19851203 TZCA Dar es Salaam

·.J...,) •. IN THE COURT OF APFEAL OF TANZANIA AT MWANZA CORA1'1_: MUSTAFA1 J .A., MAKAME, J .A. and KISANGA; __J_.A. CRIMINAL APFEAL NOQ68/1985 ) BEI'WEEN CHACHA MAHEMBA Q ., ,, .. 0 • • " 0 ;, APPELLANT AND THE REFUBLIC (i ••• • o " 0 ., · RESPONDENT (Apreal from Conviction of the High Court of Tanzania at Mwanza)(A.G,.G,.l(orosso,J ,.) date the 20th day of Mayr 1985, in Criminal Session~_Q_~se No~l66 of 1983 .. .JUDGNVIENT OF THE COURT MAKAME, J .A,: The. appellant CHACHA MAHEMBA was s.ent enced to death following his. conviction -for murder by the High Court sitting at Musoma; (Korosso:, J). Mr. Rugarabamu, learned advocate, appeared for him before us f while Mr O Swai, learned State Attorney, represented the respondent Republic. The evidrnce relied on was mainly that of P. W.1 WANKURU SANCHAWA,. the younger sister of the woman the appellant was found · to have murdered. According to F W l, she and the deceased, 0 0 ' / PAULINA STANSLAUS, were drinking liqour at the house of a neighbour, about ten minutes walk from the .house of their mother whom they were visitingz away from hom6 0 Both women were apparently married and living While dr~nking; they were joined by the appellant, their maternal cousin, at about 3 Pum 0 A~ter drinking with the ..I decE;as ed and the appellant, F. W l 1 eft the place slone, theO appellant having persuaded the deceased,: to go on drinking with him. P .w.1 got home and at about 8 p m., she got a report from 0 a woman called MKANU NYAMHANGA that Hthe. ii.ccus ed w::1s killing my sister in the bush 11 0 F 0 W.l rushed thither, ·in the company of another sister called ELIZABEI'H~ who died before the trial.,· . and the woman I\llkami. At the scene they found both the deceased and the appellant completely naked 0 They got so close to the appellant that they could have seized him but for fear that he might be armed., In the bright moonlight they S3.W the appellant and shouted at him mentioning his :name., The appellant picked up .._,,./ ,. .•.•. ~./2 ,,,'.; 2 - 1; his clothes anc ran away without utteri~g a word~ The three ·women foUhd the dedeased in a soi'ry condition, __ She hag defecated and was groaning; complaining of severe '.abdominal pain. Her to~n underpl:1:trts and torn dress were near het-,\ as were also her beads. She told them that as she and the appell~nt were walking home, I . after the appellant h~d suggested the ro~te they should take, the appellant struck her on the face and felled her to the ground where he hit her again. When she refused to obey his order to talce off I her underwear 7 he ripped it off and raped her, throttling her I in the process so as to stop her from. screa~tngo They lifted the deceased and helped her to walk homev which she did with conside- rable difficulty. The following day the:, deceased was feeling such severe pains in her private parts and the,, abdomen that she would not let any one touch her in those areas O • •I The dece'ls ed confided ,, -,) in P .w.1 that she believed she would die 0 ' On the third da,y,- whi·ch · would be 26_.2,,81, the deceased was taken 1 \0 Mugumu Hospital whel'e she died in the early hours of 2nd March ·1981 0 The pause of death was given as Abdominal Injuries:, she wa~ found to have a ruptured urinary bladder and chemical pe:r:-i toni tis ., 1 , In his testimony the appellant denied ,I the . allegations• He said he did see F. W.1 and the deceased in.' the evening of the material day.- They were walking past his:home and he greeted them. ,! He did not otherwise converse with them and he never had a. drink ·I . with them.· The fallowing day on his way to an auction he say them .. and Elizabeth at their home 0 _:; Both assessors were satisfied that the appellant was found i raping the deceased and that the appellant was guilty of Murder. I The learned trial judge was of the same vi:ew. He found F • w.1 · I "a remarkably impressive. and truthful. witn'ess ' ". 11 , and convicted the appellant.. He relied on the cir cums ta.noes preceding the alleged rape, and the evidence of t11e eye witness at the scene of rape, I and the Dying Declaration. He was satisfied that the appellan1t I was not too drunk to know that he was committing a rape and was also satisfied that, in the circmustances, the appellant must be deemed to have caused the deceased's death,'_with ,, malice afore;.-'· thought. Before us Mr. Rugarabamu vigorously challenged the lower court's decison, on two main grounds He submitted that the 0 ! identity of the rapist was not sufficiently: established. F.W.l ....... /3. ·- _. •I i I, ii,,. 'I 3 q •! i\ and her companious must have approachJd the rapist from the rear, and it was at night, and the deoeased 1 herself must ha.ve been too ti drunk to be able to recognize her :ravisher O Mkami was not called • ' l and no report of rape was made that e1ening 0 Secondly the Fost Mortem examination report does not link the· cause of death with the alleged rape and it also suggests thJt an illegal operation was performed on the deceased 0 On his' p~rt •I Mr. Swai did not appear to us to have any stand one waJ'l: oli1 the other; quite frankly; and eventually he decided to leave it to :the court; an approach .J I we do not find very helpful. We are happier when counsel comeg out clearly to support or decline to supi:'brt a decision, and :; ij tells us why. ·I f' ' ' We have closely re-evaluated the evidence ourgelves and care- - " Ii fully considered Mr. Rugarabamu's submissions. Having done so, .J we wish to say that we are quite conviJce~ about the identity of the deceased's rapist: It was the a'pp-~llant. P.W.l's testimony was cogent and worthy of beliJef ~· We are satisfied ,.! i\ that the deceased left the drinking place ~n the company of the appellant and that it was the.latter Jho was found performing ' ·-1 on :the screa112.:.ng deceased in the bright, mo'onlight. It was the '.) 11 second aspect of the case that caused us s'ome anxiety - whether 1 J i the proven rape can be linked up with the cauge of death as '\ found by the doctor who did the a•topsy ~ We wish to say that ; ~l - we find that section 275 (Now section 291) ' . of the Criminal Frocedure Code is sometimes resorted to too liberally, as it was in the '! present case. There are cases, such as :this one, where one wo-.ld J have expected the medical witness to be ,cal;led to testify• ' '1•1 • II :] ' In this case the Fast Mortem ~eport;,, wa',,s casually put in by r.w.2, a police constable who arrested the appellant, who had nothing ' " at all to do with the autopsy, and without 1ny expb.nation whatsoever. ,,- 1 I In accordance with Rule 34 of 'the Tanzania Court of Appeal :1 Rules we decided to take additional· evidence and accordingly , •.I called a medical doctor as a court witness. 11 We had Dr. FREDERIC I KIGADYE, Consultant Fhysician and Acting Medical Superintendent, ' Bugarido Consultant Hospital, to testify b efo're U<:i 3nd throw some 1 ll light on Exhibit P.l, the Fast Mortem Exainination report, and l ,: express his opinion on certain matters we, wanted cb.rified. Before , ·I that we requested him to read the evidence of P.W.l and look at Exhibit F.l" As ·it turned out, Dr 0 Kigady,e'~ clear evidence helped us a great deal and we wish to express our grateful thanks ,! to him. Il •••• /4 4 - According to Dr. Kigadye, the sort of sexual assault the deceased was subjected to can result in 'the abdot:iinal injuries found to be the caUse of death. The chemical peritonitis the deceased was found to have been suffering fro~ cart be the result of 1i.rine from a ruptured bladder. spilling into the peritonetun 0 Se2t.al intercoursewith an ';111~ually long penis can rupture the bladder if it reaches it after penetrating the vagina, especially if the bladder is full at the time. In that case the examining doctor would.find a tear or lacerations on the vagina 0 Because none was found in this case he reckons it is another alternative that was more likely- pressure on the lower part of the abdom.en during sexual intercourse when the bladder was full 1 in circumstances of struggle. Dr. Kigady e agreed with Mr. Rugarabamu that an unusually long penis j could have lodged its elf in the rectum, via the pouch of Douglas instead, depending on the thrust and direction of the peni-l-e intromission~ Dr. Kigadye also dismissed the suggestion that the deceased could have suffered the injury as a result of a load of dassava falling on the deceased's chest. We were positively impressed by the doctor'·s evidence and we accept his opinions on the various aspects he was asked about. We are of the view that the chemical peritonitis was a result of urine spilling into the peri_toneal. cavity from the ruptured bladder. We are also of the view that the rupture was occasioned by the forc.e on the lower abdomen during t.he rape the appellant subjected the deceased to, and that the abdominal injuries referred to in Exhibit F .1 were a result of this.. We take into account Dr._ Kigadye' s view that a woman wi.th a ruptured urinary 1 bladder would complain of severe pain in the lower. abdomen, to the ~~tent. t.hat she would be unable to walk or. would walk under great strain,_ and that death would not be immediate unless the rupture caused sudden and very great shoti.t. All this ties up with the evidence available in this appeal •. The next. issue i~ whether the off,en.ce of Murder was proved., The learned trial judge was satisfied that it was._ We are respectfully of the same view. The appellan~, a young man in his early twenties, was committing a serious ·•:.-il'l-e on an old lady over 5.,;,years of age, a violent and brutish rape,. with callous and crass disregard of the ~nsequences. In the course of this he injured the victim and ruptured her bladder. In the oircumstanoes the learned trial judge was justified in holdin·g 11 \J r ,i"'4·: .. , • ~ • ~ ·' I . '. 1 ,, , ,, ... , i ,, ) ,,I 1· ., 'j J .•. 5 .1 ..,., 11: ~- ' .·: I :r· tha,t the appellant must b€ d'eemed l[t_o~have had the ""· p ecessary . f th ma 1 1 ce a ore oug,i, • Jt T.J ] · -ll eque:n ··tl d" . Y 1sm1se ,, •:l - ~r · ,the api:,eal. I 'l\ f' ;1'I , 3::iA~~· ~'. a.PMWANZA . I . ."!'~::':,, l..~:>:_"''!'"·,-,;:: "f'h I! -- ·this 3rd day, ?f December, 1985. . I ' . , .,_/.•: ._, . r>\. ~.;- • ,V'- :: . ti·a '·' I· -,:II r, ;I I ' r . -~ t-· I ; ;. ' ' l >.l h..~ I . ' I ~). • ) j ~ ·~ \ ··11 Ii \' (1' \. ,_" 1,' A. MUSTAFA: I' t, ·1 \ \ \ .} '\ __ \ ~\: --..:. "• t, : ' ,_ .· JUS'rI.CE. OF AlfFE. . ~~- l:i '' 1 • 1 '•,<. ._'~~~~~ ~-- ~>~- ;,.-/ -~~ : L • IM. MAKAME JUSTICE .OF .AFFEAL :f 'i ·f ... H •' - · .~ :11 t / R,. tH. · KISANGA I • 17 ',0 _·· JUSTI.CE OF 'AFFEAL j ,i:.I ' ../ ~:1'I;::~~\ ' . .I ~: : .. 2.er:ti!y},,:th~t~lis is• a' true c0pyl!of the origJ.nal. i / .l,)_t--~ ::, -~;~.-'-. :-:·.,\\ \ ?'~ \f. I 1 ··•/ 1,.. ,: ·,,1· .,, .,,,_ \ ~'- 'I< ·1 ..,. . ~. 'i', r . .-:· . '.)l: .J h • t . ,,; 1t .. •\~\ \ , ),l;J' II ,! d' , ·, ,.... . ,.,.~· . ' ~- ,,; ~..• 1.' k~-"-"- -· 11• ,1·11 . ---~_J- I f' ~~1· ' IJ, ' ,-.., , \ ,:> ,. ·-~ /' __ .•f'' (s •. J;~ LAW:g;NA~ 'l ,, -"}• ..,_- - - - ~ • · . ,✓ DEFlJTy; .REGliSTRAR ··-"~~~~~,;:_;:..-$' I , I_,I {)• _., t I ') !) ~ t1'-' !I ,,} ' 1 ~fr :) ::. , ~~ ·1 <) ;: '.I