20150911 TZHC Arusha

I IN THE HIGH COURT OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 17 OF 2015 {Originating from Kiteto at Kibaya District Court Criminal Case No. 272/ 2:013) I FRED JOHN TIBAIJUKA RASI. ............................... APPELLANT I VERSUS i THE REPUBLIC ....... I ■■■ •• ■■■■■■ ••••••••••••••••••••••••••••••• RESPONDENT I i JUDGMENT Date: of last Order: 08/09/2015 Date of Judgment: 11/09/2015 BEFORE S. C. MOSHI, J I I The appellant was arraigned before Kiteto District Court for the offence of unnatural offence c/s 154(1) (a) and (2) of the Penal Code Cap. 16 Vol. 1 R.E 2002. The trial court found the appellant guilty and he was ·convicted of the charged offenc~ and sentenced him to serve a term of 30 years in prison. In addition to that the appellant was ordered to pay T.Shs. 5,000,0000/= compensation to the Victim. Aggrieved by both the conviction and sentence, the appellant I preferred at total of three grounds of appeal as follows:- 1. That, the learned trial Magistrate erred in law and in fact by not conforming with the provisions of section 127(2) of the Evidence Act, (Cap. 6 R.E. 2002). I 1 2. That, the learned trial Magistrate e red in law and in fact when he failed to evaluate the evidence on record and so arrived at a wrong verdict. appellant beyond reasonable doubt r 3. That, the prosecution failed to prove the case against the required by Law. The background of the case MaterialI evidence in respect of this case is gathered from the testimonies 9f PWl, Mwamvua Ibrahim, mother of the victim, PW2, the Victim whose name is Nasoro Athuman, PW3, No. F. 8875 DC Ally the investigator and PW4, Xaverine Rwamtoga the clinical officer who examined the victim. The victim (PW2) is a child aged 13 years old. The evidence indicates that PWl was confronted by one Nasoro who is the father of PW2 (Victim) who asked her where was she sending the child; because the child (Victim) had told his father that he was send to 1 collect Charcoal. However when the victim was asked where was he going, he said that he was going to thJ residence of Rasi (Fred) to play with computer. On further interrogktions and threats PW2 told them that he usually goes to RASI who asks him to bend at the bed and RAS penetrates his penis into his ~nus .. PW2 told them further that he had done so four times and RAS used to give him T.Shs. 500/= and that he used to promise him that he would give him more money. , Nasorro Athuman (PW2) testified that RASI used to call him at his place of work that is a store of soffer. He used to undress his uniform and held his mouth and carnallt knew him. He used to see things like Mucus at his anus and he sust~ined some injuries. On the fateful day the appellant (RASI) called him to his room there he saw a subwoofer a bed and a cqmputer. The appellant asked him to bend down onto the bed and penetrated his penis into his 1 anus. The appellant asked him to go again on the next day. On the 2 next day, while on his way to the appellant, he met his father who asked him where was he going, his father wasnt satisfied with his explanation, he decided to take him horn~. PW3; the investigator interrogated the victim and visited the crime scene. He saw the appellant's bedroom. In the room, he saw a subwoofer, a coach, a bed and speaker. He took a photograph of the scene (Exhibit PE1). The clinical officer, Xaverine Rwamtoga examined the Child ' (Victim) and prepared a PF.3 (Exhibit PEL2). He noted bruises at the I anus and when inserted the hand into the anus; the Muscels tones were abnormal, not intact and the hand came out with feaces. He I could not see the semens because three days had already passed since the time of commission of thk offence to the time of examination. Now coming to the urguments befoJe this court. At the hearing of the case, ~r. Mhalila State Attorney represented the Republic whereas Mr. Lawena Advocate appeared for the Appellant, Mr. Mhalila supported the appeal. In support of the appeal Mr. Lawenk urgued inter-alia that the I procedure to receive the child's testimbny was not followed. The victim (PW2) was aged 13 years. The court ought to have made I investigation to satisfy itself if the child understood the duty of I speaking the truth and if the child knew the meaning of oath. The court ought to have shown in the record that it did such investigation. 1 In this respect, he cited the case of Bab u V.R [2012] E. A, Vol. 1 at page 8. I He said that, the court did not do so. This is revealed at page 9 of the proceedings. I Mr. Lawena also pointed out that since PW2 was a child, hence ! the proceedings ought to have been corJducted in Camera, however this was not done. , 3 On 2nd ground he urged that there ;was no sufficient evidence to prove the offence beyond any reasonable doubt. PWl who is mother of the victim said that he reported the matter to the police after threatening him so that he should explain what had transpired she · said that she was called by the father of the victim between June and July who asked her where was she se~ding the child, because the child said that the was going to buy charcoal. After threatening him, the child said that he was sodomized and that he was given money. That the witness said between June and Duly while they were with the ' child all the time. / He submitted further that the victim said the office of his father 1 was just near to the office of the appella nt. If that was done, then he could have told his father. I He also contended that the court did not consider the defence. The appellant stated that he did not commit the offence; that the case I was cooked up because he was not in good terms with his co- businessmen and the kind of work he wa~ doing. . Furthermore, Mr. Lawena submittec;l that, the things which PW2 said he saw in appellant's room do not <lorrespond to the items seen by the investigator; as photographed. ; - Lastly he submitted that the PF3 jdo not prove that it is the accused who sodomized the victim. That, even it did not show that the act was done as the victim was examined after three days have passed. . I Mr. · Mhalila supported the appeal mainly on one ground. That I the voire dire examination was not properly conducted to determine 1 whether the child understood the duty of speaking the truth and if he understood that meaning of oath as reqµired under S. 127(2) of the Tanzania Evidence Act, Cap. 6 R.E 2002. He cited the case of Emmanuel Petro V.R, HC, Cr. Appeal NO 32/2009, Arusha Registry I 4 1 (unreported); also the case of Kimbute Otiniel V.R, C. A. T, Cr. Appeal No. 3/2011. He thus contended that the evidence was not properly received j in court. j That was it from the submissions. I have considered the I submissionf. I out rightly agree to the submissions made by the appellant's counsel as well as by the State Attorney; on the following grounds. / The trial court did not conduct the voire I dire test as required under Section 127(2) of the Evidence Att. The witness testified on oath, he is a child under the age of 14i The law requires that the · court should show on record that it has conducted the test and it has . I satisfied itself that the child understands the duty of speaking the 1 truth and he understands the meaninIg of oath; and where is intelligent enough to testify. What is recorded in page 9 of the proceedings do not show that the requirement was met. The cited I case of Kimbute Otiniel V.R, Cr. Appeal No. 300 of 2011, I (unreported) Court of Appeal of Tanzania', is relevant. The court held • I inter-alia, see page 76 that; where the~e is a complete omission by the trial court to address itself on sections 127(1) and 127(2) governing the competency of a child of tender years, the resulting testimony is to be discounted. As said earlier, that the court omittea to address itself. I thus discount the testimony of IPW2 which was improperly procured. The decision of the court was based on evidence of PW2. Having discounted the testimony of PW2, there is no other evidence which can support the conviction. j I thus ignore other grounds of appeal as this suffices to dispose of the case. I therefore find that there is no sufficient evidence to prove the case beyond all reasonable doubt. I consequently quash the 5 conviction, set aside the sentence and ! Order that the Appellant be 1 released forthwith unless he is held in prilson for other lawful causes. I Right of Appeal Explained. S. C. Mts!; JUDGE / 11/09/2015i, I,, Date: 11/09/2015 Coram: S. C. Moshi, J J For Appellant: Mr. John Lawena Holding ?rief for Severin Lawena Appellant: Present i Respondent: Mr. Mhalila, State Attorney !' B/C: Joy Kanno I Court I The Judgment is read on this 11 th day of September, 2015. s.c.~ JUDGE , I 11/09/2015 I I 6