20090601 TZHC Mbeya2

IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION (Mbeya Registry) DC. CRIMINAL APPEAL NO.60 OF 2008 (Original Criminal Case No. 170 of 2007 of Mbeya District Court) ANDEMBWISYE KAYANGE ... ... APPLICANT VERSUS THE REPUBLIC ... ... ... RESPONDENT JUDGMENT 14.4. 09 & 1.6.09 MSUYA. J. The Appellant one ANDEMBWISYE KAVANGE was convicted before the District Court of Mbeya at Mbeya for the offence of Rape contrary to section 130 and 131 of the Penal Code Cap. 16. Vol. 1 of the Laws as amended by Act No. 4 of 1998 of teSexual Offences Special Provisions Act He was subsequently sentenced to 30 years imprisonment and twelve (12) strokes. Aggrieved by the decision he preferred this appeal. He lodged six grounds of appeal as follows:- He denied to have committed the offence. The trial Magistrate erred in law and fact to rely on the evidence of the prosecutrix witnesses who failed to prove the offence against appellant to the standard required by law. That according to the evidence there was no independent witness who saw the appellant committing the said offence u/s. 62 (1)(a) of T.E.A. 1967 the failure of eye witness creates doubt to the whole case. That the learned trial Magistrate e erred in law and in fact to rely on evidence of PW.2 who was telling the hearsay evidence which he had heard from one person known as Mwaswale (typed proceedings page 10). That there is a piece of evidence which shows that the students of Songwe School notified the head teacher (Mwaswale) about the issue. No explanation was given from the prosecution as to why they failed to call Mwaswale or Jane and Beatrice to prove that point (they saw the victim coming out of the appeJlants house (typed proceedings page 9). 4. That the learned trial Magistrate erred in law and fact to rely on the evidence of PP.3 in the absence of qualified Doctor who was reliable to support the complainant story: In Sungu Suba v . R. (1971) HCI) 705 it was held "Hoever w in certain instances expert opinion may become indispensable". In Jumu Choroko v. R. App.23/2000 (CAT - DSM) (Unreported) it was held - "Section 240 (3) of CPA/1985. The court shall inform the accused of his right to require the person who made the report to be summoned according to the provision of this section". Therefore the absence of cogent evidence of the Doctor or a nurse who examined the victim the court can admit a false PP.3. 5. That according to the evidence on record, when the victim was examined lie was found that hymen was not intact and she was suffering from sexual transmitted deceased (Kisonono) gonorrhea. That the results of the Medical Examination do not link the appellant with the alleged offence. That there is no evidence to prove that the appellant was suffering from gonorrhea to convince the trial court that the victim was infected by the appellant. That why was the victims hymen not intact; to prove the offence I)NA report was required. 6. That the trial Magistrate did not take into consideration the realmeaning of Rape and its ingredients. Rape: the man had sexual intercourse with the woman and for this slightest penetration of the vagina by the penis suffices. That the case was poOrly investigated and prosecuted because the ingredients of rape were not 7 proved. The evidence was also not corroborated and only one witness was relied upon. The evidence as recorded in the District Court was that Eda James and 14 years was on the day of the incidence coming from school at about 12.00 p.m. going home. On her way she said she met the appellant who sent her for drinking water. As she went to get drinking water for the appellant the appellant caught her took hr to her bed, undressed her school uniforms and underpants undraped her and also had unnatural offence with her. After she was through she left, on her way home she met wither friends namely Jane and Beatrice also coming from school. The friends asked her about what she was doing at the appellant's house she told them that she was fetching water for him but she was in great pain. The friends reported the matter to the head teacher who reported the matler to PW. I s father and the matter was reported to Police. At police they were given PF.3 and PW.1 was taken to J\4eta Hospital for Medical Examination. PW.2 James Robert the father of PW. I, explained how the matter was reported to him by Mwashala. the PW.I s teacher. 1-le took her dauhler PW.I to hospital and on medical examination she was found to have been raped and was suffering from STDs "Kisonono". The PF. D3 which indicated that PW. I was suffering from "Kisonono' was admitted in court and a medical chit showing that it was history of rape. On the other hand the appellant totally denied to have committed the offence. 1-Ic said he was only surprised when he was arrested while he was at the "pombe" shop local brew shop at Songwe Soweto area. He was taken to Village Executive Officer (VEO) at about 19.00 hrs. He met PW.I and PW.2 and denied to have raped PW. I. 3 In convicting the appellant the trial Magistrate, after summarizing the evidence, he convicted the appellant without giving reasons for conviction. What are the contents of judgment? In terms of Section 312 of the Criminal Procedure Act, Cap. 20 R.E. 2002:- "Every judgment under the provisions of Section 311 shall, except as otherwise expressly provided by this Act be written by ............................ presiding judge or Magistrate in the language of the court and shall contain the points for determination, the decision thereon, and the reasons for the decision In the judgment before us there are no points for determination, no decision thereon or reasons for the decision given. Instead of it being contained n the judgment it appears to be contained in the sentence. The procedure which is not proper. The sentence which is not unknown according to the lavs of Tanzania. One is either to specify the tenure of imprisonment or sentence one to life imprisonment. 11 is not proper to sentence one to life imprisonment (30) years. Coming to the appeal before us, the appellant came up with six grounds of appeal but can be summarized to one. That is the prosecution have not discharged their duty of proving theij case beyond all reasonable doubt for lack of corroboration of PW.l 's testimony. In support of his grounds of appeal the appellant submitted that he was not taken to hospital for medical examination to prove that he is the one who raped the PW. I That the prosecution informed the court that they had other witnesses to call but the were not called. 4 In reply the learned State Attorney Ms. Catherine did not support the appeal. She submitted that there was circumstantial evidence of the father - PW.2 and the PF.3 tendered in court as exhibit, to prove that the PW.l was raped. Also that when it was tendered in court the appellant did not object. She further argued that the issue of the number of witness to prove the case is not necessary for proof of fact. Also that it was not necessary for the, appellant to be taken to hospital for medical examination. Having considered the submissions of the appellant and the Respondent and the proceeding and judgment the issue is whether the prosecution did prove the case against the accused beyond all reasonable doubt and as such the conviction was proper in absence of corroboration. From the record the only witness who gave evidence pointing at the appellant is only one namely PW.] Eddah James a girl aged 14 years. That according to law a child aged 14 is ofthe tender age. In terms of section 127 (2) of the Evidence Act, 1967, it is clear that if a child of tender years, does not understand the nature of an oath, her evidence may nevertheless be received without oath or affirmation if she is possessed of sufficient intelligence and she understand the duty of speaking the truth. The trial Magistrate must record that such investigation has been made to establish whether the conditions are met. See the case of DHAHIRI ALLY V. R. (1989) T.L.R. 27. In the case before us this is how the "voire dire" examination was taken:- "P\V.1: I am Eda James; with 14 years, I am a student t Songwe Primary School. Court: Do you know the truth and lying? 5 ' PVV.1 : Yes I will tell the truth. Court: Will you tell the truth before court of law for oath or not. 11 : I will take oaths. (Sgd.) P.S. Ralala, RM 1/4/2008. Court: I have conducted the "voire dire" test and finding that the victim can take oath to her evidence and is capable of telling the court the truth. (Sgd.) P.S. Kalala, R1'l 1/4/2008" The questions asked by the trial Magistrate. cannot show if the child is possessed of sufficient intelligence and she understands the duty of speaking, the truth. That being the case it is as good as PW. I has given on unsworn statement which required corroboration. The other issue is that this is one of the cases which is very poorly prosecuted. In the preliminary hearing the prosecution informed the court that they had seven (7) witnesses. Only two witnesses were called. Very important witnesses were not called. There was also the PF.3 of the appellant as one of the exhibits to be tendered it was also not tendered. The appellant's PF.3 was very important to prove that the STD suffered by PW.J was transmitted to her by the appellant. This is very unfortunate because justice cannot be done or be seen to be done in this manner. The prosecutions have to be serious when prosecuting their cases. In the final analysis the appeal is allowed. Conviction is quashed and sentence set aside. The accused should be released immediately unless helq for lawful reasons. Uk-MSUYA JUDGE 1/6/2009 6 -4 '( ) Right of Appeal is explained. U.H. MSUYA, JUDGE 1/6/2009 Date: 01 .02 .09 Coram: 1-Ion. U.H. Jvlsuya. J. Appellant: Present. For the Republic Mr. Faraja Godfrey - State Attorney. CC: Mrs. Flora Mponzi. Order: Ruling is delivered on the ]st day of June. 2009. U.H. MSIJYA, JUDGE 1/6/2009 '1