dickson mbasha vs republic 2024 tzhc 310 9 february 2024

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

DODOMA DISTRICT REGISTRY

AT DODOMA DC. CRIMINAL APPEAL NO. 63 OF 2023 (C/F Criminal Case No. 87 of 2022 before District Court of Dodoma) DICKSON MBASHA............................................................. APPELLANT

VERSUS THE REPUBLIC............................................................. RESPONDENT

JUDGMENT Last Order: 15th December 2023 Date of Judgment: 9lh February 2023 MASABO, J:- This is a first appeal. It emanates from the District Court of Dodoma (the trial court). The appellant was charged with one count of unnatural offence contrary to section 154 (1) (a) of the Penal Code Cap. 16 R.E 2022. It was alleged that on 24th June 2022 at Maili Mbili area within Dodoma District and Region, the appellant carnally knew one IJ (name withheld) a boy of four years against the order of nature. To prove its case, the prosecution called six witnesses who are Zainabu Rajabu, the victim's mother (PW1), IJ, the victim (PW2), Musa Paschal as PW3, Inspector Agripina Kamara (PW4), Hiltruda Francis Bunga, a clinical officer PW5 and WP. 11270 DC Roziada (PW6). In addition, it tendered two exhibits namely, the identification parade register which was admitted as exhibit Pl and a PF3 which was admitted as exhibit P2. Page 1 of 8 A brief account of the evidence that led to the conviction of the appellant is briefly as follows: on the fateful day, the victim's mother did not see her child and decided to look for him. She saw the victim walking along the appellant at the cemetery. He asked the child where he had been but he did not reply. When he asked the appellant what he had done to the child, he responded that he had done nothing to him and started to run away leaving his cattle. The

victim had stool on his trouser. PW1, sought the help of a neighbour one Molemi who advised her to report the matter at the police station so that she can get a PF3 for the victim's treatment. Having obtained it she took the victim to Makole Health centre where he was examined by PW5 who established that his anus was penetrated by a blunt object. The appellant was arrested and put under police custody. While there, an identification parade was conducted during which the victim positively identified him and the identification parade register was admitted as exhibit Pl during trial. The appellant denied the charges. At the end of the trial, the trial court found the prosecution to have proved its case and it convicted the appellant and sentenced him to life imprisonment and a compensation of Tsh. 300,000/= to the victim. Aggrieved, the appellant has appealed to this court. In the petition of appeal, he has raised eight grounds of appeal which are conveniently consolidated into five grounds. One, that, the prosecution did not prove its case beyond reasonable doubt. Two, the appellant was not properly identified. Three, there were procedural irregularities in conducting the identification parade. Four, the recording of the evidence of PW2 who is a child contravened the Page 2 of 8 law. Lastly, the trial court did not convict the appellant before sentencing hence contravening

sections 235(1) and 312(2) of the Criminal Procedure Act, Cap 20 RE 2022. At the viva voce hearing of the appeal, the appellant appeared in person unrepresented whilst Mr. Francis Kesanta, learned State Attorney appeared for the respondent. Being lay and unrepresented, the appellant gave no explanation in support of his grounds of appeal. He just prayed that they be positively considered. In reply, Mr. Kesanta, learned State Attorney sharply opposed the appeal. He submitted that the prosecution's case was proved to the required standards. The prosecution paraded six witnesses and through these witnesses it was established that the appellant ably proved its case. PW1 stated that she saw the appellant walking in the company of the victim. She observed that the victim's trouser was not properly zipped. When she asked the appellant what he has done to the victim, he did not respond but immediately ran away. Mr. Kesanta argued that by running away the appellant demonstrated that he well knew that he had molested PW2. It was further submitted that PWl's evidence was corroborated by PW2 who testified that it was the appellant who unnaturally knew him. Further, it was submitted that PW5 testified that when examining the victim's anal muscles, he found them loose. Hence suggesting that he was known against the order of nature. On the issue of identification, it was submitted that the

appellant was positively identified by PW2 at the identification parade conducted in the Page 3 of 8 presence of PW3 and PW4. The chances of mistaken identity do not arise. On the fact that the victim did not describe the appellant prior to the identification parade, the learned State Attorney did not dispute it. Rather he convinced this court to disregard it considering that the victim was a child and he directly pointed to the appellant and positively identified him when he was in the dock. Hence, there is nothing to doubt him. It was added that the identification parade was fully compliant with the law. The appellant was informed of his rights prior to the identification parade. He was allowed to call his relatives, friends or advocates. In the parade he was mingled with other people with physique similar to his. As regards the signing of the register book, it was conceded that indeed there is an omission. However, the same is negligible as the record shows that other persons who participated in the identification parade signed the register. Regarding the alleged irregularity in recording the evidence of the victim who was then of a tender age, it was submitted that there was no any irregularity as it is compliant to section 26(a) (b) of the Written Laws Miscellaneous Amendment Act No. 2 of 2016. The victim was asked simple questions and through his response to such

questions it was clear that he knew the meaning of truth and having answered such questions he promised to tell the truth. I have thoroughly read the record and considered the grounds of appeal alongside the reply submission and I am now ready to determine the grounds of appeal. I Will start with the last ground of appeal in which the appellant Page 4 of 8 has lamented that he was not properly convicted. This ground will not detain me as the record shows vividly that he was convicted. This ground is therefore with no merit. As for the remaining grounds, the ultimate issue for determination is whether the prosecution proved its case beyond to the required standard. This court being a first appellate court is duty bound to reevaluate the evidence on record and come up with an independent finding on whether the case against the appellant was proved. It is similarly crucial to revisit the law as regards the burden and standard of proof. It is indeed a cardinal law that in criminal cases such as the instant one, the prosecution is duty bound to prove the charges against the accused beyond reasonable doubt. The burden never shifts to the accused as he need not prove his innocence. All what the accused needs to do is to raise reasonable doubts on the prosecution case (see Mohamed Haruna @ Mtupeni & Another v. Republic, Criminal Appeal No. 25 of 2007, CAT (unreported) and Mwita and

Others v. Republic [1977] TLR 54). Thus in this case, the conviction and sentence passed by the trial court can only be sustained if it is established that the prosecution proved without reasonable doubt that the victim was known against the order of nature and that the culprit was none other than the appellant herein. With these principles in mind, I will now move to the second and third consolidated grounds of appeal which I prefer to determine parallel as they both challenge the propriety of the identification of the appellant. The Page 5 of 8 appellant's major complaint in these grounds is that the identification parade through which he was identified by the victim was marred by procedural irregularities hence, illegal. As the appellant did not elaborate on his complaint, to appreciate it, it is crucial I think, to look up to the procedure for conducting identification parades. The law is settled that, for the identification parade to be accepted and accorded weight as credible evidence, it must have been conducted in full compliance with the procedure set out under the Police General Orders (GPO) 232 and applied in numerous decisions of the Court of Appeal and this court. One of the vital requirements is the description of the suspect prior to the identification parade. Reckoning its previous decision on this requirement the Court of Appeal in Leonard Mathias Makani and

Another vs Republic (Criminal Appeal 579 of 2017) [2023] TZCA 182 Tanzlii, emphatically stated that: This Court consistently maintained that giving a detailed description of the appellants is a pre-requisite condition before the identifying witness is taken to the identification parade for him to identify the person(s) he allegedly saw at the crime scene. (See Ahmad Hassan Marwa v. The Republic, Criminal Appeal No. 265 of 2005 and Athuman Buji V. Republic, Criminal Appeal No. 118 of 2008 and Adriano s/o Ayondo v. Republic, Criminal Appeal No. 29 of 2009 (all unreported). For instance, in the last case, the Court stated as follows: - ".... it is settled law that for any identification parade to be of any value, the identifying witnesses must have earlier given a detailed description of the suspects." The ability of a witness to single out a culprit from a group of persons attending an identification parade based on description given before cements his dock identification as the Court Page 6 of 8 propounded in the case of Abdul Farijalah and Another vs Republic, Criminal Appeal No. 99 of 2008 (unreported) that: - "It is trite law that the test in an identification parade is to enable a witness to identify a person or persons whom she or he had not known or seen before the incident. An identification parade held soon after the incident in which a witness positively Identifies an

accused lends assurance to the court of that witness's dock identification of that person.. In the instant case, neither of the victims gave the descriptions of the culprits to any including the police prior to being exposed to the identification parades. The parade was therefore of no value at all. Actually, all there is in the record is a dock identification which, independently, cannot ground a conviction. We therefore entirely agree with the learned Senior State Attorney that evidence placing the appellants at the crime scene is wanting, [the emphasis is mine] In the present case the record shows that much as the victim identified the appellant at the identification parade, he did not describe the person who molested him prior to the parade. On the strength of the authority above, the evidence as to the identification parade is of no value and is discounted. Having discounted the identification parade, the sole evidence connecting the appellant to the offence is the dock identification which as per the authority above cannot by itself sustain a conviction. Similarly unworthy is the evidence of PW1 who just stated that he found the appellant walking Page 7 of 8 alongside the victim but did not see him committing the offense. For these reasons, the second and third grounds are found with merit and are upheld. As the finding in these two grounds of appeal sufficiently disposes

of the appeal, I see no need to proceed to the remaining grounds. Accordingly, the appeal is found with merit and is allowed. The conviction and the sentence passed against the appellant are quashed and set aside and so is the order for compensation. It is further ordered that the appellant be immediately released from prison unless he is otherwise held for another lawful reason(s). DATED and DELIVERED at DODOMA this 9th day of February 2024 J. L. MASABO

JUDGE Page 8 of 8