YAHAYA MOHAMED MATABORA Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY)

AT DODOMA DC CRIMINAL APPEAL NO. 23488 OF 2024 (Original Criminal Case No. 53 of 2023 of the District Court of Singida before Hon. F. E. Luvinga, SRM) YAHAYA MOHAMED @MATABORA………………..………………………..APPELLANT Vs THE REPUBLIC…………………………..............................................RESPONDENT

JUDGMENT Date of last order: 16th December, 2024 Date of Judgment: 21 February, 2025 E. E. KAKOLAKI, J This is the first appeal by the appellant who is seeking to overturn the decision of the District Court of Singida dated 09/07/2024 whereby the appellant was convicted and sentenced to serve thirty years imprisonment after being found guilty of the offence of Armed Robbery, contrary to section 287A of the Penal Code [Cap. 16 R.E 2022]. 1 Briefly before the trial court the appellant was facing the charge of Armed Robbery, contrary to section 287A of the Penal Code [Cap. 16 R.E 2022] whereby the prosecution alleged that, on 24/04/2023 at Jitulize area, Majengo Ward, Mungumaji Division within Singida District and Region did steal traditional clothes namely Kitenge valued at Tsh. 25,000/ and cash money Tshs. 30,000/ all total valued at Tshs. 55,000/- the properties of one Jenipha Malima and immediately before such stealing did threaten the said Jenipha Malima by using a machete in order to obtain and retain the said properties. The prosecution relied on five witnesses and four documentary exhibits to wit the victim (PW1), her daughter (PW3), A/Insp. Elizabeth who conducted Identification parade of the appellant and tendered it (exhibit P1, the doctor who attended the victim (PW4) and tendered PF3 (exhibit P2), G. 2690 D/Cpl Waziri (PW5) the investigator who arrested and

recorded appellant’s caution statement and its additional statement (exhibit PE3 collectively) and later on recalled as PW6 to tender witness statement of Petro Avitema (exhibit P4) who witnessed the identification parade conducted against the appellant. On the other side the appellant defended himself on oath as DW1 raising a defence of alibi and summoned one witness (DW2) to corroborate his defence, with no any documentary exhibit to rely 2 on. After full trial the court was satisfied that the prosecution had managed to prove its case beyond reasonable doubt against the appellant and proceeded to convict him of the offence charged with and sentenced him to serve thirty years imprisonment. It is the said conviction and sentence which he is discontented with and now inviting this court to displace it. In so doing the appellant is relying on three grounds of appeal going thus:- 1. That, the trial court erred in law and facts in convicting the appellant without cogent evidence adduced by prosecution side to prove the offence beyond reasonable doubt.

2. That, the evidence adduced by prosecution witnesses is full of contradictions and inconsistencies and cast doubt on the prosecution case which should have been resolve in favour of the appellant.

3. That, the trial court erred in convicting the appellant without considering the principle that the appellant cannot be convicted on the weakness of his defence but on the strength of the prosecution evidence. At hearing of this appeal, the appellant appeared in person unrepresented while Mr. Gothard Mwingira and Ms. Jackline Manyala, learned State 3 Attorneys, appeared for the Respondent/Republic. When invited to argue his appeal the appellant had nothing material to submit on instead requested the court to consider the grounds of his appeal which are self-explanatory and proceed to allow the appeal as he also left the ball to respondent to counter the same. On his side Mr. Mwingira (S/A) from the outset expressed respondent’s position that was contesting the appeal. It was Mr. Mwingira’s submission on the 1st ground of appeal that offence of Armed Robbery that faced the appellant under section 287A of the Penal Code, [Cap. 16 R. E 2022] was proved to the hilt since the three ingredients of the offence namely theft, use of offensive or dangerous weapons before or after commission of an offence and the used offensive weapon to be directed to the victim as stated by the Court of Appeal in the case of Shabani Said Ally Vs. R, Criminal Appeal No. 270 of 2018 (CAT) Tanzlii were all established through the evidence tendered in Court. On the ingredients of theft he said, PW1

was categorical in his testimony when clearly expressed at page 6 of the typed proceedings on how on the incident date the appellant suddenly attacked and cut her with a machete on head near the traffic light before he managed to stole her properties namely money Tsh.30,000/-, clothes (kitenge) worth 4 Tsh.25,000/-, one bucket and four basins which she had in possession. The use of machete which is an offensive weapon in his submission also proved the 2nd ingredient as that evidence is corroborated by PW2 who came to her rescue and PW4, the doctor (at page 15 of the typed proceedings) who exhibited that she attended PW1 who was injured on her face with sharp object as per exhibit P2. Regarding the last ingredient on identification of appellant Mr. Mwingira argued that evidence of PW3 who conducted the identification parade (exhibit P1) confirmed to the trial Court, that PW1 properly identified appellant since the offence was committed at the traffic light where there was bright electricity light and that, all the procedures for conducting sound identification parade in terms of PGO were followed. And that, evidence on identification parade is corroborated by the witness statement of the person who witnessed the exercise (exhibit P4). PW1’s evidence was further corroborated by the appellant's confession in exhibit P3 as when confessed to have committed the said offence. Such

strong evidence coupled with evidence of PW5 on how the appellant was arrested left the trial court without doubt that, the prosecution case was proved against the appellant 5 beyond reasonable doubt hence the first ground of appeal is unmerited and deserve to the dismissed, Mr. Mwingira submitted and stressed. As to the 2nd ground of appeal on the complaint that prosecution case was marred with contradictory evidence which ought to be resolved in appellant's favour Mr. Mwingira submitted that, the contradiction if any were minor and were addressed by the trial court and found to be minor. To him minor contradictions were related to number of participants in the identification parade and the position which the appellant took on that day. He reffered the Court to the case Shabani Haruna @ Dr. Mwagilo Vs. R, Criminal Appeal No. 396B of 2017 (CAT) Tanzlii page 19 where the Court cited the case of Eliah Bariki Vs. R, Criminal appeal No. 321 of 2016 (CAT- unreported) on the requirement of the trial court to consider and decide on raised contradictions whether they are minor or not and they go to the root of the case or not, in which the said trial court in this matter discharged that duty. To him since the appellant confessed his own wrong as seen in exhibit PE3, that alone is a proof that he committed the offence as the offender who confesses his offence becomes the best witness as

held in the case of Herman Muhe Vs. R, Criminal Appeal No. 113 of 2020 (CAT) Tanzlii at page 14. With that appellant’s confession to him, even the contradictions 6 noted are outweighed by his own confession for assisting the prosecution to advance its case regarding commission of the offence of Armed robbery. He thus invited the Court to find the appeal is without merit and dismiss it. On the 3rd ground of appeal Mr. Mwingira submitted that the same is meritless as what is addressed above in reply to the first ground of appeal has proved that the prosecution case is strong hence it was proper for the trial court to rely on it to base its conviction. He therefore urged this Court to dismiss the appeal for want of merit as the trial court’s findings, conviction and sentence of the appellant were arrived at correctly. In brief rejoinder submission the appellant maintained that court should consider his appeal and re-evaluate the evidence before the trial court and come up with its own finding on the merit of appeal hence allow the same and release him from prison. I had an ample time to consider the fighting arguments from both parties and revisit the evidence in record as well as impugned decision. It is a settled principle of law based on the provisions of section 110(1) and (2) of the Evidence Act, [Cap. 06 R.E 2022] that, in criminal cases it is the prosecution that bears the

burden of proving that the accused committed an offence 7 facing him and the standard is that of beyond reasonable doubt as also pronounced in section 3(2)(a) of the Evidence Act, [Cap. 06 R.E 2022]. See also the case of Mohamed Said Matula Vs. R [1995] T.L.R. 3 (CAT). In the matter at hand the appellant in the first ground of appeal is challenging the trial Court’s conviction arguing that, the same is not founded on cogent evidence that proved beyond reasonable doubt the charge facing him while Mr. Mwingira holds the opposite view. The issue for determination therefore is whether the offence of armed robbery was proved against the appellant on the required standard. As alluded to above before the trial Court the appellant was facing a charge of Armed Robbery, contrary to section 287A of the Penal Code where it was alleged in the charge sheet that, on 24/04/2023 at Jitulize area, Majengo Ward, Mungumaji Division within Singida District and Region did steal traditional clothes namely Kitenge valued at Tsh. 25,000/ and cash money Tshs. 30,000/ all total valued at Tshs. 55,000/- the properties of one Jenipha Malima and immediately before such stealing did threaten the said Jenipha Malima by using a machete in order to obtain and retain the said properties. Section287A of the Penal Code provides that: 8 287A. A person who steals anything, and, at or immediately before or after

stealing is armed with any dangerous or offensive weapon or instrument and at or immediately before or after stealing uses or threatens to use violence to any person in order to obtain or retain the stolen property, commits an offence of armed robbery and shall, on conviction be liable to imprisonment for a term of not less than thirty years with or without corporal punishment. From the above exposition of the law for the offence of Armed Robbery to be proved three ingredients must be established as correctly submitted by Mr. Mwingira. These are, one, theft, second, use of dangerous or offensive weapon, and third, threat or use of the said dangerous or offensive weapon against the victim for purposes of stealing or retaining the property after stealing the same. See also the cases of Shabani Said Ally (supra) and Amos Sita @ Ngili Vs. R, Criminal Appeal No. 438 of 2021 (CAT) Tanzlii. However I would add the fourth ingredient that, it is the accused person who perpetrated the said offence. In Amos Sita @ Ngili (supra) when interpreting the provisions of section 287A of the Penal Code on the ingredients of the offence of Armed Robbery the Court of Appeal had this to say: 9 ’’…to prove the offence of armed robbery three ingredients have to be proved, that is, “one, that there was stealing; two, use of a dangerous or offensive weapon by the invader, immediately before or after

stealing, and three, that, the invader used or threatened to use actual violence in order to obtain or retain the stolen property” In the present matter having revisited the evidence relied on by the prosecution there is no dispute from the evidence of PW1 (the victim) as found at page 6 and 7 of the typed proceedings that, on the 24/04/2023 at about 20.00 hours near the traffic light area was suddenly strangled by neck and cut on her head with a machete where her Tshs. 30,000/, Kitenge, bucket and four basins were stolen by the accused person whom she recognised as Matobora after being mentioned to her people who responded to the scene of crime. It is trite law that the prosecution is duty bound to adduce evidence to establish the essential ingredients of the offence and in this case armed robbery as stated above. In the case of Zubell Opeshutu Vs. R, Criminal Appeal No. 31 of 2003 cited with approval in Dickson Joseph Luyana and Another Vs. R, Criminal Appeal No. 1 of 2005 (both unreported), the Court of Appeal held that:- "The prosecution has to adduce evidence to establish the essential ingredient of the offence, that is, whether actual 10 violence was used to obtain or retain the thing stolen. The nature of violence must also be proved. A prerequisite for the crime of robbery is that there should be violence to the person or the complainant..." In this matter deducing from

PW1’s evidence there is no dispute that, her properties were stolen from her and such stealing was accompanied by use of machete which no doubt is an offensive or dangerous weapon before such stealing hence proof of the first and second elements of stealing and use of actual violence. What remains in dispute in my opinion is the third ingredient on the nature of the actual violence used in which I find there is variance between what is stated in the particulars of offence and PW1’s evidence. While the particulars of offence described the nature of actual violence to be that, immediately before such stealing the offender did threaten Jenipha Malima (PW1) by using a machete in order to obtain and retain the stolen properties, PW1 in her evidence gave a contrary testimony that the said offensive weapon (machete) was actually used to cut her on the head and not threaten her as claimed in the charge sheet. For the offence of Armed Robbery to be complete under section 287A of the Penal Code, the offender or invader must either use or threaten to use violence to the victim in order to obtain or retain the stolen property. Since the prosecution failed to 11 lead evidence proving the nature of actual violence applied as stated in the charge sheet, I find the omission is fatal for going into the root of the case hence affect appellant’s conviction as the case remains unproved. The above

notwithstanding I find there is also doubt on the fourth ingredient whether it is the appellant/accused person who committed the offence. I so find as the uncontroverted fact is that, the armed robbery incident occurred at 20.00 hours when it was already dark, thus evidence on visual identification ought to be advanced by the prosecution. However, having glanced at PW1’s evidence apart from claiming that she identified the appellant as her assailant, there was no disclosure of the source of light and its intensity that aided her to identify him. This fact was also appreciated by the trial Court in its judgment at page 8 when stated that, ‘it is unfortunate that, she did not mention the source of light.’’ The importance of disclosure of source of light and its intensity in giving assurance to the Court of existence of favourable conditions for unmistaken identity has been restated in numberless authorities. See the cases of Said Chally Scania Vs. R, Criminal Appeal No. 69 of 2005, Issa Mgara @ Shuka Vs. R, Criminal Appeal No. 37 of 2005 ( both CAT- unreported), Baya Lusana Vs. R, Criminal Appeal No. 593 of 2017 and Godfrey Lucian Shirima Vs. R, 12 Criminal Appeal No. 40 of 2021 (both CAT) Tanzlii. In Said Chally Scania (supra) the Court of Appeal had the following observation to make on unmistaken identity of accused person: "We think that where a witness is testifying about

another in unfavourable circumstances like during the night he must give clear evidence which leaves no doubt that the identification is correct and reliable. To do so/ he will need to mention all aids to unmistaken identification like proximity to the person being identified, the source of light, its intensity, the length of time the person being identified was within view and also whether the person is familiar or a stranger.’’ Alongside with that, it was expected if at all PW1 identified her assailant would have mentioned him to the first person to respond to the scene. To the contrary in her testimony, she averred that was informed of the name of the accused person/appellant by the people who responded to the scene of crime. Surprisingly the arresting officer PW5 never disclosed to the Court as to who mentioned the appellant to him as the culprit before effecting his arrest on the next day of the incident. It is settled law that, the ability of a witness to name his assailant to the third party at the earliest possible time renders assurance of his/her reliability to the court. See the case of Marwa Wangiti Mwita and Another Vs. R, [2002]TLR 39. In this case since no 13 any prosecution witness exhibited to the trial Court that PW1 mentioned the appellant to him/her as the person who attacked him, then it remains in doubt as to whether she managed to identify the appellant

on the fateful day. Another piece of evidence which the trial court relied on to convict the appellant is the identification parade that was conducted on 25/04/2023 at 12.30 hours by PW3, where it is stated PW1 identified the appellant as the person who attacked her. In his submission Mr. Mwingira apart from confessing that, there was contradiction on the number of participants in the said parade and the position the appellant took, between the testimonies of PW1 and PW3 as well as the witness statement of Petro Avitema who witnessed the said identification parade conducted as per the register exhibit P4. In her evidence PW1 averred that, on the fateful day when called to identify her assailant the appellant who she identified had stood in the 4th position from right in the total number of eight participants while PW3 who conducted the parade and Petro Avitema who participated in it said the number of participants was nine (9) and the appellant was in the fifth (5th) position from right meaning at the middle of the line. It is Mr. Mwingira’s submission that this contradiction on the number of participants and the 14 position the appellant had taken is minor for resulting from the loss of memory by PW1 due to lapse of time. As correctly submitted by when citing the case of Shabani Haruna @ Dr. Mwagilo Vs. R, Criminal Appeal No. 396B of 2017 (CAT-unreported) that made reference

to the case of Eliah Bariki Vs. R, Criminal Appeal No. 321 of 2016 (CAT-unreported), in evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether the discrepancies and contradictions are minor or whether they go to the root of the matter. In this matter having considered the whole evidence of PW1 (victim) who participated in the parade for identifying the appellant, I do not buy Mr. Mwingira’s submission that her contrary evidence on the number of identification parade participants and the position the appellant took as against the evidence of PW3 and the participant’s statement exhibit P4 is is caused by lapse of time hence loss of PW1’s memory. I so do as the parade was conducted on 25/06/2023 and PW1 testified on 27/06/2023 two days only passed. This period in my humble view is not too long to affect PW1’s memory. Had he lost memory on the number of participants only that would be tolerable but missing memory even on the position the appellant had 15 taken in the line raises doubt and that contradiction in my opinion goes to the root of the matter as the 4th person in the line from right whom PW1 claimed to have identified as appellant was one Petro Avitema whose statement was tendered as exhibit P4. In view of the above I discount

the said piece of evidence on identification of the appellant. Lastly in evidence relied on by the trial court to convict the appellant was his caution statement and its additional statement exhibit P3 collectively where the appellant is alleged to have confessed to commit the offence of Armed Robbery. Having thoroughly perused the said statement it is noted that, though alleged to contain confession on the offence of Armed Robbery when interviewed the appellant was cautioned under the provisions of section 287 of the Penal Code which provides for the offence of Attempted Robbery and not Armed Robbery under section 287A of the Penal Code, the offence which the appellant was being faced with. The essence of informing the accused person with the offence and the provision of law under which he is charged is to inform him the nature of the accusation facing him so that if confession is obtained the same is considered unequivocal. In this matter since the appellant was cautioned under different provision of the law it cannot be concluded that, he understood the nature of the offence facing him before 16 he entered his confession. Thus, his confession in exhibit P3 if any I hold is fatally flawed for want of proper provision of the law in which the offence that faced him is founded. Thus, could not have proved the offence that faced the appellant. Assumed for the sake of argument the

appellant was cautioned with proper offence and the law, still I would have held the offence is not proved as already alluded to above for one good reason that, the confession statement was to the effect that he assaulted the victim on the head using machete while the particulars of the offence claimed that he threatened her by using a machete. In other words the prosecution ought to have led evidence to prove that the appellant used machete to threaten PW1 before stealing her properties or amend the charge under section 234(1) of the Criminal Procedure Code, [Cap. 20 R.E 2022] in which it failed to do. In totality having considered the weaknesses of prosecution evidence as demonstrated above the issue raised above is answered in negative that, the prosecution failed to prove its case against the appellant beyond reasonable doubt hence the trial Court wrongly convicted him. The first ground of appeal I hold suffices to dispose of this appeal hence no need to venture much on the merits of the rest of the grounds of appeal. 17 In totality I find the appeal to be meritorious and proceed to allow the same. Consequently, appellant’s conviction is quashed and the sentence meted on him set aside. It is hereby ordered that; he is released from prison with immediate effect unless otherwise lawfully held. Order accordingly Dated at Dodoma this 21st day of February, 2025. E. E. KAKOLAKI

JUGDE 21/02/2025. Court: This Judgment has been delivered at Dodoma today on this 21st day of February 2025, in the presence of the appellant in person, Ms. Fatuma Mgunya, State Attorney for the respondent and Veradina Matikila, court clerk. Right of appeal fully explained. E. E. KAKOLAKI

JUGDE 21/02/2025. 18