Abdi Ally vs Republic (Criminal Appeal No. 398 of 2013) [2014] TZCA 217 (25 September 2014)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: KILEO, J.A.. ORIYO J.A. And MMILLA 3. A.1 CRIMINAL APPEAL NO. 398 of 2013 ABDI ALLY ............................................................................ APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Mwaimu. dated the 21s t day of August, 2013 in Criminal Appeal No. 22 of 2013 JUDGMENT OF THE COURT 19th& 25th September 2014 KILEO. J. A.: The appellant was taken before the District Court of Babati where he was charged with and convicted of unnatural offence contrary to section 154 (1) (a) of the Penal Code, Cap 16 R. E. 2002. He was sentenced to suffer life imprisonment. It was alleged that on 24th August 2010 at around 18.00 hours he had carnal knowledge against the order of nature of Isaya s/o Dodo a child aged three years. His appeal to the High Court was unsuccessful hence this second appeal. Briefly, the background facts of the case were that on 24/08/2010, PW1 Patrice Dodo, left his home to attend a funeral returning home at

around 18.00hours. On arrival back home he heard a child's cries from the appellant's house. The appellant happened to be his paternal uncle. Upon going into the house to find out what was amiss he allegedly found his uncle sodomizing the victim who is his young brother. PW1 went back to the funeral in order to enlist assistance from neighbors in apprehending the appellant. The child was taken to hospital where he was examined by PW2. PW2 tendered in court as an exhibit PI the PF3 he filled in. He noted some bruises with slight bleeding on the anus of the victim. According to PW2 the victim was aged below 7 years. The appellant denied the charge against him alleging that it was a frame up as he had declined to lend some money to PW1. The appellant who appeared before us in person, unrepresented filed a memorandum of appeal consisting of the following three grounds:

1. That the first appellate judge erred in fact when he held that PW1 and PW2 proved the prosecution case beyond reasonable doubt

2. That the first appellate judge erred in law and in fact when he failed miserably to scrutinize the evidence ofPW l and hence he arrived on erroneous decision.

3. That the first appellate judge erred in law and in fact in ignoring the defence evidence. The appellant did not have much to say when we called upon him to make a submission on his appeal. This was understandably so, he being a layman. He asked us to adopt his grounds of appeal and the written submission he had filed prior to the hearing. The respondent Republic which was represented by Mr. Patrick Mwita, learned State Attorney supported the appeal. They had also supported it in the High Court. The learned State Attorney submitted that the non- appearance in court of the victim to testify or to be declared incompetent to testify was an incurable flaw on the case for the prosecution. Mr. Mwita also conceded that the defence case was not given due consideration and that too much burden was placed on the appellant to prove his innocence. The learned State Attorney was of the view that given the circumstances of the case, there was a need for other evidence to support that given by PW1 especially after he had said that he went to enlist the assistance of neighbors in apprehending the appellant.

Citing the decision of this Court in Alfeo Valentino v. Republic

• Criminal Appeal no. 92 of 2006, (unreported) Mr. Mwita submitted that given the circumstances of the case, this Court would be justified to interfere with the findings of the lower courts with regard to the finding of facts. Admittedly this case centres on credibility of witnesses and this is a second appeal. It is now well established that a second appellate court will rarely interfere with the concurrent findings of the two lower courts on the question of facts. However, it is common knowledge that where there is misdirection and non-direction on the evidence or the lower courts have misapprehended the substance, nature and quality of the evidence, an appellate court is entitled to look at the evidence and make its own findings of fact. (See Alfeo Valentio, supra) We are of the settled mind that the circumstances of this case are such that call for our interference on the findings of facts by the two lower courts. To begin with, PW1 told the court that when he found his younger brother being sexually abused by the appellant in his house he went out and proceeded to the place where there was a funeral to get assistance from the neighbours. The question that comes immediately to our minds is why the witness went out leaving his brother in the hands

of his molester instead of raising an alarm while intervening to rescue him there and then. Another question that we have asked ourselves is whether under normal circumstances the appellant, knowing that he had been discovered in his unlawful act would have remained at the scene to await his apprehension. Not only that. Surprisingly none of those who were at the funeral and went to apprehend the appellant were ever called to testify. We are mindful of section 143 of the Evidence Act which states that no particular number of witnesses shall in any case be required for the proof of any fact. We share Mr. Mwita's views however; that in the circumstances of this case it was pertinent on the prosecution to summon some other witness to support the evidence of PW1. The appellant complained in his third ground of appeal that his defence was ignored. The appellant claimed that the case was framed up against him after he had declined to give some money to PW1. He also testified to the effect that PW1 and another person beat him up and took his Tshs 75,000/-. He brought up this matter from the time of cross-examination of PW1. That he was beaten up is supported by the evidence of PW2 who testified that he admitted and treated him as he was beaten. On the other hand PW1 did not say anything about beating up the appellant at the scene of crime. The appellant's explanation

should have given cause to the courts below to treat the evidence of PW1 with caution. We also agree with the appellant and the learned State Attorney that too much burden was placed on the appellant to prove his innocence. At page 22 of the record the trial magistrate stated: ! Among all persons at Kijiweni as he said he was after selling his goods, he failed to call or even to show the intention o f calling one more witness to add weight to his evidence as to make it enough to shake the evidence of the prosecution'. It is a cardinal principle of criminal law in our jurisdiction that in cases such as the present one it is the prosecution that has a burden of proving its case beyond reasonable doubt. The burden never shifts to the accused. The prosecution must rely on the strength of its own evidence, and not to anchor its success upon the weakness of the defence case. An accused only needs to raise some reasonable doubt on the prosecution case and he need not prove his innocence. The burden of proof placed on the prosecution arises from the presumption of innocence unless proved guilty that the Constitution has provided in favour of an accused. Reading from the magistrate's statement above it is clear that the magistrate placed a burden upon the appellant to prove his innocence. This was contrary to established principles of law.

Before we are done we wish to make some observations concerning the age of the victim. PW2, the medical personnel who examined the victim said that the victim was below seven years of age. PW3, the investigator said the victim was three years old. It was not in evidence how he came to that conclusion. PW1 did not give the age of his brother. None of the victim's parents who were best placed to know the age of their child testified in court. The victim never testified in court though PW2 claimed that he interviewed him in hospital and he told him that he had been sodomized by his uncle Abdi Dodo. The trial magistrate stated that the court did not bother to question the victim whom it saw and was satisfied that was too tendered (sic) to speak . That the trial magistrate saw the victim is not supported by the record. Ordinarily, in terms of section 127 (1) of the Evidence Act, the trial magistrate ought to have examined the child victim and made a finding that he was not competent to testify. At least if he saw the child victim he should have made an entry in the record to that effect. The section states: '127 (1) Every person shall be competent to testify unless the court considers that he is incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age, extreme old age,

disease (whether of body or mind) or any other similar cause/ The first appellate judge ought to have found that there was non- compliance with the law in the way the trial court dealt with the question of the victim of crime. Having deliberated on the appeal as above we have come to the settled view that the appeal was filed with sufficient cause for complaint. We in the event allow it. We quash conviction entered against the appellant and set aside the life imprisonment imposed on him. We further order his immediate release from custody unless he is held therein for some other lawful cause. DATED at ARUSHA this 24th day of September, 2014. E. A. KILEO JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL