20170825 TZHC Dodoma 1

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 l"ME REPUBLIC ... .... ................. . " ,. RESPONDENT JUDGEMENT Dote of Judgment- 25/8/2017 L. Mansoor, J. The appellant was chorg~d 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, Cop. 16 of the Revised Lavvs. · Although, he declined to have raped one Shila Mlabo (PW2) a. r1ine year o!d girl and put forward the defence of alibi he was convicted and sentenced to life lrnprisonment with twelve strokes of canes-.- - ---- - -- . -· - ..Jhe__e_v:id.~r.ic? Th~=·Ji2£9~Q_G:_ut_ion~:--case___ started __v11,ith------ ----- - - --- ,-- - uf p~ 1, ·- Thobias ·Ml0ncl0, • a doctor frorn Chamwino Govern merit Hospitol, Dodorna. He testified that on 7th November, 2016, he received 1 PW2, vvho 'vVas brought by a woman police (WP). It was alleged that PW2 was found V✓ith bruises and lacertion of hervargina. Her skirt was with blood stains.. A PF3 evidencing treatment 'NOS . ' .. admitted as exhibit P 1 before the trial Court. After conducting voire dire of PW2 the trial court proceeded to record her evidence ds the trial court was of the opinion that she understood the duty of speaking the truth. She (PW2) told the trial court that on 7th November, 2016 at night she and her other .. colleagues were at the home of one lv\chizo. There, she felt tired and decided to go somewhere and rest. She slept just by the ploce where there was music .. There, v1hile asleep she learned that the appellant hod 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. Moma 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 Chalrrnan. The police took her to the hospital for: treatment. PW2 said she fdenliffed the appellcinL ... - --- --- --·· - - - - . - - · - · - - - · - - - - - - - - - - - - - - -- --- ----,-- ----~--.- --·-•- -· .. - - --------- . - -- . - - - - - - - . - - - . . - - · , ------- · - - · · r->·v·-✓~sao~,V"rlGl-o;-.t-estifie-d~that PW2 is his daughter. He said on 7th l\ley_en::iber,.2O16 at about 3:Q0 hrs while at home one Si,nzo Mkoyi _. <ip-peared andtolcfhim-ofthe in-cTcfenr .. H-e-sa,cton tfie materiarday _. . --'•-•·~--"'"-""'"~ ,_-,,-•-.·· ·--· ... -c•,,.. _ ..,. ~- --, . . -·-·- .. ,_,__.,___~---.- ____ ,,,- ,·.·- :-,__•----..:..,_,_ ..,__._._._.,:,....'""_:~-----~-- - there was a we<iJEiing ceremony at Mhinzo Mahiya's house.· Upon · 2 ·=---· -- . - -=-=-=-· =o:-•:=- - - ~ ::. . j__~~-_--__ ;_:_~=,~-~~~-=---- - reception of -the information he vvent to Leah l\Akoyl' s place where , he found P'vV2. He learned that PW2 was bleeding from her vagina. He testified further that the appellant was implicated by PW2 for she knev-1 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 a-t Chan1wino police station. There, he vvas ordered to carryon an investigation in respect of the offence that the appellant was implicated. On 7th November, 2016, at night he interrogated the appellant. Upon interrogation, the appellant in_clined that on _7 th November, 2016 while coming from the home .of one i\t\hinzo Chipaya where there was celebration going on, he found PV'/2 who had slept near the music . There, he undressed PW2: and raped her. In other words, PW4 said upon an interview the' appeHant confessed commission of the offence . . The appellant on the other_ hand declined cornn1ission of the of_fence. He said, he was at boJne wHh _his _mother (N\ilk_q Nggnye_d_~ DW2) on-· -tMe---material day. He testified that besides DW2 his datJahterone :Jesct:r ~ldah-a-ni•was also there at their homestead. By - - •.J:. ' . ' .' ·- . ·-· - ·- . --the. t='rm-e-0n-e7acksun-M-osernla~and··Matonya Ngaina went to his ~ -place, he found he had already gone to his grandmother, o_t:")e - - -- ·- ~ _..,;...;.;. ---·- Chikumbii. - Ultimately he was found there, ne arrested and taken to 3 - --------=-·--- -~-- - -- ,:-- _____ _ ·: __~~-i--.~--- - -~~- -- - - ------,~----~-~~;:;~_:.;~_ - ·c......--==-:,._r..:::-=- -:=-.• - Chamwino 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 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 \NOS proved beyond reasonable doubt as according to it the 'Conditions were favourable for proper identification .. of the appellant. . And . that, as the appellant admitted commission of the offence during interrogation while in police custody, the charges against hin1 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 i'he law as. PW2's intelligence was not amply tested. Two, hE:r was not properl'y.'.-tetarnifie_d and the age of PW2 (the victirn) -~-;~·wa~s:·not- prov_e_d. -:Ihre.e:r:Jhe=trial · eet:cJr::l=-EiLdn0l-consiaer----l'"lis defence ... •-- . -"·-etl'ilEi=re:tJf, tr-le"f>tJ14j,gc~rrient=@f ~twelve~s-t-rekes w0s-- 0§ainst-the-!aw~ -~--- -,: -,.-- · · - - 4 ~·~---- -_-·-::_ ·- ···-~~-_;-~-~- ,i,....--.· -~-----=---~ -~ - ----' ,_·--~~-~ When the oppeal came for hearing, the appeilant was represented by Ms. Masai, learned advocate while the Respondent/Republic was represented 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 law, as the record before 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 Amendments) (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 vvas there birth certificate to back up the age of PW2. It is in line with her submission, the prosecution failed to prove the offence of rape against the appellant, she contended . .---- -- -:----_" _,, _._~-~ ~Arguing ·on -tnff~itlEfrfce~or vi·sera1=::"'"identific<:1tion k!\s-; Masai-~-"-~ --- disagreed with the finding of -the trial court that the same was ~ ·----.,,. ~~ -~ ~ ··-· --·· -~· ·- ~· - • =-=-. ....... _......... --· ,;Js-• --~· ·-- • - - - - watE?rtight. 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 -, ~.-:-...:-----=----:=~ -~ - ---- with Solar power to identify the appellant ,-vhen in fact the intensity o-f the same was not stated. PW2 ought to have described whether a b.ulb or tube light was shining . She contended further that the failure by ·PV✓ 2 to describe the appellant by stating the type of clothes the same had worn on the fateful day and his physical appearance entails that he was not properly identified. She added that as the incident· occurred just by the place 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 V✓itnessed the incident allegedly occurred just by the place thereof. She contended further that the prosecution did not tender in evidence the cautioned statement allegedly suggesting that the appe!lant had confessed commission of the offence. With the lax\ty in question it cannot . be · said the prosecution proved the. cc::tse · -~::.~::~-.:c~ageirrst··th~e·:c:rpf:relk:fnrbeyondTeasonable doubt, ·she charged. - :-- ---=--------=-- ....;~-- :::-..- -··- --~-·- - - She concluded by saying the sentence of twelve strokes -,s. -- - • - work~d injustice to the appellant as the same is not consistent with- 6 - --·- :;~~::t;r~~"''c.: -• · -- •~ ... ~.·-·~~, •· the offence he was charged with. She prayed this court to quash the conviction and sentence. Mr. Sarara on the 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 vvith 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 of 2011 (CA. Dar es Salaam, unreported) is no longer relevant. He contended that as PW2 kneVv' 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 pros'ecutinn- to "establish the age of PW2 -to -warrant ·the char§e of- · - =-- --statutory~rape-,=h-e~inclinec:i=-to that- fact but ~argued-that" p·w2 must - hove~ been--cc:1-person below the age of 18 years andt~e~efo.re Q child - . . . . -- - - - · _ - - , ; . . . - - ... -- -- -·- - - .: ·- ___ .,;,_, ..-..:,. .......,;._.,.-:;..~---=~-=-~ __;_ ;-._ .,,_ as--~er- the-lo\N~~fithe Child Act of 2009 judging from her appeorance ,. - ~ ~- no tvvi th standing that a birth certificate to that effect was not 7 '..-::._~.·:'.~~-·-:_-:- ·- - ·-=-=--~~ -- ·- ---- ---~ - - - = - ,. .-.·--- . .- - .. ~ ~~- ~ , - - - - -~---=-::.··:__· --· tendered in evidence. He inclined to the fact that since the age of PV\12 was not established the trial court had no justification to sentence the appellant to life imprisonment. Consistent with ·his subrr1lssion Mr. Sarara argued that whereas he supports convic::tion against the appellant, the sentence of life imprisonment and the twelve 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 subrnission in Chief. She urged this court to quash the conviction and sentence and set the same appellant tree. Whether the prosecution case was proved beyond reasonable doubt that is what I shall endeavor to answer. It should be noled from the outset that the voire dire purported to hgve been conducted by the trial court did not meet the requirement set under Section 127 of the Evidence Act; Cap 6 of the revised laws as amended by Section 26 of the written laws (Miscellaneous Amendments) (No.2) Act, 20_16 where for there to be a proper Voire -dire the record must s~1ow that a child of tender age hoclpromised . ---- -- - - ~fo- teU-fne Court'fhff trutn. 'TrCthff=re~c~oni-·'of..oth~e'7Ctd-al--court the court - only=-recoYded -fffal P-w2- knew· ·the--·meaning· of the· truth and false --·"_ - -,- --~-· -~-- bot"lt,.dicfnot so .. far-as preeee€iiF1gs~-will bear~evidence~ir:Ydicate.~Jba.t~~~,~-:... - - PW2 had promised to tell the cotir+---the truth. With 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 is 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'$ testimony. In the absence of the record to the effect that P\/\/2 promised the trial court that she would tell the truth I hold that the voire dire was not properly conducted . This court ~viii regard the evidence of PW2 ·as unsworn as per the case of Kimbute Otiniel (supra). Having gone through the testimonies of prosecution witnesses · before the trial court I also find the evidence as to the age of PW2 l0cking . There is nowhere in the t.estimonie.s of prosecution witnesses ·\/\there· one of them preferably PW2 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, PW3 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 ) (supra) beyond reqsonable .-· •·•-,;, - dol.J~-t.:..(.see-the--ease- of Andrea Francis versus the Republic, Criminal. Appeal No~. l73:of.·2014{CA, Dodoma, unreported). "\. . . . . . . ~- . :, - .. there was no point conducting it. 9 -- ----- -·-- , = - ·-=-~~--- • I am c1lso of the view that the appellant cannot be said to.have been impeccably identified by PW2, certainly not with the undefined sol)rces of light in terms of its i0t~nsity. It has been stated time and again that evidence of visual identification is of the weakest kind. A person can be honest _and yet mistaken. In the.· impugned judgment, PW2 simply said there was so!ar light without any attempt to elaborate on the quality of the light.· In my opinion in the situation as the present one, 'Nhere PW2 claimed to identify the appellant at night, it is never sa'fe to rely on such piece of evidence, particularly so, because the intensity of solar light 'NOS not stated. · This is notwithstanding the fact that PW2 claimed to have known the appellant prior to the incident, besides her version of story that sh~ met vvith him in the wedding cerernony has not been so far backed up by other witnesses given that the appellant had also raised the defence of alibi. The emphasis that the evidence of 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 versus the Republic, Criminal Appeal No. 95 of 2005, CA- Mwanza, ;:._ _______. unreported,::---Riehard,,.-Mawoko_,-·~and..:::..anotber--'-,versus,:--th~- RepubHcc,<:f. -.Crkninat.Appeal No. 366 of2015, CA;;Do·doma, unreported,all these·< . . , -restate the posftion in-WaziriccAman--versus Republic ·[·l980]-TtR·250. - - -~~=:-::cc--:---'-·- - --- ILi,Sc-aJs.o~e~id.eoLfrorxLthe judgment. of the -t~iaL court, .iJ did not take cognizance of the defence of alibi raised by the appellant · when it ough-t-t-0--irres13ec-tive of the fact that the appellant did not 10 .. -~-~-----= ·,-· ;~· :;:~:_.- __ - -··". - -::::-. . Cl • furnish the particulars of the same to it. The appeilant's failure to furnish the particulars as aforesaid would only v1arrant the trial court nor to accord weight to it but its failure to take cognizance thereof ornounts to a mis-trial,· and a consequential miscarriage of justice. Pertinent to this is the case of Rashid Seba versus the Republic, · Criminal Appeal No. 95 of2005 (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. For the foregoing reasons this court cannot avoid quashing the · . . conviction and sentence against the appellant. Consequently, this court orders the immediate release of the appellant unless- held lawful for any other reasons. It is so ordered. Appeal allowed . JUDGE ~ ~ - - ~ ~ ~ - - 0 .••~.-• ---- .. - ·- ··-. ,_ ·- ~- ...•. - ··- ·- - .. -----~--------- 11 ·--- ----- ~-=--~=~':=:. ~-~~~::·._ ~~~--·_,_.-:._~--~~