CRIMINAL APPEAL MARWA MWITA IKWABE

IN THE HIGH COURT OF TANZANIA

MUSOMA SUB REGISTRY

AT MUSOMA CRIMINAL APPEAL NO. 000030705 OF 2024 CASE REFERENCE NO. 202410282000030705 (Arising from Criminal Case No. 000036937 of2023 of the District Court of Tarime)

BETWEEN MARWA MWITA IKWABE......................................................... 1st APPELLANT RUBEN MGOSI MNANKA.......................................................... 2nd APPELLANT

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

JUDGMENT 0fh & 17h December, 2024 M. L. KOMBA, J.: This appeal originates from the decision of the District Court of Tarime in Criminal Case No 000036937 of 2023 where the above-named appellants were convicted of the offence of armed robbery contrary to section 287A of the Penal Code, [Cap 16 R.E 2022] and sentenced to thirty years imprisonment. The background of the this appeal can be traced from prosecution facts that the above named appellants on 15th day of October 2023 at Mpakani Village within Tarime District in Mara Region, did stole Three Hundred Page 1 of 12 Thousand Tanzanian Shillings (TZS 300,000/=) and a Mobile Phone make Tecno worth Fifty Thousand Tanzanian Shillings (TZS 50,000/=) the properties of YOEL S/O GATI NSIMBE (the victim) and immediately before such stealing used clubs and machete to threaten and assault the victim in order to attain and retain the said properties. As per testimony, bandits had machete and clubs which was used to injure the victim who was then taken to Nyamongo health center. At the health center, victim was treated by PW2 who prepared PF3 which was admitted during trial as Exh. PE 1 showing the victim had wounds in head and left hand. Victim Yoel Nsimbe mentioned names of people who attacked him and two of them were arrested and prosecuted. The trial Magistrate was satisfied the prosecution managed to prove the case beyond

reasonable doubt and convicted both appellants on offence charged. Aggrieved by the verdict and punishment, appellants are here now, searching for justice in way of appeal equipped with seven (7) grounds of appeal which are rephrased as follows; 1. That the essentia! elements of armed robbery were not proved. Page 2 of 12 2. That the trial Magistrate relied on cooked & fabricated evidence of PW3 and the alleged weapon "machete" was not brought before the court.

3. That the trial Magistrate convicted the appellants based on the wrong facts as appellants were not arrested at the scene.

4. That the trial Magistrate relied on oral evidence which could easily be distorted, cooked and fabricated to the detriment of the appellants.

5. That the trial court failed to consider the defence case.

6. That the trial court erred by failure to conduct identification parade.

7. That the trial court retied on cooked and fabricated evidence. When the matter was scheduled for hearing, appellants stood solo without any representation and each one prayed this court to adopt their joint petition of appeal while Republic was represented by Mr. Zarubaberi Ngowi, State Attorney. Mr. Ngowi started with the 1st ground that prosecution managed to prove the offence. Basing on the qualifications set by the court in Amos Sita Ngiri vs Republic, Criminal Appeal No 438 of 2021 that there must be stealing, the said stealing must involve dangerous weapon and finally the attacker uses dangerous weapon to obtain and retain property. He went on submitting that the victim testified that he was from his business and met appellants and other people. He explained he was attacked by club and Page 3 of 12 machete and appellants took TZS 300,000 and one mobile phone worth 50,000/. To him ingredients of the offence were found in the victim testimony. He clarified that attackers attacked victim by weapon in order to take money and mobile phone. He prayed this court to find the first ground has no merit. State Attorney then combine the Second and fourth grounds about failure to tendering some exhibits during trial which is machete and money. He was of the submission that it is not requirement of the law that weapon used must be tendered during trial as was in Alex Mwashilindi

and Another vs Republic, Criminal Appeal No. 626 of 2020 that prosecution is not bound to tender in court the weapon used in committing the offence, he further submitted that prosecution was not bound to tender money which was stolen on the fateful date and get refuge in Alex Mwashilindi and Another vs Republic (supra). On the 3rd ground about arrest, he submitted that appellants hide from the moment they committed the crime and were found evening of the following day and were arrested after investigation. Page 4 of 12 The 5th ground is about defence. The counsel was of the submission that appellants were addressed as per law and they replied they will defend themselves under oath and they testified. Then the trial Magistrate analysed all testimony including the defence as seen at page 4 of the judgment but the defence was weak that's why they were convicted. Submitting on the 6th ground where appellant complained of identification parade, Mr. Ngowi was of the position that the trial court was correct to convict the appellants as parade was not necessary because victim know appellants and other three who robbed him bearing in mind that the area had electricity light which helped the victim to see properly and the light was bright. He insisted that victim know attackers as his customers and he managed to recognize them by their names and therefore there was no need to conduct

identification parade so far as the victim managed to identify attackers at the scene, he supported his submission by Masumbuko Zacharia @ Dogo Aslei and 2 Others vs Republic (Criminal Appeal 610 of 2020) [2022] TZCA 474 where it was decided that if victim identified the attackers there is no need of identification parade. Page 5 of 12 On the 7th ground he said the ground is drafted as a defence and prayed this court not to considered it. He further said the crime was occurred on the night of 15/10/2023 and appellants were arrested on 16/10/2023 while insisting that the case was not staged as they were arrested in the following day in their house while hiding. However, during trial he said, appellants did not give further information on how the case was staged apart from complaints on their arrest. State Attorney closed his submission by praying this court to find the appeal has no merit and uphold conviction and sentence. Appellants had nothing for rejoinder apart from praying to be free. I have considered the rival submission by State Attorney to this appeal in the light of the petition of appeal and substance of the oral submission in the hearing of the appeal. I am now in a position to confront this appeal for determination as appearing in the petition of appeal. I shall start analysis on the combined 2nd and 4th grounds about tendering exhibit which is machete as weapon

used and money which are alleged to be robbed on the fateful day. On these combined grounds I join hands with submission of State Attorney that offence is not proved by tendering weapon used during trial, it is how prosecution witnesses testify on what Page 6 of 12 happened. Further, for it to be considered as meritorious ground of appeal it is supposed to be requirement of the law of which is not position as per current law, the same applies to property claimed to be robbed, it is not mandatory to tender what was stolen. The explanation is available in cited cases of Alex Mwashilindi and Another vs Republic (supra). About the arrest as complained on ground number 3, the offence was committed the night of 15/10/2023 and appellants were arrested on 16/10/2023 it is within 24 hours since the crime occurred. From prosecution testimony it is true that appellants were not arrested at the scene but that alone does not exonerate them from being committing the alleged crime. What was testified by the victim and the investigation resulted from their arrest. Therefore, I find the 3rd ground lacks merit as appellants were arrested within 24 hours. I find no delay. However, it has to be known that conviction is done basing on how prosecution evidence proves the offence vis as vis ingredients of the offence. About the defence as is in the 5th ground, this is the 1st appellate court which is

entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision. See Mukhusin s/o Kombo vs Republic (Criminal Appeal No. 84 of Page 7 of 12 2016) [2017] TZCA 242 and Mwita Cornel Philimon @ Gaucho vs Republic (Criminal Appeal No. 306 of 2020) [2023] TZCA 17822 (10 November 2023). 1st appellant testified that on 16/10/2023 he was in his daily engagement till 17:00 hours when he returns home, He planned to meet with the second appellant and they met at 1st appellant home after he returned from a busy day and they had dinner together before they were arrested. The whole day of 15/10/2023 was at home after attending church engaging in house chaos while denying to know the victim. He started his defence by complaining that the case was staged but in his defence he did not testify how and why the case was staged against him and second appellant. The second appellant testified that on 15/10/2023 after church service he participated in graduation party and return home at 20:00hrs and he slept. The following day he joined 1st appellant to site but there was no activity assigned to them so they left the site and went to 1st appellant house where they were arrested. He clear testified he has no grudges with police but he said the case was staged without explain why they suspect the case to be staged against them

(appellants) as they were arrested together. Page 8 of 12 On the other hand, victim testified that he knows who attacked him at night by names and there was light so he managed to saw five people and two among the attackers are appellants. What was done by the victim was recognition as he knows the attackers before the incident. See Tabu Sita vs Republic (Criminal Appeal 297 of 2019) [2022] TZCA 702. It has to be remembered that the duty of the accused person is not to show his innocence while in court, rather, his evidence has to cast doubts on prosecution. See Lack s/o Kilingani vs Republic (Criminal Appeal No. 402 of 2015) [2016] TZCA 688 . While still at ground 5th I find prudent to analyse the 1st and 7th ground on proving the offence beyond reasonable doubt. Let it be known that in criminal cases, it is upon the prosecution to prove its case against an accused person as provided under section 3(2)(a) of the Evidence Act, CAP 6. This being a criminal case, the standard is beyond reasonable doubts. See Festo Komba vs Republic, Criminal Appeal No. 77 of 2015, Court of Appeal of Tanzania. That means even if it could appear appellants did not give defence still prosecution was supposed to prove the offence as per charge sheet. In case of this nature prosecution need to prove three things as submitted by Mr. Ngowi; there must be stealing, use of weapon and Page 9 of

12 attackers used weapon to obtain property or in other words the weapon was directed to victim. See Amos Sita Ngiri vs Republic (supra) and Shaban Said Ally vs. Republic, Criminal Appeal No. 270/2018. Reading prosecution testimony specifically testimony by the victim, I find he explained what happened as he was attacked on his way home and the street had houses which have electricity, he saw five people who attacked him, he was beaten and cut with machete and they took from him TZS 300,000/ which was the sale from his grocery and a mobile phone. All ingredients of the offence are found in his testimony. How the victim managed to know attacker is analysed as 6th ground. In his testimony victim informed the trial court that he knows the attackers as they used to be his customers at his grocery. So, he knows them by names and PW2 testified that appellants were known to police for criminal record so they were arrested basing on names as mentioned by victim. When met with similar situation, the Court in Siasa Bernard @ Kasenga vs Republic (Criminal Appeal 22 of 2010) [2013] TZCA 431 had this to say; 'This brings us to the identification parade. As stated above, the witnesses and the appellant were familiar to each other. If so, strictly Page 10 of 12 speaking, there was no need for an identification parade. An identification parade is normally held or conducted where the suspect or

person sought to be identified is not known to the witnesses. In this case, since the appellant was known to the witnesses the identification parade was uncalled for, so to speak, because in effect the witnesses would naturally and obviously pick up the appellant in the circumstance' Although in defence both appellants claim victim doesn't know them, I find that was in the capacity of the victim and not otherwise. Victim resides in the same area and as said, he run grocery where he attends many customers. Because what was done by the victim at the scene was recognition as he knew attackers, then there was no need of conducting identification parade. Generally, I find the appeal lacks merit as all grounds were fruitless and therefore the appeal is dismissed. DATED at MUSOMA this 17 day of December, 2024. M. L. KOMBA

JUDGE Page 11 of 12