20170620 TZHC Mbeya2

IN THE HIGH COURT OF TANZANIA AT MBEYA DC. CRIMINAL APPEAL NO. 180 OF 2016 (Original Criminal Case No. 57 of 201 6 from Resident Magistrate Court of Mbeya) 1tI.AS}I..AICA MTWEVE • . ........... . . . . . . . ........................... VERSUS THE REPUBLIC . . . . . . . . . . . .. . .. ......... ........ ........... . ......R.ESPONDEN'l' JUDGMENT Date of last Order: 1910612017 Date of Judgment: 2010612017 A.F. NGWALA, J. The appellant one Mashaka Mtweve was charged and convicted of two counts. The 1st being Rape c/ss 130 (1) (2) (e) and 131 (1). The 2nd count being unnatural offence c/s 154 (1) (a) of the Penal Code [Cap. 16 R. E. 20021 before the Resident Magistrate Court of Mbeya. The appellant was convicted and sentenced to thirty (30) years imprisonment on each count. The sentences were ordered to run concurrently. Aggrieved with the said decision of the trial court he has lodged this appeal. It was alleged that on the diverse dates between January and March 2016 at Nzovwe area- Iyunga in the City and Region of Mbeya, the appellant unlawfully had carnal knowledge of one Joyce d/o Page 1 of 9 Mohamed a girl of 12 years. He did the same act against the order of her nature. The appellant filed his own rriemorandum of appeal. His main grounds of • complairiit against the decision of the Resident Magistrate Court are basically four. First, that he was wrongly convicted on the basis of verï weak evidence of PW1, PW2, PW3 and PW5. Second, the trial magistrate convicted the appellant without complying with Section 235(1) of the Criminal Procedure Act. Third, the trial magistrate disregarded the defense case, and fourth, a common point that the charge against the appellant was not proved by the prosecution side beyond reasonable doubt. The appellant who was unrepresented prayed for this court to adopt his grounds of appeal as they are self explanatory. He' further prayed for the conviction and sentence to be set aside. For the Respondent or Republic in this appeal, is Miss Zena James, learned State Attorney who did not support the appeal on the reasonS that the evidence of PW1, PW2 and PW5 was not hearsay. The victim's evidence was sufficient to convict the appellant as per Section 127(7) of the Evidence Act [Cap. 6 R.E 2002]. She also cited the case of Seleflian Makumba V. R (2006) T. L. R. 379. The learned State Attorney went on submitting that the evidence of PW3 was corroborated with the evidence of PW4, the doctor. The appellant did not even cross examine PW3 which was his statutory Page 2 of 9 right. The fact that the trial magistrate convicted the appellant without citing Section 235(1) of the Criminal Procedure Act was not fatal as it is. curable under Section 388 of the same Criminal Procedure Act, [Cap.20 R. E. 2002]. Regarding the complained admission of the evidence of PW3 under Section 34(1) and (2)(b) of the Tanzania Evidence Act, the learned State Attorney submitted that the court did so because the said witness was nowhere to be found. The Notice was given and the law was complied with. The State Attorney further submitted that the defense case was considered. The evidence was analyzed to the satisfaction of the Court. Having heard the parties to this appeal, the only question that needs to be determined by this court is whether or not the appellant was properly convicted. Miss Zena for the respondent contended that the evidence of PW3, the victim was corroborated with that of PW4, the doctor who examined the victim. In short PW4's evidence was that:- "When I examined her she had no bruises. We tested for HIV and STD's and the results were negative. However her hymen was perforated. The conclusion was that she had been having sexual intercourse previously. That is why she had no bruises. Normally a victim who has just been raped recently will have bruises, blood and pains." Page 3 of 9 The evidence of PW3, the victim in short was thus:-. ''... I ran away and sleep in unfinished house 'pagala'. I ran away because I was afraid of sleeping inside as uncle would rape me. I slept there for four days. Aunt Dedora found me at Mama Mchungaji's house. She asked me why I ran away but I did not tell her the reason.., he touched my breasts when mother was washing the dishes. He spit in my anus. When I go for a long call I get pain." Looking at the evidence of the PW3 and PW4, there is nowhere PW4 corroborates that of PW3, the victim. It is so because PW3 said when she went for a long call she felt pain, but PW4 testified that normally a victim who has just been raped recently will have bruises, blood and pains. The doctor also never testified on the aspect that the victim was carnal known against the order of nature. This does not corroborate PW3 as contended by Miss Zena, learned State Attorney. It should be noted that the testimony of PW3 needed corroboration by other independent evidence, as it was stated in the case of Mkubwa Said Omari v. SMZ (1992) T. L. R. 365, The Court of Appeal of Tanzania held that:- "P. W.4 was a witness whose evidence needed corroboration before it could be accepted and acted upon. Such evidence which requires corroboration could not itself corroborate accomplice evidence." Page 4 of 9 Generally, PW1 did not witness the appellant raping PW3. She was only told by the victim that she was being raped by the appellant in the presence of her mother, one KULWA JOSEPH, whom in her statements she says that the victim had a tendency of escaping from home several times and she used to stay there days to one week unknowingly. The mother of PW3 disputed the fact that the appellant used to rape PW3. The statements by KULWA JOSEPH and the evidence by PW1 do not have nexus or do not show and connect the appellant with the alleged offences. The allegation by PW1 needed corroboration as they are typically hearsay. In the case of Mohamed Katindi and Another v. Republic (1986) T. L. R. 134, Lugakingira, J. held inter alia that:- "Though in such circumstances corroboration would not be required as a matter of law, it would hardly ever be safe in practice to convict unless there was corroboration." The appellant complains that in convicting him, the trial magistrate based her conviction on the evidence of PW3, a child of a tender age. I shall start with a voire dire test as was conducted by the trial magistrate. At page 10 of the typed proceedings of the trial court the voire dire test was conducted which I will not reproduce it all here. The trial magistrate after she had conducted the voire dire test stated that:- "After examining the said child I am of the settled opinion that she posses sufficient intelligence to answer the Page 6 of 9 questions put to her. However, she does not know the meaning of an oath thus her evidence will be unsworn." The same trial magistrate stated that none of the prosecution witnesses witnessed the appellant committing such acts. The only reliable witness was PW3, the victim. Thus the victim's evidence was unsworn. The trial magistrate at first discredited the evidence of PW 1, then from unknown reasons she proceeded to convict the appellant basing on the already discredited evidence which was not corroborated with any extra piece of evidence. It is a well settled principle that in rape cases, the prosecution must prove that rape was committed in a specified date in the charge sheet. That is to say the exact date of rape must be stated. PW3 told the trial court that she was carnally known by the appellant against her consent on unknown dates in the house in which her mother had locked her in. When her mother returned, the appellant left. On 02/03/20 16 around 19:00 hrs PW1 was informed by PW3 of the said acts, thereafter she took PW3 to the street chairman. Later on the appellant was arrested. PW3 however did not mention to PW1 the exact date when she was raped by the appellant. In the case of Sanke Donald @ Shapange V. Republic, Criminal Appeal No. 408 of 2013, Rutakangwa, J. A.: held that:- "On charge of rape, it is incumbent upon the prosecution to lead evidence to prove that the accused committed the offence of rape on the date mentioned in the charge sheet". Page 7 of 9 - In the light of this evjdence I am inclined to agree with the appellant that the prosecution totally failed to prove even on a balance of probabilities let alone to the standard of proof beyond reasonable doubt that the appellant raped PW3. The evidence of KULWA JOSEPH and that of PW4, and his expert opinion deserves a greater weight than that of PW3 who as already pointed out did not give details in connection with the counts which the appellant was convicted of. In the circumstances, the evidence tendered during trial did not advance the prosecution case. In the event and for the foregoing reasons, I allow the appeal. Quash the conviction and set aside the sentence. The appellant is to be released from prison forthwith unless otherwise lawfully held. Order Accordingly. A.F. Ngwala Judge 20/06/2017 Page 8of9 Date: 20/06/2017 Coram: A. F. Ngwala, J. Appellant: Present For Republic: Miss Benadetha Thomas (State Attorney) Court: Judgment delivered in Court in the presence of the parties. Court: Right of Appeal to the Court of Appeal of Tanzania explained. '.'. ? 1 /4 '••). - )4"1 A.F. Ngwala --., '.. Judge •- , 20/06/2017 -.----, Page 9 of 9