20120706 TZHC Iringa

IN THE H~GH COURT OF TANZANIA AT IRINGA DC CRIMINAL APPEAL NO. 31 OF 2011 (Originating fror,-:i Iringa District Court CRIMINAL CASE NO. 278 OF 2004 LUCHANO MDUDA ........ :... :... :..............................................APPLICANT VERSUS THE REPUBLIC ...............-.................................................... RESPONDENT _JUDGMENT MKUYE, J In the District Court -of Iringa at Iringa the appellant was convicted on two counts of rape contrary to section 130(a) and 131 of the Penal Code, Cap 16 R.E. 2002. He was alleged to have, on the 9 th day of July 2004 at about 14:00 hrs at Mangalali village within Iringa Rural District in Iringa Region, carnal knowledge of Godliva Ngwale who was a girl aged 3 ½ years ad one Drona Mkeya who was also aged 3½ years. He was thereafter sentenced for life imprisonment for each count which were ordered to run concurrently. Dissatisfied with both conviction and sentences he has appealed to this court. The facts leading to this appeal are that, Drona Mkeya (PW1) and Godliva Ngwale (PW2) lived with their grandmother 1 ', ',, .Rose Sanga (PW3) @ Mama Rehema. On· the material day i.e. 9/7/2004 the two children were at home with their grandmother. Then came a certain person called Luchano at their home with the aim of getting a shelter from the sunshine. At one time the grandmother went to take bath while leaving Luchano sitting on the chair._ As PW3 was still taking bath she heard her granddaughters crying. When she came to respond to the children the appellant ran away. PW1 told her (PW3) that the appellant raped both of them. On inspecting them she saw blood and sperms on their pants and vargina. The girls were taken to the hospital where they were admitted for treatment. The appellant was arrested and taken to the police station and then to the court. The appellant's defence was as follows: "XO: I did not commit this offence. " The appellant has fronted seven grounds of appeal and at the hearing of this appeal he appeared in person while the respondent Republic was represented by Mr. Mgavilenzi, learned state attorney. In the first ground of appeal the appellant complains that his conviction was based on the evidence of PW1, PW2, PW3, PW4 and PWS who were family members and their evidence was not corroborated by independent witnesses. Mr. Mgavilenzi in reply argued that the appellant did not show how the witnesses were related. At any rate he argued that there is no law that 2 prohibits relatives to testify as per section 127(1) of the Evidence Act, Cap 6 R.E. ~002. What was required is their credibility and no need of calling neighbours did arise. On my party I think Mr. Mgavilenzi is quite correct Section 127 (1) of the Evidence Act states: "Every person shall be competent to testify unless the court considers that he is incapable of understanding the questions put to him or of giving rational answers to those· questions by reason of tender age, extreme old age, disease (whether of body or mind) or any other similar cause" [Emphasis supplied] In fact this section allows every person to testify except were the court considers that he/she cannot .understand the questions or gives irrational replies to what is asked on the ground of tender age, extremely old age or is incapacitated by disease. Family relations is not one of them. I think as rightly submitted by the learned state attorney, what is important is the credibility of witness. In this case, much as the appellant has complained that the witnesses were related, in my view, he did not establish such relationship. After all there is no law that prohibits relatives to testify and therefore this ground fails. With regard to the 2 nd ground the appellant complains that there was no caution statement which was tendered in court to 3 --~-GGFr:oborate PW4 and -P-W-5'-s--- evidence that he -adm-itted the commission of the offence. The learned state attorney in reply submitted that the appellant had admitted to PW4 and PWS who were not the authorised officers to take his caution statement and therefore no caution statement was recorded. He stressed that PW4 and PWS testified on what they heard from the appellant which was, nonetheless corroborated by the VEO (PW6). I agree with the learned state attorney that there was no caution statement recorded at the police. Neither PW4 nor PW6 had authority to record it. It means there would not have been a caution statement under the circumstances. It must be noted that PWS did not wttness the appellants admission. But going by the record it shows that PW4 and PW6 testified about the appellants' admission to the offence. PW4 said after arrested the accused was sent to the village Executive Qfficer where he· admitted the allegations and said he did the act without knowing the implications. PW4 in my view did not show whether she was present at the time of his arrest and his admission to the allegations. PW4 was expected to explain clearly as to whether she was present or she was reporting from what she heard from other people who witnessed such admission. But PW6, the VEO also said after getting to the office where the appellant was taken after the arrest and asked him, he admitted to have raped the victims because he was drunk. 4 This evidence contradicts with that of PW4 in that whereas PW4 (if at all she • witnessed the _admission) said the accused· admitted -the allegation without knowing the implications, but PW6 said he admitted that did rape the children because he was drunk. From this evidence it is not known as to who really heard when appellant made admission. What did the appellant really say. But this problem is enhanced by the fact that PW6, the VEO did not reduce the appellants admission in witting. Had he recorded it, there couldn't have been such a discrepancy. We could have been in a position to know as to what exactly the appellant said and that I think would have added value to the alleged admission. This ground succeeds to that extent. The appellant's complaint in grounds No. 3 and 4 is that PWl and PW2 did not establish who raped them and that it was impossible for him to rape both PW1 and PW2 simultaneously. The respondent Republic in reply argued that PW3 had left the children with the appellant. While she was taking bath she heard the children crying and on reaching them they told her that the appellant raped them. The appellant ran away. PW3's inspection and PW4 (Dr Margreth Kiliganyi examination to PWl . and PW2 revealed that the children were raped. The learned state attorney argued further that the offence was committed at different times that is at 14:00hrs and another at 14: 15 hrs. He further argued that much as PW3 said the appellant came at 15:45 there was no need to pin down illiterates on the issue of time. He did not cite any authority. 5 Of course evidence which was reli-ed upon to convict the appellant was from PWl, Drona that the appellant raped them. PWl's evidence was received not on oath after she was found, following viore dire test, that she does ·not know the meaning of oath. Her evidence was taken to have been corroborated by PW3 who heard children crying and PW4, PWS and PW6 who- said appellant admitted the offence. But l think PWl has to be expunged as it was in contravention of section 127 (2) of the Evidence Act. The trial magistrate did not record in the proceedings whether PW1 possessed· sufficient intelligence to justify the reception of his evidence. and she understood the duty of speaking the truth. (See also Dhahiri Ally V R (1989) TLR 27). PW2, Godliva Ngwale's evidence_ is also worthless is she was unable to explain as to what happened. The evidence which remains is that from PW3. This witness said the appellant had gone to her house at about 15:45 hrs in order to get shelter from sunshine. He stayed for sometime then she left him there when she went to take bath. At about 7:00 pm while still taking bath, she heard her granddaughters (PWl and PW2) crying. When she· came to see what was happening the accused ran away. On inspecting them she saw spermatozoa and blood in their pants and vargina. That rape was committed to PWl and PW2, it is without question. When PW3 inspected the victims she found blood 6 and sperms on their under pants and vargina. But also PW7, the doctor who examined the vjctims revealed that both children had lost their hymen and had bruises (Exh. Pl and P2). However, I am perturbed by PW3 evidence as to whom could have committed the offence and at what time. In the first place in the charge sheet, particularly in the particulars of offence, it show that the offences were committed at about 14:00 hrs to 14: 15. Of course this controverts the appellants' complaint as to how could he has raped the two victims simultaneously. From the charge sheet it is shown that the offences were committed at different times as shown above. When I pursue PW3's evidence as to whether the appellant committed the offence I find that there is a. contradiction as to at what time the offence could have been committed and to who could have committed it. If the offence was committed between 14:00. and 14: 15 as indicated in the charge sheet and the accused is alleged to have arrived at 15:45 as testified by PW3, it means the offence was committed at about 1 ½ hours before the arrival of the appellant. Admittedly, there is a big variance on time. But again PW3 in her testimony during examination in chief said as she we taking both at about 07:00 pm, she heard her granddaughters crying and when she went to see them she saw the appellant fleeing away across the path. This evidence has four fold problems one, at what time was the offence committed, was it within the time between 14:00 to 14.15 hrs or at about 07:00 pm (19:00 hrs) when 7 PW3 heard the granddaughters crying. Two, who furnished information to the police which enabled them frame the charge • if not PW3. who was around the scene of crime when the alleged offence was committed and as such acted as the complainant. Three, ifthe offence was committed at 7:00 pm, how was she able to see and identify the appellant. Four, if the offence was committed at 7:00 pm and appellant arrived at 15:45, what was he doing during all that time. I am aware of the unbroken chain of authorities that hold that illiterates should not be pinned down on the issue of time. However, the difference on time in this case is so glaring and contradicting to the extent that it leaves nagging questions as to what time could the offence have been committed. But again if the offence was committed b·etween 14:00 to 14: 15 who could be that person who committed the offence as the appellant arrived at 15:45 hrs. PW3's evidence raised doubts. The complaint of appellant in ground No. 5 is that the trial magistrate erred in law convicting on a plea of the appellant on the first day. The learned state attorney in rebuttal said that the trial magistrate did not rely on his own plea of guilty as he denied the facts to be not correct. He argued further that the preliminary hearing was not conducted but it did not occasion miscarriage of justice. On my part, I was unable to see where the trial magistrate convicted the appellant on his own plea of guilty. As rightly submitted by the learned state attorney , the appellant 8 substituted his ·guilty he_ had entered on 14/7/2004 to that of not guilty on 15/7/2004 after the charge was read over to him • · and the trial magistrate recorded as hereunder: "Court: The accused has changed his plea. Hence it is entered a Plea not Guilty to Charge" But, to prove that he was not convicted on his plea of guilty trial commenced whereby seven witnesses testified for the prosecution and the accused defended himself. Clearly, the appellants' claim lacks merits. The state attorney has also observed that no preliminary hearing was conducted as required by section 192 of the Criminal Procedure Act, Cap 20 R.E. 2002. This omission in my considered opinion was not fatal as the whole case was formally proved by the prosecution witnesses and the appellant was availed with an opportunity to cross examine the witness and to defend himself. I think the omission to conduct preliminary hearing in the circumstances of this case did not occasion miscarriage of justice to the appellant. In the 6 th ground of appeal the appellant complained that the trial magistrate convicted him on the weakness of defence. The learned state attorney in rebuttal argued that much as the accused just denied to commit the offence without elaborating it 9 but there was sufficient- prosecution evidence which wa_s · relied on convicting him. f Admittedly as already explained earlier, appellant was given a chance to defend himself and he said: "XD I did not commit this offence" He did not clarify as to how he was not involved in the commission of offence. But that was his right as he could even have remained silent as per 231(3) of the Criminal Procedure Act. But in this case the trial magistrate convicted him on the available prosecution evidence which she believed to be watertight. I find that this ground lacks merits as well. Having said that, after looking at the totality of evidence I find that the prosecution had proved that PW1 and PW2 were raped but did not establish that the appellant was the one who committed the offence. In the final analysis, I allow the appeal, quash the conviction and set aside the sentences imposed against him. I further order;.,:J;r;~Tm.:-qife<:;Hq_te ' ::'"'=- release unless held for other lawful -"/,-.., .. .,,.,,,. r/✓,I \ \ •~,t,, ,;f/ ' j/ ·,, ,,, ,.....,.,...,.~---~, ......, '> .._ ,,,, reasons. //:_.)/ /t:, c-;.,. ·,,-~-,-,:~. JUDGE 6/7/2012 Coram: Hon R.K.Mkuye, J 10 Appellant: Present For Respondent: Ms Ngilangwa State Attorney for Republic. • C/C: Mr. Charles Delivered on this 5 th day .of JuJy 2012 in the presence of Luchano Mdunda the appellant and Ms Ngilangwa learned state attorney for the respondent Republic. \1iv~ e_ R.K.MKUYE -';" '' .".,,. g ,:;·)t JUDGE 6/7/2012 11 ,,I I '' I i ;. ·l j! I: . C