20170216 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF ARUSHA) ATARUSHA I CRIMINAL APPEAL NO. 130 OF 2016 (Originating from Arusha Resident Magistrate's Court Criminal Case No. 1274/2015) i HUSSEIN OMARY MBUA .............................. APPELLANT I VERSUS THE REPUBLIC .................... .i ••••••••••••••••••• RESPONDENT I JUDGMENT ON APPEAL. S.M. MAGHIMBI,J: At the Resident Magistrate's Court of Arusha, the appellant herein, vide Criminal Case No. 1274/2015 was cqnvicted of the offence of incest by male c/s 158(1)(a) of the Penal Code, Cap. 16 R.E 2002. He was sentenced ' to serve the statutory sentence of life imprisonment. Aggrieved by both the conviction and sentence, he lodged ~his appeal raising three grounds of appeal that: 1. That, the trial Court erred in law and in fact to base its conviction on the unreliable and incredible evidence of PW.3. 2. That, the trail Court erred in law' and in fact for failure to analyse and . evaluate the evidence on record consequently unjustifiably convict the appellant. 1 3. That, the trial Court erred in law to convict the appellant after the prosecution side had failed to prove the case against the appellant beyond all reasonable doubt. The appellant prayed that his appeal is allowed by quashing the conviction, setting aside the sentence and letting him at liberty. On the day of the hearing, the appellant was unrepresented while the respondent, the republic was represented by Ms. Alice Mtenga, learned State Attorney. In his submissions on the first ground of appeal, the appellant submitted that the trial magistrate did not properly evaluate the evidence. his argument was that had the evidence of PW3, the victim of the offence been properly analysed, it would have been clear that she was lying. Although the witness alleged that it was not the first time for the appellant to raped her, there is no place in her evidence which shows that she had reported the incident to her mother immediately after she was raped the first time. He argued further that if it was true that he had raped her before, she would not have just kept quite without telling PWl her mother and PW2 who is her sister and they live together. On the second ground of appeal, the appellant submitted that generally speaking, if this girl was actually raped, they would not have kept her at home without taking her to the hospital for examination from 26/08/2015 to 15/09/2015. He argued that there is no any explanation given by the mother to show why the victim was taken to the hospital after such a lapse of time. Further that the fact that she waited all that long to take the victim to the hospital is a clear implication that the victim was not raped. 2 On the third ground of appeal the appellant submitted that the case was planted on him and that is why he was kept at the police station from 03/09/2015 to 22/10/2015 when he was taken to court. He argued that if it is true that he was the one who committed the offence, he would not have been kept at the police all that long without being taken to court an act which is contrary to Section 33 of the Criminal Procedure Act, Cap 20 R.E 2002 which required the police to take him to court within 24 hours of his arrest. The appellant hence prayed that his appeal is allowed and he is set at liberty. In reply, Ms. Mtenga objected the appeal. Her submission on the 1st ground of appeal was that PW3's evidence was sufficient to prove guilt of the appellant. Starting with the procedure that was followed by the trial magistrate, Ms. Mtenga submitted that on page 18 of the proceedings it clearly shows that a voire dire test was conducted and the victim was interviewed. That the trial magistrate satisfied himself that the victim did not know the meaning of oath but she understood the duty to speak the truth. Ms. Mtenga submitted further that in her evidence, the victim testified that it was not the first time that the appellant had raped her and it is not true that she did not tell her mother. That on page 21 the victim explains how the father raped her the first time and she had used kitenge to wipe herself. When her mother came back and asked her why she used kitenge to wipe her mucus she explained to her that it was the father's Siemen that she had wiped. Further that on page 11 of the proceedings, PW1, the victim's mother testified that the reason why they had separated with the 3 appellant was because he raped their daughter and she had reported the matter to police but she did not get enough cooperation. Submitting on the time that was taken for the appellant to be taken to court from the time of his arrest, Ms. Mtenga argued that while the investigation is going on they are not sure as to who has committed the offence. The offence that the appellant was charged with was bail able and he was to be even given police bail. She hence could not say at this point as to why he was brought to court after a long time. She however argued that the length of time he was kept at police has no effect to the substance of the case. There was sufficient evidence to prove the offence of the appellant and his time spent at police should not affect the outcome of the case. Ms. Mtenga submitted further that in his defence at the trial, the appellant did not say anything about existence of a conflict between the victim's mother and him and that the case was not planted on him as there is no such evidence adduced at the trial. She argued that at the trial they had sufficient evidence to prove the guilt of the appellant as the penetration was proved. She concluded that at the trial the prosecution managed to prove the case beyond reasonable doubt and prayed that the appeal is dismissed and the conviction and sentence upheld. In his rejoinder the appellant submitted that if he really raped the victim the first time as alleged by Ms. Mtenga, how did she manage to take all the pain from an adult male's 6 inch penis without pain? Further that if it really happened why would PW1 just punish him by separating with him and not 4 reporting the matter to police. He reiterated his prayer that the appeal is allowed and he is set at liberty. I have gone through the grounds of appeal, the records of appeal and the parties' submissions thereto, having re-analysed the available evidence, I have raised concern on the following matters. My first concern is the evidence of PW1 and that of PW3, the alleged victim of the offence. In her testimony, PWl testified that the appellant herein had raped the PW3 twice. That the first time she found a "kitenge" with mucus and upon interrogation of the PW3, she said to have come from her father who raped her. When she was asked as to why she did not take the PW3 to the police and report the appellant there, her reply was that she tried and there was no cooperation from police. On her part, PW4 who was the doctor who examined the victim said the victim was taken to her on 15/09 while the alleged incident took place on 26/08. My surprise is that, if that incident had occurred the first time where you would expect a mother to be bitter and angry, the second time when the same incident happened and she found out on the same day, why did she then have to wait for 20 days to take the victim to the hospital? The Court of Appeal has in many cases emphasized on the time that was taken between when a victim was raped to the time when the incident was actually reported. In the case of Yusti Lala v. The Republic, Criminal Appeal No. 337 of 2015( unreported) even when the evidence of prosecution established some fear adduced on the victim, the Court of Appeal held that there was sufficient time lapsed to have taken the victim out of fear and report the matter. On the basis of the time taken to report the incident, the Court quashed the conviction of the 5 appellant. The same is the case at hand, it is not easily explainable how could a mother wait for 20 days to take the victim daughter to the hospital considering the culprit is her own father whom she had alleged separated from due to a previous same conduct. As if that was not enough, in her very own testimony, PW1 did not say when the victim was taken to the hospital. On her part, PW3 the victim that she was taken to police and then hospital on the next day that the incident took place. That was also the testimony of PW2. The question remains, when exactly was PW3 taken to hospital as compared to the evidence of the doctor who examined her. Furthermore, in her testimony, PW3 said that when her sister PW2 asked her where she was after finding her on the street PW3 said to have lied to her that there was person who asked permission from school for her ad then left her. PW3 further testified that her sister PW2 knew about her whereabouts that she was seen with her father from a neighbor who had alleged to have seen her with her father. PW1 on her testimony said that the appellant came to the house on the incident day morning and when PW3 saw him her mood changed and she was refusing to go to school. But the same PW1 said that PW3 was at her sister's house PW2. But PW2 did not at all testified to have seen or known that the appellant was at her house that morning unlit later on when she was informed by the PW3. The question here is, where did PW3 wake up from that morning? Was it at her mother's (PW1) or her sister's (PW2). If as per evidence, she was at her sister's, then why did PW1 say that PW3 changed her mood when her father came. All these questions remain unanswered. 6 1 · . . .. f ~ ! . -""'-,: On my part, all those observations above leave a lot to be desired. The conclusion here is that at the trial, the evidence adduced by the prosecution had so many doubts which were sufficiently reasonable to award benefit to the appellant which I hereby proceed to so do. Consequently this appeal is found to be meritious and is hereby allowed by quashing the conviction and setting aside the sentence so passed by the trial court. The appellant is to be released from custody henceforth unless he is otherwise held for other lawful causes. Appeal Allowed Dated at Arusha this 16th day of February, 2017 SGD: S.M MAGHIMBI JUDGE 16/02/2017 I hereby certify this to be a true copy of the original. DEPUTY REGISTRAR HIGH COURT - ARUSHA 7