HUKUMU KALOKO FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO 22548 /2024 Ref 202408122000022548 (Appeal From the Decision of The District Court of Kinondoni at Kinondoni in Criminal Case No. 275 of 2023 dated 3rd Day 01 July 2024 H. Mwailolo (SRM) RASHID JUMA KALOKO............................................................. APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT JUDGEMENT 19th & 24th March 2025. KIREKIANO J: Before the District Court of Kinondoni, the appellant, Rashidi Juma Kaloko, was charged and convicted of an offence of unnatural offence contrary to section 154 (1)(a) and (2) of the Penal Code [Cap 16 RE 2022]. According to the charge, it was alleged that the appellant, on diverse dates of March 2023 to May 2023 at the Chasimba area within Kinondoni District in Dar es Salaam Region, the appellant did have carnal knowledge of a boy aged nine years against the order of nature. 1 The boy's name was stated in the charge; however, in this judgment, I shall, for a good reason, sufficiently refer to him as “the Victim.” The accused pleaded not guilty. To prove the charge, the prosecution paraded four witnesses: PW1, the victim; PW2, Miraji Amiri; PW3, Abdallah Ramadhani Mwinchande; and PW4, Dr Dede Dotto. As such, two documentary exhibits, the birth certificate and PF3, were also admitted as exhibits P1 and P2, respectively. The substance of the prosecution case was that PW2 was the victim's father. The victim was born on 11/10/2013 and was aged 9 years, this was according to the birth certificate (Exhibit P1). On the dates of 22 and 24 May 2023, the victim went home, and PW2 noticed that the victim had defecated on his pants. Upon curiosity, he asked the victim about this problem. The victim told him in the first place that he had stomach pain. Since this problem was repeated the other day, he decided to cane the boy. It was in this the victim told him that the problem was that he was sodomised by an adult man, whom he described by his tattoo on his body, and would generally wear a hat known as “Pama.” 2 On 25th May 2024, PW2 reported the matter at Madale Police Station. The police issued PF3 for the victim’s medical attention. The following day, that is, on 26 May 2024, the victim identified his abuser; thus, PW2 sought the assistance of a ten-cell leader, Abdallah Ramadhani Mwinchande (PW3), to arrest the appellant. It was PW2's testimony that the appellant was arrested based on the description given by the victim, which stated that there was a tattoo on his body and he had a hat (Pama). In his version, PW3, a local leader who accompanied PW2 to arrest the appellant, said that the victim told him that he knew his assailant, but PW2 also knew the suspect. When they went to the shop where the appellant was present, the victim pointed at him and called the appellant “Rashid.” The appellant was thus arrested and taken to Wazo Police Station. It was his testimony that he was satisfied that the appellant had a tattoo on his hand, as described by the victim. The victim was examined at Mwananyamala Hospital by PW4 Dr Dede Doto. He said the victim was about 10 years old. His finding was that the victim’s sphincter muscles were so loose with bruises and in bad condition. 3 His opinion was that there was evidence of penetration. He recorded his findings in the PF3, tendered as Exhibit P2. On his part, the victim, PW1, testified that in March 2023, at about 21.00 hrs, his father (PW2) sent him to buy a mobile phone voucher. At the shop, he saw a man sitting beside the shop. There was a white electricity light, which enabled him to see that male person. He was not familiar with that person and had never met him before. This person called him and took him to a narrow path, undressed him, and sodomised him. He then gave him TZS. 1,000 and threatened to kill him if he told anyone about what happened. He said that person lived in a canvas and repeatedly sodomised him about ten times and gave him TZS 1,000. The crime scene was in a house where he lived with his colleagues or his residence, built with canvas. The accused's defence was complete denial. He called two witnesses, Sekela Nsajigwa Mwaisaka and Edga Leopard Mugasha, who testified as DW2 and DW3. His line of defence was that the charges against him were cooked up. The victim did not know him before. He had only a few days at Tegeta. He 4 was arrested just because he has a tattoo, while many young men have tattoos. He also learnt from a nurse that the victim was already sodomised before he was implicated. He said he lived with his sister, denying ownership of residence as the crime scene. He also attacked PW4 Dr Dede's evidence saying that no sperms were found in the victim’s anal part, nor were his sperms tested. He said, PW1 was beaten, and that’s why he mentioned him. DW2 Sekela Nsajigwa Mwaisaka was the appellant's sister who refuted the evidence that the appellant had a rented room. She said she stayed with the appellant in one house but did not keep company every time. DW3 Leopard Mugasha said the fateful days alleged he was in Mwanza, and when he came back and asked the appellant about the accusation, he denied any wrongdoing. Based on this evidence, the trial court found that the charge was proved beyond reasonable doubt. The trial court was convinced by the proof of identification and the testimony of the victim on penetration, which was corroborated by the doctor's findings. Dissatisfied with the above decision, the appellant filed this appeal with four grounds of appeal, thus; 5 1. That the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on the evidence of Pw1 (victim), which was recorded contrary to section 127 (2) of the evidence act. 2. That the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on incredible visual identification. 3. That the learned trial magistrate grossly erred in both law and fact by convicting the appellant base on incredible, contradictory and uncorroborated evidence of prosecution witnesses. 4. That the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on the case that was not proved to the hilt. The hearing was by way of written submission. On the first ground, the appellant submitted that the law directs that a child of tender age may give evidence without taking an oath or making an affirmation and that a child must promise to tell the truth before giving evidence. He said the record shows on pages 8 and 9 that PW1 affirmed and promised to tell the truth, PW1 Victim 10 years Muslim Affirm, and 6 Promise to tell the truth. Based on this, he submitted that the procedure under section 127(2) TEA was not followed. On the second ground, he argued that PW1 did not sufficiently identify the appellant. Going through the evidence of PWl, he did not state the position and distance from the said source of light to the scene. The time and length spent to commit the offence were sufficient for the court to satisfy that the said visual identification was watertight and that there was no possibility of mistaken identity. He cited ISSA MGARA @ SHUKA V.R Criminal Appeal No. 37 of 2005. As such, he argued that there was not enough description of the assailant, citing JARIBU ABDALLAH V.R [2003] TLR 271, which states that a bare assertion that PW1 identified the appellant without giving a prior description of an unknown suspect before seeing him in the dock renders the identification evidence valueless. On the third ground, the learned trial magistrate grossly erred in both law and fact to convict and sentence the appellant based on the incredible, contradictory and uncorroborated evidence of the prosecution. According to him, the date of the offence was not mentioned by any prosecution witness. 7 As such, there was inconsistency in how many times the victim was abused. Additionally, the evidence regarding the victim's age, specifically whether he was 9, 10, or 11 years old, is featured in the prosecution's case. He cited Aloda William and Another v Criminal Appeal No. 256 of 2006 (unreported), which stated that the credibility of witnesses could be assessed by considering all the evidence. On the fourth ground, the appellant argued that the charge was not proved beyond doubt because the witness did not tender enough information to suggest when (date) the alleged offence was committed. On their part, the respondent asserted that the Magistrate correctly assessed the credibility and competence of the child of tender age to give evidence presented as PW1 and that the requirements of Section 127 (2) of the Evidence Act [Cap. 6 R.E.2019] were adequately adhered to, as PW1 was made to promise to tell the truth before giving his evidence. Additionally, it has not been demonstrated how the stated complaint, if true, resulted in any prejudice to the Appellant in this case. As for the second and third grounds, the respondent took a stance that the trial court correctly assessed evidence on identification, the fact of visual 8 identification, that is, the presence of intense electricity lights on the crime scene, and the fact that the victim was abused more than nine times. It is further argued that the best evidence in this case was that of the victim, and reliance was made on the case of SELEMANI MAKUMBA VERSUS REPUBLIC [2006] T.L.R. 149. According to the respondent the victim's evidence was sufficient and was corroborated by PW4, who examined him medically, and tendered his report, admitted as Exhibit P 2. On the third ground, it was argued that the appellant, in his submission in chief, has failed to clarify how the court should discredit the paraded prosecution witnesses and for what reasoned grounds. The crime committed was done at different and repeated frequencies on PW1, and failure to state a particular date alone does not water away the prosecution case. In his rejoinder, the appellant maintained that when a promise is made, it must be documented before evidence is presented, which was not done by PW1. In the absence of PW1's promise, his evidence is inadequate. He relied on the case of OMARY SALUM @ MJUSI, criminal appeal No. 125 of 2020 (unreported), which emphasised that failure to comply with section 127(2) of the Evidence Act renders the testimony of a witness of tender age worthless. 9 In respect of the third and fourth grounds, the appellant argued that there is nothing in the court record to show that PW1 described the appellant or the intensity of the light. He relied on the case of AYUBU ZAORO V.R., Criminal Appeal No. 177 of 2004 (unreported) that where a witness sees the accused for the first time, there is a need for the witness to describe the accused (appellant) in detail. He said he had a tattoo on his right shoulder. These tattoo marks are located on his forehead and hand. In other words, this was a dock identification. I wish to start with the first ground, which involves non compliance with Section 127 (2) of the Evidence Act Cap 6. In this appeal, the appellant argued that the procedure was flawed because the victim, who was of tender age, affirmed and promised to tell the truth contrary to the procedure under section 127 (2) of the Tanzania Evidence Act. Reading from the record, the same shows thus: Prosecution Case Opens and conducted in Camera Pw1 “Victim”, 10 Years Muslim Affirmed and Promise to tell the truth Xd By Public Prosecution 10 The appellant complains that numerous case laws exist in this area to the effect that the noncompliance of the procedure renders the evidence useless. It is common ground that has been the position as stated in a number of decisions including; Godfrey Wilson v. Republic, Criminal Appeal No. 168 of 2018, Issa Salum Nambaluka v. Republic, Criminal Appeal No. 272 of 2018, Ally Ngozi v Republic, Criminal Appeal No.216 of 2018 and Msiba Leonard Mchere Kumwaga v. Republic, Criminal Appeal No. 550 of 2015 In substance, the jurisprudence in this area was that the court should ask the child a few pertinent questions to determine whether the child witness understands the nature of an oath. If the child witness responds affirmatively, they can proceed to give evidence on oath or affirmation. If the child does not understand the nature of an oath, he or she should, before giving evidence, be required to promise to tell the truth and not to tell lies. In this appeal, it is pertinent to note that the victim gave his evidence on 19 December. 2023 after the amendment of section 127 of the Tanzania Evidence Act Cap 6 as amended by Act No. 11, The Legal Sector Laws (Miscellaneous Amendments) Act, 2023. The amendment brought a new section thus; 11 “(7) Notwithstanding any other law to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible. With this note, while I agree that the procedure under section 127 (2) TEA was not followed to the letters, the evidence of the child victim was still admissible. For that matter, in this appeal, this shall remain on record to be re-evaluated. On the issue of identification stated in the second ground, reading from the record, the identification of the victim abuser was visual; the victim stated that he identified him by the tattoo on his body and would generally wear a hat known as “Pama.”. I have considered the appellant's complaint that this evidence was weak. Admittedly, visual identification is weak evidence, but this does not mean the same is worth less. According to the record, it is the only victim who provided evidence of identification. In Amani vs. Republic [1980], TLR 250 was a celebrated case on visual identification. The Court stated: “…In a case involving evidence of visual identification, no court should act on such evidence unless all possibilities of mistaken identity are eliminated and that the court is satisfied that the evidence before it is watertight…….” 12 What is essential is that the evidence on conditions favouring correct identification is of utmost significance. Accordingly, I have also considered the case relied upon by the trial magistrate, namely, RAYMOND FRANCIS V. REPUBLIC [1994] TLR 100. Now, the evidence at issue here is that the person who abused the victim was identified by tattoo and would normally wear a hat (Pama). The victim also stated that there was electricity light. Reading from the record, nothing indicates that these two aspects —tattoo and hat —were exhibited in court during dock identification to bolster the victims’ evidence of identification. I have also considered the submission by the Republic, which argues that, given the decision in Selemani Makumba, the said victim was the best witness. With respect, this case is cited out of context; the decision laid a rule that whether a victim of a sexual offence was penetrated, then the victim’s evidence becomes he best evidence. The contending issue here is the identification of the victim's assailant or, to put it differently, the identification leading to the appellant's arrest. According to the victim he said, I told my father that the person who was sodomising me was known as Rashidi. Now, reading from the evidence of 13 the victim's father, who testified as PW2, on what he heard from the victim he said. He told me that he was sodomised by adult person. I asked him if he can identify that person is shown and he told me that he can identify him. He told me that, was sodomised by that man more that nine (9) times. He told me that the man sodomising him was with totoos in his body and was always wearing pama hat. In the following day of 25/05/2023 I took my son (Luqman) to Madale Police Station, were I reported the incident to one police Officer namely Pamela. It is not clear why, having reported to the police, the police did not assist the said PW2 in arresting the suspect if the victim identified him in the first place. Moreover, the said Police Officer, Pamela, who initially heard PW1 and PW2, did not testify. Her evidence here was crucial to cut the crap on the contending fact whether the victim knew his abuser in the first place. She was a material witness. It is the law that a material witness is any person who is better positioned to explain certain missing links in the case. See Ahamad Salum Hassan @ Chinga vs Republic (Criminal Appeal No. 386 of 2021) 14 [2023] TZCA 44 (22 February 2023). Failure to parade this witness leaves the credibility of PW1 on identification in doubt and unsafe. I say so because, one, it is on record that the victim was chastised by his father before telling what happened to him; while that may be understandable, naming an assailant the way he did, thus, a man with tattoos in his body and was always wearing Pama hat. Needed more evidence to conclude with certainty that it was the appellant. Two, it is not shown if the victim could name his abuser when the matter was reported to the police. I am guided by the decision in Marwa Wangiti Mwita v. Republic [2002] TLR 39, where the CAT held that a witness's ability to name a suspect at the earliest opportunity is a significant assurance of their reliability. This missing link could be sealed by the police officer who heard about the complaint in the first place. Her absence derogates the prosecution case. Based on the reason I have alluded to above; I find merit in the second ground of appeal. The appellant's conviction was rested on weak and unreliable evidence of identification. Ultimately, I allow the appeal on this ground, quash the conviction, and set aside the sentence imposed on the appellant. I also order 15 the appellant's immediate release from prison unless held for other lawful cause. A.J. KIREKIANO JUDGE 24.3.2025 COURT: Judgement delivered in presence of the appellant and in presence of Miss Grace Kibaki learned state attorney for the respondent. A.J. KIREKIANO JUDGE 24.3.2025 16