20160805 TZCA Arusha 3

IN THE COURT OF APPEAL OF TANZANIA . ATARUSHA (CORAM: RUTAKANGWA, l.A., KILEO,J;A., And MASSATI, J.A.) CRIMINAL APPEAL NO. 453 OF 2015 LEONARD SALIM KIMWERI ... ................................ ................... APPELLANT VERSUS THE REPUBLIC.~! ■ •••••••••• ■ ■■ I ■ •• •.• ■■■~ •• ■ ■ Ria ■■-■ -~•-·····~-!' .•._. ···•11 ~-II ■■■ ••• ■■ I ■■ •• RESPONDENT;, • (Appeal from the de~ision of the High Court of Tanzania ' at Moshi) {Sumari, J.) Dated the 22 nd day of July, 2015 In DC Criminal Appeal No. 21 of 2014 ••••••m••••••••••• JUDGMENT OFTHE COURT . 1st & 5th August, 2016 .. RUTAKANGWA, J. A~: · The appellant was married to one Asha Hassan. They both resided at Gonja village in Same district, together with their 13 year old granddaughter, Niwael Omary. On the afternoon of 26th May, 2013, going by Niwael's account, while Asha was not at home, the appella_nt took her into his bedroom. He then undressed her, made her lie on the bed and proceeded to have sexual intercourse with her. 1 As fate would have it, Asha returned home early enough to find the appellant ravishing their granddaughter. Her sixth sense led her to promptly lock the door of the room from the outside and she went to . inform her neighbours. The police were also informed, Finding himself trapped inside his own bedroom with his· granddaughter, the appellant,. I in his attempts to save his neck; made Niwael exit through the window. The appellant remained inside the room until the door was opened after ..... the arrival of the police. Niwael narrated what had. befallen her. The • appellant was arrested and charged with raping Niwael in the District Court of Same district ("U1e trial court''). At the trial, Niwael te·stified as PWl, while Asha testified as· PW2 against her husband. PWl Ntwael; in her evidence given on oath, was . very categorical. that the appellant after stripping:, her n9 ked penetrated ·.·• his penis into her vagina, She went further to reveal that, that was not . the first time, for the appellant to carnally know her. The medical oft'.icer who examined PWl Niwael on the same day at Maore dispensary, one Chambua E. Mbwambo (PW4), confirmed to the trial court that he found her with a ruptured hymen and blood in her vagina. 2 • In his' sworn evidence,· the appellant claimed that on,. ·.th~ material ' ,. ' . •day,.,after taking lunch, he went in his room. for a. nap. After .a few hours he- heard noises outside his house. He got out of bed but could not wa_lk. out of the room as the. door had been locked .from outside. He. got out of the room, after the arrival qf a police officer, who arrested_ .him an~ took .•_. him to Ganja police post and l~ter charged him. ' The trial court after considering the entire evidence on record, believed the evidence of PWl and PW2, found the appellant guilty as charged, convicted him and sentenced him to thirty (30).. · years ·imprisonment. Dissatisfied with' the conviction · and sentence, - he,·:. :. . appealed to the High Court. The High Court, sitting as the first appellate. court, dismissed his appeal entirely, hence this appeal. The memorandum of appeal lodged by the appellant _:fr{~this· Court- contains eight (8) grounds of complaint, which can '1:>e condensed as .. follows: One, the case against him was not proved beyond reasonable doubt. Two, the learned first appellate Judge erred· in law in not • discounting the evidence of PWl Niwael which was received without a voire dire examination being conducted. Three, the ·1earned first · appellate judge·· erred in law in failing to note that his trial was not conducted in camera. Four, the learned first appellate judge erred in law 3 when she abdicated ."her duty of subjecting the entire evidence to an •• . • . , I . objective scrutiDY", lea_tjing to a .failure. of justice as his defence w,as not : ••• • • , .• • . ': I · ... . considered. Five, one essential witness, the chairman, was not called. 9y .: ,. . . : the prosecution to testify. Six, the first appellate judge erred in law wh~n , · she failed to note.th_at the PF3 was tendered in court by the prosecutqr . .: ·.,. Seven,. the first app~Uate judge erred in .law .in acting. o_n contradictofY'.:· _.. evidence. i -· ' . ': ; The appellant appeared -before us ·in person to prosecute His appeal. He adopted his grounds of appeal and h9d nothing of substance ·>i.: . . : . . . . . . .: . . .. i to tell us in elaboration of them. Ms. Tarsila Gervas~ learned State:Attorney for respondent Republic, while finding nierit in the fourth ground of appeal,. urged us to dismiss the appeai in its· eritfrety. it was her contention that-although-the learned··. first appellate judg'e did not .consider at all the defence case, this ·· omission was a curable one as this Court can step into the shoes of the first appellate court arid do what that court failed to,_ if nq patent failure of injustice was caused. We agree with her. On - the second ground of complaint, which ·was one of the complaints in the High Court, .Ms. G~rvas found it wanting in merit as the 4 trial court before receiving the evidence of PWl Niwael conducted a voire dire examination: and found her to have a .clear understanding of the nature of an oath~. We ~ccept Ms. Gervas' submission, as it is. dear. on page 6 of the record of appeal that the learned trial niagfstrate· fully· complied with the. mandatbry provisions of section: 127 (2) of the . ' . . Evidence Act, Cap. 5· R.E. 2002. We accordingly dismiss the second ground of appeal. We have also found the· 'third ground of ·appeal· equally lacking in ·merit. It is true that ·the ·trial was conducted in open court, but the appellant has n·ot demonstr~ted to us how he was prejudiced by' this. We wish to adopt the reasoning _pf the learned first appellate judge, relied on . by Ms. Gervas in her sL1bmis~ion, to the effect that:- 'proceedings to be .held in camera is intended /O: ., . protect the victin-1 · of. the . crime . . and not the,. , . ~ accused/appellant. Failure of the trial ·magistrate · to abide .to.:that did not occasion any.miscarriage ofjustice to .the appellant. " Indeed, . in our considered opinion, had it not been . for the firmness . of mind of PW1 Niwael, who was not even. cross-examined by the 5 appellant, it was the prosecution ·which stood to be prejudiced:. by this ··-. irregularity. We accordingly dismiss thi? ground of appeal. The fifth ground of appeal ought not to detain us either. It is true · that PW3 No. E. 9965 D/C Faustine -told. the trial co_u_rt that when he ·,.-..:, visited the scene of the crime and found the appellant . locked inside hi~. . bedroom Ile was a·ccompanied by the. Chairman of Mheza village. What . the appellant failed to ._appreciate- is the naked truth that by the time these two officials arrived, the offence had already ·been committed ·and . . . ·. PW1 Niwael was not.<in;-·the ·room. As the ·appellant _adm.itted in ·his_ . . defence, :he was aio-nl~f-iil the ·roorri-":and· thats what PW3 D/C Faustine • -. ••• . . • • ; ; , ~ l • • . ~ . ' testified on. The ev_idence ·of the chairman therefore would.:not have made any .difference. This ground of complaint, therefore, stands dismissed. It is the contention of the appellant that PW3. D/C Faustine and PW4 Chambua Mbwambo contradicted each other. As an illustration of this, he referred us. to the evidence _of PW3 D/C_.Faustine to the effect _ that the "doctor also noticed that sperms in the vagina of the. victim." · . . . This he contrasted with the evidence of P\N4 Mbwambo, to the effect 1 that 'also in the vagina there was a bloo~ nothing rnore was detected " On the face of it, these are patent con~radlcticins. However, they do not 6 •. go to the. root of th~· case .. The best evidence of. whether PWl Niwael . · was raped-·and by whom, ~in the circumstances of this case, . could only. . ' come from . the prosecutrix ·.herself· .and not the arresting and/or .. - ' .' \ •, examining officers. Th.ese contradictions, in. our respectful opinion, did ._ . not affect the quality• of the prosecution case which was primarily. premised on the evidence of PWl Niwael and PW2 Asha. This ground of appeal fails too .. .·.. / .. ··~·•.· .. , . , •, Ground seven .of appeal, lacks merit too as the PF3 was tendered in evidence through PWtNo; E 9965 D/C Fausti~e, who had issued it to PWl N·iwael and. had been returned,to -.him after PW4 Mbwambo had · ·: examined :the prosecutrix. •> ,_;. ·:· .- . • . .. The last ground of appeal we have to contend with is the first ground, in which the appe.liant' is complaining that the case agafnst him was not proved beyond reasonable doubt. - To satisfactorily. provE= the charge of rape, the prosecution had a duty to prove beyond re.asonable doubt that on the mentioned date, the appellant ~ad carnal knowledge of PW1 Niwael a -girl below 18 years of - age. There is no dispute here on the fact that as of 26 th May, 2013, PWl Nlwael was 13 years old. It is now trite law that in sexual offences cases, 7 ! · the best evidence on rape is that of the: pros.ecutrix :.who i.s fotmd to b~ truthful. by the court(s):. See,}or instance, Sulemani Makumba v. R~, [2006] TLR 379, Vicent Ingi v. R., Criminal Appear No. 527 of 2015 ·...... . (unreported), etc. ' In this particular case, two key witnesses gav~ direct evidence or, the fact that PWl Niwael was on 25/05/2013, at around 16:00 hr~.: . l raped by .the appellant. These were the prosecutrix herself (PW1) and·.· • I . · .• :. I PW2 Asha. We have already shown that PW1 Niwael t~ld the trial court . . that after the appellant had called her into· hts ··bedroo.m, he· undress~d: . . . . . . I . •~ , her and himself, lay her on a bed and.'had sexual intercourse with her by .,,··.· . ,. . . . .. ·, inserting his penis into· her vagina. PW1 Niwael, in spite of the· trial' bei17g -: . ...: ;:· .·- ~ . . ! held· in open court, was very candid and. unequivocal .on this. After her evidence in chief, the appellant was given· opportunity to cross-examine . her but he failed to do so. The evidence of PW2 Asha was equally.: ' .. damning to the appellant as already shown above. She, too, was never, •.. cross-~xamined by the appellant. On the ba·sis of the Lindiscredited evidence of PW1· Niwael and PW2 . . . . Asha, the learned trial Resident Magistrate had this· to say:.: "This court had the opportunity to examine the evidence of PW1 who informed this court that the 8 accused raped her. She said the accused took .. and lied on her and penetrated his penis to (sic) her vagina. The acc'-!sed not even asked any question to her on. cross-examination. This is a clear indication that the accused did commit such . . offence of rape. This court also considered _the evidence of PW2 ASHA HASSAN the grandmother of PW1. Her evidence corroborated that evidence of PWl .... 1/.,_ .. A~~r also taking into ',acco.uht the evidence of PW4 Mbwambo, he foL1nd t_he. charge. proved 'beyond . reasonable doubt. The first learned_·· appellate judge upheld th~ con~lction after fi_nding both PW1 Niwael and · PW2 Asha to be credible..w,itnesses. . ,[ She '.· could not have held otherwise:· , •. ; . .... The appellant's defence, w~ are convinced, was a figment of his own · imagination. In our .con;;idered '. . . opinion, . :-. the undiscredited evidence of - these two prosecution witnesses proved the guilt of the appellant to the . . . . . . . . . .' : hilt. The Hig~ Court, therefore, rightly dismissed the appellant's appeal.· ,- .· · All said and done, we find this appeal to have been lodged without any reasonable grounds of complaint. It is accordingly dismissed in its entirety. 9 accused raped her. She said the accused took ·. . ... ~ .. ' ,· . and lied on her and penetrated his penis to (sic) · her vagina.. The . . accused not even asked any . question to her on cross-examination. ·This is a clear indication that the accused did commit such offence of rape. . °This court also considered the evidence_of PW2 ASHA HASSAN the grandmother of PW1 . .Her evidence corroborated that evidence of PWl. ... // , .. . After also taking into a_ccount t~e evidence ·of PW4 Mbwambo·, -he -.· : ~: .... ' , _found_ the. charge proved beyond· reasona~le doubt~ ,Th_e first learned:'."::,·<: :_ •:. . ' • ' \ • ,,: , • ~ • 1' I ., ~ • :~ • ; • • ,' . ·t. ' ... . appellate judge upheld the ·conviction after_ finding both PWl Niwael and;.:-:·--:.<,-:.:_ .-.- PW2 Asha to be credible witnesses. She could not have held otherwise>·· -. · .-. · .. The appellant's defence, we are convinced, was a figment of his own:-- - .... ... , '·,· imagination. In our considered opinion, the undiscredited evidence of._·_: --. : • these two prosecution witnesses proved the guilt of the appellant to the ____. . . hilt. The High Court, therefore, rightly dismissed the appellant's appeal. All _said and done, we find this appeal to have been lodg~d without any" reasonable grounds of complaint. It is accc;>rdingly dismi~sed _in its entirety, 9 .. I DATED at ARUSHA t_his 5t~ day of ·August, 2016 .. . E. M. K. Rl)TAKANGWA JUSTICE OF APPEAL E. A. KILEO JUSTICE OF APPEAL' _.· . _S. A .. MASSATI . juSTICE oi= APPEAL . 10 ·.