20130730 TZCA Tanga

,, .. IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: KILEO, J. A., MASSATI, l. A. And MANDIA, J. A.) CRIMINAL APPEAL NO 330 OF 2009 RAM AD HAN I SH EKIKA •••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT VERSUS THE REPUBLI·C ••••••••••••••••••••••••••••••••• ••1• ••••••••••••••••••••• RESPONDENT Appeal from the judgment of the High Court of Tanzania atTanga (Teemba, l.) dated the 17th of February 2009 in Criminal Appeal No. 21 of 2008 •••••••••••••••••••••• JUDGMENT OF THE COURT 30th & 31 st July, 2013 KILEO, l. A.: The District Court of Korogwe sitting at Korogwe convicted the 1 appellant of rape contrary to section 130 (2) (a) of the Penal Code, Cap 16 R. E. 2002 and sentenced him to life imprisonment. His appeal to the High Court was dismissed hence this second appeal. 1 th Evidence was led at the trial court to the effect that on 15 day of May 2007, at around 15 hours, PW2 Msekwa Samwel, a girl child aged 9 years who was left alone at home was approached by the appellant who led her to the bush on the pretext of getting her fish for her mother. Once in the bush the appellant raped the child. The victim ran cJway naked after she had been raped and it was PW3 Tekele Xavery who gave her his shirt to cover herself. A few moments prior to the incident the appellant with PW2 had passed by where PW3 was seated. The appellant preferred the following three grounds in his memorandum of appeal: 1. That the courts below erred by not properly complying with the mandatory provisions of section 127 (2) of the Evidence Act Cap 6 R.£ 2002 2. That the courts below erred by acting upon a defective charge which did not tally with the facts of the case. 3. That both courts below erred in failing to consider the defence raised by the appellant that he is impotent. 2 . At the hearing of the appeal the appellant appeared in person, unrepresented. In addition to his grounds of appeal the appellant had filed a written submission which he asked us to adopt. Ms. Shose Naiman learned State Attorney represented the respondent Republic. She supported the first ground of appeal agreeing with the appellant that section 127 (2) relating to the voire dire test was not properly conducted. As for the other grounds she submitted they had no merit. At first she had asked us to order a retrial but on reflection she withdrew the suggestion. We will begin with the ground on voire dire test. In order to properly appreciate whether voire dire was conducted we need to look at what transpired in the trial court. The record reads as follows: PW.2 - MSEKWA SAMWEL, FEMALE, 9 YEARS, ISLAMIC - I am used to go to the mosque to pray - I am Std II at Majengo - I am telling the truth - We are taught say the truth 3 - If I tell the lies they will beat me. - Telling lies is committing sins. - I do not like to commit sins. I do not like to do so. The above recording was followed by the finding of the trial magistrate to the effect that the child did not understand the meaning of oath but knew the duty of telling the truth. Thereafter he took down the unsworn testimony of the child. It is unfortunate that the trial magistrate did not fully comply with the requirement of section 127 (2) of the Evidence Act. The relevant provision states thus: "127. Who may testify (1) 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. (2) Where in any criminal cause or matter a child of tender age called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be received though not given upon oath or affirmation, if in the opinion of the court, which opinion shall be recorded in the proceedings, he is possessed of sufficient intelligence to I I I 4 • justify the reception of his evidence, and understands the duty of speaking the truth." (Underlining provided). After the trial magistrate had found that the child did not understand i the nature of oath if he was satisfied that the child wbs possessed of sufficient intelligence to warrant the reception of her evidence then he ought to have ~ade a recording to that effect as the law dictated. Such non- compliancl on the part of the court may sometimes result I in a I i miscarriage of justice to one side and trial courts are enjoined to be more careful in the observance of the law so that justice may not only be done but be seen to be done. For the purposes of the matter before us even if we were to expunge the testimony of PW2 from the record, as we hereby do, still there was sufficient circul'.nstantial evidence upon which conviction could be sustained. In the firs~ place there is the evidence of PW3 who saw the appellant I with the child passing by where he was seated. Shortly thereafter he heard I some shouts and as he went towards the place where the shouts were 5 coming from he met with the child who was naked and who complained to him that it was the appellant who had raped her. We also have the I evidence of PW4, the grandmother who examined the child after she had complained that she was raped by the appellant. PW4 in(ormed the court I that upon examir,ation of the child she found that she was bleeding on her I vagina and she also saw sperms. The prosecution witnesses were found to be credible and as a second appellate court we see no reason to interfere with the finding of the lower courts on credibility. On the whole we are satisfied that the circumstantial evidence that was available led to no other conclusion but that the appellant raped the child. Accordirag I to the victim's I mother the victirp was born in 1998 which would make her to be 9 years of I age in 2007 when the crime was committed. The appellant also complained about the charge not tallying with the facts of the case. The appellant was charged under section 130 (2) (a) of the Penal Code, Cap 16 R. E. 2002. Since the child was under 18 years he ought to have been charged under section 130 (2) ( e). if"his ground was thoroughly deal~ with by the learned High Court judge who concluded that the failure to cite the correct section in the circumstances of the case did 6 J. not result in injustice as the age of the chHd was stated in the charge sheet and the appellant knew very well the nature of the offence with which he was charged. We agree with the learned judge that the error was one that could be easily cured by the provisions of section 388 of the Criminal Procedure Act cdPA) and we need not tarry on this ground. On the admission of the PF3 into evidence without :compliance with section 240 (3) of the CPA we are of the settled mind, as was the case with the first appella:te judge that even if it were to be expunged from the record still, as we have belabored to show above, there was sufficient evidence for sustaining a conviction. Where there is other evidence supporting the charge of rape an accused should not get away by the mere fact that the PF3 was improperly admitted. See Mohamed Yusuf v. R - Criminal Appeal No.1 of 2006 (unreported). Lastly, the appellant complained that his defentle that he was I impotent was not considered. The appellant's contention is not supported by the record which shows that the defence was thoroughly considered and rejected. The trial magistrate even noted, and rightly so that the 7 ' appellant remained silent all the time and only raised the defence of I impotence at the last moment. The defynce was properly rejected as it !: was an afterthought. All in all, the findings of the courts below cannot be faulted. In conclusion we find that there is no merit in this appeal and we i accordingly dismiss it in its entirety. DATED AT TANGA this 30 th day of July 2013. :j '1 E. A. KILEO :1 JUSTICE OF APPEAL i S. A. MASSJ}TI JUSTICE OF APPEAL I i W. S. MANDIA II JUSTICE OF APPEAL ... ,, I 8