Jerome Peter Kavishe vs Republic (Criminal Appeal No. 446 of 2021) [2024] TZCA 1054 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI ( CORAM: MWARI3A. 3.A.. KAIRO, 3,A. And FELESHI, 3.A.V CRIMINAL APPEAL NO. 446 OF 2021 3EROME PETER RAVISHE . ................ . ......................... . .......... . APPELLANT VERSUS THE REPUBLIC ................. . ............ . ....... . ................. .......... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Mkapa, J.) dated the 23rd day of August 2021 in Criminal Appeal No. 06 of 2021 JUDGMENT OF THE COURT 29th October & 05th November, 2024 MWARIJA, J.A.: The appellant, Jerome Peter Kavishe @ Kidame was charged in the District Court of Rombo at Mkuu with unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Chapter 16 of the Revised Laws (the Pena! Code). The particulars of the offence were that, on 20/12/2018 at about 14:30 hrs at Mom we Village within Rombo District in Kilimanjaro Region, the appellant had carnal knowledge of "RP" (name withhold), a boy aged eight (8) years

against the order of nature. He shall hereinafter be referred to as the "victim". The appellant denied the charge thus compelling the prosecution to call a total of six witnesses to testify. After a full trial, the learned trial Resident Magistrate was satisfied that, the case against the appellant had been proved beyond reasonable doubt. He was consequently convicted and sentenced to life imprisonment. Aggrieved by the decision of the trial court, the appellant unsuccessfully appealed to the High Court hence this appeal. The background facts giving rise to the appeal may be briefly stated as follows: The victim was until the materia! time staying with his aunt, one Anusiatha Laurent (PW1). The appellant is PW l's brother in-law and thus a relative of the victim. Gn the material date, the appellant was sent by PW1 to collect her child, oneLightness from the nearby home of one Mama Gift. He could not return early and after about 30 minutes, PW1 decided to make a follow up. While on the way, near the home of the appellant's mother, she saw the appellant in the company of the victim sitting together in a suspicious manner. Without drawing their attention, PW1 went to call other persons to witness the incident. When those persons; Lucian, Heavenlight and

Anita arrived, the victim was called and questioned. He allegedly disclosed that, the appellant had carnally known him against the order of nature. The appellant was arrested by the Ward authorities and taken to Mashati Police Station. He was consequently charged in court. According to PW l's evidence, before she arrived at Mama Gift's house she saw the victim at the appellant's home on a bench while the victim, whose short had been pulled down to his feet, was sitting on the appellant's lap. It was her further evidence that, when she returned to the appellant's home in the company of the named persons, she questioned the victim. He told them that, while going to Mama Gift's house, he was called by the appellant and after entering his house, the appellant did molest him by having carnal knowledge of him against the order of nature. The victim, who testified as PW3, testified on how the appellant ravished him. He stated that, on the material date at about 14:00 hrs while on the way, near the house of the appellant's mother, the appellant called him. When he entered in the house, the appellant, who was alone in the house, started touching the victim's buttocks and penis and proceeded to remove his pairs of shorts. He then told him to bend and after also removing his clothes, the appellant inserted his

penis into the victim's anus. The victim went on to state that, he felt pain and cried but was told by the appellant to be silent. He said further that, after the incident, they went outside and sat on a bench and while there, PW1 arrived and called him. He added that, it was not the first time for the appellant to molest him but that, he had been doing so on several occasions warning the victim not to disclose it to anyone lest he would be killed with a machete. Apart from PW1, the evidence of the victim was support by Heavenlight Onesphori (PW2) and Eiiano Steven Mgasse (PW5). PW2 testified that, on the material date, she accompanied PW1 to the appellant's house where they found the victim with the appellant and upon being questioned, the victim disclosed that, on that date, the appellant did have carnal knowledge of him against the order of nature. On his part PW5, the Doctor who examined the victim, confirmed that he was penetrated. According to his evidence, upon his examination, he found that, the victim's anus had been penetrated by a blunt object. The witness tendered the victim's medical report (P.F.3) and the same was admitted in evidence as exhibit PI. The arrest of the appellant was facilitated by Protas Sebastian Shirima (PW4) the Village Executive Officer, Mrao. Testifying in the

trial court, he stated that, on 20/12/2018, he met PW1 who informed him about the incident. He went to the appellant's home and after his arrest, was taken to Mashati Police Station. After investigation of the case, which was conducted by G.1893 D/C Missana (PW6), the appellant was charged as shown above. In his defence evidence, the appellant who testified as DW1, admitted that the victim is his relative, stating that, he is his brother's son. With regard to the offence charged, his defence evidence was brief. He contended that, the case was framed against him by PW1 (Mama Lightness), his in-law because of existing grudges between them arising from his advice to her and his family to construct their own house. He stated further that, PW3's evidence was a lie, having been coached by PW1 to do so. He admitted however, that, he did not have grudges with the victim. The appellant's mother, Alphonsina Peter, testified as DW2. She told the trial court that, she did not witness the incident and therefore, could not tell whether the appellant had committed the charged offence against the victim who is her grandson.

As stated above, at the conclusion of the trial, the learned trial Resident Magistrate considered the evidence adduced by both sides and found that, the prosecution had proved its case beyond reasonable doubt. The court was of the view that, the victim, who was well known to the appellant, adduced credible evidence on how the appellant ravished him, the evidence which was supported by medical evidence (exhibit PI) tendered by PW5 showing that, penetration, one of the elements of the offence, was proved. On the appellant's defence, after having considered some authorities including the High Court decision in the case of John Makolobela, Kulwa Makolobela and Erick Juma @ Tanganyika v. Republic [2002] T.L.R 296 on the burden of prove in criminal cases, the trial court was certain that, the defence did not raise any reasonable doubt against the prosecution evidence. As pointed out above, the High Court upheld the finding of the trial court. It dismissed the six grounds of appeal raised by the appellant mainly based on the credibility of the witnesses' evidence and allegations of breach of the procedural law. It found that, the evidence of the witnesses, particularly PW3, was credible and thus proved the case against the appellant beyond reasonable doubt.

With regard to the procedural error on non-compliance with section 230 (3) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA) complained of by the appellant, the High Court found that, the omission was a minor one and was thus curable under section 388 of the CPA because it did not prejudice the appellant. Reliance was placed on the case of Flano Alphonce Masalu @ Singu v. Republic, Criminal Appeal No. 366 of 2018 (unreported). In his appeal before the Court, the appellant has raised a total of eleven grounds of complaint. Seven grounds were raised in the memorandum of appeal filed on 8/11/2021 and four in the supplementary memorandum lodged on 18/10/2022. The grounds may be consolidated into the following seven grounds:

1. That, the learned first appellate Judge erred in law and fact in upholding the appellant's conviction while the charge was defective for being in variance with the evidence.
2. That, the High Court erred in law and fact in upholding the decision of the trial court which was erroneous for failure by the learned trial Resident Magistrate to comply with the provisions of section 231 of the CPA.
3. That, the learned first appellate Judge erred in law and fact in upholding the appellant's conviction based on

the evidence of PW3 which was received in breach of section 127 (2) of the Evidence Act, Chapter 6 of the Revised Laws. 4. That, the High Court erred in law and fact in upholding the decision of the trial court based on the evidence of exhibit PI which was tended by the Prosecuting Attorney instead of the witness. 5. That, the learned first appellate Judge erred in law and fact in upholding the conviction of the appellant while the trial court had acted not only on weak, unreliable and hearsay evidence but on the evidence which was tainted with contradictions and inconsistencies. 6. That, the learned first appellate Judge erred in law and fact in upholding the appellant's conviction while the prosecution did not prove its case beyond reasonable doubt. 7. That, the learned first appellate Judge erred in law in failing to find that, the appellant was wrongly sentenced to life imprisonment because the victim's age was not proved. At the hearing of the appeal, the appellant appeared in person, unrepresented while the respondent Republic was represented by Ms. Rose Sulle, learned Senior State Attorney assisted by Mr. Isack Mangunu, learned State Attorney. When he was called upon to argue his grounds of appeal, the appellant opted to hear first, the

respondent's reply and thereafter would make a rejoinder, should he found it necessary to do so. After the learned State Attorney had concluded her submissions, the appellant did not have any substantial arguments to make. He merely urged us to consider his grounds of complaint and allow his appeal. Submitting in reply to the 1st ground of appeal, Ms. Suile argued that, the contention by the appellant that there was variance between the charge and the evidence is unfounded. She submitted that, none of the witnesses' evidence was to the effect that, the offence was committed else where other than at Mwomwe village as stated in the charge. Indeed, from the record, the testimony of ail the witnesses except PW5, who examined the appellant at the Hospital, was that, the offence was committed at the appellant mother's house, which, according to PW4, is situated at Mwomwe Village. It was also PW6's evidence that, according to his investigation, the offence was committed in the said Village. On that basis, we agree with the learned Senior State Attorney that, the 1st ground of appeal is devoid of merit and as a consequence, dismiss it.

With regard to the 2n d ground of appeal, we need not be detained much in disposing it of. Ms. Sulle's argument was that, the same was misconceived. We respectively agree with her. In the trial court's ruling at page 22 of the record, the learned trial Resident Magistrate complied with section 231 of the CPA as evidenced by the following excerpt: "The witnesses have made a prim a fade case against him. U/S 231 o f the CPA CAP 20 R .E 2022 the accused has a case to answer. Accused: I w ill d e fe n d on o ath a n d n o w itn e s s." [Emphasis added] From the bolded words above, it is clear that the appellant was informed of his rights under section 231 of the CPA and chose to give his evidence on oath. He also informed the court that, he did not have a witness to call, although later on, he called one witness to testify in his defence as shown above. This ground is therefore, also lacking in merit. It is hereby dismissed. As for the 4th ground, Ms. Sulle opposed the appellant's contention that exhibit PI was not tendered by the witness. With

upon even though it was given without oath or promise. We could not, therefore, find any justifiable reason to interfere with the decision of the High Court, - See for instance, the cases of Joseph Leonard Manyota v. Republc, Criminal Appeal No. 485 of 2015 (unreported) and Hassan Said v. Republic (Criminal Appeal No. 264 of 2015) [2015] 77CA 322 (15 April 2016). This finding suffices to dispose of the 6th ground of appeal in which the appellant contended that, the prosecution did not prove its case beyond reasonable doubt. That said, we dismiss the 3rd, 5th and 6th grounds of appeal for want of merit. Lastly on the 7th ground of appeal, Ms Sulle argued in response that, the age of the victim was proved to be eight years. She referred us to the evidence of the victim (PW3), PW5 and PW6. It was therefore, her submission that, the sentence of life imprisonment was proper. From the evidence on record, we are in agreement with the learned Senior State Attorney that, the victim's age stated in the charge was proved. It is trite law that, the age of a victim may be proved by a parent, a guarding, a medical practitioner or by production of a birth certificate or by a victim himself/herself. - See for instance, 13

not promise to tell the truth instead, he gave unsworn evidence. It was, her argument, however that, the omission is curable under section 127 (6) of the Evidence Act. On the contentions stated in the 5th ground of appeal, it was the learned Senior State Attorney's submissions that, the same are unfounded. According to her submissions, in the first place, the appellant did not specify the contradictions, and/or inconsistences in the witnesses' evidence or the nature of the alleged hearsay evidence which was acted upon to convict him. She argued that, the witnesses testified on what they saw and did. It was her further submission that, PW3 was credible and his evidence was supported by PW5 and therefore, despite the stated irregularity his evidence was property acted upon to found the appellant's conviction. She stressed that, the case was proved beyond reasonable doubt against the appellant, Having considered the submissions made by the learned Senior State Attorney on the three grounds of appeal above, we hasten to express our view that, the said grounds are meritless. The two courts below made concurrent finding that the evidence of PW3 as supported by PW5 proved that the appellant committed the offence charged. Since the victim's evidence was corroborated, it was properly acted 12

respect we agree with her. The relevant part of the proceedings at page 19 of the record of appeal reads as follows: "PW5. This is the PF3 I filled. It has m y hand w riting and hospital stamp. I p ra y it b e a d m itted . Pros: We pray to tender the PF3 as our exhibit Accused: No objection Court: The PF3 is adm itted as... Exhibit 1. " [Emphasis added] Although there are two prayers by both the witness and the Prosecutor, it was the witness who first made the prayer that the exhibit be admitted in evidence. The fact that the witness did not use the words "Ip ray to tender" did not, in our view, negate his intention to that effect. We find further that, the second prayer by the Prosecuting Attorney did not invalidate the prayer made by the witness. We thus find that, the exhibit was properly admitted in evidence. We eventually dismiss the 4th ground of appeal as well. On the 3rd , 5th and 6th grounds of appeal, the learned Senior State Attorney agreed with the appellant that the evidence of PW3 was not received in accordance to the provisions of section 127 (2) of the Evidence Act. She submitted that, from the record, the witness did

the cases of Issaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 (unreported) and Elia John v. Republic (Criminal Appeal No. 306 of 2016) [2019] TZCA 303. As submitted by Ms. Sulle, in this case, evidence as regards the age of the victim was adduced by PW1, the victims guardian and also PW5, the medical practitioner who examined the victim. Their evidence on that aspect was not challenged by the appellant at the trial. Since , therefore the victim was of the age below eighteen (18) years, the sentence of life imprisonment meted out to the appellant was proper under section 154 (2) of the Penal Code. Section 154 (1) (a) and (2) provides as follows: "154 (1) Any person who (a) has carnal knowledge o f any person against the order o f nature com m its an offence and is liable to im prisonm ent fo r life and in any case to im prisonm ent fo r a term o f not less than th irty years. (2) Where the offence under subsection (1) is com m itted to a child under the age o f eighteen years the offender sh all be sentenced to life im prisonm ent"

On the basis of the above findings and the mandatory provisions of the law reproduced above, the 7th ground of appeal lacks merit and is thus hereby dismissed. For the foregoing reasons, we find that, this appeal has been brought without sufficient reasons. In the event, the same is hereby dismissed. DATED at MOSHI this 05th day of November, 2024. A. G. MWARIJA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 6th day of November, 2024 in the presence of the Appellant in person, Ms. Rose Sulle, learned Senior State Attorney and Mr. Isack Mangunu, learned State Attorney for the Respondent, is hereby certified as a true copy of the original.