Fakihi Mwamini v. Republic Cr app no 42 of 2005 (Rape case)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: MUNUO, J.A, NSEKELA, J.A AND KILEO, J. A.)

CRIMINAL APPEAL NO. 42 OF 2005

FAKIHI MWAMINI……………………..APPELLANT

VERSUS

THE REPUBLIC………………………………RESPONDENT

(Appeal from the decision of the High Court of Tanzania

at Mtwara)

(Lukelelwa, J.)

Dated the 17^th day of March 2005

In

H/C Criminal Appeal no. 25 of 2003.

----------------------------

JUDGMENT OF THE COURT.

8^th October 2007 & 17^th October 2007

KILEO, J.A.

The appellant was convicted of rape contrary to section 130 and 131 of the Penal Code, Cap 16 of the Revised Laws by the District Court of Newala. Evidence was led at the trial to the effect that he raped PWI, a child aged 11 years on 15/8/2001. He was sentenced to thirty years imprisonment. His appeal to the High Court was dismissed in its entirety and he has come to this Court on further appeal. He appeared in person at the hearing of the appeal. Ms Christine Maganga, learned State Attorney, represented the Respondent Republic.

The memorandum of appeal contains five grounds, which can be condensed into the following three grounds:

(a)That the testimony of PWI, a child of tender years, was not taken in accordance with the law.

(b) That the evidence connecting the appellant with the offence was insufficient.

(c) That failure to call the examining doctor weakened the case for the prosecution.

The appellant did not make any submission at the hearing.

Ms Maganga supported both conviction and sentence arguing that there was sufficient evidence, which established the case for the prosecution beyond reasonable doubt. She also argued that though the trial court had a duty to inform the appellant of his right to have the examining doctor to be summoned for cross-examination; however the absence of the doctor was not fatal to the case for the prosecution.

We agree with the learned State   Attorney that the case against the appellant was watertight, notwithstanding the fact that the doctor who examined the victim was not called to testify. To start with, there is no dispute that PWI was raped on 15/8/2001. She explained how on the material date the appellant who was a guest in their house entered the children’s room where she was sleeping and raped her. Her cries for help brought her uncle (PW2) into the room. He found the appellant half naked. PWI said in evidence that she felt pain when the appellant raped her.  PW3, who is the wife of PW2, also went into the children’s room after she heard PW1 cry out that she was being hurt. She also witnessed the appellant being half naked. She examined PW1 whom she found to have some bruises on her private parts. The victim was also smeared with some liquid substance on her private parts. According to PW3, the appellant admitted to have raped PW1.

The appellant’s complaint that the evidence of PW1 who was a child of tender years was taken without adherence to the law lacks merit for the record clearly indicates that a voire dire examination was conducted in terms of section 127(2) of the Evidence Act. The trial magistrate, after putting some questions to the child victim found that she was possessed of sufficient intelligence to warrant the reception of her evidence. He believed her testimony as well as the testimonies of the other witnesses.

As for the ground that there was non- compliance with the provisions of section 240(3) of the Criminal Procedure Act, it is true that this was the case. The said provision states as hereunder: -

        “240. Statements by medical witnesses

        (1)……………………

        (2) ……………………

(3) When a report referred to in this section is received in evidence the court may if it thinks fit, and shall, if so requested by the accused or his advocate, summon and examine or make available for cross-examination the person who made the report; and the court shall inform the accused of his right to require the person who made the report to be summoned in accordance with the provisions of this subsection.”

The record does not show that the appellant was informed of his right to require the person who made the report to be summoned for cross-examination. However, it has been held by this Court in the past that cross-examination of an examining doctor becomes relevant only where it is disputed that the victim was raped. See Criminal Appeal No. 50 of 2001 (unreported) between Shabani Ally and Republic. The appellant does not dispute that PW1 was raped. As a matter of fact, as we have endeavoured to show above, there was other evidence, apart from the Pf3 form establishing that the complainant was defiled. The appellant’s main complaint is that there is not enough evidence that he is the one who committed the crime. We are satisfied however, that the circumstances of this case leave no one in doubt as to the guilt of the appellant. He was found half naked in the room with the victim who had just been raped. There is no way he could avoid culpability.   His appeal is devoid of any merit and we accordingly dismiss it in its entirety.

DATED At DAR ES SALAAM this 17^th day of October 2007

E. N. MUNUO

JUSTICE OF APPEAL

H. R. NSEKELA

JUSTICE OF APPEAL

E. A. KILEO

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

S.M. Rumanyika

DEPUTY REGISTRAR

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