REUBEN DAVID JOHN V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI SUB REGISTRY

AT MOSHI CRIMINAL APPEAL NO. 18314 OF 2024 (Originating from Criminal Case No. 128 of 2023 of Same District Court) REUBEN DAVID JOHN …………………………………….. APPELLANT

VERSUS REPUBLIC ………………………………………….......... RESPONDENT

JUDGMENT 24/09/2024 & 21/10/2024 SIMFUKWE, J. The appellant Reuben David John was arraigned before the District Court of Same (trial court) charged with the offence of unnatural offence contrary to section 154(1)(a) and (2) of the Penal Code, Cap 16 R.E 2022. It was alleged before the trial court that on diverse dates between June and July 2023 at Mpinji area within Same District in Kilimanjaro Region, the appellant had carnal knowledge of one boy aged 1 10 years against the order of nature. He was convicted and sentenced to a statutory life imprisonment. The appellant was dissatisfied with the conviction and sentence. He filed the instant appeal on five grounds: 1. That, the learned trial magistrate grossly erred both in law and fact in convicting and sentencing the appellant contrary to section 160B of the Penal Code, Cap 16 R.E 2022.

2. That, the learned trial magistrate grossly erred in both law and fact in failing to note that, the prosecution witnesses gave highly improbable evidence which was supposed to be approached with great caution as it demonstrated a manifest intention or desire to lie in order to achieve or attain a certain end.

3. That, the learned trial magistrate grossly erred both in law and fact in convicting and sentencing the appellant on a contradictory, inconsistency and unreliable prosecution evidence.

4. That, the learned trial magistrate grossly erred both in law and fact in failing to note that, the charge sheet was at variance with the evidence on record.

5. That, the learned trial magistrate grossly erred both in law and fact in convicting and sentencing the appellant despite the charge being 2 not proved beyond reasonable doubts against the appellant and to the required standard by the law. The appeal was ordered to be argued by way of written submissions. The appellant had no representation while the respondent was represented by Mr. Frank Ong’eng’a, learned State Attorney. In his submission in chief, the appellant started with the fourth ground of appeal. He submitted that it is settled position that a charge sheet is a foundation of a criminal trial. That, the purpose of the charge sheet among others is to inform the accused person the nature and magnitude of the charge facing him with a view of enabling him to prepare his defence. It was averred that in the case at hand the particulars of offence contradict with the evidence of PW1 in regard to when the incident occurred. Whereas the charge indicates that the incidences happened on various dates between June 2023 and July 2023, PW1 testified that the incidence occurred once and not on diverse dates. When cross examined, PW1 said that he had forgotten the month on which he was sodomized. The appellant commented that, with such variance, the charge sheet was not amended to accommodate the variance. He buttressed his argument with the case of Abel Masikiti v. R, Criminal

appeal No. 24 of 2015 (unreported) in which the Court of Appeal observed that: 3 “If there is any variance or uncertainty in the dates then the charge must be amended in terms of section 234 of the CPA. If this is not done, the preferred charge will remain unproved and the accused shall be entitled to an acquittal.” Based on the above quoted decision, the appellant was of the view that there being no amendment to the charge, the charge against him was not proved. On the second and third grounds of appeal; it was submitted that PW1 was not a credible and reliable witness. It was explained that at page 15, 9th line of the proceedings, PW1 said that he never told his grandmother about the incidence. At the same page, 22 and 23 lined of the typed proceedings PW1 said that he told his grandmother that the 3rd and 4th accused sodomized him at the goat’s shed. The appellant cited the case of Mohamed Said v. R, Criminal Appeal No. 145 of 2017 (unreported) which held that a witness who lies in an important point cannot be believed in other points. Reference was also made to the testimony of PW2, the grandmother of the victim who said that he was informed about the tragedy on 23/08/2023 by the headteacher of the victim. The appellant was of the opinion that had the trial court directed its mind to the above noted fact, it would not have believed PW1’s 4 evidence. And ultimately, it would

not have arrived at the conclusion that the appellant sodomized the victim. The appellant continued to fault the act of PW1 reporting the tragedy to his teacher and not his grandmother. He elaborated that the ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability. In the same way, unexplained delay or complete failure to do so should put a prudent court into inquiry. The appellant cited the case of Mohamed Said @ Rais v. R, Criminal Appeal No. 167 of 2020 (unreported) in which the Court of Appeal observed that: “There is no explanation either why she could keep quiet from such a fateful event she had been freed by the assailants without asking for help from the people nearby the house with a view of apprehending the culprits immediately thereafter.” Also, the appellant pointed out that teacher Mathayo never appeared to testify to corroborate PW1’s evidence. The said teacher being a special link which was broken makes the prosecution case crumble. The arresting officer and investigator of the case never appeared to testify casting more shadow to the case. The appellant was of the opinion that all that, renders PW1’s evidence doubtful, hence, unreliable. 5 Furthermore, the appellant faulted the trial magistrate for relying on extraneous matters which were not stated by prosecution witnesses, hence arrived at a wrong

conclusion. He buttressed that the law is clear and settled that court’s decision must be based on evidence presented before it. He made reference to the case of Athanas Julius v. R, Criminal Appeal No. 498 of 2015 (unreported) in which the Court of Appeal stated that: “The second anomaly noted, is the act of the trial resident magistrate to include in his judgment, facts which are not reflected in the recorded evidence in the proceedings…… we are inclined to join hands with the contention of the learned counsel for both sides that the irregularity was fatal and did vitiate the entire proceedings of the trial court.” On the first ground of appeal, the appellant faulted the trial Magistrate for sentencing him to life imprisonment while he was eighteen years at the time of commission of the offence. He cited section 160B of the Penal Code (supra) which prohibits courts from imposing cruel sentences to persons of or below the age of eighteen years. He stated that, in terms of the cited provision, since he was of the age of 18 years at the time of commission of the offence, upon conviction he was supposed to be 6 sentenced to corporal punishment. The appellant was of the opinion that failure to observe the dictates of the law occasioned miscarriage of justice on part of the appellant. It was finalized that failure by the trial court to consider all the flaws and deficiencies

rendered the purported prosecution evidence suspect and doubtful. In the event, the appellant prayed that this court finds merit in the appeal and allow it. In his reply submission the learned state attorney supported the conviction and sentence. On the first ground of appeal, Mr. Ong’eng’a submitted that the fact that the appellant was 18 years was not disputed at any point in time during the trial. However, he was of the view that the trial Magistrate complied to the law pursuant to section 74 of the Legal Sector Laws (Miscellaneous Amendments) Act, 2023 which amended section 131(1) of the Penal Code (supra). It was explained that the offender who is 18 years is termed as of age of majority and liable to imprisonment or punishment given to adults. Hence, the argument of the appellant is baseless. In reply to the second ground of appeal, Mr. Ong’eng’a submitted that the appellant’s allegations are not supported by the trial court’s proceedings. 7 He explained that the trial court was in the best position to assess the credibility of the witnesses testifying before it and the court believed the witnesses to be witnesses of truth. The same lead to the appellant’s conviction. The learned State Attorney was of the opinion that the second ground of appeal has no merit and prayed that it should be dismissed. In reply to the issue of contradictory evidence of the victim (PW1)

raised on the second ground of appeal, Mr. Ong’eng’a was of the view that the contradiction does not go to the root of the case and the same is curable under section 388 of the Criminal Procedure Act, Cap 20 R.E 2022. Reference was made to the case of Eliah Bariki v. R, Criminal Appeal No. 321 of 2016 [2019] TZCA 40 (Tanzlii) at page 12 and 14 where the Court of Appeal held that: “We would like to begin by expressing the general view that contradictions by any particular witness or among witnesses cannot be escaped or avoided in any particular case.” At page 14 it was stated that: “In evaluating discrepancies, contradictions and omission, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide 8 whether the discrepancies and contradictions are only minor or whether they go to the root of the matter.” Moreover, it was contended that as a matter of principle, a party who fails to cross examine a witness on a certain matter is deemed to have accepted the same and will be estopped from asking the trial court to disbelieve what the witness said. The learned State Attorney cemented his argument with the case of Issa Hassan Uki v. R, Criminal Appeal No. 129 of 2017 [2018] TZCA 361 (10 May 2018) (Tanzlii) at page 17. He argued further that the charge of unnatural offence was proved beyond reasonable

doubts that the appellant sodomised PW1. Concerning the complaint that teacher Mathayo, the arresting officer and investigator of the case did not appear to testify; Mr. Ong’eng’a said that the same is baseless. He clarified that the best evidence on Gender Based Violence cases comes from the victim as it was held in the case of Selemani Makumba v. R, Criminal Appeal No. 94 of 1999 [2006] TZCA 96 (Tanzlii) at page 8. Thus, the noted anomaly was not fatal. Regarding the issue of delay to report the matter; Mr. Ong’eng’a replied that the same is baseless as it was stated in the case of Elia Richard Shoo v. R, Criminal Appeal No. 196 of 2021 [2024] TZCA 422 (10 June 2024) at page 13 where the Court held that: 9 “…. It is a fact that the victim would rather privately bear the ignominy and pain of such an experience than reveal her shame to the world or risk the rapists making good on his threat to hurt or kill her.” From the above decision, the learned State Attorney concluded that since the victim is a child and his level of maturity is low, delay in reporting the situation is justifiable and rational. Hence, the claim is baseless. On the fourth and fifth grounds of appeal; Mr. Ong’eng’a replied that the victim narrated that the incidence occurred between June and July 2023. When cross examined, he said that he had forgotten the month on which he was sodomised. The learned State

Attorney was of the view that the same was not a variance and did not go to the root of the case. The case of Elia Bariki v. R (supra) at page 9 was recited to support the argument. It was concluded that having regard to the overwhelming evidence adduced by the prosecution in this case, the decision of the trial Magistrate in convicting the appellant was just. The learned State Attorney prayed that the appeal be dismissed, conviction and sentence be upheld. In his rejoinder on the first ground of appeal, the appellant reiterated his submission in chief and added that the respondent is trying to mislead the court that after the amendment of the law the age of 18 years fall within 10 the age of majority. The appellant rejoined further that when he committed the offence, he was 17 years old and he had not attained 18 years. Therefore, imposing a harsh and severe life imprisonment sentence was illegal and miscarriage of justice against the appellant. The appellant implored this court to find merit in his appeal, allow it, quash conviction, set aside the sentence and set him at liberty. That marked the end of the rival submissions of both parties. I have examined the trial court’s record, the grounds of appeal and submissions of both parties. The issue is whether this appeal has merit. Starting with the fourth ground of appeal as preferred by the appellant, that the charge sheet was

at variance with the evidence on record; the appellant submitted inter alia that whereas the charge indicates that the incident occurred on diverse dates between June and July 2023, PW1 testified that the incidence occurred only once and not on diverse dates or more than once. The learned State Attorney was of the view that there was no variance between the charge sheet and evidence of PW1. He referred at page 14 of the typed proceedings where PW1 narrated that the incidence occurred between June and July 2023. With due respect to the learned State Attorney, I have examined evidence of PW1 and found out that evidence of PW1 was in respect of the first, second, third and 11 fourth accused respectively. It was the incidences against the first and second accused which were said to have occurred between June and July 2023. The date of accusations against the third and fourth accused (appellant herein) is not certain. PW1 was recorded to had said the following: “Also, Jerry and Ruben 3rd and 4th accused also inserted their penises to my anus at 4th accused home. Ceci and her parents had gone to their hotel. They did the bad thing to me at a goat’s shed. It was around evening hours. They did so once. That day I hadn’t gone to school.” Emphasis added In the case of John Leon Kimario v. R (Criminal Appeal No. 105 of 2021) TZCA [2024] (06 June 2024) at page 12-14 it was held

that: “…….in this case we do not think the charge was proved, for there is a clear variance between the two; the charge and the evidence.” That being the case, I agree with the appellant that the charge sheet was at variance with evidence of PW1 in respect of when was the offence committed. The same goes to the root of the case. Thus, the charge was not proved. 12 On the second and third grounds of appeal, the appellant faulted the trial court for relying on improbable, contradictory, inconsistent and unreliable prosecution evidence. In his submission in chief, he stated among other things that PW1 was not a credible and reliable witness. That at page 15, 9th line of the proceedings, PW1 said that he never told his grandmother about the incidence. At the same page, 22 and 23 lined of the typed proceedings PW1 said that he told his grandmother that the 3rd and 4th accused sodomized him at the goat’s shed. PW2, the great grandmother of the victim testified inter alia that she was informed about the tragedy by the teacher of the victim. Mr. Ong’eng’a conceded to the contradiction, however, he was of the opinion that the contradiction does not go to the root of the case. Respectfully, I am at variance with the learned State Attorney. The act of the victim stating that he reported to his grandmother soon after the appellant and his fellow had left from the crime scene; and at the

same time that it was his teacher who discovered that he was sodomised, shakes the credibility of PW1. The contradiction is material one which corrodes the credibility of prosecution’s case. See the case of Ibrahim Eston v. R, Criminal Appeal No. 75 of 2021 [2024] TZCA 516 (5 July 2024). 13 On the fifth ground of appeal, it was the argument of the appellant that the case against him was not proved beyond reasonable doubts. He raised various doubts on part of prosecution, specifically PW1’s evidence. The contradiction of PW1’s evidence as to whom he reported first about the incidence and PW1’s failure to report the event at earliest possible opportunity. Furthermore, the appellant faulted the trial Magistrate for relying on extraneous matters which were not stated by the parties in her decision. On his part, the learned State Attorney stated that the decision of the trial court was just. Based on the second, third and fourth grounds of appeal, I am at one with the appellant that the case against him was not proved beyond reasonable doubts. Evidence of PW1 was not worth to ground conviction even upon corroboration with evidence of other prosecution witnesses. In the case of Mohamed Said Rais v Republic, (supra) it was held that evidence from the victim of a sexual offence can ground conviction if it is beyond reproach by itself which boils down to credibility. On the first ground

of appeal which I did not discuss first purposely; I will discuss it briefly just for academic purpose. In this ground the appellant submitted that since he was 18 years old at the time of commission of 14 offence, it was wrong for the trial court to sentence him to life imprisonment. He subscribed to section 160B of the Penal Code. On part of the respondent, the learned State Attorney cited section 74 of Legal Sector Laws (Misc. Amendments) Act (supra) which amended section 131 of the Penal Code, by deleting the words “of the age of 18 years or less” and substituted with the words “below the age of 18 years” In his rejoinder, the appellant changed his story and alleged that he was 17 years old at the time of commission of offence. With due respect to the appellant, that is what we call “an afterthought” which is not allowed in law. After the above noted amendment, section 160B of the Penal Code (supra) is applicable only to accused persons who are below 18 years old. Assuming that conviction against the appellant was sustained, guided by section 74 of the Legal Sector Laws (Misc. Amendments) Act (supra), the first ground of appeal lacks merit. That said, I hereby allow this appeal. Conviction against the Appellant is quashed and the sentence of life imprisonment is set aside accordingly. The Appellant is ordered to be set free immediately unless held for other lawful reasons. 15 Appeal allowed. Dated and delivered at Moshi this 21st day of October 2024. X S. H. SIMFUKWE

JUDGE Signed by: S. H. SIMFUKWE 21/10/2024 16