IN THE HIGH COURT OF
AT
DAR ES SALAAM
CRIMINAL
APPEAL NO. 57 OF 2004
(Original
Criminal Case No. 739 of 2002, Originating from the Resident Magistrate’s Court
of Dar es Salaam at Kisutu)
THE DIRECTOR OF PUBLIC
PROSECUTIONS………APPELLANT
VERSUS
MT.20368 SGT FABIAN
KIMARO…………..………RESPONDENT
JUDGMENT
KALEGEYA, J.:
Dissatisfied with the acquittal of the
Respondent (accused in the lower court) the Director of Public Prosecutions
preferred the present appeal complaining that the trial Magistrate misdirected
himself in evaluating evidence tendered in Court and consequently erred in fact
and law in holding that the offence was not proved beyond doubt and
consequently acquitting accused.
Ms Msabila, Learned State Attorney, who
was being assisted by Mr. Mkizungu, Learned State Attorney, vehemently
elaborated the two grounds of appeal urging that the PF3 established that the
victim was raped; that the evidence of a child under the law sufficed and that
she was seen holding money of which she said had been given to her by the
Respondent after raping her.
On his part, the Respondent insisted on
his innocency and reiterated what he had told the court during the trial that
this was a cooked up case due to family conflicts which had flared up and
subsequently seemingly settled around 1997.
Having carefully gone through the
evidence tendered before the lower court and the submissions made before me in
relation to the law, I am not persuaded that the finding of the lower court is
flawed. The trial court properly directed
itself on the contradictory nature of the evidence tendered and rightly
concluded that the offence of rape with which the Respondent was charged and
finally acquitted of was not established beyond all reasonable doubt.
The Respondent was charged with rape c/s
130(1) and (2)(e) and S.131(1) of the Penal Code as amended by the Sexual
offences (special provisions) Act No. 4 of 1998.
Armed with four witnesses and a PF3
(Exh.P1) the prosecution sought to erect its case against Respondent who also
called four witnesses (including himself) in defence.
The victim (PW3) was said to be 13 years
old and who lived with PW1 and 4 (wife and husband respectively) and who were
neighbours to Respondent. PW1 is PW3’s
sister.
The allegations were that the Respondent
called the child (PW3) into his house, raped her and gave her shs. 100/=. As she was leaving the house, the story goes,
PW1 called and asked her who had given her shs. 100/= she was holding upon
which the Respondent was mentioned. PW2,
a neighbour, and a Nurse Assistant took PW4 to Lugalo hospital where she worked
but PW3 could not medically be attended as there was no police Report; that PW3
was then taken by PW4 to Mwananyamala Hospital thence to Muhimbili Hospital
where she was admitted and discharged the following day.
The Respondent very strongly disputed
the allegations, maintaining that there existed a long family dispute between
these two neighbours and that this was a cooked up case. DW2, a retired military warrant officer,
testified to the existence of the dispute of which together with fellow army
men he had tried to settle. DW3,
Respondent’s house girl also confirmed the existence of the dispute by stating:
“there was a conflict between PW3’s
sisters and the accused wife. Because of
this conflict we were not used to visit each other”. The
same story was repeated by DW4.
In reaching its verdict, the trial court
considered the evidence of PW1 and 2 in relation to Exh. P1 and was categorical
of the contradiction between the two as regards the alleged existence of
spermatozoa in PW1’s genetals. Also
considered was PW3’s evidence regarding where she was when called upon by PW1-at
one point saying that she was going to the shop and yet at another that she was
playing. The Court also being satisfied
of the existence of family conflict, in light of the contradictions, inferred a
possibility of a “planted case”.
Indeed, PW1 and PW2 testified to have
seen sperms. PW1 stated:
“……..I
checked the complainant. I saw that the
Complainants…………being interfered and there were some sperms”,
while
PW2, is on record saying:
“I
called the complainant inside the room and I inspected…….her parts……….I found
there was some spermatozoa…….I took her to Lugalo Hospital……..I asked one Dr.
to check the complainant and he checked and said there are some sperm in
her………”
That was during examination in
chief. Under cross-examination she said:
“After
inspecting the child there was friction and some sperms”.
The victim herself had the following to say:
“There
was no blood in my carnal (sic) and no friction”.
What does the PF3 (Exh. P1) tell us on the other hand?
One Dr. Bwahama
reported as follows:
“Neema
Kimambo 13 years old admitted in Gynaecological wd on 6/9/02 and discharged
home on 7/9/02 who being sexually abused by a neighbour boy. Girl was fair, young girl look scared…….no
bruises. Other systems well.
PVE:
Normal v/v, had bruises on lower 1/3 rd
of both labia major. No obvious
bleeding, hymen torn at 6 and 9 O’clock.
Digital examination admit 2 fingers which were stained c whitish
discharges.
Investigations
done: 1st
ELISA test 6/9/02 = D Negative
VDRL test
6/9/02 = D Negative
·
2nd ELISA test
11/10/02 = D Negative
VDRL
test 11/10/02 = D Negative
·
Seminal analysis done
6/9/02 = D show epithehal squamans cells only. No spermatozoa.
Dr. Bwahama
5/3/03”.
The contradictions which influenced the
trial court need no orchestration. If
PW1 and 2 saw spermatozoa with their naked eyes in the same evening of 6th
September, 2002, how did a Dr’s examination of the seminal analysis fail to
detect the same? The Dr’s report shows
that the haymen was torn but the words “at 6 and 9 O’clock” could only have
been explained by the Dr. himself in order to make sense. Was it torn on the alleged date of incident
or before?
The Victim herself
(PW3) had testified:
“……accused…..called
me in his house and took me in his room and undressed me and penetrated into me
his thing and I felt pain. I could not
cry because he curbed my throat……. The accused never called me before and never
did that thing to me before and there is no one who did that act to me”.
…………………………………………………
……………………………………………….
There was no
blood……….and no friction”.
Does the victim’s testimony rhyme with
the Dr’s Report? Was the victim going
through this sexual experience for the 1st time or was she
seasoned/experienced? While the latter
element legally is irrelevant if indeed it is established that the Respondent
did what is alleged, I am posing it because of the uncertainty surrounding the
whole alleged incident.
Other intriguing elements are as
follows: was PW3 admitted at Muhimbili Hospital
Now, all these doubtful elements impact
greatly on the key witnesses. Should PW3
be believed in her testimony wherein she talks of no friction and yet the Dr.
and PW2 talk of bruises and friction? Should PW1 and 2 be believed in their
testimony on the existence of sperms when the examining Dr says the
contrary. Should we believe this PW3
that she did not cry because Respondent “curbed (sic)” her throat? If indeed she had been raped to the extent of
feeling pain as she describes, and considering her age, obviously she would
have come out of the house shaken and most probably crying. The evidence however shows that the sounding
indicator that everything was not well was just her holding of shs. 100/= whose
source was unknown! As rightly analysed
by the trial court this evidence is wanting.
And considering the undisputed family conflict in existence anything
could have happened. And, in criminal
cases, the standard of proof which should be beyond reasonable doubt has no
place for suppositions. Once such doubts
are entertained the accused should be bestowed with the benefit thereof. The trial court rightly arrived at its
finding.
Before I conclude, I should make one
further observation. The PF3 (Exh. P1)
seemingly relied upon by the Appellant, has also another bottleneck. Its tendering violated S. 240(3) of the
Criminal Procedure Act which provides as under:
“S.240 (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”. (emphasis nine)
The proceedings show what happened prior
to the tendering and its being numbered ‘Exh. P1”. PW4 is on record as follows:
“Dr.
informed me that there was possibility that Neema was raped. On the 7th September, 2002 Neema
was discharged. I have PF3 for the
treatment. I pray to tender as Exh.
Court:
PF3 dated 6/9/2003 for Neema Kimambo is hereby admitted and marked Exh. “P1”.
Obvious flaws here are twofold: the
accused’s view on whether or not he was objecting to its being tendered were
not sought, and, two, his statutory right under 240 (3) CPA as quoted was never
accorded to him. These elements must
specifically be reflected on record.
The above said, the obvious still
lingers on. The appeal has no
merit. It is accordingly dismissed.
L. B. KALEGEYA
JUDGE
WORDS: 1,642
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