20120910 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: BWANA, J.A., MJASIRI, J.A., And MANDIA, J.A.) CRIMINAL APPEAL . NO. I 118 OF 2009 I MAKOYE RELi ................. .-~ ..................................................... APPELLANT VERSUS I THE REPUBLIC .............................. ,.,1,., ••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) I (Nyangarika, J.) th dated 20 day of October, 2011 in I Criminal Appeal No. 20 of 2006 J ----------- JUDGMENT OF:THE COURT 4th & 10th September, 2012 BWANA, J.A.: Before the District Court of BJnda at Bunda the appellant was I charged with the offence of Defilemen~ of an Idiot contrary to section 137 (1) and (2) read together with section) 131 (1) of the Penal Code. It was I claimed before the trial court that on t r 24 February 2003 at about 17.00 hrs at Bukore Village of Bunda District the appellant did unlawfully have carnal knowledge of one Mwamba d/o Kitiringo Wanani who is an idiot. I I . The appellant denied to have committed the offence however, he was 1 convicted of the offence and sentenced to the mandatory minimum sentence of thirty (30) years imprisonment and was ordered to pay the victim a sum of Tshsl00,000/= (one hundred thousand Shs) after completion of his imprisonment. Aggrieved by those findings of the trial court he appealed to the High Court. He was unsuccessful, hence this second appeal. The appellant was unrepresented before us while the respondent Republic was represented by Jacqulline Evarist Mrema, learned State Attorney. The appellant raised five grounds of appeal which may be summarized as follows. 1. That, the court grossly misdirected itself on a point of law by admitting the evidence of PW4 who had not been mentioned as one of the prosecution witnesses in terms of section 289 (1) and (2) of the Criminal Procedure Act, Cap 20. 2 2. The court erred in law in admitting into evidence, the PF3 (Exhibit Pl) without complying with the mandatory provisions of Section 240 (3) of Cap 20. 3. That the court relied on contradictory evidence adduced by PWl, PW2 and PW3 concerning the circumstances under which the appellant was arrested. 4. That the court did not call one Mageni to testify who would be a material witness. 5. Both Courts ''a quo" did not take into consideration the defence case. The respondent Republic did not support the findings of both trial District Court and the first appellate court - the High Court. We would like to make the following observations at this early stage. First, is the purported voire dire: the way it was conducted by the trial magistrate and the consequences arising therefrom. The conduct of voire dire is governed by the provisions of Section 127 (2) of Tanzania Evidence Act (the Act). Since the victim in the instant case was 11 years old, 3 subsection (5) of the Act applies as well. The record before us shows that the trial magistrate conducted a voire dire examination. However, our view is that he did not strictly comply with the requirements of subsection (2) of the Act. That provision requires the court to record in the proceedings its findings as to whether the said child is possessed of sufficient intelligence to justify the reception of his/her evidence and understands the duty of speaking the truth. It is laid down in some decisions of this Court that the recording should show both the questions put by the trial judge/magistrate and the answers thereto before recording the court's assessment (supra) (See Wilberd Kimangano vs Republic, Criminal Appeal No. 235 of 2007; Jackson Mlanga vs Republic, Criminal Appeal No. 200 of 2007; Omary Kurwa vs Republic, Criminal Appeal No. 89 of 2007; Augustina Lyanga v Republic; Criminal Appeal No. 105 of 1991; Leornad Mdemu v Republic, Criminal Appeal No. 81 of 2008 - all unreported). It is therefore settled that those requirements are conditions precedent to receipt of evidence of such a child. Failure to comply with those mandatory requirements of section 127 (2) of the Act, leads to such evidence if taken, to be discarded. That is not all. In this case, after 4 conducting the purported voire dire, the trial magistrate came to the conclusion: "I am satisfied by and doubts that the witness does not possess the intelligence of being· sworn ... " If truly PW2 did not i I possess the intelligence of being sworn, !then her evidence should have not been taken and/or relied upon in grounding a conviction. That evidence should therefore be discarded as we hereby do. Second, the other observation concerns the tendering of the PF3 as Exh B. It is evident from the record that the provisions of Section 240 (3) of the Criminal Procedure Act, Cap 20, were not complied with. It is settled law that where such non-compliance is evident, then the said PF3 should be expunged from the record. We do so. Having discarded the evidence of PW2, the victim of the rape and having expunged the PF3, we are left only with the evidence of two witnesses, namely, Martha Buharata, the mother of PW2 and that of PW3, James Lugadili, a resident of Bukore Village. What is the weight of their evidence? Briefly put, it is on record that upon arriving at the scene of crime, PWl saw her daughter laying on the ground, naked. Her clothes were torn 5 and put apart. The appellant was on "top of her". Upon realising that someone was coming, the appellant ran away from the scene. An alarm was raised and PW3 was one of the first people to arrive at the scene. He participated in the chasing of the appellant until his arrest. At the scene of crime he also saw the victim still laying on the ground, naked and her clothes torn apart. She was bleeding from her "private parts". When questioned by Pw3, the appellant is said to have admitted the offence and asked for pardon as he was drunk. The evidence and credibility of both PW1 and PW3 were not impeached. We see no reason on our part to do so, particularly on this second appeal. The evidence of these two witnesses irresistibly point to the conclusion that PW2 was raped. Proof of penetration is the blood oozing from her vagina. Found naked at the scene of crime and her clothes torn apart is clear evidence of force having been used by the attacker to undress her. At the same time, the appellant was seen running away from the scene of crime. There was no other man in the vicinity immediately before PW1 and PW3 arrived at the scene. Therefore it is apparent that it was the appellant who committed that offence. The evidence of PW1 and PW3 is sufficient and conclusive in proving the offence of rape having been committed by the appellant. 6 We now consider, albeit briefly, another point raised by the appellant, namely, that the evidence of PW4 would, have not been taken since he was not listed as one of the prosecution witnesses, thus contravening the provisions of section 289 (1) of Cap 20. That provision states:- "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. " It suffices to state here that the above provision applies to trials before the High Court only. It does not cover subordinate courts. There is no equivalent provision to cater for trials in the said subordinate courts. Likewise, as was stated by this court in Bandoma Fadhili Makara and Another vs The Republic, Criminal Appeal No, 14 of 2005 (unreported), there is no law which prevented the prosecution in this case before a subordinate court from calling PW4 let alone other witness not listed earlier. 7 .i . Furthermore, the appellant was of the view that a would be key witness, one Mageni, was not called to testify. Again, it suffices to restate here the provisions of Section 143 (1) )the Evidence Act thus:- < I ,I < "Subject to the provisions 01 any other written law, no particular number of witn,esses shall in any case be required for the proof of any fact,✓ (Emphasis provided). All the above considered, we are of the rirm view that this appeal is devoid 1 of merit. Accordingly, we dismiss it in its entirety. th DATED at MWANZA this 10 day of September, 2012. S. J. BWANA 1 JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL W. S. MANDIA I JUSTICE OF APPEAL I certify that this is the true co~~re original. Z.A.~A DEPUTY REGISTRAR ,COURT OF APPEAL 8