IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 222 OF 2004
CHRISTOPHER RAFAEL MAINGU
…..….… APPELLANT
VERSUS
THE
REPUBLIC ….……..……………….…. RESPONDENT
(Appeal
from the Judgment of the High
Court
of Tanzania at Mwanza)
(Masanche,
J.)
dated
the 9th day of August, 2004
in
High
Court Criminal Appeal 240 of 2003
-------------
JUDGMENT
OF THE COURT
28 February & 16
March 2007
RUTAKANGWA,
J.A.:
The
appellant was arraigned before the District Court of Musoma for raping one
Doricasi d/o Bisanda, c/ss 130 (1) (2) (e) and 131 of the Penal Code. The full particulars of the charge read as
follows:-
“That
Christofa Rafael Maingu charged on the 27 day of July, 2001 at about 10.00 hrs.
at MAMAUCHUMI GROUP NURSERY SCHOOL
Majita Road
The appellant did unequivocally deny this charge at the
commencement of his trial.
At the
outset, we wish to make it clear that in order to prove the guilt of the
appellant as charged beyond any reasonable doubt the prosecution had to prove
that:-
(a) the
appellant had carnal knowledge of Doricasi d/o Bisanda on 27th July,
2001,
(b) there
was penetration, however slight it might have been and
(c) the
said Doricasi d/o Bisanda was a girl below 18 years of age and as such even if
she had consented to the sexual intercourse, that was immaterial.
To bring home the guilt of the appellant the prosecution
called four witnesses in all. These were
the alleged prosecutrix herself who testified as PW1, PW2 Sara Bisanda (the
mother of PW1), PW3 Dr. Mlekwa and PW4 WP 1262 D/Sgt. Neema. To prove his innocence, the appellant
testified on oath categorically denying having had any sexual relationship with
PW1 Doricasi at all, and he called DW2 Fatuma Charles and DW3 Thomas Tudoh to
support him.
The trial court
was very much impressed by the four prosecution witnesses. It accordingly took their evidence to be
nothing but true, rejected the defence case calling it “very unsound rendering
no reasonable doubt on the well established prosecution case”. The appellant was accordingly convicted as
charged. He was sentenced to life
imprisonment and ordered to pay PW1 Doricasi, TShs. 200,000/= as compensation.
The
appellant was aggrieved by the entire decision of the trial District
Court. He appealed to the High Court of
Tanzania at Mwanza. The High Court
(Masanche, J.) dismissed the appeal in its entirety. Still aggrieved he has lodged this appeal.
In this
appeal the appellant, through the services of Mr. Byabusha, learned advocate,
initially came up with three grounds of appeal.
At the hearing of the appeal, Mr. Byabusha, with the leave of the Court,
filed a supplementary memorandum of appeal containing three grounds of appeal.
After going
through the six grounds of appeal and hearing learned counsel for both sides,
we are satisfied that this appeal can be satisfactorily and conclusively
disposed of on the basis of grounds one and three in the initial memorandum of
appeal. They read as follows:
“1. That the Honourable trial judge (sic) having
held that … ‘penetration, however
slight is penetration in the law of rape’, failed to go further and hold
that on the facts and evidence such slight penetration was not proved beyond
reasonable doubt (emphasis supplied).
3. That the Honourable trial judge (sic) erred in
relying on extraneous evidence on the date the alleged rape was committed and
the improper movement of PW1 Doricas d/o Bisanda”.
In order to appreciate the force behind
these two grounds of appeal, a quick look at the prosecution case is
unavoidable. It went as follows:-
Prior to 27th July, 2001 PW1
Doricasi was having her nursery education at Mama
Uchumi Group
Nursery School within the township of Musoma
According to PW2 Sara, on 27th
July, 2001, PW1 Doricasi returned home from school at about 12.00 p.m. PW2 Sara took the opportunity to ask her
daughter (PW1) about the person who was collecting exercise books in their
class for the purpose of taking them to their class teacher. PW2 Sara was very categorical in her evidence
that she was prompted to so ask PW1 Doricasi, because she had heard comments
from her (PW1’s) school master to the effect that it was common knowledge to
them that PW1 Doricasi was doing “shameful things” with her teacher. The response of PW1 Doricasi was that it was
herself. She hastened to add that the teacher was the appellant and that when
she was taking the exercise books he (appellant) was undressing her and “inserting
his penis in her vulva” and after satisfying his desires he was rubbing “off
the white fluid using a white a cloth”.
On receiving that information PW2 Sara examined Doricasi’s vulva. She found her hymen “ruptured to the extent
of allowing through a small hand finger (sic)”.
That day was a Friday. The
following Monday they reported the matter to the police. PW4 WP 1262 D/Sgt. Neema issued PW1 Doricasi
with a PF3 and PW1 was referred to Musoma government hospital for medical
examination.
At the hospital, PW1 Doricasi was
examined by PW3 Dr. Mlekwa, a Principal Medical Officer. In the opinion of PW3 Dr. Mlekwa, PW1
Doricasi was aged between 5 to 6 years.
Although he found no sign of pain or bleeding, he found out that PW1
Doricasi’s “hymen had an enlarged opening to allow a small hand finger to
penetrate”. The doctor ascribed this
fact to three possibilities. These are, firstly, injuries during playing, secondly, being ruptured during sexual
intercourse, and thirdly, any
foreign article entering the vagina. The
appellant was accordingly charged.
In
convicting the appellant, the learned trial Principal District Magistrate,
after finding PW1 Doricasi to be a very truthful witness accepted her version
that she:-
“…
was being raped by the accused who used to rub his penis on her vulva and
passing out white fluid …”
He was satisfied that this piece of evidence, as
supported by that of PW3 Dr. Mlekwa, proved the guilt of the appellant to the
hilt. The learned appellate judge was
emphatically of the same view.
In view of
this evidence, which was categorically disputed by the defence, was it proved
beyond reasonable doubt that the appellant had sexual intercourse with PW1
Doricasi on 27th July, 2001 as charged? If the answer to this issue is in the
affirmative, then it will be held without further discussion, that the
appellant raped PW1 Doricasi as she was a girl below 18 years of age.
Submitting
on the third ground of appeal, Mr. Byabusha urged us to find and hold that the
prosecution evidence does not show that the appellant carnally knew PW1
Doricasi on 27/07/01 or on any other date prior to that date. He was emphatic that it was crucial to the
prosecution case that evidence be led on the specific date when the appellant
had carnal knowledge of PW1 Doricasi.
There is no iota of evidence on record to show this, he argued. He went on to submit that since the
prosecution abysmally failed to bring evidence to prove that the appellant
carnally knew PW1 Doricasi on any specific day, leave alone the 27th
of July, 2001, then the charge against him was not proved at all. In support of his submission he referred us
to the decision of the Court in Ryoba
Mariba @ Mungare v. R., Criminal Appeal No. 74 of 2003 (unreported). He accordingly prayed that the appeal be
allowed on this ground alone although he made equally interesting submissions
on the other five grounds of appeal.
Mr.
Bulashi, learned State Attorney, on behalf of the respondent did not resist the
appeal. He submitted briefly but
precisely on these two grounds of appeal supporting each one of them. He was, finally, of the view that on the
evidence on record it could not be held with certitude that PW1 Doricasi was
raped at all.
Having
regard to the entire prosecution evidence on record, we are respectfully in
agreement with Mr. Byabusha and Mr. Bulashi in their submissions. Evidence to show that the appellant had
carnal knowledge of PW1 Doricasi on 27th July, 2001 or any other
specific date prior to his being charged was crucial and unavoidable. Such evidence, unfortunately, is patently
wanting in this case. From the evidence
available it cannot be held without demur that the appellant raped PW1 Doricasi
on any day prior to his arrest and arraignment.
But we hold without any fear of being contradicted that there was no scintilla
of evidence tendered by the prosecution leading even to an inference that the
appellant had sexual intercourse with PW1 Doricasi on 27th July,
2001. In almost similar circumstances,
this Court in Ryoba v. R. (supra)
held that it was incumbent upon the Republic which had charged Ryoba Mariba
with raping one Sara Marwa on 20/10/2000 to lead evidence showing exactly that
Sara was raped on 20/10/2000. Sara had
only testified generally, as did PW1 Doricasi in this case, that she “was raped
in October and November, 2000 without more”.
It was held by this Court that the evidence had failed to prove that
Ryoba had raped her on 20/10/2000 which was the specific charge he was facing
and was required to answer. We are
respectfully of the same view.
In the
total absence of positive and cogent evidence to establish that the appellant
had carnal knowledge of PW1 Doricasi d/o Bisanda on 27th July, 2001
it would be improper in a criminal charge to assume that the prosecution proved
its case even on a balance of probabilities.
Both the trial court and the first appellate High Court, therefore, were
wrong in holding that the prosecution had proved its case against the appellant
beyond reasonable doubt. On this ground
alone, therefore, we find ourselves constrained to allow this appeal in its
entirety.
For the
reasons given above, the conviction of the appellant is quashed and the
sentence of life imprisonment set aside. The order for compensation is also quashed
and set aside. The appellant to be
released from prison forthwith unless he is otherwise being lawfully held.
DATED
at MWANZA this 16th day of March, 2007.
D. Z. LUBUVA
JUSTICE
OF APPEAL
J. A. MROSO
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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