Paskal Anthoni @ Niki vs Republic (Criminal Appeal No. 134 of 2023) [2025] TZCA 1130 (16 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: SEHEL, J.A.. MAKUNGU. J.A. And FELESHI. J.A.^ CRIMINAL APPEAL NO. 134 OF 2023 PASKAL ANTHONI @ NIKI ........................................................ APPELLANT VERSUS THE REPUBLIC............................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Manyara Sitting at Babati) (KahyozaJL) dated the 21s t day of February, 2023 in Criminal Appeal No. 2 of 2023 JUDGMENT OF THE COURT 3rd & 16th October, 2025 FELESHI. J.A.: Pascal Anthon @ NIKI (the appellant) is assailing the decision of the High Court of Tanzania, sitting at Babati (the first appellate court) in Criminal Appeal No. 2 of 2023 which upheld the conviction and sentence of the District Court of Babati (the trial court) in Criminal Case No. 59 of 2022. Before the trial court, the appellant was charged with the offence of rape, contrary to sections 130 (1), (2) (a), and 131 (1) of the Penal Code, Chapter 16 (the Penal Code), for having on 30.3.2022 at Endadoshi Village within Babati District allegedly procured sexual intercourse of 87-year-old woman (her name withheld) without her

consent. We will hereinafter refer to her as "PW1" or "the victim." At the end of a full trial, the appellant was convicted and sentenced to thirty years imprisonment. Briefly, the antecedent background giving rise to this appeal is that, on 30.3.2022 at approximately 17:00 hours, the victim was herding her goats in an area commonly known as "Pori la Mzungu" in Endadosh Village within Babati District in Manyara Region which was a protected area. The appellant is alleged to have arrived and asked her why she was grazing her goats in that area. As the victim knelt praying for forgiveness, the appellant is alleged to have seized the opportunity, pushed her down, undressed his trousers and raped her. PW1 felt pain and bled. That incident was investigated, and the appellant was charged as aforesaid. During trial, PW1 gave evidence that on the fateful date, one boy went and asked her why she was grazing the goats there. Then the boy raped her. She then said the boy is Paskali Antoni. She further testified that she treated herself at home by applying petroleum jelly before reporting the incident to the police station on 31.3.2022 and attended a medical checkup on the next day (1.4.2022). Noela Daniel, a 13-year-old who was PWl's granddaughter (PW2) testified that when she went to 2

the place where PW1 was grazing her goats, she found somebody on top of her. She made an alarm for help, then she went to call "Mama Kunda" for further help. PW2 then testified that Paskali was well-known to her and was the one who had sex with PW1. Mariam Judisi @ Manu Banda @ Mama Kunda (PW3) testified that, on the material date, PW2, in a hurry, went and told her that somebody had apprehended PW1 and raped her in the bush. On their way to the scene of crime they met PW1 on her way home while walking with difficulty. PW3 said that Paskali was arrested on the next day. Paskali used to take care of Mama Stella's cattle. Titus Kiyeyeni, the Village Executive Officer (VEO) for Endadosh Village (PW4) testified to be the one who arrested Paskali on allegations that he had raped PW1. Paskali was Mama Stella's employee. On her part, D r. Neemaeli Sanka (PW5) testified that she medically examined PW1 on 1.4.2022 and filled the PF.3 (Exhibit PI). She said, she did not find anything suggesting that she was penetrated. That was perhaps due to passage of time. No. G.1578 D/CPL Erasmusi (PW6) investigated the case. He recorded the appellant's statement on 4.4.2022 and drew the sketch map on 12.4.2022. He tendered them and were admitted in evidence as exhibits P3 and P4 respectively. 3

In his defence, the appellant raised an alibi, claiming that on the fateful day he was fetching water with a power tiller and as it got a mechanical breakdown he returned home on 02.04.2022. His alibi was supported by Paulo Silvester (DW2), who claimed to have been with the appellant and Elizabeth Joseph (DW3), the appellant's employer, who said she had sent him to fetch water. The trial court evaluated the above evidence and, as reflected at pages 39 and 40 of the record of appeal, found PW1 had adduced conclusive evidence that she was raped. It found her evidence was corroborated by PW2 and convicted the appellant and sentenced him as alluded earlier. Aggrieved, the appellant appealed to the first appellate court which, having considered his grounds of appeal it found them unmeritorious. Specifically, while it found the alleged contradictory evidence, if any, were inconsequential, it held the defence of alibi was an afterthought. It was contented with the trial court's evaluation of evidence and finally dismissed the appellant's appeal. Still not amused with the first appellate court's decision, the appellant in this second appeal filed his memorandum of appeal on 23.3.2023 with one ground of appeal which he further supplemented it

with other four grounds in the supplementary memorandum of appeal filed on 27.9.2025. He also filed his written submissions in support of his appeal on 30.9.2025. We will not reproduce the four grounds of appeal contained in the supplementary memorandum of appeal on the reasons to be apparent in this judgment. So, the remaining paraphrased ground is that drawn from the original memorandum of appeal and it reads: "The first appellate court erred to uphold the decision o f the trial court while the prosecution case was not proved beyond reasonable doubt." During the hearing of the appeal, the appellant appeared in person, unrepresented, whereas Ms. Rose Kayumbo and M r. Raphael Rwezahula, both learned State Attorneys, teamed up representing the Respondent, Republic. When the appellant was invited to argue his grounds of appeal, he urged the Court to consider his grounds of appeal and the written submissions; allow his appeal and order his release from the prison. M r. Rwezahula on the other hand, readily supported the appeal based on the single ground of appeal raised in the appellant's memorandum of appeal filed on 23.3.2023 in which his main complaint is that the charge against him was not proved beyond reasonable doubt. Referring to section 3 (2) (a) of the Evidence Act, Chapter 6, which

requires criminal cases to be proved at the standard of beyond reasonable doubt, M r. Rwezahula argued that the charge of rape against the appellant did not meet the requisite threshold of proof. He contended that even if the evidence could have established that the victim was raped, it was not proved whether it was the appellant who committed the offence. The learned State Attorney further argument was that the prosecution's witnesses did not establish how and when they knew the appellant. This is because the witnesses, PW1 inclusive, only named the appellant with no explanation on whether they knew him before, or they resided in the same village, and how long they had known him. M r. Rwezahula summed up that the inadequacies obtained in the testimonies of PW1, PW2 and PW3 punched holes in the prosecution's case and left the offence unproven to the hilt against the appellant. He thus conceded to the lone ground of appeal and urged the Court to allow the appeal. Consequent to the State Attorney's concession, the appellant did not have any rejoinder. On our part, having considered the sole appellant's ground of appeal conceded by the learned State Attorney and having scanned through the parties' evidence on the record of appeal before us, we are 6

inclined to uphold the parties' concessions. We hold so based on the weakness of the evidence amassed by the prosecution to prove the ingredients of the offence charged. Specifically, for the charged offence of rape the prosecution was in terms of sections 130 (1) (2) (a) and 131 (1) of the Penal Code duty bound to prove three ingredients, that is: one, penetration to the victim; two the penetration was unconsented; and, three, that the perpetrator is none other than the accused/appellant. We are inclined to the learned State Attorney's concession that the prosecution's evidence was short of explanation on how PW1 and PW2, who mentioned the appellant, knew him. It is common knowledge that, in dealing with the identification of the appellant at the crime scene, courts are warned from relying on evidence of visual identification in convicting an assailant, unless there is assurance that the identification was proper. Evidence of identification is required to be watertight to avoid a case of mistaken identity. In the celebrated case of Waziri Amani v. Republic [1980] TLR 250, it was held that: "Although no hard and fast rules can be laid down as to the manner a trial Judge should determine questions o f disputed identity, it seems 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 circumstances o f the crime being tried. We would, for example, expect to find on record questions as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not. These matters are but a few o f the matters to which the trial Judge should direct his mind before coming to any definite conclusion on the issue o f identity "[ Emphasis added] It is also a law that the evidence on identification may establish whether it was an identification of a stranger or a well-known person, which is recognition. For instance, we observed in Jumapili Msyete v. Republic (Criminal Application 4 of 2017) [2018] TZCA 314, that: '7 /7 visual identification, usually, the victims would have seen the suspects for the first time. In recognition cases, the victims claim that they are familiar with or know the suspects." 8

In view of the above settled law, the evidence in the matter under our consideration does not reflect any. Going by the record of appeal, particularly the evidence we recapitulated above, we agree with M r. Rwezahula that they did not disclose how Paskal was known to them. Apart from the lack of an explanation, the evidence was also inconsistent. For example, PW1 consistently testified that she was raped by a boy. Out of nowhere, she said the boy was Paskali Antoni with no more explanation. PW2 consistently testified to having found somebody on top of PW1 and that is what she related to PW3 and confirmed by her evidence. However, the same PW2 further said that Paskali was well- known to her without giving any further account on how and when did he became known to her. Besides, both PW2 and PW3 who met PW1 immediately after the horrific episode none of them supported PWl's evidence that due to the alleged rape she bled and had treated herself at home by applying petroleum jelly before reporting the incident to the police station on 31.3.2022 and attending a medical checkup on 1.4.2022. Moreover, while PW3 and PW4 particularized the appellant as a person whom they knew was employed to take care of Mama Stella's cattle, both PW1 and PW2 said nothing about that. That was unusual, particularly considering that PW2 had claimed to be familiar with Paskali. 9

With the above outlined inconsistencies, we irresistibly hold that the same undermined the credibility of the evidence of PW1 and PW2 who were the only two eyewitnesses. Under these circumstances, we confidently hold that indeed the identification of the appellant had left a lot to be desired. This is a case where PW1, a prime prosecution's witness, adduced deficient evidence that cannot warrant the invocation of the principles laid in the celebrated case of Seleman Makumba v. Republic [2006] T.L.R. 379, in the offences of this nature. For the sake of completeness, in the matter at issue, we further found that proof of penetration to the victim was also wanting in merit. This is because there was an unexplained reason for the victim's delay in reporting the incident to the police station and visiting the Health Centre. It is strange that, though PW1 said the rape had caused her pain and bleeding yet, that bleeding, as we pointed earlier, was not seen or mentioned by PW3 who met her on her way to home. PW3 only testified on seeing her walking with difficulty. Furthermore, PW5, who examined PW1 on the second day after the incident, did not notice anything from her private parts or on any part of her body. To us, it does not appeal that a person who sustained such an assault, leading to bleeding, would be found normal without any 10

sign of bruises in her body. We thus find that an allegation of penetration also had a lot to be desired. To this end, based on the discussion above, we respectfully agree with both the appellant and M r. Rwezahula, learned State Attorney, that the charge of rape against the appellant was not proved beyond reasonable doubt. We therefore allow the appeal, quash the conviction, and set aside the sentence meted out to the appellant. We consequently order for his immediate release from the prison unless lawfully held for another reason. DATED at ARUSHA this 15th day of October, 2025. The Judgment delivered this 16th day of October, 2025 in the presence of appellant in person, M r. Philbert Msuya, learned State Attorney for the Respondent and M r. Musa Amry, Court Clerk; is hereby certified as a true copy of the original. B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL