20151215 TZHC Mwanza

Q}12t fu4l_____ IN THE HIGH COURT Of TANZANIA -

IN THE DISTRICT REGISTRY

AT MWANZA HIGH COURT CRIMINAL APPEAL NO. 162 OF 2017 {Original Criminal Case No. 622/2016 from the District Court of Tarime/ A.R. Kahimba $RM) MWITA YUSUPH @ MAKORERE ......................... APPELLANT

VERSUS THE REPUBLIC .............................................. RESPONDENT

JUDGMENT BUKUKU, J.: The -appellant together with other un arrested persons, were arraigned before the District Court of Tarime at Tarime and were charged with four counts, namely, two separate armed robberies, c/s 287A, gang rape c/s 131(1) and 225, and causing grievous harm c/s 287 A of the Penal Code Cap 16 R.E. 2002, as amended by Act No. 3 of 2011 and sections 131(1) and 225 of the Penal Code. The particulars of the charge sheet allege that, on. 21/11/2015 at night time at Buhemba street, within Tarime District in Mara Region, the appellant herein together with the other un arrested persons, did steal various J . - ___.,..---·•~·" '. . . ('' ·~rn~L _ properties including mobile phones, make, NOKIA and TECNO, a laptop and cash money belonging to Rahama w/o Omary, Judith w/o Alex @ Nakuringa, and caused grievous harm to one Gerald s/o Juma by cutting hi,:n with a bush knife on his head and his left foot a·nd caused him to suffer serious injuries On the second count, the appellant herein was charged with Gang rape c/s 131 A (1) of the Penal Code. The particulars of the offence claims that on the sam~ date, time and place, together with other un arrested persons, did have sexual intercourse knowledge to one Rahama w/o Omary without her consent. Before going into the nitty-gritty of this appeal, I think it is• importa·nt at this juncture to briefly examine the evidence upon

which the appellant's conviction was based and sustained by the trial court. From a total of six (6) witnesses, the prosecution led evidence to the effect that, during the night of 21/11/2015, while sleeping in their house, PWl Rahama Omary and her two children, PW2, Khadija Omari and one Ibrahif!l were suddenly invaded by bandits. According to PW1, at around 00.00 hours, she heard the sitting room door being forced open. As she f f . Q,,0 f u ~ . ( proceeded to check what was happening, she came face -to race with six bandits wilding local weapons (machete and iron rods). ?Wl further testified that, the bandits then started slapping her and demanded to be given money, to which she said she did not have. Later, the bandits took turns to rape her while threatening to cut her with a panga. When the bandits left, PWl and her daughter PW2 cried for. help. People from the neighbourhood gathered at the scene, including PW3 Rajabu Map~sa who was the street chairman by then. P-W3 informed the police and when the police arrived, they took PW1 to Tarime police station and later to the Tarime Government Hospital for treatment, where she was admitted for five days. According to PWl, when she returned ho.me having been discharged from hospital, she found her mobile phones, Nokia and Techno make, one laptop, one deck and cash money T.shs. 3,000,000/= missing. PW1 further told the court that,

she had identified the appellant at the scene because all the time, there was a tube light which was illuminating in the- entire house and that the appellant was familiar to her because he used to work for her husband in making bricks and that, they took him as their family member. {-),,~~r &-11✓~-t- rn his defence before the trial court, the appellant denied the allegations leveled against him. He surmised that, he is a peasant who · resides with his parent at Kogela Village. That, he doe_s not know the victim (PWl) nor does he know her husband. He also alleged that, on 21/11/2015 during the night he was at home resting with his parents. On the following day, i.e. 22/11/2015, he left home in the morning and went to weed at his farm. He returned back home and continued with his business. According to the appellant, he remembered that, on 25/11/2015, while at home, police officers came and requested him to go with them to Tarime Police Station to which he obliged. Upon arrival at the station, he was remanded for six days and on 30/11/2015, he was interrogated in connection with the case he is charged with and he denied. When the appeal was called on for hearing, the· appellant was represented by Mr. Onyango Otieno and Robert Marwa, learned advocates, while Mr. Juma Sarige, learned Senior State Attorney represented the respondent Republic. He hurried to inform the court that he

was supporting conviction. The amended Memorandum of Appeal filed by the appellant raised five (5) grounds of appeal. However, when submitting, Mr. Otieno informed the . . .. C-0~ rJ)qiL__ ---·----- court that they are withdrawing grounds No. 3 and 5 and thus proceed with grounds 1, 2 and 4 only, which are:- 1.. That the trial magistrate erred in law and· fact by admitting evidence which is not corroborated that convicted the appellant.

2. That the trial magistrate erred in fact by not considering sequence of events regarding this case as there has been duplicity and misconnections of event; and 3. That, the trial magistrate erred in law and fact by failure to evaluate evidence on proof of exhibit that was used to break the door to gain access. Arguing on the first_ground of appeal, M~. Onyango Otieno submitted that, in his judgment, the trial magistrate considered the evidence which was not corroborat_ed. He surmised that, PWS PC. Bakari, told the court that, the appellant was arrested on 29/11/2015, while PW6 on the other hand, told the court that they arrested the appellant on 23/11/2015. For that matter, there is a difference of six days and a different location of arresting, since. PWS told the court that the appellant was arrested at Buhemba village, while PW6 alleged that he was arrested at the Government Hospital Tarime. The two testimonies of these witnesses were not corroborated. Mr. Otieno further . . . . 00 ()s? ~ - argued that, PW6 said they called PW3 when arresting the ap-pellant in different locations. PW3 is silent as to how he assisted the police in arresting the appellant. For that matter, the evidence of PW3, PWS and PW6 were not corroborated. Elaborating on the other inconsistency, Mr. Otieno submitted that, in her testimony, PW1 told the court that, she heard the sitting room door being

forced open, but according to PW2, she told the court that, the assailants broke the front door using a stone known as ''Fatuma/~ For that matter, there is contradiction between the testimony of PW1 and PW2, and, under those circumstances, it is not known who was telling the truth. He thus surmised that, the trial magistrate erred in depending on the unreliable ·evidence of the prosecution which was riot corroborated to convict the appellant. Mr. Otieno further submitted that, the evidence of the Doctor (PW4) was not enough for the trial magistrate to convict the appellant since PW4 did not tell the court whether the samples he took matched with those from the appellant. Submitting on the fourth ground of appeal, Mr. Otieno averred that, PW2 had alleged that, the door was broken using the stone "fatuma//but the said stone was not brought as evidence to prove the prosecution's case. (, . · · 00 &rnM(_ .. He thus prays that, the conviction and sentence of the trial courtbeset aside because, the prosecution has failed to prove their case. In response, Mr. Sarige, as already hinted, did not support the appeal. He surmised that, according to the record, PW1 's evidence was corroborated with that of PW2, PW3, PWS and PW6. According to Mr. Sarige, PW1 told the court that, she shouted after the bandits invaded her house, while she was with PW2. PW3 also told the court that,

he respondent to the alarm having heard the shouts of PW1 and PW2. Mr. Sarige further submitted that, there is also the evidence of PW3 who told the court that, he saw PW1 lying down at the scene, which corroborates PWl's statement. According to Mr. Sarige, PWS the investigator, recorded· the statement of PW1 who told her as to what had happened, and PWS, told the court that, PW1 had identified the appellant. This shows that, PW1 mentioned the appellant at the earliest opportunity. PW1 also named the appellant to her husband when he visited her at the hospital. As far as the issue of contradicting dates of arrest are concerned, Mr·. Sarige argued that, PW5 was informed that the appellant was arrested on 29/11/2015 but the difference in dates did not go to the root of the matter. With regard to PW6, he was not involved in the arresting, but he was only the husband of the W2J CB).f\!V/~--- victim (PW1). Mr. Sarige argued that, the testimonies of witnesses may differ according to the memory, but the event is the same, and therefore, each party played its own role. On the issue as to how the bandits entered the house, Mr. Sarige submitted that, the contradiction between the testimony of PW1 and PW2 has no basis. This is because, the appellant is accused of armed robbery and gang rape. It has nothing to do with house breaking. What matters is that, the appellant was identified at

the scene. As for the testimony of PW4, Mr. Sarige submitted that, the issue that the specimen was not taken to the Government Chemist is baseless. The appellant is accused of armed robbery - - and gang rape which do not require specimens. PWl 's evidence has been corroborated by other witnesses, and in gang rape cases, what is required is penetration. The Doctor's evidence was required to prove penetration only to prove gang rape to which he did. Submitting on the fourth ground of appeal on the issue of the stone not being produced as evidence, Mr. Sarige submitted that, with or without the stone being produced, the offence was not house breaking or burglary. The appellant was identified inside the house. The issue how he entered into . the house is baseless. According to Mr. Sarige, there are many stones which ~fut."'-~~-------~- do not have any mark. For these reasons, he prays that the appeal be dismissed and that it was the appellant who committed the offence. In his brief rejoinder, Mr. Otieno insisted that th~ prosecution has to prove its case, beyond reasonable doubt. In this case, the prosecution has failed to prove the circumstances of arrest of the appellant, and has failed to corroborate the testimonies of the prosecutions' witnesses. The prosecution has also failed to prove its case as to how the appellant gained access to the house. Considering that this is a

serious-conviction, it is Mr. Otieno's submission that, basing on the irregularities and different testimonies of the six witnesses, it is the appellant's prayer that, this court sets aside the conviction and sentence of the Tarime District Court passed on 30/3/2017, and set the appellant free. From the submissions presented to me, I must at the very outset state that, the conviction of the appellant in this case was based entirely on visual identification evidence of PW1 and PW2. Both PW1 and PW2 stated that, they identified the appellant with the aid of tube light which illuminated into their house. The identifying portion in the evidence of PW1 at page 11 of the typed proceedings runs as follows:-- "...... I remember all the -time tube light lighting was illuminating in the entire house .......... ,,, ( Further, at page 12, she had this to say:- ? knew the accused person before the fateful date. ''Msh1takiwa anafanya kazi ya kumfyatulia tofali mume wangu kwenye kazi za kuuza tofali alizokuwa anapewa. Kwa ufupi huyu alikuwa ni kama mtoto wa nyumbani ............ ,.~ As far as PW2's testimony is concerned, she had this to say at page 14 of the proceedings about identifying the appellant:- . .''Among the six assailants_, I only identified the accused person. I did not identify the rest of the assailants. I remember there was.tube light lighting which was illuminating into our

house..'......... ,.~ In my perusal of the considered judgment of the trial court, I did not see any deliberate attempt by the learned magistrate, to eliminate all possibilities of mistaken identification of the appellant. Instead, the trial magistrate acted on the generalized assertion by both PW1 and PW2 that they identifie.d the appellant. The trial learned magistrate himself made his own generalized statement on visual identification, at page 10 of his judgment as follows:- Of~ ();l Al~L 11••• -- A thorough perusal of the testimony of PW1 and PW2 --- clearly disclose how both of them identified the accused person. The testimony howeve0 discloses how the ~ccused person was almost a family member since he was an employee of PW6 ....... ,✓ Clearly, from the above, both PW1 and PW2 have not explained to the trial court how the source of light actua.lly assisted their visual identification of the appellant. In so far as probity of the evidence of identifying witnesses is concerned,. on numerous occasions, the Court of Appeal has restated time and again that, evidence of visual identification is of the wea.kest kind and most unreliable. For that matter, courts are not expected to act on such evidence without first _eliminating all possibilities of mistaken identity and satisfying themselves that, that evidence is absolutely water tight (See: John Balagomwa Hakizimana Zebedayo and

Deo Mhidini V. Republic; Criminal Appeal No. 56 of 2013 (unreported) which was referring to Waziri Amani V.R. [1980] TLR 250) . . Deliberate measures of caution have been taken by the courts when evaluating evidence of visual i~entification especially if such identification .is done at night when circumstances do not readily lend themselves to easy identification. If for instance, the witness is relying on some light as an aid of visuaJ identification, he/she must describe the source and intensity of that light. Such witness should also explain the proximity he was to the culprit and the time spent on the encounter. Equally important is for the_ witness to describe the culprit (s) ,n terms of body build, complexion, size, attire or any peculiar feature to the next person that he comes across, as soon as possible. In this case, the earliest possible opportunity available to PW1 and PW2 to name the appellant was when the neighbours, including the street chairman (PW3) rushed to the scene of crime to offe"r them assistance. Both · PW1 and PW2 testified in court that they knew the appellant well before -- the incident because he used to work for them. I cannot but wonder, why these two identifying_ witnesses, failed to mention the name of the_ appeliant to the neighbours, including the street chairman. In fact it took PW1 between three to four days to name the appellant before PWS

and PW6: All in all, as intimated earlier on, I think the trial magistrate misapprehended the identification evidence of PW1 and PW2 when he ruled out the possibility of mistaken identity where these two witnesses made gene~a Ii zed statements of identification. 12 ~·-·----------......-........... ·- . . 01?~. ~ ~-l__ As th'e first appellate court, I am aware that I am d!Ay--bound to re- evaluate the evidence on record and apply the principles for visual identifi~ation. In this case, the failure by the trial court to relate the evidence on record to principles guiding the acting on evidence of visual identification, has provided an opening for this court to fault the findings of fact which suggested that the appellant was positively identified by PW1 and PW2 at the scene of crime. · Even if I were to decide that the appellant was positively identified, and hence his conviction was justified, I think there is also another glaring point of law which this court needs to address suo moto, regarding the s~ntencing of the appellant herein, for the offence of gang rape. From what I have gathered from the charge sheet, the offences from which the appellant was charged with, were committed on 21/11/2015. The personal particulars of the appellant which formed part of the charge sheet, dated on 19/10/2016, read as follows:- ''Name and Tribe or Nationality of the person charged:- 1. Name:

Mwita s/o Yusufu @ Makorere Tribe: Kurya Age: 16 Years Occp:. Peasant Relg: Christian Resd: Kogete Village/~ From the above, it is obvious that, when the appellant allegedly committed the offence ·in 2015, he was between 15 ar:,d 16 years bf age. Treading by the above particulars, it is obvious that, the trial magistrate ought to have been guided by the provisions of the Children and Young Persons Ordinance CAP 13 R.E. 2002, generally,· and the provisions of section 22(2) of the same Chapter in particular. This subsection states as follows:- ''No young person shall be sentenced to imprisonment unless the court considers that none of the other methods in which the_case may be legally dealt with/ by the p~ovisions o_f this or any other ordinance/ is suitable/~ It is easy to discern that, the above cited provision do riot favour the imprisonment of young persons, unless imprisonment is in the circumstances of the case, the inevitable last resort. It follows therefore that, before a trial magistrate sentences a young person to any term of imprisonment, he should by application of his judicial mind and for· sound recorded reasons, have eliminated other methods of legally dealing with such young person, as unsuitable. 14 ¼- On the basis of the material available in the record, the appellant herein committed the offence he was convicted of when he was below eighteen ( 18) years of

age. Unfortunately, the trial court took no no_tice of this and imposed a sentence of life imprisonm·ent in contravention of section 131A (3) of the Penal Code which provides:- "Where the commission or abetting the commission of a gang rape involves a person of or under the age of eighteen years the court shall in lieu of sentence of imprisonment impose a · sentence of corporal punishment based on the actual role played in the rape/~ Considering that the appellant herein being a young person, the trial magistrate, in coming to his decis·ion to imprison him, he should have shown, why or how in view of the provisions of section 22 (2) of the Children and Young Persons Ordinance (supra), other methods of dealing with him were unsuitable. Having considered the case generally, and especially having ruled out the possibility of unmistaken identity, together with the age of the appellant during the commission of the crime, I am of the view that, both conviction and sentence meted against the appellant were untanable, even without canvasing the grounds of appeal. For the aforesaid reasons, I hereby ·quash the conviction and set aside the sentence awarded by the trial court, I order the appellant's immediate release from custody unless otherwise held on a · lawful cause. Order accordingly.

JUDGE Delivered at Mwanza, Thi~ 15th December, 2015. 16