CRIMINAL CASE NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 163 OF 2022 (Arising from the District Court of Temeke in Criminal Case No. 55 of 2021) KIMU MAHIMBA NGOROME @CHORISO........................................APPELLANT VERSUS THE REPUBLIC..............................................................................RESPONDENT JUDGMENT 27th March & 28th April, 2023 BWEGOGE, J. The appellant above named instituted an appeal herein against the decision of the District Court of Temeke (the trial court) in which he was arraigned and convicted of rape contrary to sections 130 (1), (2) (e), and 131 (1) of the Penal Code [Cap 16 R.E 2019]. The particulars of the offence alleged that on 20th January, 2021 at Tuangoma Mbagala within Temeke District in Dar es Salaam Region, the appellant did have carnal knowledge of the victim, PW1 herein (name withheld), a girl of 15 years old. 1 The facts of this case, albeit briefly, are thus: The victim and appellant herein are residents of Tuangoma, Mbagala area in Temeke District. The appellant is well-known to the victim. He has a saloon near the residence of the victim. On a fateful day of 20/01/2021, during the hours of darkness, the victim was sent to a nearby shop to buy soap. When the victim who was returning home, the appellant subdued and dragged her to a nearby unfinished building and raped her. Thereafter, the appellant escaped from the scene of crime leaving the victim helpless. The victim went back home and informed her parents what had transpired. Her parent took her to Mbagala Police Station where she was issued with PF3 for treatment. The victim was examined by the medical practitioner and her genitalia was found with evidence of laceration and active bleeding. The victim named the appellant herein as the perpetrator of the crime at the earliest opportunity. Consequently, the appellant was arrested and charged accordingly. During the defence, the appellant made a total general denial of the grave allegation levelled against him. Finally, the trial court having assessed the evidence laid on the table, found that the prosecution had proved the charge beyond sane doubt. 2 Consequently, the appellant was convicted of the offence and sentenced to languish in jail for 30 years. Apprehending his freedom was unreasonably assailed, the appellant appealed against the conviction and sentence entered by the trial court on seven grounds which are paraphrased hereunder; 1. That, the learned magistrate grossly erred both in law and fact in convicting the appellant based on incredible evidence of PW2 (the victim). 2. That, the trial magistrate erred in law and fact in convicting the appellant based on discredited and untenable evidence of visual identification/recognition adduced by PW.2. 3. That, the trial magistrate erred in law and fact in basing his conviction on the testimonies of PW1, PW3, and PW4 who were not eyewitnesses. 4. That the learned trial magistrate erred in law and fact for failure to consider that the arresting officer was not called to testify on how the appellant was arrested. 5. That, the learned trial magistrate erred in law and fact in disregarding defense evidence which is fatal in law. 6. That, the learned trial magistrate erred in law and fact in failure to consider the delay occasioned in reporting the crime to the police from 20/01/2021 to 23/01/2021. 7. That, the learned trial magistrate erred in law and fact in convicting the appellant based on a case which was not proved beyond reasonable doubt. During the hearing of this appeal, the appellant fended for himself whereas the respondent was represented by Ms. Elizabeth Mkunde, learned state 3 attorney. The appellant prayed to submit his written submission in support of his appeal and the state Attorney who was availed with copies of the appellant’s submission argued the appeal orally. In his written submission, the appellant argued the 1st and 2nd grounds of appeal together. He argued that the evidence of the victim was insufficient, incredible, improbable, and unreliable to warrant his conviction as the purported evidence was not watertight. That as the incident happened at night, around 20:00 to 21:00hrs; then it was most important for the victim to clarify the parameters she used to identify her assailant, including the distance and intensity of the light. In the same vein, the appellant alleged that the victim did not give any graphic descriptions of her rapist to establish her visual identification and, or recognition, let alone the fact that she failed to state the lengthy of time in which she observed the rapist. The appellant referred the cases Godfrey Lusian Shirima vs. Republic (Criminal Appeal 40 of 2021) [2022] TZCA 584 and Mussa Ramadhani Magae vs. Republic (Criminal Appeal 545 of 2021) [2023] TZCA 181 to validate his argument. The appellant opined that had the trial magistrate properly assessed the victim's evidence he would have not have concluded that the appellant sufficiently identified him. 4 In respect of the 3rd and 4th grounds of appeal, the appellant submitted that since the evidence of the victim (PW2) lacks credence, it follows that the remaining evidence deponed by PW1, PW3, and PW4 is rendered weak and unreliable to ground his conviction. That the evidence of PW1 is nothing but hearsay; the evidence of PW3 (medical practitioner) is merely to the effect that he attended the victim but didn’t implicate the appellant as the actual rapist; and the evidence of PW4 is only to the effect that she received the case file from her superior for the investigation whereas she deponed no evidence linking the appellant to the case at hand. Further, the appellant argued that the prosecution did not give the reason as to why the people who arrested him were not called to testify in court to enlighten the court on how he was identified. Pertaining to the 5th ground of appeal, the appellant alleged that the trial magistrate without reasonable ground rejected/disregarded the evidence adduced by the defence which raised reasonable doubt on the prosecution case. 5 Regarding the 6th and 7th grounds of appeal, the appellant alleged that he was not handed over to the Court from 20th of January, 2021 to 23rd January, 2021; hence, stayed in police custody beyond the period prescribed by law. In sum, the appellant concluded that the prosecution case was not established to the standard set by law; hence, prayed this court to find this appeal meritorious, allow it in its entirety, quash the conviction and set aside the sentence imposed on him and order his immediate release from prison. Conversely, Ms. Mkunde contested the appeal herein. She contended that the victim/PW2 is credible and the relevant witnesses in this case as she knew well the appellant and had recollected what had transpired at the crime scene. That the victim had a clear view of the appellant who was familiar to her and she had clearly stated that the crime scene was illuminated by electric light. Likewise, the attorney contended that the appellant did not cross-examine the victim in the aspect of the purported mistaken identity. In the same vein, the attorney argued that the victim had no obligation to give a physical description of the appellant since she was familiar with him and she mentioned the appellant by his name. Hence, the victim’s evidence is reliable. The case Leonard Joseph @ Nyanda vs Republic (Criminal Appeal 186 of 2017) [2020] TZCA 51 was cited to bolster the point. 6 Responding to the 3rd ground appeal, the attorney contended that the trial court considered the evidence furnished by the prosecution as adduced by PW1, PW3 and PW4 which corroborated the evidence of PW2 in reaching its conclusion on the guilt of the appellant. Replying to the submission made in respect of the 4th ground of appeal, the counsel argued that the appellant was arrested by the public. And, the appellant admitted that he was arrested by the school of people and submitted to the police station. Hence, the attorney opined that this ground of appeal is patently misconceived and should be disregarded. Concerning the 5th ground of appeal in that the defence was not considered by the trial court, the attorney contended that this ground was misconceived as well. That the trial court has indicated in the judgment that the defence case was too general to cast doubt on the prosecution case. Therefore, it is clear that the defence case was considered. The attorney didn’t respond to the allegation pertaining belated reporting of the crime and arraignment in court. In responding to the 7th ground of appeal alleging that the case was not proved beyond reasonable doubt, the attorney argued that the trial court 7 considered the testimonies of PW1, PW2, PW3 and PW4 in their entirety and reached the conclusion that the evidence was watertight to ground conviction. Hence, she strongly supported the conviction made by the trial court. She prayed the appeal herein to be dismissed for want of merit. Now it is my turn to determine the appeal herein. I would canvass the ground of appeal in seriatim commencing with the 1st and 2nd grounds of appeal which the appellant argued together. In the 1st limb, it is alleged that the trial court convicted the appellant based on the incredible evidence of PW2 (the victim). And, in the 2nd limb, it is alleged that the trial court convicted the appellant based on the unreliable evidence of visual identification/recognition adduced by the victim. Unarguably, the prosecution was obliged to prove that the victim was raped, and the offender is none other than the appellant. For the first element, the prosecution was obliged to prove that there was the penetration of the appellant's male organ into the victim's vagina as per section 130(4) (a) of the Penal Code. It is trite law that the standard of proof required by law is proof beyond reasonable doubt. Likewise, it is trite law that a conviction cannot base on the weakness of the defence but on the strength of the 8 prosecution case, as it is not the duty of the accused to prove his innocence. In the same vein, it settled law that the best evidence in rape cases is that of the victim. See the cases; Selemani Makumba vs. Republic TLR [2006] 379; Jilala Justine vs. Republic (Criminal Appeal 441 of 2017) [2021] TZCA 421; Galus Kitaya vs. Republic (Criminal Appeal 196 of 2015) [2016] TZCA 301 and Godi Kasenegala vs. The Republic, Criminal Appeal No. 10 of 2008, CA (both unreported)]. The evidence adduced by the victim is the evidence of visual identification/recognition. It is settled law that visual identification evidence implicating a stranger or a previously known person, made under unfavourable conditions (such as at night) is of the weakest kind and unreliable. Hence, such evidence should only be acted upon after all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence is obviously watertight. See the cases: Waziri Amani vs. Republic [1980] TLR 250, Shamir s/o John vs. Republic, Criminal Appeal No. 166 of 2004, CA (unreported); Felician Joseph vs. Republic, Criminal Appeal No.152 of 2011 and Philemon Jumanne Agala @J4 vs. 9 Republic (Criminal Appeal No. 187 of 2015) [2016] TZCA 278, among others. It is likewise a law of this land that the evidence of recognition is more reliable than the identification of a stranger. See the cases; Jaribu Abdalla vs. Republic, Criminal Appeal No. 220 of 1994, CA (unreported); Yohana Kulwa Mwigulu & Others vs. Republic (Criminal Appeal 192 of 2015) [2015] TZCA 30 and Philemon Jumanne Agala @J4 vs. Republic (supra) in this respect. Now, having revisited the guiding principles above, I revert to the case at hand to determine whether it passes the tests enunciated above. It is the testimony of PW2 that on 20/02/2021 between 20;00 hrs and 21:00 hrs, she went to buy soap at the nearby shop. She passed near the accused’s saloon where she greeted him. She knew the appellant by the name “Choriso.” His saloon is likewise known by his name “Choriso.” When she was coming back home, having approached her residence, someone grabbed her from behind; then subdued and dragged her to the nearby unfinished building. He stripped her clothes, bent her and forced his penis into her vagina. The victim had the opportunity to observe her assailant by the aid of electric light which blazed from the nearby building and identified him as “Choriso,” the 10 appellant herein. When the appellant satisfied his lust, he released her and disappeared. The victim went home and reported the crime to his father, PW1 herein. She mentioned the appellant by name, resulting in his immediate arrest the following day. One, Mohammed Omary Ndongo (PW1 herein), the victim’s father, corroborated the victim’s testimony as thus: He was awakened by his son and informed that the victim having returned home from the shop, collapsed on the ground. He administered first aid to the victim and she regained her consciousness. He called upon her to explain what had transpired. The victim enlightened PW1 that a man subdued and dragged her into the unfinished building where he raped her. PW1 deponed that the victim mentioned the appellant herein whom he knows very well as he owns a saloon near his residence. PW1 had observed the victim bleeding from her genitalia when she was accounting for her misfortune. PW1 had attempted to trace the appellant but failed to locate him. Thus, he reported the incident to the police station where he was supplied with PF3 and escorted the victim to the Hospital at Mbagala. 11 Further, the testimonies of PW1 and PW2 were corroborated by the evidence adduced by one Clolu Dingoi, the medical practitioner, who examined the victim. He enlightened the court that she observed the victim's clothes soaked in blood. And upon examination, he found the victim with ruptured vagina. He stitched the victim’s genitalia and administered the victim with antibiotic and HIV transmission prevention medicines. Indeed, the PF 3 which was admitted in evidence as exhibit P.2 speak volumes in that the victim’s vulva was found with stained blood, laceration at six o’clock deep (2.5 cm) with active bleeding. PW3 opined that given the observations he made on the victim’s genitalia; the victim’s vagina was penetrated. Given the foregoing factual matrix, I have the following observations; One, the victim was well familiar with the appellant herein. Both key witnesses (PW1 and PW2) enlightened the trial court that the appellant worked in the saloon in their neighbourhood. Two, on the fateful night, the victim had seen the appellant and greeted him when she was going to the shop. Three, the victim told the trial court that there was a building near the crime scene with electric light which illuminated the scene and enabled her to identify the appellant. As aforesaid, the evidence of recognition is more reliable than the 12 identification of a stranger [Philemon Jumanne Agala @J4 vs. Republic (supra)]. Four, the victim mentioned the appellant at the earliest opportunity by name resulting in his immediate arrest. The ability to mention the names of the suspects of crime at the earliest opportunity is an assurance of the witness's reliability [Marwa Wangiti Mwita & Another v. Republic (2002)] TLR 39. Five, the testimony of PW3 and the testimony ascertained that the appellant was sexually assaulted. Six, in his defence, the appellant made a general and evasive defence refraining to controvert grave accusations made against him by the victim. In view of the above observations, I am of the considered view that the evidence of recognition made by the appellant strongly implicated the appellant. The appellant failed to controvert the prosecution case but made a general denial of the accusation made against him. Hence, I find no plausible ground to fault the conclusion of the trial court. The 1st and 2nd grounds of appeal fail. Likewise, the discussion above disposes of the 3rd and 7th grounds of appeal. I proceed to canvass the 4th ground of appeal. It is the appellant's complaint that the learned trial magistrate erred in law and fact for failure to consider 13 that the arresting officer was not called to testify on how the appellant was arrested. This ground of appeal need not detain me. PW1 enlightened the trial court that the appellant was arrested by the public having got wind of the crime he committed. The appellant himself had admitted during his defence that he was arrested by a school of people. Be that as it may, I find no injustice occasioned by omission to procure the people who arrested the appellant to testify in court. The appellant has not enlightened this court on how the omission prejudiced him. I would likewise, find this ground of appeal without substance. It is the appellant’s charge in the 5th ground of appeal that the learned trial magistrate disregarded his defence. Admittedly, failure to consider the defence case is fatal [Halid Hussein Lwambano vs. Republic, Criminal Appeal No. 473 of 2016 (2019) TZCA 96 and Paulo Maduka & Another vs. Republic (Criminal Appeal 110 of 2007) [2009] TZCA 69]. However, in this case, as aforementioned, the record speaks volumes in that the trial magistrates considered the defence case and reached the conclusion that the defence has totally failed to raise any scintilla of doubt on the prosecution case. I have the same observation. It is apparent on the face of the record that during his defence, of all the grave accusations made against him, the 14 appellant merely conceded he was a barber and deponed on facts pertaining to the time he closed his saloon (10: 40 pm) and how he was arrested. Thus, I have nothing to reconsider in the defence made by the appellant. This ground of appeal fails as well. Lastly, in respect of the 6th ground of appeal, the appellant charged that the trial magistrate erred in law and fact in failure to consider the delay occasioned in reporting the crime to the police from 20/01/2023 to 23/01/2021. However, contrary to this allegation, in his written submission the appellant changed course and alleged that he was not handed over to the Court from 20th January, 2021 to 23rd of January ,2021 to 23rd January, 2021; hence, stayed in the police custody beyond the period prescribed by law. Upon scrutiny, I observed that the details on the PF.3 entail that the case was registered at the police station on 21st January, 2021. This fact correlates with the testimony of PW1 in that he reported the crime during the later hours of darkness on 21/01/2024. Thus, there was no delay on the part of the complainant in filing report to the police. Otherwise, I have no means to ascertain the allegation in that the appellant was held in police custody beyond the prescribed period. Be that as it may, the trial court 15 cannot be blamed for the failure on the part of the prosecution to charge the appellant timely. Finally, in view of the reasons endeavoured to be given herein above, I would find the appeal herein devoid of merit. Consequently, I hereby dismiss the appeal herein in its entirety. The conviction and sentence entered by the lower court are hereby upheld. So ordered. DATED at DAR ES SALAAM this 28th day of April, 2023. O. F. BWEGOGE JUDGE 16