Juma Choroko v. Republic, Cr no 23 of 1999 (defilement)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: SAMATTA, C.J., MROSO, J.A. AND MUNUO, J.A.)

CRIMINAL APPEAL NO. 23 OF 1999

BETWEEN

JUMU CHOROKO…………………………………..APPELLANT

AND

THE REPUBLIC……………………..…………….RESPONDENT

(Appeal from the decision of the High Court
of Tanzania at Dar es Salaam) 

(Mr. Kajeri, - PRM – Extended Jurisdiction)

dated 1^st day of September, 1995

in

High Court Criminal Appeal No. 68 of 1995

J   U  D   G   E   M   E   N   T

=========================

MUNUO, J. A.:

        The appellant Jumu Choroko was in Criminal Case No. 554 of 1993 in the District Court at Ilala in Dar es Salaam Region, charged with the then offence of defilement of a girl  under the age of fourteen years c/s 136 of the Penal Code, Cap 16 of the Revised Laws of Tanzania.  It was alleged that on the 2^nd day of November, 1993 at about 18.00 hours at Kipawa area in Ilala District the accused had carnal knowledge of Agnes Lyema, a girl of nine years.  He was convicted and sentenced to 20 years imprisonment.  Aggrieved, the accused unsuccessfully lodged Criminal Appeal No. 68 of 1993 in the High Court at Dar es Salaam.  Subsequently, the accused brought the present appeal to challenge the conviction.  The appellant was unrepresented.  The Republic was represented by Miss Malecela, learned State Attorney. 

        The then nine year old Agnes Lyema testified as P. W. 1.  She stated that on her way home she encountered the accused who lived in the neighbourhood and whom she knew before because she had previously sold some empty tins to him.  The accused admitted the same in his defence.  It was the small girl’s evidence that the appellant grabbed and threatened to harm her, if she cried out.  She said the appellant took her to his room and raped her.  Later some two women namely P. W. 2 Mwanzoni Athumani and P. W. 4 Mwanahawa Shabani ordered the appellant to release the victim whom they took to the CCM office where her mother, P. W. 3 Flora Raphael, and her father, P. W. 5 Titus Lyema, found her.  They took her to the police.  The latter issued a PF. 3 to her for medical examination.  The PF. 3,  Exhibit P.1, shows that the victim had:

“Swollen oedemaline.  Laceration in the vulva.  Bleeding.  Spermatozoatt R/O HIV in the concerned man.”

Thereafter the appellant was charged with the defilement of the small girl, Agnes Lyema.

        The appellant categorically denied the charged offence.  He claimed that the charge was fabricated by his enstranged lover, the sister of P. W. 2 Mwanzoni Athumani who had threatened to fix him.

        In the present appeal the appellant complained that the trial court denied him his right to call the doctor who examined the victim so that he would cross-examine him on the findings endorsed on the PF. 3.  Miss Malecela Learned State Attorney, onceded that the trial court’s omission to inform the appellant of his right to require the attendance of the medical doctor as stipulated under Section 240(3) of the Criminal Procedure Act, 1985 could have prejudiced the rights of the appellant.  The Republic nonetheless maintained that the circumstances of the case plus the testimonies of the two women, P. W. 2 and P. W. 3, who retrieved the complainant from the room of the appellant fully supported the conviction.

        In the second ground of appeal the appellant faulted the learned trial Senior Resident Magistrate at the material time for erroneously convicting him on the evidence of a child of tender years without complying with the provisions of Section 127(3) of the Evidence Act.  He further criticized the learned trial magistrate for acting on the evidence of family members who are likely to be biased to his disfavour.

        The Learned State Attorney correctly observed that in law, the evidence of family members is acceptable because where only family members witness an event, they shall be the relevant witnesses for they eye witnessed the matter.  Miss Malecela cited the decision in the case of Ethiyo Yombelo versus Republic Criminal Appeal No. 49 of 1995 Court of Appeal of Tanzania at Mbeya [unreported] wherein the concept of family members evidence sustaining a conviction was affirmed and applied.  The testimonies of family members can ground a conviction because those are the relevant witnesses where crime occurs in the family, and in those circumstances, in the absence of independent witnesses.

        At the commencement of the hearing of the appeal the Learned State Attorney raised a preliminary objection to the effect that the appeal is time barred because the appellant did not file his memorandum of appeal within fourteen days as required under Rule 65(1) of the Court of Appeal Rules, 1979.  On this the appellant countered that he did promptly ask the prison officer to file the memo of appeal for him but would not know if the said prison officer delayed the memorandum of appeal.

        We noted that the appellant is protected by Rule 68(1) of the Court of Appeal Rules, 1979 which provides;

“68.  (1)    If the appellant is in prison, he shall be deemed to have complied with the requirements of Rules 61, 65, 66 and 67 or of any of them if he gives to the officer in charge of the prison in which he is serving sentence a written notice of his intention to appeal and the particulars required to be included in the memorandum of appeal or statement, pursuant to the provisions of these Rules.”

Miss Malecela then withdrew the preliminary objection.

        We stated earlier on that the Republic onceded that the trial court’s non-compliance with the mandatory provisions of Section 240(3) of the Criminal Procedure Act, 1985 could have prejudiced the right of the appellant to a fair trial.  Section 240(3) of the CPA requires the learned trial magistrate to inform the appellant his right to require the attendance of the medical officer (who examined the complainant) for cross-examination:

“Section 240(3) …………The court shall inform the accused of his right to require the person who made the report to be summoned in accordance with the provisions of this section.”

        The record shows that the trial court did not inform the appellant the above right.  Neither were the contents of the PF. 3, Exhibit P.1, read over to the appellant.  These two omissions, it appeared to us, could have occasioned injustice to the appellant who, the record shows, initially objected to the admission of the complainant’s PF. 3 saying he was not present during medical examination.  Indeed the appellant had no right to attend the medical examination of the victim but he had a right to require that the medical doctor who performed the examination be called as a witness so that he would cross-examine him.  The trial magistrate had a duty to inform the appellant so.  The omission to inform the appellant of that right renders the PF. 3, Exhibit P.1, of little value.

        The proceedings of the trial court reflect yet another flaw: non-compliance with the mandatory provisions of Section 127 (2) of the Evidence Act, 1967 on the necessity of conducting a voire dire test before taking the evidence of a child of tender years.  Section 127(2) of the Evidence Act No. 6 of 1967 provides”

“127 (2)    Where in any criminal cause or matter any child of tender years 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 upon oath or affirmation.  If in the opinion of the court, to be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence, and understand the duty of speaking the truth.”

        The brief voire dire test at Page 4 of the Appeal record reads:

                      “VOIRE DIRE TEST.

I am in standard one.  I do not know what an oath

means.  I am yet to start religious classes.  If you

lie it is a sin before God.”

These few sentences are barely sufficient to establish whether the child, victim of defilement by the appellant, had sufficient intelligence to testify and, or, whether the said child understood the duty to tell the truth.  She did state that lying is a sin.  The learned trial Senior Resident Magistrate ought to have conducted a proper voire dire test to establish that the complainant possessed sufficient intelligence to testify and, or, that she knew that she had an obligation to tell the truth.

        The above procedural irregularities aside, we considered the burden of proof on the part of the prosecution to establish the guilt of the appellant beyond all reasonable doubt.  We observed that the credibility of the complainant was dented by the testimony of her mother, P. W. 3 Flora Raphael, who claimed that her daughter had not been defiled at any other time.  Contrary to P. W. 3`s assertion, her daughter stated at Page 5 of the appeal record:

“… The first time you did it to me I reported to my mother who told me that I was a liar.  But the second time was when she decided to take me to the CCM office…”

which words, in our view, show that P. W. 3 was aware that her daughter had been defiled at some other time previously.

        Another discrepancy arises in the evidence of P. W. 2, Mwanzoni Athumani, who fished out the victim from the appellant’s room after the defilement and yet stated at Page 8 of the appeal record:

“she (victim) appeared normal…”

which implied that the little girl had not been sexually assaulted.  The father of the complainant saw the latter at the CCM office and like P. W. 2 said his daughter appeared normal:

“At the CCM office I found my daughter in

normal composure.”

        In view of the material discrepancies in the prosecution evidence and the irregularities pertaining to non-compliance with mandatory statutory provisions enumerated above, we refrain from upholding the conviction.  For those reasons the appeal has merit.  We accordingly quash the conviction and set aside the sentence.  The appellant be released from prison forthwith unless he is otherwise detained for other lawful cause.

        Dated at Dar es Salaam this 17^th day of December, 2002.

B. A. SAMATTA

CHIEF JUSTICE

J. A. MROSO

JUSTICE OF APPEAL

E. N. MUNUO

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

F. L. K. WAMBALI

DEPUTY REGISTRAR

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