20081104 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION (M beya Registry) DC CRIMINAL APPEAL NO.35 OF 2008 (From Mbeya District Court Criminal Case No. 26 of 2006) ELlA PESAM BILl ... ... ... APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 4111 261h Aug. & Nov. 2008 MSUVA, J. The appellant ELIAS PESAMBILI was charged convicted and sentenced before the District Court of Mbeva at Mbeya for the offence of rape contrary to section .1 30 and 131 of the Penal Code Cap. 16 Vol. 1 of the Laws as repealed and replaced by section 15 (I) and (2) (b) of the Sexual offences Special Provision Act No.4 of 1998. Dissatisfied with the conviction and sentence he preferred this appeal. ihe Republic was represented by Griffin and Mr. 1\4aganda learned State Attorneys and the appellant appeared i n person. - The evidence at the trial court was testified by three witnesses. PW. I a minor, aged 12 years after you-c dire examination, gave an unsworn statement and she testified that, she is a standard seven student at Igalako Primary School. She testified that on the I 6Ui August 2005, his uncle Pw.1l by the name of Charles Ngao went to where she was living but could not find her; PW.11 searched for her and found her at the appellant's house, where she had stayed for three days. She said that she \vent there for conversation and had sexual intercourse with the appellant. PW.11 stated that on the I 6thi1812005 he went to visit PW.i s grandmother who told him that PW. I has been missing for about 5 days. He further stated that the grandmother told him that PW. I is mentally disturbed and she does not sleep at home. On his search he was told that PW.1 has been seen cooking at a certain place. He reported the matter to the ten cell leader who advised him to go to the Chairman of local government. He lefi with the chairmans son to the appellants residence. They found the appellant who said PW.I was his wife. The appellant was arrested and they were given PF. 3 by the police for PW. I s medical examination. PW.11l D.4534 Cpl. Mhibu was an investigation officer who issued the 1 11 F.3 to PW. I for medical examination. He also interrogated the appellant who admitted that PW.l was found at his residence but refused to have sexual intercourse with her. He recorded a caution statement. The PF.3 and the caution statement were tendered and admitted in court as Exhibits 'P.] and "P.2 respectively. On the other hand the appellant denied the charge facing him. Gi\iing his testimony on oath he stated that on the 15/8/2005 at Mahongole village at about 23.00 hours while asleep he was ambushed by people who beat him on allegation that lie has stolen rice. While he was being beaten, one woman came with a young girl and asked the people who were beating the appellant, to plant a rape case against the appellant for him to stay in prison. He said he was taken to police, interrogated and denied to have raped PW.1. He denied having any relationship with the appellant. In convicting the appellant the trial resident Magistrate while not believing the appellants defence held that it is a statutory law that a girl of twelve years old does not have to consent to sexual intercourse even if she admits to have sexual intercourse. That when PW. I was cross-examined by the appellant she told the court that they agreed to have sexual intercourse, in the strength of that evidence the trial Resident Magistrate found the accused guilty, as charged, convicted him and sentenced him to thirty (30) years imprisonment. The appellant had raised 4 grounds of appeal. The first ground of appeal is that the learned trial Resident Magistrate erred infaci and in law in believing that PW.] was aged 12 years without proper medical report to that effect. The case of Sungu Suba V. R. (1971) HCI) 385 was referred. The second ground of appeal is on the prosecutions failure to call the ten cell leader or the local government Chairman to corroborate the evidence of PW.1 and PW.JI. The case of Wilfred Mohamed V. R. (1985) TLR. Page 81 was referred to. On the third ground of appeal the appellant challenged the trial resident Magistrate's reliance on the PF.3, without calling the expert evidence of the Medical Doctor who conducted the medical examination. He referred the court to the case of Sungusuba V. R. (1971) HDC. 785 and the case of Jumu Choroko v. R. Appeal No. 23/2000 unreported. The fourth ground of appeal is that the offence of rape is not proved, that the learned trial Resident Magistrate erred in law and in fact in relying on the caution statement, to prove the offence of rape while the appellant denied in the caution statement to have sexual intercourse with PW.l. That the prosecution must have pro'ed that the appellant had sexual intercourse with PW.I. that there was penetration in the vagina. The above grounds of appeal were cum submission. In reply the learned State Attorney Mr. Griffin for the Republic submitted that as regards the prosecution failure to call the ten cell leader, village chairman or the medical doctor, it was not necessary where the prosecution felt that the witnesses called were adequate for the proof oftheir case. On the issue that the trial Resident Magistrate erred in law and fact in relying on the caution statement, the learned State Attorney submitted that the evidence of PW.I herself who testified that he has staved with the appellant in his house for three days and that she had sexual intercourse with the appellant and that it was her first time was enough evidence to prove the case, despite the caution statement. I have gone through the proceedings of the trial court, Resident Magistrate's judgment and the submissions of the appellant and the State attorney. In absence of convincing defence to contradict the prosecution evidence relating to the fact that PW.1 was found in the appellant's residence by PW.l1. I fail to fault the trial Magistrate on the fact that PW.I was indeed in the appellant's house for three days as she stated. PW.1 's evidence that he was in the appellant's house is corroborated by 1 3 W.11 who indeed found PW.I in the appellant's house. It is very difficult to believe the appellant's story that, while he was being beaten by the people who arrested him, a woman came with a girl child and said that a case of rape should be planted against the appellant so as to be in prison. The PF.3 also corroborates the evidence of PW.1 that she had sexual intercourse as the Medical Officer's remarks shows that "This girl is used to sexual intercourse as there is no hmen found when examined digitally." On the issue of calling the Medical Doctor : the court may not call the medical expert if it feels that there is no reason for calling him, even the appellant himself according, to the records did not demand that the Medial officer be called for him to cross-examine him on the '1"1 7 .3". He did not even call the Medical Officer as his defence witness. I agree with the trial Resident Magistrate that the fact that the appellant do not have any filial relationship with the appellant, staying with the appellant for three days was not for any other purpose but that of sexual relationship, this is because there is no evidence to show that PW.1 was a relative of the appellant or an employee like house maid etc. although it is as well illegal as it is child labour. For the above reasons I have no justification to faulty the trial Resident Magistrate. Therefore the appeal is devoid of merit and the sentence imposed upon the accused cannot be disturbed. The appeal is therefore dismissed in its entirety. Ordered accordingly. U .H . MS UY A JUDGE 4.11.08 Date: 4/11/08 Coram: Hon. U. Msuya, J. Appellant: Present. For the republic: Miss Tuinaini, State Attorney C/C: Mrs. Flora Mponzi. Order: Judgment .is.delivered on the 4111 day of November 2008 in the presence of the appellant and the learned State Attorney Ms ]Jmaini for the Respondent/Republic. MS U YA 4 JUDGE ::• 4.11.2008 ' ..... 4 Aew Ap ..-...