CHACHA DENYO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CRIMINAL APPEAL NO. 18160 OF 2023 (Originating from Criminal Case No. 322 of2022 before the District Court ofHaia at Kinyerezi[Hon. N.A. Baro-PRM]dated 13^ Juiy 2023.)

BETWEEN CHACHA DENYO MWITA. l^r APPELLANT CHACHA CHARLES MKILITI. ...2^0 APPELLANT EMMANUEL HAULE KONGO 3'*'' APPELLANT

VERSUS

THE REPUBLIC RESPONDENT

JUDGMENT ON APPEAL S.M. MAGHIMBI.3: Before the District Court of Ilala at Kinyerezi C'the thai court"), the appellants were jointly charged with two (2) counts of Armed Robbery contrary to the provisions of Section 287A of the Penal Code, Cap. 16 R.E 2022. As per the Charge Sheet, it was alleged by the prosecution side that on 11'^ day of January, 2022 at Kitunda Magole area within Ilala District in Dar es salaam region; the above-named appellants did steal a mobile phone make Samsung valued atTshs. 600,000/=, cash money valued at Tshs. 55,000/=, a Television make Samsung 48 inches valued at Tshs. 700,000/= properties of Roger Msindo Mjagala and Wini Shoo @ Agnes Alianoel respectively; and immediately before and after such stealing, they 1 did beat and threaten the said Roger Msindo Mjagala and Win! Shoo @ Agnes Alianoel with a machete in order to obtain and retain the said properties from them. Essentially, as per the records, I find it apt and apposite to give a brief account of the facts which led to the appellants conviction. On the eventful date, PWl and PW4 alleged to have witnessed inter alia \>no of the appellants entering PWl's home carrying a machete. It was PWl's testimony that, they shouted for help and one Rajab @ Roja her neighbor, cropped up but he was beaten by the culprits with the blunt side of the said machete. Following the said violence, the two appellants

who had the machete, ordered PWl and PW4 to be under arrest while their companions were taking PWl's television, make Samsung-40 inches size, from the wall. The TV was valued at Tshs. 700,000/=, the mobile phone of Roja make Samsung valued at Tshs. 600,000/= and his cash money valued at Tshs. 55,000/= and vacated from the crime scene. Going further, PWl stated that she Immediately reported the matter to Kitunda Police Station whereby the assailants were apprehended. PW2 affirmed that the appellants were arrested by Daniel Yohana and admitted to have committed the charged offence. PW2 also testified that he visited the scene, drew the sketch map and interrogated the witnesses. When cross examined by the 2"^ appellant, he specified that the stolen TV was 40 inches and not 48 inches. PW3 evidenced that the 1^ appellant at Stakishari Police Station admitted to have committed the offence accompanied with other five guys. He furthermore alleges that he and Roja went to Magoie to arrest the 2"^ appellant who was at Ukonga Primary Court who acknowledged to have sold the said properties at Tegeta. Moreover, on 27/1/2022 they again arrested the 3^"^ appellant at Magoie area who also admitted to have committed the offence. In their defence, DWl testified not to be knowing the offence he is facing as he was arrested in a wear and tear game and taken to Stakishari Police where he was given

the armed robbery case. DW2 defended himself by uttering that he was in conflict with and not Wini. DW3 detailed that he was arrested by sungusungu while coming from his business on his way looking for a transport. He informed the trial court that he does not know anybody who accused him before that court but Wini told him to have known him and that's why he has been joined in this case with people he does not recognize at all. Upon full trial, the trial court found all the appellants guilty of the second count, convicted and sentenced them to thirty (30) years Imprisonment. Aggrieved by that decision, the appellants have preferred the present appeal to this court which is pegged on the following grounds: 1. That, the learned trial court grossly erred in holding the appellants conviction which was predicated upon incredible and unreliable visual identification evidence of PWl and PW4; 2. That, the learned trial court grossly erred in holding the appellants conviction while the essential ingredients of the offence of armed robbery were not established; 3. That, the learned trial court grossly erred in law and fact by failing to realize that the particulars of offence stated in the charge sheet varies with the evidence on record regarding the size of the said television which was stolen; 4. That, the learned trial magistrate grossly erred in law and fact by convicting the

appellants based on prosecution which was not proved beyond reasonable doubt as required by law. By the order of this court, parties were directed to dispose the appeal by way of written submissions as scheduled thereof. As per the record, the same was accordingly complied. In their submissions to support the appeal, the appellant abandoned the 2"^^ ground of appeal and argued on the remaining grounds. The appellants written submissions reveals to have been drawn by themselves and that of the respondent had the noble legal services of the office of the National Prosecution Services (NPS). Submitting in support of the appeal, the appellants commenced by alleging that the visual identification evidence of PWl and PW4 was totally wanting in cogency as neither of the two gave graphic description of them which could have assisted the trial court to rule out the possibility of mistaken identity. To support their argument, they referred this court to the decisions of Waziri Amani Vs. R(1980)TLR 250; Hassan Juma Kananyera v R (1992)TLR 100 and Raymond Francis v R (1991) TLR 100. They maintained that, the incredible and uncorroborated visual identification evidence of the said two identifying witnesses totally failed to place them at the said crime scene on the material date. They further submitted that, despite, PW2 stated that they were arrested by Daniel Yohanna, a police officer and

PW3 avowed that the 2"^ appellant was arrested too by one Rogers whilst he was at Ukonga Primary Court and on 27/1/2022 they furthermore arrested the 3^^ appellant, it is their submission that neither of the two (Daniel Yohanna and Rogers) whom ought to be material witness appeared to testify to that effect. To buttress their position, they placed reliance in the case of Azizi Abdallah vR(1991)TLR 71. On the 3'"'^ ground of appeal, it is their assertion that the prosecution evidence on record varies with the particulars of the charge sheet on the size of the television stolen. Their argument was that when they cross examined PWl, she averred that her stolen TV was of 40 inches; whereas PW2 could not state the size, but alleged them to have stolen it but he further mentioned that the stolen Tv was of 40 inches and not 48 inches. Equally, they pointed out, PW3 testified that the stolen Tv by the appellants was of 40 inches worth Tshs. 700,000/=. It is the appellants' contention that, the said defect was incurable and cannot therefore be said that the prosecution case was proved to the hilt in the circumstances. As to the 4^^ ground of appeal, they submitted that the prosecution failed to prove their case beyond reasonable doubt. The appellants alleged that PWl and PW3's evidence are contradicting on their apprehension. To them, failure to call such material witness entitles the

court to draw an adverse inference against the prosecution that perhaps they would have given evidence against them. This argument was supported by citation of the case of Magambo Saanane Vs Republic,(Criminal Appeal No. 255 of 2021)[2024] TZACA 247(26 July, 2024) TanzLII. It was their submission that no evidence has been tendered to prove that their apprehensions is questionable. They further supplemented that the testimony of PWl and PW4 is absolutely wanting in giving their descriptions to the police station, concluding that there was no evidence that implicated them beyond reasonable doubt that they were armed and they did rob the said television from PWl. As a result, they have invited this court to allow the appeal and acquit them forthwith. In contesting the appeal, foremost, the respondent progressed by supporting the appellants' conviction and sentence meted by the trial court. In reply to the ground of appeal, they submitted that the said witnesses were credible and reliable as they testified that the appellants had no mask and the light was so bright and they went on explaining the role of the 2™^ and 3'^'^ appellants in taking the said television from the wall. They qualified that, PW4 also evidenced that the 3'^^ appellant wore the same shirt he was wearing during the commission of the crime, as for that, it is there take that there was no chance of mistake of

identity as alleged by the appellants. To reinforce their submission, they cited the case of All Abdallah Rajab vs Saada Abdallah Rajab & Others (1994)TLR 132. Regarding the 3"^ ground of appeal, they contend that, even if they were to agree with the said anomaly, the same is minor and did not prejudice them since during preliminary hearing, the appellants had the opportunity to know the charges against them, and as such, it is cured under section 388 of the Criminal Procedure Act, Cap. 20 R.E 2022. On the issue of failure by the prosecution to procure the attendance of the arresting officer before the trial court, it is their contention that the same is not fatal as the appellants admitted that they were arrested in connection with the said offence. They asseverate that as per the dictates of Section 143 of the Evidence Act, Cap. 6 R.E 2022, there is no specific number of witness to testify before the court, supporting their submission by citing the decision of the case of Thobias Michael Kitavi vs Republic (Criminal Appeal No. 31 of 2020). They maintained that, witnesses are called upon to testify on disputed facts and in this case, there is none. It is respondent's argument that the visual identification of PWl and PW4 towards the appellants, evince their participation in the commission of the offence. To them, the said identification demonstrates water tight evidence

against them appellants arguing that, the case against the appellants was proved without any flicker of doubt. In addition to what was argued in the grounds of appeal, the respondent further submitted that the trial court did not consider the evidence of the appellants, thus fatal. They supported their submissions by citing the case of Kaimu Said vs Republic (Criminal Appeal No,391 of 2019)[2021] TZCA 273 (7 June, 2021)TanzLIl. The respondent urged the court to re-evaluate and weigh the evidence of both sides as a whole in order to arrive at a just and fair decision as underscored in the decision of Charles Thys vs Hermanus P. Steyn, Civil Appeal No. 45 of 2007. At the end, they prayed that the appeal be dismissed in its entirety. In rejoinder, the appellants reiterate what they have submitted in chief and emphasizes that even if the incident occurred in a day time, PWl did not state that they were neighbors with them, however, she stated during cross examination that she knew the appellant by his three names but nothing on record support the same. Therefore, it is their suggestion that, the said arguments are not supported by the evidence on record. Expounding on their utterance, they stated that PWl and PW4 failed to give their descriptive particulars to the police that there were slim, tall with average complexion, the color of the shirt that the 3^^ appellant wore. The

appellants submitted further that the procurement of the arresting officer to testify on how he arrested the 1^^ and 2"^ appellants was vital. They urge this court to be persuaded by the case of Boniface Kundakira Tarlmo vs Republic, Criminal Appeal No. 350 of 2008 (Unreported). To the contrary, they argued, the aforesaid shaken the prosecution case as to their apprehensions as the evidence placed by PWl and PW4 contradicts each other on that. They are further and furthermore submitting that, failure by the respondent to amend the charge sheet is fatal and did prejudice them and the same is not curable in line with the provision of section 388 of the Criminal Procedure Act, Cap. 20 R.E 2022. The appellants submitted further that if the arresting officer was within reach but he was not called without sufficient reason being shown arguing that the court ought to have drawn adverse inference to the prosecution. They reiterated their prayer that their appeal be allowed, their conviction and sentence be quashed and they be released from prison Immediately. Having considered the parties' rival submissions for and against the appeal, the focal issue which needs determination by this court is whether during trial, the prosecution adduced sufficient evidence to warrant the conviction of the appellants. In doing so, I will begin with determination of ground 1 and 3 of the appeal, if they

are found in the affirmative, then the same will directly support ground 4 of the appeal. It is a trite law the first appellate court has an obligation to re- evaluate the evidence on record before reaching to its conclusion. See; Amos s/o Alexander @ Marwa vs Republic,(Criminal Appeal No. 513 of 2019)[2021] TZCA 620(29 October, 2021) TanzLII. Tlie ground of appeal is on the identification of the appellants. It is clear from the record that the identification by PWl of the appellants was that of recognition. In Yohana Kulwa @ Mwigulu & 3 Others vs Republic (Criminal Appeal No.397 of 2016) [2018] TZCA 344; (19 November 2018)TanzLII it was upright echoed that: - 10 "Much as we are aware that the evidence of visual identification in the present case is one of recognition and that this kind ofevidence, as we held in Samwel Dickson & Another vs Republic, Criminal Appeal No. 322 of 2014 (Unreported), citing with approval the decision ofthe Court ofAppeal ofKenya ofAnjonane vs Republic[1998]KLR 60, is more reliable than identification ofa stranger''. Applying the above stated legal position to the instant case, PWl testified to the effect that she knew the appellant as she used to see him at Vijiweni. She further stated that, on the incident date, she instantly reported the matter to Kitunda Police Station and PW2 did corroborate the evidence of PWl. The PWl had visual Identification

of the appellants and the fact that she could immediately identify the appellants upon their arrest was vital. In the case of Renatus Exavery Mwinuka vs Republic (Criminal Appeal No. 326 of 2018) [2021] TZCA 481 (17 September 2021)TanzLII the court held that: - "...we aiso accept, on the authority ofthe cases cited by Ms, Tengeneza, thatPWl's pointing ofan accusing finger at the appeiiant at the earliest opportunity assured the credibility ofhis account". As per the evidence adduced, with that visual Identification by recognition, PWl and PW4 went on explaining the roles of the appellants played in stealing the said television as the same was done in a day light 11 at PWl's home around 9:00am to 9:30am in the morning. To substantiate the truth of the above, PW4 testified that the 3"^ appellant wore the same shirt he was wearing during the commission of the crime, thus, there was no chance of mistake of identity as alleged by them. As rightly submitted by the respondent, that the visual identification of incontrovertible evidence of recognition by PWl and PW4 was credible and reliable in the circumstances of this case. So, the trial court did not fall into error in arriving to that conclusion as it did. The ground hence lacks merits. On the 3'^ ground of appeal that the prosecution evidence varies with the particulars of the charge sheet, it is undisputed that PWl and PW2

attested that the stolen Tv by the appellants was of 40 inches contrary to the particulars of the charge sheet which stated that it was of 48 inches. The question is whether such variation on the size of the TV would be so fatal so as to crumble the prosecution case. In the case of Joshua Joseph @ Paulo vs Republic, (Criminal Appeal 307 of 2018)[2022] TZCA 610(6 October, 2022) TanzLII it was lucidly remarked that: '7/7 our view, failure by PWl to state the value of his stolen mobile phone in his evidence did not amount to any contradiction considering that PWl was consistent that the assailants snatched his mobile phone together with cash TZS. 200,000/=. There was no suggestion that the mobile 12 phone was an item incapable of being stolen thereby affecting the existence of the essential ingredients of the charge ofarmed robbery... we have found no contradictions in the evidence ofthe prosecution witness which would have gone to the root of the case thereby diluting it to the appellant's benefit". See; Director of Public Prosecutions vs Lengai Die Sabaya & Others^ (Criminal Appeal No. 231 of 2022)[2023] TZCA 17853(17November,2023)TanzUL It is noteworthy to state at the outset that, the alleged television was well identified in other crucial aspects like the brand of the TV which Samsung and black in colour. The only discrepancy was in size difference of 8 inches which I find it

fair to say that the variation did not create any substantial variation between the charge and the evidence adduce to make the trial court draw an inference against the prosecution. I therefore find the variation as minor for a reasonable man to have contradicted it, the perpetrators were well identified through recognition by PWl and PW4 during the commission of the offence. Additionally, in the submissions, the appellants did not dispute of made any submission against the use of weapons while stealing the said television with violence, what they dispute is certainty of the size of the said television whether it was of 40 inches or 48 inches, which, in my opinion, the aforesaid infraction is minor and does not go to the root of 13 the case to let them walk scoot free. I therefore find the 3^^ ground of appeal to also be lacking in merits. Moving to the 4^^ ground of appeal, whether the prosecution case was proved to the hilt. This should not detain me much. Although, the appellants submitted that the prosecution failed to procure the attendance of the arresting officer before the trial court, hence, fatal. With due respect, their submission is misplaced. It is a settled law that there is no specific number of witnesses to testify before the court as underscored in section 143 of the Evidence Act, Cap.6 R.E 2022. See; Thobias Michael Kitavi vs Republic (Criminal Appeal No. 31

of 2020} (supra). In this case, there is no dispute that the appellants were apprehended by Daniel Yohanna, police officer and Roger after the commission of the offence. In the premises, I am at one with the respondent that, witnesses are summoned to testify on disputed facts only, and not contra wise, an inference could only be drawn against the prosecution is the omission to call a witness involves a key witness whose missing evidence leaves a gap in the chain of proving the case beyond reasonable doubt. In the absence of that, there is no hard and fast rule that forces the prosecution to call a certain number or types of witnesses. Theirs is one duty, to prove the case beyond reasonable doubt by calling such number of witnesses they find will suffice to convince the trial court to enter a conviction. 14 Having found the first and third grounds of the appeal in the affirmative. More so, the spotted variance between the charge sheet and the evidence on record, is minor one and does not go to the root of this case. In totality, my answer to this ground is also obvious that during trial, the prosecution case was proved beyond all reasonable doubt as illustrated above. From the above, I associate with the trial magistrate's finding that the appellants were sufficiently identified through unassailable evidence of recognition and the evidence adduced sufficed to prove their guilt. I therefore see no reason to interfere with the findings of the trail court, the conviction was well founded and the mandatory sentence so imposed on the appellant proper. Consequently, I find the appeal is bereft of merit and it is hereby dismissed in its entirety. Dated at Dar es salaam this 13^ day of December, 2024. f\ 15