Omary Saimon vs Republic (Criminal Appeal No 358 of 2016) [2019] TZCA 618 (10 December 2019)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A., MWAMBEGELE. J.A and WAMBALI, J-A.l CRIMINAL APPEAL NO. 358 OF 2016 OMARY SAIMON ........................................ ................................APPELLANT VERSUS THE REPUBLIC........................................... ............................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga (MakanLJL) dated the 24th day of June, 2016 in Criminal Appeal No. 37 of 2015 JUDGMENT OF THE COURT 25th November & 10th December, 2019 LILA, J.A,: Omary Saimon, the appellant, was convicted by the District Court of Shinyanga of three offences namely; unnatural offence contrary to section 154(1), rape contrary to sections 130(l)(2)(e) and 131(3), and grievous harm contrary to section 225 all of the Penal Code Cap. 16 R. E. 2002 (the Penal Code). He was sentenced to imprisonment for life for each of the first two offences and thrge years for the last offence. Aggrieved, he appealed to the High Court against both convictions and
sentences. The High Court (Makani, J.) dismissed the appeal in its entirety. Aggrieved again, he has appealed to this Court fronting, initially, ten (10) grounds of complaint in his memorandum of appeal and later, five (5) grounds comprised in his supplementary memorandum of appeal. For reasons to be apparent later in this judgment, we take the liberty to hereunder reproduce both memoranda of appeal as were presented "MEMORANDUM OF APPEAL
- THA T, the Exhibits PE 2, PE3f PE4 and PE5 were required to be expunged from the record for strong reason that was not implicated the Appellant in the said matter had enough were not interpreted before the court.
- THAT, the Exhibit PEI (the PF3 of the victim) was improperly introduced, admitted and relied into evidence.
- THAT, the trial court and the Appellate judge erred for failure to note that the purpose for conducting voire dire the procedure' was not explained in the case.
- THAT, the Evidence of PW5 was required to be expunged in the record for the strong reason that 2
he did not lay down his competence as the law required. 5. THAT, both the court and the Appellate judge erred for failure to note that there was no link of the blood of the Appellant to implicate him with these offences. 6. THAT, the Evidence of PW1, PW3, PW4 PW6 was /were not tight to implicate the appellate in conviction. 7. THAT, neither the evidence from the prosecution side nor the list of Exhibits tendered in court outlines the case against the Appellant. 8. THAT, the trial court and the Appellate judge erred for failure to determine the credibility o f the PW2. 9. THAT, both the trial court and the Appellate judge erred for failure to consider the defence evidence and bad enough with no reasons(s) for doing so. 10. THA T, the Appellate judge erred for saying that the evidence on record is substantial enough to support conviction and that the prosecution proved the case beyond reasonable doubts." "Supplementary memorandum o f appeal
- THAT: Exh Pl-6 both were tendered by the state attorney thereby contravened the 3
mandatory provision of the CPA Cap 20\ R.E 2002 . 2. THA T: The appellant was biasly tried as the Hon. trial Magistrate had refused to grant an order of treatments to the appellant followed his (appellant's) complaint of being sick soon after arraigned before the court. 3. THAT: Examination in-chief was double conducted during PW2/ s Testimony. Thus, unprocedurally. 4. THAT: It's very doubtful on whether the appellant was named at the earliest (period) as per PW 2, 3, 4 and PW5. 5. THAT: the same State Attorney who prosecuted the case before the trial court had appeared an appeal stage: thus injustice the appellant." We, before discussing the points of grievance in this appeal, elect to give a brief account of the case which was before the trial court. The victim, who for the purpose of hiding her identity we shall be referring her to as ZX or simply the victim, was brought up and was living with her grandmother one Mwajuma Shabani (PW1) at Ibinzamata since she was just two years old following the demise of her mother. At the age of nine (9) and then at STD II at Kitangili Primary School, routinely visited one Ashura Husein, her aunt, at Ngokolo where she attended islamic
training famously known as madrasa on saturdays and remained there until Monday when she returned to Ibinzamata ready to attend school. The appellant, a bicycle cyclist operating a transport business locally known as " daladald was her usual chauffeur who took her to Ngokolo. Came the 13/4/2014, the fateful date, PW1 gave her TZS. 500/= to pay the appellant as fare. PW1 was however later informed by Ashura that ZX was not there as was expected. Stunned with that information, she rushed to the police station only to be told to return home and keep on finding out ZX's whereabouts. Two days later, she was called at the police station where she was informed that the victim was at the Government Hospital after she was picked up in Mwagala bush by undisclosed persons. At the hospital PW1 found ZX with swollen eyes, having no pants, with bruises all over her body and raptured vagina and anus. She said that ZX started to speak after three days and it was then when she named the appellant as being the one who carried her on a bicycle to Ngokolo but somewhere in between diverted to the bush, fell her down, held her tightly on her eyes and gagged her mouth that culminated into her falling down unconscious. That she stayed in the bush for two days that is the 13 - 14/4/2014. She insisted that she gave ZX TZS. 500/= so that the appellant could ride her to Ngokolo and was 5
told by ZX that it was the appellant who actually took her on a bicycle to Ngokolo. On her part, ZX (PW2), after a voire dire examination was conducted and being affirmed, narrated the story regarding the whole incident stating that on 13/4/2014 she was given TZS. 500/= by PW1 and was told to go to Mama Joha or Mama Aisha (PW7) who would call the appellant (baba Wande Mdogo) who she knew well as she was schooling with one Wande who is his brother's daughter (Baba Wande Mkubwa) so as to take her to one Ashura at Ngokolo to attend madrasa. That PW7 called the appellant and they left to Ngokolo but on the way the appellant, despite her persistent protest, diverted into the bush where he threw her down and pulled her forcefully when she attempted to shout to no avail as the appellant stifled her mouth after which she fell down unconscious. She gained consciousness while in hospital after two days and she could not know how she reached there but found herself in severe pains in her eyes and when she wanted to relieve herself through both her anus and vagina. Mashaka Bwanga (PW3), a village chairman (VEO),.told the trial court that on 15/4/2014 he was informed by one Abel Dotto (PW6) that there was a child thrown in the bush and, together, they went to the
bush where they found the victim and carried her home. That, afterwards, ZX was given porridge after which she named one Baba Wande Mdogo who he did not know yet as being the one who took her into the bush. Sophia Jisaka (PW4) said she was informed by one Rapha on 15/4/2014 that there was a child in the bush and after she was brought home while with PW3, they prepared porridge for her and the child told them that she was taken into the bush by Baba Wande Mdogo. A doctor, who examined ZX one Maduhu (PW5), informed the trial court that he found the right eye bleeding, bruises inside her vagina which was also bleeding, injuries between the vagina and anus and the sphincter muscle was loose. He filled a PF3 (Exh. PE 1) and took photos (Exh. PE2, PE3, PE4, PE5 and PE6) so as to assist him preview the examination. Abeid Dotto (PW6) informed the court that while hunting birds with one Joseph they found a girl sleeping in the bush and they reported the matter to VEO (PW3). PW7 who according to ZX and PW1 sought the appellant to carry ZX to Ngokolo, told the trial court that the appellant was their neighbour
and is a daladala with a family and that he knew no other name of his. Regarding the incident, she was recorded to have said:- "On 13/4/2014 I was home at Ibinzamata and I know Mariam was missing after her mother informed me about 10.00 am." In his affirmed defence the appellant completely disassociated himself with the commission of the charged offences. He claimed that he was arrested on 22/4/2014 while at home with his wife, kicked and taken to police station and later charged with the offences. He said his name is Omary not Baba Wande Mdogo. He also denied having a family, knowing PW7 or any other prosecution witness and ZX being carried by him. He said, during their respective testimonies, both PW3 and PW4 denied knowing him. He claimed that he was not medically examined. In its decision, the trial court was satisfied that the prosecution had proved the charge against the appellant to the required standard and proceeded to convict him as above indicated. The learned trial magistrate was satisfied first; that the offences charged were really committed, secondly; that the appellant who was well known to PW1, PW2, and PW7 as Baba Wande Mdogo was the last person to be seen with the victim and thirdly; that the victim was the person who could properly tell what befell her hence her detailed account of the incident
coupled with the evidence of PW1 and PW5 together with exhibits PEI and PE5 the appellant's guilt was established to the hilt. The appellant was aggrieved and preferred an appeal to the High Court. It is noteworthy that the appellant's first appeal to the High Court was grounded on the following five grounds of grievance:- " 1. THA T, the trial magistrate had erred in law and fact by relying in the contradictory evidence which goes to the root of the case. 2. THA T, the trial Court erroneously relied on PW2's evidence (as credible witness) regardless the evidence of PW7 JOHA HAMIS's Version. 3 . THA T, the trial Court had erred in law and fact by failure to analyse and evaluate the quality and substance of the entire evidence on record. 4. THAT, the trial Magistrate erred in law and fact by conducting the case in open Court which was / is a violation ofSOSPA. 5. THAT, the Prosecution failed to establish their case beyond reasonable doubt." The High Court found those grounds baseless. In respect of the first ground of complaint, the learned Judge, applying the best evidence rule in proving sexual offences as stated in the case of Hangwa William vs. Republic, Criminal Appeal No. 117 of 2009 (unreported),
was satisfied that the trial court rightly relied on the testimony of PW2, the victim, who gave a detailed account of the incident together with that of PW7 to convict the appellant. As for the second ground of appeal she was of the view that the testimony of PW7 was meant to corroborate what PW2 had told the trial court. On the complaint in ground three, the learned Judge found no merit because the prosecution was able to prove penetration through the testimony of PW2 and PW5 who examined PW2, filled a PF3 (Exh. PEI), tendered photographs (Exh. PE2-PE6) and explained in court that there was loose sphincter, fresh torn hymen and laceration between the vagina and anus. She, similarly, found ground four and five of appeal baseless because the conduct of proceedings in camera is meant to protect the child and relied on the case of Herman Henjewele vs. Republic, Criminal Appeal No. 164 of 2005 (unreported) which is an authority that in case of violation, the proceedings are not vitiated unless it could be shown that there was a miscarriage of justice. She was satisfied that there was no miscarriage of justice in the present case. In the end, she dismissed the appeal in its entirety. On the date when the appeal was called on for hearing before us, the appellant appeared in person, unrepresented whereas the 10
respondent Republic was represented by Mr. Juma Masanja, learned Senior State Attorney. After adopting his grounds of appeal comprised in both memoranda, the appellant opted that the learned Senior State Attorney should respond to grounds of appeal first reserving his right to rejoin after hearing the learned Senior State Attorney. We, however, at the inception of the hearing of the appeal, asked Mr. Masanja to address us on each and every ground singularly starting with the issues of law raised by the appellant in both memoranda of appeal. In his submission, Mr. Masanja, at first, attacked grounds 4, 5, 6, 7 and 8 of the memorandum of appeal contending that they were not raised, canvassed and determined first by the High Court hence, not being issues of law, it was improper for the Court to consider them. He cited to us the decision of this Court in the case of Festo Domician vs. Republic, Criminal Appeal No. 447 of 2016 (unreported), in support of his assertion. He thus prayed that the same be disregarded. Arguing in respect of the complaint touching on the admission of the PF3 (Exh. PEI) which is comprised in ground two of appeal in the ii
memorandum of appeal which is also ground one in the supplementary memorandum of appeal, the learned Senior State Attorney conceded that the record shows that the same was tendered for admission by the prosecutor. He said the same scenario featured when the photographs (Exhibits PE2-PE6) were tendered. He was, however, quick to argue that, probably, it was the trial court which, looking generally on what transpired, wrongly recorded so. Elaborating, he said the record vividly shows that such exhibits were identified by PW5 and is the one who wished the same be received by the trial court as exhibit and, in respect of the PF3, it was PW5 who actually explained its contents to the appellant and the trial court after it was admitted. Read in context, Mr. Masanja reasoned, it was actually PW5 who sought those exhibits be admitted as exhibits. He accordingly urged the Court to dismiss that complaint. That notwithstanding, the learned Senior State Attorney equivocally conceded that no explanation was availed to the court and the appellant after exhibits PE2-PE6 were admitted as exhibits hence denying the appellant the right to know their contents. He, accordingly, urged the Court to expunge exhibits PE2-PE6 from the record of proceedings and retain Exhibit PEI of which its admission complied with
Notwithstanding the above anomalies, Mr. Masanja strenuously argued against the appeal contending that the remaining prosecution case was strong and unshaken and the appellant's conviction was well founded. Relying heavily on the best evidence rule, he was of the view that the detailed evidence by the victim (PW2) that it was the appellant, whom he was familiar with, who took her on a bicycle into the bush while on the way to Ngokolo where he threw her down forcefully and then pulled her by force resulting in her blackout and later being found raped, assaulted and carnally known against the order of nature, instead of taking her to Ngokolo as expected by PW1 and by PW7 who sought the appellant to do so, was so damning that it left no doubts on the appellant's involvement in the commission of the offences charged. He also argued that the victim named the appellant to PW3 and PW4 as being her assailant after being given porridge. The above supported by PW5 coupled with the medical report (PF3 that is Exh. PEI) sufficiently incriminated the appellant with the charged offences, Mr. Masanja insisted. In respect of ground three of the memorandum of appeal that the trial magistrate did not note the purpose for conducting voire dire test, Mr. Masanja insisted that the magistrate cannot be faulted, for he 13
indicated that the victim understood the meaning of oath and proceeded to affirm her before taking her testimony. To him that was sufficient. As for the complaint in ground nine of the memorandum of appeal which concerned the failure by both courts below to consider the defence evidence, Mr. Masanja while referring to pages 64 and 65 of the record of appeal where the defence evidence was summarized by the trial court, argued that the defence evidence was considered at pages 67 and 68 of the record of appeal and was dismissed. On the part of the High Court, Mr. Masanja argued that the defence evidence was considered and found unmeritorious at page 95 of the record of appeal. He accordingly urged this ground be dismissed too. However, our reading into the wordings of ground four of the supplementary memorandum of appeal, prompted us to ask Mr. Masanja to address us on whether the appellant was named at the earliest possible opportunity, whether there are apparent and serious contradictions in the testimonies of PW2, PW3, PW4, PW5 and PW7 in respect of when PW2 regained consciousness and, generally, whether in the totality of the evidence on record, it was the appellant who committed the offences charged. 14
Upon being referred by the Court to page 18 of the record of appeal where the victim said after falling unconscious on 13/4/2014 she recovered while in hospital and according to PW1 it was after three days, Mr. Masanja did not mince words as he conceded that it could not have been possible for the victim to have named the appellant after being given porridge by PW3 and PW4 and before being taken to hospital. More so, Mr. Masanja stated that had the appellant been the one who took the victim to Ngokolo then PW1 would have named him to the police on the date the victim went missing (13/4/2014) when she reported the matter or the day she was called to the police station and told that her daughter was at the Government Hospital. That, Mr. Masanja argued, created doubts in the prosecution case. Again, in respect of when the appellant was arrested, Mr. Masanja admitted that it was not indicated by evidence when the appellant was arrested and what lead to his arrest. He was, again quick to state that according to the appellant's own defence he was arrested on 22/4/2014. He contended that, in the absence of a testimony by a police officer who arrested the appellant, the appellant's assertion remained unchallenged and, in consequence, his delayed arrest and the reason for his arrest casted doubts in the prosecution case. 15
Regarding the appellant being the last person to be seen with the victim, upon our drawing the attention of Mr. Masanja to the testimony by the victim on the one hand and PW1 and PW7 on the other hand, he argued that while the victim was consistent that she was given TZS. 500/= by PW1 so as to pay the appellant as fare which evidence was supported by PW1 that it was actually the appellant who took her to Ngokolo after PW7 had sought him, PW7 claimed to have known from the victim's grandmother (PW1) that the victim was missing. Such inconsistence, Mr. Masanja contended, created serious doubts in the prosecution case on who actually took the victim to Ngokolo. In sum, Mr. Masanja argued that the totality of the above doubts seriously affected the prosecution case and he implored us to be pleased to allow the appellant's appeal. He accordingly retreated from his former stance and supported the appeal. Having noted that the learned Senior State Attorney had supported his appeal, the appellant simply reiterated his defence before the trial court and urged us to allow his appeal and set him at liberty. We have given due consideration to the arguments by both sides on the appeal.
Upon our serious examination of the proceedings and judgments of both courts below, it seems to be clear to us that it was not disputed that the charged offences were committed. The evidence by the victim and that of the doctor who examined her (PW5) is very clear on that. We must also add here that after studying the evidence on record we are of the settled mind that there was no dispute on the fact that the victim was raped, carnally known against the order of nature and she sustained grievous harm. We also take note that it is-evident too that whoever committed those offences did so with the highest brutality. Further to the above, it is evident that there was no independent eyewitness to the incident hence the evidence heavily relied on by the prosecution was the direct evidence of the victim herself and circumstantial evidence that the appellant was the last person to be seen with the victim. In view of that, the issue which stands for our deliberation and determination is whether such evidence implicated the appellant. We propose to deal with the grounds of appeal in the same way they were argued by the learned Senior State Attorney. As indicated above, in his submission,.. Mr..Masanja first of all directed his arsenals against grounds 4, 5, 6, 7 and 8 of the memorandum of appeal contending that, not being legal issues, they could not be dealt 17
with by the Court as they were not raised, canvassed and determined first by the High Court. To augment his assertion, he cited to us the decision of this Court in the case of Festo Domician vs. Republic (supra). We took the liberty to recite the grounds of appeal raised by the appellant before this Court and the High Court not without a purpose. It was meant to show which matters were deliberated by the High Court the findings of which could be challenged before the Court on Appeal. The Court was confronted with a similar issue in the case of Jafari Mohamed vs Republic, Criminal Appeal No. 112 of 2006 (unreported) and had this to say:- "We have found it convenient to begin our discussion by disposing of first the grounds of complaint listed (c) to (h) above. We have done so because these complaints are being improperly raised for the first time in this Court. For this reason, being issues of fact, their determination does not fall within our jurisdiction in an appeal o f this nature - see Section 6 (7) (a) of the Appellate Jurisdiction Act, Cap. 141. We take it to be settled law, which we are not inclined to depart from, that "this Court will only look into matters which came up in the lower 18
court and were decided; not on matters which were not raised nor decided by neither the trial court nor the High Court on appeal..." per the Court in Elias M saki v. Yesaya Ntateu Matee, Civil Application No. 2 of 1982 (ARS). See, also Richard s/o Mgaya @ Sikubaii Mgaya v R., Criminal Appeal No. 335 of 2008 (both unreported). The logic behind this should be obvious. This Court is conferred with jurisdiction to hear appeals from or revise proceedings or decisions by the High Court in the exercise of its original, appellate or revisional and/or review jurisdictions. We cannot, therefore, competently render a decision on any issue which was never decided by the High Court." The above being the clear stance of the law, we are satisfied that grounds 4, 5, 6. 7 and 8 of appeal raised by the appellant are not legal issues and were not deliberated first by the High Court. They cannot, as was rightly submitted by Mr. Masanja, be raised at this stage for the first time. The same are hereby accordingly disregarded. The appellant had faulted the trial court for allowing Exhibits PE1- PE6 be tendered by the prosecutor instead of the witnesses. We, indeed, like the learned Senior State Attorney, noted so hence we agree 19
with the appellant that the record reflects that it was the prosecutor who urged the trial court to receive and admit those documents as exhibits. Assuming, but without deciding, that is what really happened, then it would be improper [see Zabron Masunga and Another vs Republic, Criminal Appeal No. 232 of 2011 (unreported)]. Tendering of exhibits is the duty of the witness who had possession of it, authored it, had custody of it or had knowledge of its existence. Said in other words, the one to tender it is the one who had dealt with it in one way or another. However, as was rightly noted by the learned Senior State Attorney, it was PW5 who examined the victim, filled the PF3 and took the photographs and, according to the record, is the one who actually wished those exhibits be received and admitted as exhibits by the trial court. Further, in respect of exhibit PEI (the PF3), the record is vivid that it was PW5 who read and explained the contents thereof and not the prosecutor. In the circumstances, we are inclined to agree with the learned Senior State Attorney that the indication by the trial magistrate that it was the prosecutor who sought to tender such exhibits were a mere slip of the pen (lapsus calami). It did not occasion any injustice to the appellant. That ground of complaint, therefore, fails. 20
Another complaint relating to the foregoing exhibits was that they were wrongly acted on to found the appellant's conviction. The reason was that, after being cleared for admission, they were not read out to the appellant so as to enable him grasp the contents thereof. Save for exhibit PEI (PF3) the contents of which were explained by PW5, the learned Senior State Attorney conceded that the rest of the exhibits (Exhibits PE2-PE6) suffer from that infraction and they should be expunged from the record. We entirely agree with him since that is the legal position as was stated by the Court in the case of Robinson Mwanjisi and Three Others vs Republic [2003] TLR 218 at page 226 and Misango Shantiel vs Republic, Criminal Appeal No. 250 of 2007 (unreported). We accordingly expunge exhibits PE2-PE6 from the record of proceedings. In ground three of the memorandum of appeal the appellant complained that the trial magistrate did not indicate why he found it important to conduct voire dire test when PW2 (the victim), a child aged nine (9) years, was produced as a witness. It was Mr. Masanja's view that the magistrate did so when he recorded that "the victim understood the meaning of oath" and proceeded to affirm her before taking her testimony. Before we deliberate on this issue, we find it apposite to 21
expound the law on voire dire test which it is agreeable that it is conducted under section 127(2) of the Evidence Act, Cap. 6 R. E. 2002 (the EA). This Court, with lucidity, in the case of Nguza Vikings @ Babu Seya and Three Others vs Republic, Criminal Appeal No. 56 of 2005 (Unreported), stated that "But at this juncture, we entirely agree with Mr. Marando that the provisions of section 127(7) do not override the provisions of section 127(2). All that the section does is to allow the court, in sexual offences, to assess the credibility of a child witness who is the only independent witness or a victim of crime, and convict without corroboration, if the court is satisfied that the child witness told nothing but the truth. The section reads:- "Notwithstanding the preceding provisions of 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 of the sexual offence, the court shall receive the evidence and may after assessing the credibility o f the evidence of the child of tender years or, as the case may be of the victim of the sexual offence on its own merits, notwithstanding that 22
such evidence is not corroborated[ proceed to convict; i f fo r 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. " (Emphasis added). From the wording of the section , before the court relies on the evidence of the independent child witness to enter a conviction , it must be satisfied that the child witness told nothing but the truth. This means that, there must first be compliance with section 127(2) before invoking section 127(7) of the Evidence Act. "Voire dire " exam ination must be conducted to ascertain whether the child possesses sufficient intelligence and understands the duty to speak the truth. I f the child witness understands the duty to speak the truth, it is only then its evidence can be relied on for conviction without any corroboration otherwise the position o f the law remains the same, that is to say that unsworn evidence o f a child witness requires corroboration. "(Emphasis added) 23
We have found this piece of extract speaking it all that the purpose of conducting a voire dire test is to determine a child's competence to testify in terms of his intelligence to understand questions put to him and give rational answers as well as whether he understands the nature of oath so that he can give evidence on oath after being sworn in or affirmed otherwise determine whether he understands the duty to speak the truth so that his evidence can be taken not on oath in which case his evidence will require corroboration before it is relied on to convict. On that account, we agree with the appellant that the trial magistrate was supposed to indicate that the intended witness was a child hence the need to conduct a voire dire test so as to determine her competence to testify. That position of the law and its effect in the event of non-compliance was stated in the case of Jafari Mohamed vs Republic, Criminal appeal No. 112 of 2006 where the Court stated that:- "In the cases of Gabriel M aholi (supra), Sunday Juma (supra) and Henjewe/e (supra) it was categorically stated by the Court that before receiving evidence of a witness of tender age, the trial court must ascertain that the child is possessed of sufficient intelligence to justify the reception of the evidence and whether the 24
witness understands the duty of speaking the truth. This must be done by recording the question and answer session conducted on the child witness. It is only then the trial court should proceed to determine whether the evidence should be received on oath or without oath. For the failure to comply with the procedure for conducting "voire dire" examination properly, the issue before us is what would be the effect of the omission? Fortunately this is an issue which need not detain us. As correctly pointed out by both the learned counsel for the appellants and the learned Principal State Attorneythe position of the law is settled. The omission brings such evidence to a level of unsworn evidence o f a child which requires corroboration. See the cases of K isiri M w ita vs R (1981)TLR 218, Dhah/ri A lly V R (1989) TLR 27, Deema Daati and two Others vs R, CA T Criminal appeal No.SO o f 1994 and Henjewele (supra). In this respect the learned Judge on first appeal was right to say that noncompiiance with the procedure for conducting "voire dire" does not vitiate the proceedings ." The import of the foregoing legal position which obtained at the moment the victim gave her testimony on 11/6/2014; that is, before our 25
decision in Kimbute Otiniel vs Republic, Criminal Appeal No. 300 of 2011 (unreported) which was rendered on 17/6/2014 and the resultant amendment of section 127 of the EA through the Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016 - No. 4 of 2016, to which we fully subscribe, was that the improper conduct of the voire dire test only reduced the testimony of the victim to unsworn evidence which required corroboration before it was relied on to convict the appellant. We will revert to the issue whether there was evidence to corroborate of the victim at a later stage in this judgment. The next question that falls for consideration is whether or not after having expunged all the documentary exhibits and reduced the testimony of the victim (PW2) to the level of unsworn evidence requiring corroboration; the remaining evidence was sufficient to prove that it was none other than the appellant who committed the offences charged against the victim. The appellant's conviction, as alluded to above, was founded on two pieces of evidence; first, a direct evidence by the victim and, secondly, circumstantial evidence that the appellant was last to be seen with the victim.
We shall begin with the evidence by the victim. It is trite law that the best witness in sexual offences is always the victim of the offence herself/himself (see Ally Athumani vs Republic, Criminal Appeal No. 282 of 2009 (unreported). This is what is now famously known as best evidence rule. This brings us to the need to revisit the victim's explanation of her ordeal. She said:- "On 13/4/2014 I was home then grandmother told to go to mama Joha so that she can call baba Wande mkubwa or baba Wande mdogo then I went to mama Joha ad found mama Aisha and told her to look for baba Wande mkubwa or mdogo to take me to aunt mama mkubwa Ashura for madrasa. Then mama Aisha told me to sit down so that she may go and call one of them and mama Aisha went to call baba Wande mdogo and carried me into a bicycle and started to go at Ngokolo. I never reached at ngokolo because baba Wande mdogo ~ started to take me to unknown place then I asked him where are you taking me to unknown place then baba Wande mdogo said just wait and be cairn and took me into a bush where there were grasses and many trees. After reach at the bush baba Wande mdogo started to throw me down by force and when I shouted he pulled me by force then I 27
started to fill dizzy and become unconscious. When I woke up I found myself in the hospital I don't know after how many days but the body was in pains, eyes had pain and the right eyes was not seen and even to date I can't see through the right eye (the right eye look small in size compared to the left eye) my back has pain and my anus had pain when I wanted to help myself for urine and stool. Also urine was coming out itself. N. Gasabile - RM 11 / 6/2014 XXD B Y ACCUSED You carried me and took into a bush , I never told by any person to mention you. You carried me every day to Ngokolo. No one told me to mention you. Mama Aisha was the one called you to come and carry me. I stayed for two days unconscious yes, I know your home I saw you eating when I went to mama Joha and saw you eating. It was 4 hours when you carry me and took into a bush." On the face of it, although the above evidence fell short of telling what befell the victim after she fell unconscious, it seemed to be so damning that it was the appellant who carried her on a bicycle to 28
Ngokolo. However, as amply demonstrated above, such evidence required corroboration. In this case, such evidence would be expected to come from PW1 and PW7. As to what PW1 told the trial court, we leave it for the record to speak out. She stated that:- "On 13/4/20141 was home when I gave ZX Tsh. 500/= for transport of her daiadaia who is the accused person then I informed by ZX's Mother the one Ashura Hussein that Mariam was not yet arrived at Ngokolo then I was shocked and I went at the daiadaia stand to ask her daiadaia man but at daiadaia stand I never saw the accused person then I went at the police station and told to wait while asking where she is. While at home waiting then I received a call one hour and half that I should go at police station there is a child picked and I went straight at the police and I was told the girl is at Hospital because she was on bad shape then I went at Government Hospital where I found her, in doctor's room and identify her that she was ZX and her face was swollen and eyes were also swollen and dark red in her eyes the she has no pant and the body has bruises and her vagina was busted with wound and her anus was loose ." 29
It seems clear that PW1 sent the victim to one Joha (PW7) for her to find Baba Wande Mdogo who would take the victim to Ngokolo. But what is the story by PW7? We again let the record tell:- ’7 am living at Ibinzamata. Yes I have a family and live with my parents and three children who are Aisha Rashidi, Yusuph Rashidi and Juma Rashidi yes, at Ibinzamata many people call me "Mama Aisha" yes, I know ZX. She is my neighbour and her grandmother is our nearest person (family friend). Yes, I know the accused person in court his name is Omary said, he is our neighbour too with my family and ZX's family. The accused is a daladala man (riding bicycle to carry people) and he has a family wife and children. I don t know his other name. On 13/4/20141 was home Ibinzamata and I know ZX was missing after her grandmother informed me about 10:00 am. The accused's bicycle parking near to my house." It is evident that PW7's story is silent on the role she played to facilitatethe victim get transport to take her to Ngokolo. She was expected to tell whether or not it was the appellant or any other person who took the victim to Ngokolo. Instead, she claimed to know what befell the victim from PW1. 30
In the circumstances, we find nothing corroborating the victim's evidence that came from PW1 and PW2 that it was actually the appellant who carried her to Ngokolo. In the absence of such evidence, it was unsafe and improper to rely on the victim's evidence to convict the appellant. We now turn to consider the circumstantial evidence that the appellant was the last person to be seen with the victim. That reminds us of the well-established principle of law that if an accused person is alleged to have been the last person to be seen with the deceased, in the absence of a plausible explanation to explain away the circumstances leading to the death, he or she will be presumed to be the killer - see Mathayo Mwalimu and Another vs Republic, Criminal Appeal No. 147 of 2008 (unreported). That principle, which mostly apply in homicide cases, is being employed in this case to seek to establish the appellant's guilt. We must, however, hurriedly state that the duty of an accused in such a situation is to provide an explanation exculpating him from the commission of the alleged offence. More so, that being circumstantial evidence, the law is now settled that when it is to be relied upon, the court must be sure that there are no other co existing circumstances which would weaken or destroy the inference.
This Court in the case of Shabani Abdallah vs The Republic, Criminal Appeal No. 127 of 2003 (unreported) stated that:- "The law on circumstantial evidence is that it must irresistibly lead to the conclusion that it is the accused and no one else who committed the crime ." Also See Nkeshimana John @ Diodone V. The Republic, Criminal Appeal No. 229 o f2005, S e lf Se/emani V. Republic, Criminal Appeal No. 130 o f 2005 (both unreported), Simon Musoke V ; The Republic [1958] EA. 715 at 718 and Tiper V Republic [1952] A.C 480 to name but a few ." In the instant case, as earlier on demonstrated, the evidence by the victim was not corroborated by PW1 and PW7 hence there are doubts whether it was the appellant who carried her to Ngokolo. That aside, PW1, upon being informed that the victim was not at ngokolo, is on record that she rushed to the daiadaia stand to look for Baba Wande Mdogo before ascertaining from PW7 that he was the one who had taken the victim to Ngokolo. More so, even assuming that she was aware that it was the appellant who had done so, she did not report or rather disclose to the police that it was the appellant who carried the victim to Ngokolo when she went to report that the victim was missing. 32
To the contrary, she said that when she later went to the police station she was told that the victim was found in the bush and was taken to hospital. Unfortunately, PW7, as demonstrated above, was not forthcoming in her testimony on the alleged assignment given by PW1 to look for the appellant so as to take the victim to Ngokolo. That, in our view, not only casted doubts on whether or not it was the appellant who carried the victim to Ngokolo, but also accounted for the delayed arrest of the appellant. According to him, he was arrested on 22/4/2014 at his home, which evidence was not controverted by the prosecution as no one from their side testified on when he was arrested. There are therefore serious doubts on who actually took the victim to Ngokolo on the material date and whether the appellant's arrest was a result of being named by the victim. These doubts weakened and destroyed the inference in proving the offences against the appellant beyond reasonable doubt. There was also evidence tending to show that the victim named the appellant as her assailant to PW3 and PW4 after being given porridge immediately after she was found lying helplessly in the bush. We are alive to and minded of the long established proposition that unexplained delay by a witness to name the offender to people who 33
respond to the scene of crime, police or other authority casts doubts on the credibility of the witness. In Marwa Wangiti Mwita and Another vs Republic, Criminal Appeal No. 6 of 1995 (unreported), it was categorically stated by the Court that:- "The ability of a witness to name a suspect at the earliest opportunity is an all important assurance o f his credibility; in the same way as un-explained delay or complete failure to do so should put a prudent court to inquiry." In the instant case the evidence by PW3 and PW4 too is not free from doubts. While the two were consistent that after the victim was given porridge and before being taken to hospital named the appellant as the one who took her into the bush while on the way to Ngokolo, the victim herself told the trial court that after falling unconscious at the bush she recovered her senses after two days and while in hospital. She never said that she ever recovered senses at any moment before being taken to hospital and named the appellant to any one as her assailant. She did not even mention PW3 and PW4. Even, PW1 said the victim recovered consciousness after three days when already in hospital. There was an apparent discrepancy on the evidence as to when was the appellant named by the victim, if at all she did so. As to how to deal
with such contradicting evidence we find guidance from the Court's decision in the case of Saidi Ally Ismail vs Republic, Criminal Appeal No. 241 of 2008 (unreported) where the Court had an occasion to state that:- "...However it is not every discrepancy in the prosecution's witnesses that will cause the prosecution case to flop. It is only where the gist o f the evidence is contradictory then the prosecution's case will be dismantled." Given the importance of the evidence regarding when the appellant was named in determining the witness's credibility, then that evidence was crucial and goes to the root of the case. It is, in the circumstances, doubtful whether the appellant was ever named by the victim as being her ravisher. In all, with unfeigned respect, there are serious doubts on the prosecution evidence against the appellant that put it into disrepute which, had both courts below adverted to, would have not relied on to convict the appellant. In our criminal jurisprudence, doubts in the prosecution case, always benefit the accused. For the foregoing reasons, we allow the appeal, quash the conviction and set aside the sentence imposed upon the appellant. The 35
appellant is to be released from prison forthwith unless he is lawfully held therein. DATED at TABORA this 6th day of December, 2019. S. A. LILA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2019 in the presence of the appellant in person and Mr. John Mkony, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL