Yoseph Timoteus Mapunda vs Republic (Criminal Appeal No. 298 of 2023) [2025] TZCA 1112 (15 October 2025)

AT SONGEA (CORAM: MKUYE, J.A., MASOUD. J.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 298 OF 2023 YOSEPH TIMOTEUS MAPUNDA ........................................... APPELLANT VERSUS THE REPUBLIC .... ..... .................................... ...... ........ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Luvanda, 3.^ dated the 14th day of March, 2023 in DC. Criminal Appeal No. 53 of 2022 JUDGMENT OF THE COURT 10th & 15th October, 2025 MKUYE, 3.A.: The appellant, Yoseph Timoteus Mapunda, was charged and convicted before the District Court of Mbinga at Mbinga of an offence of rape contrary to section 130 (1) and (2) (a) and 131 (1) of the Penal Code [Cap 16 R.E. 2022 ]. It was alleged in the particulars of offence that, on 10th July 2022, at Mpapa village within Mbinga District in Ruvuma Region, the appellant did have carnal knowledge of E.M (to be referred to as the "victim" or "PW3"), an old woman aged 89 years, without her consent.

Upon his arraignment before the court, he entered a plea of not guilty to the charge. The prosecution presented five witnesses and produced one exhibit. For defence, the appellant was a lone witness. The brief facts leading to this appeal, as can be discerned from the record of appeal are as follows: On 10th July 2022 night, the victim was at home. At around midnight, a certain person, allegedly the appellant, broke into her bedroom. He tightened her hands, undressed her and forcibly had sexual intercourse with her despite her resistance. Her efforts to scream for help did not bear fruits as no body including her husband who was sleeping in another house responded. The appellant left after the assault. PW1 reported the matter to her husband who relayed information to the local leader, Edmund Mapunda (PW4). The appellant was arrested and was taken to Farida Winfrida Komba, the Village Executive Officer (VEO) (PW3). It is alleged that the appellant confessed before PW3 and apologized to what happened. Meanwhile, Edwina Martin Mapunda, the victim's daughter (PW2), was called through her mobile phone by her brother. She went to the scene and found the bed broken while the victim lying on it complaining of pains on every part of her body. PW4 who also responded to the crime scene

witnessed the recovery of a pair of sandals from the victim's bedroom, allegedly, belonging to the appellant. Thereafter, the appellant and the victim were taken to Mbinga Police Station and later the victim was taken to Mbuyula Hospital for medical examination. She was attended by a medical officer Venant Kapinga (PW5) and observed bruises in the victim's vagina consistent with penetration. He filled the PF3 which was admitted as exhibit P2. In defence, the appellant distanced himself from involvement in the commission of the offence. He denied to have been present at the scene of crime. He also claimed that, the alleged confession to the VEO was extracted under threats and beatings. After a full trial, the trial court was satisfied that, the prosecution proved the case beyond reasonable doubt. It was convinced that, the evidence of the victim which was corroborated by the evidence of a medical officer and the findings in the PF3 (Exh. P2) proved that the victim was raped. Also, the trial court believed that the appellant was properly identified by the victim to be the one who raped her. It thus, convicted the appellant and sentenced him to thirty (30) years imprisonment. Dissatisfied with that decision, the appellant appealed to the High Court but his appeal was dismissed for being not merited. It held that PWl's

evidence was credible, penetration was proved by exhibit P2, the sandals corroborated the appellant's presence at the scene and that the oral confession was voluntary because he did not cross examine the relevant witnesses on the issue of coercion. Still protesting his innocence, the appellant has now lodged this appeal to this Court. On 17th July 2023, the appellant presented a memorandum of appeal consisting of three grounds of appeal which can be paraphrased as follows:

1. That the trial and High Court erred in iaw and fact by convicting and affirming the appellant's conviction based on questionable identification evidence provided by the victim (PW1).

2. The trial court and the High Court erred in law and fact by upholding the appellant's conviction based on PW4's testimony that the appellant's sandals were found in the victim's room.

3. The trial and the High Court erred in law and fact by relying on an alleged oral confession made by the appellant at the Village Executive Officer's office, which was not voluntarily given. Yet, on the hearing date the appellant sought and leave was granted to present a supplementary memorandum of appeal on two grounds of appeal as paraphrased hereunder:

4. The first appellate court erred in law in fact in upholding the trial court's decision while the prosecution failed to give the appellant the victim's statement she gave at the police station.

5. The first appellate court erred in law and fact in upholding the trial court's decision while the preliminary hearing was un-procedurally conducted. When the appeal was called on for hearing, the appellant appeared in person unrepresented whereas the respondent Republic had the services of Ms. Mwajabu Tengeneza, learned Principal State Attorney teaming up with Mr. Frank Chonja and Ms. Agness Simba, both learned State Attorneys. On being invited to elaborate his grounds of appeal, the appellant prayed to adopt them. He, then, opted to let the learned State Attorneys respond first while reserving his right to rejoin later, if need would arise. It was Ms. Tengeneza who took the floor. She prefaced by declaring their stance that they do not support the appeal. Responding on ground No. 1 of the substantive memorandum of appeal relating to the identification of the appellant, she argued that, the appellant was properly identified. In elaboration, she recited the evidence of PW1 who explained on how on 10th July 2022 she was asleep when the door to her bedroom was broken. That, she saw a youth through electricity light whom she identified as Joseph

Mapunda. She added that, the appellant was known to PW1 as her nearest neighbor adding that this was corroborated by PW2's evidence who said the appellant was related to them being a grandchild of her elder paternal uncle. The learned Principal State Attorney urged the Court to find that the appellant was properly identified based on the decision in Jumapili Msyete v. Republic, [2015] TZCA 234 TANZLII, that he was identified by recognition. Ms. Tengeneza argued further that after the incident, the victim informed her husband who also reported to the village authority leading to the appellant's arrest. According to her, the ability to name the suspect at the earliest opportunity was an assurance of reliability of the witness. To fortify her argument, she cited to us the case of Marwa Wangiti Mwita and Another v. Republic, [2003] TLR 39. In relation to grounds Nos. 2 and 3 of the substantive memorandum of appeal in which the appellant's complaints are on reliance on the evidence relating to the recovery of the appellant's sandals at the scene of crime and confession made to the VEO (PW3), Ms. Tengeneza contended that, the trial court did not rely on such evidence to mount a conviction against the appellant but relied on evidence of PW1 and PW5 in establishing rape.

With regard to ground No.l of the supplementary memorandum of appeal that, the appellant was not availed with the complaint's statement as per section 11 (10) of the CPA, it was Ms. Tengeneza's argument that failure to do so did not vitiate the prosecution evidence since the witness (complainant) testified in court and the appellant had a chance to cross examine her. Apart from that, she argued, there was no prejudice for failure to give him the said statement. In relation to the 2n d ground in the supplementary memorandum that the preliminary hearing was not properly conducted as per section 198 of the CPA, Ms. Tengeneza contended that although the purpose of preliminary hearing is to speed up the matter by determining matters not in dispute, failure to conduct it or improper preliminary hearing is not fatal to the proceedings. She referred us to the case of Ibrahim Eston v. Republic, [2024] TZCA 516, TANZLII. Ms. Tengeneza was firm that the prosecution proved the case beyond reasonable doubt as per section 130 (1) (2) (a) of the Penal Code as PW1 proved that she was raped without consent. That, the assailant invaded her and there was a struggle between them until when the victim was overpowered and raped by the appellant who was properly identified by the victim. She added that, PW1 was a credible and reliable witness as per

section 135 (6) of the Evidence Act Cap 6 R.E. 2023. She concluded by beseeching the Court to find that the case against the appellant was proved beyond reasonable doubt and dismiss the appeal in its entirety. In rejoinder, the appellant assailed the light alleged to have enabled proper identification. He prayed to the Court to allow the appeal and set him free. Having considered the record of appeal, the grounds of appeal and the rival submissions from the parties, we find that determination of this matter revolves around the issue of identification which is capable of disposing the whole matter without necessarily discussing the other grounds of appeal. The issue, therefore, for our determination is whether the appellant was properly identified. It is trite law that, the evidence of visual identification is of the weakest kind, and no court should base a conviction on such evidence unless it is absolutely watertight; and that every possibility of a mistaken identity has been eliminated. In order to determine whether there was a proper identification several factors are to be looked at. Such factors include. How long did the witness have the accused under observation? At what distance? What was the source and intensity of light, if it was at night? Was the observation impeded in any way? Had the witness ever seen the accused

before? How often? If only occasionally had he any special reason for remembering the accused? What interval has lapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witnesses, when first seen by them and his actual appearance? Did the witness name or describe the accused to the next person he saw? Did the/those other persons give evidence to confirm it. (See: Waziri Amani v. Republic, (1980) TLR 250, Raymond Francis v. Republic, (1994) TLR 1000; Augustino Mihayo v. Republic (1983) TLR 117; Marwa Wangiti and Another v. Republic, [2000] TZCA 4 and Shamir John v. Republic, [2007] TZCA 262, (both TANZLII). The Court also provided a guidance that, even where witnesses claim that they recognized the accused, there are mistakes which sometimes may be made although by any degree, evidence of recognition may be more reliable than identification of a stranger. (See: Issa Mgara @ Shuka v. Republic, [2008] TZCA 112; Magwisha Mzee and Another v. Republic, [2010] TZCA 240 (both TANZLII); and Shamir John (supra). In this case, it is common ground that the offence was committed at night, PW1 testified that it happened at midnight. Even when she was under cross-examination, she confirmed that the event occurred in the midnight.

In order to appreciate what she testified on this aspect, we reproduce a portion of her evidence as hereunder: "I am sleeping at "mabanda" On 10/7/2022 in the night I siept in the same room I use to sleep and while asleep a young man broke my door and stood near my bed it was almost midnight The said young man was Joseph Mapunda. (the accused herein) and I managed to see him from the electrical light and he then touched me and removed my clothes meaning that he undressed me and he then took..." I shouted but no one came so I started fighting him but he succeeded to make love to me. At the moment the accused tightened my hands to loose my resistance and until now my hands are painful." While, we do not have qualms that rape was established by PW1 and PW5, the doctor who examined the victim and observed bruises in her genitalia suggesting that there was penetration of a blunt object, we think, the evidence which could link the appellant with the offence is suspicious. There is no dispute that the evidence linking appellant is that of PW1 who said she identified him. The circumstances of identification are those which are in the excerpt reproduced above which, in our considered view, were not favourable. Much as PW1 said that she was able to identify the appellant due to electric light, she did not however state the nature of the bulb it came

from and its intensity was not explained. She did neither explain the place where such light was placed whether in the same room she was sleeping, or somewhere else. The distance from where it illuminated to the place she was not explained. Also, it was not stated whether or not she was the one who left the light on, considering the incident took place at midnight she was asleep. Besides that, PW1 who was the sole identifying witness, did not provide any description of the appellant such as his physique, appearance, height, colour or attire he had put on/wearing. (See: Amani Katekela and Another v. Republic, [2009] TZCA 141, TANZLII. Description of the appellant was of high importance in showing how the witness identified him. In the absence of such description, particularly to the person to whom the witness first met, it would be unsafe to rely on such identification evidence. We are aware that PW2 explained that the appellant was related to PW1, he being a grandson of PW2's elder paternal uncle suggesting that he was known to PW1 before the incident and hence, the identification could be by recognition. However, much as PW2's evidence may not add any value to the identification of the appellant, identification by recognition has its parameters. In the case of Jumapili Msyete (supra), it was stated that identification by recognition is more reliable than that by strangers or by

voice. However, in the same case the Court acknowledged that, even in such recognition cases mistaken identification may be made, (see also: Issa Mgara @ Shuka (supra) and Daniel Amos Mziho v. The DPP, [2023] TZCA 17973; and Hekima Madawa Mbunda and Another v. Republic, [2022] TZCA 138 (both TANZLII). In this case, we do not agree with the learned Principal State Attorney that, the appellant being familiar to PW1, she could have identified him by recognition because that evidence did not come from PW1 herself but from PW2 who was not present at the scene of crime. But again, even if PW1 had been familiar to him, since the conditions were not favorable given the circumstances which prevailed at the time of incident, the possibilities of mistaken identification could not be ruled out. There was no assurance of correct identification. The other crucial aspect in identification which needs to be considered is the ability of the witness to name the suspect at the earliest opportunities. In times without number, this Court has pronounced itself that the ability of a witness to name the suspect at the earliest opportunity is an all-important assurance of his reliability and in the same way an unexplained delay or complete failure to do so has to put a prudent court to inquiry - See: Marwa Wangiti Mwita and Another v. Republic, [2000] TZCA 4; Felick

Kilipasi v. Republic, [2023] TZCA 17941; Abel Oma @ Matiku & Others v. Republic [2024] TZCA 78 and Hamis Halfan Dauda v. Republic [2020] TZCA 182 (all TANZLII). In this case, we doubt if PW1 mentioned the appellant as her assailant in the incident of rape at the earliest possible time. In her testimony, she indicated to have reported the matter to her husband and instructed him to report it to the cell leader which he did. She testified further that the appellant was arrested and taken to the VEO's office where he confessed to the commission of the offence. However, looking at PW l's evidence closely, it does not show if she named the appellant to the said husband alleged to be deaf and visually impaired. Neither is it shown if she named him at the police where they were advised to go as there was no police officer who came to testify in this case. Had she mentioned the appellant at the earliest opportune time, it would have made an assurance of her reliability in her evidence as was stated in the above cited case. As she failed to do so, her evidence linking the appellant remains suspect and it shakes her credibility. But again, according to PWl's testimony, the young man entered her bedroom while she was asleep. That man touched her and undressed her in view of raping her. She said, she fought with him but she was overpowered and was raped. We think, in view of the available evidence, the

circumstances of identification of the appellant were not favorable at all. The situation was so tense to enable a proper identification. In the case of Raymond Francis (supra), it was emphasized that in criminal cases where determination depends mostly on identification, the evidence on conditions favoring identification is of utmost importance. We are of the view that such conditions were not shown in this case. There was also the issue that an identification parade ought to have been conducted, but we think, as the conditions favouring a proper identification were not available, conducting an identification parade could not have served any useful purpose. To wrap up, in the case of Ngwali v. Republic, [2009] TZCA 12 TANZLII, the Court while citing the case of Abdullah Bin Wendo v. Republic (1953) 20 EACA 166, observed that there is always a need for testing with greatest care the evidence of a single witness in respect of identification. This is so because the evidence of visual identification is easily susceptible to error - See also: Waziri Amani (supra). Having tested the available evidence against the conditions for identification, we find that the prosecution failed to prove that the appellant was properly identified.

Before penning off, we wish to consider one aspect in passing which we find it to be of importance in this matter. As was hinted earlier on, PW1 testified to have reported the matter to her husband, one Martin Mapunda. According to her evidence, she instructed him to report the matter to the cell leader. However, the said Martin Mapunda was not called to testify in Court. When probed why he was not summoned to testify in court, Ms. Tengeneza informed us that it was because of his deafness and visual impairment. However, we do not agree with this argument because it just came from the bar and it is not reflected in the record of appeal. In our view, this was a material witness because he appears to be the first one to be notified about the incident by the victim. That, he is deaf and visually impaired could not impede him to adduce evidence as they have their way of communication. If we may ask, how did PW1 communicate with him and instruct him to report the matter to the village authority? Failure to call him entitles us to draw adverse inference that had he been called, he could have testified against the prosecution. See: Baya Lusama v. Republic, [2021] TZCA 16, TANZLII. In this regard, it is our take that failure to call PWl's husband intensifies doubts in the case.

In view of the foregoing, we find that the prosecution failed to prove the case against the appellant beyond reasonable doubt. We accordingly allow the appeal. In the event, we find the appeal is meritorious. We consequently, quash the conviction, set aside the sentence meted out against the appellant and order that he be set free unless he is held for other lawful reason. It is so ordered. DATED at SONGEA this 13th day of October, 2025. Judgment delivered this 15th day of September, 2025 in the presence of the Appellant in person, Mr. Kauli George Makasi, learned Senior State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL hereby certified as a true copy of the original.