Bakari Rashid Issa vs Republic (Criminal Appeal No. 507 of 2023) [2025] TZCA 900 (28 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TANGA fCORAM: LILA. 3.A.. KENTE J.A. AND MGEYEKWA J A ) CRIMINAL APPEAL NO. 507 OF 2023 BAKARI RASHID ISSA ............ . ..................... . ......... . .............APPELLANT VERSUS THE REPUBLIC ............ . ............. . ...... . .................................RESPONDENT (Appeal from the decision of the Resident Magistrates' Court of Tanga with Extended Jurisdiction at Tanga) fRutehanawa. RM-Ext. Jur.) dated the 28th day of June, 2022 in Consolidated ( DC^ Criminal Appeal No. 8 of 2022 JUDGMENT OF THE COURT 20th May & 28th August, 2025 LILA. J.A.: The appellant is dissatisfied with the decision of the Senior Resident Magistrate (with extended Jurisdiction) in DC Criminal Appeal Case No. 8 of 2022 which sustained the conviction for the offence of unnatural offence contrary to section 154(l)(a)(2) of the Penal Code and a life imprisonment sentence imposed by the District Court of Pangani at Pangani in Criminal Case No. 7 of 2021. The evidence, in summary, led by the prosecution side in their verge to prove the charge poses no difficulty to comprehend. The victim,

whose name shall be disguised by referring to him as the victim or PW2, as per the order of testifying, was a boy aged 7 years. On 1s t February 2021 around night hours, he was at his home asleep. He unexpectedly felt pain in his anus. He woke up and saw a person he claimed to be the appellant known by the name Boka, a person he knew well to be their neighbour. He screamed for help resulting into that person fleeing from his room, the crime scene. The cry for help woke up his mother Magdalena Mashaka (PW1). She found the victim outside the house and found him with his pant down to his knees. She inquired him as to what had happened, but got no response as PW2 continued crying. PW1 called Yusuph Mhando (PW3), her neighbour, who quickly turned up. Again, PW2 was not ready to disclose to PW3 what happened to him. PW3 inspected PW2's buttocks and found some kind of fluids he suspected to be semen. Thereafter, the matter was reported to the Village Executive Officer (VEO) one Lameck Yohana Senti (PW6) who called two militia men namely Salim Haji and Yohana Sekwao (PW4 and PW5, respectively) and ordered them to trace and arrest the appellant. The appellant was found at his home together with Abdulfari Abdallah (PW9) and they were arrested and together were taken to the village office. At the office, the victim was asked again who sodomised him, at 2

first, he mentioned Boka (the appellant) but later pointed at PW9. Flabbergasted by the victim's conduct, PW6 wrote a letter to the police station for them to deal with both the appellant and PW9. At the police station, when asked for the third time, the victim, again, named the appellant as the person who sodomised him leading to the release of PW9. A PF3 was issued for the victim to be taken to St. Francis Hospital for medical examination whereat Ally Musa Mkumba (PW11) examined him and found bruises at PW2's anal part leading to his conclusion that he was penetrated by a blunt object. He reduced the findings in the PF3 (exhibit PE3). At the police station, a policeman No. G.106 Onesmo (PW7) recorded the appellant's cautioned statement (exhibit PEI) and he was, later on, taken to the Kimang'a Village Executive Officer one Alphan Rashid Joho (PW8) who recorded the appellant's extra judicial statement (exhibit PE2) confessing committing the crime. That was the prosecution evidence. The appellant was found with a prima facie case hence to answer the charge. In answering to the allegation, the appellant denied involvement. He attributed his prosecution with a concocted story against him a fact 3

clearly demonstrated by the victim's failure, at first before his mother and the neighbour, to name him, and later before the VEO naming two persons before the VEO, and again, changing goal post at the police station by pointing at him alone. Despite his affirmed defence, the trial court convicted and sentenced him to life inprison ment. Aggrieved, he unsuccessfully appealed to the High Court where his appeal was transferred and heard by a Senior Resident Magistrate with extended jurisdiction. Three issues formed the basis of the appellant's contentions namely; evidence on identification was insufficient, victim's age was not proved, prosecution evidence came from relatives and the charge was not proved. The rival side disagreed with the appellant contending that the appellant was properly identified by the victim who not only told the trial court where the appellant stood, named him as being Boka or baba Hassan to PW1 and before the VEO, but also saw and identified him with the aid of light from the solar power. As regards the victim naming PW9 before the VEO, the learned Senior State Attorney argued that, being a child of seven years, the victim was worried of the appellant who was looking at him. As regards the victim's age, the learned Senior State Attorney, relying on the Court's pronouncement in the case of Isaya Renatus vs Republic,

Criminal Appeal No. 542 of 2015 (unreported) that age of the victim may be proved by his parents, victim himself, doctor or by production of a birth certificate, argued that age was proved by his mother (PW1). And, lastly, witnesses who are relatives testifying for the prosecution was no issue to the learned State Attorney as the same is not barred by law and, as the offence was committed at night, the victim had to tell the relatives who were around. Although in the end of his submission before the Senior Resident Magistrate with extended jurisdiction, the learned Senior State Attorney urged the victim be believed and based on his evidence, in terms of the Court's holding in in the case of Selemani Makumba vs Republic, [2006] TLR 384 that best evidence in sexual offences comes from the victim, the conviction be sustained, he in the course of arguments against the appeal, the learned State Attorney prosecuting the appeal, moved the court to expunge the cautioned statement (exhibit PEI), extra-judicial statement (exhibit PE 2) and the medical report, that is the PF3 (exhibit PE3) for being improperly tendered. The learned resident magistrate simply commented that: - "In this appeal the State Attorney Ms. Mwahelsya prayed the extra-judicial , PF3 and cautioned statement to be expunged since were not properly

tendered in the court, though those documents are to be expunged upon not proper tendered (sic), but the truth remains that the appeiiant confessed at VEO and police that he committed the offence o f unnatural offence. The act o f the appellant to confess that he committed the offence did corroborate the evidence of PW2 (victim) that who sodomized him was the appellant, also it proves that who was identified by the victim was the appellant and no one else, Upon the evidence testified by the prosecution witnesses, in my view all the mistaken o f identification (sic) was eliminated..." Nonetheless, in the judgment, the Senior Resident Magistrate with extended jurisdiction did not make any order either expunging or maintaining the said exhibits as part of the prosecution evidence. The court held that the victim named Boka repeatedly to be his ravisher and his later pointing at PW9 was a result of the appellant looking at him furiously. Otherwise, it agreed with the trial court that the victim's age was established by PW1 referring to the case of Salu Sosomo vs Republic, Criminal Appeal No. 31 of 2016 and Isaya Renatus vs Republic (supra). And, relying on the evidence of the victim, medical doctor, PW3 and PW6, the appeal was found to be unmerited.

We shall dispose of this ground outrightly here. Apart from the reasons given by the learned State Attorney as to why the stated documentary evidence should be expunged from the record/ it should be recalled that PW10, in his testimony, said that he witnessed the process of interrogation between the appellant and the police and he also heard the appellant confessing to the commission of the charged offence. The cautioned statement was therefore recorded in the presence of another person. It should be noted right here that it is not permissible for an accused statement to be taken in the presence of another person even in the presence of another police officer save for a person of his choice including his lawyer and, in the event of such violation, the recorded statement becomes inadmissible [See Friday Mbwiga @ Kameta vs Republic, Criminal Appeal No. 714 of 2017 (unreported)]. For this reason, coupled with the reasons stated by the learned Senior State Attorney we, indeed, find no reason why the learned resident magistrate hesitated to expunge the stated documents. As the respective stated documents suffered from such anomalies, the learned Senior State Attorney was right to ask them be expunged from the record of evidence. It being an omission and a non-direction on the part of the senior resident magistrate which occasioned injustice, we hereby expunge them.

In this appeal, the appellant wishes to fault the learned Senior Resident Magistrate's decision upon ten grounds of complaints. Amongst the ten complaints, the appellant has, once again, raised the complaint about insufficient identification of the culprit at the crime scene. He therefore complains that his involvement was not properly grounded. Even in his arguments before us, the complaint formed one of the five basic complaints insisting that the victim's evidence that he saw the culprit from behind makes it impossible to have seen and properly identified the person. He complains, in ground seven (7) of appeal, that: "That, the learned Magistrate and the learned appellate Senior Resident Magistrate (ext Juris) erred in iaw and in fact by acting upon visual identification evidence in unfavourable condition which was not water-tight" Upon our careful examination of the proceedings and judgments of both courts below, we are satisfied that the complaint by the appellant was and is still well taken. We are convinced that had both courts below appropriately considered the complaint, they, most likely, would have not grounded the appellant's conviction on being identified at the crime 8

scene by the victim (PW2) and we find determination of this complaint is decisive of the appeal. Before us on the hearing date, the appellant appeared in person and unrepresented. Mrs. Sylvia Mitanto, learned Senior State Attorney, represented the respondent Republic. Being a layperson, nothing substantial came from the appellant who simply pleaded innocence and faulted the courts below for convicting him on the evidence which was insufficient. He outlined his complaints as they appeared in the memorandum of appeal and urged the Court to set him free. Initially, the learned Senior State Attorney took and was firm that the appellant's conviction was well grounded. She was at one with the learned Senior Resident Magistrate that the appellant was properly identified by PW2 and corroborated by PW1. Light from the solar power and being familiar with the appellant, she argued, assisted the victim in identifying the appellant as his ravisher. She argued that evidence on record show that the appellant was properly identified at the scene particularly by PW2 (the victim) who, at page 12 of the record of appeal, said he properly saw the appellant in his room using the solar light and outside when he was leaving the place.

However, upon being prompted by the Court on whether the threshold factors set out by the Court in the case of Waziri Amani vs Republic [1980JTLR 250 were all established, she did not find it difficult to concede that they were not met and went further to argue that the victim should not be believed as at page 21 of the record of appeal, before the VEO, he named another person which shows that he was unreliable, In the absence of the water-tight identification evidence by the victim, the appellant's conviction cannot stand, she insisted. She, accordingly, conceded that the charge was not proved and the appellant's appeal should be allowed, a view which was earnestly received by the appellant in his rejoinder arguments. It is notable from the judgments of both courts below that the appellant's conviction mostly depended on his being visually identified by the victim (PW2) at night time which is ordinarily taken to be of unfavourable conditions for a proper and unmistaken identification unless the court satisfies itself that there is water-tight evidence eliminating all the possibilities of mistaken identification. In Waziri Amani vs Republic (supra), the Court set out thresholds to be considered so as to assure itself of unmistaken identification before acting on evidence on visual identification which is otherwise the

weakest and unreliable evidence. The factors set are the time the witness had the accused under observation, distance at which observation was made, extent and source of light at the scene and whether the accused was or not a stranger. PW2, the only identifying witness's evidence is therefore very crucial in the determination of the appellant's fate in this appeal. His evidence on how he was carnally known and how he was able to identify the culprit as being the appellant, as recorded at page 12 of the record of appeal is, in part, that: - "On 1/2/2021 in the night, I remember I was at home sleeping. I was sleeping aione. Other days I usually sleep with my unde called Shedrack. When I was sleeping that day Boka entered into my room. Boka is in this court (PW2 pointing at the accused). When Boka entered into my room raped me. Boka took off my short pant. When he raped me I felt pains at my anus. I do not know why I felt pain. I came outside o f the room and I met Boka and saw him going to his house. Outside o f my room I was crying and my mother came. When my mother asked me what did I do I told my mother that I was carnally known at my anus in the room by Boka. I saw Boka that night because there was enough tight o f solar power , 11

While we were outside the house then came unde Yusuph.. /'(Emphasis added) On the evidence, it cannot be disputed that PW2 was carnally known and that the appellant was not new to the victim and these facts were not controverted by the appellant. Evidence by PW2, PW1, PW3, PW4, PW5 and PW10 proves the fact that PW2 was penetrated against the order of nature while that of PW1 proved his age. Equally not doubtful is the fact that there was light from a solar power. But a crucial issue which should be resolved is who penetrated him? This is basically the complaint by the appellant in this appeal about identification evidence. While as stated above we entertain no doubt on the presence of light from solar power and the victim being ravished, the question is who committed the offence hence the need to consider whether, on the evidence on record, the conditions were favourable for a proper and unmistaken identification particularly on the intensity of light. It is plain that intensity of light from the solar power was not explained by both PW2 and PW1 making it difficult to ascertain its sufficiency to see and identify a person. The Court has warned courts below from accepting as enough an allegation or a bare assertion that there is light from a certain source as did PW2 and PW1 (see Juma Hamad vs Republic, 12

Criminal appeal No. 141 of 2014 (unreported). That said, sufficiency of light is questionable. Even assuming that there was enough light, there is another disquieting shortcoming regarding the victim's unreliability of who actually ravished him. It was obvious and the learned Senior State Attorney admitted before us that, at first, the victim before the VEO, named the appellant and PW9 as being his assailants but at the police station he pointed at the appellant. Like the VEO who was disturbed by PW2's uncertainty as regards who exactly ravished him, we equally entertain doubts on his truthfulness. Insisting on the need also to consider the reliability of the identifying witness, in the case of Jaribu Abdallah vs Republic, Criminal Appeal No. 22o of 1994 (unreported), the Court held: - "...In matters o f identification, it is not enough merely to look at the factors favouring accurate identification, equally important is the credibility o f witness. The conditions o f identification might appear idea! but that is no guarantee against untruthful evidence../' (Emphasis added) Both courts below acknowledged the fact that PW2 was not consistent in his own evidence on who was the culprit between the appellant and PW9 but later decided to take his evidence on its face 13

value and convicted the appellant. That was legally wrongly. Failure to be coherent and consistent in his own testimony, dented his (PW2) credibility (see Sokoine Range @ Chacha and Another vs Republic, Criminal Appeal No. 198 of 2010 (unreported). There was an observation by the resident magistrate with extended jurisdiction that the act of the victim naming the appellant and PW9 at the VEO (PW6) was attributed by the appellant looking at the victim angrily he being a child is purely a speculation as itfindsno support from the record. Neither the victim nor any other witness who was at PW6's office told the trial court so. In addition, PW9 who was also named by the victim gave testimony tending to implicate the appellant stating that he slept with the appellant on the fateful day but sometime at night he got out and returned after a short while. No doubt, by being named by PW2 as being a ravisher and being arrested and taken to the police station in connection of such accusation, he was a suspect hence all he said was intended to save his skin hence a witness with personal interest to save. His evidence required a cautious treatment. Despite thevictim's testimony, which was not disputed, that the appellant and the victim are familiar to each other which factboththe 14

prosecution and the courts below appear to have taken as guaranteeing unmistaken identity, actually recognition, which is treated as being more reliable, yet the Court has consistently warned that chances of mistaken recognition is not thereby eliminated and being familiar is no guarantee of untruthful witness. In Shamir John vs Republic, Criminal appeal No. 166 of 2004 (unreported), stated that: - "...recognition may be more reiiable than identification o f a stranger, but even when the witness is purporting to recognize someone whom he knows, the court should always be aware that mistakes in recognition o f dose relatives and friends are sometimes made." The two shortcomings articulated above on the conditions under which the victim allegedly identified the appellant, we are settled in our minds that the identification evidence of PW2 is highly suspicious and unreliable. This finding coupled with the absence of exhibits PEI, PE2 and PE3 which have been expunged, result in the prosecution case crumbling so much so that there remains no evidence on which the appellant's conviction would be grounded. Had both courts below addressed themselves on these shortcomings, definitely the appellant would have walked out of the court freely. The learned Senior State Attorney was therefore justified to support the appellant's appeal.

In the circumstances, we allow the appeal. The conviction is quashed and the sentence imposed by the trial court and sustained on appeal is set aside. The appellant be set free immediately if not held for another lawful cause. DATED at DODOMA this 25th day of August, 2025. S. A. LILA JUSTICE OF APPEAL P . M. KENTE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 28th day of August, 2025 in the presence of the appellant in person and Ms. Jesca Thomas, learned State Attorney for the respondent Republic via virtual Court; is hereby certified as a true copy of the original. 16