20120328 TZHC Iringa

·-\ ; 1" ~ . . JI IN THE HIGH COURT OF TANZANIA ATIRINGA APPELLATE JURISDICTION (Iringa Registry) (DC)' CRIMINAL APPEAL NO. 19 OF 2011 (Originating from Criminal Case No. 13 of 2009 of the District Court of Iringa District at Iringa Before G. Mhini - R.M.) DEUS KAYOLA .................. APPELLANT VERSUS THE REPUBLIC .............. RESPONDENT (Date of last Order 5.3.2012. Date of Judgement 28.3.2012) JUDGMENT KIHIO, J. The appellant, Deus s / o Kayola, was charged with and convicted of rape contrary to Sections 130 and 131 of the Penal Code, Cap. 16 R.E. 2002 in the District Court of Iringa. He was sentenced to thirty years imprisonment plus six strokes. Dissatisfied with both the conviction and sentence, he 1 came to this court in this appeal. The charge sheet in the trial court alleged that the appellant, on 3.1.2009 at 21.30 hours at Idodi village within Iringa rural and Iringa region have carnal knowledge of Sophia D / o Lekeni, a girl of 12 years old. WP 3120, Detective Corporal Salma (PW. 1) gave testimony in the trial court that on 7.1.2009 recorded the appellant's Cautioned Statement (Exhibit P. l). She further gave testimony that the appellant admitted in his Cautioned Statement (Exhibit P.1) to have committed rape. It was in the evidence of Sophia Lekeni (PW.2), a girl aged 13 years, and a Standard five student, that on 3.1.2009 at 21. 00 hours she was playing with her mates and when she was on the way home she met the appellant. It was also in her evidence that the appellant held her hands tightly, covered her mouth and pulled her to his (appellant's) room. She informed the trial court that at his (appellant's) room the appellant raped her and blood came out from her (PW.2's) private parts. She further informed the trial court that she called her grandmother who called the "Kitongojf' Chairman who later on arrested the appellant. She explained that she was taken to Idodi hospital and thereafter transferred to Iringa Government hospital. Rogatus Mavika (PW.3), a Clinical Officer, told the trial 2 ,, ' court that on 4.1.2009 the victim, Sophia (PW.2) was brought at Idodi Health Centre claiming that she had been raped. He further told the trial court that he inspected PW .2 and he found that she had bruises at her female part and blood was coming out. He explained that he recommended that she (PW.2) should be taken to Iringa regional Government Hospital and at the regional government hospital she was examined and PF .3 (Exhibit P .2) was filled. The Village Executive Officer, !gnus Kwangulilo (PW.4) gave testimony in the trial court that on 4.1.2009 the victim of rape, Sophia and the appellant were brought at the Ward Executive officer's office by Sophia's parents. He further told the trial court that the victim's parents complained that the victim, Sophia had been raped by the appellant. He explained that he asked the appellant who admitted to have raped the said Sophia because he (appellant) was drunk. The victim's grandfather, Samson W. Matanzza (PW.5) testified in the trial court that on 3.1.2009 at 18.00 hours when he went to sleep Sophia (PW.2) was playing with other girls at a nearby house. He told the trial court that at 21.00 hours when he woke up he heard his grand daughter, Sophia crying. He further told the trial court that after Sophia (PW.2) said that when she was coming back from playing the appellant attacked her, covered her (PW.2's) mouth and raped her he (PW.5) awaken the "Kitongojz" Chairman. He explained 3 that he and the "Kitongoji'' Chairman found that blood was coming out from the female organ of the victim of rape, Sophia and they arrested the appellant. He further explained that on the same day they reported the matter to the Ward Executive Officer who wrote a letter to the Health centre. Paul Matonya (PW.6), appellant's neighbour, told the trial court that on 3.1.2009 at about 21.30 hours he was awakened up by Samson (PW.5) and after he asked Sophia as to what happened to her and said that she had been raped by Deus Kayola (appellant) they went to "Kitongojf' Chairman's house. He further told the trial court that they arrested the appellant and he (appellant) admitted to have raped Sophia in the presence of the "Kitongojf' Chairman.· He explained that at the appellant's house there was blood on the ground. The appellant denied any involvement in the commission of the rape in the trial court. He gave defence evidence in the trial court that on 2.1.2009 at 03.00 a.m. when he was at home the Village Chairman knocked his (appellant's) door and when he (appellant) opened the door and came out he was arrested. He explained that he was told that he was facing a rape case. He further explained that he was forced to confess that he raped PW.2 as he was beaten. At the hearing of the appeal the appellant adopted his five grounds of appeal raised in his Petition of Appeal. He contended that as the crime occurred during night time the 4 possibility of mistaken identity was greater. He complained that the trial Magistrate was wrong in convicting him relying in the evidence of PW.4 that he confessed before him (PW.4) without tendering any written statement to justify the same. Furthermore, he complained that the trial Magistrate convicted him basing on the Cautioned Statement when trial within trial was not conducted. He stated that the trial Magistrate convicted him when the law was not complied when conducting Voire Dire examination against PW .2. He further stated that the trial Magistrate convicted him relying on Exhibit P .2 without considering that the Doctor from the Regional hospital was not called in the trial for cross- examination. The respondent, Republic is represented by Mr. Luena, learned Principal State Attorney who supports the conviction and sentence. Mr. Luena submitted that as the comm1ss1on of the offence took place in the night and there was no evidence showing that there was any kind of light the possibility of mistaken identification was greater. He further submitted that the appellant did not challenge the evidence adduced by PW.4 to establish that the confession before him (PW.4) was not voluntary. He further submitted that as there was no evidence to show that the confession to the Village Executive Officer (PW.4) was induced by threat, promise or other prejudice, the 5 evidence given by the appellant to PW.4 was enough to fetch conviction. He referred this court to the case of Shihobe Seni and another V. Republic (1992) T.L.R. 330 where it is held that:- "The Village Chairman is a person in authority under Section 27 (3) of the Evidence Act and so a confession made to him is involuntary if the court believes that it was induced by threat, promise or other prejudice. There is no thread of doubt that the confession to the Village Chairman was not induced by threat, promise or prejudice". He argued that a trial within trial or inquiry 1n the subordinate court is conducted where the accused objects the tendering of the Cautioned Statement as an exhibit. He further argued that in the present case, the appellant did not object the application to tender his Cautioned Statement as an exhibit. He contended that the appellant's defence that there was torture was, therefore, an afterthought and he referred this court to the case of D.P.P. V. Nuru Mohamed Gulam Rasul (1988) T.L.R. 82 where the court, at page 84 held that:- "No objection was made to the admissibility of the statement, and in fact PW. 6 was not cross-examined as to the voluntariness or otherwise of the Statement. It seems to us that the repudiation to the statement was an afterthought". 6 He further contended that according to the trial court's record, Voice dire examination was conducted and the trial Magistrate found that the witness (PW.2) did not know the meaning of an oath but he had sufficient knowledge to give evidence and so the trial court was correct in relying on the evidence of PW .2. He stated that as PW.3 was not the author of the PF.3 (Exhibit P .2) the same was not supposed to be relied upon in evidence. He further stated that even if PF.3 (Exhibit (.2) is discarded, the evidence of PW.3, PW.5 and PW.6 is sufficient enough to prove that the victim (PW.2) was raped. He was of the view that in totality of the evidence adduced, the prosecution side proved its case beyond reasonable doubt and so the conviction against the appellant was correct. The first issue for determination here is whether a trial within trial was necessary before the appellant's Cautioned Statement (Exhibit P. l) was relied upon or not. The Cautioned Statement (Exhibit P .1) was taken by PW. 1, a Police Officer who testified and tendered the said statement. It is quite plain that no objection was made on the application to tender the said Cautioned Statement as an exhibit in the trial court. And in fact, PW. I was not cross- examined by the appellant. It is trite law that a trial within trial has to be conducted 7 whenever an accused person objects the tendering of any statement he has recorded (See the case of L. Zambi V. Republic (1991) T.L.R. 200). Mr. Luena correctly argued that a trial within trial, or inquiry in the subordinate court is conducted where the accused objects the tendering of the Cautioned Statement as an exhibit. As the appellant, in the present case, did not object the application to tender the Cautioned Statement (Exhibit P. l) as an exhibit, the trial court was not supposed to conduct a trial within trial before the said Cautioned Statement was relied upon in convicting him (appellant). Mr. Luena argued, and I think correctly so, that the appellant's defence that there was torture when he made Cautioned Statement was an afterthought. Therefore, the appellant's ground of appeal that the trial Magistrate erred in convicting him (appellant) without conducting a trial within trial is devoid of merit. The second issue for determination is whether it was proper for the trial court to rely on PF.3 (Exhibit P.2) to convict the appellant or not. It is in the prosecution case that PW .2 was examined at Iringa regional hospital and PF.3 (Exhibit P.2) filled by the doctor in the said hospital. Precisely, PW.3 was not the author 8 of the PF.3 (Exhibit P.2). Mr. Luena submitted, and I think correctly so, that as PW. 3 was not the author of the PF. 3 (Exhibit P.2) the same was not supposed to be relied upon in evidence. Therefore the PF.3 (Exhibit P.2) is discarded. The next issue for determination is whether the evidence adduced by the prosecution was strong enough to ground a conviction for the offence of rape. The Cautioned Statement (Exhibit P. l) strongly supported the evidence of PW.2 that the appellant had carnal knowledge of PW.2. According to the evidence of PW .4 and PW .6 the appellant admitted before them to have raped PW.2. It was in the evidence of PW. 3 and PW. 5 that they found that blood was coming out of PW.2's female organ. It was in the evidence of PW.6 that when they went to the appellant's house on 3.1.2009 at 21.30 he (PW.6) saw blood on the ground at appellant's house. In my view, the evidence of PW.3, PW.5 and PW.6 is corroborative evidence that PW.2 was raped. In the light of the evidence available in the trial court, I am satisfied that the evidence in the prosecution case was strong that the appellant raped PW.2. The conviction was inevitable. I am, with respect, in agreement with Mr. Luena that in the totality of the evidence adduced, the prosecution 9 side proved its case beyond reasonable doubt and so the conviction against the appellant was correct. Having found that the prosecution side proved its case beyond reasonable doubt I find that is not necessary to discuss the remaining issues. The sentence imposed is proper under the law. In the final analysis, I dismiss the appeal. ~ S.S.S. KIHIO JUDGE 28.3.2012 Court:- Judgement delivered m the presence of the appellant and Miss Ngilangwa, learned State Attorney. J~ , , S.S.S. KIHIO JUDGE ·. 28.3.2012