JUDGMENT DC CRIMINAL APPEAL NO 31128 OF 2024 FARIDU JAMALI V REPUBLIC FINAL NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY)

AT DODOMA DC CRIMINAL APPEAL NO. 31128 OF 2024 (Arising from Criminal Case No. 113 of 2023 of the District Court of Singida at Singida before Hon R.C. Migani dated 16th October 2024) FARIDU S/O JAMALI.................................................................... APPELLANT

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

JUDGMENT 18 Nov. & 13th Dec., 2024 KAGOMBA, J.: In this appeal, FARIDU S/O JAMALI (henceforth "the appellant") is challenging the whole judgment and sentence pronounced against him by the District Court of Singida at Singida (henceforth "the trial Court") delivered on 16th October, 2024 whereby he was convicted of the offence of Stealing by Servant C/S 265 and 271 of the Penal Code [Cap 16 R.E 2022] (Henceforth "the Penal Code) and was sentenced to serve a five-year jail term as well as to refund the victim of the theft the stollen amount of TZS 30,309,700/= (Thirty million, Three Hundred Nine Thousand Seven Hundred) within six months from the date of the Judgment. i It was alleged before the trial Court that on the 9th day of July, 2023 at Peris General Supply Ltd office, Majengo area, Minga Ward, Mungumaji Division in the District and Region of Singida, the appellant did steal the said amount of TZS 30,309,700/= which came into his possession on the account of his employer Maririta D/O Gido, who deals with electronic Money transactions as an Agent. According to the prosecution case, the appellant was not allowed to move outside the office with Cash Money, rather to leave the same in office or convert it into floating Money. That, on the material date, contrary to the terms of working, the appellant took with him the said amount of money to his home to the detriment of his

employer. The matter was reported to Police and the appellant was arrested and on interrogation he denied to have stolen the said money. He argued that the same was lost during a motorcycle accident which he encountered while returning home from office. Having heard from five (5) prosecution witnesses and two (2) defence witnesses, plus a statement of the victim as well as the exhibits tendered, the trial court made a finding that the appellant had faked the accident with intention to defraud the money from his Boss. It proceeded to convict him and sentenced him as aforesaid. 2 Being aggrieved, the appellant has appealed to this Court based on the following grounds: - 1. That, the trial magistrate erred in law and in fact by convicting the appellant without cogent evidence adduced by the prosecution side to prove that the appellant committed the crime beyond reasonable doubt.

2. The trial court erred in law in admitting and taking into account the victim's statement without adhering to the procedure set down by law.

3. That, the trial magistrate erred in law and in fact by convicting the appellant without plausibly taking into account the defense and his witness.

4. That, the trial magistrate erred in law in convicting the appellant without a proper analysis of evidence that was before it. At hearing, Ms. Salma Mussa, learned Counsel represented the appellant while Ms. Mulongo Tenge and Mr. Daniel Lyatuu, learned State Attorneys appeared for the respondent. Ms. Mussa started by citing the case of Francis Fabian @ Emmanuel vs. Republic, Criminal Appeal No. 261 of 2021, CAT at Iringa, to underscore 3 the importance of a charge sheet in informing the accused on the nature of accusation facing him to enable him prepare his defence. Connected to the above, she submitted in respect of the first ground of appeal, that the prosecution did not prove their case beyond reasonable doubt, firstly; for a reason that the date of the commission of offence in the charge sheet varied with the date in the evidence. Clarifying, she referred to PW1, PW2 and PW3 who testified that the incident occurred on 6th July, 2023, while the date of commission of the offence in the charge sheet is 9th July, 2023. Ms. Mussa added that during cross-examination, PW3 stated again that the offence was committed on 9th July at 09.20PM while PW4 testified that it occurred on 8th July and in another testimony, he stated that it was committed on 9th July,2023. To unearth further contradictions, Ms. Mussa submitted that in her statement that was received in court under section

34B of the Evidence Act, [Cap 6 RE 2022], the complainant also mentioned 6th July, 2023 as the date the offence was committed. Referring to the case of Francis Fabian (supra), Ms. Mussa emphatically argued that the prosecution had to lead evidence showing the 4 same date of commission of the offence as is in the charge sheet, adding that in case of variance, the charge had to be amended or else it was rendered unproved and the accused person was entitled to an acquittal. The learned Counsel further cited variance in the amount allegedly stollen, with PW4, the investigator, mentioning TZS 27,469,000/- while the complainant wrote the amount of TZS 38,246,795/- but the figure in the charge sheet is TZS 30,309,700/-. According to her, when PW4 was cross­ examined, he testified that another prosecution witness would be called to prove the stollen amount, however, none was eventually called. Still on the variances, Ms. Mussa questioned the reasons for prosecution not calling any of the shareholders of M/S Peres General Supplies Ltd or one Maririta Gido to testify on the amount lost since the money was a property of the company and not a personal property of the said Maririta Gido. She argued that, such officials of the company should have testified on the ownership of the lost money and whether the appellant was the company's employee. In the above connection, the Counsel urged the

court to draw an adverse inference on the prosecution for not calling such key witnesses. The 5 case of Abdallah vs. Republic [1991] T.L.R 7 was cited in support of this argument. It was Ms. Mussa's third point of contention that the visual identification of the appellant by PW1 was uncertain. She referred to the evidence of PW1 that he was the first person to arrive at the scene, there was no another person who arrived there before him, there was enough light, he used the light of his phone torch to call people, but he didn’t see the face of the appellant to argue that the evidence of visual identification is weak and most unreliable. She cited the case of Waziri Amani vs. Republic [1980] T.L.R 250 and DPP V. Mohamed Said & Another, Criminal Appeal No. 432 of 2018, for this contention. Fourthly, the Counsel submitted that in the instant case none of the prosecution witnesses proved the guilty intention of the appellant, which is necessary ingredient of the offence, apart from asportation. According to her, the loss occurred due to an accident in the course of the ordinary doing without any ill intentions. The counsel questioned the reason for the two investigators of the case to state nothing in their testimonies regarding the phones belonging to 6 the appellant's employer used to transact MPESA, Tigo Pesa, and Airtel Money which the appellant had in possession as he mentioned

in his cautioned statement. Based on the above four points, the learned Counsel wound up the first ground of appeal by contending that the case against her client was not proved beyond reasonable doubts. On the second ground of appeal, she submitted that the trial court erred in receiving the victim's evidence without adhering to the procedure stated by the law. She argued the trial court admitted the statement of the appellant to be used as part of prosecution evidence without meeting the conditions for receiving such statement as stated under paragraph (a) to (f) of section 34B (2) of the Evidence Act [Cap 6 RE 2022]. This provision is reproduced as hereunder: - "34B. -(1) Not Applicable (2) A written or electronic statement may only be admissible under this section- (a) where its maker is not called as a witness, if he is dead or unfit by reason o f bodily or mental condition to 7 attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation o f any law he cannot attend; (b) if the statement is, or purports to be, signed by the person who made it; (c) if it contains a declaration by the person making it to the effect that it is true to the best o f his knowledge

and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if he willfully stated in it anything which he knew to be false or did not believe to be true; (d) if, before the hearing at which the statement is to be tendered in evidence, a copy o f the statement is served, by or on behalf o f the party proposing to tender it, on each o f the other parties to the proceedings; (e) if none o f the other parties, within ten days from the service o f the copy o f the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence: Provided that, the court shall determine the relevance o f any objection; 8 (f) if where the statement is made by a person who cannot read it, it is read to him before he signs it and it is accompanied by a declaration by the person who read it to the effect that it was so read/ It is Ms. Mussa' s contention that the requirements under sub-section 2(a) and 2(c) were not met. Clarifying her contention in respect of sub-section 2(a), the appellant's Counsel submitted that there was an affidavit of the process server, though not tendered in evidence, which showed that the complainant was in Kenya for medical reasons as an outpatient, but she did not appear for the trial, which begun on 24th August, 2023, without the prosecution showing

the court any efforts taken to bring the complainant to the court. The learned Counsel argued further that the complainant's passport showed that she exited Tanzania on 25th May, 2024 but on 29th May, 2024 she was allowed to return home. According to the learned Counsel, the person who said that the complainant was in Kenya was not called to testify and neither did the investigator or the process server come to testify that the complainant was in Nairobi. 9 It was her further argument that for the statement to be admissible under section 34B(2)(a) and (c), it ought to contain a declaration of its maker that the same was true to the best of her knowledge, without which admission of such evidence will be contrary to the law. In her view, the Police Form 2A indicated nonfulfillment of this requirement, adding that even the signature of the person giving it was illegible. Citing the case of Adinardi Iddy Salimu & Another vs. Republic, Criminal Appeal No. 298 of 2018, CAT at Arusha, the learned Counsel argued that in order to use a statement admitted under section 34B (2), the conditions stated thereunder must be cumulatively met so as to guide against prejudicing the accused person. On the third ground of appeal, Ms. Mussa submitted that the appellant and his witness, DW2, testified that the money was lost due the motorcycle accident but such evidence was not considered by the

trial Court. According to the learned Counsel, DW2 was a credible witness who was also lined up to testify for the prosecution side. The Counsel recalled DW2's testimony that he was the first person to report to the police about the loss of money, obtained a loss report and reported that 8 phones were 10 lost along with TZS 30,309,700/- and testified that it was usual to go home with money due to lack of safe in the office. Surprisingly, the learned Counsel argued, in the cross-examination, DW2 was not questioned about that tradition of going with money home. The Counsel contended that by not cross-examining DW2 on that aspect, prosecution showed that DW2's assertion was true. Ms. Mussa ended her submission in chief by praying the court to set aside both the jail sentence and the order for refund of the amount of money lost. Citing the case of John Makobela Kulwa and Erick Juma @Tanganyika [2012] T.L.R 216, she reminded the court that a person ought not to be found guilty of a criminal offence because his testimony is not believed but on the strength of the prosecution case. Replying, Ms. Mulongo Tenge, Learned State Attorney opted to combine the third and fourth grounds of appeal together and to argue on the remaining, first and fourth grounds separately. Reacting to her counterpart's submission on the first ground of appeal, Ms. Tenge opposed the contention that the offence

was not proved to the required standard. She submitted that since the appellant was charged for 11 stealing by servant under sections 265 and 271 of Penal Code, the first element to be proved was that the money was entrusted to the accused for safe keeping. Secondly, the prosecution had to prove that it is the accused who converted the money. Clarifying on how the above elements of the offence were proved, the learned State Attorney referred to page 25 of the proceedings, where PW3 is on record testifying that the appellant conceded that he is an employee of Peris General Suppliers Ltd, a company that was under supervision of Maririta Ogido; and on page 32 of the proceedings where PW4 showed how the appellant was entrusted with the money, as a main agent. According to Ms. Tenge, these testimonies were corroborated by the statement of the complainant (Exhb. P2), hence the offence was proved. The learned Counsel submitted that even the appellant, when testifying as DW1, on page 55 of the trial proceedings, conceded that he was entrusted with, and took money, but only objected the obligation to bank the money. For the above reasons, she argued, the matters raised by the appellant's Counsel in her submission in chief are not issues in dispute. Ms. 12 Tenge added that her counterpart does not object the fact that the money was in the hands of the appellant but she has just added, in

her submission, that the same was lost in the accident. According to the learned State Attorney, that defence is an afterthought. On the argument that prosecution failed to prove ownership of the money, Ms. Tenge replied that ownership is not an element of the offence. It was her additional contention that her counterpart, who also represented the appellant during trial, did not raise such an argument, hence the same is but an afterthought. According to the learned State Attorney, the charge which was read to the appellant and which the appellant used to defend himself stated clearly where the money came from. On the weaknesses of identification at night, the learned State Attorney replied that such an argument was not key to the case. She added that the PW1, who was the first to turn up to the scene, stated the truth. According to Ms. Tenge, the question of identification does not remove the appellant from liability since the prosecution witnesses were able to show that the accident was only hoax to enable the appellant steal the money. 13 Likewise, Ms. Tenge found immaterial the question how the appellant benefitted from the incident. Addressing the defects in the charge sheet, learned State Attorney emphatically submitted that the charge is correct and the date stated therein is correct. She clarified that in mentioning 6th July and 9th July, the prosecution witnesses were

talking about the date when the appellant had earlier planned to fake the accident and the date it purportedly occurred. She added that all the elements of the offence were proved beyond reasonable doubt, and the appellant conceded to all such elements in his defence. In this connection she recalled the quotation in Nyerere Nyague vs. Republic, Crim. Appeal No. 67 of 2010, CAT at Arusha, reproduced in Isaya Athanas vs. Republic, Criminal Appeal No. 435 of 2021, CAT at Tabora, that "a confession made in court is o fgreater effect than any other proof. Hence, she found the first ground lacking in merit. Replying to the second ground of the appeal, which impugns the complainant's statement for being received contrary to the law, the learned State Attorney opposed that argument. Her contention is that the appellant's grievances against admission of the statement were duly considered by the 14 trial court alongside the prosecution's position before ruling in favour of admitting the same. Under such circumstances, it's the learned Attorney's view that, section 34B (a) to (f) of the Evidence Act, was duly observed. On the argument that the statement was not tendered in court and no efforts were shown to cause the appearance of the complainant to testify, Ms. Tenge submitted that an affidavit was produced to prove that summonses were served to the complainant, and a notice to rely on

the said statement was given to the appellant’s side who had time to satisfy themselves on it. Hence, she contended that the impugned statement (Exhb. P2) was admitted according to the law. On the argument that Exhb.P2 has no declaration, and that the signature is illegible, she replied that that argument is an afterthought, as the appellant had never raised such an issue in the trial court. She deemed the argument as an abuse of the court process as the provision of section 34B (2) (e) of the Evidence Act, requires any such objection to be brought to the court's attention within (10) ten days after being served with the statement, and not during an appeal. 15 For completeness of her argument, Ms. Tenge submitted that the declaration is on the first page of the exhibit. And, regarding the signature being fainty, she replied that such a concern ought to have been raised during trial. Turning to the third and fourth grounds of appeal, where the appellant laments that the defence evidence was not considered and no analysis of evidence was done, the learned State Attorney referred to page 5 to 8 of the trial Court Judgment to oppose such arguments. According to her, the trial Magistrate analyzed the evidence and considered the defence evidence too. For reassurance, the learned State Attorney prayed this court to step into the shoes of the trial court to re-analyze the evidence and

make own conclusion. She ended her reply submission at this juncture calling for her colleague to make an additional reply. Adding to the respondent's reply, Mr. Daniel Lyatuu, learned State Attorney, cited the decision of this Court in Simon Samson & 3 Others vs. Republic, Criminal Appeal No. 61 of 2020 High Court at Musoma (unreported), and the case cited therein, to contend that the law permits the court to take into account the defence evidence that advances the 16 prosecution case. He argued that in the course of his defence, in the instant case, the appellant advanced the prosecution case by confessing to be an employee as well as the element of asportation. To clarify, Mr. Lyatuu submitted that the appellant confessed that he moved with the money and even clearly stated the amount of money he had taken with him, which is the same as the amount stated in the charge sheet. He added that the appellant further cleared the doubt on the date of the incident, which is the same as the date indicated on charge sheet. For this reason, he argued, the appellant's defence only left the prosecution with the task of proving one element of the offence, which is, his guilty mind. According to Mr. Lyatuu, the latter aspect was proved by circumstantial evidence based on the conduct of the appellant of making a fake accident to justify the loss of the said amount of money which he had

carried with him. Clarifying on the guilty mind element, the learned Attorney submitted that it was clear from the evidence adduced by PW1 and PW2 that the accident was faked since despite the damage to the motorcycle, the appellant had no any injuries, and PW1 testified that there was no any car 17 that had passed at scene at the material time contrary to the appellant's testimony that there was a car the lights of which caused him the accident. Mr. Lyatuu also recalled the testimony of PW3, whose sketch map of the scene of crime helped to prove that the accident was fake; and PW5, a Clinical Officer, who proved that the appellant had no injures anywhere outside or inside his body following the accident, hence an adverse inference that the accident was only a shield for the appellant's act of stealing. To further justify that the accident was fake, Mr. Lyatuu recalled that all of the appellant's exhibits namely; PF3, X-ray tests, Ultrasound tests results, Radiology Report and Chest Examination Report, which despite not being read in court as required by law, showed that the appellant had no any injuries. Adding his voice regarding nonobservance of section 34(b) (2) of the Evidence Act, based on a lamentation that there was no affidavit produced in court, Mr. Lyatuu also disagreed. He referred to page 59 of the trial proceedings, to argue that the appellant's side acknowledged

to have received an affidavit of G.2690 D/C Waziri, the Summons Server. 18 He also referred to the ruling that granted leave for admission of the impugned statement of the complainant, where at page 43 of the proceedings, the trial Magistrate stated that she had read the affidavit and found that there were efforts to find the victim (Folio B) who was outside the country since 25th May, 2023 where she went to see a doctor. For all the above, Mr. Lyatuu echoed his colleague's submission that the prosecution followed the procedure by lodging the notice of intention to produce the said statement but the appellant didn't file his objection in ten days' time as required under section 34B (2) (e) of the Evidence Act. Referring to page 36 of the proceedings, the learned State Attorney submitted that the defence spent 40 days up to 19th August, 2024 to raise the said objection, which was overruled by the trial court. On the lamentation that the identification by PW1 was weak as it was done by using torch light, Mr. Lyatuu prayed the court to dismiss it because according to page 20 of the trial proceedings, PW1 identified the appellant using bulb light and phone light, a testimony that was corroborated by PW2 at page 23 of the proceedings who stated clearly that " kulikuwa na mwanga angavu, uliomulika barabara yote, na ulitoka kwenye fence ya nyumba 19 Hiyozunguuka eneo hilo" (Translated

as; there was bright light that illuminated the entire road, which came from the fence of the house surrounding that area). He added the appellant's Counsel did not cross­ examine the prosecution witnesses on the fact that there was enough light. He ended his reply submission by praying the court to dismiss the appeal. In her rejoinder, the Counsel for the appellant reiterated her submission in chief. She repelled as a misdirection the submission that the appellant filed an objection 40 days after being served with intention to use the complainant's statement. She emphatically said that the notice of objection was timely filed online vide the eCMS Judiciary on 5th August, 2024 as document No. AD Re;PL 202408051833499873. Regarding the affidavit of D/CPL Waziri, she rejoined that it was not received in court but was attached to the statement. It was her contention that for the court to rely on that exhibit, the same ought to have been tendered, tested and admitted so as to corroborate what was said about non-availability of the complainant. 20 The learned Counsel further opposed the assertion that the appellant defence helped the prosecution case. In this respect, she distinguished the instant case with the case of Isaya Athanas vs. Republic (supra) for a reason that in the instant case, the appellant did not make any confession before the trial court but only stated that he got

accident on 6th July, 2023 and that is where he lost the money. Regarding proof of the appellant's guilty mind, she rejoined that no any prosecution witness testified as to why the appellant fainted. Lastly, the learned Counsel expressed her opinion that the case was not proved at the required standard. She prayed the court to allow the appeal. After a careful consideration of the parties' submissions, the grounds of appeal and the law, the issue for determination is; whether the prosecution proved the case against the appellant beyond reasonable doubt. The provision of Section 265 and 271 of the Penal Code under which the appellant was charged and convicted, provides: - 21 "265.- Any person who steals anything capable o f being stolen is guilty o f theft, and is liable, unless owing to the circumstances o f the theft or the nature o f the thing stolen, some other punishment is provided, to imprisonment for seven years. [ Emphasis added] "271. - Where the offender is a clerk or servant and the thing stolen is the property o f his employer or came into the possession o f the offender on the account o f his employer, he is liable to imprisonment for ten years. [Emphasis added] I shall revert, in due course, to consider the adequacy of the above provisions of the law under which the appellant was charged. What the counsel for both parties appear to agree with the trial Magistrate

is that the offence of stealing by servant, is composed of two basic ingredients or elements, namely the actus reus constituted by the act of taking the money or asportation and mens rea constituted by the guilty mind accompanying it. In this respect, the trial court correctly cited decision of Hon. Msumi, J (as he then was) in the case of Christian Mbunda vs. Republic, [1983] T.L.R 340 where his Lordship, among other things, stated: 22 "(i) It is an elementary rule o f law in order to convict an accused o f theft the prosecution must prove the existence o factus reus which is specifically termed as asportation and mens rea or animus furandi" The above background suffices to set the court in motion to dispose of the four grounds of appeal as follows: - In the first ground of appeal where the appellant laments that the case was not proved beyond reasonable doubts, there are four specific complaints, namely; variance of the date of commission of the offence in the charge sheet and the evidence adduced, variance in the amount stollen, weak and unreliable visual identification of the appellant and lack of proof of the guilty mind of the appellant. Starting with variance in the date of the commission of the offence, it is true that there is a clear variance between the date the offence is alleged to have been committed as stated in the charge sheet, which is 9thJuly, 2023 and the

date the prosecution witnesses, and even the appellant stated in their respective testimonies, which is 6th July, 2023. I have perused the evidence adduced during trial and I can confirm that all the prosecution witnesses who made oral testimonies in court stated that the offence was committed on 6th July, 2023 and not 9th July, 2023 as per the charge sheet. 23 Equally true is the variance in the amount stollen whereby the charge sheet quoted TZS 30,309,700/= but PW4 Insp. Osward Marcus Munthar testified that it was TZS 27,469,000/= but when cross-examined, he stated that there are people who know why the loss is TZS 30 million and not TZS 27 million. It is not true that in the complainant's statement (Exhb. P2), the complainant wrote TZS 38,246,795/- as the amount lost, rather she indicated that that was the amount she availed to the appellant as capital having recalled all the monies previously in the hand of the appellant following her suspicion of questionable transaction by the appellant. This clarification aside, the bottom line is that there is, indeed, a variance in the amount of money stollen as aforesaid. Ms. Mussa cited the decision of the Court of Appeal in Francis Fabian @ Emmanuel vs. Republic (supra) to underscore the need for a variance- free charge sheet and for the position that once there are variances the offence is deemed not to be proved thereby entitling

the accuse for acquittal. I am quite aware of the above position of the law which was also stated in other decisions of the Court of Appeal (See: Issa Mwanjiku @ White vs. Republic, Criminal Appeal No. 175 of 2018 CAT (unreported); Mashaka 24 Bashiri vs. Republic, Criminal Appeal No. 242 of 2017 CAT (unreported); Masota Jumanne vs. Republic, Criminal Appeal No. 137 of 2016 (unreported); Edward Luambano vs. Republic, Criminal Appeal No. 190 of 2018 CAT (unreported), to mention but a few). For example, in Mashaka Bashiri vs Republic (supra), having noted that there was variance between the charge sheet and the evidence adduced in respect to the items alleged to be stollen, and the prosecution did not seek leave of the court to amend the charge, the Court of Appeal stated: - "...It is therefore evident that, the prosecution did not seek leave to amend the charge to include all the alleged stolen properties therein. The failure to amend the charge sheet is fatal and prejudicial to the appellant hence leads to serious consequences to the prosecution case.." In the end the Court of Appeal went on to hold that the prosecution case was not proved to the required standard. The above is one position, but there is a contrary position by which I am inspired the most, owing to its closer similarity to the matter at hand and the reason stated by the Court of Appeal. In Bore s/o Cliff vs

Republic, Criminal Appeal No. 193 of 2017, CAT (unreported), the Court of Appeal was 25 confronted with a variance similar to the one at hand, whereby the charge showed that the offence was committed on 19th February, 2016 and the evidence showed to the contrary, that it was committed on 19th March, 2016. Owing to that variance, the appellant therein lamented that his conviction was based on a defective charge. The Court of Appeal held as follows: - It is true that there is variance between the charge and the evidence and the issue for determination is therefore, whether the discrepancy rendered the charge fatally defective. There is no rule that whenever there is variance between the charge and the evidence then the proceedings are vitiated. Rather, the test is whether the variance had the effect o f prejudicing the accused person. [Emphasis added] The same position was taken by the Court of Appeal in Osward Mokiwa @ Sudu v. Republic, Criminal Appeal No. 190 of 2014 (unreported), where there was also variation of dates of commission of the offence. The Court of Appeal considered the effect of the discrepancy and stated: "In our view, the test applicable by an appellate court when determining, at first, the existence o f a defective charge, and secondly, its effect on an 26 appellant's conviction, is whether the conviction based on the alleged defective charge occasioned

a failure o f justice or pronounced prejudice to the appellant. This test is in consonance with the curative provisions o f section 388 o f the CPA we referred to earlier. Besides, section 234 (3) o f the CPA provides an additional cure to errors on the time stated on the charge, be it the actual hour at which or the definite day on which or month in which the offence was allegedly committed." [Emphasis added] Similar position was taken in a plethora of other decisions including the recent one in Said Majaliwa vs. Republic, Criminal Appeal No. 2 of 2020, CAT (unreported); Selemani Rajab vs Republic, Criminal Appeal No. 149 of 2013, CAT (unreported); Damian Ruhele vs Republic, Criminal Appeal No. 501 of 2007, CAT (unreported); Issa Ramadhani vs Republic, Criminal Appeal No. 409 of 2015, CAT (unreported) and Nkanga Daudi Nkanga vs Republic, Criminal Appeal No. 316 of 2013 to mention but a few. Guided by the decisions referred to immediately above, I agree with the Counsel for the appellant that, indeed there was variance which made the charge defective, however the said defects in dates and the amount of 27 money stollen did not prejudice the appellant, as he was able to clearly understand the allegation facing him and was able to martial his defence accordingly. The third complaint under the first ground of appeal is weak and unreliable visual identification of the appellant.

This lamentation shall not detain me because, as the learned State Attorneys submitted, it is non-issue. With ample evidence adduced both by prosecution and the defence (the appellant) that the appellant was involved in the disputed accident, he was treated by PW5 Christopher Daimon, and the appellant even tendered exhibits D1 to D5 during trial to show he was injured in the said accident where he lost the money, how does the issue of his identification arise at this stage? Certainly, the argument that there was no enough light to identify the appellant is a misdirection on part of the appellant's counsel. I therefore treat it as such. Last and the fourth sub-grounds of the first ground of appeal is the lamentation that there was no prosecution witness who proved the guilty mind of the appellant. I hold my reservation on this lamentation for now. However, for argument's sake I agree with Mr. Lyatuu that the guilty mind of the appellant was circumstantially proved. 28 I have read the testimonies of PW1 Shabani Iddy Amri and PW2 A/Insp. Gilbert Gasto Tende, who witnessed the appellant's accident, as well as the evidence of PW3 G2691 D/CPL. Mpanda Robert Ndaki, PW4 PF 146 Inspector Osward Marcus Munthar both of whom investigated the case, and PW 5 Christopher Daimon, a Clinical Officer who examined the appellant and treated him and the statement of the complainant. They pointed

out that there were no lorries or any motor vehicles that passed at the scene of crime immediately before the accident, the appellant was completely unhurt as a result of the said accident, he was found lying behind the motorcycle which is uncharacteristically the case in such accidents, the appellant had not been seen carrying a bag, he was found with his belonging save for the bag while no one had approached the scene of the accident prior to PW1. The total effect of these testimonies is that the appellant faked the accident for the purpose of converting his employer's money. Much as there were rebuttals from the appellant's evidence, it remains that the guilty mind was circumstantially proved as above. This lamentation is, again, without merit. Based on the above reasons, I dismiss the first ground of appeal for lacking in merit. 29 Turning to the second ground of appeal, the appellant laments that the trial court erred in law in admitting and taking into account the victim's statement without adhering to the procedure set down by law, particularly section 34B (2) (a) to (f) of the Evidence Act, reproduced herein above. I have carefully perused the trail proceedings to re-examine whether the law was contravened. It is true that the complainant did not heed to two summons which were served upon her before travelling to Nairobi for treatment. Despite her failure to appear in

court or to cause a notice to be delivered to the trial court on her inability to appear, I think, for argument's sake, that one could reasonably understand, if it were to be said that she started feeling unwell before she took the decision to travel abroad. Then came the objection against admission of the said statement. At the hearing on 19th August, 2024, the appellant's advocates raised one general ground that the statement did not meet the criteria stipulated under the cited section of the law. They argued that in the affidavit of G 2690 D/CPL Waziri, he did not state efforts and measures taken by prosecution to procure the complainant to court. They argued that there was no medical report to substantiate the complainant's sickness. They cited the case of 30 Elias Melan Kivuyo vs. Republic (supra) for a contention that the conditions under section 34B (2) of the Evidence Act are cumulative. Basically, those were the arguments, to which the prosecution responded by pointing out the generality of the appellant's objection, that there was no specific sub-section of section 34B (2) that was mentioned to have been contravened. The State Attorneys further told the trial court the efforts of serving her summons to the complainant on 2/5/2024 and 9/7/2024 prior to the scheduled hearing sessions, both in vain. Under the circumstances, and with information in hand that the

complainant had travelled to Nairobi, the trial court reasonably believed and ruled in favour of admission of the statement. I cannot fault the trial court ruling because even the provision of the law under contention envisages the use of reasonable efforts to procure the maker of the statement to the court. None would have expected, for example, that the trial court would issue an arrest warrant to procure the complainant to court. Since her attendance was deemed necessary by the appellant's counsel, they could have prayed for an adjournment of the hearing pending the availability of the complainant giving convincing reasons therefor. 31 That said, I find no merit in this ground of second appeal too. If there was any reason for the appellant's counsel to believe that the complainant had planned to escape appearance in court, that is speculative and unfounded. The third and the fourth grounds of appeal are somehow related and propose to determine the same jointly, for convenience. Starting with the lamentation in the third ground that the trial magistrate convicted the appellant without plausibly taking into account his defence, I partially agree. Having read the trial proceedings and its resultant Judgment, I have noticed that the testimony of the appellant (DW1) was well-considered and analyzed. However, the trial Magistrate having done a good recording and analysis of the

evidence on trial skipped to take into consideration the evidence of DW2 Abel Osward Katiti, completely. DW2 is a former Principal Manager of the Peris General supplies Ltd. He testified for the defence that on 6th July, 2023 he was in Dodoma where he received a phone call informing him that the appellant was involved in an accident. He went to report the incident to Police and notified Ms. Maririta Gido about it. In his testimony, among other things, he corroborated the appellant's testimony that it was a practice in their office to go home with 32 money as the appellant did, as there was no safe to keep the money in office. It was also his testimony that the appellant was a man of good character who had never been involved in acts of dishonesty against his employer before. This was also stated in Exhb. 2 by the complainant. On the other hand, he confirmed that the amount of money lost was TZS 30,309,700/=. Despite the above evidence being on record, nowhere in the judgment the learned trial Magistrate considered either positively or negatively any of the averments made by DW2. The position of the law is clear that non­ consideration of defence evidence vitiates the proceedings. see: Ally Juma vs. Republic, (Criminal Appeal No. 219 of 2014 (unreported); Jeremiah John & Others vs Republic (Criminal Appeal No. 416 of 2013 (unreported), and Abel Masikiti vs Republic (Criminal

Appeal No. 24 of 2015 (unreported). In the case of Leonard Mwanashoka vs Republic, Criminal Appeal No. 226 of 2014 cited in Abel Masikiti (supra) the Court of Appeal had this to say: "It is one thing to summarize the evidence for both sides separately and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff from the 33 grain. It is one thing to consider evidence and then disregard it after a proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation or analysis." If the defence evidence was considered, questions would probably be asked as to whether there was a likelihood, however small, that PW1 could have taken the money at the scene of the accident before calling other people to render assistance to the appellant, given that the appellant is said to be a man of impeccable character. If the testimony of DW2 was given a slight consideration, a question would have been asked about why the appellant was unconscious. It will be recalled that PW5 the Clinical Officer testified that he received the appellant while he was unconscious, and he didn't state that he was pretending to be so. Having stepped into the shoes of the trial Magistrate, I think the defence evidence managed to raise reasonable doubt on the prosecution evidence. That said, I find that the case was proved, but not

beyond reasonable doubt. Before winding up, I have observed some anomaly in the charge sheet which I would like to discuss, albeit in passing. The appellant was charged 34 for stealing by servant under section 265 and 271 of the Penal Code. It is common knowledge that the elements of the offence of theft are provided for under section 258(1) of the Penal Code, which was not cited in the charge sheet. In the case of Deogratius Kiria vs. Republic, Criminal Appeal No. 99 of 2017, High Court at DSM, my sister Banzi, J was faced with a very similar situation whereby the appellant was charged with the offence of stealing by servant under section 271 and 265 of the Penal Code. In allowing the appeal, she had this to say: "Starting with the charge sheet, it is evident from the record that there was non-citation o fsection258(1) o f the Penal Code [Cap 16 R.E2002] which creates the offence o f theft. Section 271 o f the Penal Code [Cap 16 R.E2002] provides for punishment for a person who steals the property o f his employer. Hence for the offence o f stealing by servant to be complete, the prosecution ought to have cited section 258(1) which creates the offence o f stealing together section 271 which provides for punishment when a person steals from his employer" [Emphasis added] 35 Having stated the above reason and referring to the provision of the section 135(a)(ii) of the Criminal

Procedure Act [Cap 20 RE 2002] (Now R.E 2022), which mandatorily requires that a statement of offence shall contain a reference to the section of enactment creating the offence, and for some other grounds stated in her Judgement, Her Ladyship held that failure to make reference to section 258(1) of the Penal Code, rendered the charge defective and allowed the appeal in the end. I agree with her reasoning and the decision she made. The same is supported by the decision of the Court of Appeal in Abdallah Ally vs. Republic, Criminal Appeal No. 253 of 2013 (unreported) and Marekano Ramadhani vs Republic, Criminal Appeal No. 202 of 2013 (unreported). In Abdallah Ally vs. Republic, (supra) the appellant was convicted of statutory rape contrary to Sections 130(1)(a) and 131(1) of the Penal Code [Cap16 RE 2002], while that offence is not established under the cited provision of the law but under section 130(1) (e) of the Penal Code. The charge was held to be defective and prejudiced the appellant from preparing an appropriate defence. While the appellant in the instant matter may not be so prejudiced, the fact remains that non- citation of section 258(1) of the Penal Code rendered the charge defective. 36 In Marekano Ramadhani Vs Republic (Supra), the Court of Appeal had this to say regarding the farming of charges: - "Framing o f charges should not be taken lightly. We think it is

imperative for the prosecution to carefully fame up a charge in accordance with the law". In the instant matter, apart from the omission in the charge sheet of reference to section 258(1) which establishes the offence of theft, the provision of the Penal Code in the charge which was drawn in year 2023 still made reference to "Cap 16 Vol. 1 of the Revised Edition of 2002", while the Penal Code was revised in 2019 and lastly in 2022. In the end, since the defence evidence was not considered in full, and the evidence in general was not fully analyzed, and having found defect in the charge sheet as stated above, I find merits in the third and fourth grounds of appeal. It is, therefore, my finding that the prosecution did not prove the case against the appellant beyond reasonable doubt. Accordingly, the appeal is allowed, conviction is quashed and the sentence as well as the order imposed on the appellant are set aside. The appellant shall be released from custody forthwith unless otherwise lawfully held. 37 It is so ordered. Dated at Dodoma this 13th day of December, 2024. ABDI S. KAGOMBA

JUDGE 38