John Christopher vs Republic (Criminal Appeal No. 458 of 2023) [2026] TZCA 167 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: KEREFU, J.A.. KAIRO. J.A. And NANGELA. J.A.) CRIMINAL APPEAL NO. 458 OF 2023 JOHN CHRISTOPHER ............................................................ APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nqunyale, J.) dated the 22n d day of May, 2023 in Criminal Case No. 127 of 2022 JUDGMENT OF THE COURT 18th & 26th February, 2026. KEREFU, J.A.: This is a second appeal by JOHN CHRISTOPHER, the appellant herein, who was before the District Court of Chunya at Chunya charged with unnatural offence contrary to section 154 (1) (a) of the Penal Code, Cap. 16 of the Revised Laws (the Penal Code). It was alleged that, on 30th November, 2021 at Machinjioni Hamlet, Makongolosi Village within Chunya District in Mbeya Region, the appellant had carnal knowledge of a boy child aged six (6) years, against the order of nature. To conceal the victim's identity and for purposes of protecting his privacy, we shall

henceforth refer to him as 'the victim' or simply 'PW2' as he so testified before the trial court. The appellant denied the charge laid against him and, as a result, the case proceeded to a full trial. To establish its case, the prosecution relied on the evidence of three witnesses and tendered one exhibit, to wit, the Police Form No. 3 (exhibit PI). On his side, the appellant testified alone, as he did not call any witness. The material facts of the prosecution's case which led to the appellant's conviction, as obtained from the record of appeal, can be briefly stated that, on 30th November, 2021, while PW2, was outside playing with his friends namely; Mateo, George and Joseph, someone showed up and gave them mangoes. It was the evidence of PW2 that, the said person was not knew to them as he used to give them mangoes and also used to give ride to PW2 on his bicycle. That, on that particular date, he asked them to escort him to take more mangoes from the bush. PW2 agreed and thus left with him on his bicycle while heading to the bush. PW2 went on to state that, upon arriving, the said person undressed the victim's clothes leaving him naked. He also undressed his trouser and took out his male member and carnally known PW2 against the order of nature. PW2 said that, he felt pain. After that bad experience, the said person took PW2 on his bicycle,

again, and left him at the roadside near Elisha's home. PW2 stated that, he managed to get home with some difficulties, as he could not walk properly. At home, PW2 narrated the ordeal to his grandmother who later, informed Catherine Matheo (PW1), the PW2's mother. In her testimony, PW1 supported the evidence of PW2 and added that, on the fateful date at around 10:00 hours, PW2 came back home crying and unable to walk properly. She asked what had happened and PW2 told her that, somebody took him to the bush and sodomized him. It was PWl's testimony that, in the course of interrogation, she found PW2 bleeding from his anus. She decided to report the matter to Makongolosi Police Station where they were issued with a PF3 (exhibit PI) and took PW2 to Makongolosi Health Centre. At the said Centre, PW2 was examined and treated by Anthon Simon Masanyiwa (PW3), the clinical officer, who found that PW2's anus was pulsating and had inflammation an indication that it had been penetrated. PW3 recorded his findings in exhibit PI. It was the further testimony of PW1 that, on 10th January, 2022, after lapse of about 40 days, he saw PW2 running towards her and asked her to go and see the person who sodomized him on 30th November, 2021. PW1 went on the road, where PW2 pointed a finger on

one person and, immediately, PW1 raised an alarm, people gathered and arrested the said person, who happened to be the appellant. Subsequently, the appellant was taken to Makongolosi Police Station. In his defense, the appellant who testified as DW1, denied to have committed the offence. He contended that, one day when he was on his way with his young brother going to the market, he heard people stopping them. He then saw PW1 and PW2 who were together with other people. PW1 accused him that he had sodomized her son (PW2), which he denied contending that, there could be a mistaken identity. He was however, suddenly, arrested by the people who were around and taken to Makongolosi Police Station and later arraigned before the trial court. It was his defence that he knew nothing about that crime. In her testimony, Halima Shabani (DW2), supported the evidence of DW1 and testified on how the appellant was arrested while on the way to the market. Having considered the evidence adduced by both parties, the trial court relied on the testimony of PW2, the best witness in this case, whose evidence was corroborated by PW1 and PW3 and found that the charge against the appellant was proved to the hilt. Thus, the appellant was found guilty, convicted and sentenced to life imprisonment.

Aggrieved, the appellant unsuccessfully appealed to the High Court where the trial court's conviction and sentence were upheld. Still undaunted, the appellant has preferred the present appeal. In his substantive memorandum of appeal lodged on 16th October, 2023, the appellant raised five (5) grounds of appeal. In addition, on 10th February, 2026, he lodged a supplementary memorandum of appeal with six (6) grounds, making a total of eleven (11) grounds which can conveniently be paraphrased into the following grounds of complaints; one, failure by the first appellate court to re-evaluate the evidence and properly consider his grounds of appeal; second; the evidence of PW2 was un-procedurally recorded; third, the visual identification by PW1 was not watertight to avoid all possibilities of mistaken identity; fourth, failure by the prosecution to summon material witnesses; fifth, that, the appellant's defence evidence was not considered; and finally, the prosecution case against the appellant was not proved beyond reasonable doubt. When the appeal was placed before us for hearing, the appellant entered appearance in person whereas the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney assisted by Mses. Ellen Masululi and Veronica Mtafya, both learned Senior State Attorneys.

Upon being given an opportunity to amplify on the grounds of appeal, the appellant adopted them and opted to initially hear the response of the respondent but reserved his right to rejoin, if the need to do so would arise. At the outset, Ms. Mtafya who addressed the Court on behalf of her colleagues expressed the stand of the respondent of opposing the appeal and intimated that she would argued the third ground in the memorandum of appeal conjointly with the first and third grounds in the supplementary memorandum of appeal. Then, the remaining grounds would be argued separately. We should state at the outset that, this being a second appeal, the Court will rarely interfere with concurrent findings of fact made by the courts below. The exceptions to the rule are when the findings are perverse or demonstrably wrong and occasioning miscarriage of justice. This position was well stated in Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149 and Mussa Mwaikunda v. Republic [2006] TLR 387. Starting with the third ground in the memorandum of appeal and the first and third grounds in the supplementary memorandum of appeal, on the appellant's complaint that he was not properly identified

by PW2, Ms. Mtafya referred us to page 13 of the record of appeal and argued that the appellant was properly identified by PW2 as he knew him prior to the incident. That, the identification by PW2 was by recognition which was more reliable than an identification of a stranger. Prompted by the Court, as to whether PW2 gave any description of the appellant to PW1 to enable her and or PW2 to identify the appellant, a more than month later, when alleged to have found him on the road. In her response, although, Ms. Mtafya conceded that, PW2 did not give any description of the appellant and or mentioned his name, she insisted that, since PW2 knew the appellant prior to the date of incident, he was properly recognized by PW2. Upon being further probed as to why Mateo, George and Joseph, the alleged friends of PW2 were not summoned to testify before the trial court to shed more light on how, on the fateful date, PW2 was taken from the playing ground by the appellant, Ms. Mtafya argued that, the burden of proof in criminal cases lies squarely on the prosecution shoulders and the standard has always been proof beyond reasonable doubt. She then cited section 152 of the Evidence Act, Cap.6 of the Revised Laws (the Evidence Act) and argued that, the said law does not require a specific number of witnesses to prove a fact, what is required is the quality of evidence and credibility of witnesses. That, in the

instant appeal, after being satisfied that the case against the appellants was proved beyond reasonable doubt through the evidence of PW1, PW2 and PW3, they found it unnecessary to summon other witnesses. She thus urged us to find that the appellant's complaint on these grounds is devoid of merit. In his brief rejoinder, the appellant did not have much to say other than, urging us to consider his grounds, allow the appeal and set him at liberty. It is on record that, the two courts below believed PW2's account that he positively identified the appellant at the scene of crime. We wish to remark that a proper identification of an accused person is crucial in proving a criminal charge in order to ensure that any possibility of mistaken identification is eliminated. In this regard, the Court has established principles in considering favourable conditions for identifying the accused. For instance, in Waziri Amani v. Republic [1980] TLR 250 the Court has set out guidelines on visual identification which the courts in this jurisdiction have uninterruptedly followed, that: "...evidence o f visual identification, as Courts in East Africa and England have warned in a num ber o f cases, is o f the weakest kind and m ost unreliable. It follow s therefore, that no

court should act on evidence o f visual identification u n le ss a ll p o s s ib ilitie s o f m istaken id e n tity a re e lim in a te d a n d th e co u rt is fu lly s a tis fie d th a t th e eviden ce b efo re it is a b so lu te ly w a te rtig h t" [Em phasis added]. Again, the Court went on to state the following conditions to be taken into account, that: "Although no hard and fast rules can be la id down as to the m anner a tria l Judge should determ ine questions o f disputed identity, it seem s dear to us that he could not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis o f a ll the surrounding circum stances o f the crim e being tried. We w ould, fo r exam ple e x p e ct to fin d on re co rd q u e stio n s a s th e fo llo w in g p o se d a n d re so lv e d b y him : th e tim e th e w itn e ss h a d th e accu sed u n d er o b se rva tio n ; th e d ista n ce a t w hich he o b se rve d him ; th e co n d itio n s in w hich su ch o b se rvatio n occurred, fo r in sta n ce , w h eth er it w as d a y o r n ig h t tim e; w h eth er th e re w as g o o d o r p o o r lig h tin g a t th e scen e; a n d fu rth e r w h eth er th e w itn e ss kn e w o r h a d seen th e a ccu se d b e fo re o r

n o t These m atters are but a few o f the m atters to which the tria l Judge should direct his m ind before com ing to any definite conclusion on the issue o f id en tity." [Em phasis added]. Following the above conditions, it is well settled that a witness who alleges to have identified a suspect at the scene of crime ought to give detailed description of such a suspect to a person whom he first reports the matter to before such a suspect is arrested. In Mohamed Alhui v. Rex [1943] 9 EACA 72 the erstwhile East African Court of Appeal stated categorically that: "In every case in which there is a question as to the identity o f the accused, the fact o f there, having been a description and term s o f that description, are m atters o f the highest im portance o f which evidence ought alw ays to be given first o f all, o f course, by the person who gave the description or purports to identify the accused and then by person to whom the description was given." In the instant appeal, it is clear to us that, pursuant to the evidence of PW1 found at page 9 of the record of appeal, although the incident took place in the morning at around 10:00 hours, in the broad daylight, in his evidence PW2 did not satisfy the above stipulated 10

conditions. For the sake of clarity, we find it apposite to reproduce the relevant parts of their evidence found at pages 9 and 13 of the record of appeal on this aspect. PW2 at page 13 of the record of appeal testified that: "At that time ; we were outside Joseph's home. He thereafter, passed ...the accu se d p erso n used to give us mangoes and on that date o f incident h e w as n o t n ew to me. He uses to ride me on his bicycle. "[Em phasis added]. Furthermore, at page 9 of the same record, PW1 testified that: "On 30/1/2021 a t 10:00 hours, my son came back home, fa il to walk properly and he was crying. I asked him as to what had happened. He replied to me that h e m e t som eone while he was playing and th e a s s a ila n t a ske d h im to g o a n d h a rv e st m angoes . He told me that if I see the said accused, I w iii re co g n ize h im . H e s a id to m e he kn e w th a t p erso n even b e fo re th e in c id e n t... "[Em phasis added]. From the above excepts, it is evident that, PW2, apart from stating that he knew the assailant prior to the incident, he completely failed to describe his physique, size and/or his attire on that fateful date. His testimony was of general nature. Even when PW2 explained the said i i

assailant to his mother, he never mentioned the assailant's name and or described him, as he all the time referred to him as ! som eone' ' assailant and or ' that person!. It is our considered view that, with this kind of generic description, it could not have been possible for PW1 to identify the said assailant later after lapse of about forty days on the road as Ms. Mtafya would like us to believe. We are mindful that, in her submission Ms. Mtafya insisted that, since PW2 knew the appellant prior to the date of commission of the offence, he was positively recognized by PW2, which is more satisfactory and more reliable than identification of a stranger. We agree with her on that principle. However, and with profound respect, we are unable to go along with her argument that, in the instant appeal, the appellant was positively recognized by PW2. We wish to state further that mistaken identity in recognition of close relative and or friends are sometimes possible, as we stated in our previous decisions in Shamir John v. Republic, Criminal Appeal No. 166 of 2004 [2007] TZCA 250 and Tabu Sita v. Republic, Criminal Appeal, No. 297 of 2019 [2022] TZCA 702. In the former case, having been faced with an akin situation, we stated that: "...recognition may be more reliable than identification o f a stranger, b u t even w hen th e 12

w itn e ss is p u rp o rtin g to re co g n ize som eone w hom he know s, th e co u rt sh o u id a lw a ys be a w a re th a t m ista k e s in re co g n itio n o f d o se re la tiv e s a n d frie n d s are so m etim es m ade . " [Em phasis added]. With the above caution in our mind, and given the general descriptions of the appellant by PW2 to PW1, it cannot be said that the appellant was positively recognized by PW2. Worse enough, the appellant was arrested on 10th January, 2022, after lapse of almost forty days from the date of commission of the alleged offence. That, the offence was alleged to have been committed on 30th November, 2021, and the appellant was arrested on 10th January, 2022, on the road on his way tothe market, after PW2, pointed a finger on him that hewas the person who ravished him previously. It is clear therefore that, although PW2 contended that he had known the appellant before the date of the incident, under the circumstances in which the identification was made, it cannot be said with certainty that the possibility of a mistaken identity was eliminated. Therefore, applying the above conditions in this appeal, we are, without any hesitation, of the view that the evidence of PW2, who was the key prosecution eye witness and the sole identifying witness, was

weak, hence the visual identification of the appellant by PW2 was not watertight to eliminate all possibilities of mistaken identity. On that basis and with profound respect, we find the submission made by Ms. Mtafya, on this aspect, unfounded and not supported by the record. We therefore agree with the appellant that his conviction was based on insufficient evidence of visual identification. We are increasingly of the view that, the failure by the prosecution to field these important witnesses, without reasons, would have prompted the trial Magistrate to draw an adverse inference against the prosecution. Specifically, we are with respect, surprised as to why the prosecution did not summon Mateo, George and Joseph, the PW2's friends whose, according to PW2's evidence they were together on the fateful date, at the playing ground, and they saw the culprit who took him on his bicycle and heading to the said bush. Admittedly, their evidence was so crucial in identifying and or recognizing the said assailant and also establish on how PW2 left the playing ground with that person. For purposes of emphasis, in Boniface Kundakira Tarimo v. Republic, Criminal Appeal No. 351 of 2008 [2011] T7CA 456, when considering a similar matter, we stated that: 14

"...It is thus now settled that ; where a witness who is in a better position to explain some m issing links in the party's case, is not called w ithout any sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only a perm issible one." See also Aziz Abdallah v. Republic [1991] T.L.R. 71, where the Court, earlier on, made corresponding remarks on the same issue. As such, we find merit in the third ground in the memorandum of appeal and the first and third grounds in the supplementary memorandum of appeal. On the basis of the reasons stated above, we are of the settled view that, had the trial court and the first appellate court properly scrutinized the evidence of PW2, which was the only evidence of visual identification of the appellant, they would have found that such evidence was not watertight to eliminate all possibilities of mistaken identity. Since the findings on these grounds suffice to dispose of the appeal, the need for considering the other grounds of appeal does not arise. In the event we allow the appeal, quash the conviction and set aside the sentence imposed on appellant by the trial court and sustained by the first appellate court. Consequently, we order for immediate 15

release of the appellant from prison forthwith, unless he is being held therein for some other lawful causes. DATED at MBEYA this 26th day of February, 2026. R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 26th day of February, 2026 in the presence of the Appellant in person, Mr. Augustino Magessa, learned State Attorney for the Respondent/Republic and Mr. Soud Omary, Court Clerk; is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 16