Criminal Session 109 of 2022 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) SITTING AT MPANDA CRIMINAL SESSION NO. 109 OF 2022 (Originated from the District Court of Tanganyika in PI. No. 20 of2022) REPUBLIC VERSUS EMMANUEL DILLA @SULUBA....................................................1st ACCUSED JITALE MWIGULU @NKARANGO .............................................. 2nd ACCUSED JUDGMENT 31s October & 14h November, 2024 MRISHA, J. The first and second accused persons in this case are alleged to have committed the offence of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2019 [Now R.E. 2022] henceforth the Penal Code. It is alleged that on the 28th day of June, 2022 at Bujombe Village within Tanganyika District in Katavi Region, they murdered one Mandalu s/o Ndulu Kwilasa, the deceased person. 1 Perhaps, the nagging questions to be asked at the outset, may be why and how the said accused persons committed such capital offence. Obviously, the answers to those questions are not farfetched. It is a trite law that he who alleges must prove his allegations, and in criminal cases it is normally the accuser or the prosecution Republic who is bound to prove the case against the accused. (See: William Ntumbi vs The Director of Public Prosecutions (Criminal Appeal 320 of 2019 [2022] TZCA 72 (25 February 2022). It should be recalled that the onus of proving the charge against the accused person is beyond reasonable doubt. That is provided under section 3 (2) of the Evidence Act, Cap 6 R.E. 2022 which provides that: "..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...” 2 Also, although the statutes have not defined the phrase beyond any reasonable doubt, the case laws have. For instance, in the case of Magendo Paul & Another v. Republic (1993) TLR 219 where the Court of Appeal held that: "Oor a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed” Thus, flowing from the above authorities and the alleged particulars of the charged offence, it can safely be said that the prosecution in this case is responsible to come up with sufficient evidence which proves the above serious allegations leveled against the abovenamed accused persons, beyond any reasonable doubts. It is also through its evidence, the prosecution side is inter alia, expected to provide the answers to the questions why and how the 3 offence was committed by the said accused persons, if at all it was them who committed it. This is so, because it is on record that upon been arraigned before the court with an information of Murder contrary to section 196 and 197 of the Penal Code, both accused persons pleaded not guilty to that charge and, they maintained their stance even after being called upon to enter their defence. In discharging their legal duty as described above, the prosecution fronted seven witnesses namely ASP Patrick Paul Wele (PW1), A/Insp. Swai (PW2), H. 1824 D/C Richard (PW3), Hon. Suzana Gregory Matemu (PW4), Dr. Jackson Keya (PW5), Innocent Elias Jenga (PW6) and Shija Toro (PW7) to prove the allegations levelled against the said accused persons. They also tendered before the court a number of documentary evidence to wit: the cautioned statement of the first accused, the cautioned statement of the second accused person and the extra judicial statement 4 of the first accused as well as the post mortem examination report on deceased death all of which were admitted by this court as exhibits P1, P2, P3 and P4 respectively. On their side, the accused persons fended for themselves and no exhibits were tendered by them. Their evidence, as will be summarised in due course, was intended to challenge the prosecution evidence by raising some reasonable doubts in a bid to convince the court to find them innocent and acquit them. During trial, PW1 testified that on 28.06.2022 he got information from the leader of Bujombe Village, Tanganyika District that a person called Mandalu Ndulu Kwilasa, had been killed with a sharp object. On the following day he led the criminal investigation team to Bujombe, accompanied by a medical doctor. Upon arrival at the crime scene, they found the deceased’s body lying down outside his house. Then he inspected it and saw two severe injuries. The first was at the back of deceased’s neck and the second on 5 his shoulder. The doctor who is PW5, conducted an autopsy of the deceased body and observed that the cause of deceased’s death was due to severe injuries the deceased had sustained. PW1 also testified that after such medical exercise, he assigned several duties to his subordinates which included drawing a sketch map of the scene of crime and recording the witnesses’ statements. However, he said the accused persons were not yet arrested during that time. According to him, as the investigation was underway, it came to their knowledge that the first and second accused were the ones responsible for the murder of the deceased person, then on 02.02.2022 at 2300 hours PW2, he led the convoy team to Bujombe for the purpose of arresting those accused persons. However, they noticed that the two had already escaped. He further testified that it was not until the following day around 0950 hours, when they managed to arrest the first and second accused persons at Kapanga while heading to Mpanda town, then they conveyed them to 6 the office of RCO, Katavi region and, on interrogating the two, it was revealed that they had hired one Hellen Beberu, the famous killer, to go and kill the deceased person. That upon getting that information, PW1 and his fellow police officer drove to Bujombe with a view of arresting the said killer. However, upon seeing them, the man tried to attack one of the police, who had a gun and in the course of defending himself, the said police fired one bullet which assaulted the said man on his waist and caused his instant death. During cross examination, PW1 said when the investigation was on process, they received an intelligence information that the accused persons are the ones who committed the offence. He identified the first and the second accused persons while seated in the dock. PW2 who was the second prosecution witness, testified to have recorded the cautioned statement of the first accused who told him that he was arrested at Kapanga, Tanganyika District on 03.07.2022 around 0900 hours and that in the course of making his cautioned statement, the first 7 accused confessed that he committed the offence of murder by killing the deceased in cooperation with the second accused. Before recording the statement, he informed the accused that he is accused of murder and cautioned him that he was not forced to say anything before him and if he makes his statement, the same will be used as evidence against him in a court of law. He also told the accused that he has the right to choose the language to be used during interrogation and the right to call his relative, friend or lawyer to be present during interrogation. The accused opted to make his statement alone in Swahili language and confirmed to him that he understood his rights. He recorded that statement in an investigation room which had a window, two chairs, one table and fresh air. No one else was therein during interrogation, except him and the first accused. In brief, PW2 said that in his statement, the said accused told him that in order to fulfill that killing mission, they hired one Beberu to kill the deceased for the 8 payment of Tshs. 800,000/= and he paid that person Tshs. 300,000/= as part payment for that work. After recording the cautioned statement, PW2 read over its contents to the first accused who confirmed to him that the same were correct. Apart from that PW2 prayed to tender the said cautioned statement for it to be admitted by the court as an exhibit and the same was admitted as Exhibit P1. On being cross examined, PW2 said the first accused is the one who mention to him the name of Hellen Beberu whom he described as the popular killer. Also, PW2 said he does not know how many people were killed by that person. He also said he does not know what happened to that man. The accused persons are responsible for the death of the deceased person; without them such death could not happen. Apart from that witness, PW3 came and testified that on 03.07.2022 he was assigned to record the cautioned statement of the second accused. Like his fellow interrogator, he cautioned that accused that he was not 9 forced to say anything before him and if he would say anything the same will be recorded and later used as evidence against him in a court of law. He also informed the latter of the accusations of murder facing him and that he has a right to call his friend, relative or lawyer to be present at the time of making his statement. Apart from that, he asked the accused which language he would prefer to be used during interrogation and whether he understood his rights. In response, the second accused opted to make his statement in Swahili language alone and told him that he understood his rights and was willing to make his statement before him. PW3 added that he began to record the second accused statement at 1205 hours and finished at 1400 hours. That in the course of making his statement, the second accused confessed to PW3 that on May, 2022 he met with the first accused at a place called Matimba and, in their conversation, the first accused told 10 the second accused of a man who had intimacy relation with Minza d/o Dotto, one of his wives. So, the first accused gave the second accused the duty of finding for him a person who could kill that man. That in the following day, the first accused gave the second Tshs 50,000/= then he went to Kapanga village where he found one Hellen Beberu, the killer and sent him to the first accused for making an agreement on the work. That after the meeting, the first accused and Hellen Beberu agreed that the first accused would pay the latter a total of Tshs. 800,000/= as payment for that work. That after the agreement, the second accused took the killer to the premises of one Mandalu Ndulu, the deceased and showed him that man, then they returned, then the killer returned to his village. That was on 23.06.2022. Also, PW3 testified that the second accused further stated that on 28.06.2022 the killer returned to the house of the first accused, at Matimba village, then he went there and picked that man to his home place. 11 PW3 also, testified that after finished recording the said accused statement, the latter asked him to give it to him so that he could read its contents. After being given the statement and reading it, the second accused certified that what was recorded from him was correct. Thereafter, both of them wrote their certifications and appended their signatures on that document. In his response to cross examination questions after identifying the second accused in the dock, PW3 said that the first and second accused persons together with Hellen Beberu are the ones who committed the offence of murder, but Hellen Beberu was not arraigned before the court and he does not know his whereabouts. That Hellen Beberu is the one who killed the deceased person. Also, PW3 said he was not present when the incident of murder happened. Next to him was PW4, a Justice of Peace at Mpanda Urban Primary Court whose evidence was to the effect that on 05.07.2022 the first accused was sent to her by the police whereby she ordered the police to 12 leave the court premises, then she put the accused under supervision of the office attendant. After introducing herself to the accused person, she informed him that he was accused of murder and asked him if he wanted to make his statement before her whereupon the accused answer was in the affirmative. She also inspected the accused external body parts after obtaining his consent whereupon she found no fresh scurries or wounds; again, she asked the accused if he had any scurry or injury in his internal body parts, but the latter told her he had none. Having done so, PW4 asked the accused some questions regarding the place he was arrested and when, where he had been before being brought to her and whether there was anyone who forced, threatened or promised him to go and make his statement before her. In reply, the accused said he was arrested at Kapanga Village within Tanganyika District on 03.07.2022 thereafter he was conveyed to Kibo Police Station, then to Mpanda Police Station where he had been 13 remanded until when he was sent to her for recording his extra judicial statement. Apart from that, the accused responded that he was not forced, promised or convinced to go and make his extra judicial statement before her. Also, PW4 testified that before recording the accused extra judicial statement, she asked him if he knows that when he makes his statement before her the same will be recorded and later used in a court of law as evidence against him and the accused replied that he was aware of that legal consequence. She also asked him if he wanted to make his statement before her on his free will and the accused responded that he really wanted to make his extra judicial statement on his free will. Thereafter, PW4 examined the answers of the first accused and was satisfied that he really wanted to make his statement before her on his free will as the same showed he was not force, promised or threatened to go and make his statement before her. 14 According to PW4, thereafter she asked the first accused if he then wanted to make his statement and the latter began to state that he was arrested at Kapanga following the incident of the deceased been hacked by machete. He added that previously he noticed that the deceased had intimacy relationship with his wife and he warned him to stop that thinking the former would stop such behaviour, but the deceased continued because one day he saw the deceased’s massage in his wife’s mobile phone. That the accused told PW4 that the said massage made him feel pain to the extent that he inquired to himself what the deceased was intended because despite being warned by him, he did not want to comply and, because of that he could not control his mind, as a result he decided to procure one Helen @Beberu to kill that person who was having sexual relationship with his wife. 15 PW4 also testified that in the course of making his extra judicial statement, the first accused stated that he agreed with the killer that he would to pay him a total of Tshs. 800,000/= as payment for that work. According to PW4, the first accused further confessed to her that he paid the killer Tshs. 300,000/= as part payment for the work, then on 28.06.2022 the killer went and killed the deceased person whose name was Mandalu. PW4 further narrated that the accused told that he could not make the final payment to the said killer because he was arrested when arranging to furnish that payment. Finally, she concluded that after recording the said statement from the first accused, she read its contents to him and the latter certified to her that the same were correct, then he appended his signature on that document. On her part, she also signed the said document and returned the accused to the police. Again, she handed over the said extra judicial statement to the police. 16 After identifying the said document, PW4 prayed to tender it as an exhibit and since the accused and his advocate did not raise any objection, the court admitted that document as exhibit P3. Upon be further examined, PW4 said the first accused is the one whom she recorded that extra judicial statement. Thereafter, the counsel representing the accused said he had no cross examination questions, same applies to the one who represented the prosecution Republic who told the court she had no re-examination questions. That marked the end of the evidence by PW4 thus, paying the way for PW5 to take the flow. It was his testimony that he is medical doctor and that on 29.06.2022 around 0800 hours he was called by the police (PW1) who informed him that there was an incident of murder and requests them to go to the scene of crime and conduct post mortem examination. 17 That upon arrival at the crime scene, he and PW1 were shown the deceased body which was introduced by its relatives as being of a person called Mandalu Ndulu Kwilasa. Those who identified the body to him were Sengelema Mwarabu and Peter Nduru and, by that time the body was lying on the ground at the deceased’s premises. That thereafter PW5 began to examine the deceased body whereby he observed that the said person was not alive and, had two injuries on his body; one on his neck and another on his left hand. He also noted that the said wounds were caused by a sharp object and that the injury on the deceased neck was deep which indicated the blood vessels had been cut off thus, leading to severe bleeding/ haemorrhage shock. According to PW5, the cause of deceased’s death was therefore, due to excessive bleeding. After finishing to conduct such examination, he prepared the post mortem examination report which he filled in and handed over to the police. Apart from that, PW5 identified the said report before the court and urged it to admit it as an exhibit and the same was admitted as Exhibit P4. 18 In his response to the cross-examination questions, PW5 said that Peter William Ndulu and Sengerema Mwarabu are the ones who identified the deceased body to him. The two persons were introduced to him by a relative of the deceased person and the Village Executive Officer. He was with the police officers when arrived at the crime scene. The deceased wounds were caused by a sharp object. The sixth prosecution witness was PW6. He told the court that on 2020 he was a hamlet chairman of Bujombe in Tanganyika District. His duties by then were to mediate or reconcile person with conflicts and he was also performing the duty of protecting peace in the society. That on 03.03.2022 he was approached by the first accused who reported to him that his wife one Minza Dotto was missing. So, he gave him a letter to find her. In the following day, morning the first accused went to him with his wife and started complaining that his wife was communicating with the man called Mandalu Ndulu Kwilasa. Upon 19 getting that complaint, PW6 sent the militiamen to go and bring the said Mandalu to his office. Soon thereafter, Mandalu Ndulu Kwilasa was brought to the office of PW6 who began to listen the dispute. That Mandalu Ndulu Kwilasa confessed and agreed to pay compensation because of having love affairs with the accused’s wife, but the accused denied to be paid such compensation and instead, vowed to kill the deceased. However, PW6 said, the elders who attended in that meeting, begged the first accused not to speak those words and do that act. Also, PW6 testified that on 28.06.2022 around 1000 hours he was informed that there was a motor cycle rider who had been injured after been cut with a machete. He rushed to the crime scene where he found the deceased body lying on the floor of his house being injured. Immediately, he called Mr. John, the Village Executive Officer and informed him about the incident, then the letter informed the police. 20 PW6 added that the deceased had wounds on his neck and left arm and their appearance indicated that they were caused by a machete. Another piece of evidence from that witness was that before such incident, the first accused went to his home with a guest whom he introduced to him by the name of Hellen Beberu and told him that the said guest had come there to look for his lost cattle. However, PW6 said after two days of that introduction, the incident of murder happened. PW6 testified further, that the police went to the crime scene with a medical doctor, then they investigated the area and the doctor conducted post mortem examination of the deceased body. However, said PW6, the first accused had disappeared just after the incident. He identified him as one of the accused persons in the dock. When cross examined, PW6 said Mandalu Ndulu Kwilasa was the one who was killed by being cut with a machete. Hellen Beberu was introduced to him by Emmanuel Dilla who is the first accused. That Emmanuel Dilla and Jitale disappeared after the incident. That in the 21 previous days when he wanted to make a journey, he used to approach him for a travel permit. Also, PW6 responded that Hellen Beberu was a guest of the first accused, but he did not know where he came from. The deceased was living with his two wives and a number of children. His body was found outside his house where he used to set fire. Not only that, but also PW6 said the village safety and security committee discovered that the first accused is involved with death of the deceased person. Moreover, PW6 said that it was on 28.06.2022 when he was informed about the incident of murder by a person who is not the deceased’s relative. His last answer was that no one saw a person who killed the deceased person. However, during re-examination, the said witness said that he suspected the first accused to have been involved in causing death of the deceased person due to his previous statement and utterance in the meeting that he would kill Mandalu Ndulu, the deceased person. 22 Another prosecution witness was PW7. He told the court that the first accused is his father-in-law whom he had some conflicts with in the year 2022, because the said accused was holding his wife claiming to take care of her due to sickness, but at the same time assigning her some works to do, something he was not pleased with. PW7 also said that during that time he was living at his brother-in-law while waiting for his wife to recover and, that is when he saw a person called Beberu being invited by the first accused who was with the second accused. He added that for about three times the three persons convened a meeting to discuss about a person called Mandalu Ndulu Kwilasa, the deceased person. Not only that, but also PW7 testified that in one of the said meetings, he heard the first accused vowing to do something bad to the deceased person whom he had conflict with regarding his wife one Minza Dotto. However, PW7 testified that when the first accused and his colleagues 23 saw him, they used to stay away and remain quiet, but he heard what they were talking. He further testified that on 28.06.2022, he heard the news of that deceased being cut with a machete. According to him, that was few days after he witnessed the meeting between the first, second accused person and one Beberu. Also, PW7 narrated that Hellen Beberu left the first accused’s premises and soon thereafter, he heard the news of the killing incident. As for the first accused, PW7 said he found him at the crime scene, but later the said accused disappeared. During cross examination, PW7 said that he and the first accused did not understand each other because the latter used to tell him that his wife was sick, but at the same time he was assigning her some works to do. Also, PW7 said that he heard what the first accused and his colleagues were talking despite the fact that they were keeping quit after seeing him. He heard them mentioning the name of the deceased and said they 24 will do something to him. When re-examined, PW7 said he was living in good terms with his father-in-law. On his part, the first accused whom I shall also refer to as DW1, and the second as DW2, testified that he was residing at Bujombe village in Tanganyika District and was arrested by the police officers on 03.07.2022. The police told him that he was accused of killing a person called Mandalu Ndulu. He said he knows that the said person was killed and he went to the crime scene, but he and other people who went there were not told who killed that person. Also, the first accused said he knows the second accused because he was living together with him in the same village. However, he denied to have known one Hellen Beberu. He also testified that he knows PW7 as his son in law and he sometimes had some misunderstandings with him because the said witness did not believe his wife was sick and insisted him to let her go back to him. Apart from that DW1 said he knows PW6 as a person who used to be 25 the hamlet chairman. However, he disputed the fact that he had gone to the office of that witness for reconciling the dispute between him and the deceased person. He also disputed the fact that he convened a meeting with the second accused and one Hellen Beberu to discuss about the deceased person. Likewise, DW1 said that he did not participate in any criminal act. He therefore, urged the court to find him not guilty of the charged offence and acquit him. During cross examination, the said accused said that the deceased’s death was unnatural and happened on 28.06. 2022. He was living with the deceased in the same village and participated in the funeral ceremony. However, he said his advocate did not question PW6 and PW7 about the fact that he was at the funeral ceremony. Also, DW1 said he hid not have any grudges with PW6, but he had some with PW7 which was 26 about his daughter. In re-examination, DW1 said every person who is arrested might have committed an offence. The second accused person, DW2 also denied to have committed the charged offence. His own version was that before being arrested by the police on 03.07.2022 and accused of murder, he went to the scene of crime where he found the deceased with cut wound on his neck. He tried to ask some people around as to who caused such wound, but they told him they did not see anyone. Also, DW2 said that he does not know a person called Hellen Beberu, but he knows the first accused because they had been living together in the same village, Bujombe. He further testified that he knew the deceased person and expected his relatives to come to the court and tell who caused the deceased’s death. He added that he participated in the funeral ceremony, but was not associated with the commission of murder of the deceased person. He 27 thus, prayed to the court to set him free because he did not commit any offence. That was the end of the evidence adduced by both parties. Section 196 of the Penal Code which creates an offence the accused persons stand charged with, provides that: ’>1/7/ person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder” Thus, in discharging their legal duty of proving such offence on the required standard, the prosecution side is bound to lead evidence which proves: (i) that one Mandalu Ndulu Kwilasa died a violent death, (ii) that the death of that person was caused by the first and second accused persons and (iii) that the said accused persons caused the death of that person with malice aforethought. Thus, guided by the principle that the prosecution is enjoined to prove the case against the accused person (s) beyond reasonable doubt, I will start by answering the question whether one Mandalu Ndulu Kwilasa is dead. The answer to that question can easily be discerned from the 28 uncontested prosecution evidence. For instance, in his evidence, PW5 who is a medical doctor testified that upon examining the deceased’s body, he observed two serious wounds; one on the back of his neck and another on his shoulder. He added that the said wounds were caused by a sharp object and that the injury on the deceased neck was deeper which indicated that the blood vessels had been cut off thus, leading to severe bleeding/ haemorrhage shock, which caused the deceased’s death. The evidence of that witness is corroborated not only by the evidence of PW1, PW5, PW6 and PW7 who went to the scene of crime immediately after the incident, but also by the post mortem examination Report, Exhibit P4 which depicts that upon being examined, it was ascertained that the deceased had two injuries on the back of his neck and on his left arm and, that the deceased died due to excessive bleeding. In addition to the above evidence, in their evidence before the court, the 29 first and second accused persons testified to have also gone to the crime scene, and conceded that the deceased died a violent death. Under normal circumstances, the death of the said person cannot be said to have been a natural one particularly by considering the kinds of injuries sustained by the deceased person and the type of object to wit: a sharp object which caused such injuries. Looking at the prosecution evidence, as evaluated above, and which has not been challenged by the defence side, it is apparent that one Mandalu Ndulu Kwilasa died a violent death which was preceded by an unlawful act, as elaborated above. The next question is whether the accused persons herein are the ones who caused death of the deceased person. The prosecution Republic did not bring any witness to testify that he/she saw the first and second accused persons killing the deceased; when and how. The only evidence relied upon by them is that of PW6 and PW7 together with the cautioned 30 statement of the first and second accused persons as well as the extra judicial statement of the first accused. In the light of the above description, it is obvious that the prosecution case is based on circumstantial evidence and the documentary evidence, as hinted above. That being the case, there is a need for the court to be guided by the principles on reliability of circumstantial evidence before determining the above question on the way it deserves. In the case of Halima Mohamed and Another vs Republic, Criminal Appeal No. 30 of 2001 (unreported) the Court of Appeal held that: "In a criminal case in which the evidence is based purely on circumstantial evidence, in order to found a conviction on such evidence, it must be established that the evidence irresistibly points to the guilt of the accused to the exclusion of any other person”. [Emphasis is mine]. Also, in the case of Kulwa Bunzari @Bodo vs The Republic, Criminal Appeal No. 583 of 2021 (CAT at Sumbawanga, unreported) the Court of 31 Appeal while referring to its previous decision in Jimmy Runangaza v. Republic, Criminal Appeal No. 159B of 2017 [2018] TZCA 188, remarked that: “In order for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilt (See Simon Musoke v Republic, [1958] EA 715). Sarkar on Evidence, 15/ Ed. 2003 Report Vol. 1 page 63 also emphasized that on cases which rely on circumstantial evidence such evidence must satisfy the following three tests which are: 1) the circumstances from which an inference ofguilty is sought to be drawn must be cogently and firmly established; 2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and 3) the circumstances taken cumulatively, should form a chain so, complete that there is no escape from the conclusion that within 32 all human probability the crime was committed by the accused and no one else." What we may learn from the above authorities is that, in order for circumstantial evidence to be relied by the trial court to found a conviction against the accused person, the presented prosecution evidence must irresistibly point to the guilty of the accused to the exclusion of any other person. Reverting back to the present case, the prosecution evidence presents an interesting story which must carefully be tested along with the above principles in order to ascertain whether the accused persons are responsible for causation of the deceased’s death. The said evidence reveals that the first accused had a dispute with the deceased whom he was accusing for having sexual relationship with his wife one Minza Dotto and, because of that, he approached the second accused and tasked him to find a person who could kill the deceased person. That evidence came from PW2, PW3, PW4 and PW6. The evidence of PW3 33 also reveals that the second accused was paid Tshs. 50,000/= as his payment for finding the killer. It is also alleged that in the course of playing the role assigned to him, the second accused found one Hellen Beberu and connected him with the first accused who then paid him Tshs. 300,000/= as an advance for the work of killing the deceased, and thereafter the said Beberu played his part by killing the deceased person on 28.06.2022. Again, that evidence came from PW2 and PW3 who recorded the cautioned statements of the first and second accused respectively. Thus, from the above evidence it appears that up to the moment of terminating the life of the deceased, three persons were involved in fulfilling that cruel act. First, it appears that the first accused was the key player who initiated the idea of killing the deceased, then found the second accused who found the killer and, one Hellen Beberu who played the role of killing the deceased. 34 The accused persons however, have distanced themselves from those incriminating facts. Their only concessions are about the fact that they were arrested by the police in connection with the allegations of killing the deceased person and the occurrence of a violent deceased’s death. In the circumstances, I have to consider the evidence of both sides in order to be able to choose between the grain and chaffs as far as the allegations against the said accused persons are concerned. To be in a better position, and avoid a wastage of time, I prefer to discuss a little bit about the so-called Hellen Beberu without whom it could be possible to bind the first and second accused persons with the allegations of murder. This is so, because looking at the available prosecution evidence, it is that person who actually killed the deceased person by using a sharp object believed to be a machete. Under such situation one would have expected him to be a co accused to the first and second accused persons. The nagging question is why was that person not jointly 35 charged and arraigned before the court with the first and second accused persons? Again, the answer to that crucial question need be obtained from nowhere, but the prosecution evidence. Should there be no cogent answer, the prosecution evidence will be said to have fallen short of proving the charges against the first and second accused person to the hilt. It is however, lucky that from the evidence of PW1 is where we can get the answer. According to PW1, on 28.06.2022 when he was leading a team of police to go to Kapanga for arresting the suspects, the said person engaged in attacking one of the police officers who was armed, and in the course of defending himself, the said police fired one bullet which hit the said person on the waist and caused his instant death. That evidence was not shaken during cross examination and defence hearing. Thus, from the foregoing reasons, it is clear that one Hellen Beberu expired in the course of arresting him and that is why he was not charged and tried with the rest of accused persons before this court. 36 Coming to the remaining accused persons, the evidence against the first accused is that he is the one who instigated the killing mission by hiring the second accused to find one Hellen Beberu in order to kill the deceased person. Despite the fact that he has disassociated himself with the allegations of murder of the deceased person, I am of the settled view that he is responsible for causing the deceased’s death. This is due to a number of reasons to be assigned shortly. First, there is evidence of PW6, a former hamlet chairman of Bujombe village which reveals that prior to the incident of deceased’s death, the first accused approached him and complained that the deceased had sexual relationship with his wife one Minza Dotto, then in a bid to reconcile the two, PW6 convened a meeting assisted by the elders. In that meeting the first accused presented his case, and the deceased confessed and dared to pay compensation to the first accused. However, the first accused refused to receive such compensation, but instead vowed to kill the deceased for associating with his wife. 37 The evidence of PW6 also depicts that after a lapse of almost three months, the first accused went with and introduced to him a person called Hellen Beberu and told him that the latter had gone in their village to look for his lost cows, then on 28.06.2022 he got the news that the deceased was killed by a machete. It is however, glaring from the record of this case that despite being legally represented by an advocate, the first accused failed to shake the evidence of PW6 on the allegations that during his meeting with the deceased person, the first accused refused to accept compensation payment and vowed to kill the deceased. In my view, failure of the first accused to shake the credibility of that witness on that aspect, is tantamount to acceptance of the truth contained in the evidence of that prosecution witness. Apart from that, during defence hearing, the first accused admitted to have known PW6 as a person who used to be a hamlet chairman of the place he was residing, but denied to have participated in the meeting 38 convened by that witness to discuss about his dispute with the deceased person. However, during cross examination he said he had no grudges with the said witness. Under such situation, it could not be possible for PW6 to lead fabricated evidence against the said accused. Thus, with the above reasons, I find his reservation to be without merit. Regarding the evidence of PW7, I have not been persuaded to accept it because it appears that he had a family conflict with the first accused who is his father-in-law, which makes the possibility of that witness to tell lies against the first accused, given the fact that he failed to tell the court which words he heard from the said accused and his colleagues. His claim that he heard what the first accused and his colleagues were talking, is not enough as one would have expected him to repeat the words uttered by those persons, just like PW6 did, but he did not do that. Thus, based on the foregoing reasons, I find the evidence of that prosecution witness to be incredible, save for the rest of the prosecution 39 witnesses which I find to be credible and relevant regarding the allegations levelled against the first accused. Apart from that evidence, the prosecution relied on the evidence of PW2, a police officer who recorded the cautioned statement of the first accused (Exhibit P1), and the evidence of PW4, a Justice of Peace who recorded the extra judicial statement of that accused person (Exhibit P3). In their oral testimonies before the court, the said witnesses testified that in the course of making his statements before them, the first accused person confessed that he is the one who hired one Hellen Beberu to kill the deceased person whom he was condemning for having intimacy relationship with one of his wives. Their evidence is corroborated by the cautioned and extra judicial statements of the first accused person which were neither objected when tendered as exhibits, nor retracted, leave alone being repudiated by the said accused person during trial. In the cautioned statement of 40 the first accused which is Exhibit P1, it is shown that the said accused told PW2 that: “...wasiwasi mkubwa ukanipata na nikafikiria kuwa MANDALU S/O NDULU anaweza kuniua ili aweze kumchukua mke wangu. Na baada ya hapo mimi mwenyewe nkachukua maamuzi ya kutengeneza mpango wa kumuua MANDALU S/O NDULU kabla yeye hajaniua. Pia mwenyekiti wangu wa kitongoji aitwaye INOCENT S/O JENGA niliwahi kumueleza kuhusu mgogoro wangu wa mimi na MANDALU S/O NDULU kuhusiana na MANDALU S/O NDULU kutembea na mke wangu MINZA D/O DOTO lakini mgogoro huo haukupatiwa ufumbuzi ndipo ikabidi nikifikie uamuzi wa mwisho wa kumuua MANDALU S/O NDULU.Hivyo mimi nilimshirikisha mtoto wa dada yangu aitwaye JITALE S/O MWIGULU na ndipo tukafikia muafaka wa kumuita HELEN S/O? maarufu kama BEBERU ambaye ni mkata mapanga...tukaanza kukaa kikao mimi, BEBERU na JITALE...tukakubaliana kuwa kazi 41 hiyo ya kumuua MANDALU S/O NDULU ataifanya kwa shilingi laki nane 800,000/= ambayo mimi nilimpa na nilinza kumlipa kwa mara ya kwanza shilingi laki tatu...ilipofika saa 21:30 HRS HELEN @BEBERU alinipigia simu na kuniambia kuwa kazi niliyompa ya kumuua MANDALU S/O NDULU ameshaifanya kwa kumkata upanga mmoja maeneo ya kichwani” Also, from the extra judicial statement of the first accused person, the following is what was stated by him before PW4: - "...Hiniuma sana na ni/ihoja ana nia gani huyu mtu maana nimeshamuonya hataki basi hana nia nzuri nami. Ndipo sasa mimi ni/ishindwa kuzuia aki/i yangu yaani ni/irukwa kabisa naaki/i ndipo ni/iamua kumtuma Hereni @Beberu amuue huyo bwana a/iyetembea na mke wangu na tu/ikuba/iana nitam/ipa /aki nane (800,000/=). Ni/imtangu/izia shi/ingi /aki tatu (300,000/=) i/iyobaki bado sijampa na tu/ikuba/iana ningempa he/a i/iyobaki baada ya kuma/iza kazi. Ndipo sasa beberu a/ienda na kumuua huyo jamaa 42 namfahamu kwa jina la Mandalu na ilikuwa tarehe 28 Mwezi Juni 2022 na ndio sasa nilikuwa kwenye mchakato wa kumalizia kumlipa hela iliyobaki ndipo nilikamatwa.” The above excerpts not only corroborate the evidence of PW2 and PW4, but also tells it all about the way the first accused caused the deceased’s death starting from planning how to kill the deceased, making the agreement with the so-called Hellen Beberu and, the amount of money he had paid to that person for the work of killing the deceased person. Also, the cautioned statement of the first accused corroborates the evidence of PW6. It should also be recalled that in their testimonies, PW2 and PW4 narrated that before recording the first accused statements, they informed him the nature of the offence he was accused of and the legal consequence of the statements if he could decide to make before them. Unfortunately, when the said witnesses prayed to tender those statements as exhibits, the first accused and his advocate did not raise any objection regarding those prayers which tells that the 43 accused was in accord with what the said witnesses testified against him. In the circumstances, it is my settled view that the chain of events unveiled by the evidence of such prosecution witnesses, has not been broken, and those events having been proved against that accused beyond any reasonable doubt, irresistibly points to the said accused as among those who caused death of the deceased person. In regards to the accusations against the second accused person, it is only the evidence of PW3 and PW7 which appears to incriminate him. The evidence of PW1 only shows that the said accused was arrested on 03.07.2022 in connection with the allegations of killing the deceased, a fact which he has conceded whilst disassociating himself with the accusations that he is among those who participated in causing the deceased’s death. Also, the evidence of PW2 focuses on the allegations against the first accused, though to some extent it describes the second as the co 44 accused, something which has been disputed by the second accused. Again, the evidence of PW4 only mentions the first accused; likewise, the evidence of PW5, which is about death of the deceased and, that of PW6 which does not have any mention about the second accused. Looking at the evidence of PW2, it appears to me that despite the fact that in his testimony PW2 said the first accused mentioned the second accused as his co accused whom he participated with in killing the deceased person, the evidence of such witness has not elaborated how the second accused participated in committing the charged offence. For example, PW2 did not say if the first accused paid some amount of money to the second accused for him to find the killer. Nor did he tell the court if the first accused mentioned to him the place and date, he convened a meeting with the second accused and discussed about how to find the killer. Not only that, but also having examined the evidence of PW2 and the cautioned statement of the first accused, I have noticed that they 45 present two different things regarding the participation of the second accused in causing death of the deceased person. While in his testimony, PW2 told the court that the first accused told him he involved the second accused in paying the killer Tshs 800,000/=, the contents of Exhibit P1 show that it is only the first accused who paid that amount of money to the said person, and not with the second accused. Coming to the evidence of PW3 who recorded the cautioned statement of the second accused, Exhibit P2, his evidence shows that the second accused confessed to him that he was paid Tshs. 50,000/= by the first accused, as his payment for the task of finding the person who could kill the deceased person. Indeed, that appears to have also been stated in the cautioned statement of the second accused. However, as I have just indicated above, it is nowhere stated in the evidence of PW2 and in the contents of Exhibit P1, that the second accused was paid such amount of money in order to find the killer. Even the evidence of PW4 who recorded the extra judicial statement of the 46 first accused, does not state anywhere if the first accused paid the second Tshs. 50,000/= in order to find for him a person who could kill the deceased person. This raised a doubt whether what is contained in the cautioned statement of the second accused is true. This is because had it been so, it could not be difficult to find such incriminating evidence in the cautioned statement of the first accused. In other words, without there being evidence to show that the second accused was paid Tshs. 50,000/= by the first accused in order to find a person who could kill the deceased persons, it cannot be safely said without certainty that the second accused is also responsible for the death of the deceased person given the fact that he has denied such serious allegations levelled against him. Besides, looking at the evidence of the prosecution side in general, what is brought in my mind is that the first accused procured the second accused and one Hellen Beberu to fulfill his dark behaviour of killing the deceased person. Section 22 of the Penal Code provides that: 47 “22. -(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing namely- (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) (N/A); (d) any person who counsels or procures any other person to commit the offence, in which case he may be charged either with committing the offence or with counseling or procuring its commission. From the above provisions and the available prosecution evidence, there is no doubt that the while paragraph (a) of section 22 relates to a person who did the act of killing the deceased who in this case, is one 48 Hellen Beberu, paragraph (b) relates to the second accused who is alleged to have done an act for the purpose of aiding one Hellen Beberu to kill the deceased, and paragraph (d) of that section relates to the first accused who is alleged to have procured one Hellen Beberu to kill the deceased person. Now considering the evidence adduced by both sides in this case, it is my settled view that the prosecution has satisfied the court beyond any reasonable doubt, that the first accused and one Hellen Beberu are the ones who caused the death of deceased person. This is because despite his attempt to deny the allegations of killing the deceased person, the first accused has failed to challenge first, the evidence of PW2 and PW4 who tendered his cautioned and extra judicial statements to show that he confessed to have procured one Hellen Beberu to go and kill the deceased persons. Secondly, when the said documents were sought to be tendered in evidence, neither the first accused, nor his advocate objected such 49 prayers. This means, the said accused admitted that what is contained in his cautioned and extra judicial statements is nothing, but true. Thirdly, the court records are glaring that the first accused neither retracted, nor repudiated the cautioned statement tendered by PW2 and the extra judicial statement which was tendered by PW4 which again indicates that he made those statements before such prosecution witnesses voluntarily. This entails that the prosecution evidence suits the requirement of section 22 (1) (d) of the Penal Code as far as the allegations against the first accused are concerned. Regarding the second accused, I cannot not spend much time to find whether or not he is also a principal offender in this case. This is because, there is no cogent evidence to show that he was paid Tshs. 50,000/= by the first accused in order to find one Hellen Beberu to kill the deceased persons, as PW3 wants the court to find. Had that been so, one would have expected the first accused to clearly state in his cautioned statement and extra judicial statement that he hired and paid 50 the second accused Tshs. 50,000/= in order to find one Hellen Beberu for the work of killing the deceased persons. Also, I am unable to accept the evidence of PW7 who claimed to have seen the second accused at the house of the first accused attending a meeting with the former and discuss about the deceased person. In my view, the evidence of such witness is doubtful because he did not tell the court which words he heard from the second accused indicating to plan the killing against the deceased person. He also said that when the first accused and his colleagues saw him, they stopped talking, but he heard what they were saying. However, PW7 did not retell those words to the court. This makes his evidence not to be reliable as far as the allegations against either of the two accused are concerned. More so, the second accused has strongly denied the allegations against him during defence hearing. The foregoing, constrain me to find that the allegations against the second accused, have not been proved to the required standard. 51 In regards to one Hellen Beberu, despite fact that he is no longer alive, it is crucial to put the records clear that the prosecution evidence describes him as a person who falls under paragraph (a) of section 22(1), Penal Code for his actual act of killing the deceased person after being procured by the first accused for the payment of Tshs. 300,000/= as an advance payment. That is exhibited by the evidence of PW2 and PW4 which is also corroborated by the cautioned and extra judicial statements of the first accused which depicts that the said person was promised to be paid Tshs. 800,000/= by the first accused for the work of killing the deceased person, an act which he did, thus resulting to the death of the deceased person on 28.06.2022. Thus, due to the reasons which I have endeavored to provide hereinabove, I am of the settled view that the prosecution side has satisfied the court beyond any reasonable doubt that the first accused 52 and one Hellen Beberu, are the only persons who caused death of the deceased person. However, they have not passed the test of proving the similar allegations against the second person and because of that, I find the second accused not guilty of the offence of murder and order that he should be released from prison custody save for some other lawful course, if any, which makes him being held therein. The remaining question is whether the first accused had malice aforethought when he caused the death of the deceased person in corroboration with one Hellen Beberu who has already expired, as stated above. Section 200 of the Penal Code provides, intel alia, that: "MiUce aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- (a) (N/A); (b) knowledge that the act or omission causing death wil probably cause the death of or grievous harm to some person, whether that 53 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) (N/A” It has been stated by the prosecution side that the first accused person procured one Hellen Beberu to go and kill the deceased person whom he was condemning for having love affairs with his wife. In the course of making his statement before PW2, the said accused was recorded to have said that: "Mnamo mwezi wa st tarehe 28 mwaka 2022 HELLEN @BEBERU alirudi tena na nikampokea na siku hiyo ilikuwa ni majira ya asubuhi na akanywa chai na chakula cha mchana na ilipofika saa 1500 hrs aliniaga kuwa anaenda kufanya kazi hiyo ya mauaji na nitapata habari kwa watu na tutawasiliana kwa njia ya simu. Ilipofika majira ya saa 21:30 hrs HELEN @BEBERU alinipigia simu 54 na kuniambia kuwa kazi niliyompa ya kumuua MANDALU s/o NDULU ameshaifanya kwa kumkata upanga mmoja maeneo ya kichwani.” The above excerpt clearly indicates that the first accused had knowledge that his act of procuring one Hellen Beberu, will actually cause the death of or grievous harm to the deceased person, and he later got the confirmation from one Hellen Beberu that the latter had killed the deceased by cutting him with a machete. All that indicates that the first accused had a malice aforethought of killing the deceased person. It is thus, due to the foregoing reasons that I find the first accused to be guilty of the offence of Murder contrary to section 196 and 197 of the Penal Code, and proceed to convict him of committing such offence, as charged. A.A. MRISHA JUDGE 14.11.2024 55 SENTENCE I have considered both aggravating and mitigating factors of this case, but there is only one punishment for the offence of Murder once it is proved. My hands are tied by the law, and I have to pronounce the sentence. I sentence the accused Emmanuel Dilla Suluba to a suffer death penalty, as provided under Section 197 of the Penal Code [Cap 16 R.E 2022]. I further direct that he suffer death by hanging as provided under section 26(1) of the Penal Code [Cap 16 R.E 2022]. It is so ordered. Sgd: A.A. Mrisha Judge 14.11.2024 Right of Appeal is fully explained. A.A. Mrisha Judge 14.11.2024 Judgment delivered in the presence of Ms. Flavio Shio, learned State Attorney, Ms. Monica Lugonda, learned Advocate for 3rd accused who holds brief of Mr. Gadiel Sindamenya, learned Advocate for 1st and 2nd accused and Mr. Eliud Ngao, learned advocate for 4th accused, in the chamber of the High Court Sumbawanga District Registry through video 56 conference on this 14th November, 2024 in the presence of all accused persons and their advocates who are seated in open Court of the Resident Magistrate's Court of Katavi. A.A. Mrisha Judge 14.11.2024 57