Criminal Session 21 2023 of Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) SITTING AT MPANDA CRIMINAL SESSION NO. 21 OF 2023 (Originated from Katavi RM's Court in P.I. No. 25 of2022) REPUBLIC VERSUS JUMA S/o LUCHANGANYA MABULA @SENDAMA..... 1ST ACCUSED EMMANUEL S/o MAKOYE......................................... 2nd ACCUSED JUDGMENT 18th October & 1st November, 2024 MRISHA, J. The duo accused persons herein whom I shall also refer to as the first and second accused persons respectively, were arrested, interrogated, and arraigned before this court for an information of Murder of Masumbuko Luhende henceforth the deceased person, contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2022 (the Penal Code). According to the evidence gathered from the prosecution side, the incident happened on 31.07.2022 in the day light at Masigo Village within Mlele District in Katavi Region. It is alleged that prior to the said 1 incident, the deceased had approached the first accused at Inyonga town in Mlele District and purchased from him a motorcycle with registration number MC 225 DHM make SAN LG for the consideration of Tshs. 2,200,000/=. The agreement was executed before the Village Executive Officer of Inyonga, and witnessed by one Masaya Robert who is the deceased's uncle. On the day of an agreement, the first accused was paid Tshs. 1,700,000/= as part payment, and the parties agreed that the deceased would be given a motorcycle registration card after furnishing the remaining amount of Tshs. 500,000/= to the seller. After some few days, the deceased approached the first accused in order to furnish the final payment, as agreed. This time he was with his lovely wife namely Jesca Benjamin whom he had carried on the same motorcycle bought from the first accused. However, instead of receiving the money and handing over the said registration card to the deceased, as agreed, the first accused told the deceased and his wife that the card was with his uncle who by then was at Masigo Village. So, he pleased him to go with him to Masigo village in order to complete the deal. It appears that the deceased and his wife had no reservation to such proposal. They just believed what the first accused had told them and proceeded with him to Masigo village, but without knowing what the 2 first accused had planned against them in cooperation with the second accused and another person who is not part of this judgment. Upon arriving there, they found the second accused with another person called Donati Kashinje being armed with club and machete. Upon seeing such unusual situation, the deceased tried to jump and run away, but in vain because it is alleged that the first accused chased, arrested and hold him tight. Meanwhile, the second accused and one Donati Kashinje began to assault him on different parts of his body, then they searched him and stole his money before they could take to their heels. The incident was witnessed by the deceased's wife who then rushed to the village office and reported the matter. Thereafter, the village leaders and the vigilante went to the scene of crime being led by the deceased's wife where they searched for the deceased and managed to find his body in the bush already dead, and his neck was tightened on the tree with his belt. The matter was then reported to the Police who shortly arrived at the crime scene with a doctor who conducted the post mortem examination in order to ascertain the cause of deceased death. The police initiated criminal investigation which led to apprehension of the first and second accused persons who were interrogated by different police officers and confessed to have murdered the deceased person. 3 Also, it is alleged that the police conducted the identification parade with the assistance of the deceased's wife who managed to identify the first and second accused persons as among the persons she had seen at the scene of crime. Later the accused persons were arraigned before this court to answer the allegations of murder, but they strongly denied to have committed such offence. When the matter was called on for hearing, the prosecution Republic which was represented by Mr. Calistus Kapinga, learned Senior State Attorney assisted by Ms. Flavia Shio and Kizito Kitandala, also learned State Attorneys, paraded ten (10) prosecution witnesses and tendered a number of documentary and physical exhibits in order to prove the allegations levelled against the first and second accused persons. On their part, the said accused persons upon being found with a case to answer in respect of in information of Murder with which they stand charged before this court, enjoyed the legal services of Mr. Hamad Amour, learned advocate. As indicated above, both accused persons have distanced themselves for the serious allegations that they are the ones who murdered the deceased person on the day in question. In the circumstance, the task of the court is to determine whether the offence of Murder contrary to section 196 and 197 of the Penal Code has been proved by the prosecution Republic on the required standard. 4 The standard required to prove such capital offence is always beyond reasonable doubt and this can be appreciated from the statute and caselaws. For instance, section 3 (2) of the Evidence Act, Cap 6 R.E. 2019 henceforth 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..." From the above provision, it is obvious that to prove existence of a certain fact, the prosecution is enjoined to prove to the trial court beyond any reasonable doubt that such fact actually exists, unless there is any statute or law which provides to the contrary. Likewise, it is a trite law that the burden of proof is always on the prosecution to prove the case against the accused person beyond reasonable doubt. (See - Woolmington v Director of Public Prosecutions (1935) AC 462 and Msafiri Hassan Masimba vs The Republic, Criminal Appeal No. 302 of 2015 (CAT at Iringa, unreported). In the instant case, the fact in issue is the murder of the deceased person Masumbuko Luhende whom the prosecution Republic alleges to have been murdered by the first and second accused persons. 5 Therefore, in determining the main issue above, I will use the standard required to prove an offence of murder, as per the law. The offence of murder is created by section 196 of the Penal Code, and the penalty is that whoever is found guilty of that offence, cannot escape the hook which is to be sentenced to death by hanging, as per section 197 of the Penal Code. Again, section 196 of the Penal Code provides that: “196. Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.” Looking at the above provisions closely, it means that in order to win conviction against the accused person (s) for the offence of Murder, the prosecution must prove existence of the following ingredients cumulatively: - (i) there must be death of a person. (ii) the death must be a result of an unlawful act or by an unlawful omission. (iii) the prosecution's evidence must satisfy, beyond reasonable doubt, that the accused is the one who killed. (iv) the killing must be preceded by a pre-meditated evil intention which is malice aforethought 6 Starting with the first ingredient, the prosecution summoned Jesca Benjamin (PW3), the deceased wife who told the court that she is the one who led the village leaders and vigilante to the crime scene to search for her husband and that, after searching, they found the deceased body laying down, his belt being tightened on the neck whilst the other part of his body was tied up on the tree and there were pieces of tree logs on the back and legs of the deceased body. Her evidence was corroborated by that of PW5 Masaya Robert who testified that he is the deceased's uncle and that he was among those who went to the crime scene with the vigilante and village leaders on 31.07.2022 and found the deceased body at the forest and his belt was tighten on his neck and there were tree logs being placed on the deceased body. PW5 also testified that a medical doctor conducted an autopsy and the police officer and doctor permitted them to take deceased body for funeral process. Another evidence relied by the prosecution side to prove the first ingredient, came from PW9, Dr. Gilish John Lubigisha who told the court that on 31.07.2022 he accompanied the police to the scene of crime and conducted the post mortem examination of the deceased body after the same was identified to him by the deceased's relatives namely Masaya Robert and Lucas Richard. He began by observing examining the 7 deceased's body whereby he observed that the same was bleeding from the mouth and ears, also there were bruises around the deceased's neck. He also observed that there was no movement of deceased's chest and heart beats; his hands and legs were cold. Also, according to PW9, there was no indicator of cut wound or any use of sharp object on the deceased's body. Finally, he concluded that the cause of deceased death was due to traumatic brain injury, hypoxia second strangulation. Such evidence is also corroborated by Exhibit P7 which is the post mortem examination of the deceased body which was tendered by PW9 and admitted by the court without any objection from the defence side. During cross examination, PW3 was not asked about the deceased's body, but PW5 and PW9. In response, PW5 said he did not produce the death certificate before the court and on his part, PW9 stated that he conducted the post mortem and concluded that the cause of death was hypoxia which means failure of oxygen in the brain due to strangulation. Also, during defence hearing, none of the accused persons disputed the fact that the deceased expired on 31.07.2022 at Masigo Village. Having looked at the evidence adduced by PW3, PW5 and PW9 and the one adduced by DW1 and DW2, I have no flicker of doubt that one Masumbuko Luhende, died on 31.07.2022 and his death was unnatural. 8 This is due to the undisputed evidence adduced by PW3, PW5 and PW9 which depicts that the deceased died not only because of being assaulted by blunt objects on his body parts, but also being strangled, thus causing him to bleed and die. Hence, I find the first ingredient of murder to have been proved beyond any reasonable doubts. Coming to the second ingredient which requires that the death must be a result of an unlawful act or by an unlawful omission, the word Unlawful' literally means something which is not permitted. This is due to the negative prefix „un' attached to the word lawful'. Blacks' Law Dictionary, 8th Edition (the Blacks' Law Dictionary) has defined the word „unlawful act' to mean: "Conduct that is not authorized by law” (See: page 1574 of the Blacks' Law Dictionary). Back to the case at hand, the prosecution evidence depicts that the deceased's death was caused not by an accident or some diseases, but by the assaults on his neck and head which caused traumatic brain injury, hypoxia second strangulation. This evidence has never been disputed by the defence side and it indicates clearly that those assaults are the ones which caused deceased's death. It is undeniable fact that no one in our country is permitted to assault or cause bodily injury to another person. Any such act once proved beyond 9 reasonable doubt, becomes a crime sanctioned by the law, and the punishment do vary depending on the nature of the offence. Thus, based on the available prosecution evidence, I am satisfied that the deceased's death was caused by unlawful acts as I have tried to describe them hereinabove. Regarding the third ingredient, the court is expected to find out whether the prosecution's evidence satisfies it beyond any reasonable doubt that the accused persons are the ones who killed the deceased person. I have gone through the evidence of all prosecution witnesses and found that it is only PW3 who is said to have been at the scene of crime and witnessed the incident of killing the deceased person. The rest of the witnesses have demonstrated other roles played by each of them in bringing the allegations against the accused persons into truth. This means therefore, that the prosecution's case depends much on eye witness evidence or in other words, visual identification. In this case, it is important to appreciate the principles relating to such kind of evidence along with other pieces of evidence as the court tries to answer the above sub issue. In the case of Philimon Jumanne Agal @J4 vs The Republic, Criminal Appeal No. 187 of 2015 (CAT at Mwanza, unreported), the 10 Court of Appeal had the following precautious words to say regarding reliability on the eyewitness visual identification evidence: - "...yyewnnsss visual identification evidence is of the weakest character and most unreliable. Though totally relevant and admissible, it should be acted upon cautiously after the court has first satisfied itself that such evidence is watertight and all possibilities of mistaken identity or fabrication have been eliminated.” [Emphasis supplied] Again, in the case of Shamir s/o John v. Republic, Criminal Appeal No. 166 of 2004 (all unreported), the Court of Appeal held, inter alia, that: "Admittedly, identifcation in cases of this nature, where it is categorically disputed, is a very tricky issue. There is no gainsaying that evidence in identification cases can bring about miscarriage of justice.It is now trite law that the courts should closely examine the circumstances in which the identification by each witness was made. The Court has already prescribed in sufficient details the most salient factors to be considered. These may be summarized as follows: How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press 11 of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance?” Having expounded the above principles, I find it crucial to state that the question whether or not the accused was properly identified as a murderer of the deceased person, should also be part of the ingredients which constitute the offence of murder. My position is fortified by the case of Philimon Jumanne Agal @J4 vs The Republic (supra) in which the Court of Appeal stated that: “It is trite that in a murder trial the prosecution must prove the elements of murder, which we take to be common knowledge, as well as the identity of the accused as the murderer. When identity is disputed, as was the case here, the prosecution has a duty to negate any reasonable probability of misidentification. ” Turning to the instant case, PW3 told the court that on the day in question, during morning hours, they met with the first accused, Juma Luchanganya at Inyonga town who told her husband (deceased) that the chairman who had administered the motorcycle sale agreement, was 12 at_Masigo and he urged both of them to go with him there in order for him to hand over the registration card to the deceased. The first accused carried PW3 and the deceased to the said place, but was riding in a very high speed. Upon arrival, the first accused began to call a person whom he named as, „Mjomba' and,he did that for about three times, then PW3 saw two persons emerging from the bush with masks and red scarfs on their heads and each of them was armed with machete and club (mace). That soon thereafter, those two persons began to follow PW3 and the deceased, then started to surround them. Meanwhile, the first accused was holding the deceased, then suddenly, his fellows began to follow her, but she escaped them, then the said men pushed the deceased who fell down; thereafter, the said men lifted a machete and wanted to cut the deceased. On seeing that incident, PW3 run away as she did not want to see them. She went to report the matter to the village leaders of Masigo village. Later, she returned to the crime scene with the said leaders and vigilante to search for the deceased person whereby before finding his body laying down, they saw the deceased's shoes and a jacket with blood stains which PW3 described as belonging to one of the culprits. 13 Another evidence gathered from that prosecution witness, is that after the incident, she was summoned by the Police to participate in the identification parade. She responded the call and managed to identify three suspects including the first accused person. During cross examination, PW3 responded that the deceased person was her husband. They met with the first accused person then they proceeded to the forest located at Masigo village. The two persons had worn masks and red scuffs on their heads. Her husband could not manage to run away. She recorded her statement at the Police Station. When impeached by the defence counsel, the said witness said that the statement she previously made at the crime scene, is the same as the one she made before the court through testimony, but her head was confused on the material date. Her evidence was partly corroborated by PW1, Asp. Chacha Magesa and PW7, Masoud Ramadhan who in their evidence before the court, described her as the sole identifying witness. PW1 was the police officer who conducted identification parade at Inyonga Police Station, and PW7 was one of the twelve persons who participated in the said parade. Also, it is on record that when called upon to identify the accused persons in the dock, PW3 appeared to have identified the first accused by name and physical appearance, save for the second accused whom 14 she just pointed and described as the friend of the first accused, and added that the said accused persons are the ones whom she identified in the identification parade. However, when further cross examined, the said prosecution witness said that the two persons she had seen at the scene of crime, had worn the masks and scuffs; hence, she could only see their eyes. And, on being reexamined, PW3 said she also identified the second accused in the identification parade after the incident. On the day of incident she saw the first accused, Juma Luchanganya at Inyonga when she went to collect a registration card with the deceased person. She added that, also her husband mentioned the name of that accused person to her because they knew each other, and the first accused is the one who sold the motorcycle to the deceased person. That evidence was corroborated by PW5 Lucas Richard, the deceased's uncle who testified to have witnessed the motorcycle sale agreement between the first accused and the deceased person for the consideration of Tshs. 2,200,000/= which was partly paid to the first accused on 22.07.2022 on condition that the remaining amount of Tshs. 500,000/= would be paid by the deceased person in order to be given the motorcycle registration card. 15 PW5 described the said motorcycle registration number to be MC.225 DHM make SAN LG with a red colour. He also tendered the said sale agreement which was admitted as Exhibit P4 after the court had dismissed the objection regarding competence of such prosecution witness to tender that document as exhibit, for want of merit. When cross examined, PW5 said he is not the owner of the said motorcycle, but the registration card bears the name of its owner. He also said that the first accused told them he had no registration card at the time of executing the sale agreement, but he promised to hand it over to them after furnishing the final payment claiming the said card to be somewhere with his uncle. In addition to that, the fact that the first accused person is the one who sold the motor cycle to the deceased person and used it to carry the deceased and his wife to the scene of crime where he fulfilled his evil mission of killing the deceased person, is also echoed by the evidence of PW2, H.1625 D/CPL Rashid, the investigator of the instant case, PW8 G.4308 D/CPL Joram, a police officer who interrogated the first accused person all of which reveal that among the matters admitted by the said accused person, is the fact that he is the one who sold the said motorcycle to the deceased person and, that the real owner of that motorcycle is PW10, Livingstone Elias Mandari. 16 Having examined carefully the evidence of PW3 and the rest of prosecution witnesses as described above, I have observed that PW3 failed to identify the second accused person, even by naming him as one of the two persons she witnessed attacking the deceased person at the crime scene. She failed to do so not only at the crime scene, but also during identification parade conducted by PW1. It should be recalled that according to the evidence of PW3, PW5, PW7 and PW8, the incident of the deceased's death took place during day time. This means that PW3 being the sole eye witness whose evidence reveals that she was not far from where the culprits were assaulting the deceased person thus leading to his death, could no doubt, be in a good position to see the accused persons including the second accused. In her evidence she has claimed that the second accused, is a friend of the first accused and one of the persons whom she identified during the identification parade. However, that evidence leaves a lot to be desired. First, PW3 did not tell the court when she began to know the second accused. Secondly, in testifying how she identified the assailants at the crime scene, she said apart from the first accused who was with her and the deceased on the way to the scene of crime, she could not manage to identify the two persons who attacked the deceased person in 17 cooperation with the first accused for they had worn masks hence, she could not be able to see their faces. This draws a serious doubt whether the second accused, Emmanuel Makoye was one of those persons. Thirdly, PW3 failed to tell the court how the second accused person participated in fulfilling the killing mission at the crime scene. Fourthly, even if it could be claimed that the second accused was among the culprits seen at the scene of crime, yet it would be difficult to convince the court about his complicity in committing the crime of murder. This is because the sole eye witness evidence of PW3 neither tells anything about the time she had the second accused under observation, nor does it tell us if the said witness had ever seen the said accused before, as opposed to the first accused person whom she has proved to have known before the incident and seen him cooperating with other assailants in fulfilling their evil mission of killing the deceased person by holding the deceased and letting the other culprits to beat him up with club and machete. Apart from the above evaluation and reasoning, there is another piece of evidence relied by the prosecution in proving the fact that the first and second accused persons are the ones who unlawfully caused the death of the deceased person. It is all about the confessions alleged to have 18 been made by the said accused persons by way of cautioned statements recorded by PW7 and PW8. The word Confession' is defined under section 3 (1) (a) (b) of the Evidence Act to mean: "31)) "Confsssion means: (a) Words or conduct, or a combination of both words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may be reasonably drawn that the person who said the words or did the act or acts constituting the conduct committed an offence; or (b) A statement which admits in terms either an offence or substantially that a person making the statement has committed an offence..." It is on record that upon been apprehended, the first and second accused confessed to have committed the offence of murder. The second accused was the first to be arrested and told the arresting police officers that he did not commit the offence himself, but cooperated with the first accused. That evidence came from PW7 who also testified to have recorded the cautioned statement of that accused person. Again, the evidence of PW8 shows that he is the one who recorded the cautioned statement of the first accused person and according him, the 19 accused confessed to have committed the offence of murder. Also, since the alleged cautioned statements appear to have been recorded by police officers, it is important to see if they meet the requirements of section 27 (1) (2) (3) of the Evidence Act which provides that: “Admissibility ofconfessions to police officers 27 (1) A confession voluntarily made to a police officer by a person accused ofan offence may be proved as against that person. (2) The onus of proving that any confession made by an accused person was voluntarily made by him shall lie on the prosecution. (3) A confession shall be held to be involuntary if the court believes that it was induced by any threat, promise or other prejudice held out by the police officer to whom it was made or by any member of the Police Force or by any other person in authority” When PW7 and PW8 wanted to tender the cautioned statement of the first and second accused persons, the counsel representing those accused persons objected the same to be admitted in evidence. However, the said objections were overruled by the court for want of merit. Also, it was observed that the objections of the defence counsel based on legal points and not, on the voluntariness of the said statement. 20 Not only that, but also in the course of making their submissions regarding the admissibility of those cautioned statements, the learned advocates for the first and second accused persons did not complain that their clients were either promised or forced to go and make their cautioned statement before PW7 and PW8. For those reasons, I am of the settled view that the cautioned statement of the first and second accused persons were made voluntary before PW7 and PW8. The question which comes to the focus is whether the said cautioned statement contains the true confessional statements. In order to know whether or not what is contained in the statement is true, regard must be had to the rule that since it is part of it is part of the prosecution case, it must be coherent and consistent with the testimony of other prosecution witnesses, and evidence generally. (See: Michael Mgowole & Another vs The Republic, Criminal Appeal No. 205 of 2017 and Shaban Daudi v Republic, Criminal Appeal No. 28 of 2001 (unreported) - especially with regard to the central story (and not in every detail) and the chronology of events. Reverting back to the present case, it is glaring from the prosecution evidence that both accused persons confessed to have participated in killing the deceased person. At this juncture, I find it apposite to 21 examine each of the tendered cautioned statement and see whether what is contained in those statements is true. Starting with the cautioned statement of the first accused which was tendered by PW8, it shows that in making his cautioned statement before that witness, the first accused told it all about his participation in conspiring to kill the deceased person in order to take away his money which was expected to be paid to him in order for him to hand over the motorcycle registration card to the deceased person. The statement shows the first accused conspired with a person called Donati Kashinje and the second accused whom he described as the relative of the former. It also shows that the said agreement was made on 30.06.2022 at Machinjioni area within Inyonga District. It also tells how the first accused participated in fulfilling that evil killing mission with his fellow assailants on 31.06.2022. This is exhibited by part of his cautioned statement in which he was recorded to have said that: "...baada ya muda alikuja akiwa amempakia mwanamke kwenye pikipiki ndipo aliniambia kuwa ni mke wake ndipo niliwaambia kuwa niwapeleke twende huko kadi ilipokuwa niliwapakia Kwenda Kijiji cha MASIGO kule ambako tulikuwa tumekubaliana nitawakuta nilipofika walipokuwa walinisimamisha ndipo bwana MASUMBUKO 22 LUHENDE alishituka na kuruka kwenye pikipiki ndipo bwana EMMANUEL MAKOYE alimpiga na rungu maeneo ya shingoni na bwana SHINJE DONATI alikuwa amempiga na ubapa wa sime na mimi nilivyoshuka kwenye pikipiki nilichukua rungu na kuanza kumpiga alipokuwa ameanguka chini tulianza kumtafuta yule mwanamke lakini hatukuweza kumuona na ndipo nilirudi pale kwenye eneo la tukio na ndipo nilimvua mkanda wake na kumfunga shingoni na kisha kumpiga tena rungu kichwani ndipo tukamfunga kwenye gogo na magogo mengine tukamuwekea mguuni” The above excerpt clearly reveals that the first accused person fulfilled his evil killing mission in cooperation with two persons, including one Kashinje Donati who is at large, and he is the one who played a very big role in causing the death of the deceased person. That piece of evidence is partly corroborated by the eyewitness evidence of PW3, the deceased's wife, which shows that she saw the first accused attacking the deceased person in cooperation with other two persons. Her evidence also depicts that after reporting the matter to the village leaders of Kasigo, PW3 and those leaders returned to the crime scene and found the deceased's body with some tree logs being put on his legs. 23 Not only that, but also the evidence of PW3 shows that the first accused carried her and the deceased person on a motorcycle to the scene of crime which is Masigo village, and that is where the deceased met his death after being attacked. This also indicates that the confession made by the first accused is true. Another part of PW3's evidence which corroborates the cautioned statement of the first accused person, is her narration that before his death, the deceased person bought a motorcycle make SAN LG from the first accused person the fact which is also stated in the first accused's cautioned statement. Also, that evidence is corroborated by the evidence of PW5 who apart from tendering a sale agreement of a motorcycle with registration number MC 225 DHM between the first accused and the deceased, told the court that he witnessed such agreement. That evidence was not counted by the first accused who apart from denying to have either known the deceased person, or operated a boda boda business, failed to bring another evidence to corroborate his denial. Regarding the second accused's cautioned statement, I have examined it and noticed that it contains some irrelevant information which raises a reasonable doubt as to its truthfulness. First, the statement shows that upon reaching at the crime scene, the first accused stopped the 24 motorcycle, but what the first accused stated in his cautioned statement, is that upon arriving there, he was stopped by the second accused and one Donati Kashinje. Also, looking at the cautioned statement of the second accused, it appears that before being attacked with a club and machete, the deceased jumped from the motorcycle and began to run away, thereafter the first accused chased and apprehended him, then the second accused assisted the first accused by beating the deceased with a club. Not only that, but also the second accused's cautioned statement shows that after killing the deceased person, he cooperated with the first accused and one Donati Kashinje to search the deceased's pocket and found him with Tshs. 500,000/= and one hand set which was taken by Donati Kashinje, then they divided the said amount of money among themselves. However, looking at the cautioned statement of the first accused person, nowhere it is written in that document that upon searching the deceased's pocked, the said accused persons and one Donati Kashinje retrieved such amount of money and divided it among themselves. Nor is it stated therein that one Donati Kashinje parted with the handset belonging to the deceased person. 25 Moreover, looking at the first accused's cautioned statement, it shows the said accused told PW8 that after stopping the motorcycle, the second accused hit the deceased on the neck by using a club. That however, is not contained in the cautioned statement of the second accused because his statement shows that he hit the deceased on the head by using a club. The neck and head are different parts of the body. Hence, had it been true that the second accused is the one who assaulted the deceased on the neck, the statement of his co accused would not differ to that extent. In my view, had it been true that the second accused participated in causing the death of the deceased's person, the contents of his cautioned statement would not differ with those of the first accused's cautioned statement. During defence hearing, the first and second accused denied to have known each other and the prosecution failed to dispute that through cross examination. Also, in his defence, the second accused denied to have caused the death of the deceased person or cooperated with any persons, including the first accused. Considering the fact that apart from the evidence of PW7 who recorded his cautioned statement, no other prosecution witness who corroborated his cautioned statement, and the fact that the evidence of PW3 has not passed the test of identifying that accused 26 person at the scene of crime, I am of the settled view that the said accused has managed to raise some reasonable doubts regarding his complicity in causing the deceased's death. All that indicates that what is contained in the cautioned statement of the second accused is not true. I am aware that it was tendered and admitted in evidence. However, it should be noted that admission of a document is one thing, and the weight to be attached on the admitted document is another thing which is very important in the dispensation of justice. Having analyzed the pitfalls in the cautioned statement of the second accused, I am of the considered opinion that exhibit P5 carries little weight and cannot be used to ground conviction against the said accused person, compared to Exhibit P6 which is the first accused's cautioned statement. Thus, due to the foregoing reasons, I am of the settled view that the prosecution has successfully proved beyond any reasonable doubts that the first accused is the one responsible for causing the death of the deceased person, save for the second accused whom, for the reasons assigned above, I find not responsible for the death of that accused person. I therefore, find him not guilty of the offence of murder and acquit him accordingly, unless he is held for some other lawful causes. 27 The last ingredient which constitutes an offence of murder is that the killing must be preceded by a pre-meditated evil intention which is malice aforethought. The discussion about such ingredient will involve the first accused whom the court has found responsible for causing the deceased's death. Section 200 of the Penal Code provides that: “200. Malice aforethought shall be deemed to be established by evidence proving any one or more ofthe following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person..." What can be gleaned from the above provision is that malice aforethought is deemed to be established where it is proved beyond any reasonable doubt that the accused had an intention to cause death of any person and, he knew that his act or omission will probably cause the death of or grievous harm to some person. Again, since it may sometimes be difficult for the offender to disclose his guilt mind to cause death of another person, it is important to consider a number of factors for ascertaining malice aforethought on the part of 28 the accused person dependent on the circumstances of a particular case. The same were outlined in the case of Enock Kipela vs Republic Criminal Appeal No 150 of 1994 (Unreported) in which the Court of Appeal observed that: “Usually, an attacker will not declare his intention to cause death or grievous bodily harm, whether or not he had that intention must be ascertained from various factors, including the type and size of the weapon if any that was used in the attack, the amount of force applied in the assault, the part or parts of the body the blows were directed at or inflicted on, the number of blows, although one may, depend upon the facts of the particular case, be sufficient for this purpose, the kind of injuries inflicted, the attacker's utterances, if any, made before, during or after the killing, and the conduct of the attacker before and after the killing.” The evidence in the case at hand, particularly that of PW8 who recorded the cautioned statement of the first accused, exhibit P7, depicts that the first accused uttered the following words in his cautioned statement: - “...na mimi nilivyoshuka kwenye pikipiki nilichukua rungu na kuanza kumpiga alipokuwa ameaaguka chini tu/ianza kumtafuta yule mwanamke lakini hatukuweza kumuona na 29 ndipo nilirudi pale kwenye eneo la tukio na ndipo nilimvua mkanda wake na kumfunga shingoni na kisha kumpiga tena rungu kichwani ndipo tukamfunga kwenye gogo na magogo mengine tukamuwekea mguuni” [Emphasis is mine] My observation of the above excerpt is that in causing the deceased death, the first accused used a weapon to wit: club to hit the deceased on the head twice and as if that was not enough, he strangled the deceased by using the deceased's belt, tied him up on the tree and put some tree logs on the deceased's body. Now, associating the above confessional statement and the factors outlined in the case Enock Kipela vs Republic (supra), I am of the considered opinion that since the type of weapon used was a lethal one, the first accused inflicted more than one blow on deceased's head and used a great force in inflicting those blows on the deceased head, and also by considering the fact that the said accused strangled the deceased to death by using a belt, there is no doubt that he had the intention to cause the violent death of the deceased person. In the premise, I answer the last question in the affirmative that the first accused was actuated by malice aforethought when he caused the deceased death. 30 Nevertheless, before I enter my final verdict, I wish to air my comments regarding the first accused's conducts before and after commission of that offence. Looking at the evidence of PW10 which is corroborated by the one adduced by PW1, PW2, PW3 and PW5, it is obvious that the first accused outwitted the deceased that the motorcycle (Exhibit P3) he wanted to sell to him was his own, which is not true. The unchallenged evidence of PW10 and which was also corroborated by the evidence of PW1, PW2 PW3 and PW5 depicts that the said motorcycle was the property of PW10 who had just hired the first accused to operate a bodaboda business subject to the agreement entered between the two. Therefore, it is my strong opinion that what the first accused did to the innocent PW10 who is actually the lawful owner of that motorcycle, was not good at all. PW10 could expect to generate more income from that motorcycle, but his economic strategic plan was ended by the first accused unfairly. Under such circumstances, I think it will not be just to deny PW10 of his right to own that motorcycle for a mere fact that it was used in facilitating the commission of the charged offence, because the said witness was neither a party to the common intention of killing the deceased formulated by the first accused and his fellow assailants, nor was he part of the perpetrators of that crime. 31 The foregoing being said and done, I find and hold that the prosecution side in this case has satisfied the court beyond any reasonable doubts that the first accused person) together with other assailants who are still at large) committed the offence of Murder contrary to section 196 and 197 of the Penal Code. Hence, I find the said accused guilty of that offence and convict him of that offence, as charged. A.A. MRISHA JUDGE 01.11.2024 SENTENCE 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 have considered all the aggravating and mitigating factors from both sides. I therefore, sentence the accused JUMA S/O LUCHANGANYA MABULA @SENDAM to suffer death by hanging, as provided under section 197 of the Penal Code Cap 16 R.E. 2022. A.A. MRISHA JUDGE 01.11.2024 ORDER 32 Since it has been found that PW10, the owner of the motor cycle make SAN LG with registration No. MC 225 DHM, neither participated in the commission of the charged offence, nor counselled the first accused to used it in facilitating the commission of that offence, I order that the said exhibit be restored to PW10 who is the owner thereof, and the police are directed to communicated and inform such owner to go and collect it at his own costs. It is so ordered A.A. MRISHA JUDGE 01.11.2024 Right of Appeal is fully explained. A.A. MRISHA JUDGE 01.11.2024 33