rashid ramadhani vs republic 2021 tzhc 7161 3 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 29 OF 2021 (Original Criminal Case No. 278/2020 of the Kasulu District Court, before Hon. I.D. Batenzi - RM) RASHID RAMADHANI............................................................... APPELLANT VERSUS REPUBLIC RESPONDENT JUDGEMENT Kasulu in Crim iharG ase NQX^78 <of-'2020 charged of Unnatural Offence contrarwto^ection'"154~(^n'a) and (2) of the Penal Code, Cap 16 R.E. 2002 (now RAE. 2019)>it.wasxalleged that he had carnal knowledge of Aman S/O Samwel, a. child aged 9 years old against the order of nature on 2/10/2020. He was found guilty, convicted and sentenced to the mandatory sentence of 30 years. The record reveals that PW1 Dr. Eyelyne Masamu was on duty on 5/10/2020 at 9:30 am when he received PW2 Amani Samwel, a child aged i 9 years. He was brought by a certain woman. He was informed that the child had been sodomized. He questioned PW2 who said that he had been sodomized several times. He checked his underpants which was wet with feces. On further examination, he saw bruises at the sphincter muscles. He concluded that he had been penetrated by a blunt Object at his anus. He filed the PF3 which was tendered as evidence during trial>\\ \\\\ \\ zO z\ \\ - \v / At the trial, PW2 was asked and a made promise to telkthe-truth. The court recorded his evidence without\oath-or affirmation. His evidence real that he was drug by the appellant'during the nigh't on j/10/2020 and entered to the house of Adelina (where hexwas?;undressed by the appellant who inserted his penis (kidudu) iirhis anus (-mfutuni). He was thereby sodomized _ \\ yj by the appella'htWho, threatened"him-not to tell anybody or else he could kill \\ ) X Xx him. ButTaten released thistory-to his grandmother leading to the arrest of the appellant. PW3, whcNs the mother of PW2 got the reports and rushed only to see-.her child in a bad condition. PW2 told her that he had been sodomized by the appellant. PW4 WP 9163 DC Eva was the investigator. She interviewed PW2 and recorded his statement containing what has been said above. 2 The appellant who was the only defence witness denied to commit the crime. He denied the allegations. The trial magistrate found that there was good evidence to convict and proceeded to convict him as pointed out. Aggrieved, the appellant has now come to this court by way of appeal. The grounds upon which the appeal is based can be put^as under: - 1. That, the trial Court Magistrate erred in iaw^andfact'byjjutting into consideration to the weak evidence-providedoy prosecution side and \\ pass sentence against the (appeiiant\despite(of lack of reliable ingredients that constitute<the offence-of unnaturahpffence with which he was convicted. 2. That the trial court magistrate^&^'dipihwjand fact by convicting and sentencing the'appellant reiyihgyon tiie weak evidence adduced by PW2 and/hearsay'ev^nce.adduced by PW3 and PW1 which was not sufficieht'\to prove the^case~in'the standards of proof required in . . \\ / \\ crim^r^Lcases^^-^^. x> 3. [i^tdK'tqai cobrten^ in law and fact by convicting and sentencin the^appella^despite the existence of contradictions and doubts in prosecution,witness. 4. That the^guiity of the appellant was not proved beyond reasonable doubt as required by the laws. 5. That, the trial magistrate erred in law and fact by convicting and sentencing the appellant regardless of the existence of inconsistences in the testimonies ofprosecution witness on material points. 3 6. That, the proceedings were a nullity because the provisions of the section 127 (6) of the evidence act were not complied with. 7. That, the trial magistrate erred in law and fact in disregarding the appellant defence and failure to consider the principal that die accused can not be convicted basing on weaknesses ofhis/her defence but on strength ofprosecution evidence adduced and proved against him. The appellant appeared in person while the respondent Republic was X\X /X represented by Mr. Robert Magige, State Attorney-.. When, the'appellant was <X % asked to argue his appeal, he opted for thesstate\attprney'td start while reserving his right of rejoinder. <Mr. Robert'supportedxhe appeal. He said —x '\\ '^XX that the appeal is based on the'evidence^of PVy2 who is a child offender age / X XX but his evidence wasj'ecorded contrary tdssection 127 (2) of the Evidence Act, Cap 6 R.E.'-2019. He\wentson_to/Say that the court was supposed to \ X \ 1 X X examine if he could give evidence on oath or not and then proceed to ask XXX__ him to .promise'to speak thXtruth and not lie. Counsel submitted that PW2 \\ XX promised.to speak\the truth in page 11 of the proceedings but the court did not ask him^theXest questions. He referred the court to Issa Salum Nambaluka v. Republic, Court of Appeal of Tanzania, Criminal Appeal No. 272 of 2018, page 12 to see the procedure of recording evidence of children of tender age. He added that the crime was committed during the night but PW2 did not explain the source of light. He was supposed to say the Way he 4 could identify him as per the case of Waziri Amani v. Republic [1980] TLR 250. Further PW2 said that there were three other people at the scene of crime but it was not shown why they could not be called as witnesses. He argued the court to allow the appeal. The appellant made a rejoinder and argued the^ourt to set him free because the evidence adduced by the victfrin^did not\meet the legal standards. \\ /'Xv '"'S I have considered the grounds of^appeal.ahd-the'submissions made by the parties. I have no problem'with the failure to give-details of light for the evidence shows that PW2\was pickecffromThe house of one God and moved \ X ? ZX X XX with the appellant toXXgivehs,'cones'.) He knew the appellant and moved Z'T-'s \ \ __ S J with him for^a^consi'derablexdistancFbefore he was finally drugged to the \> house^where^hq^was^so^mized. The circumstance does not give doubts of identification. HeXnew the person he was dealing with whom he had walked for a considerable.distance making the case of Waziri Amani distinguishable. In the like manner I don't think that failure to call some other people can have any negative impact to the prosecution case because the prosecution has a right to choose and bring witnesses of their own choice. There is no law which compel the prosecution to call a particular witness only that if they 5 fail to bring key witnesses they face the consequences of failing to prove their case. My problem is on the failure to follow the procedure contained under section 127 (2) of the Evidence Act and the consequences. The record of the "PW2 Amani Samwei, 9 years, Murusi,^student, Christian. <\ Court: The witness is a child oftender age. HeJs/askedto make ''W X k' a promise to tell the truth. \ \\ Signed I.D. Batenzi RM \\ \\ \ \X \\ ' 3/11/2020 \( „ \\ \\ v\ X X x \X Witness: I promise tcbteii the truth and not lies. Court:/The evidence 'ofa tender^chiid is received. {3/ii/2£o\\\ W XD BYPP ) ’) A \\ f J XA-— lam caiiedAman Samwel..." The state attorney says that the procedure contained in section TJ (2) of the Evidence Act was not be followed properly and I think he is correct. 6 Section 27 (2) of the Evidence Act was given judicial consideration in Issa Salum Nambaluka (supra). The court had this to say in pages 9-13. "It is undisputabie fact that at the time ofgiving evidence, PW1 was a child of tender age. Section 127 of the Evidence Act defines who a child of tender age is... a childwhose apparent \,\ age is not more than fourteen years. According to the record, at the time of giving her evidence, PW1 was.aged 14-years thus \vX X? fitting the definition of a child of tender ag^.^eCagewasyiot more that 14 years. The procedure fortakinglheyevidence of a From the plain meaning of the provisio'nsjof subsection (2) of \\ / section 127 ofthe Eyidence Act'... achiid of tender age give \\ \\ \ evidencewith^oathsor'making^affirmation or without oath or affirmation. ThiS'.^sbecause the section is crashed in permissive teffhS'ps regard-the^manner in which a child witness may give eyidencesln the situation where a child witness is to give evidence without oath or affirmation, he or she must XX )i makea.prpmise to tell the truth and undertake not to tell lies. Section 127 of the Evidence Act is however, silent on the method of determining whether such child may be required to give evidence on oath or affirmation or not. It is for this reason that in the case of Godfrey Wilson v. Republic, Criminal Appeal No. 168 of 2018 (unreported) we 7 stated that, where a witness is a child of tender age, a trial court should at the fore most, ask few pertinent questions so as to determine whether or not the child witness understand the nature of oath. If he replies in the affirmative then he or she can proceed to give evidence on oath or affirmation depending on the religion professed by such child witness. Ifsuch child does not understand the nature of oath, he or she should, before giving evidence, ber required tbpromiSe,to tell the truth and not tell lies. In the^above^^wepbs^&^s follows: "we think the trial magistrate\or Judge^c^ask the ( \\ \ if \ ■ X \ \ \ witness ofa tender age such simplifiedquestions;.yvhich may not be exhaustive depending ondhe circumstances) of the case as follows: - I/' \\ X\ 1. The agedfthechild:^' '\\ X> \ \ \\ 2. The religioh'which-the childp.rofesses and whether he/she y—'■\X ' ‘y understands XX ' / i thenature'bfoath. X_X ,■■^3. 'Whether pr riot the child promises to tell the truth and not ( toteiidies)"(Emphasis added) 'k\\ \ \\ \\ XX x? Looking at the^procedure laid down by the Court of Appeal and what was done by'th'e-m'agistrate, one can see clearly that the evidence of PW2 was recorded contrary to section 127 (2) of the Evidence Act. It was recorded illegally so to speak. The question is what should be done? The state attorney and the accused have the view that I should allow the appeal and set the 8 appellant free. With respect to the views of the state attorney, I have a different opinion. I think the court should be balanced and check the position of the victim as well. In this regard, I feel persuaded by the views of the Supreme Court of India made in Ritesh Sinha Verus State of Uttar Pradesh and Another, Criminal Appeal No. 2003 of'2012 available on line at https//Indiankanoon.org'NX\ex\ it was said as'under: \\ " The processual law so dominatesjn cer^rfsvste^ras to overpower substantive rights andsubstantialjustice. The humanist rule that procedure should'be'thejiandmaid, not the mistress, of legal justice, compels■'‘consideration of vesting a residuary power in[judge to,.a^ex\deb/tp justiciae where the tragic sequel ^otherwise wouid\be miolly inequitable...! must W \\ ■')') sound a.pessimistic^pote-that it is too puritanical for a legal system^k^aCrifice end"product of equity and good conscience arfheaitaryrtt'processualpunctiliousness and it is not \^orad^ai'tom/j^a^eakdown of obvious justice by bending snajpiy, if need be; the prescriptions ofprocedure. The wages of procedural sin should never be the death of right" [Emphasisls ours] The Court of Appeal had a similar observation in Haruna Mpangaos and others versus Tanzania Portland Cement Co. Ltd, Civil Application No. 98 of 2008 page 18 when it said: 9 "There is no way in which the court can now turn its back against its own mistake and through the blame to the applicant alone." Coming to our case, one can see that the errors were done by the court not the victim of crime. This error should not therefore be used as a peg to take away the rights of the victim of crime or give the accused an unjust benefit. If the magistrate failed to follow^the procedure of recording the evidence of a child of tender age it does ndt^me^h'tha^ti^e.enm'e was \\ not committed. We should not therefore actin a manner which will allow procedural sins committed by thexcourtXo affect^or'take)away the rights of \\ \\ the victim which may otherwise be inexistence. This is one of scenarios is where the famous sayings quoted’, a bove;T/re wages of procedural sin should neverbe the death ofright, should come to play. It is.for thiS'.reason .thatThave the view that this is not a fit case to allowrtheappe'al'based'on the'errors and set the appellant free who should \\ \\ have otherwise been in prison if the procedure had been followed. It is a case, fit for revision and not otherwise. With that in mind, I exercise the revision jurisdiction of this court contained in section 44 (1) of the Magistrates Courts Act, Cap 11 R.E. 2019 to revise and vacate the proceedings and judgment of the district court. I io direct the case to start a fresh before another magistrate of competent jurisdiction who should record the evidence of the victim following the procedure contained in section 127 (1) of the Act as interpreted by the Court of Appeal and outlined above. It is ordered so. Court: Judgement delivered in chamber in the presence of both parties. Right of appeal explained. L.M. Mlacha JUDGE 3/11/2021 li