JUMA ERICK

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA CRIMINAL APPLICATION NO. 20231116000037342 (Arising from Decision of District Court of Shinyanga in Criminal Case No. 140/2023 dated 26th September 2023, before Hon. Y. ZAHORO, SRM) JUMA s/o ERICK @ LUDOVICK ……………….…………….....…..1ST APPELLANT BARAKA s/o OBEDI @ YAMUNGU………………………………… 2ND APPELLANT VERSUS THE REPUBLIC……………………………………………….……..…… RESPONDENT JUDGMENT Date of Last Order 11.09.2024 Date of Judgment: 27.09.2024 MWAKAHESYA, J.: In the District Court of Shinyanga District, at Shinyanga, the appellants were tried and convicted of Unnatural offence c/s 154(1)(a) and (2) of the Penal Code. It was the prosecutions case that on 03/07/2023 at Bushushu area, within Shinyanga Municipality the appellants did have carnal knowledge of one “AM” (name withheld to protect his identity), a boy aged 11 years, against the order of nature. AM, (PW2), gave evidence that, on the material day, while on his way back home from school, he was accosted by the appellants who took 1 him to a hut and the 2nd appellant went on to sodomize him with the aid of the first appellant who had tied him. Meanwhile, it was the evidence of PW1, AM’s mother, that on 03/07/2023 she observed that AM was unable to sit properly and complained of experiencing pain in his anus. Upon inspection, PW1 found the same bruised and emitting a foul smell, she thought that it was a fungal infection. However, when quizzed on the following day, AM revealed that on his way back from school the previous day he was accosted by the appellants who took him to a location, subdued him, and one of them sodomized him. This information was relayed to PW4 (AM’s father) who proceeded to report the matter to the police thus leading to the arrest of the appellants. Kambi Buteta (PW3), a medical doctor, observed AM on 04/07/2023 and found that his anal muscles were loose. He therefore concluded that a blunt object must have been inserted in his anus. PW3 filed a PF3 and the same was tendered by him as Exhibit “Pe1”. As alluded earlier, the appellants were convicted as charged and sentenced to life imprisonment. It is against the conviction and sentence that the appellants have preferred this appeal. The grounds contained in the petition of appeal are to the effect that: 2 1. The trial magistrate erred in convicting the appellants while there was contradictory evidence between PW2 and PW3 on penetration; 2. The trial magistrate erred in law and fact in holding that the appellants had carnal knowledge of the victim; and 3. The prosecution failed to prove their case beyond reasonable doubt. At the hearing of the appeal, the appellants appeared in person, unrepresented, while the respondent Republic was represented by Ms. Nyamnyaga Magoti, learned State Attorney. The appellants having adopted their grounds of appeal did not make further elaborations than insisting that they be set free. In reply, Ms. Magoti was clear that the respondent was resisting the appeal. She then went on to reply to the grounds of appeal in sequence. Submitting on the first ground of appeal she was of the view that having gone through the evidence of PW2 and PW3 she has not found any contradiction, and the appellants have not elaborated the contradiction and how the same, if any, has prejudiced them. PW2 (AM) testified that it was 3 the 2nd appellant who sodomized him. Meanwhile, PW3, who examined PW2 testified on how he conducted the examination. On the second ground of appeal, the learned State Attorney stated that the court did not err and the “blunt object” is a male organ of the second appellant and PW2 gave evidence during trial on how the second appellant inserted his male organ in him. On the third and final ground of appeal, Ms. Magoti submitted that, the prosecution proved the case beyond reasonable doubt. The prosecution had the duty to prove two things, namely: that the male organ of the appellant(s) penetrated the anus of the victim and that the appellants are the ones who committed the act. During trial PW2 described how the second appellant did this and his evidence is corroborated by PW3 who examined him and observed that the he was penetrated, in his anus, by a blunt object. PW3 also filed a PF3 which was tendered as Exhibit P1 (sic). As to who committed the offence, it was also proved by PW2 who is the victim. PW2 mentioned the second appellant as the one who sodomized him while the first appellant covered his mouth and that both appellants threatened him not to reveal what happened. Ms. Magoti 4 submitted that the trial court believed PW2 and he was a reliable witness because he was able to reveal the identity of the appellants to PW4 (his father). PW2 was also able identify the appellants in the company of a third person. The learned State Attorney galvanized her submission by stating that according to the case of Selemani Makumba v. Republic [1999] TLR 379, PW2 is the best witness since he is the victim. The learned State Attorney urged the court to dismiss the appeal. With the leave of the court, Ms. Magoti addressed a matter of law which was that, the conviction of the appellants did not conform with section 312(2) of the Criminal Procedure Act (the CPA) and she prayed that the court invokes section 388 of the CPA since the error did not prejudice the appellants. In rejoinder the first appellant submitted that, the case against them was framed. PW2 testified that he was sodomized when he was coming from school, but no teacher came to testify that PW2 had gone to school that day. Also, the owner of the house did not come to testify that he knew where the house keys were kept. 5 The second appellant submitted that, PW3 testified that he inserted his finger in PW2 and concluded that a blunt object had been inserted in PW2's anus, he (second appellant) does not understand what a blunt object is because even a finger is a blunt object. Having gone through the record, the petition of appeal and the submissions of both sides at the hearing, it is now the court’s duty to determine the appeal on merit. As submitted by the learned State Attorney for the respondent Republic, there is nothing on record showing contradiction between the evidence of PW2 (the victim) and PW3, the medical doctor who examined the victim, with regards to penetration. While, PW2 gave a detailed account of how he was abducted by the appellants when he was on his way home from school and ended up being sodomized by the second appellant, through the same inserting his penis in his anus, PW3 gave evidence on how he observed PW2’s anus and found the anal muscles loose and concluded that a blunt object had been inserted therein. The appellants have failed to highlight the alleged contradiction in the two pieces of evidence and as correctly submitted by the learned State Attorney, have failed to show how they have been prejudiced. The first ground of appeal is therefore, devoid of merit and it is dismissed. 6 The second ground of appeal need not detain us much. PW3, after observing the victim (PW2/AM) and finding his anal muscles slightly loose concluded that a blunt object had been inserted therein. PW3 did not conclude that the mentioned blunt object was one of the appellants’ penis or anything else. What he did was within his parameters as an expert and being an expert, his evidence deserves respect, though it is not binding. See: Allan Duller v. The Republic, Criminal Appeal No. 367 of 2019 where the Court of Appeal held that: “We need not overemphasize that expert evidence deserves respect though not binding to which a departure calls for an explanation.” Moreover, PW3’s evidence corroborates that of PW2 who was explicit that the second accused had inserted his penis in his anus, that is he sodomized him. Therefore, the connection, of the blunt object mentioned by PW3 and the second appellant’s penis is through the evidence of both PW2 and PW3. PW2 gave evidence on oath and is entitled to credence, like every other witness, unless there is a reason to suggest the contrary (see: Goodluck Kyando v. Republic [2006] T.L.R. 369; and Nyakuboga Boniface v. The Republic, Criminal Appeal No. 434 of 2016 (unreported)). Thus, a link between the blunt object and the second 7 appellant’s male organ was well established through the evidence of PW2 and that of PW3. The second ground of appeal is also found wanting and is dismissed. The last ground of appeal is to the effect that the prosecution’s case was not proved to the required standard, that is, beyond reasonable doubt. As submitted by the learned State Attorney the prosecution had a duty to prove that the male organ of the appellant(s) penetrated the anus of the victim and that it was the appellants who committed the act. On the first aspect, as seen earlier when deliberating the previous grounds of appeal, PW2 was able to prove that the appellants forcefully abducted him and whilst the first appellant covered his mouth and tied him, the second appellant went on to sodomize him. PW2’s testimony was direct evidence. PW2 being the victim of the crime provided the best evidence as per Selemani Makumba v. Republic (supra). Moreover, his evidence corroborated by PW1 (his mother) PW4 (his father) who observed his rear and found the same emitting a foul smell and discharge and after PW2 revealed what had befell him, they reported the matter to the police. Likewise, the evidence of PW3 also corroborates PW2’s version of events with regards to being sodomized when he concluded that a blunt object had penetrated PW2’s anus. Thus, the 8 elements of penetration and the identity of the perpetrators was satisfactorily proved. With regards to the role of first appellant, the same falls squarely within the ambit of section 22 of the Penal Code, which provides that: “22.-(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing the namely- (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids or abets another person in committing the offence; (d) N/a. (2) N/a. (3) N/a.” [Emphasis mine]. By being present at the commission of the crime, and acting in concert with the second appellant by blocking the mouth of PW2 and tying him so as to enable the second appellant to sodomize him, he aided and abetted the second appellant and is therefore equally blameful for the offence committed. 9 The argument by the first appellant that the prosecution’s case was weak for failure to bring a teacher to testify that PW3 had gone to school on the material day and the owner of the house to testify that he knew where the keys were being kept does not hold water as the prosecutions’ witnesses, as shown, proved the case to the required standard. Lastly, is the observation of the learned State Attorney with regards to the alleged non-compliance of section 312(2) of the Criminal Procedure Act (the CPA). The appellants were convicted as charged, thus section 312(2) was complied with. In the Court of Appeal decision of Emmanuel Phabian v. The Republic, Criminal Appeal No. 259 of 2017 (unreported) it was held: “Concerning the complaint that the judgment of the trial court did not comply with the provisions of s. 312 (2) of the CPA, which requires the trial court to specify the offence of which and section of the Penal Code or other law under which the accused person is convicted, we also agree with Mr. Kajiru that the complaint is devoid of merit. In his judgment, the learned trial Resident Magistrate convicted the appellant as charged meaning that he was convicted of the offence of rape under ss. 130 (2) and 131 of the Penal Code which the trial magistrate specified at the beginning of the judgment. Thus the fact that the offence and the sections of the law were not restated did not amount to non-compliance with s. 312 (2) of the CPA. - See for instance, the case of Hassani Saidi Twalib v. Republic, 10 Criminal Appeal No. 95 of 2019 (unreported). As found above, although there was omission to cite paragraph (a) of s. 130 (2) of the Penal Code, that did not vitiate the conviction.” In the end, the entire appeal lacks merit and I accordingly dismiss it in its entirety. It is so ordered. DATED at SHINYANGA this 27th day of September, 2024. N.L. MWAKAHESYA JUDGE 11