abrahamani ally mkuchi 2023 tzhc 20196 26 june 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) ATMTWARA CRIMINAL APPEAL NO. 99 OF 2022 (Originating from the:Resident Magistrates' Court of Mtwara, at Mtwara, in Criminal Case No. 112 of 2021) ABRAHAMANI ALLY MKUCHI...... .......... .............. APPELLANT VERSUS THE REPUBLIC ......... ...... ......................................................... RESPONDENT JUDGEMENT Date of last Order: 24.04.2023 Date of Judgment: 26.06.2023 Ebrahim, J. In the Resident Magistrates’ Court of Mtwara, at Mtwara the Appellant was charged and convicted of unnatural offence contrary to Section 154 (1) (a) and (2) of the Penal Code, Cap. 16 R.E 2019 [Now R.E 2022]. He was sentenced to life imprisonment and to be canned two strokes. He was aggrieved, hence this appeal. Page l of 9 it was alleged before the trial court, according that on 17.09.2019 at Navikole village within the District and Region of Mlwara the Appellant had carnal knowledge of one victim (named FAA), a boy of twelve (12) years old against the order of nature of one FAA against the order of nature. FAA is a branded name to conceal his identity and protect his dignity. The Appellant pleaded not guilty to the charge, hence a full trial. At the end of the day, the trial court found him guilty, convicted and sentenced him as aforesaid. Aggrieved by the impugned judgement, the Appellant preferred this appeal. He raised seven grounds of appeal which are condensed to two as follows: 1. That the prosecution side failed to: prove their case against the Appellant beyond reasonable doubt. 2. That the trial Magistrate erred in law and fact by convicting and sentencing the Appellant based on contradiction evidence of PWI, PW2, PW3, and PW5. At the hearing of the appeal, the Appellant appeared in person, whilst the Republic was represented by Mr. Mwapili, learned State Page 2 of 9 Attorney. For the reason to be apparent soon, I will argue the grounds of appeal generally. The main complaint on the grounds of appeal is on the there were contradictions in the evidence adduced by PWI, PW2, PW3 and PW5. Counsel for the parties did not address the ground in the way it was framed. They only argued it conjunctively with other grounds of appeal. Whether prosecution proved its case beyond all reasonable. This issue can be determined by considering the complaints fronted by the Appellant to support the contention that the prosecution case was not proved beyond reasonable doubt. It is trite law that first appeal is in the form of rehearing. In that regard, first appellate court is charged, with a duty of re-evdluating the entire evidence on record, subjecting it to a critical analysis and arriving at a decision which may confirm the trial court’s decision otherwise. I derive inspiration from the position of the Court of Appeal in the case of Napambano Michael ©Mayanga vs R, Criminal Appeal No. 268 of 2015 where it was underlined that: Page 3 of 9 "The duty of first appellate court is to subject the entire evidence on record to a fresh re- evaluation in order to arrive at decision which may coincide with the trial court's decision or may be different altogether." In the matter under consideration, the evidence on record adduced before the trial court can be recounted as follows: the victim who testified as PW1 said that, on 17.09.2019 while he was asleep at home was awaken by his grandmother and told that the Appellant is calling him. He woke up and went outside and found the Appellant with a panga. The appellant took him to his home, and after reaching there he sodomised him. The Chairman was called and went to the Appellant’s house and talked to the Appellant. It was when PW1 was released as he got a chance to run outside after untying his hands with his mouth. When he was cross-examined, he testified that there were people outside and they heard what the Appellant was doing to him. However hone among those people was called to testify. PW2, the grandmother of the victim, testified that on 17.09.2022 at 8:00 night hours the Appellant went to their home and asked for the victim. He Page 4 of 9 took the victim to his home. She followed the Appellant behind. The Appellant went inside his home and later they heard PWI crying loudly. She decided to run to the Chairman for help. Later on, they went together with: the Chairman to the Appellants’ home where they found other people and PWI was still crying. The Chairman called the Appellant and while talking with him, PW1 managed to run outside by using “paa la nyumba ya mshtakiwa”. She further testified that PWI 's father arrived on the next day and took PW1 to the police station and later to Mahurunga Health Center. Again, the father was not called to testify to prove such a scenario. PW3, who also was a grandmother of the victim, testified that on 17.09.2022 she heard the Appellant saying “leo naenda kukufira wewe ndio mke wangu”. She said they were shocked to hear that. She further testified that the Appellant started to sodomise PWI from 2000 hrs to 0000 hrs at night, PW3 told the court that the Chairman came later and many people who were there were women as men were watching video in a hut. Still, she was just outside listening for the cry out of PWI sodomised by the Appellant from 2000 hrs to 0000 hrs,!!! Page 5 of9 PW4, a doctor, testified that on 18.09.2019 at 05:00pm the victim of 12 years was taken to his hospital. He was with the police investigator and PF3. After the examination they found him to have bruises on his face and on his anus. The victim told him that he feels pain in his anus. He observed that the anus was open which was not normal. PW5, D/SGT, police officer, tendered the statement of Ally Salum Kolowa under Section 34B (1) and (2) (a) to fe) of the Evidence Act Cap 6 R.E 2019 which was admitted as exhibit PE2. According to the witness testament his wife and PW2 went to the house of the Appellant and found PW1 crying inside. Ally peeped via the window and saw the Appellant has caught the hand of PW1. He told the Appellant to open the door and he decided to run to the Chairman. He came back with the Chairman. The Chairman told the Appellant to open the door of which the Appellant did. Ally Salum took PW1 to his home. The witness told the mother of the victim to call his father and on the next day his father arrived and took his son to the hospital. The statement of Ally Salum did not tell as to whether the victims pants [shorts) had faeces or the exact conditions he was in. Nevertheless, the evidence on when and where the Appellant was Page 6 of 9 arrested was not stated. Yet the testimonies of all three witnesses i.e, PWI, PW2 and PW3 were very contradictory. The Appellant argued that the prosecution evidence was insufficient to support a conviction and that the prosecution case was not proved to the required standard. I find these two points related and also pertinent in the determination of this appeal. It is the position of the law that no particular number of witnesses is required to prove a fact. See, Section 143 of the Evidence Act, [Cap. 6 R.E 2022], Conversely, in this case the Chairman who also witnessed the incident at the Appellant's house as alleged by PWI, PW2 and PW3 was a material witness to prove a fact and yet he was not called to testify. Further, no explanation on his absence was issued. It is very clear that him being a person of authority and also present at the scene was a very crucial witness to confirm what was said by PWI , PW2 and PW3, It is the position of the law that failure to call a material witness without reasons for his/her none availability renders a court to draw an adverse inference. What seems to be evident is that the whole prosecution evidence Page 7 of 9 relied heavily on PWT, PW2 and PW3. As to the testimonies of PW1, PW2 and PW3, PW1 said for him to get out he untied his hands by using his mouth while the Appellant was talking and went out. However, PW2 said PW1 went out through “paa la nyumba” At the same time the statement of Ally Saium said on talking to the Appellant PW] went out. This shows that the coming out of PW1 through the roof top is not true. As such it raises doubt as what else are the witnesses lying about. Ally Saium said he saw the appellant holding a hand of PW1 and when the Chairman was talking to him, PW1 managed to escape and run out. PW1 said he untied his hands by using his mouth. Another question in considering the coherence of prosecution witness is did PW1 untie himself or the witness said the appellant was holding his hand?. The inconsistence is so obvious and creates a shadow of doubt which in law should benefit the accused. The inconsistence goes to the root of the case and questions the credibility of those witnesses as if was held it the case of Matera Simdngo @ Mdsand Vs. the Republic, Criminal Appeal No. 517 of 2019 CAT at Musoma (Unreported) where the court held that, Page 8 of 9 "In the final analysis, considering the variance between the allegation in the charge and be evidence; the material inconsistencies and contradictions in the prosecution evidence and the unreliability of the exhibits as we have alluded to above, it cannot be concluded that the case against the Appellant was proved beyond reasonable doubt as found by the trial court and confirmed by the first appellate court." Subscribing to the holding in the above case the inconsistence is resolved in favour of the Appellant. That being the case, I conclude that the offence was not proved in the required standard. I find merit in the 2nd grounds of appeal. This ground determines the whole appeal I therefore quash and set aside the judgment, conviction and sentence imposed against the Appellant by the trial court. The Appellant be released from prison forthwith unless lawful held for any other lawful cause. Ordered accordingly. R.A Ebrahim JUDGE 26.06.2023 Page 9 of 9