Tatizo Issa @ Hassani v. Republic, Criminal Appeal No. 45 of 2002 (rape in Tanzania)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  MUNUO, J.A., MSOFFE, J.A. And KIMARO, J.A.)

CRIMINAL APPEAL NO. 280 OF 2005

TATIZO ISSA @ HASSANI…………………………………………….APPELLANT

VERSUS

THE REPUBLIC………………………………………………………..RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Dar es Salaam)

(Ihema, J.)

dated the 18^th day of October, 2004

in

HC. Criminal Appeal No. 45 of 2002

JUDGMENT OF THE COURT

4 & 18 March, 2009

MUNUO, J.A.:

        The appellant, Tatizo Issa @ Hassani was convicted of rape c/s 130 (1) and 131 of the Penal Code, Cap. 16 as amended by the Sexual Offences Special Provisions Act, 1998.  He was found guilty in Morogoro District Court Criminal Case No. 138 of 2001, of carnally knowing one Hadija Athumani, without her consent, on the 19^th February, 2001 at about 11.00 hours at Bihomora Village within Morogoro District in Morogoro Region.  The trial court sentenced the appellant to a term of 30 years imprisonment.  Aggrieved, he preferred Criminal Appeal No. 45 of 2002 in the High Court of Tanzania at Dar es Salaam.  Ihema, J. as he then was, upheld the conviction and sentence giving rise to this second appeal.

        When the complainant, P.W.1 Hadija Athumani testified, she was aged twelve years. Through voire dire examination, the trial magistrate was satisfied that she knew the meaning of an oath and she understood the duty to say the truth.  Hence she testified on oath.

        The complainant, a Std. III primary school pupil at the material time, deposed that she went to visit her mother at Bihomora Village.  There she met the appellant, her uncle.  She stated that the appellant held her by her hand and took her straight to his bed.  He removed her underpants, put off his trousers and inserted his male organ in her private parts, causing much pain to the victim.  He warned her not to tell anyone.  P.W.1 stayed with her mother for four days and thereafter returned to her father’s home.  She could not go to school due to stomach problems.  She told her aunt, Fatuma, what the appellant had done to her.  Fatuma relayed the same to P.W.1’s father.  The latter took the victim to the police who issued a PF3 to P.W.1 for medical examination as per Exhibit P1.  In re-examination, P.W.1 stated that it was the second time the appellant sexually assaulted her.

        P.W.4 N. C6732 D/Clp Saada recorded a caution statement, Exhibit P2, from the appellant.  In his caution statement the appellant admitted that he had carnal knowledge of the victim but that she consented and did not raise any alarm.

        In his sworn defence, the appellant denied the offence.  He said that he admitted the offence in his caution statement because the police threatened to kill him.  He thence admitted the offence to save his life, he asserted.

        As stated earlier on, the courts below believed the complaint’s version and grounded a conviction.  The learned judge observed, and we quote:

………The fact that P.W.1 consented to the appellant’s request to have sex would in no way assist him (appellant) given P.W.1’s age at the material time.  On this premises I will hold that the trial magistrate properly directed herself in admitting the cautioned statement of the appellant.  This statement without further ado corroborates the testimony of PW1 herself that the appellant did actually have carnal knowledge with her on the 19^th February, 2001.

The learned judge continued:

……….In addition I think it is safe to hold that once it is established that a caution statement was properly admitted by the trial court, all the three grounds in the supplementary memorandum of appeal as well as the two grounds in the original memo of appeal need no further consideration.

The learned judge further observed that –

……….it would be useful to reiterate the current position of the law in relation to the admissibility of the testimony of a minor in a rape case.  Where the court is satisfied that the testimony of a victim of rape who is a minor is nothing but the truth, a conviction may be entered against the accused without requiring corroboration (Section 27 of Act No. 4 of 1998).

Indeed Section 27 of the Sexual Offences Special Provisions Act No. 4 of 1998 amended Section 127 of the Evidence Act, 1967, Cap 6 R.E. 2002 by adding sub-section (7) which states, inter-alia;

127 (7) notwithstanding the preceding provisions of this section, where in criminal proceedings involving a sexual offence the only independent evidence is that of a child of tender years or of a victim of the sexual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years or as the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child of tender years or the victim of the sexual offence is telling nothing but the truth.

Section 127 (8) defines sexual offence as meaning –

Any of the offences created in Chapter XV, of the Penal Code.

The appellant was dissatisfied with the decision of the High Court so he lodged the present appeal.  He filed six grounds of appeal which can be summarized as follows:

(a)           that the courts below erroneously considered the evidence of the victim a small girl, who had not undergone voire dire examination.

(b)           That the PF3, Exhibit should not have been admitted at the trial for non-compliance with the provisions of Section 62 (1) and Section 240 (3) of the Criminal Procedure Act, 1985, Cap. 20 R.E. 2002.

(c)           That the conviction is flawed by inconsistencies and incredibility in the prosecution case.

(d)           That since the victim of rape was below 18 years, the majority age, the case should have been conducted in camera as stipulated under Section 28 (5) of the Criminal Procedure Act, 1985.

(e)           That the caution statement, Exhibit P2, should not have been admitted because it was extracted from the appellant by threats to kill the deponent, and as such it was not a voluntary police statement meriting admission.

(f)            In view of these grounds of appeal, the court should allow the appeal by quashing the conviction and setting aside the sentence.

Adopting his grounds of appeal at the hearing of the appeal, the appellant reiterated that he did not rape the complainant.

The Respondent Republic was represented by Mr. Mganga, learned State Attorney.  The learned State Attorney declined to support the conviction on the ground that the prosecution did not prove the case beyond all reasonable doubt.

The charge sheet at Page 4 of the record, Mr. Mganga observed, shows that the offence was committed on the 19^th February, 2001 whereas the preliminary hearing shows that the offence was committed on the 19^th January, 2001.  The PF3, Exhibit P1, the learned state Attorney noted, was issued to the complainant on the 26^th February, 2001.  Furthermore, he stated, Exhibit P1 is vaguely endorsed with remarks:

    N.B. though it is said to be two months duration but the laceration seems to be of recent.

The words “two months duration” indicate that the rape was committed two months prior to the date of issuing the PF3, Exhibit P1, on the 26^th February, 2001, the learned State Attorney contended.

        With regard to the PF3, Exhibit P1, the same was tendered not in compliance with the provisions of Section 240 (3) of the Criminal Procedure Act, 1985, Cap. 20 R.E. 2002, so ground 2 of the memorandum of appeal has merit.  The learned State Attorney referred to the case of Sultan Mohamed versus Republic, Criminal Appeal No. 176 of 2003 (unreported) in which the Court quashed the conviction and ordered a retrial for the reason that the trial magistrate did not comply with the mandatory provisions of section 240 (3) of the Criminal Procedure Act, 1985, Cap. 20 R.E. 2002.

        Section 240 (3) of the Criminal Procedure Act, 1985 states, inter-alia:

         240. (3)  when any such report 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.  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 shows that the trial magistrate did not inform the appellant of his right to require the doctor who examined the complainant to appear and testify at the trial.  We are of the settled view that non-compliance with the provisions of section 240 (3) of the Criminal Procedure Act, 1985 was a fundamental irregularity which flawed the conviction.

        The learned State Attorney did not support the conviction for yet another reason.  The appellant denied to have voluntarily recorded the caution statement, Exhibit P2.  The appellant complained in ground 4 of the appeal that the caution statement was extracted under duress.  No inquiry was conducted by the trial court to establish whether or not the caution statement was recorded freely, the learned State Attorney pointed out.  Under the circumstances, to support a conviction, the retracted caution statement requires corroboration, the learned State Attorney asserted.

        It appears to us that the appellant only thumb printed Page 1 of the caution statement, Exhibit P2.

        The page annexed to form PF2A reflects the admission of the appellant that he had sexual intercourse with the appellant with her consent at his house on the 19^th February, 2001.  However, the annexed page is not signed or thumb printed by the appellant to show that he recorded the statement.  We are of the settled mind that since the appellant did not sign the annexed statement, it can hardly be accorded weight in terms of evidence.

        In the light of the above, the Republic rightly refrained from supporting the conviction.  We accordingly quash the conviction and set aside the sentence.  The appellant to be set at liberty forthwith if he is not held for other lawful cause.

        In the result the appeal is allowed.

        DATED at DAR ES SALAAM this 13^th day of March, 2009.

E. N. MUNUO

JUSTICE OF APPEAL

J. H. MSOFFE

JUSTICE OF APPEAL

N. P. KIMARO

JUSTICE OF APPEAL

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

(J. S. MGETTA)

DEPUTY REGISTRAR

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