THE DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT VERSUS MT SGT FABIAN KIMARO.. RESPONDENT

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1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 57 OF 2004 (Original Criminal Case No. 739 of 2002, Originating from the Resident Magistrate s Court of Dar es Salaam at Kisutu) THE DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT VERSUS MT SGT FABIAN KIMARO.. RESPONDENT JUDGMENT KALEGEYA, J.: Dissatisfied with the acquittal of the Respondent (accused in the lower court) the Director of Public Prosecutions preferred the present appeal complaining that the trial Magistrate misdirected himself in evaluating evidence tendered in Court and consequently erred in fact and law in holding that the offence was not proved beyond doubt and consequently acquitting accused. Ms Msabila, Learned State Attorney, who was being assisted by Mr. Mkizungu, Learned State Attorney, vehemently elaborated the two grounds of appeal urging that the PF3 established that the victim was raped; that the evidence of a child under the law sufficed and that she was seen holding money of which she said had been given to her by the Respondent after raping her. On his part, the Respondent insisted on his innocency and reiterated what he had told the court during the trial that this was a cooked up case due to family conflicts which had flared up and subsequently seemingly settled around Having carefully gone through the evidence tendered before the lower court and the submissions made before me in relation to the law, I am not persuaded that the finding of the lower court is flawed. The trial court properly directed itself on the contradictory nature of the evidence

2 tendered and rightly concluded that the offence of rape with which the Respondent was charged and finally acquitted of was not established beyond all reasonable doubt. The Respondent was charged with rape c/s 130(1) and (2)(e) and S.131(1) of the Penal Code as amended by the Sexual offences (special provisions) Act No. 4 of Armed with four witnesses and a PF3 (Exh.P1) the prosecution sought to erect its case against Respondent who also called four witnesses (including himself) in defence. The victim (PW3) was said to be 13 years old and who lived with PW1 and 4 (wife and husband respectively) and who were neighbours to Respondent. PW1 is PW3 s sister. The allegations were that the Respondent called the child (PW3) into his house, raped her and gave her shs. 100/=. As she was leaving the house, the story goes, PW1 called and asked her who had given her shs. 100/= she was holding upon which the Respondent was mentioned. PW2, a neighbour, and a Nurse Assistant took PW4 to Lugalo hospital where she worked but PW3 could not medically be attended as there was no police Report; that PW3 was then taken by PW4 to Mwananyamala Hospital thence to Muhimbili Hospital where she was admitted and discharged the following day. The Respondent very strongly disputed the allegations, maintaining that there existed a long family dispute between these two neighbours and that this was a cooked up case. DW2, a retired military warrant officer, testified to the existence of the dispute of which together with fellow army men he had tried to settle. DW3, Respondent s house girl also confirmed the existence of the dispute by stating: there was a conflict between PW3 s sisters and the accused wife. Because of this conflict we were not used to visit each other. The same story was repeated by DW4. In reaching its verdict, the trial court considered the evidence of PW1 and 2 in relation to Exh. P1 and was categorical of the contradiction between the two as regards the alleged existence of spermatozoa in PW1 s 2

3 genetals. Also considered was PW3 s evidence regarding where she was when called upon by PW1-at one point saying that she was going to the shop and yet at another that she was playing. The Court also being satisfied of the existence of family conflict, in light of the contradictions, inferred a possibility of a planted case. Indeed, PW1 and PW2 testified to have seen sperms. PW1 stated:..i checked the complainant. I saw that the Complainants being interfered and there were some sperms, while PW2, is on record saying: I called the complainant inside the room and I inspected.her parts.i found there was some spermatozoa.i took her to Lugalo Hospital..I asked one Dr. to check the complainant and he checked and said there are some sperm in her That was during examination in chief. Under cross-examination she said: After inspecting the child there was friction and some sperms. The victim herself had the following to say: There was no blood in my carnal (sic) and no friction. What does the PF3 (Exh. P1) tell us on the other hand? One Dr. Bwahama reported as follows: Neema Kimambo 13 years old admitted in Gynaecological wd on 6/9/02 and discharged home on 7/9/02 who being sexually abused by a neighbour boy. Girl was fair, young girl look scared.no bruises. Other systems well. PVE: Normal v/v, had bruises on lower 1/3 rd of both labia major. No obvious bleeding, hymen torn at 6 and 9 O clock. Digital examination admit 2 fingers which were stained c whitish discharges. Investigations done: 1st ELISA test 6/9/02 = D Negative VDRL test 6/9/02 = D Negative 2nd ELISA test 11/10/02 = D Negative VDRL test 11/10/02 = D Negative Seminal analysis done 6/9/02 = D show epithehal squamans cells only. No spermatozoa. 3

4 Dr. Bwahama 5/3/03. The contradictions which influenced the trial court need no orchestration. If PW1 and 2 saw spermatozoa with their naked eyes in the same evening of 6 th September, 2002, how did a Dr s examination of the seminal analysis fail to detect the same? The Dr s report shows that the haymen was torn but the words at 6 and 9 O clock could only have been explained by the Dr. himself in order to make sense. Was it torn on the alleged date of incident or before? The Victim herself (PW3) had testified: accused..called me in his house and took me in his room and undressed me and penetrated into me his thing and I felt pain. I could not cry because he curbed my throat. The accused never called me before and never did that thing to me before and there is no one who did that act to me.. There was no blood.and no friction. Does the victim s testimony rhyme with the Dr s Report? Was the victim going through this sexual experience for the 1 st time or was she seasoned/experienced? While the latter element legally is irrelevant if indeed it is established that the Respondent did what is alleged, I am posing it because of the uncertainty surrounding the whole alleged incident. Other intriguing elements are as follows: was PW3 admitted at Muhimbili Hospital because of pains or to await medical examination? Neither PW4 who led her to the hospital nor the Dr. who compiled the report shed any light on this! And, not of less significance is the obvious from the PF3 (Exh. P1) that though indicated to have been issued by the police on 6/9/2002, with key medical examinations carried on PW3 on same date, what is reflected thereon (filled in) was compiled almost six months later (6/9/2002 5/3/2003)! Now, all these doubtful elements impact greatly on the key witnesses. Should PW3 be believed in her testimony wherein she talks of no friction and yet the Dr. and PW2 talk of bruises and friction? Should PW1 and 2 be believed in their testimony on the existence of sperms when the examining Dr says the contrary. Should we believe this PW3 that she did not cry 4

5 because Respondent curbed (sic) her throat? If indeed she had been raped to the extent of feeling pain as she describes, and considering her age, obviously she would have come out of the house shaken and most probably crying. The evidence however shows that the sounding indicator that everything was not well was just her holding of shs. 100/= whose source was unknown! As rightly analysed by the trial court this evidence is wanting. And considering the undisputed family conflict in existence anything could have happened. And, in criminal cases, the standard of proof which should be beyond reasonable doubt has no place for suppositions. Once such doubts are entertained the accused should be bestowed with the benefit thereof. The trial court rightly arrived at its finding. Before I conclude, I should make one further observation. The PF3 (Exh. P1) seemingly relied upon by the Appellant, has also another bottleneck. Its tendering violated S. 240(3) of the Criminal Procedure Act which provides as under: S.240 (1) (2) (3) When a report referred to in this section is received in evidence the court may if it thinks fit, and shall, if so requested by the accused or his advocate, summon and examine or make available for cross-examination the person who made the report; and the court shall inform the accused of his right to require the person who made the report to be summoned in accordance with the provisions of this subsection. (emphasis nine) The proceedings show what happened prior to the tendering and its being numbered Exh. P1. PW4 is on record as follows: Dr. informed me that there was possibility that Neema was raped. On the 7th September, 2002 Neema was discharged. I have PF3 for the treatment. I pray to tender as Exh. Court: PF3 dated 6/9/2003 for Neema Kimambo is hereby admitted and marked Exh. P1. Obvious flaws here are twofold: the accused s view on whether or not he was objecting to its being tendered were not sought, and, two, his statutory right under 240 (3) CPA as quoted was never accorded to him. These elements must specifically be reflected on record. 5

6 The above said, the obvious still lingers on. The appeal has no merit. It is accordingly dismissed. L. B. KALEGEYA JUDGE WORDS: 1,642 6