justin zebedayo nyabula vs republic 2016 tzhc 2321 21 september 2016

IN THE HIGH COURT OF TANZANIA AT POPOMA (APPELLATE JURISPICTION) (PC) CRIMINAL APPEAL NO. 39 OF 2013 (O riginal Crim inal Case No. 312 o f 2011 o f the D istrict Court o f Dodoma D istrict a t Dodoma) JUSTIN ZEBEDAYO NYABULA.......................................... APPELLANT VERSUS THE REPUBLIC............................................................RESPONDENT 3UPGMENT 2S/7& 21/9/2016 KWARIKO, 3: Before the District Court of Dodoma appellant herein stood charged with the offence of Unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [CAP 16 R.E. 2002]; where it was alleged that in unknown date in July, 2011 at Nala viliage within the Municipality and Region of Dodoma appellant did have unlawful carnal knowledge of one YOHANA JOHN a boy aged eleven (11) years against the order of nature. When appellant denied the charge a total of four witnesses were brought to prove the same and their evidence is recapitulated hereunder; On 18/7/2011 JOHN MAKUYA, PW2 appellant's relative left his Nala residence under the care of the appellant while himself and wife went to Michese area. At home appellant was left together with the complainant YOHANA JOHN, PW1. That, in the absence of PW2 and wife the appellant who was sleeping together with PW1 did sodomise him by inserting his penis in the anus and when his mother returned he reported the incident to her. However, it was until PW2 returned home on 20/7/2011 when he reported the incident to local area leaders. Whereas, the appellant was arrested on 01/8/2011 when he went to PW2's home to take his personal effects. PW1 was sent to Dodoma General Hospital on 2/8/2011 but was directed to go to Makole Hospital and since days had passed PW1 was directed to take blood test. Dr. TUMSIFU ZAKARIA, PW4 who examined PW1 said he found bruised and extended anus and concluded that PW1 had been sodomised. The PF3 that he filled was admitted in court as exhibit PI. Lastly, upon arrest appellant was interrogated by No. D 7643 Detective Corporal POLYFATION, PW3 but he denied the allegations. In his defence the appellant did not deny that he was left at PW2's home to look after but denied that he slept together with PW1. That, he slept in that house together with PW1 arid one ELIAS and was wondering why he was charged alone. And on 18/7/2011 he siept in a different house. He complained that he was not medically examined to link him with alleged offence. Lastly, he lamented that these allegations were fabricated since he had grudges with PW2 as he had relationship with his wife (PW2's wife). The appellant did not call any other witness. At the end of the trial it was found that the case against the appellant was proved beyond reasonable doubt, he was convicted and sentenced to twenty (20) years imprisonment. Upon being aggrieved by trial court's decision the appellant filed this appeal over six (6) grounds of appeal which raise five grounds of complaints as follows; 1. That, the tria l court erred in iaw when it failed to conduct voire dire to PW1 in accordance with section 127 (2) o f the Evidence A ct [Cap 6 R.E. 2002]. 2. That, the tria l court erred to convict the appellant while the time upon which the incident occurred and m edical examination was not linked. 3. That\ no village leaders upon whom incident was allegedly reported were called to testify. 4. That, PW 4‘s evidence relied on presum ption that something penetrated into PW1 's anus. 5. That, the tria l court erred in iaw and fact to convict the appellant while the prosecution case was not proved beyond reasonable doubt When the appeal was brought for hearing the appellant opted to let the respondent Republic to respond to his grounds of appeal before he said anything else. Thus, it was Mr. Sarara learned State Attorney who appeared to argue the appeal on behalf of the respondent Republic where he opposed the same. As regards to the first ground of appeal Mr. Sarara argued that the trial court conducted voire dire examination in respect of PWi and was satisfied that he had sufficient intelligence to testify and understood duty of speaking the truth and thus PWI only failed to mention his age. It was Mr. Sarara's contention that the law under section 127 (2) of the Evidence Act (supra) had been complied with. Secondly, it was submitted on behalf of the respondent that PW4 had proved that PWI was sexually attacked which evidence was corroborated by PF3 exhibit PI. However, Mr. Sarara learned State Attorney did not specifically respond to the third and fourth grounds of appeal. In relation to the fifth ground of appeal it was Mr. Sarara's contention that there was enough evidence to prove the case against the appellant from PW2 who said he had left him to take care of his house and PW1. That, PWl's evidence being sufficient to convict as per section 1.27 (7) of the Evidence Act (supra) but was corroborated by PW2, PW3 who said appellant had confessed allegations, PW4 and PF3 exhibit PI. Moreover, PW1 did not say some other people came to the house apart from the appellant. For the foregoing Mr. Sarara was of the view that conviction against the appellant was properly grounded. As for the sentence Mr. Sarara argued that it was an error to cite both sub-sections (1) (a) and (2) of section 154 of the Penal Code (supra) since the rightful one was sub- section (1) (a) and the rightful sentence was thirty (30) years imprisonment. He was of the view that the mix-up in the charging sections did not occasion any injustice since both sub-sections provide for punishment though to two different circumstances. In his further reply the appellant argued that he was not medically examined to ascertain if he had any disease. That, although PW2 asked him and one ELIAS SHAYO to watch over his house but the latter was not charged. That, he never slept with PW1 and PW2 was informed that the incident occurred three days earlier. Lastly, the appellant complained that the Police threatened him hence did not explain himself properly. •Foiiowing parties' contending submissions this court is required to d e cid e w h e th e r th e appeal has merit. To decide this issue this court will deliberate the grounds of appeal seriatim as follows; In relation to the first ground of appeal the fact that PWI failed to mention his age is one of the factors to show that he had no sufficient intelligence to rationalize things. Naturally, a child aged over ten years would not fail to know his age. And although the trial court opined that PWI had sufficient intelligence and understood the duty of speaking the truth the questions asked did not sufficiently prove that PWI had such intelligence. • Also, even if the trial court opined that PWI knew the duty of speaking the truth but he only responded "yes" when was asked that question and no more. PWI was not also tested if he understood the nature of an oath but the court allowed him to take oath before he testified. PWI was only asked what his religion was. This trend of procedure clearly shows that the trial court did not conduct voire dire as properly required in law as it ought to test PWl's intelligence and whether his evidence could be received and whether he understood the duty of speaking the truth as it is provided under section 127 (2) of the Evidence Act (supra). Thus, the effect of non-compliance renders PWl's evidence to remain on record and be subjected to usual scrutiny like any other evidence. I get support in this stance in the case of KIM BUTE OTINIEL V. R, Crim inal Appeai No. 300 o f 2011, Court o f Appeal o f Tanzania at Dar es Salaam (unreported). Now, whether or not PWl's evidence is credible will be subject of discussion in the coming grounds of appeal. The first ground of appeal thus succeeds. As regards to the second ground of appeal this court is of the opinion that given the delay to have PWi examined from alleged date of incident between 18/7/2011 and 20/7/2011 to the date of examination 02/8/2011 it cannot be said conclusively that whatever was found in PWl's private parts was resuit of the alleged incident. PW4 did not explain this gap and whether the bruises and extended anus he said he detected with PWI was a result of the incident on the alleged date. This doubt is heightened by PW2's evidence when he said that on 02/8/2011 when they went to the General Hospital they were told that since many days had elapsed what they could do was only to have blood test That is when they went to Makole Hospital. The trial court was not told whether blood test was done and what the results were. This ground of appeal thus succeeds. The appellant complained in the third ground of appeal about failure of village leaders to testify. The State Attorney did not respond to this but this court is of the considered view that village leaders to whom PW2 alleged to have reported the incident on 20/7/2011 should have testified to clear doubts as to whether this incident occurred as alleged, more so since the report was sent to police belatedly. Thus, this failure for local area leaders to testify adversely affected prosecution case (see AZIZ ABDALLAH V. R [1991] T.L.R 71). The third ground of appeal has merit. This court further finds the fourth ground of appeal with merit since PW4 who said did find bruises in PWl's anus did not show that in his report PF3, exhibit PI. He also said he presumed something penetrated into 7 PWi's anus but in his report he said it was penis which used to inflict injuries on PWi's anus. And he concluded that sodomy had been committed on PW1 but there was no medical results to prove it. No laboratory examination was done to PW1 or that he was found with sperms in that way. Thus, to say that it was penis that was used to penetrate into PWi's anus was being judgmental. What PW4 was supposed to report is the nature of the object used to inflict the injuries and not specifically mention it as he was not there when the injuries were being inflicted. Lastly, this court is in agreement with the appellant that the prosecution case was not proved beyond reasonable doubt against him. This court has been wondering as to why PWi's mother did not testify since PW1 said he first reported the incident to her. As ruled out in respect to village leaders, PW i's mother was crucial witness to corroborate PW1 and PW2's evidence. Also, while PW1 said one ELIAS was his brother whom appellant said was also together caring PW2's home but PW2 denied to know him at all. Moreover, delay to report the incident at the police creates another doubt as to whether the same realiy happened. As to how one can keep quite for about two weeks with serious allegations is difficult to comprehend. Coupled with the foregoing is the delay to arrest the appellant. The incident allegedly occurred between 18/7/2011 and 20/7/2011 and PW2 got information on 20/7/2011 but no effort was done to find and arrest the suspect, appellant until 01/8/2011 when he was said to go to PW2's home to collect his personal effects. The evidence did not say appellant was traced anyhow at his known address and was not found taking into account that he is related to PW2. Thus, delay to arrest the appellant adversely impacted the prosecution case (see IBRAHIM SHABANI & SHABANI ALLY KALULU V. R, Crim inal Appeal No. 110 o f 2002, Court o f Appeal o f Tanzania (unreported). And lastly, whereas Mr. Sarara learned State Attorney contended that appellant admitted the allegations upon interrogation, the evidence on record by PW3 is that the appellant denied the allegations. However, had appellant admitted the allegations his confession would have been recorded and tendered in court as exhibit. ' Consequently, in this case not only that sodomy was not proved onto PVV1 but it was not proved that appellant had anything to do with the allegations, if any. Therefore, this appeal has merit and is hereby allowed, conviction quashed and sentence is set aside. Finally, it is ordered that the appellant be released from prison unless he is otherwise lawfully held. Order accordingly. JUDGE 21/9/2016 Judgment delivered in court today in the presence of the Appellant, Ms. Magili learned State Attorney for the Respondent Republic and Mr. Nyernbe Court Clerk. M.A. KWARIKO JUDGE 21/9/2016 C o u rt: Right of Appeal Fully Explained. 0^x < \v \A ,\ VA v- 21/9/2016