Fedy s.o Pamphir vs Republic (Criminal Appeal No. 34 of 2022) [2024] TZCA 1263 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: SEHEL. J.A.. KIHWELO. J.A. And MLACHA. J.A.1 CRIMINAL APPEAL NO. 34 OF 2022 FREDYs/o PAMPHIR,........ ........ ..... ..... ...... ....... .... APPELLANT VERSUS THE REPUBLIC ........ ................. ................. .............. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) f Mwenempazi. J.^ dated the 1st day of November, 2021 in DC. Criminal Appeal No. 28 of 2021 JUDGMENT OF THE COURT 6ltl & 10^ December, 2024 SEHEL J.A.: The appellant, Fredy s/o Pamphir, was charged before the District Court of Moshi at Moshi (the trial court) with two counts. The first count concerned the offence of attempted rape contrary to section 132 (1) (2) (a) and (3) of the Penal Code. It was alleged that, on 23r d May, 2019 at Mandaka-Kilema Area within Moshi District in Kilimanjaro Region, the appellant with intent to procure prohibited sexual intercourse with a girl of 16 years, did manifest his intention by threatening her for sexual purpose. i

The second count was on the offence of assault causing actual bodily harm contrary to section 241 of the Penal Code. It was alleged that in the same date, month, year and place, the appellant did assault the said girl by cutting her on the right palm of her hand and caused her to suffer actual bodily harm. For the purpose of this judgment, we shall refer to the girl as "the victim" or "PW1" to disguise her identity. At the end of the full trial, the appellant was convicted and sentenced to thirty years imprisonment for the first count and one year imprisonment for the second count. The sentences were to run concurrently. His appeal to the High Court of Tanzania at Moshi (the first appellate court) was dismissed, hence, this second appeal. A brief account of the evidence which led to the conviction of the appellant is as follows: on 23rd May,2019, after school hours, during the evening, PW1 together with her two friends, Irene Edmund Mbuya and Glory were on their way home by foot. At that time, heavy clouds built up but they did not think that the rain would have soon dropped down. Given the condition of the weather, her friends suggested to use a shortcut which they did. While on the way, drops of rain started to fall down. PWl's friends ran leaving her behind. She could not run because she was physically challenged. Few minutes later, PW1 met with the 2

appellant who was heading to the same way she was heading. He passed her but after few steps, he returned. He grabbed PW l on her neck, put a knife on her and asked her whether she would willingly give him or not. PW l thought the appellant was asking for money. She thus reached out to her pockets, took out TZS. 200.00 and gave it to him. The appellant forcefully pushed her and dropped the TZS.200.00. He then dragged her to the farm. PWl tried to raise an alarm but the appellant threatened to kill her with a knife. In the process of trying to rescue herself, the appellant cut her on her right palm and started to undress her and himself. When he was undressing, he put the knife down. PW l quickly picked it up, pointed it towards the appellant and threatened him that if he goes near her, she would kill him and herself. The appellant got scared. He took a step back. PWl took to her heels straight to the house of Esther Richard Mkonyi (PW3). PW3 told the trial court that she is familiar with PW l as she used to see her passing-by while going to school. She said that, on the fateful day at around 17:00 hrs., PWl arrived at her home. Her clothes were full of mud and she was bleeding on her right hand. Upon inquiry, she was told that she was attacked by a man who attempted to rape her but

she did not mention the man's name. PW3 took the victim to her sister and left her there. Later, PW1 explained the ordeal to her parents who took her to the village chairman and then was taken to the hospital for treatment. There was also the evidence of one of her friends who were with her on that fateful day. Irene Edmund Mbuya (PW2) told the trial court that, on 23rd May 2019, around evening hours, she was heading home after school with PW1 and Glory. As there were some rain drops, she ran home with Glory while leaving behind PW1. On their way, they met with a man who greeted them but she did not know the name of the said man as it was her first time to see him. Dr. Daniel Mlay (PW4) working at Kilema hospital received the victim on 24th May, 2019 for medical examination. Upon examination, he observed that the victim was injured on her right palm, and that, she had six cuts wounds which were not deep. His opinion was that the cut wounds were caused by a sharp object. He filled the results in a PF3 which was admitted in evidence as exhibit PI. A police officer with police force number D 7157 Detective Corporal Juma (PW5), working at Kilema Police Post said that, on 25th May, 2019 he was assigned a police case file concerning the appellant 4

for investigation. He interrogated the witnesses and started to look for the appellant. With the help of good samaritans, he managed to arrest him on 10th June, 2019. In his sworn evidence, the appellant completely denied any involvement in the allegations. Nonetheless, he admitted being arrested on 9th June, 2019 at around 14:00 hrs., when he was on his way home coming from his farm. He also admitted to be taken to Kiiema Juu Police Station. The trial court was satisfied that the prosecution witnesses proved the case beyond reasonable doubts. It found that the evidence of PW1 who was the key witness was credible and reliable as it was corroborated by PW2 and PW3. PW2 said she saw a man on that fateful day. PW3 saw PW1 in bad condition and her palm was cut Accordingly, the trial court found the appellant guilty as charged/ convicted and sentenced him as stated earlier. The first appellate court, as hinted earlier, dismissed the appellant's appeal. Still dissatisfied, the appellant filed this second appeal. At the hearing of the appeal, the appellant appeared in person, unrepresented. On the other hand, Ms. Janeth Sekule, learned Senior

State Attorney, assisted by Ms. Tusaje Samwel, learned State Attorney, appeared for the respondent/ Republic. The appellant listed eight (8) grounds of appeal in his memorandum of appeal. In the first ground of appeal, the appellant complained that the first appellate Judge erred in law to sustain the conviction and sentence while PW1 failed to name the suspect at the earliest opportunity, that is, to PW3 who was the first person to come in contact with soon after the occurrence of the offence. It was the submission of the appellant that such failure dented the credibility of PW1 which made her evidence to be highly suspect and unreliable. To cement his submission, he cited the case of Sadiki Hamisi @ Rushikana & 2 Others v. The Republic, (Criminal Appeal No. 381 of 2017, Criminal Appeal No. 382 of 2017 and Criminal Appeal No. 383 of 2017) [2021] TZCA 625 (1 November, 2021; TANZLII) where it was held that: "The Court has consistently held that failure on the part o f a witness to name a known suspect at the earliest available and appropriate opportunity renders the evidence o f that witness highly suspect and unreliable ." 6

In reply, Ms. Sekuie admitted that the victim did not mention the appellant to PW3 but tried to impress upon us to find that PWl's evidence was credible and reliable as held by the two courts below. She contended that failure to name the suspect at the earliest opportunity is not a decisive factor but just a re-assuring factor. In Support of her submission, she referred us to our earlier decision in the case of Chacha Jeremiah Murimi & 3 Others v. The Republic (Criminal Appeal 551 of 2015) [2019] TZCA 52 (4 April 2019; TANZLII), where the Court held that: "In matters o f identification, it is not enough merely to look at factors favouring accurate identification, equally important is the credibility o f the witness. The conditions for identification might appear ideal but that is not guarantee against untruthful evidence. The ability o f the witness to name the offender at the earliest possible moment is in our view reassuring though not a decisive factor ." The learned Senior State Attorney added that the evidence of PW1 needs to be considered with the other evidence as whole before discrediting her. She pointed out that, according to the evidence on record, the victim reported the incident immediately after it took place 7

and was issued with the PF3 by the police on the same day, and that, on 25th May, 2019, PW5 was assigned the file that showed the suspect was the appellant. Relying on the authority in the case of Good luck Kyando v. The Republic [2006] T.L.R. 363, Ms, Sekule argued that every witness must be believed and his testimony accepted unless there are good and cogent reasons not believing him. In that respect, she contended that, the trial court and the first appellate court rightly found PW1 as credible and reliable witness. Admittedly, PW1 was found credible and reliable witness by the two courts below. We are alive to the settled principle of taw that the trial court is best placed to assess the credibility of the witness as it has an advantage of seeing as well as observing the demeanour of the witness both verbal and non-verbal behaviour, including the witness's reactions and responses to the questions posed to him, the facial expressions, attitudes, tone of voice, eye contact, posture and body movements than the appellate court which merely reads the transcripts of the record. Yet, in the case of Shaban Daud v. The Republic, Criminal Appeal No. 28 of 2000 (unreported), the Court acknowledged that:

"... credibility o f a witness is the monopoly o f the trial court but only in so far as demeanour is concerned. The credibility o f a witness can also be determined in two other ways: One, , when assessing the coherence o f the testimony o f that witness. Two, when the testimony o f that witness is considered in relation with the evidence o f other witnesses, including that o f the accused person. In these two other occasions the credibility o f a witness can be determined even by a second appellate court when examining the findings o f the first appellate court." It follows therefore that this Court, sitting as the second appellate court, can re-assess the credibility of a witness by looking at the coherence of the testimony and compare such evidence with other witnesses' evidence including the evidence of the accused person. In the present appeal, we have carefully scrutinized the evidence of PW1 and observed that, at page 13 of the record of appeal, in her examination in chief, she told the trial that: "I told them to run as I was not able to run due to my disability. My friends run away. Few minutes later, Fredy Pamphir passed where I was. He went on few paces and returned back to 9

me. He attacked me on my neck and put a knife to me. "[Emphasis added]. Again, at page 14 of the record of appeal, she continued to testify that: "The accused's name is Fred Pamphir, I usually met him at the village." From the above evidence, it seems that PW1 knew her attacker by name, and that, he was not a stranger to her because she used to see him at the village where they both reside in. When assessing the evidence of PW1 in Isolation of other pieces of evidence, it appears PWl's evidence is coherent and credible. However, when her evidence is evaluated with other pieces of evidence, PWl's evidence becomes questionable. According to PW3, PW1 told her she was attacked by a man who attempted to rape her but she did not mention his name. We wonder why PW1 did not name the appellant at the earliest available and appropriate opportunity, that is, to the first person who assisted her immediately after the attack, PW3. Given the circumstances of the case, we strongly believed that, if PW1 truly recognized the appellant as her attacker, she would not have said a man attacked her. She would have mentioned the appellant's name.

It is trite law that delay in naming a suspect at the earliest opportunity dents a witness's credibility. We stated this principle in a number of decisions. One such cases is the case of Marwa Wangiti Mwita & Another v. The Republic [2002] T.L.R. 39, where the Court held that: "The ability o f a witness to name a suspect a t the earliest opportunity is an important assurance o f his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry." We understand that the first appellate court acknowledged PW1 delayed in naming the appellant at the earliest opportunity. Yet, it proceeded to sustain the appellant's conviction by relying in the authority of the case of Chacha Jeremiah Murimi & 3 Others v. The Republic (supra). With great respect to the learned trial Judge, we held delay to name the suspect was not a decisive factor when dealing with the factors of identification. In the present appeal, there was no scintilla of evidence explaining away the failure in naming the appellant at the earliest and appropriate opportunity which PW1 got when she met with PW3. We strongly believe that had the first appellate court subjected the entire evidence to n

a close scrutiny, it could not have sustained the conviction and sentence. Besides, the trustworthiness of the evidence of PW1 is further diminished by the evidence of PW2. While PW1 claimed that the appellant was her fellow villager, PW2 who is the friend of PW1 and also resides in the same village of Kilema Chini did not know the appellant at all. He was a total stranger to PW2. This is gathered from her evidence, when she told the trial court that: " While running, we met one man whom we greet and continued running. He was coming where we came from.... I didn't know the name o f that person as ft was my first time to see him." [Emphasis added]. Deduced from the above, we find that the two courts below misapprehended the evidence. Therefore, we are entitled to interfere with the concurrent findings and find that the appeal has merit. Given that this ground of appeal suffices to dispose the entire appeal, determining the remaining grounds of appeal will be a futile exercise. In the end, we allow the appeal, quash the appellant's convictions and set aside the sentences meted out to him. We order that the 12

appellant, Fredy s/o Pamphir, be released from prison forthwith unless he is held there for some other lawful cause. DATED at MOSHI this 9thday of December, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of appellant in person and Mr. Henry Kasiano Daudi, learned State Attorney for the respondent/Republic is hereby certified as a true copy of the original. m il W A. S. CHjJJGULU ’ ; NA DEPUTY REGISTRAR j ;v I COURT OF APPEAL 13