20171020 TZHC Dodoma1

" . IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) DC CRIMINAL APPEAL NO. 45 OF 2017 (Original Criminal Case No. 20 of 2016 of the District Court of Kondoa at Kondoa) IDD HAM IDU @ IDD .... ...................................................... APPELLANT VERSUS THE REPUBLIC ....... ......................................................... RESPONDENT JUDGMENT 26/07/2017 & 20/10/2017 A. MOHAMED, J. The District Court of Kondoa convicted the appellant of an unnatural offence contrary to section 154 ( 1) (a) and (2) of the Penal Code (Cap 16 RE 2002) and sentenced him to life imprisonment. Against that decision he appeals on the following grounds. 1. That the trial court erred in convicting and sentencing the appellant based on the improper conduct of the voire dire examination. 2. That the trial magistrate erred in law and procedure for giving judgment without evaluating the evidence and ascertaining the reason for his decision. 1 ,. 3. That the trial magistrate erred for giving judgment on weak evidence adduced by the prosecution. The brief facts of the case according to the prosecution are that on 16/3/2015 at about 16:30 hours, in Mwailanje village, the appellant had carnal knowledge of the victim, Neema Mathias aged 8 years against the order of nature. Ms. Masai, for the appellant, in submitting on the 1st ground, quoted section 127 (2) of the Tanzania Evidence Act [Cap 6 RE 2002] that reads as follows: "Where in any criminal cause or matter a child of tender age called as a witness does not, in the opinion of the court, understand the nature· of an oath, his evidence may be received though not given on oath or affirmation, if in the opinion of the court, which opinion shall be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth." It was the counsel's argument that where a victim of tender age does not understand the nature of an oath, the court may allow him to testify without an oath or affirmation if he possesses sufficient intelligence and understands the duty of telling the truth. In support thereof, she cited the unreported case of Daudi Samwel v. Republic, 2 Criminal Appeal No. 109 of 2009, (CAT at Arusha). In concluding, the counsel was of the view the trial court contravened the law. On the 2nd ground, the counsel submitted the trial court failed to observe section 312 (2) of the Criminal Procedure Act (Cap 20 RE 2002) requiring judgments to contain the points for determination, to evaluate the evidence and give reasons for the decision. She lamented the judgment shows that "the issue for determination is whether the prosecution has proved the case beyond reasonable doubt." She argued that the learned magistrate just wrote the victim's testimony was corroborated by PW2 and PW3' s testimonies but he did not evaluate how PW 1 identified the appellant or how PW2 and PW3 corroborated the victim's unsworn testimony. The counsel lamented the learned magistrate failed to show the connection between PW2, PW3 or exhibit Pl with the appellant. Ms. Masai, in the course of submitting on the 3rd ground, emphasized the trial court convicted the appellant based on the prosecution's weak evidence. She clarified, the victim (PWl) aged 8 failed to explain how she identified the appellant at 15:00 hours since she could not tell the time. The counsel pointed out some discrepancies in the prosecution evidence. First, her mother (PW2) said she saw her daughter at 16:30 after the incident occurred; secondly, she could not explain the pieces of paper given to her by the Ward Executive officer, by the police at the police station or at 3 the Mrijo dispensary. Further, that she also failed to explain what procedure the doctor performed to her child at the said dispensary. Furthermore, Ms. Masai was discontented with a number of matters. She pointed out that PW2 said the rape took place on 16/3/2015 but PW3 said the victim was examined on 17/3/2015 and had said he did not find any fluid as she was already washed up (sic). The counsel said apart from PWl, no one else witnessed the rape. And that PW2's evidence was hearsay. She said the school uniform that PW l wore on that day allegedly soiled by faeces and blood was an important prosecution exhibits but it was not tendered thus weakening the case. The counsel queried why did the arrest take place 14 months after the incident? The rape was on 16/3/2015 but the appellant was arrested on 4/ l /2016. No police officer was called to testify why it took that long to arrest the appellant. It was her complaint why didn't PW2 explain the delay or why wasn't the Ward Executive Officer called to testify while he was an important witness. Ms. Masai also assailed the prosecution's non compliance with section 240 of the Criminal Procedure Act for failing to notify the appellant of his right to call the medical doctor to testify. It was the counsel's view, the prosecution evidence was weak and she urged this court to quash the conviction and set aside the sentence. 4 In resisting the appeal, Ms. Mwakyusa, learned State Attorney submitted on the 2nd ground by stating that the trial court complied with section 312 of the Criminal Procedure Act. She was of the view the trial magistrate analyzed the evidence of the 3 prosecution witnesses and his point for determination was whether the prosecution had established its case beyond reasonable doubt and was satisfied it did. The counsel said the reason for the learned trial magistrate's decision was PWl, PW2 and PW3's testimonies that convinced him to convict the appellant. In reply to the 3rd ground, the counsel submitted that there were indeed minor contradictions that cannot shake the prosecution case. She said as PW2 was illiterate she could not explain the pieces of paper given to her; but this is not a contradiction. And that it was not necessary for the Ward Executive Officer to be called as he only issued a paper for the victim to refer to relevant authorities. Ms. Mwakyusa, learned State Attorney, countered Ms. Masai's complaint of the prosecution failing to comply with section 240 of the Criminal Procedure Act by stating that it is only used where a doctor does not testify. She said the doctor (PW3) tendered exhibit Pl and the appellant did not cross examine him when he was afforded that opportunity. Nevertheless, Ms. Mwakyusa supported Ms. Masai's argument that the appellant's identification by PW l was not proper. She said 5 PW 1 just said she met lddi and thereafter they went to a maize farm where she was sodomized. And further that she had failed to describe the said lddi, his appearance, his attire nor was there any dock identification. The counsel's other reason for supporting the appeal was the failure by the prosecution to prove the victim's age. She said the proceedings do not show when she was born. Neither her mother nor any other witness proved her age. For these reasons, she supported the appeal. After hearing the parties and having examined the trial court's record, I will now consider the appeal. In regard to the 1st ground complaining of the trial court's conduct of the voire dire, I think Ms. Masai for the appellant was unaware of section 26 of the Written Laws (Miscellaneous Amendments) Act No. 4 of 2016 that amended section 127 of the Tanzania Evidence Act (Cap 20 RE 2002) by substituting subsections (2) and (3) with subsection (2) that reads as follows: "(2) A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not tell any lies." 6 In view of the above amendment, Ms. Masai's argument is misconceived being unsupported by the current position of the law. I am satisfied the learned trial magistrate observed the new requirements of the provision as is seen in the proceedings where PW l promised the court she would tell the truth and would not lie. Consequently, the ground is devoid of merit and is dismissed. As to the 2nd ground, I am in agreement with Ms. Mwakyusa's view, the point for determination, as raised by the trial court, was whether the prosecution proved its case beyond reasonable doubt. The learned trial magistrate then analyzed the evidence and was satisfied the evidence of PW l, PW2, and PW3 as well as exhibit Pl proved the case beyond reasonable doubt. In a sense, I think the anqlysis W<:JS brief, but it satisfied the requirements of section 312 (2) of the Criminal Procedure Act (Cap 20 RE 2002). I also agree with Ms. Mwakyusa' s observation that section 240 of the Criminal Procedure Act was complied with as PW3, the medical doctor testified in court and the appellant had the opportunity to cross examine him on the contents of exhibit Pl. This ground is also bereft of merit and I dismiss it. I now turn to the 3rd ground. As was lucidly stated by the Court of Appeal for Eastern Africa in R v. MOHAMED bin Allui ( 1947) 9EACA72. "In every case in which there is a question as to the identity of the accused, the fact of there having been a 7 description given and the terms of that description are matters of the highest importance of which evidence ought always to be given, first of all, of course by the person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given." After pondering over PW l 's testimony on the identification of the appellant, I am of the view her failure to describe the appellant has cast some doubt on the prosecution case. PWl, as submitted by both counsels, did not tell the court whether she knew the appellant prior to the incident. She did not describe the appellant's features such as his skin complexion, height or the clothes he wore on the material day. In view of the above statement, I am satisfied PWl did not properly identify the appellant on the day of the incident. Moreover, the prosecution failed to establish PW 1's age that is requisite under the law. In a statutory offence such as the instant one, proof of age is crucial in determining the sentence since subsection (2) of section 154 of the Penal Code that the appellant was charged with stipulates a sentence of life imprisonment of an offender where the offence is committed to a person less than 10 years of age. From the record, PWl 's age was neither proved by a birth certificate nor the testimony of a parent. This question was 8 addressed ,n the unreported case of Andrea Francis v Republic, Criminal Appeal No. 173 of 2014 as stated by the Court of Appeal: " .. .it is trite law that the citation in a charge sheet relating to the age of an accused person is not evidence. Likewise, the citation by a magistrate regarding the age of a witness before giving evidence is not evidence of that person's age" See also Emmanuel Kibona and Others v. R. (1995) T.L.R. 241. I think this was an oversight by the learned trial magistrate. In concluding, I find merit in this ground and sustain it. In the final, I quash the conviction and set aside the sentence. The appellant is to be freed forthwith unless held for another lawful cause. Order accordingly. A. MOHAMED JUDGE 20/10/2017 The right of appeal explained. ~ A. MOHAMED JUDGE 20/10/2017 9