20050411 TZHC Dar es Salaam

\ , · . ..:~-, IN THE HIGH COURT OF TANZANIA ., · AT DAR ES SALAAM. CRIMINAL APPEAL NO. 132 OF 2004 MATH.E-W MICHAEL SIMBA ............. APPELLANT ·~., . VERSUS • ,-!b-. " ... '-*~ :~. . . .,.,.·· .. • THE REPUBLIC .......... RESPONDENT JUDGMENT MASSATI.l. The Appellant was charged of and convicted of the count of unnatural offence contrary to S 154 (1) (2) of the Penal Code as amended by Act 4/98. He was sentenced to 30 years imprisonment. It was alleged before the Kibaha District Court which allegations were denied by the appellant; that on or between the 10th April 2003 and 11th April 2003 at Kongowe Bamba Area, within Kibaha District . Coast Region he had carnal knowledge of one RAMADHANI 5/0 MOHAMED (aged 4) against the order of nature. The· prosecution case consisted of the victim, RAMADHANI MOHAMED (PWl) ZAINABU ALLY, the victim 1s mother (PW2) and ALICE SIMWINGA the medical witness (PW3). PWl, after the trial court had found that he did not understand the nature of an oath, gave an unsworn evidence. He said on 9.4/2003 at.8.pm he was at a ..' • J Pombe shop with his mother. The Appellant took him to his home and sodomised him. He felt painful. Next morning his mother took him to the police station where a PF 3 was obtained and went to hospital at Tumbi. Examined by the court this witness said he was forcefully taken from his mother and forcefully undressed. PW2 said her son was playing outside their home where there is also a Pombe shop. She was cooking inside, and when she called PWl, he was no where to be found. She reported the loss at Kongowe police station. Next morning her son surfaced. PWl told her he had been taken by the appellant. On inspection, she found some sperms in his anus. She reported to the police who issued a PF 3. She tendered it as Exh Pl. PW3, an Assistant Medical Officer confirmed that after examining PWl he concluded that he was indeed sodomised although he didn't see any sperms. That examination was done on 10/4/2003 but PWl went on with the treatment up to 5/5/2003 when he filled in the PF3. On cross examination by the appellant PW3 said he had to use a finger to know if the patient felt any pains. He admitted however that the boy was sent to hospital 6 days after the incidence; in response to a question from the court. At the close of the prosecution case the court found that the Appellant had a case to answer. The Appellant who gave evidence on oath simply said that on 10/4/2003 at 10 pm he was at his residence at Ngeta's house hold 2 where he works. After his arrest he was taken to Kongowe police station and charged with the offence. In cross examination the Appellant said the victim's mother (PW2) was once his fiancee before they partied. Therefore since he now has another fiancee PW2 decided to fabricate this case. ·Examined by the court the Appellant opined that examination by Finger was not conclusive proof that PWl was sodomised. He said he had no wife. Since the appellant had no witness the defence closed its case. In his judgment the trial court magistrate decided to believe the evidence of PWl as true and was supported by the evidence of PW 3, the medical expert. He also took into account the fact that the Appellant had no family and therefore to borrow his words "It is obvious that was sodomised by this accused". On the basis of which he found that the prosecution case had been proved beyond reasonable doubts, and so convicted the Appellant. The Appellant is now aggrieved by the conviction and sentence and has appealed to this court. He has filed a long memorandum of appeal with 4 grounds complete with arguments supported by authorities. I also allowed him to argue any, other grounds which he could have. He said first the trial court was biased because it did not order him to be medically examined. Secondly he said that the medical witness did not see anything. He thus implored this court to allow his appeal. Ms Mawalla learned state Attorney confined her 3 response to the grounds as raised in the appellant's Memorandum of Appeal to which I now turn. The first ground of appeal criticizes the trial court for not ordering the production of the previous statement of PWl and PW2 in terms of S 166 of the Tanzania Evidence Act 1967 in order to corroborate their testimony. MS Mawalla's· answer was that S 166 of the Evidence act was only applicable where such statements were required to show consistency or contradictions with what the witnesses testified in court. She submitted that in the present case it was not necessary because even the contradiction on the date of the offence was only minor. It is my view, that this ground of appeal could not be more misplaced. In the arrangement of sections, section 166 appears in part III of the Evidence Act which relates to QUESTIONS OF WITNESSES. This section could only apply if it arose during examination, if in the course of which , it is clamed that what the witnesses were saying were inconsistent with their previous statements. Statements are not therefore produced as a matter of course. They are produced if occasions arise. In the present case no such occasion arose. Neither the Appellant nor the prosecution had brought it up during the trial. On the premises I agree with MS Mawalla, learned state attorney, and 1 dismiss this ground of appeal. 4 In the second ground of appeal the Appellant attacked the trial court for not conducting a voire dire test. The decision of SHOZI ANDREW V. R Cr. App. 9/19987 was cited as authority. Ms Mawalla submitted that the law of evidence was complied with, and SHOZI ANDREW'S Case was distinguishable. If I understand the Appellant well, I think he has argued that voire dire test was not conducted at all in accordance with the law. Therefore it was wrong on the part of the trial magistrate to have acted on his evidence especially in view of the contradiction in PWl's evidence as to how he was taken by the Appellant. To some extent the Appellant could be right. In JAMES SANDONA V. REPUBLIC Criminal Appeal No 93 of 1999 (unreported) the Court of Appeal of Tanzania said:- " ... the unsworn or unaffirmed evidence can only be taken, if the court forms the opinion that the witness is possessed of sufficient intelligence to justify the reception of his or her evidence . To be able to form that opinion the court conducts the voire dire test examination. The question and answer, at least the answers in the voire dire examination, should be recorded in the proceedings". 5 From the record of the proceedings in this case the trial court does not appear to have complied with that rule. This was wrong. But it has been held in a number of cases beginning with BANDOMA'S case, JUMU CHOROKO V R (Criminal Appeal No. 23 of 1999; and DEEMCAY DAATI AND OTHERS V R Criminal Appeal No 80 of 1994) all recent decisions of the Court of Appeal that such irregularly is innocuous if there is corroboration. In the present case even corroboration is not necessary in terms of S 127 (7) of the Evidence Act 1967 as amended by Act 4 of 1997, If the court believes that the child was telling the truth. Further more, in this case the trial court not only found PWl as telling the truth but also that his evidence was corroborated by the evidence of PW3 . This means that this ground of appeal is also without substance. It too; is dismissed. In the third ground of appeal the appellant capitalized on the contradictions in the prosecution case, especially as to how the victim was taken from his mother, the delay in taking him to hospital and the unsatisfactory nature of the medical evidence. He cited the Court of Appeal decision in SAID MATULA V R (1995, TLR. 3 in support of his arguments. Ms Mawalla's response was that whatever contradictions there might have been they were not material, and only minor especially in view of the provisions of s 127 (7) of the Evidence Act 1967. 6 I_ I quite agree with the Appellant that, where there are contradictions and inconsistencies the trial court is duty bound to address itself on those contradictions and resolve them or make a finding whether such contradiction are minor or go to the root of the matter. I also agree that in the present case there were some contradictions and the trial court did not address itself to them. However SAID MATULA'S Case was that of murder and the evidence of the two children who gave unsworn evidence was contradictory. The Court of Appeal found there were material contradictions and had an effect on the conviction. I think this case is different from the one above. I do not think it is material whether or not the child (PW1) in this case left with or without the consent of his mother. It would still be an offence even if the mother had consented to his being taken. And here Identification is not in issue. I do not also see merit in the criticism that the victim was taken to hospital after 6 days According to the PF 3 ( Exh PI) and PW3 the child was taken for examination on 10/4/2003 but had to continue with treatment up to 5/5/2003 when the PF 3 was filled. I do not therefore think that PW3'S answer to a question by the court that the child was sent to hospital after six days after the incident was per se a material contradiction, but particularly so in view of S 127 (7) of the Evidence Act 1967 where a mere finding that the child was telling 7 ,, I the truth was sufficient to warrant a conviction. Therefore this . · ground of appeal, too fails. The last ground of appeal is that the trial court did not consider the Appellant's evidence that PW2 was his estranged fiancee paving way to her for fabricating the story at the behest of his mother. MS Mawalla submitted that with or without a possible fabrication, the prosecution had proved its case beyond reasonable doubt. She thus prayed that the appeal be dismissed. I am settled in my mind that this ground of appeal is an after thought. PW2, the victim's mother gave evidence in court. The Appellant did not even attempt to put it to her his theory. I am of course aware that the Appellant had no duty to prove his innocence , but in concluding whether or not the prosecution had proved its case beyond reasonable doubts the court should not deal with fanciful possibilities. As Lord Denning said in MILLER V MINISTER of PENSIONS (1947, 2 ALL ER 372 the law would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice, Similarly in WAYANGA MAGUGU V REX (1948 EACA 74 the Court of Appeal for Eastern African, said: "The trial court though it may deal in possibilities. 8 when considering matters of defence, must deal in reasonable possibilities and may not invent possibilities which do not arise either from direct evidence or from the circumstances of the case " As I remarked above PW2 gave evidence. If that possibility was in the Appellant's mind he would certainly not fail to cross- examine her on it . He did not. He came to raise it in his defence . I think in the circumstances of the case the trial magistrate was entitled to ignore it. It was merely a fanciful possibility. Therefore this ground, too fails. For the above reasons the appeal against conviction is dismissed as the conviction is well founded. The sentence of 30 years imprisonment meted on the Appellant is however unlawful. According to S 154 (2) of the Penal Code as ammeded by Act 4 of 1998, since the victim was less than 10 years of age a fact which was not disputed; the minimum mandatory sentence is life imprisonment. Accordingly, I will exercise my powers and substitute that sentence with that of life imprisonment. It is so ordere.d_!____~------··-:__ ~ ~:.:·:-~=-:-= ----\-_., S.A.MASSATI JUDGE 11.4.2005 9 i' Judgment delivered in chambers this 11th April 20-05 in the presence of the Appellant and Mr Vincent Haule for the Respondent.