20091028 TZCA Tabora

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IN THE COURT OF APPEAL OF TANZANIA . ATTABORA . (CORAM: KIMARO, J.A., MBAROUK, J,A., And MASSATIIJ,A.) CRIMINAL APPEAL NO. 457 OF 2005 RAJABU ...............APPELI_ANT

VERSUS TI-I EREPUBLIC... .... ••••••••••,••••••••••••••••• U!U!!- (Appeal from the judgment of the High Court. of Tanzania at Tabora) (Mziray,J.) date 27th June, 2007 in • . Criminal Appeal No. 31 of 2006 - .

JUDGMENT OF THE COURT 22 nd October & 291h October,2009 KIMARO. J.A. The appellant was charged and convicted in the District Court of Tabora of the offence of rape contrary to sections 130 and 131 of the Penal Code, CAP.16 R.E.2002 as amendecF by sections 5 and 6 of the -, Sexual Offences (Special Provisions) Act No.4 of 1998. He was alleged to have carnal knowledge of Hidaya Ally a child aged six years on the 14th day of June 2005 at 13.00 hours. He was sentenced to life imprisonment. On appeal to the High Court the conviction and the sentence were sustained. Stilt aggrieved, the appellant has filed this second appeal. The àellant in the Court filed four grounds of appeal but in actual fact they are only three because grounds one and three are the same. The respondent 1 : Republic was represented by Mr. John Rwabuhanga, learned Senior State -; Attorney. In his first and third grounds of appeal the learned first appellate judge is faulted for sustaining the decision of the trial court while there was no corroborative evidence to support the evidence of PW3. In his second ground of appeal the complaint is that the appellant was wrongly sentenced under the Minimum Sentences Act, 1972 which does not apply to an offender who is below 18 years. As he was below the age of 18 when the offence was committed, that sentence of life imprisonment should not have been imposed. As for the

last ground of appeal the appellant says that there was no sufficient evidence to hold him liable for the commission 2 of the offence of rape and he ought to have been given a benefit of doubt and be acquitted. Before going to the grounds of appeal we think it is important at this juncture to see, albeit briefly, the evidence upon which the appellant's conviction was based and sustained by the first appeal court. The prosecution evidence was that the appellant Wiàn 14th JuneO05 at around 12.00 found by Sada Mohamed (PW3) "flagrante delicto" having sex with the complainant (PW2) in a toilet of her neighbour. The appellant was known to PW3. At that material time,PW3 who was a house wife went outside to wash her dishes. According to the witness, she saw clothes outside the toilet of her neighbour which made her suspicious. When she went inside the toilet she found the appellant holding the complainant on his lap and he was raping her, while the complainant was crying. PW3 had to use force to rescue the complainant from that cruel act, by separating her from the appellant. The appellant could not be arrested there and then because he overpowered PW3 as she tried to hold him and managed to run away, leaving behind his shoes commonly known as" yeboyebo" and "kanzu". The two items were admitted in evidence as exhibit P1 collectively. 3 I Describing how she was taken to the toilet, the

complainant (PW2) said while she was at Aman Street at Chemchem area within Tabora Municipality, she was grabbed by the appellant who removed her knickers and left them outside and carried her to the toilet. Then the appellant undressed his trouser and had sex with her. Her further testimony was t-hat-as4he--appellant-raped-her 1 she-felt-pain, cried,and-.bIed-i.n the nose- and mouth and it was PW3 who saved her by separating her from the appellant. Like PW3, the complainant said she knew the appellant before the incident. PW2 was medically examined by Uswege Mwaijonga (PW4) who found the hymen ruptured and blood streaming from the vagina, the PF3 form was admitted in court as exhibit P2. In his defence the appellant though he denied the commission of the offence, he admitted being found naked in the toilet. He also admitted the confrontation that occurred between himself and PW3. Equally admitted by the appellant was the presence of the complainant at the scene of crime but his explanation was that she was peeping at him in the toilet as she stood at the door. In response to that he shouted at her and rebuked her. It was at that time PW3 appeared. With that evidence the trial court was satisfied that the prosecution case was proved beyond reasonable doubt. The appellant was then convicted and sentenced accordingly. The first appeal court in sustaining the conviction remarked

saying: - "The conviction in this case is based on the evidence of PW2 and PW3. In the evidence of PW2 she said that the appellant grabbed and undressed her panties then took her to the toilet and raped her. The trial court found that despite the fact that PW2 was a child of tender age but she gave consistent evidence. The court cannot interfere with this finding. The evidence of PW2 has been materially corroborated by PW3 who saw the appellant in the actual act of raping PW2. The evidence of the two witnesses tallies in all respect. It is further corroborated by 5 - ( the evidence of PW4, the Medical Officer which has suggested that there was raping ' Coming back to the grounds of appeal, the appellant has opted to first hear the response from the respondent before giving an elaboration anthem. On the part of the respondent, the learned Senior State Attorney supported the conviction and the sentence. Arguing the grounds of appeal generally, the learned Senior State Attorney said the evidence of PW2 and PW3 was elaborative enough to prove the charge against the appellant beyond reasonable doubt because the act of rape was eye witnessed by PW3 and is corroborated by the medical report (exhibit 1 32). He cited to us the case of Seleman Makumba Vs RCAT Criminal Appeal No.94 of 1999 (Unreported) which said in rape cases the evidence to prove rape is that of the victim herself, an

adult where consent is in issue , and any other woman where consent is irrelevant. Regarding the age of the appellant and the sentence that was imposed on him, Mr. Rwabuhanga said the Minimum Sentences Act, 1972 was not applicable as he was not charged with an offence falling under the said Act. He said the provisions of the N. 0 law under which the appellant was charged prescribed the sentence applicable when the offence is proved. Responding to a question raised by the Court on whether "voire_dire" examination of the complainant (PW2) was properly cOnducted under section 127(2) of the Law of Evidence Act CAP.6 R.E.2002, the learned Senior State Attorney admitted that there was non-compance with that provision but he was quick to point out that the omission was not fatal. Equally admitted by the learned State Attorney was the omission by the o courts below to consider compensation for the complainant. The learned State Senior Attorney requested the Court to correct this anomaly. He prayed that the appeal be dismissed. In reply the appellant pointed to the Court that there was a contradiction in the evidence of PW2 and PW3. While PW2 said she bled in the nose and the mouth, PW3 said that the complainant was bleeding in her private parts. He wondered how the offence could be said to have been proved beyond reasonable doubt under such circumstances. As for PW3 the appellant said

it was her evidence that she suffered from heart attack and he wondered how she could have helped PW2. Commenting on the evidence of PW4 the appellant said at the time of giving his 7 U testimony he was drunk, so he was not a person to be trusted. He prayed that the appeal be allowed. In disposing of this appeal we will start with the question we paused on the correct procedure of taking "voire dire" examination on a witness of tender age. True, as admitted by the learned Senior State Attorney, the trial court did not follow the proper procedure for conducting "voire dire" examination. The questions paused on PW2 and the answers she gave at the trial Court were supposed to be reflected on the record. This would have enabled the appellate court to say whether from the answers by PW2 1 she possessed sufficient intelligence and understood the meaning of speaking the truth. That is the essence for conducting "voire dire" examination. The said provision states that:- "Where in any criminal cause or matter a child of tender age called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be received though not given on oath or affirmation, if in the opinion of the court, which opinion shall be recorded in the () proceedings, he is possessed of sufficient intelligence to justify the receipt of his evidence, and understands the

dutyofspeakingthe truth. (Emphasis added) qtinsthwitness sked and the answers he/she gave it becomes difficult on appeal to ascertain whether the witness was competent to testify, let alone his/her understanding the duty to speak the truth. It is very important for the - trial court to comply with the procedure. See the cases of Marco Gervas Vs. The Republic, Criminal Appeal No.54 of 2001 (Unreported). Nyasani s/o Bihana V.R (1958) E.A 190 and Kibangeny Arap Kolie Vs. R (1967) E.A.

403. The learned judge on first appeal was satisfied with the procedure followed by the trial court but on our part we say it was improper for the trial court not to put on record the questions and answers. However, as we shall soon show, the omission to reflect the questions and answers does not prejudice the prosecution case. Let us now move to the grounds of appeal. In the first ground of appeal the complaint is that the evidence of PW3 was not corroborated. Admittedly, in convicting the appellant the trial court relied essentially on the evidence of PW2 and - PW3. Itdid not putweight on the evidence of PW4 because the trial magistrate was of the opinion that PW4 was drunk at the time of giving his testimony. However, on first appeal the learned judge re-evaluated the evidence and found PW4 a credible witness. He said the evidence of PW4 corroborated the evidence of both PW2 and PW3. Even if we discount the evidence of PW2 because of non compliance with theprovisions of section 127(2) of the Evidence Act, CAP 6 R.E.2002, we - agree with the learned Senior State Attorney that the evidence of PW3 who was an eye witness to the rape was sufficient to convict the appellant. In the case of Speratus Theonest © Alex Vs R CAT Criminal Appeal No. 135 of 2003 (unreported) this Court observed that the prosecution does not have "the obligation to produce witnesses irrespective of

consideration of their number" for "the evidence has to be weighed and not counted". It means that it is not the number of witnesses which matters but their credibility. That is why it is provided under section 143 of the same Act that "no particular number of witnesses shall in any case be required for ILI the proof of any fact". As we have already shown the evidence of PW3 was corroborated by that of PW4. In this respect we find the remarks made by the trial magistrate in respect of PW4 unfounded because there was no evidence to show that at the time he examined PW2 he was drunk and even the appellant did not challenge the findings on exhibit P2 when it was admitted in evidence. The appellant in replying to the submission made by the learned Senior State Attorney said there was a contradiction in the evidence of PW2 and PW3 in that PW2 said that she bled in the nose and mouth while PW3 said she bled in her private part. When dealing with this aspect of the appellant's concern ; the learned judge on first appeal said:- "The appellant tried to discredit the evidence of PW2 that she was coached when she said that she b/ed from the nose and mouth. Such assertion in my view cannot be taken that the girl was coached in her evidence. The truth will remain that the appellant raped the girl and was seen (fraglant dellcto)" We entirely agree with the learned judge on first appeal

that whatever PW2 said does not affect the prosecution evidence. When we paused a question to the appellant on whether he was at the scene of crime he replied positively. He also admitted therebeinaconfrontation between him and PW3. If PW3 saw him in action committing rape he was propetly convicted of the offence of rape._ ti0n_to be too minor to affect the prosecution case. The appellant also said that, in view of the fact that PW3 said she was suffering from heart attack, it means that she was not able to assist the complainant. What is on record is that PW3 said she failed to assist PW2 after the rape because she had a history of heart attack but she did not fail to assist her when the appellant raped her. We thus find this ground has no merit and it is dismissed. The second ground of appeal was on the sentence which was imposed on the appellant. His concern was that because he was a juvenile when he committed the offence, he was supposed to be exempted from the application of the life imprisonment sentence. We need not waste time dwelling on this ground. It suffices to say and with respect to the learned Senior State Attorney that the appellant was not charged with an offence falling under the Minimum Sentences Act, 1972 As already shown, he 12 - I C) was charged under sections 130 and 131 of the Penal Code as amended by sections 5 and 6 of the Sexual Offences (Special

Provisions) Act 1998. Sub-section 3 of section 131 provides specifically that where the offence of rape is committed to a girl below the age of ten the only sentence to be imposed is life imprisonment. The complaint who was the victim of the rape was aged six years when she was raped by the appellant. The appellant was rightly sentenced to life imprisonment. This ground too fails and it is dismissed. In his last ground of appeal the appellant contends that there was no sufficient evidence to convict him. But as we have already shown the appellant was seen by PW3 in the act of raping the complainant (PW2). We need not say more. All the grounds of appeal have failed. In the process of hearing the appeal, we noted that neither the trial court nor the first court on appeal granted compensation to the appellant for the injuries suffered for the rape that was committed on her. As we brought this to the attention of the learned Senior State Attorney, he agreed that there was that omission. He urged us to invoke the powers of the Court on revision, to order compensation. We indeed agree that this was a fit case for granting compensation to the complainant for the injuries 13 ( -o and the psychological effects she suffered from the rape. Using our revisional powers under section 4(3) of the Appellate Jurisdiction Act, CAP 141, R.E.2002 we order the appellant under section 348(A) of CAP 20 R.E.2002 to pay to the complainant l-lidaya D'O Ally, a compensation amounting to one hundred thousand shillings only.(Tshs.100,000/=). With what we have said above, the appeal fails and it ir. its entirety. The appellant is ordered to pay compensation to the complainant as indicated. DATED at TABORA this 281h day of October, 2009 N.P. KIMARO

JUSTICE OF APPEAL M.S. MBAROUK

JUSTICE OF APPEAL S.A. MASSATI

JUSTICE OF APPEAL i certify that this is a truecOPY of the original. (3 .S. MGETTA )

DEPUTYREGIST 15