Ndikumana s/o Philipo vs Republic (Criminal Appeal No. 276 of 2009) [2014] TZCA 2174 (3 March 2014)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT TABORA fCORAM: MSOFFE. J.A.. KIMARO. J.A.. And MJASIRI, J.A.) CRIMINAL APPEAL NO. 276 OF 2009 NDIKIJMANA S/O PHILIPO.............................................APPELLANT VERSUS THE REPUBLIC ......................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tabora) (Kaduri, 3.) Dated the 3rd August, 2009 in Criminal Revision No. 196 of 2008 JUDGMENT OF THE COURT 26th February & 3rd March, 2014 MJASIRI, J.A The appellant, Ndikumana Philipo was charged and convicted of three counts of rape contrary to sections 130 and 131 of the Penal Code, Cap 16 R.E. 2002 and was sentenced to thirty (30) years imprisonment on each count. The sentences were ordered to run concurrently. He was
aggrieved by the conviction and sentence and he appealed to the High Court. His appeal was unsuccessful. Still aggrieved, he has filed his second appeal to this Court. The appellant has filed a nine - point memorandum of appeal. His grounds can be summarized as under;
- The case against the appellant was not proved beyond reasonable doubt
- The evidence o f PW1, PW2 and PW3 was not corroborated.
- Failure to comply with section 240(3) of the Crim inal Procedure Act.
- The conviction o f the appellant was against the weight o f the evidence. The background to this case was that on November 6 and 7, 1999 the appellant was alleged to have raped Nihokubwayo d/o Sophia, Ntahondi d/o Spencie and Niyonkuru Jackline at Kinembwa Refugee Camp, within Kibondo District in Kigoma Region. It was alleged by the prosecution that the appellant posed as a medicine man (local healer).
When he was asked to treat the three victims PW1, PW2 & PW3 on separate occasions, he removed the victim's relatives from the room, put ! out the light, made the victims unconscious by giving them a concoction Of drugs and then raped them. He denied committing the offence. At the hearing of the appeal, the appellant appeared in person and was unrepresented and the respondent Republic had the services of Ms. I Juliana Moka, learned State Attorney. The appellant, asked the Court to adopt his memorandum of appeal as part of his submission. He opted to address the Court after hearing the submissions of the learned State Attorney. Ms. Moka did not oppose the appeal on counts number 1 and 2. According to her, the offence of rape was not proved in respect of the first two counts. She argued that both PW1 and PW2 were unconscious when the alleged rape occurred and penetration could not be proved. In relation to the PF.3 reports, she submitted that the reports were wrongly admitted by the trial court as section 240(3) of the Criminal Procedure Act, Cap 20,
R.E. 2002 was not complied with. She asked the Court to expunge the reports from the record. She stated that in the absence of the PF. 3 reports, penetration could not be proved hence the offence of rape was not established. With regards to the 3rd count, she submitted that the circumstances are different. PW3 was conscious. She saw the appellant lying on top of her and she saw him moving away for from her without having any clothes on. She found sperms, and she immediately narrated the incident to her husband. On ground No. 1, Ms. Moka was satisfied that the charge of rape was proved beyond reasonable doubt as there was sufficient evidence on record. With regards to ground No. 2, on corroboration Ms. Moka submitted that in view of the provisions of section 127(7) of the Evidence Act, Cap 6 R.E. 2002 no corroboration was required.
In relation to ground No. 3, on non-compliance with section 240(3) of the Criminal Procedure Act, she readily conceded that there was non- compliance and she asked the Court to expunge the P.F.3 reports. As far as the fourth ground is concerned, she submitted that there was sufficient evidence to establish the offence of rape in relation to the third count. We on our part entirely agree with the learned State Attorney in relation to the third count. It is evident from the record that PW3 saw the appellant on top of her, without any clothes, found sperms and reported the incident to her husband. Given her testimony, it is evident that there was penetration. It is settled law that the best evidence of rape comes from the victim. See John Martin @ Marwa V. Republic, Criminal Appeal No. 22 of 2008 CAT and Seleman Makumba V. Republic, Criminal Appeal No. 94 of 1999 CAT (both unreported).
"Penetration however slight is sufficient to constitute the sexual intercourse necessary for the offence." Now coming to counts No. 1 and 2, we entirely disagree with the submissions made by the learned State Attorney. We must admit at the outset that the circumstances of 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 of their families. This strange request came from the appellant. They became unconscious and on coming round, 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 of rape is that of avictim. John Martin @ Marwa(supra).
"Notwithstanding the preceding provisions o f this • section, where in crim inal proceedings involving sexual offence the only independent evidence is that o f a child o f tender years or o f a victim o f the sexual offence, the court sh all receive the evidence, and may, after assessing the credibility o f the evidence o f the child o f tender years or as the case may be the victim o f a sexual offence on its own m erits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child o f tender years or the victim o f the sexual offence is telling nothing but the truth . "
The requirement under section 127 (7) is for the Court to be satisfied that the witness is telling nothing but the truth. No corroboration;is required. Both the High Court and the District Court found PW1 and PW2 as credible witnesses, and relied on their testimony. This Court has stated time and again that except on points of law it would not readily interfere with the concurrent findings of fact by courts below unless there are serious misdirections, non-directions, or misappreliansions or a miscarriage of justice. See Salum Mhando w. Republic [1993] TLR 170, Jaffari Mfaume Kawawa v Republic 1981 TLR 149 and Musa Mwaikunda v Republic, Criminal Appeal No. 174 of 2006 CAT (unreported). Recent decisions of this Court have established that the Court has to look at the peculiar circumstances of 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 of 2013 and Minani Evarist v Republic Criminal Appeal No. 124 of 2007 and Hassani Bakari v
Republic, Criminal Appeal No. 103 of 2002 CAT (all unreporeted). The narration given by PW1 and PW2 sufficed under the circumstances to establish the offence of rape. The strange scenery created by the appellant was clearly demonstrated by PW4, PW5 and PW6. This shows the pattern and style of the appellant's modus operandi. Taking into account the sequence of events in this case, the only person who could have committed the rape was the appellant. After carefully reviewing the totality of the evidence on record and the submissions made by both the appellant and the learned State Attorney, we are satisfied that there was sufficient evidence to prove the offence of rape against the appellant on both counts one and two. We note that the High Court Judge wrongly opted out of making an order for compensation for the victims of rape. This was contrary to the mandatory provisions of section 131(1) of the Penal Code which requires the Court to make an order for compensation of an amount to be determined by the said Court.
In fine, we find the appeal devoid of merit and we hereby dismiss it accordingly. In exercise of the powers vested in us under section 4(2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002, we hereby order the appellant to pay Shs. 500,000 to each of the three victims. It is so ordered. DATED at TABORA this 28th day of February 2014. J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. 5AMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL