IN THE COURT OF APPEAL OF TANZANIA
AT MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.)
CRIMINAL APPEAL NO. 173 OF 2004
AMOS PETER ………...…………………..….… APPELLANT
VERSUS
THE REPUBLIC ….……..……………….…. RESPONDENT
(Appeal from the Judgment of the High
Court of Tanzania at Tabora)
(Mwita, J.)
dated the 10th day of August, 2004
in
Criminal Appeal No. 74 of 2002
------------JUDGMENT OF THE COURT
1 & 16 March 2007
LUBUVA, J.A.:
In the District Court of Nzega at Nzega, the appellant was
charged with and convicted of the offences of abduction and rape
contrary to sections 134, 130 and 131 of the Penal Code. He was
sentenced to a term of imprisonment of one year and thirty years
2
with twelve strokes respectively.
The sentences were to run
concurrently.
Briefly stated, the prosecution case against the appellant was
as follows.
Angela Peter (PW1), the daughter of Peter Manyama
(PW2) aged about 15 years, was a student at Puge Secondary
School. The appellant was staying in a house near a rented house
where PW1 stayed while she attended school at Puge. The rent was
paid by PW2. On 20.7.2000, the appellant invited PW1 to his house
to collect presents from her (PW1) parents. When PW1 entered the
house of the appellant, he locked her in the bedroom and forced her
to have sexual intercourse with him.
Upon completion of the sexual intercourse, PW2, the father of
PW1, accompanied by a police man (PW3) knocked on the door of
the appellant.
The appellant opened the door and PW2 and the
policeman entered. The appellant was arrested. The following day,
the complainant (PW1) was taken to the hospital for medical
examination which indicated that PW1 was two months pregnant.
3
Initially, the appellant was charged for the offences of rape and
abduction in Nzega Criminal Case No. 111 of 2000. The trial was
conducted to completion by Rutechura, District Magistrate.
On
appeal to the High Court Tabora, the proceedings were quashed and
set aside on account of irregularities in the trial proceedings.
A
retrial was ordered before the same court and magistrate which has
resulted in this appeal.
As ordered, a retrial was conducted vide Nzega District Court
Criminal Case No. 88 of 2002. In the trial proceedings, unlike the
previous one, the complainant, Anjela Peter (PW1) testified. In his
defence, the appellant denied the charge claiming that the case had
been framed against him by PW2, the father of PW1 because PW2
was suspecting him of having an affair with his (PW2) wife. He said
there was bad blood between him and PW2. To support the claim
that there was bad relationship, the appellant tendered a letter of
agreement from the Ward Executive Officer, Puge. The letter shows
that the appellant had been ordered to apologize for uttering insults
to PW2 and pay 15,000/= to him. Furthermore, it was claimed at the
4
trial that PW1 had conceded to have had sexual intercourse with the
appellant without her consent.
The trial magistrate rejected the
appellant’s defence of bad relationship as an afterthought and that
PW1 was found in the room of the appellant at night time.
The
appellant was accordingly convicted and sentenced.
In this appeal the appellant appeared in person.
In his
memorandum of appeal, among other issues, he raised the following:
First, that the courts below erred in basing the conviction on the
evidence of PW1 and PW2 which was a frame up against him.
Second, that because of fear that the magistrate would not be fair
to him he had asked the trial magistrate to disqualify himself from
the trial. Third, that because of the long standing bad relationship
with PW2, fearing that the trial magistrate may not record his
defence correctly, he filed his written defence which is not reflected
in the record.
At the hearing of the appeal, the appellant also addressed the
Court. He emphasized that the case was a frame up against him. He
insisted that the trial magistrate had conspired with the mother of
5
PW1 to fix him. That this is so, he said is evident from the fact that
his defence in writing is not in the record. He was adamant that the
trial magistrate was bent on fixing him by hiding his written defence
and that what appears on record as his defence was the trial
magistrate’s own version.
For the same purpose, the record does not show that he had
applied for the trial magistrate to disqualify himself from conducting
the trial of this case. He wondered how he could remain silent at the
trial in objecting against the trial magistrate conducting the trial if he
had written to the Resident Magistrate Incharge Tabora on the issue
which was replied by letter of 6.6.2002.
With regard to the clinic card Exhibit P.1 the appellant said if
anything at all, it was proof that he was not responsible for the
pregnancy of PW1.
According to him, if in July 2000, when the
alleged rape took place PW1 was two months pregnant, it is
incredible that on 9.12.2000 a fully grown child was born.
This
again, he insisted, is indicative of a framed up case against him. He
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also said there is no medical evidence from the Doctor who examined
PW1 to show that she had been raped.
Mr. Mdemu, learned State Attorney for the respondent Republic
supporting the conviction and sentence firmly contended that the
evidence of the complainant (PW1), PW2 and PW3 was sufficient to
sustain the conviction.
He submitted that PW1 was supported by
PW2 and PW3 who found PW1 in the room of the appellant.
Furthermore, the State Attorney insisted, in his defence at the trial,
the appellant admitted having had sexual intercourse with PW1 with
her consent.
Concluding his submission, Mr. Mdemu said if the
evidence of PW1, PW2 and PW3 is believed as the courts below did,
there was sufficient evidence to support the conviction.
There is no dispute that the appellant was convicted solely on
the basis of the evidence of the complainant (PW1), her father (PW2)
and the police officer (PW3). We shall first deal with the offence of
abduction in the light of the evidence of these witnesses.
The
offence of abduction of a girl under the age of 16 years is provided
under section 134 of the Penal Code which provides:
7
134. Any
person
who
unlawfully
takes
an
unmarried girl under the age of sixteen years
out of the custody or protection of her father
or mother or other person having the lawful
care or charge of her, and against the will of
such father or mother or other person, is
guilty of a misdemeanour.
From these provisions of the law it is apparent that the essential
element of the offence is the act of unlawfully taking an unmarried
girl under the age of 16 years out of the custody or protection of her
parents or any other person having the lawful care or charge of her.
In this case the question is whether PW1 was taken out of the
custody or protection of her parents including PW2. The evidence of
both PW1 and PW2 clearly shows that at the time of the alleged
offence, PW1 while schooling at Puge Secondary School, and was
staying in a rented house at Puge near the house where the
appellant also stayed.
In her evidence PW1 also states in no
uncertain terms that on 20.7.2000 at about 7.00 p.m. for the first
time she was invited to the house of the appellant. That while in the
8
room, the appellant had sexual intercourse with her at the end of
which the appellant was arrested.
Under such circumstances, can it be said that the complainant
who was living at Puge away from her parents was abducted during
the time she is alleged to have been in the house of the appellant.
Admittedly, in the course of her stay at Puge, PW1 would ordinarily
have visited other places without necessarily the sanction of her
parents who stayed at Mirambo Itobo. All the more so, for those in
the neighbourhood of the house where she was staying at Puge such
as the appellant.
In that situation, considering the time factor and the whole
circumstances in which the alleged offence took place, it is doubtful
that the offence of abduction as provided under section 134 of the
Penal Code had been established.
Following the complainant’s (PW1) visit to the house of the
appellant on 20.7.2000 the prosecution case against the appellant
was that the appellant had sexual intercourse with PW1 without her
9
consent.
As said before, the evidence was based on PW1, the
complainant and her father, PW2.
This is the evidence that the
appellant seriously challenges to have been framed against him by
PW2. The appellant has consistently raised this issue not only at the
trial leading to this appeal but also during the previous trial which
was quashed and set aside when a re-trial was ordered.
It is
imperative therefore, to examine this evidence closely. The crux of
the appellant’s assertion is that there was bad blood between him
and PW2.
This is so, according to the appellant, because PW2
suspected the appellant of having an affair with his (PW2) wife.
The allegation of bad relationship between the appellant and
PW2 is supported by the letter of agreement Exhibit D.1 of 16.4.2000
witnessed by the Ward Executive Officer Puge.
The agreement
shows that the misunderstanding had something to do with PW2’s
suspicion that the appellant had love relationship with his (PW2) wife.
The appellant allegedly uttered unmentionable insults to PW2 and
was to apologize and pay PW2 15,000/=. Against this background, it
was important to examine the evidence of PW2 meticulously.
10
The claim of PW1 that she was raped is supported by PW2,
who, the appellant charges should not have been relied on. What is
the other evidence in support of PW2? There is the evidence of Det.
Constable Michael (PW3) who testified that on 20.7.2000 he was
informed by PW2 that PW1 had been seen at the appellant’s house.
He accompanied PW 2 to the house where PW1 was found with the
appellant.
Puge.
Thereafter, the matter was taken to the Police Post at
It is not shown where exactly was PW3 at the time PW2
informed him of the matter. Whether it was at the Police Post Puge
or elsewhere it is not clear.
As it is, as the appellant urges, the
matter is open to suspicion that it was a pre-arranged plan to fix the
appellant in which PW3 could well have been recruited.
It raises
doubts.
There is yet another aspect of the matter. If according to PW1,
the complainant, it was at about 7 p.m. when on 20/7/2000 she got
into the house of the appellant for the first time, it is curious that
shortly PW2 who was living at Mirambo Itobo, 28 kilometers away
from Puge, surfaced at the house in the company of PW3, the Police
11
Constable. Another curious aspect of the matter is that a civilian,
one Revocatus who accompanied PW2 and PW3 to the house of the
appellant was not called to testify in court. There is no reason given
why he did not testify. In the absence of explanation how and where
PW2 reported the matter to PW3, the appellant’s claim that PW1,
PW2 and PW3 conspired to fix him up may well be founded. It raises
doubt against the prosecution case.
Medical evidence was necessary to support PW1’s claim that
she had been raped. It was not enough for PW2 and PW3 to state
that they found PW1 in the house of the appellant.
There is no
medical evidence to show that rape had taken place although the
learned judge says the medical examination indicated that PW1 was
two months pregnant at the time of the alleged rape. Even if it is
taken that the judge was referring to the PF3 in which it would be
shown what the doctor had found after examining her, the PF3 was
not tendered at the re-trial, subject of this appeal. The evidence of
PW1 and PW3 clearly shows that the PF3 was tendered in the
previous trial.
On the other hand, if the reference to medical
12
examination related to the clinical card Exhibit P.1, this had nothing
to do with the charge of rape. With respect, we think the learned
judge misdirected himself on the medical evidence. In this light, in
the absence of medical evidence, the charge of rape is based on the
bare word of the complainant (PW1) alone.
On the other hand, we shall consider whether the appellant’s
claim that there was grudge between the appellant and PW2 was
considered. At the trial the appellant raised and tendered the letter
of agreement Exhibit D.1 in which the matter was settled before the
Ward Executive Officer, Puge. The trial magistrate rejected it as an
after thought.
In the first appeal in the High Court it appears that
the learned judge casually touched on the matter.
The learned
judge merely observed that the appellant had alleged in his defence
that the evidence was concocted by PW2 who suspected the
appellant of having an affair with his (PW2) wife. He also referred to
the Exhibit D.1.
issue any more.
However, the learned judge did not address the
13
We think, with respect, it was a serious misdirection on the part
of the learned judge in not addressing the issue of the alleged
grudge between PW2 and the appellant.
The allegation was
supported by evidence from the Ward Executive Officer, Puge in
Exhibit D.1. Then the appellant had consistently raised it at the trial
and on appeal before the learned judge. Furthermore, there is the
serious issue that the appellant had expressed his apprehension that
he had no confidence in the trial magistrate who he wanted to
disqualify himself from hearing the case.
On this, the appellant
wrote a letter to the Resident Magistrate Incharge, Tabora. By letter
of 6.6.2002 from the court of Resident Magistrate Tabora, Annexure
“A” to the petition of appeal to the High Court, the appellant was
advised to raise the issue in court.
Above all the allegation that the appellant had filed his written
defence is also a matter of great concern. If indeed that was so it is
most curious that it is not shown on the record. Its absence from the
record if at all, raises doubt. It is common knowledge that the Court
normally goes by the record, but given the circumstances of this
14
case, we think with respect, that had the learned judge on first
appeal addressed and considered these matters, some of which could
well be true, very likely he would have come to the conclusion that
there was still unresolved doubt in the case.
It is a cardinal principle of criminal justice that doubts are to be
resolved in favour of the accused.
For the foregoing reasons, we are satisfied that in the totality
of the circumstances of the case, the case against the appellant had
not been proved beyond any reasonable doubt.
Consequently, the appeal is allowed, conviction quashed and
sentence set aside. The appellant is to be released forthwith from
custody unless otherwise lawfully held.
15
DATED at MWANZA this 16th day of March, 2007.
D. Z. LUBUVA
JUSTICE OF APPEAL
J. A. MROSO
JUSTICE OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
(S. M. RUMANYIKA)
DEPUTY REGISTRAR