20170612 TZHC Dodoma

''ORIGINAL'' IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 29 OF 2017 (Originating from the District Court ·of KIOMBOI Criminal Case No. 01 of 2015, Hon. C.P. SINGANO, RM) KITUNDU NAKEMBETWA ................................... APPELLANT VERSUS THE REPUBLIC ............................................ RESPONDENT JUDGEMENT 12TH JUNE 2017 Mansoor, J: This appeal arise out of the judgment dated 25 November, 2015, - passed by the District Court of Kiomboi in Criminal Case No. 1 of 2015, by which, the Appellant was convicted of the offence 1 --- -·----~ --·------------- ''ORIGINAL'' charged of rape contrary to Section 130 (1) and (2) and Section 131(1) of the Penal Code, Cap 16 R: E 2002. It was alleged by the prosecution that on 1 st day of January 2015 3.00 hrs. at Misigiri Village within Iramba District in Singida Region, the Appellant did have carnal knowledge with one Devotha d/o Adolf,_11_girl_of l5 years of age. The Appellant was found guilty of the offense charged; he was convicted and sentenced to Thirty Years Jail Sentence, and to pay the victim compensation of THz 500,000. - He was also sentenced to twelve strokes of cane. It was alleged by the prosecution that the victim was about 15 years of age at the time of incident. Although the age of the victim was not established beyond reasonable doubt as no birth certificate was presented in court to establish her age. The victim has been examined as PW 1. She has deposed that on 1 st January 2015, her and her parents were travelling from Bukoba heading to Dar es Salaam, and they stopped over at Misigiri, and slept in a guest house. Her parents slept in a different room, 2 ---~-----·-- ·····- --- - . - "ORIGINAL" and she slept in a room alone. The appellant sneaked into her room and raped her after extending threats. He also told her that she should not raise alarm as he would kill her. She said, the appellant escaped after the incident. She said, she recognized the appellant since the lights were on, and that the appellant was wearing a bed sheet. The bed sheet color was ---- ~--- ___ khakiwith b1ack_flp_wers. __ PW2 was --- the --. watchman - - - - - 4 - - .. who said, he ----·-·-·-- ---- allowed a Youngman to go to the rooms as he wanted to use the toilets, and that at around 4.00 am he saw the appellant running away. PWl says she did not lock the doors. The police apprehended the appellant on the road and that the PWl recognized him. PW2 also recognized the appellant since he said he knew him before the incident. The evidence of PW2 is shaky and untrustworthy, as being a watchman he was not supposed to allow strangers to enter into guest rooms at 3.00 am at night. The premises he was guarding was a guest house, the guests checks in through the reception, and they are given rooms and lock keys. The guests have a reasonable expectation of not 3 ''ORIGINAL'' getting injured as the guest house owner and his staff, are responsible for maintaining a relatively safe environment. In this case, the appellant did not break in the room of the victim, the owner allowed him in, although he was not a guest in the premises. He allowed him in at 3.00 pm at night to use the guests' toilet. This is absurd. The owner of the guest house· should .have been held liable for aiding the in<;ident to happen. Again, the door of the victim was not locked. This raises a lot of doubt in the mind of the court. Unless you lock your doors and gates, you are considered to have given an "implied invitation" to members of the public to approach your door on common errands - for example, to speak with you, or even harm you. It was not clear as to why the victim left her door open in the middle of the night. For this reasons, this court therefore cannot consider the evidence of PW2 as corroborative evidence of PW 1 on identification of the appellant, as the watchman who testified as PW2 could have invited someone else but decided to mention the appellant, for his own unknown reasons. 4 "ORIGINAL" Ms. Luwongo, the State Attorney who appeared for the Respondent supported the appeal on the ground of insufficient identification of the appellant. She referred this court to the case ofWaziri Amani vs. R (1980) TLR page 250, also the case of Masumbuko Charles vs. R, Criminal Appeal No. 39 of 2000, Court of Appeal sitting at Dar es salaam (unreported). In the case Waziri Amani, the appellant was acquitted since there was no proper identification, as the source of the light and the distance of the person identified him was not proved. I agree with the Learned State Attorney that none of the prosecution witnesses were able to identify the Appellant. Based on decision of the celebrated case of Waziri Amani v. R [1980] · TLR 250 at page 252, "in that visual identification is the weakest kind of evidence and the most unreliable, and that Courts should not act on it unless all the possibilities of mistaken identity are eliminated". It is on record that PWl, the victim, was attacked, the person attacking her covered himself with a bed sheet so the victim did not have a chance to interact with the accused and that the victim did not know the accused before 5 ''ORIGINAL'' the incident. The victim did not have an opportunity to notice· the distinctive features of the accused which would have lend assurance to her testimony in court, in fact she did not mention the source of light, as held in the case of Masunibuko Charles (supra), PWl was required to elaborate on the nature of the light in question. She did not say whether the light came from a wick ---· -----· lamp, a candle, a lamp, a fluorescent tube light or a bulb. She did not also say whether the light was bright enough to enable her identify the appellant properly." No test Identification parade was held before the trial. In these circumstances, the conviction of the accused, on the basis of sworn testimony of witnesses identifying for the first time in· court without the same being corroborated either by previous identification in the test identification parade or any other evidence, is not enough to hold that the accused was involved in the commission of the offence. PWl did not sufficiently described and identified the accused leaving doubt in the mind of the court regarding his involvement and the trial Magistrate had erred for basing the conviction without the same being 6 ''ORIGINAL'' corroborated by any other evidence and, accordingly, conviction of the accused is quashed. Consequently, and based on the above, this appeal 11.as merit and is allowed; the conviction is quashed and the sentence is set aside. The Appellant is ordered to be released from prison unless his c_9nti_µu~d ~onfinement is related to other lawful cause. It is ordered accordingly. ~ L. MANSOOR JUDGE 12th JUNE 2017 7 "ORIGINAL" Judgement delivered in Court today in the presence of the Appellant, . ~_r...... State Attorney for the Respondent Republic and Mr C.A.Chali the Court Clerk. ~ L. MANSOOR JUDGE 12TH JUNE 2017 8