20110407 TZCA Tanga4

f I IN THE COURT OF APPEAL OF TANZANIA ATTANGA ,- . I {CORAM: MSOFFE, J.A., LUANDA. J.A., And MANDIA, J.~.) CRIMINAL APPEAL NO. 324 "A" OF 2009 TEKERO .BURIA ...................: ..........•............................. ~. APPELLANT VERSUS THE REPUBLIC ........................................................... RESPONDENT {Appeal from the judgment of the High Court of Tanzania at Tanga) {Teemba. J.) dated the 3.0th day of June, 2009 in Criminal Appea~ No. 83 of 2008 JUDGMENT OF THE COURT 6 & 8 April 2011 MANDIA, J.A.: On 28/10/2007 PWl Salima Rashid, a girl aged twenty years living at Michungwani Village in Handeni District was walking towards her shamba. At 5 p.m. in the evening she was at Kwaanasinga's place where she met the appellant. The appellant beckoned at her but she did not respond. The appellant had a bicycle but was not riding it. The appellant went after PWl on foot. Sensing danger PWl Salima Rashid broke into a run. The appellant chased after 2 -· Salima on foot for a brief while and then went back to collect his1 bicycle which he rode in the direction which PW1 SalimaI Rashid took. The appellant caught up with Salima and knocked her pawn with his bicycle. With Salima down the appelilant drew up clpse and gave PW1 Salima Rashid two options which were for Salim a to either to 1 i submit to sexual intercourse with the appellant or getI killed if she refused. With the option of death facing her if she refysed to submit to the sexual act, Salima agreed but gave a condition t~at the sex act I had to be done right there on the path, obviously .gearing for a I situation where any passer-by could see them and possibly save her. 1 The appellant discovered Salima's ruse and, insisted th?t the two had to go to the bush for the sex act. Salim in turn refused I to go to the bush. The appellant then tore off Salima's underpants and raped her, an act which Salima described as painful and made! her unable to wal·k afterwards. After the act, the appellant forbadeI Salima to tell anybody of the rape or else he would kill her. When I PW1 Salima Rashid reached home, however, she reported the rap e to her father 1 ' PW2 Rashid Lugendo. Rashid Lugendo · followed the ! appellant to where he stayed. Ac;:cording to PW2 Rashid Lugendq, the appellant 3 • admitted to have raped Salima Rashid and begged 'PW2 Rashid Lugendo not to report the matter to any authority. The appellant I suggested that a meeting of elders be convened to discuss the matter. In the morning of 29/10/2007 at 7 a.m. an elders' meeting I was convened comprising of PW3 George Paulo and PW4 George Mandia. Both elders gave evidence showing that the appellant I admitted to have raped PW1 Salima Rashid and offered to pay compensation for the rape he committed. Salima Rashid attended the reconciliation meeting, as did his father PW2 Rashid Lugendo. The compensation which the appellant offered to pay ~as in the form of manual labour because he (appellant) said he did ,not have any I money. Salima Rashid refused to be compensated and insisted that the matter be reported to the Police since her virginity had been i destroyed. The matter was reported to the Police and on 29/10/2007 a medical report was made (Exhibit P3) which was tendered in court I by PWS WP 4406 D/C Patricia. The appellant was then charged with rape. 4 I ., In his defence the appellant alleged that this case was a frame- up by some people he did not name who wanted to take his shamba while he was in prison. The trial District Court assessed the evidence and I found the complainant PW1 Rehema Rashid, her father PW2 Rashid Lugendo, PW3 George Paulo and PW4 George Mandia to be , credible and truthful witnesses of the events of 28/10/2007. The trial court therefore convicted the appellant and sentenced him to imprisonment 1 I for thirty years and, in addition, ordered him to pay Shs. I 100,000/= compensation. The appellant was aggrieved with the conviction ,'and sentence. I He preferred an appeal to the High Court of Tanzania at Tanga. The I High Court concurred with findings of fact made by the trial District I Court and dismissed the appeal in its entirety. Still ~ggrieved, the appellant preferred this appeal. 5 The appellant has filed a memorandum of appeal ·which raises the following substantive issues, namely:- 1. That penetration was not proved. 2. That the Judgment of the trial court c!id not assign reasons for the decision. 3. That the witnesses who testified in t(Je trial court were not credible and had an interest to serve. 4. That the trial court erred in law in acting on a medical report admitted in evidence against the dictates of Section 240 (3)' of the Criminal procedure Act. The respondent/Republic was represented in this' appeal by Mr. Faraja Nchimbi, learned State Attorney. We will start with the medical report. We agree with Mr. Faraja Nchimbi, learned State Attorney, that the medical r~port PF3 was admitted in breach of Section 240 (3) of the Criminal 'Procedure Act, 6 .. Chapter 20 R.E. 2002 of the laws. The record shows that the I appellant objected to the report being tendered in evidence but the trial court admitted the document without making any ruling on the objection. On appeal the first appellate court also ·overlooked this lapse. We are satisfied that the medical report was admitted contrary to the provisions of Section 240 (3) of 1the Criminal I ' Procedure Act. There is a plethora of authorities from this Court showing that a medical report admitted contrary to Section 240 (3) of ' the Criminal procedure Act should . be disregarded, one being ' NYAMBUYA KAMUOGA versus THE REPUBLIC, Criminal Appeal No. 90 of 2003 Dodoma (unreported). We therefore expunge Exhibit PE 1 from the record. On the issue on whether there was penetration Of not we agree ; that Section 130 (4) of the Penal Code requires that penetration must be proved as an ingredient in a charge of rape, as has been held in this court in Mathayo Ngalya @ Shabani v Republic, Criminal Appeal No. 170 of 2006 (unreported) where this Court said:- 7 . "The essence of the offence of rape /s penetration of the male organ into the vagina." I The moot question in this case is whether penetration was proved or not. We observe that there are no words from the I complainant mentioning the male organ of the appellant entering her I female organ, but the complainant PWl Rehema iRashid gave I evidence in which she said the appellant raped her, and that after the I rape she could not walk properly because of the pain. ~ These words put side by side with the evidence that a meeting of eld~rs was called in which the appellant admitted the rape and offered to pay compensation, which Rehema Rashid refused by saying that she I could not take money while her virginity had been destroyed, shows proof of penetration. On the credibility of witnesses, we note that the two courts below concurred on the credibility of witnesses. We h:ave no reason to differ with them in view of the fact it was the appellant himself who suggested that a meeting of elders be called ~o resolve the 8 . matter, and that it was at this meeting of elders which the appellant attended that he ( appellant) admitted committing rape ahd offered to : I compensate the victim. The complaint on credibility anql self-interest . I of witnesses therefore lacks merit and is dismissed. Lastly, the appellant argued that the trial court ~id not assign I I reasons to its decision, and the first appellate court upheld this I i default. The record however does not bear out. At page 22 of the trial court record the trial court said:- 1 I "PW2, PWJ and PW4 are all grown up people I who could be said to have any reasqns I whatsoever to tell lies before court against accused regarding the issue of requesting. ~or I I reconciliation out of court and payment I of I compensation. No one among (he I prosecution witnesses who talked of c,ny . I conflicts between them and accused. " I I Further down the trial court remarked:- 9 ''Accused talked of people to! have invaded his I I shamba . /PW2 and another, one/ 1 but then l' I when PW2 addLJced evidence he never , I bothered to ask him about the shamba he had m~~d" · / I :1 . , I The appellate High Court, at page 32 and 33 of the record I :r concurred with the observations of the frial court on th credibility of 1 the witnesses. We have no reason to:: differ. We are /satisfied that after expunging the medical report/ the evidence :remaining is supportive of a conviction. I I Lastly, the respondent/Republi c supported 1 Jhe sentence I awarded in the trial court and affirme~ in the appella~e High Court. The charge sheet shows the appellan~ to be eighteen/ years of age, and when giving evidence in defence ~he appellant gfe his age as eighteen. As we said earlier, the sentence imposed upon the :1 I ! I I appellant is imprisonment for thirty years and, in addition, an order ,: I for Shs. 100,000/= as compensation to the victim of t~e crime. This sentence. seems to offend. Section 131' (2) of the Pedal I Code which reads thus:- I I I I I ! ./ I 10 "131 (1) ... (2) Notwithstanding the provisions qt I any law, where the offence fs I committed by a boy who is of the age of eighteen years or le$s, he I shall- (a) if a first offender be I sentenced to corpo,ial punishment only; i (b) if a second time offender, be I sentenced to imprisonm~nt for a term of twelve mon~hs ' with corporal pµnishment; 1 I (c) if a third time and recidivist I offender, he shall be I sentenced to life I I imprisonment pursuant ; to subsection (1). The age limit shown in Section 131 (2) is intlusive of the I I eighteenth year, and the appellant has no past criminal record, so he I should have been sentenced in accordance with Section 131 (2) (a) I . 11 ., of the Penal Code. The sentence of thirty years imp;risonment is I therefore patently illegal. The same is set aside. In its place is I I substituted a sentence of corporal punishment. Under Section 348A ! I of the Criminal Procedure Act, as added by Section 25 of the Sexual I Offences Special Provisions Act, an order for ~ompensation I automatically follows after a conviction involving a sdxual offence. The order of compensation made in this case is therefort affirmed. I Under the Corporal Punishment Act, Chapter 17: R.E. 2002 of I i the laws, the offence of Rape is listed under Part II ofi the Schedule to the Corporal Punishment Act. Section 4 of the Act re~ds thus:- 1 • I "4. Where under this Act or under . any law I referred to in Part II of the Schedule! to ! this Act it is provided that any per4on shall be liable to undergo corporal punishment, such punishment shallr if awarded, be in accordance with the provisions of this Act. " I I For purposes of sentencing under the corporal RUnishment the I cut-off age between a juvenile and adulthood is i sixteen years I I 12 because under Section 2 an adult is described as a person of age of sixteen years and over. If Section 4 provides that a convictedI offender for rape which falls under Part II of the Corporal Punishment Act must be sentenced in accordance with the provisions of the Act, the relevant general sentencing provision is Section 8, and the1 particular sentencing provision is Section 8 (2). Sub-section (2) of Section 8 puts the maximum number of strokes to be twenty four for an adult and twelve for a juvenile and does not provid,e a minimum number of strokes. Since the law provides for the' sentence of corporal punishment as we have said above, technically we .are I supposed to award the sentence of corporal punishment. In the particular circumstances of this case, however, we have realized that the appellant has spent almost the last three years ini jail. We feel that the term of imprisonment which the appellant hasI so far served is more than the corporal punishment we are obliged' to impose on him. We therefore substitute a sentence that would result in the I immediate release of the appellant, unless he is held on other lawful I cause. 13 cj - I (' DATED at TANGA this ih day of ~pril, 2011. .I i 'I I: I J.H. MSOFFE JUSTICE OF APPEAL I i ( B.M. LUANDA JUSTICE OF A~PEAL I ·! ~~)-=~ ---- DEPUTY REGISTRAR