t LWITIKO ADEN

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB-REGISTRY

AT MBEYA CRIMINAL APPEAL NO. 20215 OF 2024 (Originating from the District Court of Chunya at Chunya in Criminal Case No. 72 of 2021) LWITIKO ADEN MWAMKAMBA................................................... APPELLANT Versus THE REPUBLIC..................................................................... RESPONDENT

JUDGMENT 5th & 30th August 2024 TIGANGA, J. In this appeal, Lwitiko Aden Mwamkamba (the appellant) challenges the decision of the District Court of Chunya rendered in Criminal Case No. 72 of 2021. In that case, the appellant was arraigned and convicted of the offence of rape, contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code Cap. 16 R.E. 2019 (Now R.E. 2022). It was alleged in the particulars of the offence that about 22nd March 2021 at Lesyelo Village within Chunya District and Mbeya Region, the appellant had carnal knowledge of one A d/o M (full names withheld), a woman aged 75 years without her consent. The appellant pleaded not guilty to the charge. The case went to a full trial, and at the end, the trial court i was satisfied with the prosecution evidence, it thus convicted the appellant and sentenced him to serve a jail term of 30 years. To bring home what triggered the arrest arraignment and prosecution of the appellant, the background of the case as can deciphered from the record is important. From the record, the prosecution case was that; the victim (PW1) has a farm in Lyeselo village where she used to farm. And there is a house she used to sleep when she goes for farming. On the incident date, on 22nd March 2021, she was alone sleeping in the house during night hours. The appellant called her to open a door and lead him to a way going to one Magulu

whom PW1 did not know. PW1 refused to open the door. After the call had borne no fruit, the appellant decided to push the door and enter inside the house. With the aid of a solar light that was illuminating in PWl's house, she managed to recognize the appellant as the two were very familiar. Then, it turned up miserable when the appellant fell PW1 down, held her firmly on the neck, undressed her then inserted his penis into her private parts. When the appellant was continuing with the evil act of ravishing her, some passersby were heard talking from outside, then the appellant released PW1 and ran away. Thereafter, PW1 managed to go to her neighbours who took PW1 to her son. While there, she narrated what 2 befallen her and mentioned the appellant to be the ravisher. The appellant was then traced, arrested, and taken to Lupatingatinga Police Station where he was interrogated before being arraigned to the trial court to face the charge. In his defence, the appellant disassociated himself from the commission of the offence. He told the trial court, without stating the date, that he had a dispute with a man named Nuhu at a pombe shop, but the dispute was resolved. However, another person appeared and claimed that the appellant was the one who had raped his mother. The appellant was then severely beaten and tortured before being taken to the police station, where he admitted to

raping PW1 out of fear of being killed. He pleaded for justice, maintaining that he had never committed the offence and pointing out that PW1 had contradicted herself by stating she was raped on 22nd February 2021. He also noted that no witness had seen him raping the victim, nor was there a letter from the local leader indicating that he had been sought. As I have mentioned before, the trial court convicted and sentenced the appellant. Dissatisfied with the conviction, the appellant is now appealing to this court, seeking to have the conviction quashed and the sentence set aside. The appeal is based on six grounds as follows: 3 1. That the trial court erred in law when it convicted and sentenced the appellant without solving the issue of visual identification done by PW1 as all the remained witnesses’ testimonies were (sic) hearsay only.

2. That the trial court erred in law when convicted and sentenced the appellant without that (sic) if PW1 was taken by a neighbour to her son and mentioned the name of her rapist, why the said neighbour was not called to corroborate her story?

3. That the trial court erred in law when convicted and sentenced the appellant without taking into account that the cautioned statement exhibit PE2 was admitted without being assessed if it being (sic) complied with the law.

4. That the trial court erred in law when convicted and sentenced the appellant without considering the evidence of PW3 a clinical officer his examination of PW1 is very doubtful as he failed totally to mention his instruments which enabled him to conducted (sic) a good and correct examination.

5. That the trial court erred in law when convicted and sentenced (sic) the appellant without evaluating deeply the evidence of the prosecution and convicted the appellant unlawfully. 4 6. That the defence of the appellant was not considered by the trial court as the prosecution failed to prove its case as per law. At the hearing, the appellant appeared in person without legal representation while Ms. Zena James learned State Attorney appeared for the respondent/Republic. The appeal was argued orally. When the appellant was invited to argue his appeal, he opted for the learned State Attorney to start. Arguing against the appeal, as to the 1st ground of appeal that identification by PW1 was not watertight, Ms. James was of the view that the identification was watertight. In support of her contention, she referred to page 10 of the proceedings that PW1 positively identified the appellant, she said to know him even before the faultful night, as was a casual labour on a tobacco farm, therefore, his face was very familiar. According to Ms. James, the visual identification principle comes to an issue where a person is said to be seen for the first time. However, in the instant case, the appellant and PW1 knew each other and PW1 knew even the appellant's name to be Lwitiko. She further said identification was not an issue in the trial court. Her contention is that

visual identification is when the witness sees the suspect for the first time, Ms. James cited the case of Jumapili Msyete vs The Republic, Criminal 5 Appeal No. 210 of 2014 CAT at Mbeya. She said that identification should be differentiated from recognition which implies person being familiar to each other. She went on that to establish recognition some elements must exist such as that the witness knew the accused before, the light available and source of it, and the time spent observing him. According to her, the elements existed in the present case. Moreover, Ms. James further argued that PW1 knew the appellant before, there was a solar light illuminating enough to identify him, and due to the nature of the act of rape, there was enough time to identify him. Thus, that evidence was enough to favour identification, hence conviction and sentence were well founded. As to the 2nd ground of appeal which is to the effect that a neighbour witness was not called, Ms. James submitted that section 143 of the Evidence Act [Cap. 6 R.E 2022] provides that no certain number of witnesses is required to prove a fact. However, in rape cases, evidence of a reliable witness can only base a conviction. Thus, non-calling a neighbour did not affect the prosecution evidence. Arguing the third ground of appeal, which asserts that the trial court did not adhere to the law in admitting the cautioned

statement (exhibit PE2), Ms. James stated that since the statement was admitted without 6 objection from the appellant, the trial court had no choice but to admit it. She cited the case of Mohamed Clavery vs The Republic, Criminal Appeal No. 47 of 2017, CAT DSM, noting that an issue not raised at the trial cannot be raised on appeal. Therefore, this complaint should not be considered. Ms James further pointed out that the appellant did not cross- examine the legality of the cautioned statement. Regarding the fourth ground of appeal, which concerns PW3's failure to explain the instrument used to examine PW1, Ms. James maintained that the essence of the evidence was to establish the presence of sexual intercourse, and the PF3 was admitted without objection from the appellant. She referred to the case of Hatari Masharubu vs The Republic, Criminal Appeal No. 590 of 2017, CAT at Mwanza (unreported) on the effect of failing to cross-examine a witness on an important issue Regarding the fifth and sixth grounds of appeal, Ms. James argued them together, asserting that the evidence from both parties was evaluated and analysed, and that the prosecution proved the case beyond reasonable doubt. She alternatively requested that, as the first appellate court, this court re-evaluate the evidence in accordance with section 388 of the Criminal Procedure Act [Cap. 20 R.E. 2022] (the CPA) and the

case of Peter John vs The Republic, Criminal Appeal No. 4 of 2024, HCT at 7 Musoma. She concluded by requesting that this court dismiss the appeal and uphold the conviction and sentence imposed by the trial court. In rejoinder, the appellant contended that there was no evidence from the village chairman to prove the commission of the offence. He therefore requested that his grounds of appeal be adopted and that the appeal be allowed. I have considered the grounds of appeal, the arguments of the learned State Attorney, the record, and the law. The grounds of appeal will be addressed in the following order: starting with the third and fourth grounds, and then merging the first and second grounds with the fifth and sixth grounds, as they all relate to matters of fact concerning the proof of the case. The third ground concerns the complaint that the cautioned statement, exhibit PE2, was admitted without considering whether it complied with the law. Ms. James challenged this complaint on the grounds that, the appellant did not object to its admission when PW4 sought to tender it. The record confirms this. Additionally, the appellant has not specified in what aspect the exhibit failed to comply with the law. In these circumstances, the appellant's complaint is too vague for this court to effectively address. Even if the complaint had been clearly 8 articulated, this court would still

be unable to resolve it, as it was not raised before the trial court. In the case of Mashaka Juma @ Ntatula vs The Republic (Criminal Appeal No. 140 of 2022) [2022] TZCA 506 (15 August 2022) (Tanzlii), a complaint similar to this was raised. The court held inter <?//;? that: "... anomalies relating to confessions intended to be tendered in court are required to be raised at the time of their tendering in court. This is important to enable the court to determine whether or not to conduct an inquiry/trial within a trial to ascertain them. ...Failure to object to its admissibility at the time of its being tendered deprived the trial court and the prosecution the chance to consider the objection which might have been raised as per section 169 (1) and (2) of the CPA which essentially provide for the manner of dealing with admission or otherwise of evidence obtained in contravention of the law." With reference to the above law, the third ground of appeal falls short. It is therefore dismissed for lack of merit. Regarding the fourth ground of appeal, the appellant complained that PW3, the doctor who examined the victim, did not specify the instrument used to examine PW1.1 must admit that I did not fully grasp the nature of the appellant's complaint. Nonetheless, Ms James maintained that the essence of PW3's evidence was to establish the 9 presence of sexual intercourse, and the PF3

was admitted without objection from the appellant. I concur with the learned State Attorney that the role of PW3's evidence was to establish penetration. That is precisely what he did by presenting the PF3, exhibit PEI, to prove this fact—nothing more, nothing less. Specifying the nature of the instrument used in the medical examination is neither a standard practice nor a legal requirement. On these grounds, this complaint also lacks merit and is dismissed. Now, I turn to the first, second, fifth, and sixth grounds of appeal. Collectively, these grounds raise the complaint that the prosecution did not prove the case to the required standard. The reasons given are that the trial court did not properly evaluate the evidence, as the identification was not watertight, a material witness was not called, and the defence evidence was not considered. I need not restate the well-understood principle in criminal cases that the burden of proof lies upon the prosecution and must be met to the standard of beyond reasonable doubt. This burden never shifts to the accused person. This principle is clearly outlined in Hezron Ndone vs Republic (Criminal Appeal No. 263 of 2021) [2024] TZCA 15 (6 February 2024) (Tanzlii), where it was held at page 12 that: io "It is momentous to state that, in our criminal justice system like elsewhere, the burden of proving a charge against an accused person is

on the prosecution. This is a universal standard in all criminal trials and the burden never shifts to the accused. As such, it is incumbent on the trial court to direct its mind to the evidence produced by the prosecution in order to establish if the case is made out against an accused person. This principle equally applies to an appellate court which sits to determine a criminal appeal in that regard..." In this matter, the appellant complained that the identification was not watertight. In response, Ms James maintained that this complaint was not among the issues addressed in the trial court. She also argued that the principle of visual identification becomes relevant when a witness claims to have seen an accused person for the first time. I agree with the first contention but differ on the latter. This is because visual identification becomes an issue if the alleged offence is committed under unfavourable conditions or at night. Although the issue of identification was not raised in the trial court, as correctly argued by Ms James, this being the first appellate court has the power to rehear and re-evaluate the evidence. See, Hassan Mzee Mfaume vs. The Republic [1981] T.L.R.. 167. 11 The evidence presented by the prosecution, specifically PWl's testimony, indicates that the offence was alleged to have occurred at night while PW1 was asleep. PW1 testified that she identified

the appellant by the light of a solar lamp, which was sufficient to see him. The law is clear that evidence of visual identification in offences committed at night or under unfavourable circumstances is considered the weakest and least reliable. See, Waziri Amani v. R [1980] T.L.R. 250. "Evidence of visual identification is not only ofthe weakest kind, but it is also most unreliable and a court should not act on it unless all possibilities of mistaken identity are eliminated and it is satisfied that the evidence before it is absolutely watertight". As for this case, I have thoroughly read the evidence of PW1. She said she knew the appellant by face and name as he worked in the nearby farm which was not at controversy as the appellant did not refute. In Ms. James' view, there could be no mistaken identification in the circumstances that the two were familiar to each other and that there was enough light and the duration of time was enough. I may add that there was proximity due to the nature of the offence of rape where zero distance caused by physical contact must be maintained. 12 Notwithstanding of those circumstances, it is also the law that naming a culprit at the earliest opportunity signifies credence on the part of an identifying witness. See Method Leodiga Komba @ Todi & Another vs The Republic (Criminal Appeal No. 150 of 2021) [2024] TZCA 117 (21 February 2024)

(Tanzlii). In this case, it is stated that PW1 named the appellant as Lwitiko to PW2. And PW2 testified that he started tracing the appellant following his being mentioned by the victim and he managed to apprehend him. But he (PW2) did not remember when he apprehended him. Reading the evidence of PW4, the appellant was taken to him to record his cautioned statement on 03rd April 2021. This means it is the date the appellant was arrested as there is no other date to the effect and the offence is alleged to have been committed on 22nd March 2021. Now, the question is, if the appellant was familiar with the PW1 and PW2 what was the reason for late apprehension? According to PW1, the appellant was traced by PW2 but was hiding. Why she believed he was hiding is not in the evidence. Also, PW2 said he was searching for him until he apprehended him and took him to the Police station. However, PW2 did not explain where he was tracing the appellant. Considering that the appellant is said to be working at a nearby farm to where the offence 13 is alleged to be committed, and in the absence of an explanation from PW2 as to how and where he was tracing the appellant or PW1 state how he knew he was hiding, I find the time spent in arresting him raises a doubt as to the identification and earlier naming of the appellant. The law is that an unexplainable delay to arrest a known suspect casts

doubt on the prosecution case. See. Tipai Kilusu Lendendi & Another vs The Republic (Criminal Appeal No. 397 of 2020) [2024] TZCA 207 (20 March 2024) (Tanzilii). Yet, there is the appellant's complaint about the non-calling of the neighbour who is said to have assisted taking PW1 to PW2 in the incident night. According to Ms. James non-calling him did not affect prosecution evidence as it is not the number of witnesses but the credibility and weight of evidence that matters. As much I concur with her on the position of the law about the number of witnesses and weight of evidence, in my view, for this case the neighbour was a material witness as he could have cleared doubt that indeed, PW1 went to him in the said night and complained to have been raped and actually named the person who raped her. Again, there is evidence of taking PW1 to the Police station and obtaining PF3. However, neither PW1 nor PW2 testified if they reported 14 the incidence of rape to the Police. And what measures the Police took. And if the Police received the report, why tracing the culprit was left in the hands of PW2 instead of being dealt with by the Police? Additionally, the prosecution tendered two exhibits, a PF3 and a cautioned statement (exhibit PEI and PE2 respectively). In exhibit PEI for example, the Police issued it filling in the alleged offence section that is reported to have been

strangled in Kiswahili language that "anadaiwa kukabwa. Naomba achunguzwe na tupate majibu" That means at the Police the offence of rape was not reported. Additionally, exhibit PEI indicates that PW1 had multiple cut wounds on her right thumb and left knee, which were not mentioned during PWl's testimony. Furthermore, exhibit PE2 reveals that the appellant claimed he held a knife and threatened to kill PW1 while assaulting her. He also stated that he covered her mouth to prevent her from raising an alarm and that he raped her until he was satisfied. However, PW1 did not testify to these details. Instead, she mentioned that while the appellant was still assaulting her, she heard passers-by talking, which caused the appellant to flee. 15 These discrepancies and omissions significantly undermine the prosecution's case. Had the trial court considered these issues, it might not have concluded that the case was proved beyond reasonable doubt. Given the unresolved questions, I am convinced that the prosecution did not meet the burden of proof required. Consequently, I find the appellant's complaint that the trial court failed to thoroughly evaluate the prosecution evidence to be valid. It is also a principle that where doubt arises in the prosecution case, it should be resolved in favour of the accused. See the case of Akwino Malata vs. The Republic, Criminal Appeal No. 438 of 2019 [2021] TZCA 506 (21 September 2021). In light of the above discussion, I hereby allow the appeal, quash the judgment, and set aside the sentence. I also order the immediate release of the appellant, Lwitiko Aden Mwamkamba, from custody unless he is held for other lawful reasons. It is so ordered DATED and delivered at MBEYA on this 30th day of August 2024. 16