Omary Said and Another vs The Republic (Criminal Appeal No. 10 of 1994; Criminal Appeal No. 9 of 1994) [1999] TZHC 177 (17 August 1999)

IN Tr-IE HIGH COURT OF TANZJNI:\ CRIMIN''LL \FPS.'',L NOo 9/94 & 10/,4 ORIGIN,lL B B lTI D !C CRoCo Nonl33/93 ~ · Oivh.RY s \ID O O O O O O O 0 0 O ft O O O O 0 ... "..PPELL ,"JJT versus THE REI'UBLIC n o o o o o o o o o o o o o · RESf=Ot-JDENT : -:. JUDGMEIJT In this appea.l which is consolidated., there are two appellants Ii • namely:-- Omari Saidi - 1st appe:J,.lant Ramadhan Sima - 2nd appellant They were'.cha.rged with the of.fnce of rape c/s 130 an«. 131 of the penal code., It was alleged that the tw9 1 .f;P;P,lru.:i-;t '· . . . ... on 11th of ·pril, 1993 at -'3.bout· 20,00hrs at sigin 0 village in Baba ti District, raped one ·sha d;o Hassan., The two appellant were convictted. and sentencq to twenty (20) . . - imprisonmento They are appealing against both conviction and sentenceo It was the prosecution evidence tl;l.rough Po :11 .. \sha , Hassani, that as she w:::ts wclking to her home at about 8o00pm, she me the two appellants who \o1ere knovm to her as they live in the same nl 8 ce" She said that. the. two appellants held her and pulled her. in to a nearby house and started raping hero P-Jl to1d the court that the 2nd -9.ppellant, '\ Ramadhan, w 3 s the first one to rape b.(0r.,/ · The witness said .,_, that She shouted for help and people came to her escue and .· among those who res.cued. her was her hu$band - P.io2 Iddi Mohamed" .·:..ccording _to P:r/1 9 the culpits · rEm away when

people c-3.me at the sceneo ·p,.Jl said that. as El: result of the act~ 8he was bleeding very much from he;r: vagina~ She also said th3.t she was stx months pregnant, a.t.·the-.time ·she, ,, - ,, was rapedo PW2 - Idd:i, -Mohamed also told ·the court th2.t PWl told him that the rape acto police on the she was bleeding very Both H·ll & PWo2 S.9.id sa:me right and given much. as a res.:ul t of th.3.t p,n_ W8.S sent to the PF3 which she took to the hospital for medic-al ex9_mination o The :PF ? was tendered by the prosecution as exhibit Po3o \ccord_ing to the evidence, the act of rape W8.S committed at 8000 porno· on ll/ 1 +/130 PWl was examined by the doctor on 12/4/930 The endorsement on exhibit Po3 reads BS follows: --\· 0 ... 0 0 ... 2/ /-

2o Vaginal intact 3& Cervix intact 1+0 No evidence of preginancy clinically Few sperms isolated . ' ' - ·"·•-<. Qpini on: .•, ·\ The presence of sperms in the absence .of physical ,. . -~ . :) ,·;._, -·· ' . injury is not c·onclusive of sexual_ .. ssaul t - or re.pe" o [.C C Ording t O p O '(:J' 2 - Iddi JVl ohamed ·and· ·P.; 1.:L. 3 ,. .. :bubakari Yasini' they were the ones who heard P-::n.····;aifTng· i'or---h-ip _ .:3,p_q wen:t··;' ')i<" ·<·- to rescue her., 'ccording to those witnesses the - appej:1.;;-ts __________ _ ran- into the house of one Rama.d.han Monko which was - in:-:g_ \tieinity., P.,Wo3 told th~ court that. the h<;mse was guq.rded till the following day when the '3.ppellants were arrested.· .'., , .. On the side of the appellants, they both denied to have raped the c omplainari.'f o The 2nd appellant, Hamad.h;rii .·Suma·, . . told the court that Po':.J.,2 ... Iddi Moh9.med, who is the husb~.d.,. of the complainant had grlli1ges wtth him bec.9.use he W"3.s· .. : . , . alleging th2,t the qppell:int w3.'s having sexual afftirs with .... . :. : The 2nd ,::ip:.-ellant sc.t..9d th'l.t he• w.:1.s. : : .. 1 the compl3.inant., attacked by F.,W.,2 the 1st appell,.nt ... and others:nrrithout. any reqsori O Simil?-rly - .. told the court that n.i: --:r•i ved; at· the sc~~e . where he found P .. W.,2 B.nd, -others who ·attacked· him without any reasons o The evideric-e of the ::1ppellant 'vrn:s supported by the evidence of ·\sha - 1 thum:::i.ni l This witness told. :t)e. court that on the material_ -di,y· at ,-,,bout 8. ::s°Opm o the 2nd _appellant was at her place wher,e he .h2.d takea supper., :The yJitness said that Pod2 - Iddi arrived at thi.place artd .called the 2nd appellant out and when the 2nd appellant wept_ out, Po 1 •'1o2 . • •• . •• 1._ .... :,: · •• started attacking him sayi:p.g that he" had r,:1.pped- the complaint o \ccording to the witness, . there ·were 13.bout seven people.. • c-i·. \sha 'lthumani s3.id_ further thRt while she was ther,. the 1st appellant ca.'T!e at the place o The witness . said, that she . : ,: heard one of the attakers shout, and. I quote:-~ '· ·· 11 Huyu chalii tulikuwa tunamt::1.futi amekti'ja!I o· .-- •';.ccording ,to the wi tneE>s the 1st appe:Llant was . qlso attackedo -\ . .'.. ·'•· .. ~·

Aisha said that the - two appellants were s-eriously - - injured in the attack by PoWo2 and his colleagues~ This piece of evidence was :supported by _the .. evidence of Po W )+-- 'l.lly Ramadhani vih·o told. the cort that he found the 2nd appellant bleeding from the heado It ir; very unfo:rtuna.te that the learner'l_ trial magistrate did not subject the evidnee to scrutiniS:?,,to establish credi- bility., The learned trial magistrate reffered· to the evid.en-ce 8.nd believed the prose9ution evid(->nce without refering to the defence or stti.:p.g ·as -to why he did not believe the defence witnesses., .. , There was a glaring contradiction in the prosecution evidence with regqrd to the evidence of F''11 and P·l2 o It will be recalled th9.t P\ll to.ld ·the court th-'lt as a ·result of the rape 7 the bled from her- vagina and that'Rt the material time she w1.s six months pregJ).:11 o p141, w_r.:i.s exmined by a doctor on the following. d,y but· -:ac_cord·i•g{i-o exh:tbit :_P -1- which w.g_s tendered by P\Tl the doctor ,,did not find any · physicql injury in the VcJ.gina or cervix of P1iflo The finding of the dctor hs been reproduced above and it clearly 4lontr-.:i.dicts the evidence of PWl., The doctor / could not cliniclly ditecc Rny sign· of pregn'3.ncy while PWl h?.d told the court th9.t s11e 1 ,r1.s six months pregn8.nt., Exhibit Pol WA.S tendered by the prssecutiono The prosecution must have known the contents of exhibit Pelo It is cler therefore th'3.t Fil told lies th!J.t she was bleE:-ding. from her va:sin-?- as a result of. r3.pe nnd th')t she. W9.S six months _ pregn3.nt O Simil.:=irly 9 P·l .,2 told. list that P'.v1 W3..S bleeding as a result of ·beig r,1p2do It me9.:ns th-:i.-t _PWl & F12 [:J.re not credible witnesses o Since it is the prosecut,i_on .. vJ.hO .. ' . : ,. ' ~ . .,. ·. . '•· '. . tendered exhibit·- 'p1 whose contents contr:1.dicted major. ' . . . . .. · ..... ,. . t .. ,. espects of the evidence of F"1 & P:!2 7 it means .. ,that,.th~., .. .. .... .. ,. . whole evidence of. PWl .& P..-J2 is rende_red, wqrt;hlr~ss o. '.: 'l'he :- learned tri -=i.l m-::i.gi-s.trBte did not 3.t :3.ll refer to the exhibit· ~fter receiving it during the proceedingso ,, I The other espects of the prosecution evidence 9.lso suffer from serious suspicion 3s to its truthfulnesso It is the prosecution evidence th'lt the "rl\e_.1= '3.nts took the victim to the nearest house where orre>. of them raped hero 0 O C o O o.4/ /- ·

4 . . . : . ,·., ·· It is als.q .. in .tl1~ ,evi¢.lenqe. th8.t- o"'.le of the.y,ppell8.ri'ts~ s-toud \ t at the door to prev!?.n-;t:;, plc?ople ;fpom · going to :rescu,e .the· victim•o•: It is doubtful thqt. the appellpts would take:the-victim to the house of someone without knowing wpther or not there - ws someone in thqt houseo It w'ls in the evidence of Pvr2 •; •.·; •:;•· • . • •. • • I . • ; . • • . • . ') ' •' . • I' • tli 1.t botb .ppell -hts r'ln rom the house where-' -~~1e, offenc(;?_ . .i: '·, . : . :- ·.: . ~ . . : _- ' . ., .. wqs be".lg corpini tted 9.lld entered in. the house _ of one Mohqmed . , . . ... ·l;. t, ,) ·_ . :_. . .. - . I • '· • .-. • .-. • • ._ Mongo in the s3.me 'lre'l_., There is no informSt.tion 8.s to wh'lt , .. · . . - . . . - happened -'lfter th-"ppell.qnts . h,::,- enterd:,in th:1.t house". There is eviderice, however th<:>,t be-th appell-:mts were eriously .· injured 3.nd they ,were bleedingo . This __ fc1.ct w 1 s upported by P'tl o4 who sqid he s'lw the second !3.ppell8.nt. md -h-:it he h:=i.d, been injured on the-heado Both 3.ppell,::,illts testified thqt they were seriously assaulted by PWol and his colle:J.gues without . . . . . : ·. . . ·;. ,my re"l.SOn- DTrlo4- \sh-'1 rthum9.ni told the COJ;rt t;l-1-:it the. .?.nd 'iha t evening- an9- whi fo in th2. t 7 )lace PW. 2 c1Uia- !iii.,, out and . when 2na:-- . 8.ppell :mt W':'lS .3.t her house Jappell!'J.nt -got out, Ev 2 _st<1.rted besting himo \s ,f hqve, stated 0 qbo;eo .. rno4. =110. ~~id. thqt the first ::1.ppellmt· ·q_rriv2d 3.t the pl:1ce where· the 2nd ._ . . . . . . - appellant was being ss'.3.ulted :1nd one of the attqckr shouted th3.t the first ::tppell3.nt W-3.s alo, being sow;ht <md. th~;Y st 0 rtq_ __ 9.tt"l.Cking him o The_ prosecution evidence did. not .'.3. t cill s_tClt.e how the '1ppell911ts h:1.d receive the injuries a_ The only :-1.CCOunt ,'J.S to how the sppell.!:mts received tpe . iD:juries i$ from their own ::tccount <ind th.9.t of DW,Ao . ,\s this evidence is not chRllenged, it is ccepted qs truthfulo From the -i.bove an-'llyisis 8f the whole evidfmce: .it· is ,cleB.r· thq_t hr-i.Q thl? le1.rnC?d tri -il m<:1.(sistrnte subjected, ,the,? e:videhce to cc1.reful scrut:. he· would h·:rve found th1.t t-he def.e:nce evidence.· w':s -redib1:!=. and that the, prosecution evidence was not worthy of b.elieve,,' .·> v RT -- /,f For- ~~~:'bove re'1.sons, these appe9.ls :tre 9.llowedo--· The·. '" 1 "" / • +-. '•). ·\ h d d th . t . d h .J,."<-/on?/1?+,_I,1 l.- 1 qur-:ts. 2 '3.n e sentence is se · :1si e .. ·Te /'- I ap:6,eliq_i1:t-, 3.rff to be sat free. forthwith unless otherwise ; :r. ; t~ ,.. ~ ·: t r,...& \ \· I 1'3..W-fully-;heldo> 1 \u:\ :;. ·: . > >1 , ~ ' . , ~ ,, -•·.-c· · _ : . .-, --~ /.A.' ." "-.. I '_ ------ ~ ,, .. , 0 -~~- 11/8/99

17/8/99 Coram: NoMo Mushi 9 Jj Appellants:- Ramadhani Sima 5

• Omari Said - present Mrso Lyimo:- PSA for the Republi~ Judgment read in chamberso 17/8/9':J I' 1 '' l-11 1 '. 1 _