Yordan Ng'ang'ise and Another vs Republic (Criminal Appeal No. 212 of 2010) [2014] TZCA 2210 (25 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MSOFFE, l.A., KAIJAGE, l.A. And MMILLA, J.A.} CRIMINAL APPEAL NO. 212 OF 2010

1. YORDAN NG' ANG'ISE} ·
2. ATHUMANI HASSAN! .................................................... APPELLANTS VERSUS THE REPUBLIC .................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Mkuye, l.} 24 th & 26 th June, 2014 MSOFFE, J.A.: dated the 12 th day of July, 2009 in (DC} Criminal Appeal No. 63 of 2009 JUDGMENT OF THE COURT The courts below were satisfied that on 20/4/2008 at about 01.00 hours the Appellants broke into the house of PW1 Natalia Mwilapwa wielding a machete and a knife and demanded to be given money. At the time PW1 was sleeping in the house with her three granddaughters namely PW2 Helena Msofu, PW3 Queen Tenywa and PW7 Fadhira Ndalegwa. In the process, they robbed a sum of shs.22,000/=, a jacket, an axe and a bush knife valued at shs.5,000/=, shs.1,000/= and shs.500/=, respectively, 1

belonging to PWl. Further to robbing as aforesaid, they also raped PW2, PW3 and PW7. To be specific, the first Appellant raped PW2, the second Appellant raped PW3 and one Kikoti, whose charges were withdrawn on 20/10/2008, raped PW7. The incident was reported to PWS Robert Kindole, the Village Chairman, and to the police where PW8 D.4035 Detective Corporal Florian issued PF3's to the girls and also visited the scene of crime( s). On the basis bf the above evidence the Appellants were convicted of armed robbery and rape and sentenced to terms of thirty years imprisonment, respectively, with an order for the sentences to run concurrently. Each was also sentenced to corporal punishment of twelve strokes of the cane in respect of the rape count(s). Their first appeal to the High Court was unsuccessful, hence this second appeal. Mr. Alfred Kingwe, learned advocate appearing on behalf of the Appellants, has listed two grounds of appeal which boil down to one major ground of complaint. That the evidence of identification in the case was not enough to justify the conviction in question. 2 j'

In elaboration, citing the celebrated case of Waziri Amani v. Republic [1980] TLR 250, Mr. Kingwe was of the view that the conditions obtaining at the time of incident were not conducive for correct identification of the Appellants. The intensity of the hurricane lamp was not disclosed, the period of 30 minutes used in executing the crime was not enough to allow for correct identification, that the witnesses knew the Appellants prior to the date of incident was not enough assurance of correct identification, etc., he asserted. · In rebuttal, Mr. Abel Mwandalama, learned State Attorney, held a different view. He was of the view that the conditions were favourable for a correct identification of the Appellants. The hurricane lamp was placed on a vantage point, that is on a table, to allow for correct identification. Furthermore, there was ''a zero distance" between the witnesses and the Appellants, particularly at the time of rape, the witnesses knew the Appellant's before the date of incident, and the witnesses mentioned the Appellants at the earliest possible opportunity, he contended. The determination of the crucial aspect in this case need not detain us. As correctly submitted by Mr. Mwandalama and Mr. Kingwe, it is fair to 3 r

say that the prosecution case was to stand or fall on the evidence of identification. On this, it is common ground that the incident took place at around 01.00 hours under conditions that were not favourable for correct identification. Notwithstanding this state of affairs, we are in agreement with Mr. Mwandalama that the Appellants were properly identified for reasons he stated. We will only add by way of emphasis the following points:- One, the witnesses knew the Appellants prior to the date of incident. They were fellow neighbours in the village. This aspect of the case has no dispute in the sense that even the Appellants agreed that much. Two, it is also not in dispute that the incident took a period of 30 minutes. On this, we do not agree with Mr. Kingwe that this was too short a period to allow for correct identification of the Appellants. On the contrary, we are of the settled view that this was too long a period for the witnesses to observe the Appellants and accordingly identify them properly. Three, it is also undisputed that there was a hurricane lamp illuminating the scene of crime(s). The only point of contention is whether or not the intensity of the lamp was bright enough to allow the witnesses correctly 4

identify the Appellants. Fortunately, the judge on first appeal dealt with this aspect, and this is what she stated:- . . . PW2, PW3 and PW7 were able to identify the · appellants through sufficient light which illuminated from the hurricane lamp. These witnesses at that time were studying by using the light from hurricane lamp put on the table. All the witnesses intact in their testimony stated that there was enough light In my view, if the witnesses were able to study by using the hurricane lamp then the said lamp must have been adjusted to provide brightness sufficient to enable them read whatever script they were reading. And if that was the case it would not have been a problem to see a human being who is huge in size. Under the circumstances, the light must have been bright enough to enable unmistaken identify. With respect, we entirely agree with the judge and we propose not say anything more on this point. Four, it is also in evidence that the witnesses and the Appellants stood at close range. To borrow the words of Mr. Mwandalama the respective parties were at ''a zero distance'~ Indeed, as again correctly submitted by 5

Mr. Mwandalama, in raping PW2 and PW3, respectively, the Appellants and the witnesses must have been at 'a zero distance'~ This is because by its very nature the offence of rape cannot be committed by a person who is a distance away or apart from the victim. Closely added to the above aspects of the evidence is the fact that PW2 and PW3 named the Appellants to their father, PW4 Dominic Chalamila, a few hours after the incident. To be exact, it was around 06.00 hours when they did so. It occurs to us that this was consistent with their reliability. We are supported in this view by this Court's decision in Marwa Wangiti and Another v. Republic [2002] TLR 40 where at page 43 it was stated:- . . . The ability of a witness to name a suspect at the earliest opportunity is an a/I-important assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent Court to inquiry . .. In our considered opinion, the cumulative aspects of the case pointed out above lead to one conclusion. That, when all is said and done, the 6

prosecution side established the case against the Appellants beyond reasonable doubt. The appeal has no merit. We dismiss it. DATED at IRINGA this 25 th day of June, 2014. J. H. MSOFFE JUSTICE OF APPEAL S. S. KAIJAGE JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~n Z.A.MA DEPUTY REGISTRAR COURT OF APPEAL 7