20071024 TZCA Dar es Salaam

re1-11ho~~ % -* IN THE COURT OF APPEAL OF TANZANIA - r?Y I AT DAR ES SALAAM (CORAM: LUBtJVA 3,A., MSOFFE, J.A. And KIMARO, 3.A.) r CRIMINAL APPEAL NO. 43 OF 2005 KARIMU ABDALLAH © LIKOWE ................... ........ APPELLANT VERSUS .), THE REPUBLIC . RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mtwara). (Lukelelwa, 3.) 1 dated the 21' March, 2005 in '€ ifigh Court Criminal Appeal No.85 of 2004 cff JUDGEMENTOFTHECOURT I t J) 8&30Oct,2007 KIMARO, J.A. In Criminal Case. No. 56 of 2004 in the District Court of Lindi within Lindi Region, Karirn Abdallah©Likowe, the appellant, was convicted of rape contrary to section .130 (2) (e) of the Penal Code - . - P 16 R.E. 2002 as amended by the Sexual Offences (5cil Provisions) Act, No. 4 of 1998. He was alleged to have on 4 Anril 10( 2005, carnally known one Moza Omary, (PW2), the complainant, a child of about 6 to 8 years. The appellant was sentenced to 30 years imprisonment, and in addition, he was ordered to pay the complainant a compensation of shillings 50,000/-. His appeal to the High Court, apart from being dLcmssed, the ;entence was enhanced to life imprisonment. Still aggrieved, the appellant has filed this second appeal to this )urt. The memorandum of appeal is drawn up haphazardly, the Jarent reason being that the appellant is a layman, with no legal I in drawing the same in accordance with the prescribed rules. it we gather from it can generally be summarized into two main nds of appeal. The first one is that the prosecution evidence not sufficient to base his conviction. The second is a complaint st the enhancement of the sentence to life imprisonment. • • . -,, TT •____ £ In this appeal the appellant appeared In person and the •respondent RepubUc was represented by Ms. Msafiri, learned State Attorney. Before the appeal went to hearing, we found it was important first to satisfy ourselves on the propriety of the decision taken by the first court of appeal in respect of the evidence of Moza Omary (PW2) the victim of the offence. As already indicated, PW2 was a child of tender years when the offence was committed. She was recorded to be between the age of 6 and 8. In the judgment of the High Court the learned appellate judge .expunged from the record, the evidence of Moza Omary. The reason for doing so was that sèctio 127(5) of the Law of Evidence Act, 1967 which requires the trial court to conduct voire dire examination of a witness below the age of 11 years before receipt of his/her evidence was not properly complied with. Apparently this was also an additional ground raised by the appeUant that he was wrongly convicted because no voire dire examination was conducted on PW2 before her evidence was received. p • The Court Invited the learned State Attorney to a' thk point. Ms. Msar, learned State Attorney submitted that M ( judge on first appeal correctly expunged the evidence the provisions of section 127(5) of the Law of Evidence Act, 137 CAP 6 R.E.2002 were not complied with. With respect to the learned judge on first appeal and the learned State Attorrey, we dQ not agree that the dedsion to expunge from the record, the evidence of PW2 was right. While there is no dispute at all that the record of the trial court shows that there was no proper compliance with the procedure for conductinci voire dire examination of a witness of tender age, and that the observation made by the learned judge on the steps to fbHow was right, we do not, with respect to the learned judge, agree that the remedy was to expunge the evidence from the record. Numerous decisions of this Court show that-where there is total failure.tO. conduct wo/re dire examination Or failuretozcornply yb/re ti/reexamination ______ 1 •. - - ] ofa..wtness unsworn. Among such decisions Is the case ofDeemayOaatl and /1 Two others Vs Republic Criminal Appeal No. 80 of 1994 CAT / (unreported) where the Court said:- It is seft/ed law that the Omission to conduct voire dif-eexan7/nation of a child of tender brings such evidence to the le vet of unswoi : evidence of a child which requires corrobora' Similar views were also expressed in the cases of Arap KoiiiVs R (1959) EA 92, Kisiri Mwita sf0 Kisir T.L.R 218 and Dahiri My Vs R [1989] T.L.R. 27 Henjewe!e Vs R Criminal Appeal No 164 of 2005 CAT "........ From these decisions, we are settled in our m evidence of PW2 was erroneously expunged. At this ........... •. desirable to examftie the evidence as a whole, includinn •.. which was expunged by the learned judge on first appez.'. . 1 Apart from the additional ground of appeal on the voice dire examination of the evidence of the complainant, in his memorandum of appeal the appellant seems to complain generally that the first appellate court failed to hold that the trial court did not make a proper appraisal of the prosecution evidence. Briefly, the prosecution evidence was that the appeHnt and the complainant were uncle and nephew respectively. The appellant is the brother in law of Omary Salumu (PW1) as he was married to his sister. PW1 is the father of PW2. On 4th April, 2003 P\/1 assigned the complainant duties which she refused to perform, and instead, went to the residence of the appellant. When PW1 found the complainant at the residence of the appellant playing, he ordered her to go home but she again refused. As PW1 attempted to punish the complainant, the appellant defended her. Although PW2 returned home later at 6 p.m. she only changed clothes and returned to the appellant's home. She returned home Jater at about 7 p.m. and her mother noted that shewas walking with difficulties. As she was asked to explain what happened, PW2 said she had injuries on her private parts She was examined by her mother and aunt and they observed that she had been carnally known. / The matter was reported to the Village Executive Officer (PW3) and the Police where a PF3 Form was issued. The complainant was taken to hospital for examination and a laboratory test was carried out which conirmed that the complainant was carna!ly known as the remarks on the form read 'vulva redernatous, spermatozoa mixed with bacteria population.' The medical examining officer in addition, observed that the complainant suffered a wound categorized as harm to the vulva. The complainant testified that the appellant did have sexual intercourse with her. Her father and the Village Executive Officer said in their evidence that the appellant admitted before them that he had sexual intercourse with PW2. and requested that the matter be settled amicably as he had just come out from jail. ThePF 3 was tendered and admitted in court as Exhibit P1. :. : • i:.__ The appellant denied the commtssion of the offence and said the case against him was framed up because of a dispute over land boundaries between him and PW1. Upon considering the totality of the evidence, the trial court was satisfied that the prosecution side proved the case against the appellant beyond reasonable doubt and convicted him. As already stated, the High Court expunged the eviaence of PW2 from the record but all the same ended up in upholding the conviction against the appellant. In his memorandum of appeal the appellant said that there are people mentioned by both PW1 and PW2 respectively who were supposed to come and testify but they were not called to do so. He for instance, said that much as PW1 said that his wife and sister, both examined PW2 to ascertain whether or not the complainant was raped, they were nevertheless not summoned to testify. Furthermore, the appellant lamented that although PWI and PW2 said in their evidence that the appellant admitted the , .' • •' commission of the offence in the presence of militiamen, the • ••• prosecution equally, failed to call the militiamen to testify. In his view, it was likely that the prosecution witnesses, who testified aqainst him adversely, conspired. The appellant also wondered why the doctor who examined PW2 was not called.to confirm the contenk of the remarks shown on the PF3 Form. He said the presence of ft iItQi was important because he was not present at the hosnH complainant was examined. On his defence of grudges on land between him ; appellant said the judge on first appeal did not gi':" consideration; consequently he ended up in upholdinc -, . based on insufficient evidence. He prayed that l allowed. The learned State Attorney on her part submitt the evidence of PW2, which the first appellate court ex the record, there remained sufficient circumstantial "i' - ncé to uphold the conviction àf the appellant. Much as she that 9 available to give evidence, except where he/she is prevented by sufficient cause from doing so, Ms. Msafiri was of the view that in this case the evidence of PW1, PW3 and the PF3 Form was sufficient cimumstantial evidence for upholding the conviction of the aDpellant. As regardsthe omission by, the prosecution side to ;mmn the mother and aunt of the complainant as well as the r to testify, the learned State Attorney contended that the Hq did affect the strength of the prosecution evidence. She p r r 4 t the appeal be dismissed. The appellant in a brief reply only reiterated wha ''-'c mised earlier in his memorandum of appeal. The issue before us is whether the appeal has mr 'IJp will not venture on the views taken by the High Court in i ri the conviction of the appellant as circumstances have nc" rhnged. However, it suffices to say that, for a different reason we will i,.iphold it the conviction. Why? PW1, the father of the appellant gave evidence that PW2 waswith the appellant on 41h April 2003 until PW2 retum1 home at 7 p.m. when her mother saw her walking with difficulties. Roth the mother and aunt of PW2 examined her and they noted th 'H had carnally been known. When PW2 returned home al: C. '- . nd changed clothes before returning to the residence of U' ''"nt, she did not have that problem. PW2 confirmed in her e' - it was the appellant who had carnal knowledge of . her. T ' ' nrm tendered in court as an exhibit also confirmed that the a ' ' had been raped. Moreover, both PW1 and PW2 said in t'r': icnce that the appellant admitted before them the cornmiss!1 of the offence and asked for an amicable settlement which PW1 turned down. This, in our view was sufficient direct evidence to base the conviction of the appellant. This also explains the position v'ie have taken not to. venture on the circumstantial evidence the iIidge on first appeal said entitled him to uphold the conviction of the appellant. Perhaps it is also the right time we return to the, additional ground of appeal by the appellant on failure to conduct vofre dire examination before the evidence of the complainant was taken and make a conclusion on it. Section 127(7) of the Law of Evidence Act, 1967 as amended by section 27 of the Sexual Offences (Special Provisions) Act, 1998 allows the court to convict an accused person charged of a sexual offence on uncorroborated evidence of a child of tender age so long as the cOurt is satisfied that the child is telling nothing but the truth. The trial court was satisfied that PV'7 told the truth. This is an additional reason explaining why the •'tionaf ground of appeal by the appellant has no merit. See also the case of Mohamed Sabu Vs R Criminal Appeal No. 8 of 2003 CAT (unreported). On the complaint by the appellant on the omission by the prosecution to summon all the witnesses who dealt with the various AM ' issues that arose during the investigation stage of the case, our view is that it would be of no assistance to the appellant as the law does not fix the number of witnesses required to prove the prosecution case. What is important is the relevancy of the evidence to the issue to be proved and the credibility of the witness. Accordinci to section 143 of the Law of Evidence Act, 1967 no particular number of witnesses is required for the proof of the case. In Goodluck Kyando Vs R Criminal Appeal No. 118 of 2003 CAT (unreported) the Court observed that:- This being a criminal case, the .burden lies on the prosecution to establish the guilt of the appellant beyond reasonable doubt ... This in our view is not dependent upon the number of witnesses called upon to testify.(see section 143, Evidence Act, 1967). It is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good 13 1/ and cogent reasons for not believing a I' V witness. On the omission by the prosecution side to summon the medical officer who carried out the laboratory examination and filled the PF3 Form, it is true; th.e appellant was entitled, under section 240 of the Criminal Procedure Act, 1985 to be informed of his riht to have the medical officer summoned for cross-exarninatic. However, in this case the omission did not prejudice the appellant. i ''e have shown above, the law aflows a conviction based on uncroborated evidence of a child of tender years so long as the t'rH court is satisfied that the child told nothing but the truth. The 'nt was the uncle of the complainant and therefore she kne' ' April 2003, the date the offence was committed, the comn! ant was with the appellant almost the whole day. She was seen "nlking with difficulties after she returned home and she said it was the appellant who had sexual intercourse with her. Under the circumstances the' trial court was right to believe the complainant. 'Moreover, the. PF3 Form was admitted in eviderice without objection from the appellant. 14 IM At this stage let us examine the complaint that, the PF3 Form (Exhibit P1) was not tendered in court by PW 2. It was produced by the father (PW1) of the complainant and not the Police Officer. This in bur view is a minor irregularity which does not affect the validity of the proceedings. The court was caught in a situation which could be QI easily explainedand accommodated. The complainant was a child tender age and it was PW1 who took her to hospital for the medical examination on the rape. Under the circumstances we would not say that the irregularity was fatal. The last ground of appeal is the enhancement of the sentence by the High Court to life imprisonment. This ground need not detain us. There is evidence that the comptainah.t was below 10 years when the offence was committed. Under section 131(3) of the Penal Code as amended by the Sexual Offences (Special Provisions) Act, 1998 the only penalty for the offence of rape involving a girl of below ten • years is life imprisonment, regardless of the age of the offender. there is, therefore, no reason for faulting the decision of first • •"•• .,•••• • • 15 OR appellate court on the sentence of life imprisonment which the appeflant was given. In the event, for the foregoing reasons, we will uphold the conviction against the appellant and dismiss the appeal. DATED at DAR ES SALAAM, this 24th day of October, 2007. D.Z.LUBUVA JUSTICE OF APPEAL / J.H.MSOFFE JUSTICE OF APPEAL .1 I N.P.KIMARO -- JUSTICE OF APPEAL I certify that this is a true copy of the original. • S .MRdfr)ANYIKA • •• DEPUTY REGISTRAR COflVj 16