CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA ( CORAM: MWARUA. J.A.. MASHAKA. J.A. And FELESHI- J J U CRIMINAL APPEAL NO. 460 OF 2022 PETER SIMON................................................................................APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Sumbawanga) (Nkwabi, J.^ dated the 9th day of August, 2022 in DC Criminal Appeal No. 4 of 2021 JUDGMENT OF THE COURT 24th & 3rdApril, 2025 MWARIJA. 3.A.: The appellant, Peter Simon was charged in the District Court of Mpanda at Mpanda with the offence of attempted rape contrary to section 132 (1) and (2) (a) of the Penal Code, Chapter 16 of the Revised Laws. It was the prosecution's case that, on 8/8/2020 at Katambike Village within Mpanda District in Katavi Region, the appellant attempted to rape a girl, one "FN" (name withheld to disguise her identity), aged 8 years (hereinafter to be referred to as the victim). When the charge was read over to him, the appellant entered a plea of not guilty thus tasking the prosecution with the duty of proving its case. For that reason, the prosecution called five witnesses to testify. On his part, the appellant relied on his own evidence in defence without calling any other witness. At the conclusion of the trial, the appellant was found guilty and upon conviction, was sentenced to custodial term of 30 years imprisonment. His appeal to the High Court was unsuccessful, hence this second appeal. The background facts of the case giving rise to this appeal may be briefly stated as follows: On 8/8/2020 while on the way home from a well, the victim met a person who forcefully got hold of her hand and pulled her out of the way in the shrubs. Having taken her there, he undressed her underpants and gown, fell her down and after having pulled down his trousers, laid on top of her with the intention of raping her. While he was about to insert his manhood into her female organ, one Hassan Dotto @ Bengwe (PW4), who was passing on the way, heard voice of a child crying for help. He parked his bicycle and went to the place where he heard the voice. He saw a half-naked man (the culprit) on top of a naked child struggling to cover her mouth. When the culprit noticed the presence of PW4, he stood up and took to his heels. 2 PW4 took the child to her home where he found her father, Ngasa Kabalo (PW2) and narrated to him the situation in which he found her. While taking the child to her home, on the way, PW4 met one Juma Masali (PW3) who escorted him to the child's home. From the description of the culprit given by the victim and PW4, a hunt was carried out by PW2 and PW3. They followed the shoe prints of the footwear (gumboots) said to have been wore by the culprit. They were unsuccessful but while tracing him, they gave his description to some of the persons at some of the houses where they had made inquiries. PW2 got information that the appellant had been arrested on suspicion that he was the offender. He was later charged as indicated above. In his testimony, the victim who testified as PW1, narrated the incident as per the above stated facts. She however, told the court that, it was her first time to see the culprit on the date of the incident. She described him by his attire; that, he had put on green trousers, a white shirt which had red strips and black shoes (gumboots). PW l's evidence of identification was supported by PW4. He also gave the description of the culprit by his attire as stated by PW1. It was his further evidence that, when he asked PW1 whether he knew the culprit, she answered in the negative. On his part, PW2 testified that, after the victim had arrived home in the company of PW4 and PW3 and after the said witnesses had given him the description of the culprit, they embarked on the exercise of tracing him. It was his further evidence that, at one of the houses where they inquired about a person fitting the given description, one woman told them that such a person passed there and offered him food. According to PW2, the woman, knew the person as the in-law of one Mwanashishi. Their efforts to find the culprit was however, unsuccessful. The appellant came to be arrested at 00:00 by members of the people's militia (sungungungu). Evidence for the prosecution was also given by Nicholaus Nehemia (PW5), a Medical Officer, Ugalla Dispensary. He testified that, he examined the victim and found that she had not been penetrated as her genital parts were normal. He tendered the victim's PF3 on which he had recorded his findings. The same was admitted in evidence as exhibit P2. The appellant's defence was that of general denial. He testified that, he was arrested on 8/8/2020 at the house of his mother in-law. He stated that, he was arrested by three persons who told him that he would know the cause of his arrest at police station. While there, he was informed that he raped a girl. He said further that, he demanded to be shown the girl that was allegedly raped by him but that was not done. He maintained that, he did not know the victim. He challenged the testimonies of the prosecution witnesses particularly PW1, PW2, PW3 and PW4 on account that, their evidence was contradictory as regard the time at which the offence was committed. He also alleged that, he was in cold blood with some of the prosecution witnesses including PW2. The trial court convicted the appellant basing on the evidence of PW1 and PW4. It found that, the evidence of the said witnesses on the description of the culprit's attire led to his arrest. On the ingredients of the offence of attempted rape, the trial court relied on the case of Seleman Makumba v. Republic [2006] T.L.R. 376 and held that, the evidence of the victim, which was supported by PW4, was credible and therefore, grounded the appellant's conviction. As for the appellant's defence, the same was found to be unworthy of raising any reasonable doubt against the prosecution evidence. On appeal to the High Court, which was predicated on three grounds, the same was dismissed for want of merit. He had complained first, that the case was not proved beyond reasonable doubt, secondly, that he was wrongly convicted because PW1 was not raped and thirdly, that his conviction was based on contradictory evidence of the prosecution witnesses. Having considered those grounds of appeal, the High Court (Nkwabi, 1) was satisfied that, the same were meritless. He upheld the finding of the trial court that, the evidence of PW1 and PW4 proved beyond reasonable doubt that, the appellant committed the offence charged. He was of the view that, the contradictions on the time of commission of the offence were minor and inconsequential. Relying on the case of Amir Mohamed v. Republic [1994] T.L.R. 138, the learned first appellate Judge considered also the evidence that, the appellant disappeared after the incident and found that, such conduct supported the trial court's finding. The appellant's appeal before the Court is predicated on the following seven grounds: 1. That, the Hon. [first appellate] Judge [erred] in law and fact to dismiss the appeal while the charge was not proved by the prosecution side beyond reasonable doubt at the trial court. 2. That, the Hon. [first appellate] Judge erred in law ... and fact to dismiss [the] appeal [without] considering that the said PW3 failed to identify the appellant at the scene of the crime. 3. That, the learned [first appellate] Judge erred in law ... and fact to dismiss the appellants appeal [without observing] that the evidence adduced by PW5 (Medical Officer) was not considered at the trial court. 4. That, the learned [first appellate] Judge erred in ... dismissing the appellant's appeal relying on the evidence adduced by PW1 (victim) who testified that she managed to identify the appellant through the clothes, while there was no identification parade which [was] conducted at the police station at the time when the appellant [ was] arrested. 5. That■ the learned [first appellate] Judge ... erred in law ... and fact by dismissing the appellants appeal while the [area's] ten cell leader was not called at the trial court as a witness... 6. That, [the first appellate] Judge erred in ... dismissing the appellant's appeal while the prosecution [had] failed to produce [the appellant's] caution statement in order to authenticate if the appellant was cautioned and [while there was] no police officer who appeared before the court to prove the same. 7. That, the learned [first appellate] Judge erred in law ... and fact in dismissing the appellant's appeal relying on contradictory evidence [of] PW1, PW2, PW3 and PW4 on the matter o f time when the incident occurred at the scene o f the crime. At the hearing, the appellant appeared in person, unrepresented while the respondent Republic was represented by Ms. Flavia Shiyo, learned Senior State Attorney. When the appellant was called upon to argue his grounds of appeal, he opted to hear first, the respondent's reply submissions but reserved his right to rejoin, if the need to do so would arise. Responding to the appeal, at the outset, Ms. Shiyo expressed the respondent's stance that it was supporting the appeal, mainly on the basis of the second and fourth grounds of appeal. She submitted that, from their evidence, both PW1 and PW4 saw the culprit for the first time on the fateful day. They also described him by his attire only. According to the learned Senior State Attorney, physical description of the culprit was necessary, more so because, the incident took place in broad daylight. She cited the case of Hamisi Ramadhani Lugumba v. Republic (Criminal Appeal No. 565 of 2020) [2022] TZCA 249 (9 May 2022) to support her argument. She argued further that, although PW1 identified the appellant in court, that evidence of dock identification carried no weight. To support her argument, she cited the case of Fahadi Khalifa v. Republic (Criminal Appeal No. 573 of 2020) [2022] TZCA 251 (9 May 2022). From the position which the learned Senior State Attorney took as elucidated in her submissions, she prayed that the appeal be allowed. Having heard the respondent's submissions made in support of his appeal, the appellant did not have any substantial submissions in rejoinder. He prayed that his appeal be allowed with the end result of being released him from prison. Having duly considered the submissions made by Ms. Shiyo in support of the second and fourth grounds of appeal, the issue for our determination is whether the identification evidence which was acted upon to found the appellant's conviction was sufficient. To answer the issue, we find it instructive to start by pointing out that, it is one of the principles guiding application of identification evidence that, such evidence is of the weakest kind and therefore, should be acted upon only when it is found to be watertight. In the case of Chacha Jeremiah Murimi and Others v. Republic (Criminal Appeal No. 551 of 2015) [2019] TZCA 52 (4 April 2019), the Court stated as follows: "...evidence of visual identification is the weakest kind and no court should base conviction on such evidence unless it is absolutely watertight and that every possibility o f a mistaken identify has been eliminated." See also the famous case of Waziri Amani v. Republic [1980] T.L.R. 250. In the case at hand, as alluded to above, the identification evidence relied upon by the prosecution was that of the culprit's clothes and shoes. It is obvious that, clothes and shoes of that description can be put on by any person. They could not be unique to the person from whom the victim encountered the ordeal. There is no gainsaying that, such evidence alone was weak to sustain conviction particularly because, in their evidence, the witnesses did not state that, when he was arrested, the appellant had put on the same clothes and the shoes fitting the description given by PW1 and PW4. For the reasons stated above, we agree with the learned Senior State Attorney that, the High Court erred in law in upholding the decision of the trial court which acting on the evidence of identification adduced by PW1 and PW4 to ground the appellant's conviction. Since the second and fourth grounds of appeal suffice to dispose of the appeal, we did not find it necessary to consider the other grounds of appeal. On the basis of the above stated reasons, we hereby allow the appeal, reverse the judgment of the High Court, quash the appellant's conviction, set aside the sentence and order that he be released from prison unless he is otherwise lawfully held. DATED at SUMBAWANGA this 28th day of March, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 3rd day of April, 2025 in the presence of appellant in person - unrepresented and Gerinus Mzanila, learned State Attorney for the respondent/Republic both parties linked via video facilities from High Court Sumbawanga, is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL li