20120813 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA, AT DAR ES SALAAM, CRIMINAL APPEAL NO; 134· OF 2010 (Originating from·Criminal Case no; 160 of 2009 in the District Court of Kilosa District, at Kilosa). · FRANCIS S/O SHIRIMA .................... APPELLANT Versus; REPUBLIC ......................................... ...RESPONDENT JUDGEMENT; 30/08/2011 & 13/08/2012. Utamwa, J. The appellant in this first appeal, Francis s/o Shirima challenges the decision of the District Court ofKilosa District, at Kilosa (trial court) dated 28/9/2010, which said decision convicted him of the offence of rape c/s 130 (1) and (2) (e) of the Penal Code, (Cap. 16, R. E. 2002). The appellant was eventually sentenced to life imprisonment and ordered to compensate the victim with Tanzanian Shillings (Ths.) 1000, 000/= (One Million only). He is now appealing against that decision. th It was alleged before the trial court that the appellant, on the 30 day of July 2009, at or about 18; 45 hrs, at Msowero village within Kilosa District of Morogoro Region, did have unlawful sexual intercourse with one Elizabeth Mtei, a girl of 3 years of age. Upon the appellant pleading not guilty the prosecution invited 4 witnesses whose eviden~e was to the following effect; that on the material date, time and place PW. 1 (Fairness Damian), at the child's home saw the appellant holding the victim child Page 1 of 6 I-·J while his trousers were under his knees. The child's underpants were also off her knees and she was crying. Being suspicious of the appellant's acts she pulled off the child from him, she then saw the appell~t's penis with pulse. She sent a person to inform the child's parents who were not at home. When the child's mother (Pacelina Kadipodi, PW. 2) came home, PW. 1 narrated the story to her, and when the child was inspected by other persons she was found with semen around her private parts. PW. 2 supported the testimony by PW. 1 and added that she had left the appellant at her home before the event, and after the event some worn.en inspected the child and found her not injured, but with some semen on her private parts. The child was examined in a Health Centre, a PF. 3 was filled. PW. 3 (Kalipodi Joachim) evidence was similar to that of PW. 2. Again, PW. 4 (D/CLP. Athuman) testified that he recorded the cautioned statement of the accused in which the accused confessed to have raped the child. The Doctor who completed the PF. 3 did not testify following the averment that he died before he could do so. In his defence the appellant just denied to have committed the offence. He also argued that he did not witness the medical examination of the child which was done in a private clinic. He further complained that the Doctor who completed the PF. 3 did not testify and that the PW. 2 evidence was mere lies. The trial court found the appellant guilty basing of the PW. 1-3 evidence and the confession. It thus sentenced him accordingly, hence this appeal. The appellant preferred 8 grounds of appeal in a layman's language, which said grounds, can conveniently boil down to 3 as follows; 1. That the trial court erred in law in deciding the case against the weight of evidence. 2. That the trial court erred in law in deciding the case without considering the defence evidence. 3. That the trial court erred in not giving him a fair triaL Page 2 of 6 ,. For these grounds the appellant prayed this court to set aside the conviction and sentence and let him free. During the hearing of the appeal the appellant had nothing to add to his memorandum of appeal: The respondent Republic, being represented by Mr. Mwakanyamale, learned State Attorney supported the ,:appeal on the general reasons as will be discussed in testing the gr~~11ds of appeal. Despite the fact that the respondent supports this appeal, I must test the merits of the grounds of appeal for; it is the duty of this court, being a court of law and of records, to dispense criminal justice according to law and not according to the agreement of the parties. I will now examine the three grounds of appeal one after another. As to the first modified ground of appeal the question to be decided is whether or not the trial court erred in law in deciding the case against the weight of evidence. The appellant during the hearing of the appeal did not submit the reasons for this complaint. In supporting the appeal the learned State Attorney for the respondent argued during the hearing of the appeal that, according to the evidence by PW. 2 the child was notfound with any injuries except that she was found with semen only. He also contended that there was no any penetration however slight, and the trial court did not show any reason for convicting the appellant. I will not agree with the learned State Attorney that the trial court did not give any reason in convicting the appellant. The trial court was explicit (at page 4 of the typed judgment) that it convicted the appellant on the basis of ·the evidence adduced before it by PW. 1, 2, 3 and the confession by the appellant (cautioned statement) which was admitted as exhibit P.2 (see page 14 of the typed proceedings). I will thus concentrate with this evidence in deciding the issue posed above. For an offence of rape to be established under S. 130 {1) and (2) (e) of Cap. 16 (2) it must be proved first that the accused (a mate person) had sexual intercourse with a girl or a woman (the victim of the rape). According to S. 2 of the Sexual Offences Special Provisions Act, (Cap. 101 R. E. 2002) sexual intercourse is deemed to be complete upon proof of Page 3 of 6 penetration (of the penis) only. I agree with the learned cqunsel that the evidence relied upon by the trial court did not prove any p:ehetration of the accused person's penis into the victim child's genital parts. The purported confession by the accused (cautioned statement) was erroneously admitted in evidence because, it was objected by the appellant and admitted without any prior inquiry on whether or not it was voluntarily made (see page 13- 14 of the typed proceedings). The law requires that,_ where the voluntariness of a confession (cautioned statement) is disputed by the accused before a subordinate court, an inquiry must be conducted before the same is admitted in evidence. That inquiry is equated to a Trial Within Trial before this Court. The Court of Appeal of Tanzania (CAT) once held that it is improper to admit a disputed confession in evidence without first conducting a Trial Within Trial to verify its voluntariness,. see Robinson Mwanjisi and three others v. Republic (2003] TLR. 218. Again, the evidence of PW. 2 and 3 was helpless because they were not at the scene of crime at the material time. Moreover, they did not give evidence that they were among those who inspected the child soon after the event. PW. 1 also did not testify that there was penetration. She did not also testify that she inspected the child soon after the event. She only said th~t some other people inspected her and found semen around her genital parts. _However, persons who inspected the child did not testify in court. The averment that the child had semen around her private parts was thus a hearsay which is not admissible in evidence and cannot base any conviction, see S. 62 (1) of the Evidence Act, Cap. 6 R. E. 2002 and the case of Jones Ndunguru v. Republic 1984 TLR 284 (HC). Penetration was thus nofproved by the evidence relied upon by the trial court to convict the appellant. The issue posed above is thus positively answered to the effect that the trial court erred in law in deciding the case against the weight of evidence. The first ground of appeal is thus upheld. As to the second ground of appeal the task before we is to decide whether or not the trial court erred in law in deciding the case without considering the defence evidence. Both parties did not offer arguments in Page 4 of 6 ' this respect. I however, agree that the trial court did not consider the appellant's evidence and decide why it could not believe it. The effect of this omission is in law serious and vitiated the conviction, see. ~ussein ldd and another v. Republic [1986] TLR 166 (CAT)·•:.and Bisareri Omurenyt v. Uganda (1966) E.A.170 (U). The second issue is also positively determined and the second improvised ground of appeal is acc·ordingly upheld. Having upheld the renovated first and second grounds of appeal, I feel not legally obliged to consider the adjusted third ground of appeal because the preceding two grounds are capable of d..i~posing of the entire appeal; otherwise I will be beating a dead horse. As a post script, I must make a remark here. I would have thought of convicting the appellant of the offence of Attempted Rape or of Grave Sexual Abuse under Ss. 132 and 138C of Cap. 16 respectively basing on the PW. 1 evidence only. I would have done so by virtue .of the powers vested upon courts for making alternative convictions under S; 300 (1), (2) and 301 of the Criminal Procedure Act, 1985 (Cap. 20, R. E. 2002). However, I cannot take that course for the following grounds; according to the judgment of the trial court (at page 1 of the typed version), PW. 1 testified that she saw the appellant holding the victim child on his lap. This fact is also depicted in the typed proceedings of the lower c9urt (page 10) .. However, according to the original proceedings (handwritten) of the trial court, PW. 1 was recorded (on 23/06/2010) saying that she saw the accused holding the child; she did not describe how the appellant was holding the child. It is not therefore clear, as to why the typed proceedings and judgment of the trial court indicated that the PW. 1 had testified that the appellant held the child on his laps. This contradiction of faqt_ r~ises doubts a as to the way the appellant was holding the child. This was very material fact to be proved under the circumstances of this case because, the way the appellant was allegedly holding the child would have helped this court to determine whether his acts amounted to the commission of the above two mentioned alternative offences. The law is trite that doubts in criminal justice are resolved in favour of the accused (herein the ;appellant), see Page 5 of 6 ,o I ' .· .. ,; Republic. v. Mohamed Shedaffa and Three Others [1984] TLR 95 (HC). For the reasons stated above, I hereby allow this appeal. The judgment of the trial court is hereby quashed. The conviction, sentence and · ,, ~: compensation order against the appellant are thus set aside ..I further order that the appellant is hereby set free and he should be forthwith released from prison unless held for any other lawful order. It is so ordered. Date; 13/8/2012. CORAM; Hon. Utamwa, J. Appellant; Present in person. Respondent; MIS Angela Lushagara (S.S.A). BC; C. H. Omary. Court; Judgement delivered in the presence of the Appellant and MIS. Angela Lushagara (SSA), in open court this 13 th day of August, 2012. Page 6 of 6