Mrisho Rashid Adam vs Republic (Criminal Appeal No. 155 of 2024) [2026] TZCA 369 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. J.A., MGONYA. J.A. And KHAMIS, J A J CRIMINAL APPEAL NO. 155 OF 2024 MRISHO RASHID ADAM..........................................................APPELLANT VERSUS THE REPUBLIC ........................................................ ......... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam) (Kafanabo J.t dated the 10th day of November, 2023 in Criminal Appeal No. 114 of 2023 JUDGMENT OF THE COURT 11^ February, & 27th March, 2026 MGONYA. J.A.: Mrisho Rashid Adam, the appellant, and Robert Charles who is not a party to this appeal, were first and second accused, respectively, arraigned in the District Court of Kinondoni for the offence of armed robbery contrary to section 287A of the Penal Code. The matter was heard and determined by the trial court, which found the offense was proved against the appellant; thus, he was sentenced to a mandatory thirty years in prison. The second accused was acquitted, as the charge against him was not proved to the hilt. Aggrieved, the appellant lodged his appeal to the High Court against both conviction and sentence. However, his appeal was unsuccessful; hence, this second appeal. i It was alleged by the prosecution that, Mrisho Rashid Adam and Robert Charles, on the 7th day of March, 2022, at Mabibo Sokoni area within Kinondoni District in Dar es Salaam Region, did steal one mobile phone make Techno worth TZS. 25,000.00, one handbag worth TZS. 30,000.00, one rasket bag worth TZS. 35,000.00, and one khanga worth TZS. 8,000.00, all valued at TZS. 380,000/= the properties of one Beatrice Samson, and that, immediately before and after such stealing did cut the said Beatrice Samson with a panga on her left hand in order to obtain and retain the said properties. The prosecution called four witnesses in support of its case, while the appellant testified as the sole witness for the defense. After hearing the evidence from both sides, the trial court found that the prosecution had adduced strong and cogent evidence sufficient to establish the charge against the appellant beyond a reasonable doubt. Consequently, the appellant was found guilty, convicted, and sentenced as indicated earlier. Dissatisfied with that decision, the appellant lodged an appeal before the High Court. His appeal was found with no merit, and accordingly, it was dismissed in its entirety. Still aggrieved, the appellant has now preferred this second appeal, advancing five grounds. First, there was a material discrepancy regarding the description of the properties alleged to have been stolen and their respective values as testified by the prosecution witnesses. Second, the conviction was improperly founded on unreliable visual identification evidence given by one of the prosecution's witnesses. Third, the prosecution's evidence was inconsistent, contradictory, tenuous, and lacked corroboration. Fourth, that the judgment of the trial court failed to set out the legal points for determination as required under section 312(1) of the Criminal Procedure Act, Cap. 20 R.E. 2019 (the CPA). Fifth, the prosecution failed to prove its case to the required standard of proof beyond a reasonable doubt. At the hearing of this appeal, the appellant appeared in person, unrepresented, while the respondent Republic was represented by Ms. Mary John Lundu and Ms. Monica Ndakidemi, both learned Senior State Attorneys. When called upon to amplify his grounds of appeal, the appellant opted to rely on his written submissions and urged the Court to adopt the same. He further requested the respondent to respond thereto, while reserving his right of rejoinder. 3 In his written submissions, the appellant, addressing the first ground of appeal, contended that, there was material variances between the items specified in the charge sheet, their respective values, and the total value thereof. He submitted that, the same inconsistencies were reflected in the evidence of the prosecution witnesses, who mentioned additional items alleged to have been stolen but which were not included in the charge sheet. The appellant particularly pointed out that, in the course of her testimony, PW1 mentioned the stolen items to include a mobile phone make Itel and a wallet containing TZS. 30,000.00, yet those items were not reflected in the charge sheet. He further challenged the valuation of the Techno mobile phone, arguing that, the value stated in the charge sheet differed from that given by PW1 in her testimony. According to the appellant, these discrepancies were material and could not be cured under section 388 of the CPA. He further argued that, once the variances between the charge sheet and the evidence of PW1 became apparent, it was incumbent upon the prosecution to seek amendment of the charge pursuant to section 234(1) of the CPA. In his view, failure to amend the charge sheet was fatal and had serious implications for the prosecution's case. In support of that submission, he relied on the decision in Masasi 4 Mathias v. Republic, Criminal Appeal No. 274 of 2009 (unreported). On the strength of those arguments, the appellant urged the Court to allow the appeal. Arguing further, the appellant submitted that there is a variance on where the offense was committed. That in the charge sheet it is indicated that the offense was committed at Mabibo Sokoni area, whilst the prosecution witnesses testified that it was at Mabibo NIT. In his view, the variance was material and raised doubt over the charge against him. On the second and third grounds of appeal, the appellant submitted that, his conviction was substantially based on the visual identification evidence of PW1. He contended that, although the alleged offence occurred during morning hours, the trial court appeared not to have fully believed PW l's evidence on visual identification. Referring the Court to page 11 lines 19 - 22, and page 45 lines 21 - 25 of the record of appeal, where PW1 testified that she encountered two young men and identified the appellant as the taller of the two, noting that he had a broken tooth. The appellant challenged the PW l's evidence on how she described him, contending that he had no broken tooth. He further submitted that the person to whom the incident was first reported was a material witness in this case. That the evidence of that person could corroborate PWl's testimony on what descriptions were given to him about the appellant. According to the appellant, it was surprising that the trial Magistrate rejected PW l's evidence concerning the identification of the co-accused yet relied on the same evidence to identify and convict him. In his view, such an approach amounted to applying a double standard in the evaluation of evidence of a similar nature. It was his further submission that, once the trial court entertained doubts regarding PW l's visual identification of the co-accused, the same doubts ought to have been extended in favour of the appellant. In support of that proposition, he relied on the authority of Dickson s/o Joseph Luyana & Another v. Republic, Criminal Appeal No. 1 of 2005 (unreported). Submitting on ground number four, the appellant submitted that, the record clearly shows that the trial court did not comply with the requirements of section 312(1) of the CPA in preparing its judgment. However, toward the conclusion of his submissions on this ground, the appellant appeared to depart from his earlier stance and conceded that 6 the first appellate court had, in fact, properly addressed and determined the complaint. On the last ground of appeal, the appellant argued that, in evaluating the evidence on record, the court erred in upholding the appellant's conviction and sentence based on a case that was not proved to the required standard. Premising on his submission, the appellant implored us to allow the appeal. In reply, Ms. Ndakidemi unequivocally stated that, the respondent does not support the appeal. In addressing the first ground of appeal, which alleges a material variance between the properties stolen and their respective values as described in the charge, she contended that the discrepancy in question constitutes not a variance perse, but rather an omission, given that all the enumerated items were indeed stolen. While conceding the existence of such a variance, the learned counsel maintained that the paramount consideration remains the undisputed fact of the theft of the specified items. She further emphasized that this error does not strike at the fundamental root of the case, as all the ingredients of the offense were fulfilled, thereby rendering it non prejudicial and insufficient to warrant interference with the lower court's decision. She argued that the alleged error can be rectified by section 411 of the CPA. To bolster her submission, she cited the cases of Majaliwa Gervas v. Republic (Criminal Appeal No. 608 of 2020) [2022] TZCA 471 and Shabani Said Ally v. Republic (Criminal Appeal No. 270 of 2018) [2019] TZCA 382. In response to the second and third issues, the learned Senior State Attorney submitted that the incident occurred in broad daylight. She argued that the victim and the appellant struggled over the bag for approximately ten minutes, a circumstance which, in her view, afforded the victim ample opportunity to clearly observe and identify the appellant. To reinforce her submission, she relied on the decision in Waziri Amani v. Republic [1980] TLR 250. Concerning the third ground of appeal, Ms. Ndakidemi contended that the evidence adduced by the prosecution was credible and was duly corroborated by the testimony of the medical doctor. On the last ground of appeal, the learned Senior State Attorney submitted that the High Court properly discharged its duty as a first appellate court by re-evaluating the evidence on record and arriving at its own independent conclusion. It was her firm position that the prosecution proved its case beyond a reasonable doubt. In support of 8 this submission, she cited the case of Gaudence Sangu v. Republic, Criminal Appeal No. 88 of 2020 [2022] TZCA 784. In a brief rejoinder, the appellant maintained that he had been arrested at the market and that one of the identifying features attributed to the assailant was a broken tooth, yet he did not have such a feature. We have carefully considered the rival submissions by both parties and examined the record of the two lower courts. The central issue for determination in our view is whether this appeal has merit. To start with the first ground of appeal, the nagging question in this complaint is whether the discrepancies between the items listed in the charge sheet and those mentioned in the testimony of PW1, as well as the difference in value of the items and location, amounted to a material variance capable of vitiating the conviction. Essentially, the appellant's complaint is rooted in the chargesheet, where it was alleged that the appellant did steal one mobile phone make Techno worth TZS. 25,000.00, one handbag valued at TZS. 30.000, one rasket bag worth TZS. 35,000.00, and a khanga worth TZS. 8.000.00. That all the properties were valued at TZS. 380,000.00. Nonetheless, it is on record of this appeal at page 12 that when she was testifying before the trial court, PW1 stated that, inside the bag, there were two mobile phones, Techno and Itel valued at TZS. 290,000.00 and TZS. 25,000.00 respectively. She also mentioned a wallet that had TZS. 30,000.00 and a khanga worth TZS. 8,000.00 and the bag itself, which was valued at TZS. 35,000.00. According to PW1, all those properties were stolen during the robbery. From the above piece of evidence, the appellant complained that there existed a variance between the chargesheet and the prosecution of evidence. He stressed that the first appellate court erred in upholding the conviction and sentence while those discrepancies were material; thus, amendment of the charge sheet was necessary. Admittedly, the first appellate judge held at page 114 of the record of appeal that the variance in the charge sheet and that of the prosecution witnesses is trivial in nature and does not go into the root of the case. We do not support this finding for the simple reason that the charge is the foundation of criminal case. Thus, it is incumbent on the prosecution to marshal evidence to support the particulars reflected in the charge sheet in order to prove the offense charged to the required standard in criminal cases. Equally, it is a settled principle of criminal law that a charge sheet must clearly and accurately state the 10 particulars of the offense to inform the accused person of the case against him. See, for instance, Mbaraka Elieneza Msangi v. Republic (Criminal Appeal No. 144 of 2023) [2025] TZCA 747, William Felix Kulaya & Another v. Republic (Criminal Appeal No. 522 of 2021) [2025] TZCA 283, and Faraja Kazimoto Tomas v. Director of Public Prosecutions (Criminal Appeal No. 63 of 2023) [2024] TZCA 301. Basically, as per the record of this appeal, it was PW1 who reported the matter to the police. That being the case, it is our considered view that what was recorded in the charge sheet emanated from what she reported. Therefore, the only duty owed by PW1 during the trial was to prove before the court what she reported and not to narrate new facts as if she was reporting the incident for the first time. However, the law, recognizing that variances may arise in the course of criminal proceedings, permits the amendment of a charge sheet under section 234(1) of the CPA. This provision is intended to accommodate any discrepancies revealed in the prosecution's evidence. The underlying purpose is to ensure that the accused person is tried on a proper charge and is given a fair opportunity to enter a defense thereto. li In the instant appeal, there is no doubt that there is variance in the items alleged to be stolen. What is listed in the charge sheet is less than the list of items mentioned by PW1 in her testimony. Unfortunately, there is no prayer for amendment effected by the prosecution's side to clear the anomaly. In its numerous decisions the Court reiterated the need to amend the charge and its impact. For instance, in Issa Mwanjiku @ White v. Republic (Criminal Appeal No. 175 of 2018) [2020] TZCA 1801 it held that: "As intim ated earlier, failure to amend the charge sheet is also fatal and prejudicial to the ap pellan tan d in our considered opinion , it is not curable under section 388 (1) o f the CPA." See also Yassin Abdallah v. Republic (Criminal Appeal No. 45 of 2024) [2025] TZCA 1169 and Manywa Thabit @Rama Bonge v. Republic (Criminal Appeal No. 648 of 2020) [2024] TZCA 723. On whether the variance in a charge sheet and the PW l's testimony on the stolen items is material, the Court in Godbless Eliufoo Urassa v. Republic (Criminal Appeal No. 145 of 2023) [2025] TZCA 735, held that: "Being guided by the above authorities, we entertain no doubt that in the instant appeal, 12 failure by PW1 to mention all the alleged stolen items had weakened the prosecution as the charge against the appellant was not proved beyond a reasonable doubt" As alluded to above, in the appeal at hand there was variance between the charge and the evidence on the items alleged to be stolen, their value, and even the location where the offense was committed. Thus, given the settled position of the law, we find that the failure by the prosecution to amend the charge sheet is fatal and prejudicial to the appellant; hence, the first ground of appeal has merit. Moving to the second and third grounds, where the appellant faulted the first appellate court's decision to uphold the conviction and sentence, while there was incredible visual identification, we have carefully considered the rival submissions and examined the record of appeal. Essentially, the law regarding reliance on visual identification evidence has been firmly settled. The Court has consistently cautioned that evidence of visual identification must be scrutinized with the greatest care because of the possibility of honest but mistaken identity. The Court emphasized that before acting on such evidence, a court must satisfy itself that the circumstances under which the identification was made were favorable and free from the possibility of error. See IB Waziri Amani v. Republic (Supra), Changa Changa Maheri & Another v. Republic (Criminal Appeal No. 317 of 2023) [2025] TZCA 1038, and Maguchi Julius Goryo & Others v. Republic (Criminal Appeal No. 430 of 2021) [2025] TZCA 388. In the present case, the conviction of the appellant was substantially based on the testimony of PW1 as the identifying witness. A careful reading of the judgment of the trial court shows that the learned trial Magistrate entertained doubts regarding PW l's ability to correctly identify the co-accused person and consequently acquitted him. However, the same evidence was relied upon to convict the appellant. When resolving this ground of complaint, the first appellate court stated that the appellant was identified as the offender because the offense was committed in sufficient daylight. The court went further to state that the scuffle between PW1 and the appellant took almost 10 minutes, and the appellant was well marked and had a broken tooth. Expounding further, the learned trial Judge stated that the appellant was arrested on 08/03/2022, just a day after the robbery, when PW l's memory was very fresh. In our considered view, we agree with the appellant's assertion that, once the trial court found the visual identification evidence 14 unreliable in respect of one of the alleged assailants, it was incumbent upon the court to exercise even greater caution before relying on the same evidence to convict the appellant. As alluded to, it is on record that the alleged offense was committed during the daytime. PW1 explained how he identified the culprits and explained the role played by each during the commission of the offense. Under those circumstances, the trial court had a duty to adequately address the distinguishing circumstances demonstrating a higher degree of certainty. The approach adopted by the trial court created the impression that the same evidence was selectively accepted and rejected without a clear and satisfactory justification. Therefore, it was an error for the first appellate court to uphold such a decision without there being distinguishing circumstances of record. Therefore, the second and third grounds of appeal have merit. On the fourth ground of appeal, the appellant faulted the first appellate court's decision, which cured the alleged defect in the trial court judgment. However, this complaint will not detain us as the same was cleared by the appellant himself. Now moving to the last ground, that the charge was not proved beyond reasonable doubt. Without much ado, we agree with the 15 appellant that the charge was not proved to the required standard. It is settled that, in order to prove a charge of armed robbery, the prosecution must establish all essential elements of the offense, which includes stealing and using actual violence or threats to any person in order to obtain and retain the stolen property. See, for instance, Nchangwa Marwa Wambura v. Republic (Criminal Appeal No. 44 of 2017) [2019] TZCA 459 and Dickson Joseph Luyana v. Republic (supra). In this appeal, as we demonstrated earlier, the prosecution evidence on stealing, which is among the fundamental elements in the offense of armed robbery, is wanting and leaves a reasonable doubt. In the same scenario there is variance of the items alleged to be stolen and their value. PW1 mentioned additional items, namely an Itel mobile phone and a wallet containing TZS. 30,000.00, which were not reflected in the charge sheet. There was also some discrepancy regarding the value of the Tecno mobile phone. Those variances cannot be regarded as trivial, as they touch the foundation of the prosecution's case and thus raise serious reasonable doubt as to the reliability and consistency of prosecution witnesses. Thus, the offense of stealing remains unproved against the appellant. Consequently, the offense of armed 16 robbery was not proved beyond reasonable doubt against the appellant. That said, we find the last ground to have merit. For the above reasons, we allow the appeal. The conviction of the appellant and the consequential sentence is hereby quashed and set aside. We order for the immediate release of the appellant from prison unless he is otherwise lawfully held. DATED at DODOMA this 26th day of March, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 27th day of March, 2026 via Video Conference, in the presence of the Appellant in person, Ms. Winiwa Kasala, State Attorney for the Respondent and Mr. Julius Kilimba, Court Clerk; is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 17 robbery was not proved beyond reasonable doubt against the appellant. That said, we find the last ground to have merit. For the above reasons, we allow the appeal. The conviction of the appellant and the consequential sentence is hereby quashed and set aside. We order for the immediate release of the appellant from prison unless he is otherwise lawfully held. DATED at DODOMA this 26th day of March, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L.E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 27th day of March, 2026 via Video Conference, in the presence of the Appellant in person, Ms. Winiwa Kasala, State Attorney for the Respondent and Mr. Julius Kilimba, Court Clerk; is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL