Baha Dagari vs Republic (Criminal Appeal No. 39 of 2014) [2014] TZCA 2162 (20 June 2014)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KIMARQ. J.A., MANPIA, 3.A., And 3UMA, 3 JU CRIMINAL APPEAL NO. 39 OF 2014 BAHA DAGARI .......... ........... .... ................ APPELLANT VERSUS REPUBLIC ............... ....... ......................... RESPONDENT (Appeal from the conviction and sentence of the High Court of Tanzania at Arusha) ( Sambo. 3 .^ Dated 8th day of April, 2011 In Criminal Appeal No. 80 of 2008 3UDGMENT OF THE COURT 16t;'& 2.0th June, 2014 3UMA. J.A.: The appellant, BAHA s/o DAGARI was in the District Court of Babati at Babati, convicted of rape, contrary to sections 130 and 131 of the Penal Code, Cap 16 and sentenced to thirty (30) years imprisonment. His first appeal to the High Court of Tanzania at Arusha was dismissed by the first appellate court (Sambo, J.) on 8th April, 2011. He now appeals to this Court citing four grounds. In summary these grounds of appeal convey a complaint that the evidence tendered by the prosecution witnesses was not sufficient to sustain his conviction beyond reasonable doubt.

Expounding, the appellant contends that the evidence of the complainant (PWi), the main prosecution witness, should not have been relied upon because she only testified in a generalized way that she was raped without specifying whether there was any penetration. Appellant referred to us our decision in Selemani Makumba vs. R., CRIMINAL APPEAL NO. 94 OF 1999 (unreported). This decision underscores the duty imposed on the prosecution to prove penetration. The appellant also complained of the production and admission of the PF 3 as an exhibit, describing its admission as offending section 240 (3) of the Criminal Procedure Act, Cap. 20. Failure to summon witness was raised as a ground of appeal. The appellant had in mind the Village Executive Officer, whom the appellant describes to be a key witness. It was around 1:00 a.m., the complainant whom we shall describe as LH (PW1) was at home sleeping. Also sleeping in the same room was her granddaughter, AH. This was the time when the appellant broke into the house. Alarmed, the complainant went to the door to investigate what was causing the noise. She was surprised to find the appellant already inside the house, waiting. The appellant proceeded to force her down, taking off

her under skirt. Because the complainant had no under wear on, the appellant took off his own trouser and had sexual intercourse with her by force. While the assault was taking place, the complainant and her granddaughter were shouting for help. Her son BT (PW2) re-called the fateful night. He was asleep in his house when he heard the commotion in his mother's house five paces away. In his evidence, PW2 testified that when he flashed his torch he saw the appellant still "sexing" the complainant. This is when the appellant disengaged from the complainant. PW2 intervened and the appellant begun to struggle with PW2 at the scene. Soon, more people arrived at the scene. They helped in the arrest of the appellant before tying him up with ropes. Appellant was first taken to the village office, before being transferred to Babati Police Station. The complainant tendered as part of her evidence a Police Form No. 3 (exhibit PI) which the police gave her for purposes of her medical treatment. In his defence, the appellant flatly denied that he had anything to do with the rape of the complainant. He claimed that he was asleep at home when the offence was committed. He was surprised when PW2 together 3

with area ten cell leader called at his house asking him to come out. When he opened his door he found the complainant, her son (PW2) and two militia guards who immediately arrested him. He was at the time not informed the reason for his arrest. When the appeal came up for hearing the appellant was not represented by counsel, he appeared in person. The respondent Republic was represented by Ms Lilian Aloyce Mmassy, learned State Attorney. The appellant reiterated his total reliance on his grounds of appeal and preferred the learned State Attorney to first respond to his grounds of appeal. At first, Ms Mmassy submitted her support of the appeal. She had basic three reasons why she was at first inclined to support the appeal. First, she believed that there was consent to sexual intercourse because the record of proceedings on page 6 appeared to show that the complainant stated that "this accused raped me with my consent." Upon checking the hand-written record of proceedings, the learned State Attorney realized that the trial magistrate used a symbol or short-hand "CT consent" to denote "without consent." The record should correctly read

"this accused raped me without my consent." Ms Mmassy secondly placed reliance in the decision of the Court in Godi Kasenegala vs. R., CRIMINAL APPEAL NO. 10 OF 2008 (unreported) to suggest that in the present appeal penetration was not proved. Thirdly, she believed that sections 130 and 131 (A) under which the appellant was tried and convicted, was too general and the particulars of offence do not support the ingredients of rape. During her submissions, the learned State Attorney had time to reflect back on the evidence. She soon realized that there was not only sufficient evidence to prove penetration, but the alleged defect arising from citation of sections 130 and 131 (A) of the Penal Code was not one of the grounds of appeal before the first appellate court nor in this Court. She conceded that the defect did not in any way occasion miscarriage of justice to the appellant who appreciated the gravity of the offence of rape he was facing. Ms Mmassy ultimately came around and opposed the appeal. The appellant was given a chance to respond to the submissions by the learned State Attorney. He had nothing to say apart from asking the Court to consider his grounds of appeal. 5

From the totality of the grounds of appeal lodged, we think the appellant's two complaints, first, admission , of the medical examination report (PF3), and secondly, the failure of a crucial witness (the Village Executive Officer) to testify; need not occupy much of our time. Regarding the PF3, the record of appeal shows that the appellant did not object when the PF3 evidencing the medical examination of the complainant was offered for exhibition as evidence. The trial court duly admitted this document as exhibit PI. The position of the Court on compliance with requirement of section 240 (3) of the Criminal Procedure • -» h ■ ■ Act on exhibition of medical examination report is well settled. Once the medical report like the PF3 is received in evidence, the law in mandatory terms requires the trial court to inform the accused of his right to cross- examine the medical officer who prepared that report: Alfeo Valentino v Republic, CRIMINAL APPEAL NO. 92 of 2006, (unreported). Failure to comply with this statutory requirement will result in the deletion from the record of the medical examination report concerned: see for example Masumbuko Madirisha vs. Republic, CRIMINAL APPEAL NO. 59 OF 2009, (unreported); and, Abilahi Mshamu Mnali vs. Republic, 6

CRIMINAL APPEAL NO 98 OF 2010, (unreported). In so far as the appellant is concerned, although he was not informed of this right, no injustice was occasioned on the appellant. This is because this medical examination report was neither included in the record of appeal nor was it relied upon by the trial and first appellate courts. On the second complaint, it is true that the appellant was arrested, and then tied up with ropes before he was taken to the village executive officer of Endanachan village, then to the Ward Executive Officer of Bonga. With due respect, we agree with the learned State Attorney that the complainant (PW1) and her son, PW2 were the actual eye witnesses to the offence and it was upon the discretion of the prosecution to determine whether to call the Ward Executive Officer as prosecution witness or not. In Ally Mkombozi vs. R., CRIMINAL APPEAL NO 7 OF 2007 this Court had the occasion to deal with a complaint that witnesses who had been at the scene of crime were not summoned to testify for the prosecution. The Court stated: "...As for the omission by the prosecution to caii witnesses from the neighborhood and omission to tender the underpants o f the complainant, our observation is that what

the prosecution was required to do was to prove their case on the standard required. They were at liberty to sort out which evidence they needed to establish their case. After all,, it is not all evidence which comes out during investigation is relevant for proving the case for the prosecution. This grievance lacks substance." The appellant's complaint lacks substance because it is upon the prosecution to determine the number of witnesses who should come to testify on the prosecution's behalf. With the appellant's two grounds of complaints out of way, the f central plank of the appellant's appeal in essence contends that the generalized way the complainant alleged that she was raped, does not prove that there was sexual penetration an essential ingredient of the offence of rape within the statement of law restated by the Court in Selemani Makumba vs. R. (supra):- "True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent and in case o f any other woman 8

where consent is irrelevant that there was penetration. "[Emphasis Added]. This being a second appeal the Court is invariably cautious about interfering with concurrent finding of facts by the courts below. In the rare occasions when this Court interferes, it does so only if there are any misapprehension of evidence or mis-directions or non-directions on the evidence, or there is any miscarriage of justice or a violation of some principle of law: Director of Public Prosecutions vs. Jaffari Mfaume Kawawa (1981) TLR 149; Daniel Nguru and Others vs. Republic, CRIMINAL APPEAL NO. 178 OF 2004, (unreported); and 1. Juma Saidi 2. Paulo David, 3. Vincent Lameck, 4. Mazengo Chati and 5. Hamisi Saidi vs. Republic, CRIMINAL APPEAL NO. 235 OF 2006 (unreported). The two main ingredients of the offence of rape which the appellant has urged us to find to be missing are- first, proof of sexual penetration and second, lack of consent of the complainant. The trial District Magistrate had earlier concluded that there was sufficient evidence to prove both penetration and the lack of consent when the appellant committed the offence. The learned magistrate said: 9

"... The accused was arrested in the house o f PW1. He [was] arrested during the night. PW1 told this court that after her house was broken into, the accused held her and unlawfully forced her to fall down. He undressed the underskirt o f PW1, later on ... undressed his [own ] trousers and sexed the PW1 without her consent PW2 witnessed the accused on top o f his mother, while he was sexing her. PW2 arrested the accused and caused her to be handed-over to hands o fjustices. To the view o f this court the prosecution side has established the charge to the required standard. The accused's evidence raised no reasonable doubt." [Emphasis. Added]. The High Court as the first appellate court concurred with the findings of fact by the District Court. Sambo, J. remarked that: "...Nobody will ever deny that he rthe appellant herein 7 was not the man arrested in that night raping the complainant (PW1). Events did not break to lead to uncertainty in the identification process. I hold that the ' appellant was correctly identified by PW1 and PW2, the prosecution witnesses in this case. The sworn evidence o f PW1 and PW2 did not need corroboration o f any kind." [Emphasis Added]. 10

On our part, we begin from the premise that proof of penetration is a mandatory statutory requirement under section 130 (4) (a) of the Penal Code, which provides: 130 (4) For the purposes o f proving the offence o f rape- (a) penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence; Several decisions of this Court have expounded the scope of section 130 (4) (a) in so far as proof of penetration in sexual offences is concerned. This scope is now settled that in proving that there was penetration it does not in all cases expect the victim of alleged rape to graphically describe how the male organ was inserted into her female organ. For instance, in Joseph Leko vs. R., CRIMINAL APPEAL NO. 124 OF 2013 (unreported) the Court did not agree with the learned State Attorney who had submitted that since there was no evidence to show that penetration did take place simply because PW1 did not say that the appellant inserted his penis in his vagina. The Court thought otherwise:

"Recent decisions o f the Court show that what the court has to look at is the circumstances o f each case including cultural background, upbringing, religious feelings, the audience listening, and the age o f the person giving the evidence. The reason is obvious. There are instances and they are not few, where a witness and even the court would avoid using direct words o f the penis penetrating the vagina. This is because o f cultural restrictions mentioned and other related matters. The cases o f Minani Evaristi v. R, CRIMINAL APPEAL NO. 124 OF 2007 and Hassani Bakari v. R CRIMINAL APPEAL NO. 103 OF 2012 (both unreported) decided by this Court in February and June 2012 respectively are some o f the recent development in the interpretation o f section 130(4) (a) o f the Penai Code". _ ; In Matendele Nchanga @ Awilo vs. R., CRIMINAL APPEAL NO. 108 OF 2010 (unreported) the* words spoken by the complainant were- " .... The accused person kicked my leg and I fell down and the accused person seized my neck and removed my underwear and started inter coursing me. He spent half an hour doing thatjob..." The Court was not in 12

any doubt that although the complainant did not graphically describe sexual penetration, what she said was sufficient to show penetration. The Court said: "As for penetration, again the evidence above shows clearly that the appellant's penis penetrated PW l's vagina. This is borne out by two aspects o f the evidence. One, PW l's testimony above is dear proof o f this fact. Two, PW1 was supported by PW2 who, as stated above, on arrival at the scene actually saw the appellant having sexual intercourse with PW1". The decision of the Court in Minani s/o Selestin vs. Rv CRIMINAL APPEAL NO. 66 OF 2013 (unreported) is another example where the victim of the alleged rape did not graphically describe sexual penetration. PW2 (whom we shall call CS to protect her modesty) heard cries of alarm from NB. Immediately, CS responded by going where the cries came from. f Inside NB's room CS found the appellant actually in the act which the trial court recorded as "copulation with NB". CS sought the help of PW3, a neighbour. Amongst the grounds of appeal which the appellant raised on his second appeal to the Court was that penetration was not proved because no evidence was led to show the presence o f semen on the

complainant. The Court did not agree. In so far as the Court was concerned penetration was proved. The Court stated: "...In this regard, there is eye witness account o f the victim herself and CS which shows that the act o f copulation took place. These two witnesses were found to be credible by both the trial court and the first appellate court. It is now a rule o f thumb that where two courts below make concurrent findings o f fact based on the credibility o f witnesses a second appellate court shouldrarely disturb these concurrently findings o f fact and can only do so if it is satisfied that the concurrent findings are on the face o f it unreasonable or perverse, or that there has been a misapprehension o f the evidence leading to miscarriage o fjustice or violation o f some principle o f law - see Azebio Nyenzi versus The Republic, Criminal appeal No. 336 o f 2008 (unreported) and Jafari Mohamed versus The Republic, Criminal Appeal No. 112 o f2006 (unreported)." The need to describe sexual penetration from perspectives of cultural backgrounds, upbringing, religious feelings and audience before whom sexual inter course is described, featured prominently in Ndikumana s/o Philipo vs. R., CRIMINAL APPEAL NO. 276 OF 2009 (unreported). The Court came out very clearly to spare the victims of sexual offence from the obligation to recount penetration during sexual intercourse in its graphical 14

sense. In this case the victims of rape were in fact unconscious when penetration took place. The appellant had posed as a traditional healer. He had a weird medication for his unsuspecting patients. While carrying out the "treatment" of his patients (PW1, PW2 & PW3) he removed their relatives from the room. He then put out the light and in the darkness made the victims ("patients") unconscious by giving them a concoction of drugs and then raped them. He denied committing the offence. On second appeal, the learned State Attorney supported the appeal contending that both PW1 and PW2 were in fact unconscious when the appellant committed the alleged rape and penetration could therefore not be proved. The Court did not buy that submission: "...we entirely disagree with the submissions made by the learned State Attorney. We must admit at the outset that the circumstances o f this case are bizarre and the two victims, PW1 and PW2 found themselves in a dark and evil set up. They were left alone with the appellant in stark darkness separated from members o f their families. This strange request came from the appellant. They became unconscious and on coming round, 15

they discovered that they had been raped. The appellant was the only person who remained with them hence it is only the appellant who could have committed the crime. As we pointed out earlier, the best evidence o f rape is that o f a victim. John Martin @ Marwa (supra)." The Court added: "...Recent decisions o f this Court have established that the Court has to look at the peculiar circumstances o f each case including cultural background, upbringing\ religious feeling and the audience listening. There are situations where a "spade" cannot be called a "spade" See Joseph Leko v Republic, Criminal Appeal No. 142 o f 2013 and Minani Evarist v Republic. Criminal Appeal No. 124 o f 2007 and Hassani Bakari v Republic, Criminal Appeal No. 103 o f2002 CAT (all unreported). The narration given by PW1 and PW2 sufficed under the circumstances to establish the offence o f rape. The strange scenery created by the appellant was clearly demonstrated by PW4, PW5 and PW6. This shows the pattern and style o f the appellant's modus operandi. Taking into account the sequence o f events in this case, the only person who could have committed the rape was the appellant." 16

From the foregoing perspectives of the scope of proof of penetration, we propose now to revisit how the complainant in the present appeal, described sexual penetration by the appellant and, without her consent. In her testimony, the complainant described penetration in several ways: "did sex me by force') "This accused raped me without my consentf "While this accused was sexing me I alarmed/1 and "Fortunately one B s/o T came to my home and he found this accused still sexing." [Emphasis added]. Again, the evidence of the complainant is not the only independent evidence here. B s/o T, the complainant's own son (PW2) described how he found his own mother pinned down on the floor. B s/o T described the episode using such words as: - "he was sexing my mother"; and "this accused was the very one who was sexing my mother" We are satisfied that the complainant (PW1) and her son (PW2) in their evidence, elaborated that sexual penetration actually took place, and it took place without the consent of the complainant. We think the law would fail to protect the victims of sexual offences if it would strictly 17

require of the complainants to describe sexual penetration only in graphic terms. In the upshot of what we have said above, this appeal is unmerited and is dismissed in its entirety. DATED at ARUSHA this 18th day of June, 2014. N.P. KIMARO JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I.H. JUMA JUSTICE OF APPEAL I certify that this is a true copy of the original. M.A. MALEWO DEPUTY REGISTRAR COURT OF APPEAL 18