20180910 TZHC Mwanza

IN THE HIGH COURT Of TANZANIA IN THE DISTRICT REGISTRY ATMWANZA· HIGH COURT CRIMINAL APPEAL NO~ 368 OF 2017 (Arising from the District Court of Misungwi: Criminal Case No. 107/2016) BERNARD S/ 0 PASCHAL ............................................ APPELLANT VERSUS THE REPUBLIC .................... 1111••············•11••···············• ■ 1 RESPONDENT JUDGMENT BUKUKU, J.: . - Before the District ·court of Misungwf at Misungwi in Criminal Case No. 107/2016 the appellant faced a charge of rape contrary-to section 130 (1) (2) (a) and 131 of the Penal Code Cap 16 R.E. 2002. The particulars of the charge read thus:- - "That Bernard s/o Paschal is charged on JJh day ofAugust, 2016 at about 07. 00 hours at Mbela "CN village within Misungwi District in Mwanza Region did commit sexual intercourse to one Loyce d/o Lucas without her consent'~ When the charge was first read over to the appellant on 15/8/2016, the appellant denied committing the alleged offence. On 16/2/2017, the trial court conducted a Preliminary Hearing under section 192 of the Criminal Procedure Act, Cap 20. When reminded the charge, the appellant again pleaded not guilty.·The facts narrated by the Public Prosecutor showed that the appellant had c~rnal knowledge of Loyce d/o Lucas on 13th August, 2016. The appellant displ:)ted all the alleged facts except his name a~d address and that he knows the Misungwi Secondary School. Then, a full trial followed. ' ' At the appellant's trial the prosecution called seven (7) witnesses in all. The material witnesses were PW1 Loyce Lucas~ the victim, PW2 Amina - Massawe, and PW3, Salma Mwinyish~ikh. These three wit.nesses gave evidence going to show that they saw the appellant and that he had carnal knowledge of PW1 on 13th August, 2016 at about 07.00 hours. · In his defence, the appellant unequivocally denied committing the alleged •offence. He told that court that, on that fateful day, during the morning . hours, he was on his way going to work . at Pasho Mill at Somanda village. While proceeding there, passing nearby Misungwi Secondary School, he i:net two people who asked him about their s_tolen bicycle. While quarelling with the said two people, students at Misungwi' Secondary School heard 2 ) them, they came to the scene, including other people, carrying weapons, arrested and beat him, and was taken to Misungwi Police Station hence charged with the offence of rape. Upon a full trial, the trial court found the a·ppellant guilty as charged, and upon conviction, he was sentenced to serve thirty years imprisonment, hence this appeal. The appellant's- Petition of Appeal lists five (5) grounds of grievances. However, the nub of his· grievances is that, the charge against him· was not proved beyond reasonable doubt. When the appeal was called on for hearing, the appellant fended for himself, while the _respondent Republic was represented by. Ms. Georgina Kinabo, learned State Attorney, who did not support the appeal. Among the reasons advan~ed by Ms. Kinabo for not supporting the ~ppeal is that, the victim's evidence was enough to prove that she was raped, citing the case of Selemani Makumba V.R; [2006] TLR 379. Likewise, according to Ms. Kinabo, the evidence of PW2 and PW3 corroborated that of PW1,· and that, these two. witnesses . went to the scene of crime and saw .. the victim holding her clothes and crying that she was raped. 3 ) According to Ms. Kinabo, there is also the cautioned statement of the appellant (Exhibit PS), where he admitted to have sexual relations with PW1 the victim. That piece of evidence was never objected when it was tendered in court. On the whole, Ms. Kinabo submitted that, the prosecution has proved its case as required by law. Hence prayed the appeal to be dismissed. I shall begin with the ·first ground of appeal as listed in the Petition- of Appeal. In this ground of appeal, the complaint is that, the learned trial . . magistrate erred in law and fact in relying on the evidence of the victim although the essential ingredient of rape, Le. penetration was not supported by the M~dical Report (Exhibit_P4). After scanning ~he prosecution evidence, I have asked myself whether the evidence as provided by the prosecution witnesses proved the offence . . of rape. I have asked myself, what is rape? Under the Penal Code, rape can be committed by a· male person to a female in one of these ·ways:- One, . . having sexual intercourse . with a woman above the age of. eighteen years without her con·sent. Two, having sexual intercourse with a girl of the age of eighteen years and below with or without her consen~ (statutory rape). In either case, one· essential ingredient of the offence must be · 4 proved beyond reasonable doubt. This is the element of penetration i.e. penetration, even to the slightest degree, of the penis into the vagina, has to be proved. Having canvassed the entire prosecution evidence, I have so far failed to glean therefrom an iota of evidence going to prove penetration. Equally, it cannot be stated with any degree of certitude that the opinion evidence of PWS, Sumbuo Raymond Kulaya~ the doctor who examined PW1, proved the essential element of penetration. I am therefore left with the evidence . . of PW1, Loyce Lucas, the alleged prosecutrix. Did her evidence prove the offence of rape beyond reasonable doubt? In cases- of this nature, it was stated with sufficient lucidity by our Court of Appeal in the ca?e Selemani Makuinba V. Republic; (Supra) that:- "True evidence of rape has to come from the victim/ if an adult, that there was penetration and no consent, and in case of another woman where consent is irrelevant that there was penetration/~ 5 This holding has been consistently followed by the courts in many of its subsequent decisions. The essence of the offence of rape is penetration of the male organ into the vagina, as per section 130(4) of the Penal Code (supra). Settled is the law that, to prove the offence of rape, it is not enough for the witness to make bare assertions that the prosecutrix was raped. Evidence ought to · be given to prove penetration, even to the· slightest degree of the accused's penis into the prosecutrix vagina. (See: Godi Kasenegala V.R; Criminal Appeal No. 10 of 2008 (unreported) and EX B.9690 SSGT. Daniel Mshambala V.R; Criminal Appeal No. 183 of 2004 (unreported :... CAT). In thfs particular case, to prove that she was raped, PW1 told the trial court:- "..................... I found a man caught my neck (sic) and failed to alarm for help (sic). That man -fold ,ne to listen -to him. He started directed me (sic) where to go while caught my neck (sick) forced moved up to enterforest of thorn and seat on my 6· u1nbilfcal (sic). He forced moved my write short (sic) I wore that date with my pant He then opened his zip and removed his penis and widen my thighs forcely (sic) and entered his penis into my vagina. I tried to help myself in vein because ·., . ,, he was s,app1ng me ..... . · PWS, Dr. Sumbuo Raymond Kulaya was the medical doctor who examined PW1 on the. same day of the incident. This is what he told the court:- "On 13/08/2016 morning .hour~ I was on duty. One patient called Loyce Lucas student from Misungwi Secondary School did brought (sic) by her follows and their matron. Victim complained to be raped. I saw her clothes teared and has bruises on her arms back head swelled. Her vagina had no bruises but some fluid came from vagina and has no pant ............ ,,~ (Emphasis ~ine).. 7 When cross examined, this witness told the court that, he did not discover that PW1, was raped since the hospital had no facilities to examine the victim at that time. This prosecution witness tendered in court the PF3 which he had duly filled after examining the victim (Exhibit P4). Having carefully examined the PF3·, PW S's comments in Exhibit P4 is that, she saw PWl ·was naked, but there was no tear but found fluid discharge around the vulva. He also remarked that, there were bruises on the upper limb of the victim who looked anxious, there was swelling on the scalp and that the vulva looked normal. · In other words, PWS did not testify as to have observed penetration, when examining PW1. It is unfortunate that, PWS did not describe to the court the type or nature of the fluid he saw around PW1's vulva. This in itself raises doubts. It is for these reasons I hold that, penetration in this case was not proved, as required by !aw. Next, the appellant has also claimed that, there was contradiction and inconsistencies amongst. the prosecution witnesses, which he claims goes to . the root of the case, mentioning the evidence of PW3 and PW7. In her 8 - testimony PW3 told the court that, when she followed the shouts of ·~Joyce is here/ Aloyceis here// she saw PW1 carrying her shorts and pant while crying that she was raped. In another angle PW7 told the court that, having gone to the scene of crime, they found some clothes which they collected. I think the problem here is, when testifying PW1 tendered ·in court a black pant, white shorts and a piece of khanga which she alleged she wore on that day. These exhibits were admitted in court as Exhibit Pl, P2 and P3 respectively. On the other hand, PW7 told the court that, at the crime scene they found some clothes which they collected. If at all PW1 took the clothes she wore on that day and tendered them in court, whose clothes were then- - -------== lying at the.crime scene? If PW7 was able to tender the sketch map of the crime scene, what stopped him from tendering the said clothes retrieved from the crime scene? Again here, there is doubt. All in all; having carefully considered the prosecution's case, I find that, there are doubts created which doubts ought to have been resolved in favour of the appellant herein. For example, PW1 the victim, never identified the appellant nor named him. All what she told the court was that, on that day, the man wore a black piece of material called ''mgolole wa kimasar~ The proceedings are silent as to when and to whom., PW1 described the 9 ,. · appellant hence necessitating his arrest. There is also the confusing testimony of PW2. This is what she told the court:- "...... .In my way from dormitory to outside to clean myself (sic) suddenly I saw this accused who wore Jeans and black T-shirt and red mgololeH crossing from our 11 dormitory to form five (VJ dormitory. Suddenly a form five {l.1 girl came to ·our dormitory and said their fellow Loyce is nowhere to be seen............ suddenly we saw accused coming from the forest running....... '~ One wonders, was the appellant walking across the dormitories ·or did he come from the forest running? No prosecution witness ever testified to have seen PW1 at the crime scene. Having held that the so called evidence of PW1 Loyce is wanting, I don't think I have any other sufficient evidence to sustain the conviction of the appellant. Inspite bf Ms. Georgina's pressing that there is sucli evidence, I regret to. say that, this being a criminal case, I have none on record. The . evidence of the other witnesses does not irresistibly lead to a conclusion that PW2- Loyce was raped, and even if she was, there is doubt that the culprit . . 10 I • was the appellant. In sho1t, the guilty of the appellant was not proved beyond reasonable doubt. Since the prosecution has failed to prove its case. beyond reasonable . . doubt, I hereby quash and set aside the appellant's conviction. In fine, I allow the appeal in its entirety. The appellant is to be released from prison forthwith unfess he is otherwise lawfully held. Order accordingly. JUDGE · Delivered at Mwanza This 10th September, 2018. 11