eliutery mwisa vs republic 2015 tzhc 2214 20 may 2015

IN THE HIGH COURT OF TANZANIA AT IRINGA DC CRIMINAL APPEAL NO. 41 OF 2014 (Originating from Njombe District Court Criminal Case No. 131 of 2008) ELIUTERY M W IS A -------------- APPELLANT VERSUS THE REPUBLIC------------ RESPONDENT 06/05/2015 & 20/05/2015 JUDGMENT KIHWELO, J . Before the Njombe District Court, the appellant Eliutery Mwisa was arraigned for the offence of rape Contrary to Section 130(1) (e) and 131 of the Penal Code Cap 16 RE 2002. He was found guilty as charged and sentenced to life imprisonment under Section 131(3) and 131(2) of the Penal Code. It was alleged by the prosecution that on 27th February, 2008 about 18:00 hours at Isimani Village within the District and Region of Iringa the appellant had carnal knowledge of one Shukuru Lugwa l aged two years. The prosecution summoned five witnesses to prove the case while the appellant summoned four witnesses to prove his innocence. At the hearing of the appeal the appellant appeared in person and defended for himself. The respondent Republic had the services of Mr. Alex Mwita, learned State Attorney. The appellant filed in court a five (5) point memorandum of appeal. However, the said grounds of appeal can be crystalised as follows 1. The trial court convicted the appellant on the strength o f the evidence which did not prove the case. 2. The trial court wrongly relied on the evidence of PW3 which was taken without conducting Voire Dire. 3. The trial court wrongly relied on the hearsay evidence o f PW2 in convicting the appellant. 4. The trial court wrongly convicted the appellant by relying upon the evidence o f PW2 and PW1 who were daughters of PWl. 5. The trial court erred in accepting the expert opinion o f PW4 and PW5. 2 The appellant being a layman did not have much to say in support of his appeal. He simply requested the court to adopt his memorandum of appeal as part of his submission. Mr. Mwita on his part supported the appeal on account that there were certain irregularities committed by the trial court. In the process his submission focused on ground number two and ground number three. Arguing in support of ground number two he supported the appellant by contending that the trial court erred in arriving at conclusion based upon the evidence of PW3 a child of 21/2 years and without conducting a VOIRE DIRE test as required by Section 127 of the Tanzania Evidence Act Cap 6 RE 2002. In relation to ground number three Mr. Mwita submitted that the trial court erred in basing its conviction on the hearsay evidence of PW2 to PW3 in which PW3 (the victim) said to PW2 I have been injured by Babu Mkude from which a mere inference was drawn that Babu Mkude was the victim, which in essence raised a reasonable suspicion as to who exactly raped the victim PW3. Mr. Mwita contended further that the trial court ought to have warned itself on the danger of relying the conviction on the evidence of a child of tender age which was not corroborated. The main issues for consideration in this appeal are as follows:- 1. Whether or not the trial court conducted a VOIRE DIRE test before taking the testimony of PW3. 2. Whether or not the evidence on record was sufficient enough to warrant a conviction against the appellant. It is apparent clear from the proceedings and judgment that the following is what transpired as regards testimony of PW3. The learned trial magistrate had the following to say at page 9 of the proceedings; “Shukuru Lwaga 21/2 years, do not understand the meaning of oath and so is not swomed (sic).” Thereafter the learned trial magistrate went on to say at page 3 of the judgment; uthe victim Shukuru Lwaga, 21/2 years, after Voire Dire test, on her unsworn evidence Since this is the first appeal I have decided to re-appraise the evidence, (see Hassan Mzee Mfaume V Republic [1981] TLR 167). 4 The provision which governs Voire Dire test is Section 127 (2) of the Evidence Act, Cap 6 RE 2002 which provides:- Where in any criminal case 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 justify the reception of his evidence, and understands the duty of speaking the truth. The law on the need and how to conduct a Voire Dire test is settled. There are numerous decisions made by this court and the Court of Appeal of Tanzania underscoring the need to conduct Voire Dire test in order to establish whether the child is possessed of sufficient intelligence and understands the duty of speaking the truth. The Court of Appeal of Tanzania in Mohamed Sainyeye V Republic, Criminal Appeal No. 57 of 2010 (unreported) cited with approval the decision of the Court of Appeal of Eastern Africa in Nyasani Bichana V Republic [1958] EA 90 in which the court stressed the need of complying to Voire Dire test. It stated:- 5 “It is clearly the duty o f the court under that section to ascertain, first whether a child tendered as a witness understands the nature of oath, and if the finding on this question is in the negative, to satisfy itself that the child is possessed o f sufficient intelligence to justify the reception o f the evidence and understands the duty o f speaking the truth. This is a condition precedent to the proper reception of unsworn evidence from a child, and it should appear upon the face of the record that there has been a due compliance with the section. ” Unfortunately, however, the learned trial magistrate did not conduct the Voire Dire test as required by Section 127(2) of the Evidence Act, Cap 6 RE 2002 or at all. Hence the evidence of PW3 should expunged from the record. Under the circumstances of this case I can state with certainty that the provisions of Section 127(2) of Cap 6 were not complied by the learned trial magistrate. Given the totality of the evidence, I am satisfied that the case against the appellant has not been proved beyond reasonable doubt. 6 In the event, I allow the appeal, quash the conviction and set aside the sentence. The appellant is to be released forthwith from prison unless otherwise lawfully detained. P. F. KIHWELO JUDGE 20/05/2015 Right of Appeal is fully explained. P. F. KIHWELO JUDGE 20/05/2015 7