20170825 TZHC Dodoma

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 DODO1'V\A MSAFIRI s/o NDAHANI SIJIA ......................... . APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGEMENT Date of Judgment - 25/8/2017 • : ! '', L. /\~ansoor, 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 (P'vV2J a nine year old girl and put for\,vard the defence o,f ali~i ~e .was convicted and sentenced to life irnprisonment with twelve strokes of cones. The prosecution - case -started with the evldence of PV✓ 1, • _,__>.~ ••,-~ •~.•-...-- ••:~,- •• - • _,,H'<•" .. ~-· - - . ·--- --~ - ---~~---- -~.......--~--- .. •• ,,_-,,_- ~ •-••• -- -------- --- - n,obias ty~9ngg_~_g doctor fr_Q'I',L--g0arnwinq Ggyernment __H(?~p_i!9_1! ~·-- ·- . Dodoma. He testified that on 7th November, 2016, he received 1 PW2, who vvas brought by a wornan police (WP). It was alleged that P'vV2 \Nas found with bruises and lacertio0 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. speaking the truth. She (P\/V2) told 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 where. 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 wenf to report the matter to Chamwino police Station after they had reported first to a eha.irm~on.- .1lte~police 'took her to the hospital for treatment. P\/✓ 2 said s·heidentified the appellant. ··-·- ---.. ----"=~_.:,..:._·-1--pw,a; Sau~Mlalo,- testified that PW2 is his daughter. He said on ------z~c-1D;1:@:'v'~en:i:b8r~ '2016 at about 3.00 hrs whil.e at home one Sinzo Mkoyi - - - _,___~~ ' - -~ ., ~- ~ ~ - . - - .. •• •.. - -~--- ~ ·- .. -· .. , ., a~=are_d,~a:rrd::;foftl him of th-e incident.· Re 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 Mkoyi'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 7 th 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 7 th Novernber, 2016, at night he interrogated the appellant. Upon interrogation, the appellant inclined .· . '. that on . 7th November, . .. 2016 while con1ing '· frorn the. home of , ,.. ' .. ' one Mhinzo Chipaya where there was celebration going onf 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 (Milka Nganyeri - DW2} ofl-the material day. He ·testified that besides DW2- his 001:J§R=f-er=eAe'-desee -Ndahani was also there at-their ho_mestead. By _-; _ ... _:_..__- ,.t~1e~,tiYfl-eFeH@ tl®®K-Sfi}~'€l-S'eml®~e.n€J_'.c_,\A@t@nya=eNgaina=,"iVent=+o~his-~~ -- --:·- . . -- -' -'- - .- -- - - - -- - - ~ - --- - ' - --- - - ~~~~--~~.:E1:::1~:J-k~t:ir:m-0t.al·~-e=w€.ts;'::f.001~1-EJ~t-t:rere0TTe~rrestecrand---tdk-~n~to----- 3 Chc,m,Nino Police 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 aiipi 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 V✓ere favourable for proper identification of the appellant. And that, ·, ' " .. . _as th~ appellant admitted commission of the offence during interrogation while. in police custody, the charges against him were with foundation. He was convicted and sentenced_ to suffen life imprisonment with twelve strokes. _ Aggrieved, he--Hf3f3ealed. to this court. He put forward four -§rounds of objection as follows; One, the voire dire was conducted ---:- ---~inviul:ation of the law as PW2's intelligence was no-t amply tested. - - -- T'½to, he was not properly identified and the age of PVV2 (the victim) ===•~-..WEls;;:;:rwe{.;.:.;p)r-eved-.=· -.:Pl'.lre-e,~trrec::fcriol-;--c-oart~,did-no-t-con5i der· h is"·d e fence - @fr,sr~fe@'.~tr-;4¥r~1&19t:=Fis+:crm:@F1t::'@f~~ctwel\t@j:;s"tv@kes w@~~<';r@'ei,F1cS4=--Hs'l€--"'-l@w:;-=--"~' - --- - - ...;, -~ - .c ::-__ 7 .::i?--=~c"~~ ~c,~ 4 When the appeal came for hearing, the appellant was represented by Ms. fv\asai, 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 . -- contravention of the lavv, as the record before it shows that PW2 did nol 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 Arnendments) (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'v2. It is in line with her submission.,.Jhe prosecution failed to prove the offence o-f~rc:e1pe _against the a-ppellanr, she .contencJed-. ==~~~-~--#_··;Aff~·wr~'f'"=-c>,~l~re"'~-evtel-er=rg~~=e·~~,,1:is=1:rul-=·ec-~rc::J-eAlifi sati 0 rr M;S":~Muserii=·==-=- ~ __ .:.__ - -'---~ ----a"isf;l,~-r:eed- wilh~n,e ff nding""""ITf-1•h"c-e-trinl-c-ourri"h-ot~th-e-sunTe-wn - -- -_,_ -- - ,__-- - -- --";_v~0ite1~ti.gl~t-.--Sl'le 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 with Solar power to identify the appellant 'Athen in fact the intensity of the same \NOS not stated. PW2 ought to have described vvhether 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 place where the said wedding ceremony \Vas held, logic dictates that there must have been a crowd of people and therefore it is highly probable that they \vould have seen, had it been that PW2 was truly · raped. In other words, Ms. Masai argued that the prosecution ought to have brought other vvitnesses who must have attended wedding ceremony and witnessed the incident allegedly occurred just by the p!ace thereof. She contended further that the prosecution did not tender in evid_ene_e the cautioned statement allegedly suggesting that the · -··•app·eHant had confessed comrnission of the offence. With the laxity in Jjl:Jes.tion. il catinot be said. the prosecution proved the case a.gainst the a~pellant be,¥ood reasonable doubt, she charged. - -- - _., ~-- :. - ·= --- ···· :--w@'.~~ec:Jdnjwstice::-t·odJ::ni1~-co10~ellant •a.s the same is . n0.t cohsistent 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 hos ·legal backup as . wi'th 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 no 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 hi111, he argued. As regard . the appellant's _comploint on . the ·foil_ure by the · t· _..._ · -=·pres~ct:tJ:O-fl.,,..10•~@•s.t·ab-1·· • rsh-t·h" · e- 9-§Er":O - · · -f-!;:l-w-·l'."\.-1·· •--- · · · th- "".r- • ±" a.... v10rran,,- .. e----G·h-orge- .. - --o·f·---- - · -1,. =~-- ... --. --"·S-i'Elt,~f{3f'¥Ft@f)_:_W-:~~Jt~rcfrrre~cJ~=t~t~r:f:c:rct~bt:1~t ;,a rgued=,j h--e.rt-- P·V'•FP..•Em-r.rst~~=~ ,.,, 0 •· . . --·:~<,b:et:¾e::b=e:eJ.:,,1~.::{:1!P:e:rso-n~b-etow:tkre;:ag:e."of-7l:8:.ye-ars-_arrd=trreretore.. Q. ct:illd..· ·. -,--- ,_,..;;..,~·.,-'- . -~ ·~ - ,_ - - - -· - - -- ..,.. - '------ - - ' ~. - - ~---~--~---~'='::'=.'==l~O~f7er~~t-m~l'etw=<=Yf~l'7·B~®f::J·Hcl~A~'Fe-f=2009~jl:Jctg in ~r-fr:©m=¥l@T-',,Cell3P7e·ettelrree ' ' · - - notvvithst-anding that a birth certificate to that effect was not 7 tendered in evidence. He inclined to the fact that since the aae of '--' PW2 \NOS· not established the trial court had no justification to sentence the appellant to life imprisonrnent. Consistent with his submission ,\~r. Sarara argued thGt whereas he supports conviction against the appellant, the sentence of iife imprisonment and the t,Nelve strokes of worked injustice to the appellant. Otherwise ; he maintained there was sufficient evidence to ground his conviction. In her rejoinder Ms. Masai maintained her submission in Chief. She urged this court to quash the conviction and sentence and set the same appellant tree. Whether the prosecution case 'NOS 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· been conducted by the trial court did not meet the requiren,ent set under Section 127 of the Evidence Act, Cap 6 of the revised laws as arnended by Section 26 of the written laws (Miscellaneous Amendments) (No.2) Act, 2016 where for there to be a proper Voire --------------"dlre'-- tne--r::ecord rr:ust show that-a child of tender age had prornised --,--- ro=te-s~i=t~coort=the4roth::--!trthec-:cre-cord~of4lte~11ial==coorr,th-e court - · ---c,rrlrrocarctEfa•=-thGrr RW2 C k~H-re·--rrfecfn in g·- of·tr=re== nutn-a na·:-ra lse -::.c:__-=--~ .:::~ ::: ~ :.:~ orrf- it ~aitJ:.i1df=&~--fg~s--45i:G=eee-ding S" wl IF'o ear- e9ide A'de=Tn cffcafe-' t ffc::ff---:~ -=c:- ',~~~~~- .-~;_cc_ - -,,,~-, FWZ l1d'i§F=l3'r0mTs~ea--=fcr- -le fl='==-f fie:~ %0 Orf~t-P:re' trtTff'l ~-==-Vv itl-'i =trTe- ftTxffrifi -------. 7 ~- - - - •• _• ••• - --- - - - -• - -•-- ----- "•-• ,_._ • - - ••-- "" - •- •A• • - - - --• •- -• question, it is doubtful to suggest that PWl had intended to tell the 8 court the truth and the truth only. For it is one thing to understand --···---t-r-ie meaning of the truth but is quite another to promise the court that the truth will come out in t~e course of one's testimony. In the absence of the record to the eff~ct that PW2 promised the trial court that she would tell the truth I hold that the voire dire was not properly conducted . This court 'Nill regard the evidence of PW2 as unsworn as per the case of Kimbute Otiniel {supra). Having gone through the testimonies of prosecution V✓itnesses before the trial c::ourt I also find the evidence as to the age of PW2 lacking . There is nowhere in the testimonies of prosecution witnesses where one of them preferably PW2 herself or PW3 (her rnother) happened to have testified on the age of PW2 vvhich \Atould 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 ~aid short coming the prosecution cannot be said to have proved the offence against the- a_ppella11t under Section 130(2} (e } {supra) beyond reasonable ,:--.:-c~~-::_-,,~10Q¥)t.c{$_ee-'the-ze.ose_,_,Of7Al')qrea~Jran.cis:veF-S\JS·~Jte'"Re::,l:bHcR Criminal . -''..-~-----,,;,.:2"'APR~~iN.o..:--cll:;;.\:OJ;2014,.(CA,-Dodoma,.unreported).- . - .~ . '. - . . . . . -~~-- -·--·--- - _· ---..;;;...=-- - -- - --~--- - - ... __ .,_t~.~Jaj~:13_,~1Ltl+:-#re-sf0.fE~-§e_tr;}fr:-fin~§=En1ighta~welLs.e1~~crpurp-ort-ed"~--~~,,--~-~-- ." _'c~X~Jf>=#JJr-e-:::efu:eV¥z.~v..v'.~£-S.quall½dHe_gjB;.aJ=-@-&=-tjl9$tffe-e~thErdge- of- PW2- -- --- 9 ' ! am also of the view that the appellant cannot be said to have been lrnpeccobly identified by PW2, certainly not wlth the undefin~q sour~es of light in terms of_ its jntensiiy. It has been stated time and again that evidence of visual identification is of the vveckest kind. A person can be_ honest and yet mistaken. In the irr:1~~Jgned judgment, PW2 sirnply 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 PvV2 claimed 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. This is notwithstanding the fact that P\N2 claimed to have knovvn the appellant prior 'to the incident, besides her version of story that she met \Vith hirn in the wedding ceremony has not been so far backed up by other witnesses given that the appellan·t had also raised the defence of alibi. The emphasis that the evidence of visual identification n1ust be absolutely water -tight has been restated in a number of cases to mention just a few, the case .of Rashid Seba .~ ~ .. _':~¥etSu!E-the Repu_bUC;-Criminal Appeal No. 95 of 2005, CA~ Mwanza, ..~ .I ,:; '.' ---"":•&r!fep'erted, Richard.,, Mawoko .and~--0nother ---versus, --the RepubHc: =--~-_:_:-=-::c-Crimi:1al AP-p.eal-N_o.:_366_o'f-2015;....GA..-.Dodomo,-unreported~all these> -- re-sta-te--the--~91irt. Aman veTsus Republic [1980j TLR 250. -~--- -~-:-__ -_- __-__ __,._,___ --__ 1 t~et+~evtdent-·from-theiudgrnent of tne n·ro~ c~ourf,c ~ffclid nof ~ - ~=- --~ -i-- =~===~!®-7!Ke't:G~....,__....=c--@~_£100tZ€1J~Y~ec~f=th-e defeFtea= of·olicf Yofsed E,~i"ff1e-- appelfanf -~- when it ought to irrespective of the facl that the appellant did not 10 .,.. -cc_--::c-::=--;---- - .cc-.,,.---•c ---::.-,:--- --i- • . i-~'ii;,., . furnish i"he particulars of the same.J_o_lt_Jhe~-app.eJJ0-nf s failure to - . ___ fLlrnlsh the particul.ors as aforesaid .would only warrant Jh-e_Jriai court~··~-: .. n6flcr·accorcf--vveTghffo it.but its failure 16·1akecogr1francethereof----•-··__ . . arnoiJnts to a mis-trial and a co'nsequentfal . hliscarridge of justice. --- . - :•·Pertinent to .thi;· ·-i~ "\he: ca·s-e of .R~;hi·d--S~ba .;~rsus. the Republic; ' . - ·cnm~na1·Appecil No. 95 of 2005°-CCA, Mwcfriza,Unieporte-d}.-· As I am of the considered opinion that the case against the· 1j,.·· .' .• . appellani· was not proved beyond reasonable doubt, I find myself not compelled to consider other grounds of appeal. Fo,r the foregoing_ reasons this court cannot avoid 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 al!owed . ~/l'.V- [. Mansoor JUt)GE 25 th Au.gust, 2017 11