20060705 TZCA Tanga

_; . . \ ·... ~0,.,.~ . ~--· .. ;· i ·- . I'.~ IN THE COURT OF APPEAL OF TANZANIA ATTANGA · (CORAM: MAKAME, J.A., MUNUO, J.A. AND KAJI, J.A.) CRIMINAL APPEAL NO. 118 OF 2004 RAMAi>HANI HEMEDI. ... .......................... ............ APPELLANT VERSUS THE REPUBLIC •..•.•..........•..••.•••.••••................... RESPONDENT (Appeal from the Conviction and Sentence of the High Court of Tanzania at Tanga) ( Longway, J.) dated the 2 nd day of June, 2003 in Criminal Appeal No. 59 of 2002 l UDGMENT O F T H E COURT -------------------- 21 June & 5 July, 2006 MUNUO, l. A.: In Muheza District Court Criminal Case No. 268 of 2000, the appellant, Ramadhani Hemedi @ Mado, was convicted of rape c/s 2 130(e) and 131(i) of the Penal Code as amended by the Sexual Offences Special Provisions Act No. 4 of 1998. He was sentenced to life imprisonment for unlawfully having carnal knowledge of a 5 year old female child, one Mwantumu Machemko @ Tumu, on the 9th day of October, 2000 at about 4.30 p.m. at Mapatano Village in Muheza District. Aggrieved by the conviction and sentence, the appellant preferred Miscellaneous Criminal Appeal No. 59 of 2002 in the High Court of Tanzania at Tanga. Longway, J. dismissed the first appeal for want of merit. The appellant then lodged this second appeal to challenge the conviction and sentence. The facts are not complex. On the material afternoon, the victim, Mwantumu Machamko, was playing with other children outside their house. The appellant passed by and lured the victim to follow him to collect some guavas. The small girl followed the appellant. On the way, he diverted to a bush, took off the girl's underwear and raped her. He then gave her shs.10/= and ordered her off, warning her not to tell anyone what he did to her. Meanwhile, a neighbour who had seen Mwamtumu follow the 3 appellant to collect guavas, alerted her mother, P.W. 1 Mwanvita Machemko. She trekked the route the appellant and her daughter took but could not trace the small girl. She also inquired at the house of the appellant but was told he had not returned home. P.W. 1 returned home and found Mwamtumu there. The latter told her mother that the appellant had given her shs.10/=, out of which she used shs.5/= for buying cassava. Upon disclosing that the appellant had ravished her, P.W. 1 reported the matter to the village chairman, P.W. 3 Patrick Ndarijanie. Upon the complaint of P.W. 1, the appellant was arrested by a militiaman. P.W. 3 questioned the appellant: the appellant said the devil (shetani) had caused him to rape the small girl. The appellant allegedly pleaded with the girl's father so that they would settle the problem amicably but the girl's father refused so the village chairman forwarded the appellant to the police at Maramba. The appellant was then accordingly charged with the offence of rape. The investigating officer, P.W. 5 E.80 PC Otto of Maramba police visited the scene of crime and drew the sketch map thereof which he produced as Exhibit P.3. He also received from Mwamtumu Machemko the remaining shs.5/= out of the shs.10/= 4 the appellant gave her, having spent the other shs.5/= for buying roasted cassava. The complainant was examined by P.W. 4 Amiri Hamza, a medical assistant at Maramba Health Centre, on the 10th October, a day after the rape. Her PF. 3 was tendered at the trial as Exhibit P.1 but we could not trace it in the original record. The said medical assistant stated at page 18 of the record of appeal: " ... I observed the (child) girl. However, the mother brought with her a PF. 3 for that girl issued to her at the police station at Maramba (out post). However, I revealed that the vagina was reddish which was normal to a girl. I also revealed that whenever you touch that girl at those viginal parts, the girl turns to be tender (pains). It means she was feeling pains. I also revealed that the hymen was intact. However, I also according to my ""' 5 observation we checked the urine, hence the same revealed negative. Hence it could be because it was a short period. However it is now my observation that the vaginal area was disturbed by (scratching) or raping." We shall comment on the above PF. 3 later. Subsequently the appellant appeared in court for raping the small girl. In his sworn defence, the appellant categorically denied the offence and narrated how he was arrested by a militiaman and taken to Maramba police station where he was charged with the present offence. In his five grounds of appeal, the appellant complained that the PF. 3 of the complainant did not definitely establish that she had been raped because it stated that the victim could have scratched herself in the ·private parts. He further contended that the age of the complainant was not below ten to justify a sentence of life imprisonment. 6 In grounds 3 and 4 of the appeal the appellant claimed that the evidence of the small girl should not have been admitted because she was a child of tender years. Nor should the confession he allegedly made before the village chairman have been admitted in evidence, he asserted in ground four. In ground five of the appeal, the appellant contended that the prosecution did not prove the case beyond all reasonable doubt so the trial court ought to have acquitted him. Before us, the appellant alleged that the case was fabricated by the complainant's father because of a border dispute between them. Ms. Maganga, learned State Attorney, supported the conviction and sentence. Commencing with the PF. 3 of the complainant which is not in the record of appeal, the learned State Attorney observed that at page 18 of the record, the medical assistant who examined the complainant a day after the rape, stated that - "the vaginal area was disturbed by (scratching) or raping." 7 This observation by the medical assistant, Ms. Maganga pointed out, corroborates the complainant's evidence that the appellant, a relative she knew well, raped her after luring her with an offer of guavas at his home. With regard to the age of the victim, the learned State Attorney observed that the charge sheet reflected the age of five while the medical assistant estimated that the raped girl was about 5 years of age so the victim was below ten years at the material time. In any event, the learned State Attorney contended, the appellant did not raise the issue of the age of the raped victim in the courts below so it is too late in the day to raise the said issue in this appeal. On voire dire examination, the learned State Attorney submitted that the trial magistrate took the evidence of the complainant after being satisfied that she knew the duty to state the truth. She gave unsworn evidence and the trial magistrate did not make a finding on whether or not the little girl knew the meaning of 8 an oath. All in all, the learned State Attorney contended that the evidence of the four prosecution witnesses and the PF. 3, Exhibit P.1, established the guilt of the appellant beyond all reasonable doubt so the present appeal is devoid of merit. The issue is whether the appellant raped Mwamtumu Machemko, a child of tender years, then aged five years. When determining the first appeal, Longway, J. stated:- From the record of the trial it is clear and I am further satisfied that the trial magistrate believed the prosecution witnesses especially P.W. 1, P.W. 2 and P.W. 4 as regards the offence and its occurance. This being the case that the trial court had advantage to see and hear the witnesses, I find it improper to disqualify their evidence. 9 ... The learned judge continued: Indeed it was noted that the incident took place during hours of the day, was by a person who was very familiar to the complainant and her mother, all who had not quarrelled with the appellant. I am agreeable as the respondent argued that the circumstances of the evidence did irresistibly point to the appellant and I further agree that his argument on appeal holds no water. I therefore dismiss it entirely .... We respectfully agree with the learned judge. In her unsworn evidence at page 14 of the record of appeal, the little girl stated: Aced ... asked me to follow him to his home so that I collect some guavas. ... I agreed and followed accused hence we went into a IO bush. Accused at that area of the bush removed my underwear and lay me down. Accused thereafter did lie on my body ... I was looking up. ... he laid over me he placed his "dudu" here (pointing to her vagina). ... he laid over me he removed his clothes especially his long trousers and thereafter he placed his "dudu" here (pointing to her vagina). It was thereafter the accused gave me shs.10/= and thereafter we left. I went home and he went to his home. I went to buy "kitobonya" (grinded cassava) for shs.5/=. I remained with shs.5/=. I gave shs.5/= to the police at Maramba. I did tell my mother at home when I was asked because this area was aching (pointing to vaginal area). 11 We are satisfied beyond all reasonable doubt that the victim vividly remembered and therefore correctly narrated how the appellant lured her from the place she was playing with other children on the pretext that he was going to give her guavas. That the appellant raped the victim is supported by her PF. 3, Exhibit P.1. The circumstances of this case fall under the provisions of Section 130(4) of the Sexual Offences Special Provisions Act No. 4 of 1998 which state, inter-alia: Section 130 (1) It is an offence for a male person to rape a girl or a woman. (2) (3) (4) For the purposes of proving the offence of rape- (a) penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence; and 12 (b) evidence of resistance such as physical injures to the body is not necessary to prove that sexual intercourse took place without consent. The issue of consent is irrelevant in this case because the victim of rape was a five year old child. She is covered by the provisions of Section 131(3) of the Sexual Offences Special Provisions Act, 1998 which states:- 131. (3) Notwithstanding the preceding provisions of this section whoever commits an offence of rape to a girl under the age of ten years shall on conviction be sentenced to life imprisonment. 13 We are satisfied that the evidence on record and in particular the testimony of the medical assistant who examined the victim shows that the said victim was five years. Under the circumstances, the appellant was rightly sentenced to the scheduled sentence of life imprisonment. We find no merit in this appeal. We accordingly dismiss the appeal. DATED at TANGA this 5th day of July, 2006. L. M. MAKAME JUSTICE OF APPEAL E. N.MUNUO JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. (