(CORAM: NSEKELA, J.A., MSOFFE, J.A., And KAJI, J.A.)
THE REPUBLIC cccccccccccccccccc.cc. RESPONDENT
NSEKELA, J.A.:
The High Court sitting at Morogoro convicted the appellant, Florence Mwarabu who was the first accused, and Clavery Rotary, second accused of jointly and together murdering one Joyce Chimagi, aged five years. The appellant was sentenced to suffer the statutory death sentence while the second accused was sentenced under section 26 (2) of the Penal Code to be detained at the Presidentfs pleasure.
Before us in this Court, the appellant was represented by Mr. Mwandambo, learned advocate, and the respondent Republic was represented by Mr. Magoma, learned Principal State Attorney. Mr. Mwandambo filed two grounds of appeal, namely ?
1.
The learned trial judge erred in law and fact in not finding and/or deciding that the charge against the appellant was not proved beyond reasonable doubt.
2.
The learned trial judge erred in not acquitting the appellant in the charge of murder.
In order to appreciate the facts of the case, the background giving rise to the case may be briefly stated. The appellant together with the second accused apparently went to the residence of PW4fs parents, PW5 Magdalena Magulumali and PW6, Gabriel Chimagi, being the mother and father respectively, of the deceased and PW4. Then PW4, the deceased, the appellant and the second accused proceeded on to the river for fishing. On reaching their destination, PW4 left the deceased and the two accused persons together and went downstream, some fifty (50) paces away, fishing while fishing PW4 heard an alarm from the deceased. He rushed to the place he had left them, only to find the deceased alone and crying. The accused persons were not present. The deceased notified her brother PW4 what the two accused persons had done to her, that is, had raped her. PW4 took the deceased home and informed their sister Rosa, and subsequently their parents, PW5 and PW6 who at the time, were at their shamba. The deceased was taken to Ruaha Mission Dispensary and then referred to Mahenge District Hospital where she died on 7.11.91.
In elaboration of the two grounds of appeal, Mr. Mwandambo basically submitted to the effect that the case against the appellant was not established beyond reasonable doubt. He pointed out to a number of what he called edoubtsf in the prosecution case. First, he submitted that the deceased did not mention the appellant as one of the persons who had raped her when she was interrogated by PW1, ASP Mohamed Mbwana. The deceased had mentioned the second accused, Clavery Rotary. Second, he submitted that it was alleged that the accused persons had raped her on the 13.6.91, but she was sent to Ruaha Mission Dispensary on the 17.6.91. The learned advocate questioned the reason for this apparent delay. Third, Mr. Mwandambo submitted that PW4, Gallus Chimagi, was not an eye witness to the incident but simply responded to the alarm raised by the deceased. Fourth, PW4 did not mention in his evidence that a child, Ligawa, aged two years, as being in the party with the accused persons while going to the river. Fifth, the learned advocate complained that PW4 did not testify that there was blood from the deceasedfs private parts, and even if there was blood, it was not necessarily a result of being raped by the accused persons. In their totality, Mr. Mwandambo submitted that these discrepancies in the evidence, cast doubts in the prosecution case. The cause of the injuries to the vagina was doubtful and therefore the benefit of doubt should be given to the appellant.
On his part, Mr. Magoma, learned Principal State Attorney, strongly resisted the appeal. He was however quick to admit that there were indeed some discrepancies in the prosecution evidence but was of the opinion that they did not affect the end result. He also conceded that there was a delay in reporting the matter by the deceasedfs parents to the authorities. This was however due to the fact that the immediate concern at the time was to seek medical treatment for the deceased. The learned Principal State Attorney however stressed that it was not seriously disputed that PW4, the appellant, Clavery Rotary and the deceased all went to the river on the material day as testified by PW4 and exhibit P3, a statement the deceased made to PW2.
The evidence adduced against the appellant in the court below in support of the charge was partly circumstantial. As correctly submitted by Mr. Mwandambo, there was no eye witness to the incident. However, the first fact that was established by the prosecution was to the effect that the appellant, the second accused Clavery Rotary, PW4 and the deceased all left together on the material day and went to the river for fishing. This is clearly established from the evidence of PW4 and exhibit P3, a statement by the deceased which was recorded by PW2, D4151 D/C Charles. When PW4 responded to the alarm raised by the deceased, he found the deceased alone at the place he had left them.
The appellant and the second accused had abandoned the deceased who informed PW4 that the two had raped her. PW4 took the deceased to their home and narrated the incident to their sister, Rosa and subsequently to their parents PW5 and PW6. The deceased was then taken to Ruaha Mission Dispensary. There is also the evidence of PW2 D4151 D/C Charles, who was the investigating officer in this case. He recorded a statement by the deceased, exhibit P3 in which the deceased mentioned the appellant and the second accused Clavery Rotary as the persons who had raped her. PW2 admitted that there was an earlier statement recorded by WP Mary in which it is alleged that only the second accused is mentioned as the culprit. We wish to point out that the so called statement was not tendered in evidence. There is another connecting piece of evidence, that of PW3 Lilian Mkombachepa, a Medical Assistant at Ruaha Mission Dispensary. She testified that the deceased was taken to the dispensary by her parents. On examining her, she found that the deceasedfs private parts were swollen and had bruises. She referred the matter to the District Hospital, Mahenge. We now come to exhibit P3, a statement by the deceased as recorded by PW2 D/C Charles. In this statement, the deceased stated that the second accused was the first to rape her followed by the appellant. The deceased raised an alarm prompting them to escape from the scene of crime, leaving behind the deceased and her young sister, aged two years. Shortly thereafter, PW4 arrived at the scene but already the culprits had left the scene.
It is a fundamental principle of criminal jurisprudence that an accused person is presumed to be innocent and therefore the burden lies on the prosecution to prove the guilt of the accused person beyond reasonable doubt. The prosecution, therefore, in a case of murder shall prove beyond reasonable doubt that the appellant caused the death with the requisite malice aforethought described in section 203 of the Penal Code. It will be recalled that Mr. Mwandambo, learned advocate for the appellant, took great pains to highlight the alleged discrepancies in the prosecution evidence. The learned trial judge considered the discrepancies in the following passage ?
g There are some conflicts in the evidence for the prosecution on as submitted by Mr. Erio, which are rather difficult to reconcile. For example PW5 deceased says the defile not incident (sic) occurred on 6.6.91 while other witnesses say it happened on 13.6.91. Also she claims to have not been aware as to what had happened to her daughter, the deceased, while PW6 the father says she had been aware that the deceased had been defiled soon after she returned from the shamba. The only explanation for this may be the one given by PW6 that PW5 was confused, and still is confused, because of the injury to the deceased and her death. Secondly, while PW3 says PW5 and PW6 did disclose to her after they were pressed that the deceased had been defiled the themselves say they did not tell PW3 so. Then while PW1 says he heard from the deceased that the 2nd accused is the one who defiled her, PW2 says he did not accompany PW1 to the hospital but went there alone. In spite of these conflicts, some of which are rather as stated already, irreconcilable, in the prosecution evidence I am satisfied and settled in my mind, about the general truthfulness of the evidence of Gallus Chimagi (PW4). I am satisfied also that his evidence fully corroborates the statement of the deceased (exh. P3) to D/C Charles (PW2). This evidence taken together conclusively proves that the deceased was defiled and was defiled by the accused persons. They injured her in the cause (sic) of defilement and the deceased died from the injuries sustained during the defilement as per exh. P4.h
It is evident from the judgment of the learned trial judge that he agreed with Mr. Erio, learned advocate, that there were discrepancies in the prosecution evidence. He duly considered them and came to the conclusion that the said discrepancies did not affect the credibility or reliability of the prosecution witnesses as witnesses of truth. The trial judge found that the discrepancies did not detract from the value of the testimony of the witnesses and it was proper for him to disregard the discrepancies. The learned trial judge relied on the testimony of PW4 and the statement of the deceased, exh. P3 in convicting the accused persons, and we have found no reason to fault him.
The learned trial judge also considered the testimony of PW7, Dr. Ryzard Jankiwiez, who treated the deceased when she was admitted at St. Francis Hospital, Ifakara. PW7 testified that the deceased was admitted on the 18.6.91 with gold injuries of the vagina which were very infected.h After the death of the deceased, PW7 prepared a postmortem examination report, exhibit P4, which reads in part as under ?
g Re: JOYCE CHIMAGI, 5 YEARS OLD/5287/91
This is to certify that the above named patient has been admitted to St. Francis Hospital on 18.6.1991 (referred from Mahenge District Hospital) due to septic injury of vagina, laesion of urethra and urine bladder. According to history given by parents the injuries were a result of rape. Despite of intensive treatment she developed necrosis of retroperitonel tissue, ischuria and sepsis.
She died on 7.11.91. The death is in direct connection to her primary injuries.h
Apart from exhibit P4, PW7 testified that the deceased was admitted with gold injuries of the vagina which were very infected.h These were the gprimary injuriesh referred to in exhibit P4. There is also evidence from PW3 who stated that on the 13.6.91 ?
gI checked her and found that truly her private parts were swollen and she had bruises in those parts.h
This takes us to exhibit P3 which was a statement made by the deceased before her death as to what had happened. The statement was recorded by PW2 D/C Charles. As a general rule a court can act upon a dying declaration if it is satisfied that the declaration was made, if the circumstances in which it was made give the assurance to its accuracy and if it is in fact true. (see: (CAT) Criminal Appeal No. 34 of 1995 Hemsi Nzunda and two others v. R (unreported). In view of the evidence of PW2, there is no doubt that the deceased made the declaration. What were the circumstances attending to the declaration. PW2 stated that though the deceased was in great fear, she talked well and was mentally mature. When PW2 was cross-examined by Mr. Mwengela, learned State Attorney, he said ?
gcc I am satisfied, and settled in my mind about the general truthfulness of the evidence of Gallus Chimagi (PW4). I am satisfied also that his evidence fully corroborates the statement of the deceased (exh. P3) to D/C Charles (PW2) this evidence taken together conclusively proves that the deceased was defiled and was defiled by the accused persons. They injured her in the cause (sic) of the defilement and the deceased died from the injuries sustained during the defilement as per exh. P4.h
In the result, we dismiss the appeal in its entirety.
DATED at DAR ES SALAAM this 30th day of January, 2006.
I certify that this is a true copy of the original.
FLORENCE MWARABU ……………………………………………… APPELLANT
VERSUS
The Republic …………………………………………………………… Prosecuto