20161121 TZHC Dar es Salaam

- 1 IN THE HIGH-COURT OF TANZANIA .

AT DAR ES SALAAM

APPELLATE JURISDICTION CRIMINAL APPEAL NO. 73 OF 2015 (From Kinondoni District Court Criminal Case No. 208/ 2012) MARTIN FRANCIS PETER ........................................ APPLICANT

VERSUS THE REPUBLIC ..................................................... RESPONDENT

JUDGMENT 12.8 & 21.11.2016 DYANSOBERA, J: The appellant Martin Francis Peter was charged before the District Court of Kinondoni District with and convicted of unnatural offence c/s 154 (1) and (2) of the Penal Code, Cap.16 R.E.2002. He was sentenced to thirty (30) years prison term. He was not satisfied with the trial court's decision and has appealed. Briefly, the facts of the case are these. Nassoro Mahmoud Mbalikula (PW 1) and Mariam Hassan Mzee (PW 2) are, respectively, father and mother of Collin John (PW 3), a boy aged 10 years at the time he was testifying and is also a victim in this case. According to PW 2, they have two children. One is PW 3 who was born on ~7 th ,. / May, 2004 and the other is Adam born on 18.7.2013. PW 3 testified that he used to stealing money from PW 2 's bag and taking the money to a·man who would undress him and insert his penis into his buttocks telling him not to tell anybody lest he be killed. It was 2 his evidence that between April and May, Husna sent him to buy some charcoal in the backyard of their house. He then met a man who told him that his parents had a lot of money and asked him to rob them. He, at first stole 20,000/= and took the money to the man who closed his eyes with a piece of cloth. He carried him to the bush where he undressed him and entered his penis into his buttocks. He then returned him at the place they had met. PW 3

further testified that he stole Tshs. 40, 000/= from PW 2's handbag, took it to the man. On that day they did nothing as there were many people. The following morning, PW 3 stole Tshs. 30,000/= and took it to the man who took him to the bush, undressed him and inserted his penis into her buttocks. PW 2 later learnt that she was being robbed and upon investigation, she discovered that the thief was her son, PW 3. It was her evidence that upon interrogating PW 3, he told her that he used to take the money to the appellant at night time. The appellant would receive the money, take PW 3 to the house, and then enter his penis into her buttocks. PW 3 informed her husband who, by the time was in Mwanza. PW 2 also reported to Kijitonyama police station which issued a PF 3. At the hospital, it was discovered that PW 3 had been carnally known. As to how the appellant was apprehended, it is on record that the PW 3 in company of PW 1 and PW 4 (a police officer who investigated the case) in setting a trap, went to the appellant, PW 3 handed over the money to the appellant and the appellant was thereby apprehended. 3 Dr. Julius Narcis Riwa who testified as PW 5 told the trial court that on 27 th May, 2012 at about 1000 hrs, PW 3 went to him with a PF 3 claiming that he was carnally known. In his investigation he discovered that PW 3 's physical appearance was loose, he was carnally known, he

had no STD's and that his sphincters were loose. He then filled in the PF 3 (Exh. P. 1). In his defence, the appellant denied having carnally known PW 3 against the order of nature. He told the trial court that by the - time-of-the.commi:ssion of the alleged offence, he was suffering from the TB, he is impotent (hana nguvu za kiume), and as· such he-could ___ _ not commit the alleged crime. Further that he has neither a wife nor children. This evidence was fully supported by the evidence of Lucas Mkude (DW 2). DW 3 one Michael Paul Baruti witnessed the appellant being apprehended as a thief. In its decision, the trial court found that the offence had been sufficiently proved. She rejected the defence that the appellant could not have committed the offence on account of TB and impotence. The appellant's memorandum of appeal lodged in this court on 9 th day of June, 2015 has eleven grounds of appeal which are to the following effect.

1. THAT, the evidence of PW 1 and PW 3 created doubt in the prosecution case.

2. THAT, the testimonies of PW 1 and Pw 2 was discreditable and untenable in that PW 1 did not state to have seen the appellant committing the offence and no medical examinationnwas conducted in respect of the appellant and that PW 3 stated 4 that he did not know the appellant-beforehand.- -This_ grou,nd also covers the 10 th ground of appeal.

3. TTHAT, the conviction was based on the medical report PF 3 and the testimony of PW 5 without there being any comparison of the spermatozoa.

4. THAT, the conviction was based on uncorroborated testimony of the evidence of family members who failed to prove the case beyond reasonable doubt. · ----------- --- -----5-;-~THA'f, __ the___G~ll_S_~ _9f t~e whole matter was the loss of money occasioned by PW 3 and nothi~g- else~ 6. THAT, the testimonies of PW 1 and PW 4 were contradictory on the arrest of the appellant and where the sodomy actually took place. This ground also covers grounds Nos. 8 and 9 of appeal.

7. THAT, the was no document brought to prove the age of the victims. There was neither birth certificate, school attendance register nor a head teacher and/ or class teacher was summoned to prove that the victim was a pupil. In regard to the 11 th ground of appeal, the appellant told this court that the defence raised reasonable doubt in the prosecution case. At the hearing of this appeal, the appellant paddled his own canoe while the Republic was represented by Ms Celina Kapande, learned state attorney. The Republic did not support the appeal. Starting with the 2 nd ground of appeal, learned state attorney submitted that it was correct for the victim (PW 3) to be medically examined and the PF 3 5 was properly tendered in court and that there was no necessity for_ the appellant also to be medically examined. Responding to the 3 rd ground of appeal, it was stated that the victim was medically examined and was found that his anus had been tempered with. As to the fourth ground of appeal, learned counsel submitted that the evidential value of the testimony of the witness was high hence in compliance with section 127 of the Tanzania Evidence Act. As to the evidence of the victim, this court was told that her evidence was -- corroborated by PW 1 and PW 2. Regarding the failure to report, it was contended that PW 3 had been--t:h~~-atened by--the·appellant. Jt was insisted on part of

the Republic that the appellant was identified by the victim even before being taken to the police station and before PW 4. As to the age of the victim, learned state attorney said the education was immaterial for the determination of the age of the victim and that the parents were the best witnesses. She cited the case of Emmanuel Kibona and another v. R. [1995] TLR p. regarding the 8 th ground of appeal, it was stated that it is clear how and where the sodomy was perpetrated and that the victim was being blind folded and the PF 3 showed that the victim's anus was loose. The 1st , 5th and 9 th grounds were argued together. It was contended that the prosecution witnesses were clear that PW 1 was informed by PW 2 that PW 3 was stealing money and taking it to the appellant. The victim mentioned the appellant to be his assailant and that the defence evidence was too weak to displace the ------- 6 prosecution case. Ms Celina Kapange prayed that this appeal be dismissed in its entirety. The appellant, in rejoinder, told this court that the court's decision was based on the evidence of PW 1 and PW 2. According to the appellant, PW 1 said that he did not see the appellant doing the act. PW 3 stated that he did not know the appellant and the Doctor failed to give full date in respect of which the medical examination on part of the appellant was done; otherwise, the

appellant -reiterated what he_ha(i _stated_,in his grounds of appeal. I think the appeal has merit. The app-ellant was charged--with _____ _ unnatural carnal knowledge of PW 3. Section 154(1) and (2) of the Penal Code provides:- 154. (1) Any person who- (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, 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. (2) Where the offence under subsection (1) of this section is committed to a child under the age of ten years the offender shall be sentenced to life imprisonment. 7 Although the charge sheet was silent on the which paragraph of subsection ( 1) of section 154 of the Penal Code, from the facts on record, I think the appellant was alleged to have contravened paragraph (a) of sub-section (1) of section 154 of the said Code. The sole evidence tending to connect the appellant with the charged offence is that of PW 3. Carnal knowledge against the order of the nature simply means anal sex. However, it is clear that, if the evidence of PW 3 is believed, then there was no such anal sex -- ·-- between-the -appellant -~1. the victim. PW 3, in his evidence, was clear on two things. First, that he did

not me-ntiori the ·culprit-to--be _ the appellant but a "man" and second, the man was not having anal sex with him but he used to undress him and was inserting his penis into his "buttocks". That in my view, is not anal sex in its natural sense. Besides, the evidence of PW 5 that when he examined PW 3 he found that his physical appearance appeared to be loose, that his sphincters were loose, was not a conclusive proof that PW 3 had been carnally against the order of nature leave alo11e by the appellant. ·• Moreover, the evidence of PW 3 could not be swallowed without a pinch of salt particularly where he did not report the incident to anybody and his credibility being questionable, he being of a thief who could rob his mother three times. As if that was not enough, the way the appellant was apprehended leaves a lot to be desired. It is the evidence that he was apprehended as a thief and not a rapist! ------, 8 Apart from the evidence of the prosecution being week, the defence raised reasonable doubt in the prosecution case. His insistence that he was impotent and that during that time he was suffering from the Tuberculosis and therefore could not carnally know PW 3 against the order of nature were strong factors which could not be lightly Indeed, the evidence against the appellant was too weak to ground a conviction. The conviction was, therefore, against

the ·weight··of---t-he---evidence_ ~i:if11rled before the trial court and the incarceration was uncalled for. With the foregoing reasons, I allow the appeal quash conviction and set aside the sentence. I order that unless lawfully held for other causes, the appellant s uld be released from prison forthwith. .P .Dyansobera Judge 21.11.2016 / ,, i ' ,,.__ _ ..... ,,;, - •:."'t '· ' I. ., fl ;'~ ~i -~- ' , I 11 I } \..._.• ·, ... -~