Jumanne Alex Mtaturu vs Republic (Criminal Appeal No. 5875489 of 2025) [2026] TZCA 319 (18 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: GALEBA. 3.A., MASOUP. 3.A. And FELESHI, 3.A.) CRIMINAL APPEAL NO. 5875489 OF 2025 3UMANNE ALEX MTATURU................................................................. APPELLANT VERSUS REPUBLIC........... ........................ .................................. .......... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Singida) fMasabo, 3.) dated the 30th day of November, 2023 in Criminal Sessions Case No. 97 of 2022 JUDGMENT OF THE COURT 18th February & 18th March, 2026 FELESHI. J.A.: In this appeal, Jumanne Alex Mtaturu, the appellant, was convicted and sentenced to death by hanging by the High Court of Tanzania sitting at Singida (the trial court). He had been charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Chapter 16. The particulars of the offence were that, on 2n d April, 2021, at Manga Village, Mtipa Ward, Mungumaji Division, within Singida i District and Region, he murdered one Ramadhan Mohamed Kasimu, who was, incidentally, his maternal uncle. He pleaded not guilty. We are mindful that the evidence culminating in the appellant's conviction was exhaustively summarized by the learned trial court at pages 109 through 112 of the record of appeal. However, since the appellant on appeal ultimately argued only grounds one, two and seven out of the seven grounds of appeal and abandoned the rest, we find it necessary to restate the salient evidential material relevant to the determination of those grounds. The three grounds are: first, that, the prosecution failed to discharge its burden of proving the case against the appellant beyond reasonable doubt; second, that, the learned trial court erred in law and fact in convicting the appellant on circumstantial evidence which, according to the appellant, was fraught with discrepancies and improbabilities; and three, that, the trial court failed to properly consider and evaluate the appellant's defence before arriving at the conviction. During trial, the evidence of Jumanne Salum Msaghaa, Manga Village Chairman (PW3); Omary Hamis China, Mfumbu Hamlet Chairman (PW4) and Ramadhan Hassan Nkungu, the deceased's nephew (PW5), was essentially that, they participated in the search for the deceased and in the recovery of his body from the pond where it had been dumped. They testified that, upon recovery, they observed visible injuries and bruises on the body, particularly on the left hand, a finger, and one ear. They further stated that, the appellant was the deceased's daily caretaker and that, their respective residences were situated within the same compound, in close proximity to one another. Additionally, PW5 testified that the appellant informed him that on Friday, 2n d April 2021, he went to the deceased's home at about 21:00 hours, left thereafter, and returned at around 1:00 a.m., where they conversed for approximately one hour until 2:00 a.m., when he went back to his own home. PW5 further stated that, when the appellant returned to the deceased's residence at about 5:00 a.m. on 3rd April, 2021, he did not find him there. Similarly, PW4 gave evidence to the effect that, the appellant told him that on Friday, 2n d April, 2021, at around 20:00 hours, he went to the deceased's home, served him food, and thereafter remained there until about 2:00 a.m. on 3rd April, 2021. On his part, X D7603 D/SGT Rajabu (PW7) testified essentially on how, as the assigned investigator, he attended to the incident. He stated that he procured the services of Grace Mlolo Mwansele (PW6), the medical doctor who conducted the post-mortem examination and tendered the post-mortem report (exhibit P2); removed the deceased's body from the pond; drew the sketch plan of the scene (exhibit P3); seized a manila rope allegedly used to tie the deceased's neck and prepared a certificate of seizure (exhibit P4); recorded the appellant's cautioned statement (exhibit P5); escorted the appellant to Fednand Michael Njau (PW2), a Justice of the Peace, who recorded the appellant's extra-judicial statement (exhibit PI); and recorded statements from all material witnesses. Essentially, exhibit P2 opined that, the deceased died of brain hypoxia due to suffocation. On the other hand, exhibits PI and P5 contained the appellant's alleged voluntary confession that he killed the deceased by pushing him, causing him to fall onto a bed frame, and thereafter tightening a black manila rope around his neck until he died. He further confessed that, he disposed of the body by dumping it in a pond, allegedly with the intention of inheriting the deceased's shamba. On his part, the appellant testified as the sole defence witness (DW1) and categorically denied any involvement in the death of the deceased. He vehemently repudiated both exhibits PI and P5, asserting that, their contents were not voluntarily made but were dictated to him by PW7. Nevertheless, he stated that on Friday, 2n d April, 2021, at about 20:00 hours, he went to the deceased's residence, served him food, and thereafter returned to his own home. According to him, he did not go back to the deceased's house until the following morning, 3rdApril, 2021, at about 6:00 hours, when he found that the deceased was not there. Having received the above evidence, the trial court proceeded to evaluate the confession evidence contained in exhibits PI and P5, as reflected at pages 116 through 119 of the record of appeal. Ultimately, the court disregarded and expunged exhibit P5 from the record after finding that, its recording contravened section 50 (1) of the Criminal Procedure Act, Chapter 20 (the CPA). The court thereafter resolved to consider the remaining evidence on record, namely, the circumstantial evidence and the appellant's extrajudicial statement (exhibit PI). In the final analysis, the trial court anchored the appellant's conviction and sentence on circumstantial evidence, notably basing on the fact that, he was the last person seen in the company of the deceased, coupled with his conduct during his visit to the deceased's home on the morning of 3rd April, 2021 and throughout the subsequent search for the deceased. It further relied on exhibit PI. Aggrieved, the appellant appealed to this Court. At the hearing, he was represented by Mr. Fred Peter Kalonga, learned Advocate, while the respondent, Republic, was represented by Ms. Mercy Ngowi, learned Senior State Attorney, assisted by Mr. Frank Chonja, learned State Attorney. The appeal was argued on the three grounds set out earlier. Submitting in support of the appeal, on the first ground, that, the prosecution failed to discharge its burden of proving the case against the appellant beyond reasonable doubt, Mr. Kalonga assailed the evidence of PW2, particularly in relation to the appellant's extrajudicial statement which he recorded (exhibit PI) that, it was improperly admitted in evidence and subsequently relied upon by the trial court. He argued that, as reflected at page 32 of the record of appeal, PW2 disclosed the contents of the statement before it was formally tendered and admitted in evidence as shown at page 33 and 34, thereby occasioning procedural irregularity and prejudice to the appellant. Besides, Mr. Kalonga contended that, PW2's testimony was materially inconsistent with exhibit PI. For example, he argued, during cross-examination, page 34 of the record of appeal bears out that, PW2 testified on what the appellant stated before him that, the deceased's death resulted from being pushed onto the bed frame and not from hanging by a manila rope which was allegedly what the appellant stated in the extrajudicial statement (exhibit PI). In light of the glaring material discrepancies between PW2's oral testimony and exhibit PI, discrepancies that strike at the very root of the prosecution's case and remained unresolved during re-examination, Mr. Kalonga urged the Court to expunge exhibit PI from the record. He contended that, it was unsafe for the trial court to predicate the conviction upon such inconsistent evidence. Submitting on the testimonies of PW3, PW4, PW5, PW6 and PW7, Mr. Kalonga vehemently faulted it for being inadequate to establish the appellant's guilt He argued that, none of PW3, PW4 and PW5, who were close to the family, incriminated the appellant in relation to the deceased's death. As for PW6, the doctor, he only established the deceased cause of death which did not connect the appellant to it. Regarding PW7, Mr. Kalonga contended that his evidence was worthless as it relied on the expunged cautioned statement of the appellant (exhibit P5). He further argued that, PW7's testimony 7 amounted to mere hearsay and opinion evidence, which the Court ought not to accord any weight, as it was unsupported by independent and admissible evidence. It was Mr. Kalonga's final contention on the first ground of appeal that, although the prosecution ably established the fact of the deceased's death, it failed to prove that the appellant was its author. He thus urged the Court to allow the first ground of appeal. On the second ground of appeal which, essentially faults the circumstantial evidence for being fraught with discrepancies and improbabilities, Mr. Kalonga submitted that, based on his arguments under the first ground, it was improper for the learned trial judge to rely on inadequate circumstantial evidence to convict the appellant. He added that, apart from the impugned evidence contained in exhibit P5, there was no witness who testified that the appellant killed the deceased in order to inherit his shamba. After all, he argued, there was nothing suspicious in the appellant, who used to take care of the deceased. He therefore implored the Court to allow the second ground as well. With respect to the seventh ground of appeal that, the trial court failed to properly consider and evaluate the appellant's defence, Mr. Kalonga briefly submitted that, had the trial court properly considered 8 the appellant's defence, it would have found that, it cast doubt on the prosecution's case and would have acquitted him. He accordingly beseeched the Court to allow the seventh ground, allow the appeal in its entirety, and order the appellant's release from prison. In reply, Ms. Ngowi, relying on the decisions in Sospeter Nyanza and Another v. Republic [2022] TZCA 281 and Twaibu Mohamed Ngindo & Another v. Republic [2024] TZCA 744, opposed Mr. Kalonga's submission in respect of the first ground on the basis that, exhibit PI was admitted in evidence without objection. She contended that, as held in the cited authorities, any objection ought to have been raised before the document was admitted in evidence. Nevertheless, Ms. Ngowi conceded that, it was unprocedural for PW2 to disclose the contents of exhibit PI before it had been formally admitted in evidence. She, however, maintained that, since no objection was raised by the defence at the time, the learned trial Judge was justified in relying on the exhibit in convicting the appellant. She further conceded that the facts in the authorities she cited are distinguishable from those of the present case. With regard to the alleged discrepancy between PW2's oral testimony and the contents of exhibit PI appearing at pages 34 and 94 of the record of appeal, Ms. Ngowi submitted that, the inconsistencies were minor and did not go to the root of the prosecution's case. She ultimately implored the Court to dismiss the first ground of appeal. On the second ground, Ms. Ngowi contended that, the evidence of PW4 and PW5 established that the appellant was the last person seen with the deceased, thereby advancing strong circumstantial evidence linking him to the deceased's murder. In addition, she further argued that, it was undisputed that the appellant last visited the deceased on the previous evening. According to his defence testimony at page 86 of the record of appeal, he returned to the deceased's house the following morning, called out to him but received no response, and instead of entering the house to inquire further, opted to report his absence to relatives. Ms. Ngowi submitted that, such conduct was inconsistent with that of an innocent person and was consistent with what he had stated in exhibit PI), namely, that, he killed the deceased in order to inherit his shamba. However, Ms. Ngowi conceded that there is no evidence on record to show whether there was no any other person who visited the deceased's home during the night after the appellant had retired to his own house and before he returned the following morning and 10 discovered that the deceased was missing. Nonetheless, she urged the Court to dismiss the second ground of appeal as well. On the seventh ground of appeal, Ms. Ngowi opposed the same, contending that, the appellant's defence did not cast any reasonable doubt on the prosecution's case as it was couched in general terms. She argued that, a similar general defence had been advanced in Rashid Abdallah Athumani and Another v. The Republic, wherein the Court observed at page 28 that even if such defence were to be considered, it would not have altered the outcome of the case. Ms. Ngowi maintained that, in the present matter, the appellant's defence was duly considered by the trial court. She further submitted that, should this Court find otherwise, it is empowered to re-evaluate the defence and arrive at its own independent conclusion. In the ultimate result, she supported both the conviction and sentence imposed upon the appellant and urged the Court to dismiss the appeal in its entirety. For his part, Mr. Kalonga did not advance any rejoinder but instead reiterated his earlier submissions. We have carefully considered the three grounds of appeal, the submissions advanced by both parties, the applicable law and the record 11 of appeal in its entirety. It is evident to us that, learned counsel are in agreement that, the deceased suffered an unnatural death and there was no direct evidence to implicate his assailant. Therefore, the issue for our determination is whether the evidence in the appellant's confession in his extrajudicial statement and the circumstantial evidence drawn from his conducts cogently established his guilty. From Mr. Kalonga's submission in support of the first ground of appeal above, the first appellate court's decision is assailed on three limbs: one, that, the incriminating evidence in exhibit PI is vitiated by the evidence of PW2, who disclosed its contents prior to its formal admission in evidence, the action which occasioned procedural irregularity and prejudice to the appellant; two, that, PW2's evidence is materially inconsistent with the contents in exhibit PI; and three, that, the evidence by PW3, PW4, PW5, PW6 and PW7 is incapable of establishing the appellant's guilt. Starting with the first limb, we have revisited PW2's evidence during examination in chief. The assailed part is at page 32 of the record of appeal. We find it apt to let it speak by itself: "... I then asked him to te ll me what he wanted to te ll me. He told me that on 2nd April\ 2021 a t 12 _ h is village Manga, a t around 23 hours he pushed h is unde to the frame o f h is bed and as a result, h is unde died. A fter h is unde died, he took a m anila rope, tied it on the deceased's neck. Thereafter he carried the body went to throw it a t a pond in his farm. He toid me that he tried (sic) the rope on that deceased's neck to make it look as if the deceased com m itted suicide. ...the reason he killed the deceased is because he wanted h is farm... the deceased was living in the same village, Manga villag e..." During cross-examination, PW2' further testimony which is reflected at page 34 of the record was that: "He told me that he pushed the deceased on his...bed. He said that the death occurred as a result o f pushing him to the bed. It did not occur as a result o f being hanged by the m anila rope." The complaint by Mr. Kalonga is that, exhibit PI ought to be expunged because its contents above was improperly disclosed by PW2 before its admission in evidence. On her part, though Ms. Ngowi conceded that, such disclosure was unprocedural, she maintained that, since exhibit PI was admitted without objection, the learned trial Judge was justified to rely on it to convict. 13 ___ In Severino Bruno Choma v. Republic [2025] TZCA 322, the Court held that: " Principally, exhibits in court proceedings m ust pass through four stages fo r their im peccable adm ission: one, identification where a w itn e ss m u st s ta te b efo re the c o u rt if, a n d h o w he id e n tifie s th e in te n d e d e x h ib it; two, cle a ra n ce b y lo o k in g a t th e le g a l re q u ire m e n ts o f its a d m is s ib ility which involves objection from the opposite side, then adm ission; three, m a rkin g it to fo rm p a rt o f eviden ce; and four, h a vin g it re a d o u t... It m ust be appreciated that, each o f the four stages has its own procedural and evidential significance and are engaged by a tenderer in hierarchical order."[ Emphasis supplied.] This Court had in its several decisions pronounced itself on the consequences obtaining to witnesses who disclose the contents of confessional statements prior to their admission in evidence. It suffices to reiterate here the position made on the point by the Court in Hussein Hassan @ Antiti v. Republic [2024] TZCA 1070 and Denis Geraz v. Republic [2025] TZCA 196, where in the latter case we held, amongst other things, that: 14 "Since it is settled law that, a d ocu m en t m u st b e cle a re d fo r ad m issio n b efo re it is re a d o u t a t the trial, d o in g o th e rw ise as it transpired in this case, was tantam ount to introducing the confessional statem ents o f the appellant through the backdoor which ca n n o t b e condoned. In the prem ises and in order to rem edy the om ission, w e expunge the co n fe ssio n a l sta te m e n ts o f th e a p p e lla n t to g e th e r w ith th e eviden ce o f P W 5 a n d P W 6 ." [Emphasis supplied.] In the matter at hand, the impugned portion of the evidence is, in our considered view, plainly inconsistent with the well-settled position of the law, as interpreted by this Court above. We therefore respectfully disagree with Ms. Ngowi's submission that, the evidence of PW2, together with exhibit PI ought to be accorded credence merely because the defence did not object to the admission of exhibit PI at the trial. It is trite that, the mere absence of objection does not cure a fundamental legal defect in the admissibility of evidence. The duty lies squarely upon the trial court to satisfy itself that a cautioned statement or extrajudicial statement meets the requisite legal standards before admitting it into evidence or giving it weight at judgment stage. We are satisfied that, had the trial court carefully evaluated PW2's testimony in 15 light of the established legal principles governing the admissibility of such statements or relying on it to convict, it would have declined to admit exhibit PI or rely on it at judgment stage as it did for exhibit P5. In view of the foregoing discussion, the appellant's extrajudicial statement (exhibit PI), together with the evidence of PW2 are hereby expunged from the record. Consequently, the complaint raised under the second limb, being wholly predicated upon the impugned and now expunged evidence, is rendered futile and calls for no further consideration. Thus, upon expunging Exhibit PI, the pivotal question for determination is whether the remaining evidence, when considered cumulatively and subjected to careful scrutiny, establishes the appellant's guilt beyond reasonable doubt. This brings us to the third limb of the first ground, as well as the second and seventh grounds of appeal, which, upon close examination, are inextricably linked. These grounds primarily rely on the testimonies of PW3, PW4, PW5, PW7 and DW1, in relation to the application of the doctrine of "the la st person to be seen with the deceased alive,"and the appellant's conduct between Friday, 2n d April, 2021 and the morning of 3rd April, 2021, when the deceased was discovered missing. 16 The two strands of evidence under consideration properly fall within the ambit of circumstantial evidence, a category which, unlike direct evidence, depends on inferences drawn from established facts to arrive at a conclusion of guilt. We are of the respectful view that the learned trial Judge erred in treating them as separate and independent forms of evidence, rather than evaluating them cumulatively as interconnected links in a single, continuous chain of circumstances. At the very outset, we wish to associate ourselves with the trite law that, for a court to convict on circumstantial evidence, it must be satisfied that such evidence forms a complete and unbroken chain of events which irresistibly points to the guilt of the accused and excludes any reasonable hypothesis consistent with his innocence. For further guidance, see-Jimmy Runangaza v. Republic [2018] TZCA 188 and Stephen Tumaini Mduma v. Republic [2025] TZCA 601. In Jimmy Runangaza (supra), we underlined the above position as follows: "It is w ithout question that the tria l court convicted the appellant on the basis o f circum stantial evidence as none among the witnesses saw the appellant killin g the deceased, .... we find it appropriate to discuss briefly on the position o f the law regarding circum stantial evidence and other principles o f law. 17 In order for the circum stantial evidence to sustain a conviction ; it m ust point irresistibly to the accused's guilty. (See Simon Musoke i/. Republic, (1958) EA 715). Sarkar on Evidence, l$ h Ed 2003 Report Vol. 1 page 63 also em phasized that on cases which rely on circum stantial evidence, such evidence m ust satisfy the follow ing three tests which are: 1) The circum stances from which an inference o f g u ilty is sought to be drawn, m ust be cogently and firm ly established; 2) Those circum stances should be o f a definite tendency unerringly pointing towards the g u ilty o f the accused; and 3) The circum stances taken cum ulatively should form a chain so compete that there is no escape from the conclusion that within a ll human probability the crim e was com m itted by the accused and no one else. With regard to situations where the evidence adduced implicates the accused as the last person seen with the deceased alive, courts have taken judicial cognizance of the rebuttable presumption that such a person is the author of the deceased's death, unless he offers a plausible explanation to the contrary. See Mathayo Mwalimu & 18 Another v. Republic, Criminal Appeal No. 147 of 2008; Akili Chaniva v. Republic, Criminal Appeal No. 156 of 2017; Miraji Idd Waziri @ Simana & Another v. Republic, Criminal Appeal No. 14 of 2018 (all unreported); Emmanuel Kondrad Yosipati v. Republic [2019] TZCA 25; and Abel Mathias @ Gunza @ Bahati Mayani v. Republic [2023] TZCA 25. In Abel Mathias @ Gunza @ Bahati Mayani (supra), we dismissed the appellant's appeal because he had offered no explanation in his testimony, let alone a plausible one. He simply denied involvement and maintained that he was never at the bodaboda centre and he further accused PW1 and PW3 of framing up the case for their own ill motive. After evaluating the evidence on record, we finally held that: "In the end, the evidence o f the appellant purporting to explain away the principle o f la st person to be seen, is not actually an explanation but a lam e attem pt to cast stones a t PW3. It is our conclusion that the appellant was the la st person to be seen with the deceased and he has not made a plausible explanation exonerating him from the presum ption that he is the one who kille d him ." 19 In another appeal, Stephen Tumaini Mduma (supra), the Court dealt with a case where the appellant, unlike in Abel Mathias @ Gunza @ Bahati Mayani (supra), had sufficiently advanced a plausible explanation rebutting the presumption arising under the "last seen" doctrine. Consequently, the Court allowed his appeal, while at the same time underscoring the key considerations that ought to guide courts when determining similar cases. We let the relevant part the Court holding at pages 9-12 and 14-16, to speak for itself as detailed below: "As it was correctly argued by the appellant, the prosecution bears the burden o f proving a ll inculpatory facts and circum stances connecting the appellant with the death o f the deceased to require him to give plausible explanation on the circum stances leading to such death. In the present a p p e a lth e appellant was found g u ilty based on the evidence o f PW 6 th a t h e w as th e la s t p e rso n to be seen w ith th e d eceased a liv e .... N onetheless, th e tr ia l co u rt w as o b lig e d to co n sid e r a n d te s t each a n d e v e ry evid en ce on th e b a sis o f th e p ro b a b ilitie s, re lia b ility a n d th e credence o f each a n d e v e ry w itn ess, p a rtic u la rly , w hen th e re w ere tw o op p o sin g versio n s o f th e story.... In that respect, we strongly believe that had the 20 __ tria l court subjected the entire evidence to proper scrutiny, including the defence case, it would not have readily taken the evidence o f PW 6 a t its face value.... We are alive that the tria l court did not see the need o f calling witnesses from Sinza Palestine H ospital on account that there was no particular num ber o f witnesses required to prove a fact. Much as, we agree on such position o f the law, as stipulated under section 143 o f the Evidence Act, w e are o f the stro n g vie w th at, each case m u st be d e term in e d acco rd in g to it s p e c u lia r fa c ts ... Since there was no explanation given by the prosecution on its failure to summon the young man, we draw an adverse inference against its case... In the fin a l analysis, we agree with the appellant that the pieces o f evidence relied on by the tria l court to convict him were too weak to sustain h is conviction and it would be unsafe to rely on so litarily words o f PW 6...” [Emphasis added.] Reverting to the instant appeal, the issue whether the remaining evidence, when considered cumulatively and subjected to careful scrutiny, establishes the appellant's guilt beyond reasonable doubt necessitates a reappraisal of the testimonies of PW3, PW4, PW5, PW7 21 and DW1, after dispensing with the evidence of PW6 and exhibit P2, which are not in contention. As the first appellate Court in this matter, we have duty to evaluate the entire evidence on record and to reach to our own conclusion in terms of rule 36 (1) (a) of the Tanzania Court of Appeal Rules, 2009. For further guidance, see- Ngusa s/o Shija v. Republic [2012] TZCA 367, Nyakwama s/o Ondare @ Okware v. Republic [2021] TZCA 592 and Hassan Singano @ Kang'ombe v. Republic [2022] TZCA 261. In view of the above, we deem it appropriate to reproduce parts of respective testimonies found at pages 35-37 (PW3); 37-39 (PW4); 40-41 (PW5); 46-53, 78-81 (PW7); and 84-87 (DW1) in extenso, as hereunder: PW 3: "Also, I am village chairm an,... Ramadhan Mohamed was a resident o f Manga village.... He was living with his nephew Jumanne A lex M taturu...I do n o t kn o w th e p e rso n w ho cau sed th e death... The deceased had his house...but h e re ce iv e d h is needs a n d ca re o f Ju m an n e A ie x M taturu, I do n o t k n o w i f he w as in vo lved . "[Emphasis added.] 22 PW 4: "...I am ....a chairman o f Mfumbu Ham let at Manga village... I know Ramadhan Mohamed...He was living with h is nephew who is Jum anne Alex Mtaturu. ...had his house...,. Jumanne Alex M taturu had his house.... On 3/4/2021 a t 6am I was a t m y home. I re ce iv e d a p h o n e c a ll fro m S h a d ra ck Sim a. He told me that Ramadhan Mohamed Kasim has gone m issing.... I asked Jumanne Alex M taturu about the incident. H e to ld m e th a t on F rid a y 2 /4 /2 0 2 1 a t 2 0 hoursf he w as w ith th e d eceased a t th e d eceased 's hom e. H e w as g iv in g h im food. A fte r he h a d fin ish e d , he re m a in e d th ere w ith h im up to p a s t m id n ig h t (a t 2am 3 /4 /2 0 2 1 ) ...Ram adhan M oham ed...depended on Jum an n e A le x M ta tu ru fo r h is needs. I never heard o f any dispute between Jumanne A lex M taturu and the deceased.... It was not easy fo r me to know who was responsible fo r the death... I d id n o t kn o w w ho k ille d th e a ccu sed (sic)..." [Emphasis added.] PW 5: "...M y unde Ramadhan Mohamed ... was living alone in h is house. The person near him was his 23 nephew...one Jumanne A lex Mtaturu. They were livin g differently...I asked Jum anne A lex what m ight have happened to the deceased. H e to ld m e th a t on 2 /4 /2 0 2 1 a t 21 h o u rs h e w as w ith d eceased a t the d eceased 's hom e. H e le ft a n d w en t b a ck th e re a t 1 :0 0 hours. They ta lk e d fo r one hour. Then Ju m an n e A le x re tu rn e d to h is hom e to sleep. A t 5 h o u rs on th e sam e d a y 3 /4 /2 0 2 1 he went back to the deceased's home but he did not find him ...Jum anne told me that fo r about one week, the deceased had fever. Thus, he was helping him by giving food...I do not know the person who tied the rope in the deceased's neck. I do n o t k n o w th e p erso n w ho d id th e in cid e n t.... I w as n o t aw are o f a n y d isp u te b etw een Ju m an n e a n d th e d e cea sed ." [Emphasis added.] PW 7: ".../ was assigned to go to the scene...we arrived a t 11 hours...I also collected evidence o f a ll witnesses. I recorded statem ents o f witnesses. Then it occurred that th e fa m ily su sp e cte d th e d ecea sed 's p e rso n s n ep h ew one Ju m an n e A le x who was living near the deceased...That th e accu sed to ld h is re la tiv e s th a t on 2 /4 /2 0 2 1 w hen h e v is ite d 24 th e deceased, he b equ eath ed h im h is farm . A lso , on 3 /4 /2 0 2 1 a t aro u n d 5 hours, he is the one who reported that the deceased was murdered. They su sp e cted th a t th e d eceased (s ic ) w as re sp o n sib le a n d o u g h t to be arre ste d . I a rre ste d th e accu se d person, took him to Singida Police Station for interrogation.... I b e lie v e d th a t th e accu se d is th e one w ho cau sed the death a s v o lu n ta rily co n fessed b efo re m e a n d he a sk e d to be taken to a ju s tic e o f p eace w here he m ade h is e x tra ju d ic ia l co n fe ssio n (s ic ) on th e sam e day. B ecause o f th is I b e lie v e d th a t he is th e cu lp rit... It is true that the accused person is the murderer. He killed the deceased using the m anila rope... The d ecea sed 's re la tiv e s w ere the on es th a t su sp e cte d th e a ccu sed person. They w ere Ram adhan H assan N kungu, Ram adhan M in d e a n d Shadrack... Because the prosecution h a s n o t d o se d it s case it can c a ll S h a d ra ck i f it so w ished.... The a ccu sed co n fe sse d to m e th a t he k ille d h im because he w an ted to in h e rit h is land... "[Emphasis added.] D W 1: "... Ramadhan Mohamed was m y unde. I rem em ber that on 3/4/2021 I w en t to m y 25 u n cle 's hom e in the m o rn in g to g re e t him . I a lw a y s do th a t When I got there, he was not present I went back home and told m y wife that m y unde was not a t his home. We d e cid e d to in fo rm n e ig h b o rs th e n e ig h b o rs are, S hadrack, M im b i a n d Sum be. S h ad ra ck came with a phone. He made a phone ca ll to the Ham let's chairman. He told us to start searching fo r the deceased as he was coming. We started to search fo r the deceased. We went around the farm s looking fo r him. A s we w ere se a rch in g S h adrach w en t to th e p o n d w here he fo u n d h im dead. He told us that he has found the deceased dead in the pond. ....W e notified the Ham let leader.... When he camef he found us at the scene..., I was taken by two policem en... The in v e s tig a to r one R a ja b ...sta rte d b e a tin g m e...w hen I confessed, he sto p p e d b e a tin g me... I t is sad that the person m urdered was my unde. I w as th e one ta k in g care o f him . I w as th e o n ly one ta k in g care o f h is life . A t 5am, on 3/4/2021, I did not go to m y uncle's home. I w en t th ere a t 6am . I t w as m y n o rm a l ro u tin e . I w as g o in g to g re e t him e v e ry m orning. Me and m y wife were the ones giving him food. On 2 /4 /2 0 2 1 , I w as th e one w ho w en t to g iv e h im food. I was there when 26 he was eating a t 20 hours. A fte r g iv in g him food, I le ft. I do n o t kn o w i f I w as th e la s t to m e e t him a s he h a d h is hom e. We live in different grounds,...I noticed that m y unde was out when I called him from outside. H is d o o r w as open. In m o st cases, b y 6am , he is aw ake. When I go there, I find him washing his face or ju st seated outside. I suspected because the door was open and when I called him, he did not respond... I p ra y th a t th e co u rt sh o u ld re le a se m e . h e had his farm and I had mine... When I called the neighbour, we went searching fo r him... I w as w ith S h a d ra c k b u t w e w ere far. S h a d ra ck w as the one w ho sa w th e b o d y fir s t A t the scene, I to ld Ram adhan H assan N kungu th a t I w as w ith m y u n d e a t 2 0 hrs. on 2 /4 /2 0 2 1 . I a lso to ld O m a ri th e sam e... W hat I have sta te d in th is co u rt is true. "Emphasis added.] We have carefully examined the testimonies of PW3, PW4, PW5, PW7 and DW1 as reflected in the record of appeal and the relevant portions of which, have been reproduced above. Starting with the interpretation of the evidence to determine whether it supports the invocation of the la s t seen "doctrine against the appellant, we observe at once that PW3, PW4 and PW5, the village 27 chairperson, the hamlet chairperson and the deceased's nephew respectively, on the one hand, and DW1, on the other, are all in agreement that, apart from the fact that the appellant was the deceased's daily caretaker, the two were on good terms. Their evidence further shows that, the appellant last visited the deceased on 2n d April, 2021 between 19:00 and 21:00 hours to serve him dinner and thereafter left the house, at any case before 3:00 hours. Significantly, no evidence was led to establish that no other person entered the deceased's house before the appellant discovered him missing the following morning, on 3rd April, 2021, at about 05:00/06:00 hours. This observation, in our view, aligns with the position later taken by Ms. Ngowi who, when probed as to whether, during the period between midnight of 2n d April, 2021, when the appellant allegedly left, and the morning of 3rd April, 2021 when he returned, the prosecution had established that, no other person had gone to the deceased's home, rightly conceded that no such evidence existed. She further acknowledged that, after the appellant had left, nothing could have prevented the deceased from meeting his death at the hands of another person. 28 In our considered view, this position underscores the evidentiary gaps in the prosecution case. Although Ms. Ngowi maintained that, the gaps did not break the chain of the prosecution evidence, we find merit in Mr. Kalonga's contention that, those gaps are incurable and raise doubt to the prosecution case. In particular, the testimony of PW7, which is largely hearsay and appears to have been influenced by the expunged evidence contained in exhibits PI and P5, did not resolve those gaps. The contention by Ms. Ngowi that, the testimonies of PW3, PW4, PW5 and PW7 established watertight circumstantial evidence against the appellant is, upon our examination of the entire body of evidence on record, baseless. First, as we have already held, the evidence does not establish that, no other person entered the deceased's house after the appellant had left and before he discovered the deceased missing on the following morning of 3rdApril, 2021 at about 05:00/06:00 hours. Secondly, the testimonies of PW4 and PW5 do not support PW7's assertion that, they informed him that they suspected the appellant of causing the deceased's death. On the contrary, PW7 testified that: " The deceased's relatives were the ones who suspected the accused person. They were Ramadhan Hassan Nkungu, Ramadhan Minde and Shad rack." 29 This inconsistency amounts to a material contradiction which, in line with our holding in Mohamed Said Matula v. R [1995] T.L.R. 3, goes to the root of the prosecution's case. Thirdly, although PW7 informed the trial court that, Ramadhan Hassan Nkungu, Ramadhan Minde, Shadrack Sima and one Sumbe could have been called as witnesses, none of them was eventually summoned to testify before the close of the prosecution's case. The failure to summon individuals who, on the face of the record, appeared to be material witnesses left that crucial aspect of the case unproved. In the circumstances of this case, we are of the considered view that the trial court could properly have invoked section 209 (formerly section 195) of the CPA, which empowers the court to call witnesses as court witnesses where the interests of justice so demand. This position was well articulated by the High Court in Lameck Simon Nyenza v. Republic [2010] TZHC 217. In view of the above discussion, the appellant's complaints in the second and seventh grounds of appeal as conjointly argued in the framed issue, are well-founded. We accordingly find merit in them and uphold the same. 30 ___ In view of the foregoing, we settle the issue whether the remaining evidence, when considered cumulatively and subjected to careful scrutiny, establishes the appellant's guilt beyond reasonable doubt in the negative. We hereby allow the appeal, quash the appellant's conviction, set aside his sentence and order for his immediate release from prison unless he is otherwise lawfully held. DATED at DODOMA this 17th day of March, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL lelivered virtually this 18th day of March, 2026 in the presence of the Appellants in person, Mr. Frank Chonja, learned State Attorney for the Respondent/Republic, and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. 31