OMARY HASSAN

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 12467 OF 2024 (C/F Criminal Case No. 23 of 2023 before the District Court of Kondoa) OMARY HASSAN ............. ......APPELLANT VERSUS THE REPUBLIC................... ........... RESPONDENT JUDGMENT Date: 26/2/2025 & 7/3/2025 MASABO, J:- In the District Court of Kondoa, the appellant was charged with two counts, namely rape contrary to section 130(1) (2) (e) of the Penal Code Cap. 16 R.E 2022 and grave sexual abuse contrary to section 138C (1) (a) and (2) (b) of the Penal Code Cap 16 R.E 2022. The particulars of the offence were that, on 12th July 2023 at Pahi village within Kondoa District, Dodoma Region, the appellant unlawfully had carnal knowledge of one PW1, a girl child aged 14 years old, and committed a grave sexual abuse against PW6, a girl child aged 8 years. To prove its case, the prosecution paraded six witnesses. The victim of the first count testified as PW1. Her sibling testified as PW2. The victim's grandfather testified as PW3 while the doctor who examined her testified as PW4. PW5 was the investigator of the case, and PW6 was the victim of the second count. Briefly, the evidence from these witnesses was that the victims used to live with their grandmother. On the fateful day, she went to Dodoma Page 1 of 15 for a medical check-up, leaving the victims at home. She asked the appellant to go and sleep in her house. Indeed, the appellant went at 20.00 hours. When he arrived, he asked PW1 to cook for him. After she cooked, she served him, and when he finished eating, he told them to sleep. At midnight hours he entered the room where the victims were sleeping and molested them. PW2, who was sleeping in the same room, witnessed the incident. On the following day, 21/07/2023, the matter was reported to the police station. PW1 was issued with a PF3. She was then medically examined by PW4, who found that she had been penetrated. At the closure of the prosecution's case, the appellant was found with the case to answer. When required to give her evidence, he refuted the charges and raised an alibi for defence. Convinced that the case was sufficiently proved, the trial court convicted the appellant of both offences and sentenced him to a concurrent sentence of 30 years imprisonment for each count and a compensation of Tshs 1,000,000/= per victim. Aggrieved, the appellant has knocked on the doors of this court with an appeal based on eleven grounds of appeal which I shall summarise as follows: One, the case was not proved beyond reasonable doubt. Two, the credibility of prosecution witnesses was not assessed. Three, there were discrepancies in the evidence adduced by the prosecution witnesses. Four, material witnesses (Mama Luckman and the victims' grandfather) were not called to testify. Five, no sentence was entered by the trial court. Six, the trial court erred in relying on the expert opinion. Seven, the trial court improperly admitted exhibit Pl, which was Page 2 of 15 illegally obtained; the cautioned statement was made involuntarily before WEO. Eight, the appellant was not properly identified. Nine, the case against the appellant was cooked and fabricated, taking into account the time the offence was committed and the time when the victims were medically examined. Ten, the victim's age was not proved. Lastiy, the defence evidence was not considered. The appeal came for viva voce hearing on 26th February 2025. Ms. Patricia Mkina, learned Senior State Attorney, represented the respondent Republic, whereas the appellant appeared in person. The appellant adopted his grounds of appeal. He prayed that they be positively considered and the appeal be allowed. In reply, Ms. Mkina opposed the appeal. She consolidated the 1st, 2nd, 3rd, 6th, 8th, 9th and 10th grounds of appeal and submitted on the 4th, 5th, 7th and 11th separately. Submitting on the consolidated grounds, she argued that the conviction was well-grounded as the two counts were both proved. On the first count, penetration and the age of the victim, which are the essential ingredients of the offence of rape committed against a child below 18 years, were all proved. The proof came from PW1, who stated in pages 5 and 6 of the proceedings that the appellant penetrated her at around 00:00 hours. This was corroborated by PW6, who stated at page 16 of the proceedings that she witnessed the incident. Further corroboration was from PW4, the doctor who medically examined the victim. She found her with bruises on the vagina and with no hymen. Also, he stated that the victim's vagina had a fluid which shows that she was infected with sexually transmitted disease. Page 3 of 15 This evidence, she argued, sufficed because, as per 130(4)(a) of the Penal Code, penetration, however slight, suffices as proof of sexual intercourse. The victim's age was proved by PW1 and PW3. PW1 told the court that she was 14 years old, and her grandfather, PW3, stated that on the date of the incident, the victim was 14 years old. These testimonies were sufficient proof as stated in Isaya Renatus vs R, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 TanzLII. Ms. Mkina argued further that the appellant was well implicated. He was credibly identified by PW1, PW2 and PW6. These witnesses knew the appellant very well as he was their uncle. Also, on the material date, they received him, cooked for him, and served him food before they went to sleep. The time interval of their interaction was fairly long and favoured an accurate recognition underscored in as of Waziri Aman v Republic (1980) TLR 250. Submitting on the second count, Ms. Mkina argued that the offence against PW6 was proved by PW6 who stated that there was penetration. Her evidence was corroborated by PW1 who said that he saw the victim molesting PW6. This evidence sufficed to mount a conviction considering that, in sexual offences, the evidence of the victim is the best. On the 4th ground of appeal, it was submitted that, while it is true that Mama Lukuman and the victim's grandmother were not paraded as witnesses, the evidence on record sufficiently proved the commission of the offence and implicated the appellant. The omission is thus inconsequential as the number of witnesses is immaterial in proving a case (see section 143 of the Evidence Page 4 of 15 Act and the case of Siaba Mswaki vs Republic Criminal Appeal No. 401 of 2021[2021] TZCA 562). On the 5th ground, it was argued that it was without merit because the proceedings show that the appellant was sentenced to a jail term of 30 years for each offence, and the two sentences were to run concurrently. Ms. Mkina also convinced the court to dismiss the 7th ground of appeal because the PF3, which it seeks to challenge, did not fault the issuance, handling and admission processes. Its substance was duly read after admission. The appellant's complaint on the accuracy of the caution statement was also sternly objected to. It was argued that the complaint is misconceived as the caution statement was neither tendered nor admitted during trial. On the 11th ground, it was argued that it has no merit. The appellant's defence, including his belatedly raised alibi, was duly considered. Although the alibi was raised in the course of his defence, the judgment shows that it was discussed but found to have been raised contrary to section 194(5) of the Evidence Act which provides that an alibi, if any, should not be raised in the course of the defence. In the foregoing of the above, Ms. Mkina prayed that the appeal be dismissed and the appellant continue to serve his sentence. Invited to comment on the reply submission, the appellant argued that he was not sufficiently implicated as PW1 did not see the person who knew her carnally. PW2 did not eye witness the incident. She said she was told and PW3 stated that it was her sister who told her to report the matter to the Page 5 of 15 teacher. This means that she had no first information. Thus, there was no evidence against him. His defence of <?//#/was also unfairly ignored. That is all from the parties. It have carefully considered the submission by the parties alongside the evidence on record as briefly summarized in prelude. The eleven grounds of appeal and the submissions from the parties, revolve around the following hree issues. One, whether the offence was proved to the required standards. Two, whether the appellant was properly identified and implicated and lastly, whether the appellant's defence was considered. Starting with the first issue, it is a cardinal principle of law that the burden of proof in criminal cases lies on the prosecution and the standard thereof is proof beyond reasonable doubt. Restating this principle in the case of Nyanchobe Ryoki @ Gunza vs Republic (Criminal Appeal 250 of 2019) [2023] TZCA 220, the Court of Appeal held that: uWe wish to reaffirm the elementary principle of law that in criminal cases the duty of the prosecution is twofold. One, to prove that the offence was committed, and two, that the accused is the one who committed it. See, for instance, the case of Maliki George Ngendakumana vs. Republic, Criminal Appeal No. 353 of 2014 in which while deliberating on the evidence of the victim of rape we emphasized that it is not enough to establish rape but rather the prosecution has to be able to prove beyond reasonable doubt that it is the accused who committed the offence and no one else." Page 6 of 15 Cementing the principle further in Leonce Evarist Maro vs Republic (Criminal Appeal No. 458 of 2020) [2024] TZCA 341 TanzLII, it stated thus: " it is acknowledged that always the burden of proof in criminal trials rests on the shoulders of the prosecutor and the standard is beyond reasonable doubt. For clarity, see sections 3 (2)(a) of the Evidence Act and the decisions of the Court in Makolobela Kulwa Makolobela and Eric Juma alias Tanganyika Vs. R, [2002] T.L.R. 296 and Akwino Malata vs. R (Criminal Appeal No. 438 of 2019) [2021] TZCA 506 (21st September, 2021, TANZLII), among many. In Samson Matiga vs. R, Criminal Appeal No. 205 of 2007 (unreported) which was followed in the case of Daimu Daimu Rashid @ Double D vs. R, (Criminal Appeal No.5 of 2018), [2019] TZCA 366 (4th November, 2019, TANZLII), the Court held: "A prosecution case, as the law provides, must be proved beyond reasonable doubt. What this means, to put it simply, is that the prosecution evidence must be so strong as to leave no doubt to the criminal liability of an accused person. Such evidence must irresistibly point to the accused person, and not any other, as the one who committed the offence." Also see Magendo Paul & Another vs. Republic [1993] T.L.R. 219" Did the prosecution discharge this duty? As stated above, the appellant was charged and convicted with two counts. In the second count, which I prefer to start with, he was charged with the offence of grave sexual abuse which is a creature of section 138 C (1) (a) and 2(b) of the Penal Code Cap. 16 R.E Page 7 of 15 2022. The essential ingredients of this offence are stipulated under section 138C (1) which reads: - 138C (1) Any person who, for sexual gratification, does any act, by the use of his genital or any other part of the human body or any instrument or any orifice or part of the body of another person, being an act which does not amount to rape under section 130, commits the offence of grave sexual abuse if he does so in circumstances falling under any of the following descriptions, that is to say - (a)Without the consent of the other person; The particulars of the offence in the present case were such that, on the fateful date, the appellant committed a grave sexual abuse against PW6, a girl child aged 8 years by rubbing his penis on her vagina without her consent. To ground a conviction for this count, the prosecution had to prove that indeed, the appellant rubbed his penis on PW6's vagina. Intriguingly, the record is totally silent. None of the witnesses stated that the appellant, for sexual gratification, rubbed his penis on PW6's vagina. Even PW6, who was the victim of the purported offence, did not state so. Her evidence which was full of inconsistencies, suggest that she was raped. She stated at 16 of the proceedings that the appellant entered the bedroom undressed her and raped her and having finished he undressed PW1 and raped her. She shortly thereafter, in the course of cross examination, contradicted this as she told the court that, it was PW1 who awakened her up to see the accused who was raping her (PW1). In re-examination, she stated that PW1 told her that the appellant was undressing her (PW6's) pants, but when she (PW6) woke up, she found out that her pants had not been undressed. PWl's version was that when the appellant entered their room, he took his manhood and wage a or ib penetrated it into PW6's vagina and having finished he turned to her and raped her. As these were the only two eye witnesses, it is crystal clear that the second count remained unproved. The conviction and sentence in respect of this count cannot, therefore, be sustained. Back to the first count of rape, it was alleged that the appellant raped PW1, a girl child aged 14 years. As correctly submitted by Ms. Mkina, since the victim was below the age of 18, proof of rape entailed proof of two essential elements, namely, penetration of the appellant's manhood into PWl's vagina, however slight, and second, that PW1 was below the age of majority. Concerning the age of the victim, the appellant is of the view that it was unproved, whereas Ms. Mkina has passionately argued that the age of the victim was proved. Expounding her submission she reasoned that the law demands that proof of the age of the victim must come from the victim, parent, relative, medical practitioner, or through production of a birth certificate as stated in Issaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 [2016] TZCA 218, TanZLII and a plethora of many other authorities. In the present case, such proof is discerned from the testimony of PW1 herself and her grandfather who testified as PW3. Both testified that PW1 was 14 years old. Their account was uncontested and I am therefore fortified that the proof of age was watertight as it entertained no doubts. On penetration, which is the second element, the relevant evidence is the testimonies of the victim (PW1), PW6 and PW4, the doctor who examined the victim and found her with bruises and with no hymen. There was a PF3 which was admitted as Exhibit Pl. The appellant complained in the seventh Page 9 of 15 ground of appeal that the PF3 was wrongly issued and admitted. But the evidence on record does not suggest so. As correctly submitted by Ms. Mkina, the proceedings show that the PF3 was procedurally issued by PW5, and the report therein was made by PW4, Dr. Helen Kisanga, who medically examined the victim on 21/7/2023. Also, it was this doctor who tendered it in court after it was admitted and marked as Exhibit Pl, its substance was read out loudly in court. In the foregoing, I did not decipher the alleged illegality and accordingly find it to have been procedurally admitted. PW1 who was the victim, told the court that when the appellant entered the room at midnight, he raped Asha. Thereafter, he went to her and undressed her. He then opened her legs and inserted his penis into her vagina. PW6 had a similar story. She narrated that after the appellant had raped her, he undressed PW1 and raped her. Corroborating this narration, PW4 stated that when she examined PW1 on 21/7/2023 she found her with bruises in her vagina and with no hymen. She also observed that PW1 had a whitish fluid discharge from her vagina suggesting that she had vaginal candidiasis. As per the record, PW1 was medically examined immediately after the incident. Her medical examination by PW4 was conducted 9 days after the incident. These circumstances demanded that PW4's evidence be as elaborative as possible to link her findings with the incident. For instance, she ought to have described the state of the bruises, that is, whether they were tender or not. This would have helped the court in ascertaining whether the bruises were from the alleged rape and not any other incident. Page 10 of 15 Although conspicuous, this omission, considered in the light of established principles on proof of sexual offences, is less consequential because, as correctly submitted by Ms. Mkina, the law in in our jurisdiction is well settled that, the true evidence of rape has to come from the victim (see, Selemani Makumba v. Republic [2006] T.L.R. 379 and Bakari Seif vs Republic (Criminal Appeal No. 189 of 2022) [2025] TZCA 67 TanzLII). Therefore, if at the end of this reappraisal of evidence it is established that PWl's testimony was credible and the appellant was sufficiently implicated, the conviction and sentence in respect of the first count will remain intact. While reading the record, I have observed that the testimony of PW1 who narrated very well how she was penetrated, and that of PW6 who corroborated her story, were uncontroverted. The appellant had an opportunity to controvert these narrations in cross-examination, but he did not seize it. As a result, they remained intact. Accordingly, guided by the above principle, I am fortified that the prosecution ably proved that PW1 was penetrated. The offence of rape was therefore committed against her. What has remained to be determined is whether the appellant was properly identified and sufficiently implicated. Convincing the court to reverse the trial court's finding, the appellant has fronted the following three complaints: he was not properly identified (8th ground of appeal); his defence was not considered (11th ground of appeal); there was an omission to parade material witnesses (4th ground of appeal). Through the 8th ground of appeal, he has lamented that, the offence was committed at night and the evidence Page 11 of 15 implicating him was, predominantly, of visual identification. Yet, it was not free from mistakes. The trial magistrate was not oblivious to the rule on evidence of visual identification. In pages 8, 9 and 10 of the judgment, he cited the case of Waziri Aman v Republic (supra) which is the landmark authority in evidence of visual identification. Guided by this decision, he concluded that the identification was watertight. The principle in Waziri Aman vs R (supra), as replicated in a plethora of subsequent decisions of the apex court and this court, is that evidence of visual identification is the weakest type of evidence. It should not be hastily relied upon to ground a conviction unless all the possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight (see James Kisabo @ Mirango and Another vs Republic Criminal Appeal No. 216 of 2006 [2011] TZCA 106 TanzLII (unreported); Christopher Chacha @ Msabi & Others vs Republic (Criminal Appeal No. 235 of 2009) [2016] TZCA 792 TanzLII and Rajabu s/o Issa Ngure vs Republic Criminal Appeal No. 164 of 2013) [2013] TZCA 461 TanzLII, Alfredy Kwezi @ Alfonce v. Republic, (Criminal Appeal No. 216 of 2021) [2022] TZCA 355 TanzLII and Eliapenda Zephania Zakaria @ Kicheche vs Republic (Criminal Appeal No. 675 of 2021) [2024] TZCA 728 TanzLII. In Alfredy Kwezi @ Alfonce v. Republic (supra), the Court of Appeal, while underscoring the importance of ensuring that the conditions for identification are favourable, stated that: Page 12 of 15 "...before a court can found conviction basing on visual identification, such evidence must be watertight so as to remove the possibility of honesty but mistaken identity. In such cases the court is required to consider, among others, the following matters; one, the time the witness had the accused under observation; two, the distance at he observed him, three, the conditions in which such observation occurred, for instance whether it was day time or night time, whether there was good or poor lighting at the scene; four, whether the witness knew or had seen the accused before or not; and five, all factors on identification considered, it should be also be plain that were any material impediment or discrepancies affecting the correct identification of the accused person by the witness" And in Byamtonzi John @ Buyoya vs Republic (Criminal Appeal No. 289 of 2019) [2021] TZCA 385 TanzLII, the Court of Appeal while citing its previous decision in Hassan Said v. Republic, Criminal Appeal No. 264 of 2015 (unreported) stated that; "It is, however, now settled, that if a witness is relying on some source of light as an aid to visual identification such witness must describe the source and intensity of such light in details. The Court has repeatedly in its various decisions in this respect, emphasized on the importance of describing the source and the intensity of the light which facilitated a correct identification of the appellants at the scene of crimes. Since the offence herein was committed at midnight, it was crucial for the prosecution's witnesses to state explicitly how the appellant was identified. They had to state whether the source and the intensity of the light by which Page 13 of 15 the accused was identified but they failed. What I have grasped from PWl's testimony, especially on page 6 of the proceedings, is that after the offence was committed, PW1 went to another room where PW2 was sleeping. She turned the light on but the appellant asked them to switch it off. PW6 who testified that she managed to identify the accused by aid of the bulb (see page 16 of the trial court's proceedings), but she did not describe the intensity of the light from such a bulb. She did not state whether the bulb was in the same room where they had slept or in the next room, as stated by PW1. While not underrating the undisputed fact that the victims and the appellant were related and that on the fateful day, they spent a long time together during which PW1 cooked food for appellant and served him the food she had cooked, the facts which significantly narrows the chances for mistaken identity, I am mindful that the room in which the offence was committed had no door meaning that it was wide open and easily accessible. This fact, considered conjointly with the shortcomings in the description of the source of light and its intensity, has entertained a doubt on the credibility of the identification, and because of that doubt, I am constrained to hold, as I do that, that the identification was not watertight. Accordingly, the 8th ground of appeal is found to have merit. Since the evidence of visual identification was the sole evidence implicating the appellant, having allowed the 8th ground of appeal, I do not see the need to proceed to the remaining grounds as this finding disposes of the appeal in the first count. Page 14 of 15 In the foregoing, I allow the appeal in respect of both counts, quash the conviction in both counts and set aside the concurrent sentence of 30 years imprisonment and the ancillary orders for compensation to the victims. It is ordered that the appellant be discharged unless he is otherwise held for a lawful reason. DATED and DELIVERED at DODOMA this 7th day of March 2025. J. L. MASABO JUDGE Page 15 of 15