KELVIN RICHARD VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA CRIMINAL APPEAL No.40744 OF 2023 (Originating from Criminal Case No. 30 of2023 at the District Court ofArumeru at Arusha) KELVIN RICHARD.............................................................................. APPELLANT VERSUS THE REPUBLIC................................................................................... RESPONDENT JUDGMENT June & ffb August, 2024 KAINDA, J.: The appellant herein was on 25th May,2023 arraigned at Arumeru district court to face the charge of unnatural offence Contrary to Section 154 (1) and (2) of the Penal Code (Cap. 16 R.E. 2022). After full trial the trial court was convinced that the offence was proved to the tilt and the appellant was found guilty and ultimately convicted and sentenced to serve a term of life 1 | Page imprisonment. Dissatisfied, the appellant has preferred this appeal fronting a total of six grounds of appeal. The facts of this matter briefly stated is that; On 27th day of April, 2023, at Kambi ya Pili area, Arumeru district and region of Arusha, the appellant did have carnal knowledge to a boy aged eight years (may be referred to as CJ) against the order of nature, the act which is contrary to the law. It was alleged that, on the fateful day at about 19:45 hours when CJ (PW2) was playing at their home, the appellant called him to the bathroom where he made the victim without his trouser and inserted penis into his anus. It was further alleged that, the appellant covered CJ mouth so that he could not shout. He was also threatened to be killed if he discloses that incident, it was further averred that, the victims' mother PW1 came back home at about 9 pm after a while she took the victim for bathing but she realized that he was not normal as he seem worried. On her brief inquiry as to what was wrong, the victim did disclose nothing as to what happened until he was threatened that is when he revealed the incident to his mother. He was inspected and found with bruises on his anus. The next day he was taken to the hospital. The appeal was argued by way of written submissions. 2| Page The appellants complaints in the 1st and 2nd grounds of appeal are such that the trial court erred in contravention of section 127 (6) of the Tanzania Evidence Act, Cap 6 [R: E 2022] because the evidence of the victim PW2 was totally incredible. It was submitted by the appellant that the victim was not coherent in his testimony as he had different version of the story as to the occurrence of the incident. That initially, he said he was playing outside his house alone then the appellant called him at the victims' bathroom but he changed his story during cross examination where he stated that, he was playing at his home outside and he screamed for help but the appellant covered his mouth. In response, the respondent cited Section 127(1) of the Tanzania Law of Evidence Act, Cap 6 [R:E 2022], which provides that; every witness is competent to testify unless the court considers otherwise. He also cited the case of Nyakuboga Boniface vs Republic, Criminal Appeal No. 434 of 2016 to emphasizes that; the person who is competent witness in terms of Section 127(6) of The Evidence Act, is entitled to be believed and hence is considered credible and reliable unless there are other cogent reasons as to why he should not be believed. He further cited the famous case of Goodluck Kyando vs Republic, that there is no thumb rule in 3 | Page determining the credibility, truthfulness and reliability of the witness, what matters is an assessment of the witness's demeanor and evidence. In Yasin Ramadhani Cha ng'a vs Republic (1999) T.L.R 489 the court insisted that; ''Demeanor of the witness is the one to be assessed for the court determine as to whether his evidence is credible, reliable and truthful". It was submitted further that, factors to consider includes assessment of testimony of the witness in relation to the evidence of other witnesses as it was held in Shabani Daudi vs Republic, Criminal Appeal No. 28/2001. The respondent further submitted that, the evidence of PW2 is credible as he was coherent in his testimony. From the proceedings, PW1 testified that he noticed that the victim was uncomfortable and had unusual walking then he inquired him and found out that he was sodomized by the appellant. The complaint in 2nd ground is basically that the appellant was not properly identified by the victim taking into account the incident alleged occurred during night hours, alleging further that the victim did not give a description of the appellant by his physical appearance, or rather the attire the appellant worn on the incident date. The appellant submitted further that it is a trite 4| Page rule that, if identification is to be of any value, the victim must have given a detailed description of the culprit before. Under the circumstances, the victim stated that he knew the appellant before but he failed to state the clothes he wore on the fateful day. He further stated that the victim failed to recognize the appellant as submitted and this court should draw the inference that the appellant was not identified. On this, he cited the cases of Athuman Hassan vs The Republic, Criminal Appeal No. 15 of 2021, Ally Shabani@ Nzige vs The Republic, Criminal Appeal No. 12 of 2021 and Matiku vs The Republic, Criminal Appeal No. 450 of 2016. On reply, the respondent submitted that the victim knew the appellant before as they are neighbors at kambi ya pili, his testimony at page 7 of the typed proceedings which reads; ' 'I was able to identify Kelvin by electricity tight which was on and bright...I knew Kelvin before the incident as he is our neighbor at Kambi ya PHi, their house is not far from ours." The respondent averred further that the condition set in a celebrated case of Waziri Amani which provides for factors to be considered in case of disputed identity was met. PW2 stated that on the fateful day he identified 5 | Page the appellant as the one who sodomized him because at the bathroom where the incident took place for short time, there was electricity light which was bright and that he clearly knew the appellant because he is their neighbor and their houses are only separated by a wall the version of a story which is similar to the one stated by PW1. PW2 named the appellant to his mother PW1 at earliest possible time that it is the appellant who sodomized him, the matter was reported at Usa River Police Station. Turning to the 3rd ground of appeal, that the trial court erred in law and fact by convicting and sentencing the appellant in a poor investigated case as there was no police investigator. It was submitted that, the district court convicted and sentenced the appellant to life imprisonment on a case which there was no police investigator who came before the court to testify on his findings on how he got at the scene of crime, he further stated that, the presence of an investigator could lead the court to know how he was apprehended and connected with this incident. It is the appellant's submissions that, there was no even a ten cell leader, Chairman or the landlord who was summoned before the trial to testify on the said allegations, which means this case was not reported anywhere. He continued submitting that, absence of ten cell leader, Chairman of the said area of 6 | Page incident left crucial doubts, there arise lots of questions which are left unanswered, he referred the case of Yohana Chimbwingu vs The Republic, Criminal Appeal No. 117 of 2015. Responding to this ground, it was submitted that the records clearly show that the incident was reported at Usa River Police Station where PF.3 was issued, the Police officer who accompanied the victim during the arrest is known as Benja, hence the matter was reported to Police, the fact that there was no Police Investigator who testified cannot defeat this case because under Section 143 of the Tanzania Evidence Act, ( Cap 6 R:E 2022) there is no specific number of witnesses required to testify what matters is whether from the evidence adduced the offence is proved or not. With regards to 4th ground of appeal, that the trial court erred in law and in fact for its failure to find that, there were contradictions in the Prosecution's evidence. It was further submitted that, the evidence adduced by the victim's mother PW1 shows that, she was told by the victim that, she felt pains in anus but the evidence given by the victim PW2 is that he did not tell his mother about what happened since he was afraid following a caution by the appellant. Further that, there is contradiction between the evidence 7| Page of PW1 and PW2 with regards to the time when the victim's anus was checked. In reply, the respondent submitted that from the record, PW1 was told by the victim that he had pains in his anus that's when she inspected the victim and observed the presence of bruises in the victim's anus. From this, it was submitted, the appellant's claim is baseless due to the fact that the alleged contradiction doesn't go to the root of the matter. The crucial matter was the prosecution's duty to prove the case. The question as to time the bruises were found is not fatal and does not go to the root of the matter. Regarding the 5th ground of appeal, that the trial court erred in law and fact in finding that, the defense evidence was not considered when it convicted the appellant. It was submitted that, the evidence by the appellant that, he was not around on the material date because he was in Moshi, in addition the appellant said his case was planted to him due to the fact that PW1 fabricated because he had sexual relationship with her. He further stated that PW1 made an attempt to file various case as a revenge. The trial court had the duty to consider the defense evidence. Responding to this ground, the respondent submitted that the defense of alibi cannot be 8| Page entertained in our case at hand for lack of notice. This court was invited to dismiss this ground. The final is 6th ground of appeal which is a general, that the case against the appellant was not proved beyond reasonable doubt. After both parties7 submissions, it is a turn to this court to determine this appeal. The issue is whether the appeal is merited or not. I will start with the issue of alleged failure to consider the defense case. In his defense, the appellant denied the charge. In his brief defense found at page 19 of the typed proceeding the appellant states, I quote; ,z This offence is fabricated one. I have a sexual relationship with the victims'mother. We separated later on, she decided to connect me with this case. I was arrested with two cases unnatural offence and threatening to kill the victim. They brought me to this court to look this matter clearly as I was not around on the material date. I was at Moshi, I returned back in the night". The trial courts7 finding, found at page 9 of the judgement was reached without even a casual reference to what was said in defense in relation to a complain that the appellant was arrested with two cases of unnatural offence 9 | Page and threatening to kill the victim. I am of the firm view that this was not correct. In the case of Leonald Mwamashola v. Republic, Criminal Appeal No. 226 of 2014 the Court of Appeal held that it is not enough for the court to summarize the evidence for the defense, but it must specifically address it in arriving at its decision. In this case, the court did not investigate the complain that the appellant had another two cases relating with the one he was facing. The prosecution did not even cross examine on the same. My immediate question is whether this piece of defense formed part of the decision. My answer is in the negative. It did not. In this regard, my conclusion is that the appellant was denied the right of fair hearing. Being a first appeal court, my duty is to consider the defense. It is a trite law that the duty of the defense is to cast doubt in the prosecution case. In this case, I entertain doubt on the manner that the allegation made by the appellant was not investigated enough. The prosecution did not even bother to cross examine on this crucial aspect. The trial magistrate had a duty to address the complaint even if, in the end, he would have rejected it, provided that he gives his reasons. In Ikindila Wigae v. The Republic (2005) TLR 365, the court held; 10 | P a g e '' It is a general principal of law in this country that, where the determination of the right or obligation of a person is involved, a decision maker must give reason for his decision" Having observed so, I think it is unnecessary to deal with the remaining grounds of appeal. Consequently, I allow the appeal, quash the conviction and set aside the sentence imposed on the appellant. I accordingly order that the appellant be set at liberty forthwith unless he is held for some other lawfully cause. Order accordingly. Dated at Arusha this 27th July, 2024. S. J. KAINDA JUDGE. 11 | P a g e Judgment Delivered this 5th day of August, 2024 in the presence of Ms. Amina Kiango, learned State Attorney for the respondent/Republic and the appellant in person unrepresented. S.J. KAINDA JUDGE Court: Right of appeal fully explained. 12 | P a g e