amani so fungabikasi vs republic 2008 tzhc 104 10 september 2008

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL N0.70 OF 2007 ORIGINAL CRIMINAL CASE NO. 298 OF 2006 OF THE DISTRICT COURT OF KIGOMA DISTRICT AT KIGOMA BEFORE: - R.M. MHINA. Esq., RESIDENT MAGISTRATE. AMANI S/O FUNGABIKASI........................................... APPELLANT (Original Accused) Versus. THE REPUBLIC............................................................RESPONDENT (Original Prosecutor) JUDGMENT 13/ 08/2008 & 10/ 09/2008 KADURI. I. The appellant Amaru Fungabikasi was residing at Lugufu Refugee Camp within the District and Municipal of Kigoma. He was convicted with the offence of rape contrary to section 130 and 131 of the Penal Code Cap.16 R.E. 2002. The victim of the alleged rape is PW.l Riziki Piere aged 9 years old and a standard one pupil at Okapi Primary School within the Refugee camp of Lugufu. PW.l stated on oath that on 6/10/2006 she was at home. There was a small child with her. It was a Friday. The appellant, a neighbour found her at home, dragged her to his own house, took off her clothes and raped her. She cried. This was around 1.00 p.m. One Dehaba s/o Hussein arrived at the scene in the company of Lubunga Tondele, and another person she did not know. They opened the door and told the appellant that they would report the incident to PW.l’s mother. Her mother knew of the events the following day, whereupon she (PW.l) and the appellant were taken to the Police Post at Lugufu Camp. PW.l was taken to hospital for medical examination. The PF.3 tendered as Exhibit PI showed that PW.l suffered vagina lacerations, bruises and there were blood clots in her vagina but no semen was seen. PW.3 a Doctor at Lugufu Refugee Camp confirmed examining PW.l who was taken to him by her mother on the 8th October, 2006 which was a Sunday. PW.2, Anna Asako, is the mother of PW.l. She testified on oath that the appellant is her neighbour. On Friday 6th October, 2006 she returned home from work only to find Riziki, PW.l sleeping which was unusual. She asked PW.l what was wrong but received no reply. She prepared dinner and water for both. The following morning she left PW.l some food and went back to work. On return from work she found PW.l still sleeping. She questioned her and this time PW.l told her that she had been raped by the appellant. Dehaba Tondele also told her the same story. She reported to the camp authorities. The appellant was apprehended at a kiosk. As it was late the Police Officer advised that PW.l be taken to hospital the following day which was a Sunday. In defence the appellant stated that on 7th October, 2006, Saturday he was arrested while coming from Church. He stated that PW.2 the mother by PW.l fabricated the case against him because she wanted to live him but he refused. He alleged that the medical report was bought because the Doctor was contradictory in his words when testifying. He called DW.2 Bilombele Bitomwa whom he alleged to have been together praying at FPCT Church on the material day. When DW.2 was called to testify he denied knowing the appellant. However, he admitted having seen him for the last time on Saturday. He had been invited to attend mass by world vision. The mass lasted from 14:00 hrs to 17:00 but he left at about 16:00 hrs to return to his work place at Lugufu mtoni. From the evidence for the prosecution and defence it is clear that the rape took place on 6th October, 2006 which was a Friday. The mother of PW.l was informed of the rape on 7th October, 2006 on Saturday. The appellant was arrested on 7th October, 2007. The medical examination was done on 8th October, 2006. The main issue the appellant has raised is on the credibility of the Prosecution witnesses. I am aware that in a case of rape the true evidence of the offence is that of the victim. See Seleman Makumba V.R. Criminal App. No. 94/1999, Mbeya Registry, unreported. PW.l’s behavior on the 6th October, 2006 left her mother PW.2 wondering. PW.2 asked PW.l why she was sleeping at the time which was unusual. She received no reply. The following day the same behavior porten was repeated. This time PW.l informed her mother that she had been raped and named non other than the appellant as the person who raped her. PW.l was aged 9 years. No vaire dire test was conducted before she was asked to give evidence. Her evidence is therefore considered as unsworn evidence which requires corroboration. See DERMAN HENJEWELE V.R. Cr. App. No.164/2005 C.A Mbeya Registry. I agree with the Respondent Republic that PWl’s evidence was corroborated and that the trial Magistrate did not errer in law in admitting and relying in it. The Doctors report corroborates the evidence of the victim, PW.l. The Doctor found bruises, lacerations, blood clot on PWl’s private parts and she had lost her virginity. The Doctors evidence is proof of sexual intercourse having taken place although it does not prove that there was rape. See Seleman Makumba V.R. V.R. Supra. The circumstances under which PW.2 found PW.l made her to suspect that something was not right. She could not get the answer to her suspicion until the following day when PW.l without mincing words informed her that she had been raped by the appellant. The evidence for the prosecution, taken as a whole leaves no reasonable doubt that PW.l was raped by the appellant. The hesitation to report may have been caused by the trauma she suffered from the act on her which is proved by her strange behavior and not because there was a sceme to implicate the appellant. PW.2 found PW.l sleeping on Friday, the day of the incident, and up to Saturday she had not resumed normal life. The alibi raised by the appellant has not been supported by Dw.2 Bilombele Bitomwa who saw the appellant for the last time on a Sunday while the incident took place on a Friday even though he did not name the dates. I am satisfied that the rape was proved beyond all reasonable doubt, that it was the appellant who raped PW.l who was below the age of consent. I uphold the conviction. Section 130 (2) (e) and section 131 (1) of the Penal Code are as amended by section 4 and 5 of the sexual offences special Provisions Act No.4 of 1998 and provides that: - S.131 (1): “Any person who commits rape is, excevt in the cases vrovided for in the renumbered subsection (2) (5) liable to be punished with imprisonment for life, and in any other case for imprisonment o f not less than thirty years with corvoral vunishment. and with a fine. and shall in addition be ordered to vay comvensation o f an amount determined by the court. to the person in respect of whom the offence was committed for the injuries caused to such person.” Emphasis added. The offence of which the appellant stands convicted, falls under section 130 (2) (e) because the victim is under 18 years of age. These are offences excepted from the sentence of life imprisonment. I hereby set aside the sentence of life imprisonment and substitute it with a sentence of 30 years imprisonment with 12 strokes of the cane. L.K.N. KADURI JUDGE 10/9/2008 Judgment delivered this 10/09/2008 in the presence of Mr. Mwitase, State Attorney and the appellant. T.K.N. KADURI TUDGE 10/09/2008