Patrick Sawatele vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL APPEAL NO. 14257 OF 2024 REFERENCE NO. 202405272000014257 (ArisingOriginalCriminalCaseNo.84/2022fromtheDistrictCourtofSumbawangaat Sumbawanga) PATRICK S/O SAWATELE..........................................................1st APPELLANT MICHAEL PASCAL @ PALAZONI............................................... 2nd APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT MWENEMPAZI, J: The appellants were arraigned in the District Court of Sumbawanga for the offence of Gang Rape contrary to section 130(1) and (2) and 131A (1) and (2) of the Penal Code. [Cap.16 R.E.2019]. It was alleged by the prosecution that on the appellant herein being the 2nd and 3rd accused person and another one Alphonce S/O Julius @Mwenakwao @ALU on 26th 1 day of September, 2021 at Majengo Village within Sumbawanga Municipality in Rukwa Region jointly and together did have unlawful sexual intercourse with one ‘XX’ a girl aged seventeen (17) years old. Upon hearing of the of the case, the trial court found the accused are guilty to the charge and accordingly, convicted them with the offence as charged. The 1st accused was sentenced to be given ten (10 ) strokes in the buttocks and the 2nd and 3rd convict was sentenced to serve a life imprisonment. Furthermore, the trial court ordered each of them, 1st, 2nd and 3rd convict to Pay compensation to the victim to the tune of TZS 500, 000/=. The 2nd and 3rd convict are aggrieved by the conviction and sentence hence this appeal. The appellants have filed five grounds of appeal as follows: 1.That,theprosecutionfailedtoprovethechargeagainstthe appelantsasrequiredbylaw. 2.That,thetrialcourterredbothinconvictingandsentencing theappelantsrelyingontheevidencewhichwasadducedby PW1(thevictim)whiletheprosecutionfailedtoca ltheyoung 2 boywhoalegedtohavebeenwiththevictimatthetimeof incident. 3.Thatthetrialmagistrateerredinlawpointandfacttoconvict and sentence the appelants relying on the prosecution evidencewhilehefailedtonotethatthesourceoflightused toidentifytheappelantsatthesceneofthecrimewasso poorwhichcannotenable(aperson)toidentifythepeople sinceitwasamidnight. 4.That the trial court totaly erred in law point and fact by convictingandsentencingtheappe lantsbasingontheexhibit P1 and P2(caution statement of the appelants) while mis observed that the said caution statement was recorded ilegalyanditwasmadeinvoluntarily. 5.Thatthedefenceevidencewhichadducedbytheappelants wasnotconsidered. At the hearing the appellants were not represented and the respondent was being represented by Mr. Mathias Joseph and Ms. Maura Twelve, learned State Attorneys. The appellants in their brief submission prayed this court to consider the grounds of appeal contained in the Petition of 3 Appeal and that this court should not hesitate to allow the appeal and released them so that they may go back home to take care of their respective families. On behalf of the respondent, Mr. Mathias Joseph - State Attorney submitted that this appeal emanates from Criminal Case No. 84 of 2022 where the accused were convicted with the offence of gang rape contrary to section 130(1) & (2) (c) and section 131 (1) of Penal Code,[Cap. 16 R.E.2019] and sentenced to serve a term of life imprisonment in prison for the 2nd and 3rd convict(the 1st and 2nd appellant herein) and ten(10) strokes of the cane on the buttocks for the 1st convict who is not a party in this appeal. The respondent after going through the whole appeal are supporting this appeal on ground four (4) and first (1). The charges show the event occurred at night. The whole evidence leans on visual identification. There is plethora of authorities for the position that visual identification evidence must be utilized with caution guarding against possible mistake identity. 4 In the case of Daniel s/o Paulo @ Meja Vs. Republic, Criminal Appeal No. 307 of 2016, Court of Appeal of Tanzania ta Arusha at page 7: ” It is a trite law that evidence of identification is of weakestkindandunreliable,suchasthesameshould not be allowed....” The event occurred at night. The victim testified that the suspects were wearing masks. The victim does not state to know them before. The victim did not describe the details of the suspects. The suspects entered with torchs on. However, testimony by the victim does not show the intensity of the light; whether it was intense enough to be able to identify the assailants. The learned State Attorney invited this court to refer the case of Magwisha Mzee and Shija Paulo Vs. Republic, Criminal Appeal No. 465 and 467 of 2007, Court of Appeal of Tanzania (Tabora) at page 14 the court held that: “Mere statement that there was light is not enough. Theremustbeproperidentificationoftheintensityof thelightrelieduponbythewitnesstopositivelyidentify 5 the accused person, mere assertation that there was lightwilnotsuffice”. If we compare the position to our case, the witness did not state the intensity of light. If we remove the victim’s evidence, given the nature of our case the best evidence is that of the witness. We cannot have a valid case without the evidence by victim. Identification in this case was not satisfactory. Also, failure to call the boy who was with the victim raises doubt. That has reduced strength of the story of the victim which deprives it with the necessary corroboration. Based on submission the counsel submitted that they are supporting the appeal. In the case of Selemani Makumba vs. The Republic [2006] T.L.R 379 it was decided that ‘thebestevidenceofrapecomesfromthevictim herself Also, in the case of Godi Kasenegala v. Republic, Criminal AppealNo.10of2008(unreported) the Court held that: "...the proof of rape comes from the prosecutrix herself and other witnesses if the never actualywitnessed theincident, suchasdoctors,maygivecorroborativeevidence.” 6 In this appeal, the victim at the trial testified that on the night of 26/9/2022 she was sleeping with her cousin. She heard a heavy noise, one heavy stone was put on her door, the curtain was open and three people entered with the knives. The mobile phone light was switched on. Then she managed to see them. One of them did catch the male child, she tried to stop them. They attempted to undress her. She resisted and another one caught her. He told her to undress herself. She resisted and he attacked her with the knife. The other one was wearing mask. She managed to identify them. They dressed in normal clothes. The third has a mask. He did undress her and she identified. All of them. She testified: “Iidentifiedthe1st accusedand2nd accusedpersonand3rd accused person did start to rape me then the 2nd accused person was the 2nd to rape me and then they went to the sittingroom.Thetalk(ed)forawhile.Thedidcalme,the3rd accusedpersondidthreatenmewiththeknifeandtoldmeto sleep. Then he did rape me for the second accused person(sic).” The passage I have just quoted is the most relevant for the evidence on identification. The way the testimony is, it is difficult to say for sure there 7 was any positive identification of the culprit. In the case of Godfrey Lusian Shirma vs Republic (Criminal Appeal 40 of2021) [2022] TZCA 584 (29 September 2022) the Court considered the issue of identification at the scene of crime. The Court held that: “In many nstances, th s court has stated the legal pr nc plesgovern ngtheev denceofv sual dent f cat on.These nclude; one,suchev dence softheweakestkndandmost unrel ableandshouldbeacteduponcaut ouslyafterthecourt ssat sfedthattheev dence swatertight,andalposs b l t es ofm staken dent tyareel m nated. Two,even f t sev dence ofrecogn t onthatev dencemustbewatertight.Inthatregard, wheretheoffence scomm ttedatn ght,andthequest onof lght s n ssue,theremustbeclearev denceastothe ntens ty ofthesa dlghtandthatbareassert on,wouldnotdo, Three, nmattersof dent f cat on,cond t onsfor dent f cat onalone, however dealtheymayappeararenoguaranteefortruthful ev dence.” The victim in this case testified that it was night and the assailants were wearing masks. She identified them using torch light being held by the 8 culprit. Obviously, the light was directed to her. The question is whether she was not blinded by the light directed to her eyes. There is doubt that the identification was such accurate as to do away with the mistaken identity. Although there is evidence of the exhibits P1, P2 and P3 which were tendered by PW3. However, the defendants objected to their tendering. In the case of Hemed Abdallah V Republic [1995] T.L.R. 172 (CA) ”Itistritelawthatgeneralyitisdangeroustoactupona repudiatedorretractedconfessionunlessitiscorroboratedin materialparticularorunlessthecourtafterfulconsideration ofthecircumstancesis satisfiedthattheconfessioncannot butbetrue.” In this case the defendants objected to the admission of the caution statements in which it alleged they admitted to have committed the offence. When the objection is considered together with the accused persons defence it is clear that nothing plausible can be discerned to understand and gauge the veracity of the contents of the caution 9 statement as to carry the evidence worthy to convict the appellants based solely on their caution statements. Under the circumstance, I am satisfied that there was no sufficient proof of the offence the accused are charged with such that this appeal is meritorious. I therefore agree to the submission by the counsel for the respondent that the appeal deserve to be allowed. I therefore allow the appeal, quash judgment and conviction by the trial court and set aside the sentence meted to the appellant. I order that the appellants should be released forthwith unless they are being held for another lawful cause. It is ordered accordingly. Dated at Sumbawanga this 16th day of December, 2024 T.M.MWENEMPAZI JUDGE 10