Jdg criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 14917 OF 2024 (Arising from the judgment of Criminal Case No. 123 of 2023 of the District Court of Simanjiro at Orkesumet) KELVIN JOSEPH NGATUNGA @ KIGANI TONGISA ............... APPELLANT Versus THE REPUBLIC .......................................................................... RESPONDENT JUDGMENT 29th October & 18thDecember,2024 Kahyoza, J.: Kelvin Joseph Ngatunga @ Kigani Tongisa (the appellant) was convicted for having carnal knowledge of a boy against the order of nature and sentenced to 30 years’ imprisonment. Aggrieved, Kelvin Joseph Ngatunga @ Kigani Tongisa appealed against conviction and sentence contending that the prosecution did not prove the case against him guilty beyond reasonable doubt, that he was suffering from cancer for that reason, unable to commit the offence, that the trial court did not consider his defence and finally that the trial court violated the procedural law. The prosecution alleged that while the victim was playing with his friend Patrick, the appellant who happened to be the victim’s uncle called him inside. The victim responded and entered the appellant’s house. Patrick 1 left. The victim found two chairs and a walking stick (crutch) in the house. The appellant sat on one of the chairs holding a bush knife. He told him not to tell his mother. He put off his trousers and the victim’s pair of trousers and he inserted his manhood in the victim’s anus. The trial court recorded that victim saying that “aliniingizia dudu lake huku nyuma”. The victim yelled. On hearing that, the appellant put on his trousers and the victim put up his trousers. The victim told the court that while his mother (Pw1) was washing him, he told her that uncle “Kigani ameniingizia dudu lake”. They went to police later to hospital. The victim’s mother (Pw1) deposed that while washing the victim on 10.9.2023 in the preparation to go to church she discovered bruises and fluid like in the victim’s anus. She inquired what had happened the victim did not tell her until it was 18.00hrs when the victim told her that uncle Kigani called him in the house and inserted his “dudu lake”. She reported to the village chairman who told her to report to police. She went to police on the following day, obtained a PF 3 and took the victim to hospital. Kiangi Harry Mwelinde, a medical doctor (Pw3) examined the victim and found that he was carnally known against the order of nature. He filled 2 the PF. 3, which was tendered as Exh.P.1. The victim’s mother testimony was supported to great extent by No. 8946 D/ Sgt Jawadu (Pw4) who deposed that he attended the victim and issued her a PF.3 and directed them to go to hospital. The appellant denied to commit the offence. He deposed that on 10.9.2023 he was at home with his parents who had come from Songea to take care of him. He deposed that they took him outside and that after his mother went to church he stayed at that place with father and uncle. He remained outside until 11:00hrs. Ansita Hinju Lusian (Dw2) deposed that on Sunday she was with the appellant at home prepared medicine for him. She deposed that the appellant was unable to walk or wake up. Joseph Simon Ngatunga (Dw3) deposed that he was surprised to hear from police that the appellant had raped a child on Sunday. He deposed that on Sunday he was at their home place he did not leave the appellant alone. The appellant summoned Amina Ayubu (Dw4) who deposed that she saw nothing as she was cooking. It is against the above evidence, the trial court convicted the appellant. The appellant appeared in person during the hearing and Ms. Rhoda, learned state attorney appeared for the respondent. The appellant did not elaborate 3 the grounds of appeal. Ms. Rhoda submitted in opposition of the appeal. I will consider the submission while replying to the issues raised by the grounds of appeal. Did the prosecution prove the appellant guilty beyond reasonable doubt? The appellant raised general and specific grounds of appeals. The general ground of appeal is whether the prosecution proved the appellant guilty beyond reasonable doubt. The general ground of appeal covers the third and fourth grounds of appeal, thus, it covers the issues whether the trial court relied on contradictory evidence to convict and sentence the appellant and whether the trial court did evaluate the evidence properly. The Court of Appeal dejects a practice of raising a general ground of appeal together with specific ground(s) of appeal. It observed in Rutoyo Richard vs R., (Cr. Appeal No.114 of 2017), published on the website, www.tanzlii.org [2020] TZCA 298, where it stated that: - “Although we find it not to be a good practice for an appellant who has come up with specific grounds of appeal to again include such a general ground, but where it is raised as was the case in the present case, it should be considered and taken to have embraced several other grounds of grievance.” 4 Given the above position in Rutoyo Richard vs R. (supra), I will consider only the general ground of appeal, which is whether the prosecution proved that the appellant was guilty of the offence of rape beyond reasonable doubt. I will answer the second, third and fourth grounds of appeal in the course of determining the general ground of appeal. The appellant was charged and convicted with one count of unnatural offence under section 154.-(1)(a) of the Penal Code. The prosecution was required to prove only one element of the offence which is that the appellants had carnal knowledge of the victim against the order of nature. Section 154(1) (a) states that- “154.-(1) Any person who- (a) has carnal knowledge of any person against the order of nature; (b) N/A (c) N/A, commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years.” To prove that the appellant knew the victim carnally against the nature, the prosecution was required to prove that the appellant penetrated the victim against the order of nature. I wish to state the obvious that, it is 5 settled, as submitted, that in sexual offences the best evidence is that of the victim, as per this Court's decision in Selemani Makumba v. R [2006] T.L.R. 379, and Selemani Hassani vs Republic (Criminal Appeal No. 203 of 2021) [2022] TZCA 127 (22 March 2022), to mention a few. It is also settled that the evidence of the victim of sexual offences should not be taken as a biblical truth it must be subjected to scrutiny to test the witness’ credibility. See the Mohamed Said v. R., Cr. Appeal No. 145/2017 and Akwino Malata vs Republic (Criminal Appeal No. 438 of 2019) [2021] TZCA 506 (21 September 2021). The Court of Appeal in the latter case had this to say- “This is a principle of law to the effect that the evidence of sexual offence has to come from the victim and if the court is satisfied that the victim is telling the truth it can convict without requiring any corroborative evidence.” The victim, child of six years old, after promising to tell the truth told the trial court that while playing in the afternoon uncle Kigani called him inside the house. He testified that after the appellant called him inside the house, his friend Patrict left. He stated- “I went inside I saw “walking support” inside, two chairs [.] He was sitting on chair[.] He was handling a big knife. He told me if I say 6 anything to my mother he will kill me. He undressed my trousers and inserted his penis to me. He also undressed his clothes. He inserted his “dudu huku nyuma” I felt pain, I felt bad I yelled. He did not cover my mouth with anything. After I yelled he put on the cloth and I put on mine and went away.” The victim’s evidence was detailed given a fact he was six years he said what was relevant to prove the offence. I do not think he was coached or he told lies. The appellant had an opportunity to cross-examine the victim. The victim relied during the cross-examination that- “You were [sat] on a chair. You said if say to my mother or brother you will kill me “uliniingizia dudu lako”. … I got pain, there were no people when I yelled.” The victim was consistent as the cross-examination did not shake him. Thus, the victim was a reliable and credible witness. It is my considered view that with or without corroboration, the victim’s evidence was sufficient to support conviction. The evidence of the victim’s mother and Kiangi Harry Mwelinde, a medical doctor (Pw3) corroborated the victim’s evidence to the extent that he was penetrated against the order of nature. The evidence of the victim’s mother deposed that while bathing the victim saw bruises to his anus and sperms. She asked the victim what had happened to her. The victim refrain saying that if he told her what happened he will be killed. They 7 went to church. After they came from church, she asked him but he did not tell her what had happened. At 18:00 hrs. he told her that uncle Kigani called him inside the house and entered “dudu lake”. Kiangi Harry Mwelinde, a medical doctor (Pw3) deposed that he examined the victim and found that he was carnally known against the order of nature. He filled the PF.3 which he tendered as Exh.P1. He stated in the PF.3 that the evidence of penetration was the presence of bruises on anus extending inwards to the rectum. The appellant submitted that he was suffering cancer so unable to know a person carnally. He challenged the victim’s mother that how did she go to church realizing that her child was known carnally. As pointed above there is ample evidence that the victim was penetrated. The appellant’s allegation that he was not cable of making sex as he was suffering from cancer ought to have been medically proved. The appellant had a duty to adduce evidence to prove that he could not have sex. The fact or the allegation that, he was impotent was with his personal knowledge, the anus of proof rested on him. The Prosecution has no duty to prove that the appellant is not impotent. I wish to refer to the cases of Nyamasheki Malima @ Mengi vs. Republic, Criminal Appeal No. 177 of 8 2020, Court of Appeal of Tanzania at Musoma and Nguza Vikings @ Babu Seya & Three Others v. Republic, Criminal Appeal No. 56 of 2005 where the defence of erectile dysfunction was raised. In Nyamasheki Malima @ Mengi vs. Republic, (supra), the Court of Appeal held that- “Given that the appellant in the instant case did not produce any proof of his alleged erectile dysfunction and that the prosecution had no burden to prove that he was not impotent and given that the medical evidence on record in support of the victims' accusation against the appellant was found credible and reliable, we are inclined to uphold the concurrent finding by the courts below that the claimed impotence was most probably a lie. We thus hold that the appellant's defence was justifiably rejected.” The appellant did not adduce evidence to prove that he was not impotence as he was suffering to cancer. I find that the appellant’s allegation a mere lie. As to the victim’s evidence, I find that it was credible and reliable. The victim deposed that the appellant whom he names as uncle Kigani knew him carnally against the order of nature. The victim gave a description of the place where he found the victim and what he saw. He knew the victim before and the offence was committed during the day. The appellant and his witnesses did not shake the victim’s recognition evidence. The defence evidence was that they were with the appellant all 9 the time on Sunday and never left him alone did not negate the victim’s evidence that the appellant was in the house alone and summoned him inside and penetrated him. I do not see the reason for the victim to lie or the victim’s mother to tell his son to tell lies. The prosecution proved beyond doubt that the victim was penetrated and threated to be killed if he disclosed what the appellant did to him. I also find that, since the victim knew the appellant prior the commission of the offence and the offence was committed during the day, the victim did properly identify the appellant as the person who knew him carnally against the order of nature. The appellant complained that the trial court did not consider his defence. Like, Ms. Rhoda, the learned state attorney, I am of the view that the trial court did consider the appellant’s defence and found no merit. The defence did not poke holes in the prosecution’s evidence of recognition. The victim’s evidence that it was the appellant who penetrated him was impeccable. The appellant complained without elaborating that the trial court violated the procedure. Ms. Rhoda submitted that the trial court complied with all procedure and that the only procedural flop was that the appellant was not give the complaint's statement. She submitted that failure to provide 10 the appellant with the statement is not fatal. It was curable under section 388 of the CPA. The appellant was heard and he had an opportunity the hear the evidence and cross - examine the prosecution's evidence. He referred the Court to the case of John Stephano and 5 Others vs Republic (Criminal Appeal 251 of 2021) [2022] TZCA 469 (22 July 2022) where the Court of Appeal held that - "We turn to the third ground as to denial of a fair hearing. On this ground, the appellants are lamenting that, they were denied the statement of the complainant and a copy of the proceedings necessary for preparation of their defence. Mr. Mwakasege did not comment on this issue in his submissions. On our part, having examined the record, we find that the complaint is baseless as there is nothing therein to suggest that either of the appellants requested for the said documents and denied. Neither did they raise the issue at the first appeal. The claim is therefore, an afterthought and it is hereby dismissed." I agree with Ms. Rhoda, the learned state attorney, that the trial court did not violate any procedure which may have resulted to miscarriage of justice to the appellant. The appellant heard the prosecution’s evidence, cross-examined the witnesses. He gave his defence and called witnesses. I find no merit in the fourth ground of appeal. 11 In the end, I find that the prosecution established that the appellant knew the victim carnally against the order of nature, for the reason he committed the offence he stood charged. I dismiss the appeal, uphold the conviction and the sentence, which is the minimum provided by law. I order accordingly. Dated at Babati this 18th day of December, 2024. John R. Kahyoza Judge Court: Judgment delivered in the presence of the appellant and Mr. Jackson Mayeka, the state attorney for the Respondent. Right to further appeal explained. B/C. Mr. Damas (RMA) present. John R. Kahyoza, Judge 18. 12. 2024 12