20160914 TZHC Dodoma

s. IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 13 OF 2015 (Original criminal Case No. 34 of 2014 of the District court of Manyorii District at Manyoni) A._&J1 SAiD flhI'dNIIIIlIUVSIIINEIIINI III •IIXRI I.......a...hl..... VERSUS F1E .EPLJBL..IC JUDGMENT 1113 & 141912016 KWARTKO, 3; he ppeI1ant herein was arraigned before the District Court of Manoni with the offence of Rape contrary to section 130 (I)(2) (e) and 131(3) of the Pe-Inal Code [Cap .16 Voil.T 7of- the LwRE:2009]. It was aHegedthät hween February and March, 2014 at unknown time. at Kaoehi Area, Manyoni Township within the District and Region of Singida appeUnt had carnI know'edge of one ZAMDA D/O SAMSON aqod ñve 5) years. The appellant denied the charge whei - èT the jor6secutio.,n calIed a totaF of: five witnesse's to prove the same. The evidence by the prosecution can be recapitu'ated as follows: 1 The appellant herein was living in hs brother's home where the corn ainant ZAMDA SAMSON, PW3 his niece also lived. On 5/3 12014 at 09.00 hours whUe TATU MOHAMED, PW1 who happened to.be appellant's sister-in-law. (wife of his brother) was cooking and PW3 playing around with her young child she overheard. PW3 shouting to the child that it should, not climb over her abdomen since her uncle used to do that.. This utterance caught PW1's attention and inquired from the girl who among her uncles was being referred to. PW3 remained silent. However, thereafter when her sister-in-law JOHA MUSSA, PW2 came the two interrogated the girl who said the uncle in reference was the appeflant herein. In her evidence PW3 said appellant had sexual intercourse with her vhenever PvV1 was absent and she felt pains but he threatened her and used to give her money to buy bans (bagia). Upon that information report was sent to Mama Said, ten cell leader who came and bot,h inspected the girl where her vagina was found to, be had', some fluid.. Report was sent to police and the girl was . . . . taken' to hospitaL.. At the hospital •PW3 was examined by KASILI .:_.1At7[flA.PW5_.CuiIOffh.fO nd 'bruised,: aAd" loosE, .vaqina. Theè were fi Thihliedtcred to- be soerms That,afthogn tiC had could nQt.. get results. s nce P1) ras fffledwhch was lendeaed by WP investigatoi oF this case but later identfied by PW5 Ti nion'that thegiri was raped. 2 In his defence the appeUantdenied th.e charge an.d evidenced that he was suffering from AIDS and whenever asked for food could not be given since his brother: had restricted it. He would go to neighbours to beg for food .and.:one Samaritan MUSSA DALALI advised him to sell plotof land to get money. but his relatives refused hence decided to implicate him with the present allegations. He wondered that if at all he raped PW3 she must have been infected with HIV since he had tested positive. Andthat no any neighbours came to testify in relation to the charge. At the end of the trial it was found that the prosecution case was proved beyond reasonable doubt hence appellant was convicted and sentenced . to thirty (30) years imprisonment inste ad of lawful life imprisonment as he said he was HIV Positive. On being aggrieved by the trial court's decision appellant filed this appeal.upon eight grounds of appeal which raise the. following six essential grounds of complaints: not plead guilty to the charge. 2 That only family members testified- at the trial againsi the appellant. . . . .. meno-ught- to have testified at the triá/ I. Thai;, If PW3 was really raped by the appellant she must have - been infected with HIVas he is HIVpositive. That this case was fabricated against the appellant since he has grua'es with his family members. That the prosecution case was not proved beyond reasonable doubt against the appellant. When this appeal was called for hearing at first the appellant said he would have anything to add after he heard want the respondent Republic had n respect of his grounds of appeal. Hence, on the other hand Ms. Mgoma learned State Attorney who appeared for the respondent/Republic opposed this appeal. She argued in the first ground of appeal that the record does not show that the appellant pleaded guilty to the charge and evidence was called to prove the same. Secondly, Ms. Mgom.a—contend:ed that not oily. :farni!y members testifteagainst the appeUant s.PW4.ànd PW5 were nOnfami iT members ence though itdid not.:ffect thetrUththat. the also Masoud Msrnenos evidence wasof nã ifit1cEthat is why he was not ciied to testify and. If the 4 app Rant foUnd his evidence material he could have;calied him on his side to testify. FoUrthly, the fact that only few days had elapsed eveh if PW3 was infected with H1V same could not have been detected. Though; PW5 said specimen were taken for further examination but he could not get results; Ms. Mgoma contended . Fifthiy, it was argued by Ms. Mgorna learned State Attorney that there was no evidence or circumstances to show that the ppe!lant's relatives fabricated this case against the appellant as it was PW3 who revealed this incent when she was playing with a baby. Lastly, Ms. Mgoma submitted that the prosecution case against the ---------appe!!ant was proved beyond reasonable doubt. That PW3's evidence was enough to convict the appellant since she mentioned him as. assailant .. -.pplicable:here is section 127(7) of the Evidence Act [Cap. 6 R.E. 2002). But aso P4V3s.evidence was corroborated by PW5, a doctor. A case of OMAR Y KJJL/U V R, criminal AprNO23f 2004, court of Appeal of Tanzania at Dodoma (Unrported)was referi ed to the effect that perietrationhowever slight is sufficient to prove rape. : 5 She thus argued the court to nuliify the same and replace- it with proper one as given in section 13 1(3) of the Penal Code. In his rejoinder submission the appellant said hedid not rape PW3 who was his sister's daughter and he was not taken to the justice of the peace. That, he used to give PW3 money since she was sometimes not given food and that they are scrambUng over his deceased fathers estate. This court is now required to decide whether this appeal has merit. In deckiing this issue the court wiU deal with grounds of appeal in its chrohological order as follows.; Regarding to the first ground of appeal the record is clear as rightly submitted by Ms. Mgoma learned State Attorney that the appellant dehied the charge hence evidence was brought to prove the same. Therefore, this ground ofappeal has no base. Md r4gomthat rhe prosecution -- cae prisedalsoôf non-family rnembcrs1 such-as-PW4j--WP O1 DC and. Doctor• 'KASILI MAKELEJA. PW5. Therefore, the mmbersto give evidence of a - (unreported). This ground of appeal also flops. ... . In the thftd ground of appealthis court agrees with the appant that the. afleged ten cell leader MAMA SAID who was c.aed and inspected PW3 w a s impqrtant..witness to testify. PW1 and PW2.. said it was the ten cell leader who upon inspection of PW3 found. her vagina abnormal that is when, the matter was reported to police. That, MAMA SAID was crucial witness to tell the court her initial revelation and corroborate PW1 and PW2's evidence to that effect which essentially prompted.thern to report the matter to police. The court was not told why MAMA SAID did not testify. This court treat the omission adversely on the part of the prosecution (see also AZIZA ABDALL4H V R [1991] TLR 71). But, on., the other hand this court disagree with appeilant that omission, for his brother to testify affected the case. This is so because nc evidence was given to show that the brother was at home when PW3 allegedly mentioned the appellant as her assailant/rapist. This ground of appeal succeeds in part. As regards to the fourth ground of appeal, first there has not been any medical evidence as to when someone canbepot1'ieiHiVttd upon infection as Ms Mgoma contended that - only -fv days Lad elapsed frd dotpr eve - - a -rer e:entencIere& -tG that - tThjspart of complaint fails - - Howeve-asTdi'ftther PW3Was rapd the e'idence to that effect is hers . and mediai doctor, PW5. Now, while P-W3 said the appellant used to 7 have sexual intercourse with her on severaLoccasionsjaeaetration however slight ought to have been proved. P'W1 and 'PW2 only said together with ten cell leader ins.pected PW3, and found abnormal vagina. We did, not get evidence to prove what they meant by abnormal vagina. And the alleged fluid ought to be proved medically; that is when medical evidence is needed. As to the medical evidence there is P'vV5's testimony. This witness said' he foundbruises in PW3's vagina but went ahead in his report to conclude that there was crushing wound caused by a penis. It is this court's view that what PW5 ought to report is kind ofinjuries he found in the vagina and what nature of object• might have caused the.. same. ...To conclude that it was caused by penis was being judgmental which is . doubtiul on his part. This witness did not even talk about stateof PW3's hymen given her evidence that she was being sexually molested several times before.. - -Ad-'this--court-•wonders as to whythe aiegcd laboratory results were 51befrePW5- testified-in-court This is so because PW 'ken-to-hospita l-cr7/-3 -/-2&-1-~Lwhere specimenwere sQoposedjy taken the court do not thine s weëti - Ar1d eyeriif PW5's shift Ob thno stop Tab-toiy-exarn.i'nation and 'preparation of report. TherefOre—PW-5only exaggerated his evidence when he said the lgdfluid4. PW3's vagina• were spermatozoa.. Therefore, it is doubtful astowhether'PW3 was reaUy raped. As to whether appellant was involved in any sexual acts with PW3 the same remains doubtful since as PW1 said at first PW3 remained silent upon inquiry but until PW2 and ten cell leader came that is when she mentioned the appellant. Not forgetting that at first PW3 said her uncle used to lie on her abdomen but there were two uncles in the homestead, the appellant and PW1's husband. As to PW1's husband, Masoud Msumeno, definitely PW1. had interest to save as ,a spouse. Thus, as said earier the, afleged ten cell leader was important witness to clear the doubts, Henceforth, while in this case medical evidence is lacking as to whetherthere were HIV virus in both the appellant and PW3 but it has not been proved that PW3 was raped and the appellant was the rapist. This ground of appeal thus succeeds partly as shown above.. nd Un uq ioundiioa ppea, the- evdenceis have st la- Therefore, the allegations of grudges this court finds as an afterthought bythe appellant This ground of appeal fals. Ee Lastly, for the foregoing, the court is settled in mind as in the sixth ground of appeal thatthe prosecution case at the trial was not proved beyond reasonable doubt against the appellant. The court have explained the doubts in this case and the law says that where there are doUbts on the prosecution case same ought to be resolved in favour of the accused and•presently they are resolved in favour of the appellant. Conclusively, the appellant's appeal has merit and it is hereby aHowed:, conviction is quashed and sentence is set aside. It is ordered that appeliant be set at liberty unless he is otherwise lawfuUy held. Order.accordingly M.A.IRIKO JUDGE. 14/9/2016 )UD.G 4J9/.2O16 10 CoU rt : RiqhtofAppeaI Explained. M.ARWRIKO JUDGE 14/91.2916 11