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. 24669 OF 2024 (Arising from the Judgement of the District Court of Kibaha (Hon. F.L. Kibona, RM) dated 14th June 2024 in Criminal Case No. 40411 of 2023) _________ RAMADHANI IDDY PHERY…………………….…….….. APPELLANT

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

JUDGEMENT Date of last order: 25th November 2024 Date of Judgement: 17th December 2024 MTEMBWA, J.: In the District Court of Kibaha, the Appellant was arraigned for the offense of rape contract to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code, Cap 16, R.E 2022 in the first count. It was alleged that on 1st March 2023, at Jawa Kikongo area within Kibaha District in Coast Region, the Appellant had sexual intercourse with the woman (name withheld) without her consent. On the second count, the Appellant was arraigned for the offense of assault causing actual bodily harm contrary to section 241 of the Penal Code (supra). It was alleged that on the same date and place, the Appellant assaulted the victim (name withheld) with Machete by cutting her on the left arm and elbow, causing 1 her to suffer actual bodily harm. The Appellant pleaded not guilty to the charge on both counts. Consequently, the prosecution fronted six (6) witnesses and tendered four (4) exhibits. The Appellant (the accused by then) relied on his affirmed testimonies and tendered no real or documentary evidence. Having evaluated the evidence adduced during hearing, the learned trial Magistrate was satisfied that the prosecution proved the offenses beyond reasonable doubt and proceeded to convict and sentence the Appellant to serve thirty (30) years of imprisonment in the first count and one (1) year imprisonment in the second count. The two sentences were to run concurrently. Dissatisfied, the Appellant has laid before this Court the following grounds of appeal, and I quote in verbatim; 1. The Hon. Magistrate of the trial court was bias while convicting and sentencing the appellant after failure to accord sufficient weight on the defence evidence of the appellant (DWI).

2. The Hon. Magistrate of the trial court erred in law and fact in convicting and sentence the appellant based on the evidence of visual identification of PW1 which was poor, shaky and below the standard for correct identification.

3. The Hon. Magistrate of the trial court erred in law and fact by convicting and sentence the appellant based on prosecution exhlbit P4 which was contrary to the requirement of the law. 2 4. The Hon. Magistrate of the trial court erred in law and fact in convicting and sentences the appellant while prosecution failed to tender material witness.

5. The Hon. Magistrate of the trial court erred in law and fact by convicting and sentence the appellant based on prosecution case which was not proved beyond reasonable doubt. When the matter was called before me for orders on 15th October 2024, the Appellant appeared in person while Mr. Daudi Basaya, the learned state attorney, represented the Respondent. By consent, the parties agreed to argue this Appeal through written submissions. However, on 25th November 2024, Ms. Neema Kwayu, the learned state attorney, reported to have been lately served with the Appellant’s submissions in chief. For justice to prevail, I allowed the Respondent to file the reply submissions out of time. Having reviewed the records, I am satisfied that the parties adhered to the agreed schedule. When I was reviewing the grounds of appeal, I felt it apposite to examine the second one, which states that the trial court erred in law and fact in convicting and sentencing the appellant based on the evidence of visual identification of PW1, which was poor, shaky and below the standard for correct identification. Arguing on the second ground of appeal, the Appellant forcefully submitted that the evidence given did not meet the threshold in Waziri 3 Aman’s case on visual identification. Considering the ingredients stipulated therein, the Appellant argued that it was apparent that the assailant was not

correctly identified at the area of the scene. He referred this Court to page 4 of the proceedings where the victim made some instinct statements. He cited the case of Chokera Mwita vs. Republic, Criminal Appeal No. 17 of 2010, where the Court insisted on the need to explain the intensity of the light to avoid mistaken identity. To fortify further, he cited the cases of Watende Sultan Mwingo and 3 others vs. Republic, Criminal Appeal No. 232 of 2012, and Philemon Jumanne Agala @ J4 vs. Republic Criminal Appeal No.187 of 2015. Based on the above, the Appellant faulted the testimony of PW1 (the victim) as she did not mention the caliber of the torch nor its capacity to enable the Court to investigate on its intensity. He added further that it was almost impossible to identify the assailant, who also had a torch illuminating the victim. He implored this Court to find out that the identification was based on suspicion. In response, Mr. Daudi Basaya disputed the Appellant’s assertion that the evidence of visual identification of PW1 was poor, shaky, and below the standard for correct identification; instead, it was strong and correct and met the acceptable standards for reliable and correct visual 4 identification. He referred this Court to the testimony of PW1, who stated to have identified the Appellant with the help of the torchlight, which shined the area of the scene. The

Appellant picked up the torch and his machete and attacked the victim, dragged her to the bush, and raped her. The victim opted not to raise an alarm since the appellant threatened her with his machete. Having raped her, he allowed the victim to leave. The learned counsel referred this Court to page 4 of the proceedings where the victim testified to know the Appellant and his father. Mr. Basaya was not far from conceding to the very fact that the evidence of visual identification is of the weakest kind and most unreliable. As such, Courts must not act on it until all possibilities of mistaken identity are eliminated and the court is satisfied that such evidence is watertight. He recited the case of Waziri Amani vs. Republic (1980) TLR 250. He considered the identification made by the victim to be strong and watertight because she explained how the torchlight assisted her in identifying the Appellant and how he wore on the material night. Immediately, she mentioned the Appellant to PW2, who arrested him. The identification by the victim culminated in the arrest of the Appellant. Lastly, Mr. Basaya implored this Court to dismiss the second ground of appeal. It was very unfortunate that the Appellant did not rejoin. The question would be whether the victim correctly identified the 5 Appellant at the area of the scene. To appreciate this, I will look into her testimony. According

to PW1 (the victim), on 1st March 2023, she was at Kikongo area for agricultural activities with Binti Msokolo. While they were sleeping at night, they heard an alarm from outside and suddenly, one person, whose name she could not remember, took a torch that was by then shining in the room. Then, the Appellant (Iddi's son) entered the room, and she identified him with the help of the torchlight. The assailant then took the torch and used his machete to attack her. He dragged her to the bush, took his “Mdudu” and inserted it into her vagina without her consent. Having done that, the Appellant allowed her to go home. Later, she told her children including PW2. He further testified that he had known the Appellant and his parents (mother and father) for a long time. She identifies the Appellant in the dock. When recalled, PW4 tendered the witness statement of Hadija Hemedi @ Msokolo, which was tendered and admitted as Exhibit P4. I went through it and noted that it is a replica of the testimony of PW1. Hadija Hemedi was not familiar with the Appellant. She relied on the visual identification by the victim (PW1). Indeed, the prosecution evidence falls short of the following shortcomings: one, the intensity of the torchlight was not explained; two, 6 the time lapsed when the two confronted each other. It was not enough to say that the Appellant was recognized by the help of the

torchlight. The victim was supposed to go further and explain the intensity of the light to eliminate all possibilities of mistaken identity. The victim failed even to state whether the torch was on all the time up to when she was dragged to the bush where she was raped. Considering the evidence available, I am constrained to agree with the Appellant that the evidence of visual identification by the victim is full of uncertainties and cannot solely be a ground for conviction. The Court of Appeal in the case of Juma Hamad vs. Republic, Criminal Appeal No. 141 of 2014 (unreported), observed that: When it comes to the issue of light, clear evidence must be given by the prosecution to establish beyond reasonable doubt that the light relied on by the witnesses was reasonably bright to enable the identifying witness to see and positively identify the accused persons. Bare assertions that "there was light" would not suffice. In order to eliminate all possibilities of mistaken identity, the Court should consider whether the Appellant was correctly recognized at the area of the scene. This will take us to the criteria underscored in the case of Waziri Amani vs. Republic (supra), which are never old. 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 7 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. 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 victim claimed to know the Appellant and his parents for a long time. Based on this testimony, it is convincing that the Appellant and the victim were familiar with each other. In such circumstances, there is a question of recognition, which is safer and more reliable than identification by a stranger. However, its reliability is not absolute unless all possibilities of mistaken identity are eliminated. In that regard, the criteria for identification are never excluded when a witness claims to have recognized someone. In Shamir John vs. Republic, Criminal Appeal No. 166 of 2004 (unreported), the Court observed that: - Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the court

should always be aware that mistakes in recognition of close relatives and friends are sometimes made. 8 Having so observed and considered the evidence on records, I agree with the Appellant that evidence on visual identification is lacking to enable the Court to eliminate all possibilities of mistaken identity. Since the second ground of appeal suffices to dispose of this Appeal, I see no reason to discuss the remaining grounds of appeal. That said, the appeal is allowed. The conviction and sentence meted against the Appellant is hereby quashed and set aside. I order that the Appellant be released from the prison forthwith unless lawfully held. I order accordingly. Right of appeal fully explained. DATED at DAR ES SALAAM this 17th December 2024. H.S. MTEMBWA

JUDGE 9