20111013 TZHC Dodomo

. . - - - - -- -- - - - - - - - -.: . ·;·. -:: ... . ;;•·: IN THE HIGH COURT OF TANZANIA AT DODOMA, APPELLATE JURISDICTION ,, (DC) CRIMINAL APPEAL ~O 82 OF 2011 • .· .', 1 •· .. (Original Criminal Case No151 of 2005 of the District Court of Iramba District At Kiomb.Qi): :.-/·.. · · . ·.· ~- •;\_ •l~:••,i ~: • ••,:t.,~~,' MAHENE MASEMBA. ..............................•.. ~ ..-. . ~·!.APPELLANT '?)·:·.··•.1• -: . VERSµS.· . ... . THE REPUBL.IC .....................·...·..... ~ .............. RESPONDENT JUDGMENT. 10/10/2011 & 13/10/2011 . . .: . . ,· '.··· KWARIKO, J.::_, . : . _..-: ... _·.. ·. . .. : . . The. appell:arit: herein was formerly charg_~d' With. the offence of Rape c/s 130 (2) and 131'.of the Penal Code Cap.: i-6-\/~I i of the Laws R.E. 2002. It was alleged- by_~ttie prosecution that the appellant''did on the 12th day of August, 2005 ·at . ·about 15.00 hours at Kinambe!,.1,-·-village within Iramba District in Singida Region have sexual intercourse with·one ELIZABETH D/0 PAUL without her consent. The appellant had denied the charge. During the trial the complainant ELIZABETH D/0 PAUL, PWl told the court that she had gone to collect firewood on the material day and when she was tying up the same together the appellant appeared and demanded money from her. PWl said had no money and the ·appellant told her that would have sexual intercourse with her instead. The appellant took the axe PWl had and raised it up against her where he ordered her to lie down and undress and she complied. The appellant unzipped his shorts and laid on top of her, inserted his penis into her vagina and ejaculated. He ordered her to stand-up, searched her gown for money but got none. When the 1 ·-· .. , 1• .., ... e . ·.. .- . . ·: . ·.· ::·. ·, . , appellant was searching for.money PWL escaped·and raised alarms when her · village mate REUBEN PETER, PW2 wh·o ·was tending cattle came to the scene ahd helped her to raise alarms. . ELIZABETH GUNDA and BONIFACE SAMSON, PW3 and many others came to the scene. The appellant was chased and arrested and was sent to the Village Executive Officer and then· to the police. PWl was given a PF3 to go the hospital. This was admitted in court as exhibit Pl. PWl's gown was also admitted as exhibit P2. In his defence the appellant testified that, on the ·ma.teria.l date he left his home village Nyahaa to Nkungulu cattle· camp and passed through Kinambeu Village where one Danford Magingu called him .._; The appellant once intended to:· many Magingu's daughter hence he invited him to have food but he declined the offer as· he wanted to re_9 ch the camp early. After · he crossed Kitundu river he was<~rrested, _by five::youths. who took away his Tshs. 70,000/=. · He was sent to··. Kinambefu;vil.l_9ge·: where he found people gathered in answer.to PW l's alar,,:,s, ... , . ·. ,:··' Upon seeing. him Magingu said could fix him in tevenge for refusing to many his daughter. He denied . the. allegc;3tion .. ·:and discredited the prosecution's evidence as being contradictory;. '.<He how~ver said could not have raped PWl as she was too old for him. <:. · , · ·: :. · At the end of the trial the court found that the charge was proved against the appellant beyond reasonable doubt hence was found guilty, convicted and sentenced him to thirty. (30) years imprisonment with corporal punishment of twelve (12) strokes of a cane. An order of compensation to PWl at a tune of Tshs. 200,000/= was also made. The appellant was not satisfied with the trial court's decision hence . filed this appeal where he raised about four ( 4) grounds of appeal which raise three main points of complaints as follows: Firstly; that, the trial court. erred to admit the PF3 in contravention of the law, Secondly; that, the tri_al court erred to act on a contradictory prosecution evidence and thirdly; that, the trial court erred to ignore the defence evidence. / t 2 ~j;;-:,,,,.,_.,., - -- - 0 ' '. ; . 0 During the hearing of the appeal the appellant did not say anything substantial but only implored the court to consider his grounds of appeal and allow the same. On the other hand the respor;,dent Republic was represented by Ms Magesa learned State Attorney who supported the appeal. Her reasons for supporting the appeal are· not different· from the appeallant's some of his grounds of appeal. Ms. Magesa c;:oncluded that the prosecution case against the appellant did not pr:ove · his .guilt beyond reasonable doubt. I will refer to Ms Magesa's subm·ission soon; · ·. ' . This court has ..gone through. the trial court's record, the grounds of appeal and the ?Ubf"T'!iss·ion ln :cou'rt. by the learned State Attorney and it is of the considerediopinio~ that ttie ·prosecution- case:.-~t-.the trial did not prove the appellant's guiit to the standard reqµired \f}i law. 'The following are reasons for the:foregp,ne consention. : , Firstly, as rlghtly complained by both parties, the trial court erred to admit the PF3 (exhibit Pl) in contravention ot::mandator.y . . provision of the law under section 240 (3) of the Criminal Proce:c_tvre A_ct Cap. 20 R.E. 2002. This law obliges the trial magistrate to inform·: the accused of his right to have the medical officer who authored a medical report (the PF3 In this case) to be summoned for cross-examination. This was a fatal irregularity which makes the PF3 incompetent before the court and it is hereby expunged from the record. This court further agrees with_ the parties that the prosecution evidence contained serious contradictions which discredits the whose case. The record shows that while PWl testified that after the r.ape she raised . alarms and people responded to the scene of crime including PW2 and PW3 •. and then, they chased and arrested the appellant, PW2 and PW3 testified .· that PWl found them home while raising alarms where she said had bee_n' raped. People gathered and went to the scene before they looked for the rapist and arrested .him at Kitundu river, this happened to be the appellant r-· herein. This contradiction shows that the witnesses were not telling ,the r' whole truth and this creates doubt on the prosecution ,case. ,_-, 3 I' , I .. J (I)/.~ Y Another contradiction is that while PW2 said· that after the appellant was arrested he denied the allegations but PW3 said that the appellant admitted the allegations soo_n after arrest. The trial court ought to have highlighted and considered these serious contradictions and rule out if the same went to the root of the matter (See MOHAMED SAID MATUlA [1995] TLR 3). Had the court considered these contradictions it could have found that they created doubts on the prosecution case. Most importantly, the identity of the rapist was not ,proved by the prosecution. The evidence shows that PWl said she was rape by a "MSUKUMA" which shows that she did not know her rapist before. Thus, when the people set on to look for the 'rapist had no any in mind but only a 'MSUKUMA' therefore whoever 'MSUKUMA·, came their way he was their intended target~ .• This is what happened_ to the _9 ppe.llant who was found along the search° party's way and was arrested/::-:'pw2 sa~d the complainant PW1 canie to . identify the appellant. at. the , /ilfage office after he was arrested. PWl could .:not have identified the appellant negatively since the search. party had m:ade her situation easy. This was a fit case for an identification parade. However, no police officer came to testify in relation to this case and explain why the appellant was. _implicated and what did he say upon interrogation at the Police Station. Either no any village leader came to testify in relation to this incident· or the alleged appellant's admi~sion of the allegation at their level. This adversely impacts the prosecution case. However, the court agrees wi~h the learned State Attorney that the trial court considered the defence evidence contrary to what the appellant complained in his grounds of app~al. The trial court found that the defence did not raise reasonable doubt in the prosecution case. Thus, this complaint is baseless and it is rejected. The court further agrees with the learned State Attorney that the differences in the material date in the facts adduced during prelimina~~ hearing and in the evidence in court to be 18/8/2005 and 12/8/2095 , . r" r--.. ' 4 . .. .·_. .:..... ·i. \ .. . ..... -- _. ------· .. -- .. .+---~- ·.: .--:,..------- -'-<-( . - - ~ - --- ------ - --------- -------- -- - --- 0 i" . . . /. . . ' . . . .. . : . . 1 ~, ✓ . :•_·:.-,:. ·. . 4 . O • " (respectively, adds to the doubts in the prosecution case already high Iig hted · above. For the foregoing therefore, the co1:,1rt finds that the prosecution case did not prove the appellant's guilt beyond reasonable doubt hence the appellant's appeal is allowed, conviction quashed and sentence is set aside. The order of compensation is also set aside. Finally,._-the appellant is ordered be released from custody unless to othe.rwise he· is lawfully. held. It is ordered accordingly. .· ..... ··. JUDGE 13/10/2011 · ... DELIVERED AT DODOMA 13/10/2011 Appellant: Present For Respondent: Ms Magesa State Attorney C/C: Ms Komba ~-:a~(~~:s;►<---~·. / _ / '. • .• ,. I ,. , • \• , p·/ ·-,,," :·. '."·, ·.\'-..A[W..--- r fi ~ -?f5!·, ..... •·,(M.A~ KWARIKO) ·; ;PUDGE . '.: \. -;__ . />l:'3/10/2011 °':.. • :;,.:A•·· ....lf.f. -~·: ·:....-,..... ~~ ~ 5