Jacob Simion @ Paul & Another vs Republic (Criminal Appeal No. 673 of 2023) [2026] TZCA 364 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: NPIKA. J.A.. FIKIRINI. J.A. And ISMAIL J J U CRIMINAL APPEAL NO. 673 OF 2023 JACOB SIMION @ PAUL.................................................. .....1s t APPELLANT CHARWI CHACHA @ KITARANGE ........................................ 2n d APPELLANT VERSUS THE REPUBLIC..................................................................RESPONDENT (Appeal from Judgment of the High Court of Tanzania, at Musoma) f Mahimbali, J^ dated this 27th day of April, 2023 in Criminal Appeal No. 110 of 2022 JUDGMENT OF THE COURT ISP & 27th March, 2026 FIKIRINI. J.A.: The appellants were jointly charged before the District Court of Tarime in Criminal Case No. 301 of 2021 with the offence of armed robbery, contrary to section 287A of the Penal Code, Cap. 16. It was alleged that on 11th December, 2021, at Gwitro Village in Tarime District, Mara Region, the appellants stole TZS 83,000/= from Charles John Marwa. Immediately before or during the theft, they used a panga to injure the victim in order to obtain and retain the stolen property. The appellants pleaded not guilty, and the matter proceeded to full trial. The prosecution's evidence was that on the night of 11t h December, 2021, Charles John Marwa (PW1) was walking home from a funeral ceremony in the company of the appellants. Along the way, he stopped at a shop to purchase a torch. When he took out money to pay, the appellants became aware that he had cash. The second appellant requested that he buy alcohol, which PW1 refused. Shortly thereafter, PW1 and the appellants parted ways. While walking between two houses near his home, PW1 was suddenly attacked. The second appellant struck him on the head with a panga, while the first appellant hit him on the arms with a club. PW1 fell to the ground, and the appellants took TZS 83,000/= from him. PW1 testified that the area was illuminated by 60-watts electric bulbs positioned opposite each other, enabling him to clearly identify the attackers. He further stated that he knew both appellants well, as they were born and raised in the same village. PW2 testified that he rushed to the scene upon hearing cries for help and found PW1 seriously injured. He confirmed that the area was well-lit and that he personally knew the appellants. His testimony corroborated PWl's account. PW3 also responded to the alarm, found PW1 severely wounded, and later participated in tracking footprints that led to the appellants' residences, where they were apprehended. PW4 and PW5, medical personnel, testified that they treated PW1 at the hospital and found deep cut wounds on his head and injuries on his arms. A medical examination report was tendered and admitted into evidence. In their defence, the appellants denied the allegations. The first appellant claimed ignorance of the offence and expressed surprise at his arrest. The second appellant stated that he had not left his house on the material night and was similarly surprised of his arrest. Upon evaluation of the evidence, the District Court found that: (i) theft of money had occurred, (ii) the appellants were armed with dangerous weapons, namely a panga and a club, (iii) violence was used to accomplish the theft and (iv) the appellants were positively identified. Consequently, the appellants were convicted of armed robbery and sentenced to thirty years' imprisonment. Dissatisfied, the appellants unsuccessfully appealed to the High Court of Musoma in Criminal Appeal No. 110 of 2022. The High Court after re-evaluation of the evidence, upheld the findings of the trial court, and dismissed the appeal in its entirety, affirming both conviction and sentence. Still aggrieved, the appellants have now preferred the present appeal to this Court. 1) The first appellate court erred in law and fact by upholding the conviction and sentence when the case was not proved to the required standard. 2) The first appellate court failed to properly evaluate and analyze the evidence o f PW1, PW2f and PW3, leading to an unjust conclusion. 3) The first appellate court erred by confirming the conviction despite two sets o f contradicting trial court proceedings regarding PW4 and PW5f violating the standard o f proof in criminal cases. 4) The first appellate court erred by holding that the issue o f the doctor's identity did not arise, yet PW4 was cross-examined on it And from the supplementary memorandum the grounds were: 1. The lower courts wrongly relied on unfavorable visual identification, as witnesses failed to explain light intensity, relied on a unique mark and footprints instead o f direct identification, and familiarity is not a guarantee o f identification. Reference was made to Godfrey William @ Matiko and Another v R, Cr. App. No. 134 o f 2022 (Cat-Mwanza, unreported) at pages 15-17. When this appeal was called for hearing/ the appellants were represented by Mr. Leornard Elias Magwayega, learned advocate, and for the respondent, Ms. Grace Michael Madikenya, learned Senior State Attorney, was assisted by Ms. Beatrice Mgumba and Mr. Zarubabel Ngowi, both learned State Attorneys. Addressing the Court, the learned counsel for the appellants argued that the prosecution failed to discharge its burden of proving the case beyond reasonable doubt, as required in criminal proceedings. He contended that the alleged visual identification was not established to the requisite legal standard. In his view, the trial Judge erred in law and fact by according undue weight to the evidence of PW1 and PW2 without subjecting it to proper scrutiny, particularly given the prevailing circumstances at the scene. Counsel submitted that the conditions for identification were unfavourable, notwithstanding the reference to electric light by PW1 and PW2. In reply, the learned State Attorney opposed the appeal and supported the concurrent findings of the two lower courts. She maintained that the appellants were properly and positively identified, and that the identification evidence was watertight and free from the possibility of error. She emphasized that PW2, in particular, clearly recognized the appellants and even described their clothing at the material time. To fortify her position, she cited Makende Simon v. R [2021] TZCA 156, in which the Court referred to Waziri Amani v. R [1980] T.L.R. 250, from which the guidelines on identification under unfavourable condition were listed. The principles therein were, however, not exhaustive and that peculiarities of each case must also be considered. The State Attorney dismissed the assertion that the first appellate court failed to properly re-evaluate the evidence. She contended that the court fulfilled its duty of re-assessment and correctly upheld both conviction and sentence by the trial court. In addressing the alleged contradiction regarding the number of assailants, whether two, as stated by PW1, or four, as mentioned by PW4, she submitted that PW1 may have seen two while PW4 observed four, depending on their respective vantage points. The first appellate court rightly considered this discrepancy minor and not going to the root of the case. As for the evidence of PW4 and PW5, the State Attorney found no fault and urged the Court to disregard the criticism. It is settled law that a first appellate court has a duty to re evaluate the entire evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. We have carefully examined the judgment of the High Court and the submissions for and against the appeal. Our deliberation begins with the sole ground in the supplementary memorandum of appeal, namely the issue of identification. Upon perusal of the record, it is evident that the learned Judge summarized the evidence of PW1, PW2, and PW3, considered the circumstances of the attack, the lighting conditions, and the familiarity between the parties before concluding that identification was proper and that the appellants were among the assailants. The trial court focused on PW1 and PW2, analyzing their prior knowledge of the appellants, the sequence of events, including attendance at the funeral, their presence together at the shop when the victim purchased a torch, and the subsequent attack along the narrow path illuminated by electric light. The first appellate court reviewed this and found the evidence reliable. The High Court further addressed the defence version and rightly found it to be a bare denial incapable of displacing the prosecution's case. We are satisfied that the evaluation of the evidence was properly and carefully undertaken, as reflected at pages 126-133 of the record of appeal. The testimonies of PW1 and PW2 are consistent and mutually corroborative. The minor role played by PW3 does not weaken the prosecution's case, nor was any miscarriage of justice occasioned. It is settled that incidents occurring at night require courts to exercise caution and examine whether conditions for correct identification were favourable. Identification in unfavourable circumstances demands clear evidence of aids such as a source of the light and its intensity. PW1 and PW2 described the intensity of the light coming from the two 60-watts electric bulbs fixed on facing walls, three paces apart, illuminating the narrow path (uchochoro). See: Said Chaly Scania v. R, [2007] TZCA 180, which was referred in Yusuph Sayi & Others v. R, [2021] TZCA 285. In Said Chaly Scania (supra) the Court emphasizing on being cautious when dealing with identification under unfavourable condition had this to say:- "We think that where a witness is testifying about identifying another person in unfavourable circumstances, like during the night, he must give dear evidence which leaves no doubt that the identification is correct and reliable. To do so, he will need to mention aii the aids to unmistaken identification like proximity to the person being identified, the source of light and its intensity, the length o f time the person being identified was within view and also whether the person is familiar or stranger." [Emphasis added] Beyond lighting, which is major factor in identification under unfavourable condition, PW1 and PW2 knew the appellants from birth as they were from the same village. What's more, on the material day, they attended the same funeral and left together, providing multiple safeguards against mistaken identity. PW1 specified each appellant's role, one wielding a club, the other a panga, indicating clarity. We agree with the learned State Attorney that identification was proper. Both courts below evaluated these factors and were satisfied that the identification was free from the possibility of error. This complaint therefore lacks merit. Turning to the first ground, which essentially encompasses the second, third, and fourth grounds, the appellants contend that the case was not proved beyond reasonable doubt. The record shows that the trial court correctly directed itself to the essential elements of armed robbery under section 287A of the Penal Code: (i) theft, (ii) being armed with a dangerous or offensive weapon, and (iii) use or threat of violence to obtain or retain stolen property. PW1 testified that TZS 83,000/= was forcibly taken from him by the appellants. He further stated that the appellants, known to him from the same village and seen earlier at the funeral, attacked him along a narrow path after he refused the second appellant's request for purchase of liquor at the shop. He was struck with a club by the first appellant and cut on the head with a panga by the second appellant. This evidence remained unshaken in cross-examination. PW2 and PW3 corroborated that PW1 was found immediately after the incident, badly injured and crying for help. PW4 and PW5 medically confirmed injuries consistent with cuts and blunt trauma. A miscarriage of justice would arise if the conviction were founded on illegal, unreliable, or insufficient evidence, or if the courts below applied wrong principles of law. Our thorough review of the record reveals the contrary, that the evidence was properly evaluated, the law correctly applied, and the ingredients of the offence proved. The courts below rightly held that the prosecution discharged its duty under section 117(1) of the Evidence Act, Cap. 6 [R.E. 2023]. This ground therefore lacks merit. 10 In short, we find no reason to fault the concurrent decisions of the two lower courts. The case against the appellants was proved beyond reasonable doubt. Accordingly, the appeal is dismissed in its entirety. DATED at DODOMA this 26th day of March, 2026. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 27th day of March, 2026 via virtual court in the presence of appellants in persons/unrepresented, Ms. Martha Mbosoli, learned State Attorney for the Respondent and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the ii