Idrisa Salehe Mwangobola vs Republic (Criminal Appeal No. 7525859 of 2025) [2025] TZCA 1299 (16 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LEVIRA. J.A.. MGONYA. 3.A. And MDEMU, J.A,) CRIMINAL APPEAL NO. 7525859 OF 2025 IDRISA SALEHE MWANGOBOLA ............................................... APPELLANT VERSUS THE REPUBLIC.............................................................. ........RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Dar es Salaam) fKisanva. 3.) dated the 28th day of July, 2023 in Criminal Sessions Case No. 75 of 2022 JUDGMENT OF THE COURT 29th September & 17th December, 2025 MGONYA. 3.A.: The appellant Idrisa Salehe Mwangobola was convicted of murder by the High Court of Tanzania, sitting at Dar es Salaam in Criminal Sessions Case No. 75 of 2022. It was alleged that, on 18th day of March, 2019, at Ungindoni Mjimwema area within Temeke District in Dar es Salaam Region, the appellant murdered Happiness Fredrick. Upon conviction, the appellant was sentenced to death. In a bid to prove their case, prosecution side summoned nine witnesses and tendered five exhibits whilst the appellant was a sole defence i witness. It was the prosecution's case that, the deceased, Happiness Fredrick was a daughter of Fredrick Francis (PW1). Before her death, Happiness was a student of Dodoma University at Dodoma. During trial, PW1 told the court that, the deceased had a plan to return to Dodoma on 19/3/2019. Therefore, on 18/3/2019, she left home to Ubungo Bus Terminal where she later informed PW1 through mobile phone that, she booked a ticket for Kimbinyiko Bus Service. Regrettably, that was the last conversation between PW1 and the deceased. PW1 testified before the court that, he did not see her daughter again, until when he was called to identify her body at Temeke Hospital after being killed and dumped at Buza Sigara Relini. Emmanuel Francis Dimoso (PW2), an investigator, told the trial court that, the appellant was associated with the deceased's murder after the deceased's friend one Dorice mentioned the appellant as the deceased's boyfriend and that he was the one who informed her about the deceased's death. That, on 21/3/2019 being accompanied by PW4 they arrested the appellant at Buza Catholic Church where he went to pay his last respect to the deceased. PW2 further testified that, the appellant was interrogated and confessed to have killed the deceased and dumped her body where it was found. D/SGT Jovin (PW3), police officer stationed at Chang'ombe Police Station, told the court that on 18/3/2019 around 20:00 hours, he received a call from a local leader at Buza area informing him that he discovered a dead body in his jurisdiction. That they went to the scene and took the body of the deceased to Temeke Hospital. SP Kakwaya Jonas Kakwaya (PW4), the then Officer Commanding in Criminal Investigation Department (OC-CID) of Chang'ombe Police Station, testified to the effect that, he was accompanied by PW2 at Buza Roman Catholic Church where they arrested the appellant who was in company of his mother. He testified further that, the appellant in the presence of his mother, confessed to have kilted the deceased at Ungindoni Kigamboni and threw her body at Buza Sigara Relini. PW4 testified further that, he was among the Police officers who went to the accused's house and seized the vehicle that was used to carry the deceased's body to the place where she was found. Later, they also seized from the appellant's room some items belonged to the deceased. Another prosecution witness was Hamisi Mwishehe Kichaka (PW5), a local leader of Ungindoni Mjimwema, Kigamboni who testified to the effect that, he witnessed search conducted in the appellant's room on 22/3/2019. He further stated that, he signed a certificate of seizure (exhibit PI), which listed the seized items (exhibit P2). 3 WP 8904 CPL Roida (PW6) exhibit keeper testified to have received the seized items (exhibit P2) from PW4 on 23/3/2019, and handed the same to CpI. Samwel who took the same to the Government Chemist and returned it on 16/02/2020. Another prosecution witness was F 5818 D/SGT Samwel (PW7), a police officer, stationed at Temeke. He testified that, he recorded the statement of Sabrina from Kimbinyiko International Coach who issued a bus ticket to the deceased. He further testified that, on 08/10/2019 he took the seized items including the sandals, comb, black bag, jeans trouser, scarf and hand bag which were part of exhibit P2 to the Government Chemist for DNA profiling test with the sample drawn from the deceased's mother. PW7 stated further that, being an investigator of the case, he also collected the postmortem report (exhibit P3) from Muhimbili National Hospital. Kaijunga Triphon Brassy (PW8) a chemist from the office of the Government Chemist at Dar es Salaam, testified to have received exhibit P2 from PW7. He testified that he received sandals and labelled as specimen A, a comb B, a trouser and handkerchief were labelled as C and two handbags which were labelled as D. That, he also extracted the buccal swab from the deceased's mother which was labeled as E. PW8 further testified that, upon analysis, it was revealed that the sandals had genetic link to the buccal swab from the deceased's mother. It was his testimony that the buccal swab (E) was associated with the person who wore the sandals from exhibit P2. To substantiate his testimony, PW8 tendered the DNA profiling test (exhibit P4). E 6053 D/CPL Peter (PW9), a retired police officer testified to the effect that, on 21/3/2019 he recorded the cautioned statement of the appellant (exhibit P5). That upon informing his rights the appellant opted to have his father present during recording the cautioned statement. That in the said statement, the appellant confessed to have committed the offence of murdering Happiness Fredrick, the deceased. After closure of the prosecution case, the trial Judge found the appellant with the case to answer. In his defence, the appellant categorically denied to have killed the deceased. The appellant testified that, the deceased was not his girlfriend but a schoolmate at Jitegemee Secondary School from 2012 to 2015. It was the appellant's defence that, he was implicated in the case because he was a friend to the deceased. The appellant defended further that, he never confessed to have killed the deceased and the alleged items (exhibit P2) said to have been collected from his room, were brought by the police to the scene. Having heard the evidence from both sides, the trial court upon weighing the same, concluded that there was sufficient evidence which 5 showed that the appellant was guilty of murder as charged. Consequently, the appellant was accordingly convicted and sentenced to death by hanging. Aggrieved, the appellant appealed to the Court by lodging two memoranda of appeal. The original memorandum comprises seven grounds of appeal while a supplementary memorandum of appeal contained a sole ground. For the reason to be apparent soon, we opt not to reproduce the grounds predicated in the original memorandum of appeal. A sole ground of appeal featured in a supplementary memorandum of appeal is to the following effect: "That the trial Judge erred in law to allow the prosecution to call two additional witnesses and tender additional exhibits that were not committed without following the proper procedure as stipulated under the law, a procedural irregularity that prejudiced the appellant at his trial." When the appeal was called on for hearing, the appellant was represented by Messrs. Ibrahim Mbiu Bendera and Jeremia Mtobesya, learned advocates, while Mr. Job John Mrema, learned Principal State Attorney, Mr. Leonard Challo, learned Senior State Attorney; and Messrs. Erick Kamala and Cuthbert Mbolingi, both learned State Attorneys represented the respondent Republic. Before the hearing proceeded in earnest, Mr. Mtobesya prayed and was granted leave to present in Court the supplementary memorandum of appeal and the appellant's written submissions in support of the appeal. Basically, in the written submissions, the appellant opted to condense the seven grounds from the original memorandum of appeal into six grounds, namely; First, that the search and seizure was conducted contrary to the requirements of the law. Second, that the caution statement (exhibit P5) relied upon to convict the appellant, was illegally recorded and admitted as exhibit. Third, that the court failed to draw an adverse inference against the prosecution for failure to call the said Dorice who was the material witness. Fourth, that the doubts raised by the appellant in his defence evidence were not sufficiently evaluated, analyzed, determined and considered, the omission which resulted into a serious error or misdirection amounting to miscarriage of justice. Fifth, that the circumstantial evidence relied upon to convict the appellant was weak, insufficient and had a broken chain, thus unreliable to ground the appellant's conviction; and Six, that the case was not proved beyond reasonable doubt by the prosecution. When invited to amplify the grounds of appeal, having adopted the appellant's written submissions in support of the appeal, Mr. Mtobesya commenced by arguing on a sole ground featured in a supplementary memorandum of appeal. The counsel essentially faults the correctness of the procedure for admitting the additional witnesses and evidence. He argued that the trial Judge acted contrary to sections 263(2) and 308 of the Criminal Procedure Act, R.E. 2023 (hereinafter the CPA). He contended that, the law requires pre-trial disclosure of the evidence to be relied during trial. Also, the appellant had to know the substance of the evidence against him. In his view, the court had to consider if the notice was reasonable before granting the prayer. By referring to page 118 of the record of this appeal, Mr. Mtobesya argued that, the order of the court granting the prayer in respect of additional witnesses and evidence was in contravention with section 308 (3) of the CPA. Consequently, the learned counsel implored the Court to expunge the evidence which came from those witnesses as the same prejudiced the appellant. Responding to the above ground of appeal, Mr. Mrema submitted that, sections 263(2) and 308 of the CPA were duly complied with. He argued that, a notice was properly before the court. It was the learned Principal State Attorney's stance that, the trial Judge was right in exercising his powers when he granted leave to add additional witnesses and evidence as prayed. In regard to the first ground of appeal from the original memorandum of appeal, Mr. Mtobesya was of the view that, the search and seizure of exhibit P2 was illegal as the same was done without having a search warrant. s He contended that, there was no any emergence to waive obtaining a search warrant as the appellant was interrogated on 21/3/2019 and the police went to search his room on 22/3/2019. Due to the alleged legal shortcoming, the learned counsel urged us to expunge the seized exhibit from the record. To fortify his submission, the case of Shabani Ramadhani Abdala @ Kindamba v. Republic (Criminal Appeal No. 120 of 2021) [2023] TZCA 17352, was cited. In reply, Mr. Challo submitted that the search was legally conducted. He argued that the person who conducted search was a Police Superintendent by rank. By referring to the PGO 226 (4) (a), he argued that, according to his rank, he was not required to have a search warrant. Adding to that, Mr. Challo was of the view that, the search was conducted under emergency situation and further the appellant was not prejudiced in any way. Adding to what was submitted by Mr. Challo, Mr. Mrema submitted that according to PGO, the officer who conducted the search had a mandate. He argued that, the officer had powers to direct the subordinate officer under him to conduct search. He distinguished the case of Shabani Ramadhani Abdala @ Kindamba (supra) that in the said case, the search was conducted by a junior officer who had no mandate. Premising on what 9 they submitted, they urged the Court to dismiss this ground of appeal for being unmerited. On the second ground, the appellant faulted the trial Judge for convicting the appellant basing on his cautioned statement (exhibit P5). In his submission the appellant's counsel argued that, exhibit P5 was wrongly and unfairly recorded. He submitted further that, while the appellant certified that he wrote his cautioned statement by himself, PW9 certified to the effect that he is the one who recorded the appellant's statement. Further he contended that, both certifications did not show whether the recorded statement was read over to the appellant or the appellant read the statement by himself for corrections or alterations. Submitting further on this ground, Mr. Mtobesya by referring us to section 58 (2) of the CPA, argued that the caution statement procurement was suspicious; hence, deserves to be expunged. To support his submission, the learned counsel cited the case of Chamuriho Kirenge @ Chamuriho Julius v. Republic (Criminal Appeal No. 597 of 2017) [2022] TZCA 98. In reply, Mr. Chalo submitted that, the appellant's cautioned statement was recorded in compliance with sections 58 and 59 of the CPA. He argued that, the same was recorded within time and before recording, the appellant was offered all his rights. Arguing further, the learned State Attorney 10 submitted that, the appellant signed the verification clause by his own handwriting in presence of his father. Adding on this ground, Mr. Mrema submitted that, the appellant challenged the cautioned statement during defence, and not during the prosecution's case contrary to the law. According to him, the appellant's complaint on the cautioned statement amounted to an afterthought. Therefore, he urged the Court to dismiss this ground of appeal. Arguing in the alternative, Mr. Mrema stated that, even in absence of the cautioned statement, there was sufficient circumstantial evidence including appellant's oral confession and a report from the Government Chemist which connected the deceased with the items collected from the appellant's room. In regard to the third ground of appeal, the appellant faulted the trial court for failing to draw an adverse inference against the prosecution for failing to summon Dorice, as a material witness. In his written submissions, the appellant submitted that, the trial court wrongly convicted him basing on circumstantial evidence without drawing an adverse inference to the prosecution for failure to parade the said deceased's friend as it was alleged that Dorice is the one who led to the appellant's apprehension. Hence, in his view, Dorice was supposed to be one of the necessary witnesses so that she could be cross examined by the defence. That failure to call her prejudiced the appellant as he was denied an opportunity to cross examine her on what 11 she informed the Police Officers who went to the church and arrested him. To buttress his stance, he cited the case of Samwel Japhet Kahaya v. Republic, (Criminal Appeal No. 40 of 2017) [2020] TZCA 171. He further argued that, failure to summon Dorice casts a serious doubt in the prosecution case as they did not assign any sufficient reason for failure to summon her. In response, Mr. Mrema submitted that, the summoned prosecution witnesses were suffice to prove the case. That if Dorice was to be called, it could be duplication of evidence as her evidence was covered by other witnesses. In his view, Dorice was not a material witness. To buttress his argument the case of DPP v. Akida Abdallah Banda (Criminal Appeal No. 32 of 2020) [2023] TZCA 209, where it was held that a number of witnesses is irrelevant, was referred to. In regard to the fourth ground where the appellant faulted the trial Judge for entering conviction without considering the doubts raised by the defence, the appellant's counsel submitted that, the appellant vividly explained before the trial court that he got the information about the deceased's death from Rose and not Dorice. Also, he explained on how the alleged search and seizure was done in his room. In his view, the fact that prosecution admitted that they conducted search without warrant in the appellant's room, the court ought to have found that the defence evidence 12 had raised reasonable doubts which it is a clear indication that the prosecution has miserably failed to prove the case beyond reasonable doubt. To support his argument, he cited the case of Hussein Idd and Another v. Republic (1986) TLR 166. In reply Mr. Challo submitted that, in his defense the appellant did not manage to shake the credibility of prosecution's witnesses. Hence, he urged us to dismiss this ground for being devoid of merit. Moving to the fifth ground of appeal, the appellant submitted that he was wrongly convicted basing on circumstantial evidence which was weak, insufficient, broken chain and unreliable. He argued that, there was no cogent evidence to prove that the appellant was the last person to be seen with the deceased while alive. Further that, the deceased's Kimbinyiko bus ticket alleged to have been found in the appellant's room was not produced in court as exhibit Further, as the facts of the case indicated that the appellant drugged the deceased before he strangled her, the contended postmortem examination report (exhibit P3), did not indicate anything in that respect. Arguing further, Mr. Mtobesya submitted that, the ownership of purported items listed in exhibit PI was not established to the hilt. That the 13 deceased's father (PW1) did not identify the items to be of his late daughter. In his view, the omission casts doubt in the prosecution's case. Adding on this ground the learned counsel referred us to page 131 of the record of appeal, and argued that the record is silent on who handed exhibit P2 to PW6 at Kigamboni Police Station. He further submitted that, PW8 the Government Chemist testified that, he had the said exhibit for three months. However, it is not said who had kept those items and where they were kept. Premising on what he submitted, the learned counsel urged us to expunge exhibit P2 from the record as its chain was intolerably broken. To bolster his submission, the case of Joseph Thobias & Others v. Republic (Criminal Appeal No. 296 of 2019) [2023] TZCA105, was referred. Responding to the above complaint, starting with a chain of custody, the learned State Attorney argued that, the chain of custody was properly established. He contended that, the record of appeal at pages 138-145 portrays how the seized items from the appellant's room were handled. He referred us to the testimony of PW4 who conducted search on 22/9/2019 at the appellant's room. That on 23/3/2019 the seized items were recorded and witnessed by independent witness. That the items were handed to PW7 who labeled and kept them until 8/10/2019 where they were collected and brought to the Government Chemist for examination. That on 26/10/2019 the items were taken back by PW2 to the exhibit keeper Roida (PW6) who 14 kept them until when they were taken to court. The learned State Attorney distinguished the case of Joseph Thobias (supra) with the circumstances of this case. He stated that the former involved narcotic drugs. On who kept the exhibits for three months, Mr. Chailo submitted that, this complaint was not an issue during trial and the appellant did not cross examine a witness on that issue. By referring to the case of Nyerere Nyague v. Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 103, he stressed that, failure to cross examine was fatal. Basing on what they submitted, he prayed the Court to dismiss this ground of appeal for being meritless. On the sixth and last ground of appeal, the appellant complained that, he was convicted while the case against him was not proved beyond reasonable doubt. It was the appellant's submission that the prosecution is duty bound to prove not only the commission of the offence, but also to prove that the accused in question was the actual culprit. That in so doing, the prosecution must prove every fact in issue beyond reasonable doubt that the facts alleged existed. In reply Mr. Mrema submitted that, the charge was proved to the hilt. That the prosecution proved beyond reasonable doubt that, it was the appellant who committed the offence charged. 15 In his rejoinder Mr. Mtobesya reiterated his submission in chief and stressed that the trial Judge acted wrongly to convict the appellant while the charge was not proved to the required legal standard. Having revisited the grounds of appeal and heard the submissions made by the parties, the issue for determination is whether this appeal has merit. In determining this appeal, we shall adopt the sequence of submission made by the counsel, although we will determine the fourth, fifth and sixth grounds of appeal conjointly. To start with the sole ground featured in a supplementary memorandum of appeal, we have given due consideration to the parties rival submissions that, the issue for our determination is whether there was violation of section 289 of the CPA which is now section 308 of the Criminal Procedure Act, R.E. 2023. Section 289 provides thus: - 289.-(1) No witness whose statement or substance o f evidence was not read at committal proceedings shall be called by the prosecution at the trial unless the prosecution has given a reasonable notice in writing to the accused person or his advocate o f the intention to call such witness. 16 (2) The notice shall state the name and address o f the witness and the substance o f the evidence which he intends to give. (3) The court shall determine what notice is reasonable, regard being had to the time when and the circumstances under which the prosecution became acquainted with the nature o f the witness's evidence and determined to call him as a witness; but no such notice need be given if the prosecution first became aware o f the evidence which the witness would give on the date on which he is called." Reading the excerpt above, we agree with Mr. Mrema that, the trial Judge acted in compliance to section 289 of the CPA. It is demonstrated from the record of this appeal at page 118 that, on 13/6/2023 Ms. Mhina for the prosecution prayed for leave of the court to issue notice of additional witnesses under section 289 of the CPA. The learned State Attorney prayed to call additional witnesses namely, Kaijage T. Brassy of the Government Chemist Department, who conducted DNA test on the deceased's belongings and WP. 8904 CpI. Roida who kept the deceased's belongings. Mr. Ambeti who represented the appellant during trial, acknowledged receipt of the notice, statements of the intended witnesses and the copy of forensic profiling test report. Following the uncontested prayer, the trial Judge went on to grant leave and ordered: 17 "The notice o f additional list o f witnesses and exhibits is hereby received to form part o f record under section 289 o f the Criminal Procedure Act, Cap. 20, R.E. 2022. The prosecution is granted leave to call the said witnesses and tender the additional exhibits but in accordance with the law." As we observed herein above, we find that the trial Judge complied with the requirement of section 289 of the CPA, hence, we dismiss this ground of appeal for being unfounded. Now turning to the first ground of appeal on the legality of search and seizure of exhibit P2. Generally, the procedure for conducting search and seizure of the objects relating to a crime, are governed by the law. The CPA and the Police Genera! Orders (PGO) are the governing laws in our jurisdiction. Section 38 of the CPA provides: 38.-(1) Where a police officer in charge o f a police station is satisfied that there is reasonable ground for suspecting that there is in any building, vessel\ carriage, box, receptacle or place- (a) anything with respect to which an offence has been committed; (b) anything in respect o f which there are reasonable grounds to believe that it will afford evidence as to the commission o f an offence; 18 (c) anything in respect o f which there are reasonable grounds to beiieve that it is intended to be used for the purpose o f committing an offence, and the officer is satisfied that any delay would result in the removal or destruction o f that thing or would endanger life or property, he may search or issue a written authority to any police officer under him to search the building ; vessel, carriage, box, receptacle or place as the case may be," Equally Order 226 (1) of the PGO is very clear and illustrative that: 1. The entry and search o f premises shall only be effected, either: (a) on the authority o f a warrant o f search; or (b) in exercise o f specific powers conferred by law on certain Police Officers to enter and search without warrant (c) Under no circumstances may police enter private premises unless they either hold a warrant or are empowered to enter under specific authority contained in the various laws o f Tanzania." Likewise Order 226 (4)(a) of the PGO provides that: "The main legal provisions covering entry for the purpose o f search without a warrant are contained in Section 34 (1) o f the Police Force and Auxiliary 19 Services Act, Cap. 322 R.E 2002, as quoted hereunder: "Whenever a Police Officer not being lower in rank than an Assistant Inspector has reasonable grounds for believing that anything necessary o f or the purposes o f an investigation into any alleged offence which he is authorized to investigate may be found in any place within the limits o f any place or Police Station o f which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer after recording in writing the grounds o f his beliefand specifying in such writing so far as possible the thing for which search is to be made, any, notwithstanding the provisions of Section 38 o f the Criminal Procedure Act, Cap. 20 R.E. 2002, search or cause to be searched for such thing in any place within the limits of such police station". NOTE: "Reasonable grounds for believing"is a question for the Court to decide, having regard to all the circumstances on which the officer bases his belief." [Emphasis added.] Essentially, from the provisions of the above excerpt, it is clear that the law requires searches of any premise be with a search warrant or authorization. The law empowers a police officer in charge of a station to 20 issue a search warrant or authorize a search if there are reasonable grounds to suspect the presence of evidence related to an offence. The position under the PGO mirrors that of the Criminal Procedure Act. Both insisted that searches of an accused's premises without a warrant are permissible only in exceptional circumstances. The Court in Director of Public Prosecutions v. Doreen John Mlemba, (Criminal Appeal No. 359 of 2019) [2021] TZCA 482, insisted that: "In other words, all things being equal, for a search into private premises to be a lawful search, it must be conducted by either an officer in charge o f a police station or anotherpolice officer with a search warrant as per the provisions o f section 38 (1) o f the CPA and PGO No. 226 paragraphs 2(a) quoted above". All in ail, warrantless searches of premises are permitted only when there is an immediate risk of evidence being lost or destroyed and the situation is deemed serious and urgent enough to bypass obtaining a court order or warrant. Now turning to the instant appeal, it is not in dispute that the search was conducted without search warrant. PW4 the OC-CID, who was involved in search exercise admitted that fact. The issue then is whether there was any justified reason for conducting search without obtaining a search warrant. 21 While Mr. Mrema and Challo insisted that, there was an emergency situation which justified warrantless search, Mr. Mtobesya disputed such fact as in his view, there was no any emergence situation in this matter to warrant the police not to have a search warrant. On our part, having re evaluated the evidence on record especially what was testified by PW4, we do agree with the appellant's counsel that, there was no any emergency situation which made the search to be made without search warrant. None of the situations stated under section 38 of the CPA and Order 226 of the PGO existed in this case. There is no any evidence that, there was a situation deemed serious and urgent enough to bypass obtaining a court order or search warrant. Adding fuel on fire, PW4 told the court that, immediately after his arrest, while at the police station, the appellant confessed in the presence of her mother that, he killed the deceased who was his girlfriend. That the appellant voluntarily narrated the whole saga to PW4 immediately after being arrested and when he was recording his cautioned statement before PW9 in the presence of his father. Further, it is on record of this appeal that, the appellant's cautioned statement was recorded on 21/3/2019 while search and seizure was conducted the following day on 22/3/2019. Those being the facts, nothing suggests that there was an emergency search situation covered by section 42 of the CPA to justify evading from obtaining 22 a search warrant before going to the appellant's residence as there was nothing to fear that any delay would result in the removal or destruction of any evidence relating to the offence committed. In essence, the searching team had the knowledge of the intended search a day before and they had an ample time to prepare a search warrant. See for instance Ndima Kashinje @ Joseph v. Republic (Criminal Appeal No. 466 of 2017) [2021] TZCA 398. Premising on our findings above, we respond to the above issue in the negative that, there was no any justification for conducting search without having a search warrant. What was done was contrary to the law. Consequently, the search conducted by PW4 and his assistants leading to recovery of exhibits PI and P2 was illegal. Henceforth, the product of such illegal search falls to be illegally obtained evidence which could not be relied on conviction. In the upshot, we find the first ground of appeal in the original memorandum has merit. Therefore, we are inclined to agree with Mr. Mtobesya's submission and prayer to expunge exhibits PI and P2 from the prosecution's evidence, as we hereby do. Moving to a second ground of appeal, where the appellant faulted a trial Judge for relying on a cautioned statement which was recorded contrary 23 to the law; on our perusal on the record of appeal, we agree with the appellant that a cautioned statement was also the base of conviction by the trial Judge, Then the issue at this juncture is, whether the said cautioned statement was recorded in accordance with the law. It is evidenced from the record of this appeal that, the impugned cautioned statement was recorded under sections 53, 57, 58 and 131 of the CPA. Nevertheless, that cannot be possible as sections 57 and 58 of the CPA are two sections which meant to cater for different situations. See- Petro Sule & Others v. Republic (Criminal Appeal No. 475 of 2020) [2023] TZCA 17777 (25 October 2023). The appellant's complaint as indicated above is on the authenticity of exhibit P5 as it is not clear on who recorded it. The verification at page 180 of the record of this appeal shows that, it was the appellant who wrote his statement while a police officer (PW9) also certified that he recorded it. Equally, it is not shown whether after recording it, the document was read before the appellant as provided under section 57 (3) (a) of the CPA. For clarity we find it apposite to reproduce the certification as it appeared in exhibit P5 as hereunder: "Uthibitisho; mimi IDRISSA SALEHE MWANGOBOLA nathibitisha kuandika maeiezo yangu haya kwa hiyafi yangu mimi mwenyewe bila kushawishlwa na mtu yoyote au kupewa kitu chochote nimeyatoa kwa iyati yangu mwenyewe mbete ya baba mzazi SALEHE KASSIM MWANGOBOLA". "UTHIBIT7SH0: E6053 D/cpI Peter nathibitisha kuandika maelezo ya IDRISA SALEHE MWANGOBOLA kwa uaminifu mkubwa kwa kadiri ya ufahamu wangu na uelewa wangu chini ya K/F 58 cha CPA 1985 Cap . 20 (RE2002)" From the above illustrated legal shortcomings against exhibit P5, on the ambiguous statements on whether the same was recorded under sections 57 or 58 of the CPA or whether the same was recorded by the appellant or PW9, we also find the omission is fatal. This Court in its decision in the case Musa Mustapha Kusa & Another v. Republic which was referred in Fikiri Kalamji & Another v. Republic (Criminal Appeal No. 51 of 2010) [2011] TZCA 356, emphasizing on a compliance of sections 57 and 58 of the CPA, held that: "We should quickly point out that these elaborate provisions were not superfluously added to the Act. They had a specific purpose. Having been enacted after the inclusion o f the basic right o f equality before 25 the iaw, in our Constitution, they were purposely added as procedural guarantees to this right For this reason, therefore, police officers recording such interviews or recording suspects' cautioned statements under both sections 57 and 58 o f the Act, have an unavoidable statutory duty to comply fuiiy with these provisions, They cannot, at the risk of rendering the statement invalid, pick and choose which requirement to comply with and which ones to disregard. The conditions stipulated in these two sections are cumulative and the duty imposed is mandatory." Equally, having considered that section 57(3) of the CPA is imperatively couched, but there is no indication that, PW9 read the contents of exhibit P5 to the appellant so as to allow him to correct or alter the statement, we are inclined to agree with Mr. Mtobesya that a cautioned statement was improperly recorded and the violation is fatal hence vitiated the statement. We are mindful of our previous decision in the case of Christina Damianov. Republic, Criminal Appeal No. 178 of 2012 (unreported) which was cited in Juma Omary v. Republic (Criminal Appeal No. 568 of 2020) [2022] TZCA 798, where we held that non-compliance with the mandatory provisions of section 57 vitiates the cautioned statement hence the subject of being expunged. 26 Therefore, being guided by the position of the law in the above cited cases, we find merit on this ground of appeal. Consequently, we allow it and procced to expunge exhibit P5 from the record. In regard to the third ground where the appellant faulted the trial Judge for failure to draw adverse inference for the prosecution failure to summon Dorice, having heard the parties' submissions for and against this ground, the issue is whether Dorice was a material witness in this case. Generally, a material witness is a person who possesses crucial information or evidence that is relevant and significant to the determination of the facts in issue. That his / her testimony is essential for establishing key elements of the prosecution or defence case. In the case of George Jonas Lesilwa v. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269, a material witness was said to be; "...a materia / witness is the witness who can testify about matters having some logical connection with the consequential facts especially if few others, if any, know about these matters. (See Black’ s Law Dictionary 8th Ed. page 1634). Generally, the information the materia! witness possesses has a strong probative value and, very few, if any witness, possess the same information. It should be needless to say, at this juncture that, probative value is the probability o f evidence to reach its proof purpose o f the fact in issue." Having reminded ourselves on who qualify to be termed as a material witness, we proceed to determine if in the circumstance of this case Dorice was a material witness. Admittedly, in the appeal at hand, there was no any eye witness who saw the appellant when killing the deceased. How the appellant was implicated in this matter, PW2 informed the court that, they arrested him after being mentioned by Dorice, a deceased's friend. That Dorice told PW2 that the appellant was a deceased's boyfriend and he was the one informed her about the death. Going further, PW2 informed the court that it was Dorice whom he asked to convince the appellant to attend the burial ceremony and she successful convinced him. Therefore, from this piece of evidence, it clear that, it was Dorice who paved a way towards the arrest of the alleged assassin. That being the fact, therefore, in our view, she was a crucial witness in the circumstance of this case. As rightly argued by the appellant, it was necessary to summon Dorice so that, she could explain more on what was testified by PW2 including at what time she was informed about the death. Also, the appellant could have a chance to cross examine her on what she told PW2. Failure to summon Dorice was prejudicial to the appellant and even what was said by PW2 remains to be hearsay evidence which is inadmissible under the law. Since, 28 nothing was stated by the prosecution as a reason for not summoning her to testify, it is our firm view that, the trial court was supposed to draw adverse inference that her testimony could have not been in favour of the prosecution. See for instance Alfredy Kwezi @ Alfonce v. Republic (Criminal Appeal No. 216 of 2021) [2022] TZCA 355 and Lazaro Kalonga v. Republic (Criminal Appeal No. 348 of 2008) [2012] TZCA 201. That said, we find merit on this ground of appeal and we allow it. As to the fourth, fifth and sixth grounds of appeal, essentially, the appellant complained that the trial court failed to consider the doubt raised in his defence and that he was convicted on unreliable and insufficient circumstantial evidence. We find the two grounds of complaints centered on a point that prosecution's case was not proved to the hilt. It is undisputed that in the instant appeal there was no eye witness to the offence. The appellant conviction was founded on circumstantial evidence. For the court to ground conviction on circumstantial evidence, this Court emphasized in its various decisions that, circumstantial evidence must irresistibly lead to establishing the guilty of the appellant beyond reasonable doubt. See for instance -Yustine Robert v. Republic (Criminal Appeal No. 299 of 2020) [2024] TZCA 1004, Said Mrisho v. Republic (Criminal Appeal No. 252 of 2022) [2025] TZCA 756, Mathias Bundala v. Republic [2007] T.L.R. 53 and John Magula Ndongo v. Republic (Criminal Appeal No. 18 of 2004) [2005] TZCA 41. In the latter it was stated that: "In order for the court to ground conviction on circumstantiai evidence it must be satisfied that the inculpatory facts are inconsistent with the innocence o f the accused person and incapable o f any other reasonable hypothesis than that o f his guilt." As submitted by the appellant in his submission and amplified by Mr. Mtobesya of which we have no reason to repeat, it is undisputable fact that the appellant was not seen while killing. However, he was arrested after being mentioned by Dorice who neither saw him with the deceased on the alleged date of the incident nor saw him committing the offence. Nonetheless, it is on record that, the trial court convicted him by relying on the cautioned statement (exhibit P5) where it was alleged that the appellant confessed to commit the offence. Also, the trial Judge relied on exhibit P2, the items alleged to be owned by the deceased before her death which were alleged to have been found in the appellant's room during search. However, following the expungement of exhibits PI, P2 and P5, we find there remains no other irresistible circumstantial evidence to connect the appellant with the offence. Consequently, it leads us to the conclusion that the prosecution failed to prove the case against the appellant to the hilt. Premising on that analysis, we find the fourth, fifth and sixth grounds of appeal to have merit. 30 In upshot, premising on the above findings, where the prosecution established only one element of the offence that, the deceased died unnatural death but failed to prove beyond reasonable doubt that it is the appellant who killed the deceased one Happiness Fredrick, we find the appeal has merit and we allow it. Consequently, we quash the appellant's conviction and set aside the sentence. The appellant is to be released forthwith from custody unless lawfully held therein. DATED at DODOMA this 16th day of December, 2025. The Judgment delivered this 17th day of December, 2025 in the presence of Mr. Jeremia Mtobesya, learned counsel for the Appellant, Mr. Nassoro Katuga, learned Principal State Attorney for the Respondent/Republic both through Virtual Court and Mr. Magesa Mgeta, Coi ~ ipy of the original. M. C. LEVIRA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL