the republic vs romanus felix kihwili 2023 tzhc 5 11 january 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE NO. 24 OF 2022 THE REPUBLIC VERSUS ROMANUS FELIX KIHWILI JUDGEMENT Date of last Order: 28/12/2022 Date of Judgement: 11/01/2023 U.E. Madeha, J. First and foremost, the accused person one Romanus Felix Kihwili is charged with the offence of murder contrary to sections 196 and 197 of the Penal Code (Cap. 16, R.E. 2019). In fact, it is alleged by the prosecution side that on 10th, May 2021 at Mahilo village within Mbinga District in Ruvuma Region the accused person had murdered one person who is none other than Winfred Edward Kihwili. As a matter of fact, when the charge was read to the accused person, he denied having murdered the deceased. In a bid to prove the charge of murder against the accused, the prosecution paraded a total of eight (08) witnesses and four (04) exhibits which are the postmortem examination report exhibited as exhibit PI, the sketch map of the crime scene exhibited as exhibit P2, the dying declaration of the deceased exhibited as exhibit P3 and the accused caution statement which was exhibited as exhibit P4. The evidences of the prosecution are to the effect that; PW1, Yusuph Gisbeth Ndunguru in his sworn testimony stated that he resides at Mhilo village within the district of Mbinga in Ruvuma region. He was the deceased's relative and a neighbour. Notably, on the material date, he was at home whereby he heard quarreling voices at the deceased's home. As a concerned neighbour; he went towards the deceased's house and saw five (05) people assaulting the deceased badly. He named the persons who assaulted the deceased to be none other than; Romanus Felix Kihwili (the accused), Denis Kihwili, Deodatus Kihwili, Felix Felix Kihwili and Edward Felix Kihwili. To add to it, he testified that he knew them since they are all his relatives who used to live together in the same village and some of them had gone to school together. In addition, PW1 further testified that he went to the deceased's home and tried to help him unfortunately, he failed. So, he decided to go to the police office to ask for help but luckily the Police Officers were in their normal daily patrol routine. They passed near the crime scene 2 whereby they found the deceased who was badly injured and the accused person and his fellows ran away. On the same note, the Police Officers talked to the deceased and he was given the PF3 and ordered to send the deceased at Litembo hospital where the victim died the next day. He further told this Court that Winfred Edward Kihwili was his grandfather and a close neighbor. In that regard, he went to the Police Station to report on the death and the police officers immediately went to the hospital and the doctor examined the body of the deceased. After examining the body, it was given to the deceased's relatives for burial and funeral. Moreover, he further averred that the reason for assaulting the deceased it was because of the bewitching behaviour. The deceased was accused to have killed the accused's sister (Maria Felix Kihwili) who died suddenly few days before the incident day. Additionally, PW1 also identified the accused person who was at the dock and he added that he is his relative and actually he was one of the people who assaulted the deceased. 3 It is worth considering that, PW2, Justine Joseph Kihwili in his sworn testimony testified that he is the relative and the neighbour of the deceased one Winfred Edward Kihwili who was also the relative and the neighbour of PW1. He further testified that on the material day at around 14:30 hours, he saw the accused person with his relatives assaulting the deceased by using sticks, the handle of an axe and stones. As a caring neighbor and relative he went to the crime scene but unfortunately, he failed to help the deceased. In addition, he stated that PW1 also tried to help the deceased but he failed. Lucky enough the Police Officers from Litembo Police Station were on their usual patrol and they passed at the crime scene and saw the deceased who was badly injured while the accused person and his fellows were no longer there. He added that the Police Officers gave PW1 a PF3 and ordered him to send the deceased at Litembo hospital and he actually managed to do so. The next day he went to the hospital to see the deceased but he was no longer alive. Also, PW2 testified that he knows the accused person well since he is his relative. Moreover, before the incident they used to live together at Mahilo village in Mbinga district and he managed to identify him in the court. PW2 further testified that the accused person and his fellows assaulted the deceased alleging that he was bewitching them and he had killed the accused's sister who met a sudden death few days before the incident. PW3, F 6642 D/CPL Josiah who is a Police Officer in his sworn testimony told this Court that on that material day he was working at Litembo Police Station in Mbinga district. In fact, on 10th May 2021, he was with his workmate that is G. 5490 PC Hamis and they were in their normal patrol routine in the Villages around their working area. To add to it, when they reached at Mahillo Village they saw a person who was badly injured and blood was floating around his legs. It is true that, they managed to talk with the deceased before his death, who actually told them that his name is Winfred Edward Kihwili. On the same note, he said that he was assaulted by his relatives whom he named to be Denis Kihwili, Edward Kihwili, Romanus Felix Kihwili, Deodatus Kihwili and Felix Felix Kihwili who suspected him to be a witch and he was bewitching them. PW3 further told this Court that at the crime scene, they met with PW1 and PW2 who told them that the accused person and his fellow assaulted the deceased. They gave PF3 to PW1 and ordered him to immediately take the deceased to Litembo hospital. Furthermore, during evening hours of the same day, they visited the accused person at the hospital. As a result, G 5490 PC Hamis recorded the deceased's statement and the deceased stated that he was assaulted by the accused person and four other people. On the next day, he was informed that Winfred Edward Kihwili was dead and they went at the hospital where a Medical Doctor conducted a postmortem examination and wrote the report and the body of the deceased person was given to the deceased's relatives for burial and funeral rites. It is worth of considering that, PW4, Dr. Mkayala Mohamed who is a professional Medical Doctor in his sworn evidence testified that he is working at Litembo hospital. On 11th May, 2021 he was assigned by his doctor in-charge to conduct a Post Mortem Examination to the body of Winfred Edward Kihwili which was in the mortuary of Litembo hospital. As a matter of fact, he responded and examined the body. It was revealed that the cause of death was due to loss of blood. Thus, the bones and blood vessels in the legs of the deceased were broken. Also, he testified that after examining the body he carefully prepared the Post Mortem Report. In that case, he prayed to tender it as an exhibit and it was admitted as exhibit PI. Additionally, PW4 stated that after conducting the Post Mortem Examination the body was given to the deceased's relatives for burial. PW5, E. 8065 D/Sgnt. Ayoub in his sworn testimony he testified that he is a Police Officer working at Mbinga police station at the investigation department. Also, he added by stating that on 11th May, 2021 he was at his office and he was ordered by his head of department ASP. Mwamba that he must go to the crime scene at Mahilo Village. He acted accordingly and they went at the crime scene and he was accompanied by Yusuph Ndunguru (PW1) who was an eye witness. It is true that, PW1 directed him to draw the sketch map of the crime scene and prayed to tender it as an exhibit. It was admitted as exhibit P2. Additionally, he stated that he was informed by PW1 that the suspects were not arrested and the matter was reported to the Village Chairman. Basically, on 12th May, 2021 the accused was arrested and sent to Mbinga Police Station at around 23:00 hours and the cautioned statement of the accused person was to be recorded however he requested to record his cautioned statement in the presence of his relative. Therefore, on 13th May, 2021 around 08:00 hours the accused's cautioned statement was taken before CPL Amani and in the presence of his relative who was his father. PW6, G. 5490 CPL Hamis, affirmed and testified that he is a Police Officer working at Litembo Police Station. On 10th May, 2021 around 14:00 - 15:00 hours he was in a normal patrol as his daily routine and he was accompanied by his workmate (PW3). When they reached at Mahilo village they saw a person lying on the road who was badly injured on his legs. In that regard, they questioned the victim that is none other than the deceased who told them that he was assaulted by five (05) people who had run away. It is true that, they were shown five (05) people who were running towards the hills. As concerned Police Officers they tried to arrest them even though he failed as they had reached very far. To crown it all, the deceased managed to name the names of the people who assaulted him as: Felix Kihwili, Romanus Felix Kihwili, Edward Felix Kihwili, Deodatus Felix Kihwili and Denis Felix Kihwili. Then they ordered Yusuph Ndunguru (PW1) to take the deceased to Litembo hospital and they continued with their patrol. At 18:00 hours on 10th May, 2021 he went to Litembo hospital to see the deceased and deceased's statements was written. The deceased told him that on 10th May, 2021 around 14:00 hours he was at his home 8 and the accused person who was with Felix Kihwili, Edward Felix Kihwili, Deodatus Felix Kihwili and Dennis Felix Kihwili come and started assaulting him by using stones, sticks and an axe. In fact, he was thoroughly beaten on his legs. In other words, he was badly injured. Basically, he was assaulted due to the allegation that he was a witch as he has bewitched Maria Felix Kihwili who was the accused's sister and she died few days before the incident and she had got a sudden death. Also, the deceased told him that the accused and his group of people planned to kill him that is why they took him up to the road. PW6 further stated that after recording the deceased's statement he signed and the deceased also singed on it by inserting his finger print. PW6 prayed to tender the statements given by the deceased but the learned counsel for the defence objected it's admissibility on the ground that they were given by another people who was not the deceased. The objection was overruled by this Court and the dying declaration was admitted as an exhibit "P3". Also, the exhibit was read in court in the presence of the accused person and his learned advocate. PW7, F 5623 D/CPL Aman, who is a Police Officer at Mbinga Police Station in his sworn testimony testified to the effect that he has been working as an investigator for eight (08) years. On 13th May, 2021 he was assigned to record the caution statement of Romanus Felix Kihwili who was a suspect of a murder case. Notably, at that time the accused was under police custody. The accused was taken and sent to the investigation office where the accused was given the right to call his relative as a witness when recording his statement. The accused requested to call his father Felix Kihwili to be present when recording his cautioned statement and he was called and witnessed. PW7 also testified that he gave the accused person his rights and told him that the caution statement may be used as an evidence before the Court of law. He started recording the statement at around 08:30 hours and he completed at around 09:50 hours. Actually, PW7 further stated that in his cautioned statement the accused person confessed to have participated in killing his relative (Winfred Edward Kihwili) by assaulting him. Additionally, PW7 narrated that the cautioned statement was not taken immediately after the arrest of the accused person because the accused prayed to record his statement in the 10 presence of his relative who was not around at that particular time. To add to it, PW7 tendered the cautioned statement which was admitted as exhibit "P4". It is important to note that, the cautioned statement was admitted despite the objection raised by the accused's learned counsel who prayed to reject it as the statement was recorded out of the time limit prescribed under sections 50 (l)(a) and (b) and 51 (1) (a) and (b) o f the Criminal Procedure Act (Cap. 20, R.E 2019). To put it in a nutshell, the objection was overruled on the ground that the statement was taken out of the prescribed time limit because the accused person requested that his relative was to witness when his caution statement was recorded. After its admission exhibit P4 was read out in the presence of the accused person. It is also important to note that, PW8 Felix Edward Kihwili who is the biological father of the accused person in his sworn testimony stated that he is a resident of Mahilo Village and the deceased (Winfred Edward Kihwili) was his younger brother and they lived in the same Village. He further stated that Winfred Edward Kihwili died on 11th, May 2021. On 13th, May 2022 he was requested to go to Mbinga Police Station in the investigation office where he met PW7 and the accused. To add to it, he ii also stated that while in the investigation office the accused was warned that the statement he will give may be used as evidence in the Court of law. Furthermore, PW8 stated that the accused person admitted to have participated in assaulting the deceased person and he was together with the following people; Denis Kihwili, Felix Felix Kihwili, Edward Felix Kihwili and Deodatus Felix Kihwili. On the contrary, DW1, Romanus Felix Kihwili in his sworn evidence he stated that he is a resident of Mahilo village and he used to live with his father (PW8). On 10th, May 2021 at around 11:00 hours he left his father and he went to his mother who is living at Lupalasi Village and he arrived at Lupalasi on the same date around evening hours. Moreover, on 11th, May 2021 during evening hours he was sitting at Lizaboni Pombe shop in Lupalasi village and he was surprised when the Village Chairman who was accompanied by a militia men arrested him on the allegation that he had killed his relative, one Winfred Edward Kihwili. In that regard, he was detained in the Village Office and at around 21:00 hours the Police Officers went and took him to Mbinga Police Station. Basically, on 13th, May 2022 he was taken to the investigation office. In that office he was asked to record his cautioned statement but he denied 12 to have participated in the killing of Winfred Edward Kihwili. He was told that he participated together with other four (04) people in the killing of Winfred Edward Kihwili. As a result, he denied exhibit "P4" and its content. Also, he stated that he doesn't know the whereabouts of his relatives who were suspects in the killing of the deceased. He added that the deceased was his father-in-law. When cross-examined by the State's Attorney, he stated that he doesn't know Maria Kihwili. At last, after finishing the trial, both parties preferred to file their final written submissions. Mr. Uhagile the State's Attorney for the prosecution submitted that concerning the matter of the dying declaration, it is nothing but the truth, he argued that the condition for the dying declaration were conducive as the incident took place during noon hours whereby there was broad daylight. In addition, he further stated that the assailants were not strangers to the deceased, they were relatives who resides in the same area. Basically, he explained other factors that make the dying declaration more credible that it was the ability of the deceased to name the suspects at the earliest opportunities as he mentioned them as soon as the Police Officers arrived at the crime scene. 13 As a matter of fact, he contended that the law is clear that mentioning the suspects at the earliest opportunities is an important assurance of the witness reliability and he cited with approval the case of Marwa Wangiti Mwita and Another v. Republic (2002) TLR 39 where it was held that: " The ability o f a witness to name a suspect at the earliest opportunity is an important assurance o f his reliability. In the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry" With regard to the accused's evidence on the caution statement, he submitted that it is clear that the same was voluntarily made as it was the testimony of the accused father as he was present when the accused was interrogated by PW7 F. 5653 D/CPL Amani and nothing was done to intimidate or torture the accused person. Principally, he averred that the caution statement explains in detail what was the motive behind the killing of the deceased and how the same was executed. He further stated that the law is settled that the best evidence in criminal cases is that of the accused person who confesses to having committed the crime. For more emphasis, he made reference by 14 citing with approval the case of The Republic v. Khamis Said Bakari, Criminal Session Case No. 119 of 2016 the High Court stated: 'It is trite law that the best evidence in a Criminal Trial, is that of the accused person who confessed to having committed the crime'. In the same way, he contended that PW1 and PW2 were witnesses of truth and their testimonies ought to be believed for there is nothing fault in their credibility. This is because they gave a coherent testimony as to how the incident occurred and how the accused person participated. For more clarification, he put emphasis and stated that this Court had an opportunity to assess the demeanor and find that they ought to be believed. To crown it all, he cited with approval the case of Goodluck Kyando v. Republic (2006) TLR 363 where it was stated that: 'It is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing the witness'. Like the previous argument, he further submitted that the evidence that was adduced by the prosecution side shows that the accused person and his fellow siblings killed the deceased with malice aforethought as they 15 had a motive of eliminating him as they believe he was practicing in witchcraft and he had killed their sister named Maria Kihwili. Similar to that, he argued that another indication which shows that there was malice aforethought is the conduct of the accused person during and after the incident. Basically, during the incident they were saying that they must kill the deceased and after the incident, they all run away without availing any help to the deceased. He cited with approval the case of Trazias Evarista @ Deusdedit Aron v. The Republic, Criminal Appeal No. 188 of 2020 (unreported) whereby while referring to the case of Obadia Kijalo v. Republic, Criminal Appeal No. 95 of 2007 it was stated that: 'It suffices to say that malice aforethought may be demonstrated by iooking at the motive for the offence and the conduct o f the suspect immediatelybefore and after that act or omission' At the same note, he further stated that the accused and his fellow badly injured the deceased to the extent that the fractured bones appeared outside the body as it was testified by PW4 the Medical Doctor. In that regard, this shows that they had intended to kill the deceased. Moreover, 16 he further stated that this case has got ampler evidence with the deceased's death ranging from the evidence of the eyewitnesses (PW1 and PW2), the dying declaration of the deceased person and the accused person's caution statement. Apart from that, he further submitted that the said set of evidence corroborates each other to the highest degree. Also, he contended that the incident took place during day time with enough light hence the identification of the accused person was not an issue and the accused person was well known to the witnesses as they were relatives residing in the same area. Lastly, he submitted that with the foregoing submission the prosecution side has managed to prove their case beyond reasonable doubt and he prayed that the accused person to be convicted and sentenced accordingly. On the contrary, Mr. Makame Sengo the accused's learned advocate submitted that he has gone through the charge sheet, evidence adduced by eight (08) witnesses and the exhibits tendered during trial and he has observed that the prosecution failed to establish the prima facie case against the accused. In fact, he cited section 110 (2) of the Evidence Act 17 Cap 6 R.E. 2022 which provides that when a person is bound to prove the existence of any facts, then the burden of proving lies upon him. It is worth considering that, he further contended that the caution statement was tended in Court as exhibit P4 which was obtained after the four (04) hours since the arrest of the accused on 12th May, 2021 at around 23:00 hours of the same day even though the caution statement was recorded on 13th May, 2021 at around 08:30 hours therefore the said caution statement should be expunged from the Court records. In addition, he cited with approval the case of Shabani Hamisi v. Republic, Criminal Appeal No. 146 "A" of 2017 the Court of Appeal of Tanzania at Tabora (unreported) held that: The recording o f the Appellant's caution statement outside the prescribed period of four hours is in contravention of section 50(1) o f the CPA which requires a suspect to be interviewed within the basic period of four hours reckoned from the time he was taken under restraint unless the period is lawful extended pursuant to section 51 o f the CPA or the reckoning of such period is excluded according to the circumstances falling under subsection (2) (a)(b)(c) and (d) of the CPA has an effect o f being expunged'. 18 On the same note, he further submitted that the evidence adduced by the witnesses during the trial shows a lot of discrepancies as the dying declaration is in contradiction with the PW1 and PW2's evidence who testified to have been present at the crime scene. While the deceased's dying declaration states the first person to arrive to help him was the Police Officers, PW1 and PW2 claimed that they were the first people to arrive at the crime scene to help the deceased. He further, argued that, although, the deceased and others said the deceased was beaten on the legs only but the expert's evidence who is a professional Medical Doctor that is PW4 tendered the Post Mortem Examination Report which said that there were open fractures on both sides of the limbs. Principally, he contended that the dying declaration contradicts with the testimony given by PW1 and PW3 as far as the witnesses testified that the deceased was given PF3 while going to the hospital but the deceased never mentioned the PF3 anywhere in his statements. It is therefore, a shred of evidence which led to doubt of whether the deceased was sent to Litembo hospital for the medical purpose before he died. He emphasized that the prosecution failed to prove their case beyond reasonable doubt. 19 For the conviction of murder to stand, according to section 196 of the Penal Code (supra), the prosecution has to prove the following major issues as follows: 1. Does the killing amount to murder? 2. Whether the prosecution proved the case against the accused beyond a reasonable doubt? To start with the first issue of whether the cause of death of the deceased person in this case was murder, the evidence from the prosecution's side is clear that the death was unnatural. PW4 who is a professional Medical Doctor testified that it was due to blood loss as the deceased was badly injured in his legs. PW4 testified that the bones and blood vessels of the deceased's legs were completely broken. According to PW1 and PW2, the injuries in the deceased's legs were caused by the accused and his fellows, who assaulted him badly. Notably, PW7 who recorded the cautioned statement (an exhibit P4) of the accused person in which the accused person admitted to having assaulted the deceased. 20 It is important to note that, the cautioned statement was witnessed by PW8, who is the biological father of the accused, who testified that the accused admitted to having assaulted the deceased together with other four (04) colleagues namely; Felix Kihwili, Edward Felix Kihwili, Deodatus Felix Kihwili and Dennis Felix Kihwili. Principally, the prosecution stands firmly by looking and considering the testimonies of PW1 and PW2's, the evidence which corroborate with the caution statement (exhibit P4) that I hereby quote: 1... we had been accusing him for a long time that he is a witchcraft. On 10h, May 2021 at around 14:00 hours, I was at home where I live with my parents and I met my brothers who are EDWARD S/O FELIX KIHWILI, DEODA TVS S/O FELIX KIHWILI, FELIX S/O FELIX KIHWILI and DENIS S/O FELIX KIHWILI and we were discussing about the death of MARIA D/O FELIX KIHWILI and the illness that is bothering REGINA D/O FELIX KIHWILI and in that discussion, each of us explained how they felt and accused WINFRED S/ O EDWARD KIHWILI for superstitious involvement on the death and diseases. So, after the discussion, we all agreed together that each of us should carry a dub and then go to the house o f WINFRED S/O EDWARD KIHWILI to beat him in order to punish him 21 so that he does not repeat those actions again. We went to his house and found him and at that time it was still around 14:00 hours. We found him at his home, we caught him and we started beating him with the sticks we were carrying at that time. I used my stick to beat him on the legs and later on he got injuries on both his legs and blood was flowing out. We continued to beat him and later we left his house and we went with him to the road which is in the nearby his house. After arriving at the road, I decided to leave and while leaving my brothers to continue beat the deceased' On the other hand, the testimony of the deceased in the dying declaration, which the Court received as exhibit P3, is connected with the testimony of PW1, PW2 and the evidence of the accused's caution statement (exhibit P4) when his statement was taken, his father (PW8) was present. The accused's learned advocate stated that the evidence in the caution statement should not have been received because it exceeded four (04) statutory hours. Basically, the argument of the prosecution was that the accused requested that his father must be present when his cautioned statement was recorded, then the prosecution called his father from the 22 village, it was during night hours, and in the morning when the accused's father arrived, the accused caution statement (exhibit P4) was recorded. In that case, I personally considered being a reasonable cause for recording a cautioned statement for more than four hours. The accused's caution statement was received in evidence as exhibit P4. As a matter of fact, the evidence in the dying declaration shows that the deceased named four (04) people that is; Felix Kihwili, Edward Felix Kihwili, Deodatus Felix Kihwili and Dennis Felix Kihwili he says that they were the ones who attacked him on the legs. The evidence in the caution statement of the accused shows that the accused attacked the deceased with a stick and hit him in the legs as seen above in the evidence that due to the evidence of the deceased in his dying declaration (Exhibit P3). In addition, the evidence of the prosecution in his caution statement shows that the accused beat the deceased by using a tree stump on the legs and later he left his colleagues who continued beating the deceased. In fact, he left his colleagues when they had dragged him on the road where two (02) witnesses were present who are none other than PW1 and PW2. Actually, PW5 found the deceased on the road and he gave a PF3 to PW1 send the deceased to the hospital. 23 From the evidence of the prosecution side, especially if you look at the testimony given by PW1, PW2 and the evidence of the dying declaration, is consistent and is corroborated by the evidence of the accused in his caution statement (Exhibit P4), that he beat the deceased with a wooden stick on the legs, but he left his colleagues who have not been arrested until today. It is important to note that, the accused and four (04) others who were not arrested beat the deceased person. See the case of Seif Selemani v. Republic, Criminal Appeal No. 130 of 2005, CAT (unreported) it was stated that: Where the evidence against an accused person is whole circumstantial, the facts from which an interference adverse to the accused is sought to be drawn must be clearly connected with the facts from which the inference is to be inferred. In other words, the inference must irresistibly lead to the guilty o f an accused person'. To the best of my knowledge, I have gone through the statement of the deceased (exhibit P3), which is in line with the testimonies of PW1, PW2 and the caution statement (exhibit P4), which connects the accused with his four (04) colleagues of having killed the deceased. The accused in his cautioned statement; he stated that he used a wooden stick to beat the 24 deceased, as shown above; and the details of exhibit P3 appear as follows, and I hereby quote some lines in the dying declaration (exhibit P3) for more clarification. 7 remember on l(fh May, 2021 at around 15:00 hours at my home in Lutondo suburb "B", MahHo village, County Kitura ,"W" Mbinga "M" Ruvuma I was lying in my bedroom alone. SurprisinglyI saw people coming with machetes, dumps, hugs and stones. They took me out of my house and they continued beating me until all my legs were bodily injured and they pulled me up to Kingua road. They said that they had to kill me because I was a witchdoctor, I have killed their sister named Maria d/o Felix @ Kihwili who died on 10h, April 2021 in a sudden death in the village of Mitambotambo. The young men who injured me and caused severe pain in my body were Felix s/o Felix Kihwili, Edward s/o Felix Kihwili, Deo s/o Felix Kihwili, Romanus Felix Kihwili and Dennis Felix Kihwili who are the children of my brother Felix s/o Kihwili. I was attacked by the young men who jumped into the wall and got into my house and pass through the closet as the door of the gate was locked inside and into the house was open and my wife was in the farm at Mbelele'. 25 What is the dispute which caused killings of the deceased? And the second question is, did the killing amount to murder? I'm satisfied that the evidence available in this case proves without any shadow of doubt that the accused person Romanus Felix Kihwili (DW1), and four other person (04) who have not been arrested are the one who caused the death of the deceased Winfred Edward Kihwili, for the reasons stated above. On the same note, I am left with a very crucial point for determination. Whether the accused killed the deceased persons with malice aforethought or whether the killing amounted to murder. Looking at the trend of the existing evidence, PW1 and PW2 have testified that they saw the accused and his four (04) colleagues beating the deceased with a stone, a wooden stick and an axe around the leg and that was the cause of his death. As a matter of fact, the evidence is supported by the evidence of the dying declaration that the deceased testified that he was beaten by the accused and his four (04) companions who were five in total. In addition, the evidence of the accused in the caution statement shows that he used to beat the deceased with a wooden stick and left his colleague beating him. Basically, the evidence is linked to the evidence of the Medical Doctor 26 (PW4) who said that the deceased had died because he was hit on the legs and bled profusely. In determining this case the issue to be discussed is whether there was malice aforethought that is; whether the accused had the intention to kill the deceased. Reference is made to the case of Republic v. Samwel s/o Henry @ Juma, Criminal Session Case No. 12 of 2010 (High Court of Dar-es-Salaam). On a special note, this case elaborates the useful guideline on how to determine malice aforethought. In determining this case reference is made to the case of Said Ally Matika @ Chumila v. Republic, Criminal Appeal No. 129 of 2005 wherein the Court of Appeal cited with approval the case of Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 and it was stated that: including the following (1) type and size o f the weapon, if any used in the attack: (2) the amount o f force applied in the assault: (3) the part or parts of the body the blow was directed on: (4) the number o f the blows, although one blow may, depending upon the facts o f the particular case, be sufficient for this purpose (5) the kind o f the 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'. 27 In my humble opinion, I am inclined to apply the hereabove guidelines in determining the existence of malice aforethought. With all due respect to the size and the type of weapon used by the accused to attack the deceased, from the prosecution evidence it's clear that he used a wooden stick to hit the deceased on the legs. The accused was with his four (04) brothers and he beat the deceased and left them beating the deceased. Notably, the prosecution's evidence states that, the deceased died while he was in the hospital. The accused aimed at the legs. I wonder if he had the intention to kill the deceased by hitting him with a stick on the legs. Likewise, considering the issue of the amount of force applied in the assault, it seems that the prosecution did not prove the amount of force used by the accused persons to facilitate the killing because they were five (05) who were assaulting the deceased. The accused left the other four (04) people continuing beating the deceased. I am of the view that the amount of force used by the accused was not established by the prosecution. Also, the prosecution evidence does not state how many times the accused beat the deceased with a stick. Moreover, considering the kind of injuries inflicted, the testimony of the doctor (PW4) shows that the accused and four (04) others who are not 28 yet to be arrested beat the deceased on the two legs, which was the cause of the deceased's death. On the conduct of the attackers before and after the incident, the evidence of the prosecution shows that after beating the deceased, the accused ran away and left his colleague's (brothers) to continue beating the deceased. To add to it, it does not show that the accused made any effort to take the deceased to the hospital, which was deemed to be life-threatening. Basically, the question to ask again is whether the killing amounts to murder. In this case, the prosecution has failed to prove malice aforethought, that is, killing with intention, because the intention to kill here has not been proven, and the evidence does not show that the main reason for the accused to do so is not apparent. Since, the prosecution has failed to prove that there was an intention to kill on the part of the accused, the killing done by the accused does not amount to saying that the accused killed intentionally. Furthermore, it is the duty of this Court to examine the evidence and find whether there are major contradictions which can be resolved in favour of the accused person. Personally, I have weighed the prosecution evidence alongside with the defence raised by the accused. The evidence 29 given by PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8 are all truthful that the accused unintentionally caused death to the deceased. The accused person in his defence he put the defence of alibi, that is he was not present at the crime scene when the offence was committed. Generally, the defence of alibi is applicable in criminal cases however, its applicability has been limited and given its principles in criminal procedures. Section 194(4) of the Criminal Procedure Act (Cap. 20 R.E. 2022) requires the accused person to give notice of his intention to use the defence of alibi, and that notice must be given to the court and the prosecution side before the commencement of the hearing of the case. In fact, this stance has been reiterated in a number of cases, including the case of Charles Samson v. R, [1990] T.L.R. 39, where it was held that, failure to give notice of the intention to use the defence of an alibi renders the defence of the accused person nothing. As a matter of fact, my main reasons are based on an analysis of the evidence and the circumstances that led to the deceased's death. It is my finding that the accused person did unintentionally cause the death of the deceased; thus, he committed an offence of manslaughter contrary to sections 195 and 198 of the Penal Code (Cap. 16, R.E. 2022). 30 To add to it, after indicating that the first (1st) ingredient namely an overt act has been established I have already explained that the evidence has established that the accused person had no intention whatsoever of killing the deceased. On the same note, a combination of all these events, considering on the type of weapon the accused used to assault the deceased (a wooden stick), part of the body which was inflicted, the amount of force used by the accused which the prosecution failed to establish and the people who assaulted the deceased were five, I see no other conclusion other than the accused person did not have the intention of committing the unlawful killing to the deceased. I am of the considered view that the second (2nd) constituent of the offence of murder, namely men's rea, has not been established since the ingredients of malice aforethought have not been established. In that case, it is obvious that the prosecution's side had failed to prove that the accused had an intention to cause murder to the deceased. Reference is made to the case of Edwin Mbunda Seusi v. Republic, Criminal Appeal No. 468 of 2007. 31 Last but not least, I am mindful of the required provision of section 196 of the Penal Code (Cap. 16, R.E. 2022) on malice aforethought, which has not been established in the case at hand. To put it in a nutshell, there is no evidence on records to establish malice aforethought. Therefore, in light of the above, I hereby substitute the conviction for the offence of murder contrary to sections 196 and 197 of the Penal Code (Cap. 16, R.E. 2022) to the lesser offence of manslaughter contrary to sections 195 and 198 of the Penal Code (Cap. 16, R.E. 2022). Order accordingly. DATED and DELIVERED at SONGEA this 11th day of January, 2023. PREVIOUS RECORDS/AGGRAVATING FACTORS Ms. Tumpale Lawrance (State Attorney) for the Rupublic. The Republic have no previous records of the accused, I pray that the accused person be punished accordingly. 32 MITIGATION As the Republic has no previous records on the accused person, we pray that the accused person be given a lesser punishment for the following reasons: First, the accused person has been in remand prison for more than one year; and second considering the type of the weapon and the part of the body that was inflicted, the accused aimed to punish the deceased and not to kill him. SENTENCE I have duly considered both aggravating and mitigating factors. Especially, I have considered that the weapon used by the accused to kill the deceased was a wooden stick. I hereby sentence the accused person Romanus Felix Kihwili for the offence of manslaughter contrary to sections 195 and 198 of the Penal Code (Cap. 16, R.E. 2022) to serve ten (10) 33 COURT: Right of appeal is explained to both parties, who is none other than Ms. Tumpale Lawrance (State Attorney) for the Prosecution, the accused person and Mr. Makame Sengo advocate for the accused person. 34