20080609 TZCA Mtwara

-fl IN THE HIGH COURT OF TANZANIA ATMTWARA CRIMINAL APPEAL. NO. 145 OF 2005 Orig/nal Nach/ngwea D&r/ct Court Ct/rn/hal Case No. 38 of 2004) JOHN GOMEA .................................................. APPELLANT Versus THE REPUBLIC .................................. ........... RESPONDENT 27/5/2008 & 9/6/2008 JUDGMENT RWEYEMAMU, J. The appellant John Gomea was charged with Rape c/s 130 (e) and 131 of the Penal Code as amended by Act 4 of 1998 (famously known by its acronym -SOSPA). He was tried, convicted and sentenced to; serve 30 years imprisonment; suffer 12 strokes of the cane and pay shs.500.000/=compensation to the victim shOrtly after his release from prison. Dissatisfied, he filed a Memorandum of Appeal (MA) with 10 grounds and therein expressed his wish not to appear for hearing of the appeal. rt The evidence adduced at trial was brief: Theroseution called three witnesses among them Pw' Zena d/o Bakari, and Pw2 Felista Dastani, alleged victims of the crime, both said to have been 15 year old pupils at a village primary school. According to Pw' - the two were in a shamba on 23/3/2004. They were with her father who later left. Shortly after the appellant came and enquired, Who was felista? Then he told them they should collect spinach for him as he had given shs. 300/= to her father, as they were doing that he claimed they had stolen his shs. 500/=, then he enquired of them "nani amebaiehe hapa"He then took them to a nearby bush, covered their faces With cloths, .nd the witness proceeds; he then fled us.on the ground and raped us. He threatened us with knife. He first raped me -later raped my feiow' The appellant left thereafter. She proceeded to testify that 'they then returhed home and reported to their father' "our father reported the incident. We were taken to police station. We were issued a PF3' When Pw' was re-examined by the prosecution she stated that "the accused was arrested the P day after the incident over allegations of radio theft. When we saw the suspect and recognized that he is the one who raped us. We thus told our fathet" The version of the other victim Pw2 was as follows; that after the appellant arrived in the shamba and made the stolen money allegation, he undressed them claiming to be searching for his stolen money, then he said because they had stolen his money they should choose either to be killed or raped, he covered their faces but raped Oj Pw' only. She testified that after the appellant asked 'an/ ameba/ehe' he covered their faces with their clOthes and proceeded to rape Pw', in the meantime threatening to kill them if they shouted. Pw 21S version regarding what happened thereafter like that of Pw' was not very coherent. She testified that on reaching home she reported to her mother, but she went on to testify that "we later went to the ward executive while with our father Zena was issued PF3 and when checked she was found she was raped On 25/3 the accused was arrested for theft that was when they identified him. Under cross examination she said there were 3 people in the shamba. Pw3 the father of Pw' —Zena, testified that when his daughter returned from the shamba she told him that a man whose face she marked had raped her. That he reported the incident.to the Village Executive Officer (VEO) was given PF 3 and took her to the dispensary. That on 25th, the appellant was at the VEO office where he had been arrested following a theft incident. BOth Pw' and Pw 2 identified him. That the appellant denied the allegation, and he reported the matter to the police, got a PF 3 then took his daughter to Nachingwea hospital for examination. In his defence, the accused/appellant admitted to have been arrested for theft of the radio, but stated that after failing to get the radio, the Ward Executive decided that they should connect him with a rape charge. n 14, In his MA, the appellant submits that the said evidence was insufficient to find conviction. Ms Shio.state attorney, who appeared for the republic on appeal, agrees. She dedines to support conviction and submits that; there were material contradictions between evidence of Pw' and Pw2 , according to the former, they were both raped but the latter testified to the contrary. She submits further that the story that one girl was raped as the other waited, (if one goes by Pw'S' version) is difficult to believe. And that the medical examination on Pw' conducted on the 25th, is no conclusive proof that bruises found on her were from the incident of 23rd I agree with the submissions of both parties in this case that the charge was not proved mainly for two reasOns. First, it is true the evidence of the two key witnesses Pw' and Pw 2 was contradictory and inconsistent. It was contradictory regarding the fäctof rape, it is not known from such evidence whether the appellant raped one of them or both. The evidence was also inconsistent and incoherent as regards what happened after the alleged rape. Did the girls go home and report to Pw"S father and the latter to VEO, did they report to PW 21S mother, or was the report made after the appellant was arrested in respect of the theft. Whenever there are such contradictions and inconsistencies, the court is required to address that aspect in evaluating the evidence as held by the CAT in El Mohamed Said Matula V. R, (1995) T.L.R 3. The court held and I quote: "Where the testimonies of witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and tty to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root of the matter" I am of the firm opinion that had the DC addressed the contradictions and inconsistencies, it would have concluded as I do that they did go to 'the root of the matter' i.e. namely whether any of the girls was raped or not; and two, if any of them or both were raped whether the appellant was properly identified as the culprit and therefore that the case against the appellant was not proved beyond reasonable doubt. Second, the prosecution's evidence had too many grey areas. If indeed Pw' had made a report to her father and the father had reported to VEO, what action was taken? The story was disjointed. According to Pw 311S first version the incident was reported the same day to the VEO, but it is not clear what happened to that report made to VEO a person in authority; whether the report was indeed made will never be known since the VEO was not called to testify. The same witness Pw3 also stated that he reported the matter to the 5 police following the appellant's arrest and identification at the VEO office. The testimony of the said VEO and the investigating officer would have helped clarify the unanswered questions and provide a link between the accused and the commission of the offence. Unfortunately for the, cause of justice, such evidence was missing. I have noted the absence of investigator's testimony with concern, and believe it is not out of place to repeat an observation I made in another similar case at a different High Court center that; investigation and prosecution of rape cases do not appear to be treated with the same seriousness accorded other serious crimes attracting heavy penalties. See Ezekinya Ondego Akanga V. R, HG Cr. Appeal 78/2005, Mwanza registry (unreported.) The Same concern was expressed by Masanche J in an- earlier case from the same registry, Samwei s/o Lage © Jumbo Vs R HC. Cr. App. 180/2003 where he observed that; "After reading the entire record, I get the impression that the prosecution into this rape case was veiy Rape is a serious offence: it attracts life imprisonment. So, investigating officers must be thorough in their investigation. And indeed, it behooves reasoning to see that even the investigating officer would ignore to come to COurt and testif/' And on the issue of absence of the investigators testimony the same Judge observed in a different case; Lucas s/o kahifldi Vs R, Mwanza HG. Cr. App. 236/2003, Mwanza registry (unreported), that; n. y "the law has not put investigators to be vital witnesses in criminal trials for fun. These are the people who link accused to the commission of the offence—" It is hoped that the decried trend will change if the SOSPA objectives are to be achieved. To conclude, I find that the evidence adduced in the DC was insufficient to find conviction against the appellant, quash his conviction and sentence, and order that he be released forthwith unless otherwise lawfully held. it is so ordered. R.M. RWEYEMA - JUDGE 9/6/2008 l. ) •r VA