Bahati S/O Mtega and Another v Republic (Criminal Appeal No. 481 of 2015) [2016] TZCA 50; (02 August 2016)

IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA

(CORAM: MJASIRI,J.A., JUMA, J.A., And MUGASHA, J.A.)

CRIMINAL APPEAL NO. 481OF 2015

1. BAHATI S/O MTEGA

2. FLOWIN S/O MTWEVE ............................................... APPELLANTS

VERSUS

THE REPUBLIC ................................................................ RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Iringa) (Shangali,J.)

Dated the 18th day of September, 2015

in

Criminal Appeal No. 7 of 2014

JUDGMENT OF THE COURT

2nd & 4th August, 2016

MUGASHA, J.A.:

This appeal originates from the decision of the District Court of Ludewa. The appellants were charged and convicted with the offence of gang rape contrary to sections 131A (1) and (2) of the Penal Code [Cap 16 R.E. 2002]. They were sentenced to life imprisonment with 12 strokes of the cane. Aggrieved, the appellants unsuccessfully appealed to the High Court where the appeal was dismissed in its entirety.

The brief account of the prosecution is to the effect that: on 26/10/2012 at 20:00 hours, the appellants gang raped ESTER MCHILO. It was alleged that, on the fateful day, PW1 was accompanied by her granddaughter PW2 NEEMA MHAGAMA and they were heading to Lipangala village from Ludewa. While on the way they met the appellants and one of them asked PW1 if she had a mobile phone. When PW1 declined she was hit on the head and thrown down. Thereafter, the 1st appellant raped her while the 2nd appellant held her down to ensure that she does not raise an alarm. Subsequently, the 2nd appellant also raped PW1 while the 1st appellant kept watch.

On seeing that her grandmother was attacked by the appellants, PW2 ran away to the village and informed PW3 and PW4 about what had befallen PW1. PW3 and PW4 went to the scene of crime and found the 2nd appellant still ravishing PW1. The 1st appellant took to his heels after seeing PW3 and PW4. The 2nd appellant was apprehended and on the same day and he was taken to the village office and later to the Police Station together with PW1. PWS G 171 PC MNATA who also recalled that on 26/10/2012, PW1 complained to him that she had been raped in turns by the two appellants; but that the 1st appellant ran away and the 2nd appellant was caught at the scene of crime. PW1 was issued with the PF 3 (EXHIBIT P.1) and upon being medically examined by DR. DAVIS MWAKALAGO (PW6) it was established that PW1's vagina had watery discharge containing male sperms.

The appellants denied each and every account of the prosecution detail. They all contended that, the charge was framed against them because of the long standing disputes each one had with the prosecution witnesses. The 1st appellant, pointed out to have grudges with prosecution witnesses ranging from tax collection and a pending trespass case. The 2nd appellant claimed that, there exists a long standing dispute with PW1 over non-payment of the loan.

At the hearing of the appeal each appellant filed a separate memorandum of appeal. The two memoranda of appeal listed a total of thirteen (13) grounds of appeal which may conveniently be condensed into five major grounds namely:

1.   That they were not properly identified at the scene of crime.

2.   The Courts below erred in rely on evidence of PW2 who was the witness of tender age.

3.    That, their defence was wrongly not considered.

4.   That, the charge was not proved against the appellants.

5. The Court erred to rely on confession of Flowin Mtweve to convict the 1st appellant since that the statement was not tendered in the evidence at the trial.

When the appeal was called on for hearing the appellant was unrepresented and Mr. Mwandalama, learned Senior State Attorney represented the respondent Republic.

The appellants opted to let the respondent Republic to respond to their grounds of appeal before giving their elaboration on the grounds of appeal. On his part, the learned Senior State Attorney resisted the appeal and supported the conviction and sentence. He pointed out that, the prosecution proved that PW1 was gang raped by the appellants which is corroborated by evidence of PW1, PW2, PW4 and PF3 (EXHIBIT P.1) . He submitted that, the 2nd appellant was arrested at the scene of crime ravishing PW1 and the 1st appellant who ran away was properly identified by PW3 and PW4 because he was familiar to them. He added that, the appellants were also mentioned at the earliest moment. He concluded that, notwithstanding that the trial court did not consider the evidence of the appellants, the shortfall was remedied by the High Court which properly re­ evaluated that evidence.

The 1st appellant challenged his conviction arguing that it was wrongly based on the 2nd appellant's confession which was not produced in the evidence at the trial. He added that, the hat which was picked at the scene which is claimed to belong to him, was not produced in the evidence at the trial. The 2nd appellant's complaint was to the effect that his name is FLOWIN MTWEVE and not FLOWIN MLILWO which appears in the Charge Sheet.

Both appellants complained about the variation of the scene of crime whereby the charge sheet indicates that it was at Lugarawa while the prosecution witnesses said that the offence was committed in Lipangala. Also they argued that, their defence was not considered. They all urged the Court to allow the appeal as the charge was fabricated against them.

Apparently grounds 2, 3 and 5 were not raised in the High Court. It is now settled that, as a matter of general principle the Court will only look into a matter which came up during trial and was decided and not on matters which were neither raised nor determined by the trial court or the first appellate court (JAFARI MOHAMED vs THE REPUBLIC, Criminal Appeal No. 112 of 2006 [1981] TLR 149.

In any case, even if we were to consider the new grounds, yet, they are not merited. At page 21 of the record of appeal, it is clear that before PW2 gave her unsworn testimony, she was subjected to voire dire examination and the trial magistrate was satisfied that, she understood the duty of telling the truth but she did not know the meaning of Oath. Furthermore, during trial, PW2 was among the prosecution witnesses who testified. On seeing what had befallen her grandmother she ran to the village for help which was heeded to by PW3 and PW4. Besides, at page 22 of the record when she was cross-examined by the appellant PW2 stated as follows:-

'I don't know you, I have never seen you but I saw you on date when my grandmother was attacked. I am here to give the evidence of what happened to my grandmother. Nobody taught me to say what I have said...”

In this regard, section 127 (2) of the Evidence Act [CAP 6 R.E. 2002] was complied with.

The complaint on the varying particulars of the 2nd appellant is not merited because the charge sheet which was read over to the appellants identifies the 2nd appellant as FLOWIN MTWEVE and not FLOWIN MLWILO. Furthermore, the complaint on the variation of the scene of crime is also without basis since PW1 and PW2 testified to have met the appellants while going to Lipangala from Ludewa. In this regard, the complaints of the appellants which were neither raised at the trial nor the first appellate court are indeed an afterthought.

The other ground which we consider to be an afterthought, is the appellant's complaint that the first appellate court disregarded their defence and that the confession statement was not tendered at the trial. These shall be considered at the later stage in the determining whether or not the appellants were properly identified at the scene of crime.

In terms of the medical evidence contained in the PF3 (EXHIBIT P.1), it is undisputed that PW1 was raped. The crucial issue as to who gang raped PW1 revolves on the question of identification. In this regard, since the crime was committed at night we asked ourselves whether in the circumstances of the case the appellants were properly identified at the scene of crime.

It is undisputed that the appellants and the victim knew each other before the fateful incident where the two appellants took turns to ravish while keeping watch over the other. The rape was committed at a very close proximity.In HAMIS ALLY @ KAZIGWA vs REPUBLIC, Criminal Appeal No, 66 of 2003 (Unreported), the Court held that, where the victim and the assailant are well known to each other and the offence is committed in close proximity then moonlight can suffice for positive identification. In YORDAN NGS'ANG'ISE AND ANOTHER vs REPUBLIC, Criminal Appeal No. 212 of 2010 (Unreported) the Court considered that, correct identification can be facilitated by, a zero distance between the witnesses and the appellants, particularly at the time of rape, and if the witnesses knew the appellants before the incident and mentioned them at the earliest possible opportunity.

In the case under scrutiny, not only was there moonlight, and the offence was committed in close proximity or zero distance, but PW1 who was familiar with the appellants, recognized the 1st appellant by voice. The 2nd appellant was caught red handed ravishing PW1. Moreover, it is on record that, prior to the rape PW1 conversed with the appellants who asked her if she had a phone. As such, this was the initial opportunity to recognize the familiar appellants who thereafter raped her. Also that PW1 was attacked by two people is cemented by the evidence of PW2 whose testimonial account is to the effect that her grandmother was attacked by two people. Apart from the victim, PW3 and PW4 who responded to the alarm and went at the scene of crime, also knew the appellants before the incident. They all testified that, they recognized the first appellant who ran away and found the 2nd appellant ravishing PW1.

Moreover, PW1, PW3 and PW4 mentioned the appellants at the earliest moment and the matter was reported at the police within twenty four hours from the occurrence of the fateful incident and the appellants were arrested on the same day. This was consistent to their reliability in the light of what this Court said in MARWA WANGITI AN D ANOTH ER vs REPU BLIC [2002] TLR 40: honest witness and there is no likelihood of mistaken identification"

Having regard to the cumulative evidence, we see no cogent reason to fault the lower courts' assessment of prosecution evidence and its credibility. We wish to repeat what we said in OMARY AHMED vs REPUBLIC

[1983] TLR 32 that:

"The trial court's finding as to credibility of witnesses is usually binding on an appeal court unless there are circumstances on an appeal court on the record which call for a reassessment of their credibility'

Since the best evidence of rape comes from the victim, we are satisfied with the credible evidence of PW1 who gave her account on how she was raped in turns by the appellants.

We are in agreement with the learned Senior State Attorney that, notwithstanding that the appellants' defence was not considered by the trial court, this was remedied by the High Court which properly re­ evaluated such defence.