Changa Changa Maheri & Another vs Republic (Criminal Appeal No 317 of 2023) [2025] TZCA 1038 (8 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: KEREFU, J.A.. MWAMPASHI, J.A. And AGATHO, J J U CRIMINAL APPEAL NO 317 OF 2023 CHANGA CHANGA MAHERI CHACHA MWITA CHANGA.. ,1st APPELLANT 2 n d APPELLANT VERSUS THE REPUBLIC, RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) 30th September & 8thOctober, 2025 AGATHO, J.A.: Before the High Court of Tanzania at Musoma (the trial court), Changa Changa Maheri (first appellant) and Chacha Mwita Changa (second appellant), were charged with two counts of attempting to murder Ezra Sasi Johaness and Samweli Nyahili contrary to Section 211(a) of the Penal Code [Cap. 16 R.E. 2019]. The trial court convicted the first appellant on both counts and the second appellant only on the first count The first appellant was sentenced to eight years' imprisonment for each count whereas the second appellant was sentenced to eight years for the first count. In addition, the first appellant was ordered to pay monetary (Mahimbali. J.) dated the 20th day of December, 2022 in Criminal Session No. 69 of 2022 JUDGMENT OF THE COURT

compensation of TZS 2,000,000.00 to each victim while the second appellant was ordered to pay similar amount to the first victim only. The particulars of information on which they were arraigned before the trial court were that, on 01/05/2021 at around 21:30 hours at Kewanja Village within Tarime District in Mara Region, they attempted to murder the aforesaid victims contrary to section 211(a) of the Penal Code. When the prosecution read over the information each appellant pleaded not guilty. The evidence upon which the appellants' conviction was grounded was that, on the night of 01/05/2021, around 21:00 hours, at a guardroom in Kewanja Village within Tarime District in Mara Region, Ezra Sasi Johaness (PW1) and Samwel Nyahiri Wambura (PW2) were on duty when several armed men invaded the premises. One of the intruders, entered the room, put the guards under arrest and threatened to kill them. PW1 gathered strength and turned on the inner light making the room well-lit. The invader got out inquiring them as to why they were guarding in his land, to which they protested that they were mere employees. PW1 identified that person who entered to be Chacha Mwita Changa who is the second appellant. However, he could not recall how he was dressed during the commotion despite standing with him the distance of one step away.

According to PW1, outside the guards' room were more people who threw stones and attacked them with machetes. After getting out, he identified the first appellant, Changa Changa Maheri who used to be his coworker. It was his testimony that, while the second appellant cut him with a panga on his hands and legs; the first appellant did cut him on his chest, left eye and left hand. He was severely injured, and lost his left eye permanently as seen on page 84 of the record of appeal. He luckily managed to escape to his home, informed his father and was taken to the police and afterward to the hospital. On his side, PW2 sustained a deep head wound and cuts on his hand. He identified the two appellants herein as among invaders in the midst of five people who were present at the scene. He also later successfully, ran and hid in a bush, where he got rescued by villagers. Both victims testified to have identified the appellants due to bright electric lights (inside and outside the room), proximity (about one meter), familiarity with them as fellow villagers and ex-co-workers, and the incident lasted for about ten minutes. Besides that, they reported and named them promptly. WP 9755 D/C Imaculate (PW3) investigated the case. She recounted that the first appellant was arrested on 02/05/2021 while the second 3

appellant was apprehended on 13/05/2021. Another prosecution witness was a clinical officer, Jackson Pius Chacha, who testified as PW4. He conducted medical examinations on victims and tendered exhibits PI and P2 confirming grievous bodily harm from sharp/blunt objects. In their defence, the appellants denied any involvement, claiming that at the alleged time of the incident they were at home. They also challenged identification, and* inconsistencies and contradictions in prosecution evidence to which the court evaluated and held them to be immaterial. Relying on prosecution's credible visual-identification and medical evidence, the trial court convicted and sentence them as indicated above. The appellants were not amused. They appealed to this Court with four grounds of appeal as gathered from their memorandum of appeal i dated 26/09/2025 substituting previous memoranda of appeal. The grounds are paraphrased as follows:

1. That, the appellants were not properly Identified.
2. That, the prosecution evidence was contradictory, inconsistent and unreliable.
3. That, committal proceedings were improperly conducted.
4. That, mitigation was not conducted.

In prosecuting the appeal, the respondent Republic was represented by Ms. Monica Alex Hokororo, learned Principal State Attorney, Ms. Agma Agrey Haule, and Ms. Beatrice Timothy Mgumba, learned State Attorneys. The appellants were present in person and employed the services of Mr. Daud John Mahemba, learned advocate. At the outset Mr. Mahemba submitted that they are abandoning their previous memorandum of appeal and will submit only on the memorandum of appeal lodged on 26/02/2025. He opted to submit on the first, second and fourth grounds of appeal while the third ground was i abandoned. It suffices to state here that, in his submission the learned advocate abandoned the fourth ground as well. It was his submission that, PWl and PW2 testified that they identified the appellants at the crime scene. However, their evidence is contradictory in several aspects. For instance, on the number of invaders; PWl said one invader with a panga invaded them in the room while the light was off, after PWl switched the light on the invader went out. Whereas, PW2 testified that, when the light was switched on two more people invaded them, making the invaders who entered the guards' room and attacked them to be three.

The learned advocated recalled that, PW1 said he identified the second appellant and when he went out, he identified the first appellant. PW1 testified further that he was not attacked while in the room. Again, PW1 stated in his testimony that they were attacked by stones. To the contrary, PW2 testified that they were attacked by pangas when they were in the room. Mr. Mahemba submitted that, PW1 testified that when he ran for help to his home, he found his father Sasi Mabula, and he mentioned to him the two appellants. But in exhibit PI (PF3), PW1, at page 83 of the record of appeal asserted that he did not know who attacked them while * in the same PF3 on the part filled by the doctor, it says "after being attacked by known person." The learned advocate highlighted that at the Police Station is the first place where the incident was first reported and not to the doctor. It was Mr. Mahemba's view that this defect applies to both PF3. He also denounced the prosecution evidence in that, PW1 and PW2 testified that they knew the appellants prior to the incident but they did not explain physical appearance and even the clothes they wore. It was further submission of the learned advocate that identification at night poses risk of mistaken identity. He referred us to the case of

Gervas Gervas Cosmas Chambi & Others v. Republic [2023] TZCA 156 where the Court insisted that the witness should explain the physical appearance and clothes the assailant wore to eliminate risk of mistaken identity. For emphasis, Mr. Mahemba cited another case of Masenga Mwita v. Republic [2025] TZCA 239, holding that, in visual identification all possibilities of mistaken identity must be eliminated before relying on such evidence. The evidence of PW5 in that case was rejected because he failed to explain the physical appearance of assailant. In the case at hand, the appellants' advocate reproached the trial court for not addressing this point On top of that, he criticised the testimony of PW1 that the electricity light in the room could illuminate 7 metres. He wondered, if the light was in the room how could it be known that it illuminates 7 metres. He contended that electricity light intensity depends on the bulb used, which PW1 did not explain. Regarding contractions as to the number of wounds, Mr. Mahemba pointed out that PWl's and PW2's oral account on the number of wounds they sustained contradicts the number of wounds stated in the exhibits. PW1 said he was attacked in his two legs and his arms and mentioned the first appellant as the one who attacked his left arm and the eye. The

learned advocate argued that if one reads exhibit PI, Police Form No. 3 (PF3), it is apparent that the attacks on the chest and arms were not mentioned. The doctor says he had trauma. The doctor did not mention the wounds. The same applies to exhibit P2 and testimony of PW2. In the exhibit P2, the doctor said there was a deep cut wound on the head. While the witnesses said they reported these, it is unclear as to why the police did not include them in the report. On the ability to name the assailants early as an assurance to credibility of a witness, the learned advocate submitted that, PW2 did not tell Matiko Nenga, the first person he met, that the appellants attacked him instead he told Andrew Thomas who he met later and was also called to testify. He rightly contended that, in law, failure to name the assailant early leads to doubt on credibility of a witness. The learned advocate further lamented about the prosecution's failure to call material witnesses which otherwise entitles the court to draw adverse inference. He submitted that PW2 said Matiko Nenga was the first to help him at the crime scene. But Matiko Nenga was not called to testify. Likewise, PWl after running away from the crime scene he went home and met Sasi Johanes, his father, but he was not called to testify. Mr. Mahemba underlined that even the police officer who recorded the 8

statements of the appellants at Nyamongo Police Station was not called to testify. In Maguchi Julius Goryo & . Another v. Republic [2025] TZCA 388, the Court drew adverse inference for failure to call material witness. He insisted that, although under section 152 of the Evidence Act [Cap 6 R.E. 2023] the prosecution was not bound to call specific numbers of witnesses to prove the charge, in the present case, the material witnesses were not called to testify. To wind up, he abandoned the third and fourth grounds of appeal and beseeched the Court to find that the appellants were not properly identified and the evidence of PW1 and PW2 was contradictory. In her reply submission, Ms. Haule pointed out that, they oppose the appeal. She thus responded to the contradictions on evidence of prosecution witnesses on the issue of identification which found to be immaterial. Concerning contradictions on the number of assailants, she referred us to page 19 of the record of appeal, where PW2 testified that, the two invaders invaded them in the room while PW1 said one invader invaded them. In her view that is not a material contradiction. As for identification, she contended that there was no material contradiction as each witness explained how the incident occurred. PW1 9

on page 17 of the record of appeal testified that Chacha Mwita Changa attacked him with a stone. But on page 13 of the record of appeal, PW1 said there were other people throwing stones at them. On the contrary, PW2 did not testify about them being attacked by stones. It was her submission that this discrepancy does not go to the root of the case. With regards to contradictions on identification of the appellants as seen in exhibits PI and P2 at pages 83 to 85 of the record of appeal, the learned State Attorney conceded that exhibit PI says that they were attacked by unknown person. But she quickly submitted that the victims identified the appellants. It was her argument that the issue that exhibit PI saying they were attacked by an unknown person was a slip of the pen because the doctor's part in the same form said they were attacked by known person. In her view, there was proper identification by recognition. That is why the appellants were arrested. However, she conceded that the witnesses did not explain on assailants' physical appearances. Ms. Haule added that, in identification by recognition there is no need to give description of an assailant's physical appearance. In that regard, she considered the cases cited by Mr. Mahemba to be distinguishable. She contended that, PW1 testified on the light's intensity, that there was bright electricity light illuminating the scene. But she defended that the

witnesses could not testify on the type of bulb as they were not electricians. In further reply, the learned State Attorney submitted with regards to the number of wounds by referring to the doctor (PW4) who testified on page 29 of the record of appeal that PW1 had wounds like what was testified by the victim himself. Ms. Haule also responded on failure to call material witnesses. She justified that those who were not called to testify were not material and section 152 of the Evidence Act [Cap 6 R.E. 2023], provides that there is not exact number of witnesses that the prosecution should parade to prove the case. The learned State Attorney pointed out that the case of Maguchi's case (supra), is in her view, distinguishable as there was no positive identification while in the present case there was positive identification. She contended that there were no serious contradictions in this case. On visual identification, she stressed that the light was illuminating, the distance was one step, and the victims recognized the assailants. On his turn, Mr. Mahemba had nothing to rejoin than reiterating his submission in chief. ii

In determining the appeal, we begin with the first ground of appeal in which the appellant complains that there was an erroneous conviction based on PW1 and PW2's evidence creating doubt on prosecution, with improper identification. It is a settled law that visual identification at night is the weakest form of evidence and must be watertight to sustain a conviction, requiring scrutiny of lighting, distance, duration, and familiarity. In Waziri Amani v Republic [1980] TLR 250, the court observed that: "Evidence o f visual identification in criminal cases can bring about miscarriages o fjustice and it is o f vital importance that such evidence is examined carefully to minimize this danger , " Emphasizing description of light sources and conditions, in Mgambo Saanane & Another v. Republic [2024] TZCA 247 a conviction for attempted murder was quashed due to unreliable nighttime identification, stating at page 10 that: "In the case at hand, both PW1 and PW2 testified that, they managed to make positive identification o f the appellants to be the attackers o f PW1 by the aid o f 5 watts solar bulbs and the fact that the appellants were known to PW1 and PW2 before 12

the incident being neighbours. However, neither PW1 nor PW2 described the physical appearance o f the attackers to the persons who came to their rescue on the fateful night. In our view, describing their appearance was equally important so as to dispel every possibility of error in the identification more so, in the circumstance as the one at hand where the witnesses testified to be familiar with the appellants, and according to PW1, the incident took about 10-15 minutes. In the absence o f the required description, we get difficulties in believing the witnesses." In the case at hand, the trial judge considered bright electric lights, one meter proximity, 10 minutes duration, and familiarity of the victims and the assailants (being fellow villagers, and one ex-co-worker), aligning with these standards, he concluded that the identification was proper. However, the absence of specific testimony on clothes worn by the assailants creates doubt, as per the above cited case where partial identification was deemed insufficient. Another important principle which was not complied with, is the ability of a witness to name the assailant at earliest opportunity which increases the credibility and reliability of a witness as held in Wangiti Marwa Mwita & Others v. Republic [2002] T.L.R 39. To our dismay, 13

PW1 did not tell his father, the first person he met after escaping from the attackers about them. Similarly, PW2 did not name the attackers to Andrew Thomas, the person he met first. Moreover, looking at Police Forms No. 3 (PF3) of both PW1 and PW2 clearly states that the assailants were unknown. This creates doubts as to the identification of the appellants. We thus find the appellants' complaint on first ground of appeal to have merit. In the second ground of appeal the appellant complains that their conviction was based on contradictory, inconsistent and unreliable prosecution evidence failing to meet the standard of proof beyond reasonable doubt. Section 3(2)(a) of the Evidence Act requires in any criminal proceedings proof to be beyond reasonable doubt. It is also settled that material contradictions can vitiate a case. In Ridhiwani Nassoro Gendo v. Republic [2020] TZCA1790 the court, cited Sarkar's Law of Evidence (16th Ed., 2007, p. 19-20): "Norma! discrepancies in evidence are those which are due to normal errors of observation, normai errors o f memory due to iapse o f timef due to mentai disposition such as shock and horror at the time o f the occurrence and those are always there however honest and truthfui a witness may be. 14

Material discrepancies are those which are not normal and not expected o f a normal person , Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility o f a parties1 case, material discrepancies do . In our settled view, in this case, that variances in evidence like attacker's number (four versus five) or entry sequence can be attributable to trauma and time lapse, as the High Court correctly ruled at page 74 of the record of appeal. However, the discrepancy seen in the PF3 part of the record of appeal regarding a weapon used (sharp panga at page 117; blunt at page 119) could be material, as it questions injury causation. Furthermore, we know that the first place to report the incident is at the police station where the victims reported not to know the assailants. For that reason, what was reported to the doctor that the assailants are known is doubtful. The contradictions are many and raises doubts on the identification of the appellants at the crime scene. We thus find the second ground has merit too. In the up shot, after having carefully examined the record of appeal and heard the parties' submissions, we are satisfied that the first and the second grounds of appeal are meritorious, the appellants were indeed not properly identified by PWl and PW2. The witnesses also lacked credence 15

and contradicted themselves in their testimonies. These deficiencies were compounded with the prosecution's failure to call material witnesses. Consequently, we allow the appeal, quash the conviction and set aside the sentence imposed upon the appellants. We proceed to order their immediate release from custody unless held therein for any other lawful cause. DATED at MUSOMA this 8th day of October, 2025. Judgment delivered this 8thday of October, 2025 in the presence of Mr. Daud John Mahemba, learned counsel for the Appellants and Mr. Jonas Samwel Kivuyo, learned State Attorney for the Respondent/Republic, Stella Mlaponi, 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