20100324 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO~ 120 OF 2008 ) (Originating from Kinondoni RMS Court Criminal Case No. 473 /2005) RAMADHANI s/o MOHAMED

VERSUS

REPUBLIC Date of last Order 15/2/2010 Date of Judgment 24/3/2010

JUDGMENT Shangwa, J. The Appellant Ramadhani Mohamed was charged 1n the District Court of Kinondoni with unnatural offence C / S 154 of the Penal Code as amended by the Sexual -Offences Special Provisions · Act No. 4 of 199.8. /•' He was convicted as charged and sentenced to 2 life imprisonment. He was aggrieved with both conviction and sentence. He has now appealed to this court. He is being represented by MS Rutabingwa and Company, Advocates who lodged four grounds of appeal against the decision of the District Court of Kinondoni (Mshasha, RM) given in Criminal Case No. 473 of 2005. The appeal was argued by way of written submissions. First of all, learned counsel for the Appellant submitted that the Appellant's conviction of the offence charged was based on frail evidence. They said that there is variance between the charge and the testimony of P.W.1 as to when the offence was committed. They argued that whereas the charge sheet indicates that the offence charged was committed on 13 th May, 2005 at about 12 hours at Mburahati Barafu area within Kinondoni District, Dar es Salaam Region, P.W. l Talick Selemani who was the victim of the alleged offence told the trial court that the offence was committed on 14th May, 2005 when the Appellant bought him chips and took him inside his house where he had carnal knowledge of him against the order of nature. They contended that the

variance between the 3 between the charge and the testimony of P. W. 1 as to when the offence charged was committed demonstrates the fact that the Appellant was convicted of a non-existent offence. Furthermore, counsel for the Appellant submitted that the evidence of P.W.2 Jena Senyange that on 13 th May, 2005, she was called at school and told that P.W.1 (victim) had not been reporting to school for the past two weeks and that on the same date, she was informed by P.W. l's grandmother that P.W. l was not feeling well because of fever and pain at his buttocks does not prove that the Appellant had carnal knowledge of P.W.1 against the order of nature. Counsel for the Appellant further submitted that at the time when the Appellant was arrested from the shop, those who arrested him referred to him as Ngosha whereas his name is Ramadhani Mohamed, and that even in his testimony before the trial court P.W.1 said that the offence was committed by Ngosha twice and not \,, 4 Ramadhani Mohamed. In addition to that, counsel for the Appellant submitted that P.W.2 who tendered in evidence PF3 was not competent to tender it as she is not a Medical Officer and that therefore she was not in a position to comment on it. They contended that as P.W.2 was not competent to tender PF3 in evidence, the trial court was wrong by relying on it for convicting the Appellant of the offence charged. With

regard to the sentence of life imprisonment which was imposed on the Appellant after conviction, counsel for the Appellant were of the view that such a sentence heavy as it is should not have been imposed on the Appellant without sufficient evidence to prove that he committed the offence charged against him. They requested this court to allow their client's appeal. In reply, the learned State Attorney Mr. Solomon Mihayo submitted inter - alia that P.W.1 knew the Appellant before the incident as he used to see him at the shop. He contended therefore \( 5 that the argument by counsel for the Appellant about the names of the person who had carnal knowledge of P. W. 1 against the order of nature is not relevant. Mr. Solomon Mihayo submitted also that S. 240 (1) of the Criminal Procedure Act [ Cap 20 R.E. 2002] does not describe the person who is competent to tender a Medical Report and that the Appellant did not request the court to summon and examine or make available for cross - examination the person who made the report. He further submitted that the evidence of P.W.1 a child of 9 years old was corroborated by the Medical Report which showed that there was an enlargement and bruises in his anus caused by penis penetration. He prayed the court to dismiss the appeal. Looking at the evidence of P.W. l who is the complainant in this case, it can be seen that his complaint is to the

effect that he was carnally known by the Appellant against the order of nature twice on two different days. Although, he revealed the date and 6 place on which the incident took place for the second time that is on 14/5/2005, he did not reveal the date and place when the incident took place for the first time. He said that prior to the date when the incident took place for the second time that is on 13/5/2005, he was at the accused's shop located at Mburahati area and that the accused called him and gave him a sweet. He further said that when the incident took place for the second time on 14/5/2005, the Appellant bought him chips and took him inside his house, put his clothes off and put him into bed and put his penis on his back upon which he felt pain, cried and shouted but that the Appellant covered his mouth with his hartds, threatened him with a Panga and told him not to say anything and that thereafter he went and informed his aunt about the incident. Now let us assume that when the incident took place for the first time, P.W.1 felt pain, cried and shouted as he did when the incident took place for the second time, why then did he not report the Appellant to his aunt or grandmother as he alleged to have done to his aunt when the incident took place for the second time? 7 Let us also assume that the Appellant did have carnal knowledge of P. W. 1 against the order of nature

two times on different days which means that he had already developed friendly relationship with him by offering him a sweet and chips, for what reason then had he to threaten him with a Panga? Under such circumstances, I think that P. W. 1 told a lie when he said that he was threatened with a Panga by the Appellant when the incident took place for the second time. In fact, it appears also that P.W.1 told a lie to the trial court by saying that when the incident took place for the second time he informed his aunt. According to P.W.2. Jena Senyange, the family members came to know about P.W. l's condition on the 13/5/2005 after being infarmed by the teacher of the Primary School where P.W.1 used to study that he had not been attending school for the past two weeks. 8 In actual fact, further and better particulars about his condition were received by the family members on the same date i.e 13/5/2005 at 10.00 hours when P.W.3 Rehema Juma asked P.W.l as to why he had not gone to school on that day and replied that he . was at Ngosha's place and that Ngosha used to have carnal knowledge of him against the order of nature. As correctly pointed out by counsel for the Appellant, it was not established by the prosecution as to whether or not the Appellant whose name is Ramadhani Mohamed 1s also called Ngosha. In fact, during his cross- examination by the public prosecutor, the Appellant

told the trial court that he knows Ngosha and that he works together with him at the shop and that even at the time of his arrest Ngosha was present at the shop. Now can it be ruled out that the one who used to have carnal knowledge of P.W.1 who is a totally defective Primary School student is someone called Ngosha and not the Appellant whose name is Ramadhani Mohamed? In my view, it cannot be so ruled out. Moreover, young as he was, P.W.1 who was 9 years old at the time of the incident 9 and who had decided not to follow the right path of attending school but to follow the wrong path of truancy -could easily confuse Ramadhani Mohamed to be Ngosha. In general, I agree with learned counsel for the Appellant that it was not correct for P.W. 2 to tender the PF3 as she is not a Medical Officer. The one who ought to have tendered it is the Medical Officer who examined P.W.1 and made observation or remarks about his condition. It is a well established principle of law that in order to win the case, the prosecution has to prove its commission beyond reasonable doubt. However, in this case, the prosecution did not prove its case against the Appellant beyond reasonable doubt. For that matter, the Appellant was wrongly convicted and sentenced to life imprisonment by the trial court and I so find. 10 Consequently, I hereby quash his conviction, set aside his sentence of life imprisonment and order that he should be released from prison unless he is detained therein on another matter or cause. ~ A.Shangwa JUDGE. 24/3/2010 Deliv;ered in open court in the presence of Mr. Brash for the Appellant and Mr. Solomon Mihayo for the Respondent . . •. r . "