20150220 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY ~ AT DAR ES SALAAM HC CRIMINAL APPEAL NO. 52 OF 2014 (Appeal f_r~.m the decision of the Mkuranga District Court in Criminal Case No. 10 of 2008) SAID YUSUPH KISOMA ......•••...•.....•.......•..... APPELLANT Versus THE REPUBLIC ......••.......•.......................... RESPONDENT Date of hearing: 18th February, 2015 Date of Judgment: 20 th February, 2015 JUDGMENT Feleshi, J.: The appellant was charged before the Mkuranga District Court with Unnatural offence and Unlawful Wounding; contrary to sections 154 (1) (a) and 228 of the Penal [Code, Cap 16] respectively, of which he was consequently convicted and sentenced to thirty (30) and two (2) years imprisonment respectively, and in addition was ordered to pay compensation of shs.l, 000,000/= to the victim (PW.2). It was alleged that on or between lih February,2008 at about 02:00hrs at Malela Village within Mkuranga District in Coast Region, the 1 appellant did unlawfully have carnal knowledge of Rehema d/o Mohamed against the order of nature. In respect of the second count, it was alleged that on the same date, time and place he willfully and unlawfully wounded the said Rehema d/o Mohamed on her both two arms by using a knife. In convicting and sentencing the appellant, the trial court solely relied on the evidence of No.C.9476 S/SGT Gabinus (PWl), Rehema d/o Mohamed (PW2) and PW2's PF.3 (Exh.P.l). Incidentally, those were the only prosecution witnesses. PWl's evidence mainly was on how he dealt with the case at Vianzi Police station before he forwarded it to Mkuranga District Police office. His involvement therefore was limited to the reception of the complaint, re- arresting the appellant and issuance of PF.3 to both PWl and the appellant. PW2 tendered her PF.3 which was admitted as Exh.Pl. The contents of Exh.Pl indicate that PW2 upon examination was found with cut wounds measuring 4cm long on both arms which constituted dangerous harm caused by a knife. However, I noted that the doctor who attended PW2 did not date his document (Exh.Pl). It is also conspicuously noted from the record that the trial magistrate before admitting Exh. Pl did not bother to inform the appellant of his right to have the medical officer who prepared Exh.Pl summoned for cross examination. In his petition of appeal the appellant has chiefly challenged the trial court; for having admitted and acted on the PF.3 (Exh.Pl) that was admitted without complying with section 240(3) of the Criminal Procedure 2 Act, [Cap.20 R.E.2002]; for relying on the evidence of PW2 who did not identify him at the scene; for not considering his defence, and; for not paying regard to the prosecution's failure to bring evidence of witnesses who arrested him at the scene. Mr. Nassoro Katuga, the learned State Attorney who represented the Republic, the Respondent, supported the appeal. Like the appellant, he challenged the admission by the trial court of the PF.3 (Exh.Pl) without satisfying the mandatory requirement set out by section 240(3) of the Criminal Procedure Act (supra). On this, he cited the case of Ally Haji v. Rep., Cr.Appeal No.45 of 2011 (Unreported decision of the CAT) and urged this Court to expunge it from the record. He also faulted the trial court for subjecting a 17 years old witness (PW2) to a voire dire test, a statutory procedure which under section 127(2)&(5) of the Evidence Act, [Cap.6 R.E.2002] is invoked only when witnesses of tender age (below 14 years) are called on to testify. And, that PW2 was invited to give unsworn evidence contrary to section 198(1) of the Criminal Procedure Act (supra). The provision sets out a requirement that every witness in a criminal cause or matter must be examined upon oath or affirmation in accordance with the provisions of the Oaths and Statutory Declarations Act. He also submitted, that, dreadful as it was, PW2's unsworn evidence lacked the requisite corroboration. To that effect, the learned State Attorney cited the case of Nguza Vikings @ Babu Seya and three others v.Rep. Cr.Appeal No.56 of 2005(Unreported decision of the CAT). In view of those upshots in the PF.3 (Exh.P.1) and 3 PW2's evidence he urged this Court to discount the deficiencies obtaining in he prosecution evidence in favour of the appellant. Having carefully examined the court record in the light of the grounds of appeal and submission made by the learned State Attorney above, this court's task is to find out if the appellant's conviction in both counts and sentences thereof are well grounded. Based on the discussion that will follow shortly, I have to restate boldly that one of the extraordinary task of this Court on appeal, being the first appellate court obliged hear appeals in the form of re-hearing, is to satisfy itself whether the lower court in analyzing and making findings on the evidence presented at the trial paid regard to the principle of standard of proof set for criminal _cases, that is, proving a case beyond any reasonable doubt. It is in view of that direction, I subscribe to the position fronted by both the Appellant and the Respondent that the available evidential material in this case are short of convincing me that the prosecution case under examination was proved beyond any reasonable doubt, that is, left no doubt that it was the appellant and not any other person who committed unnatural offence and wounding to PW2, if at all, the two offences were committed as alleged by PW2. First, as correctly submitted, the flaw obtaining in the PF.3 (Exh.Pl) reduces its evidence to nothing. The law and the chain of authorities on this aspect have been consistent on the outcome whenever section 240(3) of the Criminal Procedure Act (supra) is not adhered to, that is, to expunge the medical report in question (see also: Deogratius Beno v Rep, Cr. 4 Appeal No. 166 of 2005, Dismas Kabaya Milanzi v Rep, Cr. Appeal No. 218 of 2005, Alfeo Valentino v R, Cr.Appeal No. 92 of 2006, Joseph Mkumbwa and Samson Mwakagenda v Rep., Cr.Appeal No.94 of 2007, Juma Bushiri v Rep, Cr.Appeal No. 485 of 2007 Thomas Mlambivu v Rep., Cr.Appeal No. 134 of 2009, Sonda s/o Deus @ Manyombi v Rep., Cr. App. No. 75 of 2009 and John Choroko v Rep, Cr.Appeal No. 23 of 1999 (all CAT unreported decision). In the case of Liku Charles @ Ngeleja v. Rep, HC Cr. Appeal No. 192 of 2013 (Tabora Registry-Unreported) this court reminded law actors to adhere to the statutory requirement set out in section 240 of the - Criminal Procedure Act (supra) as per the binding terms of the statute as well as the above authoritative decisions of the Court of Appeal (revisit: Dismas Kabaya Milanzi's case (supra) and Juma Bushiri's case (supra)) which underlined that the main objective enshrined in the section of law is to safeguard the rights of accused persons and generally deter injustices to parties. As there is no choice to enforce and practice the law and its best practices now applicable, I hereby expunge Exh.Pl from the court record and remind again law enforcement agencies to be of great help to the court to attaining the objective of section 240(3)-(supra). Furthermore, I feel also indebted to put to light that the attack against the Exh.Pl must be extended to its contents even if none of the parties raised this point. As the offence of unnatural offence was the main complaint it looks more absurd to me that Exh.Pl, whose contents have been summarized above, is quite on what did the medical officer observe 5 on PW2's genital organs. In the absence of medical examination report showing how PW2 had suffered from the unnatural offence on the incident that was reported to the police and to the hospital within twenty four hours, one asks, what then convinced the trial court to hold that PW2's grave complaint was established beyond any reasonable doubt? On my part, since I have held that Exh.Pl did not show findings that could help the court to establish the ingredients of the offence of unnatural offence, it was improper, for the trial court to believe PW2's bare accusations and convict the appellant. Secondly, I subscribe to Mr.Katuga's submission on the misdirection the trial court had on the invocation of section 127(2) of the Evidence Act (supra). It is plain clear that voire dire test was not a prerequisite for a 17 years old witness. As PW2 adduced unsworn evidence her evidence therefore just required corroboration. After indicating that PWl's evidence was not on matters that happened at the scene and after expunging Exh. Pl from the record there is no doubt that PW2's evidence lacked corroboration and it was unsafe for the trial court to convict and sentence the appellant based on that evidence. For avoidance of doubt, I closely scanned PW2's evidence with a view to satisfying myself whether she was a reliable and credible witness. I did that because the appellant attacked her evidence against his identification at the scene of crime, and as I have held above, there is no medical report telling us whether her genital organ was subjected to the grave unnatural 6 offence mounted against the appellant. Perhaps, let me reproduce part of her evidence: XD by PP: I recall that on 12/2/2008 I was at Malela. I was at my husband namely Masoud Rajab. While there asleep in our home (me and my husband) immediately entered one who (sic) came and did have carnal knowledge me against the order of nature. The door had no lock but we used nails to lock it up. Upon being so sodomized I got up and found the rapist on the bed I got hold of his T-shirt. I shouted and my kid and husband was (sic) also on bed. People from different angle called and contained the accused who was ready to run away. While struggling with me the accused stabbed on my both hands. On arresting the accused he was forwarded to the Police. I was issued with PF3 for medical examination and treatment. I could not see him as I was totally confused. He was arrested and forwarded to the Police before I was sent there. XXD by Accused: I am testifying what I have eye-witnessed. I don't know who did have carnal knowledge me against the order of nature. It was in the night I could not easily see and identify him. It was a dark night. However, I was confused as I oozed blood in both hands. Rxd by PP: This accused in dock is the very one who was apprehended by those who called at the scene. He was apprehended soon after quarrelling outside my house. The accused in dock is the very one who did have carnal knowledge me against the order of nature. From the foregoing evidence, it is crystal clear to me that PW2's testimony does not meet the requirements set out by section 62 of the Evidence Act (supra) which amplify that court should rely on oral and direct evidence which naturally require evidence to address the following scenarios: 7 (a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; (b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; ( c) If it· refers to a fact which could be perceived by any other sense, or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; (d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion or, as the case may be, who holds it on those grounds: In my opinion, with those four forms above, PW2 was supposed to affirm on what she saw happening to her since she told the court that she eye-witnessed the incident. By any stretch of imagination, I am not at one page with the trial court that PW2 was a reliable and credible witness to rely on. She is a kind of a witness who put the positives and negatives together and failed to resolve her own contradictions on overt and covert matters. She is the one who said the accused is the very one who perpetrated the offences but she shortly turned round and said she could not identify her assailant because of darkness and confusion. On covert matters, she could not tell how the unnatural offence and wounding could be committed to her whilst on the very bed where her husband and a baby were sleeping. Lack of answers to those questions may easily tell why her husband (if any) did not turn up to give his testimony. Her testimony, therefore, is of unreliable and incredible 8 witness and in my respectful opinion, 'it failed to prove the case beyond any reasonable doubt. As a result, her complaint to the Police, stirred up a criminal trial whose proceedings started on 14th February, 2008 and ended on 2ih July, 2009 and to the date of this judgment has deprived the appellant's freedom for about seven years. These are the bad legal practices that our law actors must collectively condemn and avoid possible reoccurrences if we are to foster our socio-economic wellbeing. For the reasons stated hereinabove, the appeal succeeds. I accordingly quash the conviction and set aside the sentence and the compensation order. I further order that unless the appellant is otherwise lawfully held, he should be set free forthwith.