yasini jumanne vs republic 2006 tzhc 327 25 september 2006

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CRIMINAL APPEAL NO. 57 OF 2003 (C/F DC MWANGA CR. CASE NO. 10/1997) YASINIJUM ANNE........................APPELLANT VERSUS THE REPUBLIC........................... RESPONDENT JUDGMENT HON. JUNDU. J. The Appellant, in the trial court, was charged with Unnatural offence c/s 154 (1) of the Penal Code, Cap. 16, Vol. 1 of the laws. The particulars of the offence were that the Appellant on the 25th day o f January, 1957 at about 12.00 hours at Kituri Village within the District of Mwanga and Kilimanjaro Region did carnally known one Willy s/o Baraka (P.W .l) against the order of nature. In order to prove the charge against the Appellant, the prosecution side at the trial court had called five (5) witnesses. P.W .l, the complainant, whom proceedings showed him to be eleven (11) years of age had testified that on the material day (25/1/97) he went to the bushes to hunt hares where he met the Appellant who told him they should go further into the bushes to hunt hares. While there, the Appellant held P.W.l by the neck, undressed him, forced him to lie down and sodomized him. PW. 1 could not shout because the Appellant had threatened to kill j him if he did. Having finished sodomizing him, the Appellant went away. Subsequently, P.W.l reported the matter to his mother (P.W.2) and to the village office. The Appellant was arrested by the militiamen and taken to the village office at Kituri, then to Kileo and to the Police. P.W.l had testified further at the trial court that he was sent to Kileo Hospital for treatment and then to Mwanga Police Station where he was given PF3 which he tendered in the said court and admitted by the trial magistrate as Exhibit “P I”. P.W.5 in his evidence at the trial court alleged that he was an M.C.H. Aid at Kileo and that he had examined P.W.l whom he described to be of seven years of age and that he observed and saw bruises around the neck of P. W. 1. He testified further that he had seen some whitish dry stuff (sperms) in the buttocks of P.W.l and he decided to send P.W.l to Mwanga Hospital for further examination and steps. In his defence evidence, the Appellant alleged to have left his home place early in the morning and returned in the afternoon and was arrested by militiamen at 5.45 p.m. and taken to the village office. He contended that on the material day he was at the other village and did not met P.W .l. He alleged to have been with one Juma Athumani in the said village cutting grasses up to 12.00 noon and that P.W.2 had grudges with him because she had given him money to cultivate land for her but he did not do it. Having heard the evidence of the prosecution witnesses and that of the defence, the trial magistrate concluded that he had observed the demeanor of the prosecution witnesses when giving evidence before him and he was convinced and believed them that to be witnesses of truth. He dismissed as untrue the contention of the Appellant in his evidence that on the material day he was away in another village cutting grass with one Juma Athumani as well as the contention that P.W.2 had grudges with him. He found him guilty of the charged offence, convicted him and sentenced him to 20 years imprisonment. Having been aggrieved by the conviction and sentence imposed on him by the trial magistrate, the Appellant has now appealed to this court listing seven (7) grounds of appeal in his Petition of Appeal namely:- 1. That the learned magistrate erred both in law and fact for not considering that the charge was not proved beyond reasonable doubt as required by the criminal laws. 2. That the learned magistrate erred in law for not taking account that there was no strong evidence which was adduced by the prosecution witness which could warrant conviction to the Appellant as required by law. , 3. That the learned magistrate ignored to consider that P .W .l, P.W.2 and P.W.3 were relatives and therefore they framed the whole issue against the Appellant for their own benefit. P.W.5 failed to produce any medical document to prove before the court that the evidence she gave before the court was correct and corroborated. 4. That the learned trial magistrate failed to consider that if the alleged offence was done against P.W. 1 then he could have gone home crying and bleeding in such pain but instead he just informed P.W.3 and went to hiding. This clearly shows that there was no such act which was done to P. W. 1. 5. That the learned magistrate erred in law and fact for manifestly such an excessive sentence to the Appellant without first evaluating the evidence given before the court by both parties, the learned magistrate also ought to have considered that the Appellant had grudge with the mother o f P.W.l and that could raise an issue like this one. 6. That failure o f the prosecution to tender the medical report either from KILEO DISPENSARY or MWANGA HOSPITAL (PF3) left the whole offence unproved hence the court proceeded on hearsay evidence which is against the law and against the sexual offences laws. 7. That the learned magistrate ought to have noted that the act of unnatural offence was not properly established and therefore convicting the Appellant with the alleged offence was purely against the laws and unconstitutional. Based on the above grounds of appeal, the Appellant in his Petition of Appeal prayed to this court to allow the appeal, quash and set aside conviction and sentence imposed on him by the trial magistrate and to order his release from prison forthwith. The Appellant was undefended while Mr. Maugo, the learned State Attorney represented the Respondent/Republic. He supported conviction and sentence imposed on the Appellant by the trial magistrate. In grounds 1, 2 and 7 of the Petition of Appeal filed by the Appellant, the main contest or issue by the Appellant is that the prosecution side in the trial court did not prove the charge of Unnatural offence against him beyond reasonable doubt or that the evidence adduced by the prosecution witnesses was insufficient to warrant conviction of the Appellant. That is the issue to be considered and determined by this court in the said grounds of appeal. However, Mr. Maugo, the learned State Attorney in his submission before this court has revisited the evidence j of the prosecution’s witnesses on record and vehemently submitted that the prosecution side in the trial in the lower court proved the charge of unnatural offence against the Appellant beyond reasonable doubt and that the trial magistrate had properly applied his mind to the evidence on record in convicting the Appellant with the charge of unnatural offence against P.W .l, the victim. I have carefully read the evidence on record, the Judgment of the trial magistrate and carefully considered the above named grounds of appeal as well as the submission of the learned State Attorney before this court in respect of the main issue in the said grounds of appeal. I am satisfied that the trial magistrate had properly applied his mind and evaluated the evidence adduced by the witnesses of the prosecution side as well as the defence evidence and was convinced that the evidence of the prosecution witnesses was trustworth, credible and sufficient hence he convicted the Appellant as charged. He mainly convicted the Appellant based on the evidence of P.W .l, the victim and that of P.W.5, the medical witness who had examined P.W.l. The evidence of P.W.l on record, which I fully subscribe to shows clearly that on the material day, P.W.l went to the bushes to hunt hares where he met the Appellant who was also hunting. The Appellant told P.W.l that they should go further in the bushes for hunting and P.W.l agreed. However, while still in the bushes thereto, the Appellant as per the evidence of P.W .l, the victim forced him to lie down, undressed his clothes, put his penis in the buttocks of P.W.l and thereby sodomised him against the order o f nature. P.W.l failed to shout or raise any alarm because the Appellant had threatened to kill him if he did. Having finished sodomising P.W .l, the Appellant went away. On his return home, P.W.l who was a child of 11 years by then could not inform his mother (P.W.2), he informed P.W.3 who in turn informed P.W.2. Subsequently, the Appellant was arrested and taken to the police. P.W.5, the medical witness who examined P.W.l in her evidence before the trial magistrate stated that she had found whitish dry stuff (sperms) and bruises in the buttocks of P.W.l and she sent him to Mwanga Hospital for further treatment. PF3 stating to the said effect was tendered in the trial court by P.W.l and admitted as Exhibit “P I” which the Appellant did not object or challenge during the trial in the lower court. Therefore, I am satisfied that the aforesaid evidence of the said prosecution witnesses adduced in the trial court had proved that the Appellant had committed unnatural offence against the Appellant as charged. In other words, grounds 1, 2 and 7 of the appeal have no merit. I so declare. In ground 3 of the Petition of Appeal, the Appellant contends that P.W .l, P.W.2 and P.W.3 were relatives hence they framed the case against him for their benefit. He also contends that P.W.5 failed to produce any medical document to prove that the evidence she gave in the trial court was correct and corroborating. First, the issue of P.W .l, P.W.2 and P.W.3 being relatives hence they framed the case against the Appellant in my considered view has no merit. As stated by Mr. Maugo in his submission all what the trial court considered is that their evidence was credible, trustful and sufficient to convict the Appellant. Having perused the evidence on record, I am satisfied that this issue is an afterthought on the part of the Appellant as he did not cross - examine the prosecution witnesses on the said point in the trial court nor did he canvass the same in his defence evidence in the said court. Secondly, as to the Appellant’s contention that P.W.5 failed to produce any medical document to prove that her evidence in the trial court was correct and corroborative, I am of the considered view that if medical report or document is required then the said requirement was fully met on admission of the PF.3, that is Exhibit P.l by P.W.l at the trial court. The Appellant did not quarry or cross - examine P.W.5 on the matter in the trial court when the said witness was adducing evidence. In another similar contest, the Appellant in ground 6 of his Petition of Appeal contends that the failure of the prosecution to tender medical report from Kileo Dispensary or Mwanga Hospital left the whole offence unproved hence the trial court proceeded on hearsay evidence contrary to the law. Mr. Maugo, the learned State Attorney in his submission replied that there was in the trial court the evidence of P.W.5 who was a medical witness (M.C.H. Aid at Kileo). Indeed, the Appellant in the trial court did not challenge or raise the contest stated in ground 6 of his Petition of Appeal. In my considered view and as I have above stated, that if any medical report was required to corroborate the evidence of P.W .l, then Exhibit P.l, sufficed plus the evidence of P.W.5, the medical witness. The trial magistrate in his Judgment applied his mind to the said evidence in convicting the Appellant. Therefore, I hold that ground 3 and 6 of the appeal are not meritous. In ground 4 of the Petition of Appeal, the Appellant contends that if the alleged offence was done to P.W.l then he could have gone home crying and bleeding in such pain but instead he just informed P.W.3 and went to hiding hence this clearly shows that, there was no such act which was done to P.W .l. On the other hand, Mr. Maugo, the learned State Attorney had revisited the evidence that was adduced in the trial court and now the trial magistrate based on the said evidence convicted the Appellant. First, there is evidence of P.W.l on record that the j Appellant had held him by the neck and told him that if he shouted he would kill him. In my considered view, in view of the said threat, P. W. 1 who was a mere child aged 11 years could not cry when going home for the said threat that was still lingering in his mind. Secondly, the contest of the Appellant is not solid, in view of the evidence of P.W.l which was corroborated by the evidence of P.W.5, the medical witness plus the PF3, that is Exhibit “P .l” which in my considered view proved beyond reasonable doubt that the Appellant had committed the unnatural offence against PW. 1, that is he had sodomised him. Therefore, I hold that ground 4 in the Petition of Appeal has no merit. In ground 5 (erroneously written ground 6), the Appellant contends that the trial magistrate erred in law and fact for manifestly such on excessive sentence to the Appellant without first evaluating the evidence given before the court by both parties, the learned magistrate also ought to have considered that the Appellant had grudge with the mother of P. W. 1 and that could raise an issue like the case against him. First, as ably demonstrated by Mr. Maugo when revisiting the evidence that was adduced in the trial court and as can be seen in the Judgment of the trial magistrate, the latter properly evaluated and applied his mind to the evidence of the prosecution witnesses and the defence evidence adduced before him. He based conviction of the Appellant on the evidence of P.W.l and P.W.5 and rejected the defence of alibi advanced by the Appellant and his contention that he had grudges with the mother (P.W.2) of the Appellant. Secondly, as to the contention of grudges, the trial magistrate held and rightly in my considered view that the Appellant did not raise the same in his defence evidence but raised it when he was being questioned by the public prosecutor. Thirdly, the trial magistrate, as I have earlier stated convicted the Appellant based on the evidence of P.W .l and P.W.5 having been satisfied that it was credible hence the issue of alleged grudges did not form part of the conviction reached by the said magistrate. In the said ground 5 of the appeal, the Appellant contends that the trial magistrate had imposed manifestly excessive sentence on him. The Judgment of the trial magistrate shows that having convicted the Appellant, he sentenced him to 20 years imprisonment. That was on 13/11/97, the date when the trial magistrate delivered his Judgment. My proper reading of Section 154 (1) of the Penal Code, Cap. 16, Vol. 1 on which the Appellant was charged shows me that on the date (15/11/97) the Appellant was convicted of unnatural offence under the said section, the said provision of law provided that a person found guilty of the said offence was j liable to fourteen years imprisonment. So the sentence of 20 years that the trial magistrate had imposed on the Appellant was manifestly excessive and unlawful. On the premise, I quash and set aside the said sentence of imprisonment imposed on the Appellant by the trial magistrate. Taking into account the mitigation of the Appellant in the trial court that he was a first offender as also conceded by the prosecution side I hereby substitute the said sentence to a term of 12 years imprisonment effective 13/11/97. In the upshot, this appeal has no merit save for the sentence of imprisonment of 20 years imposed on the Appellant which I have quashed and set aside and substituted it with 12 years imprisonment effective 13/11/97. Otherwise, I uphold the conviction imposed on the Appellant by the trial magistrate. It is so ordered. Vv-i^zvv. F.A.R. JUNDU JUDGE 25/9/2006 Right of Appeal Explained. F.A.R. JUNDU JUDGE 25/9/2006 25.9.2006 Coram: F.A.R. Jundu, J. For the Appellant: present For the Respondent: Miss Mlay, State Attorney. C/C: Matiku Court: Judgment delivered in the presence of the Appellant and in the presence of Miss Mlay, learned State Attorney for the Respondent/Republic. F.A.R. JUNDU JUDGE 25/9/2006 AT MOSHI