Waiki Amiri v. Republic, Cr no 230 of 2006 (Rape case)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM: MROSO, J.A., KIMARO, J.A., And LUANDA, J.A.)

CRIMINAL APPEAL NO.230 OF 2006

WAIKI AMIRI………………………………………………APPELLANT

Versus

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

(Appeal from the Judgment of the High Court

Of Tanzania at Tanga)

(Mkwawa, J.)

Dated 23th day of August 2003

in

Criminal Appeal No.6 of 2002

………………..

JUDGEMENT OF THE COURT

 17^th & 25^th June 2008

KIMARO, J, A.

        In the District Court of Korogwe, at Korogwe, the appellant, one Waiki Amiri, was charged and convicted of the offence of rape contrary to sections 130 and 131 of the Penal Code as amended by the Sexual Offences (Special) Provisions Act, No. 4 of 1998.  He was alleged to have raped one Lilian Francis, an imbecile.   He was sentenced to a thirty year imprisonment term and twelve strokes of the cane.

        Briefly, the evidence upon which the conviction of the appellant was founded was that; on 4^th April, 2001 at around 9.00 p.m., Catherine Mbwana(PW1) and Helena Mbwana(PW2), both wives of Francis Mbwana(P.W.5), were in their house but in different rooms.  Unfortunately no details were given on the location of the different rooms in the house but PW1 was in one of the rooms with her grand children.  She heard a sharp voice from Lilian Mbwana, her child and the victim of the offence.  She was in another room. As PW1 had not known what was taking place then, she raised an alarm that the house was invaded by thieves. PW1 rushed into the room where Lilian was, and found the appellant half naked, with his trousers and underpants down up to the knees and was on top of Lilian.   PW1 had to struggle to pull the appellant from Lilian because the appellant did not easily give in.

        The alarm raised by PW1 brought at the scene of crime PW2 and Mwanahamisi Waziri (PW3), a house girl of PW1.  PW3 was at the material time in the kitchen.  Both witnesses corroborated the evidence of PW1 to the effect that the appellant was half naked and was on top of Lilian.  Eventually, PW1 managed to pull the appellant from Lilian.  Among independent witnesses who visited the scene of crime because of the alarm raised by PW1 was one Miraji Shabani PW4, a passer- by.  He also corroborated the testimonies of all the other prosecution witnesses that upon his arrival at the scene of crime the appellant who was leaving the room was half naked, with his trousers zipped open up to his knees.

Further evidence by PW1, PW2 and PW3 was that Lilian was examined in her private parts and found with slippery fluid and blood.   It is unfortunate that because of her condition Lilian was not able to testify at the trial.  Although she was medically examined by a doctor and the PF3 Form was admitted in court as an exhibit to prove that she was raped, the doctor who examined her was not summoned for cross examination by the appellant.

        In his defence the appellant who was employed by PW5 as a cattle herds-man, consistently insisted that the charge against him was framed up in order to deprive him of his accumulated salaries he was claiming from PW5.  

        With the above evidence, the trial court was satisfied that the prosecution witnesses were credible and the offence of rape was proved beyond reasonable doubt.  In proof of penetration, the trial court was satisfied that the blood found  in the private parts of the complainant was sufficient to prove penetration in terms of the provision of section 130(4) (a) of the Penal Code. The appellant was then convicted and sentenced as aforesaid.

        The appellant’s appeal to the High Court was dismissed.  The first appellate court was satisfied with the evaluation of the evidence and the findings made by the trial court.

        Still aggrieved, the appellant is before us with this second appeal.  His memorandum of appeal has eight grounds of appeal but they can conveniently be reduced into three substantive grounds.  In the first ground the appellant’s complaint is that apart from the evidence of PW4, all witnesses were family members.  On the second ground the appellant wondered why the other persons who turned up at the scene of crime were not summoned as witnesses.  As for the third one the appellant doubted the validity of the PF 3 Form because the complainant (the victim of the crime) was not examined at a government hospital.

        During the hearing of the appeal the appellant appeared in person and the respondent Republic was represented by Mr.  Vicent Tangoh, learned State Attorney.  The Republic supported the conviction and sentence.

        On the first ground of appeal the appellant insisted that the case was framed up because his employer, PW5 was in arrears of his salary and wanted to get rid of him in order to avoid paying him.   All the prosecution witnesses, namely PW1, PW2, PW3 and PW5 the appellant contended, were family members who teamed up to ensure the success of their plan of the frame up of the charge against him.

In response to the first ground of appeal, the learned State Attorney regarded it as baseless, claiming that the appellant failed to show reasons for fabrication.    What was important for the prosecution, the learned State Attorney contended, was to have credible evidence from persons who were at the scene of crime, and they happened to be relatives.  Even the appellant’s claim of arrears of salary from PW5, Mr. Tangoh argued, was not substantiated.   

As for the second ground of appeal the appellant was not impressed by the evidence of PW4, the only independent witness, because he was not the only one who appeared at the scene of crime. According to him, PW4 was not a reliable witness because of this reason.  He wondered why it was only him among many others, who visited the scene of crime, who was picked to testify.

On this ground the counter submission by the learned State Attorney was that PW4 was a passer- by who responded to the alarm raised by PW1.  He urged the Court to believe his evidence because there was no proof of grudges by this witness against the appellant.

The appellant’s complaint on the PF3 form, his third ground of appeal, was that the complainant was not examined at a government hospital and he suspected the validity of the PF3 Form that there could be collusion by the family members.   He asked the court to allow his appeal, quash the conviction and set aside the sentence.

 The learned State Attorney readily conceded a fault by the High Court on the PF3 Form. He submitted, correctly in our view, that section 240 (3) of the Criminal Procedure Act, Cap. 20 R.E. 2002 was not complied with.  Citing the case of Nyambuya Kamuoga Versus The Republic CAT Criminal Appeal No. 90 of 2003 (Dodoma) (Unreported) the learned State Attorney said it was mandatory for the doctor who examined the complainant to  be summoned for cross examination by the appellant.   In this case the appellant was not given such an opportunity, and even the trial magistrate did not bother to point out to the appellant that he was in law entitled to such a right.  In this respect the evidence on the PF3 form which was wrongly admitted and relies upon by the trial court and supported by the first appellate court cannot remain on record. It is accordingly   expunged from the record.

 Mr. Tangoh was quick to point out that even if the evidence of the PF3 Form is excluded form the record, the prosecution case will not be affected.  He said minus the evidence on the PF3 form, there was still sufficient evidence on record on which to base the conviction of the appellant.  He prayed that the appeal be dismissed.

This is a second appeal.  There is concurrent finding of facts by both the trial and the first appellate court that the appellant committed the offence of rape which he was charged with. The principle laid down in the case of  DPP Vs Jaffari Mfaume Kawawa [1981]T.L.R.149 is that the Court is entitled to interfere with concurrent findings of facts by the Courts below only when there is a misdirection or non- direction on matters of facts by the Courts below.

 The issue before us is whether we have justification for interfering with the concurrent finding of facts by the two courts below.  The first appellate court was satisfied with the evaluation of the evidence of PW1, PW2 and PW3 by the trial court that they were credible eye witnesses to the commission of the offence.  All witnesses said they saw the appellant half naked and on top of Lilian.  As the complainant was examined in her private parts, she was found with blood and slippery fluid. 

The first appellate judge was satisfied with the assessment by the trial court of the credibility of PW1, PW2, and PW3.   Coupled with the evidence of PW4 who was an independent witness and the blood that was found in the private parts of Lilian, the first appellate judge was satisfied that the offence of rape was committed.

In our view we have no reason whatsoever to interfere with the concurrent findings of facts by the courts below, particularly when bearing in mind the evidence of PW4 who was an independent witness and had no grudges with the appellant.  The complaint by the appellant of evidence of family members teaming up against him and his defence of claims of salary arrears from PW5 could have assisted him if there was a reason for doubting the credibility of PW4.  In this case there is none.  There is no law which forbids family members from giving evidence so long as they are competent and credible witnesses.   In this case, the likelihood of the family members teaming up against the appellant seems to be remote in view of the observation we have made about PW4.  In the light of the prevailing circumstances of the case, we agree with the learned State Attorney that the first ground of appeal is baseless.

On his complaint why PW4 among others, was the only independent witness who testified, our observation is that it is not the number of witnesses  brought to testify which matters but rather, it is the credibility and reliability of the evidence which matters.  It was the right of the prosecution to call witnesses who were important for proving their case.  If they chose PW4 we have no justification for a query.  In the case of Goodluck Kyando Vs R. CAT Criminal Appeal No. 118 of 2003 (unreported) the Court observed that:

                “What is important is the credibility

                and reliability of the evidence and

                not the number of witnesses called

                to testify.”

Even section 143 of the Law of Evidence Act, Cap 6 R.E. 2002 does not give a particular number of witnesses required to prove the case for the prosecution.  The number of witnesses the prosecution summons is exclusively their choice, and as already stated, it is dependent on the credibility and reliability of their evidence.  In this respect, we also agree with Mr. Tangoh that there was nothing wrong for the prosecution to summon PW4 out of the many people who turned up at the scene of crime, so long as they were satisfied, and indeed it turned out to be, that PW4 was a credible and reliable witness.

Lastly, we think it is important to address albeit briefly, the question of penetration.  According to section 130 (4)(a) of the Penal Code “ penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence”.  The evidence from PW1, PW2 and PW3 was that Lilian was examined in her private parts after the appellant had been removed from her body, and she was found with blood.  The first appellate court agreed with the trial court that it was sufficient evidence to indicate penetration.  On our part we agree with Mr. Tangoh that although we expunged from the record the evidence of the PF3 Form, the evidence that remained on record proved that rape was committed.  The evidence that Lilian was found with blood in her private parts suggested that she suffered bruises in the sexual encounter which the appellant forced on her.  We fully agree with the learned state Attorney that even without the PF3 Form evidence, there was sufficient direct evidence  to prove that there was penetration; hence the offence of rape was committed.

In the event, we find no merit in the appeal.  We dismiss it in entirety.

Dated at TANGA this 20^th day of June, 2008.

J. A. MROSO

JUSTICE OF APPEAL

N.P.KIMARO

JUSTICE OF APPEAL

B.M. LUANDA

JUSTICE OF APPEAL

I certify that this is a true copy of the original

        (W.E. LEMA)

DEPUTY REGISTRAR

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