mohd manganga sebastian vs dpp 2012 tzhc 170 20 february 2012

IN THE HIGH COURT OF ZANZIBAR HEALD CHAKE CHAKE CRIMINAL APPEAL NO: 01 OF 2011 FROM ORIGINAL CASE NO 18 OF 2009 OF M AHAKAM A YA MKOA CHAKE CHAKE M O H ’D M ANGANGA SEBASTIAN APPELLANT WA CHUO CHA MAFUNZO W E T E -P E M B A V/S D P P RESPONDENT JUDGMENT. This is appeal against the Judgment in criminal case No. 18 o f 2009 where the appellant, M oh’d M aganga Sebastion was convicted by Regional Magistrate, Chake Chake Pemba, Haji Omar Haji for the offence o f indecent assault contrary to section 131 (1) o f the Penal Act No. 6 o f 2004. The appellant was sentenced to seven years im prisonment in the offenders Educational centre. The background to the case in that the appellant was alleged that on 14th April 2009 at about 7.300 am at Magome Vikunguni within Chake - Chake district in the south Regional o f Pemba has indecently assaulted a little girl o f three years old called Fauzia Juma Humud by trying to penetrate his penis into the child’s vagina and caused her to suffer serious pain. The appellant being aggrieved by that sentence appealed to this court. He filed a memorandum o f appeal which are produced hereunder. 1. Mhe. PW1 ambae ni mlalamikaji wa kesi hii, ushahidi alioutoa ni wa kutiwa kidole cha kuma sio kuingiliwa kwa nguvu na hakuma hata shahidi mmoja alisema kama kaingiliwa kwa nguvu. Hakuna shahidi yoyote alieithibitishia Mahakama kuhusu tukio hilo bali ni ushahidi wa uongo tu uliotolewa mbele ya Mahakama dhidi yangu mrufaa. 2. Mhe, PW2, PW3 na PW4 mashahidi hawa hakuna hata mmoja alieniona mrufaa nilifanya matukio hayo na vile vile shahidi wa tatu (PW3) alitoa ushahidi wake kwa kusema ni kijiti kilichomchoma huyo mtoto sio kuingiliwa kwa nguvu na hata kushambuliwa kwa aibu. Huu vile vile ni ushahidi wa uongo na wa kupanga uliotolewa mbele. ya Mahakama. 3. Mhe, PW5 huyu ni shahidi ambae ni Doctor, ndie aliyempima huyo mtoto hajaona ishara yoyote ya kuingiliwa huyo mtoto hajui kama ni kidole au ukucha na sio kuingiliwa kwa nguvu. Huyu ni shahidi muhimu wa shtaka hili sijui mpelelezi wa kesi hii alithibitisha vipi na kuchukua faili na kulipeleka M ahakam ani? Huu ni ushahidi wa uongo walioutowa mbele ya Mahakama. 4. Mhe, PW6 huyu ni mpelelezi wa kesi hii, yeye huchukua na kupokea mafaili ya kesi, alilichukua faili la kesi hii kabla ya tukio, hii ni wazi kwamba mpelelezi wa kesi hii anaendelea kusema uwongo mbele ya Mahakama. Vile vile alisema yule mtoto alipelekwa kuchekiwa katika Hospital ya Vitongoji wakati Doctor aliemcheki ni wa Hospital ya Chake Chake. The appellant adopted his grounds o f appeal as the are and added that he is living HIV and is using AVR which make him unstable and further he does not here sufficient food. These grounds o f appeal were resisted by the office o f the Director o f Public Prosecution who was persecuted by learned state Attorneys Ali Haidar and Juma Ali. On the first ground o f appeal they argued that it is not true that there was no eye witness. The act was committed to PW1 on p. 10 o f the proceedings is a direct oral evidence under section 60 (a) o f the Evidence Act, which is sufficient for committing indecent assault. Regarding the second ground o f appeal, they agree that PW2, PW3 and PW4 did not witness the commission o f the offence. The offence was committed to PW1 those witnesses corroborate what was said by PW1. He added that in law there is no fixed number o f witnesses required in proving the case, even one credible witnesses is sufficient. He cited the case o f Waihi A m iri V. Repuplic (2006 - unreported) Court o f Appeal o f Tanzania which emphasize on the impotence o f the credibility o f the witness. He added that PW3 did not use those woods put in the second ground. PW3 said she sold “M aandazi” and beans” to the appellant who did not eat there as usual he took then and went to eat in his house (P. 18 o f the proceedings). Regarding the third ground o f appeal they submitted that they don’t agree that PW5 did not see any sign o f penetration in PW 1. In fact PW5 said that the urethral orifice o f PW1 o f PW1 has been tom and she was bleeding and she stretched her. She said there must be something inserted and caused the tear and bleeding. She did not know the exact thing inserted. (p.27and 28 o f the proceedings). They submitted indecent assault as the doctor testified that the girl was wounded on her private part. Regarding the fourth ground which tales about contradiction in the testimony o f PW6 (the investigator). They submitted that the error regarding the date does not affect the prosecution case. All other witnesses testified that the act was committed on 14.4.2009. The court should address root o f the case. When they go to the root the appellant is given the benefit o f doubt, but when they are manor they do not vitiate the proceeding. He cited the case o f M oh’d Said Matula V. Republic (1995) TLR 3. Regarding the doctor who checked PW1, what PW6 said is than on 15/4/2009 PW1 was treated at Vitongoji and then was brought at Chake- Chake for farther observation and treatment (p.34of the proceedings) He cited the case o f Charles Hombo V. Pepubiic court o f Appeal,2006 (Unreported). Regarding the admissibility o f testimony o f PW1 the learned state Attorney argued that although PW1 does not understand oath or the duty to speak the froth, but she possess sufficient intelligent to testify. He cited the case o f Alfeo Valentino V. Republic, (CAT 2006 unreported) where the court held when there is sufficient intelligence the evidence should be received. Further the testimony o f PW1 was corroborated by PW2, PW3 PW4 and PW6. In addition the act o f appellant to run away demonstrate that some thing has happened, he also asked for forgiveness from PW. On the issue o f HIV infection he submitted that our laws are silent on this and does not affect conviction. It may be considered in sentencing, but he foiled to prove that he has HIV. They prayed that conviction and sentence should be upheld and the appeal be dismissed. In his reply the appellant submitted that the act of indecent assault has not been committed and the investigator lied on the date he received the case file. Regarding HIV he submitted that he has HIV and was refused to annex the medical prescription. He prayed that he should be set free. Starting with the first ground o f appeal, what is stated here is contrary to what has been situated in the proceedings. Page 10 o f the proceedings narrate the testimony o f PW1 as follows:- “ I do remember to have been wounded. I was wounded my private parts (PW1 shows her vagina). She points a finger towards her reproductive organ). The one wounded me is his accused person. I remember the name of this accused person to be Maganga. This Maganga. This M aganga wounded me and Idled. The blood was emitting from my reproductive organ. Maganga had perpetrated his pens in any vagina” . This chord though o f tender age has sufficient intelligence. She recognized the accused who attached her and explained what ha happened to her. In this regard I have no doubt that she is giving a true account o f what has happened to her and therefore I found the first ground o f appeal baseless. With respect to the second ground o f appeal, we are all in agreement that PW2, PW3 and PW4 did not see the accused committing the act o f indecent assault. Infect, it is only PW 1, the victim o f such assault who witness the assault, the other witnesses corroborated the evidence o f PW1. Infect, it is rely hard to find many eye witnesses on the offence o f this nature which must o f the time is committed blend four walls or in a hidden area. Hence, The circumstantial evidence brought by these witnesses are very important in collaborating the evidence o f the eye wittiness. PW2 testified that on the fateful day he was at “M ashavu” and saw P W 1 crying and her clothes were dirty. She asked her to go to her mother and fake both. Her mother called her when she found blood on her under pant and she took her to the hospital where she was fold PW1 has been axially assaulted. PW2 took PW 1 to a place where appellant was cultivating and he was identified by PW1. On the other hand PW3 testified that she sold” maandazi” and beans to the accused on that morning who look them to his house and his was testified by PW1 that she was given “maandazi” and beans by accused. PW4 testified to the affect that she saw blood on PW 1’s under pant and found that she has been infused. Hence, all these circumstantial evidence are leading to the caudation that PW1 has be sexually assaulted. Regarding the third ground o f appeal, it is PE5’s testimony that colluded the evidence that PW1 has been sexually assaulted. An unsown thing has been inserted into her private parts and the urethral orifice has been torn. Hence, this ground o f appeal is also baseless as PW5 testified to that effect that PW1 has been sexually assaulted With respect to the fourth ground o f appeal that there was an error on the date mentioned by PW6. 1 agree with the appellant that it was not possible to receive a case file on 12.4.2004 when the act, which is complained o f was committed on 14.4.2009. But on his testimony he testified further that it was on 15/4/2009 when he met Fauzia and took her to the hospital. The second date is correct while there was an error on the first. This contradiction on the date is very minor and does not affect the prosecution case. Regarding PW1 being attended in two different hospitals this is a common phenomena to refer a patient to another hospital for better aberrance. Hence there is no contradictions in this matter. From the above reasons I am satisfied that the appellant was rightly confided by the learned trial magistrate and this appeal is devoid o f any merit and it is dismissed. SGD: ABDUL-HAKIMU A .IS S A J 20 / 2/2012 Court: The judgm ent is ready on chamber on this 20th day o f February 2012 in the presence o f appellant and Ali Haidar for DPP. SGD: ABDUL-HAKIM A .IS S A J 20 / 2/2012 Court: The right o f appeal is explained. SGD: ABDUL-HAKIM A.ISS,J 20 / 2/2012 r I CERTIFY THAT THIS IS A TRUE COPY OF 'TflE ORIGINAL. V - - ; > ................... YESSAYA KAYANGE (D /R )^.^' - C H A K E - CHAKE PEMBA