felician vicent vs republic 2007 tzhc 260 18 october 2007

IN THE HIGH COURT OF TANZANIA AT BUKOBA APPELLATE JURISDICTION H/C CRIMINAL APPEAL NO. 52/2004 ( Originating from Criminal Case No. 294/2003 - Before: M. Paul.,Esq., DM) FELICIAN VICENT......................................................................APPELLANT V/S REPUBLIC.......................................................................... RESPONDENTS 1/08 & 18/10/2007 LYIMO. 3. JUDGMENT. The appellant one Felician Vicent was charged jointly with another person Valence Michael in Karagwe District Court Criminal Case No. 294 of 2003 with Gang rape contrary to Section 130A(1) (2) and 131(1) of the Penal Code as amended by the Sexual Offences Special Provisions Act No 4 of 1998. They were both convicted as charged and were each sentenced to thirty years (30) imprisonment, and each filed an appeal contesting both conviction and sentence. For the purposes of the appeal those separate appeals have been consolidated. The brief facts of the case can be stated an follows:- That the two appellants and the complainant were all residents of Imugakorongo, Karagwe District. The complainant (Pw1), is an elderly lady of the apparent age of thirty-nine (39) years. Pw1 gave evidence that on the 25/11/2003 she went to Kayanga market. That she knows all the accused persons as she used to see them at Omugakorongo locality. After the market, she was heading home and it was about 8.30 p.m. when she was confronted by the two appellants at an area next to Raju godowns. According to Pw1, the first appellant - Felician asked her where she was coming from. Before she could respond, Felician forced her to diverge and to follow another route which goes through surrounding bushes. Further, PW1 informed the Court that as she refused to heed the commands of first appellant, the first appellant started beating her. He slapped her twice, hit her on the upper eye and she fell down. After the had fallen down and as she was struggling to wriggle out of his grip, the second accused then appeared at the scene and got hold of her. It was when the first appellant got time to undress his trousers, and managed to have sexual intercourse by forcibly inserting his penis into her vagina. Pw1 went on to tell the Court that she then shouted for help and that some watchmen who were at Raju godowns came to her rescue. Upon seeing those watchmen the two appellants then took off. One of the watchmen ran after them and in the process managed to arrest the second appellant. After the arrest of the second appellant, he led to the house of the first appellant who was also arrested and together they were taken to Kayanga Police. After reporting to the Police, Pw1 was issued with a PF.3, which she then tendered as Exh. PI. PWJ also tendered in Court a pullover with blood stains, admitted and marked exhibit P2. As it were, after recording the above evidence from Pw1, on 5/4/2004, the prosecution ran into a serious problem of not being able to call the remaining witnesses. The case was adjourned for further hearing on the following dates:- 19/04/2004 30/04/2004 14/04/2004 28/04/2004 11/04/2004 and to 25/06/2004. For each date the prosecutor had no witnesses and did not give reasons for his failure to summon witnesses. When the case came up for hearing on 9/7/2004, as the PP had no witnesses, he prayed to supply statements of the intended witnesses to the defence. On 12/7/2004 when the P.P. was ready to supply those statements, the first appellant objected. He requested for the witnesses to be summoned to testify. However the second appellant did not object. And on 23/07/2004 despite a repeated objection from the first appellant, the prosecutor was allowed to tender two statements - one by Frank Pius and the other by Faustine James as exhibit P3 and P4 collectively. Thereafter the Prosecution closed its case and in one sentence the court held that a prima facie case had been made against the appellants. In his Sworn defence the first appellant denied any involvement. He stated that on the material date he had been drinking local brew and as they were drinking, commotion developed and he had to go home. He had gone into bed when he was awaken and arrested. Further he disputed the Doctor's report PF.3 on the finding of sperms on Pw1 because as he said Pw1 was a married woman. He also challenged the tendering of statements of those people who were not called as witnesses. The second appellant apart from denying involvement also disputed the contents of exhibits P3 and P4 the statements by witnesses who could not be found. The learned trial magistrate having reviewed the evidence of Pw1 and the statements exhibits P3 and P4 found the two appellants guilty as charged, convicted them and sentenced them as indicated. Each of the appellants filed eight grounds of appeal. In a nutshell all of the grounds of appeal can be summed up into three main grounds. These are (1) That the two appellants were not properly identified as the persons who had assaulted and raped Pw1. (2) That the trial magistrate grossly misdirected himself in admitting Exh. P3 and Exh. 4 without calling those witnesses. (3) Failure by trial magistrate to appreciated doctor's report - Exh. PI which casts doubts on the credibility of PW1. In this Appeal I intend to dispose off grounds one and three first as they are rather straight and they call for a brief discussion. Regarding the identification of the appellants, it is common ground that the incident took place at night and that there was moonlight. Apart from merely stating that there was moonlight, Pw1 did not state how intense the light was. Secondly, the witness did not specify how long the incident took and as pointed out by the learned State Attorney the basic conditions stated in the case of WAZIRI AMANI Vs Rep. [1980] TLR 250 regarding identification of suspects under unfavourable conditions were not met. Much as PW1 might have known the appellants as residents of the locality, the possibility of her mistakenly identifying them was not dispelled. The appellants ought to have been given the benefit of doubt, more so after the prosecution had failed to call any of the witnesses to whom PW1 is alleged to have narrated the story. In cases involving identification of suspects, the credibility of the identification and the proprietness of the circumstances favouring identification have to be clearly proved. Turning to the medical report, and as contained in the memorandum of the appeal, both appellants complained that the trial magistrate grossly erred by relying heavily on the fact that Pw1 was found to have sperms. While the second appellant argues that the sperms found on Pw1 were not proven to have originated from him, the first appellant argued that as Pw1 was a married woman, she could have come by those sperms in the course of normal intercourse between married couples. The complaints by the two appellants are not far fetched. At page 3 of the judgment, the trial Magistrate had this to say and I quote: “The complainant’s evidence to the effect she was raped appears to be o f the truth because her shirt (exit. P2) was torn when she is as being unwearied (sic) it and the evidence of the doctor who medically examined her (Pw ) vide PF 3 (exit PI) shows she had sperms. Therefore, since there is no any evidence against her evidence about on how the said sperms might have been injected to her, it remains so clear that the said sperms entered her body bv wav of being raped. ” emphasis mine. This Court has had the opportunity of viewing police PF.3 issued to Pw1 on 26/11/2003 immediately after the alleged incident. At the reverse side of the exhibit, one Dr. Chobya made endorsements, dated 11/12/2003, exactly fifteen days after the alleged rape. In the first instance, the doctor observed that Pw1 had sustained cut wounds, 4cm long by 2cm deep, and 1cm wide, and the wound was infected. Further that laboratory analysis was not conducted as complainant reported rather late. The exhibit is further endorsed, overwritten to show that Pw1 had sperms. It was not shown when those entries were effected, and as the doctor was not called, it could not be ascertained as to who effected/altered the findings. All in all, since Exh. PI is clearly dated 11/12/2003, there can be no doubt that Pw1 did not submit herself to medical examination from 26/11/2003 up to 11/12/2003. Since the police officer who issued PF.3 was not called, as the document was left in the custody of PW1, she should be held accountable for effecting the alterations. The trial magistrate did not take time to examine Exh. PI, and under the circumstances the appellants should have been given the benefit of doubt. Finally an the admissibility of exhibits P3 and P4 ( respectively. The record is loud and clear that the first appellant objected to the production of those statements. While it is admitted that Sections 34 B (2) (a) of the Evidence Act provide circumstances under which the prosecution may resort to such use, it is necessary that the prosecution must show good cause before being allowed to proceed. And the conditions specified in 34B (2) are cumulative. They all have to be satisfied before an intended statement can be produced. The Court was referred to the case of Rep Vs Hassan Jumanne f 19831 TLR 432 and The DPP Vs OPHANT MONYANCHA T19851 TLR 127. The principles enunciated in the above two cases is good law which ensures that an accused is always accorded the opportunity to defend his cause fairly. It goes without saying that Exh. P3 and P4 were wrongly admitted and should be struck out. Once evidence touching on P3 and P4 is struck out, and as the appellants were not sufficiently identified, the evidence by PW1 alone cannot suffice to found a conviction for gang rape under the circumstances. For the forgoing the conviction of the appellants is quashed and sentences set aside. The appeal is allowed in its entirety. c<rrxYii JUDGE 18 / 10/2007 Judgment delivered in the presence of all parties. JUDGE 18 / 10/2007 Right of Appeal Explained. JUDGE - < 18 / 10/2007 AT BUKOBA 18 / 1 0 /2 9 0 7