20170412 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 236 OF 2016 (Originating from The District Court of Bagamoyo at Bagamoyo/ Crim. Case No74/2016) JAFARI SALU @ KIKOTI ........................ APPELLANT VERSUS . RESPONDENT THE REPUBLIC ................................ Date of last Order : 23/3/2017 Date of Judgment : 12/4/2017 JUDGEMENT Kitusi, J. Before the District Court of Bagamoyo at Bagamoyo, Jafari Salum @ Kikoti was charged and later convicted fo'r Rape Contrary to Section 130 (3) (d) of the Penal Code, it being alleged that on 13th January, 2016 at about 13.45 hours at Kiromo, area 1 within Bagamoyo District, he raped Fatia d/o Juma without her consent. Four prosecution witnesses testified to the fact that the appellant was a traditional healer. Fatihiya Juma (PW1) was suffering from a condition she associated with demons. Somehow this fact came to the knowledge of one Juma Abdallah (PW3) who took it upon himself to help PW1. PW3 took PW1 to the appellant for treatment and that PWl's husband known as Said Salum (PW6) was there too. Hamidu Ramadhani (PW4) an associate of the appellant in the provision of traditional healing is also a witness to the fact that PW1 was attended by the appellant. It is only PW1 whose testimony is relevant to the question whether or not the appellant had carnal knowledge of her. PW3, PW4 and PW6 are witnesses to the fact that the appellant took PW1 to a bush for a session of traditional healing. While out there with nobody but the two of them around, the appellant administered medicine into her through her private parts after making her to lie on her back, facing up. This made her lose consciousness, which the appellant took advantage of and ravished her. When PW1 came around she found the appellant still having sex with her. The appellant and PW1 walked back to the farmer's hor17e and he warned her not to disclose to anyone 2 about the sexual intercourse. However PW1 disclosed the fact to her mother (PW2) and her husband (PW6). According to PW2 and PW6, the victim (PW1) returned from the traditional treatment and she related to them what had happened to her while in the hands of the appellant. Both PW2 and PW6 testified that PW1 was in sobs as she told the rape story. According to PW6 and Detective S/sgt Pius (PWS) the appellant confessed to have ravished PW1 and offered an olive branch to have the matter settled. Both PWS and PW6 testified that Shillings 2.5 Million was offered in settlement but PW6 turned the offer down. The appellant made an usually short defence pointing to PWl's washing of her body after the alleged rape as a dent in the prosecution case. He called Abdurrahman Salum (DW2) and Juma Simba (DW3) whose testimonies did not improve the defence case anyhow. DW2 referred to the number of the appellant's children for whatever this fact was worth, and DW2 referred to the number of Police Officers who arrested him, which is also hardly relevant. The trial court found guilty in the appellant because the learned resident Magistrate believed the victim's story as to the 3 fact that she was raped. It dismissed the point raised by the appellant that since PW1 had taken a wash there could not be proof of rape left on her. The learned trial Resident Magistrate's reasoning was that proof of rape need not be by presence of sperms in a woman's body as penetration, however slight, is sufficient proof. This appeal raises eight grounds for challenging the decision of the trial court. In the first and second grounds of appeal, which I consider related, the appellant questions the trial Court's _reliance on the PF3 that was wrongly admitted, and on the absence of a medical personnel's testimony. In the third ground he questions the conviction based on the testimony of the victim who did not even mention the date of the commission of the offence and in the fourth for not leading evidence to show how he was arrested. In the fifth ground he challenges the prosecution for not tendering in exhibit the money (Shs. 2.5 million) which he allegedly offered in settlement. In the sixth and 8th grounds he criticizes the prosecution evidence as insufficient and uncorroborated. However in the seventh ground he has stated that the trial court erred in convicting him on the basis of the weaknesses of his defence. 4 At the hearing Ms. Brenda Nicky learned State Attorney represented the respondent Republic as the appellant appeared in person without representation. The learned State Attorney supported the conviction and sentence but quickly conceded the points raised on grounds 1 and 2 regarding the admissibility of the PF3. The learned State Attorney submitted that there is evidence sufficient to ground a conviction even with the PF3 expunged. She referred to the fact that the appellant a traditional healer had sex with PW1 his patient and that he said nothing to deny this fact. Appellant's defence that PW1 washed before being examined is not denial of the fact that he had sex with her. On his part the appellant asked the court to decide the appeal on the basis of his grounds of appeal and let him walk home a free man. In determining this appeal I find one major fact to be beyond controversy and that is the relationship between the appellant and PW1. All prosecution witnesses have testified to the fact that the appellant was a traditional healer, and the appellant has not denied this fact. All prosecution witnesses have also stated that PW1 was appellant's patient at the time when the 5 alleged rape took place. Section 130 (3) ( d) of the Penal Code, under which the appellant was charged provides: 11 130 (3) whoever: (d) Being a traditional healer takes advantage of his position and commits rape on a girl or a woman who is his client for healing purposes. " It is therefore clear from the quoted provision that the law prohibits sex between a traditional healer and his client under circumstances showing that the former has taken advantage of his position. There is no dispute in this case that PW1 was the client of the appellant. The remaining question is whether the appellant had sex with PWl. This is a question of evidence and as earlier stated, PWl is a lone witness to it. PWl testified that the appellant had sex with her in her unconscious state but even when she gained consciousness, she saw the appellant still having sex with her. 6 • In defence the appellant and his witnesses said nothing of substance. His appeal challenges the PF3 and lack of medical evidence to prove the alleged rape. I agree with both the appellant and the learned State Attorney on the issue of medical evidence. It is my finding that the PF3 was admitted against the procedure and I accept the invitation to expunge it. However as submitted by the learned State Attorney absence of medical evidence does not cause the collapse of the prosecution case. Considering that the best evidence of rape usually comes from the victim and that rape may be proved even when there is no medical evidence, I cannot agree with the State Attorney more. In the case of Daniel Abdul Vs. R. Criminal Appeal No. 42 of 2015, CA at Arusha, (unreported) the Court of Appeal quoted its earlier decision in Selemani Mkumba Vs. Republic Criminal Appeal No. 94 of 1999 to conclude that: 11 ••• despite the absence of medical evidence, the evidence of PWl alone sufficiently proved that PWl was raped " When I apply that principle to the present case I find it quite useful because PWl 's evidence regarding the sexual intercourse 7 •a------,~• .J, " by the appellant is unshaken. Therefore on the basis of her testimony which the learned trial Resident Magistrate rightly believed, the conviction cannot be faulted. As there is evidence that the appellant had sex with PWl who was his client as a traditional healer, the factors constituting rape under Section 130 (3) (d) of the Penal Code have been fulfilled. This appeal lacks merits and it is dismissed. , \;:.., . \:: 8