hamisi mtima athumani vs republic 2023 tzhc 18839 5 june 2023

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY)

AT MTWARA CRIMINAL APPEAL NO. 57 OF 2022 (Originating from Criminal Case No. 40 of 2022; District Court of Tandahimba at Tandahimba) HAMISI MTIMA ATHUMANI ........................... APPELLANT THE REPUBLIC.................... ............. ............RESPONDENT

JUDGMENT 03/05 & 5/6/2023 LA LTAl KA, J.,’ The appellant herein HAMISI MTIMA ATHUMANI was arraigned in the District Cour of Tandahimba at Tandahimba charged with Unnatural Offence c/s 154(l)(a) of the Penal Code. Cap.. 16 RE 2019. It was the prosecution's story that the appellant the offence of on the...day of...the appellant had carnal knowledge against the call of nature with XWZ, a girlchild aged 8. When the charge with the above particulars was read over to the accused person, he pleaded not guilty necessitating a full trial. To prove the allegations levelled against the accused, the prosecution paraded a total of Page 1 of 13 five witnesses. On closure of both the prosecution and the defence cases, the learned magistrate was convinced that the prosecution had proved their case at the required standard. Consequently, he convicted the appellant as charged and sentenced him to serve a 30 years'jail term. The appellant is strongly dissatisfied. He has appealed to this court on five grounds as paraphrased hereunder: j. That the trial Court erred in point of law ofby: admitting Exhibit Pl (PF3) as evidence un procedurally in contravention of the section 210 (3) of the Criminal procedure Act cap 20R.E 2019, 2. That the trial Court erred in law and fact by convicting and sentence the appellant (30) years imprisonment after holding the evidence of Pw7 while he never sworn nor affirm during adduced his evidence.

3. That the trial Court erred in Law and fact by convicting and sentencing the appellant while the prosecution case failed to prove their charge beyond any shadow of doubts. Against the appellant.

4. That the trial Magistrate erred in Law and fact by con victing and sentencing the appellant to (30) years imprisonment since the age as fact ofthe alleged victim was not proved beyond reasonable doubts which sustains (30) years imprisonment, 5. That the trial Magistrate erred in Law and fact by non-complying with requirements the section 235(1) and section 312(2) of the Criminal procedure Act (cap,20 R.E 2002) 6. That the trial Magistrate Court erred in Law fact by convicting and sentencing the appellant while the investigator ofthe case failed to conduct identification parage against the appellant after arrested. When the appeal was called on for hearing on the 03/05/2023 the appellant appeared in person, unrepresented. The respondent, on the other hand, appeared through Mr. Mekhior Hurubano, learned State Attorney. The appellant, being a layperson, had nothing substantial to add to the explanation given in his petition of appeal. He prayed that the learned counsel be allowed to submit first, and he would come in for a rejoinder. Page 2 of 13 Mr. Hurubano stated that he objected the appeal and was in support of both conviction and the sentence. He proceeded to argue against the first ground of appeal. The learned State Attorney stated that the appellant's complaint was that his rights provided under the cited section were not observed, and exhibit Pl was not read to him..

However, argued Mr. Hurubano, the records in the proceedings (p 14) indicated that the exhibit had been read out in court, and the appellant had heard it. The learned State Attorney admitted that the exhibit in question, identified as PF3, was not tendered by the doctor. The appellant was asked if he needed the doctor, and he replied in the negative. Mr. Hurubano argued further that regarding the contravention of section 210, the proceedings revealed that the appellant’s evidence was not read over to him as required by law. Nonetheless, reasoned the learned counsel, such an omission did not affect the decision reached. The learned counsel prayed that the ground of appeal be dismissed for lack of merit. Moving on to the second ground of appeal, Mr. Hurubano was rather brief. He stated that according to the proceedings, PW7 had not taken an oath. However, he believed that this was a typing error. Therefore, he requested the court to consult the original records in order to ascertain the truth. The court responded by confirming that the original handwritten record indicated that the witness had indeed taken an oath, specifically through affirmation. Following this information, Mr. Hurubano prayed that the second ground of appeal be considered without merit. On the 3rd ground Hr. Hurubano stated that he needed to point out that the appellant was charged with a sexual offence.

According to Page 3 of 13 section 127(6) of the Evidence Act Cap 6 RE 2019, averred the learned counsel, evidence of a child of tender age is independent evidence. In the instant matter, PWl (the victim) was a child. A standard IV public. Before taking her evidence, Mr. Hurubano asserted, the court had tested her credibility. The witness explained that on the fateful day she was playing with fellow kids. The appellant appeared and saw them. He asked them to show him the way to M Slum ba Village, Other children refused except the victim who agreed to go along to show him the way. Mr. Hurubano stated that according to the lower court proceedings, PWl explained that on their way, the appellant told her (PWl) that he had hidden honey in a bush. He told her to go with her to the bush for that honey. The child agreed and upon arrival in the bush, the appellant attacked her, strangled, and undressed her took his penis and inserted it in the anus of the child. The learned State Attorney quickly added that the evidence of PWl was corroborated by that of PW3 (medical doctor) who after conducting examination, he discovered bruises in the anus proving that PWl was sodomized. In that regard, Mr. Hurubano averred, he was fortified that the offence of unnatural offence was proved beyond reasonable doubt. Moving on to the fourth ground of appeal, Mr. Hurubano stated that, in summary, the

accused had been charged with the offense of unnatural offense under section 154(l)(a), which prohibits any act of unnatural offense committed against another person. He acknowledged that the age of the child involved had not been proven, but he argued that it was not a legal Page 4 of 13 requirement. Therefore, he requested the court to dismiss the fourth ground of appeal. On the fifth ground, Mr. Hurubano mentioned that according to section 235(1), the magistrate is required to consider and analyze the evidence presented by both parties. He pointed out that on page 9 of the Judgment of the trial court, the learned magistrate had thoroughly analyzed the evidence and provided reasons for convicting the appellant. Furthermore, Mr. Hurubano highlighted the appellant's claim that section 312(2) of the Criminal Procedure Act (CPA) had been violated. He explained that the said section mandates the magistrate to specify the exact section of law upon which the conviction is based. In this case, on page 9, the learned magistrate explicitly stated that the accused was convicted under section 154(l)(a) of the Penal Code. Consequently, Mr. Hurubano requested the court to disregard the ground of appeal raised by the appellant in relation to section 312(2) of the CPA. On the The 6th ground: the appellant's complain is that the trial court erred in convicting him without any identification

parade, The purpose of the same is to enable the victim to identify the suspect. Identification parade is one of the three ways used to identify an accused. Others are doc identification and pre-identification. As per page 8 of the judgement, the learned: magistrate stated on identification of the accused. He explained that the incident took place at 4:00 in the evening. There was sufficient sunlight to enable the victim to identify the accused. Moreover, the learned magistrate considered the time spent by the duo including the distance walked. Page 5 of 13 The evidence is to the effect that the accused found the victim playing with fellow children in the playground. He took the victim, and they went through a place where the accused told the victim to wait for him to pick up tobacco. He waited for him, and they started walking again. They went to the exact place where the incident happened. Having considered such time and distance covered, the learned magistrate was convinced that the accused was properly identified. We are fortified that the ground has no merit. The learned State Attorney prayed that the appeal be dismissed in its entirety. I have dispassionately considered the grounds of appeal and the rival submissions. The following issues have emerged for the court to determine: (i) Whether PW7 testified before the trial court without taking an oath or affirmation as

required by section 198(1) of the Criminal Procedure Act [Cap.20 R.E. 2022] (the CPA). Indeed, section 198(8) of the CPA requires every witness in a criminal matter to take an oath or affirmation as provided by the Oaths and Statutory Declarations Act (supra). To better understand the position of the law, it is important to reproduce what the law provides as follows: "Every witness in a criminal cause or matter shall subject to the provisions of any other written iaw to the contrary, be examined upon oath or affirmation in accordance with the provisions of the Oaths and Statutory Declarations Act, ■' Upon reviewing the records of the trial court, it has been realized that the typed and certified proceedings do not feature the particulars of PW7. As a result, the appellant lodged a complaint under the second ground of Page 6 of 13 appeal, arguing that the trial court convicted and sentenced him based on the evidence of PW7, who did not take an oath or affirmation. It was found, upon examining the handwritten proceedings, that the particulars of PW7 were indeed taken, including his affirmation. For the interest of justice, the learned trial magistrate wrote the following: "PW7: G.7051 DC Cpl Saihina Policeman, Moslem affirmed and stated as follows. " The discrepancy in the typed proceedings appears to be a typographical error, which has been resolved by referring to the

handwritten record available in the trial court's file. However, it is advisable for magistrates in our jurisdiction to proofread their proceedings and judgments before they are dispatched to higher courts. This serves as a reminder of the advice provided by the American Judge, Judge Mark Painter in his book, 40 Rules for the Art of Legal Writing, The Legal Writer 4th Edition, which emphasizes the importance of editing and proofreading to avoid errors or mistakes that could lead to unreasonable complaints. Therefore, it is established that PW7 did indeed affirm, and thus the second ground of appeal is dismissed. (ii) Whether exhibit Pl (PF3 of the victim) was properly admitted. The appellant's first complaint is that the trial court erred in admitting exhibit Pl (PF3) as evidence in contravention of section 210(3) of the Criminal Procedure Act CAP 20 R.E.

2019. The appellant argues that the trial Page 7 of 13 court failed to address his right under section 210(3) before admitting Exhibit Pl, To address this issue, it is imperative to review the records of the trial court to determine who tendered the exhibit, what the witness did before its tendering, how it was admitted in court, and what actions were taken by the trial court and the witness who tendered it after its admission. At page 14 of the typed proceedings, PW7 testified as follows: "In the course of my investigation, I gathered the statements of two witnesses plus the accusedperson. I recorded the plain statement of PW4 and PW5. Also, I gathered PF3 indorsed by PW4 from him (PW4). This is a PF31 took from PW4. I pray to tender it if there is no objection from the opposing party. " The accused responded, "I have no objection," and the court directed the accused in accordance with 5.240(3) of the CPA 1985. The accused replied, 'T don’t opt to call PW4 for the purpose of cross-examination." The court then received and read over the exhibit as exhibit Pl. Now, it is necessary to understand who may tender an exhibit and the proper procedure for admitting exhibits in our courts. According to our Exhibits Management Guidelines of September 2020, pp 3 and 4, persons who may tender a real or documentary exhibit include the maker or author of the document, the custodian of an

exhibit, and other individuals. Additionally, at page 4, clause 2.4.2 of the Guidelines specifies the conditions that must be met before tendering an exhibit: ’’Before admitting an exhibit, the court must observe the legal requirements for its admissibility. The witness must point out specific identification marks, brand or trade name, or other peculiar features in relation to the exhibit to be tendered. ” Page 8 of 13 Moreover, it is essential to clear a documentary Or real exhibit. The Court of Appeal of Tanzania has repeatedly emphasized that any exhibit admitted must be cleared by the witness tendering it. This principle was upheld in the case OF ROBINSON MWANJISI AND 3 OTHERS VS. REPUBLIC [2003] TLR 218:"...Whenever it is intended to introduce any document in evidence, it should first be cleared for admission..." In the present case, several issues arise. Firstly, exhibit Pl was tendered by an incompetent person since the maker or author, who testified as PW3 (Dr. Leopard Francis Mkayamba), did not tender it and no reason was provided for his failure to do so. Secondly, the evidence of PW7 is insufficient as he did not testify whether he was the custodian of exhibit Pl or how exhibit Pl came into his possession. Thirdly, exhibit Pl was not cleared by PW7 before its admission by the trial court. Lastly, exhibit Pl was not read out loudly in court by PW7, as required. Based

on these observations, exhibit Pl is expunged from the record due to procedural irregularities in its tendering and admission. It is important to assess whether the remaining evidence is sufficient to sustain a conviction of unnatural offense. (Hi) Whether the age of the victim was proved as required by the /atyand, if so, what: are the consequences of convicting and sentencing the appellant without proving the age of the victim. This issue arises from the appellant's complaint on the fourth ground of appeal. It is settled law that evidence regarding the proof of age may be given by the victim, a relative, a parent, a medical practitioner, or, if available, through the production of a birth certificate. This was established Page 9 of 13 in the cases of ISAYA RENATUS VS. REPUBLIC, CRIMINAL APPEAL No. 542 of 2015, and ISSA REJI MARITA VS. REPUBLIC, CRIMINAL APPEAL NO. 337 of 2020 [2021] TZCA 404 (24 August 2021) Tanzlii. It is worth noting that even the charge sheet in this case does not feature the age of the victim. Furthermore, no witness testified regarding the age of the victim. However, the victim mentioned in his particulars that he was eight years old. It could be argued that if the charge had: covered the age of the victim, the position stated in the case of ISAYA RENATUS VS. REPUBLIC (supra) could apply. It is important to include the age on the charge sheet for

several reasons: firstly, to inform the appellant of the potential sentence he could face if found guilty and convicted, and secondly, to assist the accused in preparing a defense. As per the charging section and the particulars of the offense, it is evident that the charge did not include the age of the victim, presumably because it was known that the victim was above 18 years old. I must emphasize the charge against the appellant is defective and cannot be cured under section 388 of the Criminal Procedure Act because it lacks the necessary particulars. Drafting a charge without including the age of the victim can lead to an inappropriate punishment. In this case, the charge misled the trial court to impose an incorrect sentence without determining the age of the victim. Therefore, the appellant's complaint on this ground has merit. (iv) Whether there was a need for conducting an identification parade. Page 10 of 13 The appellant argued in his sixth ground of appeal that the trial court convicted and sentenced him without conducting an identification parade after his arrest. The Court of Appeal, in the case of ANNES ALLEN VS. THE DIRECTOR OF PUBLIC PROSECUTIONS [2010] T.L.R.,47, established the rule that dock identification of an accused person by a witness who is a stranger to the accused has value only if an identification parade was conducted and the witness successfully

identified the accused before giving evidence at the trial. Similarly, in the case of ABDALLAH JUMA SASHA VS. REPUBLIC [2011] T.L.R. 10 it was stated that the failure to conduct an identification parade after the appellant’s arrest constituted a fatal irregularity in relation to the prosecution's evidence of identification. In the present case, the appellant was a stranger to the victim (PWl), as stated on page 6 of the typed proceedings. The evidence of PWl does not clearly indicate whether the identification of the assailant was made through an identification parade. Additionally, it is unclear where PWl made such identification. His testimony alone, stating that he identified his assailant whom he saw only one day after the incident, is insufficient to convince the court that the appellant was properly identified. Furthermore, the evidence of PW2 and PW4 confirms that they could not identify the appellant because they saw him only once. It is also worth noting that PW4 mentioned that the faces of the men resemble each other, implying the presence of another person resembling the appellant. In that regard,, it is evident that no identification parade was conducted by the investigator in this case. Considering the nature of the Page 11 of 13 case, where the then accused was unknown to PWl, PW2, and PW6, an identification parade was necessary. Therefore, the sixth ground of

appeal succeeds. (v) Whether the trial court violated section 235(1) and 312(2) of the Criminal Procedure Act. I have carefully examined the section in the light of the complaint raised by the appellant. It is evident that the trial court did not violate section 235(1) and 312(2) of the Criminal Procedure Act. Therefore, the appellant's fifth ground of appeal fails. (vi) The standard ofproof in a criminal case. It is important to clarify that the standard of proof in a criminal case is not beyond a shadow of doubt but beyond reasonable doubt, as provided by section 3(2) of the Evidence Act [Cap.6 R.E. 2022]. The fact is said to be proved in criminal matters when the court is satisfied by the prosecution beyond reasonable doubt that the fact exists. Before I windup, I am inclined to provide that the appellant had spent so much energy in the trial court trying to convince the trial magistrate that he was not properly identified. He repeated the same cry here emphasizing that the victim had asserted that she knew him because he looked old. Whenever identification is questioned it must be seriously investigated. This is an important sieve to assist a criminal court in ensuring that, as much as it is humanly possible, the innocents are not convicted and the guilty acquitted. Page 12 of 13 Based on the above analysis, I hereby allow the appeal and order that the appellant, HAMISI MTIMA ATHUMANI, be released from prison ess he is being held for any other lawful cause. E.IrtALTAIKA

JUDGE 5/6/2023 Judgement delivered under my hand and the seal of this court this 5th day of June 2023 in the presence of Mr. Melchior Hurubano, learned State Attorney and the appellant.

JUDGE 5/6/2023 The right to appeal to the Court of Appeal of Tanzania fully explained. .EALTAI KA

JUDGE Page 13 of 13