IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
SHINYANGA SUB REGISRTY
AT SHINYANGA
CRIMINAL APPEAL NO. 14314 OF 2024
(Originated from Criminal Case No. 28/2022 from Meatu District Court at Mwanhuzi)
BETWEEN
NGELEJA JOHN @ STEPHANO ……………………………APPELLANT
VERSUS
REPUBLIC…………………………………………….……. RESPONDENT
JUDGMENT
18th June & 28th June, 2024
MASSAM, J.:
The District Court of Meatu at Mwanhuzi (hereinafter the trial court) tried the appellant, Ngeleja s/o John @ Stephano who stood charged with two offences, firstly, Unnatural offence C/S 154 (1) (a), (2) of the Penal Code, Cap 16, R. E, 2002 and secondly, Attempt to commit unnatural offence C/S 155 of the Penal Code, Cap 6 R.E 2019.
The prosecution initially alleged that, on the 17th day of April, 2020, at Mwanhuzi Town within Meatu District in Simiyu Region, the accused now appellant did have carnal knowledge with one "P B" aged ten (10) years old, against the order of nature. The prosecution alleged further that, on the same day the appellant attempt to have carnal knowledge with one “PN”’ a boy of ten (10) years old, against the order of nature. The appellant noticeably pleaded not guilty to the charge of unnatural offence and attempt to commit unnatural offence against the order of nature.
The factual evidence adduced by the prosecution side during trial, which led to the trial court's satisfaction that, the appellant's guilt was proved to the required principle in administration of criminal justice is as follows. The victims, PW1 and PW3 (both aged 10 years old) on the material date at about 18:00 they were at Mwanhuzi bus stand watching TV. Thereafter, PW3 told PW1 to escort him at home and they saw the appellant who reside at Mtoni area near Sabato church. The appellant suddenly grabbed their hands told them “twendeni nikawape adhabu’’ and took them to Mwanhuzi Primary Court’s shrubs. He told them to undress their short and trouser and then penetrated his penis into the PW3’s anus while holding the hand of PW1. When he was continuing sodomizing PW3, PW1 was able to run after he escaped from appellant’s hand and went direct to PW2 who is the Reverend namely Enock Daudi. PW1 found PW2 with a teacher and shows them where the incident took place, he could not talk due to palpitation after running. They went at the scene of crime and found PW3, the appellant was already gone.
Thereafter, PW2 went at the police station with PW1 who explained what happened and then he took them to PW3’s house. At PW3’s house they found PW3 and her mother, they told her mother what happened and asked PW3 who confirmed it. They took PW3 at the police station and then at the hospital for examination where PW5 confirmed that he was sodomized and filed PF3 which was admitted and marked as PE1. The appellant was apprehended and brought before the court.
When given an opportunity to defend, the appellant gave his sworn testimony and patently denied to have committed the alleged offences. He stated that on 1/3/2020 he went to Misasi at Mwanza for mining activities, and he returned on 6/5/2020 and 4 days later he was copped for this case. That, at the police station he was interrogated and denied having committed the offence. He added that, the police took him for DNA test but no result which was submitted before this court. Also, he was of the view that the prosecution failed to prove their case beyond reasonable doubt. Again he said that his evidence was supported by DW2 and DW3 who said that the appellant was at the mining since March up to May when he returned and then be arrested.
At its conclusion, the trial court found the appellant guilty of both offences. He was then sentenced to serve life imprisonment for the 1st count of unnatural offence and the term of twenty (20) years' imprisonment in respect of the 2nd count. Aggrieved by the trial court's conviction and sentence, the appellant is now before the court armed with the following grounds of appeal;
That, the trial court erred to convict and sentence the appellant without a case proved by prosecution side as follows: - PW1 his friend PB he run direct to the priest that because he was hardly breathing under palpitation, he could not speak to the priest but pointed at the scene of the attempt event, they went at the pointed event but they could not find anyone. Thus, the PB breathing and palpitation is/was meritless, neither collaboration evidence to PW1 after PB failed to mention the participant of the alleged savagery immediately to priest.
That, the doubt is that PW2 testified that at the scene of crime, they did not find anybody but glasses were laid, the said glasses was laid by snake extra, because there was no any foot of the human being or any mark of the person’s foot found at the area scene.
That, the (police side) prosecution side failed to prove its case beyond reasonable doubt against the accused (appellant) as follows: After, PW2 Mch. Enock Daud of Free Pentecostal Church of Tanzania (FPTC) PN escaped and run direct to priest (PW2) they went at pointed area without could not found any one, then went direct to the police station at Meatu instead reporting the event first to the local leaders or street chairman. Thus, it cast the gravity doubtless why they run to police station which is far instead of nearly village chairman.
That, in PW1’s evidence was not clearly shows how identified of the appellant sufficiently on physical appearance, clothes he wears or any peculiar mark of identify.
That, the trial court contravened of Section 127 (3) of the Evidence, Cap 6 R.E 2019 on his judgment that the victims were at 11 years of age each, their testimony were straight and clear each without complete with word are telling the truth or are telling nothing but the truth.
That, under section 395 A of CPA Cap 20 R.E 2019 DNA was not conducted or made by prosecution side.
That, the defence side was not considered by the Hon. Court.
Hearing of this appeal was orally conducted whereby the appellant appeared in person whilst Mr. Saguya, the learned state attorney represented the Republic, respondent. I shall accordingly consider the parties' submissions while determining the grounds raised by the appellant.
I will start with the 1st, 2nd and 3rd grounds of appeal which deals with whether the case against the appellant was proved beyond reasonable doubts. The appellant stated that he was wrongly convicted by the trial court by relying on one side of the prosecution and he was not given a chance to defend himself. He prayed for the court to left him free.
On his side, Mr. Saguya while opposing the appeal stated that in proving the case, the prosecution brought six witnesses whose evidence were so strong especially the evidence of PW1 who explained what happened on 14/4/2020. He explained what PW1 told them that on the material day they met the appellant on the road who grabbed their hand and told them he was going to give them punishment and took them to bushes, told them to undress and then started to sodomize PW3. He added that when PW3 was taken to hospital for examination, PW5 proved that he was sodomized as evidenced by Exhibit PE1 (PF3).
Mr. Saguya stated further that when PW1 and PW2 went at the scene they did not found the appellant and no footprints was found due to grass surrounded the area. He argued further that in sexual offences the best evidence come from the victim as it was elaborated in the case of Efeso Wasita v. The Republic, Criminal Appeal 408/2020(CAT at Mbeya, Reported at Tanzlii). Thus, he argued that PW2 testified what he was told by PW1 whose evidence was also collaborated with that of PW3. Adding to that, Mr. Saguya stated that there is no law which need the offence to be reported at the Village Chairman before reporting it at the police station. Thus, he was of the view that the charges against the appellant were proved beyond reasonable doubt.
Having heard the parties, the issue to be determined is whether the case against the appellant was proved beyond reasonable doubt.
In the instant case, the trial court held that there was proof beyond reasonable doubt that (PB) was carnally known against the order of nature and that the appellant also attempt to have carnally known with (PN). they were both ten (10) years old. The trial court relied on the evidence of PW1 who said that the appellant took them at the bush undress their short and trouser and then took his penis and put into the P B’s anus. Then he was able to escape at the scene leaving PW3 alone and when he reported the matter to PW2 and went back at the scene they found PW3, and the appellant had already gone. His evidence was supported with PW3 who was sodomized by the appellant. PW5 collaborated their evidence by saying that after examination, he found out that the appellant was sodomized.
In the case of Mohamed Haji Ali V. Director of Public Prosecutions, Criminal Appeal No. 225 of 2018 (CAT at Zanzibar, reported at Tanzlii) the court held that:
“However, we are in agreement with Mr. Iddi that the best proof of rape comes from the victim herself”.
See also the case of Selemani Makumba v. Republic [2006] TLR 379 at page 384, where the court also held that, the best evidence of rape comes from the victim herself. Therefore, this court is of the firm view that the charge against the appellant was proved beyond reasonable doubt. Thus, the 1st, 2nd and 3rd grounds of appeal are found with no merit.
Regarding to the 4th ground of appeal, the appellant complained that he was not properly identified in terms of appearance, clothes he wears or any peculiar mark of identity. Opposing this ground, Mr. Saguya stated that as long as PW1 testified to have known the appellant even before the incident and by mentioning his name earlier proved that he was properly identified. In the case of Waziri Amani v. The Republic (1980) T.L.R. 280 the court held that:
“No court should act on evidence of visual identification unless, all possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence is watertight The follow ng factors have to be taken into consideration; the time the witness had the accused under observation; the distance a t which he observed him, the conditions in which such observation occurred for instance whether it was day or night (whether it was dark, if so, was there moon light or hurricane lamp etc.) whether the witness knew or had seen the accused before or not." (Emphasis is mine).
See also the cases of Raymond Francis v. The Republic [1991] T.L.R. 100
Guided by the cited authorities, this court do agree with Mr. Saguya that the appellant was properly identified. The fact that PW1 knew the appellant’s name and where he was living together with mentioning his name earlier proved that the appellant was properly identified. Further as they met at 6:00 pm there was enough light for them to identify him. So, this ground too has no merit.
In respect of the 5th ground of appeal, the appellant complained that Section 127 (3) of the Evidence Act was not complied with as the children did not promise to tell nothing but the truth. Mr. Saguya replied that the evidence of PW1 and PW3 was direct and clear, and they promised to tell the truth after being questioned by the court. This court do support his argument, and the same is evidenced at page 23 and 29 of the trial court’s proceedings when the witness asked them some questions by the court concerning his age, religion and if they know oath and the duty of speaking truth which they answered that the knows the meaning of oath, and proceed to say that lies is the sin before God and if he says lies God will punish them and put them to hell, also they said that they will speak the truth before this court. Therefore, this ground too is dismissed for want of merit.
On ground No. 6 the appellant complained that no DNA test was conducted by the prosecution side as per Section 395 A of the Criminal Procedure Act, Cap 20 R.E 2019. On his side, Mr. Saguya replied that the DNA test is an expert opinion which the court can opt to regard or disregard it. He added that the Court of Appeal held numerous times that DNA test is the weakest evidence and cited the case of Robert Andondile Komba v. D.P.P, Criminal Appeal No. 465 of 2017 (CAT at Mbeya, Unreported). It was held that:
“We have no hesitation to go along with the learned State Attorney. Proof by DNA test is neither a legal requirement nor the practice in jurisdiction. Many a culprit would walk scolt free if that was the case, in our view, and the suggestion question by the appellant is impractical.”
Guided by the cited authority, this court do agree with Mr. Saguya that the issue of DNA test was not one of the ingredients in proving rape cases. So, this ground too fails miserably.
In respect of the last ground of appeal, the appellant complained that his evidence was not considered by the trial court. Mr. Saguya in his reply stated that the trial court did consider his defence especially page no 5 -9 of the judgment, Also, it is not mandated that in order the defence to be considered must be admitted, this is supported in the case of Robert Andondile Komba v. D.P.P (Supra) in page 15-16 the court held that:
“We take view that it is one thing to consider the defence case and it is quite another to accept. It cannot be said the defence case was not considered merely because its versions were not accepted by the court.”
In our case, the appellant’s evidence was considered by the trial court at page 8 of its judgment. The fact that the court did not believe his evidence does not mean it was not considered. So, this grounds too is dismissed for want of merit.
All said and done, I dismiss the appeal in its entirety.
Ordered accordingly.
DATED at SHINYANGA this 28th day of June, 2024.
R.B. Massam
JUDGE
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