Faustine Matle Pihiro @ Amii Matle vs Republic (Criminal Appeal No. 155 of 2023) [2025] TZCA 1147 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: LILA, 3.A.. FIKIRINI J.A. And RUMANYIKA, J.A.^ CRIMINAL APPEAL NO. 155 OF 2023 FAUSTINE MATLE PIHIRO @ AMII MATLE .................................. APPELLANT VERSUS THE REPUBLIC.........................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania of Manyara, at Babati) (Kahvoza, J.) dated the 13th day of March, 2023, in Criminal Appeal No. 8 of 2023 JUDGMENT OF THE COURT 3rd & 17th October, 2025 RUMANYIKA. J.A.: On 20th October, 2022 the appellant, Faustine Mattie Pihiro was convicted by the District Court of Babati ("the trial court") and sentenced to life imprisonment for rape contrary to sections 130(1) and (2)(e) and 131(1) of the Penal Code, Cap. 16. He was also ordered to compensate the victim with TZS. 500,000.00. Dissatisfied, he appealed to the High Court of Tanzania Manyara at Babati ("the first appellate court") but again he lost the battle. The latter, in its judgment dated 13th March, 2023 upheld the trial court's decision. Further aggrieved, the appellant lodged the instant second appeal on six grounds. As such, the factual background giving rise to this appeal albeit briefly goes, thus: In the night of 2n d May, 2022, at around 03:00 hours at Saayo Village, in the District of Babati, the appellant and one Martin Gabriel (who is not a party to this appeal) entered the house of (PW1), the mother of the victim. The latter was, at the material time in bed together with her three children, including a 7 year's old girl. This girl shall be referred to as the victim or PW2 in order to conceal her identity. It is further alleged that the culprits languished PW1 in bed and the appellant forcefully had canal knowledge of the young girl. The said Martine Gabriel held her tightly stopping her from screaming for a help, while, the appellant turned to PW2 and raped her. That in that tragedy PW1 lost the consciousness for being exhausted by the fierce assailants. According to PW1, she came back to her senses in the next morning around 06:00 am only to find that the appellant had fled. But the said Martine Gabriel was still there deeply asleep on the bed as PW1 woke him up vainly. It was also asserted that PW1 reported the incident to neighbors including PW4, and one Sabina (PWl's mother) who mobilized some villagers and arrested the culprits. They were produced to Berui Police Post and later to Babati Police Station. The victims were issued with Police Forms 3 and clinically examined at Dareda Mission Hospital by Dr. Dora Joseph (PW3) who noticed bruises on the PW2's left thigh and some whitish substance in her vaginal cavity with some swellings, redness jaundice and lacerations with raptured hymen suggesting penetration. On his part, the appellant in his defence claimed that the case is fabricated and out of hatred between him and PW1 as he had reported PW1 to the police for dealing in illicit local brew ("gongo"). Also, the appellant raised defence of alibi, alleging that at the alleged material time he was away from the crime scene. The trial court rejected his defence, finding the prosecution case to have been proved beyond reasonable doubt. He was convicted as charged and sentenced to life imprisonment. His appeal to the High Court of Tanzania, Manyara at Babati was not successful as highlighted above. Still contesting his innocence, the appellant is before this Court on second appeal essentially with a total of nine (9) complaints. Six in the substantive and two in the supplementary memorandum of appeal respectively. The nine complaints are paraphrased as follows: One, the conviction was based on contradictory evidence of PW1 and PW2 about the time of the appellant's arrival at the scene, and hence improperly identified, two, the evidence of PW2 was not credible, three, the recording of PW2's evidence contravened section 127(2) of the Evidence Act, four, material variance between the facts of the case narrated at the preliminary hearing and the evidence adduced. Five, improper analysis of the evidence regarding the conduct of PW1, six, the unreasoned ruling on whether prima facie case was established, seven, the charge was defective for want of signature, eight, failure of the prosecution to call material witnesses and nine, the prosecution case was not proved beyond reasonable doubt. At the scheduled hearing of the appeal, the appellant appeared in person unrepresented whereas Mr. Benedict Kapela, learned Senior State Attorney teamed up with Messrs. Jackson Mayeka and Michael Martin, both learned State Attorneys representing the respondent Republic. From the very outset, we noted that, with respect to the charges of rape of PW1, the appellant's appeal before the High Court succeeded, as the offence of gang rape was not proven to the hilt. Therefore, unless the context requires otherwise, we will not refer to it or the said Martine Gabriel any further. The appellant adopted the two memoranda of appeal and the hand written script of his statement of arguments in support of the appeal. He questioned the alleged visual identification for being improper as the surrounding circumstances were unfavorable. He added that the alleged identification by recognition apart, neither PW1 nor PW2 had described him as the assailant or his attire. Further, he argued that, the purported victims did not state the light intensity which allegedly was emitted from the torch to eliminate possibilities of any mistaken identity. He thus, questioned the credibility and reliability of the victim's evidence, if at all the appellant and fellow spent the remaining part of the night at the crime scene as freely as alleged, without being reported to any one including the local authorities. Let alone the PW2's grandmother, a stone-throw neighbor and two others, if at all they responded to the alleged alarm raised immediately, none of them was called in court as a witness. Additionally, the appellant urged us to hold that the evidence of PW2 and that of her mother (PW1) was not credible enough for him to have been identified without any mistakes. He implored the Court to allow the appeal, to quash the conviction and to set aside the sentence restoring his liberty. Replying, Mr. Mayeka readily supported the appeal. He argued the appellant's complaints generally, solely based on the first complaint regarding identification, he considered this point to be decisive of the entire appeal contending that, PW2 could not have identified the appellant properly under the circumstances. Elaborating, Mr. Mayeka asserted that, PW2 may have been proved to be a child and her private parts penetrated, where consent is immaterial, however, the appellant was not identified to be the perpetrator of the act of rape. Mr. Mayeka had five reasons for his contention; One, PW1 who is the mother of PW2, may have been so exhaustively raped and for that reason lost consciousness coming back to her senses in the next morning as alleged. Therefore, she could not reliably tell what actually befell PW2 in those circumstances. Two, PW2 did not state the light intensity of the torch which aided her identify the culprits, three, it was not clear as to where the torch was hanged, let alone to whom it was directed and shone in order to eliminate any mistaken visual identity, four, like PW1 whose evidence was thrown overboard, the trial court found PW2 not credible enough because she could not have identified the appellant in the circumstances of the case. Further, Mr. Mayeka contended that, by any stretch of imagination, evidence of the purported two eye witnesses did not meet the threshold of Waziri Amani v. R [1980] T.L.R 250, regardless of the alleged identification by recognition. Five, the said shortfalls of the PW2's evidence left a million questions for lack of corroboration, as her grandmother, who is said to have arrived at the crime scene immediately but she left them helplessly. Nevertheless she was not called to testify in court. On account of the foregoing, the learned State Attorney added, the prosecution did not prove the case beyond reasonable doubt. Therefore, he beseeched us to allow the appeal by quashing the impugned conviction and set aside the sentence freeing the appellant. The appellant's rejoinder was very brief. He welcomed the learned State Counsel's concession to the appeal. He reiterated his prayer that the Court allow the appeal and set him free. We have considered the parties' consensual arguments, the authorities cited and reviewed the record of appeal critically. The pivotal issue that we are now called upon to determine is whether the appellant was identified to have raped PW2. First and foremost, we admit this one being such unusual and unfortunate case for two main reasons; One, it is where mother and daughter are alleged to have been raped in one and the same series of transactions under the same roof and two, it is where the culprits are alleged to have quenched their sexual thirst at about 21.00 hours and killed the night at the crime scene quitting between 06.00am and noon. At least PW2 told the court that PW1 in the material night sold some illicit local spirit, commonly known as "gongo" at the crime scene and that the appellant and the said Martin Gabriel attended and they had drink. She exhibited it as appearing on page 21 of the record of appeal being cross examined by the said Martine Gabriel. Nevertheless, for the reasons best known to PW1 and the appellant, they did not disclose this essential fact in their evidence. We find it material for better determination of this appeal, on the credibility of PW2. We shall explain. We note that, PW1 was co-victim of PW2 and thus, the co- eye witness. PW1 did not disown PW2 nor did she dispute the fact that she ran a "gongo" local shop at the crime scene. Therefore, it cannot be said that, under those circumstances only the appellant and Martine Gabriel were at that shop in that night of joy in exclusion of other men. Therefore, the evidence of PW1 and PW2 that they identified the appellant and fellow without stating clearly the light intensity of the torch used, left a lot to be desired. Equally, is their failure to state where exactly the torch was hanged and positioned, the height from where it was raised and shining from. Therefore, chances of mistaken identity of the appellant from such other men also in attendance at the said local illicit liquor shop would not be eliminated in the circumstances of the case. Moreover, PW2 may have shone the torch at the appellant and recognized him when allegedly, she was coming back to bedroom from attending call of nature. However, her failure to take advantage of that and scream for a help or to report the ordeal if any, to the said stone-throw neighbors dented her credibility and reliability. If anything, the evidence of PW2 could not be corroborated by the evidence of PW1 as the later had been discounted for similar reason of not being credible, as rightly contended by Mr. Mayeka. As such, we echoed this position in Vumi Liapenda Mushi v. R (Criminal Appeal 327 of 2016) [2018] TZCA 197 (12 October 2018; TanzLII), that evidence that requires corroboration cannot itself constitute corroboration. Moreover, it is stressed that evidence of visual identification at night is the weakest kind unless it is absolutely water tight, which is not the case before us. See- Waziri Amani (supra). Therefore, it is for the reasons stated above that we agree with Mr. Mayeka's contention that the appellant was not identified. We shall not proceed to determine the remaining complaints such as improper recording of the evidence of PW2, the charge being defective and so on, as it may serve academic purposes only. We decline to take that route. The upshot of it is that, we find merit in the appeal and hereby allow it. The impugned conviction and sentence are quashed and set aside, respectively. The appellant's liberty be restored immediately unless he is held for another lawful cause. DATED at ARUSHA this 17th day of October, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 17th day of October, 2025 in the presence of Appellant in person, Ms. Eunice Makala learned Senior State Attorney and Ms. Hilda Mcharo, Court Clerk via virtual Court and; is hereby certified as a true copy of the original.