IBRAHIMU RAMADHANI GANGWE

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 9856 OF 2024 (Arising from Criminal Case No. 48 o f2023 in the District Court of Chemba) IBRAHIMU RAMADHANI@GANGWE............................ APPELLANT VERSUS THE REPUBLIC......................................................... RESPONDENT JUDGMENT J d & 2$hJuly, 2024. MUSOKWA, J. The appellant herein was charged and convicted by the District Court of Chemba (trial court) for committing unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code Cap. 16, R.E. 2022 (Penal Code) and sentenced to serve life imprisonment. It was alleged in the charge that the incident occurred on 11th September, 2023 at Kidoka village within Chemba District in Dodoma Region. The facts provide that on the material date, the appellant had carnal knowledge of a female child aged 7 (seven) years against the order of nature. The name of the victim is concealed for the purpose of protecting her identity. Being aggrieved by both the conviction and the corresponding sentence, the appellant lodged this appeal relying on the grounds reproduced herein under verbatim: - 1. That, the learned magistrate grossly erred in law and fact convicting the Appellant on relying a testimonial o f a child o f tender age without justifying itself as to whether aforesaid child is capable o f promising to tell the truth to the Court and not tell lies as it was then stated in the case o f Geofrey Wilson V.R.C Appeal No. 168 o f 2018 Published on www Tanzlii.org website " as [ 2019] TZCA.108, where the Court o f Appeal held at "... to our understanding the provision as amended provides for two conditions, one, it allows the child o f tender age to give evidence, such a child is mandatorily required to promise to tell the truth to the Court and not tell lies". 2. That, the learned magistrate erred both in law and fact in holding that the medical report (hereinafter referred to as "PF.3") tendered before the trial Court as an exhibit and the same signed by medical expert as to whether such witness was purely medical or surgical expert by professional as required by law. 2 3. That, the learned magistrate erred both in iaw and fact in holding evidence adduced by PW1, that having discrepancy as she testified before the trial Court that the appellant on the material date and time started swearing her (PW1) whilst the offence faced the appellant it reads as follows " Unnatural offence C/S 154 (1) (a) and (2) o f the Penal Code [Cap. 16. R.E 2022]" as it seemed to be two distinct offences appears on the same charge sheet. 4. That\ the learned magistrate erred both in law and fact in admitting that, the sperms found to the victim's secret parts were emanated from the appellant whereby the appellant at trial was not taken medical test with a context o f proving as whether the appellant is capable o f having carnal knowledge in respect offence charged thereto. During the hearing of the appeal, the appellant fended for himself whereas the respondent had the service of Ms. Margareth Tlegray, learned state attorney. The appellant prayed to reserve his right to rejoin after the respondent's submission in reply. Ms. Tlegray, opposing the appeal, submitted that the appellant is charged with the offence, of unnatural offence, contrary to section 154 (1) (a) and (2) of the Penal Code. The learned state attorney prayed and was allowed 3 by this court to address the 1st and 3rd grounds of appeal collectively; while the 2nd and 4th grounds were argued separately. In essence, the 1st and 3rd grounds of appeal challenge the testimony of PW1, being the victim and a child of tender age. Submitting on these grounds, Ms. Tlegray referred to page 6 of the typed trial court proceedings whereby PW1 promised before the trial court to tell the truth. In this regard, the requirements of the law were complied with as provided for under section 127 (2) of the Evidence Act, Cap. 6 R.E. 2022 (the Evidence Act). Ms. Tlegray proceeded to state that PW1 testified in relation to only one offence, to wit, unnatural offence. This is the charged offence as per the substituted charge sheet. In contention, the learned state attorney asserted that the appellant's allegation that he had been charged of two different offences is unfounded. Expounding on this point, Ms. Tlegray averred that it is indicated at page 26 of the typed trial court proceedings, that the prosecution prayed to substitute the charge and the prayer was granted. Thereafter, the appellant was given the opportunity to address the court on whether or not he wished the prosecution witnesses to be re-called. In response thereof, the appellant was not willing to recall the prosecution witnesses. Therefore, it was the submission of the respondent that the 1st and 3rd grounds of appeal lack merit. With regard to the 2nd ground of appeal, Ms. Tlegray referred to the first paragraph of page 15 of the typed trial court proceedings. Prosecution witness PW4, being under oath, testified that he is a clinical officer, and further stated his registration number. Thereafter, PW4 produced before the trial court a Police Form No. 3 (PF3), which is the medical report he prepared upon conducting a medical examination of the victim. To that effect, Ms. Tlegray argued that this ground of appeal is equally unmeritorious. On the 4th ground of appeal, the learned state attorney referred to section 127 (6) of the Evidence Act. The provision stipulates that the testimony of the victim is the best evidence in sexual offences. The respondent's counsel added further that, the court must ascertain the credibility of the witness before recording the testimony of the said witness. In the appeal before this court, the victim identified the appellant as the perpetrator who committed the unlawful act against her. The testimony of the victim is recorded at page 7 of the typed trial court proceedings. The respondent's counsel submitted that, it is evident that the trial court assessed the credibility of the victim and 5 founding her credible and proceeded to record her testimony. As the result, the conviction and sentence were properly entered against the appellant. Ms. Tlegray asserted further that the testimony of PW1, the victim, sufficed to prove that the appellant herein committed the offence he was charged with. In support of her submission, the learned state attorney cited the case of Selemani Makumba vs R, Cr. Appeal No. 94 of 1994. This case establishes the principle that the best evidence in sexual offences is the testimony of the victim. Accordingly, Ms. Tlegray prayed that the decision of the trial court should be upheld and the appellant continue to serve his sentence. On his part, the appellant was brief in his rejoinder submission. The appellant challenged the medical examination report contending that proof was required to link him with the semen, if any, that was allegedly found from the victim. In the absence of such proof, the medical examination report should be disregarded. The appellant added further that he is HIV/AIDS positive. In the circumstances, he challenged the findings of the medical report which recorded that the victim was found to be HIV/AIDS negative. According to him, this is a proof of the fact that he is not the perpetrator. 6 Having carefully gone through the submissions of the parties, the issue for determination is whether the prosecution proved their case beyond reasonable doubt. The burden of proof in criminal cases, lies on the prosecution and the standard of such proof is beyond reasonable doubt. Section 3 (2) (a) and 110 (1) and (2) of the Evidence Act, provides that: 3(2) A fact is said to be proved when- (a) in criminal m attersexcept where any statute or other iaw provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists; llO .-(l) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence o f facts which he asserts must prove that those fact exist (2) When a person is bound to prove the existence o f any fact, it is said that the burden o f proof lies on that person. Based on the above legal position, the prosecution has the duty to prove the charge beyond reasonable doubt. In the instant appeal, the appellant was charged and convicted of the offence of unnatural offence contrary to section 154 (1) of the Penal Code. The section provides that: - 154. -(1) Any person who- (a) has carnal knowledge o f any person against the order o f nature; or (b) has carnal knowledge o f an animal; or i (c) permits a male person to have carnal knowledge o f him or her against the order o f 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." [emphasis added] In proving the offence of unnatural offence, the prosecution essentially had to prove that there was penetration to the victim against the order of nature. Further, that it was the appellant who committed the unlawful act. The 1st and 3rd grounds of appeal challenge the testimony of the victim, PW1, who is a child of tender age. The respondent's counsel submitted that PW1 promised before the trial court to tell the truth. Thus, the requirements of the law as provided under section 127 (2) of the Evidence Act were duly complied. The testimony of PW1 is recorded at pages 6 to 7 of the trial court proceedings and is hereby reproduced for ease of reference: - Court: The witness is a child o f 7 and is asked if she promises to tell the truth ChiId-I promise to tell nothing but the truth. Court-The testimony o f a child is taken under oath. The law under the provision of section 127 (2) of the Evidence Act provides that: - 8 "A child o f tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies." [emphasis added] Moreover, the Court of Appeal of Tanzania (CAT) in the case of Godfrey Wilson vs Republic, Criminal Appeal No. 168 of 2018 (unreported) at pages 13 and 14, stated as follows: - "The question however, would be on how to reach at that stage. We think the trial magistrate or judge can ask the witness o f tender age such simplified questions, which may not be exhaustive depending on the circumstances o f the case as follows; 1. The age o f the child. 2. The religion which the child professes and whether he/she understands the nature o f oath. 3. Whether or not the child promises to tell the truth and not lies, Therefore, upon making the promise such promise must be recorded before the evidence is taken." [emphasis added] Also, in the case of Yusuph Molo vs. Republic, Criminal Appeal No. 343 of 2017 (unreported) at page 12 it was held that: - "It is mandatory that such a promise must be reflected in the record of the trial court. I f such a promise is not reflected in the record, then it is a big blow in the prosecution's case... if there was no such undertaking, 9 obviously the provisions o f section 127(2) o f the Evidence Act (as amended) were ftouted", [emphasis added] According to the above cited authorities, it is evident that a child of tender age must not only promise to tell the truth before giving evidence, but such promise must be recorded in the proceedings. In the instant case, it is on record that at the trial, PW1 before giving her testimony, promised the court to tell the truth and such promise is recorded in the proceedings. In view of the above, I am of the settled opinion that the evidence of the victim, PW1, was recorded by the trial court in compliance with the requirements of the law. Notably, PW2, was also a child of tender age whose testimony is recorded at pages 11 to 12 of the typed trial court proceedings. PW2 is the young sister of the victim, and she was present at the scene of the crime. Similarly, the court properly recorded the testimony of this witness, as per the requirements of the law. Certainly, PW1 and PW2 despite their tender age, were able to testify that the appellant committed the offence he was charged with. These witnesses gave a coherent narration of the incident. In the premises, the evidence of the victim PW1; and PW2, were credible and sufficient to ground a conviction against the appellant. 10 Under the 3rd ground of appeal, the appellant further alleges that there is a variation between the evidence of PW1, and the charged offence. In addressing this ground of appeal, the learned state attorney submitted that, PW1 gave testimony on only one offence, to wit, unnatural offence. At this point, I will address the procedures that was adopted at the trial court in substituting the charge. As per the records, the initial charge sheet contained two counts; the 1st count was unnatural offence, contrary to section 154(l)(a) and (2) of the Penal Code. The second count was rape, contrary to section 130 (1) and (2)(e) and 131 (1) of the Penal Code. However, the prosecution, on the date scheduled for judgment, prayed to substitute the charge under section 234 (1) of the CPA, in order to drop the second count and to remain with the first count only. At the hearing of this appeal, parties were directed to address this court on whether or not the substitution of the charge was done properly. In addressing this issue, Ms. Tlegray briefly submitted that the procedure that was adopted during the trial was flawless. The respondent's counsel asserted that once the prayer of the prosecution had been granted, the appellant was given the opportunity to address the court on whether or not li he wished the prosecution witnesses to be re-called. In response, he declined. In addition, the substitution of the charge merely related to removal of the second count. However, the appellant, did not submit anything on this issue. In determining whether the proper procedure was followed at the trial court in substituting the charge, I will refer to section 234 (1) and (2) of the Criminal Procedures Act, Cap. 20 R.E 2022 (CPA) which provides that: - 234 (1) "Where at any stage o f a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration o f the charge either by way o f amendment o f the charge or by substitution or addition o f a new charge as the court thinks necessary to meet the circumstances o f the case unless, having regard to the merits o f the case, the required amendments cannot be made without injustice; and all amendments made under the provisions o f this subsection shall be made upon such terms the court shall seem just (2) Subject to subsection (1), where a charge is altered under that subsection (a) The court shall thereupon call upon the accused person to plead to altered charge; (b) The accused may demand that the witnesses or any o f them be recalled and give their evidence afresh or be further cross-examined by accused or his advocate and, in such last-mentioned event, the prosecution shall have the right to re-examine any such witness on matters arising out o f such further cross examination, [emphasis added] 12 It is on record that the substituted charge was read over to the appellant. Further, that the appellant was informed of his right to recall the witnesses. For ease of reference, the proceedings of the trial court at page 26 are reproduced hereinafter: - "DATE:13/3/2024 CORAM: P.F. MAYUMBA-SRM PP: SHIRIMA A/INS CC: R. MOCHO ACC: PRESENT PP: The trial is for judgement but we pray to substitute the charge sheet in terms o f section 234(1) and the purpose is to remain with only first count COURT: Prayer granted the substituted charge is read over and explained to the accused person who pleaded thereto; ACC: It is not true COURT: PNGE SgdP.F. MAYUMBA-SRM 13/3/2024 COURT: The accused person is asked if he wish for the witness to be cross examination. ACC: Pray the court to proceed with the judgement, I am not in need to re-call the prosecution witness. S.234 (2) (b) o f CPA R.E 2022 C/W SgdP.F. MAYUMBA-SRM 13/3/2024 In the case of Tluway Akonay vs Republic, [1987] T.L.R 92, the CAT stated that: 13 "It is mandatory for a plea to a new or altered charge to be taken from an accused person, as otherwise the trial becomes a nullity In the instant appeal, the records reflect that after substitution of the charge, the appellant's plea was taken and the same was recorded by the trial court. Again, the purpose of substitution of the charge was to remain with first count only. According to the above trial court proceedings, I am of the settled view that the provisions of section 234(1) and (2) of the CPA were complied with. In the circumstances, the 1st and 3rd grounds of appeal also fail. I will jointly address the 2nd and 4th grounds of appeal. The appellant challenges the testimony of PW4 and Exhibit PI (PF3) which was tendered by the said witness. The appellant further challenges the testimony of PW4, alleging that the same was not properly linked to him, as the offender of the charged offence. According to the records, PW4 who is a clinical officer examined the victim and testified before the trial court on the findings of the medical examination. The condition of the victim's private parts revealed signs of penetration against the order of nature. The provision of section 127 (6) of the Evidence Act stipulates that: - 14 "(6) Notwithstanding the preceding provisions o f this section, where in criminal proceedings involving sexual offence the only independent evidence is that o f a child o f tender years or o f a victim o f the sexual offencet, the court shall receive the evidence, and may, after assessing the credibility o f the evidence o f the child o f tender years of as the case may be the victim of sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child of tender years or the victim of the sexual offence is telling nothing but the truth . [emphasis added] In the case of Mohamed Haji Alii v. DPP, Criminal Appeal No. 225 of 2018, it was held that in sexual offences, the testimony of the victim is the best evidence and may sustain the conviction thereof. Further in the said case, specifically at page 13, the CAT cited the case of Godi Kisangela vs Republic, Criminal Appeal No. 10 of 2008 whereby it was partially held that: "It is now settled law that the proof o f rape comes from the prosecutrix herself. Other witnesses if they never actually witnessed the incident, such as doctors, may give corroborative evidence, "[emphasis added] From the above legal authorities, it is apparent that the testimony of the victim sufficed to sustain a conviction even in the absence of other witnesses. In addition, the testimony of a clinical officer (PW4) is merely corroborative 15 evidence. Therefore, a conviction on sexual offences may be sustained even in the absence of corroboration such as the testimony of a clinical officer. In view of the foregoing, this court finds that even in the absence of the testimony of PW4 and exhibit PI the testimony of PW1, the victim, was correctly considered by the trial court in sustaining the conviction. Accordingly, the 2nd and 4th grounds of appeal are unfounded. For the foregoing reasons, I hereby dismiss the appeal in its entirety and sustain the conviction and sentence meted out against the appellant by the trial court. It is so ordered. Right of appeal explained. DATED at DODOMA this 26th day of July, 2024. 16 Judgment delivered in the presence of the appellant; and in the presence of Ms. Margareth Tlegray, learned state attorney for the respondent. 17