20191004 TZCA Tanga

IN THE COURT OF APPEAL OF TANZANIA AT TANGA rrORAM: MWARIJA, J.A., WAMBALI, J.A. And KOROSSO. J.A.^ CRIMINAL APPEAL NO. 490 OF 2017 MUHIDINI SELEMANI @ NGEREZA................. ............................ APPELLANT VERSUS THE/REPUBLIC........................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania At Tanga) (MasoucLJL) dated 8™day of May, 2017 in Criminal Appeal No. 04 of 2017 JUDGMENT OF THE COURT 27thSeptember & 4th October, 2019. KOROSSO. J.A.: The appellant Muhidini Selemani @ Ngereza was arraigned, tried and convicted by the District Court of Lushoto at Lushoto on a charge of rape contrary to sections 130(l)(a) and 131(1) of the Penal Code, Cap 16 Revised Edition, 2002 (the Penal Code). The particulars of the charge alleged that he did have carnal knowledge of Fatuma Ramadhani, a woman of 25 years of age without her consent. At the trial court, the appellant denied the charge, prompting the osecution to feature five witnesses namely, Fatuma Ramadhani Bena, the l victim (PW1), Amina Ayubu (PW2), Nasri Adam (PW3), Ramadhani Ngereza (PW4) and David Ramadhani Ngereza (PW5) and John Msingwa (PW6) a clinical officer who also tendered the PF 3 which was admitted as Exhibit P.2. There was also a coat admitted as Exhibit PI alleged to have been found at the scene of the incident and to belong to the appellant. The defence had two witnesses, the appellant himself (DW1) and Bihusi Muhidin, the appellant's wife (DW2). PW1 recounted her recollection of what transpired on the fateful day stating thaton the 16th August, 2016 while in her room asleep in her house, around 1.00 hours,she was invaded by someone who came to her, grabbed her neck, and while she grasped for breath, she felt her legs being pulled apart and the attacker inserted his penis into her vagina. That she had slept with a khanga only without underwear. That during this attack she had limited energy and awareness of what was transpiring came when she heard PW2 calling her although she could not reply. PW2 then found matches and lighted the kerosene lamp to alight the room, and that it is then that they realized the person who had invaded and was raping PW1 was the appellant. That PW2 then queried aloud why the appellant (her brother) was doing such an act to PW1 but there was no response. A short 2 while later, the appellant went to the kerosene lamp and tried to put off the light and succeeded then he started running away but PW3 a neighbour who came with a torch also identified the appellant and asked him why he did such an act and put him under restraint. Thereafter the ten cell leader arrived and during this time, the appellant managed to escape. That later they found a grey coat (Exhibit PI) with documents which upon perusal they concluded belonged to one Miraji Hassan, the appellant's uncle. Thereafter, PW1, PW3, PW4 went to the house of the appellant's first wife who lived nearby. When the appellant's first wife was asked on the whereabouts of her husband (the appellant) she told them, that he was at his second wife's house. They moved there and found the appellant's second wife who told them the appellant was not present and that he had left for Bumbuli to attend on a case. PW1 also revealed that despite the fact that the appellant had invaded the house, the door was not broken saying at page 13 of the record of appeal; "/ don't know how he opened the door since we use local bawabaf’. PW2 testimony supported PW1 evidence on being attacked and raped by the appellantand PW3 testified on arresting the appellant at the scene but that he later escaped. The 3 doctor (PW6)'stestimony was that on the 16th of August 2016 he was in hospital attending patients, and one of the patients he attended to was PW1 who complained on being raped. That he examined her and found sperms of a man in her sexual organ and that there was penetration, thereafter he treated PW1 and issued a PF3 which was tendered and admitted as Exhibit P2. The appellant denied the charges and his defence was that he was not at the village and therefore not at the scene of crime when the offence was committed, alleging that he was at Maramba for casual work from 10/08/2016 to 31/08/2016. That it was on 31/08/2016 when he went back to the village and reported at Bumbuli Police Station, went back and came back at the police station on the 8th September, 2016 when he also met PW1 there and then he was arrested. He also alleged that the charges have been fabricated due to a dispute he had with PWl's in-laws, over a shamba. The first appeal to the High Court was dismissed, hence this second appeal. This appeal is rested on the following six grounds of grievances:- 1. That the appellate Judge erred by not looking properly sit the contradictory evidence as PW1 and PW2 said that they saw and identified appellant while the act o f rape was committing in their bedroom during night. But they could not tell the court on how the appellant got in their house as the door was dosed inside by padlocks known (Bawaba) and was not broken. 2. That, also the Appellate Judge erred by not looking on the patent contradiction as PW3 (named Nasiri) said that PW4 who is ten cell leader came at the scene. But in responding court's question he replied otherwise that the ten cell leader was not arrived at the scene o f crime. 3.-That, the- prosecution did not establish the offence with which the appellant was charged with namely rape. 4. That, a total six prosecution witnesses no evidence o f the investigator o f the present case or police officer from Lushoto police station in order to confirm that the incident o f rape allegedly was reported to the police by according to procedure o f criminal law section 59(1)(2) o f the CPA Cap 20 RE 2002 and then investigation, however PI and P2 tendered and PW1 and PW6 a ll the prosecution evidence their allegation were not verified by investigator o f the present case. 5. That, both the court's below erred in finding that such an offence was established beyond reasonable doubt. 5 6. That, the trial court magistrate erred in iaw and in fact by adjudicating the appellant through fabricated case and fabulous evidence. On the day of hearing of the appeal, the appellant appeared in person being unrepresented, while for the respondent Republic, had the services of Ms. Maisara Mkumba, learned State Attorney. The appellant prayed for his written submissions to be adopted and opted to await amplifying his grounds of appeal until after hearing the submissions from the learned State Attorney. Ms. Mkumba at the outset stated that the respondent Republic was in support of the conviction and sentence imposed the appellant by the trial court and confirmed by the first appellate court. She then informed the Court that shehas discerned that of the six grounds of appeal fronted by the appellant, it is only one ground of appeal that is, the 1st ground which is competent,whilethe 2nd, 3rd, 4th, 5th and 6th grounds are new,which were neither raised nor decided by the first appellate court. Arguing that the l^ground of appealthat challenges the finding of the trial court and confirmed by the first appellate court that the appellant was properly identifiedis an issue considered and determined by the first appellate court. The learned State Attorney urged the Court to do away with the five grounds which were not raised in the first appellate court, arguing that it is a settled position as held in the case of Godfrey Wilson vs. Republic/ Criminal Appeal No. 168 of 2018 (unreported), that:- " the Court w ill only consider and determine grounds o f appeal which were addressed in the lower courts. Ms. Mkumba thus entreated that the 2nd, 3rd, 4th, 5th and 6th grounds of appeal be struck out. The learned State Attorney then continued to address the 1st ground of appeal, maintaining that the appellant was fully identified by the prosecution witnesses (PW1, PW2 and PW3), and that despite the fact that the incident took place at night in conditions which were unfavourable, the appellant was known to the witnesses prior to the incidence, as evidenced by the testimonies of PW1 and PW2, who testified that it is the appellant whom they saw at the scene of crime on that night. With regard to adequacy and intensity of light to facilitate unquestioned identification of the appellant, the learned State Attorney urged that there is the evidence of PW2 who testified that she lighted the Kerosene lamp which provided adequate light to enable proper identification of the appellant. She also cited the case of Abdallah Rajabu Waziri vs. Republic, Criminal Appeal No. 116 of 2004 (unreported), where it was stated that where the witness knew the accused prior to the incident, a light from a match is adequate. The learned State Attorney argued that in this case, the witnesses had a kerosene lamp and thus one cannot say the light was not adequate. The other issue which the learned State Attorney wanted to be considered was the fact that the evidence from prosecution witnesses is that the appellant was arrested by PW3, who used a torchlight to identifyhimand later apprehend him although a short while later he managed to escape. It was therefore the respondent Republic contention that the appellant was properly identified as there was adequate light, and that also to be considered is the time they managed to observe the appellant. That although this fact did not come out clearly from the evidence but taking in the evidence that the appellant was under restraint for some time, thus there is no doubt thatthe witnesses spent some time with him. That for PW1 and PW2 they also spent some time with the appellant in the room where the appellant committed the charged offence. Therefore, she contended that the charge against the appellant was provedbeyond reasonable doubt. 8 On the part of the appellant from his ground of appeal as amplified by written and oral submissions, he challenged the assertion that he was identified by the prosecution witnesses, considering the time the alleged offence is stated to have been committed, that is, l.OOhours. The other issue to consider he contended was the fact that there was no evidence provided to show the house/roomwhere PW1 lived was broken in, so how could he have, entered the house as alleged by prosecution witnesses, he asked. The appellant also urged the Court to consider the inconsistencies in the testimonies of the prosecution witnesses in his favour such as, when he was arrested. He submitted that while the prosecution facts stated in the trial court during the preliminary hearing, as recorded in the memorandum of facts not in dispute, allege that he was arrested on the 8th October 2016 as seen at page 5 of the record of appeal, PW5's evidence at page 21 of the record of appeal reveal that he was arrested on the 1st September, 2016. He contended that the charges are framed against him because of a dispute over a shamba which existed between him andPWl's parents-in-law. With regard to the prosecution prayer that some of the grounds should not be considered being new grounds not dealt with at the first appellate court, the appellant stated that he left this to the court to determine. Having heard the rival contentions amplifying and responding to the grounds of appeal before us and the referred to cases, we find it imperative to first address the assertions by the learned State Attorney that the 2nd, 3rd, 4th, 5th and 6th grounds of appeal are grounds which were not dealt with by the first appellate court and that the Court should consequently refrain from considering and determining the relevant grounds of appeal by virtue of a settled principle of law, that the second appellate court should not consider and determine grounds of appeal not raised or decided in the first appellate court. For the learned State Attorney it is only the 1st ground of appeal which deserves consideration by this Court and relied on the holding in the case of Godfrey Wilson vs. Republic(supra) to cement this contention. On the part of the appellant he did not have much to say on this issue, leaving it to the Court to consider and guide accordingly in the interest of justice. There is a litany of decisions of this Court which have addressed this issue on whether the Court can decide on a matter not raised in and decided by the first appellate court as held in Galus Kitaya vs. Republic, Criminal Appeal No. 196 of 2015 (unreported), and also in the case of 10 Hassan Bundala @ Swaga vs. Republic, Criminal Appeal No. 386 of 2015 (unreported) which held that:- "... I f the High Court did not deal with those grounds for reason o f failure by the appellant to raise them there, how will this Court determine where the High Court went wrong? It is now settled that as a matter o f general principle this Court will only look into matters which came up in the lower court and were decided; not on matters which were not raised nor decided by neither the trial court nor the High Court on appeal'. This, being the position,, our duty nowJs to scrutinize.the relevant grounds of appeal and make a determination on whether or not these are grounds which are new andwere not raised or decided in the first appellate court. The 1st ground of appeal addresses credibility of witnesses for the prosecution particularly PW1 and PW2 and also identification of the appellant. The 2nd ground addresses alleged contradictions in the testimonies of PW3 and PW4 on what transpired at the scene of the crime and the 3rd ground of appeal contends that the prosecution failed to prove the charge of rape against the appellant. The 4th ground of appeal was on failure by the prosecution to call an investigator to testify bearing in mind the circumstances of the case. The 5thground of appeal challenge the holdingsof the trial and the first appellate courts that the charges against the appellant were established beyond reasonable doubt. Whereas the 6th ground of appeal states that the trial court adjudicated a fabricated case against the appellant. The first.appellate court was confronted with four grounds of appeal. The 1st and 2nd grounds of appeal challenged the identification of the appellant at the scene alleging failure of the prosecution to establish the intensity of light. The 3rd ground of appea(controverted failure of the prosecution to call one Miraji Hassan (alleged to own a coat found at the scene of crime with his documents) and the 4th ground contending of failure of the trial magistrate to properly assess and evaluate the defence evidence. Our critical examination of the recordhas revealed that, it is only the 1st ground of appeal which in effect addressed the challenge on the identification of the appellant. Therefore, with the above considerations, 12 we agree with the submissions by the learned State Attorney that the 2nd, 3rd, 4th, 5th and 6th grounds of appeal are new grounds, and that it is only the 1st ground of appeal which emanates from the first appellate court. We therefore shall not consider the 2nd, 3rd, 4th, 5th, and 6thgrounds of appeal for the reason stated above, and there are consequently struck out. Considering the 1st ground of appeal in effect disputes the identification of the appellant on the material day alleging that when the testimonies of PW1, PW2 and PW3 are considered that, the alleged rape against PW1 occurred around l.OOhours, in darkness,at the time the witnesses were sleeping. Also PW2 testimony that when she heard her sister in law (PW1) roaring soundsshe had to fumble with her hands to count the legs in the bed PW1 was sleeping and found four legs, and that it is then that she looked for matches to light up a kerosene lamp to put light in the room and then she saw the appellant raping PW1. It is difficult to understand how he could have been properly identified under those circumstances. In this regard, it is clear that PW1 and PW2 were abruptly woken up, in shock and panic without a doubt, we asked ourselves whether under these circumstances, the appellant was properly identified at the scene of 13 crime.Among leading authorities on visual identification is the case of Waziri Amani vs. Republic [1980] TLR 250, where the Court while deciding on the question of identification said:- "The first point we wish to make is an elementary one and this is that evidence o f identification, as Courts in East Africa and England have warned in a number o f cases, is o f weakest kind and most unreliable. It follows therefore, that no court should act on evidence of visual identification unless a ll possibilities o f mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely water-tight". The Court thereafter went on to underscore what conditions should be considered "14/e would for example, expect to find on record questions such as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night­ time, whether there was good or poor lightning at the scene; and furtherwhether the witness knew or had seen the accused before or not These matters 14 ' are but a few o f the matters which the trial judge should direct his mind before coming to a definite conclusion on the issue o f identity." While we are alive to the fact that PW1 and PW2 alleged to have known the appellant prior to the incidence under scrutiny, a fact also submitted by the learned State Attorney and also not denied by the appellant who testified that on the 8th October 2016 he met with PW1 at Bumbuli Police Station. It is important to be cautious on this and not to take it at face value. The Court in Issa Mngara @ Shuka vs. Republic, Criminal Appeal No. 35 of 2005 (unreported) expressed such caution stating that:- "... even in recognition cases where such evidence may be more reliable than identification o f a stranger,, dear evidence on sources o f light and its intensity is o f paramount importance." In Hamisi Ally @ Kazigwa vs. Republic, Criminal Appeal No, 66 of 2003 (unreported), the Court held that, where the victim and the assailant are well known to each other and the offence is committed in close proximity then moonlight can suffice for positive identification. In Yordan Ng'sang'ise and Another vs. Republic, Criminal Appeal No. 212 of 2010 (Unreported) the Court considered that, correct identification can be 15 facilitated .by, a zero distance, between the witnesses and the appellants, particularly at the time of rape, and if the witnesses knew the appellants before the incident and mentioned them at the earliest possible opportunity. Thus importing the guiding factors highlighted in the cited cases to the present case, PW1, PW3 and PW3 all stated that the incident took place at night and therefore when it was dark. We are aware as argued by the learned State Attorney that, the above mentioned witnesses stated that they identified the appellant, and PW1 and PW2 testified that they saw and caught the appellant in the bedraping PW1 who was sleeping. PW3 stated that he arrested the appellant while PW5 searched the coat and found documents belonging to Miraji Hassan, alleged to be the appellant's uncle. But despite this there was no evidence on the intensity and brightness of light to facilitate better identification and there was no evidence related to description of special items or marks that the appellant had that night. From the evidence the appellant it seems was silent all the time. The evidence states he was found raping PW1, was he dressed or undressed when he was caught? We would have expected such evidence to come out, and also to assist us to link with the said coat found at the scene. 16 Noteworthy to observe is that, whilst we are aware of the concurrent finding of facts by the two courts below on the evidence of the prosecution witnesses on the incident under discussion and especially identification of the appellant and the holding that PW1, PW2 and PW3 are credible witnesses, and also holding that the evidence of identification of the appellant was buttressed by the fact that he was well known to the witnesses, while the appellant's defence although considered was rejected by both courts in the light of what they found to be the credible prosecution version.On our part, taking the chain of events in this case, such as the delay in the arrest of the appellant while there is evidence that he was named by PW1, PW2 and PW3 as the one who committed the offence of rape against PW1, the conduct of PW1 during the incident also leaves a lot to be desired. PW1 testified that she felt someone grab her and inserted his male organ into her female sexual organ and was so perplexed but there was no evidence on whether she raised an alarm. The chain of events reveal unfavourable conditions for identification, which give room for possibility of mistakes in identification. All witnesses stated that they never heard the culprit say a word. No witness testified on how the culprit was found, and in what state he was found in. We find that 17 the prosecution failed to provide evidence which will eliminate possibility of mistaken identity for the appellant having regard to the fact as stated above, the quality of identification cannot be said was impeccable. The evidence leaves a lot of unanswered questions that is doubts in the prosecution evidence. There is the issue of Miraji Hassan being named as a person whose documents it is alleged were inside a coat found at the scene of crime. It is unfortunate that the prosecution did not find it important to call him as a witness in this case. We are aware of the provision of section 143 of the Evidence Act, Cap 6 Revised Edition 2002 (Evidence Act) stating that there is no particular number of witnesses required by law to prove any fact. Despite the above position the legal principle governing when a court is entitled to draw an adverse inference to the prosecution was well articulated in Aziz Abdallah vs. Republic, [1991] T.L.R. 71 where this Court heid:- " ...the general and well known rule is that the prosecutor is under a prima facie duty to call those witnesses who from their connection with the transaction in question, are able to testify on 18 material facts. I f such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution." Thus while the prosecution have the discretion to decide which witnesses to call so as to give evidence in support of the charge, the said witnesses must be those who are able to establish the involvement of the appellant in the commission of the offence, meaning they must be material witnesses and material witnesses are expected to be called to testify. We find in this case, Miraji Hassan was a material witness who should have been called and helped to explain on the coat found at the scene of crime which had his documents. At the same time, bearing in mind the obtaining circumstances in this case, we are also concerned that no police officer/investigator was called to give evidence regarding the case, especially in light of some open spaces in the prosecution evidence. The ability of a witness to mention the culprit or assailant at the earliest possible moment is an assurance of his reliability. The Court has applied this principle in a number of decisions. There is Minani Evarist vs. Republic, Criminal Appeal No. 124 of2007 (unreported) in which, the Court referred to an earlier decision of 19 Swalehe Kalonga & Another vs. Republic, Criminal Appeal No. 45 of2001 (unreported), we observed:- "... the ability o f a witness to name a suspect at theear/iest possible opportunity is an all- importantassurance o f his reliability." In the appeal under consideration, there was no one to inform the Court why, if PW1, PW2 and PW3 had informed the village leaders and the Police that they identified the appellant has the one who raped PW1, then why wasn't he arrested on the 30th August 2016, where according to his testimony he reported at Bumbuli Police Station. Also why was the appellant arrested on the 8th of September 2016, it is also the date of arrest of the appellant recorded in the memorandum of facts not in dispute at the preliminary hearing. If this is the case, and that the prosecution witnesses had named him as the culprit to village leaders immediately after the commission of the offence, then why did it take so long for the appellant who it is alleged was known to be arrested? There was no evidence to contradict the appellant's evidence related to his visit to the police or the date he was arrested and we are thus left with his testimony alone on this fact. 20 An investigator would alsohave assisted in informing the Court whether the door to the house/room where PW1 slept was broken or intact, and thus brought to light on how if it is true as testified by the prosecution witnesses, the appellant had entered the house. Without this evidence the Court is left unable to fill those blanks. There is also no evidence from PW1 on whether she went to the hospital apart from the evidence of PW4 who testified to have attended her and the Exhibit P2. PW4 testified that the victim was brought by a police officer who unfortunately was not called as a witness. We are thus left with unanswered questions. Taking the evidence in totality we are of the view that had the trial and appellate court carefully directed themselves to carefully assess the defence evidence they would have found it raised doubts on the prosecution evidence. Doubts which were left unanswered. We think that the trial and first appellate courts misapprehended the evidence on record and came to a wrong conclusion that the prosecution proved the case beyond reasonable doubt. Consequently, for reasons stated hereinabove, we uphold the sole ground and allow the appeal. We quash the conviction of the appellant and 21 set aside the sentence and orders for compensation of Tshs. 500,000/-. We order his immediate release from custody unless held therein for some other lawful cause. DATED at TANGA this 4th day of October, 2019 A. G. MWARIJA JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL W. B. KOROSSO JUSTICE OF APPEAL The Judgment delivered this 4th day of October, 2019 in the presence DEPUTY REGISTRAR COURT OF APPEAL 22