Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 12409 OF 2024 (Originating from the District Court of Masasi at Masasi in Criminal Case No. 81 of 2023) JUSTINE SIXTUS ALEX@ PEPO..................................... APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT JUDGMENT 20 June, 2024 & 22ld July, 2024 MPAZE, J.: On 1st July, 2023 at around 17:00 hours, Sauda Maridadi (PW1), the mother of the victim (PW2), noticed her child walking with difficulty. She asked him if he was in pain or if something was wrong, but he responded that he was neither in pain nor had any problem. As a concerned parent, she was not satisfied with these answers and informed the victim's father so he could investigate further. After examining their child, the father informed his wife (PW1) that their child had been sexually assaulted in the anus as there were bruises and some discharge. i When they asked the victim about who had committed the assault, he named the perpetrator as a person called Pepo (the appellant). Acting on this information, PW1, together with the victim and the victim's father, went to Ndanda Police Station to report the incident. They were provided with a PF3 form and then proceeded to Ndanda Hospital for a medical examination. At Ndanda Hospital, the victim was examined by Dr. Damas Michael (PW4). After his examination, Dr. Michael found evidence of sexual assault in the anal area, noting bruises and swelling. He observed a white discharge, known as slough, and pointed out that the anal sphincter was not intact and was loose, indicating penetration. Dr. Michael tendered the PF3, which was admitted as Exhibit P3. The results of the examination were sent back to the police station, leading to the arrest of the appellant on 2nd July, 2023 for committing an unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [Cap 16 R.E 2022]. On 4th July, 2023 the appellant was taken to court facing a charge which alleged that; 'On 1st July, 2023 at Mpowora village within Masasi District in Mtwara Region, Justine Sixtus Alex did have carnal knowledge with 2 on FM a boy aged Eight (8) years old and a standard two pupil at Mpowora Primary school against the order of nature'. The particulars of the offence were read and explained to the appellant, who entered a plea of not guilty. The prosecution paraded six witnesses to substantiate their case. The evidence on record, reveals that on the afternoon of 1st July, 2023 the victim was engaged in a game of bao (a traditional game) with his friends, Shuku Zakaria and Twaha. The appellant arrived where they were playing and asked them to accompany him to collect firewood. The other children refused, but the victim and PW3 agreed and followed the appellant. When they reached the forest PW3 decided to return home and leave the appellant and PW2 alone, after the two remained is when the appellant tied the victim's hands with a rope, pushed him down, took off the victim's trousers, and then inserted his penis into the victim's anus. After completion, he released the victim and told him to go home. At home, the victim appeared unwell, and after being examined, he was taken to the police and then to the hospital where he was examined and discovered that he was sexually abused against the order of nature. In his defence, the appellant, who defended himself without calling any witnesses, claimed that on 2nd July, 2023 he was surprised when two 3 people on a motorcycle arrived at his home and told him he was needed at the Ndanda police station. He asked them why but was told he would find out there. He said while at the police station, he was subjected to torture being forced to confess to committing an unnatural offence, and on 12th July, 2023 he was taken to court for an offence which he claimed he had never committed. After hearing the evidence from both sides, the trial magistrate concluded that the prosecution had proven their case beyond a reasonable doubt. Consequently, the appellant was found guilty of an unnatural offence and sentenced to life imprisonment. The appellant was dissatisfied with this decision and appealed to this court, raising four grounds for appeal. However, after examining them and as submitted by the State Attorney in this appeal, the appeal centres on two grounds namely; 1. The prosecution failed to prove their case beyond a reasonable doubt. 2. The trial court failed to consider the appellant's defence. When the matter came for the hearing of the appeal, the appellant appeared in person while the Republic was represented by Ms. Florence Mbamba, State Attorney. 4 When allowed to submit his grounds of appeal, the appellant asked the court to adopt his grounds of appeal as stated in the petition of appeal and allowed the State Attorney to submit first. If necessary, he would make a rejoinder after the state attorney's submission. On her part, the State Attorney strongly opposed the appeal, submitting that grounds 1, 2, and 4 of the appeal all focused on the complaint that the prosecution failed to prove their case beyond a reasonable doubt. In opposing this ground, Ms. Florence Mbamba, the State Attorney, began by explaining that for the offence the appellant was facing to be proven, it was the prosecution's duty to establish two things; that there was penetration and that the penetration was against the order of nature. In her submissions, Ms. Florence argued, while referring to court records and various decisions, that the prosecution successfully proved their case beyond a reasonable doubt. The State Attorney submitted that the evidence of PW2, who is the victim in this case, clearly described what transpired when the appellant remained with him in the forest. She said PW2 testified that the appellant penetrated him by inserting his 'dudd into the victim's anus, stating that the insertion indicated penetration. 5 Ms. Florence asserted that the definition of the term dudd which the victim referred to as something which was inserted into his anus is found in the case of Hassan Kamunyu v. R, (Criminal Appeal No. 227 of 2016) published on www.tanzlii.org.tz [2018] TZCA 259. The State Attorney added that since the best evidence in sexual offences cases comes from the victim, as stated in the case of Ally Nqozi v. R, (Criminal Appeal No. 216 of 2018) published on www.tanzlii.org.tz [2020] TZCA 1786. To her PW2's testimony, which described what transpired to him, was sufficient to establish both penetration and that it was against the order of nature. The State Attorney noted that this testimony of penetration was also supported by PW4, the doctor who examined PW2. Regarding who committed the offence, Ms. Florence stated that PW2's testimony, along with that of PW3, who said he left PW2 and the appellant in the forest, was sufficient to establish this fact. She contended that the appellant did not cross-examine PW3, which implies that he agreed with PW3's testimony. To bolster this argument the State Attorney referred to the case of Nyerere Nyaque v. R, (Criminal Appeal No. 67 of 2010), published on www.tanzlii.go.tz [2012] TZCA 103. Concerning the issue of age, Ms. Florence submitted that PW1, the victim's mother, was able to confirm this by stating the victim's birth date 6 and tendered a birth certificate which was admitted at the trial court as exhibit. In light of all this, the State Attorney claimed that the charge against the appellant had been proven beyond a reasonable doubt. Addressing the complaint that the trial court failed to consider the appellant's defence, the State Attorney denied this allegation. She submitted that the trial court did consider the appellant's defence, referring the court to pages 4 to 5 of the typed judgment. Furthermore, the State Attorney said, as this court is the first appellate court with the duty to re-evaluate and analyze the evidence, it is within its power to do so and see if the defence of the appellant was considered or not. She cemented her argument by referring the court to the case of Leonard Mwanashoka v. R,(Criminal Appeal No. 226 of 2014), published on www.tanzlii.go.tz [2015] TZCA 294. In conclusion, the State Attorney prayed this court find the appeal without merit and dismiss it. In rejoinder, the appellant maintained that the case was not proven beyond a reasonable doubt. He referred to the testimony of PW2, noting that the witness had stated he informed his sister about the person who committed the act against him. However, neither his sister nor his father, who was also said to have apprehended the appellant, appeared in court 7 to testify. The appellant argued that the absence of these witnesses means that it cannot be said the case was proven beyond a reasonable doubt. After both parties have concluded their submissions, it falls upon the court to meticulously examine their arguments to determine the merit of this appeal. In evaluating its worthiness, my attention will be specifically drawn towards the two grounds of appeal that have been condensed. Beginning with the first ground, where the appellant complains that he was found guilty, convicted, and sentenced for an offence that was not proven beyond a reasonable doubt, I examined the charge against him and compared it with the evidence presented to determine the validity of this ground. The appellant was charged with an unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code. The relevant provision for this offence states; '154(1) Any person who- (a) has carnal knowledge of any personal against the order of nature (b) N/A (c) N/A 8 (2) Where the offence under subsection (1) is committed to a child under the age of eighteen years the offender shall be sentenced to life imprisonment'. During the submission, the State Attorney stated that this provision requires proving of two elements; penetration and against the order of nature. However, it is important to note that, beyond proving the two essential elements, it must be established that the appellant, and no one else, was responsible for the act of penetration against the order of nature inflicted upon the victim. This is the key implication of the term "Any person!' in the cited section. In other words, it is not enough to simply show that there was penetration against the order of nature against the victim; but also it must be proven that the person who committed the offence is the one who stands charged with that offence in this case the appellant. Returning to the case at hand, to determine whether there is evidence of penetration and that it was against the order of nature, I began with the victim's (PW2) testimony. He testified that he was penetrated in his anal area. In his own words, which I quote hereunder, he said; 'Akachukua mdudu wake akaniingizia sehemu ya mavi (Mchonyo wa Mavi) akaanza kunibaka' 9 This testimony was corroborated by PW4, the doctor who examined PW2. In his examination, he found PW2 had been penetrated against the order of nature, noting that the area had bruises, was swollen, was not intact, and there was discharge. He also observed that the anus was loose. PWl's observation that her son was not walking properly raised her suspicion, and upon further investigation, she discovered that her son had been penetrated. In the case cited by the learned State Attorney, Hassan Kamunyu {supra), discussing terms similar to those in the present case, the court clarified that the word "dudd', means "penis." It was stated; '...by the victim referring to a "dudu", PW1 was simply referring to the appellant's penis. By saying "anaingiza dudu lake kwenye mkundu wangu" he simply meant the appellant inserted his penis into his (PW1 ’s) anus.' Similarly in the case of Mathayo Laurence William Molel v. R, (Criminal Appeal No 53 of 2020) published on www.tanzlii.go.tz [2023] TZCA 52 the court had this to say; '...the said Mathayo used to take his dudu' and put it into my urinating part and into my anus", and "Mathayo used to put his dudu at my urinal part", they simply meant the appellant penetrated his penis into their respective vaginas or anus.' [Emphasis added]. io See also the case of Haruna Mtasiwa v. R, (Criminal Appeal No. 206 of 2018), published on www.tanzlii.org.tz [2020] TZCA 230. Upon examination of the evidence provided by PW2 and PW4, it is clear that this evidence sufficiently demonstrates that PW2 was subjected to penetration against the order of nature. Moving on to who was responsible for sodomizing PW2, PW2 testified that the appellant was the one who sodomized him. He described how the appellant penetrated him in the forest, where he had accompanied him to gather firewood. PW3 stated that he and PW2 accompanied the appellant to the forest to gather firewood upon his request. However, he returned home, leaving the appellant and PW2 behind, as correctly argued by the state attorney the appellant did not cross-examine this witness. Various decisions, including the case of Nyerere Nyaque {supra), have established that failure to cross-examine a particular important point implies acceptance of the truthfulness of the witness's testimony. See also, Amos Jackson v. Republic, (Criminal Appeal No. 439 of 2018), published on www.tanzlii.go.tz [2022] TZCA 467 and Kanaku Kidari v R, Criminal Appeal No 326 of 2021), published on www.tanzlii.go.tz [2023] TZCA 223 11 PW3, who was not cross-examined by the appellant, testified about accompanying the appellant and PW2 on the fateful day to help collect firewood. PW3 then left the appellant and PW2 alone and returned home. PW2 confirmed that he and the appellant were alone when the appellant sodomized him. This testimony indicates that the appellant was the one responsible for the penetration against the order of nature against PW2. In his defence, the appellant vehemently denied penetrating PW2, claiming that he was arrested on 2nd July, 2023 at his home. Despite this defence, the appellant did not provide any information about his whereabouts on 1st July, 2023 during the afternoon when the offence was said to have taken place. He made no mention of this date in his defence. During cross-examination, the appellant stated that he had no quarrels with the victim's family. Based on the evidence regarding who committed the unnatural offence against PW2, it is clear that the appellant is the perpetrator. No indications or signs suggesting that the case might have been fabricated against him. The appellant has complained that the offence was not proven due to the failure of bringing some witnesses, specifically, PW2's father, who was said to have apprehended the appellant, and PW2's sister, who was alleged to have been informed about the perpetrator. 12 Section 143 of the Evidence Act [Cap 6 R.E 2022] provides that there is no specific number of witnesses required to prove a particular fact, but what is important is the credibility and reliability of the witness giving the evidence. See Yohanis Msiqwa v. Republic, [1990] TLR 148, Leonce Evarist Maro v. R, (Criminal Appeal No. 458 of 2020), published on www.tanzlii.go.tz [2024] TZCA 341 and Harson Gerald Mbuya v. R, (Criminal Appeal No. 90 of 2012) published on www.tanzlii.go.tz [2024] TZCA 432. As discussed above, the essential elements required to prove this offence are penetration against the order of nature, which has been established by PW2 and PW4, and about identifying who committed the offence, the evidence from PW2 confirms that there was no other person responsible for the offence other than the appellant. Given this, I do not find that the failure to call the victim's father and sister as witnesses undermines the case. Their absence does not affect the credibility of the evidence provided. Therefore, I consider this complaint to be unfounded. Based on the above discussion regarding the first ground, I concur with the State Attorney that the prosecution has successfully proven its case beyond a reasonable doubt. 13 On the second ground, the appellant argued that the trial magistrate failed to consider his defence in the judgment. The State Attorney responded that the magistrate did take the appellant's defence into account, citing pages 4 and 5 of the typed judgment. In addressing this ground, I will apply the principle that a first appeal is essentially a rehearing. As the first appellate court, it must re-evaluate the entire evidence on record and subject it to rigorous scrutiny. If warranted, it will reach its own factual conclusions. See Edgar Kayumba v. DPP (Criminal Appeal No. 498 of 2017), published on www.tanzlii.org.tz [2020] TZCA 156. In Iddy Salum @ Fredy v. R, (Criminal Appeal No. 192 of 2018) published on www.tanzlii.go.tz [2023] TZCA 245, the Court of Appeal stated; "It is however, settled principle that where the courts below have omitted to consider the defence of the appellant, the Court has the power to undertake the duty with a view to deciding whether or not such defence raises any doubt in the prosecution case'. See also the case of Paschal John Munisi v. R, (Criminal Appeal No. 155 "A" of 2021), published on www.tanzlii.go.tz [2024] TZCA 71 In applying the principles established by the cited authorities, I have carefully reviewed the judgment and examined the pages referenced by 14 the State Attorney. These pages include a summary of both the prosecution's evidence and the appellant's defence. Apart from summarizing the evidence of both parties, I have observed that when analyzing the issues for determination, the trial magistrate relied solely on the prosecution's evidence without considering the appellant's defence. It is a settled law that the defence of the accused must be considered during judgment writing, particularly when the court is analyzing issues for determination. In this case, it has been noted that the appellant's defence was not adequately addressed. Nevertheless, in discussing whether the appellant committed the offence against PW2 herein above, I considered the appellant's defence and, after thorough evaluation, found that it does not create any reasonable doubt regarding the prosecution's case that would lead me to conclude differently from that of the trial court. For the reasons outlined above, I find that the appeal lacks merit and therefore dismiss it in its entirety. It is so ordered. Dated at Mtwara this 22nd July,2024 M.B Mpaze Judge 15 Court: Judgement has been delivered today in the presence of Ms. Florence Mbamba the learned State Attorney and appellant. M.B Mpaze Judge 22/7/2024 16