Shedrack Simon & Another vs Republic (Criminal Appeal No. 187 of 2023) [2025] TZCA 1119 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: SEHEL. J.A.. MAKUNGU, 3.A. And FELESHI, J J U CRIMINAL APPEAL NO. 187 OF 2023 SHEDRACK SIM ON.................................................................... 1 st APPELLANT JULIUS SIMON...........................................................................2 nd APPELLANT VERSUS THE REPUBLIC ............................................................................. RESPONDENT (Appeal from the Decision of the Court of Resident Magistrate of Manyara at Babati) (Lusewa, PRM- Ext. Ju rist dated the 27th day of September, 2022 in RM Criminal Appeal No. 5 of 2022 JUDGMENT OF THE COURT 30th September & 15th October, 2025 FELESHI, 3.A.: The appellants, Shedrack Simon and Julius Simon, were charged, tried, convicted, and sentenced to thirty years imprisonment by the Kiteto District Court sitting at Kibaya (the trial court) for the offence of armed robbery contrary to section 287A of the Penal Code, Chapter 16 (the Penal Code). It was alleged that on 20.10.2019 at Nalang'tomoni area, Ilera Village, within Kiteto District, they stole TZS. 1,860,000.00 from one Abeli s/o Charles and immediately before or after the time of i

such stealing, they assaulted him on his head and left arm using a blunt object. The appellants pleaded not guilty. As aforesaid, they were both convicted and sentenced to thirty years imprisonment. Briefly, the evidence that based the appellants' conviction and sentence was that, on 20.10.2019, Abeli Charles, the complainant (PW1) was assaulted by the appellants who went to his shop at 2:45pm whilst armed with a small axe and a piece of iron bar which they used to hit him on his head and hand. The assailants then took from his pocket TZS. 1,860,000.00. The incident was witnessed by PW l's wife, Jemima Jackson (PW3) and Adamu Kizuri (PW2). A solar light illuminating the shop and outside the house, helped PW1, PW2 and PW3 to recognize the appellants who were known to them before. Further evidence was to the effect that, following the arrival of PW2 and other people who responded to PW3's alarm, the appellants flew away leaving PW1 in bad condition. PW2 sent PW1 to Kibaya Police Station where he was issued with a PF.3 and they went to the hospital where Dr. Edward Edwin (PW5) dressed his wounds on the head and right hand. He then filled PF.3 which PW1 tendered at the trial and was admitted in evidence as exhibit PI. The appellants were arrested by PF. 19290 A/Insp. Charles Mwenda (PW4) on 28.10.2019 at 5:00am while at Mkoka Kongwa District. PW4 saw one having a wound

on his head while the other had a wound on his hand. He later handed them to H. 8618 PC Augustino (PW6) on the same day, who took them back to Kiteto Police Station and they were arraigned before the trial court on the following day, that is, on 29.10.2019. During defence hearing, the appellants raised an alibi, claiming that on the fateful day they were away from Ilera Village. They called their mother who testified as D W li and DW2i respectively, that on 17.10.2019 she had sent appellants to their aunt's home at Mkoka Village. The trial court rejected this defence, as it found it unsubstantiated and, as aforesaid, it convicted and sentenced them accordingly. Aggrieved by the trial court's decision, the appellants preferred Criminal Appeal No. 11 of 2022 to the High Court against both the conviction and sentence. Their appeal was later transferred to the Court of Resident Magistrate of Manyara exercising extended jurisdiction (the first appellate court) where it was registered as RM. Criminal Appeal No. 5 of 2022 and was assigned to Lusewa, Principal Resident Magistrate (PRM) with Extended Jurisdiction. The first appellate court found the PF3 (Exhibit PI) was wrongly admitted and expunged it from the record. Notwithstanding, it found the remaining evidence, recapitulated above, had proved the prosecution's case beyond

reasonable doubt. It thus dismissed the appellants' appeal and upheld the trial court's decision. Still aggrieved, the appellants filed this appeal on eleven grounds of appeal in the memorandum of appeal and two grounds in the supplementary memorandum of appeal. The thirteen grounds of appeal essentially revolve around two core complaints: one, that the prosecution case was not proved beyond reasonable doubt; and two, that there was miscarriage of justice because the appellants lacked a legal representation. At the hearing of the appeal, the appellants appeared in person, unrepresented, whereas the Respondent, Republic was represented by Messrs. Raphael Rwezahula, Jackson Mayeka, and Michael Martine, all learned State Attorneys. The second appellant, Julius Simon, argued the appeal on behalf of both appellants. On the first complaint, he forcefully submitted that the evidence of identification in relation to the charged offence was weak and insufficient. That, though PW1, PW2 and PW3 testified that they knew the appellants as fellow village mates, none mentioned their names to the police at the earliest opportunity. He cited the cases of Marwa Wang'iti Mwita and Another v. The Republic [2002] T.L.R. 39 and Anold Elia Fikiri v. The Director of Public

Prosecutions (Criminal Appeal 333 of 2018) [2021] TZCA 491 to underscore the legal requirement of naming the suspects at the earliest possible time. He further challenged the sufficiency of solar light used to identify the appellants, arguing that no details were given as to its intensity or sufficiency. He relied on Samsom Chacha @ Mwita Pius @ Kipepeo v. Republic (Criminal Appeal No. 76 of 2018) [2022] TZCA 415, Hassan Said v. Republic (Criminal Appeal No. 264 of 2015) [2016] TZCA 322 and Agnes Nyamuhanga v. Republic (Criminal Appeal No. 341 of 2018) [2022] TZCA 465 to support his contention that failure to describe suspects7attire or physical features undermines credibility. Moreover, the second appellant submitted that there is a material contradiction between the charge sheet which refers to a "blunt object" while the testimonies of PW1, PW2 and PW3 mentioned a small axe, an iron bar and a stick. He contended that this variance is fatal, citing a decision in the case of Killian Peter v. Republic, Criminal Appeal No. 508 of 2016 (unreported) to bolster his argument. He also challenged the two courts below for not considering their defence evidence, particularly their a lib i contending that their conviction finally based on defence weakness rather than the strength of the prosecution case. 5

On the second complaint, he contended that there was a miscarriage of justice because they did not have legal aid, something that placed them at a disadvantage against the prosecution's counsel. However, when probed by the Court he conceded that they had not applied for the requisite legal aid. At the end, the appellants maintained that the prosecution case was not proved to the hilt and implored the Court to allow their appeal. In reply, Mr. Raphael Rwezahula, the learned State Attorney, opposed the appeal and supported the appellants' conviction and sentence. He strongly objected to the appellants' first complaint and submitted that all the ingredients of armed robbery were proved beyond reasonable doubt. He contended that P W l’s evidence was clear and consistent that he was attacked by the appellants who were known to him before and he recognized them aided by the solar light. That, the appellants stole money from his pocket after assaulting him. He argued that this evidence was corroborated by PW2 who found the appellants at the scene and PW3 who witnessed the initial attack and raised an alarm. Specifically on identification, Mr. Rwezahula argued that this was a case of positive recognition of persons known to PW1, PW2 and PW3, a recognition which was fundamentally and more reliable than that of 6

identification made to strangers. Regarding the contradiction on the weapons used he submitted that an iron bar and an axe are quintessential "blunt objects" and the variance, if any, was not material. He relied on Mwita Isombe @ Sam v. Republic (Criminal Appeal No. 639 of 2021) [2024] T7CA 1239 for the proposition that minor contradictions are inevitable and do not vitiate an otherwise sound conviction. On the defence of alibi\ Mr. Rwezahula argued that it was the appellants' failure to comply with the procedural requirements of section 200 (4) of the Criminal Procedure Act, Chapter 20 (the CPA) which made the trial court rightly find their a lib i was unsubstantiated. He further strongly opposed the appellants' complaint on lack of legal representation, arguing that it was the appellants who never applied for the legal aid service provided under the Legal Aid Act, Chapter 21 (the Legal Aid Act). He finally urged the Court to dismiss the appeal for want of merit. In their brief rejoinder, the appellants prayed for their grounds of appeal to be considered, allowed and they be released from custody. Having considered both parties' submissions and the record before us, the two complaints framed above can, in our view, be conveniently resolved through three issues: one whether the appellants 7

were denied the right of legal representation, two whether the appellants were identified, and three, whether the offence of armed robbery was proved against the appellants beyond reasonable doubt. On the first issue, Mr. Rwezahula resisted the claim arguing that the appellants never sought any legal aid according to section 33 of the Legal Aid Act. This complaint should thus not detain us for, as correctly asserted by the learned State Attorney, the law (the Legal Aid Act) provides under section 33 why and how a magistrate or judge can certify that an accused person ought to have a legal aid in criminal proceedings. However, we wish to underscore here that an accused person who wishes to benefit from the legal representation provided under sections 33 and 36 of the Legal Aid Act is the one obliged to prepare all the materials essential for a magistrate or judge to consider when determining the issuance of the desired legal aid order. As in the instant appeal the record of appeal does not indicate that the appellants applied for legal representation or supplied the essential information for court's action, as was later conceded by themselves, this Court cannot thus fault either the trial court or the first appellate court for an issue which was not dealt with before. We thus reject this complaint.

Regarding the second issue on the appellants' identification, the appellants disputed the evidence of PW1, PW2 and PW3 arguing that, if the witnesses truly knew them as fellow villagers and recognized them at the scene of crime, it was suspicious that they didn't mention their names to the police immediately. The respondent opposed this complaint maintaining that, this was not an issue before trial court where PW1, PW2 and PW3 clearly testified that they recognized the appellants through a solar light at the scene and they knew them before. On our part, we are very much alive and entirely agree with the principles enunciated in the case of Marwa Wangiti Mwita (supra) that failure to mention the name of the perpetrator at the earliest opportunity diminishes the claim of visual identification; and, in the case of Kamuri Mashamba v. Republic (Criminal Appeal No. 325 of 2013) [2015] TZCA 457 that failure to describe physical appearance and attire of a culprit may render evidence of identification incredible. However, with all due respect to the appellants, we find the principles are inapplicable in the instant appeal. This is because: firstly, as correctly argued by Mr. Rwezahula, the issue of identification did not take precedent since it was undisputed at the trial court that the appellants are coming from the same village with PW1. This is

vividly exposed at pages 5 and 6 on endorsed undisputed matters during preliminary hearing as well as from the evidence adduced by PW2 and PW3 who corroborated PW l's evidence. Secondly, during defence case both appellants reaffirmed that they were residents of Nalang'tomoni Village. Besides, in their evidence found at pages 31 and 34 of the record of appeal respectively, while the first appellant told the trial court that 7 have conflict with PW1 because I m arried his x w ife" the second appellant testimony was that 7 know the victim we live in the same village " Moreover, Eveline Simule, the appellants' mother (D W li and DW2i) testified for the defence and her evidence found at pages 32 and 35 of the record of appeal is that 7 know Abel Charles's shop " and ’ They told me they fought with A b e l" Therefore, in view of the above, we hold that the non-naming of the appellants to the police did not in any way dent the affirmative prosecution evidence as corroborated by the defence, which proved the appellants being known before and recognized by PW1, PW2 and PW3 at the scene of crime on the fateful day. In Shamir s/o John v. Republic (Criminal Appeal No. 166 of 2004) [2007] TZCA 262, it was held that recognition is more reliable than identification of a stranger where there is a conducive environment, such as enough light. In this 10

case, PW1, PW2 and PW3 testified that solar light illuminated the scene of crime. This complaint is thus unmeritorious. The third issue is whether the charge was proved beyond reasonable doubt. This also requires us to consider other minor complaints such as variance of the charge and evidence, failure to consider defence, and conviction based on weakness of defence and not strength of prosecution. In resolving this issue, we are guided by the general principle that the burden of proof of a criminal charge lies on the prosecution and must prove it beyond reasonable doubt. The appellants on 29.10.2019 were charged with the offence of armed robbery. This offence is defined under section 287A of the Penal Code, that: "A person who steals a n y th in g a n d at or im m ediately before or after stealing is armed with any dangerous or offensive weapon or instrum ent and at or im m ediately 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 o f armed robbery and s h a h o n conviction be liable to im prisonm ent for a term o f not less than thirty years with or without corporal punishm ent " 11

From the above law, it is apparent that the offence of armed robbery is proved through three key elements which this Court has consistently held which are: (i) the act of theft, (ii) the use of or being armed with a dangerous or offensive weapon, and (iii) the use of violence or threat of violence at or about the time of the stealing. For further guidance, see John Madata v. Republic, Criminal Appeal No. 453 of 2017 [2020] TZCA 154. We also insisted in Nchangwa Marwa Wambura v. Republic (Criminal Appeal No. 44 of 2017) [2019] TZCA 459 that, stealing must be proved beyond reasonable doubt. We have carefully scrutinized the record. While the evidence of violence and the use of weapons is compelling, as adduced by PW1 and corroborated by PW2, PW3 and PW5, we find a critical evidential gap concerning the element of theft. This is because, the entire case for the theft of TZS. 1,860,000.00 rests on the sole testimony of PW1. PW3, his wife, who was present and raised the alarm, did not testify seeing the appellants taking any money from PW l's pocket other than the account that she heard the said robbing from PW1. Her evidence found at page 13 of the record of appeal is that: "...I went to see what was going on. I went outside and found the accuseds beating my husband. I started screaming for help. Adam Kizuri was the 1st one to reach for help. The 12

accuseds were having (sic) a sm all axe, stick and an iron stick. I identified them since there was solar light. The victim was injured on his head. Adam helped and the accuseds ran away... the victim told me that they took the money Tshs. 1,860,000/=, that 2nd accused took...2nd accused pulled the victim ...I was there." We hold a view that, where the witness was present and had a clear vantage point, as was PW3 above, her failure to corroborate this crucial aspect of the offence casts a significant doubt. This was also PW2's evidence, who said that "From the hospital Abel said they took his money" Thus, PW2 and PW3's evidence is mere hearsay. The law is trite that hearsay evidence is inadmissible. This is the spirit of section 67 of the Evidence Act, Chapter 6. For further appreciation, see- Vumi Liapenda Mushi v. Republic (Criminal Appeal No. 327 of 2016) [2018] TZCA 197. It is thus that, the omission by PW2 and PW3 to confirm the act of stealing creates a reasonable doubt as to whether the stealing, as particularized, occurred at all. As held in Yosiala Nicholaus Marwa & Others v. Republic (Criminal Appeal 193 of 2016) [2019] TZCA 147, the prosecution has a prim a facie duty to prove all elements of armed robbery. Failure of which renders a charge unproven. 13

In view of the foregoing, we are satisfied that the prosecution failed to prove the essential element of theft beyond a reasonable doubt. Consequently, the conviction of armed robbery cannot stand. We, nonetheless, find that the evidence that PW1 was injured by the appellants remains unshaken. We take this view considering the evidence by the complainant himself, PW2, PW3, PW5 and the appellants' mother (D W li and DW2i) as recapitulated above, and also based on the reason that we have already found that the appellants were identified at the scene. That evidence is cogent and established the offence of assault causing bodily harm contrary to section 241 of the Penal Code against both appellants. In addition, based on the positive appellants' identification and recognition at the scene of crime we endorsed above, particularly considering the evidence of PW1 and PW2, likewise, we dismiss the appellants' complaint that there is a material contradiction between the charge sheet which refers to a "blunt object" while the testimonies of PW1, PW2 and PW3 mentioned a small axe, an iron bar and a stick. We dismiss it because the evidence by PW1 and PW2 found at pages 9 and 13 of the record of appeal categorically implicated the appellants for beating PW1 and then using a piece of iron bar to hit him, the evidence 14

which does not contradict the particulars of the offence save to the element of stealing which we have already discounted. Finally, in view of the above evaluation of evidence, we further find, as correctly found by the two lower courts in our view, the appellants defence of a lib i and the alleged existence of enemity between the 1st appellant and the complaint are unsubstantiated. As we presented and discussed above, the same were not even supported by the appellants7solo defence witness (D W li and DW2i) who, contrary to their complaints, did not dislodge their presence at Nalang'tomoni Village on 20.10.2019. She in fact further implicated them for having told her that they had fought with PW1, the owner of the shop which was known to her. We thus hold that it is not true that the appellants' defence was not considered and that their conviction is based on weakness of their defence but rather it based on the evidence on record to the extent we have endearvoured to discuss above. Under the circumstances, we allow the appeal to the extent stated above. We therefore, quash the conviction of armed robbery and set aside the sentence of thirty years meted out to the appellants. Consequently, we substitute it with a lesser offence of assault causing bodily harm contrary to section 241 of the Penal Code. In this offence, the maximum sentence is five years. Since the appellants were 15

sentenced on 27.10.2020 which is approximately five years to date and considering the statutory remission they are entitled to under section 49 of the Prisons Act, Chapter 58, we find they have served the term equal to the prescribed sentence in the offence we have hereby substituted. In that regard, we order for the immediate release of the appellants from prison unless they are held for any other lawful cause. DATED at ARUSHA this 15th day of October, 2025. B. M. A. SEHEL JUSTICE OF APPEAL 0. O. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 15th day of October, 2025 in the presence of the appellants in person, Mr. Philbert Msuya, learned State Attorney for the respondent/Republic and Mr. Musa Amry, Court Clerk; is hereby certified as a true copy of the original. 16