Halfani Mohamed v. Republic, Cr app no 206 of 2004 (rape contrary)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:    NSEKELA, J.A., MSOFFE, J.A., And MJASIRI, J.A.)

CRIMINAL APPEAL NO. 206 OF 2004

HALFANI  MOHAMED …………………………………………… APPELLANT

VERSUS

THE REPUBLIC ………………………………………………… RESPONDENT

(Appeal from the conviction of the High Court

of Tanzania at Mtwara)

(Kaganda, J.)

dated the 9^th day of September, 2004

in

Criminal Appeal No. 16 of 2004

JUDGMENT OF THE COURT

22 September 2008

MSOFFE, J.A.:

        The District Court of Newala, Kibela, DM (as he then was) convicted the appellant of rape contrary to sections 130 and 131 of the Penal Code as amended by the Sexual Offences Special Provisions Act No. 4 of 1998.  He was sentenced to a prison term of thirty years.  The District Court also imposed corporal punishment of twelve strokes of the cane.  Aggrieved, he appealed to the High Court at Mtwara where Kaganda, J. dismissed the appeal.  Still aggrieved, he appealed to this Court, filing six grounds of appeal.  At the hearing of the appeal the respondent Republic was represented by Ms. Anikalo Msabila, learned State Attorney, and the appellant appeared in person.

        In the grounds of appeal, the appellant is essentially saying that the prosecution case against him was not established beyond reasonable doubt.  He is of the view that the pieces of evidence by the complainant PW1 Zawia Nalinga and that of PW2 Abrahamani Mohamed Ndeule were not enough to prove the case against him to the required standard.  In his view, there was no evidence adduced before the trial District Court to support the complainant’s assertion that he broke into her room and raped her.  Also, that the evidence of PW2 was worthless because he did not witness the alleged rape.  At best the evidence of PW2 was simply that he arrested him about  35 paces away from the house of PW2, without more.

        Ms. Msabila did not support the conviction.  It was her submission that the offence of rape was not proved beyond reasonable doubt.  For instance, no evidence was forthcoming to show whether or not the door to PW1’s room was open before the appellant entered, whether or not PW1 was putting on her clothes at the time of the alleged sexual encounter, and whether or not PW1 raised an alarm at the time in issue; she urged.  In her view, a look at the evidence in its totality would appear to suggest that there was an understanding between PW1 and the appellant to have sex on the material day and time in question.  In the circumstances, it could not be safely said that lack of consent, which is one of the essential ingredients in an offence of rape, was proved beyond reasonable doubt; she contended.

        At this juncture, we think it is pertinent to give a brief account of the case which was before the trial District Court.

        The prosecution version went as follows.  PW1 and the appellant knew each other quite well before the date of incident.  The appellant is PW1’s brother’s son and lived at Chihangu village.  On the night of 8/11/1999 PW1 was asleep.  The appellant entered into her room, forced himself into her thighs and raped her.  She raised an alarm after which the appellant decided to run away.  Before he ran away she snatched his T-shirt and retained it.  PW2 responded to the alarm.  He saw the appellant running away and he arrested him.  In the meantime, PW1 reported the incident to Kitangari Police Post where she was given a PF3 for medical examination.  The examination revealed that there were spermatozoa in her vagina.

        In his defence the appellant told the trial court that PW1 was his long time girl friend.  In the early hours of the evening of 7/11/1999 he met PW1 at a local “pombe” shop.  After a brief conversation, PW1 asked for 500/= in return for sexual intercourse at her home sometime later at night on that day.  During the night, at a time he did not exactly remember, he went to PW1 as agreed.  He knocked the door and introduced himself to PW1.  He was met with a very hostile response from PW1.  PW1 told him that she had postponed the sexual promise because she was sleeping with another man in the room at the time.  He insisted on seeing the man.  PW1 refused him entry into the room and in the ensuing fracas PW1 insulted and spat at him.  The man in the room emerged, snatched his T-shirt and retained it.  For fear of his safety, he ran away leaving behind the T-shirt.

        It is, of course, for the prosecution to prove the guilt of an accused person beyond reasonable doubt.  An accused person does not assume any burden to prove his innocence.  The crucial question in this appeal is whether the evidence against the appellant proved the offence of rape beyond reasonable doubt.

        Both the trial District Court and the High Court on first appeal reached a concurrent finding of fact that the appellant had sexual intercourse with PW1 on the night in question without her consent.  The courts below reached that finding after believing the oral evidence of PW1 and the PF3.  The issue is whether that finding is supported by the evidence on record.  In resolving the issue, we are aware that in a second appeal the Court will interfere with findings of fact by the courts below where there are misdirections and non-directions on the evidence on record – The Director of Public Prosecutions v Jaffari Mfaume Kawawa (1981) TLR 149 at page 153 and Neli Manase Foya v Damian Mlinga, Civil Appeal No. 125 of 2002 (unreported).

        Without hesitation, we are of the considered view that the case against the appellant was not proved beyond reasonable doubt.  We say so for the reasons which were argued before us by Ms. Msabila.  We need not repeat the reasons here.  We wish, however, to add the following points by way of emphasis.  When PW1 was cross-examined by the appellant she is on record as having stated:-

“ …. For a person who enters in a hotel and takes meal and left (sic) without paying will be treated as the thief ….”

It occurs to us that by the above statement PW1 was impliedly confirming the appellant’s assertion that there was an understanding between them to have sexual intercourse on that day.  If so, it cannot really be safely said and concluded that, assuming PW1 was truly carnaly known by the appellant, she did not consent to the sexual intercourse.  That aside, as demonstrated above, the appellant’s further version was that there was another man sleeping with PW1 at the time in issue.  Yet PW1 did not cross-examine the appellant on this serious allegation!  As it is, in the absence of cross-examination, it will be fair to say that the appellant was not contradicted on the allegation.  If so, there was a strong possibility that the spermatozoa found or seen in PW1’s vagina, and reflected in the PF3, were that of the other man.  Since that possibility was not ruled out it cannot be said with certainty that the appellant had sex with PW1 on that day.  In fact, this is what the appellant appears to be saying in his ground 5 of the memorandum of appeal.  In the said ground he is, in essence, saying that the spermatozoa were not his but of the other man.

        All in all, as already stated, we are satisfied that the case against the appellant was not proved beyond reasonable doubt.  On the available evidence, the appellant ought to have been given the benefit of doubt and thereby earn an acquittal.  We accordingly allow the appeal, quash the conviction and set aside the sentences.  The appellant is to be released from prison unless lawfully held.