20111014 TZHC Dodoma

l IN THE HIGH COURT OF TANZANIA AT DODOMA {APPELLATE JURISDICTION} (DC) CRIMINAL APPEAL NO. 107 OF 2011 (Original Criminal Case No. 319/2001 of Dodoma District Court at Dodoma) 1. ASHA KABOHORA 2. BERNARD MANARA ......................... APPELLANTS Versus THE REPUBLIC ........................... RESPONDENT JUDGMENT 07/11/2011 & 14/11/2011. KWARIKO, J: The 1st appellant herein stood before the trial court with one count of Parties to Offence contrary to section 22 (b) of the Penal Code Cap. 16 of the Laws whereas the 2nd appellant was charged with Rape contrary to section 130 {l) (2) (e) and 131 (1) of the Penal Code Cap. 16 of the Laws as amended by Sexual Offences [Special Provisions] Act · No. 4 of 1998. It was alleged that on the 15th day of December, 2001 at 21.00 hours at Mailimbili area within the Municipality and Region of Dodoma the 1st appellant aided the 2nd appellant to have unlawful carna·1 1 ..... , knowledge of one GRACE MASANZU a girl aged eleven (11) years. The 0 two denied the charge and hence their full trial. The facts of the case which bred this appeal can be recapitulated from the prosecution side as'. follows. On the material night the complainant GRACE MASANZU,= PWl aged twelve years had returned home from an auction with her mother OLIVIA NDOGOE, PW2. The two shared the house with the appellants herein who were their tenants. While PWl was home, her mother was drinking alcohol, the 1st appellant informed her that the 2nd appell~nt was summoning her into their room. PW1 refused the call but the 1s\ appellant insisted and told her that the - 2nd appellant had Mangoes to eat. Once the complainant entered the appellants' room the 1st appella~t held her down while the 2nd appellant removed her underwear and raped her. She felt pains and blood oozed from her vagina.PW! was called by her sibling one KULWA who saw her coming from appellant's room while crying. nd PW1 told her mother, PW2 that she had been raped by the 2 appellant and when the mother inspected her she found blood coming nd from PW1's vagina. Upon inquiry the 1st appellant said it was the 2 appellant who had forced her to summon the girl and raped her. When the appellants were sent to the police one No. WP 368 Sgt LEOSIA interrogated them where they all confessed to the allegations. 2 'I PWl was sent to hospital where Doctor SAIGODI, PW4 examined 0 her and found sperms and bruises in her vagina. A PF3 was admitted in court as exhibit Pl. In her defence the 1st appellant denied the allegations and said that she was sleeping in her room at the material time while her husband had gone to the club. She heard shouting from the complainant's room and overheard them saying her husband had raped the girl. She told them that her husband had gone to the were they summoned him. On his part the 2nd appellant also denied the allegations and supported the 1st appellant's story in relation to where he had been when the allegations against him surfaced. He was called home from the club by one Kulwa. He charged that there was no proof that the girl had been penetrated since PW4 only said saw spermatozoa. He also complained that the girl's father had asked Tshs. 10,000/= from but he had declined. At the end of the trial the court found that the complainant girl had sufficiently identified the appellants as her assailants since they were living in the same house. That, the evidence on record proved that PWl had been raped. They were thus found guilty, convicted in their respective counts and were each sentenced to thirty (30) years imprisonment. The 2nd appellant was also sentenced to a corporal punishment of twelve ( 12) strokes of the cane. 3 Having been dissatisfied with the trial court's decision the 0 appellants filed this appeal each with own several grounds of appeal which have been heard together. The appellant's grounds of appeal in essence complain that the prosecution case against them did not prove their guilt beyond reasonable doubt. When this appeal was called for hearing, the appellants did not have much to say; they only implored this court to allow their appeal. On the other hand, the respondent Republic was represented in this appeal by Mr. Nchimbi learned State Attorney. Mr. Nchimbi supported the appellants' appeal and gave his reasons for his stance. I will refer to Mr. Nchimbi's reasons soon. This court is of the same opinion as both parties that the prosecution evidence at the trial did not prove the appellants' guilty to the standard required in law. The following are reasons for this court's contention. Firstly, as rightly submitted by Mr. Nchimbi learned State Attorney, the evidence by the complainant, PW1 who was said to be aged 11 or 12 years thus a child of tender age, was not received in conformity with the mandatory provisions of the law. Section 127 (2) of the Evidence Act Cap. 6 Revised Edition 2002 says; "Where in any criminal cause or matter a child oF tender age called as a witness does not, in the opinion oF the court, understand the nature of an oath, his evidence may be received though not given upon oath or 4 affirmation, if in the opinion of the court 0 which opinion shall be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence, and understands the duty of speaking the truth" Thus, before the trial court received PWl's evidence it ought to have conducted examination on her to find out her intelligence and whether she understood what was an oath and the duty of speaking the truth. In this case the record shows that the girl told the court that she was twelve (12) years old, did not go to school, her mother was Ndogoi his father was Paul, she was christian and cheating was bad. Thereafter, the girl was sworn and went ahead to testify. This is not what the law wants under the cited provision. The trial court ought to have asked PWl questions and received answers, before giving its opinion whether or not the girl was intelligent enough and understood what was an oath and the duty of speaking the truth. All these ought to have been recorded and this is what is called voir dire examination. The trial court did not indicate what prompted it to have PWl sworn since there were no any opinion to that effect. There was not even evidence to prove PWl's age. This is so because the charge sheet shows that PWl was aged eleven (11) years whereas PWl said when she testified that she was aged twelve (12) years. Her mother, PW2 did not even prove what age her daughter had. Thus, there was no material to prove the preferred charge. 5 Consequently, this court finds that PWl's evidence was received 0 contrary to the mandatory provision of the law and the same ought not to have been acted upon. It is thus discarded (See EMANUEL S/0 MIGESHI@ BADATU V.R Criminal Appeal No. 454 of 2007 Court of Appeal of Tanzania at Tabora, {Unreported}}. Having been discarded PWl's evidence the question to be asked is whether there is any other evidence against the appellants. As rightly submitted by Mr. Nchimbi learned Counsel, there is evidence from PW2, PW3 and PW4 which shows that the girl's vagina had been tampered with. However, even though the girl had been tampered with, the question which follows is who was the assailant? In this respect there is evidence from PW2 who said that one KULWA saw PW1 coming from [· appellants' room while crying. This KULWA was not called to testify hence this evidence remains to be hearsay which evidence is not admissible. Even though it was proved that PW1 was seen coming from appellants' room but evidence as to rape allegations was not there. PW2 also tried to testify that the appellants confessed to these allegations but this evidence is not corroborated by an independent evidence. PWS, VUMILIA PAULO who was appellant's co-tenant said heard the women forcing the girl to tell the truth. Thus, if the girl ever mentioned the appellants it was out of fear of the women's gaze. And if at all the appellants had confessed either at home or at the Police Station as PW3 had tried to show, the court asks itself, why there had not been any confessional statements ready prepared to buttress this 6 .. contention? The answer to this question is that there was no such 0 confessions by the appellants. It is further surprising that no any local area leader was informed about this incident which happened in the local area setting. There ought to have been information reported to the local area leader to fortify these allegations. Instead, the complainants decided to deal with this matter secretly until they reached at the police station. This has adverse effect on the prosecution case. Further, I have found that PWl's PF3 was admitted in court contrary to legal procedure. The record shows that when the prosecution prayed to tender the PF3 the court did not afford the appellants opportunity to say anything before the same was admitted in evidence. Thus, the appellant were denied their right of being heard in this respect. Therefore, the PF3 was not good evidence and it is hereby discarded from the record. Finally, I do not agree with Mr. Nchimbi learned Counsel that the trial court judgment contravened the mandatory provision of the law under section 312 (2) of the Criminal Procedure Act, Cap. 20 Revised Edition 2002. Contrary to what Mr. Nchimbi had contended the trial court specified the offences in which the appellants had been convicted when it said "the 2 accused are convicted in their respective counts as charged'~ 7 Subsequent to the foregone, this court finds that the prosecution 0 case was not proved beyond reasonable doubts against the appellants, their appeal is thus allowed, conviction quashed and sentence is set aside. It is further ordered that the appellants be set at liberty unless their continued incarceration is related to other lawful cause. It is- • ordered accordingly. ~~~ (M. A. KWARIKO) JUDGE 14/11/2011 DELIVERED AT DODOMA 14/11/2011 Appellants: Present. For Respondent: Ms. Nsana State Attorney C/ c· Ms Komba . ,,,,•:: '=·:' ~'".'.:~,.. . .it ... .j_C:'.~>~?,,, ff_:' , ~ ·--- . ((:;. ~i :- , {r4. i., . ~~~O) \:<;;:,:i '··· •:::>,JUDGE '<::~;_:;~; .; u• ;: ;:~ '.i·';;'.tj_ 4 / 10/2011 1 8