MOHAMED JUMANNE VERSUS REPUBLIC

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA CRIMINAL APPEAL NO. 18936 OF 2024 (Arising from the Criminal Case No 54 of 2023 in the District Court of Singida) BETWEEN MOHAMED JUMANNE SALANDA…..…………..APPELLANT VERSUS THE REPUBLIC………………………………... RESPONDENT JUDGMENT Date of last order: 11/09/2024 Date of Judgment: 06/11/ 2024 LONGOPA, J.: This is an appeal against the conviction and sentence of the appellant to serve life imprisonment for unnatural offence committed against the victim a seven years boy child contrary to section 154(1)(a) and (2) of the Penal Code, Cap 16 R.E. 2022. It was alleged that on 27th day of March 2023, at VETA area, Utemini Ward Unyakumi Division within District and Region of Singida, the appellant herein did have carnal knowledge of one XYZ (the name withheld for child protection), a child of seven years. 1|Page It was upon hearing of five prosecution witness and a single defence witness that the trial count found the accused guilty to the offence and sentenced him to serve a life imprisonment. On 10th July 2024, the appellant being aggrieved by the decision of the District of Singida appealed against the whole decision of District Court of Singida delivered by Hon. F. E. Luvinga, SRM dated on 27/03/2024 on the following grounds, namely: 1. That, the trial Court erred in law and facts on considering the doubtful evidence adduced by medical doctor (expert evidence). 2. That, the trial Court erred in law and facts by giving decision in favor of prosecution side while prosecution failed to prove the case beyond reasonable doubt. 3. That, the trial Court erred in law and facts by relying on fabricated evidence adduced by prosecution. 2|Page 4. That, the trial court erred in law on admitting the affidavit regarding to the age of victim without read loudly in court after admission. 5. That version of events narrated by PW 1 in her testimony are totally doubtful. The appellant enjoyed the legal services of Jesca Makalwe, learned advocate while the respondent had services of Ms. Victoria Njau, learned State Attorney. The learned counsel on 11th September 2024 argued the appeal orally. The Counsel for the appellant, Ms. Jesca Makalwe, learned advocate restated that there are five grounds of appeal in this instant appeal. The 2nd and 3rd grounds of appeal shall be argued jointly while other grounds shall be argued separately. On 1st ground of appeal relating to doubtful evidence of medical doctor, it was submitted that the medical doctor stated to have examined the victim and found bruises but there was not description on extent of the 3|Page bruises that were part of discovery. There were no sperms found on the victim. The medical doctor did not establish that there was penetration as he concentrated on bruises on the anus of the victim. As such, it was argued that it was wrong/error for the medical doctor to conclude that victim was penetrated against the order of nature. In case of Abdallah Mwanangoya versus Republic, Criminal Appeal No. 62 of 2022 (TANZLII) at page 6 observed that where there are no sperms and the sphincter was intact thus there was no sodomy. It was stated that in the instant appeal there were no sperms except the bruises. There was no direct evidence that penetration was there. For the 2nd and 3rd grounds relating to failure to prove the case beyond reasonable doubt, it was submitted that at page 5 of the proceedings, PW 1 stated that at around 23:45 hours heard a bang at the door, he went to the door and opened it finding the victim standing whereas the victim entered the house. After questioning of the victim stated that he has been penetrated against the order of nature. PW1 told the victim to go to sleep. 4|Page Under normal circumstances, if a child of seven years child is penetrated against the order of nature that victim would have experience serious pains that could not have allowed him to sleep where the penetration against the order of nature. It was required that the child be taken to hospital. It is doubtful that until 23:45 hours the child was not at home and the whereabouts were unknown, PW 1 could have not remained silent without taking any measures to take necessary steps. It is submitted that having heard the ordeal from the child; PW 1 did not take any action. PW 1 did not see the appellant at all. In Ramadhani Juma @ SAMUNGA versus Republic, Criminal Appeal No 86 of 2022, at page 11 where the Court stated that proof of penetration must be there, failure to adduce the same is failure to meet criteria of section 3(2)(a) of the Evidence Act, Cap 6 R.E. 2022. Further, on the 4th ground, the victim’s affidavit regarding age was not read in Court. At page 6 of the proceedings, it is indicated that the affidavit of birth was received in court without the same being read. This contravened the legal principle laid in various cases. For example, in the 5|Page case of Shaibu Said Mtumbila versus Republic, Criminal Appeal No 60 of 2021 at page 4 -tendered the document, once admitted the contents should be read loudly in court. It was reiterated that when a document that is not read should be expunged from records of the Court. Moreover, on 5th ground it was submitted that the circumstances narrated by PW 1 creates reasonable doubts. In the evidence of PW 1, it was stated that around 18:00 hours the victim was playing but vanished in a thin but PW 1 never took any action. It was reiterated that around 22:30 hours, PW 1 went straight to the appellant to ask the whereabouts of the victim as the appellant was living far from the PW 1’s place. There was no neighbour asked nor informed the local leadership or police on the absence/loss of the victim. The action of going straight to the appellant creates doubt that allegations are fabrication. It was prayed that this appeal be allowed, the conviction and sentence be set aside. It was also prayed that any other remedy to be granted include setting free the appellant. 6|Page On the other Ms. Victoria Njau, learned State Attorney objected all the grounds of appeal and state that the conviction and sentence were correct thus it is supported. On the 1st ground of appeal regarding medical doctor evidence, it is submitted that PW 4 at pages 14-15 stated that he examined the victim at the anus found the bruises when inserted the fingers the victim had experienced strong pains on the anus and he found that the victim was penetrated. PW 4 tendered PF 3 which was marked as Exhibit P.2, the same was read out before the Court. The slightest penetration is sufficient to prove the case. In Ramadhani Juma @ Samunga, at page 8 cited the Leonard Raymond versus Republic which stated penetration of male organ in the anus of the victim however slight it is amount to commission of unnatural offence. On 2nd and 3rd grounds on proof beyond reasonable doubts, it was submitted that PW 1 stated about the efforts made. At page 4 of the proceedings from 20:00 hours went to look for the child at the Mosque. She then called the child’s uncle one Nassoro and went to the appellant’s 7|Page home in cause of looking for the child. She waited for child at night as she was not asleep. The victim informed PW 1, at page 8-9 that the appellant is the one who molested the victim sexually against the order of nature. It was night hours and all other actions were continued in the morning including taking the victim to the hospital. Evidence of PW 2, at page 8 stated the manner in which the offence against the order of nature was committed and the circumstances prevailed. This was corroborated by PW 4 and PW 1 who is the medical doctor and the victim’s grandmother respectively. There is nowhere in the evidence where any person had testified any possibility of quarrel between the appellant and PW 1. On 4th ground relating to challenging of Exhibit P.1 that it was not read in court; it was submitted that such assertion was true. Even if the same is expunged as required by the law, Exhibit P.1 intended to establish age of the victim only whereas PW 1 stated that age is 7 years as revealed 8|Page in page 4 of the proceedings. Also, at page 15 of the proceedings, PW 4 medical doctor established the age of the child. In Isaya Renatus versus Republic, Criminal Appeal No 542 of 2015, at page 8 -the modality of proving age is through oral testimony of the victim, relative, medical doctor report or school records. It was reiterated that eventhough Exhibit P.1 is expunged from the record does not affect the case as there are testimonies orally and documentary in nature remaining on record that were not controverted. On 5th ground, it is submitted that evidence of PW 1 was not creating any doubts as the witness had demonstrated efforts taken to look for the child victim. At page 5, PW 1 stated to have checked the victim’s anus, found feaces and discharge from anus. This evidence was only corroborating the evidence of PW 2. This ground has no merits. It was the respondent prayer at this juncture that the appeal at hand deserves to be dismisses for lack of merits. 9|Page In rejoinder, the counsel for the appellant stated that there was no enough efforts shown by PW 1 took to find the victim. The witness, PW 1 did not report to the leadership of the vicinity. However, PW 1 was not cross examined. Further, it was reiterated that with regard to age of the child, it was stated by PW 1 said the age was 7 years while the victim said that he is 8 years. That does not establish the age as it is not the same. Having heard the parties on all the grounds of appeal, this court dispassionately considered the available records in form of the proceedings, judgment and petition of appeal to ascertain truthfulness of the grounds of appeal. It is settled principle that for the offence of unnatural offence under section 154(1)(a) and (2) of the Penal Code, Cap 16 R.E. 2022, there must be evidence to establish the following aspects. First, there was penetration of another person’s anus. Second, it is the appellant who penetrated the victim. Third, the victim was below eighteen (18) years. 10 | P a g e In Hassan Kamunyu vs Republic (Criminal Appeal 277 of 2016) [2018] TZCA 259 (25 July 2018), at pages 13-14, the Court of Appeal reiterated that penetration may be described using different words depending on the cultural background, upbringing, religious feelings, the audience listening, and the age of the person giving the evidence. Thus, the Court stated that: Thus, words like "[he] removed my underwear and started intercoursing me" in Matendele Nchanga @ Awilo (supra), "sexual intercourse" or "have sex" in Hassan Bakari @ Mamajicho (supra), "[he] undressed me and started to have sex with me" in Nkanga Daudi Nkanga (supra), "kanifanyia tabia mbaya" in Athumani Hassan (supra), "alinifanya matusi" in Jumanne Shabani Mrondo (supra) or "he put his dudu in my vagina" in Simon Erro (supra) or "did sex me by force", "this accused raped me without my consent", "While this accused was sexing me I alarmed" and "fortunately one B s/o T came to my home 11 | P a g e and he found this accused still sexing" in Baha Dagari (supra) were, though not explicitly described, taken by the court to make reference to penetration of the penis of the accused person into the vagina of the victim. The ingredients of the unnatural offence were reiterated in the case of Sospeter John vs Republic (Criminal Appeal 237 of 2020) [2021] TZCA 329 (28 July 2021) (TANZLII), pp.17-18, the Court of Appeal stated that: We wish to start with unnatural offence, the appellant was charged with two counts of unnatural offence contrary to section 154 (1) (a) of the Penal Code. For such an offence to stand, there ought to be proof of penetration, however slight into the anus, with or without consent (see the case of Joel s/o Ngailo v. The Republic, Criminal Appeal No. 344 of 2017 (unreported)). PW6 corroborated that evidence because after he had examined the girls' anuses, he found bruises and blood. He thus concluded that there 12 | P a g e was forceful penetration by sharp or blunt object in the girls' anuses. There is also on record the evidence of PW7 who established the girls' age to be below 10 years. In totality, we are satisfied that the evidence brought before the trial court was enough to prove the essential ingredients of unnatural offence contrary to section 154 (1) (a) of the Penal Code. In the instant appeal, the record reveals that PW 2, victim stated on fateful date during the evening the appellant called the victim, took him in his house, undressed victim’s clothes, the appellant removed his trouser and penetrated the anus of the victim. According to the victim, the appellant took his “dudu” and inserted it in victim’s anus while blocking he mouth of the victim with a hand to prevent making noise. The appellant threatened to kill the victim if he informed anyone. It was PW 2 that upon completion of the incident, the appellant dressed up the victim and took him at home. 13 | P a g e This evidence was corroborated by PW 4, a Clinical Officer who stated on 28/03/2023 examined the victim, found there were bruises on the anus and that victim was feeling severe pains when the anus was touched thus, she confirmed that there was penetration. It was PW 4 that she gave painkillers to victim and filled in PF 3 that was tendered and admitted as Exhibit P. 2. In my assessment, penetration element was lucidly established in the circumstances of this appeal. Evidence of PW 1, PW 2 and PW 4 leaves no doubts that the victim was penetrated by the appellant. The evidence of PW 2 was the evidence of the victim of sexual offence which is credible and reliable. I state so for two main reasons. First, it is the evidence of the victim of sexual offences that is regarded as best evidence in sexual offences. In the case of Hamis Mahendi vs Republic (Criminal Appeal No. 2 of 2021) [2024] TZCA 985 (25 October 2024), at pages 9-10, the Court of Appeal stated that: 14 | P a g e It is settled law that, although the true evidence of rape has to come from the victim, such victim must be a credible and reliable witness and this is what is embraced in the provisions of section 127 (6) of the Tanzania Evidence Act [CAP 6 R.E. 2019]. It is incumbent on the trial court to consider the credibility of a witness and record reasons for the purpose of future assistance on the appellate Court to determine as to whether the credibility of a witness has been considered. The second reason for PW 2 evidence being considered credible and reliable is that it is consistent and corroborated by all other prosecution’s evidence. Further, this evidence was never challenged by the appellant in cross examination about when the victim’s grandmother talked to the appellant. It is an established law in this jurisdiction that failure to cross examine amount to admission of the evidence. This was a principle in the case of Issa Hassani Uki vs Republic (Criminal Appeal No. 129 of 2017) 15 | P a g e [2018] TZCA 361 (10 May 2018) (TANZLII), at page 16, the Court of Appeal reiterated that: It is settled in this jurisdiction that failure to cross-examine a witness on a relevant matter ordinarily connotes acceptance of the veracity of the testimony. I have no flicker of any doubt in my mind that the element of penetration of the victim’s anus was proved beyond all circumspection. The prosecution evidence was water tight in this ingredient. With regard to age, there are two types of evidence on record. First, oral testimonies of PW 1, PW 2 and PW 4. Second, Exhibit P2 which is PF 3 was tendered and admitted with no objection. Thus, age was sufficiently proved as per principle in the case of in the case of Daudi Anthony Mzuka vs Republic (Criminal Appeal 297 of 2021) [2023] TZCA 165 (30 March 2023), at page 13, the Court of Appeal observed that: It is trite law that the victim's age can be proved through a parent, guardian, school teacher, birth certificate or the 16 | P a g e victim herself (see Issaya Renatus v. Republic, Criminal Appeal No. 54 of 2015 (unreported). In this case, the victim's father (PW2) testified as such that PW1 was 8 years old. At any rate, it was not suggested that PW1 was above the age of 18 years in which case consent would have been necessary. The principle was also stated in the case of Hassan Bundala @ Swaga vs The Republic (Criminal Appeal 386 of 2015) [2015] TZCA 261 (23 February 2015) (TANZLII), at page 4 where the Court of Appeal observed that: Not only was the age of the victim mentioned in the charge sheet but the medical evidence through PW6 and the PF3, exhibit PE1 showed that the victim was aged 8 years when she was raped. The appellant did not challenge this evidence then and he cannot be heard at this stage to say that the age of the victim was not proved. 17 | P a g e Indeed, in the instant appeal there is sufficient evidence in form oral evidence from the guardian, victim and the clinical officer that the victim was underage. Also, Exhibit P.2, the PF 3 contains the age of the victim to be 7 years old. Thus, both elements were proved. At this juncture, I am certain that 2nd, 3rd and 5th grounds of appeal are devoid of any merits and I proceed to dismiss them in their totality for being preferred unmeritorious. The next aspect is on the role of expert opinion whereas the appellant challenged the clinical officer’s evidence that it is doubtful. I must state at the outset that this ground lacks merits. There is nothing doubtful about the evidence of the clinical officer. The reasons are two. First, the appellant did not object the tendering of the PF 3 as Exhibit P. 2 in this case. Second, the appellant did not raise any doubts on such evidence as he was afforded opportunity to cross examine and he did so by asking two main aspects whether the clinical officer knows the appellant or otherwise and that whether PW 4 was at the scene. 18 | P a g e In the case of Kasim Seleman @ Gamale vs Republic (Criminal Appeal No. 635 of 2020) [2024] TZCA 722 (14 August 2024) (TANZLII), at pages 11, the Court of Appeal observed that: However, it is the position of the law that medical doctors, when called to testify in court are not witnesses of facts, rather are experts in their field providing expert opinion. The expert opinion is admissible to furnish the court with scientific information, which is likely to be outside the experience and knowledge of a trial judge or magistrate. It is also a position of legal practice that the court is not bound to follow such expert opinion, when there is enough and cogent evidence to arrive to the conclusion without assistance of that expert opinion. But when there is a serious doubt, the scientific proof will help the court to have a clear position of the alleged offence. See; Edward Nzabuga v. R, Criminal Appeal No. 136 of 2008 (unreported). 19 | P a g e In law, expert opinions are related not binding to courts. They assist the court on issues that calls for expertise. The medical report is supporting evidence to the oral testimonies in establishing the ingredients of the offence. In the case of Christopher Marwa Mturu vs Republic (Criminal Appeal 561 of 2019) [2022] TZCA 652 (27 October 2022), at 10- 11 the Court of Appeal of Tanzania, stated that: Furthermore, in sexual offence cases, the testimony of the doctor is not the only evidence to prove the offence, other evidence on the record can as well prove it. Specifically, in Edward Nzabuga (supra), the Court having considered as whether the expert's opinion or production of medical report (PF3) overrides oral evidence by witnesses who witnessed the incident, it stated that the sexual offence can be proved orally without an expert opinion or oral evidence by experts i.e. without a doctor who examined the victim testifying in court and/or tendering a PF3. Similarly, in the case at hand, we are satisfied that, even 20 | P a g e without the evidence of the doctor, the testimony of PW2 and PW3 is quite sufficient to prove the offence the appellant was charged with. The only ground that holds water is the ground related to tendering of Exhibit P1 where there was failure to read the contents of the document tendered. It violated the established principles of the law of this country. The law is settled that any documentary or exhibits must undergo three processes in tendering them. In the case of Robinson Mwanjisi and Three Others vs. R. [2003] T.L.R. 218, at 226, the Court of Appeal stated that: Whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted, before it can be read out. Reading out the contents of the document so admitted is an important stage of the trial in the sense that it avails the accused with the right to prepare its defence well beforehand. It explains all or some of the ingredients of the offence for which the accused stand charged. 21 | P a g e In the case of Erneo Kidilo & Another vs Republic (Criminal Appeal 206 of 2017) [2019] TZCA 253 (21 August 2019), at pp.11-12, the Court of Appeal addressed the importance of reading out the contents of the exhibits so admitted. It stated that: We do not agree with the learned Senior State Attorney for the respondent for suggesting that the appellants must be taken to have known the facts contained in exhibits P4 (Inventory Form), P5 (Trophy Valuation Certificate), and P6 and P7 (the appellants' confessional statements) which were not read out in court. Contents of these exhibits carry detailed facts which affect ingredients of the counts preferred against these appellants. The case of LACK KILINGANI VS. R. (supra) is relevant to our proposition that where an accused person pleads guilty to an offence, the obligation to read out the facts contained in the tendered exhibits goes a long way to fully appraise the accused concerned all of facts that are locked in the 22 | P a g e exhibits. This appraisal in light of full knowledge of facts in exhibits will enable the accused person to either accept the facts therein as true, or even reject them and change his plea to NOT GUILTY. In other words, an unequivocal plea of guilty cannot be sustained where contents of admitted exhibits were not read out to any person charged with an offence. Further, the importance of reading out the contents of a document and its legal implications once the same is not adhered to have been articulated in different case laws. In the case of Jumanne Mondelo vs Republic (Criminal Appeal 10 of 2018) [2020] TZCA 1798 (6 October 2020), at pp.15-16, the Court of Appeal held that: It is now settled law that once a document has been cleared for admission and admitted in evidence, it must be read out in court. Failure to do so occasioned a serious error amounting to miscarriage of justice. The essence of reading the tendered document was succinctly stated in 23 | P a g e the case of Joseph Maganga and Dotto Salum Butwa v. The Republic, Criminal Appeal No. 536 of 2015 (unreported) thus: “The essence of reading out the document is to enable the accused person to understand the nature and substance of the facts contained in order to make an informed defence. Failure to read the contents of the cautioned statement after it is admitted in evidence is a fatal irregularity.” Accordingly, Exhibit P1 ought to be and we do hereby proceed to expunge it from the record because there was a flouting of procedures in tendering and admitting it. The effect of failure to read the contents of exhibit is for the same being expunged from the record. I shall proceed to expunge Exhibit P.1 from the record of the case. However, it must be noted that expunging of Exhibit P1 which is the basis of the 4th ground does not impair the prosecution evidence on record. 24 | P a g e The trial court magistrate thoroughly analysed the case of the prosecution and defence. It was found that the offence was proved as there was penetration as per evidence of the victim and that of medical personnel. There was positive identification of the accused as the victim described the whole ordeal. There was no serious challenge of the prosecution evidence to raise any reasonable doubts thus the defence case did not shake the prosecution evidence pointing on appellant’s involvement in the commission of the offence. In the case of Hezron Ndone vs Republic (Criminal Appeal No. 263 of 2021) [2024] TZCA 15 (6 February 2024) (TANZLII), at pages 12- 13, the Court of Appeal stated that: It is momentous to state that, in our criminal justice system like elsewhere, the burden of proving a charge against an accused person is on the prosecution. This is a universal standard in all criminal trials and the burden never shifts to the accused. As such, it is incumbent on the trial court to direct its mind to the evidence produced by 25 | P a g e the prosecution in order to establish if the case is made out against an accused person. This principle equally applies to an appellate court which sits to determine a criminal appeal in that regard. In our earlier decision in Phinias Alexander and Others v. Republic, Criminal Appeal No. 276 of 2019 (unreported), we cited with approval the decision in Jonas Nkize v. Republic [1992] T.L.R. 214 in which the High Court stated that: "the general rule in criminal prosecution that the onus of proving the charge against the accused beyond reasonable doubt lies on the prosecution, is part of our law, and forgetting or ignoring it is unforgivable, and is peril not worth taking." The term beyond reasonable doubt is not statutorily defined but case laws have defined it, in the case of Magendo Paul & Another v. Republic (1993) T.L.R. 219 the Court held that: “For a case to be taken to have been proved beyond reasonable doubt its evidence must 26 | P a g e be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed.” I am satisfied that the available evidence on record and the analysis made by the trial magistrate established within parameters of the law that an unnatural offence was committed by the appellant against the victim. There is nothing to fault save for Exhibit P 1 that was expunged for failure to read it in the court during the proceedings immediately after its admission. This appeal generally lacks merits and I shall proceed to dismiss it entirely. The decision of the trial court is upheld for being valid and informed by evidence on record. It is so ordered. DATED at DODOMA this 6th day of November 2024. E.E. LONGOPA JUDGE 06/11/2024. 27 | P a g e