20131205 TZCA Arusha

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: KIMARO. JA» MASSATI. J.A.. And MMILLA, 3.A.) CRIMINAL APPEAL NO. 286 OF 2013 SIMON LUCAS...................................................APPELLANT VERSUS THE REPUBLIC........................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Moshi) (Hon. E. N. Munuo, Dated the 24th day of September, 1999 in Criminal Appeal No. 47 of 1999 JUDGMENT OF THE COURT 3rd & 10th December, 2013 MMILLA. JA.: On 21.9.1998 around 1.00 a.m., Delvina d/o Raymond was sexually assaulted by the appellant, Simon Lucas when she was on her way back home from her place of work. In fact, she narrowly escaped death; thanks for the sudden appearance of Mama Yoyo and Mage at the scene of crime on the appearance of whom the appellant and his colleague ran away. After her rescue by those two women, she laid a complaint to the police who followed up the matter. Later on, the appellant was arrested and charged before the District Court of Moshi with the offence of rape c/s 130 and 131 of the Penal Code Vol. I of the Laws as was amended by sections 5 (1) (2) (e) and (3) of the Sexual Offences Special Provisions Act No. 4 of 1998. Upon conviction by that court, he was sentences to thirty (30) years' imprisonment. His first appeal to the High Court of Tanzania at Moshi was unsuccessful, hence this second appeal which is against both conviction and sentence. The brief background facts of this accused were that on that day around that time, PW1 left her place of work at Longuo B at which she was a grocery attendant heading home. She was in the company of one Benedict Lucas. When they were near her home, the appellant who was in the company of one person known as Chibuku, emerged. The two asked Benedict Lucas if he knew the girl he had accompanied, and where he was taking her to. Upon his reply that he knew the lady and was escorting her to her home they left. A brief moment later, the appellant and his colleague re-emerged. After successfully instilling fear on Benedict who fled, the appellant caught hold of PW1 and carried her away into a farm at K.C.M. C. at which he forcefully pulled off her under-pants which was torn in the process after which both of them raped her. The appellant was first and his friend followed. After they were through with that awful act, the appellant proposed to his friend that they had to kill her because she knew them to avoid the risk of her naming them. He thus asked to be given a knife to enable him execute the killing. According to PW1, her life prevailed by sheer lucky following the sudden appearance at the scene of crime of two persons; Mama Yoyo and Mage. After the appearance of those two women, the appellant and his colleague fled. Those two women assisted PW1; they picked the knife and her torn under-pants and sent her to her home. The next morning, PW1 reported the incident at Longuo Out Post. She was given a PF3 and proceeded to Mawenzi Hospital for medical examination. When she was through, she returned the PF3 at Longuo Out Post. She went away. Two days later, Mage looked for her. On meeting her, she was persuaded into escorting her at City Joy Bar and she agreed. On arrival there, she saw the appellant sitting on one table with Mama Yoyo enjoying drinks. Mage asked her to avoid them, she led her to a guest house wing at which while PW1 was standing near the door to one of the rooms, Mage opened it, pushed PW1 therein and locked the door. PW1 said she stayed therein for two days without food or any other kind of service. On the second day at around 4.00 am, the appellant went there, opened the door and ordered her to leave. PW1 left the same night for her home. The next morning she reported the incident at Majengo Police Station. Eventually, the appellant was traced, arrested and charged of that offence. The case was investigated by PW2 No. C. 1732 D/Sgt Kassim who said, upon being assigned that case for investigation on 28.9.1998, he traced and interrogated the complainant. After hearing her narration, he traced and interrogated Benedict Lucas, Mama Yoyo and Mage all of who he said, refused to cooperate. He also met the appellant. Upon interrogation, the latter denied allegations that he raped PW1. He nevertheless decided to charge him on the basis of the other evidence he had collected. Before this Court the appellant appeared in person and was unrepresented. He had filed a memorandum of appeal which raised six grounds as follows; one that, the charge against him was not proven to the standard required by law; two that, the defence case was not considered by both lower courts; three that, the charge against him was fictitious; four that; it was not established that he was armed with a knife; five that, both lower courts erred in not drawing adverse inference for the prosecution's failure to call as witnesses Benedict Lucas, Mama Yoyo and Mage; and lastly that, both lower courts erred in holding that PW1 was a credible witness. Elaborating on his grounds of appeal, the appellant submitted very briefly that it was wrong for the trial court to have not believed his account that PW1, whom he alleged had under stated her age to be 16 years while she was actually 21 years old, was his lover, therefore that the question of rape did not arise. On the other hand, the respondent/Republic was represented by Mr. Zakaria Elisaria, learned Senior State Attorney who hastened to inform the Court that he was opposing the appeal. He submitted that the two courts below properly found that the prosecution had proved the case against the appellant to the standard required by law. He stressed that the evidence of PW1 that she was raped by the appellant and his friend was very strong. In his view, the two courts below properly held that PW1 was a credible witness on account that her evidence was consistent and free of contradictions, particularly when one takes into account that the narration she gave to PW2 was not different to her testimony she gave in court. On being probed whether the prosecution led evidence to establish that then PW1 was 16 years of age, Mr. Elisaria conceded that there was no such evidence, also that it was not even reflected in the charge sheet. He was quick to add however, that even where it was to be said she was above 18 years, there was evidence to prove that there was no consent. He referred the Court to the evidence of PW1 that her under-pants was removed by force in the process of which it was torn, also that the appellant proposed to his friend that they had to kill her in order to avoid being named. He submitted therefore that there was clear evidence that there was no consent. On another point, Mr. Elisaria admitted that the PF3 constituted in exhibit PI was wrongly relied upon for having been admitted in contravention of section 240 (3) of the Criminal Procedure Act Cap. 20 of the Revised Edition, 2002 (the CPA). He was firm however, that there was other ample evidence to still establish that the appellant raped PW1. He added that, in fact the appellant himself admitted that he had sexual intercourse with the complainant whom he alleged was his lover, a fact which was strongly denied by PW1. Also, Mr. Elisaria refuted the appellant's complaint that his defence was not considered, asserting that it was considered but rejected. So was the former's allegation that the charge against him was fake, for which he argued that the allegation is baseless given the strength of the evidence for the prosecution. Similarly, Mr. Zakaria contended that the two lower courts were justified in not drawing adverse inference for the prosecution to have not called Benedict, Mama Yoyo and Mage on account that PW2 traced and interrogated them all, but they declined to cooperate. In view of these reasons, Mr. Elisaria urged the Court to dismiss the appeal in its entirety. The main issue in this appeal is whether the two courts below properly found that the evidence on record sufficiently established the appellant's guilt to justify his conviction. We propose to address the grounds raised generally. As shown above, both courts below made a concurrent finding of fact that the prosecution had proved their case to the standard required by law. They particularly found the prosecutrix's evidence to have been strong, credible and reliable. This being a second appeal, as a general rule, this Court would not readily interfere with such concurrent finding of fact except where there are serious misdirections, non-directions or misapprehensions on the evidence leading to miscarriage of justice. We are relying on what this Court said in the cases of Musa Mwaikunda v. Republic [2006] T.L.R. 387 and Rashid Ramadhani Hamisi Mwenda v. Republic, Criminal Appeal No. 116 of 2008, CAT, Tabora Registry (unreported), among others. As properly submitted by Mr. Elisaria, the key witness in this case was PW1 who, as aforesaid was the complainant. As will be appreciated, this Court has consistently held in several of its cases that the best evidence of rape comes from the victim herself. See the case of Selemani Mkumba v. Republic, Criminal Appeal No. 94 of 1999, CAT and Saidi Ally Mkong'oto v. Republic, Criminal Appeal No. 133 of 2009, CAT (both unreported). It is also pertinent to put it clear that in proving rape, penetration is one of the essential ingredients of the offence which must be proven. Also, where the victim is an adult, evidence must be led to establish lack of consent. In our present appeal, PW1 had testified that upon her encounter with the appellant, the latter grabbed her, carried her into a farm at K.C.M.C., forcefully removed her under-pants in the process of which it was torn and raped her. As correctly submitted by Mr. Elisaria, that entailed that there was no consent. We have taken note of the appellant's assertion that PW1 was his lover; on this again, we agree with Mr. Elisaria that he could not have applied force to remove the under-pants of his lover where there was consent. For the sake of argument, if at all she was her lover as he purported, then, it must be deemed or concluded that consent was withdrawn. Worse more, the fact that after he and his colleague were through with her the appellant proposal to kill her to avoid being named by her is another good reason for finding that there was no consent. In view of this evidence, we uphold the findings of the two courts below that the evidence of PW1 was cogent, strong and credible. We also agree with Mr. Elisaria that the PF3 ought to have been expunged from the record by the first appellate court on account that it was admitted by the trial court as evidence in violation of the provisions of section 240 (3) of the CPA in that the appellant was not informed of his right stipulated under that provision to elect on whether or not to call the doctor who medically examined the prosecutrix to appear in court for cross examination. We further agree with him however, that there was other ample evidence to still establish that the appellant raped PW1. This is because as correctly submitted by Mr. Elisaria , the appellant himself admitted that he had sexual intercourse with the complainant on ’legations that she was his lover, for which we have made a finding jainst the appellant. We similarly agree with Mr. Elisaria that the appellant's defence was considered, but rejected. On page 15 of the appeal record at which appears the trial court's judgment, the trial magistrate expressed that "the defence of the accused that PW1 was a girl friend to him is no defence as the act was not consented by PW1." This in our view, is evidence that appellant's defence was considered but rejected. It is clear therefore that the case as a whole was decided on the strength of the prosecution evidence. On the basis of the same reasoning, we find no merit in his argument that the prosecution and/or the complainant faked the case against him. Yet to be considered is the appellant's complaint that both lower courts erred in in law and in fact in not drawing adverse inference for the prosecution's failure to call as witnesses Benedict Lucas, Mama Yoyo and Mage. It is incontrovertible that the prosecution side did not call as witnesses the above named persons who were named by PW1 to have had seen the appellant and his colleague at the scene of crime on 21.9.1998. However, PW2 was very clear that he traced and talked to those persons but they declined to cooperate. This being the case, it would have been quite improper for the both courts below to draw 10 adverse inference in the circumstances of this case. In a deserving case, an inference may be drawn where the persons omitted are within reach and not called without sufficient reasons being shown by the prosecution side, which is not the case here. Thus, this ground too fails. For reasons we have assigned, this appeal lacks merits and we dismiss it in its entirety. Appeal dismissed. DATED at ARUSHA this 5th day of December, 2013. N.P. KIMARO JUSTICE OF APPEAL A S.A. MASSATI JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL I Certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL