20150520 TZHC Iringa

., IN THE HIGH COURT OF TANZANIA AT IRINGA DC CRIMINAL APPEAL NO. 25 OF.2013 (Originating from Njombe District Court I Criminal Case No. 298 of 2012) LUKELO KINY AGA -------------- APPELLANT i VERSUS THE REPUBLIC ~--------- RESPONDENT I 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 I to Section 154 (1) (a) of the Penal Code, Cap 16 RE 2002. On 23 rd July, 2013 he was convicted as charged and sentenced as follows:- "Accused is the first offender, and : is sentenced to a sentence of life imprisonment." Aggrieved by the decision of Njombe District Court (Rwizile Senior Resident Magistrate), the appellant unrepresented 1s now I 1 before this court. The respondent Republic, which supports the appeal is represented by Mwandal~ma, learned State Attorney. I I i/ { I . The facts relevant to this appeal are these. At the trial the . prosecution case which . relied on the evi~encJI of PWl . (M~riam Luhanga), PW2 (Nathan Kiswaga) and PW3 (Zedekia' Ibrahim Ngole) . . . I • was that on 25 th October, 2012 ~t about 10:00 ihours at K1dugara Village the accused met PW 1 a~d her friends j then the accused ordered PW 1 and her friends to kneel down he ttlen led them to the .bush . and , .· ordered ., . PW,' 1 to. lie dowil . on her· . "'. stomlch, undressed -;··, ·--1• ,. , .,.•·:~ her ~.- .,,·:• ,.,;~:..-,-•.·o~~-,•;,,~· underwear and then he pulled his trouser half iay down and had . i' . : carnal knowledge with PW 1 against the order of !nature. PW 1 left to ,I school . after that incident but did not report. the incidence until when he got back home and narrated the story jto his parents and the accused was arrested following a police report. When taken to Ilembula Lutheran Hospital (PWl was examined • I • by PW3. the clinical officer whd found out .that PWl had been penetrated through the anus arid sustained s~me injuries. PW3 tendered the Medical Examinatiori Report as ExJibit "Pl". I PW2 testified tliat she met ~he accused oA the material date and when he tried to rape her and her colleagu~s they managed to 2 1J. I. ----~~~----~- ---- . . . - ' -- L. ! • 1 ; ' I i r I ,escape but she did not seem to kn0w what transtiired between PWl l r and the accused. I j I . ,. The appellant, ·in this defence denied involv~inent. He-testified . ·i . . that he was severely beaten upon his arrest by ~is fellow villagers I aft~r they heard he was released from prison. ,o substanti~te his claims he tendered the PF3 to prove his part of tl~e story. I : .. _{).:,.__ ,.. -~ - - I - - - - -- - ..tbe T.he-,appellaFit- also claimed. tha_t he_ ~as.,ih:prison.i.Fl:i~n - . ~.,,,-..:- offence occured but according to the chronology of events this did · not seem to add up well. # • I The District Court found out that on the , strength of the.. testimony of PW 1 and PW3 that PW 1 was carn!ally known against I the order of nature and that by virtue of the eJidence of PW l and PW2 the appellant is the once who committ~d the ofence. The I District Court· disregarded the evidence of ali~i and.• also warned 0 itself of the danger of relying on !the evidence of PW 1 which largely - - I - was not corroborated. - i The appellant filed in th1s c9urt a six (6) p~int memorandum ot appeal. The said grounds of appekl can be cryst$,lised as follows:- ' 3 \.' - . . ·,- ' , I I (1) The l)istrict Court wrongly relied on the evi~ence of PWl and PW2. (2) The District Magistrate erred in law and fact in not considering the appellant's defence of alibi. ' " (3) The evidence on record was not sufficient. to support the' :, conviction of the appellant. The appellant being a layman did not hav~ much to say in support of his appeal. He simply :requested the ~ourt to adopt his C) .. . . • • . •, ~- "•, • gronds--of appeal filed as -part of his subm1ss1on. . . - · l· - · - - - · •· . ~ , , , ·•• . - • - ·· 1 I Mr. Mwandalama on his part did not support the conviction. , There were reasons for not supporting the convic'.tion but the major. reason being that the prosecutioi:i failed to prove that it was the appellant who committed the offence. ' 0 He submitted that PW 1 testified that she did, not know the one who committed the evil act to her by name bkt rather by face. ~, I . I ' . Further the proceedings are silen.t as to how ~he appellant was . . I brought to court. Mr. Mwandalama contended that I the trial court ought to have conducted an i~entification · plrade rather than i . relying on dock identification. 4 I - f I Mr. Mwandalama argued further that the te·stimony of PW 1 was not corroborated and went on to point out that th~ evidence of PW 1 can not be corroborated by the evidence of PW2 ~ho 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 scrµtinized thfa case but did not find its relevance in this case lest the'. argument by Mr. I Mwandalama. · Mr. Mwandalama submitted that the testimony of PWl and PW2 :O con_traqic_ts. ea~ll ,other· and referred·_ tCJ·. p9-ge. ? -,~rd _!J:.gLJhe proceedings as such the testimony of PW2 can ndt cq~roborate that ' of PWl. , I Finally Mr. Mwandalama forcefully argued that the trial court i dully considered the defence of alibi and decided to disregard it as it did not comply with the requirement of SectioJ 194 of Criminal Procedure Act, Cap 20 RE 2002. The main issue for consideration is whether or not the evidence I on record was sufficient to ground a convi~tion against the I appellant. t r· 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 l . ~ - - - - - - - - - - - -- - -- evaluation and/ or consideration and views of the entire evidence and my own decision thereon (see D. R. Pandya:v Republic [1957) I I EA 336. This is a duty I can hot shirk front, while remaining ! conscious of the fact that the credibility of witnesses is the domain ~ and monopoly of the trial court which _had tlie :opportunity to see , witnesses testifying and assess th~ir ,, re;pective d~meahour in court. Having closely scrutinized the fecord, it would' appear to me, as it I did to an extent to the trial court, that the prosecution did not lead ' ' ' . any. .ev.ictence. as. to how the ,appellant ·came oto. me. arrestedr-.This is .· .. - also reflected at page 5 of the judgment where ~he first paragraph ! reads; "In all, the evidence for the prosecution :is silent on how the ., I ' accused was arrested. The prosecution di4 not lead evidence showing how did they know it is the accused who committed I the offence." l) The evidence against the appellant is circum~tantial and the law is very clear when it comes to circumstantial evidence. In Ally Bakari and Another V Republic [1992] TLR 10 ~he court stated; "Where evidence against accused person is circumstantial, there must be proof beypnd < reasonable doubt that the facts froim which an I inference of guilty is made are clearly connecte<;i. with the accused person." ln 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 I by face and that was the time when the appellant was in the dock I I therefore PW 1 was made to identify the appellant while in the dock i ·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:- 0 ·"Dock . identification is. worthless . ' .~ (the . court '. . should . \ not . . rely ::,.· •.· . ~ •:· ' ~ ' on dock identification) unless this has be~n preceded by a properly conducted identification parade. A _witness should be asked Ito gi,ve a description of the accused dnd. the prosecution sho~ld then' arrange a fair 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· a (\ 5 paragraph 2 of the judgment where it reads; "As I stated before, the evidence of PWl does not fetch direct corroboration from that of other witnesses. But when well scrutinized at least remotely, the evidence of PW2 is -1I' t corroborative." 7 .I With such an observation by t e trial court, I. am fully satisfied that this court needs something Jore than theories of possibilities in order to uphold a conviction bJsed on remote probabilities. This i~ because the offence to which thJ 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 PW 1 and PW2 is very contradictory and nof at par- such that the testimony . ~, I. .. · 'l) of PW2 is ·not ·relevant at all to'; the· pi-osec·u·tion· 'and,·so·'is·"'the ,., . testimony of PW 1. i Coming to the. final point whic relates to the· defence of alibi as raised by the appellant, I would 4-gree with Mr.. Mwandalama that despite the non-compliance thej trial court. did consider it arid accorded no weight to it as pe i 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 piove the case against the accused ·• person and the standard required is beyond reasonable doD.ht. The burden neither shifts nor is the standard lowered. 8 Given the totality of the evide, ce presented, I are satisfied that ,. the case against the appellart11 has not be$n proved beyond I reasonable doubt. I I therefore allow the appeal, quash the convi~tion and set aside· the sentent~·,.The appellant is to be released foJthwith from prison unless dth¢Kvise ,.. lawfully held the,rein. Ordered ,.-,·: ·. -accordingly. , I P. F. KJHWELO I JUIDGE . . 20;0J;201s Right of Appeal is fully expJined. 1 P. F. KIHWELO i JUDGE }. I 20/05/2015 9 .l