20120323 TZCA Iringa

· ... ::_·CJS,} .. . , .,_ . IN THE COURT OF APPEAL OF TANZANIA ATIRINGA (CORAM: MBAROUK, J.A., MASSATI, J.A., And ORIYO, l.A.) CRIMINAL APPEAL NO. 227 OF 2011. 1. ANYELWISYE MWAKAPAKE 7 ~· AMBROSE NOMBO @ZUNGU _} ........................ APPELLANTS VERSUS dated 13th day of December, 2006 in Criminal Appeal No. 2 of 2005. JUDGMENT OF THE COURT 20th & 26th March, 2012. MASSATI, l.A.: The appellants were convicted of the offence of gang rape under section 131A(a) and (2) of the Penal Code as amended by the Sexual Offences Special Provisions Act, 1998. They were sentenced to life imprisonment. Their appeals in the High Court - 1- (Kaganda, J.) at Song ea, were dismissed. Still protesting their innocence, they have appealed to this Court. In this appeal, the appellants have appeared in person,. fending for themselves. The respondent/Republic was represented by Mr. Edson Mwavanda, learned State Attorney. The facts leading to the conviction of the appellants are these. The victim GAUDENSIA d/o MWITUMBA, (PWl) used to- work for gain as a bar attendant at Top Life Bar in Mpepo -Village, in Mbinga District, Ruvuma Region.. On the night of 26th January, 2002. after closing shop, ·PWl started walking toward her home. Somewhere in between, she was stopped by a group of youths. They started assaulting her, and eventually dragged her to a nearby guest house known as Litembo Guest House. There, she was forced into room No~lS; forcefully undressed and the three youths started to have sexual intercourse with her in turns, both in and against the order of order. The ordeal lasted until the next morning when she ·outwitted her captor and - 2- •· escaped. The matter was reported to the local authorities and then to the police where she was given a PF3 and got treated. Investigation led into the arrest and arraignment of three youths, including the appellants. The third accused was acquitted by the trial court. The first appellant has filed 8 grounds of appeal to attack the findings of the lower courts. These can be classified into two major groups. The first group consists of the first, second, . fifth, and sixth grounds that seek to challenge the courts' finding on the identification of the appellant. The second group consists · of the third, fourth, seventh and eighth grounds which seek to impugn the lower courts finding on the credibility of the prosecution witnesses, and the finding that the prosecution had proved its case beyond reasonable doubt. On the other hand, the second appellant filed 9 grounds of appeal which again, could be grouped into two major categories. There are those that seek to challenge the findings on -3- identification of the appellant, and there are those that seek to assail the· credibility of the witnesses; and failure on the part of the prosecution to call some witnesses .. At the end of the day the appellants urged us to allow their appeals and quash their convictions and set aside the sentences. But Mr. Mwavanda, learned State Attorney, thought that the conviction of the appellants was well founded, and their appeals had no merits. He argued the respective grounds of appeal generally in respect of each of the appellants. Beginning with the first appellant, learned counsel submitted that he was properly identified by PW!, whom the trial court and the first appellate court found credible. Her evidence was impeccable as there was not only full moonlight, but also due to the fact that the first appellant was one of her regular customers at the bar where she waited. She also had enough time to see when they went into a verbal exchange and -4- :· -· . - . t physical abuse on the way before they dragged her to Litembo · Guest House. He went on to submit that her evidence alone was suffic;ient to support the conviction. But, if need be, it was corroborated by PW2, Pwl's workmate who also identified the appellant as their regular customer at their bar. Over and above all, there was also PW4, the doctor who examined and treated PWl -on her injuries and trauma. He admitted however, that there was a discrepancy as to the dates between PWl and PW4, but said that this was immaterial, drawing inspiration from the _case of SHIHOZE SENI AND ANOTHER v R (1992) TLR.330. As to the second appellant Mr. Mwavanda also submitted along similar lines, as in the 1st appellant's case. He said that, he too, was sufficiently identified by PWl and PW2 and there were no material contradictions to diminish the va·lue of their evidence. This was corroborated by the evidence of PW4. After this, Mr. Mwavanda, urged us to dismiss the appeal. -5- In rejoinder, the first appellant said moonlight was not a strong enough light to rule out mistaken identity. He said that the failure by the prosecution to call witnesses such as attendants of the guest house in which the rape was committed, was fatal. He reiterated his defence, that he was nowhere near the scene of crime on that night and that the case was fabricated against him. On the other tland, the second appellant wondered why the doctor did not examine him to establish if he committed the offence. Like the first appellant, he also said that, the case was framed up, and that he did not visit the bar that night; and also wondered why was it that not any of the guest house staff was called to testify. They therefore both reiterated their pleas that their appeal be allowed. We have · carefully considered· the arguments of the appellants and the learned State Attorney. We are settled in our minds that the conviction of the appellants rests solely on the question of identification· of the appellants. We are mindful of -6- what this Court said in RAYMOND FRANCIS v R (1994) TLR 103 that:- ''It is elementary that in a criminal case where determination depends essentially on · identification, evidence on conditions favouring a correct identification is of utmost importance'~ We are aware that this Court has .set certain guidelines on determining issues of visual identification, in WAZIRlAMANI v R (1980) TLR.250, and numerous other cases, but these ...., guidelines were not meant to be exhaustive. The Court is under obligation to consider the circumstances of each case and make its own determination as the justice of each case demands. (See EMMANUEL LUKA AND TWO OTHERS v R Criminal Appeal No.326 of 2010} (unreported). · Benchmarked by these guidelines, we think that, the following factors are material in determining the issue of identification in the present case:- -7- 1. PW1 and PW2 had known the appellants from before, as . they were their customers at the bar. 2~ PW1 and PW2 saw the appellants as PWl was walking home. 3. PW2 saw the appellants attacking PWl. 4. The close encounter and the beating that followed, enabled PW1 to see who her attackers were. 5. The appellants dragged PW1 into a room No ..15 of Litembo Guest House. 6. PWl was closely assaulted sexually by three youths including these whom she identified as her attackers before being forced into the room. 7. PW1 was repeatedly raped in turn by, the same attackers- and particularly by the 1st appellant till the followi'ng morning. 8 .. PW1 described the appellants to the village vigilantes (sungusungu) which led to the arrest of the appellants .. -8- 9. PW2 watched the beatings from a distance of only about 10 paces. 10. PW2 described the attackers and identified them to PW3, the sungusungu commander; which led to their arrest. All the above facts considered, we agree with Mr. Mwavanda that there was no possibility of mistaken identity. We therefore find no reason for faulting both the trial court and the first appellate court in their findings on visual identification. We are satisfied beyond any reasonable doubt, that the appellants were identified. In their second ground of complaints, the appellants have also claimed that the evidence of PW1 was not corroborated. We have a very simple answer to this. In sexual offences once the trial court believes that PW!' was a credible witness, as it did in this case; corroboration was not required as a matter of law . .,.----------------'--------------. This might have been the position of the law before the -9- arnendment to section 127 of the Evidence Act by Act No.4 of 1998; which introduced subsection 7 that reads: "(7) Notwithstanding the preceding provisions of this section, where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender years or of a victim of the sexual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years, or as the case may be the victim of sexual offence on its own merits, notwithstanding · that such evidence is not corroborated, proceed to convict, if, for reasons to be recalled in. the proceedings, the court is satisfied that the child of tender years or the victim ofsexual offence is telling nothing but the truth." (See also ONESPHORY MATERU v R· Criminal Appeal No. 334 of 2009 (unreported). In the present case the trial court believed that PWl was telling nothing but the truth. . It found . her to be a credible - 10- I, witness. We have no reason to interfere with the finding. So, on that ground, her evide.nce alone was sufficient to sustain the conviction of the appellant. But if there was any need for corroboration at all, that evidence is available in the form of PW2 and PW4. PW2 saw and identified the appellants as the ones who dragged away PW1. PW1 said that she was raped by the appellants. And PW4 and Exh.P'B' showed that PWl had sustained bruises and swellings on her vulva, and buttocks among other parts. She was also found to have puss discharge from her vagina. As it held in NGUTIMUKIZA v UGANDA (1999) IEA 220, medical evidence showing that the complainant's vulva was inflamed and the presence of sperms in her vagina was sufficient to prove penetration. Another piece of complaint from the appellants was the failure to call staff from the guest house to testify. There is, we think, no doubt that one of them would have added more weight - 11- to the prosecution case, and in the right circumstances, an adverse inference could be drawn against the prosecution if she/he would· have been a material witness. (See- AZIZ · ABDALLAH v R (1991) TLR.71. In that case, it was held that: ''Adverse inference may be made where the persons omitted are within reach and not called without sufficient reason being shown by the prosecution. " In the present case, however, there is no suggestion as to what material evidence would come from such witness. · In any case the answer was elicited by · no less a person than the 1st appellant when he wanted to know why there was no witness from the guest house. PW1 explained that this was because "even the waiter of the guest house was threatened that if he shouted he would be harmed". So, it was the appellants who instilled fear in the guest house employees to come forward and assist PWl and become witnesses. There was therefore sufficient reason why no one from the guest house could come -·12 - l . ; ·• forward to testify. We therefore also find this complaint devoid · of substance. For all ,the· above reasons, we find that the joint appeal is devoid of substance. It is accordingly dismissed in its entirety. DATED at IRINGA this 23 rd day of March, 2012. M.S.MBAROUK JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the Original. -· . . -: : : : : J;:: -,q ' · (J. 5. Mgetta) DEPUTY REGISTRAR COURT OF APPEAL - 13 -