20070316 TZCA Mwanza9

I, IN THE COURT OF APPEAL OF TANZANIA ATMWANZA ., (CORAM: LUBUVA. J.A .• MROSO, J.A.• And RUTAKANGWA. J.A.) CRIMINAL APPEAL NO. 222 OF 2004 CHRISTOPHER RAFAEL MAINGU ............ APPELLANT VERSUS THE REPUBLIC ................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Masanche, J.) dated the 9 th day of August, 2004 in High Court Criminal Appeal 240 of 2003 JUDGMENT OF THE COURT 28 February & 16 March 2007 RUTAKANGWA, J.A.: The appellant was arraigned before the District Court of Musoma for raping one Doricasi d/o Bisanda, c/ss 130 (1) (2) (e) and 131 of the Penal Code. The full particulars of the charge read as follows:- 2 "That Christofa Rafael Maingu charged on the 27 day of July, 2001 at about 10.00 hrs. at MAMAUCHUMI GROUP NURSERY SCHOOL Majita Road within the ·Township and District of Musoma in Mara Region, did have carnal knowledge of one Doricasi d/o Bisanda a girl below 10 years." The appellant did unequivocally deny this charge at the commencement of his trial. At the outset, we wish to make it clear that in order to prove the guilt of the appellant as charged beyond any reasonable doubt the prosecution had to prove that:- (a) the appellant had carnal knowledge of Doricasi d/o Bisanda on 27th July, 2001, (b) there was penetration, however slight it might have been and ( c) the said Doricasi d/o Bisanda was a girl below 18 years of age and as such even if she had consented to the sexual intercourse, that was immaterial. -I 3 To bring home the guilt of the appellant the prosecution called four witnesses in all. These were the alleged prosecutrix herself who testified as PWl, PW2 Sara Bisanda (the mother of PWl), PW3 Dr. Mlekwa and PW4 WP 1262 D/Sgt. Neema. To prove his innocence, the appellant testified on oath categorically denying having had any sexual relationship with PWl Doricasi at all, and he called DW2 Fatuma Charles and DW3 Thomas Tudoh to support him. The trial court was very much impressed by the four prosecution witnesses. It accordingly took their evidence to be nothing but true, rejected the defence case calling it "very unsound rendering no reasonable doubt on the well established prosecution case". The appellant was accordingly convicted as charged. He was sentenced to life imprisonment and ordered to pay PWl Doricasi, TShs. 200,000/= as compensation. The appellant was aggrieved by the entire decision of the trial District Court. He appealed to the High Court of Tanzania at Mwanza. The High Court (Masanche, J.) dismissed the appeal in its entirety. Still aggrieved he has lodged this appeal. 4 In this appeal the appellant, through the services of Mr. Byabusha, learned advocate, initially came up with three grounds of appeal. At the hearing of the appeal, Mr. Byabusha, with the leave of the Court, filed a supplementary memorandum of appeal containing three grounds of appeal. After going through the six grounds of appeal and hearing learned counsel for both sides, we are satisfied that this appeal can be satisfactorily and conclusively disposed of on the basis of grounds one and three in the initial memorandum of appeal. They read as follows: "l. That the Honourable trial judge (sic) having held that ... 'penetration, however slight is penetration in the law of rape', failed to go further and hold that on the facts and evidence such slight penetration was not proved beyond . · reasonable doubt (emphasis supplied). 3. That the Honourable trial judge (sic) erred in relying on extraneous evidence on the date the alleged rape was committed and the improper movement of PWl Doricas d/o Bisanda". 5 In order to appreciate the force behind these two grounds of appeal, a quick look at the prosecution case is unavoidable. It went as follows:- Prior to 2ih July, 2001 PWl Doricasi was having her nursery education at Mama Uchumi Group Nursery School within the township of Musoma. The appellant was one of the teachers of PWl Doricasi. One of PWl Doricasi's friends at the school was one Fatuma Charles, who testified as DW2. According to PW2 Sara, on 2ih July, 2001, PWl Doricasi returned home from school at about 12.00 p.m. PW2 Sara took the opportunity to ask her daughter (PWl) about the person who was collecting exercise books in their class for the purpose of taking them to their class teacher. PW2 Sara was very categorical in her evidence that she was prompted to so ask PWl Doricasi, because she had heard comments from her (PWl's) school master to the effect that it was common knowledge to them that PWl Doricasi was doing "shameful things" with her teacher. The response of PWl Doricasi was that it was herself. She hastened to add that the teacher was the 6 appellant and that when she was taking the exercise books he (appellant) was undressing her and "inserting his penis in her vulva" and after satisfying his desires he was rubbing "off the white fluid using a white a cloth". On receiving that information PW2 Sara examined Doricasi's vulva. She found her hymen "ruptured to the extent of allowing through a small hand finger (sic)". That day was a Friday. The following Monday they reported the matter to the police. PW4 WP 1262 D/Sgt. Neema issued PWl Doricasi with a PF3 and PWl was referred to Musoma government hospital for medical examination. At the hospital, PWl Doricasi was examined by PW3 Dr. Mlekwa, a Principal Medical Officer. In the opinion of PW3 Dr. Mlekwa, PWl Doricasi was aged between 5 to 6 years. Although he found no sign of pain or bleeding, he found out that PWl Doricasi's "hymen had an enlarged opening to allow a small hand finger to penetrate". The doctor ascribed this fact to three possibilities. These are, firstly, injuries during playing, secondly, being ruptured during sexual intercourse, and thirdly, any foreign article entering the vagina. The appellant was accordingly charged. 7 In convicting the appellant, the learned trial Principal District Magistrate, after finding PW1 Doricasi to be a very truthful witness accepted her version that she:- " ... was being raped by the accused who used to rub his pe.nis on her vulva and passing out white fluid ... " He was satisfied that this piece of evidence, as supported by that of PW3 Dr. Mlekwa, proved the guilt of the appellant to the hilt. The learned appellate judge was emphatically of the same view. In view of this evidence, which was categorically disputed by the defence, was it proved beyond reasonable doubt that the appellant had sexual intercourse with PW1 Doricasi on 2ih July, 2001 as charged? If the answer to this issue is in the affirmative, then it will be held without further discussion, that the appellant raped PW1 Doricasi as she was a girl below 18 years of age. Submitting on the third ground of appeal, Mr.· Byabusha urged us to find and hold that the prosecution evidence does not show that the appellant carnally knew PW1 Doricasi on 27/07/01 or on any _, 8 . other date prior to that date. He was emphatic that it was crucial to the prosecution case that evidence be led on the specific date when the appellant had carnal knowledge of PWl Doricasi. There is no iota of evidence on record to show this, he argued. He went on to submit that since the prosecution abysmally failed to bring evidence to prove \ that the appellant carnally knew PWl Doricasi on any specific day, leave alone the 2ih of July, 2001, then the charge against him was not proved at all. In support of his submission he referred us to the decision of the Court in Ryoba Mariba @ Mungare v. R., Criminal Appeal No. 74 of 2003 (unreported). He accordingly prayed that the appeal be allowed on this ground alone although he made equally interesting submissions on the other five grounds of appeal. Mr. Bulashi, learned State Attorney, on behalf of the respondent did not resist the appeal. He submitted briefly but precisely on these two grounds of appeal supporting each one of them. He was, finally, of the view that on the evidence on record it could not be held with certitude that PWl Doricasi was raped at all. 9 Having regard to the entire prosecution evidence on record, we are respectfully in agreement with Mr. Byabusha and Mr. Bulashi in their submissions. Evidence to show that the appellant had carnal knowledge of PWl Doricasi on 27th July, 2001 or any other specific date prior to his being charged was crucial and unavoidable. Such evidence, unfortunately, is patently wanting in this case. From the evidence available it cannot be held without demur that the appellant raped PWl Doricasi on any day prior to his arrest and arraignment. But we hold without any fear of being contradicted that there was no scintilla of evidence tendered by the prosecution leading even to an inference that the appellant had sexual intercourse with PWl Doricasi on 2ih July, 2001. In almost similar circumstances, this Court in Ryoba v. R. (supra) held that it was incumbent upon the Republic which had charged Ryoba Mariba with raping one Sara Marwa on 20/10/2000 to lead evidence showing exactly that Sara was raped on 20/10/2000. Sara had only testified generally, as did PWl Doricasi in this case, that she "was raped in October and November, 2000 without more". It was held by this Court that the evidence had failed to prove that Ryoba had raped her on 20/10/2000 which was the 10 specific charge he was facing and was required to answer. We are respectfully of the same view. In the total absence of positive and cogent evidence to establish that the appellant had carnal knowledge of PWl Doricasi d/o Bisanda on 2ih July, 2001 it would be improper in a criminal charge to assume that the prosecution proved its case even on a balance of probabilities. Both the trial court and the first appellate High Court, therefore, were wrong in holding that the prosecution had proved its case against the appellant beyond reasonable doubt. On this ground alone, therefore, we find ourselves constrained to allow this appeal in its entirety. For the reasons given above, the conviction of the appellant is quashed and the sentence of life imprisonment set aside. The order for compensation is also quashed and . set aside. The appellant to be . released from prison forthwith unless he is otherwise being lawfully held. i 11 DATED at MWANZA this 16th day of March, 2007. D.Z.LUBUVA JUSTICE OF APPEAL J. A. MROSO JUSTICE OF APPEAL E.M.K. RUTAKANGWA JUSTICE OF APPEAL I certify that this is a true copy of the original. NYIKA) EGISTRAR