MADUHU MASUNGA

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY

AT DODOMA DC CRIMINAL APPEAL NO 39859 OF 2023 (Originating from the Judgment of the District Court of Iramba at Kiomboi in Criminai Case No. 97 of2023) MADUHU MASUNGA.................................................................Ist APPELLANT SIFAEL HERMAN @ J2............................................................. 2nd APPELLANT

VERSUS

THE REPUBLIC RESPONDENT

JUDGMENT Date of/ast order. 14/03/2024 Date ofJudgment. 04/04/2024 LONGOPA, J.:- The appellants, Maduhu Masunga and Sifael Herman stood charged, convicted, and sentenced to serve 30 years imprisonment each for the offence of armed robbery contrary to section 287A of the Penal Code, Cap 16 R.E.

2022. It is alleged that on 17th June 2023, jointly the appellant during night hours at Sawasawa Area in Shelui village within Iramba District in Singida Region did unlawfully and willfully steal one motorcycle make Haojue Chassis NO.LC6PCJK24L0A24033 with registration number MC 1 | Page 612 CBV, the property of one Japhet Edward Omary, before and after the said act, did use a knife to obtain and retain the said property. The appellant denied the charge against them that warranted the prosecution to call a total of eight witnesses to adduce evidence and tendering five exhibits while the defence called three witnesses in total who were the accused in that case. At the conclusion of the case, the appellants were convicted and sentenced to serve the 30 years imprisonment thus this appeal challenging the conviction and sentence. The appellants have preferred six grounds of appeal traversing various issues as follows: 7. That, the /earned trial court magistrate erred in law and in fact in convicting the appellants based on the prosecution evidence that was not credible enough to warrant conviction.

2. That, it was unsafe in eyes of the law for the trial court to ho/d that the appellants were properly identified at the scene ofcrime.

3. That, the trial court erred in re/ying on the prosecution story that the appellants were identified at the police station in absence of the identification parade. 2 | Page 4. That, the trial Court erred in law and in fact as it failed to discharge its duty of properly evaluating the evidence adduced hy both sides, hence mistaken convicted the appellants.

5. That, the trial court erred in law by relying on cautioned statements of the appellants (Exhibit PE 4 and PE5) which were not read over to the appellant after admission contrary to the decision of this Court in the case of Adam S/O Bakari Jomo versus Republic, Criminal Appeal No. 86 of2022(Unreported) (copy supplied).

6. That the trial Court erred in law and in fact as the decision made was basically based on the weaknesses of the appellants' defence and not on the weight of the prosecution evidence. The appellants prayed that on strengths of all these grounds of appeal this honourable Court be pleased to quash the decision of the trial court and set aside the sentence as the appellant did not commit the offence. On 14/03/2024, the parties appeared before me for oral submissions on the grounds of appeal. The appellants appeared in person fending for 3 | Page themselves while the respondent was led by Mr. Francis Mwakifuna, learned State Attorney. The appellants adopted all the grounds of appeal as set forth in the petition of appeal to form part of their submission. Further, it was submitted that both appellants were not properly identified as required by the law. Thus, there was no proper identification of the appellants to this case to warrant arraigning them before the trial court. Also, it was submitted that the police upon arrest of both appellants took them to an area called Kizonzo where the police showed to the appellant the allegedly stolen motorcycle. It is my further submission that during recording of respective cautioned statements, the appellants were not afforded their basic rights they deserved. The appellants allege that appellants were beaten thus argued that cautioned

statements tendered do not contain their own words/statements they have recorded. They challenge that statements were not read to them before appending their signatures at the police station. They deny having signed the statements. It was further submitted that the victim failed to identify the second appellant in court during the hearing of the case. Thus, it was not possible to say that second appellant participated in the commission of the offence. That concluded the submission by the appellants. 4 | Page On the other hand, the respondent did not support the appeal but reiterates that the conviction and sentence of the trial court were appropriate thus the judgment of the trial court should be upheld. The reasons for not supporting the appeal are demonstrated hereunder. For the first ground, it was submitted that evidence of the prosecution was sufficient to warrant conviction. The evidence in form of oral testimonies and exhibits proved the case beyond reasonable doubt. It was argued that PW 1 at page 6 of the proceedings, narrated the ordeal in which robbery was committed by the appellants. There was use of dangerous or offensive weapons to ensure that retention of the stolen motorcycle. The appellants had a knife, and they tighten the victim with rope. According to the respondent, Exhibit PE 1 that was a motorcycle registration card was tendered to establish ingredients

of the offence and supported by evidence of PW 5 that the same motorcycle was retrieved/found on the lead of the appellants to the police. Both the motorcycle registration card and the motorcycle were tendered as Exhibits PE. 1 and PE 2 respectively. It was reiterated that there were other exhibits to include the Seizure Certificate which was admitted as Exhibit PE 3. This was at the scene of crime where the appellants have hidden the motorcycle. Such seizure was witnessed by an independent witness who testified as PW 5. Also, Exhibits PE 4 and PE 5 which were the cautioned statements of the first and second appellants respectively established that the offence was committed. It was 5 | Pag e 4 the submission by the respondent that the first ground of appeal lacks merits. On the second and third grounds of appeal, it is submitted that these grounds are not merited. The identification was clear at PW 1 at page 6 of the proceedings stated to have identified the appellants at the scene of crime, the appellants were known to the victim prior to the incident day and that the place had sufficient lights as it was at the petrol station where there were sufficient lightings. This is supported by the case of Joseph Mkumbwa and Another versus Republic, Criminal Appeal No. 94 of 2007; and Hamis Alli and Others versus Republic, Criminal Appeal No. 596 of 2015 at page 6 where it was stated

that identification parade is only appropriate when the victim had not known the assailant/accused persons before the incident date. Also, it was argued that these cases have covered at lengthy the aspects of presence of sufficient light to facilitate identification of the accused persons. On the fourth ground relating to analysis of the evidence, it is submitted that evidence of both sides was evaluated and analysed in pages 10-12 of the judgment. It is not true that there was failure of analysis of evidence. Thus, according to the respondent, conviction and sentence was based on analysis of evidence of both sides and trial court found that evidence of the prosecution was watertight to warrant conviction. 6 | Page On the fifth ground of appeal on failure to read Exhibits PE 4 and PE 5 out on admission, it is submitted that the ground has no merits. It is true that the Cautioned Statement in the case cited by the appellants was not read out in court and that the court expunged it from record. It was reiterated that the instant case is different as pages 18 and 20 of the proceedings reveal that Exhibits PE. 4 and PE 5 respectively were read out in court. Also, the appellants were afforded right to cross examine on the contents of the cautioned statements and evidence of the witnesses. On the last ground of appeal that the decision was based on the weaknesses of the defence and

not on the strengths of the prosecution case, it was refuted vehemently. The respondent argued that evidence of the prosecution and its exhibits are the ones that lead the trial court to find out that prosecution managed to prove its case thus basis of the decision in this matter. PW 1, the victim narrated fully about the armed robbery incident, identified the appellants as the assailants well as there was sufficient light at the scene of crime. It is the appellants who lead the police to the scene of crime where the motorcycle that was stolen have been hidden and the same was retrieved thus Exhibit PE 3. They did not object tendering of the motorcycle and the motorcycle registration card as Exhibits PE 1 and PE 2 respectively. The evidence of PW 5, Village Chairman, that he was present at the scene when the appellants lead the police to the hiding place of the stolen motorcycle and that it was PW 5 who signed the seizure certificate as an 7 | Page independent witness. Also, the evidence of PW 6 and PW 7 who are police officers recorded the cautioned statements of the 1st appellant and 2nd appellant respectively. The tendering of the exhibits was not objected for Exhibit PE 4 while Exhibit PE 5 was admitted after the court had ruled out the objection from the 2nd appellant as it found that the said objection had no merits. It was submitted that the appellants were afforded

opportunity to defend themselves upon the Court's findings of the prima facie case. The prosecution evidence was strong and sufficient to warrant conviction. As such, the prosecution proved the case beyond reasonable doubt. It was argued that the appeal should be dismissed for lack of merits thus conviction and sentence should be upheld. That was all on the respondent's side. In brief rejoinder, it was submitted that the victim did not identify the appellants and that it is not true that the victim knew the appellants before as neither of them know even the place /scene of crime. Having heard the submissions by both sides on the grounds, it is the pertinent duty of this Court to determine whether the grounds of appeal have merits. I shall analyse the grounds as follows: - The first set of grounds covers the identification of the appellants. The appellants contend that they were not properly identified. First, both 8 | Page appellants are of the view that they were not properly identified at the scene of crime. Second, there was no identification parade after the arrest. I am aware that there are directives by the Court of Appeal that identification of the accused person is vital to ensure that it is the wrongdoer who is arraigned in court to face charges. In the case of Joseph Mkumbwa & Another vs Republic (Criminal Appeal 94 of 2007) [2011] TZCA 118 (23 June 2011) (TANZLII),

at p. 15, the Court of Appeal noted that: It has been he/d that dock identification or identification in police custody without a previous identification parade is of little or no value (see MUSSA ELIASAND 2 OTHERS V R, Criminal Appeal No. 172 of 1993 and OMARY ISSA V R, Criminal Appeal No. 11 of1989 (both unreported). With due respect to the first appellate court, we think, in the circumstances, an identification parade was necessary, even where the witnesses a/ieged that there was enough light to enable the appellants to be identified, because after the /apse of three months between the commission of the offence and the next time they saw them in the police custody, their memories could not have remained the same. 9 | Page The available evidence on record reveal otherwise. PW 1 testified to have been robbed by the first appellant in company of another person. It was PW l's evidence that he knew the first appellant prior to the incident day. PW 1 stated that there were sufficient electricity lights at the scene of the crime. This is also corroborated evidence of PW 8. PW 8 stated to have seen the 1st appellant and another person around 1800 hours who stopped him to take them to Shelui, but he told them he was not going far. PW 8 stated that he knew the 1st appellant before as he worked with Indians at water project. There are two witnesses, PW 1 and PW 8 evidence that reflect

that the appellants were recognised to be at Matandani area on the date of incident. The victim is the one who was hired to transport them from Mitandani to Shelui. PW 1 and PW 8 had even described the clothing that 1st appellant was wearing. That evidence is in line with the decision in Jumapili Msyete vs Republic (Criminal Appeal 110 of 2014) [2015] TZCA 515 (14 August 2015) (TANZLII), at page 16-17, the Court of Appeal observed that: In the present case, the type of identification relied upon is that of recognition. According to PW2 and PW3, the appe/iant was their neighbor in I/embo village. PW2 and PW3 a/so testified that they were assisted by a torch which PW2 was carrying, which he shone on the appellant to 10 | P a g e confirm that it was him. They both described the type of c/othes the appellant wore on the night which, in his defence the appellant did not seriously dispute. Also, in the case of Charles Nanati vs Republic (Criminal Appeal 286 of 2017) [2020] TZCA 45 (6 March 2020) (TANZLII), at pages 14-15, Court observed that: In the current appeal, it is quite dear from the record that the appellant was not a stranger to PW1, PW2 and PW3 as he was known to them prior to the fateful incident. Thus, we subscribe to the above decision that the evidence of those witnesses was more of recognition and thus more reliable. Therefore, without prejudice as correctly said

by Pis. Mcharo, it is our considered opinion that there was no need of conducting the identification parade. In the case of Doriki Kagusa v. Republic, Criminal Appeal No. 174 of2004 (unreported), the Court inter alia stated that: 'The identification parade was abso/ute/y unnecessary where the identifying witnesses or witness knew the suspect before the incident it is superfluous and waste of resources to conduct such a parade. We have asked ourselves this question; the identification parade is he/d to achieve what purpose when the suspect is well known to the identifying witnesses? Our answer has already been indirectly given above. It is unnecessary and a waste of time." 11 | P a g e Indeed, evidence of PW 1 and PW 8 is clear on identification of the appellants. The same is also corroborated by evidence of PW 6 and PW 7 who interrogated the appellants. Oral evidence of PW 6 and PW 7 and Exhibits PE 4 and PE 5 respectively reveals that both appellants confessed to have committed the offence. Furthermore, evidence of PW 4 and PW 5 have reiterated that first appellant is the one who led the police to the scene of crime where stolen motorcycle was hidden. In the case of Mboje Mawe & Others vs Republic (Criminal Appeal 86 of 2010) [2011] TZCA 136 (29 June 2011) (TANZLII), at page 17, the Court of Appeal reiterated the importance of confession leading to discovery. The Court stated

that: It is also important to point out that in giving that confession this appellant was not operating under a state of fear or threat FinaUy, the significance of this confession Ues in the fact that he stated where the body parts were buried and eventually on arrival at his house he dug them out himself In essence therefore, this was "a confession leading to discovery "...PW1 and PW2 Yusufu Ramadhani, who were independent witnesses so to say were positive that it was the first appellant himse/f who showed where the body parts were buried and eventually dug them out 12 | P a g e 1 It is my settled view that the confession of the 1st appellant to the scene of crime where the stolen motorcycle was hidden was important to cement the evidence that the appellants were properly and sufficiently identified. The second and third grounds of appeal on identification of the appellants crumble for lack of merits. The second set of grounds relate to evidence. The appellants complain about two aspects. First, lack of credibility in the prosecution evidence. Second, failure to properly analyse the evidence causing miscarriage of justice. The evidence on record reveals a different story. The allegations are not supported with the available evidence. It is on record that evidence was properly analysed, and the witnesses of the prosecution adduced credible evidence. Totality of evidence of PW

1, PW 4, PW 5, PW 6, PW 7 and PW 8 revealed all the ingredients of the offence and that appellants are the ones who committed the offence. Testimony of PW 1 stated that on 17/06/2023, the appellants stole his motorcycle make Haojue with Registration Number MC 612 CVB black coloured. The appellants had a knife. PW 1 knew the first appellant before, and he managed to identify them well on fateful day due to sufficient electricity lights. In cross examination, PW 1 stated that first appellant and another person attacked him in accompany of the second accused are the one who hired the motorcycle at Matandani to take them to Shelui. 13 | P a g e PW 4 stated that 1st appellant admitted having robbed the motorcycle from Japhet and a company of the second appellant and other two persons. It was 1st appellant who led the police to the hide out of the stolen motorcycle in a forest near Kizonzo Primary School. The retrieved stolen motorcycle was tendered as Exhibit PE 2 and Seizure Certificate filed at the scene of crime was tendered and admitted as Exhibit PE 3. The Exhibit PE 3 provides that the Seizure Certificate was filed after search one Maduhu Masunga Masanja and the Motorcycle MC 612 CVB make Haojue was retrieved witnessed by independent witnesses. Evidence of PW 5 Luhende Mpiga Kabeko narrated that the appellants are the ones who led the police to the scene of crime in

PW4's presence. PW 5 was present when the motorcycle make Haojue was retrieved from the scene of crime and witnessed the signing of Seizure Certificate. In cross examination, PW 5 reiterated that 1st appellant is the one who led the police to the scene of crime. In his testimony, PW 6 stated that after interrogation, the 1st appellant admitted having committed the offence in collaboration with Nkana and Sifael @J2 while Athuman aided them. PW 6 stated to have afforded all the legal rights to the 1st appellant prior to recording the cautioned statement as well before the 1st appellant signed the same. Further, it was evidence of PW 7 to have interrogated Sifael@J2, 2nd appellant who admitted having participated in commission of armed 14 | P a g e robbery by robbing a motorcycle registered MC 612 CVB Haojue type black in colour. The 2nd appellant admitted having committed the offence in collaboration with Maduhu Masunga, the 1st appellant and Athuman. All this evidence together with that of the defence is summarised in pages 2 to 10 of trial court judgment. The analysis is done in pages 11 to 14 of the trial Court judgment. The evidence on record tally towards establishing the guilty of the appellant. The available evidence corroborates each other, and it is not controverted serious by the defence to poke any reasonable doubt on the prosecution evidence. It was after thorough

analysis and evaluation of the evidence of both sides, trial court magistrate rightly entered conviction against the appellants. I have thoroughly re-evaluated the evidence of record to satisfy myself on the credibility of the evidence. I have no flicker of doubt that the evidence indicates credible and reliable witnesses rallied by the prosecution. In the case of Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 (30 May 2008) (TANZLII), at page 11, the Court of Appeal stated that: 15 | P a g e 1 A trial court's finding as to credibility of witnesses is usually binding on an appeal court unless there are circumstances on an appeal court on the record which call for a re-assessment of their credibility (See: Omari Ahmed v The Republic [1983] TLR 52) As I have already pointed out that oral evidence of PW 1, PW 4, PW 5, PW 6, PW 7 and PW 8 indicate consistency, uncontradictory and direct evidence on the participation of the appellant in commission of the crime. I have no doubt at all that all witnesses have exemplified credibility and reliability. This is coupled with all the documentary evidence Exhibit PE 1, Exhibit PE 2, Exhibit PE.3, Exhibit PE 4, and Exhibit PE 5. These cement on the ownership by victim of the stolen property itself and registration documentation, seizure certificate of the stolen property from the 1st appellant,

and cautioned statement confessing having committed the offence for 1st and 2nd appellants respectively. Indeed, I subscribe to the decision in the case of Mohamed Juma @ Mpakama vs Republic (Criminal Appeal 385 of 2017) [2019] TZCA 518 (26 February 2019) (TANZLII), at pages 12-13, where the Court stated that: The two courts below, as already shown, found the three prosecution witnesses to be credible. It is trite law that credibility is an issue of fact, and the trial magistrate or judge is the best judge of this fact. An appellate court, like 16 | P a g e A this one, will only interfere with such concurrent findings of fact only if it is satisfied that "they are on the face of it unreasonable or perverse" leading to a miscarriage of justice, or there had been a misapprehension of the evidence or a violation of some principle of/aw. I have nothing to worry about the finding of the trial court that available evidence was sufficiently analysed and evaluated to reach to a correct and sound conclusion. In Deemay Daati and 2 Others and The Republic (Criminal Appeal 80 of 1994) [2004] TZCA 41 (5 October 2004) (TANZLII), at page 9, the Court reiterated that: It is common knowledge that where there is misdirection and non-direction on the evidence or the lower courts have misapprehended the substance, nature and quality of the evidence, an appellate court is entitled to look at

the evidence and make its own findings of fact. In Peters v. Sunday Post Ltd. (1958) E.A. 424, the Court of Appeal for East Africa set out the principles in which an appellate court can act in appreciating and evaluating the evidence: Among other things, it was he/d: Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusion of the trial judge should stand, this jurisdiction is exercised with caution if there is no evidence to support a particular conclusion, or if it is shown that the 17 | P a g e trialjudge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide. There is nothing left unproved in this case as the prosecution have lucidly adduced evidence sufficient to enter conviction. I therefore dismiss the first and fourth grounds of appeal for being devoid of merits. In respect of the ground challenging the admissibility of Exhibit PE 4 and Exhibit PE 5, I am of the view that it should not detain this Court. The appellants allegations that the two-documentary evidence were not read in court is far from the truth. Pages 18 and 20 of trial court proceedings state it all. At page 18, it is revealed that: Court: the caution statement is admitted and marked PE 4, (then the statement is read over at open court). Similarly, at page

20 record reveals that: Court: The Caution Statement is admitted due to the weightlessness of the points of the 3rd accused, it is marked PE 5 (the content is read over loudly in open court). 18 | P a g e The record is lucid that the two-documentary evidence were read out in the trial court upon admission. I concur with submission made by the learned State Attorney that the case of Adam S/O Bakari Jomo versus Republic, Criminal Appeal No. 86 of 2022(Unreported) is not applicable as in the instant case the exihibits were read out. I am fortified by the decision of the Court of Appeal of Tanzania in the case of Jafari Juma vs Republic (Criminal Appeal 252 of 2019) [2023] TZCA 216 (3 May 2023)(TANZLII), at page 12-13, the Court illustrated the importance of reading out the exhibit in the following words: Cieariy the above excerpt indicates that exhibit Pl upon c/earance or admission and actuai admission was not read out in court. Phis is contrary to the principle of law which we /aid down in the landmark case of Robinson Mwanjisi and Others (supra) in which the cautioned statements of the appe/iants were read out in court before clearance for admission and we emphasized the need for any document which /s introduced for admission in evidence to be first c/eared for admission before it can be read out in court, then be actua/iy admitted in evidence before finally reading out in

court. Reading out documentary exhibits is an assurance that the accused understands the contents of the exhibit. 19 | P a g e Also, in the case of Director of Public Prosecutions vs Juma Chuwa Abdallah & Another (Criminal Appeal No. 85 of 2018) [2023] TZCA 17800 (2 November 2023) (TANZLII), at pages 9-10, the Court lucidly stated that: Nevertheless, it is dear that the two exhibits were wrongly relied upon by the trial court as, after admission, their contents were not read out. Failure to read out the contents of a document after its admission in evidence is an incurable irregularity on the authority of Robinson Mwanjisi and Three Others v. Republic [2003] T.L.R 218, in which the Court underscored the conditions which must be observed during the admission of documentary evidence: 'Whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted before it can be read out otherwise it is difficult for the court to be seen not to have been influenced by the same." The effect of failure to read out a document after its admission in evidence was discussed in Ally Said @ Tox v. Republic, Criminal Appeal No. 308 of 2018 (unreported) as follows: "Mindful of our previous decisions stressing on the duty to read the contents of documentary exhibits after being cleared for admission, we are satisfied that the omission to 20

| P a g e have the contents oh exhibit Pl read out by the witness who tendered after it was cieared for admission was fata/." Having so observed, the Court proceeded to expunge the exhibit from the record. Based on that incurab/e irregularity, Pl and P2 must suffer the same fate and we accordingly expunge them from the record which means that had the first appellate court considered this anomaly he wou/d have come to the same conclusion. Guided by these two authorities and having observed that record indicates that both Exhibit PE 4 and Exhibit PE. 5 were read out in court upon admission, I am of the settled view that the two-documentary evidence were proper evidence to be relied upon as the same was compliant to the legal requirements. The trial court magistrate correctly applied the legal principles to conclude that available both documentary and oral evidence warranted conclusion of conviction of the appellants. In Nyerere Nyague vs Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012) (TANZLII), at page 14 the Court stated that: But, of course, admissibility is one thing. That is the domain of the trial court. The weight to be attached to an admitted exhibit is another. When it comes to evaluating the weight of any evidence properly on record; an 21 | P a g e appellate court Is in just as good a position as the trial court. It was correct and legally

plausible for trial court to accord weight to the evidence of record as the same complied with legal principles governing admissibility. At this point, I have no reason to believe the appellant's ground that the two exhibits were violative of the law. I proceed to dismiss the fifth ground of appeal for being destitute of merits. The last ground of appeal relates to reliance on weaknesses of the defence case to convict instead of the strengths of the prosecution's case. The foregoing analysis of the other grounds reveals a different story not tallying with the lamentation. I have noted that evidence of the prosecution in particular testimonies of PW 1, PW 4, PW 5, PW 6, PW 7, and PW 8 was watertight and the defence evidence did not poke holes to warrant raising reasonable doubt. That oral evidence is cemented by documentary evidence especially Exhibit PE 4 and PE 5. The two documents contain vital confessions. For instance, Exhibit PE 4 partly reads: Tu/ipofika Matandani tum/imkuta boda boda mwenye umbo dogodogo ambaye simfahamu jina na kumweleza kuwa tunataka atupe/eke Shelui kwenye she/i ya Mwarabu tupo wawi/i na tulikubaliana kum/ipa TZS 4,000/= na tukaanza 22 | P a g e safari. Tu/ipofika eneo tu/i/omuacha J2 kwenye barabara ya kwenda Shell ya Mwarabu Nkana a/impiga na kumkaba shingo dereva bodaboda na tukaanguka chini kisha a/itoka 32 akiwa na kisu na kumtishia yu/e dereva

bodaboda kuwa asipige ke/e/e na kumfunga kamba mikono na miguu kisha tukambeba na kumsogeza kichakani na tukawasha pikipiki na kuondoka. At the same time Exhibit PE 5 reveals that: ...wenzangu wawi/i Nkana na Masunga wa/ienda Matandani kutafuta pikipiki na wa/ipopata wa/iniju/isha kwamba wamepata tayari pikipiki wanakuja hivyo niwe tayari na wa/ipokaribia ni/iwafuata na tukamkaba dereva shingoni na baadaye tu/imfunga kamba na muda huo u/ikuwa saa 20:30 hrs tarehe 17/06/2023 na baada ya kufanikiwa kumnyang'anya pikipiki dereva, tu/ichukua pikipiki wote kiva pamoja tukaenda kuipeieka maeneo ya Kizonzo kwa iengo ia kuificha kwenye kichaka. These confessions are lucid on the ingredients of the offence. First, there was stealing of motorcycle belonging to the victim. Second, the appellants used offensive or dangerous weapon to retain the stolen property. Third, the dangerous or offensive weapon was directed to the victim. Fourth, it is none other the appellants who stole the victim's motorcycle. 23 | P a g e In fact, the confessions tally squarely with the evidence of PW 4 and PW 5 who stated categorically that it is the appellants who led the police to the scene of crime where the stolen motorcycle was hidden and retrieved thus Exhibit PE 3. At pages 11-14 of trial court judgment, trial magistrate demonstrated the extent to which prosecution's evidence was strong to warrant

the conviction. This was after analysis and evaluation of evidence of both sides which led trial magistrate to rule that defence evidence did not manage to raise any reasonable doubt on the prosecution evidence to dent the strengths of the prosecution's evidence. Essentially, the prosecution evidence was so strong that it left no possibilities of any reasonable doubt that appellants committed the offence of armed robbery against the victim on the fateful day. In Mathayo Laurance William Mollel vs Republic (Criminal Appeal No. 53 of 2020) [2023] TZCA 52 (20 February 2023) (TANZLII), at pages 24-25, the Court of Appeal noted that: In v/ew of the discussion above, it is our considered opinion that the prosecution proved the case against the appellant beyond reasonable doubt. The convictions were therefore deserving. The sentences were ordered to run concurrently. We endorse the order by the trial court and upheld by the first appe/late court. 24 | P a g e Indeed, the analysis of available evidence on record reveals that the charges against both the first and second appellants were proved to the required standard of proof beyond reasonable doubt. In the case of Tumaini Yared Mtoro vs Republic (Criminal Appeal No. 218 of 2022) [2024] TZCA 23 (9 February 2024) (TANZLII), at pages 19-20, Court of Appeal stated that: As such, we are satisfied that both tower courts adequately evaluated

the evidence on record and arrived at a fair conclusion. It is therefore, our sett/ed view that there are no sufficient reasons for the Court to fau/t the findings of the two courts be/ow on these grounds. For the foregoing reasons, we are satisfied that the evidence, taken as a who/e, establishes that the prosecution's case against the appe/iant was proved beyond reasonab/e doubt. Accordingly, we find the appeal devoid of merit and it is hereby dismissed in its entirety. It is settled that trial court managed to properly analyse the evidence to remove any possibilities of charges being left unproved. The prosecution through oral and documentary evidence has established that there are merits on the appeal. 25 | P a g e In totality of the events, this appeal lacks merits as the prosecution proved the case beyond reasonable doubt. The appeal deserves only one conclusion which is dismissal on its entirety. I uphold both conviction and sentence of the appellant as entered by the District Court of Iramba. The appeal stands dismissed in its entirety for lack of merits. It is so ordered. DATED at DODOMA this 4th day of April 2024. E.E. LONGOPA I: 04/04/2024. 26 | P a g e