20100319 TZCA Tanga

IN THE COURT OF APPE , L OF TANZAN I A 1 ATTAN~A I I . . (CORAM: MUNUO, J.A., MSOFFE, l.A.,And KIMARO,J.A.) CRIMINAL APPEAL~ NO.138 OF 2obg ·

I I APPELLANT SA.ID HUSSEIN ...................................................... . · fl

VERSUS 'I THE REPUBLIC .............................................. ,...... ·RESPONDENT . . I I (Appeal from the Judgment oj the High Court bf Tanzania at Taiga) (TeemlJa, J.) 11 dated 1th Deoember, 2008 . .~ mi Criminal Appeal No.27 of 2007 ············1 ········ JUDGMENT Of THE COURT I, 16th & 22nd March, 2010 KIMARO, J.A.: The appellant was, in the Distri ,t Court of Pan~ani at Pangani, · :I I · arraigned for rape ·contrary to section 13 0 of the Penal Gode CAP. 16 R.E. . 1 I 2002. He was alleged to have carnally known one ReHema Juma, a girl . : I aged 12 years on 11th October, 2005 at about 15.00 hours.· He was . I convicted and sentenced to suffer a terhi of thirty yea~s imprisonment. ~ ! Being aggrieved by the conviction and t+ sentence, the /appellant lodged i, II an appeal in the High Court of Tanzania a~ Tanga but he lqst the appeal. i i ; ! Still aggrieved, he has filed a second appeal to the C9urt. , I: . : I: I i The complainant Rehema Juma testified as PW1. H~r testimony was , I ,- : I that she was a pupil at Funguni Primary $chool. On 11th !October 2005 at 11 I I I r 1.00 p.m she was walking home from scthool along Pangani Tanga Road.

I I I At Muhembo area, two people emerged, ieach holding a 'ipanga", and she I ,

II I identified the accused as being one of th~m. She knew him before by the I i name of Said Hussein. She was scared a~d shouted for h$1p. However, the 11 i ' I I appellant and his colleague caught her! mouth and prevented her from '

I

I I I ' shouting. Then the appellant pulled off jher underpants fnd had his penis penetrate her vagina while the other Rerson assisted ~he appellant by . r : : I . holding the complainant's legs apart. This ordeal came ~o an end when a I i motor vehicle coming from Tanga directit stopped at thJ scene of crime. I . i I The motor vehicle had two people iho carried Pw1!to a certain shop ·• ! and told her to report the matter to thJ police station. ishe reported the 11 , incident to the police station where shJ was taken to hospitai and was r I 2 :i , admitted for treatment for one day. ; In cross- exjmination of the I I 1 complainant, the appellant wanted to knrw how PWl wa,s able to identify him. PWl said she knew him before by name, as he was I a villager of ,1 Kimang'a village where PWl used to sJ him, and shJ also mentioned I j, I his name to the police, immediately she\eported the matter. She said it was the appellant himself who informed Jer his name whJn she met him at ;j ! i a hotel at Kimang'a where her sister in la~ was working. :\ ·I ! . Phillipa Julias (PW3) was the doctor who treated PW1 at the hospital . :I: where she was admitted. His medical fipding was that PW1 had bruises :i , 11 and blood stains in the upper and outer part of the vagin. . The inner part ! . I was also affected and the hymen was nl1ptured. He als0 noted that PW1 was forcibly penetrated. Further

observltion was that Pil1 waS crying in agony and it was not possible to use othJ medical instru ents to carry out thorough investigation. PW3 said PWl I had external aJd internal genital injury and she was bleeding and cried bei;ause of severe lain. ' :1, I' .,') After the appellant was arrested, f?W1 was summoned at the police I: I station to identify the appellant and she easily identifietl him. It was at 1 that time she knew that the appellant h~d other names of Saidi Omari @ I . Marasta. 3 I The appellant raised the defence of alibi without giving any notice under section 194 (4) of the Criminal Pro~edure Act, CAP 20 R.E.2002 and that the trial court seemed to have ignored it. The appellant was convicted I and his appeal to the High Court was dismissed. The appellant filed eight grounds of appeal and at the time of the hearing the appeal he added another one. All the grounds can safely be I reduced into four grounds. In the first ground the appellant's complaint is that the prosecution did not prove the case on the standard required. His second ground is on his identification in that he was not properly identified. ! The complaint in the third ground is that the ingredients of the offence of rape were not established and lastly is that the evidence of the complainant was not corroborated. Before us the appellant was not represented. He appeared in I person. The respondent

Republic was represented by Mr. Tumaini Kweka, learned State Attorney. In arguing th~ appeal the appellant was more comfortable to respond to his grounds of appeal after hearing the views of I the learned State Attorney for the respondent Republic. 4 I The learned State Attorney supported the conviction but not the sentence. Starting with the ground on identification, the learned State Attorney said that there was no mistaken identity of the appellant because PW1 knew him very well before the commission of the offence and she mentioned his name to the police when she reported the horrifying incident. The appellant generally had nothing useful to add to his grounds of appeal. The evidence of PW1 was straight forward. The identifying circumstances were favourable for a correct identification. She said she knew the appellant by name before the incident and it was the appellant himself who told her his name. She used to see him at Kimang'a village. PW1 even mentioned the name of the appellant to the police, immediately she reported the incident. Moreover, the incident took place in broad daylight, at around 1.00 p.m. where there was more than sufficient light to enable the complainant identify the appellant. See the case of Waziri Amani Vs R [1980] T.L.R.250. This ground has no merit. , Regarding the ground on the ingredients of the offence, the learned State Attorney said in terms

of section 130(4) (a) of the Penal Code, the offence of rape is proved by penetration of the penis into the vagina. If 5 I the victim of the sexual abuse is above eighteen years, consent is another ingredient which must be proved. For a victim who is under eighteen years consent is irrelevant. Mr. Tumaini said in this case the ingredients of the offence were proved by the evidence of PW1 and PW3 as well as the PF3 form which was admitted in court as exhibit Pl. On his part the appellant said that the PF3 form was evidence to prove that rape was committed but it did not prove that he was the one who committed the offence. On our part, we agree with the learned State Attorney that the ingredients of the offence of rape were proved. PW1 said that the appellant forcibly put his penis into her vagina. PW3, the doctor, corroborated her evidence. He noted that, PW1 was forcibly penetrated. PW1 was under the age of 18 years so the question of consent was irrelevant. It is true that evidence of the PF3 form assists only in ascertaining whether rape was committed but not who committed the offence. This ground as well has no merit. As regards the ground on whether the offence was proved beyond · reasonable doubt the learned State Attorney said that the totality of the evidence on record proved that the offence was proved beyond doubt. He said the courts below were satisfied with the

demeanour of the witnesses 6 and therefore there is no justification for the Court to ir:1terfere with the concurrent findings of the courts below.· As for the complaint that the evidence of PW1 was not corroborated, the learned State Attorney said section 127(7) of the Evidence Act allows the court to convict on the sole evidence of the victim of the sexual abuse. The learned State Attorney ' said in this case the situation is different because the evidence of PW1 is corroborated by the evidence of the doctor and the PF 3 form which confirms that rape was committed. In the trial court, Rehema Juma, the complainant testified as PWL Since she was aged 13 years "voire dire" examination had to be conducted in compliance with section 127(2) of the Law of Evidence Act Cap, 6, R.E.2002. The record of appeal at page, 8 shows that the trial magistrate did not comply fully with the procedure for conducting "voire dire" examination. The trial magistrate did not record the questions which were put to the witness. He recorded the answers only. That was improper. I The question and answer session must be recorded. The said section provides: "Section 127(2) Where in a criminal cause I or matter a child of tender age called as a 7 I l I Ii I I 'I witness does not, in the opinioh of the court, understand the nature of oath) the evidence may ·' be received though not given 0n oath,

or 1 :1 affirmation, if in the opinion ofi the court, whic , ' ! opinion must be recorded in t~e proceedings, t ' .[ is possessed of sufficient intelljgence to justify reception of his evidence, and understands the ,I duty of speaking the truth." We entirely agree with the learnedlState Attorney jhat the evidence of the complainant was corroborated o_ y that of PW3 the doctor who I. j, I . 1 examined her. As indicated above, PW1 confirmed thatj the complainant was sexually abused and she cried ih agony as he examined her. :1 I Considering the totality of the evidence dn record, the p~osecution proved ': [1 1 ,I I the case beyond doubt and there is po reason for faulting the first :,1 j I . appellate court for upholding findings o:f the trial court;, The appeal is devoid of merit. It is dismissed in entireJ. I 8 I Ii 1i On the sentence, the learned State Attorney said that the evidence of i:1 I . .• I PWl shows that when the appellant cojmitted the off~nce he was with another person who assisted him. The appellant sjould have been i sentenced in accordance with section 131A (1) which provides for life I ,I imprisonment as punishment for gang rJpe. He urged s to exercise our power of revision and enhance the senlence to life im~risonment The I i' section reads: '' I i' :iiI "Where the offence of r~pe is committed by I: i I one or more persons in rgroup of persorsI I :ii I each

person in the grou,p committing or ~betting , I . ., the commission of the o~ence is deemeJ to have I committed gang rape." . i Reading through the said provision) for a person tmI be convicted ,I . for the offence of gang rape, he must be ch~rged with the ~ffence. Although I I the evidence shows that the appellant w~'s with another person abeting the 'I I . I _, commission of the offence, that person vJas not arrested ~nd charged._ For

I I I this reason, the appellant was proper!~ charged and sentenced for the I! 1 9 Iii ,[ I!· • offence of rape. However, section 131 (1) which provides for sentence of the offence of rape, also provides for corporal punishment and an order for compensation, in addition to imprisonment. The trial court neither imposed corporal punishment nor made an order for compensation. Using powers of revision under section 4(2) of the Appellate Jurisdiction Act, CAP 141 R.E. 2002 we order the appellant to suffer twelve strokes of the cane and order him to pay Rehema Juma, (PW1) the complainant, an amount of five hundred thousand shillings as compensation. It is accordingly ordered. DATED at TANGA this 19th day of March 2010. E.N.MUNUO

JUSTICE OF APPEAL J. H. MSOFFE

JUSTICE OF APPEAL N. P. KIMARO

JUSTICE OF APPEAL I certi tbat this is a true copy of the original. ~\ ~ ]) (N. N. CHUS:) . ~~j DEPUTY REGISTRAR 'I _____,/ "'_;;· ;;;:-_~ 10