20160229 TZHC Dar es Salaam1

ll IN THE HIGH COURT OF TANZANIA DAR ES SALAAM REGISTRY CRIMINAL APPEAL NO. 64 OF 2015 (Original Criminal Case No. 127 of 2013, District Court of Bagamoyo at Bagamoyo) CHARLES JOSEPH vs THE REPUBLIC ~~•' W.B. KOROSSO, J. Charles Joseph being ;:. District Court of Bagamoyo (Hon. ber 2013, whereby he was convicted e) of the Penal Code Cap 16 R.E 2002 .~onment and ten ( 10) strokes of cane. Brief from the prosecution case on record are that, on the eter, who was a resident of Kerege, left her home to fetch water, ft her daughter, one Rose Seif playing. On returning back home Agnes Pet e having an orange o her hand and she told her mother (Agnes Peter) that "Mama mjomba Chafe amenipa chungwa ila amenichokoa huku (while pointing at her vagina) na uchi wake umeniumiza", translated un officially it meant " Mom, uncle Chale gave me an orange but he did something to my vagina pnd his male thing has hurt me". 1 ~Ihe_ mother pr.oceeded_to examine_Rose after_ undr.essing_her. and_she managed_to_ observe her panties to have bloods stains and sperms on her. thighs and her vagina had a. cut wound. Agnes traced Chale on finding him washing clothes, she rushed to Rose's father at his place of business, they then went to the Village Executive Officers _office, wait~d for him to finish his businesses and then reported the incident. Militia men were sent to arrest the accused/appellant. The child Rose was sent to the hospital after getting a PF3 and examined and received requisite treatment. . , -,,1.l ' ' ,, In the trial Court, the appellant had pleaded not guil conviction the appellant filed an appeal against the ,. Judgment was delivered on 16th of December 2 the 20th of December 2013, this is in ac, mp of the District Court of Bagamoyo showing the date t!]t~ No s show that a Copy of Judgment was received b 015Appeal was filed on the 20th of May 2015. Ther · '. · ot quarrel with the fact that the ~ s of appeal but for the purpose of this Court, the said _ in law and fact by not assessing the veracity of Witne and P 4) having regard to their testimonies as_ regards the t took place and on examination of the victim and the , as a basis to support conviction. agistrate er.red in law and fact by not drawing an adverse inference against the prosecution for not summoning to testify in Court, the police officer who issued the PF3 to PW2 and the investigator of the case. iii. That the Learned Trial Magistrate er.red in Law and fact by convicting the appellant where the prosecution had failed to prove the guilt of the appellant beyond reasonable doubt for the offence charged. 2 During the hearing of thisJppJ,al, the appellant was unrepresented_and the Respondent__ _ Republic was represented by Ms. Mosie Taima, learned State Attorney. The appellant had nothing further to add and prayed to the Court to taken in consideration the grounds (" of appeal presented in his filed Petition of Appeal but also seeking leave to respond after the Respondent Republic had presented their case. The Respondent Republic decided to compound the grounds of appeal filed and decided to compound the grounds and to remain with one ground, that , ,iBrosecution had failed to prove its case beyond reasonable doubt, a grou · · ~- ·t rival contentions. From their submissions it was clear that tli support of the Conviction and Sentence drawn b the appellant. Ms. Mosie Taima submitted that the g re of the witnesses for the prosecution to highlight eged occurred, that this ground has no merit citing t yo and others vs. Republic (1978) LRT 78, where,. is not infallible. A witness is not expected to be elling his story. It was therefore the xpected for a witness to remember every The ith regard to the remaining grounds of appeal, the d th - case against the appellant beyond reasonable doubt g facts. That the victim, PW2 did identify the person who did the · informed her mother that it is the appellant who had raped her. That this fact was confirmed by the Doctor- PW 4 who had examined the victim and confirmed the fact that the victim was raped. That the admitted PF3 also supported the said contention. Thus, the Republic prayed for this Court to uphold the Conviction and Sentence against the appellant as set by the trial Court submitting that the prosecution had proved their case. 3 The appellant had --- --- - no rejoinder ----- - to the submi~slons by __the_Re_p_u.blic_submitting that-he had - - already stated everything in his grounds of appeal submitted. In determination of this appeal this Court will consider whether the evidence presented by the Republic was enough to sustain a conviction on tlie charges facing the appellant and wheth~r the sentence given was legal and commensurate to the charges for which the appellant was convicted with. In convicting the appellant, the trial Court considered the eviden · ten year old and the alleged victim of the incidence, a , supported py the evidence of PWI, Agnes Peter, - r mot _ reported the incidence of being raped to her mol, Kassim, th,e Village Executive Officer for colls4dered, having testified that she received the complaint from P · - ·1na Kingwande on the 18/5/2013 at about 11.30 hrs W3 had been raped by the appellant. That they had g· 2 alleged that when Charles, the appellant was broug ogated he had confessed by saying ipitia tumalize hapa hapa", unofficially have committed a wrong, it is the devils Thet ied on the evidence of PW4, David Mina who testified as an · , who testified that on the 18th May 2013 at about 1 l.00hrs years Rose Seif accompanied by her parents and examined her, at there as a man who entered her vagina with his" dudu". That on examination of the child, she had no hymen and when her vagina was touched she complained of being in pain. That a hymen can be removed by a hard object from outside to inside (external forces), such as penetration by a hard object. The Trial Magistrate also considered the evidence of the appellant Charles Joseph in defence who had stated that on the 18/5/2013 morning he was at his house cleaning the 4 house and surroundi~gs _then he l~ft. At_ nQ_on he caqi~PJ!Ck_home, and_shortly~thereafter- he was arr~sted. He concede_d to have been interrogated at the VEO office, that soon after militiamen, came with the father of the victim but that he had denied participation in the alleged incidence but that later he was forced to confess that when he confessed. The trial magistrate after considering the evidence, addressing the issue on rape found the witness were cred~ble and that there evidence left no doubt and also on consideration of the applicable the law proceeded to convict the appellant on the of to the sef\tence given, the Trial Magistrate considere applicable law before meting out the sentence to the app Having said that this Court finds that the evidenc court, has the responsibility of ensuring t ~ · t · and mandatory procedures required i; · the , - s. It is also trite to remind ourselves that, the stand - absolute certainty. The stand by , , rosecution's evidence is that no other logical explanati -~ except that the accused committed _w 's presumption of innocence. If a trial - if his/ her only doubts are unreasonable rged its burden of proof. It does not mean that no doubt ·1t; If only means that no reasonable doubt is possible from prosecution has to provide the evidence to show the a o · ·:nee charged. d second grounds of appeal, the evidence before the Trial Court to prove the prosecution case against the appellant was that of first, PWl, Agnes Peter, the mother of the victim, Rose Peter. She narrated that the date of incidence was 18/5/2013 and about 11.00hrs when she left Rose in the house playing and on coming back from fetching water, that is when, Rose informed her she had been raped in wording we have already quoted above hereinbefore. Rose had told her uncle Chale had given her an orange and put his organ into her vagina- pointing out the vagina. PWl found Rose, 5 wi!~ the ?range on her hand. PWI c1_~0 t~stified tha( she_ was pre_sent lctter~on after th~)"__ _ had already reported the matter to the VEO, and the appellant had been apprehended, during the interrogation of the appellant. That the appellant had confessed to have given her an orange and had carnal knowledge of the child arid apologized anc:I sought for forgiveness stating he had been influenced by the devil/satan. PWI evidence also narrates the fact that Rose was taken to the hospital via the Police Station where they were given a PF3 form, During cross examination, PWI never her testimony in examination in chief. Habiba Kassim, was PW2, a Village Executive Officer the time she also states it was around 1 l.00hrs tij:.n whil - Kingwand~ came to her office accompa,. 1fe, PW 1 and their daughter Rose, complaining that Rosee}lad be _ ~\ PW2 directed militia men to arrest the appellant, that ant was astonished and wanted to escape, and when ant he had admitted doing the deed and ~ought forg · nde, ten years old, and the Court ions the Court proceeded to find that ,· t she did not seem to understand the meaning of an _is finding being satisfied that the Voire Dire was properly ed the questions geared to examine her level of intelligence. PW3 wh . PW2 in error in a typed version, gave evidence that she lived at Kerege CCM with her mother, Saumu and her father. That she attends school and was in standard Two. She stated that Charles gave her an orange at his house when he was washing his clothes "Akanichokoa na uchi wake". The Court recorded that PW3 pointed at her vagina when saying this and that this was done in his house and also that the witness pointed at the appellants private parts when saying "uchi wake". When cross examined by the appellant, PW3 stated that the appellant gave her an orange, and that he 6 I 1_; ____ was_\Vashi_ng his clothes. '[h<tt th_~})p~Jlant liv~_s at their __houJ;e with_Bibi Pesa._That_the ____ appellant "!:lndressed her underpants and trouser then he invaded her private parts. When asked furtp.er by the Court she stated "Charles alichokoa tukiwa kitandani kwake and that she felt bad. David Mi11ja, a doctor at Bagamoyo Hospital was PW4, gave evidence that on 18/5/2013 around 1 l{00hrs while at work a child aged 10, Rose Seif arrived at the hospital and he examined her the examination revealed that her hymen was out and she was complainip.g of pain in the vaginal area. He also tew " -, _d the recorded ~s saying he was told the incident occurred a da. e~t Exhibit Pl, the PF3 shows that it was issued on t - the same date. It states no hymen seen a •1': rapmg. The appellant disputes the ti the alleged incidence occurred, he did not dispute confirmed from the facts not disputed in the prelimi _ :act that the accused was arrested on e Police station Mapinga. Most of the .00hrs as the hours for the alleged rape, ,.@ing to _,,,,,~~e hospital. Bearing in mind the fact that all the witnes d t - ;;tct that individuals have separate ways of recollecting info -ting his Court finds this not to be a major issue. The underlying vidence states on 18/5/2013, the appellant, Charles, who was , , sexually attacked the victim, a ten year old girl. In his def~nce, the appellant testified that on the 18/5/2013 in the morning hours he was cleaning at his house. At noon he left home and went to find income and when he reached home the ,,people came at his house, some militiamen they informed him he was required at VEO offices and he went and on arrival there he was interrogated. On arrival of PW3 and the f£1ther of PW3, and on being asked whether he had met PW3 that day he had 7 - denied th~ fact nor to allegations he had raped- her. The appellant also stated he was forced to ponfess, but he did not express what force was used, but stated that he insisted that he di~ not rape the girl. Later he was sent to the Police station with the VEO letter. He deniep having committed the offence charged. When cross examined by the prosecuti?n he revealed that he knew PW3 Rose Seif before the date of the arrest, since they are q.eighbours, and she used to pass at this house but did not enter his house and that she knows her parents and there is no any grudge between~ m. The Court notes that though th~ type written version states that the appellant was addre ~ ·- in terms of section 210 of the Criminal Procedure Act, Cap 20 R.E 2002, t , ws the appellant :was addressed in terms of section 231 of Noverqber 2013 prior to calling him with a maµdatory provision. The Charges facing the appell 130(2)(e) of the Penal Code, Cap 16 R.E 2002 whic •f!,tnmits the offence of Rape if he has sexuaJ intercourse under eig~teen years of a --- • i his wife who is fifteen or more years of age and is n ing at this section it is clear that it is prove the age of the victim. This Court having that she is ten years old and a student of standard two, _oborated with that of PW4 who stated that he examined a child to establish that the victim was below eighteen years but us adequately covered by the quoted section. Therefore, this Court having made a finding that it will not depart from the findings of the Trial Magistrate in finding that the prosecution witnesses were credible and that any inconsistepcies in the timing were minor and did not go to the root of the matter, bearing in mind tqe date is the one stated from the oral evidence of PWl, PW3 and PW2 and also Exhibit PI the Court finds that the grounds by the appellant on this issue has no merit. The Cout1 finds enough corroboration on the evidence of PW3 from that of PWl, on the 8 - - - -- - -issue-of the_orange_which ·. ': _sh~ _w~s_fQtm<! wi!!i_a!).d_ s!J.e- had expressed -·- -- - - - was-- given - - to her - - - --~ - - by - - -- - - -- the appellant, the issue that she had left the appellant washing clothes, a fact also contende4 by PWI that she found the appellant washing clothes when she went after - PW3 had informed her of the rape. The fact that PW3 had informed PWI of the incidence immediately she came home and according to PWls testimony, she found blood stains in '1 the underpants of PW3 and some seamen. The rape was also confirmed by PW4 and Exh P 1. It is ~ Courts findings that, the appellants denial is ju~~ afterthought and lies bearing it1 mind the evidence of Prosecution witnesses. It should ~lso be understood that the duty of calling wit -· person _who alleges a fact and who thinks the witness wi~~ .ist the defence cJted the absence of investigators sued the PF3 form as an issµe which the Court should · dre , se inference for the prosecution failure to call them · t to understand that the duty to Cflll witnesses or to b... . ase for prosecution lies on the prosecution itself. Th · ution on what evidence to bring to section 143 of the Evidence Act, no particular case for the proof of any fact. cases. In the case of Gabriel Simon Mnyele v• ... under section 143 of the Evidence Act (Cap 6- quired to prove a fact" take in consideration that, despite the above position, it is also the law (, he Evidence Act) that the court may draw adverse inference in certain circumstances against the prosecution for not calling certain witnesses without showing ;;my sufficient reasons - See Aziz Abdalla v. Republic (1991) T.L.R. 71. Bearing the circurpstances of this case, the Court finds that with the evidence in hand, failure to call the iqvestigator and the Police officer who issued the PFJ form did not weaken the prosecution case nor was it in any way prejudicial to the case for defence to warrant this 9 \. ) ' Court to praw an adverse inference, in any case the defence was free to call the relevant witnesses·to testify on their side if they so desired. II?- the ev~nt, We find that for the above stated reasons, we find no need to depart from the finding of the Trial Court in terms of the Conviction and the Sentence meted. We find that t - 0 /~Q. merit and it is therefore dismissed. It is so Ordered. ·-------·,.)-""I ' , 1,,\ 1) Winfrida B. Korosso Judge 9- ,...~,- 29th February; ,,,- 10