Vumi Liapenda Mushi vs Republic (Criminal Appeal No. 327 of 2016) [2018] TZCA 197 (12 October 2018)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MMILLA. J.A.. MZIRAY. 3.A. And KWARIKO. J.AT CRIMINAL APPEAL NO. 327 OF 2016 VUMI LIAPENDA MUSHI............................................................APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Sumari.Jl dated the 4th day of July, 2016 in Criminal Appeal No. 29 of 2016 JUDGMENT OF THE COURT 10th & 12th October, 2018 MZIRAY. J.A.: The appellant was charged in the District Court of Moshi with unnatural offence. According to the charge sheet, the appellant was charged under S.154 (1) (a) of the Penal Code, Cap 16 R.E 2002. It was alleged that on diverse dates in the months of December, 2013, February and March, 2014 at Uru area within the Moshi Municipality in Kilimanjaro Region, the appellant did have carnal knowledge of one L.L. (name withheld) against the order of nature. i After a full trial in the District Court, the learned trial Resident Magistrate found that the prosecution had proved its case beyond reasonable doubt. He then proceeded to sentence the appellant to thirty (30) years imprisonment. The appellant was aggrieved and thus appealed to the High Court. He was unsuccessful as his appeal was dismissed. Aggrieved further, he has appealed to this Court. The appellant's memorandum of appeal contains ten grounds of appeal challenging the weakness of the prosecution evidence upon which his conviction was based. However, the major complaints can conveniently be condensed into four major grounds. First, that the prosecution witnesses were not credible. Second, that key witnesses were not summoned to testify. Third, that the charge sheet was defective. Fourth, that the appellant was convicted on very shaky and unsatisfactory evidence as the prosecution had failed to prove the charge beyond all reasonable doubts. Five witnesses testified against the appellant during trial. These were Digna Mushi (PW1), Marselina Alex Mushi (PW2),The victim who testified as PW3, Dr Haruna Bakari (PW4) and DC Sophia (PW5). The 2 evidence adduced shows that on 14/3/2014 about 6:45 hrs PW1, a teacher at Mawella Primary School was at YMCA area in the Municipality of Moshi waiting for public transport. While there, she saw the victim (PW3) in the company of one Fremate. Both were students of Mawella Primary School. PW1 asked them where they were going at that particular time. They replied that they were going to Mbuyuni to sell the appellant's fruits. PW1 took them to school and upon further interrogation PW3 said that they were living with the appellant and that all the time the appellant had been sodomising them. This information shocked her. She reported the matter to PW2, the Ward Executive Officer (WEO) who thereafter reported the same to police station where PF 3 was issued to the victim to be medically examined. Subsequently, the appellant was arrested and charged in connection with the offence. In defence the appellant completely denied involvement. He denied also to have been staying with the victim for one year. At the hearing of this appeal, the appellant appeared in person and unrepresented while Ms Angelina Chacha, learned Senior State Attorney appeared for the respondent Republic. When called upon to argue his 3 appeal, the appellant adopted his grounds of appeal and opted to respond after the learned Senior State Attorney had made her submission. On her part, the learned Senior State Attorney supported the appeal. She said, the prosecution evidence led to support the charge against the appellant was not sufficient to convict the appellant. Her contention was that the evidence that implicated the appellant was that of PW3, the victim. She pointed out that PW1, PW2, PW4 and PW5 were not eye witnesses to the commission of the offence and that whatever they were told about the commission of the offence was hearsay evidence which had no evidential value. The learned Senior State Attorney submitted further that PW3, the victim at the time of testifying was 14 years old. He gave unsworn evidence which in law requires corroboration. The said evidence cannot be acted upon because the same was not corroborated. She said, citing the cases of Mkubwa Said Omari V. S.M.Z (1992) T.L.R 365 and Kimbute Otiniel V. R, Criminal Appeal No. 300 of 2011 (unreported) that the evidence of PW1, PW2, PW4 and PW5 being hearsay evidence 4 could not corroborate the testimony of PW3 because the evidence which requires corroboration cannot corroborate another evidence. She submitted further that the evidence of PF3 also had no value whatsoever in this case as the doctor who examined the victim found nothing suggesting that the victim was sodomised. She further stressed that since the victim told his mother that he and his fellow (Fremate) were living with the appellant then, the victim's mother and this Fremate were material witnesses who could have corroborated the evidence of PW3 but the two were not called by the prosecution to testify. The learned State Attorney also pointed out that, there was variance in the averments of the charge sheet and the evidence of the victim which should be resolved in favour of the appellant. From the foregoing, the learned Senior State Attorney was of the strong view that the prosecution evidence did not conclusively prove that it was the appellant who committed the offence. She prayed that the conviction be quashed and the sentence be set aside. We on our part, after a careful analysis of the evidence on record, the judgment of the trial court, the memorandum of appeal and the 5 submissions made in support of the appeal, would like to make the following observations. It is evident from the record that PW1, PW2, PW4 and PW5 did not witness the incident. Their evidence was indeed hearsay. Hearsay evidence is of no evidential value. The same must be discredited. Having discredited the evidence of PW1, PW2, PW4 and PW5, the evidence that remains on record implicating the appellant with the offence is the unsworn evidence of PW3. It is trite law that unsworn evidence needs corroboration. See for instance Selemeni Mwitu v. The Republic, Criminal Appeal No 90 of 2000, Deemay Daati and two others v. Republic, Criminal Appeal No 80 of 1994 and Herman Henjewele v. Republic, Criminal Appeal No. 164 of 2005 (all unreported). Since the evidence which itself requires corroboration cannot act as corroboration as pointed out in the case of Mkubwa Said Omari (supra) then, the evidence of PW3 could not be corroborated by the evidence of PW1, PW2, PW4 and PW5. The only evidence which perhaps would have corroborated the testimony of PW3 would have 6 been that of one Fremate who was allegedly living together with the victim and the appellant, but this person was not called by the prosecution and no explanation was given for such failure. On that basis, we agree with the learned Senior State Attorney that there was no evidence on record, which could amount to corroboration and implicate the appellant with the charged offence. The PF3 unfortunately did not support the case for the prosecution. We say so because there is nowhere in the PF3 suggesting that the victim was sodomised. Another thing we noted in the charge sheet at page 1 of the record is that, it alleges that on different dates in the month of December, 2013, February and March, 2014 the victim was sodomised by the appellant, however, in his evidence PW3 mentioned the incident to have happened only in the year 2013. It is clear that there is variance in the charge and the evidence of PW3 which should be resolved in favour of the appellant. In view of what we have demonstrated above, we find merit in the appeal. The guilt of the appellant was not proved beyond reasonable 7 doubt. In the event, we allow the appeal and accordingly quash the conviction and set aside the sentence. The appellant is to be released from prison forthwith unless he is otherwise lawfully held. It is so ordered. DATED at ARUSHA this 12th day of October,2018. B. M. MMILLA JUSTICE OF APPEAL R. E. S MZIRAY JUSTICE OF APPEAL M. A. KWARIKO JUSTICE OF APPEAL I certify that this is a true copy of the original. B.AjlMpepo DEPUTY REGISTRAR COURT OF APPEAL 8