KASMIR ERNEST SWAI V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CRIMINAL APPEAL NO. 75 OF 2023 (Originating from Criminal Case No. 93 of 2023 of Rombo District Court) KASMIRI ERNEST SWAI ……………………………….... APPELLANT VERSUS REPUBLIC ………………………………………….......... RESPONDENT JUDGMENT 19/03/2024 & 25/03/2024 SIMFUKWE, J. The appellant Kasmiri Ernest Swai was charged before the District Court of Rombo (trial court) with the offence of unnatural offence contrary to section 154(1)(a) (2) of the Penal Code, Cap 16 R.E 2022. It was alleged before the trial court that on 22nd day of May 2023 at Mbomai Juu village within Rombo District in Kilimanjaro Region, the appellant had carnal knowledge of his son aged 13 years against the order of nature. The brief facts of the case are to the effect that the victim is the son of the appellant. The victim stated before the trial court that he was staying 1 with his father when he was sodomized three times by his father. After being sodomized the victim didn’t go to school for seven days as he was afraid being seen by his fellow students as stool was coming out freely from his buttocks. Thus, he used to hide at the river until when he was told that exams were about to start. When he reached at school his teacher wanted to punish him. The victim refused and told him that there was wound in his buttocks. While inspecting him, the teacher saw some fluid from the buttocks. He asked the victim what had happened to him, the victim replied that he was sodomized by his father. Then, the victim was taken to the police station by PW2 Glory Paul Makuru (Social Welfare Officer) and PW3 one Nasra Michael Mushi a Paralegal. PW5 Morine Clement a Clinical Officer who examined the victim confirmed that the victim was sodomized. In his defence before the trial court the appellant stated inter alia that on 22/05/2023 in the afternoon he was informed that his son was not at school as he was found at the river. He made follow up at school and found two children tied their hands and legs. He asked what had they done? He was told that they were found sodomizing each other. On 24/05/2023 when he went to make further follow up of his son, he found his son with the headteacher. Police officers went there and arrested the 2 appellant. DW2 Victoria Ambrose Mrema the niece of the appellant testified that she interrogated children who were alleged to have been caught with the son of the appellant if they were found sodomizing each other, they agreed. In his findings, the learned trial Magistrate found evidence of all prosecution witnesses probable, hence, found the prosecution to have proved its case beyond reasonable doubts. He convicted and sentenced the appellant to serve 30 years imprisonment. The appellant was aggrieved with the conviction and sentence. He preferred this appeal on the following grounds: 1. That, the learned Resident Magistrate erred in law and fact in convicting and sentencing the appellant whereas prosecution case was not proved beyond reasonable doubt. 2. That, the learned Resident Magistrate erred in law and fact for entering a conviction and sentence against the appellant basing on a defective charge. 3. That, the learned magistrate erred in law for he acted upon the evidence of the prosecution only in composing her (sic) judgment which is contrary to the law. Wherefore, the appellant prayed for the following orders: 3 a) That this appeal be allowed. b) The trial court’s conviction and sentence be quashed and set aside. c) Immediate release of the appellant from custody. d) Any other order this honourable court may deem just and equitable to grant. The appeal was ordered to be argued by way of written submissions. The appellant had the service of Mr. Constantine Felix Kimario learned counsel while the respondent was represented by Mr. Innocent E. Ng’assi learned State Attorney. In his submission in chief, on the outset, Mr. Constantine reminded this court of the settled principle in criminal justice that the prosecution is duty bound to prove their case beyond reasonable doubts. That, such duty never shifts to the accused. The learned counsel averred that in cases of this nature the settled proposition is always that the standard of proof by the prosecution is beyond any shadow of doubts. He referred the landmark case of Woolmington v. DPP [1935] AC 462 and Mohamed Haruna @ Mtupeni and Another v. Republic (Criminal Appeal 259 of 2007) [2010] TZCA 141 (4th June, 2010). On the 1st ground appeal Mr. Constantine submitted that the trial court strained into an error for convicting and sentencing the appellant while 4 the prosecution case was not proved beyond reasonable doubts as the prosecution evidence was full of doubts. He mentioned one of the doubts on PW1’s credibility as he could not remember the date when he was sodomized but he remembered the date when he started staying with PW3 Nasra. Also, the learned counsel doubted the reason given by the victim that they were four children at the river and that they went there so that they could abscond from school; while at page 8 of the proceedings he had stated that he absconded from school due to fear of being seen by his fellow students as the stool was coming out freely. Mr. Constantine was of the view that those pieces of evidence were conflicting and shake the credibility of PW1. Hence, the trial court ought to analyze the victim’s evidence with caution as it was held in the case of Shaban Daudi v. Republic, Criminal Appeal No. 28 of 2000, that: “Evidence of the victim of sexual offences should not be taken wholesome, believed and acted upon to convict the accused person without considering other evidence and the circumstances of the case.” Mr. Constantine submitted further that there was no eye witness to the incident of unnatural offence. That, the victim alleged that on the particular day he went back home and the following day he was at home. 5 At the same time the victim said that he started living with Nasra on the same date. Thus, he couldn’t be sodomized by the appellant on that date as stated by the prosecution. Mr. Constantine went on to state that PW2 and PW3 were called at the school of the victim on 22/05/2023. On the same date they accompanied the victim to the police station and then to Hospital. That, PW4 told the trial court that the appellant was arrested on 24/05/2023 and PW5 testified that he attended the victim on 24/05/2023. Regarding the defence of the appellant, the learned counsel averred that the statement by the appellant that the victim and his fellow pupils were caught sodomizing each other at the river raised doubts. That, the victim was not sodomized by the appellant but his fellow pupils. It was averred further that the victim did not report the matter at the earliest possible time based on the gravity of pain suffered if at all the victim was sodomized. To link up the story, Mr. Constantine said that the teacher who at first instant saw fluids coming from the victim’s buttocks could have been called to testify. Failure of which casts doubt on prosecution case and the trial court ought to draw an adverse inference as it was held in the case of Aziz Abdallah v, Republic [1991] TLR 71. 6 In support of the 2nd ground of appeal, Mr. Constantine submitted that the charge upon which the conviction and sentence against the appellant was founded was defective. He said that the charge does not indicate the time of commission of the offence. He made reference to section 132 and 135 (f) of the Criminal Procedure Act, Cap 20 R.E 2022 which explain that information on the charge sheet should include time, date and place. On the 3rd ground of appeal which concerns failure of the trial court to consider the defense evidence in composing judgment; the learned counsel for the appellant argued that it is one thing to summarize evidence and another thing to critically analyze the same. He stated that the trial court properly drew issues for determination but in resolving the issues, relied on prosecution evidence only contrary to the law. Mr. Constantine concluded that the above raised doubts are reasonable thus, worth an attention of this court. He prayed this court to find merit in the grounds of appeal and accordingly quash the conviction and set aside the sentence by the trial court. Mr. Innocent Ng’assi learned State Attorney on the outset, did not support the appeal. He argued the 1st and 2nd grounds of appeal collectively while the 3rd ground was argued separately. 7 He submitted that it is quite clear that the purpose of a charge is to inform the accused person of the offence that he is charged with. That the law indicates that a charge sheet is framed with two parts: Statement of the offence and particulars of the offence pursuant to section 135 (a) (i), (ii) and (iii) of the Criminal Procedure Act (supra). The learned State Attorney believed that the charge which was read over to the appellant was exhaustive and complied to section 135 of the CPA. In support of his reply, he cited the case of Magesa Chacha Nyakibali and Yohana Josia Manumbu v. Republic, Criminal Appeal No. 303 of 2013, CAT, at Arusha. Mr. Innocent replied further that the prosecution had the onus of proving two elements of unnatural offence. That is penetration of the male organ and that penetration was against the order of nature. He stated that it is general principle of law that best evidence in sexual offences comes from the victim him/herself as these offences are done in closed areas where it is hard to have eye witnesses. Hence, it is the victim who is in a good position to give evidence of what transpired. Mr. Innocent buttressed his argument with the case of Selemani Makumba v. Republic [2006] TLR 376. He contended that the prosecution proved the elements of unnatural offence beyond reasonable doubts as it was held in the case of 8 Nyamasheki Malima @ Mengi v. Republic, Criminal Appeal No. 177 of 2020 CAT, at page 9. Mr. Innocent referred to page 8 of the proceedings of the trial court where PW1 (victim) gave a clear narration of the tragedy. Whereas he explained further that apart from 22/05/2023, his father had done to him the same shameful act three times before he was reported. It was submitted further that evidence of PW1 was corroborated with the evidence of an expert PW5, who stated that the sphincters were loose showing that the victim was sodomized by his father. That, PW1’s evidence proved the 4 Ws. He named his father who is the appellant; he mentioned the date of 22/05/2023 when the offence was committed; he stated the place where the offence was committed, at home at Mbomai Juu village and he explained what his father did to him (had carnal knowledge of him against the order of nature. Mr. Innocent was convinced that PW1 was entitled to credence and his testimony to be believed unless there are good and sufficient reasons for not believing him as it was held in the case of Crospery Ntagalinda Koro v. Republic, Criminal Appeal No. 312 of 2015, CAT at Bukoba (unreported). Responding to the issue of variance between the charge sheet and evidence of PW1, Mr. Innocent submitted that from the records of the 9 proceedings, it was never disputed that on the fateful night the victim and the appellant were living together and they spent the night together till morning when they went on their separate ways as seen at page 8, 12 and 18 of the proceedings. On the 3rd ground of appeal which concerns failure to consider the defence of the appellant by the trial court; Mr. Innocent made reference to page 10 to 11 of the judgment of the trial court where the trial Magistrate made reference to what the appellant stated in his defence. The learned State Attorney finalized that this appeal be dismissed and conviction be upheld. He prayed this court to punish the appellant accordingly whereas under section 154 (2) of the Penal Code (supra) the appellant should have been sentenced to life imprisonment as the victim was below 18 years old. In his rejoinder on the issue of a defective charge, Mr. Constantine stated inter alia that the challenged points were not replied by the respondent. He reiterated his submission in chief. Regarding the case of Magesa Chacha Nyakibali (supra), Mr. Constantine rejoined that the principle is distinguishable in the sense that it was all about the elements constituting the offence of Armed Robbery which is not our case. Thus, inapplicable to our case. 10 Having considered submissions of both parties, the issue is whether the raised grounds of appeal have merit. For the sake of clarity, I will commence with the second and third grounds of appeal and ultimately resolve the last ground. The second ground of appeal faults the learned trial Magistrate for entering conviction and sentence based on a defective charge. The learned counsel for the appellant argued that the charge sheet doesn’t indicate at what time did the appellant commit the offence charged. He said that sections 132 and 135 (f) of the CPA explain the propriety of a charge. Mr. Innocent the learned State Attorney contended that the charge sheet in this case adhered to the prescribed format. Section 135 (f) of the CPA provides that: “135. The following provisions of this section shall apply to all charges and information and, notwithstanding any rule of law or practice, a charge or an information shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this section— (f) subject to any other provision of this section, it shall be sufficient to describe any place, time, thing, matter, act or omission of any 11 kind to which it is necessary to refer in any charge or information in ordinary language in such manner as to indicate with reasonable clarity the place, time, thing, matter, act or omission referred to;” Emphasis supplied Section 132 of the CPA provides that: “132. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” Emphasis added In the case of Yustus Aidan v. Republic, Criminal Appeal No. 454 of 2019, CAT, at Arusha, at page 12 to 13 it was held that: “We agree with Ms. Sekule’s submission that showing time in the charge sheet is not a legal requirement but, it terms of section 234 (3) of the CPA and as we said in John Stephano & Others v. Republic, Criminal Appeal No. 257 of 2021 (unreported), specifying time in a charge sheet can only be necessary where time is of the essence in proving the offence. As there 12 was no suggestion that time was of the essence in proving rape in the instant appeal, we find no merit in the complaint.” In the instant appeal, I fully subscribe to the quoted provisions of the law and the Court of Appeal decision in the case of Yustus Aidan v. Republic (supra). Likewise, in the case at hand, time was not of essence in proving unnatural offence. As correctly submitted by Mr. Innocent for the respondent Republic, in proving the offence of unnatural offence, only two things are required to be proved: penetration and that the carnal knowledge was against the order of nature. Whether the offence is committed during the day or at night, it doesn’t matter. The fact that PW1 was penetrated against the order of nature was supported by PW5 the clinical officer who attended the victim. Therefore, I dismiss the second ground of appeal for being devoid of merit. On the third ground, the appellant’s grievance is that in composing judgment, the trial court did not consider his defence. The learned State Attorney opposed this ground and quoted part of the judgment of the trial court at page 10 and 11, to show that the defence of the appellant was considered. Respectfully, I agree with the learned counsel for the appellant that failure to consider the defence of the accused person while composing judgment is fatal. See the cases of Yustus Aidan (supra) and 13 Farida Abdul Ismail v. R, Criminal Appeal No. 83 of 2017, CAT, (unreported) at page 25. However, in our case the record of the trial court is crystal clear that the defence of the appellant was considered thoroughly. Apart from what was quoted by the learned State Attorney, at the same pages 10 and 11, the learned trial Magistrate also stated that: “..... prosecution evidence shows that the said incident occurred on 22/5/2023 at night, no specific time stated thus even if accused person had wake up in the morning with PW1 on that date still that couldn’t stop him from committing the alleged act on that fateful date during the night as long as he was with the victim. Also, DW1 and DW2 averred that, they were told that PW1 was found sodomizing with his friends, despite this allegation being hearsay evidence but also those who alleged to find PW1 sodomizing with his friends were not brought before this court to prove that fact thus, it was just a mere speculation. Another thing which troubled my mind is, DW1 in his evidence said to have no grudges against the victim then why should PW1 plant such a case against him? 14 I am aware that accused’s defense ought not to be believed but to create a reasonable doubt towards prosecution case, in this case I find accused defense failed to cast any doubt toward prosecution case. ......” Having quoted the reasoning of the trial Magistrate in extenso, ipso facto, the third ground of appeal is unfounded and misleading as the trial Magistrate considered the defence of the appellant and gave reasons for discrediting it. Back to the first ground of appeal, whether the prosecution case was proved beyond reasonable doubts; Mr. Constantine mentioned some purported reasonable doubts in respect of PW1’s evidence. That, the victim could not remember the date of commission of the offence and that there were four children at the river and they went there so that they could abscond from school. That, there was no eye witness to the incident of unnatural offence and that PW1 remained silent to report such a serious incident due to fear of being cursed by the appellant. Moreover, it was contradictory that the offence was alleged to have been committed on 22/5/2023 while the victim said that he started staying with Nasra on the same date. The learned counsel was convinced that the above noted purported weaknesses create doubts on part of prosecution. 15 I have examined carefully evidence of the victim PW1, to be sincere, he was very coherent and truthful as he could have speculated the date but he said that: “... I don’t remember the date he did that act to me, my father did that act to me three times and he used to do that act at home in bed.” He stated further that: “My father did that act at night about 20:00hrs, I saw some fluid, I didn’t raise an alarm, we were living with my sister and father however later my father chased away my sister. I felt a lot of pain when my father did that to me, my father threatened me not to tell anyone about that incident and if I tell anyone he will “laani” curse me.” From the above quoted pieces of the testimony of the victim, it is obvious the victim could not report the incidence at the earliest possible time on the reason that he was threatened by his father. Moreover, the victim stated that after the incident he couldn’t go to school for seven days because he was afraid of being seen by his fellow students as the stool was coming out freely from his buttocks. Thus, he went to hide at the river. He went to school after being informed that examinations were about to start. When he went to school his teacher wanted to punish him 16 that’s when he disclosed the ordeal to his teacher. In the case of Wilfred Andisai Mmari v. Republic, Criminal appeal No. 164 of 2020, Court of Appeal of Tanzania at Moshi, (27 September 2023) at page 12 – 13 the Court subscribed to observations made by the Supreme Court of Philippines in the People of Philippines v. SP01 Arnufo A. Aure and SPO1 Marlion H. Fero, G.R. No. 180451, October 17, 2008 in which it was held that: “Delay in reporting an incident of rape due to death threats and shame does not affect the credibility of the complainant nor undermine her charge of rape. The silence of a rape victim or her failure to disclose her misfortune to the authorities without toss of material time does not prove that her charge is baseless and fabricated. It is a fact that the victim would rather privately bear the ignominy and pain of such an experience than reveal her shame to the world or risk the rapist’s making good of his threat to hurt or kill her.” [At page 18] We hold alike in this appeal that contrary to the appellant, the delay and more so of just three days sufficiently explained by PW1 had nothing to do with his credibility.” 17 The learned counsel for the appellant also questioned the fact that the teacher of the victim was not called to testify. I am of considered view that evidence of PW2 (social welfare officer) and PW3 (a paralegal) sufficed to corroborate the story of the victim. The appellant did not state in his defence whether PW2 and PW3 had any interest to serve against him. In the circumstances, I find the prosecution case was proved beyond reasonable doubts. In the upshot, I find this appeal with no merit. I therefore dismiss it in its entirety. Conviction and sentence meted by the trial court against the appellant, confirmed. Dated and delivered at Moshi this 25th day of March 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 25/03/2024 18