richard august michael kisamo vs republic 2021 tzhc 9175 7 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI CRIMINAL APPEAL N0.50 OF 2021 (Originating from Criminal Case No. 74 of 2020 of the District Court of Moshi at Moshi) RICHARD AUGUST MICHAEL® KISAMO APPELLANT VERSUS THE REPUBLIC..................... . RESPONDENT JUDGMENT 8/11/2021 & 07/12/2021 SIMFUKWE, 3. The appellant Richard August Michael @ Kisamo was charged and convicted with unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [Cap 16 R.E 2002] as amended by section 185 of the Law of the Child, 2009. He was sentenced to life imprisonment pursuant to section 154 (2) of the Penal Code, Cap 16 R.E 2002 as amended. Before the trial court it was alleged that on 19th March, 2019 in the evening the victim EDM (PW1) while on his way to his friend Devi, he met the accused who took hold of him to a farm where the accused undressed him. The accused also undressed his trouser and laid on top of the victim who was laid down with his face facing down. That, the accused sodomised the victim while threatening him with a knife and warned him that if he dares to tell his father he will kill him with a knife. However, later on PW1 told his paternal uncle who on 25/3/2019 at about 20:00 hrs informed PW2 the father of the victim (PW1). PW2 interrogated the victim who narrated the ordeal to his father PW2. Then, the incident was reported to the police station. The victim was medically examined at the hospital. It was alleged further that, the accused had escaped after the incident, but he was apprehended later and arraigned before the court. In his defence the appellant denied to have committed the offence and alleged that the case was fabricated against him due to grudges. The trial court found among other things that the ingredients of the offence, thus penetration against the order of nature were proved. The age of the victim was also found to have been proved. The appellant was aggrieved by the decision of the trial court, he lodged this appeal against both conviction and sentence on the following grounds: 1. That, the learned trial Magistrate grossly erred in both law and fact in convicting and sentencing the Appellant despite the charge being not proved beyond reasonable doubt against the Appellant and to the required standard by the law. 2. That, the learned trial Magistrate grossly erred in both law and fact in basing the Appellant's conviction on the victim's evidence (PW1) who was a child o f tender age. But failed to note that, the evidence o f the said victim was taken in contravention o f section 127 (2) o f T.E.A, CAP 6 R.E 2019, as PW1 never promised to speak the truth and not lies before the court in conformity to the above-mentioned section o f law. 2 3. That, the learned trial Magistrate grossly erred in both law and fact in failing to consider that an unexplained delay by PW1 (the victim o f the alleged offence) to disclose to any person especially his father (PW2) who (sic) he was living withr the information o f being unnaturally entered at the very earliest possible opportunity, casts serious doubts on the credibility o f this witness and cannot attract the confidence o f her testimony before the court o fJaw. 4. That, the learned trial magistrate grossly erred in both law and fact in not being scrupulous to note that PW2 (PW l'S father ) testified that, he was told by his son (PW1) that the one who did an ordeal against him is one "Masikio". But When PW1 was testifying he never mentioned "Masikio" to be the name o f the Appellant nor the Appellant himself. 5. That, the learned trial Magistrate grossly erred in both law and fact in convicting and sentencing the Appellant basing on weak, tenuous, contradictory, inconsistency, uncorroborated and wholly unreliable prosecution witnesses. 6. That, the learned trial Magistrate grossly erred in both law and fact by being adamant that, the Appellant's defence evidence did not raise any reasonable doubt on the prosecution case. The Appellant prayed that this appeal should be allowed, conviction be quashed and sentence be set aside and let him at liberty. The appeal was argued by way of written submissions. The Appellant was unrepresented while Mr. Philbert G. Mashurano learned State Attorney argued the appeal for the Respondent Republic. The Appellant argued among other things that the offence of which he was charged Involved a heavy punishment in which the Appellant was convicted and sentenced to serve, for that reason(s) the prosecution side was duty bound to prove the offence against the Appellant as per section 110 (2) of the Tanzania Evidence Act (Cap 6 R.E 2002) which states as follows: - S.110 (2) when a person is bound to prove the existence o f any fact it is said that the burden o fprooflies on that person. That, it is crystal clear guided with the above provision of law (supra) that the prosecution had to prove and clearly show that RICHARD AUGUST MICHAEL @KISAM0 did have carnal knowledge to one Erick a boy of 13 years old against the order of nature. In other words, the evidence which had to be brought by the prosecution side, had to be strong and detailed in itself in order to convince the trial court to enter the sentence of life imprisonment against the Appellant and nothing short of that. The Appellant submitted further that the prosecution failed to call one of key witnesses the Doctor who had very potential information for he is alleged to have received and examined the victim. He cited the case of AZIZ ABDALLAH V. REPUBLIC [1991] TLR 71 (CA) in which it was held that: "The general and well-known rule is that the prosecution is under prima facie duty to calf those witnesses who from their connection with the transaction in question are able to testify on material facts. I f such witnesses are not called and are within reach without 4 sufficient reason(s) being given (shown) the court may draw an inference adverse to prosecution. " The Appellant commented that, no sufficient reason (s) had been shown as to why the doctor who was relevant and connected to the transaction in question was not called to testify. He urged this court to draw an inference adverse to prosecution as it was held in the case of AZIZ ABDALLAH (supra). He was of strong view that the prosecution side had failed in totality to prove that the Appellant did have carnal knowledge to the victim against the order of nature to the required standard. On the second ground of appeal, the Appellant submitted that there was violation of law in receipt of the evidence of the victim (PW1 who was a child of tender age as per section 127 (2) of Tanzania Evidence Act, Cap 6 R.E 2019. That, according to this section the only thing that the trial Magistrate had to satisfy is that a child of tender age or a victim of sexual offence is telling nothing but the truth after promising the court to tell the truth. He said in this case, the victim of sexual offence never promised the court to tell the truth and not lies. The trial court never tested the credibility and reliability of the victim. On the third ground of appeal, it was submitted that the trial magistrate failed to consider that there was an unexplained delay by PWl (the victim) to disclose to any person especially his father (PW2) of the allegation that the Appellant did have carnal knowledge to the said victim against the order of nature at the very earliest possible opportunity, the allegation which casts a serious doubt on reliability and credibility to the evidence of the victim. The Appellant cemented his submissions by referring to the case of JARIBU ABDALLAH V. R; Criminal Appeal No. 220 of 1994, GAT at Dar es Salaam, where it was held that: "The ability o f a witness to name the suspect at the earliest possible opportunity is an all assurance o f his reliability, in the same way unexplained delay or failure to do so should put a prudent court to inquiry." It was the Appellant's strong view that this honourable Court will amplify the findings of the above case hence, see merit in this ground of appeal and give him a benefit of doubt and accord him an acquittal. On the fourth ground of appeal, it was submitted that the trial Magistrate failed to scrupulously note that (PW2) the father of the victim testified that he was told by the victim that MASIKIO is the one who committed the offence against him. However, while testifying the victim never mentioned the alleged MASIKIO as the real name of the Appellant as the one who committed the incidence of unnatural act against him. That, the victim testified to the effect that the Appellant's name is RICHARD and not MASIKIO. Thus, the Appellant herein is innocent and that the prosecution was supposed to find MASIKIO. On the sixth ground of appeal, the Appellant submitted inter alia that the trial Magistrate accorded no weight to his defence for being not sufficient enough to raise any reasonable doubt to the prosecution side. That, had the trial Magistrate considered the defence of the 6 Appellant, he would have confirmed that there was a family outrage between the Appellant and the other party. In his reply, Mr. Philbert Mashurano supported the conviction and sentence against the Appellant. Contesting the second ground of appeal, Mr. Mashurano quoted section 127 (2) of the Evidence Act (supra) which provides that: "A child o f tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell truth to the court and not to tell any lie." He submitted that, going through records at page 8 of the trial court proceedings it is crystal clear that PW1 gave his testimony in court under oath since he understood the meaning of oath, thus he was not bound to promise to tell the court the truth and not lies as required under the quoted provision above. That, since the testimony of PW1 was taken under oath, then the requirement under section 127 (2) was well observed and considered by the presiding Magistrate. Replying to the third ground of appeal that PW1 on delaying reporting the matter to any person or to PW2 his father raise doubt on the credibility of PWi; the learned State Attorney submitted that it is very clear from the record that the Appellant threatened PWI not to report the incidence to any person as he will be making follow up around their home as evidenced at page 8 of the proceedings. Mr. Mashurano referred to the case of GOODLUCK KYANDO VS. REPUBLIC [2006] TLR 263 where the Court laid down the following principle: "Every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons not believing a witness. " That, the presiding trial Magistrate did not mark any reasonable or cogent ground not to believe PWl's testimony. That the Magistrate went further to address the credibility of PW l that he was telling nothing but the truth at page 5 of the judgment. The learned State Attorney also referred to section 62 of the Evidence Act which provides that: "62 (1) Ora! evidence must, in a ll cases whatever, be direct; that is to say- (a) I f it refers to a fact which could be seen, it must be the evidence o f a witness who says he saw i t " Mr. Mashurano went on to submit that it is trite law that, minor contradictions and discrepancies, if there is any, which do not touch the root of the case, need to be ignored. The same position was held by the Court in the case of one CROSPERY NTANGALINDA @ KORO vs REPUBLIC, Criminal Appeal No. 312 of 2015, CAT BUKOBA (unreported) at page 28 the Court held that: "It is not every discrepancy in the prosecution case that w ill cause the prosecution case to flop. It is only if the gist o f the evidence is contradictory that prosecution case will dismantle." Submitting on the sixth ground of appeal, Mr. Mashurano submitted that it is also clear from the record that Appellant's defence and mitigation were taken into consideration by the presiding honourable Magistrate. That, the same can be evidenced at page 3 of the judgment, but the same did not raise any doubt on prosecution evidence. He cited the case of CHRISTIAN KALE AND ANOTHER VS REPUBLIC [1992] TLR 302 (CAT) in which the Court held that: "An accused ought not to be convicted on the weakness o f his defence but on the strength o f prosecution case." Replying the first ground of appeal, that the prosecution case was not proved beyond reasonable doubt, Mr. Mashurano submitted that, it is well settled that the burden of proving a criminal case is on the prosecution side. He cited the well-known case of WOOLMINGTON VS DPP [1935]AC 462 in which it was held that: "It is the duty o f the prosecution side to prove its case and the standard o fproof is beyond ail reasonable doubt," The learned State Attorney cited another case of PASCAL MWITA AND 2 OTHERS VS REPUBLIC [1977] TLR 54 in which the Court held that: "The Appellants' duty was not to prove that their defense were true. They are simply required to raise a reasonable doubt in the mind o f the Magistrate and no more." Mr. Mashurano commented that the prosecution case was proved beyond all reasonable required standard by the law based on the reasonable and cogent grounds given and analysed above. He added that, the prosecution paraded 3 witnesses and among them, PW1 who was the victim testified as to how the Appellant sodomised him 9 and how the same took place at the farm as evidenced at page 8,9 and 10 of the proceedings. That, evidence of all the 3 witnesses corroborated. To support his argument, the learned State Attorney referred the case of DPP VS HESTER (1973) AC 296 in which the Court held that: "The purpose o f corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but oniy to confirm or support that which as evidence is sufficient and satisfactory and credible." He went on to contend that all of prosecution witnesses (PW1, PW2 and PW3) were credible and worth to be trusted by the court since there was no any reasonable and cogent ground marked by the court for them not to be trusted of their testimony. In conclusion, Mr Mashurano was of the view that, although a PF3 of the victim was not tendered before the court as prosecution exhibit, penetration was proved through the testimony of PW1. He cited the case of EDWARD NZEBUYA VS REPUBLIC, CRIMINAL APPEAL NO. 136 OF 2008 (unreported) where the Court held that: "Penetration can be proved orally and without an expert opinion or oral evidence by experts, that is to say without a doctor who examined the victim testifying in court and or tendering PF3. An expert opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge o f a Judge or Jury. I f on the proven facts a Judge or Jury can form their own conclusions without help, then the opinion o f an expert is unnecessary." 10 He prayed that this appeal be dismissed for lack of merit. In his very brief rejoinder, the Appellant reiterated that the prosecution failed to prove their case beyond reasonable doubt. He insisted that this appeal be allowed, hence sentence against him be quashed and set him at liberty. That marked the end of the rival submissions of both parties. I have examined the trial court's record, the grounds of appeal and submissions of both parties. Starting with the first ground of appeal, that the charge was not proved beyond reasonable doubt, the Appellant argued among other things that the evidence which had to be brought by the prosecution side had to be strong and detailed in itself in order to convince the trial court. That in this case, the prosecution failed to call the doctor who examined the victim of sexual offence. According to the record the said doctor was alleged to be attending studies at KCMC University. With respect, I am of considered view that KCMC University being within Moshi Municipality the prosecution should have tried their best to call the said doctor as their key witness. I am aware that evidence of the victim of sexual offence may suffice to ground a conviction even without being corroborated with evidence of other prosecution witnesses. In this matter, I agree with the Appellant that, the doctor who examined the victim could have supported evidence of the victim to be more credible and reliable. Otherwise, apart from mere words of the victim, no one examined the victim to prove that there was penetration however slight. 11 Penetration is among the key ingredients of unnatural offence; thus, its proof was of utmost importance. On the second ground of Appeal, I concur with the learned State Attorney that since PWI gave his evidence on oath, there was no need of promising to tell the truth as he understood the meaning of oath, On the third ground that unexplained delay by PWI, the victim casts serious doubts on credibility of PWI. The learned State Attorney replied that it is very clear from the record that the Appellant threatened PWI not to report the incidence to any person as evidenced at page 8 of the proceedings. I think the testimony of PWi that he was threatened by the Appellant sufficed to explain the alleged delay provided the rest of the version of testimony of the victim proves the offence charged beyond reasonable doubts. On the fourth ground of appeal which in respect of a nick name of the Appellant "MASIKIO", I am of considered opinion that since the victim and the Appellant are relatives and know each other very well, this ground lacks merit. I could have a different opinion if the Appellant was a stranger to the victim. During the preliminary hearing, the Appellant admitted that he knew the victim. On the fifth ground of appeal that the trial court convicted the Appellant basing on weak, tenuous, contradictory, inconsistent, uncorroborated and wholly unreliable prosecution evidence; the learned State Attorney alleged that the said ground is too general and that the Appellant failed to be specific and point out those weak, tenuous, contradictory, inconsistent, uncorroborated and unreliable 12 prosecution evidence. From the submissions of the Appellant which were random, it may be noted that the Appellant challenged the whole prosecution evidence. Though vague, I find this ground of appeal to have merit having in mind the findings on the first ground of appeal. Looking at the charge sheet even the time of commission of offence is not indicated. During preliminary hearing, the prosecution alleged that the offence was committed at about 17:30 hrs while in his testimony the victim alleged that the offence was committed at 16:00hrs. Among the prosecution witnesses who testified, (PW2 and PW3) no one among them said that he examined the victim. I support the contention of the Appellant that the offence of which he was convicted of involve a heavy punishment, thus evidence which had to be adduced by the prosecution side had to be watertight. In this case evidence of the 3 prosecution witnesses was shaky and not sufficient to warrant conviction of the serious offence of unnatural offence of which the Appellant was convicted. Penetration was not proved beyond reasonable doubt. Even the time of commission of offence was not proved as the charge sheet did not indicate the same. Time stated during preliminary hearing contradicted with the time stated by the victim. The findings on the first and fifth ground of appeal dispose of the appeal, that's why I have not discussed the sixth ground of appeal. I therefore find the two grounds of appeal to have merit. On the basis of the same I hereby quash conviction against the Appellant and set aside the sentence of life imprisonment. The Appellant is ordered to 13 be released from custody immediately unless held for other lawful reasons. Appeal allowed. Dated and delivered at Moshi this 07th day of December,2021. 07/12/2021 14