Emmanuel Joseph Mahembwa Vs Republic (Criminal Appeal 121 of 2022) 2022 TZHC 13412 (5 October 2022)
Emmanuel Joseph Mahembwa Vs Republic (Criminal Appeal 121 of 2022) 2022 TZHC 13412 (5 October 2022)
AT DAR ES SALAAM
BETWEEN
VERSUS
(Appeal from the Judgment of the Criminal Case No 101 of 2021 of the
District Court of Rufiji at Utete, F.B. Mujaya, DRM)
JUDGMENT
BADE, J.
The allegations against the appellant can be gleaned from the particulars of
the offence thus on 24th day of April 2021 at Daraja la Mkapa area, Ikwiriri
within the District of Rufiji in the Coast region, the appellant had carnal
knowledge of one ‘X d/o Y’ (whose identity is hidden for her protection); a
fourteen years old girl. The Appellant pleaded not true and the Court entered
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as a plea of not guilty; and the prosecution had summoned five witnesses to
make out their case. The defense was solely based on the Appellant alone.
At the end of the hearing of the prosecution case, the court made a ruling
of a case to answer and the accused person was required to defend himself.
At the end of the trial the Appellant was convicted as charged, on the Offence
of Rape contrary to Ss 130(2) (e) and 131(3) of the Penal Code Cap 16 RE
2019; and was sentenced accordingly to a term of life imprisonment. The
Appellant is aggrieved with this conviction and sentencing and therefore
preferred this appeal. He had filed 5 grounds of appeal for this Court’s
consideration and determination.
The grounds of appeal are reproduced here for ease of reference thus:
1. That the trial magistrate in law and fact for accepting the evidence
averred by the PW1 who states before the court of law that her
daughter was the victim, a dumb and has mental disabilities without
considering the state of the victim on the material day when she states
that she recognized the appellant while she has mental disabilities.
2. That the trial magistrate erred in law and fact to accept the evidence
of PW2 who testify before the court of law that she found the appellant
naked raping her daughter after being informed by one Abdallah. In
what circumstances the one Abdallah did not joined in the case (sic)
as the witness according to the circumstances of the case.
3. That the trial magistrate erred in law and fact that after listen to
evidence of PW1 and accepts the statements of the said witness that
the victim recognizes the appellant through gestures. On what
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circumstances why the victim did not be included (sic) to the list of the
witness if she has capable (sic) to recognize any person through
gestures.
4. That the trial magistrate erred in law and fact after accepting the
evidence averred before the court of law by the witness PW5 which
has full of ambiguity after states (sic) that the victim does not have
bruises, a virgin, (sic) and did not have semen and it is not the first
time for the victim to do that act. Also he did not tell the court on what
time he examined the victim.
5. That the trial magistrate erred in law and fact in that after refusing to
accept my evidence (sic) which is true and rely only on the evidence
tendered by the prosecution side which is framed to deprive me of my
rights (sic).
In that regard the learned State Attorney proceeded to argue the grounds
of appeal in progression combining ground one and two by contending that
the appellant misdirected himself in thinking the trial court erred in fact and
law by admitting a dumb person’s evidence who has mental disabilities.
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He explains that the appellant misdirected himself because when the offence
was committed there was another person who witnessed the offending
action, that person whose name is Abdalla had his evidence admitted in
Court under S. 34B (1), (2), (a) of Tanzania Evidence Act which provides:
The learned State Attorney maintains that while he agrees that the trial court
admitted PW3’s testimony in court without the witness attending court, the
law allows evidence of a person who is not around or has passed away and
thus it was right for the court to admit this evidence.
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Responding to the third ground, the learned State Attorney countered that
he understands the ground to mean to say that the trial court erred in law
and fact by admitting PW1’s testimony where the victim identified the
appellant by gestures, and, that he was not part of the persons listed as
witnesses.
Arguing on the fourth ground of appeal, the learned state attorney rephrased
it that the trial court erred in law and fact by admitting the medical report as
P2 through the doctor PW5 who testified that he could not find any semen,
bruises, did not find the victim as a virgin or any swelling on the victim,
neither did he specify to the court when did he do such an examination. He
firmly counters that PW5 testimony was expert evidence admitted under
section 47 of the Tanzania Evidence Act which provides:
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question as to identity of handwriting or finger or other
impressions are relevant facts.
In court, the medical expert explained that he did find that the victim had all
the signs of having been sexually known before. He was simply establishing
that the victim had been carnally known at that time when the offence was
committed. It was proper that his evidence was accorded the necessary
weight and as such be sustained in the final analysis because he is a credible
witness.
The doctor as a medical expert did testify under oath, and the court was
right to believe this witness.
Arguing the last ground of appeal, the learned State Attorney responded on
the refusal by the trial court to consider the appellant’s testimony which he
reckon is true; and that the court seem to rely on evidence tendered by the
prosecution which, the appellant maintained, is framed to deprive the
appellant’s of his rights.
Mr. Kato took a step back and followed a different approach in conceding
that the trial magistrate did not seem to bother evaluating the appellant’s
evidence. He reckoned that in the trial court’s judgment (page 6 and 7) there
was not much of consideration of the defense testimony in reaching its
verdict, where the court cited the decision in Maruzuku Hamisi VR [1997]
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TLR HC Criminal Appeal no 84 of 1996 holding that the accused version
have only to raise a reasonable doubt, while the burden of proof beyond
reasonable doubt is on the prosecution.
He thus urge this court to sit and reevaluate the testimony of the defense,
if it is found to be lacking as explained on ground no 5.
This was also the holding in the famous case of Jonas Nkize vs Republic
reported in 1992 TLR 213 where this Court (the late Justice Katiti as he
then was) in Tabora affirmed that the general rule in criminal prosecution is
that the onus of proving the charge against the accused beyond reasonable
doubt lies on the prosecution, is part of our law, and forgetting or ignoring
it is unforgivable, and is a peril not worth taking.
Further, the Court of appeal in the case of Malik George Ngenda Kumuna
vs Republic, Criminal Appeal No. 535 Of 2014 (Unreported),
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emphasized that It is the principle of law in criminal cases, the duty of the
prosecution is two fold, one to prove that the offence was committed; and
two that it is the accused person who committed it.
Its on record (pg 5 of the proceedings) that after the Prosecutor introduced
the fact that the witness who is the victim of the offence was actually in
court accompanied by her biological mother, but she cannot testify since she
is dumb and has mental disabilities; the court remarked that it has seen the
victim and has been seen by the accused, and have thus proved that she is
dumb and also mentally disabled, and thus will not testify.
It is my finding that this remark by the court does not establish the
competence or otherwise of such witness who is otherwise allowed to
influence the courts decision on 1) commissioning of the offence; and 2)
identifying the perpetrator of the offence through hearsay. The court could
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at least satisfy itself on the competence or extent of the victim’s of the
offence imbecility or idiocy before deciding it will only rely on hearsay
testimony of other witnesses PW1 and PW2. This is not to over emphasize
the Courts position that in sexual offences, the best testimony is that of the
victim of the offence as was enunciated in the case of Seleman Makumba
vs R Criminal Appeal [2006] T.L.R 379 CAT as well as that of Ally
Ngozi Vs Republic, Criminal Appeal No. 216 Of 2018, Cat
(Unreported) which also followed the above position that...it is settled law
that in sexual offences, the best evidence is the credible account of the victim
who is better positioned to explain how she was raped and the person
responsible.
In P atan Jam al Vali Vs. The State of Andhra Pradesh, dated 27.04.
2021 https://indiankanoon.org/doc/138189653 the Indian Supreme Court had
looked at a disabled person witness, from which I take inspiration
respectfully
“The testimony ….. of a disabled witness… cannot be considered weak
or inferior, only because such an individual interacts with the world in
a different manner, vis-à-vis their able-bodied counterparts. As long as
the testimony of such a witness otherwise meets the criteria for
inspiring judicial confidence, it is entitled to full legal weight.
The law on witnesses of unsound mind is clear in our land too. It alerts courts
on the competency of such category of witnesses. Section 127(1) and (5) of
the Evidence Act, Cap. 6 R. E. 2022 are the pertinent statutory provisions.
They are couched thus, and I quote them for a readymade reference:
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"127: (1): Every person shall be competent to testify unless the
court considers that he is incapable of understanding the
questions put to him or of giving rational answers to those
questions by reason of tender age, extreme old age, disease
(whether of body or mind) or any other similar cause.
May be the issue becomes how does a court satisfy itself that a person of
unsound mind is competent to testify? The course to establish thus
competency in my view is important for purposes of ascertaining her
competency and reliability so as to gauge on the credence of the evidence
to be received in line with section 127(6) of the Evidence Act, Cap.6 R.E.
2022; and for ensuring the fairness of the trial against the appellant. The
omission thus, left doubts on meeting standard of proof of the case against
the offence charged.
This court (Masaju, J.) in a somewhat similar situation where competence
of witness was at issue in the case of Sebastian Mazengo v. Republic,
DC Criminal Appeal No. 121 of 2019, High Court of Tanzania, at
Dodoma (unreported) the learned judge concluded that, for the omission
by the trial court mentioned above, the evidence of the complainant was
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fatally defective and it was wrong for the trial court to rely upon it to convict
the appellant, hence lack of fairness in the trial.
Now turning on the other issue which is the admission of the written
evidence of PW Abdalla Ramadhani @ Bora without being present in Court
which was done unprocedurally. Page 14 of the proceedings record a prayer
by the Prosecutor to admit the written evidence under section 34B of
Tanzania Evidence Act Cap 20 RE 2019 since the witness is not present. This
admission was firstly not objected by the unrepresented accused on
24th/11/2021, but was not admitted on this day. The next hearing day on
07/12/2021, the hearing was adjourned for the prosecution did not have a
witness, and the matter was brought up again on 21/12/2021, where the
Prosecutor is recorded to have wanted to know if the Accused is still
objecting to the admission of Abdalla Ramadhani @ Bora statement.
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………I am at investigation department at Ikwiriri Police Station. I was
there for 9 years. My daily activities is arrest, investigation, patrol and
interrogate. On 24/04/2021 at 19:00hrs when I was in my office I got
information about rape and I was interrogated one witness called
Abdallah. If I see such statement I realize through my name, signature
and handwriting.
PP: Pray exhibit P1 to show PW4
PW4: Yes it is. As I said exhibit P1 contained my name
PP: Pray PW4 to read exhibit P1
Court: Prayer allowed.
SGD F. B. MUJAYA
DRMi/c
17/02/2022
That is all
Cross Examination
- I stated real evidence
- I was assigned to write the statement of Abdallah
Re- Examination
NIL
Section 210 (3) CPA
There is no record of what does the written statement of the PW Abdallah
say, nor is it shown in the record despite the noting of section 210 of the
Criminal Porcedure Aact Cap 20 RE 2019, which is reproduced hereunder for
ease of reference:
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(1)In trials, other than trials under section 213, by or before a
magistrate, the evidence of the witnesses shall be recorded in the
following manner—
(a) the evidence of each witness shall be taken down in writing in the
language of the court by the magistrate or in his presence and hearing
and under his personal direction and superintendence and shall be
signed by him and shall form part of the record; and
(b) the evidence shall not ordinarily be taken down in the form of
question and answer but, subject to subsection (2), in the form of a
narrative.
(2) The magistrate may, in his discretion, take down or cause to be
taken down any particular question and answer.
(3) The magistrate shall inform each witness that he is entitled to have
his evidence read over to him and if a witness asks that his evidence
be read over to him, the magistrate shall record any comments which
the witness may make concerning his evidence.
Obviously this legal requirement was not implemented, but rather some
vague form of it as evidenced by the record of the proceedings.
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“…… we accept that the learned trial resident magistrate ‘summarized
the defense evidence’, much as he/she did summarize the prosecution
evidence. But that was not the complaint of the appellant. It is one
thing to summarize the evidence for both sides separately and another
thing to subject the entire evidence to an objective evaluation in order
to separate the chaff from the grain. Furthermore, it is one thing to
consider evidence and then disregard it after a proper scrutiny or
evaluation and another thing not to consider the evidence at all in the
evaluation or analysis. The complaint of the appellant was that in the
evaluation of the evidence, his defense case was not considered at all
and this is one of his grounds of appeal before us which was
conceded…”
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DATED at DAR ES SALAAM this 5th day of October 2022.
A. Z. Bade
Judge
05/10/22
Court: Judgment delivered in the presence of the Appellant, and the learned
State Attorney. Right of Appeal explained to parties.
10/5/2022
X
A. Z BADE
JUDGE
Signed by: Aisha Bade
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