20071205 TZHC Moshi

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CRIMINAL APPEAL NO. 87 OF 2003 ORIGINAL DISTRICT COURT MOSHI CR.C NO. 422 OF 2000. HONEST RIWA & ANOTHER .............................APPELLANTS Versus REPUBLIC .......................................... RESPONDENT JUDGMENT S. E. MUGASHA, J ,; In this appeal, the appellants and four other persons were charged with • rape contrary to section 130(1) (a) and (b) and armed robbery contrary to sections 285 and 286 of the Penal Code Cap 16 of the Revised Edition of the laws of Tanzania. The particulars of the offence are that, the appellants and four. other persons, on 12th May, 2000 at 1.45 hrs in Mrumeni Kirua Vunjo, Moshi District within Kilimanjaro Region jointly and together did have sexual intercourse with one Magdalena w/o Minja and also did steal cash money and other items all valued at 1,042, 700/= the property of Magdalena Minja and immediately before such stealing did threaten to shoot the said Magdalena with the pistol in order to obtain the said property. 1 The appellants did not plead guilty to the charges when the same were read to them and the trial Magistrate relying on the adduced evidence which is available on record convicted the appellants and sentenced them imprisonment for a term of 30 years and twelve strokes for the first count and in respect of the second count imprisonment for a term of 30 years, both sentences to run concurrently. The appellants aggrieved with both conviction and sentence have filed an appeal raising nine grounds of appeal which all hinge on failure by the prosecution to prove the charges beyond any reasonable doubt because they were not properly identified at the scene of crime. On the other hand, Ms Veritas Mlay the learned State Counsel who represented the Republic opposed the appeal and supported conviction and sentence. In support of her argument the State Counsel submitted that, the appellants were properly identified at the scene of the crime as PW1 and PW2 (Mary Minja) knew the appellants before the incident managed to identify them due to electricity light outside their house. As regards the persons who raped PW1, the State Counsel asserted that, PW1 realised the appellants to be the assailants because the two raped her in turns and after the 2nd appellant had raped her he called the 1st appellant who also raped PW1. 2 The grounds of appeals, submission by the appellants and the submission by the State Counsel raise one pertinent point for the determination of the court and that is whether the appellants were properly identified at the scene of crime. At this juncture it is imperative to evaluate the testimony of the Prosecution witnesses. PW1 (Magdalena Minja) testified that on 12/5/2000 at night while inside her house in the bedroom heard somebody opening and decided to go to the sitting room and switched off the security light but on peeping outside she could not see anybody. Then PW1 climbed on a stool and through a glass panel at the door saw the appellants to be amongst the bandits outside the house. When the bandits struck, according to PW1 she ran into her bedroom where the appellants and two other • persons broke into, and the second appellant who held a panga, club and a pistol demanded money and the bandits took away 600,000/ and a Sony radio. Thereafter the 2nd appellant covered PW1 with a blanket and raped her. In an attempt to describe the assailants, PW1 described the 2nd appellant to be the tallest in the group and that she came to know of the name of the 1st appellant after the 2nd appellant called out his name when they were raping her in turns. After the bandits had left then PW1 removed the blanket and she reported the matter to the police and was issued with PF3 and went to the Hospital for Medical examination. After a month, PW1 went to the identification parade where she identified other culprits but could not identify the appellants as they refused to take part in the identification parade. PW1 did not 3 mention the person who gave her such information. Moreover, a pertinent question is, if at all PW1 knew the appellants before the incident then what was the essence of the identification parade instead of availing proper information to the Police to enable them to effect prompt arrest of the culprits? According to PW2 who was at the scene of crime with PW1 testified that lights were put off and she could not see what was going on. However, PW2 went further to state that she identified. Riwa and Donald without specifying as to how in that darkness did she manage those it being that she testified that during the five year period which she stayed at Kirua Vunjo she had never seen any of the accused persons. This entails that the alleged culprits were strangers to PW2 C) who ought to avail the description and terms of description of the people she identified at the scene of crime under the unfavourable conditions during the night. In Amani Waziri Vs. Republic (1980) TLR 250. It was held: "Evidence of visual identification is of the weakest kind and most unreliable. No Court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that evidence and the Court is fully satisfied that evidence before it is absolutely watertight." 4 Reverting to the testimony of PW1, if testified to have it the same was true then it could have accelerated early arrest of the appellants. However, the appellants were arrested after a month and evidence of PW3 (PC Juma), PW4 (Inspector Ashura) and the 2nd appellant is a clear testimony that PW1 did not know the assailants before being so informed by the Police as the same is evidenced by a peculiar similarity of the testimony of PW1 and PW4 who all testified that the appellants refused to take part in the _identification parade. Also the 2nd appellant in his defence stated that while they were being taken to the Bus Stand by PW3, they met the complainant on the way and PW3 informed PW1 that and I quote: "Hawa ndio wezi wako" • I am inclined to believe that the names of the appellants were shown to PW1 by PW3 and subsequently mentioned to PW1 by PW4 who testified that the appellants refused to take part in the identification parade. If at all PW1 knew the appellants before the incident then why had she had to labour in undertaking' the process of identifying people she already know. The proper way was to avail the information to the police in order to affect the arrest of the appellants. The trial Magistrate in his judgment heavily relied on the testimony of PW1 and PW2 to have identified the appellants at the scene of crime. Apparently, the trial Magistrate erred because while PWI testified to have identified the appellants, PW2 testified to have identified the 2nd 5 I ' ' appellant and Donald John. Moreover, while PW1 testified that she was raped by the appellants whom she identified because they were calling each others names in the turns of raping her, PW2 has strongly contradicted the testimony of PW1 because she testified and I quote: When the bandits were in Magdalena's bedroom, I was at the sitting room ... / could hear what they were telling Magdalena. They demanded her watch, money .... / did not hear them call each other names" PW3 testified to have been informed by PW1 that the culprits were Bryan and Donald. But PW3 contradicted himself when he also testified that he was informed by an informer that the suspects were bragging about the robbery over a drink. But all the same when PW3 conducted a search it is the sixth accused who was found with the radio and not the appellants. Worse still, the informer who heard the suspects • bragging about the robbery did not testify in the trial court in order to cement on the testimony of PW3. The delay in the arrest of the suspects says it all that the assailants were not known following failure by PW1 and PW2 to properly identify them at the scene of crime. In Rashid Ally vs Republic (1987) TLR n 97 it was held that: z. In order to justify a conviction solely on evidence of identification such evidence must be watertight; ii. Description and terms of those description on identification of the accused are matters of highest importance of which evidence ought to be given" 6 • Thus the appellants were not properly identified at the scene of crime and PW3 merely suspected the appellants to be the assailants after being informed that they bragging over the incident. However, the same was not true as the appellants were not found with the stolen items at least to implicate them with the alleged charges PW3 conducted a search she never found the appellants with any of the stolen items. With regard to the alleged rape, the PF3, the same during trial as seen was tendered for identification and admitted for that purpose. With respect the same was not properly before the court and the trial Magistrate faulted in acting on the PF3 to convict the appellants In Ngeti s/o Mwaghnia Vs Republic {1961) EA it was inter alis held that, a • trial should be conducted upon evidence before the court. In the case at hand the PF3 was not admitted and in essence there was no medical evidence to substantiate rape. On the defence evidence, the appellants who admitted to know PW1 did put forth a strong defence of alibi which was not challenged by the Prosecution as I shall soon demonstrate. According to the 1st appellant supported by DW2 Veral Stanslaus Mmbando, on the alleged date of the incident, the 1st appellant was at his shop were he was attending people up to midnight because there was a funeral in the neighbouring house. The 2nd appellant also testified that on the alleged date he was at Kibosho to visit his brother. As I have already stated, the defence evidence was not challenged by the prosecutor thus 7 creating a shadow of doubt on the whole of the prosecution case. Thus, the trial Magistrate let alone not properly evaluating the testimony of PW1 and PW2 did not entirely consider the defence testimony before reaching at a conclusion and he faulted for he ought to have considered the entire evidence before reaching at a conclusion. lo. Hussein lddi and another vs. Republic (1986) TLR 166 it was held that: "It was a serious misdirection on the part of the trial judge to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence. In the circumstances, the prosecution did not prove charges of rape and armed robbery against the appellants beyond reasonable doubt and in the upshot of the aforesaid; I allow the appeal, quash conviction S. E. MUGASHA JUDGE 5/12/2007 Judgment delivered in the presence of the appellants and Mr. Maugo, State Attorney. S. E. MUGASHA JUDGE 5/12/2007 8