Jumapili Msyete and Another vs Republic (Criminal Appeal No. 26 of 1999) [1999] TZHC 287 (15 November 1999)

. . .·:,: , .. IN THE HIGH COURT- OF TANZANIA ··-., : AT MBEYA ··.·, ·oRrnINAL ·;ktsnicTrQN · · ·(Mbeya R~gistry) · · CRIMINAL APPE,i\L NO. 26·0F 1999 · (From Mp_ozi District Court cr·o· Case _No o 7 /99)

1. J°lJMAPILI MSYEI'E ) APPELLANTS
2. IBRAHIM HALING A,·· 3. ooooooooooooao VERSUS THE REPUBLIC o '° o o • o o o o o o o o o o o o o o .'o ... RPOND!TINT . ·,. The appellants, _in this. appeal, hnving been aggrie·ved by. the . - · decisipn o_f Mbozi District Court of convicting ap.d sentencing them ·. of two counts;· beihg;,;.A.rme Robbery c/s. j 285 and .28()/r :b~ Penal Code and Gang ;Rape c/s. 131A of the same code as am~nd~.d by Acts Noso 10/89 . I and ·4/980 In arguing this appeal, Mr •. Mw~'1gole who a32peared for the appel,lants urged that the conv-iction was ·not ·properly d.one,in the sense that· the appellants were not propbrly identified as it was dark · bn 8/1/99 arid that .only ·P 1 .2 used,.a .tarch to identify the appellants. ;·PW.2. could· not have identified the ·others as they came r1mning from behind them and the fact that tbe. 1st arpellant was holdin~ a gun defintely threatened them. More because the appellants were also • I • • • • lighting torches on them, -they could not iden_t_ify them easily. Mr. Mwangole further urged that its the courts ruling that the I complainant should have mentioned to the 1st person whom be met of this offence a thing which Pl:l.2 did not do when he r~ to the ten cell leaders house. He further contended that it was wrong for the trial court .,. ; :· to shift the b:urden of proof to the appellants. while they did not raise .,,,.1: the defenc·e of alibi and that the trial magistrate relied heavily upo'n . the confessions of the appe],l_ants but the 2nd arruellant I s statement an excapitating are · : ... cannot be said to have beP-n• a confession bu·. 1 ·;_ as his shifting the burden upon th~. 1st appellant. Rb ; s argued that this stat.ement could. no.t be used to -wnvict t'he 1st appel::....u1t without being cbllaborated a thing which is very di3gerous nre beca 1 1se. the statements ' ~ were .. , ~~ndereit.in t:•urt w.hil.e the' appellants ii/ere not even asked whether . / . they have an objection or noto ·<· .•. •: o o o o o • o ,o o/2

In his reply Mr. Nangela supported the convictions by saying that the appellants were properly identifiedbecause the use of the torch was in addition to the moonlight and the appellants were known to PW .2 and . p1,;.3 as they were neighbours and were at a close distance with the witnesses while t;ving and raping··them. As to the tendered statement Mr. Nangela agreed that the appellants were. not asked but said the fact that they did not challenge their the statements anywhere in cross-exaination nor in defence waves the irregularity. He further alledged tB:1:;. the statement of 2nd -ppellant cannt be saie. to be excepil,ating in that he admitted to have .• ~~pediPW.} :i.hi -turns. Since they did not state anywhere that they \vere forced to sign or were--beaten while making their statements then the statements were legally admitted. Mr. Nangela also alleged that since the defences of the appellant were implied alibi. they had to prove were they were on the said night and this could not he said to be shifting the burden of proof to the appellants. · All in all it is obvious that two issues are in dispute here, that is;-

1. whether the statements were legally tendered in court and could be safely relied upon on convicting the appellants, and
2. whether the appellants were -properly identified. Now going through the proceedings and statements of the appellaYJ.ts it goes without saying that; they were not asked if they ha.d an objec:jO~ or not. I3nt experience shows that where the statements were taken under threats the a.ppellants say so when they ar.e being tendered, during cross- examination and even iri their defences even without being asked. ·:.· j ,, This was again not done. But assuming that the statements are to be disreg:rrded by this court on the reason that they were not properly tendered in court I find t ha.t this will be acquitting the appellants only on technical grounds for what has been ,stated in the 2 El.id statements is exactly . •'. and in line with the evidence adduced by the Re-public witnesses. May be that was ,.-,_ during trial. reason why the s~~ waj_ no~ challenged by the appellants l> In the sense that they ·admitted preparing to go 2nd somc1-.rherc, meeting P'v.2 and Phr.3 while in possession .o( a gun, tying whicn up p;,1.2, raping p:J.3 runr,ing with the said bicycle ,:; :_.: th3y later threw awayo They even admitted knowing PW.3 and PJ.4 before the offence took place. eoo ■ •o/3

• 3 is In view of the above I believe that the said irregularitucurableo As for the issue of identification, ➔ i;. ·r-1 I have mentioned above that P 1 ·J o2 and PWo 3 were neighbours with the appellants having lived together in the same village so they knew each other before the offence was doneo Moreover there was a moonlie;bt ,a11d use of torches. Apart from close contact during the tying up and rappings these were conversations going on. For persons who know en.ch other I believe the circumstance for proper identification were very clear. Its true that there was a terrifying situation but it has been held that identifidation horrifying reliableo (Sec Hassan Juma under situation is -~--- .... Kangenyero & Others Vo Repo [i99[/ TLR. 100 ) • In the case before us the appellants were known t' the witnesses and were identified by two people actually and there was no n0ed for collaboration as held in the case of Mohamedy-0 Banesi ~7 Others V. R. /1-9897 TL.."R. 134. Actually ,3ven if one would .insist on collaboration in this case the situ.at ion has been takGn care for by the app:::)l lant 's statementso Having satisfied myself then that the appellants were _properly identified and even without considering the statements tendered in court, I find that the appellants were properly convicted and sentenced of the offences charged with and I accordingly dismiss the appeal and upheld the convictions and sentences. It is so ordered. At Mbeya 15th November, 1999