Republic v Gasper Samwel 3 Others CriminalSession No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CRIMINAL SESSION NO. 000021907 OF 2024 REPUBLIC .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS GASPER SAMWEL .............................. RESPONDENT / DEFENDANT JUDGMENT KAHYOZA, J The accused persons, namely, Gasper Samwel, Faraja Justine, Fahadi Amosi and Moshi Matyaka, the first, second, third and fourth accused persons respectively, are arraigned before this court for the offence of murder contrary to sections 196 and 197 of the Penal Code, CAP 16 R. E. 2022. It is the prosecution’s case that on the 31st day of July, 2023, at Nyanga Village within Buhigwe District, the accused persons did murder one Ester Paulo. The accused persons pleaded not guilty to the offence they stand charged with. The prosecution has paraded a total number of eight witnesses in order to prove the offence charged. Also, some eight (8) exhibits were tendered by the prosecution in an endeavour to prove its case. The testimony of the eight witnesses can conveniently be summarised as follows. PW1 Dr. Deogratias Komba told the court that on 31/07/2023 during day hours he was requested by police officers to go to Muyama Village to examine the body of one person who had been murdered. The PW1 then went to the scene, examined the body. He concluded that the deceased met her death due to asphyxia, that is lack of air. The PW1 further told the court that the deceased died because she could not breath as both her mouth and nose were inserted with clothes, thus blocking any intake of air. PW4 further told the court that he concluded that the deceased was dead because the body muscles had hardened, that being a sign of a dead person. He tendered exhibit PE1, the post mortem examination report of the body of the deceased, Ester Paul. On his part, PW2 J.54 CPL Ramadhan told the court that he was exhibit keeper at Buhigwe police station. He told the court that he received various items, being items stolen by the accused persons from the house of the deceased. He tendered exhibit PE2, a small black hand bag with red strips, exhibit PE3, a mobile phone, Nokia make, black in colour, exhibit PE 4 collectively, that is two sheets (shuka), and an axe, exhibit PE5. Page. 1 Hon... PROJESTUS KAHYOZA PW3 Methusela Paulo, told the court that the deceased was her sister. He further told the court that on 30/7/2023 around 22:00hrs he was called over the phone by one Pamphil Gwimo PW 4) who asked him to go to his house so that they could address something. Upon arriving, the PW4 told him that the PW5, daughter of the deceased who stays in Dar es Salaam, had asked her wife to go and check on her mother, the deceased as she was not picking her call. But when his wife went there and called out the deceased, there was no response. At that information, both PW3 and PW4 and other people went to the house of the deceased. PW3 further told the court that upon getting into the premisses, they saw sandals outside and drops of blood, and upon opening the door, they saw the body of the deceased lying in the sitting room. It is his further testimony that both her hands and legs were tied up using clothes. PW3 further told the court that they immediately reported the matter at Muyama Police station. The PW3 also told the court that police officers came at the scene the following day, that they prepared a sketch map of the scene of crime and that he signed it. The fourth witness, PW4, was Pamphil Gwimo. He told the court that on 30/7/2023 PW5 called his wife over the phone and asked her to go and check on her mother, the deceased, as she was not picking her calls. That she went to the house of the deceased, called out her but there was no response. PW4 further told the court that upon receiving this information, he passed it to PW3, the deceased brother. It is PW4’s testimony that himself, the PW3 and other neighbours went to the house of the deceased. There they called out the deceased but there was no response. On getting into the premises, they found sandals and a piece of stick and also blood drops. PW4 further told the court that they got into the house and found the body of the deceased lying on the ground, on its back. This witness also told the court that the body had legs and hands tied up, and also that its mouth and noses had clothes inserted in. The PW5, Shukrani John, told the court that on 30/7/2023 she called her mother, the deceased over the phone, that is, through her phone number 0717713010, but the phone was not going through. After some time when she called back, the phone was picked by some other person. At this point she decided to call the wife of PW4, neighbour to go and check on her mother. She was later told by on Vitus Simon that her mother was dead. PW5 further told the court that on 2/8/2024 she went to Kigage Village in the company of some police officers. There, the second accused person was arrested, and that his house was searched and some items stolen from the house of the deceased were seized. These items include two sheets, exhibit PE 4 collectively and a small hand bag, black in colour. Here in Court, PW5 identified exhibit PE 5, a mobile phone, Nokia make as one belonging to her mother, now deceased. She also identified the second and third accused persons here in court. When cross-examined, PW5 told the court that she identified exhibit PE 4 collectively, the two sheets, because she had bought them, used them for some time and later passed them to her mother. And as for exhibit PE2, she told the court that apart from buying it, she identified it because of a unique mark on it in that she had repaired its loops with a read thread. Page. 2 Hon... PROJESTUS KAHYOZA PW6 Regina Nteze. She told the court that on 30/7/2023 the second and fourth accused persons sold maize to her. She further told the court that the total purchase price was Tshs.82,500/-; and that she paid to the second and fourth accused persons a total of Tshs.82,000/-, and the balance of Tshs.500/- remained unpaid. PW7 G 1832 D/CPL Mboje, told the court that following the information collected, on 31/7/2023 he picked PW1 with whom they went to Nyanga hamlet in Muyama Village. He further told the court that at the scene, that is, at the home of the deceased they found the body of the deceased lying in the sitting room, with legs and hands tied. It was lying on its back. The mouth and noses were inserted with clothes. PW7 also told the court that he drew the map for the scene of crime, exhibit PE 6. He also told the court that on 2/8/2023 he went to Muyama Village with A/Insp. Myaluko who arrested the fourth accused person following information obtained from PW6, who has bought maize from the second accused person. He further told the court that he personally interrogated the second accused person, and that the second accused person mentioned the rest of the accused persons as persons with whom he committed the offence. PW7 further told the court that the third accused person was arrested at the funeral of the deceased, on 2/8/2023. It was his further testimony that on 4/8/2023, the second to fourth accused persons were taken to the justice of the peace, one Hon. Mosha, a magistrate, before whom they confessed their involvement in killing the deceased. PW7 further testified that on 7/8/2023 he went to Kalege Village in the company of other police officers and that they arrested the first accused person. He further told the court that when his house was searched, some items stollen from the house of the deceased were seized, including an axe, exhibit PE5. PW7b also told the court that he interrogated the first accused person who confessed to have killed the deceased in collaboration with the second and third accused persons. He tendered exhibit PE7, the cautioned statement of the first accused person. The last prosecution witness was PW8, Straton Aniceth Mosha, a Resident Magistrate. He told the court that on 04/08/2023 he recorded extra judicial statements of the second and third accused person. He further told the court that on 09/08/2023 he recorded extra judicial statement of the first accused person. All the three extra judicial statements were admitted in evidence as exhibit PE 8 collectively. When the accused persons were called upon to defend themselves, each categorically denied to have killed the deceased. The first accused, Gasper Samwel, who testified as DW1, told the court that he never killed the deceased. He also told the court that he never recorded a cautioned statement, exhibit PE7, but that he was forced to sign the statement; and as for the extra judicial statemen, Exhibit PE8 collectively, he denied to have recorded the same. He also told the court that among all the prosecution witnesses no single witness told the court that he was seen at the scene of crime. He further told the court that all the prosecution witnesses told lies and contradictory evidence. It was his further testimony that exhibit PE 5, the axe was taken from the house of his mother by police officers who searched his mother’s house. He also told the court that all the exhibits tendered by the prosecution lacked proof of ownership to show that they belonged to the deceased. The second accused, Faraja Jastine, testified as DW2. Like the first accused, he denied to have been involved in the murder of Ester Paul, the deceased. He told the court that all the prosecution witnesses apart from telling lies, they Page. 3 Hon... PROJESTUS KAHYOZA also gave contradictory evidence; and also, that no single witness ever told the court that he saw him at the scene of crime. He denied to have sold maize to PW6, Regina Nteze; and he also denied to have recorded extra judicial statement before PW8. As for the exhibits tendered by the prosecution, DW2 told the court that such exhibits could be owned by any person in the society, and as such there was nothing to suggest the exhibits tendered belonged to the deceased. He concluded by urging the court to be acquitted as the case against him was not proved beyond reasonable doubt. The third accused person, Fahadi Amos, testified as DW3. Like the other accused person, he totally denied any involvement in the killing of the deceased. He said that is why he was arrested while at the funeral of the deceased otherwise he would have disappeared. He further said that he never recorded an extra judicial statement before the PW8. As for the prosecution witnesses, told the court that apart from telling lies, they also gave contradictory evidence. He dismissed the PW3 as an unreliable witness in that at one time he told the court that he had seen the body of the deceased, but when cross examined, he said he did not get into the house. As for the exhibits tendered by the prosecution, he said there was no evidence to show that they properties of the deceased. He concluded by urging the court to acquit him as the case against him was not proved beyond reasonable doubt. The last defence witness was the fourth accused person, Moshi Matyaka. He testified as DW4. Like the rest of the accused persons, he denied any involvement in the killing of the deceased. He told the court that it was true he had sold maize to the PW6, Regina Nteze, but that the maize was his property. He further told the court that the mobile phone (exhibit PE 3) seized from his home was his property and also that it had been out of order for quite some time. Briefly, this is the summary of evidence from both the prosecution and the defence. Next, I shall move to consider the essential elements that need to be proved in order to establish the offence of murder. But before I go further, I must quickly acknowledge the long-established principle in criminal justice on the onus of proof in criminal cases, that the accused committed the offence for which he is charged with, is always on the side of the prosecution and not on the accused person and the standard of proof is beyond reasonable doubts. Such principle has been reflected in a number of precedents from the Court of Appeal including that of Mohamed Haruna @ Mtupeni & Another v R, Criminal Appeal No. 25 of 2007 when the Court of Appeal, held that: "Of course, in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that, an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." In proving the offence of murder, four elements must be established by the prosecution. One, that death occurred, or rather, that someone was murdered. Two, that death was a result of an unlawful act or unlawful omission. Three , that it was the accused persons are who killed the deceased and four, that the killing was preceded by a pre- meditated evil intention, that is, malice aforethought. Page. 4 Hon... PROJESTUS KAHYOZA In the case at hand there is no doubt that the deceased met death in her house. This is according to the testimony of Pw1, Pw3 and Pw4. Their evidence show that the deceased was found dead in her house. The death was particularly confirmed by PW1, Dr. Deogratias Komba who examined the body of the deceased. After examining the body, PW1 concluded that death was due to the fact that both the mouth and nose (pharynx) were inserted with clothes which led to asphyxia, that is, airway obstruction, thus leading to death. PW1 further clarified that due to the fact that both mouth and nose were inserted with clothes, the body lacked oxygen, and as such the brain could not work properly leading to death of cells. Also, without oxygen the heart could not pump blood leading to death of body parts, hence her death. He tendered exhibit PE1, the post mortem examination report which contains more details as to the examination of the body of the deceased, and the cause of death. From this evidence, there is no doubt that Ester Paul was dead. As for the second aspect that death was a result of an unlawful act or omission, it suffices to say that from the discussion above, the deceased met her death as a result of an unlawful act of air obstruction. The third and crucial aspect/issue I have to consider is whether it was the accused persons who caused the death of the deceased. As it can be seen from the entire prosecution evidence, there is no single eye witness. As such the entire prosecution evidence is circumstantial. It is pertinent at this juncture to revisit the vital principles established through precedents particularly on the issue of circumstantial evidence in criminal cases. The Court of Appeal in Hosea Francis @Ngala & Another vs The Republic, Criminal Appeal No. 408 of 2015 has had this to say; “This Court has always insisted that circumstantial evidence directed against an accused person must not be capable of more than one interpretation, and must irresistibly lead to an inference that it was the accused person who is responsible for the death of the deceased.” Again, the Court of Appeal in Marecha Mashala v Republic, Criminal Appeal No. 447 of 2019 (17 March 2023) quoted the case of Lezjor Teper v Reginam [1952] A.C 480 in which it was stated; “It is also necessary before drawing the inference of the accused’s guilty from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference” We have a similar holding by the Court of Appeal in Mpunzu @ Elisha Mpunzu vs Republic (Criminal Appeal 12 of 2002) [2004] TZCA 3 (28 June 2004) (reported at Tanzlii). In that case, the Court stated: - It is a settled trite principle of law that in a criminal case in which the evidence is based purely on circumstantial evidence, in order for the court to found a conviction on such evidence, it must be satisfied that the evidence irresistibly points to the guilt of the accused, the appellant in this case to the exclusion of any other person. Page. 5 Hon... PROJESTUS KAHYOZA In the case at hand the prosecution led evidence by producing various exhibits so as to establish circumstantial evidence. In addition, and in my humble view, such evidence also necessarily leads to the application of recent possession. Some of the exhibits tendered in that chain include exhibit PE2, a black hand bag, exhibit PE3, a mobile phone and exhibit PE4 collectively, the two sheets (mashuka). The essence of these exhibits was to impress upon the court for it to make inference that the accused persons stole those items from the house of the deceased and as such they were directly linked with her murder. The circumstances under which the doctrine of resent possession can be embarked upon have been stated by the Court of Appeal of Tanzania and other superior courts in a number of cases. In Juma Marwa v. Republic; Criminal Appeal No. 71 of 2001 CAT (unreported), it was stated thus: "The doctrine o f recent possession provides that if a person is found in possession o f property recently stolen and gives no reasonable explanation as to how he had come by the same, the Court may legitimately presume that he is a thief or a guilty receiver." In Mkubwa Mwakagenda v. Republic, Criminal Appeal No. 94 of 2007 CAT (unreported), the Court made the following observations: - For the doctrine to apply as a basis o f conviction, it must be proved, first, that the property was found with the suspect, second the property is positively proved to be the property of the complainant, third, that the property was recently stolen from the complainant and lastly, that the stolen thing constitutes the subject of the charge against the accused........ The fact that the accused does not claim to be the owner of the property does not relieve the prosecution to prove the above elements" As noted earlier, this case relied on circumstantial evidence as there was no eye witness when the deceased was killed. It is now settled law that once recent possession is established, it may also lead to the conclusion that the possessor thereof is also responsible with the death of the victim. In Manazo Mandundu and Another v. Republic 1990 TLR 92, the Court had this to say: - " (i) The possession was very recent and that this fact cannot be ignored. (ii) In the circumstances it was not wrong to conclude that the appellants were responsible for killing the deceased, and because we are satisfied that the killing was to effect the stealing, we are of view that it was quite proper to infer malice aforethought; (iii) This is a fit case for invoking the doctrine of recent possession to support not only the shop breaking and the theft but also murder." Again, in Rex v. Bakari Abdulla(supra), the Court had this to say on the doctrine of recent possession: "That cases often arise in which possession by an accused person of property proved to have been very recently stolen has been held not only to support a presumption of burglary or of breaking and entering but of murder as well and if all the circumstances of a case point to no other reasonable conclusion the presumption can extend Page. 6 Hon... PROJESTUS KAHYOZA to any charge however penal" [Emphasis proved]. In the case at hand, the prosecution has led evidence to show that exhibit PE2, a hand bag, exhibit PE3, a mobile phone and exhibit PE4 collectively, two bed sheets, were stolen from the house of the deceased. This piece of evidence also suggests that since these items were found in the possession of the accused persons, it must be concluded that the accused persons stole them from the house of the deceased. This conclusion necessarily leads to another inevitable conclusion that it was the accused persons who killed the deceased in the course of executing their plan of stealing. Perhaps it is important to note at this juncture that all the accused persons in their respective defences told the court that there was no evidence to prove that indeed the said exhibits belonged to the deceased. They also went as far as claiming that the said exhibits had no unique or special mark such that they could be owned by any person in the society. I believe that was meant to controvert the prosecution’s evidence as regards the said exhibits. But I think we have something unique here. PW5, Shukrani John, identified the hand bag, exhibit PE2 by its unique and special mark. She told the court that she had bought it and used it before giving it to her mother, the deceased. She was also quite firm that she repaired the loops of the said bag by using a red thread. This fact was never controverted in any way by the accused persons. In the absence of this special mark on the bag, and in the absence of evidence as to ownership, the said bag remains a common bag capable of being owned by any person in the society. But the special mark on it makes it unique and therefore an exclusive property of the deceased. I would for that reason conclude that this bag found in the possession of the second accused person was stollen by the accused person from the home of the deceased, and as such they cannot disassociate themselves with the death of the deceased. Having found and held so in relation to exhibit PE 2, I do not have any reason to disbelieve the PW5 as regards exhibit PE 4 collectively. My position on this is also fortified by the demeanour of the PW5. When she testified before this court, PW5 appeared to be firm, stable, consistent, unshaken and certain of what she was talking about. She clearly described the two bed sheets, exhibit PE 4 collectively. She readily and immediately identified the two bed sheets as soon as they were seized from the home of the second accused person. This was during the search that was conducted at the home of the second accused person. But she also identified the said bed sheets here in court without any difficulty. It is important to note that in the light of the authorities I have cited above regarding resent possession, when it is established that the item suspected to stolen is proved to be property of the complainant, in this case, property of the deceased, it becomes then imperative for the accused person to offer an explanation proving the contrary. But we have non such explanation here. The least the second accused could tell the court was that the bag and bed sheets tendered in could were common items that could be owned by any person including himself. However, he never said they belonged to him, not withstanding that they were seized from his house. In that case therefore, I am entitled to hold that both exhibit PE 2 and PE 4 collectively were stolen from the house of the deceased. I would for that matter safely conclude that this is a fit case in which to apply the doctrine of resent possession. Page. 7 Hon... PROJESTUS KAHYOZA My position is also fortified by the issue of time. According to the evidence on record, the deceased appears to have been murdered on 30th July, 2023. Then the said exhibits were seized from the house of the second accused person on 02/08/2023. This was within a span of only two days. In my view, this constitutes resent possession in its real meaning. In Manazo Mandundu and Another v. Republic (supra), the Court held that resent possession did not only prove shop breaking and theft, but also murder. In Mustapha Maulid Rashidi vs Republic (Criminal Appeal No. 241 of 2014) [2016] TZCA 739 (3 February 2016) reported at Tanzlii, the Court addressed a similar scenario and concluded in the following words: “Taking in consideration the circumstances of this case we are of the considered view that just like in the Mandundu case (supra), this is a fit 11 case for invoking the doctrine of recent possession to support not only the theft of the motorcycle but also murder. We have in mind the extreme proximity in time. The appellant was found in possession of the motorcycle within a few hours. The appellant failed to offer any reasonable explanation”. Similarly, the second accused person was found in possession of stolen items in the span of two days and he offered no reasonable explanation. He must therefore be held responsible with the murder of the deceased. Apart from possessing stolen properties, we have also another evidence that links the accused persons with the murder of the deceased. This is the cautioned statement recorded by the first accused person, Gaspar Samwel. In that statement, the first accused person gives a clear and detailed account of how they (himself, the second accused and the third accused) went to the house of the deceased, how they attacked her with an axe, how they tied her hands and legs and how they inserted clothes into her mouth and nose which later led to her death. But as it turned out to be, the first accused person did retract the statement. The law regarding retracted confessions has been pronounced in numerous cases by the Court of Appeal. In Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 (30 May 2008), reported at Tanzlii, the Court had this to say: - “…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 of the appellant. However, according to the current state of the law, a court may convict on a retracted/repudiated confession even without corroboration”. [emphasis supplied]. Again, in Abdallah Rashid Namkoka vs Republic (Criminal Appeal No. 206 of 2016) [2018] TZCA 363 (9 May 2018), reported at Tanzlii, the Court stated: - We are also mindful of the fact that it is dangerous to act upon a repudiated or retracted confession unless, it is corroborated in material particulars, or unless the court after full consideration of the circumstance is satisfied of its truth (emphasis supplied). See also Bombo Tombola v. Republic [1980] TLR 254. Page. 8 Hon... PROJESTUS KAHYOZA In the present matter I have carefully considered the statement and I have also warned myself on the danger of acting on a retracted statement. I have however concluded upon considering how consistent and detailed the statement is, that the retracted statement reflects nothing but the truth, that is, a true account of what transpired on the fateful day. This requires no corroboration. My position in relation to the retracted cautioned statement is fortified by the existence of extra judicial statements. It is important to note that the first, second and third accused persons all recorded extra judicial statements. The statements of the first and third accused persons contain similar details as those contained in the cautioned statement recorded by the first accused person. But equally even the content of the extra judicial statement recorded by the second accused person do confirm what the rest stated in their respective statements. Probably it is also important to note that admissibility of these extra judicial statements was never objected to. The accused persons only came to retract and repudiate these statements during the defence. But this was too late, and indeed an after thought. In Abdallah Rajabu Waziri v. Republic, Criminal Appeal No. 116 of 2004, the Court while addressing a similar situation, had this to say: - "it was too late in the day. That was not an appropriate stage for retracting them. The appropriate stage would have been during the preliminary hearing. The defence should have objected their production whereby a trial- within-a trial would have been conducted to determine their admissibility. Purporting to retract them in the defence after the prosecution had closed their case is nothing but an afterthought. They were properly admitted by the trial Court and did not require corroboration to be acted upon. " [Emphasis supplied]. See also Rashid Namkoka vs Republic (supra). In similar vein, the extra judicial statements recorded by the first, second and third accused persons say it all. They say clearly, how, with the exception of the fourth accused person, they took part in the killing of the deceased. Such strait evidence requires no corroboration. I would therefore safely conclude that from the circumstantial evidence available, from the cautioned statement recorded by the first accused person, and also from the extra judicial statements recorded by the first, second and third accused persons, there is ample and conclusive evidence to show that it was the first, second and third accused persons who killed the deceased person. The defences put up by the first, second and third accused persons cannot stand in the presence of such a strong case made by the prosecution. On the other hand, I must confess that there is no evidence that is directly linking the fourth accused person with the murder of the deceased. The only available evidence linking him with the murder is that he was found in possession of some items stolen from the house of the deceased including a mobile phone, exhibit PE3 and also that he sold maize to PW6, Regina Nteze. The maize was however not tendered in court. I have also taken note of the fact that even the fourth accused person is neither mentioned in the cautioned statement of the first accused nor in the extra judicial statements of all the co accused persons. This being a murder case, I do not see any strong and direct evidence linking him with the murder of the deceased. Page. 9 Hon... PROJESTUS KAHYOZA With that said, I shall now move to consider the last aspect, that is, whether the accused persons killed the deceased with malice aforethought. The law, that is, the Penal Code clearly provides for the circumstances in which it can be concluded that the act or omission leading to death was done with malice afore thought. Section 200 of the Penal Code, CAP 16 R. E. 2022, is couched in the following words: 200. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence. For the purpose of this case only parts (a), (b) and (c) of section 200 are applicable. According to the evidence on record, we are told that the deceased was hit by the accused persons in her head/face by using an axe as soon as she opened the door. Although according to the PW1 this was not the cause of death, but it clearly shows existence of malice aforethought on the part of the accused persons. It is such acts that are envisaged by the above provisions of the law. But again, the first accused person in his cautioned statement, he confessed among other things that they tied up the legs and hand of the deceased as well as the mouth (tulimfunga mdomo). This is also reflected in his extra judicial statement. The said explanation is also reflected in the extra judicial statements of the second and third accused persons. In addition, exhibit PE1, the post mortem examination report clearly shows that both mouth and pharynx were inserted with clothes thus causing airway obstruction, which led to the death of the deceased. In Enock Kipela vs The Republic [1999] TZCA 7 (TANZLII), the Court enumerated circumstances from which malice aforethought can be inferred. The Court observed: - " ... Usually, an attacker will not declare to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following: - (1) the type and size of the weapon if any used in the attack. (2) the amount of force applied in the assault. Page. 10 Hon... PROJESTUS KAHYOZA (3) the part or parts of the body the blows were directed at or inflicted on. (4) The number of blows, although one blow may, depending upon the facts of the particular case, case, be sufficient for this purpose. (5) The kind of injuries inflicted. (6) The attackers’ utterances, if any, made before, during or after the killing. (7) The conduct of the attacker before and after the killing. [Emphasis provided]. See also Obadia Kijalo vs Republic, Criminal Appeal No. 95 of 2001 (unreported), Moses Michael @Tail vs Republic [1994] TLR 195 and Grospery Ntagalinda @ Koro vs Republic [2016] TZCA 661 (TANZLII). It is apparent and patently clear that these acts of the accused persons do exhibit pre-meditated evil intention on their part, thus falling under the ambit of parts (a), (b) and (c) of section 200 of the penal code. It would therefore follow that the sole and inevitable conclusion is that the first, second and third accused persons killed the deceased with malice aforethought. From the foregoing discussion and findings, I am satisfied beyond any shadow of doubt that it was the first, second and third accused persons who brutally killed the deceased. I accordingly find them guilty of murder in terms of sections 196 and 197 of the Penal Code, CAP. 16 R. E. 2022, and I accordingly convict them forthwith. On the other hand, and as I stated earlier, there is no evidence to link the fourth accused person with the murder of the deceased. For that reason, I find the fourth accused person Moshi Matyaka not guilty of murder, and I accordingly acquit him. P. R. Kahyoza, Judge. 13/12/2024. Mr. Pancras Ligombi, SA: We have no previous criminal record as regards these accused persons. We however pray they be sentenced in accordance with the law. Ms. Mary Milali, Adv: Following the court’s finding, we leave it for the court so that the law can take its course. SENTENCE Page. 11 Hon... PROJESTUS KAHYOZA There is only one sentence for the offence of murder which is provided under section 197 of the Penal Code, that is, death. It is in the light of that, I hereby sentence each of the accused persons, namely, Gaspar Samwel, Faraja Jastine and Fahadi Amosi to suffer death by hanging. P. R. Kahyoza, Judge 13/12/2024 Dated at KIGOMA this 13th of December 2024 . P. R KAHYOZA JUDGE OF THE HIGH COURT Page. 12 Hon... PROJESTUS KAHYOZA