khalid jumapili vs republic 2009 tzhc 171 19 may 2009

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC)CRIMINAL APPEAL NO.l 15 OF 2008 (Original from Kondoa District Court Criminal Case No. 390 of 2006). KHALIDI JUMAPILI............ APPELLANT Versus THE REPUBLIC................ RESPONDENT Date of last Order -2/4/2009. Date of Judgment -19/5/2009. J U D G M E N T G. J. K. MJEMMAS, J.: In the District Court of Singida, Criminal Case No. 390 of 2006, the appellant Khalid s/o Jumapili was charged with two counts of rape and causing school girl not to attend school. The charge sheet read in part as follows:- 1st Count: Statement of offence: Rape contrary to section 130 (1) (2) (e) and 131 of the Penal Code Cap. 16 Vol. 1 of the Laws, Revised Edition 2002. l PARTICULARS OF OFFENCE That Khalid s/o Jumapili is charged on the 7th day ot December, 2006 at about 19.00hrs at Kindai Area within the Municipality, District and Region of Singida did have carnal knowledge of one Fatuma d/o Ally a girl 11 years of age. 2nd Count STATEMENT OF OFFENCE: CAUSING A SCHOOL GIRL NOT ATTEND SCHOOL REGULARLY C/S 3 OF Education [imposition of penalties of person who marry or impregnaces a school girl) Rules 2003 and Government Notice Number 265 of 5th September, 2003. PARTICULARS OF OFFENCE: That Khalid is charged on the 7th day of December, 2006 at about 19.00hrs at Kindai Area within the Municipality, District and Region of Singida after have carnal knowledge of one Fatuma d/o Ally a girl of 11 years old who was schooling at Sumaye Primary School in standard V a girl has disturbed sicologicaly (sic), to wit he made her not to attend school regularly. The prosecution side summoned four witnesses to prove the case against the appellant. The appellant gave evidence 2 under oath. The trial court/Magistrate found him guilty on the first count of rape and acquitted him on the second count. The appellant was sentenced to serve a term of thjrty years imprisonment and also ordered to compensate the victim Tsh. 200,000/=. The appellant was aggrieved hence the present appeal. Before scrutinizing his complaints or grounds of appeal let me give a brief background of the matter, it was alleged that on 7.12.2006 at around 1900 hours at Kindai PW1 - one Fatuma Ally aged eleven years old was on her way home from school [Madrasa] when she met the appellant. That the appellant asked PW1 to call his girlfriend but she (PW1) refused. Thereafter the appellant dragged PWl to one house and took her to railway lines where he had sexual intercourse with her. She reported the incident to her father who traced the appellant the same night and took him to the Police The appellant has filed a six point petition of appeal and during the hearing of the appeal he added one more ground. The appellant who was unrepresented had nothing to add to elaborate his grounds of appeal. The respondent _ the Republic was represented'by Ms Neema Mwanda, learned State Attorney. 3 Ms Mwanda supported the conviction and sentence imposed on the appellant. Replying to the appellant’s additional ground of appeal she submitted that it was true that the evidence of PW1 who was twelve years old was received and admitted without conducting voire dire examination. She, however, stated that the effect of such omission is to render the evidence as that of unsworn witness. With regard to the first ground of appeal, the learned State Attorney submitted that there is no contradiction in the evidence of PW1 and PW2 as alleged by the appellant. She stated further that the evidence of PW1 and PW2 was corroborated by the evidence of PW3 and that the incident was reported on 7.12. 2006. Responding to the appellant’s second ground of appeal that he was not properly identified, the learned State Attorney - submitted that he was properly identified because PW1 spoke f to the appellant who pulled her to the railway lines and raped her. Ms Mwanda argued further that the victim had sufficient time to observe the appellant and that she immediately reported the incident'to her father. The learned State Attorney , was of the settled mind thqt the appellant was properly identified although the record is silent on the source of light. 4 Ms Mwanda supported the appellant's complaint in ground three of appeal that the doctor who filled the PF3 was not called to testify. She said that the omission offended the provision of section 240 (3) of the Criminal Procedure Act, 1985. She however argued that even if the PF3 is discounted, there is sufficient evidence to sustain the conviction of the appellant. She said there is evidence of the victim - PW1 which is admissible and could sustain conviction of the appellant under section 127 (7) of the Evidence Act. The learned State Attorney supported the appellant's last ground of appeal that he was not given opportunity to call his witnesses. She asked this court to order the case to start de novo. In my humble opinion I think the major issue to be "determined in this appeal is whether the case against the appellant was proved beyond reasonable doubt. As a court of first appeal I am entitled to evaluate the whole evidence and make my own findings of fact. From the record of the case the only direct evidence is that of PW1 who was the victim. Of - course there is evidence of her father (PW2) and that of PW3. As conceded by the learned State Attorney, PW1 was a child of tender age (12 years) and it was necessary for the trial Magistrate to satisfy himself before receiving her 5 evidence that she knew the nature of an oath or she is possessed of sufficient intelligence to justify the reception of her evidence gnd understands the duty of speaking the truth. That could be done only if the trial Magistrate had conducted an investigation otherwise known as ‘voire dire” examination. That was not done. The omission offended the provision of section 127(2) of the Evidence Act. The effect of such omission was stated in the case of Deemay Daati, Hawa Durbai and Nada Daati, Criminal Appeal No. 80 of 1994 (CA) Arusha Registry (unreported) that: “The omission to conduct voire dire examination of a child of tender years bring such evidence to the level of unsworn evidence of child which required corroboration The PF3 could have been used to corroborate the evidence of PW1 that she was raped but as conceded by Ms r Mwanda, learned State Attorney, the trial court did not comply with the mandatory provision of section 240(3) of the Criminal Procedure Act, 1985 in that the Doctor or Medical Office; who examined the victim and filled the PF3 was not called to give evidence neither was the appellant informed of his right to require the doctor;to appear before the court for cross examination. The omission is a serious irregularity. That is the position of the law as expressed in the case of Oscar Mapunda 6 @ Baba Judy V. The Republic, Criminai Appeal No. 182 of 2005 (CA) DSM Registry (unreported). Therefore the PF3 has to be discounted from the record. The next point to consider is whether there is sufficient evidence to uphold the conviction of the appellant after discounting the PF.3. Ms. Mwanda, learned State Attorney submitted that the evidence of PW1 alone is sufficient to sustain conviction under section 127(7) of the Evidence Act. The section provides: S. 127(7)"notwithstanding the preceding provisions of this section, where in Criminal proceedings involving sexual offence the only independent evidence is that of a child of tender years or of a victim of the sexual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years of (sic) as the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict if for reasons to be recorded in the proceedings, the court is satisfied that the child of tender years or the victim of the e * * ' • 0v "sexual offence is telling nothing but the truth [Emphasis mine] 1 I have gone through the proceedings but I did not find recorded reasons by the trial Magistrate to show that he was satisfied that PW1 told nothing but the truth. Even Ms. Mwanda, learned State Attorney conceded that no such reasons were given by the court. She however, stated that she left the matter to be decided by this court. ‘ From the foregoing, and to be specific, the cumulative effect of the failure in this case to conduct voire dire examination before receiving the evidence of PW1 (complainant/victim), and the shortcomings on the PF3, is that there was no evidence which could safely be concluded that the appellant raped PW1 (The complainant). I therefore quash the conviction and set aside the sentence imposed on the appellant and the compensation order. The appellant is to be set free forthwith unless held for some other lawful cause. Order accordingly. 8