20180220 TZCA Mbeya

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: LUANDA, J.A., MMILLA, J.A., And NDIKA. J.A/1 CRIMINAL APPEAL NO. 613 OF 2015 POSOLO WILSON @ MWALYEGO.................................................... APPELLANT VERSUS THE REPUBLIC........................ .................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Mambi, 3.) dated the 3rd day of December, 2015 in Criminal Appeal No. 53 of 2015 JUDGMENT OF THE COURT 13th & 20th February 2018 NDIKA, J.A.i This appeal arises from the judgment of the High Court of Tanzania sitting at Mbeya (Mambi, 1) dismissing the appellant's challenge of conviction and sentence against him. Following a full trial before the District Court of Chunya, the appellant was convicted of rape contrary to section 130 (1) and (2) (e) of the Penal Code, [Cap. 16 R.E. 2002], He was sentenced to life imprisonment along with eight strokes of the whip. The prosecution case was briefly as follows: on returning home on 21st May 2014 at 21.00 hours, PW1 Yusta d/o Joseph found her four-year-old daughter, PW2 i Odama d/o Anyilise, missing. Moments later she rushed to a nearby bush from which cries of a child came from whereupon she found a male person she identified as the appellant ravishing PW2. While PW2, at the time, had her skirt removed and underwear torn apart, the appellant was half-naked with his black jeans lowered a little. Odama gave unsworn evidence asserting that the appellant raped her after he seized and carried her from her home to the bush where PW1 found them. Both PW1 and PW2 said that the scene of the crime was mostly dark. PW1 indicated that she had seen the appellant before the fateful evening. PW1 raised an alarm while she confronted the appellant at the scene of the crime. The appellant fled the scene of the crime as a number of villagers who included a certain Flora were gathering at the scene. PW1 and Flora immediately examined PW2's private parts and established that her vagina was ruptured and blood was oozing from thereat. PW5 Moris s/o Mdoe, Assistant Medical Officer, who examined PW2 on the following day, tendered a medical examination report (PF.3 - Exhibit P.!) to the effect that the victim had bruises on labia majora, left and right, and also on vaginal wall. She had a perforated hymen and a blood discharge in her vagina. All these were allegedly caused by forced penetration of a blunt object to the vagina. While PW1 reported the incident that in fateful evening, the appellant was swiftly apprehended on the following morning around 5.00 hours by a group of villagers led by the Hamlet Chairman, Kamanda s/o Mwasile (PW3). On being interrogated by PW3 at the Hamlet Office in the presence of PW1, PW2 and a certain local vigilante leader named Lamson s/o Wenera, the appellant confessed to raping PW2 and offered to her mother (PW1) an expected harvest of maize and groundnuts from his farm as compensation so as to compromise the dispute. The record put what he said in Swahili thus: "Samahani Mwenyekiti nimezini na mtoto mdogo na nina mahindi eka mbili na nusu na karanga nimlipe Mama mwenye mtoto." As it turned out, PW1 declined the offered compensation and the appellant was eventually taken by the said Lamson s/o Wenera to the office of the Village Executive Officer. According to PW4 Linus s/o Mkumbe, the Village Executive Officer, the appellant confessed to him too that he raped PW1. He blamed a certain witch doctor based in Iringa on whose instruction he raped the victim as a spell to make a fortune. The appellant was finally conveyed to Chunya Police Station. The appellant, on his part, gave a flat-out denial of the charge against him. Apart from denying being at the scene of the crime in the fateful evening, he said the accusation against him was fabricated by PW1 whose request for temporary harvesting- job he once turned down. It is significant, however, that he acknowledged to have offered to pay for the treatment of the victirrL(PW2) when he was at PW3's office even though he protested his innocence. In their concurrent findings, the lower courts were satisfied that PW2 was indeed raped. That finding was based upon the evidence of PW2 herself as well as the medical evidence given by PW5. The courts also found, based on the evidence of PW1 and PW2, that the appellant was identified at the scene of the crime as the ravisher. Moreover, the courts greatly relied upon the oral statements the appellants allegedly made at the Hamlet Office and the Village Office. In effect, the courts held the statements as valid confessions. Aggrieved, the appellant has lodged a memorandum of appeal containing nine grounds of complaint. The said grounds can be condensed into the following points of grievance: first, that the evidence of PW1 and PW2 was wrongly relied upon as it did not sufficiently establish positive identification of the rapist; secondly, that there was no valid admission or confession of guilt by the appellant; thirdly, PF.3 and PW5's evidence were not reliable; and fourthly, that the defence evidence was ignored. At the hearing, the appellant appeared in person, unrepresented while Mr. Baraka Mgaya, learned State Attorney, represented the respondent Republic. Th4 appellant adopted his grounds of appeal but deferred his elaboration on them to a later stage, if need be, after the submissions of the learned State Attorney. - On his part, Mr. Mgaya supported the appeal on two grounds from which he formulated two issues: first, whether the appellant was positively identified'at the scene of the crime as the rapist; and secondly, whether the appellant's confessional statement to PW3 was voluntary. On the first issue, the learned State Attorney submitted that both PW1 and PW2 adduced that the sexual attack occurred in darkness in a bush at 21.00 hours. Relying on Waziri Amani v. Republic, [1980] TLR 250, 4 the learned State Attorney was of the view that conditions at the scene of the crime were not conducive for a positive identification. As regards the confessional statement allegedly made by the appellant to PW3, Mr. Mgaya submitted that the said statement was not voluntary. He said that the said statement was involuntary as it was made in the presence of a militiaman (i.e., a local vigilante leader), certain village functionaries and the complainant's family. He impressed upon us that if the said confessional statement was voluntary, the appellant would have maintained it at the police station where he was taken subsequently. The learned State Attorney was, therefore, of the view that the trial court erroneously acted on the said involuntary statement to convict the appellant. Replying to questions posed by the Court on the reliability of another oral confessional statement allegedly made by the appellant to PW4, Mr. Mgaya argued that the said statement, too, was not reliable because the appellant all along appeared to have not been a free agent. He referred to page 31 of the record where, in his defence evidence, the appellant alleged to have been beaten up while at the hands of the militiamen at the village. The appellant's response was very brief. He claimed that he confessed to the offence after being beaten up and that he only agreed to meeting medical costs for PW2 so as to spare his life. He insisted that he was not identified at the scene of the crime. 5 Having heard the parties, we begin with the evidence of identification. It was claimed by both the appellant and Mr. Mgaya that the appellant was not correctly identified at the scene of the crime. It should be noted that this complaint was initially raised before the first appellate, which held, as shown at page 63 of the record, as follows: "... the issue is whether the appellant was identified on the day in question. My answer to this question will be in the affirmative basing on the following aspects o f the evidence. As rightly submitted by the learned State Attorney that since the appellant was found by PW1 raping the victim (Pi/I/2) in the bush, and the fact that PW1 knew the appellant before, creates no doubt that PW1 recognized the appellant." With respect, we think that the learned appellate Judge was wrong in the finding above. Although he indicated that his finding on identification was based on various "aspects of evidence," he only considered the fact that PW1 knew the appellant and nothing else. We think if he had considered the evidence on the record in the light of the principles enunciated in Waziri Amani (supra) he would have come to a different conclusion. Although it is on the record that PW1 came to close to the assailant at the scene of the crime and that she was able to describe his attire at the trial, both PW1 and PW2 stated that the incident occurred in darkness at night and that there was no moonlight. PW1 insisted in re-examination that despite darkness she recognized the assailant when she touched him as she was confronting him. In the ordinary circumstances, we would have found that in view of the absence of light at the scene, the possibility of a mistaken identity could not be ruled out. Even so, as we shall demonstrate herein below, we think that there is other cogent proof that the appellant was, indeed, the culprit. The next issue for determination is whether the appellant's oral confessional statements were valid and reliable. Before us, both parties contended that the statements were not voluntary. It is settled that an oral confession made by a suspect, before or in the presence of reliable witnesses, be they civilian or not, may be sufficient by itself to found conviction against the suspect (see for example the Director of Public Prosecutions v. Nuru Mohamed Gulamrasul, [1988] TLR 82). In Mohamed Manguku v. Republic, Criminal Appeal No. 194 of 2004, the Court insisted that such an oral confession would be valid as long as the suspect was a free agent when he said the words imputed to him. According to the evidence on the record, the appellant confessed to the offence on two occasions. He, at first, confessed to PW3 at the Hamlet Office in the presence of PW1, PW2 and a certain local vigilante leader named Lamson s/o Wenera. At the same time, he offered to the victim's mother (PW1) an expected harvest of maize and groundnuts from his farm as compensation so as to compromise the dispute. On the second occasion, he owned up his guilt before PW4 Linus s/o Mkumbe, the Village Executive Officer, in the presence of only one person (the local vigilante leader). In 7 the course of doing so, he blamed a certain witch doctor based in Iringa who had allegedly instructed him to rape a child as a spell to get rich. Looking at the evidence of PW1 and PW3, it is evident that the appellant did not cross-examine these witnesses on his claim that he was coerced into confessing. If the appellant thought that statement he made to PW3 was not voluntary and that it was extracted through beatings he ought to have cross-examined PW1 and PW3 on the point. It is trite that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness's evidence: see this Court's decisions in Cyprian Athanas Kibogoya v. Republic, Criminal Appeal No. 88 of 1992; Dr. Moses Norbert Achiula v. Republic, Criminal Appeal No. 63 of 2012; and Rashid Roman Nyerere v. Republic, Criminal Appeal No. 105 of 2014 (all unreported). As regards the second statement, PW4 maintained in cross-examination that it was made to him freely and that nobody subjected the appellant to any beatings at his office. This evidence was found credible by the two lower courts. We have no reason to differ with the lower courts as they were entitled to decide that issue on the basis of credibility. In particular, we find PW4 credible especially in view of his testimony that included the tale that the appellant cast the blame to a witch doctor's instruction. We think that the appellant volunteered to PW4 personal information beyond the ordinary and that it was unlikely for PW4 to have invented that story. 8 We note that the appellant only seriously repudiated the two statements during his defence evidence by alleging that certain militiamen whose names he did not disclose beat him up. In our considered view, this repudiation was an afterthought and that it does not deserve much consideration. Moreover, we are fortified in our view that earlier in his defence evidence, the appellant confirmed to the trial court that he was ready and willing to meet the treatment costs for PW2 even though he had not raped the girl as he adduced thus: "... if possible I can pay and facilitate to treat that girl though I did not commit that act (Nitajitahidi chinijuu tuyamalize na huyo mtoto nitamuuuguza japo sijafanya)." The above statement may not be a confession in itself but it lends credence to the prosecution's tale, given by PW1, PW3 and PW4, that the appellant, as a free agent, acknowledged his sexual assault on PW2 and was prepared to meet all treatment costs for her so as to compromise the patter. We think the appellant's promise to pick the treatment bill was not just an act of a good Samaritan. It was borne out of guilty consciousness. On the foregoing analysis, we find the two oral statements imputed to the appellant were, for all intents and purposes, valid confessions in terms of section 3 of the Evidence Act, [Cap. 6 R.E. 2002] and that they were sufficient by themselves to have founded the appellant's conviction of rape. 9 Next, we deal, albeit briefly, with two grounds that were not specifically canvassed by the parties in their submissions: they are the complaint that the medical evidence on record (PW5's testimony and PF.3) was not reliable; and that the defence evidence was ignored. Starting with the medical evidence, which was constituted by the Assistant Medical Officer's testimony and PF.3, we note that the appellant did not raise any complaint against that evidence before the first appellate court. His present attack of that evidence is clearly an afterthought. As a matter of general principle, an appellate court cannot allow matters not taken or pleaded and decided in the court or courts below be raised on appeal: see, for instance, Kennedy Onyango and Others v. Republic, Criminal Appeal No. 48 of 2006 (unreported). Notwithstanding the foregoing, we looked at the testimony of PW5 and the PF.3 and we were satisfied that the said evidence was properly admitted at the trial and that it was reliable. Similarly, there is no merit in the complaint that the appellant's defence evidence was not considered by the trial court. We find it evident that the trial court considered in its judgment (pages 41 - 44) various aspects of the appellant's defence and decided against him. These aspects included an alibi, an attack on the credibility of PW1 and PW3, and an allegation that he was tortured and coerced into confessing to the commission of the offence. The High Court affirmed the trial court's findings on these aspects. We see no reason to interfere with the findings of the lower courts except for the finding on identification, as we have explained earlier. 10 All the above considered, we find no basis to fault the High Court's decision to 4 sustain the conviction and sentence against the appellant by the trial court. We, therefore, dismiss this appeal in its entirety. DATED at MBEYA this 20th day of February 2018 B.M. LUANDA JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL G.A.M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. P.W. Bampikya SENIOR DEPUTY REGISTRAR COURT OF APPEAL li