20110405 TZCA Tanga2

l IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: MSOFFE, J.A., LUANDA, J.A., And MANDIA, J.A.) CRIMINAL APPEAL NO. 4 OF 2010 YUSUFU BARUANI ................................................ APPELLANT VERSUS THE REPUBLIC .................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tanga) (Teemba, J.) dated the 15th day of December, 2009 in Criminal Appeal No. 22 of 2009 JUDGMENT OF THE COURT 29 March & 6 April, 2011 LUANDA, J.A.: Prior to the fateful day in which Mwanahamisi d/o Julius, a baby girl of 1112. years of age was raped, the husband of Sakina d/o Kunema (PW3) suspected the baby to have been carnally known as her private parts had widened. Her husband told her to make a follow up. PW3 and her husband stay in the same house with the appellant who was married to Sikuzani d/o . • Anania (PWl) the mother of the baby and so the appellant was the step father of the child. The appellant and PWl stayed together. Indeed on 16/5/2006 · at around 4.00 p.m., PW3 passed near the window of the appellant's room. She saw the appellant lying on the bed covered with a bed sheet and was holding and kissing the baby. She suspected something sinister. She alerted people around. One among them was Fatuma d/o Mwanahamisi (PW2). They knocked the door and entered the appellant's room. They took the child from the appellant. On checking her private parts, they saw sperms coming out. When the appellant was asked, at first he kept silent. Later he admitted to have raped the child and asked for money so that he could go to his home place. The mother of the child Sikuzani d/o Anania (PWl), who was not around, was called. The child was sent to police. And on the same day the child was also sent to hospital where she was examined. The medical officer one Sofia d/o Abdallah (PW4) not only saw that the vagina was reddish but also saw spermatozoa. PW4 was of the opinion that the child was raped and tendered the report as an exhibit. The appellant was then 2 charged with rape contrary to sections 130 (2) (e) and 131 (3) of the Penal Code, Cap 16. In his defence the appellant denied to have committed the offence. He however, admitted to hold the child on the fateful day and then the child was taken by his land lady, Mama Suma who later returned to him. While talking with Mama Suma, a brother of Mama Suma one Mbamba arrived and asked him why he raped the child. They quarreled and eventually the matter was reported to police. After a full trial, the trial court convicted him and he was sentenced to 30 years imprisonment. Aggrieved by the finding of the trial court, the appellant unsuccessfully appealed to the High Court. The High Court set aside the sentence of 30 years imprisonment and imposed a sentence of life imprisonment. Still dissatisfied, the appellant has come to this Court on appeal. 3 In his memorandum of appeal, the appellant has raised three grounds. One, the preliminary hearing was not properly conducted as the memorandum of matters not in dispute was not read over and explained to the appellant as dictated by section 192 of the Criminal Procedure Act, Cap 20. Two, that section 289 of the Criminal Procedure Act, Cap 20. (henceforth the Act) was violated in that the prosecution side added one more witness namely Sikuzani d/o Anania without informing or giving notice to the appellant. Three, the trial Court was wrong to ground a conviction without the appearance of the victim of rape. In this appeal, the appellant appeared in person and unpresented; whereas the respondent/Republic was represented by Ms Pendo Makanda learned State Attorney. Ms Makanda supported the conviction and sentence of life imprisonment. She urged us to dismiss the appeal. The appellant is protesting his innocence and prayed that his appeal be allowed. Arguing· the first ground of appeal, Ms Makanda submitted that the preliminary hearing was properly conducted. She referred us to page 6 of 4 the record. Page 6 of the record shows very clearly that the preliminary hearing was conducted and the appellant did not dispute two facts namely, (i) his name and personal particulars contained in the charge sheet and (ii) the date the appellant was charged with the offence. However, the record does not show that the same were explained and read over to him. Really those two facts, were not crucial to the offence of rape upon which the appellant was charged. To put it differently, none of them constitute one of the ingredients of the offence of rape. In any case, the appellant did not say in what way he was prejudiced or had an unfair trial. We are of the settled view that failure to read and explain those two facts which were not in dispute, in this case was not fatal to vitiate the entire proceedings. This ground has not merit. Next is non compliance with S.289 of the CPA. The appellant complained that Sikuzani d/o Anania (PW1), the mother of the child, was not listed as one of the witnesses to testify during the conduct of the preliminary hearing. So her evidence should be expunged from the record. Ms. Makanda submitted that that provision is applicable in the High Court and not to subordinate courts. We entirely agree with her. Section falls under Part VIII - Procedure in trials before the High Court. 5 S. 289 of the CPA reads. 289 {l} No witness whose statement or substance of evidence was not read at committal proceedings shall be called by the prosecution at the trial unless the prosecution has given a reasonable notice in writing to the accused person or his advocate of the intention to call such witness. (2) The notice shall state the name and address of the witness and the substance of the evidence which he intends to give. (3) N/A. The appellant appears to have failed to distinguish between a preliminary hearing and a preliminary inquiry which is a committal proceedings. The two are not one and the same thing. Preliminary hearing is conducted by the trial court itself in ascertaining matters which are not in dispute for purposes of accelerating trial and disposal of cases. Preliminary 6 inquiry ( committal proceedings) on the other hand is conducted by subordinate courts to the High Court, save primary courts for the purposes, inter alia, of enabling the accused person to know the case he is going to face in the High Court. In this instant case, the appellant is complaining that PW1 was not one of the witnesses listed after the conduct of the preliminary hearing. So she ought not to have been summoned and testified. We have said that 5.289 of the CPA does not apply in subordinate courts. Lastly, is the appellant's complaint about non appearance of the victim of rape in court. Ms Makanda submitted that it was not necessary as the evidence is strong. First, we wish to point out that ordinarily the best evidence of rape comes from the victim of rape. However, that does not mean that that is the only evidence to establish the offence of rape. Depending on the circumstances of each case, there are times where the evidence may not necessarily come from the victim of rape and yet the same may as we!I be sufficient to ground a conviction. 7 In this case the victim of rape was 1112. years of age. She could hardly talk to explain what had happened. But there is clear evidence on record which was found by both lower courts to be true that the baby was raped. That is the evidence of PW4 - the medical officer. The vagina was reddish and it had spermatozoa. But the appellant was the one who was holding the child when taken away from him and when sperms were coming out from her private parts. PW2 and PW3 were positive when they were cross - examined by the appellant whether what they had seen were sperms. PW3 said:- ''/ am adult, so clearly knows sperms. The people surrounded. I have known penis and fingers cannot provide sperm. " And PW3 said, we quote:- "The sperms looked like heavy jelly (Makamasi). You agreed to have raped the child." 8 .It is also in the evidence in chief of PW2 which was not challenged that the appellant admitted to have raped the child. The above evidence is strong enough to ground a conviction notwithstanding the non appearance of the / child who could not speak. In the event, and for the foregoing reasons, we find both conviction and sentence deserving. We dismiss the appeal in its entirety. DATED at TANGA this 5th day of April, 2011 J. H. MSOFFE JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL /....-------·,:,0 \ ( ' \ ( · h1 is is a true copy of the original. ,,s.. ~\...'I" ~~L~ _,...=C:::::::~~¾~~o(k~S- E. Y. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL 9