CRIMINAL APPEAL NO 271 OF 2022

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LILA. J.A.. KIHWELO. J.A. And ISSA. J.A.T CRIMINAL APPEAL NO. 271 OF 2022 PETRO MLONGO.....................................................................l sl APPELLANT MASUMBUKO SAKUMI............................................................2nd APPELLANT JACKSON MASUMBUKO.......................................................... 3rdAPPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) fltemba. JJ dated the 2nd day of May, 2022 in Criminal Appeal No. 47 of 2021 JUDGMENT OF THE COURT 25th & 28th February, 2025 KIHWELO. J.A.: The three appellants, together were jointly charged before the District Court of Geita at Geita for the offence of armed robbery contrary to section 287A of the Penal Code. According to the particulars of the charge that was laid before the court: PETRO S/O MLONGO, MASUMBUKO S/O SAKUMI and JACKSON S/O MASUMBUKO on I4 h day o fJuly, 2019 during the night hrs at Msasa Village within the District and Region o f Geita did steal Cash money Tshs 300,000/=, 1 Mobile Phone Make Nokia and 1 Mobile Phone Make Itei, all worth Tshs. 120,000/=, the property o f ZWIYO S/O MPEMBA, allproperties worth Tshs. 420,000/= and immediately before and after such stealing they beat ZWIYO S/O MPEMBA with dubs and slashed him with machete In order to obtain and retain the said properties." They both protested their innocence, following which a full trial ensued and the prosecution featured eight (8) witnesses, and a host of exhibits. To establish its case, the following witnesses gave testimony: Police No. F. 9762 D/C Shaban (PW1), Police No. G. 8835 Detective Venance (PW2), Insp. James Malanya (PW3), Police No. E. 7719 D/CpI Paschal (PW4), Zwiyo Mpemba (PW5), Paulina Edward (PW6), Esther Amos Ibrahim (PW7) and Mbizo Petreo (PW8). Apart from that, the following exhibits were tendered in evidence, the cautioned statement of the second appellant (exhibit PI), the cautioned statement of the third appellant (exhibit P2), certificate of seizure (exhibit P3), the cautioned statement of the first appellant (exhibit P4) and the PF3 of Zwiyo Mpemba (exhibit P5). On the part of the appellants, they gave their respective evidence on oath and did not produce any documentary exhibit. Briefly, the prosecution case which was believed by the trial court shows that, on the fateful day at around 10:00 pm or so, Zwiyo Mpemba (PW5) was sleeping with his wife, Paulina Edward (PW6) when all of a sudden, two bandits stormed inside their bedroom by forcefully breaking the front door in order to gain entry. One of the bandits went straight to where PW5 was sleeping and ascended on him in a frenzy of machete slashing on his head. The second bandit then dragged PW5 outside the house and ordered him to get down which PW5 obediently complied with. The bandits went ahead brutally attacking PW5 on various parts of his body using machete which compelled PW5 to flee from the scene in the urge to save his life. As regards the identity of the bandits, PW5 told the trial court that he visually recognized the appellants as they were well known to him as fellow villagers with the aid of solar light which was placed in the sitting room and the other one in the bedroom. It was PW5 further testimony that, the bandits then took away TZS. 300,000.00 in cash, four Mobile Phones namely big Itel phone, small Itel phone, Tecno and Nokia. All the items were worth TZS. 420,000.00. PW6 on her part told the trial court that, at all the time when her husband, PW5 was being attacked by the bandits she was seated on the bed terrified not knowing what to do. In her further testimony, upon dragging her husband outside three bandits came back inside the bedroom and the trio were holding machete and started attacking her with machete while demanding to be given money. They searched the bedroom and found TZS. 300,000.00. Apart from that, the bandits also took away four mobile phones make Itel touch, Itel normal, Tecno and Nokia. Like PW5, PW6 visually recognized the appellants who were well known to her with the aid of the solar light. Furthermore, PW6 claimed to have recognized the appellants' voice. More particularly, PW6 informed the trial court that she recognized the appellants voices because they were fellow villagers who she had lived with for four years and during the robbery incident they demanded for money and sale agreement for the plot of land PW5 had just sold. After taking away the items the bandits took to their heels and disappeared from the scene. A short while later, after the appellants' departure, PW5 went back home and found PW6 who was not seriously injured, but shortly thereafter PW6 lost consciousness and the duo were rushed to hospital where PW8 medically examined them and accordingly she treated them and filled the PF3 (exhibit P5). The appellants were later arrested and investigation ensued. PW1, recorded the cautioned statement of the second appellant, exhibit PI, PW2 recorded the cautioned statement of the third appellant, exhibit P2, PW3 conducted the search on the first appellant and filled the seizure certificate, exhibit P3. On the other hand, PW4 recorded the cautioned statement of the first appellant, exhibit P4 and PW7 was the Village Executive Officer who witnessed the search on the first appellant and signed the seizure certificate, exhibit P3. Both appellants in their respective cautioned statements admitted their participation in the robbery incident. With this detail, so much for the version of the prosecution witnesses on the occurrence. On the adversary side, the appellants gallantly denied the allegations leveled against them and stoutly defended their innocence. In their sworn testimonies the appellants testified that the prosecution did not prove the case as required by the law. The first appellant (DW1) admittedly testified to have responded to the wailing for help during the night of the incident and that he fully participated in enhancing security that night but just to be arrested the following morning. He associated his arrest with the conflict between his father and the village chairman. The second appellant (DW2) denied the accusations and associated his arrest with his being a stranger at the village, while the third appellant (DW3) equally denied any responsibility on the robbery incident. On the whole of the evidence, the trial court accepted as truthful the evidence of the prosecution to the effect that the appellants' denial was rejected. In the upshot, the appellants were found guilty of the offence of armed robbery and convicted accordingly. They were each sentenced to a term of thirty (30) years imprisonment. In protesting their innocence, the appellants lodged their first appeal before the High Court which found no valid cause to fault the findings of the trial court and, accordingly, on 2nd May, 2022 the High Court (Itemba, J.) dismissed the appeal. Undeterred, the appellants lodged this second appeal upon a memorandum which is comprised of three (3) points of grievance. One; the first appellate court erred to uphold conviction relying on the evidence of visual identification which was unfavourable. Two; the first appellate court erred to uphold conviction relying on exhibit P4 whose additional statement was improperly taken; and three, the prosecution did not prove its case to the hilt. Before us, the appellants who appeared in person without legal representation, understandably allowed the learned Senior State Attorneys to argue first, reserving their right of reply at a later stage. The respondent Republic was represented by Ms. Verediana Mlenza who was assisted by Ms. Luciana Shabani, both learned Senior State Attorneys. For her part, Ms. Shabani who argued the appeal for the respondent Republic, predicated her submission by supporting the appeal on the basis of one ground of appeal, which in her view, will suffice to dispose the appeal before us. The sole ground she chose to argue is that, the prosecution did not prove the case beyond reasonable doubt. Addressing us on this ground, the learned Senior State Attorney was fairly brief and to the point. She contended that, the duty of the prosecution to prove the case beyond reasonable doubt is absolute and must be discharged regardless of the circumstances obtaining in any particular case. In her view, in the instant case the prosecution did not prove the case as required by the law owing to the variance between the charge which was laid at the appellants' door step and the evidence that was led by the eight prosecution's witnesses during trial. Ms. Shabani, then took us through in minute detail, starting with the particulars of the offence in the charge at page (i) of the record of appeal which laid the foundation of what the appellants were arraigned for. She then, referred us to page 55 where PW5 described the items that were taken away by the appellants and page 58 where PW6 also described the items that were stolen by the appellants. She further argued that, the appellants also confessed in their respective cautioned statements which were relied upon by the prosecution to secure conviction. According to her, in those cautioned statements the appellants confessed to have stolen TZS. 100,000.00 and two mobile phones but none of them stated the type of the mobile phone they took away. Illustrating, she contended that, the first appellant at page 97 of the record of appeal admitted that, they stole TZS. 100,000.00, the second appellant at page 90 of the record of appeal admitted that, they stole TZS. 100,000.00 and two mobile phones while the third appellant at page 93 of the record of appeal admitted that, they took away two mobile phones. In her considered opinion, in view of the foregoing testimony of the prosecution evidence, there was apparent variance between the particulars of the offence in the charge and the evidence on record which dented the prosecution case and therefore, rendering the allegation levelled against the appellants ill-founded. Ms. Shabani argued further that, since there was variance between the charge and the evidence, the prosecution was duty bound to amend the charge in terms of section 234 (1) of the Criminal Procedure Act, Cap 20 (the CPA). She took the view that, since the prosecution did not amend the charge then, it renders the prosecution case not proved to the required standard. Reliance was placed in the case of Francis Thomas Thomas v. Republic (Criminal Appeal No. 135 of 2021) [2024] TZCA 1249 (11 December 2024) to fortify her argument. She thus, rounded off by urging us to sustain the appeal. Having heard the submissions of the learned Senior State Attorney, the appellants had nothing more to say in rejoinder, save for urging the Court to allow their appeal and set them free. From the foregoing submission of the learned Senior State Attorney and after our serious consideration of the record of appeal, we, on our part, are of the view that, this appeal can sufficiently be disposed of within the narrow circumference argued by the learned Senior State Attorney. To begin with, we are in full agreement with the learned Senior State Attorney that, there is variance between the particulars of the offence in the charge and the evidence on record as we shall endeavor to explain. We took pain to reproduce the particulars of the offence in the charge at the beginning of this judgment deliberately to demonstrate what the appellants stood charged with to which the prosecution was duty bound to prove. Clearly, the particulars of the offence in the charge laid at the appellants' door indicates that the appellants were charged with stealing cash TZS. 300,000.00, 1 mobile phone Make Nokia and 1 mobile phone Make Itel together worth TZS. 120,000.00 and that, all the properties stolen were worth TZS. 420,000.00. However, record of appeal bears out that, the evidence on record which was led by the prosecution through PW5 and PW6 as well as the cautioned statements of the appellants exhibits PI, P2 and P4 provides a different account. Starting with PW5 at page 55 of the record of appeal he is quoted saying; "During that night the accused did still Tshs 300,000/= cash, four phones to wit (i) itel big one (ii) Itel the small one (iii) Tecno and (iv) Nokia. All properties including the cash moneyworth Tshs 420,000/=." Furthermore, PW6 at page 58 of the record of appeal testified that: "They started to search and they removed the mattress where they found Tshs. 300,000/=. They also did steal four phones make, Itel touch, Itel the normal one, Tecno and Nokia." What is more, on the evidence in the record, there was details about items stolen which the appellants themselves confessed to have stolen TZS. 100,000.00 and two mobile phones but none of them stated the type of the mobile phones they took away. Particularly, the first appellant at page 97 of the record of appeal in his cautioned statement, exhibit P4 admitted that, they stole TZS. 100,000.00 and two mobile phones. On the other hand, the second appellant at page 90 of the record of appeal in his cautioned statement, exhibit PI admitted that, they stole TZS. 100,000.00 and two mobile phones, while the third appellant at page 93 of the record of appeal in his cautioned statement, exhibit P2 admitted that, they took away two mobile phones and shared the proceeds of the stolen money TZS. 33,000.00 each. We fully agree with Ms. Shabani that there was variance between the charge and the evidence on record as evidently demonstrated above. Quite unfortunate, the prosecution did not seek to amend the charge in terms of section 234 (1) of the CPA. Speaking of section 234 (1) of the CPA, it provides that: "Where, at any stage of the trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration o f the charge either by way o f amendment of the li charge or by substitution or addition of a new charge as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits o f the case, the required amendments cannot be made without injustice; and aii amendments made under the provisions of this subsection shall be made upon such terms as the court shall deemjust." We hasten to state at this point that, since there was variance between the charge and the evidence as we have demonstrated above, and because there was no amendment which was done in terms of section 234 (1) of the CPA, then the prosecution evidence in relation to the charge against the appellants was not proved to the required standard. There is, in this regard, a long and unbroken chain of decisions of the Court which underscore that, whenever there is variance between the charge and the evidence on record, an amendment should be made in terms of section 234 (1) of the CPA to make it in conformity with the evidence on record, failure of which the preferred charge will remain unproved and the accused shall be entitled to acquittal. See, for instance, Francis Thomas Thomas v. Republic (supra), Mohamed Juma @ Mpakama v. Republic [2019] T.L.R. 514 and Abel Masikiti v. Republic (Criminal Appeal No. 24 of 2015) [2015] TZCA 500 (24 August 2015). To this end, we entirely subscribe to the views of the learned Senior State Attorney that, this finding suffices to dispose of the appeal. Thus, we allow the appeal and, in the result, the conviction and sentence are hereby, respectively quashed and set aside with an order that the appellants be released from prison custody forthwith unless they are held for another lawful cause. DATED at MWANZA this 27th day of February, 2025. S. A. LILA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 28th day of February, 2025 in presence of Appellant in person and Mr. Christopher Olembile, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.