20040311 TZCA Dar es Salaam

BELONGS TO ThE APPEAL OF TANAiNL4I \ * COURT OF APPEAL OFTANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, J.A.; MROSO, J.A.; And NSEKELA, J.A.) CRIMINAL APPEAL NO. 28 OF 2000 BETWEEN . SHABANI DAUDI . ... APPELLANT AND THE REPUBLIC ... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Ihema, 3.) dated the 19th day of May, 2000 In Criminal Appeal-No. 100-of 1-999-- JUDGMENT RAMADHANI, J. A.: The appellant, Shabani Daudi, was convicted of rape c/ss. 130 and 131 of the Penal Code (Cap 16). The learned District Magistrate of Morogoro was satisfied with the evidence of the complainant, Asha d/o Habibu, (P. W. 1) that the appellant raped her on 19th July, 1996. He. was sentenced to a term of imprisonment of twenty years. The High Court (IHEMA, 3.) dismissed his appeal hence this second appeal. He appeared in person while the respondent/Republic was represented by Ms. Phillip,. learned Principal State Attorney. Briefly, the following evidence was before the District Court: the ) . complainant, PW 1, a youth of 15 years of age at the time of the incident, was a pupil at Mkwajuni Primary School, Tukuyu Village, Morogoro. On 1gth July, 1996, at about 2.00 pm, she was alone returning home from school. Suddenly, she realized that the appellant was following her. May be we better let her tell her story: ON when I reached nearby home I saw accused person behind me. Then accused person took my left hand and started to pull me. I started to shout. Then he pulled me to the forest and showed me a knife and iron bar. Then he stopped me to shout. Then he pulled me down and started to raped (sic) me. He raped me for about one hour. We must say that the English leaves much to be desired. Anyway, PW 1 went home after the incident but she did not find her parents They were away. So, she kept the story to herself until the following day, that is, on 201h July, when they returned home Her father, Habibu Shabani (PW 2) 1 reported the matter to Kichangani Police Post where they were given PF 3 (Exh P. 1) She told her parents that she could identify the person who raped her. On the following day, PWs 1 and 2, in the company of Hamisi Shabani (PW 3), unsuccessfully looked for the offender at Kichangani and Kilakala On 23/7/96 the search continued at Mji Mpya but proved to be futile However, the appellant was found in his house at Tungi on 24/7/96 The appellant in his defence denied any involvement He said that on 24/7/96 he was at home with his sister, Tausi Daudi (DW 2), when PWs 1 and 2 and others appeared, arrested him and took him to a Police Station A neighbour of the appellant, Mwamvua Shomary (DW 3), witnessed the arrest The learned District Magistrate in convicting the appellant said I consider the following points. The complainant PW 1 said she was raped on 19/7/96 at 2.00 p.m. when she was returning to school. Accused person did not show the court.. that on that day and time where he was and if possible to call witness but he failed to do so Failing to show the court where he was showed clearly he raped her. 3 Secondly the PF 3 showed that the complainant got bruised around the vaginal office. This is clear evidence which showed she was raped. Thirdly, according to the evidence it showed that the complainant and prosecution witnesses did not know the accused person for this reason it showed that they, have no any conflict so what prosecution witnesses are telling before the court are true. The court is considered it. Fourthly the complainant is a girl of 15 years old as it was seen before the court it was possible for her to identify the accused person without confusing: with other person. According to the evidence they went to manyareastofound a person who raped her why she did not point out any person and point out the accused person. Lastly I did not agree with accused person defence because in his defence he did not show on 19/7/96 at 3.00 pm where he was The complainants went and arrest him is not a dispute in this case We have already commented on the language and we could not put "sic" at all the places that called for. it The appellant's memorandum of appeal to this Court contained basically three grounds a) PW us not a credible witness in view of the following factors i she should have reported the incident on the same day to the local leadership as her parents were away, and ii she did not describe the offender prior to the identification b) Why was there a private investigation which did not involve the Police? c) He was denied his right to cross-examine the author of Exh. P. 1 under section 240 (3) of the Criminal Procedure Act, 1995. 4 We start with a matter which, in our considered opinion, is vitally important and which was a ground of appeal in the High Court but not in this Court. We invoke our powers of revision in the course of hearing an appeal under section 4(2) of the Appellate Jurisdiction Act, 1979, as amended. The appellant complained in the High Court that the learned trial Magistrate shifted the burden of proof to him, that is, the appellant The learned District Magistrate, as her first and last grounds of convicting the appellant, argued that because the appellant did not put up a defence of alibi and did not give an account of where he had been at the time of the incident, then he was the rapist Undoubtedly that was wrong reasoning We are unsure if it did not affect her treatment of the evidence In Idd Kondo v R, Criminal Appeal No 46 of 1998 (unreported) this Court cited with approval Lighton alias Morgege s/o Mundekesye v Rex, (1951) 18 EACA 309 where a magistrate convicted the appellant with theft He had two grounds of appeal one, against the weight of the evidence and two, he was convicted on account of his previous criminal record The High Court summarily dismissed the appeal The Court of Appeal observed that the High Court overlooked the second ground A sub-inspector of Police gave evidence of the appellant's bad character which the Court found was inadmissible and so, said at page 310 we cannot but be left with a feeling of uncertainty as to whether the Magistrate's mind may not have been affected by the evidence which should never have been before him, and that but for this evidence it is possible that he might have come to a different conclusion as to the appellant's guilt 5 The Court quashed the conviction, set aside the sentence and let the appellant at liberty forthwith. We, too, are "left with a feeling of uncertainty" in the present case: was the learned Magistrate's decision influenced by her misdirection 2 She gives the impression that the appellant had to prove his innocence. IHEMA, J. when considering the ground of appeal that the onus of proof was shifted on to the appellant, had this to say Further more although the trial magistrate did appear to shift the burden of proof to the appellant when, -at page 3 of her judgment, she observed that the appellant failed to indicate his whereabouts on 19/7/96 at 14.00 hrs this, in my view, is not sufficient to fault the finding of guilt of the appellant by the trial court on the basis of the evidence on record It is trite law that the burden of proof in criminal matters is always on the prosecution and the degree is beyond reasonable doubt By saying that "the trial magistrate did appear to shift the burden of proof to the t appellant" we understand the learned Judge to mean that there was an apparent and not a real shift of the burden of proof. His reason was that there is sufficient "evidence on record" to support the conviction Let us look at_that evidence We may as well say it here and now that PW 1 is the crucial witness PW 2 merely repeated what he was told by PW 1 that she was raped and that she was able to identify the rapist Then PW 2 and PW 3 testified that they accompanied PW 1 to a number of villages and that eventually she was able to identify the appellant as the person who raped her. Whether the 6 appellant is the rapist or not is the question of the credibility of PW 1 alone. Is she credible? This is ground one of appeal. May be we start by acknowledging that credibility of a witness is the monopoly of the trial court but only in so far as demeanor is concerned. The credibility of a witness can also be determined in two other ways: One, when assessing the coherence of the testimony of that witness Two, when the testimony of that witness is considered in relation with the evidence of other witnesses, including that of the accused person In these two other occasions the credibility, of a witness can be determined even by a second appellate court when examining the findings of the first appellate court Our concern here is to test the coherence of the evidence of PW 1 The District Magistrate, as quoted above 1 found the prosecution witnesses credible because of two factors First, as they were strangers to the appellant, there was no bad blood between them and so, they were telling the truth Second, though PW 1 was a girl of the age of 15 years, she did not waver but was able to pick the appellant from among the many people she had seen in their search We shall talk about the absence_of bad blood Aater but as for the second reason, it is obvious that PW 1 knew exactly who she was looking for. She was not on a trial and error errand However, there is the issue of her not having described the rapist before the search begun That omission forms the second limb of the first ground of appeal In Joseph Shagambe v. R., {1982] TLR 147, the complainant was the sole witness in the identification of the appellant in a robbery case. 7 LUGAKINGIRA, J. (as he then was) referred to Mohammed Aihul v. R, [1942] E. A. C. A. 72 Where it was said at p. 73 that: in every case in which there is a question as to the identity of the accused, the fact of there having been a description given and the terms of that description are matters of the highest importance of which evidence ought always to be given; first of all, of course, by the person or persons who gave the description.and purport to identify the accused, and then by the person or persons to whom the description was given So, PW 1 had to give the description of her ravisher to PWs 2 and 3 who in turn had to reiterate that description to the court That was not done in this case Moreover, the appellant challenges the two reasons given by the learned District Magistrate as to why she found PW 1 credible The appellant said in his reasons Your lordship, considering the above circumstances, it is clearly visible that PW 1, PW 2, and PW 3 were guided to point the finger at the appellant having been influenced by a third party. What he is saying is that in the absence of prior description of the rapist, PW 1 picked the appellant not because she identified him but because she was directed by someone to pick him However, the appellant did not suggest why someone should want him to be picked Here we think the question of bad blood could appropriately be brought into the scene We fail to see why the appellant should be framed The appellant had to cause a reasonable doubt in our minds that he might have been framed He did not even suggest that he and PW 1 knew each other or that he was known to any of the prosecution witness or any person who was present when he was arrested So, in the absence of some reasonable doubt, we are 8 satisfied that PW 1 identified the appellant because she recognized him as the person who raped her. On the issue of the credibility of PW 1, IHEMA, J said In my considered view, the trial Magistrate properly directed • herself in accepting the evidence of PW 1 that the appellant was her rapist on 19th July, 1996 and having been in his company for an hour and in broad daylight, her testimony on appellant's identity is credible. Two matters satisfied the learned Judge as to the credibility of PW 1 First, she was raped for one hour and second, the rape was done in broad daylight We accept the second factor of broad daylight as conclusive proof that ) visibility was extremely good and, therefore, everything else being equal, PW 1 should not have any problem in identifying her ravisher But as for the second matter the learned Judge took it that PW 1 was in the appellant's "company for an hour" That is not what PW 1 said She said that she was raped "for about an hour" That discrepancy notwithstanding, could PW 1 be taken seriously on the time Was she raped by, a single person "for about one hour" 7 Besides, PW 1 told the court that "when I reached nearby home I saw accused person behind" and that he pulled her to a forest and raped her. So, the rape took place not very far from PW l's home It is unlikely that the incident took place far from the victim's home for reasons to be discussed soon If it was near home, could the rape really have been for about an hour 7 In our opinion it is doubtful that the rape took about an hour. The question is how long did it take and whether it was long enough for PW 11 I a youth of 15 years of age, to memorize the identity of her ravisher while under the trauma of rape? PW 1 said that she was pushed into a bush and she was then raped. We have no doubt in our minds that that took some minutes and as there was bright day light, the time was sufficient to give PW 1 an opportunity to memorize the face of her ravisher. If PW 1 had ample opportunity to see her ravisher and, therefore, was able to recognize him when she saw him the next time, would we doubt her identification simply because she had omitted to describe him before hand? In Mohamed Alhui the identification was done some eleven months after the event and it would appear to us that the Court took that fact into account when it said In the absence of evidence regarding any description of the burglar by the persons who purported to identify him as the appellant eleven months later, that identification loses much of its value In the present case, however, the identification was made only five days after the incident when PW l's memory was still very fresh We, therefore, are of the decided opinion that the omission to describe the rapist should not be a factor since we are satisfied that the conditions for identification were optimum PW 1 had been with the appellant for a sufficient time and that visibility was extremely good However, there are other pieces of evidence which raise some doubts PW 1 said thatthe rapist pulled her into a forest and threatened her with a knife and an iron bar. If that was so, then the rapist could only have used one hand to push her while the other hand brandished a knife and an iron bar at the same time. Was that possible? It is reasonable to infer that 10 there was some resistance on the part of PW 1 and that she would use her sheer weight to do so. Could the appellant have succeeded to drag her into the bush with one hand Admittedly, we have not seen PW 1 to assess her weight On the other hand we have seen the appellant and he is small in stature. But one thing is obvious to us: the appellant could not have dragged PW 1 for a long distance with one hand and so, the rape could not have taken place very far from the house where PW 1 was staying Did they not hear her shouts before she was silenced? We cannot say that these questions are free from doubt Had the appellant suggested in his defence that he and PW 1 knew each other and that it was not rape but that she had given her consent, then those doubts could have been reasonable and we would not have found it difficult to resolve them in his favour. It is not every doubt which negates a conviction but only a reasonable doubt does so So, we agree with IHEMA, J that the shift of the burden of proof is more apparent than real as there is cogent evidence to support conviction The second ground of appeal raises another important question Why was there a private investigation? According to the evidence the matter was reported to the Police and on the same day the search was mounted but without involving them No explanation was given for this conduct This causes some concern especially when one of the investigators was the father of the complainant This question was not put to any of the prosecution witness and, so, we can only speculate Private investigation in itself is not an offence. So, the only issue is the credibility of PW 1 which 11 we have found that she had all the opportunity to enable her to identify the ravisher. The appellant's third ground of appeal was that he was denied his right to cross-examine the author of PF 3 This attacks the learned Magistrate's second ground of convicting the appellant that since Exh. P. 1 (PF 3) showed that PW 1 had bruises in her private parts then she was raped Admittedly, an accused person has the right under section 240 (3) of the Criminal Procedure Act to cross-examine the author of a medical report which has been received in evidence and that the Magistrate is duty bound to inform the accused person of this right The record of appeal does not show that that was done in this case So, undoubtedly the appellant was denied that right and that was contrary to the provision cited above However, we do not think that the appellant was prejudiced by that omission Exh P. 1 merely showed that PW 1 had probably been raped because of the bruises in her private parts That exhibit, however, does not say that the rape was committed by the appellant Thus, it does not contradict the appellant's denial that he is not the one who raped PW 1 Incidentally, it has never been the case of the appellant that PW 1 was never raped at all, because, had that been so, then, Exh P. 1 would have contradicted him So, we dismiss this ground, too We are satisfied then that there is sufficient evidence to support the conviction of guilt on the part of the appellant So, the appeal is dismissed I 12 However, Ms. Phillip drew our attention to the fact that the offence was committed in July, 1996, so, the punishment of twenty years was illegal since it contravenes section 170 (1) (a) of the Criminal Procedure Act, 1985. That provision fixes the maximum sentence of five years except for scheduled offences when the. sentence is not to exceed eight years. Ms. Phillip submitted that the appellant could only have been punished for a period not exceeding five years or else the District Court had to send the case to the High Court for sentencing and that was not.done. We agree with her. SO, we set aside the sentence of twenty years that was given to the appellant and substitute thereof one of five years from the date he started serving it, that is, from 13 th May, 1997. In that case the appellant ought to have completed his term of sentence So, we order that he be released immediately unless there is a lawful reason to detain him any further. DATED AT DAR ES SALAAM this 11th day of March, 2004 A. S. L. RAMADHANI JUSTICE OF APPEAL J A. MROSO • JUSTICE OF APPEAL • H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the oninai d .