20091105 TZCA Tabora

1,,, • • :•,, '' lj - l . \· 0. A+l q- (Z_ ,rt lJ ~- t. IN THE COURT OF APPEJ OF TANZANI~ AT~AeoJ (CORAM: KIMARO, l.A., MBARO~K, l. A.,And MASSAT.I, l.A.) . . .! i . . CRIMINAL APPEALS N<l>S.128 AND 129 OF 2007 · - 1 1 - I - 1. KABALAGALA KUDUMBAGULA ... ~ ........................APPELLANT 2. DAUD MAGUNGA........................ 'j I APPELLANT 1 I . , •••••••••••••••••••••• . . VE,US THE REPUBLIC...................................... . · :j .............. RESPONDENT I (Appeal from the 1udgment of tile High Court of Tabora) I I (Mzirl J.) I / dated 18th May 2006 j . • ii 1n Criminal Appeals. No~.67 and 68 of12005 - ..........~~········· - I-.- JUDGMENT OF THE COURT 3rd & 5th November, 2009 I I I KIMARO, l.A: I I I I The two appellants, together wrnh two others wio were acquitted, were charged in the District Court of Kilndo at Kibondo with two counts. The first count was abduction contraJ to section 134 of the Penal Code l - . [CAP 16 R.E. 2002] and the second one was gang rape contrary to sectlon ·l .J : -131A (1) of the same law. The trial court found the appellants not guilty of • either the offence of abduction or gang rape, but guilty of the offence of l' rape contrary to section 131(1) of the same law. The first appellant was sentenced to a term of forty years imprisonment and the second to thirty years. Dissatisfied with the conviction and the sentence, the appellants appealed to the High Court which quashed the conviction on the offence of rape and set aside the sentences imposed on the appellants, and substituted thereto the conviction for the offence of gang rape as previously charged, and sentenced both appellants to life imprisonment. Still aggrieved, both appellants are now before the Court with this second appeal. The memorandum of appeal by the first appellant has four grounds of appeal, while that of the second appellant has five grounds. The first point of complaint by the first appellant is that four witnesses who testified in the trial against him, namely PWl, PW2, PW3 and PWS were close relatives and so their evidence needed corroboration. In ground two, the first appeal court is faulted for upholding the trial court's finding that the complainant (Alice- PWl) was raped while her evidence lacked medical support. The third ground faults the trial judge for saying that the 2 1 ![ ! evidence .of PW4 was unchallenged whil,e the role of police officers is to look for evidence for conviction only. !stly the first appellant says that the case against him was framed so as tJ keep him behind bars in order to !I • give PW3 an opportunity to marry PWl. /; . ' I As for the second appellant, he lartjented in the first ground of appeal that the first appellate court erred in Jpholding the findings of the trial • I court which did not consider the evide~ce in its totality. Regarding his ~- second ·ground, the first appeal judg;e is faulted in applying double I! , standards in convicting him with such a ?erious offence while there was no I evidence that he participated in the commission of rape. ' Excessive II sentence is his third ground. His opiniion is that being a juvenile at the Ii . I time the offence is alleged to have bee1 committed; the first appeal judge ,, should not have imposed on him a custodial sentence. In the forth ground . i of appeal the second appellant claims ~hat there was np evidence that he I participated in the commission of the 9ffence by abetting the commission i of the offence by keeping guard outsidt the house where rape was taking place. Lastly is the complaint that the pffence against him was not proved ! beyond doubt. 3 I I Before us the appellants were not represented. The respondent / I I , • Republic was represented by Mr. John Rwabuhanga, learned Senior State · Attorney. I Let us first briefly look at the facts of the case. Alice Sagalike, (PW1) 11 was in two instances, on 10/3/2000 and 9'n 11/3/2000 taken by force from the residence of her mother at Kingore village to the residence of the first I i appellant on the reason that the appellant wanted to marry her. On 1 11 10/3/2000 PWl was at home alone, an9 although she resisted, the first I, appellant who was with the second appellant overpowered her. She cried I , in protest and some people came to her aid but they were not able to 11 I rescue her because they were assaulted by the appellants and were forced 1 1 i to run away. Even her mother, Barayan~ema Kaliyo (PW7) intervened but Ir ' I she was also beaten and her clothes torn and she gave up. On that day I' PW1 was locked in the house of the first appellant with people keeping guide outside but she managed to esfape unnoticed through an open I space she found in the house. She wentIback to her mother. 1 ' On 11/3/2000, as PW1, in the cd'mpany of Julius Kalelelo (PW2) his I , 1 brother, and Ntukumazima Emanuel (PW3 ) her boyfriend, were going to I report the previous incident to the teh cell leader, Everist Mnete (PW6) I 4 ,. I they again met the appellants with a groupl! of people who forcefully carried I ' I • her to the first appellant's house. While ~he second appellant and other I " people remained outside keeping guide, t~e appellant remained inside the Ii house with PW1. He, the first appellant !aid her on the bed and despite I I' resistance from PW1, the appellant force~ully raped her. The matter was Ii reported to the police and according to B. 6592 Corporal Joseph (PW4) and I Ndaribagije Emmmanuel (PWS) who wentj to the scene of crime, there was I , I a lot of commotion. An alarm was 'raised that they were thieves. 1, ' I However, PWS managed to quell the situ,,ation. PW4 forced entry into the j, house and took the first appellant andI the complainant to the police 1, station. All the prosecution witnesses said the explanation the first I I appellant gave was that he was intending the complainant. 1: I The first appellant in his defence sa''id he paid dowry to the mother of I : I, the complainant and he gave PW1 a gif/t, and what he did was to marry I her. He also admitted that he follow~d I PW1 at the, residence of her I I mother. Although the second appellant denied involvement in the I commission of the offence during th~ examination in chief, at cross I I examination he admitted that he made his statement to the police and he I !, admitted therein being at the scene of crime. I 5 , I 1 As already stated the first appeal icourt upon re-evaluation of the I • evidence came up with a finding that bo~h appellants were guilty of gang rape. Commenting on the evidence of P~4 the learned trial judge said: I! I I ''according to the evidence of this witness, If when the first appel/an1 was raping the 'victim of the offence, in thJ confined room, the l Ii second appellant was at all material time 1,i ' I Placed outside the hbuse to prevent any I! :1 ' possible invasion from Ithe people who were I searching for the victirJ;, of the offence. This evidence is not challenJed 11 by any of the appella~ts in their deferlce. In i my view, the second afpellant had knowledge ! of the rape and by gu~rding the premises for i purposes of protecting/ the unlawful act of the I ,j 1 first appellant, he mu~t have by all intent and I I I purpose. abetted the commission of the Ii offence, hence the h1{o appellants committed ' the offence of gang ~ape as envisaged under 6 the new section 131A (1) of the Penal Code, • read together with sections 7 of the Sexual offences (Special Provisions) Act. " Coming to the grounds of appeal, the appellants chose to first hear the response from the learned Senior State Attorney for the respondent /Republic before elaborating their grounds of appeal. On his part, the learned Senior State Attorney supported the conviction and the sentence that was imposed. Arguing on the grounds of appeal by both the appellants generally, Mr. Rwabuhanga said the offence of gang rape was proved against both appellants. Giving a review of the evidence, the learned Senior State Attorney said the evidence on record shows that PWl was without her consent, which was immaterial anyway, given her age, which was 14 when the offence was committed, was forcefully raped. He said her evidence was corroborated by that of PW3. On the role played by the appellants, the learned State Senior Attorney said they both participated in all the events leading to the commission of the offence. Commenting on the defence of the first appellant that he married the complainant, the learned Senior State Attorney said that such manner of marriage, characterised by force, assaults that included the complaint's 7 ~ l mother, (the first appellant's in-laws if that 1was the case), the commotion ,: I! , and the rest of what was unpleasing, ~re not known , in marriages. I, ' I' Normally marriages are events which ~:re celebrated i'n happy and respectful atmosphere. I ,1 As for the first ground of appeal by ~he first appellant, the views of I i: the· learned Senior State Attorney were that it had no merit because PWS II II was not related to PWl, and even if that ~ad been the case, the law does 11 ,,' not forbid related witnesses from testifir>'ing. On the question of the I. 11 evidence of PWl being not supported by medical evidence to prove the I I, 11 rape, the learned Senior State Attorney said it was not necessary and Ii I 11 i moreover, there was a re-evaluation of the evidence on first appeal, and I' the court was satisfied that the evidende on record to ,prove rape was I I sufficient. He specifically referred to the ~vidence of PW4 which explained JI the situation on the ground when he we~t to the scene of crime that there 11 I: was commotion and the atmosphere was 1l'not peaceful. I 1: I As regards the age of the secondJ appellant that he was a juvenile I I when the offence was committed, the l~arned Senior State Attorney said I! I 1· the provision of the law under which t~e charge was preferred does not I 8 I 'I exempt him from the punishment that was imposed. He prayed that the • appeal be dismissed. In response to the submission made by the learned Senior State Attorney, the first appellant insisted that he did not rape the complainant. He even went to the extent of renouncing the defence he made during the trial, claiming that the court recorded what he did not say. He also wondered why the other villagers said to have witnessed the rape did not turn up to testify. He prayed that the appeal be allowed. The second appellant on the other hand reiterated that he was innocent. He said he knew nothing about the offence. Moreover, said the second appellant, there was no evidence to support the complainant that he suffered any injuries. He said at the time the offence was committed, he was still a student. He prayed that the appeal be allowed. The first ground of appeal by the first appellant was that PW1,PW2,PW3 and PWS were close relatives and the likelihood of fabricating evidence against him was big and so their evidence required corroboration. It is true PWl was the complainant. PW2 was his brother, PW3 was her boyfriend but PWS was not related to PWl. He was a 9 . "sungusungu" who went to the scene of cri:me with PW4. Moreover, there 11 1, ' ~ is no law which forbids relatives from testifying in a case.. In terms of ! section 127(1) of the Law of Evidence Act [CAP 6 R.E.2002], what matters I is the competency of that witness. So lonb as the witness· saw what took I' I place, he/she becomes competent to testjfy. See section 61 of the same 11 Act. Whereas PW2 and PW3 testified on Mow PWl was forcefully taken by I' I• the appellants to the residence of the firs, appellant, PW4 said he went to I the scene of crime and the first appellant and PWl were locked in the 1, 11 ' house while the second appellant and ot~er persons wen~ vigilant outside 1, to prevent interruption of what was /taking place inside. Although Ii I corroboration was not in this case require~, it was abundant. We therefore 1, Ii I agree with the learned Senior State Attorihey's submission that this ground I, lacks merit. I I I As for his second ground of appeal /:we entirely agree with the learned 1, State Attorney that a medical report b~: a doctor to prove that PWl was I· I I raped was not necessary. It is not th~ medical report which proves the I 11 offence of rape. In the case of Sele"?an Mkumba Vs R CAT Criminal I! I Appeal No.94 of 1999(unreported), the/ Court said:"the evidence to prove I I rape is that of the victim herself, an ad~lt where consent was required, and I , 10 I j, I • where it is not an issue, any other woman". At the time the appellant was I "" raped she was fourteen, consent is not an i:ssue. But apart'from that, the - first appellant admitted in his defence1! that he was marrying the I 1, complainant. He locked the complainant in his house and remained with I I, I her inside until when the police went to ar~est him. All the, time PWl kept on crying seeking for assistance which s~e did not get before the first appellant raped her. Under the circumstlmces there was no need for a i,i' I' medical report to corroborate the evidence of the complainant because the I I first appellant had made his motive of for~efully taking the complainant to I his house known. This ground too has no 1 ~merit. 1 1, Regarding his third ground of appeal, that PW4 being a police officer I 1: should not have been believed because /the role of police witnesses has I 1, always been to look for convicting eviden~e, we must outright say that this 1, I' is an allegation which is unfounded. i" There are many cases in which I I police witnesses testify, and the accuse~ are acquitted. What the court I, Ii looks at is the credibility and the value pf the evidence of the witness and ,: I, not his/her personality. Moreover, h~ was not the only witness who I: i testified on what took place at the scerle of crime. Ndariyagile Emmanuel )I 11 I I I I I'. I /i I I _I (PWS) and Evarist Mnete (PW6) also testified on. the commbtion and the assaults that were taking place at the scene rf crime. The e~idence on the record is that the situation was bad and eve1 some people loF their lives. I I The first appellant's last ground of appeal also lacks merit. We reiterate what we have already said in res~ct of the preceding grounds. f I As for the second appellant his majir complaint is ;hat he did not participate in the actual act of raping thJ complainant arid the sentence that was imposed on him was excessive./ True, there Jas II no evidence , I that the second appellant participated in tHl'e actual act of rring PW1. I In substituting the offence of gang j!ape for that of r~pe , the learned ! i judge on first appeal stated that the !second appellarlt was convicted . I because of abetting the commission of Jhe offence by t~e first appellant. Section 131A (1) of Cap 16 under w~ch the appella~ts were charged /: i reads: I I I I ! i I I I I 12 f I, I I I I I I ' I ' I I I .I I ' I .J I i i i i I • ! I I I f "Where the offence of rape is co,t,mitted by on I 11 i . i or more persons ,n a group of persons, eac,, ,1,, I i l I i I person in the group committing br abetting the 1 I commission of the offence is deJmed to have I i committed gang rape. " Under sub section 2 of section 131A 61) it is providedkhat: I i 1 i ''Every person who is convicte~ of gang rape ;shall .\ I I . be sentenced to imprisonment/ for life, regardless of I i the actual role he played in thJ rape. " 1 \ I The learned judge on first appeal dit observe that, tfom the evidence I, ; on record, particularly that of PW4, Corppral Joseph, as ~he first appellant I I 1 was inside his house with PW1 raping her, the second appellant was II among the persons guarding the housJ of the first appellant outside in l i order to ensure that the unlawful j act of the appellant was not 1/ I · interrupted. As we have indicated abo~e, a person wHo aids another to . I !1 ; I • commit the offence of rape, under sect1on 131A (1) Cap 16 1s deemed to 1 II ! /I i 13 I I f i ; I i I I i I '41 ·r i !I I [ I I . ,. I . I have committed the offence of rape. Sin~e the first app111ant was not I I 1• alone when he committed the offence of rap6, he was aided :by the second I I · appellant, both appellants were rightly con~icted of the offence of gang I I rape. Regarding the sentence that was imfsed on the se9ond appellant, the provisions of section 131A (2) do not 1ake any discrimiination on age I Ii when sentencing the convict. The senten~e imposed was Imandatory for i Ir that offence. The court had no discretion td impose any other sentence. i i Under the circumstances the appeal/: by both appell,nts lacks merit and it is dismissed in its entirety. I I I I . i I DATED at TABORA, this 5th day of Ndvember, 2009. I i i I I N.P. KIMA~O I .. i I JUSTICE OF APPEAL I M.S. MBARQUK I J I I i I JUSTICE OF ~PPEAL I I I S.A. MASSATI i I JUSTICE OF APPEAL I ' I I I I I I I I I I I I 14 I I I i ! I II I I I I