NASORO BAKARI NASORO SESSSION

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL SESSION CASE NO. 57 OF 2023 REPUBLIC VERSUS NASORO BAKARI NASORO JUDGMENT 22nd May & 14th June, 2024. S.M. KULITA, J. The accused person, one Nasoro Bakari Nasoro stands charged with the offence of Murder, contrary to Sections 196 and 197 of the Penal Code [Cap 16 RE 2022]. It is alleged by the prosecution that, on 5th March, 2023, at Kahama Municipality in Kahama District within Shinyanga Region, the accused person murdered one Peter Charles. Facts of the case as presented by the prosecution which gave rise to this trial are as follows; that the victim was engaging himself in a “bodaboda” business, ie. transportation of Passengers by using a Motorcycle. He had been using a Motorcycle with Registration No. MC 670 DND make SUNLG, belonging to Kiyumbi Thomas Ngusa, at a consideration of Tshs. 10,000/= per day. 1 That, on 5th March, 2023 the victim went missing. Due to that, owner of the motorcycle decided to report the matter at the police station, suspecting that the victim might have stolen it. Luckily, the said owner had connected the motorcycle with GPS. The GPS showed that the motorcycle was at Sikonge in Tabora Region. That, the motorcycle owner decided to go to Sikonge, where he found his motorcycle in a certain farm. Before he took it, the same was grabbed by the accused person who switched it on and started running with it. In cooperation with other motorcyclists, they managed to apprehend him. They thus took the accused person to the nearest police station. On 8th March, 2023 the victim’s body was recovered at Busuke in Kahama. Upon interrogation, the accused person denied of being responsible with the said murder. The post mortem investigation revealed that, the victim died due to the head injury. Upon full investigation, the accused person was linked with the said murder. He was thus arraigned to court for murdering Peter Charles. When the information of murder was read over to the accused person during the Plea taking and Preliminary Hearing, he pleaded not guilty thereto. Further, on 21st May, 2024 when the case came up for 2 trial, the said information for murder was reminded to the accused person who maintained his plea of not guilty. In discharging the duty of proving the charge against the accused person, the prosecution side summoned seven witnesses and tendered five exhibits. Evidence of the prosecution can be summarized as follows: E. 9651 Sgt Leopord testified as PW1. His testimony is to the effect that, he is a Police Officer at Tutuwo Police Station in Sikonge within Tabora Region. He went on stating that, on 8th March, 2023 while at the station, five people who had apprehended the Accused with a motorcycle arrived. They told him that, they had apprehended the accused as he had stolen that motorcycle. PW1 further stated that, he had to seize the said motorcycle and filled a Seizure Certificate. He then took the accused person together with exhibits to Sikonge Police Station. PW1 prayed to tender the said Seizure Certificate and the Motorcycle as exhibits. They were admitted as Exhibits P1 and P2 respectively. He lastly stated that, later on, he came to learn that, the said motorcycle had connection with murder incident committed by the accused person. When cross examined, PW1 stated that, while interrogated the accused person stated that, he was given the said motorcycle by his friend namely Saidi. 3 Kiyumbi Thomas Ngusa testified as PW2. His testimony is to the effect that, he lives at Kahama and that he is engaged in a motorcycle riding business (Bodaboda). He said the victim was a Ridder for his motorcycle. He said that the victim/deceased went missing since 6th March, 2023. That led him to report the matter at the police station, thinking that the victim might have stolen the motorcycle. As the motorcycle was connected to GPS, he resorted into checking it. The result showed that, the motorcycle was at Sikonge in Tabora Region. PW2 stated that, he decided to go to Tabora in search of it. On 8th March, 2023 while with other motorcyclists, they found the said motorcycle parked in a certain tobacco farm. They decided to surround the farm. Suddenly, the accused person grabbed the motorcycle, switched it on and started running with it. He said further that, they ran after the Accused and managed to apprehend him, following the fall down of the said motorcycle. He said that they took the accused person to the police station together with the said motorcycle. To prove that, the said motorcycle is his, PW2 tendered the motorcycle registration card and the purchasing receipt. They were received and admitted to court as Exhibits P3 and P4 respectively. PW2 went ahead stating that, he later on came to learn that, the one whom he had given his motorcycle for bodaboda bussiness is dead. 4 When cross-examined PW2 stated that, the motorcycle card bears the name of the motorcycle supplier. Another witness for Prosecution, one Simon Joseph Mbata (PW3) testified that he lives at Tutuwe in Sikonge, within Tabora Region. He added that, he is a Bodaboda Rider by occupation. He went further stating that, on 8th March, 2023 at 1100 hours, he was approached by Kiyumbi Thomas Ngusa (PW2) who wanted to reach the place where his motorcycle GPS was directing. He said that, he, together with other Bodaboda Riders, accompanied him to somewhere Mole at the tobacco farm. While approaching it, they saw a red colored motorcycle parked. He added that, suddenly they saw the accused person hurriedly switching on the said motorcycle and ran away. PW3 stated that, they ran after him till when they apprehended and took him to the police station. PW3 successfully identified the motorcycle by pointing its color being red. He also identified the certificate of seizure which bears his signature and signature of the accused person. He further pointed the Accused person in the dock as the one whom they had apprehended with the said motorcycle. Abdallah Salum Simba (PW4) testified that he is a Doctor at Kahama Municipal Hospital. He stated that, with the identification help of the victim’s brother, one Adam Peter, he conducted a post mortem 5 examination on the victim’s body on 9th March, 2023. He added that, the examination revealed that, the victim’s body had a wound on his head and a cut wound on the left part of the stomach. PW4 then tendered the Post Mortem Report and the same was admitted as exhibit P5. Hussein Issa Mabala who testified as PW5 stated that, he is a Bodaboda Rider whose Centre of business is Mungula in Kahama. PW5 went on stating that, the victim and accused person were his business mates who used to park their motorcycles at the same business Centre. He said that, the last time for him to see the victim and the accused person was 5th March 2023. The witness identified the accused person in the dock as Nasoro Bakari Nasoro. PW6 one Mohamed Shaban testified that he is a Chairman for Bodaboda Transporters at Mungula Centre in Kahama. He testified to have known both the victim and the accused person being his fellow motorcyclists who used to park at the same Centre. He added that, the victim went missing since the 6th day of March, 2023. They thus decided to report the matter at Kahama Police Station. PW6 stated that, it was on 8th March, 2023 when he came to know that the victim was dead. F. 4074 D/Sgt Peter testified as PW7. His testimony is to the effect that he is among the Police Officers from Kahama Police Station who visited a place where the deceased’s body was found lying. It was at the 6 area between Busoka and Malunda wards in Kahama Municipality. He stated that the body was discovered by Village Office Attendant. He said that, at the scene, there was no any material thing that could be connected with the murder. They thus drew a sketch plan of the scene and took the deceased’s body to mortuary. PW7 went on stating that on the 8th day of March, 2023 he got the information from the deceased’s brother one Adam Charles that, he had identified the deceased’s body at mortuary being of his young brother, Peter Charles, who was earlier reported at the Police Station to have stolen a motorcycle. PW7 further stated that, on the same day he got the information from PW2 (Kiyumbi Thomas Ngusa), holder of the stolen motorcycle, that he had managed to arrest the accused person with the stolen motorcycle at Sikonge in Tabora Region. Following that information, PW7 traveled to Sikonge. Thereat he recorded the witnesses’ statements concerning the arrest of the accused person who by that time was at Sikonge Police Station. He also collected the motorcycle in question, seizure certificates and the accused person himself to Kahama Police Station. PW7 managed to identify the accused person in the dock and the motorcycle which he had taken from Sikonge to Kahama Police Station. 7 On these seven witnesses as I said earlier, the prosecution case got closed. In terms of the provision of section 293(2) of the Criminal Procedure Act [Cap 20 RE 2022] the accused person was found to have a case to answer. After being addressed in terms of section 293(3) of the Criminal Procedure Act the accused person opted to testify alone on oath. The Accused Person, Nasoro Bakari Nasoro testified as DW1. His testimony is to the effect that, on 7th March, 2023, somebody Saidi went to his home place with the motorcycle which is new. He stated to have asked him on the owner of it. DW1 stated that, Saidi told him that, it is his. On that note, the Accused opted to borrow it as he wanted to go to his tobacco farm. He was actually given and went thereto. DW1 said that on his way back, he met with five people who stopped him and asked for the owner of the motorcycle. He told them that the owner is Saidi. DW1 said that, he then decided to take them to the owner whom they did not find. He was then told that the motorcycle was a stolen property. He was thus taken to Tutuwe Police Station. From there he was taken to Sikonge Police Station, after which, to Kahama Police Station in Shinyanga Region, where he was connected with the murder of Peter Charles. 8 As for the allegation that he did kill the deceased, DW1 disputed it. He stated that he does not even know the victim and that he has never been a Bodaboda Rider at Kahama. He thus denied to get involved in killing the victim. The Accused Person had no witness to call, hence, that was marked the end of both parties’ testimonies. In view of the above testimonies, the following issues call for determination: - 1. Whether the victim met unnatural death (if yes), 2. Whether the accused person is responsible for the death of the victim (if yes), 3. Whether the accused person, with intention (malice aforethought), killed the victim. Concerning the first issue, whether the victim met unnatural death, it is not in dispute from both sides’ testimonies, that Peter Charles is dead. According to the Post Mortem Report which has been admitted to court as Exhibit P5, the cause of death of the victim is severe head injury. The admitted Post Mortem Report shows that, the deceased’s head and abdomen were found with injuries. The evidence shows further that, the victim’s body was found lying outside at the border premise 9 between the two wards namely Busoka and Malunda. Such circumstances prove that, the victim met unnatural death. As there is no evidence disapproving this fact, I see no need of dwelling much on this issue. It is thus positively answered that the deceased, Peter Charles, met unnatural death. Concerning the second issue, whether the accused person is responsible for the killing of the victim, prosecution side depends only on circumstantial evidence. In this judgment I will endeavor into discussing it so as to see its impact on the case. I am alive with the principle of law concerning circumstantial evidence. The law provides that, for a conviction to stem on circumstantial evidence, it must be the evidence that leads to no other conclusion than only one that, the accused person committed the offence. See, Juma Salum Singano v. Republic, Criminal Appeal No. 172 of 2008, CAT at DSM in which it was held; “We agree with both learned counsels that to sustain a conviction on circumstantial evidence the evidence must irresistibly point to the guilt of the appellant” 10 I am also alive with the holding made in the case of ALLY BAKARI & PILI BAKARI V. R [1992] TLR 10 (CA) that; “Where the evidence against the accused is wholly circumstantial, the facts from which an inference adverse to the accused to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be drawn” The above quoted principle of law calls for all facts which lead to an inference that the accused is guilty, must be proved beyond reasonable doubt. As such, it is a right time now to verify as to whether these conditions have been met in this case. In this case, the evidence from both parties shows no dispute on the following premises; one, it is not in dispute that till the time when death met him, Peter Charles (deceased) was riding for business at Kahama, the motorcycle with registration No. MC 670 DND Make SANLG which is belongs to Kiyumbi Thomas Ngusa (PW2), two, there is no dispute that, Peter Charles went missing on 6th March, 2023, that followed a report made to the Police Station by the owner of the said motorcycle (PW2), three, there is no dispute that disappearance of the 11 victim went together with the disappearance of the said motorcycle, four, there is no dispute that, the victim, Peter Charles was later on found dead, the death that suggests to be unnaturally met, five, it is not in dispute that, on the 8th March, 2023 the accused person herein was found in possession of the said motorcycle with Registration No. MC 670 DND make SANLG. As the said motorcycle which was in possession of the victim (deceased) got lost on 6th March, 2023 and recovered on 8th March, 2023 with the accused person, just two days thereafter, then, the accused person is required to give a reasonable account on how the same got into his possession. Otherwise, he will be taken as a thief and/or any other offence connected with it. In the case of ALLY BAKARI & PILI BAKARI (supra) the Court of Appeal held that; "If upon a charge of murder, it is proved that the deceased person was murdered in a house and that the murderer stole goods from the house, and that the accused was a few days afterwards found in possession of the stolen goods, that raises a presumption that the accused was the murderer and 12 unless he can give a reasonable account of the manner in which he became possessed of the goods, he would be convicted of the offence." The above quotation provides the doctrine of recent possession which is also a scenario in the matter at hand. For the said doctrine to be invoked, the following must be proved; First, that the stolen property must be found with the suspect; Secondly, the property must be positively identified to be that of the complainant; Thirdly, that the property was recently stolen from the complainant; and lastly, that the subject matter must constitute the subject of the charge. See also the cases of JOSEPH MKUMBWA & SAMSON MWAKAGENDA V. R, Criminal Appeal No. 94 of 2007, CAT at Mbeya; and ABDI JULIUS @ MOLLEL NYANGUSI AND ANOTHER V. R, Criminal Appeal No. 107 of 2009, CAT at Arusha. As all the enlisted conditions shown above have been met, I have no hesitation to apply the said doctrine of recent possession. In giving explanation as to how the said motorcycle came into his possession, the accused person testified that, he had just borrowed it from one Saidi with a need of visiting his tobacco farm. His explanation went on showing that, he took the persons who had arrested him to 13 Saidi’s residence, but they did not find him. At this juncture, the crucial issue to be determined is whether the accused person’s explanation is reasonable to exonerate him from this charge. In determining this issue, I have considered a number of circumstances that transpired in this case. On them, my mind got settled that, the accused person’s explanation on how the said motorcycle got into his possession is unreasonable. The following are the factors for the said finding; One, if the accused person had borrowed the said motorcycle from Saidi, obvious they could have fixed a place to return it. In his testimony, the accused person never mentioned that place. His story that he took those people who apprehended him to Saidi’s resident is not verified. This is because the accused person failed to even mention a person whom after reaching that place, they got to ask him/her, as to the where about of Saidi. Two, had the accused person borrowed the said motorcycle from his friend, Saidi, he could have not started running with the said motorcycle soon after he had seen people surrounding him at the tobacco farm. This evidence was testified by not only the holder of the Motorcycle (PW2) who participated in the arrest of the Accused, but also 14 PW3 who is the Bodaboda Rider at their home place. Further, this PW3 is not seen to have any interest with this case, which means that what he has testified is nothing but the truth. It follows therefore that, the accused person wanted to run with the motorcycle as he had fear of what he had done in connection with the said motorcycle at Kahama. This evidence that the accused started running before he was apprehended has never been cross-examined by the accused person when PW2 and PW3 were testifying in court. This is crucial/material evidence which connects the accused person with the offence, he ought to have shaken that testimony in the cross-examination, if at all it was not true. Otherwise, it is taken as an implied admission. The accused person is thus estopped from denying it at this later time, it is taken as an afterthought. In the case of ISSA HASSAN UKI V. R, Criminal Appeal No. 129 of 2017, CAT at Mtwara it was held that failure of the Accused person to cross-examine the witnesses on a particular fact, implies his admission on the said fact. Hence, estopped/precluded from denying the same in appeal. Thirdly, there is evidence from PW5 and PW6 that they know the accused person, they also know the victim (deceased), and that Saidi is the accused person’s friend. These witnesses further testified that; all 15 have been doing the same activity of Bodaboda Riding business at Kahama and that, the accused had an old motorcycle. PW5 particularly testified that, the last day for him to see the accused person was 5th March, 2023. These pieces of evidence suggest that, both, the accused person and Saidi who disappeared as soon as the motorcycle got lost, took advantage of being close to the victim to commit murder against him (deceased) for the purpose of robbing the said new motorcycle that the deceased had. On the strength of the above endeavors, I am firm that, the prior conditions for convicting the accused person on circumstantial evidence, have been met. I am thus of the firm views that, this issue has been answered in affirmative, that the accused person is responsible for the killing of the victim, Peter Charles. The last issue is whether the accused person killed the deceased with malice aforethought. This issue tends to prove whether the accused is guilty of Murder or Manslaughter. In a case of Enock Kipela V. Republic, Criminal Appeal No. 150 of 1994, CAT at Mbeya, the Court had an occasion to consider a situation like the one at hand. In it the Court of Appeal stated that; 16 "Usually, an attacker will not declare his intention to cause death or grievous harm. Whether or not had that intention must be ascertained from various factors, including the following: (i) The type and size of the weapon, if any used in the attack; (ii) The amount of force applied in the assault; (iii) The part or parts of body the blows were directed at or inflicted on; (iv) The number of blows, although one blow may, depending upon the facts of a particular case, be sufficient for this purpose; (v) The kind of injuries inflicted; (vi) The attacker's utterances, if any, made before, during or after the killing; and (vii) The conduct of the attacker before or after the killing.” [Emphasis supplied] 17 In connection with the above excerpt, as we have seen above on what the Post Mortem Report has provided, that the victim’s body had head and abdomen injuries. These are delicate parts of the human body. The evidence shows that the accused person, his friend Saidi and the victim’s motorcycle disappeared soon after the offence being committed. It follows therefore that the killing was intentional, done for the purpose of stealing the said motorcycle which was still new, and that they disappeared with it to Sikonge in Tabora Region in order to conceal the truth. On those premises, it is thus right to conclude that, the accused person intended to commit murder against the victim. If the intention was not to kill, the attack could have not been directed to the said vulnerable parts of victim’s body, the victim’s motorcycle would not have been stolen and that the accuse person would not have gone with the said motorcycle to another region, Tabora, whose location is far from the scene premise, Kahama, the act which can be taken as a means of concealing the said murder event. On account of the above stated reasons, this issue too has been answered affirmatively that the accused person killed the victim with malice aforethought. 18 All said and done, with this evidence, and for want of evidence from the defense to create reasonable doubt, I am settled that, the prosecution case has been proved beyond all reasonable doubts as required by the law. In view thereof, the Accused Person, Nasoro Bakari Nasoro is hereby found guilty of the offence of Murder, contrary to the provisions of sections 196 and 197 of the Penal Code [Cap. 16 RE 2022] and he is accordingly convicted. S.M. KULITA JUDGE 14/06/2024 DATED at SHINYANGA this 14th day of June, 2024. S.M. KULITA JUDGE 14/06/2024 19 20