Stephen Triphone Boba vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MTWARA (CORAM: KEREFU. 3.A.. RUMANYIKA, 3.A. And MGEYEKWA, J.A.) CRIMINAL APPEAL NO. 389 OF 2022 STEPHEN TRIPHONE BOBA........................................................ APPELLANT VERSUS THE REPUBLIC................................. ................................. - RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mtwara f Muruke. J.l dated the 18thday of March, 2022 in Criminal Appeal No. 57 of 2021 JUDGMENT OF THE COURT 3rd & 12th June, 2024 MGEYEKWA. J.A:. In the District Court of Kiiwa at Kilwa Masoko, Stephen Triphone Boba, the appellant was arraigned, tried and convicted of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code. The information laid by the prosecution alleged that, on 6th October, 2020 at Kilanjelanje Village within Kilwa District in Lindi Region, the appellant had carnal knowledge of a girl child aged fifteen (15) years. To conceal the victim's identity, we shall henceforth refer to the girl as 'PW l1as she so testified before the trial court. i The appellant pleaded not guilty to the charge. However, after a full trial, he was convicted and sentenced to serve thirty (30) years imprisonment. The material facts to this appeal as can be gleaned from the record of appeal indicates that, PW1, a pupil at Kilanjelanje Primary School was living with her mother, step father and her nephew one Ashirafu. Her parents were farmers who spent most of their time at the farm. On the fateful date, early in the morning, PW1 while accompanied by Ashirafu, went to school and after school hours, they returned together back home and noted their parents were not yet at home. PW1 testified that at night while they were still alone, an unknown person entered into their bedroom. Suddenly, PW1 felt something was touching her on her body; they woke up quickly and went outside the house. While there, they saw a person standing at the door. Upon being asked by PW1 who he was, he kept quiet and started to throw stones towards them and they started to run. Having reached at the junction the duo parted ways. The said culprit decided to pursue PW1. According to PW1, in the course of running, she fell down, then the culprit grabbed her and ordered her to lie down, she refused, but the culprit threatened her with a machete. It was the testimony of PW1 that she raised an alarm but in vain. The culprit undressed her and ordered her to bend forward then, he inserted his male organ into her anus. It was the testimony of PW1 that, the experience was painful. At first, PW1 did not recognize him because he covered his face with a cap. PW1 went on to state that, having finished to sodomize her, the culprit also attempted to rape her, but she refused and started to run away. The culprit grabbed her, and this time, he removed his cap; with the aid of bright moonlight illuminated the scene of the crime, PW1 managed to recognize the culprit as Stephen Boba, the appellant. PW1 further stated that, she knew him because previously he visited and stayed at her sister's residence. Before the appellant was about to proceed with the alleged chain of the obscene sexual acts, PWl's step father appeared at the scene of the crime. Upon seeing him, the appellant fled away. From the scene of the crime, PW1 and her father headed back home. She did not disclose to the father the ordeal, nor did she tell her mother when she came back home. However, PW1 reported the matter to her sister 3 one Maria Kasiani (PW4) on the same night, naming the appellant as his ravisher. On the following day, she was taken to the police station, where she was issued with a Police Form No. 3 (PF3), and then she was taken to the Health Centre for treatment and examination. PW4 supported the evidence of PW1 by stating that, on the fateful date, PW1 informed her that the appellant sodomized her. PW4 promptly informed her mother. On the following day, PW4, her mother and Robert reported the matter to the Village Executive Officer (VEO). Subsequently, they reported the matter to the police, who gave them a PF3, and then they took PW1 to the Kilanjelanje Health Center for treatment. PW4 narrated how she knew the appellant and confirmed that he once visited her with his young brother Robert in her residence. They were friends and stayed at PW4fs residence for a week. PW4 said that PW1 and the appellant are familiar with each other; they also met at her residence. Abdallah Arrey Mohamed (PW2), the Village Executive Officer (VEO), testified that PW1 is a student at the Primary School of Kilanjelanje. He testified that on 6th October, 2020 in the morning, while in his office, the victim's mother entered into his office and informed him that PW1 was sodomized by Stephen, the appellant. PW2 ordered PWl's brother to call her. PW2 interrogated PW1 who narrated what had befallen her and on how the appellant sodomized her. Subsequently, PW2 reported the incident to the police which led to the appellant's arrest on 8th October, 2020. Upon obtaining the PF3, PW4 accompanied by her mother and brother took PW1 to Kilanjelanje Health Centre where she was examined and treated by Eric John (PW3), who examined PW1 and observed that she was sodomized as there were bruises in the inner and outer layer of her anus, wounds on both parts and oozing blood. PW3 recorded his findings in PF3 which was admitted in evidence as exhibit PI. In his defence, the appellant, while admitting that he knew PW1 who used to visit her sister in their Village, he denied to have committed the offence. He raised the defence of alibi, claiming that on the fateful day, around 09:00 hours some people came to his parents' house and claimed that he had sodomized PW1. He denied the allegations. Surprisingly, on 9th October, 2020 at midnight, he was arrested and taken to Kilanjelanje Village where he was detained in the VEO's office. On the following day, around 13:00 hours, he was taken to the police station and finally, he was brought before the trial court. Having heard the evidence from both parties, the trial court relied on the testimony of PW1 whose evidence the trial court found to be credible and reliable. The learned trial Resident Magistrate stated as follows in the judgment at page 54 of the record of appeal: "Having satisfied with the prosecution evidence as to the presence o f the accused at the scene o f the crime is watertight PW1 (AMN) is a reliable witness, her evidence on identification, recognition and naming the accused at the earliest stage are corroborated in the testimony o f PW2 and PW4..." The trial court was satisfied that the evidence of PW1 had proved the case against the appellant beyond reasonable doubt. In his first appeal at the High Court, the appellants complaint were on the credibility of prosecution witnesses and failure by the prosecution to prove the case against him beyond reasonable doubt. The first appellate court agreed with the learned Resident Magistrate that, the prosecution proved the case to the hilt, hence dismissed the appellant's appeal. Still protesting his innocence, the appellant has preferred the current appeal, raising six (6) grounds of appeal which may be paraphrased as follows: One, that the prosecution failed to prove all ingredients of the offence of unnatural offence beyond a reasonable doubt; two that, visual identification of the appellant at the scene of the crime was not watertight; three that, the appellant was wrongly convicted because PW3 failed to mention the type of blunt object that caused bruises to PWl's private parts; four that, the appellant was convicted based on hearsay evidence of prosecution witnesses; five that, the trial court convicted and sentenced the appellant without scrutinizing the evidence and credibility of PW1 and PW3; and six that, the trial court did not comply with the requirement of section 235 (1) of the CPA. At the hearing of the appeal, the appellant appeared in person. Besides adopting the grounds of appeal, he decided to hear first, the respondent's reply to the grounds of appeal with the option of making a rejoinder if the need to do so would arise. On the other hand, Mr. Credo Rugaju, learned Senior State Attorney represented the respondent Republic, determinedly opposed the appeal. We begin with the sixth ground, wherein the appellant is faulting the trial court for failure to comply with the legal requirement stipulated under section 235 of the CPA. Mr. Rugaju refuted the contention arguing that, the trial court complied with the requirement stated under section 235 of the CPA. He clarified that after having heard the prosecution and defence case, the trial magistrate proceeded to enter a conviction and pass a sentence on the appellant. He implored us to find that this ground is devoid of merit. Without much ado, this ground of appeal is without any merit. As rightly argued by the learned Senior State Attorney pages 57 and 58 of the record of appeal speak it all that, after finding that the appellant was guilty, the trial court proceeded to convict him forthwith of the offence contrary to section 154 (1) (a) and 2 of the Penal Code. Therefore, we find this ground of appeal devoid of merit. As regards the third ground, Mr. Rugaju argued that, the same is misconceived. He clarified that in rape cases, the medical doctor is required to establish as to whether or not there was penetration to the victim. He exemplified that in the present case, PW3 having examined PW1, he found that the victim had bruises which was caused by a blunt object which was s an indication that she was penetrated and or sodomized. To reinforce his submission, he cited the case of Omary Kijuu v. Republic, Criminal Appeal No.39 of 2005 [2007] TZCA 9 (22 June 2007 TanzLII). He then urged us to dismiss this ground of appeal. We have no inhibition in holding that this ground is misconceived. We are saying so deliberately because the law does not require a medical doctor who examined the victim to explain the type of the blunt object that caused bruises to the victim. As rightly submitted by Mr. Rugaju, the medical doctor's findings sufficed only to establish that there was penetration. Therefore, PW3 was not required to elaborate and or explain the type of the said blunt object as claimed by the appellant. The third ground of appeal falls accordingly. On the first, second, fourth and fifth grounds which were argued jointly, it was the appellant's contention that the trial court based its conviction on the prosecution witnesses' evidence without considering that the appellant was not identified, the prosecution evidence was pure hearsay evidence, PW1 and PW3 were not credible witnesses, thus the prosecution failed to prove the case beyond a reasonable doubt. Reacting, Mr. Rugaju challenged the appellant's grounds of appeal by referring us to pages 11 to 15 of the record of appeal, and contended that, PW1 proved her credibility by narrating the sequence of the incident very well. He exemplified that PW1 narrated that on the fateful date, the appellant entered PWl's house at night while PW1 and her nephew were sleeping and started to touch her; they ran away and departed ways. The appellant chased PW1 who fell down, then the appellant sodomized her. Upon being probed by the Court as to whether the appellant was identified by PW1, Mr. Rugaju asserted that the victim did not identify the appellant until when he removed his cap. That, with the aid of a bright moonlight, PW1 managed to identify the appellant by naming him and said the two of them knew each other prior to the incident. According to him, that proved that PW1 recognized the appellant. He spiritedly argued that, even the appellant himself at page 28 of the same record, admitted to that fact that he knew PW1 who was living with her sister in the same Village. It was his further submission that PWl's evidence was supported by PW4 who confirmed that the appellant was well-known to PW1 before the commission of the crime. The learned Senior State Attorney continued to argue that to name the culprit at the earliest moment adds credibility and thus it builds a prosecution case. To buttress his submission, he cited the case of Jumapili Msyete v. Republic, Criminal Appeal No. 110 of 2014 [2015] TZCA 234 (12 August 2015 TanzLII). He was therefore of the firm submission that the prosecution proved its case against the appellant beyond reasonable doubt. He urged us to dismiss these grounds of appeal. We are aware that this is a second appeal, where, the Court will not readily interfere with concurrent findings of the two courts below on matters of fact unless certain irregularities or violations were committed by the first appellate court in its decision. The principle was reiterated in the case of Jafari Mohamed v. Republic, Criminal Appeal No. 112 of 2006 (unreported), where the Court stated that: "An appellate court, like this one, will only interfere with such concurrent findings o f fact only if it is satisfied that "they are on the face o f it unreasonable or perverse" leading to a miscarriage o fjustice; or there had been a misapprehension o f the evidence or a violation o f some principle o f law: see\ for instance, Peters v Sunday Post Ltd. [1958] EA. 424: Daniel Nguru and Four Others v. R.f li Criminal Appeal No. 178 of 2004, (unreported); Richard Mgaya (supra)..." As pointed out by Mr. Rugaju, the conviction of the appellant is predicated upon two pieces of evidences, namely, identification by recognition and the credibility of the victim. Our starting issue for our determination will be whether or not the victim identified or recognized the appellant at the scene of the crime. We will re-evaluate the evidence to find out if the evidence on the record met the thresholds set in the celebrated case of Waziri Amani Republic [1980] T.L.R. 250 on how the appellant was identified by PW1. Trite legal stance is that visual identification evidence is of the weakest nature and should not be relied on unless the court is satisfied that all possibilities of a proper and unmistaken identification are eliminated, that is to say the evidence must be watertight. However, it has been held that identification by recognition is more reliable. This was held by the Court in the case of Athuman Hamis @ Athumani v. Republic, Criminal Appeal No. 288 of 2009 (unreported) it was held that: "Under the circumstances where the complainant recognized the appellant because o f knowing him 12 before, and given the conditions which made the complainant to recognize the appellant, it is safe to say there was no mistaken identity. In the case ofKennga Chea Thoye v. Republic, Criminal Appeal No. 375 of 2016 (unreported), the Court of Appeal of Kenya held that: "Recognition is more satisfactory, more assuring and more reliable than identification o f a stranger" Reverting to the case at hand, the type of identification relied upon is that of recognition. In recognition cases, the foundational evidence would be how the victim knew the suspect before the fateful date. It is evident that, from the beginning, PW1 made it clear that, at first, she could not recognize the appellant because he was wearing a cap. At the point when the appellant removed his cap and grabbed PW1 who was facing him, she recognized the appellant by his name who was staying in the same Village with PW4 and he was her brother's friend. The recognition evidence by PW1 was corroborated by the evidence of PW4 and the appellant himself. PW4 told the trial court that the appellant was familiar to both of them and a friend of her young brother one Robert. In his defence, the appellant admitted that, he and PW4 are residents of Kitana Village. He did not dispute the fact that he and PW1 knew each other before the incident. However, he flatly distanced himself from the offence. We take the liberty to partly quote the appellant defence as appearing at page 28 of the record of appeal: "I know Robert and PW1 are siblings long time ago. I was a friend o f Robert, we played together, so we know each other for long time. It is true PW1 knows me and it is true when she said so because I am a friend o f his brother Robert. Me and Robert used to visit each other. I never lived in the residence o f Suzane's sister Maria. I only went there to visit Robert." Going by the above excerpt and as intimated earlier, there is no doubt that, the appellant knew the victim before the commission of the offence. The only difference was on what transpired on the incident date. The victim had ample opportunity to observe and recognize the appellant; the incident took place outside when, there was bright moonlight that gave sufficient light to enable PW1 to recognize the appellant and the incident was not for a flick of a second. We have also considered the fact that the identification of the appellant through recognition is more assuring and more reliable. Therefore, in the present case, mistaken identification of the appellant could not arise. In our recent decision in Tabu Sita v. Republic, Criminal Appeal 14 297 of 2019) [2022] TZCA 702 (10 November 2022 TanzLII), when we dealt with a similar complaint, we held that: "... we are settled that, this is a dear case o f recognition rather than identification as both, PW4 and the appellant knew each other very well prior to the incident" The significance of the need to eliminate the dangers of mistaken identity was stressed in Waziri Amani, (supra), the Court held that: "The firstpoint we wish to make is an elementary one and this is that evidence o f visual identification, as Courts in East Africa and England have warned in a number of cases, is o f the weakest kind and most unreliable. It follows therefore, that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. "[Emphasis added] Applying the above authority in the instant case, it is clear that the appellant was positively recognized by PW1 and it eliminated any possible honest mistaken identity. For the aforesaid findings, we find and hold that in the circumstances of this case, we cannot fault the concurrent finding by the lower courts that 15 PW1 recognized the appellant at the scene of the crime. Therefore, with profound respect, we cannot agree with the appellant's argument that he was not recognized. Moreover, there is no doubt that the prosecution witnesses were credible. In Salum Ally v. Republic, Criminal Appeal No. 106 of 2013 (unreported), the Court stated that: "...on whether or not any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue whether the witness appears to be teiting the truth as he believes it to b e In essence, this entails the ability to assess whether the witness's testimony is plausible or is in harmony with the preponderance o fprobabilities which a practical and informed person would readily recognize as reasonable in the circumstancesparticularly in a particular case. The test for any credible evidence is supposed to pass, were best summarized in the case o f Abdallha Teje @ Malima Mabuia v. Republic, CriminalAppeal No. 195 o f2005 (unreported)../'[Emphasis added] The evidence linking the appellant with the commission of unnatural offence came from PW1, PW3 and PW4. On pages 13, 14, and 15 of the 16 record of appeal, it is apparent that PW1 described the whole process beginning from when the appellant invaded them in their house at night. The appellant chased PW1, grabbed her and ordered her to undress her underpant, then he sodomized her. PW1 narrated what transpired after the uncouth act, the appellant also tried to rape her. More so, as aptly and rightly submitted by Mr. Rugaju, PW1 was able to recognize the appellant by his name, and when she reached home the same night, she informed her PW4 on what had befallen her and named the appellant who sodomized her. PW1 testimony was also corroborated by PW3's evidence. As alluded to above, PW3 conducted an examination and discovered that PW1 had bruises in the outer and inner layers of her anus which was an indication that PW1 was sodomized. For the aforementioned reasons, it is our view that the lower courts made a meticulous assessment of the credibility of the witnesses. It is not at all apparent to us on any realistic view of the evidence before them, that such assessments were so flawed as to prompt us to disturb it. We reject the arguments by appellant on this point. We are, therefore, satisfied that under the circumstances, the prosecution proved the case against the appellant to the hilt against the appellant. The first, second, fourth and fifth grounds are bound to fail and we dismiss them accordingly. In the end, we find the appeal devoid of merit and hereby dismiss it in its entirety. DATED at MTWARA this 11th day of June, 2024. R. J. KEREFU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 12th day of June, 2024 in the presence of the Appellant in person unrepresented and Mr. Justus Revocatus Zegge, State Attorney forjhe Respondent/Republic is hereby certified as a true copy of the A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 18