19900831 TZHC Dar es Salaam

. -· ... IN TEE DI<TI: COTmT OF TAJ:JZANIA AT DAR ES SALAAM APPELLATE ~ISDIC'rIOH 77 'l..'Ji 1990 HIGH CO'Ulii1 CRJJUNAL f.PI·Ei~L UO • • ORIGINAL CRDIIE:..L CASE no ........ 4' OF 1990 Oli1 T.ITE DISTRICT C01Jlt'.I1 OF ICIB!i.IT!'. JIS-:1RIC1' :u.1 KIB!D.iA ' ... •· SEVERINO F,:~U:JTIN PAUL••••••••••• .APFELLiJfr VERSUS TEE UNIIJ.1ED REPUBLIC•. • • •. • • • •. • ., RESPOir.DENT . :... ~., .. \. ·JUDGME:i:JT After a full trial befpre the. District Court at Kibab.a the appellant was found guilty of unnatural offence c/s . • 154 of tL,e Penal ·Code; 1--e was acquitted of rape co11t:rary -l;o sections 130 and. 131 : ' of the Penal Code; and he was found [~uilty 9f the felony ·. ·. ~;rmed robbe1-y f..'..:.·. sections 285 and 286 of the Penal Code• ~ontrar:, ti .. L Re was subsequently convict eel of the off enceo clu,,rged in the first ·: ··•,·. and -~hird oounts and he was acquitted of the offsnce of rape with whi~;_. he was charged under the second coun-'v• .\t the ond of the clay he was sent. \ \ .. to the gaol to serve a. five yeax custodial sentence in respect of the f~st_ \ ·count and to serve a sentaaco of' thirty ( 30) yea.r3 iL"\prisonment· ·m re_spect of the third count 4 This appeal was lod.t;od to challenge thbse .. convictions and the sentences they attracted. . . . . .. · '. ·• The appellant·, one Severino Faustin Paul,- 3.lso kn.01-m by th~ name •, . •,. Bruce Lee, has lodged a.n appe,.11 containing nine -JJ!'O,unds which A can oonveniently be consolidated into tlr..'ee L12.jor areas. The fi.'rst ~0U11d i11c_ludes the first five paragraphs in the petition of ~-· -c •• t appeal, in which he attacks the witnasses' domeaJ:.ouor and reliab~lit1 of· . .: . ,. J I evidence• The second major ground relates to fa1,rication of evi4S'.lloc· ~- ·.• . , . ..,·.: against him due to an alleged grud5e against hira by the -complainant• ·... ~,, ,.:~-- This group~ is·· constitutGd by paxagraphs 6 to 8, inclusive• The thitd : 1': • • . _ ·• ✓- major eroui1d is lack of med.ioal,and expert cv:ide·,1ce• I will therefa. ,/' . ,• I· deal with this appeal in the o:rder-:0£ the th.re~ :Ja.jour gr<;nmds in the.~t··-:-' .· ' . . ~ . .'~.,1- of oral submissions made by the. appellant c:J.1d by learned cot.in.a:\~ ""a,. _ . ,' ~ . •. ,t ~ ., • -="·•· ,. ... .,. •:.,.,......... .:. ·: .:· ;:;:'/,.,:_::,;;.::;;:·)'.:·:_y,.~;_i.-.~,,~. '" .· --2 - represented tho Republic.- ' 'l'he appellant alleges in tho first r.1d11 c;r01md of appeal that the prosecution did not prove tl::oir 02-so as requirccl. in criminal trials and th:it all tho ovid.cnco for tho p1·osccution is unbclicvabie• Ho ar::suos that it coulcl not ;_10..vo boon possible for hin to ravish the cor.iplainant in tho open ;:snd b dcylie;frt wi·thout a-iitractin;s 1,eoplo. The appellant, however, clid 11o·i; c.1ddrcsc his mind on Jche first five grounds· when ho addrcosocJ. tho court. On tho other h,?.j,1d tlia-sKorosao, Lcn.:cncd 8ot.u1Sol ·who appeei.recl for the respondent Republic, clrcw tho attention of tl10 001.u·t to tho evidence of ·i;hc conplainant, ar:3\Ul10 thet that cviclo:.1~c is consistent, n.a\l i-l; is . corroborated by the ovido:100 of /i.sh::i, Or::ax:r (P1·T 2), tha,t of Selcma.n Abd.;1,llal1 (PW 3) mid -'chat of the Modic2.l ;"Bsista.nt ( P1'T 4) who cx::ni..."1.ed thcf complainan-'G within hours a:ctor tho :;'.1lc(.1ed rn111a.turd ca:rnal knowlo~o. Now wh2:i:; is tJ~.8 evidc:100 cind what a.re tho :Zin0.il'10 s cf -~110 trial cour~ on the issues which ;,.ro raisocl? ll.ccord.inc to Jchc establi:::ihccl tactrJ '!Jcfor-o -c:'.:lc, tric:i.l court, the incidor:.ts which Gn:ve rise to· the px-osocu-~ion oi -~ho appcllal1t oce,i.irred on tho aftornoo11 of 25th July, 19C9, i"Thile tho conplainant 1-ta.s returning home fro:1 hor shanba whore she I.lad. iono to get provisions for tho house. J~s oJ::w was ca.rryinc; her ca:::isava luc;.:;·a,eo on her head.1 while proceodinG hot10, alone, she no"ticocl sor:1cone approachi:nr; her from behind. ;lt the til:10 she was dressed in u blouse, underskirt and a piece of Jllip.11da11 1·/'hen she turned to soc who was trn.Hing her 3chc ..\ appollrurli held her by. tlw noclc, droppin0 her lug;;ac,·e in. the process • • a'' Then ho held her lJiV the riGht hancl, dra{se;ed b.or in a nearby bush and he then stripped. her n.:-tlccd. r:o threatened her wi-bh a lmifo if sho dared raiso a.n alaxm,. Pili Uohamod, the cor.1plaiJ1nnt, recounts wh2,t befell her in tho following words:- " 1'n1cn I wa.ntocl to raiso an ala:t'f.1 7 he ·foreatoned 1;:io with a knife and ordered r.10 to rci,1a.i11 silent. E:e then dre.,gcod oe to a nccU'by bush• ..ti.t the s.:iid bush ho ~11cl1--os::iocl Do naked ..... 11 There2..f·~or, as tho trial court round, tho ap~la.nt carnally l"...new her ag2.,'inrfi; tho course of nc;tui•c, ejacuL·:;_iJ'l(; t·wicee ltll this took place at around "1;'~ hour~ 11 noon• h.t about 1119.00 hours 11 she lod0 cd her 001~1pl~ifr~ to the Police e,t Kibaha who g3,ve her a _Police Forlil No. 3 (PF3) with which she went to :.10::::pital for medical ·-~ 1\: 'i ,•,. tli-ti · - \.~ i ~. : :l\" ·•· ... ..,. ~ ' .. . "' --~·i..f' . '. V r .·. .. t I .. ..... f e ,.nv~n,.;.,,,,,t1·on;,_. .•c;w.u.w..a.o., _ It,. ... .J l'Jli,m1~1· •• A . , ' .•.:. J_J J.., ..,t • 1"b21,..,.; :70S"l·ta"' o, 7 .L\. '.JJ.(.v' she was exa.i.11ined by a Medical Ass:'.ttmt who described himsel:.Z as a Dootor, one Tunzo Mujemae Ee testifies t~1us a·0 p.5 o:,: the proceedings:- 11 On eX&.c"Jfoh-1.c he,.· I preparecl a report. As por my obsermtion I cliscoverecl t4a.t there w,is a fracture on the anus and the saii1e had. sperms that were seen after the spcci!!ien was observed.,.,., o 11 • I think what the learned trial mac;istrate recorded as "••••a frc.cture on the anus 11 is likely to be a laceration at the anal opening, l1eoause I .<io not think the aims is composed of brittle material J. i ~ ~- Bke bonr s CJ!l 'tte!, fructured. Be that as it may, when consider:i.nc this evidence~ the l·aarned trial magistrate made the following obsel'vations at page ! of :,:tis jud.0nent:- 11: Au regards the second issue, that is to scy, as to w'lether the complainant was sodomized by the accused, the ,3vidence that establishes the 2,,ct of sodomy to have taken place is that of PW 1, PW 4 and p-;; 5•. FW 1' s testimony was that ·~tat a:fte:r ±•he accused had got hold of her, he dr~:53·ed her.., to 11. ··.1ea:rby bush where he strapped (sic) l:.0r clothes forceful'.cy- a:rcl sodomized her;j PW 4 Tunzo Mujer:w, was the one who ex:amined the complainant PHi Salum. ·According to his report, the anus of the cor.1pJ a:i.nant had raptrr0d which indicates that there had b:,e:1 ~oroible entryu111 "" o :i,1f:rthennore1 when the specii11en from the said anus was c:r'11:1ined, it was · d.:i.scovered that there hrui 1.Jccn some Gl, ::irmatozoa to the same. PW tb•1Y'.,' was t~0 one who -risitc.d the scene of i.i1cident.hu<1>~ Accordinc; to his obfJ,,rvations at the site, the scene showed that there he,d been ,...n activity. A-i:; the ·!;:1e same time there were also sandals that belonged fo the complainant and a 1Ut'5&aee both of uhich had been abandoned presumably after the saga., All the above circw11sta.nccs ·Fe;rify that the complainant was ~domised,. 11 After making this observation the 1 arned t~ial magistrate ri~ht'.cy- madc the pertinent question thusg":"' it· Then other q:uestio11 that t~ to be taclceled· by this court is as to whethe:c th.G 2.cCLJ.sed was the one who socl()mized the comp lai:n8ll t,.., • u 11 He then considered tho Gvidence ol the complainant, observing that she could easily ide.nth'y him bocausG she knew hin for a ve-ry long tili1ee I would add ·bha·t tho allc{s'ecl crime is said to have been committed durine; brocu.l dnylight, a f;:1cfor which could. add -~o the positive identi:i:ication of tho cri1~1inal .. The appellant has attacked tho al)ove finding-s 9 alleging in parae;raphs three and four of his petition of c1,ppeal, which is .pa.rt of the first conf;!olid.ated {µ'ovnd o::: appGiJ.l, that ·the prosecution evidence is unbelievable, it is cookerl -up and H is fake because at the material time of the all~ed crime it was, as I have noted earlier, in ·open daJi li&"ht. It was therefore possible that the commission of that violent crime would have attracted other people to tho scene• Tho appellant further ar ,-ucs 0 in his oral sub!llissions thc',t t·:,.ere was no evidence ·which identified the sperms which wore found in the anal opening of the complainant as being those of the app&llant. Under these circumstances there was .rio evidence upon which ho could have been tound guilty of the sexual chn.:rges ·against him,. In effect he argues that the complainc'lll"t 's accou..rit v--as not corroborated by . , independent and reliable testimony. On the oth0r haJ.1d, however, thG Ropu1)lic c:011tG1ids that there was sufficient evidence upon which ·i;b.c appollmr~ was f'.ound c;uil ty. For apart from the complainant I s testimony ·chor;; is also the evido~1co of PW 3 and, of course, of PW 2 and PW 4 which lend corroboration. to the account given by thQ complainant.. Now PW 2, i.e. Asha Omari, and PW 3, ~ Soleman AbdD.llah who arc .rife and husband were at tho material tine returning homo when ~hey saw t1ie compainant· emorgine from behind them crying. PW' 2 says that 11 • .., ••• By then she was naked with a torn undc1·sldrt. She w.:1s r.mnil1G uhile crying"• Tho same sto17 is recounted by Solcr.:an Abdalfah ( PW 3) who told the court that at about 11 1500 hours" wl~.ile they were procooding ~omc from their shamba they hoarll an aJ.a,rra from behind., They sa..r the compla:i.11ant who was running tovm,rds thoi!l, naked... l;i:,.was Asha Omar-,f (PW 2) who gave her a piece of klwn{.;-a with vhich to cover her nclcodncss. On being aslcod what had hap]?tm8d to hor tl:o cor.1plainant related. that she had boon ca.rna1l;y !mown a,g8..inst tho o:i;-dor of nature naminG her -5- assailant to Asha Ori1m7., - On tho sn.rno day tit!; "1700 hours" she named the appellant to Dotoctivo SJt. Salum (PW 5) who received her at the Police Stc.-.tion. There is ai1othor aspect. And th;::~t is, ·chat$ at the time the complainant all~gcd to have boon sOEUally assaulted by tho appellant tho appo llant tl1roato110d her with a kni:co., And at the time of 1 ' his arrest tho appollnnt ~ras also armed with a knife• Tp.at knife was seized by his· captors. .Ancl when ho was bcine cross-cxruninod I he admitted that the knife which we.s tendered as an 0:i::b.ibit was his. The complainant identified the same knife to have been the one the appella..rit brandished before and after ho sexually a.ssaul tod her. One more aspect is the contontion by tho appellant that the semen 1 which was found. in tho complain.mt' s boc1y was not identified to belong to hi..'ll• I think this is s~f'rflificant i:f there was not enough evidence which corroborated tho complainant's tGsti.11101-iy, for what is important in I sc:r..'UaJ. offences lilco rapo anJ. ca.rnal b1m;1Gd::;o contrary to the order of nature is pcn0tr2-tion1 lack of consent by tho wom311 involved and corroboration of her ovidoncc by sonc other independent probative evidonoc. That ovidoncci could be dirod evidence or circumstantial evidence. It is not even enough t:i.a.t tho victim, without more, was seen by other p0oplo moments afto~c tl,.o a:;.loe;ed rape and the only account of tho incident is ·tho complail1c.nt 1 s testimony alone. It is -~herefore Very import2.n·c for ·:;)le, trial magistr2,to to address himself adQqt.w;tely on tho need for corroboration in se.x:ua.l offonces, especially rapo ancl ccl.I'n.::-,1 ::1:novled,.;o a..;ainst tho order of nature. FI.avins gone throv.rsh -1:i!w record of the trial court I am ·satisfied th2,t the loai"Iloc.l tric:il ma.:;i:Jtratc dircctod himself properly on thoese important issues.. I::is finclincs t::~at tho 2.ppel;l.ant was adequately identified by the conplc:inant .:.:~ro well :foundocl on tho evidence which is su:fficiently corrobore;ted.~ T1..1oy cannot be faulted. Tb.ore was therefore enoueh 0vido11cc upon which to find tho appellant guilty of committinc tho unnatura,l offence as cha.reed under the first count. Now the evidence cannootin:; tho n.PP!allant with the charce in the third count is tho testimony of -~l:o complainc.1.11t who said, that after she had boon sCXWJ.lly assaulted tho appellant ordered her ·to keep quiet and ~ took her picc,:is of khc.1J.1e;2. and thrcntcned her with a knife if she desisted. Indeed the complainant .emerged from the budh naked 01;:cept for 2' torn u11dcr~~irt ·:-rl:.011 sho was seon. by PW 2 and PW 3. It was PW 2 who go:vc :.10:i.' a pioco· of-. ·1d1ariga with wl!ich to cover her nakedness.; 'Ti.1e learned trial ~.12.~i sti1"~tc . found.: :is .a foot that thi.s evidence proved the prosocu"cion: c:\so rcspectinc; the t'..1ird count. When considering· tl1e s~isti tic cqrn:1v.ct o:f the appollan:1; :in: st·ippil~ . the complainant nclced having commHtod. such a hcfoous c_rLw 2-FJ uimatuxal offence, .the trial magistrc:.te was justisfiod, correctly in my jud.;emont, to 11:old that there. was su:f:'ficient circ.'UL'.r.rliial evidonoo whic:t corroborates the c?mplah1ant' s testimony thn.t indeed -tl!.c a~)pollru:1t took t:10 cor,1pJ.ai11ant.1 s khanga without her consent and that duril'JC __ such tdci:nc.; ho t!:roatcncd her uHh violence by means of a lct:-;a1 uoapon, th0 ~ifo, ho was C;J,.L'ryinz. That was robbery. I woul~ therefore dismiss the a 1:ipoal 2-6 2-inst tho conviction· in respect · of th0 first Pnd third co1.mt s. As regards the part of· tho appcQ.]. rclc-;·Ginc,· to ._sentcnoo, I think tl:at · :t·1ve years· ir.prisonment moots t].:,,c nce:1s of jv.sticc in the circurnstanpos in ·,. -which the offonco prc::fcrrod in t'..'.!.s fi:-i. r::·;:; count was oo:m,1i tted-o 0 And the 30._ (thir~/~ears: of custodial- son·~ol;C(., h ;C;Gp:;ct. ol tho third count is the baa.rest s~atu;'cor:ty min:irnum. ' . · q;::.,; Irt. 'the result the app::l 2,l %'2.ins-t convictions end. sentence on tho first and third counts f.:'cils ru.1d. it is diBlt~ed. Convictious and sentonqe_s arc uphold and. conf irr,10d. '•'!j, ·-,:~ . ....._, . . -: ,:, .... .· ·.. JUDGE 31/8/90 31/8/90 Coram: __ Macl:C2..0ja, J. For Ropublic For 4,PP,~t: J'~ement dolivorod before tho parties above-named this 31st day Au.c:,'""Ust, 1990. J:. M~ M. Mackanja . JUDGE 31/~/90. I certify that this is tho truo copy of tho OfiGinal \