IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: MROSO, J.A., KAJI, J.A. And RUTAKANGWA,
J.A.)
CRIMINAL
APPEAL NO. 225 OF 2007
LEONARD
JONATHAN ………………………..………… APPELLANT
VERSUS
THE
REPUBLIC ………………………………..……… RESPONDENT
(Appeal
from the Decision of the High Court of Tanzania
at
Moshi)
(Munuo,
J.)
dated
the 21st day of September, 2001
in
Criminal Appeal No. 53 of
2001
--------------
JUDGMENT
OF THE COURT
17 October & 30
November, 2007
MROSO, J.A.:
The
appellant was charged with and convicted for rape contrary to sections 130 and
131 (1) of the Penal Code as amended by the Sexual Offences Special Provisions
Act, No. 4 of 1998. He was sentenced to
a term of 30 years imprisonment with 10 strokes of corporal punishment. The trial court did not make any order for
compensation in monetary terms but directed as follows –
“The
accused person to pay Amenana Elinkira (the victim of the rape) compensation
for rape by (sic) instituting a Civil Suit, in this court.”
That direction is curious because section 131 (1)
provides that, among other things, the person convicted for rape “shall be ordered to pay compensation of an
amount determined by the Court” to the victim of the rape. It was not correct, therefore, for the trial
court to direct that the victim of the rape was to institute a civil suit to
recover compensation unless the amount to be paid as compensation was too large
to be ordered in a criminal case. The
first appellate court apparently overlooked this wrong direction by the trial
court.
The appellant’s
appeal to the High Court was dismissed in its entirety. He has now resorted to this Court, lodging
five grounds of appeal. He did not have
the benefit of legal counsel. On the
other hand the respondent Republic was represented by Mr. Alexander Mzikila,
learned State Attorney, who supported the conviction and the sentence which the
trial court imposed on the appellant.
Before we
consider the grounds of appeal, we wish to give brief facts of the case which was
before the trial court.
On 16th
December, 1999 at about 6 pm a 23 year old girl, one Amini-Anna Elinkira, was
with other girls and was going home from church. Suddenly a group of about five young men who
included the appellant abducted her and took her to the home of the appellant. The appellant forcibly had carnal knowledge
of her. News of the incident reached the
father of the girl. The father went to
the home of the appellant with a view to rescuing his daughter. As he tried to enter the room where the
appellant was with Amini-Anna (PW1) he was hit by the third accused and dropped
down unconscious. He had to be admitted to
a hospital. Amini-Anna succeeded to
escape from the appellant’s house. She
went to a hospital in Bomang’ombe where she was examined. A PF3 was filled in and produced at the trial
as exhibit P1. The appellant was
arrested and prosecuted for rape.
In his
defence at the trial the appellant admitted he abducted PW1 and that he had sex
with her. However, he said Amini-Anna –
PW1 – had been his girl friend and they had agreed on marriage. Since church marriage was costly he decided
to marry her his own way by doing what he did.
Amini-Anna denied that there was any agreement between them to marry or
even that she was his friend. She did
not consent to sex with the appellant.
She said the appellant raped her.
The trial court as well as the first appellate court rejected the
marriage idea and found the appellant had raped PW1 and sentenced him
accordingly.
In his five
ground memorandum of appeal the appellant said in his first ground that rape was not proved beyond a reasonable
doubt. In the second ground the complaint is that section 192 (3) of the Criminal
Procedure Act, 1985 was not complied with as no Preliminary Hearing was
conducted. Section 240 (3) also of the
Criminal Procedure Act was not complied with and that formed his third ground of appeal. In the fourth
ground it is said that there were contradictions in the evidence of PW1 –
Amini-Anna, PW2 – Neema Mengisen Swai and PW6 – Wilson Nsaro Mwasha on “who was raped”. Finally, the fifth ground is that sections 142 and 143 of the Criminal Procedure
Act, 1985 were not complied with.
At the
hearing of the appeal the appellant did not wish to canvass his grounds of
appeal but wanted the learned State Attorney to address the Court first and
subsequent to the address by the State Attorney the appellant spoke briefly
about his grounds of appeal. We now wish
to discuss those grounds of appeal.
It will be
recalled that the appellant agreed he had sex with Amini-Anna (PW1) on 16th
December, 1999. The question is whether
that act amounted in law to rape.
Section 130
(2) of the Penal Code as amended by the Sexual Offences Special Provisions Act,
No. 4 of 1998 defines rape as having sexual intercourse with a woman or girl in
the following relevant circumstance –
“(a)
not being his wife or being his wife who is separated from him without her
consenting to it at the time of sexual intercourse”.
The appellant’s explanation as we understand him was
that in having sex with Amini-Anna on that day he was in the process of
marrying her in a less costly manner than would be in a church marriage.
But Amini-Anna said on oath in her evidence that she had not consented
to sexual intercourse with the appellant.
She said in fact that she was raped.
The manner
in which the appellant secured sexual intercourse with Amini-Anna indeed shows
that she had not consented to having sex with the appellant. She was abducted and forcibly taken into the
house of the appellant. She was stripped
naked by the appellant who was assisted by one Eshiwakwe Justine who
subsequently absconded and could not be brought to court to stand trial along
with the appellant. This Eshiwakwe
assisted the appellant by holding Amini-Anna’s legs apart in order to make it
easy for the appellant to have coitus with her.
She escaped from the room holding her underclothes when she was
rescued. In all those circumstances it
cannot be said that Amini-Anna consented to sex with the appellant. It is naivé, to say the least, for the
appellant to say rape was not proved. It
is plain that the appellant had sex with Amini-Anna without her consent
regardless of whether there was agreement between the two to get married which,
at any rate, was denied by Amini-Anna.
We are satisfied, as were the two courts below, that the appellant raped
PW1 on the day he abducted her. Even
assuming that there is a custom which approves of such mode of marriage, such
custom is anachronistic and cannot be accepted as dispensing with the need for
consent to the sexual act. We dismiss
the first ground of appeal.
The
appellant did not explain in what manner the omission to comply with section
192 (2) of the Criminal Procedure Act prejudiced him. Mr. Mzikila conceded that the trial court did
not hold a preliminary hearing as required under section 192 of the Criminal
Procedure Act but hastened to say there was no prejudice to the appellant.
As was
rightly conceded by the learned State Attorney, the trial court indeed did not
hold a preliminary hearing which is intended to expedite the trial. The six prosecution witnesses who testified
at the trial did so within a time span of 35 days, from 23rd August,
2000 to 27th September, 2000.
The defence case was to begin on 30/10/2000 but it did not because on
that day the trial magistrate was indisposed.
It started on 13th November, 2000 and was concluded on the
same day. It cannot be argued
convincingly that there was inordinate delay in trying the case and, in fact,
the appellant did not make any such complaint.
The
argument by the appellant is that had a preliminary hearing been held it would
provide him with the opportunity to know in advance what the prosecution
witnesses would tell the trial court and he would prepare his questions in
cross-examination more knowledgeably.
It would
appear that the appellant may have confused a preliminary hearing with a
preliminary inquiry in committal proceedings under section 246 (2) of the
Criminal Procedure Act, 1985. Therein
part of the committal procedure is as follows –
“(2) Upon appearance of the accused person before
it the subordinate court shall read and explain or shall cause to be read and
explained to the accused persons the information brought against him as well as
the statements or documents containing the substance of the evidence of
witnesses whom the Director of Public Prosecutions intends to call at the
trial”.
Under the provision just cited an accused person can
know in advance of his trial the kind of evidence and the witnesses who will
give that evidence at his trial.
In section
192 of the Act however the emphasis is on ascertaining matters which will not
be in dispute at the trial so that witnesses will not unnecessarily be called
to testify on undisputed evidence. In
that connection what is tendered during the preliminary hearing are a statement
of the salient facts in the case, a signed memorandum of undisputed facts and
undisputed exhibits. All along the
objective is to shorten the length, and to reduce the cost, of the trial if there
are substantive undisputed facts.
Witnesses’ statements are not read out to the accused person as in a
preliminary inquiry.
As
mentioned earlier, we did not find in this appeal reason to think that the
appellant was in any material way prejudiced by the failure of the trial court
to conduct a preliminary hearing under section 192 of the Criminal Procedure
Act. We dismiss that ground of appeal.
The trial
court did not inform the appellant of his right to require the doctor who
examined PW1 after the rape to be summoned to appear to give evidence and to be
cross-examined as required under section 240 (3) of the Criminal Procedure
Act. Presumably, if the doctor were
called to give evidence it would be with the view to ascertaining if there was
evidence of penetration at the time PW1 said the appellant had sex with
her. But there was no need of such evidence from a doctor
because there was no dispute that the appellant in fact had coitus with PW1. The failure by the trial court to comply with
section 240 (3) is therefore of academic significance only. We need not discuss it any further, and we
dismiss that ground of appeal.
The fourth
ground of appeal is on alleged contradictions in the evidence of the
prosecution witnesses as to who was
raped (our underlining). We have
looked at pages 5 and 11 of the record to which we were referred in the
memorandum of appeal for evidence of contradictions as to who was raped. With all due respect to the appellant, we
could find no contradictions regarding who was raped. The evidence consistently showed that it was
PW1 – Amini-Anna – who was raped and the appellant agreed that he had sex with
PW1, only he did not consider it to be rape but mischievously considered it a
style of marrying. That ground of appeal
is also dismissed.
The final
ground of appeal is that sections 142 and 143 of the Criminal Procedure Act
were not complied with. Those provisions
deal with a situation where it is considered that a particular person who was
not summoned has material evidence. The
court can compel such person to appear to give evidence or to produce a
document which is of material evidential value.
The
appellant said that the investigating officer of the case should have been
summoned to give evidence at the trial so that he could be cross-examined.
It is true
the police officer who investigated the case did not give evidence at the trial
and it is not even known who the investigating police officer was. Was it necessary for such officer to give
evidence?
It is the
duty of the prosecution to bring all necessary witnesses to court who will
prove that the accused committed the offence of which they are charged. Once they fulfil that duty, they are not
under any obligation to bring every witness who has evidence to testify at the
trial. In the case under appeal they did
not think the investigating officer needed to testify at the trial. They believed that the witnesses who were
summoned sufficed to prove the charge against the appellant. We agree with the prosecution that with the
evidence of the six witnesses who appeared at the trial, the charge of rape
against the appellant was proved beyond a reasonable doubt. Although it may have been desirable to have
the investigating officer testify, he was not a necessary witness.
There is no
indication from the record that the appellant wanted the investigating officer
to be summoned to testify at the trial and the complaint in the memorandum of
appeal appears to be an afterthought.
Where an
accused person feels strongly that a particular person, though not listed as a
witness at the trial, is necessary to bring to court material evidence, he
should request the court to summon such witness. The court will consider the request and if it
appears to the court that indeed the suggested witness is in possession of
material evidence it shall require the attendance of such witness by issuing a
summons to compel his appearance. That
is the purpose of sections 142 and 143 of the Criminal Procedure Act,
1985. Since the appellant did not make
any such request and even at the hearing of this appeal he did not say
what material evidence such witness
would give if he were summoned to the trial court, we find no merit in this
ground of appeal and we dismiss it.
It will be
seen that all the grounds of appeal filed by the appellant have no merit and
have been dismissed. Since the sentence
of 30 years imprisonment and 10 strokes of corporal punishment are sanctioned
by the law, the entire appeal is dismissed.
The trial court is directed to assess the amount of compensation the
appellant should pay to the victim of rape.
DATED at DAR ES SALAAM this 12th day
of November, 2007.
J. A. MROSO
JUSTICE
OF APPEAL
S. N. KAJI
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(I. P. KITUSI)
DEPUTY
REGISTRAR
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