20120815 TZHC Mbeya1

IN THE HIGH COURT OF TANZANIA AT MBEYA DC. CRIMINAL APPEAL NO.20 OF 2011 (Originating from Rungwe District Court Criminal Case No.22 of 2002) PETER SIO MWANJA ....................... APPELLANT VERSUS THE REPUBLIC ............................. RESPONDENT. JUDGEMENT Before Mmilla, B. M., .1.: This appeal has been preferred by Peter s/o Mwanja who felt aggrieved by the decision of Rungwe District Court in Criminal Case No. 42 of 2002. Before that court, the appellant was charged with and convicted of the offence of rape c/s 130(1), (2) and 131 (1) of the Penal Code Cap 16 of the Revised Edition 2002. He was sentenced to 30 years' mprisonrnent term, and was further ordered to pay Tshs.50, 000/= to victim lady being compensation for the resultant harm she suffered. While the appellant appeared in person, the Republic is being represented by learned state attorney Ms. Mwakilasa who is supporting the conviction and sentence by the trial court. Briefly stated, the facts of this case were that on 07/03/2002 at about 17.00 hrs, at Ikuti village within Rungwe District, the appellant was alleged to have raped a 12 1 years girl, Magdalena dlo Angumbwike. It was alleged that on that day, the victim T) was sent by her mother to collect maize from their farm at Kagira hamlet. According to the prosecutrix, on her way to that village she met the appellant who forced her to go to the latter's house at which he allegedly raped her. After the appellant had accomplished his goal, he allowed her to leave for which she went back home crying. On seeing her, her mother asked her to explain why she was crying. It was then that the prosecutrix told the former about the sexual assault she endured in the hands of the appellant. Her mother examined her and found that she was truly raped. Given that situation, she reported the incident to the village leadership and later on took her to hospital where she was examined and found to have been raped. The memorandum of appeal has raised 9 grounds which may be bridged into only three of them as follows; firstly that the trial court unfairly relied on the evidence of PW1 and PW2 who were persons from the same family, secondly that the trial court erred in relying on the PF3 which was tendered by a person other than the doctor who examined the complainant, and lastly that the prosecution side did not prove case against him beyond reasonable doubt. Admittedly, PW1 Fesi w/o Angumbwike and PW2 Magdalena dlo Angumbwike are close relatives in that the former is the biological mother of the latter. However, I hasten to say that I agree with Ms Mwakilasa that there is no principle of law which says that the evidence of relatives only cannot support conviction. What is important is the credibility of the witnesses involved and also the circumstances surrounding a particular case. This has been stated in the number of cases includes the cases of P. Taray v. Republic, Criminal Appeal No. 216 of 1994 C.A.T., Mwanza Registry (unreported), Mahamudu Mbeta v. Republic, Criniinal Appeal No. 154 of 1978 PA H.C.T. I11Ibeya Registry (unreported, DPP v. Kwilasa Nyorobi and 3 others, Criminal Appeal No. 14 of 1998, H.C.T., Tabora Registry (Unreported) and Jacob Mlongo v. Republic, Criminal Appeal No. 240 of 1995, H.C.T. Dar es Salaam Registry (Unreported). In the former case of P. Taray, the court said that:- "We wish to say at the outset that it is of course, not the law that whenever relatives testify to any event they should not be believed unless there is also evidence of a non-relative corroborating their story. While the possibility that relatives may choose to team up and untruthfully promote a certain version of events must be borne in mind, the evidence of each of them must be - - considered on merit, as should also the- totality-of the story-told by them. The veracity of their story must be considered and gauged judiciously just like the evidence of non-relatives. It may be necessary, in given circumstances, for a trial judge or magistrate to indicate his awareness of the possibility of relatives having a common interest to promote and serve, but that is not to say a conviction based on such evidence cannot hold unless there is supporting is evidence by a non-relative." That aside however, there was also received evidence from PW3 David Malambugi who, had the trial magistrate been careful, his evidence could have corroborated that of the prosecutrix. It is unfortunate that for reasons I will soon assign, the evidence of that witness was mishandled. In the premises, this ground lacks merits. Next is the ground which alleges that the trial court erred in relying on the PF3 which was tendered by a person other than the doctor who examined the complainant. I take cognisance of the submission of learned state attorney Ms Mwakilasa that the said PF3 was tendered b yPW3, the doctor who examined the complainant in this case. With due respect. I do not agree with her. It is evident from the record that the doctor who examined the complainant testified in this case asPW3. He gave evidence and was given opportunity to discuss the contents of the PF3. However, instead of paving way for him to tender that document as evidence in court, he merely identified it after which it reverted to the public prosecutor. As reflected on page 8 of the trial court's typed proceedings, the said PF3 was for no apparent reasons tendered by the Public Prosecutor on a subsequent date. Ipsa facto, that was improper. This in my view was a glaring mistake of both, the public prosecutor and the trial magistrate. However, since the appellant was given opportunity to cross examine PW3, I hold the view that the mere fact that it was tendered by the public prosecutor did not constitute fundamental irregularity capable of working injustice in the case. That is indeed a curable defect under the provisions of section 388 of the Criminal Procedure Act. Before I may consider whether or not the prosecution side proved its case against the appellant beyond reasonable doubt, let me pose here to say that on going through the proceedings of the trial court, I discovered that the voire dire test conducted by the trial court was not articulate. The record goes:- I am studying in std IV at Ikuti P/School. I am a Moravian by faith. I do go to church with my friends such as Oliver. The priest teaches songs and prayers. God likes honest and truthful people rather than liars. The liars are sinners. I will tell the truth only. I do not know oath." Upon that, the court said:- "I find that the witness does not know the nature of oath but can tell the truth and she is intelligent enough. She is therefore affirmed and state that". It thus affirmed her after which she gave her testimony. 4 4 In the views of this court, those few sentences were barely sufficient to establish whether the child had enough intelligence to testify and, or, whether the said child understood the duty to tell the truth. The Learned trial resident magistrate ought to have conducted a proper voire dire test sufficient to establish that the complainant possessed sufficient intelligence to testify and or that she knew that she had an obligation to tell the truth. See the case of Jiunu Choroko v. Republic, Cr. Appeal No. 23 of 1999, CAT, Mwanza Registry (unreported).As such, it cannot be said that her evidence was properly received on oath. It is supposed to be ignored as I accordingiy do. As courts have repeatedly stated, evidence of rape is forthcoming from the victim of rape, and that where the evidence of such a person is unclear or unreliable, conviction can stand only where there is other cogent evidence to sustain a conviction. The other witnesses in this case were PW1 Fesi Angumbwike, PW3 David Malambugi and PW4 Mbilike Mwambani all of whom were not eye witnesses. Their evidence cannot be said was alone capable of proving that the appellant raped the complainant. There are a lot of doubts which' are required to be resolved in favour of the appellant. For reasons I have attempted to give, it cannot be said that the case was proved against the appellant beyond all reasonable doubts. Thus, the appeal is allowed. In consequence, the judgment of the trial court is quashed and the sentence thereof is set aside. The court orders for appellant's immediate release from prison unless he is otherwise being continually held for some other lawful cause. 5 4 Sgd 4) Mmilla, B. M. - -.: /5 ,1 Judge 15.8.20 12 I certify that this is a true copy of the original. MI Digi,trici Re istrr High C u' Tanzania MBEYA N .