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IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MSOFFE,1A., RUTAKANGWA, IA., And MBAROUK IA.) CRIMINAL APPEAL NO. 86 of 2005 LEONARD ZEDEKIA MARATU ....... .................. . ...................... APPELLANT VERSUS THE REPUBLIC ................................................................. RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Masanche,].) datedlSthl day of December, 2004 in Criminal Appeal No.37 of 2004 JUDGMENT OF THE COURT 23 rd & 28th April, 2008 MSOFFE, J.A: This is a second appeal. It is against the decision of the High Court at Mwanza (Masanche,J.) dismissing the appellant's conviction and sentence in Ta rime District Court Criminal case No. 241 of 2002. The District court of Tarime (Mallya, SDM) convicted the appellant of armed robbery contrary to sections 285 and 286 of the Penal Code. It sentenced him to a term of imprisonment for thirty years and corporal punishment of twelve strokes of the cane. Being aggrieved by the conviction and the sentences the appellant unsuccessfully appealed to the High Court after the judge was satisfied that he was identified among the robbers. In dismissing the appeal the judge on first appeal reasoned 1 inter a/ia, as follows:- After reading the entire record, I am satisfied that the con v/ct/on was proper. The appellant was known to PWJ before. He had been a taxi driver in the area. This robbery took p/ace in broad daylight, (4. 45p. m). And, as I said before the appellant was picked at an identification parade. The other person who was with the appellant, the one who went to ask about the price of Redcfs could not be identified, and he is at large. The appellant, evidence shows that he never came out to do the robbery, but, surely he is netted on the doctrine of common intention. That doctrine simply says that when two or more people set out on a mission, i. e. to do an un/awful act, they all become involved even where only one of them fulfils the doing of the un/awful act. Appellant was, indeed, in the t'get away" car. I' 3 All along the appellant has been unrepresented. In this appeal he has also appeared in person before us. On 27/10/2006 he filed a memorandum of appeal. On 17/4/2008 he filed a supplementary memorandum of appeal under Rule 66(1) of the Court of Appeal Rules,1979. In essence, however, the main grounds of complaint are:- One, he was convicted on the basis of insufficient identification evidence. Two, the evidence on record did not establish the offence because the complainant, Peter Zakaria, did not testify. Three, the judge on first appeal did not subject the evidence to close scrutiny. If he had, he would have found some glaring contradictions in the evidence for the prosecution. Mr. Edwin Kakolaki, learned State Attorney, appeared for the respondent Republic. At first, he sought to oppose the appeal. On reflection, however, he argued in support of the appeal. We think Mr. Kakolaki was justified in not resisting the appeal for reasons which will be apparent hereunder. In order to appreciable the essence of the appeal before us, it is instructive to set out the facts of the case, albeit briefly. in One Peter Zakaria owned, and presumably still owns, a beer selling Depot at Tarime. On 29/5/2002 at around 4.45 p.m PW1 Maria Matiku, a cashier at the Depot, was on duty. PW2 Hegere Mseti and PW3 Magabe Magesa were also on duty. While the three were on duty three robbers rampaged into the depot, fired some bullets which left PW3 with a broken arm, and then stole cash Tshs. 4,375,000/= the property of the said Peter Zakaria. The robbers had gone to the scene in a vehicle that was identified to bear a plate number reading TZR 1352. According to the prosecution witnesses, one of the robbers was the appellant who was the driver of the vehicle in question. After the robbery, the robbers disappeared in the vehicle driven by the appellant. The matter was reported to the Police where the witnesses gave some description of the robbers, who included the appellant. The police mounted a search which resulted into the arrest of the appellant at Kibara, Bunda where he was driving a vehicle with Reg. No. TZC 6280. In his defence, the appellant admitted being arrested at Kibara,Bunda. He denied, however, being involved in the robbery in S As already observed, this is a second appeal. The general rule is that an appellate court should not disturb concurrent findings of fact unless it is clearly shown that there has been a misapprehension of the evidence, a miscarriage of justice or 'a violation of some principle of law or practice. See Amratat D.M t/a Zanzibar SUk Stores V A.H. Jariwa!a t/a Zanzibar Hote (1980) TLR 31, Dr. Pandya V R (1957) EA 336, Dickson Joseph Luyana and Another V RepubUc, 'C.A.T Criminal Appeal: No. 1 of 2005 (unreported) and Issa Mgara @ Shuka V Repubic, Criminal Appeal No. 37 of 2005 (unreported). Indeed, where there are misdirections or non-directions on the evidence, a court of second appeal is entitled to look at the relevant evidence and make its own findings of fact —See The Director of PubUc Prosecutions V Jaffari Mfaume Kawawa (1981) TLR 149. In this case, there was no dispute at the trial, and indeed in the first appeal for that matter, that a robbery incident took place at the above mentioned depot on the stated date and time. The crucial question was, and indeed still is, whether the prosecution evidence 6 established beyond reasonable doubt that the appellant was one of the robbers. We wish to begin with the complaint that theft was not proved because the complainant, Peter Zakaria, did not testify. The judge on first appeal addressed the point. He opined and held as follows:- The charge sheet talks of the money stolen as being money belonging to Peter Zacharia, and Peter Zacharia never testified/n court. He should have test/fled, at least, to say that the Depot was his. However, his non-testifying has not occasioned any failure ofjustice. Without hesitation, and with respect, we agree with the judge to the extent that Peter Zakaria ought to have testified to, at least, say that the Depot belonged to him. We do not, however, go along with him that the failure to testify did not occasion a failure of justice. It occurs to us that robbery is an aggravated form of theft which is accompanied by force. Indeed, without a theft there is no robbery. Theft is complete as soon as there is an appropriation with intent to steal - See Cases and Materas On CrimnaI Law,