Ismail Juma @ Sumaku vs Republic (Criminal Appeal No. 626 of 2022) [2024] TZCA 1289 (16 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA f CO RAM: LILA. J.A.. MURUKE J.A. And MDEMU. J.A.l CRIMINAL APPEAL NO. 626 OF 2022 ISMAIL JUMA @ SUMAKU ............ ..................................... — APPELLANT VERSUS THE REPUBLIC............................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) ( Kaaomba, 3.1 dated the 24th day of August, 2022 in Criminal Appeal No. 53 of 2021 JUDGMENT OF THE COURT 6th & 16th December, 2024 MURUKE. 3.A.: The appellant, Ismail Juma @ Sumaku was convicted and sentenced to serve twenty (20) years imprisonment by the District Court of Dodoma at Dodoma, after being found guilty of two counts of attempted unnatural offence contrary to section 155 of the Penal Code. The allegation which led to conviction of the appellant was to the effect that, on 9th November, 2019 at Chang'ombe area, within Dodoma District and Region, with intent to procure prohibited sexual intercourse, he attempted to have Carnal

Knowledge of two boys both of the age of 9 years, whom we shall be referring them as PW3 and PW4 or victims, against the order of nature. To prove their case, the prosecution paraded seven witnesses and two exhibits, that is, the accused caution statement and birth certificates of the victims. Prosecution evidence in brief is to the effect that, on the fateful date, he saw two children passing along and entered in an unfinished house nearby. He became curious and followed them. He could not however see the children but heard a male adult voice talking. Upon asking who was inside, the appellant replied saying that he was having a call of nature. PW1 then, saw the appellant coming out. Upon asking him who was still inside, the appellant replied that he was alone. However, PW1 peeped and saw two children putting on their clothes. He sensed something unpleasant happened. As he was observing the boys, the appellant, ran away. PW1 then chased him and raised an alarm to get support but in vain. He returned to the crime scene, only to find the two boys had vanished. Trying to trace them, he met with PW3 who took PW1 to their home, where they met PW2. Upon interrogation, PW3 narrated the story on how they met with the appellant and went on to the unfinished house until the appearance of PW1 who rescued them. It was the victims' testimony that, the appellant ordered them to undress then,

PW3 lay down while PW4 held the wall. They saw the appellant undressing, loosening his belt, that is when PW1 emerged. The incident was reported to the Police Station, thus the appellant was arrested on the next day by the assistance of PW2. On his part, the appellant, in his defence, exonerated himself from the allegations. The trial court having heard the evidence from both sides, firmly found that, the case against the appellant was proved beyond reasonable doubt. He was thus convicted and sentenced to twenty (20) years' imprisonment. He unfruitfully appealed to the High Court thus, filed the present appeal on the following grounds:

1. That, the trial court and the first appellate court erred in law and facts when convicted and sentenced the appellant while the prosecution side did not prove their case beyond reasonable doubt

2. That, the trial court and the first appellate court erred in law and facts when he convicted the appellant without considering that, there was no evidence o fproper identity in respect o f the appellant.

3. That, the trial court and the first appellate court erred in law and facts when relied on the evidence o f hearsay tendered in court by the prosecution side.

4. That, the trial court and the first appellate court erred in law and facts when admitted exhibit PE3 basing on procedural irregularities. 5 : That, the trial court and the first appellate court erred in law and facts when convicted the appellant basing on the weakness o f the defense but not on the strength o f the prosecution evidence. Before us, the appellant appeared in person, not represented. He requested the Court to receive and adopt his grounds of appeal as his submission in support of his appeal. The respondent Republic was represented by Ms. Rachel Baliiemwa, learned Senior State Attorney assisted by Ms. Rose Ishabakaki, learned State Attorney. It was Ms. Rose Ishabakaki who replied to the appellant's ground of appeal and strongly supported the appeal arguing the appeal on the following series; grounds 2, 4, 3 and concluded with 1 and 5. In ground two, the learned State Attorney submitted that, both the trial and the first appellate courts based on the evidence of visual identification in the conviction of the appellant which she thought was not watertight. Although PW1 testified that, he knew the appellant by face but he did not describe the physical appearance of the appellant when he met with the victim's parents and the police. PW1 identified the appellant

at the dock. However, there was no prior description of the appellant made by PW1 earlier. According to the evidence of PW1, PW3 and PW4, the incident took place during day light. However, both PW3 and PW4 did not describe the appellant immediately at PW2 or to their parents and police, insisted the learned State Attorney: Having heard from learned State Attorney in reply to ground two of the appeal, it is worth noting that, it is settled law that the identification of an accused person by a witness in the dock for the first time cannot be given weight without other evidence to corroborate. It is on record that, PW3 and PW4 who were the victims, spent enough time with the appellant at the football ground when they met and promised to teach them Kungfu; then, taken by the appellant in his bicycle to the unfinished house. The two victims had ample time to interact with the appellant, but yet, they did not give any prior description of the appellant to PW2, parents, and or at police. It is established principle that, it is not enough to look at the factors following accurate identification, equally important is the credibility of the identifying witness and the ability to name the offender at the earliest

possible opportunity. This position of the law was discussed by the Court in the case of Jaribu Abdallah v. Republic [2003] T.L.R. 271. The ability of an eye witness to name or give a description of his or her strange attacker(s) to the police or to any other person after the occurrence of the incident is crucial in establishing the credibility of the witness. In the instant appeal, neither PW1, nor the two victims (PW3 and PW4) gave any description of the appellant immediately to PW2, the victim's parents or to the police when they reported the incident. Thus, their identification evidence at the dock cannot be given any weight. We are in total agreement with the appellant and the learned State Attorney's argument in ground two that, failure by three eye witness to give prior description of the appellant, their dock identification evidence is weightless. Thus, we proceed to allow ground two of the appeal. In ground 4 of appeal, the complaint is on failure by trial court to read caution statement, exhibit P3, after being received as evidence. On this, the learned State Attorney admitted the anomaly and submitted that, the record reveals that exhibit P3, caution statement, was tendered by PW7 as seen at page 43,44 and 45 of the records. It contravened section 50 of the Criminal Procedure Act and the remedy available is to expunge the same, insisted the learned State Attorney.

We have gone through the records. It is true that, PW2 said the appellant was arrested on 10/11/2019. Equally so, the appellant testified at pages 50-51 of the record that, he was arrested on 10/11/2019, and his cautioned statement was recorded on 11/11/2019. That piece of evidence has not been contradicted by any of the prosecution witnesses. More so, PW2 supported what the appellant said on the date of arrest. Clearly, exhibit P3 was taken out of the prescribed time provided by section 50 and 51 of the Criminal Procedure Act. PW7 who recorded the appellant's statement, did not give any reason as to why the statement was taken outside the 4 hours prescribed by section 50 of the Criminal Procedure Act. Equally so, there is no extension of time sought as provided for by section 51 of Criminal Procedure Act. We entirely agree with the appellant and the leaned State Attorney Ms. Ishebakaki that, exhibit P3 was improperly admitted and wrongly relied upon by the trial court to ground conviction because it was recorded outside the time prescribed by section 50 (1) of the CPA. That section provides that: "50-(l) For the purpose o f this Act, the period available for interviewing a person who is in restraint in respect o f an offence is:-

(a) subject to paragraph (b), the basic period a vaiiabie for interviewing the person ; that is to say the period o f four hours commencing at the time when he was taken under restraint in respect o f the offence. ''"[Emphasis added]. In the case of Mohamed Juma @ Mpakama v. Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 February 2019, TanzLII), the Court emphasized that: " The statutory periods available for the police to interview persons suspected to have committed offences are cioseiy regulated by the law under sections 50(1) and 51(1) o f the CPA. Section 50 (1) (a) o f the CPA has prescribed the initialperiod o ffour hours forpoiice interview, counted from the time when the accused person is placed under restraint in respect o f the offence. In case an extension o f time for interview is desirable, conditions for extension are prescribed under section 51 o f the CPA." The effect of non-compliance with section 50 of the CPA is to render such evidence inadmissible and incapable of being relied upon in evidence. Thus, we hold that the cautioned statement of the appellant was wrongly admitted and acted upon by trial court and confirmed by the first appellate court.

Not only exhibit P3 was taken out of time but also in contravention of section 58 (6) of the CPA. It reads as follows: "Where a police officer is satisfied that there is no further additional statement, alteration or correction to the statement, he shall cause to be written at the end o f the statement form o f certificate in accordance with prescribed form and shall" (a) ask the person to sign the certificate set out at the end o f the statement or if the statement extends to more than one page, sign each page o f the statement; and (b) certify under his hand at the end o f the statement, what he has done in pursuance o f this subsection. Looking at exhibit P3, there is no certification by PW7 who wrote the appellant's statement. Certification is a mandatory requirement as it goes to the authenticity of what it has been recorded. Failure to certify is a serious lapse on the prosecution case. In essence, although exhibit P3 was received without objection from the appellant at the trial court, the same was improperly received and acted upon to ground conviction. In the light of the above, the cautioned statement, exhibit P3 is liable to be disregarded because not only it contravened section 50 of the

CPA but also section 58 (4) of the CPA. In short, ground 4 has merits, accordingly, allowed. The third ground of complaint is that, the trial court grounded conviction on hearsay evidence. On this, the learned State Attorney submitted, rightly in our view that, PW1, PW3 and PW4 evidence is not hearsay evidence. PW3 and PW4 being victims, were with the appellant when he tried to commit the offence before PW1 interrupted. The three witnesses were therefore eye witness. What matters is their credibility of their evidence. Weakness found in their evidence cannot be said hearsay. This ground lacks merits, it is thus dismissed. Ground one and five are both on insufficient of the prosecution evidence to prove their case. According to the records, it is PW1 who revealed the incidence of the two victims PW3 and PW4 in the attempt to be carnally known by the appellant against the order of nature. We have discredited the evidence of dock identification by PW1, PW3 and PW4 for failure to give prior description of the appellant as they were in contact with the appellant and it was during the day time. We have also disregarded the evidence of the appellant's cautioned statement, exhibit P3 as it was taken contrary to section 50 and 58 (6) of the CPA. We have

now remained with evidence of PW2 who mentioned the appellant to be Sumaku, that prompted the arrest of the appellant. PW2 testified that, he was at home when asked by PW1 whether he was the eldest person at the moment. PW2 testified that PW1 came with his young brother PW3 and narrated to him the incident of attempted unnatural offence. PW2 asked the victim and explained to him that the appellant took him and PW4 from playground. He traced the said playground, only to be informed by other kids that they were playing with PW3, that it is Sumaku who took the two victim's and that he is the person of bad character. TTien PW2 reported the incidence to police. Sumaku who happened to be the appellant was then arrested. It is not clear why the said kids, at the playground, who mentioned Sumaku to PW2, none of them testified. Those who mentioned the appellant to have been with the victims were material witnesses to the prosecutions. It is acknowledged that the law requires the prosecution to call materia! witness(s) to prove the case against an accused person, failure of which, entitles the court to draw an adverse inference to the prosecution. In the case of Azizi Abdallah v. Republic [1991] T.L.R. 71, it was stated that:

"The general and well-known rule Is that the prosecutor is underaprima facie duty to call those witnesses who , from their connection with the transaction in question, are able to testify on material facts. I f such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an adverse inference to the prosecution." In the present case, Ms. Ishabakaki emphasized that, failure to call the kids that mentioned the appellant to have left with PW3 and PW4, is a serious anomaly. We are aware of the law that, under section 143 of the Evidence Act, there is no particular number of witnesses required to prove a fact. However, we wish to state that, whether or not to call a certain person as a witness, depends on the circumstances of each case and the relevance of the evidence of such witness to a case. Therefore, in our considered view, section 143 of the Evidence Act was not intended and cannot be applied as a readymade answer to every question regarding failure to call a witness(s). In the case of Baya Lusana v. Republic (Criminal Appeal No. 593 of 2017) [2021] TZCA 16 (15 February 2021, TanzLII) when the Court was confronted with almost an akin situation, it stated as follows:

"Furthermore, it really taxed our mind as to why the investigator was not called to testify on such a serious offence which posed a threat to the life o f PW l. It is the investigator who would have shed light as to whatprecipitated the appellant's arrest because while the appellant was charged with attempted murder the evidence on record shows that he was arrested for stealing cattle but on interrogation he confessed to have assaulted PW l Failure to call material witness entities this Court to draw an inference adverse to the prosecution". Being guided by the position above and as we have already found that that the kids at the playground who told PW2 that PW3 and PW4 were taken by the appellant, were material witness in the present case because in the circumstances of this case, they were witnesses who were in a better position to explain some missing links in the prosecution case, how PW2 got the name of the appellant. The learned State Attorney also submitted on the contradictions of the evidence of PWl and PW4 as whether the victims were told to lay down or to hold the wall. To resolve the complaint in this ground, we deem it necessary to restate the principle of the law that, every witness who is competent in terms of the provisions of section 127 (1) of the Evidence

Act, is entitled to be believed as a credible and reliable witness. Thus, he must be believed, his evidence accepted, unless there are good and cogent reasons for not believing a witness. This position was also emphasized by the Court in Goodluck Kyando v. Republic [2006] T. L. R, 363. It is also worth noting that, there are no rules of thumb in determining the credibility, truthfulness or reliability of a witness, however, the trial court's findings as to the credibility of witnesses is usually binding on an appeal court unless there are circumstances on the record of proceedings which call for reassessment of their credibility. Hie above notwithstanding, the monopoly of the trial court in assessing the credibility of the witness, is limited to the extent of the demeanour only. But, there are other ways in which the credibility of a witness can also be assessed; one, by assessing the coherence of the testimony of the witness, and two, when the testimony of the witness is considered in relation to the evidence of other witnesses. While we are in agreement with the learned Senior State Attorney that there exist contradictions between the prosecution witnesses, they are serious and go to the root of the case by affecting the credibility and reliability of the prosecution witnesses. We hold this view because:

One, PW1 said that the victims were told to hold the wall inside unfinished house (pagale) while PW4 one of the victim said PW3 was told to lie down by the appellant. The Court in Mohamed Said Matula v, Republic [1995] T.L.R. 3, stated that: " Where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resoive them where possible; eise the court has to decide whether the inconsistencies and contradictions are oniy minor, or whether they go to the root o f the matter!' See also, Dickson Elia Nsamba Shapwata & Another v. Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008, TanzLII), Toyidoto s/o Kosima v. Republic (Criminal Appeal No. 525 of 2021) [2023] TZCA 17305 (5 June 2023, TanzUI), and Frank Maganga v. Republic (Criminal Appeal 93 of 2018) [2021] TZCA 105 (13 April 2021, TanzLII). Having regard to the contradictions between PW1, and PW3 as to what the appellant instructed before he undressed and failure to call some material witnesses raise doubts on the prosecution case. Consequently, we find that the prosecution failed to discharge it's burden of proving the

cou/?> case beyond reasonable doubt. We accordingly allow the first and fifth ground of appeal. In the end result, we find this appeal has merit. Consequently, we quash the conviction and set aside the sentence imposed on the appellant. Finally, we order that the appellant be set free unless he is being held for other lawful cause, DATED at DODOMA this 14th day of December, 2024. The Judgment delivered this 16th day of December, 2024 in the presence of the appellant in person and Mr. Daniel Lyatuu, learned State Attorney for the respondent/Republic via virtual court, is hereby certified S. A. LILA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL G. 3. MDEMU JUSTICE OF APPEAL