HILLARY CHARLES DIMOSO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB REGISTRY)

AT ARUSHA CRIMINAL APPEAL NO. 20455 OF 2024 (Originating from the Ostnet Court of Arusha in Criminal Case No 90 of 2022, before Hon. DJ. Msoffe)

BETWEEN HILLARY CHARLES DIMOSO.....................................................................APPELLANT

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

JUDGMENT 28/08/2024 & 31/10/2024 MWENDA, J.: The District Court of Arusha at Arusha ("trial court"), tried and convicted the appellant, Charles Hillary Dimoso for the offence of Armed Robbery Contrary to section 287A of the Penal Code [Cap. 16, Revised Edition, 2019]. Following such conviction, the appellant earned a custodial sentence of thirty (30) years imprisonment. Aggrieved by the trial court's conviction and the sentence thereof, the appellant is now before this court challenging the same. He has thus advanced six grounds of appeal, to wit; 1 I Page 1. That, the case against the appellant was not proved beyond reasonable doubt.

2. That, the trial court erred in law and fact in convicting and sentencing the appellant despite that, he was not well identified at the crime scene.

3. That, the trial court erred in law and fact in not finding that the property alleged to be stolen was admitted without being cleared for admission.

4. That, the trial court erred in law and fact in not finding that, the prosecution side failed to prove the ownership of the alleged stolen property.

5. That, the trial court erred in law and fact in not finding that the chain of custody of the seized property was totally broken.

6. That, the trial court erred in law and fact in not finding that the appellant was delayed to be arraigned before the court contrary to section 32 (1) of the CPA. 7, That, the trial court erred in law and fact in failing to note that the charge sheet is at variance in respect to the number of the accused who was alleged in the said offence. 2 | Page 8. That, the trial court erred in law and fact in convicting and sentencing the appellant who was at the age of 18 years old at the time of committing the alleged offence contrary to section 1608 of the Penal Code. On 28th August 2024 when this appeal was called on for hearing before me, the appellant appeared in person whereas Ms. Eunice Makala, the learned state attorney represented the respondent Republic. Nevertheless, it was consensually agreed that the appeal be disposed by way of written submission after the appellant had stated his inability to orally proceed with the scheduled oral hearing. Submitting in respect of the 1st, 2nd, 3rd, 4th and 5th grounds of appeal, the appellant submitted that the charge against him was not proved beyond reasonable doubt due to the following reasons. Firstly, the appellant complained that the chain of custody of exhibit P2 was irreparably broken, he said the person who tendered it did not state from whom did he receive it, and his name was not in the handing over register book PF16. He

added that in his testimony PW1 said that the alleged mobile phone was handed to ASS SESILIA by Samwel and then from ASS SESILIA to PW1, then to De James Matengo then to PW1 and finally to Nzenga. While insisting that a 3 | Page mobile phone is an exhibit which can easily change hands he referred this court to the case of SAMWEL SLAA @SAREA AND ANOTHER V. REPUBLIC, CRIMINAL APPEAL NO. 153 OF 20221 AND ILUMINATUS MKOKA V. REPUBLIC, [2003] TLR 245. Secondly, the appellant faulted the trial court's failure to read out exhibit P4 EFD receipt of the mobile phone. It was his submission that exhibit P4 was which was to prove the ownership of the mobile phone was not read aloud after admission as exhibit. Based on the principle enunciated in the case of ROBINSON MWANJISI AND THREE OTHERS V. REPUBLIC, T.L.R 218 he prayed exhibit P4 to be expunged from the record. Thirdly, the appellant complained that there was variance between the weapon which was alleged to used in the commission of the offence and that which was tendered by PW1 as exhibit. It was his submission that while the charge sheet said the weapon used in the commission of the offence was a sword, the weapon which was tendered by PW1 was a knife and not a sword. He was of the view that the said variance violated Section 132 of the CPA and according to him, a charge against the appellant was not proved beyond reasonable doubt.

Supporting his argument, he cited the case of FRANCIS FABIAN@EMMANUEL V. REPUBLIC, CRIMINAL APPEAL NO. 261 OF 2021. 4 | Pa ge With such submissions, the appellant prayed the present appeal to be allowed, conviction be quashed and set aside the sentence. While supporting both the conviction and the sentence meted against the appellant, Ms. Eunice responded in that the ingredients of the offence of armed robbery which are stealing, immediate after stealing the assailant to be armed with dangerous or offensive weapon or robbery instrument, to use the said weapon to threaten the victim to obtain or retain the stolen property were met in this case. She submitted further that the said ingredients were proved through the evidence of PW1 who explained how the incident occurred and how the appellant was arrested with a big knife. She said PW.l's evidence was corroborated by PW4 (a militia man) who arrested the appellant and took him to the police station. The case of KISANDU MB0N3E V. REPUBLIC, CRIMINAL APPEAL NO. 353 OF 2018 was then cited to prove her arguments. Regarding the complaint over the chain of custody, the learned state attorney submitted that the same was intact throughout. She said PW1 explained how exhibit P3 moved from one person to another until he tendered it before the court as exhibit. It was her further submission that PW.l explained that he was also a store/exhibit

keeper and exhibit P3 was 5 | Page handed over to him by A/Ins. Cecilia who could not attend before the court as she was sick. To support the point, the learned State Attorney cited the case of PAULO MADUKA AND 3 OTHERS V. REPUBLIC, [2003] TLR 218. Regarding the complain that exhibit P4 was not read aloud after its admission, the learned State Attorney submitted that the said fact as the said exhibit was not read over after its admission. On that note, she prayed the same to be expunged from the records. Despite that suggestion she believed PW.2's oral account could prevail. That being the summary of submission for and against the present appeal, the issue for determination is whether the charge was proved beyond reasonable doubt. At the outset it is important to point out that in armed robbery offenses, the prosecution is enjoined to prove the following. One, that the accused person must have stolen something; two, at or immediately before or after stealing, he must be armed with a dangerous or offensive weapon or instrument; and three, at or immediately before or after stealing, that person must have used or threatened to use violence against the victim. See the case of JUMA CHARLES @ RUBEN AND ANOTHER V. REPUBLIC, CRIMINAL APPEAL NO. 566 OF 2017 (CAT AT ARUSHA, UNREPORTED). 6 | P a ge In the present case, the victim who stood as PW2, one NZENGA EDWIN SIMBAYA, testified

before the trial court that the appellant and other two accused persons who were not apprehended attacked them at 11:30 hrs and asked them to surrender whatever item they had. According to him, the said assailants had a big knife (Sime) which was held by the appellant. The victim testified on how the appellant used the said "big knife" to batter him with before they robbed a mobile phone and TZS 5,000/=.The record is also clear that in attempt to run away, the appellant and his co culprits did not reach far as people managed to apprehend the appellant who was then conveyed by PW4 (a militiaman/Sungusungu) to Arusha central Police Station. According to him the area of incident was illuminated by electricity light which enabled him to easily identify the appellant. At the police station PW3 who received the appellant together with a big knife, searched the appellant and found a stolen mobile phone in his underwear (boxer), PW2 was able to identify the said mobile to be his property. I have keenly considered the evidence collected and there is no doubt that the appellant committed the offence he was charged with. This is because the appellant and his company attacked the victim and friends while armed 7 | P age with a matchet and in the cause, they managed to rob cash money and the mobile phone. The evidence shows the appellant used the said knife to batter । the victim to make

him surrender the item. I am mindful that the incident occurred at night but according to the victim, the appellant was arrested immediately after robbery by good Samaritans who went at the scene of crime. Since the chain of events from the commission of crime to the time appellant was arrested is interwoven, I thus find identification of the appellant free from any mistakes. As long the matchet was used while robbing money and mobile phone, this court is of the view that the ingredients of the offence under section 287 A of the Penal Code, CAP 16 RE 2019 were met. Regarding the chain of custody of exhibit P2, the appellant complained that the same was broken as PW1 did not explain from whom he received the said exhibit from. He also complained that exhibit P4 (the mobile phone receipt) was admitted without being real aloud before the court. I have gone through the trial court's record and noted that when exhibit P4 was received at the police station by the exhibit keeper A/Inspector Cecilia, it was later returned to PW2(the victim) for safe keeping. However, the record is silent as to when the same was returned to PW1 as exhibit keeper. That trend clearly shows that the chain of custody was broken and as such, exhibit P4 81 P a g e is hereby expunged from the remrH tr record. That notwithstanding, since in this matter, the appellant was arrpQfpH ted immediately after

committing the offence, of the view that the oral account from the victim PW2 and PW.3 on how the appellant was searched and found with the mobile phone belonging to the victim which was tendered without any objection by the appellant carries weight in support of the prosecution's case. The appellant also claimed that there was a variance between the weapon in the charge sheet and the evidence. He alleged that the charge sheet stated that the weapon used was a sword while the evidence said it is a big knife. This court have considered this ground only to find the same unmerited. This is because by a simple definition, a machete is big/heavy knife used as implement or weapon. On that note this court is of view that a bid knife is the same as a sword or machete, thus there is no such variance as alleged. On the above reasons, the 1st, 2«, 3'd, 4»- and 5>" grounds of appeal are found with no merit and are hereby dismissed. Regarding the 6th ground of appeal, the appellant complained that his arraignment before the court was delayed contrary to section 32 (1) of the CPA. He lamented that the offence was committed on 29/04/2022 and the evidence revealed that he was arrested on the same day but surprisingly he 91 ' .as taken before the court on X5/06/2022 after the .apse of 57 days. He was o the view that this case might be concocted against him and his right as per Article 15 (2)

(a) of the Constitution of the United Republic of Tanzania was violated. Thus, he prays for the proceedings and judgment of trial court quashed and his conviction and sentence be set aside for violating his right to be heard. In response to this ground, the learned state Attorney, submitted that it is true that there was delay in arraigning the appellant before the trial court for more than on month and fifteen days. However, she opined that such delay was due to the seriousness of the offence he was charged with. To support her argument, she cited the case of SHABAN ALLY ATHUMAN V. REPUBLIC, CRIMINAL APPEAL NO. 151 OF 2021. I have revisited the records of the trial court and noted that the appellant was arrested on 29/4/2022 and the charge sheet was prepared and signed on 7 /06/2022 and later it was filed on 15/06/2022. This was far beyond the time prescribed by the law. However, as it was submitted by the learned state attorney, this court is of the view that the delay was due to the seriousness of the offence. Further to that the appellant did not explain as to whether he was prejudiced, or anything was done to him on those days io | I^ore he was arraigned before the Muit Even in fendlng hfe he M nOt say anything in that regard thus his argument that the delay implies the case aga’ st him is fabricated is unfounded and a mere afterthought. For that reason, this ground is

found with no merit and is hereby dismissed. Lastly, on the 8 ground of appeal, the appellant complained that at the time of the incident he was 18 years old, and it is his belief that he was supposed to be sentenced to corporal punishment and not to thirty (30) years jail imprisonment. To support his argument, he cited the case of EMMANUEL SAMWEL @ NOEL V. REPUBLIC, CRIMINAL APPEAL NO. 304 OF 2021. Responding to this ground, Ms. Makala stated that Section 160B apply to offences against morality which is under Chapter XV only and no other chapters. She stressed that even if the appellant was 18 years old when he was committing the offence, section 160B does not apply to him. That being the submissions for and against the 8th ground of appeal, it is apposite to note that Section 160B is under Chapter XV which is all about offences against molarity. For clarity, although Section 160B of the Penal Code, Cap 16 R.E 2012 provides reversionary powers to the court to satisfy that cruel sentences are not imposed to persons of or below the age of eighteen years, that section is only applicable to offences under part XV. 11 I P a g e In the present matter, since the appellant herein was charged with Armed robbery, an offence which does not fall under Chapter XV of the Penal Code, Cap 16 RE 2012, then despite being 18 years old at the time of the commission of the offence, Section 160B does not cover him. Thus, this ground too has no merit. From the foregoing reason, this appeal is hereby dismissed for want of merits. Thus, the conviction and sentence passed by the trial court are hereby upheld. Ordered accordingly. DATED at ARUSHA this 31st day of October, 2024.

JUDGE