FERDICK KANGA v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 6986 OF 2024 (Arising from Criminal Case No. 59 of 2023 of the District Court of Tarime (Hon. S. J Mwakihaba – SRM)) FERDICK FIDEL KANGA@ FREDRICK……………………………..….….APPELLANT VERSUS THE REPUBLIC…………………………………..……………………………RESPONDENT JUDGEMENT OF THE COURT 24/06/2024 & 05/08/2024 Kafanabo, J.: The Appellant herein was arraigned in the District Court of Tarime, at Tarime (hereinafter the ‘trial court’) charged with one count of an unnatural offence contrary to section 154(1) of the Penal Code, Cap. 16 R.E. 2022. In the particulars of the offence, it was alleged that between the 20th day of May 2023 and the 20th May 2023 at Korotambe Village within Tarime District in the Mara Region, the Appellant had carnal knowledge of one BAXAB (a fictitious name adopted to conceal the identity of the victim), hereinafter the ‘victim’, against the order of nature. The Appellant pleaded not guilty to the charge and thus full trial was necessary. Brief facts of the matter as alleged by the prosecution in the trial court are that the victim and the Appellant were living together as husband and 1 wife at Korotambe Village within the Tarime District in the Mara Region. On diverse dates between 20th May 2023 to 24th July 2023 the Appellant forced the victim to have carnal knowledge with him against the order of nature. As a result, several times between the said dates the Appellant inserted his penis into the victim’s anus by force. It was further alleged that the victim’s tolerance level was breached when the Appellant had carnal knowledge of the victim against the order of nature on 24th July 2023. The matter was reported to the police, and on the same day, the victim was taken to the Korotambe Health Centre for medical examination where it was found that the victim’s anus was penetrated by a blunt object. It is on record that the Appellant was arrested on 1st August 2023, and taken to the Sirari Police Station. On 28th August 2023, the accused was arraigned in court, and the full trial was conducted in the days that followed his plea of not guilty to the charge. On 19th December 2023, the Appellant was found guilty as charged by the trial court and thus convicted accordingly. The Appellant was then sentenced to serve thirty years’ imprisonment. The appellant being aggrieved by the conviction and sentence of the trial court appealed to this court challenging the decision of the trial court on several grounds the substance of which is as follows: 1. That, the trial court erred in law and in fact to convict and sentence the Appellant whilst the Respondent failed to prove his case beyond a reasonable doubt. 2 2. That, the trial magistrate erred in law and in fact to convict and sentence the Appellant relying on hearsay evidence from PW1 and PW3, and that the ten-cell leader to whom the matter was first reported never testified. 3. That, the learned trial Magistrate erred in law and in fact to sentence the Appellant without considering the evidence of DW1 that allegations originated from a land dispute between the Appellant’s sister (Flora Fidel Kanga) and the Appellant’s wife (the victim). 4. That, the case against the Appellant was cooked by all the Respondent’s witnesses, i.e. PW1, PW2, and PW3, to harm the Appellant. Moreover, on 30th May 2024 when this appeal came for hearing the Appellant prayed to present additional grounds of appeal, the prayer which was granted by the court. The additional grounds for appeal were that: 5. The Respondent did not tender as evidence a knife as exhibit which was allegedly used to terrorize the victim. 6. There was a contradiction of the Respondent’s witnesses on the dates of the incident. 7. The names of the victims in the PF3 and the charge sheet differ. When the appeal was called up for hearing the Appellant entered an appearance in person and the Respondent was represented by Ms. Joyce Matimbwi, learned State Attorney. In support of the appeal, the Appellant adopted his grounds of appeal as part of his submissions. He also submitted that the source of the conflict 3 was the land dispute in their family where he was the approved heir of the farm which his sister Flora was interested in. His sister used to cultivate the said farm, but when he was appointed the heir by the family disputes with his sister started. Since she wanted the land so much, she used other means to ensure that she got the land by herself. The Appellant further submitted that his sister colluded with the his wife (the victim) because they were best friends, and she even became the Appellant’s wife through his said sister. So they colluded, cooked the case and he was arrested for the offence of having carnal knowledge of the victim against the order of nature, which was not true. He further submitted that he lived with the victim since 2017 and never did anything like that to her, but it was raised after the land dispute arose between him and his sister. The Appellant further submitted that he was sentenced wrongly because he did not commit the offence he was charged with, he thus prayed that the court be pleased to reverse the decision of the trial court and set him free. Opposing the appeal, Ms. Matimbwi, the learned State Attorney, submitted that the Respondent objects to the appeal and supports the guilty finding and the sentence imposed by the trial court. As regards the first ground of Appeal, it was submitted that the Respondent proved the offence beyond a reasonable doubt. The Respondent called three witnesses and tendered one exhibit. Also PW1’s testimony, on pages 9-10 of the trial court proceedings, indicates that the Appellant had the carnal knowledge of the victim against the order of nature by force. It 4 was the submission of the learned counsel that the testimony of PW2, the medical doctor, proved that the anus of the victim was penetrated by a blunt object. PF3 of the victim was admitted as exhibit P1. Also, the testimony of PW3, the investigator of the case, corroborated the testimony of PW1. It was also submitted that in sexual offences the best evidence is that of the victim, citing the case of Selemani Makumba v. Republic, [2006] TLR 379. The 2nd ground of appeal was a complaint on hearsay evidence and not calling a ten-cell leader as a witness. The Respondent’s submission was that calling a ten-cell leader as a witness was not necessary taking into account that the offence was proved beyond a reasonable doubt. Moreover, under section 143 of the Evidence Act, Cap. 6 R.E. 2019, no particular number of witnesses is required to prove a particular fact and thus the ten- cell leader was not a material witness. Further, it was submitted that PW1 evidence is not hearsay evidence, but direct evidence because she was the victim of the offence. The learned State Attorney, on the 3rd ground of appeal, submitted that the Appellant’s evidence was duly considered by the trial court as indicated on page 9 of the judgment. Evidence of both parties was considered, but the Respondent’s evidence was heavier than that of the Appellant. Also, this court has the mandate to reevaluate the trial court’s evidence if it considers that the Appellant’s defence was not considered. The case of Muhsin Kombo v. Republic, Criminal Appeal No. 82 of 2016 was cited to bolster the Respondent’s submission. 5 It was further submitted that the land dispute in the Appellant’s family which was alleged to be an impetus and cause of this case, is different from the present case and that the Appellant did not adduce any evidence in the trial court that there was a land dispute between him and his relatives or sister. Regarding the 4th ground of appeal, it was submitted that the court heard the case and believed the witnesses who testified before the court as every witness is entitled to credence. The cases of Goodluck Kyando v. Republic 2006 TLR and Omar Ahmed v. Republic (1983) TLR 52 were cited in support of the Respondent’s submission. Responding to the 5th ground of Appeal, the learned State Attorney submitted that the knife in question was not an element in proving the offence charged against the Appellant. The 6th ground of appeal was on the inconsistency of testimonies especially of the medical doctor on dates, the learned state attorney prayed that the court refer to the handwritten proceedings because she believed it was a typing error. The 7th and last ground of appeal was on the fact that the PF3 admitted as exhibit P1, and relied upon by the trial court bears a different name from that of the alleged victim. The learned State Attorney submitted that exhibit P1 was tendered and admitted by the trial court without objection from the Appellant. The Appellant had room to object the same during the trial but did not, objecting to it now is an afterthought. 6 After hearing the parties’ submissions, it is the turn of this court now to determine the appeal in light of the grounds of appeal as argued by the parties. Commencing with the first ground of appeal, it was argued by the Appellant that the Respondent failed to prove their case beyond a reasonable doubt. On the other hand, the Respondent argued that the case against the Appellant was proved beyond reasonable doubt. In determining this ground of appeal the following matters are important to consider: 1. The charge sheet dated 28th August 2023, in respect of which the Appellant was prosecuted and convicted, in its particulars of the offence indicates that the Appellant, between the 20th day of May 2023 and the 20th May 2023 at Korotambe Village within Tarime District in the Mara Region, had carnal knowledge of the victim against the order of nature. 2. The facts of the case as read over to the Appellant on 30 th October 2023, indicate that on diverse dates between 20th May 2023 to 24th July 2023 the Appellant forced the victim to have carnal knowledge with him against the order of nature, and on 24th July 2024, the matter was reported to the police, and on the same day the victim was taken to hospital for examination. 3. The record of the court indicates that on 8th November 2023 PW1 (the victim) testified in court that on diverse dates between 20 th May 2023 and 24th May 2023, the Appellant had carnal knowledge of her against the order of nature, and on that last day, 24th May 2023, the matter 7 was reported to the Sirari police station and, on the same day, the victim was taken to hospital for examination. 4. On 21/11/2023 PW2, a clinical officer from Korotambe health center, testified that on 24/07/2023 he attended a victim and found that her anus was penetrated by a blunt object which caused bruises and dilated anal. He also prepared a PF3 which was tendered and admitted as exhibit P1. In his testimony, PW2 also mentioned two different names of the same victim(patient) he attended. The difference in the names of the victim was not explained by the Respondent in the trial court. 5. The PF3 admitted as exhibit P1 is dated 24/07/2023 as the date on which the victim was taken to and attended at the Hospital. The PF3 also indicates a different name of the victim, that is, it was not BAXAB. Therefore, in light of the above facts, it is clear that the charge sheet varies with the facts read over to the accused on the aspect of the date on which the offence was committed. The charge sheet and the facts differ from the testimony of the victim on the date the offence was committed, and when she was taken to the hospital. The charge sheet indicates that the offence was committed on 20th May 2023, and the facts indicate that it was on 24th July 2023, but the testimony of PW1 indicates that the offence was committed on 24th May 2023. As if that was not perplexing enough, exhibit P1, a PF3 of the victim, shows that the victim was attended on 24th July 2023, which is not compatible with the testimony of the victim. The bewilderment is also on the name of the victim on the PF3 which is different from that indicated in the charge sheet. 8 The above simple analysis indicates that there are serious inconsistencies in the evidence of the Respondent. Also the charge sheet varies with the evidence adduced on the date of the commission of the offence and the name of the victim. Since the testimonies of two key witnesses of the Respondent differ by two months on the date when the offence was committed, and when the victim was taken to hospital it is clear that there are grave doubts on when the offence was committed and whether the offence was committed at all. The law on the inconsistency of evidence was well stated in the case of Matera Simango @ Masana vs Republic (Criminal Appeal 517 of 2019) [2021] TZCA 621 (29 October 2021). The Court of Appeal held that: ‘Similarly, we entertain no doubt that the descriptive inconsistencies and contradictions in the testimonies of the prosecution witnesses as reflected in the evidence reproduced above, is material and went to the root of the prosecution case. It is indeed, unfortunate that the two courts below did not thoroughly address those 10 inconsistencies and contradictions which are apparent in the prosecution witnesses' evidence and resolve it as required by law. By way of emphasis on the importance of resolving contradictions and inconsistencies, we wish to reiterate what the Court stated in Mohamed Said Matula v. Republic [1995] T.L.R. 3 that: - "Where the testimony of witnesses contains inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them where possible, else the 9 court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root of the matter. " Moreover, in the case of Juma Antoni v Republic, Criminal Appeal No. 571 of 2020, the Court of Appeal, when commenting on the reliance of section 127(6) of the Evidence Act, Cap. 6 R.E. 2019 held that: “…where the only evidence is that of the victim or a witness of tender age the court is required to receive such evidence notwithstanding that it is not corroborated. However, the court is cautioned not to act on such evidence to convict an accused person, unless it assesses the credibility of the victim's account or of the witness of tender age and satisfy itself that such evidence is truthful. We emphasised this in the cases of REHANI SAID NYAMILA VS REPUBLIC, Criminal Appeal No. 222 of 2019 and MOHAMED SAID VS REPUBLIC, Criminal Appeal No. 145 of 2017 (both unreported) In the latter, case we stated: ''We think it was never intended that the word of the victim of the sexual offence should be taken as gospel truth but that her or his testimony should pass the test of truthfulness. We have no doubt that justice in cases of sexual offences requires strict compliance with the rules of evidence in general, and s. 127 (7) of Cap 6 in particular, and that such compliance will lead to punish offenders only in deserving cases." Additionally, in the case of Juma Antoni v. Republic (supra), the Court of Appeal held that: 10 ‘In the first place as earlier stated, although the evidence of the doctor (PW3) was that of an expert, the date on which the victim was taken to the hospital had nothing to do with medical expertise and as such, the evidence on the date in question should not have been ignored or treated casually by the two courts below as it has a bearing on the credibility of the victim. Thus, the contrast on the date when the victim was taken to the hospital all coming from the prosecution side cast a serious doubt on the prosecution case and it raises more questions than answers on the credibility of the victim's account.’ It was further held that: “Therefore, as earlier stated, the contradiction on the date of reporting to the hospital taints the credibility of the victim and in a nutshell, she was not truthful as to when she was taken to the hospital.” The circumstances underscored in the above referred authority fall squarely on the present case as regards inconsistencies on the dates of the commission of the offence, and as to when the victim was taken to hospital and attended by a medical doctor. In one testimony there was a difference of four days, and in another there was a difference of, appaling, sixty days or more. Moreover, the inconsistencies highlighted above, were made worse by the variation between the charge sheet, the facts as read over to the Appellant, and the evidence adduced. In the case of Matera Simango @ Masana vs Republic (supra) the Court of Appeal held that: 11 ‘In the final analysis, considering the variance between the allegation in the charge and the evidence; the material inconsistencies and contradictions in the prosecution evidence, and the unreliability of the exhibits as we have alluded to above, it cannot be concluded that the case against the appellant was proved beyond reasonable doubt as found by the trial court and confirmed by the first appellate court. Moreover, PF3 admitted as exhibit P1, was for purposes of proving that the victim was carnally known by the Appellant against the order of nature. However, it bears the name of another person different from that indicated in the charge sheet. It follows that the said exhibit was wrongly admitted in evidence and has no evidential value in the present case. Under the circumstances, the said exhibit P1 is hereby expunged from the record. Finally, given the above highlighted and discussed variations and inconsistences on record the Respondent’s case is tainted with grave doubts. It is therefore unsafe for this court to rule that the case against the Appellant was proved at the required standard. It is thus clear that the Respondent failed to prove the case against the Appellant beyond a reasonable doubt. See the case of Hamisi Msitu v Republic, Criminal No. 71 of 2008 (unreported). Since the above ground disposes of the appeal, the determination of other grounds of appeal will be of academic value. In light of the foregoing, the appeal is meritorious and thus allowed. The trial court’s finding of guilty is hereby quashed and the conviction of the Appellant is set aside. Therefore, the Appellant, unless held for another 12 lawful cause, is set free and should be immediately released from the prison facility at which he is currently detained. It is so oi^ered^Fh^right of appeal is explained. K. I Kafanabo Judge 05/08/2024 The judgment was delivered in open court in the presence of Ms. Agma Haule, State Attorney for the Republic, and in the presence of the Appellant. K. I Kafanabo Judge 05/08/2024 13