20170518 TZHC Dar es Salaam 1

IN THE HIGH COURT OF TANZANIA u~ AT DAR ES SALAAM CRIMINAL APPEAL NO. 77 OF 2017 (Originating from The District Court of Temeke at temeke, Cr. Case No. 100 of 2014) LEONARD JOSEPH @ NYANDA..•................ APPELLANT VERSUS REPUBLIC .............................................. RES PON DENT Date of last Order : 11/5/2017 Date of Judgment : 18/5/2017 JUDGMENT Kitusi,_J. Leonard Joseph @ Nyanda the appellant is serving a sentence of thirty (30) years imprisonment having been convicted by the District Court of Temeke for Rape contrary to Section 130 (1) (2) ( a) and 131 of the Penal Code. It was alleged that the 1 - appellant had carnal knowledge of a seventy year old lady known as Asha Said Ligoya, on 10th May, 2014 at Mwongozo Malimbika area within Temeke District. Four witnesses for the prosecution were enough to land the appellant in jail for the alleged rape. Apart from Emmanuel Shija (PW4) who made a conclusion that Asha Said Ligoya had been raped, and concluded so after doing medical examinations on her, it is the story of Asha Said Ligoya (PW1) herself as well as of two people who turned up at the scene, which links the appellant to the alleged rape. PW1 stated that she is a peasant living alone in a single room house. She said she knew the appellant as a person dealing with farming and he used to pass nearby her house. On the fateful date at midnight PW1 heard the door to her room being broken and she, naturally, asked who it was. PW1 opened the door only to see the appellant standing at the doorstep. She stated that she went past him in a run towards the direction of the ten cell leader's residence. However in the course of running, PW1 fell down and the appellant took advantage of this mishap to ravish her. PW1 testified that people came to the scene only to find the appellant still on top of her. 2 The people who went to the scene to give PW1 a hand include Yacobo Isaka PW2, who said he heard somebody screaming; "I am dying Baba Kalenge!" PW2 stated that the Ten cell leader of the area is known officially as Jumanne Samya (PW3) but he is also known as Baba Kalenge. PW2 went to inform PW3 about the alarms, and the two accompanied by PW3's son went to the scene. According to both PW2 and PW3 they found the appellant on top of PWl, naked and having sex with her. All PW1, PW2 and PW3 testified that the appellant attempted to flee but he was apprehended and handed over to the police. PW1 was taken to Hospital for medical examination and according to PW4 it was not easy to establish that she had been raped. The ordinary tests were unsuccessful as there were no bruises nor any sign of friction. Only through what is known as hyperemia was PW4 able to see signs of friction normally caused by either friction or infection. Since there was no infection, PW4 concluded that a blunt object must have penetrated PWl's vagina. In defence the appellant simply denied committing the alleged rape describing the alleged breaking of the door as difficulty and the attempted escape by PWl as untrue. He wondered why didn't any neighbors hear the alleged attack on 3 PWl. He referred to the absence of bruises and sperms in PWl's vagina as testified by PW4 as proof of the fact that there was no rape committed. The District Court found him guiltyand sentenced him to 30 years for rape. He was aggrieved, and has presented six grounds to challenge the trial Court's decision. The first ground of appeal is that the court erred in relying on the evidence of PWl (the complainant) which was taken without oath or affirmation. Secondly the trial court is faulted for admitting the PF3 without giving the appellant the right to object. Thirdly it is stated that the evidence of PW4 was taken against the procedure as he was not listed as a witness during the Preliminary Hearing. In the fourth ground it is stated that the trial court erred in not taking adverse inference on the prosecution's failure to call material witnesses. The fifth ground is that the · court erred in convicting him without there being evidence that his arrest had any connection with the offence. Lastly it is alleged that the prosecution failed to prove their case beyond reasonable doubt. At the hearing of the appeal, the unrepresented appellant had nothing substantial to offer in submissions. For the 4 " respondent republic, Ms Jackline Werema learned State Attorney supported the conviction. Although she conceded to grounds No. 1 regarding PWl's evidence being taken without oath, and ground No. 2 regarding the PF3 being admitted without hearing him in objection, the learned State Attorney maintained that there is evidence to make the appellant's conviction stand. Thus the learned State Attorney prayed that the testimony of PWl be disregarded, and the PF3 be expunged. She however submitted that there is the evidence of PW2 and PW3 that the appellant was found in the very act of having sex with PWl. The learned Attorney went on to support her case with the decision of the Court of Appeal in Furaha Michael Versus Republic, Criminal Appeal No. 326 of 2010 CA (unreported), for the principle that being caught in the act of rape is the best evidence. With respect I agree with the learned State Attorney on the evidence of PWl being taken without oath or affirmation. That is a violation of Section 198 (1) of the Criminal Procedure Act, Cap. 20 and the consequences of that violation have been stated in Court decisions. In the case of Mwami Ngura V. Republic, Criminal Appeal No. 63 of 2014, CA (unreported) quoted in the case of Amos Seleman Versus Republic, Criminal Appeal No. 267 of 2015, CA (unreported), the Court of Appeal held: 5 . 11 ••• And in several cases, this Court has held that if in a criminal case, evidence is given without oath or affirmation, in violation of Section 198 (1) of the CPA, such testimony amounts to no evidence in law... ,✓ Accordingly I accept the invitation by the learned State Attorney to disregard the evidence of PWl. Secondly I respectfully agree with the learned State Attorney on the submission that the PF3 should be expunged. The procedure of admitting that document in evidence denied the appellant to comment on it, and thereby making that part of the trial unfair. I accordingly expunge the PF3. I am aware that the best evidence of rape comes from the victim. In this case, since the evidence of PW1 has been disregarded, and the PF3 has been expunged what is the basis for concluding that rape was committed? I have found no reason to doubt the veracity of PW2 and PW3 and the appellant said nothing suggesting that they had anything against him. I therefore agree with the trial court's finding that PW2 and PW3 caught the appellant on top of PWl who had been screaming for help. I agree that they caught the 6 .. .. two without clothes suggesting that they were having sex. Considering the evidence of screams by PWl, it is my conclusion that whatever was happening, was so happening without the consent of PWl. The question is whether there is proof of penetration so as to conclude that rape was committed. Certainly PW2 and PW3 cannot be witnesses of the fact that there was penetration and they did not allude to that fact. It is my finding therefore that penetration was not proved and thus rape was not proved because under Section 130 (4) (a) of the Penal Code penetration is an important ingredient. I am however satisfied that what the appellant did amounted to attempted rape under Section 132 (1) (a) of the Penal Code. Accordingly I quash the conviction for rape and substitute for it with a conviction for attempted rape under Section 132 (1) (a) of the Penal Code. As the sentence for rape and that for attempted rape is the same, that is 30 years imprisonment, the appeal against the sentence has no merits, and it is disrnissed. The appeal against the conviction is allowed only to the extent that it is substituted 7 .· . •• · ,- ~. .4., ::_:...,'._-:---'· ··~ _-: - · --~ ~ · with a conviction for ,attempted rape. Othetwise . ' . .· _the_. appeal -- is .· -- --- -- - .-· -.--- _..___ __ - 18/5/2017. Coram : - . Kitusl,-·J. Appellant Respondent -· ·: ·.. Ms Rachael Magambo, ·sA · . -· CC: Banza COURT · I.P.l<itusl / 8