20180316 TZHC Dodoma

'I- IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) ATDODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 2 OF 2018 (Oriiinal Criminal Case No. 155 of 2017 of the District Court of Mpwapwa at Mpwapwa) J(JLIUS I(ASUGA .................................. •........ .... .. . .. . ... APPELLANT VERSUS THE REPUBLIC ........... ..............U...............................RESPONDENT JUDGMENT 08 & 16/3/ 2018 KWARIKO,J. The Appellant herein stood charged before the District Court of Mpwapwa with two offences of Robbery contrary to section 286 and Rape contrary to section 130 (2) (b) and 131 both of the Penal Code [CAP 16 R.E. 2002]. It was alleged by the prosecution that on 6th day of June, 2017 at Godegode Village within Mpwapwa District in Dodoma Region with threat and violence the appellant stole cash Tshs. 500,000/= and Itel cell phone valued at Tshs. 30,000/= all total valued at Tshs. 530,000/= 1 properly of ESTERY D/O MANYELEZI and also at the same time he had carnal knowledge of ESTERY MANYELEZI without her consent. The appellant denied the charge where the prosecution brought two witnesses to prove the same. The evidence by the prosecution revealed that on the material date the complainant ESTERY D/O MANYELEZI was travelling with her son HARDSON TUMBIKA, PW2 from Manghanghu to Makambini Gengesita where along the way, PW2 went aside to attend a call of nature. Thereby, while PW1 continued with the journey the appellant came holding a bush knife and used its sides to assault PW1. He demanded money and PW1 gave him Tshs. 500,000/= and her phone. The appellant removed the line and gave it to PW1 before he took her to the bush and ordered her to lie down. That, he raped her very good and fast and force without any protection. However, the appellant ran away upon seeing PW2 coming. Further, when PW1 reached home did inform her elder sons of the incident who took to look for the appellant and apprehended him and took him to village office and police. PW1 identified the appellant at the village office but he denied the allegations. PW1 was sent to hospital for examination although she told them that she had already washed. PW1 tendered her PF3 which was admitted in court as exhibit PE1. In his defence the appellant said he spent the day on 6/6/2017 working at his onion farm before he was arrested on 7/6/2017 for these 2 allegations which he denied. DW2 RICHARD BENSON RUNGWA, supported the appellant in that he helped him to work on his farm the whole of 6/6/2017 and wondered when he heard that the appellant was implicated with such offences. At the end of the trial the appellant was found guilty, convicted and sentenced to fifteen (15) and thirty (30) years imprisonment for the first and second counts respectively which sentences were ordered to run concurrently. The appellant was not satisfied by the trial court's decision hence filed this appeal upon seven grounds of appeal raising four important grounds of complaints as follows; That, family members evidence ought to be corroborated by independent witnesses. That, the PF3 was admitted in court contrary to section 240 (3) of the Criminal Procedure Act [CAP 20 R.E. 2002]. That, the evidence of visual identification was not sufficient. 4. That, the trial court did not consider defence evidence. 3 At the hearing of the appeal the appellant only adopted his grounds of appeal and left to the State Attorney to respond. Ms. Magili learned State Attorney appeared in this appeal on behalf of the respondent Republic where she supported the appeal. Her submission to that effect will be referred in the course of this judgment. Now, the issue to decide is whether the appeal has merit. The grounds of appeal will be considered seriatim as follows; In the first ground of appeal the court is in agreement with both parties that the evidence by PW1 and PW2 being family members ought to have been corroborated by independent witnesses. This is so because even though PW1 said the appellant admitted the allegations before the vUlage office but none of the office bearers came to testify. Not even police officers testified to explain how the appellant was brought to their attention and what he said upon being taken into custody. Although the law does not forbid family members to testify on the matters they are versed with but in this case there ought to be independent witnesses to support if at all this incident happened the way it was presented. I get inspiration in the foregoing stance in the case of AYUBU HASSAN V R, Criminal Appeal No. 79 of 2009,. Court of Appeal of Tanzania at Tanga, (unreported). The first ground of appeal has merit. 4 As regards the second ground of appeal, although the PF3 was tendered in evidence contrary to what Ms. Magili said that there was none, but the same was received contrary to law. The PF3 was tendered by the complainant herself and the appellant was not informed of his right to have the medical officer who prepared it to come to testify as per section 240 (3) of the Criminal Procedure Act [CAP 20 R.E. 2002] which provides thus; When a report referred to in this section is received in evidence the court may if it thinks fit, and shall, if so requested by the accused or his advocate, summon and examine or make available for cross- examination the person who made the report; and the court shall inform the accused of his ri'ht to require the person who made the report to be summoned in accordance with the provisions of this subsection. Therefore, if the law was not followed it means that the PF3 (Exhibit PE1) was illegally received and acted upon; it was iflegal evidence and it is hereby expunged from court record. The second gr und 1 of appeal passes. The appellant's complaint in the third ground of appeal is that the evidence of visual identification was not sufficient. Again, the court is in all fours with both parties as regards the identification of PW1's assailant. This is so because although the incident is alleged to have occurred in the day light but PW1 did not say she knew the appellant before for her to 5 have recognized him and did not describe his appearance in detail to be able to enable those who arrested him to do that without mistake. She did not say how he was dressed and what his physical appearance was and what time the incident took more so as she said the same was very fast. Whereas, PW2 said he knew the appellant before but did not say how he knew him and what made him tally with the one PW1 had referred. PW2 only said when he came from call of nature he saw a person's back and ran away hence he had no opportunity to observe him. Therefore, the evidence of identification did not meet some important criterion enunciated in law (see also WAZIRI AMANI V R [1980] T.L.R 250). The third ground of appeal has merit. Lastly, this court does not agree with the appellant that his defence evidence was not considered by the trial court since the same was given consideration at page five and six of the typed judgment and was found without merit. Apart from the foregoing this court finds that the charge against the appellant did not disclose the offence of robbery as it did not state threats and violence that were directed to PW1 when money and phone were allegedly stolen from her. Whereas in evidence PW1 said her assailant had bush knife and used it to assault her. Hence, in any case the particulars 6 regarding the offence of robbery were at variance with the evidence on record which vitiated the charge. And PW1 did not say what her assailant did not prove that she was raped. She only said was raped without explaining what acts the assailant did to her. In the case of EX-B 9690 SSGT DANIEL MSHAMBALA V R, Criminal Appeal No. 183 of 2004 Court of Appeal of Tanzania at Mwanza (unreported) it was said thus; "PW1 ought to have gone further to explain whether or not the appellant inserted his penis into her vagina, whether or not the penetration was shiht etc. In general PW1 ought to have been more forthright and thorough in her evidence on the alleged rape. It was not enough to make the bare assertion that she was raped without more. She ought to have been more forthcoming in her evidence in order to enable the court to make a meaningful finding on whether or not rape was committed" The foregoing holding fits squarely in the present case where PW1 only barely alleged that she was raped without more. Hence, in the 7 absence of any supportive evidence the prosecution did not prove that the - complainant, PW1 was at all sexually assaulted. Conclusively, in this case it was neither proved that PW1 was robbed nor raped and that the appellant was proved to be the assailant. Hence, the prosecution case was not proved beyond reasonable doubt against the appellant; the appeal has merit and it is hereby allowed, conviction quashed and sentence set aside. It is thus ordered that the appellant be set at liberty unless his continued incarceration is related to other lawful cause. It is ordered accordingly. A M.A.:44 ' JUDGE : 16/3/2018 161h day of March, 2018. DATED at DODOMA this 1.• \\ JUDGE 16/3/2018 8 Date: 16/3/2018. Coram: Hon. M.A. Kwariko, J. Appellant: Present For Respondent: Ms. Kezilahabi State Attorney C/C: R. Nyembe Ms. Kezilahabi State Attorney: The case is for judgment. Appellant: I am ready. Court: Judgment delivered in court today in the presence of the Appellant and Ms. Kezilahabi learned State Attorney for the Respondent Republic. Mr. Nyembe Court Clerk present. M.A. ,x \ JUDGE ..\ \ 16/3/ 2018