rashid omary vs republic 2009 tzhc 176 3 august 2009

IN THE HIGH COURT OF TANZANIA AT DODOMA DC. CRIMINAL APPEAL. NO. 136 OF 2008 ORIGINAL CRIMINAL CASE NO. 325 OF 2005 OF SINGIDA DISTRICT COURT AT SINGIDA RASHID OMARY.................................APPELLANT VERSUS THE REPUBLIC.................................. RESPONDENT Date of Last order: 28.5.2009 Date of Judgment: 3.8.2009 JUDGMENT Hon. G. J. K. MJEMMAS, J.: The appellant Rashid Omary was charged, prosecuted and convicted of the offence of rape contrary to sections 130 (1) and 131(1) of the Penal Code, Cap. 16 of the Laws as amended by Act No. 4 of 1998. He was sentenced to serve a term of thirty (30) years imprisonment. * The appellant was aggrieved hence the present appeal before this court. The facts giving rise to this matter can be stated as follows. On 28 September, 2005 at around 7.30 in the morning PW1 - Mwajuma Bakari was going to a well [Kisima] and on the way someone touched her from the back. She. looked back and saw the appellant and asked him why he was touching her without even speaking a word. The appellant did not reply instead he kicked her and she fell down. He took off her underwear and raped her. PW1 shouted for help and one Kagondi s/o Itandu ([PW2) responded to the alarm. When PW2 approached the scene of incident he saw the appellant who is his uncle was on top of PW1. The appellant then ran away. PW2 advised PW1 to report the matter to the Village Executive Officer. PW1 did as advised and she was given a letter to go to hospital for treatment. The appellant was arrested and charged accordingly. The appellant has filed a lengthy and repetitious petition of appeal . During the hearing of the appeal he appeared in , person and unrepresented. Apart from adding one more complaint he did not have anything to add to elaborate his appeal. The respondent the Republic was represented by Ms. Mwanda, learned State Attorney. The learned State Attorney supported the conviction of the appellant and challenged the appellant’s grounds of appeal as being baseless or without any merit. 2 On the complaint that there was no sketchmap of the scene' of incident which was produced in court, the learned State Attorney stated or replied that it was true that there was no sketchmap produced in court but she stated that.the offence with which the appellant was charged with did not require a sketchmap to be produced. She said that the appellant was charged with rape and its proof did not necessarily require a sketchmap to be produced. If it were produced, she said, it would have added some weight to the case but its non production did not affect the case against the appellant. I think I am in agreement with the learned State Attorney that this complaint has no merit. The appellant was charged with rape so what was important for the prosecution was to prove that the appellant had sexual intercourse with the complainant without her consent. That does not necessarily require a sketchmap of the scene of incident to be produced in court. I therefore dismiss that complaint. The appellant has also complained that the victim (PW1) failed to mention his name. Ms Mwanda replied that the complaint has no merit because the record- shows that the- • • • ’ 'V* ' victim knew or had seen the appellant before dnd that PW2 knew him (appellant) by name and he is the son of his aunt. 3 Again, I think this complaint has no merit because the proceedings show that the complainant had seen the appellant betore at Njia panda of Makiungu area. Also PW2 knew him by name and that he is his uncle. Another complaint of the appellant is that the Village Executive Officer was not summoned to give evidence. Ms Mwanda submitted that the complaint has no merit because under section 143 of the Evidence Act there is no number of witnesses required to prove a fact and that the witnesses who were produced in court were enough to prove the case against the appellant. I am in agreement with Ms Mwanda that in law there is no specific number of witnesses required to prove a particular fact. What is important is the credibility and reliability of the witness who is summoned to testify in court. Of - course sometimes it might be necessary to produce a given witness and failure to do so may entitle the court to draw an adverse inference that if the said witness were produced in Court he would have given'unfavourable evidence. However, in the present case, I don’t think that failure to summon the Village Executive Officer prejudiced the case 4 against the appellant. This ground therefore fails and it is hereby dismissed. As regards the complaint on the PF3, Ms Mwanda conceded that the doctor who filled it was not called to testify. She, however, stated that the main thing to look at is whether in the absence of the PF3 is there sufficient evidence to prove the case against the appellant? In her opinion the evidence of PW1 and PW2 is sufficient to prove the case against the appellant so the complaint has no merit. I will come back to this ground/complaint later. The appellant complains also that the witnesses were not sworn/affirmed. I think this ground has no merit and should not detain us. As correctly observed by the .learned State Attorney the proceedings show that the witnesses were affirmed before giving evidence. The appellant is also disputing his identify in that he was not properly identified at the scene of incident. Ms Mwanda submitted that the appellant was properly- • identified in accordance with the principles laid down in the case of Waziri Amani VR. [1980] TLR 250. 5 I think the appellant was correctly identified and there was no room for mistaken identify. First, of all, the victim, that is PW1 stated that she had seen the appellant before at Njiapanda of Mkakiungu area. Second, PW2 stated that he is related to the appellant who is the son of his aunt or rather the appellant is his uncle. Third, the incident'took place at 7.30 in the morning so the condition was favourable for identification as it was day time. Fourth, since the appellant touched the victim, (PW1) and lay on her waist so she. had time to observe him closely. Fifth, PW2 stated that he saw the appellant on top of PW1 while at a distance of ten (10) paces. It is for those reasons that I think the appellant was well identified and his complaint has no merit. The appellant has also complained about hearsay evidence and lack of corroboration but as correctly observed by Ms. Mwanda, learned State Attorney there is nothing like hearsay evidence because PW1 stated what had happened at the scene of incident and her evidence was corroborated by PW2. On the complaint that the judgment of.the* trial court did not comply with the requirements of section 312 of the Criminal Procedure Act, 1985 Ms Mwanda replied that the complaint 6 has no merit because the judgment meets the conditions of section 312 of the Criminal Procedure Act, 1985. I have gone through the judgment of the trial court and I am satisfied that it complied with the requirements of section 312 of the Criminal Procedure Act, 1985. The judgment shows the offence which the appellant was charged with, the points for determination, the decision and reasons for the decision. The appellant was found guilty and convicted accordingly. The judgment has been signed and dated by the trial Magistrate. The judgment has also indicted that the sentence of thirty years which was imposed on the appellant is the minimum one. I therefore dismiss this complaint. With regard to the complaint that PW1 and PW2 are relatives the learned State Attorney submitted that there is nothing in law which prohibits relatives from giving evidence on what they witnessed, and that the record shows that PW2 is related to the appellant not PW1. I think what Ms Mwanda said is the correct position of the law. In the case of Daudi Shilla V The Republic, Criminal 7 Appeal No. 117 of 2007, Dodoma Registry (CA) [Unreported], Kimaro, J. A. stated; " As regards the appellant's complaint that it was only family members who testified against him the only observation we make is that it is good to have an independent witness testifying, rather that only family members because that removes the likelihood of fabricated evidence. However, that is no the law. In law what matters is the credibility and reliability of the witness who is called to testify... We will also add that the question of who will testify in any trial is also dependent on the circumstances under which it was committed. Obviously if the offence is committed in the presence of only family members it cannot be expected to have witnesses who know nothing about the offence to testify section 127 (I) of the Law of Evidence Act [CAP 6 R.E 2002] makes clear the witness who are competent to testify." So the complaint by the appellant that PW1 and PW2 are relatives has no merit and in actual fact the record shows that PW2 is related to the appellant not PW1. On the complaint that the incident took place near the residence of people but no other people who came to testify, the learned State Attorney stated that she left it to the court to decide because the record is silent on that aspect. From the record it is only stated by PW1 and PW2 that the water well is about 300 - 500 metres from their houses. There is no evidence to show the distance from the residential area to the scene of incident so it is difficult for this court to say whether other people heard or did not hear the alarm raised by the complainant (PW1). The only witness who said that he heard the alarm or voice of a woman shouting for help is PW2. Another thing is that, as stated before in this judgment what matters is not the number of witnesses but their credibility and reliability. In addition to that, if there was evidence that so many people arrived at the scene of incident and only PW1 and PW2 were called to testify one would have raised some doubt but in the present case there is only one witness who responded to the alarm which was raised by the complainant. I therefore hold or find that this complaint has no merit. Goring back to the issue whether after discounting the PF3 there is enough evidence to uphold the conviction of the appellant, I have the following to say. In the case of Daudi Shilla (Supra) the court of Appeal referred to its earlier decision in Seleman Makumba Vs. R, Criminal Appeal No. 94 of 1999 (Unreported) where it said - 9 "The evidence of rape has to come from the victim/ if an adult that there was penetration and no consent..." In the present case PW1 explained how the appellant touched her neck, kicked her and that she fell down. The appellant turned her or rather made her to lie on her back and took off the complainant’s (PW1) underwear by force and raped her. Let PW1 speak for herself. “While I was on my way, suddenly I was touched on my neck at my back, when I turned my neck I saw the accused person one Rashid Omary - The accused. I asked him why are you touching on my neck without even talking? However he didn’t reply anything. Then “alinipiga ngwala" and I fell down. When I fell down lying on the ground “kwa upande wa ubavu". While on the ground the accused turned/twisted me in such a way that he could rape me easily (alinigeuza chali). Later on the accused, “alinikalia kiunoni”. Then the accused put off my gauni up to my stomach, and he took off my underwear (chupij and destroy it then he made/ had a canally knowledge with me using force.” 10 She went on to state “By the time the accused was raping me, I was raising alarm so that I could get an assistance. When I was raising alarm one person called Kagondi s/o Itandu came to the scene, and before he came closer I told the accused person to leave me alone, but I remember that the accused ejaculated one time (mara moja).” From the foregoing I am satisfied that the evidence of PW1 meets the test laid down in the case of Selemani Makumba VR (Supra) and Ex - B 9690 SSGT Daniel Mshambala, Criminal Appeal No. 183 of 2004 (CA) Mwanza Registry (unreported) in that. PW1 clearly stated what happened and she did not make a general comment that she was raped. Her statement that “appellant took off my underwear and destroy it then he made/ had a canally knowledge with me /using force'1 shows that there was penetration and without her consent. The evidence of PW1 is corroborated by the evidence of PW2 who stated that, I quote him. “When I was on m y'w ay to the said w ell I heard a voice of a woman ■which was saying' “Nyonyi niache” please Nyonyi leave me alone. The said Nyonyi is this one the accused. When I heard the 11 said voice, then I started to look here and there, suddenly, I saw the accused lying on top of the victim. Thus upon seeing me the accused “alivaa suruali yake” and slowly he took to his heel and ran away in the bushes. When the accused ran away, I went to the scene of crime and found one underwear (chupi) yellow in colour was lying just around the helpless woman.” I therefore hold that the evidence of PW1 and PW2 is sufficient to prove to the required standard that the appellant committed the offence of rape against PW1. This appeal therefore fails and it is hereby dismissed. Order accordingly. 12