20081203 TZCA Dodoma

IN THE COUR.T OF APPEAL OF TANZANIA . ~ /\\ s-._, Ar DODOMA ~, {CORAM: RUTAKANGWA, J.A., KIMARO, J.;.\., And MBAROUK, J.A.} CRIMINAL APPEAL ·',. NO. 24 OF 2007 ' !. MKUMBO HAMISI ...... 1!1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .- • • • t..••••v••"·············-·· APPEL~NT VERSUS TH!.;' RE'PUBUC ••••••••••••"••••••••w• . •••••~••••••••••••• .. •~'!!'to:--r:13,g~-5,aD ■• ■•• RESPONDENT ·tAppeaJfroifrlfie ·aecisfo-n··ortfie High Court ofTarizanfa·· . -· ·-·-·- at Dodoma} (Masanche,·J.} . . dated the 4H1 day of December, 2006 in Cdminal Appeal No. 73 of 2006 JUDGMENT OF THE COURT 2 & 4 December, 2008 M8AROUl(. J.A.: In Crimir.Jl Case No. 32 of z006 in ril2 District Court of Iramba at ( I' Kiorntx)i, the app.:;!!arit Mkumoo Hamis was amvicted of the offence of \: rape contrary to section 130 (1)(2)(e) and 131 (1) of the Penal Code as arrero~ by tt-€. Sexual Offenres (Special Provisions) Act No. 4 of 1998; He was ~tence:1 to thirty years imprisonment and twelve strokes corJX)ral punishment Also he was ordered to pay 100,000/·· coml)2nSation to PW1 for tfx~ haiaSSm2flt she got He was aggrieved by the conviction and I I' I • . l . sentence and. appealed· at. the High I Court. Masanche, J.. dismissed his • • • \ • I a()IEI. .Still not S::ltisfied, he has ~led this serond ap(XEI. \, I ·I i . The ap~llant has filed. a\ lengthy eight grounds memorandum of • • \ •• I • appeal which can conveniently re reduced to seven grounds: ............... - . - -·-·· ·······-· •· ··--•·.·-···-~,'1.'· ._. .. ··••····...\•· ......... _. ____ .............--·--·--·.·-•"•··· ···-· .. ·-· --···· --·-· -··•·· \ 1. ThaC the trial magistrate and the 1st appellate · I . court grossly erred\ in law and facts after /---;-\ (,j working upoi, the rvidence of which · Pwj ~ does not suffice the ~ . I court to rule out .that - P.Wl was ·doing sexpal intercourse with the I appellant.. . \ 2. .ThaC the trial magiJfte and the 1st appellate · court erred in a/lowin} the prosecution not to . . . I. . summon a .ten cell. /eider I . {Issa. Kikasi}instead I, they called PW2. ·\ . . .- \ ' I . . st 3. That/the trial magistrare~and the 1 appellate court grossly erred i/4 law and facts after . . I . ~~ . . 1inposin{h severe sentence . to the appellant I while the conviction fell under the : lesser · offence of abduction anif not rape. . I .. · 4. That, the trial court-and 1st appellate court . I . . . . grossly erred in law and facts for convicting the appellant without complying with the I· mandatory requirement provided under section 312 (2) of CPA.,, cap.20 (R.£ 2002). · . - ~: . - - ····--·-····-· ..... ·-·-. - ... ~ 5. That, PF3 has not shown the evidence that penis ·penetrated {nto the vagina. Also a . ' doctor was ·not called to testify at the trial · court contrary to sfktion 240 (3) of the CP.A. . . . st __6.___ That, the trial couft and 1 appellate court '· erred in _law .and (acts after admitting and wor1<rn9 tIJ3on·· tne evidence of Jrwf "iind15W2 . I - - without considering (he failure to produce the sketch map to shbw where did the two . . persons met and had, sexual intercourse. I 7. That the trial court and 1st appellate court 1 seriously · erred in taw and facts without I ' considering the apf)f]llaht~ defence at the trial . ' We have opted to give a brief account of the case which was before the trial couttbefore we diSOJSS the J:X)ints raised in the rranorandum of appeal. On 14.3.2000 at 1.00 p~m., PW1 Sarah d/o Daniel was tending cattle with PW2 Petro Amosi. PWl went to the river to pick firewcxx:f. She saw the aJ)P2llant walking towards her. PW1 left the river and \.\t'eOt tu her cattle . ----- _...; _________ .. __ . - - r - • - - · ---------------·~---~----:-,- ---:--:---·--. - . 4: ---- ""'' . . The a~llant followed PW1 and told re-. 'lea ni lea'. PWl asked the ap,:ellantwhy he was making that remark. The a~llant replied that he has be:rl. seiucing her but PWl was refusing.·· The appellant then kicked PWl's ( '' ·~- legs using his feet and PW.l fell down.· He lied on top of PWl and tore S· rer "y urK.!e~~,._!:_!n_~~~ his tro~ and took his penis and insertro into PWl's vagina and the penis penetratro. PW1 ._ ' . : . shouted . ., . and . PW2 .Petro Amosi . . . who ._. . ,. ,.: ,. . was tending his rattle 20 paces from PWl heard the cries and ~w what the al)J:ellant did to .PWl.. At tre scene,. PVv2 found the appellant lying in b2tvveai PVvl'S thighs. PW2 f l ~ the appellant on his back who then woke up and PWl ran away. PWl and PW2 drove their cattle home ard went to repJrt to the ten CEIi leaca- and later tn the police post, where she was isst£d with PF3 and· sent to tl'e t-ospital. The PF3 ..terleroo and admitted as Exhibit Pl showed that PVvl sustained bruises and mild .. swelling on her private parts. Thereaf:ler", the appellant was arreste:I ard accordingly diarged. In this apt:eal, just like in the1courts below, the appellant was I . I unrepre92flted. The respondait Republic _was representEd by Ms. Neema ·.:· .-f: ' .....___ ,_ -. - · .·--- .-·-· - ~ - . ----.---.--··--------. !. ____________________________________ . · ___ .------------------·· j Mwanda, leam:rl State Atto_mey. I At the.rearing the a~llant had 11Qthing to submit afx}rt from what he statro in his rrtaJ10@ndum of app:El·undi:rstandably so bera~:J,e was a lay ! I I I I I On tl2r part, Ms. MvVanda, from tiJe:out set SUPJ:X)rtEd the conviction ! · and senta"lCE imposro upon by tre trial dourt to the aP,:ellant The_ learrro . : .' I' State Attorney vehemently urQOO us to C9f1Sider all the grounds as ~less ,.;·· 1 ('~ with the exaµion of the 5th ground: of apµ:EI conrerning tie. non - q:>mpliance ~ith section 240 (3) of.too cdm1nal Procedure t\ct (CPA). In h e r ~ to the first ground of ap~I, Ms. Mwanda submitted that the record clearly shows that the ap,:ellant did the act of rape at day time. She said that, the appellant was clearly identified by PW1 and PW2. Both witnesses (PW1 and PW2) testified to the effect that they knew the a~llant refore,, as· they vvere living in the same village. ~:i's. Mwanda · , ;( further submitted that the evidern:e of PWl and. PW2 was water-tight to \\ii i) . . . ,~; (:, enable the offence against the aPr)=llant to have been proved beyond rea&)nable doubt. As per the rerord, Ms. Mwanda added that, PW1 narrated ~. tt,e.. whole story when tte api:x=llant followed hert~icked and fell her down, _Jiecton top .of her and inserted his .penis into her (PWl's) vagina. The learned State .. . - Attorney furthennore •.. . .. submitted that .. - . . .. - . . ' : •.. PW1 . .. '· .. was found ' . . •, ~ .. to be a. . .. truthful witness by the trial court PW2 corroborata:J the evidence of PW1, sre said. After being satisfied, the trial court aanrdingly found ttY= apt:ellant guilty as··chafgro ·Ms. Mwarx:la ac:Jdro. Henm, sr.e urgej us to find r, the 1st grourd of a~I baseless and without rrerit · On our part, as urgej by the learned State Attorney we find the 1st ground of appeal without merit. We have arrived to that conclusion after having a 7 considered opinion that, the act of ra~ h a ~ during day time and there .. was no question of mistaken identity., Bearing in mind that, the two courts I . I . telow have ·reached to the decision of convicting the ap~llant after the analysis of the facts, we find no· Justification for ·interfering with tte _f()ncurrent findings of the two Jow~r courts.,:, We find no merit in the - ---- - ---------------------·----- -- --·--r. ------- ----------------------·--·-· -- ______ ,___ .. ___ ··- . ap,:ellants' complaintas found in his 1~ ground of aPPffil. I nd As to the 2 ground of api:x=al, Ms.: Mwanda agreed that, it was true that· . . I . . '!,. ~. I a ten cell leader (Issa Kikasi) was n0t called to testify at the trial court ·• I - - However, we-think, the learned State Attorney correctly submitted that not . I caUina a ten ......,.•· . ..., ·. 'cell leader to testify did oot affect .tte .••... ,. .,•. __ .._,._,·.,.•·.·• ..· .. , ··: ....... ,•..•. , .... ,........ 1,·· ..... ..... .. ,... prosecution case. This. is . ..... - ...... , ....... , .... ·. . . • I . . . becat.re he was not an eye witness at the scere of the crirne. She said .the evidence of a ten cell leader would ha~ had no value rom):xlred to that of PWl and PW2 who actually wit:neSsaj the act of ra~. Hence the ~tion side cannot re faulted she said. On our part, we totally agree witp the lea~ State Attorney that the pra:rort:ion side at the trial court cannot;re faulted for not calli9g the ten cell 'h leader (lss:l Kikasi} This is because, the evidence of PWl and PW2 was sufficient to prove the offence against the appellant as charga:f. Hence we · find the t)d ground of app:EI with no rrerit. Without labouring ou~.l_yes ·to go to a thorough analysis of eadl ,, grouf?ci, like ground numrer;. three, four, six and seven, we find them with no rrerit as urged by the learra:I StatE Attome,,. This is beca~ we have found them to have teen fully complied with by the trial court For example ~ ground three, aflEr the offence of ra~ has l:m1 proved we=':~ink, the . _ . __sentax:eJmpi:~:Lwas_Jegal. As for ground four we are of the opinion that mion 312(2). of the CPA has teen fully complied with as shown in the • • • •• • •• , · . -✓ ., • • • •• ••• • ••• . . record. As for ground six, we.are of the opinion that there was no nre:J for the production -of a sketch map of the· scere of. the crime. Concerning. ground severl, the records are clear that the trial Principal District Magistrate fully considered tj,e a~llant's defence in his judgment. Hence gereally, we have find grounds No. 3, 4; 5, and 7with no merit after having i:re1 fully -.,·/ complied with by the trial court .. JV The only ground which has remained is ground of app::al No. 5 concerning t:t:-e non compliance with ~ion I . 240(3) of the C.P.A. Ms I Mwanda herself conceded that the act" of T;lot ralling a doctor to testify on the PF3 which he wrote was contrary to SEktion 240(3) of the C.P.A. She prayed for tl1e evi~ of PF3 to be discounted. To which we accordingly ... -·- ·······- - - -•-. - ---- ------···-····-·"- ··-·-------------•·-- --·· --- - -----i-----, .. - ---····- ·-------------- -·-··· ------·-- ----------- -- ·----- -- ·-- --·-· ..... do so. She then referred us to the decision of this Court in Nyambura ; I ."' Kamaoga V.R., Criminal Appeal No. Qof 2003 (unreported). ' ,~----.~-- c-After- having-discountai the evidence found in PF3 we have been left . ! .• with evidence of PW1 and PW2. However, as we have already. found· ttere • .. - · .. , · ' ' • " · ·..• ',i ·•,, •·, • II•• ·,; • •·•· •••.,, • ,t.•-.O • ' ... • ' • , ,• ·.-•· •T• . . \·. ,,' · ·••~·-•, .•; :: : ., , , .. ! . ' is no justification for the interference o~ the_ roncurrent findings off-acts of the courts below. Hence we aufumatidJlly find the evidence of PWl and -pv.J2 credible as found by the trial court and ·confinned by the High Court I In addition to our findings, this Court elaborata:I further on this position in . I the case of Selemani Makumba Vr- R~1 Crim,nal Appeal No. 94 of 1999 ! (unreJX)rted), where its was stated that \. I '~ medical report or the evidence of a doctor may help to show that there was sexual intercourse but it .does not prove that there was rape, that is non consented sex, even if bruises are observed in the female sexual organ. True evidence of rape has to -~ome-··fronr·-the-··victim;·ifc1n-adult,--thf:l~--·-·-·---- ·--- ··· ··· ······-- ··· there !'Vas penetration ;Jnd no consent, and i(I case of any.other woman consent is irrelevant, that there was penetration." (Emphasis added). In ~ instant c:cre, PW1 testified to the effect that the al)P=llant i~rtEd his i:aiis intn her vagina without her consent That evidence of PW1 has f:x:efl acc:eptffj by both lower courts that it has proved~ offence of rar:e. Hence, we are of the opinion that; even if the evidence contained in PF3 tias be=n discounted, the evidence of PWl and PW2 suffices to prove the offence against the aJ)l:X:!lla.nt For the foregoing re.asons,·after having found overwhelming evidence ' ' cg:iinst the a~llant, we have found no reason to foult the decisions of the .. . \ . . . ' ; 12 I • i . ' ' . i no reason to fault the dedsfons of the two courts below. We find· no merit in this appeal. We accordingly dismiss the appeal in its entirety. E. M. K RUTAKANGWA \ JUstlCE OF AP.PEAL . j .n··· \\;:, \" i [1 I\ \ ... I .• • 11 ,I I N.1P. KIMARO . . I.. . ... i . - JUSTICE OF APPEAL M.S. MBAROUK . . . . i' - . • .•• ·• . JUSTICE OF APPEAL I I certffy that this is a 1true copy of the bri.ginal. 1 , I .. '\ \