20110404 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM CRIMINAL APPEAL NO.76 OF 2009 BOP S/O MRISHO @KUDRA MRISHO NUNDA ......................... APPELLANT VERSUS REPUBLIC ......................................................................................RESPOND ENT JUDGMENT Date of lastorder: 17/3/2011 Date of Judgement: 4/4/2011 KARUA, J: nd The 2 day of January 2006, as fate would have it, was unfortunate for the complainant Anna Cosmas, who stood in court as PWl. I will presume, because of this incident that befell her, she will always remember this day, for the rest of her life. She and her friend Shida Issa, PW2, went to collect firewood. They are both fairly old women. They are aged 30 years. In the process of gathering firewood, the appellant, a 20 years old male, made his access to them. When the usual pleasantness was disposed off, Shida, PW2, excused herself and went in search of mangoes. Then unexpectedly, without any warning, the appellant made an onslaught on the complaint's body. The complainant fell down and the appellant hurriedly took his clothing's off and undressed the complainant. Then the appellant threw himself on top of the complainant's body and was in a verge of raping her, when there occurred some intrusion, which I shall tell. In the cause of the struggle that occurred, complainant saw the appellants' penis, thin, short and erect, when he 1 f ( I f . took his clothing's off, before lying on her body. When she cried for help the appellant shut down her mouth. Luckily, Shida, PW2, came back. She found the appellant naked on top of the complainant. She also raised an alarm. Marcus Aloyce, PW3, was attending his farm nearby, when he heard the outcry for help. He responded at once and when he arrived at the scene, he saw the appellant on top of the complainant. The appellant, noting the disruptive disturbance, that is, upon seeing PW2 and PW3, while still naked, took flight. The appellants clothing's including his underpants' together with the complainants under clothing's and pants were all on the ground. The matter was referred to the village leaders and later to the hounds of justice. At the police station the incident was assigned to DC Athuman, PW4, who investigated the crime and arrested the appellant at a primary court after the complainant hinted to DC Athuman, that the appellant was at the primary court. DC Athuman, accordingly charged the appellant at the District Court with attempted rape c/s 132 of penal code, after assembling thoroughly, all the evidence against the appellant. On the other hand, the appellant denied committing the crime. He contended that he was arrested on a charge of stealing wood carvings and was taken to Mwambao primary court, where he was apprehended by DC Athuman, PW4. After carefully analyzing the evidence on record, the District Court found the charges proved beyond a shadow of doubt and accordingly convicted the appellant as charged and sentenced him to serve a prison term of 30 years. The appellant is aggrieved with both the conviction and sentence, hence, this appeal. The appellant preferred six grounds of appeal, whose cumulative thrust and as argued before me by the appellant himself was, firstly, that the trial District Court was wrong in convicting the appellant believing and relying on the uncorroborated evidence of the complainant. Secondly, that the evidence of DC Athuman, PW4, was hearsay. Fourthly, that the complainant was not examined by a medical doctor and hence a PF3 was not produced to strengthen the 2 prosecution case and the last two grounds were framed in such a way that it suggested that the principles connected with attempted rape were not satisfied. At the hearing, the appellant added one more ground. He said that the prosecution added one witness, the investigator, DC Athuman PW4, who was not listed when the preliminary hearing was being conducted. The witnesses further tendered under wear, said to belong to the appellant and under clothing, that the complainant had put on, which again, were not listed as exhibits during the preliminary hearing. The Republic, through Ms Evita Mushi, learned State Attorney supported the conviction and the sentence met. I have followed and considered the appellants argument and those of Ms Mushi, and I would, in all the circumstances of this case, respectfully sustain Ms Mushi's line of reasoning. I have no slightest doubt in my mind that the trial District Court findings, that the appellant had attempted to rape the complainant was a triumph for justice. I see no ground for which that finding of the trial court can be impugned. The appellant complains that the investigator, PW 4, and the list of exhibits, that is, the appellant's underwear and the complainants under clothing, were not listing at the preliminary hearing. This is what the appellant added at the hearing of the appeal. And, in his memorandum of appeal the appellant complains that the Investigator's evidence was nothing but hearsay. With respect, I agree. However, even if we expunge that evidence from the record, it will not dent the prosecution case. Moreover, the lists of exhibits that PW4 attempted to introduce were not admitted. lnfact, the trial District court sustained the objection raised by the appellant. In ground number four the appellant asserts that a PF3 was not tendered. However, as rightly pointed out by Ms Mushi, the complainant did not sustain any injuries in the cause of the attack. Therefore, it was not necessary to introduce a PF3 in evidence. The first ground also poses no difficulties at all. Ms Mushi also answered that ground quite well. It revolves around corroboration. The evidence 3 of the complainant found credence in the evidence of PW2 and PW3. These witnesses saw the appellant committing the crime. The evidence of PWl, PW2 and that of PW3 did not contradict each other, as the appellant attempted to demonstrate, but rather complimented one another. With respect, that evidence was quite cogent and right to the point. In my view, the prosecution had established the guilt of the appellant to the tilt. PW2 and PW3 strengthened the complainant's case. In fact, these two witnesses interrupted the appellant when committing the crime. They found the appellant on top of the complainant. However, though the appellant penis erect, he had not managed to penetrate the complainant due to the interruption. The District Court correctly, in my views, applied the principles involved in the case and rightly cited the case of Kombo Abdulrahman Vs Republic Criminal Appeal No 13 of 1978 where the late Lugangikira, J., (as he then was) held that in order to constitute an attempt the acts of the accused must be such that if not intervened the appellant would have committed the offence of rape. However, on a proper reflection, I see one fatal irregularity that impugns the District Court decision and all the valiant effort I thought off to salvage the situation have proved futile. This flaw revolved around the charge sheet. The statement of offence in the said charge sheet read as follows:- That BOP s/o MRISHO @ KUDRA s/o MRISHO NUNDA charged on nd 02 day of January, 2006 at about 14.00 hrs at Mto wa nyanza in kitopeni village within Bagamoyo District Coast Region did attempt rape to (sic) one ANNA D/O COSMAS. This was the charge which the appellant was required to answer. The question is whether the charge sheet disclosed an offence against the appellant. I would venture in the circumstances and answer this question in the negative. The Court of Appeal once found itself in similar situation in the case of Mussa Mwaikunda Versus The Republic Criminal Appeal no 174 of 2006 (unreported) and made this observation: 4 "Before we answer the question we have to look at the definition of attempted rape. S.132 (2) of the Penal code as amended by S. 8 of the Sexual Offences Special Provisions Act NO. 4/98 states:- (2) A person attempts to commit rape if, with intent to procure prohibited sexual intercourse with any girl or woman, he manifests his intention by:- (a) threatening the girl or woman for sexual purposes; (b) being a person of authority or influence in relation to a girl or Woman, applying any act of intimidation over her for sexual Purposes; (c) making any false representations to her for the purposes of obtaining her consent; (d) representing himself as a husband of the girl or woman, and the girl or woman is put in a position where, but for the occurrence of anything independent of that person's will, she would be involuntary carnally known.( Emphasis supplied) For our purposes in this case, paragraphs (b), (c) and (d) of the above sub-section would not apply. Paragraph (a) would be the appropriate provision in the matter before us. It is interesting to note here that in the above charge sheet the particulars or statement of offence did not allege anything on threatening which is the catchword in the paragraph. The principle has always been that an accused person must know the nature of the case facing him. This can be achieved if a charge discloses the essential elements of an offence. Bearing this in mind, the charge in the instant case ought to have disclosed the aspect of threatening which is an essential element under paragraph (a) above. 5 In the absence of disclosure it occurs to us that the nature of the case facing the appellant was not adequately disclosed to him. The charge was, therefore, defective, in our view. Having said so, the issue is whether the charge facing the appellant was curable under S. 388(1) of the Criminal Procedure Act, 1985. With respect, we do not think that it was curable. We say so for two main reasons. One, since threatening was not alleged in the particulars of offence the effect was that an essential element of the offence of attempted rape missed in the case against the appellant. Two, at any rate, as already stated, the complainant did not say anywhere in her evidence that she was threatened by the appellant. If she had alleged any threat may be there could have been room for saying that the appellant knew the nature of the case that was facing him." In the instant case the complainant, as was the case in the cited Court of Appeal case, did not allege that she was threatened by the appellant. The appellant physically attacked the complainant without issuing any threats. The word 'threatening' connotes the expression of a warning of impending danger in case of a non compliance to the demands made. According to the Oxford Advance Learner's Dictionary the word entails 'expressing a threat of harm or violence'. Black's Law Dictionary subscribe that it is 'a communicated intent to inflict harm or loss on another or on another's property, esp. one that might diminish a person's freedom to act voluntarily.' The Shorter Oxford English Dictionary, define the word this way 'to utter or use threats: to declare ones intention of injuring or punishing in order to influence.' I think this is the type of crime that the legislature contemplated. That the offender would first issue a warning statement that harm would occur if the victim does not comply. The statement is made in order to influence compliance that crime of violent nature is likely to happen if the offenders' demand are not met. Such threats are key elements of this offence, without which there is no crime committed. In fact, these particulars were what was missing in the charge sheet, that is, the charge omitted to recite these essential ingredients and which however, cannot be gathered from the witness 6 evidence. This reminds me of a very famous South African case of R versus Herschel, 1920 A.D.575, where the Chief Justice observed that: " I do not think that any Court of Appeal would be justified in allowing a conviction to stand upon a charge sheet which disclosed no offence. Material defects of such a nature that the charge discloses no crime may be relied upon on appeal, even though the point was not taken at the tria I." Accordingly, I quash the appellants conviction and pass now to consider the fate of the appellant. I find that the appellant committed an offence when he attacked the complainant. A very important penal provision that would have properly fitted the appellant crime, namely Indecent assault as correctly framed by the former section 135 (1) of the Penal Code, was removed from our statute books and replaced by the current provision, which in my considered views, does not cover the crime committed by the appellant. With the ambiguity in the current statute and especially section 132 of the penal code as amended by section 8 of the Sexual Offences Special Provisions Act, 1998, the legislature should consider the re-enacting of the former provisions. All matters considered, I would therefore substitute an offence under the provision of section 240 of the Penal Code and convict the appellant with common Assault. He is accordingly sentenced to serve a prison term of one (1) Year. 4/4/2011 DATED AT DAR ES SALAAM For the appellant - Present in person under custody For the respondent - Mr. Hyera, SA 7