20181219 TZHC Dodoma4

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 32 OF 2018 (Original Criminal Case No. 174 of 2016 of the District Court of Iramba District at Kiomboi) MOHAMED S/O SHABAN @ MWANGU ..........................APPELLANT JUDGMENT 1411112018 & 1 9/12/2018 KITUSI, J. The appellant Mohamed Shaban © Mwangu was charged with and convicted for Unnatural Offence Contrary to Section 154 (1) of the Penal Code, the prosecution alleging that on 30th November, 2010 at about 08:00 hours at Nkungi Village Mkalama District in Singida Region, he willfully and unlawfully had carnal knowledge of one Modesta Elias a Nyiramba aged 14 years, and pupil of Standard VI at Nkungi Primary School against the order of nature. Upon the conviction, the District Court of Kiomboi sentenced the appellant to 30 years imprisonment. This is an appeal against both the conviction and sentence raising 8 grounds on the basis of which this court is being invited to quash that conviction and set aside the sentence. 1 IC The prosecution called four witnesses to establish the truth in the allegation placed against the appellant. The said witnesses narrated the following story; Modesta Elias (PW1) who stated that she was 15 years was a pupil of Standard seven at Nkungi Primary School. She is an acquaintance of Eva Mbilinyi (PW2) aged 12 years (at the time of testifying) a pupil of standard three at Kidereko Primary School. According to PW2 she was the first to meet the appellant on the fateful day who made advances at her by stopping her when she was proceeding to school in the morning. He pretended that he wanted to send her to do an errand but PW2 declined and proceeded on her way, only to meet PW1 a few metres away, who was moving towards the direction where the appellant was. According to PW1 the appellant employed the same trick to her and this time when the girl refused, he grabbed her by force and thereafter he allegedly led her to his room where he had anal sex with her. PW1 testified on the details of how it all happened. That the appellant having grabbed and lifted her up he covered her mouth by his hand in order to prevent her from screaming and raising alarm. When the appellant had PW1 in the room he allegedly undressed her before taking off his own clothes thereafter laid PW1 on her back then inserted his penis into her anus. PW1 said she could not raise any alarms because of the 2 muffle and when the appellant was done he instructed her to dress up and go to school, where she was warned from telling anybody about it. On the other hand, PW2 who had seen what had befallen PW1, informed PW1's parents about the appellants acts. The father Elias Ramadhani (PW3) went to PW1's school where he found her, but she could not admit to have been involved in any disgraceful act. Only later was PW1's mother able to get her disclose the truth that she had been sodomized by the appellant. A report of the matter was made to the police who issued a PF3, and it was Dr Gerald Minja (PW4) who examined PW1. PW4's conclusion was that PW1's anus had been penetrated into by a blunt object like a penis, ruling out a stick because of the nature of the injuries. In defence the appellant, a student of Gonda Secondary School, not only denied committing the offence but also said he did not even know what sodomy means. After narrating how he was arrested, the appellant referred to the matter as a concoction by PW1's aunt who had previously wanted an affair with him but he had turned her proposal down. He stated that the said aunt visited him while in police custody and told him that she was the one behind the plot to even scores with him. The appellant gave a detailed account of the said woman's advances and how he picked a conflict by turning her down and by reporting the matter to village and church leaders. 3 It was common knowledge that the appellant was living in the house belonging to the said PW1's aunt and he conceded during cross- examinations that PW1 had ever visited the said aunt, during which she confided to him that the said aunt was HIV positive. The appellant criticized the evidence adduced by the prosecution as being inconsistent and that of PW4, the medical doctor, for not showing that there were sperms in PW1's anus. The learned trial Resident Magistrate concluded that evidence of presence of sperms in a victim's body is not necessary to prove a sexual offence, then he proceeded to accept as true the versions of PW1 and PW2 that the appellant carried PW1 into his room by force then had anal sex with her. The basis for the trial court's conviction that the appellant had sodomized PW1 was circumstantial, because according to him there was no direct evidence of an eye witness to the act. He properly directed himself to the requirements that must be met before finding a conviction on circumstantial evidence, citing the case of Hassan Fadhili V. Republic [1994] TLR99. As for the accused's defence, the trial court rejected it saying that although the story about PW1's aunt's anger might be true, it cannot be a defence in this case. In addition the trial court made a finding as regards 4 the appellant's age. At the time of testifying, the appellant said he was 17 years and a student of Form Three at Mkalama Secondary School. However the learned trial Magistrate took the view that the appellant's age was 20 years as shown on the charge sheet because he had failed to prove that he was 17. The trial Magistrate found support in the case of Mwita and others V. Republic [1977] TLR 34 for requirement of proof by the appellant as to his age. For the foregoing reasons the trial court convicted the appellant and sentenced him to a jail term of 30 years as earlier shown. The appellant has raised 8 grounds to impugn the decision of the trial court, and I shall just list their substance as follows:- The law regarding taking of evidence of children of tender years was not observed. That the issue as to the age of the victim was not resolved. That there was no evidence from the school where the victim was studying to prove that the matter was indeed reported. That evidence of the appellant's identification at poilce cell was unreliable and should not have been acted upon. That the PF3 was not tendered and/or that the appellant was not given an opportunity to comment on it. That the age of the appellant was not resolved. 5 The med/cal examination report was not dosely scrutinized. That the defence case was not considered. At the hearing of this appeal the appellant stood in person, while the respondent Republic was represented by Ms. Bertha Kulwa, learned State Attorney. She was quick to announce that she is in support of the conviction and sentence. She was the first to submit on the appeal, the respondent having elected to listen to her first. On the first ground the learned State Attorney submitted that the law as it stands now does not require the conducting of a voire dire test, citing the Written Laws Misc. Amendments Act No. 2 of 2016. As regards the age of the victim she submitted that age of a victim is irrelevant in the offence of unnatural offence. On the 3rd ground in which the appellant attacked the prosecution for not calling witnesses from PW1's school, she submitted that it is the prosecution which has the duty to call witnesses it considers material. The State Attorney submitted, however, that the evidence of PW1's father was sufficient. On the complaint of visual identification appearing on ground No. 4 she submitted that the offence took place in the morning such that there was no possibility of a. mistake being done by PW1 and PW2, regarding identify. About the PF3 not being rendered it was submitted that it was tendered without any objection from the appellant. dIc Under the sixth ground it was submitted that during the Preliminary hearing the appellant's age did not feature as among the disputed facts. The learned Stated Attorney was of the view that it was the duty of the appellant to disprove the prosecution's contention that he was 20 years. Lastly it was submitted that the defence case was considered. In his rejoinder the appellant still submitted on the contradiction regarding the appellant's age. He also repeated his contention that the teachers ought to have come to testify. He repeated the fact that PW4 did not identify the perpetrator of the offence and also the fact that had he been given an opportunity to call witnesses they would have proved that he was 17 years. He repeated the fact that he was a scholar at Mkalama Secondary School. I shall make two general observations and findings which she help address some of the grounds of appeal simultaneously. The first is that which was stated in the case of Godi Kasenegala V. Republic Criminal Appeal No. 10 of 2008 CAT (unreported) and cited in Sylvester Boniphace V. Republic, Criminal Appeal No. 421 of 2015, CAT (unreported) that; "It is now settled that the proof of rape comes from the prosecution herself" It is also now settled that in sexual offences the victim is the best witness. 7 In my view this principle is enough to address the appellant's complaint about failure to call the teachers as witnesses and the alleged deficiency in the evidence of visual identification by the victim's father. These complaints being built on a wrong assumption that the victim's testimony was insufficient are dismissed for want of merit. Secondly in this case the age of the victim is only relevant in sentencing, if she was under the age of ten years at the time of the alleged offence, or for purposes of testifying if she was 14 years or below that age at the time of testifying. This is in terms of section 154 (2) of the Penal Code and section 127 (5) of the Evidence Act, respectively. Therefore, since there is no suggestion that PW1 was of the age of ten years or below, and since she was 15 years at the time of testifying, the complaint about her age is neither here nor there, and of no consequence. At this stage it is convenient if I also discuss the issue of the appellant's age for whatever its consequences. The trial court's finding on the issue of the age of the appellant was that he was 20 years at the time of the alleged commission of the offence, and the learned State Attorney submitted in support. The learned trial Magistrate's finding was based on his reasoning which I reproduce below; 8 "Unfortunately at his defence he failed to produce evidence for us to believe he is of 17 years and not 20 years..." On her part Ms Kuiwa State Attorney submitted that during the Preliminary Hearing the appellant did not dispute the age of 20 years that had been cited on the charge sheet, and that it was his duty to disprove the age alleged by the prosecution. On the other hand the appellant submitted that if he had the opportunity he would have called witnesses to prove that he was 17 years. With greatest respect to the trial Magistrate and the learned State Attorney, during the Preliminary hearing the appellant did not admit that he was 20 years old. The appellant had no duty other than to raise a reasonable doubt which, in my view, he did by alleging that he was 17 years. The conclusion that he was 20 years was based on a wrong principle of criminal law that the accused had a duty to prove a fact. I do not go along with it. I now turn to the substance of the alleged sodomy. In approaching this task I am subscribing to a statement by the court of Appeal in Philemon Hamisi V. Republic Criminal Appeal No. 258 of 2006, (CAT) (unreported) that; "We are aware of the fact that evidence is weighed and not counted, but each case must be decided on the basis of its own facts." Towards that end I shall weigh the evidence of PW1 along with that of the appellant. Before I proceed I commend Hon. Mbelwa, Resident Magistrate for being well informed on the new law governing the taking of evidence of children of tender age. The learned Magistrate had PW1 andPW2 promise to tell the truth and not lies. I shall examine if PW1, on whose testimony the case must standi, told the truth. During her testimony, PW1 said she had never met the appellant before the date of the alleged sodomy. However in his defence especially during cross - examinations the appellant stated that he was living in the house of PW's aunt with whom he had a conflict, and that PW1 had ever visited the house. It is during this time that PW1 confided to the appellant that the said aunt was HIV positive. If this version by the appellant is true, then PW1's story cannot be said to have been nothing but the truth. The learned trial Magistrate did not address himself to this aspect, so as to make a finding this or the other way. What is clear on record is that the trial court made no finding on the appellant's assertion that the case was borne out of revenge. The relevant part reads; 10 "I am aware of accused's defence that he totally deny (sic) to have commit (sic) the offence charged and narrated a lot on victim's aunt whom he tried to make us believe this is vengeance on this anger of victim's aunt. Unfortunately that is not expected defence on this offence, thouaht (sic) they miaht be true." (underlying mine). If the learned trial Magistrate was of the view that the appellant's defence that the case was a result of his conflict with PW1's aunt, and considering that PW1's testimony would not pass the test for being wholly true, the trial court should have resolved these doubts in favour of the appellant. Had the learned trial Magistrate considered the principle that evidence of both sides needs to be objectively evaluated [Bahati Kabuje V. Republic Criminal Appeal No. 252 of 2014 CAT (unreported] and that failure to consider the defence, a point raised in this appeal, is fatal [Augustino Samson V. Republic Criminal Appeal No. 254 of 2014 CAT (unreported), he would not have arrived at the impugned decision. For the reason that the trial court did not objectively consider the defence case, and that it did not resolve the doubts raised in that defence in favour of the appellant, this appeal is allowed. The conviction is quashed, and the sentence of 30 years imprisonment is set aside. The 11 p p appellant's liberty should be immediately restored if not held for some other lawful ground. I.P.Kj USI JUDGE 19/12/2018 12