20141022 TZHC Mwanza

I .,1 IN THE HIGH COURT OF TANZANIA. AT MWANZA - HIGH COURT CRIMINAL APPEAL NO. 116 OF 2013 . (Original Criminal Case No. 42 of 2011 of the District Court of Musoma District at Mara).• ,·. NYONGO MKIRA TUBETI ... p •• ~ ~· •• •• ••• •• · ••• •• •••.••••• • ·····;···APPELLANT VERSUS THE REPUBLIC. a ■■■■■■■■■■■■■ • ■■■■■■ ■■■ •••••• ■■ ■■ ■■ ■■ ■■■■■ ■ ■■ ■ ■■ ■ w ■ RESPQNDENT 1 JUDGMENT BUKUKU, J.: f, · · The District Court of Musoma at Mara Region found the appellant guilty of committing an unnatural offence, contrary to section 154 (l)(a) of the Penal Code Cap· 16 R.E. 2002 .. It sentenced him to a thirty year term of imprisonment. Aggrieved, , the appellant appealed to this court. In his memorandum of appeal, the. appellant filed five grounds of grievance. In . the first ground, he: laments -that, the··.trial .court- .convicted him for unnatural offence without proof of penetration. Second, that, there was ' contradictory evidence. of the. prbsecution 'Wh_ich; was r~lied on.; Third, that . .. the trial court relied on the uncorroborated unsworn statement of the prosecution main witness who was a child of tender age; four, that; the trial court erred by making assumptions and thus reaching a conclusion 1 that the appellant'$ . male organ'· was. inside . . . : . . , th~ complainants •.. . anus while the ·- - same \!Vas. not proveq_ by any of th~ prosecution wi_tness; and finally,· that there .wps no identification of th~ appeilant ~t the scene of crime. In order to prove its casei the prosecution called four ( 4) witnesses. PW1, Juliana Julius @ Khadlja Hussein is the victim's mother. She told the court that, on 10th February 2011 at around 16.00 hours she returned to her house. Earlier on, she had gone to visit her mother in law who was sick. Upon arriving home, -she found the doors of her two houses open, while when she left, she had closed her bed room by using a padlock. tl.ccording to PW1 all.the children had gone to school. She then called one of her children, the complainant herein named Fatuma. No answer came , forth. Narrating further, PW1 testified that, she left her luggage at the · ' door and proceeded to the other house where she heard someone crying. · Upon approaching the house, she ·saw the appellant coming out of the house while running. ·FtWl then entered inside and found PW4 crying. VVhen PW·l asked her why . she was crying, she . told PW1 that the appellant had sodomised her. PW1 took PW4 outside and upon checking her, ·she saw her skin tight and her underpants torn and in her private 2 parts there were male semen mixed with faeces and others were seen on c ~ ~· " f , ,t, 1, • ,t , • . 0 I , the skirt and khanga. PW1 further na'rrated that,. upon·· seeing that, she raised an alarm, people respondent and they started tracing the appellant who wa_s ,later apprehended at _the milling ·machine. They took him to ·pw1's house and . thereafter, when they were taking the appellant to the village offi~es they met with the police who _were in ·a van. The police took the appellant to the police and the complainant was given a PF3 on 10/2/2012 and was taken to hos pita I. PW2, Pili Petro told the court ho\"-' on the fateful day whi!'e going to fetch water she saw the accused running and as she neared PWl's house, she h~ard her shouting_ for help. PW2 also narrated as to how the appellant was arrested, taken to PW1's house-and hoyt he ended in police custody. · PW3, Wambura Chacha also testified. He told the court that, on the fateful day around 19.30 hours, while grazing his cattle, he heard a· woman shouting for help. PW3 walked to· where he· h~ard the shout On hfs w·ay, as. tie was approaching, he saw a man dressed in a blue· shirt with a black ',. , . 3 trouser .. running while being pursued by PW1. PW3 then joined the group ' and riarrated how they arrested the appellant at the milling machine, and how he was taken by the police. Finally, the cornplaJnant, Fat~~a Hussein testified as PW4. her testimony was h~ld jn camera since she was a chlld of tender age. Voire -• • •' 1 ' ~ ' • ' dire ·was conducted whereby PW4 told the. court that she does not know how to. read or write, that she goes to church every Sunday. She said she ' did not know the year in which they are and that she does not know the·· ; ' . meaning of oath or the meaning of telling the truth or telling lies. . . - Having·_ heard P.W4, the court concluded. that, PW4 appears to have iow memory but appeared in demeanor to be· capable of knowing what she speaks about and as such, PW4 was allowed-to make/adduce unsworn . ·evidence. · ·. In her unsworn evidence PW4 toid the cou·rt that, on the fateful day, she was at home and that the appellant came and asked PW4 the where abouts of her parents. Upon· ·being toid that they had gone to visit a sick person, the appellant requested PV\14 to give her a mat to rest. PW4 obliged.: Later the appel!ant requested some· water· to drink: PW4 again 4 obliged and took the ~ater to~the_: appel!qnt:_ As ~~e \;'/~? handing th~ ~ater . ~ .. l . . • • • - ' ' . I I to the appellant, the appella,:1t g.rabbed,.PW4,. tor~_her lJD.~erw_ear,. ~oo.~ out_ ... , ... ••., • ~ - . . . ' ' . . . . . ' . • • • : . ' • t • his male organ and sodomized PW4. According to PW4, when the _ ' • : • •• • • • 'I' I • • • • ~ r ~' 1 ' ,~ 11 ' • f , . · appellant heard PW1 calling her, the a_ppellant released her and ran away. .. .. . .PW4 further told the court that, upon her mother s~outing for h~lp, ' I · • •• • ' '.0 ' 7 • • • 1 .,. • ' i. • people gathered at the house, and upon being examir)ed; she was found • • , ' ,. ..: • • • ' ~ ' • • •I ~ ~ • - • , • • . . with. faeces in her private.- parts, and she was taken . to hospital ._ the •.. ' • .• . • • f ~ . '... .. •.• • following day. . • • , . • . ,. • I • : .. , ,i • When the appeal was called on for 'hearing, the app~llant appeared in •.. _. person, unrepresented. The Respondent ,I,,,,: Republic; . - • was. • represented .•,.... • ,. f'- . .- ,. • by.. (Mr . • . - . Obad_ia Kajungu, Learn~d State Attorney. · · • • . . . . 7 • .,;_ ' • . .I • . .• • . Arguing his appeal, .the appellant submitted that, there-· was· • inconsistencies in the prosecution testimonies. Secondly, he argued ,that, there were no exhibits tendered iri c9urt to. implicate him. Thirdly, the . . ' ... "' . . . ..... . . ... ~ - .,,;.. . . . appellant Submitted that, PW4 did .. not . swear or taken. an oath.... He. also & • •• • 1 • I • \ ... • ~ - • • ;, • , • lamented that, there was no evidence tendered to show that his male . . .-': . .. . . . . :· .· - : . . . . . . '. . . ; . '·:.: , •_.·' ·,; - . organ was inserted into . PW4's anus and .. finally, the . appellant .. ., argued . that,. ' . :. '· .. - .• . •, .. . 5 nobody testified that he was at the scene of the crime since he was arrested at the milling machine ..... t When. arguing the· appeal;- Mr. Kajungu supported the appeal. His reasons being that, ·while during the trial .-it was alleged that the appellant had confessed to have committed th~ ·act, there ·was no caution statement tendered in·court to ccirroborate that. He -further argued that, the slippers which were alleged to belong to the appellant were not tendered. in .. evidence. With regard to proof of penetration, Mr. Kajungu argued that, the PF3 was not tendered, and for that matter, the .prosecution evidence was weak. With the above observation, Mr. Kajungu submitted that, the ~ ' ·• prosecution ·has failed to prove its case as per the required standards. As such, he prayed that the appeal be albwed . •,.,;i:"' After . scanning the prosecution evidence, ·I have found myself in agreement with the position taken by Mr. Kajung_u. Settled law is that~ to . prove theoffence of unnatural offence, it is not enough for the witness to . .- make bare :assertions that tile prosecutri~ was raped. Evidence ought to be ' ··' ' . given to prove penetration, even• to the siightest degree, of the accused's penis into the ·prosecutrix's vag.ina (See: Exhibit B. 9690 SSGi Daniel Mshambala \/.R, Criminal Appeal No. 183 of 2004 and Godi 6 Kasenegala V.R, Crimh:,al Appeal No .. 10 if • • •• • • : -~. ' ., of 2008 .both unreported). . "~ - • t , !. •. . . \ . _.. .. · In Mshambala's case, the Cou·rt of Appeal explicitly stated that, in a ,rape. . • • ' • . ' • . f .• • .• ..: case, the alleged victim must be more forthcoming i(l her evidence" and 11 . .) ... "explain whether or not the appellant inserted his penis into her vagina,'in . . ' . order to enable the court to make a meaningful finding on whether or not .. . ., . . , ra_p~- was committed. I subscribe_ wh~lly to this holding. The evidence of ,,. . ' (. ·• PW4 Fatuma in this case failed t~ meet t~is test. On this ground alone, I . . ·would have been prepared. . to quash the appellant's conviction .' for. . • • .• . • : ,, C unnatural offence.· But there is another equally ·compelling reason why this appeal should succeed. In this case, the prosecution . , side led four witnesses, i~~ludi~g the ' " ' , prosecutrix. PW1, told the court that, in the following mornin.g, she went to the police station in company of her- ·young sister. She found PW4 at the . . hospital upon being given a PF3 on the fateful:day, According .to PW1, .she ; was not present when the PF3 was issued. to _PW4. On .her part, PW2 told . . the court that,_ while in the company· of PW4 .the victim; they were taken .. by. the police van up to the police -station where. PW4 was·.:given a PF3 and · ....... was sent to the hospital where she got :examined -and. then she was given treatment. Upon being cross examined,· PW.2 told the court that, PW4 was . . .. 7 taken to t·he hospit_al th~t' sa~e ·night, b~t could not· be examined on that day becau-~e aUegedli:,;ti=i'e doctdr in charge was in the emergency room an·d so were advised to''return the following day to which they did . .,' "_.,- . .. : :~ ,.,-~ ... ~~ ~ 0 • . On the same. ts~~e, PW4 the prosecutrix herself, told the court as ;~ " . '. ' ' ' ~ . . follows:- ·~ ............... :.·after such··examination mother did put me in the house/· and she did not taken (sic) me anywhere. In the next day I was brought in the hospital where I was exan1ined. !stayed in hospital for only one day." , With_ the above contradicting pie~es of evidence, one is at a loss as to. which one· is the correct position.· If at all the offence was committed at ½7.00 hours as alleged in the. charge shee( why was PW4 not rushed to the hospital at the earliest opportune time. PW4 tolc;f the court that, at the hospital she_· was examined. Unfortunately the _prosecution failed even to . . summon the doctor who attended .PW4 to prove that indeed the offence of sodomy was committed against PW4. Essentially, this is a case which rest~ wholly on the credibility of witness~~- All things being equal, I am aware that the credibility of a ~ '. _, . ":,.::··~.., . • ! . 8 . . . witness is: always in the province ,of a tri 91 couit.s' I have no dearth c;>f authorities on this aspect. One· such authority is Omari Ahmed V. Republic [1983] TLR 52. But if it is shown tha_t th~trial court has fatled to take some material points or circumstances into account, or that, there is misdirection or non direction ori the evidence of the lower court, or that the lower court has misapprehended the substance, nature and quality of the evidence, an appellate court is entitled to look at the evidence and make its own findings of fact. (See: Salum Mhando V. Republic [1993] TLR 170. ·,r The ot~er inconsistency is about the time when the incident ocdurred. While PWl, PW2 and PW4 testified that the incident occurred at 17.00 hrs, PW3, testified that, the incident occurred around 19.30 hours while grazing his cattle. From the above therefore, I find that the prosecution· case ii. fla.wed by inconsistencies and contrad.ictions which goto 'the extent of i.mpeaching . ' .. ''/ . ' ' ,· "· ' ' ' .,'.· '' • th?· credibility of the four prosecution Witnesses. Had the trial court carried out a judicial evaluation of the evidence, it could not have· failed to detect , ' I , these patent contradictions which ar_e bordering on blatant lies. Had 'the 9 trial court done so,.,·it would definitely not have held that the prosecution evidence was credible. ·· For the foregoing· reasons, I have 'tou~d myself in full concurrence· with the submission ·of Mr. Kajungu that, the· prosecution abysmally failed to prove the charge against the appellant. I, accordingly allow the appeal' in its entirety by quashing the conviction and setting aside the sentence imposed on the appellant. The appellant is· to be released from custody forthwith unless he is otherwise lawfully held. A.E. BUKUKU JUDGE Delivered ·at Mwanzc\ This 22nd October, 2014 · 10