Oswald Fabian @ Juma v. Republic, Cr no 56 of 2004 (Rape)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:   MROSO, J.A, KIMARO, J.A  And  LUANDA  J.A.)

CRIMINAL  APPEAL  NO. 56  OF 2007

OSWALD FABIAN @ JUMA ………………………………………………… APPELLANT

VERSUS

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

(An appeal from the Judgment  of the High Court

of Tanzania at Tanga)

(Mkwawa, J.)

dated the 23^rd day of June, 2003

in

Criminal Appeal Case No. 44 of 2003

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

JUDGEMENT OF THE COURT

25^th June & 3^rd July, 2008

LUANDA, JA

In the District Court of Korogwe, the appellant was charged with rape contrary to sections 130(2)(e) and 131(1) of the Penal code.  He was convicted as charged and sentenced to life imprisonment.  Aggrieved by both the conviction and sentence, he appealed to the  High Court.  The High Court (Mkwawa, J) dismissed the appeal but set aside the sentence of life imprisonment and substituted thereof a sentence of 30 years imprisonment.  Still aggrieved, the appellant has come to this Court on second appeal.

In his memorandum of appeal, the appellant has raised four grounds.  In the said grounds of appeal, the appellant essentially said to this effect:  One, the prosecution side did not prove their case to the standard required namely beyond reasonable doubt.  Two, the learned trial magistrate failed to evaluate the evidence properly especially that of the complainant in that her evidence was not corroborated.  Three, the learned appellate Judge, like the trial magistrate, did not also properly evaluate the evidence of the complainant which was not corroborated.  Lastly, he denied to have ever confessed before D/Sgt Evans. 

In this appeal, the appellant appeared in person: whereas, the respondent Republic was represented by Mr. Oswald Tibabyekomya, learned State Attorney.  Mr.  Oswald Tibabyekomya supported the finding of the lower courts.

Before the Court discusses the merits or otherwise of the appeal, we consider it appropriate to give a short account of the case against and for the appellant.

The appellant is the step father of Lucia d/o Kostanzi (PW1), the complainant.  The appellant is married to Elizabeth Galus (PW2), the mother of the complainant.  The trio were living at Kwamduru within Korogwe District.

It is the evidence of PW1 that the three were living together since 1996.  And PW1 was a pupil at Kwanduru  Primary School.  At the time she was tendering evidence, she was 15 years of age and she was in Std IV.

On 20/7/1999 around morning hours, one Audilia Kivuyo (PW3), the head teacher of the complainant, suspected PW1 to be pregnant.  The head teacher, PW3, summoned her mother.  Her mother, PW2, responded to the call and she was informed about their suspecion.  In order to ascertain as to whether PW1 was pregnant, she was sent to Majengo Dispensary for pregnancy test.  PW1 was tested.  Indeed, PW1 was pregnant.  Dr. Jafred Kimei (PW6) who examined her said she was 30 weeks pregnant.  That was on 29/7/99.  She was querried as who was responsible for the pregnancy; PW1 spilled the beans.  And the following is the story.

One day, she did not mention the date, when she was cleaning her parents’ bed room, she accidentally knocked down a speaker of the appellant’s radio.  The appellant threatened to chase her away from his home if she did not offer him sex in return.  Believing that she might be chased away, she succumbed to the appellant demand.  The following day,  PW1 had sexual intercourse with the appellant.  By then her mother was not at home.  She was on safari. 

PW1 went on to say that subsequent to that sexual intercourse, the appellant new her carnally on diverse occasions until she was found to be pregnant.  The one who impregnated her was the appellant.  The appellant was arrested by D/sgt Evans (PW4).  And when querried he admitted to have  had sexual intercourse with the complainant.  Later, the appellant gave a cautioned statement which was tendered in court as    Exh B.

The appellant in his sworn statement denied to have committed the offence.  As to the cautioned statement, he said he was forced into making it.  However, in his evidence, he said it was PW1 who had offered him sex in exchange for the damaged speaker.  The appellant did not elaborate his grounds of appeal.  He left it to the Court to consider. 

Mr. Oswald Tibabyekomya, learned State Attorney argued all the grounds together.  First, he said the trial court and the High Court relied on the evidence of PW1 and cautioned statement of the appellant to convict.  Since, there is a concurrent finding of facts by lower courts, there are no sound reasons for this Court to interfere with that finding.  Second, he said in sexual offences where the victim is the sole witness, the law provides two alternative schemes namely, the court may convict if it is satisfied that the witness is telling nothing but the truth or in case the court find it is unsafe to ground a conviction on the evidence of the victim alone then it should look for corroboration.  He cited S.127(7) of the Law of Evidence, cap. 6.

In our case, he said the trial court did not properly address itself on this requirement.  However, he said the evidence of the complainant was corroborated by the cautioned statement of the appellant.  He cited Hemed Abdallah v. Republic [1995] TLR 172 where the Court held that the court can base a conviction on repudiated or retracted confession if it warned itself of the dangers of doing so.  And the trial court, he went on, followed the procedure in admitting the statement.  Third, as regards the denial of the appellant to have made the statement, he said that is an afterthought as the appellant did not raise it during the trial or before the first appellate Court.  As already indicated, the appellant attacked the finding of both courts below in that the evidence is not strong to ground a conviction.   Both Courts below found that the complainant was raped by the appellant.  The question for determination and decision is whether the concurrent finding of fact by both courts was proper.

The prosecution side relied on the evidence of the complainant and the cautioned statement of the appellant, to achieve a conviction.  The complainant testified on oath to the effect that it was the appellant who raped her and not once but on several occasions.  But the trial court relied on the evidence of the complainant alone to convict.  If that were the sole evidence on the prosecution side, which it were not, then it ought to go further and warn itself on the dangers of relying on such evidence to convict.  Unfortunately, that was not done.  We agree with Mr. Oswald Tibabyekomya that the trial court did not properly address itself on the need to do so as is provided under section 127(7) of the Law of Evidence, Cap. 6.  The Section reads;

127 (7) Notwithstanding the preceding provisions of this section, where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender years or of a victim of the sexual offence, the court shall receive the evidence and may, after assessing the credibility of the evidence of the child of tender years of (sic) as  the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child of tender years or the victim of the sexual offence is telling nothing but the truth.  [Emphasis supplied]

In view of the above cited section, we are of the settled mind that where the trial court relies on the evidence of a sole victim of rape to convict, it ought to consider not only the question of credibility but should also warn itself on the dangers of relying on such evidence.   

But our case is quite different.  There is another set of evidence; the cautioned statement of the appellant.  In the statement which the appellant  gave freely and voluntarily to D/Sgt Evans (PW4), he confessed to have had sexual intercourse with the complainant as an exchange for the damaged speaker and repeated to do so.  He said, we quote:-

“ Nakumbuka mnamo mwezi wa nane 8/98 huko Kwamdulu Nyumbani kwangu majira ya asubuhi nilisikia speaker ya radio yangu ikianguka na nilipofuatilia nikagundua kwamba ni Lucia binti yangu ambaye alikuwa anafanya usafi ndiye aliyeidondosha.  Ndipo mimi nikamwambia aipeleke kwa baba yake mzazi ikatengenezwe lakini Lucia akajibu mimi siwezi kwenda huko, akasema kama kulipa nitakulipa kwa kuwa ilikuwa imeharibika.  Alisema anaweza kulipa hata kwa kufanya tendo la ndoa (ngono) mimi nikamwambia (mimi) lakini ni baba yako, yeye akajibu mimi sina ukoo na wewe.  Mimi aliponijibu hivyo ndipo nikamwambia tufanye hiyo ngono kama malipo ya maengenezo ya Radio.  Na hiyo ndiyo ilikuwa mara ya kwanza kufanya tendo hilo la ndoa.  Ndipo Lucia akakubali tukafanya tendo hilo la ndoa palepale ndani kwenye nyumba yangu na mama yake alikuwa amesafiri.  Baada ya hapo nilirudia tena…”  

This evidence was not seriously challenged.  No wonder  it was accepted and the High Court acted on it.  The High Court also addressed itself on the appellant’s denial that he did not make it freely and repudiated it.  Indeed, the cautioned statement of the appellant alone is enough to ground a conviction.  The main story in the cautioned statement is in all fours with the complainant’s evidence.  From the foregoing, we have no doubts in our minds that the appellant had sexual intercourse with the complainant who was 15 years of age, notwithstanding failure to specify the date it took place.  After all the question of date should not be taken too seriously with ordinary villagers as they do not have much to do with dates.

In terms of section.130 (2)(e) of the Penal Code, Cap. 16 that is rape. It is immaterial whether she consented to it or not.  The section provides:

130(2) The male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following description –                                        (e) with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man.

From the foregoing therefore, we agree with Mr. Oswald that there is strong evidence on record to justify the conviction.  The appeal is devoid of merits.  We dismiss the same in its entirety.

DATED at TANGA this 1^st day of July 2008.

J.A MROSO

JUSTICE OF APPEAL

N.P. KIMARO

JUSTICE OF APPEAL

B.M. LUANDA

JUSTICE OF APPEAL

I certify that this is a true copy of the original

(W.E. LEMA)

DEPUTY REGISTRAR

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