Duma Ilindilo Pangalasi vs Republic (Criminal Appeal No. 476 of 2021) [2024] TZCA 990 (28 October 2024)

IN THE COURT OF APPEAL OF TANZANIA ATMBEYA ( CORAM: LEVIRA, 3.A., MAIGE, J.A. And MASOUD. 3.A.) CRIMINAL APPEAL NO. 476 OF 2021 DUMA ILINDILO PANGALASI ......................................................... APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Nqunvale. J.^ dated the 15th day of September, 2022 in Criminal Sessions Case No. 117 of 2022 JUDGMENT OF THE COURT 23th & 2ffh October, 2024 MASOUD. J.A.: The appellant was charged with and convicted of the offence of sodomising an 8-year-old boy (the victim) on 7th November, 2016 contrary to section 154 (1) (a) (2) of the Penal Code, Cap. 16. He was, as a result, sentenced by the District Court of Momba at Chapwa (the trial court) to serve a term of life imprisonment. The evidence led by the prosecution and which grounded the conviction came from four witnesses. They were the victim (PW1), the victim's father, namely, Moris Thadeo (PW2), one Stanley Samson Simbeye, a worker at Kamsamba Dispensary (PW3), and No. 5323 Detective SGT Sinai (PW4). i

The substance of the evidence was that PW1 was sodomised on 7th November, 2016 by the appellant as he was on his way home from school at around 11:00 hours. The incident took place in the forest which is about four miles away from the victim's home. The appellant who was then grazing cattle in the forest as PW1 was passing by, ordered the victim to stop. As the victim was afraid of the appellant, he chose to run away, only to fall down after being hit with a stick which was thrown to him by the appellant. The victim was then held and ordered to undress by the appellant before the latter embarked on sodomising him. After the appellant was done with his lustful desire, the victim rushed home where he arrived at around 16:00 hrs and reported the incident to his father (PW2), naming the assailant as a Sukuma guy. PW2 inspected the victim who came all the way naked, informed his follow villagers and thereafter, accompanied by the victim, they rushed to the crime scene, about four miles away to look for the Sukuma guy. Accordingly, the appellant was found by the search party and identified by PW1 as the Sukuma guy responsible for the incident. He was thus arrested and taken to the village office before he was subsequently taken to the Police and the victim was examined at Kamsamba Dispensary and confirmed to have been sodomised. PF3 was completed by PW3 who identified himself as working at the said dispensary and as the one who examined the victim. It was admitted as exhibit P.l to substantiate that the appellant was indeed sodomised. 2

There was not much in the defence evidence of the appellant who denied generally to have committed the offence. More importantly, however, he attributed his arrest in connection to the offence with the footmarks that the search party allegedly followed in the forest which led them to where he was. Aggrieved by the conviction and sentence, the appellant filed his first appeal to the High Court which was however dismissed for lack of merit. Still aggrieved, he lodged his second appeal to this Court challenging the concurrent findings of the two lower courts that found him guilty as charged. He advanced a number of complaints as found in the grounds that were raised by him in his memorandum of appeal lodged on 19th December, 2022 and in his supplementary grounds which were lodged on 15th October, 2024. At the hearing, the appellant was represented by Mr. Peter Kiranga, learned advocate who was assisted by Mr. Essau Sengo, also learned advocate. On the other hand, Mr. Joseph Mwakasege, learned State Attorney, appeared for the respondent Republic. It was clear from what transpired at the hearing, and as agreed upon by all learned counsel, that there was only one issue to be addressed and determined by us, which is whether the prosecution evidence proved the charge beyond reasonable doubt. The counsel for both sides were not at issue that the prosecution did not discharge its burden of proving the charge to the hilt. 3

In relation to the above issue, the overarching complaints were, firstly, that the appellant was not properly identified as the assailant because PW1 did not give any description befitting the appellant as the wrongdoer responsible for the offence; and secondly, that there is an unexplained delay of about 25 days before the appellant was arraigned before the trial court on 2n d December, 2016 having been arrested on 7th November, 2016, which is the same day the offence was committed. Mr. Kiranga's submission on the lack of proper identification of the appellant was hinged on the shortcomings of the prosecution evidence that identified the appellant as the Sukuma guy without more. In fortification, he pointed out that PW1 did not essentially describe the appellant to PW2 as the assailant other than only referring him as a Sukuma guy. Although it is in the evidence of PW2 that the search party of the villagers which was accompanied by PW1 and a village chairman and which, eventually, arrested the appellant some distance away from the crime scene, it was argued, rightly so in our view, that the evidence on the record suggests that the appellant was identified by PW1 after being found and arrested by the search party. To make things worse, neither the village chairman nor any of the villagers that constituted the search party was called to testify as to why and how the appellant was arrested and identified as the assailant, whilst he was only described as the Sukuma guy without any other description befitting him, it was argued. We were on this anomaly invited to draw an inference adverse to the prosecution case for 4

the failure to call such important witnesses. Reliance was in this respect made on the case of Jaffary Ndabita @ Nkolaningwa v. Republic [2018] TZCA 615 (20 February 2018, TANZLII). Although Mr. Mwakasege was initially of the view that the identification was watertight, he quickly changed his stance when his attention was drawn to the evidence of the prosecution which was loud and clear that, PW1 did not give any physical description of the assailant to PW2 and that none of the villagers or the village chairman was called to testify on the arrest and identification of the appellant as the Sukuma guy. On such reflection, Mr. Mwakasega was clear that as the record stands, it cannot be said with certainty that the appellant was the Sukuma guy that PW1 referred to as the area in which the offence was committed was admittedly known to have other people who regularly graze cattle thereon as admitted by PW2 in his re-examination. We have thoroughly well considered the relevant evidence on the record of appeal before us. We are as a result unable to disagree with the submissions of the learned counsel on the absence of proper identification of the appellant by the victim. We are of that view as we are mindful of the evidence that the victim only identified the assailant as a Sukuma guy without more. We say so because upon our further scrutiny of the record, it became clear to us that the description of the outfit that the appellant was allegedly in on the fateful day which the victim gave at the trial was mainly in the nature of dock identification. It was not in the prosecution evidence 5

that such description was part and parcel of what was reported by PW1 to PW2 after he arrived home on the fateful day. There is equally nothing in the evidence showing beyond reasonable doubt that the appellant, whose personal particulars in the charge sheet described him as belonging to the Sukuma tribe, was the Sukuma guy that PW1 referred to as the assailant. Again, it is not in the prosecution evidence that the appellant was either a person known to PW1 or a person that PW1 had seen before. It is, similarly, not in the prosecution evidence on the record of appeal before us that PW1 had ample time to observe and mark his assailant within the period of his encounter with him such that when the appellant was arrested by the search party in the forest, he properly identified him without any possibility of mistaken identity. Even if PW1 had ample time to identify the appellant as he was committing the offence, the record says nothing about the description which enabled the search party to identify and arrest him in the forest ahead of being so identified by PW1. Such important evidence is glaringly missing on the record. The absence of such important evidence together with the subsequent failure of PW1 to give the description of his assailant to PW1 not only tarnish his credibility and dent his visual identification evidence but also point to possibility of a mistaken identity of the appellant as the assailant- see Samwel Kivike v. Republic [2016] TZCA 697 (28 July 2016, TANZLII); and Chacha Jeremiah Murimi and Others v. Republic [2019] TZCA 33 (4 April 2019, TANZLII). In our view, the absence of such 6

evidence reinforces the appellant's evidence that his arrest in connection with the incident was merely based on footmarks that the search party followed in the forest in which pastoralists regularly graze cattle. It is clear also that not only the villagers but also the village chairman was involved in the arrest of the appellant on the fateful day as testified by PW2. However, the prosecution failed to call as a witness the village chairman or any villager who comprised the search party that arrested the appellant and took him to the village office, before he was handed over to the police. We are alive that no specific number of witnesses is required to prove a case, and it is indeed the discretion of the prosecution to call the witnesses which they find most suitable for their case- see Yohanis Msigwa v Republic [1990] T. L. R. 140. However, such discretion on the part of the prosecution must be exercised judicially to advance the cause of justice. In the circumstances of the instant case, we think that if the village chairman was called as a witness, he would have given independent evidence as to the circumstances leading to the arrest and identification of the appellant. The failure to call him without good cause being shown, spoiled the prosecution case which must be resolved in the favour of the appellant. 7

It is on the record that the first appellate judge in his decision paid attention only to the evidence that the victim reported the incident to PW2 and in so doing, he described his assailant as a Sukuma guy once he arrived home. He was also of the view that since the incident took place during the day time, there was no possibility of mistaken identity. In support of his finding, he relied on the case of Marwa Wangiti Mwita and Another v. Republic [2002] T. L. R. 39, and held that there was proper identification of the appellant as the victim mentioned the assailant to PW1 immediately after arriving home as he reported the incident to him. Based on our earlier deliberations and findings, we are satisfied that the finding of the first appellate judge is not supported by the prosecution evidence of visual identification on the record whose weaknesses we have already analysed and pointed out. One thing that we need to add and point out at this juncture is that the first appellate judge was mainly influenced by the fact that the incident occurred during day time. Such a fact, in his considered view, eliminated all possibilities of mistaken identity. On that basis, therefore, the first appellate judge did not go ahead to subject the visual identification evidence of PW1 to a careful scrutiny to eliminate all possibilities of mistaken identity. As we once held in Thabit Dotto v. Republic [2020] TZCA 1868 (24 November 2020, TANZLII), although the incident took place at day time that fact alone would not necessarily be sufficient to eliminate mistaken identification. This is particularly so in the case at hand where the victim did

not give any physical description of the appellant who was neither known to him before, nor was he seen by him before - see Ayubu Zahoro v. Republic, Criminal Appeal No. 177 of 2004 (unreported). That said, we are in agreement with learned counsel for both sides that the evidence of the prosecution side on the record did not establish that the appellant was properly identified as the assailant. We are, therefore, satisfied that the learned judge misdirected himself in the manner in which he dealt with the PWl's evidence of visual identification. We are thus, on the authorities of D.P.P v. Jaffari Mfaume Kawawa [1981] T.L.R 149 and Musa Mwaikunda v. The Republic [2006] T.L.R 387, among many others, entitled, as we hereby do so, to interfere with the concurrent findings of facts by the two lower courts that identified the appellant as the assailant and concluded that the charge laid against him was proved beyond reasonable doubt. As to the complaint on the delay of arraigning the appellant before the trial court which was straight away conceded to by Mr. Mwakasege as raising doubts to the prosecution case, Mr. Sengo invoked the provision of section 32 of the Criminal Procedure Act (CPA) to fortify his submission on the point. In so doing, he argued that the delay which was of a period of about 25 days meant that the appellant was not brought before the trial court as soon as practicable within the requirements of the above provision of the law. 9

To buttress the foregoing submission, reliance was made on the authority of the case of Mashimba Dotto @ Lukubanija v. Republic [2024] TZCA 299 (22 October 2014, TANZLII) where there was an unexplained delay of about six days to take the appellant in that case to the justice of peace which according to this Court amounted to a contravention of section 32(2) of the CPA. We were, likewise, referred to the case of Soma Breki v. Republic [2022] TZCA 785 (8 December 2022, TANZLII) where the appellant who was facing a sexual offence charge was arraigned before the trial court after an unexplained delay of 17 days which the Court found that it established reasonable doubt to the prosecution case. In particular, the Court held that: "While the evidence shows that the appellant was arrested and taken to the police station on 10.12.2017 he was arraigned before the trial court on 27.12.2017. There is an unexplained delay o f 17 days. Considering the fact that the appellant in his defence claimed to have been arrested for different accusations and not for raping PW1 who he claimed was not known by him, the unexplained delay to arraign him before the trial court is another thing that raises doubt on the truthfulness o f the case against him. Unfortunately, no body from the police testified concerning the arrest o f the appellant". 10

Based on the position of this Court in the above authorities, our attention was then drawn to the fact that no reason was assigned by PW4 who testified as the investigator of the case to explain why it took about 25 days from 7th November, 2016 when the appellant was arrested to arraign him before the trial court on 2n d December 2016. We were, for such reason, invited to find that the failure not only prejudiced the appellant who had all along been in the custody as testified by PW4, but also created doubt on the truthfulness of the prosecution case. We move now to determine the complaint on the delayed arraignment of the appellant and whether or not the delay if at all created doubt to the prosecution case. We are very much alive to a number of previous decisions of this Court in which we have had opportunity to pronounce ourselves on similar issues as the one at stake. Apart from the authorities cited to us by the learned counsel for the appellant, we are also aware of other decisions in which the issue was considered and determined based on the circumstances of individual cases- see Jafari Salum @ Kikoti v. Republic [2020] TZCA 221 (13 May 2020, TANZLII); Paulo Machadi v. Republic [2022] TZCA 430 (15 July 2022, TANZLII); Laurent Rajabu v. Republic [2013] TZCA 364 (20 September 2013); and Ramadhan Idd Mchafu v. Republic [2022] TZCA 723 (11 November 2022). In Laurent Rajabu (supra), for instance, the record showed that the incident occurred on 1st November, 2009 and the appellant remained in li

custody until 16th February, 2010 which was about three months and the Court considered it to be a very long time for one to stay in custody without being charged. For such reason, the Court held that the delay in charging the accused in that case was a fatal omission which created doubts on the credence of the prosecution case. On the other hand, in Ramadhan Idd Mchafu (supra) where the delay was of only around eight to nine days, the Court found the period of delay not to be long to cast doubt on the prosecution case. In that case, the appellant was arrested on 23rd April, 2016 and was arraigned in court on 2n d May, 2016. Clearly, what the Court has to consider in the circumstances of each case where the issue is at stake is the reasonableness of the time taken to arraign an accused person in court from the day of his arrest. Such consideration, however, must take into account the requirement that an accused person should as far as is practicable be charged within reasonable time and special circumstances of the very case. Having gone through the record of appeal and the uncontested submission made by Mr. Sengo in the light of the position we took in our previous decisions on the delay to arraign an accused person to court for trial, we noted the fact on the record of appeal before us that, the appellant was arrested and taken to the police on 7th November, 2016. He was, eventually, arraigned before the trial court on 2n d December, 2016 which is after a lapse of about 25 days.

From the evidence of PW4 who testified as a police officer assigned to investigate the case on 1st December, 2016 after the appellant was arrested on 7th November, 2016, it is clear that the appellant remained in the police lockup all along until he was arraigned before the trial court on 2n d December, 2016. In spite of such period of delay of about 25 days, there was no reason assigned by PW4 showing that the period was, in the circumstances of the instant case, one that we can safely say was "as soon as practicab/d' within the dictates of the law. There was equally no indication from the evidence as to when the investigation was completed other than that PW4 was assigned the investigation case file a day before the appellant was arraigned before the trial court. Considering that the appellant was brought to the police on the same day of 7th November, 2016 after the commission of the offence, the unexplained delay to arraign him before the trial court, which is complained of by the appellant and not objected to by the respondent's counsel, raises doubts to the prosecution case. We think, therefore, that the failure amounted to a violation of law and procedure which entitles us to interfere with the concurrent findings of facts by the two lower courts as to culpability of the appellant. In the result, therefore, we find that the evidence of visual identification of PW1 which sought to connect the appellant to the charge laid against him was not watertight. More so, the delayed arraignment of the appellant before the trial court was unreasonable and raises doubts on 13

the prosecution case against the appellant. Consequently, the prosecution case against the appellant was not proved beyond any reasonable doubt. This finding suffices to dispose of the appeal. In the light of the foregoing, we allow the appeal. The appellant's conviction is quashed and the sentence meted out to him is set aside. We, henceforth, order the immediate release of the appellant from prison if he is not otherwise retained for some other lawful cause. DATED at MBEYA this 26th day of October, 2024. The Judgment delivered this 28th day of October, 2024 in the presence of the appellant who also represented by Ms. Jalia Hussein holding brief for Mr. Peter Kiranga and Mr. Essau Sengo, the learned counsels and Mr. Albert Kikuli, learned State Attorney for the M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL Respondent/Republic, is hereby c :opy of the original. E. G. MRANGU T^ \ SENIOR DEPUTY REGISTRAR COURT OF APPEAL