CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MUGASHA. J.A.. LEVIRA, J.A. And MAKUNGU. J.A.^ CRIMINAL APPEAL NO. 312 OF 2021 ABUBAKARI SHABANI.......... ...............................................APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Mahumbuaa. SRM. Ext-JuM dated the 17th day of May, 2021 in Criminal Appeal No. 27 of 2020 JUDGMENT OF THE COURT 3rd& 8thJuly, 2024 LEVIRA. 3.A.: The appellant, Abubakar Shaban was arraigned before the Resident Magistrate's Court of Arusha at Arusha (the trial court) facing a charge of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap 16 R.E. 2019 (the Penal Code). Upon a full trial, he was convicted and sentenced to life imprisonment. Aggrieved by the decision of the trial court, he unsuccessfully appealed to the High Court where his appeal was transferred to the Resident Magistrate's Court of Arusha at Arusha and being heard by the learned Senior Resident Magistrate with i Extended Jurisdiction vide Ext. Criminal Appeal No. 27 of 2020, subject of the present appeal. It was alleged by the prosecution that, on 24th January, 2018 at Sanawari area within District, City and Region of Arusha, the appellant did have carnal knowledge to one GW (name withheld to protect identity), a boy of 2 Vi years old (whom we shall refer as the victim) against the order of nature. In a bid to prove the charge against the appellant, the prosecution called a total of five witnesses and produced two documentary exhibits, the Medical Examination Report (exhibit PI) and the appellant's cautioned statement (exhibit P2). The prosecution's account started with Flora Richard (PW5), the victim's grandmother. She testified to the effect that she knew both the appellant and the victim, that the victim is her grandson aged 2 Vz years old and the appellant was the houseboy helping her in keeping cattle whom they resided together at Sanawari. On 24th January, 2018 while on her way back from the farm, she was told by the victim that "kaka ameniambia lala, akanivua"; meaning, he was told by his brother to lie down and the appellant removed his (the victim's) clothes. PW5 became suspicious and thus she examined the victim on his buttocks where she found reddish colour and sperms. She interrogated the appellant who is alleged to have admitted that he sodomized the victim. PW5 called the chairman of the family one Alfred Loderiek (PW3) and requested him to interrogate the appellant about what he did to the victim, which he agreed. After that exercise, PW3 told her that the appellant admitted that he had carnally known the victim following the instructions he was given by a witch doctor. In his testimony, PW3 confirmed what was testified by PW5 to the extent that, on 24th January, 2018 he was summoned by PW5 following what had befallen the victim and he as well, informed Peter Lazaro (PW4) about the incident. Upon arriving at PW5's premises, PW3 found the victim with sperms on his buttocks and he interrogated the appellant who admitted the offence as stated by PW5. The evidence of PW4 was to the effect that on 24th January, 2018 about 12:00 noon, he was summoned and informed by PW3 about the incident which had happened. He went to the scene of crime and found the victim with his grandmother. He examined him and found blood and sperms on his buttocks, but the appellant was not around as he was taken to the ten-cell leader. Because of security, he took the appellant to the Police Central together with the victim and were received by WP 3460 Det. CpI. Prudensiana (PW2) who also interrogated both the victim and the appellant and was given the same story as testified by PW5, PW3 and PW4. 3 It is not insignificant to note that in her testimony, PW2 stated that she received both the victim and the appellant at the police on 24th January, 2018 about morning hours. She as well, recorded the cautioned statement of the appellant which was admitted during trial as exhibit P2. At the police, the victim was issued with a PF3 and taken to Mount Meru Hospital where he was examined by Doctor Freedom Eliezer Makiago (PW1). Surprisingly, the account of PW1 was to the effect that he received and examined the victim on 2nd February, 2018, in which examination he found bruises on his anus which was increased abnormally, a fact which led him to conclude that the victim was penetrated with a blunt object. He filled the PF3 (exhibit PI) which bears two different dates; that is, 24th January, 2018 and 2nd February, 2018. That marked the end of prosecution case. The trial court found that the appellant had a case to answer and therefore called upon him to enter his defence. However, despite several adjournments to avail the appellant an opportunity to give his defence, at last he informed the trial court his option to be mute with no reason. Having considered the adduced evidence in totality, the trial court was satisfied that the prosecution proved its case against the appellant beyond reasonable doubt. Accordingly, it convicted and sentenced the appellant as alluded to above. Aggrieved, the appellant's efforts to challenge the decision of the trial court before the High Court botched; hence, a second chance through this appeal. On 8th December, 2022, the appellant filed in Court a Memorandum of Appeal comprising four grounds and on 26th June, 2024 a Supplementary Memorandum of Appeal with four grounds of appeal. Having thoroughly examined all the grounds of appeal, we find that they fall mainly under the following complaint: 1. That, the prosecution evidence was contradictory. 2. That, the victim was not taken to the court to testify. 3. That, PW2 did not read Exhibit P2 (cautioned statement o f the appellant) to the appellant after having recorded it 4. That, section 32 (1) o f the CPA was contravened in arraigning the appellant. 5. That, the trial court did not comply with section 160B o f the Penal Code in sentencing the appellant. At the hearing of the appeal the appellant appeared in person, unrepresented and he adopted his grounds of appeal together with written submissions arguing the Court to allow his appeal. The respondent Republic had the services of Ms. Lilian Kowero, learned Senior State Attorney assisted by Ms. Grace Madikenya and Mr. Godfrey Nugu, both learned State Attorneys. 5 Since the appellant had nothing to add in support of his appeal, Ms. Kowero took the floor and at the onset stated the respondent's position opposing the appeal. Regarding the first complaint that the prosecution evidence was contradictory and thus could not be relied upon to ground the appellant's conviction, Ms. Kowero conceded to this ground. She highlighted that the prosecution witnesses gave contradictory account on when the appellant was taken to the police station. She referred us to page 7 of the record of appeal where PW2 stated that on 24thJanuary, 2018 about morning hours he was on duty and the appellant was sent to her while accompanied by a child and she was told that the appellant had sodomized that boy. While on page 10 of the record of appeal, PW4 testified that on 24th January, 2018 about 12:00 he was informed by Alfred Lodereik about the incident that had happened at his brother's residence, that the appellant had sodomized the child. He went there and found the victim with his grandmother. According to Ms. Kowero, what the two witnesses testified was contradictory because if at all PW4 went to the house of his bother at about noon hours and found the child still there, how possible that PW2 received him in the morning? However, she said, the contradiction was minor and it did not go to the root of the matter. 6 Another contradiction which was also minor according to Ms. Kowero is in respect of the condition of victim as observed by prosecution witnesses. She referred us to page 10 of the record of appeal where PW3 stated that, he examined the victim and found him with sperms. His evidence was a bit different from that of PW4 and PW5 who examined the victim as well and apart from sperms on his buttock, they also found blood as it can be observed on pages 10 and 15 of the record of appeal, respectively. Ms. Kowero pointed out another contradiction regarding the date on which the victim was sent to the hospital for medical examination, which again she said, was very minor. According to her, while PW2, PW3 and PW5 testified that it was on 24th January, 2018, the doctor testified and indicated in the PF3 that he received and examined him on 2nd February, 2018. In support of her argument that the contradictions complained about by the appellant were minor with no effect to the prosecution case, she cited the decision of the Court in EX. G. 2434 PC. George v. Republic, Criminal Appeal No.8 of 2018 [2022] TZCA 609 (6 October 2022, TANZLII) where it was held that, minor contradictions are a healthy indication that the witnesses did not have a rehearsed script of what to testify in court. 7 We have carefully considered all the appellant's complaint in this ground and thoroughly examined the record of appeal. The issues as to whether there were contradictions is not contentious as the record speaks for itself. Regarding the time when the appellant was taken to police, whether it was in the morning as per PW2 or noon as testified by PW4, we find it to be minor as it did not go to the root of the case. As such, this was not among the grounds complained about by the appellant. Another complained contradiction was in respect of the victim's condition. It is so unfortunate that the nature of complaint was not clear. Ms. Kowero tried to respond on it based on the testimonial account of PW3 who saw sperms on the victim's buttocks against the evidence of PW4 and PW5 who saw sperms and blood. We agree with the learned State Attorney that the contradiction is minor because what was supposed to be proved was penetration and not injuries. We therefore agree that the said contradiction was very minor. The last contradiction was on the date on which the victim was sent to the hospital. It is true that PW2, PW3 and PW5 testified that on 24th January, 2018 is when the victim was sent to the hospital, but the doctor (PW1) who examined him in his oral account and the report he filled in the PF3 (exhibit PI) showed that it was on 2nd February, 2018 after lapse of a week. We have carefully read exhibit PI and discovered that it bears 8 two different dates. The first part which is titled "REQUESTFOR MEDICAL EXAMINATION" shows that the victim was sent to the hospital on 24th January 2018 and the same was filled at the police, where as the second part, "MEDICAL DETAILS OF THE ALLEGED CASF^which is completed by the doctor shows that the patient / victim was sent to him on 2nd February, 2018 at 9:00 hours. We further observed that at paragraph (iv) of second part, while filling the medical history, PW1 indicated: 'He was forced to have a sexual intercourse by a young man who is their house-maid. The incidence occurred at Shamba area around 11:00 am on 24/01/2018! The lingering question is whether the victim attended by PW1 was the same victim in the present case? This question is very crucial because the victim attended by PW1 was examined on 2nd February, 2018 and the incidence occurred at Shamba area, while in the present case the scene of crime was at the house of PW5. This suggests that those are two different victims and the contradiction prejudiced the appellant because he was associated with unknown victim. We do not think that the contradiction was minor because among the things the prosecution was supposed to prove that there was penetration which is normally done by a medical doctor and that the accused was the one who committed the offence. As it is now, there is no scientific proof that the alleged victim who never testified was indeed, penetrated. We find merit in this complaint and agree 9 with the appellant that the contradiction as to when the victim was medically examined was not minor because it goes to the root of the matter as demonstrated above. See: Trazias Evarista @ Deusdedit Aron v. Republic, Criminal Appeal No. 188 of 2020 [2021] TZCA 697 (29 November 2021, TANZLII). Replying to the second complaint that the victim was not taken to the court to testify with no justifiable reason, Ms. Kowero admitted that it is true that the victim was not called to testify during trial. However, she submitted that the prosecution witnesses who testified proved the charge against the appellant to the required standard. She went on to state that, the doctor who examined the victim explained that he saw bruises on his (the victim's) anus and it was increased which made him to conclude that, he was penetrated with a blunt object. Besides, she said, PW3, PW4 and PW5 stated that the child was penetrated as they found sperms on his buttocks and when the appellant was interrogated by PW3, he admitted to have committed the offence. Therefore, she insisted that omission to call the victim as a witness did not affect the prosecution case in any way as they were able to prove the charge against the appellant beyond reasonable doubt; in support of her argument, she cited the decision of the Court in Haji Omary v. Republic, Criminal Appeal No. 307 of 2009 10 [2015] TZCA 313 (30 September 2015, TANZLII). She concluded that, this ground of appeal is baseless. We have carefully considered the appellant's complaint regarding failure of the prosecution to parade the victim as a witness and the response from Ms. Kowero, we think, it is incumbent upon us to determine whether such failure impacted negatively against the prosecution case. It is settled law that every person is competent to testify unless the court considers that he / she is incapable due to reasons as it may determine. This is in accordance to section 127(1) of the Evidence Act, Cap 16 R.E. 2019 (the Evidence Act) which provides: "127.- (1) Every person shall be competent to testify unless the court considers that he is incapable o f understanding the questions put to him or o f giving rational answers to those questions by reason o f tender age, extreme old age, disease (whether o f body or mind) or any other similar cause." Therefore, in terms of the above provision, the victim in the present case was a competent witness to testify. The question as to whether the victim was incapable to testify was supposed to be determined by the trial court upon seeing and examining him. It is so unfortunate that the victim in the present case was not sent before the trial court for it to determine whether he was incapable of giving rational answers to the questions that ii would have been put to him because of tender age, as we are told that he was 2 Vi years old whom in terms of section 127 (4) of the Evidence Act was of tender age. Failure of the prosecution to call the victim as a witness was glossed over by the assertion that the prosecution proved its case to the required standard as contended by Ms. Kowero. In the present case, unlike the circumstances in the case of Haji Omary (supra) cited to us by the learned Senior State Attorney, none of the prosecution witness saw the appellant while committing the offence. On page 2 of the above case, it was clearly established that: "The child was aged about 4 years when the appellant appeared and called out the child to follow him to his house. No sooner had the child gone with the appellant into his house the PW3 heard the child crying. Being concernedPW 3 sought the assistance ofPW 4 who stopped eating his lunch and rushed to the appellant's house. After calling out the appellant to open the door without response PW4 kicked it open and as he did so he collided with the appellant who was rushing out o f the room. PW4 prevented him from escaping by holding him and at the same time raising an alarm.... He went into the room where he found the child victim holding his shorts. The witness noticed blood on the bed as well as on the buttocks o f the child." 12 The Court went on to state on page 5 of the decision as follows: "The complaint that the case was not proved beyond reasonable doubt because the victim never appeared in court nor was a finding made to the effect that he was not competent to testify does not in our considered view water down the case for the prosecution.... Though we agree that ideally the reason for the non-taking o f the testimony o f the victim should have been entered on record however such failure neither weakened the case for the prosecution nor resulted in a failure o f justice." We wish to observe that, circumstances under which the above case was established were different from the present case. In that case, apart from the victim, PW4 also happened to arrive at the scene of crime and apprehended the perpetrator; while in the case at hand, none of the prosecution witnesses saw the appellant while committing the offence. Their evidence relied on what they were told by the victim. Therefore, much as we are mindful of the settled law that there is no specific number of witnesses required to prove a fact and that the prosecution has a discretion in calling witnesses to prove a case, we are settled that, the victim was a crucial witness to tell the court the alleged story he told other prosecution witnesses as it is established principle that the best evidence in sexual offences is the evidence of the victim, see: Selemani 13 Makumba v. Republic [2006] T.L.R. 273. We are fortified as we hold that if at all, though it is not stated, that he was incapable of giving rational answer due to his tender age, that was an issue to be determined by the court as we have earlier on demonstrated. We are equally aware of the principle that failure to call material witness entitles the court to draw adverse inference against the proseution. In Soda Busiga @ Shija v. Republic, Criminal Appeal No. 53 of 2012 (unreported), the Court held that: "... it is weii settled that the prosecution enjoys discretion in deciding which witness to call. It is also equally settled law that this discretion must be exercised judicially in order to advance the cause o f justice. The prosecutor, therefore, is under a prima facie duty to call those witnesses, who from their connection with the issue in question are able to testify on material facts. I f such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an adverse inference against the prosecution." [Emphasis added]. In the present case, although the victim was such a crucial witness as we have shown, leave alone sufficient reason, no reason at all was 14 given by the prosecution as to why he was not called as a witness. We are of the increasing view that, although the prosecution witnesses established that 'the victim' was sodomized, they were not able to prove to the required standard that, indeed, it was the appellant who committed that offence. We say so because a mere fact that PW3 testified that he saw the appellant with sperms without any scientific proof that the said sperms were the same as those found on the victim's buttocks does not justify that he is the one who sodomised him. We therefore find merit in this complaint. Ms. Kowero readily conceded to the third complaint regarding failure of PW2 to read the appellant's cautioned statement (exhibit P2) after having recorded it contrary to sections 57 (4) and 58 (4) of the CPA. She urged us to expunge it from the record. The third complaint in this appeal invites us to determine whether there was compliance with sections 57 (4) (a) and 58 (4) (b) of the CPA after recording the appellant's cautioned statement (exhibit P2). This issue need not detain us much. It is a requirement under the law that a recorded statement of an accused person must be read or caused to be read to him by the recording officer who shall certify under his hand, at the end of the record, what he has done. Section 57 (4) (a) of the CPA provides as follows: "Where the person who is interviewed by a police officer is unable to read the record o f the interview or refuses to read, or appears to the police officer not to read the record when it is shown to him in accordance with subsection (3) the police officer shall- (a) read the record to him, or cause the record to be read to him." This requirement is also provided under section 58 (4) (b) of the CPA in the following terms: "58 - Subject to the provisions o f paragraph (c) o f section 53, a police officer investigating an offence for the purpose o f ascertaining whether the person under restraint has committed an offence may record a statement o f that person and shall - (a)~ (b) read the statement to him or cause the statement to be read to him and ask him whether he would like to add or correct anything from the statement" We have perused the record of appeal, particularly the appellant's cautioned statement and we are satisfied that indeed, the said statement was not read to him after being recorded hence, unreliable. In the 16 circumstances, we find the appellant's complaint in respect of his cautioned statement merited and agree with Ms. Kowero that the said statement deserves to be expunged from the record. Accordingly, we expunge exhibit P2 from the record. As regards the fourth complaint on delay to arraign the appellant, Ms. Kowero conceded that, it is true that the appellant was arraigned six months after the incident and the record is silent as to why it happened so. She however urged us to disregard the delay and consider it as a minor flaw while insisting that the prosecution proved the case against the appellant to the required standard. Having heard the parties in relation to this complaint, theissue that follows iswhether there was any justification on delay to arraign the appellant. We shall be guided by section 32 (1) of the CPA which provides: 32.-(l) When any person has been taken into custody without a warrant for an offence other than an offence punishable with death, the officer in charge o f the police station to which he is brought may in any case, and shall if it does not appear practicable to bring him before an appropriate court within twenty four hours after he was so taken into custody, inquire into the case and, unless the offence appears to that officer to be o f a serious nature, release the person on his 17 executing a bond with or without suretiesfor a reasonable amount to appear before a court at a time and place to be named in the bond; but where he is retained in custody he shall be brought before a court as soon as practicable." According to the record of appeal, the appellant was arrested and taken to police on 24th January, 2018 but was arraigned on 2ndJuly, 2018, after lapse of almost six months which at any stretch of imagination cannot be considered to be reasonable period. We say so because the above provision requires an accused to be arraigned as soon as practicable, meaning that the circumstances of the case will determine the practicability. In most cases the delay in investigation, especially in serious offences, is taken into consideration by the court in determining the delay in arraignment. In the case at hand, the record is silent as to why such delay. Besides, we observe that even the charge sheet was prepared on 29th June, 2018 with no apparent reason. In the circumstances, we are unable to go along with Ms. Kowero's line of argument that the delay is just a minor flaw. Arraignment of an accused person as soon as practicable is his statutory right otherwise his freedom of movement is unfairly curtailed if there will be no justifiable reason(s) for not arraigning him/her as soon as practicable. Therefore, since there was no reason advanced by the prosecution as to why the appellant was 18 not arraigned as soon as practicable upon his arrest, this as earlier stated cements the uncertainty as to who was the actual perpetrator which cast doubt on the prosecution case. We allow this ground of appeal. In response to the fifth complaint regarding noncompliance with section 160B of the Penal Code on the sentence imposed, Ms Kowero submitted that, according to the record, the appellant was 18 years old at time of commission of the offence. Therefore, she conceded that the sentence of life imprisonment meted out on him by the trial court and sustained by the first appellate court contravened section 160B of the Penal Code which protects rights of children of or below 18 years against cruel sentences. Therefore, without quashing the appellant's conviction, she urged us to allow this ground of appeal, set aside the life imprisonment sentence and give the appellant a proper sentence. The appellant made a very brief rejoinder requesting the Court to set him free. We wish to note at the outset that, this ground of appeal was not raised before the first appellate court. Generally, the appellate jurisdiction of the Court in determining appeals is conferred by the law and it is restricted to the appeals from the High Court or subordinate courts with extended jurisdiction in terms of section 4 (1) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019. This provision reads: "4.-(1) The Court o fAppeal shall havejurisdiction to hear and determine appeals from the High Court and from subordinate courts with extended jurisdiction." However, despite the above stated position, in practice, especially where the complaint involved is on a point of law, if it is not raised or determined by the High Court or subordinate court with extended jurisdiction, like in the present case, the Court is not precluded from entertaining it to meet the ends of justice. With that understanding and having been satisfied that the appellant's fifth complaint raises a point of law, we proceed to determine it as it calls upon us to determine, whether the sentence of life imprisonment imposed on the appellant was illegal. The appellant's complaint was grounded on section 160B of the Penal Code which provides as follows: "160B. For promotion and protection o f the right o f the child, nothing in chapter XV o f this Code shall prevent the court from exercising- (a) reversionary powers to satisfy t h a t cruel sentences are not imposed to persons o f or below the age o f eighteen years; or (b) 20 discretionary powers in imposing sentences to persons o f or below the age o f eighteen years." [Emphasis added]. The above provision prohibits cruel sentences to be imposed on a child of or below the age of 18 years in respect of offences under Chapter XV of the Code, which provides for offences against morality including, unnatural offence. In the present appeal the age of the appellant was not in controversy as right from the charge sheet it was indicated that he was 18 years old while committing the offence and throughout the record his age was not disputed. In the circumstances, being guided by the above provision and taking into consideration the age of the appellant which was 18 years at the time of commission of the alleged offence, we find that the sentence imposed by the trial court of life imprisonment and sustained by the first appellate court was cruel one and illegal. Therefore, we agree with the parties that, indeed, there was contravention of section 160B of the Penal Code in sentencing the appellant as he was 18 years at the time of commission of the alleged offence and hence, illegal sentence. We find merit in the fifth complaint. See: Paul Juma Daniel v. Republic, Criminal Appeal No. 200 of 2017 [2020] TZCA 1753 (28 August 2020). All said and done, we are satisfied that the prosecution case was not proved beyond reasonable doubt. Consequently, we allow the appeal, 21 quash conviction and set aside the life imprisonment sentence imposed on the appellant. We order his immediate release from prison unless otherwise he is lawfully held. DATED at ARUSHA this 8th day of July, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 8th day of July, 2024 in the presence of the Appellant in person and Mr. Alawi Miraji, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. 22