Felix Majuga vs Republic (Civil Appeal 509 of 2020) [2022] TZCA 695 (9 November 2022)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: WAMBALI, J.A.. LEVIRA. 3.A. And MAIGE, J J U CRIMINAL APPEAL NO. 509 OF 2020 FEUX MAJUGA.......................................’ .......................... APPELLANT VERSUS THE REPUBLIC................................................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) (Rente, J.^ dated the 16th day of July, 2020 in Criminal Appeal No. 47 of 2018 JUDGMENT OF THE COURT 4h & 9h November, 2022 LEVIRA. J.A.: The appellant, Felix Majuga was arraigned before the Court of Resident Magistrate of Njombe at Njombe facing unnatural offence charge contrary to section 154 (1) (a) and (2) of the Penal Code [Cap 16 R.E. i 2002 now R.E. 2022]. It was alleged in the particulars of offence that, on 27th November, 2017 (the material day) at Kihesa street within the District and Region of Njombe, the appellant unlawfully had a carnal knowledge against the order of nature of KK (the name withheld to protect his dignity), a boy of 7 years old whom we shall refer as the victim or PW2. The trial ended in disfavor of the appellant as he was convicted and

sentenced to life imprisonment. Dissatisfied, the appellant unsuccessfully appealed to the High Court vide Criminal Appeal No. 47 of 2018. Stilj protesting his innocence, the appellant has preferred the instant appeal. For better understanding of what transpired, we find it apposite tc| briefly give a factual background setting of the case. The prosecution| evidence was led by five witnesses and one exhibit which was admitted) during trial. It was the prosecution case that on the material day at about 19.00 hours, PW2 went to buy match box; while on the way back home, he met the appellant whom he knew before, commonly known as "Kamkono. "The appellant took PW2 to the forest, asked him to undress his trousers, which he did and the appellant also undressed his. Thereafter, the appellant inserted his penis in PW2's anus and had canal knowledge of him. While in the course, Bernadi Kimbe (PW4) saw them, they were apprehended and taken to the ten-cell leader's office. PW2 identified the appellant at the dock during trial. The evidence of PW2 was confirmed by PW4 to the extent that, on the material day, he saw the appellant who had inserted his penis into PW2's anus and was having sexual intercourse with him against the order of nature through the aid of bright light from mobile phone torch. PW4 called one Mr. Rudo, together with whom they arrested the appellant and took him to the office of the

ten-cell leader, one Saimon Mtweve (PW5). The latter reported the incident to the police and thereafter the appellant was sent to the police. Edina Kyaka (PW1), the mother of PW2 also arrived at the office of the ten-cell leader having heard about what had happened to her son. She was among the people who went to the police together with the appellant and the victim. At the Police, she was issued with a PF3 and she sent PW2 to Njombe Regional Hospital commonly known as Kibena Hospital where he was medically examined by Dr. Alen Oden Kitalu (PW3). In his examination, PW3 discovered that PW2's anus and anal springs were loose, suggesting that a blunt object including penis was inserted therein. PW3 filled the PF3 which was admitted as exhibit PEI during trial. In his defence, the appellant entered general denial of the charge and repeated what was testified by the prosecution witnesses. Having heard the evidence from the parties, the trial court was satisfied that the prosecution proved its case to the required standard, and thus convicted and sentenced the appellant as intimated above. On 8th December, 2020, the appellant filed in Court a Memorandum of Appeal comprising of four grounds which conveniently are paraphrased as follows: 3

1. That PW2 did not promise to teii the truth before his evidence was recorder as required by the law, so it couid not be reiied upon by the High Court to dismiss his appeaL
2. That the identification of the appellant at the scene o f crime was made under unfavorable condition.
3. That the voire dire test was conducted before recording the evidence ofPW2 contrary to the law.
4. That the prosecution case was notproved beyond reasonable doubt At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas the respondent Republic had the services of Messrs. Tito Ambangile Mwakalinga and Matiku Nyangero, both learned State Attorneys. The appellant adopted his grounds of appeal as part of his submission. He prayed for the Court to consider them, allow the appeal and set him free. In reply, Mr. Mwakaliga readily conceded to the first and third grounds of appeal stating that according to the record of appeal, PW2 was a child of tender age at the time of recording his evidence. Therefore, in terms of section 127 (2) of the Evidence Act [Cap. 6 R.E. 2019] (the Evidence Act), his evidence was supposed to be taken subject to his promise to tell the truth and not to tell lies, but that was not the case. Instead, he said, the trial magistrate made a finding that the child understood the duty of speaking the truth without ensuring that, he

promised to tell the truth as required by the law. Therefore, he urged us to expunge the evidence of PW2 from the record. In support of his contention, he cited the case of Emmanuel Masanja v. Republic, Criminal Appeal No. 394 of 2020 (unreported). Having heard the concurrent submissions by both sides, the issue as to whether the evidence of PW2 was recorded in accordance with the law, should not detain us. It is noteworthy that the procedure of recording the evidence of a child of tender age, like PW2 herein, is stipulated under section 127 (2) of the Evidence Act, that a child must promise to tell the truth and not to tell lies. We have gone through the record of appeal but it is unfortunate that we could not find anywhere that the trial magistrate conducted voire dire test as alleged by the appellant in the third ground of appeal. The appellant's complaint in that aspect is therefore, baseless. We have as well observed that the first appellate judge while resolving the appellant's complaint in this ground, regarding the procedure of recording PW2's evidence, he was satisfied that PW2 undertook to tell the truth having said as follows: 7 am Christian by religion, I am here before the court in order to state about how the accused had sexuai intercourse with me. He sodomized me." The following was his conclusion:

• 7 think that what PW2 told the court immediately before he went on giving evidence was nothing but an undertaking that he was going to tell the truth . He said he was going to tell the court that the appellant had sodomized him . For my part, I cannot visualize such a young -child as PW2 promising in any other appropriate words than what he said which should be taken to mean that he had promised that he was going to tell the truth." With respect, we are unable to go along with the interpretation of the law done by the learned judge. We think, the language used in section 127 (2) of the Evidence Act is plain that a child of tender age is required to promise to tell the truth and not lies. Therefore, in our considered view, the above quoted PW2's words hinted the substance of his evidence than being a firm undertaking to tell the truth. We thus find merit in the first and third grounds of appeal to the extent explained above, and hereby disregard PW2's evidence as it was recorded in contravention of section 127 (2) of the Evidence Act. Having excluded the evidence of PW2, the next issue is whether the remaining evidence is sufficient to sustain the appellant's conviction. We shall consider it in relation to other grounds of appeal. 6

In the second ground of appeal, the appellant's complaint is that he was not properly identified at the scene of crime and thus, it was wrong for the first appellate judge to uphold his conviction. This ground of appeal was opposed by Mr. Nyangero who submitted that the same is baseless because, the appellant was identified by PW4 at the scene of crime through the aid of torch light from his phone. Besides, he argued, the appellant cannot be heard to complain that he was not properly identified while he was apprehended at the scene of crime while committing the offence. He submitted further that, according to the decision of the Court in Daffa Mbwana Kedi v. Republic, Criminal Appeal No. 65 of 2017 (unreported), the issue of identification does not arise if the suspect is caught red-handed. This ground of appeal calls for our determination as whether the appellant was properly identified at the scene of crime. However, we agree with the position of law stated by Mr. Nyangero. In his evidence, PW4 testified that he apprehended the appellant while committing the offence and took him to the office of ten-cell leader and later to the police. We shall let part of PW4's evidence speaks for itself: 7 know Felix Majuga before a day of commission o f the offence by name. I thought that he had faiien down because he is disabled, he cannot stand up. I took my

mobile phone. I lightened its torch. I saw Felix Majuga was sodomizing the child. I saw that he had sexual intercourse with the victim against the order of nature. He inserted his penis into the anus o f the victim child.... Then I called Mr. Rudo. We took the accused to mama Biti a ten-cell leader ;" We have as well considered the cross examination that followed after PW4's testimony by the appellant. We have observed that the appellant did not challenge PW4's firm testimony that he saw him committing the offence. On the contrary, he only challenged with whom PW4 was, while seeing him sodomizing the victim. We entertain no doubt that the credibility of PW4's evidence remained intact. Therefore, in the circumstances of this case where the appellant was arrested while committing the crime, the issue of identification does not arise as the Court held in a number of decisions. In Daffa Mbwana Kedi (supra) the Court held that: "The Court has in a number of times held that where an accused is arrested at the scene o f crime his assertion that he was not sufficiently identified should be rejected. [See Bahati Robert vs. Republic (supra) and Joseph Safari Massay vs. Republic, CriminalAppeal No. 125 o f 2012 (unreported).]" 8

In the light of the above decision and considering the evidence on record, we find the appellant's complaint in the second ground of appeal with no basis and hereby reject it. The appellant's complaint in the fourth ground of appeal is that, the case against him was not proved beyond reasonable doubt. However, it was Mr. Nyangero's submission that the prosecution proved its case to the required standard. He referred us to the record of appeal where PW1 testified that the victim was born on 30thMay, 2011 and thus it was proved that, on the material day, he was a child of tender age. As regards whether he was carnally known against the order of nature, Mr. Nyangero indicated that the evidence of the Medical Doctor (PW3) who examined the victim after the incident and exhibit PEI proved that his anus was penetrated. He added that the evidence of PW4 was sufficient proof that the appellant was the one who carnally known the victim against the order of nature. He referred the case of Daffa Mbwana Kedi (supra). Finally, Mr. Nyangero urged us to dismiss the appeal for lacking in merits. In his brief rejoinder, the appellant submitted that the case against him was not proved beyond reasonable doubt because he was not taken

to the hospital to be examined to prove that he had sexually abused the victim. The answer to the issues as to whether the case against the appellant was proved beyond reasonable doubt, is straight forward. It is settled position that, in sexual offences, when an accused is caught in flagrante delicto is a sufficient proof even in absence of victim's evidence, as in the current case, where we have already excluded PW2's evidence. In Khamis Samwel v. Republic, Criminal Appeal No. 320 of 2010 (unreported) when the Court was dealing with an akin situation, it had the following to say: "... So, as Is always the case in cases of improper admission of evidence, the question in the present case is, whether, after, expunging the evidence ofPW3, and the High Court on first appeal having also expunged Exh, PI (the PF3) there is any other evidence to support the conviction of the appellant? We think there is, PW1 came to the scene when the appellant was in the thick of the act, and was still tying on top o f the victim . This is what in SALUSOSOMA'S case (supra) we found was an in flagrante delicto action (caught in action). The appellant was found naked, and was found dressing by PW2 which further corroborates PW l's story.... We are satisfied that the appellant's defence

and his attempts to discredit those witnesses did not introduce any reasonable doubts in the prosecution case ." Circumstances of the above case are almost similar as of the current case where PW4 found the appellant in action while committing the offence. As indicated above, his credibility was not shaken. Therefore, we are satisfied that the evidence on record is sufficient to prove that the victim, a child of tender age, was carnally known against the order of nature as per the evidence of PW3 and exhibit PEI. In his evidence, PW3 established penetration as he testified that the anal springs and the anus of the victim were loose, a situation which can be caused by a blunt object including penis. As to who did so, PW4 testified on how he caught the appellant while in action, taken him to the ten-cell leader's office, later, to the police station and finally, charged as introduced above. The evidence on the arrest of the appellant at the scene of crime is also supported by PW5, ten-cell leader to whom he was sent by PW4 immediately before being taken to the police station. It was also the evidence of PW1, the mother of the victim, that she was informed and went to PW5 where she found the appellant and the victim. The appellant's complaint that he was not taken to the hospital for medical examination does not hold water in the circumstances of this case and we find this ground of appeal without

substance. We are settled that the prosecution proved its case against the appellant beyond reasonable doubt and thus we have no justifiable reason to interfere the concurrent findings of the first appellate and the trial court. In the upshot, we dismiss the appeal in its entirety for lacking in merits. DATED at IRINGA this 8t h day of November, 2022. This Judgment delivered this 9t h day of November, 2022 in the presence of the Appellant in person and Ms. Veneranda Masai, State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. F. L. K. WAMBALI JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL