20111126 TZCA Arusha

't .\ f .•·~ "". .l ',,I 1 \' I 1 \ IN THE COURT OF APPEAL-OF TANZANIA AT AR.USHA {CORAM: RUTAKANGWA. J.A.• LUAN:DA, J.A. And ORIYO, J.A.) ,,, \ CRIMINAL APPEAL NO. 3 OF 2009 I . \ \ SANING O MESHUKI MOLLEL .............. ;........................................ APPELLANT VERSUS I . THE REPUBUC .............................: !:. 1•.Ji .., 4;................... J............ RESPON DE NT - - I - \) {Appeal from the Judgment the High Court of Tanzania qf at Moshi} ,, 1: {Ruga~ia. J.) \ ,, Dated the 11th day bf November, 2008 {DC) Criminal App~al No. 8 of 2005 i~ I --':"----1------ . '.of. i'~ '. I JUDGMENT o~·,. THE COURT ;, 16th & 28th November, 2011 ,_. LUANDA. J.A~: '.: :;-,'. --,, A· I -i'. I - - The appellant one SANING'O M~SHUKI MOLLEL\ was charged with rape contrary to "sections l3D and 1~1 of the Penal ode, Cap 16 R.E. f 2002." We put the inveted commas I because both ~ections contain a number of subsections which were ~ot cited. The Lbsectiohs create ' i, \ offences showing circumstances un~er which such offences were " 'I l committed and the relevant sent:nce: ~ught to be imp~sed. We strongly urge the courts below, in future, to ihdicate in the Jharge sheets the I,, ,, 1 1 ,1, ' . I I :i iI 1 I : I i I i; ; I relevant subsections so that the: accused understands clearly what : : I i offence(s) he is facing and the expected sentences. l i ' I J . I

I I I 'I I ', I , ,,, 1 Ij , i I:, I In this case that was not qpne: We don't think that failure to do so ;: I ; l I had occasioned any injustice. We ~re saying so · because the appellant :: !I cross-examined the witnesses and g) e his evidence. He knew the charge ii '. l laid at his door. II I 'i :i 1, I. \ ' Be that as it may, the trial District Court was satisfied that the prosecution had proved the case to tr :I standard req11ired. It accordingly I' '' Ii convicted the appellant as charged •~nd sentenced tm to thirty years / I , I 'I I I/ imprisonment. . I \ ..t :'' ' , I : I : i ; I I 1 I Ii I I Aggrieved, the appellant appeale; to High Court of Tanzania, Moshi · . .:, ,, ..:; ... .,I r, ' ' . 11 ,I _, . '~ 'I I Registry, where he was not succ:essfiuL Dissatisfied, he preferred this '' ; '' '' '' appeal to this Court. The appellant has raised four grO:rds in his memolrandum of appeal. I, \ 1I Essentially the grounds of appeal raised;can be condensed into two groups l f '' il ',' I '!I I . ! ' . 2 I 1: II 'I :' 'I I' ,1 namely, evidence and procedure. As to evidence, the total sum is to the effect that the prosecution did not prove its case beyond reasonable doubt. As regards to procedure, the appellant complained that the entire evidence I I at the trial was not taken in camera as per the dictates of Section 186 (3) of the Criminal Procedure Act, Cap. 20 R.E 2002 (the

Act). At the hearing of the appeal, the ·appellant appeared in person. The respondent Republic was represented by Ms. Javelin Rugaihuruza, learned State Attorney. Ms. Rugaihuruza did not support the appeal and prayed that the appeal be dismissed. Before we go into the merit§ or otherwise of the appeal, we think it is helpful to give a historical background that led to the appellant's conviction. Indeed most of the fa,cts in this as found by courts below are '' not in dispute. The dispute centres/' in our view, on whether the ' complainant was raped; if so by whom. We don't think failure to comply with s. 186 (3) of the Act vitiates the proceedings. We shall explain later on in this judgment. 3 I \ .,:_ i ·. ? I 'I' : The undisputed facts as founq out by the co~rts below were that 1. ' I · i Marget Kiwelu (PW2), who is married to Edward Kiw¢1u, a brother to Rose Kiwelu (PWl) the victim of rape, operated a grocery! at Majengo Old Bus I i Stand. The said grocery was run b/ Rose (PWl) her sister in law. PWl, I \ I . I I , PW2 and Edward Kiwelu were living1 at Rau, a few ;kilometers from the · I I {Pi / .1.. : \ grocery. PWl normally opened the igrocery in the imorning and closed ', I around 10:00 p.m. - 11:00 p.m. yvhen she clos~d the grocery, the ' . ,I i appellant who was employed by, PW~: a.sl watchman to guard the grocery ; > I I ,; ' 1 1 ·: i escorted her to Rau on payment of

T$hs. 300/= whic~ he was paid daily. · I i i . : Over and above that he was also giv~n food and on ~ompletion he went " I I 1 back to the grocery to guard. · \. I '\ !1 ! i j, On the fateful day i.e 19/7/-2002~ PWl opened tfue grocery as usual ;· i I . -'illt 5.. , ' . :I and closed around 11:00 p.m. and t~e appellant es~orted her towards '! I home. Alas! On the way, according to PWl, the app¢llant knocked her i' \ down, he grabbed her neck and told 11 herzthat he was go',ng to rape her. He I':·,' ordered her not to raise any alarm 'est she be kill~d. The appellant,

I I I according to PWl forced his penis in her vagina. She said the appellant did '! i. ' ' '~ i it thrice and in the process Tshs. 35,000/= the day's sa 1e and keys of the 1 1: I . 'I I !l 4 • I grocery got lost. While this incid~rit was happening, PW2 was at home worried as to what had befallen PWl. According to PW2 around 03:00 hrs (20/7/2002) PW1 returned home and saw PW1 was soiled, blood was coming from her neck and she could I talk with difficulty, while trembli~p an~ crying. PW1 narrated the story to . ·,i PW2. Edward Kiwelu was awakened, he was also told the saga. The three went to Majengo police station where they reported. In company with PC /1 I ,, , Zephrini (PW3) they first went~it<:rthSJ grocery. The grocery was wide opened; there was nobody and a number of items which were for sale were missing. Through police efforts, the appellant was arrested in unofficial guest house. The appellant is said to have admitted to steal from I an the grocery but denied raping PW1, though he had love affairs with her on four previous occasions. ,. ,'J· The appellant denied to have raped PW1 on that day. He said on the fateful day he reported for duty a§ .iusual1( He met PW1 with a certain youth drinking beer. He was offered a soft drink by that youth.· Then that youth told him that he had agreed with PW1 to have love affair. Around 9:00 5 1, i, I'I p.m. on the instructions of that

.yql)thl ,.,., I · · the grocery wa~ closed and the trio I •. ·11·, . •. . r:i_ left towards the homestead of PW1. ~t a juncture, the appellant left the I , duo and returned to the grocery. He guarded the grocery till 6:00 a.m. when he went to Kilimanjaro Hotel tJ take a nap. Arilund 07:00 a.m. he was arrested and queried about ha~ing raped PWl and stealing. He !I 11 ,, denied. , I ,i I 11 ~ I\ 11 11 I We wish first to deal with the\ question of nqn compliance with 1,1 section 186 (3) of the Act. ,.'!.:;" 1,!I ~=; ·!11 :n\ . I :1 ', Ms. Rugaihuruza conceded to thaf ground that the trial court did not 11 I conduct the trial in camera. However, she was quick to point out that the omission is curable under Section 388 lf the Act. PWl Was free when she gave her evidence, she submitted .. Sectt 186 (3) reads,- •\ l 1: ,1 . I I! I "186 (3) Notwithstanding lithe provisions of any other law, the evic/e(lce ~fall persons in all trials involving sexua/. offences sha11 be I, II received by the Court In camera, and the 1\ 11 1: 11 6 evidence and witnesses involved in these proceedings shall no,tt:_qe. puqlished by or.... " ' t {J I,'· (Emphasis ours) The issue now is whether the word "shall" appearing ai::,ove is mandatory. In Bahati Makeja v. R.,, Criminal Appeal . No. 118 of 2006 (unreported) the Court (Full Bench) was convened to discuss and resolve ' whether the word "shall" appearing

in Section 293 (2) of the Act as it was interpreted by the Court (FulL,Court){in Melkized~ki Mkuta v. R., :. r:·:. Criminal Appeal No. 164 of 2005 (unreported) to be mandatory was correct. In Bahati case cited supra, the High Court learned judge appeared not to have addressed the accused person, who was facing a charge of murder, his rights of giving evidence and calling witnesses after the close of the prosecution case ,though his advocate stated how the accused (his client) would give his evidence and that they had no witness apart from the accused. The full Bench after revisiting a number of cases including Herman Henjewele ,. :R., ,Criminal Appeal· No. 164 of 2005 .. 1 1, ~ (unreported) was of the settled view that the word "shall" is not always 7 i i I \-1• ! . ~-~ ! I I , :. I mandatory; it depended on the circu~stances of each flse. The Court then ' I iI resolved whether such omission is Clllrable under sedtion 388 of the Act. . .. I ,'{d. :+, I, ,'\ i I The court said:.:. ·•· ·. i i;,• I· 1 _i I I: I \, "There are a number or\ innocuous omilions in 11 I I\ , trials so if the word 'Sha'{" is every time f\ken to be imperative then ~any proceedings and I I decisions will be nullified , ~nd I . reversed. L1¼e have 1 no flicker of doubt in our 'minds that the ~riminal 1 i I 1 I law system would be. utte~ly crippled without the I I .. .j .,•.i .;, I .,. I 1ps. " •. protective provision Ofs. · 1 i I . !. I I I The Full Bench went on to say:- r I I'· I 1: I. ' • II I IiII I I "... the definition of the I word ''shall" ~o be . . , \· : imperative where a. function is imposed do~s . I not . i,, I apply to the Criminal Procedure Act in vie'4t of s. I I 388 which subjects all mJndatory provisi!ns in ) w_·., ..../,• 111, , II ;.:, :' ·,1'I•'!• ' . I 11 . I I 8

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I I I i that Act to the test of whether or not injustice . r·'. has been occasioned. " I To put if diffently, the use of the,~,ord "$.hall" per se does not suggest that : :· . ~l{r 1 it is mandatory. In case the function imposed had been' performed contrary I 1 to the mandatory requirement, the test is whether the omission had , occasioned any injustice. In our case, it is true that, the Pr:oceedings wer~ not conducted in i camera. Ms. Rugaihuruza informed us that PWl was tree when she was testifying. In any case, she said the omi ssion is curable under s. 388 of the 1 I Act. We entirely agree with her. In actual fact they are :not complaining at ; I' . ,'~' all. On the other hand the appellant did not attempt to say whether ! failure to comply with section 186 (3) of the Act had occasioned any failure of justice on his part. So, in view of the above explanation and the ratio 't.!." I decidendi in Bahati Makeja case, we find this ground to have no merit. 1 ,;~ ! .:j,· . !~:,, 9 i i1' 11 We now turn to the main ground of appeal whether PWl was raped; 11 I' I if so by whom. :Ms. Rugaihuruza submih:ed I that the prosecution I had proved . .~ II . ' its case beyond reasonable doubt. She said there is evidence on the record l that PWl was raped. She said PWl explained how the appellant fell PWl down and raped her. Immediatel,y, aft~r.-the incident PWl informed PW2 11 1', ' . II ,. who in turn checked her and found bruises on th.e neck. It is her Ii

I JI contention that force was used. I' I' I 1, ' This is a second appeal. We are ~live to the well ,known principle of i law that generally this Court is -prehluded from interfering with the]I fl ·I' 11 concurrent findings of fact of lower cpurts unless it ls shown there is misdirection or non-direction then it ca~ interfere (see ,D.P.P. v. laffari 11 ]I , Mfaume Kawawa [1981] TLR l149; ' . Salum .ii•. Mhando v. ' R., [1983] TLR I' ]I 170). 1, ' 10

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I I I 11 I 1I I 1 i When convicting the appellant, the trial court saial:- 1\ I i, I II Ii1 I i i\ I "The only issue is whethbr it is the accused who .,: \I i had raped the complainci½t Accused ad,hit (sic) \I I that it was part of h.is : duty to escorri home 1 \ I 1 complainant after cl~e ofrork. He told 1 ttir court that he had escorted com\plainant half wky and I I left her with a certain youth he could not n~me or I I produce. Why should he left complainaht half i I way, abandoned his wage hr shs. 300/- an~ food iI I. if he was not culprit lo (sic}ottence. AccusJd was , \! I 1' found with keys of groc~ry and other ~to/en ! property from grocery. Thtf shows that affer he 11 had raped complain'l/1/he lent to grocery\ store I and he intend to go into hiding at Arusha ks he I I i told police at the time of !arrest If one }ieces \ : (sic) the evidence given 1by prosecution I and i \ march it against story of acdlsed it is crystal !clear • ,, , . \ II that accused committed this violence of ra'P'·e. I ' 11 I I \: I \I I \f I 11 1'. I \1, ! ',\ I .,!, ' ·I' .;J ~.,, 11 ,r' . i1I 1: I ·1:\ '!.' · ,11/ I

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I I I ',, I ,, I Ii find the case of rape ~gainst accused proved I, , beyond reasonable dou4t and he is accordingly ,, I I I' convicted " ' j 1, I: I I' I' I' 11 I' The first appellate court in upholding t~e finding of the trial court, it said:- ,, I I ' "The evidence as laid d~w~ibefore the court does ]I \I 11 not leave me with doubt that the appellant did indeed perpetrate the bbastly act. I fihd no I,, , 1, Ii reason to upset the trial aourt's verdict Which I l 1, ,, ,, uphold. " ',,1 I ' \ '\\• ,, ,, ' I, I' Having critically examined the evidence\ on the record,', we are far from 1\ I 1 I' ' being persuaded that the prosecution ha6 proved its case to the standard

II II required. We will demonstrate. .}: 1·/:': . ·11•tl\ • 'I ,, ,, , 11, 'I I I • 11 , Before we start re-evaluating the eyidence, it is not out of place to I' I , remind ourselves that in a criminal case, like this one, the, burden of proof 1, 1: I 12

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II I " I lies on the shoulders of the prosecution; and that the standard is beyond \ I :1 I any reasonable of doubt. i\ : \ I \\ I It is the evidence of PWl that ihen the appellart escorted her, she I ,' : ,1 . ! said, suddenly the appellant knocked 'er down, held ~er neck tightly tore 11 I \: I her pajamas and inserted his penis. The appellant did that three times. l I \! I 1\ I This is what she said:- ,1 \ 1 I \; I 'f; ': I , ,.. L~t I • , 1, • I :i I

II I ''Accused penetrated his p~nis in my vagiha. He l did the act three times by ,force. He then ~aid to I \ I me ''nenda ukamweleze mama yako." There is

I II I bush in area and there il,ino house of Aeople if ', I , I around Accused grabbed, ·,e tightly in the neck 1 1 I I 1 I while doing the act. I could\ not rescue my~elf. I

I I I Jost consciousness.,,,,; Wh:f I gained '(sic) consciousness accused had·vanished. " 1 I 1 I 1,\ I \ I . , \', I , I \! 1.1 I On reading the above passage, we are ofi the considered opinion that the 1 1 \I I information contained therein does not cdrne out clearly ~s to what really , 11 II \ I ,: I \ I 13 l I i~ . ' t,i I \ \ 1 I 1 '\ ~1 \ 1 I ,, Iii, I' 1i 'I , had taken place. Did the appellarit irse1 his penis in PWl's vagina thrice without more? What is its significance? Was PW1 trying to say the \ ' ', 1 11 I appellant ejaculated thrice? If so, \ did the appellant ejaculate thrice continuously without stop or break w~,ile holding PWl's neck tightly? If this \,, Ii ' I scenario is correct, then we think u~der the commo,n course of natural I , I , events as stated under s. 122 of She Etidence Act, Cap 6 which the courts below ought to have taken into co~'.sideration is th~t PWl's breathing,I, , 'I II~ I passage would have been blocked aspt appears, according to PWl, the raping took some considerable tim~ a~ could cause her death. Section \\ '· 122 of the Evidence Act, Cap. 6 R.E. 2oq2 reads:- , ",, :, ',i ,, ' "122. A court may infer th~ existence of any' fad ,, 11\ :: which it thinks likely to hare happened, regard being had to the tommof course of natural events, human conduct anb public and pr{vate I , business, in their relation 'to the fads of the Iii Perticular case. " ' t? :. : ' ·'..it:rt ':\ ',,1 We are unable to accept that story. 14 I t1 ',t, Also on the prosecution case is the stolry· of the lost ke}?s of the grocery and I I the arrest of the appellant. PW1, PW2 and PW3 differ Js to where the keys I were found. PW1 said thus:- I

I I I . . I "The locks were th;,own outside the shop with I keys." I

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I I I i' .• ., ~ ·,. ,,;. Ij PW2 gave two versions in her evidence if/-chief. She saidf·

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I I I "The locks were thrown outside the g/ocery I without keys. " I

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I I I Then she said the following:- Jl,i

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I I I ''Accused gave me the keys of locks were ill his . I I bag." I

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I I I i l 1 \ ,, 1\ ,, ,, I:\ \ 1(r"j :; 1,\ I PW3 on the other hand said as followb:- 1\

II II \\ ',\ ' ' ,.. · ' .: 'I 'l. ! "We went round the shop vv.e find keys tf?rown in ''Ndoo za maua." We cJsed the shop and went I ,1 ,, I back to police station. " ',\ ':i ',\ From the quoted passages, who among the three is saying the truth? Further the information leading to the brrest of the appellant leaves much I , to be desired. PW3 said, we reproduce:1 11,\ 11\ ,1 ''Before going to hiJ;pitat~J, was told thcJt the • 'I : I I watchman had been /Jrought by another \ ',, watchman we went old ¼.N.CU. We met the I , 11\ had brought Ithe suspect. ', This ':I watchman 'I ', watchman said he had not seen the sus.nect. '~ I ,., • , 'i! I ;('l !• . 1 1\ I The question is why not mentioned him ry his name the said watchman and summon him as a witness to ,corroborate I that story, , if it is true? . f't ) . 'i . ;'! . 11 ''1,, \ 111 ~. ,, ,, ,, ',\ I Ii 11: 16 ',, I I ,, I' I I Indeed that evidence is hearsay. !)Jot hnly that the alleged stolen properties which were recovered from the appell~nt . I were not tendered , in court. '11 , ',! Iii ,, 'I ' \1 ' Taking the evidence on thi pro~efaution side as: a whole, we are of the settled mind that the prosecution \case is highly improbable. In other words the prosecution witnesses were not credible at all. The defence case I\ ', might be true that PW1 had a love\ affair with that youth whom the appellant did not know. Having realizeql

that she was late to return home and she could not explain the !dE!lay;\' hence the fake story. With due respect to Ms. Rugaihuruza, we are una~le to go along with her. II ' 'i .· . ',I . In the event and for the stai:edr~SOns, we allow the appeal, quash the conviction and set aside the sentdnce. We order the appellant be released from prison forthwith unless hl is detained in connection with I I :11 another matter. ,1 Order accordingly. 17 ,I DATED at ARUSHA this 26th dJy of November, 11. I ~- r .. . \•, t/1. , l ' \/ />" ~ •I :I .I . E.M.K. RUT1 KANGWA :JUSTICE OF APPEAL i ' ' llI. ,·\· ,'f' B. M. LUANDA .JUSTICE APPEAL otl .I i I J :f K.K. OR1YO JUSTICE OF:IAPPEAL .! ~ !' _'ii . '') I certify that this is a true co'py ofthe original. , . ·~ M 'Z.A.~

EPUTY REGISTRAR : '.· ( : .,_: : ' ti'. :l : t; tI I I f I l' •I

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