Paskazia Andrew Sindano @ Mwana Andrew vs Republic (Criminal Appeal No. 261 of 2023) [2026] TZCA 242 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA. J.A., MAIGE. J.A.. And MANSOOR. J.A.1 CRIMINAL APPEAL NO. 261 OF 2023 PASKAZIA ANDREW SINDANO @ MWANA ANDREW ............. APPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Massam. J.^ dated the 14th day of December, 2022 in Criminal Session No. 25 of 2020 JUDGMENT OF THE COURT 10th February & 5th March, 2026 MANSOOR. J.A.: The appellant, Paskazia Andrew Sindano @ Mwana Andrew, was arraigned before the High Court of Shinyanga at Shinyanga on a charge of murder contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E. 2002]. It was alleged that, on 15th February, 2019 at Misayu Village within Kahama District in Shinyanga Region, the appellant murdered one Kashindye Megamagiko, a child aged three years. i

The prosecution case was that, on the material date, the deceased's mother, Teleza Fala (PW3), left the deceased child and his brother, Masalu Hamisi (PW4), under the care of the appellant, who was her daughter-in-law. PW3 left home at 8:00 a.m and went to attend to her farm. According to PW4, the child of PW1, after PW1 left home, the appellant asked him for a bush knife, purportedly for harvesting the maize and thereafter had asked him to go to the forest to look for fruits, leaving the appellant alone with the deceased child. PW4 obliged and upon returning home, he did not find anybody. He then went to the neighbor, one Gimbi and found the appellant at Gimbi's house. Upon inquiring about his brother's whereabouts, the appellant told PW4 that, he would not see the deceased again. PW3 returned home around 1:00 p.m. She was informed of the child's disappearance and she immediately started searching for him. She found the appellant at Gimbi's house. Later during the evening hours, the neighbors discovered the body of the deceased lying at the back of PW3's house, covered with maize stalks. They retrieved the body which was inflicted with multiple cut wounds on the head. 2

Jilala Lutalamila (PW5), the Village Executive Officer (VEO) and a Justice of Peace, testified that, upon interrogation, the appellant confessed to killing the deceased. She allegedly explained that, a traditional healer had told her that, her mother-in-law (PW3) was bewitching her, causing her to suffer miscarriages, and she killed the child in revenge. PW5, further stated that, the appellant led him to where she had hidden the bush knife she used in the commission of the offence. The bush knife was seized and tendered in court as exhibit P3. A post-mortem report (exhibit PI) indicated that, the cause of death was severe bleeding from the cut wounds inflicted on the deceased's head. In her defence, the appellant denied any involvement. She testified that, she was left with the children but later left them alone as she went to visit her sick sister-in-law, Siria. She stated that, she was subsequently arrested and beaten by the militiamen, and that her alleged confession was not freely made. At the conclusion of the trial, the trial court found the appellant guilty of murder, convicted her, and sentenced her to death by hanging. 3

The appellant, being dissatisfied with the conviction, has appealed to this Court. Her memorandum of appeal contains four grounds. However, during the hearing of the appeal before us, Mr. Gervas Geneya, learned advocate who appeared for the appellant, argued on grounds 1, 3, and 4 together. Ms. Immaculata Mapunda, learned Senior State Attorney and Mr. Satuninus Kamala, learned State Attorney, appeared for the respondent/Republic. The grounds of appeal marshalled by the appellant were as follows:

1. That, the Honourable Trial Judge erred in law by failure to consider that, the prosecution side failed to prove their case beyond reasonable doubt.
2. That, the Honourable Trial Judge erred in law and fact by wrongly admitting the evidence of PW1, who was not among the list of witnesses during plea taking.
3. That, the Honourable trial judge erred in law and fact by misapprehending the nature, substance, and quality of evidence in the entire proceedings, thus leading to unfair conviction.
4. That, the Honorable trial Judge erred in law and fact on basing the conviction of the appellant on mere suspicions and without hearing key witnesses, thus leading to unfair conviction.

At the hearing, Mr. Geneya argued that, the prosecution's case was purely circumstantial and lacked the necessary cogency and coherence to prove the appellant's guilt. On the doctrine of last person to be seen with, he contended that, the appellant had offered a plausible explanation that, she left the children on their own and went to visit a sick relative. He argued that, the trial court did not consider this line of defense of the appellant, that, at the time of murder, the appellant was not at the crime scene. He submitted further that, the defense of alibi, though raised without prior notice under section 194 of the Criminal Procedure Act [Cap 20 R.E. 2019], was still a defense of the appellant and deserved to be weighed against the prosecution's evidence. He relied on the case of Daimu Daimu Rashid @ Double D vs Republic (Criminal Appeal No. 5 of 2018) [2019] TZCA 366 (4 November 2019) to support the proposition that an alibi, even if raised late, must be considered. Regarding the confessional statement and the recovery of the bush knife, Mr. Geneya submitted that, the alleged confession was not free and was not given voluntarily, as the appellant had testified that, she was beaten by the militiamen. He further argued that, the procedure for seizing the bush knife was fatally flawed. He pointed out that, there was no certificate of seizure as required by law, and the

police officer (Afande Mchome), who was present at the recovery, was not called to testify. He cited the cases of Mustafa Darajani vs Republic (Criminal Appeal 277 of 2008) [2011] TZCA 176 (27 June 2011) and Fumu Ali Makame & Another vs Director of Public Prosecutions (Criminal Appeal No. 686 of 2023) [2024] TZCA 303 (6 May 2024) for the proposition that, failure to issue a certificate of seizure and to call a key witness to the recovery of an exhibit, renders the exhibit of little evidential value. On his final ground, Mr. Geneya submitted that, the prosecution failed to call crucial witnesses whose testimony was necessary to unfold the narrative. He mentioned Mohammed Salehe, who first alerted PW5 and allegedly heard the admission of the appellant before PW5; Afande Mchome, who seized the bush knife; and the medical doctor who prepared the post-mortem report. He argued that, their absence created a gap in the prosecution's case, which was wholly circumstantial, and he prayed that, the gaps created by the prosecution in their case, be resolved in favor of the appellant. For this proposition, he heavily relied on the recent decision of this Court in Sisty Reuben v. Republic (Criminal Appeal No. 280 of 2022) [2024] TZCA 1083 (8 November 2024).

In reply, Ms. Mapunda conceded that, the bush knife (exhibit P3) was seized without a certificate of seizure. However, she submitted that, the appellant had not objected to its tendering at the trial, and therefore the defect was not fatal. On the confession, she argued that, the appellant's claim of being beaten was not corroborated and that, the trial Judge rightly accepted PW5's testimony regarding the allegations of beatings as an afterthought. Regarding the key witnesses, she submitted that, PW5's testimony was sufficient, as he was the one who received the confession from the appellant and who recovered the bush knife. Mohammed Salehe, she argued, was not a key witness because PW5 obtained the confession directly from the appellant. She maintained that, the doctrine of last person to be seen with was properly applied as the appellant was the last person to be left with the deceased child and that, she failed to give a plausible explanation as to why she left the children unattended. She also failed to explain away the death of the deceased child. In a brief rejoinder, Mr. Geneya maintained his submissions, reiterating that, the failure to follow the correct procedure when seizing an exhibit, even if not objected to, goes to the weight of the evidence, and it is crucial in any criminal trial, for procedures of search and

seizure to be strictly adhered to, to avoid planting evidence not related to the case. We have carefully considered the submissions of counsel for both parties, the record of appeal and noted that, the appellant's conviction was based largely on the doctrine of last person to be seen with and an alleged oral confession which led to the recovery of the murder weapon, the bush knife. The main complaint before us is that, the evidence of prosecution was rebutted by the appellant, claiming that, she was not the last person to be with the deceased child, and that, the procedures for obtaining a confession from her was flawed. That, the procedure for search and seizure for recovery of the weapon was flouted. In totality, the evidence of the prosecution was insufficient to ground a conviction for the offence of murder against the appellant. We shall address the appeal on three key issues; one, whether the evidence of the 'last person to be seen with the deceased' doctrine was properly applied and whether the appellant's defence was given due consideration, two, whether the alleged confession and the recovery of the bush knife were properly admitted and 8

relied upon, and, three, whether the failure to call key witnesses was fatal to the prosecution's case. As to the first issue, the doctrine of 'last person to be seen with the deceased' is a well-established principle of circumstantial evidence. It suggests that, where a person is found to have been the last person to be seen in the company of the deceased, and the deceased is later found dead, that person bears a duty to explain away the circumstances leading to death. In the absence of such an explanation, the court may infer that, the accused person is the killer. See Mathayo Mwalimu & Another vs Republic (Criminal Appeal 147 of 2008) [2009] TZCA 53 (2 November 2009) when this Court remarked that; "In our considered opinion, if an accused person is alleged to have been the last person to be seen with the deceased, in the absence o f a plausible explanation to explain away the circumstances leading to the death, he or she will be presumed to be the killer . " In the instant case, it is not in dispute that, the appellant was left in charge of the deceased and his brother PW4 in the morning of the incident. It is also not disputed, based on PW4's testimony, that, the appellant sent PW4 away to fetch fruits, thereby she remained with

the deceased. The trial Judge relied on this to conclude that, the appellant was the last person to be with the deceased. However, we agree with the submissions of Mr. Geneya and find that, the appellant did provide a plausible explanation in her defence. She testified that, after cooking for the children, she left them alone at home and went to visit her sick sister-in-law, Siria. She stated that, she only learned of the deceased's disappearance when PW3 went to Gimbi's house and found her there. This was a positive defence, essentially an alibi that, she was not at the scene when the murder occurred. We acknowledge that, this defense was raised late, without prior notice to the prosecution as required under section 194 (4) and (5) of the Criminal Procedure Act [Cap. 20 R.E 2019]. Section 194(6) grants the court the discretion to accord "no weight of any kind" to a defence of alibi raised upon without prior notice. The trial Judge, at page 11- 12 of the judgment, indeed gave no weight to this defense, deeming it as an afterthought. We must, however, sound a note of caution. While the court has the discretion to disregard a belated alibi, it is not automatically obliged to do so. The court may still consider the alibi evidence in the light of 10

the entire prosecution case. The value of an alibi lies not merely in its timing, but in its plausibility and the extent to which it creates a doubt in the prosecution's narrative. In this case, the appellant's alibi was that, she was at Siria's house. Who is Siria? She was not called to testify, either by the defence or the prosecution. However, crucially, PW3 and PW4, in their testimony stated that, they found the appellant at Gimbi's house. This piece of evidence from prosecution witnesses actually corroborated the appellant's claim that, she was at her sister-in-law's house when PW3 returned from the farm. If the appellant was at Siria's house at the time when PW3 returned, it begs the question: at what exact time did the murder occur? The post-mortem report (exhibit PI) indicated that, the death occurred around 15.00 hours prior to examination, that is to say, it occurred at 2:36 p.m. on 15th February, 2019, counting backward from the time the examination of the deceased body was conducted at 5:36 a.m. on 16th February, 2019. PW3 left at 8:00 a.m. and had returned home at 1:00 p.m. This means that, the death occurred after PW3 had already returned home which contradicted the prosecution evidence which suggested that, the death occurred before PW3 returned home. i i

The prosecution's timeline is not precise enough to exclude the possibility that, the appellant had already left before the child was killed, possibly by some other person. We find that, the trial Court, while correctly noting the lack of notice for the alibi, did not fully appreciate the nuance that, the alibi was partly corroborated by the prosecution's own witnesses. In a case resting on circumstantial evidence, the chain of circumstances must be so complete as to leave no other rational conclusion than the guilt of the accused. Any missing link must benefit the accused. See Rex vs Kipkering Arap Koske & Another [1949] EACA 135, where the Court of Appeal for Eastern Africa held that, in order to justify, the inference of guilt, on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of her guilt. We are of the respectful view that, the time of death recorded, coupled with the evidence of PW3 and PW4 that, the appellant was at Gimbi's house when PW3 returned home, created a significant gap in the chain of circumstances, and the gap created doubt in the 12

prosecution case, making the case for the prosecution not proved beyond reasonable doubt. This ground, therefore, has merit. On the second issue as to whether the alleged confession and the recovery of the bush knife were properly admitted and relied upon, the prosecution placed significant weight on the oral confession made by the appellant to PW5. The law regarding oral confessions is clear. While admissible, they are the weakest kind of evidence and must be received with great caution. The Court must be satisfied that, the confession was made voluntarily and that it is true. See Boniface Mathew Malyango @ Shetani Hana Huruma & Another vs Republic (Criminal Appeal No. 358 of 2018) [2020] TZCA 314 (18 June 2020), where the Court reiterated the need for extra caution before relying on oral confessions to convict. It was stated that; "...we reiterated that oral confessions o f guilt are admissible and can be acted upon, but we also emphasized that great caution is required before courts rely on oral confession to convict. Admissibility of oral confession does not automatically mean this genre of evidence carries sufficient weight to convict. Even where the court is satisfied that an accused person made an oral confession, the court must take an extra 13

distance to determine whether the oral confession is voluntary." The appellant's defence was that, she was beaten by the militiamen and she confessed under duress. She stated: "that militia did beat me in front o f family member." In the judgement of the trial court, it acknowledged this dispute to have existed and correctly noted that, the confession led to the discovery of the bush knife. She then invoked the principle established in John Peter Shayo & 2 Others vs Republic [1998] TLR 198, which states that, even confessions that are otherwise inadmissible may be allowed in evidence under section 31 of the Evidence Act [Cap 6 R.E. 2019] if they lead to the discovery of a material fact, as the discovery provides a guarantee of the truth of that part of the confession. While this is a correct statement of the law, it is subject to a critical procedural prerequisite: the discovery of the fact, in this case, a bush knife, must be proved according to law. In this case, the bush knife was allegedly shown to PW5 and to one Afande Mchome. The bush knife was then seized. However, no certificate of seizure was prepared and tendered in court to establish that the bush knife was properly seized. This is a serious omission. The procedure for seizing an item is not a mere technicality; it is a safeguard to ensure the 14

integrity of the evidence and to prevent tampering or planting of evidence. This Court has repeatedly emphasized the importance of a certificate of seizure. In Juma Andrea @ Mchichi vs Republic (Criminal Appeal No. 539 of 2016) [2018] TZCA 723 (9 March 2018), we emphasize that, a certificate of seizure is a mandatory requirement and its absence is fatal to the prosecution's case regarding that exhibit. The Court stated that; "The record shows that\ when the alleged stolen cattle were seized at Matonya's "boma" no certicate o f seizure was issued in compliance with section 38(3) o f the CPA. We, just like the learned State Attorney are o f the opinion that, the anomaly has effected the seizure o f the alleged stolen cattle seized at Matonya's "boma", because they might not be the same cattle which were allegedly stolen" The rationale is that the certificate provides a contemporaneous record of how, when, and from who, the item was seized. Without it, the link between the accused and the item becomes tenuous. Ms. Mapunda's argument that, the appellant did not object to the tendering of the bush knife is, with respect, misguided. The failure to 15

object goes to the admissibility of the document, but it does not cure a fundamental defect in the chain of custody or the legality of the seizure. The court has a duty to ensure that, exhibits are properly accounted for. The absence of a certificate of seizure makes it impossible to verify PW5's claim that, the bush knife tendered in court was indeed the one recovered from the appellant's hiding place. Furthermore, the person who could have corroborated the recovery of the bush knife, Afande Mchome, was not called as a witness. According to PW5, Afande Mchome was handed over the bush knife after it was recovered. His absence, when he was a material witness to the recovery, created a significant gap in the prosecution case. We are fortified in this view by the principles stated in Fumu Ali Makame vs Republic (supra), where the Court stressed the need for documentary proof when seizing an item to establish its provenance. The failure to follow the correct procedure for seizure, coupled with the absence of a key witness to the recovery, renders the evidence of the prosecution in its totality insufficient to sustain a conviction. We, therefore, find that, the trial Court erred in relying on this evidence without addressing the procedural deficiencies. 16

Lastly, as to whether the failure to call key witnesses was fatal to the prosecution's case, the prosecution has a duty to call all material witnesses whose evidence is necessary to unfold the narrative of the crime. While the prosecution has the discretion to decide which witnesses to call, the failure to call a witness whose evidence is essential and who is available may lead to an adverse inference being drawn against the prosecution. The classic statement of this principle is found in the case of Aziz Abdallah vs Republic [1991] TLR 71. This position was recently reaffirmed and amplified by this Court in the cases like Sisty Reuben vs Republic (supra) and Baya s/o Lusana vs Republic (Criminal Appeal No. 593 of 2017) [2021] TZCA 16 (15 February 2021). Who were the key witnesses in this case? In our considered view, they included: (i) Mohammed Salehe: PW5 testified that he received a phone call from Mohammed Salehe informing him of the murder. It was Mohammed Salehe who told PW5 that, the community suspected the appellant. If the appellant confessed to PW5, was Mohammed Salehe present? The record does not show. However, Mohammed Salehe was the Deputy Village Chairman and the first person to receive the report at the scene. His testimony could have shed light on the immediate aftermath of the discovery, the condition of the body, and 17

any initial statements made by the appellant. His absence is notable, (ii) Afande Mchome: This police officer was central to the recovery of the bush knife. According to PW5, after the appellant showed them the bush knife, it was given to "Afande Mchome." PW1 also mentioned he was at the scene with Inspector Mchome. PW2, the investigator, stated he was given the bush knife by the OCS, who was A/Inspector Musa Mchome. This officer, therefore, was a direct link in the chain from the discovery to the tendering of the exhibit. He could have testified about the circumstances of the recovery and the seizure. His failure to testify is, in our view, fatal, especially given the absence of a certificate of seizure. In the circumstances of this case, where the prosecution's case was not overwhelming, his evidence would have been of great assistance. However, we note that the failure to call a doctor, while not ideal, is not always fatal if the report is clear, its contents are not disputed, and the appellant was informed of her right to call the doctor as per section 310 (3) of the CPA. But combined with the other omissions, it adds to the overall weakness of the case. Having carefully re-evaluated the entire evidence, we are constrained to find that, the conviction of the appellant is unsafe. The prosecution case rested on a chain of circumstantial evidence with significant missing links as demonstrated hereinabove. 18

Consequently, we find merit in the appellant's appeal. The appeal is allowed. The conviction is quashed and the sentence of death is set aside. We order that the Appellant, Paskazia Andrew Sindano @ Mwana Andrew, be set at liberty forthwith unless she is otherwise lawfully held. DATED at SHINYANGA this 4th day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of Ms. Gloria Ikanda, learned counsel holding brief for Mr. Gervas Geneya, learned counsel for the Appellant, Mr. Leonard Kiwango, learned State Attorney for the respondent/Republic by virtual Court and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a