IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: MROSO, J.A., KAJI, J.A., And RUTAKANGWA,
J.A.)
CRIMINAL
APPEAL NO. 92 OF 2006
ALFEO
VALENTINO ………………………………….… APPELLANT
VERSUS
THE
REPUBLIC …………………………………….… RESPONDENT
(Appeal
from the Judgment of the High Court
of
Tanzania
(Msoffe,
J.)
dated
the 19th day of September, 2001
in
HC
Criminal Appeal No. 16 of 2001
------------
REASONS
FOR JUDGMENT
RUTAKANGWA,
J.A.:
The
appellant was charged before the District Court of Arusha with the offence of
rape contrary to sections 130 (1) and 131 (1) of the Penal Code. The particulars of the charge read as
follows:-
“That Alfeo s/o Valentino charged on the 8th
day of September, 2002 at about 16:00 hours at Sakina area within the
Municipality, District and Region of Arusha, did unlawfully have a carnal (sic)
knowledge of one Grace d/o John a girl of
9 years old”.
Although he
denied the charge, he was convicted as charged and sentenced to thirty years
imprisonment. Aggrieved by the
conviction and sentence he appealed to the High Court where the conviction and
sentence were sustained. Still
dissatisfied, he lodged this appeal.
When the appeal was called on for hearing, after hearing both sides, we
allowed the appeal, quashed the conviction and sentence and ordered his release
from custody. We reserved our reasons
which we now give.
The
prosecution case against the appellant was based on the evidence of four
witnesses; these were two mothers and two daughters.
It was
Asifiwe Msangi, the mother of Grace d/o John, who testified as PW2 at the trial
of the appellant who initiated the steps leading to the arrest and prosecution
of the appellant. In her evidence she
told the trial court that on the 8th of September, 2000, when Grace,
who testified as PW1, returned home from school at 4:00 p.m. she refused to
eat. Grace told PW2 that her friend and
classmate Irine had been given by her mother Tshs. 5,000/= with which they had
used to buy some bites. When PW2
cross-checked with Irine’s mother, Sarah Minja (PW4), the latter denied having
given Irine (PW3) any money. When PW2
pressed PW1, the latter came up with a different story. This time PW1 told her mother (PW2) that they
had been given money by the appellant “who
used to take them to his home and defile them”. On getting this information, PW2 returned to
PW4’s home where she learnt that PW4 had already been told the same story. All
the same PW2 took no action until 12th September, 2000 when
she reported the matter to the Police.
PW1 was sent to Mount
Meru Government
Hospital
In his
sworn evidence the appellant denied raping PW1 on 08/09/2000 or at all. He raised a defence of alibi claiming that he
had left Arusha for Iringa on 5th September, 2000 where he remained
until 23rd September, 2000 when he returned to Arusha. On this he was supported by five witnesses
including his employer Yahaya Mosha (DW5) and Sergeant Francis Mchafe (DW6) of
the Tanzania Peoples Defence Force. DW6
told the trial court that he was with the appellant at Iringa between 7th
and 13th September, 2000, when he (DW6) returned to Arusha leaving
the appellant behind. We cannot resist
observing here that although the appellant was ready to back up his defence of
alibi with bus fare tickets, his efforts were frustrated by the Public
Prosecutor who successfully asked the trial Resident Magistrate not to accept
them in evidence as the appellant had not tendered them “before the hearing” of the case.
This was in spite of the fact that the appellant had given the requisite
notice of his intention to rely on the defence of alibi.
Relying on
the PF3 (exhibit P1) which showed that PW1 had “lost her virginity and that her vaginal orifice could allow a tip of a
finger” and the evidence of PW1 and PW3, the trial Resident Magistrate had
no difficulties in holding that PW1 had actually been raped by the appellant.
The first
appellate court dismissed the appellant’s appeal because the prosecution “witnesses were all positive that the
appellant raped the complainant on the fateful day”.
In this
appeal five grounds of appeal were preferred, but they can safely be reduced to
three. These are:- One,
the two courts below erred in believing and acting on the evidence of PW1 and
PW3 which was received without conducting a voire dire examination. Two, the two courts below erred in acting on exhibit P1 (the PF3)
which was irregularly admitted in evidence without the appellant being informed
of his right to have the doctor summoned under section 240 (3) of the Criminal
Procedure Act, Cap. 20, R.E. 2002. Three, the two courts below erred in
law and fact in basing and/or sustaining the conviction for rape on the
contradictory, inconsistent and implausible evidence of the four prosecution
witnesses which did not prove the charge.
The
appellant, who was advocating for himself, found support for his appeal from
the respondent Republic. Mr. Boniface,
learned Senior State Attorney, represented the Republic in this appeal.
When called
upon to elaborate on his grounds of appeal the appellant, a lay person, had
nothing to say. He preferred to have Mr.
Boniface address the Court first.
Arguing in
support of the appeal Mr. Boniface urged us to allow the appeal on the basis of
the complaints raised in the memorandum of appeal. He conceded to the complaint that the
evidence of both PW1 and PW3 who were children of tender age was received in
evidence by the trial court without a voire dire examination being conducted first.
To him this
was necessary, under section 127 (2) of the Evidence Act, Cap. 6 R.E. 2002, for
the purpose of determining whether or not the two girls knew the nature of an
oath and if not whether they were possessed of sufficient intelligence to
justify the reception of their evidence and
understood the duty of speaking the truth.
Their evidence having been taken on oath without complying with this
mandatory requirement of the law, he argued, the same should be reduced to the
plane of unsworn evidence which would
need to be corroborated. He cited
the case of Herman Henjewele v R, Criminal Appeal No. 164 of 2005
(unreported) in support of his argument.
Mr.
Boniface also conceded to the non-compliance by the trial court with the
mandatory provisions of section 240 (3) of the Criminal Procedure Act, (the
Act). He was of the view that because of
this omission the PF3 (exhibit P1) should be expunged from the record.
Coming to
the patent contradictions and inconsistencies in the evidence of the four
prosecution witnesses, which he took pains to list, Mr. Boniface was
unequivocally of the view that they were so fundamental that it was wrong for
the two courts below to gloss over them thereby occasioning injustice in the
case. To Mr. Boniface the contradictions
in the evidence of PW1 and PW2 rendered their evidence unreliable and could not
be saved by section 127 (7) of the Evidence Act.
The learned
Senior State Attorney also joined the appellant in attacking the biased
approach adopted by the trial magistrate in rejecting an otherwise cogent and
convincing defence evidence on the basis that the appellant was unimpressive in
the witness box. He maintained that had
the appellant been as unimpressive as she portrayed him in the judgment then
she ought to have so recorded in the record of proceedings as is mandatorily
required under section 212 of the Act.
For these reasons he invited us to allow the appeal in its entirety.
We
understand that this is a second appeal.
The law on the duty of this Court in an appeal of this nature is well
settled. It is now well established that
the Court rarely interferes with concurrent findings of fact. An appellate court can only interfere with a
finding of fact by a trial court where it is “satisfied that the trial court has misapprehended the evidence in such
a manner as to make it clear that its conclusions are based on incorrect
premises” : See Salum Bugu v Mariam
Kibwana, Civil Appeal No. 29 of 1992 (unreported). On a second appeal this Court will not
interfere unless it is shown that there has been a misapprehension of the
evidence, a miscarriage of justice or a violation of a principle of law or
practice: See Amratlal D. M. t/a Zanzibar Silk Stores v A. H. Jariwara t/a Zanzibar Hotel [1980] TLR 31, CAT, D.P.P. v J. M. Kawawa [1981] TLR 143, Musa Mwaikunda v R, Criminal Appeal No. 174 of 2006 (unreported), etc.
After our
objective perusal of the entire evidence on record and judgments of the two
courts below we have found a compelling need, in the interests of justice, to
interfere with the concurrent findings of fact by the two courts below. The conceded grounds of appeal justify our
interference. We shall first deal with
the issues of non-compliance with the mandatory statutory provisions.
The points
of law raised in this appeal, as conceded by Mr. Boniface, have merits. Section 212 of the Act provides in no
uncertain terms that “when a magistrate
has recorded the evidence of a witness he shall also record such remarks, if
any, as he thinks material respecting the demeanour of the witness whilst under examination”. It goes without saying, therefore, that if a
trial magistrate has found a particular witness’s demeanour impressive or
otherwise and he or she believes that the witness’s demeanour will be crucial
in the assessment of his/her credibility then section 212 should be followed to
the letter. In order to ensure that
justice is manifestly seen to been done, such remarks should not remain as a
trial magistrate’s secret until the day of judgment. They should be made known to the witness
and/or parties immediately. Full
compliance with section 212 gains greater significance when the judgment is
prepared after a lapse of a reasonable period of time.
In this
particular case the judgment of the trial court was prepared over a month after
the appellant had testified. The good
trial magistrate rejected his evidence because he was having a hard time “facing PW1 and PW3 in Court”. As this was not the only case she was dealing
with in her court, we fail to understand how she could recall this unimpressive
demeanour of the appellant without having so recorded in the record of
proceedings.
We have
also noted that in her judgment the learned trial Magistrate did not make even
a fleeting reference to the evidence of the five defence witnesses who
supported the appellant’s alibi. We are
satisfied that the rejection of the appellant’s own evidence on the sole ground
of demeanour without considering the evidence of the five defence witnesses was
extremely unjudicial. The magistrate
substituted her own impressions for real evidence in order to justify the
guilty verdict, although she was not a witness.
As this Court succinctly stated in Charles
Samson v R, Criminal Appeal No.
29 of 1990, as in many other cases, failure by a trial court to fully consider
a defence of alibi, and we may add without fear of being contradicted, the
defence case as a whole, is a serious error.
We are of the settled mind, therefore, that the trial court fatally
erred in not considering the entire defence evidence before finding the
appellant guilty. Unfortunately, even
the first appellate court did not address itself on this omission.
That the
provisions of section 127 (2) of the Evidence Act were flagrantly disregarded
by the trial Resident Magistrate is not in dispute. We would like to remind all trial magistrates
what this Court stated in the case of Augustino
Lyanga v R, Criminal Appeal No.
105 of 1991. We said:-
“If we are to paraphrase
the provisions of section 127 (2), a court may only receive evidence of a child
of tender years who does not understand the nature of an oath if in the opinion
of the court the child is possessed of sufficient intelligence and understands
the duty of speaking the truth. These
requirements must be recorded in the proceedings …..
It is our considered view that the two requirements are
conditions precedent to receipt of evidence from a child of tender years whose
evidence has not been received on oath or affirmation. [Emphasis is ours].
It hardly needs emphasis, therefore, to say that if a voire
dire is conducted and a child who does not understand the nature of an
oath or affirmation is found to be wanting either in possession of sufficient
intelligence or in his/her capacity to understand the duty of speaking the
truth or in both the evidence of such child should not be received at all. This, we say, as a guiding general
proposition of law for all trial courts.
All the
same, in this particular case the evidence of PW1 and PW3 was taken on oath
without conducting any voire dire at all. This was highly irregular. For the present purpose we shall treat their
evidence as unsworn evidence, although in some cases it is discounted
altogether. The same may be acted upon
subject to the provisions of section 127 (7) of the Evidence Act. Section 127 (7) provides that a conviction
for a sexual offence may be based on such evidence if the court is satisfied
that the child has told “nothing but the
truth”. This then leads us to the
appellant’s complaint on non-compliance with section 240 (3) of the Act.
Section 240
(1) of the Act sanctions receipt in evidence in a subordinate court of
statements or reports by medical witnesses.
Sub-section (3) thereof provides as follows:-
“When a report referred to in this section is received
in evidence the court may, if it think fit, and shall, if so requested by
the accused or his advocate, summon and examine or make available for
cross-examination the person who made the report; and 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 sub-section”. [Emphasis is ours].
We think
that the law on this issue was stated with sufficient lucidity by this Court in
the cases of Kashana Buyoka v R, Criminal Appeal No. 176 of 2004, Sultan s/o Mohamed v R, Criminal Appeal No. 176 of 2003, Rahim Mohamed v R, Criminal Appeal No. 234 of 2004, (all unreported) among many
others. The Court has consistently held that once the medical report, as the
PF3, is received in evidence, it becomes imperative on the trial court to
inform the accused of his right of cross-examination. This Court held in these cases that if such a
report is received in evidence without complying with the mandatory provisions
of section 240 (3), such a report must not be acted upon. In the cases of Sultan s/o Mohamed and Rahim Mohamed, both involving the
offence of unnatural offence c/s 154 of the Penal Code, retrials were ordered
in the interests of justice, as the trials were found to have been flawed by
the omission. In Buyoka’s case the conviction for rape was quashed and no re-trial
was ordered because of the circumstances obtaining in that case.
In this
particular case even if the PF3 is not discounted, it is our considered opinion
that it carries no weight at all. This
is because PW1 was examined five days after the alleged incident. Furthermore, the only findings going to
suggest, very remotely in our view, that PW1 might have been carnally known were
a missing hymen and the “vaginal orifice” which “could
allow tip of finger”. The medical
officer did not even hazard a guess on what could have occasioned this. Furthermore, the PF3 could not prove that it
was the appellant who raped PW1 but PW1 herself. This leads us to the final ground of appeal.
That the
evidence of the four prosecution witnesses was characterized by contradictions
and inconsistencies was even accepted by the learned 1st appellate
judge. He, however, dismissed them as
follows:-
“In my view, I will accept Mr. Maro’s view that there
were contradictions here and there as clearly argued above. I am not prepared, however, to say that these
were material contradictions enough to affect the overall case against the
appellant. I say so because as earlier
stated, the bottomline in the case was whether or not the appellant committed
the offence. And on this point, the
witnesses were all positive that the appellant raped the complainant on the
fateful day.
[Emphasis is ours].
The underscored words provide us with a good starting
point. We share the learned judge’s
observation that the bottomline was whether or not the appellant raped
PW1. With profound respect, however, we
differ with him on his assertion that the prosecution “witnesses were all positive” that the appellant raped PW1 on 8th
September, 2000. We scanned every
available evidence on record but we found no iota of evidence supporting this
conclusive assertion.
PW1 in a
very incomprehensible manner told the trial court that one day they met the
appellant who took them (herself and PW3) to his home, undressed her and then “akanifanya
matusi”. Then he gave her Tshs.
5,000/= with which they bought bites.
PW1 said she could not recall the day.
PW2 who mentioned the said 8th September 2000 as already shown earlier,
testified that it was on this day when she learnt from PW1 that the appellant
used in the past to defile PW1 and PW3.
On her part PW3 testified that one day as they were coming from school
they passed by the appellant’s “place”
who gave her “Tshs. 5,000/=
and then, as she put it, “tumefanya
ujinga”. PW4 told the trial
court that after being visited by PW2 on 8/9/2000 she was informed by PW3 that
at one time the appellant had taken her and PW1 to his home and had raped
them. So there is no evidence on record,
let one credible evidence, to show that the appellant had sexual intercourse or
even made an attempt to do so with PW1 on 8th September 2000 or on
any other specific day.
It was
important for the prosecution to produce clear evidence to prove that PW1 was
raped on 8/9/2000 as the charge particularized.
In Ryoba Mariba @ Mungare v R, Criminal Appeal No. 74 of 2 003
(unreported) this Court held that it was essential for the Republic which had
charged Ryoba with raping one Sara
Marwa on 20/10/2000 to lead evidence showing exactly that Sara was raped on
that day, a charge the accused was required to answer. See Christopher
R. Maingu v R, Criminal Appeal
No. 222 of 2004 (unreported).
The next
crucial question we have to consider is whether or not PW1 and PW3 had told the
trial court nothing but the truth. Our
own evaluation of the evidence of these key witnesses has led us to the
conclusion that they did not. In the first instance the prevarications
exhibited by PW1 on 8/9/2000 have convinced us that PW1 either did not know the
duty of speaking the truth or she was simply a downright liar. Secondly,
the inconsistencies in their evidence on what had allegedly happened to them
while at the home of the appellant lead us to an irresistible conclusion that
they were lying.
While PW1
testified that they met the appellant along the way and he led them to his home
where he ravished them, PW3 said that they went to the appellant’s home on
their own being led by one Rose.
Although PW1 alleged that after being carnally known by the appellant he
gave her Tshs. 5,000/=, PW3 testified that when they went to the appellant’s
home he first gave her (PW3) Tshs. 5,000/= and then he presumably raped
them. However, while under cross-examination
PW3 told the trial court that she was given the said money by the appellant’s
friend and further that PW1 was not given any money. At one time PW3 testified that while the
appellant was raping PW1 she was in the appellant’s room witnessing the
incident. But she belied herself when
she was examined by the court, by asserting that:-
“While Grace (PW1) was being done by the accused I was
in another room with the other man …..”
All these were not minor contradictions. To us they were fundamental and went not only
to shake their credibility as witnesses but also to create genuine doubts on
whether PW1 was carnally known at all and if she was, if that was done by the
appellant.
There is
also the issue of the implausibility of the entire story. Although PW2 testified that PW1 had told her
on 8/9/2000 that the appellant used to “defile
them”, she never bothered to examine her at all. Although at first PW2 told the trial court
that she reported the incident to the police on 9/9/2000, while under cross-examination
she back-pedalled and said that she made the report on 12/9/2000 because “8/9/2000
was a Friday”. One wonders why PW2,
who is supposed to be a responsible mother, had to wait for four clear days
before reporting the abhorrent “crime” of the appellant, if indeed
this “rape”
of PW1 took place. Her unexplained
flippancy, in the circumstances, has led us to think that the entire accusation
might have been cooked up for reasons best known to themselves.
It is for
these critical deficiencies in the prosecution case which the two courts below
did not address their minds to, that we found ourselves constrained to hold
that the appellant’s conviction was bad in law and made the orders stated at
the beginning.
DATED at ARUSHA this
25th day of October, 2007.
J. A. MROSO
JUSTICE
OF APPEAL
S. N. KAJI
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this
is a true copy of the original.
(I. P. KITUSI)
DEPUTY
REGISTRAR
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