FARAJA JOSHUA

-S' THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO.000003970 OF 2024 FARAJA JOSHUA @BARAKA COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC RESPONDENT / DEFENDANT JUDGMENT BADE,J The Appellanl herein was arraigned at tlie Resident Magistrate’s Court of Arusha at Arusha and charged with one count of Grave Sexual Abuse contrary to section 138 C(1) and (2)(b) of the Penal Code,(Cap 16 R.E 2019). After a full hearing, the trial court found the Appellant guilty and sentenced him to 20 years imprisonment. Before going to the merit of this Appeal I will make a brief review of the contextual background leading to this Appeal. It was the prosecution’s case that on 22/01/2021 at Sinoni area within the City, District and Region of Arusha, the Appellant sexually abused a girl aged four (4) years old, who will be referred to as a “victim” or “PW3” in this Judgment for purposes of preserving her privacy. PWl who is the father of the victim testified first. He adduced evidence that on the date of the incident, the victim’s mother was taking off the victim’s clothes to bathe her. On the process of removing her clothes, she found sperm in her clotlies, she called him, and when he came and looked at her clothes where he confirmed what lie was seeing was indeed spenn. They interrogated the victim about the speim and the victim mentioned the Appellant as the one who inserted his penis into her vagina in her grandmother’s house since she used to be dropped at her grandmother’s house from school and the Appellant was the houseboy at the said house. PWl sent the victim to Levolosi Hospital and after inspection, the doctor told him that there was no penetration and added that it seems the suspect rubbed his penis around the vaginal area of the victim. Having heard this statement, PWl went to the police station, where he obtained a PF3 and again went to Mount Mem hospital where a victim was hospitalized. On the other hand, PW2 a police officer, testified that she interrogated the accused person who admitted to the commission of this offence and recorded his statement. The victim was the last witness on the prosecution side. She testified that accused did “tabia mbaya on her” at her grandmother’s house. PW3 further testified that the Appellant put off her clothes and then put his penis into her vagina. V On the defence side, the Appellant denied any commission of the offence, as well as ever knowing the victim. He explained how he was arrested at his home and told that he was facing the offence of rape. After a full hearing, the trial court did not buy the Appellant’s story and held that prosecution proved the case against the Appellant beyond the reasonable doubt, and was convicted and sentenced to serve 20 years in prison. Being aggrieved by the said decision he lodged the instant Appeal on7 grounds in his petition of appeal, to the effect that: 1. The trial court eiTed in law and in facts in not finding the exhibit PI was extracted before the incident took place, hence it should be expunged from the court’s record. 2. The trial court erred in law and in facts by not finding that there was uncertainty of dates alleged to have the offence committed. 3. The trial court erred in law and in facts by not finding that the victim procured unswom evidence which the court ought not to act upon. 4. The trial court erred in law and in fact by not finding that there was variance in respect of offence to be committed. 5. The trial court erred in law and in fact by not finding that the prosecution has failed to call material witnesses, a victim’s mother and the doctor. 6. The trial court erred in law and in fact by not finding that the prosecution failed to remind charge to the Appellant before the preliminai'y hearing. 7. The trial court erred in law and in fact by not finding that the case against Appellant was not proved. This appeal was disposed of by way of written submission. The Appellant appeared in person, unrepresented, while the Respondent did not abide with the order of this court to file their Reply submission, hence the matter proceeded on one side. With regard to the 1st ground, the Appellant submitted that it is on record that the incident took place on 22/01/2021 while the cautioned statement was recorded on 25/05/2020. He referred this court at exhibit PI. In his opinion exhibit P1 is invalid, hence it should not be relied upon for his conviction. On the 2nd ground, the Appellant submitted that at page 1 of the trial court’s judgment it is indicated the incident took place on 22/07/2019 but the witnesses for the prosecution testified that the incidence took place on 21/01/2021. In his view, the charge against him is incurably defective as it is at variance in respect to the date of alleged commission of the offence. The Appellant further argues that it is trite law tiiat when at any stage of a trial the evidence procured seems to differ with the charge sheet there must be an amendment and in the instant matter there was no such amendment done. To support his position, he cited section 234(1) of the Criminal Procedure Act and the case of Abel Masikiti vs R, Criminal Appeal No. 24 of 2015. With regard to the 3rd ground, he submitted that the victim testified without an oath or affirmation, arguing that this is contrary to section 127(2) of the Evidence Act, which requires a child of a tender age to be tested with some pertinent question to ascertain if he/she understands the meaning and duty to speak the truth, although he/she should promise to speak the truth only in her evidence. The Appellant added that at the time when the victim testified the provision of section 127 (2) of the Evidence Act was still valid. To support his position, he cited the case of Mkorongo James vs R, Criminal Appeal No. 498 of 2020. Regarding grounds 4, 5,6 and 7, the Appellant argued these grounds jointly. He argues that the prosecution failed to prove the case against him beyond reasonable doubt. This is due to the fact that there was variance in respect to the offence alleged to have been committed as the Appellant was charged with an offence of grave sexual abuse but evidence given by PWl and PW2 shows that it was about rape. In his view the charge sheet is defective and the sentence and judgment meted upon him is a nullity as it proceeded from proceedings which were also a nullity. To cement his argument he cited the case of Abel Masikiti (supra). His further argument is that he was not reminded of the charge sheet before the taking of plea during the preliminai7 hearing and this is contrary to section 192 (3) of the Criminal Procedure Act. He added that he was prejudiced by not reminded of the charge against him before the preliminary hearing. Having perused the record of this Appeal and hearing the submission made by the Appellant, the issue for determination before me is whether the prosecution proved the case against the Appellant beyond the reasonable doubt. I shall answer the framed issue as 1 examine the grounds of appeal as raised and argued by the Appellant. The Appellant alleges that exhibit PI should be expunged from the record since it was made before the date of the incident as it is dated 25/05/2020. Going through exhibit PI, I found the argument by the Appellant misconceived and without any basis as the said exhibit is dated 25/01/2021 and not 25/05/2020 as alleged. Another allegation by the Appellant is that there is a variation on the dates regarding the commission of offence. While the prosecution stated that the offence took place on 21/01/2021, the trial court on its judgment stated that the offence took place on 22/07/2019. The record of the Appeal revealed that the offence took place on 22/01/2021 and not 21/01/2021 as alleged by the Appellant. But then it is tme that at page 1 of the trial court’s judgment, the trial magistrate stated the offence to have taken place on 22/07/2019. This in my view is a slip of the pen. I say so because the trial magistrate stated and 1 quote: "It was alleged by prosecution that on 22nd day ofJuly 2019 at Sinon area within the City, district and region of Arusha, the accused has sexually abuse one "LL” a girly (sic) offour (4) years old by rubbing his penis (against) on her vagina.'''’ You can see from this statement that there was a slip of the pen because she said it was alleged by the prosecution... in actual sense, the date alleged by the prosecution is indeed 22/01/2021 and certainly not 22/07/2019 as written by the trial magistrate. It is not difficult to see that the Magistrate was making reference to the date alleged by the prosecution, and not any other date. Hence this argument is without a merit. Another argument raised by the Appellant in faulting the decision of the trial court is that the trial court wrongly acted on the unsworn evidence of the victim contrary to section 127 (2) ot the Evidence Act. Going through the record of this appeal, at page 14 of the typed proceedings, it is clear that the victim gave her testimony without taking an oath or making an affinnation. Rather, she gave her testimony after promising to tell the truth. Section 127 (2) pennit a child of a tender age to give evidence without taking an oath or making an affinnation on condition that before giving evidence the child must promise to tell the truth to the court and not to tell any lies. Nonetheless it is mindful to note the amendments to the Evidence Act ushered in by the Legal Sector Laws (Miscellaneous Amendments) Act, No. 1 1 of2023 amended section 127 by adding subsection (7) which reads: "Notwithstanding any other law to the contrary, failure by a child of a tender age to meet the provisions of subsection (2)shall not render the evidence ofsuch child inadmissible". This defeats any contention to render such evidence of a child of tender age such as PW2 inadmissible. The logic behind such assertion is two fold. Firstly, the amendment as contained in the ground of appeal has come to cure the legality issue in admissibility of a child evidence that has been unprocedurally procured by the court. The affected party here would only be the prosecution side, whose evidence would have been rendered ineffective not by its weight, but rather by reason of the procedural defect, affecting the legality of its admission. Admittedly, this would have advantaged the Appellant, however, it cannot be said that its right has been violated. The Appellant would have had and he indeed had, the opportunity to cross examine the witness to discredit the weight of its evidence. The Appellant is not at all prejudiced. See court of Appeal in Baraka Steven vs Republic, Criminal Appeal No 541 of 2020, pp 19 to 20 that: “ the victim evidence is improperly taken for want of promise from her that she will tell truth ... we are alive • under the law as it obtains that a child witness can give evidence without oath as long they promise to tell the truth. much as we agreed the declaration, to tell the truth, did not come from the witness, it is equally plainly clear the court had regarded the dictates of the law the omission to record the declaration had not come from the PW7, and in that regard it is not fatal, as we have not seen any prejudice to the Appellant so as to vitiate PW7’s testimony. Secondly, the curing amendment to the said section of evidence has a retrospective effect as it deals with procedural aspect of the law and thus not affecting substantive rights. The reason for asserting as such is found in the ruling of the deflmcl East African Court of Appeal when it considered the issue of the retrospective effect of legislation. The said case was quoted with approval by our Court of Appeal in several other decisions making it a trite law. See for example S.S Makoroiigo vs Severino Consigilio, Civil Appeal No. 6 of 2003 (unreported) as well as Bidco Oil and Soap Ltd vs Commissioner General Tanzania Revenue Authority, Civil Appeal No 89 of 2009 (unreported). In the case of Municipality of Mombasa versus Nyali Ltd (1963) EA 371. Newbold, J.A. held at page 374: "Whether or not legislation operates retrospectively depends on the intention ofthe enacting body as manifested by legislation. In seeking to ascertain the intention behind the legislation the courts are guided by certain rules of construction. One ofthese rules is that ifthe legislation affects substantive rights it would not be construed to have retrospective operation unless a clear intention to the effect is manifested; whereas if it affects procedure only, prima facie it operates retrospectively unless there is good reason to the contrary. But in the last resort it is the intention behind the legislation which has to be ascertained and a rule ofconstruction is only one ofthefactors to which regard must be had in order to ascertain that intention ” Therefore I am satisfied that the complaint is misconceived and baseless, bearing in mind that the Appellant admitted to have committed the said offence on the cautioned statement which he neither objected its admission nor cross examined PW2 on it when he tendered the said statement. See page 10 of the trial court’s typed proceedings. Yet another complaint by the Appellant is that there was variance between the charge sheet and testimony of prosecution witnesses about the namre of the offence. That, while the charge sheet stated that it was a grave sexual abuse, the prosecution evidence especially that of PWl and PW2 shows that the offence is rape. Going through the proceedings of the trial court especially the evidence of PWI and that of PW2 I cannot see where those witness said the Appellant raped the victim. PWl testified that after she saw sperms in the victim’s clothes and after interrogating the victim, she understood her that the accused inserted his penis into her vaginal but after they sent her to the hospital, the doctor told her that there was no penetration. On the other hand, PW2 testified that she was the one who recorded the Appellant’s statement on allegation of rape. This statement did not mean that she testified that the Appellant raped a victim. So the Appellant’s allegation that the charge sheet was defective is unfounded. The last complaint raised by the Appellant is that, he was not reminded the charge during the preliminary hearing. Reading section 193 (3) between the lines, I can not see the basis of the Appellant’s argument. It is not a requirement under the said subsection that before the preliminaiy hearing, the Appellant must be reminded of the charge. Nonetheless, even if that was the case, the irregularity is curable under section 388 of the Criminal Procedure Act Cap 20 RE 2022. In any case, I must point out that while the duty of the prosecution is to prove the case beyond reasonable doubt, the Appellant is required to raise some doubts in the prosecution case. The Appellant here did not raise any doubts on the prosecution’s case. Having said that, tliis Appeal is dismissed for lack of merits. The decision of the trial court is hereby confirmed. It is so ordered. Dated at ARUSHA this 11th of October 2024 . 0 i r A.Z BADE JUDGE OF THE HIGH COURT