Judgement Criminal Appeal No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI CRIMINAL APPEAL NO. 9470 OF 2024 (Originating from Criminal Case No. 126 of 2023 in the District Court of Same at Same) PETER LEONARD KIWIMBE……...……………………………… APPELLANT VERSUS REPUBLIC………………………….….…………….…………. RESPONDENT JUDGEMENT Date of Last Order: 10.06.2024 Date of Judgment: 08.07.2024 MONGELLA, J. The appellant herein was arraigned in the district court of Same at Same (hereinafter, the trial court) for grievous harm under Section 225 of the Penal Code [CAP 16 R.E 2022]. The particulars of offence as derived from the charge are that: on 04.08.2023 at Same Township area within Same district in Kilimanjaro region, the appellant unlawfully assaulted one Halifa Rashid (hereinafter, victim or PW1) on his left eye using a sharp object thereby causing him grievous harm. To prove the charge, the prosecution paraded four (4) witnesses and tendered two exhibits admitted as PE1 and PE2. The Page 1 of 23 prosecution case was to the effect that: on 04.08.2023 around 09:00pm, PW1 arrived at Same Town from Mgagao area. Intending to have a few drinks, he made his way to Nice Bar located at Same Town. After a while, he took one Safari Larger bottle and headed out of the bar. At the gate of the bar, the appellant stood as a watch guard. The appellant attempted to grab the bottle from PW1 who denied to hand over the same to him telling him that he was finishing his liquor. The appellant attacked PW1 hitting him with a club on his right shoulder and cheek. While battling for the bottle, the appellant stabbed his left eye with a sharp object. PW3 witnessed the commotion and eventually came closer whereby he found the appellant hitting PW1 who was already on the ground, with blood on his face, most of it, gushing out from his left eye. PW3 tried restraining the appellant while PW1 rushed out from the scene. PW1 rushed to the police and was given a PF3. He was then attended by PW2 who provided the emergency care. Finding the damage on the eye serious, he referred PW1 to KCMC hospital. On 05.08.2023, PW1 attended the hospital whereby upon examination, his left eye was found utterly damaged. He had surgery and his eye removed. He was admitted for about 5 days for further treatment. On 13.08.2023, around 09:00pm, PW4 arrested the appellant at Nice Park bar and took him to Same police station. PW4 interrogated him on 14.08.2023 around 10:00am. The appellant was then arraigned on 29.08.2023. In his defence, the appellant testified on oath and called 2 witnesses. He totally denied the charge against him alleging that Page 2 of 23 he had never assaulted anyone in his entire life and was thus surprised by the accusation made against him. He admitted that he was at work on the material day, but denied occurrence of any incident at the bar that night. Both DW2 and DW3, attendants at Nice Park Bar recalled the date as being 04.10.2023 and also denied occurrence of any incident of such nature on the material day. DW3 was firm that there was no such incident on any other date. The trial court found the charge against the appellant proved beyond reasonable doubt. He was thus convicted and sentenced to serve 5 years in prison and required to pay PW1 TZS. 500,000/= as compensation for treatment costs. Aggrieved by the conviction and sentence, the appellant has preferred this appeal on the following grounds: 1. That, a trial hon. magistrate erred in law and fact when convicted and later sentenced the appellant despite of great contradiction in the evidence of the prosecution witnesses. (sic) 2. That, a trial hon. magistrate erred in law and fact for convicting the appellant based and relied on Exhibit PE2 a caution statement of the accused which prepared and admitted against the requirement of the law. (sic) Page 3 of 23 3. That, a trial Hon. magistrate erred in law and in fact for convicting and sentencing the appellant while no sufficient identification evidence of the appellant at the night on the scene. (sic) 4. That, the learned trial magistrate grossly erred both in law and fact in convicting and sentencing the appellant despite the charge being not proved beyond reasonable doubt against the appellant and to the required standard by the law. (sic) The appellant denied the charge levelled against him. To prove the charge, the prosecution paraded three witnesses and tendered one exhibit. The appeal was resolved by written submissions whereby the appellant was unrepresented and the respondent was represented by Ms. Imelda Pelagi Mushi, learned state attorney. Submitting in chief, on the 1st ground, the appellant alleged that there were contradictions in the prosecution witnesses’ evidence. He explained that, on one hand, PW1testified that the person that inflicted the grievous harm was dressed in black and white rubber shoes, grey trousers and a reddish green Maasai Sheet; while on the other hand, PW3 stated that he saw two people fighting and one was a watchman from the bar whom he identified as being dressed like a militia. The appellant alleged that the discrepancy raises doubts as to who inflicted the harm considering that it was at night. In his view, the contradiction went to the root of the matter. He Page 4 of 23 cemented his argument with the case of Shabani Haruna @ Dr. Mwagilo vs. Republic (Criminal Appeal No. 396 of 2017) [2021] TZCA 708 (1 December 2021) TANZLII. Arguing on the 2nd ground, he challenged the admission of his cautioned statement. He contended that Exhibit PE2, his caution statement, was prepared and admitted against the requirement of law. He argued so alleging that he was interviewed after the lapse of four hours set under Section 50(1) and 51(1)(a), (b) of the Criminal Procedure Act [ Cap 20 RE 2022]. To substantiate his assertion, he specifically referred to the testimony of PW4, the police officer who testified to have arrested him on 13.08.2023 at 09:00pm and interviewed him on 14.08.2023 at 10:00am. He contended that the delay was not justified, nor was there any application sought for extra time as provided under Section 51(1)(a), (b) of the Criminal Procedure Act and as held in Shida Luanda Aidan @ Emmilian vs. Republic (Criminal Appeal No. 192 of 2014) [2016] TZCA 652 (20 April 2016) TANZLII and in Pambano Mfilinge vs. The Republic, Criminal. Appeal No. 283 of 2009, CAT at Iringa (unreported). The appellant further contended that the justification by PW4 of waiting for the victim’s health to improve so he could interrogate him could not stand. In his stance, the act raises doubts as to whether the cautioned statement was recorded involuntarily and based on instruction issued by PW1’s wife whom PW4 testified to have contacted to know of PW1’s progress. He termed the act as unlawful. He alleged that since the victim was at KCMC hospital and he had already been interviewed by PW4 while at the hospital Page 5 of 23 and prior to his arrest, then there was no reason for the delay to record the cautioned statement. Maintaining that the cautioned statement was prepared contrary to the requirement of law, he urged the court to expunge it from the record. Addressing the 3rd ground, the appellant faulted the evidence adduced in relation to his identification at the crime scene. He contended that being at night hours, the assailant that caused grievous harm could not be identified. That, although PW1 testified on there being a light bulb outside the bar, he did not mention the kind of bulb, whether it was solar or electric, the number of such lights nor the distance it or they illuminated in meters. He had the stance that the identification was not properly made thereby occasioning mistaken identity. He cemented his averment with the case of Raymond Francis vs. Republic [1994] T.L.R 103; Waziri Amani vs. Republic [1980] TLR 250, Lezjor Tepper vs. The Queen [1952] AC 480 and Mugo vs. Republic [1966] E.A 124. The appellant further contended that the faulty identification of the appellant at the crime scene is what caused contradiction on how the assailant was dressed on the material day. He argued that the fact that PW1 and PW3 knew the appellant as a watchman at Nice Park bar was not sufficient to prove that it was the appellant who stabbed and caused grievous harm to PW1. In his view, the conditions for proper identification of the appellant ought to have been conclusive. He fortified his arguments with the case of Boniface s/o Siwingwa vs. Republic (Criminal Appeal 421 of 2007) [2010] TZCA 108 (21 July 2010) and Mabula Makoye & Another vs. Page 6 of 23 Republic (Criminal Appeal 227 of 2017) [2020] TZCA 1762 (28 August 2020), both at TANZLII. Expounding the 4th ground, the appellant argued that the prosecution failed to prove the case against him beyond reasonable doubt. He based this ground on his arguments faulting the identification of the assailant by PW1 and contradictions between the evidence of PW1 and PW3 as to how the appellant was dressed. In addition, he pointed out the errors in the cautioned statement taken by PW4. Considering these flaws, he contended that the same raise reasonable doubts which should be resolved in his favour. He cemented this argument with the case of Hassan Singano @ Kang'ombe vs. Republic (Criminal Appeal 57 of 2022) [2022] TZCA 261 (11 May 2022) TANZLII. The appellant finalized his submissions by praying for the appeal to be allowed, his conviction quashed and sentence set aside and that he be set at liberty. On behalf of the respondent, Ms. Mushi opposed the appeal. Replying to the 1st ground, she firmly disputed existence of any discrepancies between the evidence of PW1 and PW3. On the other hand, she contended that, if there was any discrepancy the same was minor and incapable of affecting the credibility of the witnesses. She found the contradictions not going into the root of the matter. Page 7 of 23 Further, she contended that both, PW1and PW3 properly identified the appellant at the crime scene. That, the two even mentioned the source of light and its intensity that enabled them to properly identify him. That, they as well testified to have known the appellant prior to the incident. In her stance, the contradiction as to how the assailant was dressed was immaterial since there was no doubt that the appellant stabbed PW1 and caused him grievous harm. The learned state attorney further averred that since the contradiction was minor, this court should overlook the same as a minor contradiction or discrepancy not going to the root of the matter. She supported her averment with the case of Dickson Elia Nsamba Shapwata and Another vs. Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 TANZLII. Replying to the 2nd ground, Ms. Mushi agreed that indeed the cautioned statement, admitted as Exhibit PE2, was taken contrary to the requirement of the law. She conceded that the appellant was arrested on 13.08.2023 at 09:00pm and interrogated on 14.08.2023 rendering Exhibit PE2 to be recorded contrary to requirement of Section 50(1) (a) of the Criminal Procedure Act. She as well conceded that there was no extension sought under Section 51(1), (a) and (b) of the Criminal Procedure Act. She therefore requested the court to expunge the Exhibit from the record. On the other hand, however, Ms. Mushi was convinced that there remained standing sufficient evidence to implicate the appellant on the offence charged even if the exhibit is expunged. She Page 8 of 23 specifically referred to the direct evidence of PW1, PW3 and the Medical Report (Exhibit PE1), which she considered being sufficient to incriminate the appellant. Arguing further, she contended that PW1’s testimony showed that he suffered grievous harm inflicted by the appellant who stabbed him with a sharp object on his left eye. That, PW1 identified the appellant with an electric bulb outside the bar whose intensity and brightness was capable of covering the area where the incidence took place. She added that the incidence took place about 6 minutes from the moment the appellant tried to grab the beer bottle from PW1. In her stance, PW1 had enough time to observe the appellant. Further, she said that PW1’s evidence was corroborated by that of PW3. Addressing the legal position on credibility of witnesses, Ms. Mushi averred that each witness is entitled to credence and his evidence accepted unless there are good and cogent reasons for not believing the witness. He cemented his argument with the case of Goodluck Kyando vs. Republic [2006] TLR. In the premises, she prayed for the court to take regard that oral evidence is one of the methods of receiving evidence in a court of law and crucial in proving a particular fact and that the court is entitled to rely on the same. She made reference to Section 62(1), (a) of the Evidence Act [Cap 6 RE 2022] and the case of Abas Kondo Gede vs. Republic (Criminal Appeal No. 472 of 2017) [2020] TZCA 391 (12 August 2020) TANZLII, to bolster her point. She further prayed that this court to rely on documentary evidence, being, the PF3 admitted as Exhibit PE1 which proved that PW1 Page 9 of 23 sustained a grievous harm. She added that PW2 also described that upon examining PW1 he found his eye raptured and upon further referral to KCMC the eye was removed completely. On the 3rd ground, Ms. Mushi had the stance that the appellant was properly identified at the crime scene by PW1 and PW3. She maintained her stance that the source of light was well described by the witnesses. Referring to the testimony of PW1, she submitted that PW1 stated that there was an electric bulb at the bar whose intensity and brightness covered a wide area up to the gate and the attack lasted for about six minutes from when the appellant attempted to grab the bottle from him. She further referred to the testimony of PW3 whereby she was convinced that the same corroborated PW1’s evidence. In addition, she submitted that PW3 also stated how he was able to identify the appellant and that the whole incident took place for about five to ten minutes. In that regard, she was of the view that the evidence as to the appellant’s identification was watertight as the intensity of light, source of light, time taken and area covered was established. She referred the case of Waziri Amani vs Republic (supra) which governs matters of identification of the culprit particularly at night hours. Addressing the final ground, Ms. Mushi averred that it was the duty of the prosecution to prove the charge as he who alleges must prove. In her stance, the prosecution successfully proved all the elements of the offence as required under Section 225 of the Penal Page 10 of 23 Code. That the prosecution proved that the victim sustained grievous harm through the evidence of PW2, which was also supported by Exhibit PE2. She added that the prosecution proved that the harm was inflicted unlawfully and the accused was the one that caused the harm. In that regard she specifically referred the direct evidence by PW1 and PW2. The learned state attorney maintained her stance that the prosecution proved the case beyond reasonable doubt. She thus finalized her submissions by praying for the appeal to be dismissed as it lacks merit. After thorough consideration of the grounds of appeal, the rival submissions by the parties and the trial court record, I prefer to commence with the 2nd ground of appeal. Under this ground, the appellant challenges the trial court’s reliance on the cautioned statement which was prepared contrary to requirement of law. This complaint was in fact admitted by Ms. Mushi. The trial court typed proceedings shows that PW4 arrested the appellant on 13.08.2023 at 09:00hrs and then interviewed him on 14.08.2023 at 10:00hrs. This is apparent from PW4’s evidence. Section 50 (1) (a) and 51(1), (a) of the Criminal Procedure Act requires that a suspect be interviewed within 4 hours after his arrest. Such period could also be extended subject to set procedures. The provisions states: “50. (1) For the purpose of this Act, the period available for interviewing a person who is in restraint in respect of an offence is- (a) subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period of four hours Page 11 of 23 commencing at the time when he was taken under restraint in respect of the offence; (b) if the basic period available for interviewing the person is extended under section 51, the basic period as so extended. (2) In calculating a period available for interviewing a person who is under restraint in respect of an offence, there shall not be reckoned as part of that period any time while the police officer investigating the offence refrains from interviewing the person, or causing the person to do any act connected with the investigation of the offence- (a) while the person is, after being taken under restraint, being conveyed to a police station or other place for any purpose connected with the investigation; (b) for the purpose of- (i) enabling the person to arrange, or attempt to arrange, for the attendance of a lawyer; (ii) enabling the police officer to communicate, or attempt to communicate with any person whom he is required by section 54 to communicate in connection with the investigation of the offence; (iii) enabling the person to communicate, or attempt to Page 12 of 23 communicate, with any person with whom he is, under this Act, entitled to communicate; or (iv) arranging, or attempting to arrange, for the attendance of a person who, under the provisions of this Act is required to be present during an interview with the person under restraint or while the person under restraint is doing an act in connection with the investigation; (c) while awaiting the arrival of a person referred to in subparagraph (iv) of paragraph (b); or (d) while the person under restraint is consulting with a lawyer. 51.-(1) Where a person is in lawful custody in respect of an offence during the basic period available for interviewing a person, but has not been charged with the offence, and it appears to the police officer in charge of investigating the offence, for reasonable cause, that it is necessary that the person be further interviewed, he may- (a) extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; or (b) either before the expiration of the original period or that of the extended period, make application to a magistrate for a further extension of that period. Page 13 of 23 (2) A police officer shall not frivolously or vexatiously extend the basic period available for interviewing a person, but any person in respect of whose interview the basic period is extended pursuant to paragraph (a) of subsection (1), may petition for damages or compensation against frivolous or vexatious extension of the basic period, the burden of proof of which shall lie upon him. (3) Where a magistrate to whom application has been made by a police officer under subsection (1), after having afforded the person, or a lawyer acting on his behalf, an opportunity to make submissions in relation to the application, is satisfied- (a) that the person is in lawful custody; (b) that the investigation of the offence by the police officer has been, and is being carried out as expeditiously as possible; and (c) that it would be proper, in all circumstances to extend the relevant period, the magistrate may extend that period for such further period as he may deem reasonable.” Considering the above provisions and the facts on record, it is clear that the interview was conducted contrary to the requirement of law. Even if the law, in special circumstances, allows exceptions to the rule of conducting the interview within four hours, where extension of time is needed, it ought to be sought and granted Page 14 of 23 under requirements set under Section 51 of the Criminal procedure Act. Further, I find the justification offered by the prosecution witness that the delay was occasioned by waiting on the progress of the victim not being reasonable. PW4 was not mandated to wait on progress of the victim to interview the appellant. Since the incident took place a week before and the victim had already been interviewed, the appellant’s arrest was made on sufficient information. He thus ought to have been interviewed within 4 hours based on allegations levelled against him. The omission was an irregularity that went to the root of the matter rendering the evidence inadmissible. The Court of Appeal elaborated on the same issue in the case of Mkwavi s/o Njeti vs. Republic (Criminal Appeal No. 301 of 2015) [2016] TZCA 693 (25 July 2016) whereby it stated: “Since the cautioned statement (Exhibit P4) was taken four (4) days after the appellant was arrested and put in restraint, it was done contrary to section 50 (1) (a) of the CPA. It is now settled law that non- compliance with the provisions of sections 50 and 51 of the CPA is a fundamental irregularity that goes to the root of the matter and renders the illegally obtained evidence inadmissible and one that cannot be acted upon by the Court.” See also; Paschal Maganga Another vs. Republic (Criminal Appeal No 268 of 2016) 2018 TZCA 511 (15 February 2018) TANZLII. The consequences of failure to comply with the settled requirement under the law is for the cautioned statement to be expunged. Page 15 of 23 Dealing with similar circumstances, the Court in Fred Maiko Others vs. Republic (Criminal Appeal No 652 of 2021) 2024 TZCA 68 (20 February 2024) TANZLII, stated: “What is clear in all the statements is that none of them complied with the requirement of section 50 (1) (a) and (b) of the CPA. These statements were recorded outside the basic period of four hours available for interviewing a person who is under restraint. As to the recourse, the unanimous contentions by learned counsel represent the correct position of the law and we cannot but agree with it. In Pambano Mfilinge v. Republic, Criminal Appeal No. 283 of 2009 (unreported), the Court guided on the consequence of contravention with the law when it held: "The period available for custodial interview by the police is regulated under sections 50 and 51 of the Criminal Procedure Act ... Upon numerous occasions, this court has been confronted with situations similar to the one at hand... In all these decisions the court held that non-compliance vitiated the particular cautioned statement. To this end, we are left with no other option than to expunge the cautioned statement from the record." Apart from the complained flaw in recording the cautioned statement, I have also observed from the record that the appellant denied knowing the statement. The trial Magistrate surprisingly rejected the objection for the same not being on point of law, but facts. I find it a total misconception on her part. In my considered Page 16 of 23 view, when an accused denies knowing the cautioned statement, the same is as good as saying that he never made such statement. In that respect, the accused will have repudiated/retracted the statement, something which mandates the trial court to conduct an inquiry to ascertain whether the statement was made by the accused or not and was made voluntarily. This is a legal issue and requirement. In this case however, no inquiry was conducted by the trial court, which was contrary to the law. See: Nyerere Nyague vs. Republic (Criminal Appeal Case No. 67 of 2010) [2012] TZCA 103 (21 May 2012) TANZLII; and Paulo Maduka & 4 Others vs. The Republic (Criminal Appeal No. 110 of 2007) [2009] TZCA 69 (28 October 2009). On the strength of the above referred to provisions and case laws cited, I hereby expunge the cautioned statement from the record. On the 1st and 3rd grounds, the appellant challenged his identification at the crime scene terming it insufficient and unreliable. He faulted the identification on two grounds being; one, that the source and intensity of light were not disclosed; and two, there were contradictions on his appearance on the material day. On her part, Ms. Mushi had the firm view that there was clear evidence on the source and intensity of light. She as well found the alleged contradictions being minor, not affecting the root of the matter. It is settled that courts should address with caution evidence on identification to avoid cases of mistaken identity. To ensure that Page 17 of 23 identification is up to par, the court has overtime laid several factors to be considered in determining whether an assailant was properly identified. The earliest of these conditions were laid out in Waziri Amani vs. Republic (supra) whereby the Court stated: “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 properly 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.” It follows therefore that the source and intensity of light on their own are important factors in identification. This was well stated in Waryoba Elias vs. Republic (Criminal Appeal No.112 of 2020) [2023] TZCA 17314 TANZLII, whereby the Court of Appeal stated: “It is trite that except where identification is by voice, in visual and recognition identification light, is a critical prerequisite. Accordingly, the Court has been resolute regarding its source and intensity stressing their proof beyond reasonable doubt that Page 18 of 23 such light is bright enough to see and positively identify the assailant” In Issa s/o Mgara @ Shuka vs. Republic, Criminal Appeal No. 37 of 2005 (unreported), the Court of Appeal clarified the essence behind clarification of source and intensity of light. It stated: "In is our settled minds, we believe that it is not sufficient to make bare assertions that there was light at the scene of the crime. It is common knowledge that lamps be they electric bulbs, fluorescent tubes, hurricane lamps, wick lamps, lanterns etc. give out light with varying intensities. Definitely, light from a wick lamp cannot be compared with light from a pressure lamp or fluorescent tube. Hence the overriding need to give sufficient details on the intensity of the light and the size of the area illuminated.” From the evidence on record; both PW1 and PW3 stated that the area the incident took place, which was outside the bar, was illuminated by a bulb. PW1 did not state the kind of bulb but did state the light illuminated even beyond the area the incident took place. He stated: “Outside the bar was a bulb covering wide area up to the gate. Where the light was and where the accused and I were is just some steps the bulb lit past the place even further.” PW1’s statement is further corroborated by that of PW3 who also disclosed the bulb to be electric and illuminating the gate area and other surrounding areas. He stated: Page 19 of 23 “The fight arose around 11:00pm. At the gate there is electric bulb which is large with sufficient light to see anything around. It illuminated the gate area and walls aside. The two people fighting at the gate area and the light was above illuminating them.” Considering the testimony of PW1 and PW3 as quoted above, I am of the view that the source and intensity of light were clearly explained by PW1 and PW3 in their testimony. The appellant’s argument is thus without justification. With regard to the appellant’s appearance, the typed proceedings show that PW1 stated the appellant to have been in yellow- red Maasai sheet, grey trouser and white black rubber shoes, he maintained this stance in cross examination. On the other hand, PW3 identified the appellant to have been dressed like a militiaman. In cross examination he stated that the appellant was dressed in militia costume mixed. After critical scrutiny of the alleged contradictions between PW1 and PW3 and their testimonies as a whole, I agree with the appellant that the same are material and going to the root of the matter. It should be noted that for the appellant to be connected to the offence charged, he ought to have been properly identified at the crime scene. Though both, PW1 and PW2 stated to have known the appellant from before rendering it identification by recognition, the law has it that, even in recognition, cases of mistaken identity can happen. The court thus have to be cautious in dealing with matters of identification. See: Jumapili Msyete vs. Page 20 of 23 Republic (Criminal Appeal No. 110 of 2014) [2015] TZCA 234 (12 August 2015) TANZLII. In the premises, the contradiction between PW1 and PW3 as to how the appellant dressed is material. If the appellant was in a Maasai sheet, then PW3 would have easily recognised and remembered that fact as the said Maasai sheets are very common. It also should be noted that, as per the testimony of PW1, he (PW1) was already under the influence of alcohol, as such, his vision, particularly where there were shining lights, was impaired. I am more convinced that the victim (PW1) did not properly identify the appellant at the crime scene in consideration of the fact that he failed to mention the culprit at the earliest possible opportunity. PW1 stated that the offence occurred on 04.08.2023 and he went to the police station to obtain a PF3 at the very same date. PW4, on the other hand, testified to have been assigned the case file on 11.08.2023 and thereafter interrogated the victim, who was at the hospital. He said that it was at the interrogations when the victim mentioned the appellant as his assailant leading to him arresting the appellant. PW4’s testimony shows that the culprit was not known until when the victim mentioned the appellant during interrogations that took place after seven (7) days from the date of the incident. The victim claimed to have known the appellant from before the incident. I however, wonder why the victim failed to mention the appellant, whom he knew before, when he went to the police station to obtain the PF3. Page 21 of 23 The law is trite that mentioning the suspect at the earliest possible opportunity is an all-important assurance of the credibility of the witness and so is the vice versa when the suspect fails to mention the suspect at the earliest possible opportunity. See: Ahmed Said vs. Republic (Criminal Appeal No. 291 of 2015) [2016] TZCA 192 (17 November 2016) TANZLII; and Minani Evarist vs. Republic (Criminal Appeal No. 124 of 2007) [2012] TZCA 65 (16 February 2012) TANZLII. In the premises, I find incredible PW1’s testimony as to identification of the appellant. The last ground is on whether the prosecution proved the case beyond reasonable doubt. In proving the case, the prosecution’s duty is twofold, being; to prove the crime and to prove that the accused person is the culprit. This was well stated in Malik George Ngendakumana vs. Republic (Criminal Appeal 353 of 2014) [2015] TZCA 295 TANZLII, whereby the Court of Appeal stated: “The principal of law is that in criminal cases the duty of the prosecution is twofold. One, to prove that the offence was committed, and two, that the accused person is the one who committed it.” In the case at hand, particularly following my observation as hereinabove, I am of the settled view that the prosecution failed to discharge its duty in linking the appellant with the offence charged. The appellant was not clearly identified at the crime scene and the victim failed to mention him at the earliest opportunity despite claiming to know him from before. Page 22 of 23 As such, I find merit in the appeal and allow it accordingly. The trial court’s conviction and sentence are hereby quashed. The appellant is to be released forthwith from prison custody, unless held for some other lawful cause. Dated and delivered at Moshi on this 08th day of July, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 23 of 23