republic vs makoye so nyaga masalu another 2022 tzhc 15710 30 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL SESSION CASE NO. 89/2020 . THE REPUBLIC VERSUS MAKOYE S/O NYAGA @ MASALU MASUNGA S/O MAGESE @ MWAMI JUDGEMENT ~h & 3(Jh November, 2022 NDUNGURU, J: The accused person, Makoye sk: Nyaga @ Masalu and Masunga slo Magese @ Mwami (herein referred as accused persons) stand charged with the offence of murder contrary to Section 196 and 197 of the Penal Code (Cap 16 RE 2002). It is alleged by prosecution that on 29th August 2019, at Nsanzaguma village within Bariadi District in Simiyu Region the accused persons did murder one Kwandu d/o Lunzemo. Briefly, the prosecution facts giving rise to this trial is as follows: On 3pt day of August 2019 in the evening when deceased on Kwandu d/o Lunzemo was found dead at the farms while her body was separated with the head, meaning the head was chopped off. The prosecution facts during preliminary hearing provides that on 29/08/2019 prior to her death, the deceased was taken by two accused persons going at Nsanzaguma 1 AMCOS for the purpose of collecting money. Later, on the mentioned date, the deceased was found dead. That the accused persons were the last persons to be seen with the while alive. That after discovery of the dead body, investigation commenced. That included tracing the accused persons who were said to have bee seen with the deceased immediately before she encountered ani malic death. Upon arrest the accused persons denied taking part in the murder. During plea taking the accused pleaded not guilty to the offence. Preliminary hearing was conducted. The accused persons admitted their names and arrest. The rest of all the facts were disputed. When the case was called for hearing Ms. Rehema Sakafu assisted by Ms. Safi Kashindi Aman, the learned State Attorneys appeared for Republic while the accused persons enjoyed the service of Mr. Frank Samwel learned counsel. In proving the charge laid to the accused persons, prosecution paraded six (6) witnesses and tendered the statement of the witness who was not available to testify in terms of Section 34B of the Evidence Act (Cap 6 RE 2022), further tendered one documentary exhibit (Post Mortem Report). On the other hand, the accused persons gave evidence on their own behalf. They did not produce any exhibit. 2 Maduhu Sweke testified as PWl. His testimony was to the effect that he is living at Nsanzagumavillage. That on 29/08/2019 at 12:00 noon he was at Nsanzagumacentre at the office of AMCOSwaiting for payment for the cotton supplied to AMCOS.The witness said there were many people at the place as it was the payment date. As it took long time awaiting for payment, the people got disappointed. The people started dispersing, leaving the place in ingroups. Among the people he remembered were Gilya and others who were from Sang'udi hamlet (kitongoji), he named Kwandu Lunzemo Kayuda and Makoye Nyaga. He said as the people left the place in groups, he saw Kwandu Lunzemo, (deceased) leaving with other three including Kayuda and Makoye. He said they were in "msafara" (group). PW1 went on telling the court on 31/8/2019 while at about OSpm while at Nsanzaguma heard an alarm popularly known as "mwano" signifying abnormal event, he went to the direction where "mwano" was heard at the farm of one Bayi Malimi, where they found a human body. That the body had the head chopped off. PW1 told the court that the matter was reported to the police who arrived at the scene. He went on testifying that, they started going around looking for the head. He said the head was found thrown in another farm. He said 3 the head being discovered it was revealed the body being of Kwandu Lunzemo. The witness said the medical officer conducted medical examination while the police recorded statements of some people including the chairperson. It was his further testimony that while awaiting for money at AMCOS the people were in groups though not very far from each other. That he was at the left side almost (10) ten paces from the group belonged to Makoye. PW1 identified Makoye (pt accused on the dock). While telling that Kayuda was not present in court. In cross examination, PW1 told the court that on date 29/08/2019 there were many people as they came from different hamlets (vitongoji) including Mwinyi, Mwasimuka, and Sang'udi as it was a payment date. He said it was difficult for him to know the number of people who were there. That when leaving, the people dispersed in different directions. Almost six directions. That he saw Kwandu oto Lunzemo. He did not go to the direction Kwandu was heading. He did not know the number of the people headed to one direction with Kwandu as the people were in groups. He didn't know the names of other people who were in one way with Kwandu. PW1 told the court that he saw Makoye as they had gathered at the AMCOS from 09:00am (in the morning) to noon. He said Makoye, Kwandu and Kayuda were neighbours. That is why they left together. 4 PW2 was Emmanuel Kaliwa. His testimony was to the effect that he is living at Nsanzaguma. He is a Village Chairperson at the same time a hamlet chairperson. He said in 2019 he was a chairperson of Mwinyi hamlet. It was his further testimony that on 31/08/2019 at about 05:00 pm he was at his home. While at home he heard an alarm (mwano). He said he collected his neighbours so that they could attend the alarm. He went on saying he followed where "mwano" was heard. He was with Nyobi, Mataba Sayi and Silye Wembe. He said at the farm owned by one Bayi Malimi they found a human dead body covered with clothes. He said when the body uncovered, it was noted that the head was chopped off and was missing. He said it was a female body but the fact that the head was missing they could not identify whose body was. PW2 went on testifying that they dispersed in different directions looking for the head. The head was found thrown in the farm of Ngulyati Makolesi. It was taken to the place where the body was. That having discovered the head the body was identified being of one Kwandu d/o Lunzemo. The witness said Lukaranga Ngakayu, the son of deceased identified the body being his mother one Kwandu d/o Lunzemo. The witness testified further that; the son of the deceased was asked when his mother left home. PW2 said Lukaranga said his mother had left on 5 29/08/2018 with Yuda and Makoye Nyaga. He went on telling the court that while still at the scene a woman called Nhumbi Nkwila said she met the deceased with Yuda and Makoye. He said after investigation the dead body was handed to the relatives for burial activities. The witness identified Makoye Nyaga, the pt accused by pointing at him. He told the court that he does not know Yonda. When cross examined, PW2 told the court that the body was found in the farm of one Bayi Malimi. The owner of the farm was not present at the scene. He did not know who revealed the body. The head was found in the farm of one Ngulyati. He did not know the existed relationship between Ngulyati and the deceased. He did not witness deceased being killed. The contents of the statement he recorded is what he testified in court. PW2 told the court that Kayuda was named by deceased's son. Makoye was named at the scene. He did not go to the AMCOS. Lukaranga Ngakayu testified as PW3. His testimony was that, he is living at Nsanzaguma. He was living with his mother and two wives. He went on saying on 29/08/2019 Yuda, Makoye and Masunga Magesa were going to collect their payment at the AMCOS. He said, they passed at, and took the deceased along with them to AMCOS. He said she (deceased) 6 never returned home on the date. PW3 told the court, he did not return as at the village centre, they have relatives thus he thought that the deceased has decided to have a rest at her relatives. The witness testified further that the next date, he went to the village centre where payment was said to be done. As he asked the people whom he met, he was told that the deceased was there the on the payment date but had left with Yuda and Makoye. PW3 went on testifying to the effect that on 31/08/2019 at about 06:00pm, he was informed that his mother was found at farms of Ngulyati dead. He said he hired a motorcycle and rushed to the scene and found his mother's dead body. He said he identified the body being his mother. That the head was chopped off. He said the body had swollen. PW3 said Makoye and Kayuda were living at Mwandege area within Nsanzaguma village. PW3 identified Makoye in the dock. He said Kayuda was not present in court. In cross examination, PW3told the court that the deceased went to AMCOS to collect her payment on 29/08/2019. He said, when the deceased left home he was present. He left for grazing at 08:00am after the deceased had left. That he offered his statement to police in relation to the deceased death. That he recorded his statement on 31/08/2019 7 but went again to police. He said when the decease left SALU his wife was also present. The witness told the court further that, the deceased reached Nsanzaguma on the date. She arrived at Nsanzaguma at about 08 am. He did not know the time the deceased left the AMCOS when going back home. That one Gumba met with the deceased at Nsanzaguma where she went to collect the money. Further that on 30/08/2019 in the process of tracing the deceased he went to his uncle at Nsanzaguma village centre where payment was done and asked his uncle on the whereabout of the deceased, that he was told that she had left to Mpandagila but his uncle was just guessing. PW3 told the court that he did not know the people who left with the deceased when returning home. PW4 was James Joseph Mvanga. His evidence was that he is a medical officer. He is working at Bariadi District. In 2019 he was working at Bariadi town council hospital. Currently is working at Simiyu Regional Hospital. He has a long time experience working as medical officer. PW4 told the court that on 31/08/2019 at about 19:00 hours, him with the police officers went to Nsanzaguma village as he was required to conduct post mortem examination. PW4 told the court. That at the scene (at the farm) met many people. There was a female dead body. That the body was covered. When uncovered, the body's head was chopped off. 8 The head was separated from the body. The witness said, the body was identified being Kwandu oto Lunzemo. PW4 told the court that following his examination, he revealed that the cause of death was due to excessive blood loss. The witness tendered the Post Mortem Report as exhibit (Exhibit Pi). PW4 went further saying according to his examination, the deceased death occurred within 45 hours. That the body had started swelling, the condition which always happens within 45 hours from the time death happened. In cross examination, PW4 told the court that when conducted examination he was a qualified doctor. He did not know who murdered the deceased. The dead body was at the farm. He did not know the owner of the farm. He said he did not know if there was a path nearby. The police officer No G 3653 Detective Coplo Ismail, testified as PW5. His testimony was to the effect that, he is working at Nkololo police station located at Bariadi District. In 2019 he was at a rank of constable. Correctly he is at a rank of Coplo. His testimony was to the effect that on 31/08/2019 at about 05:00pm he with other police officers went to Nsanzaguma at Mwinyi hamlet following information of murder event. He said at the scene they met a female body missing the head as it was 9 chopped off. The body was at the farmland (mashambani). PW5 went on saying at the scene along with the people who were gathered started going around looking for the head. He said the head was found at about 300 metres from where the body was. That the head being discovered the body was then identified being one Kwandu d/o Lunzemo of Nsanzaguma. PW5 went on testifying that at the scene, the people suspected Kayuda, Masunga Mageseand Makoye. The three were not present at the scene. The witness said after post mortem examination, the body was handed to the reiative for burial process. He further said he did not know the suspects. In cross examination PW5 told the court that he did not know the accused persons. That at the scene there were many people. He is the one who carried the head. That he did not mention the person who discovered the head. PW6 was Assistant Inspector Benson. His testimony was that in 2019 he was working at Bariadi police as investigator. He said on 31/08/2019 at about 06:00pm he was at Bariadi Police Station. That following murder event happened at Nsanzaguma village at Mwinyi hamlet, he along with OC CID and other police officers went to the scene. 10 PW6 told the court that at the scene they found the female dead body which was identified being Kwandu d/o Lunzemo. That the head was chopped off. PW6 told the court that at the scene he was assigned to record the statement of Nhumbi d/o Nkwila and Maduhu Sweke. That the witnesses he recorded the statement told him that Makoye, Kayunda and Masunga Magese are the ones who killed the deceased. PW6 told the court that Nhumbi Nkwila told him that he met the deceased with Makoye, Kayuda and Masunga Magese. He said further, that he started looking for them but they were not present at the scene. PW6 went on telling the court that before recording the statement he warned Nhumbi to tell the truth and that if revealed that she was lying would be prosecuted for perjury. That having recorded, he read it to her who signed it. PW6 said he then made declaration that he has faithfully recorded it. It is PW6 who tendered the statement of Nhumbi Nkwila as it was satisfied that she could not be procured. PW6 went on telling the court that on 02/09/2019 he was assigned to investigate the case. He said Masunga Magese was arrested by the villagers on 11/09/2019 at Nsanzagumawhile Makoye Nyaga was at rested on 13/09/2019 at Mwakilalo hamlet. PW6 told the court that in his 11 investigation he was satisfied that the accused person including Kayunda who is not present were the ones who killed the deceased because they were the last persons seen with the deceased. In cross examination PW6 told the court that Kwandu died 45 hours before the body was discovered. Nobody told him to have seen the deceased being killed. He said Lukaranga (PW3) and his wife told him that on 29/08/2019 at about 10:00am Makoye Nyaga, Kayuda and Masunga Magese left along with the deceased to Nsanzaguma to AMCOS to receive payment. To his investigation, the distance from the home of deceased to Nsanzaguma AMCOS is a one hour walking distance. If the deceased left at 10:00 she was expected to be there at 11:00am. That in her statement Nhumbi said to had seen deceased with the accused going to AMCOS at 06:30pm (evening). PW6 said Lukaranga (PW3) told him that information about time and with whom the deceased left with he got from his wife. But Lukaranga did not tell him where he was at 10:00am when the decease and the accused left to AMCOS. That the talk/convensation between Nhumbi, the deceased and accused when they met took about 10 (ten minutes). 12 PW6 told the court that he did not interrogate Bayi Malimi, the owner of the farm where the body was found. Bayi Malimi was not present at the scene. In re-examination, PW6 told the court that Nhumbi d/o Nkwila told him that she met the deceased with the accused persons at the farm of Bayi Malimi. In defence, the accused persons reiterated their plea of not guilty entered earlier. DWl was Makoye Nyaga. His evidence was that he was arrested for being suspected to have killed Kwandu Lunzemo. He said his arrest was a result of hatred between him and the village chairman (PW2). He said that his brother had taken the daughter of the village chairman (PW2). The chairman forcefully, took the cattle from his brother as dowry DW1 told the court that on 29/08/2019 he was at Mwakilalo village. That he got informed that Kwandu d/o Lunzemo has been murdered. That before he shifted to Mwakilalo village he was living at Nsanzaguma with his brother in law. But later as his brother in law died, he then shifted to Mwakilalo village on July 2019. That he was arrested at 01:00pm on September. That he has not committed the alleged offence. DWl prayed the court to left him free. 13 When cross examined, OWl told the court that he lived at Nsanzaguma but later shifted to Mwakilalo. That Maduhu Sweke knows him thus cannot misidentify him. He never knew Nhumbi Nkwila. On 29/08/2019 he was at Mwakilalo village at the home of Mwaighoko Gweisheni. He was arrested at Mwakilalo by militiamen. When re- examined, OWl told the court that he could not call Mwaighoko to testify because when he was arrested did not know his fault and was not told where he was sent. He is not cultivating cotton. OW2 is Masunga Magese. His testimony was to the effect that, his arrested was associated with the murder of Kwandu d/o Lunzemo. But he does not know who killed her. He further said on 29/08/2019 he was at his home the whole day. That on 30/08/2019 he got informed that Kwandu Lunzemo has been killed. That it was Lukaranga (PW3) who informed him on the death. That himself with Lukaranga (the son of the deceased) went to the home of the deceased. Others went to the scene to trace the body. That him with others remained at home of the deceased awaiting for the dead body to be brought. The witness said he attended the night at the funeral. The deceased was buried the next date. OW2 went further saying he never went to AMCOSon 29/08/2019. He does not know why Lukaranga (PW3) said he (OW2) went to 14 Nsanzaguma along with the deceased. He said he was arrested on 11/09/2019. That he had misunderstanding with the chairman because one time he denied to participate in village development activities then, the chairman threatened him saying he could see what was going to happen to him. He did not know one Nhumbi Nkwila. When cross examined DW2 told the court that, it was Lukaranga (PW3) who informed him on the death. At the home of the deceased he was with others. That he later went to the scene. That on 29/08/2019 he was at his home all the time. He did not have any grudge with Lukaranga (PW3). That on 31/08/2019 he went to the funeral. That was the end of the defence case. The above being the prosecution and defence case, the ball now is left to the court to determine whether the charge laid against the accused persons has been proved to the standard set by the law in criminal cases. To arrive to the above main issue, the following issues are the roadmap to arrive at: (i) Whether the person one Kwandu d/o Lunzemo alleged to have died is actually dead; if yes (ii) Whether the death was of unnatural causes, if in affirmative, (iii) Whether it is the accused persons; Makoye sio Nyaga @ Salu and Masunga s/o Magese @ Mwami are responsible persons 15 for the death of Kwandu dlo Lunzemo who is subject to this trial, if the answer is in affirmative. (iv) Whether their action was actuated with malice aforethought. For the purpose of landing to the destination, I will resolve the above raised issues in the light of the evidence available in the record. As to whether the person one Kwandu dlo Lunzemo is actually dead; the prosecution evidence is silent on who revealed the dead body at the scene; then raised alarm to call the people. But that should not detain me. It is evident from the evidence of PW2, the village chairman who attended the alarm and went to the scene. He told the court that at the scene he met the female dead body covered with clothes, When uncovered, the body had no head. It was chopped off. That the head was found at different place. That following discovery of the head, it came to be known the body being Kwandu dlo Lunzemo. PW3, the son of the deceased. The substance of his evidence is that he also attended the scene and saw the dead body with the head being chopped off. It is when the head was found, he identified the body being Kwandu eto Lunzemo, his mother. The same version is contained in the statement of Nhumbi dlo Nkwila; who also visited the seen and saw the body. In her statement, she said it is after the head 16 had been discovered, then identified the body being Kwandu dlo Lunzemo. PW4, is the medical officer who conducted post mortem examination. He told the court that at the scene he met the dead body covered. When uncovered found the head was chopped off. The body was of an adult woman who was identified being Kwandu oto Lunzemo. That in his investigation the cause of death was due to excessive blood loss. PW5 and PW6 are the police officers who visited the scene. The version of their evidence does not vary with the other witnesses discussed above, that the body was found chopped off the head. When the head was discovered the body was identified being Kwandu dlo Lunzemo. The above being the substance of the prosecution evidence in the absence of rival disposition from the defence, I find that the issue No (i) is in affirmative that the said Kwandu dlo Lunzemo is actually dead. Associated with the death, is whether the death was unnatural. The evidence available is that the deceased body was found missing the head. That means the head was chopped off. It is further an uncontroverted evidence that the head was found deserted at another farm different from where the body was found lying. 17 Indeed, the post mortem Examination Report (Exhibit "PI") indicates the cause of death was due to severe bleeding. The head was separated with the Tosso, Esophagus separated. The finding are consistent with the testimony of PW2, PW3, PW5 and PW6. Taking into account those findings, it is common that the deceased did not die due to any malaise except excessive bleeding due cut wounds as indicated in Exhibit "Pi". The fact that the defence is not at variance with the above findings, I am again of the conclusion that Kwandu cto Lunzemo is actually dead. Her death was not natural she encountered a violent and ani malic death. The most pertinent and contentious are issues number (iii) and (iv). Starting with the issue number (iii) that is whether or not it was the accused persons Makoye slo Nyaga @ Masalu and Masunga Magese @ Mwami who are responsible for the death of Kwandu dlo Lunzemo who is the subject in this trial. In tandem with it is, if it is held affirmative, whether their action was actuated with malice aforethought. At the outset, I wish to make it clear that, in the light of the evidence on record, no prosecution witness has testified to have witnessed the deceased being killed. In other words, to have seen the accused persons murdering the deceased. That being the position, the evidence at hand is 18 entirely circumstantial. The question is whether the court can ground conviction based solely on circumstantial evidence. In the case of Augustino Lodaru V. Republic [2014] TLR 45 (CAT) the court held: ''it is settled law that a court of law may ground a conviction based solely on circumstantial evidence. This is so where the said evidence irresistably led to the inference that it was the Appellant and nobody else who committed the offence. Such evidence must also, be incapable of more that one interpretation and the chain linking such evidence must be unbroken" See also Sadick Ally Mhindi Vs. The DDP, Criminal Appeal No. 207 of 2009 (CAT) (unreported). See Sarkar on Evidence, Fifteenth Edilion, Reprit 2004 at page 66 to 68. In dealing with circumstantial evidence, the Supreme Court of India in Balwinder Singh V. State of Punjab, 1996 AIR 607 had this to say: ''In a case based on circumstantial evidence the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations. however strong they maybe to take place of proot" See also Ally Bakari and Pili Bakari V. Republic (1992) TLR 10. 19 Again, it is trite that, in a case where evidence is circumstantial, where a series of circumstances are dependent on one integrated whole should not be considered separately, otherwise the concept of proof by circumstantial evidence would be defeated. This position was well articulated in the case of Said Bakari V. Republic, Criminal Appeal No. 422 of 2013 CAT (unreported) where the court held: '' .In determining a case commented on circumstantial evidence, the proper approach by the court and appellate court is to critically consider and weigh all the circumstances established by evidence in their totality and not to dissect and consider it piecemeal or in cubicles of evidence or circumstance"( emphasis added). Being conversant with the law regarding to circumstantial evidence, my duty is now to subject the evidence available to the test as elucidate in the case of Augustino Lodaru (supra) in the light of the above cited authorities. The prosecution case is centered on the evidence of PW1, PW3 and the statement of Nhumbi Nkwila which was tendered under section 34 B of the Evidence Act (Cap 6 R.E 2022). The substance of their evidence 20 establishes the "doctrine of the last person seen with the deceased alive". The stance of the doctrine is that where an accused is alleged to have been the last person to be seen with the deceased, in the absence of plausible circumstances leading to the death is presumed to be the killer of that deceased. There is unlimited number of authorities on the doctrine. To mention but few; Mathayo Mwalimu and Another V. The Republic [2009] TLR 271, Richard Matangula V. Republic [1992] TLR 5, Makungire Mtan V.R [1983] TLR 179, Augustino Rodaru (supra) and Misoji Ndebile V. Republic [2015] TLR 517 (all CAT). The version of the evidence of PW3 is that he was living with his mother one Kwandu Lunzemo (the deceased). That on 29/08/2019 the deceased left to Nsanzaguma AMCOS to receive her payment for sale of cotton. That the decease went along with Yuda and Makoye (1st accused). That the deceased never came back on the date. PW3 said the fact that at Nsanzaguma village the deceased had her relative, he thought the deceased had decided to attend the night there. The witness said the next date he went to the village centre at the AMCOS. The people he asked about the deceased told him that, the deceased was there at the AMCOS but left with Yuda and Makoye. That on 31/08/2019 he got information 21 his mother is found dead and went to the scene where he identified the dead body being his mother. The witness did not tell the time the deceased left home. When cross examined, he said the deceased left with Makoye and Yuda at 07:00 am. That Makoye and Yuda arrived at the home place at 06:00am. He said when the deceased left he was there at home. That he left for grazing at 08:00am. That his statement was used to contradict him as per section 154 of the Evidence Act. In his statement he was referred to the sentence where he said that he had gone for grazing and when came back his wife one SALU told him the deceased had left with Makoye and Yuda to AMCOS. The witness admitted the statement is his. But yet insisted that when the deceased left home he was present. That on the material date, the decease arrived at the AMCOS at Nsanzaguma at 08:00am. He said he did not know the time the deceased left at AMCOS going back home. That he went to Nsanzaguma next date to trace the deceased. At Nsanzaguma he was told the deceased had left to Bupandagila. He did not know the people the deceased left with when went back home. Neither he knows the time deceased left at AMCOS. While his statement is that when the deceased left, he was not there he had gone for grazing, that it is SALU his wife who told him that the deceased left with Makoye and Yuda, which he denied, the same contained in the evidence of PW6. He is the investigator who interrogated 22 PW3, and recorded his statement. His testimony is that PW3 told him that it was Salu (his wife) who told him (PW3) that the deceased left with Makoye and Yuda. The version of PW6 tallies with the version contained in the statement of PW3 unfortunately Salu was not called to testify. Looking at the way PW3 was testifying and respond the questions during cross examination, I find the witness is not credible. Though he was trying to impress the court to be truthful. On the other hand, take the evidence of PW3 being credible. His testimony is that the deceased left to Nsanzaguma AMCOS. Further his testimony is that the deceased reached the destination that is at the AMCOS. PW3 told the court that on 30/08/2019 when went to Nsanzaguma looking for the deceased, the people told him that the deceased was present at the AMCOSon the material date. The same is the testimony of PWl. But PW3 did not know the time deceased left the AMCOSand with whom she was along with. If that was their mission (accused) why couldn't them accomplish at that very time when going to AMCOS. It is my position that if the deceased was taken by accused person going to AMCOSand they reached the destination, and the fact that PW3 23 did not know who was with the deceased when going back home, the doctrine cannot apply as there are many questions are left un answered. The second piece of evidence is that of PW1. PW1 is the witness who was at AMCOS office on 29/08/2019 where payment was to be done. His testimony is that the people gathered there from 9:00 am. That the place had many people. He said the people came from various hamlets including Sang'udi and Mwinyi. He said among them were Gilya Kwandu Lunzemo, Kayuda and Makoye. The witness said as the money was not brought, the people got disappointed. They started leaving the place. That he saw Kwandu Lunzemo (deceased) leaving with other three people including Yuda and Makoye. He said the people were in groups while awaiting for money and when leaving were in groups (in his words msafara). When cross examine, DW1 told the court he could not know the number of people who came from Mwinyi hamlet. When leaving the people dispersed almost six different paths/directions. He did not go to the direction which Kwandu (deceased) was going. He said further he could not know the people who passed the way the deceased passed. He did not know the names of the people who were going to the same direction with Kwandu Lunzemo. The people were departing in groups. 24 The evidence of PW1 is very doubtful to establish the doctrine. This is due to the reason that First, at the place CAMeOS) there were many people. The people came from different hamlets like Mwinyi, Mwasimuka and Sang'undi as said he could not know how many people came from Mwinyi hamlet. Secondly, the people were dispersing in different groups in different direction as he said. Third he did not know all the people who were on one way with the deceased as he said each had his own affairs. Fourthly, when the people dispersed, he remained there at the village centre. To my view for the witness to establish the doctrine of the last person seen with the deceased need to go a mile ahead, to establish that there was a certain bond/relationship or companion between them. There must be established that the deceased and the accused had something in common. In the absent of that is like when the people are dispersing from any public gathering such as football stadium, church or mosque. It is very difficult to conclude that someone was in companion with somebody. Again, PW1 was present at the scene on 31/08/2014. But he did not disclose the fact that he saw the deceased being with the accused on 29/08/2019 at AMCOS. Thus, his evidence is not worth of credit. The evidence left here is contained in the statement of Nhumbi d/o Nkwila which was admitted as per section 34 B of TEA. Actually, it is this 25 evidence which linked the 2nd accused one Masunga Magese in this charge. PW1 and PW3 told the court that the deceased was with Makoye Nyaga and Kayuda. Masunga Magese is not named. Likewise, the statement of Nhumbi Nkwila who said to have met with the deceased at the farm of Bayi Malimi with Makoye and Kayuda. But in the statement, she stated that Masunga Magese just passed. He did not stop there. Further the statement states that Nhumbi Nkwila talked with the deceased and Makoye and Kayuda for almost ten (10) minutes. That they told her that they were going to AMCOSto receive payments as the money had been released. That was at 6:30pm hours as she was coming from fetching firewood. The substance contained in the statement cannot be taken wholesome because it has not passed the test of credibility and veracity through cross examination. Now, from the above analysis of the testimony of PW1, PW3 and the contents of the statement of Nhumbi dlo Nkwila, I am satisfied to hold that the evidence does not tally. While PW3 told the court that the deceased left at 07: 00 am going to AMCOS,the statement provides that the deceased was met with the accused at 06:30pm. In his testimony PW3 told the court that it is one hour walking distance from the home of the deceased to AMCOS, how then could them be seen at 18:30 pm 26 (evening) going to AMCOS. Worse still PW1 told the court that the people including the deceased and the accused dispersed at AMCOS at 12:00 noon, how possible can it be that they were seen at 06:30pm on the same date saying going to AMCOS. Such kind of evidence must be worked upon with circumspection. I find inconstancies and discrepancies contained in the testimony of PW1, PW3, and the substance of the statement of Nhumbi Nkwila go to the root of the prosecution case. In this defence DW1 raised a defence of alibi under section 194 of the Criminal Procedure Act, from his evidence, he told the court that he on the alleged event date he living at Mwakilalo and was arrested there. This evidence is corroborated by that of PW6 who told the court that the 1st accused was arrested at Mwakilalo by villagers. While DW2 vehemently denied to have been involved in committing the alleged murder. Further he was at the funeral on 31/08/2019 and the next date when burial activity was done. PW6 being the investigator of the case, who collected exhibits and witnesses statements told the court that he got to know that it was the accused persons who killed the deceased because they were the last persons seen with the deceased while alive. 27 Having discussed at length the pitfalls of the prosecution evidence, I am of the firm view that in the absence of other evidence to connect the accused with the offence, the prosecution case is floating. In fact, there is no any other evidence brought apart from the evidence which was trying to establish the doctrine discussed above. In the premises, I am of the firm view that prosecution has failed to prove that it is Makoye s/o Nyaga @ Masalu and Masunga Magese @ Mwami who murdered the deceased one Kwandu d/o Lunzemo. I hereby acquit the accused persons having found them not guilty for the offence charged. The accused be released forthwith. Order accordingly. DATED at SHINYANGA this 30th day of November, 2022 O.B. Ndun~~1M.L\.... Judge 30/11/2022 COURT: Right of appeal explained. D.B. Ndunguru Judge 30/11/2022 28