20051102 TZHC Mwanza

J ,··.•·· -- , {..... . .. , IN THE HIGH COURT OF TANZANIA ATMWANZA APPELLATE JURISDICTION HC.· CRIMINAL APPEAL NO. 345 OF 2004 . (Original Cr. Ca$e No. 44 of 2004 of District Court ofSerengeti District at Mugumu Before: J. R. MSANGYA Esq. District Magistrate}· MASANGA KIBIRITI .............................................APPELLANT Versus THE REPUBLIC ................................................... RESPONDENT 26th Sept. 2005 & 2 nd Nov. 2005 JUDGMENT RWEYEMAMU, JUDGE: The appellant Masanga Kibiriti was ch~rged and convicted of rape. He has appealed both conviction and ssntence. I '' The victim a child of two years is the d~ughter of Pw 1 and Pw2 • The appellant was their ·employee, who tetdered · their cattle and used to stay with them. The prosecution case was in brief that: On the material day, the two witnesses arrived at their home; heard their child crying from the room where the aJpellant was. They went in there and found him trying to penetrate h r, the child was crying. ' They raised an alarm and Pw 3 and Pw4 c me in response. The parents Pw 1 and Pw 2 told them what they ha seen. The matter was · reported to the police and; the child taken to hospital and a PF 3 (P Exh. 2) completed, the Dr's report thereon rea as follows:. "Vulva no injury, hymen intact. But found whiti fluid in the vagina . and on the edge, impression there is a high possibility of rape to this child" · ..,, . The Dr's report was tendered in evidence by Pw1' incidentally, without giving chance to the accused to make any comments. ·The appellant during cross examination of prosecution witnesses Pw 1 and Pw2; his defense and in his memorandum of appeal to this ·court, consistently claimed that he was demanding salary from his employers who sought to swindle him out of his money by concocting the charge of rape. The Trial court in convicting the appellant concluded that: "The aced person's denial that (she) had not attempted to rape-;..-The doctor's report has reveals every fact in this case----accused is convicted of attempted rape'~ The learned state attorney agrees as he supports the appellant'sI conviction on those facts. I do not agree with t~em. . ' For one, there was no proof that the wtilitish fluid noticed by the Dr was in fact spermatozoa. Evidence regdrding that fact ought to have been gi~en, either by having the Dr, br at least the police investigator, who found sufficient grounds to la~ the charge testify. It would appear that the trial magistrate also entertained some doubts that is why despite observations that; "The whitij fluid found in the vagina and on the edges of the alleged child was the final step of rape the accused had reached'; he convicted the appellant of attempt d rape· and not the offence of rape he was charged with. The appellant's. story. is . plausible, particularly so, in the absence f the investigator's ' ' . testimony. As the appellant raised the issue of · otive frorn the very . ' beginning, investigator's testimony could . have. p ovided •missin _ ....... ·nks· . by throwing light on the relationship between t e appellant and the 2 :E ',,' ~():.T i· ~ m,_t,I victim's parents, and the likely hood or falsity of the appellant's '. 'T_: defense. In its absence, there remain. doubts, which have to be '.:;1.i'I, ' ' . resolve.d in favour of the accused/appellant. ·r· ...... It is. I believe, r1Qt ou of place to';;;-eat ~ a d e elsewhere that investigation and prosecution of rape cases must be treated with the ,same seriousness accorded other serious crimes attracting heavy penalties. See Ezekinya Ondego Akanga v. R, HC Cr. Appeal 78/2005,· Mwanza registry unreported; and from the· same registry, Sa.mwel s/o Lage @ Jumbo Vs R He. Cr. App. 180/2003 where Masanche J, observed that; T ·l r.ll...n,,t, " After reading the entire record, I get· the impression that the prosecution into this rape case was very ct,sual..... . • .,r I •\ ,J... ... Rape is a serious offence: it attracts: life imprisonment. So, investigating officers must be thorough iq their investigation. And indeed, it behooves reasoning to see th/tf even the investigating officer would ignore to come to Court and restily" And on the sanie issue of abJence of the investigators testimony Masanche J, observed in Luca~ s/o Kahindi Vs R, Mwanza I HC.Cr. App. 236/2003, Mwanza registry (tnreported), that; · \ \ · "the law has not put investigato~ to be .r'lal witnesses. in criminal trials for fun. These are the people who link accused to .the ·commission of the offence-" In light of the above, I find that t e prosecution case did not ·. establish the guilty of th_e appellant beyo d reason.able doubt, and on .·.~{ft ... ·3 :~I.·. ~ . ft .a;. I ' "( '_ ' . •· --' I - that ground find the appeal merited. The appellant is to be released unless otherwise lawfully held. [ [ JUDGE [' 01/11/2005 l Judgment delivered in the open at Mwanza on 2nd day of November 2005 in the presence of Kiria State Attorney for the Republic and the [ .... presence of the appellant under custody . "-\ ' l [ JUDGE 02/11/2005 l l L I l l l I _Ji. l 4 r rrru l