20050425 TZHC Dar es Salaam

~ t"I.,..... ,,,,. \i;:. 't,__... IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 77 OF 2004 (Original Criminal Case No.55 of 2003 in the District Court of Mafia at Kilindoni) . 0 A HAMISI OMARY NGUMU.. ............ APPELLANT ·-. . ,__ VERSUS THE UNITED REPUBLIC .................... RESPONDENT JUDGMENT MANENTO, JK: The appellant, Juma Hamisi Omari Ngumu was charged and convicted of rape c/s 5 (1) (a) of the Sexual Offences Special Provisions Act No. 4/1998. He was sentenced to the minimum of thirty years imprisonment as.provided under section13(1) of the Penal Code as amended by section 6 of the Sexual Offences Special Provisions Act, 1998. He was aggrieved by both conviction and sentence. He has now appealed to this court. The particulars of the charge were that, the appellant on 6/10/2003 at about 9.30 pm at a place called Daweni in Mafia District, Coastal Region did carnal knowledge with one Sharifa d/o Ibrahim without her consent. 2 The prosecution evidence was briefly that the complainant, PWl Sharifa Ibrahim, an old woman aged about 60 years old, on the day in issue, in the afternoon, while walking alone, met with the accused, at or about the air port area. The accused was hiding a razor blade. He ordered the PWl Sharifa to stop or else he would cut her with that razor blade. He drugged the complainant for about 400 meters from the path, fell her down and had carnal knowledge of her. The said old woman raised noises, but the act was finally complete. While raising some noises, she was heard by PW2 and PW3 Imam Ahmed Bujuni and Mohamed Kanda respectively. These two men, followed the area where the noises came from to find the old woman, PW 1 Sharifa naked. They also saw the accused running. They hesitated to approach the old woman first until she dressed herself. PWl was assisted to the hospital via the police station. She was examined and few spermatozoa were seen at her virginal.. The PF3 was tendered in court as an exhibit. In his defence, the accused had just denied to have known anything in regard to the allegation. He was surprised to be arrested and told at the police station that he raped the complainant. DW2 Hamisi Omari told the court that though he was with the accused on the day in issue, at times he went to wash his clothes. The same witness told the court that the accused seemed unrest and at times, he told him that he was going to see a witch 3 doctor since he was suspected of rapping a person. The evidence ofDW2 Salama Hamisi was also to the effect that he was told that the accused had committed rape at the air port area. That was all the evidence before the trial court, which court found the prosecution case proved and convicted the accused. In his memorandum of appeal, he raised two grounds. The first ground was procedural one. That the trial court in admitting the PF3 exhibit I did not call the doctors who examined the complainant, and that contravened section 240 (3) of the Criminal Procedure Act, 1985. The second point raised is that the prosecution did not prove its case beyond reasonable doubts. During the hearing of the appeal, the accused raised new issues which were not supported by his evidence. He said that the complainant was a stranger to him, that, he just saw her at the court house. At the same time, he said that he had grudges with the complainant, PWl and the other witnesses because they had previously implicated him with an offence of burglary. What the accused was telling the court was actually previous conduct, that of committing another offence of burglary, that he was familiar to the complainant and other prosecution witnesses. 4 The Republic supported both the conviction and the sentence. For the I st ground of appeal, the learned state attorney submitted that the PF3 was admitted as exhibit without any objection from the accused and secondly that the prosecution evidence was water tight. He submitted that the appeal be dismissed for lack of merits. It is true, as submitted by the Republic that the accused did not deny having raped the complainant. What he said was just the mode of his arrest. The law does not require that medical evidence be the only evidence to prove an offence of rape. That is because penetration is enough and not the completion of the intercourse by the emission of spermatozoa. As regard to the objection to the medical repot, that is to say, the PF3, exhibit PI section 240 (1) of CPA, 1985 allows the subordinate court to receive it as evidence and under 240 (3) of the same Act, it is only if the court sees it fit or requested by the accused to summon and examine or make available for cross examination the person who made the medical report. The court didn't see it fit to call the medical officer for cross examination or examined by the court as there was no objection to its production. Secondly, the PF 3 exhibit PI was just corroboration to the complainant's evidence, which was water tight. I therefore agree with the Republic that the prosecution evidence left no doubts in the mind of the court. 5 The appeal has no merits at all. It is therefore dismissed on its entirety. JAJI KIONGOZI 25-4-2005 Coram: A.A.M. Shayo, RHC. Appellant- Present For Respondent - Miss Msafiri State Attorney Cc: Claudius Order: Judgment delivered today 25/4/05 in chambers in the presence of Miss Msafiri (SA) for the Respondent/Republic and the appellant in person. A.A.M. Shayo, REGISTRAR HIGH COURT. 25/4/05