FERDINAND MATEI SHAO V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CRIMINAL APPEAL NO. 20356 OF 2024 (Originating from Criminal Case No. 233 of 2022 of Rombo District Court at Mkuu) FERDINAND MATEI SHAO ………………………………. APPELLANT VERSUS REPUBLIC ………………………………………….......... RESPONDENT JUDGMENT 10/12/2024 & 24/01/2025 SIMFUKWE, J. The appellant Ferdinand Matei Shao was charged before the District Court of Rombo (trial court) with the offence of Defilement of Idiots or Imbeciles contrary to section 137 of the Penal Code, Cap 16 R.E 2022. It was alleged before the trial court that on 06th day of November 2022 at about 14:30 hrs at Mamsera Juu village within Rombo District in Kilimanjaro 1 Region, the appellant unlawfully had sexual intercourse with one BR a girl of 20 years old who was an imbecile. The brief facts of the case are to the effect that on the fateful day PW1 one Elias Kianda Shayo, the brother of the victim heard someone screaming from his mother’s room. He went to the said room and found the appellant red handed having sexual intercourse with the victim. Both, the appellant and the victim are alleged to have been found naked. However, the appellant escaped instantly. The mother of the victim (PW2) inspected the victim and saw sperms. She took the victim to the police station and later to Huruma Hospital for medical examination. PW3 Dr. Jackson Richard Kimario who examined the victim, gave a testimony to the effect that the victim was sodomized. PW3 tendered a PF3 to support his testimony. In his defence, the appellant denied to had committed the offence. He said that he was arrested while on his way from his business. After considering evidence of both parties, the trial court found the appellant guilty of the offence charged and convicted him. He was sentenced to serve 14 years in jail. He was aggrieved with both the conviction and sentence. Thus, he appealed before this court on three grounds: 2 1. That, the learned trial Magistrate erred both in law and fact in convicting and sentencing the appellant despite the charge being not proved beyond reasonable doubt against the appellant and to the required standard by the law. 2. That, the learned trial Magistrate erred both in law and fact in failing to note that, PW1 and PW2 gave very highly suspicious evidence against the appellant which was supposed to be approached with great caution. 3. That, the learned trial Magistrate grossly erred both in law and fact in convicting the appellant basing on weak, tenuous, contradictory, inconsistent, uncorroborated, incredible and wholly unreliable prosecution evidence from prosecution witnesses. In his additional grounds of appeal, the appellant raised the following grounds: 1. That, the case against the appellant proved with non-compliance of section 62(1)(c) of the Tanzania Evidence Act (Cap 6 R.E 2022). 2. That, the trial magistrate erred in law and fact to convict the appellant by relying on little bruises in the PF3 (Exh P1) which does not prove the offence as required to the law of the land. (sic) 3 3. That, the trial magistrate erred in law and fact to convict the appellant where failure to recognize the incredibility of PW1 and PW2 their wobbly evidence adduced before the trial court. (sic) 4. That, the appellant was convicted on evidence which engaged speculations and conjectures which have no room in criminal trials. 5. That, the victim’s age was not proved as required by the law. 6. That, the appellant was convicted on a defective charge. The appellant prayed this court to allow the appeal, quash the conviction, set aside the sentence and acquit the appellant accordingly. During the hearing, the appellant had no representation while the respondent was represented by Ms. Juliet Komba learned State Attorney. The appeal was ordered to be argued by way of written submissions. However, the appellant opted to adopt his grounds of appeal. In her reply submission, Ms. Julieth Komba submitted among other things that in this case defilement of idiot or imbecile involved a woman who was 20 years old. Thus, in proving the charged offence the age of the victim was immaterial. Ms. Komba explained that in order to prove the offence charged what was required to be proved were two ingredients: First, that a woman is an idiot or imbecile. Second, that the accused knew that the victim is an idiot and did have carnal knowledge of her. 4 The learned State Attorney made reference to the evidence of all prosecution witnesses and the trial court observation at page 16 of the proceedings where it was noted that the victim was abnormal. She was of the opinion that it was from that evidence that the prosecution succeeded to prove the first element of the offence, that the victim was mentally unbalanced. On the second element, Ms. Komba submitted that PW1 the brother of the victim stated that he knew the accused as their neighbour and relative. Moreover, it was PW1 who caught the appellant having carnal knowledge of the victim in his mother’s room. However, the appellant managed to escape when PW1 tried to catch him. Ms. Komba submitted further that evidence of PW1 was corroborated by PW2 who stated that she knew the appellant since when he was young. Also, on the material date when PW2 entered her room, she found PW1 holding the appellant’s hand but the appellant managed to escape. PW1 informed PW2 that he found the appellant having carnal knowledge of the victim as reflected at page 8-9 of the proceedings. It was stated further that at page 20 of the proceedings, the appellant admitted being PW2’s neighbour and resident of the same village where the victim and her family reside. Thus, the appellant knew that the victim 5 was an idiot and he was caught by PW1 having carnal knowledge of her. Hence, the second element of the offence was met as it was held in the case of Aziz Mustapha v. R, Criminal Appeal No. 21 of 2021, HC at Arusha at page 9-10. Ms. Komba continued to elaborate that it is a general principle that in sexual offences the best evidence comes from the victim as it was held in the case of Selemani Makumba v. R, Criminal Appeal No. 94 of 1999 [2006] TZCA 96. However, in our scenario PW1 was an eye witness as he witnessed what transpired on the material date as he found the appellant having carnal knowledge of the victim. It was stated further that PW3 a medical doctor who examined the victim testified that when he tried to interrogate the victim, she could not answer his questions and they were not understanding each other. The same led PW3 to conclude that the victim was mentally disordered. PW3 testified further that he examined the victim and found that she had bruises on her anus and discovered that a blunt object had penetrated into her anus. The learned state attorney was of the view that the prosecution case was proved beyond reasonable doubt as all elements of the offence were met. The charge sheet was not defective as it comprised all ingredients of the offence of defilement of idiot as required by the law. 6 In reply to the first additional ground of appeal, Ms. Komba quoted the section which was referred by the appellant, thus, section 62(1) (c) of the Evidence Act, Cap 6 R.E 2022 which provides that: “62(1) Oral evidence must, in all cases whatever, be direct; that is to say- (c) if it refers to a fact which could be perceived by any other sense, or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner.” It was replied further that evidence of PW1 falls under section 62(1) (a) of the Evidence Act (supra) which provides that: “62(1) Oral evidence must, in all cases whatever, be direct; that is to say- (a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;” Ms. Komba was firm that direct evidence is not only from a person who perceived it by any other sense or manner. The fact that PW1 testified to have caught the appellant in the act, it was enough to make him competent according to the law. The learned state attorney subscribed to 7 the case of Crospery Ntagalinda Koro v. R, Criminal Appeal No. 312 of 2015, CAT at Bukoba (unreported) which held that: “Every witness is entitled to credence and his testimony believed unless there are good and sufficient reasons not believing the witness.” In conclusion, Ms. Komba urged this court to dismiss the entire appeal, and uphold the conviction of the trial court. Having considered submissions of both parties, the grounds of appeal and the trial court’s record, the issue is whether the raised grounds of appeal have merit. I have examined the grounds of appeal together with the additional grounds, I have noted that all grounds except the ground in respect of age of the victim, points to the conclusion that the offence charged against the appellant was not proved beyond reasonable doubt. Thus, I will resolve the grounds of appeal cumulatively, by determining whether the prosecution case was proved beyond reasonable doubts. Section 137 of the Penal Code, (supra) provides that: “137. Any person who, knowing a woman to be an idiot or imbecile, has or attempts to have unlawful sexual intercourse with 8 her in circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the woman was an idiot or imbecile, is guilty of an offence and is liable to imprisonment for fourteen years, with or without corporal punishment.” In the case of Robert Madololyo and Another v. R (Consolidated Criminal Appeals Nos 46 & 428 of 2019) [2020] TZCA 1909 (17 December 2020) at page 12 it was stated that: “......section 137 of the Penal Code which provides: "137. Any person who, knowing a woman to be an idiot or imbecile, has or attempts to have unlawful sexual intercourse with her in circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the woman was an idiot or imbecile, is guilty of an offence and is liable to imprisonment for fourteen years, with or without corporal punishment. "[Emphasis added] What comes out from the above cited provision is that, one, it relates to the offence of defilement of an idiot or imbecile and not rape. Two, the accused, at the time when he commits the offence of unlawful sexual intercourse or attempts to commit such an 9 offence should have known that the woman was idiot or imbecile; and three, it must be shown that the circumstances in which the offence was committed do not amount to rape.” Guided by the above authorities, I have gone through evidence of all prosecution witnesses and the defence of the appellant in order to satisfy myself whether the offence charged was proved beyond reasonable doubts. Ms. Komba submitted that PW1 was an eyewitness who found the victim and the appellant having sexual intercourse in his mother’s room. Both of them were naked. PW1 said that he tried to catch the appellant, however, he escaped. PW2 the mother of the victim testified inter alia that he found the appellant in her room prior to his escape. The victim was taken to hospital on the same day where PW3 examined her and found bruises in her anus. In his defence before the trial court the appellant simply said that he was at his shop on the material date. In his grounds of appeal, the appellant raised issues of suspicion, contradiction, inconsistency and uncorroborated prosecution evidence; and that the age of the victim was not proved. With due respect to the appellant, I have failed to trace any suspicious evidence, contradiction, inconsistency on part of prosecution evidence. As correctly submitted by the learned state attorney, PW1 found 10 the appellant in flagrante delicto (red handed having sexual intercourse with the victim). PW2 found the appellant in her room before he fled. The bruises which were discovered by PW3 the doctor who examined the victim proves that the appellant carnally knew the victim against the order of nature. From the available evidence, the appellant and PW1 and PW2 are relatives. In his defence the appellant did not state whether there was any grudge between him and the two eyewitnesses. In the circumstances, I am convinced to believe that the appellant committed the offence which he stood charged. Concerning the age of victim, I concur with the learned state attorney that age is immaterial in proving the offence of defilement of an idiot/imbecile. Age does not form part of the ingredients of the offence which the appellant was convicted of. The next issue for determination is whether the sentence of 14 years meted against the appellant was warranted. In the case of Kilalika Rubuye v. R (Criminal Appeal No. 111 of 2016) [2017] TZCA 322 (25 August 2017) the Court of appeal substituted the sentence of 14 years with 5 years on the reason that 14 years were the maximum prescribed sentence. In this case, the record shows that the appellant was 11 a first offender. That being the case, I am of considered opinion that the appellant deserved leniency. Based on that reason, I set aside the sentence of 14 years and substitute it with the sentence of five years imprisonment. That said, conviction against the appellant is hereby confirmed and the sentence of 14 years imprisonment meted by the trial court against the appellant is substituted with the sentence of five (5) years imprisonment. Appeal partly allowed in respect of sentence only. Order accordingly. Dated and delivered at Moshi this 24th day of January 2025. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 24/01/2025 12