vumilia seifu vs republic 2008 tzhc 290 18 july 2008

IN THE HIGH COURT OF TANZANIA AT MTW ARA CRIMINAL APPEAL NO 40/2007 (From Original Mtwara District Court Criminal Case No. 164/2005 Before M.C. Mteite ESQ -RM ) V U M IL IA S E I F U ......................................................................... A PPE L L A N T VERSUS TH E R E P U B L I C ...................................................................... R ESPONDENT 30/6/2008 & 18/ 7/2008 Rweyemamu J., Judgment In M tw a ra D istrict Court (DC) Cr. Case 164/2005, the appellant, Vumilia Scif w a s charged, convicted and sentenced to 30 yrs im p riso n m en t with 6 strokes o f the cane for attem pted rape contrary to S. 132(1) as amended by section 8 o f A ct 4/1998 - fam ously know n by its acro n y m - SOSPA. The facts at trial w ere in brie f that: T he com plainant P W 1 a girl aged 21 yrs was w ith her 7 year old sister P W 2 along the road. T hey w ere going to sell cassava. T h e y m et the appellant w ho attempted to rape her. A ccording to the com plainant- he forced her to put her luggage down, they struggled, as the appellant tried to undress her, he slapped her and tore her u n d erw ear (tendered as P. exh. 1); but she m anaged to brake away and run w hile raising alarm. The scene o f crim e was far from the village thus n obody an sw ered her call for help. A ccording to her the appellant was familiar to her as he used to see him in their village with a dog. P W 2 testified follow ing a voire dire exam ination and corroborated the co m plainant’s story a d d in g that P W 1 then run to a n e a r by police station. The investigator P W 3 testified that, the follow in g day i.e.27/8/2005 he arrived on duty to find a rep ort o f the crime. H e visited the scene o f crime with the com plainant and d rew a sketch o f the scen e adm itted at trial as P.2. And that by then the app ellant w as n o t yet arrested. He w as arrested 3 days later by “mob justice, he was fo u n d climbed on the tree The last witness P W 4 testified that “in august, the accused raped one woman, that woman reported the matter to us we arranged ourselves — we succeded to met the perpetrator Vumila s e lf we netted at mangamba village in the bush on top o f a tree ”, th ey then arrested him and took him to the police station. In defense, the app ellan t testified that on 2 8 /8/2005 he reached M an gam ba village w here he met P w 4 at a local b re w place, the latter told him they were ‘ju s t drin king a little’ b u t they w ere after him , and ordered him to go with them to the police station,. O n th e w ay “a m ob justice started to assault him ” he decided to run to the police station. T h en a m ob o f people arrived there and told the police he w a s the one w anted. T he com plainant was called, questioned but she denied that he w as her assailant. Incidentally, while cross exam ining the com plainan t, the ap p ellan t had raised the issue o f what she said at the police station su g g estin g that her statem ent to the police was different with her testim ony in co u rt as reg ard s identification o f the appellant. In his 4 grounds o f appeal, the appellant co n tin u ed to deny the charge subm itting that there was insufficient evidence o f identification; he was not arrested on the scene; no identification parade w as conducted and that no PF 3 was subm itted to prove the offence. S up po rting conviction, Mr. M kude state attorney for the republic/respondent rightly responded that in the circum stances o f the offence, a PF 3 w as unnecessary-it was an offence o f attem p ted rape and the crucial evidence on the facts described w ere p ro v ed by PI an d P2. He w as also right that the fact he was not arrested at the scene is o f no material consequence- after all, ordinarily, culprits do not w ait arou nd to be arrested after co m m ittin g an offence. R egarding identification, the learned attorney submitted that there was no need o f co nd uctin g identification parade because according to the evidence, there was still som e daylight w hen the crime was com m itted. He subm itted that the appellant w as properly identified. A fter goin g through and evaluating the evidence on record, 1 agree with the appellant and disagree with the learned attorney bu t for reasons other than those advanced by them, that the evidence o f identification was not w atertight. I found no evidence that the com p lainant gave description o f the appellant to anybody as would m ake this court believe tha- there was no possibility that she did not identify the appellant at the scene but did so after he was arrested. T he com plainant gave no such evidence; and Pw 3 to w hom the m atter was reported gave no such evidence. He in fact said a w om an reported to have been raped, not the co m p lain an t-n o r that the report was on attem pt not rape. N o w itness from the police testified in respect o f w h at the com plainant said when she run to their station- did she m ake im m ediate disclosure o f the appellant’s identity? N ow , it is possible that the com plainant gave proper description o f the appellant as her assailant but the investigation and prosecution m ach in ery m ishandled the facts-givin g room to the m en tion ed loopholes. All I can say / conclude is that such loo ph oles create reasonable do ub t in the p ro se c u tio n ’s case such that I find it u n safe to uphold the a p p e lla n t’s conviction. In the result, I quash his conviction and set aside the sentence. It is ordered that the appellant be released from prison forthw ith unless h e ld on account o f som e other law ful cause.