20050603 TZCA Tanga2

IN THE COURT OF APPEAL Of TANZANIA ATTANGA {CORAM: MUNUO, J.A., MSOFFE, J.A. And KAJI, J.A.) CRIMINAL APPEAL NO. 113 OF 2004 DAMAS DAUDI .••••••••..••••••.••••...•.••.•.••••••••••••••••••.••••• APPELLANT VERSUS THE REPUBLIC ••.••.•••••••••••••••••••••••••••••.••••••••••••••.••• RESPONDENT {Appeal from the Decision of the High Court of Tanzania at Tanga) {Longway, J.) dated the 1st day of October, 2003 in Criminal Appeal No. 54 of 2002 JUDGMENT OF THE COURT KAJI, J.A.: This is a second appeal. In criminal case No. 24 of 2000, in_ the District Court of Pangani District at Pangani, the appellant, DAMAS DAUDI was charged with and convicted of the offence of rape contrary to sections 130 (1) and 131 (1) (2) (a) of the Penal Code, Cap. 16, as amended by section 5 of the Sexual Offences Special Provisions Act No. 4 of 1998. He was sentenced to 30 years imprisonment. He was ordered to pay MAKOMBO w/o AKIDA (PWl) Tshs. 30,000/= as compensation for the injuries she suffered. His appeal to the High Court at Tanga (Longway J.) was dismissed for want of merit. lj 2 The facts which gave rise to the case can -,priefly be stated as follows: The appellant and PW1 were residents of Sange village. On 23 rd April, 2000, at about 02.00 a.m., while PW1 was asleep •in her hut, she felt somebody caressing her. She lit a match box and discovered that it was the appellant. The appellant blew off the light. PW1 raised an alarm but the appellant who was armed with a knife, threatened to stab her if she continued raising the alarm. The appellant grabbed her and threw her on the ground and had sexual intercourse with her without her consent. Thereafter the appellant went out of the hut. PW1 raised an alarm again. The appellant went in and threatened to kill her if she continued raising the alarm. The appellant asked PW1 whether she knew him to what PW1 denied. He asked for money but PW1 told him she had none. The appellant jumped on PW1's bed and slept. When PW1 realized that the appellant was asleep, she sneaked out stealthily and went to report the matter to her neighbour SELEMANI ALLY (PW2). PW2 informed other neighbours such as HUNGIRO ALLY (PW3) and ATHUMANI RASHID! (PW4). PW2, PW3 and PW4 went to PW1's hut. Indeed they found the appellant therein. When the appellant realized that he was in trouble, he got out with his pair of trousers in his hand, 3 threatening to kill whoever would appr9ach him. However they overpowered him and arrested him. In his defence he totally denied the offence. However at the end of the day he Was convicted and sentenced as above. He was dissatisfied. His appeal to the High Court was dismissed for want of merit. He still protested his innocence; and hence this appeal. Before us the appellant appeared in person, and Mr. Kagaigai, learned Senior State Attorney, appeared for the respondent Republic. In his memorandum of appeal the appellant preferred 4 grounds of appeal which basically hinge on the burden of proof, that his guilt was not proved to the standard required. He complained that, neither the knife nor the match box were tendered in court as .exhibits, and that the .~videncE: of PW1 ,~acked corroboration. In his oral submission before us, he admitted to have had sexual intercourse with PW1, but that it was with her consent. He contended that, had he threatened PW1 with a knife, the said knife would have been tendered in court as exhibit. He further contended that, after having sexual intercourse with PW1, he fell asleep until 4 when he was arrested and beaten on all,egation that he had raped PW1. On his part, the learned Senior State Attorney pointed out that, the evidence of PWl left no colour of doubt that the appellant had sexual intercourse with PWl without her consent, and threatened to stab her to death if she continued raising. the alarm. The learned Senior State Attorney contended further that, there was no necessity for the knife to be tendered as exhibit, because the issue. was rape whose proof did not necessarily require production of a knife. The learned Senior State Attorney drew our attention to the appellant's memorandum of appeal to the High Court where he had clearly stated that he was not disputing the rape but merely the sentence. There is amp1e-evidence by PW.1 ·-that the appellant had sexual intercourse with her without her consent. PWl told the Court dearly how she felt somebody caressing her, how she lit a match box and discovered that it was the appellant, how the appellant threatened to stab her to death if she continued raising alarm, and how she sneaked out stealthily and reported the matter to her neighbour 5 PW2. PW2, PW3 and PW4 found the appellant still in PW1's hut whereby he got out and threatened to kill whoever would approach him. There is evidence by PW2, PW3 and PW4 that the appellant admitted the offence and pleaded with them not to take legal action against him, and that he was ready to pay all costs which would be needed in treating PW1. The PF3 also confirms penetration. The appellant's allegation that PW1 consented has no merit for the following reasons: First, the appellant had not rais~d this defence in the courts below. Second, rape is not a pleasant act for the victim to be proud of. PW1 at her advanced age of 70 would not simply have complained to her fellow villagers of being raped by the appellant just to amuse herself. Third, in his ground of appeal to the High Court, the appellant declared that he had no dispute in respect of conviction, and that his appeal was only against sentence. In that ground of appea_l he stated as follows:- "The appellant does not dispute rape to have perpetrated. But he argues and submits that the imposition of 30 years imprisonment is excessive and offends Article 13 (c) of the Constitution of Tanzania. The trial recorded 6 evidence as corroborated by '·fJW2, PW3 and PW4 the victim was seized right at the actual scene of crime without the talked knife. The sentence should not be based on the usage of knife." In that respect, his allegation at this stage that PW1 consented is just an afterthought which has no merit. The appellant's complaint that the knife should have been tendered as exhibit has also no merit. The issue here is rape whose proof does not necessarily require production of a knife. Considering all these in their totality, we accept the learned Senior State Attorney's submission that the prosecution proved the . guilt of the appellant beyond all reasonable doubt. The sentence imposed is the minimum Jor_ the offence charged. Thi~ appeal .has no merit. In the end result, and for the reasons stated, we dismiss the appeal in its entirety 7 DATED at TANGA this 3rd day of Juri~, 2005. E.N. MUNUO JUSTICE OF APPEAL .... (. / 0 ' • J. H. MSOFFE TICE OF APPEAL N. ,b ,~ S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. (S. RA) SENIOR REGISTRAR