20070316 TZCA Mwanza4

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA (CORAM: LUBUVA, l.A., MROSO, J.A., And RUTAKANGWA, l.A.) CRIMINAL APPEAL NO. 173 OF 2004 AMOS PETER ••••••••••••••••••••••••......•••.•••••••• APPELLANT VERSUS · ... THE REPUBLIC .................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) (Mwita, l.) dated the 10th day of August, 2004 in Criminal Appeal No. 74 of 2002 JUDGMENT OF THE COURT 1 & 16 March 2007 LUBUVA, l.A.: . In the District Court of Nzega at Nzega, the appellant was charged with and convicted of the offences of abduction and rape contrary to sections 134, 130 and 131 of the Penal Code. He was sentenced to a term of imprisonment of one year and thirty years 2 with twelve strokes respectively. The sentences were to run concurrently. Briefly stated, the prosecution case against the appellant was as follows. Angela Peter (PWl), the daughter of Peter Manyama (PW2) aged about 15 years, was a student at Puge Secondary School. The appellant was staying in a house near a rented house where PWl stayed while she attended school at Puge. The rent was paid by PW2. On 20.7.2000, the appellant invited PWl to his house to collect presents from her (PWl) parents. When PWl entered the house of the appellant, he locked her in the bedroom and forced her to have sexual intercourse with him. Upon completion of the sexual intercourse, PW2, the father of PWl, accompanied by a police man (PW3) knocked on the door of the appellant. The appellant opened the door and PW2 and the policeman entered. The appellant was arrested. The following day, the complainant (PWl) was taken to the hospital for medical examination which indicated that PWl was two months pregnant. 3 Initially, the appellant was charged for the offences of rape and abduction in Nzega Criminal Case No. 111 of 2000. The trial was conducted to completion by Rutechura, District Magistrate. On appeal to the High Court Tabora, the proceedings were quashed and set aside on account of irregularities in the trial proceedings. A retrial was ordered before the same court and magistrate which has resulted in this appeal. As ordered, a retrial was conducted vide Nzega District Court Criminal Case No. 88 of 2002. In the trial proceedings, unlike the previous one, the complainant, Anjela Peter (PWl) testified. In his defence, the appellant denied the charge claiming that the case had been framed against him by PW2, the father of PWl because PW2 was suspecting him of having an affair with his (PW2) wife. He said there was bad blood between him and PW2. To support the claim that there was bad relationship, the appellant tendered a .letter of agreement from the Ward Executive Officer, Puge. The letter shows that the appellant had been ordered to apologize for uttering insults to PW2 and pay 15,000/= to him. Furthermore, it was claimed at the 4 trial that PW1 had conceded to have had sexual intercourse with the appellant without her consent. The trial magistrate rejected the appellant's defence of bad relationship as an afterthought and that PW1 was found in the room of the appellant at night time. The appellant was accordingly convicted and sentenced. In this appeal the appellant appeared in person. In his memorandum of appeal, among other issues, he raised the following: First, that the courts below erred in basing the conviction on the evidence of PW1 and PW2 which was a frame up against him. Second, that because of fear that the magistrate would not be fair to him he had asked the trial magistrate to disqualify himself from the trial. Third, that because of the long standing bad relationship with PW2, fearing that the trial magistrate may not record his defence correctly, he filed his written defence which is not reflected in the record. At the hearing of the appeal, the appellant also addressed the Court. He emphasized that the case was a frame up ·against him. He insisted that the trial magistrate had conspired with the mother of 5 PWl to fix him. That this is so, he said is evident from the fact that his defence in writing is not in the record. He was adamant that the trial magistrate was bent on fixing him by hiding his written defence and that what appears on record as his defence was the trial magistrate's own version. For the same purpose, the record does not show that he had applied for the trial magistrate to disqualify himself from conducting the trial of this case. He wondered how he could remain silent at the trial in objecting against the trial magistrate conducting the trial if he had written to the Resident Magistrate Incharge Tabora on the issue which was replied by letter of 6.6.2002. With regard to the clinic card Exhibit P.1 the appellant said if anything at all, it was proof that he was not responsible for the pregnancy of PWL According to him, if in July 2000, when the alleged rape took place PW1 was two months pregnant, it is incredible that on 9.12.2000 a fully grown child was born. This again, he insisted, is indicative of a framed up case against him. He . . 6 also said there is no medical evidence from the Doctor who examined PW1 to show that she had been rapea. Mr. Mdemu, learned State Attorney for the respondent Republic supporting the conviction and sentence firmly contended that the evidence of the complainant (PW1), PW2 and PW3 was sufficient to sustain the conviction. He submitted that PW1 was supported by PW2 and PW3 who found PW1 in the room of the appellant. Furthermore, the State Attorney insisted, in his defence at the trial, the appellant admitted having had sexual intercourse with PW1 with her consent. Concluding his submission, Mr. Mdemu said if the evidence of PW1, PW2 and PW3 is believed as the courts below did, there was sufficient evidence to support the conviction. There is no dispute that the appellant was convicted solely on the basis of the evidence of the complainant (PW1), her father (PW2) and the police officer (PW3). We shall first deal with the offence of abduction in the light of the evidence of these witnesses. The offence of abduction of a girl under the age of 16 years is provided under section 134 of the Penal Code which provides: 7 134. Any person who unlawfully takes an unmarried girl under the age of sixteen years out of the custody or protection of her father or mother or other person having the lawful care or charge of her, and against the will of such father or mother or other person, is guilty of a misdemeanour. From these provisions of the law it is apparent that the essential element of the offence is the act of unlawfully taking an unmarried girl under the age of 16 years out of the custody or protection of her parents or any other person having the lawful care or charge of her. In this case the question is whether PWl was taken out of the custody or protection of her parents including PW2. The evidence of both PWl and PW2 clearly shows that at the time of the alleged offence, PWl while schooling at Puge Secondary School, and was staying in a rented house at Puge near the house where the appellant also stayed. In her evidence PWl also states in no uncertain terms that on 20.7.2000 at about 7.00 p.m. for the first time she was invited to the house of the appellant. That while in the • .. 8 room, the appellant had sexual intercourse with her at the end of which the appellant was arrested. Under such circumstances, can it be said that the complainant who was living at Puge away from her parents was abducted during the time she is alleged to have been in the house of the appellant. Admittedly, in the course of her stay at Puge, PWl would ordinarily have visited other places without necessarily the sanction of her parents who stayed at Mirambo Itobo. All the more so, for those in the neighbourhood of the house where she was staying at Puge such as the appellant. In that situation, considering the time factor and the whole circumstances in which the alleged offence took place, it is doubtful that the offence of abduction as provided under section 134 of the Penal Code had been established. Following the complainant's (PWl) visit to the house of the appellant on 20.7.2000 the prosecution case against the appellant was that the appellant had sexual intercourse with PWl without her ... I • 9 consent. As said before, the evidence was based on PW1, the complainant and her father, PW2. This is the evidence that the appellant seriously challenges to have been framed against him by PW2. The appellant has consistently raised this issue not only at the trial leading to this appeal but also during the previous trial which was quashed and set aside when a re-trial was ordered. It is imperative therefore, to examine this evidence closely. The crux of the appellant's assertion is that there was bad blood between him and PW2. This is so, according to the appellant, because PW2 suspected the appellant of having an affair with his (PW2) wife. The allegation of bad relationship between the appellant and PW2 is supported by the letter of agreement Exhibit D.1 of 16.4.2000 witnessed by the Ward Executive Officer Puge. The agreement shows that the misunderstanding had something to do with PW2's suspicion that the appellant had love relationship with his (PW2) wife. The appellant allegedly uttered unmentionable insults to PW2 and was to apologize and pay PW2 15,000/=. Against this background, it was important to examine the evidence of PW2 meticulously. The claim of PWl that she was raped is supported by PW2, who, the appellant charges should not have been relied on. What is the other evidence in support of PW2? There is the evidence of Det. Constable Michael (PW3) who testified that on 20.7.2000 he was informed by PW2 that PWl had been seen at the appellant's house. He accompanied PW 2 to the house where PWl was found with the appellant. Thereafter, the matter was taken to the Police Post at Puge. It is not shown where exactly was PW3 at the time PW2 informed him of the matter. Whether it was at the Police Post Puge or elsewhere it is not clear. As it is, as the appellant urges, the matter is open to suspicion that it was a pre-arranged plan to fix the appellant in which PW3 could well have been recruited. It raises doubts. There is yet another aspect of the matter. If according to PWl, the complainant, it was at about 7 p.m. when on 20/7/2000 she got into the house of the appellant for the first time, it is curious that shortly PW2 who was living at. Mirambo Itobo, 28 kilometers away from Puge, surfaced at the house in the company of PW3, the Police 11 Constable. Another curious aspect of the matter is that a civilian, one Revocatus who accompanied PW2 and PW3 to the house of the appellant was not called to testify in court. There is no reason given why he did not testify. In the absence of explanation how and where PW2 reported the matter to PW3, the appellant's claim that PWl, PW2 and PW3 conspired to fix him up may well be founded. It raises doubt against the prosecution case. Medical evidence was necessary to support PWl's claim that she had been raped. It was not enough for PW2 and PW3 to state that they found PWl in the house of the appellant. There is no medical evidence to show that rape had taken place although the learned judge says the medical examination indicated that PWl was two months pregnant at the time of the alleged rape. Even if it is taken that the judge was referring to the PF3 in which it would be shown what the doctor had found after examining her, the PF3 was . not tendered at the re-trial, subject of this appeal. The evidence of PWl and PW3 clearly shows that the PF3 was tendered in the previous trial. On the ·other hand, if the reference to medical '' , 12 examination related to the clinical card Exhibit P.1, this had nothing to do with the charge of rape. With respect, we think the learned judge misdirected himself Qn the medical evidence. In this light, in the absence of medical evidence, the charge of rape is based on the . bare word of the complainant (PW1) alone. On the other hand, we shall consider whether the appellant's claim that there was grudge between the appellant and PW2 was considered. At the trial the appellant raised and tendered the letter of agreement Exhibit D.1 in which the matter was settled before the Ward Executive Officer, Puge. The trial magistrate rejected it as an after thought. In the first appeal in the High Court it appears that the learned judge casually touched on the matter. The learned judge merely observed that the appellant had alleged in his defence that the evidence was concocted by PW2 who suspected the appellant of having an affair with his (PW2) wife. He also referred to the Exhibit D.1. However, the learned judge did not address the issue any more. - . V 13 We think, with respect, it was a serious misdirection on the part of the learned judge in not addressing the issue of the alleged grudge between PW2 and the appellant. The allegation was supported by evidence from the Ward Executive Officer, Puge in Exhibit D.1. Then the appellant had consistently raised it at the trial and on appeal before the learned judge. Furthermore, there is the serious issue that the appellant had expressed his apprehension that he had no confidence in the trial magistrate who he wanted to disqualify himself from hearing the case. On this, the appellant wrote a letter to the Resident Magistrate Incharge, Tabora. By letter of 6.6.2002 from the court of Resident Magistrate Tabora, Annexure "A" to the petition of appeal to the High Court, the appellant was advised to raise the issue in court. Above all the allegation that the appellant had filed his written defence is also a matter of great concern. If indeed that was so it is most curious that it is not shown on the record. Its absence from the record if at all, raises doubt. It is common knowledge that the Court normally goes by the record, but given the circumstances of this . J u 14 case, we think with respect, that had the learned judge on first appeal addressed and considered these· matters, some of which could well be true, very likely he would have come to the conclusion that there was still unresolved doubt in the case. It is a cardinal principle of criminal justice that doubts are to be resolved in favour of the accused. For the foregoing reasons, we are satisfied that in the totality of the circumstances of the case, the case against the appellant had not been proved beyond any reasonable doubt. Consequently, the appeal is allowed, conviction quashed and sentence set aside. The appellant is to be released forthwith from custody unless otherwise lawfully held. 15 th :DATED at MWANZA this 16 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.