clemence mswani kichuya vs republic 2020 tzhc 531 30 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA CRIMINAL APPEAL NO. 04 OF 2020 (Originating from Criminal Case No. 23 of 2019 of Nyasa District Court) CLEMENCE MSWANI @ KICHUYA.................APPELANT VERSUS THE REPUBLIC........................................RESPONDENT Date o f last hearing: 09/03/2020 Date o fjudgment: 30/03/2020 JUDGMENT I. ARUFANI, J. The appellant, Clemence Mswani @ Kichuya was charged before the District Court of Nyasa at Nyasa (hereinafter referred as the trial court) with four counts of the offence of rape contrary to sections 130 (1) and 131 (1) of the Penal Code, [Cap 16 R.E. 2002] (hereinafter referred as the Penal Code), grievous harm contrary to section 225 of the Penal Code, stealing contrary to sections 258 (1) and (2) (a) and 265 of the Penal Code and burglary contrary to section 294 (1) (a) and (2) of the Penal. It was alleged in the particulars of the offences that, on 05thday of August, 2019 during night hours at Kilosa Village within Nyasa District in Ruvuma Region the appellant did break and enter into the house of one AM (not her real name and hereinafter referred as the victim) with an intent to commit offences therein. After entering into the mentioned house the appellant stole the mobile phone of the victim make Itel Valued Tshs 20,000/=, raped her and caused grievous harm to her. At the end of the trial the appellant was convicted and sentenced to serve thirty years imprisonment for the offence of rape, three years for the offence of grievous harm, three years for the offence of stealing and twenty years for the offence of burglary, and the sentences were ordered to run concurrently. The appellant was aggrieved by the decision of the trial court and filed in this court the petition of appeal containing the following three grounds of appeal:- 1. That the trial court erred in law and fact to convict and sentence the appellant whilst the PW1 failed to prove beyond reasonable doubt that the appellant break the door of the house. 2. That, Hon. Judge there is no direct evidence which prove that the appellant committed the offences. 3. That, Hon. Judge the prosecution witness failed to prove their case beyond reasonable doubts. The court has found the issue to be determined from the above grounds of appeal is whether the offences leveled against the appellant were proved to the standard required by the law which is beyond reasonable doubt. When the appeal came for hearing the appellant appeared in court in person (unrepresented) and Miss Shose Naimani, learned Senior State Attorney appeared for the respondent. The appellant argued the grounds of appeal collectively and told the court that, the prosecution side fabricated the evidence to convict him. He said he was arrested at 10:00 am at his working place which was at Professor Mkoma's site and the search was conducted in his house at 19:30 pm. He said he didn't understand why the search was not conducted during the day. He added that, the searcher brought things he does not known at his place of residence to fabricate the case leveled against him. He argue that, although the victim alleged he was the one committed the offences of rape, burglary, stealing and grievous harm against her and the offences occurred at 04:00 AM and she managed to identify him by using the light of the house of nuns but she failed to tell the court what type of the light she used to identify him, how many lights were there and what was the distance from the place of event up to the nuns' house. He argued further that, no any witness said to have seen him committing those offences. He concluded his arguments by stating that, the trial court erred in convicting him by using only the evidence of PW1. He supported his arguments by referring the court to the Holly Bible in the book of Deuteronomy, Chapter 19 verse 15 which states the evidence of one person is not enough to convict a person but the evidence of two or more persons. In reply, the learned Senior State Attorney told the court that, they are supporting the appeal on the ground that, the prosecution case was not proved to the required standard. The learned Senior State Attorney told the court that, the evidence in the appellant's case was based on identification as the event occurred at night hours. She said the victim who testified before the trial court as PW1 did not say what type of light she used to identify the appellant and what was the distance from the source of the light she stated she used to identify the appellant up to the place of event. She also said the victim did not say how much time the appellant spent in the commission of the said offences. To support her arguments she referred the court to the case of Waziri Amani V. R, [1980] TLR 250 where the court stated the conditions required to establish that, a person has been identified as the one committed the offence. It is her further argument that, PW1 stated at page 8 of the proceedings of the trial court that after going to the police station she gave description of the suspect as a short and white person. However, while continuing to give her evidence she said she knew the appellant for about three months and his nick name was Kichuya while she did not mention that name from the beginning. She said that raised doubts that PW1 did not manage to identify the appellant at the time of the event. The learned State Attorney added that, PW6 who is a policeman and neighbor of the victim said after hearing the shout from the house of PW1 he went to assist her. She said after PW6 going to the place of event and asked the victim what was wrong the victim told him she had been raped by a youth person but she didn't mention the name of that person to PW6. She said that shows the evidence of PW1 was not sufficient to prove that the appellant was properly identified. She went on arguing that, the first count of rape leveled against the appellant was preferred under section 130(1) and 131(1) of the Penal Code without showing under which category of the rape provided under subsection 2 of section 130 of the Penal Code the offence was preferred. She said that, even the particulars of that offence do not state if the rape was done without consent or the consent was obtained under threat or duress as provided under section 130(2) (a) (b) (c) and (d) of the Penal Code. She argued that, even the evidence of PW1 shows she said she was just raped without stating if it was without her consent or by threats. She supported her arguments by using the case of Selemani Makumba V. R, [2006] TLR 379 where the Court of Appeal of Tanzania stated that, the true evidence of rape is suppose to come from the victim of rape and if is an adult, she must state if it was without her consent and if the victim is not an adult there was penetration. She submitted that, as the victim in the case at hand was an adult she was required to state if she was raped without her consent or consent was obtained through threats. From the above stated reason, the learned State Attorney submitted that, the first up to forth counts were not proved to the required standard as the appellant was not identified properly as the person committed the offences alleged by PW1. As for the evidence that the house of the appellant was searched and found with a mobile phone, the said mobile phone which was crucial evidence in the third count was supposed to be identified by PW1 properly. However, PW1 just said the mobile phone was black and mentioned her phone number without mentioning the type or make of the mobile phone as there are several mobile phones which are black in color. She argued that, although PW1 said the mobile phone had a line with number 0762753913 but it was not proved if the line with the mentioned number was in the mobile phone and was the property of PW1. She agreed with the appellant that, the case was not proven beyond reasonable doubt. She contended that, without prejudice to what she had argued above she is not supporting the appellant's argument in relation to what is provided under the book of Deuteronomy; chapter 19 verse 15 that a case is supposed to be proved by more than one witness. She argued that, she is differing with the appellant because section 143 of The Evidence Act, Cap 6 R.E. 2002 states that, a case can be proved by even a single witness and there is no specific number of witnesses required. 5 She submitted that, courts are guided by the statutes and not holly books. In rejoinder the appellant had nothing to add in his submission. After considering the submissions made to the court by both sides and going through the record of the trial court I have found proper to start dealing with the propriety of the charge laid against the appellant because as stated in the case of Mussa Ramadhani V. R. Criminal Appeal No. 368 of 2013, CAT at Mbeya (unreported), it is the charge sheet which lays a foundation of a trial. The court has found section 130 (1) of the Penal Code upon which the first offence laid against the appellant was made is only creating an offence for a male person to rape a girl or a woman and section 131 (1) is providing for punishment for a person committed the offence of rape. Section 130 (1) of the Penal Code is not providing for circumstances upon which it can be said a male person has committed an offence of rape. The circumstances are provided under subsection 2 of section 130 of the Penal Code which contains about five categories or classification of rape as provided under paragraphs (a) to (e) of the mentioned subsection. As rightly argued by the Senior State Attorney, failure to cite the subsection and paragraph of the subsection creating the offence of rape laid against the appellant is violation of laws governing drafting of a charge. The provision of the law providing for how a charge is supposed to be drafted is section 135 (a) (ii) of the Criminal Procedure Act, Cap 20 R.E 2002 which states as follows:- "the statement o f offence shall describe the offence shortly in ordinary language avoiding as far as possible the use o f technical terms and without necessarily stating a ll the essential elements o f the offence and, if the offence charged is one created by enactment, shall contain a reference to the section o f the enactment creating the offence" [Emphasize added]. From the wording of the bolded part of the quoted provision of the law it is crystal clear that, it is mandatory to state in a statement of the offence the section of the enactment creating the offence. Although the section is providing for making reference to the section creating the offence but the interpretation which has been made to the above provision of the law by this court and the Court of Appeal in number of cases is that, if the section contains subsections and paragraphs, categories or classifications of the offence the same are supposed to be cited in the statement of the offence. That was stated by the Court of Appeal of Tanzania when was dealing with violation of the requirements of making reference to a section of the law provided in the above quoted provision of the law in the case of Charles Makapi V. R, Criminal Appeal No. 85 of 2012, CAT at Tabora where the court stated inter alia that:- "As shown earlier above, the statement o f the charge failed to specify the specific classification among the categories stated under section 130. The classifications o f the offence o f rape have been divided into five, from section 130(2) (a) to (e). As it appears in the charge sheet here in this case, it is not dear under which o f those five classifications or categories o f the offence o f rape the appellant is alleged to have committed. " Since subsection 2 of section 130 of the Penal Code and the specific paragraph of such subsection creating the offence laid against the appellant was not cited in the statement of the offence it is the finding of this court that, the charge preferred against the appellant was defective. If the charge was defective the next issue to determine is what is the effect of the stated defect? The answer to that issue can be found in the case of Charles Mlande V. R, Criminal Appeal No. 270 of 2013 CAT (unreported) where the Court of Appeal stated inter alia that:- "The wrong and/or non-citation o f the appropriate provisions o f the Pena Code under which the charge was preferred, left the appellant unaware that he was facing a serious charge o f rape..." The Court of Appeal of Tanzania stated in the case of Charles Mlande (Supra) that, the stand taken in the case of Abdallah Ally V. R, Criminal Appeal No. 253 of 2013 CAT (unreported) and other subsequent cases like that of Kastory Lugongo V. R, Criminal Appeal No. 12 of 2015 is that, the defective charge preferred under wrong and/or non-existing provision of the law unduly prejudiced the accused person. It is in the light of the position of the law stated in the above cited cases the court has arrived to the settled view that, as rightly argued by the Senior State Attorney as the appellant was charged under wrong provision of the law it cannot be said he was fairly tried and convicted by the trial court in the offence of rape. Without prejudice to what has been stated hereinabove the court has found that, even if it would have been said the offence of rape leveled against the appellant in the first count was made under the correct provision of the law but as rightly argued by the learned Senior State Attorney the evidence adduced by the prosecution to prove all the offences leveled against the appellant was based on visual identification as the event occurred at night. 8 The position of the law in relation to the evidence of visual identification was well laid in a celebrated case of Waziri Amani V. R, cited to the court by the learned Senior State Attorney that, no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. The court listed in the said case some factors to be considered in determining whether identification of a suspect is watertight to be as follows:- "... the time the witness had the accused under observation, the distance at which he observed him; the conditions in which the observation occurred, if it was day or night time; whether there was good or poor lighting at the scene; whether the witness knew or had seen the accused before or not." Coming to the case at hand, the court has found that, as rightly argued by the Senior State Attorney and as indicated in the particulars of the offences levelled against the appellant the offences were committed at night hours. The court has found that, although the victim said she managed to identify the appellant as the person raped her on the date and time of event but some of the factors for visual identification listed in the case of Waziri Amani V. R, (supra) were not established clearly. The court has found that, despite the fact that the victim said she managed to identify the appellant as a person raped her because of the light which was coming from Mhalo Hotel but she didn't say what kind of light was coming from the mentioned hotel and what was its intensity. The court has also found that, even if it will be said it was an electric light but as rightly argued by the Senior State Attorney the victim did not say what was the distance from her house to the hotel where the light was coming from so that it can be said there was enough light to enable her to identify her assailant without any mistake. The court has arrived to the above finding after seeing it was stated in the case of Scapu John V. R Criminal Appeal No. 197 of 2008, CAT at DSM (Unreported) that, when the court is dealing with the issue of watertight evidence of visual identification which entails exclusion of all possibility of mistaken identity it should take into consideration the following factors; • "How long the witness had the accused under observation. • What was the estimated distance between the two. • I f the offence took place at night which kind o f tight did exist and what was its intensity. • Whether the accused was known to the witness before the incident. • Whether the witness had ample time to observe and take note o f the accused without obstruction such as attack, threats and the like, which may have interrupted the letters concentration." (Emphasis added) The bolded part of the above quoted excerpt shows that, the victim was supposed to state clearly the kind of light she used to identify the appellant and its intensity. Failure to state the kind of light and the intensity of the light she used to identify the appellant together with its distance from the place of event has made the court to find it cannot be said the factors stipulated in the above cited cases were established in the case of the appellant to the required standard. Further to that the court has found that, despite the fact that the victim said she knew the appellant before the date of event and she gave his descriptions at the police station as a short and white person 10 but as rightly argued by the Senior State Attorney she didn't gave that description at the earliest time to the people who followed her shout. She said the victim failed to mention the appellant or gave his description to H. 4779 DC Arbogasty, (PW6) who was the first person to follow her shout to show she managed to identify the appellant as a person invaded her and committed the offences levelled against him. To the contrary PW6 said that, after going to the home of the victim following her shout he asked her what had happened to her and the victim told him she had been raped by one young man and she didn't give any description of the appellant to him. This makes the court to entertain a doubt about the correctness of identification of the appellant. The court has also entertained the said doubt after being of the view that, if it is true that the victim knew the appellant as she stated in her testimony she knew him for three months and his nickname was Kichuya, why she did not mention him to PW6 who followed her shout at the earliest time and wait until when she went to the police station is when she described her assailant as a short and white person. The above finding of this court is getting support from the case of Marwa Wangiti and Another V. R, [2002] TLR 39 at page 43 where it was stated inter alia that:- "The ability o f a witness to name a suspect at the earliest opportunity is an all-important assurance o f his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent Court to inquiry. " From the above position of the law the court has found as the victim failed to mention the appellant to PW6 who was the first person to follow her shout the victim was not sure about who exactly invaded her and committed the offences alleged to have been committed by the appellant as she just mentioned to PW6 that she was raped by one li young man and she didn't mention who was that young man. That makes the court to find there was doubt in the prosecution's evidence in relation to the identification of the appellant as the person committed the offences alleged by the victim. The court has also considered the prosecution evidence that the house of the appellant was searched and found with a mobile phone which the victim alleged was robbed from her by the appellant on the date of event which is the basis of the third count. The court has found the prosecution's evidence in respect of the alleged offence left a lot to be desired. The court has arrived to the above finding after seeing that, H. G. 2404 DC Felix, (PW2) said that, after being handed the file of the victim he went to the place of event at 09:00 AM where he drew the sketch map of the place of event and collected the exhibits which were machete, t-shirt and the phone. This witness told the trial court that, by that time the appellant had not been arrested and after going to the police station he found the appellant had already been arrested. The court has found the evidence of PW2 is in contradiction with the evidence of Ahazi Dickson Mbanile, (PW4) who told the trial court he was a policeman. This PW4 told the trial court that, after being handed the file of the case of the victim and find the victim had mentioned the appellant as the person committed the alleged offences against her he went with his team to arrest the appellant at his place of work. He said after the appellant being arrested they went to search his house and Abdallah Mtanga, (PW5) was called to witness the search. These PW4 and PW5 said that, after searching the house of the appellant they found a cell phone under the mattress of the appellant and the appellant said it was not his phone. The above witnesses said that, on further search they found a red dirty t-shirt which the appellant said he had wear on the date of event. The above contradictions makes the court to fail to understand where the phone and the t-shirt alleged was wore by the appellant on the date of event were found as while PW2 said he collected them from the place of event which was at the home of the victim, PW4 and PW5 said where found in the house of the appellant. This contradiction raised great doubt which to the view of this court and as there is no evidence adduced by the prosecution or explanation given to clear the same out it rendered the prosecution evidence doubtful and unreliable. The court has also found that, the victim did not give sufficient explanation to establish the phone she alleged was robbed from her is the one alleged was found in the house of the appellant. The court has found as rightly argued by the Senior State Attorney the victim simply said the appellant robbed a phone from her which was black in color and its back cover was broken and it had a line which its number was 0762753913. The court has found that, as the type or make of the phone was not mentioned by the victim to distinguish it from other black phone it cannot be said the phone found in the house of the appellant was properly identified as the phone stolen from the victim. In addition to that the court has found as also argued by the Senior State Attorney there is no evidence adduced to establish the line alleged was in the phone of the victim was in the cell phone found in the house of the appellant which was admitted in the case as exhibit P3. This doubt is strengthened further by the argument by the appellant that, despite the fact that he was arrested at 10:00 hours but search was conducted in his house at 19: 30 hours and he didn't understand why search was conducted at that time. All what I have stated hereinabove make the court to find that even the evidence relating to the search conducted in the appellant's house and the properties alleged 13 were found in his house failed to connect him with the offences leveled against him. It is in the strength of what has been stated hereinabove the court has found compelled to accept the arguments by the appellant and the Senior State Attorney that, the prosecution's evidence failed to prove the offences leveled against the appellant to the standard required by the law which is beyond reasonable doubt. Consequently, the appeal of the appellant is hereby allowed, the conviction entered against him in all counts is quashed and the sentences imposed to him are accordingly set aside. The court is ordering the appellant to be released from the prison forthwith if there is no other lawful cause for incarcerating him. Dated at Songea this 30th day of March, 2020 I. ARUFANI JUDGE 30/ 03/2020 Court: Judgment delivered today, 30th day of March, 2020 in the presence of the appellant in person and in the presence of Mr. Hamimu Nkoleye, Senior State Attorney for the Republic. Right of Appeal is fully explained to the parties. JUDGE 30/ 03/2020 14