ALFRED NDUKAI OLETAYA VERSUS TEH REPUBLIC JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC CRIMINAL APPEAL NO. 14576 OF 2024 (Arising from Judgment of the District Court of Bahi in Criminal Case No 70 of 2020) AFRED NDUKAI OLETAY ….…………………..………………………….. APPELLANT VERSUS THE REPUBLIC …..……………………………..….………….…………..RESPONDENT JUDGMENT Date of the last Order: 04/09/2024 Date of the Judgment: 18/09/2024 LONGOPA, J.: The appellant one ALFRED NDUKAI OLETEYA was charged and on 6th September 2022 was convicted with two counts to wit Corrupt transactions Contrary to sections 15(1) (a) and (b) and (2) OF Prevention and Combating of Corruption Act and condemned to pay fine for both counts to the tune of TZS 1,000,000/= or serve jail for three years consecutively for both counts. 1|Page On 29th May 2024, the appellant being aggrieved by the whole of the judgment of the District Court of Bahi instituted the appeal on the following grounds of appeal are as follows:- 1. That, the Trial Court erred in Law and in fact by Convicting the Appellant while the Respondent failed to prove the case beyond reasonable doubt. 2. That, the Trial Court erred in law and fact by shifting the burden of proof from the Prosecution to the accused person. 3. That, the trial Court erred in law and in fact by considering weak and contradictory evidence adduced by prosecution. On 4th September 2024, the parties appeared before me for viva voce hearing. The appellant enjoyed the legal services of Mr. Fred Peter Kalonga, learned advocate while the respondent enjoyed the legal services of Mr. Francis Mwakifuna assisted by Ms. Victoria Njau, learned State Attorneys. 2|Page Mr. Fred P. Kalonga when raised up stated that though there were three grounds of appeal, the appellant was prepared to argue on two first grounds – the first and the second grounds of appeal and abandon the 3rd ground of appeal. The 1st ground is on failure of the prosecution to prove the case beyond reasonable doubts. It is submitted that there was no proof of the case to the required standard of proof beyond reasonable doubts. The reasons are that: First, the allegation that the appellant solicited and accepted bribery on 20/04/ 2020, PW 4 evidence stated that the money was given to the appellant by PW 2. At the same time, PW 1 who is a PCCB official stated that he received the complainant on 24/04/2020. There were four days from the date of alleged commission of the offence to reporting the same creates doubts that the incident happened. PW 4 stated that he knew about reporting to the Prevention and Combating of Corruption Bureau (PCCB) after being released from the detention at the Village Office. It was argued that if the victim was aggrieved by alleged action of the appellant 3|Page then he should have reported the matter immediately upon happening of the same. In the case of Marwa Wangili versus the Republic [2002] TLR 39, the Court reiterated that the ability of witness to name the suspect at the earliest opportunity is an importance of his reliability and in the same way an unexplained delay or complete failure to do so should put a prudent man to inquiry. The appellant was arrested and interrogated for the first time on 26/04/2020 which was more than 25 days after the alleged reporting date as reflected on page 13 of the proceedings. The delay to arrest the appellant creates doubts as there was no explanation on the same at all. Second, it is clear that a material witness who is alleged to have handed over the money to the appellant and the source of the money creates doubt. It was stated that the money was obtained from the friend. He also stated that he had gone home to look for and found the money. At the same time, he testified that he asked the money from his wife who had a small business. It was submitted that the wife, one Veronica Mabenanga 4|Page was material witness who was never called to testify nor the friend who gave the money allegedly to have solicited and accepted by the appellant. As such, adverse inference should be drawn against the prosecution’s case. On the other hand, PW 2 stated that while passing at the Village Officer and called by PW 3. At the same time, the version of evidence of PW 3 is that he went to Majuto’s house to inform him about his friend being arrested. It was PW 3 who went to the home of PW 2. All the witnesses have not established that payment of TZS 200,000/= was part of the terms of bail bond. The document signed by the sureties had no terms regarding payment of money. PW 3 stated to have signed a bond that had not stated about the payment of money. It was the appellant’s prayer that circumstances of the case do not establish commission of the alleged offence by the appellant. There was nothing indicating that Village Executive Officer (VEO) was found in possession of any money alleged to have been solicited and received from the victim. 5|Page From the incidents of failure to report timely, taking a long time to arrest and interrogate the appellant and all sorrounding circumstances indicate that there was fabrication of events. As such, the first ground of appeal is merited as there are a lot of doubts that might be considered to raise reasonable doubts on the prosecution’s case. On the second ground of appeal, it is submitted that shifting of the burden of proof to the defence/ appellant was not proper and violated the law. The defence had two witnesses, the appellant as DW 1 and DW 2 one Julius Chilingo Korokoroni. DW 2 stated that he was present when the bail conditions were set. In cross-examination there was contradiction by statement from the Prevention and Combating of Corruption Bureau allegedly having earlier made by DW 2. The receipt of the statement was of the DW 2 and its treatment was not appropriate as it violated the rights of the appellant/ accused. The record on page 63 of the proceedings reveals that the accused and counsel for the accused were not given opportunity to object the use of pervious statement of DW 2 which was not part of the court’s 6|Page records thus violating rights of the accused/ defence. The legality of the prayer made by the prosecution and granted by the court is questionable. In fact, the section 154 of the Criminal Procedure Act, Cap 20 R.E. 2019 does not have a provision to the extent of allowing the use of statement that was not on record. It was submitted that the treatment of the document in the judgment by discrediting the whole evidence of DW 2 and stated that the same resulted into failure to establish the reasonable doubts. The evidence of DW 1 was sufficient enough to indicate loopholes on the evidence. DW 1 showed categorically that procedure for bail was followed. The trial court seems to have shifted the burden to the appellant/accused thus wrongly arrived to the decision. The justification for discrediting the whole of the defence evidence. Thus, the appellant’s prayer that this appeal be allowed and the conviction and sentence be set aside by the Court. 7|Page The respondent on the other hand objected the appeal as the grounds have no merits. It was reiterated that decision of the subordinate court was correct. In respect of failure to prove the case, it is submitted that it is incorrect. The reporting at PCCB late after four days is well explained by the victim, PW 4. The circumstances according to PW 4 indicate that the appellant received bribery. The appellant solicited and accepted contrary to section 15(1) (a) of the Prevention and Combating of Corruption Act, Cap 329 R.E. 2019. The victim stated that to have witnessed the handover of the money to appellant and that he is the one who informed his relatives to find money for the bail bond condition. PW 4 learnt about PCCB after being released on bail, thus reported on 24/04/2020 which was four days after alleged incident. 8|Page The arrest was done after 25 days is correct as PCCB must first do the investigation before the arrest. That was a proper procedure under the law. The source of money is that PW 2 stated that he was going to his home to search for the money. He found the money from his wife. He returned with money in company of PW 3. PW 3 stated that he is the one who looked for PW 2 at his home to inform PW 2 about the arrest of the victim. It was PW 2 who handed over the money while the person who signed bond for release on bail is PW 3. The signed bail bond remained in the VEO office. On failure to call material witnesses, it is submitted that the material witness was PW 2 who handed over the money to the appellant. The evidence was not contradicted at all that PW 3 is the one who called PW 2. This ground lacks merits as the evidence against the appellant was clear. Also, it was submitted that the PW 4’s evidence was questioned. However, we are of the view that there were all ingredients of the offence. The person who solicits or receives a bribery in the corrupt transaction 9|Page must have authority that gives him opportunity to solicit or accept due to the position. The taking of the money was not recorded as part of the bail conditions nor indicated to have been received as part of the same. Regarding the use of section 154 of the Criminal Procedure Act, it is submitted that it does not deal with the nature of a prayer made. It might be Section 154 of the Evidence Act which is the law that have that aspect. The case was proved by witnesses namely PW 1, PCCB investigator, PW 2 person who handed over the money, PW 4 the victim, and PW 5 a student who was in the officer of the VEO while the handing over was made. The offence was proved without leaving any reasonable doubts. On second ground, there was no shifting the burden of proof as it is the prosecution’s burden. The available evidence required the defence to raise doubts on the prosecution’s evidence only. The Court found that the case was proved beyond reasonable doubt. The appellant never disputed to have received the money. DW 2 stated that he was not present when the money was being given. 10 | P a g e On these grounds, we reiterate that the prosecution managed to prove the case as per the requirements of Section 15(1)(a) on corrupt transactions by the failure of the appellant to state the reasons for receiving the money. It the respondent’s prayer that the decision of the trial court be upheld. In short rejoinder, it is not controverted that timing of the alleged offence and reporting of the same, it is reiterated that it raises doubts as the same ought to have been reported the same timely. Nowhere, the victim has adduced the evidence on reasons for failure to act timely. It was reiterated that arrest being effected on 26/05/2020 after more than 25 days, there was nothing that could have been indicating that there was commission of the offence. Aspects of reporting and arresting the appellant are crucial in establishing the credibility and reliability of the evidence of the prosecution. PW 2 and PW 3 evidence is contradicting. There are three sources of money. Wife of PW 2 was named to be the source of money thus was a material witness to show that there was money that allegedly was given/ received by the appellant that originated 11 | P a g e from her. Date of arrest of the victim and detention is the one that creates doubts with regard to PW 2 na PW 3 testimonies. If PW 3 was the one who bailed the victim and money was not part of the terms of the bail bond were given. It raises doubts if the money was required. There is nothing indicating that terms of the bail were bent or reduced to fit the aspect of received money. Further, PW 3 signed the bond without the money. PW 5 stated that the money was bail of the victim, what are the reasons for the PW 3 to sign the bond that does not include the money. On the 2nd ground, it was reiterated in DW 2 testimony that he was present at the Village Office on material date. Failure to afford the defence to object tendering of previous record/ statement of the witness which was not part of evidence, why should the court discredit the testimony of DW 2. Indeed, those statements were not part of the record. That could not have impaired the defence evidence. DW 1’s evidence alone was available on record and sufficient to raise reasonable doubts on the prosecution’s evidence. 12 | P a g e Having heard the submissions by the parties, I have dispassionately considered all the available documents including the proceedings, judgment and petition of appeal to find out validity of the appeal. I shall commence addressing the appeal on second ground of appeal. This challenges the finding of the trial court by shifting the burden of proof to the defence to prove and establish its innocence. It is on record that trial Court had reasoned at pages 7-9 of the judgment, among others that: First, it was expectation of the court that if the defence wanted to be believed that the victim, PW 4 was kept in custody for good cause then relatives of one Hussein would have been called as witnesses to show that PW 4 brought a traditional doctor who administered herbs that affected kidney of one Hussein. Otherwise, that defence was an afterthought. Second, that defence failed to cross-examine PW 4 in respect of his participation to administer the so-called local medicine from traditional herbalist. It was the opinion of the trial court that failure to question on 13 | P a g e administration of the local medicine to one Hussein was fatal on defence evidence. Third, that there was no satisfactory explanation which was given by the defence side for the reasons as to contradiction of DW 2 statement recorded at the Prevention and Combating of Corruption Bureau. This led to discrediting the evidence of DW 2. It is settled view of this Court that trial court erred in law and fact to consider these three aspects to have contributed to the finding that defence did not raise any reasonable doubts to the prosecution’s case. The trial court did not consider relevant factors that would have made it reach to a fair conclusion on whether the defence raised reasonable doubts in the circumstances. The reason for arrest of PW 4 was not disputed. Thus, finding that defence failed to question on that aspect weakened the defence is not warranted. These issues did not touch to the core of the matter before the trial court. 14 | P a g e The proceedings reveal cross examination in pages 11-13, 24-25, 27- 28, 31-32, and pages 48-49. Essentially, issues raised in this cross- examination reveals that: First, person in the Village office lock up cannot see what was going on in the office of the VEO. Second, there was no light in that lock-up. Third, PW 2 did not have money but went to borrow/ask from his wife one Veronica Mabenanga. Fourth, the alleged money was received outside the office of the VEO. My thorough perusal of the proceedings reveals that defence did manage to cross examine on all important aspects relating to the commission of the two offences of corrupt transactions namely soliciting and receiving of TZS 200,000/= as the inducement for granting bail to PW 4. The aspects that trial court considered to have not been question were not relevant to establish or proving the case the appellant was facing. It is settled law that in criminal cases the duty to prove a case to the required standard is vested solely on the prosecution. In Bathromeo Vicent vs Director of Public Prosecutions (Criminal Appeal No. 521 of 15 | P a g e 2019) [2024] TZCA 186 (18 March 2024) (TANZLII), at pages 7-8, the Court of Appeal stated that: We find it apposite to also remind ourselves that, it is a cardinal principle of criminal law that the duty of proving the charge against an accused person always lies on the prosecution. In the case of John Makolebela Kulwa Makolobela and Eric Juma alias Tanganyika v. Republic [2002] T.L.R. 296 it was held that: "A person is not guilty o f a criminal offence because his defence is not believed; rather, a person is found guilty and convicted of a criminal offence because of the strength of the prosecution evidence against him which establishes his guilt beyond reasonable doubt.” The trial court had shifted the burden to prove the innocence on the appellant by requiring the appellant to prove that victim was arrested for a good cause. For all the three aspects as addressed by the trial court were 16 | P a g e violative of the principles governing proof of criminal cases. Thus, the second ground of appeal is upheld for being meritorious. On the first ground is failure of the prosecution to prove the case to the required standard. In this aspect, there are several aspects that are analysed to find out whether the prosecution managed to prove the case beyond reasonable doubts. These include the ingredients of the offence, credibility of the evidence, contradictory evidence and so on. There are two main ingredients of the offence of soliciting and accepting bribes under the offence of corrupt transaction of Section 15(1) (a) of the Prevention and Combating of Corruption Act, Cap 329 R.E. 2019. It proves that: 15.-(1) Any person who corruptly by himself or in conjunction with any other person- (a) solicits, accepts or obtains, or attempts to obtain, from any person for himself or any other person, any advantage as an inducement to, or reward for, or otherwise on account of, any agent, whether or not such agent is the same person as such first 17 | P a g e mentioned person and whether the agent has or has no authority to do, or for bearing to do, or having done or forborne to do, anything in relation to his principal's affairs or business. The main ingredients of the offence are that there must be proof of: first, existence of principal-agent relationship between the accused and the principal. Second, corruptly soliciting or accepting advantage in relation to principal’s affairs. The advantage should be aim at doing something or forebear from doing something. In the case of the Director of Public Prosecutions vs Peter Kibatala (Civil Appeal No. 4 of 2015) [2019] TZCA 157 (4 July 2019) (TANZLII), at page 11, the Court of Appeal reiterated one of the important ingredients of the offence. It stated that: We fully agree with both courts below that, in order to sufficiently establish the offence of corruptly soliciting and receiving any advantage under the aforesaid section, one of the crucial ingredients of the offence which the 18 | P a g e prosecution must prove is the existence of principal - agent relationship. Further, the same principle was reiterated in the case of Director of Public Prosecutions vs Philipo Joseph Ntonda (Criminal Appeal No. 68 of 2023) [2024] TZCA 298 (3 May 2024) (TANZLII), at page 13, where the Court of Appeal of Tanzania restated the ingredients as follows: It is trite law that, for the prosecution to establish the above offence, it has to prove beyond reasonable doubts two ingredients; one, the existence of principal-agent relationship between the accused as an agent and his principal; and two, that, the agent corruptly solicited a benefit in relation to his principal's business affairs. In my view, there was no sufficient evidence to establish existence of the main ingredients of the offence under section 15(1)(a) of the Prevention and Combating of Corruption Act, Cap 329 R.E. 2022. There was no witness testified in respect of existence of principal-agent relationship. There was no oral testimony nor documentary evidence 19 | P a g e demonstrating that appellant was acting in course of his principal’s affairs. Also, there is nothing with certainty that appellant solicited and received corruptly an advantage. It is so stated as evidence on record is weak to prove commission of the offence. One of the aspects relates to failure to report the incident of alleged corrupt transaction for four days and failure to interrogate the appellant for almost about more than twenty- five days of reporting the incidence makes the credibility of the prosecution’s evidence questionable. In Kennedy Mahuve @ Mjaliwa vs Republic (Criminal Appeal No. 540/590 of 2020) [2024] TZCA 19 (6 February 2024) (TANZLII), at page 15, the Court of Appeal lucidly held that: It is glaring from the record that it took two years for the victim to report the fateful incident and arraignment of the Appellant. The prosecution did not provide evidence explaining the cause of delay by PW1 to report to either her guardian or elders or any member of the community or school. It is settled that delayed reporting weakened the 20 | P a g e credibility of the evidence of the victims. In Marwa Wangiti Mwita and Another v. Republic [2002] T.L.R. 39, the Court underscored that, the ability of a witness to name a suspect at the earliest opportunity is an all- important assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry. PW 1 stated that from 19/04/2020 to 26/05/2020 is about twenty - five (25) days from the date when the alleged crime was reported to the first date when the appellant was interrogated. Also, PW 4 testified that alleged offence occurred on 20/04/2020 but he did not report the incident until 24/04/2020. There was nothing tangible to substantiate failure to report the incident. This principle of delay to report the incident has impact on credibility of the witnesses was also analysed in the Athumani Mussa Zoazoa vs Republic (Criminal Appeal No. 151 of 2023) [2024] TZCA 347 (9 May 21 | P a g e 2024) (TANZLII), at pages 15-16, where the Court of Appeal illustratively noted that: Sequel to the foregoing, we may recap that in a situation when a victim of rape is not threatened to be killed or harmed or the like threats, delay to report the incident diminishes her credibility and eventually undermines the charge of rape. In our considered view, what the victim exhibited in the case under appeal is a hallmark of an incredible witness and she certainly falls in that realm, we so find and hold. The second ground of appeal has merit. According to PW 2, the bail was granted on signing of bail bond by Charles Lukumya who had a farm and a house. It was PW 2 that the appellant asked who is bailing the victim, PW 4, is was PW 3 who came out to bail the victim. It is doubtful why did PW 2 not bailed out the victim if he handed over TZS 200,000/= for bail purposes. Indeed, it more probable than not that appellant never solicited nor received any money. It was the 22 | P a g e prosecution’s evidence that terms of the bail are those related to PW 3 having signed a bail bond as he had immovable properties. Further, according to PW 3, timing of the receiving was around 19:00 hours. On record, there is nothing to establish existence of condusive identification circumstances. Without such evidence, it is doubtful that properly prosecution’s witnesses identified the appellant and the alleged received amount. It on record that PW 2 stated that it was late in the evening when the money was given. In particular, PW 3 stated at pages 28 stated that it was 19:00 hours when the money was received by the appellant before the release of the victim, PW 4. No witness of the prosecution testified as to state of the lightings etc at the time of incident. As the evidence of the prosecution is solely on visual identification, purportedly that witnesses saw the receiving part of the alleged corrupt transaction, it was pertinent for proof of the intensity of light, description of the appellant apparel on material date, time of observation, as well as distance from the culprit to the witness. 23 | P a g e In Isaya Loserian vs Republic (Criminal Appeal No. 426 of 2020) [2024] TZCA 138 (23 February 2024) (TANZLII), at page 15, the Court of Appeal emphasized that: Trite legal stance is that such evidence is of the weakest nature and should not be relied on unless the court is satisfied that all possibilities of a proper and unmistaken identification are eliminated, that is to say the evidence must be watertight. Generally, night times are associated with darkness and the conditions are taken to be difficult and hence unfavourable for a proper and unmistaken identification. For assurance, the Court has occasionally insisted that the identification evidence must meet certain thresholds. In Waziri Amani vs Republic (supra) some guidelines were set out to include, but not limited to, time the culprit was under the witness's observation, distance (proximity) at which observation was made, the duration the offence was 24 | P a g e committed, and where the offence is committed at night, the source and intensity of light at the scene to facilitate a positive identification and whether the culprit was familiar to the witness. In law, in particular the Penal Code, Cap 16 R.E. 2022, time commencing from seven o’clock in the evening to twelve in the morning is regarded to be night time. That being the case, it was incumbent on part of the prosecution to lay all necessary evidence on identification of the receiving action of the corrupt transaction. However, on record there is none to substantiate that for certainty the appellant received TZS 200,000/= as inducement to grant bail to the victim. Moreover, there is lingering question of the source of money that is allegedly was received by the appellant. PW 2 stated to have called a friend to give him the money. Also, he stated that he went home to search for money. It was his evidence that the money was given to him by his wife one Veronica Mabenanga. There is no evidence on record that appellant was found with any moneys from the prosecution’s witnesses. It was 25 | P a g e pertinent for the prosecution to bring evidence from PW 2’s wife to substantiate PW 2 being given any money for bail purposes. In absence, of such proof making the assertion that there was money exchanging hands remain unproved. For instance, Jackson s/o Hakiel Msuya vs Republic (Criminal Appeal No. 138 of 2021) [2024] TZCA 430 (11 June 2024) (TANZLII), at page 10, the Court stated that: In our recent decision in George Jonas Lesilwa v. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024) the definition of "material witness" was also well described as: a witness who can testify about matters having some logical connection with the consequential facts especially if few others, if any, know about these matters, (See Black's Law Dictionary 8th Ed. page 1634). Generally, the information the material witness possesses has a strong probative value and, very few, if any witness, possess the same information. It should be needless to say, at this juncture that, probative 26 | P a g e value is the probability of evidence to reach its proof purpose of the fact in issue." A material witness was also defined in the case of Wachawaseme John v. Republic, Criminal Appeal No, 468 of 2022, (unreported) where the Court held: "In law, generally a material witness is a witness whose evidence is relevant and consequential to the substantive legal proceeding.” In absence of PW 2’s wife evidence to establish that PW 2 did actually collect the money from her for giving the same to appellant, there is nothing tangible to show that PW 2 had got any monies allegedly to give it to the appellant to process bail. Contradictory evidence of prosecution is another area of concerns. The contradictions can be viewed in light of the following: PW 2 and PW 5 raises a lot of doubts. First, the PW 2 has failed to state the reasons he did not bail the victim if the VEO solicited and received TZS 200,000/= as inducement grant bail to the victim. Second, PW 2 who is the allegedly 27 | P a g e giver of the money never described denomination of the money handed over to the appellant. Third, timing of the incident is questionable. PW 2 stated it was evening. PW 3 stated it was around 19:00 hours. PW 5 stated that he does not know exactly time. As PW 3 who actually bailed PW 4 stated the same to have occurred at around 19:00, the question of identification cannot be overlooked. Further, there is contradiction as to who were present when the alleged amount of money was received. It is on record that PW 2, at page 23 of the proceedings, stated that he gave the money first and then the VEO went to open the door of the cell/lock up and brought the complainant PW 4 to the VEO office. According to PW 3, at page 28, the one who gave the money to the appellant was outside the office. PW 4, at page 31 of the proceedings, stated that when money was given outside the office in his presence and that when the money was paid he was already taken from the lock up. There are two lines of story contradicting each other. PW 2 who is alleged the one gave money to the appellant stated categorically that 28 | P a g e victim, PW 4 was still in the lock up and he was only brought to the office of VEO thereafter upon the appellant having received the money. On the other hand, the victim states to have been released from the lock up first and witnessed the receipt of the money by the appellant. Such contradiction in my view was material to warrant raising reasonable doubts as to whether the money was given at all. Additionally, there was improper discrediting of defence evidence. The evidence of the DW 2 was not procedurally discredited. The reasons are lucid. It is on record that the prayer by the prosecution as revealed in page 63 of the proceedings was made under Section 154 of the Criminal Procedure Act, 1985 Cap 20 R.E. 2019. Upon perusal of the relevant provision of the law, it is finding of this Court to it is not applicable and does not relate with the prayer. The provision is on sufficient bail when the original is insufficient. Thus, the prayer to use the alleged statement was wrongly allowed as the law under which the same was made does not support the matter. However, for clarity and proper administration of justice it is necessary to state that a prayer of that nature would be made under the 29 | P a g e Evidence Act, Cap 6 R.E. 2022. Section 154 of the Evidence Act, Cap 6 provides that: 154. A witness may be cross-examined on previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Indeed, previous statement of a witness may be used to cross - examine such witness. However, before doing so there are conditions to be fulfilled. First, there must be a previous statement made by the witness in writing or reduced into writing. Second, that statement must used to question the witness. Third, if the contradiction is intended to be by writing, the accused person must be called to those parts which are used for purposes of contradicting him. I am of the view that aspects in which the alleged statement made at PCCB office differ from the statement made in court ought to have been 30 | P a g e categorically enumerated. There is none on record. The statement previously made at the PCCB office was not tendered thus it did not form part of trial court’s record. Second, on page 64 of the proceedings, DW 2 statement is to the effect that the statement differs as he stated that he was present while in the other one it indicates he was not present when the bail was granted. Totality of DW 2 evidence is that he was present at the time bail granted. This was DW 2 evidence in chief, cross examination as well as re- examination. That is what seems that prosecution intended to contradict by use of Section 154 of the Criminal Procedure Act, 1985 (Cap 20) (sic!). If the evidence of PW 2 is taken in totality, it reveals that DW 2 was present at time bail was granted. All these aspects reveal that there was no proof of the case against the appellant to the required standard. In Six Ilanga @ Msaka vs Republic (Criminal Appeal No. 484 of 2020) [2024] TZCA 95 (23 February 2024) (TANZLII), at page 17, the Court of Appeal stated that: 31 | P a g e It is a salutary rule of law and practice that the duty of the prosecution in criminal trials is to establish and prove the accusations to the standard required by law, which duty never shifts to the accused. Section 3 (2) (a) of the Act as was expounded in colossal decisions of the Court and courts below. See Hemed vs. R [1987] T.L.R. 117 and Habib vs. R (1971) HCD 370. Therefore, the duty of proving the offence of murder beyond reasonable doubt is always on the shoulders of the prosecution, while the accused bears no duty to prove his innocence. It is settled view of this Court that having analysed the evidence on record there exist a lot of holes on the prosecution’s evidence which create reasonable doubts. The first ground of appeal is valid and I shall proceed to uphold it. In totality of events, all three grounds of appeal have merits thus the whole appeal is meritorious. The same must be upheld. In so doing, the 32 | P a g e conviction and sentence of the appellant becomes baseless as there was no proof of the case to the required standard. In the circumstances of this appeal having demonstrated that there are merits on all the preferred grounds of appeal, it is lucid that the conviction and sentence of the appellant was not premised on cogent reasons as there was no proof of the case to the required standard of proof beyond reasonable doubts. It is so ordered. DATED and DELIVERED at Dodoma this 18th day of September 2024. E.E. LONGOPA JUDGE 18/09/2024. 33 | P a g e