Nathan s/o Ruben v. R., Crim. App. 396-M-71, 31/5/72.

 Nathan s/o Ruben v. R., Crim. App. 396-M-71, 31/5/72.

            EL-KINDY, J. – Nathan s/o Ruben was charged with and convicted of rape contrary to sections 130 and 131 of the

Penal Code, Cap. 16, and he was sentenced to imprisonment for 18 months and to suffer corporal punishment of 20 strokes. He appealed against conviction, sentence and order ….. it appears that there was a party at Twiga Hostel, in Mwadui, on the 25^th of December, 1970. The party commenced at about 4 p.m. and ended at about 7.30 p.m. Amongst those who were present at the party were the complainant, Grace d/o Saudi (P.W. 1), the appellant, Nathan s/o Ruben, Florence d/o Kidongoi (P.W. 2), and Daniel s/o Kimaro (D.W.2). There was dancing and drinking. After the party, at about 8.30 p.m. these named people left the party hall. The two girls were then seen together with the appellant and Kimaro (D.W. 2) at a football ground which was about 30 paces from the intended bus stand. The appellant and the complainant retired into a place on the football ground and there they had sexual intercourse. Florence and Kimaro who were also paired, remained somewhere near where the other two who were having sexual intercourse. Thereafter the two girls went to the bus stop, boarded their bus and went away. The appellant and Kimaro went away also. It appears that there was nothing which led to the arrest of the appellant during that night. But while sexual intercourse was going on, William Francis Mgonja (P.W.3), who was with one Mbaga, passed through the football ground on his way to visit a friend of his when he heard “noises” from a distance, and he heard Florence say “release her, release her we want to go” and then he saw the complainant standing up from the ground off by a footpath. Ngonja and his friends were “dubious” of what was happening and they went away. The complainant then went to her parents and later, on the same day, she was examined by an Assistant Medical Officer (P.W.4), at Songwa .The Medical Officer assessed that the complainant was 15 years old and that her hymen was ruptured. The Medical Officer gave as his opinion that it was ruptured on the same day. He noted some bruises “on the external oss” but this description is, to me at least meaningless, as it seems to be in keeping with medical terminology which was not explained. The Medical Officer noted also that there “is a sign of Haematoma on both left and right elbow joints” and that there were some bruises on the back, and noticed “some leaves in the hair on the occipital region of head”. As I have said there is no dispute of sexual intercourse having taken place. The Medical Officer was of the opinion that the complainant was sexually assaulted” although, from a mere reading of his evidence, I am unable to see on what basis he reached that conclusion. However, this is not an important point in this case although the existence of various injuries tends to lend support to the prosecution’ s contention that violence was used in affecting sexual intercourse. The underpants, the black “simizi”, the “shaft green” and underskirt were examined by a Chemist in Dar es Salaam and this report confirmed the undisputed fact of sexual intercourse. The evidence did not show when the appellant was arrested but there is no doubt that he was arrested for the offence of rape. [The court then quoted ss. 130-131 Penal Code, and continued].

            The essence of the offence of rape is lack of consent on the part of the girl or woman. Therefore, for such a charge to succeed, the prosecution has to prove, beyond reasonable doubt, that the victim did not consent to the sexual intercourse. [The court then cited and quoted from the following cases as persuasive authority for this proposition: Ronald Hanling v. Rex, 26 Cr. App. R. 127; Robert Lesarian v. Rex, 50 Cr. App. R. 56]……..

And the issue, on appeal, is whether this burden of proof was discharged in this case. And, as the learned trial Magistrate properly directed himself, the issue was whether the sexual intercourse was performed without the consent of the complainant. He held there was no consent. I think, with due respect, this conclusion cannot be supported on the evidence, as it will be seen soon.

            To begin with, the complainant told the trial court that while at the party the appellant approached her and requested her if she could dance with him, but she turned him down. Florence said that the appellant “had grown some interest with Grace” although she did not state when this liking began – whether it was before or after the party or at the bus stand. Nevertheless, it is an admission which tended to show that the appellant and the complainant were, at least, not meeting for the first time at the bus stand, if one accepted the words of Florence. The appellant, in his evidence, did not say anything about dancing with the complainant, but Kimaro (D.W. 2) said that he saw the appellant and the complainant dancing together during the party. The learned trial Magistrate considered this aspect of the case, but reached no conclusion one way or the other. However, his comments – “(T)his is what the complainant and her friend (Florence) have invited me to believe” – indicated neutrality if not suspicion of what the two girls told him. There was, therefore, evidence which tended to suggest that probably the appellant and the complainant had met before as the appellant himself contended in his petition of appeal. He said that they had sexual intercourse before the evening following the party.

            The complainant continued to say that the appellant and “another boy” followed them as they went to the bus stop, and that when they reached them, the appellant “pulled me (her) by the hand” but she resisted. She said he was “violent”. This suggested that the appellant did not even talk to the complainant before he held her although his evidence suggested that they were well acquainted. She told the trial court that the appellant pulled her hand and forcibly led her to the football ground where he pushed her to the ground. She said the appellant told her that he would teach her a lesson, overpowered her, and pulled down her underpants. She said that although the football ground was only 30 paces away, nobody appeared in response although “eventually” tow people appeared where she was with the appellant. She said that the appellant then pulled himself up and went to stand with his friend. In other words, the appellant did not even run, or go far away so as to suggest that he was feeling guilty over something he did. She alleged that when the appellant was pulling her away, the appellant’s friend, who is Kimaro (D.W. 2), was also pulling away Florence, but Florence denied that she was pulled away. The difference, minor though it appears, is not insignificant to the case. Later on she said, and I quote her evidence “It was after I had heard people speaking to Florence that I screamed”. This part of her evidence is important, as it showed that the complainant did not begin to scream, I she did that at all, until she heard people approaching. The people referred to were Mngonja (P.W. 3) and his friend.

            Florence gave evidence in support of her friend. She alleged that she saw the appellant pull away the complainant, undress her, and have sexual intercourse with her near the goal post at the football ground. She alleged that the appellant was accompanied by another man she did not know and yet she had been talking with this man (Kimaro) for sometime. However, later she admitted that the “other man was attempting to seduce me (her)”. She said she sat down “screaming for help” and watched what was happening”. She admitted that William Mgonja (P.W. 3) and his friend passed there but they advised her to take no steps. This was strange. If she had been really screaming and calling for help, it is inconceivable that Mgonja and his colleague would simply advise her to take no steps.

            The next witness was Mgonja (P.W.3) He said that when he was passing through the football ground, he heard some noises somewhere on the ground and the somebody said “release her, release he we want to go”. Mgonja said these words were said by Florence who he saw standing there. With due respect to the learned Magistrate, he misunderstood these words, as he thought that it was the complainant who said them. If he had carefully read the evidence of Mgonja, he would have avoided the error he fell into. In my view, this misunderstanding contributed to a large extent to the learned Magistrate’s misapprehension of the evidence. It will be useful to quote further the evidence of Mr. Mgonja, whose evidence was relied on by the learned Magistrate. Mgonja continued to say:-

            “We asked her what was happening. She said

            the accused (appellant) was raping her friend

            a  few paces from there. We were unable to

            see the accused and Grace as they were far

            off, at about 100 yards. We asked her why

            she was not screaming for help. Florence would

            not answer. As we were still wondering what

            to do we saw the two parting. Then Grace

            came to us. We heard no screams from her,

            even when she came to us she was not screaming,

            nor crying she looked sad as if something

            peculiar had happened to her”.

            Mgonja said that he did not see the appellant. And finally, he said that although the complainant “looked haggard” the circumstances in which they found the appellant and the complainant gave them “a dubious picture of what was happening”, because if anything was serious, he and his friend would have heard cries. With respect, this evidence totally destroyed the case for the prosecution. The allegation of force is totally contradicted, and leaves the impression that the complainant must have agreed to the act of sexual intercourse, but she found herself embarrassed because they had been found out by Mgonja, and then show began to create a story so as to clear her name and reputation which could not be said to have been untainted. As it can be seen, the only independent witness, Mgonja, told a story which raised a serious doubt as to lack of consent on the part of the complainant. His description would have been entirely different, had he noticed the facts which the complainant and Florence alleged. If what the two girls told was the truth, Mgonja would not have failed to give

evidence on them. With what he saw, I am not surprised to see that he was “dubious” about what was happening. The appellant has all along maintained that he had sexual intercourse with her consent as she was his girl friend. Having regard to the evidence, it cannot be said that the defence had no substance at all. The prosecution, through the evidence of Mgonja, who was probably called to supply the necessary corroboration, led evidence which raised serious doubt on lack of consent. The prosecution did not discharge the burden of proof required to establish that Grace, the complainant, did not consent to the said sexual intercourse. Also the fact that the complainant was medically examined soon after the incident, and took no steps to have the appellant arrested by people who must have been at the bus stop, reinforces the existing doubt. For these reasons, the conviction could not be upheld. And for the same reasons, the learned State Attorney, declined to support this conviction.