Judgement DC

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI DC. CRIMINAL APPEAL NO. 15565 OF 2024 (Originating from Criminal Case No. 91 of 2023 in the District Court of Mwanga at Mwanga) MARIJANI ATHUMANI KILUNDA…..………………………….. APPELLANT VERSUS REPUBLIC………………………….….…………….…………. RESPONDENT JUDGEMENT Date of Last Order: 19.08.2024 Date of Judgment: 09.09.2024 MONGELLA, J. The appellant was arraigned at the district court of Mwanga at Mwanga (henceforth, the trial court) for grave sexual abuse contrary to Section 138 C (1) and (2) (b) of the Penal Code [Cap 16 R.E 2022)]. The particulars of the offence were that: on 24.07.2023 at or about 10:00hrs at Rangaa village within Mwanga district in Kilimanjaro region, the appellant did put his male organ on the female organ of a 7-year-old girl (the victim or PW2, hereinafter). Page 1 of 14 The appellant denied the charge levelled against him leading the matter to proceeded to trial. To prove the case against him, the prosecution paraded four witnesses. The prosecution case was to effect that: on 24.07.2023 at 10:00hrs, the appellant called the victim as she was heading to school. He told her to play a game with him and handed her TZS 200/-. The appellant took her to an unfinished church building in which they used to attend community prayers, undressed her underpants and put his male organ on her female organ. The appellant then threatened to kill her if she told anyone of the incident. The victim however, told one Mwanamkuu and one Kindo, her fellow students and they told PW4, their teacher. The victim informed PW4 that she was raped by the appellant at an unfinished church building. PW4 informed the head teacher who then reported to the village office. PW1 (the victim’s mother) was called by a person who informed her that the victim had been raped by the appellant. She went to her mother’s house where she resides with the victim and found the victim had already taken a shower. She then reported the matter to Msangeni police post and the accused was arrested. Then PW2 was taken to Kifula hospital whereby PW1 was informed that there was no penetration. PW3 investigated the matter including visiting the crime scene. The appellant was also arrested and interrogated. The trial court found the prosecution to have established a prima facie case against the appellant. The appellant defended his case Page 2 of 14 solely. He testified on his arrest on 31.07.2023, saying that he was only told he had raped someone. That he was then taken to the village office, then to Msangeni police post and finally to Mwanga police station. The next day, his statement was recorded and he denied the allegation. He was thereafter arraigned before the district court of Mwanga at Mwanga on 02.08.2023. According to him, the case was fabricated against him following a land dispute between him and the victim’s grandmother. The trial court found the case against the appellant was proved beyond reasonable doubt. The appellant was convicted and sentenced to serve 20 years in prison. Aggrieved, the appellant has preferred this appeal on the following grounds: 1. That, the trial court Magistrate erred in law and facts to convict and sentence the appellant despite the prosecution's failure to prove its case beyond reasonable doubt. 2. That, the trial Magistrate grossly erred in law and facts to convict and sentence the appellant by relying on contradictory evidence adduced by the prosecution witnesses. 3. That, the trial Magistrate grossly erred in law and facts for failure to consider the evidence adduced by the defence side. Page 3 of 14 4. That, the trial court erred in law and facts in convicting and sentencing the appellant basing on the evidence of PW2 which was taken in contravention of section 127(2) and (4) of the Evidence Act, [ Cap 6 R.E. 2022]. The appeal was argued by written submissions whereby the appellant stood unrepresented while the respondent was represented by Mr. Makore Simeon Maheri. The appellant opted to collectively submit on the 1st, 2nd and 3rd grounds of appeal. He commenced by stating the legal position settled under Section 111 of the Evidence Act to the effect that the standard of proof in criminal cases is beyond reasonable doubt. He added that the weakness of defence cannot be used to build the prosecution’s case. In that respect, he challenged the prosecution on the ground that it failed to build its case. He claimed that there exist doubts in the prosecution case, which renders his conviction to have been based on the weakness of the defence. To substantiate his claim, he referred the court to page 9 of the trial court’s Judgment. He further faulted the prosecution for failure to call the victim’s grandmother as a witness. Further, claiming that the case was fabricated against him, he alleged that the victim mentioned the incidence to have taken place at a different place. Addressing the 4th ground, he challenged the trial court for relying on the evidence of PW2, which was taken contrary to the requirements set under Section 127(2) and (6) of the Evidence Act. Explaining the provisions, he contended that the same require the Page 4 of 14 child to possess sufficient intelligence and to understand the duty to speak the truth. Arguing further, he averred that in determining whether the child understands the duty to speak the truth, the court must pose questions that should be recorded in the proceedings. Bringing the law to the matter at hand, he challenged that no questions were recorded. In those premises, he contended that PW2’s promise to tell the truth was incompetent as the law was not complied with. The appellant believed that this rendered PW2’s evidence inadmissible and unreliable under Section 198 of the Criminal Procedure Act [Cap 20 R.E 2022]. He fortified his argument with the case of Mohamed Ramadhani @ Kolahili vs. Republic (Criminal Appeal No. 396 of 2021) [2023] TZCA 81 (2 March 2023) and Godi Kasenegala vs. Republic (Criminal Appeal 10 of 2008) [2010] TZCA 5 (2 September 2010) TANZLII. He further contended that the contravention of Section 127(2) of the Evidence Act renders the prosecution evidence without evidential value. Still challenging PW2’s promise, he contended that the same was recorded in indirect speech, which he found irregular. In his stance, the proceedings ought to have reflected the questions posed to the child and her response thereto. He finalised his submissions by praying for the appeal to be allowed, the conviction quashed, sentence set aside and he be set at liberty. The appeal did not go unopposed. Mr. Maheri, also collectively replied to the 1st, 2nd and 3rd grounds of appeal. In his submission on these grounds, he was firm that the prosecution proved the case against the appellant beyond reasonable doubt through four Page 5 of 14 witnesses. In substantiating his point, he referred to the testimony of PW1, the victim’s mother, arguing that she proved the age of the victim. He considered PW1 as a proper party to prove the victim’s age as settled in Jafari s/o Musa vs. DPP (Criminal Appeal No. 234 of 2019) [2022] TZCA 29 (17 February 2022) TANZLII. He further referred to the testimony of PW2 arguing that, as the victim in the offence charged, she narrated how the incident occurred and identified the appellant by mentioning his name. In the premises, he held the stance that the trial court correctly found the evidence of the prosecution satisfactory. Addressing the 4th ground, Mr. Maheri contended that the trial Magistrate conducted a voire dire test to determine whether PW2 understood the nature of oath and the duty to tell the truth. He was thus firm that the trial Magistrate complied with the requirement under Section 127(2) of the Evidence Act. He cited the case of Ally Ngozi vs. Republic (Criminal Appeal No. 216 of 2018) [2020] TZCA 1786 (24 September 2020) whereby the Court addressed the requirement under Section 127(2) and (3) of Evidence Act, to cement his point. In addition, he averred that Section 127(6) of the Evidence Act provides that the best evidence in sexual offences is from the victim and that the same does not need corroboration to form credible basis of conviction where the court is satisfied that the victim is telling nothing but the truth. He argued further that PW2 named the assailant at the earliest possible opportunity which attests to the credibility and reliability of her evidence. Referring to the evidence Page 6 of 14 of PW1 and PW4, which in his view, corroborated that of the victim, he stressed that the victim’s evidence was credible and reliable. Maintaining that the prosecution proved all elements of the offence of grave sexual abuse, he urged the Court to dismiss the ground of appeal for lacking merit. I have considered the grounds of appeal, the submissions of both parties, as well as, the trial court record. Unlike the parties, I will first address the 4th ground of appeal and collectively resolve the 1st, 2nd and 3rd grounds of appeal. Under the 4th ground, the appellant faulted PW2’s evidence on the ground that the trial court failed to comply with the requirement of Section 127(2) of the Evidence Act. For ease of reference, the provision states: “(2) A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies.” A child of tender age is defined under Section 127(4) of the Evidence Act, which states: “127(4) For the purposes of subsections (2) and (3), the expression “child of tender age” means a child whose apparent age is not more than fourteen years.” According to PW1 who is the victim’s mother, PW2 was 7 years old. PW2 herself testified as such. It is settled that the age of the victim Page 7 of 14 may be proved by the victim, her guardian, parents, relatives or medical practitioner. See, Issaya Renatus vs Republic (Criminal Appeal 542 of 2015) [2016] TZCA 218 (26 April 2016) TANZLII, in which the Court of Appeal stated: “We are keenly conscious of the fact that age is of great essence in establishing the offence of statutory rape under section 130 (1) (2) (e), the more so as, 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, medical practitioner or, where available, by the production of a birth certificate.” In that regard, the age of the victim was duly established by PW1, the victim’s mother as well as PW2, the victim herself. In the foregoing reasoning, since she was 7 years old, PW2 was clearly a child of tender age and the requirement under section 127(2) of the Evidence Act ought to have been observed. Section 127(2) has been interpreted by the Court of Appeal on multiple occasions. The same requires that the court evaluates if the child of tender age understands the nature of oath and if so, would take her evidence on oath, if not then her evidence would be taken when under promise to tell the truth. The provision was well interpreted in the case of George Lucas Marwa vs. Republic (Criminal Appeal No.382 of 2019) [2023] TZCA 17424 TANZLII whereby the Court held: Page 8 of 14 “It is our conviction that where a witness is a child of tender age, a trial court should at the beginning ask a few pertinent questions, so as to determine whether or not the child witness understands the nature of oath. If he replies in the affirmative, then he or she can proceed to give evidence on oath or affirmation, depending on the religion professed by such child witness. If such child does not understand the nature of oath, he should, before giving evidence, be required to promise to tell the truth and not to tell lies. The procedure explained should be reflected on the proceedings of the trial court.” See also; Mohamed Ramadhani @ Kolahili vs. Republic (supra) I have observed the trial court’s proceedings and it is apparent that indeed the trial magistrate failed to comply with the settled requirements. There were no questions put to PW2 to observe whether or not she understood the nature of oath. Further, the trial Magistrate reported that PW2 promised to speak the truth as she did not know the meaning of oath. The promise ought to have appeared as directly stated by PW2, meaning that it should have been in direct speech and not reported. However, despite the omission, the law has been developed to accommodate irregularities in recording the promise of a child of tender age before recording his/her testimony. Under the Legal Sector Laws (Miscellaneous Amendments) Act, 2023 which introduced Section 127 (7) of the Evidence Act, the failure of a child of tender age to meet the requirement of Section 127(2) of the Act Page 9 of 14 would not render the evidence of the said child inadmissible. The provision states: “32. The principal Act is amended in section 127, by- (a) adding immediately after subsection (6) the following: (7) Notwithstanding any other law to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible.” In the case of George Jonas Lesilwa vs. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024) TANZLII, the Court of Appeal expounded on the meaning behind the amendment introduced under Section 127(7) of the Evidence Act. It stated: “For the sake of completeness, we are constrained, before leaving this subject, to observe that, going by the above interpretation of the law, it must be clear that, the evidence of a child of tender age should not be discarded on flimsy reasons without proof on a balance of probabilities that there was something lacking that really affected the quality and credibility of such evidence. In other words, an appellate court should look at the substance of the complaint raised by the appellant and see whether the alleged non-compliance with section 127 (2) of the Evidence Act was of such a nature as to be said, in rational terms, to have produced a substantial defect upon such evidence. The above observation, no doubt is the reason behind the recent introduction of section 127 (7) of the Evidence Act as amended by the Legal Sector Laws (Miscellaneous Amendment) Act No.11 of 2023…” Page 10 of 14 From the foregoing provision, it is thus the settled position that non- compliance with Section 127(7) of the Evidence Act would not render the evidence of PW2 inadmissible. What remains at stake is for the Court to determine the credibility of PW2 as a witness. The 1st ground therefore stands without merit and is dismissed. This moves me to address the remaining grounds under which the credibility of PW2’s evidence shall be weighed. Under the 1st, 2nd and 3rd grounds of appeal, the appellant challenges whether the case against the appellant was proved beyond reasonable doubt. The ingredients of the offence of grave sexual abuse were well mentioned in the case of Hando Dawido vs. Republic (Criminal Appeal 7 of 2018) 2021 TZCA 719 (2 December 2021) TANZLII, whereby the Court of Appeal, having referred to Section 138 C (1) (a) and 2 (b) of the Penal Code stated: “According to the above provision the prosecution was required to prove the ingredients of the offence of grave sexual abuse which are; one the use of any part of the human body for sexual gratification and two, lack of consent of the other person to whom the act is done.” PW2 testified that on the material day, whose date she did not disclose, at 10:00am the appellant called her as she was heading to school. He then gave her TZS. 200/- and went with her to an unfished church building in which he removed her underpants and put his male organ in her female organ. In her testimony, she stated “toa mdudu wake akaniwekea kwenye uchi wangu”. He then threatened to kill her if she disclosed such fact to anyone. Page 11 of 14 However, she told her schoolmates, one Mwanamkuu and one Kindo and the two informed PW4, their teacher. She was then taken to Msangeni police post and then sent to Kifula hospital. On cross examination, PW2 defined the act as rape stating “alinivua chupi akaniwekea dudu lake”. PW1, the victim’s mother, testified that on 24.07.2023 she was informed by a person that the victim was raped by the appellant. She came back to her mother’s home whereby the victim lived and found that she had already bathed. She reported the matter at Msangeni police post. The accused was then arrested by citizens and sent to the village office. She also got a PF3 and went to Kifula hospital on 31.07.2023 whereby the medical doctor stated that there had not been any penetration “alimchezea juu”. PW3, the investigator, testified that she was handed the case file for investigation on 31.07.2023. By then, the appellant had already been interrogated and was in lock up. She also visited the crime scene. PW4 testified that on 24.07.2023, PW2 informed her that she was raped by the appellant as she was heading to school. She informed the headteacher who informed the village office. It is evident from the evidence of prosecution witnesses to wit; PW1, PW2 and PW4 that the victim reported that she was raped by the appellant. It is PW1 that clarified that after a visit to Kifula hospital on 31.07.2023, it was then found by the doctor that there had not been any penetration. Still, the victim’s evidence was to the effect that she had been raped. She did not explain or clarify in detail on Page 12 of 14 how the said act was done to her apart from stating that the appellant entered his male organ into her female organ. Further, I find there being multiple doubts in the prosecution evidence. PW2 testified that after the incident she went to school and told two fellow students of the incident. It was the two students that informed PW4 of the incident. It seems the headteacher was involved in the issue and eventually the village office on the very same day. PW1 and PW4 mentioned that the incident took place on 24.07.2024. However, the appellant was apparently arrested on 31.07.2023, a week later and no explanation was offered on why it took a week for him to be arrested if he really was mentioned at the earliest possible time. PW2 was also medically examined a week later while it is alleged that the matter was reported to the police on the same day the incident was alleged to have occurred. The delay in investigation raises questions as to the incident taking place and what really transpired. Was it an issue of sexual abuse or rape as claimed by PW2? The delayed medical examination also affected the results raising doubts as to whether there was penetration even if slight or none at all. It is settled that penetration however slight would amount to rape. On the other hand, I find the absence of penetration in this matter was used to charge the appellant with the offence of grave sexual abuse. However, the prosecution witnesses led evidence in relation to the offence of rape, which was not charged and also not proved in accordance with PW1’s testimony as to the medical report. Page 13 of 14 In the foregoing observation, I am of the view that the prosecution did not prove its case beyond reasonable doubt. I therefore hereby quash the appellant’s conviction and set aside the sentence met against him. I order for his immediate release from prison custody, unless held for some other lawful cause. Dated and delivered at Moshi on this 09th day of September, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 14 of 14