NA TZHC Tanga

- IN THE HIGH COURT OF TANZANIA A:f '.f.,<\NGA [SITING AT KOROGWEJ CRIMINAi. APPFAl NO: 3 OF ?.014 [Originafing from Korogwe District Court af Korogwe in Crirninal Cose •. · No. 47 of 20l3] VICENT BARUTl. .... ~ ........ ~ ........................ ~ ..................... APPELLANT 1/ "' -~ - , ;' ~ ....... .:: ·VERSUS -!- ' ..... -'iH E REPUBLIC ................ ~ .. -........... -. ........•.. :........... ~ ........ RESPONDENT . .JUDGMENT U.MSUY.~ , · · In this appeal, the appellant, Vicent Baruti is challenging both r conviction and sentence. He \-Vas convicted of rape contrary to r sections 130 ( 1) (2) {e) and 131 of the Penal Code [Cap. 16 R.,..E:· 2002]. The particulars of the offence were that ?n 23/02/2013 at · aboul 22.00 hours at Changarawe village, within Korogvve Districl in Tonge Region, the appellant,. carnally knew Saumu Amiri, a girl aged 15 years of age. The evidence which led to the conviction of the appellant was ihat on 23/2/2013 during the night Faturna Abasi [PW2], a guardian 1 of Sau mu Arniri [P\!\' 1], the victim, was at her home chasing goats. P\\12 heard PVvlcrying and ._.,., when Fatuma -Abasi [PW2] looked around.' ,. ·.-'' she sa\v the appellant raping Sau mu Amiri [PW l]. The witness did not i : interrupt but woited u;itil the appellant entered into his house. PW2 con-1rnunicaied .the incident to Mwanaisha ldd [PW3]. The latter . . together with PW2 and the appellant's wife inspected PWl 's private parties and obs~rved. that the victim [PW l] had sperms in per p·Eivate parties. The .incident ~as reporte'a at Mashewa police ~'ta.tion where the victim [PW 1] was issued ·a PF3 and directed to go to hospital for · .exarilinati~n. PW4. S~el~fn6nfSufia8 Kigongo, a medical doctorfrom 1V1ashe~•va Health Centre noted that the victim's private parts were full of blood and spermat,ozoa. The PF3, exhibit ;Pl was produced and tendered to that effect. In her evidence, Saumu Ami.~i [PWl] testified that on the material day the appellant called her, took her to the bush and· undressed her underpants and started to rape her ·and that she identified him because of his voice. Th~ appellant was arrested and taken to Mashewa police station. PW5-f5002DC Mohamed, an investigator from Mashewa police station invest1gated the matter,, charged and arraigned the appellant in Korogwe District Gourt: ... After fuli trial, the appellant was found guilty, convicted and sentenced to 30 ye.ors imprisonment and six strokes of C<?rporal punishment. · Dissatisfied with both conviction and sentence the appellant preferred the present appeal. Essentially, the appellant complains 2 / .........-~?..;.,~~.:...:.. ... - - ,d_:____ " . :t ;-. that he was · improperly identified at the s-cene of cnme and therefore that the cas,e was not proved against him beyond :':'':: reasonable doubt. · At the hearing of this appeal, ihe appellant oppeofed in person, unrepresented whereas the Republ-ic was represented by Mr. Mfinanga Learned State Attorney. The appellant insisted tha_t he t '.... - . was improperly id~ntifit/d ot the sd:ene of crime and there·fore u;ged the court to aliow his appeal. // ~,r' <\·~- - .1 J. ~~· o • In his rebuttal, Mr. Mfinanga learned State Attorney supported the appeai for the reasons· that the appellant was not properly .. identified ot the scene of crime. In advancing his reason, Mr. Mfinanga pointed out that the evidence on record reveals that the appellant was identified with .. the aid of his voice of which Mr. Mfinanga submitted that vqi_ce identification did not eliminate · n,istaken identity. In that regard, Mr. Mfinanga contended that this case was not proved against the appellant and he therefore urged·. ', the Court to qllow the appeal. I ~ As correctly contended by the appellant and supported by Mr. . . . tv'lflnanga, the evidence on record clearly indicates that the incident happened during the night hours i.e 22.00 hours. .In that regard, 1. have carefully read the evidence. on record testifie<? against th~ - - ap·pellant and observed that the incident happened .in the dark and •' no any source of light was mentioned to have aided the witnesses particularly PW 1 and PW2 to identify the appellant. The evidence of 3 . ·r PWl indicates that she identified the appellant by the appellant's voice: In principle, this was a weakest identification. See the case of .,. ·.-'· Stuart Erasto Yakof?o V. R. Criminal Appeal No. 202 of 2004, (unreported). Further to that it was emphasized in the case of . GPrald l. ucas V R. Crlmtnaf Appeal No. 220 of 2002. by the Court of Appeal that:- 1 "For voice identifi'G;ation to be relied upon it m'V,,~ t-: be,. · /. \~ .•., 7 . established that the witness is'very familiar with the voice in I question as being the same voice of a person at the scene. . ;- ... :: J ..._ . ·• . of crime". In the present case, t"he witnesses IPWl ahd PW2] did not adduced evidence in respect of their familiarity lo the appellant. For that matter, their evidence was not watertight against the appellant. From the above analysis, this appeal has merit, Appell a ht' s conviction is quashed and the sentenced imposed against him is set aside. The appellant should be released immediafely from jail unless r ,... he is held for lawful cause. It is so ordered. 4