emmanuel so mahundi vs republic 2024 tzhc 256 16 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA CRIMINAL APPEAL NO. 75 OF 2023 (Original Criminal Case No. 16/2023 o f the District Court o f Kilolo at Kilolo before Hon. T.G. Maleko, SRM) EMMANUEL S/O MAHUNDI........................................... APPELLANT VERSUS REPUBLIC ............................................. RESPONDENT JUDGMENT 02nd& I f f February, 2024 I.C. MUGETA, J: At the incident time, the victim (I reserve the name to hide her identify) was aged 6 years, a class II pupil at Ibumu Primary School. It is alleged that on 1/3/2023, the appellant had had carnal knowledge of her. Thadei Alfred Mgaya (PW4) examined her medically and concluded that her vagina was penetrated by a blunt object because her labia manora and majora were swollen, lacerated and with blood clots. He testified further that during medical examination, the victim sensed severe pain when touched on her vagina which prevented him to go ahead to examine whether the hymen was perforated and the presence of spermatozoa. The PF.3 was admitted as exhibit PI. From the evidence of both side there is no dispute that the appellant is a pastor and taught religion subject at Ibumu Primary School. Page 1 of 11 Scola Nickson Kitaso (PWl) testified that she found the appellant "infiagrante delicto" carnally knowing the victim. She was on her was on her way to fetch water when an abandoned bicycle attracted her attention. Out of curiosity, she traced the owner which led to her discovery of the incident resulting into this case. The appellant overpowered her and escaped on his bicycle. He was later arrested. Upon his arrest he was charged with rape contrary to section 130(1), 2(e) and 131(3) of the Penal Code [Cap. 16 R.E 2022]. He denied the charge but after a full trial! the learned trial magistrate found him guilty and sentenced him to life imprisonment. His appeal has 4 grounds of appeal. I. The evidence o f the victim (PWZ) is incredible, ii. The evidence o f Scoia Kitaso (PW l) and the victim (PW2) is contradictory. Hi. The caution statement was recorded contrary to the iaw. iv. The prosecution case was not pro ved. I shall determine the appeal on account Of the 4th ground of appeal. ITie other complaints shall be reasons considered to support the complaint in the 4th ground. Rape is proved by evidence of penetrating a woman's vagina by a man's penis without the woman's consent. If the woman is under 18 Page 2 of 11 years of age, consent is immaterial. In this case, the victim said she is aged 6 years. The same evidence came from her father Anderson Ikanyangwa (PW3). Therefore, age was proved. Hence, legally she lacks the capacity to consent to sexual intercourse. Was the victim raped? Scola (PW1) testified to have found both the victim and the appellant half naked, the appellant lying on top of the victim. The victim testified that the appellant inserted his "mdudu" in her vagina. I hold that in the context of this case by "mdudu" the victim referred to a penis. Therefore, PW2 said the appellant inserted his penis into her vagina. Her evidence is corroborated by Scola (PW1) who is an eye witness and the doctor who testified as PW4. He saw the victim with lacerated, blood stained and swollen labia manora and majora. In the whole, I have no doubt that the victim was penetrated with a blunt object (penis) and considering her age (6 years), I have already said, consent is immaterial. The question for determination is whether the appellant who, allegedly, penetrated her was properly identified. I shall revert to this issue later hereunder. Let me deal first with his grounds of appeal. The appellant has argued that the victim's evidence that it is him who did it is incredible because it was recorded in violation of section 127(2) of the Evidence Act [Cap. 6 R.E 2022] as the trial magistrate did Page 3 of 11 not test her knowledge to ascertain if she understands the nature of oath and she did not promise not to tell lies. She just promised to tell the truth. I have reviewed the trial court's proceedings it shows that the trial magistrate ascertained that the victim did not know the meaning of oath and caused her to promise to speak the truth. As conceded by Nashon Simon, learned State Attorney, the victim was not made to promise not to tell lies. In his view that is the trial magistrate's fault which cannot be blamed on the witness, I agree but violation of rules by an adjudicator would not spare the evidence recorded if the violations are so fundamental to the root of justice or prejudiced any of the parties. Section 127(2) of the Evidence Act, as it was before, indeed, required the witness to promise not to tell lies alongside the promise to speak the truth. This requirement was, however, watered down by section 32 of the Legal Sector Laws (Miscellaneous Amendments) Act No. 11/2023 in that such irregularity does not render the evidence inadmissible. Notwithstanding, it is my view that a promise to tell the truth and a promise not to tell lies are mutually exclusive. In my considered opinion, a promise not to tell lies after a promise to speak the truth is superfluous and redundant. Hence, in my view, it suffices once a witness promises to speak the truth. Therefore, the evidence of Page 4 of 11 PW2 who promised to tell the truth is valid and legally on record. I find no merits in the first ground of appeal. Regarding the complaint on contradictions, the only contradiction in the evidence of PW1 and the victim (PW2) which the appellant pointed out is that PW1 said she was with two teachers when they picked the victim at the scene of crime while the victim said PW1 was alone. Other complaints pointed out in his submissions are not about contradictions but they challenge the credibility of PW1.1 shall deal with them hereunder seriatim. Regarding the complaint on the contradiction raised, whether PW1 was alone when she picked the victim at the crime scene, Nashon Simon said generally that he does not see that contradiction. Indeed, PW1 said she had two other persons when she picked the victim from the scene of crime. She said at page 10 of the typed proceedings: "I, mwalimu Kivambate and another teacher we went to that verandah we took... (name of the victim withheld) and went to school with her". On her part, the victim testified at page 14 of the proceedings: "Then Scofa took me to the teacher in the office o f the school (sic)." Page 5 of 11 Like Nashon, learned State Attorney I see no contradiction in these statements. The victim's reference to Scoia alone does not necessarily mean that the two other men were absent. Witnesses are not bound to reproduce verbatim what the other witness said except on material issues which are unlikely to be perceived differently by them. Notwithstanding, whether Scola was with two other persons is not a material issue. The complaint about credibility of Scola (PW1) includes that she did not yell for help when she found him raping the victim. It is my view that this complaint is an afterthought as the appellant did not put that question to the witness during cross examination. However, when questioned by the trial magistrate about this issue, Scola responded that it was because there was nobody around to help as people were away in the farms. For reason to be apparent later in this judgment, I refrain from using this evidence to reach any decision. Another complaint is that Scola did not testify on how she identified the appellant's bicycle without mentioning if it had a special mark for her identification. In her evidence Scola testified that she found a bicycle parked which attracted her attention to find the whereabout of the owner which led to the discovery of the appellant in the illegal act. Page 6 of 11 The bicycle, therefore, was just a signboard. Further, here in court, the issue is not who owns it. The complaint has not merit. The appellant submitted that the victim was taken to hospital before reporting to the police station. Indeed, when the victim was taken to Ibumu Dispensary before the incident was reported to the police station. I am settled that legally, nothing is wrong with this. She needed immediate attention. However, the record is clear that after initial medical care at the dispensary, the victim was taken to Ilula Hospital after obtaining a PF3 at Ilula Police Station (exhibit PI). The complaint has no merits. The appellant also complained that; all witnesses are relatives. I do not think so as he did not specify who are relatives among the six prosecution witnesses. Be as it may, no law bars relatives to be witnesses in the same case. The second ground of appeal has no merits. I move to the third ground. The cautioned statement was admitted as exhibit P2. It was recorded on 1/3/2023 at 17:00 hours. The appellant's complaint is that it was recorded 4 days after his arrest and the recording officer did not introduce himself to him. Further, that it shows the time when the Page 7 of11 recording started only, therefore, section 53 of the Criminal Procedure Act was violated. Nashon Simon argued, without details, that the statement was recorded timely. The incident occurred on 1/3/2023 and the statement was recorded at 17:00 hours on the same date. There is no evidence as to when the appellant was taken to police station to help calculating when the 4 hours within which to record it started to run. It was upon the prosecution to prove that the evidence in the caution statement was legally obtained. As no such evidence and the legality of the statement cannot be ascertained, it is unsafe to rely on it. The trial court erred to rely on it to convict the appellant. As it cannot be said with certainty that it is illegal, the remedy is not to expunge it from record. I shall simply disregard it. However, it is my view that even without it, the appellant was rightly convicted which takes me back to the reserved question of identification. The appellant's defence is an alibi. That he was at another place at the incident time. This alibi, however, is unproved and was raised without prior notice. The appellant did not bring the people whom he gave spiritual service at the incident time to support his alibi. Since he did not give notice of his alibi, he was bound to prove it. Page 8 of 11 It is true, as submitted by Nashon Simon, that the incident occurred at day time, therefore, the question of mistaken identity does not arise because both the victim and Scola were familiar with the appellant and there is no evidence of sour blood among them. Further, the time spent between the appellant and Scola exchanging words on why he did that to a child while Scola would have offered him sex if he asked rather than seeing him defiling children eliminates mistaken identity. The same apply to the victim. She said the appellant picked her on his bicycle and rode to a place where he ravished her. Scola named the culprits to the people she met immediately after the incident and the search leading to the arrest of the appellant was mounted. Considering the chain of events, this is a case where the identification parade was unnecessary. The alibi of the appellant that at the incident time he was at another place casting demons is unsubstantiated. He failed to name those people or the place where he was casting the demons. His alibi, in my view, is an afterthought. Consequently, I hold, the fourth ground of appeal that the prosecution case was not proved has no merits too. I dismiss it. The proceedings of the trial court has the following irregularities which, I am, however, satisfied that did not prejudice the appellant. One, preliminary hearing shows admitted facts without ail the facts Page 9 of IX from which the agreed facts was extracted. Two, the learned trial magistrate asked every witness questions which by their nature are not for clarification but for testing or impeaching the veracity of witnesses and the mark used to identify questions by the court is "xd" which stands for examination in chief. This is the reason in my decision I have ignored all the evidence obtained in that form because questions by judges/magistrates ought to be limited to seeking clarification. Three, re-examination of a witness which ought to be depicted by the acronym "Rexd" has been replaced by "xd". Notwithstanding, as the flow of events can be ascertained despite the said mix up, the proceedings, in my view, are not vitiated. Having analysed the evidence on record, I am satisfied that the charge was proved beyond reasonable doubts. The appellant was rightly convicted and sentenced. I uphold both the conviction and sentence. The appeal is dismissed. ' N > JUDGE 16/2/2024 Page 10 of 11 Court: Judgment delivered in open court in the presence of Baton Mayage and Majid Matitu, learned State Attorneys and the appellant in person. Sgd: 2.C. MUGETA JUDGE 16/2/2024 Page'll of 11