Gusi vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA CRIMINAL APPEAL NO. 9617 OF 2024 (Arising from Criminal Case 153 of2022 District Court of Ngara) GUSI JOSEPH....................... ............. ............ ................... ..APPELLANT

VERSUS REPUBLIC............ ................ ....RESPONDENT

JUDGMENT 22nd August and 13th September, 2024 BANZI, J.: On 8th November, 2022, the appellant was arraigned before the District Court of Ngara (the trial court) charged with unnatural offence contrary to section 154 (1) (a) (2) of the Penal Code [Cap. 16 R.E. 2022] (the Penal Code). It was alleged in the charge that, on 6th November, 2022 at Ruzenze village, within Ngara District in Kagera Region, the appellant had carnal' knowledge of the victim (name withheld to protect his identity) a boy of 13 years against the order of nature. The appellant denied the charge and, in an attempt, to prove the case against him, the prosecution side called three witnesses and produced one exhibit. In the main, the prosecution evidence reveals that, on the date of Page 1 of 18 incident, the victim (PW1) was with his friend (PW2) and while on the way from church, they met with the appellant who requested them to go to his home. They acted positively to his request hence, joined him at his home. Upon arrival, the appellant told them that, he wants to give them a job of grazing animals. They stayed there until night whereby, after dinner, they all slept in the sitting room. The appellant slept between PW1 and PW2. While asleep, the appellant seduced PW2 to have sex with him but the latter refused. It was at that point, when he turned to PW1 who was in a deep sleep. According to PW1, while asleep,

he felt something entering into his anus. Having awaken, he found the appellant's male organ penetrating into his anus. He tried to resist, but the appellant covered his mouth to prevent , him from shouting and gave him 700 so as to continue with his evil mission. • They slept until morning when the appellant told them to go and hide at Murgwanza area. Later, while in the hidden place, the appellant's mother appeared and told them to go home. They went home and the victim informed his mother of the ordeal befallen him. The incidence was reported to the Police. Thereafter, the victim was taken to Nyamiaga hospital where he was examined by PW3, a medical doctor. Having examined him, he found a loose, stool and fresh bruises in the victim's anus which was caused by force Page 2 of 13 penetration into the anus. He gave him pain killers and antibiotics. After that, he filled in the PF3 which was admitted as Exhibit Pl. In his defence, the appellant denied to have committed the offence contending that on 7th November, 2022 at 0700 hours while at saloon, one person appeared asking him if he had seen his children. He denied to have seen them. That person called the Village Executive Officer who appeared asking him if he took those children. He still denied. He was put under restraint together with his wife. He was later taken to police station then charged before the court. He

contended that, there was no evidence showing that those children were sodomised as there was no sperms found in their private parts. At the end of the trial, the trial court was satisfied that, the case against the appellant was proved beyond reasonable doubt and it hence, it convicted and sentenced him to thirty years imprisonment. Aggrieved with that' decision, the appellant, in his two self-crafted petitions of appeal, presented thirteen grounds which in the light of submissions during the hearing, can be reduced into the following complaints; one, non-compliance of section 192 of the Criminal Procedure Act; two, the age of the victim was not proved; three, the evidence of PW1 and PW2 was recorded in contravention Page 3 of 18 with section 127(2) of the Evidence Act and four, the case was not proved beyond reasonable doubt. At the hearing, the appellant appeared in person unrepresented whereas the respondent, Republic was represented by Mr. Erick Mabagala, learned State Attorney. When he was invited to explain his grounds of appeal, the appellant adopted them to form part of his submission. As a result, he prayed to be released from prison. In reply, Mr. Mabagala supported the conviction contending that, the appeal has no merit. Starting with non-compliance with section 192 of the Criminal Procedure Act [Cap. 20 R.E. 2022] (the CPA), Mr. Mabagala submitted that, the

preliminary hearing was conducted in compliance with the law as reflected at page 2 of the proceedings. Responding to the issue Of proof of age, the learned State Attorney submitted that, although the age of the victim was not proved, in his view, proof of age in unnatural offences is not among the ingredients of offence but rather, it is necessary in sentencing. He claimed that, since the victim's age was not proved to be below 18 years, the sentence meted against the appellant was proper because it covers the victims above 18 years. Page 4 of18 In respect of the complaint that, section 127 (2) of the Evidence Act [Cap. 6 R.E. 2022] (the Evidence Act) was not complied with, he argued that, the proceedings at page 8 reveal that, before testifying, the victim promised to tell the truth as it was emphasised in the case of Francis Eliud @Mnyamwezi vs Republic (Criminal Appeal No. 308 of 2022) [2024] TZCA 666 TanzLII. Moreover, relying on the case of George Jonas Lesilwa vs Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269, he submitted that, even where the evidence of the child is taken in contravention of the law, that evidence has to be considered so long as the accused person was not prejudiced. Reverting to the main complaint that, the case was not proved beyond ’ reasonable doubt, Mr. Mabagala began with the issue of identification and submitted that, PW2 explained

about the source of light though he did not state its intensity. Apart from that, the appellant was not a stranger to the victim as he was their neighbour and on the date of incident, he stayed with them for a long time as he had promised to find a job for them in Kahama. They also slept with the appellant in the saloon. Thus, failure to disclose intensity of light, does not affect the recognition of the appellant considering that, each case ought to be decided basing on its own circumstances. He insisted that there was no mistaken identity. Page 5 of 18 It was further his submission that, the offence of unnatural offence is proved by penetration of male sex organ to the victim's anus as it was explained in the cases of Joel Ngailo vs Republic (Criminal Appeal No. 344 of 2017) [2019] TZCA 314 and Halfan Rajabu Mohamed vs Republic (Criminal Appeal No. 281 of 2020) [2023] TZCA 178. In his evidence, the victim explained how he woke up in the middle of the night finding the appellant inserted his male organ into his anus. Though the victim tried to stop him, the appellant gave him TZS 700. He added that, the appellant did not cross examine PW1 at all which implies that, he accepted the truthfulness of the evidence of the victim. He cemented his submission with the cases of Nyerere Nyague vs Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 and Francis Eliud @ Mnyamwezi vs

Republic (supra). Moreover, he contended that, the evidence of the victim was corroborated by the medical doctor (PW3) who examined him and found him with faeces and fresh bruises on his anus. Also, the PF3 filled in by PW3 proved the evidence of penetration. He added that, PW3 introduced himself as a medical doctor and thus, the complaint about PW3's failure to explain his expertism is an afterthought considering that, the appellant did not cross- examine PW3 on that aspect. Furthermore, the incident was witnessed by PW2 who slept in the same room with the victim. Therefore, the evidence of Page 6 of 18 PW1 and PW2 proved that, it was the appellant who sodomised the victim. Therefore, he prayed the appeal to be dismissed by upholding the conviction of the appellant. In rejoinder, the appellant urged the court to consider his grounds and release him so that he can go home to take care of his siblings. Having examined the evidence on record, the grounds of appeal together with the submissions of both sides, the issue for determination is whether the case against the appellant was proved beyond reasonable doubt. Before determining the merit or otherwise of the appeal, it should be noted that, in the first appeal, the first appellate court is enjoined to re­ evaluate the evidence of the trial court and scrutinise it and where possible come out with its own findings. This principle

has been stated in numerous cases including the case of Edson Simon Mwombeki vs Republic (Criminal Appeal No. 94 of 2016) [2016] TZCA 266 TanzLII where it was stated that: "The first appellate court has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted arrive at its own conclusion of facts." Page 7 of 18 Starting with the first complaint concerning non-compliance of section 192 of the CPA, although the appellant did not elaborate how the provisions of the said section were contravened, a close look at the trial court proceedings reveals that, the procedure of conducting the preliminary hearing was slightly flawed. Normally, after recording the facts narrated by the prosecutor and before drawing the memorandum of undisputed facts, the trial magistrate is required to invite the accused person to state the facts which he does not dispute. After recording the statement of the accused person concerning undisputed matters, the trial magistrate proceeds to draw memorandum of undisputed facts which must be read over and explained to accused person before he is invited to append his signature. In our case, the trial magistrate skipped to record the statement of the accused person in respect of matters which he did not dispute. That was an irregularity but, in my view, the same was curable in terms of

section 388 of the CPA considering that, in the memorandum of agreed facts, the appellant just agreed his name, address, his arrest and being taken to court where he denied the charge. However, the trial court did not convict him basing on any fact in the memorandum of agreed facts. Besides, it is settled law that, a trial of a case cannot be vitiated by failure to conduct a preliminary hearing or for conducting it improperly. See the case of Director of Public Page 8 of 18 Prosecutions vs Lengai Ole Sabaya and Others (Criminal Appeal No. 231 of 2022) [2023] TZCA 17853 TanzLII. Thus, the first complaint lacks merit. Returning to the complaint concerning the evidence of PW1 and PW2 was received contrary to section 127(2) of the Evidence Act, the appellant contended that, voire diretest was improperly conducted. It is important to. underscore that, following the amendment of the law in 2016, voire diretest is no longer a requirement to conduct under section 127(2) of the Evidence Act before receiving the evidence of a child of tender age. Conversely, a promise to tell the truth to the court and not to tell any lies is the only prerequisite to be met by of a child of tender age before giving his/her evidence without oath or affirmation. In our case, it is apparent on the record that, according to the citation of age by the trial magistrate before PW1 and PW2 gave their evidence,

both witnesses were children of tender age, that is, below 14 years. It is also on record that, both witnesses promised to the only truth before they were allowed to give evidence without oath. In that regard, the evidence of PW1 and PW2 was taken in conformity with the dictates of the law. Besides, as stated in the cited cases of Francis Eliud @ Mnyamwezi vs Republic and Page 9 of 18 George Jonas Lesilwa vs Republic, with recent introduction of section 127 (7) of the Evidence Act as amended by the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of 2023, even if the evidence of PW1 and PW2 would have been recorded in total contravention of section 127 (2) of the Evidence Act, yet still, their evidence would not be discarded. In that case, this complaint has no merit and it is hereby dismissed. I now turn to the main complaint regarding the case was not proved beyond reasonable doubt. It is settled law that, in unnatural offences, the- main ingredient to be proved is penetration as it was stated in the case of Joel Ngailo vs Republic (supra) that: "Penetration, however slight into the anus, with or without consent; is an essential ingredient of unnatural offence under section 154 (1) (a) of the Pena! Code. Proof of penetration is the main ingredient that makes this offence complete." Now, the next issue is whether the offence of unnatural offence was proved. This being

the sexual offence, it is settled law that, the best evidence comes from the victim. (See the case of Selemeni Makumba vs Republic [2006] TLR 370). According to the evidence of the victim, on the fateful day while coming from church together with his friend, PW2, they met the Page 10 of 18 appellant who requested them to come to his house. Upon arriving there, the appellant told them that, he wanted to give them work of grazing animals. The duo fell into the trap of the appellant and decided to spend the night at his place. PW1 further stated that, the appellant slept between him and PW2. According to PW1, while asleep, he felt something entering into his anus. Having awaken, he found the appellants male organ penetrating into his anus. He tried to prevent him, but the appellant covered his mouth to silence him and gave him TZS 700 so as to continue with his evil mission. His evidence was supported by the evidence of PW2 who his stubbornness saved him from the appellant's evil act because according to him, at first,. the appellant asked him to have sex with him but he refused and it was at that point, when he turned to sodomise PW1 who was in a deep sleep. PW2 . eye-witnessed the appellant penetrating the victim. Moreover, the evidence of PW3 and Exhibit Pl proves that, the victim was penetrated in the anus. PW3 who examined the victim found him with fresh bruises and loose

stool on his anus which is the evidence of: penetration. As stated in the case of Joel Ngailo vs Republic (supra), penetration however slight into the anus, is sufficient to make unnatural offence complete. From the evidence on record, it is apparent that, the evidence of PW1 and PW2 was sufficient to prove penetration. Yet still, the Page 11 of 18 evidence of PW1 and PW2 concerning penetration was corroborated by PW3 and Exhibit Pl. Thus, the complaint by the appellant that, his conviction was based on evidence of medical expert who did not explain his expertism is unfounded, considering that, PW3 in his testimony introduced himself as medical doctor with ten years of experience. However, the appellant failed to cross-examine PW3 on that aspect which as a matter of law, connotes that, he accepted the truthfulness of PW3's testimony in respect of his expertism and thus, as rightly submitted by Mr. Mabagala, challenging it at1 this stage is nothing but an afterthought. The next question to be answered is whether it was the appellant who sodomised the victim. In his grounds, the appellant complained that, the. evidence of identification was not watertight because intensity of light was not disclosed and he was not described in details. On his side, Mr. Mabagala ’ contended that, PW2 explained about source of light though he did not state' its intensity. Back to the evidence of

PW1, it is undisputed that, he was silent on whether in the room they slept there was any light that enabled him to recognise the appellant. However, as submitted by Mr. Mabagala, PW2 at page 10 of the proceedings explained that, at the room where they slept, there was electricity light. l am very much aware of the principle of law that even in recognition cases where such evidence may be more reliable thar Page 12 of 18 identification of a stranger, clear evidence of light and its intensity is of paramount importance. Nevertheless, as stated by learned State Attorney, each case should be decided by its own circumstances. In this case, looking closely at the evidence of PW1 and PW2, it is undoubted that, there was no possibility of mistaken identity due to the following reasons; one, the appellant was not a stranger to PW1 and PW2 as they knew him before the date of incident; two, in the room where they slept, they were just three persons and the appellant slept between PW and PW2; three, they spent the whole night with him in the same room; four, there was no any other person who entered into that room after the trio went to sleep; five, the appellant began to seduce PW2 who after refusing, he turned to the victim and succeeded to sodomise him; six, in the morning, he asked them to go and hide at Mrugwanza area the same place where PW1 and PW2 were found and seven, there was

electricity light in the said room. Under the prevailed circumstances, even if PW2 did not explain intensity of light, there was no possibility of mistaken identity. Besides, since the appellant was not a stranger to PW1 and PW2, there was no need for the two witnesses to describe him compared to the situation where he would be a stranger. Thus, the complaint about not being identified lacks merit. Page 13 of 18 Without prejudice to the foregoing, one might notice contradiction between the evidence of PW1 and PW2 concerning how they met with the appellant and the place where the offence was committed. While PW1 said that, they met with the appellant in the morning and on the way from church, PW2 said, they met him in the evening. Likewise, while PW1 claimed that, they slept in the sitting room, PW2 stated that, it was at saloon room. I am aware about the settled principle of law that, in evaluation of evidence,- where the court finds that there are inconsistencies and contradictions, it has to decide whether they are only minor, or whether they go to the root of the matter. See the cases of Mohamed Said Matula vs Republic [1995] TLR 3 (CA) and Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 TanzLII. In the instant case, the fact in issue is the appellant to have inserted his male organ into the victim's anus. This act was

committed by the appellant while he was sleeping between PW1 and PW2. Whether it was in the saloon or sitting room, in my view, is not relevant to the fact in issue considering that, the incident was eye witnessed by PW2 who if not for his resistance, he would have been another victim. Equally, how PW1 and PW2 met the appellant is also irrelevant to the fact in issue considering that, at- the end of the day, the duo slept with the appellant in the same room. In; Page 14 of 18 that regard, it is the considered View of this court that, the contradictions are minor and they do not go to the root of the matter. Likewise, the complaint of the appellant about failure to call material witness such as the ; victim's parent, village executive officer and victim's friends namely Corode and Akiza is unfounded. As explained above, the victim was sodomised in the presence of PW2 and thus, since VEO, victim's parents, Corode and Akiza did not witness the incident, the only material witnesses were PW1 and PW2. Therefore, from the evidence of PW1, PW2 and PW3 together with Exhibit Pl, in my view, the prosecution has managed to prove beyond reasonable . doubt that/ the victim was sodomised on the alleged date of incident and it was the appellant who perpetrated the alleged offence. Hence, the complaint about the case not to be proved beyond reasonable doubt is dismissed for. being

unmerited. Reverting to the complaint regarding proof of age, it is undisputed that, apart from citation by the trial magistrate before PW1 giving his evidence, there is nothing in the testimony of PW1 which discloses his age. It is settled law that, the citation by the magistrate regarding the age of a witness before giving evidence is not evidence of that person's age. This was stated in the case of Andrea Francis vs Republic, Criminal Appeal No. 173 of 2014 CAT (unreported). Nevertheless, as already alluded above, the main ingredient Page 15 of 18 of unnatural offence is penetration of male organ into victim's anus. Thus, as rightly submitted by Mr. Ma bagala, proof of age of the victim is not the main ingredient of unnatural offence but it becomes necessary for purpose of arriving into proper sentence against the offender. Generally, the minimum punishment for unnatural offence according to section 154 (1) of the Penal Code, is thirty years imprisonment. But as provided under section 154 (2) of the Penal Code, the mandatory penalty for offender who ■ committed unnatural offence to a child under the age of eighteen years is life imprisonment. In that regard, considering that there was no proof that the victim was below eighteen years, upon being convicted, the sentence of 30 years meted against the appellant is, in my view, appropriate. Before I pen off, although parties did

not submit on it, I find it necessary to discuss ground number five in the petition of appeal in respect of failure by the trial magistrate to evaluate and consider the appellant's defence. In her judgment, after a long journey of analysing the evidence of the prosecution, the trial magistrate summarised the defence evidence but never analysed or considered it at all. In that regard, is undoubted that, the trial magistrate did not consider the defence evidence. However, this being the first appeal, it is in a form of re-hearing and thus, the first appellate court can enter into the shoes of the trial court and analyse the defence evidence. Page 16 of 18 In his defence, the appellant just explained on how he was found in is saloon in the morning of 7th November, 2022 by a certain person who was looking for his children. After telling him that, he did not see them, that person called the village executive officer who upon arrival and asking him on the whereabouts of PWl and PW2, they arrested him and his wife. After being found by the appellant's mother at Mrugwanza area, PWl and PW2 were brought to him and they said about the appellant's desire to take them to, Kahama for working. He further claimed that, the militiaman took him to the police station where other people wanted to settle the matter at the village level but the victim's father refused. In a nutshell, that was the

evidence of the defence side. It is apparent from his defence that, the appellant apart from explaining how he was found in his saloon on the following morning, he said nothing about his whereabout on the alleged date of incident. Although the appellant had no duty of proving his innocence, in serious allegations like the one he faced, he was expected to defend himself even by explaining his whereabouts on the night of incident. Worse enough, according to his defence, the victim and PW2 were found at Mrugwanza area, the same place where PWl and PW2 were told by the appellant to go and hide there. Apart from that, if he did not spend the night with the victim and PW2 in his place, Page 17 of IS he was expected to call his wife whose evidence would have casted doubt on prosecution case. In that regard, basing on credible and reliable evidence of PW1 and PW2, it is the finding of this court that, the defence evidence did not raise any doubt on prosecution case. Having said so, I am satisfied that the case against the appellant was proved beyond reasonable doubt and hence, he was properly convicted. Consequently, this appeal is devoid of merit and is hereby dismissed. I. K. BANZI

JUDGE 13/09/2024 Delivered this 13th day of September, 2024 in the presence of Mr. Erick Mabagala, learned State Attorney for the respondent, the appellant in person and Ms. Mwashabani Bundala B/C. Right of appeal duly explained. I. K. BANZI

JUDGE 13/09/2024 Page 18 of 18