Mohamedi Omari vs Republic (Criminal Appeal No 42 of 2001) [2000] TZHC 399 (22 September 2000)

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• P.L1 testified afte: his du -'Llity +0 undeitand the ntur .f oath and import: of telling the truth Ear. been Only assssad ir the trial magistrate On his, testimony on oath, he had told the cotrt that he bd slept on the same bed w the 2nd accused, while PJ2 had slept on th matress on the floor with the first accused. In the course of the night that the appellant (2nd accused) taken off his (Pi) clothes an ,3 sadomised him. That he had felt pain, criec. even shouted but solicited no help P,'W.2 SelemeaA Mbwana gave unsworn evici because as recorded.2 he knew nothing about the meaniflg of oath, he however confirmed the sleeping pattern for the night in question and in his case he had claimed that the first accused liaji haid sodomised huin who had first received the complaint of the to boys told their father P1 W,6 who had then checked them and found them to have bruises and some bleedin So that they had gone ±o the i-ole where PF3s were issued for them to proceed hospital to hospital, £ccording to PL3 9 and F.,2 had to be carried toas tbe could not walk p•W4 1isey Magiri the doctor who examined the complainants confirmed that they both had been sodomized, .P,41 being more serious than P.2 as recorded on the two PP.3 marked Erh. P.t. The appellant in his defence at the trial teld the court that on the morning of the 811211 99 he had met P 1 .3 who told him she would be going to Kivindo and nded.ed him to help with some errands after he would have finished helping his friend Haji to shift 1 When they had finished shifting that someone from the neighbourhood had brought PJ 1 and P.W0 2 to be looked after overni by Haji and himself. The appellant DW04 complained that Haji had told the complainants that one would sleep on the bed and the other on the floor and ttT:b while he slept, Eaji had told the boys that he was going to a bereavement at about 1 1,00pm at night. The appellant confirms tha4 Haji did not come back after he had gone to the bereavement that he had spent the night with t}.e two boys and that he had slept on the bed with 3elenani while bdi:.l1a slept on
• floor, s already indicated. the appellant' nain compladnt was lack of evideno identify him, because the nature of light was not disclosed. The Republic's case which was advocated by Mr. Kitainda learned $tat attorney submitted that the prosecution evidence had established, the offence charged as proven by P,144 the doctor and that the complainant having 5J.cpt the same room with the appellant, availed the opportunity for the ccmmiss. He referred tr the evidence on the P,F 4 3 and the fact that the coi;.siaan;' had experieaced difficulty in walkingG The learned. State torey thref supported. the findings by the lower court0 e /3

In the C of ituying thc accord. of the lower I experienced same difficulty in Mdeistaxiding the pbs.e/gTaTuiflar used. by the trial magistr. until I realised that he had literally translated :hat the witnesses has stat before hin in Swahili ,paying no attention to the gramma - fl £ttent ion is dracm to the trial magistrate to make an effort to polish his knowledge of th 1a:. of court. Haviag said this, I now turn to the appellants complaints, ccording to PJ459 it was already niat time when Haji (DW1) and his friend. Mohamed (appellant) came o That after imparting P,W,6' s message Haji took the children 0 There is no mention of any liting, and indeed even FW2t mention of it is not descriptive of its nature0 On the next day, that is the morning of the 9/12/999 P.3 and PJd6 told the court that they had returned to their home around 6 am and. :ourid their children outside on the veranda, It was after P,176 had been tcd of the reason the children were found outside, that he stated he went to wake the appeJia and hia friend0 DJ04 in his evidence tends to support the fact that be saw his brother and was asked oioohi aint well after 6a,m0 In fact he states that he left Yahaya' a mother at about 6 045aa, as he bad. to prepare to go to wori: t what is more, P,W03 told DU4 (appellat) in cross - examination that he had gone to the Police Station with them. In otlo' word.s, the appellant was in the company of PJ3 P,11,6 9 P,1 and PJ02 to the Police station, 1nother factor worth nothing is that the appellant as well as being flaji' a friend, is described. by R43 as being her grandmother' s child To my understanding their was an interrelationship from which the appellant cannot la said to have been a total stranger for purposes of his identification. j.s it was I am satisfied that there was ample time in which the appellant was obsecc1 during daylight of the morning of the 9/12/99 a most favourable circumstance. & even though the type of light was not mentioned by P.2 the circmstnco described above facilitated the appellant' a identification without L, ohnc' o mistake0 £ccordingly, in my vicw 2 this ggouni fails

• In the second ground the appellant seems to ciaat ion w iiai $.Idd.a wa aàaitted when he could have committed the oifence given the :7at of r. Ha. ida the appellant' s friend s admitted being handed over the child:L'e: ni&a1 and alleged that after he had settled them in the room to sleep witn appellant, he left to o to his sisters bereavement and spent the night then D42 Yahaya Lkida and DW.3 Halinia Kilua supported him 0 This evid.erioe te rebut that of P1 9 Pc02,I143 and P.W06 as to the preene of Ha;.± appellant who were supposedly woken up for questicning0 Th then &iL aPP' - himself drTe the mail home when he stated

e }j± toll J tomisfci'tunele'es.eeping thor I was tired, J0b. C 22/9/2000 ZXI) 1staccd You did not come bacL. iihen went to raisfovtune J,O. 0Hi. — DM 22/9/2000 It was 11,00 night I i-slept with c-1nani child. The first accused left some time 11.00 niht to misfortune, Tr (if .'., . 2 2/9/2000 ZM Courts I slept wii 3elaxi on the iod, ;bdull&a slept down. The tenant brought at 1100 night, when acueed going that oldman went to his bouo 1 .1. - .4.. .. - L - -*ou,eoo.o.*0000c siep wi ie -:o 1 u.'_ (' v •" ('ti aM 22/9/2000 ' (The Ui\DLflhING I MINE FOR IPHiS) om the foregoing quotation of the appellants evidence in the court of hi own defence on oath, I fail to see what other reliance the court could. have 1occ for than the appellants own affiiation of what happened, In the oircumstaneo I ag1ee with the learned state £ttoney that there was sufficient evidence to convict the appellant of the charges that were laid at his door stop. The Second ground also fails with the result that the appeal fails and is d.ismi. as having no merit, The lower court in response to the prosecutors plea for deterence sentenced the appellant to 30 years imprisonment which the minimum alterativ -under section 16 of the ot N0,4 of 1998 In the ciri1mstancee of th. case = C. e.d \to be a correct one Tho order is accordin4y a.'irPea. t in the presence of the appellant end the Stte tterney t ! . 28th day of Decembc-r, 2001 (r0ii.,cs. LONG-ST i) JUDGE