Babu Changuche Masama vs Republic (Criminal Appeal No. 549 of 2022) [2025] TZCA 1050 (9 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM; KEREFU. J.A.- MWAMPASHI. 3.A. And AGATHO. J.A.l CRIMINAL APPEAL NO. 549 OF 2022 BABU CHANGUCHE MASAMA....................................................... APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) fMbaowa. 3.1 dated the 19th day of October, 2022 in Criminal Appeal No. 127 of 2021 JUDGMENT OF THE COURT 3* ^ O c t o b e r , 2025 MWAMPASHI. 3.A.: Babu Changuche Masama, the appellant herein, was convicted by the District Court of Tarime at Tarime of the offence of armed robbery contrary to section 287A of the Penal Code. Consequently, he was sentenced to a term of imprisonment of thirty years. Dissatisfied, the appellant unsuccessfully appealed to the High Court of Tanzania at Musoma hence, the instant second appeal. It was alleged in the particulars of the offence that, on 21.11.2019, at Bomani Street within the District of Tarime in Mara Region, the appellant stole a motorcycle with Reg No. MC. 574 BNM make SANLG, the

property of one Steven s/o Marwa and that, immediately before and after such stealing, he assaulted one Maginga s/o Francis by a club and knife in order to obtain and retain the said property. The relevant facts of the case as it can be deduced from the record of appeal, can be summarized as hereunder; Maginga Francis (PW1), was a motorcyclist dealing in motorcycle hire business ( bodaboda ), who at the material time and for that purpose, had been entrusted a motorcycle with Reg No. MC. 574 BNM make SANLG, belonging to one Steven Mwikwabe @ Marwa (PW2). His testimony was to the effect that, on 21.11.2019 at night hours, he met the appellant and one Juma Kiduku at Gasamara Petrol Station. The two who were not strangers to him as they were also, at one time, motorcyclists dealing in bodaboda business like him, hired and wanted him to take them to Bomani. Upon getting at Bomani near the bakery, Juma Kiduku hit him on the head using a club while the appellant cut him by a machete on the head and threatened to stab him on the chest by a knife. Having so attacked him, they fled with his motorcycle. PW1 further told the trial court that, he positively recognised the appellant with his colleague because at Gamasara where he was hired, there was electricity light from the nearby petrol station as it was for Bomani where he was attacked, where the light came from the nearby

bakery. He lastly testified that, after the appellant and his colleague had fled, he was rescued by a certain motorcyclist who took him to the police station where he was issued with a PF3. Thereafter, he went to the hospital where he was admitted for three days. On the day he was discharged from the hospital, he went to the police station where he was able to identify the appellant who had already been arrested. PW2's brief testimony was to the effect that, the Motorcycle PW1 was robbed belonged to him and that he was informed of the robbery on 21.11.2019 at around 20:00 hours. He also tendered in evidence the Registration Card of the motorcycle as exhibit PI. F. 250 D/Cpl. Simon (PW3) of Tarime Police Station told the trial court that he was at the police station on 25.11,2019 when the appellant who had been arrested for a different offence of armed robbery by civilians was, at around 19:30 hours, handed over to him for interview. In the course of the interview, the appellant confessed to have committed other robberies including the robbery against PW1. To that effect, PW3 tendered a cautioned statement which was admitted in evidence as exhibit P2. PW3 lastly testified that, following the appellant's confession in respect of the robbery against PW1, he was taken to the Justice of the Peace for his extra judicial statement to be recorded.

The appellant's extra judicial statement which was tendered and admitted in evidence as exhibit P3, was recorded by Theresia Boah (PW4), a Resident Magistrate stationed at Tarime Urban Primary Court on 04.12.2019 at around 10:00 hours. According to PW4, the appellant freely confessed to have committed the robbery in question. The appellant, who was the sole witness in his defence, told the trial court that, on the fateful night he was not at Tarime but was at Serengeti Mugumu. He defended himself by testifying that, he came back to Tarime on 23.11.2019 and was arrested on 25.11.2019. He denied to have committed the robbery against PW1 and complained that he was tortured and forced to sign the confessional statements, that is, exhibits P2 and P3. In its decision, the trial court found that the prosecution evidence on record sufficiently proved the case against the appellant beyond reasonable doubt as required by the law. It found that, the appellant was positively identified by recognition at the scene of crime by PW1. The trial court also relied on the cautioned statement (exhibit P2) and extra judicial statement (exhibit P3) which were found to contain the appellant's confession to have committed the offence. The appellant's defence of a lib i was rejected not only for not being properly raised but also for not being

established. The appellant was thus, convicted and sentenced to serve a period of 30 years in prison. As we have alluded to earlier, on appeal to the High Court, the appellant's appeal was dismissed and the trial court's decision was upheld hence, the instant second appeal. In this appeal, the following seven grounds of appeal contained in the memorandum of appeal lodged on 30.12.2022, have been raised; One, that the appellant was not positively identified at the scene of crime, two, that the cautioned statement was recorded under cohesion and threats contrary to the law, three, that the defence was not considered, four, that the prosecution evidence was not credible and reliable, five, that the extra judicial statement was recorded in contravention of the law, six, that neither the motorcycle allegedly stolen nor the certificate of seizure was tendered in court as exhibits and seven, that the case against the appellant was not proved beyond reasonable doubt. During the hearing of the appeal, the appellant appeared in person without legal representation. On the other side, the respondent Republic was represented by Ms. Grace Michael Madikenya, learned Senior State Attorney, assisted by Ms. Agma Agrey Haule and Mr. Zarubabel Ngowi, both learned State Attorneys.

When called upon to argue his appeal, the appellant adopted his grounds of appeal and urged the Court to consider them, allow his appeal and set him free. Without more, he let the learned State Attorneys respond to the grounds while reserving his right to make a rejoinder if there would be a need to do so. Ms. Haule addressed us on behalf of the respondent Republic. Having expressed the respondent's stance of opposing the appeal, she argued that, the 1st ground of appeal is baseless because, PWl's identification of the appellant at the scene of crime was positive and watertight. She contended that, the place PW1 picked the appellant with his colleague was well illuminated by electricity light as it was the place where he was attacked and robbed of his motorcycle. Placing reliance on the decision of the Court in the case of Tabu Sita v. Republic [2022] TZCA 702, Ms. Haule further argued that, PWl's identification of the appellant was by recognition which is more reliable. As on the 2n d ground of complaint, it was submitted by Ms. Haule that, the cautioned statement (exhibit P2) was admitted in evidence without objection. She argued that, as the admissibility of the statement was not contested when it was admitted in evidence, the complaint against it cannot be raised at this stage. To Ms. Haule, the complaint was

nothing, but an afterthought In support of her argument, our decision in Emmanuel Lohay & Another v. Republic [2013] TZCA 292 was cited. Ms. Haule urged us to also dismiss the 3rd ground of appeal for being baseless. Referring us to pages 70 and 71 of the record of appeal, she contended that, while the appellant's defence was not considered by the trial court, the High Court, being the first appellate court, stepped into the shoes of the trial court and considered the defence. With regard to the 4th ground of appeal, based on the case of Goodluck Kyando v. Republic [2006] T.L.R. 362, it was simply argued by Ms. Haule that, the prosecution witnesses were credible and reliable. As on the 5th ground of complaint, Ms. Haule submitted that the extra judicial statement (exhibit P3) was recorded in accordance with the Chief Justice's Guideline for Justices of the Peace. She insisted that the extra judicial statement corroborated other pieces of evidence, particularly the evidence of PW1. She thus prayed for the 5th ground to be dismissed. Submitting on the 6th ground of appeal, Ms. Haule pointed out that, since the motorcycle stolen was not recovered, it cannot be complained by the appellant that, the same or the certificate of seizure were not tendered as exhibits. Based on the case of Alex Mwashilindi & Another v. Republic [2023] TZCA 18008, Ms. Haule contended that, the omission

to tender the same was justifiable and not fatal to the case for the prosecution. She thus, urged us to dismiss the ground for being misconceived. Lastly, it was argued by Ms. Haule on the 7th ground of appeal that, the case against the appellant was proved to the hilt. Citing the decision of the Court in Alex Mwashilindi & Another (supra), she contended that all the ingredients of the charged offence were proved beyond reasonable doubt. She thus, argued that the appeal is baseless and should be dismissed in its entirety. In his brief rejoinder, the appellant insisted that, he was tortured and forced to confess. He thus, implored upon us to consider his grounds of appeal and allow the appeal. The above being the submissions for and against the appeal, the issue for our determination is whether the appeal is meritorious or not. Our determination of the issue posed above, begins with the first ground on identification. On this, we are in agreement with the appellant that, there was no watertight evidence proving that the appellant was positively identified by PW1 at the scene of crime. PWl's account that he identified the appellant by recognition, leaves a lot to be desired. Firstly, PW1 who claimed to have known the appellant with his colleague by their names as

they used to be his fellow motorcyclists, did not name them neither to the police station nor to any other person. Secondly, there is no evidence on record that the incident was reported to the police station. Even PWl's account that he was issued with a PF3 and was admitted in hospital for three days is doubtful as no PF3 was tendered as an exhibit to that effect. It is also doubtful that, after being discharged from the hospital, PW1 went to the police station and identified the appellant as claimed by him. It should also be borne in mind that, the appellant was not arrested for the robbery against PW1 but for another different robbery incident. As alluded to above, the fact that there is no evidence which is to the effect that PW1 named the appellant to the police station and further, there being no evidence that the incident was reported to the police, make us firmly conclude that, PW1 did not identify the appellant at the scene of crime. PWl's credibility and reliability on identification of the appellant cannot be assured. It is a settled position that, the ability of a witness to name a suspect at the earliest opportunity has been recognized as an all- important assurance of the reliability of the witness. See- Marwa Wangiti Mwita & Another v. Republic [2002] T.L.R. 39 and Nebson Tete v. Republic [2015] TZCA 518. 9

Regarding the 2n d ground of complaint in which the appellant challenges the reliability and admissibility of his cautioned statement (exhibit P2) in that, it was made by him under coercion and threats, we join hands with Ms. Haule, that the complaint is an afterthought. The record of appeal at page 24, clearly show that the statement was tendered and admitted in evidence without any objection from the appellant. If the appellant had any issue with the statement, for instance, that he was not a free agent when making it, as he is now complaining, he ought to have raised the complaint at the trial during when the same was tendered and admitted in evidence. As we held in Shihoze Semi and Another v. Republic [1992] T.L.R. 330, it is trite law that, if an accused person intends to object to the admissibility of a statement/ confession, he must do so before it is admitted and not during cross-examination or during defence. See also, Emmanuel Lohay & Another (supra). By attempting to challenge the voluntariness of the cautioned statement at this stage, the appellant has surely missed the boat. The 2n d ground of appeal is accordingly dismissed for being devoid of merit. The 3rd ground of appeal is also baseless. Having examined the record of appeal, it cannot be complained that the defence evidence was not considered. The sole defence raised by the appellant was an alibi. At page 10

48 of the record of appeal, in its judgment, the trial court considered the defence and rejected it because it was belatedly raised in defence evidence without notice contrary to section 194 (4) of the Criminal Procedure Act, Cap. 20 (the CPA). The defence was also rejected for not being established. As if that was not enough, on appeal, the High Court, considered the defence by re-evaluating it. At page 71 of the record of appeal, the High Court is on record observing that: "In view o f the above cited authority and considering that this is the first appellate court, I decided to re-evaluate the evidence including the defence o f a lib i but I did not find m erits in the appellant's alibi\ The appellant did not bother to establish it apart from his mere verbal. The appellant's defence did not raise reasonable doubt in the prosecution case". The 3rd ground of complaint is, for the above reasons, dismissed. The appellant's defence evidence was properly dealt with. On the 4th ground of appeal, where the complaint is that, the prosecution witnesses were not credible and reliable, it is our considered view that, not all 4 prosecution witnesses can be said to have not been credible and reliable. Based on the principle stated in Goodluck Kyando (supra), that, every witness is entitled to credence and must be believed li

and his testimony accepted unless there are good and cogent reasons for not believing him, with the exception of PW1, we do not find any good reason for not believing PW2, PW3 and PW4. As observed when determining the 1st ground of appeal, it is only PW1 whose reliability is doubtful for the reasons stated thereof. The 4th ground of appeal is thus partly allowed to the above stated extent. With regard to the 5th ground of appeal, the issue is whether the extra judicial statement (exhibit P3) was recorded in accordance with the law, that is, the Chief Justice's Guideline for the Justices of the Peace (the Guideline). In the decision of the Court in Japhet Thadei Msigwa v. Republic [2011] TZCA 108, the Court observed, among other things that, the Chief Justice issued instructions to the Justices of the Peace to guide them in the manner of recording extra Judicial statements. In that case, it was also emphasized that, before recording the confession, the Justice of the Peace should observe and inquire from the accused person important details including the following: (i) The time and date o f his arrest (ii) The piace he was arrested (Hi) The piace he slept before the date he was brought to him. (iv) Whether any person by threat or prom ise or violence has persuaded him to give the statement, 12

(v) Whether he really wishes to make the statem ent on his own free will. (vi) That if he makes a statement, the same may be used as evidence against him. That, the above are important details which the Justice of the Peace is required to inquire from the accused person before recording his confession, has been stressed by the Court in a number of its decisions including in the cases of Peter Charles Makupila @ Askofu v. Republic [2021] TZCA 197 and Emmanuel Eliabi @ Sanga v. Republic [2024] TZCA 3. Furthermore, in Japhet Thadei Msigwa (supra), the Court emphasized that when Justices of the Peace are recording confessions of persons in custody of the police, they must follow the Chief Justice's instructions to the letter and that non compliance will normally render the confession not to have been taken voluntarily. Guided by the above position of the law, we have gone through the confession form containing the appellant's extra judicial statement and observed that, before recording the statement, the Justice of the Peace (PW4), did not give details regarding the time the appellant was arrested and the place he slept the date before his statement was recorded. The omission, according to the above cited authorities, renders the voluntariness of the statement questionable. That being the case, we 13

allow the 5th ground of appeal and expunge the statement, that is, exhibit P3, from the record for being recorded not in accordance with the law. The 6th ground appeal should not detain us. As rightly submitted by Ms. Haule, the complaint that the motorcycle and certificate of seizure were not tendered in evidence as exhibits, is a misconceived complaint. How could the stolen motorcycle which was not recovered be tendered in evidence as an exhibit. Furthermore, as we held in Alex Mwashilindi & Another (supra), proof of armed robbery is not conditional upon the prosecution tendering in evidence a stolen item. Therefore, the 6th ground fails. Turning to the 7th and last ground of appeal on whether the case against the appellant was proved beyond reasonable doubt as required by the law, it should be pointed out that, having expunged exhibit P3 from the record, the only remaining incriminating evidence is the cautioned statement (exhibit P2). That being the case, the following question is whether by the said cautioned statement containing the appellant's confession, sufficiently proved the case against the appellant to the required standard. 14

We are mindful that, it is trite position of the law that, the confession of an accused person which is not retracted or repudiated, can be relied upon to ground conviction even without corroboration. See- Emmanuel Eliabi (supra). Further, the evidence of an accused person confessing to the offence is the best evidence to ground conviction. See- Mboje mawe & 3 Others v. Republic [2011] TZCA 136, As alluded to earlier, the appellant's cautioned statement was tendered in evidence without objection and in the said statement, the appellant confessed to have committed the charged offence. He explained, in detail, on how he and his colleague robbed the motorcycle from PW1. Though, he did not mention PW1 by the name, the registration number of the motorcycle they stole, the time and the places they were picked by PW1 and where the offence was committed, leaves no doubt that the robbery they committed was against PW1, the victim in the case at hand. His confessional statement contains all the ingredients of armed robbery. Part of the cautioned statement which appears at page 39 of the record of appeal, reads: "...tarehe 21/11/2019 Hipokuwa beria na nilikuwa na Juma s/o Kiduku wa Kukehogoma tulimsimamisha bodaboda mmoja ninayemfahamu kwa sura atupeleke kiwanda cha mikate Bomani Tarime naye 15

alikubali na kutupeleka kwa bei ya Tsh 2000/= na tufimwambia apite njia ya Kwenda kwa mkuu wa wilaya na yeye alifanya hivyo na tulipofika maeneo hayo niHmwambia asimame na aliposimama nilimwambia aachie pikipiki aondoke na yeye alikataa ndipo nifipompiga rungu kichwani akaanguka nikamkata kwa panga kichwani na kumchoma kisu upande wa jicho la kushoto akakimbia na sisi tukachukuwa pikipiki na kuondoka kwa kupitia mtaa wa Kogere . Pikipiki yenye namba za usajiii MC 574 BNM na tuliipeleka pikipiki hiyo S irari kwa mtu ambaye sim jui jin a lake na tarehe 25/11/2019 saa 19:30 hrs niiikamatwa na wananchi ambao n i bodaboda nikiwa nimeiba p ikipiki Reg. No. MC 513 HU Sanlg rangi nyekundu huko mtaa wa Buhem ba.... It is thus, crystal clear that, in the appellant's confession, as above demonstrated, all the ingredients of the offence of armed robbery under section 287A of the Penal Code, were admitted. The appellant was armed with offensive weapons, to wit, the machete and knife and he used the said weapons to attack and wound PW1 before stealing from him the motorcycle. The appellant was also in the company of one Juma s/o Kiduku. 16

We are thus, of a firm finding that, based on the appellant's confession in the cautioned statement (exhibit P2) which was tendered and admitted in evidence without objection, the case against the appellant was proved beyond any shadow of doubt. Consequently, for the above given reasons, the appeal fails and it is hereby dismissed in its entirety. DATED at MUSOMA this 9th day of October, 2025. Judgment delivered this 9thday of October, 2025 in the presence of the Appellant in person and Mr. Jonas Samwel Kivuyo, learned State Attorney for the Respondent/Republic via Virtual Court and Shabani Kinyai, Court Clerk; is hereby certified as a true copy of the original. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL 17