Hassan Mohamed Chuwa vs Republic (Criminal Appeal No. 346 of 2021) [2024] TZCA 774 (20 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI ( CORAM: LEVIRA. J.A., GALE BA. 3.A, And ISMAIL 3.A /) CRIMINAL APPEAL NO. 346 OF 2021 HASSAN MOHAMED CHUWA ............... ...... .... ........... ..APPELLANT VERSUS THE REPUBLIC..... ....... ..... ......... ......... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) (Mwenempazi, 3.) Dated the 27th day of April/ 2021 in Criminal Appeal No. 5 of 2020 JUDGMENT OF THE COURT 9th & 2CP August2024 GALEBA, J.A.: Hassan Mohamed Chuwa, the appellant in this,appeal, was arraigned before the District Court of Moshi, in Criminal Case No. 499 of 2018, on a charge of armed robbery, contrary to section 287A of the Penal Code. According to the particulars of offence in the charge sheet, it was alleged that on 13t h November, 2018, at Kiusa Korongoni area within Moshi Municipality in Kilimanjaro Region, the appellant, stole an NMB Bank ATM card, a National Identification Card, TZS. 140,000.00 and one handbag, all being the properties of one Lilian Enock Kimario (PW2). It was also stated in the charge that, immediately before stealing the above items, the

appellant threatened the said PW2 and one Rose Sadikiel Masue (PW3), with a sword in order to retain the loot. The material facts of the case are that on 13th November, 2018 at around 20:00 hours in the night, PW2 and PW3 were walking home from work. When they reached at a place near Isiolo Lodge in Moshi town, they saw a motorcycle with a rider and a passenger on it, coming at high-speed towards them from the opposite direction, with full lights on. Upon getting nearby, the motorcycle suddenly stopped and parked very close to them. The passenger who was holding a machete disembarked from the motorbike, threatened PW2 with the said weapon, and managed to snatch her handbag which was hanging from her shoulder, and disappeared. Amidst the confusion, following the robbery, PW2 heard PW3 tussling with someone while screaming, "/ will not let you escape! I will not let you escape.". She rushed to PW3 and found her struggling with the person who was riding the motorcycle. This person, like the first robber who had robbed PW2, had a weapon; he had a machete. Nonetheless, PW2 offered assistance to PW3 and together with passing by pedestrians, the person was apprehended. Then the police arrived and he was handed over to them. It turned out that this person, who did not manage to escape from the scene of the crime was the appellant in this appeal.

Based on the above facts, the appellant was charged with armed robbery as indicated above. Although he denied to have been involved in the robbery, the trial court found him guilty and sentenced him to thirty years imprisonment. His first appeal to the High Court (the first appellate court) in Criminal Appeal No. 5 of 2020 was dismissed, and he was aggrieved. To contest the dismissal of his first appeal, the appellant lodged this appeal, raising a total of ten grounds of appeal; six in the substantive memorandum, and four, in the supplementary memorandum of appeal. Due to the nature of the reaction of the respondent's side at the hearing before us, we will not reproduce the said grounds of appeal in this judgment. At the said hearing of appeal, the appellant appeared in person without legal representation, whereas the respondent Republic had the services of Mr. Philbert Mashurano, learned State Attorney. At the very outset, the learned State Attorney, informed the Court that the respondent was supporting the appellant's appeal, because the charge was not in harmony with the evidence that was tendered to support it. According to the learned counsel, the charge against the appellant was not proved beyond reasonable doubt. 3

In arguing that point, Mr. Mashurano contended that, whereas the charge sheet indicated that the scene of the crime was at Kiusa Korongoni area within Moshi Municipality, the evidence referred to two other different locations in Moshi town to be the scenes of the same crime. In supporting his contention, the learned counsel referred us to the evidence of No. F. 5855 D/C Abdon (PW1), PW2 and PW3 which referred to Dar es Salaam Street near Isioio lodge and the junction of Benbella and Mafuta streets, as the scenes of the crime. Another difference between the charge and the evidence, was the nature of items which were stolen from PW2, Mr. Mashurano contended. He argued that, whereas the charge sheet mentions NMB Bank ATM card, a National Identification Card, TZS. 140,000.00 and one handbag to be the items that were stolen from PW2, PWl testified that the items which were stolen were a purse, money and a telephone, and PW2 mentioned only a handbag. In connection to the above two variances between the evidence and the charge, Mr. Mashurano, highlighted two more points. First, he argued that, throughout the evidence of the prosecution, there is no witness who testified to the effect that Kiusa Korongoni, Dar es Salaam Street, and Benbella and Mafuta Streets referred to on and the same location. Second, he added, since the charge was at discord with the evidence, the

prosecution had an opportunity under section 234 (1) of the Criminal Procedure Act, (the CPA), to amend the charge, in order to bring it to terms with the evidence, but that chance was not taken advantage of, such that the variances between the charge and the evidence pointed out above, remained to be the status quo up until when the appellant was convicted. Such a conviction, according to the learned counsel, was illegal, and implored us to quash it and set aside the decisions of both the trial and the first appellate courts with a resultant effect of acquitting the appellant. On his part, the appellant was in full agreement with the learned State Attorney, and prayed that he be acquitted and set free from prison. In this appeal, we are called upon to determine an issue whether the charge was indeed at variance with the evidence, and if so, whether the conviction was lawful, in the circumstances. We will start with the law applicable, in circumstances where a charge is at variance with the evidence. The relevant provision of the law is section 234 (1) of the CPA, as highlighted by Mr. Mashurano. That provision states: "234,-(l) Where at any stage of a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration o f the charge either by way o f amendment o f the charge or by substitution or addition of a new

charge as the court thinks necessary to meet the circumstances o f the case unless, having regard to the merits o f the case, the required amendments cannot be made without injustice; and aii amendments made under the provisions of this subsection shaii be made upon such terms as to the court shaii seem ju s t" First, we agree with the submission of the learned State Attorney that there were clear variances as regards the scene of crime, and the items that were robed from PW2. Second, we wish also to affirm that no amendment was sought or done to the charge as per the above quoted law. We will then revisit a few decided cases in order to appreciate what has this Court been deciding in similar encounters. Issa Mwanjiku @ White v. R, Criminal Appeal No. 175 of 2018 (unreported) the Court dealt with a situation where the charge sheet was at variance with the evidence in relation to the type of properties which were alleged to have been stolen from the compiainant PW1 during an incident of robbery like in the cases before us. The Court stated: "We note that, other items mentioned by PW1 to be among those stolen like, ignition switches o f tractor and Pajero were not indicated in the charge sheet In the prevailing circumstances o f this case, we find that the prosecution evidence is not compatible with the 6

particulars in the charge sheet to prove the charge to the required standard ," There are many more cases decided by this Court on the above subject, including; Killian Peter v. R, Criminal Appeal No. 508 of 2016 and; Abel Masikiti v. R, Criminal Appeal No. 24 of 2015 (both unreported). The legal principle we gather from the case of Issa Mwanjiku (supra), and apply in this appeal, is that in cases of armed robbery, where the stolen items are mentioned or listed in the charge sheet, evidence must be led to prove that such items were indeed, stolen. In this case, the charge sheet indicated that four items were stolen. The items were an NMB Bank ATM card, a National Identification Card, TZS. 140,000.00 and one handbag. As for the evidence however, each of the three witnesses who testified on what was stolen, had his or her own story on that aspect. The evidence of PW1 indicated that, the items stolen were three, namely, a purse, money inside that purse and a telephone. As for PW2, who was the victim of the robbery, her evidence was that a single item was stolen from her; the handbag. In the circumstances, we are settled in our mind that the charge and the evidence were at variance. As demonstrated earlier on, the above variance is not the only one. Whereas the charge shows that the offence was committed at Kiusa Korongoni, no witness mentions either Kiusa or Korongoni or both. PW1

mentioned two distinct locations; he mentioned Dar es Salaam Street near Isiolo lodge and he mentioned also the scene of the crime to have been at Benbella and Mafuta Streets. That was not all, PW2, the victim and her friend PW3, mentioned the scene of the crime to be near Isiolo lodge. The principle of law is that, where a person is charged to have committed an offence at a particular place, evidence must be led to demonstrate that, indeed, the offence was committed at that place, short of which the charge remains unproven. Luckily, it is not the first time that we are so holding. After having faced a similar difficulty, in the case of Noel Gurth Bainth & Another v. R, Criminal Appeal No. 339 of 2013 (unreported), this Court observed as follows: "... where there is a variation in the place where the alleged armed robbery took place, then the charge must be amended forthwith. I f no amendment is effected, the charge will remain unproved and the accused shall be entitled to an acquittal as a matter of right Short o f that a failure o fjustice will occur." In this appeal, we agree with the learned State Attorney that, the scene of the crime mentioned in the charge, materially differ with various other places mentioned in the evidence. Thus, we are settled in our mind that, there was variance between the charge and evidence.

Based on the above findings, we are satisfied that the charge against the appellant was not proved beyond reasonable doubt. Consequently, we allow the appeal, quash the appellant's conviction and set aside his sentence of 30 thirty years imprisonment. Finally, it is hereby ordered that the appellant shall be released immediately from prison, unless he is held for any other lawful cause. DATED at MOSHI this 19th day of August, 2024. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 20th day of August, 2024 in the presence of the Appellant in person - unrepresented and Mr. Innocent Ng'assi, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL