gervas luvyakule 2020 tzhc 4201 10 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA APPELLATE JURISDICTION (DC) CRIMINAL APPEAL NO. 43 OF 2020 (Original Criminal Case No. 153 of 2020 of the District Court of Kasulu at Kasulu before Hon. C.A. Mushi - RM) GERVAS S/O LUVYAKULE.............................................. APPELLANT VERSUS REPUBLIC RESPONDENT JUDGMENT 23/11/2020 & 10/12/2020 I.C. MUGETA, J. On 29/06/2020, a charge of rape c/s 130 (1) (2) (e) and 131 (1) of the Penal Code was laid at the doors of the appellant on allegation that on 22/6/2020 he had carnal knowledge of a girl of 13 years whom I shall, hereinafter, refer to as 'the victim'. The incident took place at Nyamnyusi Village, Kasulu District. According to the evidence, the victim is of unsound mind. She testified as PW1 and before she gave her evidence, the trial court, after posing some questions to her, made the following finding 1 | Pa ge 'as PW3 seems to be not mentally fit to the extent that, she cannot even speak to this court and promised whether she will tell the truth or not her evidence will be taken without oath'. Her unsworn evidence is in one sentence. It reads:- 'Yes, I know the accused person who is here, alinibaka, aiiniingiiia' The accused person did not cross examine her. After a trial involving four other witnesses, the appellant was convicted. The mandatory minimum sentence of thirty years was imposed on him. He is protesting his innocence on the following grounds of appeal (1) That, the trial Court Magistrate erred In law and fact by convicting and sentence the appellant basing on evidence provided by the PW1 who is mental incapability (sic). (2) That, the trial Court erred in law and fact in convicting and sentencing the appellant without considering that no identification parade, paraded (sic) to identifies the accused to leave no doubt that the alleged accused is the one who committed the alleged offence rather than relied on dock identification. 2 | Page (3) That the trial Court erred and fact (sic) in disregarding the appellant defense case and failure to consider the principle that the accused cannot be convicted basis (sic) on weakness of his/her defense but on strength of the prosecution evidence adduced and proved against the appellant. (4) That the trial court erred in law and fact by con victing and sentence (sic) the appellant while the essential ingredients of rape were not sufficiently established and proved beyond reasonable doubt as required by the law. During hearing, the appellant was unrepresented. He said he has nothing to add on the grounds of appeal. Clement Masua, learned State Attorney appeared for the respondent. He submitted on the grounds of appeal one after the other. I shall deal with his arguments in opposition of the appeal and determine them in the order as presented. Before, I delve into that, here is a summary of the facts of the case. On 22/6/2020 at 19.30 hours Asia Yohana (PW1) was going home from her farm. Along the ways she met the appellant naked coming from the bush accompanied by the victim. She summoned Julieth Kiraranganya (PW2) who is the victim's mother. On arrival at the scene, PW2 found a lot of people having gathered. Thereat, were the appellant who was naked and the victim 3 | P age who had no underpants or a blouse. The appellant and the victim were taken to the village office and on 23/6/2020, the appellant was taken to the Police Station where he recorded a caution statement before WP.6913 DC Grace on 25/6/2020 and he admitted to have raped the victim. On 23/06/2020 medical examination was conducted on the victim by Festo Msasa (PW4) who is a clinical officer. Spermatozoa were found in the victim's vagina. In his defence the appellant alleged, without giving reasons, that the case against him was a frame up. Back to the parties' submissions. I shall determine this appeal on one major complaint which is whether the charge was proved beyond reasonable doubts. The grounds of appeal shall be subsets upon which the major complaint shall be tested. In opposing the appeal, Mr. Masua submitted, starting with the first ground, that despite the victim being mentally unstable, the conviction was not grounded on her testimony alone. He conceded that under section 127 (1) of the Evidence Act, a mentally unstable witness in an incompetent witness. However, the learned State Attorney argued, the evidence of PW1 who found the appellant naked, the evidence of the clinical officer that he found spermatozoa in the victim's vagina which was tendered in form of a PF3 as 4 | Page exhibit Pl and the caution statement of the appellant where he confessed raping the victim which was tendered by PW5 as exhibit P2, all support the charge that the appellant raped the victim. On the complaint in the second ground, Mr. Masua submitted that no identification parade was needed where the appellant was arrested at the crime scene. Regarding the third complaint that the defence was not considered and the conviction was based on weakness of the defence, the learned State Attorney argued that the trial court considered the evidence as a whole before it reached its conclusion. On penetration, which is a complaint in the fourth ground, he submitted that the PF3 proves there were tear on the vagina and spermatozoa which is evidence of penetration. I start with examining the legality of the confession. According to the mother of the victim, the appellant was taken into police custody on 23/6/2020. According to exhibit P2, it was recorded on 25/6/2020 at 08.15 hours. These are two days after the appellant was held in custody. It follows, therefore, that the confession was recorded in violation of section 50 (1) (a) of the CPA. Since no explanation of the delay was offered, the evidence was illegally obtained and, I hereby, expunge it from record. 5 | P a ge Next is the evidence of the victim (PW3) which covers the complaint in the first ground. She has two unique qualities which are being a minor and being of unsound mind. In recording her evidence, per the finding above, the learned trial magistrate considered her minority factor only in terms of section 127 (2) of the Evidence Act. That is why her evidence was recorded without oath or affirmation. However, the learned trial magistrate having found that the victim was unable to follow questions put to her as reflected at page 10 of the proceedings, she ought to have considered the relevance of section 127 (1) of the Evidence Act [Cap. 6 R.E. 2019]. Section 127 (1) reads:- Every person shall be competed to testify unless the court considers that he is incapable of understanding the questions put to him or giving rational answers to those questions by reasons of tender age, extreme old age, disease (whether of body or mind) or any other similar cause'. It follows, therefore, that in terms of section 127 (1) and (6) of the Evidence Act, her mental disability condition prevented her from understanding the questions put to her and giving rational answers. Consequently, she was 6 | Page incompetent witness and in view of that finding she was not supposed to give any evidence for being incompetent witness. In that regard, I hereby expunge her evidence from record too. The complaint has merits but as submitted by the learned State Attorney, the trial court's decision is not founded on the evidence of the victim only. On the complaint about penetration, I have no doubt that the medical evidence in exhibit Pl proves penetration on account of the spermatozoa in the vagina. However, without evidence of the victim and the caution statement of the appellant the question that ought to be answered is whether it is the appellant who ejaculated into that vagina. The relevant evidence is that of PW1 and EW2. Indeed, PW1 and PW2 testified that the appellant and the victim were naked at the scene of crime. This evidence is circumstantial as far as penetration is concerned since no witness found or saw them in the sexual act. It is my view that the fact that the appellant was naked brings a strong suspicion on the possibility that he was from a sexual act with the victim. But the law is settled that mere suspicion, however strong, cannot ground a conviction. The fact that PW4 found spermatozoa in the victim's vagina does not guarantee that the same belongs to the appellant where there is no further scientific examination of 7 I Pa ge the spermatozoa to prove their origin. It is upon the prosecution to prove the case beyond reasonable doubts. In this case there is a reasonable doubt on whether the spermatozoa belongs to the appellant. Further it is on the trial court record that after the appellant entered his defence as DW1, the trial magistrate put questions to him where he answered:- I was drunkard. Ulevi umesababisha mambo niliyofanya. I raped her because I was drunkard'. I have asked myself if questions posed by the learned magistrate were meant to seek clarification or to procure admission and impeach credibility of the witness. Questions allowable to be asked by a judge or magistrate are those for seeking clarification on issues introduced in evidence by the opposing parties. It is not a duty of the judge or magistrate to ask questions that tend to support the case of one party or impeach the credibility of any witness. Doing so removes the judge or magistrate from being an impartial umpire. Therefore, all questions by the court must have basis in the evidence tendered by the parties. 8 | Pa ge I have reviewed the evidence on record and found that issues of drunkardness or rape being induced by the state of intoxication are found in the caution statement. Since I have expunged it from the record, questions founded on it lack the supporting foundation, hence, becomes of no probative value too. I expunge that part of evidence from record. On the identification parade, as submitted by the learned State Attorney, there was no need of conducting one considering the state of mind of the victim. The complaint has no merits. The same applies to the complaint about not considering the defence case. There is no defence on record which would have raised a reasonable doubt in the prosecution case if the prosecution evidence was properly collected, recorded and tendered. This notwithstanding, for reasons herein above demonstrated, the prosecution did not prove the offence of rape to the required standard. In the end, I find that the ^ase was not proved beyond reasonable doubts. The appeal is allowed as penetration by the appellant was not proved. Os 9 | P age 10/12/2020 Court: Judgment delivered in chambers in the presence of the appellant in person and Clement Masua, State Attorney, for the Republic. Sgd: I.C. Mugeta Judge 10/12/2020 10 | P a g e