Mikidadi Kassim v. Republic Cr app no 30 of 2005 (unnatural offence)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  MUNUO, J.A. KAJI, J.A., And KALEGEYA, J.A.)

CRIMINAL APPEAL NO. 30 OF 2005

MIKIDADI KASSIM……………………………………..APPELLANT

VERSUS

THE REPUBLIC………………………………………..RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Dar es Salaam)

(Mlay, J.)

dated the 17^th day of May, 2004

in

HC. Criminal Appeal No. 98 of 2003

JUDGMENT OF THE COURT

10 & 19 March, 2008

MUNUO, J.A.:

        In Kibaha District Court Criminal Case No. 143 of 2001, the appellant was convicted of unnatural offence c/s 154 (1) (2) of the Penal Code as amended by the Sexual Offences Act No. 4 of 1998 in that he unnaturally assaulted a ten year boy, one Masoud Yusuf, against the order of nature on the 2.8.2001 at midday at Mailimoja, Kibaha.  He was convicted and sentenced to 30 years imprisonment.  Aggrieved, the appellant preferred Criminal Appeal No. 98 of 2003 in the High Court of Tanzania at Dar es Salaam.  He lost the appeal.  Thereafter, he filed this second appeal to challenge the conviction and sentence.

        On the material day, P.W.1, Rodes Yusuf, the mother of the victim, was in her room while the victim and other small boys were playing outside the room.  P.W.1 was shocked to hear the victim, her small son, telling his playmates that the appellant had sodomized him in consideration for sh. 5,000/= for hiring a bicycle and for buying groundnuts.  Apparently it was the fifth unnatural assault on the small boy.  It then clicked into P.W.1’s head why her son was frequently visiting the toilet.  P.W.1 relayed information to her husband, P.W.2 Yusuf Selemani.  The latter reported the matter to the police.  The appellant was then arrested and charged with the present offence.

        The PF3 of the victim was tendered at the trial as Exhibit P1 which showed that spermatozoa were found in the anus of the small boy.  The appellant categorically denied the offence claiming that the parents of the victim no longer desired to have him as their tenant so they concocted the case to compel him to vacate their house.

        The appellant filed four grounds of appeal reiterating his innocence.  He faulted the trial court for admitting the evidence of the small boy, a child of tender years whose evidence would be unreliable.  Before us, the appellant contended that the landlady fabricated the case so that she would easily evict him from her premises.  He also faulted the trial court for failing to produce the sh. 5,000/= he gave to the victim as an exhibit which omission created doubt in the prosecution case.

        Ms Makala, learned State Attorney, supported the conviction and sentence imposed on the appellant.  The offence, she pointed out, was committed at midday on the material day, the fifth occasion the appellant unnaturally assaulted the small boy.  The appellant was a tenant at the house of P.W.2 so his identity was familiar and without a speck of doubt, she contended.  Furthermore, the learned State Attorney observed that, the trial court complied with the provisions of Section 127(2) of the Evidence Act, Cap. 6 R.E. 2002.  The small boy, she observed, did not know the meaning of an oath but he understood the duty to tell the truth so he was possessed of sufficient intelligence to testify which was why his testimony was recorded and he was cross-examined by the appellant.  There being no merit in the appeal, the learned State Attorney urged us to dismiss the appeal in its entirety.

        The learned judge, Mlay J., held that the evidence of the victim was properly recorded, and continued:

From the above extract of the judgment of the trial magistrate, it is clear that the appellant was convicted on the evidence of the victim who gave evidence as P.W.3.  P.W.3 was then a child of 12 years and therefore a child of tender years in terms of Section 127(5) of the Evidence Act, 1967.

We are satisfied that the evidence of the victim, a small boy then aged 10 years, was correctly recorded for although he did not know the meaning of an oath he understood the meaning of telling the truth and the duty to testify truthfully.  He deposed that the appellant sodomized him on the material day, the fifth time.  The appellant apparently lured the victim with sh. 5,000/= for hiring a bicycle and buying groundnuts.

        In view of the glaring evidence on record, like the learned judge, we find no merit in this appeal.  We accordingly dismiss the appeal.

        DATED at DAR ES SALAAM this 14^th day of March, 2008.

E. N. MUNUO

JUSTICE OF APPEAL

S. N. KAJI

JUSTICE OF APPEAL

L. B. KALEGEYA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(S. M. RUMANYIKA)

DEPUTY REGISTRAR
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