ELISHA CHARLES 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY

AT ARUSHA CRIMINAL APPEAL NO. 18796 OF 2024 (Originating from the District Court of Arusha at Arusha in Criminal Case No. 147 of 2022)

BETWEEN ELISHA CHARLES........................................................................ APPELLANT

VERSUS THE REPUBLIC............................................................................ RESPONDENT

JUDGMENT 27/09/2024 & 31/10/2024 MWENDA, J.: Before the District Court of Arusha at Arusha (hereinafter the trial court) the appellant, Elisha Charles stood charged with the offence of Unnatural Offence Contrary to Section 154 (1) (a) (2) of the Penal Code, Cap 16, R. E, 2002. The prosecution initially alleged that, on the 4th day of October 2022, at Sanawari area within the City, District and Region of Arusha, the accused now appellant, had carnal knowledge of the victim, one "EJF" a boy of four (4) years old. The appellant noticeably pleaded not guilty to the charge. 1 1 Page The factual evidence adduced by the prosecution side during trial leading to his conviction are as follows. On the material date at night hours, the victim (PW1) was sleeping with her sister Sophia. While sleeping, the appellant whom he referred to as Brother Elisha went in, stripped off his pair of trousers before he inserted his male genitalia into his anal orifice. Havinc successfully accomplished his evil mission, he left. However, at the doorway, he met with the victim's mother (PW.2), whom by that time (she) was returning from fetching water. Seeing the victim's mother, the appellant took to his heels. Even attempts by the victim's mother to call him back did not bear fruits. Thereafter the victim's mother went into the bedroom where she found the victim crying. Upon inquiry on what befell him, the

victim reported being sodomized by the appellant. Efforts were mounted to apprehend the appellant, and it was done successfully. He was then conveyed to the police central station. The victim was also issued with a PF-3 Form for medical examination. At Mount Meru Hospital he was medically examined and found to be raped against the order of nature. Witnesses had their statements recorded and after the completion of investigation, the appellant was arraigned in court but denied any involvement in the alleged crime. At the 2 | Page end of the judicial day, he was found guilty and sentenced to serve a jail term of life imprisonment. Aggrieved by the trial court's conviction and sentence meted against him, the appellant is now appealing before this court armed with the following grounds as follows.

1. That, the trial court grossly erred in law and fact by failing to observe the dictates of section 160B (a) and (b) of the Penal Code (Cap 16 R.E 2022), since the appellant was of the age of 18 years at the time of commission of offence, thus upon conviction, he was supposed to be sentenced to corporal punishment and not life sentence. See ZUBERI MOHAMED @MKAPA Vs Republic, Criminal Appeal No. 563 of 2020.

2. That the trial court erred in law and facts by convicting the appellant by relying on the evidence of PW1 (Victim) and PW2 (mother of the victim) which was incredible, incoherent and unreliable thus could not have surface to sustain the conviction against the appellant.

3. That, the trial court erred in law and fact in convicting the appellant by relying on weak, unreliable, and wanting identification evidence adduced by PW1 (Victim) and PW2 (mother of the victim). 3 | Page 4. That, the trial court erred in law and fact in not finding that the case against the appellant was not proved beyond reasonable doubt. Before the court, both sides were in attendance. The appellant appeared in person whilst Ms. Eunice Makala, the learned state attorney represented the respondent, Republic. The Hearing of this appeal was conducted by way of written submission. Arguing the 2nd, 3rd and 4th grounds of appeal collectively, the appellant complained that the charge against him was not proved beyond reasonable doubts. According to him, the evidence of PW1 (the victim) and PW2 (the victim's mother) was incredible, unreliable and incoherent thus insufficient to warrant conviction. Further to that, he challenged his identification as being weak and unreliable as it was not free from all possibilities of mistaken identity. He supported this argument while referring to the principle stated in the case of WAZIRI AMANI V. REPUBLIC [1980] T.L.R 250. While resisting these grounds of appeal, Ms. Makala averred that the victim (PW.l) and her mother (PW.2) were credible witnesses. She believed PW1 properly identified the appellant as he knew him before and saw him before 4

| Page the incident. According to her, the victim's evidence was supported by that of PW2 (her mother) who also knew the appellant sometimes before the incident. Regarding identification at the scene of crime, the learned state attorney said the prosecution's witnesses described intensity/source of light which enabled them to identify the appellant. She believes these witnesses were credible and coherent throughout the proceedings. In support to this point, she cited the case of GOODLUCK KYANDO V. REPUBLIC, [2006] TLR 376. Moreover Ms. Makala submitted that in cases involving unnatural offences, the prosecution is required to prove penetration, and according to her such evidence came from PW1 when he testified how the appellant undressed him and inserted his male organ into his anal orifice. According to her, PW.l's evidence was well collaborated by that of PW3 (a doctor) who medically examined the victim and detected signs of penetration by a blunt object. She believed the best evidence in this case came from the victim and to support that, she cited the case of SELEMAN MAKUMBA V. REPUBLIC, [2006] T.L.R 374. To conclude, she prayed this appeal to be dismissed on its entirety. Based on the submissions from both sides regarding the 2nd, 3rd and 4th grounds of appeal, a through scrutiny of the same observed two things 5 | Page involved. One, identification of the victim's

assailant at the scene of crime and two, the weight of the evidence tendered by the prosecution. Starting with the issue of identification, I am alive of the principle enunciated in the most celebrated case of Waziri Amani v. REPUBLIC [1980] TLR 250.In the said case factors for assessment of evidence involving identification were put forward, namely: "1. The time the witness had the accused under observation.

2. The distance at which he observed him.

3. The conditions in which such observation occurred for instance whether it was day or night (whether it was dark and if so, was there moonlight or hurricane lamp) and.

4. Whether or not the witness knew or had seen the accused before." In the present matter, PW1 and PW2 testified that the incident occurred on 4th day of October 2024 at 19:00 hours. According to them, the house was illuminated by electricity light whose intensity, according to PW.2, covered the large area. Furthermore, these witnesses were able to identify the 6 | Page appellant as they knew him before the incident as according to PW.2, he previously he was pancakes' vendor in the neighborhood. The nature of offence was committed at zero range (close range) and again, soon after the incident, the victim reported to his mother (PW.2). With this type of evidence, this court is of the view that the appellant was properly identified at the scene of crime by PW.l and PW.2 since the conditions favoring correct identification were met. As to whether the prosecution proved the charge beyond reasonable doubt it is crucial to state that in offences of this nature, the prosecution is required to prove penetration against the order of nature and the person responsible. This position is borne under Section 154 (1) (a) of the Penal Code, Cap 16 R.E 2022 which state as follows, that: S.154"(l) Any person who- has carnal knowledge of any person against the order of nature... commits an offence and is liable to imprisonment for life and in any case to imprisonment for a term of not less than

thirty years." [emphasis added] 7 | Pa ge From the evidence on record, it was PWl's evidence that while sleeping inside their house, the appellant went in, stripped him naked and inserted his male organ into his anal orifice. The victim described the act by using taboo words in Kiswahili language as follows and I quote, that: "Brother Elisha came undressed my trouser and inserted his penis and did unlawful act "na akaniingiza mdudu, na akanifanyia tabia mbaya" I felt so much pain, I cried, I told my mother." His evidence was supported with that of PW2, his mother who met the appellant immediately after the incident at the doorway running away. This witness testified what she observed onto the victim in that the anal orifice was ruptured and had blood stains. She also said that in that part of the body, faeces and sperms were visible. PW.l's and PW.2's evidence was collaborated with PW3 (a doctor) who medically examined the victim and observed that the victim's anal orifice was ruptured on its upper part and had signs of being penetrated by a blunt object. He supported his findings by tendering the PF-3 as Exhibit P.

1. With the said summary of what was tendered by the prosecution, this court is of the view that the appellant had carnal knowledge with the victim (PW1) against the order of nature. That 8 | Page said, the 2nd, 3rd and 4th grounds of appeal are found with no merit and are hereby dismissed. Regarding sentence, the appellant complained at the 1st ground of appeal that what was imposed against him was excessive contrary to Section 160 B (a) and (b) of the Penal Code, Cap 16 R.E 2022. He impressed that since he was 18 years old by the time of the commission of the offence, the trial magistrate ought to have subjected him to corporal punishment. This stance was supported by Ms. Makala who prayed for this court to impose the proper sentence. Principally, a convict of rape offences who is of 18 years old or less, being the first offender shall be subjected to corporal punishment. This is by virtue of Section 131 (2) (a) of the Penal Code which provides as follows, that: - "(2) Notwithstanding the provisions of any law, where the offence is committed by a boy who is of the age of eighteen years or less, he shall- (a) if a first offender, be sentenced to corporal punishment only; [emphasis added] 9 | Page In the present case, the proceedings reveal that at the time of the commission of the offence in question, the appellant was 18 years old. Since the records are silent as to whether

the appellant is a habitual offender or not, this court draws inference that he was the first offender thus, he was supposed to be sentenced as per section 131 (2) (a) of the Penal CAP 16 R.E 2022 which is corporal punishment only. For those reasons, this court reverse the sentence imposed to the appellant as per Section 160B (a) and (b) of the Penal Code, which provides that: "For promotion and protection of the right of the child, nothing in chapter XV of this Code shall prevent the court from exercising- (a) reversionary powers to satisfy that, cruel sentences are not imposed to persons of or below the age of eighteen years; or (b) discretionary powers in imposing sentences to persons of or below the age of eighteen years." The same was held in the case of ZUBERI MOHAMED @ MKAPA VS REPUBLIC, Criminal Appeal No. 563 of 2020. The Court of Appeal sitting at 10 | P a g e Dodoma gave due consideration to the dictates of section 160B of the Penal Code where they observed that: since the appellant was of the age of 18 years at the time of commission of the offence, upon conviction he was supposed to be sentenced to corporal punishment, but that was not the case. Failure to observe the dictates of the law in our considered view, occasioned miscarriage of justice on the part the appellant as he was sentenced to more than what he deserved." As I intimated earlier, the Appellant was

sentenced to life imprisonment despite being 18 years old at the time of commission of the offence which by itself occasioned miscarriage of justice on his side. That being said the 1st ground of appeal is found with merit and hereby succeeds. Eventually, the appeal is partly allowed. The sentence of life imprisonment imposed to the appellant is hereby reversed and set aside. In lieu thereof, the appellant deserved corporal punishment in terms of Section 160B of the penal Code as he was 18 years old at the time he committed the offence. However, taking into consideration that he had already spent time in prison 11 | P a ge which was miscarriage of justice on his side, I order for immediate release of the appellant from the prison in consideration that he had already served the proper sentenced imposed to him. It is so ordered. DATED at ARUSHA this 31st day of October, 2024.

JUDGE 12 | P a g e