gangi so pius vs republic 2008 tzhc 154 11 august 2008

IN THE HIGH COURT OF TANZANIA A T TABORA. APPELLATE JURISDICTION (Tabora Registry) CRIMINAL APPEAL NO. 30 OF 2008 ORIGINAL CRIMINAL CASE NO. 141 OF 2007 OF THE DISTRICT COURT OF IGUNGA DISTRICT A T IGUNGA. BEFORE: D.D. MALAMSHA,Esq; DISTRICT MAGISTRATE GINGI S/O PIUS................................. APPELLANT (O riginal Accused) VERSUS THE REPUBLIC.................... ........ RESPONDENT (Original Prosecutor) TUDGMENT 14,hJuly, 08 & l l ,hAug.08 MUTULIZI. I. These are consolidated appeals. The Appellant was charged first in C rim in al Case No. 141/2007 on one count o f rape c/s 130 (1) (2) and 131 (1) o f the Penal Code, (Cap.16, R.E. 2002) on 13/07/2007: He was subsequently convicted on 28/09/2007 and sentenced to thirty. (30) years imprisonment plus corporal punishment (twelve strokes). He appealed against the conviction and sentence. It was alleged that he had committed the offence on the 28th day of May, 2007 at about 23.00hrs at Kamando Street within Igunga District in Tabora Region. The victim was one Asha d/o Ramadhani a woman aged 28 years. In Criminal Case No. 411/2007 he was charged with sexual harassment c/s 138 D (1) o f the Penal Code (Cap. 16 R.E. 2002 ). It was alleged that on 30th May, 2007 at about 1.30 hrs at Mwanguzi Road within the District o f Igunga in Tabora. Region, he had unlawfully, sexually harassed one MWAMINI D/O JUMA by pushing her down with intent to have sexual intercourse with her. But, what is interesting the charge was, first read to the appellant on 4/06/2007 when he was charged together with one Kisuda s/o Ramadhani as the 2nd accused'. The charge against the 2nd accused was later dropped and substituted with the offence of assault causing actual bodily harm c/s 241 o f the Penal Code (Cap.16 R.E. 2002) as against,the said KISUDA S/0 RAMADHANI. The appellant was convicted on 15/10/2007 and sentenced in the following terms: “in the circumstances I found... that the prosecution has proved the charge beyond all reasonable doubts and both the accused persons was found guilty as charged and do convict them accordingly On the sentence: “I sentence the 1st accused to pay a fine of Shs. 50,000/= or three months imprisonment. The 2nd accused has previous record o f the same nature. He is dangerous to the society. I sentence him to twenty (20) years imprisonment under the minimum sentence Act.” Now, if the facts agreed at the preliminary hearing in the rape case are anything to go by, it was common ground that the rape in that case is alleged to have been committed on the 28/05/2007. In that event, the assault the subject o f the second charge, occurred two days thereafter on 30/05/2007. 3 For the first charge, he alleged that was arrested seven days after. But, the charge was read on 04/06/2007 that is about six days in relation to the assault, but the rape charge was read on 13/7/2007 - long after the assault charge. Since the rape case was conducted first, I will dispose o f it first. The Appellant challenges the conviction on two main grounds:- a) That there was no conclusive evidence that the complainant,PW.l Asha d/o Ramadhani had been raped; PF.3 form was wrongly admitted in evidence as the examining D octor was not called. b) That the learned trial Magistrate erred in law in failing to evaluate the evidence. c) That the Court erred in law by not taking into consideration his defence. The Respondent Republic was ably represented by Mr. Salum, learned State Attorney. He supported the conviction saying:- a) That although pursuant- to section 240 (1) and 240 (3) (CPA Cap. 20. R.E.. 2002) the accused was bound to be advised by the court about his right to call for, and, examine the Medical Doctor who prepared the examination report; which was not done in this event, yet there was independent evidence sufficient to support the conviction. This evidence, is the testimony o f PW.l, the victim herself which was corroborated by PW2, Neema d/o Athumani, and PW.3, Said s/o Kiula. Supporting his argument he cited, the decision o f the Court o f Appeal o f Tanzania in SELEMANI MAKUBA V.R. CRIMINAL APPEAL NO. 94/89 - C AT (M beya) Unreported) wherein it was held; “True evidence o f rape has to come from the victim if an adult, that there was penetration and no consent.” Further, on the medical report: that; “A medical report or the evidence o f a doctor may help to show that there was sexual intercourse but does not prove that there was rape i.e. unconsented sex, even if, bruises are proved in the female sexual organ.” In that event ,he concluded, the medical report was not material to conviction. 5 On failure to evaluate evidence, the learned State Attorney was o f the view that, it was not true, as alleged by the appellant that the learned trial Magistrate failed to take into consideration the defence case, since at page 2 o f his judgment the learned magistrate considered the totality o f the evidence and came to the conclusion that the prosecution had proved its case. In my opinion, t h e , only issue for determination is whether the testimony o f P.W.l was credible so as to find corroboration in the testimony o f PW.2 and PW.3. It is an established rule o f evidence that every, witness is presumed credible until ground is laid, or circumstances put up, to reburt that presumption: GOODLUCK K Y A N D O V.R. Criminal Appeal No. 118/2002 (Unreported) CAT at Mbeya and, MATHIAS BUND A L A V.R. Criminal Appeal No. 62/2004 (Unreported) CAT at Mwanza. Otherwise, in terms o f Section 127 (7) o f the Evidence Act, (Cap. 6 R.E. 2002), in proceedings involving Sexual offences, the Court may convict on uncorroborated evidence o f the victim provided the court is satisfied that the victim is telling nothing but the truth. The impeachment o f a witness’s credibility is by cross examination, and rebuttal by way of more credible evidence from the defence tending to show that the testimony sought to be impeached was manifestly false. According to PW.l, the accused forcibly had sexual intercourse with her, ejerculating once. That she raised an alarm and people came to her rescue. They arrested the accused at the scene but that he managed to escape. The appellant tried to impeach this testimony, without much success. According to PW.2, Neema d/o Athumani, the appellant was still lying on top o f the complainant (“intercousing (sic) her”) when she rushed to the scene following alarm from the direction where her friend had headed. She then said that, “when I tried to help, I was cautioned by the other people that the accused has a knife which he has attempted to knife them. There was also a man said who was afraid.” According to this witness, although she was not the first one at the scene of the crime, she met other people there, and the appellant was going on with his sexual intercourse oblivious o f the alarm and concern raised by the gathered crowd until when he completed. And that he boasted about it, to all who fiapl witnessed the incident. 7 Although, during cross examination, PW,2 said that; although she did not see the alleged knife, the appellant was naked, but then she says that “ she pulled his “T.shirt till it was torn.” In my considered opinion, this apparent contradiction is as a result of translating Swahili to English. In Swahili, being naked is complete upon exposure of the genitals, as opposed to “naked” in English which refers to being “without clothes:” New concise Oxford ENGLISH Dictionary - Eleventh Ed. According to PW.3, Saidi s/o Kiula - page 6 “on arrival near the VO D A C O M Peack (sic) (I believe it was intended transmission tower), 1 found people struggling on the ground. They were making love affairs. The accused was doing sex intercourse by force to PW.l as PW.l was crying on the ground. I asked them why they were doing the said intercourse or the road. PW.l was crying seeking for help. I went to help her, and the accused threatened to sturb me with a knife. I continued to be there trying to think what to do in order to help PW.l. However other people came there who included PW.2 and Mpoka s/o Juma. PW.2 then asked the accused that why he was doing such a shameful act. The accused said that PW.l has a food and sweet virgina and he wanted to take her to his room. PW.l was naked as-well as the accused and I saw the native chains o f PW.l cut and were on the ground. The accused was taken aside by Mpoka while PW.l was taken by PW.2 many people from the nearby houses respondent at the place o f the scene...” Now, during cross examination, this witness stated (page 7) “I could not define the clothes you had. You were arrested by Mpoka who took you beside It is clear that although the Appellant tried to impeach the testimony of the three witnesses, he did not succeed. The nakedness clearly referred to his genitaria being exposed during and after the sexual intercourse. In his own testimony the appellant did not deny the physical confrontation with PW.l but only tried to explain the circumstances being other than rape. I have found it difficult to reconcile his assertion that he lent money to PW.l on the night in question, while at the same time he swore that he did not know her at all and that he met her for the first time that night. In the circumstances, the trial magistrate who had opportunity to weigh the demeanor of the witnesses can not be faulted is his finding that ail three witnesses were credible. 9 I therefore dismiss the appeal. The sentence metted out was the minimum set out and I can not interfere with it. Now, turning to the second appeal: I am not in agreement with the stance taken by the Respondent Republic. The submissions by Mr. Salum seem to have been occasioned by the confusion in the record. The appellant was charged and convicted on one count of sexual harassment. When the charges were first read out on 4/06/2007 the Appellant was charged as the 1st accused. When the charge was substituted the Appellant became the second accused. Unfortunately the changes were not reflected on the face of the record. This seems to have raised serious difficulties, because the record continued to name the Appellant as, “the 1st accused.” So it appears on the judgment, although during the sentencing, it is clear that the court had the appellant in mind, when it sentenced: “the “ 2nd accused has a previous record o f the same nature. He is dangerous to- society” However, when in the summary, .reference is made to “on 1/06/2007 the 1st accused , was arrested" and on 2/06/2007 the § 2nd accused was arrested’ it is not clear who is who; as between Gingi s/o Pius the appellant and Kisuda s/o Ramadhani. In her testimony, PW.l referred to the 1st accused as her husband. In that event, that would be Kisuda s/o Ramadhani who testified as DW .l. The evidence o f PW .l is clear as to the charge against the Appellant. The appellant assaulted her and continued even the next day to do so when he beat up the witness. Her testimony was corroborated by PW.2 Songaleli Makala, and PW.3 Walehe s/o Juma who was at the material time with her sister the complainant - PW.l. His defence does not discount the credible testimony of PW.l, PW.2 and PW.3. In fact he did not even challenge the testimony but claims that he (PW.2) was his enemy. In the circumstances, although the appellant seems to have laboured under the mistaken belief that he was also convicted of the offence o f assault causing actual bodily harm c/s 241 o f the Penal Code (Cap. 16 R.E. 2002) as reflected in his Petition o f Appeal, in my opinion that mistake o f fact was after the trial, conviction and sentence. It therefore did not occasion any injustice to him. In the result therefore this appeal, like the first one, revolved on the credibility o f the prosecution witnesses- Grounds No. 2,3 and 5. The challenge to the weakness of the medical examination report in ground No. 4, concerned the charge for assault causing bodily harm, which did not concern the appellant. In the circumstances, the same holding on credibility o f witnesses holds true mutatis mutandis with respect to the three prosecution witnesses, PW.l, PW.2 and PW.3. Perhaps, just for emphasis, I should here quote in extenso the holding of the Court of Appeal in the Mathias Bundala Case (supra): It was held; “If a witness is not an infant and has normal mental capacity, the primary measure o f his/her credibility is whether his or her testimony is probable when judged by the common experience of mankind. The assumption will always be that the testimony is true unless the witnessed character for veracity has been assailed by .some mortive on his or her part to misrepresent the. facts has been established, his er her bias o r •Si * prejudice has been demonstrated and he or she has given fundamentally contradictory or improbable evidence or has been irreconcilably contradicted by another witness or witnesses I have strenuously applied the above test to this case. But, I have found no contradiction, nor any case o f bias in relation to the clear evidence of the three prosecution witnesses. In the event I uphold the conviction and sentence of the lower Court. However, for purposes o f setting the record clear, the twenty year’s term should run concurrently with the thirty years sentence for rape. Otherwise the Appeal stands dismissed. It is so ordered. JUDGE 11/08/2008 RIGHT OF APPEAL . The appiellant is at liberty to appeal further to the Court of Appeal of Tanzania. In case he so decides, then he must in 13 terms o f Rule 61 (1) o f the Court o f Appeals Rules 1979... “give notice in writing, which shall be lodged in triplicate with the registrar o f the High Court at the place where the decision against which it is desired to appeal was given (In this case. Tabora) within fourteen days o f the date o f that decision (in this case. today 11/08/2008)... ” and, In terms o f Rule 65 - ( 1) the appellant shall, within fourteen day's after service on him o f the record o f appeal, lodge a Memorandum o f appeal, insextuplicate, with the Registrar or with the Deputy' Registrar at the place where the appeal is to be heard. A.K. MUJULIZI JUDGE 11/08/2008 Judgment delivered in the presence the Appellant who is under custody, and Miss Mandago learned State Attorney for the Respondent Republic. A.K. MUJULIZI TUDGE 11/08/2008 14