20130717 TZHC Mbeya

I IN THE HIGH COURT OF TANZANIA AT MBEYA DC CRIMINAL APPEAL NO.16 OF 2011 (From Mbeya District Court Criminal Case No.121/2009) CHARLES S/O KYULA .............................. APPELLANT VERSUS 1 HE REPUBLIC .................................... RESPOIIDEI4F JUDGMENT 17.09.2012 & 17.07.2013 CHOCHA, J. Charles Kyula who is the appellant herein registered eight grounds to fault the trial court's decision. The said court had convicted and sentenced him to 30 years imprisonment against the offence of rape c/ss 130 & 131 of the Penal Code. The victim is Grace Jackson who at the time of the alleged commission of the offence in May 2009, was 7 years old. The appellant had additional grounds during the hearing of the appeal including the fact that PW2's evidence was hearsay as he was not at the scene of crime. The appellant faulted the identification parade conducted in that it was useless. He further called upon this court to side with him on another ground that the doctor was not called to explain the PP 3 exhibited. The Respondent Mr. Rogers - State Attorney resisted the appeal. He conceded that the trial proceedings contain minor curable discrepancies. They were to him of no effect to the strong evidence on record. Let me begin by conceding that the trial proceedings particularly the reasons assigned in the judgment, were not friendly marking lesser language involved. The reasoning was not easy to follow. It constitutes sufficient ground to quash the trial proceedings if they are incomprehensible, such that the appellant/accused shall become a beneficiary. From the few facts which I managed to comprehend I wish agree with both the respondent and the appellant in some areas. The appellant rightly contends as it has been insisted in the case of ALFEO VELENTINO V.R. CRIMINAL APPEAL NO.92/2006 (CAT) unreported, that in rape cases, the best evidence comes from the prosecutrix. Other witnesses unless they were at the scene, may only give corroborative evidence. Conviction on rape cases revolve on the proof of penetration of a penis into the vagina. The doctor's report in the PF3 therefore may only corroborate the victim's evidence with regard to penetration. As to whether penetration amounted to rape that will depend on the prosecutrix own explaination which must conform to the conditions set out u/s.130 & 131 of the Penal Code. It follows therefore that the trial court may proceed with conviction of the accused basing on the prosecutrix evidence alone provided it is satisfied with the truthful and credibility of her evidence. • Conviction therefore shall not be defeated by irregularities or non production of a PF 3. This is another way of explaining the 2 position set out u/s 143 of the Tanzania Evidence Act with regard to the number of witnesses. It is now settled that no number of witnesses is required to prove a fact. The magistrate who tries a case involving capital offence should be and careful. That does not however mean that he/she should be slack and careless when dealing with others. Capital offences such as rape for example, is associated with side-paths more than minor offences. The magistrate should both understand and apply them effectively. The requirement to fully address to the ingredients set out in s. 127 (2) of the Tanzania Evidence Act should not be over- emphasized. It is not enough where a witness involved is a minor, to just put questions to him. The primary intention of the "voire dire" which the trial magistrate is bound by law to finally make a finding, is whether the witness so interviewed is possessed of sufficient intelligence to justify receiption of his evidence. The magistrate's opinion on this finding, shall be put on record. [See: RUNGU JUMA v. R. (1994) TLR 176; DHAHIRI ALLY v. R. (1989) TLR 27]. That crucial ingredient of s.127 (2) supra was unfortunately neither addressed nor fulfilled. The omission accidental or designed, adversely impacts the prosecution's case such that the prosecutrix evidence can no longer stand alone uncorroborated. Is there any corroborative evidence to the prosecutrix' story? The caution statement (Exh.1 3 2) appears to carry on board very MO incriminating information against the appellant. The statement's inside story cannot be so easily ignored. In view of what has herein been stated, substantial justice is appealing more than addressing techriicalities. That is possible only through a RETRIAL. I am alive as directed in the case of NJENGA & ANOTHER V.R (2002) 1. EA 297 that: 'n order for retrial would not be automatic. It would only be made where the interest of justice required It It would not be ordered where it was ilkely to cause injustice to the accused." When considering an order for retrial, the court should bear in mind the part of sentence covered by the appellant. So far, there is little or no doubt at all that PW1 was fornicated. Any irregularities observed by both the appellant, respondent and this court shall be addressed during the retrial to enable the court to achieve true justice. The appellant has served only 1.5 years from 30 allocated to him. He still had a long way to go. So that a retrial can work, conviction is quashed. The sentence which was after all incomplete for want of an order for compensation, is set aside. The appellant shall remain in remand as a remand prisoner pending retrial. The trial court shall be at liberty to consider the appellant's bail upon application, and subject to the prevailing conditions. For avoidance of doubt, a retrial shall proceed before a different magistrate with a competent jurisdiction. 4 , / Ordered accordingly. '1 ' :/_./ •' I; / Judge 17/07/2013 -. - - - - - Date: 17/07/2013 Coram: N.P.Z. Chocha, 3. Appeflant: Present. Respondent: Ms G wa Itu - State Attorney. 1/Ass: Anna R/A: Gaudensia. Court: - Judgment delivered. Order: - Right of Appeal Explained. Nze Judge 17/07/2013 II 5