20120625 TZCA Mtwara

IN THE COURT OF APPEAL OF TANZANIA ATMTWARA CRIMINAL APPEAL NO. 91 OF 2011 . (CORAM: OTHMAN, C.J., MBAROUK, l.A., And BWANA, l.A.) RASHID I ABDALLAH MTUNGWE ..................................... APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High .Court of Tanzania at Mtwara) {Mipawa, J.) dated the 30th day of March, 2011 in Criminal Appeal No. 42 of 2010 JUDGMENT OF THE COURT 22nd & 27 th June, 2012 BWANA, l.A.: Initially the appellant was charged with two counts, namely, Abduction contrary to section 134 of the Penal Code; and Rape contrary to sections 130 (2) (e) and 131 (1) of the said Penal Code. The trial court, the Newala District Court at Newala, found him guilty of both counts and was sentenced to serve a five years prison term for the offence of abduction and the mandatory thirty (30) years 1 imprisonment for the offence of rape. Both sentences were to run concurrently. The victim of both offences was Ramla Mtausi, PW1, a girl aged about sixteen (16) years although her age was not established satisfactorily in court. The failure to establish PWl's age led, on appeal to the High Court, to the conviction of abduction being quashed and the sentence of five years imprisonment set aside, regard being that the age of the victim was not satisfactorily established, an important ingredient in offences of that kind where the ages of 15 and 16 years are the determining factor. We agree with the first appellate judge on his reasoning and finding on the issue of abduction. The appellant has come before us appealing against the remaining count - that of rape or to put it in its proper perspective, the offence of what is known as statutory rape. As stated above, the victim was under 18 years old. The facts of this case briefly put are as follows:- The appellant was a Ward Executive Officer of Chingala Ward of Newala District. PW1, the victim, lived with her parents at 2 Mikumbi Village, part of Chingala Ward. She was schooling in Form I at a local school bearing the same name of Mikumbi. It was the prosecution case that sometime between October, 2008 and January, 2009, the appellant developed a love affair with PWl. He bought her several items including shoes, cell phone and many others. In return, so it was avered by PWl, they had a spree of sexual intercourse sessions in a guest house far away from PWl's home, known as Matapala Guest House. In the course of their love affairs, the appellant decided to rent PWl a room somewhere where they could live, undisturbed. This resulted into PWl absconding from school. In return, the school authorities started to search for her whereabouts. Eventually the whereabouts of PWl and the appellant together with their love affair were common, public knowledge. Upon realizing that the affair has become public knowledge and that there was a likelihood of PWl being pregnant, steps were taken by both sides. It was the evidence of Juma Kulyamba, PW2, a cousin of PWl and ·. Akule Hamis, PWS, a grandfather of PWl, that the · appellant contacted them looking for their favours so that the whole "issue" could be settled quietly and amicably. They declined to entertain the request. On PWl's side, her parents and relatives had 3 · .her taken to hospital for medical examination after they had reported the matter to the police. Eventually the appellant was arrested and charged accordingly. The appellant denied committing the offences. He was equally medically examined after PWl's examination revealed that she was infected with gonorrhea, a sexually transmitted disease (STD). The appellant claims that he was examined as well but was found not infected with the STD. In his defence he is on record as raising the issue: if he had raped PW1, how was it that he did not have gonorrhea, like PWl. He claimed that his PF3 proving that he had no gonorrhea was taken by the police who refused to give him so that he could tender it in court. Dr. Christopher Mponda, PW6 who had medically examined both the appellant and PW1, could not provide a satisfactory answer. He had been summoned in compliance with the provisions of section 240 (3) of the Criminal Procedure Act. Before us, the appellant appeared alone, unrepresented while the respondent Republic was represented by Ms. Mwahija Ahmed, learned State Attorney. 4 On his part, the appellant seemed to base his appeal on the following grounds:- • That the offence of rape was not proved to the required standard since penetration was not established. • That the evidence of PW1, PW2 and PWS should not be relied upon since they were all blood relatives who had concocted the story to have him punished, following his refusal, as Ward Executive Officer, to assist some members of their family to secure financial loans. • That his defence of ''alibi" was not considered. • That the sentence of thirty years imprisonment was harsh and excessive in the circumstances of the case. On her part, Ms. Mwahija Ahmed together with supporting the conviction, was of the further view that the punishment meted out by the trial court on statutory rape was incomplete in so far as the 5 provisions of section 131 (1) of the Penal Code provide. She • particularly drew the attention of this court to the requirement of :- • Mandatory minimum sentence of thirty years imprisonment. • Corporal punishment. •Fine. • Mandatory compensation of an amount to be determined by the court. She did however, submit that the number of strokes of the cane to be inflicted on the convict, or the sum or value of the compensation, was left to the court's discretion. Likewise, the issue of fine. It was Ms. Mwahija's prayer to the court to invoke its revisional powers, under section 4 (2) of the Appellate Jurisdiction Act and. correct the shortcomings in the sentence imposed in this case. Was the offence of rape not established simply because there was no proof of penetration? After reading through the record of the case before us, we are satisfied that the appellant's averment is misconceived. This is so for the following reasons. First, was the evidence before the trial court that PW1 and the appellant had a 6 period of several months of sexual intercourse in a guest house, far ·,. away from home. It is also PWl's evidence that the appellant eventually rented her a room where they stayed together. A situation such as the one described by PWl is different from, say, where an appellant would rape a woman once just to satisfy his sexual desire. The instant case shows this was a prolonged relationship lasting several months. The rape referred to in situations of this kind is therefore by implication. Second, it is shown above that the offence the appellant committed was statutory rape. Since PWl was under eighteen years of age, it is immaterial whether she consented to the act or not. Third, is the well settled principle that in cases of rape, the victim is the best witness to prove whether there was penetration or not. In the present case PWl is on record as having said that she had several sexual intercourse with the appellant during that period. Her evidence was believed by the trial court as well as her demeanour and credibility. The first appellate court did not fault the trial court's -findings on this issue of fact. We find no reason to fault the concurrent findings of the two courts "a qud' neither. 7 The other issue raised by the appellant is that the evidence of the prosecution witnesses should not be believed as they are blood relatives. The law on this issue is well settled. It is settled in the following manner. First, there is nothing in law that bars or forbids relatives from testifying on an event they witnessed (Deo Bazili Olomi and Another v. Republic, Criminal Appeal No 245 of 2007 (unreported) (referred to)). Second, what matters is the credibility of their evidence and the weight to be attached to such evidence. In this regard the said evidence has to meet the following test:- a) whether it was legally obtained. b) whether it was credible and accurate. c) whether it was relevant material and .competent. . d) whether it meets the standard of proof requisite in the particular case, otherwise referred to as the weight of evidence, or strength or believability. (Abdallah Teje @ Mali.ma Mahula V. Republic, Criminal Appeal No. 195 of 2005 (unreported) (adopted). 8 In the present case, it is our considered view, that the evidence of PWl, PW2 and PWS met the above (a) to (d) tests and was sufficient for the purposes of determining the criminal liability of the appellant. We do agree with the findings of the two courts below on this aspect of the evidence. The issue of "alibi' needs not detain us further. The appellant's defence of "alibi' is supported by his evidence in court that during the material time, he was on leave. He tendered his leave form for 2008 as exh. D1 in support of his averment. However, this said exh D1. shows that the appellant was on leave from 1st day of October, 2008 to 5th day of November, 2008. He was supposed to have gone to Tandahimba. The evidence is that the sexual affair between PWl and the appellant extended far beyond the alleged holiday period of the appellant. It started much earlier and came to an end well after 5 November, 2008, the date when the annual leave was over. We do note and agree with the appellant himself when he stated in cross- examination that "being on leave cannot prevent one from committing crimes charged". All aspects governing the law on alibi therefore, could not fend off the appellant from criminal liability as was charged. 9 Both parties to this appeal discussed the issue of sentence. On the part of the appellant, we do note that the thirty years prison term is the minimum mandatory sentence provided for under section 131 (1) of the Penal Code. In addition to the prison sentence, a convict may be subjected to corporal punishment to the number of canes to be determined by the court. Using its discretion, the court may in addition to imprisonment and corporal punishment the convict may be fined and in addition, shall be ordered to pay compensation of an amount to be determined by the court. The trial court in this case did impose the mandatory minimum prison term of thirty years. It did as well impose corporal punishment, twelve strokes of the cane. It did not order a fine nor compensation. The learned state attorney thought that the trial court had erred by not imposing the other sentences as provided for under section 131 (1) of the Penal Code. With due respect, we note that first, the respondent Republic did not raise these issues before the trial court in· its final address to the court. Second, it did not cross- appeal to either the High Court or to this Court over the issues. It was a prayer raised before us "viva voce'. We think the procedure 10 9dopted by the learned State Attorney was wanting in legal objectivity. Appeal or cross appeal over those issues should have . been taken up from that lower level. All the above considered, we dismiss this appeal in its entirety. DATED at MTWARA this day of 25th June, 2012. M.C.OTHMAN CHIEF JUSTICE M.S.MBAROUK JUSTICE OF APPEAL MB.M. DEPUTY REGISTRAR 11