19781211 TZHC Dodoma

IN THE HIGE COURT OF TPiTNIA ft. AT DODON CRThIN Th T No 63 OF 1978 CF. MISC. CRIMIhAI CAUSE No. 3 OF 1978 (Originl Criminal Case No. 180 of 1977 of the District Court of Nanyoni at nyni) Before: P.. N. Moshh, Esq. Senior Magistrate. NATILNIEL NASSON . , . 0 IT versus THE REPUBlIC • , . • , . REOP,DENT UDG N B NT J0LTHd5 9 J. The appellant was convicted, of burglary and rape and sentenced to concurrent torrs of imprisonment of three years and two ye.ars rospectively. Against the convictions he has petitioned this court. The.,und.is'puted facts show that, the complainant' young woman réturne.d home from P. wciding ceremony late at 'about two o' clockon ,th relevatit night, and that after locking the 'door behind her she tirp. to bed. She had hardly slept when,suddenly, three mel' forced their way in and one of them, whom, she claimed to have identified to be the aoneliant., it a koroh,oi that was inside. As the case depended entirely on.identification I find It nccessary to quote the relevant part of her own evidence 'thus :- .......I closed the door (native-m.do door) and then slept. As'I was sleeping three persons .inluding accused suddenly got int,o.: my house' and the accused lit my lamp (korohoi). They opened the door and gained access into the house. Accused in the dock came and got hold of 'my hand 'end threatened rio that if I raised an alarm I would die The other two persons told acCused to put off the lamp and he. did so when the rest' approoc]:lodi where I was0. When I was seized by the accueed I got up and :(he)'threatened to kill me the accused was the first to intercourse (sic) tee -,* - After the appellant ravishing her,she continued, the other two took their tunes. in lrnowing her. sxtally. They tharciIter started all over again. Their desire gratified, theappel1at, she claimed, then eniiic1 of her. if the'e w.:no ot1aer person keeping her conaeiy in the house night. Thoe had been no, other person :flI she replied so. They than decided to take her outside in ordor, as thCy t, to lye her a prcsent'hmt, giving a push to the wail of the house they broke out of it takinr•' her uakd a]ong with them. Once outside, however, sho.mauagcd to bre'k free tQ ecape furtherpunishment. She rushed to her fa1ir 1 s house in the neighbourhood where she was given some oloth . to tie.rouid her waist. From there, she rported to Pw.2, the cell lecaleT, who arranged to take her to the police station on the saoigb.t. little later that night thea]?p chant was found lo aping et his father' s huso and. arrested. The appellant in his defc:c.e categorically denying involveciont, testified that he was a teacher in the I'P3ëya Region but that at the rievant time hêirr'on eaestadng with lais father. The latter, incidentally, was a clergymen- cum-.tailor in that area but hc was not otherwise a native of it He added that, having been there for the previous three days only, he was not 'anailiar with the eopleand that', uui particular, he had never cre across the complainant. He . also put up an alibi in that, returniñp horo a lit"de late that night he found his younger brother with whom ho was sharing a room had gone to sleep. Dw.1 , his uncle, too, had gone to bsd in the adjoining room but he heard him return and opened the door for him. However, the evidence of his uncle did taot fully beEir tii,is out. For he said he 'i.'p,s faCt asleep when the appellant returned .d.ihou['ht the el . ......ci lant' younger brother may have oened for him. . The learned senior magistrate in his juJg'eet appears to have found the . coniplainant s allgpation implic .tin the appellant, to have uiport rori. the ..ccount of Pw 7. The witness in his, evidence claimed to have soon the compLiinant the appellant tgethor on the material fli t Tie stery is however rather confusing, n.nd to do it justice I eill hove it quoted, thus- + *4 - 3 - ..•.. 11 • renembor on tl'm night of 23/10/77 corn p leLinant cane to roy piece. She cane and old rae thrat she was caurht by three persons raped. I was with Michael Potro (P.w.2) whO is a ccli i.a1e. I then asked her w]T!.eter see could i r eco:je any of there when she said she COUld •reco(TflieO one of than by facial a pearance. She further told. me the very person who arac tá her place at 8.00 p.m on 22/10/77 wee. th.vcry one I was at hone end coripicinant came with this person the accused (witness points at eccuod) came to my place during the niPet. The complainant • cacao to my place because she wanted to avoid the • accused. The aoraplainreit ran to nay placd rand I asked accused why was . he going to poo.pio's houses when aconsed told mc he was after a :irl who • was staying in the complainant' s house. came to lmow that accused was the one who cacao to I hrvlsenfcccd before bocause he isa tailor ............... The underscoring is mine. The witness is not clear if he saii'the a'gellant on 2 the night of October 22 and, ass1ing that his account is otherwise true, it might well be he had. only been ..±olrl.hy 1 the comelainant women that there was a rirtn chasing her but he had not himself seen hire. The story woi.ld however. suspect. The coraplainruit nonen woul 1 hove been the person most annoyed and best place cI to tell it but there is not a word about it in her evidence. Pw.2, too, although he is said to have been present when the -complainant was referring to the incident of the previous night, did not say anything about it. If there was any trth in tie story, the auitnossos would have disclosed it in their police statc....ents, the fact that the prosecutor did not panino Fw.1 and JPv.2 on such an important matter serves only to point to the dean:or of acting on the evidence of Fw.7 with respect to an incident on the night of October 22. hccordingly, little rc.;arcl should have been had to such evidence. In the result, the evidence of the complainae.t implicating the appellant was that of an only witness, and the conviction based, as it is, only on such evidence, it cannot safely stand unless her account is found to be ehsolutely roliablo 1 She claimed certatilaty that the ap -rellant was anong the hud. She was however unfamiliar with him, hence her having referred hire to the police only as the son of Nasson. She could not, therefore, have relied on his voice for identification and the only means she had for this purpose was the small, native lamp called "koroboi which, it is coon Imowledge, provides but scanty illumination. - 4 - The ii ht itscf uos on vary brfly, un 1 6rstaudably because the bu l.ars were anxious to hideaway their identity. The complainant , 'ric d eoman whose husband was then in prisonhad rct'xcd very late at ni:.ht aftor attendind a weddina ceremony, and for all that was known, she may hdve been both. drunk xhaustod. In such cn:id:bion, and rdven that they took her "uiiawards and that the li(tht was: scanty and shoitlived, could she have loon that sure that the appellant was one of them? She miht have had no reason falsely to pick on him while it it is not insipuificent that she mentioned him at the outset, but 'I am unable to sar without aualms that she could not have ben thisiaken when she mentioned the appellnt. I think, thoAff0j that in the Apht,of, the Xoregting 'observations, his alibi ouht to have been accepted as raisinr roasonable doubt thRt, he • may have been sloopinp at home at the time of the hurrlary • In the result, as 1 do not find it safe to uphold the cdivictions, they are hereby set aside as are the sentencs thereon., The appellant is to be clischarpod if he is not otherwise lawfully held. : • Judgment delivered this 11th day of jecembor, 1978. P. M. Jd' • J'[ I