20190403 TZHC Mwanza2

\ IN THE HIGH COURT OF TANZANIA , I IN THE DISTRICTi REGISTRY ATMWANZA I HC. CRIMINAL APPEAL NO. 188 · OF 2018 ! (Original criminal case No. 72 of 2017 of the District Court of Kwimba at Ngudu) . \ . KILUMBA MAYALA ...........................................................·.................APPELLANT I . VERSUS -- - - I . THE REPUBLIC ......... . t1••··············~········••11••····················••e••·············RESPONDENT I JUDGMENJ' I I 13/2/2019&03/64/2019 \ G. J. Mdemu, J; I l This is an appeal by Kilumba Mayala agaihst the decision of the District Court I of Kwimba in criminal case No. 72 of 2017 in which i the Court convicted him for the offence of rape and sentenced him to thirty (30) years prison term. This was on the I 20 th of March, 2018. According to the charge, thJ Appellant and one Sophia Maduka, the then second accused person got.charged joitjtly ·and together with cons~iracy to rape by soliciting one Shida Masai (PW2) to. be married by the Appellant. The . l - second count of rape was in respect of the Appellant only. The two offences were ' committ.ed on and between the 3 rd and 5th days \of October, 2017 in Isagala village within Kwimba District in Mwanza Region. j i. I At the trial of the Appellant and the then second accused, the prosecution I . summoned nine (9) witnesses . and in . the defence, the Appellant and .the then second 1 accused testified themselves. It was also tendered i11 evidence a PF3 (exhibit A) and ' caution statements, one for the Appellant and the \°ther for the then second accused _J 1 - --- ~----~ \ I I person. In the totality of evidence, the trial Court acquitted the Appellant and the then second accused for the offence of conspiracy as there was no evidence that ( there was a plan to have PW2 married to the Appellant through a bride price of six cows. The evidence on the charge of rape was watertight as the Appellant also confessed to have stayed with PW2 in his residence and raped her.. As stated earlier, the Court on this evidence convicted and sentenced him to a prison term of thirty ! (30) years. . l l The Appellant got aggrieved by that conviction and sentence, th1:1s the present appeal o~ six grounds -of appeal which are bridged into the .following main grounds of complaint; One, age of PW1 was not proved. Two, unresolved inconsistencies and contradictions in the ·prosec1.1tion witnesse·s, and three, that the defence evidence was not considered. On the 13 th of February, 2019, the Appellant appeared in person prosecuting ' the appeal. The Respondent Republic on that day had the service of ~s. Maryasinta Lazaro, learned State Attorney. In support of the appeal, the Appellant had nothing useful to submit save for pleading reliance to the grounds of appeal while adding briefly that, the whole case appears to be a coo~ed one. He thus prayed the appeal be allowed. '' ' On behalf of the Respondent Republic, Ms. Maryasinta Lazaro did riot support the appeal. She replied to the first ground of appeal that the Appellant admitted that PWl was 12 years of age and for that reasons, in terms of the law, consent to sexual ' intercourse is immaterial for purposes of rape. As to ground five of the complaint, the learned State Attorney submitted that, according to the Law of Marriage Act, Cap. 29, it is illegal for girls under the age of 12 years t9 be married .. Consent of parents is relevant when the girl is above 14 years of age. Replying on the second ground of appeal Ms. Maryasinta conceded that there is no documentary evidence tendered to prove the age of PW2 to be 12 years. I According to her, PW2 stated her age to be 12°_ years and the fact that her mot11er · (DW2) has not disputed tha,t age, then her age is confirmed to be 12 years. She . 1 ( added that, even villagers who were the first to complain on the purported mari:-iage . . are aware that PWZ is of tender age. With this, she thought the issues of age of PW2_ .I . ·to be 12 years has been resolved. \ As to contradictions in the prosecution evidence, the learned State Attorney submitted that, such c~ntradictions relate to the issue of paying bride price. It has . nothing to do with rape. She added that, even sexual intercourse done between PW2 · . and one Hoja as testified was prior _to the rape committed by the Appellant. On those premises, Ms. Maryasinta stood firmly that the c~arge of rape has been proved. She urged me to dismiss the appeal. I The Appellant rejoined briefly that, PW2 never I appeared . in his premises• and . . I added t~at there is no proof of her age which is a relevant fact in the circumstances. I He reiterated his previous position that the appeal, be allowed. This was all from the parties. I have careful listened the parties in their :submissions for and against the gro.unds of appeal and also considered the evidence on record and found not ' . disputed that, the· Appellant is a grandfather to PW2 and that t~1e latter on several occasions was asked by her mother (DW2) to assist the Appellant in domestic works. The issue to be proved is whether the AppeVant raped PW2 on and between 13th to 15th ofOctober,2017. I • • l I In his defence, the Appellant among others stated that, PW2 and her mother (DW2) were at his residence for three days. In his submission when hearing the . appeal, he denied to have had the victim in his pre1nises. In my view,this is a mere lie and is unfounded. There is ample evidence that PW2 used to assi_st the Appellant in performing domestic works. 1- , l _Going to the ground of appeal, the Appe1lai1t complained that the age of the ; . victim PW2 was not proved. Ms. Maryasirita -L~zaro stated that the Appellant was aware of that age and the fact that t~e mother of the victim who testified as DW2 . . never contested that the victim is not of tender age, then there is cogent evidence . . I . . that PW2 _was 12 years of age. She however concede_d that there is no any· documentation to prove the age of PW2. Is this evidence on proof of age of PW2? I What I have noted regarding age of PW2 is that, there are a variety of stories. It should be noted that all through her testimony, PW2 never s_tated her age. Her age . . . app_eared when she was about to testify but there .was no special means to inquire and prove her age. The charge discloses that she is 12 years the story which differs with that of PWl who testified that PW2 is 14 years of age. PW7~ a doctor who ! examined PW2 stated that the latter is 12 years of age which is contrary to the -testimony of PW6 who simply stated that PW2 is under 18 years of age. With this, 1 and in absence of the e~idence from the mother of PW2, I am of the vi~w that there is no proof about the age of PW2. I do not agree with the observation of the learned State Attorney that since DW2, the mother, did not contest that the victim her I daughter (PW2) is not of tender age, then, she is. It is trite law that age of the victim in sexual offences must be specifically proved either by a birth certificate issued by ' relevant authorities or by way of oral evidence from the parent of the victim. In the present case there is neither a birth certificate nor evidence from the parent of PW2 regarding the issue of age. It cannot therefore be!taken for granted and assume that. the victim is of 12 years. ; Regarding unresolved inconsiste~cies and contradictions in the prosecution 1 case, the first one on age has been resolve. Before looking on such inconsistencies and contradictions, I should resolve another legal ,controversy. One, the learned trial I Magistrate took the evidence of .PW2 without taking oath: At page 11 of the proceedings, the learned trial Magistrate condu_cted vore dire test. This exercise, in ' terms of the Written Laws (Miscellaneous Amendments) Act, No. 2 of 2016 which amended the provision~ of section 127 of the Evidence Act, Cap. 6 was irrelevant. However, affer .the iearned trial Magistrate go~ satisfied that PW2. understood the (. nature of oath, then an oath should have been admi11istered to her before taking her evidence. °The· second anomaly" in the proceedings .is that, the learned trial Magistrate I did not sign the evidence of PW2, PW3 and PWS·. This contravened the provisions of •. . I section 210 (1) (a)- of the Criminal Procedure Act, Cap. 20 requiring the trial Magistrate . . to sign in the evidence . of a witneJs I he recorded. .. Failur~ to sign. the testimony of witnesses is as good as if there is no evidence taken-an_d the remedy is to order retrial. I have considered the issue of not administering oath in recording the evidence of PW2 and that of not signing evid~nce of witne~ses for purposes of ' looking whether a retrial be ordered. However, I have restrained myself to order a retrial due to weaknesses in the prosecution cale I regarding proof of the charge • of rape. Below are my observations, which in turn, l will be dealing w.ith the complaint . I . of the Appellant that the charge of rape was not proved. ! I should begin with caution statement, exhibit "B". The learned Magistrate . I . deployed in evidence the caution statement in hi_s· findings. However, the statement . - was not read in Court after its being admitted. This denied the Appellant to cross exami!le on the contents of ,it and therefore it is akain~t a fair hearing. Regarding the PF3, there are information which is against the facts of the case. According to the charge, PW2 was raped for three conservative dJys. The last intercourse was on 5th of October, 2017. The PF3 shows that approximate age of injury is 4 days while the event was reported the same day and medica·l kxamination got done on the 6 of I October, 2017. There is inconsistency with the purported real,ity. The second deficiency is that~ PW7. who ex~mined the victiJ stated that she had. bruises.· The II statement which is similar to PW8 WP. 11643 PC Amina who examined also PW2 I . ' l 1 immediately after reporting to· police .. Howeve r, in her remarks in the PF3, PW7 never recorded that there wer'e bruises. I j Further contradictions are in -respect as to when and for how long PW2 I stayed with the Appellant. In this, the story f~om the prosecution is interesting. · PW2, the victim testified to have spent four nights with the Appellant, the· story which differs with that of PW7 .. who stated that it was five nights. . PW3 on his . part I was inconsistent as in his evidence in chief he said five days but when cross . ' examined he testified that _it was two days. Under t_he circumstance it was. unsafe to the learned trial Magistrate to base conviction on these unresolved contradictions. It · is trite law that courts are duty bound to \ resolve such contradictions and inconsistencies to see if they go to the root of the matter before a conviction is based on such evidence. In my view, they were grave such that it was unsafe to convict on such evidenc_e. · ! · Importantly, perhaps, is whether there is eyidence that between 3rd and 5 th of October, 2017 the victim PW2 was with the Appellant. It should be noted that, all . I through her testimony, PW2 never stated which date she was with the Appellant. In her unsworn evidence at page 12 of the proceedings she testified as follows:- "The second a~cused my mother ordered te at 8:00 am on S~nday to. · search water for my grandfather 1st accused named Shilinda living at Usagala. I managed_ to bring water to the 1st accused at his house ancf the I 1st accused Shilinde wanted me to enter into' his bed room. When entered there in he wanted.me to wear off my under pant (chupi) and insisted me ' by forcing me and started to pull off his trouser and remain naked and insert his penis to my nyoo, virgin and stafted to pump his penis in my virgin there after the white fluid (sperm) came from it and he later clean I it with a cloth he ;got from his bag, he later: wanted me to cook and eat I there at his house room and him continue to repair the metal pot and 6 then went to the Itongwa centre at Usagala, then he return and found me asleep. On 3.00 pm, I went to search water arid i-n return I washed the ( utensil and later went to the machine to and return, then eat together. In later, I prepared the bed and sleep and the Accused repeated to sex with me once agail'! and sleep. In the next morning I washed the kitchen items and spend together where in that day night the 1 st Accused sexed with me 3 rd for third time. I spent with him for four days when I vyanted to go back home, the· 1 st Accused person resisted and retain me inside by close the door because it was night, I decided to remain until next day." In that testimony there are two anomalies. One is that PW2 does not state . . which Sunday when she was -ordered to go to the Appellant by DW2. Two, she testified to be with Shilinde. The Appellant name is Kilumba Mayala. It has not been proved by way of evidence whether Kilumba Mayala and Shilinde is one and ~he same person. As there is no specific date of which PW2 was with the Appellant for sexual intercourse, the·re is therefore no evidence :to prove the charge·. This was the position in Mathias Samweli Vs. R, Criminal Appeal No. 2 71 of 2009 (unreported) in which the Court of Appeal seating at Tabora made the following observation:- "We are of the opinion that when· a specific date, time and place is mentioned in the charge sheet, _the prosecution is obliged to prove that the offence was committed by the accused by giving cogent evidence and proof to that effect." What therefore is in the charge va~ies with the evidence. In this, the second count in the charge of rape is reproduced as here under;- 2ND COUNT FOR THE 1sr ACCUSED PERSON(S) _ STATEMENT OF THE OFFENCE: Rape c/s 130 (1) and 131(2) of the Penal Code • I • I Cap. 16 (RE 2002) 7 PARTICULARS OF TflE · OFFENCE: That K/LUMBA S/0 MAYALA charged on ]rd day of October, 2017 to 5th day of October, 2017 at about night time.at !saga/a_ Village within I<wimba District in M_wanza Regi.on did have Carnal Knowledge of one SHI/A D/0 MASAI a girl aged 12 years. NGU/IR/876/2017 STATION: NGUDU As seen, there are specific dates which are 3rd to 5th of October, 2017: The evidence of PW2 do not specify if she was with the Appellant on those dates. As -demonstrated above, other witnesses have given a different account on number of days the Appellant had intercourse with PW2. All this signify that they were not sure of their testimony. In the totality, it goes that the ~harge has not been proved. All said and done, I agree with the Appellant that the prosecution case has not been made out sufficiently enough to warrant his stay in custody. J consequently quash conviction and set aside the sentence of thirty (30) years prison term and order immediate release of the old man from custody unless lawful held. I order accordingly: ====j_ G.J.Mdemu Judge 03/04/2019 Dated at Mwanza ~his 03 rd day of March, 2019. G. J. Mdemu Judge 03/04/2019 8