Mahidi Maganga vs Republic (Criminal Appeal No. 1018 of 2025) [2026] TZCA 318 (18 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: GALEBA. J.A.. MASOUD. J.A. And FELESHI. J.A.l CRIMINAL APPEAL NO. 1018 OF 2025 MAHIDI MAGANGA......................................................................... APPELLANT VERSUS REPUBLIC............................................... ....................................RESPONDENT (Appeal from the Judgment of the High CtHirt of Tanzania at Singida) (Kakolaki, J.1 ) dated the 12th day of July, 2024 in Criminal Sessions Case No. 27 of 2023 JUDGMENT OF THE COURT V ■ 10th February, & 18th March, 2026 FELESHI, J.A.: In this appeal, Mahidi Maganga, the appellant, challenges the conviction and death sentence imposed on him by the High Court of Tanzania Dodoma Sub-Registry, at Singida (the trial court) for the offence of murder, contrary to sections 196 and 197 of the Penal Code, Chapter 16 (the Penal Code). The appellant was alleged to have killed one Makani Edward on the night of 2n d May, 2022 at Mauki Village, Rungwa Ward, Itigi Division, Manyoni District in Singida Region. The appellant denied the charge. To prove its case, the prosecution called four witnesses: Ramadhan Hamis Mihambo (PW1), Nelson Mumwelinde Simon, Medical Officer at Rungwa Health Centre (PW2), L.5775 SGT Raphael (PW3), and G.245 D/CPL George (PW4). It also tendered three exhibits: the postmortem examination report (exhibit PEI), the appellant's cautioned statement (exhibit PE2) and a sketch map of the crime scene (exhibit PE3). The evidence on record shows that, on the material date and place, the deceased was brutally murdered after being cut with a sharp object on the head, face and back. PW2 established the cause of his death was severe brain injury. His report to that effect was admitted in evidence as exhibit PI. In connection with the deceased's kiiling, three persons namely, the appellant herein, Bukwele Maganga Mayunga, and Lufunga Charles, were initially arrested and charged with murder. However, Bukwele and Lufunga were later discharged under section 91 (1) of the Criminal Procedure Act, Chapter 20 (the CPA), before the hearing commenced. During the hearing, PW1 testified that he was a longtime family friend of the appellant. He stated that on 5th May, 2022, the appellant called him by phone and informed him that he was on his way to PWl's home from Mpanda. Upon the appellant's arrival, PW1 observed that he was frequently engaged in phone calls. When PW1 inquired about this, the appellant disclosed that in his village the deceased had been killed and allegedly admitted that he had been involved in the incident together with one Mzalendo. He further requested PW l's assistance in evading arrest. Consequently, PW1 used his National Identity Card to register a new SIM card for the appellant which he left with it and went into hiding. That same night, PW3, accompanied by Ukwele Maganga, arrived at PWl's home searching for the appellant. With the assistance of PW1, they managed to arrest the appellant. On 8th May, 2022 at about 12:00 hours, the appellant was taken to Igunga Police Station. Later at 16:00 hours, they departed from Igunga to Itigi Police Station. Upon arrival, the appellant recorded his cautioned statement (exhibit PE2), in which he admitted the commission of the offence. In cross-examination, PW1 added that the appellant had informed him that three people were involved in the killing of the deceased. 3 PW3 testified that, on 2n d May, 2022 he visited the scene of the crime and obtained information from the deceased's relatives and neighbours. The information indicated that members of the Maganga family had plotted and executed the murder of the deceased on the belief that he had bewitched their relative, Juma Maganga, who had died in Mpanda and was buried in Itigi on the same day, 2n d May, 2022. In connection with that information, Bukweiu Maganga was arrested. Upon arrest, he admitted having attended the family meeting at which the murder of the deceased was planned and further implicated the appellant as the person who executed the killing and had gone into hiding in Igunga. On 7th May, 2022, PW3 proceeded to Igunga where, with the assistance of PW1, they arrested the appellant and escorted him to Igunga Police Station. While there, the appellant's cautioned statement was recorded between 16:00 hours and 18:00 hours by PW3. In that statement, the appellant according to PW3 admitted the offence and orally confessed that he had killed the deceased together with Lufunga Charles. PW3 later tendered the cautioned statement in evidence, which was admitted in evidence as exhibit PE2. — PW4, also a police investigator, testified that on 3rd May, 2022 he visited the scene of the crime where he drew a sketch map (exhibit PE3). While there, they arrested Bukwele Maganga and Lufunga Charles who disclosed how the killing of the deceased had been planned and was to be executed by the appellant, Mzalendo Maganga and Lufunga Charles. Furthermore, on 8th May, 2022, while at Itigi Police Station, PW4 was informed that the appellant was in custody and that his cautioned statement had already been recorded. The said statement was thereafter handed over to PW4 for inclusion in the investigation file. The appellant testified in defence as DW1 and denied any involvement in the offence. He stated that on the night of the incident he was at home mourning the death of his brother, Juma Maganga. Upon learning of the deceased's death, he went to the scene where police officers examined the body and later permitted the burial. After the burial, he returned home to continue with the mourning rites. DW1 further testified that, on 6th May, 2022 he left for Igunga and was later arrested on 8th May, 2022. According to him, they travelled from Igunga to Itigi between 18:00 hours and 21:00 hours. He contended that the cautioned statement (exhibit P2) attributed to him was obtained through torture at Itigi Police Station. In that regard, he alleged that police officers beat him with a hoe handle and compelled him to sign a document whose contents were unknown to him. Having considered the evidence from both sides, the trial court concluded that the prosecution had proved its case mainly through the appellant's cautioned statement (exhibit PE2) and the circumstantial evidence adduced by PW1 and PW3, together with the medical findings contained in exhibit PI. The court rejected the appellant's defence and consequently convicted and sentenced him as stated above. Dissatisfied, the appellant lodged this appeal on seven grounds in the main memorandum of appeal and five grounds in the supplementary memorandum of appeal. However, the grounds in the main memorandum were abandoned except for the 1st and 3rd. In total, therefore, the appellant proceeded with seven grounds as follows: 1. The learned tria l Judge grossly erred in law and fact in convicting the appellant white the prosecution failed to prove its case beyond reasonable doubt. 2. The learned tria l Judge grossly erred in law and fact in adm itting and relying on Exhibit PE2, the alleged cautioned statem ent o f the appellant, which was recorded in contravention o f the CPA. 3. The learned tria l Judge grossly erred in law by relying on alleged post-offence conduct involving m obile phone usage as corroborative evidence, notwithstanding the com plete absence o f any documentary, technical or expert p roof establishing such conduct. 4. The learned tria l Judge grossly erred in law and fact by adm itting, relying upon, and founding the conviction on a cautioned statem ent which was obtained and recorded in contravention o f the CPA and Police General Orders, thereby rendering the statem ent illegal, unsafe and incapable o f sustaining a conviction for murder. 5. The learned tria l Judge grossly erred in law and fact by selectively relying on an unlaw ful and uncorroborated cautioned statem ent while ignoring m aterial contradictions in the prosecution evidence, particularly contradictions relating to the place and tim e a t which the cautioned statem ent was allegedly recorded, thereby rendering the conviction unsafe and occasioning a m iscarriage o fjustice. 6. The learned tria l Judge grossly erred in law by failing to draw an adverse inference against the prosecution fo r its unexplained failure to tender crucial exhibits which were central to the charge and the prosecution's theory o f the case. 7. The learned tria l Judge grossly erred in law and fact by affirm ing a finding o f prem editation and common intention while sim ultaneously accepting the discharge, withdrawal, or non- prosecution o f alleged co-conspirators, w ithout reconciling this m aterial inconsistency. At the hearing of the appeal, the appellant was represented by Mr. Ezekiel Amon Mwakapeje, learned advocate, while Ms. Miyango Kezilahabi, learned Senior State Attorney, assisted by Messrs Nehemia Kilimuhana and Frank Chonja, both learned State Attorneys, represented the respondent, Republic. In support of the appeal, Mr. Mwakapeje consolidated the 2n d and 3rd grounds in the supplementary memorandum with the 3rd ground in the main memorandum (corresponding to grounds 2, 3 and 4 above) and argued them together. He contended that, the cautioned statement (exhibit P2) was recorded in contravention of sections 53 to 58 of the CPA. Specifically, he argued that the appellant's certificate did not indicate whether the appellant had been informed of all the rights enumerated under section 58 (3) of the CPA. Mr, Mwakapeje further submitted that the provisions of subsection (3) are complemented by Police General Order (PGO) 236, which prescribes a specific form for recording cautioned statements and does not grant discretion to the recording officer to add to or omit any of the rights set out under that subsection. He pointed out that, exhibit PE2 did 8 not inform the appellant of his right to add or delete words after the statement had been read, or caused to be read, to him. Counsel therefore maintained that, this omission rendered the exhibit inadmissible, relying on the decision in Petro Sule & Others v. Republic [2023] TZCA 17777. He further submitted that, there were contradictions in the prosecution evidence regarding the place of recording the cautioned statement. He referred to page 49 line 16 of the record of appeal, where PW1 stated that it was recorded at Itigi Police Station, whereas PW3, at page 57 line 9 of the same record, testified that it was recorded at Igunga Police Station. To Mr. Mwakapeje, this was a material contradiction going to the root of the case and shaking the credibility of exhibit PE2. Amplifying the 1st, 4th and 5th grounds in the supplementary memorandum in connection with the 1st ground in the main memorandum (corresponding to grounds 1, 5, 6 and 7 above), Mr. Mwakapeje argued that, the case against the appellant was not proved beyond reasonable doubt due to the prosecution's failure to tender certain exhibits which had been mentioned and listed during the committal and preliminary hearing proceedings. He contended that, the prosecution evidence lacked a sufficient nexus linking the appellant to the commission of the offence. By way of illustration, he pointed out that, the prosecution had referred to exhibits such as a Vodacom printout, a seizure certificate and a machete. According to him, these exhibits were crucial in establishing PWl's claim that he registered a new SIM card for the appellant to facilitate his escape, that a machete was seized from the appellant, and that PW1 had a connection with the appellant. In the absence of these exhibits, he argued, the prosecution's case remained unproved. Furthermore, Mr. Mwakapeje submitted that the trial court erred in convicting the appellant on the basis of evidence purporting to establish common intention. Referring to page 55 line 19 of the record of appeal, he argued that, the appellant had initially been charged jointly with two other persons who were later discharged for lack of sufficient evidence linking them to the offence. Notwithstanding their discharge, the trial court relied on the appellant's cautioned statement, which mentioned those same persons, to convict the appellant alone. According to him, once the two co-accused were discharged, the alleged common intention between them and the appellant could no longer be sustained. — " He further referred us to page 60 of the record of appeal, where Bukwelu and Lufunga were mentioned as having participated in the planning and execution of the killing. Since those individuals were no longer before the court, counsel contended, the remaining evidence was largely hearsay and therefore insufficient to establish the appellant's guilt beyond reasonable doubt. On that basis, he urged the Court to allow the appeal. In opposing the appeal, Ms. Kezilahabi responded to the grounds as argued by Mr. Mwakapeje. Regarding the first set of grounds (grounds 2, 3 and 4 above), she maintained that exhibit PE2 was recorded in accordance with the law. She emphatically contended that, alt the requirements under section 58 (3) (now section 59 (3)) of the CPA were duly complied with. According to her, the appellant's certification appearing at the bottom of exhibit PE2, affirming that the statement was correct, implied that he had nothing to add or omit; therefore, neither the CPA nor the PGO was contravened. She further argued that, the appellant suffered no prejudice, which was evident from the fact that he signed the statement and did not object to its admission. On that basis, she submitted that, the ground lacked merit. ii On the place of recording the cautioned statement, Ms. Kezilahabi argued that, PW3 expressly stated it was recorded at Igunga Police Station. She pointed out that, PW1 testified to seeing the appellant taken out of the lock-up for oral interrogation at Itigi Police Station by PW4, as reflected on page 68 line 19 and page 60 of the record. In reply to the complaint regarding the prosecution's failure to tender certain exhibits, Ms. Kezilahabi submitted that, they were not vital, since the appellant's own evidence in the cautioned statement expressly stated that he used the number registered by PW1 and even mentioned the telephone number. She added that, PW1 was not cross- examined on this point. To reinforce her argument, she cited Nyerere Nyague v. Republic [2012] TZCA 103 and Emmanuel Lyabonga v. Republic, [2021] TZCA 152. She maintained that there was no need for such exhibits because no questions were raised in relation to them. Regarding the machete and seizure certificate, Ms. Kezilahabi noted that, they were not crucial in light of the appellant's voluntary cautioned statement, which was tendered without objection. She relied on Twaibu Mohamed Ngindo & Another v. Republic [2024] TZCA 744. Ms. Kezilahabi opposed the ground that the case was not proved beyond reasonable doubt and the complaint regarding reliance on 12 common intention. She submitted that, it was the prosecution's strategy to arraign only the person against whom the evidence was strongest. According to her, the discharge of the two former co-accused did not weaken the case against the appellant, because the evidence implicating him remained intact and sufficient to prove the charge beyond reasonable doubt. In support of that position, she relied on the decision in Tumaini Yared Mtoro v. Republic [2024] TZCA 23. She further argued that there existed an oral confession by the appellant, which constitutes strong evidence capable of sustaining a conviction. In that regard, she cited the authorities of Juma Mohamed @ Budagara v. Republic [2024] TZCA 1238 and Muhangwa Simon v. Republic [2021] TZCA 103. On that basis, Ms. Kezilahabi urged the Court to find that the appeal lacked merit and to dismiss it. In rejoinder, Mr. Mwakapeje reiterated his earlier submissions and added that, PGO 236 prescribes the form and manner in which suspect's rights must be explained, and that such rights cannot be tempered with. He rejected the contention that the appellant suffered no prejudice, arguing that the law does not require proof of the degree of prejudice once a legal requirement has been violated. Concerning the alleged oral confession and the cautioned statement, he strongly maintained that 13 they could not sustain a conviction because they were illegally procured. He therefore repeated his earlier prayers. We have objectively considered the grounds of appeal, the counsel rival submissions and keenly scanned the record of appeal. The issue underlying all grounds of appeal is whether the appeal has merit. We shall determine the grounds in the same manner as were argued by the counsel. To start with the complaint that exhibit PE2 was illegally recorded, therefore, inadmissible, we find it important to simplify Mr. Mwakapeje's argument. He said, since recording of a cautioned statements is governed by both the CPA and PGO, and the form is prescribed, it is not open to make it otherwise. His contention is premised on section 58 (3), now section 59 (3) of the CPA and Annexure B to PGO 236 which provide: "S. 58 (3) Where a person under restraint refuses to read, or appears to the police officer not to read a statem ent when it is shown to him in accordance with subsection (2), the police officer shall- (a) read the statem ent to him , or cause the statem ent to be read to him ; 14 (b ) a s k h im w h eth er he w o u ld lik e to c o rre c t o r a d d a n yth in g to th e statem en t; (c) p e rm it h im to co rrect, a lte r o r a d d to th e statem en t, o r m ake a n y co rre ctio n s, a lte ra tio n s o r a d d itio n s to th e sta te m e n t th a t he re q u e sts th e p o lic e o ffic e r to m ake; (d) ask him to sign the certificate a t the end o f the statem ent; and (e) certify under his hand, a t the end o f the statem ent, what he has done in pursuance to this subsection ."''[Emphasis supplied]. ANNEXURE B, PGO 236 "CERTIFICATION OF THE SUSPECT under Section ....... I. ............... /. .......... (name o f the suspect) certify that m y statem ent has been shown to me and I read it/the officer cause it to be read to me or the officer read it to me and I declare that was correctly recorded w ith o u t ad d in g o r le a v in g a n y w ord and that it is correct. CERTIFICATION OF THE RECORDING OFFICER under Section ....... I. ...................... (name o f the 15 recoding officer) hereby certify and declare that I have faithfully and accurately recorded and show the record to the above named suspect and ask him to read the record and m ake a n y a lte ra tio n o r co rre ctio n to it he w ish e s to m ake a n d a d d to it a n y fu rth e r sta te m e n t that he wishes to m ake; "[Emphasis added]. In Mr. Mwakapeje's view, the bolded provisions of the above law are mandatory. In elaboration, he added, it is mandatory to, specifically indicate if the maker has either something to "add" or "reduce". The impugned part, in exhibit PE2 was written as follows: UTHIBITISHO:- M im i MAHIDI S/O MAGANGA nathibitisha kuandika m aelezo ya onyo nimesomewa m aelezo haya yapo sahihi kama niiivyoeieza nipo tayari kuweka sahihi yangu ya dole gumba la kulia. Maeiezo niliyoyatoa yapo sawa. Sahihi. ................. UTHIBm SHO: - M im i NCO F.5775 D/SGT RAPHAEL nathibitisha kuandika m aelezo ya MAHIDI MAGANGA kama alivyonieleza na nimemsomea m aelezo yake na ameweka sain i ya dole gumba la kulia chini ya KF 58 (4) (a) (b) na 16 (6) (a) (b) CPA Cap 20 R.E 2019 leo tarehe 8.5.2022 saa 18:00hrs. As clear as it is, phrases like " w ith o u t ad d in g o r le a v in g an y w o rd " and "m ake a n y a lte ra tio n o r co rre ctio n to it h e w ish e s to m ake a n d a d d to it a n y fu rth e r sta te m e n t" are missing in the impugned exhibit. According to Mr. Mwakapeje, this was a fatal omission, whereas Ms. Kezilahabi maintained that these words were covered in the phrases " m aelezo haya yap o s a h ih i kam a kam a ni/ivyoe/eza... N iiiy o y a to a yapo sa w a ." And " kam a a iiv y o n ie ie za . " On our part, we are oblivious of the mandatory requirement that, a proper cautioned statement should be certified and signed by the maker after either reading it, or having it read over to him by the recording officer, or caused to be read to him, which is the dictates of sections 57 (3), (4) and 58 (3) and (4) of the CPA. We also uphold the trite law that, failure to do so (effective certification) renders the cautioned statement inadmissible. See Juma Omary v. Republic [2022] TZCA 798, where this Court observed this requirement as follows: "Our understanding o f this provision is that it requires, among others, the police officer who 17 recorded the interview from the suspect or a person suspected to have com m itted an offence, to certify a t the end o f the record reduced in w riting and if the suspect can read, ask him to sign the said certificate. According to the said provision > the requirem ent to certify the record is couched in the m andatory form. This means that it has to be com plied w ith." In the same authority, we accounted for the certification as follows: "In our view, certification has a p u rp o se o f a u th e n tica tin g th e tru th o f w h a t th e p o lic e o ffic e r h a d re co rd e d and therefore, failure to do so or doing so under non-existent taw, would render the same as if no certification was made a t a ll." In this matter, the exhibit was certified and signed by both the maker and the recording police officer, who certified that section 58 (4) of the CPA had been complied with. This section, 58 (4) provides that: "(4) Subject to the provisions o f paragraph (c) o f section 53, a police officer investigating an offence fo r the purpose o f ascertaining whether the person under restraint has com m itted an 18 offence m ay record a statem ent o f that person and sh all - (a) show the statem ent to the person and ask him to read it; or (b ) re a d th e sta te m e n t to h im o r cau se th e sta te m e n t to be re a d to h im a n d a sk h im w h eth er he w o u ld lik e to a d d o r c o rre c t a n y th in g from the s ta te m e n t " [Emphasis added]. Deriving from the above law and the portion of the record which we have endeavoured to reproduce and critically examine, we find that, the impugned appellant's certificate reflects nothing more than his correct responses, which he duly authored and endorsed. In the circumstances, we respectfully decline to accept Mr. Mwakapege's contention that the appellant's certification was irregular or that he suffered any prejudice. That said and done, we find the complaint that exhibit PE2 contravened the law lacks merit. We, therefore, dismiss it. As regards the complaint about the place where the exhibit was recorded, we shall address it during the determination of the issue whether the case was proved against the appellant beyond reasonable doubt In this regard, the appellant challenges the prosecution's case on 19 three grounds: first, failure to tender exhibits which had been listed at the pre-hearing stage; second, misapplication of the common intention principle; and third, evidential contradictions. The starting point is whether the failure to tender the Vodacom printout, the machete and the certificate of seizure undermined the prosecution's case. We are mindful of the discretion vested in the prosecution in deciding which witnesses to call and which exhibits to tender. This position accords with the spirit of section 152 of the Evidence A ct Chapter 6, which provides that, no particular number of witnesses is required for the proof of any fact. By parity of reasoning, we think that, there is likewise no prescribed number of exhibits required to prove or disprove a particular fact. In other words, it is not the number of witnesses and, or exhibits that grounds a conviction; rather, it is the credibility of the witness or witnesses and the weight of their evidence that sustain a conviction. See- Ngusa s/o Shija v. Republic [2012] TZCA 367. Owing to this principle, in the present matter, although the prosecution listed certain exhibits during the committal and preliminary hearing proceedings and later elected not to tender them, we are of the view that, the prosecution's case cannot fail on that ground alone. 20 Accordingly, we find no reason to fault the trial court or to discredit the prosecution's evidence on that account. We thus dismiss the complaint in the first limb above. We now turn to the second and third limbs of the complaints, which concern the alleged misapplication of the principle of common intention and the existence of contradictory evidence. As the first appellate Court in this matter, the Court is obliged under rule 36 (1) (a) of the Tanzania Court of Appeal Rules, 2009, to re-evaluate the entire evidence on record and arrive at its own conclusion. In discharging that duty, the guiding principle is that, the evidence must be considered as a whole and not in isolation or piecemeal. See Ngusa s/o Shija (supra). In the instant case, it was the prosecution's evidence, through PW3 and PW4 that, the cautioned statement which was also noted by the trial court showed that, the killing of the deceased resulted from a family meeting attended by Mzalendo Maganga, Bukwelu Maganga, Lufunga Charles, Bundala Maganga, Mahidi Maganga (the appellant), Nyamizi Maganga and Sana Maganga. The record has it that, only Mzalendo Maganga was shown by the evidence of PW3 and PW4 to have remained at large. The other 21 members of this group, Bukwelu and Lufunga, were arrested in connection with the offence but were subsequently discharged. While we do not question the reasons for their discharge, we are nonetheless constrained to ask why the same body of evidence, should be believed and relied upon against one individual while being disbelieved in respect of the others who were allegedly involved in the same transaction. This brings us to the appellant's complaint regarding the trial court's inference of malice aforethought on the part of the appellant. Among the grounds relied upon was a family meeting convened on 2n d May, 2022 which as alluded to earlier plotted to kill the deceased. Yet the family members who participated were not arrested as co-accused under the common intention principle in terms of section 23 of the Penal Code. See- the doctrine of common intention in Director of Public Prosecutions v. ACP Abdallah Zombe & Others [2016] TZCA 877. In our considered view, having found that the evidence allegedly gathered by PW3 and PW4 at the scene of the crime has been shown to be unreliable with respect to the other members of the Maganga family to whom the appellant belongs, the same evidence ought also to have been disregarded against the appellant. This is necessary, for interest of 22 justice purposes, to uphold the credibility and impartiality of the criminal investigation and the prosecution process. We note that Ms. Kezilahabi argued that, the appellant confessed, and that, his cautioned statement was admitted without objection, thereby demonstrating its admissibility. However, we are mindful that admissibility and probative value are distinct concepts. As established in Nyerere Nyague (supra), a statement may be admissible yet possess limited weight. In this matter, although we have already held that the cautioned statement was properly admitted, we exercise caution in accepting its contents when viewed in the context of the manner the investigation was conducted. " I his caution is. reinforced by the submissions of Mr. Mwakapejey who pointed out that the circumstances of the statement's recording are questionable: PW3 maintained it was recorded at Igunga Police Station, whereas the appellant claimed it was recorded at Itigi Police Station after he had been, subjected to torture. The appellants version finds support in the evidence of PW1 at page 49 of the record of appeal who testified that: "On th e sam e day a t 1 6:00 h o u rs we h ead ed to I t ig i p o lic e sta tio n because I was in the vehicle that we used. On a rriv a l a t I t ig i 23 p o lic e sta tio n M A H ID I M AGANGA re co rd e d h is ca u tio n e d sta te m e n t regarding m urder o f MAKANI as I was in the next rcm7."[Emphasis added.] PWl's testimony above is consistent with that of the appellant in that, both stated that they departed from Igunga Police Station at 16:00 hours for Itigi. This account contradicts the testimony of PW3, who after arresting the appellant on 8th May, 2022 at about 14:30 hours, claimed that he recorded his cautioned statement at Igunga from 16:00 hours to 18:00 hours, as well as that of PW4, who testified that, while at Itigi Police Station he received the appellant's already recorded cautioned statement for custody. The contradiction between the testimonies of PW3 and PW4, on the one hand, and that of PW1, which on this aspect is similar to the appellant's evidence, on the other, as this Court held in Mohamed Said Matula v. Republic [1995] T.L.R. 3, constitutes a material contradiction going to the root of the case. Moreover, going by the testimony of PW1 above, which the learned trial Judge found credible as reflected at page 111 of the record of appeal, together with the appellant's defence, it is evident to us that, exhibit PE2 was recorded outside the basic period of four hours prescribed under section 51 (1) (a) of the CPA. 24 TTierefore, with respect to the learned trial Judge, we find that, these deficiencies were incurable and that, it was improper for him, even though exhibit PE2 had been admitted without objection, to attach weight to it at the stage of composing the judgment in order to convict the appellant. In the circumstances, he ought to have, as we have done, found the contradictions to be material and incurable, disregarded exhibit PE2, and drawn a negative inference against the prosecution for its apparent attempt to disguise the place where exhibit PE2 was actually recorded. Consequently, we expunge exhibit PE2 from the record. Having expunged exhibit PE2 from the record and found the testimony of PW1 materially contradicts that of PW3 and PW4 on a crucial point, we are satisfied that, the remaining prosecution case, largely reliant on the appellant's conduct, is insufficient to establish his guilt. Accordingly, we find merit in the second and third limbs of the appellant's complaints above, and, considering their cumulative effect, we respectfully agree with Mr. Mwakapeje and conclude that, the prosecution failed to prove its case against the appellant beyond a reasonable doubt. That said, we allow the appeal, quash the conviction and set aside the sentence. We order the appellant's immediate release from prison unless he is lawfully detained for any other reason. 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 The Judgment delivered this 18th day of March, 2026 in the presence of the Appellants in person, Mr. Frank Chonja, learned State Attorney for the Respondent/Republic, via virtual Court, and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. 26