20150622 TZHC Dar es Salaam

rl-~~~ \" _J < IN THE HIGH COURT OF TANZANIA ·AT IRINGA DC CRIMINAL APPEAL NO. 44 OF 2014 (Originating from Iringa District Cou,rt_<;:ftW,f:q~J,.<;::_<;1:s~_No. 2 of 2014) · JUMANNE MSUNGU -------------- APPELLANT VERSUS THE REPUBLIC ----------------- RESPONDENT 10/06/2015 & 22/06/2015 JUDGMENT KIHWELO, J. In Criminal Case No. 2 of 2014 in the District Court of Iringa · at Iringa the appellant was charged with an offence of rape contrary to Section 130(1) (2) (e) and 131 of the Penal Code Cap 16 RE 2002. ( ', He pleaded not guilty and after trial he was sentenced to 30 years imprisonnient. He was dissatisfied by the decision of the District Court hence this appeal. The brief backgrolind to this case is that the appellant ari.d the victim one Kadia Chura were living at the same village in Nzihi. It is alleged that on 24 th December, 2013 at around 16:00 hours the 1 victim (PW 1) who was left by her grandmother at Mwanahamis Seminyi's residence was picked by the appellant so that she can escort the appellant who claimed that he was heading to Kidamali to get some fish. PW 1 agreed and left along with the appellant. On · their way to Kidamali the appellant caught PW 1, forced her into the nearby forest, pinned her down and gagged her mouth with his · hands tight to prevent her from raising an alarm for help. However, PW 1 managed to raise an alarm for help which was heard by PW2 who came. for PW 1 's rescue. Upon arrival PW2 witnessed point () blank the appellant who had just raped PW 1 started running away in. the forest and his· effort to arrest· the appellant proved.° futile "'as·· such he decided to help PW 1 by taking her outside the forest and upon arrival at the nearby road he met two women who were passing by and· handed over PW 1 to -them so that they can take PW 1 to the village while PW2 went back to his farm to finish cultivation. The matter was then reported to the Village Executive Officer, the appellant was arrested and arraigned before the police and then the matter was filed before the court where he was charged and later found guilty, convicted and sentenced as he ( i stands today. During the trial the prosecution called five witnesses to prove v. the appellant's guilty while t~e appellant elected to defend himself,.. under oath. The respondent Republic was under the services of Mr. Alex Mwita, learned State Attorney. 2 j The present appeal is moved by a Petition of Appeal which contains four grounds which can be crystalised as follows:- ]. The trial magistrate wrongly received the evidence of the prosecution side which did not give reasons why PWl went to hospital on 25th December, 2013_ wh_ile the incidenc:e is alleged to have occurred on 24 th December, 2013. 2. The trial magistrate wrongly convicted the appellant relying upon the contradictory evidence of PW2. 3. The trial magistrate wrongly convicted the appellant relying () upon the uncorroborated evidence of PWl, PW2, PW3, PW4 and PWS. 4. The trial magistrate convicted the appellant despite the fact that the prosecution failed to prove the case beyond any reasonable doubt. At the commencement of the trial the appellant being a layman did not have much to say he merely requested the court to adopt r his petition of appeal as part of his submissions. Arguing in opposition to the appeal Mr. Mwita submitted that although the present appeal is premised on four grounds but r .essentially there are two legal grounds found in ground number 2, 3 and 4 otherwise ground number 1 will be argued by way of summing up. Mr. Mwita went on to contend in reply to ground 3 t • f..'. r V r,~---~ - - .- - _ _ . _ - - ., . ·t number two which related to contradictory evidence of PW2 and the entire issue of identification that although it was the first time for PW2 to see the appellant but since the incidence occurred in a broad day light at 16:00 hrs PW2 identified well the appellant and this is corroborated by the evidence of PW 1 as such there was no contradiction at all and even if there was· any contradiction that contradiction did not go to the root of affecting this case. Mr. Mwita contended in reply to ground number three that PWl ( ) .. who was .12 .years. at the time of the commission of the -Brime while testifying under oath she was able to identify the appellant who was living with her in the same village and were together for some times as they moved from the village up to the forest where the incidence 1 occurred hence there is no any possibility of mistaken identity. Mr. Mwita went ahead to argue, and very convincingly, that Section 127 of the Evidence Act Cap 6 RE 2002 permits the court to ( convict the accused on the basis of the evidence of a child of tender age after warning itself of the danger of doing so and after satisfying itself that the child is telling the truth. He also submitted that the trial court while convicting the appellant went further to state that the testimony of PWl was corroborated by the testimony of PW2, ' - l PW3, PW4 and PWS and he urged this cou~t to hold that the trial court rightly convicted the appellant. 4 I Mr. Mwita went ahead to cite to this court the case of Seleman Makumba V Republic [2006] TLR 379 in which the Court of Appeal of Tanzania decisively held that; "True evidence of rape has to come from the victim if an adult, that there was penetration and no consent, and in- case of any other woman where consent is irrelevant, that there was penetration. " () Mr. Mwita stressed that in the instant case best evidence is that of PW 1 even if the other witnesses did not testify hence the trial magistrate rightly convicted the appellfnt. Mr. Mwita submitting in reply to ground number three he strenuously argued that the trial magistrate was right in finding that the prosecution had proved its case beyond any reasonable ( doubt since the appellant was properly identified by PW 1 who knew well the appellant before the incidence as they stayed in the same village, the event occurred in a broad day light hence the circumstances were favourable for proper identification as established in the celebrated case of Waziri Amani V Republic !',. [1980] TLR 250. 5 1 , . . . . . . - - - . - - - , - : , .~ - ---- ------- -------------- •'-••-- / - t To further buttress his point Mr. Mwita contended that PW 1 was f I able to mention the appellant as the perpetrator of the crime before I the village Executive Officer PW4 and that the ability of the accused to mention the appellant at an earliest opportunity is an all assurance of the victim's reliability in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry. He cited the case of Marwa Mwangiti & Another V~ Republic, Criminal Appeal No. 6 of 1995 (unreported) where this principle was innunciated. However, I was unable to land an eye to 0 this case which was not supplied to the court. Mr. Mwita briefly argued that Exhibit "Pl" and the testimony of· PW 5 further justified the trial magistrate's finding that the prosecution proved its case beyond reasonable doubt. By way of summing up Mr. Mwita contended that the fact that the incidence occurred on 24 th December, 2013 but the reporting (1 was done on 25 th December, 2013 did not effect the observations and findings which PW5 arrived at as clearly seen in Exhibit "Pl" and that it was not possible to report the matter same day on 24 th December, 2013 and attend hospital because the event occurred late in a day and it was e at the village. l . 0 6 /~. ---~------ / Mr. Mwita finally he valiantly argued that the prosecution managed to prove the case and it was incumbent upon the trial court to convict the appellant as it did. He therefore forcefully urged · this court to hold that the present appeal is devoid of merit and should be dismissed. On the proper view of the evidence on record and having anxiously and carefully considered the submissions and arguments of Mr. Mwita in opposing the appeal, I am of the considered opinion 0 · that the central issues for determination are mainly two·: , 1. Whether or not the appellant was properly identified and 2. Whether or not there was sufficient evidence upon which to convict the appellant. In an attempt to answer the two issues above I have started with the premise that this is the first appeal as such I am entitled to analyze and assess the appeal as rightly stated in the case of Hassan Mzee Mfaume V Republic [1981] TLR 167 that; "A judge on the first appeal should re-appraise the evidence because an appeal is in effect a rehearing of the case." However, in so doing I am aware that I need to remain conscious of the fact that credibility of witnesses is the exclusive monopoly of 7 the trial court which had the opportunity to see witnesses testifying and assess their respective demeanour in court. See D. R. Pandya V Republic [1957] EA 336. To begin with the first issue of identification of the appellant, I think there is some validity and substance in Mr. . Mwita's submission that the appellant was properly identified as per the standards established in Waziri Amani's case (supra). 0 On the evidence on record PWl knew very well the appellant prior to the event as they were . living in the same village and . this was confessed by the appellant himself, the appellant and PW 1 i spent sometimes together prior to that occasion and that the incidence happened in a broad daylight hence there are no possibilities of a mistaken identity. I therefore find that this issue is answered in the affirmative. Now turning to the second issue whether or not there was sufficient evidence to convict the appellant . I wish briefly to address on one aspect that is the testimony of PW2 and that of PW4. Starting with the testimony of PW2 he testified at page 14 of the proceedings that; 8 -t "----- I decided to take the girl and go with her to the road, two women came from the factory of Africa, and I asked them if they know that girl, they answered that they know her, so they take (sic) her to the Village Executive Officer and I went back to my shamba to continue with my activities." On the other hand PW4 testified that; "That on 24th December, 2013 on (sic) 2 :30 pm, I remember, O they came two girls 1:0ho give (sic) an -information that they found Kadia Chura · around and near Kidamcili Secondary Schoot · and they said that she was raped by the accused person ---" I may at this point remark that I find it completely inexplicable why the prosecution did not deem it fit and their duty to call the alleged two girls or women whose names were unfortunately not disclosed by any of the witnesses who came forward to testify. The two women or girls appears to be very prime mover of the events \ that resulted in the reporting· of the rape incidence. It is my view that a number of matters arising in this case that are now left to the imagination would have been clarified if the alleged two girls or women had been called to give evidence. In the present case the evidence of PW4 remains hanging as 8'.. mere hearsay. It was incumbent upon the trial court to direct its mind on this and take into account prior to convicting the appellant. 9 In my respectful op1n1on this is a fit case where an adverse inference should have been drawn against the prosecution case for failing to call those witnesses. This position was clearly stated in the case of Azizi Abdallah V Republic [1991] TLR 71 in which the court decisively held thus; "The general and well known rules is that the prosecutor is " under prima fascie duty to call those witnesses, who, from their connection with the transaction in questions are able to testify on. material facts. If such witnesses are within reach but are not 0 called without sufficient reason being . shown, the court may draw . . an inference adverse to the prosecution." In the circumstances I do not find it useful to discuss further any other issues touching upon the sufficience of the evidence on record which lead to the appellant's conviction as it will only serve an academic purpose which I don't need to endeavour in this particular case. But to say the least this leads me to the inevitable conclusion that the prosecution case was not proved beyond reasonable doubt. I therefore agree with the appellant that, there is substance 1n this appeal. The appeal is therefore allowed. The conviction 1s quashed and the sentence is set aside. The appellant is to be 10 . ' released from pnson forthwith unless he 1s held for some other lawful cause. Ordered accordingly. P. F. KIHWELO JUDGE 22/06/2015'.. Right of Appeal is fully explained. lfl:51~~:~\ P. F. KIHWELO f ; t{});:\ :) JUDGE .1.. ~.. • ,. , J 22/06/2015 • •! ':<~ O,~i;/c;/ 11