20050505 TZCA Mbeya

.. 'l .,. IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LUBUVA, l.A., MUNUO, l.A., And MSOFFE, l.A.) CRIMINAL APPEAL NO. 237 OF 2004 DUDA NDUGALI ......................................................... APPELLANT VERSUS THE REPUBLIC ....................................................... RESPONDENT {Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Mackanja, l.) dated the 2 nd day of December, 2002 in CDC) Criminal Appeal No. 139 of 2000 JUDGMENT OF THE COURT MSOFFE, J.A.: In the District Court of Mbeya the appellant was convicted of Rape c/s 130 of the Penal Code. He was sentenced to twenty five years imprisonment with corporal punishment of ten strokes of the cane. He was also ordered to pay a sum of shs. 20,000/= to Grace Simon as compensation for injuries sustained as a result of the rape in question. He appealed to the High Court of Tanzania at Mbeya. The appeal was dismissed, hence this second appeal. The appellant appeared in person. On the other hand Mr. . -· Boniface, learn'elFState "Attorney, appearep 9nd resisted the appeal .,.,·\'-· -----.- on behalf of the res·ponhent Republic. I •.., • ... ' I\ 2 The facts of the case may be stated very briefly. On 1/7/98 at about 8.00 p.m. the complainant, PW1 Grace Simon, was on her way to her sister's house where she was sent by her mother to get a drum of water. She was alone. The appellant who was following her _caught up with her, fell her on the ground and undressed her by force. He then undressed himself and proceeded to have sexual intercourse with PW1 without her consent. The complainant screamed for help. PW2 Sekretari Sukari heard the alarm and quickly responded. On arrival at the scene, he saw the appellant ravishing the complainant. The appellant managed to flee from the scene. He was, however, apprehended on that same night. In his brief defence, the appellant denied committing the offence in question. He raised the defence of an alibi that on the date and time in issue he was sleeping at his house. In its judgment the trial District Court accorded no weight to the defence of alibi because no notice and particulars were given in terms of s. 194 (4) and (5) of The Criminal Procedure Act, 1985. The appellant filed a petition of appeal with three grounds. All the grounds centre on one major point:- That there was no enough evidence of identification. In the appellant's view thereof, the courts 3 below failed to address themselves to the crucial aspect of identification. Also, according to him, since the incident took place at night there was a possibility of mistaken identity. On his part Mr. Boniface made a brief and forceful submission. In his view, the appellant was identified on that fateful night. PW1 and PW2 knew the appellant before that date. PWl saw the appellant following her from behind. He undressed her by force. He then undressed himself. Thereafter he had sexual intercourse with PWl. PW2 came to her rescue and saw the appellant in flagrante de/icto. According to Mr. Boniface, although no specific time was stated the above chain of events show that the appellant spent a considerable amount of time with PWl. Hence the appellant was sufficiently identified on that fateful night, Mr. Boniface concluded. Admittedly the case was decided on credibility of witnesses which is a question of fact. The courts below found that PWl and PW2 were credible in their evidence of identification of the appellant. It is now settled principle of law that an appellate court will not interfere with findings of fact by the trial court and first appellate court unless the findings of fact are perverse or demonstrably wrong. 4 See for instance, Mohamed Msero v. Republic (1993) TLR 290 and Shantilal Maneklal Ruwala v. R (1957) EA 570. The crucial issue in this appeal is whether there is sufficient material upon which this Court could fault the findings of fact by the courts below. Without hesitation, we are of the view that the appellant was identified on that night. As correctly observed by Mr. Boniface, PW1 and PW2 knew the appellant before that date. They were neighbours in the village. The chain of events, as shown in the above facts and repeated by Mr. Boniface, show that PW1 spent a considerable period of time with the appellant. In the circumstances, we are satisfied that PW1 could not have mistaken the appellant. We are aware that in line with this Court's decision in the case of WazirV Amani v. R. (1980) TLR 250 in a case depending on visual identification all possibilities of mistaken identity · have to be I' '- eliminated before grounding a conviction. In the instant case we are satisfied that possibilities of mistaken identity were eliminated by the fact that the complainant knew the appellant quite well before the date of incident and also in view of the other fact that the incident took a fairly long period of time in which there could hardly be a · possibility of mistaken identity. At any rate, the issue of identification ' ,. 5 came as an afterthought because the appellant did not raise it at the trial. Thus there will be nothing to fault the courts below in their concurrent findings of fact. Mr. Boniface has drawn our attention to the sentence of imprisonment meted on the appellant. He has accordingly asked us to enhance it to one of thirty years in line with the relevant provisions of Act No. 4 of 1998. It will be noted that although the judgment of the High Court shows that the appellant was sentenced to twenty years imprisonment the trial court record is clear that the sentence meted was one of twenty five years. The sentence of twenty five years was, no doubt, illegal in the light of the provisions of s. 130 (1} (e) of the Penal Code as amended by s. 5 of the Sexual Offences Special Provisions Act 4/98. There is no dispute that PWl was aged 15 years at the time of the offence. There is also no dispute that the offence was committed on 1/7/98 i.e. on the same date Act 4/98 came into effect. Therefore, in terms of s. 130 (1) (e) and s. 131 (1) of the Penal Code as amended by Act 4/98 the appellant ought to have been sentenced to a term of not less than thirty years imprisonment. ~: f. \,- •· ,fl J •,I .i ' 6 In the result, we dismiss the appeal, set aside the sentence of twenty five years imprisonment and substitute thereof a sentence of thirty years imprisonment. DATED at MBEYA this 5th day of May, 2005. D.Z. LUBUVA JUSTICE OF APPEAL E.N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original. (S. A.• -~ ~URA) . SENIOR ~~iv:EGISTRAR