CHOWO JUDGEMENT

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SONGEA CRIMINAL APPEAL NO. 000015618 OF 2024 JUMA HAJI CHOWO .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT J. M. KARAYEMAHA, J This is an appeal by Juma Haji Chowo, (the appellant) against the decision of the District Court of Mbinga at Mbinga (trial Court) in Criminal Case No. 4949 of 2024, convicting him of the offence of unnatural offence contrary to Section 154 (1) of the Penal Code, [Cap. 16 R.E 2022]. It was alleged by the prosecution that the offence was committed on 10/2/2024 at Hoahoa Street – Mbinga where the appellant had carnal knowledge of a girl aged 8 years (name withheld) against the order of nature. To disguise her identity, I shall henceforth refer to her as ‘PW1 or Victim’. The brief facts of this case are based on the events which occurred on 10/02/2024 when the victim was with the appellant at the Mosque area the place where cookers were manufactured. On that day the appellant was shifting from PW1’s premises where he was residing. He used the wheel barrow to carry and transfer his belongings. Among the children who assisted him, was the victim. After arriving there, the appellant called the victim and pulled her inside the frame keeping the cookers towards the wall. He thereat caused her to bend. According to PW1 the appellant took his penis and inserted into her anus. When he finished, he released her but warned her not to tell anyone or else he would slaughter her. Indeed, the victim left and went to her grand mother PW5, Benadetha Edward Lupogo, but did not disclose what befell on her that night. On that night PW5 heard the victim screaming while in the toilet. It appears she did not pay attention. In the next morning, the victim could hardly stand until assisted. On examining her, PW5 saw pulse oozing from her anus and stinking. Feeling that the victim was sodomized, she probed the victim on who caused. Wrapped in fear, the victim mentioned the appellant. The matter was then reported to police station where she acquired the PF3 and was taken to Mbuyula Hospital. At the hospital the victim was examined by PW3, Elia Makalla, the medical doctor. PW3 found the victim with bruises and fracture in her anus due to being penetrated by a blunt object. He then decided to admit her for four days. He tendered the PF3 as an exhibit. Satisfied those facts established a prima facie case, PW4 WP.3770 D/SGT Anitha Kitosi formed the opinion to charge the appellant in court. Page. 1 Hon.. JAMES KARAYEMAHA When he was offered his right to defend himself, the appellant disconnected himself with the commission of the offence. After a full trial, the trial court found credence in PW1’s evidence and found her a truthful witness. Persuaded, the trial court convicted the appellant and meted a life imprisonment on him. Embittered by the decision of the trial court, the appellant has appealed to this court. The duly filed memorandum of appeal introduces four grounds of appeal which are reproduced hereunder with their grammatical challenges as follows: 1. That the district Court erred in law and in fact in holding that the inconsistencies on the testimony of PW1, PW3 and PW5 as to who committed the offence cast reasonable doubt as to the guilt of the appellant. 2. That the district court misdirected in law and in fact in holding that in shifting his belongings from the house in which the appellant and PW1 lived to the new residence, the appellant the appellant was not accompanied with other children whereas PW1 herself admitted that there were other children too. 3. That the district court erred in law and in fact in shifting the burden of proof from the prosecution to the appellant. 4. That the district court misdirected itself in law and fact in not conducting the voire dire examination required under section 127(2) of the Evidence Act [Cap. 6 R.E 2022] in accordance with the law thereby rendering the entire testimony of PW1 a nullity. In this appeal, the appellant enlisted the services of Mr. Edson Mbogoro, learned advocate whereas the respondent was represented by Mr. Elipidi Tarimo, learned State Attorney. Before I embark on determination of the above grounds of appeal, to state that this Court being the first appellate Court is entitled to revisit the evidence and come up with its own findings, if need be, particularly where there is no evidence to support a particular conclusion, or if it is shown that the trial court has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong. See the cases of Watt v. Thomas [1947] AC 484 when quoted with approval in the case of Peters v. Sunday Post Ltd. (1958) E.A. 424 and Demaay Daat v. Republic, Criminal Appeal No. 80 of 1994 (CAT-unreported). It was established principle of law that, appellate court can interfere with the lower court's decision, where the law has been infracted or wrongly applied. See the cases of Marwa Mahende v. Republic [1998] T.LR. 249 and Adelina Koku Anifa & Another v. Byarugaba Alex, Civil Appeal No. 46 of 2019 (CAT-unreported). It was held by the Court of Appeal in the case of Demaay Daat (supra) on the powers of the appellate Court to review evidence of lower court that; "It is common knowledge that where there is misdirection and non-direction on the evidence or the lower courts have misapprehended the substance, nature and quality of the evidence, an appellate court Is entitled to look at the evidence and make Its own findings of fact." Mr. Mbogoro apart from other things has a misgiving on non-compliance with the provisions of section 127(2) of the Evidence Act [Cap. 6 R.E 2022] by the trial Court. He submitted that while this section requires the child of tender years to promise to tell the truth and not tell lies, the record does not show if the child promised to tell the truth and not to tell lies. To bolster his view, he relied on the decisions in the cases of Godfrey Wislon v. Republic, Criminal Appeal No. 168 of 2018 and Paschal Ndalahwa v. The Republic, Criminal Appeal No. 262 of 2020. As to the consequence of such non-compliance, Mr. Mbogoro held the view that PW1’s evidence lacks Page. 2 Hon.. JAMES KARAYEMAHA evidential value hence should be expunged from the record. He cemented his conviction with the holding in the case of Paschal Ndalahwa (Supra). In his reply submission, Mr. Tarimo commenced by highlighting the rationale of section 127(2) of the Evidence Act as aimed at making sure that the child expected to adduce evidence does not tell nothing but the truth. He then submitted that the case of Godfrey Wilson (supra) and Paschal Ndalahwa (supra) are no longer relevant considering the generality of section 127(2) of the Evidence Act because they were decided prior the amendment of Evidence Act vide the Legal Sector Laws (Miscellaneous Amendment] Act No. 11 of 2023 which introduced subsection (7). Pegging on this subsection, Mr. Tarimo submitted that failure to meet conditions in subsection (2) does not render the evidence of a child inadmissible. He cemented his view by citing the case of George Jonas Lesilwa v. Republic, Criminal Appeal No. 374 of 2020 [2024] TZCA 269 (16 April 2024) TANZLII. The learned counsel was satisfied that by the trial court recording that section 127(2) of the Evidence Act was complied with sufficed to inform that voire dire was conducted. As the issue at hand involves a child of eight years it is imperative that section 127 of the Evidence Act, must be complied with. The record in this case is apparently clear that the trial court did not ask the victim any question. What transpired is quoted for ease of reference as follows: “PW1; MWAJUMA MBUNDA, 8 years, a resident of Manzese, Christian, a pupil and a resident of Kipika Court: this is a child of tender age therefore a procedure under Section 127 (2) of the Tanzania Evidence Act has been complied with.” The typed proceedings of the trial court have revealed the fact that the no inquiry was conducted by the trial Court. Section 127(2) of the Evidence Act provides that: “127-(2) A child of 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.” The plain meaning of the foregoing provision is that while the requirement for a child of tender age to give evidence under oath or affirmation was done away, a mandatory requirement introduced is that he/she has to promise to tell the truth to the court and not to tell any lies. I have vividly observed the record in comparison with section 127(2) of the Evidence Act. In my considered view, it easy to grasp that section 127 (2) was complied with when the record by itself unveils that the child was recorded in his own words. It is hard to understand if at all the child made any promise if the record is silent. On this observation, I agree with Mr. Mbogoro that the trial court flirted into an error. Apart from that, it is a trite law that where the evidence of the child of tender age is credible and reliable the court has to consider it and, the court shall not expunge it simply because there was a mere omission on the compliance of section 127(2) of the Evidence Act. The position came in our legal regime with the amendment of Evidence Act vide the Legal Sector Laws (Miscellaneous Amendment] Act No. 11 of 2023 which introduced subsection (7) which provides that: Page. 3 Hon.. JAMES KARAYEMAHA “Notwithstanding any other law to the contrary, failure by the child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible.” This position has been recently particularized by the Court of Appeal of Tanzania in the case Wambura Kiginga v. Republic (Criminal Appeal 301 of 2018) [2022] TZCA 283 (13 May 2022) TANZLII and George Jonas Lesilwa (supra). In this case I am fully convinced that the victim did not promise anything, but in my opinion for her not to promise to tell the truth or lies doesn't necessarily mean that she lied throughout her testimony. It is also my deep thinking that the trial Court had a duty to guide her. At her age, she needs a well-versed lawyer to educate her on what the law requires her to do. Leaving the details aside, in Wambura’s case the Court of Appeal declined to expunge the evidence of the child of tender age from the proceedings relying on section 127(6) of the Evidence Act, looked into the entire evidence of the child and the appellant, upon being satisfied with the evidence of the child at page 10 of the judgment, the Court stated that: “In this case we are fully convinced, that although the child did not promise to tell the truth, what she narrated was original, true and authentic.'' What is gleaned from the above observation of the decision of the Court of Appeal is that the most important thing to be considered is the truthfulness and authenticity of the evidence and of course the reliability of the evidence of the child and not the mere promise. This goes in line with the credibility of the witness, that is, the child of tender age. The Court went ahead at page 14 stating that: “In the circumstances of this case, we think, as indicated a while ago, that substantive justice needs to be done even in favour of children of tender age, who while giving evidence, every circumstance, like in this case, suggests that they told the truth and not lies, even if they might not have taken oath or affirmation or promised to tell the truth and not lies in compliance with subsection (2) of section 127 of the Evidence Act.” In my considered view this is the intention of the Parliament when it added subsection (7) to section 127 of the Evidence Act. In order to accommodate all that, I find the principle in Wambura’s case lucid and we can draw inspiration from it. The Court laid down the key guiding principles in dealing with evidence of the child of tender age. More specifically the Court observed at page 15 that: "First, that there must be clear assessment of the victim's credibility on record and; second the court must record reasons that notwithstanding non-compliance with section 127(2), a person of tender age still told the truth." The other principle of law I find relevant to this appeal, is that in sexual related trials, the best evidence is that of the victim as per the decision in Selemani Makumba v. R, [2006] TLR 379. However, I am well guided that the position of law is just general, it is not to be taken wholesale without considering other important points like credibility of the prosecution witnesses, reliability of their evidence and the circumstances relevant to the case in point. See the decisions in Shabani Daudi v. R, Criminal Appeal No. 28 of 2000 and recently in Pascal Yoya Maganga V. R, Criminal Appeal No. 248 of 2017 (both unreported). In this case, since at the time of the alleged offence the victim was alone, it is critical that her credibility is faultless, faultless and her evidence completely Page. 4 Hon.. JAMES KARAYEMAHA reliable. In this case I am fully influenced, that although the victim did not promise to tell the truth, what she narrated was original, true and authentic. I will now proceed to the evidence particularly of the victim, PW3, PW5 and that of the appellant. Testifying as PW1, the victim stated: “On 10/02/2024 babu Juma went to take a wheel barrow to park his belongings to the place where they use to manufacture cookers at the frames of Msikitini and I went with him to the place. When we arrived at the place (msikitini) babu Juma called me and pulled me inside the frame keeping the cookers towards the wall and asked me to bend before he took his penis and inserted into the place I used to poo, at the moment I had no clothes, they were on the floor. I felt pain when he inserted his penis though a bit it was painful, it was about 20 hrs and the electrical bulbs were shining from the outside and the light assisted me to see even the cookers kept thereof. We were only two of us me and him (babu Juma), and when he finished up he told me to go home and he threatened me not to tell any one at home else he would slaughter me up. From there, I went home but I didn’t find mom at home so I went at my grandmother’s place and slept thereat. In the morning my grandmother inspected me at my private parts and I told her that babu Juma did inserted me with his penis after that she told me that we had to go to Mbuyula so we went and later on babu Juma was arrested.” Responding to the appellant during cross examination, the child indorsed that: “I don’t remember the other persons (three) and I also don’t remember the other persons who were there when we were elevating the belongings from the barrow, but all the said persons were not there when the accused person was pulling me inside the room.” After the beast act was done and PW1 warned not to say anything, she went to PW5, who witnessed the agony the victim went through. PW5 stated further that: “... on 10/02/2024 I was at home and during the night of the stated date she came at my house and she was not able to sit properly on a chair and she said she was not sick. Later on, she went to the toilet but she screamed as she wasn’t able to poo, after that she went to sleep. When she wake up in the morning she could not stand up on herself, and when she asked us to go to the toilet and we assisted her but when she removed clothes, I saw some pulse coming from her anus and the same was stinking, we suggested that she was sodomized and when we asked her she said that someone did it to her but she was afraid to mention his names as she was afraid of being harmed, but when we insisted she said it was Juma and I don’t know the said Juma, PW1 said that the said Juma resided at Manzese.” PW3, the medical doctor stated as follows: “I took the patient’s history where she said that she was sodomized by a man named Juma and the conducted examination upon her. I discovered that she sustained serious pain and she was not able to poo as she had bruises and fracture three times at her anus. Having so discovered, I had to admit her in the ward and started to administer medication upon her for four days. The fractures were caused by a penetration of a blunt object, I also filled a PF3 which I can identify as it bears my names, signature and an official stamp as well as PW1’s details.” Page. 5 Hon.. JAMES KARAYEMAHA When the appellant was invited to defend himself, he unconcernedly put his defence on a serious case as follows: “The prosecution side condemns that the event was committed near the mosque while I am living at Hoahoa street and all the witnesses are not eye witnesses. On the material date I was at home where I am living the same house with PW1’s mother and I slept in the same house, so I wonder was I able to sodomize the said girl while I was all the time present in my living house.” I cannot scan a serious denial of committing the offence from the appellant’s evidence in chief. Responding to the public prosecutor’s cross-examination, the appellant explained more on how he lived with the victim’s mother and ferrying his belongings to the frame located at the Mosque. He stated that: “No witness has mentioned me as the one who has sodomized the victim and she said that I was the one who committed the said offence. She said that we were only the two of us. I wonder because I was not in the alleged scene of crime, I was at home. I am older than PW1 and I have no conflict with her at all. On the material date I didn’t go anywhere I had the duty to transfer my belongings to the mosque frame and I did such task on myself.” Having all the material evidence at disposal, I maintain the view that although the victim did not promise to tell the truth but, she told the truth anyway. My firm view is inferred from the following circumstances; first, that the appellant was not a stranger to the eyes of the victim as they were living in the same house being the tenants. Thus, it was easy to identify him at the scene of event especially considering that the scene was said to have enough light outside the room illuminating inside. Second, in her evidence in chief above, the victim was sincere, where the appellant was responsible, she stated it. She did not blame the appellant on any other aspect of his obligations. For instance, she stated that, it was the appellant who was ferrying his belongings using a wheelbarrow, where he took them, where he lived and also, that, the appellant had no any other problem except the act of sodomising her in the room used to keep cookers. Third, PW1 was consistent even during cross-examination as she maintained that it was the appellant who sodomised her. Fourth, that there was no conflict between the victim and the appellant or her parents therefore there was no way for the appellant to be framed of the charges herein. Fifth, the appellant never disputed any part of the victim's evidence before the trial court. and; sixth, the appellant's defence evidence complemented that of the victim as he stated that he had the duty to transfer his belongings to the mosque frame and did such task. Thus, by any standards, the defence evidence was unable to effect a minute shake up to the solid prosecution case. All said and done, I find no merit in the fourth ground of appeal. The second ground of appeal introduces a complaint that there are glaring inconsistencies on the testimony of PW1, PW3 and PW5 as to who committed the offence. Regarding the evidence of PW1, Mr. Mbogoro submitted that she mentioned Babu Juma. He charged further that PW3 and PW5 testified that PW1 told them that she was sondomized by Juma not Babu Juma. Basing on that contention, the counsel invited this court to find that Babu Juma and Juma are two different names and that considering the seriousness of the offence the inconsistence was not minor. Mr. Tarimo threw cold water on this contention. He premised his submission on two points. First, that the appellant failed to cross- examine PW1. Therefore, the complaint is an afterthought because he never challenged during the trial that Babu Juma was not his name. Second, moving forward but without specifically addressing himself on the evidence, Mr. Tarimo submitted further that, PW1 addressing the appellant as Babu Juma was the Page. 6 Hon.. JAMES KARAYEMAHA way he appeared given the fact that PW1 was only 8 years and the appellant 50 years. Relying on the case of Issaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 (29 April 2016) Mr. Tarimo concluded that the identification was reliable as at all times the appellant was referred to as Juma regardless of the prefix “Babu.” Rejoining, Mr. Mbogoro maintained that Juma and Babu Juma are two distinct names. He held the view that the seriousness of the offence is what makes this inconsistence substantial. Indeed, a digestion of PW1’s evidence clearly shows that the ravisher was Babu Juma on 10/02/2024. PW2 simply identified Juma in the accused’s dock. As per PW5’s evidence, PW1 told her that she was sodomized by Juma. Quite clearly, as submitted by Mr. Mbogoro, two names were mentioned. They might be belonging to two different people. However, A reflection on the whole evidence converges to a singular conclusion that Babu Juma and Juma is the same person and it is the appellant. I am strengthened by the evidence with respect where the appellant resided, where he ferried his belongings to, names of the street and the peculiar building, that is the mosque. All these were certain in PW1’s evidence and in the appellant’s evidence. Without much ado, I am destined to conclude that though there are two names mentioned, this discrepancy is cleared by strong evidence which upon reflection points to non-other than the appellant. In the end, I dismiss ground one. Next on line is the complaint enshrined in ground two is that the trial court misbelieved PW1 who testified that in shifting his belongings from PW1’s premises, the appellant was accompanied by other children. Instead, it held that he was not. I have glanced through the trial court’s judgment. I am inclined to agree with parties’ counsel unanimous view that the trial court erred in holding so. However, it is PW1’s evidence that when the sodomy act commenced, other people were no longer at the scene of crime. As the record which loudly speaks for itself, even if the trial court had held that in shifting and ferrying his belongings, the appellant was assisted by PW1 and other people, in my respectful view, this would not be the reason to conclude that her credibility and reliability was questionable. Gauging if parameters of credibility and reliability of PW1 were met, I have taken the prosecution’s testimony in its totality and I am satisfied that the evidence is sufficient, cogent and credible. Above all, it is worth noting that it is now a settled law that in sexual offences the best evidence comes from the victim. This is because she was the one who felt what was inserted in her body and what transpired prior and after the ordeal. See Selemani Makumba v. The Republic 2006 [TLR] 379 and Paul Dioniz v. The Republic, Criminal Appeal No. 171 of 2018, CAT-DSM. Reviewing the testimony of prosecution’s witnesses, I spot facts that meet the requirements of credibility set out in the cited cases. I am, therefore, not persuaded by the appellant’s complaint in this ground. Finally, is the complaint that the trial court shifted the burden of proof from the prosecution to the appellant. What prompted this ground is that the trial court in its judgment found it imperative for the appellant to call witnesses that in shifting his belongings he was assisted not only by PW1 but by other people too. Indeed, the appellant had no such duty because a cardinal principle is that the burden is on the prosecution to prove beyond reasonable doubt that the appellant committed the offence, this means that he sodomized the victim. It is not upon him to prove his innocence or even that the victim was sodomized by someone else except where the law expressly provides so. It is the law of our land that in cases of this nature the accused can only be convicted of the offence on the basis of the Page. 7 Hon.. JAMES KARAYEMAHA strength of the prosecution case and not on the basis of the weakness of the defence case. Even suspicions, however ingenious or strong can never be a basis of a criminal conviction or a substitute for proof beyond reasonable doubt. This is equally true even where an accused person is proved to have told lies either in Court or prior to that in connection with the facts in issue. See R v. Kerstin Cameroon [2003] TLR 105. In this case, although the trial was not warranted to reach to that conclusion, it is vivid that the prosecution case was proved beyond reasonable doubt. In considered view, the appellant can not benefit on the error committed by the trial Magistrate. In the event, I find the appeal devoid of merit. Consequently, it is hereby dismissed. It is so ordered. Dated at SONGEA ZONE this 20th of September 2024. J. M. KARAYEMAHA, J JUDGE OF THE HIGH COURT Page. 8 Hon.. JAMES KARAYEMAHA