Ally s/o Rashid @ Ally Mwizi vs Republic (Criminal Appeal No. 662 of 2020) [2024] TZCA 1111 (15 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA ( CORAM: SEHEL. J.A., KIHWELO, 3.A. And MDEMU, 3.A.) CRIMINAL APPEAL NO. 662 OF 2020 ALLY s /0 RASHID @ ALLY MWIZI..........................................APPELLANT VERSUS THE REPUBLIC............................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Sumbawanga) fMkeha. 3.^ dated the 30th day of October, 2020 in DC. Criminal Appeal No, 09 of 2019 JUDGMENT OF THE COURT 25th Oct., & 15th Nov., 2024 SEHEL, 3.A.: This second appeal originates from the judgment of the Resident Magistrate Court of Katavi at Mpanda (the trial court) in which the appellant was convicted with unnatural offence contrary to section 154 (1) (a) of the Penal Code, Cap. 16 R.E 2002. He was sentenced to thirty years imprisonment. His appeal to the High Court of Tanzania at Sumbawanga (the first appellate court) was dismissed, hence the present appeal. A brief account of the evidence which led to the conviction of the appellant is as follows: the prosecution alleged that, on 17th June,

2016 at Kotazi area within Mpanda District in Katavi Region, the appellant had carnal knowledge to a 25 years old lady against the order of nature. For the purpose of this judgment, we shall refer to the lady as "the victim" or "PW1" to disguise her identity. The appellant denied the allegation. Therefore, a full trial ensued. The prosecution called a total of six witnesses and tendered two pieces of physical evidence, namely; a torn black trouser and a torn grey blouse that were collectively admitted as exhibit PI and documentary evidence, namely; a Police Form No. 3 that was admitted in evidence as exhibit P2. The appellant fended for himself and did not call any witness. He also did not tender any exhibit The victim (PW1) is a business woman. She owned a pharmaceutical shop. On 13th June, 2016, her house was broken into by bandits and stole therefrom an assortment of her belongings. In the course of tracing her stolen properties, PW1 got introduced to the appellant by her two colleagues that he would assist her to recover her stolen goods. On the alleged incident date, that is, on 17th June, 2016 at around 11:00 hrs,, the appellant met with the victim at her shop and was paid TZS. 10,000.00 in order to hire a bicycle to make a follow-up. At around 19:45 hrs., he returned and claimed that he had located whereabouts of the stolen goods and demanded to be paid 2

TZS. 25,000.00 for him to go and collect them. PW1 was reluctant to pay as she wanted first to see her stolen goods but her two friends assured her that the appellant was not a kind of person who would steal from her. She therefore paid him and together they headed to where the stolen goods were hidden. According to Meksiana Beda Katani (PW4), it happened that, on that fateful day, she went to the victim's shop to buy medicine for his sick child but could not find her in her shop. She entered into the second room which is used as a beauty salon and saw the victim, two ladies and the appellant. PW4 called her to attend her but took like five minutes. The victim apologized to her and told her that the appellant had found her stolen properties and he would take her there. On their way, the appellant and the victim passed through graveyards but when they reached at Quarter's area, the appellant kicked her on the leg. She lost strength and fell down. The appellant pulled her to the midst of the graveyard, undressed her and sodomised her. She could not raise an alarm because the appellant threatened to kill her. After the appellant had finished, he told her to move to King Palace Guest House so that he could handover to her the stolen properties. As she was fearing him, the victim obeyed to his orders but with a plan to raise an alarm when they meet people on 3

the way. When they reached near Ambassador's Guest House, PW1 saw a man, Juma Hamisi (PW2) who was frying chips for sale. The victim rushed to him for help but the appellant picked a brick and threatened to throw it to PW2. PW2 ran away and PW1 followed him. They both slipped and fell down. While they were down, the appellant got hold of PW1 and started pulling her. The victim continued to shout for help. There and then, a prison officer, one, Machumu Manyama (PW5) who lived nearby, appeared. PW5 ordered the appellant to put down the stone and to release the victim. The appellant complied; the victim boarded a motorcycle and left. On that same date, the victim was examined by Said Ramadhani (PW3), a clinical officer at Mpanda District Hospital. He observed that the victim had bruises and sperms in her anus. PW3 filled the results in a PF3 which was admitted in evidence as exhibit P2. A police officer with police force number G. 8136, Detective Corporal, Masuke (PW6), working at Investigation Department at Mpanda Police Station, said that, on 20th June, 2016 while on duty, he was assigned the police case file for investigation. He investigated the case and recorded some of the witnesses statements.

In his sworn evidence, the appellant completely denied any involvement in the allegations. He claimed that on 17th June, 2016, he was at home and during night hours, he had a fight with his co- tenants and that he got injured on his eye. He went to the police station to report the matter but was arrested and charged with unnatural offence. The trial court was convinced by the prosecution case and found PW1 a credible witness who spoke nothing but the truth. It also found that the evidence of PW1 was substantially corroborated with the evidence of PW2 and PW5 who found the victim in a dirty condition and that, the victim named the appellant to the police when she first got the opportunity to name her assailant. Accordingly, the appellant was found guilty as charged, convicted and sentenced as stated earlier. In the present appeal, the appellant raised three grounds of appeal that; one, the first appellate court erred in law and fact in upholding the conviction and sentence of the appellant since the appellant was not examined in order to establish whether the sperms found in the victim were of the appellant. Two, the first appellate court erred in law to uphold the conviction and sentence while no DNA test was conducted to the charged offence, and three, the case 5

against the appellant was not proved beyond reasonable doubt hence it was not safe for the first appellate court to uphold the conviction and sentence. At the hearing of the appeal, the appellant appeared in person, unrepresented. On the other hand, Mr. Deusdedit Rwegira, learned Senior State Attorney, appeared for the respondent/ Republic. When the appellant was invited to argue his appeal, he opted to adopt the grounds of appeal contained in the two sets of the memoranda of appeal, and thereafter, urged the Court to let him free from the prison custody basing on the grounds of appeal he raised. On his part, Mr. Rwegira fully supported the appeal on account that the prosecution failed to prove the case against the appellant beyond reasonable doubt. He pointed out that the trial court based its conviction on the incredible evidence of PW1 and that, it wrongly held at page 46 of the record of appeal that PW1 named the appellant to the police at the earliest opportunity. He contended that the record of appeal is completely silent on who, when and why the appellant was arrested. He argued that the evidence of the investing officer, one, G.8136 DC Masuke (PW6) was too general that he started to investigate the case on 20th June, 2016 and recorded some witnesses

statements. He did not say whether the victim mentioned the appellant or not. Even PW1 simply told the trial court that she took the motorcycle and rushed to the police station but she did not say whether she named the appellant to the police. Mr. Rwegira also faulted the procedure of admitting in evidence the PF3, exhibit P2. He pointed out that it was read over before being cleared for admission. He therefore urged the Court to strike it out from the record of appeal. It was also the submission of Mr. Rwegira that had the trial court properly evaluated the prosecution and defence case, it would not have found the appellant guilty with the charged offence and the first appellant court would not have sustained the conviction and sentence. He elaborated that, in his defence, the appellant lucidly explained why he was arrested. He said that, on the night of 17th June, 2016, he fought with his fellow tenants and got injured on his eye. He went to report the matter to the police station but he was arrested and charged with this offence. In that respect, Mr. Rwegira urged the Court to resolve the doubts in favour of the appellant. On our part, having heard the supporting oral submissions from the learned Senior State Attorney, we wish first to deal with the

procedural irregularity raised by Mr. Rwegira in admitting the PF3. Our scrutiny of the record of appeal reveals that the PF3 was read over in court before it was cleared for admission. In the case of Robinson Mwanjisi v. The Republic [2003] T.L.R. 218, the Court held inter alia thus: "Whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted, before it can be read o u t" Emphasis supplied. We are therefore of the view that, the PF3 which was received contrary to law lacked evidential value and it deserves to be expunged from the record as we hereby do. We now turn to the grounds of appeal. Generally, the three grounds of appeal boil down to one issue, that is, whether or not the prosecution proved the offence against the appellant beyond reasonable doubt. It is an elementary position of law that, in criminal cases, the burden to prove the allegation beyond reasonable doubt is on the prosecution. It is also the law that, where a reasonable doubt arises, it has to be resolved in favour of the accused person.

In the present appeal, as correctly argued by Mr. Rwegira, the two lower courts believed and heavily relied on the evidence of the victim, PW1 in grounding and sustaining the appellant's conviction. Admittedly, the best evidence in sexual offences comes from the victim - see: Selemani Makumba v. The Republic [2006] T.L.R. 379. But such evidence must be credible and reliable and the trial court is best placed in assessing the credibility and the demeanour of the witness as it had opportunity to see the witness when he/she was testifying. We stated this position in the case of Shaban Daud v. The Republic, Criminal Appeal No. 28 of 2000 (unreported) that: "May be we start by acknowledging that credibility o f a witness is the monopoly of 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 of the testimony of that witness. Two, when the testimony of that witness is considered in relation with the evidence of other witnesses, including that of 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 of 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 considering the entire evidence including that of the accused person and more importantly, in accordance with the surrounding circumstances. We have closely examined the evidence of PW1 and found that her evidence is highly improbable when considered with other evidence on the record of appeal. According to the evidence on record, the appellant and the victim came to know each other following the theft that took place at the victim's residence. Nonetheless, the record is silent as to whether the victim had ever reported the theft to the police station for them to investigate the crime. Since the prosecution failed to bring any evidence to prove that indeed theft took place at the victim's evidence and it was reported at the police, we find PW l's testimony is highly doubtful. Besides, the surrounding circumstances of the present appeal suggest that PW1 was introduced to the appellant by her two colleagues while all other witnesses, that is, PW2, PW3, PW4 and PW5 said the appellant was very familiar to them, and commonly known as "Ally Mwizi." Moreover, we gathered from the record of appeal that PW4 and the

victim knew each other very well because PW4 had rented a room in the house in which the victim resides. In addition, as correctly submitted by Mr. Rwegira, there is no scintilla of evidence suggesting that the victim named the appellant to the police station as her assailant. The victim claimed that she took the motorcycle and rushed to the police station where she told them everything. Nonetheless, the police officer to whom the victim went to report and named the appellant was not called as a witness. It is therefore not clear what exactly did the victim tell the police. There is nothing in the record to the effect that the victim mentioned the appellant at her earliest opportunity. Even after being assisted by PW5. According to the evidence of PW2, the victim was able to identify PW5 as a police officer since she called him by his title. Part of his testimony was to the effect that: "Then a man appeared and the lady kept on shouting for help. That lady managed to identify him and said "Askari, help me! Askari help me!" The lady fought and fled herself from the person." Therefore, any right-minded person cannot understand the victim's reaction. It is inconceivable why the victim decided to board

the motorcycle and leave. Common sense and logic dictates that the victim would have reported the appellant there and then when PW5 came to her rescue. The doubts we have are further compounded with the fact that there is no explanation given by the prosecution on who, when and why the appellant was arrested. Moreso, unlike the trial court, we failed to find any corroborative evidence that the victim was found in dirty condition. PW5 said nothing about the victim's condition and appearance. PW2 told the trial court that the victim had grass on her head and her blouse was torn after he was asked by the trial court but in his entire evidence in chief, cross-examination and re examination said nothing about the victim's condition and appearance. With these anomalies, we strongly believe that the two lower courts misdirected by failing to take into consideration the totality of the prosecution and the defence evidence. Had the trial court properly considered the appellant's defence that he was arrested after he had gone to the police station to report a crime, it would not have reached to the conclusion it reached. Since the two courts below misapprehended the evidence, we are entitled to interfere with the concurrent findings of the lower courts and find that the appeal has merit.

In the end, we allow the appeal, quash the appellant's conviction and set aside the sentence meted out to him. We order that the appellant Ally s/o Rashid @ Ally Mwizi, be released from prison forthwith unless he is held there for some other lawful cause. DATED at DAR ES SALAAM this 14th day of November, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 15th day of November, 2024 in the presence of the appellant in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the respondent/Republic via video link at High Court Sumbawanga; is hereby certified as a true copy of the original.