Criminal Session Case 84 of 2022 Judgment MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL SESSION CASE NO. 84 OF 2022 REPUBLIC VERSUS ST BUDAGALA S/O JOHN @ SHIJA NYALU S/O KONYA @ SALU 2ND ACCUSED 24th & 28th March, 2025 MRISHA, J. The criminal session case at hand originates from the Resident Magistrate's Court of Katavi at Mpanda in Preliminary Inquiry (P.I) No. 08 of 2022. It involves the allegations of murder contrary to section 196 of the Penal Code, Cap 16 R.E. 2019 (the Penal Code) against Budagala John @Shija and Nyalu Konya @Salu henceforth the first and second accused persons respectively. Prior to being committed to this court for trial, the two were arraigned before the said subordinate court which conducted the committal proceedings, as per the law. 1 At the outset, it is important to note that following the total denial of the abovenamed accused persons to have murdered the deceased person one Ramadhani Hamis Juma on 05th day of February, 2022 at Bugwe Village within Tanganyika District in Rukwa Region as alleged in the particulars of the charge sheet, the prosecution Republic marshalled a total number of six witnesses and successfully tendered two documentary exhibits to wit: the Postmortem examination Report and Cautioned statement of the first accused person which were undeniably admitted as Exhibits P1 and P2 respectively. It is however, noteworthy that after the closure of the prosecution case and, upon going through the prosecution evidence and the provisions of section 230 of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA), this court found out that the prosecution failed to make their case against the second accused whom it allowed to get off for having no case to answer as far as the allegations of murder levelled against him and the first accused, are concerned. The foregoing entails, therefore, from now onwards, the court will focus much on the allegations against the remaining first accused to see whether he is responsible for the murder to the deceased person the subject of this case. As indicated earlier, a total number of six prosecution witnesses testified for the prosecution Republic. Conversely, there was only one witness from the defence side who is the first accused himself and, unlike the prosecution side, 2 no documentary evidence was tendered by such defence witness. In summary, the following is the evidence adduced by both sides. Starting with the prosecution Republic, we have the evidence of PW1, Dr. Joseph Josephat Msongela who testified that he is a medical doctor with 7 years working experience. On 14.02.2022 he was doing his duties at Tanganyika District Hospital when he was assigned to accompany the police to the crime scene for the purpose of conducting medical examination of the body of Ramadhan Hamis Juma which was identified to him by one Abdul Hassan Kazembe (PW4), the deceased's relative. While there, he examined the body and observed it to have sustain a wound on its leg, then he gathered some information from deceased's relatives which revealed that in the past few days the deceased had been beaten on his head by a group of vigilantes and was complaining to have a head ache. The information also revealed that subsequent thereto, the deceased was sent to Mpanda District Hospital for treatment, but he was then referred to Mbeya Referral Hospital for further treatment. However, due to financial constraints, he could not be taken there. Hence, he was taken back home where he continued to suffocate from head ache until he died. That according to such historical information and the observation he made from the deceased body, PW1 ascertained that the cause of death was brain 3 traumatic injury which according to him, could be caused by beatings or being hit by a blunt object or falling down. Apart from the above testimony, PW1 submitted a prayer that the postmortem examination report which he filled in after examining the deceased's body, be admitted as an exhibit. As there was no objection against that prayer, the same was admitted as Exhibit P1 and PW1 read out its contents before the court loudly. When cross examined, PW1 said he did not tell the court that the deceased's health condition was good before he was beaten, but he stated the cause of death of the deceased person. Secondly, there is the evidence of PW2, Juma Shaban Kabung’ando whose evidence is to the effect that he is a resident of Bugwe Village in the hamlet of Igalukilo. About the incident, he testified that on 05.02.2014 there was cattle theft in that village and on that date at 1900 hours, he was at the Video show hut when he saw a group of vigilantes approaching the area and began to order all Sukuma people to get out of that hut. At first, he run away after noting there was no signs of peace in that area, but he soon returned to the area and saw a group of vigilantes out side the said hut surrounding the deceased person whom he named as Ramadhan Hamis. 4 That soon thereafter, he witnessed the said vigilante starting to beat the deceased by stick fifteen times. Among the ones whom he saw beating the deceased were Budagala John (the first accused) and one Lugobi Mayunga. He added that the vigilante group had many people of about two hundred, but he managed to identify the abovenamed persons. That after the incident the deceased went back home. In the following day, he met with two persons namely Bushoke and Mashuka who told him that the deceased's condition had changed. He then accompanied them to the deceased home and found him in bad condition. When he asked him what had befell him, the deceased complained to have severe head ache after being beaten by the vigilante on his head. Thereafter, the process of getting a PF3 in order to take the deceased to the hospital began. However, after that the deceased died on 13.02.2014 after his condition became worse. Another piece of evidence from PW2, was that the deceased was his uncle. After the incident, those who punished him with sticks, disappeared. While in court, PW2 identified only the first accused from the dock. During cross examination, PW2 responded that at the scene of crime there were many people whose number is estimated to be over two hundred, but he did not describe the intensity of light which enabled him to identify the 5 persons. However, he maintained to have known them before the incident as he used to live with them in the same village. And, when re-examined, he said he managed to identify the first accused and his fellows because they participated with him in the process of searching for the lost cattle and there was a light. Also, he was there in a group of vigilantes. Thirdly, the court recorded the evidence of PW3, Christina Daud in whose evidence she described herself as an entrepreneur who owns a restaurant which is near the Video show hut where the deceased used to run sports video show business. On 05.02.2014 she was at her work place when she saw a group of vigilantes heading to the video show hut and began to order all persons of Sukuma tribe to get out from that hut. After a short while she saw people coming out of the hut and, suddenly the vigilantes among whom she managed to identify Budagala John @Shija (the first accused) and one Lugobi Mayunga, arrested the deceased one Ramadhan Hamis and one of them who is Lugobi, beat him once on his head with a stick and as a result, the deceased fell down. That thereafter, she saw the deceased being taken to the nearby vigilante area. At 2000 hours, PW3 saw the deceased coming to her restaurant while touching his head and he was limping, which indicated that his condition was 6 not good and he was beaten. The deceased asked her to give him some food, but when given the same, he failed to eat and directed PW3 to take it from him. That such unusual signs, prompted PW3 to ask the deceased what had happened to him and he said he was canned with a stick by the vigilantes at their area. He mentioned to her the names of Lugobi and Budagala as among those who had beaten him. That the deceased also told her that those who ordered the vigilantes to beat him were Seleman Maduka, Mayari, Mayunga and mzee Konya. Also, PW3 testified that thereafter the deceased's relatives gathered and discussed about taking him to the hospital for some treatment, but later she got some information that the deceased died. When examined if she could identify the culprits before the court, PW3 only managed to identify Budagala John, the first accused claiming that the rest had taken to their heels just after the incident. Upon being cross examined, PW3 said Lugobi Mayunga is the one who beat the deceased on his head. She was not there when the deceased was beaten by other vigilantes and she did not state the intensity of light which enabled her to identify the persons whom she mentioned in her testimony. And when re-examined, PW3 said the deceased is the one who told her that he was beaten by the vigilantes. 7 The fourth to take the floor was PW4, Abdul Hassan Kazembe. Apart from describing himself as a peasant and resident of Bugwe, he testified to have known the deceased Ramadhan Hamis Juma as his young brother. On 05.02.2014 he was at Sibwesa, Tanganyika District where he went to look for the lost cattle. That while there, he was called by one Kanuda who informed him that his young brother had been beaten by vigilantes. Upon getting such information, he rushed to Igalukilo, Bugwe village, but could not find his young brother at his home; some people whom he met on the way, told him the deceased was at the centre, then he went there and luckily found him though in bad condition, as he was complaining to have been beaten by the vigilantes including Budagala John @Shija, the first accused who was the only person he managed to identify at the crime scene. Thereafter, he went to the nearby shop where he bought some pain killers and gave them to the deceased person. Later PW4 took the deceased to Mpanda District Hospital with other relatives and after getting some treatment, the doctors issued them with a referral letter. Since they had no money to pay for transport and medical treatment, they decided to send the deceased to his mother at Kambanga village in order to find some money, but unfortunately, before they could get it, on 13.02.2022 PW4 received a call from the deceased's mother who informed him that the latter had passed away. 8 Thereafter, PW4 went to Kambanga and, on 14.02.2022 he went to Kibo Police Station and reported about the death of his deceased young brother. The police then went with him to Kambanga for medical examination of the deceased body. After the doctor had conducted post mortem examination, he and other relatives were allowed to take the deceased body for burial ceremony. Responding to cross examination questions, PW4 narrated that after the deceased informed him that he had severe head ache, he went to the pharmacy to buy him some pain killers, but the pharmacist refused to sell the same to him until he could present a medical prescription. That the deceased identified Lugobi Mayunga as the one who beat him. That he went to the Police in order to get a PF3 after getting an introduction letter from the Village Chairman. PW4 also narrated that the deceased was a peasant and he was running a video show business, but was not associated with the vigilantes. When examined by the court, he asserted the deceased person was not belonging to Sukuma tribe, rather he was a Nyamwezi. The fifth prosecution witness was PW5, A/Inspector Pendael Namama whose testimony indicated that he is a Police Officer who during the material time, was working with Mwese Police Station as the OCS (Officer Commanding Station), though before that he was working with Tanganyika Police Station as 9 an Accountant. His other duties while there, were to supervise other police officers and perform other duties he was assigned by his superior boss. He also testified that on 30.03.2022 about 0200 hours mid night, his superior boss instructed him to go at Bugwe Village and arrest the accused persons Budagala John Shija and Nyalu Konya Salu who were alleged to have committed the offence of murder. Having received such instruction, he went to the premises of the said accused with his fellow police officers and managed to arrest them after surrounding their houses, then conveyed them to Tanganyika Police Station. According to PW5, the process of arresting the said accused persons was done by the assistance of the complainant. He added that they went to arrest the accused persons after the OC-CID received information from the informer. Apart from that, PW5 told the court that the abovenamed accused person escaped after committing the offence of murder and were hiding and living in unknown places until they were arrested on 30.03.2023. Here in court, PW5 managed to identify both accused persons in the dock. During cross examination, PW5 responded that he did not involve the local leader when arresting the said accused persons. Nor did he and his colleagues introduced themselves to the accused persons before arresting them. He also responded that he did not state the procedure on how he arrested the accused persons and send them to the Police Station. 10 Like wise, in his reply, PW5 said he did not inform the accused persons about the nature of the offence they were arrested for. However, he disagreed that the had informer wrongly mentioned the second accused. When re-examined, the said prosecution witness narrated that the accused persons were arrested for the offence of murder. The last from the prosecution side was PW6, H.267 Corporal Yona Ba Akonay. Apart from telling the court that on 30.03.2023 at 1200 hours, he saw the accused persons herein being brought to the Charge Room Office by the Assistant Inspector in connection with the offence of murder which was registered as TNG/IR/49/2022, he testified that he is the one who recorded the cautioned statement of the first accused after being instructed by his superior boss to do so. Before doing that, he took the said accused from the lock up of Kibo Police Station where he was working, and proceeded with him to the interrogation room. In that room, there were two chairs and one table and the room was clean and quite for interrogation. He then introduced himself to the said accused, cautioned him that he was accused of murder of Ramadhani Hamisi and informed him that he has a right to make or not make any statement before him, but any statement he makes will be used as evidence against him in a court of law. 11 Also, he informed the accused that he has a right to call his relative, lawyer of friend to be present when he will be making his statement and to choose the language to be used during interrogation, but the accused opted to make his statement in Swahili language and alone. The accused also introduced himself to him, then PW6 asked him to sign the caution part and he did the same. Thereafter, he began to record the first accused's statement at 1300 hours and finished at 1525 hours. Subsequent thereto, he read over the statement to the first accused who confirmed to him that the same was correct, then he asked him to sign it and the accused did so by appending his right thumb print as he did not know to read and write. Finally, PW6 also signed his part on that document. In short, PW6 testified that in the course of making his statement before him, the accused confessed to have committed the offence of murder, then he urged the court to admit such cautioned statement as an exhibit. The same was then admitted as Exhibit P2 due to want of objection from the defence side and, its contents were read loudly by PW6. Also, PW6 identified the first accused as the one whom he recorded his cautioned statement on 30.03.2023. On being cross examined, PW6 said that he recorded the first accused's cautioned statement and read it over to him before asking him to sign it. He also gave him the right to make alteration or correction. He recorded that 12 statement under section 58 (4) of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA). In his response, PW6 also narrated that the first accused told him he does not know how to read and write and, that the cautioned statement he recorded from the said accused does not show it its contents were read by him or read to him for he did not cross through the irrelevant words between „...nimempa maelezo haya ayasome'and/or „nimemsomea maelezo haya...'. He maintained his position on that aspect even when reexamined by the learned State Attorney. Not only that, but also, he added that the accused's statement must be recorded within four hours after arriving to the Police Station. He also said that the first accused was reached to the Police Station at 1200 hours and he started recording his statement at 1352 hours, but he did not know when the said accused was arrested. On his part, the first accused person, Budagala John @Shija whom I shall sometimes refer to as DW1 or the first accused interchangeably in due course, disassociated himself from the serious allegations of murder levelled against him and he did that at the time of entering his defence. For instance, despite admitting to have been apprehended at his premises on 30.03.2022 in the midnight by PW6 and other police officers, DW1 denied to have had any 13 knowledge about the incident of murder of the deceased person or the cattle theft alleged to have happened at Bugwe Village on 05.02.2022. He also told the court that when arrested, he was not informed of the nature of the offence he was arrested for. Even the police who arrested him, did not tell him why he was arrested on that date. He just came to know the offence charged after being arraigned before the court for the first time. Despite that, he told the court that he does not know the persons mentioned by PW2. Regarding Exhibit P2, the first accused complained that he was tortured by the police who forced him to confess that he is a vigilante and that he is the one who committed the offence of murder when he decided not to say anything. As if that is not enough, he complained that the police who recorded that statement did not read its contents to him and forced him to append his right thumb print on it. It was due to the above evidence that DW1 stressed that he knows nothing about the offence charged and proceeded to urge this court to set him free claiming that he did not commit that offence. In his response to cross examination questions, the first accused said that he did not know why the police arrested him. At the Police Station they reached at 1100 hours. He also said he is not familiar with PW2, save for Chale Kolokosha who is his hamlet leader. He did not have grudges with anyone and does not know if 14 there were cattle stolen between 03.02.2022 and 04.04.2022. Also, he said he does not know vigilantes or the mwano (tribal alarm). Nor does he know the place where they used to show football matches. Also, DW1 said he does not know why the prosecution witnesses mentioned him. That the police tortured him to the extent of fracturing his finger and they are the ones who could permit an injured person to go to the hospital for treatment. Also, when re-examined, the said accused said he just heard from the police officer that they arrived at the Police Station at 1000 hours. From the above evidence, it is crystal clear that despite the prosecution's attempt to glue the first accused with some incriminating evidence like the one adduced by PW6, which shows that the said accused confessed to have committed the offence charged, the evidence recorded from that accused reveals that he has vehemently distanced himself from those allegations. That means therefore, that in order to win conviction against the said accused, the prosecution Republic cannot shelter behind the universally well- known principle of law that the prosecution bears the duty to prove all the ingredients of the offence beyond any reasonable doubt. (See: Woolmington vs. DPP [1935] A.C. 462; [1935] UKHL 1 and Anthony Kinanila & Another vs. R, Criminal Appeal 83 of 2021, [2022] TZCA 356. 15 The rationale for this principle and legal position is that since the burden lies throughout on the state which in our case, is the Republic, the accused has no burden or onus of proof except in a few cases where he would be under the burden to prove certain matters. (See: Milburn v Regina [1954] TLR 27). In that case, the Court stated inter alia, that: "It is an elementary rule that it is for the prosecution (the Republic) to prove its case beyond reasonable doubt and that should be kept in mind in all criminal cases” Again, going through the provisions of the law, it may be noted that the above principle of law has also been stressed. For instance, section 3 (2) (a) of the Evidence Act, Cap 6 R.E. 2019 (the Evidence Act), provides that: "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..."[Emphasis supplied] It is also important to note that under section 110 of the Evidence Act, it is a principle of law that a person who asserts existence of a certain fact bears a burden to prove its existence. This principle applies to civil and criminal cases. However, the only difference in its application is the burden or standard of proof because a higher standard of proof, that is, proof beyond reasonable 16 doubt, is required in criminal cases than in civil cases. (See: Bahati Mwakalasya v. Kampala International University (K.I.U) [2020] T.L.R. 163 and Bater v. Bater [1950] 2 All E.R. 458 at 459. In the later case, Lord Denning L.J., as he then was, had this to say: “It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt, but there may be decrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear." More so, it should be noted that in criminal cases the burden [of proof] rests upon the prosecution to prove that the accused is guilty „beyond reasonable doubt' and that, when therefore the case for the prosecution is closed after sufficient evidence has been adduced to necessitate an answer from the defence, the defence need do no more than show that there is reasonable doubt as to the guilty of the accused. (See; R. v. Stoddart (1909) 2 Cr. App. Rep. 217 at page 242 and Hornal v. Neuberger Products Ltd. [1956] 3 All E.R. 970) Back home, the offence of murder contrary to section 196 of the Penal Code has various ingredients which need be proved by the prosecution side based 17 on the required standard as it has been elaborated in the above principles of law. This means, it has to be proved that the deceased died, secondly; that, his death was unnatural or violent, thirdly; that, it is the accused person who is responsible for causing the deceased's death unlawfully and fourthly, that in doing so, the accused had a malice aforethought. Looking at the prosecution evidence, it seems that what has been relied upon by the prosecution Republic in a bid to discharge their legal duty, is the direct or visual identification evidence of PW2 and PW3 as well as the documentary evidence tendered by PW1 and PW6. Starting with the first and second ingredients of an offence of murder as outlined above, I have keenly taken into account the evidence of PW1 who conducted the postmortem examination of the deceased body on 14.03.2022 and ascertained that the deceased died due to traumatic brain injury. His evidence is corroborated by Exhibit P1 which backs his oral testimony regarding the cause of death of the deceased person. Also, I have considered and taken into account the evidence of PW2 and PW3 who testified to have witnessed the incident of deceased being beaten by the vigilantes on 05.02.2022 and later heard him complaining to have severe head ache due to those beatings. 18 Not only that, but also, I have considered the evidence of the rest of prosecution witnesses particularly that of PW4 whose evidence shows that on 14.03.2023 he identified the body of the deceased person to PW1, a medical doctor before the latter began to conduct postmortem examination of the deceased body. Likewise, I have examined and gone through the postmortem examination report tendered by PW1 as well as the evidence of DW1 who apart from denying to have murdered the deceased, has not disputed the fact that the deceased expired which tells that he had no qualms with that fact. Having done so, it is my view that the prosecution evidence has sufficiently proved beyond any reasonable doubt, that the deceased died a violent death. The foregoing therefore, disposes of the quest regarding existence of the first and second ingredients of murder, in the affirmative. What remains for my determination, is whether or not the accused is the one who caused the death of the deceased person unlawfully. Should the answer to that question be in the affirmative, then the next question will be whether the said accused killed the deceased with malice aforethought. In other words, in order to determine that final issue, the prosecution side should first of all, succeed to prove on the required standard, that the first accused herein caused the death of the deceased person unlawfully. 19 As I have alluded earlier, the prosecution side appears to have relied on two major types of evidence to wit; direct or eye witness and documentary evidence. With the direct evidence, we have the evidence of PW2 and PW3 whose evidence depict that on 05.02.2022 they witnessed a group of vigilantes attacking and assaulting the deceased with sticks. According to PW2 on the fateful date, he was at the scene of crime where the deceased used to run a sports video show business, then suddenly he saw a group of vigilantes including the first accused and one Lugobi Mayunga, approaching the deceased's hut, ordering him and other Sukuma people to get out. It was also his evidence that after complying to the said order, the deceased was arrested and taken to the vigilante area and he witnessed that move until when he saw those people beginning to beat the deceased with sticks fifteen times. However, since it was 1900 hours, he only managed to identify the first accused and one Lugobi Mayunga. Again, in his evidence PW2 said that after the incident, he met with the deceased who was complaining to have severe head ache and when he asked him what had happened to him, the deceased told him he was beaten by the vigilantes. 20 When probed on how he managed to identify those persons, PW2 said he was with them in the process of searching for the lost cow, though he did not describe the intensity of light he used to identify them. He added that the group of vigilantes had more than two hundred people. On her part, apart from singing the same song with PW2 on how the group of more than two hundred vigilantes approached the deceased's working place and ordered deceased and other Sukuma persons who were in the hut to get out, she only intimated that after the deceased complied with the vigilantes' order and got out of his business hut, she saw one Lugobi Mayunga beating him with a stick on his head until he fell down before he could soon thereafter being taken to the special vigilantes' area. The law on visual identification is settled, that before relying on it the Court should not act on such evidence unless all the possibilities of mistaken identity are eliminated and that the Court is satisfied that the evidence before it is absolutely watertight. (See: Chokera Mwita vs. Republic, Criminal Appeal No. 17 of 2010 (unreported). In the case at hand, the evidence of the said eye witnesses clearly shows that it was 1900 hours when the deceased was arrested, taken to the special vigilante's area and beaten. Considering the fact that the incident happened in the rural area and, in a group of more than two hundred people and that the evidence of such prosecution witnesses is silent as to whether at the place 21 where those vigilantes used to punish the deceased, there was enough light, it was incumbent upon the said witnesses to describe the means they used to identify the first accused and others whom they claimed to have seen beating the deceased. Both of them have admitted when cross examined, that they did not describe the intensity of light at the crime scene. Also, despite claiming that he was at the video show hut, PW2 did not tell if he had also witnessed one Lugobi Mayunga beating the deceased with a stick on the head until the latter fell down, as stated in the evidence of PW3. If he was present there, he could not fail to unveil such awful act which in my considered opinion supports the evidence of PW1 who ascertained that the deceased died due to traumatic brain injury. Worse still, neither of the said prosecution witnesses told the court how the first accused and one Lugobi Mayunga had worn on that fateful date. Even the evidence of PW5 who is the arresting police officer does not tell if any efforts were taken by him and other police officers to apprehend one Lugobi Mayunga and charge him with the offence of murder based on the recorded witness statements including those of PW2 and PW3. Again, apart from testifying that the deceased was his young brother and that he is the one who identified the deceased's body to PW1, PW4 also narrated 22 that when he was at Kapanga, he was called by one Kanuda who informed him that his young brother (the deceased) had been beaten by the vigilantes. Under normal circumstances, one would have expected that person to be summoned by the prosecution side in order to assist them in proving the charge of murder against the first accused. However, for no apparent reasons, that person was not summoned. I am all aware of the principle of law that there is no number of witnesses required in order to prove a certain fact, as stated under section 143 of the Evidence Act. However, such principle has an exception particularly a witness's evidence is material and he is within reach, unless sufficient reasons for such omission are given. (See: Azizi Abdalla v. R. [1991] TLR 71 and Omari Hussein alias Ludanga and Another vs R, Criminal Appeal No. 547 of 2017. The evidence of PW4 reveal that he was familiar with one Kanuda whom he described as the person who told him about the incident of his young brother's assaults, yet no sufficient reasons were assigned why he was not summoned to testify. Since, that person was not summoned to testify for the prosecution side, this court draws an adverse inference of their evidence against the first accused. 23 Moreover, I have scanned the evidence of PW5, the arresting police officer and found out that in the course of arresting the first accused persons, he neither informed him why he was arrested, nor did he inform him the nature of the offence he was accused for. This supports the first accused's evidence that he did not know his offence until when arraigned in court for the first time. In my view, the omission by PW5 to inform the first accused on the substance and nature of his offence, not only contravenes the provisions of section 23 (1) (2) of the Criminal Procedure Act, Cap 20 R.E. 2022 which enjoins the arresting police officer to inform the suspect of the nature and substance of his offence, but also it leaves a reasonable doubt on the part of the prosecution evidence whether the first person is responsible for killing the deceased unlawfully. All that indicates that the evidence of those prosecution witnesses is doubtful as far as the charge of murder against the first accused is concerned. Besides that, the prosecution Republic relied on the evidence of PW6 who recorded the cautioned of the first accused person and successfully tendered the same as Exhibit P2. According to that witness, the first accused confessed to have committed the offence of murder. It is on record that when that document was sought to be tendered in evidence, the said accused did not object such prayer. However, during 24 defence hearing, the first accused retracted that cautioned statement by alleging that he was beaten and forced to confess that he is a vigilante and the one who murdered the deceased person. It is a trite law that although there is no rule of law which requires corroboration of a retracted statement, it is a salutary rule of practice to seek corroboration, and a court should direct itself to that effect, and that great caution should be exercised before relying on an uncorroborated retracted statement. (See: Girisomu Bakaye and Others v. Uganda [1965] E.A. 621 at p. 622, Tuwamoi vs. Uganda [1967] E.A at page 91, Emmanuel Mwanandenje and 2 Others v. Republic [2014] T.L.R. H.C. 221 at page 222 and Republic vs. Daniel Ndababonye, Criminal sessions No. 13 of 2017(HCT at Bukoba, unreported). In Tuwamoi v. Uganda (supra) it was held that: "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 corroboration 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.” In this case, the only prosecution evidence which by a quick look, appears to have implicated the first accused person regarding his alleged confession, is that of PW6 who also tendered the said accused's cautioned statement 25 (Exhibit P2). I have carefully examined the evidence of that witness and found that in his testimony he just narrated that after cautioning the first accused, the latter confessed to have committed the offence. However, he did not tell who the said accused confessed to have murdered, when and how he did such awful act. He also did not tell the court if the said accused confessed to him that he murdered the deceased person together with his fellow vigilantes. In my view, such kind of evidence from PW2 cannot be said to have corroborated the alleged first accused's confession. In the circumstance, the crucial question to be determined by this court is whether what is contained in the cautioned statement of the first accused is nothing but true. As indicated above, in order to rely on uncorroborated confession in grounding conviction, the trial court has to find out whether the alleged confession is true. Among the indicators to be used in determining the truthfulness of the confessional statement, include whether as part of the prosecution case, the statement is coherent and consistent with the evidence of other prosecution witnesses and whether the same is plausible. (See: Shaban Daudi v. Republic, Criminal Appeal No. 28 of 2001 (unreported). In my examination of the cautioned statement of the first accused, I have observed a number of infractions. The statement shows that in punishing the 26 deceased for his act of not participating in the process of searching for the lost cattle, the first accused and other vigilantes beat him with strokes on his buttocks, but according to the evidence of PW1 who ascertained the cause of deceased death and, PW3 who testified to have witnessed one Lugobi Mayunga assaulting the deceased with a stick on his head until he fell down, it appears that the deceased died due to traumatic brain injury. Nevertheless, even assuming that one Lugobi Mayunga was the one who inflicted a single blow on deceased's head by using a stick thus causing the latter to fell down, one would have expected that person to be arrested and jointly charged with the first accused and others who punished the deceased. And, if that could be done, the statement of the accused person could also show that apart from being beaten, the deceased was assaulted by one Lugobi Mayunga to the extent of falling down and fainting. In the absence of such incriminating evidence in the cautioned statement under scrutiny, I find that what is contained in that statement is hard to be believed. And, in addition to the said evidence, there is Exhibit P1, a Post mortem examination report, which does not show if the deceased had any bruises or flesh scurs to indicate that he died due to beatings inflicted on his buttocks. Secondly, regarding number of strokes inflicted on the deceased's buttocks, the alleged cautioned statement reveals that only ten were inflicted on the 27 deceased's body, but in his evidence, PW2 claimed that it was fifteen strokes which were inflicted on deceased's buttocks. Also, the evidence of PW6 tells nothing whether the first accused also told him that he inflicted two strokes on deceased's buttocks as it appears in the said cautioned statement, which in my considered strong opinion, lowers down the credibility of those prosecution witnesses. Thirdly, I have observed that the said cautioned statement is not coherent and consistent with the evidence of PW3 whose evidence shows that she witnessed one Lugobi Mayunga assaulting the deceased with a stick on his head to the extent of falling down, for its contents are silent as to whether before being beaten, the deceased was assaulted by that person. Fourthly, the contents of Exhibit P2 reveals that in making his statement before PW6, the first accused uttered the following words: "...aaadyee sana nilipata taarifa kwamba kjana huyo alifariki akiwa anaendelea na matibabu na sababu ikaelezwa eti ni kutokana na kuchapwa fimbo... "[Emphaiis supplied] Looking at the above excerpt, it is apparent that the alleged cautioned statement does not show expressly that in the course of making his cautioned statement before PW6, the first accused confessed to have murdered the deceased person and/or acknowledge the deceased died due to beatings 28 inflicted by him and his fellow vigilantes which in my view makes that statement not to be plausible. Thus, based on the foregoing reasons, I am of the conclusive findings that since the confession statement contained in the cautioned statement of the first accused is neither coherent nor consistent with the evidence of other prosecution witnesses and it is not plausible, the same cannot safely be said to be true. Hence, I accord no weight on that statement. Thus, based on the reasons I have endeavored to assign above, I am not convinced that there is even iota of evidence from the prosecution side to prove beyond any reasonable doubt that it is the first accused who caused the unlawful death of the deceased person. The last ingredient which ought to be tested in establishing an offence or murder, had to be whether the accused was actuated by malice aforethought when he caused the deceased death. However, since I have found that the first accused is not responsible for unlawfully causing the death of the deceased person, I do not see any need and/or sufficient reason, I may put it that way, to delve into determining that issue. In the premise, I find and hold that the prosecution Republic in this case has not passed the test of proving on the required standard, the offence of murder contrary to section 196 and 197 of the Penal of the Penal Code 29 against the first person who has throughout his defence, denied to have participated in the commission of that offence. Hence, I am constrained to find him not guilty of that offence and acquit him. He should therefore, be released forthwith unless otherwise held for some lawful cause. It is so ordered. A.A. MRISHA JUDGE 28.03.2025 DATED at SUMBAWANGA thi 2025. HA 03.2025 Right of appeal is d fully explained. A.A. MRISHA JUDGE 28.03.2025 30