galogalo munga vs republic 2014 tzhc 2329 19 september 2014

IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL APPEAL NO. 12 OF 2014 (Originating from Criminal Case No. 8 of 2011 in the Resident Magistrate Court of Tanga at Tanga) GALOGALO MUNGA....................................... APPELLANT VERSUS THE REPUBLIC.............................................REPONDENT JUDGMENT MSUYA, J. The appellant, Galogalo Munga was charged, tried and convicted of two offences by the Resident Magistrate Court of Tanga at Tanga. The two offences were rape and 'unnatural offence contrary to sections 130 (1) (a), 131 (1) and 154 (1) (a) of the Penal Code Cap. 16. R. E. 2002. The victim of he said offences was Rukia D/O Hussein. It was alleged that on 25th day of January, 2011 at about 12.00 hours at Msimbazi River-Mtakuja Village within Mkinga District in Tanga Region, the appellant carnally knew Rukia D/O Hussein without her consent. The appellant further sodomized the victim. The appellant pleaded not guilty for the two offences but after full trial, the trial court was satisfied that the appellant committed the offences and convicted him. Subsequently, the trial court sentenced the appellant to serve a sentence of 30 years in jail for each offence and the sentence was ordered to run concurrently. The trial court further imposed a corporal punished of twelve stroke of 0 cane. The appellant was also ordered to pay the victim Tshs. 500,000/= as compensation. Dissatisfied with both conviction and sentence, the appellant preferred this appeal on the following grounds: - One, that he was improperly identified at the scene of crime and therefore that the trial court ought to have not relied on the identification evidence. Two, that the trial court erred in law and in fact for relying on the caution statement which was admitted in record without ascertaining its voluntariness at the time of recording it. Briefly, the prosecution case was that on 25th January, 2011 at noon, Rukia Hussien (PW1), a victim was at Msimbazi River bathing. While she was there, the appellant approached her and forcefully raped and sodomized her to his satisfaction. PW1 felt pain and cried for help but no one came to help her. The witness slowly returned to her home where she communicated the incident to her neighbour, Ally Kamote (PW2). The later reported the incident to Abdallah Ramadhani (PW3), a village executive officer who ordered Samadu Zuberi (PW4), militiaman from Mtakuja village to arrest the appellant. Both the victim (PW1) and the appellant were taken to Maramba Police Station and were received by E.9350 D/C Emmanuel (PW5). PW5 interrogated the appellant. PW5 testified further that in the course of interrogation, the appellant admitted to have raped and sodomized the victim. The witness recorded the appellant’s caution statement which he produced and was admitted in court as exhibit PI. The witness issued PF3 to the victim to go to the hospital for examination and treatment. Dr. Shungusha Sengaso (PW6) from Maramba Health Centre within Mkinga District confirmed to have received, examined and treated the victim. The witness testified further that in the course of examining the victim she was satisfied that the victim was raped and sodomized. The witness produced PF3 report, the document which was admitted in court as exhibit P2. Basically, the trial court relied on the evidence of caution statement and PF3 and was satisfied that the appellant committed the two offences. Hence he was convicted and sentenced accordingly. When this appeal was called for hearing, the appellant appeared in person, unrepresented whereas the respondent, Republic was represented by Ms. Josh Learned State Attorney. In arguing the appeal, Ms. Josh Learned State Attorney concurred with the submissions of the appellant and supported the appeal for the reasons: one, that there is no direct evidence incriminating the appellant with the two offences. Two, that there is no evidence to prove that the appellant was property identified. Three, that the caution statement was admitted in record without conducting an inquiry. For those reasons, the Learned State Attorney urged the court to allow the appeal. Admittedly, the trial court record clearly indicates that exhibit P I, caution statement which the trial court relied on to convict the appellant was admitted without conducting an inquiry. Page 5 of the trial court proceedings shows that when PW5-E 9350 D/C Emmanuel applied to the court to tender the caution statement to the effect that the appellant admitted to have raped and sodomized the victim (PW1), the appellant objected. This objection should have cautioned to the trial magistrate that the caution statement was involuntarily recorded. Following that objection, the trial magistrate ought to have stopped everything and conduct an inquiry, which was not done. This position was emphasized in the case of Seleman Abdallah and 2 others V. R, Criminal Appeal no. 38 of 2008 (unreported) where the Court of Appeal of Tanzania at Dar es Salaam stated the following: “If that objection is made after the trial court has informed the accused of his right to say something in connection with the alleged confession, the trial court must stop everything and proceed to conduct an inquiry (or a trial within a trial) into the voluntariness or not of the alleged confession. Such an inquiry should be conducted before the confession is admitted in evidence In the present case, after the appellant objected to the admission of the caution statement the trial court ought to have conducted an inquiry. Now, what are the consequences of not complying with the aforesaid procedure? The answer is simple. The statement was improperly admitted. Hence the 1st ground of appeal is allowed. As regards to the issue of identification, the evidence on record clearly indicates that the prosecution key witness was only the victim, Rukia D/O Hussien (PW1). This is because other witnesses did not witness the incident. The evidence of PW1-Rukia Hussein does not demonstrate how the appellant or her assailant looked like or appeared at the time he committed the alleged offence. The description of the appellant that he was short, black with a mark on his face was given by the victim’s neighbour PW2-Ally Kamote who is not a reliable witness on account that he was not present when the alleged crimes were committed. Due to the fact that PW2 was informed of the features of the appellant, identification parade was supposed to be conducted for elimination of mistaken identification. Also bearing in mind the fact that his evidence is hearsay. The similar situation was addressed in the case of Ally Omary Nyange V.R, Criminal Appeal No. 336 of 2009 at Tanga (unreported) where the incident happened in a broad day/light but due to hidden identity, the Court of Appeal of Tanzania emphasized that identification parade ought to have been conducted. The court further stated that:- “In these circumstances it was misdirection fo r the lower courts to hold that the identity of the appellant was proven beyond doubt”. In view of the above decision, since the key witness did not describe the features of the appellant, it was misdirection for the trial court to hold that the identity of the appellant was proven beyond doubt. From the above analysis, the case against the appellant was not proved to the standard required. That is beyond reasonable doubt. I therefore quash the conviction, set aside the sentence and the orders for compensation. The appellant should be released from custody unless he is held for other justifiable cause. It is so ordered. IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL APPEAL NO. 12 OF 2014 (Originating from Criminal Case No. 8 of 2011 in the Resident Magistrate Court of Tanga at Tanga) GALOGALO MUNGA....................... ......................................... APPELLANT VERSUS THE REPUBLIC............................................................................... REPONDENT DATE: 19/9/2014 CORAM: M.N. NASON AG-DR APPELLANT: Present RESPONDENT: Mr. Akyoo State Attorney C/Clerk: Bertha Ms. Akyoo: The matter has come for judgment, I am ready for it. Sgd: M. N. Nason Ag-Dr 19/9/2014 Appellant: I am also ready for the judgment. Court: Judgment is delivered.