Emmanuel Kuyi v Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPEAL NO. 20231220000040531 (Appeal from the decision of the District court of Itilima, Criminal Case No. 18 of 2023) EMMANUEL s/o KUYI………………...............................................APPLICANT VERSUS THE REPUBLIC……………….………………….………….….….…...RESPONDENT JUDGEMENT Date of Last Order: 18/09/2024 Date of Judgement: 11/10/2024 MWAKAHESYA, J.: In the District Court of Itilima District at Itilima, the appellant was charged with the offence of Rape c/ss 130(1)(2)(e) and 131(3) of the Penal Code. It was alleged that on the 5th of May, 2023 at Mwamapalala village within Itilima District – Simuyu Region, the appellant had sexual intercourse with “MM” (name withheld to protect her identity) a girl of eight years old. It was the prosecution’s case through the evidence of MM (the victim/PW2) that on the material date, the appellant called PW2 inside the house, lay her down and raped her. The victim’s mother (PW1 and also the appellant’s wife) arrived home and PW2 told her about what had happened. 1 However, PW1 gave evidence that, on the material date, she returned home at around 16:00 and met PW2 departing from their bedroom and PW2 was crying. When she queried as to why she was crying she did not respond. In the evening at around 2100hrs the appellant raped PW2. Upon PW1 interviewing PW2 and observing her private parts, she found sperms in her vagina. She reported the matter to the hamlet chairperson who in turn apprehended the appellant and took him to the police station. G.5571 D/Cpl Tibengilana Kandoza (PW4) a policeman interviewed PW1, PW2 and took the cautioned statement of the appellant. He also tendered in evidence the same which was admitted and marked as exhibit PI. Mwera Matatiro (PW5), a registered nurse at Kashishi Dispensary examined PW2 on the morning of 06.05.2024 she gave evidence that she found semen and blood stains on PW2’s vagina and concluded that the appellant had tried to insert his penis into her vagina but failed. PW5 filled a PF3 and tendered the same in court as exhibit PII. Meanwhile, in his defence, the appellant denied raping PW2. At the end of the trial, the trial Magistrate was of the view that the charge of rape was not proved to the required standard and convicted 2 the appellant with the offence of attempted rape and sentenced him to 30 years imprisonment. Aggrieved, the appellant has preferred the present appeal couched on four grounds which are to the effect that: 1. The learned trial court erred in law and in fact to pass sentence on weak evidence without conducting a voire dire examination; 2. The learned trial magistrates’ court erred in law and in fact to hold conviction without calling independent witnesses to testify; 3. The prosecution failed to prove the case beyond reasonable doubt and thus left a shadow of doubt; and 4. The learned trial magistrate erred in law and in fact to pass a sentence on a case I have not committed. At the hearing of the appeal, the appellant, through the aid of a court appointed interpreter Ms. Nkwimba Jotta (who was sworn, to truthfully translate from Kisukuma to Kiswahili and vice versa, before assuming her duties) appeared in person, unrepresented. The respondent Republic was represented by Ms. Nyamnyaga Magoti, learned State Attorney. The appellant, having opted to submit first, adopted his grounds of appeal and prayed for the court to set him free so that he can join his family. 3 In reply Ms. Magoti informed the court that she was resisting the appeal and went on to respond to the appeal. On the first ground of appeal, she submitted that, indeed voire dire examination was not conducted. The reason being that, there was no need to do the same in light of section 127(2) of the Evidence Act, whereby a child below 14 years can give evidence not on oath as long as she promises to tell the truth. In the appellant’s case that was done as it can be observed in the trial court’s proceedings. She submitted further that, voire dire is conducted to see if a witness understands the nature of an oath and that it is no longer a requirement in our courts. The learned State Attorney referred the Court of Appeal case of George Jonas Lesilwa v. The Republic, Criminal Appeal No. 374 of 2020 (unreported), where the Court stated that when a child of tender years promises to tell the truth and not tell lies then there is no need to conduct a voire dire test. Thus, the learned State Attorney was of the view that, the first ground of appeal lacked merit. On the second ground of appeal, the learned State Attorney submitted that, there were independent witnesses, there was: Paulo Mshiro @ Zengo (PW3) who is a hamlet chairperson; and there was also a nurse (PW5). 4 She submitted further that, the law provides that, under section 143 of the Evidence Act, there is no particular number of witnesses that are required to prove a particular fact. She was adamant that, in sexual offences the best evidence is that of the victim, and in the appeal at hand the victim testified towards the commission of the crime as PW2. Ms. Magoti cited the case of Selemani Makumba v. The Republic [2006] T.L.R. 379 to support her submission. The learned State Attorney concluded this ground by submitting that, under section 127(6) of the Evidence Act, the court can convict based solely on the evidence of the victim. She urged the court to dismiss the second ground of appeal. The learned State Attorney conceded the third ground of appeal. However, she went on to submit that, the prosecution did not prove the offence of attempted rape but proved the offence of rape. Ms. Magoti went further to submit that, the appellant was charged with statutory rape and the prosecution was able to prove the age of the victim, that she was eight years old. This was through PW1, the mother of the victim. She elaborated that, PW1, being a parent of the victim, is one of the persons who can prove age in accordance with the Court of 5 Appeal decision of Isaya Renatus v. The Republic, Criminal Appeal No. 542 of 2015 (unreported). Ms. Magoti was also of the view that, penetration was also proved through PW2 who testified that the appellant raped her and gave a detailed account on what happened on the fateful day. This evidence, according to her, was corroborated by PW1 who gave evidence that the victim (PW2) had sperms. The learned State Attorney also relied on exhibit PI, the cautioned statement of the appellant. She reminded the court that the same was tendered, unopposed, and further to that, the appellant did not cross examine the witness who tendered it. She cited the Court of Appeal decision of Shomari Mohamed Mkwama v. The Republic, Criminal Appeal No. 606 of 2021 (unreported) where it was held that failure to cross examine on a particular matter meant that one agreed to the same. The learned State Attorney was adamant that, because the appellant had confessed, it meant that his confession corroborated the evidence of PW2. She relied on the Court of Appeal decision of Mohamed Haruna @ Mtupeni and Another v. The Republic, Criminal Appeal No. 259 of 2007 (unreported) where the Court held that 6 the best witness is an accused who confesses. She rounded up her submission by stating that, having proved that the appellant is the one who committed the offence, all the ingredients necessary to prove the offence of rape were satisfied. In her opinion the third ground of appeal lacked merit, this was despite having conceded to the same earlier on. Ms. Magoti also conceded to the fourth and final ground of appeal but urged the court to make use of section 366 of the Criminal Procedure Act and re-evaluate the evidence of the trial court and convict the appellant with the offence of rape as attempted rape was not proved. She submitted that, the fourth ground of appeal had merit. She, however, prayed that the appeal be partly allowed, but the appellant not to be set free. In a rudimentary rejoinder, the appellant reiterated his desire for his appeal to be allowed and to be set free. Having gone through the rival submissions, the record and the petition of appeal, it is now the court’s duty to determine the merits or otherwise of this appeal. As for the first ground of appeal, indeed as submitted by the learned State Attorney for the respondent Republic, the position of the law, by virtue of section 127(2) of the Evidence Act is that, all that is 7 necessary to be done in order for a child of tender years to give evidence is to promise to tell the truth to the court and not to tell any lies. This was done by the victim and it is evident at page 5 of the typewritten proceedings of the trial court. The same goes as follows: “PW2 MM, CHILD, MWAPALALA VILLAGE, PAGAN, NURSERY School. She promise (sic) to speak nothing but the truth that, on…” Thus, the first ground of appeal is devoid of merit and is dismissed. Turning to the second ground of appeal, section 143 of the Evidence Act is crystal clear, it reads: “143. Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact.” In Allan Duller v. The Republic, Criminal Appeal No. 367 of 2019 (unreported), the Court of Appeal held that: “The Court has stated so in innumerable decisions. For instance in Yohanes Msigwa v R (1990) TLR 148, the Court categorically stated that in terms of section 143 of the Evidence Act, Cap 6 R.E. 2002, there is no specific number of witnesses required for the prosecution to prove any fact and that what is important is the quality of the evidence and not the numerical value.” 8 Further to that, as submitted by the learned State Attorney, section 127 of the same Act also suffices. It reads: “127. -(1) N/a. (2) N/a. (3) N/a. (4) N/a. (5) N/a. (6) Notwithstanding the preceding provisions of this section, where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender age or of a victim of the sexual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years or as the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child of tender age or the victim of the sexual offence is telling nothing but the truth. (7) N/a. So, hypothetically, even if there was the evidence of PW2 alone, the same could suffice for the trial court to rely on and convict the appellant if it found the same credible. The second ground of appeal lacks merit as well and is hereby dismissed. 9 It is on the third ground of appeal where the learned State Attorney blew both hot and cold and ended up trying to convince this court that the offence of rape was proved to the required standard. To start with, I agree with the learned State Attorney that in order to prove the offence of rape the key ingredients are: penetration; age (where statutory rape, as in this instance, is concerned); and the identity of the perpetrator. The age of the victim was proved by PW1, who, being the parent of PW2 and accordingly as submitted by Ms. Magoti, on the strength of Isaya Renatus (supra), can prove age of the victim. Thus, I am also satisfied that the age of the victim was satisfactorily proved. In order to prove penetration, the learned State Attorney relied on the evidence of PW1 that, on her observation of PW2 she saw sperms on her vagina. With all due respect to the learned State Attorney, the presence of sperms, if at all, is not conclusive proof that there was penetration. The learned State Attorney also relied on exhibit PI an alleged confession of the appellant. I find it necessary to scrutinize it accordingly. 10 Since the first time the charge was read to the appellant he had the aid of an interpreter, this pattern continued until the hearing of this appeal, the appellant asserting that he is not conversant in Kiswahili. However, exhibit PI was made in Kiswahili language without the aid of an interpreter, the said exhibit also shows that the appellant could not read and write, that is why he appended his thumbprint. Perhaps more alarmingly is the end of exhibit PI which reads: “…Mimi ninafahamu kuwa ana umri wa miaka nane. Swali: Unayo maelezo mengine? Jibu: Sina maelezo mengine.” (thumbprint) The appellant is stating that he knows the victim to be aged eight years old and upon being asked if he has anything further to state, he replies in the negative and appends his thumbprint. Meanwhile, the police who conducted the interview and wrote the statement (exhibit PI) finished off the interview in the following manner: “UTHIBITISHO: Mimi G 5571 D/Cpl TIBENDELANA nimeandika maelezo ya EMMANUEL s/o KUYI kwa usahihi na uaminifu na nimesomea ameyakubali chini ya k/f cha 57 na 58 Sura ya 20 marejeo ya mwaka 2022…” This is to the effect that, the police officer (the interviewer/PW4) has written the statement truthfully and accurately in light of section 57 11 and 58 of Cap. 20 (i.e., the Criminal Procedure Act). And that marked the end of the statement. Section 57(4) of the Criminal Procedure Act (the CPA) provides that: “(4) Where a person who is interviewed by a police officer is unable to read the record of the interview or refuses to read, or appears to the police officer not to read the record when it is shown to him in accordance with subsection (3), the police officer shall- (a) read the record to him, or cause the record to be read to him; (b) ask him whether he would like to correct or add anything to the record; (c) permit him to correct, alter or add to the record, or make any corrections, alterations or additions to the record that he requests the police officer to make; (d) ask him to sign the certificate at the end of the record; and (e) certify under his hand, at the end of the record, what he has done in pursuance of this subsection.” [Emphasis added]. With respect to the learned State Attorney, I think exhibit PI offends section 57(4)(a)-(d). It is only PW4 who certified that he had read the statement to the appellant and there were no alterations/additions needed. The appellant did not certify that the same had been read to him and found to be accurate. That anomaly coupled 12 with the fact that the appellant has shown to be unable to converse in Kiswahili, raises serious doubts to the credibility of exhibit PI. Thus, I find it unsafe to rely on. Regarding the PF3 (exhibit PII) the same has its shortcomings as well. One; the alleged registered nurse who filled it is not a qualified medical practitioner to fill the same, see Court of Appeal decisions in: Jamal Ally Salum v R., Criminal Appeal No. 52 of 2017 and Hamis Kayanda v. The Director of Public Prosecutions, Criminal Appeal No. 166 of 2018 (both unreported). Two, exhibit PII does not bear the registration number of the maker while it clearly has a field which caters for the same. The omission to fill in the registration numbers degrades its credibility. Thus, exhibit PII was tendered by an unqualified person, and it had a material defect. It is unsafe to rely on it. There is also variance between the evidence of PW1 and PW2 as to what transpired. PW1 testified that: “…I returned back on the same date around at about 16:00 hrs. When I returned I met the accused on our room, while I was at the out door the victim departed in our room, while she was crying I asked her what was the matter, she did not replied anything. The accused departed at home to Mwamapalala center, at around 2100 while the accused 13 came from work and he did found the house key, broken the lock and entered inside cooked thereafter all children get out, there after called her asked her where his torch, the accused forced the victim to sleep, she started to rape her. I interviewed the victim by looking private parts and saw sperms in her vagina. I cooled the victim waiting the accused and when came back I asked him what he did to my daughter. The accused started to abuse me. I informed one Bala, the neighbor of the hamlet chairperson at the same night…” [Emphasis added] Meanwhile, PW2’s version of events was that: “…on Material date my mother left the place we remained with father who called me inside the house while I entered the accused forced me to sleep on the sulphate, he started to rape me while he was continued to rape me he heard voice outside he told me to leave and he accused pretended that he was repairing a radio. When I got out I met my mother, I did not explained anything until my father left, it was when I told my mother what was happened…” [Emphasis added] PW1’s version was that on the material date she went back home at 1600hrs and that is when she met PW2 crying, only later, at 2100hrs, for the appellant to rape PW2. PW1 never stated that she had left the house again after coming back at 1600hrs. The lingering question is, so where was she when the rape took place? 14 Meanwhile, PW2 asserted that she met her mother after being ravished by the appellant. She did not state the time of the day nor that she was ravished twice that day or her mother leaving her with the appellant twice on that material day. After comparing the two testimonies I am not entirely convinced that they tally. The learned State Attorney relied on the Court of Appeal decision of Selemani Makumba (supra) and submitted that the best evidence is that of the victim (PW2). With all due respect, it is also the position of the law that the word of the victim of sexual offence should not be taken as gospel truth but that her or his testimony should pass the test of truthfulness (see Mohamed Said v. The Republic, Criminal Appeal No. 145 of 2017, Court of Appeal at Iringa (unreported). Having raised doubts to the evidence of PW1 and PW2 and in the absence of the trial magistrate assessing the credibility of PW2 it cannot be said that her evidence was the best evidence. I, therefore, find that the second and third ingredients of the offence of rape (penetration and that it was the appellant who committed it) were not satisfied. As alluded earlier, the trial court was not convinced that the offence of rape was proved, but rather attempted rape. I believe the 15 learned trial magistrate was swayed by the opinion of PW5, the alleged registered nurse. An extract of her evidence given in court reads: “…On 06/05/2023 around at morning hours I was at my working place and while I was there one woman came with a child (lady) of eight years old MM accompanied with policeman, he had PF.3. Informed me that the child she was raped, I entered into medical examination in which I conducted swapping to the victim by using gueze (sic) and I found on her vagina semens (sic) with blood stayed (sic) (semen) we also conducted medical examination in sexual transmitted diseases, it was NIL. There after I filled PF.3. in all observation, we concluded that she was attempted rape case. The accused tried to insert his penis to her vagina but he failed…” [Emphasis added]. Although PW5’s oral account can be considered, the same is not safe as it seems incredible and was conclusively arrived at without the relevant legal foundation. PW5 was not an eyewitness and therefore she was not in a position to conclude that the appellant (erstwhile accused) tried to insert his penis to PW2’s vagina and failed. The words used in the proceedings were: “we concluded that this was an attempted rape case…” This shows that she was mostly likely, in coming to that conclusion, influenced by PW1 and the policeman that escorted PW1. This sequence of events clearly impeaches her credibility. 16 I am also of the view that the ingredients of the offence of attempted rape were not fully appreciated by the learned trial magistrate. Section 132 of the Penal Code reads: “132. -(1) Any person who attempts to commit rape commits the offence of attempted rape, and except for the cases specified in subsection (3) is liable upon conviction to imprisonment for life, and in any case shall be liable to imprisonment for not less than thirty years with or without corporal punishment. (2) A person attempts to commit rape if, with the intent to procure prohibited sexual intercourse with any girl or woman, manifests his intention by- (a) threatening the girl or woman for sexual purposes; (b) being a person of authority or influence in relation to the girl or woman, applying any act of intimidation over her for sexual purposes; (c) making any false representations for her for the purposes of obtaining her consent; (d) representing himself as the husband of the girl or woman, and the girl or woman is put in a position where, but for the occurrence of anything independent of that person’s will, she would be involuntarily carnally known. (3) Where a person commits the offence of attempted rape by virtue of manifesting his intention in the manner specified in subsection (2)(c) or (d), he shall be liable to imprisonment for life and in any case for imprisonment of not less than ten years. (4) N/a. 17 Again, reproducing the relevant part of PW2’s testimony narrating the event. It reads: “…on Material date my mother left the place we remained with father who called me inside the house while I entered the accused forced me to sleep on the sulphate, he started to rape me while he was continued to rape me he heard voice outside he told me to leave and he accused pretended that he was repairing a radio…” [Emphasis added]. Whilst I appreciate that, on the strength of the Court of Appeal decision of Joseph Paulo v. The Director of Public Prosecutions, Criminal Appeal No. 191 of 2008 (unreported), the term threat as provided under section 132(2)(a) of the Penal Code was not limited to the oral communication of an intention to inflict physical harm but rather to include conduct of the accused as against the victim, I am not convinced that the words used by PW2 in her testimony points out to any type of threat from the appellant. She merely stated that she was forced to sleep on the sulphate, the type of force was not mentioned. Thus, I find that, the ingredients of attempted rape as per section 132 of the Penal Code were not proved at all. In light of this I am unable to agree with the learned State Attorney that the offence of rape was proved against the appellant and I 18 am also in disagreement with the trial magistrate that the offence of attempted rape was proved. Thus, the third and fourth grounds of appeal are merited. In the end the appeal is allowed, the conviction by the trial court is quashed and the sentence is set aside. The appellant is to be set free unless he is being otherwise lawfully held. DATED at SHINYANGA this 11th day of October, 2024 N.L. MWAKAHESYA JUDGE 19