Jero Essau vs Republic (Criminal Appeal No. 495 of 2021) [2024] TZCA 1066 (7 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LEVIRA, J.A., MAIGE. J.A. And MASOUD. J.A.1 CRIMINAL APPEAL NO. 495 OF 2021 JERO ESSAU................................................................................ APPELLANT VERSUS THE REPUBLIC.........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Nqunyale, 3) Dated the 23r d day of July, 2021 in Criminal Appeal No. 312 of 2016 JUDGMENT OF THE COURT ffh & 7h November, 2024 LEVIRA. J.A.: This is a second appeal by Jero Essau, the appellant, who was before the District Court of Mbarali at Rujewa (the trial court) charged with and convicted of rape contrary to sections 130 (2) (b) and 131 (1) of the Penal Code, Cap 16 (the Penal Code) and sentenced to thirty (30) years imprisonment. He was as well, ordered to compensate the victim TZS. 1,000,000.00. Aggrieved by that decision, the appellant unsuccessfully appealed to the High Court vide Criminal Appeal No. 29 of 2021 subject of the present appeal. i

It was the prosecution allegation that on 4th June, 2016 at about 22:10 hours at Zahanati "A" Igurusi Village within Mbarali District and Mbeya Region, the appellant had canal knowledge of "EC" (the name withheld to preserve her dignity), a woman of 31 years old without her consent. In proving the case, the prosecution produced three witnesses and a medical examination report (PF 3) of the victim- Exhibit PI. The appellant, as sole defence witness, denied the charge. In herevidence, "EC" (PW1) testified to the effect that, on the material day and time, she was sleeping in her bedroom while the electric lights were on. Suddenly, the door to her room was broken and the appellant entered therein while holding a knife. He squeezed her neck and threatened to kill her. He undressed the victim, he too undressed and forcefully raped the victim for about two hours. Thereafter, he warned the victim not to tell anyone about what he did otherwise, he would kill her and he left the place. On the same night, the victim informed her neighbour about the incident and together went to report to Igurusi Police Station where PW1 was issued with a PF3 for medical examination. They went to Igurusi Health Center and the victim was attended by Doctor Mathew Joseph Kasaga (PW3). According to PW3, having 2

examined PW1, he found a scar on her neck and bruises on her vagina. He completed the victim's PF3 which eventually was admitted as exhibit PI. G 4009, DCT Const Christopher (PW2) investigated the case and interrogated the victim who told him that she was raped by Jero Essau (the appellant) who was also known to him. Later, the appellant was arrested and arraigned before the trial court for the offence of rape. In his defence, the appellant denied the charge claiming that the victim was a liar. The trial magistrate weighed the evidence of both sides and found the appellant guilty as charged. Consequently, it convicted and sentenced him as stated earlier. The appellant's appeal to the High Court was not successful as hinted earlier, hence the present appeal. In this second appeal, the appellant has raised a total of twelve grounds of appeal, which in our view, save for the eighth ground which was not raised at the High Court, can be condensed into four complaints: First, that he was not properly identified at the scene of crime as per grounds 1, 2, 3 and 11; second, that the case against him was not proved beyond reasonable doubt as per grounds 4, 5, 7, 10 and 12; third, that his defence was not considered as per ground 6 in the memorandum of appeal; and finally, 3

that section 210 (3) of the Criminal Procedure Act, Cap 20 was not complied with by the trial magistrate in ground 9 of appeal. At the hearing of the appeal, the appellant appeared in person unrepresented, while the respondent Republic had the services of Ms. Hannarose Kasambala, learned Senior State Attorney assisted by Mr. Salmin Zuberi, learned State Attorney. The appellant adopted his grounds of appeal and preferred to hear first from the respondent while reserving his right to make a rejoinder. In reply to the appellant's first complaint regarding identification, Ms. Kasambala submitted that the appellant's complaint is baseless. According to her, the appellant was well identified by PW1 due to the following reasons; one, PW1 stated that the electric light was on when the appellant entered her room as it can be seen at page 5 of the record of appeal; two, she knew the appellant as Jero Essau; three, she knew the appellant before the incident as she used to see him in the streets; four, PW1 stated that the incident took almost two hours so she had enough time to recognize him; and five, she said, since it was rape, the victim and the appellant were in close contact. To support this argument, she cited the case of Wilson Elisa @ Kiungani v. Republic [2022] TZCA 629 (13 October 2022, TANZLII), where the Court took into 4

consideration proximity and length of time the victim was in observation of the suspect to be favourable conditions for correct identification. It was Ms. Kasambala's further argument that, although PW1 did not state the intensity of the light that illuminated the room, she mentioned that the electric light enabled her to identify the appellant. To her, that was sufficient to prove that she identified the appellant. She cited the case of Eliapenda Zephania Zakaria @ Kicheche v. Republic [2024] TZCA 728 (14 August 2024, TANZLII). According to Ms. Kasambala, it was not necessary for PW1 to give description of the appellant because she knew him even before the incident and that, when she went to PW2, she mentioned him as the suspect. Besides, she argued that the appellant did not cross examine PW1 regarding the identification and in his defence, he said nothing to that effect. Ms. Kasambala went on to state that, the appellant was positively identified by PW1 despite the fact that PWl's neighbour who was allegedly informed first about the incident and escorted PW1 to the police, was not called to testify. According to her, calling him could not add anything because he could not have testified anything different from PW2. As such, she said, the said neighbour did not witness penetration which is one of the ingredients of rape offence. Additionally, she 5

submitted that in terms of section 143 of the Evidence Act, Cap 6 there is no specific number of witnesses who are required to prove a fact. Finally, she urged us to dismiss the said complaint. In his rejoinder, the appellant insisted that he was not properly identified at the scene of crime as the intensity of light was not stated. The appellant's conviction in this case was mostly based on appellant's identification by PW1 at the scene of crime. It is apparent from the evidence of PW1 which was corroborated by PW3 that on the fateful date, she was raped. However, the question for our determination is whether the appellant was positively identified by PW1 to be her ravisher as alleged. In her testimony, PW1 stated that when the appellant entered her room, the electric light was on and thus she was able to identify him. The following were her words: "I was sleeping, within three minutes, entered one man I didn't switch off the electric lights,\ so I identified the man. The man squeezed me, the man is called Jero Essau. (Jero Essau is here before this court there she is pointing to the accused. The accused squeezed my neck and saying "he is killing me" the accused held a knife on his hand.... The accused raped me for two hours.... I went to my neighbour I knocked the 6

door he opened the door. We went to police with my neighbour we went to Iguras Police Station. We to/d the police the whole scenario. I was given PF3..." It can be observed from the above excerpt that, PW1 only stated that she identified the appellant as the lights were on and she knew him before the incident. However, as complained by the appellant, she did not give any description of the said man who entered her room. By mentioning the appellant's name, it would be presumed that the identification was by recognition. Indeed, both courts below relied on this evidence as a proof that, the appellant was identified by recognition at the scene of crime by PW1. Another thing which made the lower courts to believe that the appellant was properly identified is because PW1 and the appellant spent enough time together and she was able to identify him at the dock. In Samweli Kivike v. Republic [2016] TZCA 697 (28 July, 2016, TANZLII) when the Court was determining an issue regarding identification of an accused at the scene of crime, it referred to its previous decision in Shamir John v. Republic, Criminal Appeal No. 166 of 2004 (unreported), where it stated: 7

"There is no gain saying that evidence in identification cases can bring about miscarriage o f justice. In our judgment whenever the case against an accused depends wholly or substantially on identification of the accused which the defence alleges to be mistaken, the courts should warn themselves of the special need for caution before convicting the accused in reliance in the correctness of the identification.... This is because it often happens that there is always a possibility that a mistaken witness can be convincing one.... Recognition may be more reliable 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 of close relatives and friends are sometimes made". [Emphasis added] As we hinted above, the appellant's conviction was based solely on the purported recognition done by PW1 at the scene of crime. Much as it is true that the appellant was identified by name, the victim, if at all she knew the appellant before, she should have given explanation on how did she know him. We have thoroughly examined the evidence of PW1

and as it can be observed from the extract we have quoted above, PW1 did not lead evidence to show how she knew the appellant and / or bother even to describe him. A part from stating that the appellant, on the material day, wore a pair of black trousers and pant, nothing else is found in her evidence. With respect, we are unable to agree with Ms. Kasambala that by mentioning the name without description, the victim recognized the appellant at the scene of crime. The courts below believed PWl's story without warning themselves before conviction as guided by the authority we have cited above. The appellant challenged PW1 during cross examination on how she knew and recognized him, the following was her response, at page 6 of the record of appeal: " / know you I see you in the street you squeezed my neck...". The nature of response by PW1 suggests that, the appellant intended to punch holes in the prosecution case by showing that he was not identified at the scene of crime. The answer given by PW1, in our view, was not satisfactory as it does not click in our mind that by mere seeing someone in the street, PW1 was able to know his full name that he was Jero Essau. In July Joseph v. Republic [2022] TZCA 322 (8 9

June 2022, TANZLII), we borrowed what we had said in John Madata v. Republic, Criminal Appeal No. 453 of 2017 (unreported), thus: "It is common knowledge that although the accused has no duty to prove his innocence, he is expected to make the theme o f his defence known so as to make the trial fair even to the prosecution, and we think this theme may be deduced from the line o f cross examinations or notices such as when the said accused intends to raise a defence o f alibi". The above position applies even in the present case to the extent that, the prosecution knew that the appellant was questioning about the identification done by PW1. Since they failed to lead PW1 during examination in chief to establish how she knew the appellant before the incident as alleged, her claim in cross examination that she used to see him in town is an afterthought. They ought to have at least called the neighbour who was the first person to be told about the incident by PW1. This could at least shed some light on whether she described him to the said neighbour and/or unveil what exactly she told him. Failure to produce such a very material witness who could cover the missing gaps in the appellant's identification affects the credibility of her evidence - 10

see: Anord Mtuluva v. Republic [2022] T7CA 696 (9 November, 2022, TANZLII). By way of emphasis, we wish to observe further that,since PW1 claimed that she identified the appellant, she ought to havedescribed him to PW2, to whom she reported the incident. A part from mentioning his name, nothing on the record suggests that she described him to PW2. In his testimony, PW2 had this to say at page 8 of the record of appeal: "When I interrogated her, she said she was raped by Jero Essau she knows him. I know Jero Essau, as he lives at Igurusi he had once accused o f other cases there at police". [Emphasis added] The excerpt above, particularly as regards to who raped PW1, is a replica of what PW1 said in her testimony. She had nothing more to say about the appellant rather than mentioning his name. This piece of evidence is highly suspicious. In Taiko Lengei v. Republic, Criminal Appeal No. 134 of 2013 (unreported) quoted in Samwel Kivike (supra), the Court made an observation which guided us in our reasoning as follows: li

" 'Indeed, the failure by the said prosecution witnesses to make the description o f the appellant at the earliest opportunity to PW3 or other persons renders their assertion o f having identified the appellant at the scene o f crime highly suspect, implausible and has left grave doubts in the credibility o f the two witnesses". In the present case, credibility of PW1 is at stake. Whether she really knew the appellant before the incident and recognized him at the scene of crime remains to be a nightmare. It ended up curtailing the appellant's freedom as he is now serving imprisonment sentence. At any stretch of imagination, even if for the sake of argument, PW1 had known the appellant, the same way as PW2 who said that, the appellant was once accused of other cases, his previous criminal record could not be acted upon as a proof that he was the one who entered PWl's room on the material day and committed rape. We say so because PWl's answer during cross-examination that "I always see you in the streets" has an element suggesting that, the appellant was a street man which connotes the criminal character stated by PW2. We think, we have exhaustively discussed and analysed the issue we have raised regarding the alleged identification done by PW1 at the scene of crime. We entertain no doubt that the same did not eliminate all 12

the possibilities of mistaken identity. We may, as well, add before we conclude that the dock identification done by PW1 at the trial added no value to the prosecution case, particularly on her credibility. As such, for it to have value, it ought to be preceded by description of an accused person and identification parade as we stated in Samwel Kivuke (supra) that: "Dock identification is worthless (the court should not rely on dock identification) unless this had been preceded by a properly conducted identification parade. A witness should be asked to give a description o f the accused and the prosecution should then arrange a fair identification parade". The above extract presupposes that the identifying witness identifies an accused person whom he/she is not familiar with. But in the present case, PW1 purported to know the appellant even before the incident. In the circumstances, there was no need of dock identification. We are alive to the principle that as second appellate court, we are not entitled to interfere with concurrent fact findings of the courts below unless there is misapprehension of facts or wrong interpretation of a principle of law - see: Mohamed Said v. Republic [2019] TZCA 252 (23 August 2019). We are satisfied that the courts below did not 13

evaluate the evidence on record properly otherwise they could have found that, the identification of the appellant at the scene of crime by PW1 was not watertight. Having said so, we find merit in the appellant's first complaint and hold that he was not properly identified at the scene of crime. That being the position, we do not see the need to determine other complaints raised by the appellant. Consequently, we allow the appeal, quash conviction and set aside the appellant's 30 years imprisonment sentence. We hereby order the appellant to be released forthwith from prison unless otherwise lawfully held. DATED at MBEYA this 7th day of November, 2024. M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 7th day of November, 2024 in the presence of the appellant in person/unrepresented and Mr. Augustino Magesa, learned State Attorney for the Respondent/Republic, is hereby