20151001 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA ( AT MBEYA DC CRIMINAL APPEAL NO.85 OF 2014 (Original Criminal Case No.40 of 2014 from District court of Rungwe Tukuyu BEFORE: J. K. Mhanusi —RM) DICKSON S /0 lEUI., IAPPELIJANT VERSUS THE REPUBLIC ...................................................... RESPONDEN'I' JUDGMENT Date of last Order: 2 1/07/2015 Date of Judgment: 07/08/2015 Dr. M. C. Levira, J The appellant, Dickson s/o Meuli was charged with and convicted of rape c/s 130 (1) (2) (3) and 131 (1) of the Penal Code Cap16 R.E.2002 and sentenced to a statutory sentence of life Imprisonment by the District Court of Rungwe (J.J. Mhanusi - RM). Aggrieved by both the conviction and sentence, the Appellant has come to this Court. Briefly, on 16th day of February, 2014, the Appellant was at his home Bagamoyo area, Tukuyu Town, within Rungwe District Page 1 of 20 and Mbeya Region. As per charge sheet it was around 8.00 am when the victim Tabita d/o Said a child of 5 Years old went to the accused's house to watch the television. The Appellant used that opportunity to rape her the-reby causing serious injuries. The assailant was on the same date (16th February, 2014) arrested and sent to Tukuyu Police Station where he was interrogated on the allegations and on 21.02.2014 he was arraigned before Rungwe District Court to answer the charges against him. The Appellant in his petition of appeal preferred nine (9) grounds. The same are reproduced hereunder. That the learned trial Magistrate erred in law and fact when he convicted him relying on the contradictive evidences of PW3 and PW5 about the first report of an event by PW3 without resolving such contradiction. That Hon. J. J. Mhanusi, erred in law and fact when he concluded that .PW5 (victim) was intelligent enough to give the trustworthy evidence while the voire dire test was not well conducted as required by law. That, the Hon. Trial Magistrate erred in law and fact when he convicted the appellant relying on the evidence of PF.3 without considering that it was an illegal document. Page 2of20 That, the Hon. Trial Magistrate erred in law and fact when he convicted the appellant on the evidence of PW6 who contradicted to other witnesses. That the learned trial Magistrate erred in law and fact when he convicted the appellant relying on the evidence of PW5 which was not corroborated by her brother Sefania whom she alleged to be together on the fateful day. That the Hon. Trial Magistrate erred when he believed that the blood stains seen in the clothes exhibit P1, and P2, belongs to PW5 while there was no any expert opinion (DNA) evidence concerning the same. That, the Hon. Trial Magistrate erred in law and fact when he sentenced the appellant to life Imprisonment while the age of PW5 was not proved to be under 10 Years old as no any birth certificate nor parents of PW5 to prove the same. That the trial Magistrate erred when he ignored his defence case. That, the charge against the appellant was not proved by the prosecution side beyond reasonable doubt. Page 3 of 20 During the hearing of this Appeal, the Appellant enjoyed the services of Mr. Mwakolo learned Counsel, while the Respondent, Republic was represented by Mr. Kihaka learned State Attorney. Mr. Mwakolo opted to argue the nine grounds of appeal jointly. His argument was that, the appellant was improperly convicted, sentenced and ordered to pay five hundred thousand as the case was not proved beyond reasonable doubt. It was Mr. Mwakolo's submission that the age of the prosecutrix was supposed to be proved by tendering of a certificate to that effect since the victim was schooling, so as to establish that she was 5 years old. The learned Counsel submitted further that going by the records of the proceedings at page 31, when PW5 (the victim) was called to testify, the appellant was ordered to go out of the court room and that one Nakunge came to the court room and stood behind PW5 in the absence of the appellant by so doing, Mr. Mwakolo argued that the appellant's right to be heard was denied. The learned counsel prayed this court to treat all the evidence tendered in the absence of the appellant as hearsay. Mr. Mwakolo contended that, the PF3 admitted as Exhibit 'P3' was wrongly admitted as PW 1 and Pw4 who alleged to have examined the victim did not write their names and signatures on the PF 3. Page 4 of 20 Whereas PW1 wrote his name but did not sign, the PF3, was signed by PW4 who did not write his name, it was further submitted that the PF3 has no details as to what extent the within was injured. Regarding exhibit 'P'2 (the gown and under wear) which were found with blood stains, the leaned counsel contended that there was no evidence on records to prove that, the blood stains were of the victim. He averred that the exhibit 'P' 2 was supposed to be established through DNA that the blood stains belong to the victim. With the foregoing submission the learned counsel for the Appellant insisted that the case was not proved to the required standard and prayed this court to quash the conviction and set aside the sentence imposed. Mr. Kihaka, learned state Attorney for the Respondent Republic did not support the appeal. In the grounds of appeal, the learned state Attorney responded to them one after another. Basically, showing that the grounds are and of merit instead he insisted that the appellant was properly convicted on the strength of the prosecution evidence that, proved the charge beyond reasonable doubt. In his submission, he referred this court to the case of Seleman Makumba versus Republic [2006] T.L.R 379 and the case of Abdul Abdul Baadi Timam versus SMZ [2006] T.L.R. 188. Page 5 of 20 In his rejoinder, Mr. Mwakolo, learned counsel for the appellant stressed on his earlier submission and the grounds of appeal. His emphasis was on the age of the prosecutrix that needed proof, the admission of the PF3 as exhibit, the manner voire dire test was conducted, proof that blood stains found on the gown and underwear were that of the victim and the fact that the appellant did not face the victim when the victim was testifying. Before arriving at the conviction, the trial court gravitated on two issues; first, on whether the offence of rape against Tabitha (PW5) was committed and secondly, on whether the prosecution had proved their case beyond all reasonable doubt. After full analysis of the prosecution evidence tendered by witness and the defense evidence tendered by two defenses witnesses DW1 (the accused) and another, the trial court was satisfied that the case was proved to the required standard. After going through the mine (9) grounds of appeal and hearing learned counsels for both sides, I am satisfied that this appeal can be satisfactorily and conclusively disposed of on the basis of grounds one, two, three, five and seven in the memorandum of appeal. On the first ground of appeal, the learned counsel for the appellant argued that the evidence adduced by PW3 and PW5 (the victim) about the first report of an event was contradicting. Page 6of20 The version of the evidence of PW2 was to the effect that on 16/02/2014, when she work up from sleep she noticed that Tabitha's (PW5) clothes were dirty. She told the prosecutrix, who is also her granddaughter to change those clothes. That on the following date, when Tabitha and other children came back from church, she (PW3) noticed that PW5's under pant had blood stains. When PW3 asked her where the blood stains came from, PW5 answered that she got injured. She checked her and found that there was a nole at her vagina and blood stains. When she asked the victim who did that to her PW5 answered that it was Diskson who got motorcycle accident (DW1). The Victim (PW5) Tabitha d/o Said testified in court that on the material day after taking her breakfast she went to Diskson to watch television and that they were only the two of them. When they were watching the television DW 1 (the appellant) took her and injured her at her buttocks (at page 31 of the proceedings). Pw5 stated further that, "He took his penis (dudu) and press it into my buttocks (showing the vaginal area) by saying that [akachomeka huku]". PW5 went further stating at page 32, 1st paragraph that the appellant did the said act while they were at the sitting room. When she went back home she told her grandmother (PW3). With this piece of evidence, I do not see where the evidence of PW3 contradicts that of PW5. Essentially, PW3 described how she noticed the state of PW5's private parts on the next day after PW5 Page 7 of 20 (the victim) returned from church. While PW5 described what transpired on the day of the incident. The principle of dealing with contradictory evidence was laid by the Court of Appeal in the case of MOHAMED SAID MATULA Vs. REPUBLIC [1995] TLR 3. In this case the court stated that where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the contradictions and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter. Given the principle above, had there been any inconsistencies and contradictions, it was the duty of this court to resolve. Having noticed non, I hereby dismiss this ground of appeal for being devoid of merit. The 2nd ground of appeal is to the effect that voire dire test was not properly conducted on PW5, hence, the trial Magistrate arrived at an erroneous conclusion when he opined that the victim was intelligent enough to give the trust worth evidence. Voire dire test is governed by section 127 (1) 127 (2) of the Evidence Act Cap 6 Revised Edition 2002 which provides as follows: "(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 Page 8 of 20 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 spearing the truth" The import of S.127 (2) of the Evidence Act, is that generally all witnesses in criminal matters are competent to testify on oath or affirmation unless the court considers that they are incapable of understanding the question put to them or of giving rational answers to those questions by reason of tender age. However under S. 12 7 (5) of the evidence Act, a child of tender age (fourteen years and below) can testify either on oath or affirmation or not on oath or affirmation. In other words he/she is also committed to give unsworn evidence. The procedure under S. 127 (2) of the evidence Act (Supra) was well elaborated in the case of Mohamed Sainyeye v. Republic, Cr. App.No.57 of 2011. In this case the court of Appeal cited with approval the case of Nyasani s/o Bichana v. Republic (1958) E.A.90 which stressed on the need to comply with s. 127 (2) of the evidence Act. In his submission, Mr. Mwakolo was of the view that the voire dire test was not well conducted because the child of tender age (PW5) after being tested whether she understands, the nature of oath and the duty of telling the truth, the court proceeded to take her oath. With due respect to the learned counsel, nothing was wrong with Page 9 of 20 that. The evidence of PW5 was taken on oath in the purview of S. 127 (5) of the evidence Act, after the court was satisfied that the witness was possessed of sufficient intelligence and understands the nature of oath and the duty to tell the truth. In the Landmark case of Kimbute Otimel v. Republic Criminal App. No.300 of 2011, the Court of Appeal at page 76 and 77, elaborated further on voire dire when it held interalia that; where there is a complete omission by the trial court to correctly and properly address itself on sections 127 (1) and 127 (2) governing the competency of a' child of tender years, the resulting testimony is to be discounted. The court went further and stated that where there is other independent evidence sufficient in itself to sustain and guarantee, the 'safe and sound conviction of an accused, the Court may proceed to determine the case on its merit always bearing in mind the basic duties incumbent upon it in a Criminal trial and the fundamental rights of the accused. I am of the considered view that, in this case, the court properly addressed itself on sections 127 (1) and 127 (2) of the Evidence Act as per page 30 of the court Proceedings, the witness (PW5) was asked questions and she gave answers which were recorded. Then the court commented on the findings of the test. Page 10 of 20 It is sad, however to see, that, having properly, conducted voire dire test to PW5, the court then ordered the appellant (accused) to go out of the court room. This is not a proper procedure expected to be followed by the learned trial Magistrate. The canons of natural justice require that a person must not be condemned unheard. On the same footing. It is against the rules of natural justice, for accused to be outside, in the manner of not being able to hear the evidence adduced against him which consequently will determine his fate. I agree with Mr. Mwakolo that what transpired on that particular day was a denial of the appellant's right. It is important and I find it worth emphasizing that it must always be remembered that in the process of delivering justice to those who seek for it, there is no way it can be delivered without complying with the legal procedures set forth by the law. For procedures are the handmaids of justice. Whereas Article 107 A of the Constitution prohibits courts from denying justice to people by too much adherence to the technicalities of the law, justice must not only be done, but must be seen being done. The only way justice can be seen being done is by adhering to the legal procedures that lead into justice. In the present case, the appellant was curtailed from observing justice being, done. In the circumstances, I agree with the learned counsel for the appellant that, the evidence gathered in such situation is not worthwhile to Page 11 of 20 be considered. Whereas the voire dire test was properly conducted, the evidence of PW5 was improperly received by the trial court. On the 3rd ground, it was Mr.Mwakolo's submission that, the appellant was wrongly convicted relying on the evidence of PF3 without considering that it was an illegal document. During the hearing of the appeal, the learned counsel for the appellant indicated the pitfalls on the PF.3. Having been filled, the person whose name appears in it did not sign, and the person who signed it did not indicate his name. The issue is whether such error is curable or not. Mr. Kihaka while submitting argued that the error is minor. He contended that the clinical officer used the old version form, that had he used the current one, such error could not be occasioned. It should be remembered that a PF.3 tendered as an Exhibit is a supporting evidence. It merely corroborates the evidence already tendered in court. In the trial court, the court was satisfied that the evidence received proved the offence beyond reasonable doubt. Therefore pitfalls on the PF.3 could not count much as to change the decision. Section 240 (3) of the Criminal Procedure Act.Cap.20 R.E.2002 (hereinafter the Act), requires that an accused be informed of his right to call the doctor who filled the PF.3 to come to court and testify. If the accused chooses not to exercise his right, that will not be an issue. In the circumstances of this case, it is not clear as to who attended the victim, as the name and Page 12 of 20 signature are different. This defect is to my opinion serious and entertains a lot of doubt as to its genuineness. In the case of Amos Peter v. Republic Cr. Appeal No.173 of 2004 (CA) Mwanza Registry (unreported), the Court held that, medical evidence was necessary to support complainant's claim that she had been raped. That it was not enough for the complainant to state that she has been raped. However, the mere fact, that the PF3, tendered does not amount to credible evidence, in itself does not vitiate the whole evidence adduced by the prosecution if the evidence is found to be credible and can ground conviction (see, the case of Abdul Abdul - Baad Timan v. SMZ [20061 T.L.R.188). The issue is therefore whether the case could be proved beyond reasonable doubt in the absence of medical evidence. Going by the trial court's Judgment, it is clear that, the learned trial Magistrate did not base his conviction solely on the medical evidence. In fact, he also warned himself of the danger of relying on the PF.3 having noted the above stated defects. As the trial court did not rely on the PF.3 in its conviction as it is alleged by the appellant, this ground of appeal is dismissed for lack of merit. In the fifth ground of appeal, as cushioned in the memorandum of appeal, the appellant averred that he was wrongly convicted by the trial court, basing on the evidence of PW5 (the victim) which was Page 13 of 20 not corroborated by her brother Sefania whom she alleged to be together on the fateful day. It is a settled law, that in sexual offences, the court should warm itself of the dangers of acting on uncorroborated evidence of the complaint. This was stated in the case of Shiku Salehe v. Republic [1987] T.L.R. 193. Chipeta, J (as he then was). However, this rule applies where the offence of rape has been committed against an adult (see the case of Republic v. Hassan Said [1984] T.L.R. 226). In case of a child of tender age, as it is in this case, the principle is laid down in the case of Said Hemed Vs. Republic [1987] T.L.R. 193; The court of Appeal inter alia stated: "In terms of S. 127 (2) of the evidence Act. SWOrn testimony of a child of tender years does not need corroboration. It can be treated as any other testimony, and it could form the basis of conviction." PW5 (Tabitha d/o Said) who is the victim of the offence in this case, Gave her evidence on oath. As per the above principle, it was not mandatory that her evidence be corroborate. However as opposed to the learned counsel for the appellant's submission, that the evidence of PW5 was not corroborated, the same was corroborated by the evidence of PW1, (Ambele s/o Mulangala), PW2, (Ana d/o John), who examined the victim and found that PW5 was invaded in her private parts. The Act that led to perforation of her vagina. Page 14 of 20 It suffices to state that, the evidence of PW5 was well corroborated, and in law, there is no hard and fast rule that the person whom the victim alleged to be with, at the time the offence was committed, should be the one to corroborate her evidence. In the circumstances, though, the fact that one Sefania having not testified creates doubts since PW5 said that she was with him on the day of the incident and at the scene of crime, that alone does not fault the evidence adduced by PW5, based on the principle laid down in Said Hemed v. Republic (supra). The fifth ground is devoid of merit as well. There was a question as to proof of the age of the victim (PW5) by certificate or through the parents of the victim, that PW5 was 5 years old when the offence was committed against her. I concur with Mr. Mwakolo that regarding the seriousness of the offence and stiffness of the sentence statutorily imposed on the assailant of rape, the age of the victim should always be certain so as to avoid miscarriage of justice. Having so stated, I am not in agreement with the learned counsel for the appellant however on his ground that the age the victim (PW5) was not certain. It is clear from the records that PW5 was at Kindergarten; this is according to her answers when voire dire test was conducted (at page 30 of the court proceedings). The age of PW5 was also proved by PW3, Grina Kasala, who lives with the victim together with the victim's mother. In the Circumstances it Page 15 of 20 can not be said that we need a certificate to prove that she was five by then. It is however a question of commonsense, that a kindergarten pupil under normal circumstances cannot be above nine (9) years, unless it is a special case. This ground is dismissed for being baseless. Regarding exhibit 'P2' which was a gown and underpant contained blood stains. PW3, the victim's grandmother well stated that, her granddaughter wore the clothes and she noted the blood stains upon removal of the clothes. There is no any other explanation, than the fact that the blood stains comes from the one who wore the clothes. The immediate question that arises is what does/should the court do where there are discrepancies and or loop holes in the prosecution evidence, as it is in the case at hand? The answer is provided in the case of Jeremiah Shemweta Vs. Republic [1985] TLR 228, where Sisya, J, stated: "The discrepancies in the various accounts of the story by the prosecution witnesses give rise to some reasonable doubts about the guilt of the accused. The court has to make sure that the doubts created are resolved for the accuser's benefit". Page 16 of 20 The discrepancies however must be minor in my considered opinion, short of that, the principle that the prosecution must prove its case beyond all reasonable doubt will not be dealt with fairly. Where as it is undisputed that the victim was raped, based on the prosecutrix story and the bloodstains found in her clothes together with the evidence gathered in the PF3 which was carelessly filled, it remains questionable whether it was the appellant who raped her. In her version of the evidence, PW5 said that while watching video at the appellant's house they were only two of them. PW5 and the appellant. And that the appellant used that opportunity to rape her. When cross-examined by Mr. Luvinga, the learned counsel who represented the appellant at the trial, she said: aWhile we were at Dick's house we were two of us and Sefa was at home". This is for sure a contradiction. If at all Sefa was with her, how did the appellant manage to rape her?. It is also surprising that the court opined after conducting voire dire test that the victim is possessed of sufficient intelligence and knows the nature of oath and the duty to tell the truth in such piece of evidence above. It was expected that the said Sefa was the one to clear such doubt, yet he was not called to testify. The story does not end there. The Page 17 of 20 PF.3 which was tendered and admitted "exhibit P1" at the trial had a lot of shortcomings as already pointed out here-in above. To add further, whereas the evidence of PW5 entertains a lot of doubts as to its truthfulness, the same was tendered in a manner not acceptable in law. The appellant was ordered out of the court room, so that he could not hear what the victim testified. It was stated in the case of Mohamed Said Matula v. Republic.[1985] T.L.R. 3, that where the testimonies by witnesses contain in-consistencies and contradictions, the court has a duty to address the in consistencies and contradictions and try to resolve them where possible; else, the court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter. In my considered view the contradictions and in consistencies in this case go to the root of the matter, bearing in mind that, the evidence of the victim is central in establishing whether the appellant committed the offence or not; All other witnesses are just collaborating PW5, evidence. It is worth noting that, the appellant was not caught in fragrant delicto. The whole evidence was circumstantial. The principle on circumstantial evidence is well settled and trite that where circumstantial evidence is relied on, the principle has always been Page 18 of 20 that, facts from which an inference of guilt is drawn must be proved beyond reasonable doubt? In the case at hand, with all the inconsistencies contradictions and procedural irregularities it cannot be said that the case was proved beyond reasonable doubt. The charge against the appellant is very serious and attracts very serious punishment to anyone found guilty. I therefore order re- trial. The records are to be remitted back to the District court of Rungwe Tukuyu to have the matter tried de-novo before another magistrate of competent jurisdiction. Conviction is quashed and the imposed sentence is set aside. It is also the order of this court that the appellant shall remain in prison as a remand prisoner pending his being transferred to Rungwe for re-trial. Order accordingly. DR. M. C. LEVIRA, JUDGE 01/10/2015 Page 19 of 20 I. Date: 01/10/2015 Appellant: Present For the Appellant: Absent For the Republic: Miss Hanarose - State Attorney C/C: Mr. H. Mbojela. Court: Judgment delivered in the presence of Ms. Hanarose for the Republic, Respondent and the appellant. Right of Appeal explained. T ' -p N / / ( :y \ \ U .- Dr. M. C. Levira, 1• ___7 Judge, 01/10/2015 Page 20 of 20