GIFT ROBERT SHAO vs REpublic 14

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 20817 OF 2024 (Originating from Criminal Case No. 86 of 2023 of Rombo District Court at Mkuu) GIFT ROBERT SHAO ……………………………………… APPELLANT VERSUS REPUBLIC ………………………………………………. RESPONDENT JUDGMENT 14/01/2025 & 14/02/2025 SIMFUKWE, J. The appellant Gift Robert Shao was arraigned before the District Court of Rombo (trial court) charged with unnatural offence contrary to section 154(1)(a) and (2) of the Penal Code, Cap 16 R.E 2022. 1 The offence was alleged to have been committed by the appellant on 05th May, 2023, at Mengeni Kitasha village, within Rombo district in Kilimanjaro Region, where the appellant had carnal knowledge of a boy of 7-years old against the order of nature. In a bid to prove the case, the prosecution paraded six witnesses and tendered one exhibit. Briefly, the prosecution through PW1, the victim’s grandmother established that on the fateful date, the appellant was playing with the victim and other children. Suddenly, she looked outside, she could not see her grandchildren. She searched for them in vain until later, when she saw them returning on their own, and they were not normal as they were not walking properly. When she asked them, they told her that Gift, the appellant herein, had taken them to an uninhabited house, entered through the window, undressed and sodomized them. Upon receiving this information, PW1 reported it to her son PW2, who, asked the children, they told him what had transpired. PW2 decided to take them to the police station, where they were given a PF3 and went to the hospital. At the hospital, PW6, a clinical officer, examined PW3, the victim and discovered that he had been penetrated in his anus by a blunt object. PW6 tendered the PF3, which was admitted as Exhibit P1. PW5, 2 a Police Officer, interrogated the appellant, he denied the charge levelled against him. During the trial, the victim who testified as PW3 informed the trial court that the appellant took him to Joel’s house, undressed him and sodomized him in front of his friend PW4, a 6 years old boy. PW3 narrated that the same act was done to PW4. The appellant denied to had committed the offence. He explained how he was arrested and stated that the testimonies of PW1 and PW2 were based on hearsay. At the conclusion of the hearing, the trial court decided that the prosecution proved its case beyond reasonable doubt. As a result, the trial court convicted the appellant and sentenced him to life imprisonment. The findings dissatisfied the appellant herein, who subsequently filed the instant appeal, raising five grounds of appeal as reproduced hereunder: 1. That, the learned trial Magistrate grossly erred both in law and fact in convicting and sentencing the appellant on a concocted and fabricated charge. 2. That, the learned trial magistrate grossly erred both in law and fact in failing to note that, the charge was at variance with the evidence on record. 3 3. That, the learned trial magistrate grossly erred both in law and fact in failing to note that, the evidence of the victim (PW3) not fully complied with section 127(2) of the Evidence Act. (sic) 4. That, the learned trial magistrate grossly erred both in law and fact in using weak, tenuous, contradictory, inconsistent, incredible and wholly unreliable prosecution evidence as a basis of the appellant’s conviction. 5. That, the learned trial magistrate grossly erred both in law and fact in convicting and sentencing the appellant despite the charge being not proved beyond reasonable doubt against the appellant and to the required standard by the law. The appellant prayed this court to allow the appeal, quash the conviction, set aside the sentence and set him free. During the hearing of the appeal, the appellant was unrepresented, while the respondent Republic, was represented by Ms. Wanda Msafiri, the learned State Attorney. 4 In support of the first and second grounds of appeal alleging a variance between the charge sheet and the evidence on record; the appellant identified several variances. First, he stated that the charge sheet indicated that the offence occurred at Mengeni Kitasha. However, PW3, the victim, stated on page 8 of the typed proceedings that the offence took place at Joel’s house, without clarifying whether Joel’s house is in Mengeni Kitasha or Machame Aleni Village. Also, during cross- examination, PW3 mentioned that the offence occurred at Machame Aleni, and in re-examination, he reaffirmed that it took place in Machame Aleni Village. The appellant also pointed out another variance concerning the victim’s residence. He elaborated that PW3 stated that he lived with his grandparents, including PW1, yet PW1 testified that she resided at Mengeni Kitasha Village. The appellant contended that the prosecution failed to invoke section 234(1) of the Criminal Procedure Act to amend the charge accordingly. To support this argument, he cited the case of John Julius Martin and Another v. Republic, Criminal Appeal No. 42 of 2020 at page 12 where it was held that: 5 “Legally where a place of commission of the offence is mentioned in the charge, evidence must be led to prove that indeed the Appellant committed the offence at that place.” The third noted variance concerns the number of victims. The appellant observed that, according to the charge sheet, there is only one victim, while the evidence on record identifies two victims, PW3 and PW4. Another variance relates to the date of commission of the offence. According to the appellant, the charge shows that, the offence occurred on 05/05/2023, yet the victims never supported this version. PW5, the investigator, stated that she was assigned to investigate the case on 09/05/2023 and that the offence occurred a day before, meaning 08/05/2023. The appellant supported this argument with the case of Salim Abdallah Maganga v. Republic, Criminal Appeal No. 285 of 2020, at page 5. He urged the court to amplify the findings in the above cited case in resolving the aforementioned shortfalls. On the third ground of appeal, the appellant argued that PW3’s evidence was taken in contravention of section 127(2) of the Evidence Act [CAP 6, R.E 2022]. He explained that before the 2023 Amendment, a child of 6 tender age was required to promise to tell the truth and not lies. The court was required to ask the child a few pertinent questions to determine whether he understood the meaning and nature of oath. The appellant averred that the questions asked to the victim did not reflect whether the trial court intended to determine if PW3 knew the meaning and nature of the oath. He supported his submission with the case of Amour Hamis Madulu v. Republic, Criminal Appeal No. 322 of 2021, in which the Court of Appeal cited with approval the case of Issa Salum Nambaluka and Another v. Republic, which held that: “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....” The appellant referred at page 8 of the typed proceedings of the trial court and opined that it cannot be said with certainty that the law was complied with. He believed that such an omission should lead the court to expunge PW3’s evidence, leaving no remaining evidence to sustain the appellant’s conviction. 7 On the fourth ground of appeal, the appellant faulted the trial court for failing to note that evidence of PW1, PW2, PW3, PW4 and PW5 was wholly unreliable, on the reason that it was contradictory, inconsistent, and incredible. To emphasize his point, he argued that PW3 stated that he did not raise an alarm during the ordeal because the accused covered his mouth, while his friend (PW4) stood beside him, watching and waiting for his turn. However, when PW4 was testifying, he said that the appellant undressed his clothes and pushing in an act (sic) at Joel’s house and that he didn’t raise an alarm because accused person told him not to raise an alarm. He made reference to page 9 of the typed proceedings of the trial court. According to the appellant, the statement of PW4 that ‘pushing in an act’ is ambiguous and very hard to understand what exactly this witness was trying to tell the court. Furthermore, the appellant contended that it is astonishing that while the alleged act was being committed against PW3, the victim failed to raise an alarm as his mouth was covered. However, when the same act was allegedly committed against his friend (PW4), who had been watching PW3 endure the pain of the unpleasant act, PW4 was merely told not to raise an alarm, despite his mouth not being covered like his friend’s. 8 Moreover, the appellant submitted that PW1, in his evidence, stated that both children (PW3 and PW4) were taken to the hospital for medical check-up. However, PW6, the medical officer, testified that he received and attended only one patient with a complaint of being unnaturally abused. Furthermore, the appellant contended that PW2, the victim’s father, testified that he interrogated the children, they told him that they had been sodomized by their uncle at Joel’s house. Based on this information, he decided to look for and arrested Gift, despite the fact that PW3 and PW4 did not mention Gift as a suspect. The appellant argued that the decision to arrest him as a suspect was made solely by the victim’s father and not because he was named by the victims (PW3 and PW4). The appellant stated that had the trial magistrate subjected the entire evidence on record to an objective scrutiny, he could have not reached to the conclusion he reached. Instead, he could have found that the case against the appellant was fabricated and that the prosecution failed to prove the charge beyond reasonable doubt. 9 In his final analysis, the appellant prayed this court to find merit in his appeal, allow it, quash the conviction, set aside the sentence, and set him at liberty. In reply, the learned State Attorney vehemently opposed the appellant’s submission. Responding to the first and second grounds of appeal regarding the variance between the charge and the evidence on record, Ms. Wanda submitted that the proceedings of the trial court were not in favour of the contentions of the appellant. She argued that PW1 and PW2, who live with PW3, informed the court that they were residents of Mengeni Kitasha. Both PW1 (at page 5 of the typed proceedings) and PW2 (at page 6) testified that the house where the incident took place is very close to their house. Thus, their testimonies before the trial court established Mengeni Kitasha to be the crime scene. Addressing the allegation that the date of the incident was not supported by the victim’s evidence, Ms. Wanda contended that the date was corroborated by other witnesses, such as PW1 and PW2, as recorded at pages 4 to 7 of the typed proceedings. In addition, PW6 testified at page 10 15 that she examined the victim on 05/05/2023, supporting the date stated in the charge. Regarding the claim that PW5, the investigator, was assigned the case file on 09/05/2023, a day after the alleged incident; Ms Wanda made reference to PW5’s evidence at page 12, she argued that the witness did not specify the actual date of the offence. Instead, she testified about the date when the complainant went to the police station to lodge the complaint. On the third ground of appeal, concerning the alleged contravention of section 127(2) of the Evidence Act (supra), Ms. Wanda submitted that the provision was not violated. She asserted that before giving evidence, PW3 was assessed by the court, which was satisfied that the child could tell the truth and not lies, as reflected at page 8 of the typed proceedings. The learned State Attorney continued to state that the law requires a child of tender age to promise to tell the truth and not lies before testifying. She cited the case of Ally Ngozi v. Republic, Criminal Appeal No. 216 of 2018 [2020] TZCA 1786 (Tanzlii), at page 9 where section 127(2) of the Evidence Act was amplified. Based on the cited decision Ms Wanda 11 was of the view that in the present case the requirement was duly complied with by the victim. The learned State Attorney added that, following the amendment of section 127(2) of the Evidence Act by section 32 of the Legal Sector Laws (Miscellaneous Amendments) Act, it is now trite law that a child’s failure to meet the provision of subsection (2) does not render evidence of such child inadmissible. Opposing the fourth ground of appeal that the trial court relied on weak, tenuous, contradictory, inconsistent, incredible and wholly unreliable prosecution evidence to convict the appellant, the learned State Attorney addressed the claim that PW3 did not raise an alarm because the appellant covered his mouth, while PW4 stated that he remained silent because the appellant told him not to. Regarding the alleged contradictions, Ms. Wanda argued that the appellant failed to specifically point out any contradiction in the testimonies of PW3 and PW4. Regarding the alleged contradiction that PW1 took both victims to hospital, while PW6 stated that she received and attended only one victim, Ms. Wanda referred to the case of Abdul Akwilini Mramba and 2 Others 12 vs Republic, Criminal Appeal No. 342 of 2021 [2024] TZCA 704 (Tanzlii) which held that: “A charge is framed according to the complaint presented to either the magistrate or the police. As stated in Athanas Ngomal vs Republic, Criminal Appeal No. 57 of 2018 (unreported), there is no provision of the law that requires the prosecution to prefer a certain charge. This is because, preference on which offence to charge has to consider whether the prosecution has reasonable and probable cause to believe that such an offence has been committed depending on the collected evidence. Since after all, at the end of the day, it is the prosecution with the burden to prove their case beyond reasonable doubt.” In the present matter, the learned State Attorney elaborated that the charge sheet consists of one count of unnatural offence, with the particulars alleging that the appellant had carnal knowledge of one CU (name concealed), a 7 years old boy, against the order of nature. Thus, PW6 testified regarding the examination of the said victim. 13 Countering the submission that PW3 and PW4 never mentioned the appellant to PW2, Ms. Wanda referred to page 6 of the proceedings, where PW2 stated that PW3 and PW4 told him “Uncle," whom he later identified as Gift. This was further supported by PW1’s evidence at page 5, where she stated that her two grandsons told her it was Gift who took them. Lastly, regarding the complaint that the prosecution failed to prove its case beyond reasonable doubt, Ms. Wanda submitted that she was supporting the trial court's conviction. She argued that the victim explicitly stated that the appellant sodomized him, as recorded at page 8 of the typed proceedings. Moreover, PW6, the doctor who examined the victim confirmed that the victim was penetrated by a blunt object, as reflected at page 15 of the trial court proceedings. Ms. Wanda submitted further that the victim testified that he knew the appellant, as they reside in the same area and are close relatives. That fact was supported by the appellant in his defence at page 18 of the typed proceedings of the trial court. The learned State Attorney added that in sexual offences like the instant one, the prosecution's duty is to prove penetration of the appellant’s penis into the victim’s anus and that the appellant was the perpetrator. Ms. 14 Wanda asserted that the victim’s testimony at page 8 of the proceedings sufficiently proved that it was the appellant who sodomized him. In conclusion, the learned State Attorney implored the court to dismiss the appeal for lack of merit and uphold the conviction and sentence imposed by the trial court. Having considered the grounds of appeal, submissions of the parties, and the trial court’s records, the issue for determination is whether this appeal has merit. On the first and second grounds of appeal, the appellant contended that there are variances between the charge and the adduced evidence. Specifically, the appellant argued that the variance pertains to the place of occurrence of the alleged offence. The charge sheet states that the offence was committed at Mengeni Kitasha. However, PW3 testified that the incident took place at Joel’s house. However, during cross- examination, he stated that it occurred at Machame Aleni, maintaining the same assertion during re-examination. The appellant further pointed to another variance concerning the number of victims. According to the charge, there is only one victim, whereas the 15 adduced evidence suggests that there were two victims, PW3 and PW4. The appellant argued further that the date of commission of the offence is inconsistent, as the victims did not testify about the incident occurring on the alleged date. The learned State Attorney opposed the appellant’s assertions, arguing among other things that the witnesses consistently testified that the offence occurred on 05/05/2023 at Mengeni Kitasha. She further contended that PW5 did not specify the exact date of commission of the offence. Upon a thorough review of the trial court proceedings, I find that there is no material variance that would undermine the prosecution’s case. As correctly submitted by the learned State Attorney, the argument regarding the date of the commission of the offence is devoid of merit, as all prosecution witnesses, except PW3, testified that the offence occurred on 05/05/2023. The fact that PW3 did not mention the date of the incident does not constitute a variance sufficient to invalidate the charge. Regarding the place where the offence took place, the charge sheet indicates that the offence took place at Mengeni Kitasha village. This is corroborated by the testimony of PW1 and PW2, who stated that they 16 reside at Mengeni Kitasha together with the victims. During cross- examination, PW3 affirmed that he lives with his grandmother, PW1, at Mengeni Kitasha. It is the observation of this court that, PW3’s reference to Machame Aleni does not amount to a variance, as he clarified at page 9 of the proceedings that Machame Aleni is where he attends school. Again, this court is of the view that the fact that the offence allegedly took place at Joel’s house does not create a variance, as the said house is close to PW1’s residence at Mengeni Kitasha. I am aware that a material variance between the charge sheet and the adduced evidence may undermine the prosecution's case. I also subscribe to the legal principles expounded in the authorities cited by the appellant, namely John Julius Martin and Another (supra) and Salim Abdallah Maganga (supra) that variance between the charge and evidence on record is fatal. However, the cited cases are distinguishable from the present appeal, as the variances between the charge sheet and the evidence, as pointed out by the appellant, are not material. Consequently, the appellant’s contention is devoid of merit. 17 Turning to the third ground of appeal, the appellant lamented that section 127(2) of the Evidence Act was contravened while taking the evidence of the victim, PW3 who was a child of tender age. Section 127(2) requires a victim of tender age, before giving evidence, to promise to tell the truth and not lies. This court, as well as the Court of Appeal, has expanded the above provision by prescribing procedures to be followed before taking a promise or oath from a child of tender age. That, before concluding that a victim of tender age has promised to tell the truth and not lies, the trial magistrate must ask the child simple pertinent questions to determine if he understands the meaning of speaking the truth and not lies. See the cases of Geoffrey Wilson vs Republic, Criminal Appeal No. 168 of 2018 (Tanzlii) at page 11; Edmund John @Shayo vs Republic, Criminal Appeal No. 336 of 2019 at page 14; and John Mkorongo James vs Republic, Criminal Appeal No. 498 of 2020 [2022] TZCA 111 [Tanzlii]. In the present matter, without wasting time, the trial magistrate complied with the said section as he recorded answers in the proceedings which reflect that he asked PW3 simple questions before receiving his promise 18 of speaking the truth and not lies. This is reflected at page 8 of the typed proceedings of the trial court which reads: “PW3 BT, 7yrs old, I am a Student at Machame Aleni Primary School in STD 1 QUESTION & ANSWER My teacher’s name is called teacher Ligo, at school we were taught to speak truth only, telling lies is a bad thing. PROMICE (sic) PW3-I promise to speak truth only.” The foregoing statement, as previously indicated, clearly suggests that the learned trial magistrate complied with the relevant provisions. Accordingly, the third ground of appeal is also devoid of merit. Be as it may, as rightly submitted by Ms. Wanda, following the amendment of section 127(2) of the Evidence Act (supra) by section 32 of the Legal Sector Laws (Miscellaneous Amendments) Act, 2023 it is now settled that a child's failure to satisfy this provision does not render his/her evidence inadmissible. 19 The next ground for consideration is the fourth ground of appeal. Under this ground, the appellant asserted that there were contradictions in the evidence of the victims, rendering their testimony unreliable. He specifically pointed to the fact that PW3 stated that he did not raise an alarm because the appellant covered his mouth, while PW4 testified that he remained silent because the appellant threatened him not to, despite PW3’s mouth being not covered at that time. These arguments were countered by Ms. Wanda, who submitted that the appellant failed to demonstrate any contradiction and merely restated the evidence of PW3 and PW4. With respect, I find that the learned State Attorney misapprehended the appellant’s submission. A thorough examination of the appellant’s arguments reveals that he sought to demonstrate the inconsistencies in the evidence of PW3 and PW4, which he claimed rendered their testimony weak and unreliable. Nevertheless, while I apprehend well the gist of the appellant’s submission, I respectfully find them to be devoid of merit. It must be noted that both PW3 and PW4 are children of tender age, whose reasoning may not always be rational or consistent, particularly when faced with the 20 traumatic ordeal of being sodomised. Therefore, the fact that PW3 did not raise an alarm at the time of the incident does not negate the occurrence of the ordeal. The appellant’s arguments do not undermine the fact that the offence was committed against PW3. Regarding the appellant's allegation that PW4's statement describing the act as "pushing in" is ambiguous and difficult to interpret, this argument is misplaced. In cases of sexual offences, the victim's testimony is considered the best evidence. In this matter, the key witness is PW3, not PW4. PW3 provided a clear and detailed account of how the appellant penetrated him, thereby establishing the essential elements of unnatural offence. This finding aligns with the appellant’s complaint that the charge sheet indicates one victim, while the adduced evidence suggests two victims. Respectfully to the appellant, the court is guided by the charge sheet, and in this case, the victim referred to, is PW3. As rightly submitted by Ms. Wanda, for the Republic, the charge sheet mentions one victim only, PW3. Furthermore, as stated in the case of Abdul Akwilini Mramba and 2 Others (supra), there is no provision in the law requiring the prosecution to prefer a specific charge, since the charge depends on the available 21 evidence that can prove the case beyond reasonable doubt. Apart from that, possibly the appellant was or may be charged in a different case in respect of the second victim. Regarding the appellant's argument that PW1 stated that all the victims were taken to hospital, while PW6 testified that he attended only one patient; I have reviewed PW1’s evidence. According to her testimony, it was PW2 who took the victims to hospital and not PW1. Therefore, the appellant’s complaint lacks basis, as it does not alter the fact that PW3 was taken to hospital. Further, I have carefully examined the evidence of PW6, the Clinical Officer. The appellant did not cross-examine PW6 regarding the fact that she received ‘only’ one patient, PW3. Moreover, PW6 testified that she attended PW3, but did not specify whether PW3 was the “only’’ patient she attended on the day in question in relation to the incident. Thus, the arguments by the appellant are devoid of merit. Moreover, while trying to cast the doubt on prosecution evidence before the trial court, the appellant claimed that the decision of implicating him as the accused was made by the victim’s father PW2 as the victim mentioned “uncle” as the offender. 22 It should be noted that the victims first mentioned the appellant herein to their grandmother, PW1. At page 5 of the typed proceedings of the trial court, PW1 testified that: “My grandchildren told me that when Gift took them in the said house, he undresses their clothes and took his private parts and inserted into their back...” Apart from the appellant being mentioned by the victims to their grandmother at the earliest possible time as perpetrator, it is undisputed fact that the appellant is the uncle of the victim, as the appellant stated during cross-examination at page 18 of the typed proceedings that: “B is my son, is the son of my brother thus we are known each other well, I never had grudges with B...” Having resolved all the grounds of appeal in the negative, it is the finding of this court, as the first appellate court, that the prosecution proved the offence charged beyond reasonable doubt. There is no doubt raised by the appellant, neither in this appeal nor during the trial, that can undermine the prosecution's case. 23 Therefore, it is the conclusion of this court that this appeal is devoid of merit, and I hereby dismiss it in its entirety. It is so ordered. DATED and DELIVERED at Moshi this 14th day of February 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 14/02/2025 24