Maneno Daudi vs Republic (Criminal Appeal No. 165 of 2013) [2014] TZCA 2201 (27 September 2014)

.. , . ti . ~~ 1~:•,.( M•.pf \ #,,.';., IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ··. (CORAM: MSOFFE, J.A., KILEO, J.A., And KIMARO, J.A.) '. CRIMINAL APPEAL NO. 165 .OF 2013 M)l.N~O DAU DI .............................................. APPELLANT VERSUS THE REPUBLIC · .••..••••• .· •.••.••.••• 1 ■■ 11••····••1 ............. RES,PON·DENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Mwangesi, J.) dated the 22 nd day of June, 2013 in Criminai Appea No. 98 of 2009 JUDGMENT OF THE COURT Date 24 th & 27 th September, 2013 MSOFFE, J.A . . This is a short matter in which the District Court of Manyoni (Munuo, DM) sentenced the appellant to life imprisonment consequent upon his conviction for unnatural offence contrary to section 154(1) and (2) of the Penal ·Code (CA.P 16 R.E. 2002). Tile said court was satisfied that on 8 th May 2009 at about 17.00 hours the appellant carnally knew PW2 Pendo Emmanuel, aged four years at the material time, against the order of · nature. PW2 was generally supported by her grandmother PW1 Elizabeth Jonas, PW3 Dr. John Anita, PW4 W 6555 PC Saumu and PW5 PC Yoram. 1 I r ! i !

, The appellant's defence was a general denial of guilt contending in effect that he did not commit the ,alleged offence. He admitted however, knowing PW2. Anyhow, the trial District Court did not believe him, hence the conviction and sentence. Aggrieved, he unsuccessfully appealed to the High Court (Mwangesi, J.),· hence this second appeal. He appeared in person, unrepresented. The--respondent Republic had the services of ·Ms. Grace Mbunda, learned State Attorney . . In· this appeal the appellant is essentially raising two main grounds . ·· · .-which he also canvassed in the· first appeal· to the High Court. One, that there was no true. voire dire examination conducted in the case in -line with . •·• the dictates of the- law. Two,. that the evidence on record did not establish · the prosecution- case against him beyond reasonable doubt. In her oral submission before us Ms. Mbunda generally supported the appellant. In her view, in the·absence of a true voire dire examination the . evidence of PW2 could be discarded. And once that is done, there is no other evidence in the case to establish the appellant's guilt beyond reasonable doubt, she contended. 2

' ' Without much ado, we :are in agreement with Ms. Mbunda that no true voire dire examination ,was conducted in the case in line with the· provisions of section 127(2):ofthe Evidence Act and this Court's numerous ·decisions on the point, notably the recent decision of Mohamed Sainyeye v. Republic, Criminal Appeal No. 57 of 2010 (unreported). In the record of proceedings before us it is clear that before PW2 · gave evidence it was recorded thus:- PWJ 1 Pendo Emmanuel, aged 4 to five years. I have · not gone to school. I stay at Masigatt and Christian and she is tested and states I do not know meaning of an oath. Sgd. N.K. /VIUNUO -DM 26/5/2009. · Order: The witness does not know the meaning of an oath and he is not sworn. Sgd. N.K. MUNUO - DM 26/5/2009. 3

The above extract falls short of a true voire dire examination. In the absence of a true inquiry and a finding that PW2 understood the nature of an oath or was possessed of .sufficient intelligence and understood the duty of speaking the truth, it cannot be safely said that she was a competent witness. In this respect, the evidence of PW2 is of no evidential value in the case. Her evidence was-therefore wrongly admitted and acted upon· in the case. But that is the farthest we can go along with the appellant and Ms. Mbunda for that matter.·: .We do not agree with them that once the · evidence of PVV2 is accorded no weight there is no other evidence upon which we could safely uphold the conviction. Our starting point will be -as follows. It is pertinent that we state that · the general· principle,, has- always been that an appellate court will not interfere with findings of fact by the court(s) below unless they are manifestly unreasonable, where there was a misapprehension of the evidence, where there were . misdirections or non-directions on the evidence, etc. This Court has pronounced itself that much in its numerous decisions on the point beginning with the case of DPP v. Jafari Mfaume Kawawa (1981) TLR 149 t0 the more recent decisions• in Issa Said 4

Kumbukeni v. Republic (2006) TLR 277, Benjamini Nziku v. Republic, Criminal Appeal No.· 151 of 2010 and Eriot Ezekiel Dzombe v. Republic Criminal Appeal No; 248 of 2013 (both unreported). The question is whether there is basis for us to disturb the respective findings of fact by the courts below that the appellant committed the offence in issue .. As shall be demonstrated hereunder, our short answer is in the negative. We. begin. -\1,ith the evidence of PWl. In her testimony she stated · that on the date of incident she returned home from shamba work and met .many people at her home. Upon enquiry one Dino Hezroni told her that 11 my granddaughter was done unnatural offence'~ She observed PW2.and saw blood oozing from "her private partsl!. She asked PVv2· as to what befell her. PW2 told her that she was raped by the appellant. In cross- examining PWl the appellant did not pose any question in relation to the testimony of PWl that PW2 named him to her and that the said PW2 was bleeding at the time. The failure to cross-examine PWl on the above crucial aspect of the evidence may only draw the reasonable inference that he was admitting the evidence of PWl to the above effect. 5

i, This brings us to the evidence of both PW3 and PW4 which was not disputed by anybody. This is what PW3 stated: .... and I examined her. That child had bruises at the anus and according to my finding are that something like · penis penetrated at her anus. That child was bleeding and there was blood. ... In similar vein, PW4 stated:- That girl.had two bruises at the anus and there was blood stains meaning that there was clots of blood ... Finally, there is the evidence of PWS F.3578 PC Yoram. · This was the investigating officer. His uncontroverted evidence was that the appellant lived close to PW1 and PWZ. ·They were neighbours in the village and the appellant usually visited them l'to eat" According to him, when people assembled at the home of PW1 in answer to the alarm raised after the incident the appellant did not respond accordingly. In the course of arresting the appellant at his -home ''he was found hiding himself under the bed'~ Yet, when he was given the opportunity to cross - examine · PWS the appellant did not ask him any question on the above conduct. 6

Indeed, in his defence he did not say anything either, to refute the above version of the story. If so, the only inference that can be drawn here is that the appellant was hiding because of his guilt conscience. For the foregoing reasons, we are of the settled view that, leaving established the case against the appellant beyond reasonable doubt. Consequently, we hereby dismiss the appeal; DATED at DODOMA this 2ih day of September, 2013. J.H. MSOFFE JUSTICE OF APPEAL E.A. KILEO · JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL · I certify that ttr is a t ue copy of the original. \ . M.A. M EWO D~PUTY REG RAR COURT OF APP 7