Yemorin Mgallah v. Republic Cr no 80 of 2004 (offences of rape)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:   LUBUVA, J.A., NSEKELA, J.A., And MBAROUK, J.A.)

CRIMINAL APPEAL NO. 80 OF 2004

YEMORIN MGALLAH …………………………………  APPELLANT

VERSUS

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

(Appeal from the Judgment of the High Court

of Tanzania at Dar es Salaam)

(Ihema, J.)

dated the 10^th day of June, 2002

in

HC Criminal Appeal No. 35 of 1999

--------------

JUDGEMENT OF THE COURT

17 July, 2007

LUBUVA, J.A.:

In the Court of Resident Magistrate at Kisutu, Dar es Salaam, the appellant, Yemorin Mgallah, was charged on two counts with and convicted of the offences of rape contrary to sections 130 and 131 of the Penal Code, CAP 16 R.E 2002.  He was sentenced to twenty years term of imprisonment.  Unsuccessfully, he appealed to the High Court and has appealed to this Court from the decision of the High Court (Ihema, J).

The facts as found and established at the trial were that Margaret Paul (PW1) and Rehema Bernard (PW2), who are related, lived together in one house in Kurasini area near the Kurasini Primary School within the City of Dar es Salaam.  Both PW1 and PW2 were followers of a Christian sect called Kikosi cha Injili whose leader was the appellant, Yemorin s/o   Mgallah as the Bishop.

The prosecution case was that on 10/5/1997 and 26/5/1997, PW1 and PW2 respectively, were raped by the appellant.  It was further alleged that on these dates, the appellant sent for PW1 and PW2 who in response visited him at his office-cum room next to the Church.  While in the room, it was alleged that the appellant through intimidation and false representation as a church leader, had sexual intercourse with PW1 and PW2 without their consent.  The prosecution case was based primarily on the evidence of PW1 and PW2 who were believed by the trial court.  As already indicated, the appellant was convicted and sentenced.  On appeal to the High Court, the appeal was dismissed.   Hence this appeal has been instituted.

In this appeal, the appellant was represented by Mr. Magafu, learned counsel.  Initially, six grounds of appeal were lodged apparently by another advocate, Mr. Ndolezi, who has since died.  However, at the hearing of the appeal Mr. Magafu opted to abandon grounds 1, 2, 3, 4 and 5 and argued only ground six.  The essence of this ground was that the evidence adduced was not sufficient to sustain the conviction against the appellant.

In his submission, Mr. Magafu underscored the following issues.  First, that from the evidence as a whole, the offence of rape was not established.  The evidence as established at the trial does not establish the essential ingredients of the offence of rape as defined under section 130 of the Penal Code.  If the sexual act was not proved then the prosecution case against the appellant collapses, Mr. Magafu urged.  Second, if sexual intercourse had taken place, then it was done with the consent of the victims, PW.1 and PW2, subject of the two counts.

Third, the evidence of PW1 and PW2 is highly unsatisfactory.  For instance, it is curious that both PW1 and PW2 did not report the incidents soon after the alleged rape.  Furthermore, if PW1 and PW2 cried out in protest, it is curious and unusual that other people who it is claimed, were around the church area did not come in response to the cry by PW1.  Finally, Mr. Magafu said that the similarity in the evidence of PW1 and PW2 was too good to be true.  In his view, it is a rare coincidence that incidents that took place on different dates, i.e. 10^th and 26^th May, 1999 are described more or less in exactly similar words.  In such circumstances, Mr. Magafu went on in his submission, the possibility of the case being framed up against the appellant could be ruled out.

       The respondent, Republic, was represented by Ms Msabila, learned State Attorney.  She strongly resisted the appeal.  In the first place she conceded that in this case, there was no other witness who supports the evidence of PW1 and PW2 in their allegation that they were raped.  However, she firmly maintained that the trial court and the first appellate High Court correctly found PW1 and PW2 truthful and credible witnesses.  In that situation, the Attorney further submitted, the court having warned itself of the danger of convicting without corroboration in a sexual offence, properly convicted the appellant.

       Furthermore, the State Attorney, also submitted that once the evidence of PW1 and PW2 is accepted as was the case here, the sexual intercourse was without consent.  Elaborating further, Ms Msabila stressed that in view of the appellant’s position as a religious leader, if it is accepted that there was consent to the sexual act, such consent was obtained by false representation.

       With regard to corroboration, Ms Msabila took the view that even though the court correctly convicted the appellant based on the uncorroborated evidence of the complainants  (PW1 and PW 2), in the case of PW2 she said the PF3 supported her.  On the other hand, the learned State Attorney conceded that in the case of PW1, there was corroborative evidence.  At the end of the day, she ardently maintained that the conviction was properly founded.

       As a rejoinder to the submissions by the learned State Attorney, Mr. Magafu said that the PF3 in question was problematic.  For this reason, counsel further observed, the trial magistrate and the first appellate High Court correctly did not rely on the PF3 in convicting the appellant as there were several discrepancies in the PF3.  For instance, he said while the PF3 was sent to the hospital by the Police Regional CID Office Dar es Salaam on 14/8/1997, it was indicated in the PF3 that PW1 had reported at the hospital on 8/7/1997.

 

We shall first deal with the basic issue which was raised by Mr. Magafu in his submissions.  The charge against the appellant on two counts was that on two occasions, 10.5.1997 and 26.5.1997, the appellant raped the complainants, Magret d/o Paul (PW1) and Rehema d/o Bernard (PW2)  respectively.  Mr. Magafu’s main ground of complaint was that the evidence does not establish the basic ingredients of the offence of rape.  The definition of rape is provided under section 130 of the penal Code – CAP 16 E.R. 2002 which states that:

130. Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of the felony termed “rape”.

       From this provision of the law as extracted above, it is at once clear to us that two essential elements should be established.  First, an unlawful carnal knowledge of a woman or girl, that is, the sexual act.  Second, that such sexual act is done without her consent or if with her consent the consent is obtained by force, intimidation, threats or false representation.  With regard to the first element, that is, sexual act, what evidence is there in this case which proves that not only the sexual act took place but it was also unlawful.  This issue Mr. Magafu seriously asserts, was not proved because there was no other independent evidence to corroborate the evidence of PW1 and PW2.

       From our close examination of the evidence on record, it would appear to us that there is force of argument in Mr. Magafu’s submission.  From the evidence, it is not disputed that even the trial magistrate was live to the fact that the evidence of PW1 and PW2 was the only evidence available on the alleged rape.  For that reason the record is equally loud and clear that the trial magistrate went to great lengths in fortifying himself that the court could convict even without corroboration if it warned itself of the danger of convicting on such evidence in sexual offences if it is satisfied as to the truthfulness of the witnesses.  On this legal principle, the trial magistrate commendably analysed a number of decided cases including among others, Shiku Salehe V R (1987) TLR 193 by this Court.

       In such circumstances, where as in this case, it is only the word of the complainant, PW1, in count one, and PW2 in count two, who allege that sexual intercourse took place, can it be said with certainty, that the sexual act in fact took place?  In count one PW1 gives a long narration of the sequence of events leading to the alleged rape in the room of the appellant within the church precinct.  There is no other witness who gives evidence in support of her claim to have been raped that day.  The other witnesses, PW2, PW4, PW5 and PW6 gave evidence on similar general complaints against the appellant on some other previous occasions.  Worse still, none of the neighbours apart from PW2 who lived with PW1 came to testify that PW1 had reported to them after the incident or that they had seen her bleeding or her private parts bruised etc.

       The case of PW2, Rehema Bernard, also suffers from the same defects as PW1.  The alleged incident took place on 26/5/1997 at the same place as in the case of PW1 and in similar circumstances.  In an effort to get supportive evidence in this case, there was an attempt to obtain medical evidence.  Towards this end, a move was made to take PW2 to the hospital by use of the PF3 Form.  However, as Mr. Magafu indicated, the PF3 was characterized with serious discrepancies.  While it is indicated that the police issued the PF3 on 14/8/1997 when the alleged incident took place on 26/5/1997, the Medical Officer shows that PW2 was sent to the hospital on 8/7/1997.  If the incident took place on 26/5/1997, it goes without saying that the medical examination carried out on 8/7/1997 would naturally have no bearing to the alleged offence on 26/5/1997.

With such glaring discrepancies, apart from the legal technicalities pertaining to the admissibility of the PF3, we are of the settled view that the PF3 was properly not admitted in evidence at the trial. 

Consequently, the evidence of PW2, like that of PW1 remained unsupported by any other independent evidence on the question of the alleged sexual act.  As in the case of PW1, the essential element of the sexual act or carnal knowledge of PW2 can hardly be said to have been proved on such evidence.

       The other second element of the offence, that is unlawful carnal knowledge of a woman, was dependent upon the first element.  Before considering whether the sexual act was unlawful, it had first to be shown that the act had taken place.  In the instant case, as it has been shown the act of sexual intercourse was not proved, it is hardly necessary to consider whether the carnal knowledge of PW1 or PW2 was unlawful or it was consented.

       On the evidence as a whole, it seems clear to us that the basic elements of the offence of rape as defined under section 130 of the Penal Code were not proved.  With respect, this aspect was not addressed by both the trial magistrate and the learned judge on first appeal.  Apparently, the two courts below took it as an established fact that the sexual act had been established.  In this light, the courts below at considerable length dealt with the question of corroboration and consent.  We think with respect, had the learned judge on first appeal considered this aspect, he would have come to the same conclusion that the offence had not been proved.  As such, it was unnecessary to consider the question of consent and corroboration as was done in this case.

Having taken the view that on the evidence, the basic element of the offence of rape had not been proved, the conviction against the appellant therefore could not be sustained.  In that situation, it becomes unnecessary to deal with the other grounds of appeal in which we had very useful and well researched submissions by Mr. Magafu, learned counsel and Ms Msabila learned State Attorney, to whom we are grateful.

       To recapitulate, on the evidence as a whole, we are satisfied that as the evidence of PW1 and PW2, the complainants, in the two counts in the charge for the offences of rape was not sufficient to prove the basic element of the sexual act, the conviction against the appellant cannot be sustained. 

Before concluding this judgment, we wish to observe that even though the evidence does not prove the basic elements of the offence, subject of the charge, it is our view that the conduct of the appellant, a high ranking leader of the church of the sect, Kikosi cha Injili, of the rank of Bishop, leaves much to be desired.  It is highly suspicious.  He should consider himself lucky in that under our system of the administration of criminal justice, suspicion alone in a criminal charge, however strong it may be, is not enough to sustain a criminal charge.  The case must be proved beyond all reasonable doubt.  Any lingering doubts should be resolved in favour of the accused, in this case the appellant.

       In the event, for the foregoing reasons, the appeal is allowed, conviction quashed and sentence set aside.  The appellant is to be set free forthwith unless otherwise lawfully held.

DATED at DAR ES SALAAM this day of 2007.

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