JOHN SAMSON

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 28 OF 2023 (Originating from the conviction and sentence of the District Court of Singida in Criminal Case No. 44 of2023) JOHN SAMSON........................................................................ APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT JUDGMENT Date of the last Order: 10/6/2024 Date of the Judgment. 29/8/2024 KHALFAN, J. John Samson (henceforth the appellant), was charged before the district court of Singida (hereinafter referred to as the "trial court") for one count of grave sexual abuse contrary to section 138C (l)(a) and 2(b) of the Penal Code [Cap 16 R.E 2022]. The allegation which confronted the appellant as stipulated in the particulars of the charge was to the effect that, on 16/4/2022, at Unyankae Mandewa Ward, within the district and region of Singida, the appellant did sexually abuse a child of 3 years by forcibly using his penis to ejaculate in his pair of trousers an act which caused sexual annoyance. For the purposes of concealing her identity, I shall refer to the child as PW1 or simply the victim. i In the attempt to substantiate its case, the prosecution paraded four witnesses and tendered four exhibits. The appellant was the sole witness for the defence. A brief factual background underlying the instant appeal, as could be gathered from the record is that, on 16/4/2022, while the victim was outside playing, PW2 (the victim's mother) was cooking. PW2 later, got out and found the victim sitting on the appellant's thighs. She rushed and took the victim from the appellant whereby she found the appellant's penis was out and he had already ejaculated. PW2 shouted for help in which PW3 (the victim's father came). According to PW3, he found the appellant standing up zipping in his pair of trousers and he had already ejaculated. PW3 arrested the appellant and took him to the police station where he was issued with PF3. PW4 (a police officer) recorded the appellant's cautioned statement. According to PW4, the appellant confessed that he attempted to rape the victim. PW4 tendered the appellant's cautioned statement as exhibit P4. In his defence, the appellant flatly denied to have committed the offence at hand. He testified that he was just passing by only to be called a rapist. 2 After full trial, the trial court was satisfied that the case against the appellant was proved to the standard required. It convicted and sentenced the appellant to twenty years imprisonment. The appellant was also ordered to compensate the victim at the sum of TZS 500,000/=. The appellant was displeased with the conviction and sentence meted out against him; hence he preferred the instant appeal with 12 grounds of appeal which can be summarised and reduced to six grounds as follows: 1. That the trial court erred in law in convicting the appellant while the victim stated that the culprit was not before the court. 2. That the victim's evidence was improperly received. 3. That, the prosecution did not call material witnesses who were at the scene. 4 That the trial court erred in relying on the evidence of PW2 and PW4. 5. That, there were contradictions between the evidence of PW1 and PW2. 6. That the appellant was convicted due to the defence weakness and not on the strength of the prosecution. It is on record that the appeal was argued by way of written submissions. The appellant was represented by Ms. Grace Benny, learned advocate while the respondent was represented by Ms. Zubeda Lyaumi, learned state attorney. In her submission in support of the appeal, the learned advocate for the appellant argued only the 2nd, 3rd and 6th grounds of appeal and abandoned the other grounds. In her submission in support of the 2nd ground of appeal, the learned advocate for the appellant argued that, the trial court did not conduct any procedure as to determine whether the victim was knowledgeable to differentiate what is truth and lies. She submitted that making a witness of tender age to promise to tell the truth is an exception to the general rule provided under section 198 of the Criminal Procedure Act [Cap 20 R.E 2022], (hereinafter referred to as the "CPA"). The learned advocate argued that, the trial court should have complied with section 127 (1) and (2) of the Evidence Act [Cap 6 R. E 2022], (hereinafter referred to as the "Act") by putting questions to the witness in order to test if she was capable of telling the truth. She argued that such omission by the trial court was a fatal irregularity. Therefore, the 4 evidence of PW1 should be expunged from the record. To buttress her argument, the learned advocate referred to the case of Dora Juma vs. The Republic DC Criminal Appeal No. 17 of 2021 (unreported). Submitting on the 4th ground of appeal, the learned advocate argued that the prosecution did not call the victim's friends who were playing with her on the material date to support the prosecution's case. She argued that, failure to call the victim's friends created a lot of doubts on the prosecution's case. As to the 6th ground of appeal, the learned advocate submitted that, the trial court convicted the appellant while the prosecution did not prove the case beyond reasonable doubt. She argued that the victim did not identify the appellant properly and there was no identification parade conducted. She submitted that the victim's age was not proved as required by section 138C (2) (b) of the penal code and that the prosecution did not tender birth certificate to prove the age of the victim. She therefore urged the court to allow the appeal and the sentence meted out against the appellant be set aside. In reply to the 2nd ground of appeal, the learned state attorney argued that, the requirement to conduct a voire dire test was removed 5 through the written Laws Miscellaneous Amendment) No. 2 of 2016 and it was replaced with the requirement that a child of tender age is required to promise to tell the truth to the court and not lies. To buttress her argument, the learned state attorney referred to the case of Godfrey Wilson vs. The Republic Criminal Appeal No. 168 of 2018 (unreported). She argued that in the instant matter, the victim promised to tell the truth. Hence, her evidence was properly received and corroborated by the evidence from PW2 and PW3. In reply to 4th ground of appeal, the learned state attorney further argued that there is no law requiring a particular number of witnesses in order to prove a certain fact. She referred to section 143 of the Evidence Act [Cap 6 R.E 2022], (hereinafter referred to as the "Act"] and the case of Kennedy Owino Onyachi and others vs. The Republic Criminal Appeal No. 48 of 2006 [2009] TZCA. In reply to the 6th ground of appeal, the learned state attorney argued that, the prosecution duly proved the case against the appellant to the standard required. She submitted that in order to establish the offence of grave sexual abuse, it must be proved that there was use of any part of human body for sexual gratification. The learned state attorney contended 6 that PW1 in her evidence, stated that, the male person used a finger and raped her on the anus the fact which is corroborated by the cautioned statement. She submitted that although the victim failed to identify the appellant before the trial court; it does not erode her credibility since the appellant was arrested at the scene of the crime zipping in his pair of trousers. The victim's evidence was corroborated by that of PW2 and PW3. She averred that although the victim's age was not proved, the trial court's proceedings reveal that the victim was a child of 3 years. The learned state attorney pointed out that the appellant's evidence did not cast doubt on the prosecution evidence. Thus, she urged the court to dismiss the appeal. Having gone through the parties' rival submissions and the record of the trial court, I will now proceed with the determination of the grounds of appeal. In the 2nd ground of appeal, in which Ms. Grace faulted the trial court for not complying with the law regarding the reception of the evidence of a child of tender age, I have gone through the trial court's record; it is revealed that before the victim had testified, she was asked as to what she promised the court. She replied that, to say truth and only truth. The 7 learned advocate maintained that there was no any procedure conducted to determine whether the victim was knowledgeable enough to differentiate between lies and truth. As correctly argued by the learned state attorney, the requirement that before a child of tender age testifies, he/she must promise the court to tell truth and not lies. In the case of Godfrey Wilson vs. The Republic, (supra) the Court of Appeal observed thus: "...where a witness is a child of tender age, a trial court should at the foremost, ask few pertinent questions so as to determine whether or not the child witness understands the nature of oath. If he replies in the affirmative there, he or she can proceed to give evidence on oath or affirmation depending on the religion professed by such child witness. If such child does not understand the nature of oath, he or she should, before giving evidence, be required to promise to the tell the truth and not to tell lies." From the above decision, it was pointed out that before the child of tender age testifies, the court is required to at least ask a few pertinent 8 questions to determine if the child understands the nature of oath. If he/she does not understand the nature of oath, he/she is required to promise to tell the truth and not to tell lies. In the instant matter, the record does not indicate if there were pertinent questions asked by the learned trial magistrate; rather, there is only one question as to what the victim was promising the court. Since the victim replied that she would tell the truth, I am satisfied that there was substantial compliance with section 127 (2) of the Act. The learned advocate did not dispute the fact that the victim promised to tell the truth. Rather, she challenged the procedure to determine if the victim was knowledgeable enough to differentiate between truth and lies. The provision of section 127 (2) of the Act does not require the court to conduct inquiry to determine whether the child of tender age is capable of distinguishing between truth and lies. Rather, the witness has to promise to tell the court the truth and not lies. Since, as I have pointed above, the promise came from the victim herself. Hence, there was compliance with the law. It is for that reason that I find the 2nd ground of appeal lacking in merits and same is dismissed. As to the 4th ground in which the learned advocate faulted the prosecution for not calling the material witnesses, it is on record that, the victim testified before the trial court that on the fateful date, she was playing with her friends. It is also on record that none of the said friends were called to testify. The appellant's advocate did not state how such failure to call the victim's friends vitiated the prosecution's case. As correctly argued by the learned state attorney, there is no specific number of witnesses required to establish a particular fact. After all, the best evidence in sexual offences is that of the victim. Thus, in sexual offences like the one at hand, the evidence which is mostly considered is that of the victim. Therefore, I find the 4th ground of appeal lacking in merits and the same is dismissed. As to the last ground of appeal, since the parties locked horns as to whether the case against the appellant was proved, this court is tasked to re-evaluate the evidence on record to see whether the case against the appellant was proved. I have keenly gone through the record, starting with the charge which formed the basis of the appellant's prosecution, which alleged that the appellant committed grave sexual abuse by forcibly using his penis to 10 ejaculate on the victim's clothes. Moreover, I have seriously considered the particulars on the charge and the evidence adduced by the victim; the two differ significantly. While the charge, as I have pointed out above, alleges that the appellant just ejaculated on the victim's clothes, the victim's evidence as captured from the record shows that, the man who she did not remember, inserted a finger in her anus. The learned trial magistrate readily noted this discrepancy and observed that due to the victim's age, she could not remember what happened to her. He was therefore satisfied that there was evidence which corroborated the victim's evidence. He referred to the cautioned statement and the evidence of PW2 and PW3 as corroborative evidence to the victim's evidence. With respect, having carefully considered both pieces of evidence on record, I could not find evidence to corroborate the victim's evidence. While the victim testified that the fingers were inserted in her anus, the evidence of PW2 and PW3 as well as the cautioned statement, narrates about ejaculation by the appellant on the victim's clothes. This is a material contradiction which goes to the root of the matter. 11 It is settled law that where the evidence adduced differs from the charge, the prosecution bears the duty to amend the charge so that it can tally with the evidence adduced. I find that the contradiction on the evidence adduced by the victim and that of the PW2 and PW3, goes to root of the matter and therefore, the prosecution case crumbles. Consequently, basing on the above brief discussion, I find that the case against the appellant was not proved to the standard required. I therefore find the appeal meritorious. The conviction and the order for compensation meted out against the appellant are hereby quashed and the sentence set aside. I order the appellant's immediate release from the prison unless lawfully held. It is so ordered. Delivered at Dodoma this 29th day of August, 2024. 12