CRIMINAL APPEAL NO 410 OF 2022 ATHUMAN S O SEIF OMARY VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. J.A.. KENTE, 3.A. And MDEMU, J.A.^ CRIMINAL APPEAL NO. 410 OF 2022 ATHUMANI S/O SEIF O M AR Y...............................................................APPELLANT VERSUS THE REPUBLIC...................... .......... ............... -............................. RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Dar es Salaam) fKakolaki, J.^ Dated the 5th day of August, 2022 in Criminal Appeal No. 10 of 2022 JUDGMENT OF THE COURT 28th May, & 13th June, 2024 KENTE. J.A.: The appellant Athuman Seif Omary, was charged with and convicted of unnatural offence by the Bagamoyo District Court (the trial court) upon allegations that, on 10th September, 2020 at Kidongo Chekundu Nianjema Ward in Bagamoyo District, Coast Region, he had the carnal knowledge of a girl child who was then aged three years, against the order of nature. In this judgment, we shall alternatively refer to the said child as PW6, the victim or the minor girl. i Pursuant to section 154 (1) and (2) of the Penal Code, the appellant was sentenced to the mandatory sentence of life imprisonment. His appeal to the High Court of Tanzania, (sitting at Dar es Salaam) in which he was challenging both the conviction and sentence was unsuccessful, hence this appeal. Upon the memorandum in support of this appeal being stripped of all technicalities, the appellant contends, substantially, that his conviction by the trial court which was subsequently sustained by the first appellate court, was against the weight of the evidence. In particular, the appellant complains that, the two lower courts relied on the evidence of the victim whose testimonial evidence was not only received and admitted in total violation of the applicable law but also she was not a credible and truthful witness. Furthermore, it is contended that, the appellant's conviction was partly based on the evidence of a medical examiner one Ally Shaban Ponza (PW4) whose oral testimony was at variance with the material contents of what he had posted on the medical examination report (Exhibit PI). To that end, the appellant contended that, his conviction was erroneous, regard being had to all the attendant facts and circumstances as can be gleaned from the evidence on the record. The circumstantial evidence by the prosecution witnesses on which the lower courts relied, shows that, prior to the occurrence of the alleged incident, the appellant was living with the victim's parents namely Adam Said (PW2) and Zainabu Haruna (PW1) at Kidongo Chekundu Area in Bagamoyo District. He was employed by PW2 as a herdsman. On 10th September 2020, the victim who was then home with her mother was lured by the appellant into the cowshed where he allegedly went on molesting her. It is worthwhile to state at this juncture that, the fact that the victim was molested is not in dispute. A medical examination of the victim revealed bruises on the anal area and, upon further examination, she was found to have blood stains on her underpants. In these circumstances, it is obvious that, as it was before the lower courts, the question we are enjoined to determine in the present appeal is whether or not the appellant is the one who molested the minor girl on the fateful day. The critical witness for the prosecution was PW1, the victim's mother. According to her, she was first alerted by her daughter's noise who was calling her immediately after the appellant had taken her into the cowshed. PW l recounted that, when she went to check on her daughter, she found her with the appellant who seemed to have just recoiled from the victim's 3 touch immediately before and he was then busy zipping up his trousers. According to PW1, her daughter was complaining that she had been hurt and when PW1 checked on her, she found bruises and semen stains around her anal area. This was confirmed by the Medical Examiner whose findings as stated before, established stains of blood and fluid in the victim's underwear together with visible bruising around the anus. Deeply annoyed, PW1 then asked the appellant why had he done such an utterly odious thing to her daughter. This was followed by the appellant's apology and request asking PW1 not to disclose to her husband (whom the appellant used to call his brother) what he had done as he was afraid that, the shrewd man would take a hardheaded stance and send him to jail. Not long thereafter, PW1 called her co-wife one Machiwa Juma (PW3) who, upon examining her step-child, confirmed what she had been told by PW1. Asked by PW3 what had he done to the child, the appellant is said to have at first denied any wrongdoing saying that the child had just stumbled over uneven ground and fallen down but on being pressed, he changed the version, beat his breast, apparently in full contrition, and pleaded to have consumed some compulsive sexual triggers as an excuse. 4 Just as he did to PW1, the appellant allegedly pleaded to PW3 for forgiveness and urged her not to tell her husband what he had done. However, on realising that in total defiance of his plea, the two co-wives who had so far not assured him that they would not tell their husband the ordeal their young daughter had undergone were in the process of tracing him (their husband), the appellant intuitively opted to escape. Even though, according to PW3, the appellant was arrested without much struggle after a relatively short chase. From there, he was whisked to the Bagamoyo Police Station where he was temporarily held in custody awaiting the outcome of the victim's medical examination. Upon the above evidence, the appellant was taken to the trial court where he was indicted on one count of unnatural offence. In his defence, the appellant denied ever having anal intercourse with the minor girl. He stated that, prior to the occurrence of the alleged offence, he was employed by PW2 as a herdsman and that, PW2 owed him TZS 220,000.00 in the form of salary arrears. He further recounted that, as a result of PW2's indebtedness to him, the misunderstanding between them had escalated into a lengthy argument at the end of which, PW2 resolutely vowed to teach him a lesson. He therefore attributed the charges levelled against him with the dispute with his employer. He insisted that, he was framed with the offence of unnatural offence because of the bonafide claim for his unpaid wages. With regard to what transpired on the material day, the appellant testified that he was together with one of PW2's wives cleaning the cowshed. That in the course, two motorcycles arrived and one of the motorcyclists told him that he was needed at the police station. Further, that, when he asked the said persons to introduce themselves as he did not know them, they refused and insisted that they were just required to take him to the police station. Knowing that he had done nothing wrong, he obeyed and went to the police station where for the first time, he was accused of having anal intercourse with the victim. He was subsequently convicted by the Bagamoyo District Court, a conviction which upon appeal, was confirmed by the High Court. As we said earlier, dissatisfied with the High Court decision, the appellant has yet again appealed to this Court against both the conviction and sentence proffering the following grounds of appeal: 6 1. That, the first appellate court erred in law and in fact to sustain the appellant's conviction and sentence basing on invalid evidence of a, child of tender age who was incompetent to testify either on oath or after promising to tell the truth and not to tell any lies. 2. That, the first appellate court erred in law and in fact to sustain the appellant's conviction and sentence relying on the evidence of a child of tender age who was neither a credible nor truthful witness. 3. That, the first appellate court erred in law and in fact to sustain the appellant's conviction and sentence basing on the evidence of a medical examination report without regard to the discrepancies between the oral testimony of the medical examiner and the contents of the medical examination report; and 4. That, the first appellate court erred in law to hold that the prosecution case was proved beyond reasonable doubt to warrant the appellant's conviction and sentence while the prosecution evidence was lacking and valueless. During the hearing of the appeal, the appellant who appeared in person without legal representation, had nothing meaningful to say in elaboration of the grounds of appeal. He only invited us to look into the said grounds which he believed were plausible and finally implored us to allow the appeal and set aside the custodial sentence meted out on him. Ms. Sofa Bimbiga, learned State Attorney appeared along with her fellow, State Attorneys namely Ms. Laura Kimaro and Asifiwe Mnzava for the respondent/Republic. Regarding the evidence of the victim (PW6) about which the appellant expressed grave misgivings, Ms. Bimbiga took the view that indeed there was a little bit of substance in the appellant's complaint but only to the extent that, section 127 (2) of the Evidence Act was not complied with. Elaborating, the learned State Attorney submitted that the child witness had not promised to tell the truth and not to tell lies before she went on testifying. However, relying on our earlier decision in the case of Wambura Kiginga v. Republic, Criminal Appeal No. 301 of 2018 (unreported), the learned State Attorney submitted that, she could not see anything wrong with such evidence. She based her stance on the fact that the first appellate court had found PW6 to be a reliable and credible witness. She therefore implored us to follow suit and dismiss the first ground of appeal. 8 Curiously, at the hearing of the appeal, we brought it to the attention of Ms. Bimbiga that, apart from the complaint raised by the appellant in the first ground of appeal, the victim who, as earlier indicated, testified as PW6, could not answer or otherwise respond to the questions put to her by the appellant during cross-examination. When we invited Ms. Bimbiga to address us on the evidential value of PW6's testimony in view of the above- mentioned procedural oddity, the learned State Attorney seemed to have trouble getting her thoughts together, apparently having been taken by surprise. She finally lost heart and left the matter in our discretion to decide. As it will be noted at once, the record of the appeal shows that on 26th July, 2021 PW6 appeared before the trial court to testify, and, after giving her evidence in-chief an exercise which had not been without difficulties, the appellant was given the opportunity to cross-examine her. The record is loud and clear that, upon cross-examination: "The child could not talk/respond" To rub salt into a wound, the trial magistrate could not find any need to put on the record all the questions put by the appellant to PW6 by way of cross-examination. There is no gainsaying that, such questions, though not 9 responded to, would have shed light on an even bigger question as to whether or not it is the appellant who molested PW6 on the fateful day. Faced with a similar situation in the case of Ex-D 8656 CPL Senga Idd Nyembo and Seven Others v. Republic, Criminal Appeal No. 16 of 2018, we held that, unless a party to a judicial proceeding has waived his right to cross - examine a witness, the evidence of such a witness cannot be taken as legal unless it is subjected to cross-examination. (See also Pentaleo Teresphory v. Republic, Criminal Appeal No. 515 of 2019). Viewed from the above perspective, we hold that, for non-attainment of the required threshold, the evidence of PW6 should not have formed the basis of the concurrent decisions of the lower courts regarding the appellant's guilt. We accordingly discard that evidence. In the circumstances and to the above extent, we go along with the appellant and subsequently allow the first and second grounds of appeal. With regard to the remining evidence, it may not be correct as one might be tempted to say that, since the evidence of the victim is gone, the appellant is now off the hook. While, we are mindful to the well-known principle that, the best evidence of a sexual offence must come from the 10 victim, we are equally alive to some of our earlier decisions in which we have made a point that, there are instances where charges may be proved without victims of crimes testifying in court. (See Haji Omary v. Republic, Criminal Appeal No. 307 of 2009). Coming to the appeal now under review, as it will be noted at once, apart from the evidence of the victim which we have just discarded, there was more evidence connecting the appellant to the offence. In this regard, we have in mind the circumstantial evidence of PW1 who rushed to where the noise made by the victim was coming from and there, she found the appellant and the victim together in the circumstances suggesting that the duo had immediately before been engaged in a sexual encounter. This was in broad daylight around four o'clock in the after noon as to enable PW1 to see not only the appellant and the victim but also to see what the appellant was doing. According to PW1, the appellant was then zipping up his trousers while the victim was crying that she had been hurt. Asked what he had done, the appellant admitted to have sexually abused the victim and pleaded with PW1 urging her not to tell her husband the ordeal which the victim had gone through. On the facts, the evidence and the law, it appears to us that it was established to the required standard that the appellant had anal intercourse with the victim on the material day. The belated contention by the appellant that he was framed in these charges by PW2 because of his genuine claim for his unpaid wages, cannot be sustained. The appellant had certainly ravished the victim immediately before PW l went to her rescue. Put in other words, that was directly what PW l had found and that fitted well with other evidence such as what the medical examiner whose evidence we have no reason to discredit, subsequently established. As it can be seen from the record of appeal, the evidence of PWl pointed to the only conclusion that the victim was in the appellant's custody until the time of her molestation. In the circumstances, the inference that the victim met her fate when she was still a captive of the appellant, is inevitable. The two courts below had carefully looked at the evidence and, we for our part, do not find anything remiss with their evaluation of the said evidence and the conclusions they reached. The only inference that can be drawn from the evidence of PWl is that, it is the appellant who sexually abused the victim on the material day. That said, we find no merit in the third and fourth grounds of appeal which we hereby dismiss. 12 In the result, the entire appeal is found to have no merit and, it is accordingly dismissed. DATED at DAR ES SALAAM this 13th day of June, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 13th day of June, 2024 in the presence of the Appellant in person, and Ms. Ms. Laura Kimario, learned State Attorney for the Respondent both via video conference, is hereby certified as a true copy of the original. 3^ - D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 13