Mathias Msambule bs Republic (Criminal Appeal No. 43 of 2013) [2014] TZCA 2198 (14 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA f CO RAM: RUTAKANGWA, J.A.. BWANA. 3.A.. And MANDIA. J.A.^ CRIMINAL APPEAL NO. 43 OF 2013 MATHIAS MSAMBULE......................................................................APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Mbeya) fChocha. J.l dated the 15th day of October, 2012 in Criminal Appeal No. 45 of 2011 JUDGMENT OF THE COURT 28th April & 14th May, 2014 RUTAKANGWA. J.A.: The appellant was charged with and convicted of the offence of rape. He was said to have raped one Magreth d/o Jumbe, a girl aged 9 years. He was sentenced by the trial District Court of Mbarali District to thirty (30) years imprisonment. His appeal to the High Court sitting at Mbeya was dismissed, hence this appeal. In this appeal in which the appellant is fending for himself, he is faulting the judgment of the learned first appellate judge because it is based on:

(i) the PF3 (exh. PI) which was admitted in evidence without the provisions of S. 240 (3) of the Criminal Procedure Act (the CPA) being complied with; (ii) the evidence of PW1 Magreth which was received in contravention of the mandatory provisions of S. 127 (2) of the Evidence Act (TEA); (iii) the contradictory evidence of the prosecution witnesses who testifird against him (grounds 3 and 4); (iv) fabricated evidence to the effect that he had confessed to the offence (5th ground); (v) a biased evaluation of the evidence (7th ground ). In the last substantive ground of appeal (5th) he is complaining that he was illegally sentenced to a prison sentence of thirty years while he was a first offender under 18 years of age. While the appellant appeared before us to prosecute his appeal, and opted to adopt the above grievances without more, the respondent Republic was represented by Mr. Edwin Kakolaki, learned Principal State Attorney. The respondent Republic supported the appeal. But why did the appellant find himself behind bars? A brief background will be instructive. The prosecutrix, PW1 Magreth, told the trial court that the appellant who used to reside at their home raped her on 21/12/1998. Elaborating on this assertion, she claimed that on that day the appellant led her into the

sheep's shed, while her mother had gone to fetch water. He fell her down, undressed her and himself and had sexual intercourse with her. When she tried to raise an alarm, the appellant allegedly closed her mouth with his hand. While, the ravishing was going on, she claimed, her mother, PW2 Anastazia Malamula, arrived and found the appellant "on top" of her. PW2 Anastazia sought the assistance of their neighbour who managed to tie the appellant with a rope and he was sent to the police and she to hospital. This neighbour was identified to be Boniface Mdumbe who testified as PW3. The appellant denied the charge. He claimed that the case was fabricated as the family of the prosecutrix owed him his wages for work done on their 3 - acre shamba. The learned trial Resident Magistrate found the defence evidence sufficiently wanting in cogency compared with what he found to be the truthful evidence of the three prosecution witnesses, hence the conviction. In the High Court, the respondent Republic supported the appellant's appeal because both the evidence of PW1 Magreth and the PF3 had been received in utter disregard of the requirements of the law. The learned first appellate judge rejected these reasons because, to him, the learned trial Resident Magistrate had complied with the requirements of section 127 (2) of TEA. Convinced that PW1 Magreth was a witness of truth he dismissed the appeal.

In supporting this appeal, Mr. Kakolaki pressed us to differ with the learned first appellate judge and hold that there was non-compliance with the mandatory provisions of sections 127 (2) of TEA. It was strong submission that the trial court received the evidence of PW1 Magreth, who told it that she was yet to start schooling, without determining whether she was possessed of sufficient intelligence to justify the reception of her evidence. Relying on the decision of this Court in Lyego Wilson v R., Criminal Appeal No. 194 of 2009 (unreported), he urged us to discount in its totality the evidence of PW1 Magreth. We have perused the evidence of PW1 Magreth. She was aged 9 years at the time she testified. In a voire dire examination, which as Mr. Kakolaki said, was perfunctorily conducted, she said that she was not schooling and did not understand the nature of an oath. Nevertheless, she asserted that she "knew" how to tell the truth. We take the last aspect of her evidence to mean that she understood the duty of telling the truth. Misapprehending the true import of section 127 (2) of TEA, the learned trial Resident Magistrate concluded that "the witness is having sufficient intelligence although he (sic) does not know the meaning o f oath." He was wrong. He did not carry out any examination to find out whether or not PW1 Magreth was possessed of "sufficient intelligence to justify the reception" of her evidence. This is one of the two uncompromisable conditions, under the prevailing law, before the evidence of a child of tender age is received not on oath. Consistent with a plethora of decisions of this Court, we find ourselves constrained to discount the evidence of

PW1 Magreth as urged by Mr. Kakolaki: see, Omary Kurwa v. R., Criminal Appeal No. 89 of 2007, Mohamed Sainyeye v. R., Criminal Appeal No 57 of 2010, Makoye Reli v. R., Criminal Appeal No. 118 of 2009, Lyego Wilson v. R., Criminal Appeal No. 109 of 2009 (all unreported), etc. It was Mr. Kakolaki's strong submission that once the evidence of PW1 Magreth is expunged, as we have done, there will remain no cogent evidence on record to sustain the appellant's conviction. We are in agreement with him. As argued by Mr. Kakolaki, the evidence of both PW2 Anastazia and PW3 Boniphace does not prove the essential element of penetration. Worse still, as argued by the appellant himself, the evidence of the prosecution, even if that of PW1 had not been expunged, is implausible. It is inconceivable that PW2 Anastazia would have heard the cries of PW1 Magreth, as she (PW2) claimed, while PW1 had testified that she could not raise any alarm as we have already shown earlier on. PW1 Magreth alleged that the appellant put off his pair of trousers before sexually assaulting her. Both PW2 Anastazia and PW3 Boniphace claimed that the appellant had his trousers on. It is equally inconceivable that PW2 Anastazia would have found the appellant raping PW1 Magreth, leave them alone to seek the help of their neighbour PW3 Boniphase, and the appellant continue with the act until PW3 found him still raping PW1. This does not add. Furthermore, while PW3 Boniphace claimed that he went to the home of PW2 Anastazia in response to the alarm raised by the latter,

neither PW1 Magreth nor PW2 Anastazia testified that PW2 raised any alarm. Had the two courts below considered these patent inconsistencies and implausibilities, they would not have casually rejected the evidence of the appellant. After all, the appellant had no duty to prove his innocence. The duty was on the prosecution to prove the guilt of the appellant beyond a reasonable doubt. On the basis of the above discussion, we find merit in this appeal, which is accordingly allowed. The conviction of the appellant for rape is hereby quashed and set aside as well as the sentence imposed on him. The appellant is to be released forthwith from prison unless he is otherwise lawfully held. DATED at MBEYA this 13th day of May, 2014. E.M.K. RUTAKANGWA JUSTICE OF APPEAL S.J. BWANA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. F.J. KABWE DEPUTY REGISTRAR COURT OF APPEAL