Paschal Ng'hungu vs Republic (Criminal Appeal No. 248 of 2024) [2026] TZCA 184 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA. J.A.. MDEMU. J.A. And ISSA. J. A.^ CRIMINAL APPEAL NO. 248 OF 2024 PASCHAL NG'HUNGU.................................................................APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Mwanza) (Morris, J.) Dated the 6th day of October, 2023 in Criminal Appeal No. 109 of 2023 JUDGMENT OF THE COURT 19th February & 2n d March, 2026 MDEMU, J.A,: On 6th October, 2023, the High Court of Tanzania, sitting at Mwanza sustained the conviction and sentence for the offence of rape meted out by the District Court of Magu in respect of the appellant. It is contained in the particulars of the offence that, on the night of 29th January, 2023 at Kisesa Village, the appellant engaged into sexual intercourse with PW1, a girl of 13 years of age and a form one student of Lumwe Secondary School. It was this way: On the incident date, PW1 went to the bathroom located a few meters from the residential house where the appellant was i

a one room tenant. Magreth Philipo (PW2) was also present in that residential house. PW1 stated that, the appellant @ Baba Erasto, followed her in the bathroom and by that hour, PW1 was naked and bathing her body. Utilizing that advantage, the appellant grabbed and laid PW1 down, undressed his trousers and then inserted his manhood in PW l's vagina. The appellant covered PW l's mouth using his fore limbs in order to prevent her from raising an alarm. After completing his mission, he disappeared from the crime scene. PW l dressed up, rushed to PW2 and informed her what had happened with the appellant in the bathroom. Shortly, the appellant returned at the residential house and when inquired as to what had befallen to PW l, he orally confessed to be the ravisher of PWl. The matter was thereafter reported to Kisesa Police Station where PW l was issued with a PF3 and proceeded straight to Kisesa Health Centre. She was attended by Paschal Morris (PW5). In the clinical examination, PW5 opined in his report (exhibit PI) that, PW l was penetrated in her vagina. He also found some bruises and swollen indicators in PW l's vagina. The appellant distanced himself from the ordeal. That besides, the trial court found that the appellant was identified to be the ravisher, thus was found guilty, and upon conviction, he was sentenced to thirty years 2

imprisonment, with hard labour. He was also ordered to pay back medical expenses at the tune of TZS 1,000,000.00. He was not satisfied, unfortunately, his appeal to the High Court was unsuccessful. Trusting that PW1 was not credible in her evidence of identification by recognition because the offence was committed during the night, the appellant preferred this second appeal fronting 4 grounds in a memorandum of appeal filed on 8th May, 2024 and other 8 grounds forming the contents of a supplementary memorandum of appeal logded to the Court on 8th May, 2025. In all the grounds of appeal, the decisive ground is the first ground in the supplementary memorandum of appeal which goes that: ’That the prosecution evidence did not prove the case against the appellant beyond reasonable doubt as the law requires." For that matter, there is no compelling need to reproduce other remaining grounds of appeal appearing in the two memoranda. Before us for the hearing of the appeal was the appellant who fended for himself whereas, the respondent Republic had the services of Ms. Hellen Chuma, learned Senior State Attorney assisted by Mr. Sileo 3

Leonce Mazullah and Ms. Sara Perius Simtala, both learned State Attorneys. When the time to argue his appeal came, the appellant simply invited us to take into account the contents of all the grounds of appeal which, to him, suffices to explain his dissatisfaction on the two lower courts' concurrent findings on conviction and sentence. Initially, Ms. Chuma resisted the appeal. However, upon further reflection in the course of arguing the appeal, she changed her stance on what she noted that PW1 did not state in her evidence the source of light which aided her to recognize the appellant. In resolving the controversy, we begin this way: It is not disputed that the rape of PW1 by whoever did it, occurred in the night. It is also in the record that, PW1 is the sole eye witness who explains what happened to her in the bathroom. Importantly, is the fact that, across the record of appeal, there is nowhere PW1 stated what indeed aided her to recognize the ravisher, the appellant in this case. With those settled issues, what comes for our consideration is whether the victim properly and unmistakenly recognized the appellant in that material night to be the man who raped her. 4

Our stating point is the law relating to identification by recognition. In Peter Marco @ John v. Republic (criminal Appeal No. 258 of 2017) [2022] TZCA 503 (11 August 2022; TanzLII), we stated that: "Even though the evidence o f identification by recognition by an identifying witness who is familiar with the culprit might appear ideal in comparison with visual identification by a total stranger, the Court has held that the evidence should not be treated in isolation from the conditions for a favourable identification." This is the law. As we stated above, the instant rape incidence occurred during the night. It was in the bathroom situated some few meters from the residential house. The evidence of identification by recognition of PW1 goes as follows at page 8 of the record of appeal: " Tarehe 29/01/2023 nilikuwepo nyumbani mida ya saa 3 usiku. NUienda kuoga. Bibi aiikuwepo nyumbani niiipofika bafuni na kujipaka sabuni kichwani nilishikwa mkonof nilinawa uso Hi nimuone ni nani nikamuona Paschal Ng'hungu au Baba Erasto. Ninamuona hapo nyumbani, tunaishi nao. Alinilaza chini, nilipotaka kupiga kelele aliniziba mdomo. Aiivua suruali yake mimi nilikuwa uchi. AHtoa uume wake na kuuweka 5

kwenye uke wangu alipomaliza aliniambia nisimwambie mtu. AHtoka na mimi nikatoka nakimbia nimejifunga kitenge kwenda kwa Bibi Magreth Philipo na kumwambia nimebakwa na Paschal. A/ipiga simu kwenye uongozi wa eneo, Juma Jijunumbu akaja na watu wengine." It is in no doubt that, the above excerpt is crowded and surrounded with unexplained deficiencies calling for mistaken identity by recognition. In the first place, aiders of identification in that dark night have not been stated. Putting it different, what really aided PW1 to recognize the appellant by his name and being a tenant to PW2. Second, besides that total failure to state aiders of identification, PW1 did not describe how it came to her memories that the ravisher is a neighbor and a tenant to PW2. Three, along with naming the appellant to PW2, PW1 did not describe other features to PW2, for example the trousers' colour which she mentioned. Four, the distance between the bathroom and where PW2 was which would eliminate the possibility of mistaken identity. With the foregoing analysis, it is obvious that, PW l's style and mode of identification by recognition have indeed departed from general principles of identification which requires presence of favourable conditions for proper or unmistaken identity. Identification by recognition

of PW1 in circumstances where even the source of light has not been disclosed, failed to eliminate the possibility of mistaken identity by recognition. This being a second appeal, generally, a concurrent finding of facts by the two courts below, should not be interfered unless it is clearly shown that there was misapprehension of evidence leading to miscarriage of justice. See for instance Jamal Ally @ Salum v. Republic (Criminal Appeal No. 52 of 2017) [2019] T7CA 32 (28 February 2019; TanzLII). In the instant appeal, we stated, and worthy repeating that, PW1 neither named the aiders of identification nor described conditions which were favourable for unmistaken identity by recognition nor described how she came to recognize the appellant by name and also as a neighbour and tenant to PW2. It was improper and in a complete misapprehension of the evidence of PW1 by the two courts below to interprete that, the circumstances were favorable for unmistaken identification by recognition. For that matter, we find justification for interference. The appellant was therefore not recognized by PW1 in that material night to have raped her in the bathroom. In that regard, the prosecution has failed in total to prove the case beyond reasonable doubt. Accordingly, the

appeal is allowed. Conviction is thus quashed and the sentence is hereby set aside. We order immediate release of the appellant, unless there are other lawful causes for his stay in custody. DATED at MWANZA this 26th day of February, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 2n d day of March, 2026 in the presence of appellant in person, Mr. John Saimon Joss, learned State Attorney for the respondent/Republic and Ms. Gloria Masige, Court Clerk, is hereby certified as a true copy of the original.