winani so nyamhanga another vs republic 2007 tzhc 382 30 april 2007

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HC. CRIMINAL APPEAL NO. 33 OF 2006 (CF) CRIMINAL APPEAL NO. 34 of 2006 (Original Cr. Case No.279 o f2005 of the District Court of Tarime District at Tarime Before: A.L.M. MALLYA, District Magistrate) 1. WINANI s/o NYAMHANGAR 2. CHARLES s/o MARWA p .................. APPELLANTS Versus THE REPUBLIC............................................... RESPONDENT 28/3/2007 & 30/4/2007 JUDGMENT RWEYEMAMU, J: The decision in this appeal case has caused me considerable anxiety for reasons I shall soon explain. The background story according to the prosecution is as follows: Early on 25/5/2005 about 5.45 am Sgt Elizabeth (Pw1) was riding her bicycle to work. She had on her shs. 14,000/= and a cellular phone. She met three people armed with a gun and machete who, after threatening to kill her robbed her properties but after two of them had raped her in turn. They vanished soon after. She later got up, went to report the mishap in her office and then to the police where she got a PF 3 (PI), then went to hospital. On 31/5/2005 she identified the two appellants at an Identification parade conducted by Pw2. There after, four people were arrested and charged, two were convicted and the other two acquitted. The issue for decision in this case was and in this appeal is; whether or not there was evidence that the two appellants were the perpetrators of that heinous crime. I have to state at the outset that this case was poorly investigated and prosecuted. The only evidence in the case as testified to by three witnesses was as follows: Pw1 was the victim. The gist of her testimony was that she was able to identify the two appellants (who were strangers); due to the closeness she had with each when they were raping her-she could not identify the third who remained outside with the bicycle. She also said when x-examined by the 2nd appellant that, a lady in the nearby house opened her window when the crime was being committed but she was ordered to shut up. Strangely no follow up was made of this ladv during investigations - if there were investigation at all in this case. In her evidence during x-examination by the 2nd appellants Pw1 stated that it was the description she gave to the police which led to the appellants' arrest. It is may be opportune to point out that although Pw1 testified that only three people carried on the crimes and that she could recognize only two, four people were arrested charged and tried. When asked why she did not raise any alarm soon thereafter, Pw1 responded that she did not because 'it could not help anything.' From her evidence, it is not clear how or when she finally made a report to the police, or what statement she made to them leading to the arrest of four people. Evidence of her statement to the police immediately thereafter describing culprits would have been vital because it could have been tested against her statement of identification in court. That information would have strengthened her positive evidence in court in respect of identification of the two appellants. Unfortunately, no investigator was called to testify, nor is it clear that the case was investigated at all. Some of the investigation gaps would have been cleared had an investigator testified. The decision in this appeal causes me anxiety (the case was poorly investigated and prosecuted, a fatal issue where the evidence of the victim Pw1 is almost the only one available) because of that, another rape victim will go un avenged. For this reason I find it pertinent to repeat an observation made elsewhere that investigation and prosecution of rape cases must be treated with the same seriousness accorded other serious crimes attracting heavy penalties. See Ezekinya Ondego Akanga v R, HC. Cr. Appeal 78/2005, Mwanza registry - unreported; and from the same registry, Samwel s/o Lage @ Jumbo V R, HC. Cr. App. 180/2003 where Masanche J, observed that; "After reading the entire record, I get the impression that the prosecution into this rape case was very casual...... Rape is a serious offence: it attracts life imprisonment. So, investigating officers must be thorough in their investigation. And indeed, it behooves reasoning to see that even the investigating officer would ignore to come to Court and testify" And on the same issue of absence of the investigators testimony Masanche J, observed in Lucas s/o Kahindi v R, Mwanza HC. Cr. App.236/2003, Mwanza registry (unreported), that; "the law has not put investigators to be vital witnesses in criminal trials for fun. These are the people who link accused to the commission o f the offence. . . " The evidence as presented leaves a lot of gaps, which probably lead the appellants to raise what I find to be valid concerns in ground 7 & 8 of the Memorandum of Appeal thus; "7. That, if at all the appellant in collaboration with others raped Pw1 how she managed to walk from the scene without any help in terms o f transport means about 4 km to police post which is near her work place to report the matter. 8. That, the matter o f time is another issue which rise a lot o f questions in this case. It was alleged by prosecution that at around 5.45 am, appellant with other managed to stole some properties such as mobile phone, bicycle, thermos and Tshs. 14,000/= cash from Pw1 and immediate before such theft actual violence was used. Now how an appellant with others managed to stolen the said properties and then raping Pw1 before down without being seen by neighbours nor other people passing near simply because that un finished house said to be near the path by prosecution." The other evidence was that of Pw2 a Police Officer who conducted the ID Parade and Pw3 a member of the traditional vigilante group (sungusungu) whose testimony related to the 4th accused (who was acquitted). According to the latter, the 4th accused was brought to Pw3 for a different offence but confessed to have committed the offence together with others including the appellants. The evidence of Pw3 unfortunately, does not add much. Evidence of ID - is not substantive evidence because by itself it has no independent probative value. See Moses Charles Deo V R 1987 134 CAT holding that:- "OV an extra-judicial parade proceeding is not substantive evidence, it is only admitted for collateral purposes, in the majority of cases it serves to corroborate the dock identification of an accused by a witness in terms of section 166 of the Evidence Act, 1967;" Apart from that, the ID parade was not carried out in terms of applicable procedure and guideline as elaborated in Rex v Mwango s/o Manaa (1939) 3 EACA 29, a decision adopted by the TCA in Tongeni Naata V R, (1991) TLR 54 TCA. These procedures in Rex V Mwango s/o Manaa were enumerated by the late Katiti J, in Theonest s/o Leonard, Salvatory s/o Francis, Fabian s/o Alphonce V Republic, HC. Cr. Appeal No. 17/1985, Mwanza Registry (unreported). According to that decision, the following precautionary measures are vital, and I paraphrase; 1) The accused must be informed of his right to have an advocate, friend or relative present 2) Accused should be placed among at least 8 persons similar in age, height, general appearance and class of life as himself. 3) Accused should be allowed to take any position he chooses. 4) At the termination o f the parade, accused should be asked and his response noted, as to whether he was satisfied that the parade was carried on properly. 5) The identifying witness should not be shown the suspect before. 6) The person in charge of the case (investigator) although he may be present, does not carry on the identification himself. 7) Any person with no business at the parade should be excluded. I have checked the ID parade register P3. All that is indicated there is the list of the names of participants and the position the appellants took. Pw2's testimony only describes how Pw1 identified the appellants and no more. There was no evidence to show that some or any of the precautionary steps as elaborated above were adhered to, nor is it indicated if Pw1 gave a description of her assailants to the police before the ID parade was conducted. The learned state attorney Ms. Mrema, supported conviction but in her submission she said nothing regarding the concerns raised above in respect of P3 and short comings regarding absence of key information due to either poor investigation or poor prosecution. This case, as investigated and prosecuted, leaves a lot of unanswered and disturbing questions; such that it raises doubt regarding guilty of the appellants. In view of that I find the appeal merited, quash both appellants conviction; set aside the sentences and order that they be released forthwith unless otherwise lawfully held. Sgd: R. M. RWEYEMAMU JUDGE 30/4/2007 Date: 30/4/2007 Coram: Hon. R. M. Rweyemamu, J Appellants: Absent - they don't with to be present For Republic: Miss Mrema - State Attorney - Present B/Clerk: Miss Judith Court: Judgment delivered this 30/4/2007 as per coram above. Sgd: R. M. RWEYEMAMU JUDGE 30/4/2007