Mustafa Juma v Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 15205 OF 2024 (Arising from Criminal case No. 52 of2023 in the District Court of Kiteto at Kibaya) MUSTAFA JUMA..................................................................................... APPELLANT VERSUS THE REPUBLIC...................................................................................RESPONDENT JUDGMENT 17h July and 2dh August, 2024 MIRINDO, J: FHR, a woman with three children at Azimio area, Matui Village, Kiteto District in Manyara Region used to cook and sell maandazi. Mustafa Juma, whom she knew as a cobbler at a market place came on 26 June 2023 to buy maandazi. She gave him her sandals for mending. Mustafa Juma returned in the evening to buy more maandazi. Around seven in the evening, she called her three children to return home but one of them, AH, was missing. AH returned around 8 in the evening and told her mother that Mustafa Juma took him to his house and sodomised him. She immediately reported the matter to Matui Councillor, Saidi Abdallah Ndiboi, who communicated with police and arranged 1 for his arrest o on the same day. He was subsequently charged with unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [Cap 16 RE 2022] before Kiteto District Court. At the trial he denied the charge and the prosecution called six witnesses in support of the charge. The trial court, being satisfied that the charge was proved beyond reasonable doubt, rejected his plea of alibi that he was on the farm at the time of the incident. It convicted him of unnatural offence and sentenced him to a mandatory sentence of life imprisonment. Mustafa Juma has now appealed against his conviction and sentence by Kiteto District Court on five grounds of appeal. At the hearing of the appeal, Mustafa complained that he was falsely incriminated because he was neither found with the child nor caught flagrante delicto. The learned State Attorney, Ms Mwanaidi Chuma, represented the respondent Republic and argued in support of the conviction and sentence imposed by the trial court. The first, third and fourth grounds of appeal, in their totality, contain a complaint that the conviction is against the weight of evidence. In disposing these grounds of appeal, I will re-evaluate the evidence presented before Kiteto District Court. The victim child, AH, aged five years testified as the first prosecution witness. He testified that Mustafa Juma took him to his house and instructed AH 2 to remove his trousers. Mustafa Juma afterwards undressed and put his penis into AH anus and sodomised him. Although he promised to give him 500/= TZS, he gave him 200/= TZS, escorted AH to a certain distance and left AH to return home alone. On arrival AH found his mother and gave her the 200/= TZS and told her he was given by Mustafa Juma who did "tabia mbaya" with him. So was AH sodomised as he claimed in his testimony? The victim's mother, FHR was the second prosecution witness. She stated that immediately after AH revealed being sodomised, she checked him and found out that his "anus was dirty with" semen "up to his back and shirt." After obtaining Police Form No 3 for medical examination, she took AH to Matui Dispensary. The Dispensary had no equipment to examine the child. They went to Engusero Health Centre. The medical examination was conducted by Dr Hassani Mkwachu who testified as the fifth prosecution witness. The testimony of Dr Mkwachu was that the child's anus was in in pain when he touched it. It also had bruises and faeces. He concluded that the child's anus was penetrated. These findings are confirmed by the medical report in Police Form No 3 that he tendered in court and was admitted without objection from the accused as exhibit PE 1. These portions of evidence point to the conclusion that AH was sodomised on 26 June 2024. 3 The next question for consideration is in connection with the perpetrator of the buggery to AH. As stated at the beginning, Mustafa Juma denied committing buggery. In his defence he stated that he was arrested soon after having evening meal when he returned from farming. He denied knowing the woman or the child they were talking about nor did his relatives know about this incident. The identity of the perpetrator of sodomy in this case largely depends on the credibility of the witnesses who testified at the trial before Kiteto District Court. As already stated, the trial court believed their testimony and held that Mustafa Juma was the perpetrator of the offence. Is there anything to believe or disbelief these prosecution witnesses? In Appreciation of Evidence in Criminal Cases, Bhopal: National Judicial Academy, 2010, at pp 77-78, Justice U.L. Bhat outlined four grounds for believing or disbelieving witnesses: (i) Those which affect the ability, capacity or credibility of a witness to speak the truth. It depends upon knowledge, power of observation, power of memory and power of reproduction. Knowledge depends partly upon accuracy in observation, partly upon memory and partly on presence of mind. Power of expression depends upon a variety of circumstances. (ii) Those which affect his will to speak the truth. A man's will to speak the truth depends upon his education, character, courage, sense of duty, his relation to the particular facts, his mood or humour for the moment etc., in varying degrees. 4 (Hi) Those which arise from the nature of the statement in evidence itself and from surrounding circumstances, i.e., the probability or improbability of the statement. Yardstick of probabilities is to be adopted. Intrinsic worth and animus of witnesses is to be looked into. (iv) The evidence of official witnesses and experts could always be tested with reference to available scientific material Even evidence of eyewitnesses and other lay witnesses could be so tested if the scientific material available is of a reliable nature. In the instant appeal, all the prosecution witnesses were competent to testify. In view of recent amendments to section 127 of the Evidence Act effected by the Written Laws (Miscellaneous Amendments) (No 2) Act, 4 of 2016 and the Legal Sector Laws (Miscellaneous Amendments) Act, 11 of 2023, the first prosecution witness who was four years old was competent to testify, his evidence is admissible. What remains for consideration is the weight to be attached to his evidence. In connection with capacity to speak the truth, all the witnesses have special relationship with the facts constituting the unnatural offence. The first prosecution witness was the victim who not only narrated the main facts constituting the offence but also secondary facts. He recounted how Mustafa Juma lured him to his home, promised to give him 500/= TZS, being instructed to remove his trousers, how Mustafa Juma undressed and sodomised him, 5 escorted him back and gave him 200/= TZS. He also mentioned that his mother took him to "Saidi's place" which in the context of this case means the residence of Matui Councillor, Saidi Abdallah Ndiboi, the third prosecution witness. Immediately upon his return the child victim mentioned the perpetrator to his mother, the second prosecution witness. As stated in the leading case of Marwa Wangiti Mwita and another v. R [2002] TLR 39 at 43:" The ability to name a suspect at the earliest opportunity" bolsters the witness credibility. According to Matui Councillor and the fourth prosecution witness, Saidi Hassani Mwalimu, when they went to the accused's home it was the victim who identified Mustafa Juma. All these factors indicate that the first prosecution witness was a credible witness. Having held that the child victim was a credible witness, I am bound to conclude in the words of the Court of Appeal in another leading case Selemani Makumba v R [2006] TLR 379 that a victim of sexual offence is the best witness. Mustafa Juma was a person known to the second prosecution witness. The second prosecution witness immediately reported the issue of sodomy to Matui councillor, took part in locating the perpetrator, and took the child for medical examination. These factors show that this witness was a reliable one. 6 There is nothing on record for me to question the credibility of the third prosecution witness who was the Matui Councillor. He played a role in locating Mustafa Juma and in tracing the police who eventually arrested Mustafa Juma. It is clear to me that the evidence of these three witnesses sufficiently identify Mustafa Juma as the perpetrator of buggery to the first prosecution witness. The proceedings before the trial court show that Mustafa Juma cross- examined the first prosecution witness and her replies to those questions imply that the witness was asked about the time the act was committed, persons present and how the child victim got home. None of these facts indicate that Mustafa Juma pleaded that he was falsely incriminated. He also cross-examined the second prosecution witness and her replies suggest the nature of the questions asked: who told you about sodomy? Whom did you inform? Have I ever come to your home? Have I ever bought maandazi from you? There is nothing from the cross-examination suggesting false incrimination. Nor is there such a claim in his defence. His defence suggested that he pleaded an alibi that he was coming from the farm at night, was resting after taking the evening meal when the Matui Councillor, the policeman, the fourth 7 prosecution witness arrested him. The trial court considered this defence in fifth and sixth reasons it gave in accepting the prosecution case. While the accused does not carry the burden to prove his alibi, he must introduce some evidence in support of his alibi. In Lusabanya Siyantemi v R [1980] TLR 275, the accused pleaded an alibi to the effect that at the time of the robbery and killing he was at home with his wife. The Court of Appeal approved the reasoning of the High Court that the accused failure to call his wife to testify on this fact negated his plea of alibi. The Court of Appeal approved the statement of law on this point as articulated by the Court of Appeal for Eastern Africa in Lulatikiwa s/o Kabaile alias Rutahaba s/o Kasase v R (1941) EACA 46 at 47: If a person charged with a serious offence alleges that at the time when it was committed he was in some other place, which, if true, could easily be proved, the Court must necessarily attach little weight to his allegation, particularly in the face of such definite evidence of identity as there was in this case. In Ali Salehe Msutu v R [1980] TLR 1 at p.3, the Court of Appeal rejected the one of the accused's alibi because it was "unsupported" while there was evidence which "could easily have been obtained if the alibi had any trace of truth." 8 This statement of law applies with equal force in the instant appeal where the appellant offered no explanation of his plea of alibi. For this reason, I hold that the plea of <?//#/was properly rejected by the trial court. I would like to point out that in cross-examination the child victim seems to have stated that the sodomy took place at 9 PM while the second prosecution witness testified that the child victim returned about 8:00 PM. The third prosecution witness stated that he was at his godown at 7:30 PM when the second prosecution witness came to report the incident. The fourth prosecution witness, a police officer testified that he was directed by phone at 8:30 PM to go Matui Councillor to arrest someone. The fifth prosecution witness, the medical doctor stated that the child victim was brought to Engusero Health Centre at 9:30 PM. I do not consider this variation to be a serious one. One, it might be expected too much for a child of five years to possess a watch or recall the exact time of the incident. Two, the hours mentioned by the second, third and fourth prosecution witnesses cannot always be exact on account that they were in tension to comprehend and investigate sodomy. Thirdly, the variation of hours is not too wide as to raise suspicion. In this connection I would borrow and apply a principle articulated by the Court of Appeal in Manju Salum Msambya v A-G, Civil Appeal 2 of 2002 to the effect that certain variation in witnesses' testimony indicate "veracity whereas exact replication of evidence could suggest coaching": 9 ...Omissions in evidence are normal and natural. It is not possible for witnesses to recall every detail of a speech or the exact words used but the essentials thereof. In fact omissions better indicate veracity whereas exact replication of evidence could suggest coaching. A trial judge would, of course, be entitled to reject the evidence where witnesses are materially in conflict or inconsistent...omissions, however, do not constitute grounds for discrediting a witness. They are largely due to lapse of memory and the way a witness is led in giving evidence. I will briefly deal with the remaining grounds of appeal. In the second ground of appeal, the appellant complained that the trial court erred in not considering that at the material time he was admitted to Mirembe Hospital because he was psychiatric. Like the learned State Attorney, Ms Chuma, it is clear to me that this is a new fact that was never raised in the trial court and there is every reason to reject it. The fifth ground of appeal is that the trial was conducted in violation of procedure. The learned State Attorney argued that this ground has no merit. The appellant did not mention any procedural errors committed by the trial court. I have examined the proceedings of the trial court and I have not found any procedural errors invalidating the proceedings. 10 For these reasons, I conclude that the appeal by Mustafa Juma has no merit. I confirm the conviction and sentence imposed by Kiteto District Court and dismiss the appeal in its entirety. DATED at BABATI this 7th day of August, 2024 F.M. MIRINDO JUDGE COURT: Judgment delivered in chambers this 29th day of August, 2024 in the presence of the appellant in person and in the presence of Ms Mwanaidi Chuma, State Attorney for the respondent Republic. B/C. William Makori (RMA). Right of appeal explained. F.M. MIRINDO JUDGE 11