20081011 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: RAMADHANI, C.J., MROSO, J.A. And MUNUO, J.A.) CRIMINAL APPEAL NO. 57 OF 2006 SAL"EHE ANDREW. ■■■■■ ••••••••••• ■ •• II ■■ ••••••••• I. ■ •• ■■■■■■■ •• APPELLANT VERSUS THE REPUBLIC ............................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tabora) (Mwita, J.) dated the 12th day of December, 2005 in (DC) Criminal Appeal No. 14 of 2003 JUDGEMENT OF THE COURT · 29 September, 2008 & 10 February, 2009 MUNUO, J.A.: In Criminal Case No. 160 of 2002 in the District Court of Nzega in Tabora Region, the appellant, Salehe Andrew, was convicted of 2 counts of rape c/s 130 and 131 of the Penal Code, Cap. 16 R.E. 2002, after being found guilty of raping two children namely Anna d/o Emmanuel and Margareth d/o John on the 22 nd June, 2002 at about 14.15 hours and 15 hours respectively, at Kakurungu Village within I ., • Q Nzega District. The trial District Court sentenced the appellant to 30 years imprisonment on the 1st coun"t; 30 years imprisonment on the 2nd count, and 12 strokes of corporal punishment, the sentences to run concurrently. The appellant was also ordered to pay Sh. 50,000/= compensation to each victim. Aggrieved, the appellant unsuccessfully lodged (DC) Criminal Appeal No. 14 of 2003 in the · High Court of Tanzania at Tabora. Mwita, J., as he then was, dismissed the appeal in its entirety giving rise to this second appeal. ) The two complainants, PWl Anna Emmanuel and PW2 Margareth John, went to fetch clay for pottery in the wildern,ess. It . was on a Saturday, on the 22 nd June, 2002 at about 4.00 p.m. The· appellant, whom they identified. as their neighbour, passed by in the company of some other person who was not a party to this case. He returned shortly and found the complainants picking fruits on the .__) tree. He ordered them to come down which they did only to be assaulted by the appellant who beat them with a stick. He then ordered the girls to go into the bush and cover their faces which they refused. The appellant threatened to kill the victims if they raised an alarm. He ripped off PW2's clothes and forced his male organ into '.I', '\ her private parts. When he was through with PW2 he turned on· PWl and similarly forced his male organ into her private parts. Thereafter · the appellant left. The victims reported the sexual assault by the appellant to their parents as corroborated by PW3 Emmanuel Ngweso, a brother of PWl and PW4 John Lushinge, the father of PW2. Because PWl and PW2 knew the appellant and identified him in ) broad daylight on the material afternoon, PW3 traced the appellant and turned him over to the police. PWS No. E57 D/C Michael received the complaint and gave PF3 forms, Exhibit Pl, to the victims for medical treatment. Both PF3 forms, Exhibit Pl show that the complainants Anna Emmanuel and Margareth John had bruises in their private parts and their hymen ._) was ruptured confirming that the said victims had been sexually assaulted. The appellant chose to remain silent in defence. 4 In this appeal, the appellant filed five grounds <?f appeal complaining that the evidence ·of the complainants was not sufficient for convicting him. He blamed the trial court for not conducting· vofre dire examination on the complainants who were children of tender years at the material time. He also faulted the trial court .for relying. on the PF3 forms, Exhibit Pl, instead of calling the medical doctor to testify. For lack of evidence to sustain the convictions, the appellant urged us to allow the appeal. Mr. Rweyongeza, learned State Attorney, supported the convictions and sentences imposed on the appellant. Me conceded that the trial court omitted to conduct voire dire examination as stipulated under section 127 (2) (5) of the Evidence Act, Cap. 6 which state inter-alia:- 127. (2) 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. (3) (4) (5) For the purposes of subsection (2), (3) and (4), the expression "child oftender age" means a child whose apparent age is not more than fourteen years. •' . It so happened that .PW1 and PW2 are age mates: at the material time they were fourteen years of age so they were children of tender years under the provisions of section 127 (5) of the Evidence Act, Cap. 6 R.E. 2002. · The learned State Attorney : cited the case of Herman Henjewele versus Republic, Criminal Appeal No. 164 of 2005, Court of Appeal of Tanzania at Mbeya (unreported) wherein the Court considered the effect of the voire dire test not being conducted by the triaJ court as was the case here, and held that such evidence should be treated as unsworn evidence. The Court referred to the 0 .. case of Deemay Daati versus Republic, Criminal Appeal No. 80 of 1994, Court of Appeal of Tanzania and observed that·- In a relatively recent decision of this Court - Deemay Daati versus Republic (cited supra) ..... we said that the evidence of a child of tender age which is given on oath but without the court conducting a voire dire examination under section 127 (2) of the Law of Evidence Act, 1967 should be treated as unsworn evidence which requires corroboration. The Court in that case referred to various previously decided cases on unsworn evidence. Such decisions were:- Kibangeny Arap Kolil v. R [1959] E.A. 92; Kisiri Mwita s/o Kisiri v. R [1987] TLR 218 and Dahiri Alli v. R [1989] TLR 27. ;,J ·In the instant case, Mr. Rweyongeza contended, the evidence of PW1 and PW2 should be considered unsworn for lack of the voire dire examination. He observed, however, that PWl immediately reported the rape by the appellant to her brother, PW3 Emmanuel Ngweso, who traced and arrested the appellant, while PW2 reported the rape to her father, PW4 John Lushinge, who, together with PW3, took the appellant to the police. The evidence of PW3 and PW4 corroborates the evide~ce of the victims ·who report~d the rape to their parents at the . earliest opportunity whereupon . t_he appellant was arrested and ac~ordingly charged. The issue before us is whether the prosecution established the guilt of the app~llant beyond all reasonable doubt. The appellant was a neighbour and co-villager of the victims. He committed the offence in broad daylight in the wilderness after threatening to kill th~ victims if they dared raise an alarm. There was no possibility of mistaken identity because the appellant was known to the victims and the conditions of identification in broad daylight were favourable. Throughout the trial there were no indications of ill will or grudges against the appellant. As for the appellant's allegation that the trial court failed to call the doctor who examined the victims he raped, the record shows that the trial magistrate complied with the provisions of section 240 of the Criminal Procedure Act, Cap. 20 R.E., 2002 as reflected at pages 5 and 6 of the record: Accused: No objection [to PWl 's PF3]. I do not want to call the doctor. Court: PF3 admitted as Exhibit Pl. Furthermore, after PW2 testified, she too tendered her PF3, Exhibit P2 without objection from the appellant as well. The record ,· ) shows· that the trial magistrate complied with the provisions of section 240 of the Criminal Procedure Act, Cap. 20 R.E. 2002 which state inter-alia: 240 (1) In any trial before a subordinate court, any document purporting to be a report signed by a medical witness upon any purely medical or surgical matter shall be received in evidence. (2) The court may presume that the signature to any such document is genuine and that the person signing the same held the office or had the .. : : . . ' ;' qualifications which he possessed to hold or to have when he signed it. (3) When a report refe:rre_d 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 section. We have no speck of doubt that the trial magistrate complied with the provisions of section 240 (3) of the Criminal Procedure Act, Cap. 20 R.E. 2002 whereupon the appellant opted not to call the medical doctor who examined the victims. Ground 4 of the appeal is thence without merit. The appellant chose to remain silent in defence. iU Like the learned judge, we are satisfied that the prosecution established the guilt of the appellant beyond all reasonable doubt. The appeal is tot~lly lacking in merit. We accordingly dismiss the appeal. DATED at DAR ES SALAAM this 11 th day of October, 2008. A. S. L. RAMADHANI CHIEF JUSTICE J. A. MROSO lUSTICE OF APPEAL E.N. MUNUO JUSTICE OF APPEAL · I certify that this is a true copy of the original. ! J= P.A. LYIMO DEPUTY . EGISTRAR l