Elias Juma v. Republic, Cr app no 133 of 2005

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

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

CRIMINAL APPEAL No. 133 OF 2005

ELIAS JUMA............................................................APPELLANT

VERSUS

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

(Appeal from the Judgment of the High Court

of Tanzania at Tanga)

(Shangali, J.)

Dated the 18^th day of February, 2005

in

Criminal Appeal No. 92 of 2005

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

JUDGMENT OF THE COURT

28^TH June, 2007 &

KALEGEYA, J. A.

        The appellant’s appeal to the High Court against conviction and sentence by the District Court of  Handeni was dismissed by Shangali, J.  on 18.02.2005.   Dissatisfied, the appellant is before this Court complaining on three grounds as follows:  Firstly, that the lower Courts did not consider the excessive sentence of 30 years imprisonment imposed; secondly, that the victim having been injured by her own panga it was erroneous for both Courts to hold that he injured PW1 and raped her, and thirdly, that the Courts scantly considered the evidence adduced by both the prosecution and the defence.

        The appellant who was on his own as he was not represented, while arguing his appeal before us, insisted that he was not arrested at the scene of crime; that identification was not watertight; that neither PW1 nor himself were medically examined; that he had no injuries and that the alleged wooden bicycle was not produced as an exhibit.

        On his part, Mr. Mganga, learned State Attorney, who represented the Respondent/Republic supported the findings of both Courts below.  He submitted that the prosecution evidence was watertight; there was no question of mistaken identity as the incident took place during broad daylight; PW1 was credible as she discarded all other suspects paraded  before her and even admitted being injured by her own panga.  On sentence, Mr. Mganga submitted that in terms of section 131 (1) of the Penal Code as amended by The Sexual Offences Special Provisions Act, No. 4 of 1998 and also section 5  (d) of the Minimum Sentences Act, 1972 (Cap.90, Revised Ed. 2002) it was the only one legally deserving.

        Both Courts below found the following facts established.  In the afternoon of 30.11.2000, PW1, Zuhura Mussa, who was returning home from collecting firewood was attacked by the appellant who fell her down and raped her.  It was also found as a fact that the victim (PW1) duly reported to the authority and sufficiently described the assailant (appellant) who was subsequently  arrested and charged.

        On our side, having carefully subjected to scrutiny the evidence on record and findings of both Courts, we are settled in our minds that the said findings were properly arrived at.

        The prosecution based its case on testimonies of PW1,  the victim of crime, PW2, Asia Kabelwa, the village secretary and PW3, Ally Athumani who was PW1’s ten cell leader.  In terms of exhibits, a PF3 regarding PW1’s examination and treatment was tendered as exhibit P1 while a letter authored by PW2 and addressed to Handeni police after the appellant’s arrest was tendered as exhibit P2.

        The appellant’s defence was brief – he denied the charge in total.

        As we have already stated, we are in agreement with findings of fact by the  Courts below.  PW1 – PW3 were found credible and we have no basis to conclude otherwise.  An appellate Court can interfere with such findings if there are misdirections and or non-directions (The DPP vs Mfaume Kawawa (1980) T L R 146). There were no misdirections and non-directions in the instant case.

        PW1 deposed in a straight forward manner on what transpired.  The incident took place in broad daylight.  From her testimony there was no question of mistaken identity.  The victim (PW1) had very ample time to mark the assailant.  It was not a flitting glance.  The relevant part of PW1’s testimony was as follows:

“On 30.22.2000 at 2.oo pm I was returning home from collecting firewood, on the way accused was on my back, he was driving a wooden bicycle nicknamed ‘ngongongo’ he passed me and stopped a bit far from me.  On reaching him greeted me and I respondent (sic)  I also passed him and left him standing.  After 2 paces, he came after me he pushed my load of fire wood and it left (sic) down, as I had a panga, it cut me on my hand. It was raining heavily, I shouted for help but no one turned up.  I also felt down and accused raped me, accused was injured on his fire head by the fire wood, accused then left me and returned to where he was coming from,  I went to my ten cell leader one Ally and narrated the story.  He gave me a letter and went to Hospital for treatment.  I was examined by a Doctor and treated, I didn’t know accused’s name but I was familiar with  him by sight, he was staying at Lusolo farm area.  Ally (ten cell leader) arrested 3 youths but I told him that they were not the ones, they were discharged.  Another person was assigned to a arrest other youths he came wit accused and I confirmed to be the one who raped me and the injury/cut wound was still fresh, on that day be was wearing black clothes.  At Police Station Handeni I was given a paper and went to Handeni Government Hospital.  I pray to tender the PF. 3 as exhibit.”

PW1’s evidence on what transpired up to the time she reported to the ten cell leader was consistent with what she related to both PW2 and PW3 which was immediately after the incident.  PW2 and PW3 so confirmed in their depositions.

        We are indeed satisfied with PW1’s credibility as did the two Courts below.  If PW1 had any element of not being credible she would not have readily admitted injury by her own “panga” when she fell down.  Faced by such dehumanizing and traumatizing act it was very easy for her to allege that the injury was caused by the assailant if only to aggravate his unlawful acts.  She did not.

        These is also another element which fortifies us in our finding.

Both PW2 and 3 support PW1’s deposition that having given the description of the assailant, militiamen were dispatched and hunted down possible suspects and paraded them before PW1 for identification.  Honest as she was, she did not pick on any on three of such parades until the appellant was finally brought.  Clearly, PW1 was exact in her identification: she was not guessing.  On this PW2 stated,

“On 01.12.2000 I sent militiamen to look for youths, they were brought to the village office 3 times but Zuhura denied that those were not the ones.

In the evening, Elias was brought to the office, he was still wearing black clothes and had a fresh wound on his forehead, Zuhura identified him as her rapist”,

while, PW3, also deposed,

“..... we then started to arrest youths from Lusolo and took them to the village office, 3 youths were taken there but Zuhura claimed that they were not the ones.  At 7.30 pm I went to the office......... the one who had raped Zuhura had been apprehended he was Elias Juma.......... he had black clothes and had a fresh cut wound on his forehead.”

In view of the above evidence the appellant’s complaint that he was not arrested at the scene is without substance for it would defeat commonsense  for a rapist to remain at the scene after satisfying his lustful desire, and in any case, this goes counter to the narration of the facts.

        In the same vein the appellant should not be heard to complain that identification was not watertight.  As explained already, PW1’s testimony, substantially quoted above, leaves no spec of doubt on this.  It was broad day light.  This together with the period of the encounter and PW1’s subsequent description and identification point to no other person but the appellant.

        Likewise, his complaint that the victim and himself were not medically examined does not hold water.  The victim was clearly examined by the doctor as per exhibit P1.  That was on the same day of incident.  Exhibit P1, among others shows:-

“P.V  Examination – small bruise of laterally vaginal orifice

*H. I. Vaginal EX – SWAB –Spermatozoa seen in H. P. F”

We note, indeed, that the appellant was not medically examined and if he was, it was not reflected on record.  In our view, however, this did not affect the otherwise credible evidence of PW1 –PW 3.

        In her statement to PW2 and PW3, among the description she gave of the assailant were the types of clothes he was wearing and also the fact that he was injured by firewoods on his forehead during the scuffle.  These  matched with the appellant when apprehended.  His denial in defence given almost 16 months (on 11.04.2002) after the incident (30.11.2000) that he had no injury on the forehead flies in his face in view of PW1 - PW3’s testimonies.  And in his brief testimony, while denying raping PW1, he was very explicit that no enmity existed between him and the prosecution witnesses.  In fact he said they were telling the truth.   He is on record saying,

“I heard the testimonies of the prosention witnesses, I have never quarreled with them, what they said is of truth”  (Emphasis ours)

We are satisfied that both Courts below properly convicted the appellant as charged.

Lastly, we turn to sentence.  This should not detain us.  As rightly submitted by Mr. Mganga, learned State Attorney, the sentence meted out was in accordance with the law save that the trial Court overlooked the question  of corporal punishment.  The Sexual Offences Special Provisions, Act No. 4 of 1998 amended section 131 of the Penal Code by repealing it and replacing it with  a new section 131.  The new section 131 (1) provides:

“131. – (1)  Any person who commits rape is, except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, and with fine, and shall in addition be ordered to pay compensation of an amount determined by the court, to the person in respect of whom the offence was committed for the injuries caused to such person.”  (Emphasis ours)

The complaint on sentence is therefore without merit.   In actual fact, full sentence as provided by the law was not meted out by the High court.  Under the above quoted provision, apart from 30 years imprisonment, the Court mandatorily had to impose corporal punishment and compensation as well.

        In terms of section 4 (2) of the  appellate Jurisdiction Act (Cap 141, R. E 2002), we have to step into its shoes on this aspect.  In addition to 30 years imprisonment the appellant is hereby sentenced to 12 strokes of corporal punishment.  As for compensation, we are of the considered view that for the mental anguish, dehumanizing and traumatizing act committed on her and the injuries sustained on her private parts as reflected by the PF.3, a sum of shs 100,000/= would suffice.  That sum should be paid to PW1 by the appellant.

        For reasons stated, we dismiss the appeal and vary sentence accordingly.

DATED at  TANGA this 5^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 REGISTRAR

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