20190530 TZHC Mwanza

.,';; ,,·, ··. ,, ~ ', ;~ ,. IN THE HIGH COURT OF TANZANIA ·- ~ (MWANZA DISTRICT REGISTRY)

AT MWANZA CRIMINAL APPEAL NO. 234 OF 2018 (Appeal from the Judgment of the District Court of Musoma at Musoma (Mus hi, SRM) Dated 28 th of February, 2018 in Criminal Case No. 48 of 2016) MASH AKA JOSEPH ........................................ APPELLANT

VERSUS ' THE REPUBLIC ................... ." ............................. RESPONDENT

JUDGMENT OF THE COURT 02.05.2019 & 30.05.2019 M.K. ISMAIL, J This appeal is against the judgment of the District Court of Musoma at Musoma, delivered on 28th February, 2018, on a rape charge, instituted in respect of Criminal Case No. 48 of 2016. The appellant herein was charged with and convicted of the offence of rape contrary, to section 130 (1) (2) ( e) and 131 (1) of the Penal Code, Cap. 16 R.E.

2002. It was alleged that on divers dates between November, 2015 and 9th February, 2016, at Kamnyonge area within Musoma Municipality, in Mara Region, the appellant had 1 .--- \ ~ ~- 1 t i i' I i carnal knowledge of one Chaysiku d/o Hassan, a girl of 16 years of i I I: age. \ I Brief facts of this case a~e that, in June, 2015, the victim, a I I . I student at Kamnyonge Primary $chool student, was sent to buy meat I or I at the appellant's butchery. arrival, he met the appellant who I offered her TZS. 5,000/= to bui clothes and a further sum of TZS. I 10,000/= for what was known ~y the victim (PWl) as for "my daily I activities products". At around ~.00 to 7.00 pm, in November, 2015, I . I the appellant went to the PWl '~ school and picked her and led her i ' I to a semi-finished house wher¢ she undressed her, covered her i i mouth and raped her. It is alleged that the appellant threatened to I I kill her if she disclosed what happened. She said that she I I experienced severe pains whidh prevented her from attending I school for one week. The secon p incident occurred in December, 1 I 2015, when the appellant allegedly picked her from school and took I I her to a bush where he indulged in a sexual act, without her ! I i consent, after which he issued a threat, once again, that he would1 ! I kill her if she revealed what happ~'.med. On yet another occasion, on i 9th February, 2016, the appellant took PWl to Biafra ground where a i similar indulgence was performetl. After that, the appellant took :1 I ,,L ~ . .,..------- ~ ( } t, ____, ' \c- ~ ji ' i i PWl to a restaurant where h~ bought her chips and told her to go j1 I I home. PWl resisted, an act that enraged the appellant who

I II decided to leave her there. Worried about what would befall her I when she gets home, PWl ch9se to spend the night at her friend's I I home at Mwisenge. This did not go well with her brother, PW2, who 1, went to her school to establish \.vhere she was the previous night. It is I i i at that point in time that the mdttter was reported to Police, and PWl I' I I' led them to the appellant's bwtchery from which he was arrested I and charged with the offence. PW 1 was subjected to ~edical examination performed by ,, i PW4, who found that PWl had \lost her hymen, meaning that she is I iI no longer virgin. She then filled Pf3 which was tendered as exhibit P1. I I The trial court proceedingJ culminated into a finding of guilt. I j I Consequently, the court conviqted the appellant and sentenced I' him to imprisonment for thirty yedrs. I l Aggrieved by the convictic~n and sentence, he has appealed I . I to this Court. His grounds of appeal are as follows: I 1· I; 1. That, the trial court had erred I in law and facts by failure to I I detect that PW1 victinf, was a suspect witness whose I I evidence dragged to succumbing pressure by her brother 3 ~ .,,...---· I f f ~ _ _ , /v-u 1.- ~ after absconding sch~ol attendance so unsafe to base a conviction.

2. That the trial court err~d in law and a fact to rely on the I PW4 and PF3 as cor~oboration, regardless the contents I 1 therein in PF3 does not necessary mean rape and or carnal 1 I I knowledge but may b¢ other accidental. I 3. That the trial Court bas~d a conviction to the appellant on I I the case which wds rather tainted with contrived I ev,'dence. II I At the hearing of the appJa1, the appellant fended for himself I I while the respondent was repr~sented by Ms. Gisela Alex, learned i State Attorney. The appellant !'chose to let the counsel for the I i' respondent submit first on the g~ounds of appeal before the baton I I passed on to him. I I I Ms. Alex began her suqmission by conceding that the I judgment sought to be impugned suffers from one serious irregularity, I in that, though the trial magistrat~ indicated, at page 7, that he had I gone through the evidence of di°th sides and found the accused I guilty, she did that without carr'>{ing out the analysis. The counsel I submitted that the trial magistrate's analysis was only in respect of 4 ~- ,, the prosecution's evidence and she did not say if such evidence proved the case at the required standard. She was of the view that the analysis, if any, was not enough and what she said about the case was a general statement without any details of how she arrived at the finding of guilt. The counsel prayed, in consequence,

that the Court should invoke the provisions of section 388 and order the trial court to re- evaluate the evidence and come to a proper conclusion on the guilt or otherwise of the appellant. The appellant supported the respondent's submission, praying that the he be released on accqunt of the fatal omission done by the trial court .. Submitting on the grounds of appeal, the counsel for the respondent rubbished the first ground of appeal. She contended that page 9 of the proceedings clearly reflects that the trial court relied on PW l 's testimony who testified to the effect that the appellant raped her on three different occasions between November 2015 and February 2016. The counsel relied on the case of Shija Misalaba v. R, Criminal Appeal No. 226/2011 in which the --~'- Court of Appeal held that, in rape cases, the best evidence is that of \ 5 ,, I

I

I I I the victim herself. She contended further that the trial court was '' i fortified in her view by the testirony of PW5 and exhibit Pl which showed that PWl had lost her vir@inity. I With respect to the secondi ground, the counsel was adamant I i that exhibit P1 was received qnd recorded at page 15 of the I I proceedings and that this testimony showed thdt the victim's hymen ! had been removed, meaning thbt she had been raped more than I I once. She argued in the alternative that, should the Court find that I I i such evidence falls short of the re;quired value, the Court can still rely I on the decision in Sa/u Sosoma ~- R, criminal Appeal No. 31 /2006 in I which the evidence of the vittim was found to be the best i i evidence. She urged the Court toldisregard this ground. I I On ground three, the couns~I for the respondent held that the I prosecution's evidence was sufficient, especially that of PWl, the victim, who gave a good accour::it of what happened. She argued I further that the fact that the vittim was 16 years of age and a I 1 I student, meant that the appellant1was guilty of statutory rape even if I I, she consented. She prayed that the appeal be dismissed and the I trial court's decision be upheld. 1L r--rv-p '- ~ - ,I 6 I' I 1: The appellant's rebuttal Iwas concise and precise. She I wondered how the alleged offence would be committed three I times without

other people, including local government leaders, knowing. He threw blemishes tol the victim's brother who beat the ' victim and forced her to appointl a finger at him. He contended that j he demanded that there should be a medical examination which j would involve him as wel,I but that request was turned down. He submitted that he still contends t~at PF3 is still not a reliable evidence I to be relied upon, arguing that the doctor said that the victim was I not raped. He prayed that his appeal be allowed. I In the first ground, the appJllant attributes his predicament to the victim's pressure from his brot~er, and he feels that the trial court ought not to have taken this \as the basis for conviction. The respondent contends that the court was right and that the basis for I its decision was the victim's testimony, PW5's evidence and exhibit Pl. I' I find nothing to justify his pbsition on this. What held a major sway in the trial court's decision lis PW 1's testimony which gave a narration on how the appellant made his first approach and all other I subsequent meetings. PW2 came to know after the third incident I 7, -~ I and chances are that he would not be in the picture if the victim ' I hadn't disappeared after t7e third incident. It IS quite incomprehensible that that onel occasion would be the basis for pointing a finger at the appellant. The appellant did very little

or I nothing to controvert PWl 's testimony. While I may discount I testimonies of PW2 and PW5 which do not establish the appellant's I culpability, I cannot hold that PWl 's account is of no credence. Her testimony, which is recorded at\ pages 9 and 10 provide a very convincing detail which proves\ that the appellant had carnal knowledge of her on all those ocbasions. This is consistent with what the Court of Appeal held in Shija ~isalaba's case (supra). I The victim has also stated with meticulous consistency, how the ' appellant entered her and the ~ain and agony she experienced. She recounted how she missed scrool for one week after the first act and the last act which forced her! to go and sleep to her friend. This proves a vital ingredient of penetration, which is decisive in rape cases. These assertions were not mere statements of a general ' nature. They were articulate sta'tements which are important in ' founding a conviction as was prolounded in the case of Ex-B 9690 I I ~~- 8 SSGT Daniel Mshambala v R, Cri1minal Appeal No. 183/2004. It was held: " It occurs to us that this was too general statement, we think if at all PW 1 was raped, she ought to have gone further to explain whether or not the appellant inserted his penis into her vagina, whether or not the penetration was slight etc. In general, PW 1 ought to have been more forthright and thorough in her evidence

on the alleged rape. It was not enough to make assertion that she was raped without more. She ought to have been forthcoming in her ,evidence in order to enable the court to make a meaningful finding on whether or not rape was committed." The position of the Court of Appeal in the above passage was emphasized in the subsequent decision of Mathayo Ngalya@ Shaban v R, Criminal Appeal No. 170/2006. In this matter the Court held as follows: "... For the offence of rape it is of utmost important to lead evidence of penetration and. not simply to give a general statement alleging that rape was committed without elaborating what actually took place. It is the duty of the prosecution and the court to ensure that the witness gives the relevant evidence which proves the offence." I am overly persuaded that the trial court was right in its finding, and I see nothing to fault her reasoning on this. I dismiss this ground. 9 ~~~ The appellant contends in the second ground, that the court was in error when it relied on PW4 and PF3 as corroborating evidence. The respondent contends that the court was right, especially when the testimony _indicated that PW 1 had lost her virginity. I find the appellant's contention plausible. PF3 did not tell if there were sperms or bruises which would indicate that the victim was raped. Neither exhibit Pl nor 'PW4 provided a surest position that loss of hymen

was caused by the ·appellant or was a result of a rape incident. I am of the firm view that the said testimony had nothing to offer as a corroboration to PWl 'S testimony. I, therefore, sustain this ground of appeal. The appellant's third ground of appeal takes serious exception to what the appellant alleges the trial court's reliance on tainted and contrived evidence. The respondent's counsel is of the view that I the testimony that led to his conviction was quite sufficient and credible to found a conviction. I couldn't agree more with. the respondent's contention. As stated earlier on, the trial court's finding of guilt was based on the testimony of PW 1, the victim, Which pointed a finger at the appellant. Nothing can be said to constitute a fabrication in that 10 ~~-- testimony. The appellant has huriled an allegation that PW2 had a quarrel with his wife, following the farmer's suspicion that his wife had an affair with the appellant. I find nothing of credence to make this Court believe that the appellant was framed. It does not add up that PW2 would choose such a long and arduous route to settle ' score. This sounds more of an escapist contention which should not detain us. It is lame and devoid of any legal standing and I reject it out of hand. As stated, at the beginning of the address, the respondent conceded to the fact that the trial court's judgment was a one sided

affair that ignored the defence evidence completely. As rightly contended, judgment is an offspring of evaluation of testimonies led by the parties to the case. It is a process that involves evaluation and sifting of facts as submitted by the parties, to enable the adjudicator to arrive at a conclusion on which of the testimonies he believes as credible. Thus, a trial court has an inescapable responsibility of ensuring that, in arriving at a decision, it considers evidence tendered before it, in its totality. Evaluation of evidence in an exclusionist manner constitutes a fundamental error which renders the decision li -~~ ,. illegitimate and, therefore, unsupportable. This position has been stated time and again. In Henry Mpangwe and 2 others v. R (1974) LRT 50, the Court quoted with .approval, the decision in Ndege Marangwe v. R 1964 EACA 156, and held, as follows: "It is the duty of the trial judge when he gives judgment to look at the evidence as a whole 1... It is fundamentally wrong to evaluate the case of the prosecution in isolation and then consider whether or not the case for the defence rebuts or casts doubt on it". Another impetus to this reasoning was provided in Elias Stephen V. R (1982) TLR 313 (HC), in which the following finding was made: "it is clear from the judgment that the trial magistrate did not seriously consider the appellant's defence. Indeed, he did

not even consider the other defence witnesses who testified to it. He merely stated 'defence of accused has not in any way shaken the evidence". This position of the law got a backing of the Court of Appeal in Malando Bad' and 3 others v. R (CAT) Cr. App. No. 64/93 Mwanza (unreported), in which the appeal was allowed and the appellant was released. The superior Bench held: "As was held by the Court of Appeal in Okoth Okale v. Uganda --~ (1965) EA 555 it is an essentially wrong approach provisionally 12 to accept the prosecution case and then to cast on the defence the onus of rebutting or casting doubt on that case. It is an error separately to look at the case for the defence but evidence should be looked at as a whole. We believe that had the trial magistrate not fallen into this error, his decision on the case would probably have been different." I I am in total agreement with the respondent's counsel that what the trial court pronounced was not the judgment worth its name and knowri qualities of a valid judgment. It was a mere condemnation. Certainly, the conviction and the resultant sentence were a one sided affair whose cure is to have it vitiated, as was propounded in Lockhart-Smith v United Republic (1965) EA 217. The Court held: " .. .failure to take into account any defence put up by the accused will vitiate conviction ..·.". See also Charles Samson versus Republic,

Criminal Appeal No. 29 of 1990 (Unreported). This fatal effect cannot be cured by invoking section 388 of the Criminal Procedure Act as coniended by the Counsel for the Respondent. In view thereof, I decline the Counsel's invitation. .------;;-/~ r ,. 13 • ,. Thus, while I substantially idismiss the , appeal as lacking in I , I ~••' material substance, I, on the basi$ of serious flaws pointed out, quash I I the judgment and the ensuing c;:onviction, set aside the sentence, i i and set the appellant free, unless;;he is otherwise held on other lawful grounds. It is so ordered. DATED a ~ ~ . h i s 30 th day of May, 2019. (,)0 - ~/_;,~ ""'··'/! i. I ;, ~ . ,~. ~ =::;::> . 'l'; ~-~ ,~'\? 1! :'°"' ~. · f.l!t\ .K. ISMAIL., >C<,'1!1>,.I. j ;;;> \ _1:~· 1 I .,.l JUDGE V -~ l_f ~~fi I ' \'--:::, -k ', ' -~<.Jw -,. "' rti')':.,',· ::°.,y,.>Y· ,ri,r~~~, . 1lt'JlW. ~ - • C • i 14 1: I I: i: ,I