Edmund Emanuel @ Erro @ Edmund Mchuno vs Republic (Criminal Appeal No. 307 of 2023) [2026] TZCA 131 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MWANDAMBO, J.A., MWAMPASHI, J.A. And MLACHA, JJU CRIMINAL APPEAL NO. 307 OF 2023 EDMUND EMANUEL @ ERRO @ EDMUND MCHUNO................................................................ APPELLANT VERSUS THE REPUBLIC................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Arusha) (Kahvoza, J.) dated the 02n d day of May, 2023 in Criminal Sessions Case No. 43 of 2021 JUDGMENT OF THE COURT 09th & 26th February, 2026 MWAMPASHI, J.A.: Before meeting her death, Theresia Qwaray (the deceased), an old woman aged above 80 years and a resident of Gocho Village within the District of Hanang in Manyara Region, was paralyzed and bedridden. She passed away on her bed at around 23:00 hours on 13.06.2020 allegedly after being raped 5 hours back, that is; at about 18:00 hours. According to Erasto Salutarw Mushi (PW1), the medical doctor who performed the autopsy of the deceased's body and from the Postmortem Examination Report (Exhibit PI), the cause of death was not the illness the deceased was suffering but heart attack which resulted from traumatic shock after being raped. Linked to the alleged rape that, as alluded to above, caused the death of the deceased, was the appellant herein, Edmund Emmanuel @ Erro @ Edmund Mchuno, who was thus, arraigned before the High Court of Tanzania at Arusha in Criminal Sessions Case No. 43 of 2021, charged with the offence of murdering the deceased contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E.2019] (The Penal Code). As the appellant denied the charge, the prosecution called 4 witnesses and tendered one documentary evidence (Exhibit PI). Of the 4 prosecution witnesses, the star witness was Reuben Jeremiah (PW2) whose evidence was to the effect that, on 13.06.2020 at 18:00 hours, he was passing outside the deceased's house when he heard the deceased, who was his great grandmother, screaming and raising an alarm calling for help. He entered in the house and was at the sitting room when he asked the deceased who was in her bedroom, what was happening. The deceased told him that, she had been assaulted by a thug. PW2 was still at the sitting room when a person he allegedly identified to be the appellant, emerged from the bedroom, pushed him aside, ran out and locked the door to the house from outside. At PW2's request, one Rehema opened the door for him and he informed her that, the appellant had assaulted the deceased. PW2 asked Rehema to call people and when people, including Rehenna's mother came, the deceased's condition worsened before she later died at around 23:00 hours. In cross-examination, PW2 stated that he did not enter the deceased's bedroom, that it was his mother who examined the deceased and further that, he named the appellant to their hamlet chairperson (PW4) and Rehema. He also stated that the deceased's house had a sitting room and two bedrooms and further that, after the deceased had passed away at 23:00 hours, her dead body was taken to the hospital. PW2 denied to have ever grazed their head of cattle in the appellant's farmland. He also denied that his family had any dispute with the appellant. Scandrian Patrice testified as PW4 telling the trial court that, after being informed of the incident at about 19:00 hours, he rushed to the deceased's house where he found her in agony. He stayed at the deceased's house until at around 23:00 hours when the deceased passed away. Thereafter, he with militia men managed to arrest the appellant from his home and locked him in the village offices. In the morning, he informed the Village Executive Officer, Alphonce Francis (PW3) whose 3 evidence was to the effect that, after getting at the Village offices, he interrogated the appellant who admitted to have raped the deceased in fulfilment of a witchdoctor's conditions. It was PW3's further testimony that, at noon, police officers who were accompanied by the doctor (PW1) came to fetch the appellant and for medical examination of the deceased body. According to PW3, the doctor who examined the dead body in the deceased's bedroom concluded that, the deceased died from heart attack caused by stress. When asked in cross-examination, PW3 stated that, the deceased's house had two rooms, a sitting and bedroom. The appellant relied heavily on the defence of alibi, notice of which had been earlier given in accordance with section 194 (4) of the Criminal Procedure Act, Cap 20 (the CPA). He denied to have raped the deceased or caused her death. He maintained that, on the material day and time he was nowhere around Gocho Village. He explained that, on 13.06.2020 he had been at Dodoma till at 13:30 hours when he boarded Mtei Bus to Katesh where he arrived at around 18:00 hours. To substantiate his claim that he had been at Dodoma, he tendered a bus ticket which was received in evidence as Exhibit Dl. He further defended himself by stating that, at 18:50 hours he left Katesh for Gitting where he arrived at 21:00 hours. From there he hired a motorcycle which took him to Gocho where he arrived at around 23:00 hours before he was arrested on accusations that he had raped the deceased. The appellant denied to have gone to any witchdoctor. He also attacked PW2 for giving fabricated evidence against him because of their quarrels following him finding PW2 grazing cattle in his farmland. After a full trial, the High Court found that the fact that the deceased died was not disputed as there was sufficient evidence to prove it. It was also found by the High Court that there was enough evidence, particularly from PW1 and the Postmortem Examination Report (Exhibit PI) that, the deceased death was not natural. The High Court was satisfied that, according to PW1, the deceased died from heart attack as a result of stress arising from the rape committed against her. It was the High Court's further finding that, besides the deceased being an old woman who was paralysed and bedridden, the rape committed against her hastened her death in terms of section 203 (d) of the Penal Code. As for malice aforethought, the High Court reasoned that because the offence of rape attracts the sentence of 30 years' imprisonment, then in terms of section 200 (c) of the Penal Code, malice aforethought was established. Regarding the issue on who raped the deceased hence causing her death, the High Court relied on PW2 and concluded that it was none other than the appellant. It was found that since the offence was committed during day time before it was dark and as the appellant was not a stranger to PW2, the appellant's identification by recognition was positive. The appellants defence of 3//Z 7/w as totally not discussed or considered by the High Court. What was considered by the High Court in the appellant's defence was only the appellant's defence that, there was hatred between him and PW2. On this, it was concluded that the defence did not raise any doubt in the prosecution case. Based on the above findings, the High Court concluded that the case against the appellant had been proved to the hilt and it thus, found the appellant guilty of the murder as charged and convicted him accordingly. The conviction was followed by the mandatory sentence of death by hanging. Aggrieved, the appellant has preferred the instant appeal raising five grounds of complaint which are paraphrased as hereunder: 1. The prosecution did not prove the case beyond reasonable doubt 2. The conviction was based on incredible prosecution evidence. 3 The preliminary hearing was not conducted in accordance with the law: 4. The defence evidence was not considered\ 5. The identification evidence was not watertight 6 At the hearing of the appeal, while the appellant had the services of Messrs. Said A. Saidi and Fidel Peter, learned advocates, the respondent Republic was represented by Ms. Saada Mohamed, learned Senior State Attorney assisted by Mr. Raphael Rwezahula, learned State Attorney. In arguing the grounds of appeal, having abandoned the 3r d ground of complaint, Mr. Saidi began with the 1s t, 2n dand 5thgrounds which were combined and argued together. He submitted that, as rightly observed by the High Court in its judgment, the prosecution case against the appellant was based on circumstantial evidence which was, however, neither corroborated nor proved beyond reasonable doubt. On this, he placed reliance on the decision of the Court in Jimmy Runangaza v. Republic [2018] TZCA 188 where the Court stated that, it is a matter of law or practice that, no conviction can be sustained without corroboration if it is based on evidence that requires corroboration and also that, circumstantial evidence must be proved beyond reasonable doubt. Mr. saidi attacked PW2's credibility and reliability, particularly in regard to his testimony that he saw the appellant coming out of the deceased's bedroom. He contended that, PW2's testimony in that respect needed corroboration. Pointing out the reasons for discrediting PW2's testimony, Mr. Saidi argued that, PW2 testified that the deceased was taken to the hospital while the testimony from all other prosecution witnesses is to the effect that the deceased was never taken to the hospital but that the autopsy of her dead body was performed in her bedroom. It was also pointed out by Mr. Saidi that, while according to PW2, the deceased's house had two bedrooms and a sitting room, the evidence from other witnesses is to the effect that, the house had one bedroom and a sitting room. Mr. Saidi further argued that, while PW2 claimed that he was locked in the house from outside by the appellant and that it was one Rehema to whom he also named the appellant who opened the door for him, Rehema was not called to testify. Another witness who to Mr. Saidi was material and who ought to have been called to testify was PW2's mother who PW2 claimed examined the deceased. Furthermore, Mr. Saidi contended that, the above pointed out inconsistencies and contradictory evidence of PW2, go to the root of his credibility and reliability, He insisted that, the High Court ought to have not believed PW2's story that he saw and positively identified the appellant as the person who allegedly came out of the deceased's bedroom. Regarding the 4th ground of appeal, it was submitted by Mr. Saidi that the appellant's defence of alibi which proved that, on the material 8 day and time, the appellant was not at Gocho Village was not considered by the High Court. He further argued that, in support of his defence the appellant tendered the bus ticket as Exhibit D1 which was not discussed at all. Mr. Saidi insisted that the appellant's defence of alibi raised reasonable doubts in the prosecution's case against the appellant particularly on the fact that the appellant was nowhere around Gocho Village at the time the offence against the deceased was allegedly committed. For the above reasons, Mr. Saidi concluded that, the case against the appellant was not proved beyond reasonable doubt as required by the law and that the High Court erred in convicting the appellant and in ordering him to suffer death by hanging. He thus, prayed for the appeal to be allowed by quashing the conviction, setting aside the sentence imposed and by ordering for the release of the appellant. Ms. Mohamed, learned Senior State Attorney, for the respondent Republic, did not support the appeal. While she maintained that the case against the appellant was proved to the hilt, she however, conceded that, the appellant's defence of alibi was not considered or discussed by the High Court as complained on the 4thground of appeal. On this, she invited us, being the first appellate court, to step into the shoes of the High Court and consider the defence. She nevertheless, contended that, the defence did not raise any reasonable doubt in the strong prosecution evidence against the appellant. Responding to the 1s t, 2n d and 5th grounds of appeal which were argued together under the theme, whether or not the case against the appellant was proved beyond reasonable doubt, it was affirmatively submitted by Ms. Mohamed that, the case against the appellant was proved to the hilt. She argued that, the facts that the deceased died, and also that her death was not a natural one but was caused by heart attack which resulted from traumatic shock after being raped, was proved by PW1 and Exhibit PI. Ms. Mohamed submitted further that, there was strong circumstantial evidence proving beyond reasonable doubt that, it was the appellant who raped the deceased hence causing her death. Placing reliance on the decisions of the Court in Waziri Amani v. Republic [1980] T.L.R. 250 and Simeo Stephano @ Chaurembo v. Republic, Criminal Appeal No. 324 of 2020 (unreported), Ms. Mohamed submitted that, the appellant was positively identified by recognition when he was seen coming out from the deceased's bedroom by PW2. She argued that, the offence was committed during day time and the appellant was not a stranger to PW2 hence there was no likelihood of mistaken 10 identity. It was insisted by Ms. Mohamed that, ail prosecution witnesses including PW2 were credible and their respective evidence was not shaken in cross-examination. She pointed out that, in terms of the case of Goodluck Kyando v. Republic [2006] TZCA 428, there was no reason for not believing PW2. Citing the case of Juma Iddi Yohana v. Republic [2025] TZCA 5, Ms. Mohamed argued that the prosecution witnesses who were called to testify sufficiently proved the case and one Rehema who was not called was, in that regard, not a material witness. In conclusion, it was prayed by Ms. Mohamed that the appeal be dismissed for being baseless. She insisted that the case against the appellant was proved to the hilt. In his brief rejoinder, Mr. Saidi reiterated his submissions in chief arguing that Rehema was a material witness whose evidence could have corroborated PW2's doubtful evidence. He prayed for the appeal to be allowed. The main issue for our determination is whether the case against the appellant was proved to the required standard. Before we embark on that task, we should however, restate the principle that, this being a first appeal, it is in the form of re-hearing. The Court is duty bound to re evaluate the entire evidence on record, subject it to a critical scrutiny and li if warranted, to arrive at its own conclusion of fact. See- D.R. Pandya v. R [1957] E.A. 336, Iddi Shaban @ Amasi v. Republic [2008] TZCA 135 and The Director of Public Prosecutions v. Stephen Gerald Sipuka [2021] TZCA 330. We shall begin our discussion with the defence of alibi. As we have alluded to earlier, the appellant properly raised the defence by filing the relevant notice on 06.03.2023 before the commencement of the hearing of the case as required by section 194 (4) of the CPA. The appellant claimed that, on the material day he was at Dodoma and further that at 18:00 hours when the offence was allegedly committed, he was at Katesh having arrived there from Dodoma on his way to Gocho Village. He substantiated his claim by tendering a bus ticket which was admitted in evidence as Exhibit Dl. It is also clear, as conceded by Ms. Mohamed that, the trial court disregarded and did not discuss the defence. In that regard, being the first appellate court, we are duty bound to step into the shoes of the trial court and consider the defence. First of all, simply defined, an alibi is a claim by an accused person in his defence that, at the time an offence he is charged with, was being committed, he was somewhere else not even close to the scene of crime making it impossible for him to commit the offence. The defence of alibi 12 brings in an undisputable fact that, a person cannot be in two places at the same time. It is also a trite law that, where the defence of alibi\s properly raised, it is not the duty of an accused person to prove it. In such circumstances, the burden of proof shifts to the prosecution which is required to prove that the alibi is false and that at the time of commission of the offence, the accused person was in the vicinity of the scene of crime. In the case of Richard Otieno @ Gullo v. Republic [2021] TZCA 120, we referred our earlier decision in Shafii Abdallahman Mboja v. Republic, Criminal Appeal No. 104 of 2017 (unreported) in which the following passage from the decision of the Court of Appeal of Kenya in Jane Wanjiru v. Republic [2006] eKLR was quoted with approval: "Once again, the learned Judge clearly appreciated that, once the appella nt had raised the defence o f alibi, the evidentialburden shifted back to the prosecution to prove beyond reasonable doubt that the appellant's alibi was false. We would repeat and we shall continue to assert that there is no burden upon the accused person who raises the defence o f an alibi to prove the truth o f that defence". In the case at hand, as we have alluded to earlier, the appellant raised an 3//jf?/that, on the material day he had been at Dodoma and that at 13 13:30 hours he boarded Mtei Bus Service and left Dodoma for Katesh where he arrived at 18:00 hours. Thereafter at 18:50 hours he left Katesh for Gocho where he arrived at around 23:00 hours. On its part, the prosecution upon which the evidential burden of proof had shifted, did not even attempt to bring any evidence to the contrary. In that regard, the prosecution did not discharge its burden of proof. The appellant's defence of alibi was thus not disproved. That being the case, we hold that, since at 18:00 hours when the deceased was allegedly raped, the appellant was at Katesh and thus nowhere around Gocho Village and as the appellant as a human being, could not have been both at Katesh and Gocho Village, then it is not him who raped the deceased. The 4th ground of appeal has merit and it is accordingly allowed. The above finding on the 4th ground of complaint regarding the defence of alibi suffices to dispose of the appeal. However, for the sake of completeness, we find it apt to discuss, albeit in brief, the complaint on PW2's identification evidence and his credibility and reliability. Without beating around the bush, we are in agreement with Mr. Saidi that when PW2's evidence is critically scrutinised, it leaves a lot to be desired in as far as his credibility and reliability are concerned. First of all, his piece of evidence that after passing away the deceased was taken to 14 the hospital is in sharp contradiction with the evidence of other prosecution witnesses whose evidence is to the effect that the deceased remained in her bedroom and even the autopsy of her dead body was performed therein. Again, while it was PW2's testimony that the deceased's house had two bedrooms and a sitting room, the evidence from most of the prosecution witnesses testified that the house had one bedroom. It is also our considered view that, it is doubtful if the person PW2 claimed to see emerging from the deceased's bedroom was the appellant, because PW2's identification evidence was not watertight and could not be relied upon to support the conviction. While we note that, according to the evidence on record, the offence in question was committed at 18:00 hours which, according to section 5 of the Penal Code is day time, we are still in doubt if the light in the house was of enough intensity for PW2 to have positively identified the person who was allegedly seen running out from the deceased's bedroom. We are of that view because 18:00 hours is on borderline to 19:00 hours which is night time and there is no evidence if at the sitting room there were windows wider enough to allow the light from outside in. Further, from the testimony of PW2, it is vividly clear that, it took just seconds for the person who allegedly came out from the bedroom to get out of the house hence denying PW2 ample time to positively identify whoever was the person. It should also be borne in mind that, according to PW2, the person he allegedly saw was in a run and he pushed him aside before he vanished. Under the circumstances, we do not think the prevailing conditions were favourable for positive identification. Coupled with the above, is the fact that there is no sufficient evidence to prove that PW2 named the appellant at an earliest possible opportunity. Though PW2 claimed that, he named the appellant to one Rehema who opened the door for him after the appellant had ran away and locked him in from outside, Rehema was not called to testify. Rehema was a material witness who could have supported PW2's evidence that he positively identified the appellant. Failure to call Rehema entitles the Court to draw an adverse inference against the prosecution. See-Kudura Ally @ Kijonju V. Republic [2006] TZCA 72 and Boniface Kuandakira Tarimo v. Republic [2011] TZCA 194. In insisting that the ability of the witness to name the offender at the earliest possible moment is an all assurance of positive identification, the Court in Chacha Jeremiah Murimi and 3 Others v. Republic [2015] TZCA 52, stated that: 16 " 7/7 matters o f identification, it is not enough mereiy to iook at factors favouring accurate identification, equally important is the credibility of the witness. The conditions for identification might appear ideal but that is not a guarantee against untruthful evidence . The ability of the witness to name the offender at the earliest possible moment is in our view, reassuring though not a decisive factor." Furthermore, in the case of Amos Sita @ Ngili v. Republic [2023] TZCA 17697, the Court stated that: "In addition to the above, the second appellant was mentioned and described as the culprit to the police at the very earliest opportunity. The ability of PW1 to mention and describe the second appellant at the earliest possible moment is an assurance of her reliability ' ' [Emphasis added] Guided by the above authorities and in view of our observations on PW2's identification evidence, we find that PW2's evidence in that regard, was patently doubtful and not watertight. The High Court erred in relying upon such evidence in convicting the appellant. All said and done, we are satisfied that the case against the appellant was not proved to the hilt as the law requires. The appeal is 17 thus, meritorious and it is allowed. Consequently, we quash and set aside the conviction and the sentence imposed on the appellant and order that he be released forthwith from prison unless he is so held for some other lawful cause. DATED at ARUSHA this 25t h day of February, 2026 L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 26t h day of February, 2026 in the presence of Mr. Said A. Said, learned Counsel for the Appellant and Ms. Mary Lucas, learned Principal State Attorney for the respondent / Republic and Mr. Fahmi Karemwa Court clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 18