Director of Public Prosecutions vs Msafiri Allan (Criminal Appeal No. 61 of 1995) [1998] TZHC 2519 (16 October 1998)

·..:..;···: ·.--. IN THE HIGH COURT OF T. .'-.NZANIA AT MBEYA CRJHINAL APPEAL NO. 61 OF 199? {;original Criminal Case l\too 12 of 1995 of the District Court of i'1beya District qt. Mbeya · Befo;e: M~$~ Lwct.butiti - District Magistrate) THE DIP.:SCTOR OF· PUBLIC· PROSECUTO.B, ~ APJ:LIANT : ,.Versus ocooooo<1eoooo;,ocroeooo · .. • .. -. ,' •. ---.£..·--~ -~ .cc.,.., ...... ..· ............ -,. :e.- .... ,.- ;",· ,, •·--••• a:-..o JUDGMENT :· ~ : ! . . . ., . ... T11:is, is ?-17..: appeal by. tl.1e __ Director of Public Prosecutions against' the·· .-,·:. acquittal~ of th.e respondent,, Hsafiri Allan Shomari, of the offence of .. ' . (.:_ ·[ i ! •··. . . . .. . . . . Defilement of a. girl under fourteen years of age, contrary to s·ection· 136(1) of the Penal Coc3.,e, by th_e district co11rt of Mbeyac The appeal was argued · · before. me by the learned Senior State Attorney' Nrs. Nakuru' and· esi,stea· by Mr, l:1bise, learned _advocate for the respondent. T'.r1e girl, Prisca Hwaruanda (P1:!1), .was at t_he material time a standa.rd seven pupil at a pr'imary school in towno She was allegedly aged 13 years. She resided 1;1ith her mother, Roda Mwangalaba (PW6), at their house :iJ.1 Block T area, Mwanjeli.11a ;Jithin the Municipality of Mbeyae The respondent 11,ras their close neighbour and friendo He resided in a house which was about -50 metres away. The houes faced each other and there was a road passing between thm. PW6sold beer at her house and the responden:twas,her regular customer. She was a widoJ and it came out clearly that she was the pararnour of the respondent before h:i.s family joined hi.'11 :iJ.1 Mbeya. On 25 o 12. 9L~ at 1 Oo 00 pm PW1 was at their house with.· her . cousin, . Ibrahim '· T. Viwangalaba (P'd5). They were sellbg beero Her moth~r (PW6) was _ yet to return from work. .The respondent arrived there and ordered two bottles of beer., One was ~pened for hirn and he dranked it. He took the _pther with him . ~ ,. . and asked PW1 to escort hini home for the bottle and .. money. .But. the respondent.

... did .. not head for home. He took the way .to a closeby Theological Collegeo FW1 seemed to resist but the respondent held .her by the hand and pulled her along tell:ing her not to worry~ rhere were houses 'a.l:L along. : :Tne respondent took her to some trees with:in ~_he College compound. He forcibly re.rrio:ved her underpart and skirt and had sexual :intercourse with her.· She cla·imed it .was her first time to have sexual intercourse and she felt pai:1.s. But she did not raise an .. ,, alarm and she did not say the responden.i:; had threatened her. s:'he coitus bok about one hour, and the respondent then left her tell:ing her not to teJ.l any person. Meanwhile PW5 became apprehensive as time went by without PW1 returning

home. Re went to· t'he house of the respondent and was told by his wife, Pendo-' Chagula Zinza (DW2), · Uiat · the respondent was not at home. He went•·±n-· search '· of PW6. He found her and told her how the respondent had left with PW1 who had not returned homeo P\1b began to· look for PW1o She found her near the college crying. P'd1 told her what the respondent.had done to her,. She did not examine her. She did not take her home. ,She did :not 11:otif:,r or summon any neighbours. .. She took her' straight .to the house of the respondent and squeezed her futo the • -· sitting roorn.'through the window. She told her to rema:in tl.1ere. The res:pond~_nt and his wife'DW2 were present. A hot exchange of words ensued between the respondent 0 "kd:: PW6. PW6 locked PH1 in the house and went to Mwanjelwa police .. post. It ,atii then about 11.45 pm. At -tle ·police post PW6 found the officer on duty, PC Hamisf (PW?). She reported to him that PW1 was raped. PW? accompanied her to the house of the respondent. The respondent was absent, but his wife (DH2) was outside the house., PW7 found PW1 locked fo the house• DW2 told PW? that it was P\c/6 who had locked .. her therein,, This was confirmed by PW1 when the house was opened,, rw6 told F.W7 that PW1 was defiled by the respondent in the house of the responde'lto But DW2 told PW? that PW1 was not raped and that there was misunderstanding between her . --. i:. ··. ·• husband (the respondent) and PW6. According to P1•J1 she led the .. -ool ic.e (HJ?) to

• -;- ~- . , . ·.· tcirn the sCene .of. crime that same night where her ·underpart was :f'iJund. But -this .... c•eo900•0,-/•3

..

• 3 ... - '' was denied by PW7 and PW6. · PW? did nci't visit the scene~ No ·visit .to the.-scene was made that night.. PW6 hired a mofor vehicle driven by John ·Hwakika9. (P\13,! which took them (PW1, PW6 and PW?) to the police pocto ••P..17 issued>a :PF3· (Ext C) and referred PW1 · to l1eta Hospital· in to,,m.~ · They e.rrived at: tb.e •:·; ,•·, . . hospital shortly after 111:idnight~ ,They fpund no doctor at the hospi talo The evidence as to ~hat :tra:r:fap-ired :tp,erafter was in serious conflict. .• ' ... PW1 said she was examined, treated; ariid: :· discharged that same night,. But PW6 said PW1 was admitted to the hospitai·Jand e:ra.mineq.· by a doctor in. the morning of the followig day (26o 12 94 h An'd·•,:PW3 said he left; PW1 and PW6 .at the hospital and returned: for them· i~' thi/•morriil.11g. Th,e version of the exa,mining doctor., a Docto~ Oscr (PW2), was :i.nter'esting •. · . He said he reporyd for duty after midnight on 25012., 94~

Du t he did not say. ·he saw and examined PW1 that night. He said he examinecl.'P;il/1 a't 9--30' lu'vf~ :-,·He ·said pe_reported for duty at 8.00 AM on 26. 12094.. The tui{ for P~1 came ;and·-he then examined her. He recorded in Ext c to lVP examined PW1 on 26d2.94,at 9.45 AM. He found the hymen lacerated wHh some bleeding from the torn areas. He. could ncit -fake vaginal smear on ,1:tcc,9,.unt of the bleeding. not wearing an· underwear. .. . cori'tluded that PW1 was The following y (26!12.94) at 5.00 pm the investigator, D/Sgt Ivo (PW4') was led. to' the scene by. PWJ y1hre he. found·-.~ torn u±iderwear (Ext A) which PW1 claimed she had forgotten it there,. At the house of PW6 he was shown a t~rn kirt (t · B) which Pw1· claimed ,she :was :i,,rear:i;,.TJ.g at tpe time of the incident. The respondent, according to PW4, told 0 him that the 1iJhole matter was a creation of PW6 whq was aggrieved by the fact that he had to .plit a stop to their extramarital affair when his.wife and children joined him in l"!beya. The trial court also visited th ·s·cene. It was about -:¼ of kilometre from the house of . P1i6; ' There were: honse. on the. left a:r:id the Theological College on the eastern ;Dpoii' the prosecution closip.g its casE?_, the public prosecutors surprisingly' rose from his table and handed over t,- the trial magistrate a copj' of t1hat was : ~ ·. :,. ,. ....... • ... el 4

claimed to be a birth certificate of PW1o Wiuh eveh gr'eater surprise, the_ trial magiBtra te ad.mi tted ft in evidence· and marked it - Ext De In it the date of birth of PW1 is give'n ;s 9~7 .. s< The respondent denied the charge in his swor;n defence at the ttialo Prior to the day in question he had told PW6 that their extramarital affair had to stop on account of tht- his' wife (DW2) had joined him in Mbeya.. It would appear that he had not disclosed to p,J6 that he had a wife, and the fact of there having been a wife aggr'ieved PW6 who vowed to teach him a lesson,. On 250_12.,94 . between 80Li-5 pm and 10,.00 pin he was at home .with his wife.- (DW2). PW6 arrived there with PW1, a woman, and twc:i men· She droppeq PW1 into the sitting room through the win.dow., 'I'he remaining four then entered. the house. through the door and assaulted the respondent who had to· go in hiding behind the house. PW6 ordered PW1 to remain in the house and proceeded to ,the Hwanjelwa police posto The story then went on as already told. The Director of Public Prosecutions prefFred four grounds of appeal which are:

1. 'rhe learned trial ma,gistrate_ erred on point of fact and law .when he acquitted the. res 3 Jl"lndent of t:ne offence charged when the prosecution had proved the case against him beyond any reasonable doubts. 2a ·The trial magistrate erred on holding that_ Doctor's report Exhibit ;,c;i was not corroborated, a· fact which he knew not to be.true. 3 0 1 rhe trial .ITlr.?:gist:rate clearly reflect that he was impartial when he accepted the whoJ.ly story of the respondent in the circumstances of the case. 1 +. - The: trial magistrate erred on holding that there were some contradictions stories a~ to-h•w H.T'l was defiled by the t .,.. - - respondent'! the fact which is not true. The trial court found the credibility of PW1, P1:J2 and PW6 questionable on account of contradictions and conflicts 1.-1hich obtained in their evicforice. With

• respect, I find that find:ing unassailable on the evidence and in the circu.rnstanceso •.eO•O~.D/ , 5

• 5 Indeed the entire prosecution case was fraught with d:{satisfaction m various aspectso Firstly, there i,1ere the contradictions and inconsistencies which t ,-pointed out earlier b this judgmento The p_urpose of pointing out contradictions, . discrepancies e cetera in the' testimony te:r;idered by the·· prosecution is to weaken ' :, -··. --~ j . , . their case and to create doubts as to the guilt of;anaccused person. I respectfully agree with Mrs Malruru that they are likely to obtain iii. any evidnce for the ,, pros1{ction. Indeed if there are none, that would be of itself caus1= for some suspicion that the stery had been rehearsedo Their effect, however, would depend upon their seriousness and materialiy. In this case, I would respect- fully agree with the trial magistrate and Mro Mbise that the conflicts I have indicated were serious and material. PW? was the first policeman to arrive at the h()tie of the respondent that night. Wht he 'told the trial court, therefore, . _,, __ was significant. He said PW6 told him the incident took place at the house of the respondent. Thts woul.d account for the ciel.iberate effort by PW6 :to portray . that pfoture. She had'J by h.er ovtn adsnission. 5one to the extent of planting . PJ,J1 ·in the house rT:f squeezing her through the window. Thi~ had gone a long way in support of the respondent I s clai.'11 that PW6 had vowed to get him in. trouble at any cost. Indeed the whole affair strongly .smelt of a sha.m. '.['he evidence of PW2 and his findings on Ext C were suspecto · He said there was so m1.,1c;h, .olood • • • J • in,.the vagina of PW1 that he failed to get a vaginal smearg If that were the ,-case, and. in view of that the rurp?rted exa."llination took place the :follo\ving morning, the blood ought to hav~ been see~· by the persons ,:1ho got into cont3:ct vJith her during the night dripping down her legs or smearing or sta-ining her clothes particularly so when, as,, claimed by PW2, she wore no underwear. But nothing of that sort had taken, place. Neither PW3 nor PW7·nor.DW2 had noticed anything amiss with P~J1. To them PW1 appeared normal and in good'formo Not even PW6 had noticed anything unusual about PW1. She had not even bothered to. examine her. She had not even bothered to summon neighbom::s1' . They m1eht have insisted on examining her physically,. -Her main concern OI\ preoccupation, it would appear, was- tci imp:::.icate the r.esponde11t. · o o or.•• o o o o.i 6 • •• •' .... • I

6 Secondly, there was the question of the competency of PW1 as a witness. She was a child of tender? years within the meaning of section 127(5) of the Evidence Act 196? o But she was sworn and gave evidence· before a voire dire examination was conducted. This was an error at lawo 127(2) of the . pvidence Act requires the holding of a voire dire exami_riation before swearing ;in a child of tender years,, The procedure to be followed is thiso A magistrate should ascertain by a voire dire examination before a chil-d gives evidence whether he understands the -nature of an 6atho If y'es, he should be sworno If not!, the ;magistrate should then proceed to satisfy himself as to the child's intelligence and understandbg of the duty of speaking the truth., If yes, the evidence can be taken unsworn. Only after being satisfied on these matters, . ,• . .,; : : . . ; - .... and recordirlg his satisfa·ction :in the r·ecord of proceedi-ngs, can a magistrate ... ' .. rece.ive a child's evidence swrn or- °1:iiis\4orn affi.:tinecf or unffirmedo The Court of Appl for J!'.a,stern Africa held iri Jfya~~-'s/o Bi_cji~n'."- V •E-• :· ( 1958) E,.-Ao 190, that . .strict, compliance ,ith the provisions df section· 127(2Y of the Evidence ··1 •. ·• ~ . •. ' . . A.ct i5. ne,cessary ·.and non:....compliance might weil ·resui t 111 the quashing of a conviction in a case where tl1r1 other evidence before the cou'rt is insufficient -· in itself to sustain the., conviction.. In this case,. the evidence ,implicating the respondent was esentially only that of PW1, and there was no other evidence sufficient in itself to - support a conviction •. And thirdly, there was no proof of age •. For the offence charged, prqof of age is an essential ingreciien·ta 'I'he girl must be proved to be 1mder f?.1}!...~~I?-. years of age._ Ag'e may be proved by the production of a certified copy of the entry of her birth in the register of births coupled with identification of the girl with that named in the certificate. - Proof of age may aJ_so be by evidence of age by· persons <iho · know · the girl and are familiar with the circumstances. of her 'birth~: In this ase; nly PW1 said she was thirteen years oldo Neither ~ ......... --- t.. PW6 nor any· other person s'poke · of her age With respect to Mrs. Makuru, 'Ext D was not evidence properly or improperly before the trial court •. -J:t was not ·; .. ..... ;,,_!: :· '. - . evidence at allo The manner of its intr:d~ction in court was not only

... 7 contrary to law but it could not in any event have conferred on it the status of being evidence. The public prosecutor was not a witness. He was not S1'1orn or affirmed. In lav.r, only witnesse,s, sworn or affirmed, may give evidence and tender documents in court. And more, ]i:xt D was not certified, and it was not identified, let alone with PW1. In the circumstances of this case, strict proof of age was necessar;;r on account of that the given age of thAteeE- years was too close to the age of fourteen years. I would conclude by saying that even assuming that Ext D was properly before the court it would not in itself have established that PW1 was under fourteen years of age. Going by its contents PW1 was born on 2.7.8_1_~ She finished her thirteenth years on J.•2•3.- She was,. therefore, already in her X?:.1_r_t_.ei:. years at the time of the alleged offence Oi1 25.12. 94_. She was thus not under fourteen years of age. For the foregoing reasons, I find no merit in this appeal, which is, in consequence, hereby dismissed in its entirety. ..,·,i_.,--··-- ....... , ·, BoP• MOSHI AT MBEYA. 16 October 1998. For Appellant/Republic: Mr. Hulokozi, s.A., For Respondent: Mr. Mbise, advocate.