haji so iddy vs republic 2017 tzhc 2065 31 march 2017

IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 34 OF 2016 (Originating from the District Court o f DODOMA Criminal Case No. 30 o f 2014, Hon. E. ANANGISYE RM) HAJI S/O IDDY............................................. APPELLANT VERSUS THE REPUBLIC........................................... RESPONDENT JUDGEMENT Mansoor, J: 31 st MARCH 2017 This appeal arises out of the judgment dated 16th February 2016, passed by the District Court of Dodoma in Criminal Case No. 30 of 2014, by which, the Appellant was convicted of Rape contrary to Section 130 (1) of the Penal Code, Cap 16 R: E 2002. He was convicted and sentenced to Thirty Years imprisonment. The prosecution case against the appellant very briefly was as follows: On 24th January 2014, at Chamwino Area within the Municipality of Dodoma, the appellant did unlawful have carnal knowledge with one NASMA MAULID @OMAR a child of 4 years old. The prosecution witness was Sameer Maulid, the brother of the victim, Laila Maulid 14 years old, a sister of the victim, Nasma Maulid is 4 years old, and Laila Maulid is 14 years old. The important question for the determination is whether this Court could rely safely on the testimony of Nasma Maulid, the victim, and Laila Maulid (14), both being of minor age. Both these two are witnesses who may be termed as 'child witnesses,' for they are both of tender age. It is on record that the learned Magistrate did make preliminary examination of these two girls in order to satisfy herself as to their intellectual capacity or their 'mental age.' The learned Magistrate had come to a conclusion that the girls satisfied her that these girls understood the significance of the oath or even that they understood the significance of the desirability of speaking the truth. Although it is not necessary to have a preliminary examination, namely, Voire dire, of a child witness in order to make their testimony admissible, nevertheless such has been done and of course it was desirable for it offered an opportunity to the Court to assess the mental capacity of a child witness. Nevertheless, the children witness was corroborated by a Report from the Doctor showing the victim was raped. PW3 was an investigator, he did not see the victim bleeding from her private parts and he was the one issuing a PF3 to have the child examined at the hospital. The Evidence Act does not restrict to have all the prosecution witnesses coming from the same family, after all the alleged rape occurred in the house where only the family members resided. It is on record that the Appellant jumped bail, and he absented himself when the case was called on for defense, and the Appellant did not turn up for either cross examining the doctor or to present his The victim in the instant case is a minor child aged about 4 years at the time of incident, who was subjected to rape by the accused. As per the prosecution case, the accused was the tenant and he rented a room in the house of the victim's parents. On the horrific day of 24th January, 2014, the accused called the victim into his room and thereafter committed rape on her. The victim informed this fact to her elder sister Leila. Police was informed on which incident was recorded and the same was handed over to PW3 for further action. Police did not go to the spot since the victim along with her sister and family went to the police. Thereafter the Victim was taken along with her sister to Dodoma General Hospital for medical examination where she was medically examined. Doctor handed over the Report. From the Report and the statements of the witnesses it was revealed that the accused had committed rape upon her who was residing as tenant in the same house. There was one blood stained washed underwear of victim after completing investigation, charge sheet was submitted against the accused. I have seen the Medical Report, where gynecologists had medically examined the girl. The doctor did not appear in court to testify. The Medical Report simply stated that “injuries seen at the vagina with evidence of vagina penetration, hymenpefered” bruises seen at the vagina, slight bleeding, vaginal penetration, obscured hymen with fresh margin and bleeds” The Doctor’s Report did not reveal that there was blood semen and if that blood semen was of the accused/appellant. The doctors Report did not reveal any other biological clue material detected that is of the accused/appellant. The facts and circumstances, is unable to show any cogent or reliable evidence on the basis of which it can be inferred that the accused had tried or penetrated his male organ in the female genital of the girl child. From the evidence it also cannot be inferred that the appellant/accused had raped the four year old girl child. Though the girl child was bleeding from her private part, however neither the blood nor the semen nor any other biological thing was detected from the Doctors Report in which it shows that the Appellant had the girl child and had allegedly raped her. Even the blood spot on the underwear of the accused could not be ascertained to be of which group and as to whether it matched with the blood of the girl child or The learned public prosecutor had emphasized that since there was a blood spot on the underwear of the girl child, it is sufficient to infer that the appellant had raped the little girl. This contention of the learned counsel cannot be accepted. The burden to prove that the child girl was raped was on the prosecution. It is unacceptable that the girl child of 4 years old could be raped by an adult and she would not cry or she would hide it. See the testimony of PW3 Laila Maulid, a 14 years girl, which shows that the girl refused to say what happened to her until she was threatened by one Sophia, and she said she was raped by the Appellant after being threatened. That the girl of 4 years old did not feel pain when the appellant was allegedly raping her, and she was able to quietly walk from the appellant room to the corridor without crying or without feeling any pain. The testimonies of the girl victim, and PW3 are doubtful and the appellant cannot be convicted on the testimonies of these two witnesses and merely on the basis of a blood spot on the underwear of the child, which the doctor did not bother to check whether the blood group in the underwear did match with the blood of the girl child, and whether there was blood semen on the vaginal of the girl which matched that of the appellant. The burden to prove that the accused had raped It is ordered accordingly L. MANSOOR JUDGE 31st MARCH 2017 Judgement delivered in Court today in the presence of the Appellants, Ms. Magesa, State Attorney for the Respondent Republic and Mr. C.A.Chali the Court Clerk. L. MANSOOR JUDGE 31st MARCH 2017