IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 173 OF 2004
AMOS PETER ………...…………………..….…
APPELLANT
VERSUS
THE
REPUBLIC ….……..……………….…. RESPONDENT
(Appeal
from the Judgment of the High
Court
of Tanzania at Tabora)
(Mwita,
J.)
dated
the 10th day of August, 2004
in
Criminal
Appeal No. 74 of 2002
-------------
JUDGMENT
OF THE COURT
1 & 16 March
2007
LUBUVA,
J.A.:
In
the District Court of Nzega at Nzega, the appellant was charged with and
convicted of the offences of abduction and rape contrary to sections 134, 130
and 131 of the Penal Code. He was
sentenced to a term of imprisonment of one year and thirty years with twelve
strokes respectively. The sentences were
to run concurrently.
Briefly
stated, the prosecution case against the appellant was as follows. Angela Peter (PW1), the daughter of Peter
Manyama (PW2) aged about 15 years, was a student at Puge Secondary School
Upon
completion of the sexual intercourse, PW2, the father of PW1, accompanied by a
police man (PW3) knocked on the door of the appellant. The appellant opened the door and PW2 and the
policeman entered. The appellant was
arrested. The following day, the
complainant (PW1) was taken to the hospital for medical examination which
indicated that PW1 was two months pregnant.
Initially,
the appellant was charged for the offences of rape and abduction in Nzega
Criminal Case No. 111 of 2000. The trial
was conducted to completion by Rutechura, District Magistrate. On appeal to the High Court Tabora, the
proceedings were quashed and set aside on account of irregularities in the
trial proceedings. A retrial was ordered
before the same court and magistrate which has resulted in this appeal.
As ordered,
a retrial was conducted vide Nzega
District Court Criminal Case No. 88 of 2002.
In the trial proceedings, unlike the previous one, the complainant,
Anjela Peter (PW1) testified. In his
defence, the appellant denied the charge claiming that the case had been framed
against him by PW2, the father of PW1 because PW2 was suspecting him of having
an affair with his (PW2) wife. He said
there was bad blood between him and PW2.
To support the claim that there was bad relationship, the appellant
tendered a letter of agreement from the Ward Executive Officer, Puge. The letter shows that the appellant had been
ordered to apologize for uttering insults to PW2 and pay 15,000/= to him. Furthermore, it was claimed at the trial that
PW1 had conceded to have had sexual intercourse with the appellant without her
consent. The trial magistrate rejected
the appellant’s defence of bad relationship as an afterthought and that PW1 was
found in the room of the appellant at night time. The appellant was accordingly convicted and
sentenced.
In this
appeal the appellant appeared in person.
In his memorandum of appeal, among other issues, he raised the
following: First, that the courts below erred in basing the conviction on the
evidence of PW1 and PW2 which was a frame up against him. Second,
that because of fear that the magistrate would not be fair to him he had asked
the trial magistrate to disqualify himself from the trial. Third,
that because of the long standing bad relationship with PW2, fearing that the
trial magistrate may not record his defence correctly, he filed his written
defence which is not reflected in the record.
At the
hearing of the appeal, the appellant also addressed the Court. He emphasized that the case was a frame up
against him. He insisted that the trial
magistrate had conspired with the mother of PW1 to fix him. That this is so, he said is evident from the
fact that his defence in writing is not in the record. He was adamant that the trial magistrate was
bent on fixing him by hiding his written defence and that what appears on
record as his defence was the trial magistrate’s own version.
For the
same purpose, the record does not show that he had applied for the trial
magistrate to disqualify himself from conducting the trial of this case. He wondered how he could remain silent at the
trial in objecting against the trial magistrate conducting the trial if he had
written to the Resident Magistrate Incharge Tabora on the issue which was
replied by letter of 6.6.2002.
With regard
to the clinic card Exhibit P.1 the appellant said if anything at all, it was
proof that he was not responsible for the pregnancy of PW1. According to him, if in July 2000, when the
alleged rape took place PW1 was two months pregnant, it is incredible that on
9.12.2000 a fully grown child was born.
This again, he insisted, is indicative of a framed up case against
him. He also said there is no medical
evidence from the Doctor who examined PW1 to show that she had been raped.
Mr. Mdemu,
learned State Attorney for the respondent Republic supporting the conviction
and sentence firmly contended that the evidence of the complainant (PW1), PW2
and PW3 was sufficient to sustain the conviction. He submitted that PW1 was supported by PW2
and PW3 who found PW1 in the room of the appellant. Furthermore, the State Attorney insisted, in
his defence at the trial, the appellant admitted having had sexual intercourse
with PW1 with her consent. Concluding
his submission, Mr. Mdemu said if the evidence of PW1, PW2 and PW3 is believed
as the courts below did, there was sufficient evidence to support the
conviction.
There is no
dispute that the appellant was convicted solely on the basis of the evidence of
the complainant (PW1), her father (PW2) and the police officer (PW3). We shall first deal with the offence of
abduction in the light of the evidence of these witnesses. The offence of abduction of a girl under the
age of 16 years is provided under section 134 of the Penal Code which provides:
134. Any
person who unlawfully takes an unmarried girl under the age of sixteen years
out of the custody or protection of her father or mother or other person having
the lawful care or charge of her, and against the will of such father or mother
or other person, is guilty of a misdemeanour.
From these provisions of the law it is apparent that the
essential element of the offence is the act of unlawfully taking an unmarried
girl under the age of 16 years out of
the custody or protection of her parents or any other person having the
lawful care or charge of her. In this
case the question is whether PW1 was taken out of the custody or protection of
her parents including PW2. The evidence
of both PW1 and PW2 clearly shows that at the time of the alleged offence, PW1
while schooling at Puge
Secondary School
Under such circumstances, can it be
said that the complainant who was living at Puge away from her parents was
abducted during the time she is alleged to have been in the house of the
appellant. Admittedly, in the course of
her stay at Puge, PW1 would ordinarily have visited other places without
necessarily the sanction of her parents who stayed at Mirambo Itobo. All the more so, for those in the
neighbourhood of the house where she was staying at Puge such as the appellant.
In that
situation, considering the time factor and the whole circumstances in which the
alleged offence took place, it is doubtful that the offence of abduction as
provided under section 134 of the Penal Code had been established.
Following
the complainant’s (PW1) visit to the house of the appellant on 20.7.2000 the
prosecution case against the appellant was that the appellant had sexual
intercourse with PW1 without her consent.
As said before, the evidence was based on PW1, the complainant and her
father, PW2. This is the evidence that
the appellant seriously challenges to have been framed against him by PW2. The appellant has consistently raised this
issue not only at the trial leading to this appeal but also during the previous
trial which was quashed and set aside when a re-trial was ordered. It is imperative therefore, to examine this
evidence closely. The crux of the
appellant’s assertion is that there was bad blood between him and PW2. This is so, according to the appellant,
because PW2 suspected the appellant of having an affair with his (PW2) wife.
The allegation of bad relationship between
the appellant and PW2 is supported by the letter of agreement Exhibit D.1 of
16.4.2000 witnessed by the Ward Executive Officer Puge. The agreement shows that the misunderstanding
had something to do with PW2’s suspicion that the appellant had love
relationship with his (PW2) wife. The
appellant allegedly uttered unmentionable insults to PW2 and was to apologize
and pay PW2 15,000/=. Against this
background, it was important to examine the evidence of PW2 meticulously.
The claim of PW1 that she was raped is
supported by PW2, who, the appellant charges should not have been relied on. What is the other evidence in support of PW2? There is the evidence of Det. Constable
Michael (PW3) who testified that on 20.7.2000 he was informed by PW2 that PW1
had been seen at the appellant’s house.
He accompanied PW 2 to the house where PW1 was found with the
appellant. Thereafter, the matter was
taken to the Police Post at Puge. It is
not shown where exactly was PW3 at the time PW2 informed him of the
matter. Whether it was at the Police
Post Puge or elsewhere it is not clear.
As it is, as the appellant urges, the matter is open to suspicion that
it was a pre-arranged plan to fix the appellant in which PW3 could well have
been recruited. It raises doubts.
There is
yet another aspect of the matter. If
according to PW1, the complainant, it was at about 7 p.m. when on 20/7/2000 she
got into the house of the appellant for the first time, it is curious that
shortly PW2 who was living at Mirambo Itobo, 28 kilometers away from Puge,
surfaced at the house in the company of PW3, the Police Constable. Another curious aspect of the matter is that a civilian, one Revocatus who
accompanied PW2 and PW3 to the house of the appellant was not called to testify
in court. There is no reason given why
he did not testify. In the absence of
explanation how and where PW2 reported the matter to PW3, the appellant’s claim
that PW1, PW2 and PW3 conspired to fix him up may well be founded. It raises doubt against the prosecution case.
Medical
evidence was necessary to support PW1’s claim that she had been raped. It was not enough for PW2 and PW3 to state
that they found PW1 in the house of the appellant. There is no medical evidence to show that
rape had taken place although the learned judge says the medical examination
indicated that PW1 was two months pregnant at the time of the alleged
rape. Even if it is taken that the judge
was referring to the PF3 in which it would be shown what the doctor had found
after examining her, the PF3 was not tendered at the re-trial, subject of this
appeal. The evidence of PW1 and PW3
clearly shows that the PF3 was tendered in the previous trial. On the other hand, if the reference to
medical examination related to the clinical card Exhibit P.1, this had nothing
to do with the charge of rape. With
respect, we think the learned judge misdirected himself on the medical
evidence. In this light, in the absence
of medical evidence, the charge of rape is based on the bare word of the
complainant (PW1) alone.
On the
other hand, we shall consider whether the appellant’s claim that there was
grudge between the appellant and PW2 was considered. At the trial the appellant raised and
tendered the letter of agreement Exhibit D.1 in which the matter was settled
before the Ward Executive Officer, Puge.
The trial magistrate rejected it as an after thought. In the
first appeal in the High Court it appears that the learned judge casually
touched on the matter. The learned
judge merely observed that the appellant had alleged in his defence that the
evidence was concocted by PW2 who suspected the appellant of having an affair
with his (PW2) wife. He also referred to
the Exhibit D.1. However, the learned
judge did not address the issue any more.
We think,
with respect, it was a serious misdirection on the part of the learned judge in
not addressing the issue of the alleged grudge between PW2 and the appellant. The allegation was supported by evidence from
the Ward Executive Officer, Puge in Exhibit D.1. Then the appellant had consistently raised it
at the trial and on appeal before the learned judge. Furthermore, there is the serious issue that
the appellant had expressed his apprehension that he had no confidence in the
trial magistrate who he wanted to disqualify himself from hearing the case. On this, the appellant wrote a letter to the
Resident Magistrate Incharge, Tabora. By
letter of 6.6.2002 from the court of Resident Magistrate Tabora, Annexure “A”
to the petition of appeal to the High Court, the appellant was advised to raise
the issue in court.
Above all
the allegation that the appellant had filed his written defence is also a
matter of great concern. If indeed that
was so it is most curious that it is not shown on the record. Its absence from the record if at all, raises
doubt. It is common knowledge that the
Court normally goes by the record, but given the circumstances of this case, we
think with respect, that had the learned judge on first appeal addressed and
considered these matters, some of which could well be true, very likely he
would have come to the conclusion that there was still unresolved doubt in the
case.
It is a
cardinal principle of criminal justice that doubts are to be resolved in favour
of the accused.
For the
foregoing reasons, we are satisfied that in the totality of the circumstances
of the case, the case against the appellant had not been proved beyond any
reasonable doubt.
Consequently,
the appeal is allowed, conviction quashed and sentence set aside. The appellant is to be released forthwith
from custody unless otherwise lawfully held.
DATED at
MWANZA this 16th day of March, 2007.
D. Z. LUBUVA
JUSTICE
OF APPEAL
J. A. MROSO
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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