20071120 TZHC Bukoba

IN THE HIGH COURT OF TANZANIA ATBUKOBA APPELLATE JURISDICTION HIGH COURT CRIM. APP. NO. 6 OF 2005 (Arising from Bukoba District Court Crim. Case No. 257 of 2003 - before Ntumo, P.D. Esq. RM). PEDASON S/O KIIZA ..... ...... APPELLANT Versus THE D.P.P ... ••• .. RESPONDENT 25/07 & 09/11/07 Lyimo, J. JUDGMENT. The Appellant Pedason Kiiza and Perpetua d/ o Stephen were , jointly charged before the Bukoba District Court in Criminal Case No. 257 of 2003 w~th the Offence of Rape, contrary to Section 130 (and Section 131 of the Penal Code as repealed and replaced by Sections 5 (2) and 6 (1) of the Sexual Offences Special Provisions Act, No. 4 of 1998. The particulars of the Offence stated that the two accused persons, on 25 th October 2003 at Mushasha Village, Bukoba District, Kagera Region, jointly and together had sexual 1 ... .. . -----· - , ~J -- " intercourse with one Veronica d/o Mulengera, a girl aged 14 yrs, without her consent. In the second count, which was in the alternative, the second ., accused person, Perpetua d/ o Stephen was charged with the offence of Sexual Exploitation of Children, contrary to Section 138B (d) of the Sexual Offences Special Provisions Act, No. 4 of 1998. The particulars of the offence stated that Perpetua d/ o Stephen at Mushasha Village, took advantage of her influence as a Ward Executive Officer of Bugorora Ward to procure one Veronica d/o Mulengera, a girl of 14 years to have sexual intercourse, to wit; she was raped by one Pedason Kiiza. After a full trial, the 1st accused was convicted and sentenced to thirty (30) years imprisonment, while the second accused was acquitted for lack of sufficient evidence. In his appeal, the Appellant filed a total of nine (9) grounds of appeal, contesting his innocence. At the hearing of the appeal, Mr. A. Kabunga, learned defence counsel, strongly attacked the prosecution evidence, focussing on one major ground, i.e. the prosecution failed to prove its case to the required standard. And by way of supporting his submissions, he asserted that the whole prosecution case was a frame-up masterminded by the police in their endeavour to avoid prosecution for criminal assault on the second accused. Mr. Vitalis, learned state attorney who appeared for the Republic, declined to support the conviction of the appellant. He 2 submitted that there were many notable issues which the trial magistrate did not properly address his mind to. To begin with, let me make very general remarks in respect to the Charges. The Charge Sheet as drawn up was prepared without clarity and diligence or elegance. It was defective or bad in law. In the 1 st count, as long as the Statement of Offence asserted that Pedason and Perpetua jointly and together had sexual intercourse with Veronica, the proper section should have been one on gang rape and not otherwise. Similarly, the second count which was in the alternative to count one was defective, but as the second accused was acquitted, I will leave it at that. I will now examine the facts and evidence as given during the trial and thereafter to evaluate the same 1n the light of the submissions by counsel to the appellant. The complainant, one Veronica Mulengera - Pwl, testified that during the time of the incident, she was staying with her mother at Bulembo, Kyak:a ward. She was then aged. 16years when giving her evidence. She informed the trial court that on 24/ / 10/2003 she left her home and went to pay a visit to her brother, one Barenga Mulengera, then staying at Kabambiro Village. That after leaving her home, she arrived at her brother's home at around 11. 00a.m. As she was feeling hungry, her brother took her to Bugorora Centre where they 3 took a meal and from there, they moved to a nearby bar to get some drinks. They entered a bar operated by orie Thereza Buchard, who testified as Pw3. Her brother bought a bottle of "Rubisi" and when he was so drinking, the 2 nd accused entered the bar in the company of the 1 st accused. The two accused had come in a motor vehicle. According to Pwl, the two accused ordered some beers and as they were drinking, the 2 nd accused called Pwl. She went on to inform the court that, and I quote:- "The second accused called me. My brother told me never to respond. The 2nd accused fumed. She wore a hat I was wearing (sic) and threw it away. She asked for an identity card. She. introduced herself as an A.fisa Mtendaji {Executive Officer), I replied that does a young person walk with an identity card?"... End of quote. The above quotation marks the beginning of what would befall both the - complainant and her brother, Pwl and Pw2 respectively .. To keep her testimony brief, Pwl narrated to the court how they were arrested, that her brother had his limbs tied with ropes at the orders of the 2 nd accused, placed in a motor vehicle driven by _the 1 st accused and were sent to Kyaka Police Station. Further that when they arrived at the Police Station, her brother Pw2 was dumped at the station, limbs tied, and after altercations with the police officers, 2nd accused went back to the vehicle, and they together with one of the militias drove to Kemondo. At pg. 9 of the typed 4 proceedings, Pw 1 narrated the ordeal which befell her. She testified thus:- "The driver drove to Kemondo where_ he stopped. The 2 nd accused pulled me down. She bit me. The driver dropped as well. She forced me to lay with the 1st accused. '[he driver bit me with a 'ngwara' (sic). She unwore (sic) my underpants and skirt. Second accused put her hands on my mouth. I had forceful sexual intercourse with the 1st accused. I did feel pains ... " (End of quote). Pwl went to testify that after the rape, the accused persons and the militia left in their car, leaving her alone. She dressed up and walked up to her village. Further that as it was night time, she spent that night at her uncle's home, one Khatibu Issa.· She reported to him on her being raped. She was given some tea and on the fallowing morning, she was taken to her mother. Pwl was subsequently taken to the Police at Kyaka where she was issued with a PF3 for medical examination. Pwl then tendered PF3 as exhibit Pl. Pwl was sent to Bunazi Health Centre for treatment. Under cross-examination, Pwl stated that the rape incident took pl~ce at night, and that the militia man was inside the motor vehicle, just looking on. On his part, Barenga Mulengera testified as Pw2. His testimoi::i-y does not differ much with that of Pwl from the time they met at around 11.00a.m. up to the time he was dumped at Kyaka Police Station, limbs tied. He takes the story further. He stated in court that after the motor vehicle driven by 1st 5 accused ar:r~ived at the Station, he was h·urled but, dumped at the station and that the 2 nd accused told the Police never to release him (Pw2), for if they did, she would report them to one Kiwelu, the RC as they were rife with bribes. That the 2 nd accused did not record a statement ~s to why she had arrested him. Further that he was left at the station, while the 2 nd accused went back to the vehicle and drove away. Pw2 then spent the night at the Station until the next morning when he as released. He went to visit his mother, only to find her crying because Pw 1 reported to have been raped. Pw3 Theresa Burchard, testified to the effect that she operates a bar at Bugorora area. On the material date, Pwl ana. Pw2 came to her bar and she served them drinks. Later,. the 1st and 2 nd accused also arrived· and they brought drinks. In the course of attending to her customers, she saw the 2 nd accused ordering the arrest of Pwl and Pw2 as they could be criminals. According to Pw3, the 2 nd accused sent one of the militia to buy a rope which was used to tie up Pw2. They were taken away, and that other customers present saw the arrest of the two persons. Pw4 Khati bu Issa gave evidence that he lived at Bulembo. He is the uncle to Pwl. He testified that on 25/10/2003 at around 1.00 a.m. while home asleep, he was awakened by his wife as there was someone knocking on his door. He opened 6 . the door and met Pwl his niece, saw blood on her legs, her clothes torn, including her underskirt. Pwl reported to Pw4 as follows:- 'That they were coming from Kanyigo, Pw2 entered a bar, her had worn by a certain mother (sic), Barenga and her taken to the Police, leaving Pw2 there and she was raped by a driver (1 st accused?) My wife cooked her tea, she also cheeked her private parts, she said she had sexual intercourse. Next day I took Pw 1 to my sister, one Karolina John ... ' (End of quote). The fifth witness for the prosecution was PwS, one No. E.8785 . D / Cpl. Daudi, a CID officer from Kyaka station. His eyidence can be divided into three parts. The first part is in respect to the time Pw2 was dumped al the Police station up to the time the 2 nd accused left the Police Station. It includes the period when PwS interrogated Pw2 about his arrest by the second accused. The second aspect touches on his evidence regarding what transpired on the next day, after he had discharged Pw2. The third and last aspect is about his evidence on what he uncovered during the investigations. To start with, PwS gave evidence to the effect that on 24/10/2003, he reported on duty and went to the Charge Room Office. He stated that during the night, the 2 nd accused and another person he could not identify brought in Pw2 in a vehicle Reg. No. TZS 1357. Pw2 had his limbs tied up. He 7 .! untied_Pw2 and asked the 2 nd accused what the problem was, and that the 2 nd accused told him she had brought a person who had destroyed a school. Further that Pw2 should not be released and· that the 2 nd accused alleged before him that the Police were corrupt otherwis~ he (Pw2) could be taken to Kiwelu (RC). According to PwS, the 2 nd accused forcibly took from him a piece of paper- he was writing on, and as a result, chaos developed, and the 2 nd accused was taken out of the room. After the 2 nd accused had been removed from the room, Pw5 asserted that he questioned Pw2 about his arrest. At pg. 15 of the typed proceedings he said and I quote:- "I interrogated him. He said his young sister had gone in the vehicle. I went out. The vehicle was not there. Pw2 stated he was arrested while coming from Kanyigo. He was arrested because Pw2 did not want Pw 1 to talk to the 1 st accused. He said that the 1 st accused wanted to make love affairs with Pw 1, and that he was taken to Police so that the wish could be fulfilled. I informed the OCS who was told that Pw2 ad not made anything wrong/ bad. Next day we went with Pw2 making follow-up where Pwl was ... " (End of quote). The last aspect of his evidence was in respect to the follow-up of the whole case. He testified that Pwl's mother informed him that Pw 1 had been raped at Kemondo and that at the time he was interrogating Pwl 's mother, Pwl had gone to report the same to the village executive office. He went to the VEO and on the way, he met with Pwl who then narrated the whole story 8 (__ '•· '. ..,.· .. ' - to him. He then proceeded to arrest the 1 st accused, but could not trace the 2 nd accused who had 'allegedly escaped to Bukoba. The last prosecution witness was Pw6, Karolina Mulengera, mother of Pwl. Pw6 gave evidence to the effect that Pw 1 left her home at 8. 00 a.m. on 24 / 10 / 2003 to visit her brother at Kiziba. She did not return home. That she was with Barenga Murenga. Further, that when she returned, she was with Khatibu Issa. She also stated that Pw 1 had left her uncle at Kyaka Police station and that she was in bad condition. That Pwl told her that she had ) been raped by a certain man, a driver, who was with a WEO. That she did not know the WEO nor the driver and she advised Pwl not to wash her pants. As they were talking, the Police arrived and thereafter they took Pwl to Bunazi Hospital. At one point, the trial court observed that. Pw6 was contradictory. But, as it will later appear in this judgment, her evidence casts doubts on the conduct of Pw2 and to some extent, on the evidence of PwS. I will revert to this aspect later in the course of the judgment. After the close of the case for the prosecution, the accused persons were put . to their defences. They both gave sworn evidence. The Appellant denied to have raped the complainant. He gave evidence as Dwl and briefly stated that on 24/10/2003, as a 9 driver, he was with his in_ charge, inspecting the Mutukula - Bukoba Road. When they arrived at Kyaka, they met the 2 nd accused. He was then instructed to go to Kyaka Police where, after they reached the station, 2 nd accused went to talk to the OCS and after a short while, she returned. As th_e m/vehicle did not have enough fuel, they went back to the Office to refuel and back to Kyaka presumably to pick up the 2 nd accused. From Kyaka, they moved to Kashasha and then took the second accused home (to Bugorora). From Bugorora, the 2 nd accused had a criminal (Pw2?) and they had to go back to Kyaka. Upon arriving at Kyaka, 2 nd accused was beaten and thereafter, he took 2 nd accused to Bugorora, and later to Kashasha to park the vehicle. He was arrested the next day. On· the other hand, the 2 nd accused gave her testimony as Dw2. She informed the court that prior to the date of the incident, on 16 / 10 / 2003, she had taken two suspects to Kyaka Police Station. That the suspected criminals were released but the militia men who were with her had remained in custody ever since. Those were Fatudatus Felician and Ibrahim. That on 24/10/2003, she made a follow-up at the police where she stayed up to 3.00 p.m. and that when the OCS arrived, she requested that those men be released on bail. She then left for home. That upon arriving home, she met another suspect accused of theft, and she had to send the suspect to Kyaka Police, arriving there at 7.00 p.m. At pg 21 of the proceedings, Dw2 states and I quote:- "There were four (4) Policemen who retorted to me that I had gone there with 'kiherehere' to sue them to Ward Executive Officer. That was one Innocent. He beat me up with one 'afande' Daudi. I have PF3 to that effect. I tender the same P.P. No Objection, however, it indicates it was by Police ... " (End of quote) The remaining part of her evidence relates to how after being beaten, she was assisted into the motor vehicle by the militia, and sent home. The following day, the Police refused to issue her with a PF3, whereby she had to go to Bukoba to complain to the authorities and finally issued with a PF3, which was admitted as Exh. D 1. In its judgment, the trial court convicted the appellant based on the weakness of the defence and without properly analysing the evidence and the facts before it. The learned trial Magistrate believed Pwl to be a witness of truth and that Pw2 had corroborated her evidence. The remaining witnesses were of no material assistance to him. At the beginning of this Judgment I pointed out that the appellant asserted that the prosecution did not prove its case, and that at any rate, it was a police frame up. Perhaps it will 11 t be of useful purpose to reproduce the Doctor's_ findings on PF3 - exh. D1 issued to the 2 nd accused. From the record of proceedings reproduced above, the prosecution did not object to the tendering of the same. Even if they had attempted to do so, it would have been ridiculous for the trial court not to admit it. It was issued on 25/10/2003 and reads: "Beaten by the Police: ⇒ Findings: Bruises and septic wounds on the face left side . ... on the orbital of the eye; ⇒ Fracture of the mandible, left side. Seen on the Dental Unit - Major surgical surgery? ·The judgment of the trial court is silent on the PF3 - Exhibit D 1. which was issued to the 2 nd accused by Buko ba Government Hospital. From the endorsement, there can be no doubt that the 2 nd accused had sustained serious injuries. As the report shows, she had her left upper jaw fractured. That being the position, one wonders whether in that state of injury, the 2 nd accused would still be in a position to do what Pwlalleges. Secondly, in my earlier remarks, I did mention that the charges were defective. From the evidence and facts on record, PWl testified that she was taken from Bugorora to Kyaka Police Station and from there to Kemondo where she was raped by the appellant being assisted by the 2nd accused. The evidence adduced by Pwl and Pw2 does not accord with the Charge laid at the door of the appellant. The Charge Sheet 12 ./'I - - ••• 1 ·; ·- asserted that PWl was raped at Mushasha village in Bukoba District. The evidence adduced is at variance with the charges preferred. It will be recalled that Pw4 the uncle, testified that Pwl knocked at his house on around 1.00.am. on 25 / 10 / 2003 and reported to have been raped. If the evidence of Pwl is anything to go by, then it is will be seen that Pw4 lives in the vicinity of the area where Pwl was raped. Kemondo and Kyaka are eighty kilometres (80) apart. None of the witnesses were called upon to elaborate on the various places mentioned at the trial. It was not indicated how far Bulembo is from Kashasha or Mushasha. Similarly the distance from Bulembo (home to Pwl, Pw2 and Pw4) to Kyaka was not given in evidence. Mr. A. Kabunga learned defence counsel, strongly attacked that aspect of the evidence and submitted that had the trial magistrate carefully examined that evidence, he would not have failed to observe that the evidence by Pwl was suspect. He submitted that if indeed Pwl had been raped at Kemondo, the logical move would have been for her to report to Buko ba Police Station rather than walk to Kyaka Police to report the same. The second aspect of the evidence by the prosecution (Pw2 and Pw5) which supported Dwl and Dw2 was in respect to the assault of Dw2 by the police. I have already reproduced the contents of Ex. D 1. I have also shown that the learned trial magistrate did not at all consider it. As rightly pointed out by 13 the learned state attorney, this was one area which the trial magistrate avoided to consider. In his 0wn words, this ·aspect was not material to the determination of the case before him. · The trial magistrate had therefore deliberately refused to analyse the whole evidence before him. At page 2, last paragraph of the Judgment he had this to say, and I quote:- " 1 st accused in his attempt to defend himself, he was trying to avoid the fats as had been narrated by the prosecution side. There is nowhere in his defence where he shook the fact that he left Kyaka Po1ice Station accompanied with Pwl One (sic). This fact not being tested, the 1 st accused was left with one thing that is to prove that the raping was done by another person apart from him. Or in the alternative, that he safely delivered Pw 1 at some place after leaving . Ky aka Police Station. Such a proof would have relieved him of any liability to the offence as charged. 1st accused failed even to bring the said "boss" who was commanding him on where to go and · whom to carry in the vehicle. If this "boss" was brought as a· witness and testified that Pw 1 was not carried in the vehicle, or that she was carried but stopped at some place while she was physically fit; that would have relieve 1 st accused from liability." (End of quote). The above passage from the record of the trial court clearly shows that the trial magistrate was shifting the burden of proof onto the appellant. The appellant was being required to prove his innocence. Perhaps it may serve us useful purpose if I reproduce again that crucial aspect of the evidence by the appellant himself. At pg. 19 of the typed proceedings, this is what the appellant said: 14 •. . >JJfl "2 nd accused had a criminal. My boss ordered me to take the 2 nd accused and criminal to Kyaka Police. 2 nd accused was beaten. I told 2 nd accused to go but she refused. Later complied. I took her to Bugorora. I then parked my vehicle at Kashasha Camp. Next day I was arrested, I was told that I had raped.'' (End of quote). At pg. 21 of the same script, last but second paragraph the 2 nd accused testified that after she was beaten and injured, the. militia man carried her to the vehicle and the driver took her to Bunazi Dispensary. 2 nd Accused refused and she was sent to her home Bugorora. It therefore defies any logic, why the learned trial magistrate decided to close his judicial eyes to the glaring evidence which tended to exhonerate the appellant. In my judgment I have made reference to the evidence of Pw6 in respect to the movements of Pw2, PwS and Pwl. When giving evidence, Pw6 stated that. while she was talking to Pwl, the Police arrived and thereafter took Pw 1 to Bunazi Hospital. The police officer - PwS himself stated that when he arrived at the house of Pw6, he was informed that the complainant (Pwl) had gone to the VEO. The logical interpretation of that evidence is that both Pw2 and PwS went out to trace Pwl when she herself had not reported the alleged rape to the police, a matter which is out of the ordinary. It was contended during the hearing of the appeal that fallowing the assault of Dw2, the Police set up an inquiry team to probe the incident. That the Appellant was implicated with 15 the rape charges so that he may not be available during police investigations regarding their assault on Dw2. There is no evidence upon which this Court could rely on to support that serious allegation. The Appellant was arrested immediately the following day (25/10/2003) and after spending some time in remand custody, he was rele.ased on bail. The 2 nd accused was arrested at Bukoba Government Hospital and joined to the charges on 28 th November 2003. The evidence given by the 2 nd accused, supported by Exh. Dl, proves that after the 2nd accused was beaten by the Police, she had travel to Bukoba for assistance and treatment. The statement by PwS that the 2 nd accused had escaped to Bukoba cannot be true. As rightly pointed out by the state attorney, there were several notable issues which the trial magistrate failed to consider. It is a trite principle of law that in all criminal cases,_ any doubt which. eX1sts in the prosecution case has to be resolved to the be!].efit of the accused person. For the foregoing, the conviction of the appellant is quashed, sentence set aside. The appeal is allowed in its entirety. Judgment delivered in the presence of Appellant and Mr. Kweka State Attorney for Republic. 16 .. ,r ~ . .;,•· .·,,:, ,· ~-.,·:~~::._.~-.:·:::t~- ·~ -~;.,. ~ ~ ,;,. . . fa : . .: ~ ·~· ..."it' .. ,.. ,•:• .... Right of Appeal Explained. 20/11/2007 17