Hoja Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 11304 OF 2024 (Appeal from the decision in criminal case No 35 of 2023 before the District Court of Kwimba at Ngudu) HOJA MABULA JUMA ................................................................... APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT JUDGMENT 30th September & 30th October, 2024 CHUMA, J. The appellant in this Court is striving to overturn the decision of the trial court where he was convicted and sentenced to life imprisonment for an unnatural offence contrary to section 154(1) (a) (2) of the Penal Code, Cap, 16 R.E. 2019. The appellant alleged to have committed the referred offence on 15.3.2023 at 16.00 hrs at Kibitilwa Village Kwimba District, Mwanza Region. The trial court’s decision has utterly aggrieved the appellant. He has instituted this appeal, challenging both conviction and the sentence fronting about seven grounds of appeal which will be articulated in the course of my assessment. 1|Page This appeal was disposed of through written submission which was filed by the appellant unrepresented and Ms. Matha Mtiti State Attorney for the Republic. Before determining this appeal, I feel compelled to express what I observed from the appellant. When the matter was placed before me for hearing, the parties were ready to proceed for hearing and were allowed to proceed. However, in the course, I found the appellant unaware of what was before the court. I then ordered the appeal be argued via written submission. Going by the filed grounds of Appeal and the appellants’ expression, I must admit that the appellant has no idea of how our criminal justice system operates. It is doubtful even how he managed to follow proceedings before the trial court. Without prejudice to the foregoing observation, I now turn to determine the appeal beforehand. The main issue for determination is whether the case against the (accused) appellant proved in the required standard. It is cardinal law that, in criminal trials, it is the prosecution that is required to prove the case against the accused person beyond reasonable doubt. This position was well amplified by the Court of Appeal in the case of Denis Joram @ Denis Masenga Vs. Republic, Criminal Appeal NO. 78 OF 2020 (CAT-DSM) (Unreported) on page 10 the Court cited with approval the case of George Mwanyingili Vs. Republic, 2|Page Criminal Appeal No. 335 Of 2016 (Unreported) where it was stated as follows; ‘We wish to re-state the obvious that, the burden of proof in criminal cases lies squarely on the shoulders of the prosecution unless any particular statute directs otherwise.’ A similar stance was also held in the case of Issa Reji Mafita Vs. Republic, Criminal Appeal No. 337 ‘B’ Of 2020 (Unreported). More so, the burden the prosecution has in criminal cases is to prove the case against the accused person beyond reasonable doubt. On the first and third grounds of appeal, the appellant alleged to have been convicted on the fabricated evidence and existence of contradictory evidence. On the first ground, the prosecution alleged that SM1 was a reliable witness and explained how the offence was committed and that the best evidence on sexual offences comes from the victim citing the case of Selemani Makumba Vs. R [2006] TLR 386. She went on to submit that SM1 evidence was corroborated by that of SM4 whose evidence revealed penetration on the victim’s anus and had bruised around the front area of the anus. In a contradictory statement, the republic argued that the contradictory evidence was not mentioned. It might be true that the victim was sodomized as testified by SM1 3|Page and SM4 as per the submission of Ms. Mtiti SA for the republic. The pertinent question here is who committed that offence? It should be noted that no one other than the victim witnessed the appellant committing the offence. On page 7 of the trial court judgment, the record reveals that the evidence of SM1 was corroborated by that of SM4 who testified that in the examination he saw bruises in the victims’ anus and sperms which indicates the commission of the offence by the appellant. However, my close look at the proceedings in his evidence SM4 never testified that he saw sperms what he observed is only bruises. This analysis goes contrary to the evidence on record. More so, the bruises seen by SM4 had been there for about one to twenty days. This again is doubtful because the incident is alleged to have taken place on 15.3.2023 and the examination was carried out on 16.3.2023, I have failed to understand the findings of the medical doctor that the bruises had been there about one day to twenty days. The evidence of SM1 further reveals that after committing the offence the appellant fled away to the bush. He shouted and people came and the accused ran away to Ilula. And that he was seen by the victim’s grandmother running. On the other hand, SM2 stated that after arriving at the old Ilula hospital she found a young man standing with many 4|Page people. This young man the accused was holding a younger boy whom she saw up close. She saw a young man who had been stripped of his clothes, and this one was also stripped. After that, she took the victim to an officer known as Kihamba and started looking for the accused now appellant, but he ran away after a short while. This piece of evidence of SM1 and SM2 indicates clear contradictions that create doubt on the prosecution side. This stance was held in the case of Jeremiah Shemweta Vs R. [1985] TLR 228 where the court held that; “... the discrepancies in the various accounts of the story between prosecution witness give rise to some reasonable doubts about the guiltiness of the (accused) appellant...” On the second and fourth grounds of appeal, in which the trial court blamed convicting the appellant without considering defence evidence and that PE1 was not read out in court after admission. I don’t see any need to take much time and energy discussing these two grounds because the record is clear that the defence case was considered in the course of evidence analysis as per page 8 of the trial court judgment. On PE1 as well the record is self-explanatory on page 18 of the lower court proceedings the same was read out. The two grounds of appeal are devoid of merit and dismissed. 5|Page On the added ground of appeal which is to the effect that the identification was poor and no identification parade was conducted. At this point, the appellant alleged that the two didn’t know each other and hence identification parade ought to have been conducted. This fact was contested by the Republic via Ms. Mtiti SA who in her submission stated that there was no need for an identification parade because the victim knew the appellant well before the commission of the offence as per page 11 of the typed proceedings. However, the very fact does not feature on the record. Nowhere is the SM1 recorded stating that he knew the appellant before the event. It might be true that there was no need to conduct an identification parade but not because of the above given reason. I took the trouble to revisit the evidence on record and found that only SM2 whose evidence reflects that she identified the appellant via a white t-shirt and a boot. This description was never mentioned by SM1 in his evidence. He only stated that he knew it was he who came and took him to a bush. No description is given as far as identification is concerned. The position of law is well settled that evidence based on visual identification is regarded as the weakest character and most unreliable hence the court needs to be skeptical of the same. This warning was emphasized in the case of Riziki Method @ Nyumbo Vs. Republic, 6|Page Criminal Appeal No. 80 Of 2008 (CAT-IR) (Unreported) on pages 14 and 15 the Court of Appeal had this to state; ‘…that visual identification evidence is of the weakest character and most unreliable. It must be approached with great judicial circumspection, although it is usual to base a conviction on the basis of evidence of a single identifying witness…it is trite law, however, that a court should act on such evidence when it is fully satisfied that it is watertight, that is it leaving no room for any reasonable doubt, and that not only all possibilities of mistaken identity but also deliberate falsehood (s) meant to mislead are eliminated’ Guided by the above warning and applying herein, I find SM1 who merely alleged to identify the accused person without description be it by attire or body morphologies to enable this court to be assured that, the person who committed the alleged crime were the only accused person and not any other persons herein. As if not enough, this was not done but had it been the accused persons’ descriptions or attire were revealed after the incident by SM2. I expected the witnesses to narrate the description of the accused when first reported the incident let's say to an officer known as Kihamba who was again not called to testify. 7|Page This position was stated by the Court of Appeal in the case of Ambwene Kusajo Vs. The Director of Public Prosecutions, Criminal Appeal No. 461 Of 2018 (CAT-MBY) (Unreported) on page 10 the Court of Appeal cited with approval the case of Cosmas Chaula Vs. Republic, Criminal Appeal No. 6 Of 2010 (Unreported) and had this to state and I quote; ‘…It is now settled that a witness who alleges to have identified a suspect at the scene of a crime ought to give a detailed description of such suspect to a person to whom he first reports the matter to him/ her before such a person is arrested. The description should be on the attire worn by a suspect, his appearance, height, color, and/ or any special mark on the body of such a suspect.’ I doubt if this offence was investigated by police because no one appeared in court to testify in absence of which leaves this court with a number of unanswered questions. This is among the serious offences that need careful investigation as it attracts severe punishment. A similar stance was held by the Court of Appeal in the case of Yohana Chibwingu Vs. Republic, (Criminal Appeal No. 117 Of 2015) [2015] Tzca 447 (5 June 2015) whereby the Court faced with similar situation as the present one. On pages 5 and 6 the Court stated; 8|Page ‘At the end of the hearing of this appeal, we kept on asking ourselves a number of questions to which we had no answers…was the offence not investigated by the police? If so, who investigated it? Why wasn’t the investigator called to testify? If he had testified he would have answered several questions, including for instance, whether PW1 gave a description of the appellant in his first report? Where and when was the appellant arrested?...was any statement taken from the appellant about the incident? We have also wondered why weren’t the chairman of the appellant’s village or the District Commissioner to whom PW1 said he reported, called to testify?’ I subscribe to the above legal position and place it in the instant case. For the reasons herein above, I am of considered view that the prosecution case was not proved beyond doubt to warrant conviction against the appellant. I therefore allow the appeal by quashing the conviction and setting aside the sentence imposed on the appellant. I order that the appellant be set at liberty forthwith unless he is held for some other lawful cause. 9|Page It is so ordered. DATED at MWANZA this 29th day of October, 2024. W.M. CHUMA JUDGE 10 | P a g e Judgment delivered in court before the appellant in person and Ms. Mtiti State Attorney for the Republic this 30th day of October, 2024 W.M. CHUMA JUDGE 11 | P a g e