IN THE COURT OF APPEAL OF
AT TANGA
(CORAM: MROSO, J.A., KIMARO, J.A. And LUANDA
CRIMINAL
APPEAL NO. 52 OF 2007
JUMA
MASUDI @ DEFAO ……………….………………………….
APPELLANT
Versus
THE REPUBLIC
……………………………………………………… RESPONDENT
(Appeal from
the decision of the High Court of Tanzania
(Mkwawa,
J.)
Dated 30th day of January, 2006
in
Criminal
Appeal No. 104 of 2004
JUDGMENT
OF THE COURT
23rd June
& 12th September, 2008
The
above named appellant was charged in the District Court of Handeni with
unnatural offence contrary to section 154 (1)(a) and (2) of the Penal
Code. He was convicted as charged but
the trial court did not impose sentence.
It forwarded the record to the High Court for sentencing without assigning
any reason for doing so. The appellant
was aggrieved by the conviction, he appealed to the High Court.
The High Court (Mkwawa, J.) seized that opportunity,
not only to hear the appeal which he dismissed, but also passed sentence
whereby the appellant was sentenced to life imprisonment.
Still aggrieved, the appellant has come
to this Court. The appellant has raised
six grounds of appeal. The main
complaint in all the six grounds concerned the age of the victim of the crime;
that her age was not properly assessed or determined.
In this appeal the appellant appeared in
person while the Respondent, the Republic, was represented by Mr. Oswald Tibabyekomya,
learned State Attorney, who did not support the conviction.
Briefly the prosecution case was to this
effect:-
On
the fateful day, that is 14th October, 2002 around 9.00 am Ashura
Chabai (PW 4) and Bahati Rajabu (PW3) both children of tender age and related,
went to a market area within Kabuku
Village
On arrival home she narrated the incident
to Semeni Rashid (PW 5) and described the physical appearance of the person who
sodomized her. PW 5 quickly set out in
search of PW 3’s mother Tamasha Hemedi (PW2) who was in the fields doing shamba
work. PW 5 managed to get PW2 and
returned home. They examined PW 3; they
found blood and excreta were coming out
from her anus. The matter was reported
to Kabuku Police Station where she was given a PF 3 and sent to Kabuku Health
Centre for treatment.
On the same day around 8.00 pm, the
appellant was arrested by villagers and sent to Police Station. D/Sgt Katamija (PW 1) formally arrested the
appellant. He also visited the scene of
crime where he picked the trousers and underwear of PW3 which were tendered in
Court as exhibit. D/Sgt Katamija (PW1)
also tendered the PF 3 of PW 3. That was
the prosecution case.
In his defence, the appellant admitted to
have been arrested on 14.10.2002 around
8.00 pm and sent to police station where his statement was taken. On the following day he was sent to court. He did not say anything about the charge laid
at his door.
As earlier pointed out, the Republic did
not support the conviction. Mr. Oswald
Tibabyekomya gave the following reasons.
One, the tendering of PF 3 by D/Sgt Katamija (PW1) was not proper as he
was not the one who examined the victim.
In the alternative, he said even if it was properly tendered, the
appellant was not informed of his rights as provided under Section 240 of the
Criminal Procedure Act, Cap. 20. He
cited Nyambuya Kamuoga VR Criminal Appeal No. 90 of 2003 CAT (Unreported).
In our case, the medical report PF3 was
tendered by D/Sgt. Kamitaja (PW1). The question is whether the tendering of that
medical report by D/Sgt. Kamitaja (PW1)
was proper in law.
Section
240 (1) of the Criminal Procedure Act, Cap. 20 reads as follows.
240
(1) In any trial before a subordinate court, any document purporting to be a
report signed by a medical witness upon any purely medical or surgical matter
shall be receivable in evidence.
The
above quoted sub-section does not spell out expressly or impliedly as to who is
to produce such document in court. But
when you read this subsection in conjunction with sub-section (3), you will
realize, as we do, that any witness, not necessarily the medical officer who
attended the victim in the prosecution case, is permitted to tender the
document.
The
sub-section reads:-
(3)
When a report referred to in this section is received in evidence the court may,
if it thinks fit, and shall if so requested by the accused or his advocate,
summon and examine or make available for cross-examination the person
who made the report; and the court shall inform the accused of his
right to require the person who made the report to be summoned in accordance
with the provisions of this sub-subsection.
[Emphasis supplied]
There
is no doubt at all that this is an exceptional to the general rule to the law
governing direct evidence so far as the tendering of the medical report by
another person other than the medical officer who did not attend the victim is
concerned.
From
the foregoing therefore, the PF 3 was properly tendered by D/Sgt Katamija
(PW1). Since the report was tendered by
a person other than the medical officer who attended the victim, in terms of
sub-section (3) supra it was the duty of the trial Court to inform the
appellant of his right of summoning and cross – examining the maker of it. This was not done. In Nyambuya case cited supra this Court
held and we quote:-
“……..
it is trite law that once the report (PF 3) was received in evidence through
PW1, the trial court was duty bound to inform the appellant of his right of
cross – examining the doctor who examined PW1 and signed it thereafter.”
This
position was also echoed in Kashana Buyoka VR Criminal Appeal No. 176 of 2004 (unreported) and Sultan
Mohamed VR Criminal Appeal No. 176 OF 2003 (Unreported). It follows therefore, that we will not
consider that evidence in the determination of this appeal.
The
second ground of Mr. Oswald Tibabyekomya was that the clothes which were found
at the scene of crime and which were tendered in court by PW1 were not shown to
PW3 prior to their tendering. We have
gone through the record, there is no indication of the alleged retrieved
clothes to have ever shown to the victim before they were tendered in court. Ordinarily, when the prosecution intends to
tender an article as an exhbit, then such article should first be shown to the
witness for identification purposes before the same is being tendered.
In
our case that was not done. Like the PF 3, it is not safe to rely on such piece
of evidence.
Lastly,
Mr. Oswald Tibabyekomya submitted that as PW3 and PW4 did not know the
appellant by his name, then it is unsafe to rely on such weak evidence of
identification. He was of the considered
opinion that the conduct of an identification parade would have removed that
doubt.
Reacting
to the age of the victim, Mr. Oswald Tibabyekomya said the issue has been
raised for the first time. It was
neither raised during the trial nor before the first appellate court. He advised the Court not to consider it at
all.
Both
courts below were satisfied that PW3 was sodomized; and that the appellant was
the one who did it. In upholding the
finding of the trial court, the High Court said, we quote:-
“
The only question for consideration and decision is whether PW3 had
sufficiently identified her ravisher. It
is apparent from PW3’s version that she knew the appellant before that
date. They were neighbours in the village. The chains of events, as shown in the above
facts show that PW3 spent a considerable period of time with the
appellant. Besides, the incident
happened in the morning, namely, on or about 9. am. Besides, she described her (sic) bodily
features, namely having red eyes, a slight puff on the forehead (a soft
swelling on the forehead) and that she (sic) was wearing Rasta’s on his head
(normally worn by Rasta fashions). There
is also the evidence of PW4 which was to the effect that they had met with the
appellant that morning and that he was lastly seen with her that morning
shortly before the sodomy incident”.
The High Court relied on the evidence of
PW3 and PW4 to uphold the conviction.
However, it did not state categorically whether the evidence of PW4
corroborated that of PW3. Whatever the
position, we are of the firm view that the bodily description of the appellant
including a swelling on his forehead lends support to PW3’s version. And as the incident took place around 9am the
question of mistaken identity is out of place.
We are therefore unable to agree with Mr. Oswald Tibabyekomya on the
need to conduct an identification parade.
We are satisfied that the appellant was properly convicted.
As we mentioned earlier, the trial court
forwarded the record to the High Court for sentence. Presumably, the trial court thought it had no
powers to impose a sentence of life imprisonment. The trial court had jurisdiction to impose
that sentence.
Section 170 (1) (a) and (3) of the
Criminal Procedure Act, Cap. 20 limits the sentencing powers of the subordinate
courts to a maximum of five years imprisonment, save the offences specified in
any of the schedules to the Minimum Sentences Act or in relation to any offence
specified in any written law. The
section read;
(a)
Imprisonment for a term not
exceeding five years, save that where a court convicts a person of an offence
specified in any of the schedules to the Minimum Sentences Act which it has
jurisdiction to hear, it shall have the jurisdiction to pass the minimum
sentence of imprisonment.
(b)
N/A
(c)
N/A
(3) The
provisions of subsection (1) shall be without prejudice to the provisions of
any written law authorising a subordinate court to impose in relation to any offence
specified in such written law, a sentence in excess of the sentences
provided for in that subsection.
In dealing with sub-section (3) [which was sub-section 4
then before the amendment vide Act 4 of 1998] quoted supra, in Leonard
Raphael & another VR Criminal Appeal No. 4/1992 (unreported) this
Court held, we quote:-
“
This subsection in effect lifts, in certain cases, the limitation imposed by
subsection (1) of section 170. That is
for say, the limitation ceases to apply in relation to any schedule offence or offence
where the law prescribes for such scheduled offence a minimum prison sentence
longer than the maximum of five years imprisonment which subordinate court
is empowered by subsection (1) to pass for scheduled offences generally.”
[Emphasis Ours]
Section 154 (2) of the Penal Code, Cap. 16 provides:-
154
(2) Where the offence under subsection (1) of this section is committed to a
child under the age of ten years the offender shall be sentenced to life
imprisonment.
In
view of the foregoing, the trial Court had jurisdiction to impose the sentence
of life imprisonment for this offence if the victim is under the age of ten
years.
In
imposing the sentence of life imprisonment, the learned Judge was satisfied
that the victim was eight years of age. We have carefully considered the
matter, we are of the different view.
The victim herself said, before she gave evidence, she was eight years
of age. But her mother Tamasha Hemedi
(PW2) told the court that, her daughter was nine years of age. We are of the settled mind that the victim
might as well be ten years, in view of this uncertainity. We think the court, under those circumstances,
was duty bound to investigate the age of the victim. Since that was not done, we give the
appellant the benefit of doubt. So, we take the victim at the time of the
incident to be ten years of age. The
effect of that is that, the sentence of life imprisonment can not stand. The same is set aside and in its stead we
impose a sentence of thirty years imprisonment.
In
the upshot, the appeal is dismissed, save the variation on sentence. Order accordingly.
DATED AT
DAR ES SALAAM this day
of July, 2008.
J.A.
MROSO
JUSTICE
OF APPEAL
N.P. KIMARO
JUSTICE
OF APPEAL
B.M.
LUANDA
JUSTICE
OF APPEAL
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