CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: LEVIRA. 3.A.. GALEBA. J.A. And ISMAIL. J.A/1 CRIMINAL APPEAL NO. 147 OF 2022 IBRAHIM ABUBAKARY 1st APPELLANT SALIMA ABUBAKARY @ SIANGA 2nd APPELLANT HADI3A THEDAUS SHIO @ THERESIA 3rd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Moshi) fSimfukwe. 3.V dated 22nd day of December, 2021 in Criminal Sessions Case No, 57 of 2019 3UDGMENT OF THE COURT 9* & 16th August, 2024 ISMAIL, 3.A.: Titus Sebastian Kimaro (the deceased) took his last breath on 28th April, 2019. He was greasily killed in broad daylight and in the full glare of his family members; after succumbing to multiple wounds inflicted by sharp objects allegedly caused by the appellants. The incident occurred at around 15:00 hours at Klbosho Kirima, Moshi Rural District in Kilimanjaro Region. The brief facts as gleaned from the record of appeal inform that on the 28th day of April, 2019, the deceased, a ten-cell leader in his locality, went to mediate a dispute over a piece of land that pitted the appellants' family and a certain Mr, Joseph. In the course of the mediation, the appellants suspected that the deceased was playing the role of a partial mediator who leaned on their opponent's side. This is alleged to have enraged the appellants and decided to attack him with machete, arrows and a spear, causing multiple cut wounds that led to his death. This included a dismembering of the palm from the deceased's right arm. As this was happening, the deceased's wife, Regina Titus, PW2, came to the scene of the crime after hearing some noises coming from PW2's estate, her neighbour. She rushed to find out what was happening. To her amazement and sheer horror, she saw the 1st appellant throwing an arrow at the deceased. It hit him on the leg and he fell down. This was followed by multiple attacks launched by the 2nd and 3rd appellants using machetes, before the 1st appellant pounced on the deceased yet again, this time stabbing him in the shoulder. The 3rd appellant allegedly had another shot, this time using a spear to stab the deceased in the back. The last wave of attacks came from the 1st appellant who allegedly chopped off the deceased's right palm, As all this was happening, the 2 deceased's daughter, Esther Titus Kimaro, PW3 and Francis Ferdinand Mwacha, PW4, were at the scene of the crime and witnessed the entirety of the incident News of the Incident reached the Police who sent E. 4932 Sgt. Multo, PW5, who visited the scene of the crime. Besides seizing a sword, a machete, a bow and 19 arrows, PW5 took the body of the deceased to Kilimanjaro Christian Medical Centre (KCMC hospital) where it was subjected to a postmortem examination, carried out by Dr. Patrick Amsi, PW1. The Postmortem examination report, exhibit PI, revealed that the death of the deceased was caused by haemorrhage caused by multiple cut wounds. The Weapons, seized vide a seizure certificate, exhibit P3, were handed to E. 4447 CpI. Ibagi, PW6, for safe custody. An investigation in respect of the matter was carried out by PW8 who found that the appellant had a culpable role. Subsequent thereto, the appellants were arraigned in court facing a murder charge whose involvement they denied. In their defence, the appellants valiantly denied the charge. They contended that their family was involved in a religious quarrel with their neighbours. The quarrel culminated into the torching of their house. They wondered how they were associated with the incident that they had no hand in or knowledge of. Regarding the testimony of PW3 and PW4, the appellants' contention was that the duo was not at the scene of the alleged crime. The trial court was convinced that the prosecution had made out a case against the appellants. It convicted them of murder and sentenced them to suffer death by hanging. Not surprisingly, they have preferred an appeal to this Court challenging the conviction. The memorandum of appeal filed on 27th April, 2022 had eight grounds of appeal, and it was followed by two supplementary memoranda of appeal instituted on 26th July, 2024 and 30thJuly, 2024, respectively. These memoranda of appeal which were filed by the appellants themselves were abandoned when the matter came for hearing on 5th August, 2024. On this date, the counsel who represented the appellants informed the Court that they intended to file a supplementary memorandum of appeal that would replace the abandoned memoranda. The new supplementary memorandum of appeal raised nine grounds of appeal whose substance is paraphrased as hereunder; 1. The trial Judge erred in law and in fact for failing to sufficiently sum up the case to assessors as required by section 298 (1) o f the Criminal Procedure Act (CPA) while basing her conviction on the assessors'opinion. 4 2. The trial Judge erred in law and in fact for holding that the chain o f custody was property established. 3. The trial Judge erred in law and in fact by convicting the appellants based on contradictory, inconsistent and implausible evidence submitted by the prosecution. 4. The trial Judge erred in Jaw and in fact by convicting the appellants without considering that there was a need o f corroborative evidence in the form o f a DNA and fingerprints. 5. The trial Judge erred in law and in fact for refusing to consider the defence evidence contrary to the requirement o f the law that every witness must be believed unless there are cogent reasons to the contrary. 6. The trial Judge erred in law and in fact for relying on exhibits which were wrongly admitted. 7. The trial Judge erred in law and in fact for relying on [the] evidence o f the deceased's relatives without warning herself and approach it with great care and caution. 8. The trial Judge erred in law and in fact for not drawing adverse inference against the prosecution for failing or refusing to call material witnesses and tender necessary exhibits. 9. The trial Judge erred in Jaw and in fact by convicting the appellants while the prosecution had notproved the case beyond reasonable doubt. When the matter was called on for hearing, the appellants were represented by a battery of practitioners. These were Messrs. Mashaka Ngole, David Shilatu, Dominicus Nkwera, Desderius Hekwe, Hamisi Mayombo and Ms. Lilian Mushemba, all learned counsel. On its part, the respondent Republic enlisted the services of Ms. Rose Sulle, learned Senior State Attorney, assisted by Mr. Isack Mangunu, learned State Attorney. It is instructive that, in the course of the submissions by the counsel for the appellants, grounds seven and eight were abandoned, leaving the appeal with seven grounds which were argued by Messrs Ngole and Nkwera, while the rejoinder was done by Mr. Hekwe. The appellants' gravamen of complaint in ground one was that assessors who sat with the learned trial Judge were not sufficiently summed up consistent with the requirement of section 298 (1) of the Criminal Procedure Act (CPA). Mr. Ngole's argument, which was seriously contested by the respondent's counsel, was that vital points of law and substance of the evidence were not stated. This included the ingredients of murder, the question of standard of proof and the person on whose shoulders the burden of proof lies. Mr. Ngole further contended that matters of credibility of witnesses, and the defence testimony adduced by the appellants were also left unguided. He contended that, whilst admitting that the testimony of PW2 was expunged, as it appears at page 308 of the record, opinions of the assessors factored in the testimony of PW2 which was subsequently chalked off by the trial Judge. The teamed counsel argued that the recourse, in such circumstances, is to order a 'retrial, but he quickly submitted that such recourse would not make any legal sense in this case because the evidence of PW3 and PW4 used to convict the appellants was legally wanting, rendering the case for the prosecution weak. Mr. Mangunu did not find anything blemished in the manner the trial Judge summed up to the assessors. He argued that all issues that Mr. Ngole and the appellants are jittery about were sufficiently addressed. On this, he referred us to pages 164 and 165 of the record of appeal. He found nothing meritorious in this ground of appeal and urged us to dismiss it. This ground of appeal raises a narrow issue which is whether the assessors were summed up before they returned the verdict of guilt against the appellants. As we address this point, it serves us well that we should begin by reproducing the substance of section 298 (!) of the CPA which casts a duty on a judge to conduct a summing up to assessors. It states as follows: "(1) Where the case on both sides is dosed, the judge may sum up the evidence for the prosecution and the defence and shall then require each o f the assessors to state his opinion orally as to the case generally and as to any specific question o f fact addressed to him by the judge, and record the opinion. (2) The judge shall then give judgment, but, in doing so, shall not be bound to conform to the opinions o f the assessors./[Emphasis added] There is no gainsaying from the foregoing that summing up to assessors is an imperative duty of a Judge in all eases where an aid of assessors is enlisted. This entails giving a description of the evidence adduced by both parties in a case. The duty extends further to explaining the law, draw the assessors' attention to all salient factual accounts in a case and their relation to the law. This duty must, as a matter of law, precede the judge's solicitation of the assessors' opinions in the case - see: Washington s/o Odindo v. Republic [1954] 21 EACA 392. Noteworthy, is the fact that what constitutes adequate summing up to assessors is not without the known minimum standards. Thus, in Hatibu Ghandhi & Others v. Republic [1996] T.L.R. 12, we held: 8 "It is sufficient for the learned trial judge to state the substance or gist o f the case on both sides to enable the assessors' opinions to be formed on the case in general or on any particular point required," The contention by the learned counsel for the appellants is that what constitutes a summing up to assessors in this case is nothing better than a mere charade that was too insufficient to meet the threshold of a proper summing up. This is what has triggered their prayer for our finding that no proper summing up was done by the trial court. We are alive to the fact that, where the summing up is inadequate or contains non-direction or misdirection on vital points of the case, the same is said to have failed the test of a proper summing up see - Msigwa Matonya & 5 Others v. Republic, Criminal Appeal No. 492 of 2020 [2022] TZCA 490 (22 July 2022, TANZLII). We have dispassionately scoured the record of appeal, particularly the summing up done by the trial Judge to the assessors with whom she sat in the matter. Contrary to the learned counsel's contention that the summing up was inadequate and violative of the law, the same contains all ingredients of a proper summing up. Matters relating to both sets of evidence, burden and standard of proof, ingredients of the offence with which the appellants stood charged and the substance of the relevant law, as it currently obtains, were satisfactorily addressed to the assessors, and we find nothing to raise eye brows on. The learned trial Judge went further and addressed the assessors on the plight of the testimony of PW2 which, as it were, was chalked off. But assuming, even for the sake of argument, that the summing up to assessors was a pale shadow of what it ought to be, the crucial question would still have been: what would be the consequence of such infraction? The settled position is that, where such infraction is established, and if no prejudice is suffered by the accused person (the appellant), such anomaly is curable under section 388 of the GPA. This is in view of the fact that, hearing of a case with the aid of assessors is a procedural requirement borne out of the procedural law as enshrined in section 265 (1) of the GPA. We accentuated this position in Safari Anthony @ Mtelemko & Another v. Republic, Criminal Appeal No. 404 of 2021 [2023] TZCA 17768 (23 October 2023, TANZUI) wherein several of our previous decisions on the matter were cited and quoted. These include, Kobelo Mwaha v. Republic [2010] T.L.R. 196 whose excerpt states as hereunder: 1'Trial with the aid of assessors is procedural law. Section 265 o f the Criminal Procedure Act [Cap 20 R.E. 2002] stipulates that all trials in the High Court should be held with the aid o f assessors. To gauge the effect of 10 non-compliance with any rule o f procedure, the test is always whether the breach o f that rule has in any way prejudiced the accused and thus led to a miscarriage ofjustice. ''[Emphasis added] Regarding the requirement that prejudice against the accused persons must be demonstrated, the Court relied on the holding in Michael Luhiye v. Republic [1994] T.L.R. 181 in which the following observation was made: "For a trial in a criminal case to be a nullity it must be shown that the irregularity was such that it prejudiced the accused and therefore occasioned failure o f justice; in this case the Trial Judge gave a summing-up o f the evidence to the assessors, and took into account as to the guilt or otherwise o f the appellant and therefore it cannot be declared a nullity. "[Emphasis is supplied] See also: Flano Alphonce Masalu @ Singu & 4 Others v. Republic, Criminal Appeal No. 366 of 2018 [2020] TZCA 197 (30 April 2020, TANZLII). We, in consequence, hold that this ground of appeal is destitute of fruits and we dismiss it. li The appellants' contention in ground three is that the prosecution's evidence is laden with contradictions and variances. Singled out for criticism by the appellants, as emphasized by Mr. Ngole, is the testimony of PW3 and PW4 which is said to be at variance with each other on the time that the duo witnessed the events that preceded and succeeded the deceased's death. The contention by Mr. Ngole, subsequently amplified by Mr. Hekwe is that, it would not be possible that PW3 and PW4, who arrived at the scene of the crime at different times would be able to witness similar events, A similar contention has been made by the appellants at page 4 of their joint written submissions. Mr. Mangunu did not find anything discrepant in the testimony between the said witnesses. He argued that there is no dispute that the death of the deceased was caused by cut wounds and that PW3 and PW4, both of whom were at the scene of the crime, saw what happened and they both had a similar story. The learned State Attorney argued that, the fact that PW4 did not see PW3 and vice versa does not mean that they were not both at the scene of the crime. While admitting that PW3 and PW4 arrived at the scene of crime differently, Mr. Mangunu took the view that they both observed the same sequence of events and that it was unsurprising that they all witnessed the same thing. This, in his view, ruled 12 out the contention that there was a contradiction between the version of the two witnesses. Mr, Mangunu tried to convince us to see that, if anything, what is considered as contradictions are of minor variances. He invited us to invoke our reasoning in Dickson Elia Nsamba Shapwata v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 (30 May 2008, TANZUI); and George Lazaro Ogur v. Republic, Criminal Appeal No. 69 of 2020 [2023] TZCA 49 (23 February 2023, TANZUI), and see that the cited contradictions are trivial and not affecting the central story. We have reviewed the counsel's rival submissions on the contention. We must admit that, we have struggled to make sense out of what the appellants7 counsel consider to be a variance in the witnesses factual account. We can state, without any fear of contradiction, that we have gathered nothing to lend any credence to the said counsel's contention. A review of the testimony shows that, whereas PW3 arrived at the scene of the crime 15 minutes after her mother, PW2, had left for the scene of the crime, PW4 who was informed of the happenings at the appellants' home at 14:45 hours, has categorically stated that he arrived at the scene of the crime at around 15:15 hours. This is the same time PW3 set her foot at the scene of the crime. It is no wonder that each of the witnesses narrated, in a resembling fashion, every incident that occurred and the 13 role that the appellants allegedly played in facilitating the deceased's demise. This is because they were both present at a time when the entire chain of events was unfolding. We are in agreement with Mr. Mangunu's contention and hold that no variance existed in the testimony of these witnesses. Mr. Mangunu has also convinced us to hold that, even if it is argued that such variance and contradictions existed, the same were not of any fundamental value. They are minor contradictions which did not affect the central story. We are in all fours with the learned State Attorney's contention. It is trite law, and there is no dearth of case law to the effect that, variances and inconsistencies in the witnesses testimony can only be considered adversely if they are fundamental. If they are trifling in nature and they do not corrode the central story, the same should be ignored. In Luziro s/o Sichone v. Republic, Criminal Appeal No. 231 of 2010 [2011] TZCA 80 (5 July 2011, TANZLII), this Court held: "H/e shall remain alive to the fact that not every discrepancy or inconsistency in witness's evidence is fataI to the case/ minor discrepancies on detail or due to lapses o f memory on account o fpassages o f time should always be disregarded. It is only fundamental discrepancies going to discredit the witness which count." Crucially, the foregoing position was a recapitulation of what we held in Sahoba Benjuda v. Republic, Criminal Appeal No 96 1989 (urireported). We guided as follows: "Contradictions in the evidence of a witness affects the credibility o f the witness and, unless the contradictions can be ignored as being only minor and immaterial the court will normally not act on the evidence o fsuch witness touching on the particularpoint unless it is supported by some other evidence. "[Emphasis is supplied]. We are of the fortified view that nothing meritorious has been raised by the appellants in this ground and, as a result, we dismiss it. Grounds two and six of the appeal take a swipe at the admission of exhibit P2 and the chain of custody of the said exhibit was not established. Regarding admissibility, the contention by Mr. Ngole was that, the provisions of section 246 (2) of the CPA were flouted as the said exhibit was not disclosed during the preliminary hearing. He fortified his argument by contending that the defence side cited the case of Masamba Musiba v. Republic, Criminal Appeal No. 138 of 2019 [2021] TZCA 270 (28 June 2021, TANZLIL But the trial Judge distinguished it from the circumstances of the trial proceedings and admitted the exhibit. 15 On the chain of custody, the argument raised by Mr. Nkwera is that this was not established as Inspector Kapusi who seized exhibit P2 did not explain where he kept it before handing it to PW6, the exhibits keeper. He argued, as well, that labelling of the exhibit was not done until 29th April, 2019, making it prone to tampering as it could not be said with certainty if what was labelled is what was seized from the scene of the crime. This contention was supported by the learned State Attorney who, besides highlighting the anomalies, submitted that, not even the window provided under section 289 (1) of the CPA was utilized by the prosecution to have the exhibit tendered as an additional testimony. Regarding the chain of custody of the said exhibit, Mr. Mangunu was also of the same contention that the chain of custody has not sufficiently explained out from the time it was seized to the time it was handed over to PW6. He joined hands with his counterparts and urged us to expunge exhibit P2 from the record. We have given due weight to the parties' unanimous submissions. We, nonetheless, take the view that these two grounds need not detain us, as the record of appeal quite clearly shows that the prosecution's reliance on the exhibit was not made known to the appellants during the is proceedings that preceded the trial. This means that, its tendering and eventual admission was inconsistent with the law and, therefore, irregular. It ought to have been refused. We find ground six meritorious and we allow it. We, accordingly, accede to the unanimous invitation by the learned counsel, and order that this exhibit be and is hereby expunged from the evidence adduced in the trial court. Crossing off of exhibit P2 renders grounds two and six superfluous, as well as ground four that queried the prosecution's failure to conduct DNA test and finger print tests in respect of the weapons seized. We take a firm view that validity of ground four of the appeal would exist had we found it in the appellants' favour in the said ground. The appellants' consternation in ground five is that their defence testimony was not considered when the trial Judge made her findings. Mr. Ngole argued that, in law, an accused person's defence must be considered when a decision is made. He argued that the issue framed by the court on whether the deceased was killed by the appellants was decided without considering the defence testimony. When probed by the Court, the learned counsel conceded that it is true that the defence testimony was considered when the court determined the last issue. He, however, argued that each issue had its distinct set of defence which should have been factored in when such issues were resolved. On the consequence of the alleged failure, Mr. Ngole argued that this being the first appellate Court, it is empowered to re-evalaute and appraise itself of the defence testimony and make its own findings. This contention has been disputed by Mr. Mangunu who, besides arguing that the appellants' defence was composed of general denial of every allegation, including their knowledge of the deceased, submitted that the trial Judge considered the defence. With respect to the first issue, reference was made to page 311 of the record at which the appellants" defence on the first issue was considered. While their defence of aZ/ft/was also considered at page 312. Mr. Mangunu referred us to the decision in George Lazar Ogur (supra) and argued that defences which contain a general denial cannot cast any doubt on the prosecution's testimony. From the parties' contentions, two issues emerge. The first is whether the appellants' defence testimony was not considered and, the second, if the answer is in the affirmative, the consequence of such infraction. Consideration of the defence testimony is an imperative requirement that goes to the root of the validity of the judgment composed and pronounced by a court. It is part of the requirement set out in section 312 (1) of the CPA which guides on how the judgment of 18 the court should be composed and what it should contain. Besides other things, a judgment delivered under section 311 of the CPA must contain points for determination, the decision thereon, and the reasons for the decision. These are the attributes of a quality judgment and, by points for determination, the law envisioned that all matters which constitute the parties' cases should be factored in and weighed alongside one another to arrive at a conclusion on whether a case has been made out against the accused person. Inevitably, this would include the defence testimony. This position has been emphasized in numerous decisions of this Court, In Mkulima Mbagala v. Republic, Criminal Appeal No. 267 of 2006 [2011] TZCA 181 (24 February 2011, TANZLII) quoted in our subsequent decision of Abdallah Seif v. Republic, Criminal Appeal No. 122 of 2020 [2022] TZCA 196 (14 April 2022, TANZLII), we held as follows: "For ajudgment o f any court o fjustice to be held to be a reasoned one, in our respectful opinionr it ought to contain an objective evaluation o f the entire evidence before it. This involves a proper consideration of the evidence for the defence which is balanced against that of the prosecution in order to find out which case ... is more cogent In short, such evaluation should be a conscious process o f analysing the entire evidence dispassionately in order to form ah 19 informed opinion as to its quality before a formal conclusion is arrived at [Emphasis is added] It follows that, failure to consider the accused's defence is a fatal irregularity to the decision - see: Abel Masikiti v. Republic, Criminal Appeal No. 24 of 2015 [2015] T2CA 500 (24 August 2015, TANZLII). In our case, the remedy would, as Mr. Ngole rightly contended, entail stepping in the shoes of the trial court and re-evaluate the evidence - see: Abdallah Seif v. Republic (supra). This would be the case if the alleged infraction had truly been in existence but, as correctly submitted by Mr, Mangunu, the contention by his counterpart lacks the potency that would convince us to go along with It We are satisfied that each of the defences which were put forward by the appellants, including the defence of alibi, were part of the points for determination and that such testimony was put on a scale against that of the prosecution. In the end, the trial Judge found that the prosecution's testimony was more cogent, hence the decision to hold the appellants culpable of the complaints preferred against them. We hold the view, in consequence, that this ground is hollow and we dismiss it. In ground nine of the appeal, the appellants are critical of the trial court's finding of guilty while the case for the prosecution was not proved 20 beyond reasonable doubts. Learned counsel for the appellants have based their contention on several issues. One, that PW5 who identified the deceased and found him alive failed to record his dying declaration which would mention names of the persons who were responsible for his death. Two, that the testimony of PW3 and that of PW4 were at variance with one another and therefore discrepant. Three, lack of specificity of the testimony of PW1 on the nature of the wounds. Four, that failure by the prosecution to call witnesses like Joseph who is alleged to be in dispute with the appellants that the deceased went to mediate, and PW4's wife who informed him of the existence of the feud in the appellants' home. Mr. Mangunu is convinced that the case against the appellants was sufficiently proved. He argued that all elements of murder were laid bare. These included the facts that the deceased died; that he was killed by the accused persons (the appellants); that the death was unnatural; and that there was no justifiable cause. The learned counsel further argued that PW3 proved that Titus Sebastian Kimaro is the deceased and that, together with PW4, witnessed the death of the deceased allegedly in the hands of the appellants. The learned counsel further contended that PW5 testified that he found the body of the deceased in a pool of blood at the appellants home and that the latter had locked themselves in. Regarding 21 malice aforethought, Mr. Mangunu argued that, looking at the areas attacked, number of blows, nature of the wounds, the lethal nature of the weapons used together with the conduct and utterances of the appellants during the incident are all indicative of the fact that the killing was purposeful and desired. He submitted that common intention can also be inferred by looking at the manner in which each appellant participated in actions that led to the deceased's death. We have carefully heard and made sense of the rival arguments. We have unfleetingly reviewed the record of appeal as weil. In our view, the question that calls for our determination is whether the case against the appellants was established at the required standard. The canon of evidence requires that the person who levels an allegation against the other must prove the existence of such allegation. This is the kernel of section 110 of the Evidence Act the substance of which stipulates as follows: "(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence o f facts which he asserts must prove that those facts exist (2) When a person is bound to prove the existence o f any fact, it is said that the burden o fprooflies on that person With respect to criminal cases, such burden rests on the shoulders of the prosecution and the standard of proof is beyond reasonable doubt. This entails the establishment of existence of all ingredients constituting the offence charged. In the case of murder which is the subject of the instant appeal, such proof would entail leading in evidence to prove that by the appellants' unlawful act or omission the deceased lost his life. Such acts or omission must have been clothed with malice aforethought. It is now a certainty that Titus Kimaro lost his life on 28thApril, 2019 and that such death was unnatural, caused by multiple cut wounds as testified by PW1 who conducted an autopsy into the death of the accused. On who caused the death, the testimony of PW3 and PW4 presented a unanimous view that death of the deceased occurred at the hands of the appellants. This testimony came from the persons who saw things happen and that, though challenged by the appellants, such challenge was general and that its potency was significantly blurred when it lacked specificity and when the appellants attempted to introduce the defence of alibi which failed to meet the threshold set out by law. 23 What we clearly gather from the record is that the case against the appellants was founded on the testimony of PW3 and PW4 who, as we held earlier on, were persons who were at the scene and saw everything that happened. Theirs is an eye witness account which, in our jurisprudence, it is taken to be the best evidence. This is the view taken by this Court and it has been accentuated in many a case. We reiterated this position in Marceline Koivogui v. Republic, Criminal Appeal No. 469 of 2017 [2020] TZCA 252 (26 May 2020, TANZUI) in which we held as follows: "... the prosecution account was direct evidence which is in fine with the provisions o f section 62 (1) (a) o f the Evidence Act [CAP 6 R.E 2002] whose value was emphasized in the case o f COMMONWEALTH VS WEBSTER 1850 Vol. 50 MAS255 where Shaw CJ stated: The advantage o fpositive evidence is, that it is the direct testimony of a witness to the fact to be proved' who if speaks the truth, saw it done; and the question is, whether he is entitled to belief." Our scrupulous assessment of the testimony adduced by the PW3 and PW4, creates nothing on which to build the impression that the same was incredible. This testimony is nothing short of a first-hand description of what they saw happen in the incident that claimed the deceased's life. 24 In our considered view, this testimony, which was amply corroborated by PW1 and PW5, constituted the solid basis on which conviction of the appellants was grounded. The counsel for the appellants have punched holes in the prosecution's case. One of the areas of concern is the failure by PW5 to record the deceased's dying declaration. With respect to the learned counsel, this contention is profound flawed, especially where there is a testimony of people who testified on what happened and the role that each of the appellants played. The dying declaration would not come with any different or better testimony on what caused the death of the deceased. We reject this contention out of hand. Next was the contention that there was variance in the testimony of PW3 and PW4. This aspect of the appealwas dealt with when we disposed of ground three of the appeal and we see no need of revisiting it yet again. Suffices to hold that this contention is also devoid of merit. Equally incomprehensible, in our view, is the contention that the testimony of PW1 did not provide the specifics of the nature of the wounds that the deceased carried. We do not think this is the case for, both exhibit PI and PWl's oral testimony gave details of what he observed when he 25 conducted the postmortem examination. The following excerpt from PW1 helps to quell fears that the details were not given: "The body was full o f blood, wounds on both shoulders caused by a sharp object, a wound on the right thigh caused by a sharp object, there was another wound on the rear o f the right leg below the knee which extended to the bone, the right arm was cut at the wrist and amputated." Nothing couid be more revealing and specific than this part of the testimony. It gave the details of the state of the body of the deceased and the wounds that he succumbed to. We, in view thereof, find the appellants' contention baseless. On the failure to call witnesses, our hastened view is that these witnesses were not material as far as proof of charge of murder is concerned. They did not have what it takes to prove the case against the appellants. Overall, in respect of whether the deceased was killed by the appellants, our considered view is that the evidence adduced during the trial did what it had to prove this allegation. This, then, takes us to the second segment which requires us to guide on whether malice aforethought, another ingredient of murder, was established. The law has set out the manner in which malice aforethought may be deemed to have 26 been established. This is provided under section 200 of Penal Code which stipulates as follows: "200. Malice aforethought shall be deemed to be established by evidence proving any one or more o f the following circumstances- (a) an intention to cause the death o f or to do grievous harm to any person, whether that person Is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death o f or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishabie with a penalty which is graver than imprisonment for three years; (d) an Intention by the act or omission to facilitate the flight or escape from custody o f any person who has committed or attempted to commit an offence." What comes out of this prescription is that, invariably, malice aforethought is inferred from the conduct of the accused person or the 27 impact that his actions left on the deceased. Courts will have to assess the circumstances of each case and be able to gather and infer the intention that one had when he committed the incident. We expounded this position in Makungu Misalaba v. Republic, Criminal Appeal No. 351 of 2013 [2014] TZCA 208 (30 October 2014, TANZLII) which made reference an earlier decision in Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 [1999] TZCA 9 (10 June 1999, TANZLII) in which it was held: "... usually an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors\ including the following: (1) the type and size o f the weaponf if any, used in the attack; (2) the amount o f force applied in the assault; (3) the part or parts o f the body the blows were directed at or inflicted on: (4) the number o f blows, although one blow may, depending upon the facts o f the particular case, be sufficient for this purpose; (5) the kind o f injuries inflicted; (6) the attackers utterances, if any, made before, during or after the killing; and (7) the conduct o f the attacker before and after the killing." Our review of the evidence on record presents a picture similar to what Mr. Mangunu addressed us on. It is simply that the appellants' 28 actions were not out of sheer accident. These are attacks which were well coordinated, meaning that they were premediated. This is gathered from the areas of the deceased's body which were singled out for attack, the repetitive nature of the attacks i.e. number of blows and nature of the wounds (PW1, PW3 and PW4 testified that the deceased's palm was separated from the arm), arid the lethal nature of the weapons used. The tools used to execute the attacks were an assortment of lethal weapons able to terminate one's life at the first time of asking. The testimony of PW3 and PW4 has also captured utterances that the appellants hurled in the course of executing the killing and are all indicative of the fact that the killing was intentional and premeditated. At some point, the 1st appellant was quoted as threatening whoever tried to shield or rescue the deceased from further onslaught from the appellants. The cumulative sense gathered from all the above is that, the appellants killed the deceased with intent to do so. They had malice aforethought. It is our firm finding that the case against the appellants was sufficiently proved, and that the trial Judge was not erroneous when she arrived at that conclusion. This ground is lacking in merit and we dismiss it. 29 In consequence of the foregoing, we find the appeal barren of fruits. Accordingly, we dismiss it. DATED at MOSHI this 15th day of August, 2024. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 16th day of August, 2024 in the presence of Mr. Martin Kilasara, learned Counsel holding brief for Messrs. Mashaka Ngole, David Shilatu, Dominicus Nkwera, Desderius Hekwe, Hamisi Mayombo and Ms. Lilian Mushemba, all learned Counsel for the Appellants and Ms. Bertina Tarimo, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL