Desteli Jonas @ Kalindamwango vs Republic (Criminal Appeal No. 36 of 2022) [2024] TZCA 1108 (15 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SlIMBAWANGA ( CORAM: SEHEL. J.A.. KIHWELO. 3.A. And MDEMU. J.A.’ l CRIMINAL APPEAL NO. 36 OF 2022 DESTELI JONAS @ KALINDAMWANGO ............ ........... .... ...... APPELLANT VERSUS REPUBLIC ....... ............................................................. ......RESPONDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) (Ndunquru, J.) dated the 13th day of September, 2022 in DC. Criminal Appeal No. 7 of 2021 JUDGMENT OF THE COURT 24tt' October & 15th November, 2024 KIHWELO. 3.A.: Before the Court of Resident Magistrate of Katavi at Mpanda the appellant, Desteli Jonas @ Kalindamwango was arraigned with the offence of rape and on being found guilty as charged, he was convicted and sentenced to thirty years' imprisonment. Believing that justice was not served by the trial court, he appealed to the High Court of Tanzania at Sumbawanga in Civil Appeal No. 7 of 2021 (the first appellate court). His appeal to the High Court was dismissed in its entirety, hence this second appeal.

On the basis of six prosecution's witnesses and two documentary exhibits, the prosecution allegation was that on the 6th March, 2019 at Kabungu Village within Tanganyika District in Katavi Region, the appellant, had carnal knowledge of a woman aged 67 years without her consent. In order to conceal her identity, we shall simply refer to her as PW3 or victim. The appellant, maintained his innocence when the charge was put to him. It was the prosecution version of the story that on the fateful day at or around 23:00 hrs. while PW3 was asleep, the appellant secretly found his way inside PW3's house holding a torch and machete. The appellant then forced PW3 to lie in a manner that it would ease him have intercourse with her. When PW3 seemed to be hesitant to obey the appellant's demands, the appellant slapped her. He then, further threatened PW3 while repeatedly saying that he must have sex with her. Reluctantly, PW3 surrendered and the appellant, who tightly held her around the neck, undressed himself first. Next, the appellant forcefully undressed PW3 and inserted his manhood into PW3's vagina. For about 15 minutes, a struggle ensued between the appellant and PW3 until the appellant's thirsty was quenched. Having accomplished his dark desire, the appellant took to his heels and disappeared from the scene. According to PW3, it occurred that the appellant who was residing at the same village with her was well known to PW3 and had previously

visited her thrice in the afternoon of that day seeking for vegetables. A little bit later, after the rape incident, PW3 having regained some strength, she went to her son one Mawazo Shaban Migirima (PW4) to report the incident. It was the prosecution further evidence that PW3 and PW4 went to report the incident to the hamlet leader, Adolf Bathromeo (PW5) who instructed the militia to arrest the appellant and PW4 along with a militia, one John Zakama Lukas (PW1), arrested the appellant following information from PW3 and matched him to the head office. According to PW5, he made a phone call to the Village Executive Officer of Kabunga village who informed the police and the appellant was taken to the police station for further questioning. There was some further prosecution evidence from a police officer No. G. 8130 Detective Corporal Granvel who on 7th March, 2019 was assigned to record the cautioned statement of the appellant which, after recording, produced in evidence and admitted as exhibit PI. On his part, Athuman Junane Kisubi (PW6) testified that on 8th March, 2019 he received PW3 a patient who was complaining about neck, shoulder and chest pains occasioned by the rape incident. He then, medically examined PW3 and filled the PF3 which was later admitted in evidence as exhibit P2.

Later on, the appellant was formally arraigned in court on the 3r d April, 2019 and, that concludes the prosecution version which was unfolded during trial. In reply, the appellant reiterated his complete disassociation from the prosecution accusation and stoutly defended his innocence. In his sworn testimony, he testified that, the prosecution did not prove the case as required. On the whole of the evidence, the trial court accepted as truthful the evidence of the prosecution's witnesses. The appellants denial was rejected. In the upshot, the appellant was found guilty, convicted and accordingly sentenced as hinted before. In protesting his innocence, the appellant lodged the appeal before the first appellate court as narrated above, which upon hearing the appeal on merit, on 13th September, 2022 it was dismissed. Still aggrieved, the appellant seeks to overturn the decision of the first appellate court and has amassed six (6) grounds which can be crystalized as hereunder. One, the first appellate court erred to uphold conviction and sentence while the case was not proved beyond reasonable doubt. Two, the first appellate court erred to uphold conviction and sentence based upon a cautioned statement which was not freely and voluntarily taken. Three, the first appellate court erred to uphold

conviction and sentence which was based upon weak identification. Four, the first appellate court erred to uphold conviction and sentence while there was no evidence that the victim raised an alarm. Five, the first appellate court erred to uphold conviction and sentence while there was no document to prove confession made to PW1, PW4 and PW5 and Six, the first appellate court erred to uphold conviction and sentence while the defense case was not considered. Eventually, the appellant appeared before us in person, and had no legal representation, while on the adversary side, the respondent Republic was represented by Mr. Deusdedit Rwegira, learned Senior State Attorney. We invited the appellant to clarify his grounds of grievance but owing to his being a lay person not conversant with the law, essentially, he adopted the grounds of appeal, and urged us to consider them in determining the appeal. He also opted to let the learned Senior State Attorney reply to his grounds of appeal, but retained the right to rejoin if need would arise. For his part, Mr. Rwegira initially supported the conviction and sentence on account that the charge of rape was proved as the victim ably indicated that she did not consent and to prove that, she demonstrated how she was injured around her neck something which was supported by PW3 the medical officer from Katavi Referral Hospital who medically

examined the victim. The learned Senior State Attorney further argued that, PW3 reported the rape incident to PW4 her son and PW5, the hamlet leader of Ikulu Kabungu Village. In further submission, the learned Senior State Attorney contended that, the appellant was properly identified by PW3 the night of the incident. However, in the course of a dialogue, Mr. Rwegira appreciated that having found that the conditions for proper identification were not clearly explained, it was improper for the first appellate court to have upheld the conviction and sentence. Similarly, on a reflection, the learned Senior State Attorney was of the view that the cautioned statement, exhibit PI which was tendered by PW2 was actually recorded by someone else and not the one who tendered it in evidence. Given the fact that exhibit PI was recorded by someone else and not PW2 who tendered it, he moved us to strike it out from the court record. Thus, upon realizing that he was treading a solitary path, Hr. Rwegira abandoned the course and threw his weight in support of the appeal. In rejoinder, the appellant simply prayed that the appeal be allowed and he should be released from prison. In the light of the foregoing submissions, the vexing issue which stands for our determination is whether or not the appeal is meritorious. In determining this issue, we propose to address first the cautioned statement of the appellant exhibit PI, which Mr. Rwegira contended that it

was wrongly admitted in evidence and, on that basis, he moved us to expunge it from the record. Clearly, according to the typed record of proceedings exhibit PI appears to have been tendered in evidence by police officer No. G. 8130 Detective Corporal Granvel, who testified that he recorded the cautioned statement of the appellant on 7th March, 2019. But, the cautioned statement, exhibit PI indicate that the one who recorded the cautioned statement is police officer No. G. 8430 Detective Corporal Emmanuel. On our further perusal of the original record of appeal, we were able to confirm that the cautioned statement of the appellant, exhibit PI was recorded by police officer No. G. 8430 Detective Corporal Emmanuel who actually testified in court and tendered it on 5th August, 2019. It is unfortunate that, there were typing errors, instead of typing No. G. 8430 Detective Corporal Emmanuel it was wrongly typed No. G. 8130 Detective Corporal Granvel. Therefore, the concern that the cautioned statement was tendered by someone else other than the one who recorded it, does not arise anymore, and therefore, we shall not make any further painstaking inquiry into this matter. It is, indeed, obvious that this issue is resolved and the prayer to expunge exhibit PI from the record is declined. Next, we will determine the issue of visual identification of the appellant by PW3. Our first concern is whether it had really been

established that the circumstances of identification of the appellant were favourable for proper identification. Evaluating the evidence of PW3 on record, we are respectfully of the view that, the conditions of identification cannot be said to have been ideal as we shall explain later. Unlike the first appellate court, we are unable to assert, as the Judge did, that since the victim knew the appellant before and named the suspect at the earliest opportunity, then chances of mistaken identity were minimal. We are of the considered opinion that, we cannot safely discount the very real possibility of mistaken identity even where the victim and the assailant are familiar to each other as long as circumstances surrounding the identification are not favourable for proper identification. There is, in this regard, a considerable body of case law in this area. See, for instance, Philipo Rukaiza @ Kicheche Mbogo v. Republic, Criminal Appeal No. 25 of 1994 (unreported) in which we stated that: , "The evidence in every case where visual identification is what is reiied on must be subject to carefui scrutiny, due regard being paid to ail the prevailing conditions to see if in all the circumstances there was really sure opportunity and convincing ability to identify the person correctly and that every reasonable possibility o f error has dispelled. There could be mistake in identification notwithstanding the honest belief o f an identifying witness,"

Clearly, the law is perfectly settled that evidence of visual identification is the weakest kind and unreliable and the court should not rely on such evidence without warning itself of its fallibility. We discussed this at considerable length in the case of Felician Joseph v. Republic (Criminal Appeal No. 152 of 2011) [2012] TZCA 93 177 (28 May 2012; TanzLII) and we observed that: " . . . visual and aura! identification evidence, be that o f a stranger or a previously known person, particularly one done under unfavourable conditions, such as at night, is o f the weakest kind and most unreliable. Such evidence should be approached with utmost circumspection. No court should act on such evidence unless all possibilities o f mistaken identity are eliminated and the court is fuily satisfied that the evidence is absolutely watertight." Thus, as observed above, reliance on such evidence to convict an accused person should only be where all likelihood of mistaken identity is eliminated and when the court is satisfied that the evidence before it, is absolutely watertight. Short of that, it is unsafe to convict the accused. In the most celebrated case of Waziri Amani v. Republic [1980] T.L.R. 250, the Court outlined factors that have to be considered when courts deliberate on identification evidence. These factors are such as;

One, the time the witness had the accused under observation. Two, the distance at which the witness had the accused under observation. Three, if there was any light, then the source and intensity of such light; and Four, whether the witness knew the accused prior to the incident. It is not insignificant to say that, our own objective evaluation of the prosecution evidence in particular that of PW3, the sole eye witness, we are of the view that the conditions for proper identification undoubtedly were not favourable. The scanty PW3's evidence merely stated in part that, the appellant had a torch and machete and nothing more was offered in terms of the source of light apart from alleging that the appellant was holding torch. PW3 did not provide further evidence as to the intensity of the light even if we assume for the sake of argument that the torch was lit. Moreover, PW3 did not describe how he identified the appellant apart from stating that the appellant was working in the same village and that prior to that the appellant had earlier on visited his house thrice in search for vegetables. Admittedly, the Judge before the first appellate court was of the view that PW3 did not state clearly the kind and source of light she used to identify the appellant and its intensity. For clarity, we wish to let the record of appeal at page 69 speak for its self:

" .......... Though, it may be true that the appellant was known to the victim (PW3), yet the visual identification during night in a total darkness and the circumstances o f threat is o f weakest kind o f evidence and most unreliable. The victim (PW3) in her testimony failed to describe the intensity o f light o f the torch. She did not say other kind o f light she had in her home apart from the light o f the torch which the appellant was holding and controlling the torchlight The question o f intensity and sufficiency o f light for purposes o f visual identification and recognition is fundamental and were discussed at length in the two cases I referred." Mr. Rwegira in supporting the appeal, contended that, and rightly so in our mind, having found that the conditions for proper identification were not clearly explained, it was improper to convict the appellant. However, very unfortunate, and for an obscure cause, the first appellate court upheld the conviction and sentence curiously on the reasons that, since the victim (PW3) knew the appellant before the fateful day and managed to name him at the earliest opportunity which led to his arrest, then, the victim properly identified the appellant. We find the reasoning by the first appellate Judge completely inexplicable and we note this with regret and sorrow for the reasons that,

having found that the established conditions for proper identification were not met, it was inappropriate and unsafe to hold that because the victim knew the suspect before and named him at the earliest opportunity, then the victim properly identified the appellant. This is contrary to the principles enunciated in the case of Felician Joseph v. Republic (supra) and others cited above. We are further keenly alive to the fact that the appellant was never mentioned by PW3 in her testimony at any material time, leave alone at the earliest opportunity and this is conspicuously clear in her evidence on record. The nagging but pertinent question which remains unanswered is why PW3 throughout her testimony did not mention the appellant to PW1, PW4, PW5 and even the police. It is our view that, the first appellate Judge findings that PW3 named the appellant at earliest opportunity were extraneous matters not borne out from the evidence. Moreso, in this case because those who said PW1 mentioned the appellant were PW1, PW4 and PW5 and not PW3 in her testimony. We therefore, find that, the identification of the appellant was not watertight. Having discredited the evidence of PW3, we are, admittedly, left with the cautioned statement of the appellant, exhibit PI only. The reason is not far-fetched, because PW1, PW4 and PW5 testified that they were informed by PW3 and owing to the discrediting of the evidence of PW3,

their testimony is somehow too remote to the incident and their material account automatically depreciates. If anything, it is a mere suspicion and not a very strong one. It is elementary principle of law that mere suspicion alone, however strong cannot ground a conviction. We will now turn to the cautioned statement of the appellant. We must admit that the cautioned statement of the appellant, exhibit PI has caused us considerable anxiety. It is a peremptory principle of law that if the court is satisfied that the cautioned statement is property admissible and so admits it, then when the court is arriving at its judgment it will consider all the evidence before it and all the circumstances of the case, and in doing so it will consider the weight to be placed on any confession that has been admitted. The nagging but pertinent question which remains unanswered will be, is what is stated true? The answer to this question was reiterated as early as 1967, by the East Africa Court of Appeal in the case of Tuwamoi v. Uganda [1967] E.A. 84 in which the Court stated that; "..if the confession is the only evidence against an accused then the court must decide whether the accused has correctly related what happened and whether the statement establishes his guilty with that degree o f certainty required in a criminal case. This applies to all confessions whether they have been retracted or repudiated or admitted, but when

an accused person denies or retracts his statements at the trial then this is a part o f the circumstances o f the case which the court must consider in deciding whether the confession is true." A cursory perusal of the cautioned statement of the appellant, exhibit PI clearly raises some doubts on its truthfulness in particular when compared to the evidence of PW3. While PW3 testified that the appellant previous had paid visit thrice seeking for vegetables, the appellant stated that he paid visit once in the afternoon looking for fire to lit his cigarette. Furthermore, the account of what transpired during the rape incident as recounted by the appellant in his cautioned statement differs in material particulars with what the victim, PW3 stated. It is very difficult for us, therefore, to determine who among the two witnesses was actually telling the truth. We are settled in our mind that this raises doubts on the truthfulness of what is contained in the cautioned statement of the appellant. This being the case it was unsafe for the trial court to have convicted the appellant on the basis of the cautioned statement and the first appellate court erred to uphold conviction and sentence based upon the cautioned statement.

There can be no better words to express our view and conclude as we do that, the prosecution's evidence was weak to discharge its burden of proof that the appellant committed the crime he stood charged. All said and done, we allow this appeal against conviction for rape and sentence which are hereby quashed and set aside accordingly. The net effect is that, the appellant should be released forthwith from custody unless he is held lawfully for another cause. DATED at DAR ES SALAAM this 14th day of November, 2024. 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, through video link from High Court Sumbawanga, is hereby certified as a true copy of the B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL