Raymond Omary Macha vs Republic (Criminal Appeal No. 394 of 2024) [2026] TZCA 329 (19 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CORAM: MWARI3A J.A. KENTE J.A. And MURUKE, 3.A.) CRIMINAL APPEAL NO. 391 OF 2024 RAYMOND OMARY MACHA.......................................................APPELLANT VERSUS THE REPUBLIC ........................... . ........................... . ......... RESPONDENT (Appeal from Decision of the High Court of Tanzania at Dar es Salaam) f Philip. J.) dated 6th day of February, 2024 in (Criminal Appeal No. 109 OF 2023) JUDGMENT OF THE COURT 17th February & 19th March, 2026 MURUKE. 3.A.: The appellant, Raimond Omary Macha, challenges the concurrent findings of the two lower courts bellow, namely the High Court, and the District Court of Temeke on a charge of armed robbery. The trial court, upon being satisfied with the prosecution evidence, convicted and sentenced him to 30 years imprisonment. The trial court's conviction and sentence was upheld by the first appellate court, hence the present appeal. The allegations against the appellant was that, on 27th day of November,2021 at Chang'ombe Veta area, within Temeke District in Dar es Salaam Region, he stole one motor- cycle with registration number MC 575 CUX, i from Said Mohamed Shomari, belonging to Awesa Bakari Mtani. It was particularized that, at the time of stealing, the appellant used actual violence by hitting PW3 with a piece of iron bar and a machete in order to obtain and retain the motorcycle. The brief background of the matter was told by PW3, the victim of the armed robbery. On 27 November, 2021 at Mbagala Kwa Mpiji Machinjioni, PW3, was riding a motor-cycle with registration number MC 575 CUZ, Mark- Boxer, black in colour, the property of PW1, Awesa Bakari Mtani. He was stopped by the appellant to take him to Uchumi traffic lights, at a cost of TZS 10,000. PW3, heeded to the appellant's request. However, when they reached at Uchumi traffic lights, all of sudden, another motorcycle arrived at the area, carrying three persons. They immediately invaded him and cut him with a machete while the appellant and three persons, pushed PW3 from the motorcycle. This was followed by the appellant instructing his co culprits to kill PW3 in a similar manner they killed one of their victim's the previous day. PW3, managed to escape and with the assistance of good Samaritans he was rushed to hospital for treatment, while the appellant and his co- culprits disappeared with the motor cycle. Later, PW3 was informed that the motorcycle had been recovered. Subsequently, the appellant was arrested and charged accordingly. Before the trial court, the appellant denied the charge laid against him. In a bid to prove their case, the prosecution side summoned three witnesses 2 namely: Awesa Bakari Mtami, (PW1), F.8588, Detective Copral Rajabu (PW2), and Saidi Mohamed (PW3). Moreover,the prosecution tendered three exhibits namely; Motorcycle with registration card No 87213400 (exihibitPl) Motorcycle registration card Number MC575 CUZ (exhibit P2) and certificate of seizure (exhibit P3). The appellant was the only witness to his defense case. After full trial, the appellant was convicted and sentenced to imprisonment of 30 years. PW1 testified that she purchased motorcycle registration number MC 575 CUZ on 05 March 2021 and gave it PW3 to ride. On 27 November 2021, the motorcycle was allegedly stolen while being operated by PW3. PW2, D/CPL Rajabu (Investigating Officer) testified that the appellant was arrested by members of the public at Buza while in possession of the said motorcycle. He tendered the motorcycle as Exhibit PI, and the certificate of seizure as Exhibit P2. However, the civilians who allegedly effected the arrest were not called as witnesses during trial. The victim (PW3), Said Mohamed Shomari, who was driving the said bodaboda exhibit PI, testified that the appellant hired him at Sabasaba kwa Mpili for a fare of TZS 10,000/= to Uchumi Traffic Lights. Upon arrival, three armed men allegedly emerged with machetes and robbed him of the motorcycle. According to PW3, the appellant joined the assailants during the robbery. He stated that the appellant had been his passenger for approximately 20 minutes prior to the incident. In his defense, the appellant denied the charge. He maintained that he was arrested for a different alleged offence and that the investigation officer fabricated the robbery case following a misunderstanding. The trial court having heard the evidence of both sides, relied on the visual identification by PW3 and the doctrine of recent possession, on the basis that, the appellant was allegedly found in possession of the stolen motorcycle to ground a conviction. The High Court upheld these findings on appeal, thus the present appeal. The appellant has raised 10 grounds, which boils down in to four issues namely: one, whether the appellant was properly identified for the court to rety on the evidence of visual identification to ground conviction, two; whether the principle of recent possession and chain of custody were established, three; whether there was prior description of the stolen property, four; whether the offence was proved beyond reasonable doubt. At the hearing, the appellant appeared in person, unrepresented whereas Ms. Clemence Kato, Senior State Attorney assisted by Ms. Roida Mwakamele and Ms. Winfrida Ouko, both State Attorneys, represented the respondent/Republic. When the appellant was invited to amplify on his grounds of appeal, he prayed to adopt them and the submission, then let the learned Senior State Attorney submit first, while reserving his right to respond later. He implored the Court to consider and allow all the grounds of appeal, quash the conviction and set aside the sentence. 4 To start with the first issue, it is apparent that the conviction rests significantly on the visual identification evidence of PW3. The learned Senior State Attorney submitted that, the PW3 spent time with the appellant and he did not cover his face. More so, PW3 identified the appellant in the identification parade, thus, the evidence of PW3 on identification was strong, the appellant's complaint on identification is without merits, insisted the respondent counsel who pressed for the appeal to be dismissed. The law is settled, that evidence of visual identification must be examined with extreme caution, particularly where the identification occurred at night. In Waziri Amani v. Republic [1980] TLR 250, the Court underscored that the courts must scrutinize identification evidence carefully to eliminate the possibility of mistaken identity. As said earlier, evidence of visual identification of PW3 was the basis of the conviction. PW3 stated that there was "enough light" from traffic lights and tube lights. However, one; the record does not disclose the intensity of the light, the proximity of the light source, or whether the lighting conditions were sufficient to permit accurate identification. The Court in Issa s/o Mgara @ Shuka v. Republic (Criminal Appeal No. 37 of 2005) [2008] TZCA 112 insisted on the need to explain on the intensity of light. The Court stated that; "In our settled minds, we believe that it is not sufficient to make bare assertions that there was light at the scene o f the crime. It is common knowledge that lamps be they electric bulbs, fluorescent tubes, hurricane lamps, wick 5 lamps, lanterns etc. give out light with varying intensities. T Definitely, light from a wick lamp cannot be compared with light from a pressure lamp or fluorescent tube. Hence the overriding need to give in sufficient details the intensity o f the fight and the size o f the area illuminated." Two; the record does not support the claim that PW3 knew the appellant well before the incident and was for that matter not a stranger. Three; there was no identification parade conducted for PW3 to recognize the appellant as the appellant was a stranger to him. Four; the evidence on record, does not suggest that PW3, gave a description of the appellant before the dock identification in terms of their attire, height, complexion or any other peculiar features, if any. It is settled law that the identification of accused persons by a witness in the dock for the first time, cannot be given credence without corroborative evidence of identification parade. See Siyoi Wilson Nicodemus & Others v. Republic (Criminal Appeal No. 42 of 2022) [2023] TZCA 17331. In such circumstances, the appellant was not properly identified, thus, weakens the prosecution case. The second issue for considerations is whether the reliance on the doctrine of recent possession by the two lower court below was proper. The respondent counsel submitted briefly that the two exhibit PI and P2 were tendered and received without objections. Exhibit PI was found with the appellant by civilians who arrested him and reported to Chan'gombe Police Station. A complaint by the appellant is without merits, argued Ms. Katto for the respondent. Having heard both parties' submission on this issue, it is worth noting that for the doctrine of recent procession to apply, the prosecution must establish one, that the property belonged to the complainant; two; that it was recently stolen; three; that it was found in the exclusive possession of the accused; and four; that the accused offered no reasonable explanation to account for the possession The prosecution evidence is that, PW1, alleged to be the owner of exhibit PI, the same said to have been stolen while being ridden by PW3. According to the record, there is no sufficient evidence proving that it was found in possession of the appellant. PW2 testified that the appellant was arrested with exhibit PI by civilians who took him to the police station. However, the alleged arrest was effected by civilians who were not called to testify. Only PW2 testified that he received the appellant from civilians civilia. In our views, failure to call the arrestors to testify, breaks the chain linking the accused to the recovered property, exhibit PI. In Marwa Chacha @ Robare v. Republic (Criminal Appeal 133 of 2020) [2022] TZCA 325 (9 June 2022), the Court emphasized that omission to call material witnesses, particularly those were involved in arrest. Therefore, under the circumstance of this case, the doctrine of recent possession cannot safely apply where possession is not proved through reliable and direct evidence. As regards the third issue of prior description if exhibit PI, the respondent counsel submitted that, while PW1 the owner was tendering exhibit PI, same was not objected to by the appellant, thus, correctly relied on by the trial and the first appellate court. It is our understanding of the law that, before an exhibit is shown to a witness for identification, the witness must provide a prior description of the stolen property. In the case of Kirajagaye s/o Joackim and Another vs Republic (Criminal Appeal No. 289 of 2010) [2014] TZCA 2211, the Court held that failure to obtain a prior detailed description (including special marks) renders reliance on such identification unsafe. In the matter at hand, PW1 identified the motorcycle at the trial court without first giving a detailed prior description of distinguishing features. We find that, this procedural irregularity weakens proof of ownership and undermines the application of the doctrine of recent possession. The last issue for consideration is variance of the scene of crime in terms of the charge sheet and the evidence of PW3, the victim of the robbery. The appellant in his written submission insisted that the charge sheet state that the offence was committed at Veta area, whereas PW3 testified that the offence took place at Uchumi a place not mentioned in the charge sheet. He cited the 8 case of Ahmada Mussa Ntimba and another v. Republic [1998] T.L.R 268, in which the Court insisted on the duty of the prosecution to prove their case. In response, the learned Senior State Attorney submitted that, PW1, PW2 and PW3 both proved the offence charged against the appellant. Regarding this issue, it is without dispute that there are discrepancies as regard the scene of crime between the charge and the evidence. The charge sheet at page 1 of the record refers to Chang'ombe Veta area where as PW3 at page 34 of the record the victim testified that robbery occurred at Uchumi Traffic lights. These are two distinct locations and there is no any amendment of charge that is reflected on the records. When the charge sheet is at variance with the evidence as to the place of the commission of the offence, it is a serious anomaly to the prosecution case. The Court in the case of Noel Gurth Bainth & Another v. R, Criminal Appeal No. 339 of 2013 (unreported), as cited in the case of Hassan Mohamed Chuwa v. Republic (Criminal Appeal No. 346 of 2021) [2024] TZCA 774 observed that: "... where there is a variation in the place where the alleged armed robbery took place, then the charge must be amended forthwith. I f no amendment is effected, the charge will remain unproved and the accused shall be entitled to an acquittal as a matter o f right short o f that a failure o fjustice will occur . " It is our finding that in the present case, there was discrepancy of the scene of crime between the charge and evidence of the prosecution witnesses. We understand that this is a second appeal. It is a settied position of the law that, the Court will not interfere with concurrent factual findings of the courts below, unless there has been misapprehension of the nature and quality of the evidence occasioning miscarriage of justice. In the case at hand, we have found and hold that evidence on record did not prove beyond reasonable doubt that, One; that the appellant, was identified by recognition at the scene of crime. Because of the fact that the incident took place at night, it was necessary for the prosecution to bring evidence explaining the factors that favored accurate identification of the appellant. Such evidence is not on record. Two, as earlier noted, PW2 said the appellant was arrested by the civilians and taken to the police station with the motor cycle exhibit PI, yet none of the civilians testified to that effect. As to the issue as to whether the appellant was found with the motorcycle, the record does not support that fact. Three; PW1 did not give prior description of the motorcycle said to have been stolen before the trial court as the owner. That renders the identification of the same irregular. In totality, the two courts below misapprehended the evidence of PW1, PW2, and PW3 on the proof of the alleged offence against the appellant, that entitles us to interfere with the concurrent findings of the two lower courts. For the above reasons, the appeal is hereby allowed. We quash the conviction and 10 set aside the sentence imposed on the appellant. The appellant be set at liberty unless he is held for any other lawful cause. DATED at DODOMA this 18th day of March, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE 1USTICEOF APPEAL The Judgment delivered this 19th day of March, 2026 in the presence of appellant in person, unrepresented and Ms. Monica Ndakidemi, learned Senior State Attorney for the respondent/Repubiic connected via Virtual Court from Dar es Salaam and Ms. Tabitha Mwita, Court Clerk, is hereby certified as a true copy of the original.