emmanuel makigo vs republic 2024 tzhc 854 31 january 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA I IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA I CRIMINAL APPEA1L NO. 40 OF 2022 EMMANUEL MAKIGO APPLELLANT VE+US REPU BLIC RESPON DENT [Appeal from the Decision of Di+ict Court of Bariadi at Bariadi.] CHon. M.M. Nyangusi RM) dated the 24'" d* of March, 2022 In Criminal Case INO. 56 of 2021 lUl;G~ENT It1' November, 2023 & si« January, 2024. S.M. KULITA, l. This is an appeal from Bariadi District Court. The appellant herein above was charged for Rape, contrary to the provisions of sections 130 (l)(2)(e) and 131(1) of the Penal Cdde [Cap 16 RE 2019]. The Appellant was also charged with Unnatural ofence, contrary to section lS4(l)(a) of the same law. 1 It was alleged that, on 2nd JU~e, 2021 during the evening hours, at Lutubija village within Bariadi District in Simiyu Region, the appellant had sexual intercourse and carnal knoLledge against order of nature with M.M. (Not her real name), a girl of ~ years old. In a nut shell, the prosecutibn case as was unfolded by its five I witnesses is that, on the material date, the appellant went to the house I in which the victim resides, aSked for drinking water, then asked the l victim's mother that he was taking the victim to the shop to buy candy for her. Thereby, the appellant took thJ victim to the unknown place till when the victim came knocking at her parents' house in the morning of next day. It is alleged that though they Ihad traced for her at different places with the help of the neighbors, yet they didn't find her till when the victim I came back home by herself on that next day. On her arrival, the victim revealed that, the appellant, had taken her to the maize farm, raped her and had carnal knowledge against order of nature to her. As usual, the victim was taken to Police where thJ Medical Examination Form (PF3) was issued. She was then taken to hos~ital for medical examination, where it was verified that, the victim was raped due to the finding of bruises, swelling and blood on her vagina ~nd anus. The appellant was arrested and arraigned to court. 2 In his defense, the appellant stated that, he used to graze the victim's father's cows, in return, he was supposed to be paid one cow in each year. That, by the time he wanted to leave the job, the victim's father denied to pay him his rights. That is why he was fixed in this case. Though the appellant denied to have committed the offence, contending that the case was just incriminated against him, he was however, convicted and sentenced to serve 30 (thirty) years Imprisonment for Rape and Life Imprisonment for Unnatural Offence. The sentences to run concurrently. That decision aggrieved the appellant, hence this appeal with 4 (four) grounds which can be summarized as follows, one, no independent person or local leader of the area had been summoned to testify, two, neither of the villagers who had arrested him was called to testify, three, conviction was wrongly based on the family members only, four, procedures on voire dire examination were not followed. On 9th August, 2023, the appeal was scheduled for hearing through written submissions. Both parties complied with. Mr. A.K. Nasimire, Learned Advocate, represented the Appellant whereas the Respondent, Republic, had the service of Ms. Caroline Mushi, Learned State Attorney who resisted the appeal. 3 ---------------_._ .. _- ._- -- -_._--------_._ .. _- -_ .... _----_ .._------_ .._--_._---------------------_.---- Submitting in support of the appeal, Mr. Nasimire stated that, as the alleged victim of the offence is a minor of six years old, then the trial Magistrate ought to have followed procedures set in the case of Godfrey Wilson vs. Republic, Criminal Appeal No. 168 of 2018, CAT at Bukoba before the witness promises to tell the truth. To him, the proceedings show nothing before the victim (PW2) promised to tell the truth. With this omission, he prayed for the testimony of PW2 to be expunged from the record. It was his further contention that, after the victim's evidence being expunged, then there will be no any other evidence to corroborate the evidence on record to support the conviction. In her reply on that matter, Ms. Mushi, State Attorney, stated that, page 12 of the typed proceedings show that, the court had asked some questions to the victim (PW2) though not written, before it came into the conclusion that the victim promised to tell the truth. To her, the omission to record such questions and answers put to the victim before she promised to tell the truth, is not fatal. I went through page 12 of the trial court's proceedings and found it recorded as I hereunder quote; "COURT:the witness is a minor of 6 veers, upon asking her few questions I found that she does not understand 4 the meaning of oath. She just promised tell court the truth. Section' 127 of Evidence Act Cap 6 RE 2019 complied with" With the above quoted excerpt from the trial court's proceedings, one cannot be certain as to whether the victim was actually asked the questions or promised to tell the truth. If follows therefore that, the quoted excerpt would have been written by the court after those questions being asked and its answers recorded. As well the victim's reply to tell the truth but not lies would have been recorded too. Those omissions by the trial court is fatal as per the case of Godfrey Wilson (supra). Hence, the evidence of PW2, has no evidential value. As per the case of Selemani Makumba vs. Republic [2006] TLR 386 the best evidence in sexual offences cases comes from the victim, As long as in this case the evidence of the victim has been held to have no evidential value, then, there is no evidence remaining to be corroborated by the evidence of PW1, PW3 and PW4 in view of sustaining conviction against the Appellant herein. In that circumstance, I find the 4thground of appeal meritorious, hence sustains. 5 ~,.-.~ .•... - , -- ..----- - ----- -.~ -.- - -~ -..--- .. -..--~ - ---- -~ -- -~ - --- - - That finding alone makes me to allow the appeal, quash the conviction and set aside the sentence imposed against the appellant. I further order for an immediate release of the appellant unless he is held for any other lawful cause. S.M. KULITA JUDGE 31/01/2024 DATED at SHINYANGA this 3pt day of January, 2024. 1+L S.M. KULITA JUDGE 31/01/2024 6