19750228 TZHC Arusha1 1

IN THTE HIGH COURT OF TANZANIA AT ARUSHA APPELLATEJURISDICTIOP HIGH COURT CRIMINAL .LLPrEAL IO. 205 OF 1974 ORIGItAL CRIMif AL CASE NO. 365 OF 1973 OF THE DISTRICT COURT OF ARUSHA DISTRICT AT JIRUSHA, BEFORE:- J. S. I\TGUTO (MISS) Esq., Resident Magistrate LEMLPURO NEVLSHA MOHAMEDI ISSA ........i., APPELLANT (Original. Accu.sed) versus THE REPUBLIC ........ ....... . ,......; RESPONDENT (Original Prosecutor) I. JUDGMENT JONATHAN, •J. The appellant, LEMiTURO NEVASHL alias MOHAMEDI ISSA, was convicted of nape contrary to sectipn 130 of the Penal Code and sentenced to four years' imprisonments The complainant, a young girl of 18 years or so, wa returning home after a. visit to her sister being escorted by a. young man called EMANUEL P.W2 also of the same agej who was the brother-in-law of her sister. Wi1e they were walking on a foot-path they..would appear to have been stopped • by two rnen According to these witnesses the accused was one of them. They dragged or carried her to a bush nearby while frighten-ing away P.W..2. All accounts, inc1iding the evidence and report of the doctor who examined the complainant on the next clay, show that the two men taking.turs raished her thereby causing her to sustain, aoQng other injuries, • avaginal tear from which she b1ed There can he no doubt in my view that sh ws raped. P.W.2 had in the meantime tO gone back to report/the sister of the comp1ainant: The father of the complainant h&d. in the meantie become concerned thEt his daughter had been out for so long and had duly come out accompanied by tw elders to find out what had • . happend.to her. He had then mt her soon after she had • been rape.d when she reported to •him about the incident. She •reported on the next day first to the police where she was :given the usual police form UPF and then to the doctor who examined her. It was the prosecution case that the appellant was one of the two rapist.s The appeal is to be decided on whether the appellant. and r.W.2 were sufficiently favourably placed to identify the cu1prts. 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 he arrest was not male ear]4er if the complainant knew his na.r;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 ndhe. other roan although she says inher evidence that she knew their names. .•/ 4 -2-.- The learned Resident Magistrate in her judgment observed that it was not dark when the incident occurred anc2 that, therefore, the two eye witnesses were in a position to identify the two mn. The girl gave the time as 6.00 p.m. while the boy,, ?.W., said it was at about 7:.00 o'clock. it is hard to say whether at that time itwas dark •or not but it is of some assistance to knowfrorr the accouit of the complaiian'tthat she said it 'was not very dark when she met her father,. From this it woulç appear darkness had set in. That this wäs' so is confirmed by other factors. Firstly, acco'ding to -the conplairant, apart from the two rapists there were several ether peopie. To use her.own'words "it was a big group of th" Stringly, Ta'wver, Eaanucl in his evidence said toe-re was 0000dy else apart from one individual who happened to pass'.y when the girl was being carried away and who, like him, was frightened sway by th two people. In the face of ouch a sharp conflict I can only presume that there was no sufficient liht for the witnesses to observe clearly. Secondly 9 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 presume it was dark There is considerable doubt, therefore, if i, was possible for the eye witnesses, to be clear that they identified the culprits. This would have been a proper ease for holding an identification parade which wasi however, lacking. 1,11 considered, I ±incJ it ursaf.o to allow the oonviction to stand, and it ie hereby set aside together with the sentnce The pellant should be released, if there 1s no other lawful, ground for detaining him.. ' Delivered in Coubt et Lrusha this 28th day of February, 1975. Mr. Mwipopo for the Republic. Appllant absent, unrerresented. M. J0NJ.TiiLN) JUDG-E,