shomari athumani mwanja another vs republic 2024 tzca 46 16 february 2024

IN THE COURT OF APPEAL OF TANZANIA AT DOPOMA (CORAM: MWARI3A, J.A., KEREFU, J.A. And ISMAIL J J U CRIMINAL APPEAL NO. 650 OF 2021 SHOMARI ATHUMAN < §>MWANJA .1st APPELLANT AYUBU ATHUMAN 2nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (Mambi, J.) dated 12th day of November, 2021 in Criminal Sessions Case No. 20 of 2017 JUDGMENT OF THE COURT 6th & 16th February, 2024 ISMAIL J.A.: The appellants are siblings who, along with three other persons, were arraigned in the High Court of Tanzania at Dodoma on a charge of murder, contrary to the provisions of sections 196 and 197 of the Penal Code. The victim of the incident was Idrisa Abdallah @ Chundu who allegedly met his demise at around 17.00 hours on 30th October, 2016 at Unyambwa Village, Unyambwa Ward in Mungumaji Division within the District and Region of Singida. Other accused persons were Athuman Mwanja @Ndou, Swalehe Athuman @Mwanja and Chiku Bakary @ Lyiuda who pleaded not guilty as did the appellants, and are not parties to this appeal. The prosecution's account has it that, on the fateful evening, the deceased, Wawa Muna (PW1) and Yahaya Salumu (PW4) were at the former's farm ploughing using a tractor that was operated by PW4. At around 17.00 hours, PW1 stepped out to a nearby farm. Suddenly, the appellants appeared, armed with machetes and a knife and rounded up the deceased, baying for his blood. His efforts to scamper to safety fell through as the appellants got the better of him. They allegedly pounced on him, inflicted cuts on his legs, forcing him to fall down. As he fell down, the assailants relentlessly stabbed him multiple times, severely damaging his skull and bowel, leading to profuse bleeding that caused his death. As this was happening, PW1 stood by, about 30 metres away. His plea to have the assailants desist from the attack fell on a deaf ear as the assailants went on an attacking spree while at the same time hurling threats at him. PW1 rode his motor cycle and rushed to the village from which he enlisted an assistance. When PW1 and other villagers arrived at the scene of the crime the appellants and other assailants had already fled, leaving the deceased body lying in a pool of blood, lifeless. The villagers included Abdallah Ally Chundu, PW2, who testified that he was informed by PW1 that the deceased was killed by the appellants. The deceased's body was subjected to a postmortem examination carried out by Dr. Natali Kifungu Kulu, PW3. The examination report (exhibit PI) gave the extent of injuries inflicted on the deceased. Cause of the death was reported to be multiple deep cut-wounds and severe bleeding caused by a sharp object. A police swoop culminated in the arrest of the appellants and three other persons all of whom were arraigned in the trial court. They denied any involvement in the murder incident. At the trial, four witnesses testified for the prosecution. Their factual account was complimented by a Postmortem Examination Report (exhibit PI); and a Sketch map of the scene of the crime (exhibit P2). In defence, the appellants protested their innocence by raising a defence of alibi. The 1st appellant contended that he was informed of arrest of his parents on 30th October, 2016. His brother, 2nd appellant, contended that he learnt about the incident and confinement of his parents a day later. Conclusion of the trial proceedings saw the trial court hold that three accused persons, namely; Athuman Mwanja @ Ndou, Swaleh Athuman @ Mwanja and Chiku Bakary @ Lyiuda had no culpable role in the incident. Accordingly, they were acquitted, while the appellants were convicted of 3 and sentenced to death. This decision did not sit well with the appellants, hence their decision to prefer the instant appeal. The memorandum of appeal has raised six areas of consternation, paraphrased as follows. One, the prosecution case was not proved beyond reasonable doubt; two, the testimony of visual identification was not watertight enough; three, that, the trial court relied on the testimonies of PW3, PW4 and PW5, while such testimonies were contradictory and unreliable; four, that, the trial Judge erred in law and in fact when it convicted the appellants based on an uncorroborated testimony of a witness who would testify that the family of the appellants and the deceased had land dispute; five, that, conviction of the appellants was based on circumstantial evidence that establishes the chain of events; and six, that, the postmortem report (exhibit PI) was irregularly admitted. At the hearing of the appeal, Mr. Erick Christopher, learned counsel, represented the appellants, whilst Mses. Miyango Kezilahabi and Bertha Kulwa, both learned State Attorneys, represented the respondent. When he rose to address the Court, Mr. Christopher sought and obtained leave to add two more grounds to the memorandum of appeal. The said additional grounds of appeal are as follows: 1. The trial court erred in law in relying on the evidence which was not properly taken on oath; and 2. The trial court erred in law by appointing assessors without affording the appellants the opportunity to comment on their selection. Turning his attention to the memorandum of appeal, Mr. Christopher abandoned grounds four and five of the grounds of appeal, while choosing to begin his submissions with the additional grounds. With regard to ground one of the additional grounds, Mr. Christopher argued that, save for the testimony of PW3, other witnesses, most of whom were Moslems, testified on oath and affirmation at the same time. In the learned counsel's contention, this was an infraction of section 198 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2022 (the CPA), which stipulates that a witness must testify on oath or affirmation. In his submission, affirming and swearing a witness at one and same time renders the oath or affirmation irregular and it is as if no oath or affirmation was taken. To buttress his argument, he invited us to be guided by our decision in the case of Nestory Simchimba v. Republic, Criminal Appeal No. 454 of 2017 (unreported), in which such omission was abhorred. The learned advocate drew a distinction between the two terms and invited us to visit the Black's Law Dictionary, 2004, 8th Edition, page 182, at which both terms are defined. Regarding ground two, Mr. Christopher expressed his unhappiness with the trial Judge's failure to invite the appellants to comment on the appointment and involvement of assessors in the proceedings. While conceding that defence advocates in the trial proceedings let the omission pass unchecked, he was insistent that this was still a colossal irregularity that the Court should not cast a blind eye on. He urged us to take the path we took in Abdul Ibrahim @ Massawe v. Republic, Criminal Appeal No. 319 of 2017 (unreported), in which such irregularity was censured. He conceded, however, that in the cited case, the trial did not involve a defence counsel. Reverting to the memorandum of appeal, Mr. Christopher argued grounds 1, 2 and 3 in a combined fashion. On identification, the learned advocate took a swipe at the testimonies of PW1 and PW4, contending that the same are laden with contradictions and are at variance with one another. He particularly singled out pages 48 and 49 of the record of appeal as being the case in point. In the case of PW4, he argued that he did not identify the appellants before the incident, and that the description about their identification was insufficient. He drew our attention to page 6 32 of the record of appeal at which the testimony of PW1 is found, and argued that the said witness was quoted as saying that he was at the neighbour's farm when he heard the alarm. The learned counsel argued that the contradiction resided in the witness's testimony that he saw the appellants killing the deceased. He added that, it is not enough to know a person prior to the incident if no identification was done. Another contradiction that Mr. Christopher clung on was on the weapon used. He argued that PW4 said machetes were used while PW1 said a knife was used. He was also critical of the time that PW1 said he used to identify the appellants. His take is that 10 minutes were not enough for a proper identification. He concluded by submitting that the weaknesses point to a conclusion that guilt of the appellants was not proved. Submitting on ground 6, the learned advocate took a serious exception to exhibit PI which he said was irregularly admitted, on the basis that the same was a certified copy which should not have been admitted. While praying that the same be expunged from the record, he was quick to address us that the chalking off of the said exhibit leaves the oral evidence insufficient to support the charge and that this will result in letting the appellants off the hook. Ms. Kezilahabi's rebuttal submission followed the sequence adopted by her counterpart. With respect to ground one of the additional grounds, her argument was that PW1, PW2 and PW4 swore and affirmed because they were Moslems as were the defence witnesses. While conceding that this was a bit wayward, she contended that nothing untoward can be inferred from it. She urged us to be mindful of our decision in Chacha Jeremiah Murimi & 3 Others v. Republic, Criminal Appeal No. 551 of 2015 (unreported), in which we held that not every apparent contravention of the provisions of the CPA automatically leads to the exclusion of the evidence in question. Ms. Kezilahabi argued that, the case of Nestory Simchimba (supra) cited by her counterpart is distinguishable as witnesses in the said case were not sworn at all. Regarding ground two of the additional grounds, the contention by the respondent's counsel is that failure to inform the appellants on the selection and involvement of the assessors did not prejudice the appellants, as the appellants were represented and their counsel saw nothing irregular about it. It is why they raised no concern in respect thereof. This, she said, was unlike what happened in the case of Abdul Ibrahim @ Massawe (supra) in which other infractions held the sway in the Court's decision. 8 Turning to grounds 1, 2 and 3, Ms. Kezilahabi argued that identification of the witnesses was proper as PW1 stated how he knew the accused persons before the incident and that he named them by their two names. This was, in her contention, re-assuring that he knew the appellants quite well as he has lived with them in the same village since birth. The learned State Attorney argued that the incident occurred in broad daylight, at about 16.00 hours to 17.00 hours. She further contended that PW1 was about 30 metres from the scene of the crime glaring at the incident which lasted for 10 minutes. In the learned counsel's submission, that was enough a time for a proper identification. She implored us to hold that necessary conditions, as propounded in Waziri Amani v. Republic [1980] T.L.R. 250, were fulfilled. Addressing us on the contradictions, Ms. Kezilahabi was insistent that none existed. He invited us to look at page 32 of the record in which it is recorded that both machetes and a knife were used. On whether the prosecution case was proved beyond reasonable doubt, the learned State Attorney was convinced that it was. She relied on the evidence of PW1 and PW4, as corroborated by the evidence of PW2. Regarding ground 6, it was Ms. Kezilahabi's submission was that the manner in which exhibit PI was admitted and read out was flawed. She, 9 like her counterpart, prayed that it be expunged from the record, submitting, however, that the residual testimony was enough to bring the appellants to a blemished account. She argued that, the combined effect of the testimony of PW1 and PW4 is that it presented a coherent story that revealed that the deceased met his demise at the hands of the appellants. She added that cause of death may be proved by circumstantial evidence, as we held in the case of Mwale Mwansanu v. Director of Public Prosecutions, Criminal Appeal No. 105 of 2018 (unreported). In his rejoinder, Mr. Christopher's area of interest was on the relevance of the decision in Chacha Jeremiah Murimi (supra). He argued that the reasoning in which her counterpart sought a solace was confined to matters relating to cautioned statements. He urged us to disregard it. We have duly examined the record of appeal simultaneous with considering the counsel's rival arguments together with authorities relied upon. We are now ready to embark on the disposal journey of this matter. We shall follow the sequence adopted by the learned counsel. Ground 1 of the additional grounds of appeal queries propriety or otherwise of the use of words "sworn" and "affirmed" concurrently and for 10 witnesses who were Moslems. This is clear from the trial proceedings and it is an indulgence that features in the testimonies of all witnesses except PW3. With regard to the words "affirms" or "affirming" as widely used by the trial Judge, our considered view is that the same were intended to be a synonym of the words "states" or "stating" as this is what it means in English. This definition is extracted from the Oxford Languages Dictionary (https://lanquages.oup.com) which defines "affirm" to mean "state emphatically or publicly". We hold this position because we do not think the trial Judge would lavishly and concurrently apply two words that convey the same meaning while it is known that a witness cannot take an oath and affirm at one same time. But even as we hold that the word "affirm" or "affirming" was intended to mean the act of stating, there is this other anomaly that has seen Moslem witnesses sworn instead of being affirmed. This is a needless impropriety that has drawn a genuine concern from the counsel. Whilst we hold a firm view that the witnesses who profess Islam were improperly sworn instead of being affirmed, we are unable to agree with Mr. Christopher that the consequence of such anomaly is to vitiate the testimony adduced by the witnesses. We are of the settled position that the discrepancy is a mere trifling and curable error which has not 11 deflected the course of justice. Our position reiterates the stance taken by this Court in several of its previous decisions. In Asha Haruna v. Republic, Criminal Appeal No. 74 of 2005 (unreported), the Court discounted the impact that arose from inappropriate use of the words "Oath" or "Affirmation", when it held: "We are o f the settled opinion that words 'sworn' and 'affirmed' mean that the witness be he Christian or Moslem will testify truthfully. In that situation, using the word 'sworn' instead o f 'affirmed' in respect o f P. W. 3 and P.W. 4 who undertook to testify truthfully\ occasioned no injustice to the said witnesses or to the appellant. The error, we hasten to hold, is curable under section 388 o f the Criminal Procedure Act\ Cap 20 for the said error did not prevent P. W. 3 and P. W. 4 from deposing truthfully. It appears to us that swearing or affirmed a witness is more a question o f semantics because at the end o f the day, the goal is to cause the witness to solemnly promise to tell the truth and the truth only." See also: Hassan Bacho Nassoro v. Republic, Criminal Appeal No. 2020 (unreported). 12 In the latter case, the Court was firm in its position that evidence recorded in disregard of section 198 (1) of the CPA i.e. without oath or affirmation is no evidence at all. Besides, the Court maintained its stance that the use of 'oath' instead of 'affirmation' and vice versa is 'less evil' and immaterial. It is in view thereof, that we find that the anomaly is curable under section 388 of the CPA. Consequently, we hold that this ground of appeal is destitute of merit and we dismiss it. Next is ground 2 of the additional grounds. The appellants' consternation in this ground is that an opportunity was not availed to them to say a word or two on the suitability of the assessors. Mr. Christopher contended that this was a serious omission amounting to an unfair trial. Ms. Kezilahabi argued that this is not something to haggle about. We need to state at the outset, and as was held in Laurent Salu & 5 Others v. Republic, Criminal Appeal No. 176 of 1993 (unreported), that introduction of assessors and solicitation of comments from the accused person is not bred out of any statutory promulgation. It is an indulgence born out of good practice that is now fused into our procedural dispensation, and the purpose is to ensure that an accused person enjoys a fair hearing in a matter he is involved. It goes in tandem with the requirement of informing the assessors of their role and responsibility in a 13 case that they take part (See: Hilda Innocent v. Republic, Criminal Appeal No. 181 of 2017 (unreported). Our scrupulous review of the record conveys a clear picture that this good practice was given a wide berth in these proceedings and the complaint by Mr. Christopher is nothing short of legitimate. But as we join hands with him in detesting the non-compliance, we are unable to agree with him that the resultant consequence of such omission is, in every situation, to nullify proceedings. Our consistent position is that such non- compliance would yield different results depending on the circumstances of each case. Thus, in Abdul Ibrahim @ Massawe (supra), the Court extracted an excerpt from an earlier decision in Tongeni Naata v. Republic [1991] T.L.R. 54, and held: "As to the position o f the iaw regarding non-compliance o f such a procedure depends on the circumstances of each case. This was expressed in the case o f Tongeni Naata v. The Republic [1991] TLR where the Court stated: "It is a sound practice which has been followed, and should be followed, to give an opportunity to an accused to object to any assessor, however, the result o f such omission cannot be the same in each case. "[Emphasis added] 14 It is in that respect, in the case ofSa/ehe s/o Rajabu @ Sa/ehe (supra) cited to us by Ms. Pima, the Court held that the omission by the trial Judge to explain to the assessors on their role and responsibility did not prejudice the appellant because the assessors participated throughout the trial by asking questions to witnesses o f both the prosecution and defence and at the end gave their opinions." This excerpt brings one key massage which is that the result of the omission in the just cited case was what it was because of other infractions whose cumulative effect prejudiced the appellant. In that case, appointment of assessors flouted the very procedure that guidesthe method of selection, and that roles and responsibilities that go with their appointment were not explained to them. In a case like the instant matter where roles and responsibilities of the assessors were duly explained and they actively participated in the proceedings, posing questions to the parties and giving their opinions on the case, the omission to give a chance to the appellants to comment on their appointment and suitability does not translate into anything prejudicial to them. We are fortified in our view that the result of such omission cannot be what the appellants' counsel 15 desires. We, in consequence, find this second additional ground of appeal unmeritorious and dismiss it. Grounds 1, 2 and 3 carry three main aspect that have drawn a serious criticism from the appellants. The first is in relation to identification that led to arraignment and eventual conviction of the appellants. Mr. Christopher has found faults in it, arguing that contradictions and variance with which the testimony of PW1 and PW4 is characterized, make the identification imprecise. As we delve into this issue, we find that need arises for us to reiterate the legal position as it currently exists with regard to the value of visual identification. This is as was held by the Court in Siaba Mswaki v. Republic, Criminal Appeal No. 401 of 2019 (unreported), wherein the Court accentuated its earlier position to the effect that conviction can be grounded on an eye witness account without calling the victim to testify. It is pertinent to note that reliance on visual identification to convict is not without any strings attached. The condition precedent in this respect is that such identification must pass the threshold set out by the law, as propounded in the case of Waziri Amani v. Republic (supra) and numerous decisions that came subsequent thereto. They include the case 16 of Alfredy Kwezi @ Alfonce v. Republic, Criminal Appeal No. 216 of 2021 (unreported), in which this Court reasoned as follows: "We think it is appropriate to start by reiterating the principle enunciated in an unbroken chain o f decisions of this Court including; Waziri Amani v. The Republic (supra) and Raymond Francis v. The Republic [1994] T.L.R. 100, that before a court can found conviction basing on Visual identification, such evidence must be watertight so as to remove the possibility o f honesty but mistaken identity. In such cases court is required to consider, among others the following matters: one, the time the witness had the accused under observation; two; the distance at he observed him; three, the conditions in which such observation occurred, for instance whether it was day time or night time, whether there was good or poor lighting at the scene; fourf whether the witness knew or had seen the accused before or not; and five, all factors on identification considered, it should also be plain that were any material impediment or discrepancies affecting the correct identification o f the accused person by the witness (see the case o f Kazimiri Mashauri v. The Republic, Criminal Appeal No. 252 of 2010 (unreported)." The testimony of PW1, found at page 32 of the record of appeal, is what should be put on a scale with a view to determining if the testimony 17 of visual identification met the requisite standard. PW1 is recorded as saying as follows: "Baada ya muda tukasikia Yowe Kali tukaenda na kuona mtu anafukuzwa na watu wawili. I run towards the deceased who was being cut by the two persons (accused). NiHona marehemu anakatwa mguu akaanguka chini. "Niiiwatambua Shomari Athumani (1st accused) na Ayubu Athuman (second accused). Wakamkata mapanga marehemu. I was closer around 30 meters. I saw them cutting the head o f the deceased. I warned and told them. Kwanini mnamuua? Muacheni. Shomari was cutting the deceased's head while Ayubu was using the knife. "Washtakiwa wakati wanamkatakata marehemu waiinitishia na mimi. NiHpoanza kupiga simu, washtakiwa wakakimbia. I took my motorcycle and went to inform the relatives o f the decased. Niiishuhudia tangu washtakiwa wakimkimbiza marehemu hadi kumkatakata. The act took around 10 minutes. I went to pick Abdala chundu and Babu Ally and send them to the scene (where the deceased body was lying)." As we cast an eye on the quoted excerpt, we distil the following facts from the record: (i) that PW1 kept the appellant under observation when the incident occurred; (ii) that the distance from which the appellants were 18 observed was as close as 30 meters; and (iii) that there was no impediment which would impair a clear identification of the appellants when they attacked the deceased. PW1 also testified that the incident occurred at between 16.00 hours and 17.00 hours, meaning that it was in broad daylight and that positive identification would not be a problem. PW1 has also stated that he knew the appellants well as they lived together in the same village since his childhood. This testimony beds well with what PW4 stated in his testimony. With all this at our disposal, nothing persuades us that identification of the appellants fell short of the standard required for founding a conviction. It was clear and watertight, and we find that the 10 minutes for which the incident lasted is, in our considered view, nothing short of adequate to have a clear view of what happened and who the perpetrators were. The learned counsel for the appellants has expressed his disquiet about what he considers to be contradictions in the testimony of PW1 and that of PW4, particularly regarding the type of weapon used to terminate the deceased's life. As we move to address this point, it behooves us to restate the trite position with respect to contradictions in the witnesses' testimony. It is to the effect that only contradictions which affect the central story are to be considered to be material and adverse to the party 19 in whose favour the evidence was adduced (See: Mukami w/o Wankyo v. Republic [1990] T.L.R. 46; and Bikolimana s/o Odasi @ Bimelifasi v. Republic, Criminal No. 269 of 2012 (unreported)). Such contradictions must be material and significant and not those that are of a insignificant nature as the latter do not have the effect of discrediting the witness (See: Luziro s/o Sichone v. Republic, Criminal Appeal No. 231 of 2010 (unreported)). On what constitutes material discrepancy, our decision in Disckson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 (unreported), which quoted the passage in Sarkar's Code of Civil Procedure Code, guided that only material discrepancies which corrode the credibility of a parties' case should count. The testimonies of PW1 and PW4 which appear at pages 32-35 and 48-52, respectively, point out, in cumulative sense, that a knife and machetes were used by the assailants to inflict injuries that caused the deceased's death. At no point in time, did any of the two witnesses mention one weapon at the exclusion of the other, and the conclusion we draw is that instruments with sharp objects were used in the attack. This is what PW3 testified on as well. Nothing conveys any sense of contradiction and, with profound respect, we consider the contention by Mr. Christopher hollow and unsupportable. We disregard it. 20 Next is ground 6 of the appeal in which the appellants have taken a serious exception to the manner in which the Postmortem Examination Report (exhibit PI) was admitted. Mr. Christopher has decried the court's decision to admit it and base its decision on it while the entire process was marred by irregularities. This contention has drawn a convergence with Ms. Kezilahabi's and both counsels have implored us to expunge it. The record bears testimony that tendering of the said testimony was a subject of serious contestation that culminated into a ruling in which the trial Judge acceded to its admission. At stake was whether a copy of a document whose original was not shown in court was admissible. As it were, the trial Judge was convinced that the provisions of sections 67 and 68 of the Evidence Act, Cap. 6 R.E. 2019 were complied with. While this anomaly has been roundly acknowledged, most importantly by the respondent's counsel, there is yet another misstep, equally horrendous in our view, committed by the trial Judge. This is that the said exhibit was read out to the parties before it was admitted into evidence. With regard to admission, the law is explicit and we need not break a sweat on it. It is simply that proof of documentary evidence must be through primary evidence, except where it is provided otherwise. This is the import of section 66 of the Evidence Act. The exception to this 21 general rule is the application of sections 67 and 68 of the said law which allow admission of secondary evidence on the condition that such evidence must conform to the provisions of section 67 (1) (a) to (g) of the Evidence Act. One of the key conditions is enshrined in paragraph (c) of sub-section (1) which fits the circumstances of the instant matter. It requires that such evidence must be preceded by an explanation that the original has been destroyed or lost or that for any reason that is not of his own default or neglect, the same cannot be produced in reasonable time. What we distil from the cited provision is that, imperatively, a foundation has to be built on why it is intended that secondary evidence be relied upon. Doing so is an all-important way of ensuring reliability as an objection to its admissibility calls the competence of the document into question - See: D.P.P. v. Sharif Mohamed @ Athumani, Criminal Appeal No. 74 of 2016 (unreported). Our review of the testimony of PW3 does not suggest that a foundation was made regarding the alleged loss of the original report. This, in our considered view, eroded the reliability of the document as the alleged loss was not satisfactorily explained. The other anomaly with respect to this testimony is that the said exhibit was read out to the parties before it was admitted into evidence. This is a flawed conduct which is intolerable. It defied the decency of the 22 proceedings and the settled position which is to the effect that reading of an exhibit should come after the document has been cleared and admitted, thereby forming a testimony for a party. This same 'malaise' has also bedeviled the sketch map (exhibit P2) which was tendered by F 4285 D/CPL Noah, PW5. At page 54 of the record of appeal, the trial court allowed the reading of the said exhibit before it was cleared and admitted as part of the evidence for prosecution. In law, failure to read an exhibit is a fatal irregularity that violates the accused's right to a fair trial - See: Robinson Mwanjisi & 3 Others v. Republic [2003] T.L.R. 218). As rightly argued by both counsel, the consequence is to expunge the said exhibit. We accede to this prayer and order that exhibits PI and P2 be and are hereby expunged from the record. Chalking off of exhibit PI leaves the oral testimony of PW3 on the cause of the deceased's death. At page 44 of the record of appeal, PW3 testified to the effect that the deceased's body had multiple wounds in different parts of his body. He then stated: "The deceased body had blood and various wounds on his body." This testimony sufficiently revealed the cause of the deceased's death and it beds well with PW1 and PW4's testimonies which, though challenged by the defence, largely went unscathed and proved to our 23 satisfaction that the deceased died of an unnatural death and the incident leading to the death was witnessed by PW1 and PW4. This testimony is sufficient to ground a conviction - See: Siaba Mswaki v. Republic (supra). The trial Judge did not therefore, err in his decision. Having disposed of the other grounds, the question that follows flows from ground 1 and it is whether the case for the prosecution was proved beyond reasonable doubt. Based on what we pronounced ourselves on in the other grounds of appeal, the answer to this question is in the affirmative. But as we resolve this question, we wish to remind the parties of the reasoning by Lord Reid in an English case of S (an infant) v. Manchester City Recorder and Others [1969] 3 All E.R.1230, wherein he insisted that the duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. But also, it may be confessed. Gauging the prosecution's testimony, the conclusion we make is that its qualitative value met the threshold set out for proving guilt in criminal cases. In our considered view, the eye witness account of PW1, PW3 and PW4 sufficiently fulfils the court's duty to convict and punish the appellants, the guilty in this case. It is our fortified view that the trial court did what was required of it when it held the appellants guilty and convicted 24 them of murder of the deceased. Consequently, we find nothing of merit to convince us to reverse the trial court's findings. Consequently, we hold that the appeal is barren of fruits and, accordingly, we dismiss it in its entirety. DATED at DODOMA this 15th day of February, 2024. A. G. MWARD A JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL This Judgment delivered this 16th day of February, 2024, in the presence of the appellants in persons and Ms. Patricia Mkina learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.