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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 15642 OF 2024 (Originating from Criminal Case No. 5128 OF 2024 before the District court of Babati at Babati) NASSIBU ISSA RAMADHANI...................................... APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT JUDGMENT July & 27h August, 2024 Kahyoza, J.: Nassibu Issa Ramadhani, the appellant in this appeal, was arraigned before the District Court of Babati at Babati, with the offence of incest by male. After a full trial, the trial court found the appellant guilty, convicted and sentenced him to serve 30 years' imprisonment. It was alleged before the trial court that, on the 4th day of February 2024 at Maisaka "A" street, Maisaka ward within Babati district in Manyara region. The appellant had the carnal knowledge with his daughter one XL, a girl aged 4 years. The appellant pleaded not guilty. The prosecution summoned 7 witnesses and tendered one exhibit to prove the appellant i guilty. The trial court believed the prosecution's evidence, convicted and sentenced the appellant. Aggrieved, Nassibu Issa Ramadhani appealed raising seven grounds of complaint, which are paraphrased as follows- 1) that the trial court did not comply with section 127 (2) of the Tanzania Evidence Act [Cp. 6 R.E 2022]; 2) that trial court based on unreliable, uncorroborated and contradictory prosecution evidence to convict him. He added that it was unlikely that a child of two years would be sent to a shop; 3) That, the appellant did not test the credibility of the victim as he was not present when the victim was testifying; 4) That there was no evidence that the victim was penetrated as her hymen was not perforated and that the reddish color onto the victim's private parts would have been caused by pants or skintight clothes; 5) that the trial court did not to consider the appellant's defence; and 6) That, the prosecution did not prove the case beyond reasonable doubt. When the appeal came for hearing the appellant appeared in person and Ms. Mwanaidi, learned state attorney appeared for the respondent. The 2 appellant did not expound his grounds of appeal. He prayed to rely on the grounds of appeal. The respondent's state attorney opposed the appeal. I will refer to her submission while answering the issues raised by the grounds of appeal. A brief background of this matter is that on the fateful day, the victim mother while bathing the victim realized that the victim felt pains every time she touched her child private parts. She did not take victim's complaint that she felt pains serious. She gave her children food and the went on bed. The following day they went on with their daily chores. While bathing the victim on the second day, the victim complained of pains in her private parts. She, then, inquired from the victim what was the cause of the pains she was feeling. The victim (Pwl) narrated to her mother (Pw2) what had befallen her. The victim stated that while her mother was taking bath, the appellant told her younger brother to go to street for his tool. Now that, the victim's mother and the victim's brother was not around, the appellant took that opportunity to insert his manhood into the victim's private parts. When she started giving bath to the victim, the victim complained again that she felt more pains. She became alert and asked her what had happened. The victim told her that her father had injured her. She told her 3 that he had injured her using his manhood "baba aliniumiza na chululu yake". The victim's mother rushed the victim inside the house as she was bathing her outside the house and examined her private parts. She noted that the victim's private parts were reddish outside. She asked her husband why did he do that to the victim. The appellant denied after she told him that she was going to call neighbours, the appellant admitted to do that, asked for pardon and promised not to repeat. The victim's mother called a police on 5.2.2024 who was not reachable. On 6.2.2024 she notified the police who went home and arrested the appellant. They took the victim to hospital. Emmanuel Hamphrey Mkony (Pw7), the doctor examined the victim and found that the victim's hymen was not perforated but confirmed that her private parts was reddish from outside to the walls of the hymen. Emmanuel Hamphrey Mkony (Pw7), opined from what he saw, that a blunt object had penetrated the victim's private parts. He tendered the PF.3 as exhibit P.l. The appellant denied on oath to commit the offence. He deposed that the victim's mother fabricated the evidence as they were hostile. He deposed that the victim's mother was aggrieved as the appellant denied to repay the money he had borrowed from her and to pay dowry. 4 Looking at the appellant's grounds of appeal, one notes that there is one general ground of appeal, that the prosecution did not prove the case beyond reasonable doubt and several specific grounds of appeal. It trite law that when a general ground of appeal is raised together with specific grounds of appeal, the appellate court may deal only with the general ground of appeal as general ground covers the specific grounds of appeal. I will commence with legal issue, that is whether the trial court did comply with section 127(2) of the Evidence Act. Was section 127(2) of the Evidence Act complied with? The appellant complained without offering explanation that section 127(2) of the Evidence Act was not complied with. The learned state attorney was of the view that the evidence of victim was properly recorded as provided by section 127(2) of the Evidence Act. She invited the court to page 4 of the trial court proceedings which shows that the victim promised to tell the truth. She prayed to refer to the case of Mohamed Jumanne v R, Criminal Appeal 569/2021 tanzlii [2024) TZCA 526, that even if section 127(2) of the law of TEA was not complied with, the court is required to consider the evidence of the child as the error is curable under section 127(7) of the Evidence Act. 5 The trial court's record shows that the trial court made a finding that the victim knows the duty to tell truth as lying was bad. It is true that the record does not tell if the victim promised to tell the truth. To know the duty to tell truth is none thing and promise tell truth is another thing. The record reads- "Court: The child is capable and able to testify as she knows the importance of telling the truth because lying is bad". The trial court did not tell how it came to the finding the victim knows the importance of telling the truth as if that is not enough, the victim did not promise. As to the trial court's failure to indicate how it came to the conclusion that the witness of tender age knew the importance of telling truth, that error is no longer fatal. It is now settled that when a child of tender age gives evidence without taking oath or making an affirmation but after promising to tell the truth to the court and not to tell lies, the need to conduct a voire dire test does not arise. See the case of George Jonas Resilwa v. R. 374/2020 tanzli [2024] TZCA 269. As to the issue that the victim did not promise to tell the truth and not lies, the Court of Appeal has made it express that omission is curable. The Court took that position in George Jonas Resilwa v. R. 374/2020 tanzli 6 [2024] TZCA 269, where it held that failure to comply with section 127(2) of the Evidence Act was not fatal. It observed that- other words, an appellate court should look at the substance of the complaint raised by the appellant and see whether the alleged non-compliance with section 127 (2) of the Evidence Act was of such a nature as to be said, in rational terms, to have produced a substantial defect upon such evidence. The above observation, no doubt is the reason behind the recent introduction of section 127 (7) of the Evidence Act as amended by the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of 2023, which we find it imperative to reproduce, thus: "Notwithstanding any other law to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child in-admissible". I, therefore, find no merit in the appellant's complaint that section 127 (2) of the Evidence Act was not complied with. Did the prosecution prove its case beyond reasonable doubt? The appellant complained that the prosecution did not prove the case beyond reasonable doubt. Associated to this complaint was the appellant's complaint that he was denied an opportunity to test the credibility of the victim as she testified while he was outside the chamber. 7 The respondent's state attorney replied that the prosecution proved its case beyond reasonable doubt. She contended that the victim explained what the appellant did to her. The victim's evidence is key in sexual offences case. She cited Seleman Makumbu . v. R. [2006] TLR 336. She contended that the victim explained how the appellant inflicted injuries to her private parts using his manhood. She conceded to the appellant's submission that he was taken outside when the victim was testing but he heard the testimony of the victim. The court found that the victim a 4 years old child was unable to testify in the presence of the appellant and after he left the victim testified. The appellant was given a chance to cross-examine the victim. The appellant did not cross examine the victim and he did not raise the issue in his defence. She prayed the second and third grounds of appeal to be dismissed. In need, the record depicts that the victim who was 4 years old, testified while the appellant was outside the court room but hearing the evidence from the window. The record showed further that, after the victim gave the family history, she stopped talking. The court directed the appellant to go outside and hear the proceedings from the window to avoid the appellant to face the victim. After the appellant went outside the court room, 8 the victim deposed that the appellant directed her younger brother to go to collect tools. Then the appellant took his chululu (manhood) inserted it into her private parts and warned her not tell her mother or anyone. I find it not supported by record that the appellant was denied an opportunity to challenge the victim by way of cross-examination. It is not against the established practice for a witness to testify behind without facing directly the accused person. It can be done to protect the witness. The evidence of a child may be given under the circumstance where there is no eye to eye contact between the child witness and the accused person; provided the accused person hears the evidence of the witness and he is given a chance to cross-examine the witness. A fair trial demands the evidence to be given in the presence of an accused person and the accused person to be given an opportunity to challenge the testimony. The appellant was fairly tried had heard the evidence and he was afforded an opportunity to cross-examine. I am of the view that the appellant was not prejudiced by the fact that he heard the victim of the victim through a window as he was given a chance to cross-examine. The appellant was given a chance to cross-examine the victim. The appellant did not cross examine the victim. He also did not raise the issue 9 that he did not hear or testy the credibility of the victim in his defence. It is trite law on failure to cross-examine on a fact, that fact is taken to be true a stated by the Court of Appeal in the case of Damian Ruhele vs R., (Criminal Appeal 501 of 2007) [2012] TZCA 160 (2 March 2012), where the Court observed that- "It is trite law that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence." After considering the victim's evidence, I have no reason to think that the victim was coached. The victim did not report to her mother until when her decided to find out why she felt pains in her private parts. Emmanuel Hamphrey Mkony (Pw7), the doctor, corroborated the victim's evidence that the victim's private parts demonstrated signs that a blunt object penetrated them. The victim's evidence was credible. That done, the next question was whether the victim was penetrated. The victim deposed that the appellant inserted his manhood into her private parts and she felt pains. Emmanuel Hamphrey Mkony (Pw7), deposed that the victim's hymen was not perforated but there were signs that the blunt object penetrated her private parts. The victim's mother also deposed that io she saw the victim's private parts reddish. The appellant complained that the since the victim's hymen was not perforated there was no penetration. As the state attorney submitted, rape is proven even by slight penetration. She made a reference to the decision of the Court of Appeal in Amir Rashid v R. Cr. Appeal No 187/2018 tanzlii [2020] TZCA 18061, which quote the decision in the case of Hassan Bakari @ Mama Jicho v.R. 103/2012 CAT, where the court held the slight penetration was sufficient to prove the offence of rape. I am of the view that there was slight and that the slight penetration was enough to prove that the appellant had sex intercourse with the victm. The appellant complained further that, the trial court did not consider his defence. I found at pages 4 to 5 of the judgment, where the trial court considered the appellant's defence. The appellant's defence was that he had quarrels with the victim's mother, his wife. The appellant's wife gave evidence and the appellant did not cross-examine her. The appellant did not ask the victim's mother as to the status of their relation. He raised the issue that he had bad blood with his wife in his defence. Such a defence is considered as an after-thought. 11 It is astonishing as to when did the appellant become aware that his wife fabricated the case against him. Is it when he was making his defence or at the time he was arraigned in court? Had it been that the appellant knew that the case was fabricate from the time he was charged, then he ought to have asked his wife question(s) seeking to dig out the bases of the allegations from his wife. And if, the appellant knew that the case was fabricated against him at the time he was making his defence, then he ought to have informed the trial court how he acquired the information. Like the trial, court, I find no merit in the allegation that the victim's mother, who is the accused person's wife fabricated the case against the appellant. I also find that the court considered the appellant's defence and found it not worthwhile. The state attorney referred this Court to the case of George Jonas Resilwa V R. (supra), when the CAT stated that to consider the evidence is one thing and to find the evidence credible is another thing. Thus, the appellant's complaint that his defence was not considered has no merit. The evidence of the victim of sexual offence is key in proving sexual offences, as decided in Seleman Makumbu v. R. [2006] TLR 336. The victim in this case, deposed that the appellant penetrated her and Emmanuel 12 Hamphrey Mkony (Pw7), the doctor, established that the victim was penetrated. The victim's mother stated that the victim was four years as she was born on 25. 6. 2019. The victim and the victim's mother deposed that the appellant was the victim's father. The appellant did not dispute that contention that he was the victim's father. I find it proved that the appellant was the victim's father and there is evidence from the victim that the appellant penetrated the victim's private parts. Hence, I find that the prosecution proved the elements of the offence of incest by male contrary to section 158 (1) (a) of the Penal Code beyond reasonable doubt. In the end, I find that the prosecution did prove that the appellant committed the offence of incest by male, I uphold the conviction and dismiss the appeal. I also uphold the sentence of thirty years old imprisonment as that is the minimum sentence provided by the law. It is ordered accordingly. Dated at Babati this 27th day of August, 2024 John R. Kahyoza Judge 13 Court: Judgment delivered in the presence of the appellant and Mr. Rwezahura, State Attorney for the respondent. B/C. Ms. Fatina (RMA) present. Right of further appeal explained. John R. Kahyoza Judge 27. 8.2024 14