20081202 TZHC Mbeya

) IN TI-IE HIGI-I COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION (MBEYA REGISTR)) 1)C CRIMINAL APPEAL NO. 37 OF 2008 (Original Criminal Case. No. 485 of 2006 from Mbeya District Court at Mbeya) LUSEKELO S/O MOSES ... ... ... APPELLANT VERSUS THE REPUBLIC ... ... RESPONDENT J U I)G ME Ni' I I '" Nov. & 2' Dec. 2008 MSUYA, J. On the 6111 day of JulY 2007 the appellant. Lusekelo Moses. was convicted of the offence of rape contrary to sections 130) and 131 of the Penal code Cap. 16. as amended by the Sexual Offences Special Provisions Act No. 4 of 1998. in the District Court of Mheya at Mbeya and was sentenced to life imprisonment . .Aggrieved by the decision he decided to appeal to this Court. The evidence as adduced at the trial court \,vas to the effect that. P\V.3. leela Osia a clii Id aged 7 years and the appellant were living in the same house but di lTcrerit roonis. On the 1 7 ° day of August. 2008 at around 18.00 hours. Vkhlie PW.3 hCI young sister playing, the appellant \vent to where they were, and asked them if their parents were at home. The appellant then chased 13W.3 : young sister and took PW.3 to his room. closed the door, removed the clothes of PW.3 and his clothes and had carnal. kno.vledge of her. PW.3 tried to resist but she could not. She Felt pain, attempted to cr but she could not cry loudly as the appellant closed her mouth hy his hand. The appellant threatened her and warned her not to tell her parents. PW.3 went out of the room crying and she was bleeding. Later on PW.2. Geiruda Osia. the mother of PW.3 came back home from his daily routine and l'ouncl her clii Id crying. PW.2 asked her child about what was wrong and PW.3 explained to her. As PW.2 was looking for help. his husband returned home and, they both reported the matter to police.. P\V. 1 E.5276 DC Stanley and PW.4 C.202 I DSGT. Stanislaus are the police o1cers who interrogated the appellant. They both informed the trial court thaL the appellant, admitted to have committed the offence. PW. 4 recorded the appel ant s caution statement which was acimined in court as part of the proSecution s exhibits. When the matter was reported to the pohce PW.2 and PW.3 the mother and her child were gi\;en PF.3 and went to the hospital for medical examination. They were attended by PW.5 James Lvimo, a doctor who testifecI that, while he was in his oh]ice on the 7111 August, 2006 he received a patient by the name of Tecla Osia (13 W.3), who 'as crying alleging to have been carnal known. According to PW.5 the victim. PW.3 \ as 31 around the age of 7 or 8 years. PW.5 medically examined 1 3 w.3 and ibund the iollowini nj uries. "Maximum injury on the hymen vagina and urinal, the harm is serious harm; the organ inflicted is a penis". The PF. 3 was admitted in the trial court as part of the prosecution's exhibits. In his defence the appellant denied the charge. He deposed that on the alleged date of the incidence he was not at home. That he was at Maendeleo B. Street. He WaS surprised to be arrested in connection with the offence of rape at around 2 1 .00 hours when he was going back home. That he was taken to the police, beaten and l'orced to aclm it a statement recorded at the police that he committed the ofhnce. In cross examination the appellant admitted that he was I ivinc with PW.3 and her parents in the same house but different rooms. He also informed the trial court that he had no grudges vith PW.3 and her parents. In convicting the appellant the trial court after warning itsel I . ol' the dungcr of relying on the testimony of a minor and addressing itself in terms of Section 127 (2) of the Tanzania Evidence Act, found the only eye witness who appeared belore the court to possess sufficient intelligence and understood the duty of speaking the truth to be credible. Further that her testimony in relation to the fact that she was raped is corroborated by the mother 1 3 W.2 and P'V.5 the \'ledical Doctor. Dismissing the appe11ants ct//hi defence, the trial magistrate held that according to the nature of the offence the accused is charged with, it was possible for him to comm it the offence and after a few minutes be at a different place. In this appeal. the appellant appeared in person and the was represented by Mr. Msigwa learned State Attorney, At the hearing of the appeal. the appellant appeared to be very ill. He was asked ii' he \Vt I be able to lol lo the proceedings and he said he can follow the proceedings. I: iVe of appellants grounds of appeal are niainly based on corroboration of PW.3 s evidence, caution statement which was admitted as exhibit, and that there was no evidence tendered to pro\'e that the spermatozoa found in PW.3's vagina is that of the a p pe lan t. The appellant's complaint on corroboration is that the court mainly relied on the evidence of PW.2. PW.1, PW.4 and PW.5 which was hearsay. That all the witnesses were just informed by PW.3 that he was raped. None of the witnesses witnessed when the appellant was raping PW.3. Submitting on the need of corroboration he stated that the trial court erred on points of fact and law, to rely on a single vwlleSS in convicting him. He rek'rrcd this court to the cases of SEBASTIAN P. DIAZ V. R. (1927) IJLR. 214 and PAOL() JVIRII\i1 V. R. (1977) LRT No.34. He submitted that the trial court did not warn itself of the danger of convicting him on an evidence of a single witness vvIllch was uncorroborated. In relation to the caution statement the appellant argued that the trial magistrate did not conduct a trial within a trial before admitting a caution statement clespi'ie his objection when it was tendered as exhibit. He referred the court to two cases in support of his submission. which were not in the Law Report cited.. Lastly the appellant wondered why he was not nieclicallv examined to lnd out whether his sperms resembled those found in PW.3's vagina. Responding to the appellants submissions Mr. Msigwa. learned State Attorney submitted that the trial cotirt was correct in convicting the accused relying on the evidence of PW.3 becatise she appeared before the court to he a credihle witness, aler voii'e c/lie examination and her testimony before the cotirt. That the evidence of PW.3 was corroborated by the testimony of the mother PW.2 who found P \V.3 cryin after the incidence and the evidence of PW.5 who examined 1 3 W.3 and recorded in the PP.3 his findings which showed that PW.3 was indeed raped. As regards the fact that there was no independent witness called who Sa\\ the appellant raping PW.3, he submitted that sexual intercourse is ordinarily not periormecl in public. So he insisted that the evidence of PW.2 and P.5 and the 1 1, 1`3 was sumcieni corroboration to corroborate the evidenced of PW.3. On the issue of the court convicting the appellant on a single witness, the learned State Attorney referring this court to the case of \'OHANNES MSIGWA V. R. (1990) TLR. 143, he stated that. in terms of Section 143 of the Tanzania EvidenceAct. 1907. no particular number of witnesses is required for the proof of any fact. What is important is the \.vitnesss opportunity to see what he or she claimed to have been and his or her creclibi I it. So the State Attorney argued, the witness despite the fact that she was a minor she appeared to be a credible witness before the trial court. I-Ic further referred this court to section 127 (2) of the Tanzania Evidence Act. 1967 as revised in THE which states that •the evidence of a child of tender age can be taLen if it is proved that the child understands the nature of telling the truthS'. 1-Ic also referred to the case of OMARI Ki.JUU V. R. CRIMLNAL CASE NO.89 of 2005 (unreported) at Dodoma. at page 9 which held that corroboration in offences of rape is long overdue and the evidence of the child was considered. In relation to the appellants submission that the court relied on the caution statement despite his objection, it was the learned State Attorney's submission that it 'as not true as the court did not even bother to refer to the caution statement in the j uclgment. So the caution statement was not the basis of cons iction. The last ground is that the appellant was not medically examined to prove that the sperms found in the vagina of P03 resemble that of the appellant. On tills the lcarn'J State Attorney submitted that. according to section 130 (4) of the Penal code Cap. 16 as for the purposes of amended by the SexLzal Offences Special Provisions Act 1998. proving Sexual Offences the extent of penetration by the penis did not matter. '• hat i important is that PW3 was raped. the act proved by PW.3 and the PF.3. I have carefully gone througil the proceedings of the Io\er court. guided b', the evidence of PW.3. PW.2. P05 and the PF.3 and the law. and I am convinced that the ofience of rape was committed. There is ample evidence of P02 tile nlOther who found her cr\ ing which proved that PW.3 was raped and the evidence of the Medical Doctor PW.5 including the PF.3 which proves the same. iherefore I am satislecl as the trial court that the offence of rape was established beyond all reasonable doubt. The issue arising now is who committed the offence. There was ample evidence byPW3 that it was the appellant who raped her ihe learned trial magistrate had observed 13 W.3 and was satisfied that although he was of tender years (7 or 8 years) she 4 was possessed of sufficient inteliig.ence and understood the duty 01 speaking the truth. That what she told the court was nothing but the truth. The question of corroboration in case of a minor and of a sillude witness, after the enactment of Sexual Offences Special Provisions Act 1998 which amended section I 27 of the Tanzania Evidence Act. 1967 as revised in 2002. by addine section (7). the amendment allowed conviction of rape even on uncorroborated evidence of a child ot tender years as a single witness where the court is satisfied that she is telling nothing but the truth. This was as it was held in case of OMARY KI.J U U cited above. The other issue was of the caution statement. As correctly submitted by the learned State Anornev, the trial Maistrate did not bother himself wjth caution staten tendered and admitted in court in his judgment. Therefore even without the caution statement the appellant would have been convicted. Lastly the appellant complained why he was not medical lv exami ned to determine whether the sperms found with PW.3 resembles his. With due respect to the appellant this complaint has no merit. The P1 7 .3 nowhere indicated that there \erc sperms found the PW.3 vagina or any of his part. What the PP. showed is that the PW.3 s \agi na. lTvmen and the urinal was grievously harmed. It is therefore this court's decision that since the prosccuton had established the case against the appellant beyond all reasonable doubts as shown above and considering the seriousness of the inj ury PW.3 suiftrecI. there is nothing to fault the court befo relation to conviction and sentence. For the reasons stated above the appeal is dismissed in its entirety. It is so ordered. • 1-!. 1N11suya, •J Iii) GE 2/12/2008 l)aie: 2/12/2008 Coram: I-Ion. hi-I. Msuya. .1. Appellant: Present. For Republic: Mr. Njau, State Attorney. C/C: Mrs. Flora Mponzi. 5 2uij ( Order: The jLldgment is delivered on the day Of December. 2008 in the presence ol the Appellant in person and the Lear1d State Attorney Mr. Njau 10 r ihe Republic '/Respondent. I Q U. lIT 1\11suya, / CI J UI) GE 2/I 2/2008 7 , - :- _-_•', j&/( 1/ 6