amani chilemile vs republic 2022 tzhc 11365 29 july 2022

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF DODOMA AT DODOMA DC. CRIMINAL APPEAL NO. 126 OF 2021 AMANI CHILEMILE.......................................................... APPEALANT VERSUS THE REPUBLIC............................................................ RESPONDENT (Arising from the Judgment of Kongwa District Court- K.J.Mwanemile, SRM) Dated 30th November, 2021 In Criminal Case No. 53 of 2021 JUDGMENT 16thJune&29 July,2022 MDEMU, J:. In the District Court of Kongwa, the Appellant Amani Chilemile was arraigned for one count of grave sexual abuse contrary to section 138 C (1) (a) (2) (b) of the Penal Code, Cap. 16. The allegation was that, on 06th day of May, 2021 at about 1030 hours, at Morisheri street within Kongwa District, for sexual gratification, the Appellant did commit grave sexual abuse to one "SM" (disguised for identity purposes), a child of six (6) years old. i According to the evidence, on the fateful day, the victim (PW1) went to the Appellant's tuition centre for tuition purposes. She was however told to go back home to take tuition fees. PW1 obeyed thus returned back with the tuition fees. After she had completed the said tuition, and as there was no one save for the Appellant, the latter then put off PWl's under pants and inserted his fingers in her private parts and released her for home. At home, PW1 told her mother what the Appellant did to her. She was thus taken to police for a PF3 then proceeded to Kongwa hospital where, upon examination by PW3, some bruises were noted in PWl's private parts. With this evidence, the trial court was satisfied that the charge of grave sexual abuse was proved beyond reasonable doubt. Accordingly, the Appellant was convicted and sentenced to serve twenty (20) years prison term plus a compensation of Tshs. 100,000/= to the victim. Aggrieved by both conviction and sentence, this appeal on the following grounds was filed by the Appellant: - 1. That, the trial Magistrate erred in law and fact to convict the Appellant white knowing that prosecution side failed to prove their case beyond reasonable doubts. 2 2. That, the trial Magistrate erred in law and fact by convicting the Appellant basing on unreliable and contradicting evidence. 3. That, the trial Magistrate erred in law by imposing upon the Appellant excessive sentence without taking into consideration the weight of the offence committed. 4. That, the whole proceedings marred by procedural irregularities which led to unwanted judgment and order of the Court which also not proper. At the hearing of appeal, the Appellant was represented by Mr. John Kidando, learned Advocate. The Respondent Republic was represented by Ms. Bertha Kulwa, learned State Attorney. On 18th of May, 2022, it was agreed the appeal be disposed by way of written submissions. Parties complied. Mr. Kidando, in his written submissions filed on 30th of May, 2022 abandoned the third ground of appeal. In the first ground of appeal, he submitted that, the prosecution failed to prove their case beyond reasonable doubt. To him, PW1 lied in Court to have been examined by PW2 in her 3 private parts and ordered to bath and went back to school. However, later she said, they went straight to police station. Mr. Kidando submitted further that, in the evidence of PWI, the Appellant inserted his fingers in her private parts several times but in those several times, she didn't report to her mother. PWI also when asked by PW3, didn't mention a person who inserted fingers on her private parts. On this, He cited the case of Mohamed Said vs. Republic, Criminal Appeal, No. 145 of 2017 (unreported) that, PWI lied thus should not be trusted. Banking on the cited case of Mohamed Said vs. Republic (supra), Mr. Kidando insisted that, PWl's evidence under the premises require corroboration. Regarding the second ground of appeal, it was his submissions that, the prosecution evidence was contradictory. First, PWI said, at the tuition centre she was with the Appellant only but when cross examined, she said, other pupils were present at the centre. It was his argument that, when the prosecution evidence is contradictory, such evidence should be expunged from the record. He cited the case of Sylivester Stephano vs. R, Criminal Appeal No. 527 of 2016 (unreported). On the fourth ground of appeal, it was his submissions that, the proceedings are tainted with irregularities. To begin with, PWl's evidence was taken contrary to the provisions of section 127(2) of the Evidence Act, Cap. 6 which require a child of tender age to promise to tell the truth and not lies. On this, he cited the case of Mwalimu Jumanne vs. The Republic, Criminal Appeal, No. 18 of 2019 and that of Abdallah Nguchika vs. The Republic, Criminal Appeal No. 182 of 2018 (both unreported) that, PWl's evidence has no evidential value. The other irregularity he pointed out is that, the defence evidence was not considered by the trial Court. He said, this is fatal and vitiates conviction as was in the case of Fred John vs. The Republic, Criminal Appeal No. 17 of 2018 (unreported). In reply, Ms. Bertha Kulwa submitted among other things that, the trial Court didn't comply with the provisions of Section 127(2) of the Evidence Act, Cap. 6 because PW1 did not to promise to tell the truth and not to tell lies. She referred at page 11 of the trial Court's proceedings where the Court failed to comply with such a mandatory requirement. She thought the resultant renders the evidence of PW1 to have no evidential value, thus has to be expunged from the record. She added that, having PWl's evidence expunged, the case remains toothless to warrant Appellant's conviction. Under the circumstances, it was her submissions that, such noncompliance to section 127(2) of Evidence Act is curable under section 388 of Criminal Procedure Act, Cap. 20 by having retrial, which she prayed. Replying on non-consideration of the defence evidence, the learned State Attorney submitted that, this Court is mandated to rectify the irregularity. She thought a retrial therefore under the circumstances of this case is better placed for justice to be done to the victim and the Appellant. Re-joining on the retrial proposed by the learned State Attorney, Mr. Kidando stated that, retrial will afford the prosecution an opportunity to fill in gaps in their evidence which is not a spirit of the principles governing re trials. On this, she cited the case of Fataheli Manji v. Republic [1966] E.A. 341. In the record and after having heard from the parties, it is not disputed that the Appellant herein was a teacher and the victim was a pupil. On the fateful day, PW1 went to the tuition centre for tuition purposes but the Appellant returned her home to collect tuition fee. As per PW1, PW2 and the Appellant, PW1 went back home, collected tuition fee and returned to the tuition centre. Here is where rival arguments began between the prosecution and the Appellant. The question is therefore whether, on her 6 return (PW1), for sexual gratification, the Appellant inserted his fingers into PWl's private parts. The evidence on record have to clear these rival arguments. This being a sexual offence, it is trite law that the best evidence is that of the victim which, in this case, is the evidence of PW1. See Selemani Makumba vs. Republic [2006] T.L.R.379 Is the evidence of PW1 the best evidence? The learned trial Magistrate, in her judgment, trusted that evidence on what she called to have satisfied that PW1, being a witness of tender age, promised to tell the truth and not to tell lies before she testified. In their submissions, both Mr. Kidando and Ms. Bertha Kulwa observed that, the learned trial Magistrate was in total violation of the procedure stipulated under section 127(2) of the Evidence Act, Cap. 6. In fact, this is what forms the contents of the fourth ground of appeal on the procedural irregularities. It is clear in the section that: "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 any lies." 7 To witness this compliance, let the record speak of itself as at page 11 and 12 of the trial Court proceedings: PROSECUTION CASE OPEN PW1: Siveta Matovoia,6 yrs -Magharibi B - I am standard two - At Konga Primary School - I am third born - I am Nyamwezi by tribe - lam a Christian - I was of 99 position in class examination - I am used to go the church where I brought to be in good behaviour - once a person speak lies is going to hell or fire - I am speaking the truth Court: This court after certified that the child knows the important of speaking truth therefore, she qualify to give evidence in court. Signed K.J.MWANEMILE-SRM 14/9/2021 Did the learned trial Magistrate correctly deployed the methodology towards her satisfaction that the child offender age promised to tell the truth and not to tell lies? In other words, looking at what the trial magistrate recorded, did PW1 made the promise? In the case of Godfrey Wilson v. R, 8 Criminal Appeal No. 168 of 2016 (unreported), the Court of Appeal prescribed the following guidance on how to reach at the stage for the child of tender age to make the promise: ".....the trial Court or Judge can ask a witness of a tender age such simplified questions, which may not be exhaustive depending on the circumstances of the case as follows: 1. The age of the child. 2. The religion which the child professes and whether he/she understands the nature of oath. 3. Whether or not the child promises to tell the truth and not to tell lies. Thereafter upon making the promise, such promise must be recorded before the evidence is taken. What is gathered from the above extract is that, PW1 was answering questions regarding her profile and whether he knows the duty of speaking the truth. It appears the learned trial Resident Magistrate, though did not come out clearly, was deploying procedures akin to vore diretest. Assuming she was securing the promise, questions asked however have not been recorded leave alone failure to record the promise itself. It was not therefore 9 justified for the trial Court, under the premises, to have a satisfaction that, the child knows the importance of speaking the truth, on assumption that she made a promise. In principle, there was no promise made. I therefore agree with the two leaned counsels that PW1, being a child of tender age, had her evidence received without making prior promise to tell the truth and not to tell lies. This evidence is not therefore the best evidence in the meaning of Selemani Makumba vs. Republic (supra). As guided by the two counsels, and also as observed in Godfrey Wilson vs. R (supra), the evidence of PW1 is thus expunged from the record. Now, since the crucial evidence of PW1 has been expunged, the issue is whether the remaining evidence may sustain conviction against the Appellant. In the case of Makenji Kamura v. Republic, Criminal Appeal No. 30 of 2018 (unreported), it was held among other things that, when the victim's evidence is expunged, the available evidence can be used to convict the accused. Therefore, with due respect to the learned State Attorney, noncompliance of procedures in receiving evidence of a child of tender age stipulated under section 127 (2) of the Evidence Act, do not attract retrial. As submitted by Mr. Kidando in his written rejoinder, which I io entirely agree, principles on retrial stated in the case of Fataheli Manji vs. Republic [1966] E.A. 341 makes this case unfit for a retrial. Is there any other evidence besides the expunged evidence of PW1? According to the record, the learned trial Magistrate also deployed the evidence of PW2, the mother of the victim of sexual offence. This witness was informed by PW1 whose evidence was expunged that, the Appellant inserted his fingers in her private parts. Of course, PW3 who examined the victim (Pl) noted bruises and swelling in PWl's private part. Who did it? We are left with the evidence of PW2 alone. As said before, PW2's evidence purely rests on the version of PW1. Much as that evidence has been expunged, there is nowhere in the Evidence of PW1 she dared to mention the date the offence committed as stated in the charge. It thus remains doubtful if the offence was committed on the date the Appellant asked her to collect tuition fees or on other dates which, according to PW2, PW1 did not report other incidences. At page 15 of the proceedings, PW2 stated that: Apart from that day, I asked my child if Mwalimu Amani did that other time she replied to me that he did same previously but she did not remember when..(emphasis supplied) li This evidence contradicts that of PW3 who did not state if there were signs that it was not the first time PWl's private parts to be defiled. In fact, PW2 prevented PW3 for further examination. At page 18, the evidence of PW3 partly reads: ....but ones we talked with the child a victim, we removed some people who were there the victim toid us that she was inserted finger on her private part (vagina) she did not name who did the same. Thereafter I called my co­ doctor and we suggested to get a bed for further medication but her parent beg them to go back home with a child, (emphasis supplied) This further examination by PW3 would have established if it was for the first time PWl's private parts got defiled and also would have at least corroborated the evidence of PW2 to whom the victim named the Appellant. I am saying so because, according to PW3, the Appellant was not named by the victim(PWl). The other irregularity pointed out was that the trial Court didn't consider the defence evidence. Having revisited the judgment of the trial court, it is evident that, the trial court did not consider the defence evidence *3____________ in its judgment. It is obvious that, the trial Magistrate dealt with the prosecution evidence on its own and arrived at the conclusion that, it was true and credible. Did not at all throw her eyes at the defence evidence. Regarding this role, the Court of Appeal in Hussein Idd and Another vs. Republic [1986] T.L.R. 166, held thus: - "It seems dear to us that the Judge dealt with the prosecution evidence on its own and arrived at the conclusion that, it was true and credible and as a result he rejected the alibi put forward as deliberate He. In our view, this is a serious misdirection. Thejudge shouidhave dealt with the prosecution and defence evidence and after analyzing such evidence, the Judge should then reach a conclusion. Here accused was deprived of having his defence properly considered by the Judge. In the circumstances we think it unsafe to let the conviction of the accused stand." The trial Magistrate believed that evidence of PW1, PW2 and PW3 to be reliable in convicting the Appellant. There is no doubt that, the trial Magistrate was more focused on the prosecution evidence leaving away the defense evidence. Non consideration of defence evidence is fatal and it 13 vitiates the conviction. See the case of Adamson Mwaitembo vs. Republic, Criminal Appeal No. 28 of 2015 and Daniel Severine and two Others vs. R, Criminal Appeal No. 431 of 2018 (both unreported). Having expunged the evidence of PWI, and given weaknesses in the remaining prosecution evidence of PW2 and PW3 and for the foregoing irregularities on non-consideration of the Appellant's evidence, I find merits in the appeal and is accordingly allowed. The conviction and twenty (20) years' prison term sentence met by the trial court is thus quashed and set aside. The Appellant be released from prison unless held lawful. It is so 14