20130802 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MSOFFE, iA., KIMARO,J.A.,Ancl JUMA, J.A,) CRIMINAL APPEAL NO. 226 OF 2011 S HIJA MISALABA .......................................................... APPE LLSANT VERSUS THE REPUBLIC .......................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania atMwa nza) (Sumari. J.) dated the 5th day of August, 2011 in Criminal ADDeaI No. 49 of 2010 JUDGMENT OF THE COURT 31 11 July &5' August, 2013 KIMARO, J.A.: The District Court of Geita at Geita in Mwanza region convicted the appellant of the offence of rape contrary toséction 5(1) (2) and (6) of the Sexual Offences (Special Provisions) Act, No. 4 of 1998 and sentenced him to thirty years imprisonment.;The offence was alleged to have been committed on the 13th day of September, 2003 at about 18.00 hours at Kitigiri Village. The appellant was alleged to have an unlawful carnal knowledge of Nkwaya Wenya without her consent. The testimony of Nkwaya Wenya (PW1) an old woman aged 85 years was thaton the material day, she was returning home from a "pombe" club. The appellant who was known to her before as a village mate followed her. He caught her and pushed her in the bush, and fell her down. Unfortunately, the complainant did not wear underpants, and 1 so the appellant easily, but against the complainant's consent, had sexual intercourse with her. PW1 raised an alarm which was responded to by Kazimili Lukunyiza (PW2) the Village Executive Officer. His evidence was that he found the appellant "flagrante delicto" committing the offence of rape. In his defence the appellant denied the commission of the offence but the trial court did not believe him. He was then sentenced as shown above. He lost his appeal in the High Court and he has come to this final Court of the land, still protesting his innocence. His grounds of appeal are seven. In the first ground he complained that the evidence against him was fabricated. The second ground is concerned with a sketch plan of the scene of crime which the appellant said it was used to convict him. As for grounds three and six the complaint is that the evidence of PW1 and PW2 was not corroborated. In ground five, the appellant complained that the evidence of PW1 and PW2 was contradictory, while in the last ground the appellant complained of infringement of his rights under section 240(3) of the Criminal Procedure Act, CAP 20 in that he was not informed of his right to have the doctor summoned for cross-examination. The appellant appeared before us in person to argue his appeal. He had no representation. Mr.AloyceMbunito, learned State Attorney appeared for the respondent Republic. 2 In support of his appeal the appellant insisted that he did not commit the offence and that he was arrested after being sick for two months. He admitted having no grudges with the Village Chairman (PW2). He prayed that the appeal be allowed. The learned State Attorney supported the conviction and sentence. Responding to the grounds of appeal seriatim, the learned State Attorney said all the grounds had no merit. Starting with the first ground he said the evidence of PW1 and PW2 was direct evidence to the commission of the offence. As for the second ground he said apart from being irrelevant for proving the commission of the offence, it was not raised in the first appellate court. Regarding grounds three and six, the learned State Attorney said there was no need for corroboration. The evidence adduced was sufficient to prove the commission of the offence. On ground four, the learned State Attorney said it was not raised on first appeal but the judgment was written in accordance with section 312 of the Criminal Procedure Act, [CAP 20 R.E. 2002]. Regarding the contradiction in the eyidence of PW1 and PW2, the reason for compliant in ground five and six, the learned State Attorney said there was none. In ground seven the learned State Attorney admitted that the appellant was entitled under section 240 (3) of CAP 20 to have the doctor summoned for cross-examination. However, he said failure to summon the doctor did not occasion any failure of justice. He prayed that the appeal be dismissed. Admittedly, this is a short and simple case. We agree that some of the grounds of appeal raised by the appellant are new. These are 3 grounds two and four. They were not raised by the appellant in the first appeal court and for this reason we will not address them. The conviction of the appellant was based on the evidence of the victim of the offence NkwayaWenya (PW1) and that of the Village Chairman, KazimiliLukinyuza (PW2) who found the appellant in "flagrante delicto" committing the offence of rape. PW1 was clear in her evidence that she did not consent to the sexual assault by the appellant. The subordinate courts believed the complainant. This being_a second_appeal where the jurisdiction of the Court is limited to correction of misdirection or non- rection committed by the subordinate courts hence leading to miscarriage of justice, do we have to interfere? See the case SalumMhando V R [1993] T.L.R.170. In the case of SalumMakumba V R Criminal Appeal No. 94 of 1999 (unreported) the Court held that the best witness to the offence of rape is the victim herself; a woman where consent is needed, and a child nsentis not relevant in this a p pea I the vi ctim was an oki woman of 85 years. The evidence of the complainant was that she did not consent to the sexual intercourse. In his defence the appellant told the court that the complainant did consent to the sexual intercourse. However, PW2 said he went to the scene of crime in response to the alarm that was raised by the complainant. If the appellant was to be believed that there was a consented sex, then why did she raise alarm? Common sense would suggest that if the defence of the appellant was true, the complainant would not have raised an alarm when the intercourse was taking place. The courts below logically made a finding that there was no consent from the complainant. The appellant said 4 there was contradiction in the evidence of PW1 and PW2. The courts below rejected the defence of the appellant. They found the witnesses consistent in their evidence and in that respect corroboration was not required. In our case we find that the record of appeal supports the findings of the subordinate courts. The appellant also complained why other witnesses were not summoned. With respect, we agree with the learned State Attorney that section 143 of CAP 20 does not specify the number of witnesses required to prove the prosecution case. In terms of sections 62 and 127 of the Law of Evidence Act, [CAP 6 R.E.2002] PW1 and PW2 were the only eye witnesses to the commission of the offence. It would have been illogical for the prosecution to summon other witnesses who knew nothing about the incident to testify. We see no circumstances making us to have a different opinion. Moreover, given the age difference of 50 years between the appellant who was 35 years, a young person, and the complainant who was 85 years, an old woman, and considering our good African traditions which require such people to be protected and respected, one would rarely expect a person of the appellant's age to commit such animmoral act on the complainant. We have no reason at all for interfering. TheHigh Court rightly upheld the conviction of the appellant and the sentence that was imposed. We agree with the learned State Attorney that the evidence of the PF3 has to be expunged from the record because the appellant was not informed of his right to have the doctor called for cross-examination under section 240 (3) of the Criminal Procedure Act, [CAP 20 R.E.2002]. 5 See among others, the case of KurindilaBamgiliana V R Criminal Appeal No. 313 of 2007 (unreported). Lastly, we note that the appellant was charged under the Sexual Offences (Special Provisions) Act 1998. The appellant ought to have been charged under section 130(1) and 131(1) of the Penal Code. Given what we have said and observed, the appellant's appeal is entirely dismissed. DATED at MWANZA this 2day of August, 2013. J.H.MSOFFE JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL I.H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. P.W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL