kelvin mkunga vs republic 2023 tzhc 21294 9 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY)

AT IRINGA DC CRIMINAL APPEAL NO. 56 OF 2022 (Original Criminal Case No. 1 o f2022 o f the District Court ofMufmdi before Hon. S.E Kyungu, RM) KELVIN MKUNGA ............................................................. APPELLANT

VERSUS REPUBLIC ............................................................. RESPONDENT

JUDGMENT 2&h May & $hAugust, 2023 I.C MUGETA, J: The appellant challenges his conviction and sentence for rape contrary to section 130(1), (2)(e) and 131(3) of the Penal Code [Cap. 16 R.E 2019] on several grounds. Those grounds are firstly, that the evidence of the victim being of a child of tender age was illegally recorded as the requirements of section 127(2) of the Evidence Act [Cap. 6 R.E 2022] were not fully complied with. Secondly, that important witnesses were not summoned. Thirdly, that the clinical officer who examined the victim was not qualified as a medical practitioner and fourthly, that the evidence of the clinical officer (PW3) contradicts that of the victim and her mother (PW2) on when the victim was examined. Page 1 of 7 Generally, he complains that the offence was not proved and he repeated the above complaints when argued the appeal. I shall discuss those complaints against the evidence on record. Majid Matitu learned State Attorney submitted that PW3, the clinical officer, is qualified to do medical examination. I agree with him. it is now settled that clinical officers are qualified to do medical examination including filling in PF3s and post mortem examination reports. This was the holding in Ridhiwani Nassoro Gendo V. R., Criminal Appeal No. 201/2018, Court of Appeal - Dar es Salaam (unreported) at page 16 and Charles Bode V. R., Criminal Appeal No. 46

of 2016, Court of Appeal - Dar es Salaam (unreported) at page 17 respectively. The complaint on the qualification of PW3 which is ground 4 of appeal has no merits. Section 127(2) of the evidence Act [Cap. 6 R.E 2022] requires that evidence of a child of tender age ought to be recorded upon her making a promise to tell the truth in case of unsworn evidence. The appellant is of the view that this section was violated while Mr. Matitu holds a different view. The evidence of the victim is at pages 4 - 5 of the proceedings. The victim said she was aged 8 years by the time she testified and her mother (PW2) gave similar evidence. Therefore, she was a child of tender age covered by the said section. On record, after the victim introduced herself, this is what is recorded Page 2 of 7 "Court: This court interrogate the witness and she repiy as follows:- Witness: I promise that I will tell the truth only and I won t lie Court: Section 127(2) o f the CPA [Cap. 20 R.E 2019] Complied with. Sgd. S.E Kyungu - RM 21/2/2022" In Godfrey Wilson V. R., Criminal Appeal No. 168 of 2018, Court of Appeal - Bukoba (unreported) at pages 12 - 13 the manner of examining a child of tender age before he/she gives evidence was described. That simple question ought to be asked to the witness to lead her/him to state whether he/she shall tell the truth and not lies. In this case this procedure was complied

with except that he questions and answers involved were not disclosed. In, my view, the questions and answers ought to be on record as they help appellate courts to assess if the conclusion made is fair and supported by the process. The above irregularity notwithstanding, I am satisfied that the trial magistrate interviewed the witness who finally promised to tell the truth. The irregularity is curable under section 388 of Page 3 of 7 the Court Procedure Act, therefore, the evidence of PW1 has probative value. The complaint in the first ground of appeal has no merits. In the evidence, the victim testified that when the appellant held her hostage and pulled her into banana farm where he ravished her she was with one Rozana. Indeed, this Rozana was not summoned to testify. The same with the person who issued the PW3, hence, the complaint in the 2nd and 3rd grounds of appeal. The mother of the victim (PW2) testified that when the incident was reported to the village leaders they summoned the appellant where he confessed to have ravished the victim. None of those village leaders was summoned to testify on his confession, hence, the complaint in the 6th ground of appeal. The learned State Attorney argued that those witnesses were unnecessary as under section 143 of the Evidence Act [Cap. 6 R.E 2022] no particular number of witnesses is required to prove a particular fact. In his

views, those witnesses were not at the scene of crime, therefore, their evidence would be hearsay. He cited Franci Eliud @ Mnyamwezi V. R„, Criminal Appeal No. 82/2021, High Court - Dar es Salaam (unreported) at page 10 where my learned sister justice Masabo held that no adverse inference can be drawn from failure to call such a witness whose evidence would have certainly been discredited. With respect, the learned State Attorney have acted on a misdirection. While I agree that hearsay evidence has no value, it is not Page 4 o f 7 true that the evidence of Rozana would have been hearsay on how the appellant restrained the victim; Further, the evidence of the village leaders wouldn't be hearsay as far as the appellant's confession before them is concerned and the evidence of the police officer wouldn't be hearsay as to when the incident was reported and a PF3 issued. It is my view that considering the age of the victim and the fact that the appellant was not found in "flagrante delicto" the chain of events ought to be watertightly established. It my further view that the evidence of Rozana was important to prove that the appellant grabbed the victim in her presence. The evidence of the village leaders would have corroborated PW2 in that the appellant confessed. The evidence of the person who issued the PF3 was however not important. The mother said the victim mentioned the

appellant immediately upon meeting her. The evidence of the victim is the only evidence which points the accusing fingure to the appellant. Under section 127(6) of the Evidence Act, the court can convict on the evidence of a child if she/he is found to be credible. In his defence the appellant denied the offence. It is my view that under the circumstances of this case it was important that Rozana would have been summoned to support the victim on how they met the appellant. The village leader also ought to have been summoned to testify on the appellant's confession. Page 5 of 7 I understand PW1 and PW2 are entitled to credence and ought to be believed. However, the broken chain of events on how the appellant was arrested and treated from when he was summoned to the village office on 4/1/2022 to 13/1/2022 when he was arraigned in court creates doubt on PWl's identification of the assailant. It is settled that evidence of visual identification ought to be water tight as is the weakest form of evidence. At least an identification parade ought to have been held. I would add that evidence of visual identification involving a child of tender age ought to be tighter. In his case, the evidence of Rozana and the village leaders were important to prove that the identification of the appellant by the victim was not mistake and the appellant, indeed, confessed to the village leaders. I am

live to the fact that the victim testified that she was familiar with the appellant. Her mother said that they are neighbours and children are used to him. However, at one point in her evidence she also said:- "ninamfahamu mshtakiwa anaitwa Kelvin Mkunga, huyo Kelvin Mkunga siyo mwenyeji sana kijijini kwetu". This evidence, considered in the light of the age of the victim, raises reasonable doubts on the identification of the appellant as the culprit. The Page 6 of 7 trial court ought to have considered the question of identification in its decision which it didn't at all. For the foregoing, I find merits in the appeal. The appellant's identification is not water tight. He was wrongly convicted. I quash his conviction and set aside the sentence. I order his immediate release unless otherwise lawfully held for another offence. I.C. MUGETA

JUDGE 9 / 8/2023 Court: Judgment delivered in chambers in the presence of the appellant and Simon Masinga, State Attorney for the respondent. Sgd. I.C. MUGETA

JUDGE 9 / 8/2023 Page 7 of 7