Samson Palingo vs Republic (Criminal Appeal No. 324 of 2021) [2023] TZCA 17617 (12 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: KWARIKO. J.A.. LEVIRA, 3.A. And KENTE. J.A.^ t CRIMINAL APPEAL NO. 324 OF 2021 SAMSON PALINGO..................................................................... APPELLANT VERSUS THE REPUBLIC ................................... ...................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Kongwa) fKalunde. J.) dated the 19th March, 2021 in Criminal Sessions Case No. 59 of 2017 JUDGMENT OF THE COURT 5th May, & 12th Septem ber, 2023 KENTE, J.A.: The appellant Samson Palingo appeared before the High Court of Tanzania (sitting at Kongwa) where he was charged with and subsequently convicted of murder of his brother-in-law one Simon Mashala on 13th December, 2016. The said murder incident is alleged to have occurred at a place called Ngonaholongo - Hombolo area within then Municipality of Dodoma. Upon his conviction, the appellant was sentenced to the mandatory death sentence. However, still believing that he is innocent and that his conviction and sentence were erroneous, he has preferred the present appeal. i

Briefly stated, the appellant's conviction was based on the prosecution evidence which was to the following effect. During the night hours of 13th December, 2016, the late Simon Mashala was home together with his wife one Mary Mashala (PW1). Due to very hot temperature in their house, they had opted to sleep outside. They then heard the appellant calling the deceased. PW1 recounted that, when she woke up, she saw the appellant who was then moving towards them while armed with a bow. After he came close to her, he allegedly told PW1 that he was looking for the deceased. As he moved forward and came close by the deceased, the appellant allegedly drew up an arrow and shot the deceased on his shoulder before he took to his heels. Frantic efforts to save the deceased by those who went to his rescue following an alarm raised by PW1, proved futile as he succumbed to death while they were stilt on the way rushing him to hospital. According to a report upon postmortem examination (exhibit PI), an opinion was formed that the cause of death was anemia which resulted from a deep penetrative wound inflicted on the deceased's right shoulder. After the report of the murder incident was made available to the Police at Hombolo, No. G 258 PW5 Detective Corporal Fassan Ha mis together with a pathologist who performed the postmortem on the deceased and some other police officers went to the scene of the crime.

Having conducted some preliminary investigations, which included the postmortem examination, the collection of an arrow which was used to shoot the deceased and PW5's drawing of a sketch map of the crime scene, PW5 told the trial court that, upon the team's return to the Police Station at Hombolo, he was told that the person who had committed the said murder had gone into hiding at Hombolo Bwawani. Upon receiving information regarding the appellant's whereabouts, the Officer Commanding Hombolo Police Station gave instructions to two police officers to go there and arrest him. PW5 recounted that, after the police tracked the appellant to his hideout and whisked him to the police station, he interviewed him and recorded his statement. Later on, he led him to the Justice of the Peace to make his extra-judicial statement. After conclusion of investigation, the appellant was sent to court and charged with murder as alluded to. In his sworn defence evidence, the appellant who identified himself as the deceased's brother-in-law, admitted to have unlawfully killed the deceased but he maintained that the killing was accidental as he did not intend to kill him. Elaborating, the appellant who was a solitary witness to his case told the trial court that, on the material day, he went to the deceased's home in the pursuit of his wife who had run away from home following some matrimonial misunderstandings. He went on narrating 3

that, after he arrived at the deceased's home and when he asked him if he knew the whereabouts of his wife, a question which apparently did not go down well with him, the deceased retorted that he was tired of resolving their never-ending matrimonial disputes. Before the appellant could find words to reply, the deceased in a combative gesture, allegedly armed with a long shaft bill-hook locally known as "hengo" followed the appellant thereby forcing him to act in self defence. The appellant recounted that, for fear of being slashed by the deceased, and using his hand, and not a bow as alleged by the prosecution witnesses, he jabbed the arrow into the deceased's shoulder before he took flight. Asked by the prosecuting learned State Attorney as to where he had gone after attacking the deceased, the appellant is on record as having told the trial court that, he did not go into hiding as alleged by the prosecution witnesses. He said that, of his own volition, he submitted himself to the Police at Hombolo. All in all, he was emphatic that he had no intention to kill the deceased and that all that he did, was geared towards defending himself against the deceased who had irrationally gone confrontational. On being challenged by the prosecution as to why he had gone to the deceased's home while strongly armed with a bow and arrow if at all he had no intention to kill him, the appellant was prompt to reply

that, he did so in order to safeguard himself against wild animals on the way which were prevalent and feared. Two of the three assessors who sat with the trial Judge, gave a somewhat ambigous opinion but, as far as returning a verdict is concerned, they finally came out with a single common denominator. Like the third assessor who had given an admirably succinct opinion, they returned a "guilty" verdict opining that, the deceased, was guilty of murder as the evidence shows that he had the requisite malice aforethought. For his part, the learned trial Judge was satisfied and he conclusively found that the prosecution had established beyond reasonable doubt that, the appellant had intentionally caused the death of the deceased. The above finding by the trial Judge was based on the evidence led by the prosecution and further on strength of the position taken by the now defunct East African Court of Appeal in the case of Rex v. Thomas s/o Ogoruto and Another (1945) 12 EACA where it was held that: "... Every person who inflicts on a living person an inevitable fatal injury with an intention to k ill or cause grievous harm is guiity o f m urder" Answering the question as to whether or not the appellant had formed the intention to kill or cause grievous harm while attacking the

deceased, the learned trial Judge had the following to say at page 113 of the record of appeal: looking a t the nature o f the weapon used, that is an arrow; considering the manner in which the offensive dangerous weapon was used against the victim■ , in that, excessive force was used to in fiict the fatai biow on the deceased by using a bow and arrow and hence, inflicting a serious injury that extended from the chest to the back side o f the deceased; given that the injury resuited into excessive biood ioss and hence death to the deceased, it is dear that the accused had a dear intention to either cause death or to do grievous harm to the deceased." Upon this brief peroration, the learned trial Judge was satisfied that the prosecution had managed to prove its case beyond reasonable doubt and he accordingly went on convicting the appellant as charged. Before us, the appellant who was represented by the Mr. Elias Machibya, learned advocate has come with eight grounds of appeal complaining thus:

1. The trial Judge erred in law and in fact by receiving the evidence of PW1, through a video conference without following the required procedure and practice; 6

2. The trial Judge erred both in law and in fact by admitting into evidence exhibit PI through the video conference against the lawful procedure;

3. The trial Judge erred in law and in fact by summing up to the assessors contrary to evidence, law and practice;

4. The trial Judge erred in law and in fact in finding that malice aforethought had been proved against the appellant;

5. The trial Judge erred in law and in fact by deciding that the appellant did not throw the arrow to the deceased with his hand a finding which is contrary to the evidence;

6. The trial Judge erred in law and in fact by not taking into account the fact that there was an exchange of words between the appellant and deceased prior to the appellant's spearing the deceased;

7. The trial Judge erred in law and in fact in deciding that the prosecution had proved its case beyond reasonable doubt; and

8. The trial Judge erred in law and in fact by not accepting the defence version that the appellant killed the deceased in the course of self defence. Moreover, immediately before the hearing of the appeal could commence in earnest, in terms of Rule 81 (1) of the Tanzania Court of

Appeal Rules, 2009, Mr. Machibya successfully prayed for the leave of the Court to argue an additional ground of appeal which faults the trial Judge for failure to consider the legality and propriety or otherwise of the committal proceedings. In support of the appeal and as regards the first and second grounds of appeal which Mr. Machibya combined and argued conjointly, it was contended that, there was no order by the trial court directing that it was going to hear the evidence of PW3 including the receiving of a postmortem examination report (exhibit PI) which he tendered through a video conferencing. Without elaborating as to how his client was prejudiced by the receiving of the evidence of PW3' by use of a video conferencing facility, Mr. Machibya contended generally that the whole process of receiving PW3's evidence was very unfair. Regarding the third ground of appeal which challenges the trial Judge's summing up to assessors allegedly contrary to the evidence on the record, the applicable law and practice, Mr. Machibya submitted in the first place that, the trial Judge did not refer the assessors who sat with him to the appellant's defence version that he did not shoot the deceased but rather he pierced him with an arrow using his hand. 8

Moreover, it was Mr. Machibya's contention that, the learned trial Judge did not impress upon the assessors that the appellant had hit the deceased in a single blow and further that, the trial Judge did not give any guidance to the assessors regarding the vulnerability of a human shoulder. Moving forward, the learned counsel challenged the trial Judge for allegedly not asking the assessors to give him their opinion with regards to the question which he had himself posed to them as to whether or not, it was common and acceptable for a man among the Wagogo community to move around while armed with a bow and arrows with no bad intentions. Mr. Machibya relied on the unreported cases of Ester Leonard Mchape v. Republic, Criminal Appeal No. 212 of 2017 and Omari Khalfan v. Republic, Criminal Appeal No. 107 of 2015 to underscore the responsibility with which the trial Judge is addled to direct the assessors sitting with him on vital points the failure of which renders the trial a nullity. Regarding the fourth, fifth and sixth grounds of appeal which Mr. Machibya combined and argued together, he contended that, had the learned trial Judge taken into account that the appellant was just looking for his wife who had run away from home and that in so doing, the appellant had gone first to his parents' home before he went to the deceased's home, he would have found that indeed the appellant had no

intention to kill. Such a finding according to Machibya, would negate malice aforethought on the part of the appellant which is an indispensable ingredient of the offence of murder. As to the eight ground of appeal, Mr. Machibya contended generally that, given the evidence on the record, the trial Judge ought to have found that the appellant killed the deceased while exercising his basic right of self defence. Reverting to the seventh ground of appeal, counsel for the appellant was very brief. He submitted that, having found that a shoulder is not a vulnerable part of the human body, the trial Judge was bound to find that the appellant had not formed the intention to kill. Reverting to the additional ground of appeal in which the trial court is faulted for not checking the committal proceedings to make sure if they were properly conducted, Mr. Machibya was very brief. He submitted that the record of proceedings does not show whether or not the statements of the intended prosecution witnesses were read out and the list of the intended exhibits was not furnished. The learned counsel charged that, it was procedurally wrong for the trial court to admit into evidence the exhibits which were not listed during the committal proceedings. To support his argument Mr. Machibya referred us to our earlier decisions in the cases of Michael Maige v. Republic, Criminal Appeal 10

No. 222 of 2020 and Pascal Mwinuka v. Republic, Criminal Appeal N. 258 of 218 (both unreported). Based on the above -arguments, the learned counsel asked us to allow the appeal and quash the appellant's conviction for murder. During his turn, Mr. Salum Matibu, learned State Attorney who appeared along with Ms. Patricia Mkina also a learned State Attorney to represent the respondent Republic, opposed the appeal and supported the findings and conclusions by the learned trial Judge. He submitted that, during the committal proceedings, the committing magistrate had indicated that the relevant provisions of the applicable law were duly complied with and that, the cases of Pascal Mwinuka and Michael Maige (supra) to which we were referred by Mr. Machibya were distinguishable from the instant case. He added that, even if the impugned exhibits were expunged from the record, the remaining evidence was sufficient to ground a conviction. Tine learned State Attorney made a caution that, should this Court remit the matter to the committal court with a like hood that it will result into a retrial then we will have to also direct as to whether or not the retrial will be with the aid of the assessors. With regard to the summing up to the assessors, the learned State Attorney was firm that they were properly guided by the trial Judge who i i

left no stone unturned in his summing up notes. It was thus Mr. Matibu's conclusion that, the complaint by the appellant on that aspect had no basis both in law and in fact. After posing for breath, the learned State Attorney went on submitting in respect of the hotly contested eighth ground of appeal on which we now move, that, there was no evidence to show that the appellant had acted in self defence. Referring to the evidence of PW1, the learned State Attorney contended that the deceased was not armed and that in any way, he did not pose any danger to the appellant such as seeking to attack him. With regard to the appellant's argument that a shoulder is not a vulnerable part in the human body, Mr. Matibu was of the different view. He gave a sententious argument that, a shoulder must be somehow vulnerable because it shares a boarder with a heart. Regarding the first and second grounds of appeal to which it is now opportune to revert, the learned State Attorney submitted in penultimate that, he had a reason to believe that the prosecution's prayer to have the evidence of PW3 taken by video conferencing was impliedly sustained by the trial court. Mr. Matibu assigned one reason in support of his belief. He argued that, otherwise the then defence counsel Mr. Nyabiri who is a seasoned advocate would have resisted or at least expressed his 12

reservations if he thought that the taking of PW3's evidence by video conferencing was likely to prejudice the appellant. Lastly, Mr. Matibu submitted in respect of the appellant's general complaint that, the case against him was not proved beyond reasonable doubt that, the prosecution had led sufficient evidence to establish malice aforethought on the part of the appellant as attested to by the nature of the weapon he used to attack the deceased and the part of the body on which the wound was inflicted. We intend to begin our discussion by resolving the issue on whether or not the committal proceedings were conducted in violation of the mandatory requirements of the law as alleged by the appellant. On this, we have in mind the complaint by the appellant that the record of appeal does not show whether or not the statements of the intended prosecution witnesses were read out during the committal proceedings, and that the exhibits intended to be relied on by the prosecution during the trial were not listed during the committal proceedings. To that end, while referring us to the unreported cases of Michael Maige and Pascal Mwinuka (supra), Mr. Machibya contended that, the mandatory provisions of section 246 (2) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (hereinafter the CPA) were not complied with by the committal magistrate. 13

Submitting in rebuttal, Mr. Matibu was of the quite different view. He submitted in the first place that, the provisions of section 246 (2) of the CPA were duly complied with and that the two cases cited by Mr. Machibya were distinguishable from the present case. In the second place as already stated, the learned State Attorney submitted that, even if the unlisted exhibits were expunged from the evidence, the remaining evidence was enough to support a conviction. To refresh our minds, the above - cited law provides that: "(2) Upon appearance o f the accused person before it, the subordinate Court shaii read and expiain or cause to be read to the accused person the inform ation brought against him as weii as the statem ents or documents containing the substance o f the evidence o f witnesses who the Director o f Public Prosecution intends to call a t the trial". We have carefully gone through the record of appeal, considered the submissions by either counsel, together with the law and the authorities cited and researched by the Court. It is needless to say that, save for the Primary Courts, trials in the High Court and the courts subordinate to it are governed by the provisions of the CPA which, among other things, provides for the requirement to conduct committal proceedings where, as in this case, an accused person charged with a 14

serious criminal offence such as homicide, is committed to face trial in the High Court. We begin by stating in a nutshell that, as a matter of practice, committal proceedings entail the process of the committal court reading or causing the information to be read over to the accused person for which the accused person is not allowed to enter any plea. That is followed by the reading out of the statements of the intended prosecution witnesses, specifying them together with the documents or items intended to be tendered by the prosecution as exhibits during the trial. For his part, the accused person has a right to also mention his intended witnesses at this stage, if he so wishes. We have reviewed the record in the instant case and have not seen any indication of the mandatory requirements of the law having been violated by the committal court. Other than the fact that the learned Resident Magistrate of the committal court adopted a style of recording the proceedings which is remarkable for its brevity, it is not true as alleged by counsel for the appellant that the committing court did not read over or cause the statements of the intended crown witnesses to be read over to the appellant or list the witnesses' names and the intended exhibits. Such a state is borne out from the proceedings on pages 24 to 26 of the record of appeal. Moreover, as the matters stood then and today, the law 15

in 2018 did not bar a committing magistrate to abbreviate words like "complied with" to "c/w" respectively which is a common practice among the magistrates, presumbly to save space or time when recording proceedings, if in one's discretion it is fit to do so. For that reason, the committing magistrate cannot be faulted for doing what was not prohibited by law. That said, we find no merit in the additional ground of appeal which we hereby dismiss. With regard to the first and second grounds of appeal which are closely related as to be interwoven with each other, the appellant is complaining generally without elaborating that, the trial court had violated the lawful procedure in receiving the evidence of Flosea Luzabiko Lotto (PW3). In view of the above mentioned complaint, the only question for our inquiry is whether or not, in 2017 there was any special procedure required to be followed by the trial court when receiving evidence through a video link which was however, violated by the trial court. Notably, PW3, a pathologist who performed the postmortem examination on the deceased, was at the time of the appellant's trial, unable to travel to Dodoma as he was then on medical treatment in Dar es Salaam. For that matter, following a request by the prosecution which was not opposed by the appellant, the evidence of PW3 was received through a video conferencing. 16

It must be noted that, despite being a relatively recent form of procedure in our law, there was nothing and Mr. Machibya has suggested none which was manifestly illegal as to outlaw the receiving of PW3's evidence through a video link. While we are mindful that, as a general rule, the use of science and technology in judicial proceedings ought to be supported by legislation and that, in 2017 enabling legislation or regulations to direct the manner in which such evidence could be adduced or admitted was not yet in place, what the learned trial Judge did was simply in response to the need for the courts to keep pace with advancements in science and technology in the administration of substantive justice. So long as the appellant and his advocate were present when the evidence of PW3 was received through a video conferencing, that evidence was received in the presence of the appellant and would therefore meet the requirements of the law. In other words, receiving of such evidence was in accordance with and not in violation of the procedure established by taw. The first and second grounds of appeal are thus dismissed for lack of merit. We will next address the third ground of appeal in which the trial judge is faulted for: 17

1. Not referring the assessors who sat with him to the appellant's defence version that he did not shoot but rather he pierced the deceased with an arrow using his hand;
2. Not impressing upon the assessors that the appellant had hit the deceased in a single blow;
3. Not giving guidance regarding the vulnerability or otherwise of a human shoulder; and
4. Not asking the assessors to give him their opinion on the question as to whether it was common for a man among the Wagogo community to move around with a bow and arrows as the appellant did, without bad intentions. With due respect to Mr. Machibya, we think his understanding of the summing up to the assessors in a criminal trial by a judge or magistrate, is incorrect in at least one way. While in summing up, a judge is expected to review the evidence at the end of the case and give direction to the assessors regarding the crucial points of law arising from the matter, there is no checklist where all the things required to be done by the trial judge have to be ticked off. Having gone through the record of appeal, we have not been able to single out any serious omission by the learned trial Judge which can be properly said to amount to a misdirection or non-direction to the assessors. 18

As it will be noted at once, in his summing up notes, the trial Judge had almost left no stone unturned. Considering the most fundamental question as to whether or not the appellant had formed the intention to cause death or grievous bodily harm when he attacked the deceased, the learned trial Judge had the following to say at page 76 - 77 of the record of appeal, as a guidance to the assessors who assisted him. "Ladies and Gentleman assessors, an attacker is a human being, so he would usually not declare his intentionw hether to cause death or grievous bodily harm. However, courts consider the following factor to establish whether or not the attacker or accused had an intention o f m alice aforethought: (1) Type and size o f weapon if any, used in the attack; (2) Amount o f force applied in the assault, (3) Part or parts o f the body the blows were directed a t or inflicted on; (4) Number o f blows, depending upon the facts o f each case; (5) Kind o f injuries inflicted; (6) Attacker utterances if any made before, during or after the killing; and 19

(7) Conduct o f the attacker before and after the killing". Regarding the question as to whether it was common among the Wagogo community for a man to move around while armed with a bow and arrows without having any bad intention, the trial Judge is on record as having guided the assessors at page 88 of the record in the following terms, thus: "Ladies and Gentleman assessors, as judges o f facts, you are presumed to be aware o f the culture and traditions o f the area in which the court is situate. That said, I would also wish fo r you to consider and comment on whether it is typical within the Gogo tribe for someone to move around with a bow and arrow at the time as the accused d id ." Going by the learned Judge's summing up which we dare say was both intelligible and all inclusive, we are left with no doubt that his workmanship on that aspect is almost unassailable. We must point out at this juncture that, it is just hair splitting to pick out some pieces of evidence as Mr. Machibya did and claim that the trial Judge did not bring them to the attention of the assessors during the summing up. On our part therefore, we have not found any merit in the appellant's complaint in the third ground of appeal. As correctly argued 20

by Mr. Matibu, the appellant's complaint on that aspect are bereft of merit both in law and in fact and, in view of the above, we would hold as we have already found that the said ground of appeal has no merit and we accordingly dismiss it. Regarding the fourth, fifth, sixth and eighth grounds of appeal which turn upon the question as to whether or not, in killing the deceased, the appellant had acted with malice aforethought, it is trite law that, the prosecution was bound to prove the existence of malice by using the facts of this case which however, had to be proved beyond reasonable doubt. In support of the appeal, Mr. Machibya contended in respect of the fourth, fifth and sixth and eighth grounds which he combined and argued conjointly that, there was sufficient evidence to show that the appellant had gone to the deceased's home to look for his wife who had run away following a matrimonial squabble. The learned counsel therefore argued that, the testimony of PW1 who told the trial court that on arrival at their home, the appellant went straight to attack the deceased made the case of the prosecution unbelievable and as such, the trial court ought to have found that the appellant had no intention to kill the deceased but rather he had acted in self defence after the deceased had irrationally gone hostile to him. 21

As to the finding by the trial Judge that the appellant must have formed the intention to kill or cause grievous harm as he went to the appellant's home while armed with a bow and arrows, Mr. Machibya faulted the decision of the High Court for not determining a cruciai question as to whether or not it was unusual for a man in the Wagogo tribe to move around in public places while armed with a bow and arrows without harbouring a bad intention. Still on the same point, the appellant's counsel submitted that having found that a shoulder is not a vulnerable part of a human body, the trial Judge ought to have found that indeed the appellant had no intention to kill or cause grievous harm to the deceased. Thus, Mr. Machibya asked the Court to take into account his arguments and finally come to the conclusion that the learned trial Judge ought to have found on the basis of the evidence on the record that, the offence of murder was not proved beyond doubt as the appellant had acted in self defence. For his part, Mr. Matibu refuted the submissions made by the appellant's counsel that the appellant had caused the death of the deceased in the course of self defence. The learned State Attorney submitted that, there was no reason whatsoever to justify the appellant's attack of the deceased as the evidence of PW1 shows that the deceased was not armed nor did he seek to attack the appellant. 22

Mr. Matibu further submitted that, ail the evidence on the record was considered by the trial Judge and it led him to the conclusion that the appellant had the intention to kill the deceased or cause him grievous harm. In particular, the learned State Attorned referred to the testimony of PW1, who testified that, having arrived at their home, the appellant went on attacking the deceased by shooting him with an arrow which is a lethal weapon without being provoked or threatened by the deceased. Given the nature of the wound which was inflicted on the deceased, Mr. Matibu stood firm that the appellant must have used excessive force as to cause what was described by the pathologist as already indicated, as a deep penetrative wound on the right shoulder. In supporting the foregoing arguments, just like the learned trial Judge, the learned State Attorney relied on this Court's decision in the case of Enock Kipela v. Republic, Criminal Appeal No. 150 of 150 of 1994 (unreported). As can be gleaned from the impugned decision of the lower court, as far as the specific question of malice afore thought is concerned, the evidence which was accepted as true by the trial Judge is that of PW1 whose testimony provided the context within which the murder on the deceased occurred. However, we note that, there are some important aspects in the testimony of PW1 which seem to have escaped the attention of the trial 23

Judge and which, if given due weight they would have probably introduced some reasonable doubt in the prosecution case. For instance, whereas, it was contended on behalf of the prosecution that the appellant had armed himself for no apparent reason when he went around looking for his wife who had fled to an unknown place, PWl's evidence appears to sort of support the appellant's defence version that he did so in order to protect himself against wild animals which was a common phenomenon in their locality. We are supported in this view by the testimony of PW1 appearing at page 46 of the record of appeal where she told the trial court in her testimony in-chief among other things, that, she was able to identify the appellant relying on moonlight and flames caused by a huge fire which they had built to scare animals as they were sleeping outside. Another disquieting feature in the testimony of PW1 appears at page 47 of the record of appeal. In the circumstances suggesting that indeed the deceased got into an argument with the appellant as to necessitate the appellant to act in self defence, PW1 is on record as having told the trial court, during cross-examination, thus: "I do not know if my husband was involved with Samson's wife. Samson said that his wife should be released" 24

It is evident from the above-quoted excerpts that: One, the appellant's defense version regarding the reason for his moving around while armed with a bow and arrows was not only uncontroverted but also it was supported by PW1, and two, the possibility of there having been threats from the deceased as to result into a confrontation as alleged by the appellant, remained largely uncontested. Now, assuming as it appears from the evidence that there was a confrontation between the appellant and deceased, the law has always been that in such circumstances, it is not safe to infer malice aforethought on the part of the accused person. On this point, we are guided by our own decision in the case of Mathayo Mwalimu and Masai Lengwa v. Republic [2009] TLR 271 where we held that, in such a situation it is safer to ground a conviction of manslaughter instead of murder. In view of our analysis above, we find that the prosecution had failed to discharge its statutory duty to prove malice aforethought beyond reasonable doubt. Overall, we find that, the offence of murder of which the appellant was convicted was not proved to the required standard. In the ultimate event, we quash the appellant's conviction for murder and set aside the sentence of death by hanging meted out on him. Instead, we substitute it with a conviction of a lesser offence of 25

manslaughter contrary to section 195 of the Penal Code, Chapter 16 of the Revised Laws. For purpose of completeness, we accordingly sentence the appellant to a ten (10) years' imprisonment term reckoned from the date of the appellant's conviction and sentence by the trial court. DATED at DAR ES SALAAM this 11th day of September, 2023. M. A. KWARIKO JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 12th day of September, 2023 in the presence of the appellant in person - Linked via video Conference from High Court Dodoma and Ms. Patricia Mkina, learned State Attorney for the 26