20140716 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAAM (CORAM: RUTAKANGWA, J.A., LUANDA, J.A., And ORIYO, J.A.) CRIMINAL APPEAL NO. 158 OF 2010 SALUM SAIDI @ MWAKA ......................................... APPELLANT

VERSUS THE REP_UBLIC ........................................... ~ ......•... RESPO.NDENT {Appeal from decision of the High Court of Tanzania at Dar es Salaam) {Mushi, J.) Dated the 16th day of December, 2009 . In Criminal Appeal No. 79 of 2008: ~'JUDGMENT OF THE COURT · 2nd & 18th July, 2014 RUTAKANGWA, J.A.: On 19th January, 2005 at about 05.30 a.m., as Mwanaidi Yusufu was j . n . · proceeding to work, she saw a person standing in frontli.>f her. As that ; ,.j ,, · · ~; person was wh~lly clad in "khangas", she mistook that;_pjrson for a fellow) . ': ' . ' ~ ,:' . female. Whep she came to that person, they exchanged lgreetings and she· proceeded with her journey. All the same that person circumvented her by using another path and in no time was ahead of her. When she reached that person, she was ordered to sit down. That person, who was a total stranger to her, drew a· panga from the arm-pit.· I i . and as Mwanaidi bluntly put it, said that "she wanted/✓her "vagina'~ It's at I 1 - ' ,.'. that moment that she realized that the person was, after all, a man. She . , ..-l,l was then physically assaulted by being cut with the panga on her palm, left hand, head and back, and then threw her on the ground and allegedly carnally knew her against her wishes. After gratifying himself, the man left her wounded, but also taking with him her properties. However, while that man was ravishing

her, she did bite him on his left eye. Mwanaidi managed to walk on her own up to Kongowe police post where she reported the incident. As she was bleeding a lot, she was · rushed to Kongowe mission hospital .from where she went to report the matter- at Kil~a Road police station. The lone p~lice offi~er at the station -.could not give her much assistance apart from issuing he_r with a PF3. She then went home and narrated what had befell her to her neighbours, one Kongowe bus stand. The arrested man was surrendered at Kilwa police station, where D/Cpl. Pascas - recorded his cautioned statement in which the suspect unequivocally confessed to causing grievous bodily harm to Mwanaidi. He · was thereafter formally arraigned in the District Court of Temeke District· 2 ~ "-· (the trial court). That suspect was the appellant in this appeal,· Salum Saidi . @ Mwaka. In the trial court, the appellant faced two counts, namely Causing Grievous harm (1 st count) and Rape (2 nd count). He denied the charges · and a full trial ensued. At the appellant's trial, Mwanaidi testified as PWl and tendered the PF3 as exhibit PL MT. 6501 S/Sgt. Damian testified as PW2, -while D/Cpl. Pascas, who tendered in evidence the cautioned statement as exhibit P2, testified as PW3. The appellant denied the charges claiming to be a victim of mistaken identification. _· ' . . . . The trial court believed the evidence

of these three witnesses, which was found to prove the guilt of the appellant in both counts to the hilt. _It · accordingly convicted him as charged and sentenced him to concurrent jail , -c:: .•. . '.~: . '.~ . };~ntences of 5 years and 30 years t,~spectively. Aggfrieved by the ;~~<-~!: ,V .,, tt <t-' ~ ~ >' Jl :t -~' 1 L if,, )'. ' )i) ,;, - ct.nvictions and se~rences, he unsuccestully appealed to the High Court, 1 hence this second appeal. The appellant initially lodged a - memorandum of appeal containing eleven grounds of appeal; Subsequently, he lodged a supplementary memorandum listing another five grounds of appeal. After studying them, we have found the complaints· to boil down to these three major grounds, namely:- 3 One, the offence of rape was not adequately proved; Two, the cautioned statement was ''recorded by putting questions to the appellant who then answered them~' thereby violating "the mandatory provisions of section 58 of the CPA Cap 20 R.£ 2002";. and Three, his trial was a nullity as his plea was not taken afresh before the trial commenced. ·· The -a_ppellant appeared before us in person to pro~ec~te his appe.al. ... . · He only adopted his grounds of appeal and opted to reserve his comments until after hearing the response of the respondent Republic . . The. respondent Republic was represented by Mr. Tumaini Kweka, ,. ,; , ·. ,,;i., le~r,hed .Senior State

Attorney assisted ' li\ by ~s. Cecilia Mkonongo and Ms. ,~!' -~ .. ' lil ;, lt~: r-·t :11~ I ,. · . ~ I~ .;i,_ ~- -~-= -~- - -·· ,.. Cecilia 'Shelly, both learned State Attormeys. However/ it was Ms. .!;,,.,, V: I ·~ ·) -~ t . ' . ~' 1 ·•< Mkonongo, who addressed us.· Ms. Mkonongo, did not support the appellant's convictions for rape but supported the conviction and sentence in respect of the charge of · causing grievous harm. In her strong submission, she impressed upon us that but for the appellant's confession found ·in the cautioned statement (exh. P2.),_she would have supported the appeal in its entirety. She was of. 4 ' ,.. this stance - because · the judgments of the two . courts below were, unarguably, premised on the ·identification evidence of PWl Mwanaidi, the · · confessional statement (exh. P2) and PWl Mwanaidi's _PF3 (exh. Pl). She stressed that stripped of exh. P2, the prosecution evidence going to implicate the appellant with any offence is glaringly lacking in cogency as it is mostly conjectural as pointed out by the appellant in ground four of his supplementary memorandum of appeal. She so contended on aq:ount of . the naked fact that the alleged offences were committed under the cover of darkness,. the appellant, who was not arrested at the·:scene of the crime, was a stranger to PW1 Mwanaidi, and worse ' still ·no iota of evidence was proffered to prove that

the injury ·observed on the appellant's eye was caused by teeth bite. She went on. to stress that even i ~ 11 J . . i the:fil?F3 ( exh. Pl) casts genuine doubts o.n the claims of PWl OOwanaidi, :~ . . l' ~r:'. f: . \ ,~ be;use it is evident thatrit was issued to ¾~if on the materiafrdi,y on the _ ~H · ·- · ~i:.:: -~1 =1} · bas~ of having sustained cut wounds and nothing more.. l - .· \1\/ith these facts on record, Ms. Mkonongo concluded asserting that the claim of being raped might have been an afterthqught .and, contrary . to the holding of the two courts below, the appella.nt. never in law confessed to· have raped PWl Mwanaidi although he confessed the offence of causing grievous harm. All the same, she urged us to dismiss the · 5 ~ appellant's complaint that his trial was a nullity because as the pleas of the ........ ~ appellant were taken on 25/1/2005 and 20/4/2005, there was no need to take the accused person's pleas again before the trial commenced. She accordingly urged us to quash the conviction for rape and set aside the prison sentence of 30 years, but dismiss the appeal against conviction -and sentence in relation to the first count. The appellant, surprisingly, had nothing to say in response. In disposing of this appeal, we shall begin by resolving the issue as ·'. to whether Oi not the appellant's trial was a nullity on account of the ... - reason cited by him.

Having perused the trial court's record of proceedings · we have found ourselves in agreement with Ms. Mkonongo's position -because the pleas of the. appellant were taken before the formal hearing . .. . t . ? t /'. f, .: began)\ We accordingly dismiss this particulaqground of a~·peal. :!: · ii . t~egarding th~~ cautioned , (ex~·.1P2), it is iGlear th~tI indeed .Jf ~-. statement .;,. . . ~· . .~f : .. . . ;' it :was taken in the form of an interview, as the appellant is correctly asserting, and under section 57(2) of the C.P.A. So the issue of violating the provisions of s. 58 of the C.P.A. does not arise here. We also dismiss· this particular ground of appeal. This notwithstanding it behoves us to go further and observe that although the appellant was cautioned under s. 6 ' ', · 53(b) of the CPA, in relation to the offence of causing grievous harm, he was not so cautioned regarding the offence of rape. The caution administered by PW3 Pascas appears thus in exh. P2:- "ONYO: Mimi ni Askari namba D 147 D/Cpl. Pascas. Nakuonya wewe SALUM s/o SAIDI @ MWAKA kuwa unashitakiwa kwa kosa la KUJERUHI ambalo ni kosa chini ya k1fungu cha 225 SURA 16 KANUNI · YA ADHABU. Hulazimishwi kusema lo/ate ila kwa hiari :yako/ na lo/ate utakalosema basi litaandikwa na - .. ·; .Jinaweza . kutumika kama ushahidl dhidi. .. yako/ kumwita wakili wako/ ndugu yako wakati maelezo :yako yanaandikwa. R/0

D/Cp/. Pascas. JIBU: MIMI SALUM SAID;@MWAKA nimeonywa na·· Askari rnwenye namba D147 D/Cp/ kuwa nimeshitakiwa. kwa kosa ·1a KUJERUHI -ambalo nl kosa chini;ya . ' ~~~- /; -1~ kifungu cha 22,? SURA 16 Kjfi.NUN~:i',YA ADHABU};na ;f'. J ~ m ~ I t kwamba · silazimishwi kuselna nenb lo!ote ila R.wa ·f · !t ? ~: it 1 'f hiari yangu... " :: .t: , Section 53 (b) of the CPA provides thus: " 53. When a person is under restraint a police officer shall not ask him any questions or ask him to do anything for a purpose connected with the investigation of an offence unless (a) ... not relevant ... . 7 -, (b) the person has been informed by the police officer, in a language in which .he is fluent in . writing and, if practicable orally, of the fact that he is under restraint and of the offence in respect of which he is under restraint; and (c).. not relevant ... // [ Emphasis is ours] . . From the above extracts it is clear that the appellant was never informed by PW3 Cpl. Pascas that he was under restraint for committing · ,_ -: .- . · the offence of rape in addition that of causing grievous harm. He could, accordingly, not lawfully question him on having raped PW1 Mwanaidi. We take it to be settled law that even if the appellant h~d. unequivocally .. confessed to raping PW1 Mwanaidi which he did not, such · a confession ' ) wquld not1have been taken :ttnto account against him an account of

this •J L fa~, <: omission. t } ·: . ~ .I ; ·;;,. ;r' !_:,\_ ~ •,~: •·;; ~\ As we· have already shown in this judgment, one of the major grievances of the appellant ls that the charge of rape was not proved, and the respondent Republic agrees with him. In convicting the appellant in the. · second count, the two courts below relied exclusively on the assertion of PW1 Mwanaidi and exh. P2. We have learnt from our study· of exh. P2, that the appellant never confessed raping PW1 Mwanaidi.. All that he said 8 therein was that he seduced PWl Mwanaidi and when she rebuffed him, he cut her with a panga and hurriedly left the scene and went home. At another point he stated that he could not· recollect sexually assaulting PW1 Mwanaidi as he was drunk by then. These assertions in our considered opinion cannot, by any stretch of imagination, be taken to amount to a confession of rape. It is clear to us, therefore, that the two courts, below, erred in law and fact in failing to appreciate the nature and quality of the cautionedstatement (exh.P2). This statement, as far as the charge of rape was concerned, was not evidence in .law at all against .the · appellant. With exh. P2 out of the way, we are left with the evidence of · PWl Mwanaidi. Like Ms. Mkonongo, we have found nothing of value 1n th~ evidence ~ i A .l f ·:· of PWl Mw~naidi 1 to conyince ,,6s that she ~as ra~~d by her ~~sailant

at !·' · ij :'si.i t,~ jr, ·if( ·;;!; :°l'" '.'f ;;J; "· ~,. .': f.;;r: ~ ~-· if. .;)J :~~ :& dawQ on 19(01/2005. H;ad this}been the care, sh~)could not h~ve. faJ~ed · ~ ; ! :r .F }. . , to include this offence in her first report to the pol-ice .. That-this was not done is proved firstly, by the PF3 (exh. Pl) which does not mention · the offence of rape at all. Secondly, by the evidence of PW4 No. D9330 . DjCpl. Mathew who was the· police investigator. . PW4 Cpl. Mathew testified that he was only told by the complainant "that there were clothes which had been picked up at the scene of the crime." Neither PW3 D/Cpl. 9 Pascas nor PW4 D/Cpl. Mathew gave any evidence linking the appellant with the . offence of rape. Thirdly, by the naked fact that when first arraigned on 25/1/2005, the. appellant was facing one charge of causing grievous bodily harm. The charge of rape was added on 20/4/2005, three · months after the incident. It seems to us, therefore, that the issue of rape·· was the complainant's own imagination. That PW1 Mwanaidi had a penchant for. embellishment, is demonstrated by the complainant's berated allegations, while testifying, that the appellant. not only raped and grievously harmed her but also robbed her. ·of her ~'property" or "articles" which she never described. She did not even mention this robbery to PW2 S/Sgt. Edward, !eave alone the police. That being t~e

. . case, the appellant stands to gain or benefit from these genuine doubts on the truthfulness of PW1 Mwanaidi's evidence. ( t ,;:; ,~: ·t. .. . I1 ~j ,L ~t,-, l1 ~ J· I . ;i,:, . t, ·i . .iJi l The app,eal against the con.viction. for ca,~sing g'rievous harm shoul_cl . ! 1 i ;1:• . t ., r not detain us at all.• There is no gainsaying that' PWl Mwanaidi was grievously harmed. This is proved by the PF3 and exh. P2, which corroborated the evidence of PW1 Mwanaidi. It is exh. P2, which places the appellant at the scene of the crime and impeccably identifies him as the assailant. We accordingly ·find no good reason for differing with the concurrent findings of fact by the tvvo courts· below that it was the 10 ,. · •,, appellant, who without any justification, inflicted the ''multiple cut and prick wounds," amounting the "dangerous harm'; on PW1~.Mwanaidi. All said and done, we dismiss the appeal against conviction for causing grievous harm and the sentence imposed thereon. However, w_e quash the conviction for rape and the thirty-year prison· sentence and set theni aside. As the appellant has already served the full term of the sentence on the first count, we order for his immediate release from prison unless he is otherwise lawfully held. DATED at DAR ES SALAAM this 16th day of July, 2014. E. M. K.RUTAKANGWA . JUSTICE OF APPEAL '. 1.1. B. M. LUANDA ~ J JUSTICE OF APPEALf !~ ~ ;ik ·11!I ', w; .::f' K. K. ORIYO f r JUSTICltOF APPEAL '·,., ' I certify that this is"< true copy of the original. / .A. M ,LEW

DE UTY REGISTRA cduRT OF APEPAL 11