IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

fCORAM: LILA. 3.A. KOROSSO. 3.A And SEHEL, J.A.^

CRIMINAL APPEAL NO. 174 OF 2018

SHADRACK MESHAKI M ADIGA..........................................................APPELLANT

VERSUS
THE REPUBLIC......... ........................... ......... ................................RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Dar Es Salaam)

(Phillip. :n

dated the 9th day of July, 2018.

In
Criminal Appeal No. 302 of 2016.

JUDGMENT OF THE COURT

14th August, & 6th Oct, 2020

LILA, J.A.:

The appellant, Shadrack Meshaki Madiga, was arraigned before the

District Court of Temeke of the offence of armed robbery contrary to

section 287A of the Penal Code Cap. 16 R.E 2002 as amended by Act No. 3

of 2011. It was alleged that, on 15th December, 2013 at Mbagala Kongowe

area within Temeke District in Dar es Salaam Region, he did steal a motor

Page 1 of 41
vehicle with Registration No. T 902 CHR make Suzuki Carry (henceforth the

stolen car) valued at TZS 7,500,000.00 the property of one Rogartius Urasa

and immediately before such stealing did use a panga to threaten one

Omary Hemed Mshamu in order to obtain the said stolen property. He

denied the charge. Trial ensued and after a full trial, he was convicted and

sentenced to serve thirty (30) years imprisonment. His first appeal to the

High Court was dismissed, hence this second appeal to this Court against

both conviction and sentence.

The brief facts of the case as can be gleaned from the record of

appeal are as follows; Omari Mshamu (PW2) was a driver employed by

Deogratius Urassa (PW6) to drive for transport business his motor vehicle

with Registration No. T902 CHR Suzuki Carry. He used to park the motor

vehicle at Manzese. According to him, on 15/12/2013 at around 1830hrs he

was approached by two people who were in a motorcycle and one of them

told him that they had timber to transport from Manzese to Kongowe-

Mbagala. After a brief negotiation, they agreed about the fare. They then

went to where the timber was; loaded them in the car and a journey to

Mbagala began. The one who hired him sat with him at the front cabin and

Page 2 of 41
the other person followed them using the motorcycle. As it was already

late, PW2 picked one Seleman to accompany him in that trip. On the way,

the guy who was sitting with PW2 instructed him (PW2) to stop the vehicle

at Kizuiani where they picked a person he said was a mason. That person

had a sulphate bag. The journey proceeded.

Upon arrival at Kongowe, he (PW2) was again directed to stop so as

to carry other persons who would help them to offload the timber as there

was a long distance from the road to where the timbers were to be

offloaded. He refused to stop claiming that those in the car were enough to

do so. They proceeded with the journey taking the rough road and after a

short while he found that they were in the bushes, he decided to stop and

insisted that he would not move a step. Then it was around 2130hrs but

there was moonlight which shed light as if it was day time hence easy to

see and identify those people. As he (PW2) was about to step down from

the car, the person with the motorcycle passed and stopped his motorcycle

in front of the vehicle. Suddenly, he (PW2), received a blow from the blunt

side of the bush knife. PW2 lay down. Those people pressed him down,

tied him and used ropes to tie both his and Selemani's hands and legs.

Page 3 of 41
The appellant proposed that he be killed but the one who hired the car

stopped him. They were then carried to the bush and left there. A short

time later, PW2 managed to untie himself and Selemani using his teeth.

They walked up to the road where they narrated the story to motorcyclists

who were there and together mounted a search for the car following the

car tyre marks. The marks led them up to the football ground near

goalposts at Mbande Rufu whereat they found the robbed car parked. They

invaded the car and thieves ran away and were chased by other people

while PW2 and Seleman remained. A short time later they saw one person

coming out of the car through the driver seat and they chased him while

shouting "thief" and one person came to assist him. That person stopped

and wanted to fight PW2 but the one who turned up for help, beat that

person with a stick twice and he fell down. The person beaten turned out

to be the one who had hired PW2. Many people appeared and threw

various things onto him. Then two people who introduced themselves as

the assistant ten cell leaders appeared. That person who was arrested

named Juma White of Mtongani and Shedrack Meshaki as the ones he was

with in the robbery incident. The ten cell leader was shocked to hear the
name of Shedrack Meshaki as was a person he knew him to be the owner

of the house near where the stolen car had parked. A ten ceil leader was

called as well as the police. However, the mob around could not be

contained. They set that person to fire. Then PW2 drove the car to

Mbagala Police Station.

While that was happening where the stolen car was found, at about

OlOOhrs that very night, Antony John (PW3) who responded to the call

"thief thief" raised by PW2 got awakened from sleep and moved out with

his dog and hid himself near Songas road. Not sooner, a person on a short

and singlet appeared looking worried and was limping. Upon enquiring him,

he replied that he resided at Chamazi and his motorcycle had been stolen

at Mzinga. As he wanted to call for help, that man ran' away. There was

moonlight and was able to identify him to be his neighbor Shedrack. He

raised an alarm and nobody responded. He went to the bus stop where he

saw shedrak who told him that "Masanja nisamehe, I ran out of fuel".

While talking, again, Shedrack ran away. He (PW3) decided to call for thief

and as it was already about 0400hrs people helped him to arrest him

(shedrack). In the course he (PW3) was told that one of Shedrack's fellows

Page 5 of 41
was killed. He then took Shedrack to police post whereat he was

interviewed and, in his presence, he named his fellows in the robbery

incident including one White who was killed by mob.

When he was cross-examined by the appellant, PW3 said he knew

him before the incident as he lived in that area and that he confessed and

mentioned his fellow thieves at the police station. He said although he did

not know what he (appellant) had done; he arrested him because he was

suspicious because he ran away from him when he wanted to call fellow

"bodaboda"to assist him when he said his motorcycle was stolen.

Iddi Kapimbula (PW4), a street chairman of Rufu Street, told the trial

court that on 15/12/2013 he received a call from one Mohamed Khalid

(PW5) informing him that a certain person who was being suspected of

stealing a Suzuki Carry which was packed in the appellant's compound was

being burnt and while he was there that person was set to fire. He said he

called police who went and collected the dead body. He also said he was

informed that another person was arrested at Songas but was not killed.

He further said he went to the police station and found the appellant and

he heard him confess and named other fellows.

Page 6 o f 41
 Khalid Mohamed (PW5), a ten cell leader of the area where the

appellant resided, told the trial court that he was, on 15/12/2013 at about

OlOOhrs, awakened by alarm from the football pitch where people were

saying someone has to be set to fire. He went there and found a man not

yet burned. Upon interrogating him, that person said four of them,

including the one where the stolen car had parked, went to steal a car at

Manzese. He said the house where the car was parked belonged to the

appellant. PW5 then made a call to PW4 who called the police. That the

police turned up and carried the body of the burnt person. Then he went

back home to sleep.

When he was cross-examined by the appellant, PW5 said he did not

see the appellant but he saw the car parked in his compound which is not

fenced. He also said he did not witness the robbery incident. He said PW3

is also called Masanja.

Rogartius S. Urassa (PW6) told the trial court that he was the owner

of the stolen car with Registration No. T 902 CHR. He bought it from one

Majura Mahende or Majura Matawa at TZS 6.8 million and he tendered

both the Registration Card No. 5531807, sale agreement and the stolen car
Page 7 o f 41
which were admitted as exhibits P3, P4 and P5, respectively. He said after

being informed of his car which he was using for business and was being

driven by one Omar Mshamu (PW2) being stolen on 16/12/2013, he went

to the police station and was given the car after writing a letter requesting

for the same. E. 6221 D/Sgt Elipharesi (PW7) recorded the appellant's

confessional statement. He said the appellant told him that he, together

with other fellows, hired the car at Manzese to carry tree logs to Tuangoma

but at a place near a school they turned against the driver and his helper,

tied them with rope and threw them in the bush and then drove the car to

Mbande near Mkuranga whereat he was arrested by civilians in the

morning. However, admission of the statement as exhibit was objected. A

trial-within-trial was conducted and the ruling was reserved to be part of

the judgment. This is what the trial court said at page 30 of the record of

appeal

"Court: Ruling on adm issibility o f this exhibit sh all

be discussed in the tria l determ ination o f this su it."

Page 8 of 41
 In the said judgment, the trial court overruled the objection and

admitted the cautioned statement as exhibit P.6. This is what the learned

trial magistrate stated

"Therefore this court accepts this confession and it

is therefore adm issible before this court and it is
received as exhibit P. 6 and the court intends to reiy
on it in this judgm ent"

In his sworn defence, the appellant (DW1) vehemently denied

involvement in the commission of the offence. He claimed that while at the

railway station waiting for his wife who was expected to arrive from

Mwanza, he received a call at about OlOOhrs fron> his house maid

informing him that a certain person was being killed near his house. He

was, again, later at 0230hrs, called and told that the police had asked him

to report at Mbande Police Station which order he obeyed and personally

reported at the Police Station at 0400hrs after being informed that the train

would not come. Upon arrival at the Police station, he said, he was

arrested and stayed till 1400hrs. He was then asked by the OC-CID about

the whereabouts of one Silas something he denied having any knowledge

of. That he was beaten following instructions given by the OC-CID and
Page 9 o f 41
later taken to Mbagala Police Station. He also gave the background of the

accusation saying that he was earlier on charged twice for the same

offence and the charges were withdrawn. He tendered two charge sheets

which were admitted as exhibit D l, collectively. In all those charges, he

said, the car involved was T 902 CHR.

In respect of the prosecution evidence against him, he assailed it

stating that PW2 gave different statements respecting when he was given

the stolen car for, in his statement at the police station he said in

September but in court he said December. He also claimed that while in

the statement he said Identification Parade was conducted on 17/12/2013

but in court he said 16/12/2013. He went on to say that in the parade

people were not similar as there were fat and tall people.

Despite the appellant's denial, the trial court found the charge was

proved beyond doubt. Addressing herself on admissibility of the appellant's

confessional statement the ruling of which was deferred to the stage of

judgment, the learned trial magistrate was convinced that the appellant

was not truthful and there was no allegation of torture or ill-treatment from

the appellant in making it hence she admitted it as exhibit P.6. She was
Page 10 o f 41
also, citing the case of Michael Joseph vs Republic [1995] TLR 278,

satisfied that the facts presented by the prosecution established the

ingredients of the offence of armed robbery because PW2 was tied with

ropes and bush knives were used to threaten him. In respect of

identification, the learned trial magistrate was firm that the appellant was

identified by PW3, his neighbour who arrested him in the night of the

incident in suspicious conducts such as the fact that the stolen car was

found packed at the football ground near the appellant's house and the

time taken at the scene of robbery was sufficient enough to enable PW2

see and identify him. Generally, she was convinced that the evidence of

PW3, PW4, PW5, the appellant's confession made before PW7 and the

exhibits tendered sufficiently proved the appellant's involvement in the

robbery incident. She dismissed the appellant's defence of a lib i as being

untrue because he did not prove not being at the scene where the car was

robbed and also failed to prove that he was at the railway station. In

addition, the learned trial magistrate said the accused's defence evidence

was contradictory on the fact that at first he said he was at the railway

station waiting for arrival of his wife and later said the train never arrived.

Page 11 of 41
However, without missing a point, we think the learned magistrate did not

comprehend the appellant's evidence properly over what she said to be a

contradiction. The true position, is as demonstrated above, that the

appellant said, at the material time, he was at the Railway Station waiting

for the arrival of his wife from Mwanza and as it did not arrive, he decided

to abide by the police directive to go to police station. All the same, based

on the above findings the learned trial magistrate convicted the appellant

and sentenced him to serve a statutory jail term of thirty (30) years.

The conviction and sentence aggrieved the appellant. He appealed to

the High Court seeking to impugn the trial court's verdict. As it were, he

was unsuccessful. His appeal was dismissed in its entirety. The learned

judge concurred with the trial magistrate that there was overwhelming

evidence by PW2, PW3 and PW4 that established the appellant's guilt in

that he was properly identified at the scene of crime and he was arrested

that night and taken to the police station as opposed to his allegation that

he presented himself to the police station. In addition, she discounted the

appellant's defence of a lib i for not being credible. However, in respect of

the cautioned statement, the learned judge agreed with the learned State

Page 12 of 41
Attorney that the trial magistrate ought to have given a ruling after the

enquiry to determine whether the appellant's cautioned statement was

admissible instead of reserving it till the judgment stage. She therefore

found that the procedure adopted in admitting the appellant's cautioned

statement was flawed hence she expunged it from the record of

proceedings. We hasten to agree with the learned judge for the reason

that the appellant had the right to know whether the cautioned statement

was admissible and formed part of the prosecution evidence against him

before he rendered his defence. That would have enabled him to properly

marshal his defence against it. The course taken by the learned trial

magistrate denied the appellant that right. That was unfair. Expunging the

cautioned statement was a deserving outcome. It needs no overemphasis

that a finding (ruling) must immediately follow after enquiry and where

possible before proceeding with recording of evidence of other witnesses

and, most importantly, before the accused renders his defence.

Still aggrieved, the appellant lodged the present appeal in his quest

to fault the findings of guilt made by both courts below. He has advanced

Page 13 of 41
six long and detailed grounds of appeal which may conveniently be

paraphrased into the following grounds:-

1. The first appellate erred to hold that the appellant was properly

identified as being one of those who robbed PW2 the car.

2. The first appellate judge erred in not finding that the identification

parade was improperly conducted.

3. The first appellate judge erred in not appreciating that there were

contradictions in the witnesses' testimonies.

4. The first appellate judge erred in not finding that the provisions of

section 38(3) of the Criminal Procedure Act, Cap. 20 R. E. 2002

(the CPA) was not complied with because no certificate of seizure

was issued after the car was retrieved.

5. The first appellate judge erred in not finding that PW2, PW4 and

PW5 were not shown the car allegedly stolen for identification

purposes.

Page 14 of 41
 6. The learned first appellate judge erred in not realizing that exhibits

P3 and P4 were improperly admitted into evidence for not being

read out in court after being cleared for admission.

7. The learned first appellate judge erred in finding that the appellant

was arrested and taken to police station.

At the hearing of the appeal, the appellant who was in the prison was

linked to the Court through video facilities. On the other hand, Ms. Ester

Martin and Ms. Chesensi Gavyole, both learned State Attorneys, appeared

before us representing the respondent Republic.

In amplifying the grounds of appeal, the appellant, who had earlier

on 10/8/2020 lodged written submission in support of the appeal, simply

adopted both the grounds of appeal and the submission and urged the

Court to allow his appeal and set him free. He also urged the Court to let

the respondent Republic respond to his grounds of appeal and written

submission and then he would make a rejoinder.

In his submission in respect of ground one (1) of appeal, the

appellant faulted the judge for upholding his conviction based on visual

Page 15 of 41
identification which was not watertight as it was done in unfavourable

conditions. He argued that he was not known to PW2 before the incident

as he, in his testimony, admitted that it was his first time to see him and

he first heard his name from the one who was killed. He further submitted

that the intensity of the said moon light could not be ‘equated with day

light contending since according to evidence light was weak such that he

said he used car light to see the one on the motorcycle. To bolster his

assertion he referred the Court to the case of Ally Manono vs. Republic,

Criminal Appeal No. 94 of 2005 in which the case of Abdallah Bin Wendo

vs. R [1953] 20 EACA which set forth the factors to be considered which

were followed in the case of Waziri Aman vs. Republic [1980] TLR 250.

In respect of the second (2) ground, the appellant submitted that the

identification parade certificate (PF-186) was not tendered to fortify that

PW2 identified him and that the parade was improperly conducted for not

involving similar and identical persons and that even the police who

conducted it did not testify in court.

The learned judge is, in ground three (3) of appeal, also faulted for

not appreciating that there were fundamental contradictions in the

Page 16 o f 41
witnesses' own evidence and between them which went to the root of the

case. He pointed them out as follows;

1. PW2, at first, said he asked the one on the motorcycle to check if

the head lights were functioning and he saw him clearly but later

on he said he could not tell the registration number of the

motorcycle.

2. PW1 said when he stopped the vehicle four people with knives

went to him, tied him and the turn boy and left with the car while

PW2 said when he stopped he suddenly received one blow from

the blunt side of the bush knife meaning there was only one knife.

3. PW2's evidence in court differed with his statement at the police

(exhibit D.2). Such difference rendered him unreliable.

4. PW5 contradicted himself when he said when he went to the

scene he found one person burning but later said that he found

that person not yet burnt.

In augmenting the above arguments the appellant referred the Court

to its earlier decisions in Evarist Nyangove vs Republic, Criminal appeal

Page 17 of 41
No. 72 of 2010 Leonard Zedekia Maratu vs Republic, Criminal Appeal

No. 86 of 2005 and Beda Philipo vs Republic, Criminal Appeal No. 114

of 2009 (all unreported) in which he said the Court stated that

contradictions render the witnesses' evidence untruthful hence should be

acted on with caution.

In ground four (4) of appeal, the appellant's complaint is two-limbed.

In the first limb, the appellant has made a long submission elaborating that

the provisions of section 38(3) of the CPA was not complied with when the

stolen car was recovered because no seizure certificate was issued. We

think, we need not be detained in this ground. As rightly argued by the

learned State Attorney, the evidence on record is clear that the stolen car

was found in the football pitch near the appellant's house. It was not

seized in the appellant's house after an official search being conducted as

envisaged under section 38 of the CPA hence the need to issue a certificate

of seizure does not arise. The complaint is, for that reason, unfounded and

is hereby dismissed.

In the second limb, the appellant's complaint is founded on the way

the stolen car was handled (chain of custody) after it was recovered. The
Page 18 o f 41
complaint is that its handling was not documented and cited the cases of

Paul Maduka vs Republic, Criminal Appeal No. 110 of 2007 and Julius

Matama @ Babu @ Mzee Mzima vs Republic, Criminal Appeal No. 137

Of 2015 (both unreported). We, again, think that this complaint is

unfounded. The evidence on record clearly shows that after the stolen car

was recovered in the football pitch, the ignition switch was found not to be

in car hence they traced it and found it at the place where the robbery

incident occurred and thereafter PW2 drove the car to the police station

whereat it was later returned to the owner (PW6) for custody. So, the

handling of the car was sufficiently explained and it being not a property

capable of changing hands easily or being easily tempered with, we find

nothing irregular was done that occasioned injustice to the appellant. Even,

when it was tendered in court, the appellant did not object or raise

anything suggesting being tempered with. Just for clarification, faced with

an identical scenario, in the case of Leonard Manyota vs Republic,

Criminal Appeal No. 487 of 2015 (unreported), this Court drew a distinction

between principles applicable in handling properties capable of changing

hands or easily being tempered with as promulgated in the case of Paulo

Maduka and 4 others vs Republic, Criminat appeal No. 110 of 2007

(unreported) which involved handling of money in cash and those items

which cannot and stated that:-

"It is not every time that when the chain o f custody

is broken, then the relevant item cannot be
produced and accepted by court as evidence,
regales o f its nature. We are certain that this
cannot be the case say, where the potential
evidence is not in the danger o f being destroyed, or
polluted, and/or in any way tampered with. Where
the circum stances may reasonably show the
absence o f such dangers, the court can safely
receive such evidence despite the fact that the
chain o f custody may have been broken. O f course,
this w ill depend on the prevailing circum stances in
every particular case. "

Consistent with the above exposition of the law, the Court, in the

case of Kadiria Said Kimaro vs Republic, Criminal Appeal No. 301 of

2017 (unreported), considered the issue whether the pellets were properly

received in evidence for which its stages of its handling was not

documented and was of the view that being items which could not change

Page 20 of 41
hands easily or be tampered with, they were properly admitted into

evidence and the chain of custody was consistent.

The complaint in ground five (5) of appeal concerns failure by the

prosecution to let PW2, PW4 and PW5 identify the stolen car (exhibit P.5).

The resolve of this complaint rises no difficulty at all. As rightly conceded

by the learned State Attorney the record bears out that the prosecution did

not cause the named witnesses to see and identify exhibit 5. The issue that

arises is whether, in the circumstances of this case, such failure negatively

impacted on the prosecution case. On this the learned State Attorney

argued that PW2 throughout his testimony maintained that the stolen car

was registration Number T 902 CHR make Suzuki carry owned by one

Urasa and that it was the same car Rogartius Urasa (PW6) tendered in

court and admitted as exhibit P.5. More so, PW6 tendered a Registration

Card (exhibit P.3) which indicated Majura Matawa as being the one from

whom he bought the car as evidenced by the sale agreement (Exhibit P.4).

She argued therefore that the omission to show the stolen car to PW2,

PW4 and PW5 for identification was inconsequential. With this evidence on

record we are inclined to agree with the learned State Attorney that, much

Page 21 of 41
as it would have been better that PW2, PW4 and PW5 were availed with

the opportunity to see and identify the stolen car (exhibit P.6), the

omission had no serious effects on the prosecution case. The rationale here

is that the description of the stolen car given by PW2, PW4 and PW5

tallied exactly with the particulars contained in exhibit P.4 and even exhibit

P.6 tendered by PW6. The omission was therefore not fatal. This ground

fails too.

In ground six (6) of appeal, the learned first appellate judge is being

challenged for not realizing that exhibits P3 and P4 were improperly

admitted into evidence for not being read out in court after being cleared

for admission. The infraction was readily conceded by the learned State

Attorney and was quick to urge the Court to expunge them from the record

of proceedings. In cementing her assertion, she cited to us the case of

Issa Hassan Uki vs. Republic, Criminal Appeal No. 129 of 2017

(unreported). That notwithstanding, relying in the same decision, she was

insistent that the detailed oral testimony by PW6 sufficiently established

that he was the owner of the stolen car (exhibit P.6) after buying it from

Majura Matawa. After all, she added, there was no dispute regarding

Page 22 of 41
ownership of Exhibit P.6. It is, indeed, clear that the two exhibits were not

read out aloud in court after admission as exhibits. It is fairly settled that

once an exhibit is cleared for admission and admitted in evidence, it must

be read out in court. In addition to the cited decision, we are also guided

by our holding in the case of Sunni Amman Awenda vs. Republic,

Criminal Appeal No. 393 of 2013 (unreported) and they deserve, as we

hereby do, to be expunged from the record of proceedings.

Another complaint connected to this ground of appeal is that the

sketch map showing where exhibit P.6 packed at the time it was recovered

was not drawn. The learned State Attorney was of the view that it was not

necessary because according to evidence on record the car (exhibit P.6)

parked near the appellant's house. We, on our part, have seriously perused

the record of appeal. We have noted that the appellant's guilt was not

founded on the invocation of the doctrine of recent possession whereby it

is necessary to prove, among other factors, that he was found in

possession of the stolen property. (See See, Joseph Mkumbwa &

Samson Mwakegenda v. R, Criminal Appeal No. 94 of 2007

(unreported). Since the appellant was not found in possession of exhibit

Page 23 of 41
P.6 then the location of the recovered stolen property was not relevant.

That not being the case, we agree with the learned State Attorney that

drawing of the sketch map was not important.

The learned judge is also faulted for concurring with the trial court

that the appellant was arrested and taken to police station as opposed to

his contention that he surrendered himself to the Police station upon being

informed by his house maid that he was required by the police to report at

the police station. The learned State Attorney was emphatic that the

evidence on record is to the effect that the appellant was arrested by PW3

during the night of the incident and PW4 is the one who called the police

who took the appellant to the police station. We hasten to say that it is a

well-established principle that this being a second appeal, this Court will

not interfere with the concurrent findings of facts by the lower courts

unless there was misapprehension of evidence or violation of principles of

law or procedure. The Court pronounced that stance in the case of Aloyce

Maridadi vs. The Republic, Criminal Appeal No. 208 of 2016 which

quoted with approval the case of Wankuru Mwita vs The Republic,

Criminal Appeal No. 219 of 2012 (unreported) it was held that:

Page 24 of 41
 "...The law is w ell-settled that on second appeal,
the Court w ill not readily disturb concurrent findings
o f facts by the tria l Court and first appellate Court
unless it can be shown that they are perverse,
dem onstrably wrong o r clearly unreasonable or are
a result o f a complete m isapprehension o f the
substance, nature and quality o f the evidence;
m isdirection or non-direction on the evidence; a
violation o f some principle o f law or procedure or
have occasioned a m iscarriage o fju stice ."

In the present case, the evidence on record is clear that the appellant

was arrested by PW3 and was picked by police following the call by PW4.

The two witnesses were believed by both courts below and found as a fact

that the appellant was arrested by PW3 and later picked by police. That

finding of fact is based on evidence which was properly received by the

trial court. We see nothing on record suggesting misapprehension of the

substance, nature and quality of the evidence; misdirection or non­

direction on the evidence or a violation of some principle of law or

procedure. There is therefore no justification for us to interfere with that

Page 25 of 41
finding of fact by both courts below. This ground of appeal is equally

devoid of any merit and we dismiss it.

We now revert to ground three (3) of appeal in which the appellant

complains that there were huge and substantive contradictions going to the

root of the case. To begin with, we find it proper, to expound the general

principles governing contradictions by any particular witness or among

witnesses. It is generally acceptable witnesses of the same incident are

prone to give different explanations. Appreciative of that fact, in the case

of Lusungu Duwe vs Republic, Criminal Appeal No. 76 of 2014

(unreported) the Court cited the case of Dickson Elia Nsamba

shapwata & another vs Republic, Criminal Appeal No. 92 of 2007

(unreported) and the Court stated that:-

"It was stated in that case that in a ll trials, norm al

contradictions and discrepancies are bound to occur
in testim onies o f the witnesses due to norm al errors
o f observation, or errors in memory due to lapse o f
tim e or due to m ental disposition such as shock and
horror at the time of occurrence...Minor
contradictions, inconsistencies, or discrepancies

Page 26 of 41
 which do not affect the case o f the prosecution, it
went on to say, should not be made a ground on
which the evidence can be rejected in its entirety.
While m inor contradictions and discrepancies- do not
corrode the credibility o f a party's case, m aterial
contradictions and discrepancies do."

The above stance was reiterated in various other decisions of the

Court in which it emphasized that not every discrepancy in the

prosecution's witnesses will cause the prosecution case to flop and that it is

only where the gist of the evidence is contradictory then the prosecution's

case will be dismantled (See Saidi Ally Ismail vs. Republic, Criminal

Appeal No. 241 of 2008 and Samson Matiga vs. Republic, Criminal

Appeal No. 205 of 2007 (both unreported).

Guided by the above principles, we have objectively perused the

entire record and considered the claimed patent contradictions and

inconsistences in the evidence of the prosecution witnesses as listed herein

above. We are of the view that they were not fundamental and the two

courts below were entitled to gloss over them without occasioning any

injustice to the appellant. We shall demonstrate.

Page 27 of 41
 In respect of the alleged first contradiction, the record bears out that

PW2 told the one on the motorcycle to check the front lights so as to

enable him see and identify him not so as to read the Registration Number

of the motorcycle. There is therefore no contradiction when PW2 later said

he could not tell the Registration Number.

As for the second alleged contradiction that' the police who

investigated the case (PW1) and PW2 differed on the number of knives

involved in the robbery incident, it is indeed on record at page 8 of the

record of appeal that PW2 told PW1 that he was hired by four people who

later on attacked him with knives. PW1 was narrating what he was told by

PW2. On his part, PW2 told the trial court that after making up his mind

not to proceed with the journey and as he stepped down from the car, he

suddenly faced a blow from the blunt side of the bush knife. He did not tell

whether other bandits had bush knives too. With the fatal blow, it seems

he had no time to check how many bandits had bush knives. However, the

number of bush knives was not material as the fact remains that a weapon

was employed in stealing the car. The contradiction is not material and

therefore did not go to the root and hence affect the prosecution case.

Page 28 of 41
 Next to be considered is whether PW2's evidence in court differed

with his statement at the police (exhibit D.2) and if such discrepancy

rendered him unreliable. We have seriously perused PW2's statement

(exhibit D.2) and his evidence on record. Much as we appreciate that PW2

did not give, in court, the details of the incidence in the same manner and

using the same words as he did in his statement, which is definitely not

expected of a witness due to lapse of time and also ability to cram what he

told the police verbatim, the gist of the event remained unchanged. Both in

court and in his statement he gave a detailed account -of the event from

the time he was approached by the bandit who was killed who was with

another person on a motorcycle, the time he was robbed the car and till

when the bandit was killed. We are therefore not prepared to accept the

contention that there are material contradictions between what PW2 said in

court and the contents of his statement (Exhibit D.l).

Lastly, we will consider whether PW5 contradicted himself in his

explanation regarding the other bandit being set to fire. The appellant

claimed that PW5 at first said when he went to the scene he found one

person burning but later said that he found that person not yet burnt. We

Page 29 of 41
are confident that the appellant is referring to PW5's telling at page 18 of

the record about what befell on the bandit who was killed upon his arrest

where he is recorded to have said:-

7 am also a ten ce ll leader o f ce ll No. 39. I

remember on 15/12/2013 a t night I was asleep. A t
OlOOhrs I heard alarm outside. People were saying
someone should be set ablaze. The noises were
coming from a football pitch. I warned the people
by telling them that it was not proper. I urged them
they should have interrogated him. When I reached
there he was yet burnt... when the police came the
person was already burnt to death../(emphasis
added).

It is discernible from the above excerpt that there is nothing

contradictory. PW2 is very clear that when he arrived at the place where

the bandit was arrested he found him not yet to be burnt but was burnt

later on before the police arrived. The appellant's complaint is by any

stretch of imagination unfounded.

We are now remained with the crucial issue whether the appellant

was properly identified as complained in ground one (1) of appeal.

Page 30 of 41
 We, however, think we should, first, determine whether the

identification parade conducted added any value to the prosecution case.

We are alive of the legal position that identification parade is by itself not

substantive evidence. It is usually only admitted for collateral purposes,

mostly, to corroborate dock identification of an accused by a witness (See

Moses Deo vs R [1987] TLR. 134. And, for it to be of any value, such

identification parades must be conducted in compliance with the applicable

procedure as set out by the Police General Orders No. 232 (the PGO) which

was also discussed in Republic vs XC-7535 PC Venance Mbuta (2002)

TLR 48 citing the famous Ugandan case of Republic vs Mwango

Manaa(1936) 18 EACA 29. Of particular relevance for our purposes is

paragraph 2 (k) of PGO No. 232 which reads:-

"(k). Persons selected to make up the parade

should be o f sim ilar age, height, general
appearance and class o f life. Their clothing should
be in genera! way sim ilar"

Since it is a condition that the participants in the parade must look

similar or alike, then where conducted otherwise, it will be of little

probative value against an accused person. The evidence by PW2 is clear

Page 31 o f 41
that the parade conducted constituted of people who were substantially

different in various aspects. In fact, this is what PW2 told the trial court at

page 13 to 14 of the record of appeal when he was cross-examined by the

appellant:-

"7he people in the parade were different. They

were not in uniforms. You were in short trouser.
You had wound on your head. Nobody had a wound
on his (sic) except you. He was the only person in
shorts. They did not look the sam e."

Given the nature and appearance of people involved in the parade,

we have no hesitation to hold that it manifestly violated the law. On this

account therefore, there is merit in the complaint that the parade was not

properly conducted hence rendering it valueless. It was therefore unsafe to

rely on it to found the appellant's guilt. Both courts below seemed to have

realized that anomaly as they did not rely on it to convict the appellant.

We now turn to the issue whether the appellant was identified. The

evidence relied on is that of visual identification by PW2 alone. The law on

visual identification is now fairly settled that it is of the weakest kind,

especially if the conditions of identification are unfavourable. The Court has

Page 32 of 41
in numerous decisions warned that no court should base a conviction on

such evidence unless, the evidence is absolutely watertight. In the often

cited case of Waziri Amani vs R [1980] TLR 250, the Court stated with

sufficient lucidity the guidelines to be followed by the courts where the

determination of a case depends on identification such as whether or not it

was day time or at night, and if at night, the type and intensity of fight; the

closeness of the encounter at the scene of crime; whether there were any

obstructions to clear vision, whether or not the suspect(s) were known to

the identifier previously and the time taken in the whole incident.

It is evident that the background of the incidence can be traced way

back to the time when two people approached PW2 for hiring a motor car

Registration No. T 902 CHR make Suzuki Carry driven by PW2 and which

had parked at Manzese at 1830hrs to when the stolen car was recovered

parked at the football pitch. PW2 is, in his testimony, clear that he was

approached by two people who were on a motorcycle and the one who

was killed negotiated with him the fare of hiring the car for carrying timber

from Manzese to Kongowe-Mbagala. At this point, definitely, it was still

bright and PW2 had enough time to see and identify the two persons, the

Page 33 of 41
appellant inclusive. Then, they went to where the timber was with the one

who was killed and sat with him (PW2) and were followed behind by the

motorcycle, paid for the timber and were loaded in the car. Thereafter, he

said, before they left to Mbagala, the one who was killed went to talk to

the one on the motorcycle. After their talk, PW2 called the one killed to

check if all the head lights were properly functioning. That was intended to

enable him to check if they were the very ones who had hired him and he

was satisfied to be ones. That suggests that it was already dark and what

followed thereafter occurred at night. By using the light he gave the

descriptions of the two persons to be:-

"My lights showed the one on the m otorcycle very

clearly. The one who sate with me was tall, thin and
brown in complexion. In the m otorcycle he was not
very thin. He was medium. Not tall, not short and
he was black in com plexion."

Here, again we entertain no doubt that PW2 saw the two persons at

a close range and was able to identify them as there.was enough light

from the car and PW2 was able to give their descriptions. The conditions

Page 34 of 41
were favourable for identification.(See Raymond Francis vs R [1994]

TLR 100).

Turning to the robbery incident, the issue that crops up for our

determination is whether the conditions were favourable to enable PW2

see and identify the appellant as one of those who robbed him the car at

the scene of crime, that is, at the place where PW2 was hit with the blunt

side of the bush knife, he and one Selemani were tied with ropes, dumped

in the bush and the bandits left with the car.

In the present case, PW2 is the victim and sole and key witness of

what happened. According to him the one with the motorcycle followed

them from Manzese until at the Institute of Accountancy where the one he

had sat with in the front cabin stopped him and told him that the one with

motorcycle had ran out of fuel. He then disembarked and went to assist

him refuel the motorcycle and returned after about 40 to 45 minutes. The

journey proceeded and nowhere did PW2 state that he had opportunity to

see the one on the motorcycle until at the place where there were bushes

where he stopped and declined to further continue with the journey. As to

Page 35 of 41
what happened thereat, he (PW2) is recorded, at page 11 of the record of

appeal, to have said:-

"We continued and took a rough road. I later came

to discover that we were in the bushes. I stopped
and said I was not going to move a step. He
opened the door and started to talk with the person
behind. I aiso opened the door but before I touched
the ground with my second foot a m otorcycle came
and passed and stopped in front o f m y vehicle.
Suddenly I received one blow from the blunt side o f
the bush knife. They continued to give me blows. I
had to raise m y hands. I asked them what they
wanted. They said m y boss has taken things from
other people. They caused me to lie down and step
on me. The people who beat me is the one who
was with a motorcycle. It was at 2130hrs. I knew
these people as we had been together since
1830hrs. There was moon lig h t alm ost like day lig h t
and so it was easy to identify. I was tied up with
ropes (m y legs and arms). They wanted to tie my
hands a t back but I resisted. They tied me in front.
They then carried me to the bushes. They brought
Selem ani also tied. They the concentrated to me

Page 36 of 41
 and said I should not move until after one hour.
One o f them said they should k ill me. It was the
accused person who said they should k ill me. The
accused was the one who was riding the
motorcycle. When he came and wanted to k ill me
the one who had sat with me and who hired me
stopped him and said they should leave."

It is plain, from the above excerpt, that PW2 described the source

and intensity of light and the specific acts done by the appellant in the

robbery incidence. No doubt, the act of tying PW2 and Selemani with ropes

brought the bandits closer to PW2. Going by such evidence and bearing in

mind that it was his third time to see the appellant during that incident, we

entertain no doubt that PW2 correctly identified the appellant out of the

many robbers.

Besides the above evidence, there was yet another piece of evidence

that implicated the appellant with the commission of the offence. That was

circumstantial evidence. To sustain a conviction on circumstantial evidence

the test set up by the law is that, such evidence must irresistibly point to

the guilt of the accused person. (See August Mahiyo vs R [1993] TLR

Page 37 of 41
117). That stance is in line with the legal position stated much earlier in the

Kenyan case of R vs Kipkering arap Koske and Another (1949) 16 E.A.

135 where it was held that in order to justify a conviction based on

circumstantial evidence, the inference of guilt, the inculpatory facts, must

be incompatible with the innocence of the accused and incapable of

explanation upon any other reasonable hypothesis than that of his guilt.

The burden of proving facts which justify the drawing of this inference

from the facts to the exclusion of any reasonable hypothesis of innocence

is always on the prosecution and never shifts to the accused.

In the present case, PW2's evidence is to the effect that after he

was, with Selemani, tied with ropes and dumped in the bush, the bandits

left with the car and after sometime he untied himself and Selemani using

his teeth and mounted a search for the bandits. Assisted by motorcyclists

whom they reported the incidence, they went up to the football pitch

where they saw the stolen car packed. That they went close to it and

invaded it. People in the car got out and ran away. He ran after the one

who hired him and with the help of a person who responded to the call for

"thief" got hold of him after he was hit with a stick on his head. That, other

Page 38 of 41
people turned up to be the one who hired him, and upon inquiring him, he

named other persons he was with in the robbery incident as being Juma

White and Shedrack Meshaki who live at the place where the stolen car

had packed. Those people then set him to fire and he burnt to death.

While that was happening, PW3 who, as demonstrated ‘above, responded

to the call for thief with his dog, saw a person who, using moon light, he

identified to be his neighbour Shedrack who looked suspicious and was

limping. Upon questioning him, he claimed to have his motorcycle stolen at

Mzinga but then ran away. PW3 traced him and, assisted by other people

who responded to his call for thief, managed to arrest him and was later

sent to police station.

The above evidence shows that the appellant was named by the one

who hired the car before he was burnt to death; he was arrested

immediately after the robbery incidence and under suspicious

circumstances and the stolen car parked at the football pitch near his

house. With such evidence, we are satisfied that the test for circumstantial

evidence to found a conviction was met.

Page 39 of 41
 The appellant, in his defence, gave an explanation to account for his

being associated with the commission of the offence. In all, he raised the

defence of alibi. He claimed that at the material time he was at the Railway

Station waiting for the arrival of his wife from Mwanza and was informed of

the incident of a person being burnt near his house through a call from his

house maid. The evidence by PW2 which was not doubted by the trial

court gave detailed account of the incident and the appellant's involvement

in it. Even PW2 and PW5 told the trial court that the appellant was named

by the one who was burnt down to have participated in the robbery

incident. The testimonies of these witnesses and that of PW3 who arrested

the appellant on the fateful night and took him to police station squarely

placed the appellant at the scene of crime. The appellant's claim that he

was not at the scene of crime is highly implausible. This ground of appeal

fails too.

All said, save for the admissibility of exhibits P3 and P4 and the

conduct of the identification parade which was flawed hence expunged and

disregarded, respectively, there still remained, as demonstrated above,

sufficient evidence on which the appellant's conviction was grounded.

Page 40 of 41
 For the foregoing reasons, this appeal is devoid of merit and is

hereby dismissed.

DATED at DAR ES SALAAM this 30th day of September, 2020

S. A. LILA
JUSTICE OF APPEAL

W. B. KOROSSO
JUSTICE OF APPEAL

B. M. A. SEHEL
JUSTICE OF APPEAL

The Judgment delivered on this 6th day of October, 2020, in the

Presence of the Appellant linked through video conference from Ukonga Prison

and Mr. Adolph Kisima, State Attorney for the Respondent, is hereby certified

as a true copy of th<

COURtOF APPEAL

Page 41 of 42