Ezekia Simon vs Republic (Criminal Appeal No. 76 of 1998) [1999] TZHC 54 (28 May 1999)

IN THE HIGH COURT OF TANZANIA AT MBEYA CRIMI1'AL APPEAL 'NO. 76 OF 1998 (From Mbey.a.District Court at Mbeya in Criminal Case No, 361 of 1997 Before: l.A. Mtiginjola - District Magistrate) EZ(IA SIMON APPELLANT VEStJS THEREPUBLIC6....,,..,600000. RESPONDENT JUD1ENT N.OSHI J. The district court of Mbeya sentenced' the appellant to twenty-five years imprisonment consequent upon a conviction for Rape, contrary to sections 130 and 131 of the Penal Code0 The conviction and sentence aggrieved him, hence this appeal which was preferred and argued before me by the appellant himself0- The appeal was resisted by the learned State Attorney for the Republic, Mr. Mulokozi. The material facts established in evidence were these. The complainant, Tun'iaini 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 23.14,97 at 3.00 pm PWI was washing clothes at a river. She was with .Mawazo s/o Maganga who testified as PW4 O The appellant and Ally Andongwisy,e (DW2) arrived at the 'river, together and found them there. The four p ersons 3 ere well known to one another. The appellant, according to PWI, then bhàsd Mawazo away under threats that he would be beaten. Mawazo, however; denied that he was chased away by the appellant. As PWI was apreading a bedsheet on the grass to dry the appellant, according to PWI, held her by the mouth, fell her to the grrund, tore off her underwear (E5ct. P), and had sexual intercourse with her. She said the appellant did not threaten or beat her. The version of the appellant, assupported by Ally (DW2) and Mawazo (pW14), was that after. the'fdur persons had exchanged greetisgs and some jokes, the appellant ,.©,,,,.., /2 A

-2 accidentally stepped on a hedsheet spread on the grass to. dry PW1 became furious and demanded that the appellant rewash the bedsheet the appellant did so0 The appellant d Th42 then walked away leaving P141with Mawazo (PW4). He denied the charge Shortly after the appellant and 9W2 left the place PW1 reported. 'to PW2 that she was raped by the appellant'0 Théy..both reported the incident at Chimala police post s and D/C Kob (P3) issued a PF 3 (Ext0 P2) and referred PW1 to Chimala Mission hopial for medical xamination0 A Clinical Officer at the hospital, 'Iâdo•n;, Mwingira (also PW 1+), examined PW1 and passed on specimen to laboratory technician who did not testify0 He saw no marks of violence0 He saw sc:-mtozoea, trichomonas' vaginalis, and pus cells0 The appellant was arrested by PW3 on 29 2+97 and charged in court on 2 597. Sometime in May 1997.Tenensi Athuman (Pw5) married PW1Q On 178.97, which was three months later, the appellant allegedly went to the house of PW5 with Mawazo (Pw'+) and asked to be orgiven The trial was still in progress and PW5 told the appellant that the reqiest should be taken to the then guardian of P 1 :11 (P.T2) and not to him The appellant denied to have approached 'PW5 for pardon0 PW5 said he was with Richard Sweya (P6), but PW6 said he was about six paces away and therefore out of earshot0 Mawao supported the appellant0 The appellant preferre4 two grounds of appeal0 They were: fact in convicting the appellant of rape when the prosecution had totally failed to prove their case beyond reasonable doubt,0 2 The sentence of 25 years imprisonment is, in terms of section 170(1)(a) of the Criminal Procedure Act 1985, not only manifestly excess but also illegal0 The trial court rightly found'the evidence of P 1 91 that the appellant was her ravisher uncorroborated0 Corroboration is independent evidence connecting an accused person with the offence0 Neither the evidence.of a ' 00000000000 /3

-.3- prompt óomplaint by a girl or woman nor medical. tetimony: that assault has taken plae are corrobora±ion.' The; former is not independent, and the latter does not connect the accused with.the'violtion The4 credibility of PW5, as demonstrated, was clearly questionable0 Corroboration is not essential in law, but in practice is always looked for0 It is daigerous to convidt on evidence of complainant alone, for experience has shown that, female complainants have told false stories for variousreasons, and sometimes for no reason át'all. The late Biron, J,saidin Abasi s/o Ramadhani v.R, (1969) HCD 226: It cannot be gainsaid that the requirement of corroboration, in sexual offences, is a very Salutary rule, founded on good reson and, I may add, knowledge of human natu±e.' 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 intercourse' he may' afterards,'fora varietyof'.reas,ons, not, ' I think, necessary to elaborate, deny consent and accuse the partner in the act of rape. 'However, if a proper warning is given, a court may convict on the complainant's uncorroborated evidence if it had no doubt that she is speaking the truth. In this case the trial court convicted the appellanton the uncorrobo- rated testimony of PW1 Bit that testimony, as demonstrated, was not •cogent and reliable,let alone' exceptionally so. Her evidence was at,.'variance in r;ater'a1 paxt'iculars with that of Mawazo Maganga who was with here. The question of credibility ofa witness on the basis of demeanoiiris the monàpbly of the trial court. However, credibility is not assessed entirely on demeanour, Peliability of a witness can also be established by considering his t'estithony in the context of the whole evidence. There could be, as here, conflicts between one witness and another or others. \ith respect to the learned state attorney, the crediblity ;of P1 was, therefore, questionable. The medical report (Ext. P2) was, firstly, hearsay evidence and inadmissible on account of that its author, the laboratory teàlrnician, did'not /'+

testify, andsecondJi., assuming it was admissible, t was unreliable0 No marks of violence were seen, yet the finding was "dangerous harm,? The element of lack of consnt wasnot established. There were, as said, no marks Of violence. The violation., ifany 1 was completely unresisted. There were no threats of violence. No alarm was raised by PW1 before or during or fterthe act. The essence of the offence of rape is lack of consent on the part of the.g.irl or.iiornan. For such a charge to succeed, therefore, the prosecution has to prove beyond reasonable doub.t that the victim did not consent to the sexual intercourse. This burden was not sufficiently discharged here. The sentence passed, as rightly conceded by Mr. Mulokozi, was in excess of the sentencing power of thetrial court for the off ence, For the purpose of sentence the offence fll within the ambit of section 170(1)(a) of the Criminal Procedure Act 1985. The trial court had power to impose a custodial sentence of a 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 convict.ion of the appellant tenable. For the foregoing reasons, I allow the appeal, quash the conviction, set aside the sentence, and hereby order the immediate release of the appellant, prison unless otherwise lawfully held. . k. . / AT MEYA,G 28 May1999. '

• For Appellant Present. v For. Rspondent/Repub1ie: Absent. B.P. ~ ! tL ~ MOSHI JUDGE. •'