cyprian stephen malya msafiri vs republic 2021 tzhc 7562 11 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI CRIMINAL APPEAL NO. 51 OF 2021 (Originating from Criminal Case No. 460 of 2019 in the District Court of Moshi at Moshij CYPRIAN S/O STEVEN MALYA @ MSAFIRI.............. APPELLANT VERSUS REPUBLIC ................................................... . RESPONDENT JUDGMENT MUTUNGI .J. The appellant was arraigned before the District Court of Moshi at Moshi (the trial court) in Criminal Case No. 460 of 2019 charged with unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap 16, R.E. 2002 (now R.E. 2019). It was alleged on 27th and 28th November, 2019 at Kibosho area within Moshi District in Kilimanjaro Region, the appellant had carnal knowledge to one “BLM”, (true identity hidden) a boy of 12 years against the order of nature. Page 1 of 15 Reading from the trial court’s record, the prosecution marshalled five (5) witnesses, PWl-the victim’s mother, PW2- the victim, PW3-the victim's grandfather, PW4-investigation police and PW5-Medical Doctor who examined the victim and prepared the PF3 report which was admitted in evidence as exhibit P I. Likewise, the appellant fended himself. According to the victim (PW2), the unfortunate ordeal happened on 27th and 28th November, 2019. On 27th November, he was playing near the appellant’s home who was their neighbour, the latter called him to go inside his house. While inside, the appellant undressed him, inserted his penis into the victim’s anus and warned him not to disclose the incidence to anyone. The same incident was repeated by the appellant on the following day i.e. 28th November, 2019. On 29th November, 2019, the victim disclosed the incident to PW1, (his mother) that his anus hurts when he defecates. He was then taken to the hospital and the medical examination conducted concluded, he had been penetrated through by a blunt object against the order of nature. PW1 reported the incident to the authorities which led to the appellant’s arrest. PW2 did further disclose he had Page 2 of 15 been involved in a bicycle accident after he had been sodomized which accident had resulted into injuring his private parts. In his defence, the appellant claimed there was no proof that he had carnally known the victim against the order of nature. He also claimed; the victim had been involved in a bicycle accident that caused bruises and pain in his buttocks thus, the pain was due to the said accident. In the end, the trial court was satisfied that the prosecution had proved its case to the required standard, convicted and sentenced the appellant to serve thirty years imprisonment. Aggrieved, the appellant has filed this appeal comprising of four grounds as hereunder: - 1. That, the trial magistrate erred in law and fact in deciding that the prosecution proved its case against the appellant herein above beyond reasonable doubt. 2. That, the trial magistrate erred in law and fact in convicting the accused basing on the evidence of PW2 who was not a credible witness. 3. That, the trial magistrate erred in law and fact in convicting the appellant considering doctors evidence Page 3 of 15 that bruises in buttocks is proof that the victim was sodomized. 4. That, the trial magistrate erred in law and fact in failing to evaluate properly the evidence on record when she convicted and sentenced the appellant. When the appeal was called up for hearing, the appellant was represented by Mr. Willence Shayo while the respondent was represented by Mr. Innocent Njau, Senior State Attorney. Mr. Shayo on the outset abandoned the second ground and argued the 1st and 3rd grounds jointly that, the case against the appellant had not been proved beyond reasonable doubt. He expounded, PW5 (the Doctor) had stated, upon examination he found fresh bruises on both buttocks. However, considering the fact that the offence was allegedly committed on 27th and 28th November, 2019 and the examination was conducted on 30th November, 2019, it is obvious that if at all there was penetration, the bruises would have been in the anus not buttocks. In the normal way of things there is no possibility of sperms causing bruises as alleged. Page 4 of 15 He added, considering the age of the victim and that of the appellant, it was expected there would have been bruises in the anus. The foregoing notwithstanding, the victim had stated clearly that on 27th November, 2019 he was hurt by a bicycle in his private parts and went to hospital. He was examined and found the anus had been hurt, but later he also admitted it was the Doctor who came up with the issue of sodomy. Given such circumstances, the learned counsel argued, there is doubt as to whether the victim’s pain in his anus was due to the bicycle accident or the appellant’s acts (sodomy). More so when both incidents allegedly occurred on the same day. Hence, if at all the victim had been sodomized as alleged, he would not have been able to ride a bicycle which caused yet another injury. The learned counsel proceed to point out the contradiction between PW2 (victim), PW4 (the police) and PW5 (the Doctor) testimonies. He submitted PW2 stated, on the material day (not mentioned) he was playing near the appellant’s home when he called him and sodomized him. PW4 testified that, the appellant called the victim on his way from the church and then sodomized him and PW5 at page 27 of the proceedings mentioned the actual day was 28th PageS of 15 and 29th November, 2019. However, the charge and the evidence of PW2 is that the incident took place on 27th and 28th unlike PW5’s testimony. In that regard it is not certain when actually the offence was committed. Turning to the 4th ground on evaluation of evidence, Mr. Shayo argued, the trial magistrate stated, PW5 had observed penetration of a blunt object in the anus but as per the proceedings, PW5 never made such a statement. The trial magistrate at page 6 of the judgment, alleges the victim reported the incidence to his mother at the earliest possible opportunity but in reality, there is no such evidence on record. It was the Doctor who raised the issue of sodomy but did not elaborate either something was inserted or bruises were found in the victim’s anus. To make matters worse the medical examination was conducted 2 days after the alleged incident. He further submitted, since the victim admitted he was injured by a bicycle in his anus and there was no evidence or a report at all that he was sodomized by the appellant, his testimony leaves glaring doubts in the prosecution case, which had a duty to prove the offence beyond all Page 6 of 15 reasonable doubt. He referred the court to the case of Salym Self Mkandambali Vs. Republic, Criminal Appeal No. 128/2019 CAT-unreportecO which quoted with approval the case of Philians Alexander & 2 Others Vs. Republic. Criminal Appeal No. 276 of 2019. Mr. Shayo was of the settled view, since the victim alleged he had been sodomized twice, then the earliest time he was to report was when the appellant abused him the first time. Conclusively the learned counsel prayed the appeal be allowed by setting aside both conviction and sentence and the appellant be set free. In reply, Mr. Njau submitted that, the evidence adduced by the prosecution was sufficient to convict and sentence the appellant. He argued, the victim clearly narrated how on 27th and 28th November, 2019 was sodomized by the appellant who called him in his room, undressed him and inserted his penis in his anus. Such evidence was coming from the victim hence the best evidence in sexual offences as per the authority in the case of Selemani Makumba Vs. Republic, Criminal Appeal F20061 TLR. The learned Attorney further submitted, the bicycle accident occurred after the victim was sodomized. It was Mr. Njau’s Page 7 of 15 further argument that, PW5 had noticed fresh bruises on the buttocks but went on to examine the anus and observed that the sphincter tone was loose and was discharging feaces without any control. There was thus penetration, hence the evidence was collaborating the victim’s testimony. Responding to the issue of difference on dates (27th and 28th) the learned Senior State Attorney submitted, the law is settled that inconsistence of dates cannot go to the extent of dismissing the evidence incriminating the appellant. The charge sheet states the incident occurred on 27th and 28th November, 2019 in line with the victim's evidence. Therefore, such inconsistence should be disregarded as it does not go to the root of the offence charged. Regarding the fact that the victim did not mention the appellant at the earliest possible time, the record is that the victim had reported to his mother (PW1) and mentioned the appellant. He demonstrated the appellant had inserted his penis in his anus. The same was corroborated by PW5 and Exhibit PI which proved the victim was penetrated against the order of nature. Page 8 of 15 As far as the credibility of the victim’s evidence is concerned (that of PW2), the (earned Attorney stated, his credibility and evidence was properly observed and assessed. This Court is also called upon to assess the same, by considering the coherence of testimony and comparison of such testimony to other testimony including that of the prosecution witnesses. PW2 persistently mentioned the appellant as his culprit and he never changed his testimony. Further, it was easy to identify the appellant who apparently was their n e ig h b o u r, a fact that was never disputed by the appellant. More so, he even admitted that he had no grudges with him. He cited the case of Goodluck Kvando Vs. Republic, Criminal Appeal 120061 TLR in support thereof. Lastly, on failure to properly evaluate the evidence, Mr. Njau argued, section 312(11 of Criminal Procedure Act. Cap 20 R E. 2019 provides a judgment should contain therein facts for determination, decision and reasons thereto. In the instant appeal there was no failure of evaluation of evidence as issues were framed, witnesses’ evidence properly evaluated and reasons given for each point evaluated. He finally prayed this court finds the appellant was properly convicted Page 9 of 15 and accordingly sentenced, hence the appeal be dismissed forthwith. In his brief rejoinder, Mr. Shayo reiterated his earlier submission and emphasized, there was no sufficient evidence to warrant the appellant’s conviction. He added, (PW5), the Doctor did not disclose the cause of the loose anus. He insisted the case was not proved at the required standard and prayed the court does allow the appeal. After going through the trial court’s records as well as parties' submissions, I will now determine the grounds of appeal. Starting with the 1st and 3rd grounds which are centered on the issue, whether the case against the appellant was proved at the required standard. It is on record, the appellant called the victim who was playing near his house, took him inside and carnally knew him against the order of nature. According to the victim, the incident happened a day after he was involved in a bicycle accident. He reported to his mother that he had difficulties when defecating. He was thus taken to the hospital, and the medical examination revealed, apart from bruises in his buttocks, his anus was loose as feaces were discharging without control. This piece of Page10 of 15 evidence was corroborated by (PW3) the victim’s mother, (PW4) the victim’s grandfather. PW5 (the Medical Doctor) after examining the victim made the following conclusion as recorded in Exhibit PI - PF3: - “Fresh bruises to both buttocks, feces discharging involuntarily through the anus ... loose Anal sphincter tone, No Anal bleeding ... HIV test; NON-R ACTIVE ... Sexual violence, there is evidence of penetration by a blunt object to the anus, Patient was admitted on the hospital for 6 days. Was kept on Diclofenac inj, inj. Am p/c/ox, inj. Pethodine, IV Metronidazole, Ampiclox, Metronidazole and Diclofenac tablets. Was kept on SIT BATH with Dettol for 5 days. To come for follow up on 18/12/2019. ” This suffices to conclude that, he was penetrated through by a blunt object as his sphincter muscles were loosened and widened. The court in view thereof is of the opinion that PW5’s evidence had weight. I am fortified in my opinion by the authority in the case of Republic Vs. Kristin Cameroon r20031 TLR 84, where it was stated; Page 11 of 15 "The evidence of an expert is likely to carry more weight than that of an ordinary witness.” The foregoing notwithstanding, the court finds PW5’s testimony corroborates that of the victim. The court is alive that the law is settled and a number of Court of Appeal decisions are at one that, the best evidence of sexual offences must come from the victim herself/himself. That position was well enunciated in the case of Selemani Makumba Vs. Republic F20061 TLR 380. 1am further inspired by the case of Crosperv Ntaaalinda @ Koro Vs. Republic, Criminal Appeal No. 312 of 2015, CAT-Bukoba (unreportedV where the Apex Court stated: - “Every witness is entitled to credence and his testimony believed unless there are good and sufficient reasons for not believing the witness The victim narrated of how the appellant called him to his house, undressed him and inserted his penis in his anus. The victim's testimony in that regard which proved penetration and corroborated by that of other prosecution witnesses was direct, coherent and the appellant never raised doubts as to why the prosecution witnesses shouldn't be trusted. There Page 12 of 15 was no any conflict or grudges between them, thus I do not see why the victim would lie against the appellant to make this court consider his testimony untrustworthy. It has been argued the bruises and pain in the victim’s anus might have been a result of a bicycle accident, however, as rightly analyzed by the trial magistrate had the victim been injured by a sharp object, that would have raised a doubt. The medical expert confirmed the victim’s anus being penetrated through by a blunt object and the victim himself mentioned the appellant had used his penis to penetrate his anus. This Court is thus of the settled mind PW2 was penetrated against the order of nature and there was no indication that the same was caused by an accident. In the upshot I find the case against the appellant was proved beyond reasonable doubt, therefore, the 1st and 3rd grounds are meritless and are hereby dismissed. Coming down to the 4th ground on analysis of evidence, if is my considered opinion that, the trial magistrate thoroughly evaluated the evidence before her and came up with a rational decision. As rightly submitted by the respondent’s Senior Attorney, the trial magistrate raised three issues to wit; Page 13 of 15 whether the victim was sodomized, if yes who sodomized him and lastly if the case was proven at the required standard. On the first issue she stated how the victim reported to his mother on what befell him and on reaching the hospital, it was confirmed that he was penetrated through. Secondly, she also remarked on how the victim mentioned his assailant at the earliest possible opportunity and concluded the prosecution managed to prove their case at the required standard. This court is in all fours with the trial magistrate's evaluation of evidence and consequently the outcome. I find no need to fault the trial court’s decision. The 4th ground also fails. In light of the above analysis, it is my settled finding that, the respondent managed to prove the case against the appellant to the required standard in criminal jurisprudence. In the circumstances, this appeal is dismissed and the trial court’s decision is upheld. It is so ordered. r~ B. R. MUTUNGI JUDGE 11/ 11/2021 Page 14 of 15 Judgment read this day of 11/11/2021 in presence of the appellant and Mr. Innocent Njau (S.S.A) for the respondent. \■—- ■ ^ B. R. MUTUNGI JUDGE 11/ 11/2021 RIGHT OF APPEAL EXPLAINED. B. R. MUTUNGI JUDGE 11/ 11/2021 Page 15 of 15