the republic vs elija thomas patrice anthony patrick 2023 tzhc 23358 13 december 2023

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT TARIME) ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE No. 163 OF 2022 THE REPUBLIC v. ELIJA THOMAS PATRICK @ PATRICE ANTHONY PATRICK JUDGMENT 24.11.2023 & 13.12.2023 Mtulya, J.: Mr. Kyaro Steven Matiko @ Roketo (the deceased) was found expired in his shop located at Mjini Kati area within Matongo Ward in Ingwe Division of Tarime District, Mara Region (the crime scene) on 15th July 2020. The deceased was found by his brother-in-law, Mr. Mgaya Ryoba Kisire (PW8), who had noted that the death was unusual and took steps to inform criminal investigation authority of the police at Nyamwaga District Police Station for investigation, arrest of the culprit and arraign the suspect to this court to reply the information of murder contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2019] (the Penal Code). PW8 was summoned by the prosecution to testify in the instant case in order to establish the deceased had actually expired and was buried. During his testimony PW8 had testified that on 15th July 2020 he was cell-phoned by the deceased's mother to go and inspect the deceased's shop as it was noted by the shop's i neighbours that the shop's door was partially locked and it was unusual for the deceased to let the door half-open in morning hours without being witnessed by the neighbours. Following the incident at the deceased's door, PW8 went at the deceased's shop and upon fully opening the shop's door, he found the deceased had already expired in the shop and shop's items were in shamble, the deceased tie-roped in hands and a sweater garment was covering his head to display that the deceased's death was unnatural. PW8 testified further that he informed the police authorities at Nyamwaga who went at the crime scene, drew sketch map, and had taken the deceased's body to Nyamongo Heath Centre for medical examination and found to have died from strangulation and loss of respiration. According to PW8, the deceased was buried on 17th July 2020. In order to establish unnatural death of the deceased had actually occurred, the prosecution had called Dr. Jackson Pius Chacha (PW2) of Tarime District Council to testify on his role to the deceased's body on 15th July 2020. In his testimony, PW2 stated that he was ordered by the police authorities at Nyamwaga to examine and identify the source of death of the deceased on 15th July 2020, and upon examination he found the deceased had wounds in neck and back side of the head near ear which were caused by a rope-tie and blunt object respectively. Regarding the source of death, PW2 testified that the death was caused by 2 hypoxia and head injury. Finally, PW2 had tendered Post-mortem Report of the deceased as Exhibit P.2 to substantiate his evidence. Exhibit P.2 shows that the source of death is hypoxia with head injury and summary report shows that: a body of the deceased with a mark of sting around the neck compressed skull, left side near ear and deviated epiglottis and other signs of loops at both limbs. The external appearance and skull contents summary report on the other hand shows that: a mark of deformed skull near ear, compressed and fracture skull. Following the report of PW2, the police authorities in Nyamwaga District Police Station, Tarime/Rorya Police Region Special Zone, Mwanza and Dar Es Salaam police authorities were on the move in search of the killer of the deceased. All police officers who participated in one way or another in the move and material witnesses in the case were summoned in the case to testify. In Nyamwaga District Police Station, the prosecution called H.717 D/Cpl. Festo (PW1) to come and testify his role on 15th July 2020. According to him, on 15th July 2020, he was summoned by his boss ASP Mnako, who was OC-CID Nyamwaga District Police Station to investigate a murder case which occurred at Mjini Kati within Nyamongo and went at the crime scene accompanied by Ag. OC-CID, CpI. Abel, CpI. Hussein, and CpI, Nicolaus and investigated the scene of the crime and sketched a map of the scene. In order 3 to substantiate his role, PW1 had tendered the sketch map of the crime scene as Exhibit P.l. The citation of CpI. Hussein (PW4) in investigation team by PW1 was important to the prosecution side hence was called to testify his role in the team. In his evidence, PW4 testified to have investigated the murder of the deceased saga and in his investigation, he noted that the accused before his expiry had NMB Bank Automated Teller Machine Card (the ATM Card) in his possession, but the ATM Card could not be traced immediately after the death of the deceased, and that the clue was revealed by the deceased's father. According to PW4, he then made follow-up of the ATM card transactions by involving NMB Bank Nyamongo and Musoma Branches to access the deceased's Bank Statement to learn his transactions. PW4 testified further that in the Bank Statement, he noted the ATM Card was involved in transactions at Sirari ATM Machine on 14th July 2020, NMB Wakala Mwita Mnanka Ohura of Musoma on 15th July 2020, and NMB Bank Musoma Branch on 15th July 2020. PW4 testified that upon noting the accused was dead and transactions were on the move, he prepared a letter to NMB Musoma Branch requesting for CCTV Footages and was given through Flash Disk. According to PW4, upon completion of their part at Nyamwaga, the investigation team had forwarded the case 4 file to RCO's offices for further investigation and initiation of criminal proceedings against the perpetrator of the crime. The further investigation at Tarime/Rorya Regional Criminal Investigation Office was placed before police officer D.7207 D/Sgnt. Mponda (PW15). According to PW15, the murder of the deceased had involved both the Nyamwaga District and Tarime/Rorya Region Police authorities and he got a clue from PW4's investigations that the accused before his expiry had the ATM Card in his possession, but the ATM Card could not be traced immediately after the death of the deceased, and that the clue was revealed by the deceased's father. PW15 testified further that investigation at the RCO's offices also revealed that the deceased's ATM Card was still in use while the deceased had already expired hence the police had communicated with NMB Bank for further investigation. In his testimony PW15 stated that the police were supplied with Bank Statement of the deceased and CCTV Footage of NMB Bank's customers who attended the Bank on 14th and 15th of July 2020 in a Flash Disk Kioxia 32GB, which was forwarded to Forensic Expert Police Officer Richard Buha Minja (PW12) of the Forensic Bureau Department of the Police in Tarime/Rorya Police Region. According to PW15, he saw the accused's picture and morphology and had placed police informers at different parts of Nyamongo and on 19th December 2020, he was informed presence 5 of the accused at Nyamongo area and communicated with Police Officer Commanding of Nyamongo District, Police Officer ASP Francis Mabisi (PW5) to arrest the accused and was accordingly arrested, his residence searched in presence of Village Chairman Solomon Gotora Mang'era (PW6) and brought before Nyamongo Police Station. According to PW15, the accused is named Mr. Elija Thomas Patrick @ Patrice Anthony Patrick (the accused) and correctly identified him in the dock. In his testimony, PW15 testified further that he was involved in searching and seizing items of the accused at the accused's residence in the presence of PW6 and had seized: suruaii kadeti rangi dark b/uu, begi dogo la mgongoni rang! ya kahawia, kofia nyeusi yenye aiama ya NIKE, T-shirt yeneye rangi nyeupe, nyeusi, njano/mchanganyiko. In order to justify his testimony, PW15 had tendered the listed items as Exhibit P.14 collectively and the certificate of seizure as Exhibit P.13 in the case. According to PW15, they seized the items in Exhibit P.14 because they were related to those displayed in the CCTV footages and forwarded the CCTV Footages and other scientific materials to PW12, Mwanza and Dar Es Salaam for forensic examinations and results. In his investigation, PW15 stated further that he noted Mr. Philipo Mwita Mrimi (PW3) had witnessed the accused and deceased having conversations at night hours of 14th July 2020 and 6 on the next morning of 15th July 2020, the deceased was found dead. All persons cited by PW15 were also marshalled to testify in the case. According to PW5, he was participated in arresting the accused on 19th July 2020 after a cell-phone call from PW15 directing him to go to Nyangoto Bus Stand where the accused was spotted by the police informer and rushed to scene and successfully arrested the accused. According to PW5, it was easier to spot and arrest the accused as PW15 had previously sent WhatsApp Photo of the accused to him and used the same in arresting the accused. PW6 on his part had testified that he was born, raised and elected as Hamlet Chairman of Sungusungu area of Mjini Kati Village within Matongo Ward in Ingwe Division of Tarime District Mara Region and on 19th December 2020 had witnessed search by PW15 and other police officers in the accused's house located in his area of jurisdiction and signed Exhibit P.13. PW3 on the other hand had testified to have seen the accused with the deceased's together at night time around 21:00 hours of 14th July 2020 at MM Bar having conversations, but could not identify the species of the discussions. According to PW3, he was about ten (10) meters from the dual persons, but was able to recognise them as the deceased was his neighbour at his garments' shop located at Mjini Kati Village of Tarime District in Mara Region 7 whereas the accused was used to come to his friend the deceased in several occasions in exchange of stories, and the Bar had bulb lights. However, to his surprise, PW3 he found the door of the deceased shop half-closed in the morning hours of 15th July 2020, which is unusual for the deceased. Finally, PW3 testified that he came to learn the deceased had expired and since then he could not trace his friend, the accused at Mjini Kati area of Tarime District. The prosecution also noted NMB Bank PLC (the bank) and its Agent Mwita Mnanka Ohura (the Agent) were involved in the saga of the deceased at one point in time, hence summoned three (3) of its officers and one (1) employee of the Agent to testify on the transactions of the deceased and authenticity of the science in CCTV, Flash Disk and monies transactions. The first officer was Mr. Audax Masaki (PW9), who had testified to have extracted CCTV footages of 15th July 2022 of NMB Bank Musoma Branch from the Data Cabinet within the Server Room of the Branch on 24th August 2020. In the Data Cabinet, according to PW9, he downloaded the images of the events of 15th July 2020 and saved the same in Flash Disk, which finally was handled over to PW15. Regarding to the authenticity and reliability of the data, PW9 testified that the bank is using HK Vision system and in order to access the system a person must have user name and password. Finally, according to PW9, he saved the footages in empty, safe and secure Flash Disk. 8 The second officer from the bank was Ms. Lucy Stephen Sebe (PW10), who testified to be present at Teller Number 2 kiosk of the bank on 15th July 2023 and attended customer named Kyaro Steven Matiko (the deceased) of the account number 33010006216, who withdrew Tanzanian Shillings 1,760,000/=. In order to establish that she attended the deceased on 15th July 2020, PW10 tendered NMB Bank Cash Withdraw Slip (the slip) as Exhibit P.3. The final officer from the bank to testify in the case was Mr. Sospeter Justin Pontian (PW11) and his testimony stated that on 16th December 2020, two (2) police officers namely, Hussein (PW4) and Mponda (PW15) visited his office at Musoma and requested a print out of deceased's account statement indicating transactions of 1st July 2020 to 16th July 2020 and accordingly gave them. According to PW11, the bank has credible and secure Flexcube System where customer's information is stored and that it is not easy to edit the information. On his part, PW11 tendered deceased's account statement displaying transactions between 1st July 2020 and 16th July 2020 as Exhibit P.4, which shows that on 15th July 2020 morning hours Tanzanian Shillings 1,760,000/=, 8,000, 000/= and 2,000,000/= were withdrawn from the deceased's account. Regarding the bank's Agent, Mr. Leonce Deus Malifedha (PW7) was marshalled to explain the transactions of the deceased 9 conducted by the accused at his office on 15th July 2020. In his testimony, PW7 testified that on morning hours of 15th July 2020, the accused appeared and withdrew monies from his POSS machine at Musoma office amounting to Tanzanian Shillings 10,000,000/= at two intervals of 8,000,000/= and 2,000.000/=. Finally, PW7 correctly identified the accused from the dock. The prosecution had also summoned three (3) police officers who participated in forensic sciences of pictures and hand-writings, namely: ASP Richard Buha Minja (PW12), ASP Aristides Eustdius Kasigwa (PW13) and Moses Massawe (PW14). PW12 testified that he photographed the accused by use of Canon 7D Professional Camera made in Japan with zoom lens 18 to 200mm of 18 to 19 megapixels attached with resolution 4 to 18 megabytes and prepared thirty (30) pieces of photographs and preserved them in Digital Versatile Disk (DVD). According to PW12, photographs were stored in DVD by use of Cyber-Power DVD, which cannot be easily tempered as they become read only memory. In his testimony, PW12 stated that the photographs of the accused were necessary to compare with the CCTV images found in the Flash Disk brought by PW15. PW12 testified further that he travelled to Dar Es Salaam on 5th January 2021 for submission of the two materials, by a letter, to PW13 of the Forensic Bureau of the Police Force (the Bureau) for examination and comparison of the photographs and images. After io the examination, comparison of the footage and photographs, and preparation of report, according to PW12, he took the materials from PW13 in Dar ES Salaam for Tarime/Rorya Police Region on 16th February 2021. Regarding what transpired in Dar Es Salaam at the Bureau, PW13 was marshalled in the case to testify. According to PW13, sometimes in January 2021 he was requested by a letter, brought by PW12 from the RCO's office of Tarime/Rorya Police Region, to examine and compare still pictures in the DVD and images in the Flash Disk and accordingly did so. In his testimony, PW13 stated that he used special forensic computers for law enforcers only powered by Amped-Five in Imac Work Station to examine and compare the photographs and footage images. After his examination and comparison of the still photographs and image, according to PW13, he found similarities of a person in still photographs of DVD and images in the Flash Disk, and finally prepared a report on the examination. In order to substantiate his testimony, PW13 prayed and tendered: first, Taarifa ya Uchunguzi wa Picha prepared by Inspector Aristides Eustdius Kasigwa on 15th February 2021 at the Forensic Bureau of the Police Force referenced FB/PH/LAB/08/2021 marked TRR/CID/FB/C.3/Vol.l/91 (Exhibit P.5); second, DVD containing still photographs of the accused (Exhibit P.6); Flash Disk containing images of persons attended the bank on ii 15th July 2020 morning hours (Exhibit P.7); and Taarifa ya Uchunguzi wa Picha from the Forensic Bureau of the Police Force referenced FB/PH/LAB/O8/2021 marked STATION TARIME/RORYA dated 18th February 2021 and 15th February 2021 [Photo Book] (Exhibit P.8), in ending his testimonies, PW13 had displayed and explained the contents in Exhibits P.6 and P.7 via Television Monitor stationed at the open court and correctly identified the accused in the dock. The final forensic expert to be marshalled to testify in the case was PW14 from Mwanza Police Force Forensic Bureau, who had examined and compared handwritings of the accused, deceased and PW10 found in different documents. In his testimony, PW14 stated that on 12th October 2021 he had received intended exhibits in an envelope from PW15 namely: first, the NMB Bank Cash Withdraw Slip of Musoma Branch dated 15th July 2020 with Account Number 33010006216 named Kyaro S. Matiko (Exhibit P.3); second, writing samples of the accused; third, handwriting samples of the accused; handwriting samples of PW10; and NMB official stamp samples, and all the samples were recorded as FB/DOC/LAB/43/2021. In explaining the sciences in his office, PW14 stated that the office contained Special Video Spectoral Comparator (VSC) with special zooming lens to be able to display handwriting behaviours of persons and produce accuracy of the highest level of similarities 12 and distinctions in human handwritings. After his examination, according to the testimony of PW14, he noted that the collected handwriting samples of the accused and PW10 are similar to those found in Exhibit P.3 and that the handwriting sample of the deceased is not similar to those found in Exhibit P.3, in order to substantiate his evidence, PW14 tendered in this court: first, Examination Report prepared under section 205 (1) of the Criminal Procedure Act [Cap. 20 R.E. 2019] attached with photographic enlargement papers of 19 pages marked A, X, Y, J and D referenced MZR/FB/DOC/LAB/43/2021 (Exhibit P.9 collectively); handwriting sample of the deceased (Exhibit P.10); handwriting samples of the accused (Exhibit P.ll); and handwriting samples of PW10 (Exhibit P.12). In the midst of the prosecution case hearing, when PW3 was producing his evidence the defence side had asked PW3 to tender his witness statement recorded at the police station in order to show areas of contradictions between the statement and evidence produced in court on one hand and failure of PW3 to sufficiently describe the accused at MM Bar on the other. The statement of PW3 was tendered as Exhibit D.l and displays the following narrations of PW3, in brief, that: Mimi nimezaiiwa mnamo tarehe 27.12.1997 huko Nyamongo...Mimi nimesoma na eiimu yangu (Certificate of Electric Engineering) - Umeme wa Magari ambapo nimepata eiimu hiyo katika Chuo cha Kirumba Technical 13 Caiiege kilichopo Mkoa wa Mwanza ambapo nimehitimu mwaka 2018. Baada ya kumaliza sikufanikiwa kuajiriwa sehemu yoyote hadi sasa iakini nimejiajiri mwenyewe katika biasbaraa ya kuuza nguo za watoto na mikoba ya wanawake pamoja na vitenge. Katika kufanya biashara zangu nina duka maeneo ya Nyamongo eneo la Mtaa wa MG. Sehemu ambayo ninafanyia biashara zangu. Watu ambao na wao wanafanya biashara jirani na mimi ni DIKI S/O VIOO, ALEX? MAMA ZURFA. Mimi ninamfahamu mtu mmoja ambaye ROKETO kwa majina yake sahihi anaitwa KYARO s/o STIVIN MA TIKO ambaye tangu nimemfahamu takribani mwaka mmoja sasa na kumfahamu kwangu aiikuwa anafanya biashara ya kuuza nguo jirani na mimi katika mtaa huo wa MG. Mimi na marehemu tuiikuwa tunafahamiana sana pamoja na majirani wengine. Katika kufahamiana na marehemu pia niiiweza kumfahamu mtu aitwaye Party ambaye ni ELIJA s/o THOMAS PA TRICK ambaye mara nyingi aiikuwa akija dukani kwa marehemu mara kwa mara na aiikuwa ni rafiki yake wa karibu sana. Dukani kwangu na dukani kwa marehemu umbaii wake ni mdogo kama mita kumi (10), nimemfahamu rafiki yake huyo kwa sababu aiikuwa anakuja mara kwa mara na mimi nimemfahamu kwa majina na sura pia kwa sababu niiikuwa ninamuona mara kwa mara. Pia nimemfahamu Party ELIJA s/o THOMAS PATRICK aiikuwa na ofisi ya kutengeneza masofa ya kukaiia na ofisi yake ipo eneo ia mjini kati standi ya daiadaia Nyamongo jirani na soko ia dhahabu upande wa kuiia kama unaenda Tarime. Nakumbuka mnamo tarehe 14.07.2020 majira ya usiku muda sahihi siukumbuki niiipita eneo ia BAR ya MM katika kupita kwangu niiikuwa na shughuii zangu niiiweza kumwona 14 KYARO s/o STEVIN MA TIKO akiwa amkaa schema moja na rafiki yake aitwaye Party - ELIJA s/o THOMAS PA TRICK wakiwa na maongezi yao iakini mimi sikwenda walipo na sikuweza kufahamu wanazungumza kitu gani. Mimi niiiendeiea na shughuHz zangu ambapo niiiondoka na kwenda nyumbani kupumzika. Tarehe 15.07.2020 majira ya asubuhi mimi niiiondoka nyumbani kuja kwenye biashara zangu kama kav/aida niiipofika kukav/a na dada mmoja aitwaye ZAINABU d/o JUMA ambaye aiikuwa anafanya usafi kwenye duka iao ambaio iipo jirani na duka ia marehemu mimi niiikwenda kusa/imiana naye ndipo nikawasikia wanasema mbona ROKETO hajafungua ieo yupo na mwanamke ndani wakati huo miango uiikuwa umerudishiwa kidogo haujabanwa wote. Ndipo tuiifika kuchunguiia ndani hapo tukaona mazingira ya ndani sio ya kawaida ndani kunaonekana kuna henga za nguo zimeanguka. Sisi baada ya kuona hivyo tukaamua kurudishia miango tukakaa pembenni tukajaribu kumpigia simu ROKETO iakini simu ikawaa haipatikani, baada ya kumkosa tukafanya utaratibu wa kumtafuta ndugu yake na bahari nzuri mda huo huo aiipita shemeji yake aitwaye MGA YA s/o KISIRE akiwa na gari aina ya Cruger ya kijivu hapo mzee mmoja ambaye ni jirani yetu aitwaye mzee CHACHA S/O ? akamsimamisha na akamueiezea ha/i tuiiyoiona baada ya kueiezewa tukio hi/o a/ishuka na kuingia dukani kwa ROKETO na sisi tuiibaki nje. Baada ya muda aiitoka nje akajibu kuwa ROKETO ameuiiwa na yuko ndani. Hapo na sisi tuiiingia ndani na kweii tukamuona ameuiiwa huku akiwa amefungwa na kamba sehemu ya miguuni. Mikononi ambapo mikono iiizungushwa kwa nyuma huku akiwa amefungwa nguo 15 pamoja na kamba. Baada ya hapo walijulishwa askari polisi na walifika dukani kwa marehemu na wakaendelea na taratibu zao. Baada ya kutokea tukio hilo mimi sikuweza kumuona tena rafiki yake na marehemu aitwaye Party-ELIJA s/o THOMAS PATRICK HADI LEO HII. In this statement, the defence side was questioning the credibility and reliability of PW3 on seven (7) areas, namely; first, failure of PW3 to describe the accused; second, failure of PW3 to cite type of garments of the accused; third, PW3 did not say on a distance between the accused and himself; fourth, PW3 did not state the type and intensity of light; fifth, PW3 had declined to say on how long he knew the deceased; and sixth, PW3 failed to indicate which area of MM Bar where the accused and deceased were spotted; and finally, PW3 did not witness the accused killing the deceased. Subsequent to the materials brought by the prosecution side, this court had found the accused to have a case to reply hence he was called to produce necessary materials in his defence. In his testimony, the accused (DW1) stated that he did not murder the accused as the incident of murder had occurred while he was away at Musoma Town for business issues and visited several shops and financial institutions. In his evidence PW3 had produced details of his trip from Nyamongo area to Musoma Town, activities and transactions 16 involved and his return to Nyamongo. According to him, he had left Nyamongo area on 14th July 2020 at morning hours to Musoma for leather garments, cushions of coaches, furniture glue and stapler machine for Sofa Manufacturing at his office located at Nyamongo. In the testimony of DW1, the items could not be found in one shop and in one day as there were various ups and downs in window shopping in search of the indicated stuffs. On the first day of window shopping and buying of the stuffs, according to DW1, he managed to buy all necessary items save for leather garment and was asked by the workers of Deo Shop to wait for the next day, 15th July 2020. Following a failure to return to Nyamongo on 14th July 2020, according to DW2, he went to enjoy his sleep at Galaxy Hotel in Musoma Town until the next morning when he was in the move in search of the materials. DW1 testified further that on 15th July 2020, the materials could not be brought to Musoma town hence he took another sleep at Galaxy Hotel in Musoma town and bought the materials on 16th July 2020 and travelled back Nyamongo area. Concerning his appearance at NMB Bank Musoma Branch on 15th July 2020, DW1 testified that he went for an intention to withdraw monies from his Chap-chap Account Numbered 33010006226, but was informed by a bank teller that the system is down. According to him, the monies in his possession had finished and wanted to withdraw to cover the gap of monies, but it 17 was fortunate that it was covered by customer of the Sofa Set called Mr. Mwita Bega who had wired the monies via Lipa Namba to Deo Shop. Regarding the deceased, DW3 had testified that he was his friend, but did not kill him. In order to substantiate his statement, the accused had displayed several criticisms, namely: first, PW3 did not witness the killing of the deceased; second, the CCTV footage did not show the accused withdrawing monies from the bank; third, PW7 did not identify the accused in the dock; fourth, PW10 testified that he attended the deceased; and that all prosecution witnesses produced fabricated evidences and failed to establish the case. Finally, DW1 stated that he was arrested on 14th December 2020 at his offices in Mjini Kati Nyamongo area and search conducted on 19th December 2020, while he was transferred to several police stations in Tarime District. However, DW1 was questioned by the Republic on multiple questions to shake his credibility and reliability, and specifically on: first, documentary evidence on his trips for and return between Nyamongo and Musoma Town; documentary evidence of his sleep at Galaxy Hotel in Musoma; summoning of Mr. Mwita Bega, workers at Deo Shop or any persons in his movements to and from Musoma to corroborate his evidence; anyone who witnessed him leaving Nyamongo area on 14th July 2020; his attendance at the burial ceremony of the deceased on 17th July 2020 with a bunch of 18 villagers but could not identify any person at the scene; and existence of Lipa Namba in July 2020. After registration of all relevant materials for and against the instant case, the parties were summoned on 30th November 2023 to register final submissions to assist this court in arriving at justice. According to Mr. Tawabu Yahya Issa, learned State Attorney for the Republic, the accused had killed the deceased on 14th July 2020, took his ATM Card, withdrew the deceased's monies and enjoyed them until when he was arrested on 19th December 2020. In his opinion, the accused is displayed responsible for two (2) reasons, namely: he was the last person to be seen with the deceased before the deceased was found dead and failed to produce plausible explanation hence must be presumed as a killer; and second, credible and reliable prosecution witnesses PW1, PW3 and PW15 and that PW3 had recognized the accused at MM Bar. In the opinion of Mr. Tawabu, minor discrepancies in the instant case may be ignored as three (3) years have elapsed from 14th July 2020 when the incident had occurred and November 2023, when witnesses were summoned to testify in the case hence the witnesses may be prone to minor contradictions. In substantiating his submission, Mr. Tawabu had registered a bundle of precedents of the Court of Appeal (the Court) in: Miraji Idd Waziri @ Simana & Another v. Republic, Criminal Appeal No. 14 of 2018; Mathayo Mwalimu & Another v. Republic, Criminal 19 Appeal No. 147 of 2008; Athumani Hamis @ Athuman v. Republic, Criminal Appeal No. 288 of 2009; Rajabu Khalifa Katumbo & Three Others v. Republic [1994] TLR 129; Goodluck Kyando v. Republic [2006] TLR 363; Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004; Abdallah Rajabu Waziri v. Republic, Criminal Appeal No. 116 of 2004; and Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2001. Regarding the defence of the accused, Mr. Tawabu thinks that the accused had produced alibi specie of defence, but declined to support the same by bringing materials in documentary evidence or persons to testify that he was at Musoma on 14th July 2020. The defence on the other hand thinks that the Republic had declined to establish its case beyond doubt. In the opinion of Mr. Otieno Onyango, learned Defence Attorney, the prosecution witnesses brought in the case may be grouped into three (3) levels, namely: first, group of witnesses who did not bring any necessary materials, namely: PW1 who sketched the map of the crime scene, PW5 arresting officer, and PW8 who narrated on the death of the deceased; and second, key witnesses who brought relevant materials, but with weaknesses namely PW3, PW7, and PW10; and last group contains investigation officers namely PW4, PW12, PW13, PW14 and PW15 who did not comply with Police General Orders, No. 229. 20 Mr. Onyango submitted that he has nothing to say with the first group as it did not produce any relevant materials, but dwelled on the second group and its weaknesses. According to him: PW3 testified to have seen the accused with the deceased at night hours of 14th July 2020, but failed to describe the accused in terms of garments, exact time, intensity of light, and no Bar Manager or attendant was called to corroborate the statement of PW3 as required by the decision in Mtendawema Said v. Republic, Criminal Appeal No. 198 of 2011 and Cosmas Chalamila v. Republic, Criminal Appeal No. 6 of 2010; PW7 testified to have attended the accused at Musoma in money transactions, but declined to identify him in the identification parade; and PW10 had testified to have attended the deceased at her Teller Number 2, and not the accused. Regarding the last group, Mr. Onyango stated that it is full of police officers in investigation and forensic departments and exchanged documents without following a paper trail as required by the Police General Order, No. 229 item 40 and the some of them were brought in this court in breach of section 246 (2) of the Act and that the accused benefits from good character as it was stated by the prosecution witness, PW6. The laws regulating criminal trials require the Republic to establish their cases beyond any reasonable doubt, and not the accused persons to substantiate their innocence. That is the 21 enactment in section 3 (2) (a) of the Evidence Act [Cap. 6 R. E. 2022] (the Evidence Act). The enactment has already been appreciated in a bunch of precedents of this court and the Court (see: (see: Said Hemed v. Republic [1987] TLR 117; Mohamed Said Matula v. Republic [1995] TLR 3; Horombo Elikaria v. Republic, Criminal Appeal No. 50 of 2005; Republic v. Josephat Athman & Two Others, Criminal Session Case No. 13 of 2023; and Republic v. Peter Masero Mwita, Criminal Sessions Case No. 184 of 2022). The onus in establishing criminal cases does not shift to accused persons to establish their innocence, save for rare circumstances (see: Mohamed Said Matula v. Republic (supra). The duty of the accused persons in criminal cases is to raise some doubts in prosecutions materials. Accused persons cannot be found guilty on basis that they testified lies (see: Mushi Rajab v. Republic (1967) HCD 384) or weaknesses on part of their defence (see: Christian Kale & Rwekaza Bernard v. Republic (1992) TLR 302). Regarding direct evidence, the law in section 62 (1) (a) of the Evidence Act provides that: oral evidence must, in all cases whatever, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it. In the instant case, there is no eye-witness who saw the accused killing the deceased. According to Mr. Tawabu, if that law in section 22 62(1) (a) is followed blindly many killings would remain unsolved because there are circumstances where direct evidence of killing cannot be obtained. In order to substantiate his submission, he cited the decision of the Court in Mathias Bundala v. Republic (supra). The indicated precedent shows that; ...if every killing had to be witnessed, then many homicides would remain unsolved. We believe so because killing may be by poisoning, starving, drowning and a thousand other forms of death by human nature may be overcome. Such killings can hardly be eye-witnessed by independent witnesses. In the instant case, both parties are in agreement that the deceased was found dead at its shop on 15th July 2023 and was buried on 17th July 2020. There was also no dispute that the deceased had expired from hypoxia with head injury and summary report of Exhibit P.2 shows that: the body of the deceased had marks of sting around the neck and compressed skull, left side near ear and deviated epiglottis and other signs of loops at both limbs. PW1, PW3, PW4 and PW8 have testified that they found the deceased tie-roped in hands and legs to show that the death was unnatural death. With the compressed, deformed and fractured head skull, it was obvious that the deceased was attacked by heavy object on the head with criminal intent to kill. 23 The parties are in dispute on who had killed the deceased in night hours of 14th July 2020. According to Mr. Tawabu, it is true that there is no eye-witness in the present case, but the accused was the last person to be seen with the deceased alive a night before the deceased was found dead hence he must produce plausible explanation as stated by the Court in the precedent of Miraji Waziri @Simana & Another v. Republic (supra), which held that where there are evidences that the accused was the last person to be seen with the deceased alive, then there is a presumption that he is the killer unless he offers plausible explanations to the contrary. In the opinion of Mr. Tawabu the law is now certain and followed by the same Court in Mathayo Mwalimu & Another v. Republic (supra). On other hand Mr. Onyango thinks that the evidence produced by PW3 had several doubt with regard to descriptions of the accused in terms of garments, exact time, intensity of light, and no Bar Manager or attendant was called to corroborate the statement of PW3 as required by the decision in Mtendawema Said v. Republic, Criminal Appeal No. 198 of 2011 and Cosmas Chalamila v. Republic, Criminal Appeal No. 6 of 2010. In between the contest, Mr. Tawabu, admits that there were no descriptions produced by PW3, but thinks that the gap is filled by the Court in the precedent of Athumani Hamis @ Athuman v. 24 Republic (supra) which stated that recognition is more satisfactory, more assuring and more reliable than identification of a stranger. According to him, PW3 testified that the accused is a village mate, frequently used to see him with the deceased at the shop and the accused did not dispute the facts on recognition during the hearing of the case. The law regulating identification of accused persons at night hours as produced by the Court, indicates a total of six (6) criteria to be followed in assisting lower courts in resolving whether a witness had the opportunity to identify accused person, namely: first, light at the scene of the crime; second, source of light at the scene of the crime; third, intensity of the light at the scene of the crime; fourth, proximity of the accused and witness; fifth, description of the accused or matter; and finally, familiarity of the witness to the accused. There is a large bundle of precedents on the subject and the practice is now certain and settled (see: Jamila Mfaume Makanyila @ Mama Warda v. Republic, Criminal Appeal No. 383 of 2016; Yohana Chibwingu v. Republic, Criminal Appeal No. 117 of 2015; Muhidini Mohamed Lila @ Emolo & 3 Others v. Republic, Criminal Appeal No. 443 of 2015; Issa Mgara v. Shuka v. Republic, Criminal Appeal No. 37 of 2005; Philipo Rukandiza v @ Kichwechembogo v. Republic, Criminal Appeal No. 15 of 25 1994; Waziri Amani v. Republic [1980] TLR 250 and R. v. Mohamed Alui [1952] EACA 72). In the present case, PW3 had declined to register the first five criteria. Mr. Tawabu had cited the last criteria relating to the familiarity of PW3 and the accused stating that when familiarity enters into place, it is a question of recognition and not identification. In the present case, PW3 testified that he was passing-by at MM Bar in his normal movements and saw the accused with the deceased having conversations. During the hearing of the present case, PW3 had testified to have known the accused as a village mate, friend to the deceased and works for gains in furniture industry at Mjini Kati next to bus stand. The evidence on the three (3) indicated subjects of village mate, friendship and working area were corroborated by the accused. The question now is whether under the circumstances of the instant case, PW3 had identified or recognized the accused person. From the evidence of PW3 registered in the case, Exhibit D.l and evidence of the accused himself, it is certain that PW3 had recognized the accused at MM Bar at night hours of 14th February 2020. The accused was required by the law in precedent of Miraji Waziri @Simana & Another v. Republic (supra) to register relevant materials to say where they have departed with the deceased. 26 I am aware the defence of alibi was registered by the accused in the present case. However, the defence hold less weight if there is no corroboration materials from persons who witnessed the accused in other locations on 14th July 2020. From the record, the accused had several materials and witnesses to summon in his defence to convince this court in his defence, such as visitor's book register of Galaxy Hotel, bus tickets for and return from Musoma, Deo Shop personnel or his customer Mr. Mwita Bega. The law in precedents shows that failure to call material witness to corroborate party's evidence may move courts to draw adverse inferences against the party (see: Wambura Marwa Wambura v. The Republic, Criminal Appeal No. 115 of 2019; Stanley James @ Mabesi v. Republic, Criminal Appeal No. 115 of 2022; Peter Masero Mwita (supra). In the present case, a bundle of forensic pieces of science was brought by expert witnesses to show that the accused was spotted at Musoma NMB Bank in morning hours of 15th July 2020 and both parties are not in dispute with the display in Exhibit P.7. The dispute is whether the accused withdrew monies by use of the deceased's Bank Card. I am aware PW10 had testified that he attended the deceased on 15th July 2020 whereas Exhibit P.7 shows the accused had visited the bank on 15th July 2020. The accused is not displayed withdrawing the monies in Exhibit P.7. 27 On my part, I disregard and decline all the sciences registered save for the evidence brought by expert witness PW13 who had testified on handwriting samples of the accused taken at the police to be similar in character and appearance with the handwriting found in Exhibit P.3. This substantiates that the accused had withdrawn the monies from the bank on 15th July 2020 by use of the deceased's bank card. I am aware of the complaint registered by the defence side on chronological documentation of exhibits brought in this court. However, the complaint may be cured from the fact that witness PW15 had explained on how he collected the samples and brought them into the possession of PW13. In any case, there is a Court decision which had resolved that it is not correct to take that every apparent contravention of the provision of the Criminal Procedure Act automatically leads to the exclusion of the evidence in question (see: Nyerere Nyague v. Republic (supra). In the indicated precedent, the court was resolving provisions of the principal legislation whereas the complained breach in the present case is cited in the subsidiary legislation regulating handling of exhibits in criminal cases. This is a criminal session case of murder species enacted under section 196 of the Penal Code and may attract death sentence upon conviction. This court cannot consider minor discrepancies to let the accused persons acquitted for minor discrepancies (see: Dickson Elia Nsamba Shapwata & 28 Another v. Republic, Criminal Appeal No. 92 of 2007 and Sahoba Benjuda v. Republic, Criminal Appeal No. 96 of 1989). The Court has already indicated that criminal justice system is not a football game, but a serious business of acquitting the innocent and convicting the guilty according to the law (see: Hatibu Gandhi & Others v. Republic [1996] TLR 12) and this court had echoed in Republic v. John Mbatira @ Mtuke, Criminal Sessions Case No. 181 of 2022 and Republic v. Peter Masero Mwita (supra). In considering the totality of evidence brought in the present case, it is vivid that the accused had killed the deceased on night hours of 14th July 2020 (see: Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 and Republic v. Chacha Mwita Mohere, Criminal Session Case No. 141 of 2022). In conclusion, I was persuaded and believed PW3 on the evidence of recognition of the accused at MM Bar at night hours of 14th July 2020. In that case, the defence of alibi produced by the accused dies a natural death (see: Abdallah Hamisi Salim @ Simba v Republic, Criminal Appeal No. 68 of 2008 and Edgar Kayumba v. D.P.P., Criminal Appeal No. 498 of 2017). Similarly, the defence alibi that was raised by the accused in the instant case does not introduce a reasonable doubt in the prosecution's case in view of the strong evidence of PW3. The defence of alibi brought by the accused was intended to deceive this court (see: Edgar 29 Kayumba v. D.P.P (supra); Republic v. Keraryo Rhobi Busere & Another, Criminal Sessions Case No. 31 of 2022; and Republic v. Peter Ntingwa Peter, Criminal Session Case No. 184 of 2022). The remaining question in the present case is: whether the accused had killed the deceased with malice aforethought. The circumstances to assist this court in determining malice aforethought in criminal cases of murder species are enacted in section 200 of the Penal Code. The enactment has received interpretation of the Court in 1994 in the precedent of Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994, where the Court stated, in brief, that: usually an attacker will not declare his intention to cause death or grievous bodily harm. The intention ' of accused must be ascertained from various factors, including the following: the type of the weapon used in the attack; the amount of force applied in assaulting; the part of the body where the blow was directed; the number of blows; and the kind of injuries inflicted. In the present case, the materials produced by PW8, PW2 and Exhibit P.2 show that the accused had killed the deceased with malice aforethought as the sensitive part of the body head was attacked to cause fracture, the neck suggested strangulation and the hands and legs were rope-tied to cause hypoxia to death. In the circumstances of the instant case, I am satisfied that the prosecution has proved its case beyond reasonable doubt as 30 per requirement of the law in section 3 (2) (a) of the Evidence Act and precedent in Said Hemed v. Republic (supra), that the accused murdered the deceased. Having said so, I find the accused, Mr. Elija Thomas Patrick @ Patrice Anthony Patrick, guilty to the charged offence of murder against the deceased contrary to sections 196 and 197 of the Penal Code. Accon Judge 13.12.2023 This Judgment was delivered in open court in the presence of accused, Mr. Elija Thomas Patrick @ Patrice Anthony Patrick and his learned Defence Attorneys, Mr. Otieno Onyango and in the presence of Mr. Davis Katesigwa, learned State Attorney for the Republic. 17A/)jO__ — F. H. M(ulyaJ Judge 13.12.2023 ANTECEDENT Katesigwa: My Lord, we have no previous record of the accused. We pray for appropriate sentence in accordance to the law. F. H. Mtulya Judge 13.12.2023 31 MITIGATION Onyango: The accused has been in custody for three (3) years and has a wife and two children who solely depend on him. My Lord, that is all from the defence. F. H. Mtulya Judge 13.12.2023 Accused: My Lord, this court to consider me as a father of two (2) children. My Lord, we pray for a lenient penalty. My Lord, I also pay school fees for my young brothers. I pray so My Lord. F. H. Mtulya Judge 13.12.2023 SENTENCE Court: I have heard the learned minds in this case and accused person on antecedents and mitigations. However, section 196 of the Penal Code [Cap. 16 R.E. 2022] was followed by section 197 of the same Penal Code which was enacted in mandatory terms. Section 197 of the Penal Code has no options or alternatives than a death sentence. Having said so I am moved to sentence the 32 Right of appeal explained to the parties. F. H. Mtulya Judge 13.12.2023 This Sentencing Order was delivered in open court in the presence of accused, Mr. Elija Thomas Patrick @ Patrice Anthony Patrick and his learned Defence Attorney, Mr. Otieno Onyango and in the presence of Mr. Davis Katesigwa, learned State Attorney for the Republic^-/?) z) /) 13.12.2023 33