Benedict Buyore @ Bene vs Republic (Criminal Appeal No. 354 of 2016) [2018] TZCA 787 (18 September 2018)

.. . IN THE COURT OF APPEAl -OF TANZANIA .. AT TABORA .~. -~ ... • · (CORAM: MUSSA, J.A., LILA, J.A., AND MWAMBEGELE, J.A.} ... . • ,- ~.;,·.o;-1 ._, :·· ;~:~l':1-"J• . "• lr!tfv', CRIMINAL APPEAL NO. 354 OF 2016 .BENEDICT BUY..QB.E.,I'g) BENE~~:~:-~·:.::;~.:.::::· ... :":: ......................... APPELLANT VERSUS THE REPUBLIC .. •••••••••••••••••••a•••••••••••••••••••••••••••••••••••••••••• RESPONDENT {Appeal from the Judgment of the High Court of Tanzania at Shinyanga) {Ruhanqisa, J.) Dated the 17 th day of June, 2016 in DC. Criminal Appeal No. 13 of 2015 JUDGMENT OF Ttt1:··couRT 3 rd September & 19 th November, 2018 MUSSA, J.A.: - In the District Court of Maswa, the appellant was arraigned and convicted for rape, contrary to sections 130 (1) (2) (e) and -131 (3) of ~ I : '4it 1· " · .(!- \~( ,,_ ,, tbe- ,p,enal:-Eode,--Cha pter 16 of the Revised · Ed ition::.20.00· of' the Laws of - . Tanzania. Upor:, conviction, he was sentenced to a term o( thirty years , - imprisonment. - His -first appeal to the High Court was dismissed in its entirety (Ruhangisa, J.), save for the se.r,tence which was enhanced to !1.:-, · <-, ., • • • ., .. ~ t,.,..,. i!j: ,. • .. .. . ····1 life imprisonment. ~:~- 1 The ?ppel'lant is aggrieyed and presently cseeks to impugn :the verdict of the High Court by way of a memorandum· of appeal ½!hich is .. ,. .. ,. ·,c compffsed of foμr points of grievance: Ahead orcfur_ consideration of . - ... •'·"·""~whatever--are the issues of. contention •~in-"this~-appeal; we think it is-- - • - ·· - necessary to explore the background of the case, albeit briefly. · During the trial, the case for the prosecution was upon a charge sheet which alleged that on the · 23 rd day of February 2014, at Malampaka Village, within Maswa District, the appellant raped a -certain "DJ" (PW1) who was then nine years of age. Subsequent to a voire dire test, PW1 introduced herself as a standard one pupil of Mwenge Primary School at Malampaka Village. The infant previously knew the appeHant in the name of Bene. She told the trial court that on the fateful day,· the appellant stopped he'r around 2.00 pm or so, as she was walking towards home from school. The appellant then took the kid to his residence on the pretex that he had her grandmother's parcel which he (the ap~JJan~) tot~ng~Q .. ~Q._giv~ her. Soon after, the agpell~11tc;J9~Jb.~ .... ,. . .. ... ,......,,... ~-- entry door to his,ir-esidence, undressed the little girl and raped her. Having finished the ungddlt' 9 ~~, the appellant thr.eatened PW1 that, he, _., ;·. will kill her if she disclosed t,he incident to anyone. 2 The victim recalled to tiave experienced ;untold pains : as sJie ' walked towards home; UpoQ arrival, her aunt, namely, Sali.Mange (PW3)- . itnm_ediately beca'tn'e suspicious much as PW1 was "riot walking'_'nor~ally· aod_ was,.discharging. a-bad smell from -her: vagina. PW3.-then.,toek -PW1 to her (PW1's) grandmother, namely Devota Mange (PW2) who examined PWl 1 s genital area and found her to have bruises around her .vagina which was also discharging a bad smell. Unimpr.essed by what she saw, PW2 enquired of PW1; "Who did this to you?" By then, PW1 was profusely crying and gave no response. Thereafter, PW2 and PW3 reported the incident to Malampaka Police Station where they found · Assistant Inspector Joansen Justine Mkera (PWS). According to PW2, at the police station this is what PW1 told of:- ''PWl was interrogated by Police. She told me further that, she saw one Bene ground her (sic) Malampaka Primary School. That my granddaughter say {sic) that, one Bene called her to his house in order to give a parcel to her home:-:.:=rnen'"she. was raped by the accused person. " Corresponding r-emarks were told by PW3 in her testimony:- ''PWl did interrogated {sic) by police.' She replied -to . l the police/that, she was raped-by one Bene who stays 3 near Malampaka Primary School. She also admitted !~ i '- . {sic} to show the, police up to the scene. PWl and police {sic) went to D1islt the scene. '' t In his testimony, the Inspector (PWS) also replicated the detail about PW1 being raped by a certain Bene. He accordingly, issued a PF.3 to the victim and, from his testimony, it comes to light that the appellant was arrested on that same day and taken to Malampaka Police Station. In the meantime, PW1 was examined by a medical officer, namely, Ally . Subi Kilambulilo (PW4) who noticed that her genital parts were swollen · just as there were some bruises thereabouts. Upon his arrest, on the 24 th February 2014, PWS placed the appellant amongst four suspects at Malampaka Police Station lock-up. Then PWl was called and, at the inspector's prompting, she positively identified the appellant as her ravisher from amongst the four suspects. ,With this detail, so much for the version as told by the prosecution ,, . :::·\,vitnesses.during the trial. ,.,r..~•· _,., • .r,.?''..l¾.~·., , ..... ,,·r~; '~ \t",1 ·- ·1' In hi.~ reply, the appellant told the trial court' that he travell€d to . -.~ .' Tabora on the 20 th February, 2014 and arrived back home on the 2-2 nd February, 2014. On the 23 rd February, 2014 he was busy distributing 4 pork meat to his customers only to be arrested by "sungusungu" leader 1i t ,' ' ,, : ( and implic~ted of the rape.accusation which he c9.tegorically denied. The ""'--:'•appellant said the alleged victim-,wa·s·not previously known to him as he· ~··---···~ __ , ___ ·=·.sa.w. her, for the first.time, __ atthe police.station when she was brought to - identify him. He brought a witness, namely, Omary Mzee (DW2) to fortify his account that he travelled to Tabora on the 20 th February, 2014. That concludes the appellant's version of the episode during the trial. As we have already intimated, on the whole of the evidence, the two courts below were satisfied that case for the prosecution was estabUshed to the hilt, hence their respective verdicts. In his memorandum of appeal, the appellant challenges the decisions of the two courts below on the following grounds, namely:- "1. THA 7; the trial and first appellate court had grossly erred in law and fact by disregarded the identification of the appellant through unfairly conducted identification parade which was/is a ·• crucial issue in determining/resolving the case under the instant appeal. 2. THA7; · the trial and first appellate court had· wrongly relied on incredible witness - i.e PW7, victim, whose evidence was rather dragged and or 5 . . succumbing to pressure by the PWs so unvforthy • -4 ' ... . ' -~ be~ef. ~ t: . _3,,.,,1.THAT;. the PWl, victims_, failure to· mentk;;n her . . _ rapist at the earliest possible opportunities - i.e. -~·e1ifJ;2,~.PW3, renders the prosecution ·case,,.to ·be . shaky. 4. THA 0 the first appellate court erred when ignored {sic} the incurable intricacies between PW5 and PWJ and PW2, pertaining when the crime was committed as well as the time the suspect was mentioned as the rapist " - At the ~earing before us, the appellant was fending for himself, unrepresented, whereas the respondent Republic had the services of Mr. Shaban Massanja, learned State Attorney. The appellant fully adopted the memorandum of appeal but opted to let the learned State Attorney to first submit on the merits of the appeal ahead of his elaboration, if need be. The learned- State~:Attoiney--commenced his address by expr-esslng. · - ·· -, .,. ···· his disinclination to support the ,appellant's conviction. His sole rea·son ''/ for taking that stance was, according to him, that the ,evidence was at . variance with the charge sheet with respect to the date \JVhen the offence was committed. Whereas, he said, it is alleged, in the charge 4 ~ ~ ~ 6 sheet, that the offence was committed on the 23 rd February, 2014, the • • .. .. f • f" r. •'":• r, -\ ' ~ -:•. • evidence is to ·the effect that· the offence was committed on the • .21 st · ·,, · · .· . • • - . .ii"- February, 2014: It is•"noteworthy that the alleged 'discrepahcy is•''aTso .somehow reflected. ir::i,.g,r::ound No. 4 of the appellant's memor:andum •. 0f .. appeal. The learned State Attorney took the position that the discrepancy vitiated the conviction and, accordingly, he invited us to adopt the position taken by the Court in the unreported Criminal Appeal No. 274 of . 2009 - Massawe Mathias Vs The Republic where it was observed:- "The record of appeal does not reflect that there was . · any amendment to the charge sheet in compliance with section 234 (1) of the Criminal Procedure Act We are therefore of a considered opinion that the charge · in the ;rd count remains defective. In the event, we are constrained to allow the appeal on the Z1d count having found that the same is defective. " · The stance taken by Mr. Massanja was, understandably, fully "'-~,.,. -c:~,~t"'•"·"'t• ,,- fr~-~.:.i.i ·••~-, ..... --:· supported by the appellant in his rejoinder. We, nevertheless, invited ,. ei.thet side to additionally express their (€SP,ectiv~ positions on the • .j J • ... merits of the appeal, that is, aside from the aHeged variance between the charge ·sheet and th~ evidence adduced. Whereas Mr. Massanja · __ :1- expr-essed tfie view that the evidence overwhelmingly implicat-es the A- 7 appellant, the latter,. in contrast, invited us to allow the appeal ,on the r ,, , strength of the. grievances raised ip the memorandum of appeal. Addressing the issue pertaining to the alleg~d variance, we do not think, in the first::~/ttiat this case involves a variance between the charge sheet and the adduced evidence with respect to the date when the offence was committed. Generally speaking, the entire evidence was to the effect that the rape was committed on the 23 rd February, 2014 as alleged in the charge sheet The one and only witness who mentioned the 21 st day of February, 2014 was PW2 who, incidentally, did so in the . following words:- "That my granddaughter was raped on 21.02.2014. it was Friday. We have noticed that my · granddaughter was raped on 23.02.2014." [Emphasis supplied.] To say the least, having initially as~igned an incorrect date, the =witriess~\ivenf fu,rther and immediately correcte"ci tlie':,dafif of the incident -to the 23 rd February, 2014. In the circumstances, it cannot be stated that the -evi<:ferice of PW2 is at variance with the date stated in the ,,, charge sheet and, all said, we, respectfully, disagree with the learr:ied State Atto~,_ney who invited us .xto allow the appeal"'!on ac<:ount of the . .,, ·...:.c•f'..1i ...- ·-:.,..::.• - · . ...: ,.~'if .. . ••. ,~:'i ~ 8 t. • alleged discrepancy. In simi-lar vein, we a-lso -reject the ·corresponding t ,'.,: :,1 { \ ,•· , I .~•,.: ', complaint as .raised by the appellant in the fourth ground of. appeal.· We now turn to consider the appellant's remaining 9,rounds of . . ·~, . .,_,,.,.-,,_...,,., ·- _,;.,... -'~- -~,;- . ... •· ~ ", .... ,.,._ .. ,.r,;, . ~ , ..... · ,.,,, .... ,r.,,. ..,, .. appeal. If we may express at once, the appellant has a valid complaint in his first ground of appeal. The procedure adopted by PWS to facilitate the appellant's identification by PWl at the police station was a travesty and not worth the name of a properly conducted identification parade. Furthermore, the exercise was, after all, uncalled for inasmuch as, from the very outset, PWl indicated that the appellant was previously known to her. That piece of the prosecution evidence, we note, was discounted by the first appeUate court, in our view, rightly so. Coming to the second and third grounds of appeal, we note that, in both grounds, the appellant seeks to challenge the credibility of PWl. In this regard, it is often said that the credibility of any given witness is the fl}Onopoly of the trial court whose , presiding officer had the advantage of seeln~f aHcr observing the demeanor of the witness '1n"fi,e course of testimony. Thus, for one, a trial court's finding on the credibility of a witness is binding on the first appellate court un~ess there · . are dmumstances which -call for a·,re-assessment ,of,, the witnesse's testimony,. For another, on a :~second appeal, the <;ourt will not reverse,, 1 -...:.-?_;-- -·-......-ri-· •·--·•t-i -·· -- ... :;-.t-;-· 9 the concurrent findings of fact of the two courts below it, unless both ~ 1. ~· courts. compl_etely misapprehended the substance, nature -~md quality of _ " the evidence before it (See DPP Vs Jaffari Mfa·ume Kawawa [1981] In the matter under our consideration, the concurrent findings of the two courts below were to the effectthat PW1 was a credible witness and that her telling was nothing but the truth. True, she hesitated a bit in disclosing the appellant to PW2 but, in the course of her testimony, PW1 explained away her hesitancy in the following words:- : ''My grandmother has poused (sic} me a question that I quote. "Uinefanyaje. "I remain (sic} silent because Bene accused {sic} told me, I quote, ''nitakuua wewe iwapo utamwambia mtu." Given her age as well as the trauma of the moment, one can hardly doubt the plausibility of PWl's account. t -~ . ,.. .,.·;,.-:,,,' :;-·, ., .. , ,., •' To this end, we have· found no cause to fault the concurrent -~ - '. · , • • ... ·. , findings of the two courts below on the credibility of PW1 and, we just •· i-. as well find the second and third grounds of appeal to be unworthy of merit. On the whole, the appellant's defence was justifiably rejected 10 much as h1s travel detail did not, at all, relate to the .fateful •day. That +s . . . - • -<ff· . 1' • t . ·• ;;- t .. • _ to say, the appeal is wholly bereft of merit and we, accordingly, dismiss· . . . - - ~- - _, .. - it. _ DATED at.DAR.ES SALAAM this 18 th day of September., 2018 .. ., ... ·'"'"• .... K. M. MUSSA JUSTICE OF APPEAL S. A. LILA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL -- I certify that this is a true copy of the original. ~ H.S. MUSH! DEPUTY REGISTRAR COURT OF APPEAL 11