Mohamed Hassani vs Republic (Criminal Appeal No. 179 of 2016) [2016] TZHC 2759 (30 November 2016)

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 179 OF 2016

• ----- --- IOriginatingfromCriminalCase No; 62of2012of Temeke District Court at-Temeke] MOHAMED HASSANI ............................ u ••.••••• APPELLANT VERSUS THE REPUBLIC .................. ■■■■ •·• ■■■■■ II ■■■ •••••• ■ ••••• RES PON DENT Date of last order
• Date of Ruling Kitusi, J. . . . . 14/11/2016 30/11/2016 JUDGMENT Mohamed Hassan appeals against the conviction and sentence for unnatural offence Contrary to Section 154 (1) of the Penal Code by Temeke District Court in Dar es Salaam. Before the trial District Court it was alleged that on 20 th day of December, 20:00 hours at Nzasa 'A' area in the Municipality and District of Temeke within Dar es Salaam Region, Mohamed Hassan (hereafter the appellant), had carnal knowledge of one Khatibu Rashid a boy aged 10 years against the order of nature. 1

.,.. The evidence at the trial, mainly from the alleged victim Khatibe Rashid himself went to the following effect; Rashid Makelele (PW 2) and Salma Nuhu (PWS) are husband and wife, and parents of Hatibu Rashid (PWl). They live at Mbagala area and the appellant is their next door neighbor. On 20/12/2011 at 20:00 hours, the appellant cal-led PWl · who was pl,aying outside his residence, with the view of using him to perform some errands. It however turned out that there were no errands. for PWS to perform for, the appellant led the boy to his room where he lubricated his penis first before inserti.ng it into PWl's anus. He then forced PWl to spend the whole night with him, during which the appellant had five (5) anal sex with PWl. Meanwhile PW2 and PWS were alarmed by their son's disappearance, so they mounted a search for him. It was on 21/12/2011 when PWl was seen, or he showed up to the parents. PWl was interrogated by PW2 as to where he had been the previous night, to which PWl responded that he had spent the night, to which P\lVl respondent that he had spent the night with the appellant in the latter's room and disclosed the fact that he was sodomized. 2

PW2 took his son to Nzasa Police Station and thereafter to hospital where Dr. Ponsian Rwabutaza (PW3) attended the boy. PW3 testified that he examined PWl on 22/12/2011 and detected that the boy's anus had been widened, had bruises and he was in serious pain. PW3 concluded that a blunt object had penetrated into the boy's anus. He accordingly completed the PF3 which he tendered in court as Exhibit 'A'. The findings of the medical examination according to Exh. P3 is not only that sodomy was committed on PW 1 but that he was used to it. The appellant was arrested and charged. In defence the appellant gave a narrative of how he was arrested by the police· accompanied by PW2, and that this happened when he, appellant, was in his room. He totally denied even ever talking to PWl let alone luring him into his bed. In finding guilt in the appellant, the learned Resident Magistrate of Temeke District Court made a finding that PWl had been sodomized and he believed him (PWl) that the appellant was the culprit. The appeal raises four grounds which may be summarized as under: 3

1. That the PF3 was wrongly admitted without hearin9 whether the appellant had any objection or not.
2. That the learned trial Resident Magistrate erred in proceeding with the case and convicting him without reading.

• --- over to him the- rnernorandum of facts not in dispute. - ----

3. That the learned trial Resident Magistrate erred in . proceeding with the case without informing him of his rights upon finding that a prima facie case had been established against him.
4. The trial court erred in convicting him in absentia without considering that his absence could be explained and that he had a probable defence on merits. Mr. Frank Tawale, learned State Attorney argued the appeal on behalf of the respondent Republic, as the appellant stood in person. The appellant was brief - too brief even for a layman. He just asked the court to bear in mind his grounds of appeal. It was during his rejoinder that he added tv,10 nevv points that are relc1ted. He complained that the investigator of the case did not testify, and also complained that the prosecution did not call to the witness stand, the ten cell leader of the area. 4

On his part, Mr. Tawale supported the first ground of appeal · that the PF3 was wrongly admitted and prayed it to be expunged. · He nevertheless invited the court, under Section 127 (7) of the . Law of Evidence Act, to base its finding on the evidence of the victim which in law does not require any corroboration if it is . truthful. Then the learned State Attorney expressed doubt if PWl had stated the truth when he testified that he was sodomized five times during the night but was able to join his friends for games in the morning,. Regarding the second ground of appeal which raised the issue of irregularity in the Preliminary Hearing, Mr. Tawale submitted that the purpose of the Preliminary Hearing is just to expedite trial. He submitted that the omission did not prejudice the appellant. He also submitted in relation to the third ground that Section 231 (1) of the Criminal Procedure Act was observed and no miscarriage of justice was caused by any omission. As for the complaint in ground No. 4 that he was wrongly convicted in absentia, Mr. Tawale submitted that it was the appellant who abused bail conditions for no reason known to the court. He stated that the Court was entitled under Section 226 (1) of the Criminal Procedure Act to proceed. 5

In determining this appeal I will bear in mind that the duty of the first appellate court is akin to a re-hearing of the case. This old settled position in D. R. Pandya Versus Republic [1957] E.A. 336 has been restated in many decisions including that the - Court of Appeal, recently, in Crospery Gavriel and Another Versus The Republic Criminal Appeal No. 233 & 233 of 2014, CA at Bukoba, (unreported). There are two central issue in this _ case namely whether PWl was sodomized, and if so whether it is the appe!-lant who sodomized him. The only v1itness who enjoys a vantage position to provide answers to both questions is PWl, the victim. For, it is now settled law that in sexual offences the best evidence comes from the victim. See for instance the decision in the case of Anselmo Kapta Vs. The Republic, Criminal Appeal No. 306 of 2015, CA, at Mbeya (unreported). This is also the substance of Section 127 {7) of The Law of Evidence Act, cited to me by Mr. Tawale, learned State Attorney. I will keep in mind the principle in that provision, that conviction on a sexual offence may proceed on uncorroborated evidence of a victim of tender years if her/his testimony is believed by the Court. In the present case the learned trial Magistrate believed PWl to the extent that he equated his testimony with that of an 6

adult, quoting the case of Elias Joakim V. R. [1992] T.L.R. 220. It was his finding_ that the PF3 corroborated the evidence of PW1. Mr. Tawa!.e has submitted that the PF3 was wrongly admitted in exhibit b€cause the appellant was not heard on ----~·---· .. ----·-· - ··-- --·---··-- --- ----·· ·-----------·------·- -•-- ----- - -- -- -- whether or not he obj,ected to it being_ admitted. This is also the first ground of appeal', although the appellant did not elaborate on it. I agree with both the learned State Attorney and the appellant that the PF3 was wrongly admitted. The proper procedure to be followed, if I may quote from the Court of Appeal in Hussein Ramadhani Vs. The Republic Criminal Appeal No. 195 of 2015, sitting at Mbeya (unreported):_ "The law confers a right on an accused person to comment on the admission of any exhibit before its reception in evidence. " On the basis of the glaring omission by the learned trial Magistrate to observe that procedural requirement I accept Mr. Tawale's invitation to expunge the PF3. With the PF3 expunged the remaining evidence is that of PWl. However there is the evidence of PW2 and PWS, uncontroverted, that PWl did not spend his night at home on 20/12/2011. It is PWl who says he was in the appellants room all 7

night and he was ravished. I have no reason . to fault the -t"rial .. Magistrate's finding that PW1 is a truthful witness-. Mr. Tawale expressed an uncertainty as to whether PWl would have been able to take part in games if he had indeed been sodomized throughout the previous night. I do. not share the learned Attorney's doubts. First of all, that doubt would only b possible if it proceeded from an assumption that this was PWl 's first experience. Secondly there is a host of decisions to the effect that penetration however slight is sufficient to prove sexual offence. [ See [Alfeo Valentino Vs. Republic, Criminal Appeal No. 92 of 2006, CA (unreported), quoted in Diocles William Vs. The Republic, Criminal Appeal No. 225 of 2014 (unreported)]. As earlier indicated, apart from detailing the manner of his arrest, the appellant did no better than offer a flat denial. It is my finding as did the trial Magistrate, that he raised no reasonable doubt in the prosecution case. Consequently I agree with the trial court and take PW2's version of what happened to be true. The appellant raised two other procedural questions vvhich I now turn to. The first is the alleged irregularity in conducting the preliminary hearing. The record does not bear witness to the complaint raised. Even if it did, I agree with the learned State Attorney that the appellant was not prejudiced. The second is the 8

conviction that was entered in his absence. It shoul-d be clear that the appetlant had made his defence and closed his case. This means that his present claim that he had some probable defence on the merit to m-ake is irrelevant to the case at hand. The appellant abused the bail conditions after completing- hTs-defence~ and he cannot complain now that he was not heard. For the reasons given, I find no merits in this appeal. I dismiss it in its entirety. 9