CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM CRIMINAL APPEAL NO. 2852 OF 2024 (Arising from the Judgement of the District Court of Temeke (Hon. A.T. Millanzi, PRM) in Criminal Case No. 649 of 2022 dated 12th October 2023 _________ RAIS HASHIMU MANZI @ CHINGA…….…..……….…….….. APPELLANT

VERSUS REPUBLIC……………………………………..…..…….………...RESPONDENT

JUDGEMENT Date of last order: 21st October 2024 Date of Judgement: 18th November 2024 MTEMBWA, J.: This Appeal stems from the decision of the District Court of Temeke in Criminal Case No. 649 of 2022, where the Appellant was arraigned for an unnatural offense contrary to section 154 (1) (a) and (2) of the Penal Code, Cap 16, R.E 2022. It was alleged that on 16th November 2022, at Keko Machungwa area within Temeke District of Dar es Salaam Region, the Appellant had carnal knowledge of a boy aged fourteen (14) years (name withheld) against the order of nature. For purposes of this Appeal, I shall refer to the victimized boy as “PW1” and or, where necessary, “the Victim”. 1 The Appellant pleaded not guilty to the charge. Consequently, the prosecution fronted four (4) witnesses and tendered one (1) exhibit. The Appellant (the accused by then) relied on his affirmed testimony and tendered no real or documentary exhibit. Having evaluated the evidence adduced during hearing, the learned trial Principal Resident Magistrate was satisfied that the offense to which the Appellant was charged was proved beyond reasonable doubt. As such, he proceeded to convict and sentenced him to life imprisonment. Dissatisfied, the Respondent has laid before this Court the following grounds of appeal and I quote in verbatim; 1. That, the learned trial magistrate grossly erred in both law and fact in convicting the appellant based on the evidence of- Pwl (victim) whose evidence was illegally received in court the omission which renders the particular evidence unreliable and/or a nullity.

2. That, the learned trial magistrate grossly erred iri both law and fact in convicting the -appellant without sufficiently comply with the provisions of section 127(6) of the Evidence Act, Cap.6 RE 2022 before relying solely on the evidence of PW 1 (victim).

3. That, the learned trial magistrate grossly erred in both law and fact in convicting the appellant without sufficiently evaluate, analyze and consider the defence evidence the omission which resulted to a serious error [misdirection amounting miscarriage of justice and constituted a mistrial.

4. That, the learned trial magistrate grossly erred in both law and fact in convicting the appellant in a case where the 2 prosecution did not prove its charge against the appellant beyond all reasonable doubts as mandatorily required by law. When the matter was called before me for orders on 21st October 2024, the Appellant appeared in person while Mr. Cathbert Mbilingi, the learned State Attorney, represented the Respondent. By consent, the parties agreed to argue this Appeal through written submissions. However, it could appear that only the Appellant was able to adhere to the agreed filing schedule. The Republic opted not to file the reply submissions as ordered. As such, this is an exparte Judgement against the Respondent. In his written submissions in chief, having prefaced on what transpired at the trial Court, the Appellant added one more ground of appeal without leave of this Court. With respect, that has never been a way to go. Since the new ground of appeal is not part of the Petition of Appeal filed in this Court, and since it has been added without leave of this Court, I will not consider or determine it. In arguing the grounds of appeal, the Appellant preferred to argue them altogether. The Appellant faulted the trial Court for failure to comply with the provisions of section 127(2) of the Evidence Act, Cap 6 RE 2019. On this, he submitted that PW1 (victim), a

child of tender age, testified on oath however, the trial Court did not test him whether he understood 3 the nature and meaning of the oath. He added that, in several decisions, this Court had been emphasizing the need to adhere to the cited section by testing the child witness of tender age with the view to understand whether he/she understands the meaning and nature of an oath before his/her evidence can be taken on oath. The Appellant referred this Court to page 5 of the proceedings, where the trial Court seems to have not examined PW1 to understand whether he knows the meaning and nature of testifying on oath. He observed that failure to comply with the cited provisions of the law rendered the evidence of PW1 with no evidential value. He cited the case of Godfrey Wilson vs. Republic, Criminal Appeal No. 168 of 2018, Salum Nambaluka vs. Republic, Criminal Appeal No. 272 of 2018 and John Mkorongo James vs. Republic, Criminal Appeal No. 498 of 2020. Based on the foregoing arguments and cited authorities, the Appellant implored this Court to consider the grounds of appeal and ultimately set him free. As said, the Respondent unjustifiably opted not to file the reply submissions. Having considered the Petition of Appeal and the submissions in support thereof by the Appellant, the question would be whether an unnatural offense contrary to section 154 (1) (a) and (2) of the

Penal 4 Code, Cap 16, R.E 2022 had been proved beyond reasonable doubt. In Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a criminal case, the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt. This is in consonant with Section 3(2) (a) of the Evidence Act (supra). It follows, therefore, that a person is found guilty and convicted of a criminal offense because of the strength of the prosecution evidence against him, which establishes his guilt beyond reasonable doubt (see also John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296). In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, where it was observed that the first appellate Court must subject the entire evidence on record to a fresh re-evaluation to arrive at a decision that may coincide with the trial Court or may be different altogether. To effectively determine this Appeal, one needs to re-evaluate the evidence adduced by PW1 (Victim). While examined by the learned state attorney, PW1 testified that he is from Katolo, Geita Region. He came to Dar es Salaam to secure a job. Since he had no place to stay, he went to 5 the mosque at Keko

Machungwa, where he found people praying. At one point, he approached Aziz and told him he was looking for a job. He then slept in the said Mosque as he had nowhere to stay. In the morning, he again approached Aziz, the owner of the Mosque, who gave him breakfast at his Home. He promised to take him to the Madrasa. PW1 continued to testify that he used to sleep in the Mosque, where several people also slept. He met two people who required him to clean himself before sleeping. He cleaned himself and then went to sleep. After that, the Accused person came and told him his clothes were dirty, so he should follow him so that he could change them. He followed him. PW1 then undressed his shirt and trouser while the Accused was at his back. Suddenly, the Accused inserted his penis into PW1’s anus. He shouted for help. After the incident, he felt pain and he was not walking properly. Two people around the compound told him to go clean himself. When he cleaned himself, he saw blood oozing from his anus. “Niliona damu na ute mweupe mweupe.” Thereafter, PW1 explained what happened to the mosque watchman who gathered other people. He described how the responsible person looked like. He was put on “Musuli” and “sengredi nyeupe”. The Accused was like “Mbabu.” After that, PW1 was taken to the Accused’s house near the Mosque, and he identified him. PW1 added that 6 he was sodomized by the

Accused when he was undressing to change his clothes, which were very dirty at the time. PW1 testified that he did not know the Accused’s name. However, he knew his face. Cross-examined by the Appellant, PW1 insisted that the Accused was in “sengrendi and “white msuli” on the material day. The incident took place at 08:00 pm at night. Cross-examined further, PW1 testifies that three persons were in the mosque, including the Accused. But the other two did not the Accused when he was taking the victim to the first floor of the mosque. By that time, the watchman was asleep. The evidence of PW2, PW3, and PW4 corroborated the evidence of PW1. As said before, the learned trial Magistrate was satisfied that the offense was proved to the required standards, that is, beyond reasonable doubt. His reasoning is traceable from page 3 to 4 of the typed Judgment and I quote in verbatim; Having scrutinized the evidence of the prosecution and the defence the following are my findings that the instance took place at night and before the instance the victim and accused had a talk and a place had light of the electricity enabled the victim to identify and catch the accused face. Also, the accused and victim were the only persons present at the scene of the crime and that immediately the victim reacted the act and reported the instance soon thereafter a thing caused the accused to apprehended

and sent to the local leader and later at police station hence this present case. 7 (emphasis added) The learned trial Magistrate's observation cannot be traced from the evidence. According to the evidence, the incident took place at night; however, no one was able to state the source of light. The learned trial Magistrate's observation that there was a light was not stated by any of the prosecution witnesses. Similarly, the learned trial magistrate's observation that only the accused and the victim were at the area of the scene was brought into evidence by him. According to PW1, three persons, including the Accused, were in the Mosque. However, the other two did not see the Accused taking the victim to the first floor, where he sodomized him. From what I have endeavored hereinabove, it leaves no doubt that the learned trial Magistrate misapprehended the evidence adduced during the hearing as a result, he came up with such a conclusion. It is apposite that I refer to the guidelines on visual identification as stated in one of the everlasting and seminal decisions of Waziri Amani vs. Republic (1980) TLR 250, where the Court cautioned, on pages 251 to 252, that: evidence of visual identification, as Courts in East Africa and England have warned in a number of cases, is of the weakest kind and most unreliable. It follows therefore that no court should act on evidence of visual

identification unless all possibilities of mistaken 8 identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. The Court continued to note at page 252, that: Although no hard and fast rules can be laid down as to the manner a trial Judge should determine questions of disputed identity, it seems clear to us that he could not be said to have property resolved the issue unless there is shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would, for example, expect to find on record questions as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not. These matters are but a few of the matters to which the trial Judge should direct his mind before coming to any definite conclusion on the issue of identity. Waziri Aman’s case (supra) is one of the landmark cases on visual identification. However, as the Court also observed in that case, the factors listed therein were not exhaustive, and in each case, all the circumstances surrounding it must be considered. In

some cases, a list of factors has been expanded. In Jaribu Abdallah vs. Republic, Criminal Appeal No. 220 of 1994 (unreported), it was held: In matters of identification it is not enough merely to look at factors favouring accurate identification. Equally important is the credibility of witnesses. The conditions of identification might appear ideal but that is no guarantee against untruthful evidence. 9 And that; Eye witness testimony can be a very powerful tool in determining a person's guilt or innocence. But it can also be devastating when false witness identification is made due to honest confusion or outright lying. The crucial midpoint to consider was whether the Accused was identified correctly by the PW1 at the area of the scene. According to PW1, he did not know the Accused’s name but was familiar with his face. He described him as “mbabu” and said he was put on “White Msuli” on the material day. Since the incident occurred at night, the conditions favorable for identification were supposed to be clearly stated by PW1, considering that three persons were in the mosque, including the accused. In such circumstances, although it also depends on the credibility of the victim, the source of light (excellent or poor), the time under which PW1 was under observation and how long he knew the accused before the day of the incident were essential materials to be laid by the

victim. Having described the Accused as “mbabu” put on “White Msuli”, PW2 and his convoy and the victim went directly to the Accused’s House. Having arrived there, the Victim identified the Accused to be the one who sodomized him a few hours ago. Considering the circumstances, the matter was supposed to be reported to the police, who would have arrested the Accused and conducted an identification parade. At least that would have saved the day short of which the possibilities of mistaken 10 identity cannot be guaranteed. In the premises, I find it challenging to agree with the learned trial Magistrate's findings in this case. The evidence adduced leaves a lot to be desired, and as aforesaid, the possibility of mistaken identity cannot be eliminated. To that end, the offense to which the Appellant was charged was not proved beyond reasonable doubt. Thus, I set aside the conviction and sentence meted out against the Appellant. I order that the Appellant be immediately released from prison unless lawfully held. I order accordingly. Right of appeal fully explained. DATED at DAR ES SALAAM this 18th November 2024. H.S. MTEMBWA

JUDGE 11