Samwel Mihambo vs Republic (Criminal Appeal No. 230 of 2013) [2014] TZCA 2180 (12 March 2014)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: MSOFFEJ.A., KIMAROJ.A.,And MJASIRIJ.A.l CRIMINAL APPEAL N0.230 OF 2013 SAMWEL MIHAMBO.. ........... ............... .................. APPELLANT VERSUS THE REPUBLIC .............. ........................ .............RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Tabora) (Lukelelwa, 3.) dated 25thJune, 2013 in Criminal Appeal No. 129 of 2009 JUDGMENT OF THE COURT 10th & 12th March 2014 KIMARO.J.A.: On 13th February, 2009, the District.Court of Nzega convicted the appellant of the offence of rape. He was sentenced to thirty years imprisonment. It was alleged in the charge sheet that the appellant had carnal knowledge of one Veronica Peter without her consent.

In the trial court it was the complainant and three other witnesses who gave evidence in support of the prosecution case. The prosecution case was that in the night of 12th May, 2008 the complainant Veronica (PW1) was asleep in her house. She was a married woman. Her husband was working on a construction site of a road at Nzega so he was not at home. In that night she heard someone knocking at the door. Upon inquiry on the identity of the person who was knocking at the door, the appellant identified himself by saying that he was Enosy Machibya, which was the name of her husband. Believing that the appellant was her husband, the complainant (PW1) opened the door for him and went back to her bed and slept. The appellant followed her at her bed, held her neck, pulled her down and inserted his penis into her vagina. The complainant had not put on her underwear. As he was in the process of raping the complainant, the appellant threatened to kill her if she raised any alarm. It was after the appellant was through with the act of raping the complainant that she raised an alarm. The complainant said she could identify the appellant

because, she had lightened a local lamp and he was living in the same village. Maria Francis (PW2) the mother in law of the complainant (PW1) testified that she lived in the same homestead as PW1 but in a different house adjacent to that of PW1. She heard the complainant when she raised an alarm. She responded to the alarm by going to the house of the complainant. With the aid of moonlight she identified the appellant who was known to him for years. The appellant was running away from the house of the complainant. Like PW2 Mhoja Kabundula(PW3) was living in the same homestead as PW2 and PW1 but also in a different house. He too, heard the alarm that was raised by the complainant (PW1). He also responded to the alarm raised by the complainant and when he went there he saw the appellant running away from the house of the complainant. The witness (PW3) is the uncle of the husband of PW1. According to the evidence of PW2 and PW3, the complainant mentioned the appellant by his name to be the one who committed the offence of rape to her.

Another witness, Mihayo Shija, (PW4) the Village Executive Officer of Mbogwe village where the offence was committed said that the incident was reported to him and the appellant was mentioned as the person who committed the offence. When the appellant was arrested and taken to him he admitted having raped PW1. According to PW3 the admission of the commission of the offence by the appellant was made to PW4 in his presence. PW4 said the appellant signed a document in which he admitted the commission of the offence. The document however, was not tendered in evidence. The appellant denied in his defence to have committed the offence. The appellant said he was arrested on 11th May 2008 and taken to PW4 where he was informed that he was arrested for committing the offence of rape to PW1 of which he denied. He said PW1, PW2 and PW3 fabricated evidence against him. The appellant said he also responded to the alarm that was raised by PW1 and he heard the complainant saying that she did not identify the person who raped her.

Upon evaluation of the evidence, the trial court was satisfied that die appellant committed the offence. The findings of the trial court on the conviction of the appellant for the offence of rape and the sentence that was imposed on him were upheld by the High Court in its appellate jurisdiction. The appellant is before us with this second appeal. The appellant filed several grounds of appeal complaining'about his conviction and the sentence that was imposed on him by the trial court and sustained by the first appellate court. His basic ground of complaint is his identification at the scene of crime at the time of the conlmission of the offence. He lamented that the identifying circumstances were not favourable. He also complained of using evidence of PF3 to convict him. The family relationship » of the witnesses who testified against him, namely the complainant's mother in law and the uncle of her husband, was another area of complaint.

During the hearing of this appeal, the appellant appeared, in person. He had no advocate to represent him. The respondent Republic was represented by Mr. Juma Masanja, learned State Attorney. The appellant opted to let the learned State Attorney first express his views on the grounds of appeal. The learned State Attorney supported the appellant's appeal. The positive move taken by the learned State Attorney to support the appeal simplified the work of the appellant. He had nothing more to tell the court. He prayed that his appeal be allowed. On his part the learned State Attorney opted to focus on the identification of the appellant at the scene of crime alone because that was the crucial issue in the case. He submitted that the evidence of identification leaves doubt on the credibility of the prosecution witnesses. Starting with the evidence of PW1 the learned State Attorney said that if the complainant was a truthful witness, she could not have failed to identify the voice of her husband and mistaken it with that of appellant. He also wondered why the appellant was not arrested on the spot when he

visited the scene of crime if he was the one mentioned by the complainant to have committed the crime. As he went through the evidence of PW4 who testified that the appellant made a written document admitting the commission of the crime, the learned State Attorney wondered why the written document was not tendered in court to corroborate the evidence of the prosecution witnesses. He prayed that the appeal by the appellant be allowed. With respect, we are in agreement with the learned State Attorney that the identification of the appellant at the scene of crime was not watertight. Looking at the prosecution evidence in its totality, we cannot say that the prosecution evidence on the identification of the appellant at the scene of crime left no doubt. We say so because of two. main aspects. One, as pointed out by the learned State Attorney we also wonder how the complainant could fail to identify the voice of her husband and mix it up with that of the appellant. To us it is not something normal. Unless the complainant was suffering from serious illness involving loss of memory it would not be normal for her to fail to identify the voice of her husband. Two, PW4 said the appellant made a document wherein he admitted the

commission of the offence. We ask ourselves why this document was not admitted in evidence. It was an important document to corroborate the evidence of the prosecution particularly because the appellant denied having admitted the commission of the offence. Given this shortfall in the prosecution evidence, we are satisfied that the prosecution evidence on the identification of the appellant was not credible. Starting with the case of Waziri Amani V R [1980] T.L.R. 250, a landmark case on identification the Court has insisted on the identifying witness qivinq evidence which will leave no doubt on the identity of the accused person. That has not been done in this case because of the reasons we have indicated above. Regarding the question of related witnesses giving evidence the law is now settled that what matters is the credibility and competence of the witness and nothing more (section 127 of the Law of Evidence Act, [CAP 6 R.E. 2002]. See also the case of Kabagala Kudumbaga & another V R Criminal Appeal No. 128 of 2007(unreported).

Since the identification evidence of the prosecution witnesses left doubt on the identification of the appellant, we fault the learned judge bn first appeal for failure to assess properly the credibility of identifying witnesses. They were not credible witnesses. We allow the appeal by the appellant on this ground, quash the conviction and set aside the sentence. We order that the appellant be released from prison unless he is held there for other lawful purpose. It is so ordered. DATED at TABORA this 11th day of March 2014. J.H. MSOFFE JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. YA SENIOR DEPUTY REGISTRAR COURT OF APPEAL