IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DODOMA SUB REGISTRY

AT SINGIDA
(ORIGINAL JURISDICTION)

CRIMINAL SESSIONS CASE NO.lll OF 2022

THE REPUBLIC
VERSUS
1. ABAS YUSUPH ISSA
2. VICENT PETER
3. TUMAIN SHADRACK
4. JUMA PETER
5. MUSSA HASSAN KULABATA

JUDGMENT
Date of Last Order: 9/5/2024
Date of Judgment: 31/5/2024

MASABOZJ.:-
This is a judgment of a murder trial involving five accused persons who are
Abas Yusuph Issa, Vicent Peter, Tumaini Shadrack, Juma Peter, and Mussa
Hassan Kulabata. They are alleged to have carried out a common intention
of killing the deceased who is commonly identified by his hearing impairment
as "Bubu"a Swahili wofd for "deaf", as his true name is unknown. As per
the information, the murder incident was committed on 1/11/2021 at
Mgulwang'ombe at Manyoni District, Singida Region. When these charges
were laid at their door, they all repudiated. Hence, this trial.

Page 1 of 21
During the trial, Ms. Elizabeth Barabara, learned State Attorney, led the
prosecution team. Assisting her were Messrs. Nehemia Kilimuhana, Hussein
Mkeni and Godfrey Isack Songoro, all learned Attorneys. The defence has a
team of five learned counsels comprising of Messrs. Cosmas Luambano,
Peter Ndimbo, Hemed Kulungu, Jacksori Mayeka, David Rutayuga, counsels
for the first, second, third, fourth and fifth accused persons, respectively. I
thank all the counsels for their industry and dedication in discharging their
respective duties.

The prosecution team paraded four witnesses and four documentary exhibits
to prove the allegations above stated. The witnesses were: PW1- Aziza
Hassan, a hamlet leader who saw the deceased's, body and reported the
incident to Manyoni police station; PW2- Charles Fabian Maziku, a doctor
who performed the postmortem examination; PW3- Elizabeth Mkela, a
Resident Magistrate at the Primary Court of Singida District at Itigi who
recorded the extra-judicial confessions the second, third and 4th accused
person in her capacity as a justice of the peace and PW4 was F7151 D/SGT
Paschal, the investigator of the case who also recorded the caution
statement of the first accused person.

From these witnesses and exhibits, it was gathered that, on the evening of
the fateful day, 1/11/2021, the first four accused persons were at a pub
styled as 'Mama Joy's pub'. As they were seeping their alcohol, the first
accused person told them that the fifth accused person, Mussa Hassan
Kulabata, who was then a supervisor of a mine of one Selemani at London!

Page 2 of 21
area, was in need of human blood and private hair which would boost

production at his mines which were performing poorly. That, should they
agree to help him he will pay each of them a sum of Tshs 200,000/= as the
fifth 5th accused person had promised to pay him a sum of Tshs 1,500,000/=
in consideration.

:Vi
The deal was concluded and they formed a common intention of killing Bubu
-who was also around at the pub as he seemed to be an easy target. They
started to monitor his movement. When they saw him leaving the pub, they
•followed him and-attacked him. The first accused person who was the
principal offender, assaulted him with an iron bar on the head and as a result
of which, he instantly died. Then, the first accused collected his blood and
private hair. When he finished, his accomplices helped him to hide the
deceased's body in a bush and they parted ways afterward. The first accused
person packed the two items well and sent them by bus to the fifth accused
person.

Meanwhile, on the morning of 2/11/2021, the body of the body of Bubu was
spotted in the bush. PW1 being the hamlet leader went to see it and notified
the police. She recalled that the deceased's body had a large wound on the
forehead. After being notified, the police went to the scene led by PW1. PW4
was among the police officers who went to the scene. He sent the deceased's
body to the mortuary. Later on, a postmortem examination was conducted
to ascertain the 'cause of death. The investigation of the incident also
commenced. The accused persons were arrested and put under police

Page 3 of 21
custody. While there, the first accused person confessed to the offence in
his caution statement which was admitted as Exhibit P4. The 2nd, 3rd and 4th
accused persons also confessed in their extra-judicial confession statements
which'were recorded by PW3 and admitted as exhibits Pl, P2 and P3,
respectively.

For the defence, each of the accused persons testified under oath and did
not call a witness. In these testimonies, each of them distanced himself from
the-Offence. Save for the fifth accused person, the remaining four accused
persons alleged to have been severely tortured and forced to confess. The
2nd, 3rd and 4th accused persons retracted their respective extra-judicial
statements and asserted that while making such statements they were not
free agents as they had been severely tortured while at the police station.
Also; they alleged that when they were being transported to the justice of
the peace at the Primary Court of .Manyoni at Itigi which is about 40
kilometers from Manyoni Police station where they were detained, they had
a stopover in the middle of a forest. While there, they were threatened that
should any of them date to refuse to confess to the murder, he would be
sent back to the forest and be shot dead. Out of that fear, when they got to
the justice of the peace, they confessed commission of the crimes.

Vindicating his innocence further, the third accused person, Tumain

Shadrack while testifying as DW3 stated that when he was taken to the
justice of the peace, he was too weak and unable to sit. When he got to the '
justice of the peace, he told her that he was severely beaten. Surprisingly,

Page 4 of 21
she ignored him and proceeded to record the statement. PW4 who alleged
to have been severely injured in comparison to others, had large scars on
his left leg which he alleged to have been exacerbated by the torture.
However; much as all the first four accused persons alleged to have been
taken to hospital for treatment of the injuries sustained from the torture
incident, hone of them except the fourth accused person produced a PF3 to
back up his assertion. The PF3 was admitted as Exhibit D2. It shows that he
was treated at Manyoni Hospital oh 11/11/2021. Also, the first accused
person had a letter dated 11/5/2022 addressed to the OC CID Manyoni. In
* s

this letter, he was requesting to be furnished with a PF3 showing that was
treated at Manyoni Hospital on 11/11/2021.

the first second and fourth accused persons asserted further that 9/11/2021

was not their first day to be taken to the justice of the peace as they were
first taken to a justice of the peace at the Primary Court of Manyoni District
at Manyoni (town) on 8/11/2021. The policemen had instructed them that
they should confess the commission of the crime but in defiance of such
order, each of them told the justice of peace the ordeal he had been through
while under custody, and the justice of peace recorded the same. In
retaliation, when they returned to the police station they were severely
tortured before being taken to another justice of the peace at Itigi on the

following day.<

In a nutshell, this is all that I gathered from evidence. Further, at the closure

of the defence, the parties prayed and were granted leave to file final

Page 5 of 21
submissions. I commend all the counsel for filing their submissions on time.
I have thoroughly read and considered all Of them. I commend and thank all
the counsel for their insightful submissions and for dutifully discharging their
respective duties with dedication.

The sole issue awaiting determination is whether the charge has been
proved. According to section 196 of the Penal Code, Cap 16, the offence of
murder is committed where, any person who, with malice aforethought,
causes the death of another person by an unlawful act or omission. For it to
be considered as proved, its two essential ingredients, namely the
murderous intent commonly understood as malice aforethought (mens rea)
and the unlawful act or omission from which the death occurred (actus reu^,
must be proved. The onus to prove these is on the prosecution as it is an
elementary rule of law and practice that in criminal trials, the burden of proof
lies exclusively on the prosecution and the standard thereof, is proof beyond
reasonable doubt (see Jonas Nkize vs. R [1992] TLR 213; Frank Richard
Shayo vs R Criminal Appeal No. 333 of 2020) [2024] TZCA 230, TanzLII,
Malimi Peter vs R (Criminal Appeal No. 480 of 2020) [2024] TZCA 65
TanzLII and Matibya Ng'habi vs Republic (Criminal Appeal No. 651 of
2021) [2024] TZCA 34 TanzLII). In the latter case, the Court stated thus:
"At the outset, it is instructive to state that, this being a criminal
case, the burden lies on the prosecution to establish the guilt of
appellant beyond reasonable doubt. In Woodmington v. DPP
[1935] AC 462, it was held inter alia that, , it is a duty of the
prosecution to prove the case and the standard of .proof is
beyond reasonable doubt. The term beyond reasonable doubt is
not statutorily defined but case laws have- defined it. For

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 instance, in the case of Magendo Paul & Another v. Republic
[1993] T.L.R. 219 the Court held that:
"Fora case to be taken to have been proved beyond
reasonable doubt its evidence must be strong against
the accused person as to leave a remote possibility
in his favour which can easily be dismissed. "
It is noteworthy that, the duty and standard of the prosecution
to prove the case beyond reasonable doubt is universal in all
criminal trials and the duty never shifts to the accused."

Therefore, to earn the desired conviction in this case, the prosecution must
lead evidence to prove beyond reasonable doubt that, a person commonly
identified as Bubuxs dead; that the deceased BubutM not die naturally; and
that, the accused person herein with malice aforethought unlawfully caused
his death.

As there is more than one accused person and the allegations are that they
jointly committed the murder, it is apposite I think, at this early stage, to
refer to the provision section 23 of the Penal Code, Cap 16, which provides
that:-
"23. When two or more persons form a common intention to
prosecute an unlawful purpose in conjunction with one another,
and in the prosecution of such purpose an offence is committed
of such a nature that its commission was a probable
consequence of the prosecution of such purpose, each of them
is deemed to have committed the offence."

-Hence, if at the end of the analysis of the evidence on record, it is established

that indeed the five accused persons herein formed a common evil intention

Page 7 of 21
to commit murder and they executed their intention as alleged, they will all
be liable for murder and they will suffer the same consequences.

The evidence summarized above has revealed that the following facts are
undisputed. That,, a person commonly identified as Bubu who was an
irregular resident of Mgulwang'ombe hamlet at Manyoni town is dead. The
nature of his death was similarly undisputed. Although the report of the
postmortem examination of the deceased did not pass the admissibility test
and much as the credibility of PW2 as a doctor was highly shaken as he had
My
nothing showing that he was indeed a doctor, the oral evidence of PW1 and
PW4 sufficiently proved thesefacts. These two witnesses went to the scene
of the crime. They saw the deceased's body and their coinciding account was
that the deceased's body had a large wound on the forehead which likely
occasioned his death. Further to these two witnesses, the second and the
fourth accused; persons who were also residents of Mgulwang'ombe,
confirmed that they were duly informed that Fubydied an unnatural death.
In the foregoing, and guided by the decision of the Court of Appeal in Daniel
Thomas @ Yusuph @ Ngeni & Another vs R (Criminal Appeal No. 120
of 2022) [2024] TZCA 103, TanzLII arid other cases on proof of death in the
absence of a post-mortem report, I find these two elements to have been
proved without reasonable doubt.

Having resolved this, I will now turn to the culprit(s) of the murder and
determine whether the accused persons herein are guilty. The accused
person’s guilt can be proved either by direct evidence, circumstantial or

Page 8 of 21
through confessional statements of the accused person(s). In the instant
case, the prosecution's evidence is largely dependent upon the accessed
persons' confessions as contained in the cautioned statement of the first
accused person (Exhibit P4) and the extra-judicial statements of the second,
third, and fourth accused person (Exhibits P2, P3 and P4). Supporting these
confessions is the oral testimony of PW4 who recorded the confession of the
first accused person and PW3 who recorded all the extra-judicial confessions.

The law is settled that, a confession ■statement,

V be it in the form of a caution
statement made before a police officer or an extra-judicial statement made
before a justice of the peace is an admissible and valuable piece of evidence
(see sections 27 and 28 of the Evidence Act, Cap 6 R.E 2022). It can be
acted upon to convict the accused even in the absence of corroboration
provided that it was voluntarily made and it has the quality of a confession
as defined under section 3 (1) (a),J (b), (c) and (d) of the Evidence Act
meaning that, it must contain an admission by the maker of the culpable role
he played in the offence he is accused of.

Essentially, a confession is presumed to have been voluntarily made unless

it is repudiated or retracted in which case, the law requires that, an accused
person intending to object to the voluntariness of a confession must do so
at the admission stage and not during cross-examination or defence as
stated in the case of Nyerere Nyague vs Republic (Criminal Appeal Case
67 of 2010) [2012] TZCA 103, TanzLII where the Court stated thus;
"As we understand it, the relevant law regarding admission of
accused's confession under this head is this: First, a
Page 9 of 21
 confession or statement will be presumed to have been
voluntarily made until objection to it is made by the defence
on the ground, either that it was hot voluntarily made or not
made at all. (See SELEMANI HASSANI v R Criminal Appeal
No. 364 of 2008 (unreported). Secondly, if an accused intends
to object to the admissibility of a statement/confession, he
must do so before it is admitted, and not during cross
examination or during defence."

Cementing this position in Emmanuel Lohay & Another vs Republic

Criminal Appeal 278 of 2010) [2013] TZCA 292 TanzLII, the Court of Appeal
dealing with a belatedly raised objection held thus;
"In the instant case the objection, if any, ought to have been
• taken under Section 27 of the Evidence Act that the
statements were not made voluntarily or that they were hot
made at all. Objection could have also been taken under
Section 169 of the Criminal Procedure Act that they were
taken in violation of the CPA, etc. If objection had been taken
under section 27 above the trial court would have been duty
bound to conduct a trial Within trial to determine the
admissibility or otherwise of the statements. It is trite law that
if an accused person intends to object to the admissibility of
a statement/confession he must do so before it is admitted
and not during cross-examination or during defence -
Shihoze Semi and Another v. Republic (1992) TLR 330."

Normally and as stated in countless authorities, when ah objection is timely

raised during the admission stage, the court must stop everything and
proceed to conduct a trial within trial to determine the voluntariness or
otherwise of the alleged confession. The procedure allows the court to listen

Page 10 of 21
to both parties on the voluntariness or otherwise of the confession and make
a-finding thereof (further to the above-cited cases see Twaha Ally And 5
Others V R Criminal Appeal No. 78 of 2004 (unreported), Paulo Maduka
& Others vs Republic (Criminal Appeal 110 of 2007) [2009] TZCA 69,
TanzLII).

The-accused .persons herein were, therefore, duty-bound to make their

objections at the admission. Objecting at that opportune moment would
have enabled the court to hear both parties and determine the truthfulness
of the following three seemingly intriguing facts and allegations: one, that
the-fourth accused person was severely injured while under police custody
and for thatreason, on 11/11/2021, a day before arraignment in court, he
sent for treatment at Manyoni Hospital and issued with Exhibit D2; two, the
disclosure made by the third accused person to the justice of the peace that
he was severely beaten up while at the police station; and three, the
preference of the Primary Court of Manyoni District at Itigi which is about 38
to 40 kilometers away from Manyoni Police Station as the place for the
recording pf the extra-judicial confessions as opposed to the Primary Court
of Manyoni District at Manyoni (town) which is within the vicinity of Manyoni
Police Station.

On the contrary, no objection was made at the admissions stage. As already

stated, the first accused herein did not object when his caution statement
was tendered for admission. Thus, it was admitted as Exhibit P4. Similarly,
no objection was taken when the extrajudicial confessions of the second,

Page 11 of 21
 third and fourth accused persons were produced for admission. Hence, they
were admitted as Exhibits Pl, P2 and P3, respectively. The objections were
belatedly raised during cross-examination and defence. Hence, procedurally
wrong and tantamount to afterthoughts.

Turning to the second essential element of confession, as stated above, the

law is settled that for a confession to attract weight and to be acted upon, it
must comply with the provision of section 3 of the Evidence Act. Section 3
(!)■ (c) states that a confession must contain an admission of all‘the
ingredients of the offence with which its maker is charged. Thus, before
•i apportioning any weight to a confession the court must critically assess it in
the* light of this provision and the unique circumstances of the particular
case. This requirement was underscored in Joseph Mkumbwa &
‘-Arimother vs Republic (Criminal Appeal 94 of 2007) [2011] TZCA 118
TanzLII where the Court of Appeal stated that:-
"We think that, that presumption does not go with the
weight to be attached to every such evidence.
Admissibility of the evidence is one thing; its weight or
probative value is another. In evaluating the weight to be
attached to an alleged confession, a trial court has the
duty to look at all the surrounding circumstances. It also
has to see whether the law has been complied with in
extracting the statement. Thus, in STEPHEN JASON &
OTHERS V R. Criminal Appeal No. 79 of 1999
(unreported) this Court warned:

"Where an accused claims that he was tortured

and is backed by visible marks of injuries it is

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 incumbent upon the trial court to be more
cautious in the evaluation and consideration of the
cautioned statement, even if its admissibility had
not been objected to; and such cautioned
statement should be given little if not, nd weight
at all"

This position was cemented further in Nyerere Nyague vs Republic

(supra) when the Court once again stated thus:-
"even if a confession is found to be voluntary and admitted, the
trial court is still saddled with the duty of evaluating the weight
to be attached to such evidence given the circumstances of each
case (See TUWAMOI v UGANDA (1967) E.A 91 STEPHEN JASON
& OTHERS v R (supra)

Thus guided, I have critically scrutinized each of the confessions to ascertain

whether or not they attract weight and can be acted upon. My observation
is as follows. Starting with the first accused's confession (Exhibit P4), unlike
the rest of the confessions, this is fairly detailed. It gives an intense narration
of how the offence was committed and the role of each of the first four
accused persons. It also contains a narration about the first accused's life,
his family, and educational background as appears on the second page of
the caution statement. As the narration about his family and educational
ground, were confirmed by him in his cross-examination while testifying as
DW1, there can be no doubt that the narration as to the accused's family
and educational background, came from the first accused himself or a person
who is very familiar to him.

Page 13 of 21
This notwithstanding, the caution statement bears different signatures, the
authenticity of which needs to be determined by this court. Further to the
issue of torture, the first accused person pointed to the disparity in the
signatures contained in the 9 pages of his caution statement. Renouncing
the content of his caution statement in the course of his defence and in
PW4's cross-examination, the first accused person drew the attention of this
court to- his purported signatures as appearing on all nine pages. He
renounced all the signatures save for the one appearing on the first page, a
page/that contains his profile and the caution paragraph. He asserted that
after PW4 had asked him his name and profile, he started recording the
statement and.after he had finished, he forced him to sign whereby he only
signed the first page. When these disparities were brought to the attention

of PW4 during cross-examination he conceded that much as the signature

was signed in his presence by the first accused person, they sharply contrast.
He stated that:
"The.signatures in the 1st and 2nd page of the statement are
dissimilar. The signature on the 4th page resembles the one on
1st page but the ones on the 1st and 2nd page are dissimilar. The
signatures on the 1st page and 9th page are dissimilar. It is true
that the signatures in the statements are different."

Section 69 of the Evidence Act deals with disparities in signatures and

provides that:
69. If a document is alleged to be signed or to have been
written wholly or in part by any person, the signature or the
...., .handwriting of so much of .the document as is alleged to be . in

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 that person's handwriting must be proved to be in his
handwriting.

Principally, such proof would come from the person in whose presence the
document was signed or in the absence of such person, a handwriting expert
or a person who is familiar with the handwriting of the author. In the absence
of these, the court may do. a comparison of the writings by invoking its
powers under section 75 of the Evidence Act. Dealing with a similar situation
in Ahmed Freight Limited & Another vs ECOBANK Tanzania Limited
(Civil Appeal No. 182 of 2020) [2024] TZCA172 TanzLII, the Court of Appeal
stated thus:-
Generally, handwriting or signature may be proved on
admission by the writer or by evidence of a witness or witnesses
in whose presence the document was written or signed.
Moreover, the disputed handwriting or signature may .be.proyed
by opinion of the handwriting expert, evidence of persons who
are familiar with the writing of a person who is said to have
written a particular writing as provided under sections 47 and
49 The decision of the Court in the DPP v. Shida Manyama
@ Seleman Mabuba (Criminal Appeal No.285 of 2012) [2013]
TZCA 168 (25 September 2013, TANZLII) is relevant for this
stance. In that decision, the Court made reference to the
decision of the Supreme Court of India in Fakhruddin v. State
of Nadhya Pradesh, AIR 1967 SC 1326 where it was stated
that:
"In either case the court must satisfy itselfby such
means as are open that the opinion may be acted
upon. One such means open to the court is to
apply its own observation to the admitted or
proved writings and to compare them with the

Page 15 of 21
 disputed one, not to become a handwriting expert
but to verify the premises of the expert in die one
case and to appraise the value of the opinion in
other case,.."

Going by this rule, the first evidence would come from PW4 who was the
only person present when the first accused person was signing the caution
statement. Guided by the cardinal principle that, every witness is entitled to
credence and should be believed (see Kyando Vs. R, [2006] TLR 363,
Frank Richard Shayo vs R (Criminal Appeal No. 333 of 2020) [2024] TZCA
230 TanzLII), I would hastily believe PW4. However, since the disparity is
appalling and PW4 has conceded that although the signatures were of the
same person, they are different, it was incumbent to have a handwriting
expert to unmask the quagmire. As there was none, I am of the considered
view that, the disparity should be resolved in the favour of the first accused
considering that, unlike the prosecution, he had no duty to prove the
authenticity of the signatures or the substance of the caution statement.
Accordingly, this confession is discounted.

The finding above naturally dissolves the charges against Mussa Hassan
Kulabata, the fifth accused person herein, because, other than the
discounted confession of the first accused, there is no other evidence
implicating him.

Turning to Exhibit P2 which is the extra-judicial confession of the 3rd accused

person, I have observed that, although its maker confessed to have killed

Page 16 of 21
Bubuand to have executed the murder jointly with Abas, Vicent and Juma,
the date of the murder to which he confessed sharply contrasts with the one
in the present case. His confession is in respect of a murder incident
committed on 2/10/2021 about a month before the incident herein which as
per the information, was committed on 1/11/2021. The law is settled that
the date of the incident appearing on the charge sheet should align with the
date in the evidence. In other words, when proving its case, the prosecution
must lead evidence showing that the offence was committed on the date
alleged in the charge sheet and riot otherwise. A variance or uncertainty if
any, must be cured through an amendment of the chargesheet at any time
before the judgment else the charge will remain unproved and the accused
shall be entitled to an acquittal (see the case of Joseph Sypriano v R
Criminal Appeal No. 158 of 2011 (unreported), Said Msusa vs Republic,
Criminal Appeal No. 268 of 2013 (unreported) and Abel Masikiti vs.
Republic, Criminal Appeal No. 24 of 2015 (unreported). Since no such
amendment was done and the rest of the evidence on record suggests that
the offence was committed on 1/11/2021, Exhibit P2 is discounted. Further
and unless there is another independent evidence implicating the third
accused person, he shall be entitled to acquittal.

Next is the second accused person's extrajudicial statement (Exhibit Pl).

Unlike the first and the second confession statements, this confession
appears to be too abstract. Although its maker confessed to have committed
murder in collaboration with Abas, Adam, and Tumaini and narrated how
they executed the murder under the superintendence of Abas, it is silent on

Page 17 of 21
: the essential facts such as thename or description of the deceased, the date
of the incident and its location. Hence, a missing link between it and the
instant case. Accordingly, it cannot be independently acted upon in the
absence of a corroboration establishing the missing link between it and the
. case at hand.

Lastly, is the extra-judicial confession of the fourth accused person (Exhibit

P3). The maker Of this confession implicated himself and two other persons
who are Abas and Tuma. He confessed to have formed a common intention
with Abas and Tuma to kill Bubu so as to obtain private hair and blood. As
per this confession, Abas was the one who killed the deceased by assaulting
himi'With an-iron bar. After he had killed him, he collected his blood and
private hair and when he finished, he (the fourth accused person) and Tuma
assisted him to hide the deceased's body in a bush. Looking at these names,
I have observed that, the name of Abas coincides with the name of the first
accused person whereas the name of Tuma does not coincide with any of
the five accused persons. Hence, a missing link between it and the present
case. Lunderstand that there is a slight correlation between this name and
the first name of the third accused in that, the name Tuma constitutes the
first four letters of the first name of the third accused person, Tumani.
However, this alone does not render the two names similar as in law these
- are distinct-and unless there is evidence to the contrary, they should be
treated as such. As ho such evidence was rendered, no court would treat
them as the same as that would amount to conjecture and speculation which
•</ I''*'* - ’I ul ■ ,* r “ 'If. ' ’I1.’"

have no place in the dispensation of justice. Impliedly, therefore, and in as

Page 18 of 21
far .as this case is concerned, the confession only implicates its maker and
the first accused person.

This being the only remaining evidence available, I have asked myself
whether it suffices to ground a conviction against these two accused
persons. I will start with the first accused person. In respect of this accused
person, the confession at hand is that of the co-accused person which cannot
be acted upon in the absence of corroboration, cannot be acted upon in the
absence of corroboration meaning that, for it to be acted upon it must be
supported by independent evidence implicating the first accused person.
Accentuating the requirement for corroboration, the Court of Appeal in the
case of Ndalahwa Shilanga & Another vs Republic (Criminal Appeal 247
of 2008) [201 i] TZCA 159 TanzLII, held that:

It- is true that Section 33 (1) allows a court to take into

consideration the evidence of a co accused against another, but
Section 33(2) of the same Act, prohibits a conviction to be based
solely on such confession, This provision appears to have
escaped the mind of the learned trial judge. So, corroboration
of a confession from a co- accused, is not just a matter of
practice but a matter of law. This provision was enacted by an
amendment to the Evidence Act by Act No. 19 of 1980, and thus
overriding all case law, that had originally demanded such
corroboration only as a matter of practice. Henceforth, a
conviction of an accused person cannot rest solely on the
confession of a co-accused. (Also see Thadeo Mlomo and
Others vs. R (1995) TLR. 187 and Flano Alphonce Masalu
@ Singu vs R (Criminal Appeal 366 of 2018) [2020] TZCA 197).

Page 19 of 21
In the present case, having discounted the confession of the first, second,
and third accused persons, the confession of the 4th accused person has
remained with no corroboration. On the strength of the authority above, the
confession of the 4th accused person cannot be acted upon as against the
first accused person for want of corroboration. Accordingly, the case against
the first accused person is not proved.

As for the fourth accused person, much as one's own confession suffices to
ground a conviction, I am of the firm view that, in the circumstances of the
present case it would be unsafe to ground a conviction based solely on the
confession due regard being to the following facts: one, the fact that, the
fourth accused person's confession was to the effect that his participation
was limited to planning and assisting the 1st accused in hiding the deceased's
body. Two, his complaints of torture albeit raised belatedly, when considered
alongside the large scars on his legs and Exhibit D2, which shows that he
was taken to hospital for treatment on 11/11/2021. These are all alarming
and leave a doubtful impression of the treatment he received while under
custody and the circumstances under which the confession was obtained. In
her testimony, PW3 who recorded the confession stated that, when the
fourth accused was brought before her. he was in good health and physically
ok with no scars on his body. This is doubtful, as the scars on the fourth
accused's legs,, whatever their cause, are too large such that they cannot be
unnoticed.

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The Court of Appeal in Stephen Jason and Others vs Republic, Criminal
Appeal No. 70 of 2012 (unreported) stated that:
"Where an accused claims that he was tortured and is backed by visible
marks of injuries it is incumbent upon the trial court to be more cautious
in the evaluation and consideration of the cautioned statement even if
its admissibility had not been objected to, and such cautioned statement
should be given little if no weight at air."

In the foregoing, I am hesitant to rely solely on the confession. That said

and done, it is patently clear that the prosecution has failed to prove their
case to the required standards. Accordingly, all the five accused persons are
found not guilty and are hereby acquitted of the charge of murder.

The judgment delivered remotely through virtual court this 31st day of May
2024 in the presence of Messrs. Nehemia Kilimuhana, Hussein Mkeni and
Godfrey Isack Songoro, learned State Attorney for the Republic, Messrs.
Cosmas Luambano, Peter Ndimbo, Hemedi Kulungu, Jackson Mayeka, and
David Rutayuga, learned counsels for the first, second, third, fourth, and fifth
accused persons, respectively and in the presence of all the accused persons.
The right of appeal is fully explained.

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