Yusuph Ramadhani @Chondoma vs Republic (Criminal Appeal No 35916 of 2024) [2026] TZHC 3058 (3 June 2026)

Page 1 of 14 IN THE HIGH COURT OF TANZANIA [DAR ES SALAAM SUB-REGISTRY] AT DAR ES SALAAM CRIMINAL APPEAL NO 35916 OF 2024 (Originating from the Decision of the Resident Magistrate Court of Kivukoni at Kinondoni in Criminal Case No. 229 of 2024) YUSUPH RAMADHANI @CHONDOMA…………..................………….. APPELLANT VERSUS REPUBLIC……….……………………………………..……….……………. RESPONDENT JUDGMENT 13 th February & 03 rd June, 2026 BWEGOGE, J. The appellant herein was arraigned before the Resident Magistrates’ Court of Kivukoni, at Kinondoni, in Criminal Case No. 229 of 2024, on a charge of armed robbery contrary to section 287A of the Penal Code [Cap 16 R.E 2022] (now R.E. 2023). The particulars of the offence alleged that on 30 th December 2024 at Mburahati Festini area, within Ubungo District, in Dar es Salaam Region, the appellant stole a motorcycle, make Bajaj Boxer with registration No. MC 267 EDD valued TZS 2, 850,000/=, the property of

Page 2 of 14 Richard Mrehamu. It was also alleged that immediately before such stealing, the appellant stabbed one Bryan Peter (victim) with a knife to obtain and retain the stolen property. Eventually, the trial court convicted the appellant as charged and sentenced him to serve thirty (30) years in prison. The brief factual background of this case is thus: On 30 January, 2024, at about 23:00 hrs, Bryan Peter (PW1) took over a shift riding a motorcycle taxi with registration number MC 267 EDD from his friend, Dadi Said. Hassan Ismail Issa (PW3), the registered owner of the motorcycle, assigned it to Dadi Said for commercial taxi operations. On that fateful night, PW1’s friend, namely, Richard Richard (PW2), requested PW1 to ferry the appellant herein and his two companions to the ascertained destination. PW1 had carried the trio on his motorcycle. Upon PW1 reaching the destination pointed out by his passengers, the same suddenly turned against him. They allegedly manhandled him, searched his pockets, and repeatedly stabbed him with a sharp object on different parts of his body. Consequently, PW1 yielded to his attackers. The assailants managed to rob him of his mobile phone make Samsung S10X valued 380,000/=, cash amounting to TZS 100,000/=, and the respective motorcycle. PW1 received help from good Samaritans who escorted him to Mburahati Police Station, where he lodged his complaint and

Page 3 of 14 was issued with a PF3 for medical care. He was later on attended to by Dr Fredy Munyuku (PW4) and recovered from injuries sustained. On 19 February, 2024, the victim (PW1) and his friend (PW2) managed to trace and arrest the appellant herein and sent him to the police station. After the completion of the investigation, the appellant herein was charged and arraigned in the trial court. Upon completion of the trial, based on the evidence adduced by the prosecution, the trial court found the accused guilty as charged and sentenced him accordingly. The appellant was aggrieved by the conviction and sentence entered by the trial Court. Hence, this appeal. Initially, the appellant raised four (4) grounds of appeal. Later on, he advanced an additional fifth ground of appeal in his written submission. In substance, the grounds of appeal preferred by the appellant boil down mainly to three grounds as rephrased hereunder:

1. There was a variance between the charge and the evidence adduced by the prosecution.
2. The learned trial magistrate misdirected himself in convicting the appellant based on weak identification evidence.
3. The prosecution failed to prove the case beyond a reasonable doubt.

Page 4 of 14 The appellant fended for himself, whereas the respondent Republic was represented by Ms Theresia Mtao, learned state attorney. On leave of this court, the appeal was argued by written submissions. In substantiating his appeal, the appellant commenced with his additional ground of appeal, alleging that there was material variance between the charge sheet and the evidence adduced by the prosecution during the trial. He argued that the charge sheet alleged that the stolen property was merely the motorcycle with registration number MC 267 EDD, Bajaj Boxer, valued at TZS 2,850,000, belonging to one Hassan Ismail Said. However, during the trial, PW1 deponed that he was also robbed of his mobile phone make Samsung S10 X worth TZS 380,000, cash money to the tune of TZS 100,000/=, and the motorcycle. Thus, the appellant contends that the evidence pertaining to the additional stolen properties amounts to a material variance between the charge and the evidence adduced in the trial court. The appellant opined that the prosecution ought to have sought an amendment of the charge sheet to align it with the evidence adduced. Failure to do so, the appellant asserted, rendered the charge defective and prejudiced the appellant. To bolster his position, the appellant referred to the decision in Masasi Mathias vs. Republic , Criminal Appeal No. 274 of

Page 5 of 14 2009, CA (unreported), wherein it was held that material variance between the charge and the evidence, if not cured by amendment, renders the charge defective. Respecting the second and third grounds of appeal, the appellant opted to argue them conjointly, asserting that they amount to a single ground in that the prosecution failed to prove the case beyond reasonable doubt. The appellant asserted that the conviction was unsafe on account of the unreliability of the identification evidence. He argued that his purported identification at the crime scene was questionable since the incident occurred during the night. Although PW1 stated that there was light which aided him in the identification of the appellant, he did not give details as to the intensity of the purported light. It was therefore submitted that the absence of such crucial particulars rendered the identification evidence doubtful and unsafe for reliance. To strengthen his position, the appellant cited the case of Juma Ally Mustapha vs. Republic , Criminal Appeal No. 193 of 2018, CA (unreported), wherein it was emphasised that identification evidence obtained in difficult lighting conditions must be treated with great caution.

Page 6 of 14 Conclusively, the appellant asserted that the prosecution failed to discharge its burden of proving the case beyond a reasonable doubt based on two main grounds: One , the prosecution's case was pregnant with material variance between the charge sheet and the evidence adduced; and two, the identification evidence adduced by the victim was unreliable and unsafe. Hence, the appellant asserted that the prosecution's case was not proved to the required legal standard. Accordingly, the appellant prayed that the appeal be allowed in its entirety. Ms Mthao, the respondent’s counsel, vehemently opposed the appeal herein. Replying to the submission in chief pertaining to the complaint, in that there was a variance between the charge sheet and evidence adduced, she maintained that not every variance in the charge sheet and evidence is fatal to the prosecution's case. Referring to the provision of section 388 of the Criminal Procedure Act, the counsel argued that variance becomes fatal if the irregularity or error goes to the root of the charge sheet, and the appellant must show that the act prejudiced him and/or led to the miscarriage of justice. To cement her position, the counsel cited the cases: DPP vs. Morgan Maliki & Others [1980] TLR 49, and Mussa Shabani Issa and Another vs Republic, (Criminal Appeal No. 11 of 2010) [2012]

Page 7 of 14 TZCA 323 wherein the court emphasised that the variance between the charge sheet and evidence adduced will not vitiate the conviction where the variance is minor and does not mislead or prejudice the accused. The counsel was of the view that the heart of the charge was that the appellant was armed with a dangerous weapon during the commission of the offence, and he gained possession of stolen property (motorcycle) by violence. Hence, the other items the victim claimed to have been allegedly stolen on the fateful night he was robbed have nothing to do with the charge sheet. Therefore, the accused was not prejudiced in any way. The counsel prayed that the relevant ground of appeal be dismissed for lacking merit. Respecting the remaining grounds of appeal which the appellant argued conjointly, the counsel replied as follows: Pertaining to the complaint that the evidence of visual identification adduced by the appellant was weak and unreliable, the counsel contended that the accused person was well known by PW1 prior to the incident. Hence, since the appellant was familiar with the victim, the identification evidence was watertight. To strengthen her position, she referred to the case of Marwa Wangiti Mwita & Another vs Republic [2002] TLR 39 (CAT), and Raymond Francis vs Republic [1994] TLR 100. Moreso, the counsel asserted that the victim had deponed

Page 8 of 14 that there was sufficient light to enable identification of the offenders in the area where he picked the appellant and his accomplices. Otherwise, the counsel opined that failure by the witness to describe the intensity of the light is not fatal if the circumstances were conducive to enable proper identification and the description of the offender. The case of Said Ally Ismail vs. the Republic , Criminal Appeal No 249 of 2018, CA (unreported) was cited to buttress the point. Finally, the counsel asserted that the prosecution’s case in the trial court was proved beyond reasonable doubt. Hence, the appeal herein is baseless. She prayed that the appeal herein be dismissed in its entirety. In rejoinder, the appellant recapitulated his submission in chief and prayed for his appeal to be allowed. Having carefully considered the grounds of appeal, the court record and the submissions made by the counsel for the parties hereto, I apprehend that there are mainly two issues for determination by this court, as hereunder mentioned:

1. Whether there existed material variance between the particulars contained in the charge sheet and the evidence adduced by the prosecution during the trial.

Page 9 of 14 2. Whether the evidence of visual identification adduced by the prosecution witnesses eliminated all possibilities of mistaken identification to render such evidence water-tight to justify the conviction entered. I proceed to delve into the first and pertinent ground of appeal in this case. The appellant alleges that there was variance between the charge sheet and the evidence adduced by the prosecution, specifically, the evidence adduced by PW1. In substance, the appellant's contention is hinged on the mainstay that the particulars of offence with respect to the charge sheet preferred against him alleged that he stole the motorcycle from the victim (PW1). However, the victim (PW1) deponed that apart from the motorcycle, he was likewise robbed of one cellular mobile phone and cash to the tune of TZS 100,000/. Upon the scrutiny of the record of the trial court, I admit that the victim mentioned to have been robbed of several properties, i.e., mobile phone, petty cash and motorcycle. However, the prosecution preferred to arraign the appellant only with respect to the valuable property namely, the motorcycle, and discarded the other two items allegedly robbed from him. Foremost, it is settled law in this land that a charge should contain a statement of the specific offence the accused stands charged with and sufficient information to reasonably enable him to understand the nature of

Page 10 of 14 the charge preferred against him and prepare his defence, in terms of section 135 of the Criminal Procedure Act [Cap 20 R.E. 2023]. See in this respect the case of Remina Omary Abdul vs. Republic (Criminal Appeal No. 189 of 2020) [2022] TZCA 118, wherein the Court opined: “In the first place, we are alive to the mandatory requirement under section 132 of the CPA that every charge shall contain not only a statement of the specific offence with which the accused is charged but also such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. This requirement hinges on the fact that in a criminal trial, a charge is the foundation of any trial against an accused person. (See M ussa M w aik unda v. R [2006] T. L. R. 387). Accordingly, in order to give the accused a fair trial, the particulars should be informative enough so as to enable him to align a proper defence. They must allege the essential facts (ingredients) of the offence required by law.” Given the decision revisited above, it is the law that, usually, the trivial discrepancies between the charge and the evidence presented in court are not necessarily fatal to the case, provided the accused is not misled or prejudiced in his defence. It is likewise the law that the variance must not be so significant as to render the actual offence vague to the extent of impeding the offender’s right to be informed of the nature of the charge against him to enable him to make an arduous defence. See the case of Sylvester Stephano vs. Republic (Criminal Appeal 527 of 2016) [2018]

Page 11 of 14 TZCA 306 on page 9; and Vumi Liapenda Mushi vs. Republic (Criminal Appeal No. 327 of 2016) [2018] TZCA 197 [TanzLII], on page 7. Suffice it to say that not every contradiction in the prosecution case would adversely vitiate the proceedings, but only material and relevant contradictions. See in this respect the case of Said Ally Ismail vs. Republic, Criminal Appeal No. 249 of 2008, CA (unreported). The question is whether the alleged variance was material to have prejudiced the appellant herein. Having scrutinised the proceedings of the lower court, I found that the appellant faced the charge of armed robbery. He was alleged to have robbed the victim of his motorcycle, which he was in possession of. And the appellant made a defence with respect to the relevant accusation in the charge sheet, not otherwise. And, finally, the trial court convicted the appellant of robbing the victim of the motorcycle in his possession. Hence, the slight difference in the number of items allegedly stolen as deponed by the victim against the particulars of the offence, which mentions only valuable property (motorcycle), in my opinion, didn’t prejudice the appellant in any way in understanding the charge or preparing his defence. The alleged variance is a minor one which doesn’t vitiate the proceedings in question. I apprehend that the only reasonable explanation for the alleged omission on

Page 12 of 14 the part of the prosecution was the apparent difficulty in proving that the appellant herein likewise robbed the victim of such additional properties, apart from the motor bicycle. I, therefore, answer the first issue in the negative. That said, the first ground of appeal is found without substance. At this juncture, I proceed to tackle the second and equally pertinent issue herein on whether the evidence of visual identification adduced by the prosecution was watertight to justify the impugned conviction. Primarily, I admit that the prosecution's case in the trial court was buttressed by the testimonies of two key witnesses, namely PW1 and PW2. It is trite law in our jurisdiction that the evidence of visual identification is considered to be fundamentally frail and, consequently, the weakest kind. Thus, such evidence should not be acted upon unless all possibility of mistaken identification is eliminated and the court is fully satisfied that the evidence before it is water-tight. See, among others, the cases: Waziri Amani vs. Republic [1980] TLR 250; Raymond Francis vs. Republic [1994] T.L.R. 100 ; and Hassani Saidi & Another vs. Republic (Criminal Appeal No. 44 of 2002) [2006] TZCA 193 . Now, I am bent on assessing whether the prosecution's case in the trial court passed the scales of justice mentioned above to justify the impugned conviction entered by the trial court.

Page 13 of 14 Having anxiously revisited and evaluated the entire proceedings of the trial court, I find that the evidence adduced by PW1 clearly demonstrates that, even though the incident occurred at night, the appellant and his accomplices were not strangers to PW1, since, before the alleged incident, the appellant knew them all, as previously they used to while time at Kigogo Randa Bar. Moreso, PW2, who requested PW1 to fell the appellant and his accomplices, likewise, knew them very well. The fact that it was PW1 and PW2 who succeeded in tracing and arresting the appellant speaks volumes about the fact that the duo knew the appellant well. The law is settled that recognition is more reliable and dependable than the identification of a stranger [ Jamal Seif vs. Republic (Criminal Appeal No. 378 of 2023) [2025] TZCA 231 on page 8]. Therefore, I am satisfied that the evidence of visual identification adduced by PW1 and PW2 eliminates the possibility of mistaken identity. Hence, the trial court relied on credible evidence in arriving at the conclusion that the appellant was correctly identified as the accomplice to the alleged criminal enterprise, namely armed robbery. It follows, therefore, that the prosecution proved beyond reasonable doubt that the appellant herein took part in robbing PW1 of the motorcycle entrusted to him by his friend. That said, I would answer the second issue

Page 14 of 14 in the negative as well. Accordingly, the second and third grounds of appeal likewise collapse. Given the foregoing reasons I endeavoured to give, I find the appeal herein devoid of merit. The appeal is hereby dismissed. And the conviction and sentence of the trial court are hereby upheld. I so order. DATED at DAR ES SALAAM, this 03 rd June, 2026. O. F. BWEGOGE JUDGE