20141126 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA ATMBEYA i DC CRIMINAL APPEAL NO. 86 OF 2q13 (Original Criminal Case No. 43/ 2013 from Chunya District Court) EMMANUEL ADAM ......................... APPELLANT VERSUS ' I THE REPUBLIC ...................... ,................ RESPONDENT JUDGMENT Date of Last order: 24 / 11/2014 Date of Judgment: 26/11/2014 A. F. NGWALA, J. I The Appellant, EMMANUEL ADAM was charged before the District Court of Chunya with the offence ·unnatural offErnce contrary to Section 154 (1) (a) (2) of the Penal Code, Cap. 16 R. !E. 2002. It is alleged that, on 12 th day of December, 2012, the Appellant did unlawfully have carnal knowledge of one Doreen d/ o Abijan, a child of five (5) years old. / At the end of the trial, the District Magistrate was satisfied with the evidence of the prosecution side. He sentenced the Appellant, to the mandatory term of life imprisonment. He has now,~ called to this court against both, the conviction and sentence. In brief, the prosecution case is that, on 12 th December, 2012, the Appellant went to the place where PWI the victim. was playing with her colleagues. The Appellant took PWI inside his home. 1 He undressed her clothes and destroyed her underwear. He then took his penis, and had carnally known the victim, PWI against the I order of nature. After completion of this act, the accused kept PWI under the bed. There after, PW4 Schola appeared and discovered that PWI was under the bed. PW4 took PWI out of that room. PWI cried because of pains sustained from the unlct.wful acts of the Appellant. PW4 took PWI to her grandmother one Sandel who later referred PWI to her parents. The parents of PWI took her to Hospital for treatment. The Doctor who examined PWI found that, PWI had bruises on both parts of her anus, vulva and vagina. The PF3, exhi1?it PE2 revealed that, it was a dangerous harm caused by a blunt Object. In defence the accused person denied to have committed the offence. He called PW2 Tainess Lahisi who testified nothing in support of his denial. This appeal centres on the issues, whether the offence of unnatural offence against PWI (the Victim) was committed? And whether the Appellant committed the said unnatural offence? The evidence on record clearly establishes that PWI was sodomized. The evidence of PWI and PW4 (J esca) is very crucial in this case at hand. The Trial Magistrate Court analysed the findings and the basis of his decision. PW4 (Jesca) gave her account on what had transpired. She confirmed that PWI was sod?mized by the 2 Appellant. Section 130 (4) (a) of the Penal Code, Cap. 16 R. E. 2002, provides to the effect that;- "Penetration however slight is sufficient to constitute the sexual inter course necessary for the offence". The most required evidence in rape case is "Penetration". In the Case of SELEMANI MAKUMBA V. REPUBLIC. CR. APP. NO. 94/1999 (unreported), the Court of Appeal of Tanzania held: "True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent and in the case of any other woman that there was penetration". In the case at hand, the only evidence linking the Appellant with the offence is that of PWI, a child of tender years. A voire dire examination was properly conducted in accordance with the requirement of Section 127 (2) of the Evidence Act, CAP. 6 R. E. 2002. The court found that PWI was a competent witness to testify as she was possessed of sufficient intelligence and understood the duty of speaking the truth. In his submission, the appellant claimed that, the evidence of PWI was not corroborated. On this argument, I have a very simple answer to this. In sexual offences, once the trial Court believes that the Victim of the offence was a credible witness, as it did in this case; corroboration is not required as a matter of law. This might have been the position before the amendment of the said Section 127 of the Evidence Act, CAP. 6 of the laws by Act No. 4 of 3 1998. The amendments on the said introduced subsection 7 that reads:- "(7) notwithstanding the preceding provision of this section, where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender years or of a I victim of the sexual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years, as the case may be the victim of sexual 1 offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfi;ed that the child ; of tender years or the victim of the sexual offence is telling nothing but the truth". i In the present case, the trial court found that PWI, the victim was telling nothing but the truth. It also found her to be a credible witness on the basis of the evidence on record. For that reason I ' have no basis to interfere with such finding. Her evidence alone was sufficient to sustain the conviction of the appellant. In any way, if there was any need for corroboration there is that ample evidence which is available in the testimonies of PW2, Abijan Emmanuel Lyoto, PW3 Moris Mdoe and PW4 Jesca Weston. The evidence of PW4 Jesca Weston corroborated the evidence of the Victim (PWI). The two witnesses are children of tender age. Both of them were on the "locus in quo". Exhibit "PE2" that was tendered by PW3 the Doctor proves the offence of sodomy. 4 As aforesaid, exhibit "PE2" proved that PWI had sustained a dangerous harm on both her private parts the anus and vagina. This is in line with the holding in the case of NGUTIMUKIZA v. UGANDA {1999} IEA 220 that:- Medical evidence showing that the complainant's vulva was inflamed and the presence of sperm in her vagina was sufficient to prove penetration. In responding to the issue of identification, the trial magistrate correctly found that the Appellant sodomized the victim. The identity of the Appellant did not have any speck of doubt, because PWI knew the Appellant before the incident. PWI stated clearly that, Emma came to the place where the victim (PWI) was playing with other colleagues. The Appellant called her and sent her inside his home: This fact is also vivid because it was during the day time. There was enough light to identify each other. They walked and went together to the house. It was easy for PWI to identify the Appellant. He also identified him while on the dock. PW4 Jesca Weston identified the Appellant as the one who appeared while they were playing at Subira's home and took PWI (the Victim) to his house. The eye witnesses were familiar with the Appellant. These witnesses had no difficulty in identifying the Appellant. They identified him by his name because they knew him, and there was enough day light to identify him. Another piece of complaint from the Appellant was the failure to call independent witnesses such as the ten cell leaders or neighbours of the said house, in order to prove whether the said house was the Appellant's house. This Court agreed with the submission of 5 learned State Attorney Miss Prosister, that, the issue here is not ownership of the house, but it was commission of the offence. At page 9 of the proceedings, PW2 the father of tlie victim stated clearly that, "I went to the accused house, and the accused's mother led me inside the room and took out exhibit "PE 1" the tom ! pantie of the victim which was found under the bed. Here, there is no doubt that one of them would h~ve added more I weight to the prosecution case, and in the right circumstances, an adverse inference could be drawn against the prosecution if she would be a material witness. This court referred to the wisdom in the case of AZIZI ABDALLAH VR. (1991) T.L.R.71. In that case, it was held that: 7 I "Adverse inference may be made where the persons omitted are within reach and not called without sufficient reason being I I shown by the prosecution". The Appellant has no suggestion as to what material evidence would come from such witness. In any case the an~wer was elicited by no less a person than the Appellant, when he ,wanted to know why there were no witnesses from the ten cell leaqer or neighbors. The answer is very simple, the issue before the court is not ownership of the house but it was commission of the offence. It must be understood that, the weight of evidence is its cogency or probative worth in relation to the facts in issue. The assessment of the weight of evidence is essentially a matter of common sense. 6 There is a long time maxim in law that, "evidence is to be weighted and not counted''. In the Case of RAMADHANI VR. (1953) 20 EACA 212. The Court said·- ' "It used to be said that there are must be two witnesses, this was a dilution, the evidence of one witness and a confession may be enough....... " The prosecution is not compelled to bring a certain witness before the court; it is upon the Public Prosecutor to identify I potential and ! key witnesses to prove their case. There was, therefore, sufficient reason why no one from the ten cell leader or neighbour could come forward to testify. On the strength of the prosecution case, the trial court was satisfied that there was sufficient and cogent evidence that the offence of I unnatural offence was committed by the Appellant. For the said reasons, I see no justification to disturb the decision of the trial court. The gro_gnds of Appeal must therefore in my opinion fail. I uphold .,;,:.--~--·~ th . ,..-..,.....~T · 0 .,. e Appeal is therefore dismissed . 1,· t-'1 - ,,:z :t ~ ... -- 7 p A.F~~ Judge /' '·~-/ 26/11/2014 7