20151130 TZHC Mwanza

I .' ._ IN THE HIGH COURT Of TANZANIA AT MWANZA CRIMINAL AP-PEAL NUMBER 101 Of 2015 (Original Criminal Case Number 26 of 2014 of The District Court of Mwanza At Mwanza Before Mpaze Esq, RM) RAMBO DANIEL AND ANOTHER.aa ...... APPELLANT VERSUS THE . REPUBLIC.••••••• . .. •.. • ■ e•• ■■ a ■■ u••••• ■ uaa•••• RESPONDENT . .. 12.11.2015 & 30.11.2015 Matupa, J. JU.DGMENT Appellants herein are Rambo Daniel and Emanuel Joseph. Before-the District Court of Mwanza both appellants were charged and wen~ conv_icted of one count of Robbery_ contr~ry to section 287 A and in addition the said Rambo Daniel was convicted of the offence of gqng rape contrary to section 130 (1.) and (2) read · together with section 131A (1) and (2) of the penal Code and the said·_ Emmanuel Joseph was charged with the offence of rape . contrary to section 130 (1) and (2) (a) and 131(1) all of the Penal Code respectively. · ·· . 1 ' . It was alleged at the trial of this case that on or about the 26th day of January, 2014 at night, the appellants together with other persons who could not be identified burgled into the house · of one Mwogelezi Simon and stole an assortment of items. In the · process of the stealing, the appellants used threats of a bush knifes, clubs and steel bars to take or retain the goods. It was · further alleged that in the course of the stealing, they also had Cqnal knowledge of the co.mplainant's -wife one Anastasia Simon and their daughter, one Neema Kaswahili. It was contended that the lady was raped by all the two accused. persons in turns. The facts of this case_ are mainly supplied by the three. victims, PW1, PW2 and PW3. It is their common testimony that on the material day late at night, as they were asleep, they ·heard a shout from outside their house commanding them to open the door. They couldn't heed. The intruders first stormed into a room· where the daughter was sleeping and went into a rampage, demanding money, some ransacked the room in search for the money, but nothing was yielded. Th~y then turned to the room where the father was sleeping. They commanded him to open the door, or else they would break the wall. The complainants were · adamant. At this point, tt]o?e outside proceeded to brea_k the wa.11. T.he daughter pleaded with her father to open the door in order to 2 save their house. After these threats and a forced persuasion by ) the daughter who happened to have been held by the bandits, the door to the room where the parents were sleeping was opened. The rampage -continued into that room as well. In the meantime, one of those who remained behind raped the girl. As one group of the gang entered the house, they tied the couple's hands back to back by a using a lace, commonly known as "khanga," which they had picked from the room and torn into pieces. They demanded to be given shillings _16,000,000. Since_ they were armed with bush knives and clubs the hosts were · threatened. The gang threatened. that if they were not given the money, they would kill them. The wife advised her husband to give them the money they wanted. The complainant had only_ 4,400,000 at his ·disposal, which Wqs in his purse; he gave them the whole of that money. Still they were not contented, they demanded some more. • According to PWl An·astazia Simon, after the intruders. had received the money and expressed their dissatisfaction, some asked for keys to the shop as· they wanted airtime vouchers. Some went to the shop which was housed in the same building, they rampaged the- whole place leaving the shop merchandise· _3 ) scattered about the shop area. Three of them remained behind. Of the three, one started to rape the wife, after they had ordered the husband to face the wall. After he was done, he proceeded to rape Neema, her Daughter. ·As this person who raped the two of them was raping the daughter another one started to rape the wife, PWl and another one stood by as a guard. What comes from this· account is that the wife was raped twice, and the person who raped Rehema the daughter, also raped the mother. As has been pointed out, it was a1$0 claimed by the daughter that when she remained outside before she was sent to the room where her parents were, she was also raped. All in all, the ladies were raped twice each. All witnesses are claiming· that they were only able to identify the _appellants by using the light available and that, they were acquainted by the appellants who were their neighbours also were their regular .customers; who· usually came to purchase airtime recharge vouchers at their shop. The _appellants were arrested and after an identification· Parade, they were charged as .heretofore, were convicted as charged and w~re sentenced to a ·concurrent term of imprisonment of thirty years on both counts. In addition,·_ they were .each ordered to pay compensation- of 4 i. ,) 300,000/= to the victims upon the completion of their respective sentences. Aggrieved with t_hat decision of the trial court, the appellants have come to this court complaining that the lower trial court did not do them justice. They have filed separate petitions of appeal. Rambo Daniel has preferred the following petiti_on of appeal, which contained four grounds as follows. 1. The trial court erred in law and fact in convicting the appellants based on the evidence of the identification parade which was conducted in contravention of the acceptable legal requirements. 2. The trial court erred in law and fact in convicting the appellant for _both off~nces of armed robbery and rape on testimonies of PWl, PW2, PW3, AND PW7 on account that (?) the said witnesses were not credible 3. That the trial court erred in law and fact in convicting the appellant based on the evidence of visual identification which. · ~as not water tight. 4. That the trial magistrate erred in law and on the fact in ~onvicting the appellant for_ the offence of armed· robbery 5 .) without the alleged stolen exhibits found in his procession being tendered and so adduced in evidence during the trial. On the part of Emmanuel Joseph, _he filed a Petition of appeal that contained a total ·of nine (9) grounds of appeal. The substance of the grounds is that one, he impeached the unfavourable identification, two, he has complained against an irregular Identification Parade. Three, took issu·es with the weak account upon which stet basis for stet the claim of acquaint ship was made; Four,. weak basis for a conviction of the· offence of . rape; He then joined hands with the first appellant ·in the claim that his PF3 was admitted without the doctor being summoned .. He claimed that he was arrested by a mob of persons who did not know the reason for the arrest. Before this court the first appellant was represented by Mr Mutalemwa learned advocate and the second appellant appeared in person, he did not have services of· a counsel. The Republic was represented by Ms Angelica Nchalla, Senior State Attorney. ·Mr Mutalemwa started by faulting the Identification parade which was conducted by the police for the reason that it was · marred with irregularities, pointing .in particular that the parade commander did not record in the register how precisely, the 6 . ~, identifying witnesses made the identification nor did he ask the .J accused persons if at all they were satisfied by the way the parade was conducted. He submitted that in the absence of credible visual. identification, it was not correct to convict the appellant. The learned counsel also took issues with the medical report. He informed the court that when PWl gave her evidence regarding the rape, she· produced a medical report in a form· of a PF3, upon the receipt of which the trial cou_rt ordered that th_e medical doctor who· prepared it be called to give evidence, ·in terms of section 240 of the CPA. However, until' the close of the prosecution that w~tness was not called. He urged the court to draw ·an adverse inference on the prosecution for the failure to call the doctor. He also reminded· the court that the prosecution was not able_ to demonstrate that there was anything close to · gang .rape on the evidence on the record. ·- As regards the charge of robbery with· violence, the counsel had ·it that the evidence on record did not demonstrate the use of force for the purpos~ of taking or retaining the alleged. stolen properties. After all nothing alleged to have been stolen was recovered.-· 7 ) The second appellant on his part did not wish to add anything to his grounds of appeal. Mr Nchalla learned Senior State Attorney. supported the . conviction and sentence of both .appellants on all counts·. She contended that. there was ample light from a large flash light torch. Given the small size of the room, she contended that the . ~ . victims could easily identify the appellants. She went on to contend that, even if the impugned identification parade was discounted still the evidence. on record was enough to sustain the conviction. I have given close consideration to the contending submissions of the respective counsel. The central issue here evolves on identification by the witnesses. This issue will make or unmake the case. On this issue of identification, it is common ground that _this . . incident occurred at night.· Definitely the circumstances for identification were not conducive. It therefore becomes pertinent to scrutinise the evidence closely, in order· to get the comfort that the appellants were convicted :on the basis of solid evidence of identification. The complainants have attempted to explain the circumstances of identification. and the source of light. To start 8 ;J with the daughter it was her evidence that the intruders forced the door of their room first. Soon they entered the room, they demanded money from them. She was not asked in court how many they were in the room. However, it would appear that when the intruders realised that the girls could not be of help, they asked them the whereabouts of their parents. When they were shown the room, they left this witness behind. While there, she· was raped by one of the people who remained with her. Candidly; this witness admits that it was dark outside c;ind in their room; she was therefore unable to identify her rapist. She was then taken to the room where her parents were held, apparently after she was raped, she found them tied up· with their hands back to back. She was ordered to sreep by her father's · head. It would app~ar that the people who were in the room demanded airtime vouchers hence, they ordered the father to give them keys to the shop .. In the meantime, the mother was · raped. It is of essence that, up to this stage, then~ was no identification of any of _the culprits. that · was made. The identification came a short while later. This girl was- only able to identify the appellants by description as their regular customers and neighbours._ 9 ) Next is the evidence of the mother, Anastazia Simon. According to her testimony which is not at variance with that of her daughter, the intruders were in two ·groups, the one that entered their room and the other that remained outside. The group that entered their room is the one that came to demand the money and later airtime vouchers. Again, this witness does not claim to· identify anyone who remained outside.· She clai·med to have identified two persons who raped her. She claimed that they were her regular custome_rs. She also claimed that she was able to identify them by using a four battery flash torch. There is no description of intensity of the light not even the positioning of the torch. Mongezi Simon PW3 claimed that he was able to identify two of the e;1ssailants by using· a four battery flash torch. His evidence has the same shortfalls as his wife and the daughter. It is against this background that we have to evaluate the identification parade. The parade was prepared to enable these - three witnesses identify persons they daimed to see during the incident that. took place at night, und·e·r indeterminate lighting circumstances. May be the manner the appellants were arrested may give us clue. · 10 -i ...,, None of the complainants can account for the arrest. All that comes from them is the reporting to the police, treatment at Sekou Toure hospital and the subsequent summons to attend the identi_fication .parade. However, it is the testimony of Emanuel Jane Maseko PW7, chairman of the street vigilantes that, he was informed of the robbery the same night and they reported the matter to the police, who responded promptly. While at the scene, the· complainants described their assailants. The description that was given replied to some people · who were known. The street vigilantes set out for them at their homes. He remembers_ they werit to the home of Emanu~I th!= second appellant herein. They didn't find him at home; his wife· told them that her husband had travelled. Two days later, the appellants were apprehended by people who suspected them. · The witness only was informed of the - arrest, as he was not around. When he went to the scene, he · found the two appellants while under arrest, and were severely -assaulted. Also present at the place, was PWl the first complainant. It would ·appear from the testimony of this witness, after the appellants were arrested, she was called to identify · 11 __ ) them. When she confirmed, they were subjected to a severe beating before they were rescued by the police. It was in this background was the Identificat_ibn parade was ·conducted.· We are guided by the established ·principles guiding the Conduct of Identification parades. The Court of Appeal Of Tanzania in the case of Francis Majaliwa Deus and others versus The Republic er~ App. No 139 of 2009 C. A. {Mwanza Registry} adopted the rationale for conducting an Identification Parade a_s expounded in an Indian case of _Amit Singh Bhikamsing Thakur vs State of Maharashtra {2007} INS 10 where the court held as follows "... The main object of holding an identification parade is to test the memory of the witness based on the first impression and also to enable th£! prosecution to decide whether all o_r any of them could be cited as eye witnesses to the crime... [This] becomes necessary to eliminate the possibility of the accused_ being shown prior to the test identification parade. " · In the present case, it is said that PWl. was present when the appellants were arrested and they may have been -shown to her. Her participation in the parade was therefore moot. It is not apparent that the othe_r two witnesses - the daughter and the father, were also present- at the scene, as 12 _) the appellants were arrested. It has not been claimed that they were. They themselves have asserted that, after treatm'ent, the next time they he-ard of the police was when · they were summoned to participate in the identificaUon parade. It has been complained that the conduct of the parade was fraught with irregularities as to make it unreliable. Counsel for the first appellant registered . two basic irregularities. One the failure to record t~e manner the identification witnesses made the identification and the failure by the parade commander to ask the appellants if they were ' satisfied with the manner the parade was conducted. To answer these questions, we have the evidence of two witnesses. The parade commander one Insp. Mbogo PW4 and Erick Pauline PW6. According to the parade commander, he claimed that he explained to the appellants . their right to have t_he representation of their advocate or relative. They declined. He also ex.plained to them their· right to change their clothes. They also declined. It is not apparent though, if he addressed . them ·of their right to. express -themselves on their satisfaction 13 ) with the conduct of the parade. This account is confirmed by PW6 a member of the parade, who added that as the appellants were brought at the parade, they were asked to choose the positions· of their own desire.· And that- the witnesses pointed the appellants by the shoulders at the front and from behind. It is not apparent from this witness that the appellants were told the1 r rrght to comment if they were satisfied with the conduct of the parade. In . the case of Francis Majaliwa above the court distinguished the basic· requirements that go to assurance of · fair identification and the rest. The right to comment on the proceedings of the parade in this case was not basic, given the evidence of PW6. According to this witness, who was picked at the police s~ation as he was on another business.not related to the presentcase, he described how the parade was conducted; According to his testimony, the appellants chose . their location, were reminded of their right to call -witnesses of their own, they were asked· to. change their attire etc. after the parade this witness left. Nevertheless, we have held above that one of the witnesses had-the opportunity to see the· appellants ·as they . 14 ) were arrested. Admittedly, the appellants did not change clothes. This witness being the member of the family must h9ve been in the company of the other identifying parties for all the time after the arrest until the parade was conducted. She also participated in the identification and was in the company of ·the other identifying witnesses immediately before they went to the parade. It is highly doubtful if this witness di~ not disclose to the other identification witnesses, the identity of the appellants, for example, the attire they were dressed at the time of their arrest which as it were, was the same they were dressed at the parade. From all the observations we have made above, we entertain a doubt if at all the identification was foul proof. This case was basically anchored on the identification parade. The complainants admitted that they didn't have a clear knowledge of their assailants. They demonstrated ·a haze recollection and gave a rough description of them. The parade that would provide ·a bridge of identification seemed to leave a demonstrable doubt. I must admit that under the circumstances of this case, I cannot say that the parade was successful. - 15 In the upshot, since the identification was doubtful, on ) this ground alone, this appeal succeeds. The conviction cannot be allowed to stand, it is hereby quashed and· the sentence. is ·set aside. Appellants shall be· released from custody, unless they are otherwise lawfully held. ·16 Date: 30.11.2015 Coram: Hon. S.B.M.G. Matupa, J Appellant: 1st present . 2 nd present Respondent: Angelina Nchalla (Senior State Attorney) for the Republic the Respondent B/C: Shida MS Angelina Nchalla Senior State Attorney: This appeal is scheduled for judgment. . We are prepared . for the judgment. S.B.M.G. Matupa Judge 30,,11,,2015 Court: This judgment was read in chambers in the presence of the appellants and in the absence of their advocate. MS Angelina. Nchalla Senior State Attorney for the respondents . was also present:· 17 .