Criminal Session 86 of 2022 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) SITTING AT MPANDA CRIMINAL SESSION NO. 86 OF 2022 (Original PI. No. 17 Of2022 before Katavi RMsCourt) REPUBLIC VERSUS 1. AUGUSTINO JOHN @NYOMEZI 2. ALPHONCE JOHN @NYOMEZI ................................ ACCUSED 3. AURELIA DAMIANO @MANYOLE 4. MOHAMEDI HUSSEIN @MGAJA JUDGMENT 18th October & 01st November, 2024 MRISHA, J. The deceased person Marietha Thomas Mambwe whose age is estimated to be above 80 years old, was found dead in her house at Mpanda Hotel within Mpanda District in Katavi Region. Her body was discovered on 18.04.2022 by her granddaughter one Maria Titus being in an unusual condition, as it was having some injuries and blood stains. 1 In fact, no one witnessed those who caused her death. However, the matter was reported to the Village chairperson, then to the Police who arrived at the scene of crime on the following day being accompanied by a doctor. After identification of the deceased's body, the doctor conducted an autopsy and observed that the deceased's death was caused by haemorrhagic shock due to bleeding. After the investigation, it was revealed that the deceased's death was caused by the first, second, third and fourth accused persons due to witchcraft beliefs, as it was alleged that the third accused who is the daughter in law of the deceased, was accusing the deceased for bewitching her husband one John Nyomezi who then passed away sometime in 2015. The same accusations are also said to have been made by the first and second accused persons who then conspired with the third accused, their mother, to hire the fourth accused whom they believed to be a witchdoctor, in order to make some medicine for the first and second accused not to be seen when they go to fulfil the killing mission of their grandmother (the deceased person). The agreement is said to have been made after the fourth accused made divination and told the first, second and third accused persons that it is the 2 deceased person who was bewitching them and the one who caused the death of the third accused's husband. Following, such accusations, the first, second, third and fourth accused persons were arrested, interrogated and arraigned before this court with an information of murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2019 [Now R.E. 2022]. However, all of them pleaded not guilty to the said charge, thus necessitating for the prosecution Republic to come up with a number of five witnesses in order to prove the offence of murder against them. The first witness was PW1, Janeth Alphonce Nyomezi. In her sworn testimony, she told the court that on 18.04.2022 she was approached by Maria Titus, the deceased's daughter who informed her that her grandmother had been killed, then she rushed to the deceased's home where found the deceased died and had three injuries on her body parts; one on her head, another on her eye and on her neck. Thereafter, the village chairperson one Christina Mshave arrived at the crime scene and communicated with the police who also arrived at the scene of crime and found the deceased body lying on the mattress inside her room. PW1 described the deceased as a person who used to live alone following her husband's demise some time ago. She also told the court that after conducting 3 investigation, the police interviewed and recorded her witness statement at Mpanda Police Station. She told them that the deceased had a conflict with Aurelia Damiano (the third accused) and other family members who used to condemn the deceased for bewitching the third accused's son and killing her husband who was the father of PW1, the first and the second accused persons. She also testified to have told them that the conflict escalated until the deceased died. PW1 also told the court that the police conveyed her to Mpanda Police Station, then to the house of the third accused where they managed to arrest Augustino John, the first accused and Mohamed Hussein @Mgaja, the fourth accused whom PW1 described as a witchdoctor who was found making some medicine for the first accused thereat. PW1 testified further that the first and third accused persons had no good relationship with the deceased person for the same reason that they used to blame her for bewitching them and killing the third accused's husband, and were not going to the house of the deceased person. That the sons of the third accused person namely Augustino John Nyomezi (first accused) and Alphonce John Nyomezi (second accused) also entered into that conflict and condemned deceased for bewitching them. 4 Before the court, PW1 identified all the four accused persons and, during cross examination she said that she was informed about the death incident, she did not see a person or persons who committed the offence and does not know who committed that offence. The accused persons were not at the crime scene. She is 62 years old; she has had no conflict before. She does not remember when the husband of the third accused died. The police entered into the deceased's house and told her they think there was a conflict. Also, PW1 responded that the last person to be seen with the deceased was Evelina Alphonce, the deceased person was 80 years old. She is the one who told the police that the third accused had a conflict with the deceased and that the children of that accused were also in conflict with the deceased and were not going to the house of the deceased. She added that the deceased her eight children including herself, and that the third accused went to the witch doctor with other accused persons and was the one who took the first and second accused persons to the witchdoctor. She also responded that she had a conflict with the first, second and third accused persons to the extent of not talking to each other. She further responded that the third accused condemned the deceased person who is her mother, for bewitching them. 5 Another witness was PW2, Dr. Japhet Chomba who testified that on 19.04.2022 his superior boss assigned him to go to the mortuary of Mpanda District Hospital and conduct post mortem examination of a deceased person. He went to the said room where he met with the mortuary attendant, the deceased's relatives and a Police Officer who handed over to him some paper for conducting post mortem examination. According to PW2, the deceased's name was Marietha Thomas Mambwe and the same was introduced to him by the deceased's relative one Eveline Nyomezi. In the mortuary room the deceased body was identified to him by the relative, then he began to conduct post mortem examination whereby he found the body with three injuries; one was on her occipital lobe or a portion of the back of a human being, two, on her face near the eyes and there was blood spreading on her face, head and neck. Another injury observed by him, was on the deceased's neck and he saw some blood on her clothes and bed sheet which was used to cover her body. That having conducted such examination, he observed that the cause of deceased's death was due to being cut with a sharp object resulting to injuries on her body which led to heart failure due to severe bleeding of the injuries the deceased had sustained. 6 That after conducting post mortem examination, PW2 handed over the deceased body to the deceased relatives for burial process, and he also filled the post mortem examination report and handed it over to the Police Officer. The said post mortem examination report was tendered by PW2 and admitted by the court as Exhibit P1 without any objection from the defence side. When cross examined, PW2 said the cause of death was heart failure due to hypovolemic shock; he added that the severe bleeding was caused by cutting of the blood vessel. The next one was PW3, H. 9036 Corporal Abuu, a police officer whose evidence was to the effect that on 18.04.2022 he was assigned to interrogate the fourth accused, Mohamed Hussein Mgaja for the offence of murder. The interrogation was conducted at the investigation room of Mpanda Police Station. That, after introducing himself to the said accused, cautioning and informing him his statutory rights, the accused understood them and consented to make his cautioned statement alone and in Swahili language. He began to record the cautioned statement of that accused person on 18.04.2024 at 1300 hours and finished at 1430 hours. That the said accused told him that he is a traditional healer and he is the one who treated the first accused traditionally. The accused told him that he acknowledges the conflict in the family of the late John Nyomezi and that such 7 conflict was associated with witchcraft beliefs. That he conducted a divination and informed the family of the late John Nyomezi that the deceased is the one who was bewitching them. The accused also told him that he gave the accused persons some medicine to use when taking bath, so that they could not be arrested. PW3 also testified that after recording the said statement, he gave it to the fourth accused to read and after reading, the latter confirmed to him that the same was correct, and then both of them appended their signatures on that document. PW3 prayed to tender the said cautioned statement as an exhibit. Likewise, no objection regarding such prayer was raised by the adverse side. Hence, the court admitted it as Exhibit P2. Apart from that testimony, PW2 told the court that on 18.04.2022 at around 1500 hours, he was also instructed to interrogate the first accused namely Augustino Nyomezi. Again, he cautioned and informed that accused person all his statutory rights before recording his cautioned statement just as he did to the fourth accused. The accused understood them and consented to make his cautioned statement alone in Swahili language. The interrogation was conducted in the investigation room at Mpanda Police Station. PW3 started to record the said accused's cautioned statement on 18.04.2022 at 1500 hours and finished doing so at 1630 hours. That in his statement, the first accused confessed to have murdered the deceased 8 person. That the said accused also told PW3 that together with his co accused namely Alphonce John, they left their home Nsemulwa, Mpanda around 2300 hours on 17.04.2022 and reached at Mpanda Hotel at 0000 hours on 18.04.2022 for the aim of killing Marietha Thomas Mambwez, their grandmother. Also, PW3 said the first accused told him that he had a piece of sharp iron, then he entered in the deceased's house and hit the deceased on her head and she died instantly. He also told him that when he was inside the deceased house fulfilling that evil mission, Alphonce John, the second accused was outside keeping security. After recording the statement, PW3 gave it to the first accused to read and after doing so, the said accused acknowledged to him that what was recorded by PW3 was correct. Finally, both of them signed the said cautioned statement. Further, PW3 told the court that he informed the first and fourth accused persons at different times that they are accused of an offence of murder and, he did that before recording their cautioned statements. Having adduced the above evidence, PW3 urged the court to admit the said cautioned statement in evidence. As the prayer was not objected by any of the counsel for the defence side, the court granted it and admitted that cautioned statement as Exhibit P3. 9 On being cross examined, PW3 said he recorded the cautioned statement of the first accused person, but the said accused person was not taken to the Justice of Peace. He informed him all his rights before recording his statement. He was alone when recording the said accused cautioned statement. The accused confessed to have committed the offence. He did not inspect him before recording his statement. The accused did not have any injuries. Regarding the fourth accused person, PW3 said he is the one who recorded his cautioned statement, the accused was arrested on 18.04.2022 and he began to record his statement at 1300 hours and finished at 1430 hours. The said accused was not at the crime scene. When re-examined, PW3 said the interrogation was conducted at the investigation room, other police officers were at the CRO and the rest were outside the police station guarding the station. The prosecution Republic also paraded PW4, WP. 11466 D/C Lisa, who testified to have recorded the cautioned statement of the third accused after being instructed to do so by her superior boss. She recorded the cautioned statement of that accused at Mpanda Police Station on 18.04.2022 from 1430 to 1556 hours after introducing herself to the said accused, cautioning and informing her of her rights including the right to call her relative, friend or lawyer at the time of making her statement. 10 She also asked the said accused about the language she would like to use in making her statement and whether she was in need of making her statement before her. The accused opted to make her statement alone and in Swahili language. In her statement, the third accused told PW4 that she conspired with her two sons and a witchdoctor. That after finishing to record the said accused's cautioned statement, she read it over to her because the accused told her that she did not know how to read and write. Thereafter, the accused appended her right thumb print on the said document and PW4 signed the said cautioned statement as well. After that testimony, PW4 prayed to tender the said cautioned statement and the court admitted it as Exhibit P4 due to want of objection from the defence counsel. During cross examination, PW4 narrated that the third accused told her that she conspired with the first, second and fourth accused person. The interrogation between her and the third accused was conducted in the investigation room at Mpanda Police Station. She did not inspect her before recording her statement. After recording her statement, she returned her to the lock up. Also, PW4 responded that she was just assigned the duty of interrogating the third accused person whose cautioned statement she recorded on 18.04.2022. She recorded the said cautioned statement under section 58 (4) (a) of the CPA (Criminal Procedure Act). That she did not know when the third accused 11 was arraigned in court and does not know whether the said accused had been taken to the Justice of Peace. Also, PW4 said that the third accused stated to her that she is the one who made some arrangements on how to commit the offence. The last to take the flow, was PW5, G.8136 D/Cpl Masuka, a police officer working with Mpanda Police Station. In the course of his testimony, he stated that on 18.04.2022 around 1600 hours, he received a case file involving the offence of murder for further investigation, with case file number MPFU/IR/1239/2022. According to the said file, the deceased was Marietha Thomas Mambwe and by that time, five accused persons namely Augustino John Nyomezi, Alphonce John Nyomezi, Aurelia Damiano @Manyole, Mohamed Hussein @Mgaja and Erick Tintika had already been arrested and kept in the lock up. PW5 also testified that on the same date at around 1630 hours, he took the second accused from the lockup to the investigation room for interrogation. That in the said room there were only two persons; himself and the second accused. After introducing himself to the said accused, he informed him that he was accused of committing an offence of murder, then he cautioned him that he is not forced to say anything before him and if he says anything, the same will be recorded and later used as evidence against him in a court of law. He further informed the said accused that he has a right to call his 12 relative, friend or lawyer when making his statement and to choose the language to be used in recording his cautioned statement. On his part, the accused opted to make his statement alone in Swahili language. Thereafter, PW5 began to record the said accused's cautioned statement from 1630 to 1830 hours when he finished recording such statement. PW5 further told the court that in his statement, the second accused confessed to him that he conspired with his co accused persons to commit the offence of murder and that he went to the crime scene with his young brother namely Augustino Nyomezi who is the first accused person. The accused also told him that before going to the crime scene, he was given some medicine by the witchdoctor with the first accused person so that they could not be seen when committing an offence of murder. That the second accused further told PW5 that after coming from the crime scene, the witchdoctor gave them another medicine to take bath with, for purpose of preventing them. That the one who gave them such medicine was Mohamed Hussein Mgaja who is the fourth accused. That the accused also told PW5 that the ones whom he conspired with, were Aurelia Damiano, the third accused person who according to the second accused, is the one who found the fourth accused for giving them some medicine due to the problem of illness suffered by the first accused, and the long conflict between the 13 deceased person and her son John Nyomezi whose death was suspected to have been caused by the deceased person after bewitching him. PW5 went on telling the court that the second accused also confessed to him that the third accused is the one who instructed him and the first accused to kill one Marietha Thomas Mambwe, their grandmother. After finished recording such statement, he gave it to the second accused to read and after doing so, the said accused acknowledged that the statement was correct, then each of them ended up by appending his signature on relevant parts of that document. Moreover, PW5 testified that on 19.04.2022 about 1000 hours, the post mortem of the deceased body was conducted and the outcomes revealed that the death of the deceased person was not natural. That according to the investigation done by the Police officer; it was ascertained that the accused persons Augustino John Nyomezi, Alphonce John Nyomezi, Aurelia Damiano Manyole and Mohamed Hussein Mgaja, are the ones who committed the offence of murder. He added that based on the accused cautioned statements, witness statements and the exhibits, it was revealed that the said accused persons committed the offence of murder due to their long conflicts with the deceased and the fact that their cautioned statements depict that the said accused confessed to have conspired to commit such offence after having meeting at home. 14 Apart from that testimony, PW5 identified the second accused person as well as the cautioned statement he recorded from him, and requested the court to admit the cautioned statement of the said accused as an exhibit. His prayer was not contested and therefore, the court admitted the said cautioned statement as exhibit P5. In his response to the cross-examination questions, PW5 stated that the second accused mentioned the first, third and fourth accused as his co accused persons. In the investigation room, they were only two; himself and the second accused, the accused appended his right thumb print on the cautioned statement. He was not informed what other accused persons had stated during interrogation. He also said that he is an investigator of this case, but was not informed about the other accused confessions. That one Erick Tantika was also arrested, but he was discharged through Nolle Prosequi entered by the NPS. He recorded the cautioned statement of the second accused on 18.04.2022, but he does not remember when that accused was arraigned in court. That the second accused was not sent to the Justice of Peace because he did not want to be taken thereto. That all that he testified before the court he was informed by the second accused. After closure of the prosecution case, all accused persons were found with a case to answer in regards to the offence of murder with which they stand 15 charged and they entered their defence as DW1, DW2, DW3 and DW4 respectively. In brief, all of them denied to have murdered the deceased person and retracted the cautioned statements tendered by PW3, PW4 and PW5. For instance, DW1, Augustino John Nyomezi told the court that on 18.04.2022 he was arrested by the police offence at his parents' home Nsemulwa while he was preparing to go and attend the funeral ceremony of the deceased person, his grandmother. That after introducing themselves as police officers, the said police informed him that he was accused of committing the offence of murder and so, they had gone there to take him to the Police Station. After arrival, one of the police officers gave him a piece of paper and asked him to append his signature on it. He appended his signature on that paper without knowing what was recorded in it. Regarding the accusations against him, the first accused said sincerely, he does not know about the offence he was charged with and he did not murder the deceased person. Nor did he have any conflict with the deceased person whom he was living with in good terms as a grandson and grandmother. DW1 concluded his defence by stating that the evidence adduced by the prosecution witnesses against him, is not true as he did not have any conflict with his grandmother. Hence, he prayed to this court to set him free stressing that he did not commit the offence of murder. 16 On being cross examined, DW1 said he did not hear about the conflict between his mother and the deceased person. He was arrested by the police at his parents' home, Nsemulwa. He does not know the police officers who apprehended him. He was given a document and ordered to sign it. That he was remanded at the Police Station for three days before he could be given a document to sign. The police who gave him a document to sign testified before the court, but he did not have any conflict with him. That the said police officer was not cross examined about the document. Also, DW1 said he does not know if he gave the police his personal particulars. That he and his co accused did not have any conflict with PW1. On his part, DW2, Alphonce John Nyomezi testified that he was arrested on 18.04.2022 in the morning while at his home place, Mpanda hotel. Before that he was informed about the death of Marietha Thomas Mambwe, his grandmother by his neighbours. The information shocked him. After getting such information, he informed his mother who is the third accused person, and both of them agreed to go to the funeral ceremony, then at 1400 hours the police officers arrived there with his aunts, arrested and conveyed them to Mpanda Police Station telling them that they were going to interrogate them, but would let them go back to the funeral ceremony. However, DW2 said after arriving at the Police Station they were not interrogated, instead they were remanded in police lock ups. DW2 went on 17 narrating that in their family they did not have any conflict. They stayed at the Police and he did not make any statement before the police officer. Hence, he does not know the tendered cautioned statement because that statement was made by him. However, DW2 said he signed the said document, but he does not know anything concerning it. Regarding the offence charged, DW2 said he is not involved in the allegations of murder of his grandmother one Marietha Thomas Mambwe. During cross examination, DW2 said his father died on 2013 and his grandmother on 2022. He did not have any conflict with his grandmother. He was formerly residing at Mpanda hotel, but after his father's demise, his mother who is the third accused, purchased a land and built a house at Nsemulwa where they migrated and began to live. Also, DW2 responded that the first accused is his young brother who used to live at Nsemulwa, Mpanda and that is where he was arrested. Janeth Nyomezi is his aunt, she resides at Mpanda hotel. He used to visit her many times. He does not remember what his aunt testified in court and he does not know who mentioned him and his co accused at the Police Station. Besides, DW3 Aurelia Damiano Manyole fended for herself to the effect that she was arrested by the police officers on 10.04.2022 and informed that she is accused of killing the deceased person namely Marietha Thomas Mambwe Mambwe, her mother-in-law. However, the third accused person told 18 the court that she did not kill her mother-in-law because she was living well with her without any conflict and added that sometimes she used to buy some clothes for her. She also told the court that she did not participate in killing the deceased person; even her sons were in good terms with the deceased person. Her husband died on 01.04.2013 due to chronic malaria and they sent him to the hospital for some treatment. Having said so, DW3 prayed to this court to set her free as she did not commit the offence of murder with which she stands charged. During cross examination, she said she resides at Nsemulwa with her tenants, two sons and one granddaughter. The deceased was her mother-in-law who was residing at Mpanda hotel and she had good relationship with her. The deceased was sick, but had gotten some treatment and recovered. The deceased was killed and her death was not natural. Finally, came DW4, Mohamed Hussein @Mgaja who testified that he was arrested on 18.04.2022 with and conveyed to Police Station where he was remanded for two weeks, then lateron he was taken from the lock up and told to sign a document which he did not know, then he was returned to the lock up. Also, DW4 told the court that he did not participate in causing the deceased's death. He also said that he did not know the deceased person and he did not want know her because that was not his concern. He is an 19 entrepreneur and not a witchdoctor and, there is no proof that he is a witchdoctor. Also, DW4 said he knows the 3rd accused person because she is his land lady. When cross examined, DW4 said he was there when the prosecution Republic listed the intended witnesses and listed documents, but one pot with traditional medicine, two pieces of clothes, one calabash with traditional medicines and two pieces of clothes with white and red colour, were not produced in court as exhibits. Also, DW4 said that he was residing at Nsemulwa kwa Mkumbo where he was doing a small business of selling soaps from Kigoma. The police did not tell him the reason of arresting him; he became aware of the offence of murder he was charged with after being arraigned before the court. He did not know why the police did not inform him the reason of arresting him. They brought some documents and told him to sign. He was at the police when he signed the document. He further narrated that he did not have any quarrel with the police and also, the fourth accused said he had a good relationship with the third accused. When both parties had closed their cases, the learned counsel for the defence side prayed to file their joint final written submission. Such prayer was not objected by the counsel from the prosecution Republic and because of that, 20 the court granted the prayer and ordered that the respective written submissions by counsel from both sides be filed on 07.10.2024. However, for the reasons known to themselves, the counsel for the prosecution Republic neither filed their final written submission, be it through online or manually, as opposed to the learned counsel for the first, second, third and fourth accused persons who apart from filing theirs online as per the court order, also filed it manually with the court. Hence, I will only consider their final submission and pick some crucial points for consideration in my determination of the matter at hand. In their final submissions, the learned defence counsel presented two major points. One, that the cardinal principle of our criminal law requires the prosecution side to prove their case against the accused person beyond any reasonable doubt and, such evidence must irresistibly point to the accused person and not any other, as the one who committed the offence. That the accused person cannot be convicted on the weakness of his defence, but on the strength of the prosecution evidence. To bolster their arguments, they referred the court to a number of cases including Daimu Rashid @Double D vs Republic, Criminal Appeal No. 05 of 2018, CAT (unreported) Republic vs Kerstin Cameron [2003] TLR 84 and Idd Hamis vs Republic (Criminal Appeal No. 119 of 2022) [2024] TZCA 67 (20 February 2024) in which the Court held, inter alia, that: 21 “...It is also a settled position that, in deciding guilty of the accused, courts are guided, not by quantity, but quality of the evidence. This means, therefore, that weakness of the defence, however glaring it may be, cannot be the basis for conviction. Rather, it is the weight of the prosecution case which should hold the sway...” Two, the learned trained minds while basing on the above authorities, submitted that the prosecution in the present case failed miserably to prove their case against all the accused persons on the standard required by the law due a number of reasons. For example, it was their submission that the prosecution case based on hearsay evidence which has no legal value as it was stated in the case of Ndaisenga Vicent vs Republic, Criminal Appeal No. 523 of 2021 CAT sitting at Kigoma (unreported). They referred to the evidence of PW1 whom they said was not at the crime scene, but only claimed that there was a dispute between the deceased and the first, second and third accused person and she did not see those accused persons participating in killing the deceased person and that PW1 was not even part of that dispute. Also, the accused defence counsel submitted that apart from the evidence of PW2 who examined the deceased body, the remaining prosecution witnesses did not testify to have witnessed the commission of the crime which makes their evidence to be hearsay with no probative value. 22 Their second reason was that the prosecution case heavily relied on the cautioned statements of the first, second, third and fourth accused persons which despite being admitted by his court without any objection, were retracted by the accused persons during defence hearing and therefore, the same ought to be corroborated, as per the cases of Pius Robert @Mnene vs Republic (Criminal Appeal No. 157 of 2022) [2024] TZCA 805 (22 August 2024) and Hemed Abdallah vs Republic [1995] TLR 172 (CAT) in which it was held that: “Generally, it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particulars”. Still on the cautioned statements, the learned counsel submitted that since looking at the alleged four admitted cautioned statements, it appears that the accused implicated each other, it was imperative for those statements to be corroborated as per section 33 (2) of the Evidence Act, Cap 6 R.E. 2022 (the Evidence Act) and as it was emphasized in the cases of Majid Hussein Mboryo & Others vs Republic, (Criminal Appeal No. 141 of 2015) [2015] TZCA 158 (11 June 2015) and Bushiri Amiri vs Republic [1992] T.L.R 65. The third reason why the learned defence counsel attacked the prosecution evidence for being short of proving the charges against their clients, was that the prosecution failed to call important witnesses including the police officer who arrested the fourth accused person, and present exhibits alleged to have 23 been used in rituals which purported to belong to the fourth accused person, in order to link the prosecution story with the causation of deceased death. As if that was not enough, the learned defence counsel also challenged the prosecution side for not calling Maria Titus, a person who is alleged to have told PW1 about occurrence of the deceased death. They also submitted that during defence hearing, their clients denied all allegations of being involving in committing the offence of murder and having conflicts with the deceased person. They also submitted that the fourth accused denied to have been a witchdoctor which is visible before the court, as there is no evidence to prove that the said accused is a witchdoctor. To bolster their arguments, the learned counsel cited various cases including the case of Ahamad Salum Hassan @Chinga vs Republic (Criminal Appeal No. 386 of 2021) [2023] TZCA 44 (22 February 2023) where it was held that: “The position of law is that, failure to call a witness who is in a better position to explain some missing links in the prosecution case justify an adverse inference against the prosecution.” Relying on the above arguments coupled with the cited authorities including the case of Goodluck Kyando vs Republic [2006] T.L.R 367 (CA), the learned defence counsel urged the court to believe all the defence witnesses. 24 Another reason submitted by the counsel for the accused persons herein was that the prosecution case and the tendered cautioned statements were full of contradiction and inconsistency which according to them, casts doubt on the prosecution case which should have been resolved in favour of the accused persons. It was their argument that for a person to be found guilty, the prosecution evidence need be consistent, as it was stated in the case of Rashidi Shabani vs Republic (Criminal Appeal No. 310 of 2015 [2016] TZCA 633 (29 July 2016). In unveiling the alleged contradictions, the learned counsel first submitted that the testimony of PW1 and PW2 is contradictory and inconsistent with the contents of the first accused cautioned statement because in their evidence, the said witnesses said they found the deceased with three wounds on his head, neck and eye, but the alleged cautioned statement shows that the said accused confessed that after finding his grandmother sleeping, he only hit her strongly on the right side of her neck by using a sharp object until she died. Their last reason was that the evidence produced by the prosecution side was not strong enough to prove the offence of murder against the accused persons beyond any reasonable doubt. Among the reasons which prompted them to come up with such view, is that there was no strong circumstantial evidence upon which a conviction could safely lie against the accused persons. 25 Secondly, they argued that the chain of events was broken because it could be unlikely for the accused persons to fulfill the evil killing mission after a lapse of nine years from when the third accused's husband died. Their view was that a guilt mind person could not wait for such longer period in order to kill the deceased. Thirdly, the learned counsel submitted that the prosecution failed to prove that the fourth accused person is a witchdoctor and also, they failed to tender as exhibits, the instruments alleged to have been used by such accused person in rituals despite assuring the court during committal proceedings, that they will tender the same as real evidence in order to prove the above explained chain of events. From the above both parties' evidence, there is neither doubt nor dispute that the deceased person, Marietha Thomas Mambwe died a violent death on 18.04.2022 while sleeping at her home place, Mpanda Hotel. The evidence of PW2 who conducted postmortem examination of her body, reveals clearly that the deceased sustained serious injuries on her occipital lobe, face near her eyes with blood spreading on her head and neck. Also, she had an injury on her neck which was bleeding and her clothes were soaked with blood. Also, the post mortem examination report which is Exhibit P1, reveals that the cause of her death was due to being cut with a sharp 26 object which caused injuries on her body parts as described above, and which led to heart failure due to severe bleeding. This evidence was not challenged during cross examination and, none of the accused persons denied that fact during defence hearing which tells that the deceased died an unnatural death. Thus, if any evidence were needed to prove whether the deceased died and her death was unnatural, then it is my settled view that the foregoing reasons suffice to answer that crucial question in the affirmative. The question that comes to the focus is who murdered the deceased person? Section 196 of the Penal Code provides that: “196. Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.” Reading the above provision between lines, one may find that in order for the offence of murder to be proved, there must be some proof that the accused person, with malice aforethought, caused the death of another person by an unlawful act or omission. In order words, the offence of murder is said to be proved where there is cogent evidence which proves that a person is actually dead, his/her death is unnatural and that the accused person, with malice aforethought caused death of that other person by his unlawful act or omission. Section 3 (2) of the Penal Code provides that: 27 “(2) A fact is said to be proved when— (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists” This means therefore, that in criminal cases like the one at hand, the standard of proving a certain fact is beyond any reasonable doubt. This position has also been emphasized in a number of cases. (See: Said Hemed vs Republic [1986] TLR 117. Again, it is a trite law that he who desires the court to enter judgment in his favour, is duty bound to prove existence of a certain fact which he asserts and the burden of proof lies on that person (See: section 110 (1) and (2) of the Evidence Act). More so, that position was emphasized in the case of Msafiri Hassan Masimba vs The Republic, Criminal Appeal No. 302 of 2015 CAT (unreported) whereby the Court of Appeal sitting at Iringa, emphasized that: “...the burden of proof is always on the prosecution to prove the case against the accused person beyond reasonable doubt.” The prosecution in the present case has alleged that the death of the deceased person happened on 18.04.2022, and the same was unnatural. They have also alleged that the first, second, third and fourth accused persons are the ones who caused the deceased death with malice aforethought accusing 28 her for bewitching the first, second and the third accused person's late husband one John Nyomezi. I have revisited the prosecution evidence which comprise of the oral testimonies of PW1, PW2, PW3, PW4 and PW5 as well as the documentary evidence particularly the alleged cautioned statements of the first, second, third and fourth accused persons, and observed that none of the said prosecution witnesses witnessed the said accused persons killing the deceased persons, leave alone being present at the scene of crime. This means that the prosecution case is entirely dependent on pieces of circumstantial evidence and the cautioned statements of the four accused persons which if found to be lacking weight, there cannot be any other evidence to connect those accused persons with the commission of an offence of murder with which they stand charged. Looking at the evidence of PW3, PW4 and PW5, it appears that all of them have alleged that the accused persons herein confessed to have murdered the deceased persons. PW3 testified to have recorded the cautioned statement of the first and fourth accused persons while PW4 testified to have recorded the cautioned statement of the third accused and, PW5 testified to have recorded the cautioned statement of the second accused. They also prayed to tender the said cautioned statements and the same were admitted without any objection 29 as exhibits P3 (for the first accused), P2 (for the fourth accused), P4 (for the third accused) and P5 (for the second accused). However, it is glaring from the court records that during defence hearing, all accused persons denied to have made the any statement before the police officers; they instead told the court that they were told to sign the said documents without knowing what was written therein. In my view, that is why in their final submissions, the learned defence counsel argued that despite being admitted without objection, the said cautioned statements were retracted by the accused persons, which I agree. That being the case, I find it pertinent to be guided by the law governing retracted and repudiated confessions before deciding whether the tendered cautioned statements are sufficient to be relied upon in grounding convictions against accused persons herein, before I deal with the other pieces of evidence. It follows therefore, that apart from a number of authorities regarding the retracted and repudiated confessions referred to me by the learned defence counsel in their final submissions and which I have considered, there are other cases which provide for the same position and, some of them have even gone an extra mile by providing some guidance to the courts of law. For example, in the case of Tuwamoi vs Uganda [1967] E. A at page 91 it was held that; 30 “As a matter of practice or prudence, the trial court should direct itself that it is dangerous to act upon a statement which has been retracted in the absence of colaboration in the same material particular, but that the court might do so if it is fully satisfied in the circumstance of the case that the confession must be true”. (See also: Bombo Tomola vs. Republic [1980] TLR 254, Paschal Kitigwa Vs Republic, [1994] T.L.R.65 CAT, and Nuru s/o Venevas and others vs. Republic, Criminal Appeal No.431 of 2021)”. [Emphasis is mine] In the instant case, my observation after going through the contents of exhibits P2, P3, P4 and P5, the alleged cautioned statements of the fourth, first, third and second accused persons respectively, is that though they appear to contain the confessional statements of those accused persons in relation to the commission of an offence of murder, the same were retracted during trial. The accused claimed that upon being conveyed to the Police Station, they were given some papers and forced to sign them. These complaints were not much contradicted by the prosecution attorneys. Under those circumstances, there is a need to look for some corroborative evidence of independent witnesses. It is however, unfortunate that having examined the evidence of the five prosecution witnesses, I have found none. 31 This means the alleged confessional statements of the accused persons remain to be uncorroborated just as the learned defence counsel have argued. Nevertheless, the position of law, as can be gleaned from the above cited authorities, is that the court can still found conviction upon the accused person based on uncorroborated retracted or repudiated confession, but the threshold is two-fold; first, the trial court has to warn itself, as I hereby do, that it is dangerous to act upon a statement which has been retracted in the absence of corroboration on the same material particular and secondly, the court can only do so if it is fully satisfied in the circumstance of the case, that the confession must be true. (See: Tuwamoi vs Uganda (supra), Nuru s/o Venevas and Others (supra) and Pius Robert @Mnene vs Republic (Criminal Appeal No. 157 of 2022) [2024] TZCA 805 (22 August 2024). Now that, since I have found that there is want of corroboration in all the tendered cautioned statements relating to this case and warned myself on the danger of acting on those retracted statements, I find myself in a good position to determine whether what is contained in each of those statements is true. Perhaps, the starting point at this juncture, should be how will the court know whether what is contained in a confessional statement is true? The answer to such crucial question can be obtained from the case laws. For example, the Court of Appeal in the case of Michael Mgowole & Another 32 vs Republic (Criminal Appeal No. 205 Of 2017) [2019] TZCA 341 (30 September 2019) resolved that question in the following manner: "There are several ways in which a court can determine whether or not what is contained in a statement is true. First, if the confession leads to the discovery of some other incriminating evidence...Second, if the confession contains a detailed, elaborate relevant and thorough account of the crime in question, that no other person would have known such details but the maker... Third, since it is part of the prosecution case, it must be coherent and consistent with the testimony of other prosecution witnesses, and evidence generally...especially with regard to the central story (and not in every detail) and the chronology of events. And, lastly, the facts narrated in the confession; must be plausible. [Emphasis is mine] But again, I am persuaded by the recent case of Bokhobokho & Another vs Republic (MSCA Criminal Appeal 10 of 2000 [2001] MWSC 5 (17 October 2001) in which the Supreme Court of Appeal of Malawi had the following to say: - “In such a case before a court is satisfied beyond reasonable doubt that a confession is true, it is necessary in my opinion to see whether there are pointers in the evidence which tend to confirm the admission ofguilt 33 contained in the confession before accepting such confession as true. The pointers which I would look for are those referred to in R. v. Sykes. In that case the Court of Criminal Appeal approved a direction to a jury which was in the following terms: „...[A]nd the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we test them true? Was the prisoner a man who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?' [Emphasis is mine] Starting with Exhibit P2 which is the cautioned statement of the first accused, the same depicts that the said accused was recorded to have uttered the following words: - “...mnamo tarehe 17/04/2022 majira ya saa 1900 hours kaka yangu ALPHONCE S/O JOHN NYOMEZI alikuja nyumbani kwani yeye anaishi MPANDAHOTEL kwenye nyumba ya marehemu baba yetu na kwamba alipokuja tulikaa pamoja na mama yangu AULELIA D/O DAMIAN MANYOLE na kaka yangu ALPHONCE S/O JOHN NYOMEZI ndipo mama alianza kumueleza kaka yangu kuhusu matatizo ya bibi yetu kutuloga na 34 katika maongezi hayo mama yetu alinishauri mimi na kaka yangu ALPHONCE S/O JOHN NYOMEZI kuwa tumuue bibi yetu MARIETHA D/O (JOHN) THOMAS kabla hajaleta madhara makubwa. Mimi nilikubali na tulikubaliana kwenda kumuua bibi usiku wa tarehe 17.04.2022 kuamkia tarehe 18.04.2022. Mama alimweleza mganga MOHAMEDI S/O HUSEIN wakati wa kwenda atatupatia dawa ya kuoga ili tukishakamilisha atatupa tena dawa ya kuoga ili tusikamatwe na kitu chochote kibaya,majira ya saa 23:00 HRS ya tarehe 17.04.2022 kaka yangu ALPHONCE S/O JOHN alifika nyumbani kwaajili ya kwenda kumuua bibi ndipo tulipopewa dawa na mganga ya kuoga, tuliondoka kwenda MPANDAHOTEL alipokuwa anaishi bibi yetu na muda huo mimi nilikuwa na kipande cha (mti) chuma ambacho upande mmoja ulikuwa umechongoka kama mshale na tulijua hatuwezi kusumbuka maana tulikuwa tunajua kuwa bibi anaishi peke yake na ni mzee sana...tulipofika majira ya saa 0000 HRS ya tarehe 18.04.2022 na kwamba tulikuta bibi akiwa amefunga mlango, ndipo tulifungua mlango kwa nguvu na kuweza kufunguka. Baada ya kufunguka bibi yetu MARIETHA D/O THOMAS alianza kuuliza (ndipo) nani ndipo niliingia ndani huku ALPHONCE S/O JOHN NYOMEZI alibaki nje kwaajili ya ulinzi. Nilipoingia ndani nikiwa na tochi nilimkuta bibi yangu MARIETHA D/O THOMAS akiwa amelala kifudi fudi nilianza kumchoma shingoni kwa nguvu upande wa kulia kwa kutumia kipande 35 cha chuma nilichotokanacho nyumbani ambacho kilikuwa kama mshale. Bibi yangu baada ya kumchoma alivuja damu nyingi sana na nilihakikisha amekufa ndipo nilitoka nje na kumwambia kaka ALPHONCE S/O JOHN NYOMEZI kuwa tayari kazi tuondoke. Tuliondoka pale kwa kukimbia nikiwa na kipande cha chuma na nilikitupa huko Mpandahotel barabarani. Baada ya kufika nyumbani tulimkuta mama yangu pamoja na mganga MOHAMEDI S/O HUSEIN wakitusubiri, tulipofika tu mganga alitupatia dawa ya kuoga na tulioga wote pamoja na kaka yangu ALPHONCE S/O JOHN NYOMEZI. Baadaye kaka aliondoka kwenda MPANDAHOTEL anapoishi na mimi niliingia ndani kulala...tarehe 18/04/2022 majira ya asubuhi taarifa za bibi MARIETHA D/O THOMAS kuuawa zilianza kusambaa huku mimi nikijua sababu ya kifo chake na sikuweza kwenda msibani kutokana na matatizo ya kutotoka mchana ndani na majira ya saa 13:00 HRS nikiwa nyumbani nilikamatwa na askari polisi MPANDA na kuletwa hapa kituo cha Polisi MPANDA...nakiri kuwa ni kweli mimi ndiye nilihusika kumuua Bibi yangu MRIETH THOMS kwa kumchoma na kipande cha chuma shingoni...” Regarding the cautioned statement of the second accused (Exhibit P5), the following is what the said accused stated before PW5: - 36 “...Mama alitoa wazo kwamba hakuna suluhu yoyote ya kufanya kuepuka kifo changu na AUGUSTINO S/O JOHN kama bibi hatauawa. Hivyo alitupa wazo kuwa kama wanae tujinusuru kwaa kwenda kumuua bibi. Binafsi nilikubali na Mdogo wangu AUGUSTINO S/O JOHN alikubali kwani Maisha aliyoyaishi baba yetu mpaka mauti yaliyomfika maneno mengi yalikuwa yakisemwa na watu kuwa alilogwa na mama yake yaani bibi yetu. Mama akatuambia pia kuwa kabla ya kwenda kumuua bibi tutaogeshwa dawa na Mganga wa hapo nyumbani ili tusije kupatwa na mashetani/uchawi wa bibi. AUGUSTINO S/O JOHN alikuwa mtu wa haraka sana kutaka kutekeleza mauaji hayo maana alipoambiwa kuwa mateso yote yale anayapata sababu bibi amemloga, akawa anatamani sana hata twende muda huo...Majira ya saa 23:00 hrs nikiwa pale nyumbani kwa mama ya tarehe 17.04.2022, mimi na AUGUSTINO S/O JOHN tukazungushwa nyuma ya nyumba na yule Mganga wa hapo nyumbani ninamjua kwa jina la MOHAMED S/O ? akaja na maji akatupulizia mwilini na mikononi, kisha akaturuhusu tuondoke, AUGUSTINO S/O JOHN alikuwa na chuma mkononi ambalo mganga alilipaka dawa zake pia. Tuliondoka kwa mguu ili tufike muda umeenda kwani bibi anapoishi anakaa peke yake. Tulifika majira ya kama saa 00:20 hrs ya tarehe 18.04.2022, pale nyumbani kwa bibi palikuwa kimya, AUGUSTINO S/O JOHN alisogea mlangoni akiwa na tochi 37 akasukuma ule mlango kwa nguvu kwani huwa unafungwa na msumari kwa ndani. Ulifunguka, bibi akiwa amelala, mimi nilisimama mlangoni kuangalia watu wasije kutukuta, muda mfupi nilisikia sauti kama bibi anahema hivi, mara sauti ikakata na mara AUGUSTINO S/O JOHN akatoka akasema tayari amemaliza. Tuliondoka kuelekea nyumbani, na kile chuma AUGUSTINO S/O JOHN akakitupa njiani. Tulipofika nyumbani Nsemulwa tukamjulisha mama akamwamsha mganga MOHAMED S/O? yule mganga alitupeleka tena nyuma ya nyumba akatuogesha tena dawa. Asubuhi ya tarehe 18.04.2022 habari za bibi kuuawa zilisambaa.Majira ya saa 16:00 hrs hivi siku hiyo hiyo nikiwa hapo msibani nilishtukizwa na kukamatwa na askari polisi na kuletwa hapa Kituo cha polisi Mpanda...kuhusiana na tuhuma hizi ninakubali kuwa ni kweli nimeshiriki mauaji hayo ila ni kwasababu ya kuokoa maisha yangu na ndugu zangu, ukizingatia tulimpoteza baba yetu mzazi kwa tuhuma hizo hizo za bibi kumroga baba...” Also, through her cautioned statement (Exhibit P4) before PW4, the third accused had the following to say: - “...Niliolewa mwaka 1982 na JOHN S/O NYOMEZI na tulibahatika kupata watoto tisa 9. Mume wangu alikuwa mwalimu wa shule ya msingi Kakese na alifariki mwaka 2013 baada ya kuugua ugonjwa wa akili yaani 38 kichaa.Mume wangu kabla hajafa walikuwa wana migogoro na ndugu zake hasa mama yake mzazi kwani walikuwa hawanitaki mimi kuishi ndugu zao mpaka ikapelekea mume wangu kutaka kuwapiga na jembe na mpaka amefariki hawakuwa na mahusiano mazuri. Na tangu enzi hizo nilikuwa siendi kwa mama mkwe wangu. Mwaka 2018 mwanangu Augustino alianza kuumwa kama uchizi...Niliendelea kuhangaika sehemu mbalimbali na mnamo tarehe za mwezi 04/2022 nilipata mganga aitwaye MOHAMED S/O? Alikuja nyumbani kwanug na kumpatia chumba cha kuishi ili afanye matibabu katika familia yangu. Mganga huyo pia alipiga ramli na kuniambia kwamba mama mkwe wangu MARIETHA D/O THOMAS ndiye anayeloga familia yangu.Hivyo baada ya kupewa taarifa na mganga huyo MOHAMED S/O ? nilikaa na familia yangu na kukubaliana kuwa suluhisho la tatizo ni kumuua mama mkwe wangu MARIETHA D/O THOMAS...Hivyo tulikubaliana atafanya kazi hiyo ni AUGUSTINO S/O JOHN na ALPHONCE S/O JOHN.Tarehe 17/04/2022 majira ya saa 23:00 hrs mganga MOHAMED S/O? aliwatengenezea dawa na mwisho waliondoka kuelekea Mpanda hotel nyumbani kwa bibi yao. Ilipofika saa 02:30 hrs walirudi nyumbani wote wawili na kunieleza kwamba kazi imeisha ndipo nilimuamsha mganga na aliwatengenezea dawa tena na kijana wangu ALPHONCE S/O JOHN alianza kurudi Mpanda hotel anapoishi kwake. Mnamo tarehe 18/04/2022 saa 06:00 39 hrs asubuhi nilipigiwa simu na PETER S/O? ambaye ni mpangaji wangu wa Mpanda hotel na kunieleza kwamba mama mkwe wangu amefariki dunia. Baada ya kupewa taarifa hiyo ya msiba nilijiandaa na kwenda msibani Mpanda hotel kwa mama mkwe MARIETHA D/O THOMAS ambaye kwasasa ni marehemu. Hata hivyo wakati nikiwa msibani majira ya saa 13:00 hrs nilkamatwa mimi na mtoto wangu Alphonce s/o John na askari polisi na kupelekwa Kituo cha Polisi Mpanda na nilipofika niliwakuta AGUSTINO S/O JOHN mtoto wangu na MOHAMED ambaye ni mganga wa kienyeji na kijana mmoja ambaye simfahamu walikuwa wameshakamatwa. Hayo ndiyo maelezo yangu.” Finally, we have the cautioned statement of the fourth accused person, Exhibit P2 in it is alleged that the said accused confessed in the following manner: - “Mnamo tarehe 03.04.2022 nilihama nyumbani kwa shangazi na kwenda kwa mama AGUSTINO S/O? na kunieleza shida yake kwamba mtoto wake waa kiume aitwaye AGUSTINO ana matatizo anasumbuliwa na mambo ya kichawi hivyo akaniambia niweze kuangalia shida inatoka wapi? Kweli niliangalia kwa kupiga ramli na kugundua kwamba matatizo hayo yanasababishwa na bibi yake kwa kumloga na isitoshe huyo bibi alishawahi kumloga mume wa mama AGUSTINO S/O? na inaonekana bibi yenu anataka kuwaloga kizazi chenu chote kiteketee...kuna siku 40 tarehe sikumbuki mwezi 04/2022 huko nyumbani kwake mama AGUSTINO S/O? alikuja kwenye chumba change cha kufanyia shughuli zangu za uganga na kunieleza kuwa ana mpango wa kutaka kumuua mama mkwe wake kutokana na shida anazopata za kulogwa familia yake, hivyo aliniambia kama ninaweza kumuua kwa njia za kishirikina huyo bibi. Mimi nilimueleza sintoweza kazi hiyo. Alisema pia atatafuta watu wa kwenda kumuua bibi huyo na mimi niwapatie dawa kabla ya kwenda kufanya tukio hili la mauaji...Nakumbuka mnamo tarehe 17.04.2022 majira ya saa 10:00 hrs nikiwa chumbani kwangu...alikuja mama AGUSTINO S/O? akiwa na vijana wawili ambaye namtambua kwa jina la AGUSTINO S/O? na mwingine jina lake silijui lakini pia ni mtoto wa mama AGUSTINO S/O? mkubwa wa AGUSTINO S/O? Vijana hao wawili niliwapatia dawa ya kuoga ili wasikamatwe wakishamaliza kutenda tukio hili la mauaji. Vijana hao waliondoka kuelekea huko maeneo ya MPANDAHOTEL muda wa saa 00:00 hrs usiku na walifanikiwa kurudi muda was aa 02:00 hrs usiku, walipofika tu niliwaosha tena dawa ya kuoga.Ilipofika tarehe 18/04/2022 SAA 09:00 hrs watoto wa mama AGUSTINO S/O? walifika chumbani kwangu na kunieleza kwamba wamemuua bibi yao kw kutumia mkuki mdogo kwa kumchoma kichwani na shingoni mpaka alipofariki ndipo waliondoka kurudi NSEMULWA KWA MKUMBO.Mnamo tarehe 18.04.2022 majira ya 41 saa 12:00 Hrs nikiwa kwenye chumba cha uganga huko NSEMULWA kwa Mkumbo nilikamatwa na askari polisi wa MPANDA na kufikishwa Kituo cha Polisi Mpanda na kuwekwa mahabusu kwa tuhuma za mauaji ndio maelezo yangu.” Having cited the above authorities, and quoted the alleged confessional statements from each of the four accused persons, it is now my turn to examine each of them in order to know whether they contain some truth regarding the serious allegations of murder each of those accused persons are facing. Looking at the cautioned statements of the first and second accused persons, Exhibits P3 and P5 respectively, my observation is that they make sense and provide several points. First, they are so detailed in that they explain how the said accused persons conspired with the third accused to kill their grandmother one Marietha d/o Thomas Mambwe, they also explain the date and time on which the first and second accused went to the crime scene for the purpose of fulfilling their evil mission of killing the deceased person. Not only that, but also, the said statements explain how the first accused managed to open the deceased's door and how he killed the deceased person. Also, the statements describe the type of weapon, a sharp object used by the 42 first accused to assault the deceased person to death and the role played by each of them in the commission of the charged offence. As if that is not enough, the said statements explain where the first and second accused had thrown the used weapon and, further they show that the first and third accused person had the opportunity of committing the murder due to absence of other people living with the deceased at the crime scene, and the time they used to go and fulfill that killing mission, as both of them have stated that they committed that offence at around 2300 hours and that the second accused was outside guarding, whilst the first was inside the killing the deceased person. On the other hand, the cautioned statement of the third accused, Exhibit P4 is also so detailed and consistent with the statement of her co accused in that it describes her as the instigator of the plan which could be used to fulfill the killing mission of the deceased person. It also explains how the said deceased conspired with the first and second accused to kill the deceased person and the way she struggled to find a witchdoctor who could make a divination to ascertain the one who bewitched her son, and the reason which prompted her to team up with her co accused namely the first and second accused in order to kill the deceased person. 43 As for the cautioned statement of the fourth accused, Exhibit P2 my observation is that the same does not show any sign of truth especially when compared with the statements of his co accused persons and the evidence on record. This is because first, the statement does not mention the name of the deceased person which raises a doubt whether the so called „bibi../mama mkwe...' referred in that statement, is actually Marietha Thomas Mambwe, the deceased. Secondly, in that statement the confessor does not seem to know the full names of the first, second and third accused. If it is true he was part of the commission of that offence, the fourth accused could have been familiar with all names of his co accused having in mind that the statement shows he was residing in the same house of the third accused. Thirdly, the said statement does not describe the instruments used by the fourth accused to make divination in order to ascertain the one who used to bewitch the third accused's late husband and her son who is the first accused and fourthly, the said statement does not mention the said accused as the one who conspired with the first, second and third accused or even convening a meeting with them and plan on how to kill the deceased person. Back to the statements of the first and second accused, they clearly reveal that it was only them and not the fourth accused, who convened a meeting of planning to kill the deceased person. This is exhibited by the cautioned 44 statement of the first accused, Exhibit P3 in which the said accused was recorded to have said that: “Basi mnamo tarehe 17/04/2022 majira ya saa 19:00 HRS kaka yangu ALPHONCE S/O JOHN NYOMEZI alikuja kutembea nyumbani...na kwamba alipokuja tulikaa pamoja na mama yetu kwenye chumba kimoja yaani mimi,mama yangu , ALPHONCE S/O JOHN NYOMEZI ndipo mama alianza kumueleza kaka yangu kuhusu matatizo ya bibi yetu kutuloga na katika maongezi hayo mama yetu alinishauri mimi na kaka yangu kuwa tumuue bibi yetu MARIETHA D/O THOMAS kabla hajaleta madhara makubwa, mimi nilikubali na tulikubaliana kwenda kumuua bibi usiku wa tarehe 17.04.2022 kuamkia tarehe 18.04.2022.” Section 23 of the Penal Code provides that: “23. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each ofthem is deemed to have committed the offence.” And, in interpreting the above provision of the law, the Court of Appeal for East Africa in Mungai v. Republic, [1965] E.A. 782 held that: 45 “...in order to make the section applicable it must be shown that the accused had shared with the other perpetrators in the crime a common intention to pursue a specific unlawful purpose which led to the commission of the offence charged.”[Emphasis is mine] In the case at hand, it appears that only the cautioned statement of the first, second and third accused show that each of them shared with the other perpetrators a common intention to pursue a specific unlawful purpose to wit: killing the deceased person which led to the commission of the offence charged, as it can been clearly seen at the confessional statements of the first and third accused persons. Nowhere it is stated in the statement of the fourth accused and in the statements of those other accused persons that they shared a common intention with the fourth accused. The statements of the first, second and third accused are in my view, so detailed that no one else would have ever known, but their makers who are those accused persons. In the circumstances, I am convinced to believe what is contained in the statements of the first, second and third accused persons to be nothing, but the true confessional statements regarding their participation in the commission of the offence charged, thus causing the deceased death. Conversely, I am not inclined to believe what is contained in the cautioned 46 statement of the fourth accused person for the reasons I have already provided above and the others which I am going to assign shortly. Regarding the other pieces of evidence, the prosecution brought PW1, PW3, PW4 and PW5 whose evidence appears to have implicated the accused persons for the commission of the charged offence. However, having considered that evidence, I am in accord with the submission of the learned defence counsel that none of the said prosecution witnesses did witness the commission of the charged offence and cannot be in a position to tell without certainty who committed the said offence. However, their evidence when compared with what is contained in the cautioned statement of the first, second and third accused, helps to make one common feature, that the first, second and third accused persons committed the said offence due to misunderstandings between them and the deceased person. Regarding the arguments that since they were retracted, the cautioned statements of the first, second, third and fourth accused person ought not to have been relied upon in founding conviction against the accused person, it is my reservation that the circumstances of this case are exceptional, because having warned itself on the danger of relying on uncorroborated cautioned statement and examined the contents of those statements, the court has 47 satisfied itself that what is contained in the cautioned statements of the first, second and third accused persons, is true, save for that of the fourth accused. On the argument that the prosecution failed to call important witnesses and present important evidence, again I agree with the submissions of the learned defence counsel that it was incumbent upon the prosecution to bring key witnesses especially, if I may add, the police officer who is alleged to have apprehended and searched the fourth accused person, and to tender the alleged instruments of rituals to prove that the said accused is a witchdoctor. In my view, failure to bring that witness and the intended exhibits dents the prosecution case as far as the charge against the fourth accused is concerned, which contravenes the principle of law as stated in various cases including the case of Ahamad Salum Hassan @Chinga vs Republic (supra). On the other hand, I do not agree with the argument that failure to bring a person who told PW1 about the incidence of murder can make the court to draw an adverse inference against the prosecution evidence. In my view, that person was only an informer and her name was not listed during committal or preliminary hearing proceedings. Hence, it was not a big issue to have her as one of the prosecution witnesses because after been informed, PW1 reported the matter to the nearby street leader and 48 cooperated with the police officers in the investigation of this matter which led to the arresting of the accused persons, one after another. There was another argument by the learned defence counsel that the evidence adduced by PW1 and PW2 are inconsistent with the cautioned statement of the first accused in that while the said evidence shows that the deceased body was found with three wounds on her head, eye and neck, the said cautioned statement shows that the first accused assaulted the deceased on the neck only. In fact, it is obvious that according to the evidence of PW1 and PW2, the deceased body was found with three wounds. However, I do not find any merit in that argument because the cautioned statement of the first accused does not mention the number of injuries the deceased sustained after being assaulted; rather it shows how the said accused assaulted the deceased person. Also, considering the fact that the killing was done at night and that the first accused attacked and used a great force in order to ensure that the deceased loose her life, it is probable that he inflicted more than one injury and that is exhibited not only by the evidence of PW1 and PW2, but also by the Post mortem examination report, Exhibit P1. Besides, the counsel for the accused persons have argued that despite being circumstantial, the prosecution evidence was not strong enough to prove the 49 case against the accused persons on the standard required by the law. They have provided two reasons to backup such argument. It is their argument that the chain of events was broken because it could not be possible for the accused to wait for nine years following the death of the third accused's late husband, in order to kill the deceased person. Secondly, they have argued that the prosecution evidence has not proved that the fourth accused is a witch doctor. Starting with the first argument, I do not find it to be meritorious because looking at the cautioned statements of the first, second and third accused persons, it is apparent that during that time third accused and her family were still finding who bewitched her husband and the first accused. In other words, the accused did not stay idle. As for the second argument, it has already been found that the prosecution omitted to bring the intended real evidence to prove that the fourth accused is the witchdoctor. On this, I agree with the submission of the learned defence counsel that the prosecution evidence is wanting on that aspect. Hence, I give the benefit of that doubt to the fourth accused person. Thus, based on the foregoing reasons, I am satisfied without any reasonable doubt that the first, second and third accused persons are the ones responsible for causing death of the deceased person, save for the fourth 50 accused whom I have found no incriminating evidence to connect him with the commission of the offence of murder contrary to section 196 and 197 of the Penal Code. Hence, I find him not guilty of that offence, acquit him and order that he should be released from prison custody forthwith unless if he is held therein for some other lawful cause. The last question for my determination is whether the remaining accused persons had malice aforethought in causing death of the deceased person. Malice aforethought is all about the intention to kill or cause grievous harm to another person, as provided under section 200 of the Penal Code. In order to know if a person had a malice aforethought, regard need be had to a number of factors including, but not limited to the type and size of the weapon if any, that was used in the attack, the amount of force applied in the assault, the part or parts of the body the blows were directed at or inflicted on, and the conduct of the attacker before and after the killing. (See: Enock Kipela vs Republic, Criminal Appeal No 150 of 1994 (Unreported). Back home, the prosecution evidence clearly depicts that in killing the deceased person, the first accused whose act was supported by the first and third accused, used a lethal weapon to wit: a sharp object. This is exhibited not only by the cautioned statements of the first and second accused persons, but also the evidence of PW2 which is corroborated by the post mortem 51 examination report, Exhibit P1. Also, the cautioned statements of the first and second accused reveal that after killing the deceased, they threw away the sharp iron used to kill the deceased person. From such evidence, there is no doubt that the first accused used a great force in assaulting the deceased to death. Also, there is no doubt that by formulating a common intention to pursue a specific purpose (murder) which led to the commission of the offence charged, the first, second and third accused persons had malice aforethought of causing the deceased death and, it is immaterial that only the first accused did the physical act of assaulting the deceased to death. In the result, I am of the settled view that the prosecution in this case have managed to satisfy the court beyond any reasonable doubt that the first, second and third accused persons committed the offence of murder contrary to section 196 and 197 of the Penal Code and for that basis, I find all of them guilty of that offence and convict them, as charged. A.A. MRISHA JUDGE 01.11.2024 52 SENTENCE There is only one punishment for the offence of Murder once it is proved. I have considered all the aggravating and mitigating factors from both sides, but my hands are tied by the law to the extent that I have to pronounce the sentence, as provided under section 26 and 197 of the Penal Code. Hence, I sentence the accused AUGUSTINO JOHN @NYOMEZI, ALPHONCE JOHN @NYOMEZI and AURELIA DAMIANO @MANYOLE each of them to suffer death by hanging. It is so ordered. A.A. MRISHA JUDGE 01.11.2024 Right of Appeal is hereby explained. A.A. MRISHA JUDGE 01.11.2024 53