republic vs peter moris mwandelema 2023 tzhc 23690 5 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB-REGISTRY OF KIGOMA) AT KIGOMA CRIMINAL SESSION NO. 46 OF 2022 REPUBLIC VERSUS PETER MORIS C^MWANDELEMA JUDGEMENT 5th December 2023 & 1” February 2024 Rwizile, J Little was known about Kiganza village until the day of July 2022 morning, when sadly and unexpectedly, seven family members were killed. In the said. morning, the village was shocked by these unfortunate atrocities. How these events unfolded was a tale told by Oiida Sauli Mkunze and her husband Ezekiel Cheche. As she was used to, Oiida went to call her sister Tilifela Toyi who lived with his son January, close by for a morning prayer. To her dismay, Tilifela was not awake, which was unusual. Her call to her I ICQft received no response. She tried through the window of the room she to sleep but it was received with dead silence. She had to contact the main house entrance. The door was not locked. She pushed in. Shockingly, she faced Tilifela's body on the floor in a pool of blood. 1 While astonished with nothing to do, she shouted to January, the son of Tilifela informing him of the death of his mother. Her noise was greeted with silence. She then looked into the bedroom where January and his wife slept. Here, she saw more surprising things. She took it no more and shouted for help. Ezekiel Cheche, Olida's husband, heard the alarm and quickly responded. He entered the house and was told by his wife, to see for himself. With his heart in his hands, he saw Tilefela's body, he then entered the bedroom. In it, January with his wife Sara, and two of their children were in. The bodies of January and Sara were on a mattress, while one child was just aside with cut wounds on the head struggling with his life. More of that was January's toddler, six months old, who was in between her dead parents in a pool of blood but amazingly alive without any injury. In the other two bedrooms, three other bodies were found. They had multiple wounds on their bodies particularly; on the head, neck, and cheek. In total, 6 people of the same family were dead by that morning. The wounded child James was taken to Bitale Health Center, then to Maweni Referral Hospital, and then to Muhimbili National Hospital. Very unfortunate, James could not make it to Muhimbili, he died a few days later at Morogoro on the way to Muhimbili. 2 Upon discovery of all 6 bodies, the police were informed. When they arrived at the crime scene, bodies were examined, autopsies conducted and they were buried, while investigation was mounted. What remained a myth was who did this mayhem and what was the reason behind it. The villagers, the media, and authorities rushed to the crime scene. It was rumored that murders may have been actuated due to a land conflict. In an attempt to bust this myth, the police arrested many people in that connection. The accused was among them. According to the prosecution, he admitted before the police officers and the people that he committed the offences. He was therefore charged with seven counts of murder contrary to sections 196 and 197 of the Penal Code. According to the charge sheet, it was alleged that on the 3^^ day of July 2022 at Kiganza village within Kigoma District in Kigoma Region, the accused murdered Tilifela Toy, January Mussa @Cheche, Sara Dunia Kizeze, Joel Mussa @Cheche, Christina Lazaro@Mussa, James Joel @Cheche and James January@Cheche, which form the first to seventh counts of murder. The accused who was represented by Mr. Sadiki Aliki learned counsel when the charges were put to him, and with confidence, he denied any involvement. 3 The accused's denial of these offences precipitated, as is usually the case, the prosecution which was represented by a fleet of Attorneys led by Mr. Shaban Masanja Senior State Attorney, Ms. Edna Makala, Mr. Fortunatus Malicha and Ms. Flora Lukasi State Attorneys, cast with the onus of proving guilty of the accused, to call 21 witnesses, namely; Olida Sauli Makunze (Pwl), Ezekiel Cheche (Pw2) Godfrey Christopher Pata (Pw3), Florence Peter Ikorongo (Pw4) Boniface Edward Kahurananga (Pw5), Dotto Simon Karoli (Pw6), Philbert Ezekiel Cheche (Pw7), Ashrafu Idd Bitaliho(Pw8), WP 8918 DC Magreth (Pw9), E 8391 D/GT Abdallah (PwlO), Leticia Waitara(Pwll), Elizabeth Kayila (Pwl2), PF-24009, A/Insp. Kilendu, (Pwl3), Johari Masoud (Pwl4), Christina James William (Pwl5), A/InsP - Joseph Vicent Paulo (Pwl6), and Kashoba Ally Kashoba, (Pwl7). Others included A/Insp Denis Kihombo (Pwl8), H 4671, D/CpI Juma (Pwl9), Prosper Lucius Eusebius (Pw20), and James Lisawa, Wawenje (Pw21). In murder cases, the prosecution is required to prove that there was unnatural death(s) of the deceased person(s) and that it is the accused who did not only kill them but also did so with malice aforethought. To be precise, there is ample evidence to prove that 7 people were killed as stated in the charge. It is after all not disputed by the accused. In terms of 4 evidence of Pw5 and Pwl2, who conducted the autopsy, it is proved that the deceased persons indeed died and that their deaths were not natural. It should be recalled, that Pw5 conducted the autopsy for all the deceased persons on 3"^ July 2022, except that of James January Cheche, which was conducted by Pwl2 on 6*^^ July 2022. They have been admitted collectively as P2, while the autopsy of James January was admitted as P6. The law does not define what constitutes malice aforethought, but it provides that an incidence that constitutes malice aforethought is either an unlawful act or omission that leads to death. In terms of section 200 of the Penal Code, it is observed that to prove malice aforethought, it is a matter of evidence establishing either of the following; i) an intention to cause the death or to do grievous harm to any person, whether that person is the person killed or not; ii) a knowledge that acts or omissions causing death will probably cause the death or grievous harm to some person, Hi) an intent to commit an offence punishable with imprisonment for more than three years; 5 iv) an intention by the act or omission to facilitate an escape from custody of any person who has committed or attempted to commit an offence. Perhaps what is important here are the remarks of the Court of Appeal on how to prove malice aforethought in the case of Enock Kipela v. R, Criminal Appeal No. 150 of 1994 on page 6. "...Usually, an attacker will not deciare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors including the following: (1) the type and size of the weapon, if any, used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow or blows were directed at or inflicted; (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attacker's utterances, if any, made before, during or after the killing; and (7) the conduct of the attacker before and after the killing..." Attuiting the authorities above, I have no doubt, that the evidence has it all. Taking it from Pw5 and Pwl2 and collective exhibits P2 and P6 which are 6 reports on post-mortem examination of the bodies of the deceased. The following has been gathered; Tilifela Toy had one big wound on the left side, two big nerves on the left side of the neck were cut and blood could not be supplied to the body. She died due to blood loss. As to January Mussa Cheche, it was testified that he sustained injuries on the head above the ear and the neck on the right side. He died of a severe hemorrhage. Blood nerves were cut. In respect of Sara Dunia Kizeze; She had one wound at the back head, right neck side, and one thumb of his left arm was cut. The wounds were very deep. Too much blood was lost due to the wound and hence caused death. Joel Musa Cheche: He had wounds in the front part of the head, neck - right side, and left arm. The cause of death was due to loss of blood. Christina Lazaro Mussa had a back head cut wound (Kisogoni) as well as on the right and left hands. She died due to a severe hemorrhage. James Joel Cheche. This young boy had a cut wound on the head above the right ear and the right eye swelled and had blood. He died due to a severe hemorrhage, lastly, James January Cheche had a cut wound on the right side of the head. 7 From exhibits P2 and P6, it can be gathered with certainty that the blows on each of the deceased were heavy, done in the head, in a similar way and by using a sharp object. This type of killing was senseless, planned, and mercilessly executed. The attacker(s) did not as it looks, have any sense of fear to kill. This is because almost all who were present in the house were killed regardless of his understanding of what was the issue behind it It is therefore crystal clear that the killer(s) had malice aforethought shown from the nature of the weapon, the amount of force applied, the parts of the body blown, and the severity of blows made on each of them. The next crucial question is who did the acts? As shown above, the prosecution tendered 21 witnesses, with at least 12 documentary exhibits. A brief account of the evidence is shown below; Pwl stated that on 3”* July 2022 early in the morning appeared at the crime scene as the first person and discovered the deaths of January Mussa and his family members. Her husband, Pw2 followed Pwl and found the bodies in the house of January Mussa. He also heard the accused admit at the funeral and before the police how the murders were committed. He also witnessed the accused lead the investigation team and villagers to recover 8 the panga thrown in the bush close to where he worked. That panga, he said was used to commit all these murders. Pw3 aided the arrest of the accused Peter Moris on 4“^ July 2022 at about 8 pm. He found him with his ex-wife Johari. He called the policemen. They took him to the police station. It was his evidence that the accused worked with January and knew him before the incident. Pw4, a justice of the peace and Primary Court Magistrate. She received the accused on 6*** July 2022 at about 2:30 pm, from DC Abdallah. She recorded an extra-judicial statement. It was admitted after a trial within a trial as exhibit Pl according to her, the accused admitted the offences and narrated the whole ordeal of the murders of the family members. Pw5 is an assistant medical officer trained in radiology. He worked with the Government Hospital of Maweni in the Kigoma Region. He conducted the autopsy on the six bodies arising from the Kiganza murders. It was his finding that the causes of death were due to severe hemorrhage. Pw5 tendered the autopsy reports of Christina Lazaro Mussa, Tilifela Toy, Joel Musa Cheche, James Joel Cheche, January Mussa Cheche, and Sarah Dunia Kizeze. They were collectively admitted as P2. 9 Pw6 is a villager who arrived at the crime scene, in the morning and found many people crying. She volunteered to take James January to the hospital. According to his evidence, James a three-year-old boy had sustained multiple cut wounds and was rushed to the Bitale health centre, she was dressed and then referred to Maweni Hospital where he was admitted. The second day, she said, was referred to Muhimbili National Hospital but died on the way as they arrived at Morogoro. She said the body was brought back and buried along with other family membe rs. Pw7, joined fellow mourners at the crime scene in the morning because he was called from the church. He too, witnessed the bodies of the deceased persons. On the 5^, he said, the police brought the accused to the crime scene. Family members were called, and he witnessed the accused narrate the story how he committed the said murders. He said the accused had planned to kill January but as events unveiled, he killed the whole family by using a panga. He cut them on different parties of their bodies. He too, witnessed the accused lead the police to a bush where the Panga used to kill them was thrown. According to him, it was searched, found, and taken by the police officers. 10 Pw8 is a Medical Doctor, who worked with Maweni Hospital in Kigoma. On 6^^ July 2022, he took DNA samples from the body of a young boy -James who was in the mortuary. He took the tooth, hair from the head, and a saliva swab from the mouth. He said he did so under the superintendence of relatives and the Government Chemist, Pwll. The samples, he testified were given to one police officer called Magreth. On the next day, he did the same, at Kiganza cemetery, where six bodies were exhumed. At Kiganza, he took a tissue from the thigh muscle, (kipande cha nyama katika msuli wa paja) from all six bodies. He said, the samples were taken to the forensic department. All was done, according to his evidence, in the presence of the relatives who identified the bodies and the Government Chemist who ensured samples were taken properly and kept in order before they were handled to Magreth-Pw9. Pw8 tendered the exhumation of bodies ordered. It was admitted as P3. Pw9 is a police officer from the forensic bureau of the police. She testified that she received samples of human DNA from Dr. Ashrafu Pw8) which were a tooth, saliva swab from the mouth, and hair from the head taken from a boy at the Maweni Hospital Mortuary on 6^*^ July 2022. She said, she kept the same after drying them and labeled them on the directive of Pwll who 11 also supervised the taking of the samples. She testified further that; she did the same on the next when a similar exercise was done at Kiganza upon exhuming six bodies. On this day, she said, she was with Dr. Ashrafu, Dr. Prosper a Government Chemist, and a mortuary attendant. After doing all that, she added, the accused was taken from remand, and had a swab from his mouth taken and it was labeled K, while some others were labeled differently eg. A and Al for Tilifela, B, and Bl for January. According to her evidence, the same samples were kept and given to A/Insp. Kilendu (Pwl3) on 7^^ July 2022. PwlO is the police officer who investigated this case. He said the accused was arrested on 4^^ July. He said he had been at the crime scene on the day the murders were committed. He had recorded statements from different people. He said on 5^^ July was at the police station. Some suspects were arrested in connection to the Kiganza murders. The accused when on preliminary interview admitted to having committed the offences. He, the accused volunteered to lead the investigators to the crime scene, which he did and he also led them to the place where the panga was thrown after committing the offences. At the scene of the crime, he showed them how he started killing January, then his wife, children, and others. 12 Pwll is the Government Chemist anafyst. She testified that she was at Maweni Hospital on 6^^^ July 2022, supervising Dr. Ashrafu (Pw8) who took samples of human DNA from the body of James January. She said, he took the swab (mpanguso wa kinywa), and hair from the head and made sure they were properly taken, labeled, and kept by Pw9. On the day that followed, she said, another similar event was done at Kiganza where 6 other bodies upon exhumation, samples for human DNA were taken. According to her evidence, the samples were taken from the bodies of Tilifela, January Mussa, Joel Mussa, Sara Dunia, Christina Lazaro, and James Joel. Samples taken, she added, ’were thigh tissues, which were taken by Dr. Ashrafu, while the teeth were taken by Dr. Prosper, and the samples were taken from each body, labeled, and kept by Pw9 On July, she said, she received a parcel of samples from A/Ins Kilendu- Pwl3 with a cover letter from the PCO with PF180 and a request to do human DNA tests. Upon receiving them, they were given laboratory number 2101/2022, they were sealed and labeled. She did the tests and upo.n finishing, the same were verified and approved by the Chief Government Chemist. 13 On 28^*^ July, in her office in Dar Es-Salaam, an examination of human DNA was done. Thereafter, she handled the report to Afande Daniel from police Kigoma and the remains of a T-shirt, a pair of trousers, and a panga. It was her evidence that the teeth, swabs, and tissue had no remains. She said, the exhibits, she received were given laboratory. No. 2101/2022 were labeled with the letter H- one panga. It was identified before this court with a seal. I- for a T-shirt, J, for a pair of trousers. According to her, the panga had blood stains, as it was in the clothes. The same was admitted as P4. She also tendered a report with the findings, admitted as exhibit P5 According to the report (P5), Pwll found that the thigh tissue, teeth, and buccal swabs were from human beings. She concluded that blood found in the clothes of the suspect, matched with blood found in the panga and that it was for the deceased persons. The DNA of the suspect matched with clothes as taken and examined from the accused's buccal swabs. According to her, every human being has a unique arrangement of DNA except in identical twins. Pwl2 is an assistant Medical Doctor at the Maweni Hospital. He testified to having examined the body of the deceased a child with 3years, called James 14 January Cheche on 6^*^ July 2022 at Maweni Hospital. The report on post­ mortem examination exhibit P6, according to him, shows, he died due to a cut wound in the head inflicted by a sharp object, which caused severe loss of blood. Pwl3 told this court that, on 4*^ July 2022 at night time was instructed to assist the arrest of the accused. He said the accused was In the Mwanga area under the arrest of one Godfrey Pata (Pw3). In a company of fellow police officers, including DC Juma, DC Mnzava, DC/SGt Godfrey, and CpI. Elias drove to the area. Pw3 was present with the accused and a woman called Johari Masoud- Pwl4. The accused, according to his evidence, was arrested. When led to the police vehicle, they discovered, his clothes had blood stains. The same were instantly seized in the presence of Pwl4. Pwl3 tendered a certificate of seizure as P7. Apart from a T-shirt and a pair of trousers, from the accused, a black mobile phone techno T-528 was seized. It was admitted as P8. The exhibits, Pwl3 went on testifying, were kept by the exhibits keeper until he got them back among many others and took them to the Chief Government Laboratory Authority for examination where they were handed to Pwll for examination. 15 Pwl4 testified that he lived together with the accused atTabora. When they parted ways, she came to Kigoma. The accused, as well came to Kigoma and was in contact with her through January's phone. She testified that by using January's phone to contact her, they later developed a love relationship with January and had sex. On 3"* July, she added, the accused went to her business premises and told her that January and his family were killed by robbers at night. On that day, she testified, the accused stayed and slept at her home. On 4^ July, at night, when at her business premises at Mwanga, the accused came again and was arrested by police officers. She further testified that the accused's clothes were taken. That is a blue T-shirt and a pair of trousers (jeans). It is her evidence that she signed a certificate of seizure at the time the accused was arrested and headed to the police station. At the police station. she did not see the accused because he was in a police vehicle while she was taken in a private car. She said she was interviewed and released. Pwl5, she lived close to Tilifela's house. She said, that on 2'“' of July evening, he saw the accused and January pass by her home towards January's compound. It was her evidence that at night she heard some noise in the house where January and his mother Tilifela lived. She shared that 16 information with her husband but it was not taken seriously because it lasted for a few minutes. Later in the same morning, news unfolded that Tilifela, January, and the whole family were brutally killed. She further testified that she had sold her mobile phone techno. T528 to the deceased Sara Dunia, wife of January. It was identified as P8. Pwl6, he worked as an investigator with police at Kigcma. He told this court that on 3’’^ July, in the morning he received a call from the Ward executive officer of Kiganza (Pwl7), who informed him about the murders of 6 people of the same family. In response to the call, he went to the crime scene in the company of other officers. They found six bodies at the crime scene and were told another person was injured and had been rushed to the hospital. As an investigator, he gathered information that led to the arrests of different suspects including the accused. He testified that on 5^^ July, at the police station, the accused confessed to having committed the offences. It was his evidence that the accused narrated the story of how the offences were committed. He said the reason was because January was having a love affair with his wife. After admission, Pwl6 said, the accused led the policemen to the crime scene and showed them the way he killed them. 17 He further testified that the accused said used the panga to kill them and led the way to where the panga was thrown after committing murders and it was recovered. The search order/certificate of seizure was admitted as P9. Pwl6 also said he took part in the exercise of exhumation of the bodies of the deceased for human DNA on 7^ July 2022. Pwl7, he is a WEO of Mwandiga. He told this court that he received information on murders that were committed at Kiganza. Further, he testified, that on 5“" July, the police officers came to the crime scene with the accused who admitted to having committed the offences. He said the accused led the people close to the pig farm where he worked and showed the bush where the panga he used to commit murders was thrown. He said, the search was mounted and the same was recovered. According to him, a panga with a black handle had blood stains all over it, and upon its recovery exhibit P9 was executed which he signed and identified along with the panga exhibit P4. Pwl8, he kept exhibits at the police station. He said on 05^^ July 2022, he received exhibits from CPL Juma. They were a panga, clothes (P4), a mobile phone(P8), and other exhibits of human DNA. The same according to him 18 were taken by Pwl3 on 8^^ July 2022 for examination. On 01^ October 2022, received from CpI Denis exhibits which he said were from the Government Chemist. He said they were a panga with red tape with GCLA and with the letter H, the envelope had been labeled J, T- for a pair of trousers and another one was with the letter K. It was his evidence further that on 27^^ November 2023 all exhibits he kept were given to Leticia Waitara Pwll. Pwl9 worked with the police at the police station. On 3'^^ July 2022, went to the crime scene. He drew a sketch map of the crime scene after having surrounded it with the red tape. He tendered the same. It was admitted as PIO. Pwl9 also stated that he participated in the arrest of the accused on 4^*^ July at Mwanga. It was his further evidence that he drew a sketch which is exhibit Pll, showing where the panga was found. This was when he witnessed the accused leading the investigation team to a place where the panga that was used to commit murders was thrown. It was his evidence further that he took ail the exhibits recovered to the exhibit keeper. Pw20 is a dental therapist, he testified that he took samples of human DNA from the bodies that were exhumed in connection to the Kiganza murders which were, one tooth, a canine, and an incisor from the left side of the 19 mouth for each body. He did so at the directive of the Government Chemist and Dr. Ashrafu. After doing so he gave them samples to Magreth (Pw9). Pw21 works with Vodacom (T) PLC in Dar es Salaam as the physical security and law enforcement assistant support manager. On 15^^ July 2022, at the Vodacom office at H eadquarters in Dar es Salaam, he got a letter from the RCO of Kigoma requesting the IMEI Analysis (International Mobile Equipment Identity), Call date record (CDRS), and know your customer (KYC). According to him, he did not remember the phone number but it was for Peter Moris Mwandelema. He said, that after doing what was requested. he prepared a report. It was admitted as P12. According to his evidence, the report showed, the phone Techno T-528 was used by the accused on 3’’'* and 4^^ July 2022 and was so registered. But this same phone number was used by Christina James William (Pwl5) some times before. The same is exhibit P8. On the side of the defence, the accused testified and called no witnesses. His evidence was clear that he did not commit the offences charged. He said he was arrested and taken to different places, tortured, and asked to sign statements in which they say he admitted the offences. It was his evidence 20 that the offence was not proved because he did not commit them. He asked this court to acquit him. After a brief narrative of what constitutes evidence presented in this case, I think I have to clearly state that at law, cases may be proved by direct evidence or circumstantial evidence, or both. And it is the prosecution that is cast with the duty to prove the case in terms of section 3(2)(a) and 110 of the Evidence Act [Cap. 6 R.E 2022]. It has been held several times that the prosecution has to prove al! ingredients offence to win a conviction, see the decision in the case of Anthony Kinanila and Another v R, Criminal Appeal No. 83 of 2021, (CAT). It is clearly understood that direct evidence and application of which is clearly stated under sections 61 and 62 of the Evidence Act, which states as hereunder; 61. AH facts, except the contents of documents, may be proved by ora! evidence. Oral evidence must be direct 62.-(1) Oral evidence must, in all cases whatever, be direct; thatistosay- 21 (a) if it refers to a fact which couid be seen, it must be the evidence of a witness who says he saw it; (b) if it refers to a fact which couid be heard, it must be the evidence of a witness who says he heard it; (c) if it refers to a fact that couid be perceived by any other sense, or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion or. as the case may be, who holds it on those grounds. Direct evidence, has been sometimes called positive evidence, as it was held in the case of Commonwealth vs. Webster 1850 Vol. 50 MAS 255 where Shaw CJ stated: " The advantage of positive evidence is that it is a direct testimony of a witness of a fact to be proved who if speaks the truth so it did. The only question is whether he is entitled to belief. On the other hand, what constitutes circumstantial evidence is not defined by the Evidence Act. But circumstantial evidence means evidence that tends 22 to prove a fact indirectly by proving other events or circumstances which afford a basis for a reasonable inference of the occurrence of the fact in issue. The circumstances should be conclusive and they should be such as to exclude every hypothesis but the one proposed to be proved, that it is the accused person who committed the offences charged. In the case of John Magula Ndongo v R, Criminal Appeal No. 18 of 2004, the Court of Appeal held on page 6 that; In a case depending entirely on circumstantial evidence before an accused person can be convicted the court must find that the inculpatory facts are inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt. It is necessary before drawing the inference of guilt from circumstantial evidence to be sure that there are no other co-existing circumstances that would weaken or destroy the inference. It follows therefore that for circumstantial evidence to hold, it must conform to three tests namely; 23 The circumstances from which an inference of guiit is sought to (0 be drawn, must be cogently and firmly established. those circumstances should be of a definite tendency precisely (ii) pointing towards the guilt of the accused; and the circumstances taken cumulatively, should form a chain so. (Hi) complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and no one eise The three tests above were developed by the Court of Appeal in the case of Ndalahwa Shilanga and Another vs R, (supra) on page 8. Astute from the authorities referred above, having gone through the prosecution and precisely all 21 witnesses, I am bound to hold that there is no direct evidence. I am saying so because there is not, even a single witness who claimed or testified that he saw the accused commit the offences. All it was said, is that the accused confessed to having committed the offence. This leads me to deal with the confessions. According to the prosecution evidence, the accused upon being arrested, told the police officers at the police station that he had a confession to make. 24 This confession, according to prosecution evidence was first made to PwlO- SGT Abdallah on 5^*^ July at the police station. The confession was oral and later it was reduced to writing when he was taken to Pw4 a primary court magistrate, who in her capacity as the justice of the piece recorded an extrajudicial statement. Apart from PwlO and Pw4, it has been stated that he also admitted the same in the presence of Pw7, Pwl6, P17, and Pwl9. It means he confessed at the police station on 5^^ July, before PwlO, and on the same day was led to the Kiganza village where he was also admitted before Pw2, Pw7, Pwl6, Pwl7, and Pwl9. But on 6^^ July, he confessed before Pw4. All confessions, as shown, the accused retracted them. He said. he made no confession at all and at some othe.*' time, he said he was forced to make one. The issue to be determined here is whether what the accused is alleged to have admitted amounted to confessions within the meaning of the law. This court in the case of Samwel Nyalada v R, Cr. Appeal No. 121 of 2013, at Ta bora, stated that; "... cautioned statement must be voluntary, disclosing aii the ingredients of the offence(s) charged in terms of type, material time and date" 25 This case law notwithstanding, the Evidence Act has defined what constitutes a confession. Section 3 of the Act, defines a confession as - 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 reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence; (b) a statement which admits in terms of either an offence or substantially that the person making the statement has committed an offence; (c) a statement containing an admission of all the ingredients of the offence with which its maker is charged; or (d) a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person making the statement has committed an offence; 26 It is perceptive from the definition that, whether it is by words or conduct or both, to be taken meaningfully, a confession must be proved against the maker and it has to be corroborated. But why corroboration? The need for corroboration, should not be overemphasized. In Ramadhan Salum v R, (supra) it was clearly stated that a caution statement having been retracted, the procedure is to look for corroboration. All statements in this case as I intimated before, have been retracted or repudiated in some material particulars. It was, however, restated in the case of All Salehe Msutu vs R, [1980] TLR 1, that; "/I repudiated confession, though as a matter of iaw may support a conviction, generaiiy requires as a matter ofprudence corroboration as is normaiiy the case where the confession is retracted' Based on the above authorities, corroboration must be from the evidence present in the record in totality. It may be circumstantial from the words or conduct of the accused person. The nature of corroborative evidence must come from independent witnesses. 27 whose evidence has to be measured in comparison to all other evidence and the circumstances of the case. This was the position in the case of Tuwamoi vs Uganda [1967] E.A, 84, where it was stated as follows; "...the court will only act on the confession statement if corroborated in materia!particulars by independent evidence..." Further, the court held that; "But corroboration is not necessary in law and the court may act on a confession alone if it is fully satisfied after considering all material points and surrounding circumstances that the confession cannot but be true..." From this decision, it is plain that for corroboration to be meaningful so that it be acted upon, one, it must come from independent evidence and independent evidence may come from an independent witness. Second, if no need for such corroboration, there must be an assurance to the court that based on the circumstances of the case the confession tells nothing but the truth. Perhaps most importantly. the court must be fully satisfied with such evidence. 28 In this case, therefore, there are oral and a written confession. Oral confessions were made to the police officers PwlO, Pwl6, and Pwl9 and it was made to Pwl7 a WEO of Mwandiga, and Pw2 a member of the village. A written confession was made before Pw4. Al! the above are in law capable of receiving confessions. Further, it was made to Pw7 who is a relative of the deceased, and Pw4 the justice of the peace. An extrajudicial statement as a written confession was admitted as Pl. It was admitted upon conducting a trial within a trial. At law, an extrajudicial statement is a form of confession that is not recorded under the terms of the Criminal Procedure Act. To test whether the same was recorded in the manner the law requires, this court was satisfied that it conformed with the Chief Justice's Guide which justices of the peace have to comply with when recording extrajudicial statements. The Court of Appeal in the case of Japhet Thadei Msigwa vs. R, Criminal Appeal No. 367 of 2008 (unreported) held that; "... when Justices of the Peace are recording confessions ofpersons in the custody of the police, they must foiiow the Chief Justice's Instructions to the letter... " We think the need to observe the Chief 29 Justice's instructions are two-fold. One, if the suspect decides to give such a statement; he should be aware of the implications involved. Two, it will enable the trial court to know the surrounding circumstances under which the statement was taken and decide whether or not it was given voluntarily" The guide is articulated in various cases, but most sufficiently in the case of Japhet Thadei Msigwa vs. R (supra) which stated that when Justices of Peace are recording confessions of persons in the custody of the police, the following has to be observed: (i) The time and date of his arrest (ii) The place he was arrested (III) The place he slept before the date he was brought to him. (iv) Whether any person by threat or promise or violence has persuaded him to give the statement (V) Whether he wishes to make the statement of his own free will. (vO That if he makes a statement, the same may be used as evidence against him. 30 I have no doubt, that exhibit Pl passed the stated tests and can therefore be held to be a confession of the offence within the meaning of the law. My examination on the same and based on the evidence of Pw4, the statement was recorded on 6^^ July at 2:30 pm at Mwandiga Primary Court, the accused was informed of the offences of murder against him. He told her, he was arrested on 4^^ July, at about 8.00 pm, and that he was from the police station where he slept before recording the statement. It is also recorded that he was willing to confess. There were no traces of wounds or injuries, Pw4 added. It is clear to me that, the statement narrated the incidents as they happened. It is stated in the statement that the accused knew January had a sexual affair with his wife. According to the evidence he said his wife is Johari Masoud- Pwl4. It was confessed that he aimed at killing January. On that fateful night when they met on the day, stayed together, and went home together. He stayed at her home, food was taken and when it was late at night after they all went to bed, he took the panga that was in the house and went to the room of January. He blew the panga to him and when he was done, his wife (Sara) saw 31 him and as she mentioned him, she was then blown as well. That was a state of chaos and children heard the fracas so was January's mother Tilifela. When he was moving from that room, Tilifela was getting from her room to see what was happening in her son's room, she was also cut, then went to the room where he was sleeping with Joel a brother of January where he also cut him. When moving from that room met a child running to January's room, the same was cut and then went to the room where another child slept with her grandmother Tilifela, she was also cut. When all were cut using the same panga, he left the premises with the panga that was thrown to the bush close to where he was working when feeding Pw3's pigs. According to the extra-judicial statement, the accused admitted to having been arrested on the 4^^ of July at 8:00 pm at Mwanga. He said he was arrested by police officers and one Pata (Pw3). He confessed to the police officer. Two things devolve from exhibiting the extrajudicial statement to believe it Is true or not. One, it has to be corroborated because it was retracted and repudiated. Two, it has to have other information leading to the other facts of the case. 32 Pw4 a justice of the peace is an independent witness. There is no doubt as well that Pw2, Pw7, and Pwl7 are also independent witnesses. But there is a discovery of a panga allegedly used to commit the said murders. The panga is exhibit P4 which was collectively admitted with the remains of a T-shirt and a pair of trousers that belonged to the accused. It was testified that the Panga had stains of human blood, so it was the T-shirt and a pair of trousers that the accused was found wearing. Pwl4 told the court that at the time the accused was arrested, he was found wearing the same clothes which had blood stains. The same according to her were seized from the accused instantly. In terms of exhibit P7 which is the searched order, on 4^^ July 2022 at about 20:00hrs at Mwanga kwa Mchaga Pwl3 seized from the accused one mobile phone-techno T528, with a Vodacom line, a t-shirt, and a pair of trousers - jeans which had blood stains from the accused. It is also shown from the same exhibit that the accused signed and Pwl4. Still, in terms of exhibit P9 another search order, as per evidence of Pwl6 at Kiganza on July a panga with blood stains was found. The accused and Pwl7 among others signed as witnesses. Exhibits P4 33 collectively, P9, and P8 which is a mobile phone were kept at the Bureau of Forensic Evidence at the police station. While exhibits P4 were taken to the Chief Government Chemist Laboratory Authority for analysis of human DNA, the phone was taken for analysis to Vodacom headquarters in Dar essalaam. Along with the above evidence is the fact that the deceased according to Pw5 and Pwl2 died due to severe loss of blood. It is technically called severe hemorrhage. Hemorrhage in medical parlance is an escape of blood from a ruptured blood vessel. It is therefore clear that exhibits P2 collectively and P6 suggest that there was too much blood lost leading to deaths. The evidence was poured to prove that the bodies were found in pools of blood and cut wounds therefore were caused by the sharp object. That is why the panga allegedly used by the accused to commit the offence was taken for DNA analysis. Pw8 tendered a court order that directed that the bodies that were buried be exhumed. The order was issued by the Court of Resident Magistrates of Kigoma on 6^^ July 2022. 34 Pw20 is a dental therapist, he testified that he took samples of human DNA from the bodies that were exhumed in connection to the Kiganza murders. He said he took two teeth, one canine, and an incisor from the left side of the mouth for each body. He did so at the directive of the Government Chemist-Pwll and Dr. Ashrafu-Pw8. After doing so he gave them samples to Magreth Pw9. Similarly, Pw8 took samples of human DNA from the body of a boy at Maweni Hospital mortuary on 6^^ July. The samples taken here were the tooth, hair from the head, and buccal swabs from the mouth, and the same to the bodies at Kiganza on 7^^ July, where he took a tissue from the thigh muscle, (kipande cha nyama katika msuli wa paja) from all six bodies. Pw9 also received swabs from the accused as they were taken by A/Ins. Mihayo. It has been noted that Pwl8 and Pw9 kept exhibits concerning this case before they were ferried for analysis. Pwl8 kept exhibits P4 and P8 as he got them from Pwl9 and Pw20. Pwl9 arrested the accused and got the same exhibit and it was witnessed by Pwl4. Ail the exhibits were given to Pwl3 on 7^^ July. According to the evidence, on the 8^*^ of July Pwl3 handled them to Pwll at the Chief Government Chemist Laboratory in Dar es salaam for analysis. It was the evidence of Pwll that having analyzed them he 35 gave the same to Daniel a police officer from Kigoma police station on 28^^ July 2022. At the police station, they were kept by Pwl8 who handled them to her on 27^^ November when she got the same from the police station for giving evidence in court. It is now settled that exhibits that have been found at the crime scene should be kept and its chain of custody observed to the letter to be believed by the court. The principle of proper chain of custody of the exhibit was propounded in the famous case of Paulo Maduka & Another v. R. Criminal Appeal No. no of 2007 (unreported) in the following words; "By "a chain of custody" we have in mind the chronological documentation and/or paper trail, showing the seizure, custody. control transfer analysis and disposition of evidence be it physical or electronic. The idea behind recording the chain of custody is to establish that the alleged evidence is in fact related to the alleged crime -rather than, for instance, having been planted fraudulently to make someone appear guilty. ...the chain of custody requires that from the moment the evidence is collected, its every transfer from one person to another must be documented and that it be provable that nobody else could have accessed it." 36 The reason behind the rule is to establish a link between the exhibit and the crime and to avoid the possibility of fabrication of exhibits to incriminate the accused. The principle strictly required that the chain of custody in all cases should be through a paper trail. However, the Court of Appeal relaxed the rule in Joseph Leonard 10 Manyota vs. R, Criminal Appeal No. 485 of 2015. It is therefore settled that the relaxed rule excludes exhibits that cannot be easily tempered. I believe the case at hand has exhibits that cannot be easily tempered. It is safe based on the nature of the exhibits to prove the chain of custody by oral evidence. In Issa Hassan Uki v. R., Criminal Appeal No. 129 of 2017 (unreported) the Court stated as hereunder: In cases relating to chain of custody it is important to distinguish items that change hands easily in which the principle stated in Paulo Maduka and followed in Makoye Samwel @ Kashinje and Kashindye Bundala would apply. In cases relating to items that cannot change hands easily and therefore not easy to temper with; the principle laid down in the above case can be relaxed 37 There is no doubt that exhibits P4 and P8 were duiy obtained and the integrity of extraction, transfer, analysis and ultimately being tendered in court cannot be questioned. Pwll who is the government chemist, analysed exhibit P4. Exhibit P5, a Forensic DNA profiling test found that the thigh tissues muscle, teeth, and hair were not only from human beings but also were from the deceased persons namely Tilifela Toyi, January Musa, Sara Dunia, Joel Musa, Christina Lazaro, James January and James Joel. It was found that the t-shirt, pair of trousers, and a panga had human DNA for different people both male and female. Based on the report, Pwll pointed out further that; I. The thigh muscles tissue and teeth of Tilifela Toyi, January Musa, Sarah Dunia, and James Joel had a matching DNA profile with those found in the panga and a pair of trousers and a t-shirt that were found with the accused. ii. The buccal swab taken from James January had matching DNA profiles as that found in the panga, t-shirt, and pair of trousers iii. Further, the DNA profile in the t-shirt and pair of trousers matched with the buccal swab taken from Peter Moris. 38 iv. The DNA profiling test did not show any matching of the sample taken from Joel Musa and Christina Lazaro. According to her, chances of the DNA profiling test errors are almost negligible since it is one in a billion. This means the results stated are as accurate. I have shown, how the same was found is explained by the evidence of Pw2, Pw4, Pw7, PIO, and Pwl6 to mention a few. That it was found when the accused led the investigation team to where it was thrown. Still, Pwl4 and the police officers said, the clothes that the accused was wearing at the time of his arrest had stains of blood that matched with that found in the panga and the deceased persons mentioned. The clothes as per the DNA belong to him based on the buccal swab taken from him. But all this notwithstanding, still there is evidence of Pwl5 who said, she saw the accused with January Musa an evening preceding the crime night. She said they headed to the premises where the deceased January lived. She also said she had sold a mobile phone, techno-T528, exhibit P8 which was also in terms of evidence of Pwl4 and Pw3, among others was found with the accused at the time he was arrested. Pw21, tendered exhibit P12 which is a phone analysis report. His evidence was that the same phone was used by the accused on the 3"^ and 4^*^ of July 2022. Pwl4 testified he had 39 no phone, which is why he used January's phone to connect with her. Registering a phone number and using the phone alleged from the deceased supports the prosecution case that after killing the deceased persons, he left with the said mobile phone. It is true also that the same phone was once the property of Pwl5 in terms of P12. There is truth therefore in the evidence that it was sold to Sara Dunia wife of January by Pwl5. Based on the above analysis of the DNA evidence and mobile phone analysis. I am convinced that the confession the accused made is true. It is true because it corroborated and had information that led to the discovery of important evidence relating to the case such as the panga. The clothes he was wearing added salt to an injury when matched with the blood, teeth. and thigh muscle tissues. To support this proposition, the cases of Mwita Kigumbe Mwita and Another V R, Criminal Appeal No. 63 of 2015, and Ibrahim Yusuph Calist @ Bonge and Three Others v R, Criminal Appeal No.204 of 2011, were referred, where it was held by the Court of Appeal that; "There are several ways in which a court can determine whether or not what is contained in a statement is true. First, if the confession 40 leads to the discovery of some other incriminating evidence. (See Peter Mfa/amagoha v Republic), second; if the confession contains a detailed, elaborate relevant, and thorough account of the crime in question, no other person would have known such details but the maker (See William Mwakatobe v Republic), third, since it is part of the prosecution case, it must be coherent and consistent with the testimony of other prosecution witnesses, and evidence generally. (Shaban Daudi v Republic, - especially with regard to the centra! story (and not In every detail) and the chronology of events. And lastly. II the facts narrated In the confession; must be plausible. The evidence above, therefore, falls squarely, in the decision of the court in respect of the confession statement. Without conflict, it was clear to me that the confessions were proper and told things in the way they happened. Taking the same as it is sufficiently, one concludes that since the best evidence comes from the persons who confess to having committed the offfence as held in the case of Ally Mohamed Mkupa v R, Criminal Appeal No. 2 of 2008. In my view, even without an extra judicial statement and other confessions made to the police officers and other persons, still there is ample evidence 41 based on the forensic DNA profiling test on the t-shirt a pair of trousers (exhibit P4), and a mobile phone exhibit P8 to prove that the evidence available irresistibly point at the guilty of the accused person. Cumulatively, the evidence has shown without doubt that the accused committed the offence charged. It is therefore found that the accused is guilty of seven counts of murder contrary to section 196 of the penal code. and is convicted of 7 murder counts as charged. ACK. RWIZILE JUDGE 01.02.2024 42