DOTT0 LUKALANGWA MAKEJE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CRIMINAL APPEAL NO. 15764 OF 2024 (Appeal from the Judgment of the District Court of Busega at Busega in Criminal Case No. 1107 of 2024) BETWEEN DOTTO LUKALANGWA @ MAKEJE………………………… APPELLANT VERSUS REPUBLIC………..…………………………………………RESPONDENT JUDGMENT 13th & 30th August, 2024. MASSAM, J. Before the Busega District Court at, the appellant herein above stood charged with the offence of gang robbery contrary to section 285(2) and 287 (c) of the Penal Code, Cap 16 R.E. 2022. The particulars of the offence as per the charge sheet were as such that, on the 19th day of December 2023, during the night hours at Lamadi village within Busega District in Simiyu, appellant and other persons who were not arrested during stealing did use actual violence and stole one mobile phone hot 10 made infinix valued at Tshs 200,000/= cash money Tshs 168,000/=a sack of rice 70 kgs valued at 1 Tshs. 140,000/= all total valued to Tshs. 508,000/=, all properties which belonged to Saire Samweli. The facts of the case were that, on the 19th day of December, 2023 at Lamadi village during the night hours accused being the boda-boda driver was hired by the Saire Samweli to take him to the nearest guest house. Appellant was using a motorcycle with registration No Mc 455 DZS make Sanlg. On their way they saw another motorcycle following them, after reached outside of the town victim forced the appellant to stop and ask him why he is taking him far from time while his interest was a nearby gest house as he was travelling the next day, the driver who was following them also stopped and appellant took the said sack of rice, his phone and money and run away with it, victim managed to report the matter to the Lamadi police station. The accused was arrested and after investigation the matter was taken to court and when the charge was read over to him, he denied to have committed the offence. At the trial, the prosecution prospered to prove their case beyond reasonable doubt and subsequently the appellant was convicted and sentenced to a term of thirty-(30) years imprisonment without fine. 2 Dissatisfied with both the judgment and sentence by the trial court, the appellant filed this appeal comprising five grounds of appeal as follows First, that the trial court erred in law and facts to pass conviction and sentence without proving the same beyond reasonable doubt. Second, that the trial court erred in law and facts to hear and determine the case which the complainant evidence did not collaborate with other prosecution witness to prove the commission of the offence. Third, the trial court erred to hear and determine the fabricated case as the complainant failed to recognise the mode of the motorcycle before and recognize it after saw the plate number. Fourth, the trial court erred in law and facts by determine the case by using the contradictory evidence as the value of the phone and the money stolen contradicts with the charge sheet. Firth, the trial court erred by determine the case with the different names of the complainant, in the charge sheet the name of the complainant is Saire Samwell while PW3 was introduced as Saile Samwel who are a different person. According to that he prayed to this court to allow this appeal, the judgment and sentence be set aside and the appellant be released from imprisonment. 3 During the hearing of this appeal, the same was argued orally and the appellant appeared in person, unrepresented while the respondent was represented by Mr. Saguye learned State Attorney. Arguing in support of his grounds of appeal, the appellant prayed for this court to consider his grounds of appeal and left him free. In response, the learned State Attorney for the respondent supported this appeal in ground no. 4 of the appeal because there was contradiction between the charge sheet and evidence testified especially in the issue of the value of money stolen. PW1 told this court that the money stolen was amounted to Tshs. 268,000/= while PW3 who was the victim and PW4 said that the amount of money stolen was Tshs. 168,000/=. He added that there was some contradiction with the value of phone stolen, the charge sheet said that the phone was amounted to Tshs. 200,000/= while the evidence said that the said phone amounted to Tshs. 240,000/= Mr. Saguya conceded that there was variance between the charge sheet and the evidence given. He stated that after prosecution side find out that there was variance between the evidence and charge sheet was required to amend the charge sheet in order to accord with the facts given 4 a but it didn’t, so failure of it make the said offence unproved as per Section 234 of the Criminal Procedure Act. Mr. Saguya added that the issue of identification also was not proved as the commission of the offence happened at 10.00pm night hours and victim said that he identified him through the light of the motorcycle which he did not say how strong was it regarding that appellant and victim were never met before. Also, the said motorcycle was not well described even by the owner. According to that Mr. Saguya said that he is supporting the appellant’s appeal and the appellant to be left free. This court has carefully considered the conceding arguments of respondent counsel Mr. Saguya that the offence against appellant was not proved beyond reasonable doubt. This court is aware that it is a trite law that onus of proving in criminal cases is always in the side of the prosecution, as elaborated in the case of Joseph John Makune vs. Republic (1986) TLR 44 at page 49 where the court of appeal held;- “the cardinal principle of our criminal law is that the burden is on the prosecution to prove its case, no duty is cast on the accused to prove his innocence. There are a few well known exceptions to this principle one example being where the accused raises the defense of 5 insanity in which case he must prove it on the balance of probabilities.’’ Also per Section 3 (2)(a) of The Evidence Act provides the standard of proof that "A fact is said to be proved when - (a) in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists;'' Again, Section 110 (1) of the Evidence Act provides that, "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist” See the case of Anthony Masanga vs. Penina (Mama Mgesi) and Another, Civil Appeal No. 118 of 2014. To be satisfied if the case at hand was proved beyond the reasonable doubt this court finds out that there was variances between the evidence given and the charge sheet in two issues first the value of the stolen money and the mobile phone, some of the witnesses said that the money stolen was valued to Tshs. 268,000/= while the charge sheet said that the stolen money was amounted to Tshs. 168,000/= And to the issue of mobile phone the charge sheet said that the phone was valued to Tshs. 200,000/= while the testified evidence said that the said phone was valued to Tshs. 240,000/= 6 so this court failed which one to follow. From the above analysis it’s clear that neither PW1, PW2 and PW3 and , PW4 had managed to prove the value of the stolen phone nor the money stolen, also no one testified that the same were found in possession with the appellant in order to prove that the said appellant was the one who stole the said properties. Again, this court found out that the identification of appellant by the victim was poor as it was night hours and the victim and appellant was the first day to meet so this court is doubting how could victim manage to identify someone who met him at the first day and it was night hours and in the circumstances like that of attacked and robbed. According to that this court is in support with the submission from the respondent that the identification of appellant was weak and this court could not regard on it. In the circumstances, this court is of the considered view that the trial court did not properly analyze the evidence given by the prosecution side as the same was contradictory and weak to be used to convict appellant as it was supported by the respondent’s submission. That make this court to have a view that the case was not proved beyond reasonable doubt and its hereby support the appellant submission that prosecution side failed to prove its case beyond reasonable doubt. 7 I accordingly, allow the appeal, quash the conviction and set aside the sentence meted by the trial court, subsequently order an immediate release of the appellant from prison unless other lawfully held. It is so ordered. DATED at SHINYANGA this 30th Day of August, 2024. R.B. Massam JUDGE 8