Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA SUB REGISTRY

AT ARUSHA CRIMINAL APPEAL NO. 24002 OF 2024 (C/F Criminal Case No. 55 of2023 in the District Court ofArumeru at Arumeru) ELIAS ZAKARIA....................................................................... 1st APPELLANT RASULI OMAR.......................... 2nd APPELLANT KENNEDY ELIREHEMA..........................................................3rd APPELLANT DANIEL GODFREY....................................................................4th APPELLANT

VERSUS THE REPUBLIC........................ RESPONDENT

JUDGMENT 24h March & 4* April 2025 Masaraf J The Appellants herein are challenging the conviction and sentence imposed against them by the District Court of Arumeru at Arumeru ("the trial court") in Criminal Case No. 55 of 2023 for the offence of Armed Robbery, contrary to section 287A of the Penal Code, Cap. 16 [R.E 2022] and the offence of being found in possession of goods suspected of having been stolen or unlawfully acquired contrary to section 312(l)(b) of the Penal Code, Cap. 16 [R.E 2022]. The trial court, upon evaluating the evidence presented before it, proceeded to convict and sentence the Appellants to a custodial sentence of 30 years and 3 years for the 1st and 2nd counts respectively. Dissatisfied with the said decision, the Appellants appealed to this Court armed with five grounds of appeal hereunder reproduced verbatim: 1 | Page 1) That, the trial court erred in law and fact in convicting and sentencing the Appellants herein while the Republic did not prove its case beyond reasonable doubt.

2) That the honourable magistrate erred in law and in fact by convicting and sentencing the Appellants without properly evaluating the evidence as adduced during hearing.

3) That, the learned trial magistrate erred in law and fact by convicting and sentencing the Appellants while there was variance between charge and the evidence on item stolen and the place of commission of the offence.

4) That, the trial court erred in law and fact in convicting and sentencing the Appellants based on identification parade which was conducted contrary to the law.

5) That, the trial court erred in law and in fact in shifting the burden ofproof to the Appellants contrary to the law. At the hearing, Mr Sylvester Kahunduka, learned advocate, appeared for the Appellants, while Mr Philbert Msuya, learned State Attorney, appeared for the Respondent. Hearing proceeded by way of filling written submissions. Both Counsel filed their respective submissions. Responding to submissions filed on behalf of the Appellants, the learned State Attorney conceded and supported the Appellants' appeal. Submitting in support of the Appeal, Mr Kahunduka argued that the charges against the Appellants were not proved beyond reasonable 2 | Page doubts. That, there were various aspects of the charge at fault, one being the variance between the charge and the evidence on the items stolen and, two, on the place of the commission of the offence. Mr Kahunduka added that, as per the charge sheet, items named to have been stolen were: one mobile phone, make Tecno, valued at TZS 22,000/=; cash money, TZS 150,000/= and a full set car music system, valued at TZS 3,500,000/=. That, the evidence adduced by PW3, the victim, at pages 20, 21 and 25 of the trial court typed proceedings, differed with the charge, as he testified that the stolen items were: a phone, make Tecno, cash money, small speaker, radio, jacket, car door handle, care battery, car side mirror, shoes and

belt. The other variance pointed out was on the scene of the commission of the offence; that is, while the charge sheet named the place to be Ngarasero area, PW3 and PW4 named the area to be Uwanja wa MagufuH. Mr Kahunduka went on to state that the Prosecution side, irrespective of the above variances, did not, by virtual of section 234(1) of the Criminal Procedure Act, seek leave to amend the charge sheet in order to align it with the evidence on record. As no amendments were made to the charge, the offences against the Appellants remained unproven. To buttress that position, he made reference to 3 | Page the cases of Abel Masikiti vs Republic, Criminal Appeal No. 24 of 2025, Issa Mwanjiku ©White vs Republic, Criminal Appeal No. 175 of 2017 and Thabit Bakari vs Republic, Criminal Appeal No. 73 of 2019 (all unreported). In his reply, Mr Msuya submitted that the Respondent is cognizant of the position of the law that the allegations contained in the charge sheet must be supported by the prosecution's evidence so as to prove the charge beyond reasonable doubts and that any variance between the charge sheet and the evidence can only be remedied by invoking section 234(1) of the Criminal Procedure Act, Cap. 20 [R-E 2022] before the end of a trial. He went on to say that, upon perusal of the grounds of Appeal and the typed trial court proceedings, he had no option but to support

the appeal on account that there is variances between the charge sheet and the evidence adduced by the Prosecution witnesses, specifically PW2 and PW3, regarding the the stolen properties as listed in the charge sheet and those mentioned by the witnesses during trial. That, it was the Prosecution's obligation to amend the charge sheet in order to accommodate the additional items; and since the same was not done, then the charge against the Appellants remained unproven at the required standards. He relied on the decision in the case of 4 | Page Godlisten Raymond Mosha @Gibson vs The Republic (Criminal Appeal No. 247 of 2020) [2023] TZCA 17676 (29 September 2023) which was quoted with approval in the case of Abel Masikiti vs Republic (supra). Basing on the submission made, the Respondent is of the view that the charge against the Appellants was not proved. I have carefully considered the submissions made by both Counsel. The issue calling for determination by this Court is whether the charges against the Appellants were proved to the required standards. In criminal cases, the law puts the burden of proof on the prosecution to prove its case beyond reasonable doubts. For the court to conclude that an offence against an accused person was proved beyond reasonable doubts, it has to be established that the said accused person was properly arraigned before a court of law. The

starting point for that consideration is the charge. A charge is an essential aspect in any criminal trial as it informs an accused person precisely, concisely and understandably, of the offence he stands charged of. This is significant as it forms the basis against which his defence, if any, is to be based. Section 132 of the Criminal Procedure Act, Cap. 20 states that: 5 | Page "Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as the nature of the offence charged." In this Appeal, the Appellants and the Respondent are at one that there is variance between the charge levelled against the Appellants and the Prosecution evidence adduced at the trial. Consequently, they argue, the charges against the is Appellants remained unproven. I do endorse and subscribe to their unanimous agreement in that front. A cursory examination of the charge prepared and the evidence to prove it leads me to conclude that the Prosecution slept on the job in prosecuting their case against the Appellants. Their slumber has to benefit the Appellants. The particulars of the offence on the 1st Count as per the charge sheet, reads as follows: "ELIAS S/O ZACHARIA, RASULI S/O OMARY, KENNEDY

S/O ELIREHEMA, GODWIN S/O MELIKIZEDEKI, DANIEL S/O GODFREY and SAMWEL S/O GODFREY, on 3d July 2023, at Ngarasero area, within Arumeru District in Arusha Region, jointly and together did steal one mobile phone make Tecno, valued at TZS 22,000/= cash money amounted to Tanzania Shillings One Hundred and Fifty Thousands (Tzs 150,000/=), a full set of car music system (Radio, Buster and speaker) valued at (Tzs 3,500,000/=), the 6 | Page properties of one HONEST PETER TARIMO and immediately before and after such stealing did attack him with traditional weapons to wit; bush knife, sword and screw driver in order to obtain and retain the said properties."(Emphasis added) On the 2nd Count, the particulars of the offence went as follows: "ELIAS S/O ZACHARIA, RASULI S/O OMARY, KENNEDY S/O ELIREHEMA, GODWIN S/O MELIKIZEDEKI, DANIEL S/O GODFREY and SAMWEL S/O GODFREY, on July 2023 at Ngarasero area, within Arumeru District in Arusha Region, jointly and together were found in possession of car music system, 14 inches Aborder TV, speaker make sea Piano, car handle, one khaki coloured jacket, one car radio make sonny with black and silver colour, having regard to all circumstances which were suspected to be stolen or unlawfully acquired/'(Emphasis added) From the above extracted particulars of the charge sheet, it is clear that the alleged stolen properties in the 1st count belonged to the

victim, one HONEST PETER TARIMO (PW3). In his testimony before the trial court, PW3 stated, inter alia, that: "At Magufuii area they searched me, took the phone, money and removed some parts of the car, they took the speaker, radio, coat and door handle and other properties which were in car like car battery, side mirrors.” (Emphasis added) 7 | Page A glance at that evidence leaves no doubts that the evidence of PW3 is at variance with the charge sheet laid against the Appellants. It is is difficult to fathom that the Prosecution did not note the variances between that evidence and the charge they had laid against the Appellants at the trial. If the prosecution noted that there were variances between the charge sheet and the evidence in respect of the items stolen and those found in possession of the Appellants, it was required of them to seek leave of the court to amend the charge in order to reflect the reality. However, that was not done. Failure to amend the charge sheet to align the evidence and the charge was fatal and prejudicial to the Appellants. Its consequences are dire as was held in the decision of the Court of Appeal in the Case of Mohamed Juma @Mpakama vs Republic (Criminal Appeal No. 385 of 2027) [2019] TZCA 518 (27 February 2019), where the Court ruled as follows: "The discrepancy between the type of weapons mentioned in the particulars of the charge, and the

weapons mentioned by the prosecution witness is not minor. It goes to the root of the third count/' 8 | Page By parity of reasoning, the discrepancy between the items allegedly stolen from the victim as mentioned in the charge sheet and the items mentioned by the prosecution witnesses cannot be said to be minor. Thus, as there is no scintilla of doubts about the discrepancies apparent in the charge sheet and the prosecution evidence on the items stolen as well as on the area where the offence was committed, the conviction and sentence against the Appellants founded on such evidence cannot be vindicated. The variances mentioned go to the root of the two counts against which the Appellants were charged, convicted and sentenced of. Consequently, given the ailing of the Prosecution evidence explained above, the case against the Appellants was not proved beyond reasonable doubts. The appeal is therefore allowed. The conviction and sentences against the Appellants are hereby quashed and set aside. The Appellants to be released from custody unless otherwise lawful held. DATED and DELIVERED at ARUSHA this 4th day of April 2025. '.BTMasara

JUDGE 9 | Page