IN THE COURT OF APPEAL OF TANZANIA

AT TABORA

fCORAM: LILA. J.A.. LEVIRA. 3.A. And MWAMPASHI, J.A.^

CRIMINAL APPEAL NO. 144 OF 2017

MAGANGA S/O UDUGALI................................................................APPELLANT

VERSUS

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

(Appeal from the decision of the High Court of Tanzania, at Tabora)

fMzirav. J.^

dated the 28th day of March, 2007

in
DC. Criminal Appeal No. 104 of 2003

JUDGMENT OF THE COURT

26th October & 3rd November, 2021

MWAMPASHI. 3.A.:

The appellant, Maganga s/o Udugali was arraigned before the District

Court of Nzega at Nzega facing two counts; to wit, rape and being found in

possession of bhang. Upon full trial, he was convicted of both offences and

was sentenced accordingly. He was aggrieved with the convictions and

sentences, hence appealed to the High Court where his appeal partly

succeeded to the extent that the conviction and sentence on the second

count of being found in possession of bhang was quashed and set aside

respectively.

i
 We gathered the above background from the High Court judgment and

from part of the trial court's judgment as the charge sheet was missing from

the record of appeal. Missing too, from the record, was part of the trial court

judgment. Efforts of the High Court Registrar in collaboration with other

stakeholders to trace the missing record following the order of the Court

dated 03.05. 2021, had been to no avail. We thus proceeded with the

hearing of this appeal in the absence of the said record after having sought

and obtained the views of both parties who consented that we should hear

and determine the appeal basing on the available record. For the interest of

justice we proceeded with the hearing and hence the current decision.

It is noteworthy that the statement of the offence of rape which the

appellant was convicted of showed the offence to be contrary to section 131

of the Pena Code as amended and replaced by section 5 (e) and 6 of the

Sexual Offences, Special Provisions Act No. 4/1998. As we have earlier

stated, it was alleged in the particulars of the offence that on 24.07.2002 at

about 20.00 hrs at Nindo village within the District of Nzega in Tabora

Region, the appellant did unlawfully have sexual intercourse with a girl, who

we shall refer to as "the Victim or PW1, who was not his wife and who did

not consent to the act.

 To prove the case against the appellant, the prosecution paraded four

witnesses and tendered one documentary exhibit, to wit, a PF3. On his part,

the appellant was a sole witness for defence.

According to PW1, who testified not under oath and who at the material

time was staying with her grandfather (PW3), on the material night she went

to the appellant's house where the appellant did not only spend the night

with her but he also raped her. PW1 returned home in the following morning

while bleeding from her private parts and reported the incident to her

grandfather (PW3) who called PWl's sister one Lucia John (PW2) to come

and examine PW1. According to PW2, she examined PW1 and observed that

there was blood in her private part. Upon interrogation, PW1 who had on the

previous night disappeared from home, told her that she had spent the night

at the appellant's house. Thereafter PW2 reported the case to the Village

Executive Officer (VEO) and the victim was rushed to the hospital. PW2 did

also witness the appellant being arrested and she tendered a PF3 which was

received in evidence as Exhibit PI without objection from the appellant. It

was lastly testified by PW2 that PW1 was 9 years old.

PWl's grandfather testified as PW3 telling the trial court that on the

night of 24.07.2002, PW1 who was staying with him and who had gone to

watch traditional dance (ngoma) did not return home. PW1 came back home
in the morning crying and when asked where she had spent the night, she

said that she had been at the appellant's house and that the appellant had

raped her. PW3 did also tell the trial court that he saw blood oozing from

PWl's private parts and that the appellant who was arrested on the same

day while watching ngoma is his neighbour. The evidence from the VEO

(PW4) was to the effect that he had been looking for the appellant for

another case of assaulting his wife when the instant case was reported to

him by PW2. He later managed to arrest the appellant and handed him to the

police.

In his affirmed defence the appellant did not deny that PW3 is his

neighbour and that he was arrested while watching ngoma. He however

denied to have raped PW1 and to have spent the night in his house on the

material night. He told the trial court that he had left his house in the

morning to Mwambiti village where he had gone to sell tomatoes and where

he spent the night. The appellant wondered why he was accused of raping

PW1 while there were no grudges between him and PW2 or PW3.

After a full trial, the trial court found it proved that the appellant did not

only spend the night with PW1 but that he also raped her. The trial court did

also find that PWl's evidence that she was raped by the appellant was

corroborated by the evidence from the PF3 and also from PW2 and PW3 who
examined PW1 and saw the blood oozing from her private parts and to whom

the appellant was named. The appellant was accordingly convicted and

sentenced to life imprisonment with twelve strokes of corporal punishment.

As stated earlier, the appellant's appeal to the High Court against the

conviction and sentence on the offence of rape was dismissed. The high

Court upheld the trial court's findings on the offence of rape and found the

appellant's defence that he did not spend the material night in his house not

probable and that the same was not raised in accordance wit section 194 (4)

of the Criminal Procedure Act (Cap. 20 R.E. 2002] (the CPA).

Aggrieved, the appellant has filed this second appeal raising a total of

ten grounds contained in the memorandum of appeal and the supplementary

memorandum filed on 21.11.2017 and 30.04.2021 respectively. Essentially,

the grounds of appeal raise the following seven complaints:

1. That the appellant was convicted on a fatally defective charge

which did not enable him to understand the nature and seriousness
o f the offence he was charged with.
2. That the appellant was not informed and was denied the right to
legal representation.
3. That the PF3 was not read out and that the failure to call the doctor
who issued it denied the appellant his right to cross examination.
4. That the age o f the victim was not proved.

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 5. That the appellant was not properly convicted in terms o f section
312 (1) and (2) o f the CPA.
6. That the identification evidence from PW1 was not watertight
7. That the case against the appellant was not proved beyond
reasonable doubt

At the hearing of the appeal, the appellant appeared in person

unrepresented, whereas the respondent Republic was represented by Ms.

Jane Mandago, learned Senior State Attorney.

When asked to argue his appeal, the appellant chose to let the learned

Senior State Attorney respond to the grounds of appeal first. He however

reserved his right of rejoinder in case the need to do so would arise. It

should perhaps be observed at this very stage that after submissions against

the appeal had been made, the appellant made a brief and general rejoinder

reiterating his denial to have committed the offence. He also insisted that he

did not spend the material night in his house but at the neighbouring village

where he had gone to sell tomatoes. He also claimed that his wife and other

relatives who were staying with him spent the material night in the house.

In her submission against the appeal, Ms. Mandago began by making it

clear that she was not supporting the appeal. On the complaint that the

charge sheet was fatally defective, while it was conceded by her that the

relevant section 130 (1) (2) (e) of the Penal Code was omitted from the
statement of the offence, it was firmly argued by her that the omission was

not fatal. She submitted that the appellant was made to clearly understand

the nature and the seriousness of the offence of rape he was being charged

with from the particulars of the offence and from the evidence that was led

to prove the offence. Ms. Mandago insisted that the ailment did not prejudice

the appellant and that it was curable under section 388 of the CPA. To

cement her argument, Ms. Mandago cited our decision in the case of Masalu

Kayeye v. Republic, Criminal Appeal No. 120 of 2017 (unreported).

On the complaint regarding the propriety or correctness of the charge,

we observe, as also correctly argued by Ms. Mandago, that truly the charging

provisions were not correctly and properly cited in the statement of the

offence. As rightly submitted by Ms. Mandago, since 2002 when the offence

in question was allegedly committed by the appellant, the amendments made

by the SOSPA had already been incorporated in the Penal Code, thus citing

the SOSPA in the statement of the offence was not only improper but it was

also of no use. The more serious omission was however to cite section 131

which merely provides for punishment of rape without citing it alongside the

provision creating and defining the relevant specie of rape the appellant was

being accused committing. Since the rape in question was against a girl of

tender age of below 10 years, the correct citation ought to have been

sections 130 (1), (2) (e) and 131 (3) of the Penal Code.
 The crucial issue arising from the above stated position is however

whether the said above stated ailment regarding the charging provisions,

prejudiced the appellant. Did the defect prevent the appellant from

understanding the nature and the seriousness of the offence he was charged

with?

To begin with, let it be stated that in terms of sections 132 and 135 (a)

of the CPA, every charge must contain a statement of a specific offence or

offences with which the accused is charged. It is also required that the

statement of offence must make reference to the specific provision of the law

creating such offence. Further, the charge must contain particulars of

offence. The reason or aim of the charge to contain the statement and

particulars of offence is to give an accused person reasonable information as

to the nature and seriousness of the offence and to enable him prepare his

defence.

The position where a charge sheet suffers some irregularities is settled.

In the case of Jamali Ally @ Salum v Republic, Criminal Appeal No. 52 of

2017 (unreported) where the Court was faced with the similar scenario

regarding the defective charge, it was held, among other things, that:

"Where particulars o f the offence are dear and

enabled the appellant to fully understand the nature
and seriousness o f the offence for which he was being
tried for, where the particulars o f the offence gave the
 appellant sufficient notice about the date when the
offence was committed, the village where the offence
was committed, the nature o f the offence, the name
o f the victim and her age and where there is evidence
at the trial which is recorded giving detailed account
on how the appellant committed the offence charged
and thus any irregularities over non-citations and
citations o f inapplicable provisions in the statement o f
offence, are curable under section 388 (1) o f the
Criminal Procedure Act, Cap 20 Revised Edition 2002
(the CPA)."

Similarly, in the case of Jafar Salum @ Kikoti v Republic, Criminal

Appeal No. 370 of 2017 (unreported) the Court made the following

observations:

"The position is that the failure in the charge sheet to

cite the definition and punishment sections or to
clarify the ingredients o f the charge under which an
accused person is charged, will be curable under
section 388 (1) o f the CPA if the witnesses remedy
the ailment in their evidence."

Guided by the above settled position, we firstly had to examine the

particulars of the charge laid before the trial court. The said particulars are in

the following form:

9
 "0/7 the 24/7/2002 at about 20.00 hours at Nindo
Village, Nzega District and Tabora region, the accused
did have sexual intercourse with (the Victim) who was
a girl, not his wife and who did not consent to the
a c t"

It is our finding that, as it can be clearly observed from the above

particulars of the offence, the appellant was not only informed the date, time

and place where the offence was committed but he was also fully informed

about the name of the victim and the nature of the offence charged. From

the particulars, the appellant was given sufficient notice about the fact that

the victim was a girl not married to him and that the sexual intercourse in

question was without her consent. As on the age of the victim the evidence

from the victim's sister PW2 found at page 10 of the record of appeal, fully

informed the appellant that the victim was 9 years old. In addition, the victim

herself stated in the presence of the appellant during the voire dire test at

page 8 of the record of appeal that she was 9 years old.

It is from the above findings that we agree with Ms. Mandago and

conclude that the ailments in the charge sheet did not prejudice the appellant

because the same were cured by the particulars of the offence and the

evidence. The appellant was made to fully understand the nature and

seriousness of the offence he was charged with. The defects are curable

10
under section 388 (1) of the CPA and the ground on this complaint is thus

accordingly dismissed.

Next is the applicant's complaint that he was not informed and was

denied his right to legal representation. On this, it was the stand of Ms.

Mandago that section 310 of the CPA merely gives the right for legal

representation and that it does not require that an accused person mut be

informed of the right. It was further contended by her that even the Legal

Aid Act [Cap 21 R.E. 2019] does not mandatorily require that an accused

persons must be informed of that right or that every accused person must be

represented. She therefore prayed for the ground to be dismissed.

Section 310 of the CPA provides as follows:

"Any person, accused before any criminal court, other

than a primary court, may o f right be defended by
an advocate of the High Court subject to the
provisions o f any other written law relating to the
provisions o f professional services by advocate."

[Emphasis added]

As it can be clearly seen from the above reproduced provisions, the

law does not impose to the court the duty to inform an accused person that

he has the right to be defended by an advocate. The law simply provides that

it is a right of an accused person to be defended by an advocate. After all,

every person is presumed to know the law. The appellant cannot therefore
li
be herd complaining that he was not informed of his right to legal

representation. Likewise, he cannot complain that he was denied the right to

legal representation where it is not in the record that he had expressed his

wishes to have legal representation and that the trial court, in any way or

manner, refused or hindered him from enjoying the right.

Further, under section 33(1) of the Legal Aid Act, it is only an eligible

indigent person who after being certified by a presiding magistrate or judge

that he really needs to have such legal aid, who can be entitled to such legal

aid. The two conditions set under section 33 (1) for an accused person to be

eligible to such legal aid are first, that it should be in the interests of justice

for such an accused person to have legal aid in the preparation and conduct

of his defence or appeal, as the case may be, and second, that his means

are insufficient to enable him to obtain legal services. The appellant did not

raise such a request before the trial court and it did not appear to the trial

court that the appellant needed and was entitled to such services. The

appellant cannot, therefore, be heard complaining that he was denied the

right. For the above given reasons, this ground fails as well.

The third ground is on the complaint that the PF3 was not read out and

that the failure by the prosecution to call the doctor who issued the PF3

denied the appellant his right to cross examine the doctor on that PF3. It was
argued by Ms. Mandago on this ground that on page 10 of the record of

appeal, before the PF3 could be admitted in evidence, the appellant was

asked if he had any objection and his answer was that he had no objection.

She further argued that the appellant did also expressly tell the trial court

that he did not wish the doctor who issued the PF3 to be called as a witness.

It was thus argued by Ms. Mandago that the appellant forfeited his rights

given under section 240 (3) of the CPA. Notwithstanding the above

arguments, it was however conceded by Ms. Mandago that the contents of

the PF3 were not read out and therefore that the PF3 should be expunged

from the record. It was, nevertheless, contended by her that even after the

expunction of the PF3, the evidence from PW1 supported by that of PW2 and

PW3 sufficiently proved that rape was committed against PW1.

The complaint on the PF3 should not detain us. As also conceded by

Ms. Mandago, after the PF3 had been admitted in evidence, its contents were

not read out as it is required by the law. Once any document is cleared for

admission and admitted in evidence, it must be readout in court by the

witness tendering it. Failure to do so occasions a serious error amounting to

miscarriage of justice and renders the document liable to expunction from

the record- see Said s/o Salum v. Republic, Criminal Appeal No. 499 of

2016, Sunni Amman Awenda v. Republic, Criminal Appeal No. 393 of

2013, Jumanne Mohamed and 2 Others v. Republic, Criminal Appeal

No. 534 of 2015 and Issa Hassan Uki v. Republic, Criminal Appeal No.

129 of 2017 (all unreported).

Being guided by the above position of the law and since the records

bears out in the instant case that the PF3 was not read out in court, the PF3

is accordingly expunged from the record. Having expunged the PF3 from the

record, discussing other complaints by the appellant connected to the same

PF3 becomes just an academic exercise, which we think, should wait for

another opportune occasion. The third ground therefore succeeds to that

extent.

Turning to the fourth ground of appeal regarding the complaint that

PWl's age was not proved, it was submitted by Ms. Mandago that the age

was proved by PWl's sister (PW2) who is on record at page 10 of the record

of appeal, stating that PW1 was 9 years old. To buttress her argument that

PW's age could be proved by her sister, Ms. Mandago referred us to the case

of Victory Mgenzi @ Mlowe v Republic, Criminal Appeal No. 354 of 2019

(unreported) wherein the Court cited its earlier decision in Issaya Renatus

v Republic, Criminal Appeal No. 542 of 2015 (unreported) where it was

held, among other things, that that proof of age of a victim of a sexual

offence may come from either the victim, or her relative, parent, medical

14
practitioner or by producing a birth certificate. She thus insisted that PWl's

age was proved PW2 and therefore that the ground should be dismissed.

On our part, we entirely agree with Ms. Mandago that the age of PW1

was sufficiently proved by her sister (PW2) who is on record at page 10 of

the record of appeal telling the trial court that her younger sister, PW1 was 9

years old. We have no flicker of doubt that from the evidence of PW2 the

prosecution performed its duty of proving the age of the victim which is one

of the elements required to be proved under section 130 (1) (2) (e) and 131

(3) of the Penal Code. The fourth ground of appeal is thus found not

meritorious and it is accordingly dismissed.

As regards the complaint on the fifth ground of appeal that the

appellant was not convicted in terms of section 312 (1) and (2) of the CPA, it

was argued by Ms. Mandago that according to High Court judgment at page

35 of the record of appeal, the appellant was properly convicted by the trial

court. She contended that the fact that the High Court is silent on that issue

shows that the complaint was not raised before it and therefore that there

was no such a problem. It was also argued by her that even the notice of

appeal lodged in the High Court by the appellant show that the intended

appeal was against the trial court's conviction and sentence. She therefore

prayed for this ground to be dismissed as well.

15
 Regarding the above complaint on the alleged failure by the trial court

to comply with section 312 (1) and (2) of the CPA, it should firstly be pointed

out that, the complaint is connected to the missing part of the trial court

judgment. Secondly, as amply explained at the beginning of this judgment, it

was after the parties, including the appellant, had agreed and urged the

Court to determine the appeal on the basis of the available record and after

we have satisfied ourselves that the appeal could be effectively determined

on the basis of the available record, that we proceeded to hear and

determine the appeal. Though, because of the missing part of the trial court

judgment, we do not have the advantage of personally examining the said

part of the judgment to satisfy ourselves if the requirements under section

312 (1) and (2) of the CPA were met by the trial court, we, as rightly argued

by Ms. Mandago, can, under the circumstances of this case, justifiably rely on

the available record and see whether the law was complied with or not.

Now, basing on the notice of appeal appearing at page 20 of the record

of appeal, which was filed by the appellant in pursuing his appeal before the

High Court, and also from the High Court judgment appearing at page 35 to

42 of the record, we are satisfied that the appellant was properly convicted

and sentenced in accordance with section 312 (1) and (2) of the CPA. At

page 35 of the record the learned High Court Judge is on record stating that

the appellant was convicted of the offence of rape and that he was

16
sentenced to life imprisonment. This is also supported by the relevant notice

of appeal. We also agree with Ms. Mandago that since the alleged complaint

on the contravention of section 312 (1) and (2) of the CPA, was not raised in

the High Court and as the learned High Court judge who we believe had the

access to the complete trial court judgment, did not observe such an ailment

in the said judgement, then the judgment was in compliance of the law. We

thus dismiss this aground for being baseless.

The last two grounds of appeal on PWl's visual identification evidence

and on the complaint that the case against the appellant was not proved

beyond reasonable doubt, essentially raise issues which we think are crucial

in determining the fate of the appeal. On these grounds it was strenuously

argued by Ms. Mandago that the appellant was positively identified by PW1

who did also immediately name him to PW2 and PW3. She submitted that

PW1 well knew the appellant who is her neighbour and that the two spent

the night together. It was argued by Ms. Mandago that although the

evidence on some factors for proper identification as laid down in the famous

case of Waziri Amani v Republic [1980] T.R.L 250, that is, whether there

was light in the house, the source of that light and its intensity, are wanting,

the circumstances of the instant case, show that the appellant was positively

identified by PW1. It was thus argued by her that the case against the
appellant was proved to the hilt and therefore that the appeal should be

dismissed.

As we have alluded to above, the last two grounds of appeal raise the

issue of visual identification. The issue raised is whether PW1 properly

identified the person whom she spent the night with in the appellant's house

and who eventually raped her. Was the evidence given by PW1 watertight to

the extent of leaving no possibilities of mistaken identity? This is the question

we now turn to determine.

Before venturing on the above posed question, we should also put it

clear, at the outset, that we are mindful of the fact that the two lower courts

concurrently found that the evidence from PW1 that it was the appellant who

raped her was strong, credible and reliable. The general rule where there is

concurrent findings of facts by two lower court is that a second appellate

court can rarely interfere with such findings unless there are serious

misdirection, non-direction or misapprehension of the evidence leading to

miscarriage of justice- see Musa Mwaikunda v Republic [2006] T.L.R.

387, Edwin Isdori Elias v. Serikali ya Mapinduzi Zanzibar [2004] T.R.L.

297, Rashid Ramadhani Hamis Mwenda v. Republic, Criminal Appeal

No. 116 of 2008 (unreported).

 Equally important and relevant to the instant case, is a settled law on

visual identification evidence that such evidence is of the weakest kind which

in order to found conviction must be absolutely watertight - see Waziri

Amani (supra). Factors that should be considered in determining whether

visual identification evidence is water tight or not include; the time the

witness had the accused under observation, the distance at which he

observed the accused, the conditions on which such observation occurred, if

it was day or night time, whether there was good or poor lighting at the

scene, whether the witness knew or had seen the accused before.

It is also settled that although relevant and admissible, the eyewitness

visual identification evidence is still of the weakest kind and most unreliable

which should be acted upon with great caution. Before the court can act on

such evidence, it must satisfy itself that the conditions were favourable for a

proper identification. The evidence must be watertight and all possibilities of

mistaken identity must be eliminated. It has to be insisted that the principle

applies even in cases of visual identification by recognition as it is in the

instant case - see Issa s/ Ngara @ Shuka v. Republic, Criminal Appeal

No. 37 of 2005, Magwisha Mzee Shija Paulo v Republic, Criminal Appeal

No. 467 of 2007 and Shamir s/o John v Republic, Criminal Appeal No.

166 of 2004 (all unreported). In Shamir s/o John (supra) the Court cited

the case of Philimon Jumanne Agala @ J4 v. Republic, Criminal Appeal

No. 187 of 2015 (also unreported) in which it was observed, among other

things, that:

"Finally, recognition may be more reliable than

identification o f a stranger, but even when the
witness is purporting to recognise someone whom he
knows, the court should always be aware that
mistakes in recognition o f dose relatives and
friends are sometimes made."
(Emphasis added).

Guided by the above legal principles and pronouncements, we now turn

to the evidence given by PW1 and on other witnesses relevant to the

question of identification including the appellant. Our task is to objectively

evaluate and scrutinise the evidence and satisfy ourselves if the said

evidence is watertight to justify the lower courts concurrent finding that it

was the appellant who raped PW1 or not. We should also let it be known that

as it was found by the two lower courts, the fact that PW1 was raped was

sufficiently proved. We find that the evidence from PW1 supported by that of

PW2 and PW3 leaves no doubt that PW1 was ravished. The only issue which,

as we have posed above, calls for our determination, is whether it was the

appellant who ravished PW1.

Since the determination of the above posed issue to the greater extent

depends on the evidence that was given by PW1, we find it apposite to

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reproduce it in extenso. The relevant evidence appearing at page 9 of the

record of appeal goes as follows:

"/ know the accused person who resides near the

house o f my grandfather where I stay. One day I
went to accused's house and the accused was there.
Then at night the accused slept with me on one bed
till morning and the accused put his penis in my
private part I returned to my grandfather in the
morning. I was bleeding from my private parts and
my grandfather said it. The blood was caused by
accused. That's all."

The above is all what PW1 testified. We observe from that evidence

that PW1 went to the appellant's house on her own. She was not taken there

by the appellant as it was put by the learned High Court Judge in his

judgment. At page 36 and 39 of the record of appeal the learned HighCourt

Judge is on record to the effect that "<9/7 24/7/2002 at around 8.00pm the

victim and the appellant attended a traditional dance performed in the house

o f one o f the neighbours in the village. When the traditional dance was going

on, the appellant lured the victim and took the girl to his house". With due

respect to the learned High Court Judge, the above purported evidence did

not feature in the evidence on record. It appears that the learned Judge was

carried on astray by what was stated by the prosecutor during the

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preliminary hearing at page 5 of the record where the prosecutor is on record

stating thus:

" The accused is a resident o f Nindo village, Nzega

District. On the 24/7/2002 at about 8.00 pm the
accused was watching Ngoma at the house o f
Luswaga and child (victim) aged 10 years was there.
She was residing in the house o f Dulu. The accused
told (victim) that he would escort her to Dulu but he
(accused) took her in his house where he had sexual
intercourse with her, overnight up to 25/7/2002 in the
morning released her."

What was stated by the prosecutor as reproduced above, was not

evidence and it did not come from any of the four prosecution witnesses. The

importation of the same in the High Court judgment was therefore a clear

misapprehension of the evidence on the part of the learned High Court Judge

justifying our interference.

Although we agree with Ms. Mandago that from the evidence on

record there is no dispute that PW1 and the appellant knew each other well

and also that the appellant was named to PW2 and PW3 by PW1, still we find

that when the guidelines on visual identification evidence as set in Waziri

Amani (supra) are applied to the instant case, the evidence given by PW1

that it was the appellant who raped her is not watertight to the required

22
standard. From the evidence given by PW1 the possibilities of mistaken

identity or of someone impersonating the appellant cannot be ruled out

altogether.

First of all, the evidence from PW1 was too brief that it left out a lot of

important issues of facts unexplained. Apart from PW1 not telling if when she

got in the house there was any light let alone its source and intensity, PW1

did also not tell if when she got therein the appellant was alone or not. All

what she said is that when she got at the house the appellant was there. It

should be borne in mind that there is no evidence to the effect that the

appellant was staying alone in the house. Again, PW1 did not tell how

familiar the appellant was to her that she could have recognized him even in

total darkness. It is also surprising why she could not cry out for help while

being raped. The other unanswered question is, if there were other people in

the house, was the house so big comprising many rooms that PW1 could

have sneaked in and spent the night with the appellant and got out in the

morning without being noticed by other occupants of the house? It is very

unfortunate that there are so many crucial facts which needed to be

explained and which signify that the case was poorly investigated, if there

was any investigation, and poorly prosecuted. The above shortcomings in

PWl's evidence demonstrate nothing but the laxity on part of the

23
investigators and the prosecutors. The shortcomings do also render the visual

identification evidence from PW1 not watertight.

We have also observed that, under the circumstances of this case,

though not properly raised, the lower courts ought to have considered the

appellant's persistent defence that he did not spend the material night in his

house. The appellant had stated during the preliminary hearing that he did

not spend the material night in his house. We find that the said appellant's

claim was supported by the evidence from PW4 whose evidence was to the

effect that on the day the rape in question was reported to him by PW2, he

had been looking for the appellant on another different case wherein the

appellant had been accused of assaulting his wife. If PW4 who was the

Village Executive Officer had, previously to the incident in question, been

looking for the appellant, then the appellant's defence that he had not been

around cannot be lightly ruled out. After all, all what an accused is required

to do in his defence is to raise doubts on the evidence of the prosecution

side. We think that the appellant managed to raise such doubts which ought

to have gone to his benefit.

Still on the defence of alibi, section 194 (6) of the CPA requires that the

court should consider the defence even where it is not properly raised, but

that it is in the discretion of the court to accord no weight or disregard the

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defence - see Warwa Wangiti Mwita and Another v. Republic [2002],

Charles Samson v. Republic [1990] T. L.R. 39 and Leonard

Mwanashoka v. Republic, Criminal Appeal No. 226 of 2014 (unreported)

where it was held that:

"The trial courts ought to have considered the

defence o f alibi but had the discretion, on the basis o f
the advanced explanations, to accord no weight or
disregard the same."

As alluded to earlier, the appellant's defence of alibi, which we find was

plausible, was not considered by the two lower courts.

It is therefore our conclusion that there was a misdirection on the law

obtaining to visual identification and misapprehension of the nature and

substance of the prosecution evidence, particularly, on the evidence that it

was the appellant who raped PW1 on the part of the two lower courts. We

think that had the courts below properly directed their minds to the evidence

and the relevant law, they would have not failed to see that there were

possibilities of mistaken identity that PW1 might have been raped by

someone else and not the appellant. Thus, the last two grounds of appeal

have merits and are accordingly allowed.

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 In the upshot, for the above given reasons, we allow the appeal. We

consequently quash the conviction and set aside the sentence imposed on

the appellant. It is also ordered that the appellant be set at liberty forthwith

unless he is otherwise lawfully held.

DATED at TABORA this 3rd day of November, 2021.

S. A. LILA
JUSTICE OF APPEAL

M. C. LEVIRA
JUSTICE OF APPEAL

A. M. MWAMPASHI
JUSTICE OF APPEAL

The Judgment delivered this 3rd day of November, 2021 in the presence of

the Appellant in person and Mr. Deusdedit Rwegira, learned Senior State

Attorney for the Respondent/Republic, is hereby certified as a true copy of

the original.

D. R. LYIMO
DEPUTY REGISTRAR
COURT OF APPEAL

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