Judgment Criminal Appeal No 20050 of 2024

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL N0. 20050 OF 2024 (Appeal from the decision In the Resident Magistrate’s Court of Kivukoni at Kinondoni given before (Hon. F.S Kiswaga -PRM) dated on 28th day of December,2023 Originating from Economic Case No. 03 of 2024) BENO DAMIAN CHAWALA……...………………. ……. APPELLANT VERSUS THE REPUBLIC…………. ………………………............RESPONDENT JUDGMENT MKWIZU,J: The accused, Beno Damian Chawala, faces two grave charges in this matter. The first count pertains to the unlawful possession of ammunition, which stands in violation of Section 21(a) of the Firearms and Ammunition Control Act No. 2 of 2015, together with Paragraph 31 of the First Schedule, as well as Sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap. 200 R.E. 2019]. The second count concerns the unlawful possession of a firearm, specifically contravening Section 20(a) of the aforementioned Firearms and Ammunition Control 1|Page Act, read together with paragraph 31 of the First Schedule and sections 57(1) and 60(2) both of the Economic and Organised Crime Control Act [Cap 200 R: E 2019 The prosecution asserts that on April 1, 2022, in Msakuzi Kibamba, within the jurisdiction of Ubungo District in the Dar es Salaam region, the accused was apprehended in possession of 17 live rounds of ammunition, caliber 7.65mm, and a Browning pistol, also of caliber 7.65mm, all found in his possession without the requisite valid permit or license. Upon reading the charges presented, the accused firmly denied any wrongdoing regarding the alleged offences. Following a full trial, the appellant was convicted and sentenced to twenty (20) years in prison. He is dissatisfied with the trial's decision and has raised four grounds of appeal, detailed as follows: 1. The learned trial magistrate erred in law by holding the appellant’s conviction without considering that the search and seizure of the pistol browning and 17 pieces of ammunition was improperly conducted since no search order was tendered during the trial search warrant. 2. That the learned trial magistrate erred in law and fact by holding the appellant’s conviction while the chain of custody is contradictory 2|Page and broken. 3. That the learned trial magistrate grossly erred in law by holding the appellant’s conviction relying on the cautioned statement (Exh P.7) which was obtained illegally. 4. That the learned trial magistrate erred in holding the appellant’s conviction without considering that the case for the prosecution was not proved beyond a reasonable doubt. The appeal was heard through written submissions. Both parties submitted their submissions. In response, the respondent supported the conviction and sentence, contesting the appeal. Addressing the first ground of appeal, the appellant contends that the evidence presented by the prosecution during the trial fell short of the required standard of proof. The appellant asserts that while the search of their residence yielded the alleged contraband, specifically the Pistol (Exh. P2) and 17 rounds of ammunition (Exh. P3), this search was conducted in violation of Section 38(1) of the Criminal Procedure Act, Cap 20 R.E. 2019 (CPA). No search warrant was obtained prior to the execution of the search, and the appellant was not provided with a receipt acknowledging the seizure of the pistol and the accompanying rounds of ammunition, as mandated by Section 38(3) of the CPA. He cited the case of Ndugulile Page 3 |Mandango V. Republic, Criminal Appeal No.58 of 2019, CAT at Mbeya and Joseph Charles Bundala V. Republic, Criminal Appeal No. 15 of 2020 (All unreported) He believes that the search conducted by PW1 was not an emergency and should not have been treated as such. He said after the appellant's arrest on March 29, 2022, he remained in custody until April 1, 2022, when Mohamed Hamis was arrested, naming him(appellant) as the one in possession of the pistol. It was this process, according to the prosecution evidence that necessitated a further interrogation culminating into the searching on his house where a pistol and 17 rounds of ammunition were found. The appellant contends the search was illegal due to the absence of a search warrant or order. Secondly, he argues that section 38(1) of the CPA requires a search to be conducted by or under the written permission of a police station's officer in charge. However, in this case, the search as performed by Pw1, who was neither an officer in charge of a police station nor did he have any written authorization to perform the search. Given that the search was conducted illegally, any evidence obtained during that search should not be allowed in court. Therefore, the appellant requests that the court exclude the seizure certificate (Exh. P1), the pistol (Exh. P2), and the 17 4 |rounds P a g e of ammunition (Exh. P3) that were obtained during the illegal search under section 169 of the CPA. He referred this court to the case of Shabani Said Kindamba V. Republic, Criminal Appeal No.390 of 2019 CAT at Mtwara (unreported), in which the court of appeal on pages 14- 15 of the judgment enumerated the importance of the search warrant to the suspect. In the second ground of appeal, the appellant contended that the chain of custody of the alleged pistol and 17 rounds of ammunition (Exh. P2 and P3) was compromised and contradictory. Firstly, the testimonies of Pw1, Pw2, Pw4, and Pw6 are contradictory on who took the pistol and 17 rounds of ammunition to the Barrister Laboratory for examination. He in elaboration said, PW1’s evidence shows that he directed investigation officer Sgt. Prosper to take the exhibits to the Barrister Laboratory to examine the gun and ammunition we seized and Sgt. Diamond gave him feedback that he took them to the baristic laboratory. Pw2 (Sgt. Diamond) at page 25 of the typed proceedings, informed the court that on 8.4.2022 Insp. Alfred took the exhibits, i.e. pistol, magazine and 17 ammunitions, to the forensic bureau for ballistic examination. Whereas Pw4 a Barristic officer at page 32 of the typed proceedings named -Sgt. Prosper of Kimara Police station as the officer who had brought to him the exhibits 5 |had Pagae letter, pistol and ammunition. And , Pw6 (Sgt. Prosper) at page 44 of the typed proceeding asserts to have taken the exhibit from Sgt Diamond on 08.04.2022 that pistol makes browning black, 17 ammunitions and one magazine and took them to Ballistic department for examination. Based on these testimonies, it is argued that it is common sense that four individuals present at the same location, date, and time, observing the same events, should not provide fundamentally contradictory accounts of their observations or actions. He relied on MATIKU V. Republic (1995) T.L.R 3; MATHIAS TIMOTHY V.R (1984) T.L.R 84 and Beda Philipo V. Republic, Criminal Appeal No.114 of 2009 (unreported), stressing that the contradictions by the prosecution witnesses on the chain of custody are major, should be resolved in the appellant’s favour. The appellant contends that the trial magistrate erred by relying solely on the credibility of the prosecution witnesses without ensuring there was sufficient evidence to prove beyond reasonable doubt that the appellant was found in possession of a pistol and 17 rounds of ammunition. The testimonies from prosecution witnesses PW1, PW2, PW3, PW5, and PW6 regarding the description of the bags used to hold the ammunition were inconsistent. For instance, PW1 referred to a “small 6 |bag” P a g e(mfuko mbadala), while PW2 described it as a “small nylon bag with 15 rounds,” and other witnesses provided differing accounts, yet no bags were presented to determine their capacity to contain the pistol and ammunition. He added that while PW1 claimed to have immediately handed over the pistol and ammunition (Exhibits P2 and P3) to PW2, who subsequently forwarded them to PW4 for examination before returning them to PW2 as custodian, an important witness, D/C Michael, who acted as custodian during PW2’s absence, was not called to testify. The absence of D/C Michael left a significant gap in the chain of custody, as the record fails to explain how the exhibits were transferred from him to the court. He cited the case of Hemed Said v. Mohamed Mbilu (1984) T.L.R 113, arguing that the prosecution's failure to call a material witness like D/C Michael could have allowed the court to draw an adverse inference, suggesting that if he had been summoned, his testimony might have contradicted the prosecution's case. As such, the appellant requests that the second ground of appeal be allowed due to the unexplained absence of key evidence and witness testimony. With regard to the third ground of appeal, it is asserted that the cautioned statement (Exhibit P7) was obtained after the permissible timeframe, specifically three days post-arrest, in violation of sections 50 7 |and P a g e51 of the Criminal Procedure Act (CPA). It was stated that the appellant was apprehended on 29 March 2022, yet the cautioned statement was not recorded until 01 April 2022, following a search of his residence. He cited several cases to support his argument, including Emilian Aidan Fungo @ Alex and Another v. R, Criminal Appeal No. 51 of 2010, Court of Appeal at Dar es Salaam; Mussa Mustapha Kusa and Another v. R, Criminal Appeal No. 126 of 2011, Court of Appeal at Dar es Salaam; and Hamis Juma @ Nyambanga and Others v. R, Criminal Appeal No. 261 of 2011, Court of Appeal at Mbeya (all unreported), emphasising that the cautioned statement dated 1 April 2022 exceeded the initial four-hour period mandated by law and is therefore not worthy of reliance; hence, Exhibit P7 should be expunged from the record. On the fourth ground of appeal, it is submitted that the burden of proof in criminal proceedings universally rests with the prosecution, which must establish its case beyond a reasonable doubt. In instances where the burden shifts to the accused, the requisite standard of proof is reduced to a balance of probabilities, as articulated in Okare v. R (1995) EA 555, Said Hemed v. R (1987) TLR 117, and Mohamed Said Matula v. R (1995) TLR,3. The appellants argue that contradictions during the 8|Page proceedings highlight insufficient proof beyond a reasonable doubt of the appellant’s alleged possession of the pistol and 17 rounds of ammunition. He requests that the court grant the appeal. In response to the first ground of appeal, Ms Mossie Kaima, the learned State Attorney, contended that the search was lawful despite the absence of a warrant or order. Ms Kaima noted that the cited cases do not apply to the current scenario. She acknowledged that, although the search was conducted based on information received at the police station regarding a co-accused in an armed robbery case, this situation fell within the provisions of Section 38(1) of the Criminal Procedure Act, allowing an officer in charge to authorise a search without a warrant. For clarity, she stated that the officer conducting the search, who held the rank of Assistant Inspector and was in charge of the police station, had the legal authority to carry out the search based on reasonable suspicion that the items in question specifically, a pistol and ammunition—were at risk of destruction or concealment. Addressing the second ground of appeal, where the appellant claimed a broken chain of custody due to contradictions among witnesses, Ms Kaima contended that any inconsistencies were minor and attributable to human error, particularly given the time lapse since the incident. All 9|Page witnesses were able to consistently identify the firearm and ammunition, indicating that the evidence remained intact throughout the process. She argued that minor discrepancies do not undermine the credibility of the prosecution's case. To her the firearms are inherently unique and challenging to exchange, further supporting the integrity of the evidence presented against the appellant. She invited the court to affirm the legality of the search and the validity of the evidence. She supported her argument with the case of Joseph Leornard Manyota vs Republic, Criminal Appeal no 485 of 2017 TZCA (Tanzlii) .She added that although there is a minor contradiction among the four witnesses from whom a witness receives or gives (exhibits P2, P3, and P4), when the entire testimony of the witnesses is considered, it becomes clear that the chain of custody was well established despite the absence of paperwork for exhibits P1 to P3. Submitting on PW1's failure to state where PW1 got the exhibit before tendering it before the court, the learned State Attorney relied on DEUS JOSIAS KILALA @DEO (supra), stressing that a witness who, at one point in time, possessed any item that is a subject matter of a trial is not only a competent witness to testify on that thing but also competent to tender it in evidence. She prayed that the court would regard this ground 10as | P abaseless g based on the circumstances of the case. Regarding the challenge to the legality of the cautioned statement in the third ground, the learned state attorney submitted that the appellant's unlawful possession of firearms and ammunition was revealed three days after his initial arrest for armed robbery. She readily conceded that the appellant's cautioned statement was recorded beyond the four- hour period, contrary to Sections 50 and 51 of the Criminal Procedure Act. However, the learned State Attorney maintained that the magistrate did not base his analysis on Exhibit 7 (the caution statement). Consequently, even if this exhibit were expunged from the record, there remains strong evidence supporting the appellant's conviction. In regard to the final ground of appeal, the respondent argued that the prosecution satisfactorily established a case against the appellant beyond a reasonable doubt, consistent with the burden of proof outlined in section 3 of the Evidence Act [CAP 6 R.E. 2022] and as reaffirmed in William Ntumbi v. Director of Public Prosecutions, Criminal Appeal 320 of 2019 [2022] TZCA 72 (TanzLII). Citing Goodluck Kyando v. Republic [2006] TLR 363, where it was posited that "every witness is entitled to credence unless there are good reasons to the contrary," . The learned State Attorney asserted that all six prosecution witnesses provided 11compelling |Pag and credible testimony. They detailed the procedures followed in collecting information regarding the appellant’s alleged possession of firearms, describing how the search was conducted together with PW3, a local leader who was present during the operation. Additionally, PW5, the appellant’s landlady, affirmed that the appellant was indeed her tenant in the room where the weapons were discovered and confirmed that a receipt was prepared for the search. And all prosecution witnesses reliably identified Exhibits P1, P2, and P4 in court. Based on this strong evidential foundation, the State Attorney concluded that the prosecution's case was proved beyond reasonable doubt. Consequently, she urged the court to dismiss the appeal as lacking in merit and to uphold the conviction of the appellant. In rejoinder, the appellant reiterated his submission in chief, insisting that the prosecution/respondent had misinterpreted section 38 of the Criminal Procedure Act and the prosecution failed to prove the case beyond a reasonable doubt. Therefore, he urged the court to allow his appeal. I have evaluated the appeal, the grounds set forth by the appellant and the trial court records. The first issue challenges the search and seizure for being violative of section 38 of the Criminal Procedure Act. 12Section |Pag 38 of the Criminal Procedure Act . Thus, the issue remains whether the officers acted within the boundaries defined by this provision. Section 38(1) of the Criminal Procedure Act [Cap 20 R.E. 2019] (the CPA) provides as follows: "38 -(1) Where a police officer in charge of a police station is satisfied that there is reasonable ground for suspecting that there is in any building, vessel, carriage, box, receptacle or place- (a) anything with respect to which an offence has been committed; (b) anything in respect of which there are reasonable grounds to believe that it will afford evidence as to the commission of an offence; (c) anything in respect of which there are reasonable grounds to believe that it is intended to be used for the purpose of committing an offence, and the officer is satisfied that any delay would result in the removal or destruction of that thing or would endanger life or property, he m ay search or issue a w ritten authority to any police officer under him to search the building, vessel, carriage, box, 13 | P a g receptacle or place as the case may be." The provision above is specific to the point; for a search into private premises to be a lawful search, it must be conducted by either an officer in charge of a police station or another police officer with a search warrant. Three things are obvious in this case,one, a search was supervised by Pw1, A/ Inspector Alfred, a police officer in charge of the Gogoni Police Station, as evidence by his own evidence where he said “I was in charge of the station. I couldn’t issue search order to the in charge who is myself.” This fact was supported by PW6 F 3754 S//SGT Proper at page 42 of the proceeding where he confirmed to have accompanied A/Inspector Alfred( PW1) the officer incharge of the police station to the accused’s home. Secondly , according to PW1, the information on the armed robbery was reported to the police station on 28/3/2022; the appellant was arrested on 29/3/2022 and assisted by the appellant; they managed to recover the stolen vehicle, mentioning Mohamed Hamisi , accused associate and the person in in possession of the gun used in the said armed robbery. However, the recovery of the gun and ammunition came after the arrest of Mohamed Hamisi on 1/4/2022, who then mentioned the appellant as the person in possession of the gun and the ammunition, specifically disclosing to the police his intent to remove from the 14 | P a g appellant's house the said gun and ammunitions. Testifying on this point, PW1 at page 18 of the typed proceedings said: “…On 1/4/2022 at 8.am, we successfully arrested Mohamed Hamis at Mbezi Msakuzi… …He also told us was making folloup to know home of Beno Damian Chawala in order to break his home and took the gun because on the incident date he said Beno Damian Chawala left with the gun and ammunitions. He told us that there are vpeople he planted to go to the police, talk with Beno so that he may know his home where he kept keys” The above situation, I think, necessitated a prompt search that resulted in the recovery of exhibits P2, P3 and P4. So, given the circumstances of this case, I agree with the learned State Attorney that the officer who held the rank of Assistant Inspector and an in charge of the police station had the legal authority to carry out the search based on reasonable suspicion that the items in question specifically, a pistol and which were at risk of destruction or concealment without a warrant. Thirdly, independent witnesses, namely PW3 and PW5, were involved during the search process, adding credence to the prosecution evidence and the procedures taken. 15 | P a g On the 2nd grounds, the appellants say the evidence on the chain of custody is contradictory and broken. The settled rule is, where the testimonies by witnesses contain inconsistencies and contradictions as rightly stated by the state attorney the court has a duty to address and try to resolve them where possible, else the Court has to decide whether they are minor or go to the root of the case. See the case of Mohamed Said Matula V. R, (1995) TLR 3 (CAT) and John Glikola Vs. R, Criminal Appeal No. 31 of 1999 (CAT unreported). And rules governing the chain of custody entails that, there should be an assurance that the exhibit seized from the suspect is the same, with which the Chief Government Chemist has analyzed, and it is the same that has been tendered in Court. See the case Chacha Jeremiah Murimi & Others vs. Republic (Criminal Appeal 551 of 2015) [2019] TZCA 52(4th April 2019), the Court observed that; I n order to have a solid chain of custody it is im portant to follow carefully the handling of w hat is seized from the suspect up to the tim e of laboratory analysis, until finally the ex hibit seized is received in court as evidence. There should be assurance that the exhibit seized from the suspect is the same which has been analyzed by the Chief 16 | P a g Government Chemist. The movement of the exhibit from one person to another should be handled with great care to eliminate any possibility that there may have been tampering of that exhibit. The chances of tampering in the Government Laboratory analysis should also be eliminated. Generally, there should be no vital missing link in handling the exhibit from the time it was seized in the hands of the suspect to the time of chemical analysis, until finally received as evidence in court after being satisfied that there was no meddling or tampering done in the whole process. In this case, PW1 (Insp Alfred) was involved in ceasing one pisto make browning with two magazines and 15 ammunitions kept in a tiny bag. The items that ceased were recorded in the seizure certificate. From the scene, he headed to the police station, where he opened the case filed with number KMR/IR/2479/2022 against the accused and handed the exhibits to the exhibit's keeper, Sgt Diamond. He also directed investigation officer Sgt Prosper to take the exhibits to the Barrister laboratory to examine the gun and ammunition seized. In his evidence, the exhibit Keeper SSGT Daimond ( PW2) told the court that on 1/4/2022 at around 14:00 pm, he was handled exhibits by A/Insp Alfred(PW1), namely one pistol made browning with no serial number. 17 | P a g The pistol had a magazine with two ammunitions. And one small bag red in colour with 15 ammunitions. All the exhibits were labelled KMR/IR/2479/2022, and they both signed the occurrence book( OB) register and the chain of custody form. He then entered the said exhibit in the exhibit register and labelled the pistol with Register number 60/2022, and the Nailon was only registered with the KMR/IR/2479/2022. He finally took the exhibit to the army room popularly called “Amari “. He also confirmed that he was the only one foreseeing the exhibit room, so he stayed with the key. On 8 April 2022, Insp Alfred collected a pistol, a magazine, and 17 rounds of ammunition for examination at the forensic bureau. On 29 April 2022, he returned the exhibits: a Browning pistol, one magazine, 16 additional magazines, and one magazine cartridge. A/Insp Alfred informed him that one magazine and one round of ammunition had been used to test the pistol. They then signed the chain of custody form and the OB. On 8/4/2022 at 8 am, PW6 testified that he took from Sgt Diamond the exhibit pistol made browning black,17 ammunition and one magazine he took to the Ballistic department; he handled to detective WP Glory (PW4) On 29/4/2022, he was telephoned to go to take the report and exhibits. Pw4, WP Glory testified that on 8/4/2022, Sgt Prosper of Kimara Police 18 | P a g Station visited the Ballistic office with a letter requesting the examination of the pistol and the ammunition to ascertain their type and whether they were functional. He also submitted a pistol and ammunition to her. She received them and initially labelled them. The pistol was labelled K1, while the 17 rounds of ammunition were labelled K2 to K18. She took one round of ammunition, inserted it into the pistol, and fired it, observing that both the pistol and the ammunition were operational. She described the pistol as a Browning type with a 7.65mm calibre, labelled K1 in the case file, along with the 16 rounds of ammunition, also 7.65mm calibre, and one cartridge that remained after she had fired one round of ammunition, all kept in one plastic bag. After the examination, she prepared a report and telephoned Sgt Prosper to come and collect the report and the exhibits. Though it is correct, as complained by the appellant, that there is a slight contradiction regarding who took the exhibits from the exhibit keeper, specifically between PW1 and PW6, a close examination reveals that the contradictions are minor and do not go to the root of the case. According to his evidence, PW1 stated explicitly that he instructed PW6 to take the exhibits to the Government Ballistic Bureau. PW6 confirms that he took them from the exhibit keeper to PW4 (WP Glory), a firearm examiner, who affirms that she received the said exhibit from PW6. Additionally, the evidence is clear that the pistol and 17 ammunitions were examined by 19 | P a g WP Glory (PW4) and returned, along with the report, to Sgt Prosper (PW6). The said report was tendered in court and admitted before the trial court. I do not find any material contradictions and inconsistencies going to the root of the case, as the appellant would like this court to believe. The second ground of appeal has no merit. The appellant also raises three additional points on this ground. One point is that the testimonies from prosecution witnesses (PW1, PW2, PW3, PW5, and PW6) regarding the description of the bags found with the ammunition were inconsistent. Indeed, inconsistencies are observed; PW1 referred to it as a "small bag," while PW2 specified a "small nylon bag with 15 ammunitions." the ten-cell leader (PW3), who witnessed the search at the appellant's house, identifying it as a nylon bag. PW5 described it as a small white plastic bag, and PW6 also referred to it as a soft white nylon bag. Despite these variations in the descriptions of the bags, they all converge on one point: that the bag was found in the appellant's room with ammunition. It is a well-established principle that discrepancies and inconsistencies in a witness's statement or testimony are considered fatal only if they are fundamental going to the root of the matter. If they have a negligible impact, then they should be ignored. In Luziro s/o Sichone v. Republic, Criminal Appeal No. 231 of 2010 20 | P a g (unreported), the Court of Appeal held: " We shall remain alive to the fact that not every discrepancy or inconsistency in witness's evidence is fatal to the case, minor discrepancies on detail or due to lapses of memory on account of passages of time should always be disregarded. It is only fundamental discrepancies going to discredit the witness which count." The decision in the case above followed the precedent of another commendable ruling by the Court of Appeal of Tanzania in Disckson Elia Nsamba Shapwata and Another v. Republic, Criminal Appeal No. 92 of 2007 (unreported), in which a reference was made to the passage in Sarkar, Code of Civil Procedure. It was held as follows: "Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to material disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a parties' case material 21 | P a g discrepancies do." I do not find any effect of the pointed-out inconsistencies, as they are trivial. The variation in evidence did not undermine the central fact that the pistol and 17 rounds of ammunition were found in the appellant's room, which is the key issue upon which the accusations against the appellant are grounded. The second critical point is the conspicuous lack of physical evidence concerning the bags mentioned in witness testimonies. No actual bags were presented in court to assess their capacity to hold the pistol and ammunition. While this absence may raise questions, it is crucial to recognise that this issue should not unduly prolong the proceedings. The prosecution's case rests on the gravity of the charges at hand, unlawful possession of firearms, which hinge on the credibility and coherence of the evidence presented rather than the physical presence of every item purportedly connected to the crime. The witnesses provided detailed accounts of the events surrounding the alleged offences, and their testimonies collectively painted a compelling picture of the circumstances leading to the accused's apprehension. 22 | P a g In this context, the absence of the nylon bag does not diminish the strength of the prosecution’s case. The prosecution’s objective is to establish a clear link between the accused and the criminal activity; it is not to present every piece of evidence in a vacuum. As stated, the prosecution witnesses PW1, PW3, PW5, and PW6 all testified in court that they recovered 17 rounds of ammunition and a pistol in the accused person's room during a search conducted in the presence of the accused /appellant. PW1 explained in court how he began the investigation, arrested the accused, visited the accused's home, met with the appellant’s landlady, PW5, and called the local public leader, PW3, before starting the search of the accused person's room. PW1 provided a detailed account of how he searched the room until he found the pistol and ammunition hidden in the ceiling board. Similarly, the landlady informed the court of how the police approached her, made preparations before searching, and subsequently searched the entire room. After the pistol and ammunition were seized and taken to the firearms examiner (PW4), she tested one round of ammunition using the same pistol by firing it. She confirmed that it was the same firearm along with live ammunition. The certificate of seizure (exhibit P1), which was signed by PW1, PW3, PW5, and the accused person, serves as documentary proof of the exhibits they seized. The core elements of the case regarding the actions, intent, and 23 | P a g circumstances of the accused remain robust and adequately supported by the evidence. The final point in the second ground pertains to the absence of a crucial witness, D/C Michael, who functioned as the custodian of exhibits during PW2's absence. His failure to testify introduces a notable gap in the chain of custody. However, it is essential to note that the prosecution's case does not hinge solely on D/C Michael's testimony. The prosecution's duty, as stated above, was to establish its case by meeting the requisite standard of proof supported by credible and substantial evidence. The focus being not merely on the number of witnesses presented but, on the quality, and relevance of the testimonies provided in court. See section 143 of the Evidence Act [Cap 6 R.E 2022] and the decision in Yohanes Msigwa vs. R (1990) TLR 148, the absence of a witness does not inherently weaken the prosecution's position unless the testimony of that witness pertains to a pivotal aspect of the case. In this instance, the challenge raised by the appellant regarding D/C Michael's absence lacks significant merit. While his testimony may have added value, its absence does not detract from the overall strength of the prosecution's case. The prosecution has sufficiently established its 24 | P a g narrative through the testimonies of other witnesses, which are adequate to support the case's core allegations. The third ground of appeal challenges the admissibility of the cautioned statement, asserting that it was admitted in violation of sections 50 and 51 of the Criminal Procedure Act [CAP 20 R.E (2022)]. The accused was arrested on 29th March 2022, but his statement was not recorded until 1st April 2022, raising concerns due to the absence of an explanation for the delay, which the state attorney acknowledged. This delay contravenes the legal requirements and undermines the reliability of the evidence. I, therefore, agree with both parties that Exhibit P7 was improperly obtained and proceed to expunge it from the records. Despite excluding the appellant’s cautioned statement from the evidence, the remaining evidence on record supports the appellant's conviction. This brings me to the final argument, which asserts that the prosecution's case is unproven. As I stated prior, the burden of proof is on the prosecution side and the standard of proof is beyond reasonable doubt. A thorough examination of evidence by the prosecution establishes the guilt of the appellant to the required standards. PW1, the investigator, testified about 25 | P a g an armed robbery reported on 28/03/2022 at Mbezi Msakuzi, where thieves used a gun to steal a motor vehicle. He identified Beno Damian Chawala and his colleagues as suspects. On 29/03/2022, an appellant was arrested. He confessed his involvement and led them to the hidden vehicle. The police sought permission from the appellant’s landlady, PW5. They called the local public leader, PW3, to witness a search at the appellant's house where a pistol and a bag in the ceiling containing 15 rounds of ammunition (exhibits P2, P3 and P5)were recovered in the appellants presence. Sgt. Diamon (PW2) received the exhibits, which ballistic expert PW4 later examined. The examination confirmed the firearm's functionality and the ammunition’s calibre. The prosecution presented the seized items in court, including a seizure certificate. In his defence, the appellant (DW1) claimed he was wrongfully arrested and denied ownership of the firearm and ammunition, arguing discrepancies in the testimonies regarding the colour and details of the gun. The court considered the prosecution's evidence, including testimony from multiple witnesses affirming the discovery of the firearm and ammunition in the appellant’s room. Despite the appellant’s defence, the prosecution's witnesses were found to be credible and reliable, supporting the charges against him. I support the trial court's findings. The evidence 26 | P a g presented is credible, and like the trial court, I find no reason to disbelieve the prosecution’s witnesses. The appeal is thus found unmeritorious. The trial court's decision is hereby upheld, and the appeal is dismissed in its entirety. Order accordingly. DATED at DAR ES SALAAM, this 7th MARCH 2025 E.Y. MKWIZU JUDGE 27 | P a g