SHIKU SALEHE v REPUBLIC 1987 TLR 193 (HC)

SHIKU SALEHE v REPUBLIC 1987 TLR 193 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Chipeta J

December, 1987 F

Flynote

Criminal Law - Rape - Conviction based solely on visual identification -Uncorroborated

testimony - Whether can ground conviction. G

Evidence - Rape - Conviction based on uncorroborated testimony of the victim of rape -

Whether conviction may stand.

-Headnote

The appellant was charged with and convicted of the offence of rape contrary to H sections 130

and 131 of the Penal Code. The conviction was based solely on visual identification and

uncorroborated testimony of the raped victim. The issue on appeal was whether the conviction

was proper.

Held: (i) Before basing a conviction solely on evidence of visual identification, such I evidence

must remove all possibilities of

1987 TLR p194

CHIPETA J

mistaken identity and the court must be satisfied that the conviction is watertight; since A the

trial Magistrate considered these factors the conviction was proper;

(ii) in sexual offences, the court should warn itself of the dangers of acting on

uncorroborated testimony of the complainant and having done so the court may convict B if it

is satisfied that the victim's evidence is true.

Case Information

Appeal dismissed.

Cases referred to. C

1. R v Eria Sebwato [1960] EA 174

2. Waziri Amani v R [1980] TLR 250

3. Ghila v R [1967] EA 722

4. Moses Kasis & Charles Deo v R: Crim. App. No.105 of 1987 D (unreported).

[zJDz]Judgment

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

1987 TLR p195

CHIPETA J

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

1987 TLR p196

CHIPETA J

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,

1987 TLR p197

CHIPETA J

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

1987 TLR p198

CHIPETA J

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.

1986

Editorial Board

Chairman

The Hon. Mr. Justice F.L. NYALALI,

Chief Justice, Court of Appeal Tanzania

Chief Editor

Prof. L.P. SHAIDI, Faculty of Law

University of Dar es Salaam

Editors

The Hon. Mr. Justice A. RAMADHANI,

Chief Justice, Zanzibar

The Hon. Mr. Justice K.S.K. LUGAKINGIRA

High Court of Tanzania

Mr. M.A. LAKHA Advocate, High Court of Tanzania

Mr. E.L.K. Mwipopo, Director of Public Prosecutions

Attorney General's Chambers

Mr. R.J. REYEMAMU, Corporation Counsel

Tanzania Legal Corporation

Mr. A.M. MISKIRY, State Attorney Zanzibar

Assistant Chief Editor

Mr. N.N. NDITI, Lecturer, Faculty of Law

University of Dar es Salaam

SCOPE OF THE SERIES

These Reports cover cases decided in the Court of Appeal and the High Courts of Tanzania and

Zanzibar

CITATION

These Reports are cited thus [1986] TLR.

Judges of the Court of Appeal of Tanzania in 1986

1. The Hon. Mr. Justice F.L. Nyalali Chief Justice

2. The Hon. Mr. Justice A. Mustafa Justice of Appeal

3. The Hon. Mr. Justice L.M. Makame Justice of Appeal

4. The Hon. Mr. Justice R.H. Kisanga Justice of Appeal

5. The Hon. Mr. Justice A.M.A. Omar Justice of Appeal

Judges of the High Court of Tanzania in 1986

1. The Hon. Mr. Justice N.Z. Mnzavas Principal Judge (JK)

2. The Hon. Mr. Justice B.A. Samatta Puisne Judge

3. The Hon. Mr. Justice L.M. Mfalila Puisne Judge

4. The Hon. Mr. Justice D.P. Mapigano Puisne Judge

5. The Hon. Mr. Justice K.S.K. Lugakingira Puisne Judge

6. The Hon. Mr. Justice E.W. Katiti Puisne Judge

7. The Hon. Mr. Justice B.D. Chipeta Puisne Judge

8. The Hon. Mr. Justice N.M. Mushi Puisne Judge

9. The Hon. Mr. Justice W. Maina Puisne Judge

10. The Hon. Mr. Justice J.A. Mroso Puisne Judge

11. The Hon. Mr. Justice L.J.R. Chua Puisne Judge

12. The Hon. Mr. Justice R.A. Mwaikasu Puisne Judge

13. The Hon. Mr. Justice F. Munyera Puisne Judge

14. The Hon. Mr. Justice R.J. Ruhumbika Puisne Judge

15. The Hon. Mr. Justice M. Mwakibete Puisne Judge

16. The Hon. Mr. Justice R.B. Maganga Puisne Judge

17. The Hon. Mr. Justice H.E.D. Sisya Puisne Judge

18. The Hon. Mr. Justice Y.S. Rubama Puisne Judge

19. The Hon. Mr. Justice C. Mtenga Puisne Judge

20. The Hon. Mr. Justice H.J. Mkatte Puisne Judge

21. The Hon. Mr. Justice A.G.G. Korosso Puisne Judge

22. The Hon. Mr. Justice A. Bahati Puisne Judge

23. The Hon. Mr. Justice H.A. Msumi Puisne Judge

24. The Hon. Mr. Justice J.L. Mwalusanya Puisne Judge

25. The Hon. Mr. Justice E.E. Kazimoto Puisne Judge

26. The Hon. Mr. Justice B.P. Moshi Puisne Judge

Judges of the High Court of Zanzibar in 1986

1. The Hon. Mr. Justice A.S.L. Ramadhani Chief Justice

Cases Reported

A