20150530 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM -CRIMINAL APPEAL NO. 168 OF 2011 (Originating from the Decision of Kibaha District Court in Criminal Case No. 301 of 2010) JUMA IDD ........................................... APPELLANT VERSUS - ~THE-REPUB:tIC...................................... RESPONDENT JUDGMENT MKASIMONGWA, J. JUMA IDD, (Appellant) stood before Kibaha District Court charged with Unnatural Offence contrary to Section 154 (1) of the Penal Code. He was convicted of the offence and sentenced to Thirty (30) Years Imprisonment. He is aggrieved by the conviction hence this appeal in which he has six grounds of appeal. The case against the Appellant is as short as that on 16/12/2010 at 7.00 pm SAID IBRAHIM (PWl) a 12 years old boy was at Cossovo area selling some cashewnuts. There came the appellant who asked him (PWl) to go with him to the appellant's home so that he could buy the cashewnuts. At the home PWl took a chair, commonly known as 'Kigoda' and set on it outside the house where he fell asleep. When he woke up he found his anus wet and slippery. He saw the appellant sweating smoking a cigarette. 1 ·.i ,, As PWl was late at home at 10.00 pm, DARIN! OMARY (PW2), the mother of PWl who was aware that PWl went with the appellant, came to the Appellant's home searching for her son. At the home PW2 met PW 1 inside the Appellant's· house. At the home she examined the son only to find him with a wet anus. She took the boy to the police station where they were provided with a PF.3 for medical examination. Dr. Athuman Ramadhani Mfuko (PWS) of Tumbi Hospital attended PWl who was in possession of a PF3. Upon examining him, PWS found the victim with bruises on his ------anus.._He recorded his observations in the PF.3 which was tendered --------- -in court and-admitted _in _evidence marked as Exhibit Pl. Pws------- opined that the young boy might have been carnal known or that due to solid stool that caused the bruise. He added that normally it is adult persons and not young children who can suffer such bruises from a hard stool. On 17/12/2010 the Appellant was arrested and brought before the village authorities where he was questioned. According to ZIADA MAJIPWANI (PW3) the Appellant denied to the allegations leveled against him. PW3 wrote a letter referring the matter to other authorities when the appellant offered to pay Tshs. 70,000/= to the victim so that the matter be amicably settled. The offer was rejected hence was accordingly prosecuted. When the appeal came for hearing the Appellant appeared in person whereas the Republic was represented by Ms. SHARIFA KARANA, a learned State Attorney. In his submission in chief, the 2 appellant said that he had nothing to say adding to what is stated in the Petition of Appeal. On the other hand the learned State Attorney did not support the appeal. She submitted that there is ample evidence to sustain the conviction. The trial court had rightly analyzed the adduced evidence. Minded of the victim's age the trial court conducted a voire dire test on terms of Section 127 of the Evidence Act. The PF.3 is a Medical Report and that it was filled in by PWS, a Medical ----- --- --Officer-;--The---witness came and testified in terms of section 240 of -·------ ----- the Criminal Procedure Act. PW.5- -was _ _ clear ·that- -he --detected bruises on the victims anus caused by a blunt object which was not a stool according to the age of the victim. He opined that the victim was sodomized. The learned State Attorney submitted that the PF.3 and explanation given by PWS corroborate the evidence given by PWl. As regards to the judgment of the lower court, Ms. Sharifa, State Attorney contended that Section 312 of the Criminal Procedure Act (CPA) provides for the form and contents of judgment. The Judgment of the lower court is in conformity with the requirements of that Section of the law. Although the Trial Magistrate did not specifically state the issues for determination, in the course of determining the matter he showed the issues. If there was any omission the same is curable under Section 388 of the CPA. From the above the Learned State Attorney prayed the court that it dismisses the Appeal in it's entirely. 3 I' By way of rejoinder the appellant submitted that PW3 did not witness the commission of the offence. She gave hearsay evidence. There was no any document produced to the court showing if he attempted to bribe the victim witness. The bruises the victim had suffered were a result of a hard stool. That is all from the parties. It need not be reminded here that 1n criminal proceedings, the prosecution has a duty to prove its case the standard of proof being "Beyond Reasonable Doubt". In this matter there is ample evidence that on 16/12/2010 at 7.00 pm, the appellant tookl>W1-to-hi~f-home~ Aecording to--PW-1_ at_th~------- home he got asleep and when he woke up he found slippery on his anus. PW2 met him at the home. PWl did not communicate anything to PW2. But PW2 examined her son and found him as such. All in all PWl remains a key witness in this matter. The court formed an opinion that he gives an unsworn testimony. His evidence therefore requires corroboration. In the case PW2, PW3, PW4 and PW6 did not directly witness the alleged acts of the appellant. They gave their evidences on the strengths of what was told to them by PW 1. Their evidence is hearsay which is inadmissible and for that reason it could not corroborate the testimony of PW 1. The only remaining corroborative evidence, if any, is the testimony given by PWS, the Medical Officer who produced in court the PF.3 issued to the victim (PWl). According to PWS, he examined the victim and found bruises on his anus. PWS also had tested the victim of HIV-AIDS on the victim and found negative responses. PWS did not tell the court if from the anus, he 4 ,. found any sperms one may think that there was no use of undergoing an examination to detect whether there were sperms on the victims anus for as it was expected, the victim had washed it, if any, but detection of sperms would be of assistance for forming an opinion that the Appellant did commit the offence. What is clear from the evidence of PWS is that the victim had bruises on his anus. As to the cause of the bruises PWS is recorded saying that: "It was possible that the young boy was carnal knowledge _________ __ g,_gg,_~nst the order of the nature or sometime due to hard stool cause internal bruises··ac-the·-anus~ --Normally___that _____ _ occurs to adult people and but not to young people". The witness in my view did not tell the court certainly the victim suffered bruises on the anus only because he was carnal known against order of the nature. Instead he gives other causes especially that hard stool may cause such bruises. PWS did not certainly state that a young boy like PWl cannot contact bruises on anus from a hard stool. He only shows that bruises on anus caused by a hard stool are normally occasioned to adult people. The wording by PWS does not in my view show absolutely that young persons cannot suffer such bruises like those PW 1 had suffered due to hard stool. It may so happen but rarely happens. The testimony given by PWS therefore lived the court in a doubt and the court ought to have so found. The evidence which is doubtful cannot be good corroborative evidence. Being of that a view, I find that the s .I .., evidence of PWl stood uncorroborated. As such it could not sustain the conviction. __ From what is discussed herein above I fihd merits in this appeal. I therefore- quash the -convi~tion- an.cf set aside the ·sentence imposed by the lower court and order for an immediate release of the appellant from jail if he is not in for other lawful causes. Appeal is allowed. Dated at Dar es Salaam this 30 th day of April, 2015. -=---~----~~--~~~---~~~----~------- \ E. J. Mkasimongwa ·1 JUDGE I 30/5/2015 - -,:,-'.,,. . 6