juma iddi milanzi vs the republic 2023 tzhc 23547 23 november 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA CRIMINAL APPEAL NO. 49 OF 2023 JUMA IDDI ©MILLANZI............................................................. APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT JUDGMENT 2nd to 23d November, 2023 E. B. LUVANDA, J. Juma Iddi @ Milanzi, the Appellant herein, being aggrieved by both the conviction and sentence of thirty years imprisonment, appealed to this Court on five grounds of appeal. At the trial court, the appellant was tried for unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap 16 R.E.2022. It is in record of the trial court proceedings that, PW1 (the victim) explained that on the fateful date, one Mustafa slept on top of her chest, meanwhile the appellant took his penis and inserted into her anus. According to PW1 she reported the incident to her boss one Kibunge who handed the Appellant and send him to oolice. PW1 alleged to have been i medically examined at the hospital on the same date and was found with fungus and bruises inside her anus. According to PW1 Omary and Haji, were eye witness to the ordeal. However, PW1 asserted the duo were too young, could not assist or rescue her from the movie. Haji Mijae Ngonyani and Omary Musa Luambano appeared before the trial court and testified as PW2 and PW3, respectively. PW3 is aged 23 anos and PW2 was recorder to be an adult, meaning was of age of majority, or vicenarian. PW2 explained under oath that PW1 touched private parts of the Appellant including Mustapha, on explanation that the duo can't rape her, then Mustapha stepped over PW1, where the Appellant undressed that girl trouser and underwear. Likewise, PW3 stated that PW1 was touching private parts of the Appellant alongside Juma and they were playing, where PW1 told the Appellant and Mustapha that they can't rape her, it is when Mustapha slept over PW1, where the Appellant undressed PW1. It is to be noted at the scene of crime PW1 was the only lady remained behind after her two sisters namely Jasmin and Rose and brothers, finished their job or assignment or task and proceeded to their respective home. On ground number one and two, the Appellant complained that he was convicted without determination of the age of the victim. The appellant submitted that at the trial court the age of the victim was not clearly determined. He submitted that there was no sufficient evidence which established the exact age of the victim. He submitted that, PW1 said her age was fourteen years old but she was born on 12/02/2017, argued mathematically do not reflect the age of the victims which per the said birth date the victim is aged six years old. He submitted that no birth certificate was tendered, no any adult person was procured to prove the age of PW1. He submitted that failure to prove the age of the victim in statutory offences is the omission renders the conviction illegal. He cited the case of Isaya Renatus vs Republic, Criminal Appeal No.542/2015 CAT, George Claud Kasanda vs DPP Criminal Appeal 376/2017 CAT at Mbeya. In reply, the learned State Attorney submitted that the victim testified categorically to be fourteen years of age and she further said she was born on 12/02/2017. He submitted that the victim mistaken her birthdate is something common expected to be done by any child or person who is not used to celebrate her birthday. He submitted that the contradiction about the birth date has nothing to do with the offence into which the Appellant was charged. He submitted that at the trial, the age of the victim was not challenged by the Appellant, arguing raising at this stage is an afterthought. He submitted that a PF3 exhibit P3 indicates the age of PW1 to be fourteen years. To my respective view, in sexual offences under a cluster of statutory sexual offences, proof of age of a victim is paramount. In the case of Georqe Kasanda (Supra), at page 10 to 11, the apex Court cited its previous position in Issaya Renatus vs republic, Criminal Appeal NO. 52/2015 (unreported), propounded that, 'We are keenly conscious ofthe fact that age is ofgreat essence in establishing the offence of statutory rape under section 130 (1)(2) (e), the moreso, under the provision, it is a requirement that the victim must be under the age of eighteen. That being so, it is most desirable that the evidence as to proof of age be given by the victim, relative, parent, medicalpractioner or where available, by the production of a birth certificate. There may be cases, in our view, where the court may infer the existence of any fact including the age of the victim on the authority of section 122 of TEA " Herein, PW1 said she is fourteen years old and was born on 12/2/2017. This created doubt, it cannot be said, the age of PW1 was proved. It is true that in a PF3 exhibit P3, at a front page on particulars of PW1 which were recorded at the police station, depict PW1 is aged 14 years old. However Dickson Godfrey (PW5) clinical officer when was adducing evidence, said nothing regarding the age of PW1. In fact, PW5 when he was making his findings did not confirm the age of PW1 appearing in exhibit P3. As I have said those fourteen years, in exhibit P3 were recorded at police. A charge sheet crafted by the public prosecutor reflect the Appellant was arraigned for committing unnatural offence contrary to section 154 (1) (a) and (2) of Cap 16 (Supra). Subsection (2) of section 154, is in respect to offence committed to a child under the age often years. Meaning that, even the prosecution was uncertain of the age of the victim. The only recourse available was for the prosecution to produce evidence indicating the age of PW1. However, in view of contradiction brought by PW1, the conviction against the Appellant cannot sail through. And in view of the circumstances of this matter as per the recap of evidence trailing the events culminating to the commission of offence, I am of the view that it is undesirable to mount a retrial. The judgment of the trial court is quashed and sentence of thirty years, set aside. The Appellant to be released forthwith, unless legally held for other causes. Appeal allowed. \ E. B. LUVANDA JUDGE /23/11/2023 through virtual court attended by the Appellant and Mr. Elipidi Eugeni Tarimo learned State Attorney for the Respondent. E.B LUVANDA JUDGE 23/11/2023 6