Johansen Protas

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY ATBUKOBA CRIMINAL APPEAL NO. 55 OF 2023 (Arising from Criminal Case No. 42 of2023 District Court of Muieba) JOHANSEN PROTAS @ MJUNI .............. ......... ....................... APPELLANT VERSUS THE REPUBLIC ................... ................... ............ . RESPONDENT JUDGMENT 25th. June and 9th July, 2024 BANZI, J.: Before the District Court of Muieba, the appellant, Johansen Protas @ Mjuni was charged with two counts; rape and unnatural offence contrary to sections 130 (1) (2) (e), 131 (3) and 154 (1) (a) (2) of the Penal Code [Cap.16 R.E. 2022], respectively. At the end of the trial, he was convicted and sentenced to mandatory sentence of life imprisonment for both counts. The brief facts leading to the conviction of the appellant reveal that, on the night of 12th March, 2023, the victim (PW2) and her young sister went to sleep after finishing having their dinner. Their parents were not at home as they went to funeral at their neighbour's house. Around 21:00 hours, the victim woke up and found herself carried by a certain person who took her Page 1 of 12 to the bush at Kabanga area. Upon arrival, he put her down and undressed her. When the victim screamed, he covered her face with her clothes and head sock commonly known as "mzuld1. Thereafter, he inserted his male sexual organ into her female sexual organ. He did the same against the order of nature. The victim claimed to recognise that person as Mjuni Kasibya or Johansen who lives two houses away from their home. She did so with the aid of moonlight. She also recognised his voice because he threatened to kill her if she reports the incident. Around 02:00 hours, she returned home where she found her father (PW3) who was looking for her. Upon being asked, she mentioned Mjuni as the person who took her and narrated what had just happened her. The victim's mother (PW1) examined her and found discharge on her genitals. PW3 informed the village chairman and eventually, the appellant was arrested and taken to police station. The victim was sent to Kamachumu Health Centre where she was examined by PW4 who found her with evidence of penetration on her vagina and anus. She also filled in the PF3 which was admitted as Exhibit Pl. Later on, PW5 was assigned by the OC-CID to investigate the case and in her investigation, she realised that, the victim was raped and sodomised by the appellant. In his defence, the appellant denied to have raped or sodomised the victim. He claimed that, on the fateful day, he went to the funeral where he Page 2 of 12 was given a task to distribute drinks to the mourners. In the course of distribution/ he was asked by one of the mourners (PW3) to fetch cigarettes for him. Around 21:00 hours, they began to serve food and later on, PW3 came and they began to quarrel over those cigarettes. After that, he returned to his house where he lived with his children. Sometimes later, his child informed him that, he was needed outside. Upon getting out, he found the village chairman and PW3. They took him to PW3's brother who told him that, he will see after denying to put boundaries. After that, the victim was brought and PW3 forced her to name him as the person who raped her. He was later taken to Kamachumu police station where on the next day, he was informed about his allegation of raping the victim. Three days later, he was taken to court. As alluded above, after the full trial, the appellant was convicted with both counts and sentenced to life imprisonment. Aggrieved with his conviction and sentence, he knocked the doors of this court armed with eleven grounds of appeal which boil down into main complaint that, the case against him was not proved beyond reasonable doubt. At the hearing, the appellant appeared in person unrepresented whereas, Mr. Erick Ma bagala, the learned State Attorney represented the respondent, Republic. Page 3 of 12 In his brief submission, the appellant urged this court to consider his grounds of appeal. He added that, he was framed because of land dispute with PWi and PW3. He concluded that, the case against him was not proved to the required standards and he prayed for this court to release him. In his reply, Mr. Mabagala supported the appeal contending that, the case against the appellant was not proved beyond reasonable. Expounding his stance, he submitted that, the conviction of the appellant was based on evidence of identification which was not watertight. He added that, the victim in her evidence admitted to be covered her face with her clothes and mzula during the incident. Despite those unfavourable conditions, she claimed to recognise the appellant by using moonlight though she did not disclose its intensity. He cited the cases of Wambura Marwa Wambura vs Republic [2022] TZCA 429 TanzLII and Waziri Amani vs Republic [1980] TLR 250 to support his argument that, the appellant was not properly identified. On voice identified, he argued that, it was stated in the case of Nuhu Selemani vs Republic [1984] TLR 93 that, voice identification is the weakest kind of evidence. The fact that, the victim and the appellant were living at the same village is not a conclusive proof that, she knows his voice well considering that, she did not disclose how often she used to communicate with him in order to establish her familiarity with his voice. He concluded that, although Page 4 of 12 the victim was sexually abused, the available evidence did not prove beyond reasonable doubt that, it was the appellant who committed the alleged offences. In that regard, he prayed for this appeal to be allowed by quashing the conviction and setting aside the life sentence meted against the appellant. Having considered the submissions of both sides together with the evidence on record, the issue for determination is whether the case against the appellant was proved to the required standards. According to the evidence of the victim, PW1 and PW4, it is undisputed that, on the night of the incident the victim was sexually assaulted. In her evidence, the victim explained how the person who took her to the bush inserted his penis into her vagina and anus. Her evidence is corroborated by the evidence of PW1 and PW4 who both examined her and found her with evidence of penetration on her vagina and anus. Apart from that, the PF3 (Exhibit Pl) establishes the evidence of penetration. In addition, PW1 proved the age of the victim to be below ten years because her testimony revealed that, the victim was born on 12/07/2014. In that regard, it is undoubted that, the victim was raped and sodomised on the date of the incident. Now the next question to be answered is who raped and sodomised the victim. Looking closely at prosecution evidence, it is undisputed that, the Page 5 of 12 whole evidence concerning the perpetrator of the alleged offences hinges on the evidence of identification. It is settled law that, evidence of identification is of the weakest kind and most unreliable whereas, courts are cautioned not act on it unless all possibilities of mistaken identity are eliminated, and that the evidence is absolutely watertight. See the cases of Waziri Amani vs Republic (supra) and Jumapili Msyete vs Republic [2015] TZCA 234 TanzLII. In Jumapili Msyete vs Republic, the Court of Appeal classified the evidence of identification into three categories; one visual identification; two identification by recognition and three, voice identification. Explaining further on the three categories, the Court stated that: "In visual identifications, usually, the victims would have seen the suspects for the first time. In recognition cases, the victims claim that they are familiar with or know the suspects. In the last category the victims would usually claim to be familiar with the voice of the suspect although they may or may not have seen him. ...But for each type of identification, evidence could be classified as foundational, complementary, assistive and corroborative. A foundational evidence is that which lays down how a victim was able to identify the suspect. Assistive evidence could be that which, or what assisted the victim in the identification process. Corroborative evidence is that which is supportive of what the victim has Page 6 of 12 alleged. Thus, in recognition cases, the foundational evidence would be how the victim came to know the suspect. Assistive evidence would include, the time of the day the incident happened, the type and intensity of the light etc. which enabled the victim to ascertain the identity of the suspect. Corroborative evidence would consist of say, the suspect being found in possession of the victim's property stolen in the course of theft; or naming the suspect at the earliest In visual identification, the foundational evidence would consist of the description of the suspect, his body, complexion, attire etc. The light and intensity of the light, would be assistive, whereas, identification at an identification parade or being found in possession of the victim's stolen property would be corroborative." They went on and concluded that: "Of these types of identification, it has been held that identification by recognition is more reliable than that by strangers or by voice; although even in recognition cases mistaken identification may be made (See ISSA s/o MGARA @ SHUKA vR, Criminal Appeal No. 37 of2009, MAGWISHA MZEE, SHIJA PAULO v R, Criminal Appeals No. 465 & 467 of 2007 (both unreported). Visual identification has been described as the weakest, (WAZIRIAMANI v R (supra). Voice identification has been described as the most Page 7 of 12 unreliable (NURU SELEMANI v R) (1994) TLR 93. Accordingly, the type of evidence required to prove identification, might differ in some aspects, but some may be common in all types of identification. Foundation and assistive evidence, for instance, is necessary in all types of identification, but corroborative may not be.•" What I gathered from the extract above is that, in all three categories of evidence of identification, it is necessary for the witness who purports to identify the suspect to give foundational and assistive evidence. That is to say, the witness must give evidence to establish how he/she was able to identify the suspect and what assisted him/her in the identification process by mentioning type of light and its intensity. Reverting to the matter at hand, the type of identification relied upon by the prosecution is that of recognition because, according to the victim, the appellant was her neighbour who lived two houses away from their house. This fact was not disputed by the appellant in his defence. Concerning the assistive evidence, the victim claimed to recognise the appellant by moonlight. However, as rightly submitted by Mr. Mabagala, the victim did not disclose the intensity of the alleged moonlight which assisted her in identification process. Affirming it previous position in Issa Mgara @ Shuka vs Republic, Criminal Appeal No. 37 of 2009 (unreported), the Court of Page S of 12 Appeal in the case of Potian Joseph vs Republic [2015] TZCA325 TahzUI stated as follows. "...even in recognition cases where such evidence may be more reliable than identification of a stranger, dear evidence of light and its intensity is of paramount importance. This is because, as occasionally held, even when the witness is purporting to recognise someone whom he knows, as was the case here, mistakes in recognition of dose relatives and friend are often made." (Emphasis supplied). It is apparent from the extract above that, even in recognition cases, the witness must give clear evidence disclosing source of light and its intensity which assisted him/her to identify the suspect. In Potian Joseph vs Republic, the Court held that: "Admittedly, the appellant in this case was not a stranger to the witnesses. However, the incident occurred at night. Witnesses referred to moonlight as their source of light enabling them to recognise the appellant. Though under certain circumstances identification by moonlight may be possible, it was imperative in the circumstances to explain the intensity of the moonlight."(Emphasis is added]. Page 9 of 12 As indicated above, in our case, the victim did not disclose the intensity of the moonlight whether it was bright to the extent of making proper identification in order to eliminate possibilities of mistaken identity. Besides, the conditions mentioned by the victim was not favourable for proper identification. According to the victim, she woke up finding herself being carried by a person. Upon arriving at the crime scene, the said person covered her face with her clothes and mzula. There is no evidence from her explaining how arid at what point she uncovered her face in order to recognise the said person to be the appellant. Basing on prevailed circumstances and considering that the intensity of the moonlight at the scene of crime was not disclosed, the possibilities of mistaken identity cannot be ruled out. In the case of Shamir John vs Republic, Criminal Appeal No. 166 of 2004, we were reminded to be aware that, even in recognition which is more reliable than identification of a stranger, mistakes in recognition of close relatives and friends are sometimes made. So far as voice identification is concerned, it is stated in the case of Nuhu Selemani vs Republic (supra) that, voice identification is the weakest kind and most unreliable evidence that great caution must be taken to rely on it. For voice identification to be relied upon, it must be established that the witness is very familiar with the voice in question as being the same Page 10 of 12 voice of a person at the scene of crime. See the case of Stuart Erasto Yakobo vs Republic, Criminal Appeal No. 202 of 2004 (unreported). In another case of Manyanda Ncheya vs Republic [2021] TZCA 409 TanzLII, it was stated that: "Pertaining to voice identification, great care must be taken before the court relying on such evidence because it is generally perceived as the weakest type of evidence as there is always a possibility of imitating another person's voice." In this case, the victim did not explain how she was familiar with the appellant's voice to the extent of eliminating the possibility of someone's else to imitate his voice. The fact that he was their neighbour, is not conclusive proof that, she was familiar with his voice. Without clear evidence on the familiarity of the appellant's voice, the possibility of mistaken voice identification cannot be ruled out. For those reasons, it is my considered view that, the appellant was not properly identified at the scene of crime be it visually and or through voice. Although the victim was sexually abused, there is no clear evidence to prove beyond reasonable doubt, it is the appellant who committed the alleged offences. Thus, it is the finding of this court that, the prosecution failed to prove its case against the appellant beyond reasonable doubt. Consequently, Page 11 of 12 I allow the appeal, quash the conviction and set aside the sentence. The appellant is to be released from custody forthwith unless otherwise lawfully held. It is so ordered. I. K. BANZI JUDGE 09/07/2024 Delivered this 9th July, 2024 in the presence of Mr. Noah Mwakisisile, learned State Attorney for the respondent, the appellant in person, Mr. Audax V. Kaizilege, Judge's Law Assistant and Ms. Grace Mutoka, RMA. Right of appeal duly explained. I. K. BANZI JUDGE 09/07/2024 Page 12 of 12