20111122 TZCA Arusha

IN THE COURT OF APPEAL r OF TANZANIA ATARUSHA t I . (CORAM: RUTAKANGWA. J.A., LUANDA, 1J.A., And ORIYO, J.A.) I CRIMINAL ARPEAL,NO. . I . " ·, 98 OF 2009 MBWANA HASSANI ............................... .:..~ .................................. APPELLANT VERSU~ THE REPUBLIC ........................................ J•••.••••••••••••••••••••••••••••. RESPONDENT (Appeal from the Judgme~t of t~e High Court of Tanzania at Arus~a) 1 (Mmilla, ::1.) : th (Dated the 11 day of becember, 2008) . in r Criminal Appeal No. 80 of 2007 _ _ _ _ _ _ _ _ _ _1_ _ _ Ii JUDGMENT OF lHE COURT 21 st & 23 rd November, 2011 RUTAKANGWA. J.A.: The appellant was arraigned of r~ping his step-daughter, one Asha . ~ 11 . 1',.1 !'.'J: Mbwana, aged 1 year, in the District; tourt of Kiteto District (the trial court). He denied the charge. After a full hearing or trial, the trial· court found him guilty as charged and conviled him accordingly. He was then . .l sentenced to thirty years imprisonlllen~, 24 strokes of the cane and was I 'I ordered to pay Tshs. 50,000/= as ·cqmpensation to the victim of the t: I offence. I .I 'I ':. ,.,. .. t The appellant was aggrieved by the conviction and sentences. He I preferred an appeal to the High Court, at Arusha. On being satisfied that the evidence in support of the charge was overwhelming, the learned first I appellate judge dismissed the appeal in its entirety. However, on finding \ ~ I the thirty-year prison sentence to be illegal, he did set it aside and imposed the statutory minimum sentence of life imprisonment. Believing to be totally innocent, the appellant decided to lodge this second appeal. iI The memorandum of appeal to this Court, drawn and lodged by the appellant himself, contains three grounds of complaint. These are, one, the two courts below erred in law in grounding his conviction on the uncorroborated evidence of a single witness who had her own interests to serve. Two, the two courts below erred in law in ignoring the I contradictions and inconsistencies in the prosecution evidence. Three, the offence of rape was not proved at 1all as the alleged victim did not testify. ··l ' I Before giving our decision on the merits or demerits of these grievances, we have found it appropriate to first look at the facts leading to the prosecution and conviction of the appellant. These facts were that the I 2 appellant was the husband of the. mother of Asha (the victim). The two were married in December, 2005, when Asha, born from a previous marriage, was only ten months old. It was narrated by the mother of Asha, one Mwajuma Ramadhani (PW1) that on 22 nd March, 2006. at about 9:00 p.m., she left the infant Asha in the care of the appellant and went to the kitchen to prepare the evening meal. Shortly later she heard Asha crying. She rushed back to where she had left them. She found. Asha with blood in her private parts. She asked the appellant what had befell Asha. He reportedly told her that she had been bitten by insects. She did not believe him. She decided to take the infant to hospital. At the hospital Asha was found to have been grievously harmed. According to the PF 3 (exh. Pl) her hymen had been torn. She also had been injured in the "perinea I region from the vagina to the anus." She was stitched and admitted in hospita~ :,for two weeks. The appellant was arrested and charged with the offence of rape. 3 The defence of the appellant was a bare denial. He told the trial court that on the evening of 22 nd MqfCh, 2006, he was at home with PWl Mwajuma and Asha and nothing unusual happened. The learned trial Principal District Magistrate after believing PWl Mwajuma's evidence and finding it to have been fully corroborated by the PF 3 (exh Pl), convicted the appellant as·charged. On appeal, the first learned appellate judge found and held that the trial court wrongly acted on exh Rl.. He was of this view because the trial court failed to comply with the mandatory provisions of section 240 (3) of the Criminal Procedure Act, Cap 20 (the Act). This provision casts a mandatory duty on the trial court to "inform the accused of his right to require the person who made the report to be summoned" for the purpose of being cross-examined. Relying on this Court's decision in ALFEO VALENTINO v. R., Criminal Appeal No. 92 of 2006 (unreported) he proceeded, very correctly in our view, to expunge the PF 3 from the record. 4 After discounting the PF3, the Judge remained with the evidence of I ' PWl Mwajuma, PW2 Omary Hassan and PW3 WP No. 3517 D/C Glory. He ;~ i ' found the evidence of PW3 Omary to be "useless" as he had said nothing ' I which could be "said was a positive contribution to the case". We have read that evidence and we are in agree~ent with the views of the learned judge. He also found, and quite rightly I in our considered judgment, the evidence of PW3 WP D/C Glory to be wanting in cogency and needed corroboration. He was then left with the evidence of PWl Majuma, who was consistently referred to as the "complainant". I I Like the learned trial Magistrate, ,·\the learned first appellate judge found PWl Mwajuma to be "a credible .witness". Relying on the case of I REPUBLIC v HASSAN SAID (1984) T.L.R 226 he sustained the conviction of the appellant. The most pertinent holding in the above cited case which greatly influenced the learned judge, as found in his judgment, goes thus:- ''In any sexual offence, if, the person against whom the offence is alleged to have been I committed is an adult, the court should warn I 5 itself that it is not safe to convict on the uncorroborated testimony of the complainant. But that if it is satisfied of the truth of the complainant's evidence if may nevertheless . t... ,, conv,c (Emphasis is ours). We have found it necessary to provide the emphasis for one obvious reason. This is that, with due respect,· the learned first appellate judge wrongly took PW1 Mwajuma to be the "complainant" which the court in HASSAN SAID's case (supra) had in mind. He forgot to note that the said complainant is "the person agairisf whd'm the offence is alleged to have been committed" and that person should be an "adult". In this particular case, "the person against whom the offence" was alleged to have been committed" was not PW1 Mwajuma, but Asha Mbwana, who for obvious reasons could not testify. Settled law is that for there to be rape, there must be penetration and, in the case of an adult complainant or prosecutrix, lack of consent on 6 ~ her part. It is trite law also that, for the ",offence of rape, ... there must be unshakeable evidence of penetratio~" . ,I (JOSEPH MKUMBWA . & ANOTHER v. R., Criminal. Appe~I Nd. ~4 of 2007 (unreported)). In the case of SELEMANI MAKUMBA v. R., Criminal Appeal No. 94 of 1999 . I (unreported), the Court unequivoc.aUy he~f thus:- . l .. "True evidence of rape has t0 come from the victim . .1 if an adult, that there was penetration and no i consent and in case of anyi'other woman where .i i consent is irrelevant .; that there was penetration. " (Emphasis is oprs). : I The case of Asha Mbwana fell i~ thef'\econd category, that is, where consent was irrelevant. I In order to prove the charge agajnst the appellant in this case, the I . prosecution had a duty to lead ')unshakeable evidence to prove .. jl ,, l penetration." There is no dispute here· that no person witnessed the 7 appellant insert his penis into the vagina of Asha Mbwana. All that we have available on record, after expunging the PF3, is the inconclusive ' circumstantial evidence of PWl Mwajuma and PW3 WP 3517 D/C Glory. Ms. Javelin Rugaihuruza, learned .State Attorney, who represented ,\ the respondent Republic, conceded the above fact. After so conceding she proceeded to urge us to allow the appeal, as a retrial in her opinion, would be quite inappropriate. She was supported by the appellant. The request by the appellant and_ Ms. Rugaihuruza to unreservedly allow the appeal has admittedly taxed our minds. This is because a retrial would not normally be ordered where this would allow the prosecution to fill in the gaps into its otherwise patently weak case. At the same time we ; are aware that it is settled law that a retrial may normally "be ordered only when the original trial was illegal or defective," but even then, "where the interests of justice require it," see, for instance, FATEHALI MANJI v. R., [1966] E.A. 334 and THE D.P.P. v. OWDEN KASANJA & 9 OTHERS, Criminal Appeal No. 305 of 2009 (unreported) . •! 8 ',,:_\; i I / I • Having studied the judgments of, the two courts below and the proceedings in the trial court, we are of the view that the trial of the appellant was not illegal. However, we have detected one defect in the trial of the appellant. This defect was the failure of the trial magistrate to comply with the mandatory provisions of s. 240 (3) of the Act. This failure or omission, as already demonstrated, ·,. led to the discounting of the PF3. In our considered view, the PF3 was a crucial piece of prosecution evidence which could have helped the courts in proving whether or not there was penetration in this case. So, did the fault of the trial magistrate occasion any injustice in this case? . I This Court in MARKO P. NZUMILA & ANOTHER v. R., Criminal Appeal No. 141 of 2010 (unreported). made it absolutely clear that "in deciding whether a failure of justice has been occasioned, the interests of ~A '1 ' ' ; both sides of the scale of justice have to be considered." We applied this principle in the case of D.P.P. v. OWDEN KASANJA (supra) and ordered a retrial. Well aware of the fact that "fairness of the proceedings involves a consideration not only of fairness to the accused but also .... fairness to the public," we are settled in our minds that the discounting of the PF3 in this 9 . . particular case, on account of a mistake not attributable to the prosecution, occasioned grave injustice to the prosecution. We hold without demur therefore, that a failure of justice was occasioned in this case. The interests of justice dem~nd that a retrial be ordered. All said and done, we allow this appeal by nullifying the proceedings in the trial court. We order that the app~llant be retried in the same court as expeditiously as possible but by another competent magistrate. DATED at ARUSHA this 22 nd day of November, 2011. E. M. K. RUTAKANGWA JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL K)k: ORIYO JUSTICE OF APPEAL 10