20060601 TZCA Dar es Salaam 3

I, I, IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAM.ADHANI, J.A; MSOFFE, J.A; .And KAJI, J.A.) CRIMINAL APPEAL NO. 49 OF 2001 RASHIDI BAKAR.I ... APPELIANT VERSUS REPUBLIC ... RESPONDENT (An Appeal from the Decision of the 'High Court of Tanzania, at Dar es Salaam) · (Bubeshi; J.) dated the 18th day of December, 2000 in , Criminal Appeal No. 4 of 2000 I ■• I ■ I ■ i I JUDGMENT 3 May & 1 June, 2006. . :l RAMADHANL J.A.: I . The appellant, Rashidi Bakari, was convicted of the defilement of i . Beata Selemani, PW 2, a girl under ~he age of fourteen years and I was sentenced to a term of impriso~ment of 25 years. His appeal was dismissed by BUBESHI, J. hence t~is second appeal. !: ,, The District Magistrate of Kisarawe was satisfied with the evidence of PW 2, a girl of tender years, that on ~6th August, 1997; she met the appellant who called her but she refused to go to him. So, the appellant dragged her to a bush and ravished her. She said that she felt some pain as the appellant was fo~cing a penetration but she did I not cry because the appellant told lier ~ot to. ,J. 2 i PW 2's mother, Mariam Mwema, PW i, said that on the fateful day I when she returned from shamba PW 2 w~s not at home. Denis Peter, her son, told her. that PW 2 ran away. when she saw their mother coming. PW 2 returned home at 12.do a.m. but said nothing. The I next day, however, PW 1 noticed that ~W 2 was not walking properly · and that her clothes were blood stain~d. So, PW 1 told Teresa, PW I, ,I 2's sister, to wash her and as Teresa qid so, she discovered that PW I 2 · was injured in her private parts. P\JY 1 told her brother, Ibrahim 1: Mwema, who reported the matter tq the Police. However, D/Cpl Halifa, PW 3, said that he received th~ report on 29th August, 1997, I, from PW 1 and that he sent them to Temeke Hospital with PF 3. I I :! The appellant had two defences: First/ he raised an alibi on 28th and I th 29 August. However, we agree with ~r. Edgar Luoga, 1learned State Attorney for the respondent/Republic, trat alibi is not available to him as the offence was on 26th August. The second defence was that I there was bad blood between him and the complainant's uncle, Ibrahim Mwema, who accused the appellant of a love affair with his, Ibrahim's, wife and that they also had a quarrel over a piece of land. I I -Before us the appellant had eight grouFlds of appeal: One, that PW 2 was a child of tender years so the ;1trial Magistrate should have warned himself before acting on her: evidence. Two, PW 2 was couched by PW 1. Three, Teresia anci Ibrahim were not called as I! witnesses. Four, the appellant was f"lot informed of his right to I . ...: 3 demand the presence of the author of Exh. P 3. Five, the recorder of extra judicial statement of PW 2 was not called to give evidence. Six, the appellant was not asked to plead before the trial began. Seven, the defence of the appellant was not considered. Eight, the sentence is too excessive. At the hearing the ; appellant added two more grounds of appeal: One, he pointed out some contradictions within the testimony of the prosecution witnesses. Two, he pointed out that there is no explanation of how PF 3 came from the Muhimbili Hospital while PW 3 said that he sent the complainant to Temeke Hospital. We agree with Mr. Luoga that PF 3 corroborates the evidence of PW 2, that she was defiled. But there are two matters against PF 3: First, its submission has been faulted, and second, it does not answer the , ' issue who defiled PW 2. It is true that the trial Magistrate believed PW 2. However, at the time of the trial the Sexual Offences (Special Provisions) Act, 1998, (Act No. 4 of 1998) had not been enacted. So, corroboration was required or at least the Magistrate ought to have warned himself of the danger of acting on uncorroborated evidence of a child of tender years. That was not done. Besides, PF 3 cannot corroborate that the appellant defiled PW 2. 4 The plank of the appellant's defence is his challenge of the . authenticity of PF 3 itself. The question is how did PF 3 come from Muhimbili Hospital? BUBESHI, J. said: As to PF which appears to originate from Muhimbili Hospital and not Temeke Hospital, I see nothing wrong with it. The appellant did not challenge its production during trial. It is true that the production of PF 3 was not challenged. However, not a single prosecution witness said that PW 2 was taken to Muhimbili Hospital. PW 3, the investigator, was categorical in cross- examination that "I told them to go to Temeke Hospital". He repeated that in the re-examination: "I referred them to Temeke Hospital". Equally true is the appellant's reliance on the provisions of section 240(3) that When any report is received in evidence the Court may if it thinks fit and · shall if so requested by the accused or his advocate summon and examine or make available for cross examination, the person who made the report, the court shall inform the accused of his right to require the person who made the report to be summoned in accordance with the provisions of this subsection. Had that been done, and had the doctor come to court, the air would have been cleared. As it is the authenticity of PF 3 leaves much to be desired in a proof of a criminal charge. 5 Besides, as the appellant pointed out, there are glaring contradictions in the prosecution's case. For instance, PW 1 said that on 26th she told Ibrahim about PW 2 and that he reported the matter to the Police on the same day. PW 3, the investigator, said that he received the report on 29th August and from PW 1. The issue is when was the matter reported to the police and by whom? This controversy and the uncertainty surrounding PF 3, coupled with the fact that Ibrahim was not called to give evidence, enables the appellant's claim of bad blood and a frame up to find a purchase. For the above-stated reasons we allow the appeal and the appellant is to be set free immediately unless he is otherwise lawfully held. S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the oniginal.