deus cleofas vs republic 2021 tzhc 9076 30 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA CRIMINAL APPEAL NO. 72 OF 2021 (Originating from the District Court of Chunya, at Chunya, in Criminal Case No. 24 of 2021) DEUS CLEOFAS.................................................................... APPELLANT VERSUS REPUBLIC...................................................................... RESPONDENT JUDGMENT Date of last Order: 27.09.2021 Date of Judgment: 30.11.2021 Ebrahim, J. In the District Court of Chunya District, at Chunya the appellant was charged and convicted for unnatural offence of a boy child of the age of seven (7) years whom I shall be referring to as "the victim" for the purpose of hiding his identity. The charge was predicated under section 154(l)(a) of the Penal Code, Cap. 16 R.E 2019 (the Penal Code). He was sentenced to life imprisonment. He was aggrieved, hence this appeal. Page 1 of 14 The accusation by the prosecution against the appellant as reflected in the particulars of the offence was that; on 25th January, 2021 at TRM street of Makongolosi township within the District of Chunya in Mbeya Region, the appellant had carnal knowledge of the victim, a child aged seven years against the order of nature. The prosecution lined up a total of six (5) witnesses and one exhibits (the PF3) in their verge to prove the charge against the appellant. The material facts of the case as unveiled in the trial court record during the trial may briefly be recapitulated thus: On the material date, the appellant found the victim and other children playing within the compound of the victim’s home. He tricked the victim by telling him to accompany him (appellant) in the forest to pick mangoes. The victim caught into a trap, boarded the appellant’s bicycle. The two went in a bush a bit far from the victim’s home. When they reached there, the appellant ordered the victim to undress his clothes and ordered him to lay down facing down ward. The appellant also undressed his clothes, laid on top of the victim and inserted his penis into the victim’s anus then ravished him. The victim felt pain. When he Page 2 of 14 tried to cry the appellant covered his mouth and threatened to do a bad thing to him. When he completed his evil act, the two dressed up then the appellant carried the victim on his bicycle and returned to the victim's home. On their way back home, they met with the victim's uncle. The uncle asked the victim who was the person he is accompanied with. The victim pointed at the appellant to be his companion. The appellant told the victim’s uncle that they were coming to fetch medicine for victim’s father. The uncle tried to call the victim’s parents by phone but they were all out of reach. At home, the victim’s mother searched him for in vain. She reported the missing of the victim to his father. The victim’s father suggested for her to report the missing of the victim to the police. On her way to the police near their home she saw the victim coming looking dirty. She took him at their home and asked where he was. The victim narrated the story of what befallen him to his mother. She then took him to police at Makongolosi, he was availed with PF3. The victim was thus taken to Chunya District hospital for examination. The examination result showed that there Page 3 of 14 were bruises on the outer port ot the victim’s onus and it had been enlarged by a blunt object. The appellant was arrested after four days of the incidence i.e on 29/1/2021 by the aid of the victim and his uncle. It was the victim who saw his ravisher at the home of his aunt and informed her to be the same person who did a bad act to him. The uncle also recognized him since he met the two on the day of the incident. However, the appellant denied to had committed the offence at both the police and before the court. His denial notwithstanding, the trial magistrate was satisfied that the prosecution had proved the charge against him to the hilt and proceeded to convict and sentence him as stated earlier. In his petition of appeal the appellant preferred eight (8) grounds of appeal which were to the effect that: 1. The trial court erred in law and fact when it convicted and sentenced him while the prosecution did not prove the case beyond reasonable doubt. 2. That the trial court erred in law and fact when it relied on the evidence of the victim a child of tender age which was received in contravention with law on voire dire test. Page 4 of 14 3. That the trial court erred in law and tact in convicting him while the age of the child was not proved by birth certificate. 4. That the trial court erred in law and fact when it convicted and sentenced him relying on hearsay evidence. 5. That the trial court erred in law and fact when it failed to consider the defence evidence. 6. That the trial court erred in law and fact to convict and sentence him while the prosecution did not call any local leader of the area to prove his guilty. 7. That the trial court erred in law and fact to convict him by relying on the evidence of a medical officer who did not state his working experience and he did not mention the date of receiving the victim. 8. That the trial court erred in law and fact to convict him by relying on the contradicted evidence of the doctor who examined the victim. Basing on these grounds of appeal, the appellant prayed for this court to allow the appeal, quash the conviction, set aside the sentence and set him free. Page 5 of 14 During hearing of the appeal, the appellant appeared in person, unrepresented vide virtual court while in Ruanda prison. The respondent/Republic appeared through Mr. Davis Msanga, learned State Attorney who was physically present in court. The appellant prayed for the court to adopt his grounds of appeal, consider them and set him free. In response, Mr. Msanga objected the appeal. He supported the conviction and sentence passed by the trial court. Generally, Mr. Msanga contended that the grounds of appeal preferred by the appellant revolved on one ground that the prosecution did not prove the case at the required standard, i.e beyond reasonable doubt. He thus, argued them together. Mr. Msanga contended that the case was proved beyond reasonable doubt through the evidence of the victim who was able to narrate how the incidence occurred and who sodomized him. According to him the evidence of the victim can alone base a conviction in sexual offences. To that effect he cited the case of Edward Nzabuga v. Republic, Criminal Appeal No. 136 of 2008. The evidence of the victim was corroborated by PW4 (the uncle of the victim) who met with them when they were coming from Page 6 of 14 the forest, Mr. Msanga argued. He contended further that all witnesses called by the prosecution managed to prove the case by narrating how the incident occurred and how the appellant was arrested. Furthermore, Mr. Msanga argued that the age of the victim was proved by the victim’s mother who testified as PW1. She said that the victim was born on 07/01/2014. Therefore, the victim was seven years old. Learned State Attorney cited the case of George Maili Kemboge v. Republic, Criminal Appeal No. 327 of 2013 Court of Appeal of Tanzania (CAT) at Mwanza where it was held that a parent is better positioned to know the age of his child. He continued to argue that conducting voire dire test is no longer a requirement of the law. Section 127 (7) of the Evidence Act, Cap. 6 R.E 2019 requires a child witness to promise to tell the truth. He also referred to the case of Jacob Mayani v. Republic, Criminal Appeal No. 558 of 2016 CAT at Shinyanga. The learned state attorney opposed all complaints of the appellant that the trial court relied on hearsay evidence, and that a local government leader was not called as not the requirement of the law. He said the defence evidence did not shake the Page 7 of 14 evidence by the prosecution therefore, the trial court was correct to rely on it. He also argued that the medical officer who conducted examination to the victim was an experienced person and competent to testify in court. He thus urged this court to dismiss the appeal. The appellant had nothing useful to re-join. Having considered the grounds of appeal, the submissions by the learned State Attorney for the respondent the record, and the law; I agree with Mr. Msanga that the main complaint by the appellant is that the prosecution did not prove the case beyond reasonable doubt. I shall therefore determine the issue of whether or not the prosecution proved the case the required standard set by the law. The answer to the issue shall be arrived upon dwelling on each complaint (forming ground 2 to 8 of the appeal). As to the complaint that voire dire test was not conducted, I visited the proceedings on record and found that the trial court followed the law before receiving the evidence of the victim. To make it clear, before the amendment of section 127 of the Evidence Act vide section 26 (a) of the Written Laws (Miscellaneous Amendments) Act No. 4 of 2016, a court was Page 8 of 14 required to ascertain if a child of tender age knows the meaning of oath and possesses sufficient intelligence to justify reception of his or her evidence. However, after the amendment, currently the court is only required to test the child to ensure that the said witness promises to tell the truth. This means that there is no requirement to test if the child possesses sufficient (see the case of Shaibu Nalinga v. Republic, Criminal Appeal No. 34 of 2019, CAT at Mtwara (unreported)). The appellant’s complaint thus, has no merit. On the complaint that there was no documentary evidence to prove the age of the victim. The appellant totally misconceived the law. The legal position is that a parent is better positioned to know the age of his child; see the case of George Maili Kemboge v. Republic (supra). Therefore, when the mother or father of the victim testifies as to the victim’s age, it means the age is proved. Yes, birth certificate can corroborate an oral testimony of the victim’s parent, but failure to tender it is not fatal to the extent of rendering the court to discard the evidence. In the instant case, the victim's mother who testified as PW 1 said that the victim was born on 07/01/2014. Therefore, on the date of the ordeal befallen Page 9 of 14 him the victim was seven years old and the trial court considered the same. Thus, the trial court did not err. The appellant further complained that he was convicted based on hearsay evidence. He did not explain who among prosecution witness adduced hearsay evidence. The record shows that PW1, testified on how she searched the victim to send him to the shop in vain. Later, on her way to report to the police on the victims she saw disappearance him. When the victim was asked of his whereabouts, he narrated the whole story as to what befallen him. PW2 the victim also testified how the appellant tricked and took him to the forest and sodomised him. PW3, the victim’s aunt testified how the appellant carried maize to her home where the victim was playing. The victim told her that a person who carried maize was the one who lavished him. They called PW4 the victim’s uncle to confirm the allegation of the victim. This was because PW4 told them at the first day that he identified the ravisher when he met them from the forest. Thus, when the appellant was trapped by carrying the maize to the home of PW3 for the second time, PW4 confirmed to be the same guy. Hence, the ravisher. Page 10 of 14 PW5, medical officer testified how he received and examined the victim. He testified the result of his examination to the victim and tendered PF3. From the evidence of all these witnesses, I found no one gave hearsay evidence. Each testified what he or she saw. Nevertheless, the trial court in convicting the appellant dwelt much on the testimony of the victim. This was because in the cases of this nature, the best evidence is that of the victim of offence (see at page 5 to 8 of the typed judgment).Having observed as above, the appellant’s complaint, again lacks merit, I thus dismiss it. Regarding the complaint that the trial court discounted the defence evidence. I concur with learned State Attorney for the respondent that the trial court evaluated the defence evidence but was accorded no weight since it did not raise any reasonable doubt against the strong evidence adduced by the prosecution side. In his defence, the appellant testified that he arrived at Makongolosi on 27/01/2021 from Sumbawanga. The offence was alleged to have been committed on 25/01/2021. Therefore, he raised a defence of alibi. He testified further that he had tickets at Page 11 of 14 the police station but the same was torn by the Station Commanding Otficer (CCS) at the police. The trial court rejected this defence on the ground that it was given without notice as per the requirement of section 194 of the Criminal Procedure Act, Cap. 20 R.E 2019 and per the case of Mwita Mhere & Another v. Republic [2005] TLR 107. I also agree with the trial court findings on this defence. However, I am of the view that though there was no notice given by the appellant for him to rely on the defence of alibi, the appellant did not cross- examine PW4. PW4 testified how he talked to both the appellant and victim when he met with them from the forest where the offence was alleged to have occurred. PW4 also testified on how he had been called to recognize the appellant at the home of PW3 where he recognized and confirmed to be the one he met with the victim. It is a settled law that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of such witness evidence. See the holding in the case of Damiani Ruhele v. Republic, Criminal Appeal No. 501 of 2007 CAT (unreported). In the instant case therefore, failure by the appellant Page 12 of 14 to cross-examine PW4, means he admitted that he was found by him accompanied in with the victim from the forest. And the victim testified that in the forest the appellant sodomised him. Hence the defence that he arrived at Makongolosi on 27/01/2021 was a mere denial of the appellant in his effort to exonerate from liability. I therefore, find no difficulty to reject it as well. This ground of appeal is also dismissed. As to the complaint that no local government leader of the area was called to testify, it has not merit. This is because there is no law which mandatorily requires a local government leader to be called as witness. In my opinion, a local government leader may be called as witness as any other competent witness if he or she is a material witness. However, the appellant did not tell this court if that leader was a material witness. The appellant also complained that there was an error since the medical officer was not examined about his experience. It is another complaint which has not merit. This is because, the record shows that he testified that he had more than 25 years’ experience as a medical doctor. Page 13 of 14 Another complaint was to the effect that the evidence of the prosecution witnesses was contradicting. Since he did not argue his grounds of appeal for him to raise those complained discrepancies, I revisited the evidence adduced by prosecution witnesses. I failed to pin point any contradiction. Having found as above, and upon resolving all the complaints raised by the appellant, it is my position that, the prosecution proved the case beyond reasonable doubt. I therefore, dismiss the entire appeal for lack of merits. Ordered accordingly. Judge Mbeya 30.11.2021 Page 14 of 14 Date: 30.11.2021. Coram: Hon. P. D. Ntumo - PRM, Ag-DR. Appellant: Present, unrepresented. For the Republic: Miss Xaveria Makombe, State Attorney. B/C: P. Nundwe. Court: Judgement delivered in chambers in the presence of the appellant and Miss Xaveria Makombe, learned State Attorney for the Republic/Respondent, this 30th day of November 2021, and is certified true copy of the original. ( P.D. Ntumo - PRM Ag- Deputy Registrar 30/11/2021 DEPUTY REGISTRAR HIGH COURT OF TANZANIA MBEYA