KIYUNGU JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA CRIMINAL APPEAL NO. 13030 OF 2024 (Originating from Criminal Case No. 223 of 2024 in the Misungwi District Court) JACOB KIYUNGU……………………………………………………………APPELLANT VERSUS THE REPUBLIC……………………………………………………………RESPONDENT JUDGMENT 2nd & 10th December, 2024 KAMANA, J. The appellant Jacob Kiyungu was charged before the District Court of Misungwi at Misungwi with one count of rape contrary to sections 130(1), (2)(2) and 131(1) of the Penal Code, Cap. 16 [RE.2022]. He was convicted and sentenced to thirty years imprisonment. The brief facts of the case are that on an unknown date in May, 2023 at Sanjo Village, Misungwi District in Mwanza Region, the appellant had sexual intercourse with one RM, a girl aged 13 years old. According to RM (PW1), on the date, she did not remember, at night time, the appellant who is her stepfather sneaked into her room where she was asleep and inserted his uncondomed penis into her vagina. 1 She evidenced that due to the act, the appellant impregnated her. She further evidenced that on the next day, she informed her mother upon her return from a burial ceremony but she did not take any action. MH, the victim’s father testified as PW4. In his evidence, he evidenced that in 2023 he received a call from one Mnyilizu who informed him that her daughter who was 13 years old was impregnated by the appellant. He stated that after receiving the information, he went to where the victim was schooling and was informed that the victim had not attended the school since May, 2023. Given that, he reported the incident to the Kigongo Ferry Police Post. Following the report, the appellant was arrested. He stated that upon interrogation, the victim mentioned the appellant as a culprit. Emily Shemhina (PW3) testified that on 13th December, 2023 he received the victim at Bukumbi Health Centre who was brought by his father complaining that she was pregnant. The witness testified that after his examination, he found that the victim had a pregnancy of 29 weeks. The witness tendered a PF 3 which, as per the records, is unclear whether the same was admitted. In his defence, the appellant was brief. He flatly denied committing the offence. 2 From the evidence, the trial court was satisfied that the victim’s age was 13 years and her vagina was penetrated by the appellant’s penis. Its findings were premised on the evidence adduced by the victim that the appellant’s penis penetrated her vagina. Further, the trial court held the view that since the victim was living in the same house as the appellant, there was no way she could have made a mistake so far as the appellant’s identity was concerned. In convicting the appellant, the trial court also placed reliance on the principle that the best evidence in sexual offences is the one adduced by the victim. Before me, the appellant appeared in person and fended for himself. The respondent was represented by Mr. Benedicto Ruguge, learned State Attorney. It should be noted that the appellant has advanced seven grounds of appeal. However, in determining this appeal, I focus on the second ground of appeal as it determines the fate of this appeal. On the second ground, the appellant assailed the conviction as not proved since the victim did not state the source and intensity of light that enabled her to recognize him. Being a layperson, the appellant did not expound the ground. He only asked this court to consider the same as it is. 3 On his part, Mr. Ruguge contended the identification was proper. In explaining, he referred to page 7 of the records on which the victim testified that she lived with the accused in the same house for a long time as his stepfather. Further, the learned State Attorney referred to page 10 of the records on which PW4 (the victim’s father) testified that the victim lived with his stepfather for seven years. In that case, Mr. Ruguge contended that the victim knew the appellant before the incident as his stepfather and hence she properly identified him. This being the first appellate court, I critically examined the evidence adduced during the trial relating to the identification or recognition of the appellant as a culprit by the victim. In her evidence, the victim testified that on an unknown date in May, 2023 at night time while she was asleep, the appellant undressed her and inserted his uncondomed penis into her vagina and left. This evidence shows that the incident that led to the appellant being convicted and sentenced took place at night time. In the absence of light whether natural or man-made, the night time is associated with darkness. Under such a situation, a person’s vision is impaired. Cognizant of that factor, courts have considered the evidence of identification and recognition as a weak one as there is a likelihood of 4 mistaken identity or recognition. The mistaken identity or recognition can occur even in the daytime. However, when it comes to night times, the witness bears the heavy burden of establishing how he identified or recognized the culprit. That being the position, in cases involving evidence of identification or recognition, it is incumbent on the part of the prosecution to lead evidence as to how the witness identified or recognized a person as a culprit. Further, when the incident is alleged to have taken place at night times, the prosecution must provide evidence as to the source and intensity of light that enabled the witness to identify or recognize the culprit. It is not in dispute, that the victim was carnally known and it is a common understanding that whoever inserted his penis into the victim’s vagina was zero distance from her. However, such closeness does not erode the possibility of mistaken recognition so far as the appellant’s recognition is concerned unless there is evidence as to the source of light and its intensity. The position was clearly stated in the case of Issa Mgara @Shuka v. Republic, Criminal Appeal No. 37 of 2005-CAT (Unreported) in which the Court of Appeal stated that: 5 ‘... even in recognition cases where such evidence may be more reliable than identification of a stranger, clear evidence of light and its intensity is of paramount importance. This is because, as occasionally held, even when witness is purporting to recognize someone whom he knows... mistakes in recognition of close relatives and friends are often made.’ As I pointed out herein, in her evidence, the victim was not led to testify as to the source of light and its intensity that made her recognize her stepfather as a person who ravished her at night time. This in my opinion was an important aspect to be proved by the prosecution. In the absence of evidence as to the source and intensity of light, I find it difficult to conclude that the victim recognized the rapist as his stepfather. I wish to comment on the argument by Mr. Ruguge that the best evidence in sexual offences comes from the victim. In this, the learned State Attorney cited the famous case of Seleman Makumba v. Republic [2006] TLR 379. Much as I subscribe to the position of the Court of Appeal in the said case, the principle that the best evidence in sexual offences comes from the victim was not meant to outdo other 6 principles governing evidentiary issues in criminal trials. Issues relating to evidence of identification or recognition are still essential in determining sexual offences. In my view, it is not correct to glorify the victim’s evidence in oblivion of other principles governing evidentiary issues. While pronouncing the principle that the best evidence in sexual offences comes from the victim, the Court of Appeal warned itself as to whether the appellant was properly identified. The Court stated: ‘We are of the firm view that once PW1 and PW2 were believed and the question of mistaken identity eliminated and there were no circumstances or evidence which could give rise to doubt in the mind of the trial court, we can find no justification for interfering with the concurrent findings of the two lower courts that PW1 was raped and that the person who raped her was the appellant.’ Based on that, since the prosecution did not provide any evidence as to how the victim recognized the appellant, the principle laid down in Makumba’s case is inapplicable. 7 The appeal is allowed. I set aside the conviction and sentence meted out against the appellant. I further order his immediate release from prison unless otherwise held for a lawful cause. Order accordingly. Right To Appeal Explained. DATED at MWANZA this 10th December, 2024. KS KAMANA JUDGE 8