Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 1771 OF 2025 (Arising from the decision of the Resident Magistrate Court of Lindi at Lindi in Criminal Case No. 10546 of2024) JOHN SWAKII FOCUS.......................................................APPELLANT VERSUS THE REPUBLIC............................................................ RESPONDENT JUDGMENT lffh February & lCFh March, 2025 MPAZE, J.: John Swakii Focus the appellant herein, was not amused with the conviction and sentence of 15 years imprisonment for the offence of attempted rape contrary to section 132(1) and 2(a) of the Penal Code [Cap 16 RE 2022] (the Penal Code), imposed by the Resident Magistrate Court of Lindi at Lindi in Criminal Case No. 000010546 of 2024. Hence, he preferred this appeal. The conviction and sentence arose from the charge alleging that, on 3rd April, 2024 at Tulieni Street within Lindi Municipality and Lindi Region, the appellant, by means of threats, attempted to have carnal knowledge of i a woman without her consent an allegation he denied. For the sake of disguising her identity I shall henceforth refer to her as the victim or PW1. At the trial, the prosecution paraded four witnesses namely; the victim (PW1), Samweli Mwandikwa @Munga (PW2), Salumu Juma @Muba (PW3), and WP7348 CPL Hasaka (PW4). They also tendered 1 physical exhibit, a t- shirt (Exhibit Pl) and 2 documentary exhibits, PF3 (Exhibit P2) and a sketch map (Exhibit P3). On the other side, the appellant was the sole defence witness. The facts of the case, as gleaned from the trial court records, unfold as follows; On 3rd April 2024, at approximately midnight, PW1 was in her bedroom when she saw someone holding a torch and carrying a brick. According to PW1, she also took her torch and followed the source of the light, only to discover that the intruder had already broken the door and entered her house. She managed to shine her torch on the person and identified him. She further stated that the torch she was using was bright enough, allowing her to see the intruder clearly. 2 PW1 claimed that the accused attacked her and attempted to sexually assault her. During the struggle, her khanga fell, leaving her naked. She further alleged that the accused tried to force himself on her, but she fought back by grabbing and squeezing his genitals. In pain, the accused allegedly slapped her. Amid the struggle, PW1 managed to grab a machete and struck the accused on the head, causing him to flee while bleeding, leaving behind his t-shirt. After the attack, PW1 went to her neighbour, PW2, and informed him of the incident. Upon receiving the information, PW2 accompanied PW1 back to her house, where he found a torn and dirty t-shirt with zebra stripes lying in the living room. He also observed bloodstains and footprints, indicating a struggle had taken place. PW2 further stated that he later informed PWl's grandson, named Said (who is not a witness in this case). The following day, Said took PW1 to the village chairman, and she was later taken to the hospital for medical examination. At the hospital, PW1 was attended to and examined by PW3, who confirmed that she was experiencing neck pain, which she attributed to being choked during the attack. PW3 completed a PF3, documenting that PW1 had 3 indeed been choked, leading to her pain. The PF3 was subsequently tendered and admitted as Exhibit P2. The investigation of this case was conducted by PW4, who explained the steps he took in his investigation. He stated that through the victim's statement, he identified the people mentioned in connection with the crime. He proceeded with further inquiries, visited PWl's house, recovered the t- shirt allegedly left behind by the appellant , and seized it as Exhibit. Additionally, he drew a sketch map of the crime scene. The t-shirt was admitted as Exhibit Pl, while the sketch map was admitted as Exhibit P3. Based on his investigation, PW4 concluded that the appellant was the one who had attempted to rape PW1. His findings were supported by the victim's testimony, the t-shirt recovered from the scene, the PF3, and the witness statements. In his defence, the appellant denied the allegation levelled against him by the prosecution claiming that he was just defamed by the people. At the end of the trial, the trial court was satisfied that the prosecution proved the offence against the appellant beyond reasonable doubt and proceeded to convict and sentence the appellant as stated herein above. 4 Before this court, the appellant lodged six grounds of appeal which can conveniently be condensed into three main complaints as follows; 1. That, the charge was defective. 2. That the trial court failed to consider defence case 3. That, the prosecution case was not proved beyond a reasonable doubt. At the hearing, the appellant appeared in person unrepresented while the respondent Republic enjoyed the service of Mr. Edson Lawrence Mwapili, the learned State Attorney. When he was given the floor to submit in support of his appeal, the appellant opted for the State Attorney to submit first and reserved his right to rejoin, if necessary. Regarding the complaint that the charge was defective, Mr. Mwapili contended that the charge against the appellant complied with section 135 of the Criminal Procedure Act [Cap 20 R.E 2022] (the CPA). He argued that the cited section for attempted rape was proper and that the particulars of the offence adequately outlined all essential elements, including the element of threat, which is crucial in such cases, as emphasized in Musa Mwaikunda v. R [2006] TLR 387 at 392. He therefore asked the court to dismiss this ground of appeal for lack of merit. 5 In challenging the complaint that the trial court failed to consider the appellant defence, Mr. Mwapili cited the case of Stephen John Rutakikirwa v. R, Criminal Appeal No. 78 of 2008 (unreported), where it was emphasized that a trial court must consider both the prosecution and defence evidence before reaching a verdict. He then argued that, upon carefully examining the trial court's judgment, particularly from pages 4 to 6, it shows the trial magistrate properly evaluated, analyzed, and considered the evidence from both sides. Ultimately, the court found that the appellant's defence did not create any doubt in the prosecution's case. However, Mr. Mwapili was of the view should this court find any flaw in that evaluation, it has the power, as the first appellate court, to reassess the evidence, step into the shoes of the trial court, and reach its own independent conclusion. On the complaint that the prosecution failed to prove its case beyond reasonable doubt, Mr. Mwapili asserted that the prosecution had sufficiently discharged its burden of proof. 6 He referred to the settled legal position that in sexual offence cases, the best evidence comes from the victim. Applying this principle, he argued that PW1, an 80-year-old woman, provided a clear and credible account of the incident. She testified that the offence occurred at night and that she identified the appellant using torchlight, which provided sufficient illumination. Additionally, PW1 stated that the appellant was not a stranger to her, as she had known him for a long time and often saw him passing by her house on his way to work. Mr. Mwapili further contended that PW1 promptly reported the incident to PW2, reinforcing the credibility and reliability of her testimony. Her account was also corroborated by PW2 and PW4, strengthening the prosecution's case. Addressing the appellant's argument that the prosecution failed to prove ownership of the T-shirt found inside PWl's house, he argued that proving ownership was not the prosecution's duty. Instead, the prosecution only needed to establish that the appellant attempted to rape PW1, a burden he insisted had been fully discharged. 7 In conclusion, he contended that the prosecution had proved its case beyond reasonable doubt and urged the court to dismiss the appeal in its entirety for lack of merit. The appellant had nothing to rejoin, apart from requesting his ground of appeal be considered. In determining this appeal, I have carefully considered the submissions of the State Attorney, the grounds of appeal, the evidence on record, and the charge sheet. I will begin by addressing the complaint regarding the alleged defect in the charge sheet. However, the appellant did not specify the exact nature of the defect. On the other hand, the State Attorney asserted that the charge was properly drafted. A criminal case cannot exist in court without a charge sheet. It is an essential document in criminal proceedings, often described as the heart, brain, and blood of criminal justice, as it ensures a fair trial. The charge sheet informs the accused of the nature of the accusation, allowing him to adequately prepare his defence. Additionally, it notifies the trial court of the subject matter of the case, enabling the court to determine its jurisdiction and the appropriate 8 procedures to apply during the trial. See Francis Fabian @ Emmanuel v. R_(Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023) and Silivanus Nyaululi @ Musa v. R (Criminal Appeal No. 615 of 2021) [2025] TZCA 66 (24 February 2025). The mode and format for framing a charge sheet are governed by sections 132 and 135 (a) (ii) of the CPA. A charge sheet must clearly state the specific offence, with a reference to the correct section of law creating the offence, and include the particulars of the offence that state all the essential elements required to establish the charge. See Mohamed Juma v. R (Criminal Appeal No. 434 of 2020) [2023] TZCA 17648 (25 September 2023). To understand the appellant's complaint, it is vital to examine the charge sheet to determine whether it is defective. The following is the charge laid against the appellant; 'STA TEMENT OF OFFENCE A TTEMPTED RAPE, contrary to Sections 132(1) and (2) (a) ofthe Penal Code [Cap 16 R.E2022]. 9 PARTICULARS OF OFFENCE JOHN SWAKII @FOKASI, on 3rd day of April, 2024, at Tulieni Street within the Municipal and Lindi Region, through threating did attempt to have carnal knowledge of one AMINA HASSAN @MKAUJA without her consent.' From the charge sheet above, the appellant was charged with the offence of attempted rape, which is created under sections 132(1) and 2(a) of the Penal Code. The particulars of the offence were clear and comprehensible, and they adequately established the essential elements of the offence, including the element of threatening, which is a crucial ingredient in the offence of attempted rape, as correctly pointed out by the State Attorney. Therefore, based on the essential requirements for framing a charge, I find that the appellant's complaint is unfounded. Regarding the complaint that the trial court failed to consider the defence case, a close examination of the trial court's judgment reveals that the appellant's defence was, in fact, considered. However, it was found insufficient to cast doubt on the prosecution's case and was ultimately rejected. Therefore, this complaint is entirely without merit. 10 Turning to the complaint that the case was not proved beyond a reasonable doubt, the appellant was charged under section 132(1) and (2)(a) of the Penal Code, which provides; '132.-(1) Any person who attempts to commit rape commits the offence of attempted rape, and except for the cases specified in subsection (3) is liable upon conviction to imprisonment for life, and in any case shall be liable to imprisonment for not less than thirty years with or without corporal punishment. (2) A person attempts to commit rape if, with the intent to procure prohibited sexual intercourse with any girt or woman, he manifests his intention by- (a) threatening the girt or woman for sexual purposes; (b) N/A (c) N/A (d) N/A' From the above provision, for a conviction to be secured, the prosecution must prove that the accused intended to procure prohibited sexual intercourse with a girl or woman and that this intention was manifested through threats for sexual purposes. ii In Joseph Paul @ Alex Makua v, R (Criminal Appeal 342 of 2019) [2020] TZCA 1869, the Court of Appeal emphasized that attempted rape occurs when an offender's intention to commit rape is frustrated before completion. In this case, although the charge sheet did not specify the exact time of the incident, PW1 testified that it happened at night when an intruder broke into her house, knocked her down, and expressed his intent to have sexual intercourse with her. As she resisted, her khanga fell, and the assailant attempted to insert his penis into her vagina. However, she managed to squeeze him, took a machete, and cut his head, forcing him to flee, leaving behind a T-shirt. PW2 corroborated PWl's account, testifying that PW1 arrived at her house in distress, claiming someone had attempted to rape her. Upon visiting the scene, PW2 found the T-shirt and blood on the floor. Additionally, PW3, who examined PW1, confirmed she had neck pain from being grabbed the findings which he filled in the PF3. Based on the evidence of PW1, PW2, and PW3, along with the PF3, it is evident that an attempted rape occurred, as the assailant took substantial 12 steps toward committing the offence before being thwarted. The remaining issue is who was the perpetrator of the alleged offence. I have pondered this question, especially considering how the evidence was presented, which indicates that the offence occurred at night. In this situation, it is essential to thoroughly determine whether the appellant was properly identified at the scene of the crime. In making this determination, it is crucial to examine the circumstances in which the appellant was identified, to assess whether they were favorable and conducive for the positive identification to the extent of eliminating all possibilities of mistaken identity. To assess the reliability of identification of the appellant, the court will consider the well-established factors outlined in the landmark case of Waziri Amani v. R [19801TLR 250. These including the source and intensity of the light, distance from where the identifying witness observed the accused; the time the accused was under observation by the identifying witness; absence to obstructing objects, knowledge or acquaintances of the witness on the accused depending on the nature and circumstances of identification. 13 Applying these factors to the present case, I will begin with the testimony of PW1, who, in part of her evidence, told the trial court as follows; '...I Illuminates him with the torch and managed to identified him it is a good torch and have enough tight which enable me to see well. I didn't know his name at that time but later on I discover that his name is John. I knew him before because I saw him several time passing as he is working at salt industries.' Upon careful scrutiny of this testimony, despite PW1 stating that she used a 'good torch' with,' enough light', her evidence is silent on the precise manner in which the torch was directed at the appellant to facilitate his identification. This omission is critical because, firstly, PW1 had stated that the person who entered her house also had a torch. This raises an important question; was there a moment when their torches illuminated each other? If so, how exactly did the identification occur? If their torches pointed at each other simultaneously, it would have been difficult for PW1 to make a clear identification. Secondly, PWl's testimony indicates that she did not know the intruder's name at the time but later discovered that his name was John. However, she did not specify when exactly she came to know this name or 14 from whom she obtained this information. If she had positively identified the appellant at the scene, she would have been able to name him immediately rather than referring to him as an unknown person. The lack of a clear explanation regarding how and when she later identified him as 'John'raises doubts about the reliability of her identification. This uncertainty leads to further questions; Did PW1 truly identify the intruder at the time of the incident, or did she later receive information from others who suggested the name John? If she relied on others to supply the name, who were they, and what descriptions did she give them that led to the identification of the appellant? Furthermore, the name John is common, what distinguishes this particular John from any other? There is no evidence explaining how it was determined that the John she later named was indeed the appellant. These gaps in the prosecution's case raise serious doubts about the accuracy of PWl's identification. Compounding this issue is the fact that immediately after the incident, PW1 reported to PW2, her neighbour, yet according to PW2's testimony; 15 "She told me that somebody was (sic) inter into her house and wanted to rape her.' If PW1 had positively identified the intruder, it would be expected that she would have mentioned his name immediately to PW2. Instead, she merely referred to "somebody an indication that she had not identified the person with certainty. Notably, PW2 also stated that PW1 only mentioned the name John later, without specifying after how long or under what circumstances she arrived at that conclusion. This unexplained delay in naming the appellant further weakens the reliability of her identification. It is well established in law that the ability to name a suspect at the earliest possible opportunity is a strong indicator of the reliability of an identification. Failure to do so raises reasonable doubt that should compel the court to scrutinize the evidence further. This principle has been underscored in Chacha Jeremiah Murimi & Others v. R (Criminal Appeal 551 of 2015) [2019] TZCA 52 (4 April 2019), Ibrahim Eston v. R (Criminal Appeal No. 75 of 2021) [2024] TZCA 516 (5 July 2024), and Posian s/o Ntamaboko v. R (Criminal Appeal No. 206 of 2022) [2024] TZCA 900 (17 September 2024). 16 Thus, PWl's failure to mention the suspect's name to PW2 at the earliest opportunity significantly undermines the credibility of her identification. Even if she later came to learn the name John, at the very least, she should have given PW2 a description of the perpetrator that could later be matched with the appellant. However, no such description was provided. This incident was later reported to the police, where PW4, the investigating officer, testified as follows; '... Through the victims statements it was mentioned by the victim those who concern with the matter. I found those people and interrogate them...' This evidence clearly suggests that, when giving her statement to the police, PW1 mentioned more than one person in connection with the incident. If she had indeed identified the appellant with certainty at the crime scene, why would she mention multiple persons? This raises serious doubts about whether she truly recognized the appellant at the time of the incident or whether her identification was based on later speculation or suggestions from others. Regarding the arrest of the appellant, PW4 further testified; 17 '...I discover also the accused person apprehended through Said Mohamed Mussa who is the victim's grandson who investigates and discovers where the accused located...1 It is worth noting that Said Mohamed Mussa never appeared in court to testify. Thus, it remains unclear what criteria he used to identify and apprehend the appellant in connection with this offence. Although PW2 was the one who informed PWl's grandson about the incident, his evidence is silent on whether he also informed the grandson of the suspect's identity. This leaves a crucial evidentiary gap regarding how the appellant came to be arrested and whether his arrest was based on an actual identification or mere suspicion. Even considering PWl's assertion that she had seen the appellant several times before, passing by on his way to work at the salt industry, the manner in which the identification was made still leaves room for reasonable doubt. The fact that someone is familiar does not automatically eliminate the risk of mistaken identity. This is especially true given the inconsistencies in the evidence regarding when and how the name John was established as belonging to the appellant. 18 It is well established that even identification by recognition, which is generally more reliable than the identification of a stranger, is not infallible. The Court of Appeal emphasized this principle in Shamir s/o John v. R, Criminal Appeal No. 166 of 2004 (unreported), stating; 'Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone he knows, the Court should always be aware that mistakes in recognition of dose relatives and friends are sometimes made.' Similarly, the Court has reaffirmed this principle in Bariki Isaya Urio v. R (Criminal Appeal No. 374 of 2016) [2018] TZCA 409 (3 October 2018) and Jero Essau v. R (Criminal Appeal No. 495 of 2021) [2024] TZCA 1066 (7 November 2024). In light of the foregoing discussion, there exist substantial doubts regarding the reliability of PWl's identification of the appellant. The inconsistencies in her testimony, the unexplained delay in naming the suspect, the absence of a clear and immediate description to PW2, and the reference to multiple suspects in her police statement all cast doubt on whether she truly identified the appellant at the scene or whether her identification was influenced by later events. 19 Given the legal principles governing identification evidence, particularly in cases where conditions for a positive identification are uncertain, I find that the evidence provided fails to eliminate the possibility of mistaken identity. Therefore, the prosecution's case does not meet the required threshold of proof beyond a reasonable doubt Consequently, this appeal has merit and is hereby allowed. The conviction and sentence meted against the appellant are quashed, and it is ordered that the appellant be released immediately unless held for some other lawful cause. It is so ordered. Dated at Mtywara'this°Wth March, 2025, M.B. Mpaze o Court: Judgment delivered today in the presence of Mr. Majaliwa Sebastian the State Attorney and the appellant. M.B.Mpaze Judge 10/3/2025 20