20140219 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MWANZA ATMWANZA HIGH COURT CRIMINAL APPEAL NO. 77 OF 2013 . ' . & .· . (Original Criminal Case No. 169 of 2011 of the District Courtof Bunda District at Bunda) ERICK OU MA @KECH .•................ .,. ............................. APPELLANT 'l! VERSUS I. THE ~Ei>UBL1c·•..•••.••....••••..••••.•..••••••.•••••.••••.•..•••..•.. RESPONDENT JUDGMENT BUKUKU, J.: · Before the District Court of Bunda, at Bunda, the appellant was charged with two offences, namely, Armed Robbery contrary to section 287 A of the Penal C:ode, Cap 16 R.E. 2002 and second, rape contrary to section 130 (1) and (2) (b) .and section 131 (1) ·of the Penal Code. According to the particulars contained in the charge sheet, on 2nd day of September, 2011, at about 17.00 hours, at Machwela Island, within Bunda District, Mara Region, the appellant did ·steal cash money T.shs. 310,000/= ·aHEI one cellular phone make Nokia, valued at T.shs. 80,000/= qll total valued at T.shs. 490,000/= the property of.one Shida dchieng, a n d ~.. 1 immediately before such time of stealing, did use a· panga in order to obtain and retain the said properties. It is also alleged on the second count that on that fateful day and time, the appellant did rape the complainant without her consent. The appellant denied the charges, and a full trial followed. Four witnesses testified in support of the two charges. These were PWl Shida Ochieng, PW2 Benson Osoya, PW3 Jonathan John and PW4 D. 3999 D/Ssgt Simon. PWl told the trial court that, on 28/08/2011 during afternoon _hours the appellant who was acquainted ·with her, phoned him and asked her to go and collect sardines known as 'J~ru". She then told the appellant that she would go on 2nd September, 2011. True to .her word, on that day PW1 went to the _agreed place and found the appellant waiting for her in a boat on the Island. As they were proceeding to where the sardines were, he saw the appellant ta.ke out a sword,, and warned PWl not to shout. The appellant then strangled and _threw down PW1. He then put a matched on her mouth, took off her under pants, and raped her. The · appellant then tied PW1's hands and legs on a tree and took her h a n d ~ I I I took some money T.shs 310,000 and her cell phone valued at T.shs. 80,000. According to PW1, the appellant then sat on a rock and went on threatening her that, if she made an alarm, he will kill her. Later when he left, PW1 said she saw a passing boat. She shouted at the boat and cried for help. People came at the scene where she was, but when they saw her naked, they were frightened. They rushed to the village and when they came back they covered her with a piece of kitenge and untied her. PW1 then told those people that it was the appellant who did :it. Narrating further, PWl told the court that, when th_e search for the 9ppellant was on, they were told that, the appellant had hired a boat. Some people took two boats in pursuit of the appellant. They managed to. arrest him after he jumped out of the boat, and was taken to Kibara Police Post. PW1 was later given a PF3 for treatment. Both PW2 and .PW3, fishermen, told the court how they found PWl tied to a tree and was naked. They narrated that, at the scene, PWl told them that it was the appellant who had raped her and ,robb~d her money and her cell phone. Both these witnesses told the court how the appellant ~L 3 I I t ' was pursued by boat and how he was arrested and taken to Kibara Police I I Post. 1 I PW4 also testified. He told the court that at around 20.00 hours on that fateful day, while on duty, the appellant was brought to the police post by villagers from Nyamguma Island. The villagers were led by their I chairman one Benson Osoya {PW2). A~cording to PW4, the appellant was suspected to have raped and robbed PlJYl. PW4 then gave PWl_ a PF3 for treatment at Kibara hospital. On the following day, i.e.· 3/9/2011 at 08.30 I t am, PW4 interrogated the appellant, ~nd in his cautioned statement, he I admitted to have committed the two ofl:ences. The appellant was informed of his rights but that he opted to g(ve his statement alone. He then tendered the cautioned statement whic~, having been not objected by the I • · appellant, it was admitted as Exhibit ;P1 respectivelyi That marked the I I end of the prosecution's case. I I I The appellant, while admitting to: have been arr~sted on 2/9/2011, I flatly denied committing the .two offences against PW1. He came up wfth a ' I totally different story. According to the Tpellant (DW1), on that fate~- 4 day, at around 17.30 hours he was at Machwela Island :at Kibara. That, he hired a boat with two other youths. He said he had three lamps (karabai) · and one Osram. That, after about 400 meters while sailing, he saw two boats pursuing them, and requiring them to stop. When the two boats approached them, the appellant was asked to return the lamps since they were stolen lamps. According to the appellant, when he refused to do so, one of the people on the boat wanted to beat him up with the paddle "kasia". He was then arrested and taken back to Mac~wela Island where upon arrival he found PW1 and PW2 who alleged that he had taken four lamps worth T.shs. 110,000 and one nokia phone from. PW2's house. Narrating further, the appellant told the trial court that, the lamps were his and that PW1 wanted to buy them for T.shs. 40,000 each but did not pay for them. That, he was taken to Kibera Police Post. On 4/9/2011, he was forced to admit that he had stolen the lamps! When he refused to. do so, he was beaten by the police using a club. In the process, one police ' . cut him with a panga on his left leg. He was taken to the hospital. When . . he wa~ taken be.fore the OCS at Bunda, he told him how he was injured. He was given a PF3 and· was taken to Bunda Hospital where he was treated. He then tendered two PF3's which were admitted as Exhibit Dl collectively. On 7/9/2011 he was arraigned before the Bunda District Court charged with two offences, one of rape and the other of armed robbery. In his judgment, the learned trial District Magistrate, found it as an established fact that, PW1 had been raped and robbed ·by the appellant. Accepting the prosecutrix's evidence to be· nothing but the truth, he concluded that it was the appellant who raped her and: he convicted him accordingly. For both counts, the appellant was sentenced to thirty (30) years imprisonment each to run concurrently, and was ordered to undergo . twelve strokes of. the cane and also to compensate the victim a sum of money of T.shs. 500,000/= Having been aggrieved by both the conviction and .sentences the appellant has now lodged an appeal in· this court. The appellant's memorandum of appeal to this court contains five grounds of complaint against the judgment of the trial court. First, that the: charges were not proved beyond reasonable doubts as required by law. Second, that, the . _trial magistrate erred by relying on the ev.idence of the caution statemen_. · ~ l lIi/ ) - -....' . . . ' : , ' ' / /I , . ' 6 I , which was not included in the list of the prosecutions potential exhibits; ' third, that the trial magistrate erred, by. admitting the said caution ' statement to convict without considering . that the same was obtained ' through threats, promise and torture; fourth, I that the trial. magistrate relied I' , on contradicted evidence of PWl, PW2, PW3 and PW4 and fifth; that, ' • . ' ' the trial magistrate relied on the PF3 of. PW1 and jgnored the appellant's ' ' PF3's tendered as Exhibits. ' ,.I I The respondent Republic was repr~sented by Mr. Karumuna, Learned ' ' State Attorney. He supported the conviction of the appellant. With regard ' ' to the first ground, Mr. Karumuna supmitted that, the prosecution has · proved its case beyond reasonable doubt because, PW1 identified the appellant ·since he knew him before the ' event, and that, . she also named l • ' ' him · immediately thereafter. Mr. Karu~una surmised that, other people such as PW2 and PW3 also narrateq and identified the appellant. With regard to the second and third grounds; of appeal, Mr. Karumuna submitted I ' that, the cautioned statement tenderep was _not obtained by force, since '' . . the- appellant did not object to its tend~ring to warrant :a trial within a trial. I • ' According to Mr. _Karumuna, PW4 g'av~ the appellant an his-rights before iX?t{--· : . . //l~' I' j taking the cautioned statement. As for the contradictory statements, Mr. Karumuna argued that, there were no contradictory stqtements by the prosecution witnesses. If at all, the said contradictions d_id not go to the root of the matter. Finally, on the fifth ground, Mr. Karumuna submitted that, the trial magistrate was not biased. He was mindful of the PF3's tendered by the appellant but found them to be not tenable. He thus prayed that the appeal be dismissed. Undoubtedly, the trial court was satisfied that the offence of rape ' was proved beyond reasonable doubt on_ the basis of the evidence of PW1, the prosecutrix. Time and again, it has been said by the courts that, ' ' it is not enough for the victim of rape to say that she was "raped/~ She must always· go further and allege that there was penetration, however slight. (See: Godi Kasenegala VR Criminal Appeal No. 10 of 2008 (unreported) and Ex. 139690 SGT Daniel Mshambala V.R Criminal Appeal No. 183 of 2004 (unreported). In this case, there is no such . . evidence of penetration. Much as there' is the ev!dence of PW2 and PW3 who found PW1 to .be half naked, thls may well be so, but ·is far from proving ~ape. All what PW1 said in her' testimony was that:- . j~- i 8 l . (,rz I (;y· 1c ~ Ux,1 rJ(J{ I ---- "....... he put a panga on my mouth 'and took off my skin tight I which he put on my mouth. The'n he opened his zip and · . I started raping me till he was satisfied. He then tied me on the tree'~ With this piece of evidence, can it be said that there was leading evidence of penetration in the proof of k charge of rape? In the case of I Hakizimana Syrivester V. R, Criminal Appeal No. 181 of 2007 (unreported} the Court of Appeal en /has amplified the requirement of penetration and laid down guidelines to assist in proof of the offence of . I rape. The Court in the case of Hakizimana cited the case of Mathayo Ngalya@ Shabani v.R and held thusf · . ''For the offence of rape/ it is bf utmost importance to lead . I .evidence of penetration and hot simply to give a general statement alleging. that rale was ·committed without· . I elaborating what actually took, place. It is the duty of the j prosecution and the court to ehsure that the witness gives the re/el/ant evidence which provJ the offence. ......... " (A/4 ·j , . ·.I· . ~ In this sense, I am also aware that, a~ the Court of Appeal stated in ' Selemani Makumba V. R. Criminal ; Appeal . No. 94 of 1999 (unreported):- "True evidence of rape has to come from the victim if an adult ' that there was penetration and no c,onsen0 and in case of any other woman where consent is irrelevant that there was i penetration/~ The above notwithstanding, I am mindful of the fact that, so long as the vi_ctim of rape satisfies the trial cou.'rt on her credibility that the facts ' she narrated to the court on how the offence ' of. rape was committed are . true, all things in the trial being equal,: the court need not _call for further evidence to prove the rape. (See: ~oodluck Kyando V.R. Criminal '' Appeal No. 118 of 2003 and Majaiiwa Guze V. R, Criminal Appeal No. 2013 _of 2004 (both unreporte~) In this particular case, having gone through the proceedings, I find ' the testimony . of PWl wanting. I say' so because in her testimony,. PWl t~ld the trial court that the appellant ~aggec;J her with her skin tight _and . . I /Jjj-·· . , ; I ; . 10 I I ·r c-,V\n ~\ Ci II\; - V 1 '-A. t\ Nrd'\.-- 1 j then after the rape the appellant tied both rer hands and legs to a tree. '' j One wonders, if at all the intention of the appellant gagging PWl with the I skin tight was to stop PW1 from shoutinQ for help, how come the skin I I tight was removed from the mouth after th'e rape while the appellant was I' I there watching her? According to PWl, she managed to shout for help I I I after the appellant left the scene of the cr.!me, which means, by then, she i ' I was not gagged, but at the same time her hands and feet were tied to a I tree!. / Essentially, this is a case which re1ts wholly on the credibility of a witness. All things being equal, the credibility of a witness is always in the I , I • province of a trial court. I have no deart8 of authorities on this aspect. One '' ·such authority is the case of Omari Ahmed V.R. (1983) TLR 52. After I I . I scanning . the prosecution evidence, I have I found that, much as PW2 and '' PW3 told the trial court that they fdund PW1 half _naked, there is no '' I I evidence given to prove penetration, even to the slightest degree of the I . l . appellant's penis into the· prosecutrix:s vagina. It is trite that, in a rape . I • ' J case, the . alleged victim must be fortncoming ' in her evidence . and explain .,' whether or not the appellant inserted ris penis into her vagina in order t o ~ I 11 I I I I I enable the court to make a meaningful finding on whether or not rape was committed. Unfortunately, the evidence of PW1 in this case failed to meet this test. On this ground alone, I would havj been prepared to quash the appellant's conviction for rape. But there ii another equally compelling reason why this appeal should succeed. The other charge of the appellant was that, he robbed PWl money I worth T.shs. 310,000 and her cell phone. In convicting the appellant, the trial magistrate heavily relied on the cautiJned statement which according I . to the testimony of DW1, was obtained by force. It accordingly needed I corroboration in the peculiar circumstances of this case. Furthermore, I am convinced that, the trial court below errel in rejecting the evidence of the .I . appellant to the effect that he was tortured and forced to sign the cautioned statement. If at all the appJllant was lying, who caused the bodily injuries to the appellant as shownin the t~n~ered PF3? · In the case of Dotto Ngassa V. ' R, Cnm1nal Appeal . No. 6 of . I 2002, (unreported) the Court of Appeal held that, where a retracted confession is established to have been ~ade immediately after the suspect .· I . .· ~ 12 ' I . ·1 • has been tortured, the courts should be very cautions in admitting such statement in evidence even under section 29 of the Evidence Act, Cap 6 R.E. 2002. The suspect is not a free agent by then. Admitting the statement whole sale was wrong even if the appellant did not object to its admissibility (see: Thomas Mlambivu V.R. Criminal Appeal No. 134 of 2009 (unreported)._ It is from the above that I doubt the voluntariness of the cautioned statement. It ought to have been excluded. For the foregoing reason, I agree with the appellant. It is a fact that, · the prosecution has failed to prove its case against the appellant. The appeal is accordingly allowed in its entirety. The conviction of the appellant and the sentence imposed on him is hereby quashed and set aside.. The appellant is to be released forthwith from prison unless he is otherwise lawfully detained. It is accordingly ordered . • Delive;~c1:.~i'M;,i~za. - This 19th Day of February 2014. 13