20100830 TZCA Tanga

P.. IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: MAKAME, J.A., MUNUO, J.A., And KAJI, J.A.) CRIMINAL APPEAL NO. 27 OF 2005 JOSEPH BEFNAR.D............ p ......p ........span...... p.... a ..APPELL1NT AND THE REPUBLIC ................................................. RESPOF'IDEI'll (Appeal from the Judgment and Decision of the High Court of Tanzania atTanga) (Mkwawa, 3.) Dated the 1st day of February, 2002 In Criminal Appeal No. 75 of 2001 I .I.. ...... ....... a...... ... I •UUlPINUpp •S JUDGMENT OF THE COURT: 26 June, 2006 & 22 October, 2007 MUNUO, J.A.: I ' n uie_ E' our [rm[;..j -— —L - appellant, Joseph Benard, was convicted of robbery with violence c/ss 285 and 286 of the Penal Code, Cap 16. The trial court sentenced the appellant to a term of 15 years imprisonment and also - ordered him to pay Sh.10 1OOO/cQmpensation-to4hecomplainant.---- - leave the "pombe" shop, present at her house. She cooked food and after they had eaten the food they slept, had sexual intercourse as they had agreed, and the appellant spent the rest of the night there. The appellant promised to pay the complainant Tshs 30001= later on. He left in the morning and went to his residence but he was arrested later on an allegation of committing rape to the complainant. The appellant did not change his defence at any given time in the trial. The trial court convicted the appellant because it believed the evidence of the complainant. It also relied on the PF3 form which the complainant tendered and was admitted in evidence as exhibit P1. What is shown in exhibit P1 is that the complainant was examined and found with bruises in the vulva, sperms and blood. The appellant's conviction to the High Court was sustained basically on the evidence of the complainant PW1 that she ran to the residence of PW2 at night while she was naked and crying, and what she earlier on told 4 4 the court on how the appellant gained access to the house of the complainant and how the sexual intercourse took place. At the hearing of the appeal, Mr. Mkata, learned advocate, appeared for the appellant while Mr. Michael Luena , learned Senior State Attorney, appeared for the respondent/Republic. The learned advocate for the appellant opted to argue in support of the grounds of appeal seriatim. Mr. Luena, on his part supported the appeal and responded first to ground 3, then 1, 2 and 4 jointly, and lastly ground 5. In support of the first ground of appeal the learned advocate for the appellant said the evidence of PWI, was not credible because she failed to point out clearly how the appellant gained access to her house. Although PW1 said it was a padlock which was broken, the learned advocate contended, this evidence was not supported by PW2 who said she visited the house of the complainant on the next morning and found out that it was the inside shutter which was broken. On whether the complainant earned advocate, this discrepancy in the evidence of the two witnesses tends to support the defence of the appeUant that he had a consented sex with PW1. He prayed that this ground of appeal be allowed. - As he made reference to the case of Idd Shaban V R Criminal Appeal No. 111 of 2006 CAT (unreported) the learned advocate supported his second ground of appeal, faulting the trial and first appellate court for failure to consider the defence evidence on the factual situation that took place between her and the complainant. He said the appellant's defence was brought in evidence in support of the prosecution case and it ought to have been considered in favour of the appellant who maintained that the sexual intercourse between him and the complainant was consented to. On ground 3, the learned advocate for the appellant submitted that the appellant was entitled as of right, under section 240(3) of the Criminal Prosedure Act, to have the doctor called as a witness for cross examination on the PF3 form which was produced in court as exhibit P1. He relied on the case of Jackson Mionga V R Criminal Appeal No. 200 of - 20QLCATu.nreported-)__ - 7 .-.. .. _i__'_•'_' .- - The submission of the learned advocate for the appellant in support of ground 4 was a reiteration of what he said in respect of ground one. He could as well have combined the two grounds instead of separating them. In support of the ground of appeal on the compensation order, the learned advocate said the appellant was entitled to be heard before the court made the order for compensation of Tshs 300, 000/. He prayed that the appeal be allowed, the conviction be quashed and the sentence and the compensation order be set aside. As already stated above, the respondent supported the appeal. The response by the learned Senior State Attorney in respect of ground 3 of the appeal was that there was no compliance with section 240(3) of the Criminal Procedure Act. He doubted the authenticity of exhibit P1 because it does not show the hospital where PW1 was attended and the doctoç, who attended her. It does also not bear the stamp of the hospital. -. findings are unreasonable, perverse, were arrived at as a result of misapprehension, of evidence or in violation of a- principle of the law. On the PF3 form, we must outrightly point out that this ground of appeal has merit. It is not shown anywhere in the record of appeal that the appellant was informed of his right to cross-examine the doctor who examined the complainant and then fill the PF3 form. Section 240(3) of the Criminal Procedure Act makes it clear that the trial court has the duty to inform the accused person that he has a right to have the doctor called for cross- examination. In this appeal the appellant was not informed of such right. There was a violation of the principle of the law. The list of authorities on this point is a long one, and the case of Idd Shaban @ Amasi (supra) cited to us is among them. Moreover, the evidential value of exhibit P1 was wanting because of doubts in its authenticity. The learned Senior State Attorney pointed out correctly, that it does not show the name of the hospital where the complainant was referred to for examination, it has no stamp of any hospital and the signature of the doctor who examined her is doubtful. Given the defects in exhibit P1, it could not be safely relied upon as forming the basis of the conviction of the appellant. It is hereby __exp.unged1ro.m_th.e-r-ecord-- Mr.Luena submitted in respect of grounds 1,2 and 4 that there was no dispute that the appellantand the complainãntdidhaVè sex. The Only issue in this appeal is whether or not the sexual intercourse between the appellant and the complainant was consented to. His observation was that this issue was also raised in the High Court. In his opinion the evidence to support that the sexual act between the appellant and the complainant was voluntary is found in the caution statement of the appellant which was tendered and admitted in court as exhibit P2. Both the learned Senior State Attorney and the learned advocate for the appellant submitted, correctly, that the only issue in this appeal is whether there was consensual sexual intercourse between the complainant and the appellant On our part we have no difficult in determining this point. The caution statement of the appellant, exhibit P2, was tendered in evidence in the.tPia! court by No. E. 8812 D/CPL Jonathan (PW3) By tendering exhibit P2 it tthatthë pro Jtidnwa lyindñ -- -o :---------------- ---.-..-..-----.-.---- -_-r---•_____ dispute having sex with The appellant. Throughout he stOod to his-word that the sexual act was consented to by the complainant. If this was the: position how could the two courts below say that the prosecution proved that the offence of rape was committed? In the case of Iddi Shaban © Aman (supra) the appellant was charged with the offence of rape contrary to section 130(1)(3)(a) and 131 of the Penal Code. He was convicted by the trial court and the first appeal court sustained the conviction. In convicting the appellant the trial court had relied also on a caution statement (exhibit 134) made by the appellant to the police wherein he said the sexual act was consented to by the complainant. The Court, in allowing the appeal by the appellant said: "If the prosecution sincerely believed that the appellant raped PW1 on 2 April, 2001as alleged in . the charge sheet, then it ought not to have introduced evidence to disapprove this allegation. The appellant never disowned exhibit P4 neither at the time it was being admitted in evidence nor his de/enceExhibitP4 .he/ng_partofheprosecutkn- - . , . case, binds the prosecution and renders the charge against the appellant preposterous." Even at the preliminary hearing, among the matters which were agreed upon by the prosecution and the defence were that 'on 25/11/2006 at about 29.00 hrs the accused and the complainant were at Meli Local brew shop. The accused brought the complainant two litres of brew and gave her Tshs 200/=for meat. These facts tally with the appellant's caution statement. Another fact which discredit the complainant is the conversation that she said took place before the appellant raped her. Under normal • circumstances a person intending to commit a crime which he would, not like to be detected would not take such a long period before committing the offence. Even the evidence of PW1 is in varianc with that of PW2 on how the appellant gained access into the house of the complainant. The complainant said it was the padlock which was broken but PW2 said it was the inner shutter which was broken; • '' - •. • 12 - -.-- - On the whole we are satisfied that the inconsistence in the .prosecution evidence entit(ed.the appellant to-an acquittaL We thus allow -- the appeal,quash the conviction and set asidethe sentence In respect of the ground of appeal on the compensation order, the learned Senior State Attorney submitted that compensation for sexual offences falls under section 131 of the Penal Code as well as section 348A of the Criminal Procedure Act, [CAP20 R.E.2002] Under the said section it is the court which has the discretion to determine the amount of compensation which an accused person should pay to the victim of the crime. In his considered opinion the accused person is given a hearing when he is called upon to advance mitigating factors before a sentence is imposed on him. For this ground of appeal we need not waste time. We agree with the learned Senior State Attorney that it is the Court which has the power to determine the amount of compensation which the accused should pay to the victim of the offence. Since the appeal has been allowed,, the order of • e compensation of Tshs 300,0001= to the complainant is also set aside. It is accordingly ordered. Consequently, we order the immediate release of the appellant from prison, unless he is held for any other lawful purpose. DATED at IRINGA this 30th day.of August, 2010. E.M.K. RUTAKANGWA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL •W.S.MANDIA JUSTICE OFAPPEAL /7 \ Q \ I çit1it is atrue copy of the original. / \ V. —.--- •, J.S. M.GETIA DEPUTY REGISTRAR COURT OF APPEAL • • - 14. _________ - - - - - --.--.-- - .-- --•- Th •- •'• •