ALLY HAMIS MUHAMED VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA CRIMINAL APPEAL No. 4 OF 2023 (Originating from criminal case No. 31 of2023 at the District Court ofArusha) ALLY HAMIS MUHAMED................................................. APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT JUDGMENT 30h May & 27th June, 2024 KAIN DA, J.: The appellant herein was charged and convicted before the district court of Arusha at Arusha for unnatural offence Contrary to Section 154 (l)(a) and (2) of the Penal Code, (Cap 16 R:E 2022). Upon conviction, he was sentenced to serve life imprisonment. Aggrieved by the said decision, the appellant has appealed to this court. 1 | Page At the trial court, it was the prosecution case that, on different dates of the months of the year 2022 and 2023 at Osunyai area within the district and region of Arusha, the appellant did have carnal knowledge to a boy of seven years against the order of nature. To conceal his identity, I shall henceforth refer to him as 'the victim7. The appellant pleaded not guilty to the charge. At the trial, the prosecution lined five witnesses while on defense, the appellant fended himself. From a total of five witnesses, the prosecution account was as follows: It is not in dispute that the appellant is biological father to the victim. The appellant and victim's mother (PW1) was a married couple with four children, separated sometimes back. Following the separation, the appellant took two children, the victim and his brother started living with them. According to PW1, the appellants' life with the children did not impress her as the children used to complain to her on the challenges that they were facing including missing food. Based on that, PW1 made efforts and in September, 2022, she succeeded to take the children from the appellant. In January,2023 the victims' brother saw feces on the victims' pants. PW1 and PW3 Mariam Ally who is victims' sister, inquired from the victim about the feces. His account was that when he used to reside with the appellant the later used to come 2 | Page at night and take him to his bedroom and sodomized him. The victim was cautioned to tell no one. The appellant was thereafter arrested. The victim was subjected to medical examination. It was an opinion of PW4, a physician who attended the victim that the later was seen with signs of anal penetration by blunt object. An examination report exhibit Pl was admitted to that effect. In his defense, the appellant denied the prosecution version. He claimed that the case was fabricated against him by PW1 and PW3 based on personal hatred. The trial court was convinced by the prosecution witnesses' version. Accordingly, the appellants' defense was rejected and the appellant was convicted handed a minimum sentence of life imprisonment. As stated above, the appellant was dissatisfied and preferred this appeal with two sets of memoranda. The first set was filed on 2nd January,2024 which comprised of six grounds of appeal and the second was filed on 3rd May,2024 with four additional grounds of appeal. Generally, the main complain may be summarized as follows; one that, the charge was defective in respect of the place where the alleged offence occurred; two that, the 3 | Page trial court based its finding on evidences tainted with contradictions, inconsistencies and discrepancies; three that, the trial court failed to find that the incident was not reported as soon as practicable; four that, material witnesses were not called to testify without sufficient reason and five that, his defense case was not considered at all. At the hearing of the appeal, the appellant was in person unrepresented while the respondent/Republic was represented by Ms. Amina Kiango, learned State Attorney. When asked to amplify on his grounds of appeal, the appellant argued by way of reading some notes to me. In relation to defectiveness of the charge, the appellant submitted that the allegation in the charge sheet shows that sodomy took place at an area known as Osunyai. However, PW1 mentioned another place by the name Inter - kwa Mrombo. On his part, the victim PW2 mentioned a place known as Cheka- Ung'atwe. The appellant submitted further that in the circumstances, the prosecution with leave of the trial court should have amended the charge as provided under the provisions of Section 234 (1) of the Criminal Procedure Act. To bolster his position, he cited the case of Godfrey Simon & Another v. The Republic, Criminal Appeal No. 296 of 2018. 4| Page Next is a complain relating to contradictions, inconsistencies and discrepancies. The appellant argued that the trial court erred not to find the victims' evidence unreliable and incredible because he testified that he has been residing with his father and his brother. He submitted that, being a seven years old boy capable of speaking the truth, why he did not inform his brother that he was being sodomized, failure to inform his brother raises doubt as to victims' reliability, he also said that his dirty boxer was found by his brother having feces and his brother was the first to discover that dirty boxer, but the brother did not tell as to when the victim was taken back to the living room after sodomy. Further, PW3 stated that the condition of the victim might be a result of his behaviour of roaming around during night. In such circumstances, an immediate question is whether the alleged victim was unnaturally offended, and if so, whether it is the appellant who is responsible and no one else. The applicant invited this court to find the prosecution evidence not credible and cited the Court of Appeal case of Ally Shaban @ Nzige vs. The Republic, Criminal Appeal No. 12 of 2021. 5 | Page On complain that material witnesses were not called to testify, the appellant questioned as to why the victim's brother one Alsan and PW3 are the ones who reported the matter at Police, however he wonders why the police who investigated the matter together with his brother Alsan did not testify in court to answer the questions he posed. He was of the view that failure to bring the two has created doubts as to reliability of the evidence on record. The appellant invited this court to draw adverse inference on the prosecution case citing cases of Yohana Chibwingu v. The Republic, Criminal Appeal No. 117 of 2025 and Raphael Mhando vs. The Republic, Criminal Appeal No. 154 of 2017. Another complain is failure by the victim to disclose the incident instantly especially after he met his mother. There is no reason stated as to why the victim failed to narrate the whole story to his mother PW1. The appellant was of the view that the said failure reduced the victims' credibility. He supported his stand by citing the case of Elisha Edward v. The Republic Criminal Appeal No. 33 Of 2018. 6 | Page He also submitted in support of the contention that, there was no consideration of the appellant's defense by the trial court. The appellant submitted that, the trial magistrate put the onus to prove his innocence on him and not the prosecution to prove their case, in support of his position he cited the case of Farida Abdul Ismail vs The Republic, criminal appeal No. 83 of 2017. He concluded and prayed for this court to find all the grounds of appeal meritorious and allow the same. In reply submissions, the learned State Attorney did not support the appeal. As to contention that the victim's credibility was not assessed as per section 127(6) of the Evidence Act, she stated that, in cases where the only evidence on record is that of a victim who is of the tender age, and if the court finds the child is telling nothing but the truth, it is the trial court which is in the position to assess the credibility, in support of the same she cited the famous case of Selemani Makumba vs Republic. She further stated that, at pages 7 to 8 of the typed proceedings of the trial court, the Magistrate assessed the credibility of the victim. In regard to the assertion by the appellant that the charge sheet was defective, she submitted that Section 135 of the Criminal Procedure Act provides on how the charge sheet should look like. The fact that PW1 stated 7 | Page that the incident occurred at Inter-Mbauda but PW2 stated that the incident happened at Cheka ung'atwe while the charge sheet shows that the incident occurred at Osunyai, she submitted that, the appellant has not shown on how the variance in regard to place where incident took place has prejudiced him. She prayed for this court to find the argument as an afterthought since he didn't cross examine on the same when at the trial court. In support of her position, the learned State Attorney cited the case of Zuberi Mohamed Mkapa vs Republic, Criminal Appeal No. 563 of 2020 where there was variance regarding the name of the victim in the charge sheet and in the evidence. When probed on the position held in the case of Godfrey Simon and Another vs Republic (supra) cited by the appellant, she left it to the court to decide. With regard to appellant's allegation that the prosecution evidence was tainted with contradictions, inconsistencies and discrepancies. She submitted that, there were no contradictions, inconsistencies and discrepancies, she further submitted that those mentioned by the appellant are minor and did not go to the root of the case. 8 | Page With regard to allegation of delay to report the matter to police, she stated that there was no delay to report the matter to Police as the same was timely reported. With a complaint that the appellant was not supplied with complainant's statement as per Section 9 (3) of the Criminal Procedure Act, it was submitted in reply that it is true that the appellant was not supplied with the complainants' statement but he did not expound as to how that affected him. She prayed for the court to treat it as an afterthought. The learned State Attorney substantiated his position by citing the case of Elibariki Naftari Mchomvu v. Republic, Criminal Appeal No.332 of 2019. Regarding the complain that the appellant's defense was not considered, she referred the court at page 9 of the judgment where it is shown clearly that the trial Magistrate considered the appellant's defense hence he was convicted basing on strong prosecution case and not on the weakness of the defense. She finalized her submissions by urging this court to find the appeal without merit. Following the closure of both parties' submissions, the issue for determination before this court is whether this appeal is meritorious. 9 | Page Commencing with the complaint relating to the variance of the place of occurrence of the offence in the charge sheet and the prosecution account, the learned State Attorney submitted that the omission should be ignored because the appellant did not show how the variance in regard to place where incident took place has prejudiced him. She prayed for this court to find the argument as an afterthought. With respect, I find this argument wanting. In this case the prosecution account in regard to the place where the offence occurred did not support the charge. I say so because the charge sheet shows that the offence was committed at Osunyai area while PW1 stated that the offence was committed at a place known as Inter-mbauda. On his part, the victim, PW2 testified that it occurred at Cheka-ung'atwe area. In the case of Godfrey Simon & Another v. Republic (supra) which cited with approval the case of Bainth & Another v. Republic, Criminal Appeal No. 339 of 2013, where the court was faced with same situation, it was held: v ... where there is a variation in the place where the alleged armed robbery took place, if an amendment is not effected the charge will remain unproved and the accused shall be entitled to an acquittal as a matter of right. Short of that a failure ofjustice will occur..." 10 | P a g e In our case at hand the omission to amend the charge rendered the prosecution case not proved beyond reasonable doubt. In the circumstances, I think, it is unnecessary to deal with the remaining grounds of complain. Consequently, I allow the appeal, quash the conviction and set aside the sentence of life imprisonment imposed to the appellant. I accordingly, order that the appellant be set at liberty forthwith unless he is held for some other lawful cause. Order accordingly. Dated at Arusha this 1st day of July,2024. S. J. KAIN DA - JUDGE 11 | P a g e Judgment delivered in Chambers this 4th day of July,2024 in the presence of the appellant in person and Ms. Witness Mhosole, learned State Attorney for the respondent / Republic. S. J. KAINDA JUDGE Court: Right of appeal fully explained. 12 | P a g e