20190301 TZHC Mwanza

( HIGH COURT OF TANZANIA (DISTRICT REGISTRY) ATMWANZA HC. CRIMINAL APPEAL NO. 179 OF 2018 (Arising from Criminal Case No. 118 of 2017 of the District Court of Magu at Magu} ('•,\, ' •, The appellant William Maningo was arraigned by the District Court of Magu and charged with an offence ·of rape c·ontrary to Section 130 (2) (e) and 131 (1) of the Penal Code Cap 16 Revised Edition 2002. l ( The brief background to this appeal is that it is alleged by the prosecuti_on on 30 th day of August 201 7 around ~0:00 hrs at · Mahaza Village within Magu -District in Mwanza Region, the appellant while at home called the victim one Mariam d/o Mabula aged ten ( 10) years who is his stepdaughter and they were living in the same house. The victim obeyed and followed 0, his step-father. It is alleged further that the appelltl()t entered in "-- ',, the bedroom with the victim and he orclered the',0~~.tJ:'o lie . d own an d he un d resse d h er an d ~er\t~t-,h~'"- -"'·/ th e~uv)·~,---~rns 1n e victims' vagina. ;-·-----..., ~~ \. ('· 's~-::::_~ ) ', "~ -------- ', Aft er the. c~mmio/rf ~h~l~ ~ic'.im went out and she met one B1b1 BudCllgala (.PW2):t1:t,e v1ct1m informed her that \\ (/-~'\ , she was raped. r~~ea~~~-~J:)nformed the victims' mother that her d.atJffBte.ir ~~oi111c>kiihing that she is raped. PW3 (/ \\. >-"" reported th~"'i~!9.~-ot to"-t-he hamlet/ten-cell leader and the . next JD<(omlf19'\~e-Jn~nt was reported to the police station. {(, ~\ ~ Th er\~ter, aj ~F3 was prepared, and the appellant was arreste.~59arged for an offence of rape. The· appellant was then brought before the District Court of Magu where he pleaded not guilty to the charge of rape. Consequently, the appellant was convicted and sentenced as 2 he stands now. Dissatisfied and aggrieved by both conviction and sentence he appealed to this court. In support of the appeal the appellant filed a seven points Petition of Appeal which can be crystallized as follows; one that the trial court erred both in law and fact to G6r.:ivict him relied on caution statement which was wrong~~~\it Tw~ that the trial court convicted him based on n0~r.e"Gi.ib~nce ~{~ ~~ _, of PWl, PW2, and PW3. Thr~e~h~~id~Lto~Wl w~re r~corded contra_ry to the requ1'.e~H\s.,,?!,~t,_\w. Four, the 1s a discrepancy of time when, t~1R11,\en; ocGurred and the date of examination. Five, t~ro~~~se failed to call other witnesses to testify in c(Lrt ..,; ~\,-~oi "0 · person _and Qd ·. ~ .,. for himself while Ms. Flyeregete, lear~~~ A t~.8Y appeared for the Republic. ' Tne 0:r:2~ellant being a loyman did not have much to say he prayed for this court to allow the Republic to start to submit. Ms. Fyeregete opposed the appeal and supported the conviction and sentence. The learned State Attorney opted to combine and argue together number one, two and three of 3 C the grounds of appeal. She qontended that the prosecution . t c~se was proved to the requirled standar_d. She told· the court that PW1 evidence. was credi61e and reliable to establish .the offence as charged. She addJd that. PWl knew the appellant being her step-father and oln the day when the incident occurred her mother was not at home. The appellant called . . ~ her and ordered her to lie on the mattress, an<f ~aped her. Ms. Flyeregete objected that Pw 1, PW2, a~.c,~mily members; thus they have framf d th~ase. S~i~V\12 was a Villager, an~ PWl approach~f/ ~ t h e tree!. She _added that even 1f they were fan:uly\n\.ml:ii~~~best evidence \~ ~,~ comes from the victi~erself'.She'.eferred this court to the cases of Jumanne Sha'b6nMrl~~~ublic Criminal Appecil No. 282 of 2010. T ~ ~ a l . · P W l ~ K ' ~ ~ b y tie testimony of PW2 (Mwamvita M o l \ ~ ~ -d ~3 (the Appellant Wife) who examined her dauci\cler private pbrts and found that she had bloodstains+-ihe evidence tas also corroborated by the . testimony of PW4 Gaston Mzwna (the clinical officer), PWS WP 5982D/C Grace. Therefore the prosecution evidence was . credible and consistency. 4 I I I J ( In further reply to ground four of the appeal, Ms. Flyereget • I strenuously submitted stated that the procedure of conducting voire dire was. complied. She said at ·the time when the victim I · took an oath the law was already amended, the same was reflected in the Miscellaneous ,¼mendment No. 2 of 2016, that I the child is required to- promis~ to tell the truth. Therefore, she 1 prayed for the court to dismiss t his ground of a~al. Concerning ground nuniber ~e Flyeregete valiantly argued th?~he d~pan~es on the date ~~ Ms .. "" and time recorded the PF3 is..q_ot t~~~id\hat the PF3 was "'\.._ is_su~d on 30 th day of A/~ 2qq~cl~ ~ Doctor examined the v1ct1m on the 2nd da~ of .Septe~er 201 7, and the report revealed that the v i ~ with blood stains. · Submitt©egard to Jround three of the appeal, the lear7~e~~alianfly stated that there was no need for <illl~witn~,es ~testify as· long as PWl testified that was \ ) } I enou9~0nly PW l and the appellant were present at the scene of a crime. Therefore 1there was no need to call other children to testify in court. j Finally, Ms. Fleregete subrhitted. that it is in the record that the appellant objected the caution statement and it was overruled that the content o,f the caution statement matched l I 5 the testimonies of witnesses. She submitted that the trial magist_rate was required to conduct an inquir~, but he did not, but even if the cautioned statement are expunged from the . record of the court still there is other evidence to prove that the appellant had committed the said offence. In his brief rejoinder, the appellant i~sled that the prosecution failed to prove the case lDeyond~ ~ b l e · doubt si~ce other witnesse~ were ~ o ~ ~ ~ o u r t . Having carefully cons1dere~grounds\,of appeal and the submission by the learn~'S~~y I am remained with. one central issue /3ete~~t~-and that is none other than whether or not thb(~p~al is meritorious. Let m ~ ~ n t that the evidence of PWl was tak-er-i~~!;(l~ing the requirements of section 127(21 of tf~\ ~ Cap.6 [R.E 2002]. As rightly pointed by the S t a t e ~);hat in 2016 section 127(21 was amended vide Written 6a~S/~iscellaneous Amendment Act No. 2 of 2016 (Amended Act). Currently, a child of tender age may give evidence without taking _an oath or making affirmation provided she/ he promises to tell the truth to the court and not to tell lies. The present offence is alleged to have been committed in 2017 therefore this amendments applies. 6 C Therefore the appellant ground ,has no merit since by virtue of . ' . amendment to the Evidence Adt, ·Cap. 6, through Act No. 4 of 2016, the issue of vo;re dire ~xamination in· admissibility of· I evidence has been abandoned. Consequently, the complainant stated tha·hthere are other witnesses who were not calle? to testify ~n ~~ is in the record that PW3 reported the incident t~teQ__ c_e.11/i2der, . I \~)~."'-'-./ . yet this leader was not called to testify~do not irit~na to waste time on this ground. Suffice to s6v::th€J~1~that there is no P articular number of witnessesJ~q~~"roof of any fact as ~ ~~~ ~ Phukan v State of Assf~t per. section 143 of tho/:vkl'enc~z:)Qsi p .6 [R. E 2002]. In Anil 4-6J it was held as follows: . "A convicti~n 0 ~ 0 on the testimony of single eye witne~-the~~ n1lfi of law or evidence which says to the ~thJfy~'ia sd1e eye witness passed the test of r i ) ~ n g a conviction. on his testimony alone." As"s.~above, the prosecution lined up five witnesses to testify in court and there werJ enough. Therefore, this ground is baseless. The appellant complained that PW 1, PW2 and PW3 were family members therefore thbir evidence was required to be 7 ( I corroborated. I have noted there is no evidence in record that I. PW2_ and PW3 was among the family members, there is· no rule of practice or law which requirks the evid~nce of relatives t.o be discredited. See the decisio~ of Court of Appeal in the case of Mustapha Ramadhani KihiyJ v R [2006] TLR 323 and Juma Choroko v R Criminal Applicati¢n No. 23 of 1995 (unreported). ' Therefore this ground is demerit .j · Addressing the fi_fth groun1 that~re~a~rep~n~y of dates when the cnme was comm~ed~G:lfhen the v1cttm was examined. To address t ~ Q ~\eruse the court records starting from th.e-ch~e sl'l~t commission of crime //-~_. I ~"' v and the day w h e ~ G e~mined. reveals tho ~tcJe~~cu/red on 30th day Of August, 2017, eiir.ilca1, ~~~a:in~d the victim on 2nd day of the 1( ~" Sept{f ber, ~2. '~ ' en 7'\0nd she ~repared a PF3. PW2 did not menti'G)~hed th1 dates but she said it was around 20:00 hrs. I . "'- Dunng "--: t·1On .1n c h"1ef an d w h en he was cross examine exam1na . d .by the appellant, PW3 said shib did not remember the exactly date when the incident occur)ed but it was in September, 2017 I around 19:00 hrs. PWS, Police Officer testified that on 3rd day of I . September he interrogated the appellant. 8 From the records, it is clearly that there is a variance of dates on the occurrence of the incident and between the · date when the alleged incident occurred and the date when the victim was examined. I have found that the date mentioned in charge sheet differs with the evidence given by PW3 and PWS. The witnesses contradicted themselves ,,,-- .. as to "',. \.., when exactly PW 1 was raped and referred to hb~pJtal. ' \,__\.< ~ . . -.. . . . ·, '· According to the particulars of th¢\ off;,e·nc~ '··.of rape \\ '.: :~·: '"·. ..'< . /"·· . <'"<""'"\.., \\ .'\ / ' ./ . ·•. . ·,.,,. _____"•,.,' against the appellant, it shows -!hah~!J._ a\s~ecific date the r ,... " ·. \ ., appellant committed the <~. off~nc~i:-0t>fape' '\. '\ "',_\_ . . . ._ _ . . _,_ ~' '-. , against PW2. However, as pointed out o~'·,th'e'\~pp.ella~t that the facts alli.Jded to by the pro*0~on)Vi~Q~~1:did not prove that on 30th day of Augy~i, JpF t(e<QP,p'eillant committed sucti an offence. Since th.eK~·,.J~""~9:--CC:l~ent proof that the appellant ,,,.--- . " '\ . . raped PWl~\H~tsp~~~~'d;te. PW3 the mother of the victim said she-r.:e..merp·ber 1fw0s rn September, 2107 while the alleged incic{;f~'62c~fuJ);u;1c:\o the charge sheet it occurred on 30 th day \¥~~gu0 ~O 1;_ I am of the opinion that when a particular date ii'•<ri}~TJti6ned in the charge sheet, the prosecution is obliged to prove that the offence was committed by the ace.used by giving cogent evidence and proof to that effect. In this case at hand it was not proved that the crime occurred on 30th day of August, 2017. As it was observed in the case of 9 Jeremie Shemweta v Republic (1985] TLR 228, discrepancies raised reasonable doubts, about the guilty of the·Appellant. I There is no cogent proof tt:1at the appellant raped the ; ' victim on that specific date. A,s it was held· in the case of Mathias S/O Samwel v . R Criminal i Appeal No. 271 of 2009 the · Court of Appeal observed that:- , · ~ 1 " .. .when a specific date, time and pra?:e,.is mentio~fn the charge sheet, the prosec~tion~ obf~~~~That the offence was committed by the ~,e~ & giving cogent evidence and proof to t h e ~ ~ \ ) The confusion· aris&Wn ~~ incident occurred on the 30th day of Augus/,~01~e '1·• 1 day of September, 2017 as per evidence ~ ~ u \ ~ 3 that the crime occurred in September~~incidEmt occurred ~n the 1_51 day ~I September, il-1,7(1'-A'.l~~the charge sheet 1s detective and 1f the ic~~J;_r'E;_d on the 30th day of August, 2017 it means 1 (\ \\ the e y d u c e d by V PW/ is untrue. Additionally, there was also another discrepancy on the dates when PW 1 was examined.· Accordingly to PW3 the victim was examined the next day after the commission of the c·rime I in accordance to the chdrge sheet it means PW 1 was examined on the l st day of S~ptember, 2017. PW4, the clinical Officer testified that she examined the victim on the 2nd day of I j 10 I I I I j ( I September, 2017. But according to the uncertainty of dates I mentioned by PW3 the •incident joccurred in Septer:1ber, 2017 · and the victim was examined -thk next day it might mean that I PWl was examined on 2nd day of September, 2017. 1 I The confusion arises on whether the victim was examined on the 1st day of September, 2017 a day afte~e commission . of the crime; this is according t~ the ch<\lrgl')--sh~~r0'n'ether the victim was examined on 2nd ;day~of th~~~~:io17. If she was examined on the 2nd dd~~t~mb( 2017 it means the charge sheet is defective~~~W~~ that the victim was examined the next dey~ner, th~~mmission of the crime. And if the victim was /x~ned~l;\_e 1st day of 2017 it means . l\ /~" ~ the evidence addt:JceGJ by PW2,GJnd PW3 are untrue. . Finally, ®1'§"VI all ~s wi/h Ms. Flyeregete that the .trial magistr.ate w0s d~und to conduct an inquiry since the a p p f ~ j ~ ~ the cat!Jtioned statement. Failure to conc'J~t an ~uiry must invali1ate the evidence of cautioned statem~_t:la the remedy I for that is to expunge such evidence. As it was held in the 1 case of Robinson Mwanjisi and I . Another v Republic TLR, 2003, at page 18, Tuwamosi v Uganda I . (1967} EA 84, Alfeo Valentine! v R Criminal Appeal No. 92 of 2006, R v Hassan Said (1984) TLR 226 and Wilbard Kilimanjaro v R Criminal Appeal No. 235 o( 2007 (unreported). Furthermore I 11 .. , ( the trial magistra_te was also required to conduct an inquiry to · examine the voluntariness <?f the PF3. The appellant objected the PF3 since PW3 delayed lo report the incident. ·Therefore, I proceed and expunge the cautioned statement and the PF3 from the records of the court. . The court has left with the evidence of th~~m that she was raped. It is settled law that the b\5{'evideri~ /rape 0 comes from the victim. See John Martin @ ~ Republic, (n Criminal Appeal No. 22 of 2008 CAT ~ ~ e f Makumba V. Republic, Criminal Appeal ~ ~ 9 9 9 CAT (both unreported). However, in sjt~0~~e there is variance and discrepcincies noted i ( ~ r,r~din~there Was a need to have corroborate.cl ei~en~~~he cautioned statement and PF3 are e~p~)e:'( YJ record and the variance of dates have~~~ ~bJ on whether the appellant raped the victim.~Y · · 'v D\ lr-l~con51usion therefore., in the instant case, as demon itr~'✓Jherein earlier, the prosecution has failed to prove beyond reasonable doubt that on such a date, time and .place the. appellant committed the offence of rape to PW 1 as charged. Due to the serious deficiency on record, I am constrained to find that no evidence was led to prove that the appellant raped PW 1 on 30th day of August, 2015. 1.2 ( In the event, I accordingly allow the appeal, quash the conviction and set oside a sentence. The -Appellant shoulq be released from prison forthwith unless he is lawful held for some other reasons. It is so ordered. 01.03.2019 13