Yassin Abdallah vs Republic (Criminal Appeal No. 45 of 2024) [2025] TZCA 1169 (22 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: WAMBALI. J.A., KAIRO. J.A. And NANGELA. J.A.^ CRIMINAL APPEAL NO. 45 OF 2024 YASSIN ABDALLAH.................................................................... ....APPELANT VERSUS REPUBLIC ........... .................................................................RESPONDENT (Arising from the Decision of the High Court of Tanzania, Dar es Salaam Sub-registry at Dar es Salaam) (Luvanda. J.1 dated the 18th day of September, 2023 in Criminal Appeal No. 43 of 2023 JUDGMENT OF THE COURT 30th September & 22n d October, 2025 NANGELA. J.A.: This is a second appeal stemming from the decision of the High Court of Tanzania, at Dar-es-Salaam, delivered on 18/09/2023, upholding the appellant's conviction and 30-year prison sentence handed down by the District Court of Kinondoni in Criminal Case No. 318 of 2021, on a charge of armed robbery under section 287A of the Penal Code, Cap. 16. The particulars of the charge indicated that on 20/08/2021, in the Kigogo Mkwajuni area of Kinondoni District, Dar-es-Salaam Region, the appellant attacked Paul Ndunguru (who testified as PW1) and, from him, stole a Tecno mobile phone valued at 200,000.00, along with TZS 250,000.00 in cash. It was also alleged that the appellant used a knife to i harm PW1, both before and after committing the theft, in order to gain and keep possession of the stolen items. Upon the appellant's subsequent arrest and arraignment in court, he denied the charge, resulting in a full trial. To prove the charge, the prosecution summoned five witnesses namely: the victim (PW1), Shabani Selemani Mwinchande (PW2), H.9432 D/C Japhet Lameck Ngobile (PW3), Stella Kivugu (PW4), H.8310 D/C Muro (PW5), and tendered one document, a PF3, which was admitted as exhibit PI. On the other hand, the appellant, who appeared before the trial court unrepresented, testified under oath as DW1, without calling any additional witness to aid his case. According to the appellant, he was arrested by the local militia personnel, commonly known as "Sungusungu" on the 20/8/2021, at around 9.00hrs, while on his way home, returning from his business. Further, that, upon being arrested the said "Sungusungu" took from him TZS 300,000.00 and his Sumsung Galaxy A7 Make Phone. It was his further defence that, upon soliciting money from him unsuccessfully, the said "Sungusungu" resorted to the handing him over to the Police station where upon he was remanded in custody and later briefly released after his mother paid some TZS 50,000.00. However, upon asking for the money which he was found with when he was arrested, his brief release was overruled, leading to his further remand as 2 a suspect before later being charged on the 22/10/2021 with the offence of armed robbery. As we intimated earlier, having assessed the entire evidence, the trial court eventually found the appellant guilty of the offence he was charged. Consequently, he was convicted and sentenced to 30-years imprisonment and, the conviction and sentence, were subsequently upheld by the High Court in an unsuccessful appeal. Aggrieved by the decision of the High Court, the appellant has now approached the Court by way of an appeal. In his memorandum of appeal, the appellant raised five grounds. However, for the sake of clarity and logical sequencing, the Court has deemed it appropriate to paraphrase and compress into for grounds. Accordingly, the grounds of appeal have been reorganized as follows: first, is the complaint that there was a variance between the charge and the supporting evidence, a fact which the first appellate court failed to consider; second, that, both lower courts failed to draw an adverse inference against the prosecution for failing to call as material witnesses, the Street Chairperson and one Shabani Mayuka; third, that, the first appellate court erred in law and fact by upholding the conviction based on unreliable visual identification by PW1 and PW2, who were themselves members of a local militia known as "Sungusungu"; and fourth, that the alleged offence was not proved beyond reasonable 3 doubt. For reasons that will be made apparent later herein, our deliberation will start by considering the first ground of appeal as reorganized. In terms of representation at the hearing of this present appeal, the appellant appeared in person, unrepresented. Before addressing the Court, the appellant sought leave to present his case by way of written submissions and, requested that a document containing those submissions be admitted for the Court's consideration. We granted both requests and accordingly received the appellant's written submissions, which we shall duly consider in the course of analysis and determination of this appeal. On the other hand, Mr. Clemence Kato, learned Senior State Attorney, appeared, representing the respondent Republic. When Mr. Kato took the floor to address the Court, he opposed this appeal. The totality of Mr. Kato's argument in respect of the above noted first ground of appeal was that the alleged variances between the charge and the evidence were immaterial. His reasoning was essentially pegged on three parameters. First, was Mr. Kato's submission that both PW1 and PW2, being eyewitnesses to the incident, had identified the appellant at an early stage as one of the individuals who attacked and robbed PW1. Second, was his contention that the testimony of PW4, coupled with exhibit PI, corroborates the fact that PW1 sustained injuries, thereby indicating the use of a weapon during the commission of the offence; and, third, was his resolve that the appellant neither suffered nor could he have suffered any prejudice as a result of the alleged variances. According to Mr. Kato, those were 'minor inconsistencies/ Concerning the fourth ground of appeal, Mr. Kato maintained that the prosecution discharged its burden of proof to the requisite standard and, consequently, this appeal should be dismissed. Generally, the appellant offered little by way of substantive rejoinder, save that, he reiterated his earlier plea that his grounds of appeal and submissions be duly considered, his conviction and sentence be quashed, and that he be set at liberty. We have carefully considered the appellant's written submissions as well as Mr. Kato's oral submissions. In addition, we have undertaken a thorough examination of the record of appeal as placed before us. However, prior to engaging with the merits of the respective arguments, it is pertinent to underscore, as previously observed, that this appeal comes before us by way of a second appeal. It is trite law that on a second appeal, this Court is generally precluded from interfering with concurrent findings of fact made by the two lower courts. Nonetheless, an exception to that rule arises where such findings are demonstrably perverse, unreasonable or plainly occasion a miscarriage of justice. Interference is also warranted where it is shown that there has been a misapprehension of the evidence or a departure from settled principles of law. Various decisions of this Court, including Jafari Mohamed v. Republic (Criminal Appeal No. 112 of 2006) [2013] TZCA 344 (15 March 2013); Said Hamisi Mchanjama v. Republic (Criminal Appeal No. 390 of 2022) [2024] TZCA 449 (12 June 2024); and Mohamed Said v. Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019 (all from TanzLII), have reiterated the above noted principle. Guided by those authorities, we now turn to consider the parties' respective submissions in light of the grounds of appeal, as previously rephrased and rearranged herein above. As we earlier observed, we shall, in the first instance, address the first and fourth grounds of appeal together. We have elected to do so because the two grounds are interrelated and, if found to have merit, are sufficient to dispose of the entire appeal. The complaint in the appellant's first ground of the appeal is that the evidence adduced by the prosecution was materially at variance with the particulars of the offence as set out in the charge sheet. It is the appellant's submission that this inconsistency ought to have been identified and addressed by the first appellate court. Specifically, the appellant argues that, whereas the charge sheet alleges he used a knife to cut PW1 in the course of committing the offence of armed robbery, PWl's testimony diverges significantly. He notes that, according to PW1, the appellant, acting in concert with three unidentified accomplices who remain at large, merely threatened him with a knife before robbing him of his property. Based on such variances he submitted that the charge remained unproven. The appellant relied on the decision in John Leon Kimario vs. Republic (Criminal Appeal No. 105 of 2012) [2024] TZCA 404 (6 June 2024 TanzLII) in support of his argument, maintaining that the discrepancy between the charge and the prosecution's evidence raises reasonable doubt as to whether the offence of robbery, as charged, was committed. As previously noted, although Mr. Kato conceded that there were discrepancies between the particulars stated in the charge sheet and the testimonies of PW1, PW2 and PW3, he sought to downplay the significance of such variances and, relying on the decision in Khalid Rafii Mohamed v. Republic (Civil Appeal No. 398 of 2021) [2023] TZCA 17753 (11 October 2023 TanzLII), he characterized them as being inconsequential. From Mr. Kato's submissions, however, the question that crops up for our attention is whether there were variances between the particulars of the charge and the evidence and, if so, whether such variances were material and, therefore fatal. Essentially, while we affirm the position which the Court adopted in Khalid Rafii Mohamed (supra) and, thus, appreciative of Mr. Kato's submissions, as far as the facts of this case are concerned and, for reasons that shall become apparent shortly, we respectfully consider the said case to be distinguishable from the present appeal. We hold that view because, in Khalid Rafii (supra) the alleged discrepancy was only one in relation to the manner in which the alleged dangerous weapon was used against the victim. In evaluating the same in light of the circumstances of that appeal, the Court was of a considered view that such a variance was minor and non-prejudicial to the appellant. In contrast, our careful examination of the record of appeal does evidently reveal significant multiple discrepancies, not only between the particulars set out in the charge sheet vis-a-vis the testimonies of PW1, PW2, PW3 and PW4 as presented during the trial, but also in relation to the correct naming and particulars of the appellant. Such multiple variances, in our view, cannot, as we shall shortly demonstrate here below, be regarded as immaterial and non-prejudicial to the appellant. The first notable discrepancy concerns the number of individuals alleged to have attacked PW1. According to the charge sheet, there is no indication that the offence for which the appellant was charged was committed in concert with other persons not before the Court. Instead, the charge sheet clearly attributes the commission of the offence solely to the appellant. However, both PW1 and PW2 testified that the appellant carried out the attack in the company of three other young men. In contrast, PW3, the arresting officer, stated that he was contacted by PW1 via telephone, during which PW1 reported that the appellant had attacked him and stole his properties. According to PW3's testimony, the attacker was only the appellant and not him in concert with other persons. But the second notable variance relates to the nature of the alleged injury sustained by PW1. According to the particulars outlined in the charge sheet, the appellant allegedly used a knife to inflict a cut wound on PW1 while attempting to obtain and retain the properties that had been stolen from PW1. However, in their oral testimonies, both PW1 and PW2 stated that the appellant merely threatened PW1 with a knife, without mentioning any actual physical injury caused by it. In contrast, PW4, the medical officer who filled the PF3 issued to PW1 for medical examination and which was admitted into evidence as exhibit PI, testified that PW1 presented himself to her with bloodstains on his clothing, along with a wound and bruises on his face. In exhibit PI, PW4 described the injuries as comprising a " superficial wound' and "bruises," and opined that the injuries were caused by both a sharp and a blunt object. She observed in exhibit PI further, that, PW1 had been " assaulted by a gangster mob and got injured." Notably, however, neither PW4's testimony nor the contents of exhibit PI provide specific details concerning the severity and the kind or depth of the wound, apart from characterizing it as merely " superficial7 9 The third final point pertains to the discrepancy between the personal particulars stated in the charge sheet and those given by the appellant during trial. While the charge sheet identifies the accused as YASSIN ABDALLAH* aged 28, the court record indicates that, upon taking the stand in his defence as DW1, the appelfant testified under oath that his full name is YASSIN ABDALLAH KASANJALE and that he is 32 years old. Essentially, it is a fundamental principle of criminal procedure that the accurate identification of a person implicated in a crime, like the appellant in this appeal, including the correct recording of his or her personal particulars such as his/her names and age on the charge sheet, is essential not only to establish their proper identity but also to safeguard against the risks of wrongful conviction. In the present appeal, a review of the record of appeal discloses that at no point was the appellant cross-examined concerning the apparent discrepancy between his name and age and the particulars stated in the charge sheet. Moreover, there is no indication that the charge sheet was ever amended to reflect his correct personal details. While Mr. Kato regarded these, and the rest of the anomalies pointed out earlier on as immaterial, we are unable to adopt his opinion. It is a fundamental principle of criminal jurisprudence that the particulars set out in the charge sheet must correspond with the evidence adduced by the prosecution at trial. See the case of Peter Ndiema and Another v. 10 Republic (Criminal Appeal No.469 of 2015) [2018] TZCA 683 (3 July 2018, TanzLII). The above noted decision and the principle advocated therein was followed in John Leon Kimario v. Republic (Criminal Appeal No. 105 of 2021) [2024] TZCA 404 (6 June 2024, TanzLII). The principle enshrined in those precedents is not without rationale: it is grounded on the foundational role of a charge sheet in not only defining the nature of the alleged criminal offence, but also safeguarding the right to a fair trial, thereby averting possible wrongful convictions amounting to miscarriages of justice. In emphasizing on the necessity of a properly drawn charge, and, for that matter the reason why the prosecution needs to be careful in ensuring its alignment with the evidence on record, the Court stated, in Peter Ndiema and Another v. Republic (supra), that: na charge is the document which initiates crim inai proceedings against an accused person. It is from the particulars o f the charge wherein the prosecution is caiied upon by the court to tender evidence in establishm ent o f the offence alleged to have been com m itted by the accused person. In the same vein , it is from the particulars o f the charge, in which the accused person is required to defend him self." li In that above cited decision, the Court, made reference to its other previous decision in Leonard Raphael and Another v. Republic, Criminal Appeal No. 4 of 1992 ( unreported ), and drew the attention of all prosecutors and those who preside over criminal trial to fact that: " when, as in this case, in the course o f trial, the evidence is a t variance with the charge and discloses an offence which is not la id in the charge, they should invoke the provisions o f section 234 o f the Crim inal Procedure A ct 1985, and have the charge amended in order to bring it in line with the evidence." We are mindful, based on the revised version of the Criminal Procedure Act, [Cap. 20 R.E.2023] (the CPA), that, section 234 of the CPA should now be cited as section 251. However, the point we wish to make is that the discretion to amend a charge where there exists a clear variance between it and the evidence adduced at trial, as is the case in the present appeal rests with the prosecution. Even so, while the leave to effect such an amendment ought to have been sought from the court before the conclusion of the trial proceedings, the record placed before us does unequivocally show that the prosecution took no steps to reconcile the material inconsistencies pointed out above. What, then, is the legal effect of such prosecutorial inaction? As a matter of legal principle, where a charge is materially inconsistent with the evidence adduced in support of it, and no formal amendment is made, the inevitable conclusion is that the charge has hot been proven. This legal position finds firm support from precedents of the Court, including Abel Masikiti v. Republic (Criminal Appeal No. 24 of 2015) [2015] TZCA 500 (24 August 2015); Manywa Thabit @ Rama Bonge v. Republic (Criminal Appeal No. 648 of 2020) [2024] TZCA 723 (14 August 2024); and more recently, Petro Mlongo and 2 Others v. Republic (Criminal Appeal No. 271 of 2022) [2025] TZCA 142 (28 February 2025) (all from TanzLII). In principle, therefore, such prosecutorial inaction namely, the failure to amend a charge to cause it to be consistent with evidence on record is also fatal to the prosecution's case. In Manywa Thabit @ Rama Bonge (supra), the Court expressly held that in such circumstances the accused is entitled to an outright acquittal, as failure to do so would amount to a miscarriage of justice. As already pointed out, the record of appeal before us is evident that the glaring variances between the charge and the evidence presented at trial were never addressed by way of an amendment under section 234 (1) currently section 251 (1) of the CPA. For that matter, the legal implications of such prosecution's inaction, as discussed in Abel Masikiti (supra), Petro Mlongo (supra) and 13 Manywa Thabit @ Rama Bonge (supra), are unavoidable. That is to say, the prosecution side will be found to have failed to prove the charge against the appellant to the requisite standard, and, consequently, the appellant will be entitled to an outright acquittal. From the foregoing deliberation, it is our conclusion that the appellant's first ground of appeal is meritorious. We now turn to the fourth ground of appeal. Essentially, our findings on the first ground of appeal are directly relevant to the fourth ground of appeal. On that fourth ground of appeal, the appellant's complaint is that the prosecution's case was not proved to the required standard. In his submissions, Mr. Kato, nevertheless, urged a contrary view, asserting that the evidence on record in this appeal established the prosecution's case beyond reasonable doubt. Having given careful consideration to his argument and having regard to our findings on the first ground of appeal, we are unable to accept this submission. In our view, the appellant's fourth ground of appeal is likewise well-founded. Once it is held that the charge has not been proved, it necessarily follows that the entire case against the appellant falls short of the standard of proof required by law, that is, proof beyond reasonable doubt. Because the above deliberations and findings regarding the first and fourth grounds of appeal are sufficient to dispose of the instant appeal, we find it unnecessary to consider the remaining grounds. To that end, 14 we allow the appeal, quash the appellant's conviction and set aside the sentence meted out against him by the trial court and confirmed by the first appellate court. Consequently, we order that the appellant be released from custody forthwith unless his remaining in custody is founded on other lawful causes. DATED at DAR ES SALAAM this 17th day of October, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered virtually this 22n d day of October, 2025 in the presence of the Appellant in person, Ms. Grace Kibaki, learned State Attorney for the Respondent/Republic and Ms. Rehema Makakala, Court clerk, is hereby certified as a true copy of the original. A. L. Kalegeya DEPUTY REGISTRAR COURT OF APPEAL 15