20090602 TZHC Mbeya2

IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION (Mbeya Registry) DC CRIMINAL APPEAL NO. 36 OF 2008 (Original Chunya District Court Criminal No.30 of 2007) GEOFREY HANK ... ... ... APPELLANT \'ERSUS THE REPUBLIC ... ... ... RESPONDENT J(JI)GMENT 27.409 & 2.6.09 MSUYA, J. The appellant Geoffrey Hank was convicted for the offence of Rape contrary to section 130 and 131 of the Penal Code Cal). 16. Vol. 1 of the Laws as amended by Section 5 and 6 of the Sexual Offences Special Provisions Act No. 4 of 1998. He was subsequently sentenced to life imprisonment. As he was aggrieved by the decision he decided to appeal. The brief facts of the case were that on the 2711) day of March. 2007 at about 11.30 a.m. at Chalangwa Village within Chunya District in Mbeya Region, the appellant raped PW.1 Huruma Asangalwisye, Nuru Abdalla, PW.2; PW.3. Zainabu Sailon and PW.4 Theresia Jackson. That when they were on their way from sciooI. the appellant who was walking behind them holding a matchet and a knife, called them deceiving then that, their teacher was calling them. When they turned back, the teacher was not there. The appellant ordered them to follow him to the bush or else he will slaughter them if they resist. They followed the orders and followed him. In the bush the appellant raped them one afier another starting with PW.2 Nuru, then PW.4 Teresia, then 2W.] Huruma and lastly PW.3 Zainabu. After the incidence PW.I Huruma was heavily bleeding and the rest were not. The appellant advised PW. I to tell her parents that she was injured by grass. Fortunately PW.5 arrived at the scene, found that PW.1 could not walk because of the injuries and had blood stains, she ran home to inform PW.7 the grandmother, who carried her home bathed her and went to report to the village office. where PW.6 issued arrest warrant. The appellant was arrested and the matter was reported to police. PW. I was issued with PF.3 for medical examination. Where it was shown that PW. I s hymen was ruptured and was bleeding from the vagina. In his defence the appellant refuted to have committed the offence. He gave a long story showing that it was out of vengeance that he was arrested for this offence because of a case he was convicted for three (3) years where PW.7 Eda and PW.] Huruma were witnesses. In that case he was alleged to have stolen gold. In convicting the appellant the trial Magistrate referring to section 127 (2) of the TEA 1967 was convinced that the children who testified in court were truthful. that their evidence corroborated one another s evidence, that the offence was committed at daylight and that the witnesses knew the appellant well as they resided in the same village. As such the case was proved against the accused beyond all reasonable doubt. It is because of the above decision the appellant appealed. His grounds of appeal are as follows:- • That the trial magistrate erred in law and fact in convicting the appellant for the offence which was not proved. That it was not possible to carnally know four ladies at the same time. That the trial Magistrate did not conduct voire dire test before taking the evidence of PW.1. PW.2, PW.3. PW.4 and 1 3 W.5 who were children of tender age. Reference was made to the case of DHAHJRJ ALLY V. R. (1989) TLR.27. That the trial Magistrate erred in law and fact for convicting the appellant based on the PF.3 in the absence of a qualified Medical Doctor who could support the complainant's stor. Reference was made to the cases of SUNG U SUBA V.R. (1971) HCD. NO. 705 and JUMU CHOROKOV.R. APP. 23/2000 (Unreported). 7 ) * va ) 4. That the offence was committed on the 27111 March. 2007 why was he not taken to the village Chairman for his explanation. The appeal was argued by written submission by the order of this court. The learned State Attorney Ms. Msofe represented the Respondent/republic. She did not support the conviction on two main grounds. One that she concurred with the appellant that the voire dire test was wrongly conducted. That the trial magistrate did not comply with section 127 1(2) of TEA, 1967 which she quoted and she also referred the court to the case of I)HAHIRI ALLY V. R. (1989 TLR. NO. 27 on the issue. Referring the court to page 6of the pi'oceedings she said when the trial Magistrate was recording the evidence of PW. I Huruma Asangalwisye who was 7 years he recorded as follows:- the witness is a child of tender years therefore a i'oire dire examination is conducted in order to find out whether or not she knows the nature of an oath" She argued further that the record did not show that there \vas any investigation as to whether that particular child is possessed of sufficient intelligence and understands the duty of speaking the truth or not. She was therefore of the opinion the voire dii'e test was wrongly conducted. and it is an irregularity which is fatal to the proceedings. On this issue of whether it was proper for the trial Magistrate to convict on the evidence of a child of tender age without a proper voiie dire examination, I agree with the learned State Attorney. In a situation where a voire dire examination is not properly conducted. the evidence of a child of tender age can be taken as an unsworn statement. An unsworn statement requires evidence of an independent witness to corroborate that evidence. According to the record all the witnesses alleged to have witnessed the commission of the offence were children of tender age whose testimony was the same, and according to the manner their evidence was taken it required corroboration. In view of the fact that the evidence lacked corroboration of an independent witness to that effect, I find that it was not proper for the appellant to be convicted, based on the evidence on record. The other issue raised by the learned Stale Attorney was in relation to section 240 (3) of the Criminal Procedure Act, Cap. 20 R.E. 2002 which provides that:- "When a report referred to in this section is received in evidence the court may if it thinks fit, and shall if so requested by the able for cross-examination the person who made accrued or his advocate, summon and examine or make available the report; and the court shall inform the accused of his right to require the person who made the report to be summoned in accordance with the provisions of this subsection". The learned State attorney argued that the provision is mandatory and as such the trial court had a duty to inform the appellant of his right to require the person who made the report to be summoned. So she submitted that because this important legal requirement is not complied with she does not support the conviction and sentence. On the issue of the compliance with Section 240 (3) of the Criminal procedure Act, Cap.20 R.E. 2002, 1 concur with the learned State Attorney that it is mandatory. The failure for the trial magistrate to inform the appellant of his right is an irregularity. This is because justice should not be only done but should been seen to be done even ill the conduct of the proceedings. It is the duty of the court to ex])lain to a party to a case all his legal rights as provided for under the law, as in this case. In view of the above irregularities I nullify the proceedings and Judgment and order tile case to be heard de novo before another Magistrate. Conviction is quashed and sentence set aside. The accused should be released unless held af other lawful reason. .1-1. MSUYA. JUDGE 2/6/2009 91 Th Right of Appeal explained. U.H. MSUYA, JUDGE 2/6/2009 Date: 2.6.09 Coram: Hon. U.H. Msuya, Judge. Appellant: Present, For the Republic: Miss Msofe, State Attorney. CC: Mrs. Flora Mponzi/Mr. Hassari. Order: the judgment is delivered on the 2 nd day of June, 2009 in the presence of the Appellant in person and the learned State Attorney Ms. Msofe. U.H. MSUYA, JUDGE 2/6/2009 5