ANANGISYE LUPASA Finale

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA CRIMINAL APPEAL NO. 17076 OF 2024 CASE REFERENCE NO. 202406212000017076 (From Criminal Case No. 282 of 2020 in the district court of Chunya) between ANANGISYE S/O LUPASA ........................................................... APPELLANT

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

JUDGMENT 10th December 2024 & 3rd March 2025 NONGWA, J. The appellant Anangisye Lupasa appeared before the district court of Chunya to defend himself on the offence of rape contrary to sections 130(1)(2)(e) and 131(1) of the Penal Code [Cap 16 R: E 2019 now R: E 2022]. It was alleged on 16th December 2020 at Igangwe village within Chunya district and Mbeya region did have canal knowledge of one (name withheld) a school girl of 13 years old. Name of the girl disguised to hide her identity, she will be referred as “PW1 or victim”. The appellant denied. 1 To prove charges, the prosecution called the victim, PW1, victim’s mother (PW2), victim’s father (PW3), Lazaro Jimmy Ambangile (PW4) a militia and Eligius Erasto (PW5) medical doctor. They had one exhibit PF3 (exhibit P1). The appellant was a sole witness for defence. In her evidence, PW1 recalled that on 16th December 2020 at 14:00 was with her relative when returning home from school, met a person who commanded her to stop, threatened them and had a machete. She was held and sent to a nearby bush, her relative ran away. There she was undressed her tight, underwear and a skirt pulled up. That person took his dudu and inserted into her vagina and ejaculated whitish fluid. After finishing his thirst, she was told to wake up and go home. On the way she was crying and met her mother (PW2), when asked narrated what had befallen her.

Her father was traced, the matter reported to leaders and was taken to police station where she was issued with PF3 and sent to hospital. PWI stated that person was new to her and when she was testifying was third time to see him. PW2 recounted to have met PW1 crying and when interrogated, said she was raped. PW3 stated after receiving bad news of rape reported to village leader and police and the accused was arrested on 19/12/2020. That three people were apprehended and PW1 2 identify the appellant by touching him. On his part PW4 said was a militiaman, he arrested the appellant upon instruction from the village executive officer. The appellant was assorted with other two people and the victim called to identify the culprit, she touched the appellant. PW5 is a medical doctor who examined PW1 who had bruises in her inner part of vagina and hymen perforated. He filled PF3 in which he opined that the victim was penetrated by a blunt object, it was tendered as exhibit P1. In defence, the appellant stated was arrested on 18/12/2020 by five militiamen and sent to VEO. He was asked if he committed the offence on 16/12/2020 but denied. The girl was called and when asked, she replied “I think is the one’’. Then was taken to police station and later arraigned before the court. Upon full trial the trial court was impressed by the prosecution evidence that it proved the case beyond

reasonable doubt. Consequently, the appellant was found guilty, convicted and sentenced to thirty years. Being aggrieved, the appellant has filed petition of appeal on seven grounds which can be paraphrased as one, that was convicted based on evidence of PW1 which was not corroborated by Joyce Ally, 3 two, that the trial court did not resolve the issue of visual identification by PW1. Three, that was convicted on evidence of PW2 and PW5 who did not witness the act of rape. Four, that identification parade conducted by PW5 was unlawful. Five, that per evidence of PW3 his arrest was for raping another woman at night. Six, that was convicted on evidence of PW5 which was doubtful and seven, that defence evidence was ignored and the prosecution failed to prove the case as per the law When the appeal came up for hearing the appellant appeared in person, unrepresented whereas the respondent was represented by Mr. Augustino Magesa, State Attorney. The appeal was argued by filing written submission. In his submission the appellant argued generally without referring to a specific ground of appeal. He started with the law on burden of proof, he stated the prosecution had to prove the case beyond reasonable doubt and referred to the case of Jafari Juma vs Republic, Criminal Appeal No. 252 of 2019 [2023] TZCA 216 (3 May 2023; TanzLII). He added that beyond reasonable doubt is not defined by

law but it was explained in the case of Magendo Paul & Another vs R. [1993] TLR 219. 4 Having laid such foundation, the appellant submitted evidence of PW1 was taken contrary to section 127(2) of the Evidence Act, on ground that was she was not tested if she did not understand the meaning of oath. To him that was misapprehension of section 127(2) of the Evidence Act and prayed her evidence be expunged. Another complaint was failure to call material witness. The appellant submitted that the one who witnessed the victim being pulled to bush was not called without sufficient reason. Further that one George who was instrumental in his arrest was not called. He contended although it is the prosecution who decide who to call but the court is allowed to draw permissible inference on such failure. He referred to the case of Azizi Abdallah vs Republic [1991] TLR 71. He submitted as there was no prior description of the appellant by the victim, he was arrested on speculations. Other submission was that PW1 was not credible on the basis that it was her first to be penetrated hence evidence of blood discharge from her vagina was important but was lacking. He said there was contradiction between PW1 and PW3, while PW2 said he called PW3 through cellular phone, PW3 said was followed to the farm, this he said dented credibility of witnesses. 5 Another submission was on issue of

identification, he stated there was no evidence that PW1 described the person he raped her. Further that identification parade was unlawful and there was possibility of mistaken identity. He referred to the case of Shija Bosco @ Hamis vs R, Criminal Appeal No. 208 of 2009 (unreported). Finally, he submitted that his evidence was not considered which was a serious misdirection and rendered the conviction and sentence untenable. From the above submission, the appellant prayed his appeal be allowed. In reply that evidence of PW1 was taken contrary to section 127(2) of the Evidence Act, Mr. Magesa submitted that the court tested PW1 if knew the meaning of oath, which she did and finally her evidence was taken after she had promised to tell the truth and not lies. Thus prayed the ground be dismissed. On failure to call Joyce who is alleged to be with the victim, state attorney submitted that the said person did not witness PW1 being raped after she ran away. Referring to the case of Seleman Makumba [2006] TLR 379, he stated the victim proved the offence of rape. He resorted to section 143 of the Evidence Act that it is weight of evidence 6 that count and not number of witnesses. Thus, distinguished all cases cited by the appellant. On credibility of PW1, state attorney submitted that he narrated the sequence of events which show she was penetrated, he said her evidence was supported

by PW5 who examined the victim and found bruises in the vagina and hymen perforated. Once again stated in sexual cases best evidence comes from the victim. On contradictions between PW2 and PW3, it was stated that there was no any contradiction and if any was too minor to the case by referring to the case of Trazias Evarista @ Deusdedit Aron vs Republic, Criminal Appeal No. 88 of 2020 [2021] TZCA 697 (29 November 2021; TanzLII). On visual identification of the appellant, the state attorney submitted that the offence was committed during day time and the victim had ample time to observe the appellant. He added that the appellant was pointed before the VEO when paraded in line of two others and that it was third time to see him. On defence evidence not being considered it was argued that the trial court considered it which in fact was only fading the commission of offence and did not shake the prosecution evidence. 7 In rejoinder the appellant maintained that evidence of PW1 was received contrary to the law. That there was failure to call material witness especially Kilanga George who could have explained how he knew it was the appellant who raped the victim. He added that he was not named at the earliest opportunity by the victim which lowered her credibility. He further submitted that there was no prior description to PW2, PW3, PW4 and PW5. That identification parade was

illegal and there was dock identification. Having considered rival submission and record of appeal, only two issues call for may determination one, whether evidence of PW1 was taken in contravention of section 127(2) of the Evidence Act and two whether the prosecution proved the case beyond reasonable doubt. Starting with the complaint that evidence of PW1 was received contrary to section 127(2) of the Evidence Act. In the first place it was not raised as ground of appeal, however as parties canvased it and is a point of law, I will deliberate it. That section provides; ‘(2) A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies.’ 8 The above provision is exception to section 198(1) of the Criminal Procedure Act [Cap 20 R: E 2022] which requires every witness in a criminal cause or matter to be examined upon oath or affirmation in accordance with the provisions of the Oaths and Statutory Declarations Act. That exception applies only to children of tender age not above fourteen as per section 127(4) of the Evidence Act. Thus, it has been established that there must be some questions to test his /her intelligence if knows the meaning of oath or affirmation, if not reception of his/her evidence must be after promising to tell the truth and not

lies. That is in regard to procedural aspect in receiving evidence of a child of tender age. However, in terms of subsection (7) Evidence Act as amended by the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of 2023 any defect in taking evidence of the child in sexual offences does not make those evidence inadmissible. See George Jonas Lesilwa vs Republic, Criminal Appeal No. 374 of 2020 [2024] TZCA 269 (16 April 2024; TanzLII) and Damian Manyika Babu Tanga vs Republic, Criminal Appeal No. 306 of 2022 [2024] TZCA 451 (13 June 2024; TanzLII). In this appeal as reflected at page 7 through 8 of proceeding, the victim was tested if she knew meaning of oath which she did, the 9 implication was that the court would have proceeded to take her evidence on oath or affirmation. But her evidence was taken upon promising to tell the truth. Regardless of any flaw committed by the trial court in receiving evidence of PW1, she promised to tell the truth and not lies after she was asked some question to test her intelligence. I agree with the state attorney that there was compliance with section 127(2) of the Evidence Act. Thus, this complaint fails. Next is whether the prosecution proved the case beyond reasonable doubts. The law is that in any criminal trial, the prosecution has to prove the case beyond reasonable which entails all ingredients of the offence charged. To ground

conviction in rape cases, the prosecution must prove one, penetration in the vagina even a slight penetration is sufficient to constitute sexual intercourse under section 130(4) of the Penal Code. Two, age of the victim which is necessary in determining the sentence to be imposed. Three, consent of the victim, it is immaterial if the girl is under 18 years of age unless she is 15 or more years of age and is shown that she is his wife. And four, the rapist. At hand, there is not much dispute in the first three elements and indeed from available evidence, penetration, age was proved. The victim being below 18 years consent is immaterial. 10 The question is whether the appellant is the one who raped PW1. The appellant has raised complaint in ground two on his identification as the rapist. The state attorney submitted the offence was committed on day time. At this moment, I find it apposite to restate the law regarding evidence of visual identification, it is trite law that conviction can be grounded on evidence of visual identification, however, before a court can finds conviction basing on visual identification, such evidence must be watertight so as to remove the possibility of honesty but mistaken identity. In the case Waziri Amani vs Republic [1980] TLR 250, the court held that; ‘...evidence of visual identification; as Courts in East Africa and England have warned in a number

of cases, is of the weakest kind and most unreliable. It follows therefore that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight.’ In the case of Philimon Jumanne Agala @ J4 vs Republic, Criminal Appeal No. 187 of 2015 [2016] TZCA 278 (22 October 2016; TANZLII), the court after studying the exposition of the law governing eyewitness identification evidence in various jurisdiction and as commented by some prominent authors, held that; 11 ‘Aware of this enduring problem, settled jurisprudence both here and the rest of the Commonwealth as well as in the U.S., is to the effect that eyewitness visual identification evidence is of the weakest character and most unreliable. Though totally relevant and admissible, it should be acted upon cautiously after the court has first satisfied itself that such evidence is watertight and all possibilities of mistaken identity or fabrication have been eliminated.’ In dealing with evidence of visual identification the court is required to consider, among others the following matters; one, the time the witness had the accused under observation; two, the distance at which he observed him; three, the conditions in which such observation occurred, for instance whether it was day time or night time,

whether there was good or poor lighting at the scene; four, whether the witness knew or had seen the accused before or not; and five, all factors on identification considered, it should also be plain that were any material impediment or discrepancies affecting the correct identification of the accused person by the witness. See also; Shomari Athumani @ Mwanja & Another vs Republic, Criminal Appeal No. 650 of 2021 [2024] TZCA 46 (16 February 2024; TANZLII). A proper identification of an accused person is crucial in proving a criminal charge in order to ensured that any possibility of mistaken identification is eliminated. 12 At hand, it is not in the prosecution evidence that the appellant was either a person known to PW1 or a person that PW1 had seen before. The victim herself when testifying said it was her third time to see the appellant. It is, similarly not in the prosecution evidence on the record of appeal before me that PW1 had ample time to observe and mark his assailant within the period of her encounter. Even if the offence was committed on day time and PW1 had ample time to identify the appellant, the record says nothing about the description of the appellant which should have been on attire worn by a suspect, his appearance, height colour and/ or any special mark on the body of such a suspect. Looking at the evidence on the record vis a vis the stated principles

regulating identification, it cannot be safely vouched that the appellant was positively identified. It is trite law in order to act on the evidence of identification of a stranger, the witness must have first given the description of that person. This principle was underscored in the case of Republic Vs Mohamed B. Allui [1942] EACA 72 in the following words: ‘That in every case in which there is a question as to the identity of the accused, the fact of there having been given description and the terms of that description are matters of highest importance of which evidence ought to be given first, 13 of course by the person who gave the description, or purports to identify the accused and then by the person to whom the description was given.’ See also; Yohana Chibwingu vs Republic, Criminal Appeal No. 117 of 2015 [2015] TZCA 447 (5 June 2015; TanzLII). It seems the appellant was connected with the offence based on the identification parade prepared by PW4, a complaint in ground four. Identification parade is governed by the Police General Order (PGO) No. 232 which gives sixteen procedures on the manner identification parades are to be conducted. Generally speaking, the PGO provides for the procedure on how to conduct identification parades, who can conduct such parades (the Assistant Inspector of Police or above); number of people to be lined up, the rights of the suspects and

how to prepare and maintain the record. It is, therefore, incumbent that the said procedure must be complied with whenever an identification parade is conducted. See Hamisi Ally & Others vs Republic, Criminal Appeal No. 596 of 2015 [2016] TZCA 320 (25 April 2016; TanzLII) and James s/o Msumule Jembe & Others vs Republic, Criminal Appeal No. 284 of 2021) 2024 TZCA 176 (13 March 2024; TanzLII). In particular, the purpose of an identification parade is to enable a witness identify his/her assailant whom he/she has not seen or known before the incident. 14 In this appeal need not travel long distance, the alleged identification of the appellant in group of three persons was unlawful. One, it was conducted by a person not a police officer but a militia, two, no prior description of the appellant was given, three, the appellant was put in line of three people. With the above flaw, evidence of PW3 and PW4 on how the appellant was identified cannot stand. It is my considered view, in the circumstances of this case where PW1 had spent time with the man who raped her, she stood a better chance of giving a proper description of the rapist including his attire and some other distinct descriptive features which would have been proceeded by proper identification parade which are missing herein. By such failure doubt as to her identification of the appellant was obvious, which I find, was

supposed to be resolved in the appellant's favour. Flowing from the above, I am therefore satisfied, the appellant was not properly identified by PW1 as the man who raped her, hence the charge against the appellant was not proved beyond reasonable doubt. Thus, resolving other grounds featuring as ground one, three, five, six and seven will be for academic purpose and wastage of time. 15 For the above stated reasons, this appeal is merited. I allow it, quash the conviction and set aside the appellant's sentence and order his immediate release unless otherwise lawfully held. V.M. NONGWA

JUDGE 3/3/20215 Dated and Delivered at Mbeya this 3rd March 2025 in presence Appellant and Mr. George Ngwembe and Mr. Ntegwa Mpingwa State Attorneys for the Respondent. V.M. NONGWA

JUDGE 16