20161107 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 58 OF 2015 (Originating from Criminal Case No. 833 of 2010 District Court of Morogoro at Morogoro) WILLIAM KASANGA _ _ _ __ _VE~SJJS. _ REPUBLIC Date of last Order 7/11/2016 Date of Judgment 7/11/2016 JUDGMENT W.B. KOROsso·J. The appeal before this Court, has been filed by the appellant, William Kasanga, who on being dissatisfied with the decision of Hon. J.K Mzonge (PDM) dated 20th day of June 2011 of the District Court of Morogoro, filed six grounds of appeal against the said decision. The appellant who had pleaded not guilty to the charges was convicted of unnatural offence contrary to section 154(1)(a) and (2) of the Penal Code Cap 16 RE 2002 and sentenced to thirty years imprisonment, twelve strokes and to pay compensation to the victim. 1 - _-_---------....i_-.... From the court records, the Prosecution side case was that on the 23rd of December 201 0 at around 19.30hrs at Difinga village, within the District and Region of Morogoro the appellant did have carnal knowledge against the order of nature with Michael Emmanuel George, a 4 year old boy. The appellants main point of contention in his appeal was that the trial Court erred in law and fact for not considering the fact that first, testimonies of prosecution witnesses especially PWl, PW3 and PW4 and PW5 was embedded with discrepancies and contradictions; Second, that failure of the prosecution to call important witnesses (PWl's in law, PW3's grandmother and the investigator) should have drawn adverse inference; and third, that the prosecution failed to prove their case to the standard required. In this appeal the appellant was unrepresented and thus· appeared in person and the Respondent Republic was represented by Ms. Selina Kapange, Learned State Attorney. The appellant prayed for the Court to consider his grounds of appeal and emphasized his stance that the evidence against him is based on lies, such as that of the doctor who examined the victim after two days of the alleged incident stating that the Prosecution had failed to prove the charges against him and that he should be set free and his appeal be allowed. The learned State Attorney, at the earliest alluded to the Court their support conviction and sentence meted against the appellant by the trial court and prayed that the appeal be dismissed, stating that the grounds of appeal presented by the appellant lacked merit. The Respondent Republic started by addressing grounds 1 and 3 of the appeal which challenged the evidence of PWl, PW3, PW4 and PW5 as being contradictory and inconsistent. The alluded to contradictions being testimonies regarding the time of the alleged incidence. The learned State Attorney contended that there were no contradictions in the testimonies of the said witnesses because the evidence of PW 5 was only to state that he arrived at 17 .30hrs but not to state that the alleged incidence was committed at that time. The learned State Attorney argued that it should be borne in mind 2 that what was consistent among the testimonies of most of the prosecution witnesses was the fact that they heard the voice of a child cry and on arrival at the scene, had found a naked PW3 and half naked appellant who at the time was close to PW3. That if there was any discrepancy in time in the evidence of the said witnesses, the discrepancy is minor one and does not go to the root of the case. In this stance, they Court was invited to consider the holding in the case of Dickson Elia Msamba Shapwata and another vs. Republic, Criminal Appeal No. 92 of 2007, CAT Mbeya (unreported) were it stated, "contradictions related to time are minor contradictions which do not go to the root of the case". In consideration of grounds 1 and 3 of the appeal related to alleged contradictions in the evidence of PWl, PW3, PW4 and PW5 on the time of-the incidence we undertake to evaluate the evidence before the Court. PWl 's evidence was that Michael Emmanuel George, the victim is his son who was born on the 1st of May 2006. That on 23/12/2010 about 19.30hrs while at home, the appellant came at his house, looking for his in-law stating he had brought some money for her. That the appellant was given a chair to sit and while inside the house, PWl heard his son Michael crying and he went to the place in the directions he had heard the crying coming from, and about 70 paces thereafter, he met his son and the appellant accompanied by one Jackson. When PWl asked his son why he was crying his son told him that the appellant had taken down his clothes (the child's), and had sexually assaulting him. It was then that they arrested the appellant and took him to the Village Executive officer and the Chairman. The child was taken to the hospital. The witness was not cross examined by the appellant. The evidence of PW2 A. Mselem, the Village Executive officer was that the appellant was brought to his office around 20.30hrs on the 23/12/2010. With regard to the evidence of PW3, Michael Emmanuel, the Court had conducted what we term as questioning session and after questioning the witness had found him he lacking the capacity to understand the meaning of telling the truth and ruled that he 3 should testify without oath. We find that upon failure of th~ magistrate to address the test of the witness intelligence, and PW3 evidence being unsworn, in determining this case we shall seek corroboration of material facts with regard to his evidence. From the evidence of PWl, we learn that the PWl 's birth date is 1st of May 2006, which means when he was testifying in Court on the 5th of May 2010, PW3 was 4 years old. PW3 testified that the appellant came to their house and took him to the bush near a mango tree were he undressed him by removing his pants and then the appellants penis penetrated into his anus and he felt pain and that it was about 20.30 pm and that he had raised an alarm. PW3 stated further that that the appellant thereafter had told him to go buy sweets at a nearby shop. Saidi Jackson PWS's evidence was that on the 23/12/2010 at about 17.30hrs he had arrived at their house and on arrival-had requested to speak to their grandmother who came to heed to the call and they talked and later on, he heard PW3 cries coming from a nearby bush so he and PWl rushed to follow-up on the cries and they found PWl while he was naked and the appellant was nearby PWl and he checked PWl's arms and noticed sperms. It was then that the appellant was apprehended and taken. to the office of the Village Executive Officer. On this issue the appellant sworn evidence was nothing related to the incidence only stationg on 23 rd December 2010 at about 4.00pm on his way back home from work, were he was a labourer, he came across seven people who attacked, assaulted and handcuffed him and ran away with his money, Tshs. 10,"000/- and took him to Police station Mtibwa. In evaluating the whole evidence pertaining to the incidence PWl, PW2, PW3 and PWS testified that they saw the appellant on the 23/12/2010. PWl, PW3 and PWS testify that the appellant arrived at PWls house on the day in question. Therefor from the evidence it is clear that the presence of the appellant cannot be disputed despite the alibi put forward. With regard to the time of the incidence, it is clear there are some discrepancies in narration of the time of the incidence. PWl states it was 19.30hrs, PW 3 4 states it was 20.30 hrs, PW 5 states it was after 17.30 hrs. PW2 states that they arrived having apprehended the appellant, at around 20.30 hrs. But it should be borne in mind that all these witnesses, state the time by estimation, and not stating that it was the exact time. But the important issue we find is that, the ~ppellant ! had gone to PWl's house on the 23/12/2010. The appellant denies this fact as presented hereinabove, and he also does not mention being taken to PW2, the Village Executive Officer on the same day. We are inclined to share the views by the trial magistrate on the fact that the appellant was seen at PWl 's house on that day. Looking at PW2's evidence had in effect supported the evidence of PWl and PWS regarding the arrest of the appellant. From PW3 evidence, we are informed that the victim had stated how the appellant had undressed him and let his penis enter his anus, categorically showing it is the appellant who had done this act. PW3 evidence was not an oath, and the weight to be given to it is that it has to be corroborated on material facts by independent evidence. The evidence of PW 5 on the fact that they found PWl naked corroborates the evidence of PW3 that the appellant had undressed him and also PWl evidence of what PW3 had told them, that the appellant had sexually invaded him. The discrepancy in time, as pointed out by the learned State Attorney is an issue which should not detract the strength of available evidence on the issue. We find that the cited case of Dickson Elia Msamha Shapwata and another vs. Republic, Criminal Appeal No. 92 of 2007, CAT Mbeya (unreported) to be relevant. Nsekela JA (as he then was) referring to differences of the witnesses in their testimonies regarding time, he stated "Each witness testified what he saw at the scene. It was not possible to have a uniform explanation for what each saw. Consequently, any discrepancies in their respective testimonies was not something out of ordinary. It was expected and inconsequential." Taking in consideration no reasonable person automatically looks at the time when a visitor enters especially in the village setting one would not expect testimonies on time to be exact. 5 The Court also discussed the finding in the case of Mohamed Said Matula vs. Republic (1995) TLR 3, where the Court determined that the important matter to address is whether the said inconsistencies go to the root of the matter. Having considered the other evidence on other material facts relating to the case on hand we are of the view that the discrepancies did not corrode the evidence of the witnesses and in any case the trial Court found the witnesses to be credible hence he relied on their evidence. We find that with the above reasons ground 1 and 3 of the appeal fails being without merit. Ground 2 and 4 challenges the trial court's failure to call what it considers to material witnesses- for the- prosecuticm. On- this _matter, th~ l~amed _St'1:te ~ttomey in rival submissions stated that the Prosecution is not compelled on what number of witnesses to call in proving a fact vide section 143 of the Evidence Act, Cap 6 RE 2002 and what was decided in the case of Yonas Msigwa vs. Republic (1990) TLR 150 which discussed this issue therefore found that the ground lacks merit. In considering the grounds of appeal it is important to note that 4th ground challenges the fact that there was no evidence related to investigation especially the arrest and re-arresting. Starting with the evidence related to arrest of the appellant, it starts with evidence of PWl and PW5 who testified that upon finding the appellant at the scene of incidence, they had apprehended him and taken him to PW2 (the Village Executive Officer) who in his evidence conceded to this, that PWl and PW3 had taken the appellant to his office and complained that the appellant had sodomized PW3, who according to PW2 upon arrival was handcuffed with ropes and several people surrounded him. That at the time PW3 was in shock and he wrote a letter so that they may take it to the Police Station Mtibwa. E6813 DIC Mahende, a Police officer testified that he was the investigator, and he was handed the file to investigate complainants were present and the appellant had already been apprehended. That he was the one who issued the PF3 on the 24/12/2010 around 6 9.00hrs. Therefore it is clear that investigatory evidence was expounded and from the records there was no cross examination from the appellant regarding this witness. It is also important to note that with regard to failure to call certain witnesses to give evidence, the law guides parties on this. According to Section 143 of the Evidence Act, as asserted by the learned State Attorney, there is no number of witnesses required to prove a certain fact, it is the prosecution who know the number of witnesses to call citing the case of Tumaini Mutayoba vs. R, Criminal Appeal No. 217 of 2012, which addressed the issue and found as above with a caveat that were the said witness is deemed to have been important and nor reasonable explanation for failure to call him, the Court can draw an adverse inference on such failure. Having gone through the evidence on record, we find that with the evidence of PWl, PW3 and PW 5 and also PW2 who supported their evidence on some fact, and also the evidence of PW4- Dr Assey Sixtus John, the doctor who examined the victim PW3 on the 24/12/2010 at around 12.00hrs and found that the boy had been sodomized though he did not find any sperms. The PF3 which was tendered and admitted without objection from the appellant as Exhibit P 1 states there were some signs of injury inflicted in the anus by a blunt object, but also stated under oath that the boy seemed to go to the toilet frequently and seemed to be affected psychologically leading us to find that this provides material support to the evidence of PWl and PWS and also that of PW3 on the fact that he was sodomized. We thus hold that ground no. 2 and 4 of the appeal has no merit. Having considered and determined grounds no. 1 to 4, ground no. 5 and 6 relates to the fact that the prosecution did not prove their case to the standard required and that the trial court relied on the weakness of the defence. Having regard to the assessment of evidence hereinabove, and finding no need to challenge the finding of the trial court on the credibility of the witnesses who had testified for the prosecution, it is the holding of this Court that the prosecution had proved their case beyond reasonable doubt. 7 It is important to highlight that we have noted that the trial magistrate did not conduct the voire dire for PW3 as envisaged by section 127 of the Evidence Act, and also advanced by various Court of Appeal and High Court cases in that there should be a test of intelligibility and understanding of an oath, but we find that despite this was not effectively done, because the Court proceeded to consider the evidence of PW3 as unsworn evidence, the failure of the trial magistrate to adhere to the principles governing the conduct of voire dire does not vitiate the evidence of the prosecution with regard to the charges the appellant faced and was convicted therefrom since in any case the Court sought corroboration to support the evidence of PW3 on material facts when making its determination. Therefore having found that the trial Court properly convicted the appellant on the evidence available before it, we proceed to find that the appellant was properly convicted. With regard to the sentence, the appellant was sentenced to Thirty years imprisonment. The charge which the appellant was charged and convicted was Section 154( 1) (a) and (2) of the Penal Code Cap 16 RE 2002 reads: 154.-(1) Any person who- (a) has carnal knowledge of any person against the order of nature; or (b) ....... ; or (c) ........ , commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years. (2) Where the offence under subsection (1) of this section is committed to a child under the age of ten years the offender shall be sentenced to life imprisonment. In this case, from the evidence of PWI, the victim PW3 was born on the 1st May 2006 meaning at the time of the trial ,he was 4 years old. PW3 is recorded by the trial magistrate as being 4 years old. PW4, the doctor also testified that PW3 was about 4 8 years old. PW6 also testified that PW3, the victim was about 4 years old. The charge sheet also reveal that Michael Emmanuel @ George is a boy of 4 years of age. In his judgment the trial magistrate had also alluded the fact that the victim was 4 years. That being the case and there being no question on the age of the victim being below 10 years of age, one wonders why the sentence meted to the appellant upon conviction was one of 30 years imprisonment. This bearing in mind the fact that the judgment having delivered on the 20th June 2011 and the commission of offence having occurred on the 23/12/2010. Section 154 of the Penal Code was amended by Act No. 4 of 1998 so that it reads as what was quoted above, therefore by the time the trial Court meted the sentence the contents of Section 154 as there are today were already operative. Having considered the available legal provision, the victim in this case being 4 years old, with due respect to the Hon. Trial Magistrate, In view of said amendment vide No. 4 of 1998, the sentence of thirty years imprisonment was clearly illegal. The charge for which the accused was convicted with is section 154(l)(a) and (2) of the Penal Code, Cap 16 RE 2002, and the victim being a child under the age of ten years by virtue of paragraph (2) of section 154 warrants a life imprisonment and not a sentence of thirty years the one given by the trial Court. In the premises, upon this Court dismissing the appeal and not disturbing the conviction meted by the trial Court, this court invokes its revisional jurisdiction and substitutes the sentence of thirty years to that of a sentence of Life Imprisonment against the appellant William red.' Winfrida B. Korosso Judge 7th November 2016 9