jacob paul and another vs republic 2023 tzhc 16782 31 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

AT TABORA DC. CRIMINAL APPEAL NO. 23 OF 2022 (Originating from Nzega District Court in Criminal Case No. 114/2020) JACOB S/O PAUL.............................................................. 1st APPELLANT JUMA S/O IDDY @ HASSAN............................................ 2nd APPELLANT

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

JUDGMENT Date: 20/03/2023 & 31/3/2023 BAH ATI SALEM AJ.: The appellants, Jacob Paul and Juma Iddy Hassan were jointly charged in Nzega District Court with two counts namely, gang robbery contrary to sections 285(2) and 287 (c ) of the Penal Code, Cap.16 and gang rape contrary to section 130(1), 2(a) and 131A (1) and (2) of the Penal Code, Cap.16 [R.E 2022]. They were alleged to have committed the offence against Pili d/o fft Athuman, a woman of 34 years old on 7th November, 2020 at Nyasa area within Nzega township in Tabora region. As the appellants pleaded not 4 -5 guilty to all counts, the prosecution paraded witnesses. After the full 1 trial, the appellants were found guilty and convicted of gang rape c/s 130 (2) (a) and 131A of the Penal Code Cap. 16 [R. E. 2019] and sentenced to serve a custodial sentence of thirty years in jail each. 'S 'X Distressed by the impugned decision of the District Court of Nzega District on grounds of appeal namely: - * 1. That, the case for the prosecution was not proved, against the, I appellants, beyond reasonable doubt as required by the law. ) 2. That, the learned trial magistrate erred in fact and law to find and hold that the appellants were positively identified at the scene of the crime to be "particep criminis" to the offence charged.

3. That, PW1 did not explain, in her testimony before the trial court, •jJc the intensity of the kerosene lamp which allegedly aided her -■ identification of the appellants.

4. That, PW2 did not describe the identity of any of the appellants. f %: Si 5. That, the learned trial magistrate did not address his mind to the material discrepancy between PW1 on the one hand and PW2 on s the regarding whether all the appellants allegedly penetrated PW1 at the same time as aptly put by PW2 who said he saw two people on top of her mother, and not one at a time as testified by PW1.

6. That, the prosecutions did not summon the landlady or one SELE * MASUNGA to whom PW1 allegedly report the incident in the ) earliest time possible.

7. That, the person(s) who arrested the appellants was not summoned in court to testify on whether their arrest had any connection with the commission of the offence charged.

8. That, PW1 was allegedly infected with sexually transmitted disease no evidence was led by the prosecution whether the appellants all or one of them had a sexually transmitted disease. % 9. That, there is a discrepancy between PW1 on the one hand and PW3 i and PW4 on the other regarding the details of PW1 going to the hospital after issuance of the PF3, the doctor's findings, and •t A* returning of the alleged PF3 to the police. * ■* 10. That, there is no proof that the doctor who conducted the medical examination of PW1 indeed died. J 11. That, exhibit Pl, the PF3 allegedly ofPWl was not read aloud in court in the hearing of the appellants in order to reveal its 'f contents.

12. That, the trial court was not told by the prosecutions when the appellants were arrested in order to ascertain whether exhibits P2 and P3 were made within the time prescribed by sections 50 & 51 % of the Criminal Procedure Act [Cap. 20 R.E. 2019].

13. That, exhibits P2 and P3 the cautioned statements allegedly made by the appellants before PW3 and PW4 respectively, were made upon the appellant not being free agents. During the hearing of the appeal, the appellants were .■ unrepresented whereas Mr. Joseph Mwambwalulu, State Attorney for the Republic. Being laypersons the first and second appellants adopted the grounds of appeal to form part of their submissions. Responding, the State Attorney objected to their appeal. Submitting on the second ground, third and fourth grounds of appeal first, he stated that PW1, (victim) explained that she knew the appellants before the event. She stated that it was during the night hours when she was using lamp kerosene as a light and thus it was possible to identify them and it was not distant. She submitted that identification was not a if challenge to her. To bolster his stance the learned counsel urged this i court to seek the inspiration from the case of Waziri Amani v. Republic [1980] TLR 250 the victim identified the appellants. •’4 As to the fifth ground in respect of discrepancy, he submitted that f according to the victim's evidence, she mentioned them since they were I exchanging while raping her. 4 > On the sixth ground of appeal, the State Attorney referred to this ** court to Section 143 (6) of the Law of Evidence Act, Cap.6, Cap. [R.E. 2022] that since the evidence was

enough and the land lady was blind so she could not come to testify. Likewise, on the seventh ground of appeal, that arresting officer was not called as per section 143 since the evidence was sufficient. 5 4^1 a 4 1 On the eighth and ninth of grounds of appeal, he stated that according to the records, the victim went to the hospital and received treatment. As to the tenth ground of appeal, no proof of the one who died (medical). This was information from the administrative. On the eleventh ground of appeal, he admitted that PF3 was not t read before the court. • I ’• I On the twelfthy ground, he stated that according to sections 50 and 51 of the Criminal Procedure Act, Cap 16, as in the record the appellant did not cross-examine. In the record, there is nowhere revealed. On the thirteenth ground, P2 & P3, the caution statements were admitted. He beckoned this court to dismiss the appeal for want of merit. Rejoining, the 1st appellant reiterated his submission in chief and I prayed this court to allow the appeal whereas the second appellant in % ■ his testimony stated that PW2, a son of the victim testified that there are three tenants where they live and mentioned them conversely PW1, the T victim stated that she was living with the landlord only who is blind. He further stated that PW1 never went to report the matter to "Balozi" or I the chairman until 10 hours in the morning

when she went to the butcher. He too complained that the doctor who examined her was not * called, and the PF 3 was not read nor were they taken to the justice of • •* J the peace. a // • r X >* I r r & After a careful review of the record and the submissions made by * parties, the main issue for consideration and determination in this appeal is whether or not the appeal has merit and whether the victim identified the appellants correctly. Starting with the 2nd, 3rd, and 4th grounds of appeal as they both fall on identification. f The law is settled in this jurisdiction that evidence of visual identification is of the weakest kind and most unreliable. As such, this type of evidence should only be relied upon to convict an accused person when all possibilities of mistaken identity are eliminated and when the court is satisfied that the evidence before it is watertight. This A observation was made by this Court in Waziri Amani v. Republic [1980] TLR 250. Apart from that observation, the Court restated the principles to be taken into account when deliberating whether or not to rely on such evidence. It was stated that before relying on such evidence, the court should put into consideration such factors as the time the witness * "'m had the accused under observation, the distance at which the witness T 4 * had the accused under observation if there was any light, then the

source '•t and intensity of such light, and also whether the witness knew the accused before the incident. •B In this case, there is no dispute that PW1, Pili Athumani testified that the incident occurred during the night between 00:00hrs and 03:00 s' 6 I hrs. PW1 testified to the trial court that on 7/11/2020 during the night in her house with her three children; the appellants broke the door and Jacob, the first appellant called her name and she identified his voice, and with the aid of a kerosene lamp he wore a white t-shirt and blue jeans and kibaragashe (hat) while the second appellant Juma who accompanied him wore pull over, brown in color and black trouser. She explained also how they started to rape her while exchanging rotations. ^4 In this matter, PW1 testified that she identified the appellant at the scene of the crime as they were familiar to each other, however, she did not name them at the earliest possible moment to her landlady who is believed to be a blind or to Sele whom she first reported the incident to I him. (k * It is my considered view that for a person to rely on evidence of visual identification, the surrounding circumstances of the offence .1 should be shown. According to the court records, I have noted that the evidence given by PW1 and PW2 on their identification of the appellants fall short of the standard laid down in Waziri Amani (supra).

Their evidence was not watertight and it cannot be said that based on that /• ft evidence the appellants were positively identified at the scene of a V v. crime. The court has found that no record showing the intensity of light % which was the source of light which enabled her to identify the appellants. This court has held in several cases that, when a court of law is to rely on the evidence of a witness on visual identification, it has to consider some guidelines to avoid mistaken identity of a suspect. First PW1, the victim stated that she identified Jacob since he called her and she knew his voice; and also identified his attire, as well as to the second accused was identified by his attire but she did not mention or name them to anyone until she was informed by Afande Agnes that the accused have been arrested. This makes me doubt whether PW1 really & r identified the first appellant at the scene of the crime as they were I S familiar with each other. In the case of Jaribu Abdallah the Court observed that; "In matters of identification, it is not enough merely to look at factors favouring accurate identification, equally important is the credibility of the witness. The conditions s for identification might appear ideal but that is not guaranteed against untruthful evidence. The ability of the witness to name the offender at the earliest possible moment is in our view

reassuring though not a decisive f- factor, "(with Court's emphasis) V From the above excerpt, it is my considered view that, if the appellants 1 were properly identified at the scene of the crime, I would have expected PW1 could have mentioned them at first during the morning when she went out and met Sele Masunga who advised her to report the matter 8 to the police. Even at the central police, she could have mentioned the appellants since she knew them but nothing is revealed in the record. Like the evidence of PW2, a son of the victim who was 8 years, during cross-examination he stated that when the appellants broke the door when he was asleep and then he was told to take his young brother Peter Jacob. I find that this contradiction raises doubt on the witness' credibility and the claim that they positively identified the appellant at the scene of the crime. j Therefore, from that part, the evidence from the prosecution witnesses on which the trial court based its finding could not be that much relied upon because the witnesses did not disclose or mention to anyone prior to the arrest of the appellants. As I quote from the extract of the proceedings, "During the morning I went to Nyasa where their meat • ■* butcher, there I met with Sele Masunga I told him. He V said I should report to police. Thus, I went to police post Ji central. I reported there and then they gave PF3

which I took it to hospital." As to the seventh ground of appeal that the one who arrested the person were not summoned to testify whether the said arrest had any connection with the commission of the offence charged. ■> 9 Although the State Attorney cited to this court section 143(6) of the Evidence Act, Cap.6 [R.E 2022] that it was not necessary as the evidence was sufficient. With due respect, I beg to differ with that since this court after scrutinized the evidence from the records, is of the conviction that they were material witnesses who ought to be called as witnesses. The above persons were within reach and no reason was given why they could not be called. An adverse inference is thus drawn against the prosecution. See, Azizi Abdallah v. Republic [1994] T.L.R. 71 and Kobelo 4 Mwaha v. Republic, Appeal No. 173 of 2008 (unreported). In the latter >• case, the Court stated that inference may be made where the persons A omitted are within reach and not called without sufficient reason being shown by the prosecution. » Thus, I find that the prosecution failed to lead investigatory evidence as to how they arrested the appellants to ascertain whether their I; apprehension emanated from the crime at hand. In this prosecution Jf case, the procedure for arrest was not exposed, at all, and there was no record connected to the offence. In the case of Ibrahim Shabani Ally Kalulu V.

R; Criminal Appeal No. 110 of 2002 (unreported), the court I made the following pertinent observation: s M 4* * "It is our opinion that the slackness in arresting the i appellants was not due to inefficiency, but to lack information as to whom they were to arrest." I 10 X * In my view, the evidence of all the witnesses; PW1, PW2, PW3 and PW4 did not explain how the accused were arrested and how they were connected to the offence of gang rape. The appellants' claim that they were remanded in custody for a different offence cannot, under the circumstances of this case, be disregarded because despite the seriousness of the offence failure by the prosecution to call the I investigation officer, who would have explained, where, how and for what reason were the appellants arrested, makes the appellants' defence believable. It is clear from what is set out above that there were Ji some shortcomings in the witnesses' evidence, which weakened their 3 credibility as witnesses thus their convictions were not on merit. 4 As to the 6th ground, the prosecution did not summon the landlady % who was said to be blind, I thinkshe could have told herthe incident was the one who committed the offence instantly. As I was navigating on the* evidence of PW2, during cross-examination, he stated that at home, "We are three there are other tenants mother Will, baba Hadija and us" while PW1 in her

evidence testified that "lama tenant at the house we were L two, one grand and a sister together with the landlord who is blind." These two statements from the prosecution are also confusing. Although I am mindful that it is trite law that witnesses must be trusted unless there is a reason to question their credibility in the case of Andrea ■s r 11 I V I * *1 Chacha and Another v Republic, Criminal Appeal No 192 and 193 of 2019.1 find this ground with merit. As to the 1st, 8th and 9th grounds of appeal on whether the offence of gang rape was proved. In the case of Seleman Maumba v Republic, Criminal Appeal No. 94 of 1999 (unreported) which stated that: - "True evidence of rape has to come from the victim/ if I an adult that there was penetration and no consent and in the case of any other women where consent is $ :ior* irrelevant that there was penetration." $ In this instant case PW1, Pili Athumani testified that during the night in her house, the appellants broke the door and raped her while exchanging routines. She expressed how she was raped twice and the appellants never used condoms. The first time was at OO.OOOhrs and the second time was 03:00 hrs. She was examined at the hospital and given PF3. However, it was not read over to them loudly in the trial court. 'X Section 131A (1), (2) and (3) of the Penal Code, cap 16 provides for ar offence of gang rape. Unlike the

offence of rape under section 130, the prosecution must establish both lack of consent and penetration; lack of .V consent and penetration must similarly be proved in gang rape under section 131A. T 12 "» wi In this case at hand, the appellants complained that the PF3 was not read aloud before the court. It is also settled law that after the court clears the exhibit for admission, it must invite the witness to read its contents to the accused person. In the event, the trial court omits reading the contents of the admitted exhibit to the accused person. The appellate court cannot act on such exhibit. It expunges it from the record. J >♦* As stated by the appellants, the exhibit admitted was not read before the court as required by law, as per the case of Edgar s/o Kayumba Vs. DPP, Criminal Appeal No. 498 of 2017 (CAT) (unreported). The omission to nF read the documents after they have been admitted is an irregularity that may not be cured. ! For the above reasons I find that through their defence, the appellants \* managed to raise a reasonable doubt in the prosecution case. There was no sufficient evidence to support the prosecution case against the appellants and the case against the appellants was thus not proved to the hilt as required by the law. In the final analysis, I allow the appeal, quash the conviction, and set aside the sentence imposed on the appellants. I order that they be released from prison forthwith unless they are being held on other lawful cause. t 13 Order accordingly. A. BAHATI SALEMA

JUDGE 31/3/2023 Court: Judgment delivered in presence of both parties. A. BAHATI SALEMA

JUDGE 31/3/2023 Right of Appeal fully explained. A. BAHATI SALEMA

JUDGE 31/3/2023 14