20120413 TZHC Iringa

\, - .,., -c;,'! '• .,-•· IN THE HIGH COURT OF TANZANIA ~ AT IRINGA APPELLATE JURISDICTION (Iringa Registry) - (DC) CRIMINAL APPEAL NO. 37 OF 2011 (Originating from Criminal Case No. 154 of 2010 of the District Court of Iringa District at Iringa Before: M. Senapee, R.M.) KILAONI PILLA .. ,....................... APPELLANT VERSUS THE REPUBLIC .... :.......·......... RESPONDENT (Date of last Order 21.3.2012 Date of Judgement 13.4.2012). JUDGEMENT KIHIO, J. The appellant, Kilaoni Pilla· was convicted of Rape contrary to Sections 130 (2) and 131 of the Penal Code, Cap. 16 R.E. 2002 in the District Court of Iringa and· h·e was sentenced to thirty years imprisonment. It was alleged in the trial court that the appellant on 17th day of April, 2010 at about 02.00 hours at Image No. 8 village 1 within Kilolo District in Iringa Region did have carnal knowledge of one Neema D/o Sanga without her consent. Neema Sanga (PW.1) gave testimony in the trial court that on 18th April, 2010 at 02.00 hours when she was asleep at her home and when she was in her menstruation period and has diarrhea the appellant entered into her room, tied her neck, took off the "Kitenge" from her and inserted his penis into her (PW.l's) vagina. She further gave testimony that the appellant kept on raping her and as a res_ult she became. unconscious. It was in her evidence that there was light from the "Kibatali" in the room but the appellant put the "Kibatali" off. It was also in her evidence that on the following day she went to · the hospital where sh.e was admitted and he had an exercise book (Exhibit P.1) where her attendance was noted. In cross-examination she told the trial court that the "Kibatali'; was near her but he (appellant) pu_t it off quickly and started raping her. She .further told the trial court that the door of her room was not broken and she did not hear the time he (appellant) opened the door. In re- examination she (PW.1) said that she could not defend h·erself because it was a surprise. Leonard Sanga (PW.2), the victim's father, to"ld the trial court that on 18th April, 2010 at 02.00 hours when he was at his house sleeping his daughter (PW.1) came and informed him that she had been raped by Kilaoni (PW.1) who was his (PW.2's) son's house boy. He further told the trial court that he and the "Kitongoji" Chairman arrested the appellant. 2 . Fredrick Sanga (PW .3) gave testimony in the trial court that on 18th April, 2010 at 06.00 hours he joined his father (PW .2) in tracing the appellant and they found him at the house where he resided. He further gave testimony that they arrested the appellant and took him to the Police station. e Mar:-ko 5/o Chang'a (PW.4) Street Chairman gave testimony that on 18th April, 2010 at 02.00 hours PW.l's parent knocked the door at his (PW.4's) house and informed him that Neema Sanga (PW.1) had been raped by Kilaoni Pilla (DW.1). · He further· gave testimony that he went to the Scene of trime and PW .1. who .could not talk. properly said that he was strangled and raped by Kilaoni (appellant). Gimba Chaula (PW.5) told the trial court that the appellant once came at her house closed her mouth and wanted to take off her underwear but the neighbours" rescued her. Dr. Nickson Mbeyela (PW .6) told the trial court that on 18 th April, 2010 Neema Sanga (PW.1) came at the hospital complaining ·that she had pains at her vagina because she had been raped by one person. He further told the trial court that he examined her (PW.1) as per the PF.3 (Exhibit P.2) and he found that she (PW .1) had no bruises but she had abdomen pain. The PF.3 (Exhibit P.2) indicates that PW.1 had painful genitalia due to · forced penetration per vagina, but no bruises per vagina. The appellant denied to have raped Neema Sanga (PW.1). 3 He gave defence evidence on oath that on 18 th April, 2010 he was at home sleeping when Fredrick Sanga, Alexander Sanga and Ester Sanga came and told him that he had raped their sister, Neema Sanga. He further gave testimony that he was arrested and · taken to Ilula Police Station where he denied to have raped Neema Sanga. The appellant filed a Petition of Appeal containing five grounds of appeal. However, in essence his grounds of appeal are two, namely:- 1. That the learned trial Magistrate erred in convicting him when there was no sufficient identification evidence. 2. That his guilt was not· proved beyond reasonable doubt. The appellant. appears in ·person in this appeal while the· respondent, Republic is _represented by Mr. Luena, learned Principal State Attorney. The appellant had nothing material to submit in support of his grounds of appeal and he decided to adopt the grounds of appeal shown in his Petition of Appeal. Mr. Luena declined to support both the conviction and sentence. He submitted that the evidence on identification was insufficient. He further submitted that PW .1 told the trial court 4 that the assailant put off the "Kibatali" lamp quickly as he entered in her (PW .1 's) room and so PW .1 had no enough time to identify her assailant. He pointed out that the offence was committed during night time at 02.00 hours and it was in the evidence of PW .1 that she was taken with surprise. He referred this court to the case of Waziri Amani V. Republic (1980) T.L.R. 250 where the court held that:- "visual identification is not reliable unless possibilities of mistaken identity are eliminated". He contended that the intensity of the light in the victim's room was doubtful. -The appellant has nothing to submit in reply. The crucial issue for determination in this appeal is whether or not the appellant was i.dentified at the Scene of crime. Mr. Luena rightly referred this court to the principle laid down in the case of Waziri Aman V. Republic (1980) T.L.R. 250 that:- "visual identification is not reliable unless possibilities of mistaken identity are eliminated". In the case of Walter S/o Dominic @ Omundi and Tumaini S/o Luther V. Republic, C.A.T. Crimlnal Appeal No. 15 of 2005, Arusha registry (unreported) the Court of Appeal of 5 Tanzania laid down the principle of law that:- "Where an offence is committed at night the issue of identification is very crucial and that no court should convict an accused person on mere visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely water tight". Again in the case of Said Chaly Scanis V. Republic - C.A.T. Criminal Appeal No. 69 of 2005, Mwanza registry- (unreported) the Court of Appeal of Tanzania enunciated the principle that:- "Where a witness is testifying about identifying another person in unfavourable circumstances, like .during night, he must give clear evidence which leaves no doubt that the identification is correct and reliable. To do so he will need to mention all the aids to unmistaken identification like proximity to the person being identified, the source of light and its intensity, the length of time the person being identified was. within view and also whether the person is familiar or a stranger'. In the instant case, the victim of rape (PW. l) said that she did ·not hear when her assailant opened the door of her room at 6 02.00 hours and so she was taken with surprise. She (PW.1) further said that the assailant put off the "Kibatali" lamp quickly as he entered in her room. There is no evidence that PW .1 knew the appellant before the date of the incident and so he (appellant) was familiar to PW .1. Furthermore, the intensity of the "Kibatali" light in PW. l's room was not established. From the evidence available in the trial court I am satisfied that the evidence of the identification of the appellant was insufficient and very suspect. The evidence on the identification of the appellant leaves a lot of doubts that it was correct and reliable. I, therefore agree with Mr. Luena that the evidence on the identification of the appellant was insufficient. As the evidence on the identification of the appellant was very suspect, the appellant should be given the benefit of doubt. In the event, the appeal is allowed. The conviction against the appellant is quashed and sentence is set aside. It is ordered that the appellant be released from prison immediately unless he is held there on other lawful cause. ~ S.S.S. KIHIO JUDGE 13.4.2012 7 Court:- Judgement delivered in the presence of the appellant and Mr. Luena learned Principal State Attorney. ~ S.S.S. KIHIO JUDGE 13.4.~012 8