IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DODOMA DISTRICT REGISTRY)

AT DODOMA
DC CRIMINAL APPEAL NO. 59 OF 2021

(Originating from Criminal Case No. 16 of 2019 of the District Court of

Dodoma at Dodoma)

JACKSON MSHUYA.......................................................................... APPELLANT

VERSUS
THE REPUBLIC............................................................................ RESPONDENT

JUDGMENT
07/9/2022 & 19/10/2022

KAGOMBA, J
JACKSON MSHUYA (henceforth "the appellant") is aggrieved by the
decision of the District Court of Dodoma at Dodoma (henceforth "trial Court")
delivered on 05/5/2020, whereby he was convicted for the offence of rape
C/S 130 (1) and (2) (e), as well as 131 (1) of the Penal Code [Cap 16 R.E
2002] (now R.E 2022) (Henceforth "the Penal Code). He was sentenced to
serve thirty (30) years imprisonment. The appellant now seeks this Court to
allow his appeal, quash the conviction and set aside the sentence with an
ultimate goal of regaining his liberty. He also prays for any other relief this
Court may deem just to grant.
In his Petition of Appeal, the appellant has packed ten (10) grounds to
support his appeal. The grounds of appeal are as follows:

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1. That, the learned trial Magistrate erred in law and fact to rely on
cooked evidence adduced by all witnesses for prosecution side.

2. That, if the learned Magistrate had carefully examined the evidence

before him, he could have discovered that there was a very high
possibility for the appellant to be implicated by the case.

3. That, the trial Court erred in law and in fact when acted on the
evidence of the prosecution side which did not prove the offense of
Rape as alleged by the prosecution.

4. That, the trial Court erred in law and in fact by not warning itself
that the evidence of PW5 was weak for the reasons that;

i. There was no evidence from the Hospital management, where

the doctor was working, to prove that the said doctor was
really suffering from mental disease which prevented him
from appearing before the trial Court to testify.

ii. There was no evidence that the PF3 tendered before the trial
Court by the prosecution side was prepared by the doctor who
later suffered from mental illness.
iii. No any other documentary evidence from the Hospital where
the victim was alleged to be hospitalized was tendered in trial

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 Court to show that the victim was hospitalized though the
doctor who attended was suffering from mental illness.

iv. Failure of the prosecution to come up with clear evidence in

respect of the doctor occasioned miscarriage of justice on the
part of the appellant.

5. That, the trial Court erred in law and in fact when it received the
evidence of PW2 against the procedure.

6. That, the trial Court erred in law and in fact when convicted the
appellant basing on contradictory evidence of the prosecution
witnesses;

i. for instance, PW1 addressed the trial Court that the assailant
did run away after the act while PW2 addressed the Court that
the appellant was seen naked together with the victim at the
alleged scene of crime.

ii. Again, PW1 alleged that the assailant held her neck so tight
that she couldn't be able to shout while PW2 addressed the
Court that he heard screams for help is not possible for a
person whose neck was held so tight to raise voice for help.
7. That, the trial Court erred in law and fact when convicted the
appellant while there was no enough evidence evidencing that the

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 appellant was known prior to the incident, a reason why all the
prosecution witnesses based on dock identification which was not
proper as identification parade was required to remove shadow of
doubts on the issue of identification.

8. That, the trial Court erred in law and fact when convicted the
appellant while the prosecution evidence was not corroborated by
the person alleged to arrest the appellant when they were cutting
grasses after being asked to do so, and there was no reason as to
why they were not summoned by the prosecution so as to support
their evidence.

9. That, the trial Court erred in law and fact by not warning itself that
a person can be convicted on the strength of the prosecution case
and not weakness of the defense side.

10. That, the appellant was convicted basing on procedural

irregularities.

Before the trial Court, it was alleged that on 22/12/2018 at Mailimbili

kwa Mwatanu area, within the City of Dodoma, the appellant did have sexual
intercourse with one Zainabu Hassan without her consent. Based on the
evidence of the victim (PW1) and an eye witness PW2 Basili Japesi Nchimbi
that the offence was committed in a broad day light at about 13:00hrs
whereby the accused person was identified and apprehended on the same

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date, the trial Court proceeded to convict the appellant for the offence of
rape as charged and sentenced him, as it did.

On the date of hearing of the appeal, the appellant was unrepresented

while Ms. Sarah Anesius, learned State Attorney, appeared for the
respondent. The appellant, being a lay litigant, prayed the Court to adopt his
Petition of Appeal as his submission to the Court.

Ms. Anesius, for the respondent supported the conviction and

punishment pronounced by the trial Court. She however conceded existence
of some shortfalls in the proceedings and addressed them before tackling
the grounds of appeal.

She confessed that the evidence of PW2- Basili Japesi Nchimbi was
recorded in contravention of section 26 of the Written Laws (Miscellaneous
Amendment) Act No. 2 of 2016 by not promising to state the truth and not
lies. She readily prayed the Court to expunge this testimony.

Ms. Anesius further conceded that Exhibit Pl, a statement by medical

doctor tendered by PW6, contravened the provision of section 34B(l)(e) of
the Evidence Act [Cap 6 R.E 2022]. That, the appellant was not given a copy
of the statement within ten (10) days prior to the tendering of the statement
as required by the law. She prayed the exhibit be expunged too.

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 Replying to the first and second grounds of appeal where the appellant
complains that the case and evidence against him were cooked, Ms. Anesius
submitted that the conviction was heavily supported by prosecution
evidence. Her central argument in this regard was that the appellant having
repelled existence of any quarrels between him and any of the prosecution
witnesses, his claim that the case against him was cooked is but an
afterthought.

Replying to the third ground of appeal where the appellant claimed

that the case against him was not proved, Ms. Anesius fronted the testimony
of PW1, the victim, submitting that the victim proved penetration as per
section 130(4)(a) of the Penal Code. She also referred to the case of
Seleman Mkumba V. R (2006) T.L.R 384 to the effect that the best
evidence in rape cases is that of the victim. The learned State Attorney
further submitted that the testimony of PW1, the victim, was corroborated
by the other witnesses including PW3 and PW4, stating that even though
they did not see the act, but the appellant was seen running away.

On the fourth ground of appeal, where the appellant claims that the
evidence of PW5 was weak as there was no evidence from Hospital
management to prove that the doctor was suffering from mental disease,
Ms. Anesius replied that lack of PF3 and failure to bring evidence from
Hospital management wouldn't negate the proof of the offence, as the victim
was the best witness. She argued that Doctor's evidence or PF3 was for

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corroboration purpose only as the proof of penetration by the victim was

sufficient.

Having prayed the Court to expunge the evidence of PW2, the learned
State Attorney didn't labour on the sixth ground of appeal, regarding
contradictions in the testimonies of PW1 and PW2.

On the seventh ground, where the appellant complained that his

conviction was based on insufficient dock identification, Ms. Anesius replied
that as long as the appellant was arrested on the same day of the incident
and the witnesses saw him running from the scene of crime, his identification
was more than mere dock identification and was sufficient.

Concerning the eighth ground of appeal, where the appellant

complained that he was convicted without the evidence on his arrest being
corroborated and without those alleged to have arrested him being called as
witnesses to bolster prosecution case, Ms. Anesius clung to the argument
that even if the actual person who arrested him was not called to testify,
that would not make the other proof of the offence nugatory. She reckoned
that under section 143 of the Evidence Act no number of witnesses is
required to prove a fact, adding that the witnesses who were called did prove
his arrest.

Ms. Anesius also replied to the ninth and tenth grounds of appeal
whereby the appellant had complained that the trial Court didn't warn itself

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that the appellant was being convicted based on the weakness of his defence
and not the strength of prosecution evidence, and that there were procedural
irregularities. The learned Senior State Attorney replied that the opposite
was true and found that the trial Court directed itself well and therefore the
conviction was proper. Having replied as above, she prayed the Court to
uphold both the conviction and the sentence pronounced by the trial Court.

The appellant was given a chance to rejoin, but stated that he had
nothing to add.

From the above submissions, the issue for determination by this Court
is whether the case against the appellant was proved beyond reasonable
doubt. This being the first appellate Court, it's the duty of this Court to
subject the evidence adduced during trial to a fresh examination as stated
in Ali Abdallah Rajab V. Sada Abdallah Rajab and Others [1994] T.L.R
132, knowing, of course, that the trial Magistrate had a better chance to
assess the witnesses.

In rape cases, prosecution succeeds if there is proof of penetration in

unconsented sex, when the victim is an adult. Of equal importance, the
proceedings and the judgment of the trial Court must show that the offender
was properly identified. I shall revert to these two pillars.

In the outset let me first consider the prayers made by Ms. Anesius,
learned State Attorney, to expunge the testimony of PW2 Basili Japesi

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Nchimbi as well as Exhibit Pl tendered by PW6 WP 8093 PC Zamda. The
latter was recorded in contravention of the provision of section 34B(2)(e) of
the Evidence Act [Cap 6 R.E 2022], PW6 had previously adduced evidence
as PW5 but was recalled to produce the said exhibit Pl, a statement by Dr.
Julias Kessy, the doctor who examined the victim after the alleged incident
because the doctor was sick and unable to adduce evidence. Section 34B(2)
(e) of the Evidence Act, provides:

"(2) A written or electronic statement may only be admissible

under this section-
(e) if none of the other parties, within ten days from
the service of the copy of the statement, serves a
notice on the party proposing or objecting to the statement
being so tendered in evidence". [ Emphasis added]

As submitted by Ms. Anesius, PW6 proceeded to tender the exhibit

straightaway upon being recalled without complying with the above cited
provision of the law. For this reason, the law was, indeed, not contravened.

Regarding the irregularity in taking the testimony of PW2 Basili Japesi

Nchimbi, having known that the witness was a child of tender age, i.e 14
years, the trial court ought to have complied with the provision of S. 127(2)
of the Evidence Act, which requires a child to make a promise that he shall
state the truth and not lies. For these reasons, I grant Ms. Anesius' prayers.
Consequently, the two pieces of evidence, that is, the entire testimony of
PW2 and exhibit Pl are hereby expunged from the trial proceedings of this
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case and shall not be relied upon anymore. Having done so, the key issue
now is whether the remaining evidence can sustain the conviction?

From the testimony of PW1 Zainabu Hassani, the victim, the appellant
took off her under pant and managed to penetrate his manhood into her
vagina. She was later hospitalized with pain and bruises at her vaginal hole.
With this testimony, despite the expunging of the would be exhibit Pl which
is Dr Kessy's statement, the Court could pick guidance from Seleman
Mkumba's case to make a finding that rape was committed against the old
lady (PW1). The evidence on record, particularly PWl's own testimony,
which was corroborated by the evidence of PW3 Winfrida Nasoro, sufficiently
proved that the offence of rape was committed.

However, as I intimated earlier on, for prosecution to succeed, they

are required to prove, at the required standard, not only that PW1 Zainabu
Hassani was raped but also that the perpetrator of the offence is none other
than Jackson Mshuya, the appellant.

I am alive to the fact that there exists a plethora of authorities, the

case of Selemani Makumba v. Republic (supra) being the most
celebrated, consistently holding that true evidence of rape has to come from
the victim. In Godi Kasenegala v Republic, Criminal Appeal No. 10 of
2008, for example, the Court of Appeal stated:

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 "It is now settled law that, the proof of rape comes from the
prosecutrix herself. Other witnesses if they never actually
witnessed the incident, such as doctors, may give, corroborative
evidence".

While, admittedly, the law is settled that the victim is the best witness
in rape cases, not in every case where the victim testifies that an accused
person raped her, the Court shall be bound to convict the person so accused.
There exists another established legal principle that each case must be
decided on its own set of facts and obtaining circumstances. (See Athumani
Rashid vs. Republic (Criminal Appeal 110 of 2012) [2012] TZCA 143 (25
June 2012).

My scrutiny of the evidence on record reveals that the aspect of

identification of the appellant, as the person who committed rape, was not
proved beyond reasonable doubt. I shall demonstrate hereunder.

The only witness who testified on identification of the appellant as the

perpetrator of the offence is PW1 herself and PW3 Winfrida Nassoro.
However, the testimony of PW1, on the aspect of identification of the
appellant, is not without doubts. Firstly, PW1 was 71years old on the date
she testified before the trial Court. Her old age is very material on her ability
to properly identify a person visually. She testified that, as she was picking
vegetables at her garden, the appellant came and slapped her on the face

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and head. She stated in her testimony that the appellant came to her,
without stating how she knew it was the appellant.

PW1 further testified that neighbours were not present. However, she
went further to testify that "they saw the assailant', without mentioning who
the pronoun "they" was referring to. She continued to state that "they
reported to the young guys who were cutting grasses" and they chased him.
From this PWl's testimony, it is not specific who saw and who chased the
assailant. The most doubtful piece of her evidence is where she testified that
it was her first time to see the appellant. Considering her advanced age, the
time taken in the commission of the offence, which appears to be a quickly
done incident, one can not say, with any degree of certainty, that PW1 did
identify her assailant.

Then comes another gap in the prosecution evidence. PW3 who

testified that he was at her shamba when some children told her that
grandmother had been raped, told the trial Court that those boys told her
that the assailant was the one who was running. Based on the information
she was told by those boys, who could have been eye witnesses of the rape,
she decided to chase the said culprit. Her testimony is unfortunately
detached. It could be worthy trusting it if the boys had also testified to that
effect. Without a connecting dot from a witness who saw the assailant
running from the scene of crime, the evidence of PW3 becomes nothing but
hearsay. She was told by the boys about the person who was running. For

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lack of bridging evidence from those boys, her description of the appellant
that he was in a grey shirt and was carrying a bag, becomes immaterial.

PW4 Abrahamani (sic) Juma was not at the crime scene. He is the
victim's neighbour and a community police who found the appellant, already
arrested. PW5 WP 8093 DC Zamda was also involved in the later stage of
the case, way after the incident had occurred. It is for these reasons I find
that the appellant was not properly identified. With such doubtful
identification of the appellant by the prosecution witnesses, it is very unsafe
to confirm the conviction and the sentence pronounced by the trial Court.

For the above stated reasons, I find merit in the seventh ground of
appeal, which is sufficient to dispose of the entire appeal. Indeed, the trial
Court erred in law and fact in convicting the appellant while there was no
enough evidence evidencing that the appellant was known prior to the
incident. There appears to be substantial reliance on unreliable dock
identification. Accordingly, I allow the appeal, quash the conviction and set
aside the sentence. Consequently, the appellant is set free forthwith unless
otherwise held for some other lawful cause. Order accordingly.

Dated at Dodoma this 19th day of October, 2022.

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