nguza vicking babu sea others vs republic 2005 tzhc 105 7 march 2005

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM a p p e lla te JURISDICTION CRIMINAL APPEAL NO. 84 OF 200 ( O r i g i n C rC a s e No.555/2003 Kisutu RM's Court) a l 1. NGUZA VICKING @ > BABU SEA } APPELLANTS 2. PAPII S/O NGUZA ................................... 3 NGUZA MBANGU > i FRANCIS S/O NGUZA} VERbUS RESPONDENT REPUBLIC................................................... H IP G M E N T MIHAYO, 1l The four appellants, Nguza s/o VicKing O Babu Sea, Papii s^o Nguza, Nguza s/o Mbangu and Francis s/o Nguza were charge and convicted for ten counts of rape contrary to section 13 (2) (e) and 131 A (1) of the Pena, Code as repealed and replaced by sections 5 and 7 of the Sexual Offences Special P r o t o n s Art N a4 o 1998 (commonly referred to as SOSPA and hereinafter to be refer ed su h) and eleven counts of unnatural offences contra., to sec on 154 (1) of the Penal Code as repealed and replaced by section |S o SOSPA They were sentenced to life imprisonment. Each of appellants was a,so ordered to pay a compensation of Tanzan,a shillings two million to each of the ten complainants. They dissatisfied and have appealed to this court against both conviction and sentence. They are also challenging the order of compensation. 2 In this court, as in the court below, they were represented by Herbert H. Nyange of Nyange & Co. Advocates. The learned counsel filed a petition of appeal containing 25 grounds. As will be demonstrated shortly, he argued some of the grounds separately, others he argued together and others, he abandoned. The respondent Republic was represented in this court by Mr. Masara, learned Senior State Attorney who was assisted by Mr. Mganga, learned State Attorney. It was alleged that the appellants, jointly and together on divers days unknown, between the months of April 2003 and 8 day of October 2003 did have carnal knowledge and/or carnal_knowledge against the laws of nature on ten girls aged between six and eight years who were pupils at Mashujaa Primary School, Kinondoni District in Dar es Salaam. The facts of the case are not very complicated. Although it was alleged that the offences were committed since April of 2003, it was not until on 8/10/03 that the blood chilling discovery began to unfold. Candy David Mwaivaji (PW1) lived at Sinza Palestine with her husband, her son, a house girl called Selina John and Gift Kapwapwa, (PW2) a daughter of her sister in law. PW2 was a class one pupil at Mashujaa Primary School, in Sinza, Dar es Salaam. On this day at 8.30 pm. PW1 was in her room with PW2 and her son. She felt a foul smell coming from PW2 and told her to go and have a bath. Still the smell did not end. As she was tired she decided to deal with this matter on the following day and went to sleep. In the morning of 3 9/10/03, when PW2 had already gone to school, PW1 asked Selina as to why there was foul smell coming from PW2. Selina narrated that she once saw PW2 with Sh.200/= and on asking her she said she got the money from Babu Sea and on asking who is Babu Sea, Selina said it was Nguza, the musician. This raised her'suspicion. She waited for PW2 to came, from school. When the latter came, PW1 asked her as to why Babu Sea would give her money. And on promising that she would not beat her, PW2 narrated what turned out to be a very explosive discovery. She said one day as she was going to school, Babu Sea who was latter identified to be the 1st appellant called her, asked her where she lived and with whom. He then asked her if she was being given school money, to which she replied that it was not daily. The 1st appellant is alleged to have given her chewing gum and promised that he would be giving her money. Then one day as she was going home from school, the 1st appellant called her, gave her a soda, took her into his room, told her to close her eyes, tied her with a black peace of cloth over her eyes, undressed her, applied an ointment in her private parts and raped her. During the process the 1st appellant also told her to suck his penis, which she did. She was not alone. She told PW2 that she had gone to the 1st appellant's house with her friends whom she mentioned. After she had been told this sad story, PW1 did a visual examination of PW2's private parts and found fresh blood and pus oozing there from. Her immediate reaction was to take PW2 to hospital where she was turned down and told that this was a police case. At around 8.00 pm. of the same date 9/10/03 she reported to Urafiki Police Station, was given a PF3 with which she took PW2 to Mwananyamala Hospital after being referred there from Magomeni Hospital. Examinations revealed that PW2 was infected with gonorrhea. She was treated. On the following day (10/10/03) PW1 went to see the authorities at the school where PW2 was attending and explained the story as told by her. She requested PW2's class teacher to assist find the truth about the other children mentioned by PW2. On 11/10/03 PW1 went to police to return the PF3 given to her before and then, with the assistance of her house girl she went to show the police the home of the 1* appellant. Latter that Saturday, PW1 left with PW2 when the latter went on identifying the houses of her friends who had been subjected to the same sexual acts, starting with Ahsia Lungino (PW3). This exercise spiralled to the ten (10) complainants. As the 1st appellant and his three children were mentioned as the perpetrators, they were all arrested and charged, together with one Sigirinda w/o Ligomboka, who was acquitted. The appellants, severally and together relied on the defence of alibL after complying with the provisions of section 194 (4) of the Criminal Procedure Act 1985, which says.- "Where an accused person intends to rely upon an aUbUn his defence, he shall give to the court and the prosecution notice of his intention to refy on such defence before the hearing of the case. 5 The notice above mentioned is couched in the — language. " TAKE N O TIC E that on the f day o f November m s when this case shall be called for hearing the accused persons intend to rely on the defence of dn dlibj_(sic)- j chaii he considered latter in this T T s " " r * r « * - - °f a" the T r t s that the acts complained of could not be committed .n aPPe 3 NO 607 Sinza "B" Dar es Salaam (hereinafter referred to as "607" only) because that house was always perpetually with people plays music with Achico Band wh,ch ^ appe|lant a ha Club The 3'd appellant 'which does ite dai,y T eSf said he is the band leader of at Chezndemba Club, ne pw rh p 7ndemba regions „ . . . s am. to noon, have a short break and then practice ,o m 3 t ^ from Monday to Thursdays and to about midday on Y w l d not possibly be at 607 during the alleged times as he left for school in the morning and came back in the evening. 6 The entire case could stand, or fall, on credibility of witnesses corroboration and identification. The trial Principal — Magistrate found the ten star witnesses credible an ei testimonies. She also found credence in the evidence of Dr. Petro Ngulai (PW20) and PW1. She therefore convicted the appellan s as charged and acquitted the 5th accused. In my opinion, this was not a very difficult trial. It was made so by the temperaments of learned Counsel, who pushed t tnal magistrate to nearly breaking point. There were complamts of , refusal to summon witnesses, rejection of some ev.dence and even refusal and/or deliberate failure to record some of the e— have carefully gone through the typed t r a n s ^ s nd * e t have not been satisfied that tne handwritten proceedings, I have accusations are justified. I will comment further on this when with the last two grounds of appeal. The petition of appeal was filed on 30* 3une 2004 together with a letter addressed to the Registrar with nine annexures wh.ch ; rre t various letters written to the court of Resident Magistrate " respect of these proceedings. I do not think that was p r o ^ Matters which were not tested in the lower court cannot form pa o : l r d . Be that as it m a y,! have gone through all the l e ^ documents. They a„ allege an iron fisted stance o n fte t magistrate against the appellants and their counsel. They do allege serious procedurals irregularities. A magistrate ,s a human being capable of losing temper sometimes. A trial magistrate can sometimes be moody. All that is not condoned by the process of t e administration of justice but it is to be expected. When ,t happens, such that it does not please counsel or his clients it cannot be basis for alleging bias against the trial magistrate. The learned counsel should leave wisdom to prevail, submit himself to the authority of t e Court and let proceedings move on. I say no more on this. in dealing with the grounds of appeal filed, I will start with ground number 9 which says:- "The trial court erred in not conducting voire dire as by law required. " Counsel for appellants argued, with a lot of force, that the failure by the trial Principal Resident Magistrate to conduct voire dire examination on the ten young victims vitiated the proceedings. He referred the Court to a string of cases: nhahiri Alv v R- T19891 T i p 27: ftahrifil s/o Mahnli V R f 19601 E.A 159; Nyasani s/o » p n ° « l P A go and 3imp*~ Banrtoma v R. C rim inal . r r ^ , n » cn of <°°° r A M heva R ^ r y (u n re p o rte d l The learned Senior State attorney for the respondent argued with equal force to the effect that voire dire was conducted whereby the trial magistrate recorded her findings. But even if it is found that voire dire was not conducted to the required standard, that shou not vitiate proceedings. This is because of SOSPA which amended section 127 of the Evidence Act. Mr. Masara went on to tell the court being capable of losing temper sometimes. A trial magistrate can sometimes be moody. All that is not condoned by the process of administration of justice but it is to be expected. When it happens such that it does not please counsel or his clients it cannot be bas, for alleging bias against the trial magistrate. The learned counsel should leave wisdom to prevail, submit himself to the authority of the Court and let proceedings move on. I say no more on this. In dealing with the grounds of appeal filed, I will start with ground number 9 which says:- "The trial court erred in not conducting voire dire as by law required." Counsel for appellants argued, with a lot of force, that the failure by the trial Principal Resident Magistrate to conduct vo,re d,re examination on the ten young victims vitiated the proceedings.^ e referred the Court to a string of cases: phahiri Aly v R. L_ -ri D T 7; nahriel s/o Mahnli v R n^fiOl E.A. 153; Nyasani s/o R irh .w a V ° p q s s i E.A 90 and James Rnnrioma v R- Criminal fnr- o , 1 Q 9 9 C.A. M bey a R e g M ix X a iiig E a d s d l- The learned Senior State attorney for the respondent argued with equal force to the effect that voire dire was conducted whereby the trial magistrate recorded her findings. But even if it is found that voire dire was not conducted to the required standard, that should not vitiate proceedings. This is because of SOSPA which amended section 127 of the Evidence Act. Mr. Masara went on to tell the cou that even before the amendment of section 127, where voire d.re , found not to have been done, the evidence of the witness is trea ed as norma, evidence. This was the final finding on the issue in he Bandom a case. The leaned Senior State Attorney also referred the court to the most recent case of D eem s* D a a t U l a w a m u m ^ naati v R epubn c - C d m i C c O B B e a L N ° m ^ g a ^ Registry (unreported). He concluded by saying th a t, . is found that no voire ^ e x a m in a tio n was conducted; the evidence o the ten young girls will be just lowered to require corroboration bu not to vitiate the proceedings. He said on the strength of the case of ^ . . n « n i Ali Mg- " * " “ R ftPPea' N°'9J - S------- — (unreported) there was a lot of corroboration evidence from other witnesses. Voire dire examination is governed by section 127 (2) of the Evidence Act which has this to say "/77(2) where in any criminal cause or matter any c / of le n d e r years is called as a witness does not <n the 'underhand % e f £ ^ s p e a k in g the truth. ' What does this mean? It is settled, through case law, that section 127(2) requires the proceedings of the voire dire examination be recorded. All the question and all the answers thereto must be recorded. This settled principle of law is to be found in the Daati case (supra) where, on 5» day of October 2004, the Court of Appeal said: proceedings it is apparent that when PW raiied on to testify, it is indicated. ^ s^ f ^ ' J ^ E ‘ M S K eAcZ 1967 !S % £ ? £ £ 2 & » ‘ ° S * r 1 E £ Z ~ r ~ ' S 2 S - c s s z t t ^ j s r d » V M S = S S r « possessed of sufficient intelligence... D aati. For example before PW2 (7 years) gave her tesbmony, what transpired:- truth and lies and oath rn u rt■After interrogating/Examining the child I ha ve found out that she knows the difference between the truth and lies bu T e s not how about oath so her evidence is taken without oath in camera. And before 8 year old Alisia Lungino (PW3) B « ^ v i d e n c e , the learned Principal Resident Magistrate recorded as fol ows. "Court- Holds voire dire, and is sa^ e she knows the difference between the truth and lies and what is to swear, She // is sworn 10 What was recorded before the 7 year old Rehema Mgweno (PW5) qave her evidence is this: "Court-1 have conducted voire dire and conclude ' that she knows the difference between the truth and lies but not oath. Evidence unsworn. The rest of the child witnesses are not any different. The voire dire, if any was conducted in the same style. This is what the courts have repeatedly held to be improper and to equate it with no voire dire a all The reason for this is not far to get. The conclus,ons of the tr,al magistrate recorded after a voire ^ e x a m in a tio n may be chal enge with success. This is what happened in the Bandoma c a s e M rU ^ case (supra) their Lordships made reference to the case o o r-tQ « 7 i T.-R 117 where the opinion of the judge was successfully challenged in the Court of Appeal of Tanzania which held that the opinion was not reasonably open to him. Mroso, XA. went on to say. " The Court of Appeal was able to came to th # conclusion because it looked R e r e c o r d o f h e voire dire examination and noted the child was in S td.III he was unable to tell me court the names of his parents and was not even aware that his sister had died. Therefore his evidence should not have been taken. On the foregoing, I agree with counsel for appellants that the provisions of section 127 (2) were breached as no voire dire examination was conducted on 3ulieth Mkore 8 years (PW8) Isabela Angonwile (PW9) 8 years, Yasinta Mbele, 8 years (P W U ) De. affan 7 years (PW13) Ageneta Sia Wendeline 6 years (PW14) Amma Shomari 7 years (PW15) and the other three witnesses menttone above. 11 What is the effect of that lapse? This is what I now t ^ can trace the development of the law on voire dire examma the case of Gabriel Maholi (supra) where, Sir Alasta.r Forb , had this to say at page 161.- "In the instant case the judge satisfied l e a r n e d h im Zlfthat the child tendered as a witness was sufficiently intelligent to satisfy did not, so far as appears from t t e j & o r d j ^ himself that the child understood the difference b e tw e e n truth and falsehood. Such an omis ion could be fatal to a conviction in a case where the This position^was ^ e p e a S f ttwsnty nine years latter in the case of D hahiri A , (supra) where Mushi, , case of Nyagam i s fo Bichawa__v— concluded: "In this case,, the proceedings do not show that the learned trial magistrate cmip'l ed with the mandatory provisions of the la T h a t a Z l X ^ e d ' a n d acted upon. ' M ^ « c ,« « ” * “ * “ " " P2 cau that where no voire unc a decided. The court seemed to say that wne examination is conducted the evidence is treated ' « ^ evidence of a child of tender years and would, as a matter prac C l corroboration. Bandoma did not say the trial is vitiated nor that the evidence so tendered becomes worthless. The answer to the question I posed is to be found in the Daati case (supra) where the Court of Appeal, Lubuva, J.A. had th,s to say. 12 "It is settled law that the omission to conduct v J le d ir e examination of a child offender years brings such evidence to the level o unsworn evidence of a child which required corroboration." But with SOSPA, the requirement of corroboration is now no longer as necessary as it used to be. Section 127 has been amended by adding sub section 7 which has this to say. "Notwithstanding the preceding provisions o f this section where m crimind! procsedings involving sgxu3 offence the only independent evidence is that of a child of tender years or of a victim of the sexual offence, the court shall receive the evidence and may alter assessing the credibility of the evidence of the child of tender years or, as the case may be o f the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to ^ r e m r ^ '" the proceedings the court is satisfied thatther child of tender years or th e '"a im ° !% * mth « sexual offence is telling nothing but the truth. Therefore, whereas I agree that there was no voire dire as known to law, the proceedings were not vitiated. This ground of appeal therefore fails. Ground of appeal number one complains of the trial magistrate's failure to consider that house 607 was never at any one time conducive to sexual offences being committed therein as it was never vacant. Counsel for the appellant traversed through the evidence of the defence witnesses and concluded that these 13 «■ h « i that 607 was always and every tone with witnesses had estabhshe ^ ^ ^ ^ dw8, people. He referred the co ^ ^ evidence of these DW9, D W U , and defence ^ AcWco Band musicians witnesses taken toget er is ^ ^ ^ Qf ^ were holding their practi t Qne Francis appellant, one Bernadeta were staying there. The Elombee and a house g.r on rf ^ ^ wife-s wishes and went to live at Sin a ^ ^ K (DW 10) at the house of one appellant, like most was not also seriously g e n tly . He started musicians of his genera ^ ^ ^ Diamond Sounds , his m u s i c carrier w it h c m c ' IntemaHonali then Beta Musica, then FM Academia, then at F M. then t0 T o t and at the time o k No, u with a Academia and was living a ^ ^ ^ (D W 13 ). person he called his wife , ^ ^ when he Th e 2 - appellant told the court th ^ ^ ^ ^ c m , had just come from Arus ^ ^ ^ ^ ^ one house of one Emanue ^ shjfted QUt ,n Mirey Mbombo where accor mg ^ ^ £ September 2003. It would appear he went to No. 374 in a house school boy, it was the case for alleged times. 14 The Republic's position was that the presence of such other people in 607 could not stop the alleged offences being conumte Moreover, 607 had two doors leading to the outs,de such t a on entering through the hind door does not have to pass throug ! This, Mr. Masara said, was also obse.ed by the court when it visited the locus in cuo. He argued further that the musea exercises was a version of the appellants never w.tnessed by A ^ Superintendent Joseph Shilingi (PW22) who was investigating officer in the case. Finally the respondents t court to consider the evidence of the victims, who sa,d were found in 607 by woman and beaten. I think this ground of appeal should not detain us l o n g The answers would be found once we come to deal with the cr« o the prosecution witnesses. But as said by the respondent takmg Resident Magistrate when she visited the locus ,n quo, ,t was not impossible for such offences to take place even when other people were there. The house is not made up of a single room nor a smgle entrance. The other people around, if they were there at all wou not be in every room at every time. The possibility to comm,t se crimes was there. I am of the settled opinion that th,s groun appeal must also be dismissed. I so do. The 2 - ground of appeal complains about the trial magistrate failure to consider the appellants' defence of alibi. I laid down the nature of the a ® when I was giving a summary of the defence case earlier in this judgment. I have also delt with it when g,v,ng 15 el,ants' version of where they lived. Did the learned Principal appellants vers defence? This is what I shall Resident Magistrate fail to consider this defence. now endeavour to answer. As said earlier, a notice under section 194 (1 ) of CPA had been given. This provision was inserted in the law for a purpose ^ ^ an embellishment. The purpose was t o g was a noticetoof - ^ m o T ^ ^ ^ * was that ^ : r : - r - t = : r r : ^ e 'i m p L o n that it is not enough just to s ^ e f e n o e 1 rely on an ^ w i t h o u t giving the ^ failure w» “ P” 5" 8* accord no w eight of any kind to the defence. are saying. The learned Senior State attorney took the view that th evidence taken as a whole does not make it im p o ss ,b le . appellants to be at 607. All the appellants were an attempt to say that the appellants could not meet^ he basis The 1* and 3“>appellants lived in the vianity of 607. Althoug 16 -t.u rwMQ and the latter said they „ ^ aDDellant said he lived with DW9, and tne z . p o s a o iB f « « J* sta, « m ™ , a u appellant is very weak, he sai . appellant n\A/?S did not assist to explain that tne l .he evidence of DW25 tendered by ^ ^ could not be at 7. J s ^ ^ ^ on ^ respondents say its acceptanc ^ ^ The strength of the case of E z e k L ^ J — of 2n< respondents conduded by saying that the e d appellant does not exclude his being at 607 .n Dar of the times. r : r r r r r : r : : r prosecution and tniraiy uy arrused nd making a finding that such defence is not if thP defence like in this case, say the appellants persons, f ef “ n leads evidence to show not have been at 607, but the P ^ ^ that the of rejecting the defence of a * the prosecution, this ha defence will be * « - - * - » » » factual justification, that would be failure to cons ana if it had been fronted, and a higher court may mterfe * * i may the ^ Will turn to grounds ten and eleven of the petition of appeal. 17 Th e two grounds of appeal are framed as follows: u W e trial court, children's evidence on outwelghed being hazy and tha rorrectfy disbelieving as unworthy of belief. ,nds learned counsel for appellants attacked the of M « « of « * » > * » » « * “ >' ^ the of PC S . ~ = l ( » « ) the arrests as given. aDnellant in company of „ » » « » - » « " ^ » ° ~ 2 ™ » - « » . » » « » « “ ■^ evidence of PW learned counsel also did said PW2 was not sexually assaulted. complain about the fact that wher= PWS s « ^ ^ ^ assaulted and that PW6 suppo ^ also a there was no sexual act C°m™ r ^ defence on w e failure to have complaint from learned couns ^ ^ an independent witness when a search wa lt « ^ “ r r j “ complained about the ^ whQ test|fied, 0r some of accused who was acqu ^ ^ ^ ^ ^ Engljsh; an them told the court th ^ jf the allegation denied by an me teac e . ^ ^ ^ ^ ^ children lied to court against the 18 „ nts7 Learned counsel for the appellants made reference to appellants. ......... p t i.R 86 and jjlu s a _v cases of n Q701 H C D 278 as authority to what a court snou S J A 2223— ---------- 7 HP nraved to the court to discredit the there is falsified evi ence. had evidence of the children against the appellants as done in respect of the 5th accused. The respondents say that was not so. Mr. MaS3ra r r r child of 7 yea . g i l r t 70 to show the rase of Cwarict K achr m h r h " that forgetting does not of PW .l, there had been complaints from the pp . « „ ls i™ . - n « - ««■ >„d c - « « « , «• t v * one. The respondents said according to the ev, ence Sgt Gervas, (DW 31) he recorded the statement on 11/10/03. 't* Responding to the submission that whereas PW1 found infected with gonorrhea, the dorforfcun no^ learned Senior State A tto rn e y ..id th ^ ^ wlth p w i present was 10/10/03 but p w 22/10/03 When the infection could have been treated. He conclude 1 = * « • » * — “ "' a w ' 19 , falsification On the lack of an independent witness during and not falsificatio . one< Mr Mnzav3i the ^ a 607, « ^ ' „ , „ ,* « in s„d that there « » s no M he « the single party era. •H- i nf the 5”1 accused was not because the active participation by ^ T h e only contradiction that the 5 accuse’ au^ ^ charged on aiding contradiction was on teac ,ng • ^ ^ ^ ^ and abetting the c o m m o n of a n * a case of M a k o k o !_C h a n d e n ia !_ ^ I T ^ ^ o ^ o t t e of English respondents made « . = r » » to , h . ™ , 0« « * « * m S * S t* '^ r .n there was a lot of sub" ^ mZ as to who would falsify the r « " - * — r : r . - r . ” r " : r : r i « appellants (3 app famous musicians, famous. The respondents£ there wer ^ ^ ^ ^ ^ even more famous, but th y Aftpr the victims who told such ghastly stones; a b o u t ^ 3PP ^ from incidence was discovered, some of the children w 20 the school to other schools. The Senior State Attorney prayed that the two grounds be dismissed. The trial Principal Resident Magistrate analysed the case for the defence and the prosecution. With respect, I think she went too much into the small contradictions on the case for the defence. The law on burden of proof has been long settled. Contradictions canno form the basis of a conviction. For as it was stated in the case of N k .™ V. R MQQ21 T L R 213 by my senior brother the la e Mr. Justice Katiti: "white the trial magistrate has to look at the whole evidence in answering the issue of guilt, such evidence must be there first - mdudmg evidence against the accused' f prosecution which is supposed to pr case beyond reasonable doubt" However, this appears not to have disturbed her mind to a level of shifting the burden of proof. She turned to the case for t e prosecution. After an indepth analysis of the evidence adduced by each of the ten victims, she was certain in her mind that they were telling the truth. For example when dealing with the evidence o PW11, the learned Senior Resident Magistrate said. "Although Gift forgot to mention Yasinta aqain in her evidence, Yasinta did when she was narrating how she convinced Gift (PW ) Aiisia (PW 3) Juliet PW8) Isabela ( PW9) and Dei ( PW13) to accompany her to the first accused 607. This omission to me is not fatal in that the substance i.e identification is the key contrary to the defence submissions 21 te n d s Gift, Alisia, Juliet, i M and De, taking them to his room at 60/. After they were undre^ J ^ % ^ % i C) oiled their private parts, andJ ^ ^ rJ both in front and the anus. So s r ^ s s ’ S » 5 K » r s ; s s i m^c the one who told her the names o f the second to forth a c c u s e d person as his children. Yasinta like her comP anion^ l S,^ e s e x m oney b y the first a^ . a% T and leH. The first time she w asPa,d2f . (. h ve been AIWd after m ^ 1 h fve already demonstrated Pfb o ve when analyzing the f d e n c e f f G ^ Rehema (P W 5 ) 4°°d^iaS and d^not S,a did not menh^n me the wgstfieY /n S S r i « » **> W > other victims. 22 >nd she « » < * » « " m “ teS* ” n , ° ' P W ‘ 3, “ the door. He dresse W c r ,inq i "She saw us and I hearing o f children crying. * s o u n d s beat us with a stick. She concurred with th e '° ^ rs^ ^ e Tam e I have her friendsto<W7. 0*£ l/ectmoney." True forgotten told me lets go sex and she like the others was paid m0" ^ * * rshe was as she said "/ went anybody as he used k i " u s o r t a k e us to police, (still sobbing). M » « - « « * » » > - to show thatAza " f P ^ Z j f r r a f e d the ordeal the repeated sex orde^ jd , jcj te/*- and we had S * indicated that she was not telling lies. , Of the rest of the star witnesses for the prosecution T h e evidence of the res was treated the same. Th e Learned Principal Resident Magistrate then turned to the f PW20 in respect of the ten complainants. Th is was a s evidence of PW20 in respect ^ ^ ^ ^ the medical e v i d e n c e ^ witnesses, I cannot e ^ e n c e was u s * o as ^ ^ ^ ^ ^ , avoid being a little long. ^ ^ report by filling in the relevant parts of the . 23 Th e 1* and 2nd counts against the four appellants charged them unnatural offences against Aza Hassan (PW 12, she was f°r ed bv PW20 Th e medical report (Exh.P3) showed she was eX3T th L l smell vaginal discharge, the hymen was torn, anal found with foul , 9 ra d and sphincter was lax. PW20 concluded that PW12 sodomized. ' ^ she went to the 1st appellants house PW5 had testified that she were. whereby he put his * e s breaking as the hymen was intact and the anal sphincter was normal. Alisia Longino (P W 3) was the subject of counts 5 and 6. She had testified to have been taken to the l* appellant by P W U to get She did go and was "sexed" both per vagina and per anus money. She did go a quardian Aisha and the 1st appellant had oral sex wi ■ l „ r r : « - ^ - r r r : blood stains ari P ^ ^ gnd a,ax examination by PW20 (E x h .P l) ^ anal sphincter. T h e hymen was intact, the anus was perforated. Isabela Angonile (PW9) was the subject of counts seven^and ag„ . „ « « » « Mary Chitumbi (PW 10) examined her on 11/ « her » » n . » i « - «* * * « - L « ^ “ s ” n 24 i that PW9 had been sexually pg(la„al — * <P W M abused. • m PW8 the subject of counts ten and eleven pW 20 also examined , ^ ^ ^ [ed that concerning all th e appellan s. ^ ^ ^ ^ four PW11 took her to the 1 aPP ^ hgppened for three appellants had raped and supported her version as on daYs consecutively. Her m ^ ^ ^ wjde wjth fou, visuai examination she found ^ # ^ ^ and a ,ax smeU. T h e doctors repo ( ^ ^ abused. anal sphincter and concluded that PW „ thirteen were in respect of P W 1 3 . T h is is Counts twelve and th .rte ^ the the girl who led the trial court throu9 ^ ^ ,ady of 51 years locus in quo. Brigita Kamenya ( ^ ^ ^ ^ pm 0 examined her and found fou sm ^ ^ which said that examined this victim and ma c hym en, the anal there was foul smell, vaginal d.scharg ^ sphincter was intact. She concluded that abused. . 17 were in reference to PW2. She is the Counts 14, 15 an ^ ^ ^ t0 detect foul nucleus of this case. Her guar ^ ^ ^ made the ■ x « i„ .e s »g ,«o n « * M » « M „ ,,c “« ^ * e s » blood W » appellaHs M n , ^ ^ ^ „ th e vagina of PW2. ln e hYmen was intact, but there were clinical features of sodomy. She concluded in her report (Exh.P2) that her anal was perforated. The subject of counts 18 and 19 was PW11: She was also examined by PW20 who reported in Exh. P10 that the hymen was torn, there were old healed perianal bruises and the anal sphincter was lax PW20 concluded that she was raped and sodomized. The story was not very different in respect of PW15, one Amina Shomari who was the subject of counts 20 and 21. Th e medical report made by PW20 (Exh.7) was to the effect that the hymen was torn and the anal sphincter was lax. She concluded that the child (PW 15) had been raped and sodomized. Th e last two counts, 22 and 23 were in respect of Agneta Sia (PW14) she had been visually examined by her guardian Lilian Mbawala (PW19) who noted nothing abnormal whereas the doctor (PW20) vide Exh.PS found and reported that clinically PW14 had a torn hymen, had vaginal discharge and lax anal sphincter. She concluded that the girl had been raped and sodomized. Again, the trial court delt with the evidence of PW15 in relation to the allegation by the defence that this case was a frame up. After analyzing the evidence of this girl she concluded. "The transferring o f this witness to another school waters down the defence thesis that the parents and guardians o f the victims ^ framed up the accused. Why would Amina s parent set up the accused b y using Amina and ^ then have the trouble o f also disturbing Amina s studies? 26 the examination in chief of this witness, she is recorded to have In said: "/ am in school Mbagala. 1 used ^ , school in Sinza Mashujaa class 1A. I have been transferred to Mbagala by m y m°ther b Z u s e 1 have "tabia m baya"m y m o n o id me I have bad habits with Babu Seyer/Sea /she cries profusely) Babu Sayer/Sea sexed me and p u t his penis infront and behind (she is sti crying very m uch) in Sinza I live with m y aunt, itebu Seya/Sea times at Sinza school I used to escort his son Zizel to dr" ]k water. Babu Sayer/Sea pulled me ^ ^ f me into his room. I saw oil m the room. He then told me to suck his penis I did. He oiled me. He then put me on the bed and p u t his penis in m y vagina. He did the same in m y ass.............. The fact of PW15 being transferred to another school was tw s fo re w „e W fh . on record and » * d be u srf » ground an opinion. Th e trial magistrate, as stated above, spent a lot of time considering the case for the defence. She analyzed the ^ « and every appellant. As stated earlier, the 1 - appellant t e s t e d that he did not live at 607. Th e appellant called in DW12 (Manan, Bongi), Edward Masawe (D W 13) Ruge Mutahaba (D W 13) and D W 2* A,I the defence regarding this appellant was considered. Th e learned PRM also analyzed the defence fronted by the 3rd appellant an e 4th appellant noting various contradictions at material areas. Th e tr’ magistrate does not appear to have made a specific finding that the defence of a lib im s not, on the evidence as a whole, ava.lable to the 27 me this was not fatal to the proceedings because appellants. T o me ^ ^ ^ ^ case f0r r Pr o s e t t i - and b e B «e d that the ten victims were telling the truth when she said:- •77 * counsel submitted that t h e ^ n were not free witness (sic) I a s s e s s " witnesses and from time victims P F .m . anus and vagina and had ora! sex. was learned Principal Resident Magistrate justified that conclusion? , have ™ w oush« « . < « « « ,e violation on M '« " * the B u a in a o a n d _ A n o t h e L - Y S _ R ^ ^ -------------- — J — « « T r z z z z i T h e C° Urt ° r r im ir,al Appeal-------- ------------------------- . hf)n|iT»h Raiab va m * . m «■ « » « ’ “* ” ; A h d a iia ji^ a i a t o - a n d -Q i b s t § -l ^ S ^ — t - court had held: ^ bgsed "Where the decision o f f/,en /f /s the on the c r e d ib ilit y their trial court which ourt which merely credibility than an appellate c o m ^ reads the transcripts o f the reco ■ rhe court went on the quote from another case of O m a r A h m e d v , P [-1QK31 T L R 5 2 when it had held. "The trial court's finding as to credibility of witnesses is usually binding on an appeal court unless there are circumstances on the record ^ which call for a reassessment o f their credibility. This has been the law on the issue of credibility. This court is bound by it. And having gone through the record, I am persuaded that the trial Principal Resident Magistrate findings on the credibility of the ten star witnesses was justified. The medical doctor, PW20 is a specialist pediatric surgeon. By her qualifications, she is very senior. She examined all the victims on 22/10/03. She gave a report on every child as found correct by the trial magistrate, during cross examination by Mr. Ringia, learned advocate who was assisting Mr. Nyange, she said. "My expect knowledge a child whose hymen was torn can walk and do everything, she can get pain but a week or so the pain subsides. She concluded by saying: "There are smells which are typical on vaginal discharge. You can tell if the foul smell is infection or cancer. In the above children the foul smell was from infection from unsafe sexual contact. Blunt weapons pennies (sic) test tube or "vidole"I zeroed in on pennies (sic) or vidole. I am sure hundred % that these were done by fingures or pennies (sic). I t is not true that a banana is blunt but it is sharp. In m y report I didn't ^ say pennies (sic) or fingure but blunt weapon. I 29 Qhe was believed by the learned trial magistrate that she was a witness of truth. I have ho reasons to fault the opinion of the magistrate on this witness. On the acquittal of the 5th accused person which was a subject of ground U of the petition I do not think that the complaint is justified. It is not strange for a person to be acquitted from a group of charged persons. Evidence can be uncertain about one person and very certain about the other. The fact that the children were not certain, or were outright wrong as to what the 5th accused taught does not make them unreliable all through. I would agree with the respondents that a person can forget which does not mean he does not know. In the case of M athias T im o th y v R. F198*1 T L R 8 6 the late Lugakingira, 3 (as he then was), quoting M usa v . R r i 9 7 f il H C D R . 2 7 8 said: "... the rejection o f part o f the testimony o f a witness does not necessarily make his whole testimony suspect or discredited. The evidence can be discredited only when there is a glaring falsehood against one of the accused persons. In the case of Timothy, the court went on:- "In m y view, where the issue is one o f false evidence, the falsehood has to be considered in weighing the evidence as a whole, and where the falsehood is glaring and fundamental its ef is utterly to destroy confidence m the witness altogether, unless there is other independent evidence to corroborate the witness." 30 The p r M did not find falsehoods in the evidence of the ten children .n nect of the 5th accused. The evidence looked as a whole just.f.es the position taken by her. She found the evidence of the children as ainst the 5th accused as hazy: which, to me, is different from saying that the evidence was a pack of lies. On the reasons I have gJen. I find that this evidence could not effect the evidence agamst V' the four appellants. in conclusion, for the reasons I have given. I find that grounds 2, 10, and 11 are not genuine complaints and hereby dismiss them. Grounds four, five and six were argued together. These grounds centre on the issue of penetration. They are inter twmed. They say as follows: "4. The trial court erred in absence o f evidence to hold that a penis that does not erect can penetrate a female genital organ or anus. The trial court erred in view o f medical evid^ e 5. to find that the complainants were penetrated. The trial court erred in absence o f a description 6. o f the penis to find that it was m fact the perns that penetrated the complaints. Learned counsel for appellants relied on the evidence of DW1 and DW11. (I think be meant DW10) the latter, a close fnend of the 1 appellant who told the court that they tried to get medical help but did not manage. Counsel also insisted that as there was no description of the penis of each of the appellants, which according to him, was necessary, the charges could not stand. He also touched 31 on the evidences of PW20 where it said some of the children were not penetrated. The learned Senior State Attorney in reply submitted that on the evidence available, the 1st appellant and his children raped the ten children. He said in charges of rape, you do not require an erect penis or a rapture of the hymen to prove the offence. He referred the court to T h „ Digest of criminal Law, Evidence and 199? ^ it in n at Pane 187. The Senior State Attorney also pointed to contradictions on the testimony of the I s appellant and DW10 regarding the duration of the erecting problem. He then run through the evidence of PW20 in the same way the trial magistrate did as is shown when I was dealing with ground number ten, and concluded: "The totality o f all these exhibits evidence is that the children were penetrated b y the appellants and that finding some o f them with intact hymen cannot remove the fact that they were penetrated." And dealing with ground 6 of the appeal, he answered that that was not a requirement of the law. It was enough for the children to say that they were raped. Th e trial Principal Resident Magistrate delt with the issue of a malfunctioning penis of the 1st appellant at great detail. She related this fact, if true, to the law under SOSPA. At the end of the day, she rejected that line of defence by saying: "The first accused person said his erection capacity was going down as time gOQS by. Thdt 32 did not mean that within the range o f the crime he was completely malfunctioning. v® ] . was, he could still penetrate sl'9 ht% S why some o f the victims above did not-. suffer vaginal and anus injuries under William W. Becks." In dealing with the evidence of PW20 regarding the findings that some of the children had intact hymen, the trial magistrate re,,** a book by W,ll,am W ^ J r^ b s te t^ ^ r r »-.„nal Medi c i sciences for Tndependen------- " v 24 4 and concluded that "penetration by a penis throug eas ic hymen may occur without laceration." >' Let me start with ground six I agree with the learned Senior State Attorney that it is not a requirement of the law in proving rape for the victim to give a description of the penis that penetrated her Th e reason is simple. Every normal male human being (or mammal for that matter) has only one penis. When a victim ,s raped and s succeeds to give a description of the person who penetrated her, is enough to prove the offence against that individual. Th,s ground of appeal is a hoax and I dismiss it. Ground of appeal number five. Th e medical evidence relied on by the prosecution at the trial came from PW20 and the exh.b.ts she tendered after examining the children. She was cross examined by the defence. She said, inter alia that according to her expenence children who are sexually abused may not show signs of abuse, have gone through the evidence of the ten children. Only Rehema Mgweno (PW5) was found to be norma., that is the hymen was not 33 torn and the anal sphincter was normal. However, there is the evidence of PW6 who said: "/ interrogated her (PW 5) in the presence of Mama Gift. My daughter admitted that they were going to Babu Sayer/Sea taken there by Yasinta where they would be raped and sodomized and given money. I checked her private parts and noted her vagina was enlarged too big." On this aspect, the evidence of PW5 went thus: "Yasinta told me, 'let us go there after school" I asked her ”where to? "She said "To Babu Sayer/Sea to drink water. I took her and Babu Sayer/Sea told Yasinta ”Go and get other children 'She brought Gift, Juliet, Alisia, Tab/a and Dei. Babu Sayer/Sea took us to his house. There was a mattress on the wall and on the bed He put me on the bed. He put his penis (m dudu) inside me and in m y buttocks. He told me to suck his penis while he sucked m y breasts. Ic jjcl ........................ He told me not to tell anybody else he would cut m y nose and mouth and take me to police. I felt great pa in ." The medical evidence was and cannot be all conclusive. That the hymen was not torn and the anus appeared normal cannot, I my view, displace the cogent evidence of PW5 and PW6. The respondents also referred me to the Digest of Criminal Law, Evidence and Procedure (supra). In the case of P v Nirholls (1 8 4 7 ) G l T O g 179: 2 Cox CC 182 it was heldl "Where a prisoner was indicated o f carnally knowing a child under ten years o f age, the capital charge will be supported by the evidence o f entering the body, without proof 34 o f perfect and absolute penetration and the absence or presence o f any hymen is not conclusive either way." And m the case of ■> » w y i « fi«3 < n 3 3P 196 it was stated: "In a case o f rape, if there has been penetration, the ju ry ought to convict of the capita! offence, even though the penetration has not proceeded to rapture the hymen. The development of our law has not been different. Th e new section 130 of the Penal Code as provided in SOSPA has this to say in sub- section 4:- "130(4) For purposes o f proving the offence o f rape - (a) penetration however slight is sufficient to constitute the sexual intercourse necessary to the offence. " The case of Fnnrli Omari v P T19721 HCD 98 which was also quoted by the learned Principal Resident Magistrate is relevant on the position that a tear of the hymen is not the only conclusive evidence to prove rape. What is more is this. The medical evidence so much elevated under ground five would only apply to one out of the ten victims. So seriously speaking, I do not understand what learned counsel for appellants means when he makes that complaint. The finding by the trial court on the fact that the complainants were, on the evidence available, penetrated was well grounded. I find no merit in ground five of the appeal and dismiss it. 35 On ground four, there was a lot of noise made regarding the potency or otherwise of the 1st appellant. There was an allegation, in the lower court that the trial court refused to give permission to the first appellant to be examined. All taken together boils down to one question. Did the 1st appellant commit the acts of rape alleged against the ten complainants or any of them? I have explained above how the trial court delt with this line of defence. I have no reasons to differ. Th e first appellant was the principal actor in the whole horrifying and callous scheme against 'near angels' at a period of the very foundation of their lives. He is a father of several children including the other three appellants. His wife died in 1998 and m 2001 he started living with DW10. On the issue of impotency, she had this to say: "jn 2002 the 1st accused had problems with is penis. We started well sexually and at the end o f 2002 December I discovered that he was not performing properly sexually. She then went to see local medicine men without success. She eventually landed on one Dr. Yogoro of Muhimbili. This doctor told her to see him at Tumaini Hospital Upanga. She was with the first appellant who however did not enter to see this Dr. Yogoro. The first appellant gave his defence on 9/3/04 and said it was about three years since impotency set in which would mean from around the beginning of 2001. Impotency is a traumatic and stigmatic occurrence. And for a couple living together, one would I expect the dates not to differ too much. Th e trial magistrate delt With this and concluded that it was not true and even if it was true, ,t did not matter. She said: "Even if the first accused could not have full erection there being the slightest penetration was sufficient to prove rape as per law established. The victims proved that the first accused put his penis into their vaginas (sic) and anus and they sucked his penis." What the trial PRM was saying is that the defence of impotence was inconsistent with the credible and believable evidence of the victims. With respect I think the PRM was justified to come to that conclusion. All the complainants mention the 1st appellant as the person calling them, manly through P W ll. This is what they are recorded to have said in part; beginning with PW2:- ^ One day Yasinta who is m y friend in same class told me let us go to Babu Sayer/Sea to be given money but you would see what will be done to yo u ' I went with Yasinta on our way to school to Babu Seya/Sea in the morning." And a little latter in her testimony she says: "On the following day on our way to school Babu Seya/Sea saw us and said "Watoto Wazuri njooni nikawanunuhe soda " I was with others Aza, AHsia, Rehema, Juliet and Size!. .... We entered his room and he covered our faces with back d oth ..." Then there is PW3 who had the following to say in part:- I I 37 7 know the accused in the dock with his children but I don t know their names Babu Seya/Sea is the f one. They used open and know Babu Sayer/Sea. Our friend called Yasinta told us to follow her to go to a Babu who gives money (anagawa fedha)........... .......... •••• ' We went to Babu Seya/Sea. Yasinta dosed the door o f Babu Seya's sitting room. Babu Seya held our hands. He took us to the room. He undressed us. He covered our faces with black Peace^ o f doth. He placed me on the bed with others. Those who didn't fit would be placed on the mattress on the floor. Rehema Mgweno (PW 5) has been quoted earlier in this judgment. Juliet Mhavili (PW8) told the following story in part: "Mv friends in school Gift, Rehema, Dei, Amina, Sia, Tabia and Alisia. We are in same class 1A. We used to play together. One day we were passing at the school ground. Three men and one lady can] e^ ° take us The boys are in class IB and the girl is in class 1A. I do not how the names o f the three boys a^ v% J ^ na^ ° ^ J oirl is Yasinta. I was with Gift, Ahsiaf uejf Rehema, Sia, Amina, and they took us to Babu Seya/Sea (walitukamata). B*bu Saver/Sea house is very dose to the schoo. I t was at 11.00 am when we came from class. We found Babu Sayer/Sea, Papn and two other children o f Babu Sayer/Sea. Babu Sayer/Sea took us to his room undressed us and our pants and made us lie °n ^t e ^ Oiled our vagina and his penis and he p u t th same in m y vagina. He sucked our He oiled our vaginas and buttocks. He had sex with us in the vagina and buttocks... 38 T h en there is the evidence of Isabeila Angomwile (PW 9) who said: "When we arrived at Babu Sayer/Sea, Babu Saver/Sea tied our faces with black doth fn T h e undressed us inside his house He then oiled in our private parts. Babu Say / oiled me. Babu Sayer/Sea had^ ^ ‘ fe/f /n- m y vagina and tatter in my I didn't do anything although I f P He Babu Sayer/sea also put is pe mouth...... " Yasinta Mbele (P W U ) has the following to say regarding the 1 appellant: "They undressed us and tied our aces with black doth. It was the first a^ f d who tied my face. The f i r s t accused put his penis into my vagina after he oiled my and call m y friends. I called Gift, Juliet, a L , Isabela and Dei I found them playing in nur school compound. I told them Let go to one Babu called Nguza who dishes o money.. . . " They asked me the name, them the first accused's name. Aza Hassan (PW 12) said, inter alia:- "I know the accused in the dock. The first accused is Babu Sayer/Sea. I know the rest o f the male accused by face but they were doing bad things ( wallku^ sjnta ^ ^ V u ^ rB a b u S a y e r/^ a u n d re s ^ m e ^ He oiled my private part sex with us (anatufanyia tabia mbaya). The>n he turned us from behind and oiled us and had sex from behind.... 39 Then „ » « 7 , « <* M * “ evidence is as follows: " One day he covered m y face and undressed me. H e told usto'suckhis penis and would give us money. The there was a knock at the door. He dressed up............" * Wendeline is » « * » « •- »= « “ “ PW14. She said in part: "one day after school we were taken b y the first accused Babu s f y e^ f a and took us to his house He told us to suck his (f accused pennies (sic) ir s t oiled our private parts an «,0 » Shomari, ( P W . S 1 « « « “ ” * dealing with grounds 10 and U above. ,Qj ^Ytrarts it is evident that the 1 From the above quoted extracts, at- t-hp centre stage of the happenings in ^nnpllant was at tne cenut: complainants were subjected to very long cross defence, after long examination by the prosecution, ha e able to see anywhere, where the issue of non-erechon of the appellants penis was put to these witnesses. This issue surface very strongly when PW20 took the witness box. child was made to answer on this issue which was highlighted by learned counsel for appellants. Th e learned Principal Resident Magistrate appears to conclude that it did not matter whether the I s* appellant could generate an erection or not. I think that was not proper. There was an issue before her. She should have made a finding on it.' This being the first appellate court, I am justified to reassess the evidence and make my own conclusions. On the evidence, I find that the defence by the 1* appellant that he could not erect was manufactured. On the evidence of the victims, and failure by the counsel for appellants to bring this issue in cross-examination, I am bound to find that the 1 appellant's erection capabilities were in order. On the foregoing, find no merit in ground of appeal number four and hereby dismiss it. Ground of appeal number seven complains that the trial court erred in finding that the appellants and 607 Sinza Palestine were properly identified. Learned counsel for appellants opened his line of arguments by complaining that this Selina who was housemari of PW1 was not called to testify though she is alleged to have taken P W l to 607. He said it was not any of the children who identified th house. He said there was a contradiction between the evidence of PW23 and the other witnesses, the former saying PW2 showed the house while the others, like P W l said it was Selina who identified the house Learned Counsel also complained as to the date the 1 appellant was arrested in that whereas PW23 and PW2 said it was on 9/10/03 the evidence of DW6, DW7, DW11 and DW18 who said on that day Achico band did perform at Lion Hotel and the 1st appellant was there. 41 Counsel for appellants also complained on the evidence of PW2 which was recorded by DW23. He said in that statement PW2 said'she knew the suspects by name. But if they were not there, what did PW2 use? He answered this by saying PW2 must have been using another source. Learned counsel also did complain on whether there was an identification parade or not. Hp concluded that there was none in law. On the identification of the appellants, learned counsel said it was not possible to identify the appellants as the victims were being tied with cloth and undergoing traumatic experiences. In those circumstances, he said, an identification parade was required an necessary. T o underscore his point, he referred the court to the evidence of PW21 where she had said: "T saw the 4 men accused at police station, they were tied with handcuffs at police being p u t m a motor vehicl . Amina and other children were there. He referred the court to the case of Moses Charles Deo v J L Qft7~| T IR 134 to underscore the necessity of an identification parade in this case. Th e Senior State Attorney for the respondents answered that he agreed with learned counsel for appellants on that identification is important and that the case of W ^ ir i ftmani v. R p 9801TLR 25fl is the authority on visual identification. But, he said, Waziri Amam deals with a situation where there are difficulties in identification. Th e learned Senior State Attorney said in this case the victims knew the appellants by name and appearances, the house was near their 42 school, the rape acts were not done once and victims were given big G, soda and money. These were not difficult conditions to require an identification parade. As the acts were done during the day, and the black clothes were not always tried on the victims faces, there would be no need for a parade. On 607 he said the explanation and evidence did not exclude the possibility that PW2 knew the house. He said learned counsel for appellants is reading too much on the line that the police were taken to 607 by the 'sister' of PW2. The latter may as well have know 607. PW2 gave evidence for two days at the end of which she was very tired. He said it is not true to say the victims never knew 607 because even the trial court was lead by PW13 when it visited the locus in quo. He concluded by saying there was no need for identification parade, and 607 was properly identified. The learned trial Principal Resident Magistrate delt with the issue of identification at great length and detail. She concluded that the victims had ample time and opportunity to identify the appellants. At one stage in her judgment, she said: "More identification o f the accused persons and the room in 607 in connection with the sex can be seen when the victims recounted o f what was done to them as horrendous. They testified o f the sex both in the vagina and anus, the oral sex, even licking the anus like was done by Gift. Even when she was testifying I could note her »■ expression o f reality o f feeling nauseated. At another stage she had this to say:- 43 "Nyange submitted that the victims were blind folded and so they could not identify the accused persons. As shown above the sex took place more than once" And again: "Naturally the first accused would not cover the faces of the victims outside his house lest it brings eye brows and the children could have felt suspicious then. So, Gift reply to cross examination that the black peaces of clothes were tied on their faces when they entered the house appears logical..." As to the identification of 607, the trial magistrate used the evidence of PW22 and concluded:- "Therefore it is the victims who testified in who (sic) pointed the 607 to this witness and that had no relevance with the identifies of the accused persons who were seen at the police station under hand cuffs as submitted by Nyange. To the contrary, they identified 607as the house where they were sexed. I do not agree with Nyange's submission that Gift and Candy knew 607 because she was taken there by Selina. I say so in lies (sic) of the reliable testimony of ASP Shilling." I would at once say that I agree with the observation of the learned Principal Resident Magistrate. I also agree with what the respondents said that there was a lot of ground for proper identification by the victims of both 607 and the appellants such that no identification parade was required. To sum it all, I am of the considered view that to bring the issue of identification as a defence was a token resistance. Many of the victims who testified said those I 44 hideous acts were done in a long spell of time. For example PWl wrote a statement and narrated what PW2 to told her: "Akaniambia kuwa kitendo hicho hakuanza siku hiyo ni muda mrefu na huwa anafanya mara kwa mara na kupewa he/a Sh.200/= hadiSh.400/= walimaliza kufanywa huwa anawanawisha" The acts were done during the day. The victims would be given money, soda and chewing gum. The house is next to the school the victims attended. There is a shop where the victims would also buy school requirements which was very close to the house. The cloth on the face was not tied every time and throughout. The reason for tying the victims with a cloth on the face would be conjecture, but may be it was one of the ways to reduce shock on the victims. In Waziri Amani the Court of Appeal of Tanzania laid down questions to be asked in disputed identity of a suspect when it said:- "We would, for example expect to find on record question such as the following posed and resolved by him (judge): the time the witness had the accused under observation, the distance at which he observed him, the condition in which such observation occurred, for instance, whether it was day or night time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or n o t" As can be noted, all the conditions of identification were met more than reasonably in this case. In Moses Charles Deo (supra) the Court of Appeal had this to say: 45 "An extra - judicial parade proceeding is not substantive evidence,, it is only admitted for collateral purposes, in the majority o f cases, it serves to corroborate the dock identification of an accused by a witness in terms o f section 166 o f the Evidence Act, 1967." To me, this means an identification parade is not a requirement in every case. I agree with the respondents that this is one of such cases where it was not necessary to hold one. The identification of the appellants and the house - 607, was more than adequate. With respect the trial court was justified to hold so. This ground of appeal also fails and is dismissed. Ground No.8 of the petition is a complaint relating to the evidence of PW24 who went to arrest the 2nd, 3 and 4 appellants. It was the complaint of learned counsel that PWl24 said he was shown a table where sex used to be done whereas the victims had all along said sex was done on a bed and on a mattress on the flow. He invited this court to treat the evidence of PW24 as coached. The respondents submitted that there is no one of the victims who said sex was done on the table. Th e learned Senior State Attorney said according to PW2 there was a table in that room where there was kept some petroleum jelly which was used to oil private parts before rape but she was raped on the bed. Th e rest, PW3, PW5, PW8, PW9, P W ll, and PW15 said they were either raped on a bed or on a mattress on the floor. PW12, 13 AND 14 were not asked this question as they were crying. Moreover, he said, actually PW24 46 never said victims were raped on a table. He said he saw a table but didn't say sex took place thereon. I think this ground of appeal is short. During his evidence in chief, PW24 said:- "The children victims showed me the room where the alleged rape took place. The room was to the right it had a bed with a mattress and mattress leaned on the wall where clothes were hanged. The children victims had said that the sex was done on a bed and on a mattress on the floor so that's why we went inside to see these things." During cross examination he said he saw a table in that house where the alleged crime was taking place." This means a table was in the house not crimes taking place on the table. Latter on he said: "All the children victims told me that they were sexed on the table. I said I saw a table but didn't say that the sex took place on the table. I was told. Taking the evidence as a whole, and taking into account what this witness said during examination in chief, this issue of sex done on the table was non existent. Indeed, if PW24 was told so, it was hearsay. The consistence of the victims was that sex was done on a bed and on a mattress on the floor. This ground of appeal must also fail. I dismiss it. Ground 12 and 13 were argued together. Learned Counsel for the appellant argued with a lot of force that the 4th appellant, being under 18 years of age should have been tried separately under the 47 provisions of section 28 of SOSPA. He should also have been tried in camera. Moreover, he complained that although this trial was supposed to be held in camera, it was not in fact so, as one Detective Stn Sgt Sabbas, not a guard, not an investigator, was allowed in the trial room. In reply the Senior state Attorney said section 28 of SOSPA was amending Section 3 Cap 13. (The Children and Young Persons Act) SOSPA did not amend the definition of child in Cap 13, therefore, the law has not been changed in substance. The new section 28 of SOSPA did not start with the words "Notwithstanding meaning that all other section have been left intact, and if a change in the main Act was envisaged, then the definition of child should have also been repealed. Therefore, a child remains a child under the ruling law, that is Cap 13. As this trial was in camera, it was proper. On Sgt Sabbas the Senior the Senior State Attorney said in Tanzania, there is no law regulating trials in camera. So even if Sabbas was there, which they deny, the trial could not be vitiated. They denied that Sgt Sabbas was there to coach'witnesses as a coached witness cannot stand such rigorous cross examination. The emotions displayed by the victims is not something to be taught, he concluded. Section 28 of SOSPA amended section 3 of Cap 13 by adding sub-section 5 which says: "Where a child of less than 18 years of 48 age is a witness, a victim an accused or a co-accused in a case involving a sexual offence, the child shall be tried in camera and separately from the adult co-accused n r the evidence o f the child shall be adduced in proceedings conducted in camera." (emphasis mine). Section 3(1) of Cap 13 has this to say. "A district court when hearing a charge a child or a young person shall, if practicable, unless the child or young person is charged jointly with any other person not being a child or young person, sit in a different building or room from that in which the ordinary sittings o f the court are held." Cap 13 defines a child to mean a person under the age of 12 years. But I do not think the definition of child under Cap 13 would find room in sub section 5 because in the latter, it clearly talks of a child of less than 18 years. Moreover, section 3(1) talks of hearing of any charge against a child or young person whereas section 3(5) refers to sexual offences. In my considered opinion, I think the key words in section 3(5) which deal with this case are those which say 'o r the evidence of the child shall be adduced in proceedings conducted in c a m e r a The framers, in their wisdom saw the difficulties of having two parallel trials where a child is charged together with adults like in this case. So, they inserted a safety catch, as it were. I do not see anything wrong with the trial the subject of this appeal. Ground 12 has no merits. I dismiss it. As to the issue of Detective Sgt Sabbas, who was the subject of ground 13 of the petition of appeal I would immediately agree with the Senior State Attorney. That this trial was conducted in camera is without question. Th a t we have no law regulating trials in camera is also a fact. A trial in camera would be one where generally the public is shut out. Th e presence of one individual or two for purpose other than causing disturbance would, in my view., not vitiate the trial. Th e allegation by the appellants that Sabbas was there to coach witnesses is far fetched and is outright rejected. This ground has no merits and is accordingly dismissed. Ground 14 of the petition of appeal says: "The trial court erred in lowering the standard o f proof for the prosecution and in raising that o f the defence. Learned Counsel for appellants referred the court, to the case of H a m isi w P ri9 9 7 1 T L R JLin supporting his assertion. He argued further that the defence witnesses were enough to raise a reasonable doubt and in fact the appellants raised more than reasonable doubt in their defences. He wondered why they were convicted. Th e respondents said the prosecution does not have to prove the case beyond a shadow of doubt but beyond reasonable doubt, a level they attained in this case. He referred the court to the case of rhanrirakan*- mshubhai Patel v . R. Criminal Appeal No.13 of 10 0 8 f .m rp n n rte d l to underscore his point and prayed that this ground be dismissed. As I said earlier, I went through the recard. Th e trial magistrate analyzed the evidence at great detail, at the end of which she accepted the prosecution case and rejected the defence. She believed the evidence of the victims, the doctor (PW 20) the investigator (PW 22) the person who made the first discover/ (P W l) and gave her reasons for such belief. It is not every defence that should raise a doubt. A defence must be viewed against the evidence as a whole. In the case of M a r.m .k .. Ham isi vj l referred above, it was stated, when quoting HassanMadenqe V^ R rv im in a l A p peal N o. 50 of 1987 (unreported). "An accused's story does not have to be believed. He is only required to raise a reasonable doubt that is to say, his explanation must be within the m m pass n f the Dossih/e in human terms. M aruzuku did not say that e v e ^ defence shall raise a reasonable doubt. Th e explanation must be viewed against all the evidence as a whole and within the compass of the possible in the circumstance. V' In the P a te l's case, (supra) the Court of Appeal, M a k a m e J A had this to say inter alia:- "As this court said in Magendo Paul a n d Another v. R [1993] TLR 2, 9, quoting Lord Denning's view in Miller v. Minister or Pensions 1947 2 All E R . 372, also quoted b y the learned trialjudge in the instant case, remote possibilities in favour o f the accused cannot be allowed to benefit him. I f we m ay add, fanciful possibilities are limitless, and it would be disastrous for the administration o f Criminaljustice if they Were permitted to displace solid evidence or 51 dislodge irresistible inferences.' This is the position of the law. Th e learned trial magistrate did not in my opinion, depart from the law on burden of proof. Th,s ground is hereby dismissed. Ground 15-20 were argued together because they very much relate to each other. Th ey all revolve on an allegation of bias on part of the trial court against the appellants, such that they were not accorded a fair trial. He listed areas of bias in the following order. 1. Appellants were denied statements of would be witnesses. 2. Statements were only given after examination in chief thus denying appellant adequate preparation. 3 The denial o f the court for the appellants to undergo medical treatment was improper. 4. An e mail written by DW22 occasioned failure of justice. 5. Appellants were denied calling police witnesses, in contravention o f section 166 o f the evidence Act and section / 34 B thereof which denied the appellants opportunity to impeach the evidence o f the victims. in support of his complaints, counsel for appellants referred the court to a string of authorities including p V ftlhert Amour r19851I LR ™ Tnm aini V, ° " 0 7 2 ! E.A 441 of O Odyek v J L Th e respondents countered these complaints by saying that the proceedings do not show any bias as the trial magistrate tried her best to accord the appellants a fair hearing. Under complaint (1) above Mr. Masara said the law under section 9 of the Criminal Procedure Act as amended by Act No.9 of 2002 only requires that, the statement of the complainant who reported the case to the police be given. In this case it was PW1 whose statement was the only one to be supplied. As to the denial of the appellants being examined, the respondents said that the issue before the trial court was not the lengh of the male organs of the appellants and as to whether they suffered from venereal diseases. Therefore refusal for them to be examined did not prejudice the appellants. And on the email, there is no evidence that the email influenced the trial magistrate, and the person who tendered it was not the recipient. Moreover, TAM W A is a pressure group and no one can limit communication among themselves. So, the respondents submitted that the email did not occasion any injustice to the appellants. On the denial to call the police officers who recorded the victim's statements learned Senior State Attorney said that the recorder of a statement under police investigations is not the owner thereof, the owner is the person whose statement is being recorded. If the appellants thought there were problems with the statements, the victims had to answer. Under Section 34 of the Evidence act, the writer of a statement can be called to testify only if the author was 53 not found. Therefore the trial magistrate was not in error to refuse the recording police officers to be called. This is without prejudice to the fact that infact some police officers gave evidence after being called by the defence. The law on bias was well stated in the Tumaini case (supra). In that case, the late Mwakasendo, Ag. J (as he then was/said: "It is o f course a well settled principle o f law that before an appellate court can nullify a judgment on the ground o f bias, there must be pro ve d to the satisfaction o f the court that there was in the case such a real likelihood of bias as would be sufficient to vitiate the proceedings or adjudication. As to what real likelihood o f bias will suffice in this regard, one has to be guided by common sense and by certain legal principles which the courts have from time to time laid down as applicable in this type o f case." And he also quoted from R. v. Justices of Queen s court [1 9 0 8 2 t .r 285. 294 where it was held: "By 'bias'I understand a real likelihood o f an operative prejudice, whether conscious or unconscious. There must in m y opinion be reasonable evidence to satisfy us that there was real likelihood o f bias. I do not think that the mere vague suspicion o f whimsical, capricious and unreasonable people should be made a standard to regulate our action here. It might be a different matter if suspicion rested on reasonable grounds - was reasonably generated but certainly mere 54 flimsy, elusive, morbid suspicion should not be permitted to form a ground o f decision." Being guided by the principles in Tumaini can we say there was bias on the part of the Principal Resident Magistrate so as to vitiate the lower court's proceedings? This is my answer. Criminal trials are governed by the Criminal Procedure Act and the Evidence Act. In my opinion, giving what the other side thinks is an unfair decision does not, of itself exhibit bias. In criminal trials, applications and objections are raised and rulings are given either way rightly or wrongly. It would be naive for a party, against whom a ruling is given, to complain that there is bias. As it was said by the learned Senior State Attorney, there are objective answers for every complaint. Starting with paragraph 5 of the complaints as tabulated above, I agree with the respondents that the statements were made by the victims and recorded by police officers. Any contradiction could therefore be extracted from the children victims. I do not think this was a genuine complaint. On the email, I do not see how the email could be attributed to the trial magistrate. This was released by a pressure group for their own reasons very independent of the trial magistrate. I do not see how it could be linked to her. Refusal to have the appellants' sexual organs examined did not in my view prejudice them. The appellants had desired to use the 55 evidence from their examination to discredit the evidence of the victims. These girls had been subjected to long cross-examination from learned counsel. The issue of the size and lengh of the male organs does not appear to have been the focus of such cross- examinations. I do not therefore see any bias on such decision from the trial magistrate. Under paragraph two of the appellants complaint, I do not see what was wrong in the court giving the statements of the witnesses to the defence after examination in chief. If they had thought they needed time to study the documents, they should have sought for an adjournment. The appellants complaint that they were denied statements of would be witnesses was well answered by the respondents. With respect, I am of the view that the respondents are correct. Section 9(3) of the Criminal Procedure Act was amended by Act No.9 of 2002. Now that section reads as follows: "Where, in pursuance o f any information given under this section proceedings are instituted in a magistrate's court, the magistrate shall, if the person giving the information has been named as a witness, cause a copy o f the information and of any statement made by him under sub- , section 3 o f section 10, to be furnished to the accused." So the statement the appellants were entitled was that of PW1 who actually triggered the investigation leading to these proceedings. They have not specifically zeroed down on this statement. I cannot put words in their mouth. 56 On the foregoing, I am not persuaded that the trial magistrate was biased in these proceedings. Bias is an issue of evidence. I do not see any evidence, from the record, that would make me agree with what the appellants are alleging. I do not think that the complaints under grounds 15 to 20 were proved. I dismiss them. Now to ground number 21. The learned counsel for the appellants framed this ground as follows: "The trial court erred in not believing the appellant's version which had only to raise a doubt and which was not disproved by evidence in reply as per section 232 of the criminal procedure Act." Arguing this ground of appeal, Mr. Nyange revisited the arguments he had advanced when arguing ground fourteen of the petition of appeal. He pressed further that the appellants had written statements at the police which were not different from the story they gave in court. It was therefore unfair to rule their testimonies in court as an after thought, more so as the prosecution did not move to impeach the appellant's statements given at the police station. Secondly, Mr. Nyange said when an accused person is questioning a witness or giving evidence of character, under section 232 of the CPA, the court can give the other side room to disprove by bringing evidence to the contrary. The prosecution did not ask the court to bring contrary evidence. Mr. Nyange's arguments were in relation of 1st appellant's assertion that he does not erect. Still the prosecution did not bring any doctor to disprove this version. 57 In reply, Mr. Masara said the prosecution did satisfy the standard of proof required in criminal trials. Under section 232 of CPA evidence in reply can only be brought if there is a matter not covered by the prosecution but brought in by the defence. In that situation the prosecution can then counter it. In this case there was no such need as the prosecution case remained unshaken. On the appellants statements, Mr. Masara said there was no evidence that the appellants gave statements at police station. ■ /■ I delt with the issue of burden of proof when dealing with ground 14 and concluded that the trial magistrate did not shift the burden of proof to the appellants. So, I will not be long here. Section 232 of the Criminal Procedure Act says: "If the accused person shall have examined any witness or given any evidence other than as to his general character, the court may grant leave to the prosecutor to give or adduce evidence in reply." (underlining supplied) The word used here is "may" meaning that it is not mandatory.. With respect, I would agree with the learned Senior State Attorney that this can be done only if there is need. If the prosecution thinks that their case is intact even after such evidence has bee given by the accused person, why should they bother? Can they be accused of not doing what they are not obliged to do? I think not. I am satisfied, on the above reasons that this ground has no merit. I >■ dismiss ground twenty one. I In ground number 22, the learned counsel for the appellants complained submitting that it was wrong for the 4th appellant, a first offender child to be sentenced to life imprisonment. He submitted further that since, according to him, the 4th appellant was not properly tried, he was not properly convicted and sentenced. The respondents said the 4th appellant was sentenced under section 131(3) of the Penal Code as amended by section 6 of SOSPA. They prayed for the dismissal of this ground as well. To answer this ground of appeal, I will go to the provisions of the law, Section 6 of SOSPA repealed and replaced Section 131 of the Penal Code. The provisions that concern us here are subsection 2 and 3 of the new section 131. They have this to say: "131(2) Notwithstanding the provisions o f any law where the offence is committed by a boy who is o f the age o f eighteen years or less, he shall- (a ) if a first offender be sentenced to corporal punishment only; (b ) ............. (c) ............ 131(3) Notwithstanding the preceding provisions o f this section whoever commits an offence o f rape to a girl under the age often years shall on conviction be sentenced to life imprisonment." All the victims in this case were under the age of 8 years. This ground of appeal cannot detain us further. I dismiss it as well. 59 In ground number 23 to which I now turn, Mr. Nyange, learned counsel, argued that the law requires that evidence should be adduced before compensation is ordered. And there must be evidence to show that compensation was justifiable. Although the court, has discretion, an important factor is to see if the appellants can pay. He said the compensation ordered was excessive. The respondents argued, in effect that the order for compensation is discretionary. But, they said, the victims were young children whose life may have been ruined for ever. The compensation of shillings two million is not excessive in the circumstances. They referred the court to the case of Swalehe Ndunaaiilunou v. R Court of Appeal (M w gnza) Criminal Appeal Nn.84 of 2002 (unreported) and concluded that in the circumstances, the compensation ordered was not excessive. This ground has given me anxious moments but at the end of the day, I have decided not to disturb the order of compensation for the reasons given by the court of Appeal in N d u n g a jilu n g u (supra). In the circumstances of this case, I do not think the sentence was manifestly excessive. In the circumstances of this case, the order of compensation may appear inadequate, but I do not think that it is manifestly so. The order of compensation was not based on wrong principle nor did the trial magistrate overlook a material factor. And finally the order of compensation is not illegal. Taking all these consideration together, I see no reasons to interfere. 60 Ground of appeal number 24 and 25 were argued together. They are rather strange. They place serious allegations at the door of the trial Principal Resident Magistrate. For the record, I think it is in the best interest if I reproduced these two grounds in extenso:- "24. The record does not contain a whole and true account o f what transpired in the proceedings including complaints, objections and statements of counsel for the appellants and the appellants themselves hence the written complaints. 25. The record does not contain a whole and true account of answers given b y the prosecution witnesses in the course o f cross examination." Counsel for appellants argued generally and invited the court to look into the record, but did not tell the court as against what other record. He prayed that this court looks into his complaints and gives guidance. Mr. Nyange then concluded his submissions by pointing out what he thought were areas that needed the court's attention. He pointed to what he thought were areas of contradiction. He complained as to why some of who he thought were material witnesses were not called by the prosecution. He also complained to the failure of some of the victims to identify the 1st appellant i.e. PW14. He also again traveled through the issue of identification and said there was no description of the appellants before they were brought to court. He concluded by saying that this case was full of lies and the appellants were not properly convicted. Mr. Mganga, learned state attorney who was assisting Mr. Masara replied on the last two grounds and on the conclusion. He invited the court to look at the record and see what it reflects and if it finds that the record reflects what transpired during the trial, these two grounds be dismissed. If any discrepancies are found, these should be weighed to see if they occasioned an injustice. On whether a court on appeal can impeach credibility of a witness in the lower court, he said as credibility is,a matter of the demeanor of a witness testifying, the trial court is best placed. He cited the case of flrlnventina Alexanda v. P Criminal appeal N f i il 34 _o f_ 2 0 0 2 _(Court of Appeal at Mwanza - unreported), and concluded that the witnesses for the prosecution were credible. On the issue of impeachment, he said, a witness can be impeached against a statement he made only when he is still in court, under the provisions of sections 154 and 164 of the Evidence Act. Therefore, it was not proper to complain that witnesses statements were not admitted as they had already left court. He cited the Odyek case (supra). Mr. Mganga submitted also that it was improper for counsel for appellants to cross examine the police witnesses without leave of the court and the police officers were not competent to tender the statements of the victims as that would offend section 34B of the Evidence Act. These statements under the preceding section could only be tendered by the police if the victims had not been called to testify- Mr. Mganga argued further that the duty of the prosecution and the defence is to assist the court to reach a just decision and not to I 62 get a conviction or acquittal at any cost. He cited Mohamed Katindi and Another v. R T19861 TLR 134 in support. On the complaint that no specific date was mentioned when the alleged offences were committed the state attorney said the issue would be whether lack of date would cause an appeal be allowed. He said it was the case for the prosecution that the offence took place between April and October. He concluded by saying that the case for the prosecution was proved beyond reasonable doubt, that the appeal be dismissed, the sentence be confirmed and varied to include strokes of the cane. As I said before, the last two grounds of appeal are abnormal. No wonder, learned counsel for the appellants merely alleges. He has not given this court any reference. How can this court know that the record it has is not a true reflection of what transpired in court? Our way of recording evidence and all court proceedings is by long hand. We do not have tape recorders that would record everything including loud laughters. The authentic record is the court record that consists of the evidence and any admitted exhibits. In criminal trials, it will start with the charge sheet. Counsel for appellants does not show this court what was left, and why. He does not tell the court which answers by the prosecution witnesses were left unrecorded. This would help the court to see if the appellants were prejudiced. Not everything said by witnesses should be recorded. Not all objections raised should be recorded. The court records what it 63 thinks is material to the justice of the case. If counsel thinks the judge or magistrate has not recorded what they think is important, he should request the judge or magistrate to record it. This record of appeal does not contain all and everything that was said- the court does separate the rice from the chaff and retain the former. I have gone through the record of the trial court. I do not see evidence of the allegation under ground 24 and 25. The proceedings, as I said earlier were charged and may be, a little turbulent. These things should not be condoned, but they do happen when sometimes counsel and the court are carried away by emotions. As long as our mode of taking evidence remains as it is, there is nothing that this court can do but say the court record remains the only authentic record where anything can be extracted from. That is the official document. Impeaching its authenticity will require more than mere assertions. Learned counsel should endeavor and use his legal knowledge to make sure that what he thinks should be on record is put on record. The presumption is that what is on record is there with the knowledge of all parties. I have mostly repeated what I said at the beginning of this judgment because the complaints in annexure A - H appear to have been made the subject under the last two grounds of appeal. I said the letters and all those documents are not properly before this court. But as I said before, going through them they do not support the allegations in grounds 24 and 25. Annexure B complains of non compliance with section 210 (3) of the Criminal I 64 Procedure Act. This was not made a ground of appeal. Some of the evidence was not read over to the witnesses, like PW l, PW4, PW7 and PW10. The other witnesses' evidence was read over to them, like PW16, PW17 and PW18. The evidence of the victims was not read over to them because of their age. I am not persuaded that this prejudiced the appellants. Annexure C, D, E and F are complaints of the way the proceedings were being conducted. They do not >■ allege non writing of proceedings but what they term as unfair rulings. The trial magistrate delt with the incidence of counsel for the appellants writing administrative letters whenever a ruling was given against him and said inter alia:- "He rushed to his office, and wrote a long letter to the administration. He reproduced what he thought was the correct version of the evidence (critic) by disclosing the gist o f the case held in camera in an open letter................ ............................. His furry had misled *• him to forget his noble duties as an officer of the court who owed a duty to his client the fourth accused person. I stand corrected that it is m y considered opinion that the proper recourse to correct proceeding is not through the administration. Proper application should be made to the court for consideration so that both parties to the proceedings may have a fair hearing before a determination of the application.... " (emphasis supplied) I think the trial magistrate approached the situation well. Court proceedings cannot be corrected administratively. 65 The allegations in grounds 24 and 25, although appear very serious are not supported by the record. I find no merit in the two grounds of appeal and dismiss them. The concluding part of learned counsel for appellants address to this court was merely a wrap up of all the grounds together. As I said earlier, the issue of demeanor if best tested by the trial court. There is a host of authorities on this as refereed to when I was dealing with grounds ten and eleven. I will say no more on this. I '/' covered the issue of refusal to summon the police detectives when I dell with grounds fifteen to twenty. I need not go into it again. The general complaint that counsel for appellants were denied the calling of police witnesses who recorded statements of the victims has been delt with. Suffice it to say that I agree with Mr Mganga as to the duty of counsel in any trial. In the Katindi case (supra) the High Court, (the late Lugakingira, J, as he then was) said: "It is the obligation of a defence counsel, both in duty to his client and as an officer of the court, to indicate in cross-examination the theme o f his client's defence so as to give the prosecution an opportunity to deal with that theme. For to withhold the position of the defence and thereby take the prosecution and the court by surprise does, to m y mind, portray a poor appreciation o f the meaning and purpose of any trial." Had learned counsel for appellants conducted their,defence well as stated above, the complaints would not have arisen. 66 Lastly I will say this. When dealing with ground nine I concluded that no proper voire dire examination was conducted but said the evidence of the victims could not be disregarded. It is to be treated as normal unsworn testimony. The trial magistrate believed the testimony of each of the 10 victims. She believed the corroborating evidence of all the witnesses including PW20. She was entitled to act on the evidence on record to ground a conviction of the appellants. That there were some contradictions in the evidence of the victims was delt by the trial magistrate when she cited the case of Hamisi Abdallah v. Sakiru Seenqi f1978] TLR NO.4 and said: "In this instant case, the testified (sic) children were raped by the mate accused persons in (sic) more than one occasion over a period of out six months. As said earlier, the key material witnesses are females (sic) of tender age. That being so, it would be less than just (sic) to expect them to remember all facts, dates and time o f the occurrences o f incidents of similar character over a period of such time." Normal differences in witnesses testimonies are a healthy attitude. Photocopy evidence should signify suspicion. I do not therefore think the contradictions pointed out by learned counsel for the appellants go to the root as to make this court interfere. I will now comment on the way the appellants were convicted. In convicting the appellants the learned trial magistrate said: "/ find that the prosecution has established its case beyond all 67 reasonable doubt I accordingly find them all guilty as charged and convict them forthwith." I think it was important for the trial magistrate to say clearly that she was finding them guilty of each count as charged. This would remove any ambiguity on the exercise of convicting. The respondents also prayed for enhancement of sentence to include corporal punishment. The appellants were sentenced under section 131(1) (3) of the Penal Code as amended by SOSPA. I think the evidence as adduced fits the definition of gang rape contrary to Section 131A, under which the appellants were charged. I substitute the section under which the appellants should have been sentenced accordingly. On corporal punishment, I think the respondents are misinterpreting the law. Corporal punishment, in my opinion only comes is when a sentence of less than life imprisonment is imposed under section 131 (1 ) of the Penal Code as amended by SOSPA. Besides no cross appeal against sentence was filed to give the appellants room to reply. The sentence is therefore left undisturbed. But for the few interferences as indicated, this appeal stands dismissed in its entirety. T. B. Mihayo JU D G E 12.01.05 68 27/01/05 Coram: T. B. Mihayo, J. For Appellants: Matambo For Respondent: Masara ass. by Mrs Mushi Appellants: Present. Judgment read in open Court this 27th day of January, 2005. T. B. Mihayo JUDGE 27/1/2005. I certify that this is a true copy of the original. S. A. Lila DISTRICT REGISTRAR 7/3/2005