CRIMINAL APPEAL NO 412 OF 2021 MATIKO MWIKWABE MWITA V REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA rCOR AM: SEHEL. J.A.. KAIRO. J.A.. And KHAMIS. J.A.l CRIMINAL APPEAL NO. 412 OF 2021 MATIKO MWIKWABE MWITA......................................................... APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Musoma (Extended Jurisdiction) at Musoma) fNoaile. SRM Ext.Juris.^ dated the 15th day of June, 2021 in fD O Criminal Appeal No. 25 of 2021 JUDGMENT OF THE COURT 10th & 18th February, 2025 KHAMIS, J.A.: Matiko Mwikwabe Mwita, the appellant, was arraigned in the District Court of Tarime for unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap 16 R.E 2019. The prosecution alleged that on 8th day of June, 2019 at Nyamimbaro village, Tarime District, Mara Region, the appellant had carnal knowledge of a five years old girl against the order of nature. Name of the girl is concealed to preserve her identity but for the purpose of this judgment, she will be referred to as the victim or "ADN". The appellant pleaded not guilty and the matter proceeded to full trial. Upon a finding that a prima facie case was established, the appellant was placed on his defence and by the judgment delivered on 30th day of July, 2020 by the trial magistrate (V. L. Mugendi, RM), he was convicted as charged and sentenced to life imprisonment. Dissatisfied with the conviction and the sentence meted out to him, the appellant preferred Criminal Appeal No. 194 of 2020 in the High Court of Tanzania, Musoma. In terms of section 45 (2) of the Magistrates' Courts Act, Cap 11, R.E 2019, the appeal was transferred to the Court of Resident Magistrate of Musoma at Musoma, Extended Jurisdiction, where it was renamed as Criminal Appeal No. 25 of 2021 and assigned to I. E. Ngaile, SRM with Extended Jurisdiction. Upon dismissal of the appeal by the Court of Resident Magistrate of Musoma at Musoma, Extended Jurisdiction, the appellant approached this Court expostulating his culpability for the second time. The facts which led to the appellant's conviction and sentence can be summarised as hereunder. The appellant was a neighbour to the house of the father of the victim (PW1) in Nyamimbaro Village, within Tarime District, Mara Region. On the fateful day, 8th July, 2019, PW1 was at the village centre for personal business and left his family at home. At around 20.00 hours, the biological mother of PW1 and a grandmother of the victim (PW2), who had gone for grazing, returned home and realised that the victim and her parents were not present. Upon inquiry over the phone, she was informed by PW1 that the victim went missing from 17.00 hours when she was sent by her mother to buy cooking oil. PW2 joined the search team consisting of PW1 and PW3, a neighbour and family friend. After failing to locate the victim in the village, the team opted to look for her in the nearby bush. Each of the team members carried a torch to help them lead the way. After walking for few steps in the bush, the trio, with the aid of light from their torches, saw the appellant running away from the scene. The search team saw him dressed in a black trousers and a white shirt. Determined to know why the appellant was running away from them, PW1 and PW3 chased him for some time but stopped when they heard the victim crying for help. The team followed the voice and found the victim in the bush lying naked on the ground and shivering for the cold of the night. Her clothes were dumped down and soaked in water. She was then placed in the custody of her grandmother, PW2. While PW1 and PW3 went to look for the appellant, PW2 carried the victim and privately questioned her on what had happened. The victim informed her grandmother (PW2) that she was copulated against the order of nature. However, PW1 and PW3 did not locate the appellant at his parents' house that night. The following morning, the victim was taken to a nearby police station and issued with a PF3 for medical examination. She was then accompanied by PW2 to Tarime District Hospital where Dr. Placidia Rweyemamu (PW4) subjected her to medical assessment. Upon, thorough check-up, the medical doctor discovered that the victim sustained laceration around the anus, loose sphincter muscles and involuntary passage of stool. In the opinion stated in the PF3 (exhibit PI), the doctor stated that, there was evidence of anal penetration by a blunt object which caused tear and relaxation of the anal sphincter. Upon arrest of the appellant, a policeman with force number G 3092, DC Raphael (PW5) was assigned to record his cautioned statement. PW5 told the trial court that, the appellant voluntarily confessed to commit the crime and the repudiated statement was admitted as exhibit P2. In his sworn testimony, the appellant (DW1) distanced himself from offence. He stated that, he was arrested on the date of the incident in relation to the offence charged but denied any involvement in it. On cross examination, the appellant admitted to know the victim and that they were neighbours. On the basis of those facts, the two courts below concurrently found the appellant culpable and bolstered the sentence meted out to him. Determined to restore his innocence, the appellant advanced two grounds of appeal, namely: one, the first appellate court erred in law and fact in failure to find that the prosecution witnesses failed to properly identify the appellant at the scene of crime; and; two, the first appellate court erred in law and fact in failure to find that the prosecution failed to prove its case beyond reasonable doubts. At the hearing of the appeal, the appellant appeared in person, unrepresented. On the other hand, the respondent Republic enjoyed legal services of Mr. Isihaka Ibrahim Mohamed, learned State Attorney. The appellant, a lay person, preferred to respond to the submissions by the respondent/Republic. Consolidating the two grounds of appeal, Mr. Mohamed contended that, the issues were whether the victim was sodomised and whether it was the appellant who committed the offence. On whether the victim was sodomised, the learned State Attorney contended that, the evidence of PW2, PW4 and exhibit PI, sufficiently answered the issue affirmatively. He drew our attention to page 15 of the record where PW2 testified on how she examined the private parts of the witness and found signs of penetration. Upon questioning, the victim informed her that she was buggered. The learned State Attorney referred to the evidence of PW4 at pages 18 and 19 of the record and contended that, her testimony matched the findings in exhibit PI. He further contended that, the doctor's findings that, the victim had bruises around the anus, loose sphincter muscles and involuntary discharge of stool could not make any conclusion other than the act of sodomy. Mr. Mohamed drew our attention to the fact that, the victim did not testify in the trial court but quickly added that, the omission did not prejudice the appellant in any way. He asserted that, at page 14 of the record, the victim was presented before the trial court and upon examination, the learned trial magistrate found she was incapable of giving evidence by reason of tender age. He submitted that in so doing the trial magistrate applied a proper procedure stated in Abdallah Kondo v. Republic, Criminal Appeal No. 322 of 2015 [2016] TZCA 836 (28 September 2016). In that case, the Court observed that, under section 127 (2) of the Evidence Act, Cap 6 R.E 2019, it is the duty of the trial court to determine competency of the child witness to give evidence after conducting a voire d/retest. Responding to the second question, Mr. Mohamed forcefully submitted that the evidence of PW1, PW2 and PW3 left no doubts that the appellant was found running away from the scene after sodomising the victim. He submitted that, the three witnesses corroboratively described the environment at the scene, the time the offence was committed, the time the appellant was seen running away and the manner the victim was found. He added that, each of the three witnesses was well acquainted with the appellant who was their neighbour and saw him running at a close distance of three paces only. Further, the learned State Attorney submitted that, the three witnesses disclosed the source of light which came from their torches and faulted the appellant for failure to cross examine on such important aspect of the case. He cited Nchagwa Matokole @ Lante v. Republic, Criminal Appeal No. 315 of 2013 [2014] TZCA 212 (21 October 2014, TanzLII) where this Court referred to the earlier case of Waziri Amani v. Republic [1980] T.L.R 250 and restated the law that, to underscore the pertinent features of visual identification the court should consider: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred; if it was day or night time; whether there was good or poor lighting at the scene; and; whether the witness knew or had seen the accused before or not. The learned State Attorney further cited Makende Simon v. Republic, Criminal Appeal No. 412 of 2017 [2021] TZCA 156 (3 May 2021, TanzLII) in asserting that, factors for favourable identification stated in the case of Waziri Amani (supra) were not exhaustive as each case has to be considered in its own circumstances. Mr. Mohamed invited us to consider the special circumstances available in the present case as the appellant was recognised by PW1, PW2 and PW3, the neighbours who knew him very well even before the incident. In line with this assertion, he cited Abdallah Kondo v. Republic (supra) at page 25 where the Court referred to the unreported Kenyan case of Athumani Hamisi @ Athumani v. Republic, Criminal Appeal No. 288 of 2009 in which it was held that, recognition is more satisfactory, more assuring and more reliable than identification of a stranger. When given the floor to respond, the appellant urged the Court to adopt his grounds of appeal and prayed to be released from prison. He insisted that he was innocent and justice was not done in the lower courts. We have dispassionately considered the rival arguments. From the grounds of appeal and the submissions by the parties, the main issue for determination is whether the prosecution proved its case beyond reasonable doubt. Section 154 (1) (a) and (2) of the Penal Code under which the appellant was charged provides that: "154 (1) Any person who (a) Has carnal knowledge o f any person against the order o f nature, com m its an offence, and is iiab ie to im prisonm ent fo r life and in any case to im prisonm entfo r a term o fnotless than th irty years. (2) Where the offence under subsection (1) o f th is section is com m itted to a ch ild under the age o fte n years the offender sh a ll be sentenced to life im prisonm ent" In Abdallah Kondo v. Republic (supra) this Court interpreted the above provisions to mean the law prohibits the very act of carnal knowledge against the order of nature. There is no doubt that this section intends to punish the offense of sodomy. The said offence under section 154(1) (a) of the Penal Code consists in the carnal knowledge committed against the order of nature by a person with a man, or in the same unnatural manner with a woman. Under the section, consent of the passive partner is wholly immaterial. When the offence is committed against the child below the age of ten years, the offender is liable to be sentenced to life imprisonment in terms of section 154 (2) of the Penal Code. The essential ingredients to prove the unnatural offence under section 154 (1) (a) of the Penal Code are thus: one, the accused had carnal intercourse with a man or a woman; two, it was against the order of nature; and; three, there was penetration. The maximum punishment for the offence is imprisonment for life and in any case to jail term for not less than thirty years. When the assault is done on a minor below the age of ten, the punishment is life imprisonment. We have considered the prosecution evidence on how the offence was committed. The incident occurred in the bush outside the centre of the village. The victim went missing from 17.00 hours when she was sent to buy cooking oil from a nearby shop until around 20.00 hours when she was found at the scene. PW1 testified that after the victim disappeared, he spoke to PW3 and agreed to mount a search in the whole village. The search did not bear fruits until it was carried in the bush. In the company of PW3, the team saw the appellant running away from the scene in the bush. Apparently, the trio found the victim in a bad shape, naked and fully buggered at the same place that the appellant was seen running from. Upon being asked by PW3, the innocent child disclosed that she was carnally known against the order of nature. That disclosure was corroborated by PW4, the medical doctor who examined the victim and found out that, there was evidence of canal penetration by a blunt object. We noted that, the appellant's cautioned statement (exhibit P2) was expunged from the record by the first appellate on the ground that it was not read out after being cleared for admission. On that account, we cannot refer to its contents in corroborating the above stated pieces of evidence. The appellant challenged his identification contending that it was dark in the night, the scene was surrounded with trees which potentially blocked the good vision. He also questioned the source of energy for the torches that illuminated him. However, the evidence on record paints a contrasting picture from what the appellant suggests. The record shows each of the first prosecution witnesses, namely: PW1, PW2 and PW3 carried a torch and the light produced was strong to illuminate the appellant and the scene. It should be noted that, on examination, PW2 said her torch used solar power and was very energetic. On cross examination, PW3 stated that: "... You ran from the bush and we iden tified you. I lig h t up a torch when you were running." On examination by the public prosecutor, PW1 was recorded saying that: "...we went to the bush and we saw the accused person running from the bush. With the sa id torch lig h t we iden tified him ..." In the circumstances, we are convinced that the light from the three torches was strong enough for positive recognition of the appellant who was well known to PW1, PW2 and PW3. Considering that, when the appellant was running away, the three witnesses were just three paces away from him, we are content that his recognition could not be mistaken. Regarding the punishment, the appellant was sentenced to life imprisonment because the victim was a minor below the age of ten years. It is settled law that age of the victim may be proved by the victim him/herself, parent, guardian, medical practitioner and or through production of a birth certificate (Isaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 [2016] 72CA 218 (26 April 2016, TANZLII); and; Rutoyo Richard v. Republic, Criminal Appeal No. 114 [2020] TZCA 296 (16 June 2020, TANZLII). In this case, PW4, the medical doctor, testified that the victim was five years old. Under section 154 (2) of the Penal Code, life imprisonment is the prescribed punishment for the person who assaults a child below the age of ten years against the order of nature. We therefore agree with the first appellate court that the sentence meted out to the appellant was appropriate. For the foregoing reasons, we are satisfied that, the prosecution proved its case against the appellant beyond reasonable doubt. In the result, this appeal is dismissed. DATED at MUSOMA this 18th day of February, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 18th day of February, 2025 in the presence of the appellant in person via virtual court from Musoma Prison and Mr. Nico Malekela, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL