WILIAM KULAYA JUDGEMENT

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: MWANPAMBO. J.A., KIHWELO. J.A. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 522 OF 2021 WILLIAM FELIX KULAYA.......................................................... 1st APPELLANT GODSON HUMPHREY MACHA................................................... 2nd APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Kilimanjaro, at Moshi) (Kinawele, RM - Ext. 3ur.^ dated the 28th day of January, 2021 in Criminal Appeal No. 33 of 2019 JUDGMENT OF THE COURT 18th & 25th March, 2025 MGEYEKWA. J.A.: William Felix Kulaya and Godson Humprey Macha, the appellants herein were arraigned and charged before the District Court of Moshi at Moshi with four counts of grievous harm, unnatural offence, rape and armed robbery contrary to sections 225, 154 (1) (a), 130 (1) (2) (a) & 131 (1) and 287A respectively, of the Penal Code Cap. 16 (the Penal Code). The prosecution on the first count alleged that on 4th July, 2019 at Karanga - Katanini area within the District of Moshi in Kilimanjaro Region, the appellants caused grievous harm to a girl. So as to protect her privacy we will not consider disclose her name. Henceforth, we will refer to her as "complainant" or simply as "PW1" the codename by which she testified. On the second, third and fourth counts, it was alleged that on the same date and at the same time and place, the appellants did have carnal knowledge of the complainant against the order of nature. It was alleged also that the appellants had carnal knowledge of complainant. It was further alleged that the appellants did steal 15 pairs of Vitenge, 9 pairs of Khanga, TZS. 516,000.00, 1 laptop, 2 mobile phones make Techno and Vodafone and small phone with number 0757894406 the property of one Lulu Fred Siame and the complainant and immediately or before such act did use a knife to cut the complainant to obtain and retain the said properties. After a full trial, the duo were convicted as charged on all counts. The court sentenced them to twelve months imprisonment on the first count and thirty (30) years imprisonment on the second, third, and fourth counts, each running concurrently. The brief facts of the case, as gleaned from the record of appeal, reveal that on 4th July, 2019, at around 11:00 hours, while PW1 was at home cleaning the house, the appellants allegedly invaded their house. PW1 testified that she witnessed the culprits jumped from the wall and forcibly entering the house. They inquired if her brother-in-law was present, to which she replied that she was alone. All of the sudden, alarming twist, one of the culprits brandished a knife from his trouser's pocket, pointing it towards her with menacing intent, and demanded that she discloses where her sister had hidden money. PW1 resisted, but the appellants bound her hands with a rope. Faced with no other alternative, she was left with no choice but to surrender herself to their actions. She further claimed that she identified the culprits: one was short, and the other was tall. They took her to the bedroom of Lulu Fredy Siame (PW2), where she alleged they stole 15 pairs of vitenge, 9 pairs of khanga, one laptop and two mobile phones. Following the robbery, at first, the short culprit raped her, but one thing led to another that is, he had sexual intercourse with her against the order of nature. After a moment, PW1 managed to escape. Thereafter, the matter was reported to the police station and PWl's statement was recorded before she was taken to the hospital. On 18th July, 2019, at around 21:00 hours, she recalled that the landlord informed PW2 that they had to go to the police station. Later, they proceeded to a grocery at Katanini area, which PW1 described as being well-lit by fluorescent electricity light, where she observed individuals drinking beer. There, she purportedly identified a man, whom she recognized as the first appellant. A few days later, the complainant is said to have identified the second appellant at an identification parade. PW2 testified that on the material day around 14:00 hours, PW1 went to her office, tears in her eyes, and with a heavy heart, she spoke of the misfortune that had befallen her. PW2 recalled that the culprits stole TZS. 560,600.00, 15 pairs of vitenge, 9 pairs of khanga, 2 mobile phones and TZS. 506,000.00. She further recalled that on 18th July, 2019, the landlord called them to meet at the grocery store. Upon their arrival, while PW1 seated inside the car with aid of an electricity light she identified the first appellant. Subsequently, PW1 was taken to Mawenzi Hospital after they obtained a PF3 where she was examined by Dr. Eliniokoa Adam Masamu (PW3). PW3 testified that PW1 had sustained cut wound on her hand caused by a sharp object and that her genitalia and anus were found to be open. He further noted that PW1 was unable to walk properly. PW3 documented his findings in the PF3 and admitted as exhibit PI. There was further evidence from Assistant Inspector Prisca (PW4), who testified that on 16th August, 2019, she was assigned by the OC-CID to conduct an identification parade comprising individuals allegedly involved in armed robbery and rape incident. Acting on these instructions, PW4 organized the parade by assembling individuals who bore a resemblance to the second appellant. PW4 then instructed the second appellant to position himself at a place of his choice. Following this, PW1 was called to identify the perpetrator, and she identified the second appellant by touching him on his shoulder. Subsequently, PW4 completed the Identification Parade Register, which was tendered and admitted into evidence as exhibit P2. The appellants flatly denied the charge against them. The first appellant asserted that on 14th July, 2019, he was at his homestead. He further testified that on 18th July, 2019, around 21:00 hours, while at a grocery, a police officer named Cliff, whom he had known for a long time, approached him and asked him to buy him a drink. He refused. He further argued that the delay in his arrest proved his innocence and questioned why Cliff, the arresting officer, was not called to testify. Stripped of the details, his defence was a general denial of accusation peppered with a claim that the charge he faced was a frame-up. The second appellant contended that, on the material day, he was at Karanga - Kijiweni area with his motorcycle. On 19th July 2019, he was informed by his cousin that the first appellant had been arrested by the police. Upon inquiring at the police station, he was told that the arrest had occurred because the first appellant had refused to buy Cliff a drink. Three days later, when he returned to the police station, he was chased away and threatened with arrest. On 14th August 2019, he paid a visit to the first appellant in the police lock up and in the midst of their conversations Cliff arrested him. The trial court found the appellants guilty of the charge and sentenced them, as previously stated. The appellants' appeal before the High Court hit a snag, as the RM with extended jurisdiction dismissed the appeal and upheld the trial court's conviction and sentence. Still aggrieved, the appellants preferred the current appeal. In their memorandum of appeal filed on 8th November, 2021 they raised seven grounds, followed by a supplementary memorandum filed on 13th November, 2023, in which they raised five additional grounds. On 17th January, 2025, they filed yet another supplementary memorandum containing 13 more grounds. In total, the appellants raised 26 grounds of appeal. However, for reasons that will become evident in due course, we do not deem it necessary to reproduce all of them. At the hearing of the appeal, the appellants appeared in person, unrepresented and urged us to consider their grounds of appeal contained in the memorandum of appeal together with their written arguments filed on 13th November, 2023. The respondent Republic was represented by Mses. Rose Sulle and Agatha Pima, learned Senior State Attorneys assisted by Mr. Henry Daud and Ms. Julieth Komba, learned State Attorneys. It was Ms. Sulle who addressed the Court. At the outset, she supported the appeal. In her submission, Ms. Sulle chose to focus solely on the eighth ground of appeal as outlined in the memorandum, which is paraphrased as follows: 8. The learned SRM with extended jurisdiction grossly erred in law and fact in upholding the appellant's conviction and sentence in a charge which was not proved beyond reasonable doubt against the appellants. Addressing the Court on that ground, the learned Senior State Attorney conceded that the case against the appellants was not proved beyond reasonable doubt. Her submission was anchored on three key issues: one, that there was a material variance between the charge sheet and the evidence, two, that the identification was weak; and three, that material witnesses were called to testify in court. With respect to the variance between the charge and the prosecution witnesses' evidence, she submitted that the trial court erred in placing reliance on the prosecution's evidence, despite there being clear discrepancy between the particulars of the offence on the fourth count and the evidence adduced before the court. She clarified that, PW1 and PW2 testified that the appellant stole 15 pairs of vitenge, 9 pairs of khanga, 1 laptop, and 2 mobile phones. However, the charge sheet alleges that the appellant stole 15 pairs of vitenge, 9 pairs of khanga, TZS 516,000, 1 laptop, 2 mobile phones, a mobile phone make Techno and a small phone with registration number 0757894406, the property of PW1. It was her further submission that, PW1 did not mention if the mobile phone make Techno was among the stolen properties. To support her argument, she referred us to page 18 of the record of appeal. At the Court's prompting, Ms. Sulle conceded that whenever such variance occurs, the prosecution is required to amend the charge but in the present case the charge was not amended. It was her view that the contradictions dented the prosecution evidence. We prefer, at first, to reproduce the particulars of offence on the fourth count as per the charge sheet hereunder: " PARTICULARS OF OFFENCE" WIILIAM S/O FELIX @ KULAYA and GODSON HUMPHREY MACHA on the 4 h July, 2019 at Karanga - Katanini area within the District of Moshi in Kilimanjaro Region, did steal 15 pairs of Vitenge, 9 pairs of Khanga, cash money TZS. 516,000.00, 1 laptop, 2 mobile phones make Techno and Vodafone and small phone with number 0757894406 the property of one Lulu Fred Siame and Margreth William Matonya and immediately or before such act did use a knife to cut one Margreth William Matonya in order to obtain and retain the said properties. Signed a t M oshi this 27th day o f August, 2019 Signed State Attorney It is settled position that a charge is a foundation of criminal trial whose purpose is to inform the accused person of the nature and magnitude of charges brought against him to enable him adequately prepare his defence. This position has been elaborated by the Court in a plethora of authorities, amongst others, Remina Omary Abdul v. Republic, Criminal Appeal No. 189 of 2020 (unreported) and Faraja Kazimoto Tomas v. Director of Public Prosecutions [2024] TZCA 301 (6 May 2024 ) TanzLII. In the instant case, the variance is on the amount of money stolen and number or type of phones alleged to have been stolen by the appellant from PW1 as indicated in the particulars of the offence and the evidence on record. The particulars of the offence indicate that the appellant did steal TZS. 516,000.00 and two cellular phones make Tecno and Vodafone and another small phone with number 0757894406. PW2 testified that the appellant stole TZS. 560,600.00 and TZS. 506,000.00. For ease of reference, we reproduce the relevant part of PW2's testimony hereunder: "...bandits took m y money in the cupboard TZS, 560,600.00... I found my laptop make D ell went missing 15 dozen o f vitenge, 9 dozen o f khanga, 2 cellular phones and TZS. 506,000,00 were not there..." Deducing from the above excerpt, we agree with the learned Senior State Attorney that the particulars of the offence on the fourth count as was set out in the charge sheet was at variance with the evidence on record. It is our firm view that the discrepancies between the particulars of the offence on the fourth count in the charge sheet and the evidence on record are not trivial; they go to the root of the case. This leaves much to be desired in the prosecution's case. It is trite that when there is variance or uncertainty in the charge sheet, the proper remedy is to amend the charge under section 234 (1) of the Criminal Procedure Act (the CPA). In the case at hand, the prosecution ought to have moved the trial court to amend the charge sheet and allow the appellant to plead to the altered charge. In the case of Thabit Bakari v. Republic, Criminal Appeal No. 73 of 2019 [2021] TZCA 259 (17 June 2021) TanzLII, the Court stated that: - " It is w ell settled that in such a situation, failure to amend the charge sheet is fatal and prejudicial to the appellant. This is because such anom aly leads to serious consequences to the prosecution case/' See also, Mashaka Bashiri v. Republic [2021] TZCA 25 (19 February 2021 ) TanzLII and Issa Mwanjiku @ White v. Republic, [2020] TZCA 1801 (6 October 2020) TanzLII. In such circumstances, the charge remains unproven. Therefore, we find this ground meritorious. On the complaint regarding contradiction in the testimony, the learned Senior State Attorney submitted that the complaint was justified. She pointed out that PW2 initially stated that the appellants stole TZS 560,600.00, but later testified that the amount stolen was TZS 506,000.00. She therefore, submitted that the contradiction should be resolved in favour of the appellants. The law on this point is clear that the Court will only take into consideration contradictions which are not minor and go to the root of the matter. The Court has decided so in various cases, amongst others, Mohamed Said Matula v Republic [1995] TLR 3, Issa Hassan v. Republic, Criminal Appeal No. 129 of 2017 (unreported), and Dickson Elia Nsamba Shapwata & Another v. Republic, [2008] TZCA 17 (30 May, 2008) TanzLII. In the latter case, the Court observed that: "In evaluating discrepancies, contradictions, and om issions, it is undesirable for a court to p ick out sentences and consider them in isolation from the rest o f the statements. The court has to decide whether the inconsistencies and contradictions are only m inor or whether they go to the root o f the m atter" As correctly submitted by the learned Senior State Attorney, PW2's evidence exhibited notable inconsistencies. PW1. in her testimony contradicted herself on the amount of money stolen. At first, she testified that the culprits stole TZS 560,600.00 and later she testified that the culprits stole TZS 506, 000.00. We expected that PW2, who was the owner of the stolen money, would be the one to establish the amount of money. Unfortunately, this was not the case in the instant appeal. The contradiction was undeniably significant and had a detrimental effect on the charges faced by the appellants. Had the courts below correctly assessed the prosecution witnesses' evidence and addressed themselves to these unsatisfactory features in the evidence of PW2, they would have noted that the discrepancies or contradictions went to the root of the matter. We now turn to address the issue of failure to call material witnesses to testify in court. Ms. Sulle, submitted that the arresting officer who arrested the appellants as well as the landlord who facilitated the arrest of the first appellant, were not called to testify. She added that no explanation was provided for their absence or the failure to summon them. Ms. Sulle relied on the Court's decision in Markbruno Zacharia and 2 Others v. Republic [2024] TZCA 434 (11 June 2024) TanzLII, for the proposition that where a witness who is in a better position to explain missing links in the party's case is not called without sufficient reason being shown by the party, an adverse inference may be drawn against the party. It is trite law that failure to call material witnesses by a party may be construed as adverse to that party consistent with the court's decision in in In Aziz Abdallah v. Republic [1991], the Court held that: 'The genera! and well-known rule is that the prosecutor is under a prim a facie duty to ca ll those w itnesses who, from their connection with the transaction in question ; are able to testify on m aterial facts. I f such witnesses are within reach but are not called w ithout sufficient reason being shown the court may draw an inference adverse to the prosecution." This principle applies equally in the present case. No explanation was given as to why those witnesses were not called to testify. In Rehan Said Reyamila v. Republic [2021] TZCA 301 (31 July 2021) TanzLII, the Court encountered a similar situation and proceeded to draw a negative inference from the prosecution's failure to summon a material witness. In the instant case, as both parties have rightly observed, neither the arresting officer who apprehended the second appellant, nor the landlord who facilitated the arrest of the first appellant were called to testify in court. Consequently, the prosecution's evidence fall short in establishing the connection between the appellants' arrests and the alleged offences. In our view, these witnesses were of considerable significance. Had they been called to testify, they would have provided crucial details regarding the appellants' arrests and their link to the offence in question. Given the circumstances, as alluded to above, we think this is a proper case to draw an adverse inference against the prosecution for failure to call such material witnesses to testify in court in that perhaps such witnesses might have testified against the prosecution. See for instance, Kijonju v. Republic, Criminal Appeal 63 of 2002) [2006] TZCA 72 (28 June 2006TanzLII) and Boniface Kunduakira Tarimo v. Republic, Criminal Appeal No. 351 of 2008 [2011] TZCA 194 (4 October 2011) TanzLII. We now turn to the issue of visual identification. Ms. Sulle supported the appellant's argument contending that PW2 failed to offer a clear and detailed description of the appellants, providing only vague generalizations, such as the first appellant being short and the second tall. She argued that such descriptions did not serve to distinguish the appellants from others. Ms. Sulle further submitted that PW1 claimed to have identified the first appellant with the aid of electric light, yet failed to specify the intensity of the light and the distance between herself and the appellant. In addition, 16 the learned Senior State Attorney submitted that, while the landlord appeared to have identified the perpetrator, the record remains silent on whether PW1 had provided a description of the culprit to him. Still on identification, the learned Senior State Attorney submitted that PW1 failed to provide any description of the appellants to the police, which could have initiated the investigation and led to their arrest. We were referred to the case of Ibrahim Eston v. Republic, Criminal Appeal No. 75 of 2021 [2024] TZCA 516 (5 July 2024) TanzLII, where the Court held that, the purpose of giving a prior description is to give credence and strengthen the credibility of the identifying witness. In further faulting the trial magistrate and the Resident Magistrate with extended jurisdiction, Ms. Sulle contended that the identification parade procedure was not properly followed and that PW l's evidence on the identification parade was fraught with discrepancies. The law relating to visual identification evidence is long settled in that, it is the weakest kind of evidence and no court should act on such evidence unless it is satisfied that all possibilities of a proper and unmistaken identification are eliminated, that is to say; the evidence must be watertight. See: Wazir Amani v. Republic [1980] T.L.R 250. In Raymond Francis v. Republic [1994] T.L.R 100, the Court held: "It is elem entary that in a crim inal case where determ ination depends essentially on identification ; evidence on conditions favouring correct identification is o f utm ost im portance." See: also Magobo Njige & Another v. Republic [2021] TZCA 375 (17 August 2021) TanzLII and Ibrahim Eston (supra). To eliminate the possibility of mistaken identity, it is expected that the witness will provide details of all factors that could enable a correct and unmistakable identification. Such factors include the proximity to the person being identified, the source and intensity of light, the duration of time spent observing the person, and whether the person was familiar to the witness. This stance was taken in the case of Leonard Mathias Makani v. Republic, Criminal Appeal No. 579 of 2017 [2023] TZCA 182 (11 April 2023) TanzLII. Reverting to the case at hand, as correctly argued by both parties although PW1 testified to have identified the appellants at the crime scene she did not provide description of their attire which they wore on the fateful day. Neither did she mention the intensity of the light at the grocery store nor did she state the distance between herself and the appellant considering the fact that it was the first time she saw them. In other words, the testimony of the identifying witness, PW1, was too general to meet the threshold underscored in Waziri Amani (supra). It is settled position that general descriptions that are not specific cannot help in identifying the suspect. See the case of Andrea Augustino @ Msigara & Another v. Republic, Criminal Appeal No 365 of 2018 [2020] TZCA 1948 (28 February 2020) TanzLII. Consequently, we are of the firm view that failure to clearly describe those conditions and features, particularly for persons who were strangers to PW1 weakened the reliability of PW1 in identifying the culprits. Moreover, we agree with the parties that, PWl's evidence concerning the identification parade was fraught with irregularities. It is well- established that the proper procedure for conducting an identification parade necessitates that the witness identify the perpetrator, whom they had not known or seen prior to the incident. Furthermore, the parade should be held shortly after the event thereby providing the witness an opportunity to make a prompt identification. This process serves to 19 enhance the reliability of the witness's subsequent dock identification and reassures the Court of its accuracy. See Abdul Farjala and Another v. Republic, Criminal Appeal No. 99 of 2008 [2008] TZCA 156 (14 July 2008) TanzLII. In the present case, PW1 was asked to identify the perpetrators during an identification parade conducted by PW3, as recorded on page 26 of the appeal record. However, as correctly submitted by the learned Senior State Attorney, it is apparent that PW1 had failed to provide a description of the culprits prior to the identification parade. Consequently, this omission undermines the significance of PWl's identification of the second appellant during the parade. This issue is not novel; a similar situation was addressed in the case of Markbruno Zacharia (supra), the Court stated that: "The identification by PW1 in the identification parade did not have any effect to the identification o f the appellants. What remained was a mere dock identification which could not amount to identification sufficient to mount a conviction." Applying the above principle to the case before us, we agree with the learned Senior State Attorney that identification evidence was not sufficiently reliable to link the appellants to the offence with which they were charged. For the aforesaid reasons, the totality of the infractions explained above, rendered the case against the appellants unproven. In the end, we allow the appeal, quash the conviction, and set aside the sentence meted out against the appellants. We further order their immediate release from prison unless they are otherwise lawfully held. DATED at MOSHI this 25th day of March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 25th day of March, 2025 in the presence of the 1st and 2nd Appellant in person and Mr. Makore Maheri, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.