lukelo kinyaga vs republic 2015 tzhc 2258 20 may 2015

IN THE HIGH COURT OF TANZANIA AT IRINGA DC CRIMINAL APPEAL NO. 25 OF 2013 (Originating from Njombe District Court Criminal Case No. 298 of 2012) LUKELO KINYAGA--------------APPELLANT VERSUS THE REPUBLIC----------RESPONDENT 04/05/2015 & 20/05/2015 JUDGMENT KIHWELO, J . In the District Court of Njombe at Njombe, the above named appellant was arraigned on the charge of unnatural offence contrary to Section 154 (1) (a) of the Penal Code, Cap 16 RE 2002. On 23rd July, 2013 he was convicted as charged and sentenced as follows:- “Accused is the first offender , and is sentenced to a sentence o f life imprisonment ” Aggrieved by the decision of Njombe District Court (Rwizile Senior Resident Magistrate), the appellant unrepresented is now l before this court. The respondent Republic, which supports the appeal is represented by Mwandalama, learned State Attorney. The facts relevant to this appeal are these. At the trial the prosecution case which relied on the evidence of PW1 (Mariam Luhanga), PW2 (Nathan Kiswaga) and PW3 (Zedekia Ibrahim Ngole) was that on 25th October, 2012 at about 10:00 hours at Kidugara Village the accused met PW1 and her friends then the accused ordered PW1 and her friends to kneel down he then led them to the bush and ordered PW1 to lie down on her stomach, undressed her underwear and then he pulled his trouser half way down and had carnal knowledge with PW1 against the order of nature. PW1 left to school after that incident but did not report the incidence until when he got back home and narrated the story to his parents and the accused was arrested following a police report. When taken to Ilembula Lutheran Hospital PW 1 was examined by PW3 the clinical officer who found out that PW1 had been penetrated through the anus and sustained some injuries. PW3 tendered the Medical Examination Report as Exhibit “P I ”. PW2 testified that she met the accused on the material date and when he tried to rape her and her colleagues they managed to escape but she did not seem to know what transpired between PW1 and the accused. The appellant, in this defence denied involvement. He testified that he was severely beaten upon his arrest by his fellow villagers after they heard he was released from prison. To substantiate his claims he tendered the PF3 to prove his part of the story. The appellant also claimed that he was in prison when the offence occured but according to the chronology of events this did not seem to add up well. The District Court found out that on the strength of the testimony of PW1 and PW3 that PW1 was carnally known against the order of nature and that by virtue of the evidence of PW1 and PW2 the appellant is the once who committed the ofence. The District Court disregarded the evidence of alibi and also warned itself of the danger of relying on the evidence of PW 1 which largely was not corroborated. The appellant filed in this court a six (6) point memorandum of appeal. The said grounds of appeal can be crystalised as follows:- (1) The District Court wrongly relied on the evidence o f PW1 and PW2. (2) The District Magistrate erred in law and fa ct in not considering the appellant’s defence o f alibi. (3) The evidence on record was not sufficient to support the conviction o f the appellant. The appellant being a layman did not have much to say in support of his appeal. He simply requested the court to adopt his gronds of appeal filed as part of his submission. Mr. Mwandalama on his part did not support the conviction. There were reasons for not supporting the conviction but the major reason being that the prosecution failed to prove that it was the appellant who committed the offence. He submitted that PW1 testified that she did not know the one who committed the evil act to her by name but rather by face. Further the proceedings are silent as to how the appellant was brought to court. Mr. Mwandalama contended that the trial court ought to have conducted an identification parade rather than relying on dock identification. Mr. Mwandalama argued further that the testimony of PW 1 was not corroborated and went on to point out that the evidence of PW 1 can not be corroborated by the evidence of PW2 who is also a child of tender age. He relied on the case of Ali Msutu V Republic [1980] TLR 1 but with all due respect I have closely scrutinized this case but did not find its relevance in this case lest the argument by Mr. Mwandalama. Mr. Mwandalama submitted that the testimony of PW1 and PW2 contradicts each other and referred to page 9 and 11 of the proceedings as such the testimony of PW2 can not corroborate that of PW1. Finally Mr. Mwandalama forcefully argued that the trial court dully considered the defence of alibi and decided to disregard it as it did not comply with the requirement of Section 194 of Criminal Procedure Act, Cap 20 RE 2002. The main issue for consideration is whether or not the evidence on record was sufficient to ground a conviction against the appellant. In an attempt to resolve the above issue I am mindful of the fact that this is a first appeal which is in the form of re-hearing. That being the case, the appellant is entitled in law to have my own re- 5 evaluation and/or consideration and views of the entire evidence and my own decision thereon (see D. R. Pandya V Republic [1957] EA 336. This is a duty I can not shirk from, while remaining conscious of the fact that the credibility of witnesses is the domain and monopoly of the trial court which had the opportunity to see witnesses testifying and assess their respective demeanour in court. Having closely scrutinized the record, it would appear to me, as it did to an extent to the trial court that the prosecution did not lead any evidence as to how the appellant came to be arrested. This is also reflected at page 5 of the judgment where the first paragraph reads; “In all, the evidence fo r the prosecution is silent on how the accused was arrested. The prosecution did not lead evidence showing how did they know it is the accused who committed the offence. * The evidence against the appellant is circumstantial and the law is very clear when it comes to circumstantial evidence. In Ally Bakari and Another V Republic [1992] TLR 10 the court stated; “Where evidence against accused person is circumstantial, there must be p roo f beyond reasonable doubt that the facts from which an inference o f guilty is made are clearly connected with the accused person. ” In connection to that PW 1 testified that she did not know the one who committed the evil act to her by name but she only knew him by face and that was the time when the appellant was in the dock therefore PW 1 was made to identify the appellant while in the dock and alone. This in my view makes dock identification valueless. In Gabriel Kamau Njoroge V Republic [1982-88] 1 KAR 1134 which was cited with approval by the Court of Appeal of Tanzania in Prosper Baltazar Kileo & Another V Republic, Criminal Appeal No. 150 of 2011, the Kenya Court of Appeal stated:- “Dock identification is worthless (the court should not rely on dock identification) unless this has been preceded by a properly conducted identification parade. A witness should be asked to give a description o f the accused and the prosecution should then arrange a fa ir identification parade.” The other discernible error which is apparent on the face of evidence on record is that the evidence of PW2 does not corroborate the evidence of PW 1 as clearly pointed out by the trial court at page 5 paragraph 2 of the judgment where it reads; “As I stated before, the evidence o f PW1 does not fetch direct corroboration from that o f other witnesses. But when well scrutinized at least remotely, the evidence of PW2 is corroborative." With such an observation by the trial court, I am fully satisfied that this court needs something more than theories of possibilities in order to uphold a conviction based on remote probabilities. This is because the offence to which the accused is charged is very grave and serious and carries with it a severe custodial sentence of life imprisonment. It is also clear from the record that the testimony of PW1 and PW2 is very contradictory and not at par- such that the testimony of PW2 is not relevant at all to the prosecution and so is the testimony of PW 1. Coming to the final point which relates to the defence of alibi as raised by the appellant, I would agree with Mr. Mwandalama that despite the non-compliance the trial court did consider it and accorded no weight to it as per Section 194(6) of the Criminal Procedure Act thereof (see Charles Samson V Republic (1990) TLR 39). It is a cardinal principle of criminal trial that the burden of proof is always on the prosecution to prove the case against the accused person and the standard required is beyond reasonable doubt. The burden neither shifts nor is the standard lowered. Given the totality of the evidence presented, I are satisfied that the case against the appellant has not been proved beyond reasonable doubt. I therefore allow the appeal, quash the conviction and set aside the sentence. The appellant is to be released forthwith from prison unless otherwise lawfully held therein. Ordered accordingly. P. F. KIHWELO JUDGE 20/05/2015 Right of Appeal is fully explained. 20/05/2015