Justin Jafari alias Khalid alias Moleli v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 24162 OF 2024 (Originating from Criminal Case No. 155 of 2023 of Babati District Court at Babati) JUSTIN JAFARI alias KHALID alias MOLELI………………................APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT JUDGMENT 22nd October and 5th December 2024 MIRINDO J.: A nursery school boy was, on 21 September 2023, left home alone at Sangaiwe Village in Babati District within Manyara Region. When he saw Justin Jafari alias Khalid alias Moleli aged 36 years old, coming, he ran away, pricked by a thorn and Justin caught him. He brought him back to their kitchen and sodomised him. His older brother, IWA, appeared at the scene and found Justin sodomising the child victim. Justin ran away and IWA went to trace their mother who was at the river washing clothes. The river was not very far from home. She raised alarm and people responded. Justin, found hiding in a bush, was arrested, brought to Magugu Police Post and subsequently charged before Babati District Court with unnatural offence contrary to 1 section 154 (1) (a) and (2) of the Penal Code [Cap. 16 R.E. 2022]. He was convicted and sentenced to life imprisonment. The appellant, Justin Jafari, has appealed to the High Court against his conviction and sentence on eight grounds including his additional ground. At the hearing of the appeal, the appellant appeared in person and presented his written submission in support of the appeal. The respondent Republic was represented by Ms. Anifa Ally and Ms. Mwanaidi Chuma, learned State Attorneys. The appellant sought leave of the Court to withdraw the third and fifth grounds of appeal and to add one ground of appeal. The first ground of appeal essentially encapsulates the appellant’s complaints and the rest of the grounds will be addressed from this light. The complaint in the first ground of appeal is that the charge against him was not proved beyond reasonable doubt. Ms. Ally, learned State Attorney asserted that the charge was proved beyond reasonable doubt. This is a first appeal and this Court is duty-bound to re-evaluate the evidence and make fresh findings. The key prosecution witnesses are the victim who testified as the second prosecution witness and his brother, IWA who was the fifth prosecution witness. The victim’s child was the second person to testify for the prosecution but he was not indicated in the proceedings as the second prosecution witness and mistakenly recorded the Assistant Medical Officer as the second prosecution witness. In the fourth ground of appeal, the appellant contends that there was no clear proof of the victim’s age. In the charge the age is stated to be eight and when the victim testified, he said, 2 he was four years old. In response, Ms. Ally pointed out that a reference to four years of age was a slip of the pen because the victim’s child stated that he was eight years when the trial court was recording his particulars. The learned State Attorney observed that the age of eight years was also mentioned by the victim’s mother. The victim’s mother is the appropriate person to prove the victim’s age. There is no doubt that the victim’s age is below 18 years. The learned State Attorney observed that it is a legal position that the victim’s age may be proved by the victim herself, parents or relatives of the victim, doctor or birth certificate of the victim as echoed in Simon Malembeka v R (Criminal Appeal No. 298 of 2020.) [2023] TZCA 17705. As the victim’s mother stated the age of the victim’s child to be eight years, it is clear that the victim’s age was proved. As correctly pointed out by Ms. Ally, the child’s age may be proved by evidence of parents or relatives of the victim, doctor or birth certificate of the victim as was held in the case she cited. It is worth pointing even if I am to agree with the appellant’s complaint that the victim’s child was either four or eight years, the variation still falls below eighteen years and is a non-starter. Additionally, in cross-examination, the appellant conceded that the victim was a child. In his additional ground of appeal, the appellant criticised the trial court for believing the testimony of the victim’s child without serious examination. The appellant added that the testimony of the victim’s child was not weighed against the testimonies of other prosecution witnesses. The appellant noted that the prosecution witnesses gave contradictory evidence and the victim’s child was immature and there is a possibility that he gave manufactured evidence to frame the appellant. In support of 3 this complaint, the appellant referred to the principle restated in Mohamed Said v R (Criminal Appeal No 145 of 2017) [2019] TZCA 252 that the victim’s testimony is not gospel truth. In opposition, the learned State Attorney maintained that the charge was proved beyond reasonable doubt. The victim child proved sodomy and according to the leading of case of Selemani Makumba v R [2006] TLR 307, the victim of a sexual offence is the best witness. She added that the victim’s evidence was corroborated by the testimony of his brother (the fifth prosecution witness) who was also an eye-witness. Ms. Ally highlighted that eye-witness’ account is a strong evidence as was held in Joseph Mkumbwa and Another v Republic (Criminal Appeal 94 of 2007) [2011] TZCA 118 . The learned State Attorney made reference to the testimony of the Assistant Medical Officer who examined the victim child, discovered several things on the victim’s anus and concluded that the victim child was sodomised. Ms. Ally concluded that the victim’s child mentioned the appellant as the one who sodomised him and was able to identify him at the dock. In Mengi Paulo Samweli Luhanga and Another v R, Criminal Appeal 222 of 2006, the Court of Appeal reaffirmed that eye-witness is a vital piece of evidence in the determination of the accused’s guilty or innocence. The victim who was a child of tender age promised to tell the truth narrated how the appellant came to their home, how he tried to run but failed after treading on thorns, how the appellant caught him and brought him to their kitchen and undressed 4 him, and sodomised him. Expressing the sodomy act in Kiswahili in the child’s language, the victim said that the appellant inserted “dudu lake la kukojolea matakoni kwangu…akanifanyia tabia mbaya”. He expressed the pain he suffered and said in Kiswahili: “Nilikuwa nimechanika kwenye matako.” These expressions have since the leading case of Hassan Bakari alias Mamajicho v. R , Criminal Appeal No. 103 of 2012 consistently reaffirmed, more prominently in Joseph Leko v R (Criminal Appeal No. 124 of 2013) [2013] TZCA 327 and Hassan Kamunyu v R (Criminal Appeal 277 of 2016) [2018] TZCA 259, as denoting penetration. That the victim anus was sexually penetrated and was teared was a fact duly corroborated by the testimony of the third prosecution witness, Chizua Tabu Mbijima, Assistant Medical Officer at Magugu Health Centre where the victim was taken for treatment. Again, there is the testimony of the victim’s mother, the first prosecution witness that she returned home and found the child defecated on himself. IWA, the brother of the victim’s child was an eye-witness and he testified as the fifth prosecution witness. In the second ground of appeal the appellant contends that the IWA was unreliable witness who gave implausible accounts. On the one hand, he said that 21 September 2023 was a day he completed Standard Seven. On the other hand, he said that on 21 September 2023 he was looking after cattle and returned home around two in the afternoon. The learned State Attorney, Ms. Ally disagreed that there were no implausible accounts because IWA was an eye-witness and that his evidence was corroborated by the testimony of the victim child. She concluded that the 5 trial magistrate saw the witness testifying and was best situated to determine his credibility and believed him, and so the complaint had no merit. I have closely examined the testimony of IWA and it is indeed recorded that “I completed Standard seven on 21/09/2023”. This statement means that was the final date he completed Standard Seven exams or by that date IWA had completed Standard Seven. Given the way in which the trial magistrate struggled to record the proceedings in English language with Kiswahili interpolations, I hold that this was a recording error. Part of the appellant’s complaint in the first ground of appeal is that there was a conflicting testimony regarding the means IWA used to go to the river to inform their mother about the sodomy. The mother explained that IWA came by a bicycle while the victim’s child said that IWA ran towards the river. These are indeed the accounts provided by both the victim’s mother and the victim child. While the expression that IWA ran away to the river to inform the victim’s mother about the incident tend to suggest that he went on foot, I do not find this variation as raising serious doubt to the prosecution case. All the three witnesses, namely, the victim’s child, the victim’s mother, and the victim’s brother (IWA) are consistent that IWA went to the river and revealed the incident to his mother, the first prosecution witness. The appellant contended that the prosecution evidence was incomplete as neighbours were not called but it was the victim’s mother who was far in the river that was called. This complaint appears from the testimony of IWA on being cross-examined 6 by the appellant. IWA, the fifth prosecution witness, replied that they had neighbours but he was unable to call them. In these circumstances, I am of the opinion that it is natural for a child to reveal sensitive information to his or her mother than a neighbour where the mother can be easily reached. I hold that this complaint has no merit. The appellant further contended that there was no clear evidence on how the appellant was arrested given that it is said that he had hidden around the bush. The victim’s mother raised an alarm and people started looking for him without first assuring themselves that sodomy had taken place. It is doubtful if he really committed the offence. Where there is reasonable suspicion that a crime has been committed civilians are under legal duty to assist arresting a suspect and then surrender him or her to the nearest police station, ward executive secretary or village leaders or any other Justice of the Peace in terms of sections 14 and 31 of the Criminal Procedure Act [Cap. 20 R.E 2022] as well as the provisions relating to Justices of the Peace under Part VI of the Magistrates’ Courts Act [Cap. 11 R.E. 2019]. Whether the crime was actually committed and who actually committed becomes then a matter of police investigation. In the instant case, the appellant was a person known to the victim’s family for he said in cross-examination that the victim’s mother was his neighbour. He was found around the bush when people set out to trace him after the victim’s mother had raised an alarm. These were people who were offering help and issue of commission of sodomy was one for police investigation which included sending the victim’s child for 7 medical examination to Magugu Health Centre and collection of witness statements as was done by G.1574 Detective Corporal Donald, the eighth prosecution witness. Another conflicting testimony is in relation to the person who inspected the victim’s child after the sodomy. The sixth prosecution witness, Michael Beda, testified that the Chairperson ordered him along with Pendo Jacob, (the victim’s mother) to go inside to inspect the victim’s child but the fifth prosecution witness, Anastazia John told the Court that it is the victim’s father who inspected the child. This complaint argued as part of the first ground of appeal was repeated in the sixth ground of appeal. The testimony of Anastazia John, the sixth prosecution witness, is that it is victim’s father, the seventh prosecution witness, who inspected the child and found out that he had defecated on himself. It is not clear from the testimony of Michael Beda that he inspected the victim’s child but his testimony suggests that the victim’s mother, Pendo Jacob was the one who undressed him. It does appear from the testimony of the victim’s mother, the sixth prosecution witness, and the victim’s father, that all of them were around when the victim’s mother returned from the river to see what begot her child. So long as there is evidence from the victim’s himself, his brother, IWA and the Assistant Medical Officer about penetration of the victim’s anus and tearing in anus the identification of the person who actually inspected the victim is inconsequential. Another complaint by the appellant is that Chizua Tabu Mbijima, Assistant Medical Officer, the third prosecution witness, who examined the victim’s child gave hearsay evidence regarding the time the sodomy is believed to have taken place. 8 Further complaints are set forth in the sixth ground of appeal. The appellant contended that the third witness account that the sodomy took place three hours after the victim’s child was taken to Magugu Health Centre is inconsistent with the testimonies of the victim’s mother. The appellant stated that the victim’s mother told the trial court that IWA informed her mother about the sodomy around two in the afternoon. The appellant contended that the Assistant Medical Officer testified that the victim’s child who was brought to the Health Centre at five in the evening told him that the sodomy took place three hours after being brought to the Health Centre. The appellant concluded that this means that the incident took place at eight in the night. Implicitly, the appellant intended to show that the act never took place as claimed by the prosecution. It is clear from the Police Form No 3 that the victim child was brought to Magugu Health Centre at “1700 HRS” but in in cross-examination Chizua Tabu Mbijima the Assistant Medical Officer is recorded as stating: According to information from victim the incident happened three hours after he reached Hospital (Health Centre) …… This account is of course inconsistent with the rest of the prosecution evidence and the testimony of Chizua himself. In examination in-chief he narrated how he was informed about the sodomy before going on to perform medical examination. I am of the opinion, as stated earlier, that the trial magistrate struggled to record the proceedings in both English and Kiswahili. I have every reason to believe that this too was a recording error. That this was is borne out by the fact the Police Form No 3 was issued 9 on the assumption that an offence has been committed. The police officer, one Lightness, and the victim’s mother took the victim’s child to Magugu Health Centre believing that he had been sodomised. As part of the first ground of appeal the appellant argues that the Assistant Medical Officer was unable to examine the victim child because he was feeling a lot of pain in the anus. It is true that in his testimony he said that he failed to conduct medical examination inside the anus to establish if there were semen because the victim felt a lot of pain. For this reason, the appellant called upon this Court to rule that the medical examination was incomplete and there was no proof of sodomy. Under section 154 (1) (a) of the Penal Code unnatural offence consisting of having carnal knowledge against the order of nature. The expression “carnal knowledge” refers to sexual intercourse which is a physical sexual contact involving penetration. There is no reason for the principle enacted in section 130 (4) in connection with rape cases that penetration however slight constitute sexual inter course not to apply to unnatural offences. The presence or absence of semen in the child’s anus was irrelevant so long as there is proof of penetration from the medical examination report and the victim’s child and his brother. In the seventh ground of appeal, the appellant complains that the trial court did not seriously consider his defence. The appellant’s claim that the victim’s mother owed him and he had given the victim’s mother his phone was not considered by the trial court. 10 It was the argument of Ms. Ally, learned State Attorney, that the appellant’s defence was duly taken into account and disbelieved as it did create doubts in the prosecution case. In the alternative, she argued that if this Court rules that the defence was not considered, it should step into the shoes of the trial court and consider his defence. The trial magistrate referred to the appellant’s defence about money debt and rejected it without commenting on it. In his defence the appellant said the day before the incident he spoke to the victim’s mother, gave him his phone and that she owed him some money. When he asked her about the money, she told him to wait but he could not wait. She told him to see her the next day at her home. The next day he went to see her but did not find her and left. On appellant’s returning, she told him in Kiswahili that “mtoto wangu lazima atakufunga.” It is the appellant’s argument that he was framed. I find the appellant’s defence somewhat startling. There are no details about the phone and the money he lent to the victim’s mother. The amount given and the conditions under which he lent the money is unknown. Interestingly, the accused cross-examined all the prosecution witnesses save for the victim’s mother. The inference here is that the appellant’s account is unfounded. The appellant said that the first time he went to see the victim’s mother he found the victim’s neighbour who was a pastor and struck conversation with pastor’s wife and then went to another person whose name he could not remember. None of these 11 persons were positively identified by the appellant given that the appellant admitted that the victim’s mother was his neighbour. In Speratus Theonest alias Alex v R, Criminal Appeal 138 of 2005, the prosecution listed seven witnesses at the preliminary hearing but called only five of them. It was contended on appeal the failure to call them should attract adverse inference. The Court dismissed the complaint on the principle that the prosecution prima facie duty to call witness is limited and where a wittiness with material evidence for the defence is not called it is for the defence to call that witness. Rutakangwa JA delivered the judgment of the Court of Appeal in which it was said: In our opinion, this should not be taken to mean that the prosecution has the obligation to produce witnesses irrespective of the consideration of number and reliability. As is clear from the Court’s holding in… [Aziz Abdallah v R [1991] TLR 71] the prosecution has a discretion as to which witnesses should be called. After all, it is well settled that even the evidence of a single witness, if believed, would be sufficient to prove a fact. This is so because the evidence is to be weighed and not counted. See also s. 143 of the Evidence Act, 1967. It is also our firm view that if the defence honestly believed that those two people, who were not named by…[the appellant’s counsel] were very essential for a just decision of the case, it ought to have asked the prosecution to offer them for purposes of cross-examination or even call them as defence witness…. It is fair to assume that the appellant knew the person he was referring to and he could have called them to raise doubt in the prosecution case. 12 Besides, the appellant complained about prolonged detention at Magugu Police Post in police in contravention of the provisions of section 32 of the Criminal Procedure Act that directs suspects to be taken to the nearest court within twenty-four hours. This complaint was not addressed in the judgment of the trial court. I do not consider this complaint as affecting the appellant’s conviction. While a police officer is required to bring the suspect to court within twenty-four hours but he may not do so where the offence is a serious one but the suspect may be released on bail. The matter before me is not about the appellant being unjustifiably denied bail. Nor is the complaint based on evidence illegally obtained and used to convict the appellant or denial of legal representation at Magugu Police Post. It follows that the complaint has no merit. From the above analysis, I affirm the judgment and conviction of the trial Babati District Court and dismiss the appeal in its entirety. DATED at BABATI this 5th of December 2024 F.M. MIRINDO JUDGE COURT: Judgment delivered in chambers this 5th day of December 2024 in the presence of the appellant in person and in the presence of Ms. Anifa Ally, State Attorney for the respondent. B/C: Ms. Anna Mathayo (RMA) present. 13 Right of appeal explained. F.M.MIRINDO JUDGE 14