20120511 TZCA Arusha

-' 1 IN THE COURT OF APPEAL OF TANZANIA ATARUSHA . (CORAM: NSEKELA, J.A., LUANDA, J.A., And MASSATI, J.A.} CRIMINAL APPEAL NO. 63 OF 2010 · PAULI JOSEPH •••• e••· 111•• •••• ••• •••••••••••••••• ■ •11••···· ••••• •11•• ••APPELLA.NT VERSUS THE REPUBLIC. .......... c••··-·-·-···-·-·-·-·-·-•-11••-···-··•-1J11■eRESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) {Sambo, l.} dated the 20th day of January, 2010 in ,; Criminal Appeal No. 6 of 2003 JUDGMENT OF THE COURT 9 & 18 May, 2012 MASSATI, J.A.: The appellant was arraigned before the District Court _of Hanang, in Manyara Region, and charged with the offence of rape, contrary to sections 130 and 131 of the Penal Code as amended by the Sexual Offences ( (Special Provisions Act No. 4 of 1998). .,. •. 2 It was alleged that on the 1ith day of September, 2001 at around 1 pm. at Dareda village, in Babati District, he had carnal knowledge of a 4 year old girl called Paulina d/o Damiano. The appellant pleaded not guilty. Evidence was led to the effect that the victim was the daughter of PW1 DAMIAN JOSEPH, who was the blood brother of the appellant. On the material date and time he and his wife, PW3 ANJELA SAEDAY, had gone to attend a wedding ceremony in the neighbourhood. They left the victim at home. While there, PW2, EMMANUEL JOSEPH, came and informed them that he had surprised the appellant ravishing their daughter at their father's home. They rushed home. They found the victim crying in pain and was bleeding from her private parts. PW2 is the one who caught the appellant having sex with the victim in flagrante delicto. The matter was referred to the police; a PF3 was issued, and the victim was taken to hospital for treatment. This was followed by the arrest and charging of the appellant. .... 3 In his defence, the appellant confessed to have committed the offence and prayed for leniency. In the light of the evidence on record, he was convicted as charged and sentenced to life imprisonment and 12 strokes of the cane by way of corporal punishment. His appeal was dismissed by the High Court in its entirety. He has now come to this Court to challenge both the conviction and sentence. In this Court, the appellant appeared in person/unrepresented. Earlier on he had filed a memorandum of appeal comprising of four grounds of appeal. These can be condensed into the following. FIRST, that the conviction wrongly proceeded on the uncorroborated evidence of PW2. TWO, that the two courts below wrongly relied on the evidence of PWl and PW3, which was in essence, hearsay. THREE, that the courts below, misdirected themselves by shifting the burden of proof to the appellant. And LASTLY that the two courts below wrongly acted on the evidence of the PF3 which was admitted contrary to Section 240(3) of the 4 Criminal Procedure Act. In response to the questions from the bench about his defence, the appellant sought to impeach the record of the trial court by denying having ever confessed to the commission of-the offence as it is shown in the record of appeal. He thus urged us to allow the appeal by quashing the conviction and setting aside the sentence. The respondent/Republic was represented by Mr. Victor Kahangwa, learned Principal State Attorney, assisted by Ms. Javelin Rugaihuruza, learned Senior State Attorney, and Mr. Massy Bonda, learned State Attorney. But the appeal was argued by Mr. Bonda. Mr. Bonda, informed the Court that, the grounds of appeal presented by the appellant lacked substance, basically because the conviction was grounded on the evidence of PW2, corroborated by the appellant's own confession, and not on any other. However the Republic would not support the conviction, because, in his view, the prosecution did not establish the element of penetration, beyond reasonable doubt. For that reason, he supported the appeal, and urged the Court to allow it. 5 '• On a careful reappraisal of the evidence on record and the submissions of the appellant and the respondent, we are satisfied that this appeal is devoid of substance and m,ust be dismissed in its entirety. There is credible evidence of PW2 who caught the appellant, in flagrante delicto ravishing the victim, in their father's bed. PW3 examined the victim in her private parts and found bloody oozing out from there, immediately after the alleged atrocity. But the most damning evidence is from the appellant himself who, in his defence under oath said: "On the date of arrest I did sex the daughter of Damian Joseph. It was Emmanuel Joseph who saw one (sic) sexing the child on the bed of our father. I do confess before this court that I raped Paulina Damiano but I pray this court to pardon me as I do plead guilty before the court'~· This is the appellant confessing to the commission of the crime. Before, this Court, the appellant had sought to impugn this part of the record. 6 . With respect, a court record is a serious document and the presumption is that it represents a correct representation of what transpired in court. It should not be lightly impeached (See PAULO OSINYA v R (1959) E.A. 353; HALFAN SUDI v ABIEZA CHICHIRI (1998) TLR. 527. The appellant has not shown us why we should not therefore take the trial court's record as authentic. We take that it is so; and therefore it is also our finding that the appellant confessed in the trial court, to have committed the offence of rape. Mr. Bonda, has valiantly tried to persuade us that the ingredient of penetration was not established by the prosecution. With unfeigned respect, we do not agree. It is true that in many decisions made by this Court, it has been consistently held that for the offence of rape to be proved, evidence of actual penetration must be led and not simply by giving a general statement alleging that rape was committed. (See DANIEL MSHAMBALA v R Criminal Appeal No. 183 of 2004, MATHAYO NGALYA @ SHABAN! v R Criminal Appeal No. 170 of 2006, GODLOVE AZAEL @ MBISE v R Criminal Appeal No. 312 of 2007 (all unreported). 7 But in all these cases, the appellants did not admit to have committed rape as in the present case. Which makes the present case peculiarly distinguishable. We say so, because this Court has also held that in criminal cases, the very best of witnesses is an accused person who confesses his guilt, and especially if he does so in the course of his defence. (See SELEMANI HASSAN! v R Criminal Appeal No. 364 of 2008 MOHAMED HARUNA @ MTUPENI v R Criminal Appeal No. 259 of 2007 (both unreported). With respect, we think that the prosecution case was proved beyond reasonable doubt. The conviction cannot be faulted and the sentence is the statutory minimum. We therefore dismiss the appeal in its entirety. It is so ordered. DATED at ARUSHA this 11th day of May, 2012. 8 H. R. NSEKELA JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL S. A. MASSATI JUSTICE OF APPEAL hat this is a true cop · COURT