20120413 TZHC Iringa2

~ IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION. (Iringa Registry) (DC) ~RIMINAL APPEAL NO. 38 OF 2011 (Originating from Iringa District Court Criminal Case No. 6 of 2010 Before: F.S.K. Lwilla - P.D.M.) ROBERT NYENGELA ............................. APPELLANT VERSUS THE REPUBLIC ................................... RESPONDENT (Date of last Order 14.3.2012 Date of Judgement 13.4.2012) · JUDGEMENT KIHIO, J. The appellant, Robert Nyengela was convicted of rape contrary to Sections 130 (1) (2) (e) and 131 of the Penal Code, - Cap. 16 R.E. 2002 and he was sentenced to thirty {30) years imprisonment with twenty four strokes of cane. It was further ordered that he should compensate the victim of rape, Lulu D/o Sengele a sum of Shs.100,000/~ for the injuries she sustained. ' The conviction and sentence aggrieved the appellant, hence 1 ~--- --- - ' -.--- -,.fl- - - - • The facts of the case as established in the evidence in the . . ' . trial court were that the victim of rape, Lulu D/o Sengele (PW .1) was the daughter of Deograss Sengele (PW.2) and Pendo Gwivaha (PW.4). On 2.1.2010 at around 19.00 hours when Pen do Gwivaha · (PW .4) was in her room having a rest and Deograss Sengele (PW.2) was·on evening walk the appellant and another youngman came at PW.2's house and called Lulu D/o Sengele (PW .1) who was by then lighting fire in their kitchen for purposes of preparing dinner. After the appellant told PW .1 to accompany him (appellant) to his residential place and she (PW.l) resisted he threatened that he would stab her (PW.l) with a knife if she would not accompany him a result of whic~ . . she (PW .1) followed him to the house where he was residing. When sh-e (PW. l) and th~ appellant entered into his (appellant's) room the youngman who was with the appellant remained outside the house. Thereafter the appellant locked the room and when she (PW .1) refused to lie on the bed he (appellant) threw her on the· bed by force, undressed her (PW.l's) skirt and underwear, stopping her from shouting for help by blocking her (PW. l's) mouth using his (appellant's) hands and penetrated his penis into her (PW. l's) female sexual organ. After the appellant had satisfied his sexual desires he opened the door and ordered her (PW.1) to go home. When she (PW.l) reached home she narrated the whole story to her father (PW .2) and the people who traced her when she was found missing at home a result of which PF.3 (Exhibit P.l) was issued to her and she was taken to 2 Isimani Health Center for treatment. It was in the evidence of PW .1 that when the appellant penetrated his penis into her female ·sexual organ she felt pain and blood came out from her (PW.l;s) vagina. It was also in the evidence of PW .1 that the appellant was a resident of the village she (PW. l) was residing, she identified him at their house because there was light in the kitchen and there was lamp light in the appellant's room when he (appellant) was having sexual intercourse with her (PW.1). According to her (PWl's) evidence, she was fourteen years and six months when the appellant raped her. Deograss Sengele (PW.2) gave testimony that on 3.1.2010 during morning time he found that PW .1. was walking ·in abnormal way and there were some "blood stains on her (PWl 's) skirt. It was in his evidence that PW .1 was fourteen years and six months f· when she was raped. Jane Gwivaha (PW .3) gave testimony in the trial Court that on 3.1.2010 Lulu Sengele (PW .1) told her that she had sexual intercourse with Robert Nyengela (appellant) on 2.1.2010. She further gave testimony that she inspected PW .1 at her private parts 'and she noted that she (PW .1) had sexual intercourse with a man. She said that PW l's underwear had blood stains. • Pendo Gwivaha (PW.4) told the trial Court that Lulu Sengele 3 (P-W.-l-j· was bo-i:-n on 2fL6-.. 1995 at_Iringa Re.g.Lonal Goy_e_rnment ___ ,' Hospital and ·she obtained a Clinical Card (Exhibit P.4) in respect of PW.1. • The "Mgambo" militiaman, Erasmo Mwenda (PW .5) told the trial court that on 3.1.2010 at about ·s.30 · p.m. the village Chairman told him - that the appellant was suspected to have raped Lulw ?engele_ (PW .1) and so he (appellant) should be arrested. He further told the trial court that when they went to the football ground they saw the appellant who started to run away after he was called by the Security Committee Chairman. 1 It was in his (PW.S s) evidence that they pursued the appellant and arrested him. The Qppellant denied to have· raped Lulu Sengele (PW. l). He gave_ evidence on oath in the trial court that on 2.1.2010 at about 19.30 hours he was in the streets with. his colleagues. He further gave evidence that when he was playing football the () Security committee Chairman called him and thereafter "Mgambo" militiamen. arrested him and took him to the village office. The appellant raised eight complaints - in his Petition of Appeal. - However, in essence his grounds of appeal are four, namely:- 1. That the trial Magistrate erred in law and fact in him when the prosecution side failed to prove the offence 4 against him to the standard required under the law. 2. That the trial Magistrate erred in law by relying on the PF.3 without calling it's author, the Doctor. 3. That the trial Magistrate erred in relying on the evidence of PW.1, PW.2, PW.3 and PW.4 who were_ family. members. 4. That the trial Magistrate erred in convicting him by considering the evidence on the prosecution side only. The appellant appears in person in this appeal while the respondent, Republic is represented by Mr. Luena; learned Principal State Attorney. The appellant decided to adopt his grounds bf appeal in his Petition of Appeal. Mr. Luena supports both the conviction and sentence. In resisting the first ground of appeal, he submitted that the law is clear that the best evidence in rape cases is the evidence of the victim herself and he referred this court to the case of Selem-ani Makumba V. Republi·c, CAT Criminal Appeal No. 94 of 1999 Mbeya registry (unreported) where the Court of Appeal of Tanzania held that:- 5 "True evidence of rape has to come from the victim, if .an adult that there was penetration but no consent; and in case .of any other woman where consent is irrelevant, that there was penetration". As regards the second ground of appeal, he contended that the doctor who filled the PF.3 (Exhibit P.1) was not called in the trial court to testify and so the provisions of Section 240 (3) of the Criminal Procedure Act were not complied with. He further contended that under the law the PF.3 should not form part of the evidence or it should be expunged and he referred this court· to the case of Stanley Wililo V. Republic, C.A.T. Criminal· Appeal No. 32 of 2009, Iringa registry (unreported). He argued that the appellant was not given chance to admit or object~the appli·cation to tender the PF.3 in court as an exhibit. He. further argued that even if the PF.3 (Exhibit P.1) is expunged the evidence available in the trial court was sufficient to fetch a conviction. As regards, the third ground of appeal he pointed out that it is law that family members are competent witnesses and what is important is their credibility and he referred this court to the case of Stuart Erasto Yakobo V. Republic - C.A.T. Criminal Appeal No. 202 of 2004, Dar-es-Salaam registry (unreported). He further pointed· out that the evidence of family members was enough as the family members witnesses were competent and compellable witnesses. He argued that in the absence of any evidence that the family members witnesses cooked story 6 I I ,. rI against the appellant, the trial court correctly relied .on them as l' I they ¼ere credible witnesses. As regards the fourth ground of appeal, he react~d by arguing that the trial court considered both the evidence on the prosecution side and the defence side and found that the evidence on the prosecution side proved the guilt of the appellant beyond reasonable doubt. .He was of the view that from the evidence adduced in the trial court the trial court correctly convicted the appellant. In reply, the appellant submitted that PW.3 did not tell the trial court the thing which injured PW.1 's vagina. He further submitted that there were no witnesses who testified that they came to his (appellant) room on the day the rape took place. The first issue for determination here is whether it was proper on the part of the trial Magistrate to rely on the PF.3 (Exhibit P.1) in convicting the appellant without calling it's author, the Doctor to testify or not. In the case of Stanley Wililo V. Republic C.A.T. Criminal Appeal No. 32 of 2009 (above) referred to this court by Mr. Luena the Court of Appeal of Tanzania enunciated the principle of law that:- "Section 240 (3) of the Criminal Procedure Act makes it clear that the trial court has the duty to inform the · 7 ·-· ·- - - - - - - - - - - accused person that he. has a right to have the doctor called for cross-exam;nation". Mr. Luena rightly submitted that the PF.3 (Exhibit P.1) was relied upon by the trial Magistrate in convicting the appellant without it's author, the Doctor being called to testify and so the provisions of Section 240 (3) of the Criminal Procedure Act, Cap. 20 R. E. 2002, were not complied w·ith. The trial court's record clearly reveals that the appellant was not informed of his right to have the doctor called for _cross-examination. Indeed, there was a violation of the principle of the law. Mr. Luena further submitted, and I think correctly so, that the appellant was not given chance to admit or object the application to tender the PF.3 {Exhibit P.1) in the trial court as an exhibit. On the.irregularities available in respect of Exhibit P.1., it could not be safely relied upon as forming the basis of the conviction of the appellant . . With respect, I agree with Mr. Luena that Exhibit _P. 1 should not form part of the evidence or it should be expunged. Exhibit P.1 is, therefore, expunged from the record. The second issue for consideration in this appeal is whether the trial Magistrate was correct in relying upon the evidence_ of family members witnesses to convict the appellant or not. In the case of Stuart Erasto Yakobo V. Republic - C.A.T. Criminal Appeal No. 202 of 2004 (unreported) referred to this court.by Mr. Luena the Court of Appeal of Tanzania held that:- 8 "In terms of Section 127 (1) of the Evidence Act members of . the same family are competent witnesses, hence their evidence did not have to be . corroborated". In the case of Paulo Toray V. Republic - C.A.T. Criminal Appeal No. 216 of 1994, Mwanza registry (unreported) the Court of Appeal of Tanzania held that:- "It is. of course, not the law that whenever relatives testify to any event they should not be believed unless there is also evidence of non-relative corroborating their story". Again in the case of Mustafa Ramadhani Kihiyo V. ~epublic (2006) T.L.R. 323 the Court of Appeal of Tanzania held that:- "The evidence of the related witnesses is credible and there is no rule of practice or law which requires the evidence of relatives to be discredited, unless of course, there is ground for doing so, in this case we find no reasons for discounting the evidence of the said related witnesses". Also see the case of Godfrey s/o Mbwilo V. Republic - C.A.T. Criminal Appeal No. 249 of 2010, Iringa registry (unreporte·d). Mr. Luena correctly submitted that family members are 9 J_. ,:, " l· competent witnesses and what is important is their credibility. I ; i also agree with Mr.· Luena's submission that ·.in the absence of • any evidence that the family members witnesses cooked story against the appellant, the trial court correctly relied on them as they were credible witnesses. The third issue in this appeal is whether the guilt of the appellant was proved beyond reasonable doubt.or otherwise. In the case of Selemani Makumba V .. Republic (supra) referred to this court by Mr Luena, the Court of Appeal of Tanzania held that:- "True e'(idence of rape has to come from the victim, if an adult that there was penetration but no consent and in case of any other woman where consent is. irrelevant, that there was penetration". In the case of Mohamed Mumba V. Republic - C.A.T. Criminal Appeal No. 270 of 2007, Iringa registry (unreported), the Court of Appeal of Tanzania enunciated the principle of law that:- "The presence of spermatozoa and bruises carry no weight in proving the offence of rape. What is required is to prove penetration however slight". In the instant case, PW .1 said that the appellant inserted his male organ into her female sexual organ. PW.1 further 10 saidthat when the appellant· penetrated his male organ into her female ·sexual organ she felt pain and bJood came out from her female sexual organ. The testimony of .PW.2 and PW.3 · corroborated the evidence of PW .1 to the effect that there were blood stains on PW. l's skirt and underwear. As the appellant penetrated his male organ into PW .1 's female sexual organ and at that time PW .1 was fourteen years and six months old that was rape. From the evidence available in the trial court, I am satisfied that the guilt of the appellant was proved beyond reasonable doubt. I agree with Mr. Luena's view that from the evidence adduced in the trial court, the trial court correctly convicted the appellant. With regard to sentence~ I hold that the sentence imposed is proper under the law. In the final analysis, I find that this appeal lacks merit and I dismiss it in it's entirety. ..J:€1L,. ~ .- S.S.S. KIHIO JUDGE 13/4/2012 Court: Judgement delivered in the presence of the appellant 11 JUDGE 13/4/2012 12