Shiku Salehe vs Republic [1987] TZHC 45 (1 December 1987)


Chipeta, J.: The appellant in this appeal, Shiku s/o Salehe, was charged with and convicted of the offence of rape c/ss 130 and 131 of the Penal Code and was sentenced to five years imprisonment.  He now appeals against both the conviction and sentence. E
The prosecution's evidence was that during the evening of 8th June, 1986 the complainant, one Hadija d/o Malale (P.W.1) who is aged 28 years, was at a pombe shop at Bukene where she and other people were drinking.  Among those present at the pombe shop were the appellant and one Magunila. F
At about 11.00 p.m., P.W.1 left the pombe shop for her home.  It was a moon-lit night and she was all alone.
When she was about 100 metres from the pombe shop on her way home two men, whom she identified to be the appellant and one Magunila, approached her and felled her to the ground.  When she tried to raise an alarm, the appellant and his colleague G slapped her and threatened to kill her if she raised an alarm.  The appellant's colleague then firmly held her legs wide apart while the appellant lay on her chest and had sexual intercourse with her until he ejaculated.  Thereafter, the appellant in turn held her legs H wide apart as his colleague also had sexual intercourse with her until he too ejaculated.  All this time she was calling them by their names and asking them why they were doing such things to her.
The matter did not end there.  Having had sexual intercourse with her, they subjected her I to more physical violence:  they twisted

her neck so violently that she defecated on the spot several times and later became A unconscious.
Next morning she was picked up by a police officer who then took her to Bukene Hospital.  When she came sound she immediately named the appellant and the said Magunila as having been the people who raped her. B
That very day, she was examined by a senior rural medical aid (P.W.2) who observed that she had bruises and a swollen neck, and she had semen in her private parts which indicated that she had had sexual intercourse a few hours earlier. C
The appellant and his colleague were later arrested on the strength of the descriptions and names given by her.  The said Magunila, however, disappeared after being released on police bond.  The appellant was accordingly charged alone.
In his defence on oath, the appellant said that on 8th June, 1986, he was away in his D village and denied having gone to the pombe shop on the material day.  He conceded, however, that he and the complainant have known each other for a long time.
After a very careful examination of the evidence before him, the learned trial district magistrate was fully satisfied that P.W.I was a truthful witness, and after considering the E circumstances in which the incident occurred, he was equally satisfied that P.W.I correctly and positively identified the appellant and his colleague and so rejected the appellant's alibi as creating no reasonable doubt in his mind.  He accordingly convicted the appellant as charged. F
It is now trite law that before basing a conviction solely on evidence of visual identification, such evidence must remove all possibilities of mistaken identity and the court must be fully satisfied that the evidence is watertight.  (See R. v Eria Sebwato, [1960] E.A. 174).  That principle has been re-iterated by the Court of Appeal of G Tanzania, in the case of Waziri Amani v Republic, [1980] TLR 250.  In that case the Court of Appeal has advised as follows, at pages 251 - 252:
   Although no hard and fast rules can be laid down as to the manner a trial judge should H determine questions of identity, it seems clear to us that he could not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried.  We would, for example, expect, to I find in the record questions such as the following posed and

   resolved by him:  the time the witness had the accused under observation; the distance at A which he observed him; the conditions in which such observation occurred for instance, whether it was day or night-time whether there was good or poor light at the scene; and further whether the witness know or had seen the accused before or not. B
In the present case, the learned magistrate, and he is to be commended for it, carefully analysed and considered the evidence of identification.  He noted that the identifying witness (P.W.I) knew the appellant and his colleague before the incident; that the C appellant himself admitted this fact; that the witness had been with the appellant at the pombe shop shortly before the incident and that it was a moon-lit night.  Further, he noted that she saw the rapists very close to her as they each lay on her chest in the act of the sexual intercourse; that she saw them for a long time while they took turns in raping D her; and that she immediately gave a description of the attire of the appellant and also gave their names.
It was after that careful analysis and consideration of the evidence of identification and all the surrounding circumstances of the incident that the learned trial magistrate was E satisfied that the evidence of identification was free from any possibility of error.
On my own re-assessment of the evidence on record there can be no doubt that P.W.I was a very truthful witness.  Her graphical description of the ugly incident could only be made by a person who was not only present but actually suffered the agony. F
From all the surrounding circumstances, the amount of light then at the scene, the distance at which she saw the culprits, the length of time she had them under observation coupled with the fact that she knew the culprits before the incident, I respectfully agree with the learned magistrate that evidence of identification in this case met the required test. G
It is also trite law that in sexual offenses in which the victim is an adult, a judge should warn himself (and the assessors if any) of the danger of acting on the uncorroborated testimony of the complainant, but having done so he may convict in the absence of H corroboration if he is satisfied that her evidence is truthful.  If no such warning is given, then the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice.  (See Ghila v R. [1967] E.A. 722).
That principle was recently reiterated by the Court of Appeal of Tanzania in the case of I Moses Kasisi & Charles Deo v Republic,

C.A.T. Criminal Appeal No. 105 of 1987 (unreported).  In that case the Court stated: A
   We agree that it is the rule that in any sexual offence, if the person against whom the offence is alleged to have been committed be an adult, the court should warn itself that it is not safe to B convict on the uncorroborated evidence of the complainant but that if it is satisfied of the truth of the complainant's evidence it may, after paying attention to the warning, nevertheless convict.  We understand that the wisdom underlying this rule came from the 17th century C English jurist Sir Matl Hale, who wrote:  "rape is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused."
Having reiterated the rule, the Court stated that it may now be desirable to relook into D the whole question of corroboration as it relates to sexual offenses.  If I may humbly add a voice to that of the Court of Appeal, the rule requiring corroboration in sexual offenses unduly protects rapists, and it is an indication of a veiled suspicion by the courts, which is E hard to justify, that women, generally well known for modesty and self-respect are apt to make false accusations in sexual matters.  Would the requirement of truthfulness of an adult woman in such cases, as is the case in other cases, not suffice? F
So much for the digression.  In the present case, the learned trial magistrate was aware of the rule requiring corroboration in such cases and cited the relevant authorities and, finding no corroboration in this case, duly warned himself of the danger of basing a conviction on the uncorroborated evidence of the complainant.  After subjecting the G evidence to careful scrutiny as stated earlier, he was satisfied that it was safe to convict the appellant on the uncorroborated evidence of P.W.1.
On my own view of the evidence on record, I do not think that the warning the magistrate gave himself was merely for the purpose of abiding by the rule.  I think he H took serious heed f the warning.  I, therefore, respectfully agree with Mr Tendwa, learned senior state attorney who appeared for the Republic in this appeal, that the conviction of the appellant was well founded.,
I now turn to the sentence.  In view of ugly facts in this case I am not persuaded that the I sentence of five years imprisonment was a day too long.  The appellant and his colleague behaved like

brutes.  They not only raped the complainant viciously but also nearly killed her.  The A sentence, therefore, will also remain undisturbed, and as the same requires confirmation by this court, it is hereby confirmed.
In the result, this appeal is hereby dismissed in its entirety.
B Appeal dismissed.
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