athumani bakari vs republic 2008 tzhc 135 4 july 2008

IN THE HIGH COURT OF TANZANIA AT TANGA (DC) CRIMINAL APPEAL NO. 23 OF 2006 (Originating from Cr. Case No.126/2005 Handeni District Court) ATHUMANI BAKARI............................................... APPELLANT VERSUS THE REPUBLIC...................... ............... ............RESPONDENT 8/6/08 & 4/7/08 JUDGEMENT Shayo, J. The appellant in this case one Athumani Bakari was charged and convicted for the offence of rape contrary to section 130(2)(e) and 131(1) of the Penal Code Cap. 16 R.E. 2002. He was sentenced to a statutory term of 30 years imprisonment and was also ordered to pay compensation of Tshs. 100,000/= to the victim. The appellant was aggrieved by the entire decision of the trial court. He is now appealing against both conviction and sentence. The case for the prosecution was to the effect that on 11/4/2005 at around 8.00pm. PW.3 Mwajuma d/o Seif who was aged 13 years had allegedly been sent to the shop at Kivesa village. On the way the appellant called her but she refused to stop so he advanced towards her, fell her down, removed her underparts and then raped her. PW.3 cried for help but no one came up to her rescue. The appellant then ran away while PW.3, ran to their house bleeding. She did not report the incident to anybody as she said she was afraid. On the next day 12/4/2005 morning hours she was noted to be pale by her grandmother. The said grandmother inspected her and noted injuries in her private parts. PW.l Zainabu Musa and PW.2 Ramadhani Saidi were informed and they rushed PW.3 to hospital. At the hospital PW.3 was admitted after being examined. It is alleged blood transfusion was conducted on her. PW.4 Sefu Alii father of PW.3 was among those who donated blood. While hospitalized PW.3 informed PW.l her aunt that the appellant had raped her. According to PW.l, PW.2 and PW.4 were told by the doctor and nurses who attended PW.3 that sh£ was raped. PW.2 and PW.4 went to report to police station whereof a PF.3 was issued to PW.3. PW.4 then went with two police officers to the appellant's place of work and arrested him. That lateron PW.3 was taken to police station where she mentioned the appellant as her rapist. The appellant Was finally charged with the preferred offence. In his defence the appellant denied to have committed the alleged offence. He claimed to have been arrested on 14/4/2008 at his place of work and taken to police station where PW .l and PW.3 came. That upon interrogation PW.3 was forced by her father and uncle to say she had played sex with him. In his memo of appeal the appellant mainly complains that PW.3's identification evidence- was invalid as it was during the night at 8.00pm and conditions were not favourable for connect identification. More importantly that he was convicted on the basis of inconclusive circusmtancial evidence that raised suspicion against him. The learned State Attorney, Ms Makondo declined to support conviction of the appellant. She submitted, inter alia, that the evidence of identification was not watertight that it was the appellant who raped the complainant PW.3. Worse of all that voire dire examination was not carried out on PW.3 a child of tender years as required by section 127(2) of the Evidence Act Cap.6 R.E. 2002. I allowed the appeal on 3/6/2008 when it came up for hearing but, I reserved my reasons for doing so which I now give in my judgement. There is no doubt whatsoever that the prosecution case depended entirely on the credibility and identification evidence of the complainant - PW.3 which was the basis of the appellants conviction. But it is clear from the evidence that the victim of the alleged rape that is, PW.3 was aged 13 years thus under fourteen years, who under our Evidence Act" is regarded as being of tender years, as it is so provided in section 127(5) of the Evidence Act. The law, that is, Evidence Act provides special provisions for reception of the evidence of children of tender years. 2 Section 127(2) of the Evidence Act provides as follows:- " 127(2) Where in any Criminal Cause or matter any child o f tender years called as a witness does not, in the opinion of the court\ understand the nature o f an oathf his evidence may be received, though not given upon oath or affirmationf if in the opinion o f the court, to be recorded in the proceedings, he is possessed o f sufficient intelligence to justify the reception o f his evidence, and understands the duty o f speaking the truth." It is plainly clear that if the child of tender years doesn't understand the nature of an oath, her evidence may nevertheless be received without oath or affirmation only on two major conditions. That she is possessed of sufficient intelligence and she understands the duty of speaking the truth. PW.3 Mwajuma d/o Seif was a child of tender years as the record shows that she was aged 13 years thus below the apparent age of fourteen years. The record of the trial court is silent as nowhere is recorded that she possessed sufficient intelligence to justify reception of her evidence, and that she understood the nature of speaking the truth. The record of proceedings indicates that PW.3 gave her evidence on affirmation on 25/7/2005. The trial magistrate seems to have abdicated from her judicial duty for failing to conduct voire dire examination to establish whether the two conditions existed before she could receive the evidence of PW.3 on affirmation. It was mandatory for the trial magistrate to abide to the dictates of the law, in that, she should have carried out a question and answer session on PW.3. Then at the end make a finding to the effect that PW.3 did understand the nature of an oath and she was possessed of sufficient intelligence and she understood the duty of speaking !the truth. The trial magistrate did not do so and as such it is not clear what criteria she used to receive the evidence of PW.3 on affirmation. In the case of Nyasani s/o Bichana V.R. (1958) EA.190 the Court of Appeal when considering the above mentioned similar provision, held:- 3 "It is clearly the duty o f the court under that section to ascertain, first, whether a child tendered as a witness understands the nature o f oath, and, if the finding on this question is in the negative, to satisfy itself that the chiid is possessed o f sufficient intelligence to justify the reception of the evidence and understands the duty o f speaking the truth. This is a condition precedent to the proper reception o f unsworn evidence from a child, and it should appear upon the face o f the record\ that there has been a due compliance with the section. " (see also Kibangery V.R. (1959) E.A. 94). As stated earlier, in our instant case the proceedings as recorded by the trial court do not show that the trial magistrate or all complied with the mandatory provision of the law. Consequently the evidence of Pw3 - Mwajuwa Seif was wrongly admitted and acted upon to convict the appellant. Pw3's evidence was not only crucial to the prosecution case but it was also the sole evidence of identification of the person she alleged to have rapid her. Even assuming that Pw3's evidence was properly admitted as a result of voire dire examination, her evidence of identification was not watertight. The alleged crime was committed during the night time at 20.00hrs. There was no explanation as to how PW.3 was able to identify the appellant in the absence of any descriptive features. Not only that, as rightly submitted by the learned State Attorney, the charge sheet indicates that the appellant raped Mwajuwa Seif - PW.3 on 11/4/2005 at 20.00hrs. This contradicts with the PF.3 (Exh. PE.l) which is dated 13/3/2005 meaning PW.3 was not yet raped when the PF.3 was issued to her. It might have been a mistake of the author who might have confused the dates. But then, the PF.3 could not be relied upon since the doctor did not indicate that the complainant - PW.3 had been raped. Definitely the prosecution evidence was too weak and hence insufficient to be the basis of the % appellant's conviction. 4 V It was under these circumstances that I allowed the appeal, quashed the appellant's conviction, and set aside the sentence. I further ordered that he be released from^rip^FrfGrthwith unless otherwise lawfully held. t \ A.A.^/^HAYO, J. P': &\ 23/ 6/2008 W & j IZ ; 'xp^lffoered atTSfffg/tfiis 4th July,2008. A.A.MJ^HAYO, J. 4/ 7/2008 For Appellant:- Absent. For Respondent:- Ms Kitau - S/A. 5