Yohana Amos Mashalla

The Judiciary of Tanzania IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CRIMINAL APPEAL CASE REFERENCE NO. 000035803/2024 YOHANA AMOS @ MASHALLA…………………........................................ APPELLANT Versus REPUBLIC……..……………………………………………………………...… RESPONDENT (Originating from the Decision of the District Court of Bariadi at Bariadi) (Hon. C.E. Kiliwa - PRM) Dated the 22nd November,2024 in Criminal Case No. 96/2022 ----------------------------- JUDGMENT 11th & 24th March, 2025. F.H. MAHIMBALI, J. The appellant is dissatisfied with the trial court’s findings of guilty, conviction and sentence of 30 years’ jail imprisonment after he has been charged with Armed Robbery contrary to section 287A of the Penal Code, (CAP 16 R.E, 2019), and Unlawful possession of Property suspected of Having been Stolen or Unlawful Acquired, contrary to section 312(1)(b) of the Penal Code (cap 16 R.E 2019). 1 It was alleged by the prosecution side that on 29th day of July, 2022 at Somanda street, within Bariadi District in Simiyu Region, the appellant and another person who is still at large, did steal one television make Hisense inch 32 valued Tshs 570,000/= the property of SELEMAN S/O NDOLOMA and immediately before and during such stealing did threaten to injure the said SELEMAN S/O NDOLOMA, with bush knife (Panga) in order to obtain and retain the said property. And that on 30th day of July 2022 at Sima Street, within Bariadi District in Simiyu Region the appellant and his colleague was found by Police Officer A/INSP MBEGA, in unlawful possession of one television make Hisense inch 32 Having regard to all the circumstance be reasonably suspected of having been stolen or unlawful acquired. Aggrieved by the finding of both conviction and sentence of the trial court, the appellant has preferred this appeal propped on the following grounds of appeal: 1. That, the learned trial Magistrate court erred in law and in fact to hold conviction in weak identification by using a solar light. 2 2. That, the evidence which adduced by the Public witness did not collaborate to each other therefore the trial Magistrate Court erred in law to hold conviction to the case which did not investigated properly. 3. That, the Prosecution side failed to prove the case beyond reasonable doubts which leads a trial Magistrate Court to enter wrong decision. On these grounds of appeal, the appellant prayed his appeal be allowed, conviction be quashed and the sentences imposed thereon, be set aside and that he be acquitted. During the hearing of the appeal, the appellant who had no more to argue in his appeal, fended himself whereas the Respondent was dully represented by Mr. Kadata, learned state attorney. In resisting the appeal, Mr. Kadata submitted as follows: On the first ground of appeal, that he was not properly identified is not true as the appellant was while at the scene of crime properly identified. This is because of PW1's evidence that by use of bright solar lights -12 watts illuminating the scene, the appellant was properly identified. Furthermore, PW1 stated that he had just been few paces with the appellant to the extent that it was not difficulty in identifying him. As if this is not enough, the five 3 minutes’ duration incidence was sufficient enough to identify the culprits, worse enough the appellant was not stranger to him (PW1) as few days ago, the appellant was doing a mason work in the same area (to the land lord). By this evidence, the mistaken identity was eliminated as stated in the case of Waziri Amani V. Republic [1980] TLR 250. He added that, the appellant was arrested by PW2 and upon being searched, he was found with one TV - Hisense 32' which later was identified by PW1 amongst the stolen properties reported on the date of the incident. Therefore, the appellant was properly identified at the scene of crime. As with the second and third grounds which mean the same thing, he argued them jointly that the prosecution’s case was sufficiently established against the appellant and beyond reasonable doubt leaving no any chance of mistaken identity. As per charged offence which is armed robbery contrary to section 287A of the Penal Code, the Republic ought to have established three things: firstly, that there was stealing of anything capable of being stolen. Secondly, that during the said stealing the appellant was armed. Thirdly, that there was use or threaten use of violence to obtain and retain that property. 4 Elaborating the establishment of the three ingredients, in the first ingredient, Mr. Kadata submitted that the testimony of PW2 and PW1 suffice the proof as the appellant was found during search at his home with the stolen items amongst them the appellant claimed possession. The certificate of seizure (P1 exhibit) in which the appellant also signed, lists the said item. As with the second ingredient, the prosecution through PW1 had also established how the appellant was armed with a panga while his companion George had carried an iron bar. It is undisputed that panga is amongst dangerous weapons. With the third ingredient, it is undisputed that the appellant together with his fellow, had used threatened use of the said panga weapon and iron from inflicting to PW1 for them to retain the said stolen property. Apart from this evidence, the appellant was also interrogated by police and admitted to have committed the said offence. During the reception of this evidence, the appellant neither disputed nor questioned anything over that evidence. With the second offence of being found in unlawful possession of property alleged to be stolen or unlawfully acquired, the prosecution had established it vide the evidence of PW1 and PW2 together with certificate of seizure and the Tv itself (exhibit P1 and P2). In essence, it was a full 5 establishment of the said offence vide these two witnesses: PW1 and PW2. On his admission of guilty, coupled with the PW1 and PW2's evidence, that was nothing but a full establishment of the said fact. With this submission, Mr. Kadata concluded that the appellant's grounds of appeal are of no merit and be disregarded and that for want of merits, the appeal be dismissed for want of any sufficient cause. Conviction and sentence be upheld by this Court as done and entered by the trial court. The appellant had no rejoinder submission but just pressed for being acquitted as he was already in prison for another offence in which he was serving a custodial sentence, thus it was impossible for him to have committed the said offence while in prison. He pressed for his appeal to be allowed on the strength of his grounds dully adopted by the Court. Digesting the facts of the case, in which the appellant was convicted of both offences: Armed robbery and an offence of being in unlawful possession of property alleged to be stolen or unlawfully acquired, I had queried Mr. Kadata whether the conviction on both counts as per facts in this case was safe where the alleged stolen property is the subject of the established armed robbery offence, he first hesitated, but later submitted 6 that the second offence was an alternative in the event the main offence is not established as per law. Thus, it was unsafe to enter both convictions as alternatively charged. I have keenly scanned the appeal’s arguments, reviewed the cases material facts, the question whether the appeal is brought with sufficient cause, is answered in negative. I say so, while on agreement with Mr. Kadata that, for an offence of armed robbery to stand, three important ingredients have to be established: Firstly, that there was stealing of anything capable of being stolen. Secondly, that during the said stealing the appellant was armed. Thirdly, that there was use or threaten use of violence to obtain and retain that property; and fourthly, that it was the appellant who is responsible of the commission of the said offence. On the first ingredient whether there was stealing, it is true that the testimony of PW2 and PW1 sufficed the proof as the appellant was found during search at his home with the stolen items amongst them the appellant had claimed possession (see exhibit P1). As with the second ingredient, the prosecution through PW1 had also established how the appellant was armed with a panga while his companion George had carried an iron bar. It is undisputed that panga and iron bar are amongst dangerous weapons. With 7 the third ingredient, it is undisputed that the appellant together with his fellow, had threatened use of the said panga and iron weapon from inflicting to PW1 for them to retain the said stolen property. Apart from this evidence, the appellant was also interrogated by police and admitted to have committed the said offence. During the reception of this evidence (P.2 exhibit), the appellant neither disputed nor questioned anything over that evidence. Since admission of guilt by the accused person is the best incriminating evidence, as per this case, I have no doubt that there was stealing (exhibit P.1 and P3), and that the appellant did the said stealing (testimony of PW1, PW2, PW3 coupled with exhibit P1, P2 and P3), and that he had used panga and iron bar to retain the said stolen property (PW1’s testimony). In consideration of the fact that there was no impediment of the said visual identification in the presence of bright illuminating solar lights, distance of the two (PW1 and the appellant who was unmasked and the duration of the said event (about five minutes) as per Waziri Amani’s case (supra), I have no good basis to fault the said PW1’s testimony. This being a criminal charge, it is the trite law that the prosecution in the Common wealth jurisdictions (Tanzania inclusive) is 8 placed with a heavier burden to prove their case than that of the accused. See Mohamed Saidi Matela V. Rep, (1995) T.L.R 3 and John Makolobela & 2Others V. Rep, (2002)T.L.R 296. See also Joseph John Makune vs. Republic [1986] TLR 44 at page 49 and Mohamed Haruna@ Mtupeni & Another v Republic, Criminal Appeal No. 25 of 2007. The first long-established principle in criminal justice is that of onus of proof in criminal cases, that the accused committed the offence for which he is charged with, is always on the side of the prosecution and not on the accused person. This is reflected under Section 110 and Section 112 of the Evidence Act Cap.6 [R.E 2022] (The evidence Act). Secondly, is the principle that the proof of the said charge is beyond reasonable doubt (See section 3(2) (a) of the Tanzania Evidence Act, Cap 6. It is my considered view that, the said onus in the circumstances of this case has been fully discharged. However, conviction in the second offence as rightly commented by Mr. Kadata, was uncalled for so long as it was an alternative offence to the main offence of armed robbery. Where the alleged stolen property is the subject of the established armed robbery offence, the second offence which was an alternative, becomes irrelevant on conviction an alternative as it was. Thus, it was unsafe to enter both 9 convictions as alternatively charged. Conviction on the second offence is quashed and set aside. With all the above discussion and the analysis made, I find this appeal to have been brought without any sufficient cause and it is accordingly dismissed for want of merits on the first count but allowed to the alternative sentence to the extent explained above. Right of further appeal is hereby explained. DATED at SHINYANGA this 24th March, 2025. F.H. Mahimbali Judge 10