Joseph Pesa vs Republic (Criminal Appeal No. 495 of 2024) [2026] TZCA 258 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A., MDEMU, J.A.. And ISSA. J.A.^ 1 CRIMINAL APPEAL NO. 495 OF 2024 JOSEPH P E S A .................................................................................. APPELLANT VERSUS THE R EPU BLIC ............................................................................ RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Mwanza at Mwanza) (Ndvekobora. PRM with Extended Jurisdiction^ Dated the 31st day of October, 2023 in RM Criminal Appeal No. 32 of 2023 JUDGMENT OF THE COURT 25th February & 4th March, 2026 ISSA, 3.A.: The propriety of the conviction of the appellant, Joseph Pesa, of the offence of rape contrary to section 130 (1) (2) (e) and section 131 (1) of the Penal Code, Cap. 16 and a sentence to serve thirty years imprisonment meted to him by the District Court of Misungwi sitting at Misungwi (the trial court) and which was confirmed by the Resident Magistrate's Court of Mwanza at Mwanza (the first appellate court), on first appeal, are still being challenged before this Court. The arraignment of the appellant before the trial court was a result of an accusation that, on 18th March, 2022 at Misungwi Village within Misungwi District in Mwanza Region, he had carnal knowledge of a 16 years old girl, whom we shall call XY or victim. The appellant pleaded not guilty to the charge. The prosecution fielded four witnesses to prove the charge, and after a full trial the appellant was convicted as charged and sentenced as stated earlier. The brief facts of the case as found by the trial court and confirmed by the first appellate court were that, on March, 2022 XY who testified as PW2 was alone at home at Misungwi Village where she was living with her aunt, Emirisiana Mussa (PW1). On that particular day, XY was looking for canes which they use for planting seedling. The appellant was alleged to have passed by and seeing XY alone, he called her and praised the beauty of her breasts. He immediately proposed to marry her, but XY turned down the offer. The appellant then held her hand and led her to Masawe area. XY followed him without any resistance even when the journey ended in the bushes where the appellant undressed her, laid her down and had carnal knowledge of her. Upon satisfying his lust, he gave her TZS. 400.00 and promised her to come back on the following Monday. When PW1 returned home at 18.00 hours, she did not find XY. She started making enquiries and one of her neighbours told her that, XY left with a young man and they headed to the road. At 18.45 hours, XY came back accompanied with a girl and when she was asked about her whereabouts, she narrated her story that, one man came with a mountain bicycle praised her good breasts and wanted to marry her. She then left with the said young man heading to the bushes where the man raped her and gave her money afterward. She added that she does not know the man, but he told her that he was living at Masawe. PW1 reported the matter to the police. On Sunday at 18.00 hours, a young man who was riding a bicycle went to their house looking for a room to rent. PW1 became suspicious and called XY who appeared and told her that, it was the man who raped her. PW1 also called her neighbour who also confirmed that he was the man who took XY. PW1, finally, called her husband who called a police officer and the young man was arrested. That young man is the appellant in the instant case. G.3405 D/Cpl. Lucas (PW3) testified that, on 20th March, 2022 at 19.00 hours the appellant was brought at Misungwi Police Station and he recorded his cautioned statement (exhibit PI) in which he confessed to have carnally known XY. The last prosecution witness was Chausiku Katunzi Kasala (PW4) who testified that, she is a doctor who examined XY at Misungwi hospital on 22n d March, 2022. She then filled a PF3 (exhibit P2) and her finding was that, XY was not virgin and a blunt object has penetrated in her genitalia. The appellant, in his defence, denied committing the offence. He testified that on 23rd March, 2022, he was at Mwambola Village selling home appliances. At 17.30 hours he headed back home at Misungwi Full Gospel Church where he saw two women standing on the grass. Upon passing them riding his bicycle, the women called him and invited him to their home. He went there and was given a chair to sit. He narrated his work which is selling home appliances. In turn, the woman narrated the incident of rape which occurred to her daughter, but his response was that he knew nothing about it. Then, he was apprehended and when her daughter came out of the house she said, she does not know him. The woman asked for a stick and threatened XY with it; XY then admitted that he was the man who raped her. The woman and her husband called the police and he was arrested and taken to Misungwi Police Station. The trial court, on the strength of the evidence of PW1, PW2, PW3 and PW4 and exhibit PI and P2 was satisfied that, the charge against the appellant was proved to the hilt. It convicted him for the offence of rape and sentenced him as stated earlier. Aggrieved, he appealed to the High Court of Tanzania at Mwanza which transferred his appeal to the Resident Magistrate's Court of Mwanza sitting at Mwanza where his appeal was unsuccessful. Still protesting his innocence, the appellant lodged the instant appeal armed with four grounds of appeal in the memorandum of appeal lodged on 24th June, 2024. The essence of the appellant's challenge on 4 those grounds of appeal is that, the prosecution failed to prove its case beyond reasonable doubt as the appellant was not identified as a person who ravished XY. At the hearing of the appeal, the appellant was fending for himself while the respondent Republic had the services of Mr. Morice Mtoi, learned Senior State Attorney assisted by Ms. Brenda Mayala, learned State Attorney. The appellant adopted his grounds of appeal, and opted for the Republic to submit first and would rejoin later, if necessary. For the Republic, Mr. Mtoi supported the appeal on the same reason that the appellant was not identified by the victim. He submitted that XY narrated how she was raped by a young man, but did not name or describe the said young man. Therefore, the appellant was not identified at the scene of crime. He concluded that the prosecution case was not proved beyond reasonable doubt and urged the Court to allow the appeal and set the appellant free. The appellant had nothing to add following that submission except that he also prayed for the Court to set him free. The issue for our determination in the instant appeal is, therefore, whether the appellant was identified by XY at the scene of crime. The facts of the case are very clear that, the offence of rape was committed during day time and XY was taken from her house to the bushes where she was raped. Hence, she had ample of time to observe her ravisher. Unfortunately, she neither named her rapist or even give his physical description or attire, it was only during cross-examination where she testified as follows: 7 know you by the name Joseph. You raped me near Masawe area The inability of the witness to disclose the name of the perpetrator at the earliest time following the commission of the offence puts to question the reliability and assurance of such evidence and casts doubt to her evidence and prosecution case. (See - Swalehe Kalonga and Another v. The Republic, Criminal Appeal No. 45 of 2001 (unreported) and Jaribu Abdulla v. The Republic [2003] T.L.R. 271. Further, according to the testimony of PW1, one of her neighbours saw the appellant taking XY and later when appellant was apprehended at PW l's house, she came and confirmed that he was the one who took XY. Again, this neighbour did not give description of the appellant before she was called to confirm if it was him. Worse, she was not called to testify at the trial court. Failure to call this neighbour who is a material witness entitled the Court to draw adverse inference against the prosecution, which we hereby do. 6 The crucial issue in the instant appeal is who was responsible for the offence of rape, XY and PW l's neigbour, the witnesses who saw the appellant on the alleged fateful day, failed to give his description at the earliest or even give his attire. In fact, XY identified the appellant while on the dock. This being the testimony of the victim, we keep doubting the circumstances leading to the identification and arrest of the appellant. Taking into consideration, there are two versions: one given by PW1 and the other given by the appellant. The case at hand is a second appeal in which we are alive to the general practice that, a second appellate court would not easily disturb or interfere and undo the concurrent findings of two lower courts unless the two courts completely misapprehended the substance, nature and quality of the evidence resulting in an unfair conviction or where there was misdirection on evidence, (see - Salum Mhando v. The Republic [1993] T.L.R. 170, Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 143. From the series of events in the instant appeal, it is clear that the appellant was identified on the dock and there was no identification parade which was conducted. The position of law on dock identification is 7 very clear and the Court in Majid John Vicent @ Mlindamgabo and Another v. The Republic [2012] 77CA 281, TANZLII had this to say: 'A s already sta te d P W 1 was the key witness in the case. In other words, the prosecution case was to stand or fa il on the evidence o f this crucial witness. A t best however, the evidence o f this w itness was nothing but a narration o f the events o f that night and what befell him in the encounter. There is absolutely no scintilla o f evidence to show whether and how he identified the appellants a t the m aterial time. H is evidence, if any, was one o f dock identification a t the trial. Needless to say, in the absence o f an identification parade conducted earlier with the view to testing whether PW1 really identified the appellants on the night in issue, it follow s that the dock identification in the case was worthless in law ." In the instant case, several doubts have emerged which touched the issue of identification of the appellant. One, XY who was there at the scene of crime failed to identify the appellant or even give the description of his physical appearance or attire. Two, the neighbour who claimed to have seen appellant taking XY did not describe him to PW1 and worse, she was not called to testify at the trial court. Three, there was no identification parade which was conducted where XY could have been tested if she really identified the appellant at the scene of crime. All these issues undermined the prosecution case which hinges on the victim's evidence. Considering the evidence on record, there was a misdirection of evidence by the two lower courts. Let us glance at the judgment of the 1st appellate court where the presiding PRM with Extended Jurisdiction wrote: "The tria l court's record is very dear a t pages 11 and 12 that the victim was known carnally by the person who she identified as Joseph\ who is now an appellant. The victim further alleged that the appellant held her hands and took her to the bush, where he undressed her white khanga and had sexual intercourse with her. Looking a t the victim 's evidence, this court is satisfied that there is no m istaken identity, taking into account that the offence was not com m itted a t night." How the appellant was identified, which is the epicentre of our scrutiny escaped the minds of both lower courts. We are, therefore, in full agreement with both Mr. Mtoi and the appellant that, there was no identification of the appellant. It was a dock identification which standing alone, as in this case, has no value at all in law. There was, therefore, no 9 evidence at all upon which the conviction of the appellant on the offence of rape could be safely grounded. Consequently, we allow the appeal in its entirety. The conviction of the appellant and the sentence imposed on him are accordingly quashed and set aside. We order for his immediate release from prison unless he is being held there for another lawful cause. DATED at MWANZA this 3rd day of March,2026. The Judgment delivered this 4th day of March, 2026 in the presence of appellant in person, Ms. Jainess Kihwelo, learned Senior State Attorney for the respondent/Republic, and Mr. Ladislaus Msuba, Court Clerk, is hereby certified as a true copy of the original. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL 10