20180718 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 14 OF 2018 (Original Criminal Case No. 8 of 2018 of the District Court of Bahi at Bahi) MUSA JUMANNE @ MTANDIKA ..............................................APPELLANT VERSUS THE REPUBLIC ..............................................................RESPONDENT JUDGEMENT Date: 9/5/2018 & 181712018 A. MOHAMED, J. The District Court of Bahi convicted Musa Jumanne © Mtandika of one count of an unnatural offence contrary to section 154 (1) (a) of the Penal Code [Cap 16 RE 2002] and sentenced him to 30 years imprisonment. 1 It is pertinent to provide the background facts leading to this appeal. It was the prosecution's case at the trial that on 29/1/2017, at Bahi Sokoni village in Bahi District within Dodoma Region, in broad daylight, between 15:00 to 16:00 hours, the appellant had carnal knowledge of X; a girl aged six years against the order of nature. The prosecution alleged, on that day, the victim was sent to fetch water from a well but she returned later • crying walking in pain with her feet apart and having a heavy odor of faeces. Consequently, her aunt named Hadija Lusian Sabaya (PWJ) inspected her private parts and discovered semen and faeces in her underwear and her anus was bruised. X, the victim, told her, that one Musa had inserted his black member in her anus. Lusia called Tatu Ally (PW3) to witness the same. She was taken to the police where one WP Detective corporal Nelly (PW6)washed her private parts before sending her for medical examination to a medical doctor Mbacha (PW6) who found bruises in her anus and faeces oozing from her anus. On these facts, the appellant was convicted and accordingly sentenced. He now appeals against both conviction and sentence on three grounds. First he alleged the voire dire examination of the child victim was not conducted properly, secondly; that the prosecution's evidence did not prove the offence, and third that the facts disclose the victim was raped but they do not reveal the perpetrator. 2 At the hearing Mr. Kalonga learned counsel represented the appellant. Ms. Magesa, learned State Attorney, appeared for the respondent Republic. Mr. Kalonga averred he would argue on the 1st ground but consolidate the 2nd and 31d grounds of appeal. In the 1st ground, the counsel complained the trial court failed to comply with section 127 of the Tanzania Evidence Act (Cap 6 RE 2002) as amended by section 26 of the Written Laws (Miscellaneous Amendments) Act No 2 of 2016. He relied on the unreported case of Jackson Davisv R, Criminal Appeal no 127 of 2005, CAT which held before a child's evidence is recorded, the court has to satisfy itself of the following; (a) Whether a child of tender years is possessed of sufficient intelligence to testify truth (c) Whether the child knows the meaning of an oath. Mr. Kalonga maintained the trial court failed to observe the above test before swearing X and her testimony was rendered unsworn. And accordingly if has to be corroborated. He argued the trial court thus wrongly relied on the testimony a single eye witness. 3 In opposing this ground, Ms. Magesa argued the voire dire examination was properly done. She said X reported the incident to Hadija Lusian Sabaya (PW1) that Musa, the appellant inserted her penis "dudu jeusi" in her anus. PW1 realized it referred to the appellant's penis. The counsel went on to aver, the 2016 amendment to section 127 of the Tanzania Evidence Act states where a child gives unswbrn testimony, that child must tell a court it would tell the truth and not tell lies. The child was sworn after she stated she would tell the truth alone. In concluding on this point, she was of the view the aforesaid amendment to section 127 of the Tanzania Evidence Act takes care of testimonies of children, whether sworn or unsworn testimonies. In rejoining, Mr. Kalonga argued section 127 of the Evidence Act provides a child witness may give evidence on oath and in this case the child gave it on oath and thus corroboration was needed. Ms. Magesa argued X's testimony was corroborated by Erasto Mbiche (PW5) the medical doctor who, in his examination, discovered bruises in X's anus. And in addition, she said the appellant did not object to the admission of the PF3 report when it was tendered by the prosecution in evidence. It was her conclusion; the appellant had thereby admitted the fact. The counsel further asserted PW1 saw semen and faeces in X's anus and called Tatu Ally (PW3) to witness the same. Ms. Magesa argued PW1, PW2 and PW3 therefore corroborated X's testimony. 4 LI In rejoining, Mr. Kalonga argued the PF3's reliability is the crucial issue and not its admission. He also insisted the time of the incident was of essence. With respect, I disagree with Mr. Kalonga's argument on this ground; His proposition is based on the erstwhile position in regard to the conduct of a voire dire examination that can In 1hé dè é fbèemay - Daati v R (2005)TLR 132 where the Court of Appeal held that; "It is settled law that the omission to conduct a voire dire examination of a child of tender years brings such evidence to the level of unsworn evidence of a child that requires corroboration" However enactment of section 26 of the Written Laws (Miscellaneous Amendments) Act No 2 of 2016 that amended the previous position. It came into force on 8/7/2016 and provides as follows: "S. 127 ('2) A child of tender age may give evidence without taking an oath but shall, before giving evidence, promise to tell the truth to the court and not to tell lies." 5 il The above provision applies to the present case as the rape was on 29/1/2017. I will reproduce the relevant passage at page 12 of the proceedings where the learned trial Court Magistrate swore the victim witness in these terms: "Court As is a child below 12 years, witness is sworn in PW4: I will tell the truth alone" PW4 Win frida Mathias 6 years sworn and states..." In view of the above, I think, in essence, the learned trial magistrate broadly complied with the requirements under section 127 (2) of the Law of Evidence Act. In addition, I am also in agreement with Ms. Magesa that the Court of Appeal has on a number of occasions upheld convictions on the sole evidence of a Appeal No 120 of 2011, (unreported, CAT at Arusha), Mussa, JA observed that: "AS to the current position with respect to sexual offences, it is a rule of practice, not of law, that corroboration is required of the evidence of a victim of a sexual offence but; the rule does not preclude a conviction based on corroborated evidence if the court N is fully satisfied, on the terms of section 127 (7) (TEA) that the victim told of nothing but the truth" In any case, even in case the victim's testimony be considered unsworn, I am satisfied there was ample corroboration of the rape in testimonies:of PW1, PW2, PW3 and PW6. X's testimony was further corroborated by PW5, the doctor who, in his examination, discovered bruises in X's anus. The PF3 was admitted without the appellant's objection. Moreover, I agree with the trial court's finding the victim was a reliable witness and I am satisfied the victim named the accused person immediately after the incident in line with the Court of Appeal's principle in Marwa Wangiti Mwita Vs. The Republic, where the Court made the following observation:- "The ability of witness to name a suspect at the earliest opportunity is an all important assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to enquiry." In addition, as averred by Ms. Magesa, I take credence in PW1, PW2, PW3 and PW6's testimonies who saw semen and faeces in X's 7 underwear as well as bruises in her anus. I therefore find the 1 sf ground of the appeal bereft of merit and it is dismissed. In the 2nd and 3rd grounds, Mr. Kalonga insisted the prosecution failed to prove its case beyond reasonable doubt on its weak and contradictory evidence. He assailed the charge sheet for failing to disclose the time when the offence was committed. He pointed out that Hadija Lusia Sabaya (PW1) said the incident took place at around 15:00 hours, Nyamizi Saidi (PW2) said 16:00 hours whilst X said it was at noon. In reply, Ms Magesa retorted the charge of an unnatural offence does not contain time as an ingredient. And therefore the alleged contradictions pertaining to the time of the incident mentioned by PW1, PW2 and PW3 are immaterial. . It was her argument; the key question was that the victim was anally known the victim before she was examined by PW5, the counsel said even if PW6's evidence is expunged from the record; the rest of the evidence suffices to convict the appellant. She averred PW5 was an expert witness and this Court is not bound by his evidence. Ms. Magesa further said the trial was adjourned on 11/9/2017 as the child was not composed but was able to testify a month later. Regarding Mr.' Kalonga's allegation that the prosecution did not establish whether the victim was raped in the vagina or anus, Ms. Magesa replied PW1, PW4 and PW5's testimonies established the victim was anally known contrary to section 154 of the Penal Code. She reiterated the victim told the court what the appellant did to her and the prosecution established its case beyond reasonable doubt. Mr. Kalonga's next complaint was whether Erasto Mbiche (PW5), the medical doctor could have had properly examined X after WP Nelly (PW6) had washed the victim's genitals before sending her to PW5 for the examination. It was his view, after PW6 washed the victim before the medical examination, the testimonies of Lusia (PW1) , Nyamizi Saidi (PW2) and Tatu Ally PW3's of observing faeces and semen on the victim are discredited since PW5, in his examination, did not mention seeing semen or faeces. He only mentioned the victim's anus had even if PW6's evidence of cleaning X after the incident is expunged, the remaining evidence sufficed to convict the appellant. She also said the Court is not obliged by PW5's expert evidence. Ms. Magesa said X could not testify on 11/9/2017 as she had been crying and the proceedings were adjourned as advised by the Social worker in Court. But said X was able to testify a month later. On this point, I think there were no contradictions in the prosecution's witnesses. PW1, PW2 and PW3 saw semen and 9 faeces in X's underwear and bruises in her anus immediately after the incident. When X was taken to PW6, she inadvertently washed her before X was taken for the medical examination by PW5. Therefore, PW5 did not observe semen but he saw faeces oozing from the victim's anus. PW6, seen above, had washed off the semen and faeces from the victim prior to the examination. Moreover, PW5 observed X's anus had bruises. I am therefore satisfied the victim, PW1, PW2, PW3, PW5 and PW6's testimonies were consistent. I accordingly find this argument devoid of merit and it is rejected. In addition, Mr. Kalonga argued it is unclear whether X was carnally known or sodomized. He pointed out a page 16 of the proceedings, during cross examination by the appellant, it is shown the victim wasraped as well as at page 2 of the judgment. It was suggested the victim could not control her urine and also • had faeces. Mr. Kalonga was of the view the learned magistrate's conclusion that the victim was both carnally known and sodomized is inconsistent with PW5's report that did not mention the victim being ravished in the vagina. In reply, Ms Magesa insisted PW1, PW4 and PW5's testimonies established X was ravished in the anus. Finally, she submitted the Court of Appeal has held that a sole child victim's evidence is sufficient to convict an offender. 10 ri S This ground is also untenable. At page 16 of the proceedings, X indeed said she was raped and in clarification said the appellant inserted his penis in her anus. I think in Mr. Kalonga's view, rape refers only to vaginal sexual intercourse without consent. But I am of the view the term "rape" is much wider and also refers to anal intercourse. As to Mr. Kalonga's showing-she was ravished in the vagina, I think this contention is unfounded. Any trauma can trigger a person to urinate such as in this or other unconnected with sexual assault. In any case, there was no evidence adduced by the prosecution proving such claim. The ground is thus bereft of merit and is dismissed. I will deal with the alleged inconsistency of the prosecution's witnesses on the time the rape took place. Hadija Lusian Sabaya (PW1) said the she saw the victim at around_15:00 hours, while Nyamizi Saidi (PW2) and Tatu Ally said it was at around 16:00 hours. The victim had said it was at noon. I think is beyond comprehension to expect a village child of 6 years to tell the approximate time. I think "mchana" in Kiswahili refers to the time from noon to evening. Minor discrepancies are allowed where a witness gives evidence after a long interval (see: Kiroiyan Ole Suyan vs. Republic, Criminal Appeal No. 114 of 1994 (unreported). I am satisfied this time frame cannot be termed as an inconsistency as the variation is minor and insignificant. 11 Before I part with this appeal, I think there was no question of misfen identity since the incident took place in broad daylight. In the final, 11 find the appeal has no merit and it is dismissed. I find no reason to fault the trial court's findings on the facts before it and its application of the law. I accordingly confirm the conviction and sentence. It is so ordered. A. MOHAMED JUDGE 18/07/2018 op A. MOHAMED JUDGE / 18/07/2018 - ' .'..,• .--------.--' -, :.-- 12