emmanuel so migeshi badatu vs republic 2011 tzca 63 20 june 2011

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IN THE COURT OF APPEAL OF TANZANIA

AT TABORA ( CORAM: MSOFFE. J.A., KIMARO. J.A.. And MANDIA. J.A.) CRIMINAL APPEAL NO. 454 OF 2007 EMMANUEL S/O MIGESHI @ BADATU................................................APPELLANT

VERSUS THE REPUBLIC................................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Tabora) (Mzirav, J.l dated the 10th day of September, 2007 in Criminal Appeal No. 9 of 2005

JUDGMENT OF THE COURT 13 & 20 June, 2011 MANDIA, 3.A.: On 11/5/2004 the appellant appeared before the District Court of Nzega at Nzega on a charge of Rape c/s 130 and 131 of the Penal Code as amended by Sections 5 and 6(e) of the Sexual Offences Special Provisions Act, Act No. 4 of 1998. The trial court found the appellant guilty, convicted and sentenced him to life imprisonment. Aggrieved by both the conviction and sentence, the appellant preferred an appeal to the High Court of 2 Tanzania sitting at Tabora. The High Court found the appeal devoid of merit and dismissed it in its entirety. Still aggrieved, the appellant has filed a second appeal in this Court. At the hearing of this appeal the appellant appeared in person, while the respondent/Republic was represented by Mr. Juma Masanja, learned State Attorney. The appellant has filed a memorandum of appeal consisting of six grounds. The memorandum appears to be convoluted and repetitive which is not surprising because it is a self-help job. The content of the memorandum, however, seems to suggest that the main ground of complaint by the appellant is the credibility of the witnesses who testified against him in proof of the charge. To recapitulate on the facts of the case as established in the trial court and accepted in the first appellate court, it is on record that on 7/5/2004 PW4 E 541 Detective Constable Veri of Nzega

Police C.I.D. was handed over a police file for investigation on a charge of Rape. Detective Constable Veri testified that when he received the file the suspect one Emmanuel Migeshi had already been arrested, but PW4 did not disclose the 3 officer who effected the arrest. PW4 also testified that the complainant had already been issued with a PF3 by Puge Police Station, but did not disclose the identity of the police officer from Puge Police Station who issued the PF3. The role of PW4 Detective Constable Veri was to tender the PF3 in court as an exhibit despite the fact that he did not issue it. All the same the trial court accepted the PF3 tendered and marked it Exhibit PI. The PF3, Exhibit PI, was filled in by PW3 Dr. Emanuel Mshelele, a Medical Assistant at Puge Dispensary. The substance of his evidence is that on 6/5/2004 he examined the complainant and found her with an intact hymen but with bruises in her female organ and that the bruises could be seen with the naked eye. The witness who set the ball rolling in this case is PW2 Prisca d/o Juma, a housewife living at Igoko Village. She testified that on a day she did not remember her step-daugher Tatu d/o Rashid came back from school at 10 a.m. while carrying sweets (pipi). On asking Tatu why she came back earlier than normal and where she got the sweets, Tatu reportedly told PW2 that on the way to school she (Tatu) met the

appellant who bought sweets and medicines for her and gave her fifty shillings, after which he (the appellant) took her to the grass and raped her. In her evidence in chief PW2 Prisca d/o Juma gave two contradictory statements on what she did after Tatu reported the alleged rape. At first she said: - "I never checked her instead I sent her to her grandm other who checked h er and sa id that she was a b it tam pered with on her private p art. " Soon after uttering the above-quoted words, PW2 made the following statement: - 111 checked her and found her hymen in ta ct She was not seriously injured, she was n ot bleeding. I sent Tatu to Puge Police Station and given a ch it fo r the h osp ital." While under cross-examination by the appellant PW2 Prisca d/o Juma said: - "Her grandm other sa id that the ch ild hym en was n ot perforated but the vagina lig h tly tam pered w ith." 5 During re-examination by the public prosecutor PW2 Prisca d/o Juma said: - "Tatu was exam ined by her grandm other on the very day a t about 5 p.m . " It is evident that there is a contradiction in the evidence of PW2 Prisca d/o Juma on whether the complainant was examined by the un-named grandmother or by PW2 Prisca d/o Juma or by both. The trial court tried to resolve the contradiction at page 19 of the record by a note in the judgment which goes thus: - "PW2 Prisca on hearing thus she took the com

plainant to her grandm other who checked her private parts and the grandm other detected that the vagina was tam pered with though the hym en was intact. On hearing thus PW 2 Prisca also checked her and found that the vagina was tam pered with slig h t in ju ry leaving the hym en intact. " The above extract of the judgment of the trial court removed the contradiction in the evidence of PW2 Prisca d/o Juma by showing that the grandmother started first checking the complainant and was 6 followed by Prisca who conducted a second check. This observation by the trial court is, however, not supported by the record. Since the grandmother was not called to testify, the record has only the evidence of PW2 Prisca d/o Juma on the physical check of the complainant's female organs, and, as we have shown above, the evidence of PW2 contradicts itself on what happened in the check. The trial court ought to have resolved the contradiction in the testimony of PW2 Prisca d/o Juma on the basis of the evidence on record. In the instant case, the trial court tried to resolve the contradiction by importing into the record evidence which is not part of the record. The contradiction in the evidence of PW2 therefore remains unresolved. In MOHAMED SAID MATULA v REPUBLIC (1995) TLR at page 3 it was held, inter alia, thus: - "Held. (i) W here the testim onies by w itnesses contain inconsistencies and

contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible, else the court has to decide w hether the inconsistencies and contradictions are only m inor, o r w hether they go to the root o f the m atter;" In the present case the trial court did not address the inconsistencies along the lines of the Matula case by sticking to the record. This means the inconsistencies still remain on record and render the evidence of PW2 Prisca d/o Juma unworthy of credit, leading to an erronous finding of fact. We are a second appellate court, and are thus supposed to deal with questions of law only. Where however, it is found that both lower courts have failed to appreciate facts correctly because they have failed to apprehend correctly the substance, nature and quality of evidence which results in an erronous finding of fact, we are duty bound to intervene. We gather support for this view in Ludovick Sebastian v R, Criminal Appeal No. 318 of 2009 (unreported). We therefore find that the inconsistent testimony of PW2 is unworthy of credit and is hereby discounted. This leaves the evidence of the complainant only as the sole plank on which the charge could possibly stand. The complainant was an eight year old pupil at Igogo Primary School. The record of trial, at page 6, shows some words in brackets going thus: - 8 "(I am in class one a t Igogo

Prim ary School. We have dosed shool u n til 12/7/2004. I know to te ll the truth and I w ill te ll the truth ) . " After these words in brackets the trial magistrate made the following endorsement: - "Having conducted viva voce dire exam ination fin d (sic) the g irl is in tellig en t enough to take an oath and she affirm s and states: -" After this so-called voire dire examination the trial court allowed the complainant to testify on affirmation in which testimony the complainant said: - 7 am schooling a t Igoko Prim ary School. One day in the m orning I w ent to school. I don't re ca ll the date. On that day m y rig h t leg was aching. A t that tim e I was in the com pany o f one Kitalina. On the way I m et with one M igeshi who is here. M igeshi to ld me to go with him to the grass. He then sent me to the hospital. He bought m e som e m edicine and (pipi) sweet. The accused took m e a-m id the grass and raped me. He to ld me to lie down. He to ld me to take o ff m y school clothes. He la id on m y private parts. (The w itness points out the private area 9 with h er hand). He scratched me with h is hand down here (she show s the private p a rt with her hand). He played m y private parts with h is fingers. I fe/t som e pain nothing g o t inside me. He p u t dudu lake in m y private part. He gave m e shs. 50/=. I fe/t m uch pains. I w alked fo r home. M y m other asked m e and

I to ld h er th at M igeshi (am enibaka) raped me in the grass. My m other sen t m e a t Puge Hospital. We firs t w ent a t the police station. I was given a ch it and went to hospital. I am called Tatu R ashid o r Sem eni Rashid. This is the very ch it which was issued to me. PF3 duly iden tified and p u t in as identificaiton P .l." We have taken time to reproduce the evidence of the complainant during examination in chief as well as the so called voire dire examination because we are of the opinion that her evidence is the central plank of the case. As held by this Court in SELEMANI MAKUMBA V REPUBLIC, Criminal Appeal No. 94 of 1999 unreported: - "True evidence o f rape has to com e from the victim if an adult\ that there was penetration and no consent, and in the case o f any other women where consent is irrelevan t th at there was penetration." 10 In assessing the evidence of the complainant, we start with the fact that the complainant PW1 Tatu Rashid was a child of tender years aged eight at the time she gave evidence. Regarding the evidence of a child of tender years, this court made the following remark in Augustino Lyanga v Republic, Criminal Appeal No. 105 of 1995 (unreported): - "If we are to paraphrase the provisions o f Section 127(2) a court m ay only receive evidence o f a ch ild o ffe n d e r years who does not understand the nature o f an oath if in the opinion

o f the Court the ch ild is possessed o f su fficien t intelligence and understands the duty o f speaking the truth. These requirem ents m ust be recorded in the proceedings...it is our considered view that the two requirem ents are conditions precedent to receipt o f evidence from a ch ild o f tender years whose evidence has n ot been received on oath o r affirm ation." To our understanding, the Court is required under Section 127(2) to perform two tasks, namely: - 1. Form an opinion, which m ust be recorded in the proceedings, that the ch ild is possessed o f su fficien t intelligence to ju stify 11 the reception o f h is evidence, and understands the duty o f speaking the truth.

2. I f the court finds that the ch ild is possessed o f su fficien t intelligence to ju stify the reception o f h is evidence and understands the duty o f speaking the truth, the court then proceeds to form an opinion on w hether the ch ild understands the nature o f an oath o r not. I f the ch ild understands the nature o f an oath then he is taken to be a com petent w itness under Section 127(1) o f the Evidence A ct and is sw orn or affirm ed. I f the ch ild does n ot understand the nature o f an oath then h is evidence is received though n ot on oath or affirm ation. The test envisaged by Section 127(2) whose requirements we have set out above is the voire dire exam ination. We have quoted above what the trial District Magistrate recorded as compliance with Section 127(2) of the Evidence Act. The perfunctory manner in which the trial District Magistrate treated the evidence of PW1 Tatu Rashid cannot by any stretch of the imagination be taken to be voire dire exam ination. We are therefore satisfied that the evidence of PW1 Tatu Rashid was taken in breach of 12 Section 127(2) of the Evidence Act. We take note of the fact that the appellate High Court did not address itself on the requirement of the trial court observing the provisions of Section 127(2) of the Evidence Act. Instead the appellate High Court concentrated on the provisions of Section 127(7) of the Evidence Act,

thereby taking it that the victim was a competent witness. Since we have found that the complainant's evidence was taken in breach of Section 127(2) of the Evidence Act, such evidence is discounted. After discounting the evidence of the complainant, and after having showed the contradictions in the evidence of PW2 Prisca d/o Juma and also discounted it, there remains the evidence of the medical officer PW3 Dr. Emanuel Mshelele. The evidence shows bruises on the female organ, no blood and a hymen which is intact. Such evidence can only corroborate evidence of rape, previously given. There is no such evidence, which means the conviction and sentence cannot be sustained. We accordingly quash the conviction and set aside the sentence imposed upon the appellant. The appellant should be released from custody unless he is held on some other lawful cause. DATED at TABORA this 18th day of June, 2011. J. H. MSOFFE

JUSTICE OF APPEAL N. P. KIMARO

JUSTICE OF APPEAL W. S. MANDIA

JUSTICE OF APPEAL I certify that this is a true copy of the original. (E. Y. Mkwizu)

DEPUTY REGISTRAR

COURT OF APPEAL