hajui lolote kuhusiana na mauaji”. He was then taken to the Cell. Within thirty ( 30 ) minutes, he was removed from the lockup and taken to the same office within the compound. Inside, there was Noel and other three Police officers. Willy (PW8) was standing on the door with a gun. Noel had a pen and papers already written on. He was required to sign the papers without even reading them. He refused to sign the 26 papers. Noel insisted that he should sign without reading the papers. He then refused to sign. Willy intimidated him with a gun. He then had no option but to sign the papers. DW1 referred this Court to Exhibit P3. Having signed the papers, he was returned to the cell. DW1 continued to testify that he stayed at Kibaha Police Station until 8th June 2020 when he was taken back to Chalinze Police Station. Having arrived there, he was remanded. On 9th June 2020, in the afternoon, He was taken to somewhere he did not know. Having arrived there, Willy entered the House. Few minutes later, he came out and Sadam and Willy entered the house. There were two persons in the House. When he was inside, he was instructed to sit on the chair by one of them. Willy went out and soon after that he came back with an envelope. He opened it and took out the papers which were already written on. He gave the same to the person who told him to sit on the chair. Then, that person started to copy each and everything from those papers. He continued doing that for more than one hour. He was then required to sign the papers. Having signed as required, he was returned to Chalinze Police Station. On 10th June 2020, the accused, Samweli and Rahel, were both arraigned before 27 Msoga District Court, alleged to have murdered Johnson Mtui, the deceased. The accused denied having murdered Godfrey Mtui. He also denied knowing Johnson Godfrey Mtui. He added that Exhibit P1 related to the death of Johnson Godfrey Mtui, but PW8 testified that the one who died is Johnson Lumumba Mtui, while the charge indicates that the one who died is Johnson Godfrey Mtui. He considered this to be a contradiction on the part of prosecution evidence. Cross-examined by the learned state attorney, DW1 testified that he is a peasant, and his brother and village leaders know that. However, he did not call them to testify, although the Court allowed him to bring witnesses. He also conceded that he did not explain where he was on the day of the incident. He added further that most prosecution witnesses testified on Samweli and Rahel, but he did not bring them to testify. Cross-examined further, DW1 conceded to have not disputed that PW2 (Lumumba Adrea Mtui) knew him during the examination in chief. He did not dispute that he had been employed as a turnboy in a motor vehicle registered as T515 DSM with a trailer registered as T996 DSE Make Scania. He also conceded to have not 28 disputed that on 29th April 2020, together with the deceased, he went to PW2’s house, who allowed them to go to Mafinga together to load timber cargo to Dar es Salaam. He generally agreed not to contradict PW2 through cross-examination. On further cross-examination, DW1 denied knowing the Justice of Peace to be the one who recorded his confession and failed to relate the person who was in the office with PW6. He conceded further that he never disputed the entire evidence adduced by PW6. He denied to have confessed before the PW7. He also testified that the post-mortem report showed that the deceased was Johnson Godfrey Mtui, the same person he was accused of killing. He added that when he was taken to the torture room, his face was covered, but he was able to recognize Puma, Noel, and Willy. In the end, he agreed to have no grudge against the Police force, PW4, PW7, and PW8. Re-examined by the defense counsel, DW1 testified that the one who is supposed to prove that he is a peasant or not is prosecution. He faulted prosecution for failure to bring Rahel and Samweli. He insisted on not having confessed before the justice of peace and PW8. 29 Upon closure of the defense case, I ordered parties to file final submissions. I looked at the records and noted that the order was complied with accordingly, which I entirely recommend. In support of the prosecution evidence, Ms. Kaaya submitted that it is the cardinal principle in Criminal law that the prosecution must prove its case beyond all reasonable doubts. She cited Section 3 of the Evidence Act, Cap 6 RE 2022. She added that, on the strength of the evidence added by PW1, PW2, PW3, PW4, PW5, PW6, PW7, and PW8, and Exhibits P1 (Report on Postmortem Examination), PW2 ( PF93 – inspection report) and PW3 (Caustion statement) proved the matter to the required standards, that is beyond reasonable doubt. Ms. Kaaya continued to submit that in an information of murder, prosecution is duty bound to prove at least four elements, namely: one, there was the death of a human being; two, the death was unnatural; three, the accused participated in causing the death of the deceased and four the killing was actuated with malice aforethought. She cited the case of Chacha Ghati @ Gibita vs. Republic (Criminal Appeal No. 682 of 2020) [2024] TZCA 299. 30 Arguing on the first element, the learned counsel argued that prosecution successfully proved that JOHNSON GODFREY MTUI is dead. She refered this Court to the testmonies of PW1, PW2 and Exhibit P1. With regard to the second element, Ms. Kaaya argued that the prosecution managed to prove that the death was unnatural. She referred this Court to the testimonies of PW1 and Exhibit P1. On the third element, she conceded that there is no direct evidence of the witness who witnessed the accused murdering the deceased. However, she relied heavily on circumstantial evidence, the principle of the last person to be seen with the deceased, confession obtained in the cautioned statement, contradiction/lies of the accused person, and the conduct of an accused person after the incident. The evidence gathered points fingers to the accused being behind the death of JOHNSON GODFREY MTUI. The learned counsel cited the case of Armand Guehi vs. the Republic, Criminal Appeal No. 242 of 2010 Court of Appeal of Tanzania at Arusha, where it was observed that circumstantial evidence is very often the best evidence. It is the evidence surrounding circumstances that, by undersigned coincidence, can prove a proposition with accuracy in mathematics. She contended that 31 prosecution evidence had successfully demonstrated that the accused person was the last person to be seen with the deceased. She referred to the evidence of PW2, the deceased’s father, PW6 and Exhibit D1. She also cited the case of Mathayo Mwalimu and Another vs. the Republic, Criminal Appeal No. 147 of 2008. Based on the foregoing authority, Ms. Kaaya submitted that the accused person did not give a plausible explanation as to where he was on the fateful date. He offered a general denial that he did not know the deceased person. He did not dispute that he was known to (PW2) or working as a turnboy on the motor vehicle driven by the deceased. He did not also dispute that on 29th April 2020, he was seen with the deceased. It was submitted further that the accused was telling lies. She referred this Court to the testimonies of the accused during trial within a trial, where he testified that after arriving at Chalinze Police Station, Dodoma Police Station, he was remanded. While there, within one hour, Sadam (PW4) came to pick him up and he was taken to the back building within the compound. Thereafter, he was taken to Kibaha Police Station. He mentioned Sadam (PW4) and other Police officers he did not recognize. There, he was seriously beaten and 32 tortured by them. However, in another trial within a trial, he charged the story. This time, he said, he was taken to Kibaha Police Station by PUMA, WILLY, NOEL and other police officers where he was tortured. In addition, contrary to what he said during trial wiyhin a trial concerning the voluntariness of the extra judicial statement that the persons who took him to the justice of peace were SADAM and WILLY, during his defense in the main case, he said the people who took him to the Justice of Peace were WILLY and NOEL. He cited the case of Nkanga Daudi Nkanga vs. Republic (Criminal Appeal No. 316 of 2013) [2014] TZCA 213 (TanzLII), where it was observed the lies of the accused person may corroborate the prosecution case. She was also fortified by the decision of Fraid F.Mbaraka & Another vs. Domina Kagaruki & Another (Civil Appeal No.293 of 2022) [2023] TZCA 17597 TanzLII, which interpreted section 35(1) of the Evidence Act (supra). Ms. Kaaya was also fortified by the accused's confession. She referred this court to the confessions made before PW4, PW7, and PW8. This Court was also referred to the confession contained in Exhibits P3 and information on Exhibit D1. She cited the case of Gerson Geteni vs. Republic (Criminal Appeal No. 73 of 2021) 33 [2024] TZCA 52 (19 February 2024), where it was observed that an oral confession made by a suspect before or in the presence of reliable witnesses be they civilian or not, may be sufficient by itself to a found conviction against the suspect. It was submitted further that the accused failed to contradict such vital evidence. She cited the case of Martin Misara vs. Republic (Criminal Appeal No. 428 of 2016) [2018] TZCA 318. With regard to the truthfulness of the Caution statement, the learned counsel cited the case of Michael Mgowole & Another vs Republic (Criminal Appeal 205 of 2017) [2019] TZCA 341, where it was observed that the statement has one common feature. All of them describe the circumstances and the manner in which the deceased met his death. They are so detailed that the events described therein could have only been given by the people who do not know how the deceased met his death. As to whether the killing was with malice aforethought, Ms. Kaaya submitted that the deceased was found with injuries on his head. That means the person who inflicted the injury had an intention to kill the deceased. She then cited the case of Enock Kipela vs The Republic (Criminal Appeal 150 of 1994) [1999] TZCA 7. She 34 also reminded this Court of the very principle that the accused person builds his case through cross-examination and he must indicate the theme of his case from the beginning through the questions he asked in cross-examination, which was not done. She implored this Court not to accept his defence. She cited the case of Shekhe Salehe vs. Republic, Criminal Appeal No. 149 of 2023, Court of Appeal of Tanzania. The Defense final written submissions were filed jointly by Mr. Mkanyali and Ms. Mwanjwango, the learned counsels (hereinafter the “defense counsels”). The learned defense counsels paraphrased what prosecution witnesses testified during hearing. Of course, that was a tiresome job. For purposes of this Judgment, I shall not reproduce the testimonies. It suffices here to note that I have considered the submissions dispassionately. The learned defense counsels reinstated the very principle in criminal law that it is the duty of the prosecution to prove the case beyond reasonable doubt. They cited the cases of Mohamed Sid Matula vs. Republic (1995) (sic), Woodminton vs. DPP (1935) AC 462 and Hussein Said Nampanga vs. Republic, Criminal Appeal No. 117 of 2011, Court of Appeal at 35 Dar es Salaam. They cited Section 3 (2) (a) of the Evidence Act (supra). It was submitted further that a person is said to have committed the offense of murder contrary to sections 195 and 196 of the Penal Code, Cap 16 R.E 2022, if the essential ingredients which constitute such an offense as provided for under Section 200 thereof are proved to the required standards. In this respect, prosecution was responsible for establishing whether the accused person committed such an offence. Based on the testimony of PW1, it is hard to tell whether it was the accused who jumped from the vehicle. He did not properly identify the person who jumped from the said vehicle. In addition, no prosecution witness testified to have seen the accused person committing such an offense. They added that Exhibit P3 left a lot to desire as to whether it was the accused who murdered the deceased. The learned defense counsels also challenged vigorously the names of the deceased person. Although he admitted to have killed the deceased, the names contained in the charge are different. The names on Exhibit P1 are JOHNSON GODFREY MTUI while on Exhibit P3 are JOHNSON MTUI. They questioned whether JOHNSON 36 GODFREY MTUI was the same person as JOHNSON MTUI. It was submitted further that PW8 testified that the one who died was JOHNSON LUMUMBA MTUI. With those contradictions in the names of the deceased, the learned defense counsels argued that the offense was not proved to the required standards. The learned defense counsels also faulted the prosecution for failure to tender a motor vehicle with registration No. T515 DSM with trailer registered as T 996 DSE. It was argued that since the deceased is said to have been killed in the said vehicle, it was important that the same be tendered as an exhibit. Further, neither the knife nor the tire liver (wheel spanner) alleged to have been used in the commission of the offense were tendered in Court. The learned defense counsels also attacked the testimonies of PW2, who testified to have received the text message from the deceased’s cellphone. The text message was not tendered in Court. Based on the above, the learned defense counsels considered the offense to have been not proven in the spirit of Section 110 (1) and (2) of the Evidence Act (supra). Having dispassionately considered the charge, prosecution, and defense witnesses, and the final written submissions by the learned 37 counsels, the question would be whether the offense in which the accused person is charged with has been proved beyond a reasonable doubt. At the outset, I should indorse the recommendable job by the prosecution and defense counsels. The job has been made easier for me. According to the Charge, the accused herein stands arraigned for the offense of Murder contrary to Sections 196 and 197 of the Penal Code (supra). In the case of Chacha Ghati @ Gibita vs. Republic (Criminal Appeal No. 682 of 2020) [2024] TZCA 299 (3 May 2024), which was correctly cited to me by Ms. Kaaya, the Court had this to say; We have earlier on stated that the appellant was convicted of murder and sentenced to death by hanging. In murder cases, the prosecution was required to prove beyond reasonable doubt the following: One, there was death of a human being. Two, the death was unnatural. Three, the accused participated in causing the death of the deceased and four the killing was actuated with malice aforethought. 38 It follows therefore that in murder cases, prosecution must establish to the satisfaction of the Court that a human being died unnatural death and that the accused is the one who caused it with malice aforethought. To appreciate the evidence adduced before this Court, I will look into whether the deceased died an unnatural death. According to PW1, a medical doctor, on 21st May 2020, was required to conduct a postmortem examination of the deceased’s body. He went to the area of the scene and having arrived there, he saw a male body lying on the bed behind the driver’s seat. He witnessed blood clots oozing from the head. The body had two cut- deep wounds on the head, one at the front and another at the occipital bone. The injuries were 3 centimeters wide and deep. In the end, he discovered that the cause of the death was due to excessive bleeding. He looked at the pulse rate (blood speed flow) and also discovered that pupils were fully dilated, meaning that the person examined was already dead. He tendered a Post-mortem Examination Report and was admitted as Exhibit P1. His evidence was supported by the evidence of PW2, the deceased's father, who testified to have attended the burial ceremony of the deceased at Moshi. 39 Based on the above, I am satisfied that one JOHNSON GODFREY MTUI died an unnatural death. The presence of Exhibit P2 is evidence that he is no longer alive. Moreover, the fact that his head had two cut wounds and the presence of blood oozing therefrom is evident that his death was not natural. Having so observed, the next issue is whether the accused participated in causing the death of the deceased. That will be the next episode. According to Ms. Kaaya, the prosecution managed to prove that it was the accused who murdered the deceased. She relied on the confessions by the Accused before PW6, PW7, PW8, and Exhibits P3 and D1. She also relied on circumstantial evidence and the doctrine of the last person to be seen with the deceased alive. Considering the evidence available, I am constrained to agree with her that, in order to determine this matter effectively, this Court should look into whether the confession suffices to convict, although retracted. The Court should also apply principles relating to the last person to be seen with the deceased and circumstantial evidence. Reading between the lines, the testimonies of PW6 and PW7 and Exhibits P2 and D1, one discovers that the accused confessed or admitted to have killed the deceased in Dar es Salaam City. It was 40 established that on the way, before reaching Kongowe, they refueled the Vehicle at a certain Filling Station. Having left the Filling Station, few meters away, the deceased stopped the Vehicle and decided to rest. They all slept on the beds behind the driver’s seat in the same vehicle. The Accused slept on the top while the deceased slept on the lower bed. At around 21:00 hours at night, the deceased fell asleep. The Accused woke up, took a spanner from the toolbox and attacked the deceased on his head near the light ear. The deceased was then bleeding profusely. When the deceased was giving out abnormal sounds, the accused picked up a knife and stabbed him on his head. Having done that, the Accused covered the injured parts of the head with bedsheets. Thereafter, he drove the Vehicle to Sabasaba Area in Dar es Salaam with the deceased’s body inside. Having arrived there, he dropped two spare tires to his sister, one Rahel Nyagawa. When the sister asked, the Accused said that the same were given to him by the deceased. The Accused then started his journey to Chalinze via Dar es Salaam – Morogoro road with the deceased’s body inside the car. Upon arriving at the Kibiki area at Chalinze, he picked up a piece of stone, inserted it into the vehicle’s accelerator pedal, and then jumped 41 out of it. He also took Tanzanian Shillings 200,000/=, which belonged to the deceased and boarded a Car to Dodoma Region. When he was in transit, he was called many times by the deceased’s relatives, including his father (PW2) and wife. He did not pick up any of the calls. Having arrived at Dodoma, he stayed there for two days and moved to Mbuyuni in Ruaha, Iringa Region. While there, he called his young brother Samweli Benald and instructed him to go to his Sister Rahel Nyagawa at Sabasaba, Mbagala in Dar es Salaam to pick up the two tires he left and have the same sold. The two tires were sold by Samweli Benald at Tanzanian Shillings 700,000/= at Chalinze. The said Samweli was then instructed to send Tanzanian Shillings 100,000/= to him and the balance to his sister Rahel Nyagawa. After that, his sister Rahel Nyagawa was instructed to send to him the sum of Tanzanian Shillings. 200,000/=. It is a cardinal principle of law that the retracted confession must be collaborated in order to support the charge. In this case, as per the charge, the accused committed the offense at Kibiki in the Coast Region on 21st May 2020. There is no evidence from the prosecution that he committed the offense in the Coast Region at 42 Kibiki area. It suffices here to note that the evidence contained in the confession varies from the crime scene as per the charge. In fact, the charge was not supported by the confession. It is glaring from the evidence adduced that the area of the scene is somewhere in Dar es Salaam City and not Coast Region at Kibiki Area. According to PW1, the post-mortem examination was done at Kibiki area, approximately over six hours after the death of the deceased. That means the deceased might have died somewhere else before reaching Kibiki area. When cross-examined, PW8 testified that the accused admitted to him to have murdered the deceased in Dar es Salaam. Having observed the variance between the charge and the evidence adduced (confessions) regarding the scene area, the question would be whether the omission is fatal. In Godfrey Simon & Another vs. Republic (Criminal Appeal No. 296 of 2018) [2022] TZCA 8 (11 February 2022), the Court observed; In view of the stated position of the law, it was prudent to amend the charge. As this did not happen, the prosecution account regarding the place where the offence was committed did not support the charge. We say so because while the prosecution account from PW1 and PW3 revealed that the offence was committed at Matofarini as reflected at pages 10 and 15 of the record of appeal, the charge shows that it was committed at Dofa village. This had the effect of 43 weakening the prosecution case and in the absence of requisite amendment. There is more of interest to me. According to the charge, the deceased was murdered on 21st May 2020 at Kibiki area in the Coast Region. PW2 also supported the charge as to the date of commission. However, PW6 (justice of peace) testified that the offense was committed on 19th May 2020 in Dar es Salaam. The prosecution evidence was full of inconsistencies regarding the date and place where the offense was committed. Having seen that there was variance on the dates of commission of the offense, the prosecution was under a duty to amend the charge, short of which the charge remained unproven. In Abel Masikiti vs Republic (Criminal Appeal No. 24 of 2015) [2015] TZCA 8 (24 August 2015), the Court noted; In a number of cases in the past, this Court has held that it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date alleged in the charge sheet, which the accused was expected and required to answer. If there is any variance or uncertainty in the dates, then the charge must be amended in terms of section 234 of the CPA. If this is not done the preferred charge will remain unproved, and the accused shall be entitled to an acquittal. Short of that a failure of justice will occur. 44 In Mashala Njile vs. Republic Criminal Appeal No. 179 of 2014 (unreported), the Court of Appeal of Tanzania noted; This court in the case of Masasi S/o Mathias V. Republic, criminal appeal no. 274 of 2009 and Zengo S/o Mahema and three others v. Republic (both unreported) observed that variance between what is stated in the charge sheet as against the evidential facts from the testimony of the prosecution's witnesses renders the charge defective. In the case of Baith & Another vs. Republic, Criminal Appeal No. 339 of 2013 (unreported), the Court insisted and I quote; where there is a variation of the charges and the evidence about the place where the alleged offence (Armed Robbery occurred) the charge must be amended forthwith, and if no amendment is effected the charge will remain unproved and the accused person shall be entitled to acquittal as a matter of right short of that a failure of justice will occur. In light of the bolded expression, it needs no interpolation that in this particular case, the prosecution was supposed to amend the charge to support the evidence on record. The omission to amend the charge not only occasioned a miscarriage of justice but rendered the 45 prosecution's case unproven as required by law. In that stance, the confession by the accused cannot be used to support the charge. Having so observed, the next question would be whether applying the doctrine of the last person to be seen with the deceased life can suffice to convict. It must be satisfied that an accused person was the last person to be seen alive with the deceased. The Court of Appeal of Tanzania in Lukas s/o Njowoka vs. Republic, Criminal Appeal No. 220 of 2008 (unreported) as well as in Misoji Ndebile @ Soji vs. Republic, Criminal Appeal No. 75 of 2013, referring to its earlier decision of Richard Matangule vs. Republic [1992] T.L.R. 5, stated as follows; This Court authoritatively laid down and in the dearest language in the case of Richard Matengule v. R., Criminal Appeal No. 73 of 1991 (unreported) that: "That fact that the appellants were the last known persons to have been with the deceased casts very grave suspicions on them; but it is in itself not conclusive proof that they killed the deceased... Other cogent corroborating evidence is necessary, for a suspicion, however ingenious can never be a substitute for proof beyond reasonable doubt In Mathayo Mwalimu and Another vs. Republic, Criminal Appeal No. 147 of 2008 (unreported), the Court observed that; 46 In our considered opinion, if an accused person is alleged to have been the last person to be seen with the deceased, in the absence of a plausible explanation to explain away the circumstances leading to the death, he or she will be presumed to be the killer. In this case, in the absence of an explanation by the appellants to exculpate themselves from the death of Hamis Mnino, like the court below, we, too are satisfied that they are the ones who killed him According to PW2, the deceased’s father, on 29th April 2020, he was at home in Kondoa District when his Son, Johnson Godfrey Mtui, the deceased, and his turnboy, the accused, came to see him. They both told him they were going to Mafinga to load timbers to Dar es Salaam. He allowed them. They traveled to Mafinga and constantly communicated with him through cell phones. Sometimes, he communicated with the deceased and when not reachable, the accused. They managed to load timbers to Dar es Salaam. On 21st May 2020, he called the deceased to give him directives to load cement cargo to Kahama District. However, he was not picking up the calls. He then decided to call his turnboy (the accused) who did not answer the calls. By that time, he was still in Kondoa District. Having been suspicious of the death of the deceased, he Kept calling the Accused unsuccessfully. He suspected the accused to have killed his son, the deceased. 47 Unexpectedly, PW8, the leading investigator, appeared to testify. He testified that having received the text message, PW2 called his son Ezra and asked him who the deceased’s conductor or turnboy was by then. Ezra told him that it was the accused. According to PW8, the deceased’s father, PW2, did not know the accused before the day of the incident. They never met before. The evidence that the deceased was last seen with the Accused while alive was then tumbled down. The prosecution witnesses were highly contradictory. While PW2 testified that he saw the accused twenty-two days before the incident with the deceased before leaving for Mafinga, PW8 contended that the two had never met before or known each other. This Court has to determine whether the contradictions were minor or capable of dismantling prosecution case. I am mindful also that in the case of Tafifu Hassan @ Gumbe Versus Republic, Criminal Appeal No. 436 of 2017, Court of Appeal of Tanzania at Shinyanga, the Court observed that it is not every discrepancy in the prosecution case that will cause the prosecution case to flop. However, if the gist of the evidence is contradictory, the prosecution case will be dismantled. In my opinion, the contradiction between the evidence of PW2 and PW8 dismantled prosecution case. As said before, it can not be 48 established to the satisfaction of this Court that the accused was the last person to be seen with the deceased, considering that PW8 rebutted such assertion. The testimony of PW8 discredited the evidence of PW2 regarding seeing the Accused with the deceased together twenty-two days before the incident. The contradictions regarding the last person to be seen with the deceased left a lot to desire, and as usual, the doubts are resolved in favor of the accused. As observed above, the doctrine of the last person to be seen with the deceased alive is never absolute. It must be applied in line with other evidence on records. Apart from what was testified by PW2, I don’t see other evidence to support the assertion that it was the accused who was seen for the last time with the deceased alive. Even for the sake of argument that it was him, twenty-two days are enough to rebut the presumption. Considering the circumstances, I am unable to invoke the doctrine and agree that the accused was the last person to be seen with the deceased alive. Based on the foregoing, I can not apply the principles related to circumstantial evidence because I don’t think if such applicability will save the day. I don’t see the chain from which the circumstance evidence can be inferred to base a conviction. As alluded by Ms. 49 Kaaya, there is no eyewitness who witnessed the commission of the offense. Considering the variances between the charge and evidence, I am constrained to hold the view that the charge was not proved beyond reasonable doubt. I have failed to grasp substantial evidence pointing fingers to the accused as the one who killed the deceased. To that end, the Accused person is hereby acquitted. I order that the Accused be immediately released from prison unless lawfully held. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 19th September 2024. H.S. MTEMBWA JUDGE 50