Bakari Omari Saidi Ngochi vs Republic (Criminal Appeal No. 796 of 2023) [2025] TZCA 1117 (15 September 2025)

AT SONGEA (CORAM: MKUYE, J.A., MASOUD. J.A. And ISMAIL. J J U CRIMINAL APPEAL NO. 796 OF 2023 BAKARI OMARI SAIDI NGOCHI ..................................................... APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate Court of Songea at Songea) (Maiewo. PRM - Ext. 3ur.^ dated the 19th day of September, 2023 in RM, Criminal Sessions Case No. 5 of 2020 JUDGMENT OF THE COURT 3r d & 15th October, 2025 MKUYE, 3.A.: This decision emanates for the judgment of the Resident Magistrates' Court of Songea (with Extended Jurisdiction) at Songea (Maiewo PRM Ext. Juris.) in RM Criminal Sessions Case No. 5 of 2020 dated 19th September 2023. In the said case, the appellant, Bakari Omary Said @ Ngochi along with Thabiti Mohamed @ Malukula, the former second accused and not subject to this appeal, were charged with murder contrary to section 196 of

the Penal Code, Cap 16. It was alleged that, on 28th March, 2019 at 15:30 hours at Muhuwesi village within Tunduru District in Ruvuma Region, they did murder one, Tariki Issa Mohamed (the deceased). They pleaded not guilty to the charge. In order to prove the offence, the prosecution marshalled fifteen witnesses and produced nine exhibits. At the conclusion of the trial, the trial court was satisfied that the charge against the appellant was proved beyond reasonable doubt. It accordingly convicted and sentenced him to the mandatory sentence of death by hanging. On the other hand, it found that, the case against the 2n d accused was not proved and it acquitted him forthwith. Aggrieved by that decision, the appellant has lodged an appeal to this Court fronting two sets of memoranda of appeal. A self-crafted memorandum of appeal consisting of eight (8) grounds of appeal and a supplementary memorandum of appeal consisting of three (3) grounds lodged by the learned advocate assigned a dock brief of this matter. Before embarking on the merit of the appeal, we find it apposite to narrate albeit briefly, the background of this matter. It goes thus. On 27th March 2019, Tariki Issa Mohamed, a standard VI student (deceased) and a son of Issa Mohamed Mdenje (PW3) was instructed by his

father to go to their farm in Chasa, Muhuwesi village to collect groundnuts. The deceased went by a bicycle provided to him by his father. However, he never returned home alive. Incidentally, before the deceased's disappearance, he was last seen by Noel Nassoro (PW4) who saw him travelling to and from the farm with a bicycle. As the deceased had not turned up, until by 7:00 pm, it raised a concern from his mother who alerted PW3. PW3 instructed his step son Ally Issa Mohamed (PW5) to search for him (Tariki) but the search proved futile. The disappearance of the deceased was reported to the village office, mosque and subsequently to Tunduru Police station on 28th March 2019. However, later on that day at about 4:00 pm, PW3 received information that Tariki was found dead hanging with his arms and legs bound by ropes and his face covered by his T-shirt. The body of the deceased was taken to Tunduru Hospital where Dr. Fredrick Mabena (PW1) conducted a postmortem examination on 29th March 2019. He observed that, the deceased's death was due to prolonged airway obstruction (suffocation), evidenced by 12 cm bruises on the neck along with bruises on the arms and right thigh as exhibited in the Postmortem Examination Report (exhibit PI).

On 31s t March 2019, the deceased's father (PW3) was called to Tunduru Police Station, where he identified the bicycle (exhibit P2) that the deceased used on the fateful day. By then, the said bicycle was in the custody of G. 5164 PC Said (PW2), the exhibits keeper, having been retrieved from Saidi Ntila Saidi (PW7) who had purchased it on 29th March 2019 from the appellant at TZS. 90,000.00 with the 2n d accused, Thabit Mohamed, being a witness to the transaction of sale. Ntila Saidi Ntila (PW8) who was the PW7's father acted as a witness on the part of the purchaser (PW7). The transaction of sale was concluded in writing at the office of the Mbarikiwa Village Executive Officer, Samama Hamidu Ntila (PW6) and he prepared a sale agreement (exhibit P4). He also caused the appellant to sign the visitor's book (exhibit P5). On 30th March 2019, the appellant was arrested by the Village Executive Officer, Zuberi Salum Omera, (PW12) and the 2n d accused was arrested shortly after having been mentioned by the appellant. On 3r d April, 2019, the appellant was taken to Itika Chris Korosso, (PW10) a primary court magistrate and a justice of peace where his extra judicial statement (EJS) (Exhibit P6) was recorded admitting committing the offence. His cautioned statement (CS) (exhibit P9) was recorded by G. 3589 DC Mohamed (PW15) where he also confessed to commit the offence.

In his defence, the appellant disassociated himself from the offence alleging that police coerced him leading to his confession. The conviction of the appellant, basically was relied on circumstantial evidence including the bicycles' chain of custody, sale agreement, extra judicial and cautioned statements from the appellant (exhibits P6 and P9) in which he confessed to have murdered the deceased although he later claimed that the confessions were obtained by coercion through beatings. When the appeal was called on for hearing, Mr. Kitara Mugwe, learned advocate appeared representing the appellant whereas the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney together with Mr. Frank Chonja and Mr. Issa Issa Chiputula, both learned State Attorneys. On set, Mr. Mugwe intimated to the Court that, he will argue the grounds in the substituted memorandum of appeal with three grounds of appeal in lieu of the eight grounds self-crafted memorandum of appeal as follows:

1. That, the trial court erred in law and fact in convicting and sentencing the appellant basing on circumstantial evidence.

2. The trial court also erred in law and fact in convicting and sentencing the appellant while the prosecution failed to prove their case beyond reasonable doubt

3. That, the trial court erred in law and fact when it convicted and sentenced the appellant despite the procedural irregularities in tendering and admitting exhibits those relied by the trial court to convict and sentence the appellant. He opted to begin with the 3r d ground of appeal. Elaborating the said ground of appeal, Mr. Mugwe stated that the circumstantial evidence relied by the prosecution was mainly supported by documentary exhibits which were the postmortem examination report (exhibit PI), the bicycle sold by appellant (exhibit P2), the receipt used to purchase the bicycle (exhibit P3), the sale agreement of the bicycle (exhibit P4), the visitors book (exhibit P5), the appellant's Extra Judicial Statement (exhibit P6), the sketch map (exhibit P7), the search warrant (exhibit P8) and appellant's cautioned statement (exhibit P9). He pointed out that, although those exhibits were mostly relied on convicting the appellant, most of them were admitted in evidence irregularly as the procedure for their admission was not adhered to since they were not read out in court.

He argued that the effect of failure to read the exhibits in court is to vitiate the proceedings with a remedy of expunging them from the record. He, therefore, implored us to expunge such exhibits and allow the appeal as there would be no remaining evidence to sustain the conviction after the expungement of such exhibits. He insisted, for example that, if exhibit P8 (certificate of seizure) is expunged, it means even the property seized under it (the bicycle) would have no legs to stand on. In relation to grounds Nos. 1 and 2 which were argued co-jointly, it was Mr. Mugwe's argument that, although in convicting the appellant the trial court relied on circumstantial evidence, such evidence was marred with contradictions. He pointed out such contradictions in the evidence of PW1 who said he observed bruises on the deceased's neck, arm and right thigh while PW3 who also saw the body said it had no injuries. Coupled with the irregularities in the admission of the exhibits and the confessions by the appellant who said he was forced/coerced to confess, he said, it raises doubts which should be resolved in favour of the appellant.

He, therefore, prayed to the Court to find the appeal is merited and allow it, quash the conviction, set aside the sentence and release him from custody. In response, Mr. Chiputula, in the first place prefaced his argument by submitting that they did not support the appeal. In relation to ground No. 3 he readily conceded that exhibit PI, P4, P5, P7 and P8 were irregularly admitted since they were not read over in court after their admission. Given the circumstances he implored to the Court to expunge them from the record. However, he was quick to state that, even if such exhibits are expunged, still there remains strong evidence to sustaining the conviction. While mindful of the duty imposed on the prosecution under section 3 (3) of the Evidence Act of proving the case beyond reasonable doubt, he argued that the prosecution discharged that duty. He argued that, in the offence of murder to which the appellant was charged, the prosecution was required to prove that; one there was a death of a human being; two, the death was unnatural; three, it was the accused (now appellant) who killed the human being; and four, the death was actuated with malice aforethought.

Mr. Chiputula elaborated that, that there was a death of a human being was proved by PW1 who examined the deceased's body and PW3 who saw the deceased body. Apart from that, PW5 also testified to that effect. As to whether the death was unnatural, Mr. Chiputula submitted that it was proved by PW3, PW5, PW4 and PW11. These witnesses, he said, explained the manner they went to the scene of crime and found the deceased tied with ropes with wounds and that their evidence was corroborated by PW1 who revealed that his death was due to suffocation. On the issue whether the appellant was responsible for killing the deceased, Mr. Chiputula was firm that it was proved that he killed the deceased basing on the circumstantial evidence from when the deceased was sent by his father to collect groundnuts to the farm by a bicycle that he gave him; and how PW5 saw him to and from the farm where he went to collect groundnuts and giving some of them to PW5's child. He added that, there was also evidence from PW5 who saw the appellant on suspicious mood when he was on his way to the farm; and how the deceased went missing until when his body was discovered at Sacha the direction where PW5 met the appellant.

The learned State Attorney went on arguing that, on 29th September 2021, the appellant was seen with a bicycle at Mbarikiwa village after having gone to the 2n d accused to tell him about the bicycle he wanted to sell and DW2 looked for a customer (PW7) who purchased it at TZS 90,000.00 and that the sale of the bicycle was backed up by the sale agreement prepared by PW6 and witnessed by PW7 and PW8. After the recovery of the bicycle, he said, it was identified by PW3 who gave it to the deceased as well as PW13 who sold it to PW3. To fortify his argument on the reliability of circumstantial evidence, he referred us to the case of Michael Ouma William v. Republic, [2024] TZCA 309, where the Court propounded the conditions to be met for the circumstantial evidence to be relied upon. The learned State Attorney added that, the circumstantial evidence was corroborated by the appellant's cautioned statement tendered by PW15 without objection (exhibit P9) and extra judicial statement (exhibit P6) in which the appellant gave detailed information on his involvement in killing the deceased and the motive behind being a revenge following the deceased's father suing him until he was imprisoned. The learned State Attorney stressed that, the appellant did not object to the tendering of such statements something which shocked even the trial Judge. To support his 10

argument, he referred us to the case of Anna Moises Chissao v. Republic, [2021] TZCA 468, where it was stated that failure to object the document means admission to its contents. Mr. Chiputula also argued in relation to the appellant's confessions that the best witness in criminal matters is the one who confesses to the offence. To bolster his argument, he referred us to the case of Ignas Sangu v. Republic, [2025] TZCA 324. As regards the issue whether the killing was with malice aforethought Mr. Chiputula referred us to the case of Enock Kipela v. Republic, [1999] TZCA 39 and argued that, the appellant had intended to kill the deceased. He said, injuring the deceased on his neck, a vulnerable part of the body, and strangulating him to death is indication that he intended to kill. On the basis of his argument, he beseeched the Court to find that the case against the appellant was proved beyond reasonable doubt and dismiss the appeal for lack of merit. In rejoinder, Mr. Mugwe stressed that, if the certificate of seizure relating to the bicycle linking the appellant with offence is expunged, the existence of the bicycle would not be served. Again, if the sale receipt is li

expunged there would be no linkage between the appellant and the bicycle and the same applied to the receipt used for purchase of the bicycle. He therefore insisted that, the prosecution failed to prove the case beyond reasonable doubt and therefore the Court should allow the appeal. We have dispassionately considered the oral submission and we wish to point out at this juncture that, we shall deal with this matter in the following issues:

1. Whether there are exhibits which were admitted irregularly.
2. Whether the prosecution case was proved beyond reasonable doubt. The complaint in the first issue is that there are exhibits which were not properly admitted as they were not read out in court after their admission. This issue is not contested by the respondent. It is now trite law that, where it is intended to produce any document in evidence, the same has to be cleared first for admission and be actually admitted as part of the court record. Apart from that, the document admitted as exhibit must be read out in court: See Robinson Mwanjisi and 3 Others v. Republic [2003] TLR 218; Redempta Nyaonge Faustine v. Republic, [2024] TZCA 709; and James Beda v. The Director of Public Prosecutions [2022]

TZCA 70. Failure to do so is incurable and such documents would be liable for expungement. In the matter at hand, it is crystal clear from the record of appeal that, the sale of agreement between the appellant and PW7 (exhibit P4) at page 57; the sketch map (exhibit P7) at page 76; and the search warrant (exhibit P8) at page 88 were admitted without the trial court making orders for their contents to be read out in court. In other words, they were not read out after being admitted in court. It appears that this omission skipped the mind of both learned counsel as they would have prudently drawn the attention of the court for purposes of making the record right. The reason for such a requirement is not far fetched. The importance of reading the documents tendered as exhibits is to make the other party, in this case the appellant, get appraised with the nature of the documents so tendered in order to enable him prepare himself/herself his answers for or against such exhibits. Failure to do so denied the appellant the right to effectively prepare his defence. We, therefore, accordingly, expunge them from the record. We now turn to determine the issue whether the prosecution case was proved beyond reasonable doubt and more so, whether following the expungement of exhibits the remaining evidence suffices to prove the case.

Whereas Mr. Chiputula was of the view that the remaining evidence suffices to sustain the conviction, Mr. Mugwe held a different view. There is no dispute that the trial court relied heavily on circumstantial evidence to convict the appellant. It is trite law that in order for the court to find a conviction on circumstantial evidence, the court must be satisfied that such evidence irresistibly points to the guilty of the accused. (See: Juma Salum Singano v. Republic, [2009] TZCA 132; Mpunzu @ Elisha Mpanzu v. Republic, [2004] TZCA 3; and Lucas Daudi Wage v. Republic, [2024] TZCA 398). In the latter case, for instance, the Court relied on the case of Jimmy Runangaza v. Republic, [2018] TZCA 188, where the Court had to say: "In order for the circumstantial evidence to sustain a conviction, it must point irresistibly to the accused's guilt. (See: Simon Musoke v. Republic, [1958] EA 715). Sarkar on Evidence l& h Ed 2003 Report Vol. 1 page 63 also emphasized that on cases which rely on circumstantial evidence, such evidence must satisfy the following three sets which are:

1. The circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established;

2. Those circumstances should be of a definite tendency unerringly pointing towards the guilty of the accused; and

3. The circumstances taken cumulatively, should forma chain so, complete that there is no escape from the conclusion that within ai human probability the crime was committed by the accused and no one else." The issue that follows is, whether the circumstantial evidence in this case irresistibly points to the guilty of the appellant. The main evidence which linked the appellant with the offence was that the appellant sold the bicycle to PW7 that was used by the deceased before he met his death or rather, he sold it only two days after the incident of murder. This was testified by PW6, PW7 and PW8 who witnessed the sale transaction of the said bicycle. Apart from that, it was found that, the extra judicial and cautioned statements (exhibit P6 and P9 respectively) in which the appellant confessed to have committed the offence was corroborated by the evidence of PW6, PW7 and PW8 on that aspect. As it is, the prosecution evidence was that deceased was killed while he had a bicycle belonging to his father (PW3) who had sent him to pick groundnuts from the farm. Incidentally PW4 Noel Nassoro, corroborated the

evidence of PW3 since he saw the deceased on his way to and from the farm on 27th March 2019 while in possession of the said bicycle. He even gave his child some groundnuts. However, it turned out later that PW7, Said Ntila Said was found in possession of the same bicycle after having purchased it from the appellant, in a transaction that was witnessed by the former 2n d accused, Thabit Mohamed @ Mahikula, PW6 Samama Hamidu Ntila, the village Executive Officer of Mbarikiwa Village and PW8, Ntila Said Ntila, who was PW7's father. While the 2n d accused stood as the appellant's witness, PW8 was a witness for the purchaser. That, the appellant visited the Village Executive Officers' Office, was evidenced by his signature in the VEO's Office visitors book given to him by PW6 whereby he signed claiming he was the second accused's guest. The said visitor's book was admitted in evidence as exhibit P5 without any objection. The said bicycle was identified by PW3, the deceased's father who gave it to the deceased and PW13, Mohamed Issa Chimanje, who first sold it to PW3 and issued him a receipt. Clearly, the circumstantial evidence points a finger to the appellant. On the argument that the appellant's confessions corroborated the circumstantial evidence, we are aware of the appellant's claim that he was coerced to confess. However, we are in agreement with the trial courts' 16

rejection of that claim as an afterthought. We say so because, the appellant did not even object to their being tendered in court. The issue relating to anomalies in tendering confessions was dealt with in the case of Mashaka Juma @ Mtatula v. Republic [2022] TZCA 506 where we stated as follows: "The issues relating to anomalies in confessions intended to be tendered in court are required to be raised at the time of their tendering in court. This is important in order to enable the court to determine whether or not to conduct inquiry/trial within trial in order to ascertain them. In the matter at hand, neither the appellant nor his advocate raised it at that time. Failure to object to its admissibility at the time of its being tendered deprived the trial court and the prosecution the chance to consider the objection which might have been raised under section 169 now section ... (1) and (2) of the CPA which essentially provide for the manner of dealing with admission or otherwise o f evidence obtained in contravention of the law." In addition, in the case of Anna Moises Chissano (supra), we stated that:

"An accused is expected to challenge a witness's testimony by way o f cross examination or object to the tendering o f a documentary or physical exhibit during the trial. Once certain evidence goes into the record unchallenged, it is, in law, taken to have been admitted by the accused." Thus, guided by the above cited authorities, we find that the appellant cannot raise a complaint against his confessions which were admitted without being objected during the trial, that they were obtained through coercion because he did not raise it at the opportune time but he put it in his defence which was, as was rightly found by the trial court, an afterthought. We also wonder as the trial Judge did, why the appellant who was represented by an advocate did not object when the said statements were being tendered. All in all, considering the available circumstantial evidence, in the absence of any other explanation from the appellant, and having considered the effect of the expunged exhibits, we find that the remaining evidence, as discussed above, irresistibly leads to only one conclusion that, the appellant is the one who killed the deceased. There was a complaint that, there were contradictions on evidence of PW1 (Dr. Fredrick Mabena) and PW3 (the deceased's father) as regards the 18

injuries that were found on the deceased's body. The area of grievance is that while PW1 said there were bruises on the deceased's neck, arm and right thigh, PW3 said there were no injuries on the deceased's body. The learned State Attorney was of the view that, those were not contradictions and even if they exsisted they do not go to the root of the matter. We are mindful of the cardinal principle developed by this Court that where there are contradictions or inconsistencies in evidence, the court has to decide whether those contradictions or inconsistencies are only minor or whether they go to the root of the matter [See: Mohamed Said Matula v. Republic, [1995] TLR 3; Dickson Elia Nsamba Shapwata and Another v. Republic, [2008] TZCA 17. We have considered the so-called contradictions between the evidence of PW1 and PW3, and we think, they do not pass the threshhold of being contradictions. This is so because of the caliber of the witnesses. While PW1 was an expert in that area, PW3 was just an ordinary citizen. They could therefore perceive things differently on seeing the deceased's body. But again, looking at the alleged contradictions, it cannot with precision be taken as a contradictions as they do not go to the root of the matter that Tariki Issa Mohamed was, indeed, dead and that his death was unnatural.

Looking at the totality of the evidence, we are satisfied that the prosecution proved the case against the appellant beyond reasonable doubt. That said and done, we find that all grounds of appeal are devoid of merit and we dismiss them. In the final analysis, we, accordingly, dismiss the appeal in its entirety. Order accordingly. DATED at SONGEA this 14th day of October, 2025. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 15th day of September, 2025 in the presence of Mr. Kitara Mugwe, learned counsel for the Appellant, Mr. Kauli George Makasi, learned Senior State Attorney for the Respondent/Republic and Mr. Elias Nkwabi certified as a true copy of the original.