manilambona paschal vs republic 2007 tzhc 361 2 july 2007

IN THE HIGH COURT OF TANZANIA AT BUKOBA ORIGINAL JURISDICTION (Bukoba Registry) CRIMINAL APPEAL NO. 80/2006 (Arising from Crim inal Case No. 293/2000 Ngara D istrict Court)(Before: M. Paul, Esq. DM) MANILAMBONA PASCHAL ==============APPELLANT VERSUS THE REPUBLIC ================ ===RESPONDENT JUDGMENT Mussa. J: In the District Court of Ngara, the appellant was arraigned for Rape, contrary to sections 130(1) (2) (e) and 131(1) of the Penal Code, Chapter 16 of the laws. The particulars were that on the 20th day of September, 2000, at Lukole refugees camp, within the District of Ngara, the appellant unlawfully had carnal knowledge of one Habimana Jemina. The case for the prosecution was comprised of three witnesses. At the commencement of the trial the alleged victim of the rape, that is, Habimana Jemina Ndaruseguliye (PW1), was eleven years of age. Upon a voire dire examination, the trial court was satisfied that she was possessed of sufficient intelligence and that she understood the nature of an oath. Habimanas' sworn evidence was to the effect that she knew the appellant as a domestic servant of their home-stead. On the alleged date and place around 9.00p.m. Habimana had requested her father to escort her to latrine but the father, in turn, told the appellant to do so in his place. That the appellant did but at the latrine the appellant grabbed hold of her, undressed and raped her. There was nobody around and the appellant is said to have warned her against shouting for help. Habimana said she was afraid to disclose the ordeal to her parents but on the 23rd day of September, 2000 she did tell the incident to her mother after she felt some pains. Habimana had told the trial court that her mother was not present at home on the day of the incident. Upon being informed, the mother, namely, Ntachonungutse Leya Ndaruseguliye (PW2), took Habimana to hospital and later the police station where the famous police form No.3 was issued. There was further evidence to the effect that upon medical examination conducted on the 24th day of September, 2000 it was determined that Habimana had her hymen torn and that some pus was being discharged from her vagina. In contrast, Ntachonungutse, the mother, had told the trial court that she was actually present on the day of the incident and repeated the detail about Habimana being escorted to the latrine by the appellant. Her daughter did not disclose anything on that fateful day although, on the morrow, which should have been the 21st day of September, 2000, she could notice Habimana was not walking properly. It was further the testimony of PW2 that she did ask her daughter as to what was wrong and it was, then, that Habimana disclosed that she was raped by the appellant the previous night. PW2 is said to have inspected Habimanas' private parts and noticed there and then that her hymen had been torn. Paradoxically, upon knowledge of such a beastly assault on her daughter,PW2 said he did not accost the appellant. The following day, which should have been, the 22nd September, 2000, the appellant is said to have requested PW2 to be given a sum of shs:300/= to which PW2 advised him to borrow the sum elsewhere and that she would later refund it. PW2 said she then reported the incident, apparently, to the refugees' camp authorities and the appellant was arrested. But according to Ndagijimana Pastory (PW3) who worked on gender based violence at the camp, the incident was disclosed by PW2 on the 23rd September, 2000 who, rather, reported, ironically though, that her two daughters have been raped. Ndagijimana said he was shown the alleged victims one aged 7 and the other 11. He also said that he interrogated the appellant who admitted the offence and, afterwards, took him to the police station. According to PW2, at the police station the appellant also admitted the offence and said that he was tempted into the act. To this version as told by the prosecution witnesses the appellant denied and protested innocence. The appellant said that on the day of his arrest he had demanded from PW2 his dues amounting to a sum of shs:20,000/= and a further sum of shs:8000/= that PW2 had borrowed from him. It was, apparently, a Sunday and PW2 is said to have promised to pay the appellant after attending to prayers but; the appellant was surprised to see her (PW2) coming back in the company of the camp guardians who arrested him. Although he did not expressly suggest, the case for the appellant was somewhat that a case was fabricated against him by PW2. On the totality of the evidence, the learned trial Magistrate was impressed by the version as told by the prosecution. The apparent defence by the appellant of a frame up was considered and rejected. In the upshot the appellant was, accordingly, convicted to a term of thirty years imprisonment. Dissatisfied, the appellant now appeals setting the points of which he complains in a petition comprised of four grounds. Before me, the appellant, unrepresented adopted his petition of appeal without more. The petition of appeal is verbose but, in a nutshell, the appellant complains of the procedure for voire dire examination being flawed; that in the absence of a written statement, the allegation by PW3 that he interrogated him and admitted the offence is valueless; that he was denied his right to an interpreter and that he was convicted on delayed and doubtful evidence. For the respondent Republic Mr. Kweka fully supports the conviction. Learned state attorney submits that the trial court properly conducted the voire dire examination; that the trial court believed that PW3 told a credible tale about the appellant confessing to the offence; that there is nothing on record to indicate that the appellant requested for an interpreter and; that the evidence was overwhelming against the appellant. Dealing with the petition and, to begin with the complaint about the voire dire examination being flawed; I must express at once that the learned trial Magistrate properly applied the law and I am at a loss to understand how it can be contended that the procedure was flawed. The appellant did not quite expound on the contention which appears to me to be wholly without substance. Again, as correctly formulated by the learned state attorney the record below does not indicate that the appellant ever requested for an interpreter or that he had language problems. The complaint, it seems, is being raised as an afterthought and the same is untenable. The appellant also criticized the learned trial Magistrate for reliance on his alleged confession made to Ndagijimana. There is, to me, some force in the argument. It is the mainstay of criminal jurisprudence that the onus of proving that a confession was made and that it was voluntarily so made throughout lies on the prosecution. Granted that, in the present case, Ndagijimana was forthright that the appellant confessed to him but apart from saying that their conversation was private and confidential he did not reveal the details about the circumstances under which the confession was made. If I may so express, there may be cases where a confession is induced by threat, promise or other prejudice in such circumstances as is likely to cause an untrue admition of guilt to be made. Where a confession is prompted by such an inducement held out to the maker by the person to whom it was made, the same cannot be voluntary. I should not be taken, I hope, to suggest that, in the present case, the alleged confession was as such prompted by an inducement. Far from it; rather, much as the onus is on the prosecution, one would have expected of it and, indeed, it was in the best interests of the prosecution; to exclude the possibility of an inducement and establish to the hilt that the confession was nothing but voluntary. This was not done and, to me, the alleged confession to PW3 is suspect and cannot be relied upon. The appellant was further alleged to have confessed the offence at the police station in the presence and hearing of PW2. The prosecution did not adduce evidence from the officer to whom the confession was made and neither was the record of the interview produced. To this, the provisions of section 57(1) of the Criminal Procedure Act are very clear and provide thus:- A police officer who interview s a person for the purpose whether the person has com m itted an offence shall, unless it is in a ll circum stances im practicable to do so cause the interview to be recorded. It was not disclosed at the trial that under the prevailing circumstances, it was impracticable to cause the interview to be recorded. It was a matter to which the prosecution should have, at least, furnished an explanation and, to me, in the absence of a recorded interview, the claim by PW2 that the appellant made a confession at the police station cannot be relied upon. The appellant further complains generally that the case for the prosecution was derived of delayed and suspect evidence. Assuming it was true the appellant threatened Habimana not to disclose the incident; it may be that at her tender age, Habimana was under a form of pressure and one which would have required the firmness of an adult to resist and confront the prospect. Taken from that angle, the delay by Habimana in reporting the crime is to me, quite understandable. But there were some other disquieting features of the prosecution case that exercised my mind a great deal. A painstaking comparison of the evidence of the prosecution witnesses elicits a number of inconsistencies and, in some respects, unexplained accounts. Habimana, for instance had told the trial court that her mother was not at home when this fateful incident occurred but, in contrast, the latter said she was actually present. Habimana also said that she revealed the incident for the first time to her mother on the 23rd day of September, 2000 but, again, in contrast, the latter said she was informed by Habimana of the incident the next day of the happening which should have been on the 21st day of September, 2000 . What is even more intriguing is the report given by the mother to Ndagijimana on the 23rd September, 2000 to the effect that two of her daughters had been raped. Assuming it was true that two and not one of her daughters were raped, PW2 did not at all furnish the details of the other rape. The question is why? There is, finally, the passive stance taken by PW2 towards the appellant upon being told of the nasty incident which is unusual and unlikely to instill confidence in the truthfulness of her entire account. Thus, the prosecution witnesses did not only differ on some material particulars but also had the chronological order and the details of the events somewhat confused or concealed. Where prosecution witnesses are involved, confusion, contradiction and hesitancy in giving details of an occurrence are almost invariably the signs of prevarication and lack of veracity. It would have been understandable, perhaps, if a considerable period of time had elapsed since the events that were being described but; this trial was commenced just about two months after the occurrence. To me, the case for the prosecution was comprised of relatively significant disquieting features to which there is reason to throw doubt on the account told by the prosecution witnesses. As is the common practice in criminal trials the benefit of doubt is extended to the appellant. The appeal is allowed with an order for the appellants' immediate release from custody unless held there for some other lawful cause. Order accordingly. K.M.\ MUSSa JUDGE 27/06/2007 02/7/2007 Coram: D.E. Mrango - DR Appellant: Present Respondent: Absent Order: Judgment delivered today the 2nd day of July 2007 in presence of the appellant in person and in absence of the Respondent. D.E. Mrango DISTRICT REGISTRAR 02/07/2007 ATBUKOBA 02/07/2007