YAHAYA SUNGI

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 8563 OF 2024 (Arising from Criminal Case No. 62 of2022 in the District Court of Singida) YAHAYA SULEMAN SUNGI.......................................... APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT JUDGMENT 13h & 31st December, 2024 MUSOKWA, J. The appellant herein was charged with the offence of grievous harm contrary to section 225 of the Penal Code, Cap.16 R.E. 2022 (Penal Code). The facts of the case provide that on 13th November, 2022 at Munyu Village, Irisya Ward, within Ikungi District in the Region of Singida, the appellant did cause grievous harm to his child aged eight years whose identity will be concealed but shall simply be referred to herein as "the victim". As a result thereof, the victim sustained serious injuries. The appellant was arraigned before the District Court of Singida (trial court) to stand trial to the charged offence. At the conclusion of the trial, the appellant was found guilty, convicted and sentenced to serve six (6) years imprisonment. Aggrieved with both the conviction and sentence, the i appellant filed this appeal containing seven (7) grounds of appeal as reproduced hereinafter verbatim: - 1. That, the victim (PW2) Akram Yahaya was aged 08 years, therefore was a child of tender age, his competency was not tested before testifying as demanded by section 127 (2) of the Tanzania Evidence Act, 1967Cap. 16 R. E2022. This is a mandatory requirement as elaborated in the case of Mohamed Sainyenye Vs Republic Criminal Appeal No. 57 of 2010 (Court of Appeal) and Hossan Hatibu VR Criminal Appeal No 71 of2002 (TCA) this is error to the part of the trial court which lead to injustice against the Appellant. 2. That, the evidence of PW1 (Mother of the child) falls under hearsay evidence that needs collaboration by other independent evidence to be admitted before this Honorable Court, but bad enough there is no collaboration as to where PWl said that she was only informed by her son but never saw the incident. 3. That, taking into consideration of the evidence tendered before the trial court and the circumstances of the case, the prosecution side did not prove the case beyond reasonable doubt. 4. That, the conviction was based not on the strength of the prosecution case, but it was due to the weakness of my defence because of lacking knowledge of laws to defend myself. 5. That, the court erred in law and facts by convicting the appellant regardless the contradiction of time whereby PW3 who received the information on the occurrence of the Criminal at 14:00 hours from PW6 Aziza Mohamed who was with Shaban Se/eman though in his information 2 told the trial court that he was present during the commission of an offence and it was at 20:00 hours hence leading to contradiction. 6. That, the trial court erred in law and facts by convicting the appellant by not asking itself on the contradiction of the information tendered by PW7 which falls under unlawful arrest. 7. That, the court erred in law and facts by convicting the appellant without taking into consideration on the point of land dispute between the appellant and his neighbours. This appeal was heard on 15th November, 2024 whereby the appellant appeared in person, unrepresented and the respondent had the service of Ms. Patricia Mkina and Ms. Margareth Tiegray both learned state attorneys. With the leave of this court, the respondent was the first to submit as the appellant waived his right to begin. To begin with, the respondent's counsel submitted that the appeal is vehemently contended. In addressing the 1st ground of appeal, Ms. Mkina conceded with the appellant's assertion that the competency of the child (the victim), was not tested prior to recording his testimony. Further that the child's testimony was not taken under oath. Indeed, the law requires for the competency of the child to be tested prior to recording such testimony. It is also permissible under the law for the testimony of a child of tender age, to 3 be taken without the child taking oath, as long as the child promises to tell the truth. Ms. Mkina proceeded to submit that despite the fact that the testimony of the child was not recorded under oath; and his competency was also not tested, however, the promise of the child to tell the truth was duly procured. This is indicated at page 7 of the typed trial court proceedings. Going ahead, the respondent collectively addressed the 2nd, 3rd and 4th grounds of appeal which generally challenged the evidence adduced by the prosecution during trail; claiming that the evidence fell short of the required legal standard in a criminal trial. Ms. Mkina asserted that while the testimony of PW1, the mother of the victim was hearsay evidence, however, the said testimony was corroborated by the testimony of PW2, the victim. Ms. Mkina further added that, the testimony of PW1 is corroborated by the testimonies of PW5 a medical doctor, and PW6 one Aziza Mohammed. The respondent emphatically contended the assertions by the appellant that the case was not proven beyond reasonable doubt. According to the respondent, the prosecution paraded credible witnesses before the trial court whose evidence sufficed to establish the ingredients of the charged offence. 4 Thus, the conviction and sentence that was meted out against the appellant was warranted. On the 5th and 6th grounds, the learned state attorney contended that the variations in the testimonies of the witnesses are minor and have no adverse impact to the prosecution case. The said variations include the time of the commission of the offence, specifically the testimonies of PW3 and PW6; whereby these witnesses stated that the offence was committed at 14:00hours and 20:00hours respectively. The appellant also raised concern on the testimonies of PW6 and PW7 with regard to the date of the commission of the alleged offence. The respondent reiterated that the aforementioned discrepancies do not undermine the credibility of the prosecution witness, and to fortify her argument, the case of Mohamed Said Matula vs R, [1995] TLR 3 was relied upon. Ms. Mkina further submitted that the court should consider the 7th ground of appeal as an afterthought and lastly prayed for dismissal of the entire appeal for want of merit. The appellant was brief in his submission whereby he prayed for the court to carefully consider the contradictions in the evidence adduced by the 5 prosecution witnesses. Accordingly, to draw an adverse inference thereto and to find that the prosecution failed to prove the charge against him beyond reasonable doubt. Finally, the appellant prayed for the court to allow the instant appeal and order his immediate release. Having heard the submissions from the parties, the issue to be determined is whether the offence to which the appellant was charged was proved beyond reasonable doubt. The provision that creates the offence of causing grievous harm is section 225 of the Penal Code, and the said section provides as follows: Section 225 "Any person who unlawfully does grievous harm to another is guilty of an offence and is liable to imprisonment for seven years." To start with the 1st ground of appeal, the appellant alleges that the victim was of tender age and therefore the trial court was required to test his competency before recording his testimony. In the present case, it is undisputed that the victim, whose testimony also formed part of the records, was a child of tender age. The provision of section 127(2) of the Evidence Act, Cap 6. R.E 2022 (Evidence Act) is relevant in this regard and stipulates as follows: - "A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving 6 evidence, promise to tell the truth to the court and not to tell any Ues. "[emphasis added] Further in the case of William Ntumbi vs Director of Public Prosecutions, Criminal Appeal No. 320 of 2019 (unreported), deliberated by the Court of Appeal of Tanzania (CAT) and held at pagel4 as follows: - "...a child of a tender age will, before giving evidence under circumstances permitted in that provision promise to tell the truth to the court and it is upon the court to ensure that the child promises to tell the truth and not Ues. That duty is not cast upon the prosecution and therefore it is the trial court which has to make sure that the process is conducted before examination in chief" [emphasis added] In another case of Yusuph Molo vs Republic, Criminal Appeal No. 343 of 2017 (unreported), the CAT held at page 12 that: - "It is mandatory that such a promise must be reflected in the record of the trial court... If such a promise is not reflected in the record, then it is a big blow in the prosecution's case... if there was no such undertaking, obviously the provisions of section .127(2) of the Evidence Act (as amended) were flouted. This procedural irregularity in our view, occasioned a miscarriage ofjustice. It was a fatal and incurable irregularity. The effect is to render the evidence of PW1 with no evidentiary value. It is as if she never testified to the rape allegation against her (the appellant). It was wrong for the evidence of PWl to form the basis of conviction." [emphasis added] 7 For purposes of transparency, the testimony of the victim, PW2 is reproduced hereinafter as recorded at pages 7 and 8 of the trial court proceedings: - PW2: "Victim" 8 years, nasoma darasa la kwanza, shu/e ya msingi Italala, Ninaahidi kusema ukweli mtupu. Mahakama: Shahidi ambaye ana miaka nane (8) amesema mbe/e ya mahakama kwamba atasema ukweli, kweli mtupu. According to the records above, and being guided by the above cited legal authorities, the trial court duly obtained and recorded the child's promise to tell the truth before proceeding with the testimony of the child with a tender age. Therefore, it is true, as correctly submitted by the learned state attorney, this ground of appeal lacks merit and it is dismissed. The appellant under the 2nd, 3rd, and 4th grounds of appeal attacked the testimony of PW1 alleging that it was hearsay evidence and without corroboration. The appellant further challenges the entire evidence of the prosecution for not being credible, to warrant the conviction against him. In reply thereto, the respondent's counsel submitted that the testimony of PW1 was corroborated by the testimonies of PW2, PW5 and PW6. Thus, the testimonies of these witnesses collectively, sufficed to prove the ingredients of the charged offence. 8 Looking at the records, the prosecution relied upon a total of seven witnesses to prove their case. Indeed, as correctly submitted by the respondent, apart from the challenged evidence of PW1, the mother of the victim, there exists potential evidence from other witnesses. For instance, PW7 recorded a cautioned statement and the same was tendered and admitted as Exhibit P2. Notably, the appellant had no objection thereto, as reflected at page 20 of the trial court proceedings. Similarly, the evidence of PW3 is recorded at page 10 of the trial court proceedings as follows: - "Tulimwambia amtoe na a/iingia Hi amtoe na mtoto kuanza kulia, a/imtoa aiikuwa hawezi kusimama, na tuiipomchunguza aiikuwa amekatwa vibaya kwa kutumia kwanja, tuiimchukua mtoto kwa kumbeba mapaka ofisi ya Kijiji na kumkuta Mwenyekiti na Mtendaji na tu/imshusha mtoto pale, watu walikuwa wengi na mtoto alieleza kwamba baba yake aiimkata shingoni kwa kwanja, mguuni, na mgongoni na mshitakiwa akiwa chini ya uiinzi. Mtoto tu/impa chakula na kue/eza baade kwamba baba aiikuwa anasema anataka kuniua" [emphasis added] Additionally, the evidence of PW6 is recorded at pages 17 and 18 of the trial court proceedings as follows: - "Nikiwa njiani niiisikia sauti ya mtoto ku/ia ikiwa mbele yangu na ndipo niiikutana na huyu mshtakiwa na nilimuuliza kwa nini unampiga mtoto huku akiwa na kwanja mkononi, mtoto ana/ia na damu inatoka 9 kutokea shingoni, akaniambia niendeiee na mambo yangu, huku akionyesha kwanja juu, ndipo nikaamua Kwenda kutoa taarifa kwenye ofisi ya dawati la jinsia. KuHkuwa na mba/amwezi, na kwa vi/e namfahamu mda mrefu na tuko Kijiji kimoja" [emphasis added] Regarding the 5th and 6th grounds of appeal, the appellant contends that the testimonies of the witnesses were contradictory. The said contradictions relate to the time of the commission of the offence. It is my view that the variations regarding time of the commission of the offence are minor and did not go to the root of the case. Thus, I find that this ground of appeal to be unmeritorious. In terms of legal authority, the case of Abubakari Shabani vs Republic, Criminal Appeal No. 312 of 2021 (unreported), is relevant. The CAT held that: - "'Regarding the time when the appellant was taken to police, whether it was in the morning as per PW2 or noon as testified by PW4, we find it to be minor as it did not go to the root of the case." [emphasis added] In another case of Dickson Chilongola vs Republic, Criminal Appeal No.116 of 2023, this court (Mwanga J.) deliberated the questions of contradictions, discrepancies, or inconsistencies of the evidence. In particular, at page 11, it was held as follows: - io ''Minor contradictions, discrepancies, or inconsistencies which do not go to the root of the case for the prosecution cannot be a ground upon which the evidence can be discounted, and they do not affect the credibility of a party's case... In the case of Said Ally Saif vs. R. Criminal Appeal No. 249 of 2008 (unreported), the court had this to say: It is not every discrepancy in a prosecution case that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory that the prosecution case will be dismantled. Minor contradictions and inconsistencies on trivial matters that do not affect the prosecution's case should not be made a ground on which the evidence can be entirely rejected" [emphasis added] Finally, in addressing the 7th ground of appeal, the appellant alleged that the trial court failed to take into consideration the land dispute between the appellant and his neighbours. In response thereof, Ms. Mkina submitted that the 7th ground of appeal was an afterthought. Indeed, I agree with the submission of the learned state attorney in respect of this ground of appeal. The reason is that the said ground of appeal was not part of the appellant's defence and therefore it was not canvassed by the trial court. Ordinarily, the appellate court is called upon to determine matters that were dealt by the subordinate court. This ground is therefore baseless. li In view thereof, I am of the settled conclusion that the prosecution proved their case beyond reasonable doubt in compliance with section 3(2) (a) of the Evidence Act. Accordingly, this appeal has no merit and it is hereby dismissed in its entirety. It is so ordered. Right of appeal is explained. DATED at DODOMA this 31st day of December, 2024. Judgment delivered in the presence of the appellant; and in the presence of Mr. Gotharb Mwingira, state attorney for the respondent. 12