20160921 TZHC Dodoma

I IN THE HIGH tCOURT Of TA.NZANIA I. AT DODOMA (APPELLATE JU RISDICTION) 1 I (DC) CRIMINAL APP~Al NO. 39 Of 2013 I I (Original Crin1inal Case No. 312 lof 2011 of the D1/strict Court ol Dodoma Distridt at Dodoma) . I JUSTIN ZEBEDAYO NYABULA ....... ~ ..................... ., ....... APPELlANT vEfus THE REPU BlIC .......... ~ ...... ·..... ~ .~:.~-+~ .... ~-~ .... ~ . ;~:.: ~ ~?:~·~'~. R.f.SPO~~ D'ENT . · . ;1 ·:. >•· . i JUDG~ENT --.-.• I . 2.9{1 & 21/9/2016 ' I • I Before the District Court of Dodoma I appellant herein stood charged I , wH:h the offence of Unnatural offence contrary to section 154 (l)(a) and r\2) of the Penal Code [CAP 16 R_.E. .. . . 2002],· •·. . - where it,I vvas a!leqed that lr1 ~ unknown date in July, 2011 at Nala vH!age within the Munidp,1Hty and . :,- ·• . _·. ·. I .. .· ·•·. ·.·, ,·•;• ·, . Region•. of Dodoma appellant did hav12 unlawful carnal km1wledge 'of one I . YOHANA JOHl\l a boy aged eleven (U.) years against the order of VJture. 7 I . 1·.,, ' •·, . i i ' -~- . \Nhe11 appellant denied the charge a total of ;four witnesses were brought to prove the same and their Jvidence is recapitulated hereunder; i I . I. I f I l .· ' i On: 18/7/2011 JOHN MAKUYA, PW2 appellant's r~lative left his Nala ,! I . . residente under the care of the appellant while himself and wife went to . . ' . . ' ·, . .• '.J ·. '• ' . ' .. ·, Michese. area. At home appellant was left together wl}h the complainant YOHANA Jd°HN, PWi. That, in' the abs~nce of PW2 and' wife,th~-~ppellarit . . . . . . . . . . . . '. . . . I·. . . . ·.. ,.· .·· . who was sleeping together with Pw·1 · did sodomise him· by inserting his I , .anus. and when his moth~r returned. h.e r~ported. th~, incident ' . penis 'i'n the i I to her. • " . I i ·;_·, However, it was until PW2 returned home on ?0/7/2011 when he . ·reported the. incident to local area leaders. Whereas) the appellant was f' . i anested on 01/8/2011 , . when '.he .. went to .PW2's. , home ' ' to 1' . take , his personal. ,, , . effects'. PVV.1. v,.,a~.sent to Dod,oma G~~eral_ Hospi,tal q:n 2~8/2011 b_~t w<?s directed to go to Makole Hospital and since days h~d passed PW1. was • • • ' 1 : • directed to take blood test. Dr. TUMSIFU ZAKARIA, PW4 who· examined PV✓ l · said he found I bruised and extended anus and concluded that P\Nl had ' been sodomised. . . ' j The PF3 that he filled was admitted in cou1t as exhibit P1. I . I _ 1• • : •· t.astly,· upon. arrest appelia11t · was- interrogat~d . by No~ ·D 76_43 Detective :Corporal. POLYFATION, PW3 but he denied -the allegations. 1 . I I I I .. . _, . . . . . - r ~•' In his defence the appeilant did· nof deny' that1he -was· 1eft at PVV2~s 1 home to ·1ook after but denied that he . slept toaethe ... .: l r with . P\iV1. That, ./'' . he ~ i ' ,,, slept in that house togeth~L with PV\/1 and OIJ.e ELIAS and ·was .wo'ndering,: : - · ~ ~ ~~ ! ~ .·• . ' -~ . ':. ' . ,. ·~ ~ ' I- . . .1 I why he was charged alone. I And on. 18/7/2011 he slept in a different j house. He complained that he was ·not medically exarr.ined to !ink him with I alleged offence. Lastly, he lamented ,;that these allegations were fabricated since he had grudges with PW2 as he had relationship with his wife (PW2's • • I • wife). Tile appellant did not call any other witness. . ... ' : ~ ·. . ' . . I . ! ' At the end of the trial it was found that the case against the I appellant was proved beyond reasonable doubt, he was· convicted and I sentenced to twenty (20) years imprisonment. I Upon being aggrieved by trial c_ourt's decision the appellant filed this ; appeal over six (6) grounds of. appeal which· · raise ·five •grounds of cornplaints as foHows; II . t That, the trial court erred i(1 law when it failed to conduct voire dire to PVv'l in accordance with section 121 (2) of the Evidence Act [Cap 6 R.E. 2002]. 2. I hat~ the trial court erred . toI . convict the appellant while the time upon which the incident occurred and medical examination was . I. not linked. ' ' 3. That· no village leaders lupon tvhom · incident -wa.s·· allegedly · reported were called to testify. I I I 4. That, PIN4s evidence relied on presurnptlon that something s penetrated il1to PWJ anus. I I 3 '' 5. That, the trial court erred in law and fact to convict the appellant i while the prosecution case was not pro~,ecl beyond reasonable doubt. ' ' - When the appeal was brought for hearing the qppellant ·opted to let the respondent Republic to respond to his grounds of appeal before he said anythin_g else. , !hus, it was Mr. , Sarara learned, State Attorney: _who appeared to argue the appeal on behalf of the respondent Republic where he opposed the same. I As regards to the first ground of appeal Mr. Sarara argued that the trial court conducted voire dire examination in respect of PVVl and was I satisfied that he had sufficient intelligence to testlfv and understood duty of speaking the truth and thus PV\/1 only failed to mention his age. It was Mr. Sararn's contention that the law under section 127 (2) of the Evidence Act {supra) had been complied with. I Secondly, it was submitted on behalf of the respondent that PW4 had provred that PVV1 was sexually attacked which evide~ce was corroborated by PF3 exhibit Pl. However; , Mr. Sarara !earned State A.ttorney did not speclfical!y respond to, the third and fourth grounds of appeaL, · I In relation to the fifth ground, of appeal it was Mr. Sarara's contention that there was enough evidence to prove the case ~gainst the appeHant I 4 . ' .I -· i from ·PV\/2 who·· said he had left him t~ take cate • • • cf ~l~; ·hou:se :and PV~i. • I I • • That,_·PWl's ev,idence being sufficient to convict as per·- section 127 (7}of the tvidence Act (supra) but wa_s corroborated by PVV2, PW3 who said app~l!ant ·had confessed allegations, P\N4 and PF3 e~hiblt Pl. Moreover, PW1 did not say some other people came to the hquse apa1t from the appell:ant. .. -For the foregoing Mr. Sarara was of the ~iew that -conviction agc;1inst the ·appellant was properly grounded. As for the sentence Mr. Sarara. argued that ft ~11as an error to cite both -sub-sections (1) (a) and (2) of section 154 of th~ Penal Code .(s.upra) sine~ the riglJtf~I. one was su~-SeftiQn CJ) (a) .and ,t~~-),righ~ftJ! -~~:ite_~ce ' \i\':~S:. ,.thJrfy_ (30), .. _,years ·-· ·- imprisonrne.nt. . . .He· was of . th~. yi~~'v r ~b~t .• the .. :n:,ix;-up . . in. the. chargi,ng -·-. . s~ctions did not occasion any injustice sin,ce ' . both. sub-sections . . ; . . .. . . I . ,pr9\1id~Jor.. ,' ,. punlshment though to two different circ:um~tances. , i In his further reply the appel1ant argued thatrle was not medically I . • I examined :to- ascertain if he had any disease. That, although PW2 asked 1 him and one ELIAS SHAYO to watch over his house· but the .latter was not charged. That,_ . . he never slept \"fith.. PV✓l and PW2 '• .. .vvks infqrmGcL. . ' . that- th~. " ,: ; ' incidept . . ··- occurr~d three_ days . . earlier. _Lastly, th~ appeflar:,t •.. . ' . ;co111pi_9i17e~ .t~at. ..... ' - . ., .•. the Police threatened. him hence did not explain himself properly. , ,, • •· . '.'.. • , '' .' • ' • . • ,. I· . ', ., , ' :• ~'- ,_ ., •, I ' ' I I. i · ··Foii0wing parties'·. contending:. -submissions thtS.: court· is required .to decide --whether the- appeal has merit Tb dec!de this· Issue this c:ourt will deljberate the grounds of appeal seriatim as follows; I 5 ,, .1 . In relation to the first ground of appeal the fact that P,N1 failed to mention his age is one of the factors to show that he had no sufficient intelligence to rationalize things. Naturally, a chHd aged over ten years ' would not fail to know his age. And although t~e trial c?.urt opined that PW1 had sufficient intelligence and understood the duty of speaking the truth the questions asked did not sufficiently prove that PW1 had such intelligence. Also, even if the trial court opined that PVVl knew the duty of speaking the truth but he only responded "yes" when was asked that question and no more. PW1 was not also test?d if he understo9d the nature of an oath but the court allowed him to take oath before he testified, PWl was only asked what his religion ~ras . This trend of procedure clearly shows that the trial court did not conduct voire dire as properly required . in law as it ought to .test PW1's intelligence and whether ;·, his evidence could be received and whether he understood the. duty of speaking the truth as it is provided under section 127 (2) of the Evidence I Act (supra). Thus, the effect of non-compliance renders PW1's evidence to remain on record and be subjected to usual scrutiny like any other in the case of KlMBUTE OTiNIEL V. evidence. I get support in this stance R/ Criminal App~ai No. 300 of 2011/ Court of Appeal of Tanzania at Dar es Salaa1n (un~eported). Now, whether or not PW1's .evidence is credible wiH· be r~ubject of • I ' •• discussion in the coming grounds of appe(3I. The first ground .of appeal thus succeeds. 6 r I I As regards to the second ground of appeal this ,c0urt is of the opinion that·.given th'e delay to have P\/'tl examined from alle~ed date of incident hettveen 18/7/2011 and 20/7/2011 t() the date ofexanJination 02/8/2011 it cannot be said conclusively that whatever was found in PWl 's :Private parts was result of. the alleged incident. , PW4 did not explain this gap and whether the bruises and extended anus he said he deJected with PWl was I i a result of the incident on the alleged -9ate. ,. . ' . I I This doubt is heightened by PW2's evidence wren he said that on .. • I . 02/8/2011 when they went to the. General Hospital 'they were told that since 111any days had elapsed what,they ~oul9 dq. y.ta~ _only to have blood . . ... ' . ., . . . -!. ·-· . . ·- ; . . _-· . -. . .. • .. ,·· test~.. ,that is wh~n. they went to Makole Hospital. The. tr,ial court: vvas not tq_!~{\thet~er blood ~est was done and what the result~: were~ ·Th;s. .grou.nd ... '· : . ~ .. ' .. ·, •' ._; .. .. .~ ' ' ': . . ... . :' : . ' ' \ of-~ppeal thus succeeds. I . I ··•.The ·appellant complained in the. third ground o~. appeal about .failure of village leaders to testify. The State Attorney did nqt respond to this but this court is of the considered view that village leaders to whom• PW2 , 1 I " I alleged . ~o have reported the incident on 20/7/.20~ 1. ~haul~ haye. testified . .. . I . . . . to ~lear . daub~ . '•' . as. to . whether . . this ,..,incjdent occurred a_s. alleged, more ' . '. •. . . ' so .sfr.ce' _, the. . . . . . report :. •. was sent . . tq police belatedly. .. . ·· .... ·. !Thus, I· this . ..failure . ... for ; loc_at: "· ..... · a're? .. ·.. Jeade,~s ' . ·.....~o •'. .testify . adversely . . ', ,. ' affect~d ' . .prose~~.rtiQn . i' ..case .' .· :{see .' ..AZIZ ~4~ffe4.t..~!Jlj l(. . R{!99..JJ T.LR 71)~ The third growno. 9f _app~al h?S .Q1erit. ., • • '. • ' : ' • • ~. , \ • : • • , • • ,. 1 , • • • • • • • r • This court further finds the fourth ground of a~·peal with merit since PW4.whosaid.did find bruises in PVVlfsanus did not show that in-his report • • ' • • . • .' , . • . ' •. : •. ' • • I .• • . ,, , • • • •~ • ,' ~-1 .. ! ' . . , .. :· . ·.: ; PF3, exhi_bit Pl. He also· said. he_ .~resumed sornet!1ing pe'!~tr~ted into y . · · .(:,; ,;,. wifl,i';•, ·• ·. ... ''7;"l. ·. ' •••;'/ .:·, t i•,}~1:·Ji!:1»1.~\ tt~~.., 1 ~-: -~d:J~l' l ~-, :rt':.::-.-,,_:·~l~i"~ • ', _1/· ' ,_1 I I i . ! PW1's anus but in his report he said it was !Denis which us·ed to inflict .1 injuries on PW1's anus. And he conduded that ;sodomy had been I committed on PWl but there was no medical results ' to orove it. No . laboratory ex~mination was done to PW1 or that he wa~ found with sperms ' ' . . ... ·• ',,. •.' . ·, in that way. Thus, to say that it was penis that was used to penetrate into -.·· . . ,,_.- ·.:· .· ..• _.·_.' .· . '."· .· . ' . . ·.. · ._. : ·.· . '.-. ·. ·. . . ' PV\fl's ·,.. ·,.· anus was . being . judgmental. . What PW4 was . s~pposed . . to report is ~ .• . . . the nature of the object used to inflict the injuries ;and not specifically . I mention it as he was not there when tile injuries were being inflicted. Lastly, this court is in agreement with the [ appellant that the . I -prosecution case was not .proved beyond reasonable: doubt against .him. ; ' • • ~ ' ·, • • ' '• ' • • -,. • • - •• • • I • This court has been wondering as to why P\A,Jl's .m9ther did rot. . ' ,• . '"y:·. te$~ify . ..' .. . ·. ' .. . . ,: ·.. . ! : .. . . .· •• sin_ce PWl said he first reported the incident to her. l\$ruled out)n respect • ~ , : • ' ~ ' • • • • ', •, • . • . • .,- . I, . •. to. viJlage leaders, PW1's mother wa~ crucial witness:to. corroborate PW1 •. • • \ • • • .. <!· • and PW2's evidence~ ·:Also~ while PWl said one ELIAS \Vas his brother /whom appellant ·said was:-'alsotogether . caring PW2's home but PW2 denied to I know him at all. I I Moreove1\ de!ay to report the ··incident at the pplice creates ·another I I doubt. as to whether the same really happened. As· to how·one:-can keep I . . I . quite . for· atiout two weeks, . vvith- serious -allegatiot1s is ;dif.fkult to compteheqd-. · Coupled with the for,egoing . is. -the; -pelay . .:.,t4t <anesf:,the appellant. · The- incident allegedly.-. occurred- betvv¢~n · t8/7/40t.1. :tmd 20/7/2011 and ·PVV2 got information on 20/7/201'1 bqt no-effort-was done ' to find and arrest the suspect, appellant until O1/8/20'11 •when he was said ' i~ -_ ,. C:/- ,.,., ' ; ..·.: .. :~,,;_!, ~ . : . to ,go ,t? yvv2'~ home_ to colle~t hi_s_p~r~ijnal effects .. r.~e evi~ence _did not ' I 8 . ' .·. ', ' -:i '_' . ' say appellant was traced anyhow at his knovvn address and was not found taking into account that he is related to PW2. Thus, delay to arrest the appeHant adversely impacted the prosecution case (see IBRAHIM SHABAN! & SHABAN/ ALL Y'KALULU V. R, Criminal Appeal No. 110 of 200?, Court of Appealof Tanzania (unreported). ·1 • I And lastly, whereas Mr. Sarara learned State Attorney contended that appellant admitted the allegations upon interrogation, the evidence on recoid by PV\/3 is that the appellant denied the allegations, However, had appeUant admitted the allegations his confession would have been recorded . . . and tendered in court as exhibit. ' Consequently, in this case not only that sodomy was-not proved onto PV\/l but· it was not proved that appellant had anything to do ·with the allegations, if any. Therefore, this appeal has merit and is hereby allowed, conviction quashed and sentence is set aside. - I . - . . Finally, it is ordered that the appellant be released from prison unless he !s otherwise !awfully held. ·<31~ . . JUDGE .21/9/2016 p I I • .. .,.,. I. ·_. _.,) ·' ·. I, ~ ! ,' ,_·, di