HAMIS MOHAMED LUVUMBAGU VS THE REPUBLIC 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. 21135 OF 2024 (Arising from Criminal Case No. 100 of 2023 in the District Court of Bagamoyo) HAMIS MOHAMED LUVUMBAGU…………………………APPELLANT VERSUS THE REPUBLIC………………………………………………. RESPONDENT JUDGMENT Date of last order: 10/02/2025 Date of judgment: 10/02/2025 A.A. MBAGWA, J. This is an appeal against the conviction and sentence of the trial District Court of Bagamoyo. The appellant, Hamis Mohamed Luvumbagu was charged, prosecuted, and ultimately convicted of rape contrary to Section 130 (1)(a) & (b) of the Penal Code [Cap. 16 R.E. 2022]. At the outset, it is worthwhile to remark that in terms of the Chief Justice 1 Circular No. 2 of 2025 and the purposes of concealing the identity of the victim, the victim shall be referred to as MR or PW3. In the particulars of offence, it was alleged that Hamis Mohamed Luvumbagu (the appellant) on the 30th day of April 2023 at day time at Msata area within Bagamoyo District in Coast Region had carnal knowledge of MR, a woman of 70 years old without her consent. The appellant pleaded not guilty to the offence as such, the matter went through a full trial. In a bid to prove the charge, the prosecution marshaled five (5) witnesses and one documentary exhibit to wit a PF3 (exhibit P1). The prosecution witnesses who were paraded are Hamis Ahmed Hamis (PW1), Hamis Rajabu Farhan (PW2), the victim (PW3), Winfrida Didas Clemence (PW4) and Dotnata (PW5). Briefly stated, the prosecution account was to the effect that the appellant, Hamis Mohamed Luvumbagu on 30th April 2023 at midnight at Msata area within Bagamoyo District had sexual intercourse with the victim without her consent. PW3 (the victim) stated that on the material night, the assailant 2 entered her house, took her outside the house, and grabbed her on the farm where he forcefully had sexual intercourse with the victim. It is on record that the victim did not identify her assailant. PW3 screamed for help as a consequence, the village chairman called the militiaman (PW2) and instructed him to rush to the crime scene. PW2 quickly went to the crime scene and found the appellant having sex with the victim. It was PW2’s evidence that, on seeing him, the appellant took at his heels. PW2 pursued the appellant and managed to arrest him shortly afterward. Winfrida Didas Clemence (PW4) who introduced herself as a militiawoman testified that PW2 went to her shop looking for the appellant. PW4 stated that after PW2 had described the culprit, she identified him to be the appellant. Thus, they arrested the appellant at Edward Bar while the appellant was trying to escape. The prosecution side further contended that the victim was submitted to Msata Health Centre for medical services. Hamis Ahmed Hamis (PW1) attended her and observed that she was penetrated by a blunt object. In the 3 end, PW1 recorded his medical findings in the PF3 which he tendered in evidence, and the same was admitted as exhibit P1. In contrast, the appellant vehemently denied the accusations. He testified that he had grudges against PW2 hence he supposed that PW2 was behind his victimization. The appellant expounded that on the 29th day of April 2023, PW2 went to the appellant’s vending venue to buy chips. He then gave the appellant a ten thousand shilling note but the appellant did not have a change. He thus told PW2 to be patient so that he could look for a change. However, PW2 did not accept the appellant’s proposal hence they started fighting. It was, therefore, the appellant’s defence that he was implicated in this case due to personal issues between him and Hamis Rajab Farhani (PW2). Having heard both parties, the trial Magistrate (Hon. Samera Suleimani SRM) was inclined that the charge against the appellant was proved beyond a reasonable doubt. She consequently convicted him of rape and sentenced him to thirty (30) year imprisonment accordingly. 4 Aggrieved with both conviction and sentence, the appellant approached this Court armed with four grounds of appeal as follows; 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 evidence of prosecution while intensity of light and position of illumination, and point of confrontation was not mentioned. 3. That, the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on incredible, untruthful, contradictory, tenuous, and uncorroborated evidence of prosecution witnesses. 4. That the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on a case that was not proved to the hilt. When the matter was called on, the appellant appeared in person whilst the respondent/ Republic was represented by Ms.Gladness Mchami, the learned 5 Senior State Attorney. At the instance of the appellant, this Court granted a leave to dispose of the appeal by way of written submissions. In his written submission, the appellant combined all the grounds of appeal and argued them conjointly. He lamented that he was wrongly convicted based on unreliable visual identification evidence. He strongly assailed the evidence of PW2 and PW4 saying that they did not provide or describe the favourable conditions for proper identification. He stressed that PW2, PW3, and PW4 failed to describe the intensity of light which aided them in identifying the appellant. On the respondent’s side, Ms. Neema Kwayu, the learned State Attorney supported both conviction and sentence. She was opined that the appellant’s conviction was rightly entered. The learned State Attorney forcefully submitted that the testimonies of PW2 and PW4 were truthful and therefore credible enough to ground the conviction. She invited the Court to apply the position taken by the Court of Appeal in the case of Goodluck Kyando vs Republic [2006] TLR 363 concerning the credibility of witnesses. She thus urged the Court to uphold both conviction and sentence. 6 As I commence the determination of this appeal I deem it appropriate to echo the settled position that the first appellate Court is entitled to reevaluate the evidence and, where necessary, arrive at its own findings. See the cases of The Registered Trustees of Joy In the Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017, CAT at Kigoma, and Emmanuel Mrefu @ Bilinge vs the Republic, Criminal Appeal No. 271 of 2006, CAT at Dodoma. Alive to this position, I have thoroughly reviewed and scrutinized the evidence adduced before the trial Court. Having canvassed the appellant’s complaints and the rival submissions, the pivotal point for the determination of this appeal is whether the prosecution evidence sufficiently proved the charged offence. According to the evidence on record, it is undisputed that the victim (PW3) was raped in the sense that she was penetrated contrary to her consent. This is particularly established through the evidence of the victim (PW3), PW1 (The clinical officer), and PF3 (exhibit P1). The pertinent question that considerably engaged my mind is whether it is the appellant who perpetrated the alleged conduct. The victim (PW3) was 7 very clear that she did not identify her assailant nor at any point did she attempt to describe the appearance of the culprit. Thus, the only evidence incriminating the appellant came from PW2 and PW4. PW2 testified that he was called by the village chairman and instructed to go to the scene of the crime (at Msakamali area). Thus, he went there and found the appellant raping the victim but on seeing him, the appellant hastily ran away. PW2 stated that he identified the appellant but he did not bother to tell the Court how he identified him such as by mentioning the attire he wore on the material day. I should pause here and register my uncertainties. It is inconceivable how long the alleged act of raping lasted in such a way that PW2 was called by the village chairman, moved from where he was up to the crime scene, and found the appellant in flagrante delicto. Further, the evidence is silent on how the alleged village chairman who purportedly informed PW2 got to know about the incident. To crown it all, initially, PW4 who introduced herself as a militiawoman and a liquor seller testified that PW2 came to her shop looking for the assailant and after describing him PW4 confirmed that it was the appellant. Surprisingly, during cross-examination, 8 PW4 testified that she saw the appellant at the crime scene. Admittedly, PW4’s evidence is inconsistent and self-defeating. In addition, the whole prosecution version was to the effect that the alleged crime was committed at midnight whereas in the charge under the particulars of offence it was contended that the offence was committed during the day time. This discrepancy further adds salt to a fresh wound in the prosecution case and dents the credibility of PW2 and PW4. Having strenuously analysed the evidence as hereinabove indicated, I am of the considered opinion that the prosecution evidence did not establish the appellant’s guilt to the hilt. Had the trial Magistrate properly evaluated the evidence, she would not have arrived at the decision she made. In the upshot, I find merits in this appeal and therefore allow it. Consequently, I quash the conviction and set aside the sentence imposed by the trial Court. The appellant should be immediately released from custody unless he is continually held for other lawful purposes. It is so ordered. 9 The right of appeal is explained. Dated at Dar es Salaam this 10th day of February 2025. A.A. Mbagwa JUDGE 10/02/2025 Court: The judgment has been delivered in the presence of Gladness Mchami (SSA) for the respondent, and the appellant on this 10th day of February 2025. A.A. Mbagwa JUDGE 10/02/2025 10