Emmanuel John @ Masanja vs Republic (Criminal Appeal No. 86 of 2023) [2025] TZCA 1059 (10 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA ( CORAM: GALEBA. J.A.. MGEYEKWA. 3.A. And MLACHA. 3.A.^ CRIMINAL APPEAL NO. 86 OF 2023 EMMANUEL JOHN @MASANJA................................................ APPELLANT VERSUS THE REPUBLIC ................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Salema. J.'l dated the 28thday of October, 2022 in Dc Criminal Appeal No. 42 of 2021 JUDGMENT OF THE COURT 6th & 10,h October, 2025 MLACHA. J.A. The appellant, Emmanuel John @ Masanja was arraigned at the District Court of Urambo at Urambo of Armed Robbery contrary to section 287Aof the Penal Code, Cap 16 of the Revised Laws 2019. The particulars attached to the charge were that, on 19/6/2020 at night hours, at Kashishi village, within Urambo District in Tabora Region, the appellant stole cash Tzs. 500,000.00, one television set make Aborder valued at Tzs. 170,000.00, one flash disc valued at Tzs. 20,000.00 and a bag of clothes valued at Tzs. 100,000, all total valued at Tzs. 790,000.00 the property of Daudi Muhoja and that immediately before or after the stealing used a machete and a club against Mr. Daudi Muhoja in order to obtain the

properties. He denied the charge and the case went to full trial. The prosecution called three witnesses whereas the appellant was the sole defence witnesses. At the end of the trial, the appellant was found guilty, convicted and sentenced to the mandatory sentence of 30 years in jail. His appeal to the High Court could not be successful. The facts which were believed by the trial court leading to the conviction of the appellant can be presented briefly as follows. Daudi Mhoja (PW1) was asleep with his wife on 19/6/2020 at around 1:00 hours when he heard a big bang at the entrance door of his house. The door was broken and three people entered. It was alleged that the appellant entered inside with 2 other people who demanded money. PW1 gave them Tzs. 500,000.00. Soon, following an alarm raised by his wife, people arrived. It is alleged that other bandits escaped while the appellant was put under arrest. He was sent to the police station where he confessed and recorded his cautioned statement, exhibit PI. He was later sent to the District Court charged as alluded above. The defence of the appellant was that he met people on the way on the material day who put him under arrest and beat him up. He became unconscious. When he woke up later in the day, he found himself at Kashishi police post. He was told that he had committed the crime something which is not true. He denied committing the crime. 2

The District Court was impressed by the evidence from the prosecution. The defence of the appellant was rejected. It found that the offence was proved beyond reasonable doubt hence the conviction and sentence. The appellant's appeal to the High Court was not successful. The appellant has four grounds of appeal but, for reasons which will be apparent soon, we will not reproduce the grounds of appeal at this stage. The appellant appeared in person whereas the respondent Republic was represented by Ms. Grace Lwila, learned Senior State Attorney who teamed up with Ms. Eva Msandi and Mr. Salyungu Kibinza, learned State Attorneys. The appellant opted for the respondent Republic to start to respond to the grounds of appeal while he reserved his right of rejoinder. Ms. Msandi made the submission for the respondent Republic. At the earliest, she informed the Court that the respondent Republic supported the appeal on ground one of appeal which reads as follows; "That, the case for the prosecution was not proved against the appellant beyond reasonable doubts." Amplifying, he submitted that the particulars of the offence in the charge sheet appearing at page 1 of the record of appeal shows that the appellant robbed cash Tzs. 500,000.00, a television set valued at Tzs. 170,000.00,

a flash disc valued at Tzs. 20,000.00 and a bag of clothes valued at Tzs. 100,000.00, but the evidence adduced by the prosecution appearing from page 13 to page 26 of the record of appeal, does not show that the appellant robbed a Television set, a flash disc and bag of clothes. It only shows that he robbed cash Tzs. 500,000.00. She contended that there was no proof of stealing other items because they are not mentioned by any of the witnesses from the prosecution. She submitted that, there was variance between the charge sheet and evidence in this case which has the effect rendering the trial unfair against the appellant. Ms. Msandi contended further that, ordinary, the prosecution was required to amend the charge in terms of section 251 (1) of the Criminal Procedure Act (the CPA), but that was not done. In view of this predicament, the learned State Attorney called upon the Court to nullify the proceedings and judgments of the lower courts, quash the conviction and set aside the sentence imposed on the appellant and set him free. She cited our decisions in Godbless Uliufoo Urasa v. The Republic [2025] TZCA 735 and Petro Mlongo & 2 Others v. The Republic, [2025] TZCA 142 to support her stance. The appellant being a layman could not respond to the points raised. He only said that he supported the submission of the learned State Attorney and urged the Court to set him free.

We had time to revisit the record of appeal and consider the submissions of the learned State Attorney. We agree with the learned State Attorney that there is variance between the charge and the evidence on record. That whereas the charge sheet shows that the appellant robbed cash Tzs. 500,000.00 plus a flash disc, Tv set and a bag of clothes, the evidence on record appearing from page 13 to 26 does not show that the flash disc, TV set and bag of clothes were stolen from PW1. They are also not mentioned in the cautioned statement, exhibit PI. As alluded to above by the learned State Attorney, the prosecution had a chance to amend the charge under section 251 (1) of the CPA but did not do so. The follow up question now is what is the way forward. The learned State Attorney is inviting the Court to find that there was no evidence to prove the case and the accused is entitled to an acquittal. The appellant has welcomed the submission of the respondent Republic with open hands. Faced with a similar predicament in Petro Mlongo (supra), the Court had this to say: "Since there was variance between the charge and the evidence as we have demonstrated above, and because there was no amendment which was done in terms of section 234 (1) o f the CPA, then the prosecution evidence in relation to the charge 5

against the appellants was not proved to the required standard... where there is a variance between the charge and the evidence on record, an amendment should be made in terms o f section 234 (1) of the CPA to make it conformity with the evidence on record, failure o f which the preferred charge will remain unproved and the accused shall be entitled to an acquittal. See, for instance, Francis Thomas v. The Republic, Criminal Appeal No. 135 o f 2021, Mohamed Juma @ Mpakama v f The republic [2019] TLR 514 and Abe! Msikiti v. Republic Criminal appeal No. 24 o f 2015 . " See also Godbless Eliufoo Urasa (supra)* The above excerpt is to the effect that where there is variance between the charge and the evidence on record, like in the case at hand, the charge remains unproved and the accused deserve an acquittal. In the circumstance, we are satisfied that there was no evidence on record to prove the charge, on the standard required in criminal cases, upon which the appellant could be convicted. We have the view that if the first appellate court could have considered the evidence in the manner we have done, it could not have sustained the conviction of the appellant. Ground one is thus found to be meritorious and allowed. 6

In view of what we have deliberated above we find no base to discuss other grounds of appeal. We find the appeal with merit and allow it. Accordingly, we quash the appellant's conviction and substitute it with an acquittal resulting in setting aside the sentence imposed on him. He should be set free unless lawfully held on some other lawful cause. DATED at TABORA this 9th day of October, 2025. Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 10th day of October, 2025 in the presence of appellant in person unrepresented, Ms. Upendo Florian, Learned State Attorney for the Respondent/Republic and Ms. Janekisa Bukuku, Court 7