IDRISA OMARY TANZLII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 12471 OF 2024 (C/F Criminal Case No. 47 of 2021 before the District Court of Dodoma) IDRISA OMARY...... ............................................. .APPELLANT VERSUS THE REPUBLIC...............................................................RESPONDENT JUDGMENT Last Order: 16Bl October, 2024 Date of Judgment: 13th November 2024 MASABO, J:~ In the District Court of Dodoma (the trial court), the appellant was found guilty and convicted of an unnatural offence and subsequently sentenced to a prison term for life. The particulars of the charge against him were that on 22nd January 2023 at Nkuhungu area within Dodoma District and Region, he unlawfully knew the victim, PW1, a boy aged 9 years, against his order of nature. The appellant denied the charge. When the case went for trial, the prosecution called eight witnesses who were: the victim (PW1), the victim's grandmother (PW2), Ramadhani Shabani Kondo, Madrassa teacher (PW3), Aisha Ramadhani, the landlady for the Madrassa (PW4); Rukia Juma, a teacher and secretary of Assas-l-haq Madrassa (PW5); PW6, Anect Nina Mwambya a Social Welfare Officer, (PW6) and PW7 Nziajose Khalid Kachanje and the investigator of the case (PW8). Also, it relied on a PF3 that was admitted as exhibit Pl. Page 1 of 18 From these witnesses, it was stated that the appellant was among the tutors at Assa-l-hag madrassa where the victim used to attend as a pupil. On the fateful day, the victim had attended the madrasa. The accused called him and asked him to go to the toilet. The victim obliged. He went to the toilet. The appellant followed him and when they arrived, he asked him to remove his clothes/underwear. The appellant then rubbed a lubricant oil into the victim's anus, inserted his penis and carnally knew him against the order of nature. After he finished, he asked the victim to defecate and clean his anus. The victim did not disclose the incident to his fellow pupils but when he went back home he disclosed the incident to his grandmother (PW2). PW2 reported the matter to the police station. The victim was taken to the hospital for examination and was examined by PW7. A PF3 containing the medical report was admitted as exhibit Pl. It was testified also that the appellant once confessed to have committed the offence before PW3 and PW4 and asked for an amicable settlement. After weighing this evidence against the appellant's total denial, the court found the prosecution to have proved the case beyond reasonable doubt hence the conviction. He was subsequently sentenced to life imprisonment, twelve strokes of the cane and compensation to the tune of TZS 2,000,000/=. The appellant was dissatisfied. He filed this appeal based on eight grounds of appeal which I summarize as follows: one, the prosecution did not prove its case beyond reasonable doubt; two, the trial court erred in convicting him based on the evidence of a child of tender age; three, the evidence of the victim was uncorroborated; four, the trial court erred in convicting him by relying on the evidence of PW3 and PW5 who testified that the appellant confessed before them and asked for reconciliation; five, the age of the Page 2 of 18 victim was not proved; six, the pupils who were attending madrassa on the fateful date were not called to testify in court; seven, his defense was not considered and, eight, the credibility of the witnesses was not assessed. With the leave of the court, the appellant filed the following two additional grounds of appeal: first, no evidence was tendered to prove that the victim was among the pupils who attended the madrassa on the fateful date and, second, no evidence was tendered to prove that the appellant was among the teachers of the madrassa on the fateful date. During a viva voce hearing of the appeal, the appellant had no representation. He fended for himself whereas the respondent was represented by Ms. Miyango Kezilahabi, learned Senior State Attorney. Submitting on the first ground of appeal, the appellant argued that the case was not proved to the required standards. On the second ground, he argued that the trial magistrate erred in convicting and sentencing him to serve life imprisonment based on the evidence of the victim who was a child of tender age and unreliable because he told the court that the appellant sodomised him on 22nd January 2023 but the evidence of the Doctor, PW7, and the PF3, shows that the victim was not sodomised as there was no penetration or bruises on his anus. Submitting on the third ground, he argued that PWl's evidence was insufficient as it was not corroborated. On the fourth ground, he submitted that the court wrongly relied on PW3 and PW5 who stated that he asked them for an amicable settlement of the matter after he confessed to have sodomised the victim. This narration ought not to have been believed as the so called confession was not recorded. Page 3 of 18 On the fifth ground, it was submitted that the age of the victim was not proved as there was neither a birth certificate nor a clinical card showing his age. Since the victim was of a tender age, there must have been strong proof of his age but there was none and his evidence was recorded in contravention of the law regulating evidence of minor children. Regarding the 6^ ground, it was submitted that the trial magistrate erred in sentencing the appellant while the evidence of PW4 was not corroborated by the pupils from the madrassa. On the seventh ground, it was briefly submitted that the appellant's defence was not considered. Lastly, on the eighth ground, it was submitted that the trial magistrate did not properly evaluate the evidence of the prosecution especially the testimony of PW1 to see whether it sufficed to ground a conviction. Submitting on the additional grounds, the appellant argued that the trial court wrongly relied on the evidence by PW3, PW4 and PW5 who stated that on the date of the incident, PW1 was among the pupils who attended the madrassa on that day but tendered no attendance register in substantiation. On the 2nd additional ground of appeal, he submitted that his conviction and sentence were unfounded as there was no document showing that Assa-I- hag madrassa had invited him to attend the madrassa classes on the fateful day. Thus, there was no evidence that he was at the scene on the fateful date. In conclusion, he prayed that his appeal be allowed, the conviction and sentences be set aside and he be discharged from prison. Page 4 of 18 In reply, Ms. Kezilahabi, opposed the appeal submitting that the case was proved beyond a reasonable doubt. She amplified that, as the appellant was charged with an unnatural offence, it had to be proved that the victim was penetrated by none other than the appellant. Also, since the victim was 9 years old, his age was to be proved. She then submitted that penetration was proved. PW1 the victim, proved that he was penetrated against the order of nature. After he promised to tell the truth, he narrated how the appellant asked him to go to the toilet, followed him, asked him to take off his trouser and after he undressed, the appellant took a lubricant from his pocket and rubbed it into his anus and thereafter he inserted his penis. After he had finished, PW1 defecated and washed his anus on the appellant's instructions. She proceeded to submit that, the incident happened in the toilet while the other children were studying in the class which is not a surprise as such incidents do not happen in public. They are often secretly committed and the victim, in this case PW1, is the best witness. The trial court found him credible and trusted him. Thus, there is no reason why he should be disbelieved. In bolstering her submission, she cited the case of Seleman Makumba vs R [2006] TLR 379 and Yusuph Molo vs Republic, Criminal Appeal No. 343 of 2017 [2019] TZCA 344 TanzLII where it was held that the true/best evidence in sexual offences comes from the victim. Regarding the credibility of PW1, the learned State Attorney cited the case of Goodluck Kyando vs Republic [2006] TLR 363 in fortification of her argument that every witness is credible unless there are grounds for not Page 5 of 18 trusting him. It was submitted further that another piece of evidence is the appellant's oral confession to PW3 and PW5 who are the workers of the Madrassa. These told the court that the appellant confessed to have molested the victim and wanted an amicable settlement. As regards the evidence of PW7, it was argued that his testimony was inconclusive as he stated that he did not see bruises or sperms on the victim's anus yet he stated that he was not 100% sure that the victim was not sodomised. Ms. Kezilahabi argued further that, the evidence of the doctor is an expert opinion which is only persuasive. She also beseeched the court to take note and to positively consider the uncontroverted narration that before sodomizing the victim the appellant rubbed oil on his anus which sufficiently explains why there were no bruises. She also invited the court to consider PWl's evidence that, after the incident, he defecated and cleaned his anus. Further, while citing the case of Baraka Steven vs R, Criminal Appeal No. 541 of 2020 [2024] TZCA 879 TanzLII and Magian Kubilu@ John vs Republic, Criminal Appeal No. 564 of 2016 [2020] TZCA 1750 TanzLII she submitted that penetration is not proved by the presence of seamen or bruises on the victim's anus. It can be proved orally by the victim and other witnesses even in the absence of a PF3. f On the issue of age, it was submitted that it was well proved that the victim was 9 years old. The proof came from the victim himself and his grandmother, PW2, who stated that the victim was born in 2014. Hence, he was 9 years old at the time of the incident. Citing the case of Isaya Renatus vs R, Criminal Appeal No. 542 of 2015, CAT (unreported), the learned State Page 6 of 18 Attorney argued that the age of the victim can be proved by the victim, a relative, a parent, a medical practitioner or, where available, by the production of a birth certificate. Thus, the birth certificate is not the sole proof of the victim's age. The victim's testimony and that of his grandmother sufficed. As regards the appellant's involvement, it was further submitted that the appellant was sufficiently implicated. The victim mentioned him at the earliest opportunity. He told his grandmother that the appellant was the one who molested him. He also identified him in court and when the appellant cross-examined him, he answered that he knew him as Idrisa. On the compliance with the procedure for recording the evidence of the victim, it was submitted that the procedure set out under section 127(2) of the Evidence Act was duly complied with. As shown in the handwritten proceedings, the victim promised to tell the truth before his evidence was recorded. She fortified her submission with the case of Mathayo Lawrence William Mollel vs R, Criminal Appeal No. 53 of 2020 [2023] TZCA 52 TanzLII where it was held that the promise to tell the truth is enough. She went on to submit that PW4 who is the landlady of the Madrassa was a credible witness. Even though there is no documentary proof that the appellant was invited to the madrassa on the fateful day, there was no dispute that he was not there as shown in uncontroverted evidence of PW1 and PW4. Page 7 of 18 On the complaint that the defence was not considered, it was argued that the lamentation is with no merit as the appellant's defence was adequately considered as seen in pages 22 and 23 of the trial court's judgment. In the alternative, it was submitted that should this court find that it was not considered, it can step into the shoes of the trial court and consider the appellant’s defence because being the first appellate court, this court is enjoined to reevaluate the evidence as stated in case of Mzee Ali Mwinyimkuu @ Babuseya v R Criminal Appeal No 499 of 2017 [2020] TZCA 1776 TanzLII. On the credibility of PW1, it was argued that he was a credible witness and as per section 127(6) and 127 (7) of the Evidence Act, his evidence suffices. On additional grounds, it was submitted that the absence of the attendance register and the invitation letter are inconsequential to the prosecution's case which was duly proved through PW1, PW3 and PW4 who credibly stated that the appellant was at the madrassa on the fateful date. Even the appellant himself said that he was at the madrassa. In any case, it was argued, it is least expected that madrassa classes being religious programs have attendance registers. In conclusion, Ms. Kezilahabi submitted that the appeal has no merit and should be dismissed. In rejoinder, the appellant reiterated his prayer that the appeal be allowed as it is inexplicable that the victim's anus had no bruise and the madrassa pupils did not testify that he was at the madrassa on the said date. Page 8 of 18 Upon considering the grounds of appeal, the submissions in support and in opposition to the appeal and the trial court's record, I will now determine the appeal. I will first deal with the age of the victim because it is a crucial element of the offence and has a bearing on the irregularity complained in the second ground of appeal. As per the charge sheet, PW1 was 9 years old at the date of the incident. The appellant has lamented in the 5th ground of appeal that the age of the victim was not proved as there was no birth certificate. While I agree with him that the offence against which he was charged required credible proof of the age of the victim, I disagree with his complaint that such evidence was missing as there was no birth certificate. As correctly submitted by Ms. Kezilahabi, the age of a person can be established through diverse means including a birth certificate, the person's own oral evidence and in respect of children, the testimony of a parent or guardian (see Isaya Renatus vs Republic (supra), Jaspini s/o Daniel @ Sikwaze vs Director of Public Prosecutions (Criminal Appeal 519 of 2019) [2021] TZCA 58 TanzLII and Rutoyo Richard vs Republic (Criminal Appeal 114 of 2017) [2020] TZCA 298, TanzLII). In the present case, PW1 testified that he was 9 years and her grandmother, PW2 stated that he was 9 years as he was born in 2014. These two pieces of evidence credibly and sufficiently proved the age of PW1 and there is no doubt that he was 9 years old. The fifth ground of appeal is, therefore without merit and is overruled. On the second ground of appeal to which I now turn, it has been alleged that there were irregularities in recording the evidence of PW1. The appellant has complained that the recording of PWl's evidence proceeded in total contravention of section 127 (2) of the Evidence Act which provides that: Page 9 of 18 "A child of tender age may give evidence without taking oath or making an affirmation but shall before giving evidence promise to tell the truth to the court and not to tell any lies". For completeness, this provision should now be read together with section 127(7) of the same Act which was recently ushered into the Act by section 32 of the Legal Sector Laws (Miscellaneous Amendments) Act, No. 11 of 2023. It provides that: (7) Notwithstanding any other law to the contrary, failure by a child offender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible."; Dealing with these two provisions in the case of George Jonas Lesilwa vs Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 TanzLII, the Court of Appeal held that: "Going by this position of the law, it is crystal clear that, where a child of tender age gives evidence without taking oath or making an affirmation but after promising to tell the truth to the court and not to tell lies,........ For the sake of completeness, we are constrained, before leaving this subject, to observe that, going by the above interpretation of the law, it must be clear that, the evidence of a child offender age should not be discarded on flimsy reasons without proof on a balance of probabilities that there was something lacking that really affected the quality and credibility of such evidence. In other words, an appellate court should look at the substance of the complaint raised by the appellant and see whether the alleged non-compliance with section 127 (2) of the Evidence Act was of such a nature as to be said, in rational terms, to have produced a substantial defect upon such Page 10 of 18 evidence. The above observation, no doubt is the reason behind the recent introduction of section 127 (7) of the Evidence Act as amended by the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of 2023...." (Emphasis added). For purposes of the above provisions, a child of tender age is defined under section 127(4) of the Evidence to mean a child below the age of 14. Since it has been established that PW1 was 9 years old, he was undoubtedly a child of tender age and the recording of his evidence had to comply with section 127(2) above. The appellant's lamentation is a blanket lamentation as it does specify how section 127(2) was offended. Nevertheless, I have scrutinized the record to ascertain the anomaly if any. In my scrutiny of the handwritten proceedings, I have observed that the following transpired on 15th February 2023 before the victim started giving his evidence: "PW1. Omary Mazimbu, 9 years old, Resident of Mzuri, Pupil of Dodoma Imani, Muslim promise to speak the truth." I have asked myself whether the proceeding above significantly offended section 127(2) of the Evidence Act. Guided by section 127(7) of the Evidence Act and the decision of the Court of Appeal in George Jonas Lesilwa vs. Republic (supra), I have concluded that this proceeding does not exhibit any substantial defect that could justify the discarding of PWl's testimony. The second ground of appeal is for these reasons, found unmerited. Having resolved these grounds of appeal, let me now move to the central issue for determination, namely whether the case against the appellant was Page 11 of 18 proved to the required standard. The appellant has complained that the case against him was not proved because: he was convicted based on the uncorroborated evidence of PW1; PW3 and PW5 testified he made an oral confession before them but produced no proof of the record of such confession; the doctor's evidence and the PF3 demonstrated that the victim was not known against the order of nature as he was found with no bruises; there was no proof that the victim and the appellant were at the madrassa on the fateful day as the pupils who were attending madrassa on the fateful date were not called to testify in court there was no attendance register for the madrassa and there is no documentary proof that he was invited to the madrassa on the same day and lastly, his defence was ignored. It is a cardinal law that in criminal cases the prosecution is duty bound to prove the charges against the accused beyond reasonable doubt. The burden never shifts to the accused as he need not prove his innocence. All he needs to do is to raise reasonable doubts to the prosecution case (see Mohamed Haruna © Mtupeni & Another v. Republic, Criminal Appeal No. 25 of 2007 [2010] TZCA 141 TanzLII and Mwita and Others v. Republic [1977] TLR 54). Therefore, the appellant's conviction can only be sustained if it is established that the prosecution proved without reasonable doubt that he was guilty of an unnatural offence against PW1. Starting with the lamentation that the appellant's defence was ignored which is the 7th ground of appeal, the law is settled that the accused's defence must be thoroughly assessed and evaluated just as the prosecution's case. Omission to consider the accused's defence is a fatal anomaly with severe Page 12 of 18 consequences to the judgment as stated in the case of Rajabu Abdallah ©Mselemu vs. Republic, Criminal Appeal No. 134 of 2014, [2014] TZCA TanzLII where the Court of Appeal held that: As this Court has stated in different cases time and again, such omission constitutes a fatal error. To reiterate what has always been insisted in this regard, both courts below ought to have observed the well-established principle of law that in writing a judgment, a court has to consider not only the evidence in support of one party's in a case and completely ignore the evidence for the other party, however worthless it may appear. While reading the lower court record, I have observed that, as rightly submitted by Ms. Kezilahabi, the appellant's defence was thoroughly considered on pages 22 and 23 of the judgment but it was found to have cast no reasonable doubt to the prosecution's case. The lamentation is, therefore, baseless. In any case, as correctly argued by the learned counsel, this is a first appeal and this court being the first appellate court for this appeal, is enjoined to evaluate the evidence and come up with its own finding on whether the case was proved to the required standard. The 7th ground of appeal is also devoid of merit. The complaint that there was no proof that the victim and the appellant were at the madrassa is also without merit as it was proved. PW1 narrated very well that the appellant was at the madrassa on the fateful day. The appellant did not cross examine him on this fact suggesting that he admitted it as true because, it is a trite law in our jurisdiction that the failure to cross examine Page 13 of 18 amounts to admission. As held in Jafari Juma vs Republic (Criminal Appeal 252 of 2019) [2023] TZCA 216 TanzLII:- "As a matter of principle, a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said. See, for instance, Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010, Cyprian A. Kibogoyo v. Republic, Criminal Appeal No. 88 of 1992, Paul Yusuf Nchia v. National Executive Secretary, Chama cha Mapinduzi and Another, Civil Appeal No. 85 of 2005 and Khaji Manelo Bonye v. Republic, Criminal Appeal No. 338 of 2008 (all unreported)" Not only that, PWl's testimony was corroborated by PW4, who testified that the appellant was at the madrassa on the same day. She saw the appellant and they had a conversation. When cross-examined, PW4 maintained that the appellant was at the madrassa on the fateful day and she saw him with her eyes. From the evidence of these two witnesses, it was credibly established that the appellant was at the madrassa on the fateful day. The fact that there was no attendance register and an invitation letter cannot negate the credible evidence from these two witnesses. Needless to say, oral evidence is not inferior to documentary evidence. The law recognizes both of them and accords them the same weight. Thus, it is irrelevant whether the proof of the appellant's presence at the madrassa was in the form of oral or documentary evidence. What matters is the credibility of such evidence. As for the failure to summon the madrasa pupils as witnesses and the learned State Attorney's reliance on section 143 of the Evidence Act. The law is settled that, although the number of witnesses is immaterial to the case Page 14 of 18 as what matters most is the quality as opposed to the quantity of the evidence, all material witnesses to the case must be paraded else it would attract an adverse inference. In Leonce Evarist Maro vs Republic (Criminal Appeal No. 458 of 2020) [2024] TZCA 341 TanzUI, the Court of Appeal held thus: "We also, agree with Mr. Mashurano that the number of witnesses do not matter, but the weight and reliability of the evidence to prove the offence. We are also alive to the position that in law, no specific number of witnesses is required to establish a fact as even a single witness may suffice so long as the contents of his testimony proves the alleged offence and that the prosecution has the liberty to choose witnesses to prove the case as stated in Tafifu Hassan @ Gumbe Vs. R, (Criminal Appeal No. 436 of 2017) [20211 TZCA 436 (27th August 2021, TANZUI). However, the said position is never absolute but it is subject to another principle of law that, failure by a party to call an important or material witness who is within reach without any reason may entitle the court to draw an adverse inference against that party on a particular fact." The question that I have to answer is whether such pupils were material witnesses. A material witness is defined to mean such witnesses "without whose testimony, the material facts and the flow of events breaks in and raise unanswered questions" (see Leonce Evarist Maro vs Republic (supra)). From this definition, it is crystal clear that much as the pupils could have been good witnesses, they were not material witnesses because they did not eyewitness the commission of the offence by the appellant. Their evidence could have served to establish whether the appellant was at the madrassa on the fateful day but as I have already stated, such fact was Page 15 of 18 credibly proved by PW1 and PW4. The failure to parade them was, therefore, with no consequences. Accordingly, the sixth ground of appeal fails. As for the oral confession allegedly made by the appellant before PW3 and PW5 which is the substance of the 4th ground of appeal, it will not detain me because, as it can be seen in the trial court's judgment, the appellant's conviction and sentence was not based on the confession. Rather it was based on the evidence of PW1 which was found by the court to be credible. The appellant's lamentation is therefore with no merit. I will now turn to the evidence of PW7 and Exhibit Pl. The appellant has contended through the second ground of appeal that the evidence of PW1 ought not to have been believed as it was inconsistent with the PF3 (Exhibit Pl) and the testimony of DW7. Admittedly, the medical report tendered by this witness stated that after examining the victim's anus he found no bruises and the sphincter muscle was intact and there were no sperms. The appellant is beseeching this court to take this as conclusive evidence that the victim was not molested. This argument is, unfortunately, inconsistent with the law as the relaxation of the sphincter muscles and the presence of bruises or sperms in the victim's private parts are not conclusive proof that the victim was carnally known by the appellant (see Daniel Nguru and 4 others v- The Republic, Criminal Appeal No. 178 of 2004, CAT (unreported) and Joshua Mgaya vs Republic (Criminal Appeal No. 205 of 2018) [2020] TZCA 231 TanzLII, Baraka Steven vs- Republic (supra) and Magian Kubilu @ John vs. Republic (supra). In Daniel Nguru and 4 others v. The Republic (supra) the Court of Appeal categorically stated thus: Page 16 of 18 "Another ground of complaint is that there was no proof of penetration in respect of the rape offence for the reasons already stated. This too is arid of merit Penetration is not proved by presence of semen on the body of the prosecutrix or bruises on her vaginal region. If bruises were such a natural consequence, then many women would have opted for total abstinence. The best proof was provided by PW2 herself who categorically stated that all the appellants carnally knew her in turns" Accordingly, in the present case, non-relaxation of the sphincter muscles and the absence of bruises and sperms in PWl's anus cannot override the otherwise credible evidence of PW1 which is considered by law to be the best evidence in sexual offences. Unless it is found that PWl's evidence was doubtful, such contentions cannot stand. As correctly submitted by Ms. Kezilahabi, PW1 narrated very well how the appellant who was his madrassa teacher led him to the toilet, asked him to take off his trouser and rubbed a lubricant into his anus before he penetrated him and how, after the incident, he defecated and washed his anus on the instruction of the appellant. The trial magistrate who had the opportunity to examine the demeanor of the victim while in the witness box remarked that he was not mincing words and remained consistent even after being cross-examined, hence credible. Although the appellant has invited me to depart from this finding, he has rendered no credible justification as to why I should depart. Accordingly, I decline the invitation because, in law, every witness is credible and should be believed unless there are grounds for not trusting him (see Goodluck Kyando vs Republic [2006] TLR 363. As none has been demonstrated and since in my reassessment of the evidence I found nothing capable of Page 17 of 18 rendering PW1 untrustworthy, I uphold the trial court's finding that PWl's evidence which is the best evidence in such offences, (see Seleman Makumba vs R (supra) and Yusuph Molo vs Republic, (supra) ably proved that PW1 was carnally known against his order of nature and it sufficiently implicated the appellant as the culprit. I have also noted in the course of re-assessment of the evidence that the appellant did not cross examine PW1 on the most critical part of his evidence. He just asked him whether he was the one who asked him to go to the toilet, the distance between the class and the toilet, whether he immediately disclosed the incident and whether he had been couched to testify against him. As already stated above, it is a settled principle of law that the failure to cross examine implies admission. The appellant's failure to cross examine PW1 on what transpired in the toilet implies that he found PWl's narration that when they got to the toilet, he ordered him to undress and rubbed a lubricant into his anus before he penetrated him, true and he admitted it. His lamentation is therefore an afterthought and devoid of weight. That said and done, the appeal fails in its entirety and it is dismissed. The conviction and the sentences passed by the trial court are upheld. DATED and DELIVERED at Dodoma this 13th day of November 2024. Page 18 of 18