the republic vs mohamed yassin senjele mudy bonge erick avelin mbilinyi 2023 tzhc 15 18 january 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE NO. 48 OF 2022 THE REPUBLIC VERSUS MOHAMED YASSIN SENJELE @ MUDY BONGE....................... 1st ACCUSED ERICK AVELIN MBILINYI............. ...................... ...... ...... ........... 2nd ACCUSED JUDGEMENT Date of last Order: 28th December, 2022 Date of Judgement: 18th January, 2023 U.E. Madeha, J. To begin with, the accused persons that is none other than; Mohamed Yassin Senjele @ Mudy Bonge and Erick Avelin Mbilinyi are charged with the offence of murder contrary to sections 196 and 197 o f the PenaI Code (Cap. 16, R .E 2019). As a matter of fact, it is alleged by the prosecution's side that on 10th July, 2021 at Mtyangimbole Kijiweni area within Songea District in Ruvuma region the accused persons murdered one Andrew Agustino Nchimbi @ Benga. It is worth considering that, when the charge was read to the accused persons, they denied having murdered the deceased. During the hearing, the prosecution was represented by none other than Mr. Grey Uhagile and Mr. Frank Chonja while advocate Eliseus Ndunguru represented the accused persons. In a bid to prove the charge for murder against the accused persons, the prosecution paraded a total of seven (07) witnesses and five (05) exhibits which are documentary and physical that is; the motorcycle exhibited as exhibit PI, the sketch map of the crime scene exhibited as exhibit P2, the motorcycle registration card exhibited as exhibit P3, Post Mortem Report exhibited as exhibit P4 and the certificate of seizure exhibited as exhibit P5. Briefly, the evidences of the prosecution are as follows; Firstly, PW1, G. 8051 D/CPL Tryphone in his sworn testimony testified that he is a Police Officer working as an investigator at Songea Central Police Station. To add to it, he has acquired investigation knowledge from various colleges such as Moshi Police College and Zanzibar Police College. In that case, as an investigator he is duty bound to find the information on the cases reported at the police stations, to make 2 investigations on the reported offences, to take the suspects to the Court and keep the exhibits collected in the course of making investigations until they are required as evidence before the Court of law. It is important to note that, on 3rd August, 2021, he was at his working place that is his office with his workmates. He was assigned with a case file number S0/1R/2018/2021 so as to investigate on a case of causing grievous harm caused by fire burns. Additionally, the victim on that case file was Agustino Nchimbi who was burnt by a petrol fire and at that time he was admitted at Ruvuma Regional Referral Hospital. Also, there were two (02) accused persons; Mohamed Yassin Senjele @ Mudy Bonge and Erick Avelin Mbilinyi. It is true that, he managed to arrest the accused persons and they denied to have involved in causing grievous harm to the victim. Actually, after interrogation he was sent to the crime scene where the sketch map of the crime scene was drawn. Basically, on 10th August, 2021 at around 14:30 hours, while at Songea Central Police Station, DC. Stella who is his co-investigator came with an exhibit which is a red motorcycle. He received the exhibit and marked in the exhibit register book. On the same note, the motorcycle has 3 registration number MC 742 CRF, make Haojue and it was directly connected with the offence of causing grievous harm. It is important to note that, on 14th January, 2022, he was informed that the victim of that case, one Andrew Agustino Nchimbi @ Benga has died at Ruvuma Regional Referral Hospital where he was getting treatment. Having received such shocking news, he went to the crime scene and drew a sketch map of the crime scene. In addition to that, after drawing the sketch map of the crime scene, he accompanied with his colleagues to the hospital for more investigation. Principally, while at the hospital the doctor conducted a Post-mortem Examination on the deceased's body. The accused persons cautioned statement were recorded but they denied having caused murder and a charge of causing grievous harm was dismissed and they were charged with the offence of murder. Additionally, PW1 managed to identify the red motorcycle with registration number 742 CRF make Haojue and he prayed for its admission as an exhibit. The motorcycle was admitted as an exhibit PI. Also, PW1 tendered a sketch map of the crime scene which was admitted as an exhibit P2. It was admitted despite the objection from the learned counsel for the defence side that the name of the deceased on the sketch map is different from the name written in the information file in Court. The objection was overruled by the Court. Secondly, PW2, Ado Nchimbi, in his sworn testimony testified that on 11th July, 2021 at around 05:00 hours in the morning he was at his home at Ruhuwiko street and he was informed through a mobiie-phone call by a person who is unknown to him that his young brother (the deceased) was admitted at Ruvuma Regional Hospital after being burned with petrol oil fire. After getting such terrifying information he went to Ruvuma Regional Hospital and found that the deceased was badly injured. Notably, most of his parts of the body were badly injured except at the back where it was not injured. As a concerned brother, he co-operated and worked in hand in hand with the doctors in making sure that deceased or victim at that time is receiving treatment accordingly. As a matter of fact, on 11th August, 2021 the victim was referred to Peramiho hospital since his condition was worse. Having arrived at 5 Peremiho hospital the victim got treatment for some days without improvement. The victim was referred to another hospital in Mbinga District known as PCMC. In addition, after some days they found that treatment had proved failure as a result they decided to go back to Ruvuma Regional Hospital where the victim died after four (04) days. Moreover, PW2 further testified that he was informed by the doctor about the death of the deceased and the post-mortem examination was conducted by the doctor and the body was given to them for burial. Thirdly, PW3, Adam Emilian Duwe in his sworn evidence testified that he lives at Mtyangimbole and he knew the deceased since he was engaged in the motorcycle business at Mtyangimbole. It is a fact, on 2nd July 2021, he humbly requested the deceased to give him a motorcycle for business and they agreed that he will be paying an amount of Tanzania shillings seven thousand (7,000) per day for ten (10) days. It is true that the agreement was witnessed by his wife. As a matter of fact, the motorcycle was given to him on 10th July, 2021 after paying the renting price. To add to it, the hired motorcycle was red in colour with registration number MC 742 CRF made Haojue. Basically, 6 the motorcycle was given to him at Songea town and he fueled it with petrol. It is true that, he then went at his home at Mtyangimbole. In the same day during night hours at around 22:00 hours while at his residence, the accused persons together with other three (03) people went and asked him if he knew the deceased that is none other than; Andrew Agustino Nchimbi. In short, the answer was yes. He told them that he knew him, since he was actually the one who gave him the motorcycle. To add to it, at that time the deceased was with the accused person who was tied with a rope on his hand and feet. He asked the accused person who are they and they told him that they are Police Officers and National Security Officers. In that case, he requested for their identification cards but he was never given and they ordered him to go inside and put on clothes since he was wearing a towel. Notably, while he was inside, he noticed that Andrew Agustino Nchimbi @ Benga was set on fire and he was burning. His wife saw the accused persons when they iit fire on the deceased's body. He had an ample time to identify the accused persons since they entered inside his house and he had conversations with them which made him to familiarize with them. He further added that the lights from the two solar bulbs which 7 were outside and other bulbs were inside the house and they enabled him to identify the accused persons. Also, the accused persons went with a car which had enough light which enabled him to see them properly. In fact, the first (1st) accused told him that he was in possession of the stolen motorcycle and he was supposed to be taken to the police station if he cannot give them an amount of Tanzanian shillings five hundred thousand (500,000). On the same note, he told them that he doesn't have that amount of money. It seems to be true that they didn't agree with him so his wife went to borrow an amount of Tanzanian shillings two hundred thousand (200,000). That amount of money was handed over to the first (1st) accused person. After a long interrogation the first accused person received that amount of money and they told him that he was to report at Songea Central Police Station the next day. On the other hand, the second (2nd) accused person took the motorcycle with registration number MC 742 CRF made Haojue. To add to it, the first (1st) accused person took the deceased in the car and they left the crime scene. It is true that, before leaving the crime scene they requested for water to put off the fire which was still burning on the deceased's body. As, a matter of fact, PW3 managed to identify the accused persons who were sitting at the Court dock. Furthermore, PW4, Aveline Lucas Komba, who is the resident of Mtyangimbole testified that she lives with her husband (PW3). On the material date at around 22:00 hours while at their residence, they heard a car parking outside their house. In fact, two (02) people came out of the car. They directly moved towards the door of their house looking for her husband and they ordered him to go out of their house. Immediately after going outside, PW3 was told that the deceased had stolen a motorcycle which he was actually in possession of it. The motorcycle was rented by PW3 from deceased. It was a red motorcycle with registration number MC 742 CRF make Haojue. In addition, PW3 was ordered to hand it over to the accused persons. It is true that, they commanded and demanded to be given that particular motorcycle. On the same note they were given the motorcycle make Haojue with a red colour. Notably, PW4 testified further that she saw the first and second accused persons forcefully pushing the deceased to get out of the car. They managed to identify the deceased person since he was known by 9 them, he was the one who gave his motorcycle to PW3. She witnessed the first accused person assaulting the deceased who was crying and stating that "Mudy Bonge is killing me". In addition, she also saw the first (1st) accused person pouring petrol oil on the body of the deceased. After sprinkling the deceased person with petrol oil, the first accused person put his hands in his trouser pocket and take out a match box. The first accused person continued to pour petrol oil on the body of the deceased person and lit fire by using a match's stick. She called his husband (PW3) and told him that someone was burning outside. PW3 came and found the deceased burning and there were large flames of fire. After some time, she was ordered by the first (1st) accused person to give him some water in order to set off the fire. She immediately responded positively by bringing two buckets of water. She gave him the first bucket of water but the fire was not set off and then she added the second bucket of water and fire was set off. Also, she testified that the second (2nd) accused person with another unknown person assisted the first (1st) accused person at the crime scene by bring the deceased who was in the car they came with and he was tied with a rope. In feet, the second (2nd) accused person was the one 10 responsible for taking the motorcycle from the crime scene while the first accused person and others left the crime scene by using the car. Furthermore, PW4 testified that she was an eye-witness that is she witnessed all the incidents with her naked eyes as it took an ample time with the help of the light from the two solar bulbs which was outside their house. To crown it all, the accused person came with a car and its front lights were on, giving enough light for her to identify the accused persons properly and notice what was happening. Moreover, PW4 added that even the petrol fire that was set on the body of the deceased person brought large flames which added more lights and enabled her to identify the accused persons. It is worth considering that, PW5, Magreth Steven Haule, in her sworn testimony testified that she lives at Mkako in Mbinga. On 11th June, 2021 she was told by his son that his motorcycle with registration number MC 742 CRF make Haojue was taken by Andrew Agustino Nchimbi and his whereabouts were not known. She reported the matter to the ten-cell leader and at Kigonsera Police Station about the lost motorcycle. In addition, measures to find it were taken and he gave a notice that whoever will find her motorcycle will be paid Tanzania shillings 200,000/=. ii On the other hand, on 11th July, 2021, she was informed by Fabian Tilla through a mobile-phone call that the motorcycle was found at Llzabonl in Songea. She made efforts to go to Songea on the same day and she arrived during non-hours and she was welcomed by Mohamed Senjele @ Mudy Bonge, Fabian Tilia, Siza Nchimbi and another person whom she didn't identify by his name. In fact, the first (1st) accused person gave her a motorcycle and in return she was ordered to pay Tanzanian shillings four hundred and twenty thousand (420,000/=) to be given her motorcycle. As a result, after negotiating for a long time she managed to pay that amount of money and it was paid by instalments. As a matter of fact, PW5 identified the motorcycle by its colour and registration number. Besides, PW6 Dr. Sania Mjaka, in her sworn testimony testified that she is a Medical Doctor working at Songea Regional Hospital. On 14th January, 2022 while at her job she was ordered by the doctor in-charge that she must conduct a Post Mortem Examination on the body of a person which was in the morgue/mortuary. For this reason, she went to the morgue and met with the morgue attendant, relatives of the deceased and Police Officers. Mainly, the 12 relatives of the deceased person identified the body of the deceased person before she conducted the Post-mortem Examination. Principally, the body had injuries caused by petrol oil fire. Above all, after conducting the Post-mortem Examination, she prepared the report, Basically, PW6 identified the report and she requested to tender it in Court as an exhibit and it was admitted as an exhibit P4. PW6 further testified that from the findings on the report, the death of the deceased person was due to bacterial infections which were spread all over the body due to the injuries caused by fire burns, The injuries were found almost in all parts of the body and he was in a bad condition. Likewise, PW7 WP 11593 D/C Stella in her sworn testimony testified that she is working at Songea Central Police Station as an investigator. As the investigator she was given a case file to conduct investigations and the offence was causing grievous harm to the deceased person; one Andrew Agustino Nchimbi @ Benga by burning him with petrol fire. Notably, the victim was Andrew Agustino Nchimbi and there were two (02) suspects, who are none other than, Mohamed Yassin Senjele @ 13 Mudy Bonge and Erick Avelin Mbilinyi. In regard to that, the first (1st) accused person was arrested and they went to the crime scene whereby the sketch map was drawn. In fact, they were directed by Avelina Komba (PW4). It is important to note that, after drawing the sketch map, they went at Ruvuma Regional Hospital whereby they met Andrew Agustino Nchimbi. It is true that, they recorded the dying declarations of the accused person who told them that the crime scene was at Mtyangimbole within Songea District and he was able to narrate how the offence was committed. On 06th August, 2021 the second (2nd) accused person was arrested and the cautioned statement was written and in his cautioned statement he stated that the motorcycle with registration number MC 742 CRF make Haujoe is the property of Magreth Haule (PW5) and it was with her. Basically, the motorcycle was seized and a certificate of seizure was filled and signed. On the same note, PW7 identified the motorcycle (exhibit PI) and she prayed to tender the certificate of seizure as an exhibit and it was admitted as an exhibit P5. As far as I can see, when examined by the defence counsel she stated that she went to the crime scene on 03rd August, 2021 together with 14 the first (1st) accused who was the suspect of the offence of causing grievous harm. After the closure of the prosecution case the Court found the prosecution has established the prima facie case against the accused person. It is important to note that before the closure of the prosecution case the accused persons filed a notice of intention to use the defence of alibi. The accused persons were given their right to defend themselves. It is true that, they gave their evidence under oath and they never called another witness other than themselves. It is worth considering that, the first (1st) accused person (DW1, Mohamed Yassin Senjele @ Mudy Bonge) in his sworn testimony stated that he resides at Ruvuma Chini Street in Songea District within the region of Ruvuma. In fact, he stated that he doesn't know a person known as Mudy Bonge and he is in Court because he was arrested by a person called Tryphone that is (PW1). He added that, on 02nd August, 2021 he was sent to the Police Station. In addition, he was arrested with other people such as the second 15 (2nd) accused person, Mwanjile and Zero. On 10th August, 2021 they were brought before the Court for the charge of causing grievous harm and armed robbery. Basically, they were told that the victim was Agustino Andrew Nchimbi whereby they robbed a motorcycle, a Techno mobile phone and money amounting to Tanzanian shillings one million and three hundred thousand (1,300,000). As a matter of fact, they stayed in custody up to 19th January, 2022 when the charge was dismissed. To add to it, they were arrested and later charged for the offence of murder which they stand charged in which they were told that they killed one Andrew Agustino Nchimbi on 10/07/2021. To add to it, DW1 further stated that he never knew a person called Andrew Agustino Nchimbi and at the material time, he was not at Mtyangimbole but he was at his home in Ruvuma Chini Street. In fact, he was asleep with his dear wife called Asha. Moreover, after their arrest his wife never went neither at the Police Station or at the Court to see him. Also, he stated that PW3 and PW4 told the Court that they went with a car although he had no such kind of car. It is true that he has a car make 1ST. Furthermore, DW1 also stated that PW3 and PW4 testified that they identified the accused persons by using the front light of the car lamps however they failed to explain how intense the 16 light was. Also, DWI stated that Magreth Haule that is, (PW5) told the Court that she gave him an amount of Tanzanian shillings two hundred and fifty thousand (250,000) even though she failed to give a mobile phone print out in order to prove that she really had conversations with him as she had stated earlier that she had phone conversations. Basically, DWI stated that the motorcycle card was received by the investigator while the motorcycle (exhibit PI) was already at the police station. Moreover, DWI stated that PW6 (the doctor) told the Court that she saw the deceased's body was burnt and his blood contained bacteria. However, naked eyes cannot see bacteria and it seems that PW6 has no qualifications. Similarly, there was no PF3 which was tendered as an exhibit to prove that the deceased got treatments at the hospital. Lastly, he prayed for the mercy of the Court to set him free as there is a big difference between the charge and the evidence given by the prosecution side. On the same note, when cross examined by the prosecution side, he stated that he never knew PW1 before the arrest. In fact, he doesn't know where PW1 got his mobile phone number he used to call him. On the contrary, the second (2nd) accused person that is none other than; (DW2, Erick Avelin Mbilinyi) in his sworn testimony stated that on 17 10th July, 2021 he was at Mtyangimbole with his wife called Immaculata. Since he was arrested, he doesn't know where his wife is. Also, it is not true that he killed the deceased person and he doesn't know PW4, On that particular incident day and time, he was at home spending the night together with his dear wife. Basically, DW2 further stated that there is no evidence to prove that he burnt the deceased with petrol oil fire as there is no witness who testified that he/she saw him. Also, he stated that PW3 and PW4 failed to state what kind of light that enabled them to identify him at the crime scene. Although, when cross-examined by the prosecution's side, he stated that he resides at Mtyangimbole and PW4 also resides at Mtyangimbole. It is worth considering that, the accused persons stand charged for the offence of murder contrary to sections 196 and 197 of the Penal Code (supra). According to section 196 of the Penal Code (supra) the offence of murder is said to be committed when an accused person, with malice aforethought, causes the death of another person by an unlawful act or omission. Similar definition is given in Black's Law Dictionary (9th Edition, West Publishing Com, 2009) to be the killing of a human being with malice aforethought. The Black's Law Dictionary (supra) also 18 describes malice as a mental element for the offence of murder which encompasses the intention to kill, inflict grievous bodily harm or the intent to commit a dangerous felony. To add to it, according to section 200 of the Penal Code (supra) malice aforethought can be proved by the intention to cause death or grievous harm to a person whether such person is the person who actually killed or not or acting with knowledge that the act or omission causing death will probably cause the death or grievous harm or an intention to commit the offence. As much as the evidence is concerned, it can be grasped from the evidence given by both sides before this Court. From those evidences there is no dispute that Andrew Agustino Nchimbi is dead and he suffered unnatural death. Considering the evidence given by PW3 and PW4 in this case, the accused persons were seen at the crime scene, pouring petrol oil on the deceased's body and lit fire. Also, they both witnessed the deceased crying in agony before DW1 ordered for water from PW4 in order to put off the petrol fire. 19 To crown it all, the accused persons told PW3 and PW4 that they have arrested the deceased since he has stolen the motorcycle (Exhibit PI) which was given to PW3 by the deceased and later taken by the accused persons. In addition, PW5 in her sworn testimony stated that exhibit PI is her property and it was stolen by the deceased. In fact, the first (1st) accused person managed to return it to him and she paid an amount of Tanzanian shillings four hundred and twenty thousand (420,000) to DW1 and his colleagues. On the same note, it is the same motorcycle which PW3 and PW4 testified that the accused persons went to take at their home. In her testimony, PW5 explained that she clearly identified the first (1st) accused person (DW1) as she has an ample time to be with him when she was given the motorcycle (exhibit PI) whereby DW1 introduced to her by his name. According to the evidence given by PW7 who is an investigator the motorcycle (exhibit PI) was found in the hands of PW5. In fact, it was DW1 who told PW7 that exhibit PI is in the hands of PW5. As a result, it 20 was taken and brought to the Police Station whereby it was used as an exhibit in this case. Principally, the Post-Mortem Report given by PW6, who is a professional Medical Doctor reveals that after death the body was found to be badly injured and the death was caused by septicem ia due to septic burn wound (3rd degree burn) which caused bacterial infections to the blood system in the deceased's body. To put It in a nutshell, according to PW7 who was among the investigators in this case, she managed to meet the deceased before his death while he was at Ruvuma Regional Hospital. It is true that, the deceased told her that the accused persons are the one who caused grievous harm on his body by burning him with the petrol fire. Consequently, the evidence which are similar to that given by PW3 and PW4 who eye-witnessed the accused persons. Additionally, PW2 who is the deceased's brother also told this Court that he saw the deceased person while at the hospital. In that regard, he was badly injured and he told him that he was burned by petrol oil fire set by the first accused persons. 21 Moreover, PW1 who is a Police Officer told this Court that he was the one responsible in the arrest of the accused persons. Notably, before the death of Andrew Agustino Nchimbi @ Benga the accused persons were charged with the offence of causing grievous harm however few months later the charge was dismissed. On the same note, the charge for murder was laid against the accused persons. It is important to note that, in their defence the accused persons testified that they were not at the crime scene but they were at their homes with their wives. In fact, they don't know what happened and they never knew the deceased person. As far as criminal case (s) are concerned, standard of proof is beyond reasonable doubt and the burden lies to the prosecution side and it never shifts to the accused person. On the other hand, the accused is only required to raise reasonable doubt. Reference is made to the case of Jonas Nkize v. Republic (1992) TLR page 213 -214 where it was held that: 1The general rule in crim inal prosecution that the onus o f proving the charge against the accused beyond reasonable doubt lie s on the prosecution ...' 22 Similarly, in the case of Christian Kaale and Rwekiza Bernard v. R [1992] TLR 302, the Court held that: - 'An accused ought to be convicted on the strength o f the prosecution case'. The duty of the prosecution to prove its case is in two (02) folds; firstly, that a criminal act or offence was committed (or omitted), and secondly, that it is the accused who committed (or omitted) that offence. This stance is well elaborated in the case of Malik George Ngendakumana v. Republic, Criminal Appeal No. 353 of 2014 (Court of Appeal of Tanzania), in which the Court inter alia held that: 'The principle o f iaw is that, in crim inai case, the duty o f the prosecution is twofold; one, to prove that the offence was com m itted, and two, that the accused person is the one who com m itted it'. Basically, in the case at hand having scrutinized the evidence of both parties, there are three (03) major issues to be determined; i. Whether the alleged deceased person died and his death amounted to murder? 23 ii. Whether there was a malice aforethought committed with common intention among the accused persons to execute an unlawful purpose? iii. Whether the prosecution has proved the case against the accused persons beyond reasonable doubt? To start with the first (1st) issue of whether the deceased person has died and his death amounted to murder, from the evidence given by PW2, PW6 & PW7 there is no doubt that Andrew Agustino Nchimbi is dead. In fact, from the evidences of the prosecution side it's clear that the death was unnatural. It is worth considering the fact that, PW6 who is a professional Medical Doctor testified that the death was caused by septicem ia due to a septic burn wound ( J d degree burn) which caused bacterial infections in the blood system of the deceased's body through the injuries which were caused by petrol fire burns. As a matter of fact, the prosecution's evidence as testified by PW3 and PW4 there is no doubt that the burns on the deceased's body were caused by the accused persons who set petrol fire on the body of the deceased. It is worth considering that, the incident occurred at night, but with the aid of solar bulbs light that were inside and outside the house of 24 PW3 and PW4, the front lights of the car which provided a clear light, and the light from the burning oil fire on the body of the deceased persons, PW3 and PW4 clearly identified the accused persons as they were familiar with them. They clearly saw the accused persons when they were in the corridor of their house when the accused persons entered to look the motorcycle. Also, outside their house there were two (02) bulb lights that enabled them to see the first (1st) and second (2nd) accused persons. Also, PW3 and PW4 stayed together with the accused persons for a long time as the first (1st) accused person asked for money, which kept them at the crime scene for some hours waiting for money. Thus, sitting together for a long time enabled PW3 and PW4 to recognize the accused persons. Above all, the identification evidence is also connected and corroborated with the testimony of PW5, who was the owner of the stolen motorcycle with the same registration number given by PW3 and PW4. The motorcycle was lost and she made an announcement that the one who will bring it will be paid. It is true that, the first (1st) accused was the one who met PW5 and handed over the motorcycle to him in return he was given a certain amount of money. 25 Therefore, there is connection of the events which indicates that the first accused person was the one who went to PW3 and PW4 house to take the motorcycle and set petrol oil fire on the body of the deceased. Basically, if you carefully examine this case, you will find that the deceased was the one who rent a motorcycle with registration number MC 742 CRF (Exhibit PI) to PW3 at a cost of seven thousand (7,000) shillings per day. It is important to note that, the accused persons and their colleagues who were not arrested went to PW3 and PW4 at night with the deceased and they set petrol oil fire on the body of the deceased person by using oil. As a matter of fact, by connecting those evidences, I realize that they link the accused persons to the incident of burning the deceased because; One, they were clearly identified by PW3 and PW4 in the incident date when they took the motorcycle, and, Two, they were seen for the second time in a broad daylight by PW5, when they gave her the motorcycle which was taken from PW3 and PW4. The evidence given by PW5 credible as she met with the first accused person during daytime and they stayed together to negotiate for money for some time. Eventually, there is no doubt that the identification made by PW5 is consistent with the identification given by PW3 and PW4. The issue 26 of identifying the accused persons by PW3, PW4 and PW5, the evidence is absolutely watertight to prove beyond reasonable doubt. To put more emphasize reference is made to the case of Waziri Amani v. Republic (1980) TLR 250, in which the Court set up standard parameters that must be met on the identification of the accused person during night time. It is obvious that, the required parameters are; the proximity to the person being identified, the source of light and its intensity, the length of time, the person being identified was within view and whether the person is familiar or stranger. Basically, in the case at hand there is no doubt on the issue of identification since PW3 and PW4 were not strangers to the accused persons, there were enough light and the witnesses had ample time to identify the accused persons as the incident took more than an hour according to the prosecution evidence. On the same note, according to PW6, the burnings on the body of the deceased person were the cause of the infections in the blood system which led to his death. 27 On the issue of whether the accused persons had malice aforethought and common intention to execute an unlawful purpose, this Court made reference to the case of Makungu Misalaba v. The Republic, Criminal appeal No. 351 of 2013, whereby the Court of Appeal of Tanzania while referring to the case of Enock Kipela v. R, Criminal Appeal No. 150 of 1994, stated that: 'Usually, an attacker w ill not declare h is intention to cause death o r grievous harm. W hether or not he had that intention m ust be ascertained from various factors, including the follow ing: one, the type and size o f weapon, if any, used in the attack; two, the am ount o f force applied in the assault; three, the p art or parts o f the body the blow or blow s were directed a t or in flicted on; four, the num ber o f blows, although one blow may, depending upon the facts o f the particular case, be sufficient fo r this purpose; five, the kind o f injuries inflicted; six, the attackers utterances, if any, made before, during or after the killin g ; and seven, the conduct o f the attacker before and after the killin g '. In my humble opinion, I am inclined to follow the guidelines outlined above in determining the presence of malice aforethought, in respect to the size and type of weapons used to attack the deceased person. 28 It is worth considering that, according to the testimony given by PW3 and PW4, who were present at the crime scene the first accused used the petrol oil to set fire one the body of the deceased. They saw the first (1st) accused open the back door of the car and take the petrol oil. As a matter of fact, the first (1st) accused poured the petrol oil on the deceased's body and lit fire and the fire burned the deceased's body. Moreover, after some time the first (1st) accused asked for water from PW4 to put out the petrol fire. Actually, PW4 brought two buckets of water and the first accused person poured on the deceased's body and the fire was set off. To the best of my knowledge, when I look at the type of fire that was set on the body of the deceased, it was a very dangerous weapon, consider that it was night time. In that regard, the weapon used was beyond humanity and the accused persons knew what they were doing. Therefore, due to this act of transcending humanity, I see that the accused persons used a dangerous substance by burning the deceased with petrol fire. It is obvious that, they aimed to set fire on the deceased body, something the clearly knew could cause death. The amount of force applied by the accused persons to the body of the deceased was very great. 29 The second accused person in this incident participated by taking the deceased from the car while he was tied by a rope. He facilitated the first (1st) accused person to set petrol fire on the body of the deceased person. It is a fact that, the first (1st) accused aimed to carry out the incident of setting the deceased on fire so that he could get the motorcycle that is why he went with petrol oil which was poured on the deceased's body before fire was lit. To add to it, when they came out after setting him by petrol fire the second (2nd) accused entered into the house of PW3 and PW4 and they took the motorcycle. Actually, this was after asking PW3 for money and introducing themselves as Police Officers and National Security Officers. To crown it all, the evidence shows that the deceased died due to the injuries caused by petrol fire which was set by the first accused person. Moreover, considering the kind of injuries inflicted, the testimony of the Medical Doctor (PW6) shows that the deceased died from petrol oil fire injuries. Moreover, the conduct of the attackers before and after the incident, all the evidence of the prosecution shows that, after burning the deceased with petrol oil fire the testimony shows that the first (1st) accused 30 and his colleagues who were with him at the crime scene they could not help him to take him to the hospital or to monitor his treatment at the hospital because they were clearly aware that the level of fire at which they burned the deceased was dangerous. Therefore, the actions shown by the accused before and after the incident were not good. As a result, their actions shows that the accused persons intended to kill the deceased by burning him with petrol oil fire. It is worth considering that, the accused's reaction after the incident clearly shows that all accused had the intention of killing the deceased with malice aforethought Apart from that, from the prosecution's evidence, it is my view that the accused persons are the one who set petrol oil fire on the body of the deceased as testified by PW3 and PW4. According to PW2, PW3, PW4 and PW6 who is a professional Medical Doctor the deceased was badly burned and the injuries caused bacterial infections in the blood system of the deceased that led to his death. It is clear from the prosecution's evidence given by PW3 and PW4 that DW1 and DW2 (the accused persons) were the one who brought the deceased person at the crime scene and DW2 with other people who were 31 not identified or arrested assisted the first (1st) accused person to fulfill the commission of the act by setting petrol oil fire on the body of the deceased and they told them that the deceased had stole the motorcycle which was in the hands of PW3. Principally, I am in the view that the acts of the accused persons at the crime scene proves that they had a common intention of killing or cause grievous harm to the deceased, who they were accusing of being a thief. Thus, there is no doubt that they had malice aforethought and common intention to cause the death of the deceased. In fact, from the evidence of the prosecution side, it is clear that the standards set in the case of Enock Kipela v. R (supra) are met. Moreover, considering the issue of whether the prosecution side has proved the case against the accused person beyond reasonable doubt, upon diligent and keen scrutiny of the evidence in this matter, there is credible evidence that the accused persons were the people who set the petrol fire in the body of the deceased person which led to the injuries in the body of the deceased. As a result, the injuries led to bacterial infections in the blood system in the body of the deceased which resulted to his death. 32 To add to it, the duty of this Court is to examine the evidence and find whether there are major contradictions, which can be resolve in favour of the accused persons. As far as I am concerned, I personally have weighed the prosecution evidence alongside the defence which does not deny the fact that the deceased was murdered. I reckon, the total of all evidence tricked to me that is:- PW1, PW2, PW3, PW4, PW5, PW6, and, PW7, are all truthful. The contradictions in this case are on the names of the deceased person and the first accused person. To start with, the first (1st) accused's his real name is Mohamed Yassin Senjele, however some witnesses have been identifying him as Mudy Bonge while others know him as Mohomed Senjele and Mohamed Yassin Senjele @ Mudy Bonge as written on the information filed before this Court. It is worth considering that, PW2, PW3, PW4 and PW5 identified the first (1st) accused person as Muddy Bonge; however, at some time, they referred to him as Mohamed Yassin Senjele. In fact, PW3 mentioned the first (1st) accused as Mohamed Yassin Senjele. In fact, all these are his names, and he is known by those names as identified by witnesses. The 33 contradictions in the names of the first (1st) accused, who has been referred as Mudy Bonge several times by the witnesses and sometimes they referred to him as Mohamed Yassin Senjele. I have carefully looked at these contradictions and realized that they do not match directly to the root of the case as much as the part of the first (1st) accused is concerned because he has so many names which makes not easy for a layperson to know all of them. In fact, the contradictions cannot cause justice not to be done. Basically, the biggest issue confronting the accused is the issue of identification, whereby he was identified at the crime scene while carrying out the incident of setting the deceased's body on fire. It is true that, he was recognized by using the light as I have thoroughly described above. In addition, the deceased's motorcycle, which he rented to PW3, the accused took it from PW3's hands in front of PW4 and handed it over to PW5. Consequently, I hereby mark that all the names belongs to the first accused person; since the credibility and demeanor of the witnesses are firm. Furthermore, if you consider the names of the deceased. I mark that the name of the deceased as in the information, the Post-Mortem Examination Report, and the sketch map of the crime scene are all names 34 of the deceased because they were converted as follows: Andrew Agustino Nchimbi and Agustino Andrew Nchimbi. In that regard, I checked thoroughly so as to find if the contradictions in the deceased's names goes to the root of the case and I find that they do not because they are all the deceased's names. As a matter of fact, I find that the contradictions on the names of the first (1st) accused person and the deceased did not go directly to the roots of the case. To crown it all, reference is made to the Case of Mohamed Said Matula v. The Republic (1995) TLR 03, the Court of Appeal of Tanzania held that: "Where the testim onies by witnesses contain inconsistencies and contradictions, the Court has a duty to address the inconsistencies and to resolve them when possible; else the Court has to decide whether the inconsistencies and contradictions are only m inor or they go to the root o f the m atter." See also the case of Alex Kapinga and Others v. Republic, Criminal appeal No. 252/2005 (Court of Appeal of Tanzania), in which the Court in ter a lia held that: "The fact that there are discrepancies in w itness testim ony does not make the testim ony o f that w itness inadm issible". 35 Likewise in the case of Cruzat John v. Republic, Criminal appeal No. 313/2015. "Contradictions by any particular witness cannot be escaped or availed in any particular case. However, in considering the nature/ number, and in fact o f contradictions, it m ust always be more boned that witnesses do not always make a blow-by-blow m ental recording o f an incident As such contractions should not be evaluated without placing them in their proper context in an endeavor to determine their gravity, meaning whether or not they go to the root o f the m atter or rather corrode the credibility o f a party's case." Conclusively, in all summaries in general and from the evidence given, I am satisfied that the evidence given concerning the names of the first (1st) accused and the deceased; are theirs, and nothing has been spoiled in relation to the issue of names. In addition, the accused persons in their defence put the defence of alibif that they were not present at the crime scene when the offence was committed. Notably, the accused persons in their defence testimonies stated that they were not at the crime scene on the material date as they were at their respective homes with their wives. 36 Strange as it may sound, the accused persons never called their wives as witnesses to prove what they have told the Court. They told the Court that the whereabouts of their wives are not known since they were arrested. Reference is made, to the case of, Rashid Ally v. R, (1987) TLR 97, this Court held that: "Where the accused person put forward the defence o f alibi, he does not thereby assume the burden o f proving such alibi. It is sufficient if such a lib i introduces reasonable doubt in the prosecution case". Also, in the case of Fred Mathias Marwa v. Republic, Criminal Appeal No. 136 of 2020 (unreported) the Court of Appeal of Tanzania while making reference to the case of Abdallah Hamisi Salim v. Republic, Criminal Appeal No. 68 of 2008 (unreported) where it was stated that; lI t follow s that the tria l High Court having believed PW1 and PW2 on the evidence o f identification o f the Appellant, the defence o f a lib i dies a natural death' As a matter of fact, in this case, PW3 and PW4 clearly identified the accused persons at the crime scene. Thus, the defence of alibi raised by the accused persons cannot stand. 37 In the same way, after examining and weighing the evidence of both parties, I am of the view that the prosecution has proved that the accused persons were the one who caused grievous harm to the deceased which led to his death. Last but not least, from the evidence given by the prosecution's witnesses and the exhibits, I clearly find that the accused persons are guilty for the offence they are charged. Consequently, I proceed to convict the accused persons; one Mohamed Yassin Senjele @ Mudy Bonge and Erick Avelin Mbilinyi for the offence of murder contrary to sections 196 and 197 of the Penal Code (Cap. 16, R.E. 2019). Order accordingly. DATED and DELIVERED at nuary 2023. JUDGE 18 / 01 / 2023 PREVIOUS RECORDS/AGGRAVATING FACTORS Mr, Frank Chonja (State Attorney) for the Rupublic. The Republic have no previous records of the accused persons, since the accused persons have been convicted with the offence of murder 38 contrary to sections 196 and 197 of the Penal Code (Cap. 16, R.E. 2019) which has one sentence of death by hanging, I pray that the accused persons to be punished according to the law. MITIGATION Mr. Eliseus Ndunguru (Advocate for both accused persons) Since the accused persons have been convicted with capital offence which has no option of sentence, I have no mitigating factors. SENTENCE There is only one sentence for the offence of murder which is death by hanging. I hereby sentence the accused persons to death. So, under section 197 of the Penal Code (Cap. 16, R.E. 2019), I direct the accused persons; one Mohamed Yassin Senjele @ Mudy Bonge and Erick Avelin Mbilinyi to suffer death by hanging. I so direct under section 332 (2) of the Criminal Procedure Act (Cap. . >der accordingly. JUDGE 18/01/2023 39 COURT: The Republic and the accused persons have been informed their right of appeal under section 323 of the Criminal Procedure Act (supra) by giving the notice of intention to appeal within ten days and also lodging petition of appeal within 45 days from the date of judgment or from the date of obtaining the copies of proceedings. - ■ - ' U. E. MADEHA JUDGE 18/01/2023 40