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THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000011757 OF 2024 WANGALA S/O MAGANGA .............................. COMPLAINANT / APPELLANT / APPLICANT

VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT

JUDGMENT NKWABI, J 02/12/2024 & 22/01/2025 Seated at Uvinza, the district court convicted and sentenced the appellant for two offences. Initially, the appellant was charged with rape offence. Subsequently, the charge sheet was amended to contain the offence known as unnatural offence. The prosecution brought seven witnesses including the alleged victim of the offence and tendered exhibits which comprise of also a bicycle which is allegedly found near the scene of offences. The offences were allegedly committed by the appellant on 20th day of April, 2023 at Mtego wa Noti village within Uvinza district in Kigoma region the offences he committed against B.J., a woman aged 47. The appellant believes he is innocent. He is brandishing, in this Court, eight grounds of appeal which are that: 1. That the Hon. Trial magistrate erred in law and facts by convicting and sentencing the appellant as charged while the prosecution side failed to prove the charge beyond reasonable doubt as enjoined.

2. That, the trial magistrate erred in law and fact in convicting the appellant the hug sentence contrary to the statutory law as provides.

3. That the trial magistrate erred in law and facts in convicting the appellant relying on discrepancies evidence.

4. That exhibit P1 was not listed as among the exhibit to be tendered during the hearing of the case contrary to the law.

5. That, the honourable trial magistrate erred in law and facts by convicting and sentencing the appellant basing on the defective charge sheet which did not disclose ingredients of the charged offence as enjoined by law.

6. That the honourable trial magistrate erred in law and facts by convicting and sentencing the appellant without giving right to be heard. Page. 1 Hon... JOHN NKWABI 7. That the honourable trial magistrate erred in law and facts by admitting prosecution exhibits which was illegally procured.

8. That, the honourable trial magistrate erred in law and facts by convicting and sentencing the appellant while the judgment was erroneously reasoned as it did not consider the law. Relying on the above rationales of appeal, the appellant is beseeching this Court the appeal be allowed, convictions and sentences meted on him be respectively quashed and set aside. Besides he is invocating for his immediate release unless held for any other lawful cause, and any other relief or reliefs this honourable Court deems fit and just to grant. The appeal was called on for hearing. The respondent was represented by Ms. Rehema Mpozemenya, learned State Attorney. The appellant appeared in person, unrepresented. The hearing of the appeal proceeded by way of oral submissions. The appellant, in submission in chief, denounced the evidence was unsatisfactory and the witnesses of the respondent contradicted themselves. He thus pushed his appeal be allowed. He reiterated his exhortation in the rejoinder submission while adding that the sentence is excessive. Ms. Mpozemenya was firm that the trial court was correct in convicting the appellant because the respondent proved the case beyond reasonable doubt. She said, the refutation was about the 1st, 3rd and 5th grounds of appeal. She explained that the victim, PW.1, at page 16-20 of the proceedings gave evidence where she proved there was penetration. Ms. Mpozemenya parroted Seleman Makumba v. Republic [2006] T.L.R.

384. She added that PW.1’s evidence is corroborated by the evidence of the medical officer at page 47 of the proceedings. She too proved that the penetration was without her consent, pressed Ms. Mpozemenya. She went on to expound that the evidence of the victim at page 16 to 17 proves identification as the incident happened during the day, and she used to know the appellant because they used to live in the same village. Ms. Mpozemenya was sure as eggs is eggs that the offences were proved because the victim of the offences too reported the matter early as per Ahmed Said v. Republic, Criminal Appeal No. 291 of 2015, at page 14. She pointed that the husband of the victim (PW2) testified. She emphasized that the evidence of the respondent had no any discrepancies. Regarding the 2nd and 8th grounds of appeal, she argued that the sentences were in accordance with the law. Ms. Mpozemenya expressed her views on the 4th and 7th grounds of appeal regarding the exhibits, that the exhibits were listed, so the grounds of appeal are unmerited. She stressed that the exhibits were admitted in Court in accordance with the law. Page. 2 Hon... JOHN NKWABI Reverting to finally submit on the 6th ground of appeal, Ms. Mpozemenya maintained that this ground of appeal is unmerited because, the appellant did not say, he had any witness. At page 55 of the proceeding, he said he had no any witness and

he prayed to close his case. She pleaded with me the appeal be dismissed as it is unmerited and added that the respondent is not bound to bring all witnesses they mentioned during the preliminary hearing. Despite the refutations by the learned State Attorney, unfortunately, in my view, the appellant is correct that the evidence on the prosecution was deficient to prove the charge. It starts with the evidence in respect of the place where the offence was committed. While the charge sheet indicates that the offence was committed at Mtego wa Noti village, the evidence impliedly shows that the offence was committed in Ilalangulu village, which are quite distinct villages. There is no evidence to suggest that the two villages are the same. It is the stance of the law as amplified in Said Musa Soweni v. Republic, Criminal Appeal No. 93 of 2020, CAT that: “The law is settled that, a charge which is in material conflict with the witnesses’ testimonies materially shakes credence of the prosecution case and renders the prosecution case not proved to the required standard.” Regarding the above stance of mine in this appeal, the Court of Appeal has not been clearer than in the case of Abeid Masikiti v. Republic, Criminal Appeal No. 24 of 2015, (unreported) where it was underlined that: “If this (amendment of charge) is not done, the preferred charge will remain unproved and the accused

shall be entitled to an acquittal.” See also Issa Mwanjiku @ White v.Republic, Criminal Appeal No. 175 of 2018, CAT (unreported). If I may, nevertheless, go a step further, the appellant complained that a very important witness was not called to testify. The respondent maintained that it was not decorous for the respondent to call all witnesses it had listed and intended to call at the trial. I think the appellant is justified to whine for the respondent’s failure to call the one who had rented the bicycle who was a compellable witness. It is the bicycle which was used, by the respondent, to link the appellant with the offences. The witness, Judith, would have thrown light on several questions that are not resolved by the evidence about her hiring the bicycle why was she hiring it and letting her relative, the appellant, use it. In this respect, and for guidance, I reciteHussein Hassan @ Antiti v. Republic, Criminal Appeal No. 541 of 2021, CAT where it was stated that: “We have also considered complaints of the appellant on failure to call material witnesses. We have demonstrated above that; the deceased body was identified by relatives. The record of appeal is silent as to who are those relatives and their whereabouts. It is in evidence further that one Kombe had knowledge regarding the dead body at the crime scene. Again, his whereabouts is unknown. As if that was over, given

the nature of the offence, none of the local leaders testified, at least on account of witnessing the dead body in their locality. …” Page. 3 Hon... JOHN NKWABI It was, with outmost respect, wrong for the trial court to rely on hearsay evidence that PW4 was told by Judith that the appellant took the bicycle. The evidence about the bicycle leaves a lot to be desired because, the victim did not see it. It is very uncertain that those who went to the scene including the husband of the victim of the alleged offence did identify the culprit, else a detailed description of him ought to have been given by them when they reported to the police. Only the bicycle was linked to him after its owner was questioned by the police which was not done. The trial court should have accorded adverse inference for the respondent’s failure to call Judith as a witness. Of equal importance here is the law as stated in Jadili Muhumbi v. The Republic, Criminal Appeal No. 229 of 2021, CAT (unreported) thus: “What is normally done with hearsay evidence is to attach little or no value to such evidence while it remains on record. Vumi Liapenda Mushi v. Republic, Criminal Appeal No. 327 of 2016 (unreported).” Next, it appears to me that what the resident magistrate missed to understand from the defence of the appellant is that, in the circumstances of the case, the alleged offences were not committed and that

it is not up to the appellant to know what happened to the alleged victim of the offences. He suggests that the offences might have not happened due to the fact that the appellant might have been the lover of PW1. and she cannot reveal that because of fear she could be divorced or something else. She only alleged being raped because, she wanted to save her skin from. As to the claim of being carnally known against the order of nature, to the appellant’s conscious, no wonder the allegation was included later in the case. The appellant, in his defence went on to lament that the circumstances of the place where the offence happened is along the road, which suggests many people pass by, it is not only in residential area but also close to where the victim resides at a distance of thirty to forty paces from her home, where it is suggested that the members of her household were outside, why did she fail to raise an alarm? The incident is allegedly happened from 01:00 pm to 3:00 pm, a considerable period of about three hours, how come that no person passed by? How could she be easily held along a road without an attempt to run away? Why did she not fight him? All these questions which have no answers from the record tend to make a person think that it was just an encounter which the victim had accepted and invited the same. The dispute could have arisen from failure to honour promises

and who knows, maybe it could have caused by the victim knowing she could be asked questions or might have been seen by people. Unfortunately, all those moans of the appellant fell to the trial court which did not give the same any weight. It should be borne in mind beforehand that where a court of law entertains a doubt, in criminal case, the doubt should be resolved in favour of the accused person, in this case the appellant. See Hussein Hassan @ Antiti (supra) where it was underscored that: Page. 4 Hon... JOHN NKWABI “..., the foregoing evidence not only leads to multiple interpretations, but also creates doubts which, in our respect view, should benefit the appellant.” Focusing at the evidence and the proceeding of the trial court, would reveal that the prosecution imperfected the law regarding the description of the culprit which was articulated in Republic v. Ally [1971] H.C.D. No. 306 that quoted with approval the case of R. v. M.B. Alluis (1942) 9 EACA where it was underlined that: “That in every case in which there is a question as to the identity of the accused, the fact of there having been given description and the terms of that description are matters of the highest importance of which evidence ought always to be given, first of all of course by the person who gave the description or purports to identify the accused and then by the person to whom the description

was given …” In connection to the above position, in Swaleh Kalonga & Another v. Republic, Criminal Appeal No. 46 of 2001 (Unreported) (CAT) it was stressed that: “… With regard to the clothes, it is also our view that PW1’s evidence that she identified the appellants by the black clothes is hardly enough. No particular description or identifying marks of the clothes were given. So, we think this evidence would not serve any useful purpose in identifying the appellants. … for the foregoing reasons we allow the appeal.” The police, by conducting what appears to be an identification parade, seems to have had in mind the settled law that dock identification of an accused person by a witness who is a stranger to the accused has value only where there has been an identification parade at which the witness successfully identified the accused before the witness was called to give evidence at the trial as eloquently expressed in the case of Mussa Elias & 2 Others v. Republic, Criminal Appeal No. 172 of 1993, unreported, (CAT). Faced with corresponding facts like these at hand, in Omary Issa v. Republic, Criminal Appeal No. 11 of 1989, unreported, (CAT) the Court had these to say: “PW1 and 2 stated that before the incident they knew the appellants only by appearance, not by names… In these circumstances therefore the proper thing to do was for the police to conduct an identification

parade where PW1 and PW2 would identify the culprits. But it is clear from the evidence that no such parade was held in respect of the appellants. PW1 and PW2 identified those appellants only in police custody at the police station in dock during the trial. That was most unsatisfactory to say the least. …. It follows, therefore, that the purported identification of the appellants by PW1 and 2 merely amounted to dock identification or identification in police custody at the police station. It is obvious that such identification was of little or no value.” Page. 5 Hon... JOHN NKWABI But, the procedures of conducting an identification parade, in the present case, were dented while the procedures are clearly and comprehensively stated in various case laws. One of such cases is the case of Republic v. Mwango Manana (1936)3 EACA 29 which was approved in S. Musoke v. Republic (1958) EA 715. In the former case it was held that: “The person to be identified must be informed that he has the right to a lawyer or friend to be present when the parade takes place, the identifying witnesses should not have an opportunity to see the suspect before the parade takes place, the suspect should be placed amongst at least 8 persons, as far as possible of similar age, height, general appearance and class of life as himself, the suspect should be exercised that the identifying witnesses do not consult

each other until the parade is completed, the identifying witness must touch the person he identifies. Pointing a finger to him is not enough. At the termination of the parade or during the parade the suspect must be asked if he is satisfied with the manner the parade is being conducted, his reply must be recorded, in introducing the witness, he must be told that he will see a group of people who may or may not contain the suspected person, the witness should not be influenced in any way.” See also Omary Hussein @ Ludanga & Another v Republic, Criminal Appeal No. 547 of 2017, CAT (unreported) where it was authoritatively stated that: “In this case, we agree with both appellants and the learned Senior State Attorney that PW7 did not give any detailed description of the 1st appellant at the time he wrote his statement to the police which could have enabled him to identify the 1st appellant during the identification parade. In this regard, his identification evidence was vitiated.” Where an identification parade is marred by irregularities, such identification parade fails to add value to the prosecution evidence. That can be gleaned from Raymond Francis v. Republic [1994] T.L.R. 100. (CAT). In this case, the Court of Appeal stressed that: “…. For the identification parade, PW8 included 9 other people and the identifying witness (PW2) had not identified the appellant eg by

touching etc. It is also not indicated PW2 was given the option to indicate if he wanted to see those taking part in the parade walk, or hear them talk. Furthermore, from the evidence of PW8 and PW2, it is not clear if the appellant was asked if he was satisfied that the parade was conducted in a fair manner. In those circumstances, it appears to us that the identification parade was not carried out properly in terms of the applicable procedure as set out in the case of Rex v. Mwango S/O Manana (1939)3 EACA 29. As such it was of little value as evidence against the appellant.” See also Emilian Aidan Fungo @ Alex and Another v. Republic, Criminal Appeal No. 278 of 2009 CAT (unreported). Page. 6 Hon... JOHN NKWABI To be clear, too, the alleged victim knew the appellant only by face which necessitate an identification parade, but the parade was bad in law for including only four members to the parade. The description given by the alleged victim has discrepancy. While the witness told the police the culprit had a scar on the face, it turned, in testimony in court, that the scar was on the mouth. In the premises the evidence on the subject of the identification parade and that PW.1 identified the appellant at the identification parade is irrelevant and I obliterate it from the record. Though the appellant did not explain his wail that the prosecution evidence is contradictory to the

extent that it is irreconcilable. That criticism, on my evaluation of the evidence appear to be true. There is a contradiction as to when the bicycle was sent to the police station, whether it was on 20/04/2023 or on a later day as appears to be the suggestion of PW2, the husband of the victim who said they left the bicycle at home. In addition, when was PW.4 informed about the bicycle on 20/04/2023 by Theophil who was alone while PW.5 Gisango suggested that it was on 21/04/2023 and went together with Theophil. There is a conflict of the evidence about the distance where the offence was committed. PW.1 suggested that the offence was committed at a distance of 30 to 40 paces from her home but PW.5 suggested it was at a distance of 200 paces. PW.1 testified that the incident happened at Ilalangulu village but PW5 says the incident happened at Mtego wa Noti village. PW.1 suggests that she was held along a road while PW5 said it happened near a path. While PW.1 suggest that the accused used to ride on the bicycle regularly, PW.2 her husband, also peasant, had never seen the bicycle before. All these cause unanswered questions swirl. The appellant testified that the evidence was false and questioned why the victim was not heard raising an alarm while the place is near her home and family members were at home supposedly, outside the house. He suggests that weaknesses in the defence

of the accused person could not be the basis of conviction. I agree with him, not on my fantasy but the authority of Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004, CAT (unreported) where it was stated that: “Good reasons for not believing a witness include the fact that the witness has given improbable evidence, or the evidence has been materially contradicted by another witness or witnesses.” The above authority is reinforced by Ndorosi Kudekei v. Republic, Criminal Appeal No. 318 of 2016, CAT, (unreported) where it was underscored that: Page. 7 Hon... JOHN NKWABI “The question we ask ourselves on the glaring contradictions above was, as to why there was a change of mind by PW4 and PW5 in their testimonies before the court, from the statements which they had earlier on made at the Police Station? For whatever reasons that might have occasioned it, the situation could not fail to let one raise eyebrows and be tempted to think that there was something sinister. Such situation did give credence to the doubt raised by Mr. Materu, in regard to the cautioned statement of the appellant that, the last sentence which reads “nipo tayari kwenda kuonyesha mwili huo na simu”, was most probably added at a later time for a purpose”. I am quite alive with the position of law thatthe evidence of the victim is the primary evidence; the other pieces of evidence could only come in

as corroboration as handed down in Hangwa William v. Republic, Criminal Appeal No. 117 of 2009 (CAT) Mwanza (unreported) but of equal importance is the warning of the same apex Court of the land in Mohamed Said v. Republic, Criminal Appeal No. 145 of 2017, CAT (unreported) where it stated thus: “However, we wish to emphasize the need to subject the evidence of such victims to scrutiny in order for courts to be satisfied that what they state contain nothing but the truth. … We think that it was never intended that the word of the victim of sexual offence should be taken as gospel truth but that her or his testimony should pass the test of truthfulness. We have no doubt that justice in cases of sexual offences requires strict compliance with rules of evidence in general, and S. 127 (7) of Cap. 6 in particular, and that such compliance will lead to punishing the offenders only in deserving cases.” In my view, I have lived up to the expectations of the Court of Appeal as pronounced in Mohamed’s case (supra). I, faced with the above contradictions, unanswered questions and probably falsehoods, I am forced to borrow wisdom from a maxim that states that: Falsehood is invariably the child of fear in one form or another.” So, if PW.1 told even one lie, then that lie resulted from a fear. The answer to the question that immediately follows, what should be done to a person who tells a

lie, is not far-fetched. It is easily obtained from an adage that goes, “You can best reward a liar by believing nothing of what he says.” The above is sufficient to dispose of the case in favour of the appellant. But I need address one of the complaints of the appellant regarding the respondent’s case. That bemoan is no other than that the respondent tendered exhibits which were not listed after the preliminary hearing. That protestation however, gets an answer directly from Jackson Daudi v. Republic, Criminal Appeal No. 111/2002, CAT, unreported where it was stated that: “The question therefore is whether the non-production and listing at the preliminary hearing of the written statement, Exhibit ‘B’, in which the confession was contained precluded the prosecution from producing it at the Page. 8 Hon... JOHN NKWABI trial. (p.6) We observe that neither section 192 of the Criminal Procedure Act, 1982 nor Rules 4 and 6 of G.N. No. 192 of 1988 or the observations of this Court in the case of Bahati Masebu supra require that documents containing evidence which is disputed by an accused person during a preliminary hearing has to be produced at the preliminary hearing and listed as an exhibit to be tendered at the trial. …. We can find no merit in this complaint and we dismiss it.” I need not add a word. Verily, the appellant was convicted with: 1. Rape; contrary to section 130 (1) (2) (b) and 131 (1) of the Penal Code, Cap. 16 R.E. 2022.

2. Unnatural offence; contrary to section 154 (1) (a) of the Penal Code, Cap. 16 R.E.

2022. He was immediately sentenced to 35 years imprisonment and 6 strokes of the cane for rape offence and 40 years imprisonment for unnatural offence. Additionally, he was condemned to pay T.shs 500,000/= as compensation to the victim of the offence. I am unable to uphold the convictions and sentences. I quash both convictions. The result from the above, the sentences are set aside, the appellant is to be released from prison unless held therein for other lawful causes. It is so ordered. Dated at KIGOMA this 22nd of January 2025 . J. NKWABI

JUDGE OF THE HIGH COURT Page. 9 Hon... JOHN NKWABI