NOEL SHANA URASSA VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 18315 OF 2024 (Originating from Criminal Case No. 363 of 2022 of Moshi District Court at Moshi) NOEL SHANA URASSA ……………………………………. APPELLANT VERSUS REPUBLIC …………………………………………………. RESPONDENT JUDGMENT 18/09/2024 & 27/09/2024 SIMFUKWE, J. Before the District Court of Moshi (the trial court), the appellant was charged and convicted of an unnatural offence contrary to section 154(1)(a) and (2) of the Penal Code [Cap 16 R.E.2022]. He was sentenced to thirty years imprisonment. 1 It was alleged in the particulars of the offence that on the 7th day of July 2022, at Kindi Msasani, Kibosho area within the District of Moshi in Kilimanjaro region, the accused had carnal knowledge of one JMJ (identity concealed) against the order of nature. PW1, who claimed to be the victim’s father, stated that on the fateful day, he returned home from work and called his daughter, the victim, three times without response. He then proceeded to fetch water. Upon his return, PW1 found the victim outside the house trembling. When he inquired, the victim told him that the appellant, whom she referred to as Baba P, had done a bad act against her anus. PW1 decided to take the victim to his neighbour, Mama Angel. The victim narrated the same story to Mama Angel as she had told her father. The matter was reported to the police station, then, the victim was taken to hospital. During the preliminary hearing, the prosecution tendered a PF3, which was admitted as Exhibit P1. Further, the victim who testified as PW2, testified that the appellant had carnal knowledge of her against the order of nature. The victim identified the appellant during the trial as the person who committed the alleged offence. In his defence, the appellant explained how he was arrested and taken to the police station. The appellant stated that he was initially charged with 2 stealing but was later charged with this case because the brother-in-law of the victim’s father promised to jail him. The trial court was satisfied that the prosecution's case was proved beyond reasonable doubt. Hence, it convicted the appellant and sentenced him to serve 30 years imprisonment. Aggrieved, the appellant lodged this appeal on five grounds of appeal, which are reproduced hereunder: 1. That, the learned trial Magistrate grossly erred both in law and fact in failing to note that there are (sic) variance between the charge sheet and the evidence on record. The charge displays the locus in cuo (sic) to be "Kindi Msasani Kibosho Area" While the victim's father (PW1) testified that he is living at "Maili Sita Msasani" With his wife and children (PW2 the victim). 2. That, the learned trial Magistrate grossly erred both in law and fact in relying upon the evidence of the victim of the alleged offence (PW2) in convicting the appellant despite the said evidence being taken in total contravention of section 127 (2) of the evidence Act, Cap 6 R.E 2022. 3 3. That, the trial court grossly erred in both law and fact in failing to draw an adverse inference against the prosecution for failure to summon the very crucial witnesses who, if summoned, could have had shed more light on their case i.e., the women who are said to have had inspected and interrogated the alleged victim (PW2) at the first earliest possible moment, the medical doctor who is alleged to have medically examined PW2 and the police investigator. 4. That, the learned trial Magistrate grossly erred both in law and fact in using weak/incredible and wholly unreliable prosecution evidence as a basis of the Appellant's conviction. 5. That, the learned trial Magistrate grossly erred both in law and fact in convicting and sentencing the appellant despite the charge being not proved beyond reasonable doubt against the Appellant and to the required standard by the law. 4 At the hearing of the appeal, which proceeded by filing written submissions, the appellant was unrepresented, while the respondent was represented by Mr. Frank D. Wambura, the learned State Attorney. The appellant, did not file his submission in chief; instead, he adopted his grounds of appeal. In reply, Mr. Frank consolidated the 3rd, 4th, and 5th grounds of appeal by stating that it is trite principle of law that in criminal cases the prosecution is obliged to prove the offence beyond reasonable doubt as per section 3(2)(a) of the Evidence Act [Cap 6 R.E 2022]. In the present case, Mr. Frank commented that the prosecution fulfilled this duty during the trial. On the allegations that the prosecution did not summon material witnesses, the learned State Attorney argued that all the necessary witnesses were called. He contended that in sexual offences, the best evidence comes from the victim of the crime, as extracted from the case of Seleman Makumba vs. Republic, Criminal Appeal No. 94 of 1999, at page 8. The learned State Attorney elaborated that in the present matter, evidence of PW2, who was the victim, established how the appellant committed the offence. At pages 7 to 8 of the trial court proceedings, the victim testified how the appellant sodomized her on the fateful date. Mr. Frank was assured that the testimony of the victim proves 5 all the necessary elements of the offence of unnatural offence. Hence, the offence was proved beyond a reasonable doubt. Responding to the issue of failure to call a material witness, namely the doctor, the learned State Attorney referred this court to the proceedings, particularly pages 4 and 5 of the trial court during the preliminary hearing, where a PF3 was admitted as exhibit. At page 5, the appellant was asked whether he objected to the admission of the PF3 and replied, "I have no objection, no need to call a doctor." Thereafter, the PF3 was admitted as Exhibit P1. The learned State Attorney cited section 192(4) of the Criminal Procedure Act, which provides that: “192(4) Any fact or document admitted or agreed, whether such fact or document is mentioned in the summary of evidence or not, in a memorandum filed under this section shall be deemed to have been duly proved; save that if, during the course of the trial, the court is of the opinion that the interests of justice so demand, the court may direct that any fact or document admitted or agreed in a memorandum filed under this section be formally proved.” 6 From the above provision, Mr. Frank remarked that the PF3 admitted during the preliminary hearing was rightly admitted and deemed to have been duly proved. The learned State Attorney expounded further that the provision prescribes that the court may, in its opinion, direct the calling of a witness to prove a fact formally. However, the learned State Attorney was of the view that, given the circumstances in this appeal, there was no need to fulfil this requirement since the court did not see any need to call a doctor. Mr. Frank supported his assertion with the case of Mgonnchori (Bonchori) Mwita Gesine vs. Republic, Criminal Appeal No. 410 of 2017 CAT at Mwanza, which cited the case of Jackson Daudi vs. Republic, Criminal Appeal No. 11 of 2002 at pages 10 and 11. Armed with the above principle of law, Mr. Frank maintained that the complaint of failure to call a medical doctor are baseless since the PF3 was rightly admitted and deemed to be proved before the court of law, hence corroborating evidence of the victim. He further argued that the fact that the appellant conceded to his personal particulars and disputed other facts does not negate the fact that he had no objection to the admitted PF3. 7 Opposing the ground that the trial court used weak and unreliable evidence to convict the appellant, the learned State Attorney submitted that evidence adduced during the trial was strong and corroborated by the PF3. On the second ground of appeal that evidence of the victim was taken in contravention of section 127(2) of the Evidence Act (supra), Mr. Frank referred page 7 of the trial court proceedings. He submitted that the court took initiatives to test the competence of the victim on whether she understood the meaning of oath and if she promised to tell the truth. The Court noted that the victim possessed sufficient intelligence and promised to speak the truth. Lastly, regarding the variance between the charge sheet and the evidence on record, the learned State Attorney explained that the charge indicates the scene of crime as Kindi Msasani Kibosho area. He insisted that it was true that PW1 lived in that area and that’s where the offence was committed. Mr. Frank concluded his submissions by imploring the court to dismiss the appeal and uphold the conviction and sentence of the trial court. Having reviewed the grounds of appeal, submission of the respondent, and the trial court’s records, the issue for determination is whether this 8 appeal has merit, focusing on whether the prosecution proved the case beyond reasonable doubt. On the first ground, the appellant lamented that there was variance between the charge and the evidence on record. That, the charge sheet shows that the offence was committed at Kindi Msasani Kibosho, while PW1 testified that he resides with the victim at Mailisita Msasani where the offence was committed. I am aware that any variance between the charge and the evidence on record, which touches the root of the case, is fatal and renders the prosecution's case unproven. See: Hussein Kausar Rajan vs Republic (Criminal Appeal 670 of 2020) [2022] TZCA 571 (22 September 2022) Tanzlii. While I acknowledge this principle of law, in the present case, it is an undisputed fact that the appellant and the victim’s family are neighbours and reside at Mailisita Msasani. Therefore, the noted discrepancy is not fatal and does not go to the root of the case. It is the strong observation of this court that the noted contradiction does not prejudice the appellant since it was testified that the act occurred at the appellant's house, who is a co-tenant of the victim’s family. Thus, the first ground of appeal is without merit. 9 Turning to the second ground of appeal, that evidence of the victim was taken in contravention of section 127(2) of the Evidence Act (supra), the argument was refuted by the learned State Attorney who argued that the section was complied with. It is well known that the provision of section 127(2) of the Evidence Act requires a victim of tender age, before giving evidence, to promise to tell the truth and not lies. This provision appears simple. However, this court, as well as the Court of Appeal, has expanded the above provision by providing clear guidelines to be complied with before taking a promise or oath from a child of tender age. That, before concluding that a victim of tender age has promised to tell the truth, the trial magistrate must ask the child simple questions to determine if the child understands the meaning of speaking the truth and not lies. See the case of Geoffrey Wilson vs Republic, Criminal Appeal No. 168 of 2018 (Tanzlii) at page 11; the case of Edmund John @Shayo vs Republic, Criminal Appeal No. 336 of 2019 at page 14; and the case of John Mkorongo James vs Republic, Criminal Appeal No. 498 of 2020 [2022] TZCA 111 [Tanzlii], among others. Equating the above requirement with what transpires before the trial court, as a matter of reference, I will quote what was recorded by the trial 10 magistrate as reflected at page 7 of the typed proceedings. (In order to conceal the identity of the child, I will refer to the victim as YZ). “PW2: YZ, 9 years old, standard one at Msasani primary school. Promised to speak truth. She knows the meaning of oath. I promise to state truth. Swear and States: - Court: The child possessed enough intelligence and she promised to speak truth” From what transpired before the trial court it is obvious that the modality opted by the trial magistrate contradicts the established principle of law that requires the trial magistrate to ask some simple questions to the child of tender age before concluding whether he should promise to speak the truth or take an oath. See: John Mkorongo James vs Republic (supra). However, failure to abide with the said principle of law cannot rescue the appellant since section 127(7) of the Evidence Act, as amended by Legal Sector Laws (Miscellaneous Amendment) Act, No. 11 of 2023 provides that failure to abide by the requirement of section 127(2) of the Evidence Act shall not render the evidence of such a witness of tender age inadmissible. In the recent case of Abdul Akwilina Mramba & Others vs Republic (Criminal Appeal No. 342 of 2021) [2024] TZCA 704 (9 August 2024) Tanzlii, while making reference 11 to the amendment of section 127(7) (supra), the Court of Appeal held that: “Nevertheless, it should be noted that the amendments to the Evidence Act ushered in by the Legal Sector Laws (Miscellaneous Amendment) Act, No. 11 of 2023, which amends section 127 by adding subsection (7) which reads: “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 inadmissible." This defeats any contention to render such evidence of a child of tender age, such as PW2 inadmissible.” Emphasis added Based on the above findings, it suffices to say that the second ground of appeal is without merit. The next grievance to address concern the allegation that the prosecution failed to call material witnesses, specifically the doctor and the women who inspected the victim. This allegation was disputed by Mr. Frank, who 12 submitted that there was no need since the PF3 was admitted during the preliminary objection and the appellant stated that there was no need to call the doctor. This ground of appeal will not detain much time. As rightly submitted by the learned State Attorney during preliminary hearing, while tendering the PF3, the records show that the appellant was asked and replied that there was no need to call the doctor as a witness. At page 5 of the proceedings, the accused stated: "I have no objection, no need to call a doctor." Therefore, the contention that the prosecution failed to call a material witness to wit, a doctor is an afterthought at this stage of appeal. This also applies to the assertion of failing to call women who interrogated and inspected the victim. This contention is void of merit since the best person to prove that the victim was sodomized is the victim herself. See the case of Seleman Makumba (supra) and the recent case of Posian s/o Ntamaboko vs Republic (Criminal Appeal No. 206 of 2022) [2024] TZCA 900 (17 September 2024) Tanzlii at page 9 where it was held that: “It is now settled law that, except for any sufficient reason which must be stated in the judgment, the best evidence 13 in sexual offence is the evidence of the victim. Put in other words, the best person to identify an assailant in a sexual offence, is the victim.” In the case at hand, the victim explained how she was penetrated by the appellant. Moreover, evidence of penetration was corroborated by a PF3 report, which stated that the victim's anus was reddish and the sphincter muscle was loose. Lastly, regarding the 4th and 5th grounds of appeal that the prosecution's evidence was weak and that the case was not proved beyond reasonable doubt; it is the observation of this court that the case was indeed proved beyond reasonable doubt. As noted earlier, in sexual offences cases, the best evidence comes from the victim. Apart from that, there is no specific area of contradiction pointed out by the appellant to establish that the prosecution's case was not proved beyond a reasonable doubt. In the upshot, having found all grounds of appeal devoid of merit, I hereby dismiss the appeal in its entirety and uphold the conviction and sentence meted against the appellant. Ordered accordingly. Dated and delivered at Moshi this 27th day of September, 2024. 14 X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 27/09/2024 15