SIRAJI ABDALLAH SIRAJI VERSUS THE REPUBLIC

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA CRIMINAL APPEAL NO. 15445 OF 2024 (Arising from the Criminal Case No 172 of 2022 in the District Court of Dodoma) BETWEEN SIRAJI ABDALLAH SIRAJI ………………………………………….…..1ST APPELLANT MUSSA WILLIAM ASHERI ………………………………………..…….2ND APPELLANT IDDI HAMZA MAULIDI……………………………………………….….3RD APPELLANT VERSUS THE REPUBLIC……………………………………………….……………... RESPONDENT JUDGMENT Date of last Order: 11/09/2024 Date of the Judgment: 06/11/2024 LONGOPA, J.: This appeal originates from conviction and sentence to serve life imprisonment for the 1st, 2nd and 4th accused (who are 1st to 3rd appellants herein) while the 3rd accused was sentenced to 6 strokes of cane as he was underage for the offence of gang rape contrary to section 130 (1) 2(a) , 131A(1) and (2) of the Penal Code, Cap 16 R.E. 2022. 1|Page It was alleged that the appellants were on 23rd day of October 2022 at Nzuguni area within the District and Region of Dodoma, did have sexual intercourse with one Adelmas D/O Hezron Sanga. The appellants have denied throughout to have participated in the commission of the offence necessitating the prosecution to call a total of eight (8) and produce five (5) exhibits to prove the case against the appellant who appeared in person without calling any other witnesses apart from themselves or any exhibit. Being unsatisfied with conviction and sentence, the appellants on 6th June 2024 filed an appeal against the whole of the decision of the District Court of Dodoma on the following litany of grounds, namely: 1. That the Learned trial Magistrate grossly erred in law and fact by convicting the appellants while the prosecution side failed to prove the case against the Appellants beyond all reasonable doubts. 2. That, the trial Magistrate grossly erred both in law and fact when convicted the appellants while the trial was un 2|Page procedurally conducted hence offends the provisions of section 10(3) and 9(3) both of CPA (CAP 20 R.E 2022), as this enabled the prosecution side to pirate the court and vaguely inject its witnesses then build up its case from the case already heard in court. 3. That, the learned trial Magistrate grossly erred in law and fact when admitted Exh PE2 without considering that the principles of the law were not adhered. 4. That, the learned trial Magistrate grossly erred in law and fact by failing to notice that the identification at the scene of crime was too crux due to the fact that the Victim (PW1) failed to give out the detailed description of the suspects leave alone the source of the light and its intensity was not disclosed as the law demands. 5. That, the leaned trial Magistrate grossly erred in law and fact by failing to notice that the appellants were arrested on 30/10/2022 but without any justified reasonable cause 3|Page they were arraigned before the court on 22/12/2022 contrary to the procedure of the law (SIC). 6. That, the learned trial Magistrate grossly erred in law and fact by failing to notice that neither the evidence given by PW4 (Doctor) nor Exh PE1(PF3) established the vital element of Rape C/S 130(4)(a) of the penal code (CAP 16 R.E 2019), simply because the bruises in the Vagina of the Victim could be caused by any other factor (Source). 7. That, the learned trial Magistrate grossly erred in law and fact by failing to notice it was not proved whether PW6 was really a government Chemist. 8. That, the learned trial Magistrate grossly erred in law and fact when improperly admitted the prosecution exhibits which were tendered before the court during the trial. 9. That, the learned trial Magistrate grossly erred in law and fact by failing to take part in the proceedings to inform the Appellants of their rights under section 162 of the Criminal 4|Page Procedure Decree cap 14 of the laws although he knew that the Appellants were not represented by an Advocate. 10. That, the learned trial Magistrate grossly erred both in law and fact by failing to notice that the alleged identification parade flawed by irregularities due to the fact that the same capsized both rule 4 and 11 of the identification parade through “PGO” 11. That, the learned trial Magistrate grossly erred both in law and fact by failing to notice that it was evident by the prosecution side the Appellants confessed at the police station that they committed an offence but the said cautioned statement were not brought before the court during the trial without any undisclosed reason from the prosecution side as this was enough for the trial court to draw an adverse inference against the prosecution side, as this was enough for the trial Court to draw an adverse inference against the prosecution side. 5|Page 12. That, the learned trial Magistrate grossly erred in law and fact by failing to give due consideration the defense raised by the Appellants during the trial. It was the appellants prayer that on strengths of all these grounds thus honorable court be pleased to allow this appeal and quash both conviction and sentence imposed upon and set them at liberty. The appeal was heard orally on 11th September 2024. To argue the appeal, the appellant enjoyed the legal services of Mr. Fred Kalonga learned advocate while the respondent had the services of Ms. Sara Anesius and Victoria Njau, learned State Attorneys. In support of the appeal, Mr. Fred Kalonga advocate noted that there are twelve grounds of appeal preferred by the appellants in this instant appeal. However, the Court was dully informed that appellant would submit on the following grounds, namely 1st, 4th, 5th and 12th grounds of appeal 6|Page and that all other grounds are abandoned as they are part and parcel of the grounds argued. On 1st ground of appeal relating to failure to prove the case beyond all reasonable doubts, it was submitted that gang rape was not proved to the required standard on the following reasons: - First, the prosecution failed to disclose source of information that led to the arrest of the appellants. PW 1 who was the victim stated that after the incident of gang rape had happened the appellants left her at the house of one person called Rasi where she slept the whole night until morning whereby this person found the bodaboda rider to take the victim to her home. At this juncture, the victim went to PW 2 place of work at Nzuguni Bar to inform him about the incident of gang rape. PW 1 did not state or describe the features including physical features of the appellants who participated in gang rape and did not mention any of the appellant. It was submitted that PW 2 stated to have gone to police but nowhere the appellants especially PW 2 was mentioned. PW 3 stated to have received the information on 27/10/2022 and on 28/10/2022 is when 7|Page the arrest was done for the 1st and 2nd appellants. There is no disclosure as to what criteria was used to arrest the 2nd appellant. It was the appellant’s argument that though the matter was reported on 24/10/2022 nothing happened until 28/10/2022 as the records are silent that efforts were made to look for and arrest the appellants. The counsel for appellant reiterated that there is no evidence regarding the third appellant who was arrested on 23/02/2023. The issues are why the same was not arrested timely. It is doubtful that the appellant participated in the commission of the offence of gang rape. Second, it was said the appellants were identified at Identification parade. PW 1 stated that he went to the police to identify the 1st and 2nd appellants. PW 5 stated that the identification parade was conducted and the 1st and 2nd appellants were identified. This witness failed to produce Form IPR No. 186 that could have proved the identification parade was conducted and the appellants were identified. It was not established how the identification was done. The 3rd appellant as well as on pages 72-75, PW 5 was recalled regarding the third appellant. PW 5 stated that 8|Page A/Inspector of Police Yusuf is the one who conducted the identification parade. The tendering of the same was questionable. He tendered the summons that Assistant Inspector of Police Yusuf was outside the country as Exhibit PE 4 and also tendered Statement and IPR Form No 186 as Exhibit PE 5. It violated Section 34B of the Evidence Act, Cap 6 R.E. 2019 in particular Section 34B (2) (d) and (e) that require for 10 days’ notice to the opposite party prior to tendering of the statement. It was improperly admitted thus it should be expunged from the record. Thus, in case this document is expunged from the record there is nothing on record to prove the existence of any relationship between the victim and the appellants in relation to the offence of gang rape that is alleged to have been committed by the appellants against the victim. Third, key witnesses were not called and brought to court to testify for the prosecution’s case including the bodaboda rider who took the victim home from the scene of crime. Also, they failed to bring someone called RASI who allowed the victim to sleep at his place. Absence of these 9|Page witnesses breaks the chain of the commission of the offence. On these reasons, it is clear that reasonable doubts are there in this case. On the 4th ground relating to identification of the accused was improper as the victim failed to identify the accused/appellant. PW 1 stated that the 2nd appellant started to approach the victim at Nzuguni Bar but nowhere the 1st and 3rd appellants were identified. At page 2, the victim stated to have been drunk thus it was not possible for the victim to identify the appellants. The lights at the gate are lacking clarification on intensity of the same. It is also common knowledge that capacity to see well for a drunk person is minimized. That is the reason the victim failed to describe the characteristics or features of the appellants. PW 2 testified about the incident on the material night of the commission of the offence but he did not report the same. There was no visit to the scene of crime by the police officers thus the evidence of light at the gate was not corroborated. Identification was not well proved especially colour and height or otherwise of the appellants. 10 | P a g e On identification being improper caused arrest being done in different years i.e. October 2022 and February 2023. This was contributed by the failure to proper identify the appellants. On the 5th and 12th grounds of appeal on the failure to consider defence, it was submitted that it is legal principle that defence evidence must be accommodated in decision making. The magistrate would have noted that arrest was effected on 30/10/2022 and arraignment to court on 22/12/2022 for the 1st and 2nd appellants. The time spent from reporting to arrest i.e. some days and failure to arraign them to court immediately bring a lot of doubts. It was submitted that the 1st and 2nd appellants stated that DNA test was not conducted on the appellants, the scrutiny by the trial magistrate would have discovered that there were taking on samples. There is nothing showing the chain of custody relating to the submission of the samples from the persons that were taken. The trial magistrate would have considered that the improper taking of samples thus PW 6 evidence was not reliable evidence. 11 | P a g e On these grounds, it was the appellants’ submission that there were reasonable doubts on the case against the appellants thus the judgment both conviction and sentence should be set aside, the appellants be set at liberty. On the other hand, Ms. Sara Anesius, learned State Attorney stated that the respondent does not support the appeal but the conviction and sentence as correct and appropriate on the following reasons: On the 1st ground regarding proof of the case, it is submitted that such ground has no merits. The appellants were convicted and sentenced for the offence of gang rape whose ingredients include the participation of more than one offender, the penetration of the victim’s vagina by male organ and that consent was not there. It was argued that the prosecution proved the case through eight (8) witnesses and five Exhibits. PW 1 stated to have ably identified assailants/ offenders as there was sufficient tube light electricity at the gate having seen them first at Nzuguni Bar given the fact that assailants were known to the victim before the incident time. It 12 | P a g e was submitted that at the scene of crime there were sufficient light to identify them thus the appellants were properly identified. Further, the evidence of PW 2 was to the effect that he saw 1st and 2nd appellants at the scene of crime. These witnesses were credible and reliable witnesses. According to the respondent, the victim was credible and reliable witness as she immediately informed PW 2 that the 1st and 2nd appellants did rape her during that material night. The appellants were named as the victim saw prior to incident and the trial court found the evidence of these witnesses reliable and credible thus conviction and sentence. PW 1 was cross-examined and re-examined where she clarified that she was capable to know and understand what was going on. The victim established that it was the appellants who raped her. This was corroborated by DNA test that the same tallied to the 2nd appellant. PW 6 is the person who tendered the DNA test results. There was no broken chain of the same as PW 5 stated that the samples were taken from the appellants and he escorted them to the Government Chemist Laboratory 13 | P a g e Authority for sample taking. PW 6 elaborated the manner in which samples were handled to the DNA Results being brought to court. Further, PW 4, a medical doctor who examined the victim had established that there were bruises found in the victim’s vagina and the victim experienced pain as well as blood was found discharging. PW 6 tendered PF 3 as an Exhibit to support the assertion on his finding that the victim was penetrated. Also, identification parade was conducted against the appellants and all the procedures were considered and adhered thereto. The victim informed the investigator the names of the offenders and the look of their faces thus description. Upon arrest of the 1st and 2nd appellants both were identified on the Identification Parade and tendering and admission of Exhibit PE 4 and PE 5 complied to all legal requirements of section 34B of the Evidence Act, Cap 6 R.E. 2022. It is on record that on 12/12/2023 as revealed at page 68 of the proceedings, the prosecution applied to the court to use the statement, granted the same and served the appellants with the statement to be 14 | P a g e relied upon under section 34B. On 11/01/2024 the statement was tendered and admitted in Court. The ten days had lapsed and there was no objection that came from the appellants against tendering of the statement. There was proof of absence of the person through summons as that person was outside the country thus could not be procured to give evidence thus invoking the use of Section 34B to use the statement on record for that person. Indeed, all the procedures were complied to and the investigator had capacity to tender the exhibits that were in his possession. The appellants were not prejudiced. Exhibit PE 5 reveals the persons who were identified on the Identification Parade. Also, the persons who participated were called including PW 8. They supported the evidence to have participated in the identification parade. On 5th and 12th grounds, it is submitted that the same have no merits. During preliminary hearing, the appellants admitted to have been arrested. The appellants did not cross-examine PW 5 on the long-term incarceration. This is an afterthought. PW 5 stated that he continued with 15 | P a g e investigation thus if there was nothing prejudicing the rights of the appellants after being arrested. The trial court considered, analysed defence evidence and found the same incapable to raise doubts. At this juncture, the court stated that the same had not raised any reasonable doubts on the prosecution’s case. Therefore, this set of grounds is lacking merits. The Court analysed and evaluated evidence of both sides and found that nothing dented the evidence of the prosecution. Also, the key witnesses’ question is irrelevant as the victim properly identified the appellants. Absence of the said witnesses could not have established the ingredients of the offence. Indeed, section 143 of the Evidence Act, Cap 6 R.E. 2022 does not require any specific number of the witnesses except on the strengths of the evidence. Thus, the respondent called for dismissal of the appeal for being delinquent of merits. In rejoinder, it was reiterated that on identification of the appellants was not proper as the victim was drunk and the area was dark. It was reiterated that PW 2 contradicted the lighting at scene of crime as stated 16 | P a g e that the area was dark at the victim’s home. Similarly, PW 1 stated to have been familiar to 2nd appellant but she did not report/ name the offender to the PW 5. On the DNA test, it was stated apparently the procedure was not reliable as the samples were not taken appropriately. The means of taking DNA is questionable. It is common practice under the Government Chemist Laboratory Authority Act that procedure of taking samples must be stated clearly. It is reiterated that regarding the identification parade of the 1st and 2nd appellant appellants, there is no evidence at all that such identification was conducted. Exhibits PE 4 and PE 5 did not comply with the law as the reasons were not stated. On key witnessed, it was submitted that the duo testimonies were essential to prove the assailants/offenders as there are statements that they are the ones who brought the victim to one RASI and the bodaboda driver took the victim home. Further, failure to arraign the appellants to court within required time creates a reasonable doubt as such it is 17 | P a g e reiterated that offence was not proved thus it was a prayer that conviction and sentence be set aside. Having heard the rival submissions from both parties I have dispassionately considered the grounds of appeal in the light of evidence on record to ascertain validity or otherwise of this appeal. I shall demonstrate the validity or otherwise on these grounds of appeal as follows: The first complaint is on failure of the victim to properly identify the appellants. It was argued that the identification is challenges on three fronts. First, that the victim did not manage to describe the identities of the appellants. Second, the intensity of the light was not elucidated by the prosecution. Third, identification parades were improperly conducted. It is on record that PW 1 stated to have been at PW 2 bar watching football match and having a drink when around 22:00 to 23:00 hours the 2nd appellant approached her to have sexual intercourse but the victim refused. There were electric lights at that Epan Bar. The 2nd appellant started to abuse the victim that is when the Manager of bar intervened by 18 | P a g e decided to take the 2nd accused out of the bar. Both victim and PW 2 saw the 2nd accused at the Epan Bar on that material date. It was evidence of PW 1 that she was escorted by PW 2 to her home, the gate was closed she knocked but it was not opened. She decided to go on the back side of the house to call for assistance to open the gate when 1st and 2nd appellant appeared. It was PW 1 evidence that she saw them as there were electricity lights. It was at this juncture 1st and 2nd appellants in accompany of others snatched her while threatening to cut her with machete. It was PW 1 evidence that it was the 1st appellant who commenced to rape the victim. The others followed the suit to rape her and they took the victim to their friend and left. This evidence was corroborated by PW 2 that on 23/10/ 2022 at EPAN Bar where he is manager saw the victim having a drink and when three young men stated to bother her, he took her to the counter and that at around 23:00 hours he escorted her home. It is at that juncture when 19 | P a g e the 2nd accused who was known to him appeared in accompany of others and snatched the victim. According to PW 2, next morning the victim went to his office to inform him that the youngsters who took her that fateful night did rape her thus advised her to go to Police Station. In cross-examination, PW 2 reiterated that incident happened at 23:00 hours but there were electric bulbs and he has no doubt that he recognised the 2nd appellant. It is evident that PW 1 and PW 2 testimonies tally on the fact that they saw the 2nd appellant with his company twice on that fateful day. The first time was at EPAN Bar where the victim was enjoying a drink and the 2nd appellant approached the victim for a night stand sexual intercourse but refused. The second time, the duo saw the appellants at the victim’s residence where PW 2 had escorted the victim. At both places there were electric bulbs lighting the area. It was on this understanding that trial magistrate observed at page 19 of the judgment that victim managed to recognize the accused being assisted by lights which were on at that particular time. 20 | P a g e It is an established law in this country that evidence of visual identification can sufficiently warrant conviction. In the case of Daniel Thomas @ Yusuph @ Ngeni & Another vs Republic (Criminal Appeal No. 120 of 2022) [2024] TZCA 103 (23 February 2024), at pages 25-26, the Court observed that: The trite law is that evidence of visual identification can be the sole basis for founding a conviction if such evidence is watertight and leaves no possibility of errors. In the case Waziri Amani v. Republic [1980] T.L.R.250, the Court propounded conditions precedent for reliance on the evidence of visual identification to found conviction. The conditions were reiterated in numerous other decisions that came after it. They include Chacha Jeremiah Murimi v. Republic, Criminal Appeal No. 551 of 2015 (unreported) in which the Court held as follows: "...To guard against that possibility the Court has prescribed several factors to be considered in deciding whether a 21 | P a g e witness has identified the suspect in question. The most commonly fronted are: how long did the witness have the accused under observation? At what distance? What was the source and intensity of the light if it was at night? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally had he any special reason for remembering the accused? What interval has lapsed between the original and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses, when first seen by them in his actual appearance? Did the witness name or describe the accused to the next person he saw? Did that/those other person/s give evidence to confirm it?" See also: Alfredy Kwezi @ Alfonce v. Republic, Criminal Appeal No. 216 of 2021 (unreported). 22 | P a g e Given the evidence on record that PW 1 and PW 2 saw the appellant at different places on that material date and the electric lights were on, two aspects were established regarding the identification on victim possibilities to identify the appellants and intensity of lights. I am of settled view that there was proper positive identification of the appellants on the incident date. In respect of Identification Parade, it is on record PW 1 stated that when she went to the Police station to identify the 2nd appellant and another as she was informed that they had been arrested. It was PW 1 that on 07/03/ 2023 there were other arrested persons and PW 1 went to Dodoma Central Police Station for identification parade of the 3rd appellant and another person who was sentenced to corporal punishment by stroke of cane. PW 5 testified that on 29/10/ 2022 the 1st and 2nd accused were arrested and accorded all their rights prior to identification parade. According to the testimony of PW 5, the 1st and 2nd appellant were properly 23 | P a g e identified. Also, PW 5 reiterated on 09/03/2023, the rest of the appellants were arrested and they were adequately identified by the victim. In cross examination, PW 5 stated that there was proper Identification parade as the appellant were availed all their rights and that the parade involved 12 persons. Exhibit P.5 collectively was PF 186 Identification Parade Register. PW 7 testified to have participated in the Identification Parade whereby the victim identified two persons on 09/03/ 2023. It is on record that on 12/12/ 2023, the prosecution informed the court that they intended to use the statement of one Inspector Yusuph as he had travelled outside the country vide Section 34B of the Evidence Act and on 11/01/ 2024 the prosecution recalled PW 5 under section 147(4) of the Evidence Act, Cap 6 R.E. 2022 and tendered Exhibit P 4 which was the summons to call Inspector Yusuph and Exhibit PE 5 which was the Police Form No. 186, Identification Parade Register. Its tendering was not objected at all by any of the appellants as reflected in pages 72-74 of the proceedings. 24 | P a g e Totality of oral evidence of PW 1, PW 2, PW 5 and PW 7 reveal that all the appellants were properly identified without any flicker of doubts. As such, it is settled view of this court that there is no doubt that identification of all the appellants was properly done and in accordance with the law. I concur with analysis of the trial court magistrate on pages 20 to 22 of the judgment that there was a proper and positive identification of all the appellants. I shall therefore proceed to dismiss the 4th ground of appeal for being delinquent of merits. The failure to consider defence case was another ground vehemently argued by the appellant. In the view of this Court this ground is far- fetched. It is on record that pages 12-14 of the judgment categorically summarized all the evidence of the defence prior to analysing the case. It is explicit that in pages 18-19 of the judgment the trial magistrate observed that defence evidence was considered but it was found that it did not manage to raise any reasonable doubt to the prosecution’s case. 25 | P a g e In the case of Leonard Mwanashoka vs Republic (Criminal Appeal 226 of 2014) [2015] TZCA 294 (24 February 2015), the Court of Appeal noted that: We have read carefully the judgment of the trial court and we are satisfied that the appellant's complaint was and still is well taken. The appellant's defence was not considered at all by the trial court in the evaluation of the evidence which we take to be the most crucial stage in judgment writing. Failure to evaluate or an improper evaluation of the evidence inevitably leads to wrong and/or biased conclusions or inferences resulting in miscarriages of justice. It is unfortunate that the first appellate judge fell into the same error and did not re-evaluate the entire evidence as she was duty bound to do. She did not even consider that defence case too. It is universally established jurisprudence that failure to consider the defence is fatal and usually vitiates the conviction. 26 | P a g e This guidance by the Court of Appeal is critical to the matter at hand. In the instant appeal, there is ample evidence on record that defence evidence was thoroughly considered. I have demonstrated that the defence evidence was fully summarized by the trial Court. Second, the court considered the evidence to find out if the same raised any reasonable doubts on prosecution’s case and concluded that it did not manage to poke holes on the prosecution evidence. It is important to summarize and analyze evidence of both sides as though evidence of defence might not establish the innocence of the accused, but it may raise reasonable doubts on the prosecution evidence thus impairing the proof of the case to the required standard. This court has perused thoroughly the evidence on record and found that nothing was left unturned in respect of treatment of the defence evidence in determination of the case at hand. I have done so in exercise of noble duty of the first appellate court to re-evaluate the evidence and come up with its own finding supporting the finding of the trial court. It is true that this Court being a first appellate court is empowered to re- 27 | P a g e evaluate the evidence of trial court and come up with its own findings. This is in line with the decision in the case of Haika d/o Chesam Mgao vs Republic (Criminal Appeal No. 37 of 2021) [2024] TZCA 6 (4 January 2024), where the Court of Appeal, at pp. stated that: In our view, the High Court made an obvious error by declining to re-evaluate the evidence, because that is the duty of the first appellate court. We consider this to have been a misapprehension of the law, justifying us stepping into the shoes of the High Court. And when we do so, we find the three issues raised under the fourth ground of appeal to be of great essence. For one, we doubt PW1's credibility in that he did not explain how Anthony Philemon who features even in the seizure certificate, disappeared into thin air. In view of the appellant's account that she was an innocent passenger having been offered a ride, the 28 | P a g e omission to charge her companion raises eyebrows. We have once rebuked double standards in treating culprits when we said in Richard Wambura v. Republic, Criminal Appeal No. 167 of 2012 (unreported), that "justice must never be rationed at all". It is my finding that the 12th ground of appeal on failure to consider the defence evidence in this appeal is lacking merits at all thus I overrule it for being destitute of merits. Another important aspect on this appeal is delayed arraignment to Court. The appellants were of the view that delayed arraignment of the accused persons to court vitiate the validity of the prosecution’s case by raising a lot of doubts given that appellants especially 1st and 2nd appellants were arrested on 30/10/2022 and arraigned to Court on 22/12/2022. It took up to 51 days. It is true that section 32 of the Criminal Procedure Act, Cap 20 R.E. 2022 requires that arrested persons must be arraigned to court as soon as practicable preferably within twenty-four hours of arrest. However, the law 29 | P a g e allows to grant bail or otherwise depending on circumstances of the case especially seriousness of the offence. I have perused the proceedings of the trial court but I could not find anything suggesting that the delayed arraignment did impair the appellant’s rights. There is a plethora of authorities that hold the view that failure to arraign the accused person to court does not necessarily vitiate the proceedings. For instance, in Shabani Salim vs Republic (Criminal Appeal No. 519 2021) [2023] TZCA 18015 (21 December 2023) (TANZLII), at page 24, the Court of Appeal stated that: Luckily, this is not a first scenario the Court is facing. In Jafari Salum @ Kikoti v. Republic, Criminal Appeal No. 370 of 2017 (unreported), while dealing with a case where the appellant's arraignment was delayed for about thirty- nine (39) days, the court had this to say: "The appellant claims this to have offended the mandatory provisions of sections 32 (1) of the CPA. Indeed, as Ms. Ally submitted, 30 | P a g e the evidence is silent as to what made the appellant be arraigned after about 39 days after he was arrested. This is perhaps why Ms. Ally went into speculation that the delay might have been caused by the appellant's endeavours to have the matter settled out of court. Much as we do not find ourselves safe to go into speculation, as Ms. Ally did, we do not think this procedural mishap was fatal as to vitiate the trial of the appellant. Being guided by our previous decision above, we are as well, not ready to work on speculations, as whatever reason we may try to think, it will end up leading us into speculations. Just as it was in the above case, we do not think that failure to arraign the appellant herein within twenty-four (24) hours was fatal as to vitiate the trial of the appellant. In more recent decision of Daktari Jumanne vs Republic (Criminal Appeal No. 602 of 2021) [2023] TZCA 18020 (28 December 2023) (TANZLII), at pages 18-19, the Court of Appeal reiterated that: 31 | P a g e Equally so, in the most recent decision of the Court in the case of Shabani Salim v. Republic, Criminal Appeal No. 519 of 2021, while faced with the same scenario as in this case, Court held at page 24 of the Judgment that: 'We do not think that failure to arraign the appellant herein within twenty-four (24) hours was fatal as to vitiate the trial of the appellant". In the case at hand, records are silent as to what made the appellant be arraigned about 17 days after he was arrested, despite learned State Attorney's submission that, delay was caused by process of investigations of the offence. We have seriously examined the record of appeal, it is our finding that, despite delay to arraign the appellant, did not vitiate the trial. It is certain that delayed arraignment of the appellant did not vitiate the trial of the appellants before the District Court of Dodoma. I shall 32 | P a g e proceed to overrule this ground for being preferred without any cogent merits. The 5th ground of appeal has no merits. Proof beyond reasonable doubts was the last ground argued by the parties. There were diverse opinions on this aspect pointing to different directions. To articulate the same there are only two main aspects that would require attention of this court. First, the elements of the offence. Second burden and standard of proof. In respect of elements of the offence, the gang rape is defined to be offence of rape committed by a group of persons. In the case of Marco Amsi @ Mikidadi & Others vs Republic (Criminal Appeal 295 of 2008) [2011] TZCA 204 (6 October 2011), at pages 10-11, the Court stated that: We would also like to state that according to the evidence on record the offence committed by the appellants is that of gang rape contrary to Section 131A of the Penal Code as the offence was committed by one or more person, in a group of persons. The relevant section provides as follows: 33 | P a g e " (1) Where the offence of rape is committed by one or more persons in a group of persons, each person in the group committing or abetting the commission of the offence is deemed to have committed gang rape. (2) Every person who is convicted of gang rape shall be sentenced to imprisonment for life, regardless of the actual role he played in the rape". Given the status of the evidence of PW1, we are satisfied that such evidence is sufficient to establish the guilt of the appellant for the offence of gang rape contrary to Section 131 A of the Penal Code and can therefore be relied upon. Generally, gang rape involves three elements. First, there must be penetration of the victim’s vagina by male sexual organs. Second, there should be lack of consent from the victim or the victim must be under age i.e. below 18 years of age. Third, the offence must be committed by a group of persons. 34 | P a g e It was evidence of PW 1 that she was raped by the appellants on the incident date. The victim stated that her vagina was penetrated by 1st appellant and then all other appellants followed the suit. This penetration was without her consent and that it was five persons who had sexual intercourse with the victim on that date. All the three ingredients existed in this appeal. In the case of Alphonce Bisege Mwasandube vs Republic (Criminal Appeal No. 630 of 2020) [2024] TZCA 28 (12 February 2024), 13- 14, the Court of Appeal reiterated that: In cases involving sexual offences, the best evidence comes from the victim and that the law does not strictly demand the use of such forensic or medical evidence to prove rape. In the case of Aman Ally @ Joka v. Republic, Criminal Appeal No. 353 of 2019 [2021] TZCA 170 (4 May,2021, TANZLII) the Court pronounced that; "We also find untenable the claim that no DNA or STD evidence on the appellant was introduced to corroborate the victim's medical test results. We endorse the learned 35 | P a g e state counsel's submissions that there is no legal requirement for use of such evidence..." It is a settled law that, the best evidence of sexual offences comes from the victim see Selemani Makumba (supra). Similarly, the provisions of section 127 (6) of the Evidence Act states that, where the court is satisfied that the evidence of a victim of rape is credible, such evidence does not require corroboration to form conviction, even if a victim is a child of tender age. The evidence of PW 1 that she was raped by the appellant was sufficient to establish the ingredient of penetration in this appeal. However, the same is supported two sets of evidence. First, oral evidence of PW 4 and Exhibit PE. 1 stated clearly that there were bruises on the vagina thus evidence of penetration. The second, evidence of PW 7 was to the effect samples of the victim and samples taken from the appellants were subjected to DNA test analysis. The result revealed that the DNA from pubic swab of the victim had correlation with DNA of buccal swab of one 36 | P a g e Mussa Asseri (2nd appellant). Thus, this was a proof that 2nd appellant did penetrate the victim’s vagina. All these have cemented the proof of the ingredients of the offence. It must be noted that DNA evidence is not mandatory requirement of the law. However, it may play a significant role in proof of criminal cases. In Boay s/o Bura vs Republic (Criminal Appeal No. 570 of 2021) [2024] TZCA 717 (13 August 2024) (TANZLII), at page 17-18, the Court of Appeal observed that: DNA evidence is not a legal requirement or a practice in our jurisdiction to prove a sexual offence, as Ms. Maswi correctly argued - see, for example, Robert Andondile Komba v. Republic, Criminal Appeal No. 465 of 2017 (unreported). We certainly do not diminish the importance and weight of DNA evidence as evidence in criminal cases. Nevertheless, in this case, the appellant was captured red- handed, and the evidence was so overwhelming that such DNA evidence was not necessary. 37 | P a g e Also, in the case of Mussa Sebastiani vs Republic (Criminal Appeal 406 of 2018) [2021] TZCA 119 (15 April 2021), pages 7-8, the Court noted that: Similarly ground 5 of the original memorandum of appeal deserves to be dismissed. In this ground of appeal, the appellant argues that there was no proof of rape because the prosecution did not produce DNA test results to link him with the child, the alleged fruit of the rape. On the other hand, Mr. Maleko submitted that rape is proved by penetration and not necessarily by DNA test. He referred us to page 23 of the record where the appellant stated that PW2 consented to the sex with him. It is, we think, enough for us to say DNA test is not a popular means of proving rape in our jurisdiction, given its limitations, perhaps. This informs our settled position that the best evidence of rape comes from the victim. See Seleman Makumba v. Republic (supra) and Jaffary 38 | P a g e Ndabita @ Ngotangwa v. Republic, Criminal Appeal No. 27 of 2016 (unreported). These two decisions of the indicate that rape can be proved by the use of DNA analysis though it is not a must in sexual offences cases. It is therefore evident that ingredients of the gang rape were proved without any flicker of doubts. In concluding, it is important to reiterate on the burden and standard of proof. Oral evidence on record from PW 1, PW 2, PW 3, PW 4, PW 5, PW 6, PW 7 and PW 8 taken together with documentary evidence Exhibit PE 1, Police Form No 3, Exhibit PE 2 Forensic DNA Profiling Test Report, Exhibit PE 3 Sample Receipt Notification (GCLA 01), Exhibit PE. 4 Summons for Witness for Assistant Inspector Yusuf, Exhibit PE 5 collectively PF 186 Identification Parade Register point out to the same direction that offence of gang rape was committed against the victim. In Hezron Ndone vs Republic (Criminal Appeal No. 263 of 2021) [2024] TZCA 15 (6 February 2024), the burden and standard of proof was restated. At page 12, the Court of Appeal reiterated that: 39 | P a g e It is momentous to state that, in our criminal justice system like elsewhere, the burden of proving a charge against an accused person is on the prosecution. This is a universal standard in all criminal trials and the burden never shifts to the accused. As such, it is incumbent on the trial court to direct its mind to the evidence produced by the prosecution in order to establish if the case is made out against an accused person. This principle equally applies to an appellate court which sits to determine a criminal appeal in that regard. In respect of what amount to reasonable doubt, the Court at page 13 stated that: The term beyond reasonable doubt is not statutorily defined but case laws have defined it, in the case of Magendo Paul & Another v. Republic (1993) T.L.R. 219 the Court held that: For a case to be taken to have been proved beyond reasonable doubt its evidence must 40 | P a g e be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed. In the case of Anthony Tito vs Republic (Criminal Appeal No. 605 of 2021) [2024] TZCA 45 (16 February 2024), at pages 13-14, the Court of Appeal stated that: In the case at hand, the trial court believed PW1 as the witness of truth and relied on her evidence to find the appellant's conviction. That finding was upheld by the first appellate Court. It found that whereas the age of the victim was proved by her birth certificate, her evidence that she was raped by the appellant was credible and therefore, proved the offence beyond reasonable doubt. Indeed, as observed by the two courts below, the best evidence in sexual offences is that of the victim. Such evidence of the victim alone may be acted upon without corroboration once the court is satisfied that the same is credible. 41 | P a g e It is vivid that the prosecution managed to establish the case against all the appellant beyond all circumspection. The defence evidence did not manage to raise reasonable doubts thus no holes were poked in the prosecution’s case. Furthermore, the prosecution’s evidence was not challenged through cross examination by the appellants. This made the prosecution’s evidence strong, credible and reliable. In the case of Tumaini Yared Mtoro vs Republic (Criminal Appeal No. 218 of 2022) [2024] TZCA 23 (9 February 2024), at page 19 the Court of Appeal lucidly stated that: It is trite law that, a party who fails to cross examine a witness on a certain matter is deemed to have accepted and will be estopped from asking the court to disbelieve what the witness said, as the silence is tantamount to accepting its truth. As such, it is to the satisfaction of this court the defence evidence did not manage to raise any reasonable doubts on the prosecution’s case. Thus, the court correctly entered conviction against the appellants and 42 | P a g e proceeded to sentence them to serve life imprisonment. There is nothing on record to hold to the contrary. In the circumstances, this appeal is devoid of any merits whatsoever to warrant this court to interfere with the conviction and sentence entered by the trial court. The decision of the District Court of Dodoma in Criminal Case No. 172 of 2022 is hereby upheld for being a correct decision in law guided by available evidence on record. The appeal stands dismissed in its entirety for being destitute of any cogent merits. It is so ordered. DATED at DODOMA this 6th day of November 2024 E.E. LONGOPA JUDGE 06/11/2024. 43 | P a g e