20180215 TZCA Mbeya

IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA fCORAM: LUANDA, J.A.. MMILLA. J.A., And NDIKA. 3.AA CRIMINAL APPEAL NO. 612 OF 2015 PIUS RAPHAEL.......... ..................................................... ............. APPELLANT

VERSUS THE REPUBLIC............................................................................. RESPONDENT (Appeal from decision of the High Court of Tanzania, at Mbeya) (Dr. Mambi, J.l dated the 3rd day of December, 2015 in Criminal Appeal No. 52 of 2015

JUDGMENT OF THE COURT 13th & 16th February, 2018 MMILLA. J.A.: The appellant, Pius Raphael, was charged before the District Court of Chunya at Chunya in the Region of Mbeya with the offence of unnatural offence contrary to section 154 (1) (a) of the Penal Code Cap. 16 of the Revised Edition, 2002. After full trial, he was convicted and sentenced to a term of thirty (30) years imprisonment. Aggrieved, he unsuccessfully appealed to the High Court of Tanzania at Mbeya, hence this second appeal to the Court. The facts of the case were briefly that, on 8.1.2014 around 12:00 hours, the complainant, then aged 10 years, was grazing goats at Itewe Hill and was alone. Around that time appeared the appellant who was holding a knife. He ordered him to undress, or else he was going to stab him with the knife. Afraid, and in order to save his life, the complainant obliged and undressed. After that, the appellant himself undressed and immediately set upon him and had carnal knowledge of him against the order of nature (sodomy). When the appellant was through, he disappeared from the scene of crime, leaving the helpless complainant alone, unable to walk in view of the pain inflicted on his private parts by his assailant. As luck would have it, PW3 appeared at the scene of crime. The complainant narrated to him all what he experienced in the hands of the appellant. PW3 confirmed that at the

time he met the complainant, he found him crying. On asking him why, PW1 told him that the appellant had carnal knowledge of him against the order of nature, and that the boy seemed to be in in pain. He contacted PW2, Elia Ezekiel (PWl's father) by phone, and informed him of the incident. The latter, accompanied by Asungushe Luoga (PW4), hurriedly arrived at Itewe Hill where they met PW1 and PW3. PW1 informed them that Pius Raphael had carnal knowledge of him against the order of nature, and that he threatened to kill him if he did not obey. PW2 took his son home, and subsequently reported the incident to police. They were given a PF3 and sent the victim boy to the hospital for medical examination and treatment. In his defence, the appellant denied commission of the alleged offence. As aforesaid however, after full trial, he was found guilty, convicted, and sentenced to a term of thirty (30) years imprisonment. When the appeal came up for hearing, the appellant appeared in person and was not represented; whereas the respondent Republic was advocated for by Mr. Basilious Namkambe, learned State Attorney. The appellant filed a nine point memorandum of appeal. On examining them however, we found that they could be conveniently bridged into only four of them, viz.; one that the testimony of PW1 was unreliable because he having been a boy of tender age the voire dire envisaged by

section 127 (2) of the Evidence Act was improperly conducted; two that, the evidence of PW1 was not corroborated; three 3 that, his case was not investigated by the police; and four that, his defence was not considered by the trial court. Upon being invited to argue his appeal, the appellant elected for the learned State Attorney to begin, and contemplated to submit later, if need would arise. On that basis we invited Mr. Namkambe to submit first. The learned State Attorney hurried to inform the Court that he was opposing the appeal. He chose to submit first on the ground touching on the question of voire dire that was conducted in the circumstances of this case. On that point, while he admitted that the voire dire test was not properly conducted, Mr. Namkambe was quick to add that though the trial magistrate found that PW1 did not know the nature of the oath, he nevertheless found that he had sufficient intelligence and understood the duty to speak the truth, which is why he received his evidence without oath. On the basis of the case of Kimbute Otiniel v. Republic, Criminal Appeal No. 300 of 2011, CAT (unreported), he went on to submit, reliability on the evidence of that witness would depend on credibility and the probative value of his evidence, entailing consistency and coherence. Besides, he said, in terms of section 127 (7) of the Evidence Act Cap. 6 of the Revised

Edition, 2002 (the Evidence Act), once the trial court is satisfied that the complainant is a credible witness as was the position in the present case, and provided it warns itself that he/she is telling nothing but the truth, it may anchor conviction on such evidence even if it may not have been corroborated by any other evidence. Mr. Namkambe added however, that the complainant's evidence in the present case was corroborated by that of PW6 Anoa Maseta, a medical doctor who tendered the PF3 which detailed that PW1 suffered pain on his anus, a fact which suggested that a blunt object intruded into that part of the complainant's organ. For those reasons, the learned State Attorney urged the Court to dismiss the complaint that PWl's evidence was wrongly relied upon. Concerning the complaint that the investigator was not called as a witness, Mr. Namkambe submitted, relying on the provisions of section 143 of the Evidence Act, that no specific number of witnesses is required to prove any particular case; therefore that failure to call an investigator is of no effect. He banked on the case of Tumaini Mtayomba v. Republic, Criminal Appeal No. 217 of 2012, CAT (unreported) in which the Court said that failure to call an investigator was not fatal. He requested the Court to uphold his submission on the point. Coming to the complaint that the appellant's defence was not considered by

the trial court, Mr. Namkambe submitted once again that the complaint is baseless because the issues he raised in his defence were fully considered. He referred us to page 33 of the Record of Appeal. On his part, the appellant submitted that the PF3 constituted evidence which, in so far as it says no bruises or lacerations were seen, offered no proof that the complainant was sexually molested. He also contended that the evidence of PW2, PW3, and PW4 was hearsay; therefore that it ought not to have been acted upon. In view thereof, he urged the Court to allow the appeal. Like the learned State Attorney, we wish to begin our discussion with the complaint focusing on the reliability or otherwise of the evidence of PW1 in relation to the allegation that the voire dire test was improperly conducted. We hasten to agree with both the appellant and the learned State Attorney that the voire dire test was rather improperly conducted. We are saying so on account that none of the questions which were posed by the trial magistrate were intended to determine if the complainant knew the meaning of oath or affirmation, but that the trial court magistrate rushed to make his conclusion that the child did not know the nature of the oath. However, the trial magistrate made a finding that the child had sufficient intelligence and understood the duty to tell the truth. Sincerely, we agree with Mr.

Namkambe that the trial magistrate properly directed himself in letting that child give his evidence without oath or affirmation. We also agree that on the basis of what the Court stated in that regard in Kimbute Otiniel v. Republic (supra) that if the witness is found to be credible his unsworn evidence may be acted upon. In Kimbute's case, the learned trial Magistrate conducted a voire dire of the complainant who testified as PW1 under section 127 (2) of the Evidence Act and opined that she did not know the meaning of an oath, but knew the duty of speaking the truth. PW1 gave evidence and was examined by the prosecution; also that she was cross-examined by the accused. Despite the misdirection committed by the trial court in complying with section 127 (1) and (2), it relied on her evidence and that of other prosecution witnesses to convict the appellant. On first appeal, the High Court detected no errors and was satisfied that PW1 spoke the truth and nothing but the truth. It dismissed the appeal. Aggrieved, the appellant preferred a second appeal to the Court. The Full Bench of the Court observed, among other things, that:- "Equally, in our respectful view, the competency test for receiving unsworn evidence o f a child o f tender years goes to added commitment by a witness that he or she understands the duty o f speaking the truth and thus whose evidence may be relied upon.

" In the circumstances of the present case, both lower courts found, and we agree with them, that PW1 was a credible witness, and generally that he was consistent and his evidence was coherent. As already pointed out, PW1 testified that on finding him at Itewe Hill, the appellant, armed with a knife, ordered him to undress, and that for fear of his life, he obliged, he removed the clothes, after which the appellant inserted his male organ into his anus, in the course of which he experienced untold pain. He added that after the appellant had left, the pain persisted and he was unable to walk. He remained there helplessly until the arrival of PW3 to whom he divulged his ordeal in the clutches of the appellant. When PW2 arrived at the scene of crime, accompanied by PW4, the complainant repeated to them the narration he gave to PW3 that Pius Raphael did that shameful act to him. Likewise, he told them that the appellant threatened him with a knife he was armed with, and that since he was afraid to die if he resisted, he obeyed the appellant's command. This was confirmed by PW2 and PW4. We wish to point out at this stage that the early naming by PW1 to PW2, PW3 and PW4 that he was sodomized by Pius Raphael confirmed reliability of his evidence. We have in mind what was expressed in the case of Wangiti Marwa Mwita & others v. Republic [2002] T.L.R. 39 that:- "The ability o f a

witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability, in the same way as an unexplained delay or complete failure to do so should put a prudent court into inquiry. " On the basis of the above, the trial court as well as the first appellate court correctly assessed PW1 to be a truthful, believable, thus a credible witness. We are also in agreement with the learned first appellate court judge that in terms of the provisions of section 127 (7) of the Evidence Act, PWl's evidence was sufficient to anchor conviction on its own because he 9 was a credible witness, particularly so because the trial court had warned itself that his evidence was nothing but the truth. In terms of that very section, if his evidence is rated as such, it can be relied upon without regard to other evidence to corroborate it. That section provides that:- "(7) Notwithstanding the preceding provisions o f this section, where in criminal proceedings involving sexual offence the only independent evidence is that o f a child of tender years or o f a victim o f the sexual offence, the court shall receive the evidence, and may, after assessing the credibility o f the evidence o f the child o f tender years of as the case may be the victim o f sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons

to be recorded in the proceedings, the court is satisfied that the child o f tender years or the victim o f the sexual offence is telling nothing but the truth." An inspiration that PW1 was a reliable witness may be drawn from the case of Selemani Makumba v. Republic [2006] T.L.R. 379 which nevertheless concerned rape. It was underscored in that case that:- 10 "True evidence o f rape has to come from the victim, if an adult, that there was penetration and no consent, and in case o f any other woman where consent is irrelevant, that there was penetration," To repeat what we have said, PWl's evidence could be acted upon without requiring corroboration. However, his evidence was clearly corroborated by that of PW6. As aforesaid, PW6 was the medical doctor who examined the complainant and filled the PF3 which was tendered in court as exhibit PEI. He testified that in the course of examining the complainant's anus the latter complained that he was experiencing pain and was crying; something which suggested that the complainant's anus was tempered with. The PF3 he filled said there were no bruises, abrasion or lacerations. It similarly indicated however, that he observed that a blunt object intruded into that part of PWl's organ. Indeed, that corroborated the complaint that he was sodomized. As regards the complaint that his case was not investigated by the police, Mr. Namkambe

submitted that because no particular number of witnesses is required for the proof of any particular case as envisaged by 11 section 143 of the Evidence Act, the complainant is without basis. Section 143 of that Act provides that:- "Subject to the provisions o f any other written iaw, no particular number o f witnesses shall in any case be required for the proof o f any fact. " See also the cases of Tumaini Mtayomba v. Republic (supra), Omari Mrisho v. Republic, Criminal Appeal No. 38 of 2012, CAT and Amirti Ismail v. Republic, Criminal Appeal No 178 of 2015, CAT (both unreported). It was stated in the case of Omari Mrisho v. Republic (supra) that:- "On the first ground, the complaint is that although the offence was reported and investigated by the police, the investigator was not called to testify. The iaw is now settled that, in terms o f section 143 o f the Evidence Act Cap 6 R.E 2002, no particular number o f witnesses is required, although in certain circumstances, an adverse inference may be drawn against the prosecution if, for no reasonable explanation, an essential witness in a case, who is available, is not called to testify (See Aziz Abdallah v. Republic [1991] T.L.R. 71." 12 In view of the above, we agree with Mr. Namkambe that this complaint lacks merit. The last complaint alleges that both courts below ignored the appellant's defence evidence. In this regard, we

wish to restate the principle that in any trial, a magistrate or judge is not expected to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence. The trial magistrate or judge is duty bound to deal with the prosecution and defence evidence and then arrive at the conclusion after analyzing all the evidence before him. Failure to consider the defence evidence may cause prejudice to the appellant - See the case Hussein Idd and Another v. Republic [1986] T.L.R.

166. We have carefully gone through the judgment of the trial court in the present case. We note that the appellant's defence constituted a general denial of commission of the offence, and he attempted to discredit the evidence of the prosecution witnesses. We have found however, that as reflected at page 33 of the Record of Appeal, the trial court considered the appellant's defence but rejected it on the strength of prosecution evidence. 13 In the circumstances, we hold firm that the complaint that his defence was not considered is devoid of merit. That said and done, we find that the appeal lacks merit and we dismiss it in its entirety. DATED at MBEYA this 15th day of February, 2018. B. M. LUANDA

JUSTICE OF APPEAL B. M. MMILLA

JUSTICE OF APPEAL G. A. M. NDIKA

JUSTICE OF APPEA I certify that this is a true copy of the original. P. Wv BAMPIKYA

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL 14