hashimu ally makuwa vs republic 2008 tzhc 275 18 july 2008

IN T1IE HIGH COURT OF T A N Z A N IA

AT MTWARA

APPELLANT JURISDICTION CRIMINAL APPEAL NO 28/2007 (O riginal C rim inal Case No. 234/2006 o f the D istrict C ourt o f M asasi at M asasi. Before: M .O .Lilibe ESQ P D M i/c ) * IIASHIMU ALLY M A K U W A .......................................... APPELLANT

VERSUS THE R EPU BLIC ..................................................................R ESPONDENT 30/6/2008 & 18/7/2008 Rwcycmamu J., Judgment In Masasi District Court (DC) Cr. Case 234/2006, the appellant Hashim Ally M akuwa was arraigned on a charge with two counts. The first was o f rape c/s 130 (1) (2) (e) and 131 o f the Penal Code - statutory rape. The second count which was in alternative was o f impregnating a school girl c/s 5 of the Education Act 25/1978. He was convicted on the first count and sentenced to 30 yrs imprisonment hut acquitted on the 2nd count. The facts at trial were in brief as follows: The ‘victim ’ Pw1 testified that she was 17 yrs o f age; that on 10/6/2006 the appellant passed her home and requested that they go and have sex. She then went with him and they had sex at his brother's house. The relationship continued until they left together and went to stay in his home village M kwapa, where they stayed until her brother came for her. I hasten to point out that her brother Pw2’s story did not exactly support her version. He testified in brief that on 30/10/2006 he noticed that his sister P w 1 was pregnant. ‘They' asked her and she said it was the accused/appellant who made her pregnant. They took her to hospital, she was found to be 4 months pregnant - a fact also testified to by the Dr. Pw 5. The version o f Pw3 ‘the victim ’s sister was not

exactly consistent with that o f the victim or her brother Pw 2. She testified that her sister disappeared from their home in June. ‘They’ made a follow up and found her cohabiting with the accused in his house. They took the victim home while the accused escaped when ‘th e y ’ tried to have him arrested. She went on to testify that later the victim was found to be pregnant and she named the accused as the culprit. It is not clear if by the word ‘they’ the witness was referring to her and her brother Pw2 or some other persons. According to Pw1*, the medical examination on the victim was conducted on 31/10/2006. The story o f detection o f the pregnancy was testified to by Pw4. That witness testified that he was a head teacher o f a school where ‘the victim ’ was a standard VI pupil. According to the latter, on 30/10/2006 their school decided to have a random pregnancy test following which the victim was discovered to be pregnant and expelled from school. On those facts, the DC found the case in respect o f the first count proved but the appellant disagrees, a position shared by the republic/respondent. In his 6 grounds memorandum o f appeal (MA) which he adopted at the hearing, he raised basically three issues. First that he was 16 years at the time. Second, that the alleged rape was not proved because the victim claimed to have had sexual intercourse with the appellant

on 10/6/2006, but delivered a baby in December 2006 - 6 months after instead of the usual 9 months. Three, that the case against him was a frame up and that was why no neutral person from the village was called to testify that he did cohabit with the victim at the alleged material time, and concludes that the trial court was wrong to rely on the evidence of P w l, Pw2and Pw3 all relatives. The learned state attorney Mr. M kude declined to support conviction for statutory rape on ground that the age o f the victim -a n important ingredient, was neither established nor considered by the trial court. He however submitted that on the facts, the offence o f impregnating a school girl was proved contrary to the trial court decision. I find it convenient to first deal with the issue o f age o f the appellant which is relevant in respect o f sentence. In ground 5 o f the MA, the appellant states that he was bom in 1991 and he told the police so after they arrested him, that he was surprised to hear during trial that he was 22, and that he stated in his defense that he was 16 but he was sentenced for 30 yrs. Mr. Mkude state attorney for the respondent submitted on that issue that the charge sheet indicated the appellant to have been 22 yrs, which submission I take to mean that he was disagreeing with the appellant on that issue. I have checked the trial court record but there is nothing

to indicate that the appellant raised the issue o f age at trial. At the date o f first hearing however, he repeated his claim that he was below 18 and requested a verification o f his age. Following that an order for “examination for age- maturity” was made by this court on 26/11/2007. The D r’s report subsequently received by this court vindicates the appellant as it shows his age to be below 18. May be it useful to point out at this stage that to avoid such a mishap in sentencing in future trials, subordinate courts would be advised where the charge sheet indicates the accused’s age to be close to 18 to request for a D r.’s opinion as to age. Be that as it may, in view o f the un contradicted D r’s report that the appellant is a boy below 18, who if proved guiltv and is a first offender can only be sentenced to corporal punishment in terms o f section 131 (2) (a) o f the Penal code (CAP 16 R.E.2002), the sentence o f 30 years passed on him can stand. The next issue for decision is w hether there was evidence to prove that the appellant had sex with the victim and whether the victim was below 18 yrs o f age. I agree with the learned state attorney that the issue o f age o f the victim was not addressed at all by the DC. As this is a case o f statutory rape, this ground alone is sufficient to find the case not proved. There is yet another issue relating to evidence o f the act

o f sex between the appellant and the victim. The evidence on that issue in the DC was based on inconsistent versions regarding the relationship between ‘the victim’ and the appellant as told to the court by Pw ‘, Pw2antl Pw3as pointed out above. While the victim claimed that she cohabited with the appellant in another village until removed by her brother P>v2, the latter mentions nothing of the like; his story starts abruptly with discovery o f the pregnancy without explaining what prompted that discovery. The version the sister Pw 3 does not support the version o f the two- there was no mention o f when pregnancy of the victim was detected. Curiously their story is so slackly told that it is not clear whether the three were staying alone or with their parents or elders. There is again another issue, that of the appellant’s un contradicted submission in ground 2 (a) and (b) o f the M A that the victim delivered a child 6 months after the alleged first sexual encounter. Unfortunately the trial court record is silent on the matter- it is not known whether on 8/1/2007 when the victim testified she was pregnant, as she ought to have been, or had already delivered but a prem ature baby. I note that the DC acquitted the appellant on the second count, which is rather strange given that he found the first count proved, unless the conclusion was because the victim was not pregnant at

the time as expected, but that court was satisfied on the evidence that the appellant had sex with the victim so he was guilty o f rape. Be that as it may, in my opinion the inconsistency in the evidence o f the prosecution witnesses renders probable the appellant’s version o f the case against him having been a frame up and the unresolved questions create reasonable doubt in the prosecution’s case. The DC concluded that the case was proved because the victim was found to be a credible witness and "there was no reason f o r P W l to cook this case against the a ccu sed whom they had no previous g ru d g e s”. I believe the DC had a duty to explain its reasons for finding the victim credible particularly when her version o f events was inconsistent in material particulars with that o f the other two witnesses who testified on the same issue. Regarding the absence of grudges, I can only caution that one may never know for sure what motivates human behaviour, but in cases of this nature, protection o f the identity o f the real culprit may well constitute a motive to lie. It all depends on the circumstances o f each case particularly the rest o f the evidence. In the evidence led in this case, it can not be stated with the required certainty that the appellant had sex w ith the accused at the time alleged in the charge sheet or at all. In a nutshell, I quash the appellant’s

conviction in respect o f the first count, set aside the sentence o f 30 years and order his immediate release from prison unless he is otherwise lawfully held. It is so ordered. Before I let go o f this matter, I feel compelled for what ever it is worth to comment as follows: From a num ber of statutory rape cases which have come before me on appeal, I have noted a disturbing trend revealed by the evidence given by the “victim s’ in these cases. Most o f them testify boldly that ‘the appellant requested that we should go and have sex and I obliged ’or something to that effect- it is as if the girls are unaware that they have a responsibility and the pow er to say ‘no. Could it be that this phenomenon is a reflection that something has been missed in the multi dimensional strategies now in place for protection o f the “girl child”? It is common knowledge that socio-economic changes in society have to a <?reat extent led to erosion o f the family structures which were useful as ‘social safety nets' for raising young girls into responsible adults. May be there is need to rethink the strategies, to also stress sensitization o f the ‘girl child’ to feel powerful and responsible to say ‘n o ’.