juma hamidu kisoma vs republic 2010 tzhc 291 10 february 2010

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 45 OF 2000 (Original from Cr. Case No. 104 of 1999 District Court of Ruflji at Utete) JUMA HAMIDU KISOMA VERSUS THE REPUBLIC Date of last Order : 2/12/2009 Date of Judgment : 10/2/2010 JUDGMENT Shangwa, J. The Appellant Juma Hamidu Kisoma was charged with the offence of rape C/SS 130 & 131 of the Penal Code. He was so charged in the District Court of Rufiji at Utete. On 25th February, 2000, he was convicted of the offence charged and sentenced to 30 2 years imprisonment. He was not satisfied with both conviction and sentence. He appealed to this court. On 5/9/2000, his appeal was rejected summarily by the Court A. G. Bubeshi, J. (Rtd). He then appealed to the Court of Appeal of Tanzania against the summary rejection of his appeal. On 27/6/2006, the said Court D.Z.L. Lubuva, J. A. (Rtd) quashed and set aside the decision of this court made on 5/9/2000 and remitted the matter to this court for its hearing on merit. On 20/7/2009, this court gave the Appellant opportunity to present his appeal. He told this court that he has nothing to add to his grounds of appeal which are as follows: 1. That the learned trial Magistrate erred in law and misdirected himself in convicting him basing on the evidence of a single witness i.e P.W.2 without corroboration. 2. That the learned trial Magistrate misdirected himself when he relied on evidence of PF3 which was tendered in court as exhibit P I . 3 3. That the learned trial Magistrate erred in law and fact by relying on the evidence of P.W.2 and P.W.3 who are wife and husband without corroboration. 4. That the learned trial Magistrate erred in law by refusing his application to call witnesses on his side. 5. That the learned trial Magistrate erred in law and fact by not taking into consideration his defence of alibi. On the first ground of appeal, the learned State Attorney, Mr. Ishengoma Kato contested the Appellant’s first ground of appeal by submitting that the court can convict on evidence of a single witness. He said that under Section 143 of the Evidence Act, 1967, the number of witnesses does not matter. In general, I agree with the learned State Attorney on the first ground of appeal that the court can legally convict on evidence of a single witness but I think that in this particular case, the testimony of P.W.2 Ashura Mwangia who is the only witnesses who gave direct evidence against the Appellant ought to have been corroborated. This witness told the trial District Court of Rufiji District that on 6/11/ 1999 at noon, she 4 left home and went to the neighbouring village to buy cow peas and that on the way she met the Appellant who got hold of her and dragged her to the bush from where he raped her, and that when she resisted from being raped, the Appellant took a razor blame and cut her with it on both hands and that the Appellant took her khanga and covered her mouth with it in order to stop her cries from being heard. She further told the trial court that after being raped she went home and reported the incident to her husband who took her to Ikwiriri Police station to report the incident, and that the Police gave her PF3 which had to be filled after being medically examined by the Government Hospital at Ikwiriri. I have the following reason for saying that the testimony of P.W.2 ought to have been corroborated: The explanation which was given by her on how she was raped is not plausible. The question is how could the Appellant rape her while at the same time cutting her with the razor blade and covering her mouth with a khanga? Such acts could have been committed by the Appellant in the course of robbing something from her but not in the course of raping her. The act of raping a woman by a man requires the engagement of both the right and left hand in order to accomplish it. Rape itself involves an act of having sexual intercourse between a man and a woman. The circumstances under which P.W.2 alleges to have been raped rules out the possibility of having sexual intercourse with her at the time of the incident. During trial, the prosecution tendered PF3 which was received by the court as exhibit PI. It was observed on this exhibit that P.W.2 sustained three cut wounds on her arms by use of a sharp weapon and that vaginal specimen was taken and sperms were seen through the microscope which implied that she was sexually assaulted a few hours ago. In my view, this piece of evidence does not corroborate the evidence of P.W.2 who said that she was raped by the Appellant. The incident itself is alleged to have taken place at noon. P.W.2 did 6 not go to report the matter to the Police immediately after the incident. She waited for her husband who was away from home until when he came at 5.00 p.m. and accompanied her to the Police Station at Ikwiriri for the purposes of reporting the incident. In fact, the reasons why she did not report the incident immediately after its occurrence leaves much to be desired. By the way, was it necessary for her to wait for her husband to come back home in order to report the incident. I do not think so. With regard to the sperms which are said to have been seen in her vaginal specimen, there was no proof to show that those sperms belonged to the Appellant. Such proof was necessary because P.W.2 and her husband (P.W3) might have met sexually earlier before the incident and those sperms might have been those of her husband. For these reasons the first ground of appeal succeeds. On the second ground of appeal, the Appellant submitted that the trial Magistrate did not inform him of his right to require the 7 Doctor who made the report on PF3 to be summoned for cross - examination as provided for under S. 240 of the Criminal Procedure Act, 1985. He contended that the trial Magistrate erred in law by acting on PF 3 without having informed him of his aforementioned right. The learned State Attorney submitted on behalf of the Respondent that as the Appellant did not object when PF3 was tendered in evidence, it is of no use for him to complain against the trial Magistrate’s decision for acting on it. For me, I agree with the Appellant’s contention on this ground. Although under S. 240 of the Criminal Procedure Act, 1985, the court has a discretion where it thinks fit to summon the person who made the report, it has a duty to inform the accused of his rights to require the person who made the report to be summoned for being cross - examined. In this case, the record shows that the court did not inform the Appellant of his right to require the person who made the report on PF3 to be summoned for being cross - examined. Thus, the trial court erred in law for not doing so. Thus, the second ground of appeal succeeds also. I have examined the PF3 itself i.e exhibit P I and found that it does not bear the name of the Medical Officer and the official stamp of Ikwiriri Government Hospital where P.W.2 was allegedly taken for medical examination after the alleged rape incident. The PF3 bears only the signature of some one who is unknown and who purported to sign it as Medical Officer of Ikwiriri Government Hospital. It is quite obvious therefore that the PF3 exhibit PI has no value to be relied upon. On the third ground of appeal. I think that the trial Magistrate did not err either in law or fact by relying on the evidence of P.W.2 and P.W.3 who are wife and husband. As correctly submitted by the learned State Attorney for the Respondent, under S. 127 (1) of the Evidence Act, 196, family members are competent and compellable witnesses . This means that the court can convict on the evidence of family members such as wife and husband or brother and sister in cases where one of them is a victim of crime so long as the court 9 considers such evidence to be truthful. However, in this case, the evidence of P.W. 2 is not reliable and the evidence of P.W.3 is hearsay. Therefore, the trial court was wrong in convicting the Appellant on their evidence. The reason why I have stated above that the evidence of P.W.3 is hearsay is because he was not present when the incident occurred. He was merely told by his wife (P.W.2) of what happened to her when she left home for the neighbouring village. Thus, the third ground of appeal succeeds but for a different reason. The fourth ground of appeal raises an issue as to whether or not the trial Magistrate refused the Appellant’s application to call his witnesses. I examined the proceedings of the trial court and found that at the close of the prosecution’s case, the court did not inform the Appellant of his right to give evidence whether or not on oath or affirmation on his behalf and his right to call witnesses in his defence. Let alone that, the court which tried him did not ask him if he had intention to exercise those rights. The trial court’s failure to do so violated the provisions of S. 231 (1) of the Criminal Procedure Act, 1985. Therefore, although the trial court did not as 10 such refuse the Appellant’s application to call witnesses on his side but the trial court erred by not informing him of his right to call witnesses. Thus, the fourth ground of appeal succeeds also but for a different reason as well. On the fifth ground of appeal, the Appellant faults the trial Magistrate for not considering his defence of alibi. Before the trial court the Appellant said that on 6/11/1999, he was attending a celebration and that there were some people who saw him there. The learned State Attorney for the Respondent submitted that the trial court did not err in law for not considering the Appellant’s defence of alibi as he did not give notice to the trial court and the prosecution before hearing of the case of his intention to rely on the defence of alibi just as required under S. 194 (4) of the Criminal Procedure Act, 1985. It is quite true as submitted by the learned State Attorney that the Appellant did not give notice to the trial court and the prosecution of his intention to rely on the defence of alibi before the hearing of the case as provided for under S. 194 (4) of the Criminal Procedure Act, 1985. I will therefore give no weight to his defence of 11 alibi. However, as already indicated, there are a lot of doubts surrounding the Appellant’s accusations. His conviction appears to have been wrong both in law and facts. Therefore, I quash it and set aside the sentence of 30 years imprisonment which was imposed on him. As such, I order that he should be released from prison unless he is detained therein on a different matter. A. Shangwa JUDGE 10/ 2/2010 Delivered in open court this 10th day of February, 2010 in the presence of the Appellant and in the absent of the State Attorney for the Respondent. JUDGE 10/ 2/2010