NA TZHC Dodoma 1

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And MBAROUK, J.A.) CRIMINAL APPEAL NO. 24 OF 2007 MKUMBO HAMISI ••••••••••••••••••••••••••••••••.•••••••.•.•....•..•••.••••.. APPELLANT VERSUS THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Masanche, J.) dated the 4 th day of December, 2006 in Criminal Appeal No. 73 of 2006 JUDGMENT OF THE COURT 2 & 4 December, 2008 MBAROUK, J.A.: In Criminal Case No. 32 of 2006 in the District Court of Iramba at Kiomboi, the appellant Mkumbo Hamis was convicted of the offence of rape contrary to section 130 (1)(2)(e) and 131 (1) of the Penal Code as -------arilended,,-by--the, Sexual .Qff-ences{Spec;iakf.2.rovisioAs}=--Act-No.~fLOLl998.- ~ ~ - - --.··· He was sentenced to thirty years imprisonment and twelve strokes corporal punishment. Also he was ordered to pay 100,000/- compensation to PWl for the harassment she got. He was aggr:ievec:Lby _the conviction and 2 sentence and appealed at the High Court. Masanche, J. dismissed his appeal. Still not satisfied, he has filed this second appeal. The appellant has filed a lengthy eight grounds memorandum of appeal which can conveniently be reduced to seven grounds: 1. That, the trial magistrate and the 1st appellate court grossly erred in law and facts after working upon the evidence of PWl which _does not suffice the court to rule out that PWl was doing sexual intercourse with the appellant. 2. That, the trial magistrate and the 1st appellate court erred in allowing the prosecution not to summon a ten cell leader {Issa Kikasi) instead they called PW2. . 3. That, the trial magistrate and fne 1st appellate ···-· · ·• · •·• ·--·· ·~----·= .. ·· court grossly erred in law and facts after imposing severe sentence to the appellant while the conviction felL _uoder the lesser offence of abduction and not rape. 3 4. That, the trial court and 1st appellate court grossly erred in law and facts for convicting the appellant without complying with the mandatory requirement provided under section 312 (2) of CPA, Cap.20 (R.E. 2002). 5. That, PF3 has not shown the evidence that penis penetrated into the vagina. Also a doctor was not called to testify at the trial court contrary to section 240 (3) of the CP.A. 6. That, the trial court and 1st appellate court erred in law and facts after admitting and working upon the evidence of PWl and PW2 without considering the failure to produce the sketch map to show where did the two persons met and had sexual intercourse. 7. .. That, the trial court and 1st appellate court seriously erred in law and facts without considering the appellant's defence at the trial. 4 We have opted to give a brief account of the case which was before the trial court before we discuss the points raised in the memorandum of appeal. On 14.3.2000 at 1.00 p.m., PWl Sarah d/o Daniel was tending cattle with PW2 Petro Amosi. PWl went to the river to pick firewood. She saw the . -:.. appellant walking towards her. PWl left the river and went to her cattle. The appellant followed PWl and told her 'leo ni leo'. PWl asked the appellant why he was making that remark. The appellant replied that he has been seducing her but PWl was refusing. The appellant then kicked PWl's legs using his feet and PWl fell down. He lied on top of PWl and tore her underpants, unzipped his trousers and took his penis and inserted into PWl's vagina and the penis penetrated. PWl shouted and PW2 Petro Amosi who was tending his cattle 20 paces from PWl heard the cries and saw what the appellant did to PWl. At the scene, PW2 found the appellant lying in between PWl's thighs. PW2 flogged the appellant on his back who then woke~t1pand PWl ran away. PWl and PW2 drove their cattle home and went to report to the ten cell leader and later to the police post, where she was issued with PF3 and sent to the hospital. The PF3 tendered and admitted as . Exhibit Pl. showed. that PWl sustained bruises and mild 5 swelling on her private parts. Thereafter, the appellant was arrested and accordingly charged. In this appeal, just like in the courts below, the appellant was unrepresented. The respondent Republic was represented by Ms. Neema Mwanda, learned State Attorney. At the hearing the appellant had nothing to submit apart from what he stated in his memorandum of appeal understandably so because he was a lay person. On her part, Ms. Mwanda, from the out set supported the conviction and sentence imposaj upon by the trial court to the appellant. The learned State Attorney vehemently urged us to consider all the grounds as baseless with the exception of the 5th ground of appeal concerning the non compliance with section 240 (3) of the Criminal Procedure Act (CPA). 6 In her response to the first ground of appeal, Ms. Mwanda submitted that the record clearly shows that the appellant did the act of rape at day time. She said that, the appellant was clearly identified by PWl and PW2. Both witnesses (PWl and PW2) testified to the effect that they knew the appellant before, as they were living in the same village. Ms. Mwanda further submitted that the evidence of PWl and PW2 was water-tight to enable the offence·· against the appel Iant to have been proved beyond reasonable doubt. As per the record, Ms. Mwanda added that, PWl narrated the whole story when the appellant fol lowed her, kicked and fel I her down, lied on top of her and inserted his penis into her (PWl's) vagina. The learned State Attorney furthermore submitted that PWl was found to be a truthful witness by the trial court. PW2 corroborated the evidence of PWl, she said. After being satisfied, the trial court accordingly found the appellant guUty as charged Ms. Mwanda added. Hence, she urged us to find the 1st ground of appeal baseless and without merit. On our part, as urged by the learned State Attorney we find the_l st ground of appeal without merit. We have arrived to that conclusion after having a 7 considered opinion that, the act of rape happened during day time and there was no question of mistaken identity. Bearing in mind that, the two courts below have reached to the decision of convicting the appellant after the analysis of the facts, we find no j~stification _for interfering with the concurrent findings of the two lower courts. We find no merit in the appellants' complaint as found in his 1st ground of appeal. As to the 2nd ground of appeal, Ms. Mwanda agreed that, it was true that a ten cell leader (Issa Kikasi) was not called to testify at the trial court. However, we think, the learned State Attorney correctly submitted that not calling a ten cell leader to testify did not affect the prosecution case. This is because he was not an eye witness at the scene of the crime. She said the evidence of a ten cell leader would have had no value compared to that of PW1 and PW2 who actually witnessed the act of rape. Hence the prosecution side cannot be faulted she said. On our part, we totally agree with the learoa:LState Attorney_thatthe prosecution side at the trial court cannot be faulted for not cal Iing the ten eel I 8 leader (Issa Kikasi). This is because, the evidence of PWl and PW2 was sufficient to prove the offence against the appellant as charged. Hence we find the 2nd ground of appeal with no merit. Without labouring ourselves to go to a thorough analysis of each ground, like ground number three, four, six and seven, we find them with no merit as urged by the learned State Attorney. Th is is because we have found them to have been fully complied with by the trial court. For example ground three, after the offence of rape has been proved we think, the sentence imposed was legal. As for ground four we are of the opinion that section 312(2) of the CPA has been fully complied with as shown in the record. As for ground six, we are of the opinion that there was no need for the production of a sketch map of the scene of the crime. Concerning ground seven, the records are clear that the trial Principal District Magistrate fully considered the appellant's ElefeAEE in his-judgment. Hence generally, we have find grounds No. 3, 4, 5, and 7 with no merit after having been fully complied with by the trial court.