20101116 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA ATD_ODOMA (DC) CRIMINAL APPEAL NO. 17 OF 2010 ( Originating from Criminal Case No. 271 of 2007 of the District Court of Kondoa at Kondoa) HAMIDU S/0 HASSAN!. ................... APPELLANT VERSUS THE REPUBLIC ............................. RESPONDENT JUDGMENT 08/11/2010 & 16/11/2010. KWARIKO, J: The facts of the case which led to this appeal from the prosecution can be recapullated as follows: The appellant herein had on 15/7/2007 at about 6.00 pm visited Potea village in Kondoa and asked for a place to sleep at the home of one MOHAMEDI AJlHJMANI, PW3. While the appellant was allowed to sleep at PW3's home, he (PW3) left to another nearby village. When the time to ~- ---r:et:ir:e-came--th@--Glppellant was shown a -bedroQm __to slE:ep whic:h oe_ shared with PW3's son HAJI MOHAMED ATHUMANI, PWl who is the ~c9-mplafnt. At_ about 11. 00 Pni PW1 found himself being sodomised - .. ~--........-.~~-= -~-· ~-- .• __ by the appellant. He ran out of the room and closed the door where ·he informed his mother about the incident. PWl's mother JAMILA 1 -- ··_:~--:,·_,_~~, ~- : . . ·;;··· ; ' -.~ W/0 MOHAMED, PWS raised alarms where their neighbour ADAMU RAMADHANI, PW4 answered the same. PW4 inspected the complainant, PWl who was aged fifteen (15) years and found him with spermatozoa in his anal area. The appellant was sent to the village office and upon interrogation by Acting Village Executive Officer (VEO) one ADAMU MASANGALA, PW2 he admitted the allegations and pleaded to be forgiven as it was a ·work of a Satan that led him to commit such act. The appellant's confession before the Acting VEO was recorded where he accordingly signed it. The matter was reported to the police where a PF3 was issued to PWl to go to hospital for examination. Thus, the appellant was formally booked and a charge of Unnatural Offence contrary to section 54( 1) of the Sexual Offences [Special Provisions] Act No. 4 of 1998; which should have properly been cited as Unnatural Offence contrary to section 154 (1) (a) of the Penal Code, Cap. 16 Vol. 1 of the Laws Revised Edition 2002. A letter from Potea village containing appellant's admission and PWl's PF3 were admitted in court as exhibit PE2 and PEl respectively. In his defence the appellant did not deny that he was allowed ;, to spend the night at PWJ's home and that he slept in the same room with PWl. However, the appellant denied that he sodomised PWl and also testified that PW3's wife JAMILA W/0 M0HAMEDI, PW5 had asked sexual intercourse with him but he denied and thus 2 he was convinced that the allegations were framed against him from· that angle. He also informed the court that the complainant and his mother confiscated his money about Shs. 30,000/= that is why they came out with these allegations. The trial court found that the prosecution evidence ·as well as the appellant's confession proved the allegations beyond reasonable doubt. Thus, the appellant was found guilty and sentenced to thirty (30) years imprisonment with corporal punishment of twelve (12) strokes of the cane. The appellant was aggrieved with the trial court's decision hence he filed this appeal where he raised about four grounds of appeal which raise about three essential complaints against the trial court's decision as follows; That, the trial court erred in law ·when it did not comply with section 312(2) of the Criminal Procedure; Act Cap. 20 Revised Edition 2002 (the CPA); that, the trial court acted on the prosecution evidence that he had admitted the allegations while no documentary evidence was tendered to that effect and; that, the trial court erred in law and fact when it believed the prosecution evidence which came from family me_rn_bers only. During the hearing of this appeal the appellant did not have much to say as he only implored this court to adopt his grounds of appeal: On the other hand the Respondent Republic was represented by Ms Seif learned State Attorney who did not support the trial 3 ---~-- -_,_-&7·- -~ .. -=---~-~:--Y .. . '--'· - : ~ _::_-----=-- - .... _..- - ;: Court's conviction. in respect of the appellant albeit on different grounds from those advanced by the appellant.· I will first respond to the appellant's grounds of appeal to see what the outcome would be. Firstly, the appellant complained that the trial court's judgment did not comply with section 312(2) of the CPA for easy of reference let the cited provision speak for itself thus; ''In the case of conviction the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced" The learned State Attorney did not specifically respond to this ground of appeal. I have gone through the trial court's judgment and found that truly the same did not comply with the cited provision of the law. The judgment does not indicate that the appellant was convicted for any offence and instead throughout the judgment the trial Magistrate dwelt on repeating what the prosecution case was all about. The appellant was not convicted before he was sentenced. The foregoing was not all; the trial court's judgment also did not comply with the provision of sub-section (1) of section 312 of the C l?A which _prov.ides thws-; 4 ~g~_-- ~~i;i- - ~ ..-:-~; - "Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act be written by or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed b_y the presiding officer as of the date on which it is pronounced in open court'~ (Emphasis mine). The trial court's judgment does not contain point or points for determination, decision and reasons for the decision. The judgment prepared by the trial Magistrate only contains summary of evidence from mainly the prosecution and this is what he kept on repeating before he sentenced the appellant. There can not be point or points for determination unless there are two opposing sides. But in this case .. the defence case was not at all consiclerecJ in order to deduce points for determination. Thus, before the appellant was found guilty and sentenced he was-not accorded.a fair trial for, his defence was not considered. This was contrary to the principles of natural justice which says that one 5 should not be condemned unheard. A right to be heard in provided in the Constitution of the United Republic of Tanzania under Article 13 (6) (a) and in this case it was violated by the trial court in respect of the appellant. Therefore, failure by the trial court to observe the mandatory provisions of the law rendered its judgment illegal and viciated the proceedings. This ground of appeal could have been sufficient to dispose of this appeal but for reasons which will soon be apparent, I will also consider other grounds of appeal. In the second ground of appeal the appellant complained that the trial court erred to believe the prosecution evidence that he admitted the allegations while there was no any documentary evidence tendered to that effect. Also, Ms Seif did not respond to this complaint. I have also gone through the trial court's record and found that the alleged appellant's confession was reduced into writing by the village leaders and the same was tendered in court and admitted as exhibit PE2. Therefore, this ground is baseless and it is dismissed. Thirdly, the appellant complaineq _that the trial court ~rred tQ act its decision on prosecution evidence which was given by all family members. This ground was also not responded to by the respondent Republic. I find this ground of appeal baseless since it was not proved that all prosecution witness_were family members. It wa~ not proved if PW2 who was a school teacher was related to PWl or his 6 - -- ·-·- - -- - \':J~i parents {PW3 and PWS). This applies to PW4 who· was the sub- village chairman in the area. However, what matters in a witness is not his/her relationship to the complainant but it is how he/she is best placed to tell what he/she knows about a relevant issue. The law does not forbid family members from testifying provided they are the ones who were present at the scene or knew a particular fact in relation to the case. This ground is therefore dismissed. Though the appellant did not raise in his grounds of appeal I found that the prosecution· evidence -was received contrary to the law. This also was what Ms Seif learned State Attorney led her not to support appellant's conviction (which was not reached anyway). Thus, by this court's revisionary powers I will go through the evidence on record and decide if the same was sufficient to find the appellant guilty. As rightly submitted by Ms Seif, the complainant's evidence is contradictory in itself. At first PWl testified that the appellant wanted to sodomise. him hence ran away when he informed_ his mother who in turn raised alarms but later PWl testified that the appellant had sodomised him and was found with sperms and faecal matters were seen in his buttocks. This contradiction creates doubt on the evidence of PWl who was the eye witness. Other witnesses were reiterating 7 ., . what PWl had told them. Since PWl's evidence was doubtful the doubts are resolved in favour of the appellant. To -fGrtify the -foregoing evidenGe,-the -1Jrosec:;uti0n ~tendered Exhibit PE 2, the alleged appellant's confession. First of all the law does not provide that confession by suspect can be recorded by village leaders. The CPA provides under sections 57 to 58 that it is -the duty . -,of- - Polic:e - Gffic(=r? to -r_~E<:Jte:1- -suspects!'__ -~st~t~r-ueAtS; 0 Confessions by suspects can also be recorded by Justices of the Peace assigned to district court houses as provided under sections 57 - 59 of the Magistrates' Courts Act, Cap. 11 Vol. 1 of the Laws, Revised Edition 2002. Secondly, exhibit PE2 was admitted in court contrary to the law when the trial Magistrate failed to accord the appellant opportunity to say anything when the same was being tendered in court. Thus, the appellant was not heard in relation to this alleged confession. It is thus expunged from evidence. The prosecution also tendered in evidence a PF3 (Exhibit PEl) in respect of the complainant, PW1. However, this PF3 was admitted in court in dear contravention of the law under section 240 (3) of the CPA. The trial court abdicated its duty when it did not inform the appellant about his right under this law to require the medical officer who filled the PF3 to be summoned to court for cross-examination. Further the PF3 was admitted by the trial court without appellant's 8 ·- " --;:--:,: '_ t· · ": .,,0:,1) ~-- 1 ~ • : .. ----==,·-1-- .---"·.- - ... .- .... , ~a--: . .:._-_-,,-=-·•-. 7 - -- - . . - . _· - . • • _..:...=:~~_:::W:· - ... - -=-~----. comment since the Magistrate did not give him this opportunity. Consequently, this was not good evidence and it is expunged [see NYAMBUYA KAMUOGA VR, Criminal AppeaLNo. 90 of 2003, Court ofAppeal of Tanzania, Dodoma Registry, (unreported)]. Consequently, this court finds that apart from the proceedings of the trial court being vitiated which could _necessitate this court to order retrial of the case, there is no sufficient evidence from the prosecution which could be led to prove their case against the appellant. Thus, I find that the prosecution case was not proved beyond reasonable doubts against the appellant, I find him not guilty, and I hereby allow the appeal, and set aside the sentence. The appellant is ordered to be set at liberty unless his continued incarceration is in relation to other lawful cause. Order accordingly. ~ ) JUDGE 16/11/2010 9 Court: - Rights of Appeal fully explained. ~~ JUDGE 16/11/2010 AT DODOMA 16/11/2010 Appellant: Present. For Respondent: Mr Kahangwa, State Attorney. c/c: Ms Komba.