Criminal appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 20008 OF 2024 (Arising from the Judgement of the District Court of Mkuranga (Hon. K.P. Mrosso, SRM) in Criminal Case No. 444 of 2022 dated 7th November 2023) ________________________ MUSSA HAMIS NJEJA………….………………..……….. APPELLANT VERSUS REPUBLIC…………………………..…..………………...RESPONDENT JUDGEMENT Date of last order: 6th February 2025 Date of Judgement: 10th February 2025 MTEMBWA, J.: In the District Court of Mkuranga, the Appellant was arraigned for the offense of rape contrary to sections 130 (1) and (2) (b) and 131 (1) of the Penal Code, Cap. 16, R.E. 2022. It was alleged that on 2nd August 2022, around 14:00 hours, Kamegele – Vikindu Village within Mkuranga District in Coast Region, the Appellant had sexual intercourse with CBM (name withheld) without her consent. In this appeal, the victimized woman shall be referred to as “the victim” or “PW1”. 1 Briefly, on 2nd August 2022, the victim (PW1), a professional teacher, was on her way to Vikindu Teachers College to mark exams. As she was unfamiliar with the environment, she sought the Appellant's assistance while at Vikindu Madukani area. The Appellant volunteered to lead the way up to Vikindu Teachers College however, he had another plan. While on their way, he drove the victim to certain bushes, undressed her and inserted his male organ into her vagina without her consent. The victim raised the alarm, resulting in two women emerging from a pathway to offer help. By then, the Appellant had already disappeared from the scene area. On 17th March 2022, the victim identified the Appellant through an identification parade conducted by PW6. According to Police Form No. 3 (Exhibit P1), the victim’s labia minora had bruises, a sign of penetration. The Appellant resisted the charge on account that he was not the one who raped the victim. To prove him wrong, the prosecution paraded six (6) witnesses and tendered four (4) exhibits. The Appellant relied on his affirmed testimony and tendered no exhibit. Having evaluated the evidence adduced during hearing, the trial Court was satisfied that the Appellant committed the alleged crime and proceeded to convict him as charged. The trial Court then sentenced 2 the Appellant to serve thirty (30) years imprisonment and pay the victim the sum of Tanzanian Shillings 1,000,000/= as compensation. Still undaunted to demonstrate his innocence, the Appellant has laid before this Court the following grounds of appeal and I quote in verbatim; 1. That, the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on incredible visual identification. 2. That, the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on Exh. P4 (parade form) which was conduct contrary to PGO 232. 3. That, the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on Exh. P4 which contents were read out before being admitted as Exhibit. 4. That, the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on Exh. PI (caution statement) which was procured and admitted as exhibit contrary to law. 5. That, the earned trial magistrate grossly erred in both law and fact by convicting the appellant based on incredible, contradictory and uncorroborated evidence of prosecution witnesses. 6. That, the earned trial magistrate grossly erred in both law and fact by convicting the appellant based on a case that was not proved to the hilt. 3 When this matter came for orders on 21st August 2024, the Appellant appeared in person while Mr. Daudi Basaya, the learned State Attorney, represented the Respondent. By consent, the parties agreed to argue this Appeal by way of written submissions. However, it could appear the Appellant never served the submissions in chief to the Respondent on time. As a result, on 30th September 2024, I vacated my previous scheduling order and extended the time for the Respondent to file the reply submissions. Having reviewed the records, I am satisfied that the parties adhered to the agreed schedule. At the outset, the Appellant argued the grounds of appeal in groups by combining some of them and arguing them altogether. I will, therefore, discuss them in the same way and style the Appellant argued them. Kickstarting, the Appellant complained about incredible visual identification and unreliable or uncorroborated prosecution evidence. On visual identification, the Appellant argued that the witness failed to give the physical features of the person who committed the alleged offense of rape. The description of physical appearance would have helped the trial Court to assess whether the given descriptions fit the 4 morphological appearance of the Appellant. He alluded further that in every case in which the identification of the accused is an issue, the description of physical features must be given to avoid mistaken identity. Given that the rapist was a stranger to the victim, there was a need to provide descriptive features of the person alleged to have committed the offense. He cited the cases of Cosmas Chaula vs. Republic, Criminal Appeal No. 6 of 2010 (unreported) and Maulid Juma Bakari @ Damu Mbaya & Another vs. Republic, Criminal Appeal No. 58 of 2018 (unreported). The Appellant also pointed out the contradictions as revealed by prosecution evidence and resolved that the witnesses were not credible. He also referred this Court to pages 12 and 13 of the typed proceeding, where the victim testified that she raised an alarm and two women arrived to rescue her while the Appellant flew away. In contrast, the Appellant referred this Court to page 29 of the proceedings, where PW4 testified that having heard an alarm from the woman, he went closer to see what was happening. He then saw the victim, who told him that she was robbed. Her attire was wet around the buttocks. He referred to page 31 where PW5 testified that during the incident, the victim was strangled and later lost consciousness. 5 Having regained, she found herself in a bush and the accused was still with her. He undressed her pant and raped her while covering the victim's mouth with his hand. The victim again lost consciousness, and when she regained it, she managed to run to the nearest House and met Zakaria (PW4), who called other villagers. Based on that, the appellant argued that the prosecution witnesses were incredible and liars. Specifically, he submitted that the victim did not testify on whether she lost consciousness during the incident. Such evidence was brought into play by PW5. He cited the case of Jaribu Abdallah vs. Republic (2003) TLR 271, where it was observed that in matters of identification, it is not merely to look at the factors favoring accurate identification. Equally important is the credibility of witnesses. The Appellant also faulted the way and manner in which the identification parade was conducted and supervised by PW6. He contended that the same was in a serious contravention of PGO 232. He referred this Court to page 9 of the typed proceedings where PW1 testified that the Appellant had different attire during the identification parade contrary to the PGO No. 232 (20 (k). Based on that, he implored this Court to disregard or assign a little weight to Exhibit P4 6 (PF No. 186). The Appellant also vigorously attacked the caution statement (Exhibit P1). He contended that it was improperly procured and admitted contrary to the law. In addition, he submitted that it was involuntarily taken, and when PW2 sought to tender it, the appellant preferred an objection, resulting in an inquiry. During the inquiry, the impugned caution statement was not tendered for identification or an exhibit. The Appellant argued further that the caution statement was tendered when the Ruling on an inquiry was delivered, and PW2 tendered and read it over without being reminded to be under oath, contrary to section 198 of CPA. He referred this Court to page 23 of the proceedings. As to whether the prosecution case was proved beyond reasonable doubt, the Appellant contended that the medical officer (PW3) failed to tell which tool she used to examine the victim’s vagina to identify that she was raped. He referred this Court to pages 13 and 14 of the proceedings. He supported his argument by citing Sylvester Stephano vs. Republic, Criminal Appeal No. 527 of 2016 (unreported), where it was observed that an expert must furnish the court with necessary scientific criteria for testing the accuracy of his 7 conclusion to enable the court to form the independent judgment by applying those criteria to the facts proven in evidence. Based on the foregoing, the Appellant implored this Court to set aside the conviction and sentence meted against him. In response to the first ground of appeal, Mr. Daudi Basaya, the learned state attorney, refuted the Appellant’s argument that the trial Court grossly erred in both law and fact by convicting the Appellant based on incredible visual identification. He argued further that the identification by the victim was watertight enough to implicate the Appellant as the one who raped her. He referred to the testimony of the victim, who testified that she managed to identify the appellant during the incident as she was closer to him when they were walking toward Vikindu Teachers College. The rape incident took about 35 minutes, and the accused had a mark on his face. The explanations by the victim suffice to prove that there was no mistaken identity of the Appellant since the incident happened during the daytime. He referred this Court to pages 8 and 9 of the typed script of the Proceedings. He cited Waziri Amani vs. Republic (1980) TLR 250 and Raymond Francis vs. Republic (1994) TLR 100. Based on the cited case, the learned state attorney pointed out 8 the conditions for correct identification including: How long did the witness have the accused under observation? What was the estimated distance between the two? If the offense occurred at night, what kind of light existed and its intensity? Was the accused known to the witness before the incident? Did the witness have ample time to observe and take note of the accused without obstruction, such as an attack, threat, and the like, which may have interrupted the latter's concentration? In the end, he conceded to the very fact that each case must be determined by its own circumstances. The counsel repeatedly argued that the incident occurred during a daytime, and the victim managed to explain the ordeal of suffering from unconsented sexual intercourse; she also managed to demonstrate to the appellant that he had a mark on his face. The learned state attorney also reminded this Court of the everlasting cardinal principle of the law that the best evidence of sexual offense comes from the victim. He cited the case Selemani Makumba vs. Republic (2006) TLR 379. From the evidence adduced, the Appellant committed the offense against the victim, considering that the offense was committed in the daytime; therefore, there was no possibility of mistaken identity. He cited section 127 9 (6) of the Evidence Act, Cap. 6 R.E 2022. Submitting on the second and third grounds of appeal, the learned state attorney argued that section 60 of the CPA allows the Police officer in charge of a police station or any officer investigating an offense to hold an identification parade. It is provided under the Police General Order 232 that the officer below the Assistant Inspector rank should not be allowed to carry an identification parade. In the instant case, there is no dispute that the identification parade was conducted by PW6, a police officer of the rank of Inspector, hence qualified by the law. Based on the testimony of PW6, the learned state attorney refuted the argument that the trial Magistrate grossly erred in both law and facts by convicting the appellant based on Exhibit P4 (Parade form), which was conducted contrary to Police General Order (PGO) 232. He implored this Court to disregard the second and third grounds of appeal. Regarding the fourth ground of appeal, the learned state attorney refuted the Appellant’s argument that Exhibit PI (the caution statement) was procured and admitted improperly. He contended further that sections 57 and 58 of the CPA provide for the ways of recording an interview of a suspect in that the interviewing officer 10 must, among others, introduce himself and his title; accord a suspect his rights of giving his statement voluntarily in the presence of his relative or advocate or to remain silence, to tell the suspect the offense of which he is suspected to commit, to tell him the consequence of his statement that it can be used against him in Court, to mention but few. The learned state attorney referred to the testimony of PW2, who testified that on 14th September 2022 at 18:00 hours, while at Vikindu Police Post, he was assigned by Insp. Adam to interview the Appellant. He took the accused from DC Mathias and headed to the interrogation room. PW2 introduced himself to the Appellant and informed him of the allegations he was facing. He explained the rights he is entitled to, including the right to have a relative/advocate or friend during interrogation and the right to remain silent or give a statement that would be used against him in court. PW2 then recorded the statement of the appellant in the presence of his mother-in-law, whom the Appellant requested her presence. He started to record the statement from 18:00 to 18:25 hours. Thereafter, the appellant signed the declaration, and the PW2 countersigned. He referred this Court to pages 11 and 12 of the proceedings. 11 The learned state attorney conceded that PW2 was not reminded of his oath when tendering the Caution Statement (Exhibit P1). However, he argued that the anomaly is curable under section 388 of the CPA. He beseeched this Court to disregard the fourth ground of appeal. In response to the fifth ground of appeal, the learned state attorney submitted that the Appellant was convicted based on the prosecution witnesses' credible, consistent, and corroborated evidence. He added that the contradictions, if any, are minor due to the witnesses' memory loss. Whatever circumstance, the contradictions pointed out by the Appellant are minor and can be overlooked. He cited the cases of Marmo slo Slaa Hofu and 3 Others vs. Republic, Criminal Appeal No. 246 of 2011(Unreported) and Gitabeka Giyaya vs. Republic, Criminal Appeal No. 44 of 2020) [2022] TZCA 830 (28 December 2022). He implored this Court to dismiss the fifth ground of appeal. The learned counsel considered the sixth ground of appeal unmerited. On that, he argued that the prosecution managed to prove unconsented sexual intercourse. The evidence of penetration was given by PWI (the victim), who testified how the Appellant undressed 12 her and inserted his male organ into the victim’s vagina. During the incident, the victim was able to identify the Appellant as she was close to him even when they were walking towards Vikindu Teachers College. She was also able to identify the Appellant during the identification parade. Her testimony was corroborated by PW3, a medical doctor who examined her and prepared the PF3 (exhibit P2). He referred this Court to page 26 of the trial Court proceedings. Since the sexual intercourse involved adult persons, the prosecution was only required to prove penetration and lack of consent. He cited the case of July Joseph vs. Republic, Criminal Appeal No. 226 of 2021 (unreported). Down to the end, the learned counsel reminded this Court of the appellant's previous conviction in Criminal Case No. 511 of 2022, where he was convicted and sentenced for the same offense. He implored this Court to dismiss the petition of appeal. Rejoining to the first ground of appeal, the Appellant insisted that the evidence of visual identification against the Appellant was insufficient proof beyond reasonable doubt and incredibly improbable, untruthful, and unreliable to warrant the appellant's conviction as charged. He referred this Court to Pages 15, 16, and 31 of the typed 13 proceedings. He insisted further that the prosecution witnesses were not credible due to contradictory evidence on material points. He recited the case of Rajabu Abdalla (supra). The Appellant insisted further that PW1's description of the Appellant having a mark on his face is too general and could fit anyone. She did not even clearly state the position of the mark on the Appellant’s face. The victim was obliged to describe the Appellant, including his appearance, color, and attire worn on a fateful day. He recited the case of Cosmas Chaula (supra). Rejoining the second ground of appeal, the Appellant repetitively argued that the identification parade was conducted contrary to Police General Order (PGO) No. 232. He argued that the Appellant was not informed of his right contrary to PGO 232 (d) as he was not placed among the people of the same age, height and general appearance and some class of life; he was not asked whether or not he was satisfied with the way the parade was conducted. He recited the case of Francis Majaliwa (supra). Regarding the third ground of appeal, the Appellant rejoined that PW2 was not reminded of his oath before tendering the caution statement. Such an anomaly cannot be cured under section 388 of 14 the CPA. He cited the case of Abas Kondo Cede vs. Republic, Criminal Appeal No. 472 of 2017, where it was observed that a witness who is called to testify for either party must be sworn or affirmed in view of section 198(1) of the CPA. And if not, the resultant effect is to expunge the evidence. He reiterated that the caution statement was not tendered for identification during an inquiry. Lastly, the Appellant insisted that the prosecution case was not proven to meet the required standards of the law. Based on the foregoing and cited authorities, the Appellant implored this Court to allow the appeal and set aside the conviction and sentence meted against him. Having dispassionately considered the rival arguments by the parties, the question would be whether the charge of rape contrary to sections 130 (1) and (2) (b) and 131 (1) of the Penal Code (supra) was proved beyond reasonable doubt. In Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a criminal case, the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt. This is in consonant with section 3(2) (a) of the Evidence Act (supra). It follows, 15 therefore, that a person is found guilty and convicted of a criminal offense because of the strength of the prosecution evidence against him, which establishes his guilt beyond reasonable doubt (see also John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296). In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, where it was observed that the first appellate Court must subject the entire evidence on record to a fresh re-evaluation to arrive at a decision that may coincide with the trial Court or may be different altogether. The Appellant complained about incredible visual identification and unreliable or uncorroborated prosecution evidence. He argued further that the witness failed to give the physical features of the person who committed the alleged offense of rape. On his part, the learned state attorney submitted that the evidence on visual identification was watertight and eliminated all possibilities of mistaken identity. According to the PW1 (victim), while on the way to Vikindu Teachers College, the Appellant drove her to certain bushes, 16 undressed her and inserted his male organ into her vagina without her consent. The victim raised the alarm, and as a result, two women emerged from a pathway to offer help. PW4 also heard the alarm and went closer to the area of the scene only to see the victim in wet attire. On inquiry, the victim told him that she was robbed. I reviewed the victim's testimony, but unfortunately, I could not find any evidence of when the offense was committed. All the time, she kept telling about what happened on the way to Vikindu Teachers College. The two women who appeared at the area of the scene, unfortunately, were not called to testify as witnesses. Even PW4, who happened to see the victim soon after the incident, did not testify on the time when the offense was committed. According to the medical officer (PW3), the victim was brought to her for examination on 2nd August 2022 at 16:00 hours. She did not testify to have known the time when the victim was raped. Exhibit P2 (PF3) narrates that the victim was raped on the evening of 2nd August 2022. Only PW5 (the investigator) testified on page 31 of the typed proceedings that the incident happened on 2nd August 2022 during the daytime. He did not, however, disclose the source of such information because he was not present at the area of the scene. Very surprisingly, no one testified on 17 whether the Appellant and the victim knew each other before the day of the incident. With respect to the learned state attorney, the evidence of when the incident happened is lacking. Since the proof of visual identification is at issue, the victim, who is an adult, expectedly, could have testified on the time when she was raped for the Court to assess the degree of accuracy to eliminate all possibilities of mistaken identity. It was not enough only to state the date when the incident happened. To eliminate all possibilities of mistaken identity, the Court should consider whether the Appellant was correctly identified at the area of the scene. This will take us to the criteria underscored in the famous case of Waziri Amani vs. Republic (1980) TLR 250, where the Court 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 18 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. (emphasis mine) 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 factors has been expanded. In Jaribu Abdallah vs. Republic (supra), 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 19 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. From the available records, there is no evidence of whether the incident happened during the day or night, whether there was good or poor lighting at the scene, or whether the witness knew or had seen the Appellant (accused) before. The victim (PW1) or PW4 could have brought such evidence into play. More so, the Appellant complained that the victim did not describe him before the identification parade. He added further that the description that the Appellant had a mark on his face was too general and could fit anyone. In his view, the description relating to the height, color, and attire was necessary to eliminate all possibilities of mistaken identity. On his part, the learned state attorney insisted that the description that the Appellant had a mark on his face was enough. 20 Indeed, as correctly alluded to by the Appellant, the description of the Appellant as the one who committed the offense is insufficient. I also agree with him on the assertion that the description of the Appellant having a mark on his face is, unfortunately, too general and could fit anyone around. Since the victim walked with the Appellant for some time on the passway to Vikindu Teachers College, and since the rape incident took about 35 minutes, she was in a better position to give more details in a bid to describe the Appellant, including his height, color, and attire, to mention but few. In the absence of such description and the like, it can not be concluded with certainty that the visual identification was watertight. Considering the available evidence, I am satisfied that the Appellant was not correctly identified at the area of the scene. Having said so, I don’t see the reason to look into the propriety of the identification parade as the same is not substantive evidence but only admitted for collateral purposes (see Ahmad Hassan Marwa vs. Republic, Criminal Appeal No. 264 of 2005). Since I have observed that the Accused was not correctly identified, it follows that the identification parade was of no effect. In that stance, I find it opt to revisit the case of Flano Alphonce Masalu @ Singu vs 21 Republic, Criminal Appeal 366 of 2018, where it was observed that; We also recall the evidence that the appellants were purportedly identified at several identification parades and that extracts from the identification parade register were admitted in evidence (Exhibits P.5 and P.6). Be that as it may, in view of our above conclusion that the visual evidence was insufficient, we need not deal with the grounds of appeal assailing the propriety of the identification parade and the validity of the parade register extracts. An identification parade presupposes that the person to be identified on it was identified at the scene of the crime, which is not the case in the instant case. (emphasis mine) That said, the first and second grounds of appeal are meritorious, and I proceed to allow them. Having so resolved, the next question is whether the Appellant can be convicted and ultimately sentenced based on his caution statement, which was recorded by PW2. On this, the Appellant complained that the caution statement was improperly procured and illegally tendered. He faulted the way an inquiry was conducted to the extent of not tendering the caution statement for identification. Close to that, he faulted the tendering without reminding the witness of his oath, contrary to section 198 of the CPA. On his part, the learned 22 state attorney conceded to the very fact that the witness was not reminded of his oath before tendering the caution statement. He, however, considered the anomaly curable under section 388 of CPA. As a general rule, confessions of guilt are admissible, though they must be carefully received. They are to be considered in accordance with sections 27 (1) and 31 of the Evidence Act (see John Peter Shayo and 2 Others vs. Republic (1998) TLR 198 quoted in Tumaini Daudi Ikera vs. Republic, Criminal Appeal No. 158 of 2009 (unreported). That means even where such a confession exists, the trial Court should still go the extra mile to determine whether the confession was voluntarily given. In this case, PW2 recorded the appellant's caution statement. When he thought to tender it, the appellant preferred an objection, thereby leading to an inquiry. At the conclusion of an inquiry, the caution statement was received in evidence and marked as Exhibit P1. The Appellant faulted how an inquiry was conducted, including how the caution statement was received in evidence. He complained that the witness was not reminded of his oath before tendering the exhibit, contrary to section 198 of CPA. In response, the learned state attorney considered the fault curable under section 388 of CPA. 23 As the Appellant correctly alluded to, the caution statement was not tendered for identification during an inquiry. It was only tendered when the Ruling was delivered. The question would be whether it was correctly tendered in evidence. That will be the next chapter for discussion. According to available records, on 15th June 2023, the trial Magistrate delivered a Ruling on an inquiry. In the end, he concluded as follows, and I quote in verbatim; The objections raised by the accused person are hereby overruled, caution statement of the accused person is admitted and marked as exhibit P1. The contents of Exhibit P1 are hereby read to the accused by PW2. K.P. MROSSO SENIOR RESIDENT MAGISTRATE 15/6/2023 XX BY PP CONTINUES PW2 that is all. From the quoted passage, it is clear that the caution statement was tendered as an exhibit and marked as P1 when the ruling was delivered. It could appear that PW2 also read it over soon after it was admitted as an exhibit. To me, it sounds incorrect and unprocedural. The correct procedure was to resume the trial and call upon PW2 to tender and read it over. It must be noted that the trial Court must 24 remind the witness that he is still under oath. Such procedures were underscored in the case of Seleman Abdallah and 2 Others vs. Republic, Criminal Appeal No. 384 of 2008, where the Court quoted with approval the case of Rashid & Another vs. Republic (1969) EA 138 and observed as follows; The procedure entails the following:- (i) When an objection is raised as to the voluntariness of the statement intended to be tendered as an exhibit, the trial court must stay the proceedings. (ii) The trial court should commence a new trial from where the main proceedings were stayed and call upon the prosecutor to adduce evidence in respect of that aspect of voluntariness. The witnesses must be sworn or affirmed as mandated by section 198 of the Criminal Procedure Act, Cap 20. (iii) Whenever a prosecution witness finishes his evidence the accused or his advocate should be given opportunity to ask questions. (iv) Then the prosecution to re-examine its witness. (v) When all witnesses had testified, the prosecution shall close its case. (vi) Then the court is to call upon the accused to give his evidence and call witnesses, if any. They should be sworn or affirmed as in the prosecution side. (vii) Whenever a witness finishes, the prosecution to be given opportunity to ask questions. 25 (viii) The accused or his advocate to be given opportunity to reexamine his witnesses. (ix) After all witnesses have testified, the accused or his advocate should close his case. (x) Then a Ruling to follow. (xi) In case the court finds out that the statement was voluntarily made (after reading the Ruling) then the court should resume the proceedings by reminding the witness who was testifying before the proceedings were stayed that he is still on oath and should allow him to tender the statement as an exhibit. The court should accept and mark it as an exhibit. The contents should then be read in court. (xii) In case the court find out that the statement was not made voluntarily, it should reject it. (emphasis mine) In this case, the caution statement was tendered when the Ruling of its admissibility was delivered. PW2 then proceeded to read it out without resuming the trial. With respect to the learned state attorney, that was not correct. The trial Court could have first resumed the trial and then call upon PW2 to tender it. Having tendered it, PW2 was then at liberty to read it over. Earlier on, it must be tendered for identification during an inquiry. As intimated above, it was mandatory that PW2 be reminded that he was still under oath. That alone offended section 198(1) of CPA. In Janeroza d/o Petro vs 26 Republic (Criminal Appeal No. 269 of 2016) [2016] TZCA 249 (24 October 2016), the Court observed that; We wish to point out that a trial within a trial is a separate trial from the main trial as such the procedure of conducting trials should be observed. One of such condition is that the evidence of any witness must be given on oath or affirmation as provided under Section 198 (1) of the CPA. From what I have tried to endeavor herein above, the caution statement (Exhibit P1) was improperly tendered. The correct remedy, therefore, is to expunge it from the records. However, I am mindful of the everlasting principle that, having disregarded the caution statement, the correct procedure is to consider the oral testimony of the police officer who recorded it. That is what was underscored in the case of Shabani Ng'ombe @ Kenyeka vs. Republic (Criminal Appeal No. 454 of 2016) [2019] TZCA 607 (3rd December 2019), where the Court observed as follows; At any rate, even if we were to agree with the appellant that Exhibit PI was irregularly tendered and admitted, we would only discard it from the record. However, that will leave intact the oral testimony of PW4, the author of the PF3 guided by our previous decision in The Director of Public Prosecutions vs. Erasto Kibwana and 2 Others, Criminal Appeal No. 576 of 2016 relied upon subsequently in Thomas 27 Robert Shayo vs. The Republic, Criminal Appeal No. 409 of 2016 (both unreported). Surprisingly, however, PW2 never testified on what the Appellant confessed before him, if any. In such circumstances, there is nothing to consider. For future guidance, a Police officer who records the caution statement of an Accused must also testify orally on what was confessed before him. The oral testimony, therefore, poses as a backup in case the caution statement is rejected. That said, the second and third grounds of appeal are allowed. Since I have already concluded that the Appellant was not correctly identified at the area of the scene and having expunged the caution statement, I see no reason to look into other grounds of appeal. I see nothing remained to implicate the Appellant. In any case, this Appeal is meritorious, and I proceed to allow it. To that end, this Appeal is allowed. The conviction and sentence meted against the Appellant are hereby set aside. I order that the Appellant be released immediately from custody unless held for other lawful purposes. I order accordingly. Right of appeal fully explained. 28 DATED at DAR ES SALAAM this 10th February 2025. H.S. MTEMBWA JUDGE 29