kaponda makutu vs elia john mazengo 2023 tzhc 16012 28 february 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MOROGORO) AT KILOMBERO/IFAKARA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. Ill OF 2022 REPUBLIC VERSUS KAPONDA MAKUTU ......i<>..>lfT^ACCUSED ELIA JOHN MAZENGO Z"" ACCUSED JUDGEMENT^ Hearing date on: 16/02/2023 Judgement date on:28/02/2023 NGWEMBE,J. The aGcifsed^fJersoh^tarfd~charged for the offence of murder contrary"t6N.sections>>^l-9;§Nand^l97 of the Penal Code [Chapter 16 Revised Edition 2019]. According to the particulars of the charge sheet,^the[two accused ^persons are alleged to have murdered one JOHN M NYERERE''0ji>^^^4"^ day of July 2021 at MbuyunI Suburb In Tlndlga village within Kllosa District In Morogoro region. The Information for the above charge was read over to both accused In Swahlll, the language they well understand and they entered plea of no guilty. In turn the Republic lead by Karlstus Kaplnga and Emmanuel Kahlgl, learned State Attorneys lined up three (3) prosecution witnesses lamely; Dasu Doto Busalike, Chris Doto Busalike and Erick KImbe with one exhibit that is, Post mortem report. When the accused were invited for defence, as were rightly defended by the learned defence counsel Frank Malebeto chose to adduce their evidences as defence witnesses, with no exhibits. Before going in details of the witnesses'testimonies, I feel owed to introduce a brief overview of the incident that made the present case. The accused persons Kaponda Makutu and Elia John are from the i Maasai pastoralist community resident in Kilosa district. In the same district but different villages there was another pa^ralist community of Sukuma tribe to which the deceased, PWl'ahd.,W2 belong. It seems that there happened an incident of .cattle Veft-saisp asso^ed to I pastures allegedly committed^by scramble for ^ some'1yiaasaE>men \\ to the Sukuma herdsmen. It is said that t^^d^ease^alond^with other Sukuma men went to the scene an^^ccessfullysrescued.4^e calves stollen by Maasai men back to their camp. A short moment thereafter, emerged a group of Maasai men confronting ^l^^ul^jma;^|^n^^ exchange of words, a fight erupted. Both'Si(^ eqga^d^ a serious combat, the deceased, PWl and PwJt^re amonglb^ut of that commotion and fighting, the deceased John Nyerere^lost his life. Other persons from both sides were \\ I \\ ^ woundedXsome badly. It is unknown how police investigation was conducted! bufl^eventually the prosecution brought the two accused persons to this house of justice facing charge of murder of the deceased. Having that brief in mind, now is a brief summary of the evidence adduced tjy both parties in this court. Mr. Dasu Doto Busalike, testified as PWl, that on 24/07/2021 around 17:00 hours, when he was at the camp with Chris Doto Kusalike (PW2), were informed by one Maina that their calves have been stolen by a group of Maasal young men. They went with Chris along with the deceased John Nyerere to the scene and saw the said Maasal with those calves, but upon those Maasal seeing them com ng, they ran away leaving behind the stolen flock. They took It back to the camp. Immediately thereafter he saw a group of 20 or more Maasal men approaching their camp some of whom he Identified as the two accused persons, SIrlngo, Payo and others. When he asked them wha was the matter, they responded by a bjoyv to his left eye. He fell down and lost memory. Chris responded and one of the Maasal threw a spear, but It strayed. PWl stood up affdsijaq^ayHM^^ Chris and the deceased In the fight. From Qhere ^i^waS> hidlng)^about 10 paces he witnessed the accused persons be< 'deceased for about 5 minutes. The scene was a bare iand^fdr'^i dearly at around 17:00 hours. He recognlp^djiie tv^^rcus!^ persons for he knew them for almost a year as fellow pastorallsts-sand^used to meet In grazing areas, he Identified them both In thedock. After sometime hexame bade to the camp and heard that John 1^)1^ Nyer^e-was.^™n^i^di:b^^ios©Maasal. Along with others they reported the Incident tovthe village leaders. Invefq^ex^natlon he pointed out that Kaponda was responsible In killing the'-deceased John Nyerere. That he witnessed the killing when he was with Chris and one Sandu Dotto. Added that he also knew one Shaban SImanga who is not among the accused, to have been among the MaasJl on the eventful date. Proceeded to answer the questions put forward to him that, he was confused and lost memory for about 4 minutes after being beaten on his left eye. In re-examination, he stated briefly that, it is after he stood up when he saw those Maasai beating the deceased and he saw Kaponda throwing e club which hit the deceased making him fall down. Chris Doto (PW2) in his testimony said, he was with PWl when Maina came to inform them of the calves' stealing, together with the deceased and PWl rescued those animals. Thereafter, he saw a group of Maasai coming to their camp after rescuing those calves. He affirms that PWl was attacked by those Maasai and fell d^n, but he went for help. Imrr ediately, Kaponda attacked John l^yerere (nowydeceased) on the back of his head using a club. He mentlpn^dCThose^Ma^sai who attacked them as Ella, Payo and KapondavandNpthers wfio continued beating the deceased on various^arts^^^jm^^. W^n John fell down, he sought to save him but^ai|ed>So.^h^raij^ away^d hid in the reed for / about 20 minutes. The vyhole incidentytook about an hour from 17:00 to i( plaijj,land 18:00 hrs. The sceqe was^a X\ and^ear for him to see. Added that- is^kQown io him as they stay in one area. When he carh^j^roQi^diliig^he found John Nyerere is already dead. He re^oited^the inci^^e^tOjthe elder brothers and then to the village i'f leader^^ho , notified p^ice. That he was able to identify the accused personKf0[^^^ about 10 paces from the scene of crime and he identified themilD^the court room. In cross examination, he stated Inter aiia that, the deceased John Nyerere w as murdered by Maasai about 20 of them, all of whom did beat the ceceased. He admitted that at the Police station he stated that the one who beat the deceased to death was Shaban Simanga, that such statement he recorded to police was wrong, the truth is that Kaponda is the one who killed the deceased and not Shaban. Although Elia partidpated in beating the deceased but the one who killed him was Kaponda. Proceeded and admitted that he fully participated in the fight, where he managed to assist Dasu and many others. Also, that when in the hiding place he did not see what was happening to the deceased. It is after the event he heard many Maasai were arrested. In re- examination he explained that when the deceased turned back in order to run, hJ was beaten on the back of his head by a club. That he saw the Maasa| in attacking the deceased because he v\(a^^ng them. Brick Kimbe (PW3) is a Human MedicairDoctor from^iiosa District Hospital, testified that he is the one who cot^ucfed;;^n ^top^of the body on 25/07/2021 aroui^att^o6i^.^H^ deceased ' ' that the body had a fresh wound on the^ad^^es^^^^c^It was bleeding in the nose. He opined that; the cause of^dbath was due to beating with a blunt object on the back'of the deceased's<l|ead. He tendered the post \. mortem examinationsreport, same'was admitted as exhibit PI. Havingyso-festified^;^'^p|os^ution case was closed, hence this court made ^raiingjon caseNto, answer where the two accused persons x> were/found'-tp^have'a case^tOpanswer. Thus, invited the accused persons u to defend against thos^ccusations. The accused were the only defence witnesses4^th^^ad no exhibit to tender in court. In their brief evidences, Kaponda Makutu (DWl) under oath stated that, he neither knew the deceased person nor did he participate in the crime scene. But on Monday 26/07/2021 while at home he received a phone call from Mataya Simanga who is a chief of Maasai Tribe, saying that while at Kiiosa Police Station he was given 21 names of the persons required at the police station, so a public meeting was convened. At the rally, the chief read the names, including the first accused that, they were required to report to Kliosa Police Station. They actuaiiy went there in the chief's vehicle. While at the Police station, their chief introduced the first accused to the OCCID. When he was asked on the event of murder at Tindiga, he responded that he had no knowledge of the incident and that he is living at Kiduhi, about 50 kilometers from Tindiga. However, he was arrested at that Police Station. Other Maasai were also arrested about 20 or 30 of them. Identification parade was conducted at the Police in noon hours, one Ni^i^^nd Siringo were identified among the arrested, but DWl was not identified. He stated that he does not know why the prosecution is^disturbing himjn court. Further testified that, he knCTv^aba^ass^eyilveJn the same village, in'his opinion, it seems Sha'bariHs toeKoneswho did beat the deceased. Prayed this couryo find'^him iOTpcent-.;\ In cross examinatib^, he^^sta^\|h^ he is also a businessman buying goats and other cattle, th^witnesses who identified him may have known him^th^said^^usiness,;,but he did not know them prior to his arresti Added that though he did not file notice of alibi, on the eventfui''date>butHSstru^that he was at home with his fellows including Luka[Mpaye f ! W ^ and\Rikai'ei^isay who were not in court. DW2>.^Elig_^as Mazengo said on 26/07/2021 he was at his home place at Kjduhi village, around 17:00 hrs while clearing his farm, he was called by Ngoyaki saying he should go and assist the police at Kliosa, ! where he went. Upon arrival he was asked about his domicile, which he stated and then was asked about the incident of murder of the deceased. He denied for he did not know anything. The police mentioned the names of Siringo, Chadi and others ail of whom were stranger to him and his name was not in the list that police mentioned. but he was kept in police custody for two months and a half. He saw Kaponda at the police and others who were also stranger to him. He Insisted that, he Is a stranger to the case because he did not know the deceased, even those who were mentioned as responsible for the killing. He knows nothing at all, prayed this court to acquit him. In c ■OSS examination he maintained that he was at KIduhl In his farm on 24/07/2021. While at police he was beaten yet he denied to know anything In respect of the death of the Sceased. That done, advocate Frank prayed to close the defence case.. As the above, the prosecution atf^^ to^m^^^^is-'house of justice to ilnd the accused personrgullty^the offence chWged, while the defence case Is firm to 'K(onera^^hejT^r(^v)any liabilities for murder. Therefore, what.stancis b^^e tl^cpurt fw decision Is whether f of/the\\ the accusedpersons arexguHty offe^^ of murder. The o^nGe^r\]^el|>^^e^Getised persons stand charged Is created ur der<sectloni,19^0l>,the Penal Code. Same provides: - wittpmalice aforethought, causes the death ^of another\person^by an unlawful act or omission Is guHty of murder. From the above provision, two major elements are Important to constitute murder; first: causing death of another person In an unlawful act or om sslon, best known In Latin words actua reus, second: having malice aforethought also known as mens rea. As to what constitutes malice aforethought Is sufficiently provided for under section 200 of the Penal Code, which provides thus: - ''Section 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 a ny 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 ofor grievousjnarm to-.some person. whether that person Is the person actaally.^lled;;^^^^t, although that knowledge Is accompanlecl ^yjndifference whether death or grievous bSdlly^tim^s^^used or not, or by a wish that it may not be^aused;^ (c) an intent to co/pmit an pffepce pupishable with a penalty which Is graverjhan Imprl^ohrnentfop three years; (d)an M^ntl<^^y--the^prpm to facilitate the flight or escape ^^^^stpdy^^ny person who has committed or attempted to^ommlttag offence. Before the court of law, in establishing the ingredients above, the prosecutorNtmjs^rove that the deceased in question is actually dead and suffer ad an unnatural death. Accc rding to the surveyed evidence of both sides. It is clear that the late John Nyerere died an unnatural death. PWl and PW2 testified to have seen the deceased before and after death there is no doubt that John Nyerpre Is dead. PW3 who examined the deceased body testified that the said John Nyerere's body was bleeding from the nose, with various bruises and wounds of different width, length and depth on various parts of the body, but the worst was a deep wound of about 50 X 4 cm on the head leading to severe brain Injury which resulted to death as per exhibit PI. It Is also not disputed that the deceased died as a result of being hit several parts of his body In a fight which Involved many people of the two communities, Maasal and Sukuma. Therafore, In deciding guilt of the accused, two Interdependent Issues arise; One - whether the accused persons are the ones who killed ! <x the deceased. Two - If the first Issue Is answeredNn affirmative, the subsequentI Issue Is whether the accus%dN.^persons^ had malice aforethought In killing the deceased. In resolving these Issues, this court follows theftrlte law on burden and standard of proof In crlmmal^lals^atj^h^ bears the burden to prove guilt ^of^e accus^^be^nd reasonable doubt as provided for under section 3 (^^"^fxT^etvidence Act along with Makolobela Kulwb^^^^kolobela and Eric Juma alias Tanganyika [2002] T,L.R'^M6">and'^Akwii^ Vs. R, Criminal Appeal No. 438 of 2019^ P^roof beyond\reasonable doubt means to establish watertight evIdenceJInkIng the, accused with the offence he committed. It has been \Xv ]) so held In^maiiy cases. Including that of Samson Matiga Vs. R, Criminal Appeal No. 205 of 2007 followed by the case of Daimu Daimu Rashid @ Double D Vs. R, Criminal Appeal No.5 of 2018 where It was held: - "A prosecution case, as the law provides, must be proved beyond reasonable doubt. What this means, to put it simpiy, is that the prosecution evidence must be so strong as to leave no doubt to the criminal iiabiiity of an accused person. Such evidence must irresistibly point to the accused person, and not any other, as the one who committed the offence" This being a murder case, the most serious offence which attracts the most severe punishment which under section 197 of The Penal Code is death. The mode of death is prescribed in section 26 of The Penal Code, that is death by hanging. Since such punishment is the i I most serious in our country, then proof of it must ieave no reasonabie doubt meaning the proof must be beyond reasonabiONdoubt as our iaws so requireJ Centrai to the question of whethervthe aCcusedy^persdns are the ^ N\ \MA ones who kiiled the deceased, is theJs^e\of identification. This is because bbth accused personsQio^^o^l^^n^^^v^taken part in the fight that cuiminated to^th^eatfivof^es^ceased, but they claim on the fateful date they were in/their\viiiage^ called Kiduhi about 50 Kilometers from the^entfulsyiliage ofTindiga. The rdLe^as toXpropeY\identification is well established that, the ''X ^ Vv court evidence unless it is satisfied not o^nly that eqvironn^ts were friendly to the identifying witness, but also taking into account ail other prevailing circumstances, that the possibilities!^;i>of_^ identity was eliminated. A comprehensive consideration of this principle was made in the case of Anthony Kigodi Vs. R, Criminal Appeal No. 94 of 2005, in which the Court of Appeal hed inter aiia\hat.\ - "We are aware of the cardinal principle iaid down by the erstwhile Court ofAppeal ofEast Africa in Abdaiiah bin Wendo and Another vs. Rex (1953) EACA 116 and followed by this Court in the celebrated case of Waziri Amani vs. Republic 10 (1980) T.LR 250 regarding evidence of visuai identification. The principie iaid down in these cases is that in a case involving evidence of visuai identificatioOf no Court should act on such evidence unless aii the possibilities of mistaken identity are eliminated and that the Court is satisfied that the evidence before it is absolutely watertight..." C\ The above has also been followed in a good number of cases that I 1 \\ came later, Including the case of Mafuru Mahyama ^Others Vs. R, (Criminal Appeal 256 of 2007)[2011] TZGANL29 and^irpainother case of Jaribu Abdallah Vs. R, OiimneT^^eal^ of 1994 CA (unreported) which I find relevlnt-vt"b^ouf<ase as. was held: - "In matters ofidentilication, itls^^ei^gh mereiy to took at factors favouring agcurate/ideMgad^ equaiiy important is the credibiiity of>the\witness. The.conditions for identification \ ^ V\ W I] might appearJdeaTbut:thatds~n'q/guarantee against untruthfui evidence>^he abiiity offhe witness to name the offender at the eariiesbpossibie.momentis in our view reassuring..." ratlonaleN^of having strict proper Identification of the accused and the reliabiUt^of the witness testifying it, is to avoid possibilities of an innocent person being implicated and punished mistakenly, while leaving the true perpetrators at iarge. In our case as the facts stand, death of the deceased happened in a commotion and fight among two groups of young persons involving more than 20 of them in one group and good number of persons in another group. The two prosecution witnesses were also partisan in the fight siding with the deceased. Witnesses also testified that such fight 11 involved throwing clubs. It seems the fight was so serious that some from both sides were wounded, In the course of fight one died at the scene, while the witnesses ran away to rescue their lives. In the case of Republic jVs. Isaya Wendeline Amandus @ Mllanzl and 2 others. Criminal ^ession Case No. 49 of 2016, this Court sitting at Mtwara I Registry, faced similar Issue of proper identification In murder allegedly committee In the commotion and movement of the angry mob, the court addressed as follows: - "In this case, the prosecution did not di^jb^^ny"'te^n as to why they did not caii, eye witne^^ to\^if^diT^s;^^^rt. Morq so, PWl did not disciose ho^h^ii^ie^'^t-^the three accused persons out (^(^^^r^j^your^ beating the deceased? What was^speci^^to^t^Ihre^ccused persons outofmany angry^d^ie b^ting^f^^^eased?" I have made fuHtje^refer^^t^precedents In which Identification under thJ likC^iiifeumstanc^vya^^lscu The principles referred herein will standsas guldancesin^handllng the Issue of Identification In the case|!at^hand>^\^he ca^^ DPP Vs. Nyangeta Somba and 12 other^^^l993]\T^L.R^9 (CA), where one village passed away. It seems the^^ere^^ had some questions surrounding the death, so they sought answersjrom a fortune-teller who In his profession told them that their relative was not actually dead, but was bewitched and turned to a zombie @ msukuie by some two witches he named. The community resolved that the said two witches must be put to death. One of the witches got the wind, ran to the police. When the police came to the village the first 'witch' was already crucified and burned beyond recognltlop. The Issue of Identification of the murderers was in place, the Court of Appeal upheld the trial court's decision by holding: - 12 "Given the huge crowd, the commotion of the moment and the charged atmosphere, reiiabiiity of the identity evidence of the three witnesses was doubtful." I In another case of Mereji Logori Vs. R, Criminal Appeal No. 272 of 2011 (Criminal Appeal 273 of 2011)[2013] TZCA 408, robbery was committed In a busy street of Metropoie area of Arusha city, state Tient of a single identification witness did not eliminate the possibility of mistaken identity. The Court therefor^eld: - "Apoiving the principies, we laid dowri^niiyWazifisArnariiyv "Appl Repubiic (supra) to the present appeal, we^^^nqt^ink all possibilities of mistaken identliy::::wer^liminat^with respect to the appellant. Possibilitjbthat-^someoh^else other than the appellant was responsible forthe offence that took place in a busystreet cannot blruied^^d^ Such^ubtsshouid operate in favour ofthe appeiianh Yet inCan^en cas^of Andrea Zabron & Another Vs. R, (Crimina 'Appeal488:df.^016)[2019]TZCA 274, where a group of \\ more'than BO'^people assaulted and killed the deceased alleging him to \V ! W be a thief. MateriaK witnesses testified that they fled the scene having W )^ failed to -escue^the deceased from his hard times and the incident occurred e round night hours, the Court of Appeal ruled inter aiia that:. - "Therefore, in our considered view, in the crowd of30 people or more, the commotion of the moment and the charged atmosphere, reliability of the identity evidence of the PWl, PW4 and PW5 was highly questionable and doubtful." 13 All those precedents converge into one principle of proper identification in an ecstatic movement and commotion of angry young pastoraiists with their traditional weapons including sticks, dubs, knives, machete and so on, seriously engaged into fight, I think proper identification to single out one or two of them require strict proof. In this triai, the prosecution managed to caii in this court only two witnesses inciuding a medical doctor who is not a witness of evidence but a professional doctor who opined on the source of death according to his professional examination of the deceased corpus. Accordingly, I find no doubt, witnesses^^pf fact^are-^oniy two>^^l and PW2. As per their own statements, a grdupvpf Z'O^oLrnore^peopie from Maasai community invaded the^^andp^•vyhi^^M ra^y peopie as well. A fight happened to whiclj^^G(erea^^^Wl,^W2 and others fuiiy engaged. Above aii, it seems PWl andXWZ'^yieided, ran away and hid in different piaces iea;j^i^ ttie deceased^ aHjight. They both came out of their respecti\^hi^g'«|3l^^W^et^^ ended and got to know that the deceased: h^ld^ied. They.strongiy suggested that the first accused is XL the one-wtio. infiicted..aixieadiy<biow by throwing a ciub from the back on the deceased'sjhead^vyhicm"sent the deceased down. Yet it is unknown \\ I \\ v\ whethejxttiat blow, i^s the one that kiiied the deceased because they say LI even after>the deceased fell down aii the 20 or more Maasai men continued beating the deceased. On the other side, the accused persons brings forward a kind of alibi defence which, despite not compiying with section 194 of the Criminal Procedure Act, also their defence bring sense in some points; nothing piausibie was presented to exhibit the suspicion, while there being more than 20 Maasai at the scene and ciaiming that aii were attacking the deceased, the prosecution brought only these two 14 witnesses without watertight evidence, that they were present at the scene ieave alone being involved in the fight. Considering that they were not caught at the scene nor in any conduct which wouid faii under the doctrine of res gestae, the evidence was needed to estabiish why they were picked out of many Maasai, otherwise even their aiibi defence is convincing. Apart from that I have observed some omission in the prosecution evidence and contradictions aitogether. First i^in respect to the investigator of the event as to how he figur^c^Nqyt^o^a^sed out of more than 20 perpetrators and it is unkji^n, the Zlsnairi^g^^ifto the Maasai chief were devised on which inv^tigati^nVwli^tfte said chief I X\ was not cailed before this courtH6::;;testif^on wt^re and when he obtained those 21 names. Moreover, it seems the wtate^'tlii^case was not investigated at aii by a professionaK^^^(^lifj^d^di^e^l^ It is ciear, faiiure to have aj I^^sai!^hief\m^ing persons to Kiiosa Poiice Station, no OTe^ra^d^be^t^'g^ed in court. Surprisingiy, the prosecution faiied/tr^raii;;;;evenvtharpo I ^ I ^ S. X 'V • who conducted the aiieged ^ identification paradei Consi&gpqgXhe testimonies of the two witnesses, yet I find severai contradictions in their testimonies. First; while PWl stated that the incident took about 5 minutes, PW2 estimated that it took about an hour. Aisoi PWl insisted that the first accused is the one who murdered the deceased, while PW2 maintained that aii the Maasai who were more than 20 n' ordered the deceased. This is aiso adopted by PWl partiy in his statem ent. Second;PWl was the first to be attacked feii down and lost memc ry for about 4 minutes after being beaten, when he regained 15 his senses, he ran away. At the same time, he persistently testified that he saw the accused persons beating the deceased. PW2 stated In chief that after he ran to the reed where he hid himself, he was able to see the Maasal men beating the deceased. In cross examination he changed again saying that from his hiding place, he was not able to see what was happening to the deceased. Further admitted that In giving his statement at police station, he mentioned one ShabanI who hit the deceased with a club, yet he repealed It and mentl^i^ the first accused Kaponda Ij'Iakutu when was testifying In thls^court asNthe one who hit the deceased. .'TV. Change In mentioning the perpetrator, undei/the^ircumstance watered down PW2's credlbillt^^hefe'~ls^'no''rq^fi^explanatlon as to why he mentioned Shabanl,^th^0ne he^nows^lnjlpe earliest stage and at this stage of trial changed to andther p'br^on. In the case of Jaribu X\ ^ Abdallah Vs. R it.was felterated'that credibility Is on the witness who Vx \K \X mentions the perpetrator ongthe earliest stage. In our case the witness despite he vl^ menti^ed^;^ perpetrator when giving his statement before the pplic^h&rhentlonedjone person different from the person he mentions befdrievthlXcourtXBecause PW2's previous statement differs from VV I ^^ this court, obvious the two statements cannot hls^stlmony'before be relled'^&pojnjhy most probable position Is both two statements are false, this Is more where the court cannot properly find the true statement between the two. In the case of Bahati Makeja Vs. R, [2010] T.L.R. 49 the Court of Appeal had this to hold in case two statements given by the same person contradicting each other; - '7/7 or^er to do substantivejustice in a case, the court attempts to separate the grain from the chaff, truth from faisehood.' Where this is not feasibie because the grain and the chaff are 16 Inextricably mixed up, the only available cause Is to reject or discard the evidence In Its totality" In similar vein, the case of Ronjino Ramadhani Ronji and 2 others Vs. R, Criminal Appeal No. 75 of 2019, CAT at Dsm, the Court of Appeai foiiowing the above and its other previous decisions held: - "In the case of Mohamed Said v. Republicj^Crlmlnal Appeal No. 145 of2017(unreported) we restated the principle that a \ \\ witness who tells a He on an Important polntl^ould^ljar^y^be believed on other Important points.' In Mohamed Said's case, actuallvgt->vvas'^heid.'that a witness who tell a lie on a material polntshoulChardl^be believed in respect of other \\ \\ ~ points. This court finds that paying ariy^reliance to PW2's statement as to who murdered the,deceased<5rnong olher aspects can pose a serious . , . A\ peril to justicejn-thjs ^ case^\v^^ The !abovesi^one.^pect', also when cross examined he admitted that w|ieh hejan and hid-hiijiseif in the reed, he couid not see what was \\^ happening to the.deceased. Generaliy, both witnesses left the late John Nyerere^a^lh(^Jr^e m^ll\/p In fight. They both came to know that he was dead after they resurfaced from their respective hiding places. Under the above circumstance, this court cannot have any ground upon which to rely on these two prosecution witnesses, their credibility in respect of proper identification is weak and tainted. Therefore, there is oniy one conciusion that, the prosecution failed to bring strong evidence in this court on proper identification of both accused persons at the crime scene. 17 Generally, there are serious doubts breeding from the prosecution evidence, tt is unknown what methodology was applied In filtering out the two accused persons who again are said to have been just called by their chief for what they say was to assist the police. In absence of a serious evidence linking the accused persons to the said murder, the serious dcjubts pointed above run in support of the defence and the alleged alibi. The first issue is thus resolved In negatlv^that although it is established that the deceased died an unna'tbral deaffiNand that such \X /> death was occasioned as the result of MntlngXiUs^-pnkn^ killed the deceased on the fateful date. Althoughswltlr'a>/bunch--Qf authorities from Zuberi Abdallah Vs. R, CHd^akAppeal'^^o. 144 of 1991 (unreported) and Israel ^sezePO^M|rtanhVsJi Criminal Appeal No.117 of 2006 to Baj^i^Ndimguru^^|J4oses Vs. R, Criminal Appeal No. 361(^F ^2W8<outN^^ all converge into one conclusion th^aj^ng^ccasiqned^om a fight does not contain malice aforethought^T^'^yot govint^the-second Issue for obvious reason that, the s^c0n!d..J^^o^Jwh^e accused persons killed with malice afore^h^u|t^V.^^e the first issue of whether the accused personsvare the ones who killed the deceased in the first place. Such Issue t^^g.,^ey resolved in negative, then the issue of malice aforethought cannot arise. In the circumstances of this trial, curiously I am troubled, troubled Indeed to find which evidence if any, energized the prosecution to detain the two accused persons In custody all that time, and indeed prosecute them in this house of justice? Is it true that the prosecution and investigators performed their noble duties to unearth the true cuprite of killing the deceased? The only viable conclusion In this aspect Is that the 18 investigators (if any) and the prosecution abdicated their noble duty to conduct thorough investigation on the death of the deceased and the prosecution, likewise, had no reliable witnesses to establish and prove their case. The ptuatlon of this case has reminded me, the warning issued by an eminent legal author A. D. Singh's on Judgements and How to Write them, 4"* edition, defined judgement to mean an expression of the opinion of a judge arrived at after due consideration of the evidence and of the arguments advanced before him^-It Is a final verdict of the -/N accused or appellant. ProceededXtd^sayvjt is^a^cardina! C\ principle which must not be forgotten thatN§^oui:|j.udgement should be based strictly on th^~^^e^n^qn^i(ecord, and not on outside evidence, however Squired;. Similar position was/P' \\^ .captured bys^e Cojjnjt of Appeal in the case of Hamis Rajabu Dibagula Vs^^!^\[20b4] T.L.R. 196 where they N\ \\ ' described th^ont^tSv^^cou^Ji^^ment to comprise among others, evidence ad^c3^i couf^XaH^maf^al portion of evidence adduced I N\ jC P duringxtrial>s.^a!,ysi^o(;T^ual issues; legal issues and reference to precedents where^ apiali^ble before arriving Into conclusion. In this^trlal; one may ask which material evidences are viable to lead the court to convict the accused persons? I find none, hence I may safely conclude that the prosecution failed to prove the accusations against the two accused persons beyond reasonable doubt. Above all the allegations of murder was not investigated at all, thus led the prosecution difficult to build a prima facie case against the accused persons. f|loreover, the prosecution failed to call material witnesses like the Maasai chief as discussed above. 19 Unfortunate may be to the prosecution, this court find the prosecution failed to establish and prove an offence of murder against the two accused persons. Consequently, Kaponda Makutu and Elia John are not guilty of the offence charged; I therefore, proceed to acquit them forthwith and order them be released Immediately from prison custody unless otherwise lawfully held. Order accordingly. DATED at Morogoro in Ifakara In opq^ 28"^ day of February, 2023. •^V'r P. J. NGWEMB JUDGE 28/02/2023 Court: Judgment delivered at Morogoro In Ifakara in open court on this 28'^ day of February, 2023 in the presence of accused and Mr. Frank Malebeto defence counsel and Karistus Kaplnga State Attorney for the Repu(3lic. ■I-, Right to appeal to the Court of Appeal explained. C0 > X v- P. J. NGWEMBE JUDGE 28/02/2023 20