ramadhani

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 40 OF 2023 (C/F Criminal Case No. 03 of 2022 before District Court of Kondoa) RAMADHANI MUSA RAMADHANI...................................... APPELLANT VERSUS THE REPUBLIC.................................................................. RESPONDENT JUDGMENT Last Order: 17th April 2024 Date of Judgment: 14th June 2024 MASABO, J:- This is a first appeal. It emanates from the District Court of Kondoa (the trial court). In that court, the appellant was charged with one count of unnatural offence contrary to section 154 (1) (a) of the Penal Code Cap. 16 R.E 2022. It was alleged that on diverse dates in 2021 at Mlua village within Kondoa District in Dodoma Region, the appellant carnally knew one RR (name withheld) a boy of four years against the order of nature. To prove its case, the prosecution called five witnesses who are Adam Juma, the victim's grandfather (PW1), RR, the victim (PW2), Sada Ally a village Executive Officer (VEO): PW3, Dr. Florence Hillary, a medical doctor as PW4 and G. 2990 D/CPL Joseph as PW5. In addition, it tendered one exhibit namely, a PF3 which was admitted as exhibit Pl. Page 1 of 11 A brief account of the evidence that led to the conviction of the appellant is briefly as follows: the victim, a boy of four years when the matter was prosecuted before the trial court, is the appellant's son. He was born of the appellant and the wife he has now separated from. After their separation, the appellant took custody of the child and started to live with him at his house on a farm which is far from people's residences. The life was neither peaceful nor protective of the child as he was routinely battered by the appellant and he even burnt his hand. The incident was reported to PW3 who is the Village Executive Officer. Upon interrogating and physically examining RR, it was found that he was also sodomised. The appellant was arrested and sent to the police station where PF3 was issued and the victim was examined by PW4 who observed that the area near RR's anus had wounds and his sphincter muscles and anal tone were reduced. From this, he concluded that the victim was sodomised. The appellant denied the charges alleging that the persons who arrested him are the ones who sodomised RR. At the end of the trial, the trial court found the prosecution to have proved its case and it convicted the appellant and sentenced him to life imprisonment. Aggrieved, the appellant has appealed to this court. In the petition of appeal, he has raised six grounds of appeal which are conveniently summarised as follows. One, that, the prosecution did not prove its case beyond reasonable doubt because the evidence of murder was contradictory, inconsistent, and implausible; Two, the recording of the evidence of PW2 who is a child contravened the law. Three, there was no evidence that the appellant Page 2 of 11 threatened women who passed near his home. Four, the evidence of PW3 as to his stubbornness was only suggestive. Five, the trial was conducted in the absence of a social welfare officer. Six, the trial court didn't consider the defence evidence in reaching its decision. At the viva voce hearing Of the appeal, the appellant appeared in person unrepresented whilst Ms. Kipagile, learned State Attorney appeared for the respondent. The appellant adopted the grounds of appeal and submitted briefly that the lower court erred as it concentrated on the murder case and left the case before it. Also, it erred by considering the evidence of PW2 which was taken contrary to the provision of section 26 (a) and (b) of the Written Laws Miscellaneous Amendment Act No. 2 of 2016. He also argued that, the court erred in entering conviction as the women alleged to be threatened by him did not testify in court and no social welfare officer was present during trial. In reply, Ms. Kipagile, learned State Attorney sharply opposed the appeal. On the first ground, she submitted that the appellant was not convicted of murder. He was charged of unanatural offence against a four years old boy and based on those charges, he was convicted and sentenced to life imprisonment which is an appropriate punishment for persons convicted of an unnatural offence committed against a child below the age of 18 years. Thus, the trial court can not be faulted. On the second ground, it was argued that the evidence of PW2 was recorded in full compliance with the law as stated under sections 26(a) and (b) of the Page 3 of 11 Miscellaneous Laws Amendment Act which amended section 27 of the Evidence Act. PW2 gave his evidence after the court satisfied itself that the child knew the meaning of truth and after he promised to tell the truth. It was further submitted that PW2’s evidence was supported by the testimony of PW4 a doctor who examined him and tendered a PF3 evidencing that the victim was known against the order of nature. Submitting on the third and fifth grounds of appeal, Ms. kipagile submitted that while it is true that no woman testified that she was threatened by the appellant, such absence is inconsequential. The appellant was charged of an unnatural offence which was duly proved. As shown in the record, the evidence sufficiently proved the offence and implicated the appellant. Regarding the absence of a social welfare officer, she admitted that indeed the proceedings were conducted in the absence of a social welfare officer but she quickly retorted that, that was not fatal as the evidence adduced by the prosecution proved that the offence was committed by the appellant. The case of Selamani Makumba vs. Republic [2006] TLR 96 was made in fortification of the argument that, in sexual offence cases such as the one at hand, the best evidence is that of the victim. Besides, she added, the absence of the social welfare officer did not prejudice the appellant in any way. Lastly, it was submitted and argued that the defence evidence was considered by the trial court as demonstrated on page 16 of the judgment. Thus, the appeal is with no merit and should be dismissed. The appellant had no rejoinder. Page 4 of 11 I have thoroughly read the record and considered the grounds of appeal alongside the reply submission and I am now ready to determine the grounds of appeal. The issue for determination is whether the prosecution proved its case to the required standard. This court being a first appellate court is duty­ bound to reevaluate the evidence on record and come up with an independent finding on whether the case against the appellant was proved. It is a cardinal law that in criminal cases such as the instant one, the prosecution is duty-bound to prove the charges against the accused beyond reasonable doubt as stated in Matibya Ng'habi vs Republic Criminal Appeal No. 651 of 2021 [2024] TZCA 34 TanzLII where the Court of Appeal held thus:- "At the outset, it is instructive to state that, this being a criminal case, the burden lies on the prosecution to establish the guilt of appellant beyond reasonable doubt. In Woodmington v. DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. The term beyond reasonable doubt is not statutorily defined but case laws have defined it. For instance, 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 be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed." It is noteworthy that, the duty and standard of the prosecution to prove the case beyond reasonable doubt is universal in all criminal trials and the duty never shifts to the accused." Page 5 of 11 The burden never shifts to the accused as he need not prove his innocence. All that the accused needs to do is to raise reasonable doubt on the prosecution's case. Thus in this case, the conviction and sentence passed by the trial court can only be sustained if at the end of the reassessment of the evidence on record, it is established, that the prosecution proved without reasonable doubt that the victim was known against the order of nature and that the culprit was none other than the appellant herein. With this guidance, I will now move to the grounds of appeal starting with the second ground of appeal. The complaint by the appellant in this ground of appeal is that the provisions of section 127 (2) of the Evidence Act as amended by section 26(a) (b) of the Written Law (Miscellaneous) Amendment Act, No. 2 of 2016 were flouted. Although being lay he did not submit in detail as to how this provision of the law was flouted, I have carefully looked at the record to ascertain if there was an any anomaly. As section 127 (2) of the Evidence Act deals with the testimony of the child of tender age, my particular focus was on the recording of PW2's evidence. As per this provision, before a child of tender age is allowed to give evidence in court, he must undertake to tell the truth and not lies. It states thus: Child offender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell lies. Interpreting this provision in the case of Issa Salum Nambaluka v. Republic, Criminal Appeal No. 272 of 2018 [2020] TZCA 10 TanzLII, the Page 6 of 11 Court of Appeal stated that the plain meaning of the provisions above is that, a child of tender age may give evidence on oath or affirmation or without oath or affirmation. Where a child of tender age is to give evidence without oath or affirmation, he must promise to tell the truth. In the case at hand the victim did not give evidence on oath or affirmation. He simply promised to tell the truth. This was quite appropriate in terms of section 127 (2) of the Evidence Act reproduced above. The appellant's complaint is without merit and the second ground of appeal is therefore found with no substance. The appellants complaints in the third and fourth grounds of appeal will not detain me as they similarly have no substance. As correctly submitted by the learned State Attorney, while it is true that no women came to testify as regards the appellant's stubbornness and violent behaviour, the absence of such evidence is inconsequential as the appellant's stubbornness and violent behaviour are not essential elements of the unnatural offence against which the appellant stood charged. Hence, have no bearing to his conviction and sentence. About the presence of a social welfare officer during the trial which is the substance of the fifth ground of appeal, sections 98 (1) and 99 (1) (d) of Child Act, Cap 13 R.E 2019 mandatorily requires'the presence of a social welfare officer, in proceedings before Juvenile Court and in cases where a child is in conflict with the law. Thus, while the presence of a social welfare in cases where achild is victim or witness is commendable and highly welcome in safeguarding the interest of the child, it is not a mandatory legal requirement. Hence, cannot invalidate the judgment, conviction or sentence passed against the appellant herein. Dealing with a similar issue in Medson Page 7 of 11 s/o Manga vs Republic (Criminal Appeal 259 of 2019) [2021] TZCA 163 TanzLII the Court of Appeal stated that: Starting with the first ground of appeal where the appellant complained about the absence of a social welfare officer during his trial, the law as it stands, and well submitted by the learned State Attorney, does not require the presence of the social welfare officer, in the trial where the child is a victim or witness. The social welfare officer is mandatorily required, in terms of section 99 (1) (d) of the Child Act, to be present in the proceedings conducted in the Juvenile Courts established under section 97 (1) of the same Act. We held so in the case of Alex Ndendya v. The Republic (supra) that: - "... a social welfare officer is required in proceedings in the Juvenile Courts established under section 97 (1) of the Law of the Child Act the provisions of section 99 (1) (d) of the same Act mandatory require a social welfare officer to be present during the proceedings in the Juvenile Courts. The presence of the social welfare officer does not envisage situations when the child is a, witness; it envisages situations when the child is in conflict with the law; that is, when the child is an accused person." In the present appeal, given the fact that the appellant was not a child and the proceedings were not in the Juvenile Court, there was no need of having the social welfare officer in the conduct of his trial. Accordingly, this ground of appeal lacks merit and we proceed to dismiss it. This eloquent and instructive decision of the apex court of the land requires no addition of any word else, it would be distorted. It suffices to just find, as I do, that the 5th ground of the appellant's appeal is met with the same fate Page 8 of 11 and it is consequently dismissed as the trial court was not a Juvenile Court and the appellant herein was an adult, not a child. Next is the sixth ground in which he has complained about the trial court's failure to consider his defence evidence. Indeed, it is the duty of the trial court to subject the entire evidence on record to scrutiny. This entails considering both the prosecution's evidence and the accused's defence evidence before making any finding of guilt. The omission is however curable on a first appeal such as the one at hand. While re-evaluating the evidence, the first appellate court just, as the trial court, is enjoined to look into the prosecution evidence and the accused's defence to see whether a doubt was cast on the prosecution case. Accordingly, I have scrutinized the appellants defence and the judgment in ascertainment of the truthfulness of this complaint and to see whether the appellant's defence raised any reasonable doubt in his favour. In this endeavour, I have observed that the trial court adequately considered the appellant's defence before reaching at its decision as seen on page 7 of the judgment. In the end, it was found that his defence did not raise any reasonable doubt in his favour and it was, therefore, concluded that the prosecution ably proved its case beyond reasonable doubt through the testimonies of PW1, PW2, PW3 and PW4. I entirely subscribe to this finding. The sixth ground of appeal fails for want of merit. Turning to the first ground of appeal which has two complaints. The first complaint is that the appellant was wrongly convicted of murder. This will not detain me as it is lucidly misconceived. The appellant herein was charged and convicted of carnally knowing a boy of 4 years against the order of Pages of 11 nature, an offence which is punishable by life imprisonment under section 154 (l)(a) of the Penai Code, Cap 16 R.E. 2022. His complaint about a murder case is lucidly misguided. The second complaint is that there were variances in the prosecution evidence. In my scrutiny of the evidence on record, I did not come cross such variations. PW1, the appellant's father and RR's grandfather testified how he learnt about the appellant's violent behaviour and reported the incident to the VEO who upon interrogating RR and examining him, suspected that he was sodomised. RR while testifying as PW2 narrated how the appellant molested him. PW3 stated how PW1 notified her of the incident on 21/12/2021 and how she physically examined RR and found a white liquid oozing from RR's anus hence her suspicion that he was sodomised. She also told the court how he took RR to the police station, obtained a PF3 and had him medically examined at the hospital. PW4, a medical doctor who examined RR, narrated how he medically examined RR and the results thereof. His account was as follows: I examined the child after the police consented to, however the father of the child was seen to be drunk and was aggressive in my examination I discovered that the child's back was seen with the stroke marks and on his face and thighs. I examined the child anus and found that the area near the anus had "vidonda" which had dirty and he felt pains. Also, sphincter muscle and anal tone was reduced. I concluded that the child was sodomised. Also, the child was seen to be physically violated as there were marks/stroke marks on his body. In his report which was admitted as exhibit Pl he observed as follows: Page 10 of 11 The child has bruises and marks of a blunt object of about 4CM wide and 757 cm long along the chest and the back with healing wounds on the face. There is anal ulcer that is foul smelling on left aspect of the left buttocks adjacent to the anal opening is very weak and tone. There is evidence of physical violence emotional and sexual violence with the and penetration. Thus, there were no contradictions worth of reversing the conviction and sentence. In the foregoing, I see no reason to interfere with the conviction and sentence as I also entertain no flicker of doubt that the case against the appellant was proved without reasonable doubt. Accordingly, the appeal is found without merit and it is dismissed. The conviction and the sentence passed against the appellant are hereby upheld. DATED and DELIVERED at DODOMA this 14th day of June 2024 J. L. MASABO JUDGE Page 11 of 11