CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA

AT SUMBAWANGA f CORAM; MWARI3A. 3.A.. MASH AKA. 3.A. And FELESHI. 3 JU CRIMINAL APPEAL NO. 284 OF 2023 EDWIN MARTIN .......... ..... ..... ........ ...... APPELLANT

VERSUS THE REPUBLIC ......... ..... ...... ...... ....... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Sumbawanga) (Mwenempazi. J.) dated the 2nd day of February, 2023 in PC Criminal Appeal No. 37 of 2022

JUDGMENT OF THE COURT 26th & 28th March, 2025 MASHAKA. J.A.: The appellant, Edwin Martin, was charged with unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [Chapter 16 Revised Laws of 2019] before the District Court of Mpanda in Katavi Region and was convicted. He was sentenced to life imprisonment. His appeal to the High Court was dismissed. Hence this second appeal. A brief account of the evidence which led to the conviction of the appellant is that, on 18th March 2019 at Ilembo area within Mpanda District in Katavi Region, the appellant had carnal knowledge of a boy (name withheld) aged seven (7) years old against the order of nature. For the purpose of protecting his modesty, we shall refer to him as the victim or PWl. When the charge was read over to the appellant, he denied to have committed the offence. To prove the charge, the prosecution adduced evidence of six (6) witnesses namely; the victim (PWl), Chrispin Lyamba (PW2), Swaibu Yahya, PWl's father (PW3), G. 2043 D/C James (PW4), E. 278 D/Sergent Salum (PW5) and Athumani Jumanne (PW6) and relied on documentary evidence to wit; birth affidavit of the victim (exhibit PI) and PF3 (exhibit P2). On the fateful date, PWl, a standard three pupil at Ilembo Primary School was returning from school and on his way home, he met a black complexion and thin man who was standing near unfinished house.

He showed him a box of biscuits and lured him to follow. They went together up to unfinished house. Upon entering the unfinished house, the man ordered PWl to remove his clothes. When PWl refused, he threatened to slap him and forcibly removed all his clothes and he also removed all his clothes and ordered PWl to sleep on a mattress. PWl complied as he was threatened with a knife which the assailant was holding and warned him not to raise any alarm. The assailant, then inserted his male organ into his anus and sodomized him. After accomplishing his evil act, the said black and thin man ran away. PW1 then dressed up and left the unfinished house. Upon arrival at home, PW1 met with his aunty who saw feces on his shoes, she beat him and told him to wash himself. PW1 took a shower. While walking, his grandfather (PW2) noticed PW1 walking with difficulties and asked him what was wrong. PW1 narrated the whole incident that a black and thin man lured him vvith a box of biscuits and took him into unfinished house and sodomized him. They reported the incident to the Mpanda police station, PW1 was issued with a PF3 and was medically examined by PW6 who observed the remnants of feces in PWl's anus and revealed that there was a possible forceful penetration by a blunt object. PW6 filled PF3 which was tendered in evidence as exhibit P2. The case file at the police station was handed to PW5

for investigation. On 7th November 2020, PW3 was with PW1 at Mapanda Hotel watching a football match on a TV screen. PW1 called PW3 and informed him that he saw the man who had sodomized him. PW3 reported the matter to the police station and PW4 was ordered by OC-CID to go to Mpanda Hotel and conduct an investigation on a tip received from PW3. At Mpanda Hotel, PW4 found a man who had been apprehended, he arrested him and ordered PW1 to report to the police station. That black and thin man turned to be the appellant. In his defence, the appellant denied to have committed the offence and averred that none of the prosecution witness saw him committing the crime. After a full trial, the trial magistrate convicted the appellant based on the evidence of PWl, being the victim of the terrible crime, finding him a credible and truthful witness who he managed to describe the appearance of the appellant and that the ingredients of the offence under section 154 (1) (a) and (2) of the Penal Code were established. The appellant was sentenced as alluded above. The appellant unsuccessful appealed to the High Court. Now he is before us in this second appeal. In his memorandum of appeal, the appellant raised two grounds which are paraphrased as follows: 1. That the first appellate court erred in law to dismiss the appellant's appeal without taking into consideration that the prosecution

evidence was contradictory, problematic consisting full o f (a) The trial and first appellate courts failed to observe that the identification parade was not conducted to prove that PW1 identified the appellant at the police and has stated the description o f the said assailant (b) The trial and the first appellate courts failed to analyze that from 18/03/2019 up to 7/11/2021 was a long time for PW1 a tender age witness to reserve a memory of the person whom he only saw for the first time. (c) The evidence of PW6 a doctor was not dear because it was an opinion relying on probability not otherwise. (d) The evidence o f PW1 was not supported by his primary school teacher and school attendance register book.

2. That the first appellate court erred in law to dismiss appellants appeal without taking into account that the prosecution failed to prove the charge beyond reasonable doubt as follows: (a) The appellant was not arrested while sodomizing PW1. (b) The prosecution failed to tender a sketch map o f the area o f crime. (c) The prosecution faiied to call the neighbor, the owner o f the 'pagafa' unfinished house, leaders o f the area to prove if the crime were reported firstly". On the day for hearing of the appeal, the appellant was present in person, unrepresented. The respondent, Republic was represented by Ms. Flavia Shiyo, learned Senior State Attorney assisted by Mr. Joseph Mwakasege, learned State Attorney. The appellant prayed to adopt the grounds of appeal and let the respondent, Republic to reply first and he reserved his right to rejoin. Ms. Shiyo argued the appeal and commenced her submissions by resisting the appeal and expressing that she supports the appellant's conviction and sentence. However, amid her submissions, when the Court drew her attention on the identification of the appellant, she reversed the respondent's position and supported the appeal in respect of ground 1 (a) and (b) of appeal. She argued that, there was a possibility of mistaken identity by PW1 as he saw the appellant for the first time at the time of commission of the crime and he had not seen

him before. She submitted that the incident occurred on 18th March 2019 and the appellant was arrested on 7th November, 2020. While, she further argued that PW1 claimed to have identified him after a lapse of one year and eight months at a pub where he and his father were watching a football match. The only description PW1 gave to PW2 and the investigation officer, of the appellant was that he was a thin and black man. Since there was no other prosecution witness who had seen the appellant, Ms. Shiyo stressed that the evidence by PW1 the victim, was not watertight as there was a possibility of mistaken identity. Based on that argument and the manner the appellant was identified, Ms. Shiyo prayed to the Court to allow the appeal and the appellant to be released. The appellant had nothing to rejoin rather he subscribed to the submissions of the respondent and prayed his appeal to be allowed and to be set free. Having heard the submissions of the learned Senior State Attorney and perusal of the record before us, the issue for our determination is the visual identification of the appellant by PW1, a complaint advanced in ground 1 (a) and (b) of appeal. Firstly, it is worthy to note that both the trial and the first appellate courts considered PW1 a credible and truthful witness on which evidence the conviction was grounded, therefore this Court may not fault such findings. However,

the settled position of law is that where there is a concurrent finding of fact by the lower courts, the second appellate court will rarely interfere unless there is misapprehension or misdirection of the quality nature of the evidence occasioning miscarriage of justice. See for instance, Jafari Mohamed v. Republic (Criminal Appeal No. 112 of 2006 [2013] TZCA 344 (15 March 2013) and Mohamed Said v. Republic (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019). In the former case, the Court remarked that; "An appellate court, like this one, will only interfere with such concurrent findings of fact only if it is satisfied that they are on the face o f it unreasonable or perverse leading to a miscarriage of justice, or there has been a misapprehension o f the evidence or a violation o f some principles of law..." The principles guiding satisfactory identification of an accused were set out in the landmark case of W aziri Amani v. Republic (1980) T.L.R 250 where it warned the courts that it is the weakest kind and most unreliable evidence, and that no court has to act on the 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 stated conditions to be taken into account when considering visual identification evidence such as: one,

the time the witness observed the accused; two, the distance at which the witness observed the accused; three, the conditions where the observation occurred, for instance, whether it was during day or night time and whether there was good or poor light at the scene; and four, whether the witness knew or had seen the accused before. We are alive that as was stated in the case of Juma John v. Republic, Criminal Appeal No. 119 of 2009 while citing the case of Emmanuel Luka and 2 Others v. Republic, Criminal Appeal No. 325 of 2010 (unreported), the guidelines which were stated in W aziri Amani v. Republic (supra) are not exhaustive and that each case has be considered by its own circumstances. Thus, in Joseph Mkumbwa & Another v. Republic (Criminal Appeal No. 94 of 2007) [2011] TZCA118 (23 June 2011) the Court held: "So, where the suspects are strangers to the victims as in the present case, courts have insisted that such witnesses ought to give a detailed description o f suspects to persons to whom they first report (see R v. Mohamed Bin Alhui (1942) 9. EACA 72)." In the present appeal, the incident took place on 18th March, 2019 where the evidence adduced by PW1 portrays that the incident took place at day time. Immediately after the appellant finished to sodomize PW1, he run away. Then PW1 went home and explained the incident to PW2. PW1 gave description of the appellant to PW2,

that the assailant was a black and thin man without more. Therefore, the description of the appellant was wanting, and the appellant was not familiar to PW1. Such an akin circumstance was observed in Fahadi Khalifa v. Republic (Criminal Appeal No. 573 of 2020) [2022] TZCA 251 (9 May 2022) and the Court held: ’7/7 the current case nothing on record indicates that PW2 described the person who raped her. There was no identification parade conducted to identify that person though we think, since the appellant was not familiar to PW2, there was a need for an identification parade. Failure of PW2 to mention and describe the person who raped her affected the value o f her evidence and hence tainted her credibility. We 10 are o f the increasingly view that this might be a case o f mistaken identity" See: Shija Bosco @ Hamis v. Republic, Criminal Appeal No. 20B of 2009 (un reported) In light of the above, since PW1 did not describe unique feature or appearance of the appellant more than stating that the appellant was black and thin man, after his arrest then it was the duty of the investigator to look for corroborative evidence.. Failure of which, affects the evidential value of PWl's evidence, hence his credibility is tainted and increases the chance of mistaken identity of the appellant, In addition, the appellant was arrested after lapse of one year and eight months from the date of

the commission of the crime which was on 18th March 2019 at Ilembo area to 7th November 2020 while watching a football match at Mpanda Hotel when PW1 informed PW3 that he saw the person who sodomized him. The appellant was consequently arrested therein. Due to the lapse of time, would it have been possible for the victim to properly identified his assailant whom he had only seen for the first time that date of incident? With this in mind, the Court was faced with akin situation in Joseph Mkumbwa & Another v. Republic {supra), where the appellant was a li stranger to the identifying witness and after three months had lapsed from the date of the commission of the crime to the date the appellant was arrested. We had this to say: "With due respect to the first appellate court, we think, in the circumstances■ an identification parade was necessary, even where the witnesses alleged that there was enough light to enable the appellants to be identified, because after the lapse of three months between the commission o f the offence and the next time they saw them in the police custody, their memories could not have remained the same." Taking account, the above excerpt and the evidence adduced in the present appeal that the appellant was arrested after the lapse of one year and eight months, we are of the finding that the memory of PW1 aged 7 years old could not remain the same even if

there was favorable condition in identification. We note that PW1 failed to give a detailed description of the appellant, the only description by the appellant was a general description of a black and thin man which does not suffice and eliminate the possibility of mistaken identity. As PW1 was the only identifying witness, his identification was not watertight to ground conviction of the appellant. Thus, ground 1 (a) and (b) of appeal are merited. We find this ground suffices to dispose of the appeal. For the foregoing reasons, we allow the appeal, quash the conviction and set aside the sentence. We order the appellant's immediate release, if he is not being held for another lawful cause. DATED at SUMBAWANGA this 28th day of March, 2025. A. G. MWARIJA

JUSTICE OF APPEAL L. L. MASHAKA

JUSTICE OF APPEAL E. M. FELESHI

JUSTICE OF APPEAL Judgment delivered this 28th day of March, 2025 in presence of appellant in person - unrepresented and Mr. David Mwakibolwa, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. J. J. KAMALA ^ DEPUTY REGISTRAR

COURT OF APPEAL