Michael s/o Magige @ Wang'any vs Republic (HC Criminal Appeal No. 88 of 1999) [2000] TZHC 452 (10 July 2000)

\ ) MRoso, J. IN THE HIGH COURT O? TANZANIA AT i"IWANZA APPELLATE: JURISDICTION HIGH COURr CRIMINAL APPEAL NO. 88 OF 1999 (Original Criminal Case No. 712.of 1998 of the District Court of Musoma District at Musoma. Before: R. I. Rutatinisibwa, Esq. Resident Magistrate). MICHAEL s/o MAGIGE@ WANG'ANYI •••••••••••••• APPELLANT (Original Accused). VERSUS THE REPUBLIC • • ••••••••• • •••••••••••• • •. • • •• RESPONDENr , (Original Prose~utor). JUDGMENT This is an appeal against a conviction for the rape of a girl aged about seven years. The appellant was sentenced to 30 years imprisonment and 12 strokes of corporal punishment. He was further fined 20,000/= and to pay Shs.200,000/= compensation to the complainant young girl. The appellant who had protested his innocence during his trial felt aggrieved by the conviction and sentence, hence his appeal to this court. The brief facts of the case are that on 3/10/1998 the young girl Flora (PW1) was sent by a house girl - Helena Simon (PW2) to buy beans and was given Shs.200/= for that purpose. She went to a kiosk across the road. The kiosk was operated by the appellant. The appellant was said to have taken the young girl to a place behind a living house and raped her on the grass. Thereafter, he gave her sweets and Shs.100/=• He told her not to tell any one. When she returned home Helena (16 years old) saw her with the sweets and the Shs.100/=. She was erying and vomiting. When Helena questioned her, she said she was !eeJ.ing a headache. Two days later Flora (the young girl) told Helena that she felt pains in her genita1ia when urinnting and giving out stool. Helena informed when Flora's fatherLhe C<'..nte home in the evening. Flora told her fa.ther the

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• 2 '' truth of what had happened, On· 'the following day Flora ts father 1 Deogratias (PW3), who is also a policeman, took her to the police ..... I station for a PF.3 and then to a hospital for medical examination. The medical observations in the PF.3 which WM tendered in evidence at the trial shows that there were bruises in her vagina - on · ,· the labia majora:• and labia minora.. The hymen wa/3 partially perforated. The appellant was, arrested and prosecuted for the offence of raping the young gi'rl Flora. At the trial the appellant gave evidence on oath. , he not He didLhave · witnesses. In his defence_Ladmitted Flora had been to his kiosk to buy s~apt hot beans. She asked for sweets and he gave her, Under cross-examination, however, he denied he gave.· her sweets. He said he gave sweets to a different child.who was living with his sister, The trial court having heard all the available eviden?e, including sworn evidence from Flora after it W8.S satisfied she knew and understood the nature of·an oath, found the offence to have been adequately proved and convicted the appelllJ.llt as charged. In his petition of appeal the appellant raised five grounds of .,, appeal. In the first ground of appeal he chcllenged the admission of the PF3 RS evidence, saying it was hearsay evidence .. The learned State Attorney for the Respondent Republic did not advert to this ground of appeal when addressing the court. The appellant himself ~ad opted to be absent during the hearing of the appeal and, therefore, I could not ask him to elaborate on that ground of «ppeal,. I must confess that · ·the·admiss1on of a PF3 as evidence produced by an investigating officer has always been done as a matter of course, unless there was a request by an accused, or the court considered it necessary, that the doctor who prepared it be called to explain the report contained in it. In the case under discussion when the PF3 was being produced as evidence at the trial, the appellant indicated that he had no objection~~ to its production and I am unable at the l:f)peal level to tako seriously his

3 .oomplaint that it ougi\t not to he:va'be-en admitted ru; evidence. The appellant ts second ground of appeal is. that the trial ~agistrate :·''er'red. in. holding that identification was not an issue at the trial.· kgairt; t};lif? complaint is _a mere seq.end thought. The . ' prosecution case. was; that. the appellant, lived jμt3t across the roa.d from where the girl Flora. liyed •. _ ecendly, although,the, appellant so.id 'in his.evidence that.he had not known Flora yet he.adrnitted that ;>: . she came to 'his kiosk to buy soap, according to him. Thirdly the girl was able to take the investigating police officer,.PW4 - W.P. Detective .. Sergeant Neema and showed her the place behind a living house where she was raped Accqrdiq.g to the sketch plan, the kiotik iti which the appellant sold goods was in the same compound as the residential house and only 55 paces away. In the fourth place, on the. third day .· after she was violated the girl Flora pointed out the appellant to her.father who immediately arrested him. It was obvious, therefore, that the appellant was well known to Flora. The trial agistrate . . could ·not, in those circumstances, entertain doubts regarding the identificat-ion of. the appellant and, therefore there is no justification to fault him. · In the ,third ground of appeal the appellant criticized the trial •··· court in visiting the locus 22; ~ I would agree with the appellant that there were no compelling circumstances·for the court ,to visit the scene of crime, e.specially because there was evidence on record already from PW4 - D. Sergeant Neema that the girl took her to the ·, . scene of crime.and as a result the sketch plan of the l_o~~~ ~ quo was drawn. In visiting the scene of crime the trial magistrate risked turning himself into a witness. He even took evidenee of Flora afresh at the scene, and this being done after both the prosecution and the defence had ciosed thei respective case. No ·,one. had !'equested ·\ tltat Flora (PW1) be recalled to clarify her evidence oz:.to be cross- examined. I • r '- ..

4 1 asked Mro Kabonde, Senior State Attorney to address me on the . J .recourse which the.magistrate hed t~ken., '. He asked for time to do some research on the point. English authorities showed that the court in its discretion may recall a witness but that such discretion must be exercised with caution. See REPUBLIC Versus O\JEN /195§1 All E.R •. 1040 and REPUBLIC versus SULIVAN {i92).71 KB.47. I am satisfied, however, the course which the trial magistrate adopted, though. it was unecessary, did not prejudice the nppellant. Nothing new was obtained when the court visited the seene of crime and Flora (PW1) gave evidence afresh. I can't make out what the complaint in ground 4 of the petition of appeal is all about. The fifth ground of appeal is about the sentence which was meted out on the appellant. The appellant was a young man of 19 years of age. The sentence of a fine of Shs.20,000/= and the compensation order for Shillings 200 1 000/= were unnecessary and no effort was made by the triru. court to find out if the appellant had the means to pay them. Having said all the above I uphold the conviction of the ~~pellant. I also uphold the sentence of ;,-0 ye:~rs imprisonment and corporal punishment. However, the Gentence of R fine and compcnsntion nre quo.shed and set aside. The appeal is otherwise dismissed.

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Court: J.t'L ,J 1 .11 .• " .~ • t .. '· Judgment ,:',{:..ivered this 10th dn.y of July, 2000 in the presence

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