19750228 TZHC Arusha 1

IN T HE HIGH COURT OF TANZANIA ATARUSHA APPELLATE JURISDICTION. HIGH COURT CRIMINAL APPEAL NO, 205 OP 1974 • ORIGINAL CRIMI111 CASE N0 365 OP. 1973 • OF THE DISTRICT COURT OF:AAUSKA DISTRICT P ARUSHI BEPORE:- J. S. IVINGUTO (MIS Esq., Resident..1YIagist'a.te LEIffATJO NEVASHA ©MOHAMEDI ISSA .... ... .. APPELLANT (.Origitiai, Accused) versus THEREI'UELIC ..............., ....... 1RESPONDENT (Original Prosecutor) p JUDGMENT JONATHAN, J. The appellant, LEMATURO NEVASHA alias MOHAMEDI ISSA, was convicted of Rape contrary to section 130 of the Penal Code and sentenced to four years' imprisonment. The complainant, a young girl of 18 years or so 1 was returning hoa after a viit to her sister being escorted by a. young man callec EMANUEL P.W.2 also of the same a.ge, who was the brother-in-law 'of her sister.. Wiile they were walking on a foot-path they would ap3ear to have been stopped by two men. According to these witnesses the accused was one of them. They dragged or carried her to a bush nearby while frightening away P,W.2. All acounts, including the evidence and report of the doctor who examined the complainant on the next day, show that the two men taking turns ravished her thereby causing her to sustain, amonp: other injuries, a vaginal tear from which she bled. There can be no doubt in my view that sh was raped. f.W.2 had in the neantime to gone back to reportthe sister of the complainant.. The father of the complainant had in the meantime become concerned that his daughter had been out for so long and had duly come out accompanied by two elders to find out what had happened to her. He had then met her soon after she had been raped when she reported to bin about the incident. She reported on the next day first to the police where she was given the usual police form "PP 3" and then to the doctor who examined her. It was the prosecution case that the appellant 'was one of the two rapists. The appeal is to be decided on whether the appellant and P.W.2 were sufficiently favourably placed to identify the culprits. The complainant said she knew the appellant as being a person living some two miles away. Now, the appellant was not arrested until about nine or ten months later and that only in connection with a house breaking offence. It then occurred to the Police that he was wanted. for this offence also. It is not clear, therefore, why the arrest was not male earlier if the complainant knew his nar;e and where he lived as she claims. Indeed in her report to the investigating police officer she does not seem to hve mentioned the names of the appellant and the other man although she says in her evidence that she knew their names. -/ —2- The learned Resident Magistrate in her judgment observed that it was not dark when the incident occurred and that, therefore, the two eye witnesses wore in a position to identify the two men. The, girl gave the time as 6.00 p.m. while the boy, P.W.2 9 said it was at about 7.00 o'clock. It is hird to Say whether at that time it was dark or not but it'is of some a'sistsnce to know from the accoutit of the complainant that she sa ic1. it was. not very dark when she met her father. From this it would appear darkness had set in. That th'±s' was so is confirmor by other factors.' Firstly, according to the complainant, apart from the two rapists thexe were: several other people. 'To ië her own words, "it waâ•a big group of 'them", St'ikingly, however ;, Emanuel in his evidence said there was .eobody else apart' from one individual who happened to pess'.y when the. 'girl was being carried away and who, like him, was frightened away by the two people. In the face 'of such a sharp conflict I can only presume that there was. no sufficient liht for the,, witnesses to' observe cloarlj. . Secondly, as already noted, the father of the complainant felt that she had been out for too long' and that he should look for her accompanIed by, some other people. From facts as 'these, one 'might presu'rp' it was dark. Therd'is consierable doubt, thorofor, if'it was possible for the eye witnesses to be clear that they. . identified the culprits, This would have been a proper case for holding en 'identification parade which was, however, lacking. All considered, I find it unfe to allow the convictibn to stand. and it is,, hereby set aside 'together with the senence. The.app.ellant'should be ,rdleased if there is no ot'he± lawful ground for dtaining him. Delivered" in Odurt at I..rusha this 28th day of February, 1975.' ' h'. 'Mwipoo for the Rpublic. Appellant, absent', uorepre.sentd. ,2. /MTPM. ' (F. M. JONATHAN) JUDGE. S