CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 60 OF 2023 ________________________ REPUBLIC VERSUS ABEL PAUL GWANCHELE RULING Date of last order: 18th November 2024 Date of Ruling: 19th November 2024 MTEMBWA, J.: The Accused Person herein stands charged for the offense of Murder contrary to sections 196 and 197 of the Penal Code, Cap 16, R.E 2023. It was alleged that on 6th February 2023, at Lupondo within Mkuranga District in Coast Region, the Accused Person murdered one TEKLA BAHATI CHANILA. Briefly, on the fateful date, around night hours, the deceased, together with her husband (PW5), was outside the House. She was preparing dinner for her lovely family while her daughter (PW4) was inside the room with her lovely baby by then. While outside the House, the deceased and her husband were attacked by unknown persons with sharp objects. According to PW4, with the help of the solar 1 bulb, through the window, she was able to see one person chasing her stepfather to the nearby maize farm. She was also able to see the Accused standing outside the House through the same window. The facts revealed that soon after that, the husband (PW5) returned to the area of the scene and he could not see anyone. He knocked on the door and required his stepdaughter (PW4) to open it. Having done that, he asked her the whereabouts of the deceased. He was informed that the deceased had not entered the House. He then picked up a touch to search for the deceased. Approximately within seven paces, he saw the deceased lying on the ground helplessly. After that, quickly, the decision was made to rush the deceased to Kilimahewa Health Centre for medical treatment, where, unfortunately, she was pronounced dead. The Accused pleaded not guilty to the charge. Consequently, the prosecution fronted five (5) witnesses and tendered two (2) exhibits. At the closure of the prosecution case, this Court was called upon to enquire into whether a prima facie case was established to warrant the accused to enter his defense. Before I delve into that, I opt to examine, albeit briefly, the evidence adduced by the prosecution. At this stage, the Republic was represented by Ms. Gloria Sempasa, assisted by Ms. Caroline Kigembe, Ms. Doris Kawonga, and Mr. Joseph Isaka, both learned state attorneys. The Accused 2 enjoyed the service of Mr. Steven Jamson Shitindi, Ms. Hawa Tursia, and Mr. Philemon E. Mgonja, both learned counsels. According to PW1, ATASIA LAMECK MLIMAKIFI, on 7th February 2023, around 11:00 hours in the morning, he was at his duty station at Irene Health Center. While there, one police officer came and introduced himself as Dotto. He was accompanied by two other people, one of whom was called Mariam William (PW4). He wanted him to conduct a postmortem examination of the dead body belonging to Teckla Bahati. He examined the body by looking at the body itself. By then, it had two wounds. There was one penetrating injury on the head and an amputation cut wound on the elbow joint of the right arm. Having examined the body, he filled in the Postmortem Examination Report that he had tendered and admitted as Exhibit P1. PW1 continued to note that the cause of death was due to excessive bleeding, scientifically known as HAEMORRHAGE. It was due to the injuries sustained as a result of cut wounds. Having filled in the Report, he handed it to Dotto, the police officer. Cross-examined by defense counsels, PW1 testified that he did not treat the deceased before she died. He only examined her dead body. She died 14 hours before he examined her. He insisted that the source of death was due to excessive bleeding, although it cannot be directly 3 reflected on Exhibit P1. He added that the deceased arrived at the Hospital while she was already dead. Cross-examined further, PW1 admitted that Exhibit P1 has no stamp. He did not recall the time he used to examine the body. The dead had two wounds caused by a sharp object like a machete. The head injury was horizontal from occipital to parietal. It was a single and one-time cut. He explained that amputation of the arm means the loss of body parts. He insisted that there was external bleeding on the deceased’s body. The full-grown human being has 5 – 6 liters of blood. If a person losses 80% of the blood, he or she can be exposed to death. Re-examined by the learned state attorney, PW1 testified that the body had two wounds: one on the head and another on the right arm. Some injuries caused excessive bleeding; as such, the cause of death was due to HAEMORRHAGE. There might be other injuries that did not significantly cause death. G.5554 D/CPL DOTTO testified as PW2. He recalled that, on 6th February 2023, he was at Kimanzichana police station, his duty station. While there, a civilian who introduced himself as Peter Joseph, the Village executive officer for Lupondo Village. He informed him that one of his members by the name Tekla Bahati had been murdered at Lupondo Village. By then, the body was at Kilimahewa Health Centre. He 4 accompanied him to the health center, and having arrived there, he met the deceased’s relatives, including Mariam Willam (PW4). He interviewed her and she told him that on 6th February 2023 at around 20:00 hours at night, while at home at the Bwengu area, she was inside the House sleeping, and the deceased (her mother) and stepfather one Paul Mkama (PW5) were outside the House. She continued to let him know that suddenly, she heard noises from outside. While inside the house, she looked out through a window. She saw one person whom she recognized to be the Accused. Her stepfather (PW5) was being chased by another person whom she could not recognize. She added further that she was able to recognize him by the help of solar bulb that was installed outside the house. She explained to PW2 further that the Accused is her uncle and previously they stayed together at Bwengu area. On the same fateful night, PW2 went to Bwengu with other police officers. Upon arrival, they met the Chairmen of Bwengu Village who escorted them to the Accused’s House. Having arrived there, they knocked the door and the Accused opened it and they introduced themselves. They also informed him of the accusation he was facing, that is the murder of Tekla Bahati. After that, they arrested him to Kimanzichana Police Station and arrived there at 02:00 hours at night on 5 7th February 2023. While there, he interviewed the Accused who denied the accusations. On the same day also, the Doctor (PW1) examined the body and reported to him that the cause of death was due to excessive bleeding as a result of wounds on her head and arms. After that, he handed the dead body to her relatives for burial activities. Thereafter, he interviewed Mariam William (PW4) and Paul Mkama (PW5). Cross-examined by the Defense Counsels, PW2 testified that on 6th February at around 21:00 hours at night, he was at his duty station when VEO came there. By then, the deceased’s body was already at the Hospital. There are two hospitals around the area, but they chose to take the deceased’s body to Kilimahewa Health Center. It might have been known by another name also. He was informed of the death and the attack of another person from VEO. He interviewed Mariam orally at Kilimahewa Health Center. At the area of the scene, the House had one bedroom and a sitting room. Mariam William was in the room at the time of the incident. The House had two windows. Mariam told him that she was asleep when she heard noises from outside. Through the window, she saw the accused, but she did not tell whether he had a weapon. Cross- examined further, PW2 admitted that Mariam did not tell him if she saw the Accused attacking the deceased. He added further that the House is surrounded by trees and maize. 6 According to PW3, G.5275 D/CPL ALLIMUND, on 20th February 2023, he was at his duty station. While there, he received a file from OC- CID for Mkuranga District, ASP JONGO ALLY JONGO. The file was referenced as MKU/IR/575/2023 in respect of the murder incident against the Accused person. He wanted him to investigate the incident. Having been so instructed, he reviewed the file and found the witness and caution statements. He detected that some of the witness statements were missing, and thus, he had to make a follow-up. He went to Kilimahewa Health Center and met the doctor (PW1) and interviewed him. PW1 revealed to him that the source of death was due to a head injury. Having interviewed PW1, PW3 went to the area of the scene at Bwengu within Lupondo Village, in Mkuranga District. Having arrived there, he met the chairman, Muhusini Hamis, who directed him to the area of the scene. While there, he was shown to the bedroom where the deceased used to live. The House was separated away from other Houses in the Village. It was surrounded by maize fields, and it was roofed. In his investigation, he discovered that solar power was installed. Outside the House, there was a veranda where, on the day of the incident, the deceased and Paul Mkama (PW5) were sitting. There is one bedroom where the deceased’s daughter (PW4) was on the fateful night. After that, he drew up a sketch map and was tendered as Exhibit P2. 7 PW3 continued to testify that the deceased’s daughter was in the room. Having heard the noises, she looked outside and saw the Accused standing. The window had a mosquito wire/net. Outside the house, near the window, there was solar bulb lighting. He drew the sketch map and submitted the file to the National Prosecution Service (NPS). In his investigation, he discovered that the one involved in murdering the deceased was the Accused because he was seen outside the House standing by Mariam. The Report on postmortem examination also supports this observation. Cross-examined by the Defense Counsels, PW3 admitted that, in his investigation, there was no one who witnessed the Accused attacking the deceased on the day of the incident. He also revealed that he was absent when the doctor examined the body. Muhusini was the one who directed him to draw the sketch map. However, he was not present at the time when the incident occurred. He was only informed of everything by Mariam. The House had two rooms, each with a window covered by a mosquito net. He admitted that mosquito net affects visibility. Mariam used the window in her room to see the Accused outside the house. Cross-examined further, PW3 admitted not to know the watts or solar bulb lighting power. He could also not tell the intensity of the light. On the fateful day, the neighbors were not present. He admitted not to 8 know if the deceased had another husband at Rufiji with eight children. He admitted to know that the Deceased was in conflict with Mariam’s ex- husband, Msumalito. He also knew that the deceased was in conflict with the Accused, and that is why he believed that he was involved in the incident. He did not know when Paul Mkama returned after being chased by one of the attackers but when he did, he found Mariam still in the room. Msumalito was discharged by the National Prosecution Service (NPS) upon entering nolle prosecui. He admitted that Mariam (PW4) was one of the prosecution's essential witnesses. MARIAM WILLIAM BUNDALA testified as PW4. She recalled that on 6th February 2023, at around 21:00 hours at night, was at Home in the Room. While there, she heard noises outside the House and realized that it was her mother, the deceased. She woke up and looked outside the house through the window to see what was happening. She saw her stepfather (PW5) being chased to the maize farm by one of the attackers. She then locked up the room and returned to the window. She continued looking outside through the window and saw the Accused person standing near the window, trying to peek inside the House. Examined further, PW4 testified that she recognized him because a solar bulb was outside the house, at the top of the window. She knows him because, together with her deceased mother, lived at his home for one month when they came 9 from Kitonga, Mkulanga District. The Accused is also married to Suzan, the deceased’s sister. PW4 continued to testify that she was surprised to see the Accused because he was not used to come there. This is because the deceased and the Accused were in conflict. He happened to send Bundala to set the deceased’s House on fire, and the whole house was burnt. After that, she saw the stepfather coming back home. Having seen that, the Accused left the area. The stepfather required her to open the door, and after she had done that, he asked her the whereabouts of the deceased. She told him that she had not entered the House. Then, they both went out in search of the deceased, and soon after that, the stepmother informed her that the deceased had been discovered lying at the back of the House, and she went there also to see her. PW4 continued to note that the deceased’s body had multiple injuries on her arm and head. They called the village chairman, one Mukhusin, and after arriving there, he called the police, who required them to take the deceased to the hospital. They boarded a motorcycle and carried the deceased, stepfather, and the village chairman. By then, the deceased was helpless. She could not even sit on her own. Later on, she joined them at Kilimahewa Hospital. Having arrived at the Hospital, the Doctor informed them that her mother had already died. After that, 10 Afande Dotto came to the hospital and started interviewing her. He wanted to know what happened. PW4 testified further that on 7th February 2023, at around 11:00 hours in the morning, she was at Kilimahewa Hospital with her stepfather and baby. While there, the doctor (PW1) examined the body to know the cause of the death. After that, the doctor informed them that the cause of death was due to excessive bleeding. After that, the dead body was handed to them for burial activities. She recognized the Accused in the dock. Cross-examined by the Defense Counsels, PW4 testified that she visited the Accused in August 2022 from Kitonga, where she lived. Before that, the deceased lived at Ikwiriri, where she had a family with William Bundala. The family had six issues, although they were not legally married. The two never divorced each other. She admitted that Paulo Mkama (PW5) used to live with someone’s wife. She added that, together with the deceased, they stayed at the Accused’s House for one month. They moved from there because of the conflict between the two. The accused wanted them to leave the house because William Bundala was disturbing him, and that was when the conflict between them started. The two could no longer talk to each other. 11 Cross-examined further, PW4 admitted that Msumalito, the Accused, and William Bundala were both in conflict with the deceased. On the day of the incident, she was inside the room and had yet to fall asleep. The windows had mosquito nets with curtains. She heard the noises from the deceased, not Paulo Mkama (PW4). She admitted not seeing the accused attacking the deceased. She also admitted not having described the solar bulb's power and intensity. At the area of the scene, there were three persons: herself, the Accused Paulo Mkama (PW5) and the one who was chasing him. She also admitted that it is possible that the one who chased Paulo Mkama (PW5) was the one who attacked the deceased. On further cross-examination, PW4 testified that the Accused had never been found guilty of arson. To the surprise of the Court, PW4 admitted to have not visualized the incident properly because she was inside the room. Under cross-examination, PW4 also admitted that the intensity of the light was the same as that of TANESCO bulbs, but it depended on the bulb manufacturer. She insisted that it was the Accused because he came home on 5th February 2023 and wanted the deceased to receive Tanzanian Shillings 80,000/=, but she refused. He then became furious and left. She insisted not to see the Accused attacking the deceased. PW5, PAULO ELIUDI MKAMA, testified that on 6th February 2023, around 21:00 hours at night, he was at home with the deceased and PW4, 12 who was inside the house. While there, they were attacked by people with weapons like Machete. At the scene, there was a solar bulb. He then run to the maize farm in search of help from the neighbors. He saw two attackers, but he could not recognize their faces because he was in a state of panic. Upon arriving at the neighbor, I asked him if the deceased also had arrived. He then returned home and found PW4 alone. She told him that she had not seen the deceased. She also told him that she saw the Accused standing outside the House. He took a torch to search for the deceased. At the back of the House, he saw her lying on the ground helplessly. He called her, and she responded in a low voice. He then called the Village Chairman, one Mukhusin and upon arrival, he arrived, VEO who told them to pick him up to the police station. PW5 continued to testify that they boarded a motorcycle to VEO’s House, and having arrived there, he told them to go directly to Kilimahewa Hospital while he was passing through the police station to pick up the PF3. They safely arrived at the Hospital and were accordingly received. Within three minutes, doctors called him to start treatment, too, because he was also injured. While on treatment, Afande Dotto and VEO appeared. After that, he was informed by the medical doctor in charge that Tekla Bahati was already dead. She died on the way to the Hospital. 13 On 7th February 2023, at around 10:00 in the morning, Afande Dotto and VEO came to the Hospital and met a doctor. The doctor examined the body in his presence, PW4 and VEO, and it was revealed that the cause of death was due to excessive bleeding due to multiple injuries. The injuries were in the arm, shoulder, and head. After that, the body was handed to him for burial activities. He recognized the Accused in the dock. Cross-examined by the Defense Counsels, PW5 testified that he knew the Accused as a neighbor and not a person facing accusations. On the day of the incident, he did not recognize the faces of the attackers, but he saw two people. The deceased had more than three injuries on her arm and head. As far as he knows, the attackers had sharp weapons like Machete. He admitted that he was present when the deceased’s house was set on fire. The suspect was Accused. At the police, the two would pay each other Tsh. 350,000/= to settle the matter out of Court. Cross- examined further, PW5 admitted that PW4 told him that she saw the Accused standing on the ground, not doing anything. Re-examined by the learned state attorney, PW5 testified that the weapon used was Machete. He did not recognize the attackers because he was in a state of panic. The Accused was arrested because of the conflict between him and the deceased. 14 Indeed, according to section 231 (1) of the Criminal Procedure At, Cap 20 RE 2019, at the closure of the evidence in support of the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defense either in relation to the offense with which he is charged or in relation to any other offense of which, the Court shall again explain the substance of the charge to the accused person and inform him of his rights, including the right to defend himself and call witnesses. The question would be, what would happen if the case had not been made out against the accused person? Section 230 of the Act is of assistance. It provides that; Where, at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence of which, under the provisions of sections 300 to 309 of this Act, he is liable to be convicted, the court shall dismiss the charge and acquit the accused person. In Sunderji vs. Republic (1971) HCD 216, the Court noted that before the accused can be called upon to enter his defense, the prosecution must establish, at minimum, a prima facie case. In the case of Republic vs. Edward Mongo (2003) TLR 45, the Court noted that; A submission of no case to answer may be properly be upheld when there has been no evidence to prove an essential element in the offence charged, or where the evidence adduced by the 15 prosecution has been so discredited as a result of cross- examination or is so manifestly unreliable that no reasonable tribunal would at that stage convict. In this case, the prosecution paraded five witnesses, as paraphrased above. PW1 is a medical officer who examined the body and discovered that the cause of death was excessive bleeding due to cuts wounds the deceased sustained during the attack. PW2, PW3 and PW5 both depended on the visual identification by PW4. To establish whether the identification was watertight, one needs to examine the evidence of PW4 closely. According to PW4, having heard the noises outside the House, she looked outside through the window covered with mosquito net/wire and saw her stepfather (PW5) being chased by one of the attackers. She locked the door and went back to the window. While peeking, she saw the accused standing out of the House near the window. She identified him with the help of a solar bulb lighting the same as the TANESCO bulbs. PW4 believed that it was the Accused who attacked the deceased because he was seen at the area of the scene standing, and previously, he was in conflict with the deceased. Explaining the source of the misunderstanding between the Accused person and the deceased, PW4 testified that earlier on, the Accused happened to send Bundala to burn the deceased’s House. Much as PW4 testified to have seen the Accused coming to the deceased 16 to beg for forgiveness, she maintained that he was the one who attacked the deceased on the fateful night. With respect to prosecution, what PW4 believes is mere speculation or suspicion that cannot be related to the commission of the offense. The fact that the two were in conflict and that the Accused was at the area of the scene cannot be a ground for conviction. Cross-examined by the defense counsels, PW4 admitted that three persons were in serious conflict with the deceased, including the Accused, Msumalito, and William Bundala (the deceased’s ex-husband). In such circumstances, it cannot safely be inferred that among the three persons, it was the Accused person only who attacked the deceased on the fateful night. It is a principle of the law that suspicion, however grave, is not a basis for a conviction in a criminal trial (see MT—60330 PTE Nassoro Mohamed Ally vs Republic, Criminal Appeal No. 73 of 2002 (unreported). In the case of Lidumula Luhusa @ Kasuga vs. Republic, Criminal Appeal No. 352 of 2020, the Court of Appeal of Tanzania at Dodoma, the Court observed that; We cannot, all the circumstances considered, avoid concluding that the prosecution of the appellant was founded on a mere suspicion rather than cogent evidence that, being the brother of Pili Lusuga who was killed by the deceased (Malima) and the fact that he was present at the crime scene, he must have been the one who killed 17 the deceased in revenge. The case against him was based on suspicion. Even for the sake of argument that it was the accused who attacked the deceased on the fateful night because he was seen at the area of the scene, the prosecution evidence is wanting of cogent proof because mere presence at the crime scene is insufficient to convict someone as a perpetrator, an aider or abettor, as established in Damiano Petro and Jackson Abraham vs. Republic (1980) TLR 260. It must be insisted here that mere presence at the scene of a crime or mere knowledge that a crime is being committed is not sufficient to establish that the Accused committed the crime. He must be a participant and not merely a knowing spectator. This Court may consider the accused’s presence along with other evidence, which I don’t see in this case. It must be noted further that even if it is proved beyond reasonable doubt that the Accused was present at the area of the scene, that alone sounds unconvincing to ground a conviction. The prosecution must leave no stone unturned by adducing evidence linking the Accused with the commission of the offense at the area of the scene. Standing at the location of the scene alone leaves a lot to desire. In the case of Emmanuel Chigoji vs. Republic, Criminal Appeal No. 355 of 2018, the Court said; 18 We further note that, even if it could have been proved beyond reasonable doubt that, indeed, the appellant was the one who was seen by PWI at the scene of crime on the material night, still the prosecution evidence is wanting as being seen at the scene of crime by itself is not a proof that one has committed the alleged offences as it was held in Jackson Mwakatoka & 2 Others v. Republic [1990] TLR 17 that, mere presence of the first appellant at the scene of the crime was not sufficient to implicate him to the murder. Invariably, there has been a confusion between the presence and the area of the scene and participation in the commission of the crime. The prosecution should be excited to know that the law punishes participation, not presence. If this is left unattended, there is a possibility of punishing innocent people and leaving the perpetrators free. In Lidumula Luhusa @ Kasuga (supra), the Court underscored the above position of the law and observed that; Mr. Haule is certainly right that although the appellant does not dispute being at the crime scene does not necessarily mean that he participated in the killing of the deceased. Occasionally, there happens confusion between presence at the scene of crime and participation in the commission of the offence. Such confusion, if allowed to prevail, may lead to conviction of innocent persons. It is the stance of the law that it is participation which is punishable by the law. We have underscored that position in various decisions such as in Damiano Petro and Jackson Abraham v R [1980] TLR 260, where we categorically stated that mere presence at the scene of crime does not constitute one a party to an offence. 19 (emphasis mine) According to PW4, she saw the Accused standing outside through the window covered with a mosquito net on a fateful night. She added further that she knew the Accused very well as she happened to stay in his House with the deceased for approximately one month. Furthermore, the Accused was married to the deceased’s sister. Based on this testimony, it is convincing that the Accused and PW4 were familiar with each other. In such circumstances, there is a question of recognition, which is safer and more reliable than identification by a stranger. However, its reliability is not absolute unless all possibilities of mistaken identity are eliminated. In that regard, the criteria for identification are never excluded when a witness claims to have recognized someone. In Shamir John vs. Republic, Criminal Appeal No. 166 of 2004 (unreported), the Court observed that: - Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the court should always be aware that mistakes in recognition of dose relatives and friends are sometimes made. In order to eliminate all possibilities of mistaken identity, the Court should consider whether the Accused was correctly recognized at the area of the scene. This will take us to the criteria underscored in the case of Waziri Amani vs. Republic (1980) TLR 250, where the Court 20 cautioned, on pages 251 to 252, that: evidence of visual identification, as Courts in East Africa and England have warned in a number of cases, is of 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. The Court continued to note that: Although no hard and fast rules can be laid down as to the manner a trial Judge should determine questions of disputed identity, it seems clear to us that he could not be said to have property resolved the issue unless there is shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would, for example, expect to find on record questions as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not. These matters are but a few of the matters to which the trial Judge should direct his mind before coming to any definite conclusion on the issue of identity. Waziri Aman’s case (supra) is one of the landmark cases on visual identification. However, as the Court also observed in that case, the factors listed therein were not exhaustive, and in each case, all the circumstances surrounding it must be considered. In some cases, a list of 21 factors has been expanded. In Jaribu Abdallah vs. Republic, Criminal Appeal No. 220 of 1994 (unreported), it was held: In matters of identification it is not enough merely to look at factors favouring accurate identification. Equally important is the credibility of witnesses. The conditions of identification might appear ideal but that is no guarantee against untruthful evidence. And that; Eye witness testimony can be a very powerful tool in determining a person's guilt or innocence. But it can also be devastating when false witness identification is made due to honest confusion or outright lying. In this case, PW4 testified that she saw the Accused standing outside the House through a window covered with a mosquito net. As to the source of light, she testified that the House was installed with a solar bulb. Cross-examined by the defense counsels, PW4 informed this Court that the solar bulb illuminated the same as TANESCO bulbs. The burning issue is whether their respective evidence met the threshold set in Waziri Amani's case (supra). In my opinion, the evidence regarding the brightness and intensity of the light illuminated by the solar bulb was lacking. Even the distance covered by the light was not explained clearly for the Court to assess the extent of brightness. It was not enough to say that the solar bulb illuminated the same as TANESCO bulbs. On this, I am guided by the observation of the Court of Appeal in the case of Juma 22 Hamad vs. Republic, Criminal Appeal No. 141 of 2014 (unreported), where it was held that: When it comes to the issue of light, clear evidence must be given by the prosecution to establish beyond reasonable doubt that the light relied on by the witnesses was reasonably bright to enable the identifying witness to see and positively identify the accused persons. Bare assertions that "there was light" would not suffice. Linked to the above is the question of proximity or distance between where PW4 was standing and the person she recognized as the Accused and whether or not there was any obstruction impairing visibility. Such evidence was vital for the Court to assess the capability of the witness to recognize or identify the Accused at the area of the scene. It was not enough to say that “I saw the Accused person standing outside” without explaining more about the distance and whether or not there was any obstruction affecting visibility. According to Exhibit P2 (the Sketch Map), there was a tree at a distance of ten meters from the veranda where the deceased was preparing dinner on a fateful night. PW2 testified that trees surrounded the House. Therefore, there was a need to lay tangible and convincing evidence on whether or not those trees obstructed the visibility of PW4 to eliminate all possibilities of mistaken identity. In Nyangera Karegea vs. Republic, Criminal Appeal No. 468 of 2015 23 (unreported), after reciting the factors set out in Waziri Amani's case (supra), the Court stated: - We may add one more aspect touching on obstruction between the suspect and the witness. The court will take into account the general conditions that have affected the sighting, for instance, whether it was an extremely foggy day, or the sighting took place in a crowded area; or there was a large obstacle obstructing the view. From the above analysis, I am satisfied that the prosecution failed to establish a prima facie case to answer at the lowest level, warranting the Accused person to enter his defense. To that end, I dismiss the charge and acquit the Accused person in terms of section 230 of the Criminal Procedure Act (supra). I further order that the Accused be released from the remand prison immediately unless otherwise lawfully held. I order accordingly. Right of appeal fully explained. DATED at DAR ES SALAAM this 19th November 2024. H.S. MTEMBWA JUDGE 24