hasani lisombe vs republic 2007 tzhc 159 7 august 2007

IN THE HIGH COURT OF TANZANIA AT MTWARA CRIMINAL APPEAL N0.94 OF 2006 ORIGINAL CRIMINAL CASE NO.69 OF 2006 FROM THE DISTRICT COURT OF MASASI HASANI LISOMBE.................. APPELLANT VERSUS THE REPUBLIC................. RESPONDENT DATE OF LAST ORDER - 9/7/2007 DATE OF JUDGMENT - 7/8/2007 JUDGMENT MJEMMAS. J. The appellant Hasani Lisombe was charged of rape contrary to section 130 and 131 of the Penal Code on the first count and abduction contrary to section 134 of the Penal Code in the second alternative count. He was found guilty of the offence of rape and sentenced to thirty years imprisonment. The trial court erroneously acquitted him on the alternative count of abduction. The appellant was dissatisfied and hence the present appeal. It was the case for the prosecution that on 14th day of March, 2006 at or about 13.00 hours at Chigugu village within Masasi District in Mtwara Region did unlawfully have carnal knowledge of one Mansafu Kassimu, a girl of thirteen (13) years old. In the alternative, the appellant did unlawfully take one Mansafu Kassimu a girl of thirteen (13) years old without the consent of her parents. PW.1 - Mansafu Kassimu testified that on 14/3/2006 at around 13.00 hours while going to school she met the accused/appellant. The appellant asked her to follow him to his house to collect clothes for her mother. She agreed and went with the appellant to his house where he raped her. While inside the house of the appellant the mother of PW.1 arrived and found PW.1 with the appellant. PW.1 said that she did not shout because the appellant threatened to kill her if she shouted. On examination by the court, she said that she felt pains around her private parts because it was her first time to have sexual intercourse. PW.2 testified that on 14/3/2006 she was informed by some school pupils that her daughter (PW.1) did not go to school but was seen with the appellant. She reported the matter to the Village Executive Officer. PW.2 and the Village Executive Officer went to the house of the appellant where they found him with the girl (PW.1). They took the accused and the girl to Ndanda Police station. Answering questions asked by the court, PW.2 said, I quote: 2 “We found the daughter to have no underpant and there were some wet substance under her vagina. She had some blood also around her private parts. We could not go to hospital on the same date but we went on the second day.” PW.3 - the Village Executive Officer testified that on 14/3/2006 at around 13.00 hours PW.2 arrived in his office and informed him that her daughter was locked in the house of the appellant. She asked for his assistance. They went together to the house of the appellant where they found PW.1. He arrested the appellant and took him to the Police station. PW.4 was Dr. Peter Nguyamu Shayo of Ndanda Hospital. He told the court that on 15/3/2006 while on duty he examined a girl called Mansafu Kassimu aged thirteen yeas old. The girl (PW.1) informed him that she had had sexual intercourse with a man several times before the day she was brought before him. He checked her private parts and found no bruises, no hymen and there were signs that she had sexual intercourse several times as compared to her age of 13 years old. He found no sperms in her vagina. 3 The accused person denied the charged and simply stated that he was arrested by militia when he was returning from his farm. The trial magistrate believed the evidence of PW.1, PW.2 and PW.3 and convicted the appellant/accused of rape as charged. He was of the opinion that the evidence against the appellant was watertight. At the hearing of this appeal the appellant appeared in person, unrepresented. He did not make any submission instead he said that he relied on his petition of appeal. He has raised about three grounds of appeal. The respondent - Republic was represented by Mr. Hyera, learned State Attorney. Mr. Hyera did not support the conviction of the appellant on the first count of rape. He, however, opined that the available evidence is sufficient to prove the offence of abduction. The learned State Attorney submitted that there is sufficient evidence to prove that the appellant was found with the victim (the girl) in his house. The learned State Attorney did not support the conviction of the appellant on the count of rape because of the 4 inconsistence or contradiction between the evidence of PW.1 and that of the Doctor - PW.4. It was the view of the learned State Attorney that if PW.1 was ravished as she claimed and if that was her first time then PW.4 could have seen or discovered that she was raped. He went on to argue/submit that under section 127(7) of the Evidence Act the evidence of the victim alone is sufficient to secure a conviction but under the circumstances of the present case it was important for the medical examination report to support what the victim said. On the alternative count of abduction the learned State Attorney was of the view that the girl, that is PW.1 did not go or enter the house of the appellant with her consent. The appellant tricked the girl to enter into his house so he is guilty of abduction of the girl. I have given serious consideration to the arguments raised by the learned State Attorney and those raised by the appellant through his petition of appeal. The case was essentially decided on credibility of witnesses. It is a settled principle that a trial court/Magistrate/Judge is in a better position to assess the demeanour of witnesses than an appeal court which normally deals with written record. In the case of OMARI AHMED V. REPUBLIC [1983] TLR 52 the Court of Appeal held that; 5 “the trial court’s finding as to credibility of witnesses is usually binding on an appeal court unless there are circumstances on an appeal court on the record which call for a reassessment of their credibility.” Likewise in the case of AUGUSTINO KAGANYA, ATHANAS NYAMOGA AND WILLIAM MWANYENJE V. REPUBLIC [1994] TLR 16 the same Court of Appeal held that: “(ii) As the decision regarding who attacked the deceased was wholly based on the credibility of the witnesses, it is the Trial Judge who saw and heard the prosecution and defence witnesses as they testified who is better placed that (sic) the appellate court to assess their credibility.” In the present case the trial Magistrate was impressed by the demeanour of PW.1, PW.2 and PW.3 and found them to be credible. I however, think that there is a need for reassessment of the credibility of those witnesses. First, as submitted by the learned State Attorney, PW.1 said that it was her first time to have sexual intercourse and that she felt pain in her private parts, and the same person told PW.4 that; “she had had sexual intercourse with a man several times before the day she was brought to him.” 6 The doctor, that is PW.4, checked her private parts and found that she had had sexual intercourse several times as compared to her age of 13 years old. I am not trying to say that because the girl had had sexual intercourse several times before then the appellant could not rape her but I’m trying to compare her two statements, one given to the court that it was her first time to have sexual intercourse and the one given to the Medical Officer (PW.4) - that she had had sexual intercourse several times. This shows that PW.1 did not tell the court the truth. Her statement to PW.4 was proved by the Doctor’s (PW.4) physical examination of her private parts. She is not a credible witness. The inconsistence in her evidence cannot be said to be a minor one, it goes to the root of the matter. The evidence of PW.2 is also questionable. She told the court, I quote; “we found the daughter to have no underpant and there were some wet substance around her vagina. She had some blood also around her private parts.” PW.4 who examined the victim told the court, I quote; “I checked her private parts and found to have no bruises, no hymen and there were sign that she had had sexual intercourse several times as compared to her age of 13 years old. I found no sperms in the vagina.” 7 The trial Magistrate did not consider or make a finding on the evidence of PW.4. It is my humble opinion that had he considered that evidence together with that f PW.2 and PW.1 he would have arrived at a different conclusion. Finally there is evidence of PW.3 who accompanied PW.2 to the house of the appellant. PW.3 evidence is to the effect that he went with PW.2 to the house of the appellant where they found the girl (PW.1). He asked the appellant as to what he was doing with the girl but he failed to give an explanation. PW.3 said also that they asked the girl who told them that she was raped by the appellant. However, PW.3 did not say all what was said by PW.2 that the girl had no underwear and that she had blood around her private parts. Another thing is that there is no explanation why the appellant was iaken to Ndanda Police Station the same day while the victim was sent to Ndanda Hospital the following day. Taking the whole evidence in toto I am of the opinion that it does not prove beyond reasonable doubt that the appellant raped the girl. He was found with the girl in his room but that by itself does not prove that he had sexual intercourse with her. I am aware that in sexual offences the ingredient of penetration however slight is enough to constitute the offence of rape but as I have said the evidence in this case is far away from convincing me that such a thing took place. I therefore agree with the learned State Attorney that the available evidence is insufficient to establish the offence of rape against the appellant. On the alternative count of abduction, the trial Magistrate after convicting the appellant on the first count of rape he proceeded to acquit the appellant on the alternative charge/count of abduction. That was wrong. In KISALU MTAKI v.R [1982] TLR.195 it was held that; “Where an accused has been charged in the alternative the court may enter a verdict on one of the alternative charges, and should not enter a verdict or finding on the other.” And in R.v. JOHN KATUA [1981] TLR.257 it was pointed out that; “An acquittal once recorded though erroneously, by a court of competent jurisdiction must remain a court order of acquittal unless and until it is set aside by a superior court.” Before the repeal of the Criminal Procedure Code and its replacement by the Criminal Procedure Act, 1985, the High Court had no power to convert such acquittal into a conviction in the exercise of its revisional powers. 9 However, under section 373(4) of the present Criminal Procedure Act, 1985 the High Curt can convert a finding of acquittal into one of conviction where it deems necessary so to do in the interest of justice. In arguing this case, the learned State Attorney invited this court to acquit the appellant on the charge of rape but find him guilty of the alternate charge/count of abduction. It was the view of the learned State Attorney that the appellant took the girl without her consent after cheating her that he was going to give her clothes for her mother. There is no dispute that the accused/appellant was found with the girl aged thirteen (13) years in his room. The question is did he abduct her? Section 134 of the Penal Code provides; “Any person who unlawfully takes an unmarried girl under the age of sixteen years out of the custody or protection of her parent or other person having lawful care or charge of her and against the will of the parent or of that person is guilty of an offence.” The charge sheet and testimony of the girl (PW.1) indicates that she was aged thirteen (13) years and her mother who appeared as PW.2 did not challenge that. Nor does the appellant. From the evidence of PW.1, it was alleged that the appellant met the girl who was going to school 10 (was in school uniform) and he told her to accompany him to his house to collect clothes to give to her mother. If that piece of evidence is believed then the appellant must be taken to have known, at the time of taking the girl, that she was under the lawful care or charge of her mother. In R.v. ABDUL [1971] HCD n.223 it was held that; “A guilty intent has to be proved. It is not enough to show that the accused did infact keep the girl away from the parents. The prosecution must also show that he intended to this.” In the present case and specifically on this aspect of taking the girl I have no reason to disbelieve PW.1 that she was induced by the appellant to go to his home, and she did go to the appellant’s nouse. Also the fact that PW.2 - mother of PW.1 reported the matter to the Village Executive Officer indicates that she did not consent for her daughter to be taken by the appellant. From the foregoing I find the accused guilty of the alternative count of abduction and convict him accordingly. The order of acquittal is hereby set aside and substituted by conviction. 11 The conviction on the first count of rape is quashed and sentence of thirty years imprisonment is set aside. This appeal therefore succeeds partly as shown herein above. The appellant is to serve eighteen (18) months imprisonment for the offence of abduction. Order accordingly. GIVEN AT MTWARA THIS 7th day of August, 2007. 12 Date: 7/8/2007 Coram: Hon. G.J.K. Mjemmas, J. Mr. M. Luena, State Attorney for the Republic Appellant - Present B/Clerk-V.L. Mineche Mr. Luena: This appeal is coming up today for judgment. Order: Judgment read over in court today 7th August, 2007 in the presence of the parties. 13