20110822 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA {APPELLATE JURSDICTION) {DC) CRIMINAL APPEAL NO. 36 OF 2011 {Original Criminal Case No. 73 of 2008 of the District Court of Kondoa District at Kondoa) RAJABU MOHAMED ............................... APPELLANT VERSUS THE REPUBLIC ................................... RESPONDENT JUDGMENT 15/6/2011 & 22/8/2011. KWARIKO, l: The facts of the case as revealed during the trial from the prosecution can be recapitulated as follows: On 14/5/2008 at 07.00 am one AWADHI ALLY (PW2) a boy aged seven (7) years was going to school when he met a man on the way. The man led him into a farm, undressed his trouser and underpant and sodomised him. The man who was not known to PW2 before threatened him not to reveal the incident to anybody lest could be killed. PW2- went to school and later returned home where he 1 revealed the secret to his grandfather one JUMA ISSA KIPANYA I PWl. PWl inspected the boy and found him with dried up sperms in his anus. PW2 led him to the scene and showed where the assailant was working. When the two reached at the place where the assailant had been working they found one DOTTO KASIAN (PW3) whose house was used as a kindergarten school where one MARTHA MWASU was a teacher. PWl asked the whereabouts of RAJAB and inturn PW3 said that he was there working hence called him for them and this happened to be the appellant herein. When PW2 was asked who had sodomised him, he pointed the appellant herein and upon inquiry he admitted to have committed the offence and said it was the work of a Satan. PWl reported to the village office but did not find the Village Executive Officer and only talked to him over the phone where he instructed them to report the matter to the Police. This instruction was complied with where a PF3 who issued from the police and PW2 was taken to hospital. The PF3 was admitted in court and marked exhibit Pl. Thus, the appellant was arraigned before the trial court with one count of Unnatural Offence contrary to section 154 (1) of the Penal Code Cap. 16 Revised Edition 2002. It was alleged that the 2 th appellant had on the 14 day of May, 2008 at about 07.00 hours . at Loo village within Kondoa District in Dodoma Region carnal knowledge of one AWADHI S/0 ALLY a boy of seven (7) years against the order of nature. The appellant denied the charge and in his defence opted to remain silent and left the Court to decide the case. Thus, at the end of the trial the court found that the appellant option of keeping silent without making his defence was sufficient evidence that he committed this offence. That an adverse inference against him was drawn and found that the prosecution case had been proved beyond reasonable doubf hence he was convicted and sentenced to thirty (30) years imprisonment. On being aggrieved with the trial Court's decision the appellant filed this appeal where he raised about seven grounds of appeal but essentially there are six points of complaints. These are:- 1. That, the trial Court erred in law and fact when it convicted the appellant basing on contradictory prosecution witnesses. 3 2. That, the trial Magistrate misdirected herself to have acted oh the prosecution evidence which did not prove that the appellant was properly identified by the complainant. 3. That, the trial Magistrate erred in law and in fact to convict the appellant basing on the evidence of a single witness. 4. That, the trial Court erred in law to act on a PF3 which was not proved. 5. That, the trial court erred to act on weak prosecution evidence. 6. That, the trial Magistrate erred in law to convict the appellant_ basing on the weakness of the defence. When the appeal was called for hearing the appellant only implored the Court to consider and allow his grounds of appeal. On the other hand Mr. Kahangwa learned Senior State Attorney appeared and argued the appeal on behalf of the respondent Republic where he opposed the same. As for the first point of complaint Mr. Kahangwa submitted that the prosecution witnesses did not contradict each other and the evidence was straight forward. That PW2 led PWl to the place where the appellant was at one Mwasu's place. This Court has 4 .' gone through the prosecution evidence by PWl and found that after PW2 had revealed to him that he had been sodomised, he led the later to the scene and then the two went to the place where the assailant was working and PW2 pointed the appellant to be the one who committed the solomy. However, PW2 testified that after he revealed about the sodomy to PWl and took him to the scene, they (meaning PWl and others) saw the appellant at Mwasu's place. The court finds a discrepancy here which shows that it was not PW2 who led PWl to the place where the appellant was found at one Mwasu's. PW2 said "they saw the appellant at Mwasu's place" that means he was not the one who led the others there. This contradiction creates doubt on the prosecution case which in law need to be resolved in favour of the appellant. · as I hereby do. Secondly, closely related to the above complaint is the issue of identification of the appellant by the complaint. Mr. Kahangwa submitted that there was no any problem with identification since the incident took place at day time and that the complainant identified the appellant for the second time when he saw him at Mwasu's place. A case of KICHELE MRANGE V R [1983] TLR 158 was cited in this respect. This Court agrees with the appellant that hi identification by the complainant was doubtful. Firstly, PW2 said that he did not 5 know the appellant before the material day. He did not give his description to PWl before they set to look for him. And practically it was PWl who pointed out the appellant to PW2 when they reached at Mwasu's place. PW2 testified that they saw the appellant at Mwasu's place meaning that he was not the one who led PWl to th~t place. This is cemented by PW3's evidence who testified that when PWl and PW2 got at Mwasu's place PWl asked if RAJAB was there and confirmed that he was there and actually called him for them and this was the appellant herein. PWl then asked PW2 if it was the appellant who had sodomised him and he replied in the Positive. Thus PWl went there looking for the appellant and not PWl's assailant because no one had given the appellant's. identify to him before since PW2 did not know his assailant before hence could not have described him to fit the appellant's identity. I could not relate the cited case with the present one since the facts in the former do not show how the culprits were arrested and how the victims had mentioned them to the law enforcers. However, in our case hadn't the appellant been pointed out to the complainant by his grandfather, PWl an identification parade was necessary taking into consideration that the victim was a child of tender age who did not know his assailant before. 6 Therefore, the Court finds that the identity of the appellant as PW2's assailant was doubtful and thus did not prove that he was the one who committed the alleged offence. Another complaint is that the trial Court erred in law to base its conviction on the evidence of a single witness, PW2. It was Mr. Kahangwa's submission that PW2's evidence was corroborated by PF3. As for this Court, the evidence of PW2 ought to have been corroborated because as I have herein above decided the appellant's identity as the assailant was not proved at all. The PF3 has much to be desired as I will later show hence the same cannot corroborate PW2's evidence. Even if the PF3 has no any problem but the same would only prove if the victim was assailed in any way but could not prove that it was the appellant who was the assailant. · Fourthly, the legality of the PF3 was questioned and Mr. Kahangwa did not respond to this complaint. The court has gone through the proceedings of the trial Court and found that the trial Magistrate did not comply with the provision of Section 240 (3) of the Criminal Procedure Act Cap. 20 Revised Edition 2002 before the PF3 was admitted in evidence. This law obliges the trial Magistrate to inform the accused person of his right to h~ve the 7 Medical Officer who authored any Medical Report to be summoned for examination or cross-examination. Had the law been complied the Medical Officer could have come to explain and prove if PW2 was really sodomised. This is so because in his evidence he did not say what exactly his assailant did to him after he had put off his clothes. He generally said that he was sodomised without explaining specifically what was done to him and at which part of his body with what part of the assailant's body. Although the appellant did not object the PF3 but the law ought to have been complied. Thus, the PF3 (exhibit Pl) was not good evidence and it is hereby expunged from the record. Fifthly, the appellant complained that village leaders were not informed of the- incident and the police investigator did not come to testify; Hence he said the prosecution evidence was weak. I agree with Mr. Kahangwa that according to PWl a Village Executive Officer was informed through telephone but due to the nature of this case where the identification of the appellant was not proved, VEO's evidence was necessary to show what exactly PWl had informed him before he advised them to go to police. Also, police investigator was necessary to testify in this case since PWl and PW3 said that the appellant had admitted the allegations before them which evidence was not proved anyhow. 8 The police ought to have testified to explain what made them believe that the appellant was involved and what did he say upon interrogation. Thus, the prosecution evidence was really weak. Lastly, the appellant contended that the trial Court erred to base on defence evidence to convict him. Mr. Kahangwa on the other hand found that both sides were considered by the trial Court and more so the appellant's silence at the time his defence was required indicated that he was a guilty party. A case of SAMWEL SILANGA V R [1993] TLR 149 was cited in this respect. I have gone through the trial court's judgment and found that basically it convicted the appellant since he opted to keep silent. The trial Magistrate noted that the appellant's silence was sufficient evidence to prove the case against him. In law under Section 231 of the Criminal Procedure Act to keep silent after the prosecution has closed its case is one of the option availed to an accused and the court is entitled to draw an adverse inference against him if he opts the same. But drawing an adverse inference should go hand in hand with analysis of the prosecution case for the court to satisfy itself if the same has proved the accused's guilt. In our case the trial Magistrate did nothing analyse the prosecution case at all apart from summarising it and 9 issue of identification was not in question since the offence was committed during the day time. Had the trial Magistrate analysed the prosecution evidence as I have done herein above she would not have found the appellant guilty. And the appellant did not err when he kept silent since it is one of the options given in law. The cited case is distinguishable from the present one since the appellant in that case gave his evidence in defence but only failed to explain how his palm was injured since there was a Murder by stabbing in the neihgbourhood. In our case the appellant did not at all give his defence and exercised his right to remain silent. The law says that a conviction should be based on the weakness of the defence but on the strength of an affirmative prosecution case (See PYARALAL BASSAN V R [1960] E.A 854). Thus, even though the trial court found the defence weak but it ought to have analysed the prosecution case to find its strength. L • I • Finally, the prosecution case was not proved beyond reasonable doubts against the appellant and thus, his appeal is allowed, conviction quashed and sentence set aside. It is ordered that the appellant be released from Prison unless his continued incarceration is in relation to other lawful causes. It is so held. (M~=:;liii~) JUDGE 22/8/2011 Court: ~ Right of Appea;~~:-.1;.0) JUDGE 22/8/2011 AT DODOMA. 22/8/2011 11 L Appellant: Present. For Respondent: Mr. Nchimbi State Attorney assisted by Ms. Idda Kombe State Attorney trainee. C/c: Ms. Komba. 12 t~"' ~· "";j ·. l. -L...-,1;;...j ,t (7~-----:1 (2:..:~~~j 11 u