beatus nyakunga vs republic 2007 tzhc 107 12 october 2007

IN THE HIGH COURT OF TANZANIA AT IRINGA APPELLATE JURISDICTION (Iringa Registry) (DC) CRIMINAL APPEAL NO. 26 OF 2007 (Original Criminal Case No. 140 of 2005 of the District Court of Iringa District at Iringa) Before: D. R. Lyimo - RM BEATUS NYAKUNGA.............................. APPELLANT VERSUS THE REPUBLIC ................................ RESPONDENT JUDGMENT MCHOME. J . The Appellant, Beatus Nyakunga, was charged with Rape contrary to Sections 130 (2) (a) and 131 (1) of the Penal Code as amended and replaced by Sections 5 and 6 of the Sexual Offences Special Provisions Act No. 4 of 1998. He was found guilty by the Iringa District Court (D.R. Lyimo, R.M.) and sentenced to thirty years imprisonment. He is aggrieved and has appealed to this court against both conviction and sentence. The appellant is alleged to have raped a child of about 10 years of age after giving her 100/=. The child did not report the incident till after three days. Another child, PW.3 witnessed the incident. PW .l, a medical assistant examined the complainant six days after the alleged rape. In his defence the appellant denied to have committed this offence. He says he was just framed up. I have doubts on the prosecution case. First, the evidence of PW .l, the Medical Assistant, is doubtful. He told the trial court he examined the complainant on 9th April, 2005 while the girl was raped on 3rd April, 2005. He says in his observations he found the girl had bruises in her vaginal parts, that her hymen was destroyed .... "I found blood oozing, I did not find sperms ..." I doubt this witness's evidence because he says the girl's virginal was "oozing blood" six days after the rape. Oozing blood for 6 days, the girl would have been anaemic. Besides that this witness, being an -expert witness, ought to have stated his special qualifications, special knowledge, skill, training and experience first, not just layin g "I am a medical assistant." See Section 47 of the Law of Evidence Act. The other doubt is raised by the eye witnesses, PW.2 and PW.3. These are the complainant and her witness. These witnesses are children of tender years. Their testimonies ought to have been recorded under Section 127 (2) of the Law of Evidence Act, which reads: "Where in any Criminal cause or matter a child of tender age called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be received though not given upon oath or affirmation if in the opinion of the court, which opinion shall be recorded in the proceedings he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth." These provisions of the law are mandatory that the trial court must satisfy itself that the witness understands the nature of oath before he swears or affirms him; that he understands the importance of speaking the truth; and if she is possessed of sufficient intelligence to testify. In the trial of this case before taking the evidence of PWs 2 and 3 the trial magistrate recorded thus: "VOIRE DIRE CONDUCTED Court: What is your, name ? * Child: Aisha Kalinga. Court: What is your father's name? Child: My father's name is Lukasi Mfugale. Court: What is your mother's name? Child: My mother's name is Velinanda Lieu. Court: What class are you and in which school? Child: I am in Std. two at Kihanda Primary School. Court: Do you know how to study and write? Child: Yes. Court: Is there anything happen to you? Child: Nothing was done to me before. Court: Do you know the accused person at the dock? Child: I know the accused person is my neighbour. Court: That what did accused did to you? Child: I went to play at the house o f Irene there I met the accused person who gave me money where I refuse late I receive them he took me inside and put off my panties and his trousers and thereafter raped me. Court: Findings:- The child know to speak truth sufficiently. m * Sgd. D. R. Lyimo, R.M." The learned trial magistrate repeated similar "investigation" as above on the third prosecution witness and came to the same finding. These voire dire tests conducted were not proper according to the law. Instead of asking the child witnesses whether they know the nature of an oath and/or the importance of speaking the truth, the learned trial magistrate asked them whether they know the appellant and who their parents are. The questions 4 A whether they go to school helps to establish if they have enough intelligence. But no question was directed to the witnesses on whether they know the importance of speaking the truth and nothing but the truth. Where the proceedings do not show that the learned trial resident magistrates complied with the mandatory provisions of Section 127 of the Evidence Act the evidence of those witnesses concerned was wrongly admitted. See the case of Dhahiri Aly V. Republic (1989) T.L.R. 27 per Mushi. J. (Rtd), Similarly in our case the evidence of PW.2 and PW.3 was improperly admitted. This incident is alleged to have taken place on 3rd April, 2005. But the complainant is alleged to have reported it to her mother three days later. And the latter reported it to the police on 8th April, 2005. A witness's failure to report a crime on time makes his credibility dubious. Though the complainant said she was threatened by the appellant that if she reported she would be killed there is no evidence that when she reported those threats had been removed. All in all, after considering the testimonies of PWs I, the medical assistant, PW.2, the complainant and PW.3 the eye witness and for the reasons I have stated above I am of the view that the appellant was not properly convicted. Therefore I allow this appeal, quash the conviction and set aside the sentence. The appellant is to be released from 5 /• prison immediately unless held further for some other lawful causes. L-.BT M CHOME^ ^ JUDGE 12/10/2007 Delivered/%Vs" 15th',daytofr.October, 2007 in the presence of h / \t\\ the appellant//-/ Vr-A i;x. l\ . - , / ; v>. N\ -- ' ' L;Bt V iCHOME JUDGE 15/10/2007