Ally Ramadhani vs Republic (Criminal Appeal No. 57 of 2020) [2024] TZCA 962 (3 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KOROSSO, J.A., KAIRO, J.A. And. KHAMIS. J.A.^ CRIMINAL APPEAL NO. 57 OF 2020 ALLY RAMADHANI........... ...............................................APPELLANT VERSUS THE REPUBLIC....................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) ( Mwenempazi, J.1 dated the 6th day of December, 2019 in Criminal Case Session No. 20 of 2017 JUDGMENT OF THE COURT 2n dJuly & J d October, 2024 KAIRO. J.A.: The appellant, Ally Ramadhani was charged with the offence of murder in the High Court of Arusha contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2019 (the Penal Code). In the particulars of offence, the prosecution alleged that, on 5th day of March, 2015 at Olasiti area within the Region of Arusha, the appellant murdered one, Loveness d/o Maliaki (the deceased). The background to this appeal started on 5th March, 2015 when the deceased went to school but never came back home after studies, as usual. It was the prosecution case that, the appellant and Maria Kilongo (PW6), the mother of the deceased knew each other as they hailed from

the same place in Singida and at some point in time, they were neighbours in Arusha. The appellant, later shifted and lived close to Jackline Yohana Daudi, (PW2), a relative of the deceased. The deceased and PW2 were pupils studying at neighbouring schools and used to go and return from school together with other pupils. On the fateful day, the deceased went to school as usual, little did she know that, she will never come back home alive! It was the testimony of PW2 that, on that date, the appellant was seen roaming around their school riding a bicycle several times. During recess time, PW2 met the deceased who told her that, the appellant bought her some french fries (chips). In the evening, when the deceased, PW2 and other pupils were returning home from school, they met the appellant on the way. He gave them TZS. 200.00 to share among themselves, and left. Soon thereafter, he rode back and told the pupils that, their sister, Iman (deceased sister) had sent some money via Mpesa through his mobile phone and asked one of them to accompany him to the Mpesa agent to withdraw the money and take it to the person he referred to, as grandma. The pupils refused and requested him to call sister Iman. The appellant then dragged the deceased and carried her on his bicycle. He told other pupils to wait for her at the check point "kwa Mrombo" area, where he would drop her after withdrawing the money.

PW2 and other pupils waited for the deceased in vain and decided to go back to their homes. However, PW2 passed at the home of the deceased and told PW6 what had transpired. A search for the deceased and the appellant was mounted, but in vain. PW6 thus reported to Mbauda police station that, her child was abducted by the appellant. On 6th March, 2015, PW6 went to the deceased's school but did not find her. Her class teacher, Penina Japhet Kaaya (PW8) stated that, the deceased did not attend school on that day. Later on, PW6 found the appellant at his workplace and questioned him on her daughter's whereabouts, but the appellant denied to have taken her. PW6 informed the police and the appellant was arrested for abduction of the deceased. On 9th March, 2015, a dead body of a girl child of about 10 years old wearing school uniform was found under the bed in one of the rooms in the house of Mzee Herry Ally. The room was occupied by Raphia Herry Ally (PW9), a daughter of Mzee Herry Ally. It was the bad/foul smell coming from PW9's room which prompted the neighbours to inform Moses Michael (PW3), a ten-cell leader of Olasiti Street about it, leading to discovery of the deceased body. PW3 accessed the room through a spare key given to him by Sabitina Agripa (PW4), a friend of PW9. Upon opening the room, PW3 found the body of the deceased hidden under the bed. PW3 reported the bad news to the street chairman of Oloresho, Olasiti Ward, one Simon

Kivuyo (PW5) who called the police. Upon arrival, the police took the deceased body to the Mount Meru Hospital. The body was later identified by PW6 to be that of her daughter who went missing on 5th March, 2015. Following the body discovery, the accusations against the appellant changed to murder. On 9th March, 2015 the appellant's cautioned statement was recorded at the police station where he confessed to have killed the deceased by suffocating and strangling her using the veil (exhibit P3) belonging to PW9 who was away on safari. The cautioned statement was admitted at the trial court as exhibit P2. The appellant was on 13th March, 2015 taken to Prince Gidion (PW 10), the Justice of Peace where he recorded an extra judicial statement which was admitted as exhibit P6. The autopsy on the body was conducted by Doctor Eliezer Mkamba (now deceased) who authored the Postmortem Examination Report and recorded a witness statement which were admitted as exhibits P5 (a) & (b) respectively. In his defence, the appellant disassociated himself from the accusations and categorically denied to have recorded any confession statement. He claimed to be illiterate. Upon trial and evaluation of the evidence, the trial Judge found the appellant guilty of murder as charged. He was consequently, sentenced to suffer the death penalty. Aggrieved by the said decision, the appellant approached the Court

armed with three sets of memoranda of appeal lodged on 28th November, 2022, 27th June, 2024 and 1s t July, 2024. At the hearing of the appeal, Mr. Kapimpiti Mgalula, learned counsel and Ms. Chema Maswi, learned Senior State Attorney represented the appellant and the respondent Republic respectively. From the outset, the learned State Senior Attorney was dear that she was supporting the conviction and the sentence pronounced by the trial court. When invited to amplify on the grounds of appeal, Mr. Mgalula abandoned the memorandum of appeal lodged on 27th June, 2024 and opted to argue grounds of appeal number 2, 3 and 14 in the supplementary memorandum of appeal lodged on 28th November, 2022 and abandoned other grounds. The learned counsel also informed us that, he will address all grounds in the supplementary memorandum of appeal lodged on 1s t July, 2024, totaling to five grounds of appeal renumbered as follows: "1. That, the trial court's judgment is invalid for not containing the sentence and punishment contrary to the mandatory requirement of section 312 (2) of the Criminal Procedure Act, [Cap 20 R.E. 2022] (the CPA). 2. That, the cautioned statement was made contrary to the mandatory provision o f section 50 (1) (a) and (b) o f the CPA

3. That, the conviction was reached basing on the statement (exhibit P2) which was tendered contrary to the procedure when admitting exhibits.
4. That, the trial Judge erred in iaw and fact in not finding that the purported extra judiciai statement (exhibit P6) was acted upon to ground the appellant's conviction while it was procedurally and wrongly admitted in evidence as hereunder; i) The extra judicial statement does not show whether the appellant was informed that, the statement would be used as evidence against him. ii) Exhibit P6 was wrongly recorded as it did not follow the procedure.
5. That, the trial Judge erred in law and in fact by holding that, the prosecution side have proved the case beyond reasonable doubt" We wish to state from the outset that, we shall determine each ground immediately after the arguments by the learned counsel for the parties. However before doing so, it is crucial to state that, this being the first appeal, we have a duty to re-evaluate the entire evidence on record and subject it to a critical scrutiny and if warranted, arrive at our own conclusion of the fact. [See: D.R. Pandya vs Republic [1957] EA 336

and Demeritus John @ Kajuli & 3 Others vs Republic, Criminal Appeal No.155 of 2013 (unreported)]. Starting with the first ground, Mr. Mgalula contended that, the judgment of the trial court is invalid for contravening the provisions of section 312 (2) of the CPA. In elaboration, the learned counsel submitted that, after finding the appellant guilty of the offence charged with, the trial court did not sentence him, the omission which he argued to be fatal and rendered the judgment invalid. He referred to the Court the judgment of the trial court appearing at pages 165 to 175 of the record of appeal. He insisted that, at the referred page 175 which is the last page of the judgment, the court ended up convicting the appellant without pronouncing the corresponding sentence. In reply, Ms. Maswi refuted the contention that the appellant was not sentenced after being convicted. It was her submission that, though at page 175 of the record of appeal seemed to end without showing the sentence, however, at page 141 of the record of appeal where the proceedings on the judgment date appears, clearly displays that the appellant was sentenced to suffer death by hanging after he was found guilty of murder. She therefore argued that, the contention that the judgment was in contravention of the provision of section 312 (2) of the CPA was not correct.

Rejoining, Mr. Mgaiula was emphatic that, despite there being the sentencing at page 141 of the record of appeal, but it is the mandatory requirement under the cited provision that, the sentence be shown in the judgment itself. He therefore maintained that, the omission was incurable and showing the sentence at page 141 of the record did not salvage the situation. We have gone through the pages referred to by both counsel for the parties. The contention is whether or not the appellant was sentenced after he was convicted. It is true that, page 175 of the record of appeal does not show the sentence pronounced after conviction. However, as correctly pointed out by the learned State Attorney, at page 141 of the record of appeal which shows the coram and the proceedings on the judgment date, clearly shows that, the appellant was sentenced to suffer death by hanging. It is noteworthy that, the sentence was pronounced during the delivery of the judgment on 6th December, 2019. In his argument, Mr. Mgaiula did not dispute that page 141 of the record of appeal shows that the appellant was sentenced. However, he contended that, the provision requires the sentence to be shown in the judgment concerned to which we agree and hasten to add that, the proceedings of 6th December, 2019 which is the judgment date, display that the sentence was pronounced and properly recorded. It is our view

that, since the judgment is part of the proceedings, the omission is not fatal as the said sentence was clearly pronounced to the appellant on the judgment date. As such, we find the argument by Mr. Mgalula, unfounded. That apart, the warrant of sentence of imprisonment (Crim. Form No. 10) in respect of the appellant from the trial court to the prison in our view, also confirms that, the appellant was sentenced to suffer death by hanging. We let the excerpt which appears at page 176 of the record of appeal speak for itself for verification: "IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY OF ARUSHA] AT ARUSHA CRIMINAL SESSION NO 20 OF 2017 (Originating from PI NO. 10/2015 in the Resident Magistrate Court of Arusha) REPUBLIC VERSUS ALLY RAMADHANI TO THE SUPERINTENDENT OF THE PRISON ARUSHA WHEREAS ALLY RAMADHANI on the 6th Day of December, 2019 was convicted before me with the offence o f Murder c/s 196 o f the Pena! Code Cap. 16 R.E 2002 and was sentenced to SUFFER DEATH BY HANGING. This is to authorize and require you, the said Superintendent to receive the said ALL Y RAMADHANI into your custody in the said prison, together with this warrant, and there carry the aforesaid sentence into execution according to taw.

GIVEN under my hand and Seal of this Court this 6th day of December, 2019. Sgrf'. Basing on the above evidence, we are convinced that, the appellant was properly sentenced after conviction. Thus, the argument that section 312 (2) was contravened is unfounded. We dismiss it. Next for discussion is the complaint in the second ground of appeal that, the cautioned statement (exhibit P2), was recorded beyond the four hours stipulated under the law after the appellant's restraint, thus contravenes the mandatory provisions of section 50 (1) (a) and (b) of the CPA. In clarification, Mr. Mgalula submitted that, the appellant was arrested on 6th March, 2015 but his statement was taken on 9th March, 2015. The learned counsel therefore beseeched the Court to find the ground with merit and expunge exhibit P2 from the record for contravening the said provision. Responding, Ms. Maswi refuted Mr. Mgalula's argument on that aspect. It was her argument that, the count of four hours within which to record the statement of the suspect is in respect of the offence charged with and not any other offence. In elaboration, Ms. Maswi submitted that, the appellant was suspected of abducting the deceased who disappeared on 5th March, 2015 when he was apprehended on 6th March, 2015, while

the statement at issue was in respect of the offence of murder which occurred on 9th March, 2015 when the dead body of the deceased was found. She submitted that, PW3 and PW5 testified to have discovered the body around 11.00 am. That following the discovery, the offence the appellant was being accused of, changed from abduction to murder and thereafter his statement was recorded from 2.49 pm to 3.43 pm on the same date, that is 9th March, 2015. She went on to argue that, in those circumstances, four hours had not lapsed yet and the argument is misinterpretation of section 50 (1) of the CPA. After hearing the rival arguments, the issue for our determination in this ground is whether or not the cautioned statement of the appellant was recorded outside the time prescribed under section 50 (1) (a) and (b) of the CPA, and thus, contravened the said provision. It is not disputed that the appellant was arrested on 6th March, 2015 and that his statement was recorded on 9th March, 2015 at 2.49 pm. It was the position of Mr. Mgalula that, the recording was done outside the four hours from when the appellant was arrested as stipulated by law. However, Ms. Maswi is of the view that, the four hours prescribed is in respect of the offence the accused stands charged with and not any other offence, thus the appellant misconstrued the provision. Our starting point in addressing this ground is section 50 (1) (a) and

(b). It states: "50 (1) (a) For the purpose o f this Act, the period for interviewing a person who is in restraint in respect of an offence is- (a) subject to paragraph (b), the basic period available for interviewing the person , that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence; (b) If the basic period available for interviewing the person is extended under section 51, the basic period so extended" [Emphasis added] It is on record that, the appellant was arrested for abduction of the deceased on 6th March, 2015. However, the offence was changed from abduction to murder on 9th March, 2015 following the discovery of the body of the deceased. The record also reveals that, the dead body was found by PW3 and PW5 around 11.00 am on the fateful date and the information relayed to the police station. Since the appellant was still under restraint in relation to abduction accusations, the police then proceeded to record his statement in respect of the murder offence for which he was being accused of. Applying the cited provisions to the facts at hand, we have observed that, the arrest of the appellant on 6th March, 2015 was in respect of abduction. However, the statement in question is in respect of the charge

of murder, which according to record, occurred on 9th March, 2015 around 11.00 am when the deceased body was found. In our view, that is when the appellant was considered to be under restraint in respect of the offence he was charged with, and upon which his statement was recorded. As such, the period of four hours started to count from the time when the body of the deceased was discovered and a charge of murder levelled against him. We are therefore in agreement with the submission of Ms. Maswi that, the provision was misconceived in the circumstance of this case. But that apart, even if there was contravention as suggested which we find not to exist, the Court had previously observed that, it is not always correct to take that, every contravention of the provisions in question automatically leads to the exclusion of the evidence in question as seemed to be suggested by the appellant's learned counsel [see: Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010 TZCA 103 (21 May 2012). Rather, the balancing of the public interest and that of the accused are to be looked at, as well. In our view, the trial court had properly discharged that duty during the trial within a trial and there is nothing to fault it even if the statement would have been taken beyond the time allowed which, as alluded to, was not. Basing on that analysis, we found the second ground meritless and proceed to dismiss it.

The complaint in the third ground was that, the tendering of exhibit P2 flouted the procedure for being read before admitting it. The learned counsel referred the Court to page 56 of the record of appeal for verification. We should not be detained by the said argument, as upon revisiting the original record of appeal we observed that, the omission was just a typing error as the original record shows clearly that, the exhibit at issue was admitted first in court before reading it. Both parties were accordingly advised and shown the original record for verification. Thus, the ground is superfluous. Next for discussion is the fourth ground which is centered on the complaint that the extra judicial statement (exhibit P6) was flawed. Elaborating the said flaws, the learned counsel pointed them out to be, one; it does not show whether the appellant was informed of his rights, specifically that the statement would be used as evidence against him in court, two; that the appellant was neither asked where he slept before coming to record the extra judicial statement, three; the statement was not read over to him after being recorded, four; the justice of peace did not inspect the appellant's body to ascertain whether or not there was any fresh injuries, wounds or swelling before recording the statement, and five; nowhere in the statement had the appellant confessed committing

the offence on 5th March, 2015 as indicated in the charge. He therefore concluded that, exhibit P6 was recorded without following up the guidelines stipulated by the Chief Justice, the omission which rendered it invalid and prayed the Court to expunge it from the record. The learned State Attorney readily conceded that the recording of exhibit P6 contravened the instruction provided under the Chief Justice Guide to Justice of Peace due to the pointed-out shortcomings. She cited the case of Mpemba Mashenene vs Republic, Criminal Appeal No. 557 of 2015 TZCA 568(11 July 2018) TANZLII to back up her submission. She also prayed the Court to expunge exhibit P6 from the record. We have closely examined the exhibit P6 under discussion. Indeed, it was not indicated in the statement whether the appellant was asked where he slept before coming to confess, nor was he informed that the statement would be used as evidence against him during trial. In those circumstances, the consent purported to have been given by the appellant is rendered questionable. Likewise, it was not indicated if the statement was read over to him after recording to verify its correctness. It is our firm view that, the pointed-out omissions among others are fundamental which invalidated the statement and rendered it inadmissible as evidence for being taken in breach of the Chief Justice Instructions to the Justices of Peace published in 1964 in a book titled "A Guide for Justice of Peace" as

correctly submitted by the learned State Attorney. [See: Mpemba Mashenene vs Republic (supra), Joseph Kafuka & Another vs Republic, Criminal Appeal No. 87 of 2014 and Japhet Thadei Msigwa vs Republic, Criminal Appeal No. 367 of 2008 (both unreported)]. In Japhet Thadei Msigwa (supra), the Court observed as follows: "So, when Justices of Peace are recording confessions o f persons in the custody o f the police, they must follow the Chief Justice's Instructions to the letter. The section is couched in mandatory terms. Before the Justice o f the Peace records the confession o f such person , he must make sure that all the eight steps enumerated therein are observed. Justice o f the Piece ought to observe , interaiia, the following; (i) The time and date of his arrest (ii) The place he was arrested (iii) The place he slept before the date he was brought to him. (iv) Whether any person by threator promise or violence has persuaded him to give the statement. (v) Whether he really wishes to make the statement on his own free will. (vi) That if he makes a statement, the same may

be used as evidence against hirrf '. Basing on the authorities above, it is true that exhibit P6 does not fall within the ambit explained in the Chief Justice's instruction, thus inadmissible in evidence. The remedy is to expunge it from the record as we hereby do. The appellant in the fifth ground complains that, the case was not proved beyond reasonable doubt. In elaboration, Mr. Mgalula contended that, the case hinged on circumstantial evidence as no one has seen the appellant killing the deceased. It was his contention that the circumstantial evidence relied on by the trial court to enter conviction was not conclusive as it does not irresistibly lead to the guilt of the appellant. Expounding, the learned counsel submitted that, the room where the body of the deceased was allegedly found was also accessible to other persons including PW3 and PW8 who had the spare key. Thus, the evidence by PW3 that the body was found in the said room on the mentioned date is doubtful. The learned counsel further argued that, another doubt concerns the bicycle which was alleged to have been used to carry the deceased as the appellant was not found in possession of the said bicycle. Instead, it was PW7 with whom the bicycle was found. He also contended that, the evidence of PW2 who testified on the abduction of the deceased by the appellant was not corroborated by other 17

pupils with whom she stated to be together going back home after school time. Refuting the appellant's argument, Ms. Maswi argued that, in a murder case like the one at hand, the prosecution has the obligation to prove; one, the appellant was the offender; two, the death of the deceased was not natural; and three, the killing was with malice. It was her argument that all of the three ingredients have been proved beyond reasonable doubt by the prosecution. She went on to argue that, exhibit P2 explains in detail what transpired from the moment the appellant abducted the deceased, how he took her to the killing scene, as well as how and why he effected the killing together with what the appellant did to cover up the offence committed. She contended that, the statement thus, sufficiently proved all of the three aspects above listed to the required standard. Besides, she contended, the details were corroborated by the prosecution witnesses who testified. It was her argument that, the best witness in a criminal trial is an accused who confesses his guilt as the appellant did in the case at hand. She referred us to the case of Raphael Pius @ Gwesso & Another vs Republic, Criminal Appeal No. 377 of 2021 [2024] TZCA 282 (21 June 2024) TANZLII to bolster her argument. In proving that the offender was the appellant, the learned State Attorney argued that, the testimony of PW2 was clear that, the appellant

was the last person to be seen with the deceased and went with her on a bicycle which was identified by the words written in the flap. She argued that, it is the legal principle of law that, the last person to be seen with the deceased is the offender unless he/she gives plausible explanation to the contrary. To back up her argument she cited the case of Lukas Daudi Wage vs Republic, Criminal Appeal No. 555 of 2021 [2024] TZCA 398 (5 June2024). It was the argument of the learned State Attorney that, the appellant did not give any. Supporting her position that the deceased death was not natural, Ms. Maswi started by fronting a prayer which was not opposed by Mr. Mgalula that, exhibits P5 (a) and (b) (statement by Dr. Eliezer Mkamba who conducted postmortem on the deceased and report on postmortem) be expunged from the record of appeal for being admitted in contravention of the provisions of section 34 (B) of the Law of Evidence Act, Cap 6 R.E. 2022. The prayer was accordingly granted by the Court. Nevertheless, she argued, it is not mandatory that, the deceased cause of death has to be verified by the postmortem report. She referred the Court to its former decision in the case of Crospery Ntagalinda @Koro vs Republic, Criminal Appeal No. 312 of 2015 [2016] TZCA 661 (22 February 2016) to fortify her argument. She further argued that, both PW1 and PW6 who witnessed the postmortem examination of the deceased body testified that she was strangled which assertion was expounded in exhibit P2. 19

On the presence of malice aforethought, the learned State Attorney argued that, the appellant's conduct after killing the deceased should draw an inference of malice aforethought on his part. She elaborated that, the manner he implemented the offence, his act of hiding the body under the bed after killing, wiping out the blood and went away with the blood stained clothes so as to hide the evidence, confirms pre-meditation of the offence committed. In rejoinder, Mr. Mgalula argued that, it is only the doctor who conducted the postmortem examination of the deceased body who can prove the cause of death in the absence of exhibits 5 (a) and (b), short of it, the assertion that the deceased was strangled resulting to her death, stands unsubstantiated. As regards the cited case of Lukas Daudi Wage (supra), the learned counsel argued that, there were eight witnesses who testified to have seen the appellant with the deceased therein and corroborated each other, while in the case at hand, no other witness claimed to have seen the deceased with the appellant apart from PW2, thus two cases are distinguishable. Indeed, it is true that, there was no eye witness who testified to have seen the appellant committing the offence charged. As such, we are in agreement with Mr. Mgalula that, the conviction of the appellant was based

on circumstantial evidence which was founded in two folds: one, the appellant's cautioned statement (exhibit P2) into which he explained in detail his involvement in the killing of the deceased; two, being the last person to be seen with the deceased while alive. Mr. Mgalula is of the general opinion that, the circumstantial evidence which was relied upon to ground a conviction against the appellant was not credible and does not lead to the guiltiness of the appellant. However, the learned State Attorney had conflicting views. It is a settled jurisprudence that, in order for circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilty. [See: Bahati Makeja vs Republic, Criminal Appeal No. 118 of 2016 [2011] TZCA 31 (28 February 2011) TAN2LII and Jimmy Runangaza vs Republic, Criminal Appeal No. 159 'B' of 2017 [2018] TZCA 188 (27 August 2018)]. In other words, circumstantial evidence has to prove beyond reasonable doubt the factors that, the appellant was the offender; that the death of the deceased was not natural; and that the killing was with malice aforethought as correctly submitted by Ms. Maswi. Through case law, the Court has established the following tests which must be satisfied before relying on circumstantial evidence to mount conviction: (l) The facts upon which guilty is to be affirmed must be firmly

established beyond reasonable doubt; (2) The evidence should unerringly be pointing towards the guilt o f the accused; (3) AH the pieces o f evidence should form a chain leading to only one conclusion that the crime was committed by the accused and no one else; (4) The evidence must be incapable o f explanation o f any other hypothesis than that o f the guilt o f the accused and should be inconsistent with his innocence. Basing on the above tests, the issue for our determination in this ground therefore is whether the evidence as per exhibit P2 and the principle on the last person to be seen with the deceased met the four listed factors. It was testified by PW2 that, the appellant grabbed the deceased on 5th March, 2015 while in the company of other pupils going home after their studies and went away with her on a bicycle. When seen next time, she was no more, and her death was unnatural as testified by PW1 and PW6 who were present when the autopsy of her body was conducted and revealed that, she was strangled. The law is settled that, the last person to be seen with the deceased alive is presumed responsible for the killing in the absence of a plausible explanation as regards the circumstances leading to the death. [See:

Mathayo Mwalimu & Another vs Republic, Criminal Appeal No. 147 of 2008 [2009 TZCA 53 (2 November 2009) TANZLII]. It is noteworthy that the appellant did not cross examine PW2 on this aspect, the omission which legally amounts to an acceptance to what was stated. [See: Nyerere Nyague (supra)]. Besides, the appellant's cautioned statement (exhibit P2) into which he narrated how he met the deceased and went away with her on a bicycle to her death ordeal, was corroborated by PW2's testimony. This also rebut Mr. Mgalula's argument that, PW2's testimony was not corroborated. That apart, section 143 of the Law of Evidence Act, Cap 6 R.E. 2022 and the case of Yohana Msigwa vs Republic (1990) T.L.R. 148 provides that no particular number of witnesses is required for the proof of any fact. We are aware that the appellant denied to know the deceased and to have recorded the statement, but in our view, PW2 was coherent and consistent throughout her testimony. Thus, her credence and reliability were undaunted. In Issa Reji Mafita vs Republic, Criminal Appeal No. 337 of 2020 [2021] TZCA 404 924 August 2021 TANZLII, the Court in determining the credibility of a witness observed as follows: "The credibility o f the witness can also be determined in two other ways, one when assessing the coherence o f the testimony o f that witness.

Two, when the testimony is considered in relation to the evidence of other witnesses inciuding that o f the accused" [emphasis added]. Basing on the analysis above, we are convinced that, it was the appellant who was the last person to be seen with the deceased alive and his evasive denial did not shake the prosecution case on that aspect. As such, it was the appellant who undoubtedly killed the deceased. It follows therefore, and as correctly submitted by Ms. Maswi, the death of the deceased was not natural and was with malice aforethought as eloquently explained in exhibit P2. Further to that, we are in agreement with Ms. Maswi's submission that the death of the deceased was not natural and was with malice aforethought. Again, the appellant, through exhibit P2, tells eloquently his involvement in the killing of the deceased. He explained where and how the appellant met the deceased when she was going home in the company of other pupils, which details were also echoed by PW2. The appellant through exhibit P2 explained that he had to use a screwdriver to open the room into which he wanted to quench his lust and raped the deceased as he had no key and the owner of the room (PW9) who was also his lover, had travelled. When testifying, PW4 and PW9 gave the similar story thus, corroborated the appellant's statement on this aspect. Further to that,

exhibit P2 also stipulated on how the appellant in a move to hide the offence of rape, decided to kill the deceased by suffocating and later strangled the deceased by using PW9's veil (exhibit P3). The veil was verified by PW9 to belong to her, and the assertion that that the deceased was strangled was testified by PW1 and PW6. Therefore, the intention to cause the deceased's death, his narration on the manner he brutally implemented his plans proves malice aforethought on the party of the appellant under the provisions of section 200 of the Penal Code. It is a settled legal position that, the best evidence in a criminal trial is a voluntary confession from the accused himself as the Court observed in Paulo Maduka & Others vs Republic, Criminal Appeal No. 110 of 2007 [2009] TZCA 69 (28 October 2009) TANZLII. That, apart, even his conduct after killing the deceased was geared to covered-up the offence by hiding the deceased body under the bed where it was found by PW3 and PW5. Besides, the act of going away with the clothes used to wipe the blood oozed after the killing, also confirmed the appellant's malice aforethought [see: Enock Kipela vs Republic, Criminal Appeal No. 150 of 1994 (unreported)]. It is therefore our settled view and as correctly found by the trial court that, the incriminating evidence in exhibit P2, together with the fact that the appellant was the last person to be seen with the deceased alive, 25

provides irresistible inference that, the appellant killed the deceased with malice aforethought. Again, we find the fifth ground unmerited and dismiss In fine, the appeal is dismissed in its entirety. DATED at DAR ES SALAAM this 2n d day of October, 2024. W. B. KOROSSO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 3r d day of October, 2024 in the presence of Mr. Gasper Jackob, learned Counsel who took brief for Mr. Kapimpiti Mgalula, learned Counsel for the Appellant and Mr. Stanslaus Halawe, learned State Attorney for the Respondent/Republic both linked through Video Conference from Arusha High Court, is hereby certified as a true copy of the original. it. \£\ A. L. KALEGEYA )* jDEPUTY REGISTRAR s/ COURT OF APPEAL