NICHORAUS AMADEUS SHAO Vs Republic pdf

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 26772 OF 2024 (Originating from Criminal Case No. 8465 of 2024 of Rombo District Court) NICHORAUS AMADEUS SHAO @ BABAKE …………… APPELLANT VERSUS REPUBLIC ………………………………………….......... RESPONDENT JUDGMENT 17/02/2025 & 10/03/2025 SIMFUKWE, J. The appellant Nichoraus Amadeus Shao @ Babake was arraigned before Rombo District Court (trial court) charged with Unnatural offence contrary 1 to section 154(1)(a) and (2) of the Penal Code, Cap 16 R.E 2022 and Rape contrary to section 130 (1) (2) (e) of the Penal Code. It was alleged before the trial court that on 17th day of March 2024 at Kahe village- Usseri within Rombo District in Kilimanjaro Region, the appellant had carnal knowledge of two girls aged 12 years old (hereinafter to be referred as PW1 and PW2 or victims) against the order of nature. On the same date, time and place, the appellant was alleged to had raped the same girls. The brief facts of the tragedy were that on the fateful day, PW1 was escorting PW2 to their homestead. While on the way, they saw the appellant whom they knew by his nick name “Babake”, at the farm planting maize. After they had refused to respond when he called them, the appellant caught both of them by force and took them to his house. Then, he locked them inside the house and raped and sodomised both of them one by one. According to the testimonies of both victims, apart from 17th March 2024, they were raped and sodomised by the appellant several times on diverse dates. Both of them were staying with their grandparents who did not take any initiative after being informed of the tragedy by the victims. The ordeals came to light after both victims had narrated to their friends at school. The said friends Sharon and Happiness reported to their 2 teachers (Sebastian and Oliva) who then took them to the police station and later to hospital. In his defence, the appellant denied to had committed the offences. When cross examined, he said that he had no grudges with both victims and he did not know why the offences were fabricated against him. The trial court convicted and sentenced the appellant to life imprisonment and thirty years imprisonment respectively. The appellant was dissatisfied with the conviction and sentence. He filed the instant appeal on the following grounds: 1. That, the learned trial magistrate erred both in law and factual analysis when he failed to note that the charge against the appellant was not proved beyond reasonable doubts. 2. That, the learned trial magistrate erred in both law and factual analysis when he failed to note that the essential prosecution witnesses were never summoned to testify. 3. That, the learned trial magistrate erred both in law and fact in failing to preside the case in camera as directed in section 186(3) of the CPA, Cap 20 R.E 2022; instead, the trial court presided in open court which is against the law and rights which minimize the appellant’s freedom to cross examine prosecution witnesses. 3 4. That, the learned trial magistrate misdirected himself in crediting the evidence of PW1 and PW2 whose evidence was absolutely immaterial and was full of doubts. 5. That, the learned trial magistrate grossly erred both in law and fact by convicting and sentencing the appellant without considering the defence of the appellant nor assigned (sic) for rejecting it as long as it is a general principle of law that, where the determination of the rights or obligation of a person is involved, a decision maker must give reasons for his decision. 6. That, the learned trial magistrate grossly erred both in law and fact by convicting and sentencing the appellant with evidence short of interpretation recorded contrary to section 211 of the CPA (Cap 20 R.E 2022), left the appellant unaware of the offences. 7. That, the learned trial magistrate strayed into error of law when he failed to note that the principles stipulated under section 50 and 51 of the CPA (Cap 20 R.E 2022) and section 127(2) of the Evidence Act, Cap 6 R.E 2022 were violated. The appellant prayed his appeal to be allowed, conviction be quashed, sentences be set aside and to be set at liberty. 4 The appeal was ordered to be argued by way of written submissions. The appellant had no representation while the respondent was represented by Ms Angela Mshana, learned State Attorney. In his submission in chief, the appellant argued the first and second grounds of appeal jointly. He submitted inter alia that the law is clear that the prosecution has the duty to prove its case beyond all reasonable doubts. That, despite calling five witnesses to pillar its case, the prosecution failed to prove its case to the standard required by the law. Moreover, the victims were criticised for their failure to report the incident to their grandparents and their relatives at the earliest possible opportunity. Furthermore, the trial court was faulted for failure to note that material witnesses like grandparents, Sharon and Happiness who were tagged by the victims were not called to substantiate what was stated by the victims. The appellant based his grievance on the prescribed principle of law that failure to call material witnesses entitles the court to draw adverse inference as held in the case of Aziz Abdallah v. Republic [1991] T.L.R 71. He was of the view that non-involvement of material witnesses distorted the proceedings which should be resolved in his favour. 5 On the third ground of appeal which is in respect of failure to conduct proceedings in camera contrary to section 186 (3) of the CPA (supra); the appellant submitted that evidence recorded in camera increases chances to cross examine prosecution witnesses and safeguard rights of parties. Hence, he believed that he was prejudiced and rights of the parties were limited. In respect of the fourth ground of appeal, the appellant faulted the victims for failing to testify on the complications involved in not reporting the incident when they were first sexually abused. The appellant discredited their credibility on this basis. In addition, the appellant was troubled by the fact that the offences were alleged to had been committed in front of one another without raising an alarm, while sexual offences are typically committed in secrecy. The appellant asserted that the victims provided immaterial evidence full of doubts. On the fifth ground of appeal, the appellant faulted the trial magistrate for failing to consider his defence. He argued that, at page 5 of the judgment, the trial court summarized his evidence without proper evaluation and without according weight to his defence. Consequently, he contended that he was denied the right to be heard, as the case was determined based on one side only. 6 On the sixth ground of appeal, the appellant contended that the evidence was recorded in violation of Section 211 of the Criminal Procedure Act (CPA), as it was not properly explained to him in a language he understood. In support of the seventh ground of appeal, the appellant argued that the principles under Sections 50 and 51 of the CPA were violated, as he was held in investigative custody for ten days without a magistrate's order extending the detention period. Also, the appellant asserted that evidence of the victims was received in contravention of Section 127(2) of the Evidence Act. He claimed that the trial magistrate failed to properly assess the children's evidence, as there was no determination of whether they possessed sufficient intelligence to understand the questions and provide rational answers. He further argued that the voire dire test was not properly conducted. The appellant insisted that the prosecution failed to prove the charge against him beyond reasonable doubt. He prayed the court to allow the appeal, quash the conviction, and set aside the sentences imposed upon him. In her reply, the learned State Attorney opposed all the grounds of appeal. 7 On the first and second grounds, Ms. Mshana submitted that the offences were proved through oral testimony of PW1 and PW2, as the victims identified the appellant as the perpetrator of sodomy and rape at the earliest possible opportunity. She relied on sections 61 and 62 of the Evidence Act, which stipulates that facts should be proved by oral evidence. To support her argument, she cited the case of Idd Omary v. Republic, Criminal Appeal No. 408 of 2021 (unreported) and asserted that evidence of PW5 proved penetration. She also referred the case of Seleman Makumba v. Republic, Criminal Appeal No. 94 of 1999 (2006) TZCA 96 (TanzLII), which established the legal principle that in sexual offences, the best evidence comes from the victim. That, since the victims’ evidence in this case irresistibly point to the guilt of the appellant, it was right for the trial court to believe that the victims were telling the truth and convicted the appellant. Replying to the allegation that material witnesses were not summoned to testify, Ms. Mshana submitted that, it is the duty of the prosecution to call material witnesses who can testify concerning the fact in issue. The learned State Attorney was of the opinion that the grandparents, Sharon and Happiness were not summoned to testify because they could have 8 given hearsay evidence as they did not witness commission of the offences. She relied on the case of George Jonas Lesilwa vs. Republic, Criminal appeal No. 374 of 2020 [2024] TZCA (Tanzlii) at page 22. Responding to the complaint that the victims failed to report the ordeal to their grandparents at the earliest opportunity, Ms. Mshana noted that, both victims reported the incident to their grandmothers who did not take any action against the appellant. Hence, both victims had to inform their friends at school which lead to the disclosure of the ordeal. Therefore, both victims herein reported the matter at the earliest possible opportunity. Thus, the allegation is baseless as it was held in the case of Elia s/o Richard Shoo v. Republic, Criminal Appeal No. 196 of 2021 [2024] TZCA 422 (10 June 2024) at page 13 where the Court stated that: “It is a fact that the victim would rather privately bear the ignominy and pain of such an experience than reveal her shame to the world or risk the rapist’s making good on his threat to hurt or kill her.” Concerning the allegation that the appellant stayed in custody for ten days, Ms. Mshana contended that the appellant neither cross-examined PW3, the Police Officer, nor raised the issue during his defence, as reflected at page 25 of the proceedings. 9 Replying the third ground of appeal which faults the trial court for failure to comply to section 186(3) of the CPA; the learned State Attorney submitted that evidence was received in camera, and the appellant had the opportunity to cross-examine the prosecution witnesses, as shown at pages 12, 14, 16, 18, and 22 of the proceedings. She referred to the legal principle that a party who fails to cross-examine a witness on a particular fact is deemed to have accepted the fact. In support, she cited Issa Hassan Uki vs Republic, Criminal Appeal No. 129 of 2017 [2018] TZCA 361 (10 May 2018) Tanzlii at page 16 & 17 and Nyerere Nyague vs Republic, Criminal Appeal No. 67 of 2010 [2012] TZCA 103 (21 May 2012) at page 6. On the fourth ground of appeal, where the appellant faulted the evidence of PW1 and PW2; Ms Mshana replied that evidence of PW1 and PW2 was material and proved the case beyond reasonable doubts. She relied on the case of Goodluck Kyando v. Republic [2006] TLR 363, emphasizing that the incident was reported to the grandmother, and any delay in reporting was due to threats made by the appellant to the victims. Opposing the allegation that the trial court failed to consider the appellant’s defence; Ms. Mshana argued that the defence of the appellant was duly considered at page 7 of the impugned judgment. She explained 10 that the appellant was convicted not because of his weak defence case, but because the prosecution’s case was proved beyond reasonable doubt. She re-cited the case of George Jonas Lesilwa v. Republic (supra). On the sixth ground of appeal, concerning the alleged violation of section 211 of the CPA, Ms. Mshana asserted that the court used simple language, and the appellant was able to cross-examine the prosecution witnesses. Meaning that he understood the language. On the last ground of appeal regarding violation of sections 50 and 51 of the CPA, the learned State Attorney replied that the appellant did not cross-examine the prosecution witnesses about police bail. Regarding the alleged violation of section 127(2) of the Evidence Act, Ms Mshana faulted the appellant for relying on dead law. She explained that, under section 127(2) as amended, a child of tender age is required only to promise to tell the truth and not lies, a requirement that was complied with at pages 11 and 12 of the proceedings. She supported her argument with the case of Ally Ngozi v. Republic, Criminal Appeal No. 216 of 2018. In conclusion, Ms. Mshana prayed for the dismissal of the appeal and urged the court to uphold the conviction and sentence imposed by the trial court. 11 Having considered the arguments for and against the appeal, the trial court records, and the grounds of appeal, I now proceed to determine the merits of the appeal. The grounds of appeal will be addressed seriatim. Starting with the first and second grounds of appeal, the appellant contended that the prosecution failed to prove the offence beyond reasonable doubts for two reasons: First, that they failed to call material witnesses, the grandparents, Sharon and Happiness, to whom the incident was reported at the earliest opportunity; second, that the manner of reporting the incident was selective and unexplained, as the first incident should have been the first to be reported. The learned State Attorney opposed the arguments of the appellant, stating that the purported material witnesses would have only given hearsay evidence. She emphasized that evidence which was adduced by the prosecution witnesses was sufficient to prove the case beyond reasonable doubt. Regarding the issue of failure to report the incident at the earliest opportunity, it was argued that the incident was first reported to the victims’ grandmothers, who did not take action, and was later disclosed to friends and teachers at school. 12 I have carefully considered the submissions on the two grounds of appeal vis a vis the evidence on record. Both victims, PW1 and PW2, testified that they were sodomized and raped by a person known as "Babake" whom they identified as the appellant during the trial. According to their evidence, PW1 at page 12 of the proceedings, stated that the appellant committed the offences against her four times, sometimes in his house and other times in their house. She further stated that she went with PW2 to the appellant’s house on two occasions, where similar acts were committed against them. As rightly submitted by the appellant, the circumstances surrounding the incidents in this case raise doubts. Since the offences were committed several times, it would have been expected that the victims would have reported the ordeal at the earliest possible time. Moreover, it is astonishing that PW1 stated that they used to voluntarily go to the appellant’s house with PW2 where they were sexually abused several times. Meaning that there was no apparent hindrance to reporting the incident promptly as they were free agents. Both PW1 and PW2 stated that they reported the incident to Sharon and Happiness, respectively. With due respect to the learned State Attorney, I concur with the appellant that the two friends: Sharon and Happiness 13 and the two teachers Sebastian and Oliva who took the victims to the police station were material witnesses. Their testimonies could have cemented the testimonies of the victims. Based on the doubts raised in the prosecution’s evidence, this court is convinced that the same must be resolved in favour of the appellant, as they sufficiently undermine the prosecution’s case. In light of the foregoing, the appeal is found to have merit. The appellant's conviction is hereby quashed, and the sentences are set aside. The appellant is ordered to be released forthwith unless lawfully held on other lawful grounds. Appeal allowed. It is so ordered Dated and delivered at Moshi this 10th day of March 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 10/03/2025 14