IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: MROSO, J.A., KAJI, J.A., And RUTAKANGWA,
J.A.)
CRIMINAL
APPEAL NO. 226 OF 2007
SPRIAN
JUSTINE TARIMO .……………………….… APPELLANT
VERSUS
THE
REPUBLIC …………………………………….… RESPONDENT
(Appeal
from the Judgment of the High Court
of
Tanzania
(Munuo,
J.)
dated
the 17th day of December, 2002
in
Criminal Appeal No. 54 of
2002
------------
JUDGMENT
OF THE COURT
25 October & 30
November, 2007
RUTAKANGWA, J.A.:
The
appellant was convicted by the District Court of Rombo District of the offence
of rape contrary to sections 130 and 131 of the Penal Code. He was found to have raped one Selina d/o
Silayo on 8th July 2001 at about 13.00 hours. He was sentenced to thirty years imprisonment
and 12 strokes of the cane. He
unsuccessfully appealed to the High Court at Moshi against the conviction and
sentence. Believing he is innocent of
any crime he has filed this appeal.
Before we
look at the reasons which forced the appellant to come to this Court we have found
it appropriate to narrate briefly the evidence which led to his
conviction. It was as follows:-
On the
material day when Selina (PW1) together with Anna Thomas (PW2) was heading home
from church she was whisked off to the home of the appellant by three people
who were riding a motor cycle. Once at
the appellant’s home, she was taken inside and laid on a bed. Beside the bed was a table on which there was
a knife. The appellant slapped PW1
across the face while threatening her with the knife. Then the appellant undressed her and “raped”
her, while she was raising alarm. Then
the appellant, on being called, went out of the house and returned later. He locked the door. After a short interval PW1’s mother, Renald
Valentino (PW3) arrived being accompanied by PW2. They opened the door by force, enabling her
(PW1) to escape. PW1 went home and later
reported the incident to the police who sent her to hospital for examination. PW1 told the trial court that she felt a lot
of pains and bled a lot as a result of the appellant’s act. The appellant was arrested and charged
accordingly.
The
appellant admitted to have had a love affair with PW1 and together they had had
sexual intercourse on several occasions prior to the material day. Nevertheless he denied raping PW1 on that day
or at all. He claimed that on the day in
question he was at Dar es Salaam
The trial
court rejected the appellant’s defence of alibi. The learned trial Principal District
Magistrate taking PW1 to be a credible witness whose evidence was found to be
corroborated by the PF3 (Exhibit P1) as well as the evidence of PW3 and PW4, held that PW1 was raped by the appellant on
8/10/2001. The learned first appellate
judge dismissed the appellant’s appeal on similar grounds. She said:-
“The PF3 form, exhibit P1 corroborates the evidence of
the complainant because it shows that her private parts were bruised and
swollen and the hymen was ruptured causing bleeding. Under those circumstances the defence of
alibi was not the least probable …”
In this
appeal the appellant who was unrepresented raised eight grounds of appeal. All the same these can be condensed into
four, as follows:- One, the prosecution failed to prove the case beyond reasonable
doubt. Two, the prosecution witnesses contradicted each other and they
ought not to have been believed. Three, the two courts below erred in
relying on the evidence of closely related witnesses. Four,
there was non-compliance with the mandatory provisions of section 240 (3) of
the Criminal Procedure Act, Cap. 20, the Act henceforth.
At first
the appellant chose to say nothing in elaboration on these grounds of
appeal. He opted to hear first the
response of the respondent Republic on the same.
The
respondent Republic, which was represented by Mrs. Neema Ringo, learned State
Attorney, zealously defended the decisions of the two courts below. Mrs. Neema urged us to dismiss the appeal
because as the offence was committed in broad daylight the question of mistaken
identity of the appellant did not arise.
Furthermore, the complainant (PW1) was found in the appellant’s room by
credible witnesses, she maintained.
Carrying her argument further, Mrs. Neema pressed that the fact that PW1
was raped was put beyond reproach by the PF3 (exhibit P1). However, in response to the court’s question,
she conceded that the appellant was not informed of his rights under section 240
(3) of the Act and the contents of the PF3 were not read over to the appellant
at the time it was admitted in evidence.
Nevertheless, she was quick to point out that even if the PF3 is totally
discounted on account of these omissions, the evidence of PW1 was sufficient to
sustain the conviction.
The
submission by Mrs. Neema provoked a critical response from the appellant. He argued that the case against him was fabricated out of anger because he had cut
off the love relationship with PW1, who in June, 2001 had written to him
complaining of this situation. The
appellant had tendered in evidence PW1’s said letter of complaint as exhibit
D2. The appellant challenged the
submission that his conviction was based on credible evidence. He argued that that was not the case as the
prosecution witnesses contradicted each other on vital aspects of the
case. He wondered how PW1, who claimed
to have been undressed before she was raped, bolted out of his house and went
home fully dressed and why the knife he allegedly used to threaten PW1 was
never seized and/or tendered in evidence.
The appellant further questioned the credibility of the prosecution
witnesses who allegedly found him holding PW1 on the bed, why they never
arrested him.
Coming to
the grounds of appeal, we accept the conceded complaint that the mandatory
provisions of section 240 (3) of the Act were not complied with by the trial
court after exhibit P1 had been admitted in evidence. This Court has held on numerous occasions
that once the medical report as a PF3 has been received in evidence under
section 240 (1) of the Act it becomes imperative on the trial court to inform
the accused of his right of cross-examining the medical witness who prepared
it: See Kashana Buyoka v R,
Criminal Appeal No. 176 of 2004 (unreported) and Sultan s/o Mohamed v R,
Criminal Appeal No. 176 of 2003 (unreported).
The Court has, as a result, held that if such a report is received in
evidence without complying with the provisions of section 240 (3) of the Act,
it should not be acted upon. The Court,
in Sultan Mohamed’s case went
further and found the omission to have flawed the trial and ordered a retrial.
In the
trial under scrutiny, omission to comply with section 240 (3) was not the only
flaw. Another fatal flaw is that the
contents of Exhibit P1 were not even read out to the appellant. So the appellant was convicted on the basis
of evidence he was not made aware of although he was always in court throughout
his trial. In our settled view, these
two serious omissions which, unfortunately, escaped the attention of the
learned first appellate judge, wholly vitiated the evidential value of the
PF3. We shall accordingly discount it in
our judgment. But even if the PF3 had
been regularly received in evidence it would not have helped the prosecution in
so far as the finding of the two courts below was predicated on the fact that
PW1 had a “ruptured hymen”. What
would one have expected from a 20-plus year old woman who had had undisputed
sex on several prior occasions with, to mention only one, the appellant?
The
complaint that the two courts below erred in law in acting on the evidence of
witnesses who are closely related, has found no purchase with us. We are not aware and we were not referred to
any law which bars close relatives, family members, etc. from giving evidence
in support of the prosecution. What
counts, after all, is the competence of the witnesses and their credibility and
not the degree of their relationship.
We think
that the remaining two grounds of complaints can be properly discussed together. If the prosecution case was fundamentally
flawed by the alleged contradictions, it means the case was not proved to the
required standard.
That there
are contradictions and inconsistencies in the prosecution case was even
conceded by Mrs. Neema. She urged us,
all the same, to ignore them as they are inconsequential. These inconsistencies, unfortunately, are not
few and they seem to us not to be a result of mere memory lapses.
In her
evidence PW1 unequivocally told the trial court that shortly after being raped
by the appellant, PW2 and PW3 arrived, “opened the door by force” and she “managed
to run out” and went home. This
evidence is inconsistent with that of PW2 who also categorically testified that
“she
remained at the road” while PW3 went to the appellant’s home. She went on to say:-
“….. and not long, Selina (PW1) came running and we went
home”.
From the evidence of PW1 it is clear that she went home
alone. PW3 had her own version. She said:-
“I went and found people gathered at one house and I
heard my daughter crying. I kicked the
door which opened, then the inner door was also locked and I managed to open it
by force. I found accused holding my
daughter. She got out and ran away”.
Contradicting PW1, PW3 was categorical that she went to the
home of the appellant with Phillip Assenga (PW4).
Contrary to
the assertions of PW3, Philip Assenga (PW4) claimed credit for being the person
who actually broke into the house of the Appellant. Belying PW3 who had claimed that when she
broke into the house she found the appellant holding PW1 by the hand, PW4
testified that he found the appellant holding firmly PW1 on the bed. PW1 testified that when PW2 and PW3 entered
the house, the appellant clung to her in order to hold her back. This evidence was contradicted by PW4 who
claimed that as soon as he entered the house the appellant released PW1
immediately and she bolted out of the house.
With all these patent contradictions, we pause here and ask ourselves: who amongst these witnesses was telling the
truth? It is impossible to tell. That PW1 is a liar was further demonstrated
by PW4. In her evidence PW1 told the
trial court that she had known the appellant prior to 8/7/2001. However, when she was questioned by PW4 at
her home on 8/7/2001, she told him that the appellant was a stranger to
her. This was a naked lie, because she
had been in love with the appellant for quite some time. All these lies, contradictions and
inconsistencies taken together go to impeach the credibility of these witnesses. In our settled view, they go to strengthen
the appellant’s claims that the rape charge was a frame up.
The
prosecution case is further weakened by some other unsatisfactory
features. PW1 told the trial court that
after being undressed by the appellant and raped, she bled. Since PW4 found PW1 on the appellant’s bed
and going by his evidence without putting on an underwear, one would have
expected to see traces of blood either on the bed or on the floor. But neither PW3 nor PW4 said anything to that
effect. Although PW1 said that the
appellant threatened her with a knife which was on a table in the room where
the rape allegedly took place, we wonder why the said knife was not seized and
surrendered to the police and eventually tendered in evidence. Furthermore, if the appellant undressed PW1
before raping her and PW1 was found on the bed being held by the appellant, she
would definitely have been found naked.
Neither PW3 nor PW4 testified to that effect. At what point in time did PW1 get dressed? Her evidence also is silent on this. We have considered the claim by PW1 that
there came a time when the appellant was called and he went out of the
house. She never testified that she was
chained or something to that effect so as not to be able to move. If she were to be believed that she was taken
to the house of the appellant against her will and raped, what prevented her
from following the appellant outside and win her freedom? Another nagging question, for which we could
get no answer from the evidence on record is why was the appellant not arrested
forthwith. The evidence of PW4 is
unequivocal on the fact that after the appellant had let free PW1, they all
left, leaving the appellant behind in his house. This is both unbelievable and risible. How could a person who had committed such a
heinous crime be left behind? All these
shortcomings made the claims of PW1 implausible. Had the two courts below taken these
unsatisfactory aspects in the prosecution case into consideration, they would
not have readily taken the word of PW1 at its face value.
On our part, we are convinced that PW1
was not raped, otherwise the appellant would not have been arrested on
28/8/2001, nearly seven clear weeks after the day of the alleged rape. We believe the appellant was arrested not
because he raped PW1. He was arrested
because, as PW4 undisguisedly put it, PW1 Selina d/o Silayo:-
“was
taken to be married by force”.
This tells it all.
PW3 was, of course, anxious to save her daughter from contracting an
unwanted customary law marriage. She was
entitled to do so but she was not justified in faking a rape as a reprisal.
For the
foregoing reasons, we allow this appeal by quashing the conviction and setting
aside the sentences imposed on the appellant.
The appellant is to be released from prison forthwith unless he is
otherwise lawfully detained.
DATED at DAR ES SALAAM this 8th
day of November, 2007.
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