Wang’anyi v Republic (Criminal Appeal No. 88 of 1999) [2000] TZHC 670 (10 July 2000)

94 TANZANIA LAW REPORTS [2002]T.L.R. a MICHAEL S/O MAGIGE alias WANG ’ ANYI v. REPUBLIC HIGH COURT OF TANZANIA B AT MWANZA (Mroso, J.) c CRIMINAL APPEAL No. 88 OF 1999 (From the District Court of Musoma District at Musoma, RI Rutatinisibwa, Esq Resident Magistrate, in Criminal Appeal No. 712 of 1998) jj Criminal Law - Rape - Rape of a girl of the age of seven years - Admission of PF3 - Visit to locus in quo. Criminal Practice and Procedure - Sentencing - Fine, compensation, imprisonment and corporal punishment. F The complainant, Flora, was aged seven years. She was sent by a house-girl to go to a kiosk and buy beans. She went to a kiosk across the road, about 55 paces away, operated by the appellant, who took her behind a living house and had sexual intercourse with her. He gave her sweets and TZS. 100 and told her not to tell anyone. On her F return home, she was crying and vomiting but disclosed nothing. Two days later she revealed the truth to her father, who took her to the Police Station and obtained a PF3, and then to hospital. She was found to have bruises in her vagina and the hymen was partially perforated. In the course of investigation, Flora took a police officer to G the scene; the police officer drew a sketch-plan which was tendered in evidence. After both the prosecution and defence had close their cases the trial magistrate visited the scene and took afresh the evidence of Flora. The appellant, who was 19 years old, was convicted of the offence of rape and sentenced to 30 years jj imprisonment and twelve strokes of corporal punishment. He was also ordered to pay a fine of TZS. 20 000 and pay the complainant TZS. 200 000 as compensation. Held: (i) The admission 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 the I accused, or the court considered it necessary, that the doctor who prepared it be

MICHAEL S/O MAGIGE alias WANG ’ ANYI v. REPUBLIC 95 called to explain the report contained in it; as the appellant indicated that he had no objection to its production at the trial, his complaint at the appellate stage that the PF3 ought not to have been admitted cannot be taken seriously: (ii) There were no compelling circumstances for the court to visit the scene of crime, as visit by which the trial magistrate risked turning himself into a witness, even taking the complainant ’ s evidence afresh at the scene, after both the prosecution and the defence had closed their respective cases, while no one had requested the complainant to be recalled to clarify her evidence or to be cross-examined; however, the course which the trial magistrate adopted, though unnecessary, did not prejudice the appellant; (iii) As the appellant was a young man of 19 years of age, and no effort was made by the Trial Court to find out if the appellant had the means to pay, the sentence of a fine and order of compensation were unnecesary. Appeal dismissed, but the orders of fine and compensation quashed Mr Kabonde, SSA, for the Republic JUDGMENT (Delivered 10 July 2000) Mroso, J.: 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 TZS. 20 000 and to pay TZS. 200 000 compensation to the complainant young girLJThe 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 October 1998 the young girl Flora (PW1) was sent by a house girl - Helena Simon (PW2) to buy beans and was given TZS. 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

96 TANZANIA LAW REPORTS [2002]T.L.R. A and TZS. 100. He told her not to tell anyone. When she returned home Helena (16 years old) saw her with the sweets and the TZS. 100. She was crying and vomiting. When Helena questioned her, she said she was feeling a headache. Two days later Flora (the young B girl) told Helena that she felt pains in her genitalia when urinating and giving out stool. Helena informed Flora ’ s father when he came home in the evening. Flora told her father the truth of what had happened. On the following day Flora ’ s father, Deogratias (PW3), who is also c a policeman, took her to the police station for a PF3 and then to a hospital for medical examination. The medical observations in the PF3 which was tendered in evidence at the trial shows that there were bruises in her vagina on the labia D majora and labia minora. The hymen was partially perforated. The appellant was arrested and prosecuted for the offence of raping the young girl Flora. At the trial the appellant gave evidence on oath. He did not have E witnesses. In his defence he admitted Flora had been to his kiosk to buy soap, not 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. F The Trial Court having heard all the available evidence, including sworn evidence from Flora after it was satisfied she knew and understood the nature of an oath, found the offence to have been adequately proved and convicted the appellant as charged. G In his petition of appeal, the appellant raised five grounds of appeal. In the first ground of appeal he challenged the admission of the PF3 as 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 had opted to be absent during the hearing of the appeal and, therefore, I could not ask him to elaborate on the ground of appeal. I must confess that the admission of a PF3 as evidence produced by an

MICHAEL S/0 MAGIGE alias WANG ’ ANYI v. REPUBLIC 97 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 appeal level to take seriously his complaint that it ought not to have been admitted as evidence. The appellant ’ s second ground of appeal is that the trial magistrate erred in holding that identification was not an issue at the trial. Again, this complaint is a mere second thought. The prosecution case was that the appellant lived just across the road from where the girl Flora lived. Secondly, although the appellant said in his evidence that he had not known Flora yet he admitted that she came to his kiosk to buy soap, according to him. Thirdly the girl was able to take the investigating police officer, PW4. - WP Detective Sergeant Neema and showed her the place behind a living house where she was raped. According to the sketch plan, the kiosk in which the appellant sold goods was in the same compound on the residential house 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 magistrate could not, in those circumstances, entertain doubts regarding the identification of the appellant and, therefore there is no justification to fault him. In the third grouncbof appeal the appellant criticized the Trial Court in visiting the locus in quo. I would agree with the appellant that there were no compelling circumstances for the court to visit the scene of crime, especially 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 locus in quo was drawn. In visiting the scene of crime the trial magistrate risked turning himself into a witness. He even took evidence of Flora afresh

98 TANZANIA LAW REPORTS [2002]T.L.R. at the scene, and this being done after both the prosecution and the defence had closed their respective case. No one had requested that Flora (PW 1) be recalled to clarify her evidence or to be cross examined. I asked Mr Kabonde, Senior State Attorney to address me on the recourse which the magistrate had taken. 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 v. Owen (1) and Republic v. Sulivan (2). I am satisfied, however, the course which the trial magistrate adopted, though it was unnecessary, did not prejudice the appellant. Nothing new was obtained when the court visited the scene 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 TZS. 20 000 and the compensation order for TZS. 200 000 were unnecessary and no effort was made by the Trial Court to find out if the appellant had the means to pay them. Having said all the above I uphold the conviction of the appellant. I also uphold the sentence of 30 years imprisonment and corporal punishment. However, the sentence of a fine and compensation are quashed and set aside. The appeal is otherwise dismissed.