20100511 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: MSOFFE, J.A., MBAROUK, J.A. And BWANA, J.A.) CRIMINAL APPEAL NO. 28 OF 2006 I , 1 1. KUDA ABUBAKARI} ................ ••••••••••••••••••••••••• 1......•. APPELLANTS 2.SAIDIISSA I VERSUS THE REPUBLIC .......................................................( ....... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) ' I (Masanche, J.) I I dated the 31 st day of October, 20()5 in Criminal Appeal Nos. 67 and 68 of 2004 JUDGMENT OF THE COURT 10 & 12 May, 2010 MSOFFE, J.A.: I Before the District Court of, Mwanza the ap~ellants and another ! I were charged with two counts of armed robbery and gang rape contrary to Sections 285 and 286; and 130 ! and 131 (A) (1); respectively; of the Penal Code. After a full trial the other accused I person was acquitted. The appellants were convicted of armed II robbery. As for gang rape, the a:ppellants and_ the other person were I I acquitted of the offence. However, the second appellant was I I convicted of rape contrary to Sections 130 (1) arid 131 (1) of the I Penal Code as amended by the relevant provisions of Act No. 4 of I 1998. For the armed robbery count both app~llants were each I sentenced to a term of thirty years imprisonment. dn the rape offence I I the second appellant was sentenced to twenty year~ imprisonment and I corporal punishment of twelve strokes of the cane. The appellants I. I unsuccessfully appealed to the High Court, hence this second appeal. I I In their respective memoranda of appeal ~he appellants are I essentially attacking the courts below in their concurrent findings of ! I fact that they were duly identified on the mat~rial day and time. I According to them, both the evidence of visual id~ntification and that I of the identification parade did not establish the prosecution case I I against them beyond reasonable doubt. In t~eir respective oral I I submissions before us they reiterated the same thing and urged us to I hold that the evidence against them did not prbve that they were guilty. 2 I I On the basis of the evidence on record Mr. David Zacharia I I Kakwaya, learned State Attorney representing and appearing on behalf I I of the respondent Republic, did not seek to support the conviction(s). I I He therefore submitted in support of the appeal and: invited us to allow the appeal and set the appellants free. I There is one thing we wish to mention from the outset which I I apparently escaped the attention of both the trial: District Magistrate I I and the Judge on first appeal. The alleged offences were committed I I on 3/1/2002. This was after the enactment of th~ Sexual Offences Special Provisions Act No. 4 of 1998. If so, ~nder Section 131 I I (1) of the Penal Code, as amended by Act No. 4 of 1998; the secondI i appellant, having been convicted of rape, ought to have been I ' sentenced to thirty years imprisonment instead Iof the twenty year term of imprisonment. I I The facts are simple and straight forward. At 10.00 p.m. on the I I fateful night members of a family who included pw2 Neema Wilson, I PW3 Mushi Patrick and PW4 Isaya Wilson were having dinner. ! I Suddenly bandits broke in and ordered them to lie down. It was said I 3 that the bandits were about nine. The first bandit to enter had a i machete and a club. Electric light was on. PW2, PW3 and PW4 I I identified the first and second appellants. According to Neema she I I had gone to school with the first appellant. Neema; also said that the second appellant was often seen at Mesa Hotel \Yhich was in their I neighbourhood. The witnesses also identified the appellants at an identification parade. I This Court in a number of cases during and isubsequent to the I I decision in the celebrated case of Waziri Amani v Republic (1980) I I TLR 250 has always reiterated that visual identificption is one of the weakest kind of evidence and all possibilities of mistaken identity have to be eliminated before a conviction can safely lie. We will be very brief in our discussion of the pertinent issue of I visual identification. In our analysis, evaluation and appreciation of the I I evidence we are of the settled view that the a;ppellants were not identified on the night in question. As correctly su~mitted before us by I Mr. Kakwaya, the incident was sudden and took place at night under I unfavourable conditions. After the bandits had broken into the house 4 I I they immediately ordered the witnesses to wrap up their faces with I I I cushions and plastic bags and enter into a small room. In the I I evidence of PW2, even at the time of the alleged r~pe her face was I I still wrapped up with the cushions and a piece of plastic bag. It is ! also in evidence that the witnesses opened their face~ after the bandits I I had left. It is also significant to observe here that ~he witnesses said I I that they alarmed and woke up neighbours and na~rated the incident I I to them; yet they did not name the appellants Ito them. If the I witnesses had truly seen and identified the appellants at the material I I time we think that prudence demanded that they m~ntion their names, at that early opportunity, to the neighbours who had assembled in I I answer to the alarm. Failure to do so did, in our ~iew, cast doubt in I I the veracity of their evidence of visual identification.: On the whole, we think, it is unsafe to sustain the conviction(s) I I entered by the trial District Court and upheld by the: High Court on first I I appeal. The appellants were entitled to be given t~e benefit of doubt and thereby earn an acquittal. 5 We hereby allow the appeal, :quash the conviction(s) and set aside the sentence(s). The appellants are to be released from prison unless lawfully held. ; th DATED at MWANZA this 11 day of May, 2010. J. H. MSOFFE JUSTICE OF APPEAL M.S.MBAROUK JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. - - s, ------ ' .> ,--I (J. S. MGETTA) DEPUTY REGISTRAR 6