republic vs triphon augustino mtupa 2 others 2023 tzhc 20863 30 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA CRIMINAL JURISDICTION CRIMINAL SESSION NO. 46 OF 2021 REPUBLIC VERSUS 1. TRIPHON s/0 AUGUSTINO @ MTUPA 2. ALBERT s/o DISMAS © LUMBETI 3. HANCELEMOs/o PHILBET © LUMBETI JUDGEMENT Mwenempazi, J. The information filed against the accused persons named above, is that on the 08th day of October 2020 at Kisiwani area within Sumbawanga District in Rukwa Region, the accused persons did murder one persori known as REUBEN JOHNSON @ MASONGANYA contrary to Section 196 & 197 of the Penal Code, [Cap 16 R.E 2022]. When the information was read over to the accused persons, they protested against the charges and asserted their innocence. Whereas, Ms. Marietha Maguta, Mr. David Mwakibolwa and Ms. Maura Tweve i learned State Attorneys represented the Republic, Mr. Peter Kamyalile, Ms. Neema Charles and Mr. Samwel Kipesha learned advocates represented the first, second and third accused persons respectively. It was established and consequently proved during Preliminary Hearing that the deceased is indeed dead. The Report on Post Mortem Examination that was admitted into evidence without objection indicates that the cause of death was the fracture of the base of the skull and also profuse internal bleeding and that the death of the deceased was unnatural. The said report (Exhibit Pl) indicates that the deceased's body was found with injuries on various parts of the body. The injuries entailed to be stabbed with a sharp object. The first injury was on the chest, left side under the breast, two wounds on the stomach left and right; third injury was on the left femur area and that blood was oozing from the nose, ears and mouth as the result of the fracture of the base of the skull, j As per Exhibit Pl, the deceased was indeed dead but the mystery was still on who was the actual offender, of which this was the duty of the prosecution side to prove that the accused persons lined up as suspects to this ordeal are the ones who have ended the life of the deceased maliciously. 2 The prosecution's evidence against the accused persons is pegged to the doctrine of recent possession and confession of the 1st accused, That, some few months after the deceased's death that is on the 28th of January, 2021 the 1st accused person was arrested in Dar es Salaam Region at Tegeta area within Kinondoni Municipality and he was found in possession of the missing deceased Motorcycle with Registration Number MC263CNU make TVS in which was seized and seizure certificate was filled in and he signed it. Again, the 1st accused person was interrogated by way of cautioned statement and he confessed to have committed the offence and he mentioned the other culprits who were the 2hd and the 3rd accused persons, who were arrested: within Sumbawanga District in Rukwa Region. Both the 2nd and 3rd were also interrogated by way of cautioned statement, and they all confessed to have participated in the commission of the offence. The prosecution side examined ten (11) witnesses in the attempts of proving the accused persons before this court were the assailants who ended the deceased's life. PWl, YAMUNGU RASHID JUMA, PW2, RAYMOND PETER MSANDAWE, PW3, LUKAS AUGUSTINO KAHOLWE and PW5, PIUS MWIKALA testified that on the 08* of October 2020 in the morning hours, they all witnessed the body of the 3 deceased lying outside their house after being informed about his death, PW1, PW2 and PW3 testified further that the body had several wounds which entailed that the deceased died unnatural death. In addition to that, PW1, PW2, PW3 and PW5 all knew the deceased had a motorcycle make TVS and it was black in colour but it was nowhere to be found either at the crime scene or at the deceased's house. And the absence of this motorcycle was the starting point for the investigating police officers to search for the assailant who has murdered the deceased. PW4, MUSA ALFRED M BALAM WEZI a medical doctor who performed the autopsy on the deceased body testified that on the 09th of October, 2029 he was at Mazwi Health Centre continuing with his duties and he received a call from the mortuary attendants that there is a work to examine a dead body. At the Mortuary, he found two persons he did not recognise, the mortuary attendants and a police officer who had PF. 99 with him. He was then introduced that the deceased's name is Reuben Johnson Masonganya. As he examined the body, on his external observation, the deceased was wearing t-shirt and jeans trousers soaked with blood and the deceased was oozing blood from the nose, ears and mouth. As he undressed the clothes, he observed the deceased had injuries on various 4 parts of the body. That, the injuries entailed to be stabbed with a sharp object. PW4 proceeded that, the first injury was on the chest, left side under the breast, two wounds on the stomach left and right; third injury on the left femur area; he clarified that an injury due to a cut is long with shallow depth while a stabbed wound is deep and short. That, the Stabbed wounds were on the left side of the chest under the breast and on left side of the stomach and the cut wounds were on the: femur and right stomach side. He then added that the body was oozing blood from the nose, ears and mouth in which it was a sign of fracture of the base of the skull. And as he cut open the stomach, he found the spleen was perforated. And so, he concluded that the cause of death of the deceased was due to the fracture of the base of the skull and also profuse internal bleeding, and therefore the deceased death was unnatural. < After he had finished examining the body, he filled the PF99 and stamped it and handed over the same to the police. He tendered the PF99 as exhibit in evidence and this court admitted it and marked it Exhibit Pl. PW6 was a tax officer from the Tanzania Revenue Authority (TRA) known as JAMES ROBERT BWANA. He testified that, in the 5 year 2021 he was at his station of work at Sumbawanga Regional Office. On the 07th September, 2021 as he was in the office, he received a letter from the OCCID Sumbawanga District Office requiring the TRA office to give information on a motor cycle with Registration No. MC263CNU whereas the letter clarified that the motorcycle was involved in a murder case. As the head of the section, PW6 then logged in the system to see if the motor cycle has been registered, and he was able to find out that the lawful owner of the motorcycle is Reuben Johnson Masonganya. He then extracted the chassis number in order to verify it with the machine, and they did verify that the owner is Reuben Johnson Masonganya and the machine's information tallied with the registration system of Tanzania Revenue Authority (TRA). PW6 clarified further that, in the system, it is possible to see the lawful owner of a motor vehicle and even if the vehicle has changed hands of ownership, it is possible to trace through audit trail, that the system will show the changes. That, the system is able to locate the whereabouts of the vehicle whereas for the particular vehicle in the matter, the system revealed that it is in Dar es Salaam particularly at Teg eta. 6 He added that, thereafter they wrote a letter to disseminate the information they had obtained which included the report which has been extracted from the system. They sent two reports: - one, was the Owner's history and two, was the Audit Trail. PW6 prayed to tender the owner's history and Audit Trail as exhibit in evidence, whereas after the objections of the defence counsels being dismissed by this court, the documents were admitted in evidence and Marked as Exhibit P2. PW7, G. 231 D/CPL NADHIRI and PW9, H.651 CPU SALUM SAID NTUNDA, were the investigating officers who were assigned to travel to Dar es Salaam to search for the motorcycle which belonged to the deceased as per the TRA report that the said motorcycle was In the said city. Nevertheless, the OC CID of Sumbawanga had been tipped by an informer that he has seen someone using the said motorcycle as a 'bodaboda' in which it motivated the OC CID to send the two investigators. PW7 as he was earlier instructed to investigate a criminal case of murder - SUM/IR/4361/2020, in which made him visit the crime scene, through interrogating the neighbours of the deceased, that is how he learnt that the deceased had a motorcycle and it has gone missing. PW7 acquired the registration card of the vehicle from the deceased's father and that is how the search for the culprit began. 7 PW7 and PW9 arrived in Dar es Salaam on the 27/1/2021 at 1:00 hours. They communicated with the informer and they were able to spot the joints that the motorcycle stations for the business of 'bodaboda' but, the investigators knew it would be impossible to trace and arrest the person using the motorcycle purported to be owned by the deceased person in the afternoon, and therefore through their informer, they traced the culprit's home and in the course of tracing him, they were able to know his name as TRIPHON. On 28/01/2021 during night hours PW7 and PW9 went to the house they spotted to be place where TRIPHON lives, as they knocked, he opened and after introducing themselves, they enquired him as to whether his name was TRIPHON and he replied affirmatively, and they arrested him telling him he is connected with the offence of murder which had happened in Sumbawanga, and TRIPHON did not deny the allegation. The police officers then wanted him to take them where he has parked the motorcycle, and TRIPHON said he has parked it at Tegeta COM parking yard. Therefore, the same night, the trio went to Tegeta Police Post and in the company of the OCS of Police Post, they all went to the COM parking yard. While there, they made to communicate with PW8 who was the guard supervisor of the area, and they did so. Upon arrival, the 8 police officers introduced themselves and the purpose of being at that area at that particular night, whereas they told PW8 that TRIPHON has parked a motorcycle which is connected to an offence of murder which has occurred at Sumbawanga, and that they want to seize it and PW8 adhered to their request. The police officers then seized the motorcycle with registration number MC263CNU and, PW7 filled the Seizure Certificate in which TRIPHON (1st accused) signed, PW9 sighed as a witness and PW7 himself also signed. Thereafter, they all headed back to the Police Post. After recognising the motorcycle through its features, PW7 then prayed to tender the same with registration number MC263CNU as evidence of which it was not objected and it was admitted in evidence by this Court and it was marked as Exhibit P3. He also prayed to tender the Seizure Certificate and it was admitted in evidence and marked as Exhibit P4. They then went back to the Police Post where PW7 then instructed PW9 to interrogate the 1st accused by way of Cautioned Statement. PW9 did so, and in the course of recording the statement, the 1st accused admitted to have participated in the commission of the offence, and also mentioned two of his fellow assailants who also participated in ending the life of the deceased. The 1st accused also told 9 PW9 where the 2nd and 3rd accused persons were found, in which the place was Kirando village at Nkasi District in Rukwa Region. PW9 then prayed to tender the Caution Statement as an exhibit in evidence, whereas after a trial within trial, this court did admit the 1st accused's Cautioned Statement as Exhibit and marked it as Exhibit P6. PW9 also recognised Exhibit P5 through its features. PW7, PW9 and the 1st accused person started the journey back to Sumbawanga from Dar es Salaam on the on the 29th of January, 2021, and they had Exhibit P5 with them; And, as they were on the way, they were informed by the OC CID that the other two suspects, Albert Lumbeti (2nd accused) and Hancelemo Lumbeti (3rd accused) have been arrested. As they arrived on the 30th of January 2021 at around 01:00 hours, they kept in remand the 1st accused and took Exhibit P5 to the exhibit keeper CpI. Rizik. Both PW7 and PW9 did recognise in court the person they arrested in Dar es Salaam being the first person on their right hands sitting in the dock. PW8 was YOHANA SAM WE LI KANYELA, he was the watchman supervisor at the CCM parking yard at Tegeta. He testified that on the night of 28/1/2021 he received a call from ABDUL MGALLA his fellow watchman and he told him that he is needed at their work place. As he responded to the call, at the parking yard he found, ABDUL MGALLA, Triphon (for he knew him) and two people who introduced themselves 10 to him as Police Officers. The police officers told him that they were assigned to come and arrest Triphon as he is involved in a murder offence which occurred at Sumbawanga, and that at the parking yard they came for the motorcycle that Triphon owns and he has parked it at the yard. PW8 then agreed to their request, because the owner of the motorcycle with registration number MC263CNU make TVS xcfwas present and the two police officers had introduced themselves to him. Thereafter, PW8 said they filled a form which meant that the motorcycle has been taken by the police officers from the parking yard, and the said police officers left with Triphon and the motorcycle.. In concluding, PW8 pointed out to the 1st accused person in the dock identifying him as Triphon, the person who used to park his motorcycle at the CCM parking yard at Tegeta. PW10 was A/INSP. SHADRACK SAMWEL LU KALI. He testified under oath that on the 8/10/2020 in the morning hours he was at the office at the Police Station, Sumbawanga District, that he was then summoned by the OC CID Sumbawanga District - Asp. Madulu, and told him there is a person who has been at killed Kisiwani within Sumbawanga District. Therefore, they prepared themselves and went to the scene of crime, and at the scene they saw many people in grief, and the body of the deceased was behind their house. PW10 said, he saw the body with several wounds and the clothes it had was soaked in blood. n It was his testimony that, at the scene of crime they were assigned different tasks by the OC CID, including interrogating neighbours of the deceased who were at the scene of crime. He added further that, they interviewed PW1 who lives just 20 paces from where the deceased, and that he had a motorcycle but he does not know the offender, the same detail was obtained from interrogating one person known as PIUS who used to work with the deceased at the same office as financial services providers, he too said the deceases had a motorcycle but it was no where to be seen. He added further that on the 09th of October, 2020 he was handed by the OC CID a murder case file with registration number SUM/IR/4361/2020 to investigate. He was with PW7 as investigators of this ordeal. They together went to interrogate more the neighbours of the deceased, and they succeeded to get the registration card of the motorcycle that belonged to the deceased, they got the same from the deceased's father known as Johnson Masonganya. They then took the same to the OC CID who instructed them to take it to TRA. He told this court, that on the 15th of January, 2021, the OC CID informed him that he has received information that the deceased's motorcycle is at Dar es Salaam that someone is using it, and that the OC CID appointed D/C Nadhir and D/C Salum to travel to Dar es Salaam in 12 order to search and arrest the person using the deceased's motorcycle and also seize the same and bring back the culprit and the motorcycle back to Sumbawanga. He testified further that, on the 28th of January 2021, he was informed by the OC CID, Asp. Madulu that the assigned police officers who have gone to Dar es Salaam, have arrested one person who after interrogation, has admitted to have committed the offence and also has mentioned other two suspects who also participated in murdering the deceased. That, the arrested suspect mentioned the names of the other two suspects to be Albert Dismas Lumbeti and Hancelemo Philbert Lumbeti, and that they are at Kirando village at Nkasi District. That, on the same day, they went to Kirando village and arrived around 20:00 hours whereas they were able to arrest the two suspects around 21:00 hours and travelled back to Sumbawanga with the two suspects and arrived at Sumbawanga at around 05:00 hours the dawn of the 29th January, 2021. PW10 added that, at around 07:00 hours, he was assigned to interrogate Albert Dismas Lumbeti, who is the'2nd accused person and that Hancelemo Philbert Lumbeti was interrogated by D/Cpl Masanja. PW10 started recording the statement of the suspect at 08:00 hours and finished at 11:15 hours. Testifying further, PW10 told this court that, on the 30th of January, 2021 he was told that the suspect 13 who was arrested in Dar es Salaam has been brought to Sumbawanga together with the motorcycle that belonged to the deceased, and therefore PW10 went to the remand to see the arrested suspect and also, he went to the exhibit room to take a look at the motorcycle, Before summing up his testimony, PW10 did recognize Albert Dismas Lumbeti as the accused sitting in between the 1st accused who he also pointed out as Triphon Augustino Mtupa and the 3rd accused person Hancelemo Philbert Lumbeti. He then prayed to tender the cautioned statement of the 2nd accused person in evidence whereas as this court ruled out the objections raised by the defence counsels; the 2nd accused's cautioned statement was indeed admitted in evidence in which it was marked as Exhibit P7. : PW11 was. H. 870 D/CPL. MASANJA, he testified that on the 29th of January, 2021 he was at Police Station Sumbawanga and he was assigned to interrogate Hancelemo Philbert Lumbeti. Therefore, he went and got the named suspect above and headed With to the interrogation room where there was a table with two chairs, and he had a paper and a pen. He started recording his statement at 08:00 hours and finished at 10:05 hours. PW11 proceeded that he read out his rights and after he had finished recording the statement, he gave the same to the accused 14 person to read if it is correct and if there is something missing it could be added, but the accused person agreed to the contents within the statement and signed it, PW11 also signed it The latter prayed for this court to admit the statement as exhibit in evidence, and after another objection from the 3rd accused's counsel being dismissed, his cautioned statement was admitted in evidence and it was marked as Exhibit P8. PW11 then identified the accused person he recorded his statement to be the first person sitting in the dock, pointing at the 3rd accused person. At this juncture, the prosecution side prayed to close their case as they had no any other witness to be summoned, and this court ruled out that a prema facie case against the accused persons has been established and they were required to defend themselves, and they were therefore, addressed in terms of section 293 (2) of Criminal Procedure Act [Cap 20 R. E. 2022]. The defence had only three witnesses, whereas DW1 was TRIPHON AUGUSTINO MTUPA. He testified under oath that; he resides in Dar es Salaam at Tegeta kwa Ndevu. He added that, he is a fish monger, as he buys fish from different areas such as Mwanza and here at Rukwa and he knows the charge against him here in court is of 15 murder whereas the deceased is known as REUBEN JOHNSON MASONGANYA. He insisted that, he is the one who is involved in the murder of the deceased and not he 2nd and 3rd accused persons. He clarified further that, he knew the deceased, and on the 10th of July, 2020 he came to Sumbawanga in the course of his business of buying fish particularly at lake Rukwa and he had Tshs. 8,000,000/= with him. He thus went home at Majengo Bwawani where he met with his relatives who are the 2nd and 3rd accused persons. He told them that he has sum of money in the tune of Tshs. 8,000,000/= and that he wants to go and buy fish at lake Rukwa. They told him it is not safe; these days to have cash money on hand and that they have a friend to whom DW1 may keep his money and retain it in time as soon as he needs it. That the friend being talked of is the deceased, REBUEN JOHNSON MASONGANYA. DW1 continued to testify that, he adhered to the advice he was given and he was taken by his two relatives to the deceased financial business office. He introduced himself to the deceased and thereafter DW1 handed Tshs. 8,000,000/= to the deceased. However, DW1 stated that in the course of his business, the deceased had given him part of the sum DW1 had given him and that only sum remained was Tshs, 2,400,000/=. 16 DW1 did not end there. He stated further that, on the 07th of October 2020 in the evening hours, he was drinking some beers at a liquor bar known as Andrew's, it was around 20:00 hours. At that time, he received a call from the deceased who told him that he should go to their home and take his remaining Tshs. 2,400,000/= which he owed him. And therefore, he went to the deceased's house, but as he was there, the deceased did not give him the money he owes DW1 instead they began quarrelling as DW1 was enquiring the deceased why he had made him go at his house and yet he does not have the money he owes him, and the deceased slapped DW1 on his cheek and he did the same, the deceased then ran inside and took a knife and stabbed DW1 on his chest, and DW1 as drunk as he was grabbed the knife from the deceased and stabbed him on the stomach and he fell down. DW1 then told him he is taking his motorcycle until he pays him his money and he will get his motorcycle back. DW1 does remember the registration number of the motorcycle as he mentioned it to be MC263CMU. DW1 proceeded that, he however travelled with the motorcycle to Dar es Salaam and on the 27th of January 2021 during the night hours as he was at his home at Tegeta, two people knocked on his door and introduced themselves as police officers, that they put him under arrest and took him to Tegeta Police Post where they beat him while asking 17 him where was the motorcycle he took. DW1 added that, he told the police officers that, the motorcycle is at CCM car parking yard, and he took them at the place. At the yard, DW1 said they found the security guards and the police officers introduced themselves, and he handed over the motorcycle to the police officers and the same was TVS with registration number MC263CNU which was tendered as exhibit to this court. DW1 winded up by saying that they went back to the Police Post, and at the Post, the police officers asked him how did he know the deceased if he has not been in Sumbawanga for a long time, and DW1 answered that he knew the deceased through his two cousins, Albert Dismas Lumbeti and Hancelemo Philbert Lumbeti. He added that, his cautioned statement shows that the 2nd and 3rd accused persons were also involved in murdering the deceased, but he insisted that the two were not involved but his two cousins were at Kirando village and the police said that they needed my cousins to assist in their investigation. Therefore, DW1 prayed for this court to release him as he killed the deceased without the intention of doing so. When cross examined by Ms. Maura Tweve learned State Attorney, DW1 said that it is true that I read and certified the statement I made, and it was true. 18 DW2 was ALBERT DISMAS LUMBETI, He testified that he now resides in prison but before being arrested he was residing at Majengo Bwawani. He added that, on the 10th of July, 2020 he was at home and his cousin known as Triphon came from Dar es Salaam, that the purpose of his visit was his business of buying fish and at the time he had 8,000,000/= in cash. That, they advised him to put the money somewhere because the world has changed and that, they advised him to keep his money at the deceased's financial business, in which the deceased had his financial business dealing in MPESA,AIRTEL MONEY and others of the same, and therefore they took DW1 to the deceased. He continued that, on the 26th of September 2020 he was at Kirando visiting his in-law arid taking care of his wife and child who were sick, that he stayed there from that date up to the date he was arrested which was the 27th of January 2021. That, he was told the reason of his arrest is being involved in the offence of murder which occurred in Sumbawanga, and thereafter his arrest he was taken to Kirando Police Post, and after an hour they started the journey from Kirando to Sumbawanga where they arrived the dawn at 05:00 hours. He added that the cautioned statement was taken on the 29th of January 2021 and it was recorded by D/Cpl Shedrack, and he commenced recording at 08:00 hours. 19 DW2 insisted further that the cautioned statement tendered in court was different from the one he recorded at the police station, where he was asked his particulars and he told the police his names, family, education, residence and tribe and that he also told them that he is not involved in this offence at all and the reason is because he does not know how it happened. That, on the date mentioned in the charge sheet, he was at Kirando and that is being framed, and he prays for this court to release him. When crosse examined by the learned State Attorneys, DW2 stated that it is true that he was at Kirando with the 3rd accused person, and also it is true that he had his statement recorded at the police station before D/Cpl Shadrack on the 29th of January 2021, and it began at 08:00 hours. HANCELEMO PHILBERT LUMBETI testified as DW3. He testified that he knows that he is charged with the offence of murder of Reuben Johnson Masonganya, but he insisted that he has not committed the offence and even the evidence tendered has not proved that he was involved in murdering the deceased. DW3 insisted further that, PW11 testimony was a proof that he was not involved in the offence as he recorded his statement before him, he never confessed to have participated in murdering the deceased. 20 DW3 proceeded that, he was arrested on the 27th of January 2021 at 19:00 hours as he was at Kirando-Mtakuja village, and thereafter he was taken to Kirando Police Post and after one hour they started the journey to Sumbawanga. DW3 insisted that it is the duty of the prosecution to prove the allegations facing him before this court, but hjs not involved in this offence because from PW1 to PW11 no one has proved that he is involved in the offence, and even DW1 himself has testified that he is not involved. He too prayed for this court to release him. The defence had no any other witness and hence closed their case. Wherefore, the onlyjssue for determination is whether there is sufficient evidence on record to the effect that, the deceased's death was the accused persons7 contrivance. As earlier hinted the present case is pegged on two doctrines, the first being the doctrine of recent possession and the second one being confession. In my analysis, I will start first with the doctrine of recent possession whereas, the proof of death in this case is dependent upon success of the prosecution in proving each element required to be proved under the doctrine of recent possession. Under the doctrine, if a person is found in possession of property recently stolen and gives no reasonable explanation as to how he had come by the same, the court 21 may legitimately presume that he is a thief or a guilty receiver. The doctrine applies in murder cases as well. In the case of Mustapha Maulidi Rashidi vs Republic, Criminal Appeal No. 241 of 2014, the Court of Appeal of Tanzania held that, for the doctrine of recent possession to apply as a basis of conviction, it must be proved, first, that the property was found with the suspect, second, that, the property is positively proved to be the property of the complainant, third, that the property was recently stolen from the complainant and lastly that, the stolen thing constitutes the subject matter of the charge against the accused. In the cited case, it was insisted further that, the fact that the accused does not claim to be the owner of the property does not relieve the prosecution to prove the above elements. In the present case, after the deceased was murdered, at the crime scene there were witnesses who knew the deceased and they were interrogated by the police officers and did alert the police officers that the deceased had a motorcycle which was not seen anywhere at the crime scene or at the deceased's residence. The witnesses were PW1, PW2, PW3 and PW5 who also testified in this court that they knew the deceased and that he had a motorcycle which was black in colour and it was a TVS made. PW1 even led the police in obtaining the 22 Registration Card (Exhibit P3) of the Motorcycle, whereby PW7 and PW10 took it to the OC CID and later to the TRA office and it was confirmed that the deceased owned a black TVS motorcycle with the registration number MC263CNU (Exhibit P5) as testified by PW6. And it was revealed that it is in use by an unknown person in Dares Salaam. As the records reveal that, PW7 and PW9 were assigned to go to Dar es Salaam to search and arrest the person using the Exhibit P5 an seize it. It was the testimonies of PW7, PW8 and PW9 that the 1st accused was the person who was found in possession of Exhibit PS. This was also proved by the seizure certificate (Exhibit P4) which was signed by the 1st accused person himself, PW7 arid PW8. Can it be safely said that the purported missing property was positively proved to be the property of the deceased? Yes! It was. Thrpugh the principles of identification require that, there should be positive identification of the stolen items by the identifying witness who is supposed to give peculiar and special marks distinguishing his properties from other similar items. In the case of Ally Zuberi Mabukusela v Republic, Criminal Appeal No. 242 of 2011 the Court of Appeal held that; 23 In all such cases the claimant should make a description of special marks on an item before it is shown to him and allowed to be tendered as an exhibit." [Emphasis is Mine] In this case, PW6 vividly identified the missing property to be owned by the deceased. PW6 tendered a Motor Vehicle Owner's History (Exhibit P2). The ownership of Exhibit P5 by the deceased was also confirmed by PW7 who tendered the Motor vehicle registration card (Exhibit P3). It was Exhibit P2 and P3 which distinguished the deceased's motor vehicle from any other motor vehicles, by its special features. Nevertheless, the 1st accused person never had any legal and reasonable explanations as to why he is in possession of Exhibit P5, as in his defence did testify that he then took the motorcycle as he demanded the deceased to repay his money. Whereas, his explanation is too illogical because it lacks continuity from his own confession (Exhibit P6) or rather his fellow assailants. As far as the 1* accused person is concerned, the doctrine of recent possession firmly pegs him to the offence of murder of the deceased as it was held in the case of Joseph Mkumbwa and Samson Mwakagenda vs Republic, Criminal Appeal No. 94 of 24 2007 (unreported), where the Court summarized the position on the application of the doctrine thus: "Where a person is found in possession of a property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with the person or place wherefrom the property was obtained.. ." Coming to the second doctrine of confession, in which under our law, the term confession is defined under section 3 (a) to (d) of the Evidence Act to mean:- "(a) words or conduct, or a combination of both words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence; or (b) a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence; or (c) a statement containing an admission ofall the ingredients of the offence with which its maker is charged; or (d) a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone 25 or in conjunction with the other facts proved, an inference may reasonably be drawn that the person making the statement has committed ah offence." Simply stated, a confession is the criminal suspect’s acknowledgement of guilt, usually in writing and often including details about the crime. It is opportune to stress here that reliability or otherwise of a statement regarded to be a confession is based on the assumption that it was voluntarily made. The Court is bound to rule otherwise if it may be convinced that such confession was obtained by torture, threats or promises held out by a person in authority - See Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010, CAT (unreported). In this case at hand, starting with the 1st accused person did voluntarily confess in writings that he had killed the deceased. In this, I. find it best to reproduce an extract of his confession as hereunder; "..... na mimi nikachukua hicho kisu na kumchoma tumboni mara mbiii hadi akafa ndipo tukachukua begi ia mgongoni................" This confession was corroborated by his own submission during his defence. Although, I believe, the 1st accused bringing up a different story to the one he stated in his confession (Exhibit P6) was an 26 afterthought, but eventually at both ends, he did confess to end the life of the deceased. I should point out that, the story that the deceased owed him money was neither told by any of the documentary evidences adduced before this court nor did the 1st accused adduce any document to suggest the same. However, it is in this Exhibit P6 that the 2nd and the 3rd accused persons were mentioned by the 1st accused person to have participated in the killing of the deceased. Again, an extract would assist in clarifying my analysis, the extract is as hereunder; - ; ilipofika kama saa 20:15 afifika na pikipiki na mara tu aiiposhuka tulimvamia wote watatu, mimi niiimkaba shingoni kwa nguvu, HANS LUMBETI aiifungua kamba za kiatu changu na kumfunga mikono yake na ALBERT LUMBETI aiitoa kisu na kumchoma tumboni mara mbi/i hadi akaanguka chin" This fact draws me to make an analysis that concerns the 2nd accused person. In his cautioned statement (Exhibit P7), he admitted to have participated in the commission of the offence. Again, below is an extract from Exhibit P7:- "..............akiwa anatoka nje kutoka ndani ndipo TRIPHONE S/O MTUPA aiimkaba na mimi nilienda kumsaidia ndipo tuiimuangusha chini nyuma ya nyumba yao na aiizibwa 27 mdomo na TRIPHONE na mfmi nikamziba kwa lengo la kumdhibiti....." It should be noted that, in his defence, the 2nd accused person denied to have committed the offence, but in reality, I regard that as an afterthought, because the contents found in Exihibt P7 corroborates the contents found within Exihibt P6. Nevertheless, as the 1st accused person confessed to have murdered the deceased person by himself and insisted that the 2nd and 3rd accused persons were hot involved, as he attempted to exonerate them from this guilt; it is my belief that this submission made by the 1st accused person, made the 2nd accused person in his defence, to come up with a denial testimony of being involved in murdering the deceased contrary to his cautioned statement (Exhibit P7). Coming to the 3rd accused person, his involvement has not been corroborated by neither of the witnesses summoned nor the documentary evidences adduced before this court. In the extract from exhibit P6 above, it was stated by the 1st accused that the 3rd accused tied the hands of the deceased by using the 1st accused's shoe laces. This was not testified elsewhere by any of the witnesses summoned. 28 But, again from an extract within Exhibit P7, the 2nd accused person said that the 3rd accused person was at the market area waiting to alert them when the deceased passes by. This fact is corroborated by the 3rd accused person's testimony (Exihibt P8) which he recorded before PW11. In this exhibit, the 3rd accused person did not confess to have participated in murdering the deceased, but rather he only alerted the other suspects that the deceased had passed his point (sokoni) as testified by the 2nd accused person. Below is an extract'from Exhibit P8:- "majira ya 19:30 tukawa tunaelekea nyumbani kwa REUBEN s/o? ALBERT DISMAS @ LUMBETI aiikuwa amebeba nondo fupi, mimi sikuwa nimebeba kitu chochote, tuiipofika maeneo ya Kisiwani Sokoni mimi niiibaki paie kwa kuwa ndiyo eneo ambaio REUBEN s/o? aiikuwa anapita kueiekea kwake Hi atakapopita paie niwape taarifa kwamba anakuja Hi wajiandae........................... ... ........................Baada ya kuwa niliwapa taarifa miminikawa narudinyumbani" In his defence, the 3rd accused person stressed that there is no evidence adduced before this court that has proved his participation of murdering the deceased. In this, I do agree with him that, the 29 prosecution side has not proved the charges of murder against him. And therefore, I find no any further just reason to hold him further in the dock. In that I proceed to acquit HANCELEMO PHILBERT @ LUMBETI and he should leave this court as a free man. On the contrary, as per my analysis of the evidence before me, I am convinced that the charge of murder against the 1st and the 2nd accused persons have been proved beyond the required standards of the law, that the evidence is sufficient to declare that the deceased's death was the 1st and 2nd accused persons' contrivance. I am therefore fortified that, the 1st and 2nd accused persons did murder REUBEN JOHNSON MASONGANYA. Did the accused persons murder the deceased with malice aforethought? In a trial of a murder case, the offence is said to be committed where any person who, with malice aforethought, causes the death of another person by an unlawful act or omission. This comes out very clearly in section 196 of the Penal Code, which stipulates thus: "196. Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission commitsan offence of murder" 30 An unlawful act or omission is defined under sub-section (2) of section 195 of the same Act to mean the following: "195 (2) An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether the omission is or is not accompanied by an intention to cause death or bodily harm." Clearly where by malice aforethought, a person kills' another person by unlawful act or omission, this amounts to murder, that is, in case of murder the act or the omission has to be -accompanied by an intention to cause death or bodily harm." It is therefore the intentional killing of a person by another person which defines the killing of another person as being murder, absence of which the killing becomes manslaughter. In this case at hand, the prosecution was therefore required to establish the fact of the unlawful act or omission {actus reus} and that of maiice aforethought {mens rea or intention), in which it successfully did so. , To that extent, I do find TRIPHON AUGUSTINO @ MTU PA and ALBERT DISMAS @ LUMBETI guilty of the offence of murder contrary to Section 196 and 197 of the Penal Code [Cap 16 R. E. 2022] and I hereby proceed to convict them as charged. 31 It is ordered. T. M. MWENEMPAZI JUDGE 30/08/2023 Unfortunately, there is only one penalty for the offence of murder, as stipulated under Section 197 of the Penal Code [Cap 16. R. E. 2022] and that is, death by hanging. In the premise, this Court having entered conviction against the 1st and 2nd accused persons, I hereby sentence the 1st accused person, TRIPHON AUGUSTINO @ MTUPA, and the 2nd accused person, ALBERT DISMAS @ LUMBETI, each to suffer death by hanging until they die. T. M. MWENEMPAZI JUDGE 30/08/2023 Right of Appeal explained. T. M. MWENEMPAZI JUDGE 30/08/2023 32