CRIMINAL APPEAL NO 578 OF 2022 MOHAMED MZEE KAWINGWA ANOTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWARIJA. 3.A.. FIKIRINL J.A. And RUMANYIKA, 3.A.} CRIMINAL APPEAL NO. 578 OF 2022 MOHAMED MZEE KAWINGWA................. ........ ..................1st APPELLANT MOHAMED HASSAN KALABATILE............................ ...........2NDAPPELLANT VERSUS THE REPUBLIC..................................................... .............. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) ( Mqonva, J.) dated the 30th day of November, 2021 in Criminal Appeal No. 95 of 2021 JUDGMENT OF THE COURT 1st & 31st July, 2024 MWARIJA. J.A.: In the District Court of Kinondoni at Kinondoni, the appellants, Mohamed Mzee Kawingwa and Mohamed Hassan Kalabatile @ Babu @ Kimkono (the 1st and 2nd appellants respectively) were jointly charged with another person who is not a party to this appeal, Said Hassan Mdoe (hereinafter to be referred to as Saidi). They were charged with the offence of armed robbery contrary to section 287A of the Penal Code, Chapter 16 of the Revised Laws. It was alleged that, on 13/2/2019 at Kigogo Kisiwani area within Kinondoni District in Dar es Sataam Region, they stole cash, TZS 5,000,000.00, the property of Alphan Nassoro and immediately before and after such stealing, threatened the said Alphan Nassoro and Rajab Mgumba with a pistol in order to obtain and retain the said property. When the charge was read over to the trio, they pleaded not guilty and as a result, the case proceeded to a full trial. At the trial, the prosecution called a total of eight witnesses to testify and relied on four documentary and three real exhibits. On their part, the appellants and Saidi testified each on his own behalf without calling witnesses. At the conclusion of the trial, the learned trial Principal Resident Magistrate was satisfied that, the prosecution had proved the case against the appellants beyond reasonable doubt and thus convicted and sentenced each of them to thirty (30) years imprisonment. As for Saidi, he was found not guilty and was consequently acquitted. Aggrieved by the decision of the trial court, the appellants appealed to the High Court. Their appeal was unsuccessful hence this second appeal. The background facts giving rise to this appeal may ne briefly stated as follows: on 13/2/2019 at about 21:00 hrs, Alphan Nassoro (PW1) got out of his house and went to a nearby kiosk to buy fish. He 2 left his cousin, Rajab Athuman (PW2) at home. When PW1 returned home, he found a person standing on the verandah of the house. PW1 passed and went inside where he found two other strangers. Those strangers turned out to be bandits. He also realized that he had been followed by the person who was standing on the verandah. That person, who also turned out to be a bandit (the armed bandit) wielded a pistol and ordered him to remain silent. The armed bandit demanded to be given money and upon a reply by PW1 that he did not have it, the said bandit searched the wardrobe and took TZS 5,000,000.00. He demanded more money without success and thus decided to leave together with the other bandits. Before they left however, they tied PWl's face with a towel. PW1 shouted for help and the bandit responded by firing a bullet which destroyed the Luku box in the house. PW1 continued to raise alarm and a number of people responded and pursued the bandits. Some police officers also arrived at the scene. In the course of pursuing the robbers, the 1st appellant was arrested and taken to Magomeni Police Station where, according to Insp. Bruno Selestine (PW4), who received him, was found to have burn wounds. Because he was in a serious condition, he was issued with a PF3 and 3 taken to hospital for treatment. The arrest of the 1st appellant and his subsequent interrogation by the police led to the arrest of the 2nd appellant and Saidi. In his evidence, PW1 stated that, at the verandah and in the house, there was sufficient electricity light from 60 watts' bulbs which enabled him to identify the bandits. For that reason, on 26/2/2019 when the police conducted an identification parade, he managed to identify the 2nd appellant as the person who committed the offence and the one who had a pistol. He also identified the 1st appellant as one of the two bandits he found in the house. Another eye witness, PW2, supported the evidence of PW1 on how the robbery took place at the scene, pointing out that, the 2nd appellant was the one who used the pistol. It was also his evidence that, he identified the 2nd appellant in the identification parade which was supervised by A/Insp. Yoet (PW3). Testifying in court, PW3 stated that, in the parade, PW1 and PW2 identified the appellants in two separate groups of people lined up for that purpose. He tendered the identification register and the same was admitted in evidence as exhibit PI. At the police station, the 1st appellant was interrogated by E.7932 D/Cpl Shabani (PW5) who testified that, the said appellant confessed to have committed the offence. The witness tendered the 1st appellant's cautioned statement and the same was admitted in evidence as exhibit P2. Evidence in support of the prosecution case was also given by F. 8798 D/C Daud (PW8), A/Insp. Salum Makiya (PW7) and D/C Elisha Timoth (PW6). As stated above, at the police station, the 1st appellant was received by PW4. He stated in his evidence that, he later on visited the scene of crime where he collected one spent cartridge. He later took it to the Police Forensic Department for expert analysis to determine whether the same was fired from the pistol which, according to the evidence of PW7, was recovered from the 2nd appellant. It was also the prosecution's evidence as adduced by PW8 that upon his interrogation of the 2nd appellant, the said appellant confessed to have been involved in the commission of the offence. The witness tendered the 2nd appellant's cautioned statement which was admitted in evidence as exhibit P7. The pistol, make Bereta serial No. PX 196113 with registration No. 109166, was tendered in evidence by PW6 as exhibit P6. It had a magazine containing 12 rounds of ammunition. PW6 also tendered the spent cartridge and ten rounds of ammunition as exhibits P4 and P5 respectively. According to his evidence, after having analysed the spent cartridge by firing 2 rounds of ammunition among the 12 taken to him together with the pistol (exhibit P6), he found out that, the spent cartridge was fired from exhibit P6. In his defence, the 1st appellant (DW1) gave a brief testimony. He testified that, on 13/2/2019 he had a fight with his friend at a certain bar in Kigogo Darajani. He told the trial court that, it was out of that incident that he found himself arrested. When he was cross examined, he admitted to have had his cautioned statement recorded and did actually, sign it. On his part, the 2nd appellant (DW2), gave the following evidence: On 19/2/2019, he was arrested at his home by eight policemen following some misunderstandings between him and his tenants known as Issack or Baba Richard, a retired police officer (hereinafter the tenant). The cause of misunderstandings, which led to physical confrontation between him and the tenant, was the default by the latter to pay the outstanding rent, the result of which DW2 broke the door of the tenant's room and 6 took out his belongings. As a result of the fight, the tenant suffered serious injuries causing him to seek medical treatment at a hospital. DW2 went on to state that, following the complaint by the tenant, he was arrested and taken to Stakishari Police Station where he was locked up until on 22/2/2019 when he was informed that he was a dangerous criminal. He was handcuffed and required to show where he had hidden the firearm used in the commission of the robbery. That was followed by his interrogation in the presence of 10 policemen while at the same time being subjected to beatings, which, at the end, caused him to faint. He was later transferred to Mburahati Police Station where, on 26/2/2019, an identification parade was conducted. On 21/3/2019, he was taken to court and upon being arraigned, he denied to have committed the offence charged. In its judgment, the trial court found that, the evidence of PW1, PW2, PW4 and other prosecution witnesses as well as the tendered exhibits including the appellants' cautioned statements, had proved the case against the appellants beyond reasonable doubt. The learned trial Principal Resident Magistrate was satisfied that, apart from being 7 implicated by his cautioned statement, the 2nd appellant was properly identified by PW1 and PW2 at the identification parade as per exhibit PI. As pointed out above, the decision of the trial court was upheld by the High Court (Mgonya, J. as she then was). The learned first appellate Judge dismissed all the four grounds of appeal which were jointly argued by the appellants; first, that, the prosecution had failed to prove its case beyond reason doubt; secondly, that they were not properly identified at the scene of crime; thirdly, that their cautioned statements were improperly acted upon because the same were not recorded in accordance to the law and fourthly, that the chain of custody of exhibits P4, P5 and P6 was not established and thus the trial court wrongly acted on them to found the appellants' conviction. In this appeal, the appellants have filed a joint memorandum of appeal consisting of the following 10 grounds: " 1. That, both lower courts erred in law and fact in upholding the appellants' conviction based on fatally defective charge as the prosecution evidence adduced in court was in variance with the particulars o f the offence in respect to the stolen properties and owner o f the stolen properties. 8 2. That, both lower courts erred in law and fact In upholding the appellants' conviction based on unprocedurally, insufficient and unreliable visual identification evidence adduced by PW1 and PW2 which lack probative value to ground the appellants' conviction beyond reasonable doubt as required by law. 3. That, both lower courts erred in law and fact in upholding the appellants' conviction when search and seizure o f the exhibit P4, P5 and P6 was unprocedurally (sic) and contravened the provisions o f sections 38 (1) (2) and (3) o f the Criminal Procedure Act, Cap. 20 R.E 2019 and section 35 (3) o f the Police Force Act, (Cap. 322 R.E 2002). 4. That, both lower courts erred in law and fact in upholding the appellants'conviction based on the retracted and/or repudiated caution statements exhibit P2 and P7 when the same were unprocedurally and/or illegally tendered and admitted in court during the ruling o f an inquiry without sufficient [consideration] o f the requirements o f section 27 (2) o f the Evidence Act, (Cap. 6 R.E 2019) and sections 50 51, 53, 57 and 58 o f the Criminal Procedure Act, (Cap. 20 R.E 2019). 5. That, [the first appellate] court erred in law and fact in upholding the appellants' conviction based on exhibit PI (identification parade register) while the parade was unprocedurally conducted as PGO 232 was not sufficiently adhered to. 6. That, [the first appellate] court erred in law and fact in upholding the appellants' conviction while the prosecution had failed to establish the appellants' apprehension as there was no either independent witness to prove that the 1st appellant was arrested in connection to the case at hand. 7. That, [the first appellate] court erred in law and fact in upholding the appellants' conviction while the defence evidence o f the 1st and 2nd appellants was wrongly and/or unprocedurally rejected and/or disregarded without considering the doubt raised by the appellants on the prosecution case. 8. That, [the first appellate] court erred in law and fact in upholding the appellants' conviction [while it had] failed to reappraise the prosecution and the defence evidence so as to determine which one was more cogent and coherent 9. That, [the first appellate] court erred in law and fact in upholding the appellants' conviction white the appellants were not free agents and/or they were subjected to an unfair hearing as the trial court wrongly conducted examination in chief to the appellants hence their defence evidence was unprocedurally dosed as the trial court did not mark that the same had been dosed. 10. That, [the first appellate] court erred in law and fact in upholding the appellants' conviction in a case where the prosecution had miserably failed to prove its charge against the 10 appellants' beyond reasonable doubt as mandatory required by law...". At the hearing of the appeal, the appellants appeared in person, unrepresented while the respondent Republic was represented by Ms. Neema Moshi assisted by Ms. Phoibe Magili, both learned State Attorneys. When they were called upon to argue their appeal, the appellants, who had supplemented their memorandum of appeal with joint written submissions, informed the Court that they were adopting their written submissions and did not have anything to argue orally by way of clarification. They did not also, later on, make any rejoinder to the learned State Attorney's oral reply submissions. In response, to the appellants' written submissions in support of their grounds of appeal, Ms. Moshi began by contending that, the 6th ground of appeal had been improperly raised because it involved matters which were not dealt with and decided by the two courts below. Having scrutinized the contents of that ground of appeal, we agree that, having been raised as a new ground, the same is not worth consideration by the Court. It is thus struck out. 11 With regard to the 1st ground of appeal, the appellants argued in their written submissions that, the evidence of PW1 and PW2 was in variance with the charge in that, whereas according to the charge, the appellants were only accused of stealing cash, TZS 5,000,000.00, in his evidence, PW1 stated that, properties other than cash were also stolen. While he testified that, in addition to TZS 5,000,000.00, two mobile phones were stolen, PW2 stated that a lot of money, the amount of which he did not know, was stolen. Relying on the case of Donald Joseph Nzweka and three Others v. Republic, Criminal Appeal No. 464 of 2019 (unreported), the appellants submitted that the variance rendered the charge fatally defective. In reply to the arguments made in support of that ground, Ms. Moshi submitted that, the evidence of the two witnesses on what was stolen from PWl's house, did not render the charge defective. She explained that, since PW1, the victim, mentioned TZS 5,000,000.00, which was the amount stated in the charge, the mention by him of other stolen properties, did not have the effect of making the charge defective. Having considered the appellants' argument and the reply thereto by the learned State Attorney, we agree that this ground is without 12 merit. The fact that, in his evidence, PW1 testified that, apart from TZS 5,000,000.00, he was also robbed two mobile phones, did not render the charge defective. Furthermore, the evidence of PW2 to the effect that, he did not know the amount of the money stolen, did not deviate from the charge so as to render it defective. Both PW1 and PW2 testified in support of the offence charged, that money was stolen from PW1 at a gun point. If anything therefore, it is the details of the evidence of the two witnesses that the appellants complained of than the variance between the charge and evidence. We therefore, find the 1st ground of appeal devoid of merit and thus dismiss it. Having determined the 1st ground of appeal, we now proceed to consider the 7th, 8th and 9th grounds together. In those grounds, the appellants complained, first, that the first appellate court did not properly evaluate the evidence and secondly, that they were not afforded a fair hearing because their defence was wrongly closed. They also repeated the complaint raised in the 6tfl ground which we have already determined above. Starting with the complaint that, their defence was wrongly closed, Ms. Moshi submitted in reply that, the argument is unfounded because 13 the law does not require a trial Magistrate to record at the end of the defence case that, the same had been closed. As for the complaint on re-evaluation of both the prosecution and defence evidence, the learned State Attorney argued that, the first appellate court undertook that duty and found that, the prosecution evidence had proved the case against the appellants beyond reasonable doubt. Citing the case of Onesmo Dadi @ Ndisael and Another v. Republic, Criminal Appeal No. 283 of 2022 (unreported), she urged us to find the complaint devoid of merit. Indeed, as argued by the learned State Attorney, the complaints raised in the above stated grounds of appeal are, with respect, meritless. On the closure of the defence case, it is clear from the record that, at the end of their evidence, the appellants notified the court of the closure of their case. Each one of them stated as follows at page 76 of the record of appeal:"/ dose my case". The learned trial Principal Resident Magistrate then proceeded to fix the date of judgment. It is obvious that, by stating that they had closed their case, it would have served no useful purpose for the trial court to record that the appellants had closed their case. That would have been superfluous. Furthermore, as submitted by Ms. Moshi, there is 14 no law which requires that, at that stage of the proceedings, the trial Magistrate must record that, the defence case had been marked closed. On re-evaluation of the prosecution and the defence evidence; we also agree with the learned State Attorney that, the first appellate court cannot be faulted for having failed to discharge its duty. The court performed that legal duty when considering the grounds of appeal argued by the appellants. This is evidenced by the record of appeal from pages 154 to 158. With regard to the appellants' defence, which they contended that it was disregarded without appreciating that it raised a reasonable doubt against the prosecution case, that contention is also without merit. At page 158 of the record, the learned first appellate Judge re-evaluated the evidence and concurred with the trial court that, the prosecution evidence had proved the case against the appellants to the hilt, meaning that the defence evidence did not raise any reasonable doubt against the prosecution case. The analysis of the appellants' evidence, by the trial court, which the High Court agreed with its outcome, is found at pages 104-105 of the record of appeal. Starting with the evidence of DW1, the trial court stated as follows: 15 ’7 had the opportunity o f examining the defence testimony o f the accused. With respect, it is an afterthought". As for the 2nd appellant, it was observed that: "[The] second accused's [defence] is that his tenant who happened to be a retired police officer fabricated the case against him. With respect, [the] accused's defence is all I can call an invented testimony". It was because of the foregoing reasons, we held above that, the learned first appellate Judge cannot be faulted on the basis of the complaints raised in the 7th, 8th and 9th grounds of appeal. The three grounds, which are lacking in merit, are thus dismissed. We now revert back to the 5th ground of appeal. The arguments in respect of that ground were made by the appellants in the course of submitting in support of the 2nd ground of appeal. They argued that the identification register (exhibit PI) was wrongly admitted in evidence because its contents were not read out in court. Ms. Moshi readily conceded to that transgression. From the record of appeal at page 19, it is true that, the contents of the Identification Parade Register (exhibit 16 PI) were not read out to the appellants. Reading out the contents of an exhibit after its admission in evidence, is a mandatory requirement as held by the Court in a number of its decisions. For instance, in the case of Semeni Mgonela Chiwanza v. Republic (Criminal Appeal No. 49 of 2019) [2019] TZCA 329 (24 September 2019) in which the admitted exhibits were not read out after their admission in evidence, the Court held that: "...in the case at hand, after exhibits PI and P3 were introduced and cleared for admission they did not complete the third stage o f being read out in Court so that their contents couid be heard by the appellant. The foregoing omission make exhibit PI and P3 to lack evidential value and we hereby expunge them from the record" Since in the present case, the requirement of reading out exhibit PI was not complied with, we allow the 5th ground of appeal and hereby expunge that exhibit from the record. Next for our consideration are the 2nd and 4th grounds of appeal. In the 2nd ground, the appellants contented that, the identification evidence of PW1 and PW3 was insufficient to found their conviction. They argued 17 that, the evidence of the said witnesses did not meet the conditions for positive identification under difficult circumstances as was the situation in this case in which, the incident took place at night. Relying on inter alia, the case of Jaribu Abdallah v. Republic [2003] T.L.R. 271 and Anael Sambo v. Republic, Criminal Appeal No. 274 of 2007 (unreported), they urged us to find that, they were not properly identified at the scene of crime. In reply, the learned State Attorney opposed the contention by the appellants that, they were not properly identified at the scene of crime. She argued that, the conditions for identification were favourable because there was sufficient light in the room which enabled them to identify the assailants who did not cover their faces. She argued further that, the 1st appellant was pursued and arrested shortly after the robbery incident while the 2nd appellant was named by his co-appellant and later identified at the identification parade. Ms. Moshi admitted however, that since the evidence of the identification parade was invalid as she earlier on admitted when responding to the 5th ground of appeal, there is obviously no evidence on record to the effect that the appellants were identified at the identification parade. 18 On the 4th ground of appeal, the appellants argued that, their respective cautioned statements, exhibits P2 and P7, were unprocedurally admitted in evidence because, they were recorded in contravention of sections 53 (c) (ii) and 54 (1) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA). The basis of their complaint are, one, that they were denied the right to have a relative, a friend or a lawyer (a witness) at the time when their statements were being recorded, two, that exhibit P2 was read out by the State Attorney instead of PW5 who recorded it, three, that exhibit P2 was wrongly admitted in evidence at the ruling stage and that the same was not thereafter, tendered in court for identification purposes and four, that the evidence of the exhibits was wrongly acted upon for want of corroboration, the same having been retracted. On the requirement of corroboration, they cited the case of Tuwamoi v. Uganda [1967] 1 E.A 84 to support their argument. Responding to the arguments made by the appellants on that ground of appeal, Ms. Moshi supported the finding of the High Court, first, that at the time of recording the cautioned statements, the appellants were given the opportunity to have their witnesses, if any, but expressed that they did not intend to call any. Secondly, that the cautioned statements were corroborated by the evidence of PW1 and PW2. On the other complaints raised by the appellants in this ground of appeal, the learned State Attorney urged us to find that they are equally devoid of merit. In determining this ground of appeal, we wish to begin by stating that, in the trial court, the 1st appellant objected the admission of his cautioned statement on two grounds; that, he was not afforded the opportunity to have his statement recorded in the presence of his witness and that, the statement was recorded out of time. On the part of the 2nd appellant, apart from the two grounds of objection raised by the 1st appellant, he raised the ground that, his statement was wrongly recorded by PW8 who was also the investigator of the case. All the three grounds of the objection were overruled by the trial court. In their appeal to the High Court, the appellants raised yet another ground challenging the legality of the 1st appellant's cautioned statement; that the same was recorded by PW5 in the room were other police officers were present. According to the appellants, by so doing, 20 the recording of the statement was unprocedurally done. That ground was dismissed by the learned first appellate Judge who held that, from the record, the statement was given voluntarily and in any case, no injustice was occasioned to the appellants. Now, in this appeal, the appellants have raised four complaints challenged the legality of their statements. In those grounds, they have repeated the complaint that, they were not afforded the opportunity to have witnesses at the time of recording their statements as required by section 53 (c) (ii) and 54 (1) of the CPA. Having gone through the record and the decision of the trial court, which was upheld by the High Court, we could not find any justifiable reasons to fault the finding that, the appellants were afforded the right complained of. Going by the record, it is not disputed that, they signed their respective cautioned statements. In his evidence at page 64 of the record, the 1st appellant stated as follows: 7 understood my statement at the police station. I was asked to sign and I signed" On his part, the 2nd appellant stated as follows, at page 71 of the record: 21 '7 signed document at police station. I don't know where poiice got my statement" On the first page of the appellants' cautioned statements, there are preceding parts (in standard form) which enjoins the police officer recording the statement to inform the person giving the statement, of his rights including the right to have a witness. Each of the appellants signed that part of the form before his statement was recorded, acknowledging that he was informed of those rights and each of them indicated that, he had understood his rights. Thereafter, each of them was asked whether he wished to have a witness during the recording of his statement. They waived that right. The 1st appellant stated that: "mimi mwenyewe biia ya kuwepo mtu yeyote". As for the 2nd appellant, his response was that:"mimi mwenyewe natosha". Undaunted, in their further endeavour to show that the evidence of their cautioned statements was wrongly acted upon to found their conviction, they have, in this ground of appeal, raised three more complaints stated above. With regard to the complaint that exhibit P2 was read by the State Attorney instead of PW5, we do not find that, the irregularity had caused 22 any injustice to the appellants. This is more so because, the 1st appellant did not complain in his defence or in his first appeal, that he did neither understand the contents of his cautioned statement nor that, the contents were interpolated. We are equally of the same view as regards the complaint that, exhibit P2 was wrongly admitted at the ruling stage. After its admission in evidence, the document was read out during the hearing and therefore, no prejudice was occasioned to the appellants. On the contention that, the evidence of the appellants' cautioned statements was not corroborated, we are also unable to agree with that complaint. There is on record, the evidence of PW1, PW2 and PW8. Their evidence corroborated the 1st appellant's confession that, he was arrested shortly after the incident by the mob who, upon apprehending him, started to set him on fire but was rescued by the police who arrived at the scene. The evidence of PW8, who received the said appellant at the police station, confirmed that, he had burn wounds which he sustained after the mob had attempted to burn him alive. As for the evidence of the 2nd appellant's cautioned statement, the same is corroborated by the evidence of PW7 who, as stated earlier averred that, following the arrest of a person who was suspected to have 23 been involved in the commission of another robbery incident at Kinyerezi, led to the arrest of the said appellant. It was after his arrest and interrogation that he confessed in his statement that, he participated in the commission of the robbery at PWl's house. For the reasons stated above, we are settled in our mind that, the four points upon which the 4th ground of appeal was based, are lacking in merit. This ground is therefore, also dismissed for want of merit. Having determined the foregoing ground of appeal in the manner shown above, the need for determining the second and third grounds does not arise. In the first place, none of the appellants was charged with the offence of unlawful possession of a firearm or ammunition. Secondly, the appellants' conviction was not solely based on the evidence of recovery from the 2nd appellant, of the pistol and 12 rounds ammunition after a similar incident which took place at Kinyerezi. In its decision, which was upheld by the High Court, the trial court held that: "There is uncontroverted evidence that on that night, three bandits ambushed and robbed PW1 and PW2. There is uncontroverted evidence that 24 bandits fired a gunshot (sic) white inside the house. Testimony o f PW1 and PW2 substantiated that evidence and corroborated by PW4 who retrieved empty butlet cartridge at the scene o f crime. Without much ado, I think, and so hold that the evidence dictates that this was an armed robbery incident. The fact that the bandits used a firearm was also proved by the evidence of PW1 and PW4 that, apart from the recovery of a spent cartridge at the scene of crime, there was evidence of a damage caused by a fired bullet in the PWl's house. The evidence was therefore, sufficient to found the appellants guilty of the offence of armed robbery even without the recovery of the pistol. With regard to the evidence of identification of the appellants, having found that their confessions, which was properly corroborated, had sufficiently proved their guilt, the need to delve in answering the issue whether on not they were identified at the scene of crime, does not arise. The finding on the 4th ground of appeal suffices also to dispose of the 10th ground of appeal. We have found that, the appellants' cautioned statements as corroborated by the evidence of the prosecution 25 witnesses, particularly PW1, PW2, PW4 and PW8 was watertight and thus proved the case against the appellants beyond reasonable doubt. In the event, we find the appeal lacking in merit and hereby dismiss it. DATED at DAR ES SALAAM this 29th day of July, 2024. A.G. MWARIJA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 31st day of July, 2024 in the presence of the 1st and 2nd appellants appeared in person via video link from Ukonga Prison and Mr. Faraji Ngoleah, learned Senior State Attorney for the respondent/Republic; is hereby certified as a true copy of the oriainal. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL