REPUBLIC VERSUS MARIA ROGANI CHIGWILE

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE NO. 78 OF 2023 THE REPUBLIC VERSUS 1. MARIA ROGANI CHIGWILE 2. MAGRETH SAMWEL STEVEN 3. AGUSTA TIMOTHEO REUBEN 4. JANETH MAJITA HOYA 5. MARIAM TIMOTHEO ZACHARIA 6. TATU MALODA MKOMOCHI 7. PENDO MUSA LUKAS ------------------- JUDGMENT Date of Last Order: 01/10/ 2024 Date of the Judgment: 28/10// 2024 LONGOPA, J.: This judgment results from murder case prosecution against the accused persons. The accused persons stood charged of murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2022. It is alleged that Maria Rogani Chigwile, Magreth Samwel Steven, Agusta Timotheo Ruben, Janet Majita Hoya, Mariam Timotheo Zacharia, Tatu Maloda Mkomochi and Pendo Musa Lukas on 17th December 2022, all the accused 1|Page persons at Mwitikila Village within Bahi District in Dodoma Region did murder one Beritha D/O Chikoti Chalo. The prosecution enjoyed the services of Mr. Geofrey A. Mlagala, Senior State Attorney, Nancy Rugaihuruza and Daniel Lyatuu, both learned State Attorneys for the Republic while the defence was represented by Anselin Mwampoma, Samwel Mcharo, Christopher Malinga, Elizabeth Kagembe, Charles Simon, Denis Odhiambo, Ayubu Suday, all learned advocates for the 1st Accused to the 7th accused respectively. The prosecution called a total of eleven (11) witnesses and two (2) exhibits while the defence has seven (7) defence witnesses. PW 1 Neema Job Mpanda stated that on 17/12/2024 around 04:00 am she and her sister Grace Job Mpanda were arrested by Theresia and second accused who are militias (“Sungusungu”) at Mwitikila Village. They were locked up at Lupeta Primary School accused of using marijuana. The deceased one Beritha Chikoti Chalo was accused of witchcraft practices. In the afternoon, according PW 1 they were taken to meeting chaired by Village Chairman and Ward Councilor. PW 1 stated that three of them were undressed to nakedness and were beaten by militia. PW 1 stated that Beritha Chikoti Chalo was beaten by the accused persons except the seventh accused while naked on hot sand. 2|Page In cross examination, PW 1 stated that persons named at police station are the ones who participated in beating her and the deceased but they not in this court. According to PW 1 all the alleged offenders at Village meeting laying upside down while being abused. at the time. I was lying upside down. PW 1 further testified that there were a lot of militia and other people at that area. PW 2 was Grace Job Mpanda who testified to have been arrested at around 04:00 am of 17/12/2022, locked up at Lupeta Primary School and later on taken to a Baobab tree accused of Marijuana while Beritha was accused of witchcraft. The militia undressed them to nakedness while laying on sand upside down. Beritha was being beaten by sticks while being pulled on. At 14:00 hours when left the scene, PW 2 stated to have left Beritha Chikoti Chalo died. In cross -examination, PW 2 stated that alleged offenders in that meeting were abused by being undressed and remained naked. We were lying upside down looking at the sky. There were many persons from five Villages. The exercise was being supervised by the Village Chairman and militia chairman. It is only the women militia who beat us. The death occurred in my presence. According to PW 2, the people were so many almost 200 – 300 people at the scene. The persons she named at the Police are not in Court and the punishment was administered simultaneously to all the accused person each having been assigned to several militias. 3|Page Also, PW 2 stated further that it was from 13:00 hours to 15:00 hours and that it was not possible to see anything else happening beside the lying in the upside-down position. Thus, PW 2 stated to have not seen Beritha being beaten. PW 2 insisted that it was Village chairman and the militia chairperson Mr. Albert Mlulu and Peter Tosh who called the meeting and allowed the militia to act against the deceased and Grace and Neema Job Mpanda. There were 10 persons/militia persons for every person. The beatings were randomly from all the militia. Another piece of evidence was that of PW 3 was Elia Levison Kanoga who testified that on 17/12/2022 around 03:00 am was arrested and locked up at Lupeta Primary School. The villages were Mwitikila, Mhangwe, Chibelela, and Mtitaa villages. PW 3 stated that around 13:00pm the militia took all alleged offenders to a baobab tree. Each of them was assigned to 10 militias and they were kept separately. In cross examination, PW 3 stated that it is true each of the alleged offender was assigned 10 militias therefore there were more than 40 militia. There were many militias at that place on material date. The accused persons did not participate in abusing the alleged offender. PW 3 stated that no militia did beat any alleged women offenders including those dealing with Beritha Chalo. Also, PW 4 one Sabina Madeje testified to the effect that on 17/12/ 2022 saw the militia who were surrounding the deceased at Lupeta Primary 4|Page School. The militia took the deceased separately they undressed her except the tight. She had been beaten by the militia and pulled her down but did not recognize any militia. It was around 13:00pm. It is only ten steps from my home but she never went to that meeting. It was PW 4 that in the evening, she knew that Beritha was dead. She led police on 18/12/2022 to draw a sketch map of the scene of crime and identified body of deceased at the Health Centre. PW 5 was Salivina Chalo testified that she remembers on 17/12/2022 death of Beritha Chikoti Chalo that happened at Lupeta Primary School. The death was said to be caused by dizziness. According to PW 5 stated categorically that she does not know anyone who participated in cause of death. PW 6, Esther Edison Mwaipopo testified that she was Executive Officer at Mwitikila village in Bahi District. PW 6 stated that on 17/12/2022 at 18:00 hours she was called by Joseph Madeje, Village Chairman that there was an incident at Lupeta Primary School. PW 6 saw Beritha Chalo falling down for first and second time. PW 6 ran to assist Beritha Chikoti Chalo and was informed by the Village Chairman they only beat her a little bit allegedly for poisoning the child. At the scene of crime men who were present include one Joseph Madeje and Emil who was the militia leader at that Division of Mwitikila. Later on, PW 6 was informed about death of Beritha Chikoti Chalo. 5|Page In cross-examination, PW 6 stated that the Village Chairman informed her that the deceased was beaten and the meeting was led Ward Councilor was there. The Village Chairman stated that the cause of death was high blood pressure on the deceased. Persons who were present at the meeting were Joseph Madeje, Village Chairman and Aloyce Sakozi, Ward Councilor. The deceased was still alive at 18:45 when PW 6 left the scene of crime. PW 6 is the one who called the police about the incident of alleged beating. According to PW 6, none of the accused persons was present at the scene of crime when the Beritha Chikoti Chalo was falling down. PW 6 stated called OC-CID directly because the person was in bad shape at that time and that it is true that Village Council Chairman participated to beat the deceased. PW 6 insisted that death did not happen before 18:45 hours. PW 7, Erasto Kasili Mbiche who is Assistant Medical Officer testified that on 18/12/2022 at 02:00am was at Mwitikila Health Centre and examined the body of the deceased. PW 7 stated to have found bruises on various parts of the body including the legs, hands, neck, ribs and back of the body caused by blunt object and concluded that the death was caused by pains following the beating of the deceased. The name of the deceased was Beritha Chalo. PW 7 tendered a Report on Postmortem Examination dated 18/12/2022 which was admitted and marked as Exhibit PE1 to form part of the record. 6|Page In cross-examination, PW 7 stated to have recorded his statement early in the morning around 6:00am to 07:00am. He conducted Postmortem examination between 02:00 am to 05:00 am as the body arrived at 02:00 am from the scene of crime. PW 7 stated that there was no bleeding outside the body but it was internal bleeding. He suspected that deceased got hemorrhagic shock. PW 7 stated that the name of the deceased person in Exhibit PE. 1 appears lucidly to be corrected and that the handwriting is also very different. He filled the postmortem report around 06:00hours to 07:00 hours though in the Postmortem Examination report it is recorded 08:44 hours. It was PW 7 evidence that one can die of cardiac shock. PW 8: Ali Twalhata Bwijo, an Assistant Superintendent of Police (ASP), informed this Court that on 17/12/2022, he was directed Officer in Charge Criminal Investigation Department (OC-CID) Bahi to visit a scene of crime at Mwitikila village where he was accompanied by A/Inspector Chacha D/CPL Safari, D/CPL John and WP Tabu and D/CPL Godfrey. It was PW 8’s evidence that the scene of crime was cordoned until morning when we drew the sketch map and the body was taken to Mwitikila Health Centre. The body was handed over to the relatives for the burial. On 31/12/2022, several persons were arrested including Didace, Emily, Pius Samamba, Peter Chisamo, and Elia Mlemeta Msandoka. On 30/12/2022, the Ward Councilor did report himself to police Bahi on his 7|Page own volition. The nature of the incident was that meeting was led the Ward Councilor and Village Council Chairman in that incident day where militias were instructed and arrested people for various alleged offences. However, arrested persons informed the police that the deceased was tortured by women militias. Further, PW 8 informed this Court further that on 21/01/2023, the police got information about presence of women militias, went Mwitikila village and arrested Janeth and Tatu. It was the duo led the Police to the other accused persons at Chibelela village where Maria, Magreth, Mariam, Pendo and Augusta were arrested and took them to Bahi Police Station around 08:00 hours in the morning. In the arrest no Village leader participated as it is Janeth and Tatu who led them to houses of other accused persons in Chibelela. In cross examination, PW 8 noted that Police visited Mwitikila village three time on 17/12/2022, 31/12/2022 and 21/1/2023. PW 8 stated that he had no arrest warrant for the two accused persons on 21/01/2023. According to PW 8, the deceased’s body was found in the scene of crime and it was the Village Executive Officer, one Ester Mwaipopo who led them. The body was removed from the scene of crime in the morning of 18/12/2022 at around 07:00 hours. 8|Page It was PW 8’s evidence that arrest was done at different time. The first arrest was the militia leaders. The investigation revealed that Ward Councilor and Village Council Chairman for Mwitikila participated in the commission of the offence. The statements for all those who were arrested were recorded. Further, PW 8 stated that on 21/01/2023, Police officers we did not inform any village leader and they arrested Janeth and then Tatu. They were orally interrogated and named other persons in Chibelela whereby the duo led the Police officers to the houses of other accused persons as they knew the houses of each of the accused at Chibelela. The leadership were not informed of the arrest and they left at Chibelela village at 06:00 am. On the incident day according to PW 8, the first person to meet was the Village Executive Officer who informed the police about participation of Ward Councilor and the Village Council Chairman who called and chaired the meeting. Militia never called the meeting. The accused were arrested because they interrogated the deceased. Further, PW 8 stated that on 18/12/2022 the body remained until morning around 06:00hours at the scene and postmortem examination of the body was not done until after 06:00hours at Mwitikila Health Centre. Another witness was PW 9, one G. 8568 D/CPL Safari who stated that he recorded a statement of one Maria Rogani Chigwile from 10:35 am to 9|Page 11:20 am who admitted to have beaten Beritha Chalo with two sticks at buttocks and named other accused persons to have participated. While cross examined, PW 9 reiterated that he recorded the statement of 1st accused on 21/01/2023 at around 10:35am. It was PW 9’s testimony that his role was to record the statement of 1st accused only whereas the 1st accused never admitted to have killed the deceased. She only admitted to have beaten the deceased. PW 10: G 5943 D/CPL Elasmo stated that on 17/12/2022 on arrival at Mwitikila village to attend the incident, they were received Esther Mwaipopo, VEO and met with two relatives of deceased Sabina Madeje and Salvina Chalo. According PW 10, the deceased body was brought to Mwitikila Health Centre in the morning of 05:00 am. The doctor stated that the death was caused by severe pain after being attacked with blunt object. It was in the morning when they returned to the scene where D/CPL John drew a sketch map by being informed/led by Sabina Madeje. It is PW 10’s evidence that on 19/12/2022 he was assigned investigation role of the case and participated in the arrest of accused persons. Upon arrest of accused he interrogated one Magreth Samwel Steven and recorded her statement whereby the accused admitted to have beaten the deceased with a stick once at buttocks. It was recorded at 08:00 hours to 09:30 hours. PW 10 stated that the 2nd accused was among 10 | P a g e the militias who were assigned to beat to the alleged offender one Beritha Chikoti Chalo. In cross - examination, PW 10 denied existence of any identification parade in respect of this case thus the committal and plea taking proceedings might have erroneously included Identification Parade Register as one of the intended Exhibits. PW 10 noted that Mr. Aloyce Kasota Sokozi was one of the suspects accused but released others including Emily Michael Lyambago, Pius Lucas Samamba, Peter Masaka Chisoma, Elias Mlemeta Msendeko, Didas Peter Ngongomba. They never appeared before the committal court on 06/02/2023. He stated that he is not aware that he is not aware that they were discharged through Nolle Prosequi on 30/05/2023. According to PW 10, The village authorities’ leaders participated in the incident but they have never been arrested. No militia leaders were arrested in relationship to the commission of the offence and that those arrested were discharged as the evidence was not sufficient to link them with the offence. PW 10 stated that it is true that on 21/01/2023 when they went to Mwitikila to arrest, the VEO was informed and participated in the arrest of the accused Tatu and Janeth. Similarly, at Chibelela village the leaders were informed before arresting and it is these leaders who led Police officers to identify the residences of the accused to arrest them. 11 | P a g e The incident happened on 17/12/2022, the body was cordoned and body taken to Mwitikila Health Centre in the morning of 18/12/2022 and postmortem was conducted only once around 06:00 to 07:00 hours. PW 10 stated that the only evidence that Magreth Samwel Steven admitted to have committed the offence is the caution statement. PW 11: H. 8120 D/CPL John testified that on 17/12/2022 the scene of crime was cordoned; body of deceased was taken to Mwitikila Health Centre and patrol of the area continued until morning of 18/12/2022. PW 11 drew a sketch map while led by one Sabina Madeje. The sketch map was signed by the drawer and person who led the drawer. The sketch map dated 18/12/2022 drawn by H. 8120 D/C John was tendered, admitted and marked as Exhibit PE 2. It was PW 11 evidence that on 17/12/2022 it was around 16:00 hours when the death of Beritha Chalo happened while the sketch map was drawn on 18/12/2022 at 07:00 hours in the morning. PW 11 stated that cause of death of the deceased can only be stated by the doctor and there was nothing indicating a blunt object found at the scene of crime. There are no sticks used to beat/torture which are shown in the map. It is true that the incident that involved the villagers from the five villages. There was no need to indicate the position where the leaders who led the meeting were sitting on the fateful day. 12 | P a g e According to PW 11, the VEO is the one who gave them information that death occurred at 16:00 hours. PW 11 provided that it is correct that leaders of Chibelela are the one who led the police to identify location of the accused. Having ruled that prima facie case had been established warranting the accused persons to enter defence, the defence rallied seven witnesses. DW 1: Maria Rogani Chigwiye testified that she is a peasant and milia who joined on June 2022. On 17/12/2022 went to Mwitikila village for a neighbourhood meeting involving five villagers namely Chibelela, Mwitikila, Hangwe, Nchimila and Mtitaa. The meeting was called by leader including the Village Executive Chairman and the Chairperson of the militia. DW 1 denied to have participated in beating the deceased person during her life-time and that DW 1 never knew the deceased. She was arrested on 21/01/2023 by police officers led by the Hamlet/ Village chairman and interrogated on 23/01/2023 evening whereby she denied participation in any wrong doing. In cross examination, DW 1 reiterated his stance to have never participated in beating the deceased. DW 1 stated that they found Janeth and Tatu in the car while Police went to her home being led by Village chairman. DW 1 further stated that she has never fled from the village. 13 | P a g e DW 2: Magreth Samwel Steven stated that though on 17/12/2022 she went to Mwitikila village for a meeting relating to good neighborhood for five villagers, her role was limited to cooking activities for the meeting. The village council chairman is the one who called the meeting it involved residents of five villagers. DW 2 stated that she did not do anything in that meeting. In cross examination, DW 2 stated that militias who went with her at Mwitikila village are not in court. She can only recognize their faces. It is Wiston Samson, Village Chairman who led the police officer to arrest 2nd accused and she does not know PW 1 and PW 2. DW 3: Augusta Timotheo Reuben stated to be a peasant and a militia who participated in the meeting on 17/12/2022 at Mwitikila village involving five villages namely, Chibelela, Mhangwe, Mwitikila, Mtitaa and Chimila. DW 3 stated to have stayed until 16:00 hours when she returned to Chibelela. On 21/01/2023, around 04:00 am the village chairman knocked the door and Police arrested and took the accused to Bahi police station. DW 3 stated that throughout she denied any participation to the commission of the offence and prayed that this court be pleased to set her free. In cross examination, DW 3 stated that she barely knew the militias leadership who attended the meeting as she had just joined militia two 14 | P a g e months before the incident at Mwitikila village. Her role was fetching water for cooking of meal for participants and she was wearing normal clothing as she had yet to obtain militias uniform. DW 4: Janeth Majuta Hoya stated she is a peasant and joined militia at that village two months prior to the incident. The meeting at Mwitikila was attended by residents/ militia from Mtitaa, Mhangwe, Chibelela, Mwitikila and Mhimila villages. The meeting was for good neighborhood. According to DW 4, she was responsible for cooking part of the meeting whereas she participated in preparation of firewood and the cooking utensils. There were a lot of participants thus the food to cater for them. It was DW 4 version of story that she left to attend her sick grandchild thus never witness anything with regard to alleged crime. It was DW 4’s evidence that she never named anyone nor led the Police to the other accused person at Chibelela village. The only thing she witnessed seeing people being loaded on the motor vehicle and all of them were taken to Bahi Police Station. In cross examination, DW 4 refuted to have been interrogated and named the other accused persons. DW 5: Mariam Timotheo Zakaria stated that on 17/12/2022 she went to Mwitikila village as militia as she had only two weeks in the militia. There was a meeting on peace and security whereby militias from five 15 | P a g e villages were in attendance, Nchimila, Mtitaa, Mwitikila, Chibelela and Mhangwe. It was DW 5’s evidence that she was assigned cooking responsibilities as she was nursing a child with one year and 4 months. DW 5 stated to have cooked beans and ugali. It took from 08:00 to 14:00 hours to cook. The food was for militias in attendance of the meeting. After having lunch, DW 5 stated to have left Mwitikila village for the Chibelela village. On 21/01/2023 at around 06:00am at home in Chibelela village, DW 5 stated to have been arrested and taken to Bahi Police Station. In cross examination, DW 5 emphasized that she was assigned to handle cooking only and denied to have mentioned anyone at the Police Station. The militias who were cooking were many from various villages and from her village she did not see anyone. There were many people. DW 6: Tatu Maloda Mkomochi stated that she is a peasant and denied to have participated in murder of the Beritha Chikoti Chalo. She stated to have joined the militias in November 2022. DW 6 admits to have participated in the meeting on 17/12/2022 which involved five villages at Mwitikila village. These included Mhangwe, Mwitikila, Chibelela, Mtitaa and Mchimila. She was busy cooking for the militia as she was responsible to fetch firewood and cleaning of the utensils. DW 5 denied to have named anyone to have participated in the commission of the offence. 16 | P a g e In cross-examination, DW 6 reiterated that it was the chairman of Mwitikila village who assigned he to cooking/meal preparation as she was cleaning the utensils and fetching the firewood. DW 6 refuted to have participated in the commission of the offence. DW 7: Pendo Mussa Lukas testified to be a peasant and also a militia at Chibelela who participated on a meeting on 17/12/2022 at Mwitikila village. She was only the participant. DW 7 denied to have participated in the commission of the offence and that from 17/12/2022 to 21/01/2023 she was at Chibelela village. DW 7 stated that she has never been called anywhere before my arrest. She denied to have participate in the commission of alleged offence. Thus, she prayed that this court be pleased to set me free her free as she never committed any offence. In cross examination, DW 7 noted that she was a participant of the meeting without any specific role she was a newly recruited militia as she had only 11 days. That was summary of evidence on record for both the prosecution and defence. In light of the evidence on record, it is pertinent for this Court to determine on whether the accused persons are guilty of the offence of murder they stood charged with. To determine such question, it is pertinent to state at the outset on the principles guiding criminal cases. First, is the standard and burden of proof which is that of proof beyond reasonable doubts and such duty rests 17 | P a g e on the prosecution. Second, such proof shall cater for all ingredients of the offence. Illustration on the burden and standard of proof is reiterated on numerous decisions. For instance, in the case of Pascal Yoya @ Mganga vs Republic (Criminal Appeal No. 248 of 2017) [2021] TZCA 36 (24 February 2021) (TANZLII), at pages 16-17, the Court observed that: It is a cardinal principle of criminal law in our jurisdiction that, in cases such as the one at hand, it is the prosecution that has a burden of proving its case beyond reasonable doubt. The burden never shifts to the accused. An accused only needs to raise some reasonable doubt on the prosecution case and he need not prove his innocence. See the cases of Woolmington v. Director of Public Prosecutions [1935] AC 462; Abdi Ally (supra) and Mohamed Haruna @ Mtupeni & Another v. Republic, Criminal Appeal No. 25 of 2007 (unreported). In the just cited case of Mohamed Haruna @ Mtupeni & Another (supra) the Court stated that: - "Of course, in cases of this nature the burden of proof is always on the prosecution. The standard has always been proof beyond reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." 18 | P a g e Again, in Mwita and Others v. Republic [1977] TLR 54 the Court said: "The appellants' duty was not to prove that their defence was true. They were simply required to raise a reasonable doubt in the mind of the magistrate and no more." Similarly, in the case at hand, the appellant was not required to prove that his defence was true. He was only supposed to raise a reasonable doubt, which he did. From principles enunciated on this case, it is clear that it was the duty of the prosecution to prove the all elements of the offence of murder have been established beyond all reasonable doubt as required by the law. In the instant case, there are several accused persons who are charged for the offence of murder. The information reveals that all the accused persons did murder one Beritha Chikoti Chalo. It appears allegedly the accused acted with common intention. It is established law that where accused persons acted in unison to accomplish a common intention each of them is responsible for the offence if the same is proved. This was elucidated in Alex Kapinga & Others vs Republic (Criminal Appeal No. 252 of 2005) [2006] TZCA 145 (31 August 2006) (TANZLII) at pages 7-8, where the Court of Appeal stated that: It is common knowledge that where a person is killed in the course of prosecuting a common unlawful purpose, each party to the killing is guilty of murder. In the case of 19 | P a g e R v Tabulanyeka s/o Kirya and Others (1943) 10 EACA 51, the Court of Appeal for Eastern Africa stated at page 52 as follows – “To constitute such common intention it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so-called thief. Their common intention may be inferred from their presence, their actions and the omission of any of them to dissociate himself from the attack…" With regard to ingredients of the offence, the principle in Alex Kapinga & Others vs Republic (Supra) at pages 8-9, is illustrative as the Court of Appeal stated that: Section 196 of the Penal Code provides - "196. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder." From the above provision, in order to succeed, the prosecution had to prove beyond all reasonable doubt that first, the death of the deceased was at the hands of the appellants; second, that the appellants acted wrongfully in injuring the deceased; and, thirdly, that there was malice aforethought. 20 | P a g e It is on record that there is no dispute that victim of incident one Beritha Chikoti Chalo is dead. Oral testimonies of PW 4, PW 5, and PW 7 and Exhibit P. 1 reveal that the victim succumbed to death on 17 th December 2022 and the cause of death is recorded to be severe pains as a result of attack on various parts of the body by blunt object. According to PW 7 testimony, death was unnatural as it was accelerated by actions of attacking/beatings the victim on the parts of body. Having established the cause of death, it is crucial to illustrate if the death was caused by the accused persons herein and with malice aforethought. My perusal of evidence reveals that there is no direct evidence on record indicating that it is actually accused who are responsible with the death. I state so while fully aware that though PW 1 and PW 2 asserted that they saw accused persons beating the victim, such testimony is so contradictory, disjointed and lack coherence. PW 1 stated to have been subjected to torture and abuse by the militias by being stripped off all their clothing thus remained naked. PW 2 was of the view that they were undressed but remained with tights wear thus they were not completely naked. PW 3 stated that each of the alleged offenders namely PW 1, PW 2, PW 3 and the deceased were assigned to ten militias to interrogate each of them at separated places thus one alleged offender could not have seen what was going on the other alleged victims of the interrogation by militias. However, PW 3’s evidence is to the 21 | P a g e effect that the accused persons did not participate in beating any of the victims including the deceased. As such, it is lucid that there is no any direct evidence which is reliable and credible to support seeing the accused persons beating the victim one Beritha Chikoti Chalo on the material date of the incident. Absence of direct evidence is not an end of the road. Circumstantial evidence has a role to play in addressing the offence all the accused stood charged. In Joram Elia Kitomari vs Republic (Criminal Appeal No. 583 of 2020) [2024] TZCA 725 (14 August 2024) (TANZLII), at pages 9-10, the Court of Appeal illustratively stated that: It is an established principle of law that for circumstantial evidence to be relied upon to ground a conviction, it has to be watertight, irresistibly pointing to the guilt of an accused person. See: Shabani Abdallah v. Republic, Criminal Appeal No. 127 of 2003 and Juma Salum Singano v. Republic, Criminal Appeal No, 172 of 2008 (both unreported). Having thoroughly scrutinised the record of appeal, we are satisfied that the appellant's complaint regarding circumstantial evidence relied upon by the trial court is meritorious as we find that, the prosecution did not lead any evidence connecting him with the death of the deceased to justify the charge of murder 22 | P a g e he was facing. As such, the prosecution evidence was not watertight, and thus it was not safe to convict the appellant basing on the purported circumstantial evidence which was doubtful. Moreover, the application of circumstantial evidence in establishing the criminal offences was reiterated in the case of Manoja Masalu & Another vs Republic (Criminal Appeal No. 143 of 2020) [2024] TZCA 409 (6 June 2024) (TANZLII), at pages 29-30 the Court of Appeal observed that: The next question is whether the circumstantial evidence on record is capable of proving the charge. The test to be applied where a conviction is based on circumstantial evidence was laid down in the case of Kipkering Arap Koske v Rex [1949] EACA 135 where the Court of Appeal for Eastern Africa held that in order to justify, the inference of guilt, on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of his guilt. The principle in these decisions is that circumstantial evidence should point only to one direction that the accused person committed the offence not otherwise for it to be worth of conviction on a criminal offence. 23 | P a g e In the instant case, evidence of PW 6 stated categorically that on arrival at the scene of crime she found the Village Chairman who admitted to have beaten the deceased a little bit. There was neither of the accused persons in that place at the moment PW 6 found the victim walking from baobab tree and falling down three times before collapsing. Only men were presented at the scene including Joseph Madeje and Emily, the village Chairman and militias leader respectively. This evidence was consistent with innocence of the accused persons. Indeed, this evidence of the prosecution is consonant with innocence of the accused. Circumstances reveal that those who were present at the scene of crime are not in court. Further, the available evidence on record indicates that there are several contradictions in evidence of the prosecution. First, there is conspicuous disparities on timing of death of the victim. PW 1 and PW 2 stated that death occurred at 14:00 hours before they left the scene of crime. PW 6 at 18:45 hours saw the Beritha Chikoti Chalo walking from the baobab tree, falling down twice before collapsing when she fell for third time. Also, PW 8 and PW 11 stated that death occurred at 16:00 hours. Further, Exhibit PE 1 reveals that death occurred at 20:00 hours. Evidence of PW 6 that none of the accused was present at the scene at 18:45 hours when she the victim was still alive and walking waters down the evidence of all other witnesses that death of the victim occurred in presence of accused. 24 | P a g e Second, timing of the Post Mortem examination is also questionable. Evidence of PW 7 who is Assistant Medical Officer who examined the body stated that the body was retrieved from the scene of crime on 18th December 2022 and the examination was conducted from 02:00 hours to 05:00 hours. On the other hand, PW 8 evidence revealed that the body of the deceased was retrieved at around 06:00 to 07:00 hours and the Post Mortem examination was conducted from that time to 08:00 hours. PW 10 reiterated that the body was taken from the scene of crime at 05:00 hours. Thus, it appears from the evidence that allegedly Postmortem examination that was conducted by PW 7 is different from the one allegedly by PW 8 and PW 10. This creates reasonable doubts regarding the person who was the victim whose body was examined by PW 7. Furthermore, on arrest of the accused persons it was evidence of PW 8 that no local leadership was involved in arresting the accused persons at Chibelela village. PW 8 stated that it was Janeth Majita Hoya (4th accused) and Tatu Maloda Mkomochi (6th accused) who led the police to each of the other accused persons at Chibelela whereas no Hamlet/ village leaders participated. This would imply that 4th and 6th accused are well known to the other accused to the extent signifying that participation in commission of alleged offence was of joint in nature. This evidence was categorically contradicted by PW 10 whose evidence is that arrest at Chibelela was led by the leadership in that village. 25 | P a g e This creates reasonable doubt that the whole story of arrest, naming participation of 1st, 2nd, 3rd, 5th and 7th accused allegedly done by 4th and 6th accused and arraignment of accused is unreliable and unsubstantiated story. The two police officers participated in arrest of the accused persons at Mwitikila and Chibelela villages but the modalities on the arrest as evidence under oath/affirmation differ significantly. In Malimi Peter vs Republic (Criminal Appeal No. 480 of 2020) [2024] TZCA 65 (20 February 2024), at page 30, the Court of Appeal stated that: Usually, the principle of law is well developed that when there are reasonable doubts, same should be resolved in favour of the accused. The rationale was sounded by Lord Justice Benjamin Franklin of England who wrote: "It is better one hundred (100) guilty persons should escape than that one innocent person should suffer" The same principle was improved by a Jewish jurist Maimonides when he wrote "it is better and more satisfactory to acquit a thousand (1000) guilty persons than to put a single innocent one to death" The sacred principle behind those rules is that, protection of the innocent is much significant for mankind than punishing the guilty. 26 | P a g e The disparities of evidence of the prosecution on record must be interpreted in favour of all the accused persons as such contradictions go to the root of the case that participation of accused in the commission of the alleged offence is not proved. Such failure to prove the elements of the offence namely that the victim died in hands of the accused/that it was the unlawful action or omission of the accused that caused the death. The malice aforethought was not established. Certainly, all the accused persons provided a thorough explanation on their non-participation in the commission of the alleged offence on fateful date. The assertions by the accused persons sufficient raised doubts that prosecution failed to counter. Indeed, the prosecution did not lead any evidence detailing a role played by each of the accused persons in the accomplishment of the common intention to allegedly terminate the life of the victim. Further, considering strengths of PW 6 evidence namely the Village Executive Officer (VEO) that she found the victim in serious condition in presence of the village Chairman and militias leader and none else. Also, the evidence of PW 1, PW 2, and PW 3 was to the effect that a meeting on that fateful date was called, organised and chaired by the Mwitikila Village Chairman one Joseph Madeje, Militia leader one Emily and graced by Ward Councilor one Aloyce Sakozi, graced the meeting by opening the same. It is 27 | P a g e in evidence of the prosecution that all what was done by militias was under fully instructions of these persons. Surprisingly, none of these persons was arraigned before the Court to face trial in this matter. This case is a purely selective justice where those without influence or power are subjected to trial leaving others outside the trial. It is settled principle in this jurisdiction that selective justice is not permissible. In Haika d/o Chesam Mgao vs Republic (Criminal Appeal No. 37 of 2021) [2024] TZCA 6 (4 January 2024) (TANZLII) at page 13, the Court of Appeal stated that: We have once rebuked double standards in treating culprits when we said in Richard Wambura v. Republic, Criminal Appeal No. 167 of 2012 (unreported), that "justice must never be rationed at all.” Indeed, this principle was articulated categorically in the case of Richard Wambura vs Republic (Criminal Appeal No. 167 of 2012) [2013] TZCA 453 (19 September 2013), at pages 8-9, the Court of Appeal stated that: Justice must never be rationed at all…We believe that silence should not be the only option when things appear 28 | P a g e to be ill done in the due administration of justice. We have also not lost sight of the undisputed fact that even the appellant was arrested a month after the incident when there is no iota of evidence going to show that he had taken to flight to unknown destinations immediately after the robbery. Having carefully considered the evidence in totality, it is settled view of this Court there are lot to be desired in the evidence of the prosecution. Certainly, the available evidence cannot establish the offence of murder against the accused person. There is no tangible evidence to warrant a guilty finding against the accused. The offence of murder has not been proved against the 1st accused one Maria Rogani Chigwile, the 2nd accused Magreth Samwel Steven, 3rd accused Agusta Timotheo Ruben, 4th accused Janet Majita Hoya, 5th accused Mariam Timotheo Zacharia, sixth accused Tatu Maloda Mkomochi and the 7th accused Pendo Musa Lukas. Neither of them is guilty of the offence of Murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2022 as charged on account of the fact that the prosecution failed to prove the case to the required standard of proof beyond reasonable doubts against each of the accused person. 29 | P a g e I shall proceed to acquit the 1st accused one Maria Rogani Chigwile, the 2nd accused Magreth Samwel Steven, 3rd accused Agusta Timotheo Ruben, 4th accused Janet Majita Hoya, 5th accused Mariam Timotheo Zacharia, sixth accused Tatu Maloda Mkomochi and the 7th accused Pendo Musa Lukas. Each of them should be set at liberty immediately unless their continued incarceration is for any other justifiable cause. DATED at DODOMA this 28th day of October 2024 E.E. LONGOPA JUDGE 28/10/2024. 30 | P a g e