joseph nzyungu vs republic 2013 tzhc 2058 15 august 2013

IN THE HIGH COURT OF TANZANIA

AT SUMBAWANGA DC CRIMINAL APPEAL NO. 120 OF 2012 (Appeal from the decision of the District Court of Sumbawanga in Original Criminal Case No. 166 of 2010) JOSEPH NZYUNGU...............................................APPELLANT Versus THE REPUBLIC..................................................... RESPONDENT 24th June & 15th August, 2013

JUDGMENT MWAMBEGELE, J.: In the District Court of Sumbawanga, at Sumbawanga the Appellant Joseph Nzyungu was charged with and convicted of the offence of rape c/ss 130 (2) (b) and 131 of the Penal Code, Cap. 16 of the Revised Edition, 2002 of the Laws of Tanzania. It was alleged that on 17.07.2010 at about 0130 hours at Tentula Village within the Sumbawanga District of Rukwa Region did have carnal knowledge of one Zurietha Fwalah; a woman aged seventy (70) years without her consent. He was consequently sentenced to serve a mandatory minimum term of thirty years' imprisonment and twelve strokes of the cane. Dissatisfied, he has appealed to this court against both conviction and sentence. The Appellant filed six grounds of appeal namely; one, that the learned trial Resident Magistrate erred in law in convicting him relying on the evidence of improper identification; two, the learned trial Resident Magistrate erred in law in convicting him without any evidence respecting an Identification Parade; three, the evidence of PW4 (a Police Officer) was hearsay; four, the PF3 which was tendered as an exhibit was improperly admitted as the court did not ask the appellant if he needed to cross-examine the Medical Officer who prepared it; five, the evidence of PW1, PW2 and PW3 was cooked in that it could not be easy to identify the appellant by means of a torch and six that the

charge against the Appellant was not proved by the prosecution beyond reasonable doubt. In the Memorandum of Appeal, the Appellant referred me to the case of R aym on d s /o F ra n c is Vs R Criminal Appeal No. 162 of 1993. He has also referred this court to and quoted the provisions of section 240 (3) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 as follows: "... the court shall inform the all used (sic) of his right to require the person who made the report to be summoned in accordance with the provisions of this subsection". 2 Mr. Mwandoloma, learned State Attorney refrained from supporting the Appellant's conviction and sentence meted out to him. He argued that the accused was convicted on the evidence of identification and bad character which were not sufficient to prove the guilt of the accused to the required standard; that is, beyond reasonable doubts. Mr. Mwandoloma was also of the view that the provisions of section 240 (3) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 of the Laws of Tanzania were not complied with thus making the conviction of the Appellant more unfounded. I will start arguing and deciding on the first, second and fifth grounds of appeal together which, in my view, are related. These are the two grounds on identification at the scene of crime and one on Identification Parade. With due respect, I hasten to

state from the outset that I am in agreement with the appellant who is supported by Mr. Mwandoloma, learned State Attorney to the effect that the material condition obtaining at the locus in quo at the time of the commission of the offence were unfavourable as to make any fair and correct identification of the culprit impossible. The commission of the offence took place in the dead of the night. In the premises, it cannot be held with certainty that the accused person was properly identified. However, with equal due respect, I am not persuaded by the Appellant and Mr. Mwandoloma's submission to the effect that this appeal rests, inter alia, on the identity of the accused person at the locus In quo. It is not in dispute that the 3 offence was allegedly committed in the middle of the night; at about 0130Hrs. It was Elias Lucas PW3 who testified to the effect that on the material night he heard the victim Zurietha Fwalah PW1 crying for help. He rushed to the locus in quo and saw the Appellant running away. He ran after him and caught up with him after a shot while. PW1 told PW3 that she was raped. Thereafter, PW3 took the accused to Norbert Kasika PW2; the Village Chairman. In these circumstances, in my view, the issue of identification of the culprit does not arise. The accused person, a resident of the village; neighbour of the victim and well known to the witnesses, was

arrested immediately after the victim cried for help while running away from the locus in quo. In the same line of argument, there was no need to conduct an Identification Parade. As it is an open fact that the accused was known to the victim, and that he was arrested when running away from the scene of crime after allegedly committing the offence, the identification Parade would not be necessary. For these reasons, it is my considered view that the appellant was wrongly convicted on the strength of visual identification as the same, for reasons already assigned, was, in the circumstances of this case, not necessary. These three grounds of appeal therefore are upheld to that extent. Another ground; the fourth ground, is a complaint on the noncompliance of the provision of section 240 (3) of the CPA. This is the ground to which I now turn. As rightly put by the Appellant and supported by the learned State Attorney, the PF3 which was tendered 4 as an exhibit was admitted without asking the appellant if he needed to cross-examine the Medical Officer who prepared it. Section 240 (3) of the CPA (part of which is quoted by the Appellant in his Memorandum of Appeal) is couched in mandatory terms that the court shall inform the accused of his right to require the person who made the medical report to be summoned in accordance with the provisions of this subsection for, inter alia,

cross-examination purposes. Let the provision speak for itself: "(1) In any trial before a subordinate court, any document purporting to be a report signed by a medical witness upon any purely medical or surgical matter shall be receivable in evidence. (2)... (3) 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 right to require the person who made the report to be summoned in accordance with the 5 provisions of this subsection" [emphasis supplied]". I have quoted the whole of Section 240 so that the relevant subsection is read in context for a better understanding. This was not done in the present case; that is, the court never informed the accused person of his right to require the person who made the medical report to be summoned in accordance with the provisions of subsection (3) of section 240 of the CPA. I wish to observe at his juncture that subsection (3) of section 240 of the CPA is couched in mandatory terms. This is evidenced by the use of the word "shall" in the subsection. It is elementary principle of interpretation that once the word "shall" is used in a provision it connotes that the provision is mandatory. This is in

the light of section 53 (2) of the Interpretation of Laws Act, Cap. 1 of the Revised Edition, 2002. This provision read: "Where in a written law the word "shall" is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed". It follows therefore that after the PF3 was received in evidence, and if the court did not think fit to, and as there was no request by the accused or his advocate, to summon and examine or make available for cross-examination the person who made the report, it was incumbent 6 upon the court, in view of subsection (3) of section 240-of the CPA, to mandatorily inform the accused person of his right to require the person who made the same to be summoned in accordance with the provisions of this subsection. It is apparent on record that this was not done. What then is the probative value of this medical report which was received in evidence as exhibit but the accused was not informed of his right to require the person who made this document to be summoned in accordance with the provisions of subsection (3) of section 240 of the CPA? This is the question to which I now turn. Apparently, this is issue is not virgin; it has been traversed the courts in this jurisdiction several times. It is well settled now that when an accused person is not informed of his right to require the person who made the

medical report to be summoned in accordance with the provisions of section 240 (3) of the CPA, such report lacks the requisite probative value and must be expunged from the record [see B u ru n d i s /o D eo Vs th e R e p u b lic, Criminal Appeal No. 33 of 2010, P a ra s id i M ic h a e l M a k u lla Vs R e p u b lic, Criminal Appeal No. 27 of 2008, A ra b i A b d u H assan Vs R e p u b lic, Criminal Appeal No 187 of 2005, S h a b a n i A lly Vs R e p u b lic, Criminal Appeal No. 50 of 2001, P ro sp e r M n jo e ra K isa Vs R e p u b lic, Criminal Appeal No. 73 of 2003 and M e sto n M tu lin g a Vs R e p u b lic, Criminal Appeal No. 426 of 2006, (all are unreported decisions of Court of Appeal) and D a w id o Q um unga Vs R e p u b lic [1993] TLR 120 also decision of the Court of Appeal], in all these decisions of the highest court of record of our land, there was no mince 7 of words: once a medical report is received in evidence and an accused person is not informed of his right to require the person who made it to be summoned in accordance with the provisions of section 240 (3) of the CPA, such report lacks the requisite probative value and must be expunged from the record. The provisions of section 240 (3) of the CPA are so fundamental in the administration of criminal justice but often overlooked by trial courts, more especially subordinate courts. Having realised this

noncompliance, the Court of Appeal directed through the A ra b i A b d u H assan case (supra) that Judges-in-Charge of High Court Zones in this jurisdiction should direct magistrates observance of this mandatory provision. I have come across noncompliance by subordinate courts of this mandatory provision more often than not. It appears a lot of water has passed under the bridge that the magistrates might have forgotten this pertinent direction of the court of Appeal. Perhaps it is high time they (the magistrates) were reminded of the same. If this is agreeable, the ball will be on the court of His Lordship the Principal Judge to trigger this process once again if His Lordship so pleases. In the light of the foregoing binding authorities to which I fully subscribe, I have no option but to expunge the PF3 from the record of this case which was tendered by PW4 as exhibit. The PF3 dated 17.07.2010 in the name of Zurietha Fwalah tendered in the trial court on 27.10.2010 by WP 3291 CpI Bupe PW4 and marked Exhibit PI, is hereby expunged from the record of this case. The fourth ground of appeal therefore succeeds. But before I move to another ground of appeal, let me say something on the evidence of bad character on which strength, as the learned State Attorney rightly put, the appellant was also wrongly convicted. As will be elucidated shortly, in criminal proceedings, evidence of

bad character of an accused person is not relevant in proving his guilt. Such evidence becomes relevant only when evidence has been given to the effect that the accused person is of good character; in which case evidence of bad character becomes relevant. PW1; the victim of rape in this case, testified that the Appellant is of bad character as he used to rape women.- When examined by the court, she is recorded to have said: "It is his character of raping he does not want to marry but raping only ... he raped me" The victim has mentioned the word rape only once in her testimony and it was when she was examined by the court in the above quotations. It is very unfortunate that the learned trial Resident Magistrate thought that this evidence was relevant to prove the accused person's guilt. Even if it was true that the accused person raped her, evidence of his bad character could not have become relevant in proving that the accused person indeed raped her. The provisions of section 56 (1) of 9 the Evidence Act, Cap. 6 of the Revised Edition, 2002 provide loudly and clearly as follows: "In criminal proceedings the fact that the accused person is of bad character is irrelevant, unless evidence has been given that he has a good character in which case it becomes relevant..." It therefore follows that there being no evidence led suggesting the accused person's good character, his bad

character had no relevance in proving the charges that faced him. That is to say, in the absence of any issue respecting good character of the appellant, the evidence of his bad character was wrongly invoked to convict him. There is another anomaly apparent in the proceedings of this case which would to address before moving to another ground. The testimony of the victim falls short of one of the ingredients of the offence of rape - penetration. In rape cases, as in the presentinstance, the best evidence is that of the victim herself [See K h a m is S a m w e i Vs R e p u b lic, Criminal Appeal No. 320 of 2010 and the B u ru n d i s /o D eo case (supra) which refers to several cases as well such as S elem an M kum ba Vs R e p u b lic Criminal Appeal No. 94 of 1999, Saidi A lly M ko n g 'o to Vs R e p u b lic Criminal Appeal No. 133 of 2009 and H a kizim a n a S y lv e s te r Vs R e p u b lic Criminal Appeal No. 181 of 2007 (all unreported)]. In the instant case the old woman in her crucial part of testimony is recorded to have said: "He came and grabbed (sic) me out starting undressing me and knew me and I raised alarm". [Emphasis supplied]. Can we prove rape from the foregoing statement of the victim? What did she mean when she said the accused "knew" her? I take note that the learned trial Resident Magistrate was not disturbed by PW l's parabolic language. He sailed in the

same boat as PW1 and referred to the act in his judgment as "the accused knew the complaint sexually by using force". What is this? In my considered view, this language, parabolic language, that is, is not known to criminal proceedings, more especially criminal proceedings involving rape. In a rape case, witnesses, especially the victim of rape, to support the prosecution's case, must not mince words. In a rape case the evidence is one in which the victim must call a spade a spade; not a big spoon. The victim must candidly state in a very detailed manner possible how the offence was committed; pointing out clearly the ingredients of the offence - force, penetration etcetera. Words like vagina or vaginal bruises, penis, semen, penetration of the penis into the vagina, e t cetera, should not be minced to mention or rather they should be mentioned as closely the victim possibly can. From what the victim said in court in the instant case, one cannot establish penetration, for penetration, under the 11 provisions of section 130 (4) (a) of the Penal Code, is an important element which must be specifically proved. Penetration cannot be proved by such words as "he came and grabbed me out starting undressing me and knew me and I raised alarm" It was incumbent upon the victim to prove penetration, however slight, in very clear terms. Penetration, however slight, is sufficient to

constitute sexual intercourse necessary to the offence. This was not done in the present case and therefore the offence of rape, unfortunately, has not been proved. I am fortified by the decision of the Court of Appeal in the B u ru n d is /o D eo case (supra) in which it was instructively held: "... in proving rape, one of the ingredients that must be established is, penetration. In doing so, it is not enough to say such and such a person raped so and so. Such a statement is too general. The complainant is expected to be more specific in her evidence and clearly point out what the accused person actually did and where. (See Ex. B. 9690 SGT DANIEL MSHAMBALA V R Criminal Appeal No. 183 of 2004, MOHAMED JUMA AND TWO OTHERS V R, Criminal Appeal No. 25 of 2009 (both unreported)" 12 In D a n ie l N g u ru & 4 O th e rs Vs R e p u b lic, Criminal Appeal No. 178 of 2004 (unreported), the Court of Appeal held that penetration cannot be proved by the presence of semen or bruises in the following terms: "Penetration is not proved by presence of semen on the body of the prosecutrix or bruises on her vaginal region. If bruises were such a natural consequence then many women would have opted for total abstinence". Indeed, this legal requirement in rape is satisfied by the least degree of penetration. Emission of semen is not a relevant factor for the crime. One cannot therefore escape

conviction in a rape case just because he did not emit semen. The question of force is, from evidence on record, also doubtful. The victim just said the appellant dragged her out, if that is what she meant by "grabbed". She did not say whether she resisted the act. Even if, just for the sake of argument, we were to rely on the bruises as evidenced in the PF3 which I have held as expunged from the proceedings in this case, as evidence of resistance and therefore suggesting force, we would not be correct so to hold as the same is not evidence of force from the accused person; we would not be sure if the 13 same were inflicted during the accused person's endeavour to commit the offence. In the circumstances of this case and what is available in the evidence of the victim, it is not clear at what point in time the alarm was raised and cry for help was called by the victim. Was it during the process of the act or thereafter. Or did she cry for help after the accused had already had carnal knowledge of her? This, from evidence, shaky as it is,-could not be possible. The circumstances of this case remind me of a joke that I once read on internet. It was a victim of rape calling 991 softly telling the police that there was someone in the process of raping her; "come and arrest him tomorrow"; the victim softly told 991. In the instant case it is not clear whether the victim cried for

help while the accused was in the process of raping her or whether she succumbed to the act and cried for help after the act. A lot of questions as to whether there was force used are left unanswered. It is elementary criminal jurisprudence that such doubts must be resolved in favour of the accused person. There is yet another anomaly apparent in the proceedings of this case which I also wish to address before moving to another ground of appeal. The learned trial Resident Magistrate in the course of his judgment misdirected himself as to the onus of proof. In his judgment, the learned trial Resident Magistrate is recorded to have said: 14 "There is no doubt that the complainant was sexually known. The accused person was connected to this act. The court cautioned itself as to why the accused person is made connect to this act and not to any other person as the court believes that there are many men in that village how comes that no any person to come and defend him?". Despite some linguistic flaws in the foregoing quote, the message is loudly clear that the learned Resident Magistrate wanted the accused person to call witnesses to prove his case as there is, accordingto him, an abundant of them in the village. This was not proper as ithad the effect of shifting the burden of proof from the prosecution to the accused person. In a criminal trial, the general rule is that the onus

of proving the charge against the accused person always lies on the prosecution. Such onus never shifts to the accused person. The standard of proof is certainly beyond reasonable doubt. The accused is not supposed to prove his innocence [see G a b rie l s /o M a h o li Vs R e p u b lic [1960] 1 EA 159, M oham ed S a id M a tu la Vs R e p u b lic [1995] TLR 3, N a th a n ie l A lp h o n ce M apunda a n d A n o th e r Vs R e p u b lic [2006] TLR 395 and S e le m a n i A b d a lla h a n d tw o o th e rs Vs R e p u b lic DSM Criminal Appeal No. 384 of 2008 (unreported)]. 15 I now turn to the third ground of appeal; this is the ground respecting PW4's evidence as being hearsay. This point will not detain me. Admittedly, after the PF3 has been expunged, the rest of her evidence becomes hearsay. This witness is the police officer who was in conduct of this case; she is the one who took the victim to the hospital for examination. This takes care of the third ground of appeal. As for the sixth and last ground of appeal, I think the appellant's acts were not sufficiently established to justify a finding that he indeed raped the old lady; Zurietha Fwallah. As already stated above, the evidence falls short of proof of the offence of rape. I am satisfied, however, that there is sufficient evidence on record to prove a minor and cognate offence of sexual harassment contrary to section 138D

(1) of the Penal Code. This takes care of the last ground of appeal. In the final analysis, I allow the appeal to that extent. I quash the conviction of the appellant for rape and set aside the sentence of thirty years imprisonment imposed on the appellant. If not executed, the sentence of corporal punishment is also set aside. In terms of section 138D (4) of the Penal Code, Cap. 16 of the Revised Edition, 2002, I substitute therewith a conviction for sexual harassment contrary to section 138D (1) of the Act. I take note that the offence of sexual harassment I have convicted the appellant with, carries a maximum penalty of five years on conviction. If the appellant was to be sentenced to such a maximum penalty, under the commuting of 16 sentences policy, he would have finished or be about to finish his jail term by now. In the premises, I sentence him to such a term as would result into his immediate release from custody unless he is otherwise lawfully held for some other offence. DATED at SUMBAWANGA this 15th day of August, 2013.

3. C. M. MWAMBEGELE

JUDGE 17