JOHN GOLAN VS REPUBLIC JUDGMENT 4

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO.21444 OF 2024 (Arising from Criminal Case No. 40510 of 2024 of Shinyanga District Court Before: C.S LANGAU SRM) JOHN GOLAN @MATEO ……………………………………APPELLANT Versus REPUBLIC…………………………………….…………RESPONDENT JUDGMENT 4th & 23rd September, 2024. MASSAM, J:. In the District Court of Shinyanga at Shinyanga appellant one John Golan was charged with the offence of Unnatural offence contrary to Section 154 (1) (a) and (2) of the Penal Code, Cap. 16 R:E 2022. It was alleged that on the material date that on diverse dates between 20th day of December, 2023 to 23rd day of December, 2023 at Kitangiri area within Shinyanga Municipality in Shinyanga Region had sexual intercourse against order of nature with the victim aged 8 years for the purpose of hiding his identity he will be termed as victim. The trial court after heard the case found accused guilty as charged and he was convicted and sentenced to life imprisonment. 1 Aggrieved with such conviction and sentence, appellant has approached this court marshalled with nine grounds of appeal as follows; 1. That, the trial court magistrate erred in law and fact by using the weak evidence of the prosecution side which is not legally sufficient. 2. That, the trial court magistrate erred in law and fact by using evidence of PW3 (doctor) who explained that there were bruises and rashes that spread within the last 72 days (3 days ago). 3. That, trial court magistrate erred in law and fact by Using PF3 dated 24/01/2024 while it was alleged that the event occurred between 20th December, 2023 and 23rd December, 2023 (one month since the event occurred) 4. That, the trial court magistrate erred in law and fact by convicting and sentenced me a life sentence using the evidence of victim who did not tell the court if shouted when he was subjected to the act or to inform colleague (children) who say he was with in my saloon. 2 5. That, the trial magistrate erred in law and fact by failing to focus on my defense, which was more serious, especially the issue of presence of a TV in my saloon. 6. That, the trial court magistrate erred in law and fact to rely on the explanations and evidence of PW1 who said in court that I promised to give him my saloon after having sex with him. 7. That, the trial court magistrate erred in law and fact to rely on the information of the victim’s mother who claimed that the clothes with excrement were identified to be on December 20/23/2023 8. That, the trial court magistrate erred in law and fact to rely on the evidence of PW4 who said that in his investigation he discovered other children were coming to my saloon but those children were not brought before the honourable court to testify especially the presence of TV in my saloon 9. That, the prosecution side did not prove their case beyond reasonable doubt. 3 During hearing of this appeal, the republic was represented by Mr. Goodluck Saguya learned State Attorney while the appellant appeared in person, unrepresented. Arguing for the appeal, appellant said that he is appealing to this court as he was convicted with offence which he did not commit and prayed this court to consider his grounds of appeal and left him free to join his family. He added that, the trial court erred in law and facts as it did not consider his defence but the evidence of PW3 who was the doctor and the one who examined the victim and found him with bruises, the offence was alleged to be committed on 20/12/2023 but the doctor said that he attended the victim on 20/4/2024. Also, the trial court was wrong to consider the evidence of the mother of the victim who said that the victim's clothes had stool which she discovered it on 23.1.2024 while the offence is alleged to be committed on 20th and 23rd December, 2023 and same proved that he did not commit offence. More over, the appellant argued that, the lower court erred in considering the evidence of PW4 who was a policeman who said that in 4 his investigation he finds out that there were some children who used to come to his saloon, but no one called to prove that he had a TV as testified by PW1. On the side of respondent, Mr. Saguya S/A resisted the appeal instead supported conviction and sentence meted upon the appellant by the trial court. In his submission he said that the appellant appealed to this court and brought 9 grounds of appeal which he will urge it as follows, ground no. 1, 4 and 6 will be urged together, no. 2 and 6 also will be urged together, and no. 5, 7 and 8 but ground no. 9 will be urged it separately. Starting with ground No. 1, 4 and 6 appellant complained that the evidence of prosecution was not enough to convict him especially the evidence of victim, Mr. Saguya he contended that, the evidence was enough to convict the appellant by considering the evidence of PW1 (victim) and PW3 (medical doctor). Mr. Saguya added that the evidence of PW1 was clear and straight that on 20.12.2023 he went to the saloon of appellant in order to watch TV appellant told her to go back of the saloon where there was unfinished house and he told him to put off his clothes to see if he usually wash his private parts well. 5 More over, after that appellant started to inspect him, but later on, appellant took his penis and insert it to his victim 's anus, after appellant finished up, he gave him TZS 500, and warn him not to tell anyone. Additionally, PW1 also said that on 23/12/2023 he went to the saloon and appellant told him to go to the same place where they met and inserted his penis to his anus, after that he told him to go home and wash himself but he promised him when he grows up, he will give him that saloon. It was submission of Mr. Saguya that, it is not always that the victim of sexual offence to report the matter immediately or not report at all, but in different decisions court of appeal finds out that it was not fatal if the offence is not reported on time.Also he said that victim of the sexual offence not always claim for help after the commitment of the offence, and the reasons can be un due influence or threat. He cemented his argument by referring the case of Abilah Mshamu Mnali v Republic Criminal Appeal No. 98/2020 page No. 8 CAT Mtwara. Indeed, Mr Saguya submitted further that victim was given money and second time he was promised to be given saloon, that’s why he did not disclose that facts to anyone until when his mother asked him, its when he said the truth. He added that as we all knows the best 6 evidence comes from the victim this court consider the victim evidence to be credible and consistency and after join it with other evidence that's why the conviction was found. In regard to the 2nd and 3rd ground of appeal, appellant complained that evidence given by the doctor which said that he found victim with bruises and rushes in his anus show that the penetration happened within 72 hours. More over, the appellant stated that, court erred in recording the date in the PF3 as it was different with the date when the offence was occurred as the offence is alleged to be committed on 20th and 23rd December, 2023 and PF3 was filed on 24.1. 2024. Mr. Saguya responded that the duty of the doctor was to examine the victim who he did and found out that his anus had bruises and rushes which proved that victim was penetrated with the blunt object.According to the court records show that PF3 show that the offence was committed within 72 hours but this facts is different with the PF3 which was filled after one month which is more than 72 hours between the time for commitment of the offence and the date of filing of the PF3. So the issue of rushes and bruises which was found by the doctor can not be a proof of penetration. So, this court found these grounds with merit and hereby allowed. 7 With respect to grounds No. 5, 7 and 8, appellant complained that the trial court erred to consider his defence which was more serious especially to the issue of having TV in his office. More over he complained that PW4 said that there were some other children who used to go to appellant’s saloon but were not called. Mr Saguya contended that, failure to consider defence in the trial court is fatal but he said that his defence was considered in page no 9 and 10 of the copy of the judgment. Again, the issue of having TV in his saloon was testified by two witnesses PW1 and PW4 who said that when he went to the said saloon as investigator, he saw that TV. More on that PW1 said that the said date was alone and he was penetrated by the appellant, his evidence was enough to prove that he was penetrated.According to that this court is in view that these ground has no merit so it is hereby dismissed. Coming to the ground No. 9, which appellant complained that the offence was not proved beyond the reasonable doubt. It was submission of Mr. Saguya that the case was proved beyond reasonable doubt as it is explained above. So he prays to this court to find that ground with no merit and dismiss the same and trial court decision to remain undisturbed. 8 In his rejoinder, appellant reiterated his submission in chief as argued that this court to consider his ground of appeal, and then left him free. Having heard both parties on merit and upon scanning the trial courts records, my deliberation of this appeal to the best. I find out that, the major contention between the parties is whether the prosecution side proved the case beyond reasonable doubt. It is a trite law that onus of proving in criminal cases is always in the side of the prosecution, as elaborated in the case of Joseph John Makune vs. Republic (1986) TLR 44 at page 49 where the court of appeal held;- “the cardinal principle of our criminal law is that the burden is on the prosecution to prove its case, no duty is cast on the accused to prove his innocence. There are a few well known exceptions to this principle one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities.’’ Also, per Section 3 (2) (a) of The Evidence Act provides the standard of proof that "A fact is said to be proved when - (a) in criminal matters, except where any statute or other law provides otherwise, the 9 court is satisfied by the prosecution beyond reasonable doubt that the fact exists;'' Likewise, Section 110 (1) of the Evidence Act provides that, "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”. See the case of Anthony Masanga vs. Penina (Mama Mgesi) and Another, Civil Appeal No. 118 of 2014. Coming to this case in order to be satisfied if the case at hand was proved beyond reasonable doubt, this case will look at Section 154 (1) a whereby basic ingredients of unnatural offence is provided for, while punishment thereon is under Section 154 (1) a and (2) of the Penal Code, Cap. 16 R.E 2022. For clarification, Section 154. -(1) Any person who- (a) has carnal knowledge of any person 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. Sub section (2) of the provision provides that’ ’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” 10 Therefore, it is clear that for the offence of un natural offence to be established; - first, there must be penetration of a male organ (penis) into the anus of the victim and second, accused person must be the one who is responsible for the act. Back to our case, starting with ground No. 1, 4 and 6 appellants complained that the evidence of prosecution was not enough especially the evidence of victim. Mr. Saguya stated that the evidence was enough to convict the appellant by considering the evidence which was brought to the court especially of PW1 (victim) and PW3 (medical doctor) all evidence was heavier one which collaborated with other pieces of evidence by joining together cause appellant to be found guilty. I have gone through the trial court records. Indeed, the evidence of PW1 and PW2 showed that, the victim was suffering from the stomach that why stool was found in his clothes,but later on Pw2 after tried to ask him for many times and threat to beat him it’s when he said that he was penetrated by the appellant, so his first story is different with his second story which support the evidence of PW3 (medical doctor)evidence showed that the victim was penetrated after taken to the hospital after elapse of one month. 11 It is trite law that the best evidence in sexual offence comes from the victim as it was held in the case of Seleman Makumba vs Republic, Criminal Appeal No 194 (unreported) that “True evidence of rape has to come from the victim if an adult, that there was penetration and no consent, and in the case of any other woman where consent is irrelevant there was penetration” From the evidence on record, it is plain clear that the victim PW1 at the first instance told PW2 that he was suffering from stomach, that why there was stool in his clothes, while the evidence of PW3 showed that he was penetrated. At this point, this court is in the view that the evidence of PW1 is unreliable and this court agree with submission of appellant that the evidence of prosecution was weak as the victim testified two different stories to the same witness. Coming to the 2 and 3 ground of appeal, appellant complained that evidence given by the doctor which said that he found victim with bruises and rushes in his anus which show that was happened within 72 hours. Also, court erred in recording the date in the PF3 as it was different with the date when the offence was occurred as the offence is alleged to be committed on 20th and 23rd December, 2023 and PF3 was filed on 24.1. 2024. 12 I have scanned the submission from both parties and going through the trial records. Indeed, it is on the record that the alleged event took place between 20th and 23rd December, 2023, similarly the charge provides so. But the matter was reported at police station on 24/1/2024, the victim was taken for medical examination 24/1/2024 the PF3 was filed,and in that PF3 the medical doctor after his examination he opined that victim was penetrated, this court is asked itself if at all the offence was committed at December how could the bruises and rushes was still found on January after elapse of one month and proof penetration? The bruises and rushes found could be caused by other things than penetration. Again Mr. Saguya stated that victim failed to report the matter to his mother because at first, he was given 500 and later on he was promised to be given saloon, this court ask itself how could a boy of only 8years could manage to keep a secret like that for one month because of the promise which he was given by the appellant? This court finds the said evidence to be contradictory and weak to prove penetration and convict appellant. Coming to the issue of delay of reporting the matter. In the case of Director of Public of Prosecution vs Simon Mashauri, Criminal Appel No. 394 of 2017 (CAT) it was held that “Besides that, PW1 did not 13 report to the police station at the earliest opportune time. In that night, she took shower which was not proper in the circumstances and slept. In the next morning, she went to the church. The question we ask our selves, was it wise idea going to church instead of taking the necessary steps of reporting the rape incident to the police station.PW1 said she did not do it during that night because it was late. We think, if that was the case, reporting to the police in the following day would have been the first thing to do instead of going to church and waiting to report to PW7 first. We find her evidence to be unreliable (Emphasis added)’’. This court has found it unsafe to convict an accused person in such unexplained delays in reporting the matter to police since the occurrence of the offence. See also the case of Tito Paulo Kuchungura vs Republic, Criminal Appeal No. 570 of 2020 (CAT), Thomas Msemakweli vs Republic, Criminal Appeal No. 91 of 2019 [2020] TZHC 452 (31 MARCH 2020) TANZLII. According to that this court find the said grounds of appeal to have merit and allowed. In ground no 5,7 and 8 appellants complained that the trial court erred without focus in his defence which was more serious especially to the issue of having TV in his office. More over he complained that PW4 said that there were some other children who used to go to appellant’s 14 saloon but were not called. Mr Saguya argued that failure to consider defence in the trial court is fatal but he said that his defence was considered in page no 9 and 10 of the copy of the judgment. The evidence of PW1 and PW4 said that when he went to the said saloon as investigator, he saw that TV. In my thorough scanning I see this ground as misplaced. Thus, I associate myself with Mr. Saguya that the defence evidence was considered in page no 9 and 10 to the copy of the judgment much but did not convince the trial court for it to accord evidence. It is trite law that failure to consider defence evidence amount to defective judgment. See case of Leonard Mwanashoka vs Republic, Criminal Appeal No. 226 of 2014 (unreported), Abel Masikiti vs Republic, Criminal Appeal No. 24 of 2024. However, in the normal circumstances, the prosecution case is firmly proved depending on its evidence and not defence evidence.Again this court find the said ground of appeal without merit and dismissed . In regard of the ground of appeal No. 9 that the offence was not proved beyond the reasonable doubt. It was submission of Mr. Saguya that the case was proved beyond reasonable doubt as it is explained above. In consideration of the submission of both parties and records of 15 the trial court that there was inconsistences and contradiction of the prosecution witnesses as we all knows that in sexual offences cases the best evidence comes from the victim but unfortunately in our case victim testified different stories to PW2 and PW4 in relation to the commitment of the offence, at first, he said that his stomach was paining (ache), second stories he said that he was penetrated by the appellant. From the findings this court failed to assess the demeanor of this witness; this court is in view that the said contradiction creates some doubts if this offence was committed. Thus, this court is in support of the submission from appellant that the case was not proved beyond reasonable doubt as it was held in the case of case of Mohamed Haruna @ Mtupeni & Another vs. R, Criminal Appeal No. 25 of 2007 (unreported) where it was held that; "of course in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence." With all these observations, I find this appeal to have been brought, with sufficient cause, I quash the conviction and set aside the 16 sentence and order the appellant's immediate release from custody unless otherwise lawfully held. It is so ordered. DATED at SHINYANGA this 23rd day of September, 2024. R.B. Massam JUDGE 17