20081126 TZHC Dodoma

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: RUTAKANGWA, J.A., KIMARO,J.A., And MBAROUK, J.A CRIMINAL APPEAL NO.183 OF 2006 SE LEMAN I RAMADHANI. ... ................................. .. APPELLANT VERSUS THE REPUBLIC ................................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Dodoma)· (Kaiiage, J.) dated 14th March, 2006 in Criminal Appeal No. 32 of 2002 JUDGMENT OF THE COURT 24 th & 2ih November, 2008 KIMARO, J.A. The appellant was charged in the District Court of Manyoni with the offence of rape contrary to sections 130(2)(e) and 131 ( 1) of --·-.- - . - _,. - - -··· the Penal Code as amended by the Sexual Offences (Special Provisions) Act. He was alleged to have unlawful sexual intercourse with one Ester Kapinga (PW1) who was then aged fifteen years, and was a primary school student, on 14th December, 2001. Apparently the complainant conc_eived, and that is what revealed the sexual relationship between them. The appellant did not at any stage during the investigations up to the trial deny having sexual relationship with PW1. He insisted that the sexual relationship was a consented one, and he wanted to marry PW1. The only thing he disputed was the age of the complainant which he claimed was never disclosed to him, contending that PW1 appeared to be above the age of eighteen. In the trial court the evidence that was led to prove the age of the complainant came from the_ complainant herself, her guardian, Scola Kapinga (PW3) and Dr. Wilson Makala (PW4) who had examined her. Being a Catholic by religion, the complainant was baptized. A certificate issued by the Catholic Church where she was baptized was also tendered and admitted in evidence as Exhibit P2 in· proof of her age. All evidence collected by the trial court to prove the age of the complainant showed that she was fifteen years. The ie;ertificate of her baptism in particular, indicated that she was born on 12th September, 1986. As we have already stated, the appellant did not dispute in his defence the sexual relationship he was alleged to have had with 2 PW1. From the appellant's own admission given at the time he made his defence, he had sexual intercourse with the complainant six times. The appellant was convicted as charged by the trial court because under the provision of the law he was charged with consent is immaterial where the woman/girl is under the age of eighteen years. He was sentenced to a term of thirty years imprisonment. In addition, he was ordered to compensate the complainant an amount of Tshs. 100,000/-. Aggrieved by the· conviction and sentence, the appellant appealed to the High Court but his appeal was dismissed. The High Court, like in the trial court, said that so long as the complainant was below the age of eighteen, the duty of the prosecution was an easy one, in the sense that what the prosecution had to prove was the sexual intercourse b-etwe·en the appellant and the complainant. As we have already indicated, the appellant did not dispute having sexual intercourse with the appellant 3 Still believing that he was wrongly convicted, the appellant lodged this second appeal. His grounds of appeal are four. In the first ground of appeal his complaint is that the prosecution case was not proved beyond reasonable doubt. The second one was that in the · trial court he was not afforded opportunity to cross examine on some exhibits which were tendered in court. The judgment of the trial court is the subject of his complaint in the third ground of appeal in that it was not a reasoned judgment. The last one is in respect of the age of the complainant that a birth certificate was not tendered in court to prove his age, In this Court, like in the courts below, the appellant appeared in person. For the respondent Republic, it was Mr. Anselm Mwampoma, learned Principal State Attorney who represented it. In arguing his appeal the appellant insisted that the offence of rape was not proved because the complainant consented to the sexual relationship and she did not reveal her age to him when they started the relationship. He said the complainant by appearance gave him the impression that she was above eighteen. Challenging the evidence of the Doctor who said the complainant was fifteen 4 years, the appellant said his evidence should not be believed because he failed to assess his own age when he was required to do so. The appellant also lamented that he was not given time to cross examine the guardian of the complainant on the certificate of baptism. Since justice was not done in the case, contended the appellant, the Court should order re-trial. He prayed that his appeal be allowed. The learned Principal State Attorney supported the conviction and sentence. He said the High Court rightly upheld the conviction and the sentence imposed by the trial court. Except for the age of the complainant which the appellant had disputed, contended the learned Principal -State Attorney, a lot of matters were not disputed and the appellant consistently conceded to have sexual intercourse with the complainant, which was made several times. Regarding the evidence on record showing that the complainant was below eighteen years, argued the learned Principal State Attorney, it was abundant and that came from PW1 herself, PW3 and PW4. He said in addition, there was also the PF3, (exhibit P1) which was issued to the 5 complainant for medical examination and the certificate of baptism (exhibit P2). The learned Principal State Attorney objected to the prayer for re-trial arguing that there was no miscarriage of justice at any point in the trial and hence there is no foundation laid for the said prayer. In his opinion, the proceedings in the trial court showed that the appellant understood the nature of the offence that was facing him and this is clearly reflected in his cross examination of the witnesses. He prayed that the appeal be dismissed. Admittedly, this is one of those cases which need not detain us much. As correctly pointed out by the learned Principal State Attorney there was sufficient evidence led by the prosecution to prove that the complainant was ·below eighteen years. The complainant (PW1) herself, her guardian, (PW 3), the doctor (PW4) all gave evidence that she was fifteen years. The certificate of baptism, exhibit P2, is also documentary evidence which corroborates the oral evidence of the witnesses who testified on the age of the complainant. In this respect, the appellant defence that the complainant consented to the sexual relationship and that they met 6 . n several times for the sexual intercourse does not assist him. The law under which he was charged forbids sexual intercourse between a man and a woman below the age of eighteen years unless the woman is his wife. The said provision, namely section 130(2) reads as follows: " Section 130(2) A male person commits an offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: (a) ...................... . (b) ....................... . (c) ....................... . (d) ........................ . (e) With or without her consent when she is • · under eighteen years of age, -unless the--·····. woman is his wife who is fifteen or more years of age and is not separated from the man." 7 There was no evidence led to show that the complainant _was the wife of the appellant. At most what the appellant told the court was that he had an intention to marry her. Because the law imposes . strict liability where the offence of rape is committed with a woman below the age of eighteen, even the other argument by the appellant that he was not given time to carry out cross examination in respect of the certificate of baptism(exhibit P2) has no basis. The appellant also tried to challenge the competency of the doctor (PW4) who examined the complainant and certified that she was fifteen claiming that he was not able to assess his own age. But what was relevant for the proceedings was not his age but that of the complainant. In his other ground of appeal, the appellant said he complained about the judgment of the trial court in the High Court that it did not comply with the provisions of section 312(1 )of the Criminal Procedure Act, Cap 20. He said it was not based on the evidence which was tendered, but rather on the opinion of theJriaLmagistrate. The High Court however, did not consider this ground. But the record of appeal at pages 23-25 which are his grounds of appeal to the High Court has no such ground. In any event the ground does not have any merit, in view of what we have said transpired during his trial. 8 Eventually, we find no merit at all in his appeal. It is dismissed in its entirety. DATED at DODOMA this 26 th day of November, 2008. E.M.K. RUTAKANGWA JUSTICE OF APPEAL N.P.KIMARO JUSTICE OF APPEAL M.S.MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ ~ - - - · · - - .. •· _,_~-- - (S. S. MWANGESI) -SENIOR DEPUTY REGISTRAR 9