Charles Hombo v. Republic, Cr app no 220 of 2006 (Rape)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:  MSOFFE, J. A., KILEO, J. A And KALEGEYA J. A.)

CRIMINAL APPEAL No. 220 OF 2006

CHARLES HOMBO.................................................APPELLANT

VERSUS

THE REPUBLIC....................................................RESPONDENT

(Appeal from the Judgment of the High Court

of Tanzania at Tanga)

(Longway, J.)

Dated the 25^th day of June, 2002

In

Criminal Appeal No. 74 of 2000

-------------

JUDGMENT OF THE COURT

2 & 13 JULY, 2007

KALEGEYA, J. A.

        The appellant, Charles Hombo, was charged with and convicted of rape c/s 130 (2) (e) of the Penal Code and sentenced to 30 years imprisonment and twelve strokes of corporal punishment by the Muheza District Court.  He was also ordered to pay compensation in the sum of shs.20,000/= to the victim, Mwanahamisi Bakari.  His appeal to the High Court (Longway, J.) was dismissed.  Still dissatisfied, he  has preferred this second appeal.

        The appellant was unrepresented while Mr. BiSwalo Kachele Mganga, learned State Attorney, represented the respondent/Republic.

        In his memorandum of appeal which he adopted at the hearing of this appeal and to which he did not add anything material save insisting that the offence was not proved and that he simply administered beatings to the girl and her sister who were stealing his maize, the appellant raised six grounds of appeal which however, can be consolidated into three – namely, one, that there was no evidence in support of the offence of rape; two, that the prosecution evidence being suspicious exhibited contradictions and uncertainty on who the victim was, and thirdly, that the courts below erred in relying on PF3s involving two different girls, one aged 9 and another 12 years.

        On his part, the learned State Attorney supported conviction and prayed for dismissal of the appeal as the evidence adduced proved the offence beyond doubt.  Submitting in support thereof, he said that after the Court had properly conducted voire dire examination, PW1, the victim, testified in a straight forward manner which left the appellant with no question at all when allowed to cross examine her; that indeed the appellant assaulted PW1 but that that was during his acts of effecting the rape; that PW1 collapsed but after regaining consciousness she disclosed right away what befell her naming the appellant as the assailant; that there was no contradiction in the evidence and that even if there was, it was so minor that it did not go to the root of the matter.  Regarding the complaint on age and possible mix-up of victims the learned State Attorney insisted that there is no merit therein because the evidence shows that the victim was one, PW1, who however, attended  different hospitals all confirming of her having been raped, and that difference on age would have made no difference on conviction though it would in sentencing because if the stated age of 9 years had been established it would have attracted a life sentence of imprisonment.  

        On our side, we are satisfied that both Courts below arrived at a correct decision.  Their findings cannot be faulted.  In fact, all other procedural factors being in place, this was a fit case for summary rejection under section 4 (4) of the Appellate Jurisdiction Act 1979 (as amended by section 2 of Act No. 17 of 1993).

        The trial court’s record clearly shows that the court properly conducted a viore dire examination and after satisfying itself that PW1 was possessed of sufficient intelligence to know not only the meaning of an oath but also of telling the  truth, allowed her to take an oath and proceeded to give evidence found by the two courts below to be cogent and watertight, and to which we subscribe.

        The evidence believed by both courts was as testified by PW1, Mwanahamisi Bakari; PW3, Bakari Mdoe; PW4, Mwanamkosi Iddi; PW5, PC Mzonge, and PW7, Mariam Msonga.

        PW1 and PW2, sisters, sitting at different angles, were on the material day, guarding their farm against monkeys.  At about 11.00 a.m. the appellant who was also in his farm, just adjacent, called upon PW1.  PW1 went to him after hesitating.  Upon arrival, the appellant got hold of her, tried to remove her clothes and her attempts to run away failed as he grabbed her, fell her down, tore her underwear, blocking her mouth and nose and raped her.  PW1 lost consciousness, bleeding from her private parts.  Fortunately, PW2 who decided to check on her sister due to unexplained silence was shocked to find her in that state.  She hurriedly collected water, splashed it on her in the process assisting to regain her consciousness.  Bleeding and unable to walk she carried her home.  Having witnessed PW1’s bad state – bleeding private parts and swollen face-and the appellant having been named as the rapist she reported to the village chairman. PW1 was taken to Daluni Dispensary where, after some treatment referred her to Maramba Health Centre for further management.  PW3 attended PW1 (at Daluni Dispensary) and witnessed a swollen face, private parts with blood and semen.  PW6 who attended PW1 the following day at Maramba Health Centre confirmed PW3’s findings as she (PW1) was still experiencing severe pains with a swollen vagina still discharging waterly substances.

        Exhibit P2, the report compiled  by PW3 when he was referring the victim to the Health centre has the following:

“General examination

·         Swelling on the face

·         Multiple bruises

·         …………….

Genitalian examination

·         Clots of blood on genetalian seen

·         Pus discharge

·         Spermatozoa seen

·        P/V not done due to severe pain.”

It also gives the age as 12 years.

        PW1 and the appellant were not only village mates but also had adjacent farms.  The incident took place in broad daylight.  No reason was given, let alone suggested, as to why PW1 should so gravely frame up the appellant.

        In the light of the above watertight evidence the appellant’s explanation that he only administered beatings on PW1 and her sister for stealing his green maize cannot be accepted.

        Again, we have not been able to find any alleged contradiction, uncertainty or suspicion in the prosecution case.  It is a fact that PW3 attended PW1 at first and referred her to a Health Centre for a better management.  Referral to better services is a common phenomena in health services.  PW6 did not contradict PW3.  Both witnesses, from Health services, witnessed what the two laymen (PW2 and PW4) witnessed immediately after the assault on PW1’s private parts.  All through, the victim being referred to was PW1 and therefore there is no question of either mix-up or of two different girls.  Neither is there any material contradiction regarding the age of the victim capitalized upon by appellant.  It is true that the charge sheet stated PW1’s age as 12 years while PW6 estimated it to be 9.  PW3 did not give the estimated age of PW1 in his testimony but he indicated 12 years on his report.

        We are conscious of the fact that age is of great essence in sexual offences whose victims are under the age of 18 years.  This is so because any male who has sexual intercourse with a girl or woman, commits rape where that girl or woman “with or without her consent is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and not separated from the man” [section 130 (2) (e) of the Penal Code as amended by The Sexual Offences Special Provisions Act, No. 4 of 1998].  This is the very section under which the appellant was charged with and convicted of.  And much great care should be exercised by courts where the age is stated to be closer to 18 years.

        In the circumstances of this case however, we are of the settled view that the victim, PW1, was very much under 18 years of age.  She was described as a pupil of standard two.  Whether we consider what was indicated  in the  charge sheet which is 12 years and which is  similar to the one shown in her testimony or the one stated by PW6 (9 years) it does not take the appellant out of the ambit of section 130 (2) (e) of the Penal Code.  It would have given us extra headache however, if he had been sentenced to life imprisonment because then it would have necessitated strict proof on whether or not the appellant was under 9 years.  He was however sentenced to thirty years imprisonment, the minimum sentence for rape.

        For reasons we have stated, we are satisfied that the appeal is devoid of any merit and it is dismissed in its entirety.

DATED at TANGA this 13^th day of  July, 2007.

J. H. MSOFFE

JUSTICE OF APPEAL

E. A. KILEO

JUSTICE OF APPEAL

L. B. KALEGEYA

JUSTICE OF APPEAL

I certify that this is a true copy of the original 

(I. P. KITUSI

DEPUTY REGISRAR

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