20151214 TZHC Mwanza

, .. -~:.. ,._ 1 · IN THE HIGH ,COURT ·o.F TANZANIA IN THE DISTRICT REGISTRY ; ' APPELLATE JURISDICTION- AT MWANZA HIGH COURT CRIMINAL APPEAL No. 119 Of 2015 (Originated from Criminal Case No. 33 of 2014 at the District Court of . Nyamagana at Mwanza) EDISON SIMON MWOMBEKL ..... ~ ....................... ~ ........... APPELLANT ' · -versus THE REPUBLIC• ■ ••••••• 1 1 1 ■ •••• •• ■ •o• ir ■ ~ •"r:i- ■ ••n•• 111 ' • • • • llffnl"!e i: 1:1111 • ■ a ■■ ••••• ■■■ o ■ RESPONDENT W ; JUDGEMENT 7/12/ - 14/12/2015. J. A. DE-MELLO, J;. A Rape charge was .levi@d against the Appellant under section 130 (1) (2) ( e) &:131 (1) of C-ap.16 R~'iE 2002. The District Court-of Nya01agana in ;Criminal .case No .. 33 .of" 20-14 analyzed , evaluated the evidence brought before it and~ satisfactorily convicted and sentenced him to a -~ mandatory thirty ~ has lodged this Appeal wit:h three-.(3)_ grounds as follows; 1 ·--. ------:-···. --96- 1. That, given the apparent weaknesses in the evidence adduced by witnesses for the prosecution the learned Trial Resident Magistrate erred in convicting the Appellant of the offence of Rape. 2. The learned Trial Magistrate erred in not drawing an adverse against the prosecution for failing to tender the. medical report/PF3 issued in respect of PW1 and to call the doctor who examined her after alleged Rape by the Appellant. 3. That, the learned Tria, Magistrate erred in relying on evidence which was collected by an investigator who was legally not VJ allowed to do so. Counsel Nasimire fending for the Appellant prayed to submit the grounds generally commencing by stating that, the entire evidence on record was ~oo weak and, highly contradictory to sustain a conviction. Much of what transpired during Trial from the Prosecution witnesses was pure mere fabrication and lies, he further observed. That, as opposed to the Principle for not interfering with the. Trial's Court findings, Counsel said there are fundamental matters of ·ating. nature which the Tr·ial Court did not addres_s and; which this C up and address. This, Counsel further 2 emphasized based in light of the case of Mohamed Matula vs. R, [1995] TLR 3 and that of Pia Joseph vs. R, [1994 TLR]. PW1 one Beatrice Lucas and, the victim evidence raised a lot of doubts • . . . as to her credibility; The testimony that she never raised alarm when attacked on that fateful night for reasons of fear of being killed does not have basis, it being quite larne. Counsel brought page 12 the 3 rd, 5 th and· 7 th lines. None of the. remaining. Prosecution witnesses did corroborate ·her story, making her evidence doubtful of whether she was telling the truth. She wasn't credible at all Counsel reiterated. While PW1 admitted to have reported the incident to the Police on the 11 th of January 2014 asJO reflected in page 14, the second paragraph, line 2 & 3, strangely, the charge sheet for the offence is dated the 17 th of January 2014 the date which the purported rape occurred. Such variance on dates goes to the root of the matter thus raising doubts,. Counsel stated. The case of Makelele Kulindwa vs~ R, Criminal Appeal No. 1758 of 2013 (Taf:lora Registry). was shared. The offence which a·11egedly happened in Mwanza city was reported in Shinyanga Police station on the 21 st of _January 2014 raising further issues a ~ h y the choice.· In her testimony, Counsel explained that, PW°l h,a Magu where her uncle resides who in 3 ) -qz-, turn forced her to return to Shinyanga where her mother lived and acco"mplished everything there thus, unreasonable delay for no valid and justifiable grounds. It was the case of_ R vs. Amsi Marangi & Another [1970] HCD No. 56,'that; " .. ~such delay should be taken with a lot' of caution". ·.The· claim by· PW1 that she was a virgin '-prior to the Rape as depicted in page 14 the 2 nd paragraph, lines 16 - 18 together with the ·whole conduct thereaf~er, leaves a lot to be desire, as to the truth over these allegations, Counsel noted. Logically and, sensibly, PWl could not make all the movements from Sumai Hotel to Magu and then Shinyanga without lD reporting and,· attending to medication. This. was even disclose by the Doctor, who attended the victim PWl when interrogated by PW4 Dtc. Cpl. Joseph revealing that she was not 9 virgin. With virginity, certainly then bleeding was evident but, which PWl's clothes or pants were never tendered for proof during Trial. However, PW2 the victim's mother testified that her daughter said she never bled. All this leads to contradictions and. inconsistencies which the Court ought to take into account when rendering .. . . justice, Counsel lauded. ·Attacking PW3 the uncle's victim, allegedly a qualified school teacher acten1ll1,r..aJonably if at all true, not to take up the . ~ . 4 __q'9- issue right away from his niece w~o arrived at Magu right after the incident,_ . . Counsel wondered. If true then he PW3 could testify in clarity the state of · which PWl was seen more so the blood stains if any on her garments. Page .· 24 line 3 reflects nothing to assist the Court. Addressing the evidence by the Police Detective Cpl. Joseph Counsel reminded the Court of the concern earlier . raised with regards to reporting in .Shinyanga instead of Mwal'.lza. Where, who and under which mandat~ did PW4 assume powers_ to do so, Counsel questioned which contrary to Police Guidelines Order No. 34 which stipulates of the laid down procedures to be followed. All th_e way from Shinyanga, PW4 testified to arrive in Mwanza then straight to W Sumai hotel inspected the register and confirmed the Appellant Edsoni . . Mwombeki to have booked room number 8, the same room the victim · PW1 testified to have been kept .until when she was raped. Exhibit P2 with reference to the register could have been properly tendered by Samira Mahenga the Manager of the hotel whom the prosecution claimed to be at large ev~n after being summoned and returned 1,rnserved by the village, Chair. It was was admitted and marked exhibit Pl after invoking section 348 (2) of Cap. 6 __ even after objection by the Appellant C?,f Samira's statement which was niarke · it ·'P2'. The Chair's ·name of the villagf: in 5 . ... .·.·.··.~··· . '• . -·-{ffi_ Sikonge where it was said San1ira went and endorsed it was not even disclosed. The procedure for the objection as to the admissibility of the said caution statement worse more was flawed by the Trial Magistrate by not giving a ruling and reasons thereof; Counsel wondered. With all due respect, that being one of the implicating allegation, it was logical and lawful to have the register during Trial for admission as proof. This was nqt done. Whether or not the Appellant's signature on the. register for comparison with his ID tendered and marked Dl exhibit reading Simon Mwombeki as opposee:f to Edson Kate ra_ises eyebrows as to the authenticity and veracity of the identity of the culprit. VVith the contradictions raised by PW4 and PWS both ..10 recording the statement of Shalom Massavi1e and PV'tfl respectively, with PW5 stating PW1 to have slept at i(assa school, are all issues of relevance that the _Trial Court ought to consider'. Where exactly did PVJ1 spend her night was not clear as evidence of PWS said 'Dada Neema' is best · positioned to say where exactly did PW1 sleep. Page 34 para 3 lines 5 & 6 has this. This ~Dada Neema' was. not even summoned during Trial. In tlie fin~I submission and, while underscoring the principle that the best witness in rape case is the victim herself, P 1 could not be a befitting model bcised 6 -jfil- Nasimire is of the view that a benefit of-doubt be given to his client the Appellant. Opposing while defending the Trial's Court- findings, Zaituni Mseti for the Republic- had it that nothing was wrong with the dates on which PW1 testified with regard to the Rape, reporting and, taking of statements. True, I she admitted -th~ matter had to be reported in Shinyanga··after the advise given by the uncle PW3 where PW1 went straight from Mwanza as she was to ultimately report to school there. Further that, it was not an issue that the · Appellant being a respectable and, highly regarded Pasto,r was residing in Shinyanga same as PW1 and her family whom he· was entrusted PW1 a LO girl child for school in Magu. PW2 anq PW6 the victims mother and Jackson a relative corroborat~d how they together with PW1 left Shinyanga · with the Appellant entrusted for exit to. Magu. The Appellant was also dropping his ~hildren studying in Kassa school in Mwanza. In fact, 1t was expected that PW1 is dropped at the bus stand prior to the . Appellant dropping his children to Kassa something which never took place.__. The Appellant without shed of fear lured the victim PW1 to a resting room . / nu:nber 8 in Sumai hotel and, onfy ~6 return very late at around·:11:00 p.m pretending to have been enga :i"'Qther errands and thus not safe 7 . ) . for her to leave then. Room number 8 was booked and in the name of Simon Mwombeki the Appellant, as recorded in the register. This, State Counsel found appropriate much as the name 'Edison' was not recorded butJ the Appellant's two.·last names, Entering the hotel room the Appellant brought food and, started undressing which raised fear to the girl victim PW1 and, on questioning, she was cal;Jtioned not to shout lest she end up be!ng killed. She wa~ then raped instan~ly. The act and with full mind and knowledge of the happenings, PW1 had no cause for mistaken identity, being very familiar from Shinyanga and, who as she stated had .once prayed for demons when young. Page 12 refers, State Counsel stated. Whether or not l() PWl, was a virgin or not, consent is immaterial as rape does not put these as a legal requirement. The case of Salum Makumba vs. R, Criminal Appeal_ No. 94 of 1-991 was referred to fortify Counsel argument that the victim of rape is the best witness. PW1 the victim was a minor, sixteen years of age then. With regard to not reporting to Mwanza, Counsel drew the attention of the Court of the prior plan in which PW1 was supposed to go to Magu for. school after being dropped at the bus · stand in Mwanza' something that was interrupted_ o of evil- intent by. the Appellant. Natural_ly and, based on t_he inform~ , PW3 the uncle and in panic sought ·8 -tD3- his logical mind and found it wise to send her back to her mother in Shinyanga. The rape news must have shocked him she observed, imparing his right thinking, at that very instance. He had with him the victims mother message to receive the girl and only to learn of that brutal uncivilized act from someone the family had respect all along, Counsel observed. While the mother PW2 was all along com~unicating with the ·Appellant to ensure: that . . her daughter_ is timely received ·by his uncle after leaving Mwanza; it is until 18:45 that the Appellant told her to have left Kassa school for bus stand where PWl will be dropped for Magu, the Appellant never disclosed to have left her at Kassa as alleged. In typed proceeding in page 58 the Appellant U) contradicted himself on this. In obedience PWl was returned to Shinyanga that 18 th day of January 2014, informed her mother, reported to Police . . who issued _Pf3 and was examined medically. With or without a medical . . report, in the event a witness is credible and reliable, her own evidence is sufficient Counsel reiterated. The case of Prosper Njorera vs. R, Criminal Appeal 73 of 2003 in which the Court of Appeal established that it .is n_ot always the case that medical evidence is necessary much as other pieces of evidence points to none other han ~he culpriL As oppo~ed to the Appellants weak rroboration from PW3 and PW6 in 9 ) ' ~-J_04-- . support of PW1's. evidence was adequate and, sufficient to· prove beyond reasonable ·doubt, Counsel stated. The dates as depicted refereed the offence to have happened on the 17th while the reporting was on the 18th . . the-following day in Shinyanga, State Counsel concluded. W.orth noting here is that the time estimated by PW1 and, from a girl of tender age that of 11:00 p.m ·when the Appellant retwrned is n<?t that an issue considering it was close to midnight to make it a· _new other day. However, it does not ·goto the root of the matter, Counsel noted. PW4 being a Police officer and, in which the matter was reported was not limited to pursue investigation by law to his area of confinement. After all he was taking responsibility. as he f 0 assumes his role after the matter was duly reported. Counsel observed the· Appeal to be nothing than a routine nature for victims to try his luck while aware of the truth. It ought to be dismissed it being baseless Counsel concluded. In a brief rejoinder, Counsel Nasimire cautioned the-Court on the legality on which PW-4 assumed powers to· investigate outside his jurisdiction . . notwithstanding the admission by PW1 who· in page 14 of the typed proceedings, acknowledged ~ z a Police to be . the right place to do so. The reporting in Shiny~oubts as to the truth if not fabrication 10 ~. , 1,05- and, ill motive by PW1 9gainst the Appellant. At least a movement order could be sought if at all to assume mandate, he stressed. The entire case · raises concern over the 'credihility and reliability' of witnesses and, worse even the victim herself PW1, he repeated. Dates, controversial as t~ey are can not build a cogent case for the prosecution against his client, he concluded. the Appellant has now taken exception to PW1's testimony by putting her credibility in the limelight. The charge against the Appellant is the one brought under Section 130(1) (2) (e) & and 131(1) of the Penal Code Cap 16 states:- 'It .is an offence for a male person to rape a girl or a woman". . . (2) (e) With or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man . . Not in dispute is that the Appell~iliar to the victim's family Pwiand thats the reason he w a s r drive together from Shinyanga to. . 11 Mwanza as the Appellant a Pastor, was also dropping his children to Kas·sa school. · It is also evidenced that together in that trip were two other passengers to include ·two boys student too one who testified as PW5 . . Jackson, during TriaL It is also not in dispute that PW1 never reached Magu wntil the following day. It is also not in issue that, PW1 never reported the matter to Police at Mwanza and did so i!7 Shinyanga_ after she was dispatched by his uncle PW3 on her arrival in Mag_u. It is also not in dispute that PW1 secured a PF3 form and, attended a medical examination revealing ttlat she was raped. Six (6) prosecution witnesses were summoned to prove the case and, of W importance and relevant to this case with a view of corroborating the victims case is PW3 the uncle who was waiting and received PW1 the following day of 18th January 2014. Also is PW6 a passenger student who was in the Appellants vehicle and testified to have seen the Appellant leaving Kassa school with PWl. They were left there he stated. Without any witness, the Appellant defended himself though he testified to have slept at a fellow Pastor one Rwegasira. The def~nce of Alibi was improperly raised during trial. The Trial Magistrate drew thr or determination as hereunder; 12 1. Whether PW1 was raped. . 2. Whether it is the accused who raped the PW1. 3. Whether the prosecution's side managed to prove their case ' ' beyond reasonable doubt? In answering· the two (2) first issues in affirmative, the Trial Magistrate simply as~ertained that the case was proved in ·. accordance with the standards set. in Criminal matters that of proof beyond· reasonable doubt. The Appellant was found guilty and, convicted under section 235 (1) of the Criminal Procedure Act Cap. 20 R.E. 2002. I took quality time to peruse and ascertain the evidence from the said six prosecution witnesses and was impressed by the victims own testimony and (J) that of PW3 the uncle as well as PW6 the innocent student who testified without fear that the Appellant dropped the rest at school leaving the school in company of PW1 at around 16:00 hours. I am even convinced by PW3 testimony that. he followed up with the Appellant as to whereabouts of PWl whom he was supposed to drop at bus station for Magu and the lies pertaining therefrom by· the Appeilant. The conversation .with the Ma~ron who again lied thilt PWl had slept?b but, cut off thePhone on the pretext that the charge wen_t,,s!}Q_n~e versicin by the victim PWl a 16 ~ . 13 · - fV8~. " years old girl and a form four student can not easily be disregarded. The I reporting be it in Shinyanga or elsewhere does not change the fact that she was raped and by no one other than the Pastor the family had trusted. I am one with the Magistrate that if at all the· defence of 'Alibi' was incompetent having been raised not only against the law but ·also failure to summon Pastor Rwegasira to corroborate his defense .. It nothing· more . . than an 'afterth(?ught' and pure lie. I am detain to fault the .lower Court's findings. PW1 a school girl of 16 years of age had been focused and, truthful to expla_in first .to his uncle in Magu then to her parents and Police in Shinyanga. Without mincing words PWl said s_he was locked in a Hotel l,Q she mentioned to be that of Sumai in Mwanza city and which no doubt the Appellant's name was registered. The Appellant neither refuted to have been entrusted the girl for boarding a bus.to Magu no·r that she dropped her as agreed on the same day. Instead, he claimed to have left her at school at Kassa school something that was not in agreement and, inappropriate. How did Kassa school accommodate a student not within their belonging, does not regi\ter in any reasonable mind. The Appellant raiSed a defence of Alibi and, c~~ou. not comply with the law and failing or. refusing to summon his purpor. e\ ' ' for proof during Trial. This is not ~ . . 14 1 -109- agreeable at all. The girl said she felt pain as she was a virgin and bled. In ) the case of Minani !Evarist vs. R, Criminal Appeal No. 124 of 2007 (Unreported) where the Court held; '~It is generally accepted that in determining cases a Court has to look at the particular ·facts of the case. In other words each case . . has to be decided on the basis-of its own facts. This is important because the facts may- not necessarily be same as the other". PW1 claimed to have been a virgin and as a result of forceful sex, she pied as she lost her virginity. Yet still and, in light of the case of Minani Evarist (supra) in further pursuit of penetration, the Court stated; U) "In ·our considered view, the evidence of PW2 (supra) established that there was.p~netration. This is especially borne out by evidence by the victim .. that had carnal knowledge ... Although I felt the act of sexual intercourse to be painful if the appellant had not inserted or penetrated his penis _into her vagina". • I am one with the Republic on the laid down principle that in rape cases the . \ victim is the best witness. PW1 was~ositioned to testify what happened to her. The case of Sal~-~~~ (supra) and that of Hassan ~ .15 I --31._0_ Bakari@M~majicho vs. R, Criminal Appeal No. 103 of 2012 (Unreported) that had a broad interpretation on the expression various of them used by victims· of rape that are quite pertinent. As noted from the charge and impressed by the analysis and findings in the case of Tumaini . Mtayomba vs. R, Criminal Appeal No. . 217 of 2012 . the requirement or not of consent by a victim below age of 18 is immaterial. PWl'was lured and forced into sex by none other than the Appellant himself. I find no justification to temper with the findings of the lower Trial Court. This Appeal is hence dismissed it lacking in merit. It is so ordered. 16