Juma Masudi @ Defao v. Republic, Cr app no 52 of 2007 (unnatural offence)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:  MROSO, J.A., KIMARO, J.A. And  LUANDA, J.A.)

CRIMINAL APPEAL NO.  52  OF 2007

JUMA MASUDI  @ DEFAO ……………….…………………………. APPELLANT

Versus

THE REPUBLIC ……………………………………………………… RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Tanga)

(Mkwawa, J.)

Dated  30^th day of January, 2006

in

Criminal Appeal   No. 104 of 2004

JUDGMENT OF THE COURT

23^rd June & 12^th September, 2008

LUANDA, J.A.

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 14^th 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, Handeni District.  On their way back home they met with the appellant who asked them to buy for him a plastic bag where he would put rice which he was holding in a news paper.  PW4 refused and walked away towards home leaving behind the appellant and PW3.  It is the evidence of PW3 that the appellant led her into a shamba, a bit far from the road.  The appellant undressed her and removed his trousers.  She was sodomized.  PW3 was unable to raise an alarm as she was warned not to do so otherwise she would be beaten.  Then the appellant walked away.  PW3 returned home with difficulty because not only blood came out from her anus but it also discharged excreta.  She left behind her trousers and underwear; but  remained with her gown.  

        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;

170(1) A Subordinate Court may in the cases in which such sentence are authorized by law, pass any of the following sentence:-

(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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