20110705 TZCA Mbeya

I IN THE COURT OF APPEAL Of TANZANI~

ATMBEYA i (CORAM: MBAROUK, J.A. MASSATI, ].A., And OR!YO, J.A. ·cRIMINALAPPEAL N0._2os oF 2009- \ I AYOUB- MOSES ·············••1t••········•·· ............... n •••••• APPELLANT VERSUS ! I THE REPUBLIC ············•·11•a••···············••_••·····~····~~•-1!~-S~PQNtl.E_NI~--~--'=--------~·· (Appeal from. the decision of the High Cou~ of Tanzania at Mbeya {Msuya, l.l dated 19~h day of June,2009 in Criminal Appeal No~ 55 of 2008 -----------·--

JUDGMENT OF THE COURT 30 June, & 6 July, 2011 ORIYO, J.A.: On the 25th August 2008, the District Court of M~arali at Rujewa convicted the appellant, Ayoub Moses, qf the offence of: Rape of a child of two (2) years of age contrary to sections 130(2) (e)\ and 131 of the Penal Code, Cap 16, R.E.

2002. He was sentenced to life\ imprisonment. I - Being aggrieved, he unsuccessfully appealed to the High Court of I 'I Tanzania, Mbeya, hence this second appeal. The appellant's memorandum of appeal has six (6) grounds of appeal jhich can safely be reduced into two (2) grounds of appeal that; 1 1. The circumstantial, prosecution evidence I j was insufficient to prove the charge of rape beyond all reasonable doubt.

2. The defence case was not considered Essentially the case for the prosecution was that the victim, Faustina Emanuel and her twin brother, Faustino Emanuel, both aged two (2) years were in the care of Nice James (PWl), a girl of 11 years on 22nd February, 2007 at 16 hrs watching a video show at Igurusi village within Mbarali District, Mbeya Region. In the meanwhile, the appellant, who is a relative of PWl and the twins came over and took away the twins . allegedly to buy them some biscuits. Not long thereafterthe appellant returned both twins. However, he left Faustino with PWt while he carried the victim, Faustina, away with him again. Later, when the appellant returned Faustina to PW1, she was crying and bleeding: from her private parts. This information was relayed to the twin's grandmother, PW2, Mwanne Ibrahim, by PWl. PW2 examined the victim and confirmed that she was bleeding from the vagina. PW2 reported the matter to the Police who issued her with a PF3 and she took the victim to a Doctor. The report of the Medical Officer of Chimala Mission Hospital who examined Faustina confirmed that the victim's 2 • genitalia had suffered grievous harm caused by a blunt object. The Medical Officer's remarks were: "Seen the child female. Examination done. - Genital - vaginal Third degree· tear and Bruises, severe. pain, perineum, of female clotted. Grievous Harm." (signed) t \ The

appellant was arrested and subsequently charged in court. At 1 the trial the appellant admitted to be a relative of the victim, PW1 and ' ' i PW2. He also admitted that on the material date he took the victim Faustina from PWl's custody. Otherwise he denied to have raped the victim. The first appellate court was satisfied that the victirtn was raped by I , I I the appellant who was the _last person to be with the vi~im before she was found crying, bleeding from the vagina and walking with difficulty. At the hearing. of the appeal, Mr. Tumaini Kweka, learned State Attorney appeared for the respondent/Republic while the appellant was I unrepresented and appeared in person. 3 Mr. Kweka, learned State Attorney who from the outset did rt.at. ◄ , • support the appeal conceded that in taking the evidence of PWl, a child ; of tender y~ars, the trial court did not strictly comply with the provisions of section 127(2) of the Penal ·Code. He urged us to discount the PW! on the strength of the various decisions of this Court, for instance, see the Court's decision in the case of Godi Kasenegala v,. R., Criminal Appeal No. 10 of 2008 (unreported). Submitting on the grounds of appeal: generally, the learned State ~ttorney justified the appellant's conviction on the evidence of PW1, PW2, PW3, PW4, PWS and Exhibits 'Pl' and 'P2'. Having discounted the evidence of PWl, Nice James above, we are

now left with the testimonies of PW2, PW3, PW4, PWS and Exhibits 'P1' and 'P2' and the appeal fails or succeeds on the basis of these testimonies. The issue before us for determination as it was in the lower courts rs: "Whether, Faustina was raped". If the answer is in the affirmative, the next question is: . "Who raped Faustina?" Both the lower courts were satisfied on the evidence on record that it was true that Faustina was raped. Starting with the evidence of 4 I • PWi, the grandmother of Faustina, she testified that PW1 took the victim to her when the latter was crying and on examining her she found blood was coming. from the victim's vagina. And in answrr to a question from the appellant in cross examination, PW2 categorically stated:- "I don't know what injured the child ?ut • 1 you was (sic) with the child". Further evidence was given by DWl, the appellant who admitted at the 1 trial that he was with Faustina at the material time. Exhibit 'P2', the Medical Examination Report of the appellant tendered at the trial by I PW4, Dr. Albert Sichone of Igurusi Dispensary, showed that upon examining the appellant he found him with bruises in. his fore glands I and dried blood on his penis. The medical report by Qr. Sichone was I made following the appellant's complaints to PW3, F 3853 DC Cosam, I the investigator of the case, that the appellant had pajns in his upper -- left

leg. But upon visual examination, PW3, noted there were no injuries i I on the leg but on his penis. PW3 stated:'... "I saw his penis had some injuries as if I he was struggling to enter his penis into 1 something". 5 PW3 also testified that he had an occasion to see Faustina in the hosprtal ~ and he noted that she was seriously injured in her private parts. It was his observation that the injuries seen on the . appellant1s penis were . similar to those inflicted on Faustina in her vagina. · The opinion of PW3 ·was--corroiJDTated~and confirmecrlsy tfiat of PWS, Francis Nyabusanya, . then, an Assistant Medic~I Officer at Chimala Hospital, Rujewa. He examined Faustina and wrote a Medical Report, PF3, which was tendered as exhibit 'P2' and confirmed that Faustina was raped. The totality of the incriminating testimonies of PW2, PW3, PW4, PWS, and as corroborated by that of DWl together w,ith Exhibits 'Pl' and 'P2' considered together ~tute quite a strong circumstantial evidence that lead to nothing else but the guilt of the appellan_!. We therefore ~ agree with Mr. Kweka that on the evidence, an accusing figure points to no one else but the appellant as the person who raped Faustina. In the event, we find that the conviction of the appellant is sound and the appeal thereon is dismissed. As shown above, the app~llant was sentenced to life imprisonment. ·, However, we are of the view

that section 131 of the Penal Code was not fully complied with. Section 131 provides: 6 "131. -(1) Any perso I' who commits rape is, except in the cakes provided for in the renumbered subsLion (2), liable to be punished with ijprisonment for life, and in anycase for imprisonment of not less than 30 .years Iwith corporal, punishment,.· and wath fine, and shall in addition be Jdered to pay compensation of an amount determined by the I ourt, to the· person in respect if whom the offence was committed for the -an1uir1es •. - causei1r L ..ll;t:o suon person , (2) N/A (3) Subject to the prec\ ding provisions of this section whoever commits an offence of rape to a gi~ under the age of ten years shall on conviction be sentenced to life imprisonment." [Emphasis provided] 7

I I I In view of the mandatory nature of the law, it is obvious tp~ , ,~· omission to impose corporal punishment and an order of compensation was an error. Unfortunately the first appellate court also erred in upholding it In the exercise of the Court's revisional powers under substitute the senten~e. In addition to life imprisonment, the appellant is sentenced to corporal punishment of 12 strokes of the cane and to pay compensation of shs 200,000/= to the victim. The corporal punishment to be executed in two installments of 6 strokes each. For the reasons stated above, save for the substituted sentence, the appeal is therefore dismissed in its entirety. DATED at MBEYA 5th day of July, 2011. M.S. MBAROUK

JUSTICE OF APPEAL S.A. MASSATI

JUSTICE OF APPEAL K.K .. ORIYO JUSTICE Of APPEAL ~-- I certify that this is:a true copy of the original. P.\N!BAMPIKYA . SENIOR DEPUTY" REGISTRAR COURli OF. APPEAL 8