director of public prosecutions vs samson so kivuto sogomba 2005 tzhc 264 19 september 2005

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 44 OF 2005 (Original Cr. Case No, 620 o f2004 of the District Magistrate Court of Mwanza at Mwanza Before: R. L David, Resident Magistrate) THE DIRECTOR OF PUBLIC PROSECUTIONS.................... APPELLANT Versus SAMSON s/o KIVUTO @ SOGOMBA..............................RESPONDENT 15th August 2005 & 19th Sept. 2005 i JUDGMENT RWEYEMAMU. Judge: samson s/o k ivu to @ sogomba the respondent faced a charge of rape in Mwanza district court. He was alleged to have raped a six (6) year old schoolgirl. The prosecution closed its case after the testimonies of three witnesses: Pw2 the victim, Pw1 her mother and Pw3 her teacher. The court found the respondent with no case to answer, acquitted and discharged him under s. 2.30 of the CPA. The DPP believes that on the evidence adduced in;the trial court, a prima facie case was made out; hence this appeal against the court's ruling. Before examining the gist of the adduced evidence, I should explain why the word closed, is underscored. The third witness testified on 14/12/2004, after which the prosecutor requested and was granted adjournment, for hearing to proceed on 14/1/2005. Strangely, the trial court record both typed and written; indicate that the case came up again on 14/12/2005, a date not yet here; when the prosecutor prayed to close the case. The trial magistrate's signature at the close of the transaction of that day reads 14/1/2005, with an order for ruling on 17/1/2005. This scenario leaves a prudent mind wondering as to when exactly the prayer by the prosecution to close its case was made and why? Be that as it may, I proceed now to examine the facts and evidence at trial with view to deciding the issue of whether the trial court's ruling was proper. The victim Pwlrs evidence was received, as noted in the trial court record, "following the procedure laid down under section 127 of the Tanzania Evidence Act, (TEA) 1967 as amended". The record however, clearly shows that the requirements of that provision were not exactly complied with. I should point out at this stage, that on the authority of the recent Court of Appeal decision in Deemay Daati, Hawa Durbai and Nada Daati v. R, Cr Appeal 80/2004, Arusha Registry (unreported), that omission has the effect of equating her evidence to that of any unsworn testimony. Such testimony as I believe rightly argued by my brother Mihayo J, (that in light of section 127 of TEA as amended by the Sexual offences Special Provisions Act. 4/1998), such evidence can be a basis for conviction "if the court is satisfied that the child o f tender years or victim of sexual offence is telling the truth; See the reasoning in Nguza Vicking Babu Sea & others v. R, Cr Appeal 84/2004, Dar es Salaam registry (unreported). According to the mother of the victim Pw2, on 18/5/204, her daughter Pw1 complained to her of pain while urinating, she also noticed her strange walk. Pw2 checked and noticed blood and bruises on Pwl's vagina. Pw1 then told her mother basically what she repeated in court: That the accused/respondent, works in a shop near their school; that she used to buy 'jojo' and sweets from there; that on the material day she was coming from school, the accused called her in the shop and promised to give her sweets. When she went in, he undressed her, laid her on a bed and inserted his penis in her vagina thereby injuring her; that she cried, then went home and reported the matter to Pw2. Pw2 testified that she reported the mishap to the police, received a PF 3, and went to Bugando hospital for medication, but the accused run away before arrest. (The accused however must have been arrested later as he was present, and on bail during trial). Prior to going to the police, Pw2 reported the matter to Pw3, her daughter's teacher of Mkudi primary school. i That was corroborated by Pw3. She testified that on 18/5/2004, Pw2 came to her home and informed her that her daughter had been raped. She then checked Pwx's vagina and noticed that it was "torn". The victim also told her that she was raped by Samson the shopkeeper (accused). On that evidence, the trial magistrate concluded, and I quote the relevant portion, that; "This is a serious case concerning the offence o f rape. I wonder if in the absence o f a PF 3 the allegation o f rape can be established. I say so because no witness has attempted to tender a PF 3. As a result of this all evidence adduced in court remains to be a necessary. I therefore acquit the accused under section 230 of the CPA 1985 because he has got no case to answer. It is so ordered" The Republic differs with that conclusion and submits that: 1. Had the trial court evaluated the evidence of Pw1, Pw2 and Pw3, it could not have reached a conclusion that the accused had no case to answer. 2. The magistrate's conclusion that conviction of a serious case of rape could not be made in the absence of a PF 3 is wrong. Documentary evidence as per s. 62 of TEA, is only an addition to direct evidence and not necessarily the only base for conviction. 3. The trial magistrate erred in failing to conduct a voire dire examination as per requirement of s. 127 of TEA. The critical question for decision is whether on the evidence, the trial court properly made a finding of no case to answer. I agree with the Republic's conclusion that it did not. Why? Because on the evidence, I believe a prima facie case was made out. The question of when a prima facie case can be said to have been made out has been considered a number of times by this court and a conclusion reached that, "the case to be called prima facie must be that:- ' a reasonable tribunal properly directing its mind to the law and evidence, could convict if no explanation is offered by the defense See R Vs Makuzi Zaidi & Another, 1969 HCD 249; where the late Georges CJ. Confirmed the magistrate's reliance on the criteria laid down in the case of Ramanlal Prambakali Bhat V R (1957) E. A. 332, and Sunderji v R 1971 HCD 316. But of course, as further explained in R v. Binonyira, (1971) HCD, 216, that position does not mean the evidence must be sufficient to convict even if the accused offers no defense. As I understand it, such evidence should be sufficient to require the accused to give some explanation, even though at the end, the conviction will be based on the strength of the prosecution's case. What now can be said of the evidence adduced in the case at hand? On the evidence of the victim whose value I discussed above; that of her mother and her teacher; clearly even in the absence of a PF3, the fact that she was raped was established. As to who committed the offence, the victim mentioned the respondent whom she knew before, both to her mother and teacher. In my opinion that was sufficient evidence to require the accused/respondent enter his defense. ! I accordingly find that the appeal is merited and quash the trial court ruling. In view of the fact that this is a rather recent case, and the trial magistrate in question is already transferred from Mwanza' station, I order that the case should start afresh before another Coram: Judgment delivered in the Open Court at Mwanza on 19th day of September 2005 in the absence of the Respondent and in the presence of Mr. Kiria S/Attorney for Republic.