IN THE HIGH COURT OF TANZANIA

AT IRINGA
ORIGINAL JURISDICTION
(Iringa Registry)

CRIMINAL SESSION CASE NO. 45 OF 2013

THE REPUBLIC
VERSUS
G 2573 PC PACIFICUS S/O CLEOPHANCE SIMON

JUDGMENT
KIHWELO, J.
DAUDI MWANGOSI (henceforth the victim) was brutally
killed on 2nd September 2012 at Nyololo Village in Mufindi District
Iringa Region. His killing send a shock wave that led to an impromptu
criminal investigation which ultimately saw G2573 PACIFICUS S/O
CLEOPHANCE SIMON (henceforth the accused) arraigned in court
Page 1 of 48

for the charge of murder of the above-mentioned victim, contrary to

section 196 of the Penal Code, Cap 16 Revised Edition 2002
(henceforth the Penal Code) which to date he stands trial.

It was alleged that the accused who is a member of the riot

police from Field Force Unit (henceforth- FFU) Iringa on 2nd
September 2012 at Nyololo Village, Mufindi District, Iringa Region
during the operation to restrain Chama Cha Demokrasia na
Maendeleo known by its acronym as CHADEMA from conducting
public rally aimed at opening new branches, unlawfully killed with
malice aforethought the victim who was working with Channel Ten
Television as News Reporter. The incidence is said to have occurred
while police were restraining zealous CHADEMA supporters and their
leaders from holding a public rally during the time which political
parties were restrained from conducting public meetings and rallies in
order to allow the National Population and Housing Census which was
extended for one more week by then. The accused person pleaded
not guilty to the charge, but at the preliminary hearing, it was not
disputed that the victim met unnatural death.

Page 2 of 48

At the closure of the prosecution case, the court found that the
accused has a case to answer and was called upon to defend which
he dully complied by giving evidence himself and under oath. The trial
commenced on 12th February 2015 with the aid of assessors and was
adjourned on 16th February 2015 for more than a year until 20th June
2016 and it was completed on 27th June 2016, when the assessors
gave their opinions.

The Republic prosecution was dully represented by Mr.

Sunday Hyera, learned Principal State Attorney as lead Counsel who
was assisted by Mr. Ladislaus Komanya learned Senior State Attorney
while the accused was under the services of Mr. Rwezaula Kaijage
learned Counsel. I wish at this point to express my profound
appreciation to all Counsel for their industry, commitment and
concerted efforts throughout the conduct of this case.

Let me first address my mind to the predominant legal principles

which I think, are of relevancy to the case and will guide me in this
judgment and to which I have also directed the Gentleman and
Ladies Assessors attention. These cover aspects of criminal law as
Page 3 of 48

well as the law of evidence and they are borne out of the Constitution
of the United Republic of Tanzania, the Law of Evidence Act, Cap 6
Revised Edition 2002 (henceforth the Evidence Act), Criminal
Procedure Act, Cap 20 Revised 2002 (henceforth the CPA), the
Penal Code and precedents. These principles are meant to ensure
that no innocent person is convicted on freak or flimsy evidence.
Since the prosecution is the whole Republic with resources and all the
institutions at its disposal while the accused is just one person it is
incumbent that in the scales of criminal justice, the prosecution is
placed with a heavy burden than that of the accused. These principles
are recapitulated herein below. The first principle is that the onus of
proof in criminal cases, that the accused committed the offence for
which he is charged with, is always on the shoulders of the
prosecution and not on the accused person. This is a long established
principle in criminal justice and has no much difference with what is
reflected under Section 110 of the Evidence Act. The only difference
is that section 110 of the Evidence Act is very general in that it
applies to both criminal and civil cases. Section 110 of the Evidence
Act provides;

Page 4 of 48

110.- (1)

Whoever

desires

any

court

to

give

judgment as to any legal right or liability dependent

on the existence of facts which he asserts must prove
that those facts exists.
(2) When a person is bound to prove the
existence of any fact, it is said that the burden of
proof lies on that person.
Moreover, section 112 of the Evidence Act provides about the
burden of proof of a particular fact;

112. The burden of proof as to any particular fact lies on that

person who wishes the court to believe in its existence,
unless it is provided by law that the proof of that fact shall
lie on any other person.

The burden cast upon the prosecution to prove that the accused
before the court committed the crime was clearly well stated in the
case of Joseph John Makune Vs The Republic [1986] TLR 44 at
page 49, in which the Court of Appeal considered the prosecution
evidence adduced in the particular case and held that;
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The cardinal principle of our criminal law is that the

burden is on the prosecution to prove its case; no duty is cast
on the accused to prove his innocence. There are a few well
known exceptions to this principle, one example being where
the accused raises the defence of insanity in which case he must
prove it on the balance of probabilities..

The second principle is that the standard of proof in criminal

cases that is required by law is proof beyond reasonable doubt. The
Court of Appeal of Tanzania in the case of Mohamed Haruna@
Mtupeni & Another Vs The Republic, Criminal Appeal No. 25 of
2007 (unreported) held that;

Of course in cases of this nature the burden of proof is always

on the prosecution. The standard has always been proof beyond
reasonable doubt. It is trite law that an accused person can only
be convicted on the strength of the prosecution case and not on
the basis of the weakness of his defence.

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That means the evidence must be so convincing that no

reasonable person would ever question the accuseds guilt. See the
cases of Joseph John Makune Vs The Republic (supra),
Mohamed Said Matula Vs Republic [1995] TLR 3, Anatory
Mutafungwa Vs Republic, Criminal Appeal No. 267 of 2010, Court
of Appeal of Tanzania and Festo Komba Vs Republic, Criminal
Appeal No.77 of 2015, Court of Appeal of Tanzania (both unreported).

The

other

principle

equally

worthy

of

consideration

is

recapitulated under section 28 of the Evidence Act that reads;

28. A confession which is freely and voluntarily made by a

person accused of an offence in the immediate presence of a
magistrate as defined in the Magistrates Court Act, or a justice
of the peace under that Act, may be proved as against that
person.

According to a Commentary by Sarkar on Evidence 15th

Edition at page 414 and 415, in order to render a confession
admissible, it must be perfectly voluntary. Before a confession
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statement can be acted upon, it must be shown to be voluntary and

free from any influence. If the confession is true, but the court doubts
its voluntariness, it must be excluded. Even if the confession is held to
be voluntary, it must also be established that it is true and for this
purpose it would be necessary to examine the confession and
compare it with the rest of the prosecution evidence and the
probabilities of the case. It must be emphasized that even if a
confession was made before a person with authority, it does not
render it involuntary or inadmissible; it must be further shown that it
was caused by any inducement, threat or promise.

It is elementary that in our criminal justice system as elsewhere

for one to be convicted of murder it does not only suffice to prove
that he killed but rather it has to be proved that he killed with the
requisite malice aforethought and the onus never shifts away from
prosecution and no duty is cast upon the accused to establish his
innocence. This is another principle worth of consideration.

Section 200 of the Penal Code provides that malice aforethought

shall be deemed to be established by evidence proving any one or
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more of the circumstances mentioned under (a) (d) thereto. The

circumstances are;

a) an intention to cause the death of or to do grievous harm to

any person, whether that person is the person actually killed
or not;
b) knowledge that the act or omission causing death will
probably cause the death of or grievous harm to some
person, whether that person is the person actually killed or
not, although that knowledge is accompanied by indifference
whether death or grievous bodily harm is caused or not, or by
a wish that it may not be caused;
c) an intent to commit an offence punishable with a penalty
which is graver than imprisonment for three years;
d) an intention by the act or omission to facilitate the flight or
escape from custody of any person who has committed or
attempted to commit an offence.

Page 9 of 48

Blacks Law Dictionary defines malice aforethought as,

A predetermination to commit an act without legal justification

or excuse..An intent, at the time of killing, willfully to take
the life of a human being, or an intent willfully to act in callous
and wanton disregard of the consequences to human life; but
malice aforethought does not necessarily imply any ill will,
spite or hatred towards the individual killed.

It is with those principles in mind that I will now turn to

summarise the evidence for the prosecution and the defence before
applying those principles to facts.

The prosecution case consists of 4 witnesses and 5 exhibits and

1 exhibit for identification only. The witnesses were SP SAID
ABDALLAH MNUNKA (PW1), ANSELIM PETER MWAMPAMBA
(PW2), FLORA MHELELA (PW3) and G 3121 PC LEWIS
OBADIA TEIKYA (PW4). The tendered Exhibits included Exhibit
P1 (Sketch Map of the Crime Scene), Exhibit P2 (Report on PostMortem Examination), Exhibit P3 (Extra Judicial Statement), Exhibit
P4(Long Range Anti- Riot Gun No. 040824 and Exhibit P5(Armoury
Page 10 of 48

Register). I wish to point out that Exhibit P1 and Exhibit P2 were

admitted without any objection during the preliminary hearing stage
of the case.

SP SAID ABDALLAH MNUNKA (PW1) testified before the

Court that by then he was the Officer in Charge of Field Force Unit
(OC-FFU) Iringa and that on 1st September 2012 he was directed by
the then Regional Police Commander (RPC) one SACP. MICHAEL
KAMUHANDA to prepare one section of riot police officers from FFU
Iringa who were required to go to Nyololo Village in Mufindi District
on 2nd September 2012 for a special operation to stop CHADEMA from
conducting a public rally. It was his testimony that during that time all
political parties were restrained by the government from conducting
any public meetings in order to allow smooth carrying over of the
National Population and Housing Census exercise which by then was
extended for one more week. He testified that CHADEMA did not
heed to the government ban and instead insistently proceeded with
the preparations for the public meeting. According to PW1 the
accused was one among ten (10) riot police officers who were in that
section, others were CPL KITUNDU, PC MOHAMED, PC FRANK,
Page 11 of 48

PC LEWIS, PC FAUSTINE, PC MAJID, PC JOSEPH, PC

MASHEMU and PC RAMADHAN. The accused was carrying a Long
Range Anti-Riot Gun that was also given to PC MAJID and PC
RAMADHAN. According to this witness there were other two
sections from FFU Dodoma led by ASP ALLY and one section from
Mafinga Police Station led by Officer in Command of the Station
(henceforth OCS) ANSELIM PETER MWAMPAMBA. He said that
while at Nyololo Village a pitched battle between zealous CHADEMA
followers and the riot police officers ensued that compelled the police
to use tear gas in order to disperse them and after the operation was
over PW1 ordered all the riot police officers to get back in their
vehicles. PW1 went on to explain further that while leaving the area
of the operation they saw police officers getting out of their vehicles
and running towards a group of people who were assembled in a
circle like shape and that the RPC sent his bodyguard PC TUMAINI
to tell police officers that they should leave alone the person who was
surrounded because he was a known journalist and hardly had PC
TUMAINI arrived at the scene where police officers had surrounded
that a loud explosion occurred where people were in a circle like
shape and according to PW1 from the sound of the explosion he
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knew for sure that it was a sound of a Long Range Anti-Riot Gun and
when PW1 walked to the scene along with the RPC SACP MICHAEL
KAMUHANDA they were stunned to find the body of the victim who
was fatally wounded with open stomach while the intestines were
discharged out. Other police officers around the scene were injured
too and that included ANSELIM PETER MWAMPAMBA who was
then taken to Mafinga Hospital for treatment along with the corpse.
The Regional Crime Officer (henceforth the RCO) NYEGESI
WANKYO immediately launched the investigation. PW1 further
testified that he came to know who caused the death of the victim on
3rd September 2012 when he identified the accused through a
Mwananchi Newspaper of 3rd September 2012 which was admitted as
Exhibit ID1 and that according to him the accused was wrongly
holding the Long Range Anti-Riot Gun which was aiming at the victim
contrary to the police instructions which required him to hold at the
range of 40 to 45 degrees upward. PW1 said that the accused fired
without instructions from his superiors.

Upon cross-examination PW1 insisted that the accused killed the

victim but admittedly he said that he only identified the accused
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through Exhibit ID1 and upon further cross-examination he

testified that he did not know who fired the Long Range Anti-Riot Gun
at the scene. He said that at that area where the explosion occurred
there were police officers from Mafinga Police Station, Iringa FFU and
Dodoma FFU.

The next witness was ANSELIM PETER MWAMPAMBA

(PW2) who testified that he was the OCS at Mafinga Police Station
and was instructed by the Officer in Charge of the District (henceforth
OCD) to prepare one section so as to go to Nyololo Village in
Mufindi District to stop the planned CHADEMA public meeting that
was banned owing to the extension of the National Population and
Housing Census exercise and that upon arrival at Nyololo Village
initially they went around the streets warning people through public
announcements not to attend the meeting which was unlawful. He
said that at around 14:00 hours the RPC and RCO arrived and had
briefing with journalists whereby the RPC told them that the planned
meeting was unlawful as such people should disperse. However,
CHADEMA leaders and their zealous followers were defiant of the
order as they temporary dispersed and gathered somewhere else
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where they had planned to open a new partys branch as a result the
riot police officers were compelled to give the formal warning by
raising the red flag of the usual no riot warning sign but there
followed some haggling between the police and CHADEMA leaders
and their zealous followers who started throwing stones at the police
whereby riot police were compelled to disperse them using tear gas.
PW2 further testified that when the situation was calm and while he
was walking towards his car he was suddenly grabbed from the back
by the victim and was about to fall down when he cried for rescue
and as the police who came for his rescue were arriving and within a
fraction of a minute he heard a very loud explosion and fell
unconscious until the next day when he wake up at hospital in
Mafinga and it came to his attention that the journalist who grabbed
him the previous day (the victim) died of the explosion. PW2
admittedly testified that he was just told that a riot police officer from
Iringa, the accused is the one who caused the death of the victim and
also injured him and other police officers that were at the scene of
the crime.

Page 15 of 48

Upon cross-examination PW2 testified that the OC-FFU was the

one who was giving orders throughout the period they were at
Nyololo Village and that the order to get back in the vehicles was
disobeyed. He explained that the order was given at one location
while the vehicles were packed at another location some distance
from where the order was given. He testified that all police officers
were in combat while at Nyololo Village and that those from Iringa
FFU and Dodoma FFU were in jungle green. He admittedly testified
that he did not know who fired the Long Range Ant-Riot Gun at the
scene of the crime.

The testimony of FLORA MHELELA (PW3) was to the effect

that she recorded the Extra Judicial Statement (Exhibit P3) of the
accused after he was sent to her by one police officer and that she
followed all the procedures of taking down the Extra Judicial
Statement in particular the Magistrates Court Act, Cap 11 Revised
Edition 2002 (henceforth MCA) and the Chief Justices Circular to
Justice of Peace and that the accused gave all the account of what
transpired freely and voluntarily without any compulsion and that the
accused confessed to have caused the death of the victim but said
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that he did not intend to kill the deceased. PW3 then tendered
Exhibit P3 which was admitted without any objection.

Upon cross-examination PW3 told this court that the accused

was earlier on summoned to the RPCs Office prior to being taken to
her but she did not know what was discussed with the RPC as that
was not her business.

PW4 G 3121 PC LEWIS OBADIA TEIKYA testified that way

back in September 2012 he was the Assistant Armoury Officer at FFU
Iringa and was responsible for keeping the armoury, issuing as well
as receiving police gears to and from all riot police officers including
but not limited to those who went to Nyololo Village for the operation
on 2nd September 2012.

The witness went on tell how he issued police gears to riot

police officers who went to Nyololo Village on 2nd September 2012
and who was given which type of police gear from Sub-Machine Gun
(SGM), Smoke Pistol, Long Range Ant-Riot Gun and Revolver Pistol.
PW4 testified that he himself fully participated in the operation at
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Nyololo Village and used all tear gas canisters he had. He testified
that he issued Long Range Anti-Riot Gun No. 040824 to the accused
that was tendered as Exhibit P4 without any objection. PW4 also
tendered the Armoury Register that indicated which police officer was
issued which police gear. The Armoury Register was tendered and
admitted as Exhibit P5 without objection. According to PW4 all the
22 tear gas were used and none of the riot police officers returned a
single tear gas including himself who had taken Revolver Pistol.
According to PW4 he could not know who fired which weapon and
that he did not see anything at the operation because the explosion
occurred at the direction he could not remember. PW4 admittedly
testified during cross-examination that accidental firing is possible and
is the problem of the gun and not the shooter. He also testified that
they were all dressed in jungle green and helmets.

Upon closing the prosecution case the court ruled out that the
accused had a case to answer having considered that a prima facie
case had been made by the prosecution taking into account the
evidence adduced by the prosecution witnesses and the exhibit
tendered and admitted in court.
Page 18 of 48

Let me now turn to the defence case.

The accused G 2573 PC PACIFICUS CLEOPHANCE SIMON

did not call any witness but elected to testify himself as the only
Defence witness (DW1). He testified under oath. His line of defence
was that he did not commit the offence he is charged with. DW1 said
that he was instructed by PW1 on 1st September 2012 that he should
get ready for the operation on the 2nd September 2012 at Nyololo
Village in Mufindi District and that on the fateful date he was
assembled at 7:30 hours along with nine (9) other riot police officers
whereupon they were supplied with police gears and he was
personally given a Long Range Anti- Riot Gun and left FFU Iringa to
Nyololo Village along with another two sections from FFU Dodoma
and that on their way they shortly stopped at Mafinga Township until
in the afternoon when they left one section from FFU Dodoma at
Mafinga to take care of piece and security, while the remaining
sections from FFU Dodoma and FFU Iringa along with the section
from Mafinga Police Station proceeded to Nyololo Village. According
to DW1 while at Nyololo they were later joined by the RPC and the
Page 19 of 48

RCO and that they went around the streets of Nyololo advising
citizens not to attend the gathering of launching CHADEMA branches
but CHADEMA leaders and their zealous followers were defiant of the
order and haggling ensued between the police and CHADEMA leaders
and their supporters which necessitated the riot police to fire tear gas
in order to disperse them and because CHADEMA zealous followers
were throwing stones at the riot police and that they arrested seven
(7) CHADEMA leaders.

DW1 went on to testify that when the situation came back to

normal all the riot police and other police officers were ordered to get
back in their vehicles and they obeyed the order. He testified that
they took the seven (7) CHADEMA leaders in their vehicle. He
however, testified that before getting back in their vehicles he
informed the OC FFU for Iringa that he had minor injuries as he
stepped into the hole during the operation but all the same being a
brave soldier he would tolerate (atajikaza kijeshi). He testified that
there were other three vehicles in the lane. The first car was from
FFU Dodoma which was clearing the way, then followed the RPCs car
which was second in the line and the third in the line was the car
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from FFU Iringa in which the accused was in and the last car was the
one from Mafinga Police Station in which the OCS from Mafinga
(PW2) was. According to DW1 as they were preparing to leave the
scene of the operation the accused heard a loud explosion which
occurred close to 80 to 100 meters from where their vehicle was
parked and by then PW1 was in that car sitting in the front. DW1
further explained that he did not leave the vehicle as he was looking
after the seven (7) suspects they arrested while other riot police and
other police officers ran towards where the explosion occurred and
surrounded the area where upon all the police vehicles reversed back
and the RCO NYEGESI WANKYO had to remain at Nyololo for
further investigation while the rest of the sections left. He however,
said that the section from FFU Dodoma remained at Nyololo Village to
take care of peace and security.

According to DW1 when they left Nyololo Village they stopped at

Mafinga Police Station as the RPC had to conduct briefing with the
leadership of Mufindi District Police and they left at 1:00 hours after
midnight and went straight to FFU Iringa where they returned police
gears and retired for a day. DW1 said it was on 3rd September 2012
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when he was interrogated at different occasions first by the OC FFU,

then Commander Siro the then Operation Commander, later the RPC
and other senior officers in Iringa Region and later by the then DCIManumba and other senior police officers from the Police Head
Quarters. At all times DW1 was interrogated about his resemblance
with the riot police officer who appeared in Exhibit ID1 and he
consistently maintained that he was not the one and was ultimately
sent to police lock up at around 3:30 hours.

DW1 testified that on 5th September 2012 he was sent to PW3

but prior to that he was taken to the office of the RPC and that while
being taken to PW3 he was not free at all. DW1 alleged that PW3 did
not ask him anything but rather she copied everything from a
document that was in an envelop which was given to her by the
police officer (SSGT ERIC) who took him to PW3 with instructions
that the envelop was from the RCO as PW3 and the RCO had earlier
on in a day agreed. DW1 said that PW3 did not read to him the
statement in Exhibit P3 instead she just requested him to sign and
because it was something from the RCO he signed without even
reading it. In essence DW1 recounted Exhibit P3 in that it was not
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voluntarily and freely taken and that he was taken to PW3 not as a
free agent. He further challenged the fact that the prosecution did not
tender the Armoury Register from Dodoma and added that all riot
police officers were in identical dressing namely jungle green, body
armour and helmets. He further challenged the prosecutions case in
that none of the prosecutions star witnesses who investigated the
case came to testify before the court. In particular he mentioned the
SACP

MICHAEL

KAMUHANDA,

the

then

RCO

NYEGESI

WANKYO and a Ballistic Expert who examined the explosives. DW1

upon cross-examination he admittedly testified that he did not call as
witnesses those police officers who saw him remain in the car during
the explosion at Nyololo because he did not know where to get them.
He also said that it was not possible for him to get hold of the former
DCI, RPC and RCO to testify for him. Upon further cross examination
DW1 admittedly testified that he knew PW3 tendered in court Exhibit
P3 but was unaware if the same was not objected since that was the
duty of his lawyer who represented him in court. He also testified that
he did not object to the admissibility of Exhibit P3 because he was
not allowed to talk since he was being represented in court. DW1
upon further cross examination he admitted to have participated in
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other police operations prior to the operations at Nyololo Village. He

also admitted having used the Long Range Anti- Riot Gun Exhibit
P4 during that operation.

Having scrutinized thoroughly the evidence of all witnesses as

well as the submissions made by the prosecution and that of the
defence I wish now to address the three issues that are contentious
and which I directed the Honourable Assessors to consider and was
the basis of their opinions.

It is not, in my opinion, insignificant to state as earlier on

mentioned that the fact that the victim is dead and died an unnatural
death is not in dispute as this was resolved when the matter came up
for the preliminary hearing.

The first issue is whether or not the accused killed the

deceased.

The prosecution produced 4 witnesses to prove this issue

whereas the accused testified himself under oath in defence. I
Page 24 of 48

enjoyed the advantage of observing the manner and demeanour of

witnesses when they were in the witness box.

PW1 in his testimony insisted that the accused killed the victim
but admittedly testified that he only identified the accused through
Exhibit ID1 which was admitted for mere identification. I should
remark briefly at this juncture that Exhibit ID1 was not admitted
because it did not comply with the requirement of the law in
particular section 202(1) of the CPA which requires any photographic
print or photographic enlargement to be made by an officer appointed
by the Attorney General in other words he should be someone
gazette and that its production in court must be done through a
prescribed Form obtained in the Third Schedule to the CPA.
Furthermore the prosecution did not produce the photographer to
testify despite the fact that during the production of Exhibit ID1
the prosecution submitted that the maker would be produced later in
court to testify but this did not happen hence rendering Exhibit
ID1 of no evidential value as it is not part of the evidence on
record. This is the position of the law in Tanzania as of now. See
Peter Masanja Makansi V R, Criminal Appeal No 327 of 2007,
Page 25 of 48

Court of Appeal of Tanzania at Mwanza (unreported). Upon further

cross-examination PW1 said that he did not know who fired the Long
Range Anti-Riot Gun at the scene. He further said that at the scene
where the explosion occurred there were other police officers from
Mafinga Police Station, Iringa FFU and Dodoma FFU.

From the look PW1 appears to be the key witness among all the
prosecutions witnesses who came forward to testify. If I may
respectfully say so, I think, it would be unsafe for me to believe the
evidence of PW1 in its totality. I am saying so bearing in mind that
obviously PW1 at some point appeared to be completely unreliable
witness. What fell from his own mouth portrayed him as unreliable
witness. For instance he testified that the then RPC MICHAEL
KAMUHANDA sent his bodyguard PC TUMAINI to tell police
officers who surrounded the area where later the explosion occurred
that they should leave alone the person who was surrounded because
he was a known journalist. However, it is inconceivable to imagine
how could PW1 hear this order while he was not in the same car with
the RPC and furthermore it is incomprehensible and beyond any
stretch of imagination to believe that the RPC could have easily seen
Page 26 of 48

and identified someone who was surrounded by a crowd of people

and police officers at a distance of about 80 to 100 meters and while
the RPC was in his car. As if this was not enough PW1 testified that
upon return from Mufindi they went straight to the RPCs office to
report (kupiga timamu) something that according to DW1 is also
impractical as the RPC was present in person during the operation
and ordinarily took over in giving orders upon arrival at Nyololo
Village as such there was nothing to report back as feedback because
the RPC was present himself at the operation and the briefing was
done at Mafinga.

Having this in mind I find it extremely unsafe to believe PW1.

The position of the law is very clear and settled as regards the
treatment of evidence of witnesses who are not reliable. In the case
of Emmanuel Abrahamu Nanyaro Vs Peniel Ole Saitabahu
[1987] TLR 47 the court religiously held that;

Unreliability of witnesses, conflicts, inconsistencies in their

evidence entitle a judge to reject evidence.

Page 27 of 48

Furthermore the prosecutions evidence in particular that of PW1

and PW2 is evidently clear that it is contradictory in some aspects.
Whereas PW1 testified that while at Nyololo Village the RPC was the
one giving orders, PW2 testified that throughout the period they were
at Nyololo Village the one who was giving orders was PW1. This is a
total contradiction. It has to be noted that the issue of orders at the
operation was central in the sense that PW1 testified that he did not
order police officers to fire tear gas at the operations. It has been
alleged and lucidly argued that where there is inconsistencies and
contradictions the court is duty bound to reasonably consider and
evaluate those inconsistencies and see whether they are minor or
major ones that goes to the root of the matter. While minor
discrepancies and contradictions do not jeopardize the credibility of
witnesses major discrepancies and contradictions do jeopardize the
credibility of witnesses considerably. There is an array of legal
authorities in Tanzania regarding this position and some of these
cases include Dickson Elia Nshamba Shapwata & Another Vs R,
Criminal Appeal No. 92 of 2007, George Ndumbaro Vs R, Criminal
Appeal No. 294 of 2009 and Ally Hussein Dugange Vs R, Criminal
Appeal No. 122 of 2013. PW1 and PW2 inconsistencies and
Page 28 of 48

contradictions are major and go to the root of the matter. Similarly

whereas PW2 said that the order to get back in the cars was given at
one place and the explosion occurred at another location, this was
not PW1s account of the events that occurred at the scene. We,
therefore, have two different versions to the same story. Needless to
say one of these two sides must be telling a lie, and a deliberate one
for reasons best known to themselves. The issue here is a purely
factual one, resting squarely on the question of credibility. This is
serious given the gravity of the offence.

On his part PW2 did not have much to offer except to testify
that while going back to where his car was parked ready for leaving
the area of the operation he was suddenly snatched from the back by
the victim until he was about to fall something which compelled him
to cry for rescue and as other police officers were arriving for his
rescue he suddenly heard a loud explosion and immediately lost
consciousness until the second day when he found himself at Mafinga
hospital. Upon cross-examination PW2 admittedly said that he did not
know who fired the weapon that caused the explosion. In brief PW2
only heard from other people that the accused is the one who killed
Page 29 of 48

the victim as such his evidence is mere hearsay and therefore should
not detain me much as it has no evidential value at all. This position
of the law is settled and clear in Tanzania and I need not cite any
authority for that.

PW4 on his part said that he was the Assistant Armoury Officer
who issued police gears to all police officers who went to Nyololo
Village for the operation and that all the tear gas including the ones
he took were used given the extent of the violence at Nyololo Village
and that no one returned any tear gas canister. According to PW4 he
could not know who fired which weapon and that he did not see
anything at the operation because the explosion occurred at the
direction he could not remember. PW4 admittedly testified during
cross-examination that accidental firing is possible and is the problem
of the gun and not the shooter.
I will now turn to examine the evidence of PW3 the Justice of
Peace who took down and tendered Exhibit P3. She said that on
5th September 2012 the accused was sent to her by the police for
taking the Extra Judicial Statement and outlined the procedure that
she followed before taking the Extra Judicial Statement and according
Page 30 of 48

to her the confession was taken voluntarily and freely. PW3 further
testified that the accused confessed to have caused the death of the
victim but said that he did not intend to kill the victim. According to
Exhibit P3 which was read over in court by PW3 the accused said
the following in part;

Nikiwa na askari wengine nilienda kutoa msaada, nikiwa

na Long range ambayo ni silaha inayotumika kupiga mabomu ya
kishindo na machozi kama inavyoonyesha katika gazeti la
Mwananchi la tarehe 3/09/2012. Pale katika eneo la tukio bila
kujua wala kufikiria kufyatua bomu likafunguka likamuua
mwandishi wa habari DAUDI MWANGOSI na kumjeruhi OCS
ambaye alikumbatiwa na marehemu, pia kuwajeruhi askari
wengine watatu waliokuwa karibu yangu, mimi na marehemu

However, in his defence DW1, as led by his counsel said that

what he did before PW3 was merely to sign what PW3 had copied
from the envelop brought by SSGT ERIC from the RCOs office and
that Exhibit P3 was not taken voluntarily and freely.

Page 31 of 48

I have carefully considered the submissions of the prosecution

and the defence counsel, and I am satisfied that the accused has not
offered reasonable explanations why the defence did not object the
admissibility of Exhibit P3 when it was tendered for admission by
PW3. The voluntariness of the Extra Judicial Statement was a crucial
matter that should have been objected to or at least cross-examined.
By failing to object to the admissibility of Exhibit P3, the accused is
now estopped from denying his statement at this stage. It was the
obligation of the defence counsel in duty to his client and to the
court, to indicate in cross-examination the theme of his clients
defence so as to give the prosecution an opportunity to deal with the
matter. (See Mohamed Katindi and Another Vs R [1986] TLR
134) as Phipson on Evidence 13th Edition at pages 804-805 cited in
Republic Vs ACP Abdallah Zombe and 12 others, Criminal
Sessions Case No. 26 of 2006 (unreported) would put:

The object of cross examination is twofold- to weaken,

qualify or destroy the case of the opponent; and to
establish the partys own case by means of his opponents
witnesses

Page 32 of 48

..As a rule a party should put to each of his opponents

witnesses in turn so much of his case as concerns that
particular witness of which he had a shareIf he asks
no question he will .......generally be taken to accept the
witness account.

By parity of reasoning this applies to failure to object to

admissibility of documents or cross-examine the witness while
tendering the exhibit in question and in this particular case Exhibit
P3.

I am aware that in criminal case, the best witness is an accused

who confesses his guilty provided that the confession is beyond
suspicion: See Twaha Ali and 5 Others Vs Republic, Criminal
Appeal No. 78 of 2004, Court of Appeal of Tanzania cited with
approval in Prosper Baltazar Kileo and Another Vs Republic,
Criminal Appeal No. 150 of 2011, Court of Appeal of Tanzania (both
of them unreported). To cross this threshold, the Court of Appeal of
Tanzania in Michael John @Mtei Vs Republic, Criminal Appeal No.
202 of 2012 (unreported) held thus;
Page 33 of 48

In a criminal trial, therefore, as far as alleged confessions are

concerned, the prosecution has a duty of proving that:(i) The accused, by his conduct, or words, made a statement,
and
(ii)

The statement or conduct amounting to a confession was

made freely and voluntarily.

That standard of proof, it must be pointed out, is that of proof
beyond reasonable doubt in both instances.

I am equally aware that, generally, it is dangerous to act upon a

repudiated or retracted confession unless it is corroborated in
material particulars, or unless the court after full consideration of the
circumstances is satisfied of its truth- See Bombo Tomola Vs R
[1980] TLR 254. However, in the instant case Exhibit P3 was not
retracted by the accused. It was only purportedly retracted. I am
saying so because when Exhibit P3 was tendered by PW3 during
the trial it was not objected to by the defence. This is clearly reflected
at page 38 of the typed proceedings of 16/02/2015. It was
consequently marked as an exhibit. Therefore, when the accused
attempted to retract it in his defence after the prosecution had closed
Page 34 of 48

its case, it was too late in a day. That was not an appropriate stage
for retracting it. The appropriate stage would have been during the
trial when the exhibit was tendered by PW3. The defence should
have objected its production whereby a trial within a trial would have
been conducted to determine its admissibility. Purporting to retract it
in the defence after the prosecution had closed their case is nothing
but an afterthought. It was properly admitted by the Court and does
not require corroboration to be acted upon. See- Said Ally Matola@
Chumila Vs Republic, Criminal Appeal No. 129 of 2005, Court of
Appeal of Tanzania at Tanga (unreported).

I hasten to say that I found PW3 quite satisfactory as she

appeared to be well versed with what she told the court. She was a
very straightforward witness who stood firm despite long crossexamination by Mr. Kaijage Rwezaula, learned counsel for the
accused. I think, on my part, that PW3 is a witness of truth as she
testified steadily and with a clean mind. I am of no doubt that a
person of PW3s IQ and stature was incapable of fabricating such a
story. I detected no cunning devices in her evidence and I am
satisfied that she was a credible and reliable witness.
Page 35 of 48

I therefore answer issue number one in the affirmative.

The second issue is whether or not the accused killed

the deceased with Malice afore thought.

The evidence of PW1 was quite clear that he did not know who
fired the weapon that is the Long Range Anti Riot Gun at the crime
scene nor did he know that the accused killed the victim and that he
only came to know through Exhibit ID1 which has no evidential
value as it was merely admitted for identification purposes as such did
not form part of the evidence on record (Peter Masanja Makansi
Vs R (supra)). On his part PW2 said that he did not know anything
because after the explosion occurred he fell unconscious until the
next day when he wake up at Mafinga hospital and that is when he
was told that the journalist who snatched him from the back the
previous day was dead and that a police officer from FFU Iringa was
the suspect. Similarly PW4 said that he issued police gears to police
officers who went to Nyololo Village for the operation but did not
know which weapon was used or not and that all police officers used
Page 36 of 48

all the tear gas. He further said in response to cross-examination by

the Honourable Assessors that he did not know who killed the victim
until after three days but did not say how did he come to know but I
presume it was after the accused was arrested and put on police lock
up. Obviously from the evidence of PW1, PW2 and PW4 there was no
any scintilla of evidence to support the prosecutions argument that
the accused killed the victim with malice aforethought. To say the
least their evidence is shacky and of prevaricating character.

Admittedly, the only evidence which directly incriminates the

accused

with

the

crime

in

question

and

in

particular

the

circumstances of death is the Extra Judicial Statement of the accused

(DW1) which was produced in court by PW3 and admitted as
Exhibit P3 and in record DW1 admittedly confesses to have killed
the victim but in his confession he testified that the killing was not
intentional. If I can tell his own story DW1 stated that;

Nikiwa na askari wengine nilienda kutoa msaada, nikiwa

na Long range ambayo ni silaha inayotumika kupiga mabomu ya
kishindo na machozi kama inavyoonyesha katika gazeti la
Page 37 of 48

Mwananchi la tarehe 3/09/2012. Pale katika eneo la tukio

bila kujua wala kufikiria kufyatua bomu likafunguka
likamuua mwandishi wa habari DAUDI MWANGOSI na
kumjeruhi OCS ambaye alikumbatiwa na marehemu, pia
kuwajeruhi askari wengine watatu waliokuwa karibu yangu,
mimi na marehemu (emphasis is supplied).

This is the only evidence on record that incriminates the

accused. Unfortunately the prosecution did not produce any other
witnesses to prove that the accused killed with malice aforethought
and not accidentally as the accused claims in his confession pale

katika eneo la tukio bila kujua wala kufikiria kufyatua bomu

likafunguka likamuua mwandishi wa habari DAUDI MWANGOSI.
The prosecution miserably failed even to produce a Ballistic expert
who would have proved that having inspected the Long Range AntRiot Gun there was no any possibility that the same was not faulty or
defective so as to cause accidental firing. In the contrary PW4 while
being cross-examined by the Honourable Assessors he admitted that
there is a possibility of a weapon being fault and that in case that
happens one cannot blame the operator of the weapon. It behoves
Page 38 of 48

me to confess that those lingering doubts in the prosecutions case

should be resolved in favour of the accused.

I may at this point remark in passing that I find it completely

inexplicable why the prosecution did not deem it fit and their duty to
call their star witnesses in particular the lead investigator or even the
RCO, PC TUMAINI who is alleged to have been sent by the then
RPC SACP MICHAEL KAMUHANDA (to the scene where the
explosion later occurred) to give evidence at the trial. This is because
the lead investigator and/or the RCO, appears to be the prime movers
of the events that resulted in the arrest and prosecution of the
accused. It is my view that a number of matters arising in this case
which are left to the imagination would have been clarified if key
witnesses who investigated this matter had been called to give
evidence. This has caused me some anxiety and considerably
exercised my mind. While I am aware that a thread runs in our law
that no particular number of witnesses shall in any case be required
for the proof of any fact pursuant to section 143 of the Evidence Act
and that in measuring the weight of evidence it is not the number of
witnesses that counts most but the quality of the evidence in other
Page 39 of 48

words evidence has to be weighed and not to be counted. See

Hemed Saidi Vs Mohamed Mbilu [1984] TLR 114. I am also
mindful of the mundane principle which was well articulated by the
Court of Appeal of Tanzania in the case of Azizi Abdallah Vs
Republic [1991] TLR 71 in which the Court religiously held that;

(iii) the general and well known rule is that the prosecutor is
under a prima facie duty to call those witnesses who, from their
connection with the transaction in question, are able to testify
on material facts. If such witnesses are within reach but are not
called without sufficient reason being shown, the court may
draw an inference adverse to the prosecution.

See also Festo Mawata Vs R, Criminal Appeal No. 299 of

2007, Court of Appeal of Tanzania (unreported).

Generally

speaking,

in

my

reading,

understanding,

and

appreciation of the prosecutions submissions before me, I am of the

view that it is an attempt to invite me to hold that the accused killed
with the requisite malice aforethought. With respect, for reasons
Page 40 of 48

stated above, I decline the invitation. The prosecution has miserably

failed to prove beyond any reasonable doubt that the accused killed
with malice aforethought. There is, not even a modicum of evidence
to suggest, let alone to show, that the accused killed with malice
aforethought. I am far from being persuaded that the circumstances
explained by the prosecution in relation to malice aforethought
irresistibly and inevitably points to the accuseds malice aforethought
at the time of killing the victim. The issue on whether the accused
intended to kill or even to cause grievous bodily harm to the victim so
as to amount to malice afore thought is part of the jig saw puzzle that
the prosecution could not provide answers leave alone sufficient
answers and thus it boils down to one conclusion that the prosecution
has not been able to prove murder beyond any reasonable doubt.

Be that as it may, I am decisively of the opinion that, in the

absence of evidence proving, or from which it could reasonably be
inferred,

that

the

accused

killed

with

the

requisite

malice

aforethought I find that the accused according to his own confession

committed a negligence of the highest degree that occasioned to the
death of the victim.
Page 41 of 48

I have no hesitation therefore to answer issue number two in

the negative.

The third issue is whether or not the accused is guilty or

not guilty of the charge against him.

As far as the third issue that is still outstanding is concerned, I

fully consider that the answer is not far to seek. Having been satisfied
that all matters are matters for the judge to answer in limine, I am
settled in my mind that the prosecution has not proved that the
accused killed with malice aforethought as such I hold that the
accused killed without malice aforethought as prescribed by law. In
the circumstances I find the offence of murder was not proved
beyond any reasonable doubt but since the first issue has been
proved in the affirmative the accused is guilt of Manslaughter contrary
to section 195 of the Penal Code. Pursuant to Section 300(2) of the
CPA the offence of Murder is reduced to Manslaughter (Republic Vs
Giliba Jarmo (1970) HCD 327). Consequently I hereby convict the
accused G 2573 PC PACIFICUS CLEOPHANCE SIMON for the
Page 42 of 48

offence of Manslaughter of DAUD MWANGOSI.

P. F. KIHWELO
JUDGE
25. 07. 2016

SENTENCE
The issue as to what is the appropriate sentence for the accused
having been convicted for Manslaughter contrary to section 195 of
the Penal Code has considerably exercised and taxed my mind. This is
largely because sentencing is not a mathematical process but rather a
judicial process that has to be done judiciously. Whereas the
prosecution has convincingly urged the court to sentence the accused
to life imprisonment by virtue of section 198 of the Penal Code, the
defence has urged the court to impose a more lenient sentence and
specifically the defence prayed for an order for conditional discharge
under the provisions of section 38 of the Penal Code.

Page 43 of 48

In order to arrive at the appropriate sentence, the Court is duty

bound to consider the nature and seriousness of the offence that the
accused has been found guilty with, personal circumstances of the
accused, the interest of the victims family as well as the society at
large while bearing in mind that we are courts of law and not courts
of public opinion as such public opinion should not sway the court
despite the fact that public opinion may be loud and persistent. The
Court is also duty bound to take into consideration the main purposes
of punishment; namely retribution, deterrence, prevention and
rehabilitation. All these must be given due consideration in the
sentencing process.

It is a long established principle of law that sentencing is about

achieving

the

right

balance

or

in

more

high-flown

terms

proportionality. The elements at play are the crime, the offender, the
interests of the society that at times are competing just as witnessed
in the instant case the rival arguments between the prosecution and
the defence as far as the appropriate sentence to be meted to the
accused is concerned. Invariably there are overlaps that lender the
process unscientific, even a proper exercise of the judicial function
Page 44 of 48

allows reasonable people to arrive at different conclusions. Finding an

appropriate sentence is a challenge as sentence is not a perfect
process but all in all there are established principles that guides a trial
court when it comes to sentencing.

Coming

to

mitigating

factors

and

aggravating

circumstances, the prosecution Republic stated that they dont have

any previous criminal record however, they prayed for a severe
sentence of life imprisonment. On the other hand the defence prayed
for lenience because the accused was still a young person hence an
active workforce for the nation, the accused committed the offence in
an operation which he himself did not opt to participate but rather
was ordered by his superiors, the accused has spent fours years in
remand custody before being brought to trial and the period of trial
combined, the accused is orphan who has one child as well as five
siblings all depending on him although I must point out at this
juncture that being dependent upon is not an excuse. See Alexander
Mpelemba Vs R [1990] TLR 2. Finally the accused is remorseful for
committing the crime.

Page 45 of 48

Although the prosecution has sought for life imprisonment but I

am of the considered opinion that life imprisonment which will lead to
the accused to be locked in prison for the rest of his life or any longer
jail term would not serve to rehabilitate the accused who is a young
person still in his mid 20s and therefore I believe that there are
circumstances entitling the accused to a consideration of a more
lenient treatment by the court as far as sentence is concerned. I have
considered the fact that the accused is a first offender with no record
of the troubled past and is not likely to reoffend. In any case nothing
will compensate the victims family from the great loss of their loved
one who in my view did not deserve to die the way he did. The
Postmortem Examination Report (Exhibit P2) is a clear testimony
of the brutal death the victim met. Although I am mindful of the fact
that the victims family and the society would love to see the accused
locked in prison albeit for sometimes as a punishment to him and
lesson to others.

On the other hand the defence has sought to invite this Court to
impose conditional discharge upon the accused the invitation that I
find unwelcoming because it is often suggested and widely believed
Page 46 of 48

that a sentence must fit the crime and guilt as well as the
circumstances of the offender. See Ramadhan Mwenda Vs
Republic [1989] TLR 3. In my view imposing conditional discharge in
the circumstances of this case will be defying logic and sense of
justice. If I attempt to do so will be inviting moral panic and as a
court we shall not only lose the confidence of the society we are
supposed to serve but also our own legitimacy. All in all every case
must be decided according to its own merits.

Its a mundane truth that no one has a licence to kill and killing
is always a very serious crime. The fact that the accused did not
intend to kill does not make it less serious in fact Manslaughter is a
very

serious

offence

whose

maximum

punishment

is

life

imprisonment. I must also point out in passing that although every

case must be decided according to its own merits but in this particular
case I need to impose punishment which will deter others from acting
negligently the way the accused did in wanton disregard of danger to
human life.

Page 47 of 48

Considering all the factors above cumulatively and the ordeal

that the accused has gone through in the past fours years of his
being in custody I hereby sentence the accused to imprisonment term
of fifteen (15) years which I believe will serve justice in this case.

Order accordingly.

P. F. KIHWELO
JUDGE
27. 07. 2016

Page 48 of 48