CRIMINAL APPEAL NO 659 OF 2021 BARNABA BAZILIA HONOLI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: JUMA, C.J.. RUMANYIKA, J.A.. And KHAMIS. J.A.^ CRIMINAL APPEAL NO. 659 OF 2021 BARNABA BAZILIA HONOLI..................................................... APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the Judgment of the Resident Magistrates' Court of Shinyanga at Shinyanga, Extended Jurisdiction) (Mrio, PRM. Extended Jurisdiction.^ dated the 25th day of October, 2021 in (DO Criminal Appeal No. 29 of 2021 JUDGMENT OF THE COURT 23rd & 28th October, 2024 KHAMIS, J.A.: The appellant was charged with unnatural offence in the District Court of Kahama contrary to section 154 (1) and (2) of the Penal Code, Cap 16, (the Penal Code). The charge encapsulates that, on 23 day of August, 2019 at about 15.00 hours at Malunga area within Kahama District, Shinyanga Region, the appellant had carnal knowledge of a school boy of 5 years old against the order of nature. The identity of the victim is concealed and shall be referred to as PW1 for the purposes of this judgment. When the charge was read over to him, he pleaded not guilty and the matter proceeded to trial which involved four prosecution witnesses. The appellant was placed on defence and maintained his innocence after which the learned Magistrate (E.N. Kyaruzi, SRM) convicted him as charged. He was then sentenced to life imprisonment. Disgruntled with the conviction and the sentence meted out to him, he preferred an appeal in the High Court of Tanzania, Shinyanga. In terms of section 45 (2) of the Magistrates Courts Act, Cap 11, R.E 2019 (the MCA), the appeal was transferred to the Resident Magistrates' Court of Shinyanga, Extended Jurisdiction, and marked as Criminal Appeal No. 48 of 2020. Having heard the appeal, the first appellate court (Mrio, PRM, Extended Jurisdiction) dismissed it for lack of merits. Being dissatisfied with the decision of the first appellate court, the appellant preferred the instant appeal premised on four grounds, namely: One, that the first appellate court erred in law and in fact in failing to find that the prosecution failed to establish its case beyond reasonable doubts. Two, that the first appellate court erred in law and in fact to accept the evidence of a medical doctor (PW4) and father of the victim (PW2) who failed to prove the age of the victim. Three, that the first appellate court misdirected itself to sustain a conviction and the sentence meted against the appellant in absence of proof that sperms found in the victim's anus belonged to the appellant. Four, that the first appellate court misdirected itself in dismissing the appeal whereas the trial court had pronounced a sentence without first entering a conviction against the appellant. Briefly, the background facts leading to the appellant's arrest, arraignment, conviction and sentence are encompassed in the oral testimonies of the victim (PW1); his father, (PW2) whose identity is also concealed; the appellant's roommate, Jackson Richard @ Ngusa Richard (PW3) and; the medical doctor, Ame Kawasa (PW4). The victim (PW1), a five years old kindergarten pupil told the trial court that, on the material date and time, as he walked back from school, he was intercepted by the appellant who promised to buy him sweets. He was routed to the appellant's nearby bedroom where he was undressed. His cries for help were silenced by the appellant who lubricated his anus with a soap and penetrated his manhood which caused him great pains. After he was done, the appellant warned him not to disclose the incident to anyone. On arrival at home, the victim's mother noticed his uneasiness and inspected him physically only to notice he was sodomised. On questioning, the victim disclosed that Barnaba, the appellant, had buggered him. The mother relayed the unfortunate news to the victim's father, PW2, who sought further details from the victim. Eventually, the victim led his father to the appellant's bedroom. On further examination, the victim said the appellant's room was not far from their home. On cross examination, he recognised the appellant as "Shaaban" but on re-examination, clarified that, the appellant used the two names, "Barnaba" and "Shaaban", interchangeably. PW2 testified that the victim was 5 years old having been born in the year 2014. He stated that when the victim returned home on the material date, he could hardly walk. On inspection, PW2 and his wife (the victim's mother) noticed blood oozing from his anus. On questioning, the victim identified the appellant as the culprit and led the way to his room. Upon entering the room, PW2 saw a basin of water, soap and drops of blood on the floor and on the mat. By that time, the appellant was not in the room. PW2 reported the incident to the ward executive officer and the street chairman who went to the room immediately. The appellant was later arrested as he arrived at 19.00 hours. PW3 Jackson Richard, shared a room with the appellant who was well known to him. On the date of the incident, the witness was not at home but on arrival at 20.00 hours, neighbours informed him that his roommate was arrested in connection with the incident in question. He was not cross examined by the appellant. PW4 Ame Kawasa, a medical doctor at Mwendakulima hospital, examined the victim on 23 August, 2019. He recalled the boy aged about 5 or 6 years was accompanied by his parents and a police officer. Upon medical examination, he noticed presence of bruises, blood stains and sperms in and around the anus. The doctor concluded that the visible signs established anal penetration. He filled in the PF3 that was admitted as exhibit PI. On cross examination, the witness said he could not precisely say whose sperms were in the victim's anus but maintained that the victim's anus was penetrated by force. After closure of the prosecution case, the trial magistrate found the appellant had a case to answer. He was therefore placed on his defence and testified as DW1. He denied the charge levelled against him and claimed that on the date of the incident, he was not at home but arrived at 19.00 hours only to be arrested for unknown offence. Four days later, on 27 August, 2019, he was arraigned in court. He also claimed that the victim had failed to identify him as he referred to him as Shaaban which was not his name. The appellant maintained that the sperms found in the anus of the victim was not his and insisted the charge was trumped up. On cross examination, the appellant said the victim was not known to him but his father, PW2 was well acquainted before the incident. On further cross examination, DW1 opened up that neither PW2 nor other prosecution witnesses had grudges with him. When the appeal was set for hearing before us, the appellant was present in person, unrepresented. The respondent Republic was ably represented by Mr. Anesius Kainunura, learned Senior State Attorney who joined forces with Mses. Nancy Mushumbusi and Immaculata Mapunda, both learned Senior State Attorneys and Mr. Leonard Kiwango, learned State Attorney. When called upon to address the Court, the appellant preferred to respond to the submissions by the learned State Attorneys. On behalf of the respondent's team, Ms. Immaculata Mapunda forcefully submitted that the appeal was barren of merits and urged us to dismiss it. Addressing the four grounds inconsecutive, she contended that, the fourth ground was baseless as the trial magistrate entered conviction before rendering the sentence. To that effect, she drew our attention to page 36 of the record. On the third ground of appeal, she asserted that, PW1 and the medical doctor (PW4) sufficiently established that it was the appellant who penetrated the victim's anus and therefore eliminating any need of a scientific analysis. She spotlighted page 23 of the record. On the second ground of appeal, Ms. Mapunda submitted that, the victim's age was sufficiently established by three witnesses, to wit: PW1 as shown at page 13 of the record; PW2 as manifested at page 16 of the record and PW4 who assessed the age at page 23 of the record. She backed her submissions with our decision in Isaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 (29 April 2016) for the proposition that, the evidence as to proof of age may be given by the victim, his relative, parent, medical practitioner or, where available, through production of a birth certificate. On the first ground of appeal, the learned Senior State Attorney submitted that the prosecution proved its case beyond reasonable doubts. She cited section 154 (1) (a) (2) of the Penal Code for the ingredients of the unnatural offence and contended that, the offence was proved beyond reasonable doubts. She asserted that the four prosecution witnesses proved that, it was the appellant who had a carnal knowledge of the victim against the order of nature as shown in PF3 (exhibit PI) and therefore, the sperms in the anus belonged to him. She insisted that, the two main elements of the offence were carnal knowledge and against the order of nature. Further, Ms. Mapunda contended that, the impugned decision of the first appellate court could not be faulted because the appellant failed to cross examine the material prosecution witnesses and therefore did not create doubts on their versions of the incident. She cited George Jonas Lesilwa v. Republic, Criminal Appeal No. 374 of 2020 [2024] TZCA 269 (16 April 2024) wherein this Court expressed its stance that, failure to cross examine a witness on a material fact may infer an admission of that fact. To buttress her points, she led us through pages 13, 17, 16, 20, 23, 24 and 28 of the record of appeal which profiled the oral testimonies of PW1, PW2, PW3, PW4 and DW1. In response, the appellant humbly submitted that the prosecution had failed to prove its case to the required standard and, as such, the conviction and sentence that followed is bad and unsustainable in law. He adopted contents of his memorandum of appeal and urged us to find the trial court had wrongly ignored his application for scientific examination of the sperms found in the victim's anus. He attacked the evidence of the medical doctor (PW4) which he said was insufficient to link him with the offence charged. He also faulted the first appellate court for failure to analyse the evidence on record and make its own independent findings and insisted that, the evidence adduced at the trial court was insufficient to arrive at a conviction. This being the second appellate court, we will be cautious in re­ evaluating the evidence on the concurrent findings of fact made by the courts below as we are precluded from interfering with the findings of facts that are for the trial court to make, particularly in areas such as the reliability of witnesses and the weight to be given to the various strands of evidence. We can only look at the relevant evidence and make own findings where it is clearly shown that there has been a misapprehension of the evidence, a miscarriage of justice or violation of some principle of law or procedure (See: Amiratial Damodar's Maltase & Another t/a Zanzibar Silk Stores v. A.H Jariwalla t/a Zanzibar Hotel [1980] T.L.R 31; Peter v. Sunday Post [1958] EA 424; and; Salum Mhando v Republic [1993] T.L.R 170). Having considered the above stated legal stance, we shall now, for convenience purpose, address the grounds of appeal in the same manner adopted by the learned Senior State Attorney, in a reversing order. In the fourth ground of appeal, the appellant complained that, the first appellate court misdirected itself in dismissing the appeal without considering that, the trial magistrate had sentenced him without entering conviction. We understand that this argument stems from sections 235 (1) and 312 (2) of the CPA which we interpreted in Haji Makame Shaali V. Republic, Criminal Appeal No. 308 of 2017 (unreported) to mean that, trial magistrates must first convict an accused who is found guilty of an offence before proceeding to sentence him. In the instant matter, we are satisfied that the trial magistrate properly convicted the appellant before passing a sentence. As such, we find no substance in the fourth ground of appeal which fails. On the third ground of appeal, the appellant faulted the first appellate court for failure to find that the prosecution had failed to lead evidence to connect him with the sperms found in the victim's anus. It was insisted that, the medical doctor did not validate the allegation that the sperm found in the anus belonged to him. This ground is similar to the fourth ground in the petition of appeal before the High Court which was adequately addressed by the first appellate court. In its judgment, the first appellate court found that the trial magistrate was correct in his analysis of the evidence of PW4. The learned Senior State Attorney contended that, so long as PW1 and PW4 sufficiently proved commission of the offence by the appellant, scientific analysis of the sperm was irrelevant in the circumstances of the case. The pertinent question in this respect is whether the evidence on record was sufficient to ground conviction against the appellant. That in our view, is the guiding question on which our findings on this pivotal issue depends. From the outset, we should restate our stance in Prosper Mnjoera Kisa v. Republic, Criminal Appeal No. 73 of 2003 (unreported) wherein we accentuated that, lack of medical evidence does not necessarily mean that a sexual offence is not established in a case if all the other evidence point to the fact that it was committed. When a similar issue cropped up in Mwanahamis Abdallah @ Hamisi v. Republic [1983] T.L.R 265, persuasively, the High Court reasoned that, presence of semen in the anus suggested a homosexual act, meaning, one male person had a carnal knowledge of another male person (victim) against the order of nature. In this case, there was no forensic examination of the sperms found in the victim's anus to establish DNA of the culprit. That notwithstanding, the medical doctor (PW4) testified to have examined the victim and found sperms in the anus which suggested anal penetration. He also found bruises and blood stains around the anus as a proof that, the little boy was penetrated by force. The evidence of PW4 was corroborated by PW2 who stated that, on physical inspection of the victim, he found blood oozing from the anus and the boy could hardly walk. When the victim was questioned on who had inflicted the injuries, he straightly led his parents to the appellant's room whose circumstances suggested to be the actual scene of event. It is trite law that, when specific time and place is mentioned in the charge sheet, the prosecution is obliged to prove the offence was committed on that specific date, time and place. In this case, PW 3 cleared doubts on who had occupied the appellant's room at the time the offence was committed. On examination in chief, he disclosed that, the appellant was present at the time in question. Apparently, the appellant was afforded a chance to cross examine this material witness but failed to do so. To cement it all, PW1 gave details on how the offence was committed. Despite his tender age, the witness consistently accounted for the chain of events from the point of meeting the appellant as he walked back from school, events in the appellant's room, his questioning by the parents at home to the point of leading PW2 to the scene of crime. He said the appellant deceived him with an offer for sweets and ended up sodomising him. That, in the room, the appellant had lubricated his anus with a soap and inserted his manhood an act that caused him severe pains. After the incident, the victim realised that he was no longer okay but the appellant cautioned him not to disclose the incident to anyone. In Selemani Makumba v Republic, [2006] T.L.R 379, we alluded that in rape cases and indeed, other sexual offences, including the unnatural act of this nature, true evidence of the offence has to come from the victim. Upon examining the evidence of PW1 and the corroborations by PW2, PW3 and PW4 as shown above, we find the offence charged was sufficiently proved against the appellant and therefore, we dismiss the third ground of appeal. The second ground of appeal relates to age of the victim. The appellant contended that, PW2 and PW4 failed to prove the actual age of the victim. He contended that the prosecution was required to tender a birth certificate to prove the age. This issue is not a new territory and therefore should not hold us. In Haruna Mtasiwa v Republic, Criminal Appeal No. 206 of 2018 (2020) TZCA 230 (15 May, 2020), we referred to our earlier decisions in Bashiri John v. Republic, Criminal Appeal No. 486 of 2016 [2019] TZCA 89 (16 May, 2019) and Isaya Renatus (supra) and concluded that, birth certificate is not the only evidence to prove age of the victim. We reasoned that, such proof can also be made by the parents, relative of the victim, medical practitioner or if available, by production of the birth certificate. In the present case, age of the victim was proved by PW1, PW2 and PW4. While on examination in chief, PW1 informed the trial court that he was five years old. PW2 who testified three months after the incident, said the victim was born in the year 2014 and therefore, was five years old. PW4 testified that, before the victim was medically examined, he established that he was about five or six years old. In all these testimonies, the appellant omitted to cross examine the prosecution witnesses on the age aspect. We therefore dismiss the second ground of appeal for being an afterthought and incapable of outweighing the strong prosecution evidence. This takes us to the first ground of appeal in which the appellant submitted that, the prosecution failed to establish its case beyond reasonable doubts. Section 154 (1) and (2) of the Penal Code provides for unnatural offences as follows: "154 (1) Any person who a) Has carnal knowledge of any person against the order of nature, or b) Has carnal knowledge of an animal\ or c) Permits a male person to have carnal knowledge of him or her against the order of nature, Commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years. (2) Where the offence under subsection (1) is committed to a child under the age of eighteen years the offender shall be sentenced to life imprisonment" In its judgment found at pages 56 to 61 of the record, the first appellate court was upbeat that even if the evidence of the other witnesses could have been hearsay, PW1 alone was credible enough to sustain a conviction. It went ahead to reason that the evidence of PW2 and PW4 were equally credible to found a conviction. This is to say, upon scrutiny of the evidence on record, the first appellate court was satisfied that the prosecution had proved its case beyond reasonable doubts. We find no reason to doubt this conclusion. We have thoroughly examined the record and analysed the prosecution evidence as to how the offence was committed. The same occurred in the appellant's bedroom. The appellant's roommate (PW3) testified that on the material date and time, he had gone to work but the appellant was at home. On return in the evening, neighbours informed him that the appellant was arrested in connection with the offence charged. PW2 was led by the victim to the same room occupied by the appellant and found situations tallying with the manner earlier on described by PW1. PW1 did not fumble on the chronology of events surrounding the unlawful acts done by the appellant against him. His testimony was corroborated by the evidence of PW2, PW3 and PW4. We further consider that on cross examination by the public prosecutor, the appellant recognised PW3 as his roommate although referred to him as Ngusa Richard and not Jackson Richard as reflected in the proceedings. We also consider that, on further cross examination, the appellant acknowledged that PW2 was well known to him prior to the incident but no grudges existed between them or with any prosecution witnesses. We are therefore convinced that his recognition by PW1 was positive. The appellant did not make any submissions on the sentence against him although in the first ground of appeal, he contended that, it was wrong to sentence him in absence of proof beyond reasonable doubts. Section 154 (2) of the Penal Code provides that where the offence under subsection (1) of section 154 is committed to a child under the age of 18 years the offender shall be sentenced to life imprisonment. Since the victim was five years old and the appellant was sentenced to life imprisonment, that was the appropriate sentence prescribed by the law. For the reasons stated, we find no merits in this appeal and dismiss it in its entirety. DATED at SHINYANGA this 26th day of October, 2024. I. H. JUMA CHIEF JUSTICE S. M. RUMANYIKA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 28th day of October, 2024 in the presence of the Appellant in person - unrepresented and Ms. Nyamnyaga Raphael Magoti, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.