IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: RAMADHANI, C.J., KAJI, J.A. And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 18 OF 2007
SHABANI
AMIRI………………………………………………APPELLANT
VERSUS
THE
REPUBLIC………………………………….………….RESPONDENT
(Appeal
from the Decision of the High Court of
(Sheikh,
J.)
dated
the 5th day of May, 2005
in
HC. Criminal Appeal No. 64
of 2003
---------
JUDGMENT OF THE COURT
23 & 30 October, 2007
RUTAKANGWA, J.A.:
The appellant was charged before the
District Court of Arusha District with the offence of rape contrary to section
130 (2) (e) of the Penal Code Cap. 16, RE.2002.
The particulars of the charge read as follows: -
“That Shabani s/o Amiri charged on unknown date (sic) and time 2001
(sic) at Mianzini Area within the Municipality, District and Region of Arusha
unlawfully did have carnal knowledge of Neema d/o Elisha a girl of 15 years
old”.
The
appellant did deny the charge and the prosecution called five witnesses to
prove the charge. The trial court found
the charge to have been proven beyond reasonable doubt. It convicted the appellant and sentenced him
to a term of imprisonment of thirty years.
The appellant was aggrieved. He appealed to the High Court at Arusha. The appeal was found seriously wanting in merit
and was dismissed. Still aggrieved he
has lodged this appeal.
The appellant raised four grounds of
appeal. These, however, can be neatly
condensed into one major complaint. This is that the two courts below erred in
law and fact in finding him guilty as charged as a result of failing to
objectively evaluate the entire evidence and reaching a finding that the same
did not prove the charge of rape even on a balance of probabilities.
The judgment of the trial District court
vindicates the appellant on this complaint.
It indeed lacked the essential ingredients of a judgment contemplated
under section 312 (1) of the Criminal Procedure Act, Cap. 20, R.E. 2002 (or the
Act hereinafter). It was a one sentence
decision. After a reproducing the
evidence of each witness in the case the learned trial Honorary Magistrate held
as follows: -
“Having studied the evidence adduced by the prosecution and that of the
accused and his one witness I am satisfied that the offence has been proved
beyond reasonable doubt as required by law and therefore the accused is
convicted accordingly”.
This
‘decision’ does not show the points or issues which were to be determined, the
decision on those issues and the reasons for the decision thereon. It was, in short, not a judgment at all. The High court, on a first appeal, had the
obligation to make good this deficiency as a first appeal is in the form of a
re-hearing.
The High Court on appeal, sustained the
conviction of the appellant because:
“the trial court had assessed the evidence of PW1 (who was by the time
the matter came to trial fifteen years of age), on merits, found it to be
credible and truthful before proceeding to convict the accused. I do not find the appellant’s assertion that
he was framed on account of a grudge to be credible”.
We
think that the ‘decision’ of the trial court speaks for itself. There is nothing in it to show that the
learned trial Honorary Magistrate assessed the evidence at all. This appeal presents us with one of those
very rare cases in which this Court, on a second appeal, has to step into the
shoes of the High Court and make a proper evaluation of the entire evidence in
order to satisfy itself on whether or not the conviction of the appellant was
justified or right. That this is permissible
was clearly spelt out in the case of D. R.
PANDYA v. R [1957] E.A. 336 (Court of Appeal). It was held therein that on a first appeal
the evidence must be treated as a whole to a fresh and exhaustive scrutiny,
(which was not done here) and that failure to do that is an error of law, which
can be remedied on a second appeal. That
has been the stance of the law since then.
Before we undertake this duty, it is
appropriate at this stage to show briefly why, the appellant was prosecuted in
the first place.
Neema d/o Elisha (PW1) the alleged
prosecutrix was 15 years old when the offence was allegedly committed and was
in Std. IV at Ekenywa
Primary School
As already indicated above, the
appellant vehemently denied having had any sexual relations with PW1 at
all. Because neither the charge sheet
nor the prosecution evidence pointed out a specific day when the rape took
place in the year 2001, the appellant called one witness in his defence. This witness, DW2 Ramadhani supported him in
his claim that indeed one day in July, 2001 he had in open air talked with PW1
demanding from her Tshs. 300/= which she owed him for a hair cut. The appellant used to own a salon. He was subsequently attacked by PW4 and his
son (now deceased) who had either seen him talk with PW1 or were informed about
it. He specifically told the trial court
that there existed bad blood between him and PW1’s brother.
In this appeal the appellant was
unrepresented and had nothing to say in elaborating on his grounds of appeal. The
respondent Republic was represented by Mr. Alexander Mzikila, learned State
Attorney.
The respondent Republic did not wish to
support the decisions of the two courts below.
Mr. Mzikila urged us to allow the appeal in its entirety because the
entire prosecution case smacks of a concoction.
He was driven to this stance by the irreconcilable and unexplained
contradictions inherent in the prosecution evidence. He pointed out that not only the prosecution
witnesses fundamentally contradicted each other, but worse still PW1 exposed
herself as a liar in her evidence in court and by her conduct after the alleged
incident of rape if ever it took place.
We have carefully and dispassionately scanned
the entire evidence on record. We have
found the prosecution case to be flawed by inconsistencies and contradictions
which go to the extent of impeaching the credibility of the three key prosecution
witnesses. We shall now demonstrate why
we are saying so.
As we alluded to above, the evidence of
PW1 on what transpired on the day she was allegedly raped does not tally with
that of PW3 and PW4. As aptly argued by
Mr. Mzikila, the witnesses differ on the date when the offence was committed. Whereas PW1 vaguely or evasively testified
that it was on a certain day in July, 2001 at 6.00 pm, PW3 and PW4 said it was
in August, 2001. Regarding the time, PW3
said it was at 7.30 pm; while PW4 said it was at 8.00 pm. PW1 impressed on the trial court that she
experienced great pains after the act, such that she never went to school for
two days. She also told the trial court
that that was her first sexual experience which she never repeated. However, PW3 contradicted her when she
testified to the effect that PW1 had told her when the pregnancy was discovered
that she had had previous sexual intercourse with the appellant more than
once. Be that as it may, if PW1 was
telling the truth we have found no evidence to indicate as to why she did not
recollect the exact day when she was allegedly raped. Hence the failure of the prosecution to state
the period when the offence was committed.
The evidence of PW3 and PW4 does not
show that they witnessed the rape incident.
PW3 testified that on that day she was informed by their son that PW1
had been “standing with a certain young man in a lane”. The two went to make a follow up. Unfortunately they found PW1 at the shop and
the appellant at his hair dressing salon.
PW3 left with PW1 for home leaving PW4, who had joined them, behind at
the saloon questioning the appellant as to why he was talking with PW1. Once home PW3 asked PW1 why she was talking
with the appellant. PW1 told her mother
that she owed the appellant some money for a hair cut. PW3 did not believed her.
PW4 had a different story. According to his evidence he was the one who
left with their son to ascertain the whereabouts of PW1. After “searching” for her he eventually
traced her at a certain shop and ordered her to go home. When he returned home and was informed by PW1
that she had been “standing” with the appellant as she owed him money, he left
immediately for the appellant’s salon to remonstrate with him. Apart from PW3 and PW4 contradicting each
other, their evidence is not consistent with that of PW1 who testified that she
went home straight from the salon after the rape and on her own, i.e, being
neither ordered by PW4 nor in the company of PW3.
That PW1 contradicted herself is self
evident from her own testimony. In her
evidence in chief she categorically said that the appellant “got hold of her”,
dragged her into the salon, totally undressed her, violently threw her on the
floor before ordering her to open her thighs and raping her. But she openly belied herself while under
cross examination. This time round she
told the trial court that the appellant never used any force. He simply requested her to lie on the floor
which she gladly did and they then had sexual intercourse. From these diametrically opposed versions, it
is very difficult for any objective judge of fact to discern at what particular
stage PW1 was telling the truth. The
only option left is to take PW1 as a liar.
That PW1 was lying in her evidence is
further demonstrated by her own admission that the appellant never made any
attempt to silence her either before, during or after the alleged act. She was only allegedly given Tshs. 100/= for
buying a chewing gum. Under these
circumstances, if really PW1 was raped by the appellant, one wonders why she
never raised any alarm in the first place and secondly why she never complained
at all to anybody including her own mother.
That she never did so casts genuine doubt on the truthfulness of the
entire accusation. It is no wonder that
Mr. Mzikila said it smacks of a fabrication.
As already indicated above, PW1 was
examined in November, 2001 and found to be pregnant. According to exhibit P1 (the PF3) the
pregnancy was in its 19th week.
That means she had sexual intercourse before August, and/or July
2001. This finding then goes to discredit
the three prosecution witnesses (PW1, PW3 and PW4) and goes to lend credence to
the appellant’s claims that he was only a victim of a frame up.
With this type of evidence can it be held
with certitude that the appellant raped PW1?
While believing, on the basis of exhibit P1, that PW1 was raped as she
was under 18 years of age, we have found it difficult to believe that she was
raped by the appellant. Had the two
courts below carried out a judicial evaluation of the evidence they could not
have failed to detect these patent contradictions which are bordering on
blatant lies. Had they done so they
would definitely not have held that PW1’s evidence was both “credible and
truthful”. Indeed her evidence was so
fundamentally flawed as above demonstrated that no amount of corroboration
would save it.
For the foregoing reasons we have found
ourselves in full concurrence with the submission of Mr. Mzikila that the
prosecution abysmally failed to prove the charge against the appellant. We accordingly allow this appeal in its
entirety by quashing the conviction and setting aside the sentence imposed on
the appellant. The appellant is to be
released from custody forthwith unless he is otherwise lawfully held.
DATED at ARUSHA this 30th day
of October, 2007.
A.S.L. RAMADHANI
CHIEF
JUSTICE
S. N. KAJI
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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