aidano kamtunduka vs republic 2008 tzhc 276 29 july 2008

IN THE HIGH COURT OF TANZANIA

AT MTW A R A

APPELLATE JURISDICTION CRIMINAL APPEAL NO 42 OF 2007 Original Masasi D/Court Cr. Case No. 192/2005 Before: M.O. Lilibe, PDM AIDANO K A M T U N D U K A ...................................................APPELLANT

VERSUS THE R E P U B L I C ....................................................................RESPONDENT 14/7/2008 & 29/7/2008 R w e y e m a mu Judgment In Mtvvara District Court (DC) Cr. Case 63/2006. the appellant A k k m o K a m t u n c l u k a was arraigned on a charge with two counts; rape c/s 130 (12)(e) & 131 (1) as amended by the Sexual Offences Special Provisions Act 4/98 (SOSPA) in the llrst count, and causing grievous harm c/s 225 both o f the Penal code. The particulars had indicated that on 23/11/2005, the appellant raped and caused grievous harm to Thccla d/o Mamis ( P w 1). I le was convicted and given concurrent prison sentences o f 30 years and 12 months respectively. Dissatisfied he appealed that decision which 1 hasten to state, was not supported by the republic/respondent on appeal. Let me first revisit the evidence at trial upon which the impugned decision was based. The facts were brief composed o f I ^ the evidence o f the complainant Pw , her son Pw , the Village Executive Officer (V EO ) P w 3, a m em ber o f the militia who arrested the appellant P w 4, and a doctor who examined the complainant - P w \ Pw d e p o s e d that at a bout 12.00 hrs, ( mi d day) o f 23 1 1/2005 (mid day), she at h o m e s l e e p i n g w h e n the a p p e l l a n t w e n t in and carnally k n e w her w i t h o u t her c o n s e n t . Me ej acul at ed three t i mes and in

the cour s e o f the rape, he cut her wi t h a knife on the thi gh to pr e ve nt her from s h o u t i n g . Me d a s h e d out t her eaf t er a nd she w a s then able to raise a l a r m, n e i g h b o u rs c a m e and she told (hem w h a t had happened. T h e y assi st ed her 'a') arrest the a c c u s e d and took him to the police station. S h e went to hospi tal and w a s gi ven a PK 3 admi t t e d as P Exhibi t 1. In r e s p o n s e to a q u e s t i o n by the appel l ant in cross e x a mi n a t i o n , she d i s c l o s e d that her h u s b a n d wa s a w a y at the time. ■j T h e rest ol t he p r o s e c u t i o n e v i d e n c e w e n t as follows; P w “ the son, testified that on 23 / 12/2005 he r e t u r n e d h o m e and his m o t h e r told him that she had b e e n raped by the appel l ant . He ad v i s e d her that they shoul d r e p o r t to V E O w h i c h t h e y did. T h e V E O P w 3 d e n o s c d that on :<M)r (it i.c not c l e a r at w h a t t i me sine*.'!lie record says “at a ro u n d ” then is silent) P w 1 reported to her that “she had been raped by the now a cc u sed ”. She ordered a militia to arrest the appellant and take him to the Police. The appellant was arrested by P w 4 a m ember o f the militia who testified that on 23/11/2005 around 15.30 hrs he was ordered to arrest the appellant “who was suspected fo r rape" he arrested him and handed him to

the police. The complainant was ultimately taken to the police then hospital. A doctor testified as Pw3 and tendered a PF 3 which where he had opined that “victim was interrupted bv a blunt object around her private parts like male organ ”!! Me went on to testify that he saw bruises and wounds on the P w 1. In defense the appellant denied any involvement in the matter. I lis evidence was brief “/ deny the charge as / did not commit the offence charged. 1 only w onder how / was charged in this court. / know nothing about the c a se " . He admitted under cross examination that he had no grudges with the complainant but stressed that "the case is ju s t cooked" 1le repeated his protestation on appeal and submitted that P w 1 lied; that no exhibit was found on him; that there was no evidence that he committed the offence - no neighbors came to testily ihat ihe offencc took place, -save complainant's own son: that he was not identified at the scene o f crime; that P w 1 did not know him until when she testified in court and lhat the PF 3 did not The appeal was conceded by Ms. Shio state attorney for the republic/respondent. In support o f her position, she submitted that; P w !,s sto n that she was raped three times (appellant ejaculated three times) and at day time but she raised no alarm is not plausible; that P w 1 testified that she reported the mishap to neighbours and they

arrested the appellant yet Pw4 testified that he was the one w ho arrested appellant, and none o f those neighbours were called to testily. The question tor decision in this appeal is whether there was sufficient ev idence to found conviction o f the appellant. The DC after posing the question for decision as, “ whether the evidence against the accused was watertight" , the court went on to examine principles governing admission o f evidence o f a child o f tender years- for reasons 1 do not quite understand, (since Pw was an adult aged 53, and according to the record her son Pw~ was an adult, it states "adult, sworn and states"). The DC magistrate concluded. "I am satisfied that Pw ! who is aged 53 is carries no weight and its rejected The DC gave no reasons why it found P w 1 credible and the defense not worth o f belief save for its observation that the offence look place during daylight implying that there was no issue o f poor visibility. 1 am aware o f the rule o f practice that the trial court is best placed to assess credibility o f witnesses because 'it sees and hears the witness testily’. The appellate court as 1 sit can interfere if it finds that the trial court failed to take material point or circumstances into account’ or as put by the late Lugakingira J., as he then was. in Pin Joseph v. R. ( 1984) 161 "the evidence reveals fundam ental factors of a vitiating

nature or which the trial court did not address itself properly" . I believe in this case there arc grounds for interference. First as I noted above, the DC did not discuss its reasons for finding P w 1 credible. 1 believe the dutv to assess credibility is a judicial one, as such, the trial court is duty bound to give reasons for its decision on credibility. Granted the DC' mentioned that the offence took place in broad day light as such the question o f mistaken identity did not arise. But conditions o f identification is not the only factor in assessing credibility, for one the court has to consider other circumstances in the case before believing and relying sorely on positive evidence o f a witness like P w 1, for example, it has to consider whether that witness is entitled to belief. I have in mind an observation m ade in a case referred to by the C A T in Daniel Nguru and Four Others v. The Republic, Cr. A ppeal 178/2004, (Mwanza registry-unreported), that observation was made in Commonwealth V. Webster (1950) 50 Mass 255, where Shaw, C.J. said:- ctThe advantages o f positive evidence is that it is the direct testimony o f a witness to the fa c t to he proved, who i f he speaks the truth, saw it done. and the only question is whether he is entitled to belief. The disadvantage /a that the witness may he false and corrupt, and that the case may not afford the means o f

detecting his falsehood' Hm phas is mine) In this case, the appellant claimed the complainant. The court has no mystical way o f deciding whether the witness speaks the truth saves by referring to other circumstances in the case. If there are circumstances which make the witness’s story improbable, the court ought to conclude that such positive evidence o f a w itness on an issue may be a lie. There are circumstances in this case w hich w o u ld make a reasonable person wonder whether P w 1 told the truth and nothing but the truth. First, I agree with Ms. Ship’s submissions that “P v / ’s story that she was raped three times, during day time but she raised no alarm is not plausible; (In fact her evidence that she could not shout for help because the appellant cut her on the thigh is not too credible, in my opinion the cutting would have made her shout- achieving opposite effect). Second again as rightly submitted by Ms. Shio, “ Pw 1testified that she reported the mishap to neighbours and they arrested the appellant yet Pw4 testified that he was the one who arrested appellant, and none o f those neighbours were called to testify” . It is indeed curious that no neighbour testified and the prosecution was silent as regards the complainant’s husband-who was said to have been away at the time. Surely on his return, he should have come in the picture. Further, the feet that no police

investigator testified makes the whole prosecution story disjointed, it is not clear for example how and where the appellant was arrested, how the police finally became seized o f the matter and why they decided to prosecute. The investigator’s testimony would have provided vital links in the prosecution’s case which are missing. I have noted a discrepancy on dates o f the events as told by the witnesses, Pw1 and Pw2, and Pw3, but the same may be due to illiteracy o f the witnesses. The C A T cautions that “/« case o f illiterate witnesses, it is not fa ir or desirable to tie them down too closely to estimates o f time... ’’.Shihobe Seni & Ano V.R (1 9 9 2 ) T.L.R. 3 3 0 . I would therefore make no issue o f those discreoancies. Still, based Jl ’ on matters pointed out above, I find that the DC wrongly found the complainant credible. As hers was the only evidence connecting the appellant with the offence, I find the case against the appellant not to have been proved on the required standard, quash his conviction and sentence. Before concluding, I find m yself inclined to make the following observation: I have noted from a num ber o f criminal appeals which I have handled involving ordinary and statutory rape cases, that the same are poorly and casually investigated, if not, the weakness lie with their prosecution. The evidence in these cases is usually scanty, mainly composed o

f almost only the testimony o f the victim. A bsence o f investigators testimony, now characterize most o f these cases. It appears to me that there is a wrong assumption that, it suffices for the victim to testify that she was raped by the appellant. That is a wrong stance. It has to be rem em bered that the amendments brought in by sospa regarding receipt o f the v ic tim ’s evidence w ithout need for corroboration in sexual offence cases, did not do away with the general rule o f law and practice that conviction can be found on the evidence o f a single w itness but only if the court is fully satisfied that the witness is telling the truth. In order for sospa to achieve its intended objectives through court action; investigators have to obtain information through witnesses w hich w ould help paint a clear picture to the court regarding; com m ission o f the offence, surrounding circum stances before and after the event; and prosecutors have to carefully lead and solicit relevant inform ation from such witnesses as is usually done in other serious cases involving serious penal consequences, and investigators have to testify to ensure links in the prosecution are clearly set out. That said, I order the appellant’s immediate release unless otherwise lawfully held.