Msafiri Malik and 2 Others vs Republic (DC Criminal Appeal, No. 4 of 1999) [1999] TZHC 263 (9 April 1999)

IN THE HIGH COURT OF TANZANIA l AT DODOMA. (DC) CRIMINAL APPEAL,NO. 4 OF 1999 ORIGII{\L CRIMINAL CASE NOo 108 OF 1996 0? THE DISTRICT ccr:1'.1:' OF KONDO.A. DIS'I'IUCT AT KONDOA. BEFORE A~N. MA.PUNDA, Esq., SENIOR DISTRICT MAGISTR11.TE

1. fv!.SAFIRI MALIK ) 2., RASHI:9I AB:)ALLAH ) . • 0 • 0 • • APPELLAWI·S
2. HUSSEIN ABDALLAH ) versus THE P.EPUBLI C • o • • 0 C wt 0 0 0 • • RESPONDENT J U D G M E N T Kileo 2 J.: The three appellants, namely Msafiri Malik, Rashid Abdalla.'1 . and Hussein Abdallah were convicted by the District Court f Kondoa of Rape contrary.to section 130 and 131 of the Penal Code. The;y were each sentenced to twenty years imprisonment .ey have ,-. •"/. : .. , -"' now appealled§;gainst the decision of the District Court.. The memorandum of appeal filed jointly by the appellants cntain two main grounds of appc:11, first that the learned tJcial magistrate erred in relying on the PF .3 pr;duced in court without calling to court the medical of:tlcer who prepared the same for eross - examination and secondly that they were not themselves ex~:fned so as te establish their involvement in the ciime. At the hez,::':i.ng of the appeal the appellants person. The Repltbli~·was represented by Mro Masaju State Attorney. Admittedly; the case for the prosecution depended mainly on identification of the complainanl assaillants as pointed out by Mr. Masaju. Mr. Masaju was of tl1e\pinion that the appellants were sufficently identified and he in the circumstances supported conviction though he was doubtful about the propriety of the sentence of twenty years imposed. • •• 0 ./2

_j 2 Now, ,/the question he:+·e is, were the appellants in the circomstandes of the.:,case properly identified as the complainants rapists ? s ques{in will l 0 addressed to be(Fing in mind ,u . that in Criminal matters such as the one at hand the burden is on the prosecutio to prove its case and the standard of that proof is pegged on 19 beyond reasonable doubtn According to the complainant on the material day at around ' 7 p.m~ she was in her way home from a pombe shop when she was assailled by the three appellants who dragged her to the house st of the 1 - appellant where they each had carnal knowledge of her in turns. She alleged that theis wentT,on until about 4oOO a.me when she left and reported to the ten cell leadera The circumstances of the case show that the complainant was assaillad at 7 P• me when she was on her '.vas home from a pombe shop. Ordinarly by 7 p.m~ darkness would have setiul.e · The complainant did not explain how she was able in the circumstances of the case to recognize the appellants. Moreover 7 she stated herself that at at that time she was coming from a pombe shop. The possibility of her reasoning capacity having been due to intoxication cannot be ruled out.· Her testimony show that she left for the ten cell leader at around 4 a.m. and was subsequ8ntly referred to hospital. Bearing in mind the standard of proof in Crimi~al matters I am not patisfied that the case for the prosecution in this case met that standard. The complainant did not dated how she was able to identify the appellants in the circumstances of the case, The learned State Attorney did argue that the fact that two.of the appellants were not seen in the village soon after the incident points to their guilt.· I would however, in responce to this say that the yi appellant did give an explanation to the effect that he was away from the village looking for food at the material time. There was no evidence to counter thiso o•••••/3

3 Another aspect of the case which has given me cause for dClti'bttcon:oetins the PF.3 tendered in court as an· exhibit. The PF3 indicate that the Police issued it en 28/8/96£ The Medical Officer who filled it in show that he filled it on 2618/960 There is an anomaly _here which the learned trial magistrate did not address his mind to There being Ekdiscreancy in the PFJ3 it was pertinent for the prosecution to :';':-.evidence to explain this discrepancy and to rule out the possibility of foul play. In the Circumstances of the case I have to say that the way things appear there are more questions than answers. In my considered view the case for the prosecution was not proved beyond reasonable doubt •. The appellants were entitled to the benefit of the doubt raised. Consequently I find the appeal to be with substance. I accordingly allom it; quash convictions entered against Msafiri Malik, Rashid Abdallah and Hussein Abdallah and set aside sentences imposed. It is further ordered that the appellants be released from custody forthwith unless they are otherwise held for some other lawful cause. 9/4/99; Before E.A. Kileo, J. for appellants all present .in personQ. · ·.· for Republic - Mr. Masaju. ·c.c. - Mrs. Gondwe. Court: - Judgment is delivered this 9th day of April, 1999. Appeal is allowed. , ... ""· I ::11'/( 1 ;;,r ' - (E.A. KILEO) JUDGE . ·.•1