20090709 TZCA Tanga3

THE COURT OF APPEAL OF TANZANIA ATTANGA {CORAM: RAMADHANI, C.J; MSOFFE, J.A. And MANDIA, J.A.) CRIMINAL APPEAL NO. 18: OF 2009 GOD DANIEL ... . APPELLANT VERSUS REPUBLIC ... RESPONDENT {An Appeal from the Decision of the High Court of Tanzania, at Tanga) . - (Teemba, J.) th dated the 5 day of December, 2008 1n Criminal Appeal No. 45 of 2005 ....... ... JUDGMENT OF THE COURT . i 2 &. 9 July 2009 RAMADHANI, C. J.: At about 1000 hours on 18th January, 2005, the complainant, Magreth d/o Maiko (PW 2), a girl of eight years old, was going· to school when a person, whom she later came to identify as the appellant, God s/o Daniel, held her and took her into a bush where he raped her. She was warned not to tell any body what had happened to her or else she would be killed. She proceeded to school and kept mum. Happy Ndahevya, (PW 3), a girl of ten years, when they were returning home from school, noticed· that her friend, PW 2, had difficulties in walking. Upon enquiries PW 2 told her of the ordeal. That difficulty in walking was also noticed by Anjelina Stephen (PW 1), an aunt and guardian of PW 2 who examined her private parts I' r 2 I I i > and saw that she had been rc;Jvished. PW l took PW 2 to Selina Sura 'it,,, • •.;: :r 4 (PW 5) and PW 1 told them that she could ·identify her ravisher. The incident was reported to the Jeshi la Kujenga Taifa Camp where all persons involved in grazing animals w.ere rounded up and presented before PW 2 to identify her ravisher. The appellant was picked. Four days later, on 22/01/03, the matter was reported to the Kabuku Police Station and. steps were taken to prosecute the app~llant. The District Court of ·Handeni was . satisfied with the narrated evidence, convicted the appe!lant as charged and sentenced him to an imprisonment term of thirty years. His appeal was dismissed by the High Court in Tanga (TEEMBA, J.) This is his second appeal. The appellant was present in person while the respondent/Republic was represented by Mr. Jasson Kaishozi, the learned State Attorney who did not support the conviction. We agree with Mr. Kaishozi that PF 3 which was admitted as Exh. Pl should not be relied upon because the provisions of section 240(3) of the Criminal Procedure Act w~re violated. That subsection requires a · court to jnform an accused person of his/her right to call the maker of a medical report to come to court for cross-examination. Since that was not done, we disregard it. Ir 3 ' - I , I ~ l ,i ,-:...,.,, 1~- However, even without Exh Pl, there is the evidence of PWs 1 and 5, I elderly women who examined PW l's private parts and arrived at the I finding that she had had sexual intercou'rse. Since PW 2 was only eight years old, under s. 130(2)(e) of the Penal Code, she was raped. The issue is: Who did it? PW 2 broke the news to her friend PY'/ 3 Vf hO stated: "She told me that one man had raped her but she was not familiar with him ... I told Maggy's mother of that Maggy claimed to be raped (sic) by a grazing-man." The issue of a grazing-man came out I of .the blues. It had not been I mentioned previously. As a result qf that all cowboys were rounded up by the JKT and a so-called identification parade was mounted. ' We agree with Mr. Kaishozi that. the person who conducted the parade should have been produced as a·· witness. As it is, we do not know what actually happened. Peter Francis Mngazija (PW 6) gives a hint of what transpired: I was the first to be there,, two ,girls (young ones) were there, they were asked as to whether I was the one, they denied. The two girls were asked about the accused, one of them. (the younger one) identified the accused. One thing is clear: The exercise was not the sort of identification • I parades known in law as provided for in the Police General Orders ' and the many court decisions. But those procedures are for the safe ' I • 4 guarding of the rights of the-would-be accused persons. It is palpably "',, . clear to us that there were no such safeguards here. After the appellant was identified the ...matter was reported to the Police Post, Kabuku, four days later, that is, on 22/01/2003. We do not know where the appellant was in those four days and what happened to him. DC Evaris~ PW 7 who received the report and the appellant in re-examination answered the prosecutor that "The accused was brought to the. Police by JKT Officers". So, presumably in all those four days the appellant was in JKT custody! It is a matter of great shame that PW 7, a Police Officer, is an unabashed liar. He stated in court that: "I reported this at JKT Mgambo, the incharge of that area called all the grazing-men,. accused was identified by Margareth among his colleagues." He made it appear as if he was the one who asked JKT to conduct identification while everything was done without his knowledge and he was just presented with the results. Admittedly, the appellant decided to remain silent at the trial. We are also aware thats. 231(3) of the Criminal Procedure Act provides: (3) If the accused,· after he has been informed in terms of subsection (1), elects to remain silent the court shall be entitled .to draw an adverse inference against him and the court as well as the prosecution shall be permitted to comment on the failure by the accused to give evidence. . J1 ( 5 f I\• ,, u We are also cognizant of the fact that both lower courts did not draw adverse inference and did not give any explanation. It is also possible that the appellant's silence influenced the ·attitude of the two lower courts in the evaluation of the evidence as a whole. However, having gone through the evidence ahd especially the salient parts as to the whereabouts of the appellant in the four days, we are a shade unsure whether it is safe to make an adverse inference. We are of the decided opinion that the identification of the appellant leaves much to be desired a_nd we, th~!efore, agree with both the appellant and Mr. Kaishozi that the conviction cannot be sustained. We quash the conviction,. set aside the sentence and order the immediate release of the appellant tmless he is otherwise lawfully held. It is so ordered. The appeal is allowed. DATED in TANGA, this 09 th day of July~ 2009. A. S. L. RAMADHANI CHIEF JUSTICE J. H. MSOFFE JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I certify that this is a true py of the original.