ramadhani so ngazi vs republic 2008 tzhc 144 23 may 2008

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA APPELLATE JURISDICTION HC.CRIMINAL APPEAL NO. 96 OF 2006 (Originating from Criminal Case No.135/2004 o f Bunda District at Bunda) n * M s r > u * M T A ir> nr! » h nvnr i ................ ... r u L u n n * Versus THE REPUBLIC.................RESPONDENT JUDGEMENT 23/4/& 28/5/2008 Sumari, J. The appellant Ramadhani Ngazi was charged and convicted of pno r/q “*30 and 13^ *"he Penal Code a? amended No.4/1998. He has appealed against both conviction and sentence. At the hearing the appellant had nothing substantial to add or explain despite his grounds o f . appeal. The respondent. was s '* represented by the learned State Attorney, Mr. Kajungu, how did not support conviction for the following reasons:-That looking at the 1st paragraph of the judgment (at page 1-para 1 line 15 the trial magistrate indicated that Pw 2, the father of Pwl, the victim lit the torch and saw the appellant raping his daughter. It is not specific what he saw if truly he saw the appellant, whether the appellant was undressing or was raping? According to Mr. Kajungu, this is not .specifically said by Pw2; the father of the victim, Pwl. Pw3 the area chairman said that appellant was brought to him while naked. Mr. Kajungu is of the opinion that it is not normal that a rapist do take off all the clothes when raping. He reasonably thinks that in the circumstances the appellant would have his shirt on and undressed his trousers only. That the people who arrested the appellant from the evidence of Pw3 were all relatives of Pwl and Pw2 - why no other villagers. Again looking at the evidence of Pw4, the doctor who'examined Pwl said "accused raped the victim." The Pw4's evidence, however, contradicts what is in the PF3; in that it does not support that Pwl was seen with injuries. Lastly, Mr. Kajungu submitted that the defence of the appellant gives more weight against that of prosecution. There were s. allegations that appellant was beaten and he was demanding his two years outstanding salary, which evidence was not rebutted by the prosecution side;' With these reasons he submitted that the appellant's appeal has merits. In discussing this appeal very briefly, I will start with the last point pointed by the learned State Attorney. It is true as well submitted by the learned State Attorney that the defence of the appellant which was not rebutted by prosecution leaves much to be desired. Pw2 admitted that appellant was his employee and prosecution was silent on the issue of wages. Back to the prosecution evidence, as well submitted by the respondent the evidence of Pwl and Pw2 is the evidence of witnesses with an interest to save; even those arrested the appellant as per Pw3's evidence, were all relatives of Pwl and Pw2. In normal circumstances in such incidents neighbours and people around the village do respond to witness what has happened.. None of such people testified in this case despite the fact that Pw3 said were more than 10.. Pw3 stated that appellant brought to him by Pw2 and other- 10 people and that these people were Pw2's relatives. That appellant was fullv.naked. This accoiding to learned State Attorney in.iiniisii;ii unusual because in normal circumstances a rapist would have not Deen full naked rather would be with his shirt’ at least. I fully subscribe these views by the learned State Attorney. That a rapist, if true; in such an incident as this one, would not in normal circumstances' undress alf his dresses. Again looking at the evidence of Pw4 the doctor who is said to have examined the victim, Pwl, in his testimony told the court that Pwl was raped and her vagina sustained injuries by sexual act produced by the accused person. (Emphasis is mine). He however, went on telling the court that he did not see sperms in the vagina. The PF3 was tendered in court by Pw2 the father of the victim, Pwl. The procedure in which the same was tendered is very questionable in law. I would however, not discuss it much. But suffice to say that the evidence in the PF 3 is not supporting that of Pw4 who filled or prepared it. In the PF3 the doctor remarked that "No hlood or excessive secretras or any injury seen on/in the vagina. Altnough the vagina has no hymen". These remarks highly contradict the evidence of Pw4, the purported maker of the same. All in all, as it may ba, I agree with the learned State Attorney that the evidence before the trial court was not enough to warrant a conviction. Therefore, I allow this appeal, quash the conviction, and set aside the sentences. The appellant to be set free immediately unless held further for some other lawful causes. EU/U^CUj^j ‘:4 M Ui A.N.M. Sumari JUDGE Delivered in presence of the parties. At Mwanza 23/5/2008 5