iddi saidi makombe wakuchonga vs republic 2008 tzhc 187 14 march 2008

IN THE HIGH C O U R T OF T A N Z A N IA AT M T W A R A CRIM IN AL APPEAL NO. 143 OF 2005 O RIG IN AL N A C H IN G W E A D /C O U R T CR IM IN A L CASE NO. 135 OF 2004 1DDI SAIDI M AK O M BE @ W A K U C H O N G A - - - AP PELLAN I VERSU S THE R E P U B L I C -------R E S P O N D E N T Date o f Last Order: 23/01/2008 Date o f Reasons: 14/03/2008 REA S ON S FOR T H E J U D G E M E N I S HA N GA L K J. On 23 rd January 2008, after going through the record o f the trial courts proceedings and after hearing the submissions from the appellant in person and Mr. I lycra, Learned State Attorney who appeared for the Republic Respondent, I immediately allowed the appeal, quashed conviction against the appellant and set aside the sentence imposed against him I also ordered for the immediate release o f the appellant from custody unless there was another separate lawful reason to hold him. 1 also reserved my reasons for such order which I am now set to announce. The appellant Iddi Saidima Kombe @ W akuchonga was charged with the offence o f Rape contrary to section 130 (e) and 131 oi the Penal Code as amended by the Sexual Offences, Special Provisions Act No. 4 o f 1998. After hearing the evidence o f one prosecution witness. PWI Kricth d/o M nunguye and the appellants defence the trial magistrate was satisfied with the prosecution evidence and convicted the appellant as charged. Consequently, the trial Magistrate sentenced the appellant to serve thirty years imprisonment term and ordered him to pay the complainant (PWI) a compensation o f Tsh.200,000/~ The appellant was dissatisfied with that decision o f the trial Nachingwea District court hence this appeal. The story o f the case may briefly be stated as follows. In the night o f 9th October 2004 there was traditional dance called “U nyago party” at the house o f Mzee Matigo within Songambele village. PWI, a mother o f 7 children, who was living alone because all her children were living with their fathers was in attendance together with the appellant who was a drum m er at the party. According to the evidence o f PWI, when she was going back home alone at about 5.00 am she was assaulted by the appellant who managed to rape her. She stated that the incident happened within the village and very close to the houses but no body respondent to her shouts. PWI claimed that she reported the matter at Police station where she was given PF3 and proceeded o the Hospital for medical examination. The said PF.3 was produced in court and admitted as exibit P I . Together with that evidence o f PWI, the trial court received and admitted as Exibit P2 the statement o f the prosecution witness one Saulo Lameck who failed to appear before the trial court The said statement was received under section 34(B) o f the Evidence Act, 1967. In his defence the appellant stated that on the material day and night he was attending the party with PWI who was also his lover. That at a certain time during the ngoma it was the same PWI who was holding his shirt. At about 4.00 am PWI agreed to have sexual intercourse with the appellant in her own house which was very close to the scene. That after hat exercise the appellant gave PWI l sh. 1000/—for the service. PWI accepted the pay but insisted for Tsh.2000/= more. The appellant claimed that he failed to pay the sum because he was not financial sound. On the following day at noon PWI approached him dem anding for her Tsh. 2000/=. The appellant claimed that he was not able to pay that amount and on the following day (i.e third day) he was supprised to be approached by the village militiamen accompanied by one o f P W I ’s sons who told him that he was required at the Police station. The appellant complained that he reported at the Police station only to be charge with the present offence. The appellant categorically denied o have raped PWI and stated that the case was fabricated against him following his failure to pay Tsh.2000 to PWI. The appellants story was not appreciated by the trial Resident Magistrate. The prosecution case won his heart hence conviction and sentence. In his mem orandum o f appeal the appellant filed a heap of uncoordinated grounds o f appeal but which may conveniently be summarized to form only one ground namely whether there was sufficient prosecution evidence to warrant a conviction. During the hearing o f this appeal he appellant insisted on his innocence. Mr. Hyera, Learned State Attorney who appeared for the respondent/Republic refused to support the conviction against the appellant not because o f the appellants defence but because o f the obvious weaknesses and loopholes in the prosecution evidence. Me submitted that in general there was no sufficient prosecution evidence to prove the case beyond all reasonable doubt against the appellant. On the evidence o f PW I he submitted that PWI claimed that after the incident she told several people at the ngoma place that she had been raped but surprisingly no body appeared in court to support her claims. Furthermore, the whole incident was not even reported to any village leader. PWI went to Police station after three days and she was medically examined after three days. Mr. Hyera submitted that exibil P L PL3 is not a good piece o f evidence to rel v upon because ii iias no name o f the doctor who filled it, not signed and has no date. 1le also pointed out that exibil P2, the statement o f PW2 was admitted in court contrary to the law because there was no evidence to show the efforts employed by the prosecution to find the said missing witness. The Learned State Attorney observed that rape is a serious offence which carries a very serious punishment and therefore even the standard o f p roof must be seriously observed. 1 entirely agree with the Learned State Attorney on the above cited short coinings on the prosecution evidence. It is unfortunate that the trial Magistrate totally failed to critically examine the evidence and the position o f the law. The issue o f identification was not even addressed although the incident happened in the nieht. The statement o f PW2 (Exibit P2) was admitted and used by the court against the appellant without being read over before the court. Infact the appellant was convicted without knowing what PW2 testified in court against him. To crown it all the defence o f the appellant raises a reasonable doubt. The stance o f the law is clear that the defence needs only raise a doubt in the mind o f the court. The appellants defence was not a piece o f evidence to be treated lightly taking into consideration the circumstances under which the offence was alleged to have been committed. It was a strong defence with a preponderance o f probability which the trial court ought to have considered and give reasons as to why it was rejected. For the above reasons, on 23Kl January 2008 the appeal was allowed and the appellant set free. v> P. T *\ A :;sv- (? ft M.S. Shimon Ii V. juixiL \ 14/ 3/2008 Reasons for the judgem ent delivered todate 14h March 2008 in the presence o f Mr. Hyera, Learned State Attorney, for the Respondent/Republic and in the absence o f the appellant.