20190220 TZCA Mtwara

IN THE COURT OF APPEAL OF TANZANIA ATMTWARA (CORAM: MWARIJA, J.A., MZIRAY, J.A. And WAMBALI, J.A.) CRIMINAL APPEAL NO. 382 OF 2016 IMANI CHARLES CHIMANGO.................................................... APPELLANT VERSUS THE REPUBLIC ..................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mtwara) (Mzuna, J.) dated the 2 nd day of September, 2016 in Criminal Appeal No. 56 of 2014 JUDGMENT OF THE COURT 15th & 21 st February, 2019 MZIRAY, J.A.: The appellant, Imani Charles Chimango @ Ima together with Sharafi Hamis Twalibu@ Chinga (the second accused) were charged with and convicted in Mtwara District Court of the offence of Gang Rape contrary to sections 130(2) (e) and 131A (1) of the Penal Code, Cap. 16 R.E. 2002. They were alleged to have committed the offence against E.J (name withheld), a girl of 14 years old on 30th day of October, 2013 and 1st November, 2013 respectively. They were sentenced to life imprisonment. 1 The first appellate court upheld the conviction passed by the trial court, however, it realized that the second accused was 18 years old at the time he committed the offence and having served part of the sentence, released him and upheld the sentence against the appellant. The evidence in brief upon which the conviction of the appellant was _grounded was as follows. It was alleged at the trial court that on 30/10/2013 PW1, the victim was sent by her mother to Mtwara in order to stay there with her aunt while waiting for standard seven National Examination results. She was handed over to PW3, the bus conductor, who was directed to drop her at a place called "LIVE" Mtwara where she was to be picked by her aunt, Marisela. After arriving at Mtwara PW1 was dropped at the bus stand instead of this place called "LIVE". She waited for her host in vain obviously because that was not the agreed meeting place. While there, the appellant appeared pretending to be a good samaritan. He took her to his car and asked her to wait for him for a moment on which she agreed. Later on, he came in the company of the second accused and told her that ''mwenyeji wako kamtuma huyu hapa aje akuchukue'; which can be translated thus, "Your host has sent this person to receive you." 2 The two took her up to a house where the second accused was renting a room. Having arriving there, they let the victim sleep on the bed and they slept on the floor. According to the prosecution evidence, at around 23.00 hrs, the second accused followed her in the bed and demanded to have sexual intercourse with her. The victim protested the proposition. The second accused then threatened her with a knife and at the same time cautioned her from raising any alarm. He then undressed her by force. He took his male organ and inserted it into her vagina. While the two were in the act, the appellant left, leaving the door locked from outside. On the next day, both the appellant and second accused took the victim to a place known as " LIVE" so that she could meet Marisela, her host. As luck had it, on arrival, she met her. It was at that moment where PW1 narrated the ordeal to her. The matter was eventually reported to Police Station whereupon the victim was issued with a PF3 and was taken to hospital for medical examination. The appellant together with second accused were arrested and prosecuted in connection with the offence. In their respective defences at the trial court, both denied involvement in the commission of the offence. On the other hand, the trial magistrate was satisfied that on the evidence adduced, the case for the 3 prosecution was proved beyond all reasonable doubt. Upon conviction, they were sentenced to life imprisonment. On appeal, as already mentioned earlier, the High Court having realized that the second accused was 18 years old at the time he committed the offence and having served part of the sentence, released him and upheld the sentence of the appellant. Still prosteting his innocence he came to this Court by way of an appeal. The memorandum of appeal filed by the appellant raises nine grounds of complaint, namely: 1. That, both the trial court and first appellate court erred in law in convicting and sentencing the appellant on gang rape while the essential ingredients of gang rape were not sufficiently established and proved beyond reasonable doubt. 2. That, the first appellate court erred in law by issuing a judgment in contravention of law. 3. That the first appellate court erred in law by not taking into consideration that the trial court failed to properly analyze the evidence on record as a result reached at the wrong decision. 4. That, the first appellate court erred in law by upholding the decision of the trial court without properly 4 ascertaining its competence as to whether it was a district court or resident magistrate's court. 5. Thal the first appellate court erred in law by raising issue instead of determining the raised grounds of appeal. 6. Thal the first appellate court erred in law by upholding the conviction and sentence thereto of the trial court without critically analyze the evidence of prosecution side and ignoring the evidence of the defence side. 7. Thal the first appellate court erred in law by its decision in upholding the conviction and sentence thereto basing on contradictory evidence. 8. Thal the first appellate court erred in law by upholding the conviction and sentence thereto basing on evidence of a victim believing that she truly testified without assigning the grounds of such belief. 9. Thal the first appellate court erred in law by ignoring the necessity of identification parade. When the appeal came up for hearing, Mr Ally Mkali, learned advocate represented the appellant. The respondent/Republic was represented by Mr Wilbroad Ndunguru, learned State Attorney. In his submission the learned advocate for the appellant chose to argue the first, third and nineth grounds of the appellant's memorandum of appeal. He abandoned the rest. 5 Making his submission in support of the first and third grounds of appeal jointly, the learned advocate submitted that the case against the appellant was not proved beyond reasonable doubt. He said that in order to prove the offence of gang rape, there must be penetration by one or all the perpetrators. He submitted that the offence of rape was not proved in this case as PWS, the doctor who examined the victim did not find bruises in the private parts of the victim, hence it cannot be said with certainity that there was penetration. In arguing the nineth ground, the learned counsel submitted that the victim did not know the appellant prior to the incident hence, it was important in the circumtance of the case to conduct identification parade to identify the appellant. On his part, Mr Ndunguru, learned State Attorney did not support the appeal. He contended that the evidence of PW1 was clear that it was the second accused in the trial court who physically raped her and that the appellant planned it and aided in the perpertration of the offence as he cheated the victim, took her in the house of the second accused and when the raping process was in progress, he left the room, leaving the door locked from outside. 6 He also submitted that the evidence of PWS Dr. Salumu Mleche was a mere expert opinion which was not binding to the Court. He stressed that the law is settled that in rape cases, the best evidence comes from the victim. He insisted that since the two courts below found that PWl was a credible witness, her evidence was sufficient to anchor a conviction. He urged the Court to uphold the concurrent findings by the two courts below and dismiss the appeal. In this appeal, the main issue to be determined is whether the charge of gang rape was proved or not. In answer to the posed question we follow the legal position expounded in Seleman Maumba v Republic, Criminal Appeal No. 94 of 1999 (unreported) which stated that: - "True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in the case of any other women where consent is irrelevant that there was penetration. " In the present case we have the testimony of the complainant in which she described graphically how the appellant received her. She explained also how she was cheated by the appellant at the bus stand when she was told "mwenyeji wako kamtuma huyu hapa aje akuchukue'~ 7 She narrated eloquently how she was taken to the second accused's house and how she was undressed by the second accused under intimidation and forced to sex and that while that act was in progress, the appellant locked the door from outside. Such graphic details cannot by any stretch of imagination leave any doubt that the appellant participated in aiding the second accused to fulfil his unholy mission. Section 131A (1), (2) and (3) of the Penal Code, as amended by section 8 of the Written Laws (Miscellaneus Amendment Act No. 2 of 2007) under which the appellant was convicted states: "(1) Where the offence of rape is committed by one or more persons in a group of persons, each person in the group committing or abetting the commission of the offence is deemed to have committed gang rape. (2) Subject to the provisons of subsection (3), every person who is convicted of gang rape shall be sentenced to imprisonment for life, regardless of the actual role he played in the rape. (3) Where the commission or abetting the commission of a gang rape involves a person of or under the age of eighteen years the court, shall in liue of sentence of imprisonment, impose a sentence of corporal punishment based on the actual role played in the rape~ '' 8 From the above provisions, there is no doubt at all that the offence of "gang rape" is an aggravated specie of the offence of rape. The phrase "Where the offence of rape is committed" appearing at the very beginning of sub-section (1) of section 131A pre-suppose that in gang rape, the prosecution must also prove that offence of rape in any of its various descriptions under section 130 has been committed. Unlike the offence of rape under section 130, the phrase: "is committed by one or more persons in a group of persons, each person in the group committing or abetting the commission of the offence' appearing in sub-section (1) of section 131A aggravates the committed offence of rape to that of gang rape like what pertains in the offence of rape under section 130 where the prosecution must establish both lack of consent and penetration; lack of consent and penetration must similarly be proved in gang rape under section 131A. In gang rape, evidence must in addition prove the role of another person or other persons abetting or assisting in the commission of the rape. Again, the prosecution need not prove that each member of the group achieved any penetration for the offence to be committed. Penetration by one member of the group, facilitated by another or others, will be sufficient to ground a conviction. 9 In this case, after an objective evaluation of the evidence carried out by the trial court, we are of the settled view that since the appellant received the victim pretending to be a good samaritan and cheated her that the second accused was the one who was instructed to pick her, coupled with the fact that while raping excercise was in progress the appellant had moved from the room and locked the door from outside, surely, the appellant facilitated in the commission of the offence, namely gang rape. We are therefore wholly convinced that the way the appellant acted, which is in consonate with the prosecution evidence, it is obvious that the case against the appellant was proved beyond reasonable doubt. The defence raised their concern for the need to conduct an identification parade. We did not see any need simply because it is in evedence that the victim stayed with the appellant for two consecutive days. The period of two days the appellant had with the victim was sufficient to identify the appellant. As such therefore, in our view, it was worthless in the circumstances of the case to conduct an identification parade. The last issue we wish to discuss is whether there was conviction entered or not. In discussing this issue we have noted that the trial 10 magistrate having found the appellant and the second accused guilty, went on and stated at page 61 of the record of appeal that; "it is for the foregoing reason both accused in this case lmani Charles Chimango @ Ima and Sharafi Hamis Twalibu @ Chinga are hereby found guilty as per charge and against both accused person as per S. 235(1) of the CPA" The immediate question is whether with those quoted words there was a conviction. On this we should be guided by the provisions of section 235(1) of the Criminal Procedure Act, Cap 20 R.E 2002 . The section provides:- ''235. The Court having heard both the complainant and the accused person and their witnesses and evidence shall convict the accused and pass sentence upon or make an order against him according to law, or shall; acquit him or shall dismiss the charge under section 38 of the Penal Code. " Basing on the wording of the section, it suffices to say in the circumstaces of this case that by all necessary implications a conviction was 11 entered. However, we emphasize that for avoiding doubt the word "convict" should be clearly and specifically appear in the judgment when the trial court had entered a conviction. That said and for the foregoing reasons, we are satisfied that the appeal before us has no semblance of merit. The same is dismissed in its entirety. DATED at MTWARA this 20 th day of February, 2019. A.G. MWARIJA JUSTICE OF APPEAL R.E.S. MZIRAY JUSTICE OF APPEAL F.L.K. WAMBALI JUSTICE OF APPEAL I certify that this is a true copy of the original. \ A.H. M MI DEPUTY REGISTRAR COURT OF APPEAL 12