20101203 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA .f ......... .._ \':.\,~.,()

AT DODOMA j { DC CRIMINAL APPEAL NO. 23 OF 2010 (ORIGINATING FROM CRIMINAL CASE NO. 213 OF 1999 OF THE DISTRICT COURT OF SING/DA AT SING/DA) ANDREA NTINDA -----------------~----------- APPELLANT

VERSUS THE REPUBLIC--------------~-----~----------- RESPONDENT

JUDGMENT 25-10-2010 & 03-12-2010 S. S. MWANGESI J.: The appellant in this appeal was the original accused person at the District court of Singida where he stood arraigned with the offence of rape contrary to section 130 { l) (2) (e) and section 131 (a) of the Penal Code Cap 16 Volurne l of ·!he Laws Revised Edition read together with section 5 and 6 of the Sexual Offences Special Provisions Act No 4 of 1998. The particulars of the offence were that on the 18th day of August 1999 at about 2100 hours at lkungi village within the District and Region of Singida, the accused did have carnal knowledge of one Maria Emanuel a girl under the age of twelve years. As the charge got denied by the accused when it got read over to him, the prosecution did summon three witnesses to appear in court and establish the guilt of the accused. And after those witnesses had given their testimonies and the accused also given his defence evidence, the learned Resident Magistrate who presided over the case was satisfied beyond reasonable doubts that the accused had .committed the charged offence. As a result, he did ·sentence the appellant to serve the mandatory sentence of going to jail for life imprisonment. The decision and the sentence imposed by the trial court did aggrieve the appellant who has decided to challenge such finding by way of this appeal. In his memorandum of appeal the appellant has

essentially raised four grounds that is, firstly that the evidence of Pwl the complainant which was relied upon by the learned trial Magistrate to found conviction on him, was not corroborated by any other independent evidence. 2 The second ground of appeal is that while it was alleged by the prosecution that the offence got committed during night and in darkness, there was no evidence tendered by the prosecution to establish that the appellant was the one properly identified to have raped the victim if at all she was raped. The appellant has further complained in his third ground of appeal that the Police Officer who investigated his case was never summoned by the prosecution to testify in court. And lastly, it has been averred by the appellant that there was no PF3 that was tendered in court to establish that the victim had really been raped as she claimed in her testimony. During the hearing of the appeal in this court, the appellant who did appear in person to prosecute his appeal, did not have · anything substantial to add to what was already contained in his grounds of appeal, he has only requested the court to closely consider his grounds of appeal which he has raised. On the other hand, the respondent (Republic) was represented by Mr. Wambali Learned State Attorney who did decline to support the conviction that was entered upon the appellant by the trial court. 3 It has

been the assertion of the learned State Attorney in ,- . support to what has been averred by the appellant that there was no evidence from the prosecution that got tendered to establish that the appellant was identified as the one who raped the victim of the incident on the fateful night. This is from the fact that the victim did tell the court that she was raped during night and in darkness. Mr. Wambali has also been at one with the appellant that there was need to be tendered by the prosecution a PF3 to establish if at all the victim had really been raped. However in this case there was none and to that effect there has been no proof that the victim did really get raped_ on the fateful night. On those bases, Mr. Wambali . jf--tf~ - - learned StateI• has . requested this court to find merit in the appeal by the appellant and therefore it be pleased to allow it and set the appellant at liberty. From the foregoing submissions from both sides, the question for this court to resolve is as to whether there is any merit in this appeal by the appellant. Under the provisions of section 127 (7) of the Law of Evidence Act (Cap 6), the court can found conviction to an accused person basing on the sole evidence of the complainant if it is satisfied that such evidence has sufficiently established the commission of the offence. The said provision is couched thus: 4 "(7) Notwithstanding the

preceding provisions of this section, where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender years or of a victim of the sexual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years of as the case may be the victim of sexual offence on ifs own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satJsfied that the c.hild of fender years or the victim of the sexual offence is telling nothing but the truth." In the light of the wording in the above quoted provision of the law, the mere fact that the victim was the only witness who gave evidence for the prosecution to establish the commission of the offence by the accused/appellant is not a sound ground as the appellant has tried to put it in his appeal . The basic question thus before this court is as to whether the said evidence of the sole witness who testified for the prosecution, that is PWl in the matter at hand did satisfactorily establish the guilt 5 of the appellant and thereby justifying conviction. As pointed out by Mr. Wambali Learned State Attorney, the PW 1 who happened to be the victim of the incident at issue told the court that the offence was committed during night and in darkness. The

same never told the court as to how she managed to identify the appellant in such darkness. As there was no mention of any type of light being available to assist her in the alleged identification, the same means there was none. The only ground that was relied upon by the trial court to hold that it was the appellant and nobody else who did rape the victim (PW l ) according to the available records of the trial court, was from the fact that he was the only man who was present in the house where the victim alleged to have been raped on the material date and at that particular time. The subsequent· question from such . generalization is as to whether it was justifiable for the trial court to hold so. It is my considered opinion that it was not. This is from the fact that in the first place it was not ascertained if . the victim got raped in the said house. Secondly, the possibility for any other person entering into the house was not ruled out. And as if the foregoing was not enough, there was no • evidence to establish that the alleged victim of the rape was indeed 6 raped on the fateful date. This is from the fact that there was no report of a. Medical Doctor to establish so. As submitted by Mr. Wambali there was necessity for a PF3. The learned Resident Magistrate who handled this case did as well note such necessity however he has indicated in his records that it was a

mishap occasioned by the fact that the mother of the victim had no fare to foot her travel charges with the victim to the Regional Government Hospital for examination of the victim as advised at the Police Station. Even if that had been the case, there was no justification for the court to resolve such mishap in the disfavour and/or detriment of the appellant. The learned trial Magistrate did proceed to indicate in his records that the absence of the PF3 was not fatal because there was ample evidence from the prosecution to establish that the appellant did commit the charged offence. With due respect to the learned Resident Magistrate, I have failed to trace such ample evidence that did sufficiently establish that the appellant did rape the victim. As indicated earlier above, the evidence of the other two . witnesses who did testify in addition to the victim's testimony did fail to do so. PW2 Anastazia Damian who happened to be the mother of the victim did tell the court that she did examine the victim in the morning and that what she noticed was that the private parts of the victim was swollen. On her part PW3 one Tatu Ntandu did telL the 7 court that after the victim had gone to her house during night, she did examine her and noted that there was mild blood on her private · parts. In the .light of what wc:is said by those two witnesses it cannot be said that the commission of

rape was established. On the bases of the shortfalls which I have tried to highlight above, this court is in agreement with what has been submitted by the appellant in his grounds of appeal and seconded by the learned State Attorney that the evidence in the case at hand did not sufficiently establish the guilt of the appellant to the charged offence. As such, there was no justification for the trial court to hold the appellant culpable. Such finding of the trial court is hereby quashed and the,_. sentence of life imprisonment' imposed to the appellant is set aside. In lieu thereof, it is ordered that the appellant be set at liberty forthwith unless legally held for any other justifiable cause. It is so ordered. -- U♦--MWANGE~-

JUDGE 03-12-2010 8 ·Date: 14/02/2011 Coram: S.S. Mwangesi, Judge. Appellant: Present in person Respondent: Magoma (SA) C/C: R. Mahmoud Order: Judgment read in the presence of MS-Mag(?ma & Haonga and the respondent in person this 14th day of February, 2011.