20161102 TZHC Mwanza

. . IN THE HIGH COURT OF TANZANIA (fviWANZA REGISTRY) ATMWANZA MISC CRIMINAL. APPEAL NO~ 148 OF 2015 MATIKO MAGIGE MWITA .. .,. .. ., ....... u••·••ac ■ APPELLANT VERSUS .. REPUBLIC ■ •nu ■ 1: Kil E ••a a & • 11.m 11111 ■■■ 1111 ■ ■ ,I ! ■ 1111.~ ■■ ■ I! &a ll 11 • •B ■ 11RESPO,N·DENT BEFORE: MAIGE, J At the District Court of Tarime (''the trial court''), the appellant was charged with and found guilty of an offense of rape contrary to section He is aggrieved d . sentence henceforth this instant appeal. SALOME JOHN is a mother of THABISA EMANUEL, a child of OQe year. In the judgment of the trial court which is the subject of this appeal, the appellant was found guilty of raping the said child contrary to sections 130 (1) and 2 (e) and 131 (1) of the Penal Code [Cap. 16 R.E 2002]. 1 . - SALOME JOHN was one of the·key witnesses during trial. She testified as· -( _ PW-_1. Her testimony in nutshel_l was as follows: The appellant is her brother in law with whom they had been staying in one homestead. oil the material day and time, she had left her one year child above mention ("the victim'') with her young· sister Robe ·Emanuel who subsequently· testified as PW-3. PW-3 is a child of seven years. It is the evidence of PW-1 that _when she came back at home she found the victim bleeding abundantly in her virginal parts. The victim, according to PW-1, was seriously damaged. It may perhaps . be worthy to note that while -in his testimony . in chief PW-1 claims that when she came back home the appellant had disappeared, in her evidence in cross examination she said that she had found him present at· home. Equally important to note is the fact that according to the evidence of PW-1, the appellant was arrested at hospital where he had come to see the victim. Admittedly, this was not expected for the person . . who committed such inhuman offense. The connection of the appellant with the commission offense was . . inferred from the testimony of PW-3. She claims to have left the victim with the appellant and when she came back she found the child bleeding while . the appellant had already. disappeared. . In holding the appellant culpable with the offense, the trjal magistrate considered the fact that he 2 I •• . - . was the last person to be seen with the victim -before commission of the (_ ~ offense._ Apparently, the trial court applied the prjncipl~ of "the last seen person". In this rule which usually applies in ·homicide, the person who is last seen with the deceased is deemed to be the murderer unless otherwise . . . established. I have no doubt that in a fit case, the principle _can be applied in other criminal offenses such as rape. Apart from the evidence of PW-1 ·and l?W-3, there was also the evidence in PF3 (exhibit P-1). The admissibility and application of exhibit P-1 by the tria:1 · court, it- was admitted by Mr. Karumuna, ·1earned state attornf:Y, was in violation of the mandatory req~irements imposed by the provision of section 240 (3) of the Criminal Procedure Act. The provision, as_ correctly submitted by Mr. Karumuna,. requires the court before admitting PF3, to inform the accused of his right to call the doctor who prepared it for cross examination. -The omission, as submitted by Mr. Karuma is fatal. In ALFRED VALENTINO VS R, CRIMINAL APPEAL NO. 92 of 2006, CAT (Unreported) it was held that non compliance with section 240 . . . (-3) of the CPA disables a court from acting upon such medical report. The same position was replicated in . JUMANNE SHABAN MRONDO VS R, CRIMIN_AL APPEAL ~o. 282 OF 2010, CAT, MW~NZA (UNRE~ORTED). In the str~ngth of the binding author-it f the Court of Appeal afore referred 3 -- ··"' -----. (2, fr· ;-to therefore I will uphold the first ground of appeal and-expunge exhibit p..:1 c_: ' ..... from the record. - Mr. Karumuna has_ submitted, with all forces that; despite the _ expurgation of the evidence in . . . . exhibit P-1, the evidence of PW-3 on . . . . . . . record is capable of supporting the conviction. I do not think so. As I said above, PW-3. was a child of. 7 years. His testimony is regulated by the provision of ·sect/on 127 of the Evidence ·Act. According to the said provision, such evidence may be on oath or without oath. In this matter, PW-3 gave unsworn evidence. This is specifically regulated by the provision of section 127(2_) of the Evidence Act.. It requires the court_ before receiving such evidence to satisfy itself on two conditions. First, that the child is intelligible ~nough to testify in court. Two, he or. she must understand the duty of speaking the truth. In the_ ·instant case, the t~ial magistrate only established the first . element This was serious error in law which vitiat~d the evidence of PW- 3. In DHAHIRI ALLY VS. REPUBLIC (1987), TLR 218, the Court of Appeal of Tanzania took the view that for the unsworn evidence of a child of tender age to be reliable the above two conditions must be established cumulatively. In this matter, while the first ingredient was establi$hed, the 4 --er Q. ])' 1-6 . . s_eco~d one was not. The effect of the omissi_o_h, according· to the authority ( i_n. MBAGA JULIUS VS. REPUBLIC, HC CRIMINAL APPEAL NO. 131/2015, CAT, MWANZA, is to renderthe-evidence· unworthy of being relied upon. It . . . has to be expunged from the record. I am obliged to follow the decision of the· Court of Appeal. Consequently· therefore, the .evidence of PW-3 is· hereby expunged from the record. - Once· _I. expunge exhibit P1 and the testimo_ny of PW-3, there - remain no sufficient evidence on the record to sustain conviction and sentence of the appellant. · For those reasons t~erefore t~e appeal shall succeed. The cOJ:wiction and sentence of the trial court is quashed and set aside. The appellant is hereby set free unless withheld for other legal grounds. It is so ordered. · I.MAIGE 0 JUDGE 5 Date: 2/11/2016 · Coram: Hon. Maige, . . J . Appellant: Present ._ Respondent: Karumuna S/A _B/C: R. Emory . . Judgment delivered in the presence of Appellant in person and Mr. Karumuna nd State Attorney for the Respondent, this 2 day of November., 2016. LM JUDG-E 2/11/2016 . . 6