Paulo Saitabau vs Republic (Criminal Appeal No. 194 of 2023) [2025] TZCA 1154 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: LILA. J.A.. FIKIRINI J.A. And RUMANYIKA. J J U CRIMINAL APPEAL NO. 194 OF 2023 PAULO SAITABAU ......................................................................... APPELLANT VERSUS THE REPUBLIC ........................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate Court Arusha at Arusha) (Mshasha. PRM. Ext. Jur.1 ) Dated the 25th day of October, 2022 in Criminal Appeal No. 48 of 2021 JUDGMENT OF THE COURT 1st & 17th October, 2025 LILA, J.A: The appellant, Paulo Saitabau Mollel @ Bahati, was implicated with an offence of carnally knowing against the order of nature of a girl aged eighteen (18) years, an incident which occurred in a certain room at Sakina area within Arusha City on 13/10/2018. He was thus arraigned to answer a charge of unnatural offence contrary to section 154(l)(a) and (2) of the Penal Code. Upon a trial that ensued before the Resident Magistrates' court of Arusha following his disassociation with it, he was convicted and sentenced to thirty (30) years imprisonment. His appeal to the High Court Arusha sub-registry failed. Before the Court, this is his second appeal. During the trial, for the respondent Republic, five witnesses featured while the appellant was the sole defence witness. The prosecution witnesses were; Elisa Raphael Lotakajack (PW1), Fatina Nyombo Juma (PW2), the victim who shall be so referred or PW3 to masquerade her identity, F. 6655 D/CPL Amour Ukasha (PW4) and Adamu Mathew Masama (PW5). Neither of these witnesses witnessed the incident. PW1 and PW2 are the victim's parents. Both were informed through a phone call that the victim was sodomized by one Bahati Saitabau and was at Azimio Police Station where they went and were given a PF3 to take the victim to Levolosi Hospital. Their efforts to trace the named culprit was unsuccessful only to be informed on 16/11/2018 by Ngaramtoni Police Station that the suspect had been arrested. PW4 recorded the appellant's cautioned statement (exhibit PI) which was taken outside the four hours stipulated under section 50(1) of the Criminal Procedure Act (the CPA) but the High Court, on first appeal, found the delay justified hence not fatal on account of PW4 having stated that the delay was caused by the appellant having another case at the same police station. Medical examination of the victim was done by PW5 coming to a conclusion that there was blood and bruises at the victim's anal part. 2 In his sworn defence, the appellant flatly disassociated himself from the accusation claiming that he was arrested and taken at Mbande area on accusation of buying a stolen mobile phone and was taken to police where the matter was resolved by the owner taking his phone. But he was not released, instead, he was tortured and forced to sign a statement he did not know which implicated him with an accusation of sodomizing a girl who was at that police station, the charge he denied when he was taken to court. He denied knowing the girl. He discounted the evidence by PW2 and PW3 that it was hearsay. The star witness was the victim (PW3). On the whole she said, while going to Kiranyi Secondary School where there was a graduation ceremony, she tried to look for a short-cut way to the school which she was not familiar with. Luckily, she met a person she later said was the appellant, greeted him and asked for such way. That the appellant agreed and accompanied her but, on the way, they met his friend with whom he stood talking with while she proceeded towards the school. The two later joined her. No sooner had they walked together; the friend left them to collect a mobile phone he said he had left at home. He did not join them again. As to what transpired after she had remained with a person she alleged to be the appellant, part of her story relevant to the determination of this appeal is this: 3 .. The accused pushed me in the nearest house, took off my clothes then he sodomized me. He also took off his clothes. We stayed in that house almost 20 minutes. After the accused finished to sodomize me, the accused friend together with another boy came inside that house. The accused went outside and those two boys remained inside. One boy took off condom, I shouted, another boy took off a knife and threatened me by using the said knife, ordered me not to shout because nobody will come and help me. I opened a window and knocked. My hand started to bleed. Those boys after they saw that they run away and my left hand had been cut by window mirror. After that I came outside and walked. I reached the place where there was a hut and a church. One boy appeared and asked me what's wrong with my hand. I toid him what happened to me. He helped me he gave me first aid by putting leaf on my hand. I showed him the place where the accused sodomized me and those two boys watched us. That he recognized them and mentioned their names as Bahati and Faraja. I gave him mobile phone number o f my mother and he texted her. I, together with that boy went at Sakina Police Station where I wrote the statement My mother came there and we went to the hospital for checkup. Later the accused [wasjarrested on 16/11/2018 at Ngaramtoni area. It was my first time to see the accused on the day which he sodomized me. The second time I saw him at Ngaramtoni police Station. I recognized him through his appearance, his left eye has a problem also he is black and thin..." Based on the totality of the above evidence, both the trial court and the first appellate court were of a concurrent finding that the charge was proved as against the appellant beyond reasonable doubt. That culminated into his conviction and sentence above stated. The appellant filed eleven (11) grounds of complaint in his memorandum of appeal. Before us, he appeared in person and unrepresented. As we set ready for hearing of the appeal, he abandoned grounds number 1, 5, 7, 8, 9, 10 and 11. He relied on the written statement of arguments he had earlier on lodged elaborating the remaining grounds of appeal and left it for the Court to determine the appeal urging the same to be in his favour. His written statement of arguments in respect of the remaining grounds of appeal, basically raised and elaborated six main complaints against conviction and sentence. One, that there are contradictions between the witnesses' evidence and variance between the charge and evidence. In it, his first complaint was that while PW4 claimed in court to be the drawer of the sketch map of the scene of crime lead by the victim, the sketch map found at page 43 shows that it was drawn by F 6655 CPL Amour lead by Mary Joshua. Secondly, he complained that PW4 on the one 5 hand differed with PW1, 2, and 3 on the other hand on the date of his arrest as the former said it was on 15/11/2018 while the later said he was arrested on 16/11/2018. Moreover, he complained that the name of the person taken from the lock up by PW4 and the one appearing in the charge are different. Likewise, while PW2 introduced herself as Fatina Nyombo Juma, PW2 said his wife is called Fatina Elisa. Another contradiction complained of was in respect of what caused injuries on the victim's hand. While PW2 said she was injured by the appellant, the victim, herself, said she was cut by the window glass. The last alleged contradiction was in respect of who was first to inform PW2 of the incident between Sakina Police Station and PW3 who said she gave her phone to the good Samaritan boy who did text his father (PW2). In fortifying his complaints, he referred the Court to its decisions in the case of Richard Otieno @ Gullo vs Republic, Criminal Appeal No. 367 of 2018, Abiola Mohamed @ Simba vs Republic, Criminal Appeal No. 291 of 2017 and Shabani Gervas vs Republic, Criminal Appeal No. 457 of 2019 (all unreported). Two, that the victim was not a reliable witness. His contention was that PW3 reported to her father that she was raped the same as she did to the doctor (PW5) as revealed by the PF3 (exhibit P4) which was different with the testimony she gave in court. Further on this aspect, he complained that PW3 did not state, during examination in-chief, that she was 6 threatened and shouted for help but during cross-examination she said she did so. His third complaint is that exhibit P3 was not read out in court after it was admitted in evidence as revealed at page 29 of the record of appeal which is a contravention of the law as explained in the case of Robinson Mwanjisi and Another vs Republic [2003] T.L.R. 218. In his fourth complaint, the appellant took issue with the cautioned statement which he said it was improperly taken beyond the stipulated period of four hours after his arrest and that it was not read out to him which was a contravention of the requirements of sections 50, 51, 57 and 58 of the Law of Evidence Act. In his view, the omission denied him the right to be heard Sufficiency of visual identification evidence was brought to question by the appellant that it was not water tight to warrant his conviction. He argued that the victim admitted the appellant being a stranger to her. She said he was named as being Bahati by a boy who came to her rescue. Citing the case of Moses Deo vs Republic [1987] T.L.R 134, he pressed that to ascertain her assertion that she saw and identified him, there was need for an identification parade to be conducted. He further discredited the victim for not naming him (Bahati) immediately after arriving at the police station citing the case of Marwa Wangiti Mwita vs Republic [2002] T.L.R. and Jaribu Abdallah vs Republic [2003] T.L.R. 271 as the ones which gave that guidance. Otherwise, the prosecution would have resorted to another alternative of calling as a witness the said good Samaritan who she claimed to have identified and named him. The sixth and last complaint was failure by the prosecution to call the good Samaritan, who was a crucial witness. It was his view that such failure dented the prosecution case warranting both courts below to draw adverse inference as was held by the Court in Ramadhani Kasimu vs Republic, Criminal Appeal No. 417 of 2020, Yohana Kurwa @ Mwigulu and Three Others vs Republic, Consolidated Criminal Appeals Nos. 192 of 2015 and Criminal Appeal No. 397 of 2016 and Anjonane vs Republic [1998] K.L.R. 60, Azizi Abdallah vs Republic [1991] T.L.R. 91 and Samweli Nyerere vs Republic, Criminal Appeal No. 65 of 2020 to augment his point. For the respondent Republic in this appeal are Ms. Neema Mbwana and Ms. Eunice Makala, both learned Senior State Attorneys. Ms. Makala supported the appeal. She prefaced her submission by consolidating all the grounds of appeal the effect of which she said they formed a single complaint that the charge was not proved against the appellant. She first outlined the ingredients of the offence the appellant stood charged and what was expected to be proved by the prosecution as being (1) penetration against the order of nature, (2) age of the victim and (3) the appellant's involvement. While making reference to Page 15 line 2 onwards of the record of appeal which constituted the victim's evidence, she submitted that the victim did not give prior description of the person she met and later ravished her to the police before the appellant's arrest because she had clearly stated that the appellant was not a person who was familiar to her. That PW3 said the appellant was identified and named by a good Samaritan to be Bahati but such person was not called to testify. According to her, such person would have supported the victim's assertion not only that she was carnally known or seen coming from the house in which she alleged that she was carnally known, but also that he saw and identified the appellant to be the ravisher. On that account, she argued, failure to call the good Samaritan entitled both the trial court and the first appellate court to draw adverse inference against the prosecution case that if such a crucial witness was called as a witness, he would have given evidence not in favour of the prosecution. More to that, Ms. Makala argued in support of the appellant's assertion that, the record is not clear whether the appellant's arrest was a result of the description given by the victim which the record shows she did not tell at the police station when the matter was reported. Due to such weaknesses on the prosecution evidence linking the appellant with the commission of the offence, Ms. Makala agreed with the appellant that the charge was not proved against him beyond reasonable doubt hence the appellant should benefit leading to his appeal being allowed. The course taken by the respondent Republic preempted the appellant rendering his necessity to rejoin a futile exercise. He just prayed his appeal be allowed with the result that he should be set at liberty. Much as it appears to us that it was not seriously contested that the victim was molested, and the evidence to that effect being in abundance, we are, like the learned Senior State Attorney, far from being convinced that the evidence established the appellant's involvement. It was of necessity for the prosecution to have proved beyond doubt that it was the appellant who ravished the victim. The occurrence of the rape incident was well established by the victim (PW3) and corroborated by PW5. But, in the instant case, as rightly argued by the learned Senior State Attorney, the most crucial issue is whether, on the evidence on record, it was established as a fact that it was the appellant who perpetrated the offence. Much as we are keenly aware that the Court has consistently stated that the best evidence in any sexual incident the best evidence is that of the victim (See Selemani Makumba vs The Republic, [2006] TLR 379, in the instant case, the victim categorically stated that the ravisher was not familiar to her and it was the good Samaritan who identified and named the ravisher to be one Bahati. He was material in affirming and ascertaining the fact that it was the appellant who was the very person he saw and identified at the crime scene as being Bahati or not any other person. The unexplained failure to summon him as a witness, entitled an adverse inference being drawn against the prosecution case. [See Aziz Abdallah vs Republic (supra)]. Worse still, the victim was unable to give the description of the ravisher to the police station prior to his arrest and the record is silent on what lead to his arrest. It is therefore hard to believe that she identified the appellant by the description and physical impairment she outlined after meeting him at the police station. Although the incident occurred during the day time hence in broad daylight, PW3's identification evidence was unreliable and accordingly we uphold the learned Senior State Attorney's view that the appellant was not sufficiently identified at the scene of the incident. There is yet another mishap we noted. Both courts below relied on the accused cautioned statement recorded and tendered by PW4 as exhibit PI. The first appellate court noted that it was recorded beyond the four hours prescribed under section 50(l)(a) of the CPA, It was, however, 11 satisfied that the delay in recording it was justified on account of PW4's explanation that the appellant had another case at the police station. It dismissed the appellant's complaint and acted on it to sustain the appellant's conviction. With respect to the Principal Resident Magistrate with Ext Jur, we think and hold that she strayed into error to hold so. In terms section 50(2) of the CPA, the period that shall not be reckoned as part of four hours includes the time when the person under restraint is being conveyed to a police station or the person is awaiting arrival of or is consulting with his lawyer. Otherwise, holding accused person for a long time interferes with his liberty and freedom. The officer who was assigned the duty to record the statement had to resort to the provisions of section 51 of the Act, by seeking extension of time under section 51 (1) (2)(a) and (b) of the CPA. [See Joseph Shabani Mohamed Bay and Three Others vs Republic, Criminal Appeal No. 399 of 2015 (unreported)]. As this was not done, exhibit PI ought to have been expunged from the record of appeal. Therefore, reliance on Exhibit PI to ground a conviction occasioned injustice to the appellant. In the final analysis we are constrained to agree with the respondent Republic that the charge against the appellant was not proved to the hilt. The prosecution evidence fell far short of placing the appellant at the crime scene hence his involvement in the commission of the offence charged. 12 For the foregoing reasons, we allow the appeal, quash his conviction and set aside the sentence imposed by the trial court and sustained in the first appeal. We hereby order his immediate release from prison if not held therein for another lawful cause. DATED at ARUSHA this 16th 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 Appellants in person, Mr. Philbert Msuya, learned State Attorney for the respondent and Ms. Jasmin Kazi, Court Clerk; is hereby certified as a true copy of thp nrininal D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 13