20190603 TZHC Mwanza

IN THE HIGH COURT OF ·rANZANlA IN THE DISTRICT· REGISTRY I'. AT MWANZA HC. CRIMINAL APJ'.>EAL NO. 301 OF 20.18 (Oi-ig11wl Criminal Case No. 231 of 2015 of the District Court of Bunda) I JUMA S/0 PAULO@ TALL ........................................................................APPELLANT VERSUS THE REPUBUC ..................................... ;....... .\. ....................·.... ;................. RESPONDENT \ JUDGMENT I 24-/4/2019 & 3/6/2019 \ G. J. Mdemu, J; . Jurna Paulo @ Tall appealed to this C,ourt against the decision of the _District l Court of Bunda in which he was convicted of the rape of ·winfrida Mwita and ' sentenced to thirty-(30) years prison term. This was on z4r1i of June, 2016. According to. the record, in criminal case No. 231 of 2015; I in the District Court of Bunda, the Appellant raped Winfrida Mwita, a 12 years ~ld school girl on the 4 th of August, 2015 at Kinyambwiga village within Bunda District . I Fact of the case. are such that; on tha\ day of August, 2015, Winfrida Mwita (PW2) and Sikujua Mwema (PW3) pupils of'Kinyarnbwiga Primary School, met the Appellant in his cotton farm harvesting cotto'.n while on their way to school at 8.00 am. The Appellant summoned thern, they obeyed, hc then inquired on destruction of his farm fence suspecting the two pupils to be involved. He ordered PW3 to proceed to school while in a short while ordereci PW2 tio undressed and raped her in a nearby 'I bush. On completion of her desire, released PW2 who went straight crying to her I grandrn0ther . one Wegesc.1 Maligo and the . two reported to Nyabasarnba Waisc (PW4). - The Litter inCJl1ired to the vicriin towdrcb t·c!asons lor cry ,111d named the /\ppcllant to . l I I I ·have rapc·d lier. Jt is when PV\/4- inspected her and _observed that, she was bleeding ( with whitish fluid in her genital parts. • · ._ PW2 was then referred to Bunda P1lice Station by Chairman \/\f aise later on tha~ day, the police referred PW2 to Bunda DDJ-1. At the hospital, PVl/1 Nimrod Fares Mzunga examined her and observed as do -umented in the PF3 (Pl), that PW2 was bleeding . with raptured hymen. Spermatozla . ' got observed also. As PW2 named the 1 Appellant to PW4, an effort to arrest began and thus the same day got arrested. He 1 . was then charged subjected to trial and upbn conviction as .stated above, the Court . sentenced hi.111 to thirty (30) years prisdn term. Aggriev~d, the following four grounds of appeal got preferred:- 1. That, the trial Court erred in law and facts to shift the onus of proof to the appellant. 2. That, the evidence of PW2 and PWl witnesses of t~nder age could not crfrroborate by itself as those were u'nsworn. .I 3. That, the trial Court failed to resolve the contradictions arose between l PW2 and PW3 in favour of the appellant. 4 . 1,h a( t I?e prosecutwn. I / . not provec beyon d t I1e s Iw dow o,r · · ·case was 1 doubts. The appeal before me was argued on 24 th of April, 2019 by the Appellant fending for himself whereas the. Respond!nt Republic had the se1~vice of Ms. Maryasinta Lazaro, learned State Attorn~y. In !addition to the grounds of appeal, with a promise to rejoin after hearin·g the Respon!ient, the Appellant stated that, h~ was responsible with a different offence of assa\dting Baraka Okeji. He also stated to involve in a fight with Mwita Nyamuhanga and following the la.tter being released on police bail, the instant offence ~ot framed aga~iIL'>t the Appellant. He added also that, 2 --- .r PW1 who examined the victi1n (P~V:l) has ,\of st'1ted his qualifications. He observes ( the whoil' evidence a suspect one, thus prayrl the cippeaJ be allowed. Ms. Maryasinta Lazaro·, resisted the: appeal. She submitted on each ground _seriatim. fn the first ground of appeal Ms.\·Maryasinta faulted submissions of the Appellant as the burden of proof never shifted to the Appellant. She added that, the trial Magistrate considered the defence case Lnd I rejected it. • . l. . • I As to the second ground of appeal, the learned State Attorney submitted that, . . I . section. 127(7) of the evidence Act does not requite evidence of victim to be corroborated. She stated also that the e~ideLce I of PV\12 was taken under oath upon satisfaction in the voire dire test that PW2 understands the m_eaning of oath. She thus subm.itted to ·trust that evidence and .the falt that the PF3 which the Appellant did · not object, is also evident that PW2 was raped. . . I In the third ground of appeal, Ms.: Maryasinta submitted that, there is contradiction between the evidence of PW2land PVV3 on what happened. PW3 w_as , I released by the Appellant thus the latter remained with PW2 for raping business. She . I added that, PW3 also reported the matter. Sl:e concluded on this ground that, if this Court observes such contradiction, it shbuld not take into account as such contradictions ate not grave. I Submitting on· the fourth ground of aJpeal, it was her observation that, PW4 . ' observed PW2 and found her bleeding antl she (PW2) stated to P\N4- that, the I . . . Appellant raped her. A report to her grandmother who also referred her to hospital I and the fact that the Appe1lant is well kno1n to PW2, to Ms. Maryasinta, is ample evidence that it is the Appellant who raped P\'.\72. She concluded that, the appeal lacks merit and be dismissed. 3 .I ln rejoinder, as promised by the !\PPC\lc:rnt, his submission was such that PW}, Sikujua Mwema stated to have irnrn.cc!iately met with the brother of PW2 an·d had he committed that rape, PW3 coul~l have told u)c' said brother hence assisting . his arrest on the spot. He reiterated his previous positi~rn to have the appeal allowed. . .. . . I .. . . ·_ . Having listened the Appellant and the Respondent Republic arguing the appeal, one question to resolve is whethe1~ the trial Court properly analyzed the I evidence on record in its findings. In this, 1 will consider whether the prosecution has proved the charge against the Appellant be)ond reasonable doubts. As the learned State Attorney did, l will traverse in each gro~111d ·of complaint seriatim. I In ground one, the main complaint is on shift of the burden of proof to the accused. ln other words, the Appellant is alleging that the prosecution failed to discharge their duty of proving the casJ beyond reasonable doubts. As . Ms. Maryasinta stated, the learned trial Magistrat~ made analysis of the defence case and did not believe on it. By doing so, it does not tean that he left the Appellant to prove I his case. At page 7-8 of the judgment of the trial Court, the learned trial Magistrate made the following observat;on:- . I · "Of most importance is that PW2'S versibn was corroborated by PW3 who . . I had a similar story save the time when\ she left the accused person with PW2 when she was allowed to 90 to school. The version rose by the accused person that the instant easel is a fabricated one for· having grazing area conflict with PW2'S father, I con.sider it to be an after~lwught which Le; unsupported ~ith bny independent witness.. I . In that anal;sis of evidence, there is al1 observation of both prosecution and I . defence case and a trust was on the prosecution evidence. I do not think, if by doing th;1t, the Appel1an.t was given the. duty to p~ov~ his case. What 1 will consider is I -= .....::::::=- whether the trial Magistrate projJer!y arrived at that .analysis. This will be considered ( in the forthcoming grounds of zippe~1l. J (io not find any merit in this ground of appeal In the second ground of appeal, the Appellant raised two complaints. One is that, PW2 and PW3 being witnesses of tender age, their testimony require corroboration and two, that, they had unsworn testimony. Beginning with this latter, the trial Courts record at page 11 and 14 commences the testimonies of the two witnesses. After having conducted voire ·dire test to the two witnesses, the learned trial Court Magistrate made the following observatio_ns:- "Court: We have conducted voire dire test, as shown herein above and we are satisfied that the accused possesses sufficient intelligence to justify reception of her evidence and understands the duty of speaking the truth. As required for U/S 127 (2} of the Tanzania ·Evidence Act, No. 6 of 1967, Cap. 6 (RE. 2002) Sign: S. A. Kassonso - PDM 23/5/2016 PW3, sworn and states" Regarding the testimony of PW2, the record at page 11 reads as hereunder:- "Court: Having conducted a voire dire test as shown herein above, the Court is satisfied that, the witness possesses of sufficient intelligence lo justify the r~ception of her . evidence and understands the duty of duty of speaking the truth U/C 127 (2) of the Tanzania Evidence Act, Cap. 16. Sign: S. A. Kasson so - PDM _19/4/2016 PW2, sworn and states" ...,,. :::::;.::::.).c- 0 With this evidence on record, l agre~ vviLh the learned State Attorney that l complain_t of the "Appellant that PW:2 and P\f\/3 hc1d unswc>rn.evidence is unfounded. . As to .the requirement of cor;oboratiL in tl1e testimony of PW2 and PW3, I agree with th~ leg 0l position stc;ited by MJ. Maryasinta that, in ·terms of section 127(7) -of the Evidence Act, Cap. 6, evidenJe of a victim of sexual offence do not require corroboration. The section is re prod Jccd for clarity as hereunder:- "S. 127 (7) Notwithstanding the precLing provisions of .this section, . I . .. where in crimiiwl proceedings involving sexual offence the only . I . independent evidence is that ofi a child of tender years or of a victim of the s:exual offence, the Court shall receive the evidence, I and may after assessing the credjbility of the evidence of the child of tender yea rs of, as the case m1y be, the victim of sexua I offence ~n its own merits. Notwithstar!dinq that such evidence is not corroborated proceed to convictJ if jor reasons to be recorded· in the proceedin~s, the Court is sdtisjied that. the child of tender I years or the victim of sexual offence is telling nothing but the . I truth" From the section, one of the requirement is that, before· banking on uncorroborated evidence of the victim of sexLal offence, the Court should asses the credibility of the witness, and if on recorded rkasons is of the view that, the victim of sexual offences is telling the truth, a convictioJi may safely proceed. The issue now is on the credibility of th~ two witnesses. The 1Jarncd tri~l Magistrate got satisfaction I on this. At page 8 of the judgment, made the following observation:- . "I 11 the state of af!Cl i rs, I find it to be a prJed fact tho t, the accused did on 4 111 ofA-ugijst, 2015 have carnal lmowled)e of PWla 12 years aged girl. if ----= _z:;..cC I ' . I that is the case, J hereby ]incl PW2,' PW3 · und PWJ to be credible and . I • I I trustworthy witnesses'' . i I will also come to a finding in the ~1bove finding after a consideration of the following:- ·\ One, in evidence, PW2 stated to haye gone to her grandmother but did not . I state and name the Appellant a rapist as bbserved by the learned State Attorney. . . I I Page 12 of the proceedings is partly reproduced as hereunder:- , . "I went to my grandmothei- while c!ying. My grandmother is called Wagesa Grandmother took me to the ci1airman called Waise." I . I i All through her testimony, PW2 did nc)t disclose anything to her grandmother. Two, PW2 testified to have been- taken by \1er grandmo\her to the chairman. This grandmother much as did not testify, but according to PW4, the said grandmother I took PW2 to PW4- and not to the chairman as stated by PW2. The proceedings on this at page 17 in the evidence of PW4- partly read~:- \ "On 4 th of August, 2015 at around 11.00hours, I was at home at I I<inyambwiga village. While at home, the grandrnother of the victim, • I Wagessa Maligo came at home together wdh the victim who was I c1ying ..... Three, PW2 testified to have been referred to hospital by the pol_ice. But, according to PW4, the ·victi'm (PW2) went to hospital in the company of PW4's ' husband. The recor_d at page 17 of the procccclings is reproduced partly as hereunder:- "The victim {l/l(inf6da) was taken co the hospitul hy my husband Waise" \ I 7\ ======= ;;.=;;--,· I I 1 I . Of essence is the evidence of PWl who I does not state • frorri whom he received • J • L I PW2· for medical examination. Morc-imporhmtly is the PF3, exhibit Pl which names l(imwecha Waimela (07870385B2) to be u-J guardian of PWl. lt is a differel1t person· named by PVV4 Neither this person 1~01-\ WP 7240 PC Happyness whose name appended in exhibit Pl testified. And all thr¢ugh, there is 1~0 evidence ~part from that of PW2 that,· the victim passed to a police stattion before going to hospital. The authenticity of PF3 is therefore questionable. Four, PV\13 testified to have been ordered by the Appellant to collect a "panga;', a version which PW2 has not stated at all. Five, PW3 immediately after leaving the Ap~ellant with PW2, met vvitb the brothJ of the victim (PW2) but she told her I nothing. PvV3 also testified to have repartee the matter to the father ·of PW2. PW3 I stated as follows clt page 15 of the proceedings:- · \ . "It is me who went to tell the father of Winfrida thac Winfrida have been raped by the accused person. Thereafte~, 1 returned hack lwme" . I The father of VVinfrida whose name, is undisclosed also was not called in I evide·nce. 1t is also left to PW3 on her desire not to inform the brother of PW2 whom she met and rushing to his father to report, \ivho did not testify. . i The above analysis of evidence t~lls the following. One, presence of contradictions and inconsistencies in the prJsecution evidence. Two, that the-re are l I important witnesses not called. These includ:e police investigators, Chairman, father I - of PW2 who also received iiifonnation ~rnd tHose referred ·PW2 to hospital. The gaps j identified above could have been filled by these witnesses. This therefore records flaws in investigation. That being the e:1se, it was not safe to c()nvjct°on the evidenc·e of PW2 and PW3 with unresolved contradictions and inconsistencies. Ms. Maryasinta guided rne that -c::....---::::::::::::::::::=::===----== 4 '. ' they are n,inor 01res. I think we should . . . . . "1l proceed on that obser;ation unless we are · . ( sure that, the trjal Court identified such inconsistencies and contradictions and tried to resolve them. Thi.s duty was stated i!1 the case of Mohamed Said Matula V.R 1995 TLR 3 fn the following version:- \ "Held {i) Where the testimonies by Ltnesses COIJtain inconsistencies and . contradictions, the Court ha)\a duty to address the_ inconsistencies ad t1y to resolve them where possible, else the Court has to decide whether the inconsistencies c.Jnd contradictions are only minor, or .. \ whether they 90 to the root oJ'the matter. As this duty was not done by the t~·ial Magistrate, Section 12 7 (7) of the I Evidence Act. Cap. 6 as quoted above, mal~es mandatory to receive the evidence of a . I child of tender age or victim of sexual offence but when it comes to. conviction on . uncorroborated evidence, the condition is ·such that, upon assessment of the credibility of that witness, there should be satisfaction that there is truth in that evidence. ln my view, circumstances of this case require the evidence of PW2 and PW3 I to be corroborated. The truth cannot be availed in the contradictions of evidence of PW2 on what happened after the rape. Remaining · silent to her grandmother; unconfirmed statement of who referred her to hospital and uncorroborated version that she went to police are matters of highkst important in this appeal. The conduct of PW3 in not informing the immediate perJon s/1e met and the one informed (father . I . oi PW2) not· called in evidence, leaves a lot o!f doubts. · Ali those flaws on the prosecution cat, 1 the most it did, is to create doubt. It is trite law that in criminal !Jw, doubts creat'ed by the prosecution witr~esses would operate_ in favour of the accused. \l\fith such doubts in ·the instant aJJpeal means the prosecution has foiled to prove tlie charge of rJpe ~·1gainst the Appellant. IJtview tbereoC tlie appeal is allowed.. co·nviction 1s thus quashed and sentenc~ . . is hereby set aside. l order release of 'the Appeliant from custody, unless for some other reasons, fawful held. It is so ordered. \ G. J. Mdemu Judge 3/6/2019 Dated at MWANZA this 3 rd ·day of June, 2019. G.J. Mdemu Judge 3/6/2019 10