IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: RAMADHANI, C.J., MROSO, J.A. And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 227 OF 2007
SAIDI
HARUNA ………….……………………….….….. APPELLANT
VERSUS
THE
REPUBLIC ………………………………….….... RESPONDENT
(Appeal from the Decision of the High Court of
Tanzania
at
Moshi)
(Munuo,
J.)
dated
the 1st day
of July, 2002
in
Criminal Appeal No. 14 of
2002
------------
JUDGMENT
OF THE COURT
29 October & 30
November, 2007
MROSO, J.A.:
This is one
of the many rape cases in the Arusha-Kilimanjaro areas coming on appeal to this
Court during the sessions. The appellant
was prosecuted and convicted for the rape of a girl believed to be 15 years
old. He was sentenced by the trial court
to a prison sentence of thirty years and ordered to pay to the victim of the rape shs. 30,000/= as compensation or to
suffer distress in default. In addition,
he was ordered to refund to the complainant the sum of Tshs. 30,000/= which was
stolen from her at the time of the rape.
Corporal punishment was not ordered by the trial court. His appeal to the High Court against
conviction and sentence was dismissed.
He has resorted to this Court.
His memorandum
of appeal contains five grounds of appeal and he did not have additional
grounds at the hearing of his appeal.
The five
grounds of appeal can be condensed into 3 substantive grounds of
complaint. First, that there was no credible and admissible evidence
implicating him in the rape charge. Second, that there was no evidence
proving rape and that the complainant’s claim that she was raped was not
corroborated by the medical evidence which was adduced. Third,
that all the evidence which was adduced did not prove the charge to the
required standard in a criminal case.
Before discussing those grounds it is desirable to give a brief
background information on the case which resulted in the conviction for rape
against the appellant and another who, it seems, has not appealed.
On 16th
February, 2001 at between 17:00 hours and 19:00 hours one Rehema Abdukarim
(PW1), a girl of about 15 years of age, was walking from Moshi town to Njoro on
the outskirts of the town where she resided with her aunt, Monica Alfonsi,
PW2. On the way, in the Njoro forest, some
four young men raped her in turns and stole from her 30,000/= which her aunt
Monica Alfonsi (PW3) had given her as fees for training as a tailor. She had been tricked into going into the
forest by the young men who claimed they could magically make money to
multiply.
After she
was raped she walked away towards her home but on the way she met a neighbour,
one Hamduni Hamza, PW2, who escorted her to her home. At the time she met Hamduni the rapists were
following behind and Hamduni claimed to have seen them but could only identify
one of them, the first accused in the case at the trial who was convicted in
absentia along with the appellant who was the second accused at the trial.
When she
reached the home of Monica (PW3) she narrated her ordeal. Monica took her to Majengo Police Station
where she was issued with a PF3. She
took it to Mawenzi
Hospital
The first
accused at the trial was arrested on 29/5/2001 by DC Elirehema (PW5) allegedly
because he (1st accused) had absconded after the rape. Curiously, however, on 30th April,
2001 WP Detective Corporal Frida (PW6) took a caution statement from the same 1st
accused, suggesting that he had been arrested earlier than 29/5/2001. The assumption would be that after he was
arrested he absconded and was re-arrested on 29th May, 2001.
In the
caution statement which was recorded by WP Detective Corporal Frida the 1st
accused at the trial admitted to raping Rehema (PW1) and that he was with other
people including a certain Said. The
second name of Said was not given.
According
to DC Elirehema (PW5) the appellant (as 2nd accused at the trial)
was arrested by undisclosed people after he was pointed out by the complainant
– Rehema. That piece of evidence is
hearsay because Rehema did not say so in her evidence. The appellant himself did not say when he was
arrested although he said the militia arrested him. He explained that on the day of the rape he
was away in – porini – Mererani in search for minerals. With this background we think it is now
appropriate to consider the appellant’s grounds of appeal as re-cast by the
Court.
Was there
credible and admissible evidence which implicated the appellant?
Rehema
(PW1) said the second accused was one of the young men who walked along with
her as she went in the Njoro direction and subsequently to the Njoro forest
where she was raped also by the “2nd
accused”. If, in fact, the appellant
was one of the people who walked along with Rehema and as it was then around 5
pm which was daytime, it would be possible for Rehema to recall his appearance
if she saw him again later. But since
there was no claim by Rehema that she knew the appellant before the date of the
incident, which means the appellant may have been a stranger to her, there was
need for an identification parade but none was staged. If there was admissible evidence that it was
she who pointed him out to be arrested as claimed by DC Elirehema (PW5), that
might confirm that she was able to remember the appellant. But as already pointed out, that evidence was
hearsay. Rehema did not give evidence in
that connection and no witness from among the militia people who arrested the
appellant gave evidence to explain the circumstances which led them to arrest
the appellant. We think this weakness in
the prosecution case is a result of poor prosecution of cases in which loose
ends are often left untied. We think,
therefore, that there is merit in the first ground of appeal as recast.
The second
ground of appeal was that there was no proof that Rehema was in fact raped and
that her claim that she was raped was not supported by the medical evidence
which was given at the trial.
It is true
that there is only the word of Rehema that she was raped consecutively by four
people including the appellant. Her aunt
Monica (PW3) did not, as usually happens, examine her in her private parts to
look for any taletell marks of sexual violence.
When deep vaginal swab was taken to check for the presence of
spermatozoa on the following day, none were found. The Doctor, PW4 – examined her three days
later but could not see any bruises around the genitalia and the tear of the
hymen was not recent. For a 15 year old
person who claimed she had been raped by four young men in turns, it is
surprising there would be no bruises on the vagina wall. We also find it naivé that rapists – cum –
robbers, after the event would walk following their victim only five meters
behind as claimed by Rehema in her evidence.
Would they be offering themselves for evidence to people like Hamduni
Hamza? We think there is real doubt
indeed if rape was in fact committed on Rehema.
It may well be that having been lured into the forest and losing the
30,000/= to tricksters she had to find an explanation to give to her aunt, PW3.
The trial
court partly based the conviction of the appellant on the caution statement of
the first accused at the trial in which it was written that a certain Said
participated in the rape and theft of the money. Apart from the fact that the truthfulness of
the caution statement was untested because the first accused did not stand
trial to the end, there is no certainty that the Said mentioned in the
statement was the appellant Saidi Haruna.
The appellant raised an alibi that on the date of the alleged rape he
was in Mererani looking for minerals.
The trial
court did not at all allude to the alibi but simply dismissed the defence of
the appellant “for lack of support”. Here presumably the trial magistrate expected
the appellant to give sufficient evidence to prove he did not commit the
offence. That was a serious misdirection
in law because an accused person does not have the burden of proving his
innocence.
The first
appellate court assumed that the Said who was mentioned in the caution
statement of the first accused was the appellant. Since the first accused did not give evidence
in which he could have been cross-examined as to which Said he meant, assuming
he would have owned that statement, it was a misdirection for the first
appellate court to make the assumption it did, taking the caution statement as
corroboration of the claim by Rehema that the appellant was one of the four
people who raped her. It was not
correct, therefore, for the first appellate court to make the bold statement
that there was not “the least doubt that
Rehema Abdulkarim ….. was raped by the four gangsters including the appellant”. As already indicated there is doubt in the
first place if Rehema was in fact raped, and, secondly, doubt, if she was
raped, the appellant was one of the rapists.
The High Court too, made no comment on the alibi which was raised by the
appellant. We think that in the absence
of clear evidence that the Said who was mentioned in the first accused’s
caution statement was the appellant, the alibi may well be true.
The learned
State Attorney, Mr. Mzikila, could not support the judgments of the two courts
below and for the reasons which we have given, the two courts below erred in
not acquitting the appellant. We
therefore, allow the appeal by quashing the conviction and setting aside the
sentence and compensation order. The
appellant is to be set free unless held for some other lawful cause.
DATED at DAR ES SALAAM this 21st
day of November, 2007.
A. S. L. RAMADHANI
CHIEF
JUSTICE
J. A. MROSO
JUSTICE
OF APPEAL
E. M. K. RUTAKANGWA
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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