Chrispin Another vs Republic DC Criminal Appeal No

IN THE HIGH COURT OF TANZANIA AT MBEYA DCo CRIMINAL APPEAL NO* 105 OF 200*f (Originating from Sumbawanga District Court Criminal Case No® 2^3 of 2003) 1* CHRISPIN MALINGUMU) iiPFELLANTS 2® PASCAL SENDWA ) oooooouooo VERSUS THE RELUBLIC .......... ................. RESPONDENT JUDGMENT MiiCKiiN Jo The appellants were convicted of gang rape c/s 131 (1) 1 (2) of the Penal Code as amended by the Sexual Offences (Special Provisions) Act, 1998o On 10th October, 2003, Leonardia Ksafiri (PW.1) was going to see her brother at Mtowisa v/hen she passed at a bar in which native beer was being soldo When she resumed her journey she met with young men who wanted to know where she was goinge The time was 10„00 p*m# According to this woman the young men wrestled her to the ground, undressed her as they held her by the throat and following which six of them raped her* She testified that there were several young men but she could only recognize the appellants whom she recognized by face only because there was moonlight 0 A careful examination of the record reveals that PW*1 contradicts •herself as to the identity of the men who allegedly raped her. She said in examination-in-chief that she knew the appellants by names and that they were the ones who put questions to her0 V/hen answering questions in cross-examination by the accused persons she said she recognized him by face and by voice* Considering that rape is not a peaceful activity, and considering that the evidence of visual and facial identification contradicts her earlier assertion that she knew the appellants by names, the possibility of mistaken identity becomes very real** Another contradiction relates to the number of people who allegedly raped the complainant« In examination-iri-chief she said six people raped her0 When answering a question put to her by the trial court she said thiss Only two raped me#” So it is either six people who raped her or only two did so* It is significant to note, however, that she concended her testimony by saying that one Felix Nkona (PW.2) found the second appellant rapine the complainant when he went to her aid. PW.2 confirmed this fact, saying he knew him from his birth and there was moonlight. Two other youths stood at the scene when PW .2 arrived, they included the first appellant in relation to whom he said; l8.oo I saw Crispin with my eyes at the area but he was standing*" Both PW.1 and PW.2 testified that those youths threatened to torch PW*2’s house if he gave refuse to the complainant. Cosrnas Kalulu (PWC3) who examined the complainant at Mtowisa Health Centre observed that she had bruises around the neck and that she had male seed in her sexual organ* - Both appellants denied criminal responsibility. The first swore that ho was framed by PW.1 and PW.2 by reason of bad blood between him and them. In fact the second appellant got the shock of his time when he was arrested as he lodged a complaint at the Police Station. According to the record of proceedings the appellants were arrested on 21st October, 2003j which was a period of eleven days from the ccmmiition of the alleged crime. PW.1 stated that the second appellant was net arrested immediately because he fled from the village. No reason was given why the first appellant was not arrested immediately* Another strange feature is why PW«2 did not raise an alarm to summon 5.3?istance from other villagers v-hen* if it is true? he found the second appeUant in flagrante deli etc) and that he threatened to burn down PW#2*s house* This was particularly important because the village has many residents* From these factors the possibility that the charges against the appellants is a baby of an evil conspiracy between PWf1 and PW,2* The iiepublio has declined to support the convictions* Mr. Mwenda, learned State Attorney, has submitted that the complainant *s evidence of facial and visual identification is unreliable, adding that she did not give a description of the appellants' attire0 He made the point that the complainant failed to show how she could recognize only two out six rapistsc I agree5 the appeal would therefore succeed* Die appeal is allowed*. The conviction in respect of each appellant is quashed and the sentence is s^t n.s*i Sach of the appellants is discharged from prison unless further incaceration is justified on some othor legally justified grounds» Delivered* Sgd* Jo M. KACKANJA JUDGE 13/V2005 Appellants: Ab sent Mr 0 Momburi, S©As For D.P.P. Certified true copy of the original*