IN THE COURT OF APPEAL OF
AT ARUSHA
(CORAM:
RAMADHANI, C. J., MROSO, J. A. And KAJI, J. A.)
CRIMINAL
APPEAL 172 OF 2005
BAKARI HAMISI..........................................................
APPELLANT
VERSUS
THE REPUBLIC..........................................................
RESPONDENT
(Appeal from
the Conviction of the High Court of
(Rutakangwa,
J.)
Dated the 3rd
day of August, 2005
in
High Court Criminal Appeal No. 3 of 2004.
JUDGMENT
OF THE COURT
24 October, & 30
November,2007
KAJI, J, A.:
In the District Court of Babati in
Criminal Case No. 226 of 2002, the appellant, Bakari Hamisi, was charged with
and convicted of the offence of rape contrary to sections 130 (2) and 131 of
the Penal Code, Cap.16, as amended by the Sexual offences Special Provisions
Act No. 4 of 1998. He was sentenced to thirty (30) years imprisonment, and was
ordered to pay the victim of the rape Hafsa d/o Mwinyi Hamisi (PW2) shs.
100,000= as compensation. He was aggrieved. On first appeal his appeal was
dismissed for want of merit. Still protesting his innocence he lodged this
appeal.
The facts of the case as reflected in
the record may briefly be stated as follows:-
On 30/8/2002, at about 1 pm, Hafsa d/o
Mwinyi Hamisi (PW2) was on her way to Singe Secondary School Babati
Government Hospital
(3)
Genital area. (4) Dangerous harm. (5) Sexual intercourse. He concluded with a
remark “dangerous harm”. The appellant
was arrested and charged as already indicated.
In his defence the appellant denied the
allegation of rape and raised a defence of alibi that at the material time he
was at another area in Nangara village loading and carrying bricks in a lorry
to Babati Town
He
called Bakari Issa (DW2) and Seleman Shabani (DW3) who supported him that they
were with him on the job from 9.00 Am till 3.00 Pm. The trial Magistrate was
not impressed. He convicted him and sentenced him as above.
In his petition of appeal in this Court
the appellant preferred four (4) grounds and later added two (2) making a total
of six (6) grounds. However at the hearing he abandoned grounds Nos. 1 and 4
and proceeded with the remaining 4 grounds which may conveniently be
paraphrased as follows:-
One,
that the prosecution did not prove his guilt beyond all reasonable doubt.
Two, that the PF 3 did not
show that PW2 was raped.
Three,
that PW2 and PW4 were from the same family, and that their evidence ought to
have been accorded less weight.
He
did not wish to elaborate on them.
He
preferred the learned state Attorney to respond to those grounds and thereafter
he would give his rejoinder. Responding to these grounds Mr. Henry Kitambwa,
learned State Attorney, who advocated for the respondent Republic, submitted
that the prosecution proved the guilt of the appellant sufficiently through the
evidence of PW2, the victim of the rape, PW3 who medically examined her and formed
an opinion that there was sexual intercourse, and PW4 who saw the appellant
running away from the scene. The learned State Attorney pointed out that the mere
fact that PW2 and PW4 were from the same family did not water down their
evidence as long as they told the truth. In his view they told the truth.
In a short but strongly argued rejoinder
the appellant complained that the doctor, PW3, was allowed to tender a school
exercise book in which he had recorded differently from what is in the PF3, and that he tendered it on
a different day and not on the day when he tendered the PF3. He held the view
that the observations in the exercise book were cooked up to implicate him. The
appellant challenged his identification by PW4 on the ground that PW4 did not
say how far she was when she alleged she saw him running away from the scene.
He held the view that the case was a frame up by PW2 who previously had accused
him of house breaking and stealing in Babati Criminal Case No. 91 of 2003. He
said he was convicted by the trial court but was acquitted on appeal.
On our part, we have carefully
considered whether, on the evidence on record, it was sufficiently proved that PW2
was raped, and if so, whether it was sufficiently proved that it was the
appellant who raped her.
According to the prosecution, the
evidence which proved that PW2 was raped was that of PW2, PW3, the PF3 Exhibit
P. 1. and the school exercise book Exhibit P5. We have carefully considered the
contents of the PF 3 exhibit P. 1. As indicated earlier on, PW3 had simply
recorded “raped case, genital area, dangerous harm, sexual intercourse”. We ask ourselves; were these
particulars/observation sufficient to enable PW3 to form an opinion that Pw2
had been raped? In our view they were not, and it is not clear to us what made
PW3 form an opinion that there was sexual intercourse. We note from the record that the exercise
book was tendered and admitted as exhibit P5.
It contains some particulars which could corroborate the act of
rape. For example, one particular
indicates that some sperms were found, presumably in PW2’s private parts (vagina).
The appellant complained that this exhibit was probably fabricated to implicate
him.
The
learned trial magistrate discarded the evidence pertaining to this exhibit, but
held the view that the PF3 proved conclusively that PW2 was raped. Why he held
so is worth to reproduce the relevant part of the judgment which reads:-
“As I have pointed out that
I will discuss the legality of the document in the course of my judgment, now
it is my turn to discuss the same PW3 who is the medical officer conducted the
examination to find out whether or not the complainant was raped, filled the PF
3 he was supplied by the police, and inserted the words as “Genital area” as
area affected and “Dangerous harmful” on the nature of the injury, and “Sexual
intercourse” on what kind of weapon used. I think the report was enough to lead
any learned person to reach a conclusion that the victim was raped and
therefore, there was no any need to produce any other document concerning the
same thing. The PF 3 supplied to him was enough to be used to furnish all the
important reports of the medical Examination. I therefore declare the so-
called Exhibit P5 not legal and it cannot be acted upon by this court in
reaching the conclusion that the victim (PW2) was raped by the accused, but it
is the PF 3 which is relied upon though not well furnished with all the reports
of medical examination.”
Admittedly,
we cannot claim to have understood well the learned magistrate. But we think
that, after holding the view that the particulars in the PF 3 were enough to
lead any learned person to reach a conclusion that the victim was raped, he
held the view that there was no need to produce any other document concerning
the same thing. That would appear to be the reason why he held the PF 3 to have
corroborated the evidence of PW 2 that she was raped, and why he discarded the
evidence pertaining to exhibit PF 5. We have already expressed our view why we
think the particulars in the PF 3 were not enough to lead to the conclusion that
PW 2 was raped.
Unlike the trial magistrate who relied
on the PF 3 exhibit P. 1 and held the same to have corroborated the evidence of
PW 2 that she was raped, and discarded the evidence pertaining to exhibit P 5,
the learned judge on first appeal appears to have said nothing on the PF 3 but held exhibit P5 to have corroborated the
evidence of PW 2 that she was raped.
We
say so in view of his observation in his judgment where he remarked:-
“When examined shortly later by PW3 Dr. Sossiya she was not only
found disheveled, as Ms Sarakikya neatly put it, but also bleeding and
spermatozoa were found in her vagina..... the presence of spermatozoa strengthened
her claim that she had been raped.”
With
great respect to the learned judge, we don’t think exhibit P 5 is all that
worth. We say so for the following reasons:-
First,
exhibit P 5 is a school exercise book. There was a PF 3 which is normally used
by doctors in matters of this nature to fill in their observation in examining
the victim. We ask ourselves: why did the doctor (PW 3) fail/omit to fill the
PF 3 exhibit P 1 with those observations and instead elected to record them in
a school exercise book? A school exercise book is not normally used by doctors
to express their observations in matters of this nature. Where a doctor departs
from this procedure, as in the instant case, we would expect to know the reason
why he decided to do so. In the instant case no reason/ explanation was given.
Second, PW 3 tendered the PF 3
exhibit P 1 on 7/3/2003. He tendered the school exercise book exhibit P 5 on
25/8/2003, after a period of over five (5) months. We ask ourselves:- why did
it take so long? There was no explanation given. This strengthens the
appellant’s complaint that it was probably concocted to implicate him,
especially having in mind the appellant’s allegation of bad blood between him
and PW 2. As indicated above, the trial magistrate discarded the evidence
pertaining to this exhibit. In view of what we have stated above, we think he
was right.
Having expressed our view on the
shortfalls in exhibit P 1 and exhibit P 5, we ask ourselves: what is the
position of the oral evidence of the maker (PW 3)? In our view those shortfalls
rendered the oral evidence of PW 3 of very little evidential value, if any.
After disregarding the evidence pertaining to exhibits P 1 and P 5 and that of
PW 3, there is not other evidence which corroborated the act of rape of PW2. We
are mindful of subsection (7) of Section 127 of the Evidence Act, which was
introduced by the Sexual offences Special Provisions Act, 1998, which allows a
conviction to be founded on uncorroborated evidence of the victim of the rape
if the court believes, for the reasons to be recorded, that the victim witness
is telling nothing but the truth. In the instant case, the learned trial
magistrate did not state specifically whether PW 2 was truthful and the reason
for so saying. The doubt is to be resolved in favour of the appellant.
Having held the view that the
prosecution did not prove beyond all reasonable doubt that PW 2 was raped, our
second question of whether it was the appellant who raped her becomes
superfluous. However we may remark in passing that, PW 4’s assertion that she
saw the appellant running away from the scene and identified him to be Bakari
Hamisi, is not free from doubt. We say so because PW 4 did not say how far she
was from the suspect when she saw him running, and how she saw and identified
him to be the appellant, in view of PW 2’s assertion that it was in a bush. We
think it was dangerous to hold that PW 4 properly identified the appellant and
that her evidence supported the evidence of PW 2 that it was the appellant who
raped her as held by the two courts below.
Lastly, there is one point which we
think we should address, although not raised as a ground of appeal and was not
brought to the attention of the judge on first appeal. It refers to change of
magistrates.
According
to the record, the prosecution evidence was recorded by H. H. M. Tuwa (DM). The
defence evidence and the judgment were recorded by M. H. M. Seenene (DM). There
is nothing in the record suggesting that section 214 of the Criminal Procedure
Act was explained to the appellant or that the appellant elected that Seenene could
proceed from where Tuwa had ended. This was an error. However there is nothing
suggesting that the appellant was prejudiced. The fact that he did not raise it
as a ground of appeal suggests that, even if section 214 would have been
explained to him, he would have preferred Seenene to proceed from where Tuwa
had ended.
According to all that we have stated
above, we are of the firm view that, had the learned judge on first appeal
taken the approach we have taken, he would have held the view that the prosecution
had not established the guilt of the appellant beyond all reasonable doubt, and
would have allowed the appeal.
In the event, and for the reasons stated
above, we allow the appeal, quash the conviction and set aside the sentence and
the compensation order. The appellant is to be released from prison forthwith
unless lawfully held.
DATED
at DAR ES SALAAM this 8th day of November, 2007.
A. S. L.
RAMADHANI
CHIEF
JUSTICE
J. A.
MROSO
JUSTICE OF APPEAL
S. N.
KAJI
JUSTICE OF APPEAL
I certify that this is a true copy of
the original.
S. M.
RUMANYIKA
DEPUTY REGISTRAR
Delivered under my hand and Court
Seal in Open Court
at ...........................
this................... day of ..............................
.............................
DEPUTY REGISTRAR
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