CRIMINAL APPEAL JEREMIAH ELIAS

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 20205 OF 2024 CASE REFERENCE NO. 202407192000020205 (Arising from Criminal Case No. 177 of2022 of the District Court of Tarime at Tarime) BETWEEN JEREMIAH ELIAS....................................................................... APPELLANT VERSUS REPUBLIC................................................................................ RESPONDENT JUDGMENT 2(7 November & 11 December, 2024 M, L. KOMBA, J.: The appellant herein was convicted of the offence of armed robbery contrary to section 287A of the Penal Code, [Cap 16 R.E 2022]. Upon conviction after a full trial, he was sentenced to thirty years (30) imprisonment. Appellant was aggrieved hence, this appeal. In brief, facts of the case go like this; On 06/08/2022 at Kiwanja village within Tarime District, in Mara Region PW1 who parked his motorcycle waiting for passengers (bodaboda) at zero-zero area in Nyamongo. He then approached by the appellant who was a passenger wanted to go at Keraha petrol Station. Upon conclusion of the deal, PW1 took appellant to the place he mentioned. Page 1 of 14 However, when arrived at Kenyaitanka, appellant demanded to be taken to Kenyaitanka. On the way when they passed the bridge, it was alleged by prosecution that appellant stopped PW1, gave him TZS 5,000/ and demanded for his balance. When PW1 was reaching his pocket to serve his passenger who is appellant herein, appellant took knife stabbed PW1 on nose and on thigh then he falls down. Appellant ran with the motorcycle. PW1 was treated by PW3 at Nyamongo Health centre. The motorcycle was found at the garage and through informers, the appellant was arrested, tried and sentenced as narrated. Aggrieved by the said decision, the appellant is here searching for justice in way of appeal equipped with six (6) grounds of appeal which reads as follows; 1. That, the presiding magistrate unreasonably failed to imitate and consider the defence of the appellant Hence gone contrary to the required procedure it vitiated both judgment and proceedings and make it nullity, (sic) 2. That, the recent possession doctrine was wrongly involved hence i. The ownership was not proved beyond flick of doubt. ii. The property is identification procedures were not observed hence the complainant was shown before being mentioning the unique mark of the item, (sic) Page 2 of 14 See the case of OMARY LUGIKO NDAKI @ NELA Z R, Cr. App! No. 554/2015page no. 11 and 12 3. That, the trial magistrate relied and acted upon the documentary evidence while were not audibly read put out from after been admitted. AH such exhibit caught to be expunged from court records, (sic) 4. That, the presiding magistrate acted upon unreliable visual identification due to the fact that the complainant failed to explain the source of light, where it was positioned and light intensity. See the authority from the case of RAYMOND FRANCIS V. R (1994) TLR103. 5. That, the lower court did convict the appellant by relying and acting upon discrepancy and inconsistence piece of evidence. Particularly when the item was allegedly recovered and/when the incident took place. According to the case digestion of the magistrate indicates the recovering of the item happened first before the incident taking place. 6. That, the prosecution case was not proved beyond all flicks of doubt. When the matter was scheduled for hearing, appellant stood solo without any representation and prayed this court to adopt his petition of appeal while Republic was represented by Ms. Grace Madikenya, Senior State Attorney. Page 3 of 14 Ms. Grace opted to argue each ground separately starting with the 1st ground and admitting that in a way defence of the appellant was not considered in a judgment. This being a 1st appellate court and basing on a decision in Athman Musa vs Republic, Criminal Appeal No. 04 of 2020 she prayed this court to enter into shoes of the trial court and analyse evidence in defence. On the 2nd ground where the appellant disputed the doctrine of recent possession as the motorcycle was not seen or was not found with him, State Attorney elaborated how the doctrine of recent possession is applicable, that prosecution is supposed to prove the accused was found with a stolen property which was from the complainant. In the case at hand, she submitted that PW1 testified how appellant stole the motorcycle Sun LG red in color with registration number MC 849 DEL. Further, PW2 testified that he arrested appellant with motorcycle with registration number as mentioned by the victim who was PW1 all those occurred in the same day. She went on submitting that during hearing PW1 tendered motor cycle as an exhibit together with its registration card as Exhibit P3, payment receipt Exhibit P2 that motorcycle was bought by PW1 and tendered the contract of ownership as exhibit Pl. She urges me to read page 11 of Page 4 of 14 the proceedings where all exhibits were recorded. She insisted that motorcycle was found in possession of the appellant. Citing the case of Godfrey Lucas vs Republic, Criminal Appeal 23 of 2023 where the Court was of the position that when prosecution prove the doctrine of recent possession it must be proved the property was found to the accused, it belongs to the complainant and the property was stolen. She said all these conditions were met in the prosecution side and therefore she prayed this court to find the ground lacks merit. Submitting for the 3rd ground, she insisted there were six (6) documentary exhibits and all were read in court as per proceedings. Starting with Exh Pl was recorded at page 11 of the proceedings, Exhibit P2 was read at page 11, Exhibit P3 which was motorcycle card was read at page 22, further at page 26 exhibit P4 certificate of seizure was read, Exhibit P5 which is PF 3 and Exhibit P6 which is caution statement were read at page 33. It was her position that there is no need to expunge exhibit as was admitted as per law and there was clearance before admission. The 4th ground was fended that PW1 at page 8-14 explained what happened on the fateful day around 05:50 am when he got passenger they bargain on price and they used like 5 minutes, he knows the Page 5 of 14 appellant as his fellow bodoboda driver who doing his business at Nyamongo. Further she submitted that when victim was approached by appellant he parked at the lodge where there was electricity tube light with bright light and distance from the lodge to where he packed is like 5 footsteps. Further at the bridge of Kenyaitanka, they bargain about the balance and they spend like 10 mins and when he was looking for change appellant used knife to stub PW1. It was around 06:30 am when police were informed of the motorcycle which was found at the garage of PW4. That was few hours after the event. Police took appellant and the motorcycle to police station where after short time victim identified his motorcycle. Appellant was correctly t identified. The counsel prayed this court to find the ground lacks merit. The state attorney combined 5th and 6th ground explaining that in proving armed robbery there must be a property stolen by the use of force or weapon. She submitted that PW1 testified that at the bridge appellant took knife and stubbed him on face and thigh and took motorcycle. She said there was a use of weapon and stealing. Further, when asked by PW4 about the ownership of the motorcycle, appellant failed to give information concerning it because he stole it. He failed to Page 6 of 14 prove ownership. On the other side she said PW1 who was the victim managed to tender all document to prove ownership of the motorcycle. She went on submitting that caution statement shows appellant admit to commit crime and appellant did not object when statement was tendered, neither cross-examined prosecution witnesses when testify in court for the purpose of creating doubts. State Attorney supplied this court with Flano Al ph once Masalu and four Others vs Republic, Criminal Appeal No. 366 of 2018 where the Court elaborated key elements of the armed robbery which she said prosecution managed to prove. Victim was injured and PW3 attended victim and PF3 was tendered and admitted without objection. She insisted the offence was proved at the required standard and prayed the court to find the appeal lacks merit and allow appellant to proceed with punishment as uttered by the trial court. I have serenely considered the submission by State Attorney in the light of the petition of appeal. I am now in a position to confront this appeal for determination as appearing in the grounds of appeal raised. At the outset, let it be known that in criminal cases, it is upon the prosecution to prove its case against an accused person as provided in section 3(2)(a) of the Evidence Act, CAP 6. This being a criminal case, the Page 7 of 14 standard is beyond reasonable doubts. See Festo Komba vs Republic, Criminal Appeal No. 77 of 2015, Court of Appeal of Tanzania. On the first ground appellant complained that his defence was not considered and State Attorney conceded on that ground. I had time to read the judgment and find accused denied to be beaten by civilians while he was arrested, he denied to be taken to hospital as testified by PW2 as he failed to inform the trial court when his wounds were healed. He further complained that some witnesses were not paraded during trial like PW4 assistant who was supposed to testify whether he was assigned to dismantle the motorcycle and the chairman. It has to be known that accused person is not found guilt due his weak defence but it is the prosecution side who are supposed to prove that it was accused who actually committed the crime. Further, the duty of accused in his defence is to shade doubts in prosecution testimony. See Lack s/o Kilingani vs Republic (Criminal Appeal No. 402 of 2015) [2016] TZCA 688. Reading prosecution testimony, I found PW4 testified what happened to his working station which was garage and where the motorcycle was found. The role played by chairman was to inform police who later on arrested appellant at the office of the village Executive officer (VEO). It Page 8 of 14 was PW2 who arrested the appellant and prepared exhibit P4. I found VEO facilitated arrest and appellant did not deny that he was arrested so there was no importance as parading VEO. Appellant signed exhibit P4 to prove that the stolen motorcycle was found with him. Further, there were no need to parade assistants of PW4 because PW4 was at his garage and saw ail what happened at his garage. The defence was complain about the missing witnesses. The wounds issue is minor whether the appellant had wounds or not has nothing to do with stealing and we shall see at the end if that will shake prosecution testimony I shall round up and combine ail grounds and analyse if the prosecution managed to prove the charge against the appellant. As indicated earlier, the appellant was charged with the offence of armed robbery contrary to section 287A. The section reads as follows; A person who steals anything, and at or immediately before or after stealing is armed with any dangerous or offensive weapon or instrument and at or immediately before or after stealing uses or threatens to use violence to any person In order to obtain or retain the stolen property, commits an offence of armed robbery and shall, on conviction be liable to imprisonment for a term of not less than thirty years with or without corporal punishment! Page 9 of 14 In cases of these nature, the duty of prosecution has been mentioned in various Courts decision one of them is Shaban Said Ally vs Republic, Criminal Appeal No. 270/2018 where key elements to be proved were elaborated to be one; theft, that property was taken, two; the use of dangerous weapon immediately before or after commission of offence and three; the use of weapon must be directed to the victim. See also Flano Alphonce Masalu and four Other vs Republic (supra). Further, prosecution need to prove the offence as per charge sheet. Since it is settled law that, the charge is the foundation of any trial, the mode of framing the charge is prescribed and regulated by the provisions of section 132 and 135 (a) (ii) of the CPA. While the former provision requires the offence to be stated in the charge along with specific particulars stating the nature of the charged offence, the latter one requires the statement to be described together with the essential elements of the offence and reference to the section creating the offence. From the charge sheet the appellant was alleged of stealing motorcycle with registration Number MC 849 DEL make SAN LG and he used knife before stealing the said motorcycle. PW1 was the victim in that incident. He testified in court that it was around 05:50am when he parked his Page 10 of 14 motorcycle at the lodge and appeared appellant, they negotiated fair and he gave the appellant a ride to where the crime was committed. It was on the road where appellant who was a passenger stab PW1 on face and thigh and was attended by medical practitioner. PF3 was tendered that PW1 was injured and appellant steal the motorcycle. Prosecution managed to prove stealing and the use of weapon which is knife. Victim had multiple cut wounds caused by a sharp object as per exhibit P6. The nature of the wounds is collaborated by the testimony of PW1 that he was stabbed by knife. In Shabani Said Ally vs Republic (supra) it was said; 'It follows from the above position of the law that in order to establish an offence of armed robbery the prosecution must prove the following: -There must be proof of the use of dangerous or offensive weapon or robbery instrument against at or immediately after the commission of robbery and that use of dangerous or offensive weapon or robbery instrument must be directed against a person.' PW1 was injured and treated. That means the dangerous weapon was used and was directed to him. The appellant was arrested basing on the doctrine of recent possession. Just as submitted by State Attorney, in the doctrine of recent possession, prosecution is supposed to prove the accused was found Page 11 of 14 with a stolen property which was from the complainant. Exhibit P4 was tendered during trial that motorcycle with registration No MC 849 DEL make SAN LG was found with appellant and he signed the exhibit. The same was testified by the PW2 that he went at the scene and found the appellant at the office of VEO with the motorcycle which was taken to police and few hours PW1 identified the said motorcycle. From exhibits tendered the motorcycle was never owned by the appellant although was found with it on 06/08/2022 and the PW1 complained he was robed on 06/08/2022 early in the morning. Further PW1 managed to prove who was the owner of the motorcycle by tendering receipts and contract of employment. I find the doctrine was properly invoked. I find all five elements as listed in Mwita Wambura Vs Republic, Criminal Appeal No. 56 of 1992 and in Rashid Omary Kibwetabweta vs Republic (Criminal Appeal No 254 of 2016) [2018] TZCA 500 are found in the current appeal that; The stolen property must be found with the suspect 2) The stolen property must be positively identified to be that of the complainant 3) The property must be recently stolen. Page 12 of 14 4) The property stolen must constitute the subject of the charge.' I shall further analyse the issue of identification. The appellant complained about the source of light in prosecution testimony. I have read testimony of PW1 during trial he testified that he managed to saw appellant clearly as he parked his motorcycle next to Bageni Lodge and that lodge had electricity tube light which had bright lights. He further explained the distance from the light to where PW1 was to be five footsteps. That is short distance enable PW1 to see clear. According to PW1 there was electricity light. However, PW1 testified to know appellant before the incident as they both engage in motorcycle transportation and they meet in local market (auction). That means PW1 recognized appellant at the scene. It was said that recognition is more satisfactory more assuring and more reliable than that identification of a stranger. See Nicholous James Urio vs Republic, Criminal Appeal No.244 of 2010. I find there was no issue of identification as they know each other. Am settled that there was enough light to support vision of the PW1. The defence by the appellant did not shake the prosecution case as he did not dispute he was arrested as he clearly explained during cross Page 13 of 14 examination. I find the issue that PW2 said appellant was injured at the scene to be minor as what was supposed to be proved is that appellant was found with motorcycle which did not belong to him and there was a use of weapon on that steal. In the upshot, I find the appeal lacks merit and is hereby dismissed. DATED at MUSOMA this 11th day of December, 2024. M. L. KOMBA JUDGE Page 14 of 14