19940321 TZHC Dar es Salaam2

A ,T._, D',-u ilL l_J:U_'l ATI/I' ('I .l"'l. • I HIGH COU:'tT CRI):n.:YA:~, P.PPEAL NO. 42 OF 1993 . Original Crim:i 131 CJse No.373 of 1993 of the District cour·t of Viorogoro at Morogoro Bijfore J~M. Nfanya, Esq., s.p~ Magistrate ·JEREMI.J1_ KILo:_.:,,iyn ••...•..•.•• AP::.:>ELAN'r •. '·',versus -~ . . . . . .."......... . RESPO:ITT)ENT •,,."'-'"' THE REVuBLI C ... ' . -·-------- J r D G ME N T MKUDE, J. The appell,rnt, JEREMIA KILOl'JGOZI, · was charged with an unnatural ofience c/s 154(~0:of the Penal Code and U¼ion conYiction was sentence t'b -five years imprisonment. ~ ., •r ·,~ It was alleged by the yrosecution tha.t.: ·-fhe appellant, :on the 1rt11 daJ of October, 1992 at 01.oo· .hrs at Nine Street ,,- Morogoro, within the Mnnicipali ty, District a.n9--: Region' of Morogoro, ~ad carnal knowledge of a duck, which is· e' r • against the ofj~r cii na~ure. ,This ap~eal is against both conviction and sentu1ce. In his l(?ng memorandum oi·\,nppeal the appellant ) challenges the trial court's findings of fact and complains ·thfft the whole case was framed:up a&~inst him by PW2 .., ~ '\,.~ Seif Salehe, PW3 Ma~eno Malei~la and PW5 Neema Salehe • who have been ar:r;ested by the police f0>r brewing 11 moshi 11 and the,:1 suspect· ;the apr,ell~ri't. as being the person who :··\: ;- ;,- reported to th~ p·olice. The appellant was not reptesented ·, . {'-•" . at the hearing:·~\o•f this appeal. · Mrs. Mwiruke, learned State Attorney, did not support ''" . the conviction. In view of it~ evidence on record I agree . that this conviction cijnnot • • <:ti > . stand. . Apart from the evidence J .' of th~ c~:rn1plainfirt and bi8 two re1ati ves ( brother and sister) ' • •' . t• .:. . . . . ·. there is no . . othei •, evidence . ,. to link the appellant . w1th ' ' . the act of hav f~'g C8rric:l .. knowledge of a d uok, P\i3 came to the scene- ,. after the ·two 3alehe brothers and sis~r- - 2 - ... had- summoned the av;ieL, :,nt \vt•: W8G holding a duck. The appellant was arrested snu ts~en to the police station and lier to hospital that sBme n}ght and Jet the prosecution did not 9roauce any : t, ·1 · 8aJ :;vidence to support the claim 1 b.t PW2, PW3 and PW5. For his part the =· ppeliant called DW2 Cleophacia d/o Tawatawa, a Medical A1 1istant, who said she did not examine the appellant oecause she saw no sperms on the duck. The appellant put up~ story that he was framed up by PW2 and PW5 because theJ £:uspected him of being a police informer. This may or may not 1 ·. true, but it ought to h~ve put the learned trial magi~t~ ·ate on notice cUld he should have examined the credibiJity of the vrosecution witnesses more closely especially £ 3 the only eye witnesses· to the incident are two brothers ane a sister. The learned trial magistrate acted on the report (PFb3) tendered by the prosecution as evidence while at the .sa:.1e t:i.me he rejects the· oral testimony of the Medical Assistant who had prepared the report. According to PWl after the appellant was arrested and taken to the police station a ?F.·3 was issued and b~th the appellant and the duck were taken to the Government Hospital. According to DW2 she was on duty on the materia_l. night and she received both the duck and the appellant fo~ medical examination. It follows that it was DW2 who prepared the PW3 relied on by the prosecution. After saying that she did not examine the apyellant becaus€ she found no sperms on the duck in her examination-in..:chief DW2 had this to say in cross-examination bJ the Public Prosecutor: "I am now a year service 1?-S a t,1:edical Assistant and I am not qualified Medical Officer .. Anybody on duty roster can examine patients ~nd ~ive out his report Grade one. At the ~tme when theJ came the com;,,lainant was so angry threatening to hurt the accused person and to avoid them I ha6 to write my report immediatelJ instead of sending them to Grade one •••• " The learned triaL magititrate appears to have lost sight of t.b.e fact that it was 3,;~ ·.vh~ in-epared the PF3 report and so while acting on the rtJort he had this to sa1 about DW2: ... - 3 - "DW2' s a.ccount appears to be a nice storJ so long as she appears to have not been the person who had examined the accused yerson as well as the said duck in question ~hrough her contradicting statement wbJch is not equivalent to the rJedical '.{eport on PF3 of 11. lo. 92 (11 1). I)V/2 ;;ypears to have just been. picked up bJ the accused person to defend him rather than being the person who examined hin ( JWl). 11 · • there With due respect to t½e learned trail magistrateLis no evidence to cotratlict. the clairn bJ DW2 trrnt she was on duty on the materiaJ night i::!nu that she is·the one who received the appellant and the uuck for medical examination. The reason for the a;yarent contradiction between her report and the evidence 6be gave in court can be clearly seen from her answers whan cross-examined bJ the Public Prosecutor. In the final result I agree with Mrs. Mwiruk~, ·learned State Attorney, that the conviction of the appell~nt is not tenable and I quash it. Accordingly I allow this a_p1Jeal ai,d order that the appellant be released forthwith unless he is helu for some other lawful cause. T.1·. MKUDE JUDGE 5 • 1 • 94 21/3/1994 Coram: A~R. Manento, SDR•HC For Respondent Mrs. Mwiruke ·State Attorney Appellant absent c.c. Mja_ya Court: The appellant was never present during the appealt so the judJ~ent has been read in his absence.