Frank Wilson @ Mhaya vs Republic (Criminal Appeal No. 257 of 2024) [2026] TZCA 199 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA f CO RAM: LEVIRA. J.A.. MDEMU. 3.A. And ISSA, J.A.l CRIMINAL APPEAL NO. 257 OF 2024 FRANK WILSON @ M H AYA................................................................APPELLANT VERSUS THE REPUBLIC................................................................................ RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Mwanza at Mwanza) (Ndvekobora. PRM-Ext. Juris.1 ) dated the 17th day of November, 2023 in RM. Criminal Appeal No. 29 of 2023 JUDGMENT OF THE COURT 24th February & 3rd March, 2026 LEVIRA. J.A.: Frank Wilson @ Mhaya, the appellant in this appeal was arraigned before the District Court of Nyamagana at Mwanza facing a charge of attempted rape contrary to section 132 (1) of the Panel Code, Cap 16. The prosecution alleged that on 2n d October, 2022 at Igoma Mashariki Area within Nyamagana District in the City of Mwanza, the appellant attempted to have canal knowledge of one Gaudencia Komya @ Msalama, a woman aged 22 years old without her consent. The appellant denied the charge. i Nonetheless, upon a full trial, he was convicted and sentenced to 30 years imprisonment. It is on record that in order to prove the charge, the prosecution called four witnesses. The victim (PW1) testified to the effect that, on the fateful date, while on her way back home from work at about 10:00 hours at night, she met one man at "majaruba". The said man grabbed, forced her to the ” m ahindi" (maize), fell her down, removed her dress and under wear. PW1 screamed while the appellant was lying on top of her trying to remove his trousers. Then people came, the appellant wanted to escape but PW1 held his shirt; he removed it from his body and he started to run. Eventually, he was arrested and sent to the ten-cell leader's house and later to the street chairman. PW1 testified further that, she saw a man who attempted to rape her and identified him at the ten-cell leader's house because he was not wearing a shirt. Later, the said man was taken to the Police Station. Besides that, she never saw that man before the incident. Silver Fedinand (PW3) was among the people who responded to the PWl's alarm. He was able to arrest the appellant and they took him to the ten-cell leader. Later, they went to the 2 scene of crime, the area which had maize crops. The Police Officers arrived at the scene of crime and the appellant was taken to Mwatex Police Station. The ten-cell leader, one Zacharia James (PW2) confirmed that, on the fateful night of 2n d October, 2022 at about 10:00 hours at night, he heard a woman screaming asking for help but he did not bother to wake up because he thought it was a marriage problem. However, a little while, people knocked at his door, then he went to the scene of crime near the unfinished house and found a crowd of people beating a man. He stopped them and inquired to know what was the matter. He was told that the man attempted to rape one woman who was also present. PW2 asked the appellant whether he knew the victim, he responded in affirmative and that her name is Eliza and they were communicating through the phone but could not mention her number. PW2 told the appellant that the victim's name is not Eliza. The appellant attempted to escape but he was arrested and sent to the Police Station. PW2 identified the appellant because he took him to the electric light. He also saw the dress of the victim being wet with mad. At the Police, F. 1628 DSG. Ija (PW4) interrogated and recorded the appellant's cautioned statement. He testified that the appellant confessed to have committed the offence he was charged with. PW4 tendered the appellant's cautioned statement during trial and it was admitted as exhibit PI. 3 After closure of prosecution case, the appellant was invited to enter his defence. He testified that on 2n d October, 2022 while at home cooking, his door was knocked and he was told to go to the street chairman's house, which he did. When he arrived there, he was ordered to sit down and after thirty (30) minutes, one lady was brought and she was asked whether the appellant was the one and she replied yes. Then the police came, took him to the Police Station where he recorded his cautioned statement. He denied to have attempted to rape the victim. At the end of the trial, the appellant was convicted and sentenced as introduced earlier. Being dissatisfied with the conviction and sentence, the appellant appealed to the High Court of Tanzania at Mwanza. His appeal was transferred to be heard by the Principal Resident Magistrate with extended jurisdiction (PRM with Ext. Juris.) of the Resident Magistrate's Court of Mwanza at Mwanza. However, his appeal was dismissed for want of merit. Undoubtedly, the appellant has approached the Court armed with four grounds of appeal presented in the memorandum of appeal filed in Court on 9th October, 2024 and six grounds in the supplementary memorandum of appeal of 16th February, 2026. In all grounds of appeal, the appellant's main complaint is that the case against him was not proved beyond reasonable doubt, more so, as he was not identified at the scene of crime. This complaint 4 was demonstrated in the second ground of appeal of the supplementary memorandum of appeal. At the hearing of the appeal, the appellant appeared in person, unpresented whereas, the respondent Republic had the services of Mses. Rehema Mbuya, Nuru Chiwato and Brenda Elisha Mayalla, learned Senior State Attorneys and State Attorney, respectively. The appellant adopted the grounds of appeal as part of his oral submission before the Court and reserved his right to rejoinder after hearing a reply from the learned Senior State Attorney. Initially, Ms. Mbuya opposed the appeal. However, after engagement by the Court and upon reflection, she supported the appeal. She concurred with the appellant that, he was not properly identified at the scene of crime. She referred us to page 9 of the record of appeal where PW1 testified that, the incident took place at night around 10:00 hours at "m ajaruba" area. Nonetheless, she did not state whether there was any source of light in that area. The only thing which made her to believe that the appellant was the one who attempted to rape her, was the shirt which she said, she grabbed it from the appellant's body when he was about to escape from the scene of crime. However, the said shirt was not tendered as exhibit and no any other 5 prosecution witness talked about it. She added that, the identification done by PW1 at the ten-cell leader's house was based on the fact that, she saw a man, by the assistance of the electric light, who was not wearing a shirt. The ten-cell leader who identified both the appellant and the victim, testified that the scene of crime was near the unfinished house and he took the appellant to the electric light and identified him. He as well, saw the victim's dress being wet with mad. The leaned Senior State Attorney submitted further that, conditions favoring proper identification at the scene of crime were not met. PW1 did not state how she identified the appellant at the scene of crime and she did not give any description. The only thing she connected him with, was the shirt allegedly grabbed from the appellant's body, but it was not tendered in evidence. In the circumstances, she said, the prosecution failed to prove the charge against the appellant beyond reasonable doubt; she urged us to find so and allow the appeal. Having considered submissions by both parties and thoroughly gone through the record of appeal, the answer to the issue as to whether the charge against the appellant was proved beyond reasonable doubt, is not farfetched. It is settled principle that, he who alleges must prove. In criminal 6 cases the burden of proof lies on the prosecution. The appellant in the present appeal was charged with attempted rape as stated earlier. Therefore, the prosecution had to prove that he intended to procure prohibited sexual intercourse with PW1 by threatening her, for that purpose. In order to prove that the appellant was the person who met with PW1 on the fateful night at the scene of crime and attempted to procure prohibited sexual intercourse with her, the prosecution relied on the identification which she (PW1) did as a key witness. It is established principle that, visual identification at night needs careful scrutiny of surrounding circumstances including familiarity, distance, lighting, opportunity to observe, to mention but a few. In Waziri Amani v. Republic [1980] TLR 250, while determining the issue of identification the Court observed that: '!Identification evidence, is notoriously subject to error and has often ied to a m iscarriage o f justice. Hence the necessity o f the tria l court to warn itse lf o f the special need for caution before convicting in reliance on the correctness o f the identification o f an accused." Being guided by the above principle, we shall let the evidence of the sole identifying witness (PW1) speaks for itself hereunder: "On 2/10/2022 I was coming from my work at the hotel on my way at about 10 hrs at night, when I was about reaching home at Majaruba one man robbed me a t m y neck he forced me to the m ahindi he then put me down I was wearing dress then he started rem oving my dress and my under wear then I was able to scream , alikuwa am eniiala yeye alikuwa ju u yangu he was trying to remove his trouser then people came he wanted to escape then I hold his sh irt and he removed his shirt he started to run.... I have never seen him before . " As it can be observed from the excerpt above, PW1 did not state any source of light which enabled her to identify the appellant at that fateful night. She did not state as for how long she observed and how she managed to mark him while in fracas taking into consideration that, it was her first time to meet him. Instead, in the total darkness, she only managed to hold and take the appellant's shirt as he was running away. It was also her testimony that she raised alarm and people responded to it, the appellant was arrested and taken to the ten-cell leader where she later identified him because he was not wearing a shirt. In our considered view, that being a night time with no source of light explained and the record of appeal is silent whether the appellant was the only man without a shirt; or that there were 8 special marks which aided PW1 to identify him, it cannot be said without doubt that the appellant was identified at the scene of crime. Besides, the shirt allegedly taken by PW1 from the appellant which could connect him with the offence was not tendered during trial as part of evidence and there was no further explanation to justify that it was, indeed, the appellant's shirt. Therefore, we agree with the parties that, circumstances in the present case were not favourable for proper identification of the culprit. With respect, we are unable to agree with the fist appellate court that the appellant was identified at the scene of crime. We are alive to the settled position that, being the second appellate Court, we are not supposed to interfere with the concurrent findings of the lower courts unless there is, among others, misapprehension of facts. Nevertheless, we find that the first appellate court misapprehended facts when it held on page 57 of the record of appeal that: "The complainant, in her evidence, has clearly describe the source o f the lights to identify the appellant, and her evidence was supported by the evidence o f PW2 and PW3, who arrived a t the scene o f the event soon after they heard PW1 scream ing." The above holding, in our view, tells that there was misapprehension of facts as far as the scene of crime is concerned. As intimated above, PW1 did not disclose any source of light at the scene of crime. The light stated by 9 those witnesses was the light at the ten-cell leader's house which was not the scene of crime. Therefore, we find and hold that it was not proper for the courts bellow to hold that the light at the scene of crime enabled PW1 to identify the appellant on the material night. Without much ado, we allow the appeal, quash conviction and set aside the appellant's 30 years imprisonment sentence. We, consequently, order his immediate release from the prison unless he is otherwise lawfully held for other cause. DATED at MWANZA this 2n d day of March, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 3rd day of March, 2026 in the presence of the Appellant in person, Mr. Japhet Ngussa, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified 10