abdallah athumani vs republic 2008 tzhc 134 4 july 2008

IN THE HIGH COURT OF TANZANIA AT TANGA (DC) CRIMINAL APPEAL N O .ll OF 2006 (O rig in a tin g from C rim in a l C ase N o.2 1 9 o f2 0 0 5 H a n d e n i D is tric t C o u rt) ABDALLAH ATHUMANI................................................. APPELLANT VERSUS THE REPUBLIC............................................................. RESPONDENT 2 /6 /0 8 & 4 /7 /0 8 JUDGEMENT Shayo, 3. On 2nd June, 2009, I allowed the appeal, quashed the appellant's conviction and set aside the sentence and order for compensation. I further ordered that the appellant be released from prison forthwith unless otherwise- lawfully held. I however reserved my reasons for so doing which are now contained in this judgement. The prosecution case can be stated as follows, that on 6/7/2003 at around 9.00pm. PW.l Waziri Saidi had retired home only to find his wife PW.l Mariam Saidi in sexual affair with the appellant. He saw the appellant when he torched him holding PW.2 by herthroat, he soalleged. The appellant ran away when he saw the torch light. PW.lchased after him but to no avail. He went back home where PW.2 his wife explained how she was called by the appellant who threatened her and forcily had an affair with her. Reports of the alleged rape was taken to the Village Chairman and his Secretary, that is, DW.4 Haji Mohamed Mgaya and DW.2 Haji Mkata respectively. PW.3 Issa Saidi was sent by the DW.2 to go and fetch PW.l and the appellant to the come to the village office. PW.l and the appellant and PW.2 went to the village office. DW.2 and DW.4 interrogated the appellant who admitted to have sexed the wife of PW.l. PW.2 also admitted the appellant to have been her lover. PW.2 claimed to have had an affair with the appellant 3 times. The first time she was given Tshs.lOOO/= but 2nd and 3rd times no money was given to her. The village leaders advised PW .l, PW.2 and the appellant to be reconciled but PW.l refused whereof the matter was reported to police station on allegations that PW.2 had been raped. At the police station PW.2 was issued a PF.3 ( exh.PE.l) for treatment on allegations that she had sustained injuries as a result of' rape. It was not until 1st August, 2005 that the appellant was charged with the offence of rape. In his defence supported as he was by his witnesses - DW.2 - DW.4 the appellant strongly denied to have committed the offence - save for adultery which was reported and efforts to reconcile failed. In his petition of appeal in which he was represented by Mr. Mramba, learned counsel, the appellant has protested his innocence and impugned the decision of the trial District Court on the ground that the trial magistrate misdirected herself in law and on facts in finding that the prosecution had adduced sufficient evidence to prove the charge of rape, that Mariam Athuman (PW.2) was not a credible witness and that the evidence of the PF.3 that was tendered as a prosecution exhibit was not reliable. He thus prays that this appeal be allowed. Ms Makondo, learned State Attorney, on behalf of the republic declined to support both the appellant's conviction and sentence. She thus urged this court to allow the appeal as the conviction was not supported by evidence. I have dispassionately considered the recorded evidence in the trial court and the arguments raised by the two learned counsels, that is, Mr. Mramba for the appellant and Ms. Makondo for the Republic/respondent in support of their respective stances. The central issue for determination is whether the available evidence was satisfactorily sufficient to support the appellant's conviction. ’• ^----- On the evidence, it is glaringly clear that the two crucial prosecution witnesses PW.l and PW.2, were not only witnesses with their interests to serve, but also were not telling the truth. They could not be taken to be reliable and therefore credible witnesses. PW .l the husband of PW.2 had found her red handed in sexual affair with the appellant. The appellant of course had to ran away to serve his life. To conceal the shameful incident both PW .l and PW.2 came up with a funny story that the appellant had threatened PW.2 and had an affair with her by force. PW.l and PW.2 went as far as claiming that the appellant had held PW.2 on her throat tightly so that she could not shout for help. PW.2 claimed further that the appellant had a panga but PW.l never mentioned that. The testimony of PW.l and PW.2 raised a lot of doubt to the prosecution evidence. That doubt was squarely reinforced by the defence witnesses DW.2 and DW.4 who were the village leaders. They all testified that the report that had been received was that of adultery between the appellant and PW.2 the wife of PW.l. The went further to tell the court that when PW.2 was asked about the matter she admitted that the appellant was his paramour and that they had sexual affair three times, the first time she said she was given Tshs.l000/= while the 2nd and 3rd time she was given nothing. It was also the testimony of DW.2, DW.3 and DW.4 that when the appellant was interrogated he also admitted to have had an affair with PW.2. It was also in evidence that the village authorities had advised PW.l and the appellant to sit down and reconcile the adultery mishap but PW .l resisted and forced the matter to be reported to police station on allegations of rape. It is further doubtful that the purported PF.3 that was issued to PW.2 can hardly be taken as genuine and reliable. No police officer who came up to testify' on this matter and it is not even shown the name of the doctor or medical officer who conducted the medical examination. Any anonymous fool could sign that document to serve his interest. No medical officer was called as a witness to testify for the prosecution. In the absence of evidence from the medical expert, definitely it was not safe for the trial court accept as a fact that PW.2 sustained the bruises allegedly indicated on the PF.3. 3 There is no doubt therefore that the conclusion by the trial court that PW.2 sustained the bruises as a result of the act of rape, was not only a misdirection on the evidence but also that it was unjustified in the circumstances of this case. The prosecution evidence was too weak to be true and the defence evidence sufficiently raised a reasonable doubt on the weak prosecution case. The appellant's conviction was therefore not tenable in law. It is for the foregoing reasons that I allowed the appeal and made the subsequent orders. A.A.Ml^HAYO, J. 19/6/2008 . i p Mf&ki n ‘P^liveretf atTarlga tnjs day of July, 2Q08. VA A.AMi^HAYO, 3. 4/7/2008 For Appellant:- Mr. Mramba, Adv. For Respondent/Republic:- Ms Kitau - S/A. 4