PASIKALI JAPHET KIJOTA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 19475 OF 2024 (Originating from Singida District Court in Criminal Case No. 153 of 2023) PASIKALI JAPHET KIJOTA................. ..APPELLANT VERSUS THE REPUBLIC........................... RESPONDENT JUDGMENT 5/03/2025 & 28/03/2025 MASABO, J.:- The appellant is aggrieved by a judgment of the district court of Singida in Criminal Case No. 153 of 2023 in which he was convicted of rape and sentenced to 30 years imprisonment. As per the charge sheet and the record in the lower court file, the appellant was charged with an offence of rape of an adult female person namely AS (true name withheld) contrary to section 130(1) (2) (a) and 131 of the Penal Code Cap. 16 R.E 2022. The particulars of the offence were that on 7th April 2023 at Makuro area, Mtinko Ward within the District and Region of Singida, the appellant unlawfully had sexual intercourse with AS against her consent. The accused person entered a plea of not guilty. As a result, the matter went to a full trial whose conviction and sentence are now challenged. In his petition of appeal, the appellant set out seven grounds of appeal which I summarize as follows: One, the prosecution did not prove the case beyond reasonable doubt. Two, the conviction was based on the weakness of the Page 1 of 12 defence. Three, the trial court erred to convict the appellant while the victim did not testify in court. Four, PWl's evidence was not received on oath hence contrary to the provision of the law. Five, the court erred in not using the mobile court in hearing evidence of the victim. Six, PW5, the doctor who examined the victim, did not testify as to whether the sperms found in the victim's vagina belonged to the appellant. And, seven, the cautioned statement was recorded in contravention of the law as the appellant was not informed of his right before the statement was recorded. With leave of the court, the appellant filed 12 supplementary grounds which I summarize into the following ten grounds. One, the trial court proceedings do not show if the memorandum of undisputed facts was read over to him contrary to section 192(3) of the Criminal Procedure Act Cap. 20 RE 2022 (the CPA). Two, the court erred in not visiting the locus in quo to satisfy itself of the circumstances of the offence and whether the victim was fit to testify in court. Three, the court erred in law and fact in receiving evidence from PW5 and exhibit P2 without seeing the victim. Four, the trial court erred in not informing the accused of his right to be represented by a counsel contrary to section 162 of the CPA. Five, the trial court contravened sections 10(3) and 9(3) of the CPA. Six, the appellant was not properly identified because: the intensity of light, the distance between the appellant and the witness and the time taken by the witness in observing the appellant were not stated by the prosecution witnesses; the appellant was not named soon after the commission of the offence and the prosecution witnesses did not state how they identified the appellant when reporting the incident to the police station. Seven, the cautioned statement was admitted contrary to Page 2 of 12 sections 53, 54, 58, 57(2) (a) & (b) of the CPA. Eighty there was a contradiction in the evidence adduced by PW2 and PW4. Nine, the appellant was arrested on 16th April 2023 but arraigned in court on 28th April 2023 contrary to the law. Lastly, exhibit P3 does not show how the appellant was identified. In the viva voce hearing through virtual court, the respondent was represented by Mr. Nehemia Kilimuhana, learned State Attorney whereas the appellant was unrepresented. He fended for himself. Invited to support his appeal, the appellant adopted his grounds of appeal and briefly submitted that the respondent did not prove the case against him. Thus, he was wrongly convicted and sentenced. He then prayed that his appeal be allowed and he be discharged. In his reply, Mr. Kilimuhana, learned State Attorney, supported the appellant's lamentation that the case against him was not proved. He submitted that the 3rd and 7th grounds of appeal and the 6th and 9th additional grounds of appeal have merit and they are sufficient to dispose of this appeal. Submitting on the 3rd ground of appeal, he argued that as correctly lamented by the appellant, the victim was not paraded as a witness in court because she was sick. Her evidence was in terms of her statement which was admitted as Exhibit PE3. He proceeded that, although admission of such statements is permitted under 34B of the Evidence Act, Cap. 6 R.E. 2022, in the present case, such admission was marred by irregularities as it did not comply with the conditions set out under section 34B (f) of Evidence Act that requires that at the end of the statement sought to be produced there must Page 3 of 12 be a declaration that the witness has read the statement or that it has been read out to him/her. Since this declaration was missing, the statement ought not to have been received as evidence. It should, consequently, be expunged from the record because as stated by the Court of Appeal in Manoni Isheli vs R, Criminal Appeal No. 193 of 2022 [2004] TZCA 1225 TanzLII, the conditions set out under paragraphs (a) up to (f) of section 34B are compulsory and must all be complied with cumulatively. The expungement, he argued, will leave the record with no evidence of the victim which as stipulated in Seleman Makumba vs R [2006] TLR 384 is the best evidence in rape cases. The case will therefore remain unproved and the conviction cannot be sustained. The learned counsel submitted further that, the 7th ground and the 9th additional ground, are also with merit as the procedure for the admission of the caution statement was not complied with. As per the record, the appellant repudiated the statement at the admission stage. It was, therefore, incumbent that an inquiry be conducted to ascertain its voluntariness but it was not. The omission was a fatal irregularity warranting the expungement of the caution statement from the record. On the 6th ground and the 12th additional grounds, it was submitted that indeed the appellant was not positively identified. The witnesses did not sufficiently explain how they identified him. PW1 stated that he identified the appellant through torchlight but did not describe the intensity of such light. Also, she did not state the distance between her and the appellant, the time she observed the appellant and his attire on that day. The identification was Page 4 of 12 therefore short of the requirements set in the case of Waziri Amani vs Republic [1980] TLR 250. In conclusion, Mr. Kilimuhana submitted that it is crystal clear that the appellant was mistakenly convicted and sentenced by the trial court. Thus it is fair that the appeal be allowed, the conviction and sentence be quashed and set aside and the appellant be discharged. Having considered the submissions by the parties and thoroughly read the record from the lower court, I will now proceed to determine the appeal. The main issue for determination is whether the case against the appellant was proved. Since the respondent has supported the appeal, I prefer to start with the three points on which the appeal has been supported. The first point regards compliance with the provision of section 34B of the Evidence Act vide which the victim’s statement was admitted. I am in full agreement with the learned State Attorney that although the statement by a person who cannot be summoned as a witness is admissible in lieu of his/her oral or direct evidence, such admission is subject to the conditions stipulated under section 34B (2) (a) to (f) of the Evidence Act which states that:- 34B. (1) In any criminal proceedings where direct oral evidence of a relevant fact would be admissible, a written statement by any person who is, or may be a witness shall subject to the following provisions of this section, be admissible in evidence as proof of the relevant fact contained in it in lieu of direct oral evidence. (2) A written statement may only be admissible under this section:- (a) Where its maker is not called as a witness, if he is dead or unfit by reason of bodily or mental condition to attend as a witness, or mental condition to attend as witness, or if he is outside Tanzania and it is not reasonably Page 5 of 12 practicable to call him as a witness, or if all reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation of any law he cannot attend; (b) If the statement is, or purports to be signed by the person who made it; (c) If it contains a declaration by the person making it to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if willfully stated in it anything which he knew to be false or did not believe to be true; (d) if, before the hearing at which the statement is to be tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; (e) if none of the other parties, within ten days from the services of the copy of the statement, serve a notice on the party proposing or objecting to the statement being so tendered in evidence; (f) if, where the statement is made by a person who cannot read it, it is read to him before he signs it and it is accompanied by a declaration by the person who read it to the effect that it was so read. As correctly submitted by Mr. Kilimuhana, the law is settled that the conditions above need be cumulatively complied with (see Shida Luanda Aidan @Emilian vs Republic Criminal Appeal No. 192 of 2014 [2016] TZCA 652 TanzLII and Manoni Isheli vs R (supra). Noncompliance with any of them is a fatal irregularity with stern consequences. In the present appeal, it is demonstrated through page 33 of the trial court's proceedings that the victim's evidence was in the form of a statement tendered by the Page 6 of 12 prosecutor of the case who prayed that it be admitted under sections 34B (1) and (2) of the Evidence Act because its maker, the victim, had physical and mental problem hence unable to testify in court. The statement was tendered by PW6 A/Isp. Lucas Makaya, who recorded it and it was admitted as Exhibit PE3. The record further shows that before its admission, a copy of it was supplied to the appellant and he was given 10 days to file an objection if any. When the case came for the continuation of the hearing on 26th February 2024 after the lapse of 10 days, the appellant objected the admission of the statement insisting that he wanted to see the witness in court, not otherwise. The objection was overruled and the statement was admitted as Exhibit PE3. Upon examining the statement, I have observed that, it has the deficiency stated by Mr. Kilimuhana as it does not show whether the witness read it or it was read to her before she signed it and there is no declaration by the person evidencing that it was read. The mandatory condition set out under section 34B(f) was therefore offended. The statement was rendered incompetent and inadmissible by this error and it is consequently expunged from the records. The court has been further told that the cautioned statement which was crucial evidence implicating the appellant was improperly admitted. From the record, it is observed that when PW3 tendered it for admission, the appellant repudiated it. He stated that: "This is not my statement, I had never adduced a statement at the police station. I was taken by this witness telling me he was going to interrogate me but he gave me Page 7 of 12 a paper to sign. I asked what am I signing? I asked three times, later he called his fellow and they beat me with a club, and he took my hand to sign." The trial magistrate, while admitting that such was a repudiation, overruled the objection and held that the objection was a matter of fact which needed to be proved and the accused would challenge the same during cross- examination. The cautioned statement was admitted as exhibit PEI. This was a fatal irregularity as it offended the cardinal law on the admissibility of confession statements which requires that for a confession to be admitted and relied upon, it must have been voluntarily made. Where, like in the present case, such a statement is repudiated or retracted, the trial court must stop everything and conduct an inquiry if the trial is before a subordinate court or a trial within a trial for trials before the High Court, to ascertain its voluntariness. There is a plethora of authorities in this rule. For instance, in the case of Baraka Lusekelo Kibona &Another vs Republic Criminal Appeal No. 189 of 2021 [2024] TZCA 579 TanzLII, the Court of Appeal, restating this principle, held that: "It is the law, under subsection 2 of section 27 that, where the voluntariness of procurement of a confessional statement is questioned either by way of retraction or repudiation, the burden is on the prosecution to prove, beyond reasonable doubt, that the same was procured voluntarily. This is done by the trial court conducting a trial within a trial, if it is the High Court and an inquiry, if it is a subordinate court." Page 8 of 12 Further in the case of Bundala Mahona & Another vs Republic Criminal Appeal No. 224 of 2013 [2014] TZCA 2141 TanzLII, it held that: "Secondly, as to the issue of failure to conduct an inquiry when the 1st appellant's cautioned statement was tendered in court, we are of the opinion that it is trite law that if the objection is made after a trial court has informed the accused of his right to say something in connection with the alleged confession, the trial court must stop everything and proceed to,conduct an inquiry into the voluntariness of the alleged confession. Such an inquiry must be conducted before confession is admitted in evidence." Noncompliance constitutes a fatal irregularity with stern consequences as stated in Sabas Bazil Marandu @Myahudi vs Republic Criminal Appeal No. 299 of 2013 [2014] TZCA 275 TanzLII where it was held that: "Coming back to the appeal at hand, it is clear that failure to conduct a trial within a trial makes the confessional statement inadmissible and should not have been admitted in evidence. We accordingly expunge it from the record it follows that admissibility of the caution statement was invalid. Thus, it is expunged from the records." Since, as stated earlier, the inquiry was not conducted to ascertain the voluntariness of the repudiated caution statement before it was admitted as Exhibit PEI, I concur with the learned State Attorney that its admission materially contravened the law, and it should, therefore, be expunged from the records as it hereby done. Page 9 of 12 The last point is on identification of the appellant. It is now a trite law that where the evidence implicating the accused person is mainly of visual identification, no conviction should be entered unless the possibility of mistaken identity has been eliminated. Cementing this rule which was propounded in Waziri Amani vs Republic (supra), the Court of Appeal in Alfredy Kwezi @ Alfonce vs Republic Criminal Appeal No. 216 of 2021) [2022] TZCA 355 TanzLII, stated that: "...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." Where the offence was committed at night, the law requires that the source and the intensity of the light by which the accused was identified be disclosed as stated by the Court of Appeal in Hassan Said v. Republic, Criminal Appeal No. 264 of 2015 [2016] TZCA 322 TanzLII and in Byamtonzi John @ Buyoya vs Republic (Criminal Appeal No. 289 of 2019) [2021] TZCA 385 TanzLII. In Hassan Said v. Republic (supra), the Court underscored that; Page 10 of 12 "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." In the present case, the offence was committed at night. PW1, who was the only eyewitness, stated to have identified the appellant through torchlight, but she said nothing about the intensity of the torchlight, the distance at which he identified the appellant and the time during which she observed the appellant. Thus, as submitted by both parties the appellant was not identified properly. Having expunged the victim's statement and the caution statement from the record and having found that the appellant's identification was not free from mistakes, I have asked myself whether the remaining evidence can sustain the conviction and sentence. The evidence on record leans towards a negative answer considering that, save for PW1, none of the witnesses was an eye witness. Thus, they have no first-hand information of what transpired at the scene. Since the statement of the victim who would have been the best witness has been expunged from the and PWl's identification of the appellant has been found to have not been watertight, there has remained no evidence to sustain the conviction and sentence. In the foregoing, I agree with the learned State Attorney that these points sufficiently dispose of the appeal as they demonstrate that the prosecution did not prove its case Page 11 of 12 beyond reasonable doubt. Under the premises, I find no reasons to deal with the remaining grounds of appeal. In consequence, the appeal is allowed. The conviction entered against the appellant is quashed and the sentences passed against him are all set aside. It is, further, ordered that he be discharged unless he is otherwise detained for another lawful cause. DATED and DELIVERED at DODOMA this 28th day of March 2025. J. L. MASABO JUDGE Page 12 of 12