20162106 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA ATMBEYA DC. CRIMINAL APPEAL NO. 19 OF 2015 (Original Resident Magistrate Court of Mbeya Original Criminal Case No. 36/2014) HUSSEIN S/0 HASSAN .............................. APPELLANT VERSUS THE REPUBLIC ........................................ RESPONDENT JUDGMENT Date of last order: 01.03. 2016 Date of Judgment: 02. 06. 2016 Dr. M. C. Levira, J The Resident Magistrrate's Court of Mbeya convicted and sentenced the Appellant to life imprisonment with the offence of Unnatural Offence Contrary to Section 154 (1) (a) and (2) of the Penal Code Cap 16. The appellant was further ordered to compensate the victim the amount at the tune of Tshs. 20,000,000/=. The brief facts that led to the conviction of the appellant may be well prefaced to the effect that the appellant was alleged on 5th day of March, 2014 in Mbalizi within the District and Region of Mbeya did had carnal knowledge against the order of mature of one Brucy Jacob of six years old. Brucy Jacob (PW1) at the time of incident was a pupil schooling at Mbalizi. He used to return home at about 15hours. At such time the appellant used to take PW1 to his house where he carnal knew the victim (PW1) against Page 1 of 13 the order of nature. It is apparent in record that the appellant performed such act for about four times. C On the material date, PW2, the mother of PW1 discovered some uncommon conditions. PW1 was shivering and the feaces were coming out of the PWl's anus. PW1 told PW2 that someone called "Ustaadhi" now the appellant used to insert the manhood against the order of his nature. The matter was reported to police thereafter PW1 was referred to the Referral Hospital of Mbeya. The Medical Physician (PW4) after the examination discovered that PW1 was injured to her private parts especially the area surrounding the anus. There were some bruising marks and laceration of about 11/2 cm which was ant the postural area. PW1 was also tested HIV positive. The appellant denied the involvement to offence alleged. The trial Magistrate believed that the defence was far from innocence he convicted and sentenced the appellant as it appear above. Being aggrieved with the decision and order, the appellant has preferred this appeal. The memorandum of appeal consists of seven grounds that form the following basis; namely, That the trial Magistrate erred in convicting the appellant relying on the evidence of PW1 while the voire dire test was not well conducted. That the trial Magistrate erred in law and fact when he failed to resolve the contradictions within the prosecution witnesses. Page 2 of 13 3. That the trial Magistrate erred in law and fact in convicting the appellant relying on the planted evidence of PF3. 1 4. That the identification parade was not conducted within the parameters of the law. That the trial Magistrate erred in law and fact by failing to consider that there was a need of DNA test. That the trial Magistrate erred in law and fact when he ignored the defence evidence which emphasized that PW1, PW2 and PW3 were relatives hence they planted the case against him. That the charge against the appellant was not proved by the prosecution beyond reasonable doubt. At the commencement of the hearing, the appellant remained unrepresented while Ms. Mahundi the learned State Attorney appeared for the respondent, Republic. The appellant prayed the court to adopt the grounds of appeal as his submission waiting to make rejoinder after respondents reply. Ms. Mahundi did not support the appeal. In the first ground of appeal, the learned State Attorney submitted to the effect that the voire dire test was conducted in accordance with Section 127 (2) of the Evidence Act, Cap 6. It was contended that PW1 knew the meaning of speaking the truth and that was the reason for testimony to be taken under oath. The learned State Attorney cited the case of Mustapha Ramadhan Kihiyo Vs. Republic [2006] T.L.R. 323. Page 3 of 13 In ground No. 2, the learned State Attorney admitted that:thëre was a contradiction as regarding the time of the victim getting ( back home. The victim told the trial court that he was returning home at 15 hours while his sister mention the other time. It was the observation of the learned State Attorney that the contradiction was trivial and did not go to the root of the case. Ground 3 was observed to be baseless because there is no proof that the appellant was convicted for the evidence which was planted against him. In regardto the complaint in ground four about the identification parade, the learned State Attorney canvassed that it is not mandatory to conduct it may be performed only when there is a confusion about identification. It was also submitted that the victim mention the appellant from the first day, then at thecourt. PW1 also showed the house of the appellant and mentioned the nick name "Ustaadhi". On fifth ground, the learned State Attorney stated that there was no need of DNA test because the most important evidence is that of the victim. And in the current case the appellant was identified by PW1 at the court. Submitting in the six ground, the learned State Attorney stated that there is no law that denies the relatives the right of testifying. The case of Mustapha Ramadhani (supra) was cited. Lastly the learned State Attorney contended that the charge was Page 4 of 13 proved beyond reasonable doubt against the appellant. She prayed the appeal to be dismissed. I At time of rejoinder, the appellant reiterated his assertion that the Voire dire test was not properly conducted. Had it be, the victim could not have produced two versions of story that; at first he said he did not cry but later he said he cried. The Appellant also commented about the age that there were contradictions between the words of the victim himself, his mother and the doctor. Victim said he was 5 years, his mother said she did not remember but the doctor said the age of PW1 was around 6 years. The appellant further stated that the evidence adduced at the trial court was all hearsay evidence and the same was cooked against him. The appellant questioned as to why they went to the hospital on the next day. According to him it seems there were two PF3; that of 05/03/2014, 06/03/2014 and 07/03/2014. The appellant also believes that there was contradiction on the issue of whether the victim was admitted and he stayed at the hospital for 3 days or he was released to go back home on the same day. PW2 told the court that the victim (PW1) was admitted at the hospital while PW1 said they were allowed to go back home and they were requested to go in the next day. Page 5 of 13 The victim was admitted on 10/03/2014 then the PF3 ought to have indicated that date or 12/03/20 14 but not 11/03/2014. (T Another point made by the appellant was to the effect that the victim was unnaturally known three days before the doctors examination and the appellant was arrested on 07/03/20 14 with that regard the offence was committed by another person. And if it is true that he committed such offence why the hamlet leader was not aware about the incident. The appellant maintain that identification parade was necessary and the case against him was framed. He prayed to be set free. Having considered the records of the case, the grounds of appeal and the submission there of I find convenient to proceed determining the grounds of appeal. The complaint in the first ground of the appeal is that the voire dire test was conducted in violation of Section 127 (2) of the Evidence Act. Cap 6. Before looking into it, it is a common knowledge that at the material time of incident, the victim (PW1) was six years of age. With that fact the victim interms of Section 127 (5) of the Evidence Act was a child of tender age. Being a child of tender age still PW1 was competent to testify but subject to the conditions outlined under Section 127 (2) of the Act, the provision provide the following: 129 (2) Page 6 of 13 U "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 oath; his evidence may be received thought 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 tth". The provision I have cited imposes the duty for a trial Magistrate to assess whether the child knows the meaning of oath. In case it is of satisfaction of the court that the child does not know the meaning of oath, the trial Magistrate must investigate whether the child possessed of sufficient intelligence and understands the duty of speaking the truth. These two tests can only be exercised by conducting "Voire dire test". The Magistrate shall perform such test by asking or putting some questions to the child from the answers he may be able to determine whether the child knows the meaning of oath or possessed of sufficient intelligence and understands the duty of speaking truth. Kinds of questions appear to be a matter of style but they should aim to achieve the goals of test. In the instant case, the trial learned Magistrate conducted the voire dire test and he recorded as follows: Page 7 of 13 COURT IN CAMERA VOIRE DIRE TEST ( Question: Do you study? Answer: Yes am schooling. Question: Where do you school? Answer: I am schooling at Mbalizi two. Question: In which school do you study? Answer: I am kindergarten student. Question: Where does your school located? Answer: After crossing the bridge. Question: Where do you pray? Answer: I pray at Moravian Church. Question: Who is better, the child who speak the truth or the one who speaks lies? Answer: The one who speaks the truth is a good child. Because the person who tells lies will go to the hell and that who speak the truth will go to heaven. Question: The person who gave oath and that who is the speak without oath one who will speak the truth (sic). Answer: The person who gave oath is the one who will speak the truth. Question: Do you know the meaning of oath? Answer: Yes it is to tell the truth. Then he started testifying. The inquiry and the findings extracted above are to my view that were sufficient to enable the learned trial Magistrate to determine that PW1 possessed of sufficient intelligence and understood the duty of speaking the truth. Had Page 8 of 13 the victim been spoonfed the answers, the appellant could have lamented to that effect. I therefore concur with the learned State ( Attorney view that the voire dire test was properly conducted as. per Section 127 (2) of the Act. I now proceed with the second complaint, the appellant contends that the prosecution evidence particularly that of PW 1, PW2, PW4 and the 'exhibit P1' were contradictory. I agree with the fact that there was a contradiction of PW1 and PW2 as to what was the time PW1 was returning home. There is also inconsistencies of evidence between, PW2, PW4 and exhibit P1 regarding to when PW1 was admitted at the hospital. PW2 told the trial court that she sent her son to hospital on 07/03/2014. On the contrary PW4 and the 'exhibit P1'(PF3) produced another version of evidence that the victim (PW1) was admitted and examined on 11/03/2014. The impact of contradicting evidence mostly depends on circumstances prevailing in a particular case. In Said Matula Vs. Republic [1995] TLR 3, while observing the effect of contradictions in evidence, the court state the following: "Where the testimonies by the witness contain inconsistencies and contradictions the court has the duty to address the inconsistence 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". Page 9 of 13 I have carefully scanned the entire evidence on record particularly about the contradictions over PW2 and PW4 C testimonies also the 'exhibit P1', they have made uncertainty as to when PW1 was admitted and examined at the hospital. But these contradictions, to my knowledge do not shake the main root of the case. Apart from PW1, other witnesses and exhibits only intended to corroborate the content made by the victim (PW1). And for the circumstance of the present case, according to Section 127 (7) of the Act, PW1 was the only independent witness to prove the offence. In ground three of the appeal, the appellant complained that the trial Magistrate erred in grounding the decision relying in the evidence of PF3. I do concur with Ms. Mahundi, learned State Attorney that this ground lacks merit. Observing the records, at page 23 and 24 of the judgment, the trial Magistrate made analysis by evaluating the evidence of all witnesses. And at page 25 the trial Magistrate marked the following: "From the above piece of evidence it is crystal clear that all the testimony from the above witnesses suggest that the victim Brucy Jacob has been invaded by blunt object on his private part "at his anus". The appellant also challenges the decision of the trial court that the evidence of prosecution was unfounded because identification parade was not conducted. The appellant alleges that the name 'Ustaashi" he was identified with is commonly used by many people. It must be born in mind that the duty of proving the case as in the present circumstance was solely of the prosecution. It Page 10 of 13 was in good position of knowing a kind of evidence to prove the offence. Basically identification parade appears to be vital when the circumstances demands additional evidence to figure out the real culprit. In Republic Vs. Charles, Criminal Appeal No. 39 of 2000 (unreported), speaking about the need of identification parade, the court lucidly observed the following: identification parade was called for in the circumstances of the case. An identification parade would have been an appropriate opportunity for PW3 to identify the appellant if she really saw him on that fateful night". Apparently the evidence of PW1 is very clear that he stood/sat slept very close to the appellant at the time of act, needly to say the incident did not took place at night and incident did not involve many culprits. With that account there was no need of addition or positive evidence to prove the identification. The sixth ground of appeal is baseless. Had the appellant revisited the judgment of the trial court thoroughly he would have realized that at page 30 and 33 to 34 the defence case was clearly considered. The appellant complaint in the 7th ground of appeal is to the effect that the case against him was not proved beyond reasonable doubt. For the charge of sexual offence like in the present case, the prosecution was duty bound to prove two Page 11 of 13 14 things namely; penetration and whether the accused's manhood was penetrated to the canal part of PW1. Perusing the records, it (. pertinent that the act of penetration was well emphasized by PW1 himself. At page 10 and 11 of the court proceedings he revealed the following: • he press/put his dudu which is like this (showing his private part). We normally lie on his bed and he put his dudu (showing his penis part) after we removed and remained naked. Then after that anaingiza dudu matakoni kwangu ... normally I feel pain if he press the dudu to my anus. I feel more pain but I can not cry". Without heading around, the words of PW1 are more than loud that the act of penetration against his order of nature was committed. The matter as to who inserted the blunt object into PW1's anus, the answer is not far fetched. The act was committed in day light where there was no possibility of mistaken identity. I rest my pen that, the charge against the appellant was proved beyond reasonable doubt. I therefore uphold the decision of the trial court. Appeal dismissed. DrMCLevira Judge 21/06/2016 Page 12 of 13 Date: 2 1/06/2016 Coram: Hon. M. C. Levira, J ( Appellant: Present Respondent: Mr. Stambuli C/C: Mary Mwakasala Court: Judgment delivered in the presence of both parties. Right of Appeal Explained. , oURT 4i4Y . Dr. l ra .y , Judge 21/06/2016 Page 13 of 13