JUDGMENT ISAYA WILLIAM ISAKWISA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 17082 OF 2024 CASE REFERENCE NO. 202406212000017082 (Originating from Criminal Case No. 146 of 2019 in the resident magistrate court of Mbeya at Mbeya) ISAYA WILLIAM @ISAKWISA ............................................. APPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT JUDGMENT 18th November 2024 & 10th February 2025 NONGWA, J. The appellant, Isaya William @Isakwisa was arraigned before the resident magistrate court of Mbeya at Mbeya with the offence of unnatural offence contrary to section 154(1)(a) of the Penal Code, Cap. 16 of the Laws of Tanzania. It was alleged that on 19th day of May 2019 at Tazara and Utengule Usongwe area within the district and Region of Mbeya, the appellant did have carnal knowledge of a boy (name withheld) against the order of nature. For purposes of protecting him from stigma, I shall in this judgment use "PW1" or the victim interchangeably to refer to the said boy. He denied commission of the offence. 1 The prosecution relied on evidence of six witness, the victim (PW1), Ackson Lawrence (PW2), Lydia Swilla (PW3), Asteria Cydon (PW4), MG7079 SGT Fred Mwamba Kasongo (PW5) and WP11831 DC Wakuru (PW6). The prosecution also relied on two documentary exhibits clinic card of PW1 (exhibit P1) and caution statement of the appellant (exhibit P2). The appellant fended himself. It was prosecution evidence from PW1 and PW2 that on the eventful day while playing, the appellant pulled them into the house where they were stripped off clothes and directed to bend. The appellant inserted his manhood in the buttocks and were beaten. When they were released, PW1 informed his step mother Mama Feni while PW2 told her mother, father and brother. They were supported by PW3 who informed the court that she was told by PW2 of being sodomised by the appellant. Having gained the information PW3 together with one Severine, PW1’s aunt reported the matter to police while with the appellant. PW5 testified that while at his home at about 8:00 was informed by Halima and others of the incident, he caused arrest of the appellant and took to police station. At the police the appellant was recorded statement by PW6, the same was tendered and admitted as exhibit P2. PW4 testified on birth of the victim and tendered clinic card which was received as exhibit P1. 2 In defence, the appellant raised the defence of alibi that at time the offence was committed was not at his home and stated to have been arrested at 9:00 after returning home. He prayed the charge to be dismissed and he be acquitted. The trial court found the case against the appellant proved by the prosecution and the appellant was convicted and sentenced to life imprisonment. The appellant after being granted extension of time, has filed this appeal on six self-crafted grounds which can be summarised as one, that conviction was entered without assessing credibility of PW1 and PW2 who were of tender age, hence reaching to wrong conclusion; two, that he was convicted and sentenced without evidence of doctor who examined PW1, hence offence not proved; three, that he was convicted on evidence of PW1 and PW2 who did not possess intelligence to testify on the levelled allegation and the case was fabricated by PW3 and PW4 for their benefit; four, that PF3 was not tendered after the prosecutor had noted that it did not prove that PW1 was sodomised; five, that his conviction was based on exhibit P2 which was out of time and failed to comply with the law; and six, that defence evidence was ignored by the trial court. 3 When the appeal came up for hearing, the appellant appeared unrepresented whereas for the respondent, Republic appeared Mr. Lordgard Eliaman, State Attorney who did not support the appeal. When invited to address the court, the appellant submitted that, his fronted grounds of appeal be considered and form his submission. Mr. Lordgard, argued ground one and three together, he submitted that evidence of PW1 and PW2 was to be taken under section 127(2) of the Evidence Act, which requires evidence of a child of tender age to be taken after promising to tell the truth or under oath. He stated the record reflects that evidence of PW1 and PW2 were received after promising to tell the truth. In ground two, that doctor who examined PW1 was not called, state attorney submitted that it did not affect the prosecution case after eye witnesses had testified. He contended that PW1 stated the appellant penetrated his anus, PW2 said witnessed the act and they were not cross- examined by the appellant on those aspects. He added that absence of medical evidence did not flop the prosecution case. He supported the stance with the case of Hatari Masharubu @ Babu Ayubu vs Republic, Criminal Appeal No. 590 of 2017 [2021] TZCA 41 (26 February 2021; TanzLII). 4 Arguing ground four, submission in ground two was adopted, Mr. Lordgard added that the prosecuting state attorney expressed that there was no need to call medical doctor and the appellant had no objection to that. On exhibit P2 being taken contrary to law in ground five, Mr. Lordgard specifically submitted that it was taken within time and its admission in evidence was not objected by the appellant. Further that the same was corroborated by PW1. He stated the complaint was afterthought. In ground six that defence evidence was not considered, Mr. Lordgard conceded to this complaint and alluded that this court being the first appellate court has mandate to step in and analyse the evidence properly. He fortified the argument with the case of Leonard Bundala Malulanya @ Rena Ngasa vs Republic, Criminal Appeal No. 313 of 2022 [2023] TZCA 17345 (19 June 2023; TanzLII). He added that being sexual offence, two main elements were to be proved, whether the victim was penetrated and whether the appellant is the one who committed the crime which he said, were proved. In rejoinder the appellant insisted that his grounds of appeal be considered. 5 Having considered grounds of appeal and submissions by both sides, I opt to deal with ground three, five and six separately whilst ground one, two and four will be discussed conjointly. For start is ground three that PW1 and PW2 were not possessed full intelligence to understand the allegation. Mr. Lordgard has submitted that their evidence was recorded after they had promised to tell the truth under section 127(2) of the Evidence Act. It is settled law that every person is competent to testify unless the court considers that he/she is incapable due to reasons as it may determine. This is in accordance to section 127(1) of the Evidence Act which provides; ‘127(1) Every person shall be competent to testify unless the court considers that he is incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age, extreme old age, disease (whether of body or mind) or any other similar cause.’ At hand, PW1 and PW2 were sent before the court and upon examination, the court found competent to testify. Their evidence was taken under section 127(2) of the Evidence Act which enjoins that a child of tender age, that is, a child whose apparent age is not more than fourteen years to give evidence on oath or affirmation or to testify without oath or affirmation but upon promising to tell the truth not lies. PW1 and 6 PW2 testified after promising to tell the truth. I therefore dismiss ground three. With regard to ground five that exhibit P2 was taken out of time and contrary to the law, Mr. Lordgard has submitted that it was taken within time and the appellant did not object. Under section 50(1)(a) of the Criminal Procedure Act [ Cap 20 R: E 2022] (the CPA) basic period for recording statement of the accused is four hours after being taken into restraints unless it is extended under section 51(1) of the CPA. It is in record that the appellant was arrested on 19/5/2019 at 8:00PM and according to exhibit P2 it was recorded on 19/5/2019 from 21:00hrs to 23:00hrs. Which entail that it was within two hours of arrest of the appellant, hence within time. I have noted that in evidence PW6 said it was on 16/5/2019, however I find the infraction is due to typing errors. In the totality ground five is unmerited. On whether defence evidence was considered in ground six, I agree with Mr. Lordgard that it is reflected at page 6 of the judgment. Right so, as reasoned by the trial magistrate, the appellant raised defence of alibi and the other evidence was on his arrest. To say the least, the appellant’s defence was shake and there was nothing to weigh against the prosecution evidence. In the premises I dismiss this ground. 7 Last point is ground one, two and four conjointly as it all touches whether the prosecution proved the case beyond reasonable doubt against the appellant. This being sexual offence case, the law is that the true evidence should come from the victim as laid down in Selemani Makumba vs R [2006] TLR 329. However, the conviction should be preceded by assessment of the evidence to determine the credibility of the victim's evidence when compared to the evidence of other witnesses including the appellant and other circumstances of the case. Caution being sexual related offence is very easy to allege and is hard to prove and much harder, for the accused to defend himself. See Mohamed Said vs Republic, Criminal Appeal No. 145 of 2017 [2019] TZCA 252 (23 August 2019; TanzLII) and Tito Paulo Kuchungura vs Republic, Criminal Appeal No. 570 of 2020 [2023] TZCA 17992 (13 December 2023; TanzLII). Under the circumstance therefore, it is of utmost importance that before the court convicts an accused person for rape or any other sexual related offence, the court should be assured that, the evidence laid before it, proved all necessary ingredients of rape and the available evidence leaves no reasonable doubt. In this appeal it is common ground that identity of the appellant was not at issue at all from the prosecution and appellant’s evidence, the 8 victim and the appellant knew each other. Similarly, the age of the victim was not disputed and is not in contention in this appeal either. The glaring question is whether the victim was sodomised. What entails unnatural offence under section 154 of the Penal Code is carnal knowledge (penetration) against the order of nature. My examination of evidence reveals that PW1 and PW2 said the appellant put his dudu on the victim’s buttocks. Let the records speaks itself; PW1 at page 11 the proceedings testified; ‘On the date I did not recall I was at home with my friends, aki, playing biku. Isakwisa arrives. He pulled us in the house. He stripped off our clothes. He directed me to bend. He put his (dudu) in my buttocks. He finished. He beat me with Mabena, I felt pain in my buttocks. When Isakwisa wa putting his dudu in the buttocks Aki was crying...’ On the other hand, PW2 at page 15 said; ‘One day we were playing with at home with victim. Isakwisa came. He called us in the house. He beat me up. He put questions on us. He head raped victim. He stripped off our clothes, trousers. He started with me then victim. He produced his dud and put in the buttocks of victim. I was present in the house. I did not raise alarm...’ In his judgment the magistrate stated according to African customs and culture, children are prohibited from mentioning private parts of 9 human. He said dudu is referred penis or vagina and buttocks as anus. I partly agree with the trial magistrate that it has been accepted that when a child mention dudu means penis or vagina. See Mathayo Laurance William Mollel vs Republic, Criminal Appeal No. 53 of 2020 [2023] TZCA 52 (20 February 2023; TanzLII) and Hassan Kamunyu vs Republic, Criminal Appeal No. 277 of 2016 [2018] TZCA 259 (21 August 2018; TanzLII). Whether buttocks mean anus, the magistrate did not cite any authority to that effects and I have not been able to get one. In my view buttock is not synonymous to anus. Thus, submission by Mr. Lordgard that PW1 said was penetrated in the anus is self invention as in the entire evidence of PW1 and PW2 the word anus is not mentioned. The criminal jurisprudence in sexual offences such as rape, incest by male, and or unnatural offences, require penetration, however slight, of a male organ into the vagina or anal for unnatural offence, as an ingredient. In this appeal evidence of PW1 and PW2 did not disclose penetration. Connected to the above is a complaint that medical doctor who examined the victim was not called to prove penetration, Mr. Lordgard submitted that it was not necessary on the weight of evidence of eye witness of PW1 and PW2. I agree with him that sexual offences may be 10 proved in the absence of medical examination and absence of such evidence cannot always dent the prosecution case. Such evidence is to corroborate existing evidence of the victim who adduces the best evidence in terms of Selemani Makumba (supra) and Ado Aron Nziku vs Republic, Criminal Appeal No. 449 of 2021 2024 TZCA 220 (22 March 2024; TanzLII). However, it depends on circumstances of each case. At hand, the victim failed to prove that was penetrated against order of nature, thus other evidence must be looked to see if it proved the same, this can come from first person who examined the victim and medical examination. According to PW1 he reported the matter to Mama Feni, evidence is silence if the said Mama Feni testified in this case. PW3 said the matter was reported to her, unfortunately did not state if she examined the victim. Looking closely, it appears on the same eventful date after obtaining PF3, PW1 was sent to Ifisi hospital, medical officer who examined the victim was not called to corroborate the allegations of unnatural offence to the victim. Initially the prosecution intended to call the medical officer and the accused wanted him be called and there were two adjournments waiting him but for no reason the prosecution changed goal post not to call him, hence argument by Mr. Lordgard that the appellant consented for doctor not being called in circumstance of this case is not here or there. 11 Justifying the failure to summon medical officer, the prosecution informed the court that medical officer would not testify because information in PF3 was irrelevant. I am convinced would have testified against the prosecution. Akin situation was discussed in Kasim Seleman @ Gamale vs Republic, Criminal Appeal No. 635 of 2020 [2024] TZCA 722 (14 August 2024; TanzLII) and the court stated; In the circumstances of this appeal, we agree with Mr. Magige, that the presence of a medical doctor who examined the victim was material to corroborate the allegations of unnatural offence to AX....We therefore, agree that the medical doctor was a material witness and failure to parade him/her as a witness entitled the Court to draw an inference adverse to the prosecution.’ PW4 tried to establish that on 20/5/2019 when she examined PW1 saw some bruises, however this evidence is doubtful as it came a day later particularly after medical examination. Such evidence ought to come from PW3 or Mama Feni where that matter was reported first. Mr. Lordgard has submitted that the appellant did not cross examine in most aspects, I agree in the first place that, failure to cross examine a witness on material respect is tantamount to accepting the evidence to be true. It has also to be noted that the respective principle presupposes that the parties are aware of the implications of such failure. Therefore, if an accused is unrepresented layperson, such principle has to be used 12 cautiously. See for instance, Zakaria Jackson Magayo vs Republic, Criminal Appeal No. 411 of 2018 [2021] TZCA 207 (19 May 2021; TanzLII) and Issa Reji Mafita vs Republic, Criminal Appeal No. 337 of 2020 [2020] TZA 404 (24 August 2021; TanzLII). In the circumstance of this where the appellant was unrepresented, though may be true that the appellant did not cross examine in most aspects, the principle cannot apply against him. Another evidence upon which conviction was based is caution statement (exhibit P2), it is the law that though prone to criticisms no evidence can be better than that of an accused who confesses to a crime. See Mohamed Haruna @ Mtupeni & Another vs Republic, Criminal Appeal No. 259 of 2007 [2010] TZCA 141 (4 June 2010TanzLII). I have scrutinised exhibit P2 but it did not establish penetration required by the law. In Akwino Mtavangu @ Baba Janeth vs The Republic, Criminal Appeal No. 379 of 2021 [2024] TZCA 233 (22 March 2024; TanzLII) the court stated; ‘Section 131(4) of the Penal Code envisages a situation where the male organ (the penis) finds its way into the female organ (the vagina) not outside the vagina. To succeed in proving penetration there must be satisfactory evidence that the male organ entered, however slight, into the vagina and not otherwise.’ 13 In exhibit P2 evidence of penetration is lacking and there is no corroboration from medical doctor or any person who examined the victim that was penetrated in his anus. For the foregoing, there is no doubt that the offence charged was not proved since the prosecution failed to prove penetration. The appellant was wrongly convicted. In the event, I allow the appeal, quash the conviction and set aside the sentence imposed by the trial court. I hereby order immediate released of the appellant from prison forthwith unless he is lawfully held. V.M. NONGWA JUDGE 10/2/2025 Dated and delivered at Mbeya this 10th February 2025 in presence of the appellant and Mr. Rajabu Msemo state attorney for the Respondent. V.M. NONGWA JUDGE 14