ally athuman mengi vs the reupublic 2023 tzhc 18073 14 june 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MOROGORO DISTRICT REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 18 OF 2023 (Originating from Criminai Case No. 26 of2019 in the District Court ofMvomero) ALLY ATHUMAN @MENG1 APPELLANT VERSUS THE REPUBUC RESPONDENT JUDGEMENT Hearing date on: 09/06/2023 Judgement date on: 14/06/2023 NGWEMBE,J. This is an appeai preferred by the appellant Ally Athuman Mengi against conviction and sentence entered by the District Court of Mvomero, for the offence of grave sexual abuse contrary to sections 138C (1)(a) and (2)(b) of the Penal Code, Cap 16 RE of 2002(now R.E. 2022). Allegedly, committed such offence against a girl child of 4 years old. The particulars of the charge sheet disclosed that, on IQ"' March 2019 in Mvomero ward and district of Mvomero, the appellant for sexual gratification did insert his fingers into the private parts (vagina) of the victim aged 4 years old. The girl's name will, throughout of this judgement remain hidden in order to preserve her dignity as the law requires. Section 76 of the Law of the Child Act read together with the Chief Justice's Circular No. 2 of 2018 directs all courts to preserve names of minor children involved in sexual related offences. In Page 1 of 18 •compliance to such law and directives, this court will address her as the victim. Upon being duly arraigned in court, the appellant pleaded not guilty to the offence. In turn, the prosecution marshalled up four (4) witnesses with no exhibit. Those witnesses included the victim, the victim's mother, a neighbour and a police officer who happened to handle the complaint. On the defence side, the appellant voted to testify on affirmation, with no exhibit as well. After full trial, the court convicted the appellant for the offence charged, in his absence. Then in what I perceive to be extraordinary, the sentencing process kept being adjourned. Eventually on 13/02/2020 which is almost three months from the date of conviction, the appellant was sentenced to statutory sentence of 20 years imprisonment. Just the next morning, that is on 14/02/2020, the appellant presented his notice of appeal. Following shifting of the prisoners, he did not manage to institute his appeal timeously. In year 2022, he filed to this court Miscellaneous Criminal Application No. 28 of 2022 seeking for extension of time to refile notice of Appeal and Appeal out of Time. On 17/3/2023 his prayer was granted with an order that; he should file his notice of appeal within ten (10) days and the intended appeal within twenty (20) days from the date of notice. Consequently, on 23'" March, 2023 he filed his notice and the appeal on 6'^ April, 2023, thus complied with this court's order. The petition of appeal had six grounds paraphrased into five points as hereunder: - 1) That section 127 (2) of the Evidence Act, Cap 6 R.E 2019 was not complied with when receiving the evidence of the victim, a child of 4 years old. Page 2 of 18 2) The evidence of a medical doctor who examined the victim was not tendered in court; 3) That a PF3 was not tendered in court, but some other PF3 not connected to the appellant's case was read in court; 4) The trial court did not consider defence evidence; and 5) The prosecution case was not proved beyond reasonable doubt. To the hearing date of this appeal, the appellant was unrepresented, while the Republic was represented by Mr. Josbert Kitale. The appellant in addressing those grounds of appeal preferred to submit in whole. Stated that, the victim's mother is his sister-in-law, as she is married to his brother. Went further to state that, prior to being arrested, they had conflict with the victim's mother. Strongly argued that the case against him was vexatious. Pointing out the nature of the cases levelled against him, he observed that, the offence was alleged to have been committed on the same date and time of 1:00 PM, the time which he was at his paddy field. It is claimed by the complainant that, he committed the offences on two children. He revealed further that, there was another case of similar nature committed on the same date and time, which case was before Hon. Barabara who acquitted him. He questioned if he would be able to commit such offences to those children at the same time, while again at that time he was at his paddy field. Rested by submitting that he never committed the alleged offences, hence he prayed his appeal be allowed. ITie learned State Attorney exhibited his resistance against the appeal. Admitted that PW3 the victim of 4 years testimony was taken without being asked the relevant questions, but she promised to tell the truth. Relying on the cases of Deo John Vs. R, Criminal Appeal No. Page 3 of 18 '361 of 2020 at page 8, argued that, promise to tell the truth means also a promise not to tell lies. Then at page 16 of the cited judgment he submitted that, any minor mistake in respect of section 127 of The Evidence Act is curable under subsection 6 of the same section. Above all, the appellant did not ask questions to contradict the victim's evidence. Arguing on grounds 2 and 3 jointly, on failure to call the medical doctor who filled PF3, Mr. Kitale submitted that, it was not necessary under the circumstance. The doctor's testimony was not necessary for the true and reliable testimony was adduced by victim. To bolster his position, he brought to this court the decision of the Court of Appeal in Marwa Mturu Vs. R, Criminal Appeal No. 561 of 2019 at page 11. On the other hand, he conceded that admission of PF3 was unprocedural, same be expunged. Arguing on ground four, the learned State Attorney stated that, the trial court evaluated the evidence properly. Alternatively, If the trial court failed to evaluate the defence case, then this court being the first appellate court, can re-evaluate all evidences as required by law. Treating ground 5 and 6 together, he briefly submitted that the respondent proved its case beyond reasonable doubt. Referred this court to the evidences of PWl and PW3 the victim who was the key witness as reliable and satisfactory to prove the offence charged for. Finally, he rested his case by a prayer that this court may wish to dismiss this appeal forthwith. When the appellant was invited for a rejoinder, he submitted that, many people are living within the compound where the offence was alleged to occur, but never heard anything or cry or any sound as alleged by the prosecution witnesses. Flaving so summarised the Page 4 of 18 arguments of both parties, I find compeiied to consider aii grounds comprehensively and determine the appeal whoiisticaily. To the best decisive issue in this appeal is whether the appeai bears any merit at all. In dealing with this issue, iet me answer the issue of whether section 127(2) of The Evidence Act was adhered to by the thai court. Second, whether the offence was established and proved beyond reasonabie doubt. Starting with the first question in respect of recording of the victim (PW3) who is a chiid of tender age, I have perused the whole proceedings and gathered that, the victim just promised to tell the truth, but did not promise not to tell lies. Then proceeded to testify the facts of the case. It is unknown how did the trial court accept the witness only to promise instead of swearing. No prior questions were asked to test the understanding of that child witness of 4 years only. The appellant laments that such procedure flouted section 127 (2) of The Evidence Act. However, the iearned State Attorney maintained that such errors were minor, curabie and did not prejudice the appeiiant. Understandabiy, the requirement of section 127 (2) of the Act is part of criminal trial in our jurisdiction, which must be adhered to, see the cases of Issa Salum Nambaluka Vs. R, [2020] 1 T.L.R. 379 [CA]. The case cited by Mr. Kitaie, including the case of Deo John Vs. R,(Supra) the Court of Appeai ignored the omission of the tender age witness to promise not to tell lies, when she had promised to teil the truth. In its reasoning, the Court observed that, promise not to teil lies is inherent In promise to tell the truth. Also, the same reasoning was repeated in the case of Mathayo Laurance William Mollei Vs. R, (Criminal Appeal No.53 of 2020)[2023] TZCA 52. Page 5 of 18 However, there is yet another aspect in this case, which did not feature in the cases cited by the learned State Attorney. To drive this properly, I refer to the Court of Appeal decision in Godfrey Wilson Vs. R,(Criminal Appeal No. 168 of 2018)[2019] TZCA 109 and John Mkorongo James Vs R, (Criminal Appeal No. 498 of 2020) [2022] TZCA 111. A procedure to follow before requiring the witness to promise to tell the truth was devised. It was held: - 'The question, however, would be on how to reach at that stage. We think, the trial magistrate or judge can ask the witness of a tender age such simplified questions, which may not be exhaustive depending on the circumstances ofthe case, as follows: 1. The age of the child. 2. The religion which the child professes and whether he/she understands the nature of oath. 3. Whether or not the child promises to teii the truth and not teii lies. Thereafter, upon making the promise, such promises must be recorded before the evidence is taken". This illustrative procedure was not followed by the trial court, that is why, I pointed earlier that, this case is different from that of Deo John Vs. R. The appellant is correct to state that the evidence of PW3 was taken in contravention of the law. The omission to follow section 127(2) of the Act, would make the evidence of PW3 invalid. In Bashiru Salum Sudi Vs. R, Criminal Appeal No. 379 of 2018, CAT at Mtwara, it was held: - 'The Court has already pronounced itself that the evidence ofa tender age witness received not on oath or affirmation without such witness making a promise to teii the truth and not lies to be without evidential value. Such evidence is as good as no evidence had been taken'' Page 6 of 18 However, the Court of Appeal has changed the legal position, the new position is that the court will consider the said evidence as if it was given without oath and test its evidential value. This position was considered in the case of Wambura Kiginga Vs. R,(Criminal Appeal No. 301 of 2018)[2022]TZCA 283, among others. As such the court will not expunge the evidence of PW3, but subject it into scrutiny taking into account that, this court exercises its jurisdiction as the first appellate court. Although in real revelation section 127 (2) was not adhered as required, however the evidence of PW3 will be spared and face proper analysis. Turning to the second question of whether the offence was proved beyond reasonable doubt, this court will first address the basic principles on proof of cases In criminal trial for its proper guidance. The law is intact that evidentiai burden of proof is on the prosecutor to establish guilt of the accused beyond reasonable doubt. The position, though not universal, applies in most of jurisdictions in the world. Here at home, section 3 (2)(a) of The Evidence Act provides that proof in criminal case must be beyond reasonable doubt. In the case of D.P.P. Vs. Ngusa Keleja @ Mtangi & Another [2020] 2 T.L.R. 204 [CA] it was inter alia re\X.erdXB6 as follows: - 'We now pose to restate the basic principle of iaw that the burden of proof in criminal cases lies squarely on the prosecution shoulders, the standard of which is beyond reasonable doubt - See Woolmington DPP (1935) AC 462 and Mohamed Said Matuia v. Republic [1995] T.LR. 3. An accused has no duty ofproving his innocence, and in making a defence, an accused is merely required to raise a reasonable doubt We must add here that even, the accused person can Page 7 of 18 only be convicted on the strength of the prosecution case and not on the basis of weakness ofhis defence'' In countless cases, this court has restated the burden and standard of proof to the criminal offences, while insisting on the need to assure that no conviction and sentence Is passed erroneously for failure of the court to apply the set standards. Herein, I point out that, sexual offences In our jurisdiction are serious ones, majority of which attracts long sentence imprisonment. It is known, punishment for rape cases if proved runs from thirty (30) years up to life imprisonment. The minimum punishment for grave sexual abuse Is 18 years for adult victims and 20 years for a child under 18 years. This bring an alert that, prosecution must be serious, choose to prosecute only genuine cases. Also, the court need to be awake in trials of this nature in order to make sure that, they convict only true offenders. Usually, the more serious the offence is, attract more caution to the court to analyse each and every piece of valuable evidence. Prof. Garoupa, an American jurist in his article Explaining the Standard of Proofin Criminal Law:A New Insight(2018),states that: - '7/7 particular, it is frequentiy assumed that false positives are more sociaiiy costly than false negatives. This conventional wisdom is derived from Biackstonian reasoning by which one wrongfui conviction is worse than 10 wrongfui acquittals" In our case, as seen in the respective submissions, the appellant believes that, the case against him was vexatiously devised with sole purpose of fixing him on some previous conflicts with the victim's parent who are as well his relative. The learned State Attorney was firm to the position that, the offence was sufficiently proved. The inclusive question is therefore whether the offence against the appellant was proved Page 8 of 18 beyond reasonable doubt. To resolve this question, undoubtedly, I have to visit the law and facts established in the evidence before the trial court. In order to properly perform that duty re-evaluation of the adduced evidence in inevitable. Notably, the appellant was charged for the offence of grave sexual abuse contrary to section 138C (l)(a) and (2)(b) of The Penal Code Cap 16, R.E 2002. It is understood that section 138C (l)(a) creates the offence and subsection 2(b) provides for punishment on the abuse committed to girls under the age of 15 years old. Now because there are several significant amendments legislated on the section, it fits a brief history to be offered herein for a better setup of the judgment. At the time when the appellant was charged, section 138C was under the Revised Edition 2002 of The Penal Code Cap 16. The provision to take as a whole was as hereunder: - Section 138C "f1) Any person who, for sexual gratification, does any act, by the use of his genitai or any other part of the human body or any instrument or any orifice or part of the body of another person, being an act, which does not amount to rape under section 130, commits the offence ofgrave sexuai abuse if he does so in circumstances failing under any of the foiiowing descriptions, that is to say- (a) without the consent ofthe other person; (b) with the consent ofthe other person where the consent has been obtained by the use of force, threat, or intimidation or putting that other person in fear ofdeath or of hurt or whiie that other person was in uniawfui detention; j (c) with the consent of the other person where such consent has been obtained at a time the other person was of J Page 9 of 18 unsound mind or was in a state of intoxication induced by aicohoi or any drugs, matter or thing." From the wording of the provision above, grave sexual abuse contrary to section 138C (1) (a) and (2)(b) of the Act would be established if the prosecution proved: - a) An act of using genital or any other part of the human body or instrument or orifice or another person's body part to another person. b) Sexual gratification c) Lack of consent. d) Age of the victim to be 15 years old (for the purpose of punishment). However, I have considered that in this case, the victim is a girlchild of the age of 4V2 years. Knowing that the provision required also proof of lack of consent without considering that the victim of minority age in law would be incapable of giving consent to any act related to sexual activity. Such a shortfall was spotted by the Court of Appeal in the case of Andrew Lonjile Vs. R, Criminal Appeal No. 50 of 2019 where the court observed the wording of the provision and held: - "At this juncture whiie iooking at the ingredient of lack of consent," we could not help but wonder aloud if, for purposes of argument, whether the five-year old girl in this appeal, had consented to the act of the appellant to insert his fingers into her private parts to gratify himself; the appellant would have a defence against the offence of grave sexual abuse. This is a possible absurdity out of interpretation of section 138C (l)(a)(b)(c) and (2) of the Penal Code as it now stands. We Page 10 of 18 think, this provision shouid be amended at very ieast to protect chiidren under the age of 18 who in iaw, cannot give consent to either grave sexuai abuse or any other sexuai offence'' The amendment was made through section 42 of The Written Laws (Miscellaneous Amendments) Act No. 01 of 2020 by adding paragraph (d) to cover the victims under 18 years thus: - "(d) with or without the consent ofa person who is under the age ofeighteen years." Subsequently the age under subsection 2(b) was varied from below 15 years to below 18 years of age. Given the above history, it follows therefore that, even before the amendment, lack of consent was not to be established by the prosecution in case of a minor victim, but only the age of the victim to be below 18 years old. The prosecution evidence before the trial court was to the effect that the victim (PW3) who testified to know well the appellant, was called by the appellant and she went along to the appellant's home which is just nearby. Reaching there he asked the victim to sit on a log (used for chair). Asked her to undress her skirt and underpants requesting her to spread her legs apart. Then he inserted his fingers into the victim's private parts (probably interior of her vagina). The victim testifies that she felt pain, but did not cry or raise any alarm because the appellant promised her fried egg. It seems after accomplishment of the offence, the appellant peacefully released the victim to go home. At home she found her mother and relatives outside. She narrated the story to them. This is much similar to PW2 and PW4. Page 11 of 18 Her mother (PW2) reported the matter to Mvomero Police Station on the next day of 20^^ March 2019 where D/Cpl Fredy (PWl) attended them and gave out PF3. PW2 and PW3 said to have gone to a nearby hospital at Bwagala for medical examination of the victim. According to PW4 they left that hospital having seen a queue of patients and went to ChazI hospital where the victim was eventually examined and PF3 was duly filled. Later the appellant was arrested and brought to police. PWl Interrogated him, the appellant denied the offence. PWl went to the appellant's home and verified that the environment described by the victim were correct, especially that there was a piece of log used for a chair. The appellant In his defence lamented that the case against him was vexatlously devised up. He did not commit the offence, but the victim's parents wanted to Injure him In retaliation. He admitted to be known to the victim and her mother, but claimed to have no good relationship. His story was that on 19/03/2019 he went to his farm around 05:00 hrs and worked till 18:00 hours when he returned home. Approaching to his home, he was asked about the offence and was told to report to police post. He went to the police, but the police officers let him return home as the complainant was not around. When returned home, he was arrested in night hours. He stated that, when In custody at the police, he heard the victim's parent (PW2) telling the police that PF3 was rejected at Bwagala hospital, then the police asked them to go to ChazI hospital where PW2's relative works. Having visited the whole evidence, I have observed serious doubts on the prosecution's evidence, which was glaring enough for a trial magistrate to take note. According to the prosecution, the victim Is a girl Page 12 of 18 child of 4V2 years, she testified that, when the appellant Inserted his fingers in her private parts, she was feeling pain, but she did not cry because the appellant promised to give her fried egg. PW2 stated that she was sitting outside with her young sister Eva Thobia, when her daughter (the victim) came running and narrated before them same story. Nowhere in the testimonies of the prosecution suggests that the victim cried or raised any alarm. The mind of this court is seriously disturbed with unanswered questions including whether a girlchild of 4 years of age would endure the vaginal pain of a man inserting his fingers and manage not to cry only because she was promised some fried egg. The number of fingers is not mentioned, assuming two fingers, the minimum or plus, it is hard to imagine the victim could hold her breath and resist pain, of course presuming the victim was yet incapable of any sexual activity. Again, from the victim's testimonies that, the appellant blinked an eye as a signal to call her. There is an unanswered question of whether the girl child of four years of age would understand such a signal and respond accordingly as she did? Apart from that, while the original record (the hand written version of the proceeding) shows that, the victim did not cry or raise any alarm in the commission of the offence, as I have observed above, the trial magistrate when referring to the evidence of PW3 (the victim) states that the victim cried, but the appellant stopped her from crying. This is as per page 2- 3 of the trial court's judgment as I quote hereunder: - "PIVJ told the court that while In the accused asked her to sat on that piece of log. The accused was then undress her skirt and Insert his fingers onto her private parts. PW3 cried but the accused stopped her from crying and telling anybody as he told Page 13 of 18 I rfilii her that he will give her the frying eggs, upon finished his evil acts the accused allowed PW3 to leave" This court treats the above to be another serious ailment in the trial court's judgment. Not only that there w/ere variations between the handwritten proceedings from the typed one, but also there was variation of facts between the judgment and its proceedings. The houses of PW2, PW4 and the appellant, according to the testimonies of both parties, are nearby to each other. From their testimonies, PW2, PW4 and other residents were around their houses when the offence was being committed against the victim, but is not stated where the victim was when the appeliant signalled to her to follow him, at least one person would have noticed the undertaking. If the said act of grave sexual abuse was committed in the victim's version, she would not have managed not to cry. Even if the thai magistrate's version was true that, the victim cried, owing to the facts that there is no distance between the houses, the cry wouid be heard by neighbours. The appellant's complaint in this line attract attention of this court. When PW2 was testifying, she stated that she deait with the PF3 of the victim in this case and then of the other victim who was said to be abused by the same appellant. The appellant in his submission pointed out that, he was charged in another case for committing the same offence, on the same day, the same time and same piace against another child whose name is also withheld. This court took cognizance of that fact of existence of that another case, which is Criminai Case No. 54 of 2019. In that case also was equally alleged the appellant to have committed grave sexual abuse to that other girlchild around 13:00 hours, the time which also the victim was said to be abused on the same Page 14 of 18 place and date. Not only that, I condemn as to why he was not charged in the same case, If the offences were on the same transaction. Also, I wonder how would these two victims be abused at the same time, same place and same style by the same culprit? Even the victim of this case did not corroborate at all the fact on that other victim. While PWl, PW2 and PW4 talk of PF3, same was not tendered in court. The typed proceedings at page 9, a witness is purportedly recorded to read PF3 before the court, but never prayed to tender it in court. Equally, no order as to its admissibility was issued. Yet resorting to the handwritten proceedings, I learned that actually the paragraph which showed that PF3 was read and explained to the accused never existed in the original record. TTie said PF3 was not tendered at all. I am well aware on the doctrine of sanctity of court proceedings as decided in the cases of Paul Dioniz Vs. R,(Criminal Appeal No. 171 of 2018) [2020] T2CA 1840, Halfani Sudi Vs. Abieza Chichili [1998] T.L.R 527 and Flano Alfonce Masalu @ Singu Vs. R, Criminal Appeal No. 366 of 2018. However, in this appeal, a valid question is whether the proceedings were properly taken and whether the magistrate perceived the testimonies of witnesses properly. The medical doctor who purportedly examined the victim did not appear to testify on his examination and his findings. I am unable to accept Mr. Kitale's submission that, the medical doctor was not important. Under the circumstance of this case, the court is of the firm view that, the medical doctor was a material witness. I also point out that PF3 which was not admitted could not be expunged as argued by the learned State Attorney. In total of the evaluation herein, I take cognizance that children are being abused and exploited now and then. However, in this case two Page 15 of 18 important facts were not established; one - whether the victim was sexually abused as what the charge bore grave sexual abuse. Two whether the person who gravely abused the victim sexually was the appellant. Given the serious doubts, what the appellant raised in his defence earn points that, he was innocent, but the prosecution was instigated on bad relationship with the victim's parents. Also, the fact as to why PW2 left the first hospital and went to another hospital was not well explained by the prosecution witnesses, same attract benefits to the appellant. PWl testified that he visited the appellant's home and found the fact of there being a log used as a chair to be true. This fact seems to have influenced the trial court. It derived the facts in a way that if the victim was able to describe the environment in the appellant's room, then it confirms that the appellant in reality took the victim in his room for the purpose of abusing her. I accept the syllogism that if the victim knew the interior environment of the appellant's house, the victim may have once entered in the appellant's room. However, I do not admit to the conclusion that, if the victim once entered to the appellant's room, then the latter must have abused the victim. I am mindful of the rule we have in place that best evidence in sexual offences comes from the victim as established in the famous case of Selemani Makumba Vs. R,[2006] T.L.R. 379. But in this case there were serious doubts, which in law were required to be decided in favour of the appellant. I am persuaded by the Indian Supreme Court in the case of Vijayee Singh and Ors Vs. State of Uttar Pradesh (1990) AIR 1459 where it was observed that: - Page 16 of 18 "But the genera! principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused Is entitled to the benefit of a reasonable doubt, are to be borne in mind. The 'reasonable doubtis one which occurs to a prudent and reasonable man. With the above serious doubts and misapprehension of evidence, I am satisfied that the offence against the appellant was not proved beyond reasonable doubt. Proof beyond reasonable doubt has been repeatedly explained by this court and the Court of Appeal that, it is when the evidence irresistibly points to the accused person and not any other as the one who committed the offence. Such standard was not attained in this case before the trial court; hence conviction and sentence of the accused was not justified in law. Another anomaly observed herein is related to the judgment itself. The appellant was convicted on 28/11/2019 in absentia, nothing is stated why that happened. The trial magistrate kept adjourning the sentence on the reason that the prosecution was having a transport problem. The record shows that, the appellant was sentenced on 13/02/2020, this is almost three months from the date of his conviction. Although adjournment of sentence is permissible in law, I think such a long period of time prejudiced the appellant. Having reasoned as above, this court finds merits in this appeal. I proceed to allow the appeal. Quash the conviction and set aside the sentence of 20 years inflicted against the appellant. Consequently, the appellant should be released from prison forthwith, unless held therein .if' for any other lawful cause. Order accordingly. Page 17 of 18 Dated at Morogoro in chambers this 14^ June, 2023. OP M>V P. J. NGWEMBE JUDGE 14/06/2023 Court: Judgement delivered at Morogoro in chambers on this 14^ day of June, 2023 in the presence of the appellant and Mr. Kitale, Learned State Attorney for the Republic. OP Sgd: A.WyMmbando srA 14/06/2023 ppeal to the court of Appeal explained. Sgd: A. 14/06/2023 moro« Page 18 of 18