Emanuel Stephano vs Republic (RM Criminal Appeal No 63/99 & 64/99; RM Criminal Appeal No 63/99 & 64/99) [1999] TZHC 241 (21 May 1999)

S r • ..• V 1 • V V THE RESIDT MAGIMUTS CT QF AIWSHA • V . V AT ARUSHA V V V EPBMER APPELLATB IISIcTION RM V V RINAL APPEAL No63/99 & 6199 • (c/F H/C CR.APP, NO. 85j98 allGINAL- ARUSHA V = V D/C CR.CASE NO.179/9) V V V • V &ANUEL STEPHANO .......... APPELLANT V Versus V• •• • V V V V PPONDT V V . JUDGMEN.T VVV . KPRN TV V V V V V V The appellants kZzyoTayari

• V V• DicksonflewiiLteferx1ed banairafter as U& 1s4 Zndand 3rd • V V appallante i'espectiyely). were convict,ed of st4enipked rapa .14 i3V V the Penal Co3.e and s&Ltenced to ten (10) earsf In V • V addition they were rdered to saffer six strokes of the Can8• This V is an appeal against con.ction and sentence4 ..Mr, icinabo learned V • V V advocate represented the .1st and 3rd appellants while Hr 4 Nakange . V ôa'ned advccate ropresented the 2rd appellant. V V •V V V. V There are have two appeals. M(ct.J)Grina1 Appeal no. 63/99 relates to the 2nd appellant while RN(tJ) VCrijniria3 Appeal no.64/99 V relates to the 1st and 3rd appellants. The appeals have been Cns4 V V V dated4 Both Mr 4 Kincbo and Mr Makange sul.tted in their ur;tten V V that the appellants were not properly identified the conditions Vf V V identification were unfavourable. V V V V V The facts recard reveal that . ajwi4 8.30 p.m on 1/;/98 Anna V V V Jacob (PW.i) and Robert Joseph (pW. II) w'e walking from a ShOP4 • V They across a group of lads who waylaid them. After imrobilising V V J II1 they )1flJG(J fkT. 1 ifl a banana/coffee shambao V V.V V V V

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• 3 2 While there the 1st appellant fel her on -the ground and when she attempted to raise an alarii the filled her mouth with sand to scof lie the noise. .The 2nd appellant he undressed her and parted her legs making it easy £r the 3rd appellant who disc ended on her and Baped her.. Nathaniel tatan(PW, II) happened to be passing by. He heard some noise fri the shainba and on going there he surised ie appellants. He identified the 1st appellant as he is known to hthi. Ha could not • identify the rest. PW. I stated that he identified the ,1t appellant and the rest as they were with her for a sufficiently lbngtime. She stated that he is related in some way to the 1st appe1lant. . .PW. Ii took her to home where 1iLS wife gave her some clothe. They reported the matter to the police the same night where they were issued with FF3 thibit P1. PW. 1 was taken to hospital the same night where she was admitted She was however not examined until the third day. DrToure .(pw.iv) w'io examined bar di.d not find any semen or bruises in her private parkts. • . •. - Following the 'identification of the 1st . appellant he was sought for the some night at residee. He was found wth'the 2nd and
• . • • 3rd appellants. In their defence tb 1st appellant stated - that he was home all night. Around midnight the 2nd and 3rd appellants went there 0,• - - to sleep. According to their evidence they came from a disco dance and as it was rather late their decided to spe the night at lSt app- Uant. • On this evidence' I am satisfied that the appellants were properly convicted. The 1st appellant is known to both P11.1 and PW.It so the question of miaidentification could not 'arse. Again the appellants were fouid together a few hours fter the offence was committed.
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• .. - •1 The 2nd and 3rd appellants assertion that they were there because they could not make it to their homes from a disco dance i5 to say the least chimerical. With respect, I -sin inclined to agree with the • learned trial mastratbe that there was, ui'ficie direct and circu- mstantial evidence eonnecting the appellants with the crime with which they were convicted, In the premises the appeals are diuissed in • their entirety. - • sgd. (w.. N. B. Kapaya)
• PRME.J - • 21/5/99 •. Delivered in court this -21st day of May 1999 in the presence of •
• Mr. Kinabo for appellants in the - presence of Mr. Masara2.r respondent. Sgd. (w. N o 13. Kapaya) PRN UT.J - • - -: 21/5/99. ATAEUiA -. 21/5/99.

-. I hereby certify thIs to be a t'ue copy of the original.

• AG.DISr1ICT RISTRJR

• ARUS}A

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