CRIMINAL SESSION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF ARUSHA) AT ARUSHA CRIMINAL SESSION NO. 7589 OF 2024 (Originating from PI No. 12 o f2022 In the District Court o fArusha) COMPLAINANT THE REPUBLIC VERSUS AMINA OMARY @ ESTER PAULO ..1st ACCUSED PERSON JOHN MUHALE MATHAYO.......... ..2nd ACCUSED PERSON RAMADHAN TWAHIR SALIM..... 3rd ACCUSED PERSON JUDGMENT 30/09/2024 & 11/10/2024 D.D. NDUMBARO J, The accused Amina Omary @ Ester Paulo, John Muhale Mathayo and Ramadhan Twahir Salim stands charged with an offence of murder contrary to sections 196 and 197 of the Penal Code Cap 16 RE 2022. It is alleged that the 16th day of March 2022 at Sanawari within Arusha Region caused the death of Faraja Edward aged 8 years. The accused denied the allegations hence the case proceeded to a full trial. The prosecution was led by Mr Filbert Msuya and Stanlaus Alawi, learned State Attorneys. 1st accused was represented by Advocate Nelius Lugakingira, 2nd accused Advocate Zalfina Abdalla and 3rd Accused Advocate Richard Manyota. In its undertaking to prove the offence against the accused beyond a reasonable doubt, as required by section 110 of the Law of Evidence Act, Cap 6 Revised Edition, 2022 (TEA), the prosecution paraded 11 witnesses, PW1 F. 7335 Surgent Evance police officer who arrested 2nd accused, PW2 Edward Robert Molell who is Faraja's father, PW3 Christina who is co-tenant to the 1st accused, PW4 Dorah Swai Farajas teacher, PW5 Amina Jackson Kasanga who is Farajas Mother, PW6 Hawa Mohamed Laizer who is a doctor, PW7 Evalist Francis Mwamengo who arrested 2nd accused , PW8 Essau Humay Nangai who is Security officer (mgambo) witnessed arrest of 2nd accused, PW9 Assistant Nicodemus Yohana Gerson police who arrested and cautioned 3rd accused PW10 Copro Beatrice Mruma who arrested 1st accused, PW11 WP 8125 DP Faudhia who cautioned 1st accused. They also tendered six documentary exhibits namely, the PF16 register (exhibit PI), Two mobile phones (Exhibit P2), a search and seizure warrant for 2nd accused (Exhibit P3), a caution statement of 1st accused (exhibit P4), a search and seizure warrant for 1st accused (Exhibit P5) and caution statement was 3nd accused (exhibit P6). 2 It was the testimony of PW2 that, he used to stay with her daughter Faraja who is 8 years old, after an agreement with Faraja's mother PW5 Amina Jackob Kisanga. PW2 daily took Faraja to school in the morning and Faraja used to come back home with other fellow students as a group. On the date of the incident 16/03/2022 afternoon around 15:30 hours he was a bit tired and wanted to have an afternoon nap, therefore asked Amina Omary @ Ester Paulo (who was his tenant in a business frame) to take care of Faraja on coming back by giving food on which he prepared and put on the table in his house. PW2 testified that Faraja was used to Amina, and Amina used to serve Faraja most of the time. PW2 upon waking from nap around 16 hours did not hear any sign as to the presence of Faraja despite that the food prepared was eaten. He called Amina but Amina did not pick up the phone, he then went to Beatrice who was his tenant and also a police and sometimes her children used to pray with Faraja, thinking Faraja might be there but was not. Knowing that he asked Amina to give food to Faraja on coming back he decided to go to several places searching for Amina and Faraja such as a market, saloon and pharmacy, thinking that probably can be found but in vain. It was late evening, and he then went back home to where Christina one of his tenants in the business frame so that he could ask, he found Christina closed the business frame. Around 19:37 hours PW2 testified to have received a call from Amina informing him that she was sick and in hospital, on trying to ask which hospital Amina hung down the call and, thereafter sent a message that her mobile was silent. PW2 asked Amina where is Faraja, she replied, I don't know, she will be searched, he kept on asking and which hospital she was in, but she did not reply. He reported the matter to the Sekei police station, where he was told to wait for 24 hours, but he could not wait, and kept on calling people to help if could find Amina. He went into several hospitals looking for Amina that night but in vain. He informed Faraja's mother of the missing Faraja around 02:00 hours which was midnight of early 17/03/2022. On the 17/03/2023 morning, he met with Christina, one of his tenants in the business frame who informed him that he had seen Amina and Faraja the day before (16/03/2022) afternoon going down side. He kept on searching for Amina and finally, one informer told to had seen Amina at Kalolen Hospital. Immediately went and searched and found Amina at the hospital reception. He called one of his tenants Beatrice who was the Police, responded immediately, came and arrest Amina. Amina was arrested by Beatrice and taken to Central Police Arusha for filing the arrest 4 and seizure warrant on which he also witnessed. Thereafter he was informed by police that Faraja was killed by Amina, John Mhale and Ramadhan Twahir. PW2 identified Amina Omary a.k.a Ester Paul Before the court. PW2 testimony was deferred as per section 147(5) of Law of Evidence Act Cap 6 RE 2022, and after six days he came back before the court for testimony whereby he identified the seizure certificate he witnessed before the police during arresting Amina. PW3 Christina testified to know Amina a.k.a Ester Paulo a.k.a Mamdogoo as co-tenant in the business frame to whom PW2 rented to them. Christina testified to have last seen Amina and Faraja on 16/03/2022 around 15 to 16 hours. When Faraja came back from school and entered the house through the gate near her frame, Faraja greeted her and went inside whereby Amina followed her and came back with Faraja through the same gate and two of them left. Testified that her business frame is connected with the gate wall to the extent that anyone entering and exiting the gate can be seen her. PW4 Dorah, a Sanawari Primary School Faraja class teacher, testified Faraja was her student in class two B, she attended the class on 16/03/2022, and was discharged around 03:20. PW5 Amina Jackson Kasanga, Faraja's Mother testified that Faraja her daughter was born on 06/06/2024 and PW2 Edward Mollel is her co­ parent, they never married, it was their agreement that Faraja to stay with her father for schooling, and during school vacation can visit her mother. Faraja used to visit her mother at Mbeya under the escort of either her elder brother Shadrack Kyando or her uncle. On 17/03/2022 Faraja's father called and informed her that Faraja was missing, thereafter they were informed by police that Faraja was killed by Amina Omary, John Mhale and Ramadhan Twahir. PW6 Hawa Mohamed Laizer who is a doctor testified to attend Amina at Kalolen Hospital, she registered as a patient on that day however she was not sick, she requested a doctor for a paper showing she was hospitalized, telling a doctor the reason behind that deal is, her husband is mad at her because she left home with a kid, the paper will help her to justify that she was sick and admitted to hospital. Despite asking the doctor for help, the doctor refused the deal as it was contrary to professional ethics, hence Amina left the office. PW1 F. 7335 Surgent Evance exhibit keeper, testified to have received exhibits Tsmart 4G black buttoned mobile from WP 10447 PC Beatrice, he described the phone as a small black buttoned phone in relation to case No. RB/3083/2022 IR 2772/2022 on accusation of child abduction, Tsmart 4G having Imei No. 35748054070522 and 3574450540702530, and Itel with the unknown number having Imei No. 358985100750489 and 358985100750497. PW1 SGT Evance testified to have labelled and registered all exhibits in PF16, and on 26/05/2022, to have handled the exhibits to investigator WP 8125 PC Faudhia who took the exhibit to the Cyber unit Dar es Salaam for investigation. The Exhibit was returned on 04/06/2022, the movement was also recorded in PF16. PW1 tendered the PF16 and two mobile phones before the court where it was admitted as exhibit PI for PF16 and P2 for two mobile collectively. PW7 ASP Evarist Francis Mwamengo testified to have arrested 2nd accused John Mvale at Babati on accusation of child abduction (Faraja Edward Mollel 8 years) case No.IR 2772. He was with WP Copro Fauzia. The accused was arrested after being informed of his accusation. He searched and seized a small buttoned Itel mobile phone with Imei No. 359885100750489 and 359885100750497 having airtel line No. 0782827022, and filled search and arrest warrant in the presence of independent witness one Essau Humay Nangai and accused himself to whom both signed the seizure certificate. The accused and exhibit were taken to Arusha Central Police. The exhibit was recorded in PF 16 and handled by Copro Evance who was the exhibit storekeeper. On 20/07/2022 John Mvale confessed to have buried faraja body at Endanachani village Bonga Babati, on reach John Mvale claimed to have forgotten the place, and they spent three hours in vain. The 2nd accused was taken back to Central Police Arusha. PW7 tendered before the court arrest and seizure certificate, it was not objected to on the defence side and admitted by the court as Exhibit P3. PW7 also identified exhibit PI mobile phones and exhibit P2 PF16 tendered by PW1 F. 7335 Surgent Evance, and identified John Mhale before the court. PW8 testified to have participated in the arrest of John Muhale and witnessed search and seizure as an independent witness. PW9 Assistant Nicodemus Yohana Gerson testified to have arrested 3rd accused Ramadhan Twahir Salim on 20/06/2022 at Bagamoyo after having intelligence information that the accused flew to Bagamayo, took him to Arusha Central Police, and recorded his caution statement as per section 57 and 58 of Criminal Procedure Act Cap 20 RE 2022. PW9 made a prayer to tender the cation before the court for its admission, it was objected to on the ground that it was not signed by 3rd accused, he was forced to put a fingerprint. The court resorted to Trial Within a Trial whereby the prosecution paraded one witness TPW1 who testified that the accused had not been forced to sign the caution statement. Defence paraded one witness TDW1 who is 3rd accused who raised an issue that he was beaten and forced to sign by police Goodlove and John Mbaga. The accused showed a tiny scar on his foot bottom to justify the beating. The court ruled that no evidence was tendered as to the beaten, the scars shown do not reflect beating and the statement given is personal to the accused non can give except the accused himself. The court went on to admit the exhibit and marked Exhibit P4. PW10 WP 1487 Copro Beatrice Mruma testified she is a police officer and she was Edward Mollel's tenant before she moved to her house. On 16/03/2022 she was informed by her landlord Edward Molle that Faraja was missing, that he requested Amina to take care of Faraja on coming back from school, Amina and faraja nowhere to be found and Amina is also not picking up his phone. PW10 organized searching for Faraja, and get to know Amina was also not in the compound that night. On 17/03/2022 received a call from Edward Mollel to have seen Amina at Kaloleni Hospital, he went to the Kaloleni Hospital where she found Amina a.k.a Ester Paulo and Edward Mollel. PW10 arrested and searched Amina and sent her to the Police Central Arusha where they ceased her mobile Tsmart 4G in the presence of Edward Mollel. PW10 tendered a seizure certificate, where it was not objected to by the defence side and admitted as exhibit P5. Since the mobile phone Tsmart 4G and PF 16 was tendered by PW1 F.7335 Surgent Evance, PW10 identified the exhibits before the court. PW 11 DP Faudhia who was the investigator in this case testified, to have taken 1st accused (Amina) caution statement as per Section 58 of Criminal Procedure Act Cap 20RE 2022 as to the offence of child abduction, the caution was freely signed by the accused. On tendering it was objected on the ground that the accused claimed to have signed empty paper hence court resorted to trial within a trial, where by prosecution paraded one witness TPW1 who testified that the caution was freely taken and the statement in caution was personal information on which accused only to have knowledge of the same. The defence also paraded one witness TDW1 10 who is 1st accused, who testified to have not signed a caution statement, she was beaten and threatened to sign and sign by fingerprint. The court ruled out the objection on grounds that, no evidence was given as to beating no scars were shown before the court and the statement in the caution is to personal information as no one can give except the accused herself. Hence 1st accused caution statement was admitted and marked as exhibit P6. All accused were identified by prosecution before the court, 1st accused was identified by PW2, PW3, PW5, PW6, PW10 and PW11; the second accused by PW7, PW8 and PW11 and 3rd accused by PW 9, and PW11. There was no discovery of the body and there was no eye witness to the killing of Faraja, but the incriminating evidence on prosecution side was merely circumstantial which connected to the evidence in repudiated caution statements of 1st and 2nd accused which revealed the story behind the killing of Faraja Edward. The prosecution closed his case and a ruling as to the case to answer was given by the court, whereby 1st 2nd and 3rd were found with a case to answer and were required to enter their defence. The three accused defended themselves by oath and no document was tendered. ii It was the testimony of the accused to have never communicated before their arrest nor committed the offence of child abduction which led to the murder of Faraja, further, there was no discovery of Faraja's body hence no murder. Faulted the evidence in this case is cooked with aim of convicting them. 1st and 2nd accused also denied having made caution statements before the police, that were forced to sign the statement. In defence, DW1 1st accused during oath introduced herself as Ester Paulo Mandi living at Sanawari. Testified to have been arrested by male police namely Dulla and Kasim on 15/06/2022 on her business frame at Sanawari. Testified having heard her Landlord Edward Mollel calling the Police, who came, pushed her out from the business frame and thereafter arrested her. Mr Mollel took her mobile phone to where she was charging. She claimed to have not been arrested on 17/06/2022 and that the caution statement admitted as exhibit P6 was signed by her when it was empty and after being beaten and promised to be helped if he could sign. Her fingerprint was taken and put to sign. She faulted not having relatives and children mentioned in the caution, as she is a mother of only one child, Baraka Musa whose father died. Testified to have not known or communicated with 2nd and 3rd accused John Mhale and Ramadhan Twahir before her arrest. She first gets to know them before the police during committal. She claimed to have seen Faraja's mother coming to Sanawari four times and she don't remember the last time to have seen Faraja. Amina made a prayer that she was set free as she did not commit the offence since no sufficient evidence was brought to prove the offence of murder and no discovery of Faraja's body. During cross-examination, Amina claimed that the mobile phone Tsmart 4G admitted as exhibit PI was not hers. It was a testimony of DW2 John Muhale that, had been arrested by police at Babati Endanachan village centre when he was together with fellow senior citizens, who thereafter took him to his house for a search. Police were with firearms which attracted neighbors to come to his house. He denied being arrested at his house and he was not a witch doctor and never practiced witch. Claimed to have not communicated with or knew 1st and 3rd accused before his arrest, he got to know them before the court. Testified to have neither know nor killed Faraja for witchcraft rituals. Faulted that to have not owned an Itel Mobile phone he rather own a Techno mobile phone. 2nd accused made a prayer before this court to be released since the accusation was cooked against him and no discovery of Faraja's body. DW3 Ramadhan Twahir testified to have been arrested on 01/06/2022 by Police Yohana at Bagamayo. He was at the workplace together with his friend Isiaka who were arrested together. He denied to have been arrested on 20/06/2022. Were taken to the police station and informed of his accusation, whereby the next day their Bos Maria came and negotiated with police Yohana while they were inside the 1ST car and heard them saying Isiaka be released, thereafter Isiaka was released. DW3 testified to have taken from Bagamoyo to Arusha Police Station and thereafter to Engutoto Police Station where he was tortured to the extent of losing conscious, after four days around 20:00 hours were put him into Goshen car boot back to Arusha Central police, where he met his younger brother Nasibu and his uncle Athuman who told him were detained because were looking for him. Nasibu and Athuman were released the next day. He also testified that, sometimes having been taken by police in a dark room at Arusha Central Police kept on beating him. The accused showed a tiny scar on the bottom of her leg to prove beating. Claimed to have not signed a caution statement at Bagamoyo but at Arusha Central Police after being beaten by the Police to whom he mentioned Gwakisa. He got to know his co-accused Amina Omary and John Mvale at the police station and never communicated with them before. The accused made a prayer to the court to be released as did not commit the offence, as no discovery of Faraja's body claimed to have been killed nor her parts were found and argued it was a cooked case against him. The defence counsels closed their case, both prosecution and defence did not prefer to have a final submission after the closing. After narrating the testimony of parties, it is time for the court to consider whether the prosecution has sufficient evidence to prove the guiltiness of the accused or accused has established doubt as to the accusation before them. The court will be guided by the following issues for the court's determination; 1. Whether the court can rely on the repudiated confession of the accused to prove the murder of Faraja 8 years old. 2. Whether murder can be proved by circumstantial evidence 3. Whether murder can be proved with no discovery of the body 4. If the 1st 2nd and 3rd issues are answered in the affirmative, whether the accused person murdered Faraja. 5. Whether the prosecution has proved the accused person's guilt to the required standard Starting with the first issue as to whether the court can rely on repudiated confession of 1st and 3nd accused. It is in the testimony of the prosecution that the accused committed the offence and 1st and 3rd accused made cautious statements before the police. The 1st accused testified to have taken child Faraja to Babati and handled to 2nd accused John Mhale a.k.a Jombaa, together with 3rd accused Ramadhan Twahiri whereby John Muhale took Knife and pieced into 1st accused chest for the promise that none of them will speak anything in relation of the intended killing of Faraja and gave 1st accused TZS 30,000. 1st accused left Faraja at the hands of 2nd and 3rd accused and went back to Arusha. It was also a cautious statement of 3rd accused Ramadhan Twahir Salim who, together with John Muhale took the child to a remote area, 2nd accused covered the child's mouth with a piece of cloth, whereby 3rd accused held a child's head and 2nd accused slaughtered the child with a knife, snatched out her eyes, 16 secret part and some internal organs which he mixed and used for bathing so that can get Minerals at Mererani. When the confessions were tendered before the court it was repudiated by both 1st and 2nd accused. Prosecution evidence entirely depends on the repudiated caution statement of the 1st and 2nd accused recorded by WP Faudhia and SGT Yohana respectively which was admitted before the court. It was the testimony of 1st accused that the caution statement was signed by her when it was empty and after being beaten and promised to be helped if he could sign, her fingerprint was taken and put to sign. It was a testimony of the prosecution that a caution statement was freely taken and was in compliance with sections 57 and 58 of Criminal Procedure Code Cap 20 RE 2022 that the accused was given all rights to call friends or relatives or advocate, the statement was read before them and it was signed. Argued the statements in the caution for the 1st and 3rd accused are personal information of the accused none apart from them may give. The position of law is clear on relying on repudiated confession if the court believed it to be true. In the case of Hemed Abdallah Vs Republic [1995] TLR 172, held that; "the court may act on repudiated confession if it is fully satisfied in the circumstances o f the case that the confession must be true The position was supported in the case of Dickson Elia Nsamba Shapwata and Another Vs Republic Criminal Appeal 92 of 2007 (2008) TZA 17 (30 May 2008) Which held that; "with respect, we agree with Mr Mkumbe that it is always desirable to look for corroboration in support of a confession which has been retracted/repudiated before acting on it to the detriment o f the appellant. However, according to the current state o f the law, a court may convict on a retracted/repudiated confession even without corroboration." The 1st and 3rd accused repudiated their confession on the ground that to had been signing after being beaten; were forced to sign an empty paper with a promise to be released. Going through the 1st and 2nd accused caution statements on the first page it is written in a block letter that "KARATASI YA MAELEZO YA ONYO", very visible non-can claim to have not seen or know what exactly in the paper claiming to have signed without knowing what exactly inside the paper. Further, neither 1st accused 18 nor 3rd accused denied to have not known how to read and write, no documentary evidence tendered to show they were beaten. The 1st accused did neither show a scar nor medical paper for treatment and 3rd accused did not show paper for treatment, he showed a tiny scar on the bottom of his leg which does not reflect beating. His leg bottom was very soft. Due to said facts and guided by cases of Hemed Abdallah Vs Republic and Dickson Elia Nsamba Shapwata and Another Vs Republic supra am convinced that the content of the 1st and 2nd accused confession must be true. I therefore find it safe to act on the repudiated confession for the reasons stated. The second issue is whether the murder can be proved by circumstantial evidence. It is clear that the evidence in this case is circumstantial linked with the caution statement of the 1st and 2nd accused. It is the position of law enunciated in the case of Sikujua Idd v. Republic, Criminal Appeal No. 484 of 2019 that, all judicial evidence is either direct or circumstantial. Direct evidence, meant when the principal fact is attested directly by witnesses, things or documents, and if it is not 19 direct attested the term circumstantial evidence is applied. However, the circumstantial evidence is applied with caution that the accused did not create doubt on their guilt. In that premises, the court ought to analyses the evidence in its totality. It was testified that a child Faraja was reported to be missing on 16/09/2022 around 15:00 hours after she came back from school. Her school teacher Dorah confirmed Faraja to have attended school that day and to have released her around 14:40 hours. It was the testimony of Christina who was the 1st Accused Amina co-tenant to the Faraja's father's house that, the last person to have seen with Faraja was Amina Omary a.k.a Ester Paulo. Further, it was the testimony of Faraja's father that he requested Amina Omary a.k.a Ester Paulo 1st accused to give Faraja food which he prepared on her coming back from school as he was a bit tired he wanted to have an afternoon nap. Upon awakening, he never heard any sign of Faraja being in the house and immediately called Amina who never picked up her call, despite extensive searches of Faraja and Amina made that date but in vain. Finally, Amina sent a message to Edward Mollel that she was at the hospital but she never said which hospital till her arrest on the next day 17/03/2022. It was the testimony of Edward Mollel PW2 and 20 Beatrice PW5 that 1st accused Amina was not in the compound on the date of the incident. Amina did not deny that Christina and Beatrice were her co-tenants, and did not create any doubt by either bringing witness as to the testimony of PW3 and PW5 on her absence to the rented place on the date of the incident and on the fact that she was arrested on 15/03/2022 by male police and her mobile was taken by Edward Mollel and not in 17/03/2024. It was also a testimony of Amina she was not having any misunderstanding with either Christina (PW3) or Beatrice (PW5) who were her co-tenants and Edward Molel (PW2). The 1st accused testimony cast out the doubt that the case is cooked her. The prosecution relied on the 1st accused caution statement before the police to having taken Faraja to Babati and handled to 2nd and 3rd accused John Mhale and Ramadhan Twahir Salim who killed Faraja with a promise of TZS thirty million (30,000,000) from 2nd accused. Despite was testimony of 1st accused that, they were not involved in abducting Faraja, the prosecution brought strong circumstantial evidence as to the last person to be seen with Faraja was 1st accused, who never shook the evidence by presenting tangible evidence as to where she was on the date 21 of incident, considering that the co-tenants testified 1st accused was not in the compound on the date of incident of Faraja's missing. In the case of Sikujua Idd v. Republic, Criminal Appeal No. 484 of 2019 (unreported) laid down that; '7/7 determining a case centred on circumstantial evidence, the proper approach by a trial court and an appellate court is to critically consider and weigh all the circumstances established by the evidence in their totality, and not to dissect and consider it piecemeal or in cubicles of evidence or circumstances Am inclined to say the circumstances before this case can prove the offence of child abduction which led to the murder of Fa raja. The prosecution evidence from PW3 Christina that, the last person to have seen with Faraja was Amina and the evidence from PW2 and PW5 that, Amina never picked up the call and was not in the compound as she used to live in that business. It is the testimony of 1st accused Amina that, she was not living in that business frame but she rented a room at Majengo Arusha, however, she contradicted herself during testimony, particularly while taking the oath, she testified to live at Sanawari. The contradiction speaks louder and makes this court believe the testimony of PW3 and PW5 that she used to live in a rented business frame and not Majengo. It is the testimony of PW6 Doctor Hawa that Amina went to the hospital on 17/06/2022 morning requesting a paper which may assist her in showing she was admitted to the hospital. 1st accused never created doubt as to where she was on that date prosecution testified to go to the hospital. The fact that 1st accused was the last person to have seen with Faraja, and the conduct of the accused after the child abduction and her confession draws the inference that she is involved in the commission of the offence. Considering the testimony of the prosecution side, particularly PW2, PW3, and PW6, and because the last person to be seen with Faraja was the first accused, Amina Omary, a.k.a Ester Paulo, who definitely is the one to tell where is the missing child Faraja. Going through the repudiated confession of 1st accused Amina which was admitted by the court on reasons that the statement in caution no one can give except the accused herself. The caution reveals the motive behind abducting Faraja was killing for superstitions in favour of the 2nd and 3rd accused and the promise of thirty million (30,000,000) to the 1st accused 23 so as to get rid of poorness. The fact that 1st accused was the last person to have seen Faraja and the fact that, Faraja's father asked 1st accused to take care of her daughter upon coming back and considering that 1st accused was not in the rented room on the date of the incident and did not want to respond on the Faraja father call, instead she replied to have been in the hospital and put off the phone. Amina is the one to tell where is Faraja. The law is settled where the circumstantial evidence on a person alleged to be the last person to be seen with the missed person. In the case of Lukas s/o Njowoka v. R, Criminal Appeal No. 220 of 2008 (unreported) as well as in Misoji Ndebile @ Soji v. Republic, Criminal Appeal No. 75 of 2013, referring to its earlier decision in Richard Matangule v. Republic [1992] T.L.R. 5, and Mathayo Mwalimu and Another v. Republic (Criminal Appeal 147 of 2008) [2009] TZCA 53 (2 November 2009) laid down that the last person to be seen with a missing person is the one to tell where is that missing person, in the latter case of Mathayo Mwalimu and Another v. Republic (supra), held that: "In our considered opinion, if an accused person is alleged to have been the last person to be seen 24 with the deceased, in the absence o f a plausible explanation to explain away the circumstances leading to the missing, he or she will be presumed to be the killer". In this case, in the absence of an explanation by the accused to excuse themselves from the missing Faraja, I am satisfied that are responsible for Faraja's missing. The last person to have seen with missing person principle is applicable if the circumstances prove the case beyond a reasonable doubt. In the case of Richard Matangule v. Republic (supra) stated that: "That fact that the appellants were the last known persons to have been with the deceased casts very grave suspicions on them; but it is in itself not conclusive proof that they killed the deceased... Other cogent corroborating evidence is necessary, for a suspicion, however ingenious can never be a substitute for proofbeyond reasonable doubt". I am satisfied that the circumstances of this case relying on the evidence of PW2, PW3 and PW6, that 1st accused was entrusted to take care of missing Faraja, she was the last person to be seen with Faraja and the 1st accused went to the hospital and wanted to be given forged a 25 document showing she was hospitalized on the date of the incident. It was the testimony of the accused that she was arrested on 15/03/2022 by male police who pushed her out of the business frame. It was the testimony of the prosecution that the accused was arrested on 17/03/2024 by PW5, and not 15/03/2022 they tendered PF16 which was admitted as Exhibit PI which shows the accused was arrested by PW5 WP Beatrice on 17/03/2022. Despite the fact that the accused denied the testimony of doctors PW5 but failed to create doubt as to where she was on the date claimed to be arrested by prosecution side. 1st accused testified that she did not go to the hospital but she never brought any evidence to the shaken testimony of the prosecution PW6, then her mere statement. This raised suspicion that the accused was trying to conceal what happened. It is my view that the circumstantial evidence of the prosecution side suggests the accused is the last person to have seen with Faraja on 16/03/2022, the accused's defence did not provide a reasonable, plausible explanation for the circumstantial evidence by the prosecution. The accused claimed to have not abducted and killed Faraja. But it was testified by PW3 Christina that 1st the accused was the last person to have seen 26 Faraja, and the testimony of PW2 and PW5 that Amina was not in the compound and never picked up the phone, and the caution statement of 1st accused revealed where Faraja was taken. It is my view that the prosecution presents strong circumstantial evidence to prove the offence of child abduction leads to murder. The third issue as to whether the murder can be proved if no discovery of the body. The 1st, 2nd and 3rd accused testified that the case was cooked against them since there was no discovery of the body. It is clear from the evidence in this case that none witnessed the killing of Faraja. The killing was revealed from the caution statement of 1st and 3rd accused. It is my view that since the killing is done secretly, eye witness is not necessary if the circumstantial evidence is strong enough to prove the killing, taking into consideration intention of killing, behavior of accused after killing and caution statement made by accused. It is also the position of law that, non-discovery of the body may not vitiate the offence of murder. The death may be proved by circumstantial evidence even without having a dead body, the position is laid down in the case of Leonard Mpoma V. R., [1978] T.L.R. No.58. and in the case of Mathias Bundala 27 vs Republic (Criminal Appeal 62 of 2004) [2007] TZCA 16 (16 March 2007) which held that; "We agree with Mr. Gaiati that nobody witnessed the killing o f the deceased. To us, this was not fatal, because if every killing had to be Eye- witnessed then many homicides would remain unsolved. We believe so because killing may be by poisoning, starving, drowning and a thousand other forms o f death by which human nature may be Overcome. Such killings can hardly be eye- witnessed by independent Witnesses. We agree with Mr. Gaiati that the cause o f the death o f the deceased has never been established to this day. However, our brief response to this shortcoming is that it is not a requirement o f the law that the cause o f death must be established in every murder case. We are aware o f the practice that death may be proved by circumstantial, evidence even without the production o f the body o f the alleged dead person." It is my view the fact that the accused did not dispute to have rented the Edward Mollel House, and the testimony of Edward Mollel who was the landlord and that of PW3 and PW10 who were co-tenants to 1st 28 accused that Amina was not in the compound on the date of the incident and no evidence by 1st accused as to where she was in the date of incident and considering the cation statement made which confessed to have killed the child raising doubt on the commission of crime. The 2nd accused denied having practicing witch doctors, but it was the testimony of PW8 Essau Humay Nangai, that 2nd accused was a well- known witch doctor in Endanachan village, at Babati, and the fact that second accused testified to having a wife and children, the children were around at the time of his arrest but the wife went to fetch water, and testified the search took almost four hours till the evening yet the wife did not come back from fetching water, the 2nd accused he could call his children or a wife to testify in favour of him. In the position of law in Section 130(4) of Tanzania Evidence Act Cap 6, the wife is competent to testify in favour of her husband, but the 2nd accused never wished to bring his wife or children to testify in defending his case. The inference is drawn as to failure to bring those key witnesses who are in reach to testify in his favour. 29 The fourth issue was whether did 1st 2nd and 3rd accused murdered Faraja. The evidence from the prosecution reveals that no eye witness as to the killing of Faraja, and no Faraja's body was discovered. The defence claimed to have not killed Faraja, and that the evidence was fabricated to incriminate them, as no discovery of Faraja's body. However, it is my view that the circumstantial testimony of PW2, PW3, PW4, PW5, PW6, PW1, PW7, PW8, PW9, PW10 and PW11 which were linked from one to another and collaborated on the caution statement of 1st and 3rd accused, raised no doubt that 1st, the 2nd and 3rd accused are responsible. As 1st accused was the last person to be seen with Faraja, admitted in the caution statement to having taken Faraja and handled to 2nd and 3rd accused on the promise of TZS thirty million (30,000,000) and 3rd accused caution statement admitted to having taken the said child and slaughtered her with a knife on the intention of witchcraft rituals of becoming rich. The conduct of 1st accused after the act suggests the commission of a crime. The 1st 2nd and 3rd Accused failed to create any doubt as to the commission of the offence. Despite the fact the position of law is clear that, murder can be proved by circumstantial evidence after weighing the circumstances around the case. It must also be known that for the offence of murder to be proved the 30 prosecution must prove the existence of both actus reus and mens rea. The prosecution presents circumstantial evidence that strongly suggests that Faraja was intentionally murdered for economic gain. I therefore find this issue is answered in the affirmative. The Demeanor and contradicting statement of the accused during the trial, Speaks a lot as to the commission of a crime. The 1st 2nd and 3rd accused denied having communicated nor known each other before being arrested and brought before the court, however, the court noted their demeanor before the court to have closely communicating as if knew each other before. The demeanor has been noted in trial proceedings and the fact that the 1st accused mentioned the 2nd and 3rd accused, and the fact that 3rd accused mentioned the 2nd accused in their caution statement to have committed offence connecting the dot. It was the testimony of PW2 Faraja's father and PW 10 Beatrice that Amina used to live in that business frame as she made a partition in that room. Amina testified to live at Majengo Arusha and to have only a business frame at Sanawari. However, during her defence on taking the oath, she introduced herself to live at Sanawari the place she 31 previously denied to live. The contradiction speaks louder and waters down 1st accused credibility. The fact that Amina was the last person to be seen with Faraja, and the fact that she visited a doctor PW6 to have forged admission hospital documents, and the fact that she confessed in her caution statement that to had taken Faraja and handled to 2nd and 3rd accused who killed her on promise of being given 30,000,000/= who finally given 30,000 speak louder. Despite the fact there was no discovery of Farajas body the circumstantial evidence presented by prosecution peaks louder on the accused quilt than innocence. The fifth issue as to whether the prosecution proved the case beyond a reasonable doubt. In our instant murder case, it is an undisputed fact that no one testified during the trial that, he or she saw the accused murdering the deceased and no Faraja body was discovered. Hence, the evidence before this court is purely circumstantial mainly based on the grounds that, the 1st accused was the last one to be seen with the Faraja and the caution statement made by 1st accused and 3rd accused which also mentioned 2nd accused to have slaughtered Faraja. I have also considered 32 the defence testimony and find no credible defence was made to create doubt on the said circumstantial evidence. It is my view that Failure to provide a credible defence relieves the court from having reasonable doubt on circumstantial evidence of the accused's guilt. Having said the court had that view after considering the facts that; a) The accused was the last person to be seen with Faraja Amina was the last person and the fact that she denied having visited a doctor PW6 to have forged admission hospital documents, b) She confessed in her caution statement that to had taken Faraja and handled to 2nd and 3rd accused who killed her on the promise of being given 30,000,000/= who finally given 30,000, despite the fact there was no discovery of faraja's body the circumstantial evidence speaks louder on the accused quilt than innocence. c) the subsequent conduct of the 1st accused is indicative of his participation in the deceased's death. The fact that on the date of the incident 1st accused was not in the rented room and did not respond to the call the next day went to the hospital looking for forged hospital documents and the fact no doubt as to this prosecution testimony created by the 1st accused. d) The circumstantial evidence of PW2, PW3, PW4, PW5, PW6, PW1, PW7, PW8, PW9, PW10 and PW11 who also tendered Exhibit PI, P2, P3, P4, P5, and P6 linking to each other that 1st, the 2nd and 3rd accused are responsible. Despite that Faraja's body was not found, the court is convinced without reasonable doubt that Faraja is dead and that the accused 1st 2nd and 3rd are, responsible. I therefore convict the 1st 2nd and 3rd accused of murder contrary to sections 196 and 197 of Penal Code Cap 19 RE 2022. In light of the above, I find the 1st 2nd and 3rd accused person guilty of the offence of murder contrary to sections 196 & 197 of the Penal Code, Cap 16 R.E. 2019 and I proceed to convict the 1st 2nd 3rd accused forthwith. It is so ordered. D.D. NDUMBARO JUDGE 11/10/2024 34 Court: The punishment for the offence of murder is only one as per section 197 of the Penal Code Cap 16 RE 2019 which is DEATH BY HANGING. Therefore, I hereby sentence the 1st, 2nd and 3rd accused persons, to death by hanging. It is so ordered D.D NDUMBARO JUDGE 11/10/2024 Right of appeal to the Court of Appeal of Tanzania is fully explained. D. D \ JUDGE 11/10/2024 35