final ruling ROMURI REVOCATI SHAYO tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI AT MOSHI CRIMINAL APPEAL NO.16911 OF 2024 (Appeal from the Judgment of the District Court of Rombo at Mkuu dated 20th May 2024 in Criminal Case No.38723 of 2024) ROMURI REVOCATI SHAYO…………………………………………… APPELLANT VERSUS THE REPUBLIC………………...………………….………...…………..RESPONDENT JUDGMENT 17st Sep. & 15th Oct. 2024. A.P. KILIMI, J.: Romuri Revocati Shayo is the appellant in this case, he was arraigned at the District Court of Rombo ‘the trial court’ for the offence of Unnatural offence contrary to section 154(1)(a) of the Penal Code [Cap 16 R.E 2022]. Particulars of offence were that on 27th day of November, 2023 at Mengeni Kitasha area within Rombo District in Kilimanjaro region did have carnal knowledge of one AB (in pseudonym to preserve his dignity), a man of 23 years old against the order of nature. The appellant pleaded not guilty to the charge and upon a full trial, the trial court was convinced that the case was proved beyond reasonable doubts and convicted the appellant to serve thirty (30) years in prison and a compensation to a victim of Tsh. 500,000/=. 1 Being aggrieved with conviction and sentence, the appellant is in this court challenging the trial court decision and prays for his appeal to be allowed and the trial court conviction and sentence be quashed and set aside with the following list of grounds; 1. That the learned trial Magistrate erred in law and fact in convicting and sentencing the appellant whereas prosecution case was not proved beyond reasonable doubt. 2. That the learned resident Magistrate strained into an error for failure to comply with requirement of the law under section 192 of the Criminal Procedure Act, Cap 20 R.E 2022 causing injustice to the appellant. 3. That the learned trial Magistrate erred in law for failure to critically analyze the evidence adduced before it. 4. That the trial Court erred in law and fact for failure to comply with the provision of section 311 and 312 of the Criminal Procedure Act, [Cap 20 R.E 2022]. A brief background which led to the appellant conviction at the trial court is that; On 23/11/2023 the mother of the victim Anna Paul Seria (PW3) travelled to DSM for a wedding and left her two children one Neema Paulo (PW2) and AB (PW8) ‘the victim’ under the care of her sister-in-law Disela Sulupisi Bureta (PW1). On 27/11/2023 PW1 went to Anna’s place and found PW2 only and upon asking her where was 2 Juhudi ( PW8), she told her that he was at the nearby farm of (PW3) harvesting coffee. PW1 then went to collect more grasses for cows as Anna had left her to also take care of her livestock. About 100metres, she saw the accused/appellant herein harvesting coffee with the victim, she thought he was helping him and did not bother to call them. The rain started pouring where Pw1 run and went back to Anna’s place. Upon arriving she asked Neema if PW8 has already returned as it was raining. PW2 replied to her that he was not back. PW1 decided to go back in search of the victim. There was a worn-out house in that farm where PW1 heard people were talking, she entered and upon entering, she saw the accused and the victim both naked while the accused has inserted his penis into the victim anus, upon asking him what he was doing, the accused replied to her that she should not interfere and ruin his pleasure. PW1 started shouting where the accused stopped and got out his penis and get hold of PW1 who continued shouting. Upon hearing the call for help, PW2 rushed at the scene and saw the accused person and victim being naked. She saw accused’s trouser below his knees. PW2 also saw at the same moment victim struggling to get detached from the accused, she went to help but the accused pushed them both and ran away. She then went to call for further help where she went with her aunt, uncle and one neighbour. 3 PW1 told them what happened and they advised her to inform the hamlet chairman who told them to send the victim to a health centre of Keni. Then they went to police station of Mkuu where they got a PF3 then rushed to a health centre for medical examination. Later the accused was arrested. PW1 testified that, she knows the accused as she used to go with him to the same congregation (Jumuiya) for worship. She said the incident took place around 13:00 hours. Anna Paul Seria a (PW3) and a mother of the victim, at the trial court testified to have left her children under the care of PW1 when she travelled to Dar es salaam to attend the wedding. She testified that she left PW1 to take care of them because PW2 was just given birth and also the victim since his birth had a problem of hearing and talking as it was difficult to understand what he was even saying. On 27/11/2023 she was informed by PW1 that appellant sodomized his son, she told the court that the accused was her neighbour. Another witness was Beno Gabriel Mashanga (PW4), he testified to have been given arrest warrant to arrest the accused for the alleged offence he committed. He searched for him and arrested and handed him over to police station of Mkuu. Aveline Egidi Bureta a (PW5) at the trial court testified also that the victim cannot speak properly ever since he was born. She stated that on 27/11/2023 at noon PW2 told her that there was a problem at 4 their house, she went to attend the call, upon reaching there she was informed that the victim was sodomized against the order of nature. Thereat, she found PW1, Mama Tarimo who is victim’s aunt and Peter Yorum Seria victim’s uncle. She escorted them to a police station and PF3 was issued them. They went together at hospital where it was revealed that the victim was sodomized. Winfrid Luis Ndumbaro (PW6) a Medical Practitioner testified to have examined the victim on 27/11/2023 where after examining the victim’s anus, she found that his sphincter muscles of his anus were loose and there was a healing scar in his anus. She told the court that the loosening of the sphincter muscles can be caused by inserting a blunt object for instance a carrot, banana or an erected penis. She filled a PF3, the same was tendered at the trial court and admitted as PE1. PW7 D/CPL Benson Kelamfua a police officer at Mkuu police station, he testified that he gave PW1 a PF3 so that he should go to hospital for medical examination. (PW8) AB ‘the victim’ testified that on 27/11/2023 he was at the farm harvesting coffee then the accused went there too and asked if his mother was around where he said no. The rain started and he ran into a worn-out house at that farm. The accused followed him and told him to stand up, he then undressed his trouser and the victim trouser and took 5 his ‘dudu’ and inserted into his anus. He told him that if he tells anyone he will kill him. He testified that then Mamamia (PW1) shouted and his sister PW2 came where the accused (DW1) pushed PW1 to the ground and ran away. He testified that the accused had inserted his dudu at his anus several times at the farm and told him that if he was to tell anyone he would kill him. In his defence at the trial court, Romuri Revocati Shayo (DW1) denied to have committed the offence and stated that he was arrested without being informed of his offence. He said that the case against him was a fabricated as he did not see the victim nor PW1 and that he never went to the PW3’s farm. He stated this case was fabricated thus witnesses lies against him. He added that PW3 testified against him while she was not at home on the date of incident. Further, the appellant questioned that if he sodomized the victim several times why did he complain to anybody. That was the end of his defence as the appellant had no witness. At the hearing of this appeal which proceeded orally, the appellant fended himself and he implored for his ground of appeal be considered whereas the respondent was represented by Mr. Frank Daud Wambura, learned State Attorney. 6 Mr. Wambura argued against the appeal, he consolidated ground number 1 and 3 in his argument. He submitted to the effect that the appeal has no base as the prosecution proved its case beyond reasonable doubts. He referred the decision of Seleman Makumba vs. Republic in which the court laid a principle that a best evidence in sexual offences comes from the victim. He expounded that as per page 18 of the trial court proceedings, the victim stated how the offence was committed against him. That, after the appellant asked the whereabouts of his mother and found that she was not there, he undressed the victim who was mentally unfit and sodomized him. The learned State Attorney submitted that the victims testimony (PW8) were collaborated by PW6, a medical doctor who testified that after medical examination, the sphincter muscles of the victim’s anus were loose and had wound. Mr Wambura commented that the case was proved beyond reasonable doubts as there were an eye witness who witnessed the act of carnal knowing the victim against the order of nature. He averred that such testimony was direct evidence recognized under section 62(1) of the Evidence Act, [CAP 6 R.E 2022]. Arguing against the second ground of appeal, Mr. Wambura submitted that there was no error committed by the trial court in compliance with section 192 of the Criminal Procedure Act. That, 7 section 192 deals with Preliminary Hearing which as per page 4 of the trial proceedings the trial court complied with as the offence was read over and facts not in dispute were taken. Further, the appellant respondent to those facts, then the learned Attorney concluded that it was properly done by the trial court. In respect of the fourth ground, the learned State Attorney explained that the appellant was trying to draw attention to the mode of judgment as he is challenging the judgment in a whole. Mr. Wambura believed that the trial court complied with section 311 and 312 of the Criminal procedure Act as it analysed the evidence of both parties, issues were determined and all witnesses were accorded weight to evidence as per page 13 of the impugned decision. He added that there were also a mitigating and aggravating factors considered by the trial court. In his final remarks, the learned State Attorney prayed the court to dismiss this appeal. In his short rejoinder, the appellant mantained that he did not commit the offence and that he did not see the witnesses mentioned by the prosecution at the trial court. He emphasized that the case against him was a falsely allegations. 8 Having considered the above endeavours, the issue for determination is whether the appeal at hand has merits to warrant the acquittal of the appellant. I wish to start with ground number two that the trial magistrate erred in failing to comply with the requirement of the law under section 192 of the Criminal Procedure Act [Cap 20 R.E 2022]. Generally the said section deals with Preliminary hearing to determine matters not in dispute. It provides that; “192.-(1) Notwithstanding the provisions of sections 229 and 283, if an accused person pleads not guilty the court shall as soon as is convenient, hold a preliminary hearing in open court in the presence of the accused person and his advocate, if he is represented by an advocate, and the public prosecutor to consider such matters as are not in dispute between the parties and which will promote a fair and expeditious trial” In the appeal at hand, the appellant is faulting the trial court for failure to comply with the requirement of the said section. The republic/respondent arguments are that the trial court complied with the requirement of above section. I have carefully examined the trial court record, and as stated above the said section deals with determining the 9 matters not in dispute prior to hearing of the case after the accused pleads not guilty to the charge. The trial court records reveals from page 4 to 5 of the proceeding that after the offence was read over to the accused and he pleaded not guilty, the trial court entered the plea of not guilty and proceeded to read the facts of the case and after that, the trial court asked the appellant which facts he agree and disputed. For reference on what transpired at the trial court after the charge was read over, I find apposite to reproduced hereunder; “PROCEEDING Charge read over and reminded to the accused person in a language he understands which is Kiswahili and asked to plea thereto. Accused: It is not true; Court: EPNG. Court: MEMORANDUM OF THE FACTS: That, accused is Romuri Revocati Shayo, Chaga, adult, peasant, Christian residing at Mengeni Kitasha. That, the accused is charged with unnatural offence c/s 154(1)(a) of the Penal Code cap 16 R.E 2022. That the accused committed the said offence on 27th November 2023 at Mengeni Kitasha within Rombo District in Kilimanjaro region. That, on the same date, and place accused did have carnal knowledge with a man Juhudi Paul Selia against the order of nature. That, on the said date and place accused and victim were at coffee farm harvesting 10 the said coffee, suddenly accused get hold of the victim by force and forced him inside a warn-out house, then have carnal knowledge against the order of nature. That the incident was reported to police Mkuu Rombo and PF3 was issued to the victim who went to Ken Dispensary for treatment. That, accused was arrested and brought to police Mkuu then to this Court to answer his charge. Court: ACCUSED REPLY TO MEMORANDUM OF FACTS I admit my personal particulars, I dispute to be charged with rape, to commit the offence, I admit I was arrested brought to police then to court MEMORANDUM OF FACTS NOT IN DISPUTE Accused does not dispute the personal particulars and does not dispute he was arrested brought to police Mkuu then to court to answer his charge Court; Section 192(3) of the CPA complied with” In my view, and as correctly submitted by Mr. Wambura, the trial court did follow the required procedures after the appellant pleaded not guilty to the charge by asking him which facts he agreed or disputed; thus, the said section 192(1) was compiled with. However, since the appellant cited in generally section 192 of the CPA without citing its subsections, may be he was referring to section 192 subsection (2) of CPA (supra) that the trial court failed to explain to him the meaning of PH. Having perused the records, at page 5, it reveals that the trial 11 magistrate read over and explained to the language understood by the appellant the matters not in dispute thus complying with section 192(3). In my view since the trial magistrate complied with subsection 192(3) as explained above, I see no procedural irregularities were committed. Thus, basing on the explanation above, I am settled that the second ground has no merit and I proceed to dismiss it forthwith. In respect to the fourth ground of appeal, the appellant blamed the trial court for failure to comply with section 311 and 312 of the Criminal Procedure Act (supra). Section 311 provides modes of delivering judgment. As a matter of reference, the provision reads: “311.-(1) The decision of every trial of any crim inal case or m atter shall be delivered in an open court im m ediately or as soon as possible after term ination of trial, but in any case not exceeding ninety days, of which notice shall be given to the parties or their advocates, if any, but where the decision is in writing at the time of pronouncement, the judge or magistrate may, unless objection to that course is taken by either the prosecution or the defence, explain the substance of the decision in an open court in lieu of reading such decision in full. 12 [Emphasis added] Moreover, in section 312 of the Criminal Procedure Act [Cap 20 R.E 2022] provides as follows; “312.-(1) Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act, be written by or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court and shall contain the point or points for determ ination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer as of the date on which it is pronounced in open court”. [Emphasis added] As per the above provision any decision must be delivered in open court after termination of trial. It further reveals what the judgment must contain or contents of a judgment and that it shall be signed and dated by the presiding officer if authorized to do so. 13 Looking at the impugned decision, at page 15 in her judgment the learned trial magistrate stated that judgment were delivered in the presence of both of the parties, for easy reference these are reflected in the said judgment. Court: Judgment delivered in the presence of both parties. Right of appeal fully explained’ Signed: N.J.Nasari-PRM 20/ 5/ 2024 From the above extract, the said judgment was delivered in the presence of the parties and as per the coram on that day, it revealed that it was in Court room No. 1 which in my view it was an open court. In respect of allegation of contravention of section 312 of the CPA, the records reveals that on the date of judgment which is 20th May 2024, the presiding magistrate N.J.Nassari who also appears on the impugned judgment presided over the said judgment and the records further reveals that she was the one who authored the said judgment. Moreover, it is revealed that at page 12 of the impugned decision, the point of determination is “whether accused had carnal knowledge to the victim against the order of nature”. It is further observation of this court that the impugned judgment also contains reasons for the decision as reflected at page 13 and 14 where the trial magistrate reasoned why 14 she convicted the appellant. Thus, as rightly submitted by the learned State Attorney, the impugned decision did comply with the above cited provisions and I see no errors occasioned miscarriage of justice. The records itself revealed that on a coram date of 8th May 2024, hon. Magistrate I.F.INYELLA, RM presided over and adjourned the case for date of judgment which was 20/5/2024. On 20th May 2024 the records reveals that the presiding magistrate N.J.NASSARI-PRM was the one who authored the judgment and delivered the same to parties as her names appears on the judgment. Therefore, I see no violation by the trial court in the above-mentioned section under the fourth ground. Thus, I find the same devoid of merit and I proceed to dismiss it forthwith. Coming to first and third grounds, it is my considered opinion that the same are intertwined as they are cantered on whether prosecution proved its case beyond reasonable doubt. This court being the first appellate, it has the duty to re-evaluate the entire evidence in an objective manner as if it is rehearing for the first time and upon completion, to arrive at its own findings of facts. (See Kaimu Said v. Republic, Criminal Appeal No. 391/2019 (unreported). 15 In the case at hand, for the charge of unnatural offence to succeed, the prosecution has to prove that the appellant penetrated his male organ in the anus of the victim, and in sexually offences cases the best evidence usually comes from the victim himself as per Selemani Makumba vs. Republic [2006] TLR 379. In proving the offence, the victim PW8 told the trial court the following, “..Romuri came he told me to stand up. He undressed his trouser, he undressed my trouser too. He took his ‘dudu’ and inserted to my anus….Romuri has inserted his ‘dudu’ at my anus several times at the farm, he was saying he will kill me if I tell anyone..” His evidence is being corroborated by PW6, a medical doctor who examined the victim on 27/11/2023 and found that he was sodomized as his sphincter muscles appeared to be loose. She tendered a medical report PF3, which was admitted as exhibit ‘PE1’. To prove further, the prosecution procured an eye witness who testified as PW1 who saw in fragmento delicto the appellant sodomizing the victim. PW1’s evidence was collaborated by PW2, the victim’s sister who attended the shouting for help from PW1 and witnessed both the appellant and the victim naked. 16 The defence of the appellant at the trial court that he was arrested without being informed his offence lacks merits as he also testified that he was informed that he was charged with unnatural offence. The argument that it was a fabricated case against him, in my view it holds no water as the evidence reveals vividly as above that the victim was seen in fragment delicto . In John Madata vs Republic, Criminal Appeal No. 453 of 2017, that; “It is common knowledge that although the accused has a duty to prove his innocence, he is expected to make the theme of his defence known so as to make the trial fair even to the prosecution/ and we think, this theme may be deduced from the line of cross examinations or notices such as when the said accused intends to raise a defence of alibi” The records reveals that the appellant at the trial court did put questions (cross examined) the prosecution witnesses. For instance, at page 10 of the proceedings the appellant asked PW1 questions where her reply was as follows; “I do not know if you was given the work in harvesting the coffee but may be you 17 helped in order to succeed your aim of having carnal knowledge against the order of nature…I’m not fabricating anything and I have no quarrel with any neighbour...” I have considered the defence testimony in lieu of the evidence tendered at the trial court as above, and the following are my analysis; first, the victim said appellant inserted his ‘dudu’ on his anus, the word dudu means penis, this might may be due to victim upbringing and cultural background taking regard he said those words in the presence of people (see Joseph Leko v R, Criminal Appeal No 124 of 2013 CAT, (Unreported). Therefore, in my view of the victim’s testimony in respect to the penetration of the appellant penis to victim’s anus was proved. Second, PW1 cemented what the victim said, she found the appellant in fragment delicto, as rightly observed by the trial court this witness corroborated the evidence of PW1 that indeed the said act was done, however the evidence of PW1 according to the record was coherent and consistent, but also was also corroborated by PW2 who attended the call and found the appellant and the victim still naked, thus in my considered opinion this piece of evidence proves that it was immediately after the said illegal act seen direct by PW1. 18 In view of the above evidence, I am satisfied the trial court under the above circumstances was right to reject the appellant’s defence of alibi, but also his defence that the allegation was fabricated against him. Therefore, it is my considered view in a whole of evidence stated above, the prosecution did prove the case to the required standard of the law. Having said so, I am satisfied that the Appellant was properly convicted and sentenced. Thus, I find no reason to fault the decision of the trial court. Consequently, this appeal is devoid of merit and is hereby dismissed in its entirety. It is so ordered. DATED at MOSHI this 15th day of October, 2024. X JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 15th day of October, 2024 in the presence of Mr. Frank Daudi Wambura learned State Attorney, a appellant also present in person. Sgd; A. P. KILIMI JUDGE 19 15/10/2024 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 15/10/2024 20