20060606 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, l.A., MUNUO, l.A., And MSOFFE, J.A.) I CRIMINAL APPEAL NO. 20 OF 2001 i ALLY HURUKA HUSSEIN ........ ~ ................. APPELLANT VERSUS THE REPUBLIC .......................I,,,'.............. RESPONDENT {Appeal from the decisio~ of the High Court of Tanzania at Dar' es Salaam) i ,I (Bubeshi, ll.) ,, I, dated the 9th day of Qctober, 2000 ·I • I 1n :. HC Criminal Appeal No. 140 of 1999 ---------1 JUDGMENT OF THE COURT r1 31 May & 9 June 2006 I i I MSOFFE, l .A.: I: I ,i -~,~This is an appeal against the conburrent findings of fact by the " courts below that the appellant rapedi the complainant, PW1 Frida I I,, Massawe, on 30/3/1995 at about 16.00 hours at Mkoani area within I. . .I II Kibaha District in Coast Region. I, 11 Both courts were satisfied that on :the fateful day and time PW1 was on her way to attend church services when she was ambushed ,. 2 by the appellant, taken to a nearby bus'.h about five paces away, and raped. At the time of this sexual assault the appellant was wielding and pointing a knife at her. PWl raised an alarm. The alarm scared the appellant who decided to run away leaving behind his right leg shoe and a match box. Shortly thereafter, the said PW1 came out of the bush crying, after which PW2 Martin Mwaimu and some other people who were in the immediate vicinity saw her. She was holding the shoe left behind by the appellant. Her body and clothes were full of mud since, apparently, it had rained on that day. At some other times during that day PW2 saw the appellant, whom he knew quite well before the date of incident, going in and out of the scene of incident apparently in search of the shoe he had left behind after the sexual onslaught on the complainant. The incident was reported to the police and eventually the appellant was arrested, and the complainant was henceforth referred to hospital. The complainant was medically examined and a PF3 duly filled to that effect. The PF3 showed that the complainant was raped. 3 ,1 As earlier stated, the courts be;~low · were satisfied that the complainant was raped by the appellant on that day. Both the 'I • I I District Court of Kibaha (Mhagama, PbM) and the High Court of Tanzania at Dar es Salaam (Bubeshi, l) were of the view that the I f I case against the appellant was establish'ed beyond reasonable doubt, I I specifically because (a) the appellant \iVas known to the witnesses I before the date of incident, (b) the incid,ent took place in broad light, 'i at about 4 p.m., in which case there was no possibility of mistaken • I ! identity, and (c) the complainant knew the appellant quite well before the date of the rape in question. In this appeal the appellant who a,bpeared in person essentially I \ urged three points. One, that his defence of alibi was improperly I I rejected by the courts below. Two, i that he was not given the i • opportunity to call his witness. Three,, that he was not informed of his right to have the ·doctor, who attended the complainant and filled in the PF3, summoned for purposes of cross-examination in line with the mandatory provisions of Section'i 240 (3) of the Criminal ;I Procedure Act, 1985. Subsection 3 read~:- 4 (3) When any such report is received in evidence, the court may, if it thinks fit, and shall if so '.requested by the j accused or his advocate, summon and examine or make available for cross-examination jthe person who made the report. i The court shall inform the accused of his right to require the person who made the ' report to be i summoned in l accordance with the provisions of this subsection. (Emphasis supplied) ! I I We begin with the third complaint. It is true, as is clearly borne out by the record, that the appellant was not informed of his right under the above subsection. In our vie~, however, we are satisfied I that the failure to inform him of the aqove right did not occasion a ' miscarriage of justice, as correctly submitted by Ms. Christina Maganga, learned State Attorney. We say so because even if the PF3 l was to be excluded from the evidence on account of the above 5 failure, there was overwhelming eviden;ce upon which a conviction could still lie against the appellant. Such evidence existed in the testimonies of PWl and PW2 which, like the courts below, we believe to have been a true account of wha~ happened on the date of incident. ' Having said so, we wish to reiterate, for the benefit of magistrates, that where a medical report is introduced and received in evidence it is necessary to inform an accused person of his/her right obtaining under the above subsection. Indeed,: it is mandatory under the provision that an accused person be informed of the right. The complaint on the defence of alibi has no basis. To start with, the appellant did not give notice to the court and the prosecution before the hearing of the c~se that he was intending to rely upon a defence of alibi. In similar vein, he did not furnish the prosecution with the particulars of the alibi before the case for the prosecution was closed. The cumulative effect of these two failures by the appellant is that he did not comply with the provisions of I Section 194 (4) and (5) of the Criminal Procedure Act, 1985. However, notwithstanding the failure i to give notice and furnish 6 particulars as aforesaid, a close look at ~he record will show that the courts below actually considered the defence and rejected it. We find nothing to fault both courts in this regard. Finally, the appellant's complaint to the effect that he was not given the opportunity to call his witness is again, with respect, baseless. The record of proceedings clearly shows that on 29/4/1997 I he told the trial District Court that his witness was still in Saudi Arabia, and consequently that in view of this fact he was closing his case. Furthermore, we think that the ~ppellant is not all that of a truthful person. We say so because on• 19/2/1997 he is recorded to I have told the trial court that his intended witness, who was at the I time on safari to Saudi Arabia as aforesaid, was his employer. Yet, when he appeared before us and made his oral submission he said I that the intended witness was his father! The sentences of twenty years •imprisonment and corporal punishment of twelve strokes of the cane meted on the appellant were legal and merited in the circumstances of the case because of I the seriousness of the offence and the fact that it was committed 7 before the enactment of the Sexual Offences Special Provisions Act No. 4/1998. I I In the upshot, like the courts belo'w, we are satisfied that the I! . case against the appellant was proved beyond reasonable doubt. This second appeal has no merit. It is, accordingly dismissed in its entirety. II DATED at DAR ES SALAAM this 06th day of June, 2006. A. S. L. RAMADHANI JUSTICE OF APPEAL I E.N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE · JUSTICE OF APPEAL i I certify that this is a true copy of the oribinal. . I