CRIMINAL APPEAL NO 308 OF 2022 FRANCIS ELIUD MNYAMWEZI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: WAMBALI. J.A.. MASH AKA, 3.A. And MASOUP, J.A.^ CRIMINAL APPEAL NO. 308 OF 2022 FRANCIS ELIUP @ MNYAMW EZI......................................................... APPELLANT VERSUS THE REPUBLIC..................................................................................RESPONPENT (Appeal from the decision of the High Court of Tanzania at Par es Salaam) ( Masabo. J.) dated the 9th day of February, 2022 in Criminal Appeal No. 82 of 2021 JUDGMENT OF THE COURT 4th June & 31st July, 2024 MASOUP. JA.: The appellant was dissatisfied with the decision of the High Court in Criminal Appeal No. 82 of 2021 upholding the decision of the District Court which convicted him of unnatural offence as charged and sentenced him to life imprisonment. The High Court was satisfied that the evidence of the victim, a child of six years old (PW3) and that of Sebastian Mapunda (PW4), a medical practitioner who examined the victim, established beyond reasonable doubt the allegation in the charge laid against the appellant that on diverse dates between January, 2020 and 6th May, 2020 at Kigogo Kati area, within Kinondoni District in Dar es Salaam Region, he had carnal knowledge of the victim (PW3) against the order of nature. The evidence of the victim graphically explained how the appellant carnally known her against the order of nature at four different times in his house, the pains she felt in that ordeal, how she reported the incident to her grandmother and named the appellant as the culprit. As a result, the appellant was arrested and she was, on her part, medically examined by PW4. The evidence of PW4 which was fortified by the PF3 (exhibit PI), established that the victim was, indeed, penetrated through her anus by a blunt object and thus corroborated the victim's testimony. The evidence of Omary Athumani (PW1), Hafsa Uwezapo (PW2) and G 555 D CPL Fredrick (PW5) had to do with what they heard the victim saying about the incident, the respective roles each witness played in relation to reporting the incident to the police, having the appellant arrested and the victim medically examined as well as carrying out the investigation on the incident. However, the evidence was discredited by the High Court on ground that it was mainly hearsay and therefore of no evidential value on the commission of the offence. That notwithstanding, the High Court found the 2 remaining evidence of PW3 and PW4 sufficient to ground the conviction as aforesaid. It therefore upheld the conviction and sentence and dismissed the appeal. Being aggrieved, the appellant raised seven grounds of appeal in his memorandum of appeal lodged on 16th September, 2022. However, considering the written submission lodged by the appellant and oral submission in reply given on behalf of the respondent Republic, the respective grounds can be condensed thus: One, the evidence of the victim was taken without complying with section 127(2) and (6) of the Evidence Act, Cap. 6; two, failure to prove when the offence charged was allegedly committed; three, credibility and reliability of the prosecution witnesses; and four, the prosecution case was not proved beyond reasonable doubt. At the hearing, the appellant appeared in person unrepresented, while the respondent was represented by Ms. Deborah Mushi and Ms. Salma Jafari, both learned State Attorneys. The appellant adopted his grounds of appeal and written submission. As he did not have anything to expound on, he preferred to hear the reply by the respondent whilst reserving his right for a rejoinder. Ms. Mushi's oral submission in reply was brief and focused. She argued the appeal in line with the above mentioned condensed grounds. On the first ground, the argument of the appellant was twofold. That the evidence of the victim was not received after compliance with section 127(2) of the Evidence Act, and further that it was not tested as to its truthfulness as required by section 127(6) of the Evidence Act. He relied on John Mkorongo v. Republic (Criminal Appeal No. 498 of 2020) [2022] TZCA 111 (11 March 2022, TANZLII). On the other hand, the learned State Attorney's argument was that since the record of appeal is, at page 15, evident that the victim promised to tell the truth as recorded by the trial court, such record is in itself sufficient to establish that the trial court where the victim appeared was satisfied that she promised to tell the truth in terms of section 127(2) of the Evidence Act. In relation to whether or not the victim was truthful, it was argued that the demeanour of the victim as a witness is within the mandate of the trial court which in this case was satisfied that the witness was credible and her evidence was reliable. It was further submitted that if we go by the record, there was nothing showing that there was misdirection on the part of the trial court in arriving at that finding. The record bears nothing suggestive of an 4 inference appearing to contradict the victim to the extent of tarnishing her credibility. She cited the case of George Jonas Lesilwa v. Republic (Criminal Appeal No. 374 of 2020) [2024] T7CA 269 (16 April 2024, TANZLII) to fortify her argument that once the victim promised to tell the truth, there was no requirement to conduct a voire dire test as the appellant insisted. She also cited in support the case of Hassan Kamunyu v. Republic (Criminal Appeal No. 277 of 2016) [2018] T7CA 259 (21 August 2018, TANZLII), in her bid to urge us to find that the evidence of the victim which was properly taken in accordance with section 127(2) of the Evidence Act and found to be credible by the trial and first appellate courts as well as the evidence of the medical doctor sufficiently proved the charge against the appellant beyond reasonable doubt. She urged us to disregard the appellant's complaint on this matter. To resolve the appellant's complaint on the first ground, we considered the record in the light of what pertained in the rival arguments whilst mindful of our position in George Jonas Lesilwa (supra). In that case, when faced with akin situation as is in this case, we held that: "It is crystal dear that where a child o f tender age gives evidence without taking oath or making an affirmation but after promising to tell the truth to the court and not to tell lies, as it happened in this casef the need to conduct a voire dire test as the appellant insisted, does not arise..... Going by the position o f the law, it must be dear that the evidence o f a child o f tender age should not be discarded on flimsy reasons without proof on a balance o f probabilities that there was something lacking that really affected the quality and credibility o f such evidence.....The observation no doubt is the reason behind the recent introduction o f section 127(7) o f the Evidence Act as amended by the Legal Sector Laws ( Miscellaneous Amendments) Act No. 11 o f2023." According to the record of appeal, it is apparent to us that the victim promised to tell the truth before she started to give her evidence on 13th August, 2020. As we stated in the above case/ that was in the circumstances quite sufficient. When the victim came back on 15th September, 2020 as is evident at page 16 of the record of appeal, she was reminded of her promise to tell the truth which she had already made on 13th September, 2020, and she is on the record to have promised to continue telling the truth before she continued to testify. Whilst also mindful of the import of the recent introduction of section 127(7) of the Evidence Act brought about by the Legal Sector Laws 6 (Miscellaneous Amendments) Act No. 11 of 2023, we find nothing in relation to the victim's promise to tell the truth and not to teli any lies that violated section 127(2) of the Evidence Act. As there was also nothing on the record that affected the reliability of such evidence, we proceed to answer the first condensed ground in the negative. On the second condensed ground which is on whether there was variance between the evidence and the charge as to the dates on which the offence was allegedly committed, it was the argument of the appellant if we were to summarise it that the prosecution did not lead evidence that the offence was committed on the diverse dates between January, 2020 and 6th May, 2020 as the existing evidence on the record is contradictory and not reliable. He relied on the case of Faraji Said v. Republic (Criminal Appeal No. 172 of 2018) [2020] TZCA 1755 (31 August 2020, TANZLII). The argument in reply of the respondent's counsel was that the evidence of PW3 that she was carnally known against the order of nature by the appellant at four different times at his residence, which evidence was not shaken during cross-examination, sufficiently proved that charge beyond reasonable doubt. According to the learned State Attorney, the victim's failure to specify the dates as specified in the charge sheet was not fatal as the 7 failure did not prejudice the appellant. As long as the victim testified that she was sodomised at four different times that evidence necessarily falls within the specified dates since the evidence was neither dented in the cross- examination nor controverted by the appellant's evidence. A close scrutiny of the record of appeal landed our eyes on the evidence of the victim and the defence evidence adduced by the appellant. We are satisfied that the victim was consistent that she was carnally known against the order of nature by the appellant at four different times at his place. The evidence also described how the appellant took her to his house, undressed her, undressed himself, had his penis inserted into her anus, the pain she felt in the process, how she revealed to her grandmother the ordeal she went through and that she named the appellant as the culprit. The cross-examination conducted by the appellant to shake the evidence of PW3 was feeble. It did not shake the fact that the appellant was the culprit who sodomised the victim at his place at four different times, and that he penetrated her anus by his penis, which she described as his "mdudi/'. What the victim said in examination in chief was consistent with what she maintained when cross-examined. The defence evidence did not raise any reasonable doubt to the evidence of PW3 and had nothing whose 8 foundation could be traced from the cross-examination conducted. For instance, see Hatibu Gandhi v. Republic [1996] T.L.R. 12; Mohamed Katindi v. Republic, [1986] T.L.R. 134 and Khalifa Hassan Malingula v. Republic (Criminal Appeal No. 70 of 2018) [2022] TZCA 583 (29 September 2022, TANZLII). We are thus satisfied that the appellant did not contradict the testimony of the victim. Our further examination of the substance of the cross-examination in the record of appeal revealed that the appellant did not cross-examine on the evidence of PW3 that she was sodomised by the appellant four different times. Since according to the record of appeal the appellant did not also dispute that the victim was sodomised on diverse dates between January, 2020 and 6th May, 2020 if we go by the memorandum of facts not in dispute, it follows that his failure to cross-examine the victim on that evidence meant that he accepted the truthfulness of that fact. We say so having considered the failure of the appellant to cross-examine with all factors in the case and our earlier finding as to the credibility of PW3. On this position, we drew inspiration from the cases of Hatari Masharubu @ Babu Ayubu v. Republic (Criminal Appeal No. 590 of 2017) [2021] TZCA 41 (26 February 9 2021, TANZLII) and Kwiga Mussa v. Samweli Mtubatwa [1989] T. L. R. 103. Although we are prepared to reject the appellant's complaint on the variance between the charge and the evidence based on the foregoing deliberations, we are settled, if we may add, that the failure of the victim to give evidence marching the dates specified in the charge is, in the circumstances, not fatal if we go by the import of section 234(3) of the Criminal Procedure Act, as applied also in Anthony Tito v. Republic (Criminal Appeal No. 605 of 2021) [2024] TZCA 45 (16 February 2024, TANZLII). That section reads thus: "S. 234(3) Variance between the charge and the evidence adduced in support o f it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for such variance if it is proved that the proceedings were in fact instituted within the time, if any, limited by law for the institution thereof." As we held in Anthony Tito (supra), since in the instant appeal the time of institution of the proceedings was not at issue, the above complaint is devoid of merit. We dismiss it. 10 With regard to the issue on whether the prosecution evidence was contradictory and not reliable as complained in the third ground, it has partly been answered by our findings in relation to the issues we have determined above. This is particularly so with regard to the evidence of PW3 which we found that it was properly taken and relied upon in accordance with section 127(2) and (7) of the Evidence Act respectively. Moreover, we are of the view that such evidence was not contradicted in any material particular by the appellant, and that it was credible and probable as to leave no reasonable doubt. We, additionally, found that the evidence of PW3 who is the victim is corroborated by the evidence of PW4 who examined the victim and found that she was indeed sodomised. Thus, the argument by the appellant that the prosecution evidence was so contradictory and improbable that it could not be relied upon is in the circumstances of this case without merit. On the contrary, we agree with the learned State Attorney that the evidence of the victim (PW3) and the medical doctor (PW4) is by itself and without the evidence of PW1, PW2, and PW5 which was discredited by the first appellate court, sufficient to sustain the conviction as found by the first appellate Judge. Since the appellant did not appeal against the discrediting of the evidence of PW1, PW2 and PW5, we 11 are therefore not entitled to consider the complaint on the credibility of the relevant witnesses for their evidence was not considered by the first appellate court in its decision upholding the conviction. Undoubtedly, the appellant was convicted on the basis of reliable and credible evidence of PW3 which is the best direct evidence of the victim in the case. See, Selemani Makumba v. Republic [2006] T. L. R. 379. Indeed, the evidence of the victim in relation to penetration was corroborated by that of PW4 which was the direct evidence of a medical practitioner who examined the victim. Consequently, we dismiss the third ground of appeal. The last ground is whether the charge was proved beyond reasonable doubt. We have found that the evidence of PW3 was not only consistent on how and where the appellant sodomised her at four different times at his place, but also was not contradicted or controverted by the appellant in any material particular. We have also found that the victim's evidence was corroborated by the evidence of PW4 who confirmed that the victim was indeed sodomised. We have in view of such evidence already held that the evidence of PW3 and PW4 sufficiently prove the prosecution case beyond reasonable doubt. In that respect, we find that the prosecution case was, on 12 the strength of that evidence, proved to the standard required by the taw. We, accordingly, dismiss the appellant's complaint in the fourth ground. In the event, we find the appeal is without merit. Consequently, we dismiss it in its entirety. DATED at DAR ES SALAAM this 29th day of July, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 31st day of July, 2024 in the presence of the appellant and Mr. Leonard Chalo, Senior State Attorney for the respondent/Republic by video conference, is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL