REPUBLIC V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 225 OF 2022 ____________________ REPUBLIC VERSUS 1. IDD OMARY NDEKAE @ CHUMA 2. SWALEHE ABDALLAH SWALEHE JUDGEMENT Date of last order: 4th September 2024 Date of Judgement: 22nd October 2024 MTEMBWA, J.: The accused persons herein stand arraigned for the offense of Murder contrary to Sections 196 and 197 of the Penal Code, Cap 16, R.E 2022. It was alleged that on 16th April 2022, at Visikini – Gezaulole area within Kigamboni District in Dar es Salaam Region, the accused persons murdered one JUMANNE OMARY MPENZA. Briefly, the deceased was a Motorcycle rider ferrying passengers in need to various places within Dar es Salaam Region, mainly from Biasi parking center located at Mbagala Rangitatu. On a fateful day at around 08:00 hours, he borrowed a Motorcycle registered as MC 355, 1 DCU make TVS (Exhibit P3) from Issa Seif Asiri (PW4), a fellow Motorcycle rider. The two agreed that the deceased would use the said Motorcycle and return it later on the same day. While at Biasi parking center, the deceased received a call from the Accused persons who wanted him to ferry them to Gezaulole. Before leaving the center, the deceased informed his colleague that he would pick up passengers at Shamba Fuel Station. The facts reveal further that, a short while, the said colleague got a passenger to the Chamanzi area. On the way there, he passed through Samba Fuel Station and saw the deceased carrying the Accused persons on the Motorcycle. From then, the deceased went missing, and his cell phone became unreachable until 17:00 hours in the evening when his dead body was discovered at Visikini area within Kigamboni District. Having been informed, the police officers from Kigamboni Police Station arrived at the area of the scene and drew a sketch map while the body was taken to Kigamboni Health Center. On 17th April 2022, a postmortem examination was conducted on the deceased body, and a report revealed that the cause of death was due to SEVERE HEAD INJURY. 2 The Accused persons pleaded not guilty to the charge. Consequently, the Republic fronted twelve (12) witnesses and tendered seven (7) exhibits. The Accused persons relied on their affirmed testimonies and tendered three (3) exhibits. In the conduct of this matter, Mr. Job Mrema, the learned senior state attorney, assisted by Mr. John Mwakifuna, the learned state attorney, represented the Republic while the 1st Accused enjoyed the service of Ms. Ziada Mkwazu, the learned counsel. Ms. Robi Simon Magaigwa, the learned counsel, represented the 2nd Accused person. Having so observed, I will now look into the testimonies of both parties. PW1, ASP RASHIDI AHMAD CHAMWI, testified that on 16th April 2022, at around 17:00 hours in the evening, he was called by Nassoro Bundala, a street Chairman for Visikini Street at Dege area within Kigamboni District, who informed him of the male dead body discovered within the area. Near the area, there are cemeteries. The body was estimated to belong to a male aged between 20 and 25 years. Being so informed, he prepared the investigation team, and the task force arrived at the scene area around 17:30 hours. DC Hamis led the task Force. He inspected the body by overturning it and 3 discovered a big wound or injury on the light side of the head. He resolved that death was due to assault by a heavy object. While still there, PW1 continued to testify that, soon thereafter, a group of Motorcycle riders from Mbagala arrived. They were in search of the deceased, who was not reachable on his cell phone. They identified the body as belonging to Jumanne Omari Mpenza. At around 19:00 hours, the police officers left the area of the scene to Mortuary at Kigamboni Health Center. He then instructed the task force to launch the investigation. At the area of the scene, witness statements were recorded and a sketch map was drawn. On 18th April 2022, PW1 was informed that the accused persons were apprehended and on interview, they directed the police officers to where they sell the Motorcycles after stealing. The area is called Bungu located within Rufiji District, Coast Region. He was also informed that one stolen Motorcycle is usually sold at Tanzanian Shillings 700,000/= each. The task Force managed to get the Motorcycle allegedly stolen and brought it to the police station. It is registered as MC 355 DCU make TVS, Black. Having been interviewed orally, the Accused persons admitted to have killed Jumanne Omary Mpenza by hitting him with a hammer. 4 Cross-examined by the defense counsels, PW1 testified that he was informed that the dead body was discovered at Visikini area. Having overturned and examined it, he saw blood oozing from the wound on the deceased’s head. The Motorcycle riders who appeared at the area of the scene did not say where they got information concerning the death of the deceased, but it was not true that they were the ones who killed him. Cross-examined further, PW1 testified that the Motorcycle stolen from the deceased is registered as MC 355 DCU make TVS, Black in color. There was no hammer at the area of the scene; however, during the interview, the accused persons admitted to have used it to kill the deceased. Re-examined by the learned state attorney, PW1 admitted to have not witnessed the Accused persons murdering the deceased, but it was discovered later that they were involved. PW2, WP 12310 PC LAILATI SALUM SULUHU, testified that on 19th April 2022 at around 17:00 hours in the evening, while at Kigamboni Police Station, F8639 DC Hamis came with a Motorcycle make TVS Black, with no Plate Number and handled it to her. Thereafter, she entered an entry into the Exhibit Register Book and labeled it as Exhibit No. 132/2022. The said Motorcycle had Chassis 5 Number MD625AF42M1K02986 and engine Number DF4KM1302560. She tendered the said Motorcycle and was admitted as Exhibit P3. On 20th April 2022, she wrote her witness statement and handled the same to an investigator, D/CPL Mgaya (PW12). Cross-examined by the defense counsels, PW2 admitted to have no records of when Exhibit P3 was brought to the police station. She also testified that when an exhibit is brought to the station, it is handled to her, and in turn, she enters an entry in a book known as PF16 (Exhibit Register Book). PW2 also admitted not knowing what happened to the Motorcycle. Re-examined by the learned state attorney, PW2 observed that entering the exhibit into a register book has a meaning corresponding to keeping or storing it. Exhibit P3 was one of the Exhibits she kept at the station. FAITH KAMOTA KUTTA, a businesswoman, testified as PW3. She testified to have known Issa Seif Asili (PW4) because she happened to sell to him a Motorcycle make TVS registered as MC 355 DCU on credit. She recalled to have entered into a contract with him on 10th December 2021. The Agreement was such that Issa Seif Asili would pay her the sum of Tanzanian Shillings 15,000/= per day from 11th December 2021 to 11th September 2022, equivalent to nine 6 months. The value of the said Motorcycle was Tanzanian Shillings 4,110,000/=. Issa Seif Asili could only return to her a total of Tanzania Shilling 1,890,000/=. For the last time, he brought to her the daily agreed return on 15th April 2022. PW3 continued to note that on 16th April 2022, she received a call from Issa Seif Asili informing her that the Motorcycle had been stolen. On 21st April 2022, she was called by a police officer from Kigamboni Police Station, who needed her to submit the original registration card. She handled it to Afande Mgaya (PW12). He recognized the Motorcycle that was admitted as Exhibit P3. Cross-examined by the defense Counsels, PW3 admitted to have no business license. She also admitted to have failed to tender the contact between her and Issa Seif Asili. Issa reported to her that the Motorcycle had been stolen, but she did not report the incident to the police. On 21st April 2022, she received a call from a police officer who wanted her to go to the police station to submit the original registration card. Cross-examined further, PW3 admitted to have no receipt and or valuation report on the value of the said Motorcycle. Re-examined by the learned state attorney, PW3 reiterated that she handled the said Motorcycle on credit repayable within nine months. 7 The Motorcycle she identified is the one that she handled to Issa Seif Asili (PW4). ISSA SEIF ASILI, a Motorcycle rider since 2020, testified as PW4. He used to ride a Motorcycle make TVS, registered as MC 355 DCU, which was handled to him on credit by PW3. His parking center was located at Biasi within Mbagala area. However, the same had been under the supervision of the Government since 20th April 2022. For the last time, he rode it on 15th April 2022. On 16th April 2022, he had an emergency and as such, he did not go to work. He then handed it to his friend one JUMANNE OMARI MPENZA. It was around 08:00 hours in the morning at Biasi area. Thereafter, he continued with his other businesses. PW4 continued to testify that at around 14:00 hours in the afternoon on 16th April 2022, he was called by Adam Iddi Kitogo (PW7), who told him that he had seen the Motorcycle driven by Iddi Omary @ Chuma (the 1st Accused person) at at Kimanzichana within Mkurunga District, Coast Region. He asked him to whom he handled the Motorcycle. He told him he had handled it to JUMANNNE OMARI MPENZA (the Deceased) since 08:00 hours in the morning. Adam Iddi 8 Kitogo required PW4 to call JUMANNNE OMARI MPENZA. However, he was not reachable. PW4 then had to go to the parking center and informed the other colleagues. The colleagues recalled seeing JUMANNNE OMARI MPENZA departing from there with a passenger. One of the colleagues, Saidi Kiundo (PW6), had an opportunity to hear where the two were heading. He heard them talking about going to Kigamboni, Geza ulole area. PW4 and his colleagues boarded a Motorcycle to Kigamboni and arrived there around 18:00 hours in the evening. They had to pass through several Motorcycle centers or groups commonly known as “Mgundi” seeking information about JUMANNNE OMARI MPENZA. In the course, they got information that there was a dead body lying in the bush at Dege, Gezaulole, within Kigamboni area. They arrived at the area where other people had also appeared. They identified the body to be that of JUMANNNE OMARI MPENZA. PW4 testified to have known the 1st Accused person since 2020, as he was a welding technician at Mbagala Rangi Tatu, Biasi area. He also used to be his mechanic technician when his Motorcycle had mechanical problems. Having identified the body, he went back home for funeral arrangements. JUMANNNE OMARI MPENZA, on the fateful 9 day, had put on the blue Coat with a black T-shirt inside. He also called PW3 and informed her of the incident. He also recognized Exhibit P3. Cross-examined by the defense counsels, PW4 admitted to have not tended the contract he entered with PW3. Cross-examined further, PW4 testified that he handled the Motorcycle to the deceased at the parking center (Kijiweni) and, thereafter, proceeded with his business. PW7 was the one who mentioned the names of the people who were riding the Motorcycle after it was taken from the deceased. When they were in search of the deceased, they had his picture. He witnessed the body of the deceased lying at Dege area, Gezaulole. It was near Dege cemeteries. DR. KAANANI NAZARETH, a medical doctor at Mvuha Heath Centre, testified as PW5. He recalled working at Kigamboni Heath Centre between January 2020 and October 2022. Examined by the learned state attorney, PW5 tested that on 16th April 2022, around evening, police officers came to the center with a dead body identified to be Jumanne Omary Mpenza. He performed a test to satisfy himself whether he was dead. Being assisted by the police officers, the body was kept in the mortuary. 10 On 17th April 2022, around morning hours, again, the police officers, in company with the deceased’s relatives, arrived at the center. Some of the police officers were Afande Calstus and Afande Mgaya. The deceased’s relatives were introduced to him as Rashidi Omary and Saidi Hemedi. They all entered the mortuary room and met the mortuary attendants. There were many dead bodies there inside. He required the relatives to identify the body. They identified one of the bodies as belonging to Jumanne Omary Mpenza. PW5 then examined the body with the view to identify the cause of the death. He discovered a round, rough wound deep at the light side of the deceased’s head caused by a blunt object. There were massive blood clots on the light side of the head. On his neck, there were bruises. Other parts of the body were ok. In the end, he resolved that the cause of the death was due to SEVERE HEAD INJURY WITH MASSIVE BLEEDING SECONDARY TO BEATING BY BLUNT OBJECT. Thereafter, he prepared a Postmortem Examination Report (Exhibit P1). During hearing, PW5 identified it. Cross-examined by the defense counsels, PW5 testified that being a deep wound or not depends on the pressure or force applied. He denied the argument that to sustain a deep wound, one must have 11 been hit by a sharp object. At the time when the body was brought at the center, blood was still oozing from the head slowly. There must be internal pressure for blood to come out of the body. The names of the relatives who identified the body were Rashid Omari and Said Omary Kiundo. He reiterated that the cause of death was due to a Head injury caused by a blunt object. Re-examined by the learned state attorney, PW5 testfied that diseases or accidents can cause bleeding. It can also happen when a person is poisoned or by internal pressure or gravitational force (blood going downward). PW6, SAIDI HEMEDI KIUNDO alias SAIDI OMARI KIUNDO is also a Motorcycle rider commonly known as bodaboda. He introduced himself to be one of the relatives of the deceased. He saw the deceased for the last time on 16th April 2022, around 09:00 hours in the morning at Biasi, Mbagala Rangi tatu (at the parking center), a place where they wait for passengers. On the fateful day, JUMANNE OMARY MPENZA was called by a passenger who wanted to go to Geza within Kigamboni District. He asked him what a reasonable fee would be to go there. By then, he had a Motorcycle make TVS, registered as T355 DCU. While still there, the passenger called for the second time. As such, he left the center to pick up the passenger. PW6 also took a 12 passenger to Mbande within Temeke District. Before going there, he passed through Simba Oil Petrol Station at Mbagala Charembe. While there, he saw JUMANNE OMARY MPENZA refueling his Motorcycle. He was with two passengers. PW6 continued to testify that approximately ten paces were the distance between where he was standing and where JUMANNE OMARY MPENZA was with his passengers. He demonstrated the distance by working in the Courtroom. One of the passengers was IDDI OMARY NDEKAE @ CHUMA (1st Accused person), who was familiar to him. He also recognized the other passenger (2nd Accused person), whom he knew by face, not name. Examined further, PW6 testified that he had known IDDI OMARY @ CHUMA since 2015. He also testified to know the 2nd Accused by face since 2021/2022. He used to see him many times before the day of the incident at his garage at Biasi, Mbagala Rangi Tatu. Having seen the deceased and his passengers, PW6 left for Mbande. At around 12:00 hours in the afternoon, PW6 returned to the parking center at Biasi. He continued to wait for passengers until when PW4 came around 15:00 hours. PW4 asked him the whereabouts of the deceased, JUMANNE OMARY MPENZA. He told 13 him that he had seen him with two passengers at Simba Petrol Station. PW4 told him that JUMANNE OMARY MPENZA was unreachable on his cell phone. He told him that he had gone to Geza, Kigamboni. PW4 then told him that PW7 had seen his Motorcycle at Kimanzichana. PW4 and PW6 then refueled the Motorcycle and then, together, went to Geza area within Kigamboni. They approached one of the Motorcycle riders' Centres (Kijiwe) and asked them about JUMANNE OMARY MPENZA. They did not know him, but PW4 showed them a picture of him on his cell phone. Having shown them the picture, they were directed to Visikini near cemeteries, where there was a body lying on the bush. They arrived there at around 17:00 to 18:00 hours in the evening. PW6 testified further that, at the area of the scene, there were other people and police officers. He saw the body lying on the bush with injury on the head and recognized it to belong to JUMANNE OMARY MPENZA. The deceased wore a black T-shirt and a blue coat on the material day. The body had bruises on the neck and a round deep wound on the light side of the head. There was fresh blood oozing from the wound. When he met the deceased in the morning, 14 he was physically ok. They helped the police officers to load the body into the car to Kigamboni Health Center. On 17th April 2022, at around 08:00 in the morning, he was called by police officers. They wanted to know if he was familiar with the deceased. He boarded a Motorcycle to Kigamboni Police Station. While there, he met the police officers. Together with the police officers, they went to Kigamboni Heath Centre, where they met a doctor (PW5). Having been introduced to the doctor, they both headed to the mortuary room within the compound. There were many dead bodies there, but he was able to identify the body of JUMANNE OMARY MPENZA. After the examination, the body was handed to them for burial activities. On 18th April 2022, together with police officers from Kigamboni Police Station, including Afande Hamis (PW10) and Afande Mgaya (PW12), they went to the 1st Accused’s home at Charambe, Mbagala. Having arrived there, he showed to the Police his residency. He was there preparing himself to flee away by using the back door. Then, the police officers arrested him. Having detained him, the police officers asked him where the 2nd Accused person was. He told them that he was at the garage, Biasi. The police officers then wanted him to show 15 where the garage was located. The police officers, the 1st Accused person and other Motorcycle riders went to the Garage. While there, they met Fundi Nipa (PW8), the officer in charge, who directed the police officers to where the 2nd Accused was within the compound. Then, the 2nd Accused was arrested too. Cross-examined by the defense counsels, PW6 testified that on 16th April 2022, PW4 asked him the whereabouts of JUMANNE OMARY MPENZA. He came around 14:00 to 15:00 hours in the afternoon. Cross-examined further, PW6 was led to tender his witness statement and was admitted as Exhibit D1. He admitted not knowing the passenger who called JUMANNE OMARY MPENZA to take him to Geza, Kigamboni. PW6, PW4, and the deceased were Motorcycle riders for a long time. He admitted that he was not present when PW4 handled the Motorcycle to the deceased. They were told that there was a dead body in the bush at Visikini area. He did not touch the body, however, but he saw the injury in his head and bruises on his neck. He also admitted not to know the cause of death, but he was certainly sure that he was killed unlawfully. Cross-examined further, PW6 testified that the 1st Accused person was the one who killed JUMANNE OMARY MPENZA, although 16 he did not witness the killing. To the surprise of the Court, PW6 observed that on 18th April 2022, he was not called by anyone; he did not talk to any police officer. He also told the Court that he knew where the 1st Accused’s home was because he used to hire him to take him there by his Motorcycle. Ultimately, he testified that he did not know where the 1st Accused’s home was before 17th April 2022. Re-examined by the learned state attorney, PW6 testified that he saw JUMANNE OMARY MPENZA with his two passengers at Simba Oil Petrol Station. The passengers were the 1st and 2nd Accused persons. Re-examined further, PW6 testified that he came to know the 1st Accused’s home on 17th April 2022, having been directed by another Motorcycle rider, Omary. He was shown to the House secretly and then returned to the Centre (kijiweni). He witnessed the arrest of both accused persons. PW7, ADAM IDD KITOGO, introduced himself as a Motorcycle rider using a Motorcycle make TVS registered as MC354 DCU, which was given to him by PW3 on 10th December 2022. Previously, he used to ride a Motorcycle make TVS registered as BZG 105. He admitted to know PW4, who is his relative and a fellow Motorcycle rider (boda 17 boda rider). The two also park at the same center, commonly known as “Mgundi.” On 16th April 2022, he was at Kimanzichana, Mkuranga District, Coast Region. At around 14:00 to 15:00 hours in the afternoon, he saw the Motorcycle make TVS with a black sticker, registered as MC 355 DCU, heading to Rufiji. By then, it was ridden or driven by the 1st Accused person, IDD OMARY @ CHUMA. He was carrying someone he could not recognize at the material time. He recognized the 2nd Accused person in Court as the passenger the 1st Accused was carrying. He added that he knew the 1st Accused person as a welding technician since 2021, working at the Kwa Mwarabu Garage within Biasi area, Mbagala Rangi Tatu. He also happened to fix his Motorcycle on 6th January 2022 at Mbagala Rangi Tatu, Biasi. The 1st Accused person is commonly known as “Chuma,” but his official name is IDD OMARY NDEKAE. Having seen the Accused persons with the Motorcycle, PW7 called PW4 and asked him who he handled over his Motorcycle. He told him that he had handled it to JUMANNE OMARY MPENZA, the deceased. He reported to have seen it driven by the 1st Accused person at Kimanzichana. He was puzzled to hear that. He thus 18 required PW4 to make follow-ups. PW7 informed this Court that the Accused persons were slowly riding the Motorcycle. The distance between where he was standing and the Accused persons passing while riding the said Motorcycle was approximately five paces or steps. It was around 14:00 to 15:00 hours in the afternoon. PW7 observed further that he had known the 2nd Accused since 2021. He is a welding technician working at a certain garage located Mbagala Rangi Tatu. When he gave the 1st Accused a task on his Motorcycle, the 2nd Accused was also present. PW7 also lives near the said Garage. When he passes there, most of the time, he sees the 1st Accused. On 17th April 2022, JUMANNE OMARY MPENZA was buried, and he participated fully. He was also involved in taking the body from home, Kimanzichana, to the cemeteries. Cross-examined by the defense counsels, PW7 testified that, on 16th April 2022, he was at Kimanzichana to see his parents when he saw the Motorcycle being driven by the 1st Accused person. In his witness statement, he did not mention “Iddi Omary.” He only mentioned the name “Chuma,” which almost everyone knows. While at his parents’ home, He went to buy them a gift, and that is when he saw the 1st Accused person driving the said Motorcycle. Afterward, he 19 called PW4, who denied handling the Motorcycle to any of the Accused persons. He assured the Court that the 1st Accused person was the one who killed the deceased, although he was not present. When he saw the accused persons driving Exhibit P3, he did not greet them. Re-examined by the learned state attorney, PW7 testified that he started riding Motorcycles in 2015. On 16th April 2022, when he was going to pick out a gift for his parents, he saw the 1st Accused person riding the said Motorcycle. He was carrying the 2nd Accused person whom he knew by face only. The Motorcycle was registered as MC 355 DCU. MWAZEWE NIPA MWAZEWE, a mechanical engineer at Biasi area, testified as PW8. He recalled that, on 18th April 2022, a police officer in company of the 1st Accused person came to his office (at the garage). He told him that another person working at the garage was believed to have committed the offense. He mentioned Swarehe Abdallah (the 2nd Accused person), whom he had known since 2019. He came to work at his Garage sometime in 2021. PW8 testified further that Iddi Omary (the 1st Accused person) is a welding technician at the garage. Swarehe Abdallah was still learning the 20 mechanical activities at the garage and he was his supervisor. Having arrested the 2nd Accused person, the said police officer parted with him. He did not know what happened next. Cross-examined by the defense counsels, PW8 testified that the 2nd Accused person was a learner at the garage and he was supervising him. The 1st Accused person was a welding technician. Cross-examined further, PW8 observed that the 2nd Accused was brought to the garage by his parent, and he was trained under his supervision. He admitted not knowing his behavior. PW9, FIKIRI MTANDATU MNYONGE, has been a chairman of Muungano hamlet since 2019. He testified that to travel from Dar es Salaam City to southern regions like Mtwara and Lindi, you would need to pass through Kongoe, Mkuranga, Mwarusembe, Kimanzichana, Kilimahewa, Ngunja, Mkiu, Njopeka, Kingoma, and then Jaribu Mpakani, a palace where he lives. After Jaribu Mpakana, there is Mkengeni Village. On 19th April 2022, Afande Hamis (PW10) called him, requiring him to meet at Bwana Saidi’s House. Having arrived there, he saw a car, a Toyota, Naoh model. Afande Hamis told him they had come from Kigamboni in search of Bwana Saidi. It was 21 very unfortunate that Said was not there. However, his wife, Nuru, was there. PW9 continued to testify that Afande Hamis wanted to conduct research on the said House in his presence. They both entered the House and found a Motorcycle made TVS blue in color. It had no plate number by then. They copied the chassis number and he signed the papers. Said’s wife, Ms. Nuru, also signed it. Thereafter, Afande Hamis opened the car bonnet and there was one person who was accused of killing the Motorcycle raider. That person is commonly known as Chuma. Afande Hamis required Chuma (1st Accused person) to tell what brought him there (at Jaribu Mpakani Village). Chuma said he killed one Motorcycle raider by hitting him on his head. Thereafter, Afande Hamis thanked the mob and left the area. PW9 remembered the chassis number of the Motorcycle to be DF4KM1302560. He implored this Court to receive the certificate of seizure for identification, and it was received and marked as ID2. He also identified the Motorcycle (Exhibit P3). Cross-examined by the defense counsels, PW9 testified that he had been a chairman for Muungano Hamlet since 2019. Further, he testified that the Motorcycle has multiple colors, blue and black. He 22 tendered his witness statement and was admitted as Exhibit D2. He also admitted not knowing the 1st Accused person before they met at Jaribu Mpakani. Re-examined by the learned state attorney, PW9 reiterated that the Motorcycle had two colors, blue and black. A/INSP HAMIS MASANA, a police officer, testified as PW10. He recalled that on 16th April 2022, he was a task force leader at Kigamboni, Dar es Salaam. At around 16:00 hours, he was called by OC-CID to accompany him to Mwongozo, Visikini where it was alleged that one person was murdered. Having arrived there, they guided the area of the scene. Having been there, he witnessed the body of the person who was injured on his head. A few hours later, they left back to Kigamboni Police Station. On 18th April 2022, at around 18:00 hours in the evening, he was again called by the OC-CID. This time, as a leader of the task force, he was instructed to commence an investigation into the incident. The investigation then was launched. On 18th April 2022, they were informed by the secret informer that the person responsible for the murder was preparing to shift from his home at Charambe, Mbagala. He was about to disappear. At around 11:00 hours, they arrived at the suspect’s Home. Having knocked on the door, the suspect’s wife opened it. Suddenly, they saw 23 someone running from the house; however, they managed to arrest him. After the arrest, they informed him of the accusations he was facing. He admitted to have committed the offence together with Abdallah Swarehe (the 2nd Accused person). The arrested suspect told them he is called Idd Omary Ndekae @ Chuma (1st Accused person). They wanted him to lead them to his fellow suspect and he agreed. Together with the 1st Accused person, they went to a garage at Mbagala Rangi tatu and met PW8. The 1st Accused then explained to him the purpose of the visit, which was to arrest the 2nd Accused person. Having been directed to where the 2nd Accused person was, they arrested him and took him to Kigamboni Police Station. On the way to Kigamboni Police Station, PW10 asked the Accused persons the location of the Motorcycle allegedly to have been stolen from the deceased. They replied that the same was sold to someone at Mlanzi in Bungu Ward. They admitted further that they killed the deceased just to get the Motorcycle. The 1st Accused person told him that he had created a relationship with the deceased for a long time by hiring him several times. PW10 continued to note that on the fateful day, the 1st Accused person hired the deceased to the area of the scene. By that time, the 24 2nd Accused was also there. Having arrived there, the 1st Accused attacked the deceased on his head using a hammer. He added that the deceased did not wear the element. After that, the 1st Accused drove the Motorcycle to Bungu while carrying the 2nd Accused person. PW10 also narrated that, on 19th April 2022, he was issued with a movement order to enable him to move from Kigamboni District to Rufiji District. The Movement order also had the names of other police officers, including CPL Rebeca, PC Hamji and PC Omary. They started a journey to Bungu in Rufiji District accompanied by the 1st Accused person and arrived at around 11:00 hours and reported at Bungu Police Station. Being directed by the 1st Accused person, they went to Mlanzi Village at a shop owned by BABU and arrested him. Having arrested him, he introduced himself as Jumanne Mnyungu. He told them that the alleged stolen Motorcycle was sold to another person at Jaribu Mpakani. Together with the 1st Accused person and Jumanne Mnyungu, they went to Jaribu Mpakani. They got assistance from civilians who gave them the cell phone number of the Chairman for Jaribu Mpakani hamlet (PW9). He was not reachable, and thus, they sent a civilian to call him at his home. Very fortunate, PW9 called back. They wanted 25 him to witness a search of Said’s House. After the arrival of the chairman, they both entered the House and found a Motorcycle make TVS with engine number FD4MK1302560 and chassis number MD625AFA2M1K02986. Thereafter, he filled out the certificate for Seizure that was tendered and admitted as Exhibit P4. He also recognized Exhibit P3 (the Motorcycle). Having seized the Motorcycle, they went back to Kigamboni Police Station and handed the exhibit to the exhibit keeper (PW2). PW10 added further that, on the way from Jaribu Mpakani at Kongowe area, they were stopped by a mob of Motorcycle raiders. They explained that another incident happened eight months ago where their fellow Motorcycle rider disappeared. They wanted them to ask the 1st Accused person if he knew about the incident. When the incident was mentioned to the 1st Accused person, he admitted to have killed him. He directed the police officers to the area where he executed the killing and while there, a human skull was discovered. In the area, there was also a short dress that the relatives identified as belonging to the deceased. As such, there is another murder case against the 1st Accused person under investigation. 26 Cross-examined by the defense counsels, PW10 testified that on 16th April 2022, he accompanied OC-CID to Visikini area to see the dead body. The incident is said to have happened around 16:00 hours in the evening. He admitted to have not examined the body, but he saw an injury on the head. He was only involved in the investigation and seizing of the Motorcycle (Exhibit P3). He also admitted to have arrested the 1st Accused person, having received information of his whereabouts from the secret informer. Through him, Exhibit P3 was seized. The Motorcycle had no plate number, but he could not tell if it was working properly. The 1st Accused person admitted to have killed another Motorcycle raider at Visikini. Re-examined by the learned state attorney, PW10 testified that the secret informer told them that, while at Kimanzichana, he saw the Motorcycle being raided by two persons, one of whom was the 1st Accused person. The 1st Accused person also helped them to arrest the 2nd Accused. He also helped them to arrest Jumanne Maulidi Mnyungu @ Babu, who also later assisted in seizing Exhibit P3. Having detained the 1st Accused, he directed them to where to get the 2nd Accused person, and they arrested him. Through him, the police force learned about another incident that was not previously known. 27 PW11, G.8358 D/CPL ALLY, is a police officer at Kigamboni Police Station. On 18th April 2022, the police officers approached him with the 1st Accused person. He was informed that the 1st Accused was facing murder accusations. One of the police officers was Afande Hamis (PW10). The police officers wanted him to record the 1st Accused person’s caution statement. It was around 13:20 hours in the afternoon. Thereafter, they left, leaving him with the 1st Accused person. Having explained his rights to him, he recorded his caution statement from 15:10 hours in the afternoon and completed it at 16:45 hours in the evening. Having passed through it, the 1st Accused signed it by affixing his thumb. He also certified it by affixing his force numbers and signature. During the interview, the 1st Accused person admitted to have murdered the deceased, who was the Motorcycle raider. He narrated that, on a fateful day, he hired the deceased from Mbagala Rangi tatu, Biasi, to Kigamboni, Dege Visikini area. Having arrived at Dege, Visikini area, the 1st Accused pulled out the hammer from his trouser and attacked the deceased on his head. Having done that, both Accused persons parted away with the Motorcycle. Having determined 28 the objection, the Caustion Statement of the 1st Accused person was admitted as Exhibit P5. Cross-examined by the defense counsels, PW11 testified that the 1st Accused person was brought to him by Afande Hamis (PW10). He did not know where he was coming from. OC-CID instructed him to record his caution statement. The interview room had windows, tables, chairs, etc. It was around 13:30 hours when the 1st Accused was brought to him. He started to record at 15:10 hours in the afternoon and completed at 16:45 hours in the evening. He did not torture him. Before recording his caution statement, he explained all the rights the 1st Accused person deserved. PW11 was also informed by the 1st Accused person that the hummer used to attack the deceased was left there at Dege Visikini, the area of the scene. PW12, G. 3907 D/CPL MGAYA is also a police officer at Mzimama Police Station, previously known as Kigamboni Police Station. On 16th April 2022, his duty station was Kigamboni police station. He recalled that on 16th April 2022, in the afternoon, he was instructed by the OC-CID (PW1) to accompany him to Dege at Visikini area. There was information on the presence of the dead body alongside the road. They arrived at the area of the scene, near Visikini 29 cemetery, and witnessed a male dead body lying alongside the road. They inquired about the incident, and after that, they carried the body to the Kigamboni Health Centre. The deceased’s name was Jumanne Omary Mpenza. He was then instructed by PW1 to investigate the incident. Having been so assigned, he discovered that Jumanne Omary Mpenza was murdered at Visikini area, Somangila Ward within Kigamboni District on 16th April 2022. He thus searched for the deceased’s relatives and got Rashidi Omary Mpenza. He also got one of his fellow Motorcycle raiders, Saidi Hemed Kiundo (PW6). The relative identified the body of the deceased at Kigamboni Health Centre on 17th April 2022. He also summonsed the Motorcycle owner (PW3) and required her to bring the original Registration Card. The Registration card is in the PW3’s name for a Motorcycle make TVS, registered as MC 355 DCU. On 12th June 2023, PW3 wanted her original Registration Card. He photocopied it and it was certified by an advocate. The original copy was handled to PW3, and the certified copy was retained. Having determined the objection, the Certified Registration Card No. 8994823 for Motorcycle No. MC 355 DCU Make TVS was admitted as Exhibit P6. 30 PW12 also was instructed by OC-CID (PW1) to record the Caution Statement of the 2nd Accused person. During the interview, the 2nd Accused person told him that he committed the offense with the 1st Accused person at Visikini area, and the deceased was a Motorcycle raider, one Jumanne Omary Mpenza. The 2nd Accused added further that it was the 1st Accused who attacked the deceased on his head by using a hummer. That thereafter, the 1st Accused drove the Motorcycle to Kibiti, where the same was sold at Tsh. 700,000/=. The 2nd Accused got Tanzanian Shillings 200,000/= out of the sale price. PW12 continued to testify that he recorded the caution statement of the 2nd Accused on 18th April 2022 at around 17:05 hours in the evening. Before that, he explained to the 2nd Accused the fundamental rights he was entitled to. He also cautioned him that the depositions may be used in Court against him. The 2nd Accused explained everything about how he was involved in murdering the deceased together with the 1st Accused person. He added that, before the day of the incident, the 1st Accused told him that there would be a task on the next date. After breakfast, the 2nd Accused witnessed the 1st Accused hiding the hummer on his trouser. Then, he called the 31 deceased, Jumanne Omary Mpenza and met at a filing station within Chamanzi. The deceased carried all of them up to Visikini area within Kigamboni District. The 2nd Accused told PW12 that he witnessed the 1st Accused pulling out the hammer from his trouser and hitting the deceased on his head. The deceased fell down. The body was pulled to a bush alongside the road. Then the 1st Accused, while carrying him, drove the Motorcycle to Kibiti District, where the same was sold. An attempt to tender the Caution Statement of the 2nd Accused was vigorously objected to by his defense counsel. Having conducted a trial within a trial, the same was admitted as Exhibit P7. Cross-examined by the defense counsels, PW12 testified on a fateful day, the civilians told them of the presence of the dead body alongside the road. Later one, they discovered that the deceased was Jumanne Omary Mpenza. The deceased’s cell phone had no SIM Card and Battery. Cross-examined further, PW12 admitted to have not witnessed the commission of the offense. He interviewed some of the civilians at the area of the scene; however, none of them was an eyewitness. Re-examined by the learned state attorney, PW12 observed that, on an interview, the 2nd Accused admitted to have participated in the killing together with the 1st Accused person. 32 That was all about prosecution evidence. Having gone through the evidence adduced by PW1, PW2 PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11, PW12, Exhibit P1, Exhibit P2, Exhibit P3, Exhibit P4, Exhibit P5, Exhibit P6 and Exhibit P7, this Court was satisfied that a prima facie case to answer warranting the accused persons to enter their defense was established by the prosecution.. Consequently, the Accused persons were addressed in terms of section 293 (2) of the Criminal Procedure Act, Cap 20, R.E 2022. Having been so addressed, the Accused persons defended themselves as follows. DW1, IDD OMARY IDEKAE, the 1st Accused person, introduced himself as a petty businessman. Examined by his learned defense counsel, DW1 testified that on 17th April 2024, at night hours, when he was from his business to Yombo Kilakala, at Tingitingi Bridge, he saw a mob of people with panga and maces. They required him to stop. After he stopped, one of them searched his pocket and pushed him out of the way, and he fell into the dirty trench. They introduced themselves as “police jamii”. The one he pushed became furious, and ultimately, they handcuffed his hands and took him to 33 Chang’ombe Police Station. Having arrived there, he was asked his three names and thereafter, he was remanded. DW1 testified further that on 18th April 2022, he was taken out of the Cell and one of the male police officers covered his face. He was then taken to the area he had never been before. Having arrived there, his face was uncovered. He realized later that he was at Kigamboni Police Station. In the afternoon, another police officer took him to another office within the compound. In the office/room, there was a bad smell. There was a table, chairs, iron and plastic pipes, and pieces of moths. The police officer introduced himself as Afande Ally. He was asked about his three names and educational level. Thereafter, he pulled out the table drawer, took three papers, and wanted him to sign by his thumb. The papers were identified as Exhibit P5 (Caution Statement) during hearing. DW1 also showed to the Court the old scar on his left toe of the leg. On 13th March 2022, he was arraigned before Hon. Kuppa for the offense of murder. He was so arraigned with another person he did not know before. On the same day, he was taken to Keko Prison, where a Doctor attended to him. On 30th June 2022, he was taken to Mbagala Government Hospital at Zakhiem. There, an X-ray was 34 performed, and it was noted that there was a fracture on the big toe of his left leg due to a gunshot. He tendered a medical certificate from Keko Prison, X-Rey, and a Radiology Report from Temeke Hospital as Exhibit D3 collectively. DW1 denied to have killed the deceased. He also denied knowing the 2nd Accused accused person. He came to know him on 13th June 2022 when he was arraigned before the committal Court. He also denied to have known the Motorcycle tendered in Court as Exhibit P3. He also testified not to know the deceased. He implored this Court to set him free. Cross-examined by the learned state attorney, DW1 admitted to have said nothing about 16th April 2022 and to not remembering where he was on the fateful day. He also admitted to have not cross- examine Afande Ally. He insisted that he came to know the 2nd Accused on 13th June 2022 when he was arraigned before Hon. Kuppa for a committal hearing. Crosse examined further, DW1 admitted to have not cross-examined Afande Hamis (PW1) on why he shot him. He acknowledged not to have objected the tendering of Exhibit P5 (caution statement). He also insisted that the Court should believe him that he was okay when the police officers arrested him. Re- 35 examined by the learned defense counsel, DW1 testified that before signing Exhibit P5, he was tortured and shot by a gunshot. Having been shot, he covered the wound with his shirt. DW2, SWAREHE ABDALLAH SWAREHE, testified that on 15th April 2022, he was at Karume market selling clothes in the evening. At around 22:00 hours, he moved to Songas, where he lives. While on the way, he met two people at around 23:00 hours, and one of them stopped him, but he refused. Having refused to stop, they quarreled. Then he slapped him. The other person came closer, and both arrested him to Mbande Police Station. Having arrived there, he was asked his name and was remanded. On 17th April 2022, a police officer and he was told to take everything that belonged to him. He was then taken to an area he didn’t know by a Car. There, there was a police officer. He asked his three names, and thereafter, he was remanded. On 18th April 2022, Afande Mgaya (PW12) called him from the Cell. He was taken to a room where another police officer was. He was then given some papers to sign but he refused. Both of them then started to beat him. Since he was beaten and threatened, he decided to sign. He declined to have signed a caution statement that 36 was tendered in Court. He also refused to know the 1st Accused. He lastly implored this Court to find him innocent. Cross-examined by the defense counsel for the 1st Accused person, DW2 testified that he was arrested for the offense of fighting with a person he did not know. After the arrest, he was taken to Mbande Police Station. He denied to have been carried by the 1st Accused on the Motorcycle. He insisted that he came to meet the 1st Accused person for the first time on 13th June 2022 when he was arragned before Hon. Kuppa. Cross-examined by the learned state attorney, DW2 admitted to have been handcuffed by a rope (pointing to his hands). He did not know what was written on the white papers given to him for signing. He also denied to have known Adam Idd Kitogo. He admitted to have heard witnesses mentioning his name, but in fact, it was not true that they knew him. He admitted that he had not cross-examined those witnesses. He refused to have testified during trial within a trial that there was a gym near the officer he was taken. He also refused to have been arrested at Biasi. Cross-examined further, DW2 testified that on 16th April 2022, he was at Mbande Police Station, having been arrested on 15th April 2022. 37 Having dispassionately considered the charge, prosecution and defense witnesses, the question would be whether the offense with which the Accused Persons are charged has been proved beyond reasonable doubt. At the outset, I should indorse the recommendable job by the prosecution and defense counsels. Indeed, in Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a criminal case, the prosecution bears the burden of proof and the standard of proof is beyond reasonable doubt. This is in accord with Section 3(2) (a) of the Evidence Act, Cap 6 R.E 2019. In the famous case of John Makolobela Kulwa Makolobela & Another alias Tanganyika Versus Republic (2002) TLR 296, the court noted; A person is not guilty of a criminal offence simply because his defence in not believed; rather, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him which established his guilty beyond reasonable doubts. According to the Charge, the Accused Persons herein stand arraigned for the offense of Murder contrary to Sections 196 and 197 of the Penal Code (supra). In the case of Chacha Ghati @ 38 Gibita vs. Republic (Criminal Appeal No. 682 of 2020) [2024] TZCA 299 (3 May 2024), 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. 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 a human being by the name of JUMANNE OMARY MPENZA died and if so, whether the death was unnatural. According to the records, on 16th June 2022, PW1 and PW10 went to the area of the scene and witnessed the dead body lying on the bush at Visikini area within Kigammboni District. PW5 was a medical doctor who examined the body and discovered that the cause of the death was due to SEVERE HEAD INJURY WITH MASSIVE 39 BLEEDING SECONDARY TO BEATING BY BLUNT OBJECT. He then prepared the Postmortem Examination Report, which was tendered and admitted it as Exhibit P1. PW4 and PW6 testified to have appeared at the area of the scene and witnessed the body lying in the bush, which they identified to belong to JUMANNE OMARY MPENZA, the deceased. PW7 testified to have attended the burial activity of the deceased on 17th April 2022 at Kimanzichana. Based on the above, I am satisfied that JUMANNE OMARY MPENZA died on 16th April 2022. The presence of Exhibit P1 and the testimonies of PW1, PW4, PW5, and PW6 is evident that he died an unnatural death due to Severe Head Injury caused by a heavy blunt object. Having so observed, the next chapter is whether the Accused Persons caused death and, if so, whether it was with malice aforethought. That calls for the evaluation of evidence in the next chapter. From the evidence available on record, no eyewitness witnessed the death of the deceased. Similarly, no one testified to have seen the Accused Persons killing the deceased. It follows, therefore, that the cause of death is wholly circumstantial. Prosecution heavily relies on the Caution Statements of the Accused persons (Exhibits P5 and P7) 40 and the testimonies of PW4, PW6, PW7, PW9 PW11 and PW12. In Said Bakari vs. Republic, Criminal Appeal No. 422 of 2013 (unreported), the Court restated the position in Sikujua Idd vs. Republic, Criminal Appeal No. 484 of 2019 (unreported) that; It is established law that a charge of murder can be fully proved by circumstantial evidence. In determining a case centered on circumstantial evidence, the proper approach by a trial court and an appellate court is to critically consider and weigh all the circumstances established by the evidence in their totality and not to dissect and consider it piecemeal or in cubicles of evidence or circumstances'.' It could appear that everything started with PW7, who testified that on 16th April 2022, while at Kimanzichana within Mkuranga District in Coast Region, at around 14:00 to 15:00 hours in the afternoon, he saw the Motorcycle make TVS with a black sticker, registered as MC 355 DCU (Exhibit P3), heading to Rufiji. By then, it was ridden or driven by the 1st Accused person, IDD OMARY @ CHUMA. He was carrying someone he could not recognize at the material time. He recognized the 2nd Accused person in Court to be the passenger the 1st Accused was carrying. He added that he knew the 1st Accused person as a welding technician since 2021, working at Kwa Mwarabu garage within Biasi area, Mbagala Rangi Tatu. He also 41 fixed his Motorcycle on 6th January 2022 at Mbagala Rangi Tatu, Biasi. The 1st Accused person is commonly known as “Chuma,” but his official names are IDD OMARY NDEKAE. Having seen the Accused persons with the Motorcycle, PW7 called PW4 and asked him who he handled over his Motorcycle. He told him that he had handled the same to the deceased. He reported to have seen the Motorcycle driven by the 1st Accused person at Kimanzichana. He was puzzled to hear that. He thus required PW4 to make follow-ups. PW7 informed this court that the accused persons were slowly riding the Motorcycle. The distance between where he was standing and the accused persons passing while riding the said Motorcycle was approximately five paces or steps. It was around 14:00 to 15:00 hours in the afternoon. PW7 observed further that he lives near the garage where the 1st Accused person used to work. When he passes there, he sees him most of the time. PW4 testified that at around 14:00 hours in the afternoon on 16th April 2022, he was called by Adam Iddi Kitogo (PW7), who told him that he had seen the said Motorcycle driven by Iddi Omary @ Chuma (the 1st Accused person) at Kimanzichana within Mkurunga District, Coast Region. He asked him to whom he handled the said 42 Motorcycle. He told him he had handled it to JUMANNNE OMARI MPENZA (the deceased) since 08:00 hours in the morning. PW7 required PW4 to call the deceased. However, he was not reachable. PW4 then had to go to the parking center and informed the other colleagues. One of the colleagues, Saidi Kiundo (PW6), had an opportunity to hear where the two were heading. He heard them talking about going to Kigamboni, Geza ulole area. PW4 and his colleagues boarded a Motorcycle to Kigamboni and arrived there around 18:00 hours in the evening. They had to pass through several motorcycle parking centers or groups known as “Mgundi” to seek information about the deceased. In the course, they got information that there was a body lying in the bush at Dege, Gezaulole, within Kigamboni area. Having arrived there, they identified the body to be that of JUMANNNE OMARI MPENZA, the deceased. PW6 testified to have seen the deceased for the last time on 16th April 2022, around 09:00 hours in the morning at Biasi, Mbagala Rangi tatu (at the parking center), a place where they wait for passengers. He added that on the fateful day, the deceased was called by a passenger who wanted to go to Geza within Kigamboni District. He asked him what a reasonable fee would be to go there. He 43 had by the time a Motorcycle make TVS, registered as T355 DCU. While still there, the passenger called for the second time. As such, he left the center to pick up the passenger. PW6 also took a passenger to Mbande within Temeke District. Before going there, he passed through Simba Oil Petrol Station at Mbagala Charembe. While there, he saw the deceased with two passengers. PW6 continued to testify that approximately ten paces were the distance between where he was standing and where the said deceased was with his passengers. He demonstrated the distance by working in the Courtroom. One of the passengers was the 1st Accused person, who was familiar to him. He also recognized the other passenger (2nd Accused person), whom he knew by face, not by name. Examined further, PW6 testified that he had known the 1st Accused person from 2015. He also testified to know the 2nd Accused by face since 2021/2022. He used to see him many times before the day of the incident at his garage at Biasi, Mbagala Rangi Tatu. Having seen the deceased with his passengers, PW6 left for Mbande. At around 12:00 hours in the afternoon, PW6 returned to the parking center at Biasi. He continued to wait for passengers until PW4 came around 15:00 hours. PW4 asked him the whereabouts of the 44 deceased. He told him that he had seen him with two passengers at Simba oil Petrol Station. PW4 said to him that the deceased was unreachable on his cell phone. He told him that he had gone to Geza, Kigamboni. PW4 then told him that PW7 had seen his Motorcycle at Kimanzichana. PW4 and PW6 then refueled the Motorcycle and then, together, went to Geza area within Kigamboni. They approached one of the Motorcycle riders' Centres (Mgundi/Kijiwe) and asked them about the deceased. They did not know him, but PW4 showed them a picture of him on his cell phone. Having shown them the picture, they were directed to Visikini near cemeteries, where there was a body lying on the bush. They arrived there at around 17:00 to 18:00 hours in the evening. He saw the dead body lying on the bush with injury on the head and recognized it to belong to JUMANNE OMARY MPENZA. PW8 affirmed the testimonies of PW6 and PW7 that the Accused persons work at his garage, which is located at Biasi area within Mbagala area. PW8 also testified to have been involved in the seizure of the Motorcycle (Exhibit P3) with the help of the 1st Accused person. He also heard him confessing before the mob of people who gathered when seizing Exhibit P3. 45 According to PW10, on 19th April 2022, he was issued with a movement order to enable him to move from Kigamboni District to Rufiji District. Together with other police officers, they started a journey to Bungu in Rufiji District, accompanied by the 1st Accused person. They arrived there at around 11:00 hours and reported to Bungu Police Station. Being directed by the 1st Accused person, they went to Mlanzi Village at a certain Shop owned by BABU and arrested him. Having arrested him, he introduced himself as Jumanne Mnyungu. He told them that the alleged stolen Motorcycle was sold to another person at Jaribu Mpakani. Together with the 1st Accused and Jumanne Mnyungu, they went to Jaribu Mpakani. With the assistance of PW9 (Chairman), they both entered a certain House and found a Motorcycle make TVS with engine number FD4MK1302560 and chassis number MD625AFA2M1K02986. Thereafter, he filled out the certificate for Seizure that was tendered and admitted as Exhibit P4. He also recognized Exhibit P3 (the Motorcycle). Having seized the Motorcycle, they went back to Kigamboni Police Station and handed the Exhibit to the exhibit keeper (PW2). 46 PW11 testified to have recorded the caution statement of the 1st Accused person (Exhibit P5). He testified further that during the interview, the 1st Accused person admitted to have murdered the deceased, who was the Motorcycle raider. He narrated that, on a fateful day, he hired the deceased from Mbagala Rangi tatu, Biasi, to Kigamboni, Dege Visikini area. Having arrived at Dege, Visikini area, the 1st Accused pulled out the hammer from his trouser and attacked the deceased on his head. Having done that, both accused persons parted away with the Motorcycle. I went through Exhibit P5 and noted that the 1st Accused person explained how he executed the death of the deceased. He confesses that he called the Deceased on the fateful day and wanted him to take him and the 2nd Accused person to Dege area within Kigamboni District. The deceased came and carried both of them to the destination area. Having arrived there, near the bush, the 1st Accused pulled out the hammer and attacked the deceased by hitting him on his head, and he fell down. Thereafter, the two picked up the Motorcycle and disappeared, heading to Kilwa Road on the way to Bungu. Having arrived there, they sold it to Babu at Tanzanian Shilings 700,000/=. 47 PW12 also testified to have recorded the caution statement of the 2nd Accused person (Exhibit P7). During the interview, the 2nd Accused person told him that he committed the offense with the 1st Accused person at Visikini area, and the deceased was a Motorcycle raider, one Jumanne Omary Mpenza. The 2nd Accused added further that it was the 1st Accused who attacked the deceased on his head by using a hummer. That thereafter, the 1st Accused drove the Motorcycle to Kibiti, where the same was sold at Tsh. 700,000/=. The 2nd Accused got Tanzanian 200,000/= out of the sale price. I went through Exhibit P7 and noted that the 2nd Accused is confessing how he executed his plan to murder the deceased with the 1st Accused person. It says that on 15th April 2022, the 1st Accused person got him ready for a task on 16th April 2022 at Kigamboni area. On 16th April 2022, at around 09:00 hours in the morning, he went to the 1st Accused’s home. Having had breakfast, the two moved to Charambe area at the petrol station, where the 1st Accused person called a Motorcycle rider and required him to take them to Kigamboni. Within ten minutes, the Motorcycle rider arrived and carried them to Kigamboni area. Previously, he saw the 1st Accused person hiding the hummer in his trouser. Having arrived at a certain area while the 48 driver was in slow motion, the 1st Accused person attacked him on his head by using a hummer, and he fell down. Having done that, they moved with a Motorcycle to Bungu and sold it to Babu. Thereafter, he got his Tanzanian Shillings 200,000/= share. As said before, everything started with PW7. From his evidence, I am satisfied that He recognized the 1st Accused person carrying the 2nd Accused person at Kimanzichana on 16th April 2022. The distance between where he was standing and the accused persons passing while riding the said Motorcycle was approximately five paces or steps, and it was around 14:00 to 15:00 hours in the afternoon. Similarly, I am satisfied that PW6 correctly identified the accused persons being carried by the deceased to Kigamboni area at Simba oil filling station on 16th April 2022. There were approximately ten paces between where he was standing and where the deceased was with his passengers (the accused persons). He demonstrated the distance by working in the Courtroom. The distances explained by PW7 and PW6 to me are enough to recognize the person. Further, PW6 testified to have known the 1st Accused person from 2015, approximately seven good years. According to PW7, he knew the 1st Accused person as a welding technician since 2021, 49 working at Kwa Mwarabu garage within Biasi area, Mbagala Rangi Tatu. He also fixed his Motorcycle on 6th January 2022 at Mbagala Rangi Tatu, Biasi. He also testified to have known the 2nd Accused by face since 2021/2022 because he used to see him many times before the day of the incident at the garage located at Biasi, Mbagala Rangi Tatu. In such circumstances, there is no question of identification but rather recognition, which is, to me, the best evidence and reliable than identification by a stranger. This position was taken in the case of Kenga Chea Thoya vs. Republic, Criminal Appeal No. 375 of 2006, Court of Appeal of Kenya (unreported), where the Court observed as follows; Our own re-evaluation of evidence, we find this to be a straightforward case in which the appellant was recognized by the witness (PW1) who knew him. This was clearly a case of recognition rather than identification and as it has been observed severally by this Court, recognition is more satisfactory, more reassuring and more reliable than the identification of a stranger. With such observation, the Accused persons were the last persons to be seen with the deceased alive. In Mathayo Mwalimu and Another vs. the Republic, Criminal Appeal No. 147 of 2008, the Court observed that if an Accused Person is alleged to 50 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. However, in Richard Matengule vs. Republic, Criminal Appeal No. 73 of 1991 (unreported), the Court stated that such suspicion is not always conclusive unless there is other content corroborative evidence. From the evidence, I am satisfied that they are the last to be seen with the deceased alive. Apart from that, the prosecution evidence is corroborated by Exhibit P5 (caution statement of the 1st Accused person) and Exhibit P7(caution statement of the 2nd Accused person). I understand that it is dangerous to act on the retracted confession. In Tuwamoi vs. Uganda (1967) EA 84, which was later quoted in Hatibu Gandhi and Others vs. Republic (1996) TLR 12, the Court stated; A trial court should accept with caution a confession which has been retracted or repudiated or both retracted and repudiated and must be fully satisfied that in all the circumstances of the case that the confession is true. 51 I am also fortified with the position of the law that it is dangerous to act on repudiated or retracted confession unless there is other corroborative evidence. The danger of acting on such confession was underscored by the Court of Appeal of Tanzania in Hemed Abdallah vs. Republic (1995) TLR 172 when, among other things, the Court stated: Generally it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particulars or unless the court, after full consideration of the circumstances, is satisfied that the confession must but be true. Guarded by the above position, I will determine whether Exhibits P5 and P7 were corroborated by other prosecution evidence. As narrated above, it is clear that the evidence of PW1, PW4 PW6, and PW10 corroborate the fact that the accused persons hired the deceased to Kigamboni area. In line with the evidence of PW5 and Exhibit P1, both testified to have seen the deceased’s body with an injury on the head. This fact corroborates the facts in Exhibits P5 and P7 that the deceased was hit by the 1st Accused by using a hummer. According to PW7, he saw the 1st Accused person driving the Motorcycle (Exhibit P3) at Kimanzichana on a fateful day. This corroborates the fact in Exhibits P5 and P7 that having attacked the 52 deceased, the 1st Accused person drove the Motorcycle to Bungu area and sold the same to Babu. PW9 and PW10 admitted to have been present when the said Motorcycle was seized by the help of the 1st Accused person. He also heard the confession by the 1st Accused person before the civilians who gathered at the time of seizing the said Motorcycle. From the evidence adduced, I am satisfied that the prosecution evidence highly corroborated Exhibits P5 and P7. Furthermore, it is the stance of the law that a confession leading to the discovery of an exhibit related to the incident is reliable. In the instant case, the accused persons' confession led to the discovery of the stolen Motorcycle from the deceased (Exhibit P3). It was the 1st Accused person who led the police officers to where he sold the stolen Motorcycle. In John Peter Shayo and 2 others vs. Republic (1998) TLR 198 quoted in Tumaini Daudi Ikera vs. Republic, Criminal Appeal No. 158 of 2009 (unreported) the Court observed as follows: Confessions that are otherwise inadmissibfe are allowed to be given in evidence under section 31 o f the Evidence Act 1967 if, and only if, they lead to the discovery of material objects connected with the crime, the rationale being that such discovery supplies a guarantee of the truth of that portion on the confession which led to it 53 From the evidence provided, I am satisfied that the accused persons are involved in the saga. They are the ones who murdered JUMANNE OMARY MPENZA. Considering the testimonies of PW1, PW5, PW4, PW6, and Exhibit P1 (Postmortem Examination Report), I am satisfied that the killing was with malice aforethought. In that stance, I am also satisfied that the charge was proved beyond reasonable doubt. The 1st Accused person (DW1) testified that on 17th April 2024, at night hours, he was arrested to Chang’ombe Police Station. Having arrived there, he was asked his three names and thereafter, he was remanded. On 18th April 2022, he was taken out of the Cell and one of the male police officers covered his face. He was then taken to the area he had never been before. Having arrived there, his face was uncovered. He realized later that he was at Kigamboni Police Station. In the afternoon, another police officer took him to another office within the compound. In the office/room, there was a bad smell. There was a table, chairs, iron and plastic pipes, and pieces of moths. The police officer introduced himself as Afande Ally. Thereafter, he pulled out the table drawer, took three papers, and wanted him to sign by his thumb. DW1 also showed to the Court the old scar on his 54 left toe of the leg. On 30th June 2022, he was taken to Mbagala Government Hospital at Zakhiem. There, an X-ray was performed, and it was noted that there was a fracture on the big toe of his left leg due to a gunshot. He tendered a medical certificate from Keko Prison, X-Rey, and a Radiology Report from Temeke Hospital as Exhibit D3 collectively. He denied to have killed the deceased. He also denied to know the 2nd Accused person. Cross-examined by the learned state attorney, DW1 admitted to have said nothing about 16th April 2022 and to not remembering where he was on the fateful day. He also admitted to have not cross- examined Afande Ally (PW11) on the very damaging and incriminating testimonies. Cross-examined further, DW1 admitted to have not cross- examined Afande Hamis (PW1) on why he shot him. He also failed to cross-examine PW8, who confirmed that the 1st Accused person came to the garage with other police officers to arrest the 2nd Accused person. PW10 had a very incriminating testimony, including the fact that it was the 1st Accused person who directed the police officers to where the Motorcycle (Exhibit P3) was sold. He did not contradict or cross-examine him. In Damian Ruhele vs. Republic (Criminal Appeal 501 of 2007) (2012) TZCA 160 (2 March 2012), the 55 Court observed that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness's evidence. In addition, the 1st Accused person admitted not to have objected to the tendering of Exhibit P5 (caution statement). In addition, the 1st Accused person did not object or say anything about the contents of Exhibit P5. At the time of tendering it, he did not even raise an objection relating to torture. As such, it was an afterthought that he was tortured and forced to sign Exhibit P5. Exhibit D3 collectively contains medical certificates dated 30th June 2022. Exhibit P5 was recorded on 18th April 2022 (more than two months before). I have, therefore, failed to relate the certificates with the recording of Exhibit P5. On the strength of the credible and reliable evidence adduced by PW1, PW6, PW7, PW8, PW9, PW11, and Exhibit P5, I find his defense incapable of casting doubt on the prosecution evidence. On his part, the 2nd Accused person (DW2) testified that on 15th April 2022, he was at Karume market selling clothes in the evening. At around 22:00 hours, he moved to Songas, where he lives. While on the way, he met two people at around 23:00 hours, and one of them 56 stopped him, but he refused. Having refused to stop, they quarreled. Then he slapped him. The other person came closer, and both arrested him to Mbande Police Station. Having arrived there, he was asked his name and was remanded. On 17th April 2022, a police officer and he was told to take everything that belonged to him. He was then taken to an area he didn’t know by a Car. There, there was a police officer. He asked his three names, and thereafter, he was remanded. On 18th April 2022, Afande Mgaya (PW12) called him from the Cell. He was taken to a room where another police officer was. He was then given some papers to sign but he refused. Both of them then started to beat him. Since he was beaten and threatened, he decided to sign. He declined to have signed a caution statement that was tendered in Court. He also refused to know the 1st Accused. He lastly implored this Court to find him innocent. Cross-examined by the learned state attorney, DW2 testified that he did not know what was written on the white papers given to him for signing. He also denied to have known Adam Idd Kitogo (PW7). He admitted to have heard witnesses mentioning his name, 57 but in fact, it was not true that they knew him. He admitted that he had not cross-examined those witnesses. From his testimony, DW2 did not say anything about being seen by PW6 at the filling station being carried by the deceased on a fateful day or PW7, who identified him as having seen him at Kimanzichana being carried by the 1st Accused person on the Motorcycle stolen from the deceased (Exhibit P3). He did not say anything about the damaging testimony of PW8, his supervisor at the garage, who testified that the police officers came to arrest him in company with the 1st Accused person. He did not even identify the papers he said to have been forced to sign. He did not cross-examine or contravene PW12, who recorded his caution statement and confessed to him to have murdered the deceased with the 1st Accused person on 16th April 2022 at Kigamboni. Exhibit P7 explains it all that it was the 1st and 2nd Accused persons who planned and murdered the deceased. I find PW6, PW7, PW8, and PW12 credible and reliable witnesses. DW2’s evidence, therefore, didn't cast doubt on prosecution evidence. From what I have tried to endeavor hereinabove, I am satisfied that the prosecution evidence points fingers at the Accused Persons to be the one who murdered JUMANNE OMARY MPENZA, the 58 deceased. The commission of the offense, therefore, was proved beyond reasonable doubt and I thus find the Accused Persons guilty of the offense of murder. In that stance, I hereby enter conviction against IDD OMARY NDEKAE @ CHUMA and SWALEHE ABDALLAH SWALEHE of the offense of murder contrary to sections 197 and 198 of the Penal Code (supra). H.S. MTEMBWA JUDGE 22.10.2024 Mitigation: Defense Counsel for the 1st Accused person: My Lord, the 1st Accused person is the first offender. He is still young. We pray for lenient punishment. Defense Counsel for the 2nd Accused person: My Lord, the 2nd Accused is still young. We pray for lenience. Senior State Attorney: 59 My Lord, the deceased had a constitutional right to life. The Accused persons had no right whatsoever to eliminate him from life. The deceased faced a very untold death. It was due to a severe head injury. Historically, the deceased died an unnatural death, leaving one surviving daughter, aged four years, currently living a miserable and untold life with her grandmother. The two depended solely on the deceased. Since he was still young, he would have helped his family and the entire community. Considering the evidence adduced, we pray that the punishment be entered in accordance with the law. The punishment will deter the community from committing such offenses and will satisfy the need of justice. H.S. MTEMBWA JUDGE 22.10.2024 SENTENCE: As far as this case is concerned, my hands are tied by my oath of office to uphold the Constitution and to respect the laws of the land. 60 In our law, there is only one penalty for the offence of murder, and that is, death by hanging. In the premise, this Court having entered conviction against all Accused Persons, I hereby sentence IDD OMARY NDEKAE @ CHUMA and SWALEHE ABDALLAH SWALEHE each to suffer death by hanging until they die. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 22nd October 2024. H.S. MTEMBWA JUDGE 61