IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM:
KAJI, J.A., KILEO,J.A.,And
KIMARO, J.A.)
CRIMINAL APPEAL NO 7 OF 2007
ALLY
MKOMBOZI ……………………………………. APPELLANT
VERSUS
THE
REPUBLIC ……………………………………. RESPONDENT
(An
appeal from the judgment of the High Court of Tanzania
at
Arusha)
(Rutakangwa,J)
dated
this 14th day of July 2006
in
Criminal
Appeal No. 6 of 2004
…………………
JUDGMENT
OF THE COURT
23rd &
25th April, 2008
KIMARO, J.A.:
The appellant, Ally Mkombozi was
charged, convicted and sentenced to life imprisonment for raping Irene Adriano,
a very small child of 3 years of age. His appeal to the High Court was dismissed in
its entirety. Still aggrieved, the
appellant is protesting his innocence before us.
The appellant has filed three grounds of
appeal the effect of which amounts to saying that there was no sufficient
evidence to base his conviction. He
complained that in terms of the provisions of the Sexual Offences (Special
Provisions) Act, 1998 the offence of rape was not committed. He also faulted
the first appellate court for upholding his conviction while the trial
magistrate failed to assess the credibility of PW2. Lastly, the appellant wondered why neighbours
said to have visited the scene of crime were not summoned to testify for the
prosecution.
At the hearing of the appeal the
appellant appeared in person while Mr. Henry Kitambwa, learned State Attorney,
appeared for the respondent Republic. The learned State Attorney supported the
conviction and sentence.
Briefly, the evidence that led to the
conviction of the appellant was that Pamela Joachim, (PW3) the mother of Irene,
the victim of the offence, was on 16th October, 2002 at Mbauda
market where she carried on a business of selling charcoal, since 8.45am. She left the little girl at home. On the same day, at around 9.30 am Mary Masha,(PW2) a small
scale business woman, and a tenant in the house of PW3 returned home from her
business to take medicines as she was not feeling well. As she was in her room taking tablets, she
heard a child crying bitterly; and someone was telling it to keep quiet. The
child insisted to be left free. The witness went out to investigate what was
happening.
PW2 described what she saw as follows:
“I
then saw the accused holding the said child over his thighs. It was the accused who was holding the child
and the accused is normally known as Mgosi at Mbauda area. The trousers
of the accused were half dressed. In
other words, his trousers were open while the child was sitting on his
thighs. I then asked the accused as to what
he was doing with the child and he said “we are just playing together”. I saw the penis of the accused. Actually the accused was sitting down on the
floor and holding the child who was lying on his abdomen. The underwear of the child was on the floor.”
Further testimony of PW2 was that as she
lifted the child from the appellant a fight occurred between them, but neighbours
responded positively to her alarm and the appellant was overpowered. He was arrested by the people who turned up
at the scene of crime and was locked in a room of a tenant at the same house
until when the police were informed and took him to the police station. PW2 is
also recorded to have said:
“I
noticed a swollen part at the private part of the child. I also saw blood. She was bleeding from her private part.”
PW3 was informed about the ordeal to which she
promptly responded and returned home to see what had taken place. As she examined her little Irene, she saw her
bleeding from a swollen part in her vagina.
She also had bruises in her private parts. The incident was then
reported to the police where W.P. 1845 Corporal Agnes (PW4) attended to the
complaint. She also examined the little girl and confirmed that she suffered
the same injuries in her private parts as noted by PW2 and PW3. A PF3 form for
the examination of Irene was issued, and PW3 took her to Mount Meru Hospital
In his defence the appellant did not
deny being in the premises of PW3 where the offence was committed but denied
being the one who committed it.
Accounting for his presence there, the appellant said he went to demand
from PW2 payment for work he did for her, namely painting the house but had not
been paid. The appellant admitted that
himself and PW2 wrestled, and in that process PW2 struggled to pull down his
pair of trousers so as to create an impression to the public that the appellant
was trying to rape her. The trial magistrate disregarded the appellant’s
defence on the ground that it was not raised at the time PW2 testified in court
and so it was an afterthought. The
appellant was attempting to avoid conviction but as stated before, he was convicted
and sentenced to the statutory minimum penalty of life imprisonment as provided
for under section 131(3) of the Penal Code.
During the hearing of the appeal the
appellant attacked the prosecution evidence upon which his conviction was
based, contending that it was not water tight as there was a discrepancy in
time, and contradiction between the witnesses.
He also wondered why the prosecution failed to summon as witnesses the
neighbours who responded to the alarm raised by PW2; and their failure to
tender as exhibit the little girl’s underpants. In his opinion the offence of
rape could not stand as there were no traces of spermatozoa found in the vagina
of the complainant when she was medically examined. He prayed that the appeal be allowed.
On his part the learned State Attorney addressed
two questions of which he came up with positive answers. First, was the question whether the offence
of rape was committed? The evidence of all the four prosecution witnesses, (PW1
to PW4), the learned State Attorney contended, proved that the offence of rape
was committed. All of them said they
examined the victim of the crime and found her with a swelling in her vagina
and she was bleeding. The doctor (PW1)
the learned State Attorney said, was specific that injuries were caused by a
blunt object and possibly a penis.
We respectfully agree with the learned State
Attorney that all the prosecution witnesses gave same evidence on the kind of
injuries suffered by the victim of the crime.
The doctor was also particular on what could have caused the
injuries. He said it was a blunt object
and possibly a penis. PW2 saw the
appellant with his trousers half dressed, holding the little girl over his
thighs. She also saw his penis. When
PW2 asked the appellant what he was doing with the complainant his answer was
that they were playing. The appellant’s
argument that the offence could not be committed because no traces of
spermatozoa were found in the vagina of the victim is misconceived. The
essence of the offence of rape is penetration of the male organ into the
vagina. Sub-section (a) of section 130
(4) of the Penal Code Cap 16 as amended
by the Sexual Offences (Special Provisions Act) 1998 provides that; “for the
purpose of proving the offence of rape, penetration however slight is
sufficient to constitute the sexual intercourse necessary to the offence.” In Daniel Nguru & Others Vs Republic CAT (Criminal Appeal No. 178
of 2004) (Mwanza ) (Unreported) the Court remarked that penetration is not
proved by presence of semen on the body of the prosecutrix or bruises on her
vaginal region. In discussing what
amounts to penetration, the Court in Omary
Kijuu Vs Republic CAT Criminal Appeal No. 39 of 2005 ( Dodoma
“Thus
the doctor’s observation coupled with PW2’s evidence on how those bruises came
there, that is, they were caused by
a male organ, amounted to penetration and capable of proving the offence of
rape…”
With
the evidence which was before the trial court, the first appellate court was
entitled to uphold the conviction by the trial court. We find no reason for
disturbing this finding.
Second, was the question who committed
the offence? The learned State Attorney
was quick to point out that it was none other than the appellant. The evidence to prove this, argued the learned
State Attorney was in the evidence of PW2 and the defence of the appellant
himself. We also agree with the learned
State Attorney on this aspect. PW2 was
an eye witness to the commission of the offence. We quoted above; her portion of her evidence
describing what she saw the appellant doing.
In his defence the appellant admitted being at the scene of crime around
the same time the offence was alleged to have been committed. He was arrested
there. The defence which he gave
accounting for his presence at the premises was, as correctly observed by the trial court and
upheld by the first appellate court, an afterthought as this version of his
defence never featured in evidence when he cross examined PW2. If such a situation existed, it could not
have escaped his mind during the cross examination of PW2.
On the complaint by the appellant on the
discrepancy in time, we entirely agree with the learned State Attorney that it
was minor and could not have affected the conviction of the appellant. The record does not support the appellant on
his grievance that the prosecution evidence is contradictory. In fact it is the other way round. The evidence of the prosecution witnesses was
very consistent at all stages. As for
the omission by the prosecution to call witnesses from the neighborhood and
omission to tender the underpants of the complainant, our observation is that
what the prosecution was required to do was to prove their case on the standard
required. They were at liberty to sort
out which evidence they needed to establish their case. After all, it is not all evidence which comes
out during investigation is relevant for proving the case for the prosecution. This grievance lacks substance.
In the event, we find the appeal lacking
in merit and it is dismissed in its entirety.
DATED at ARUSHA this 25th day
of April 2008.
S. N. KAJI
JUSTICE
OF APPEAL
E. A. KILEO
JUSTICE
OF APPEAL
N. P. KIMARO
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
F. L. K.
WAMBALI
SENIOR DEPUTY REGISTRAR
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