Ezekia Simon vs Republic (Criminal Appeal No 76 of 1998) [1999] TZHC 328 (28 May 1999)

I. r,· I Before: EZEKIA SIHON 0000000000•0000000 APPELLANT VERSUS THE RE:PUBLI C 0000000000000000-oe RESPONDENT _ JUDGMENT fhe district court :of Mbeya sentenced the appellan~: to twenty-five years imprisonment consequent upon a conviction for Rapli\· contrary to sections 130 and 131 of the Penal Code. The convictio_rt-• ;md sentence aggrieved him, hece this appeal which was preferred and appellant himself. The appeal was resisted by for the Republic, 1-'lr. Mulokozi. arguei,before me by the 'Ji.' ? ' the l~~tned State Attorney ;''.i}f ; :. . .- : / ! ,:,.j" The material facts established in evidence were these. 'rhe complainant, Tumaini d/ o Kilemile (PW1), was the housegirl of Maimuna d/o Kasimu (PW2), a teacher at Itamboleo primary school.· She was aged 33 years. In the afternoon of 23.4.97 at 3.00 pm PW1 was washing clothes at a river. She was with Mawazo s/o Maganga who testified as PW4. 'l'he appellant and Ally Andongv1isye (DW2) arrve0 at +.he ,:-i,rAr together and found them there. The four persons were well known to one another. The appellant, according to PW1, then chased beaten. Mawazo away under threats that he would be Mawazo, however, denied tat he was chased away ·by the appellant. As PW1 was spreading a .bedsheet on the grass to d,rJ the appellant, according to PW1, held her by the mouth, fell her to the grnund, tore off her underwear (Ext. P1), and had sexual intercourse with her. She said the appellant did not threaten or beat her. The version · of the.appellant, as supported by Ally (DW2) and Mawazo (PW4), was that after the four persons had exchanged greetings and some jokes. the appellant 0 • 0 0 0 6 0 •• 0 /2

accidcn~-ally step:;;i')<', oD a 1,edE::1-2cc sprc~.d on the grass to ci..ry. PW1 became furious a".ld dem, ·.1c:•?(l t~,:at t:'le n.p)clla::1t rn-rr-sh the bedsheet and the appellant did so. Tl.:.e a·:,-,e 7 7 :m:'. ,., :J ·'".:',!2 t'.}en W3. 7 ke:l rn;a:· leaving PW1 with Mawazo (PW4). Shortly after tho aviellanc and DWZ left the place PW1 reported to PWZ that she was raped l': 1 the app2J.lantu They b0tl1 reported the incident at Chimala police post, e.".1c 1 nlc Kob,.., (PW3) issued a PF 3 (Ext. P2) and referred PW1 to Chimala Mission h:iopital for medical examination. A Clinical Officer at the hocpital? Isdo:7 Mwinp;i:ra ( also PW4), examined PW1 and passed on specimen to laborator? te:-:hn-i c:.2,.1 who did not testify. He saw no marks of violence. He saw sp:: :n -oz00;-,: tricl:nmnnas vagina.lis, anrt pus cells. The appellant WRS arresbd ;) 1 PW3 on 29.4?97 and charged in court on 2.5097. Sometime in Mc;° 'i9S'7 Te::1ensi Athuma11 (FvJ5) married PW1., On 1?.8e97, which was three months lci.te:-:-, the appellant allegedly went to the house of PW5 with Mawazo (PW4) 2nrJ. aE'.rc-rJ. to be forgiV8::lo The trial was still in progress and PW5 tol"', the appellant that the request should be taken to the then guardie::i of ~ ':.'1 (·?·'2) a:1c. not to i1im, 'l 1 he appellant denied tb have approached PW5 fo;:- :-.d.":n. :01;;5 said he 1:•a3 Hith Richard Sweya (PW6), but PW6 said he was ab01.·.t sLx paces away and therefo.re out of earshot. Mawazo supported the appellx~t. The appellant p:'.'efc:c::Tc't two ground.-; of appeal. They were: 1 j ..J -

• . .. ., ......... fact in convicting the appellant of rape when the :!_:>:'.'CG•''::Ftio1 h:, 1 . totally fo.iled to prove their case b ,yor,d 1'.' eas,,nble dou.bt" 2, The sent enc·? o 25 yGars imprisonment is j in terms of sect~)n 170(1)(a.) o::.' the Criminal Procedure Act 1985: not 01.1ly manifestly excess but also illegalo 'rhe trial court rig'.'ltly found the evidence of PW1 that the appellant was her ravisher uncor:i:-oborated. CorroborE.:ion is independent evidence connecting an accu.sed .,,.,ersnr1 with th ofi'ence. Neither the evidence of a '

.. 7, _,, promr:,t complainc by a girl o:i:- romA-n n i:- ·1. '·l.ic'"ll testimony that assault has taken place are e:orr'.)boration. The fo::.:-mer is not independent, and the latter does not connect. the accused with the violation. The credibility of PW5, as demonstrated, was clarly questionable. Corroboration is not essential in law, but in practice is alwa:ys lookl:ld for. It is danerous to. convict on evidence of complainant aloe, for expeience has shown that female complainants have ! . ,, told false stories for various reasons, and sometimes for no reason at all. The late Biron, J. said in Abasi s/o Ramadhani v.R. (1969) HCD 226: It cannot.be gainaid that the requirement of corroboration, in sexual offences, is a very Salutary rule, founded on good reason and, I may add, knowledge of human nature. It is. by no means unknown for women to make false accusations of sexual assault even where there has been no assault at', all. Further, even where the woman has consented. to sexual intercou:rse she may afterwards, for a variety of r8asor..s, not, I think, necessar1 to elaborate, deny consent and accl 1 '3e the pa::-tl'.'.er' in th~, act of rapeo However, if a pro:rr we.rninc; is given, F< court may convict on the complainant's uncorroborated evidence if it had no doubt that she is speaking the trutho In this case the trial court convicted the appellant on the uncorrobo- rated testimony of PW1 .. But .that testimony, as demonstrated, was not cogent and reliable, let alone exce:::-tionally so. .Her evidence was at variance in question of credibility of a witness on the basis of demeanour is the monopoly. ' . -, 0 -,. ·; (,. - ; ~ of the trial court. Howe,•er, credibility is not assessed entirely on ' ' . " . demeanour. Reliability of a witness can also be established by considering his testimony in the ccte;ct of the wll .. )le evidence. There c~uld be, as here, conflicts between one witness and another or others. With respect, to the learned state attorney, the credibility of PW1 was, therefore, questionable. The medical report (Ext. P2) was, firstly, hearsay evidence and' inadmissible on account of that its author, the laboratory technician, did not 0 • 0 0 0 0 0 0 0 0 0 /4

4 ' testify, and secondly, assuming it was admissible, it was unreliableo No marks of violence were seen, yet the finding was lidangerous .harmo 11 The· element of lack of consent was not establis9d. There w,ere, as said, no marks of violence. The violation, if any, was completely unresisted. There were no threats of violence. No alarm was raised by PW1 before or during or after the acto The essence of the offence of rape is lack of consent on the part of the girl or womano For such a charge to succeed, therefore, the prosecution has to-prove beyond reasonabe doubt·that the victim did not consent to the sexual intercourse. This burden was not sufficiently discharged here. The sentence passed, as rightly conceded by Mro Mulokozi, was in excess of the sentencing power of the trial court for the offence. For the purpose of sentence the offence fell within the ambit of section 170(1)(a) of the Criminal Procedure Act 1985. The trial court had power to i,mpose a custodial sentence of R term not exceeding five years, and in the event that it was of the opinion that greater punishment should be inflicted for the offence than it had power to inflict, it ought •to have .committed the appellant to the High Court for sentence in terms of section 171 of the Act. I would certainly have interfered with that sentence were the conviction of the appellant tenable. For the foregoing reasons, I allow the appeal, quash the conviction, set aside the sentence, and. hereby order he immediate release of the appellant, EZEKIA .S/0 SIMON, from prison unless otherwise lawfully held. AT IviBEYA. ·--·=-.,,.-- 28 May For Appellant: Present. For Respondent/Republie•: Absent. B.P. MOSHI ~E.