ABISINALI HUSSEIN KATIKILO Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 18939 OF 2024 (Arising from the decision of the District Court of Chemba at Chemba dated 15/11/2023 in Criminal Case No. 39 of 2023 before Hon. E.A. Mwakalinga, PRM) ABISINAL HUSSEIN KATIKILO...……………………..…………………… APPELLANT Versus REPUBLIC …………………….…………………………………………….... RESPONDENT JUDGMENT Date of last order: 02nd Sept, 2024. Date of Judgment: 11th Oct, 2024. E.E. KAKOLAKI, J. This is the first appeal by the appellant. Before the District Court of Chemba at Chemba the appellant was charged with the offence of Unnatural Offence; contrary to sections 154(1)(a) and (2) of the Penal Code, [Cap. 16 R.E 2022], found guilty as charged, convicted and sentenced to life imprisonment in its decision handed down on 15/11/2022, allegedly for carnally known KKK (PW2) against the order of nature, a child of 4 years old. In order to disguise her identity in this judgment I will be referring her as PW2. Briefly the facts giving rise to this appeal as discerned from the record are not difficult to narrate. The victim, a child of four (4) years when the incident occurred and a resident of Itowa village within Chemba District in Dodoma Region, was living with her aunt (PW1) and appellant in the same village. On the 06/06/2023 at 13.00 hours, PW1 who was at home sick noticed that PW2 was missing within the compound and asked Mwajabu Ramadhan a child also 1 of 9 years old to search for her around. The said Mwajabu managed to find her (PW2) in possession of a piece of sorghum stem (sweet) and Tshs. 300/- which she was informed was given to her by Abisinali. On inquiring as to where was she, the scared child (PW2) who seemed to walk improperly was afraid to disclose to her aunt before the latter decided to undress her underpants while crying, on became suspicious of her movement. That is when she notice some sperms on her underpants and feaces on her buttocks before the child disclosed to her that Abisinali had penetrated her against the order of nature. The incident was reported to the close relatives and village office at Jagalo that issued them with a letter to report the matter which was presented at Mjiro police station. After reporting the incident a PF3 issued to the victim and presented to Mjiro Health Center on the same date where she was examined by a clinical officer (PW3) who established that, her anus was penetrated as she had feaces and sperms coming from there and filled in the PF3 (exhibit P2). It appears the appellant was arrested immediately and taken to police station as per the evidence of PW4 before he was arraigned in Court facing the charge of Unnatural Offence which he denied. Upon completion of trial, the trial court having evaluated and weighed evidence from both sides took the view that, the charge facing the appellant was proved by the prosecution beyond reasonable doubt, found him guilty of the offence charged with, convicted and sentenced him to life imprisonment, the decision which displeased the appellant hence the present appeal. In his 2 petition of appeal the appellant fronted nine (9) grounds of appeal which can simply be summarized as follows. One, the prosecution failed to prove its case against him beyond reasonable doubt, second, failure of the trial Court to address contradiction in the evidence of PW2 and PW4 on the place of incident, third, DNA test was necessary to establish if sperms found in PW2’s anus were his, fourth, PW2’s age was not proved, fifth, penetration was not proved, sixth, he was denied supply of the complainant statement and the memorandum of matters not in dispute was not read and explained to him, seventh, he was not informed of his rights under section 162 of the Criminal Procedure Decree and lastly that, his defence was not considered. When parties appeared in Court for hearing of the appeal on the date scheduled Mr. Gothard Mwingira and Ms. Magreth Fyumagwa, learned State Attorneys appeared representing the Respondent while the appellant proceeded on his own unrepresented. On the floor first to prosecute his appeal, the appellant having informed the Court of his illiteracy in law prayed it to consider all of his grounds of appeal and allow his appeal by setting him free. In response to the raised grounds of appeal by the appellant Mr. Mwingira commenced his submission by informing the Court that, the respondent was contesting the appeal and indicated his readiness to react to each and every ground of appeal. Starting with the first ground he said, it is not true as contended by the appellant that his case was not proved beyond reasonable 3 doubt as in the charge of Unnatural Offence that faced him under section 154 (1) (a) of the Penal Code, the prosecution was duty bound to prove only three elements of the offence namely, one, victim's age, second, penetration and third, participation of the appellant in the commission of an offence. On the first element on victim's age she submitted, there is evidence of PW1 and the birth certificate exhibit P1 proving that she was born on 27/11/ 2018. On the second element he contended, there is evidence of PW2 (victim) whose evidence was recorded in compliance with section 127(2) of the Evidence Act, who identified to the effect that, appellant is the person who took him to the maize farm and sodomised her as seen at page 12 of the typed proceedings. Her evidence on penetration he argued, is corroborated by PW3 (doctor) at page 17 of the typed proceedings who after examining her noted presence of sperms mixed with stool coming out of her anus hence a conclusion that she was penetrated as she was also bruised in her anus. Further to that he elucidated, there was a PF3 exhibit P2 reflecting the findings of PW3. Further corroboration on penetration according to him, comes from PW1 (PW2's aunt) in that after inspecting the victim she noted some fluids and stool coming out of her anus which she identified to be sperms. With such evidence from these three witnesses he submitted, penetration was proved beyond reasonable doubt. On the third element it was her submission that, evidence of PW2 (victim) was very categorical as she identified the appellant as the person she had known very well before since were living close. This witness he explained, 4 mentioned the appellant by his name since the fact that appellant was known to her before was never challenged by him during cross examination. He went on submitting that, PW2 did not end up there as she also mentioned the appellant before PW1 at the earliest possible time, the act which is counted as an assurance of her reliability especially on identification of the appellant. On the issue of reliability of witness the learned State Attorney relied on the case of Marwa Wangiti Mwita and Another Vs. R, [2002] TLR 39. With this cogent evidence she submitted it is clear that, prosecution case was proved beyond reasonable doubt hence this ground lacks merit. He prayed to fortify his prayer with the case of Allen Francis Vs. R, Criminal appeal No. 327 of 2019 (CAT) at page 16. On the 2nd ground that the trial court erred to consider the discrepancy in PW2 and PW4’s evidence in arriving at his conviction she retorted that, inconsistencies in their evidence on the place of commission of an offence does not injure prosecution case nor benefit the appellant since the victim's evidence on what happened at scene of crime is sufficient to ground conviction without any other corroborative evidence, as not every discrepancy can injure prosecution case. In cementing his stance the learned State Attorney referred the Court to the case of Shaban Haruna @ Dr. Mwagilo Vs. R, Criminal Appeal No. 396 B of 2017 (CAT) at page 19, on the discrepancies that might lead the case to flop. He thus prayed the Court to dismiss this ground. 5 Regarding the 3rd ground on the need to conduct DNA test for proving that sperms found in the victim's anus were from the appellant he responded that, it is not a mandatory requirement to conduct DNA test to prove sperms donor in order to prove sexual offence as held in the case of Saimon Emmanuel Vs, R, Criminal Appeal No. 531 of 2017 (CAT) Tanzlii at page 12, that DNA test in itself does not prove rape as evidence of victim can sufficiently prove it. On the 4th ground he stated, the same has no merit as evidence of PW1 sufficiently proved victim's age. Regarding the 5th ground on the complaint that, penetration was not proved by PW3 or the exhibit tendered he retorted that, it is untrue contention since PW2, PW3 and exhibit P2 all sufficiently proved this element. In the 6th ground of appeal on non-compliance of the provisions of section 10(3) and 9(3) of the CPA, his response was that the appellant has failed to state on how was he prejudiced by the non-compliance since he had an opportunity to cross examine all the prosecution witnesses and later on successfully entered his defence. Replying on the 7th ground of appeal on the trial Court’s failure to exercise appellant’s rights under section 162 of the Criminal Procedure Decree [Cap. 14), he said the complaint is unfounded since the decree does not apply in the mainland Tanzania save for Zanzibar. He thus prayed the court to disregard it. In the 8th ground on the complaint of trial court’s contravention of the provisions of section 192(3) of the CPA for not informing and causing the memorandum of undisputed matters to be read to the appellant during 6 preliminary hearing he contested the allegation arguing that, it is not true as it can be seen from page 5 of the typed proceedings that the memorandum of undisputed facts was read to him hence the ground is baseless. Lastly was the 9th ground on the assertion of trial court’s failure to consider his defence. Submitting in response Mr. Mwingira informed the Court that, the complaint is unfounded as the defence case was considered but found not to have shaken prosecution case since the trite law is that defence evidence is taken serious when defeating prosecution's evidence,. In this matter he argued, going by appellant’s evidence as narrated at page 29 there is nothing material out of it that would try to shake prosecution's case. He however held the suggestion that, should this Court find that his defence was not considered still is clothed with powers to step into shoes of the trial court, re-evaluate the evidence and then come up with its own findings. He therefore in totality prayed this Court to find the appeal is wanting in merit and dismiss the same. On the appellant’s side he reiterated his prayer for this Court to allow his appeal while insisting that, the alleged sperms found in the victim's anus were never proved to be his. Otherwise he reaffirmed his trust to this court believing that, it could re-evaluate the evidence on record and come up with the findings that he never commit any offence hence release him from jail. I took time to revisit the evidence on record and consider the submission by parties in a bid to address and determine this appeal against the raised grounds of appeal by the appellant. As alluded to above in this judgment I am 7 intending to address each and every ground of appeal. To start with the first issue which to some extent covers most of the grounds of appeal the assertion by the appellant is that, the prosecution case was not proved beyond reasonable doubt against him on the charge of Unnatural offence facing him. As correctly submitted by Mr. Mwingira in proving the charge of Unnatural Offence under section 154(1)(a) of the Penal Code, the prosecution was enjoined to establish existence of three elements namely the penetration, age of the victim and identity of the culprit as also well spelt in the case of Allen Francis (supra) where the Court of Appeal had this to say: ’’…proof of the offence under section 154 (1) (a) of the Penal Code entailed proof of three ingredients namely; the penetration, age of the victim and identity of the culprit.’’ Guided by the above decision on the ingredients of the offence of Unnatural Offence, to start with the element of age, I find the evidence of PW1, PW4 and the birth certificate sufficiently proved PW2’s age that she was born on 27/11/2018 and then aged 5 years old at the time of testifying. On the ingredient of penetration the law is settled that, in sexual offences the best evidence comes from the prosecutrix (victim). See the cases of Seleman Makumba Vs. R, [2006] TLR 379 and Hamis Halfan Dauda Vs. R, Criminal Appeal No. 231 of 2019 (CAT-unreported). In this case having glanced at PW2’s evidence on what happened to her it is evident she told the trial court that, was penetrated by the appellant in her anus using his penis after 8 undressing her underpants and bending her in the maize farm closer to her home to the extent of excreting feaces/stool. On this fact her evidence is corroborated by both PW1 and PW4 who at different time removed her underpants and found sperms on it while her anus seen to have sperms, feaces and bruises the findings which were remarked by PW4 in the PF3 (exhibit P2). Like the trial Court this Court is satisfied that, the evidence adduced by prosecution witnesses on existence of sperms, feaces and bruises in PW2’s anus sufficiently proved the element of penetration hence a disregard also to appellant’s complaint in the 3rd ground that given PW3’s evidence the alleged sperms found coming from PW2 ought to have underwent DNA test to prove that were his. I so find as the settled law is that, in sexual offences DNA test is not mandatory as oral evidence can fill in the gap to establish a link of involvement of the accused in commission of an offence. See the case of Cristopher Kandidius @ Albino Vs. R, Criminal Appeal No. 394 of 2015 (CAT-unreported). Regarding to appellant’s identity the only evidence is that of PW2 (victim) whose evidence is recognized by the law as the best one. It was in her evidence that, she was known to the appellant before whom she mentioned by his name and identified in court as Abisinali since he was living close to their home. She explained that, it is the very person who took her from the place where she was playing to the maize farm where he undressed her trouser and inserted his penis in her anus to the extent of causing feaces/stool 9 to come out. And that she reported the incident to her aunt (PW1). And when cross examined it is noted this witness remained firm that, the appellant asked her not to scream as in the said maize farm were only two as houses were not close to the farm. On his side the appellant during his defence apart from claiming that was not arrested at the scene of crime and that, he did not commit the alleged sodomy to PW2 it is was his further assertion that, he had bad blood relationship with PW2’s father. He however failed to state as to how that misunderstanding with PW2’s father was connected to his case since he confessed to have no any conflict with the victim herself or PW1. I find appellant’s denial to be general one not denting solid evidence by the prosecution especially on his identity. I so hold as he does not dispute to have been known by the victim before the incident. The mere fact that was not arrest at the scene does not necessarily mean that he did not commit the said offence to PW2, as the offence was committed in the maize farm during day time and not in an open space for him to await there to be arrested. I do not find any reason as to why PW2 could testify lies against him and not any other person. As if that is not enough PW2 mentioned her assailant to PW1 as Abisinali (appellant) soon after commission of the said offence something that gives assurance of her reliability as it was held in the case of Marwa Wangiti Mwita and Another Vs. R, [2002] TLR 39. Since the appellant was well known to the victim (PW2) before this Court entertains no doubt that, he was identified by PW2 as the person who penetrated her anus. With such strong 10 evidence on the identity of the appellant and the place where the offence was committed I find no merit also in appellant’s contention in the 2nd ground that, there was discrepancy in PW2’s evidence as compared to that of PW4 on the place of commission of an offence. I hold that view as in the presence of victim’s evidence disclosing the scene of crime as the maize farm, the contrary evidence by PW4 that it was in the appellant’s room cannot be taken as discrepancy or contradiction given the true fact the appellant himself declared during his defence that was living with his parents, thus could not have rented a room. As it is a settled fact now that the appellant did not own any room then such piece of evidence from PW4 cannot be held to have affected prosecution case. In view of the above deliberation I do not find merit in the 1st, 2nd and 3rd grounds of appeal as the charge facing the appellant was proved beyond reasonable doubt. Next for determination is the 4th ground of appeal which I think need not detain this Court as it is already determined in the first ground that, victim’s age as established to the required standard. This ground I hold is bound to fail. As to proof of element of victim’s penetration as raised in the 5th ground, I also find the same to be devoid of merit for being determined in the first ground above that, it was proved to the required standard since penetration however slight it is as provided under section 130(4) of the Evidence Act suffices to establish rape or sodomy. Moving to the 6th and 8th grounds of appeal on the appellant’s failure to be supplied with copy of complaint’s 11 statement and have the memorandum of undisputed matters read to him, having examined the complaints I find no merit in them. I embrace Mr. Mwingira’s proposition that, non-supply of the said copy of witness statement did not occasion any injustice nor prejudice him for being able to cross examine the prosecution witnesses and enter his defence properly. As to the assertion that the memorandum of matters not in dispute was not read to him, it is true there was non-compliance of the provision of section 192(4) of the Criminal Procedure Act, [Cap. 20 R.E. 2022] (the CPA). However, the law is settled that violation of procedures during preliminary hearing does not vitiate proceeding. Since the prosecution summoned all necessary witnesses and tendered documentary exhibits in proof of all ingredients of the offence as if a preliminary hearing was not conducted, I do not see how such violation of law caused any prejudice to the appellant. I therefore find the 6th and 8th grounds of appeal wanting in merit. I now move to the 7th ground in which the complaint by the appellant is on violation of the provision of section 162 of Criminal Procedure Decree [Cap. 14]. I also think this ground is unmerited as the said law is inapplicable in Tanzania mainland save for Zanzibar. Lastly is the 9th ground on failure by the trial court to consider appellant’s defence. Having revisited the impugned decision it is true appellant’s defence was not sufficiently considered by the trial court. However, the same had been dealt with herein above when dealing 12 with the 1st ground and found not to have dented prosecution case. In view of that this ground lacks merit as well. In totality this appeal is wanting in merit as the same is hereby dismissed in its entirety. It is so ordered. Dated at Dodoma this 11th of October, 2024. E. E. KAKOLAKI JUGDE 11/10/2024. Court: The Judgment has been delivered at Dodoma today on 11 th day of October, 2024, in the presence of the Appellant in person, Mr. Gothard Mwingira, State Attorney for the Respondent and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 11/10/2024. 13