JAPHET FOR TANZLII

IN THE HIGH COURT OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 24982 OF 2024 (Original Criminal Case No. 7606 of 2024 from Geita District Court at Geita before Maweda PRM) DAUD JAPHET@DAUD--------------------------------------------------APPELANT VERSUS THE REPUBLIC -------------------------------------------------------RESPONDENT JUDGMENT Date of last Order: 23/10/2024 Date of Judgment: 28/10/2024 K. D. MHINA, J. On 2 August 2023, the appellant appeared before the District Court of Geita at Geita on a charge of Rape contrary to contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R: E 2022. It was the prosecution’s case that on 7 July 2004, at Ikina village, within the District and Region of Geita, the appellant did have carnal knowledge of the victim, a girl child aged 13 years, who, for purposes of concealing her identity will be referred to, in this judgment, as the victim. 1 When the appellant’s plea was taken, he pleaded not guilty; thus, the prosecution paraded five witnesses in a bid to prove the charge. The background to this case is that the victim (PW1), a 13-year-old girl, lived in Bukoli Village. On a fateful day, while returning home with her sibling from the ceremony, they met the appellant, who was alone. The appellant told her sibling to go home, and that sibling left; the appellant took her to the cassava farm, undressed and raped her. PW1 further testified that after the appellant had satisfied his lust, he left. She also left, and on her way home, she met their neighbour, whom she narrated the ordeal. When cross-examined, she responded that the incident occurred around 19:00 hours. Further, she stated that when she arrived home, she said that she was raped by an unknown boy. Also, she stated that the appellant was found at the village centre, boosting himself that she had sex with a young girl. On his side, PW2 (the victim’s father) evidence was that on 7 July 2023, while he was at the village centre, he was approached by two ten-cell leaders who informed him that his daughter had been raped by the appellant. 2 They searched the appellant, successfully apprehended him at the “Pombe shop”, and took him to the “Mtendaji” office. At the office, when the appellant was questioned, he confessed to raping the victim. Further, the victim identified the appellant at the office of Mtendaji when a line of five persons was paraded together with the appellant. PW3 was a medical practitioner who clinically examined the victim and filled the PF3 (exhibit P1). Upon his examination, he found bruises and blood stains on the victim’s private part (vagina) and concluded that she was penetrated by a blunt object. On their side, PW4 (police officer) and PW5 (Ward executive officer) recorded the cautioned statement (exhibit P2) and extra-judicial statement (exhibit P3), respectively. Both testified that the appellant confessed to raping the victim. In his defence, the appellant pleaded a general denial that he did not commit the offence. He also raised the following issues: that he was not arrested at the crime scene, that the sibling who was with the victim was not summoned to testify, and that he had grudges with PW2 (the victim’s father). 3 In the end, the trial court found the prosecution sufficiently proved the charge against the appellant, convicted him and subsequently sentenced him to thirty (30) years in prison and twelve (12) strokes of cane. The appellant was dissatisfied with both the conviction and sentence and decided to appeal. In the memorandum of appeal, the appellant raised eleven (11) grounds, which can be summarised as follows; One, he never committed the offence; two, the offence was not proved beyond reasonable doubt; three, he was convicted and sentenced while he was not caught in fragrante delicto; four, the prosecution evidence was based on hearsay evidence of the victim and her parent; five, he was never supplied with the witnesses’ statement to enable him to prepare the defence; six, the prosecution evidence was weak for instance the evidence the medical practitioner who used his eyes in examining the victim; seven, the cautioned statement was recorded in the absence of the justice of peace, friend, lawyer or a relative and he was forced to sign without knowing what was written; eight, neither a leader nor a neighbour who was summoned to testify that he was caught committing the offence; nine, the matter was not reported to police station; ten, the victim did not identify and describe 4 the rapist prior to his apprehension; the eleventh ground was the repetition of the sixth ground. At the hearing of the appeal, the appellant appeared in person and was unrepresented. The Respondent/ Republic was represented by Ms. Deodatha Dotto, learned state attorney. Ms. Dotto did not support the appellant's conviction. She argued the tenth ground of appeal, which she said disposes of the appeal. According to her, the appellant was not properly identified. The victim did not testify on the favourable conditions for identification, such as the distance between her and the appellant, the time taken in committing the offence, the source of light and its intensity. Therefore, she argued that the requirements laid down in Waziri Amani v. Republic 1980 TLR 250 were not met. Ms. Dotto further argued that the appellant was apprehended by the ten-cell leader and the victim’s father; however, there was no evidence that the victim described the appellant before being apprehended. Regarding the appellant’s identification in the identification parade, Ms. Dotto submitted that the parade was not conducted in accordance with the law. He explained that in this appeal, the parade was held in the office of 5 the executive officer (afisa mtendaji), while the law under section 60 (1) of the Criminal Procedure Act provides that a parade must be conducted by a police officer in charge of the police station or the police investigating the offence linked to the suspect. Further, since the requirements laid down in Waziri Amani (Supra) were not met, therefore, the parade was meaningless, as elaborated in Idd Ally vs. Republic, Criminal Appeal No 282 of 2020 (Tanzlii), page 7. On the remaining evidence of the cautioned statement and extra- judicial statement (exhibit P2 ns P3 respectively) connected the appellant with the offence, Ms. Dotto stated that the statements needed to be corroborated, but in the instant appeal, there was no other evidence to corroborate exhibits P1 and P2. In conclusion, she submitted that the cautioned statement and extra- judicial statement were not read after being admitted, and that was contrary to what was held in Steven Salvatory vs Republic, Criminal Appeal No. 275 of 2018 (Tanzlii), on page 7, that failure to read the exhibit after being admitted resulted in its expunction. 6 The appellant, who had nothing to add to his grounds of appeal and also after the submissions made by the learned State Attorney, fully supported the arguments raised by Ms. Dotto. Having gone through the submissions by the learned state attorney, the most important issues for consideration in this appeal are as follows: - 1. Whether or not PW1 was raped. 2. Whether or not it was the appellant who committed the rape. As this is a first appeal, the principle is that this Court is entitled to re- evaluate the trial court’s evidence and arrive at its own decision. See Makubi Dogani v. Ngodongo Maganga, Civil Appeal No. 78 of 2019 (Tanzlii), where it held that:- "... the first appellate Court it is entitled to re-evaluate the entire evidence on record reading it together and subjecting it to a critical scrutiny and if, warranted, arrive at its own decision." In relation to whether or not the appellant was raped, it is obvious from the evidence on record that the appellant was raped. Taking into account the evidence of PW1 (the victim) and PW3, the medical practitioner who also tendered the PF3 report (Exhibit P1). 7 In his evidence and medical report (Exhibit P1), the medical practitioner established that the victim was raped. In my opinion, I don’t have a reason for not believing his evidence and findings that when he clinically examined the victim, he found she was carnally known. In relation to the second issue as to whether it was the appellant who committed the act, I need to clearly evaluate the evidence on record and establish whether it was the appellant who committed the rape. This also took me to the tenth ground of appeal, which Ms. Dotto, State Attorney, conceded. The question here is whether the appellant was clearly identified by the victim. First of all, it is settled law that the best evidence to establish rape is the evidence of the victim herself. See Seleman Mkumba v. Republic, Criminal Appeal No. 94 of 1999 (Tanzlii). However, the Court of Appeal in Mohamed Said vs. Republic, Criminal Appeal No. 145 of 2017 (Tanzlii), cautioned that such kind of evidence must be subjected to scrutiny for the court to satisfy itself on the coherence of the evidence. On how the credibility of a witness can be assessed, the Court of Appeal in the cited case of Nimo Samu vs. Republic, Criminal Appeal No. 8 31 of 2019 (Tanzlii), while citing its earlier decision of Shabani Daudi vs. Republic, Criminal Appeal No. 28 of 2001(unreported), held that; “The credibility of a witness can also be determined in other two ways, that is one, by assessing the coherence of the testimony of the witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses”. From above, it is essential to look at the piece of evidence linking the appellant with the offence of rape, especially on his identification. The evidence of PW1 indicated that they met the appellant while she was with her sibling at 19:00 hours on the way to their home. The appellant told her sibling to go home, and when that sibling left, the appellant took her to the cassava farm, undressed and raped her. After the ordeal, when she was on her way home, she met her neighbour and narrated what happened. At home, she said she was raped by an unknown boy. The prosecution evidence indicated that the appellant was arrested following the information from the two ten-cell leaders to the victim’s father (PW2). According to PW2’s evidence, he was approached by two ten-cell leaders who informed him that his daughter had been raped by the appellant. They apprehended the appellant and took him to the “Mtendaji” 9 office. At the office, the appellant confessed to raping the victim. Further, the victim identified the appellant at the office of “Mtendaji” when a line of five persons was paraded together with the appellant. On the identification of the appellant, the entry point is the cited case of Waziri Amani (Supra), where the Court of Appeal laid down certain factors to be taken into account by a court to satisfy itself on whether such evidence on identification is watertight. They include the following:- one, the time the witness had the accused under observation; two, the distance at which he observed him; three, the conditions in which such observation occurred if it was day or night time; four, whether there was good or poor lighting at the scene and five, whether the witness knew or had seen the accused before or not. In the instant appeal, as previously alluded, when cross-examined, the victim (PW1) stated that the incident occurred at 19:00 hours. However, in her evidence, she did not testify on whether there was good or poor light and the time taken in committing the offence. Regarding the fact that whether she knew the appellant before the incident, the evidence indicated that she did not know the appellant before 10 the incident because when cross-examined, the victim stated that at home, she reported that she was raped by an unknown boy. In Marwa Wangiti Mwita and Another [2002] TLR 39, the Court of Appeal settled a principle to the effect that; “…although relevant and admissible, eyewitness visual identification evidence is of the weakest character and most unreliable, which should be acted upon cautiously after the court has first satisfied itself that the conditions were favourable for a proper identification such evidence is watertight and all possibilities of mistaken identity have been eliminated”. From the above discussions, as rightly submitted by Ms. Dotto, not only did the victim (PW1) fail to give evidence on the identification of the appellant, but she also failed to describe the appellant before his apprehension. Now, I turn to the issue of the appellant's identification in the identification parade. PW2 claimed that the victim was able to identify the appellant in the parade conducted at the office of “mtendaji”. PW2 explained that in the parade, the line was with five persons and the appellant. On that identification parade, I have the following observations; 11 One, as rightly submitted by Ms. Dotto, there was no evidence that the victim described the appellant before being apprehended. As I indicated earlier, the trial court’s record indicated that PW1 never gave the descriptions of the persons who raped her. On this, it is trite law that for the evidence of identifying witness(es) in the identification parade to be afforded credence, it must be preceded by that witness description of the suspect. The Court of Appeal in Abdul Farijalah and Another vs. Republic, Criminal Appeal No. 99 of 2008 and John Paulo @ Shida and Another vs. Republic, Criminal Appeal No. 335 of 2009 (both unreported) clearly stated that the purpose of an identification parade is inter alia, to enable a witness to identify their assailant (s) whom they have never seen or known before the incident. The failure to describe a suspect before the identification parade rendered it meaningless and unworthy of credit. See Idd Ally (Supra). Two, again, as rightly submitted by Ms. Dotto, the purported identification parade was conducted contrary to the law. According to PW2, the parade was held at the office of “mtendaji”. He did not mention who supervised that parade, whether it was him or “mtendaji”. 12 In law, identification Parades are regulated by Section 60 of the Criminal Procedure Act and Cap 20 R: E 2022, which provide the statutory framework, while the Police General Orders (the PGO) No. 232, issued by the Inspector General of Police under section 7 (2) of the Police Auxiliary Service Act, Cap. 322, play a pivotal role in governing these parades. Section 60(1) of the CPA provides that; 60.-(1) Any police officer in charge of a police station or any police officer investigating an offence may hold an identification parade for the purpose of ascertaining whether a witness can identify a person suspected of the commission of an offence. From the above discussion and cited provision of law, it is quite clear that the evidence does not indicate if the identification parade was held by a police officer in charge of a police station or any police officer investigating an offence. It is even unknown how that parade was conducted as the identification parade registers (PF186) were not tendered at the trial. Further, the victim (PW1), in her evidence, never testified if she happened to attend the parade and was able to identify the appellant. Therefore, the procedures for the purported identification parade were contravened ab initio. What happened was not an identification parade 13 known under the law. In Andrea Augustino @ Msigara vs. Republic, Criminal Appeal No. 365 of 2018 (Tanzlii), the Court of Appeal held that the effect of contravening the procedures for the identification parade renders it of little probative value or valueless. For the reasons above, the prosecution evidence was weak on the identification of the appellant. The remaining evidence is the cautioned statement (exhibit P2) and extra-judicial statement (exhibit P3). In her submission, Ms. Dotto submitted that the exhibits were not read after being admitted. On that failure, she stated that the failure resulted in the expunction of the exhibits from the record. Having gone through the trial court records, it is clear that after PW4 tendered the cautioned statement (exhibit P2) and admitted by the Court, it was never read to the appellant. Likewise, when PW5 tendered the extra- judicial statement (exhibit P3) and admitted by the Court, it was never read to the appellant. The Court of Appeal in Robinson Mwanjisi and three others v. R [2003] T.L.R 218, held that; 14 "Whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted before it can be read out." That means a position of law is that after the cautioned statement or extra-judicial statement is tendered and cleared for admission, it must be read out in court so that its contents can be heard by the accused person. On the effect of the failure to read out the cautioned statement or extra-judicial statement after being admitted, the Court of Appeal in Erneo Kidilo and Another vs. Republic, Criminal Appeal No. 206 of 2017 (Tanzlii), held that the omission rendered exhibit incompetent deserving to be expunged from the record. Flowing from above, having found that the victim did not properly identify the appellant and that the cautioned and extra-judicial statements were incompetent, there was no other evidence on record to implicate the appellant against the offence of rape. Eventually, I find merit in the appeal, and I hereby allow it, quash the conviction and set aside the sentence meted out against the appellant. I order the immediate release of the appellant from prison unless he is continually lawfully held. 15 It is so ordered. K. D. MHINA JUDGE 28/10/2024 Court: Right to appeal explained. K. D. MHINA JUDGE 28/10/2024 16