CRM

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: LILA. J.A.. RENTE. 3.A.. And MGONYA. J.A.^ CRIMINAL APPEAL NO. 536 OF 2020 GEOFREY ANTHONY @ SENGERI @ NYANCHAGE @ ANDREA...................................................... APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Kahvoza, J/l dated the 1st day of October, 2020 in Criminal Appeal No. 77 of 2020 JUDGMENT OF THE COURT 10th & 18th July, 2024 KENTE. J.A.: The appellant appeals against his conviction and sentence by the Serengeti District Court (the trial court) on one count of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Chapter 16 of the Revised Laws. Earlier on, upon first appeal, the appellant's conviction and sentence by the trial court were sustained by the High Court of Tanzania (sitting at Musoma) in Criminal Appeal No. 77 of 2020. The particulars alleged in support of the charged offence were along these lines: That, on 13th October, 2019 at Nyamatoke village in Serengeti District, Mara Region, the appellant had carnal knowledge of a girl-child i to whom we shall hereinafter simply refer as either the victim or PW1, against the order of nature. The appellant denied the charge saying that the evidence of the medical expert (PW4) who examined the victim and confirmed her being abused, did not establish that the victim was subjected to anal sex but rape and that, there was bad blood between him (appellant) and the Village Executive Officer (PW3) who testified against him. During cross - examination, the appellant put forth an alibi saying that, at the time which was contemporaneous with the commission of the alleged offence, he was playing football at Kemeli hamlet. However, at the end of the trial, the appellant was found guilty and convicted as charged. He was subsequently sentenced to the mandatory sentence of life imprisonment. As stated earlier, the appellant's appeal to the High Court was not successful, hence the present appeal. The evidence led in support of the prosecution case was briefly to the following effect. On the material day, the victim who was a standard three girl then aged nine years, met the appellant on the way as she was coming from the shop where she had gone to buy sugar. She recounted that, the appellant held her hand, accosted and draged her into the bush where he threatened her with a knife, ordering her to remain quiet before he went on undressing her and having carnal knowledge of her against 2 the order of nature. According to PW1, after the appellant had finished gratifying his sexual impulses, he took a flight to an unknown place. However, since the victim knew him well, when she arrived home, she informed her mother one Mwise Keriga (PW2) of the appellant's misdeeds. According to PW2, a cursory examination of the victim revealed faeces in her skirt and pants. PW2 then reported the incident to one Emmanuel Musoma @ Wambura Nyamatoke (PW3), a Village Executive Officer, who further referred the matter to the nearby Police Post. Meanwhile, PW3 sent out some members of the Peoples' Militia to look for the appellant who was said to have gone into hiding. The victim was referred to Nyamatoke Dispensary where she was examined by one Idd Hamis @ Mohamed (PW4), a Clinical Officer. According to PW4, an ocular examination of the victim revealed the presence of faeces discharge from the anus whose sphincter muscles were not intact. PW4 posted the above findings on the medical report which was admitted in evidence as exhibit PE2. No. WP.5665 Detective Corporal Sijali, is a Police Officer who was then based at Mugumu Serengeti. She was charged with investigation of this crime. According to her, the appellant was tracked to his hideout and apprehended at his aunt's home in Borenga Village on 19th October, 2019. A couple of days thereafter, he was arraigned in the District Court of Serengeti where he was charged with unnatural offence. When asked what he had done, the appellant denied the charges levelled against him. Without specifically telling the court the place where he was at the time of occurrence of the charged offence, he insisted that, all he was telling the court, was the truth and that, even the evidence of the medical expert who had examined the victim revealed that she had been raped and not sodomized. The appellant explained in cross-examination that, on 13th October, 2019 between 5.00 and 6.00 pm, he was at a football ground at Kemeli hamlet. He said he was playing football with his friends one of whom was Peter who was a goalkeeper. Asked why he did not call the said Peter to render credence to his seemingly belated defence of alibi, the appellant is on record as having told the trial court that, he did not see the importance of calling not only Peter but also any other person as witness. After hearing the parties, the learned trial magistrate proceeded with caution regarding the evidence of PW1, the only eyewitness and victim of the charged offence. However, the trial magistrate found it safe to rely on the victim's testimony because in his view, the said evidence had established that the offence was committed in broad daylight and the appellant and the victim were familiar to each other. According to the trial magistrate, this had significantly reduced the danger of honest mistake in the identification of the appellant. The learned trial magistrate also pointed out the fact that, the victim had named the appellant to her mother at the earliest opportunity immediately after she arrived home from the shop. With regard to the ingredients of the offence, relying on the evidence of PW4, the trial magistrate found as an established fact that indeed the victim had been subjected to anal intercourse. On the strength of the testimony of the prosecution witnesses, the trial magistrate was satisfied that, all in all, this evidence pointed to the appellant as the one who molested the victim on the material day. Apparently, the trial magistrate had no time for the appellant's belated defence of alibi as in his judgment, he did not capture his defence version and give it a deserving analysis. Aggrieved by his conviction and sentence by the trial court, the appellant appealed to the High Court (sitting at Musoma). After considering the grounds of appeal together with the evidence before the trial court, the learned Judge of the first appellate court decided that the issues requiring determination were the following: 5 1. Did the trial court err to convict the appellant or did the prosecution adduce enough evidence to establish the appellant's guilt? 2. Did the trial court consider the appellant's defence 3. Was the appellant given a right to be heard? 4. Was the sentence o f life imprisonment appropriate? Re-evaluating the evidence, the Judge found as a fact that, contrary to the version of the appellant that the testimony of the medical expert showed that the victim had been raped; the evidence led in support of the prosecution case supported the offence of unnatural offence. The Judge also found that, the victim was a credible witness and on that account, he had no reason to discredit her evidence. Elaborating, the learned Judge was in agreement with the trial magistrate that the victim knew the appellant very well before the occurrence of the charged offence as the two lived in the same village. He also took into account the fact that the offence was committed during the daytime and that as such, the victim could not have mistaken the appellant for any other person. With regard to the appellant's complaint that he was not accorded a hearing before the trial court, the learned Judge rejected that complaint holding that, it was baseless for the following reasons; one, that the appellant was present in court at all the time the prosecution witnesses testified; two, that he cross - examined them; and three, that after 6 closure of the prosecution case, and after the trial magistrate had ruled that a case had been made out for him to defend himself, he was informed of his rights in terms of section 231 of the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA) whereupon, he chose to give evidence on oath without indication that he would have witnesses to call. Based on the foregoing analysis, the learned Judge was satisfied that the appeal against the conviction had no merit. He accordingly went on sustaining the conviction and dismissing the appeal on that aspect. As to the sentence of life imprisonment which the appellant had challenged, the learned Judge of the first appellate court, on being satisfied that the victim of the appellant's sexual abuse was a child then aged nine years and, on the basis of section 154 (2) of the Penal Code, he was of the view that the said sentence was perfectly in order as it was the minimum sentence prescribed by law. All in all, the appellant's appeal to the High Court was eventually dismissed in its entirety. Before us, the appellant has raised five grounds of appeal which can be condensed into the following areas of complaint: One, that his conviction and sentence by the lower courts was based on weak and hearsay evidence which was not sufficient to prove the charge to the required standard; two, that he was denied the opportunity to call witnesses and three, that his defence evidence was not considered. 7 Other complaints raised by the appellant which are essentially derivative from his main complaints are that, the case against him was not proved beyond reasonable doubt and that his defence of alibi was not considered and accorded its deserving weight. We shall start with the complaint that the appellant was not given the opportunity to call witnesses who would testify in his favour. The argument advanced by the appellant in support of the second ground of appeal was that, he told the trial court that at the time of commission of the alleged offence, he was far from the scene of the crime playing football with his friends whom he named as Peter and Machota. The appellant complained that, despite mentioning his friends as his potential witnesses, he was denied the right to call them on the pretext that the said witnesses could not be called because of the threat of the global coronavirus pandemic. In response to this complaint, Mr. Tawabu Yahya Issa, learned State Attorney who was assisted by his fellow State Attorney Mr. Felix Yona Mshama representing the respondent/Republic, had little to say. He submitted, correctly so in our view that, the complaint that the appellant was denied the right to call witnesses was an afterthought which did not reflect the reality of what transpired in court. The learned State Attorney referred us to page 27 of the record of appeal to underscore the point 8 that, after the appellant was found to have a case to answer and duly informed of his rights under the law, he opted to give a sworn defence without indicating that he would have some witnesses to call or any exhibit to tender. With regard to the complaint by the appellant that his defence evidence was not considered, Mr. Issa appeared to waver in his approach. At first, while referring to page 38 of the record of appeal, the learned State Attorney submitted that the appellant's defence evidence was considered but when we probed him on the meaning of the term "consider" in the context of judicial decision making, he had to change course and subsequently submit that the defence evidence was not evaluated not only by the trial court but also by the first appellate court. The learned State Attorney then invited us to step into the shoes of the lower courts and evaluate the defence evidence but with a reminder that, the said evidence did not materially introduce any doubts in the prosecution case. Regarding the appellant's general complaint that the case against him was not proved to the required standard, Mr. Issa begun by conceding that indeed the testimony of PW2, PW3 and PW4 was not direct evidence. The gist of Mr. Issa's argument in this respect is that, the evidence of the above-mentioned three witnesses was corroborative in that, whereas PW2 9 received information of her daughter's molestation and having examined her and became suspicious not without reason, she referred her grievances to PW3 who was her immediate local leader, PW3 dutifully reported the incident to the police where the victim was referred to the nearby dispensary, for medical examination and subsequently confirmed by PW4 to have been sexually abused. The learned State Attorney submitted that, the three witnesses gave evidence which supported the testimony of the victim. As to the testimony of PW3 whom the appellant claimed to be his enemy, Mr. Issa relied on the case of Bashir John v. Republic, Criminal Appeal No. 486 of 2016 [2019] TCA (16 May, 2019) submitting that, the appellant's complaint came as an afterthought as he should have cross- examined PW3 regarding their alleged animosity. With regard to the defence of alibi which the appellant sought to rely on, the learned State Attorney urged us to disregard it saying that, the appellant ought to have given a notice that he intended to rely on the defence of alibi in terms of section 194 (4) of the CPA. On the further note, Mr. Issa invited us not to give weight to the said defence because of the appellant's unexplained failure to call as witnesses the persons he claimed to have been with at the time which was contemporaneous with 10 the commission of the offence. In conclusion, the learned State Attorney implored us to dismiss the appeal and uphold the conviction and sentence. We have considered the evidence, the record on which the appeal arises, the judgment appealed against and the arguments advanced by the parties. The main issues raised by this appeal are whether the learned Judge of the first appellate court was justified in holding that the appellant was accorded a hearing as required by law and whether, at the end of the day, the case against the appellant was proved beyond doubt as to warrant his conviction and sentence. We must state without hesitation that, indeed the complaint that the appellant was denied the right to call witnesses, is unfounded as it is not backed up by what is on the record. This is well illustrated by the record of appeal regarding what transpired in court on 28th January, 2020 when the appellant was found by the trial court with the case to answer and subsequently informed of his rights. For ease of reference, the record (at page 26 to 27 of the record of appeal) runs of follows: "DATE: 28/01/2020 CORAM: J.G. SEMKIWA - RAM PROS: D/CPL RENATUS ACC: PRESENT B/C: E. MUTELAN - RMA Through the evidence adduced in Court by five prosecution witnesses supported by exhibits PEI, and PE2 establish that the accused person has the case to answer the accused person will make his defence under section 231 o f the Criminal Procedure Act, (CAP. 20 R.E. 2002). SIGNED: J. G. SEMKIWA - RM 28/ 01/2020 Court: The accused person well addressed in terms o f section 231 o f the Criminal Procedure Act, (CAP. 20 R.E. 2002) and he asked to make a reply thereto. Accused person Reply: I will give evidence on oath. SIGNED: J. G. SEMKIWA - RM 28/ 01/2020 LIST OF DEFENCE WITNESSES NIL SIGNED: J. G. SEMKIWA - RM 28/ 01/2020 ORDER:- 1. Accused further Remand in Custody 2. Defence Hearing on 11/02/2020 12 SIGNED: J. G. SEMKIWA —RM 28/ 01/2020" The truth of the above then came out on 20th February, 2020 when, during cross-examination, the appellant was asked the place where he was, what was he doing, and with whom on the material day between 5.00 p.m. and 6.00 p.m. and, why did he not call the persons with whom he was as witnesses. The appellant's answers were typically in these words, (page 29 of the record of appeal), thus: - "On 13/10/2019 at about 5.00 pm - 6.00 p.m I was at a football ground at Kemeli, sub-village. - I was one of the eleven players. - Peter was a goalkeeper. - It was not important to call witnesses". This being the correct position, it follows necessarily that, indeed the notion propagated by the appellant that he was denied the right to call witnesses is both misleading and unfounded. Clearly, it cannot be disputed that, it is the appellant himself who opted not to call witnesses for the reason that he did not find it important to do so. It should as well be borne in mind that, the accused person, in any criminal trial cannot be compelled to call witnesses to testify in his favour. In the instant case, the record does not reveal that the appellanthadindicated that he would have had witnesses to call; but rather that, he haddecided not to call 13 witnesses because he believed they were not important to his case. That is the only impression we are left with and this factor renders the appellant's complaint baseless. We accordingly dismiss it. With regard to the general complaint that the case against the appellant was not proved to the required standard, it is certainly clear that the direct evidence which linked him to the offence was the testimony of the victim. She said, while on the way from the shop, she met the appellant whom she knew very well. That, he then dragged her into the bush where he went on having sex with her in a perverse way. PW1 said, after the appellant had finished, he took off to an unknown place. While under cross-examination by the appellant, PW1 told the trial court that at the time of commission of the offence, the appellant was armed with a knife and that he was wearing a red jacket. We note that, in her testimony, PW1 told the trial court that immediately after arriving home she informed her mother (PW2) the ordeal she had gone through and named the appellant as her assailant. This evidence was corroborated by PW2 and we further note that, the evidence of PW1 regarding her identification of the appellant as her ravisher, was not materially controverted in cross - examination. Moreover, the judgment of the first appellate court reveals that the learned Judge of the first appellate court took the elaborate procedure of 14 looking for the features by which PW1 identified the appellant. The said features include, but are not limited to, the clothes the appellant was wearing, the circumstances in which the victim observed the appellant and the state of the light. Another feature in the evidence of PW1 which helps to lend credence to her testimony is the fact that, she named the appellant as her ravisher to her mother immediately after occurrence of the sexual abuse incident. In the case of Marwa Wangiti Mwita and Another v. Republic., Criminal Appeal No. 6 of 1995 we guided that: "The ability o f a witness to name a suspect at the earliest opportunity, is an all important assurance o f his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry". As to the belated explanation by the appellant that, at the time of commission of the alleged offence he was at Kemeli village playing football, it goes without saying that, the explanation amounts to the defence of alibi for which he was required to give a notice in terms of section 194 (4) of the CPA or else, in terms of sub-section (5) to furnish the prosecution with the particulars of the place where he claimed to have been at the time of the offence with which he was charged, together with the names and addresses of any witnesses whom he intended to call for the purposes of substantiating his alibi. 15 While we are mindful that the accused person who puts forward the defence of alibi, does not thereby assume the duty to prove the truth of that defence as the burden of proof in criminal cases is always cast on the prosecution to prove its case beyond reasonable doubt, we are of the respectful opinion that, where, as in this case, the accused person is brought into a picture by the evidence of the prosecution placing him at the place of the commission of the offence, he is expected to give an explanation that, could be reasonably true to introduce doubt in the prosecution case. In such circumstances, the accused, must give evidence tending to show that by reason of his presence at a different place or area at a particular time, he was not or unlikely to have been at the place the crime took place at the time of its alleged commission. In the absence of such evidence as it happened in the case now under review, the evidence of the prosecution placing the accused at the scene of the crime will remain steadly uncontroverted and, in terms of our decisions in the case of Charles Samson v. Republic [1990] TLR 39 and Leonard Mwanashoka v. Republic, Criminal Appeal No. 226 of 2014 (unreported), having considered the unsupported defence of alibi, the court may not accord any weight to it. Coming to the instant case, upon a holistic appraisal of the evidence that was before the trial court, we conclude as did the learned Judge of 16 the first appellate court that, the appellant committed the offence with which he stood charged. The sentence of life imprisonment meted out on him was the minimum sentence prescribed by law and, therefore the position taken by the learned Judge is consistent with the facts of the case and the law. We have no reason to interfere with it. The net result of what we have said is that, we find no merit in this appeal which we accordingly dismiss in its entirety. DATED at MUSOMA this 18th day of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 18th day of July, 2024 in the presence of the Appellants who appeared in person and Mr. Isihaka Ibrahim, learned State Attorney for the Respondent/Republic via video conference is hereby certified as a true copy of the original. \t\ J. J. KAMALA IS]DEPUTY REGISTRAR /£/ COURT OF APPEAL