20120518 TZCA Mbeya2

AT MBEYA (CORAM: OT_HMAN, C.J., MSOFFE, J.A., And MANDIA, l.A.) . CRIMINAL APPEAL NO. 142 OF 2010 ISAMBI SAIN @ MWAZEMBE ....................................................... APPELLANT VERSUS THE· REPUBLIC ..................................... ···•• 11 • • · · · · · · · · · • • • • • • • • • • • • • • • • • • RESPONDENT · {Appeal from the decision of the High Court of Tanzania at Mbeya) {Msuya, J.) dated the 9 th day of March, 2010 in {DC) Criminal Appeal No. 19 of 2009 ·······················~···· JUDGMENT OF THE COURT 17th & 18th May 2012 MSOFFE. J.A.: The complainant, PWl JESINALA NUSUHELA aged 68 years at the material time, testified and told the trial District Court of Mbozi (Kassian, RM.) that oil 28/1/2008 at 2:00 a.m. she was asleep when the appellant ISAM BI SAIN @ MWAZEMBE broke into the house she was sleeping irr;· ----- held her neck and raped her. She raised an alarm. PW2 Tedy Nyanyenga, 1 PW3 Samote Nachome and PW4 George Kalungwizi Simchimba heard tne alarm and went to the scene. According to PW3, on arrival at the scene he saw the appellant lying over PWl. At the trial, on re-examination PW4 told the court that PW3 checked PWl, and saw sperms on her. He did not, however, tell the court on which part of the body were the sperms actually seen. Moreover, it is on record that PW3 never told the court that he checked PWl, as was·alleged by PW4. Anyhow, it is in evidence that the appellant allegedly attempted to flee from the scene but he was chased and arrested instantly by the witnesses who had assembled in answer to the alarm. Eventually, the incident was reported to the police. PWl was issued with a PF3 whereupon the doctor who examined her observed that there were spermatozoa on her genitalia. Following the arrest, the appellant was charged with and convicted of rape contrary to sections 130 and 131 (1) and (2) of the Penal Code. He was sentenced to a term. of imprisonment for thirty years. His first appeal to the High Court at Mbeya (Msuya, J.) · was dismissed. Still aggrieved, he has preferred this second appeal. Before us, the appellant appeared in person, unrepresented. The respondent Republic had the services of Mr. Vicent Tangoh, learned 2 ..;( ,, Principal State Attorney. Mr. Tangoh argued in support of the appeal. With respect, Mr. Tangoh was justified in not supporting the conviction for reasons which we will state hereunder. -The appellant filed an eight-point memorandum of appeal in which he has canvassed several grounds of appeal. However, as correctly submitted by Mr. Tangoh, the key ground really centres on whether or_ not the evidence on record established that there was penetration within the provisions of section 130 (4) (a) of the Penal Code in which penetration is an essential ingredient in an offence of this nature. Without hesitation, like Mr. Tangoh, we too are of the settled view that the available evidence did not establish that the appellant raped PWl on the material day and time .. Admittedly, the most crucial witness in the case was PWl who alleged that she was raped by the appellant. In this sense, as this Court has stated in several cases, the best evidence in the case of rape is that of the victim. See, for. instance, Selemani Makumba V Republic, Criminal Appeal No. 94 of 1999 (unreported). Yet again, this Court, has time and again, stated that it is not enough for the victim in a charge of rape to make a general statement that she was raped, without more. She must go 3 further and establish that there was penetration, however slight. W;e stated that much in the case bf Ex. B. 9690 Sgt. Daniel Mshambala V • \ Republic, Criminal Appeal No.\ 183 of 2004 and more recently in the cases . I . i of Godi Kasenegala V RepJblic, Criminal Appeal No. _10 of 2008, and Burton Mwipabilege, Crimint Appeal No. 200 of 2009 (all unreported). I These are only a few cases in Jhich we have pronounced ourselves on the point. There are several others\ In the instant case, as already observed, . I . - PW1 merely stated that she was raped. She ought to have been more I forthcoming and lead evidence to the effect that there was penetration, however slight. In the absence of such evidence, it follows that the evidence of PWl was not on\y worthless, but also even if it were admissible, it did not estabiish the offence of rape within the ambit of the above stated provisions of the lal. · · This brings us to the evidence of PW2, PW3 and PW4. At best, the evidence of these witnesses was lhat they assembled at the home of PWl in answer to the alarm and assist1 in the eventual chase and arrest of the appellant. None of these witnessls was positive that the appellant raped PW 1 within the requirements of th1 law i.e. section 130 (4) (a) of the Penal I .. . Code (supra). Admittedly, PW4 said that PW3 checked PWl and found her 4 ~ith ·sperms. But this statement has two shortcomings. One, it did not .. '\.l disclose the part of the body on which the sperms were seen. Two, PW3 who allegedly checked PW1 as testified by PW4, did not say. anywhere in his evidence in support of the allegation made by the said PW4. It was also in the evidence of PW3 that on arrival at the scene and upon entering into the house he saw the appellant lying over PWl. That might as well have been true. But this assertion was not enough to establish that the appellant was raping PWl in the process. At any rate, all the prosecution witnesses testified that it was dark everywhere at .the scene of incident. In other words, non~ of the witnesses said that there was light of some sort or of whatever nature or that the place was moonlit ·at the very least. In such a situation, we think, in saying that he saw the appellant lying over PW1, PW3 was either a blatant liar or he involved, or rather engaged, himself in exaggerating over the situation obtaining at the scene at the material time. At this juncture, we wish to address another crucial aspect of the case against the appellant. The aspect in issue is borne out by the complaint in the fourth ground of appeal in which the appellant is 5 essentially seeking to fault the courts below for placing undue regard to . the PF3 which, according to him, was wrongly admitted in evidence. On 29/9/2008 the PF3 was tendered in evidence by PWS WP 3689 D/Cpl. Halima. The appellant objected to its production and admission in evidence. The trial District Court overruled the objection thus:-:- Court: The objection by the accused has no legal · base because the PFJ does not indicate the man who raped it merely state whether the complainant · was raped or not. The objection is dismissed and the PFJ is admitted as exhibit Pl. In the first appeal, the appellant challenged the admission in evidence of the PF3 as per ground two of his petitioA•of appeal to the High Court. The judge on first appeal dealt with the complaint and reasoned as follows:- On the first ground relating to the admission of the PFJ as stated by the learned State Attorney was to 6 . ·.: '• . prove that the offence was committed. The issue of -- ;... demanding the medical doctor to be called by the prosecution and was not called, does not arise because the appellant as well had an opportunity to call witnesses. If he wanted the Medical Doctor to be. called he would have called him as his defence witness. With respect, in arriving at the above findings and conclusions the judge erred in two legal aspects. First, she was, in a sense, shifting the burden of proof to the defence. In criminal trials the law has always been that the burden of proof lies on the prosecution. The burden does not shift to the defence. All that is required of the defence--is to raise reasonable doubt on the case forthe prosecution. Two, it appears that the judge did not grasp, understand and appreciate the proper and true import and sense of the provisions of subsection (3) of section 240 of the Criminal Procedure Act (CAP 20 R.E. 2002) which reads:- (3) When a report referred to in this section is received in evidence the court may if it thinks fit, 7 and shall, if so requested by the accused or his advocate, summon and examine or make available for cross-examination the person who made the report; and the court shall inform the accused of his right to require the person who made the report to be summoned in accordance with the provisions of this subsection. [Emphasis supplied.] If we may digress a bit here, the trial magistrate also fell into the same -error- as the judge on first appeal in · not appreciating the requirements under the sub-section. Under the subsection, the court has, first and foremost, the mandatory duty of informing an accused person of his rig,t,t to require the person who made the report to be summoned· for cross-examination. Once he is so informed, the accused person has the option to have the person summoned for cross-examination; and if the accused person requests that the. person be summoned then the court. has no choice, but it is duty bound to· summon the person accordingly. If the accused person 8 \, dbes not request to have the person summoned the court may still, in its . wisdom, summon the person for cross-examination. In this regard, in dealing with the PF3 the courts below ought to have been guided by the spirit behind the provisions of the subsection as we have attempted to demonstrate above. Notwithstanding what we have stated above on the PF3 in relation to the law on the subject, the courts below ought not to have relied on it in grounding and upholding the conviction, respectively, for three reasons. One, the PF3 was mere evidence to the effect that spermatozoa were seen on the body of PWl and nothing more. Two, the _spermatozoa, if any, were not conclusive evidence that PWl was raped. Three, if PWl · had indeed been raped, the PF3 did not' establish conciusively that she was raped by the appellant in this case. In the light of the foregoing, it will follow that once the PF3 and the evidence of PWl are discounted there is no other cogent evidence on record upon which we could safely sustain the conviction. 9 I "-.. . In the event, for reasons stated, we hereby allow the appeal, quash,::., _ · the conviction and set aside the sentence. The appellant is to be released from prison unless he is held thlrein in connection with a lawful cause. DATED at MBEYA this 18th. day of May, 2012. Mi" C. OTHMAN CHIEF JUSTICE J I H. -MSOFFE JUSTICE OF APPEAL I ~- S. MANDIA JUSTICE OF APPEAL I certify that this is the true copy of the original. P~ll<YA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 10