amos zacharia vs republic 2020 tzhc 4321 11 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA DISTRICT REGISTRY AT TABORA w • DC. CRIMINAL CASE NO. 135 OF 2019 (Originating from Urambo District Court Criminal Case No. 64 of 2019) AMOS S/O ZACHARIA.................................... APPELLANT VERSUS REPUBLIC......................................................... RESPONDENT JUDGMENT 07/10 & 11/12/2020 BAHATI, J.: The appellant AMOS S/O ZACHARIA appealed before this Court contesting the decision of the District Court of Tabora at Tabora in Criminal Case no. 135 of 2019 where he was charged and convicted for the offence of Rape contrary to Section 130 (1) (2) (e) & 131 (1) of the Penal Code Cap 16 [R.E. 2019] and sentenced to serve a custodial sentence of thirty (30) years in jail. At this stage, I find it apt to narrate a brief factual background to the present application. It is PW1, Jane William the mother of the victim told this court that on 3 February, 2019, that Amos Zacharia, the accused used to visit her home as before was a house boy, so they knew each other, the accused lived at Ushokora. It was a day time, she i borrowed a bicycle from the accused Amos and went to the shop leaving the victim who is 6 years with the accused. On her way back she heard Matilda Joseph crying at the burn, she went there and found Amos, the accused raping the victim. PW1 added that Amos was sleeping over Matilda's body while his trouser was undressed up to his knees and Matilda had no underpants. When he saw PW1, he woke up and dressed, the victim was crying bleeding into her vagina and anus. PW1 cried for help when the Chairman who was nearby came and they found the accused and asked why he has done that and he answered "Shetani alinipitia". Therefore they took Amos to the Police Station. PW2, the Chairman as a leader of that area who also testified that he checked the victim who was bleeding. PW3, the victim also stated that she knew the accused who used to see him at their home. She stated that in her mother's absence, the accused took her to the burn, undressed her underpants, and pressed his penis into her vagina and anus. She felt pain and started bleeding until her mother came back and found him, she was taken to the hospital where PW6, Kasim Aziz, the clinical officer on duty examined her vagina and anus and found that her underpants had clotted bloodstains, had pains when touched, her labia minora was red, her virgin destroyed and her anus was penetrated by a blunt object. He filled the form and handed it to the person who brought it. 2 When the accused was called upon to answer the charge read against him he denied the charge stating that he was owing Joseph Alphonce and they agreed into writing to the village office of Ushokola where he was paid half of the debt and the remained TZS 300,000/= was not paid. When he made follow-up of the remaining sum he met with him on the way and he told the accused to go and take the money at home, but when he arrived at Alphonce's place, his wife took DWl'sbicycle and left with it, when she came back she claimed that DW1 raped her daughter. In a bid to prove its case the prosecution summoned six witnesses and consequently, the trial court found him guilty of the offence and sentenced him to serve 30 years in prison. Aggrieved with the decision of the trial court and the appellant appealed to this court that; 1. The case for the prosecution against the appellant was not proved beyond reasonable doubt. 2. The learned trial magistrate erred in law and fact for convicting and sentencing the appellant without considering, evaluating, and taking into account the defence evidence of the appellant and accord the same any weight. See HUSSEIN IDD AND ANOTHER l/S REPUBLIC [1986] TLR 283. 3 3. The PF3 (exhibit Pl) was wrongly admitted and relied upon by the trial court to ground conviction since the same was not read aloud in court in the hearing of the appellant, hence, liable to be expunged See Robinson Mwanjisi & Others VS. Republic [2003] TLR 218. 4. PW2 (the victim) being a child of tender age did not promise to tell the truth as required by Section 127 (2) of the Evidence Act, Cap. 6 as amended by the written Law (Misc. Amendment) Act, No. 3- 6 of 2016. 5. The appellant was not accorded a fair trial since the trial court did not put the substance of the charge and record his plea after the preliminary hearing, and before starting to receive the evidence for the prosecution, this renders the trial a nullity. See Naoche Ole Mbile vs. Republic [1993] TLR 253. At the hearing of the appeal which was conducted through video conferencing, the appellant appeared in person, unrepresented while the respondent was represented by the learned State Attorney, Mr. Rwegira Deusdedit. The appellant could barely speak and preferred to rely on his appeal to form part of the submission. 4 Initially, the learned State Attorney expressed the stance that the respondent was supporting the appellants conviction. In the course of submitting he stated that the appellant was convicted for two offences of unnatural and rape. He further averred that there is sufficient evidence showing that the accused raped the victim. The evidence of PW1 on pages 7-8 of the proceedings is direct. PW1, the mother of the victim found the accused raping her daughter and when she asked him why he did that he told her that it was a satan, hence PW1 evidence is reliable. He further averred that PW3 as the victim, on page 11 of the record she complied with the law as she promised to say only the truth.PW3, the victim explained clearly to the court how she was raped by DW1 that in her absence of her mother, he took her to the burn and undressed her underpants, and pressed his penis into her vagina and anus. This evidence also is corroborated by the vicinity chairman who arrived at the scene and when inspected, she found her bleeding, and when asked the accused he begged for forgiveness saying it was a satan. The counsel for the respondent further averred that the appellant in his defence, stated that he owed the family of the victim's mother 5 TZS 300,000/=. Although, in his cross-examination, he did not state that hence this was an afterthought. The counsel for the respondent further submitted that the PF3 tendered in court by PW6, Clinical Officer confirmed that there was penetration by force of the abnormal object. Therefore he submitted that there is sufficient evidence that the accused committed the offence according to the evidence of the PW5. Hence he prayed to this court to dismiss the appeal. Having heard the submissions of both sides, in the course of determining these grounds, I will be guided by the canon of the criminal cases that the onus of proof in criminal cases lies with the prosecution to prove that the defendant committed the offence for which he is charged with. In this case at hand, the issue is whether the prosecution case was proved beyond reasonable doubt. The appellant was charged, convicted, and sentenced to serve 30 years and imprisonment over the charge of rape and unnatural offence contrary to section 130 (2(b)and 131(1) of the Penal Code, Cap.16. To begin with the first ground of appeal that, the case for the prosecution against the appellant was not proved beyond reasonable doubt. 6 In the present case, the trial court carefully analyzed and considered the evidence of PW1 who identified the accused person and found the accused person raping the victim and that the appellant himself admitted this fact after being arrested that it was satan. Further, the victim identified the rapist. On my re-assessment of the evidence on record, there can be no doubt that PW3 was a very truthful witness, and also this evidence was corroborated by PW1 and PW2. I respectfully agree with the learned State Attorney that evidence, in this case, met the required test. It is also trite law in the case of Ndikumana Philipo Vs.Republic, Criminal Appeal No. 276 of 2009 (Unreported) where this court stated that; "True evidence of rape has to come from the victim, if an adult, that there were penetration and no consent and in case of any other women where consent is irrelevant that there was penetration." The victim and PW1 were credible witnesses in this case. I, therefore, find this ground has no merit. On the second ground of appeal, the trial magistrate did not consider the evidence of the defence. I am aware of the Court of Appeal decisions but this court being the first appellate court, I have evaluated and considered the defence side and have found that the 7 appellant in his defence, admitted to having gone to Joseph Alphonce's place and he admitted having borrowed the wife of Alphonce a bicycle while he was waiting for Joseph Alphonse when his wife left for shopping and when she returned at home she claimed that he has raped her daughter. As shown in his defence, he has stated categorically that he went to the house of Alphonse and he was found at the scene of the crime. In these circumstances, the appellant was correctly convicted as there was other evidence linking him with the offence. Therefore, this court being the first appellate court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to critical scrutiny and if warranted arrive at its conclusions of fact. I have considered the evidence of the defence and found that it is true that the trial court correctly found the appellant guilty as can be discerned from the records this evidence can not outweigh the evidence of the prosecution side. "In my mother's absence, he took me to the burn and undress my underpants and pressed his penis into my vagina and anus. I felt painful, I started bleeding. The person who pressed his penis into my vagina and anus is Amos standing in court." Based on the foregoing, I find the ground has no merit. 8 As to the third ground of appeal that the PF3 (exhibit Pl) was wrongly admitted and relied upon by the trial court to ground conviction since the same was not read aloud in court in the hearing of the appellant, hence, liable to be expunged See Robinson Mwanjisi & Others VS. Republic [2003] TLR 218. The court has noted that the omission by the trial court and hence the PF3 exhibit is expunged from the record. On the fourth ground of appeal with PW2 (the victim) that being a child of tender age did not promise to tell the truth as required by Section 127 (2) of the Evidence Act Cap 6 as amended by the Written Laws (Misc. Amendment) Act No. 3 of 2016. Section 127(2) provides that, "Where in any criminal cause or matter a child of tender age called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be received though not given upon oath or affirmation, if in the opinion of the court, which opinion shall be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence, and understands the duty of speaking the truth". As noted from the record the Magistrate pointed out that PW3 as the victim, of 6 years, does not know the meaning of oath but promises to say the truth. I find the trial magistrate to have complied with the 9 law as the victim promised to say only the truth.PW3, the victim explained clearly to the court. Hence the learned trial magistrate complied with section 127(2) of the Evidence Act Cap.6. In the fifth ground of appeal, the appellant was not accorded a fair trial since the trial court did not put the substance of the charge and record his plea after the preliminary hearing and before starting to receive the evidence for the prosecution, this renders the trial a nullity in Naoche Ole Mbile VS. Republic [1993] TLR 253. From the record, I have noted that the trial court did put the substance of the charge as the PP submitted. The prayer which was granted, the charge was amended, read over, and explained to the accused person who was asked to plead thereto. Hence I find the appellant was accorded a fair trial. This ground lacks merit. For the foregoing reasons, the appeal must fail. In the event, the same is hereby dismissed for want of merit. Order accordingly. \r, . A.A.BAHATI JUDGE 11/12/2020 io Judgment delivered under my hand and seal of the court in th chamber, this 11 day December, 2020 in the presence of the appellant only. A. A. BAHATI JUDGE 11/12/2020 Right of appeal explained. A. A. BAHATI JUDGE 11/12/2020 11