Francis Thomas Thoma vs Republic (Criminal Appeal No. 135 of 2021) [2024] TZCA 1249 (11 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: WAMBALL J.A.. MAIGE, J.A. And RUMANYIKA, J.A.^ CRIMINAL APPEAL NO. 135 OF 2021 FRANCIS THOMAS TH O M A ..................................................... APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Galeba, J.) Dated the 15th day of January, 2021 in Criminal Appeal No. 115 of 2020 JUDGMENT OF THE COURT 28th November & 11th December, 2024 WAMBALL J.A.: The District Court of Musoma convicted the appellant of the offence of armed robbery after it made a finding that he had contravened the provisions of section 287A of the Penal Code, Cap 16, and sentenced him to thirty (30) years imprisonment in jail in Criminal Case No. 68 of 2019. The particulars in the charge alleged that, on 25th December, 2018, at Majita road within the District and Municipality of Musoma in Mara Region, the appellant stole a mobile phone make

TECNO C9 valued TZS. 350,000.00, the property of one Mnubi Vicent. It was further alleged that immediately before and after such stealing, the appellant used a knife to injure the victim in order to take and retain the alleged property. In support of the allegation, at the trial, Mnubi Vicent (PW1), testified that on the fateful date, that is, 24th December, 2018 at 22:00 hours, he was at Majita road where he met the appellant who asked for a ride on a motorcycle, he was riding to Taratibu Guest House. PW1 testified that as he knew well the appellant, he agreed and when they reached near the respective place, the appellant borrowed his mobile phone to communicate with his fellow, but he could not succeed as there was no response from the other side. PW1 then decided to go back home and was accompanied by the appellant. PW1 testified further that, suddenly, the appellant stabbed him with a sharp object and as a result, he could not control the motorcycle and ultimately, they both fell down. The appellant threatened to stab him further if he did not surrender the money he had in possession of. While PW1 was still lying on the ground, the appellant forcefully took his mobile phone and TZS. 13,000.00. It was further alleged that as the appellant still demanded for more money, PW1 promised to give him later. The

appellant then took his mobile phone green in colour with a Vodacom chip and gave it to PW1 for the purpose of communicating with him later when he obtained the money. PW1 and the appellant then left the place whereby the appellant was dropped at Nyasho Kibini while PW1 proceeded to his home. Later, PW1 reported the incident at the police station before H. 5877 PC Nicholaus (PW2) and surrendered a mobile phone which he was allegedly given by the appellant. PW1 was given a PF3 and went to hospital for treatment where he was attended by doctor Marco Mwita Magesa (PW4) on 25th December, 2018. PW1 disclosed further that on the next day, he heard from Manyama Saguti (PW3) that he had bought a mobile phone for TZS. 50,000.00 from the appellant. Supporting the evidence of PW1, PW3 testified that on an unknown date in December 2018, the appellant approached him and requested to be given TZS 50,000.00. That, when he was given the money, he surrendered a mobile phone as a bond. Later, while PW3 was using the said mobile phone, he saw some photos belonging to PW1. PW3 therefore, surrendered it to PW1 after he was told that it belonged to him.

F. 6665 DC Hamis (PW5) investigated the case from 26th December, 2018 when he was assigned the responsibility. PW5 tendered in court a Certificate of Seizure and a mobile phone TECNO C9 Black in colour which were admitted as exhibits PE4 and PE5, respectively. In his defence, the appellant contested the allegation levelled against him by the prosecution. He testified that the case was framed up as the real dispute between him and PW1 emanated from a quarrel over a girl called Grace. To demonstrate that the allegation was fabricated, he said that, though the incident is alleged to have occurred in December 2018, he was arrested on 18th May, 2019 at his home. At the conclusion of the trial, the trial Resident Magistrate was satisfied that the prosecution case was proved beyond reasonable doubt. He thus convicted and sentenced the appellant as intimated above. The appellant's first appeal to the High Court in Criminal Appeal No. 115 of 2020 was dismissed in its entirety. Still dissatisfied, he has appealed to the Court. The appellant's memorandum of appeal contains eight grounds of appeal. However, at the hearing, it was apparent that the determination of the appeal

revolved around a single compressed ground, on whether the prosecution case was proved beyond reasonable doubt. Hearing of the appeal proceeded in the presence of the appellant in person, and Ms. Mwajabu Tengeneza and Ms. Happiness Machage, learned Principal State Attorney and State Attorney, respectively who appeared for the respondent Republic. In support of the appeal, the appellant urged us to consider his complaints on the variance between the charge and the evidence on the record and the contradictions in the evidence of the prosecution witnesses. In his view, the variance and contradictions weakened the prosecution case to the extent of rendering the allegation levelled against him unfounded. In this regard, he implored us to allow the appeal and set him free. It is noteworthy that, though Ms. Tengeneza had initially contested the appeal, upon careful consideration of the evidence on the record, she readily conceded that the prosecution case was not proved beyond reasonable doubt. She expounded that, there is variance between the evidence of PW1 in respect of the date of the commission of the offence and the particulars in a charge. She also conceded that, 5

though the particulars did not indicate that the suspect stole TZS. 13,000.00. on the fateful date, PW1 testified that the appellant robbed him the said amount. She added that, while the charge simply indicated that the stolen mobile phone was TECNO C9 without mentioning its colour, PW1 testified that its colour was silver. In the circumstances, Ms. Tengeneza argued that, considering the evidence of PW1 and the particulars in the charge, there is an apparent variance which has to be resolved in favour of the appellant. In the end, she prayed that the appeal be allowed. We entirely endorse the complaint of the appellant concerning the variance between the charge and the evidence on the record which was readily supported by the learned counsel for the respondent Republic. It is apparent that, while PW1 who was at the scene of the crime emphasized that the incident occurred on 24th December, 2018, the charge indicates that it was on 25th December, 2018. It is noted that the later date was supported by PW2 though the appellant had insisted on the former date. Moreover, the evidence of PW1 and PW2 that on the fateful date the appellant also robbed TZS. 13,000.00 from the PW1, is not apparent in the charge. We also affirm the variance concerning the exact colour of the mobile phone which was allegedly

robbed from PW1. Indeed, while PW1 stated that the stolen mobile phone was TECNO C9 with a silver colour, the charge does not indicate its colour. Interestingly, though in his testimony, PW5, the investigator, did not disclose both the make and colour of the mobile phone which he received from PW1 on 26th February, 2019 and filed the certificate of seizure (exhibit PE4), the trial court in its order admitting it after it was tendered, indicated the make of the mobile phone as TECNO black. Therefore, from the evidence on the record, the exact make and colour of the mobile phone which the appellant allegedly was robbed from PW1 is not clear. At this juncture, we have no hesitation to state that it was crucial for the prosecution through PW1 to demonstrate that, the mobile phone stated in the charge was the one which was produced and admitted in court at the trial. Basically, PW1 had the obligation to provide a proper description of the alleged stolen mobile phone. In Shaban Hussein @ Makora and Another v. The Republic (Criminal Appeal No. 287 of 2019) [2020] TZCA 1897 (16 December 2020, TANZLII), the Court stated that: "It is settled that properties suspected to have been stolen should be identified by the complainant who must avail the terms of

description of the stolen item. This is crucial because in a criminal charge, it is not enough to make a generalized description of the property". [See also Moses Edward v. The Republic (Criminal Appeal No. 599 of 2017) [2021] TZCA 744 (2 December 2021, TANZLII]. Moreover, with regard to the evidence which is not consistent with the items stated in the charge, in Issa Mwanjiku @ White v. The Republic (Criminal Appeal No. 175 of 2018) [2020] TZCA 1801 (6 October 2020, TANZLII), the Court stated as follows: "We note that, other items mentioned by PW1 to be among those stolen like, ignition switches of tractor and Pajero were not indicated in the charge sheet In the prevailing circumstances of this case, we find that the prosecution evidence is not compatible with the particulars in the charge sheet to prove the charge to the required standard" In the case at hand, the holding of the Court applies to the evidence of PW1 and PW2 regarding the colour of the mobile phone and the stolen money, TZS. 13,000.00, which were not indicated in the charge laid against the appellant.

We must emphasize that whenever there is variance between the charge and the evidence on the record, an amendment should be made, in term of section 234 (1) of the Criminal Procedure Act, Cap 20 (the CPA). More importantly, failure to amend the charge is fatal and renders the prosecution case to have not been proved to the required standard. The decisions of the Court in Mohamed Juma @ Mpakama v. The Republic [2019] T.L.R.514; (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 February, 2019, TANZLII) and Abel Masikiti v. The Republic (Criminal Appeal No. 24 of 2015) [2015] TZCA 500 (24 August 2015, TANZLII) demonstrates the settled position. In the latter case, the Court particularly stated: "If there is any variance or uncertainty on the dates, then the charge must be amended in terms o f section 234 of the CPA. I f this is not done, the preferred charge will remain unproved and the accused shall be entitled to acquittal" We also affirm the above stated position in the case at hand because, despite the variances exposed above, no amendment was made to the charge to bring it in conformity with the evidence on the record.

On the other hand, we find justification on the complaint of the appellant regarding the contradictions between the evidence of PW1, PW2, PW3 and PW5 in respect of the make and colour of the mobile phone which was allegedly given to PW1 by the appellant on the date of the incident. We note that, while PW1 simply stated that the colour of the said mobile phone was green and that it had a Vodacom chip without stating its make, PW2 and PW5 simply stated that it was NOKIA. On the other hand, though at the trial PW2 tendered a Certificate of Seizure and the said mobile phone without mentioning and describing its colour, the trial court admitted the same as exhibits PEI and PE2, respectively and indicated that the mobile phone it had green colour. Moreover, contradictions concerning the handling of the stolen mobile phone eroded the prosecution case. In this regard, though PW1 testified that the said mobile phone was recovered from PW3 on the next day, PW3 stated that it was in December 2018 without mentioning the date. To the contrary, PW5 testified that he obtained the said stolen phone on 26th February, 2019. In the circumstances, we hold that the apparent contradictions went to the root of the case because if PW1 obtained the mobile phone from PW3 on 25th December, 2018, why was it handed to PW5 on 26th February, 2019. This casts doubt on the

credibility of both PW1 and PW3. To this end, the contradictions are material and dented the prosecution case. All in all, the variance between the charge and the evidence on the record left the allegation against the appellant and the charge of armed robbery not proved beyond reasonable doubt. In short, theft being an important ingredient of the offence of armed robbery had to be proved sufficiently to ground the conviction of the appellant. In Mshewa Daudi v. The Republic (Criminal Appeal No. 56 of 2018) [2020] TZCA 368 (30 July 2020, TANZLII), the Court stated: "To say the least ; robbery is stealing in which violence is employed by the accused to the person o f the complainant so as to retain the thing stolen. And, armed robbery is committed when the accused who, at or immediately after the time o f stealing is armed with any dangerous or offensive weapons or instrument and uses the same to threaten violence on the person o f the complainant or is in the company o f one or more persons. On that account, where stealing/theft is not proved, like in the present case, the offence of armed robbery cannot stand". [Emphasis added]

In the circumstances, we hold that the prosecution case was not proved beyond reasonable doubt contrary to the findings of both the trial and first appellate courts. We thus allow the appeal based on a single compressed ground. Consequently, we quash the conviction and set aside the sentence imposed on the appellant. Ultimately, we order that the appellant be released from custody immediately if he is not otherwise held for other lawful causes. DATED at MUSOMA this 10th day of December, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 11th day of December, 2024 in the presence of appellant in person, and Mr. Zarubabel Ngowi, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL