kiyugu omary vs republic 2021 tzhc 5474 9 august 2021

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO.68 OF 2020 KIYUGU OMARy APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the judgment of the District Court of Shinyanga (Masessa-SRM) Dated the 16th of July, 2020 In Criminal Case No.135 of 2018 JUDGMENT 9th June&9thJuly, 2021 MDEMU,J.: On 16th of July, 2020, the Appellant was convicted for raping a four years old child and sentenced to life imprisonment. According to the charge laid at the door of the Appellant on 6th of August 2018, it was on 22nd on July, 2018 at Matanda area within Shinyanga Municipality when Appellant met an innocent child while on the way to a shop and raped her. She was with her brothers by then when the Appellant asked the victims brothers to look for change money. In their behind undressed, the victim had intercourse with her. On their return, the victim's brothers found mission - __ _- ._ ._._- .. .•.... ... - ------ --- -_ _- -- ._ .._ _- -_ _--- ._----- .. .... .... -- ~-- ..-.. ----.-- accomplished and the victim was given 5000/=Tshs. by the Appellant, hopeful in return for the service offered. The victim and the said two brothers went straight to their mother one Leah Maduhu (PW 1) and told her what happened while naming the Appellant. The victim was checked by Joyce Emmanuel and discovered fluids like sperms thus rushed the victim to police for a PF3(P1)and then to Shinyanga Regional hospital where Dr. Isack Shing'ona John (PW6) examined the victim and found bruises and sperms thus confirmed rape. The Appellant was thus arrested and charged accordingly. As said, the court convicted the Appellant and sentenced him to life imprisonment. He was aggrieved by both conviction and sentence hence this appeal. The Appellant in his fourpages' memorandum of appeal lodged on 21st of August, 2020 presented 9 grounds of appeal which appears to be submissions. They are summarized in the following:one, the victim was not aware as to who raped her. Two, there is contradiction in the prosecution evidence. Three, the trial Magistrate never analyzed the evidence properly. Four, the prosecution relied on weakness of the Appellant's testimony. This appeal was heard on 9th of June, 2021. The Appellant was represented by Mr. Gillagiza Omary, learned Advocate whereas the Respondent Republic had the service of Ms. Salome Mbughuni, learned Senior State Attorney. In support of the appeal, Mr. Gillagiza submitted in the first ground of appeal that, the victim was unable to testify thus the trial court under the premises would have sought the service of community service officers to assist. He added that, by the time services of the community officer got procured, nothing transpired in rendering the assistance as she was just seated. In his opinion therefore, the victim did not possesssufficient intelligence to testify. As to the z= ground of appeal, Mr. Gilagiza submitted that, the evidence of the victim should not be trusted as she did not inform his father (PW3) where she passed first and that the said father never noticed any unusual movement to the victim. He added also that, the distance from his house and where the victim's father was near thus it might not be possible for the victim and her two brothers to report there at 19.00 hours from about 15.00 hours when they left the Appellant's premises. The learned counsel thought the two brothers and the victim passed in other places. With respect to the 3rd ground of appeal, it was his submission that, there is contradiction in the prosecution case that after the victim's mother noted unusual movement to the victim, she called four women who examined the victim and noted such unusual movement. This evidence differs materially with that of JumanneTungu(PW4) whotold first the victim's mother before the four women who never testified in court. Again, the victim's father said to be with one Mama Sele and not the four women. Regarding this contradiction, the learned counsel cited the case of Michael Haishivs.R (1992)TLR 92. Along with what was submitted above, the learned Advocate argued in the 4th ground of appeal that, the trial magistrate was biased by her version that, the accused did not dispute the allegation and also that the said trial magistrate had in mind that, the Appellant had committed that offence because previously he had attempted to commit attempted rape. As to confessions before Village Executive Officer(VEO)complained in the ih ground of appeal, his view was that, the said VEO would have testified if real there was such confessions. He concluded that, according to the record, it appears the father of the victim testified but it is not on record. He also attacked the evidence of family members of the prosecution to be untrusted as they have an interest to serve. It is upon those premises the learned counsel thought the appeal has merits and urged me to allow the same. In reply, Ms. Salome Mbughuni supported the appeal. she also faulted the appeal that, what is termed as grounds of appeal in the memorandum of appeal in not grounds of appeal but submissions. She however opted to argue on one point only, that is the prosecution case was not proved beyond reasonable doubt. She observed that, as PW2, (the victim) was four years old, her evidence was to be received in compliance with the provisions of section 127(2) of the Evidence Act, Cap.6. She referred at page 14 of the proceedings where it is the trial Senior Resident Magistrate who recorded that, the witness promised to tell the truth but it was not the version of the victim. She also commented on the evidence of PW4 at page 22 of the proceedings on what appeared to her a voire dire test. To the learned Senior State Attorney, the witness was to promise to tell the truth and not to tell lies. She thus concluded in this point by citing the case of Godfrey Wilson vs R, Criminal Appeal No.168 of 2018(unreported) insisting that, the evidence of PW2 and that of PW4 violated the provisions of section 127(2) of Cap. 6 She also cited the case of Masanja Makungu vs R. Criminal Appeal No. 378 of 2018(unreported) where the court expunged the evidence of a witness of tender age who testified without making a promise to tell the truth and not to tell lies. She submitted further that upon expunging the evidence of PW2 and PW4, there remains the evidence of parents, that is PW1 and PW3 who were not present when the offence got committed. She also commented on the evidence of PWS, (a nurse) and PW6 (a doctor) whose evidence may not prove who actually raped except the victim himself as was observed in the case of SelemanMakumba vs.R.(2006) TLR 379.It is upon that understanding the learned Senior State Attorney did support the appeal. In this appeal, according to the prosecution evidence. it is not disputed that the victim was raped. What comes to question is who raped the victim? As submitted by the learned Senior State Attorney, crux of the matter hinges along one question, that is, whether the prosecution proved their case beyond reasonable doubt. In this, I tend to underscore the position stated by Ms. Salome Mbughuni when cited the case of Seleman Makumba vs. R. (supra) that, this being a sexual offence, the best ------ evidence is that of the victim. The learned trial Senior Resident Magistrate remarked on this point in her judgment. Now is to say, do we have such evidence? In the record, that evidence features from page 14 through page 16. The witness is of four years of age. As submitted, her evidence has to be received in compliance with the provisions of section 127 (2) of the EvidenceAct Cap.6 which reads: 127(2) A child of tender age may give evidence without taking an oath or making affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell lies.(emphasis added) As stated inGodfrey Wilson vs R.(supra) in the above cited provisions, there are two underlying conditions. One, the child of tender age is allowed to give evidence without oath or affirmation and two, before testifying, there is a mandatory requirement for the said child to promise to tell the truth and not to tell lies. - Was the evidence of PW2 recorded in harmony with the above provisions of the law? At page 14 of the proceedings, before the evidence was recorded, the following is recorded: Ms. Shani-State Attorney: The second witness is a child who is a victim. She is four years old The social welfare Ms. Malia is also present too. Court: the witness is a child of 4 years old, I have interviewed her and she understood the meaning of speaking the truth. In this procedure, the following are noted: one, the witness is not known. Whether or the leaned trial Senior Resident Magistrate properly got the procedure, she would have identified the witness first. Two, the procedure tempted to be applied is a voire dirctest which isn't the procedure required. Three, the witness was not interviewed. Four, what the Senior Resident Magistrate recorded is her own version.ln it therefore, it is obvious that, the laid down mandatory legal requirement has not been followed. The outcome on such noncompliance was stated in Godfrey Wilson vs R.(supra), at page 14 of the judgment that: In this case, since PW1 gave evidence without making prior promise of telling the truth and not lies, there is no gainsaying that the required procedure was not complied with before taking the evidence of the victim. In the absence of promise by PW1, we think that her evidence was not properly admitted in terms of section 127(2) of the Evidence Act as amended by Act No.4 of 2016. Hence the same has no evidential value. This being the case, the evidence of PW2 in the instant appeal has no evidential value as has not met the test of the best evidence in sexual offence stated in Seleman Makumba vs. R (supra) thus is accordingly expunged. Having expunged that evidence, there is no any other evidence on record to sustain conviction. The evidence of PW3 who was together with PW2 was also taken in violation of section 127 (2) of the Evidence Act because PW3 was a witness of tender age. I think this ground alone disposes the whole appeal. in the final result, the appeal is thus allowed. Conviction and sentence of the trial court is quashed and set aside. The Appellant be released from custody, unless lawfully held for some other causes. --- It is so ordered. 10