abdallah yusufu vs republic 2017 tzhc 2206 23 june 2017

IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 13 OF 2014 (Originating from the District Court of KIOMBOI Criminal Case No. 35 of 2010, Hon. K.M. MRISHO, PDM) ABDALLAH YUSUFU.............................................. APPELLANT VERSUS THE REPUBLIC............................................... RESPONDENT JUDG EM ENT 23rd JUNE 2017. Mansoor, J: This appeal arise out of the judgment dated 12™ July, 2011, passed by the District Court of Kiomboi in Criminal Case No. 35 of 2010, by which, the Appellant was convicted of the offence charged of burglary c/s 294 of the Penal Code, Cap 16 R: E 2002 in the first count, the offence of rape c/s 130 (2) and s. 131 of the l Penal Code, Cap 16 R: E 2002, in the second count, and grievous harm c/s 225 of the Penal Code, Cap 16 R:E 2002. The Appellant was found guilty of the offenses charged; he was convicted and sentenced to five years of imprisonment for the First Count, Thirty Years Jail Sentence with Twelve Strokes for the Second Count, and for the Third Count he was sentenced to Five Years Imprisonment. The sentences to run concurrently. The Appellant was granted leave by this Court to file Notice of Appeal and Appeal out of time by a Ruling dated 23 April 2014 by Hon Judge C.W Makuru. It was the prosecution case that on 13.06.2010 at about 20.000, the Appellant broke into the house of one Angelina Mkumbo and had sexual intercourse with her without her consent. He also bites her nose thereby causing grievous harm. Angelina Mkumbo testified at trial as PW1, and said she woke up and found her door open, she went to the door with a kibatari lamp, and the accused attacked her, and forced her to have sexual intercourse with him. The accused/appellant managed to run away. She cried and the ten cell leader assisted her to report the incident to the police. The appellant was arrested the same night at his house. PW1 says she identified the appellant since there was a kibatari light. She says she was hospitalized for three weeks trying to fix her nose, but she is now disfigured. PW2, the ten cell leader told the trial court that he went to P W l’s house after he heard her crying, and that PW1 told him that it was the Appellant that had raped her and bitten her nose. The Appellant was convicted based on the evidence of PW1. Mr. Sarara, the State Attorney who appeared for the Respondent opposed the appeal on the ground that there was sufficient identification of the appellant by PW1 because there was enough light and that the victim saw appellant and she managed to recognize him since she knew him before the incident. Advocate Sarara distinguished the holding of the case of Waziri Amani vs. R (1980) TLR page 250, also the case of Masumbuko Charles vs. R, Criminal Appeal No. 39 of 2000, Court of Appeal sitting at Dar es salaam (unreported) in that in the case Waziri Amani, the appellant was acquitted since there was no proper identification, as the source of the light and the distance of the person identified him was not proved but in this case the source of light was mentioned to be that of kibatari lamp and that the victim knew the accused before the incident. I agree with the Appellants arguments PW1 who was the only witness who alleges to have seen the appellant was were able to identify the Appellant as stated in the case of Waziri Amani v. R [1980] TLR 250 at page 252, “in that visual identification is the weakest kind of evidence and the most unreliable, and that Courts should not act on if unless all the possibilities of mistaken identity are eliminated”. It is on record that PW1, the victim, was attacked, it was at night, and witness did not explain the intensity of the kibatari light was. She also did not testify as to whether or not the door to her house was locked, and that the appellant broke it open. PW1 could not prove that there was forcible and violent entry at her premises into and exit from the building. There is a doubt created by PW1 as to whether her door was left open, and if there was forcible and violent entry, whether the appellant or any other person had used the key or he just broke the door using what kind of key or force. PW1 also did not testify she had a chance to interact with the accused before the incident. The victim did not have an opportunity to notice the distinctive features of the accused which would have lend assurance to her testimony in court, Thus, the conviction of the accused, on the basis of sworn testimony of witnesses identifying the appellant without the same being corroborated either by any other evidence, is not enough to hold that the accused was involved in the commission of the offence. PW1 did not sufficiently described and identified the accused leaving doubt in the mind of the court regarding his involvement and the trial Magistrate had erred for basing the conviction without the same being corroborated by any other evidence. PW2 did not see the appellant breaking PW1 's house or even raping her or biting her nose. PW2 evidence cannot be taken into consideration as corroborative evidence regarding the identification of the appellant. Again, the offence of rape was not proved at all as no evidence was presented in court to show that the victim PW1 was medically examined by the doctor, if yes, the doctors report was not presented in court as evidence and the doctor who examined the victim was not examined by the prosecution. In the case of rape, the doctor was material witnesses. The doctor was the one who would have medically examined the victim but no such evidence was presented in trial court, as such; adverse inference has to be drawn. The reason for non-appearance of the doctor or non-presentation of the medical report to substantiate the case of prosecution is unknown. Consequently, and based on the above, this appeal has merit and is allowed; the conviction is quashed and the sentence is set aside. The Appellant is ordered to be released from prison unless his continued confinement is related to other lawful cause. It is ordered accordingly .O -— L. MANSOOR JUDGE 23rd JUNE 2017 Judgement delivered in Court today in the presence of the Appellant, Ms. Nsana, State Attorney for the Respondent Republic and Mr C. A. Chali the Court Clerk. L.^MANSOOR JUDGE 23rd JUNE 2017