elirehema godfrey mjema vs r 2022 tzhc 15156 8 december 2022

THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF DODOMA AT DODOMA DC. CRIMINAL APPEAL NO. 51 OF 2022 (Originating from the District Court of Kongwa at Kongwa in Criminal Case No. 50/2021) ELIREHEMA GODFREY MJEMA.................................. APPELLANT VERSUS THE REPUBLIC.....................................................RESPONDENT JUDGMENT Date ofJudgment: 08/12/2022 Mambi, J. In the District Court of Kongwa at Kongwa the appellant ELIREHEMA GODFREY MJEMA was charged with two counts of unnatural offence contrary to section 154(l)(a) and cruelty to children contrary to section 169 A (1) and (2) of the Penal Code [Cap 16 R: E 2019]. On the first count, it was alleged by the prosecution that the accused person/appellant on 27th April, 2021 at 06:00Hrs at Mbande Village within Kongwa District in Dodoma Region did have carnal knowledge to i his blood daughter of 6years old against the order of nature. On the second count, it was alleged by the prosecution that on the same day and place mentioned on the first count the accused person/ appellant assaulted the said child by using sticks causing her to suffer severe injuries. The trial court found the accused person guilty on both charges. The accused person having been convicted was sentenced to serve a life imprisonment for the first count and five (5) years imprisonment for the second count whereby both sentences were ordered to run concurrently. The accused person was further ordered to pay Tsh. 200,000/= in compensation to the victim. Aggrieved, the accused appealed to this court challenging the decision of the trial court. In his appeal the appellant preferred four related grounds of appeal. During hearing, the appellant appeared under the legal services of the learned counsel-Mr. Kiondo Rajabu and Shamima Hiza whereas the Republic was represented by the learned State Attorney Ms. Patricia. In their submissions the learned counsels for the appellant faulted the proceedings of the trial Court for failing to comply with section 127(2) of the Evidence Act, Cap 6 [R: E 2019]. The counsels contended that PW5 who was the victim was a child of tender age which in recording her evidence the trial court was supposed to comply with the requirement of section 127(2) above which require a child of tender age to promise to tell the truth before giving his or her testimonies if his or her evidence is taken without oath or affirmation. The counsels prayed this Court to expunge from the proceedings the evidence of PW5 for having been taken in contravention of section 127(2) of the Evidence Act. The 2 appellant counsels referred this court to the different decisions of the court which are Fred John vs The Republic, Criminal Appeal No. 17 of 2018 (CAT-Dar es Salaam), Shaibu Nalinga vs The Republic, Criminal Appeal No. 34 of 2019 (CAT-Mtwara), Issa Salum Nambaluka vs The Republic, Criminal Appeal No. 272 of 2018 (CAT- Mtwara). The appellant's counsels went ahead submitting that the prosecution did not prove the charges against the appellant beyond reasonable doubt as the evidence of four witnesses was hearsay evidences. The counsels referred this Court to the decisions of the court in Nathaniel vs R, TLR 2006 at page 395 The appellant's counsels further submitted that the trial Magistrate did not consider the defense evidence in its decision. The counsels contended that this was contrary to the provisions of the laws. The counsel backed up their position with the decision of the court in Jose Mwalongo vs The Republic, Criminal Appeal No. 217 of 2018. Responding to the appellant's submissions, the learned State Attorney Ms. Patricia, for-the Republic, conceded the fact that PW5 (the victim) did testify at the trial court without giving a promise to tell the truth. However the learned State Attorney contended that since the evidence was reliable, the court needs to consider that evidence. The learned State Attorney submitted that the trial court was right in convicted the appellant basing on the evidence of the child of tender age. The learned state attorney referred the decision of the court in Wambura Kiginga vs The Republic, Criminal Appeal No. 301 of 2018 (CAT-Mwanza). The learned State Attorney added that the prosecution proved the case 3 beyond reasonable doubt. She argued that the evidence of the victim and other witnesses is clear that the appellant had carnal knowledge with the victim against the order of nature. Having summarised submissions from both the appellant and the respondent Republic, I now revert to the appeal at hand. I have perused the trial court proceedings and found that there is nowhere to show that the court recorded the promise of the child (PW5) as required under section 127(2) of the Evidence Act, Cap. 6 [R: E 2019]. However, there is no dispute from both sides that PW5 (the victim) at the time she was giving her evidence she was six years old but she did give her evidence without oath and did not promise the trial Court to tell the truth and not lies. The question which comes into my mind is, is that fatal to lead her evidence to be expunged from the records as suggested by the appellant's counsels? I am aware that Section 127(2) of the Evidence Act directs the courts on how to deal with the witnesses of tender age. That section provides that; "A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies". Courts have interpreted section 127(2) of the Evidence Act to mean, the child of tender age is that who is not more than 14 years old. That if the said child of tender age gives his or evidence without oath or affirmation then before giving the evidence, he or she must promise the trial court that he/she will tell the truth and not lies and that the duty of the court will be to assess the credibility of the evidence of the child of tender age to satisfy itself that the child of tender age is telling nothing but the 4 truth. The court must also record that the child has promised to tell the truth and not lies before taking his or evidence. Now the question then is, what happens in appeal when the trial court failed to record the promise of the child of tender age especially the child who is below ten years old as indicated in our case? It is trite law that where the evidence of the child of tender age is reliable the court heads to consider that evidence regarding in this regard, the court shall not expunge the evidence of the child of tender age simply because there was a more omission on the compliance of section 127(2) of the Evidence Act, Cap 6. The position has been recently elaborated by the Court of Appeal in the Court of Appeal of Tanzania in Wambura Kiginga vs The Republic, Criminal Appeal No. 301 of 2018 (CAT-Mwanza) (herein the Wambura's case). The Court of Appeal in refusing to expunge the evidence of the child of tender age from the proceedings in reliance on section 127(6) of the Evidence Act, looked into the entire evidence of the child and the appellant, upon being satisfied with the evidence of the child at page 10 of the judgment, the Court stated as follows; "in this case we are fully convinced, that although the child did not promise to tell the truth, what she narrated was original, true and authentic" Reading between the lines in the above paragraph quoted from the decision of the Court of Appeal it is clear that the most important thing to be considered is the truthiness and authenticity of the evidence and of course the reliability of the evidence of the child and not the mere 5 promise. This goes in line with the credibility of the witness that is the child of tender age. The Court went ahead at page 14 stating that; 7/7 the circumstances of this case, we think, as indicated a while ago, that substantive justice needs to be done even in favour of children of tender age, who while giving evidence, every circumstance, like in this case, suggests that they told the truth and not lies, even if they might not have taken oath or affirmation or promised to tell the truth and not lies in compliance with subsection (2) of section 127 of the Evidence Act. The Court was interpreting section 127(6) of the Evidence Act which reads as follows:. (6) Notwithstanding the preceding provisions of this section, where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender years or of a victim of the sexual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years of as the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child of tender years or the victim of the sexual offence is telling nothing but the truth." Expanding the interpretation of section 127 (6) of the Evidence Act, the Court of Appeal in Wambura's case supra went on by stating that it was possible to convict a culprit of sexual offence, where section 127 (2) of the Evidence Act was not complied with provided that some conditions must be observed to the later. The Court laid down the key 6 guiding principles in dealing with evidence of the child of tender age. More specifically the Court at page 15 of its observed that: - first, that there must be dear assessment of the victim's credibility on record and; second the court must record reasons that notwithstanding non-compliance with section 127(2), a person of tender age still told the truth." Looking at the evidence of the victim (PW5) who was the child of tender age in our case, it is clear that the witness testified reliable and authentic evidence that was corroborated by PW1, PW2, PW3 and PW4. The records such as the proceedings at page 34 show that the child (PW5) testified as follows: - ''My father is called Erilehema. He is behind us in this court. My father is living in Dodoma. We were living with my father. We (sic) only living alone with my father and neighbours. My father used to beat me by using ''mwiko". I had injuries in (sic) my body but they disappeared for now. He also used to ''kunifinya shingoni na mapajani" ''na pia a/inichanja na viwembe sehemu za mikono na miguuni". He used to do the same because when I came back from school I went to my grandparent. Apart from beating me he raped me and undressed my clothes. I do fear my father. 'AHkuwa anaingiza mdudu wake mbele na nyuma". He used to do the same act of raping me three times. While he was doing that, I was feeling bad ''na nilikuwa naumia na/ia ananiambia nyamaza". It is in evidence that after the arrest of the accused the victim, PW5 was sent to her mother and at the time she was giving her evidence she was staying with her mother. 7 7 live with my mother where I (sic) from. My mother to/d me to state that my father did not raped (sic) me. I am speaking the truth I don't He." Reading between the lines from the above paragraph on the testimony of the victim, it is hard to believe that the child was telling untrue evidence. In my view, expunging such very reliable evidence of the child of tender age given the injuries sustained by young innocent child is to deny substantial justice and protection right of the child. The victim, PW5 in her evidence maintained the same wordings even during cross-examination. Reference can also be made to the statement of the victim (PW5) when she was cross-examined by defense counsel at page 35 of the proceedings where the witness stated as follows: 7 was living both to you and my grandmother. You ''uiinichanja wewe na viwembe". You also used to undress my clothes. That is true you inserted your ''dudu" in my private part. Yes you raped me at night. You used to take me even if I went to my grandmother. Grand parent who is at Mbande. That is because my father ''aiikuwa ananipiga na kunichanja na viwembe............ " The appellant, on the other hand in his evidence denied to have been living with his child PW5 and denied to have committed all the offences he being charged. However, when PW4 D/C Lawi was testifying for prosecution side, stated that the appellant accepted his cautioned statement that contain his confession to be admitted by the court. The trial Court admitted the caution statement as Exh. P2. In the caution statement the accused/appellant confessed that he rented and was living in a single room and was staying with the child (PW5) having 8 taken her from her mother who was married to another man. The records show that the appellant confessed further that on 26/04/2021 at around 20:30hrs he beat PW5 on the ground that she defecated and urinated on the bed but refused to bathe and that was her behavior. On the other hand, considering the fact that accused person/appellant conceded that he was living with PW5, this suggests that PW5 told the truth and not lies. The evidence of the child evidence is credible, even if she might not have taken oath or affirmation or promised to tell the truth and not lies in compliance with subsection (2) of section 127 of the Evidence Act. That said, I agree with the learned State Attorney Ms. Patricia that even if the evidence of PW5 was taken in contravention of section 127(2) of the Evidence Act, it did not necessarily mean that the evidence did not constitute truth or authenticity. As I have demonstrated above that what the victim told the trial Court was the truth, then what follows is to declare that she is entitled to benefit from section 127(6) of the Evidence Act. In this regard, find no valid reason to expunge the evidence of the victim, PW5. The appellant's counsels further complained that the appellant's evidence was not considered by the trial Court in its decision. Going throughout the decision of the trial court, despite the fact that the appellant did not categorically state as to which evidence exactly was not considered by the trial court, this Court is satisfied that the trial court in its decision considered both evidence from the prosecution and the defense as seen at page 9 of the judgment of the trial court. 9 However, if at all there are some defense evidences which were not considered by the trial court, the remedy has always been for the first or second appellate court to analyze the evidence that was not considered and come up with a position that meets the ends of justice. See Felix Kichele and Another vs R, Criminal Appeal No. 159 of 2005, Shabani Haruna @ Dr. Mwagilo vs R, Criminal Appeal No. 396 of 2007, Oscar Justinian Burugu vs R, Criminal Appeal No. 33 of 2017. Indeed, this Court being a first appellate court is mandated to step into the shoes of the trial court and assess whether or not the defense evidence raised any reasonable doubt against the prosecution evidence. This court went through the entire records and analysed the evidence of both parties and observed that the appellant actual committed an offence he stand charged. The accused/appellant DW1 and his witness DW2 Steven Chamwela denied the fact that the child was living with the appellant and did not commit the offences he was facing. Both DW1 and DW2 stated that the child was living with Hamis's family. They further stated that the appellant used to provide only for maintenance to his child who would visit him occasionally (usually on weekends) to watch Tv. It was during the cross-examination when the appellant stated that the charges against him were doctored/framed with intention to defame him. The appellant stated that it was the Village Executive Officer (VEO) meaning the prosecution witness PW2 who was the one behind the scene framing the charges against him since DW1 refused to give her half of the money he got from the election activities. One wonders if at all the appellant knew that the charges were framed by PW2 why didn't he cross-examine the said prosecution witness on that fact? The other io question to be asked is, why the appellant didn't introduce this fact during examination in chief only to introduce when he was cross- examined by the prosecution? This Court is of the strongest view that this defense by the appellant was an afterthought. In the end I this Court finds that the defense evidence failed to raise any doubt which could have affected the prosecution case. In respect of the submissions by the counsels for the appellant that the prosecution did not prove the case beyond reasonable doubt. I am mindful that the burden of proof according to the law rests throughout with the prosecution, usually the state (See AH Ahmed Saleh Amgara v R [1959] EA 654). The Republic owes the primary duty of proving that the accused committed the actus reus of the offence charged, with the mens rea required for that offence. This is also reflected and founded on the Latin maxim that "he who alleges must prove"and since it is the Republic who makes allegations on charges against the accused it must prove beyond reasonable standards as required by the law. In my view as viewed by others that this in the eyes of law means that the principal burden is on the accuser, and in criminal cases the accuser is the prosecution, usually the state or Republic. It is the trite law that in criminal cases the burden of proof has always remained on the state throughout, to establish the case against the accused beyond reasonable doubt. The rationale for this principle and legal position is that since the burden lies throughout on the state (the Republic), the accused has no burden or onus of proof except in a few cases where he would be under the burden to prove certain matters. This position was clearly clarified and underscored by the court in Milburn v Regina [1954] TLR 27where the court noted that: li "it is an elementary rule that it is for the prosecution (the Republic) to prove its case beyond reasonable doubt and that should be kept in mind in all criminal cases". There is no doubt that as this court has already alluded in various cases that a prosecution case must, as the law is, be proved beyond reasonable doubt. The plain meaning of this principle is that the prosecution evidence must be strong to leave no doubt to the criminal liability of an accused person. However, from the evidence produced by the prosecution at the trial court, I agree with the prosecution submission and find no merit in the complaint by the accused/appellant that the prosecution failed to prove its case beyond reasonable doubt. Looking from the sequence of events and evidence adduced by the prosecution through their witness, there is clear conclusion that the prosecutions proved its case beyond reasonable doubt. It is also clear from various authorities through court cases that the main evidence for an offence of rape, is the evidence from the victim and this is the position of the law including some decided cases that the main victim in rape case which is similar to our case is the victim. However, it is the duty of prosecution to prove the criminal cases such as rape beyond reasonable doubt by proving to the court that the victim was actually raped by the accused and there was penetration. The evidence must be clear and credible without leaving any doubt that would lead to injustice to the innocent accused. This can also be reflected from the case of Ainea Gideon versus Republic, Criminal Appeal No. 183 of2008, where the court held that:- "... In order to establish the offence of rape, the following elements have to be proved:- 12 1. That there was penetration; 2. That there was tack of consent; and 3. That it was the appellant who committed the act." The fact that the victim properly testified that she was raped for several times by her father creates no any doubt that the victim could have formulated her own evidence taking into account he was her father. Inference on the sequence of evidence, facts and events that led to victim to be raped can be traced and drawn from the way the key witness that is the victim (PW5) who narrated the long story in her evidence. Reference can be further made to the evidence of PW5 as indicated under page 34 and 35 of the proceedings which I early referred in this judgment. PW5 in her testimony testified that: - "Apart from beating me he raped me and undressed my clothes. I do fear my father. 'AHkuwa anaingiza mdudu wake mbele na nyuma". He used to do the same act of raping me three times. While he was doing that, I was feeling bad 'ha niiikuwa naumia na/ia ananiambia nyamaza". Similarily during cross examination the witness (PW5) narrated her ordeal as follows; "You also used to undress my clothes. That is true you inserted your ''dudu" in my private part. Yes you raped me at night. You used to take me even if I went to my grandmother. Grand parent who is at Mbande. That is because my father ''aiikuwa ananipiga na kunichanja na viwembe............ " 13 The records further reveal that PW1 Neema Ngailo who was the victims' teacher, testified that having noticed the injuries on the body of the victim who could not walk properly she reported the matter to PW2 (Isabela Mgombaheka ) who was the Mbande Village Executive Officer (VEO). The evidence further show that PW2 reported the matter to the Mbande Police Station where she was given a PF3 and sent the victim to Sejeri Health Center. The victim was there after examined by PW3 Majaliwa Philmon PW3 who in his evidence testified that the victim was injured as she had old and fresh injuries on different parts of her body and a swelling on her buttocks and could not seat well. PW3 further stated that he realized that the private parts (vagina and anus) of the victim was raped and carnally known against the order of nature. Basing on these evidences plus that of PW5 as analyzed above, coupled with the principle in Selemani Makumba vs R, [2006] TLR 379 that in rape cases the best evidence is that of the victim. My view is, the prosecution successfully proved both counts beyond reasonable doubt and the appellant was rightly convicted. The records clearly show that the trial court was right in its decision as the evidence shows that the offence of unnatural offence and cruelty to children was established beyond all colours of doubt and the prosecution proved the case-beyond reasonable doubt. In the instant case, so long as there is evidence of penetration as testified by the victim (PW5) and PW3 necessary for an offence of rape and unnatural offence. It is clear that the accused did commit an offence as charged. In this regard I have no reason to fault the finding of trial magistrate. In the event, and for the reasons stated above, I am satisfied that the appeal has no merit and I dismiss the appeal in its entirety. 14 Order accordingly. Judgment delivered electronically this 8lh day of December, 2022 in 15