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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO CRIMINAL APPEAL NO. 10641 OF 2024 [Appeal from the decision of the District Court of Morogoro at Morogoro in Criminal Case No 156 of 2023] BETWEEN SADIKI ELIAS APPELLANT VERSUS THE REPUBLIC ....RESPONDENT JUDGMENT MRUMA,J The Appellant Sadick Ellas was charged with and convicted of the offence of rape contrary to section 130(1),(2)(a)and 131 (1)of the Penal Code, [Cap 16 R.E. 2019]. It was alleged that on 29^^ day of July 2023 at Pulambili village, Kidugalo Ward within Morogoro District in Morogoro Region had carnal knowledge of one Mwamvua Mohamed without her consent. The Appellant denied the charge. In its efforts to prove the charged offence, the prosecution called a total number of five witnesses including the victim who testified as PWl. Other witnesses who testified for the prosecution were the Victim's daughter Fatuma Bakari (PW2), Adam Elias (PW3) Clement Nkinga (PW4) and F.4837) D/Cpi Chediel (PW5). The victim (PWl)gave a detailed account of how the Appellant broke and entered into her house and raped her. The witness told the court that on the material date and time while sleeping alone in her bedroom a person entered h and removed a mosquito net. She was shocked and asked him ''who are you", that person asked her to keep quite lest of he would kill her. According to PWl there was light from a solar lamp. She saw, the person who raped her. After removing the mosquito net, that person took his penis and inserted it into her vagina. When the person heard people coming for help he ran away. In her evidence in chief, PWl did not tell the court the time the incident took place. However when she was cross- examined by the Appellant she told the court that the Appellant was arrested by militiamen at around 05:30 hours while in her house. On his part Fatuma Bakari (PW2), the victim's daughter was in Dar Es Salaam on the day and time the incident is alleged to have been committed. She told the court that she was informed of the incident by a wife of Village Executive Officer in the morning following the incident. When she called her mother (i.e. the victim), the mother informed her that she had been raped by Sadik (i.e. the Appellant). She asked the Village Chairperson to take the victim to the hospital. Another person who testified for the prosecution Is Pastor Adam Thomas Mwongole (PW3), the Appellant's neighbour. He testified that on 29. 7. 2023 at around 05:00hours while at his home he heard his neighbour raising voice. He rushed to the scene and when he asked her why she was shouting, PWl told him that Sadlkl (the Appellant) had raped her. He went to their neighbour who happened to be the Village Executive Officer. According to this witness the suspect broke the victim's house after pouring water Into the bricks and removed one brick to allow a hand to pass. He told the trial court that he did not see the Appellant raping the victim and that his Involvement In the Issue ended when the matter was taken over by the village leaders. On his part Clement Nklnga a medical officer attached to Ngerengere dispensary testified as PW4. He explained how he medically examined the victim on 29^^ July 2023 at around ll:00hours. He told the trial court that when he examined the victim he not find any traces of sperms but he found that the victim was raped and from the history he received from the victim, there was penetration. After examination he filled Police Form No 3(Commonly Known as PF3), which was admitted as exhibit PI. D Corporal Chediel who testified as PW5 was both the investigator and arresting officer. He explained how the case was assigned to him file on 30^"^ July 2023 and visited the scene of crime at around 0:700hours same day. He told the court that his investigations revealed that the door of the victim's house was broken by using a sharp object. He also said that he discovered that the source of power supply in the house was a solar which had sufficient light to enable a person to identify another. According to PW5, he interrogated some witnesses and managed to know the whereabouts of the suspect. The accused was arrested on the same day at around 19:00hours. He took him to the police post and recorded his cautioned statement. After an inquiry conducted by the court, the cautioned statement was admitted in evidence and was marked as Exhibit PII. In his defence the Appellant denied the charge against him. He said that the evidence of the victim was not corroborated by any other evidence as the medical examination conducted could not reveal presence of sperms to the contrary only bruises were seen. He wondered why he didn't undergo medically examination just like the victim. He denied having confessed to the facts of the charged offence. On the evidence of the prosecution the trial court was satisfied that the prosecution had proved its case against the Appellant beyond reasonable doubt and proceeded to convict him of the offence of rape and sentenced him to serve a thirty years imprisonment. The Appellant was aggrieved by the conviction and sentence and has appealed to this court on the foilowing grounds:- 1. That, the learned trial Magistrate erred in law and fact to convict and sentence the Appellant based on evidence of victim only and discarded the defence evidence contrary to section 312 (1) of the CPA [Cap 20 RE 2022] before arriving at the decision. 2. That, the learned trial Magistrate erred when relied on the caution statement (Exhibit P2) which was recorded when the Appellant was drunk as per testimony of prosecution witness No PW2 therefore Exhibit P2 should be expunged from records. 3. That the learned trial magistrate erred in law and fact to convict and sentence the Appellant without consideration that the evidence of identification was not watertight. 4. That, the learned trial magistrate erred in law to convict and sentence the Appellant without consideration that the prosecution prayers to recail PWl and PW2 was granted without giving chance to the Appellant if he had any objection which is against the procedure of the laws. 5. That, the learned trial magistrate erred in relying on the evidence of PW2 to convict the Appellant without observing that it was a hearsay evidence'which did not accord'[sic] weight to the evidence. 6. That, the learned trial magistrate failed to observe that the evidence of PW4 (Doctor) was required to be given less weight due to the fact that PW4 step into the shoe of the court by confirming that the victim was raped which is against the procedure of the law as he was supposed to give opinion only. 7. That, the learned trial magistrate failed to realise that his case was not proved to the required standard of law. At the hearing of this appeal, the Appellant appeared in persona and unrepresented whereas the Respondent/Republic was represented by Mr Shaban Kabelwa, learned State Attorney. The appeal was argued viva voce. The appellant being a layperson had nothing much to say. He simply submitted that the prosecution did not prove its case beyond reasonable doubt as he too was not medically examined. He prayed his appeal to be allowed. The appeal was resisted by Mr Shaban Kabelwa, learned State Attorney. The learned counsel, however agreed with the Appellant's complaint that his evidence was not considered because his defence is not reflected anywhere in the judgment of the trial court. The learned State Attorney contended that the omission was fatal, but making reliance on the decision of the Court of Appeal in case of Selemani Msuya vs. Republic, Criminal Appeal No. 456 of 2020 CAT Moshi, where it was held inter alia that failure to consider defence evidence is fatal, the learned State Attornriey urged that this court being the first appellate court should step into the shoes of the trial court and evaluate the defence evidence and make its own findings on it. As regards to the complaint raised in second ground which is to the effect that Appellant was drunk while making his confession, the learned State Attorney stated that in terms of Section 32 of the Evidence Act [Cap 6 R.E. 2019] drunkenness doesn't make the confession invalid. On the third ground, Mr Shabani submitted that on the evidence on record the Appellant was identified by recognition and that the victim recognised him. He referred this court to pages 5 and 10 of the typed proceedings where the victim explained how she managed to identify the Appellant through solar light and proximity during the action of rape. The learned state Attorney stated that there was evidence to the effect that the victim mentioned the Appellant to PW3 who was the first person to arrive at scene and based on the principle laid down in the decision of the Court of Appeal in the case of Waziri Amani vs. Republic[1980]TLR 250,the Appellant was dully identified by the victim who knew him for quite some times before the incident. On the fourth ground, it was Mr. Shabani submission that the Appellant complainant that he was not given an opportunity to comment on the re call of witnesses is baseless. He referred this to the decision of the Court of Appeal in Criminal Appeal No 31 of 2023 between Omari Said @ Lubawa vs Republic,[CAT Morogoro] decided on 24. 6. 2024 where the Court stated that there is no legal requirement for demanding opinion of the accused before making an order for recalling a witness. That notwithstanding, it was the learned State Attorney's contention that because in the case at hand the Appellant was given Opportunity to cross- examine witnesses he was not prejudiced. Coming to the fifth ground in which the trial court is being faulted for relying on the hearsay evidence, it is Mr. Shabani's submission that the ground has no merits because the testimony of PW2 simply corroborated the age of the victim that the victim was an aduit. It was direct evidence because PW2 knew the victim. On the Medical evidence of PW4, it was the learned State Attorney's submission that the witness explained properly how he medically examined PWl and nowhere did he convict the Appellant. Submitting against the seventh ground the learned State Attorney submitted that on the evidence on record the prosecution proved both elements of rape, penetration and lack of consent. He said that at page 5 of the typed proceedings PWlciearly stated how the offence was committed. He said that evidence shows that the Appellant grabbed the victim and forcefully inserted his penis into her vagina. He said that this evidence were corroborated by testimony of PW3 and PW4 who medically examined the victim. After a carefully study of the trial court's record, the grounds of appeal and the submissions made by the parties, I find that ail questions prompted in this appeal boils down to one issue for determination and that is whether on the evidence on record the prosecution proved its case against the Appellant beyond reasonable doubt. I wiii start with the question of identification of the Appellant at the scene of crime which a is crucial element in proving a charge in a case like this. The particulars of the charge In this case did not indicate the time the offence was committed. Particulars of the charge simply stated that the offence was committed on 29^^ day of July 2023. Similarly, the facts purportedly read during the Preliminary Hearing did not state the time the alleged offence was committed. The time the offence is said to have been committed was disclosed for the first time by the victim (PWl)during cross-examination when she stated that it was at around 05:30 hours. In my view this omission is fatal because it denied the accused/Appellant sufficient and dear particulars (i.e. facts) of the charge against him in order to enable him to prepare his defence. For instance by disclosing the time the offence is alleged to have been committed during hearing of the prosecution's case, the accused is denied an opportunity to rely on the legal defence of alibi which otherwise is available to him under section 194 (4) of the Criminal Procedure Act [Cap 20 R. E. 2019]. That opportunity will be denied to him because under that law, the accused is required to give notice to the court of his intention to rely on that defence before the commencement of hearing of the case. If the time is disclosed during the hearing of the case (as it was done in this case) the accused must be taken by surprise and under the law he cannot raise the defence of alibi any more. 10 Disclosing the time the offence was committed during the hearing of the case also defeats the real meaning of evidence. In law evidence is a fact which is intended to prove or disapprove the existence of an alleged fact, thus if there is no fact alleged, stating anything which was not alleged reduces the statement itself to an allegation which needs proof. Accordingly, where there is no fact alleging adducing evidence regarding the time it was committed is an afterthought. On the other hand section 135(a)(ill) of the Criminal Procedure Act(Cap 20 R.E. 2019), which deals with mode in which offences are charged requires that after the statement of the offence particulars ofsuch offence must be set out in ordinary language in which the use of technical terms shall not be necessary. In my view such particulars of the offence must include the date, time, month and the year the alleged offence is said to have been committed. Stating the time the offence was committed in a charge is an essential element of the charge sheet aiming at the justice of the case. Now back to the evidence in support of identification of the Appellant, as stated it was the evidence of PWl during cross-examination that the incident took place at around 05:30 hours in the morning. On the other hand there was evidence of Pastor Adam Thomas Mwongele(PW3), which 11 was to the effect that he heard PWl shouting and he rushed to the scene for help at 05:00 hours. His evidence contradicts that of the victim because while the victim stated that the incident occurred at around 05:30 hours, PW3 stated that he heard his neighbour shouting and he rushed to the scene for help at around 05:00 hours and that when he arrived at the scene PWl informed him that she had been raped by Sadiki. The of PWl and PW3 gives a conclusion that PW3 went to the scene half an hour (or thirty minutes) before the incident had occurred. But all in all, assuming that the alleged rape took place at 05:30hours as alleged by the victim or at 05:00 hours in the morning as alleged by PW3, there can be no doubt that in this (eastern) part of the world it was still dark therefore the issue identification of the Appellant as the rapist of the victim had to be established. In the celebrated case of Waziri Amani Versus R.(1980)TLR 250 the COurt of Appeal held inter alia that:- "No courtshould acton evidence of visuaiidentification unless all possibilities of mistaken identity are eliminated and the court is fuiiy satisfied that evidence before it is absolutely water tight" Before delving into the question whether all possibilities favouring mistaken identity were removed or not, let me first define what it mean by the term visual identification. The term visual identification is not 12 defined in the Law of Evidence Act [Cap 6 R.E. 2019] but Black's Law Dictionary 10*'' Edition defines it as identification by seeing or sighting. Thus, in order court to convict an accused on visual identification evidence there must be evidence that the witness identified a suspect by seeing or sighting him. The question now is whether PWl, the only witness who was in the scene saw and identified the Appellant. As stated hereinbefore when she was testifying for the first time on 8*'' November 2023 PWl did not explain how she managed to see and identify the Appellant. She did not tell the court the length of time she had the Appellant under her observation, the conditions in which such observation occurred and whether there was good or poor lighting at the scene. She only gave such explanations when she was recalled and testified on 23. 11. 2023. She was so recalled following an oral application made by the prosecutor purportedly under section 147(4) of the Evidence Act [Cap 6 R.E. 2019) for recall of PWl and PW2. No reasons were given for the application for recall of these two witnesses. Section 147 (4) of the Evidence Act provides that:- I - "The court may in all cases permita witness to be recaiied either for further examination in chief or for further cross-examination 13 and if it does so the parties have the right of further cross- examination and re-examination respectiveiy'' The word used in the above quoted provision of the law is "may''\NW\Q\\ presupposes that it is the discretion of the court to permit a witness to be recalled. Recalling of a witness is the discretion of the court which like any other discretion must be exercised judiciously. In ground 4 of this appeal, the Appellant is complaining that he was prejudiced by the recall of PWl and PW2 and he is asking this court to interfere with the exercise of discretion of the trial court. In the case of Mbogo and Another Versus Shah (1968)1 E.A 93 it was held that 'll Court ofAppeaishouid not interfere with the exercise of the discretion of a judge uniess it is satisfied that he misdirected himseif in some matters and as a resuit arrived at a wrong decision or unless itis manifestfrom the case as a whoie that the Judge was cieariy wrong in the exercise ofhis discretion and that as a resuit there has been a miscarriage ofjustice" The question here is did the trial court exercised its discretion judiciously in making an order for recalling PWl and PW2? In my view it did not. As stated hereinbefore the learned State Attorney did riot give any ground and/or reason to justify the recall of the two witnesses, equally the 14 learned trial magistrate did not give any reason or justification for his order to allow the application for recalling witnesses. I think this was a misdirection on the part of the trial court. The court ought to have given basis of exercising its discretion the way it did. In law, the term judicial discretion entails the exercise of powers by a judge or magistrate based on what is fairi under the circumstances and guided by the rules and principles of law (See Black's Law Dictionary by Bryan A. Garner Edition page 565). Fairness must have basis. Failure to give basis or reasons for allowing the recall of witnesses in this case led to miscarriage of justices and that is the reason I concluded that they were called to fill gaps in prosecution's case. As stated before after the recall, PWl changed her earlier version regarding the time the alleged offence was committed and stated that it was about 05:00 hours. She also gave detailed account regarding the source of light and that there was good lighting. The changing of the version of her evidence regarding time of incident was intended to tally with the testimonies of PW2 who gave similar details regarding time, source of light and conditions of identification despite the fact that she was not at the scene. The recall of PWl and PW2 was intended to match their testimonies with that of PW3 who testified that he responded to the shouting and went toThe scene at 05:00hours, no wonder the trial court did not subject the evidence'of 15 ■ identification to any scrutiny, but because this is a first appellate court in the course of discharging my duty of re-evaluating the evidence adduced during the trial and bearing in mind that I did not have an opportunity to see the witnesses testifying therefore I cannot say anything about their demeanour, I have subjected the testimony of PWl and PW2 to my scrutinying, and it is rny findings that the re-cali of PWl and PW2 was unjustifiable and thus their evidence adduced after the recall should and is hereby expunged from the record. As I have just stated, in their first testimonies PWl and PW3 did not give any explanation regarding the time the victim had the Appellant under her observation, the conditions in which such observation occurred and whether there was good or poor lighting. Now the question I have to answer is whether PWl properly and without any doubt identified the person who raped her on the material morning as the present Appellant?. In deciding this question the most important point is that there is no doubt that according to PWl by 05:30 am it was still dark, it is not disputed that the Appellant was well known to PWl before the incident, but the question is; did PWl properly saw and identified the Appeiiant as the person who invaded and raped her that early hours of morning? 16 In her evidence received on 16. 11, 2023 PWl did not explain the period of time she had her assailant under observation, the conditions in which such observation occurred and the source of light (though there was an attempt to fill this gape when PWl was recalled). In the circumstances like that, danger of mistaken identity were not removed and actually it may have been increased by the fact that the person alleged to be identified by recognition is a person allegedly known to the witness before (i.e. seeing a person known to the witness). Again and still on the evidence of PWl regarding his identification of the Appellant, she stated In cross-examination that the Appellant was arrested in the scene. On the other hand there is evidence of Detective Cpl Chediel (PW5) who told the court that he arrested the Appellant on the next day i.e. 30. 11. 2023 at 19:00hours. PW3 who responded to PWl's immediately after the ihciderit did not say anything about the arrest of the Appellant. He told the court that the incident was reported to village authority. This means the evidence on record is contradictory on the arrest of the Appellant. Ih light of the evidence on record I am unable to agree with the Respondent that the Appellant was properly and correctly identified by the victim. I thus, find that identity of the Appellant was not established. 17 I now turn to consider the Appellant's cautioned statement which was admitted In evidence as Exhibit PII but which was not evaluated and considered by the trial court In Its judgment. I have carefully gone through the records and I find that Exhibit PII which Is said to contain a confession of the Appellant was In first place wrongly admitted In evidence. It was wrongly admitted because It was recorded out of the prescribed time prescribed under Section 50(1)(a) of the Criminal Procedure Act. In his evidence D/Cpl Chedlell PW5 testified that he arrested the Appellant on 30^'^ July 2023 and started to record his cautioned statement on the same day before adjourning It to the following day, that Is to say 3P^ July 2023. There Is nothing on the said statement which shows that Its recording was adjourned to a following day as required by Section 50(2)(a)-(d)of the CPA. Secondly, while PWS testified further that he cautioned the Appellant before he started to record his statement, the statement tendered In evidence shows that the Appellant was not cautioned properly about the law he was alleged to have contravened and the possible punishment for such violation. In law a cautioned statement are oral or written statements made by a criminal suspect under the police custody after being warned that the statement may be used as evidence against him. Because criminal justice Is not a hide and seek game, the warning (I.e. caution statement) must explain the offence charged, the law contravened and the penalty 18 or punishment the suspect may get in the event he is found guilty of the charged offence. Proper warning or caution would enable the suspect to know and well understand the charge against him and the penalty or punishment he is likely to get in the event he is found guilty so that if he confesses he is aware of what he is confessing to and its consequences to him. In the present case, to say the least the Appellant was not so cautioned. It is therefore my finding that the alleged statement does not qualify to be a confession or admission of the facts of the charged offence. The foregoing discussions and reasons are sufficient to dispose of this appeal by allowing it, Accordingly I allow the appeal, quash the conviction and set aside the sentence of thirty years imprisonment. I order that the Appellant be released from prison unless for any other cause he is held. Order accordingly. A. R. MRUMA Op O o X JUDGE n a: LU > :x: 7. 10. 2024. y 19