20171222 TZHC Dodoma2

"ORIGINAL" IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA .. CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPE.A.L NO. 106 OF 2017 (Originating from the District Court of SING/DA Criminal Case No:--1 1 of 201 7) OMARY S/0 MOHAMED .._~•······························APPELLANT -VERSVS THE. REPUBLIC ... ~ .............. ~ ..................... .-... RESPONDENT JUDGEMENT 22ND DECEMBER 2017 Mansoor, J: This appeal anse out of the judgment dated 17 July, 201 7, passed by the District Court of Singida in Criminal Case No.11 of 201 7, by which, the Appellant was convicted of the offence charged of rape contrary to Section 130 ( 1) and (2) (e ) 1 "ORIGINAL" and Section 131(1) of the Penal ~ode, _gap 16 R: E 2002. The particulars. of the offence stated that on 23 rd day of September 201 7 in the morning hours at Ilongero Village, Ilongero Ward within Singida · District in Singida Region, the Appellant did have unlawful carnal knowledge with a 9 years girl named - Rahma d/ o Said. Rahma Said, -the victim was a standard II student at Mwakabiji - . Primary School. ,,,,,,,,,_. .. . Ba,ckground of .the- matter 1s that the Appellant 1s the husband of the mother of the vi~tim, and that they live in the same house with the victim. The Appellant is the step father to the victim. It is the mother. o(;!he victim one Mwanahamisi Ayubu who _testified·-as PW2, th~t ~be left her child home on 23 rd September 2017 white she ...went to run ,lier errands. She .- testified that she.· came back home early -and found her husband (the· Appellant herein) standing outside the door of her daughter's room, blocki[lg her from entering the room. She then went to fetch water, and then she came back she took her daughter for Friday prayers at the mosque. When they . returned from Friday prayers, .s)].e ask~d her daughter to go 2 "ORIGINAL" back to school. ·Her daughter, the victim tofcr her she could not go to school since she was sick. She said on the same day at night around 20.00 hrs. the victim told her mother (PW2) that the Appellant had raped h-~r. She said she confronted her j":'"..,:.. • ::.. . husbahd (the _Appellant_ he~~in);-the ·,t\.ppellaRt confessed. She said she reported to · the ·Ward -c·ouncilor o~ 24 th September 2016, and the victim was taken fo hospital for checkup on 24 th ¥September 2017. The Doctor's _Report found no bruises on the victim but the doctor reported that the victim's hymen was not intact. She concluded that the girl mJght .have been raped. -- - PW2 · stated that she repQrted _the matter to police on D~cember 2016, three months later._ The prosecution brought~the victim as PWl who testified . -. that she was raped by the ~ppellant, PW2, the mother of the victim said; she was told by her daughter that her step father had raped her. The Doctor, PW4 made a suggestion that since the victim's hymen is broken, she:-gave a probable suggestion that the· cause of the victim's hymen to break could be that she was raped. 3 "ORIGINAL" The District Magistrate convicted and sentenced the appellant to 30 years imprisonment for the offence of Rape. The Appellant was aggrieved by the conviction and sentence passed against him, -he filed an appeal ra~~irig\~o grounds of . appeal. The Stat~ . was r~presente-d by Ms. Mgoma who countered an grounds of Appeal.'"On~"fhe first ground of appeal • • ~ 0 • ., C • . - -~ . ·- that the decree was defective, I 8:gree with Ms. Mgoma that the . charge was not defective as the _law cited was correct and the - ... particulars of the <?ffence were all clear. I shall decide this appeal on ground No. 2 and g;~ound No. 9-of the grounds of ,., .... -:c-- Appeal, that , _the prosecution G?-Se was weak and that the prosecution failed to discharge· their liability of proving the offence beyond reasonable doubt. It is on record that th<:( vi~tim PWl was examined by the Doctor who gave report {PF3). On the -Medical Report, PW4 .who was Dr Grace Ismail Kishihdo gave- her testimony in . ~ .~ court. The Doctor did not state per--qualifj.cation. At page 14 of the proceedings Dr... Grace sim.ply stated "I am the Medical - Doctor at Ilongero Health Cent~_~" and that she has worked at 4 "ORIGINAL" that Health Centre for 10 years. She did not state if she is a qualified Doctor ·or simply a Nurse or a _lyledical Assistant. •,· ;;i. According to the testimony of ·the Medica(L)octor, - - ,-- the girl's hymen was broken btif there were no bruises and this --- concluded that the girl wa,s. not a virgin, and that she might have had an intercourse. She did not say if she found sperms. Neither the Medical _rep~)It nor the testimony of the Medical Docto·r had· stated the fi~~~of whi~h the girl was examined by the doctor. The Doctor's Report did-hot reveal that there was ·fresh semen found in the girl,'s yagina. To constitute the offence of rap'?_ it is necessary that there .. _.., . .,,.,. should be penetration of penis and if there was emission of semen, it is crucial to state in~the report that the semen found in the girls' vagina was that of tlie appe_llant._ In this case, the . . . -- ' - . .- ~-- ·. -.:,,.;,,: ..,... . ..,.,..-~ medical- officer did not mention irr~er report as well as in her oral testimony the time she ha_si examin~d the girl. She did not write in her report that there was semen found in the girl's - - - vagina, and she did not state if there was any semen or blood , .~w ,.., -- found, the blood or semen Irl_atched that of the appellant. The 5 "ORIGINAL" report of the doctor should have stated what she has found, and whether she found the semen matching with that of the Appellant, but should not give her opinion that rape had been ···•·~ committed. Rape is crime and not a medical condition. Rape is a legal term and · not a diagnosis to be made by the medical . officer treating. tne victinL '.fhe-o~ly statement that can be - .··.. ,:,.,.... . ·.. - made by ,the medical officer ls that. there is- evidence of recent sexual activity; ar1d in the docJp1;{s report, this was not stated. -- The burden to prove that th~ ;ccused had raped the girl child was on the prosecution. Suspicion, however, strong cannot take the place oL the proof beyond reasonable doubt. Neither is .there any medical evidence nor ariy oral evidence that . the . girl child .was:i-apeci . ... by~:thf ···- ;ccusea/;ppellant. - There was no fresh Semen or sperms found on the girl's vagina. There is no sufficient evidence given to prove the allegations made against the appellant. Further, there was no proof that the appellant subjected the victim (PW.,.1) to sexual inter:cottirse ~:Y inserting his male organ into her·=private parts (vagina)-.. No one has seen the 6 "ORIGINAL" Appellant doing that. The child being of only 9 years old if she was really raped, she could have cried or made noise, but she did not. She was able to get up and went to the mosque for Friday prayers. The mother .r~m.ajned silent for three months before reporting the incident to the police. In the present case, on a cumulative reading an_d qppreciation of the entire -. ·- evidence ori ~ecord, I .am ··of ·the ~-c-6nsidered view that the learned Trial Magistrate had fallen-in error of law. It is trite law that the prosecution must prove its case beyond any .. reasonable doubt. There -~re . a·=:Jet- -of unexplained gaps in between the evidence of PW2 atrel.:on the entire evidence by the . . ' ' . prosecution. The evidence-of the ·prosecution was very weak. The case of the prosecution, thus, suffers from proven · improbabilities, infirmities, con.tr~9-ictions and the statement and evidence· of the witnesses, in particular PW2, is not reliable and worthy of cretl~nce. PW-~ did not state how many children she has, and on the date of the incident who else was present at the house apart forii the Appellant and the victim. There was· no .evidence at all proving that the Appellant had committed the offence. It is the duty of the prosecution to 7 "ORIGINAL" prove the offence beyond reasonable doubt. This duty was not discharged. Beyond Reasonable Doubt, is the standard that must be met by the prosecution's evidence in a criminal prosecution: that no other -logical ·explanation can be derived from the f a.cts except that Lfre def<ifridant committed the crime, thereby overcoming the presu1npti.9-n that a person is innocent until proven guilty_. .. - a-• Beyond ·a· reasonable doubt ·is the highest ·standard of proof that must be met in any trial. ·· The . -.- ' main reason that the high .. . ··- . proof standard of reasonable doubt is used in criminal trials is that - such proceedings can result ""in the deprivation of a Appellant's liberty. Consequently, and based on the above,~this appeal has merit and is allowed; the convictio°:. is quashed and the sentence is set aside. The Appellant is ordered to be released --- ·-::-... . ·from prisonunless he i s : ~ ~ : ~ l l y ~~lei, JUDGE 22 nd DECEMBER 2017 8 . ·--' ....- : . --~"'"-- "ORIGINAL;' Judgement delivered in Court today in the presence of the Appellant, Sara!"a, St~te Attorney for the Respondent Republic and Mr C .A. Chali the Court Clerk .....-·· . _.,.,... .. -- ,,, .. ,~~--·:·!'.!"'.'~- -- - _;._,;. __,.....,- .•.,i... 9 -- . -- ... -:·.-~,;_ :··•·•~i·,:'~::