20170825 TZHC Dodoma2

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 55 Of 2017 ORIGINAL CRIMINAL CASE NO. 43 OF 2016 OF THE DISTRICT COURT OF DODOMA AT DODOMA MSAFIRI s/o NDAHANI SIJIA ......................... . APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGEMENT Date of Judgment- 25/8/2017 L. Mansoor, J. The appellant was charged before . the District Court of Dodoma with the Offence of Rape Contrary to Sections 130(1) and .. ' (2} (e) and Section 131 (1) of the Penal Code, Cap. 16 of the Revised Lavvs. Although, he declined to have raped one Shila Mlabo (PW2) a nine year old girl and put forvvard the defence qf ali~i he _was convicted and sentenced to life imprisonment with twelve strokes of canes. The prosecution case started with the evidence of PV✓ 1, Thobias M!onda, a doctor -frorn Charnvvino Government Hospital, Dodoma. He testified that on 7th November, 2016, he received 1 ' - PW2, who vvas brought by o wornan police {WP); It was alleged that PvV2. was found with bruises and lacertion of her vargina. Her skirt was with blood stains. A PF3 evidencing treatment was admitted as exhibit Pl before the trial Court. After conducting voire dire of PW2 the trial court proceeded to record her evidence as the trial court was of the opinion that she understood~the duty of speakin_g_ihe truth. She (PW~_)_lqld the trial court that on 7th November, 2016 at night she and her other colleagues were at the home of one Mchizo. There, she felt tired and decided to go somewhere and rest. She slept just by the ,place 0 \/lthere. there was music. There, while asleep she learned that the appellant had raped her in which case she felt too much pain. The appellant left immediately after the incident. She went to one "Mama Leah's" home and informed her of the incident. ;.Mama Leah decided to go and report the incident to different people including PW2's grandmother. Together they went to report the matter to Chamwino police Station after they had reported first to a Chairman. The police took her to the hospital for treatment. P\N2 said she identified the appellant. PV\/3, Sau Mlalo, testified that PW2 is his daughter. He said on 7th November, 201 6 at about 3.00 hrs vvhile at home one. Sinzo Mkoyi appeared and told him of the incident. He said on the material day there was a vvedding ceremony at Mhinzo Mahiya's house. Upon 2 reception of the information he went to Leah tv'\koyi's place where , he found PW2. He learned that PW2 was bleeding from her vagina. He testified further that the appellant was implicated by PW2 for she knew him very well. PW4 F6836 D/Cpl Philimo, the investigator informed the trial court that on 7th November, 2016 while at home, the OCCID one Maulid requested his presence at Chamwino police station. There, ·. · ·· he was ordered to carryon an investigation in respect of the offence that the appellant was implicated. On 7th Novernber, 2016, at night he interrogated the appellant. Upon interrogation, the appellant .,.~ inclined that on 7th November, 2Q 16 while coming frorn the homE: ·of .-- , one Mhinzo Chipaya where there was celebration going on, he found PW2 who had slept near the music . There, he undressed PW2 . ~ .. and raped her. In other words, PW4 said upon an interview the appellant confessed commission of the offence . The appellant on the other hand declined commission of the offence. He said, he was at home with his mother {Mllka Nganyeri - DW2) on the material day. He testified that besides DW2 his daughter one Jesca Ndahani was also there at their homestead. By the time one Jackson Masemla and Matonya Ngaina vvent to his place, he found he had already gone to his grandmother, · one Chikumbii. Ultimately he was found there, he arrested and taken to 3 Chamwino Po!ice Station where his statement was taken. He testified that the case against him was all a haux. DW2, Milka Nganyari, the appellant's mother confirmed the latter's account. In other words, she suggested that the defence of alibi was available to the appellant. She said on the material day the appellant was at her place sleeping. The trial court found that the case· against the appellant was proved beyond reasonable doubt as according to it the conditions -1 · vvere favourable for proper identification of the appellant. And that, •7' . as the appellant __ admitted comrnission__ of the offence q_~ring interrogation while in police custody, the charges against him were . · ,. :" with foundation. He was convicted and sentenced. to suffer< life imprisonment with twelve strokes. Aggrieved, he appealed to this court. He put forward four grounds of objection as follows; One, the voire dire was conducted in violation of the law as PW2's intelligence was not amply tested. Tvvo, he- was not properly identified and the age of PV\/2 (the victim) was not proved. Three, the trial court did not consider his defence and four, the punishment of twelve strokes was .against the law. 4 When the appeal came for hearing, the appellant was represented by Ms. Masai, learned advocate while the Respondent/Republic was represe_nted by Mr. Sarara, learned State Attorney. Submitting in elaboration of appeal Ms. Masai argued that the voire dire supposedly conducted by the trial court was in contrave_o_tio_n of the_ low, as the re_cord befo_re it shows that PW2 did not promise to tell the truth to bring into play the applicability of section -127 of the Evidence Act, Cap 6 of the Revised Laws as amended by Section 26 of the Written Laws (Miscellaneous An1endments) (NO. 2) Act, 2016. In that light, it cannot be said that there was proper voire dire known to law, she charged. As regards the age of PW2, Ms Masai contended that the same was not proved as prosecution witnesses did not specifically testify on it, not even PW3, the mother of PW2 testified to that effect neither was there birth certificate to back up the age of PV\/2. It is in line with her submission, the prosecution failed to prove the offence of rape against the appellant, she contended. ' Arguing on -the evidence of visual identification Ms. Masai disa~;Jreed with the finding of the trial court i"hat the same was .vvatertight. She contended that- it was wrong for the trial court to rely on PW2's piece of evidence to the effect that, she was assisted 5 J-- with Solar power to identify the appellant v\1 hen in fact the intensity of the same was not stated. PW2 ought to have described v1hether a bulb or tube light was shining . She contended further that the failure by PW2 to describe the appellant by. stating the type of clothes the same had worn on the fateful day and his physical app~a.rance entails that he was not properly identified. She added that as the incident occurred just by the. plac_e_ __ where the said wedding ceremony was held, logic dictates that there must have been a crowd of people and therefore it is highly probable . that . they would have seen, had it been that PW2 was. truly • raped. In other words, Ms. Masai argued that the prosecution ought • ..• to have brought other witnesses who must have attended wedding ceremony and witnessed the incident allegedly occurred just by tt:'.le . . ,, p!ace thereof. She contended further that the prosecution did not tender in evidence the cautioned statement allegedly suggesting that the appellant had confessed commission of the offence. With the laxity in question i't cannot be said the prosecution proved the case against the appellant beyond reasonable doubt, she charged. She concluded by saying the sentence of twelve strokes worked injustice to the appellant as the same is not consistent with 6 the offence he was charged with. She prayed this court to quash the conviction and sentence. Mr. Sarara on th.e other hand supported both. the conviction and sentence of the appellant. According to Mr. Sarara, the prosecution case was strong against the appellant. He argued that the voire dire conducted before the trial court has legal backup as . with the current changes in Law, it is only required to establish that a Child of tender age is telling the court the truth. In that light, the case of Kibute Otinied versus the Republic , Criminal Appeal No.300 o·f 2011 (CA. Dar es Salaam, unreported) is n_o longer relevant. ,,, He contended that as PW2 knew the appellant prior to the incident and when she met him at the wedding ceremony and _the fact that she encountered him for the second time when raped, the question of possibility of mistaken identifying of the appellant does not arise. Besides, PW2 was assisted with solar power to identify him, he argued. As regard the appellant's complaint on the failure by the prosecution to establish the age of. PW2 to v-1arrant the charge of statutory rape, he inclined to that fact but argued that P\/./2 must have been a person below the age of 18 years and therefore a child as per the law of the Child Act of 2009 judging from her appearance notvvithstanding that a birth certificate to that. effect was not 7 -- --= - - ,-- tendered in evidence. He inclined to the fact that slnce 'the aae of '-,J P'vV2 ·was not established the trial court had no justification to sentence the appellant to life imprisonment. Consistent with his submission l\~r. Sarara argued that whereas he supports conviction against the appellant, the sentence of life imprisonment and the t,Neive strokes of worked injustice to the appellant. ·Otherwise , he maintained there was sufficient evidence to ground his conviction. In her rejoinder Ms. Masai rnaintained her submission in Chief. She urged this court to quash the conviction and sentence and set the same appellant tree. vVhether the prosecution case \.Vas proved beyond reasonable doubt that is what I shall endeavor to answer. It should be noted from the outset that the voire dire purported to have .i been conducted by the trial court did not meet the requiren1ent set under Section 127 of the Evidence Act, Cap 6 of the revised lavv1s as arr1ended by Section 26 of the written laws (Miscellaneous Amendments) (No.2) Act, 2016 where for there to be a'proper Voire d!re the record must show that a chi!d of tender age had promised to tell the court the truth. In the record of the trial court the court only recorded that PW2 knew the meaning of the truth and false but it did not so far as proceedings will bear evidence indicate that PW2 had promised to tell the court the truth. VVith the laxity in question, it is doubtful to suggest that PW 1 had intended to tell the 8 court the truth and the truth only. For it ls one thing to understand the meaning of the truth but is quite another to promise the court that the truth will come out in the course of one's testimony. In the •.• 1 ,. • absence of the record to the effect that PW2 promised the trial court that she would tell the truth I hold that the voire dire was not properly conducted . This court \"✓ ill regard th_e evidence of PW2 as unsworn as per the case of Kimbute Otiniel (supra). Having gone through the testimonies of prosecution \t-✓itnesses befcre the trial court I also find the evidence as to the age of PW2 lacking . There is nowhere in the 'testimonies of prosecution witnesses vvhere one of them preferably F'W2 herself or PW3 (her mother) happened to have testified on the age of PW2 which would have justified the charge of statutory rape against the appellant. The evidence in that regard ought to have come from PW2, PV\/3 or- through her birth -certificate (if any). With the said short coming the prosecution . cannot be said to have proved the offence against . the appellant under Section 130(2) (e ) {suprc) beyond reasonable doubt (see 'the ccse of Andrea Francis versus il!e Repub!ric: Criminal tl\ppea~ No. l73of 20-14 (CA, Dodoma_, unreported}. in iine vvith the foregoing finding I might as well say a purported _Voire dire of PW2 was equally l!logical as unsure of the age of PW2 thei·e vvas no point conducting it. 9 ! am also of the view that the appellant cannot be said to have been irnpeccobly identified by PW2, certainly not with the undefin~q sources _of light in _terms of. its intensity. It has been stated time and again that evidence of visual identification is of the 'Neokest kind. A person can be honest and yet mistaken. In the imp~Jgned jucigment, PW2 simply said there was solar light without any attempt to elaborate on the quality of the light. In my opinion in the situation as the present one, where PW2 clairned to identify the appellant at night, it is never safe to rely on such piece of evidence, particularly so, because the intensity of soler light was not stated. r- This is notwithstanding the fact that PW2 claimed to have knovvn the •.. · -f appellant prior to the incident, besides her version of story that she ·• met \Vlth hin1 in the wedding ceremony has not been so far backed .7 ·:_.,.~- up by other \t\titnesses given that the appellant had also·'raised the . ,t t'·. defence of alibi. The emphasis that the evidence of 1:.visual identification must be absolutely water tight has been restated in a number of cases to mention just a few, the case of Rashid Seba vers~Js the Republic, Criminal Appeal No. 95 of-2005, CA~ Mwanza, unr~pcrted, Richard Mawoko and another versus, the Republic, Crirninal Appeal No. 366 of 2015, CA.-Dodoma, lH)reported,al! these restate the position in Waziri Aman versus Republic [1980] TlR 250. It is also ' evident from the ._ ' . judgment of the trlal court, ' '. ~ ·. . ,. it did not : ·.. , ' take cognizance of the defence of alibi raised by the appellant when it ought to irrespective of the fact that the appellant did not 10 furnish the particulars of the same to it'. The appel!anf s failure to · furnish the particulars as aforesaid would only warrant i'he triai court not to accord Weight' to it but frs failure to take cognizance thereof an1ounts to a mis-trial and a consequen"tfal · rnlscarriage of justice. Pertinent to this is the case of Rashid Seba versus the Republic, CrimJnal Appeal No. 95 of 2005 (CA, Mwanza, Unreported). As I am of the considered opinion that the case against the appellant was not proved beyond reasonable doubt, I find myself not compelled to consider other grounds of appeal. F()r the foregoing reasons this court cannot avoiq quashing the conviction and sentence against the appellant. Consequently, this court orders the immediate release of the appeliant unless held lawful for any other reasons. It is so ordered. Appeal allowed . ~~,Ji~ r,M~nsoor JUl)GE 25th AlPgust, 2017 11