Court upholds life sentence for teacher

TANZANIA: THE Court of Appeal has upheld the conviction and life imprisonment sentence imposed on Primary School Headteacher, Charles Msele, for carnally knowing a boy aged 11 years against the order of nature in a dormitory.

Justices Augustine Mwarija, Issa Maige and Benhajj Masoud dismissed the appeal under which Msele, the appellant, lodged to fault the findings of District court of Babati, at Babati and that of the High Court at Arusha.

“We did not find anything entitling us to interfere with the concurrent findings of the two lower courts based on the grounds of grievances raised and argued. We find the appeal devoid of merit. We dismiss it in its entirety,” the justices declared.

During hearing of the appeal, the appellant had complained on irregularity of proceedings that led to his conviction and sentence; the prosecution case was not proved beyond reasonable doubt and trial court had no jurisdiction to sentence him for life imprisonment.

However, in their judgment delivered in Arusha recently, the justices said that the claims advanced in attempt to challenge the findings of the two lower courts were misconceived and deserved to be dismissed.

On the ground relating to fatal irregularities in the trial proceedings, the justices noted that the issue was neither raised in the trial court nor in the first appellate court., thus could not be brought at this stage.

As regard to the allegation of defective charge, they were fortified by their cord that the charge with which the appellant was convicted and sentenced did not cite the punishment section.

The justices pointed out that since citing of a punishment provision in a charge is not a requirement of sections 132 and 135 of the Penal Code, the failure to cite section 155(2) of the Penal Code was in this case not a violation of law and was, therefore, not fatal.

They said that even if it were, it would still have been curable under section 388 of the Criminal Procedure Act.

There was another complaint that the High Court failed to find that the prosecution did not prove the charge laid against him beyond reasonable doubt because of contradictions on the evidence given by prosecution witnesses.

The justices wondered as to whether there were indeed such contradictions and if so, whether they were material as to go to the root of the prosecution case.

They pointed out that the substance of the evidence of the witnesses, characterized by the evidence of the victim, who named the appellant as the culprit, rules out the allegation of presence of material discrepancies and delays in naming him.

“If at all there were any discrepancies, they were minor and on the details which could not affect the prosecution case,” the justices said.

For instance, they noted a fact that the incident occurred at the school, and that before the victim went to the dormitory, he was called by the appellant in his office as was reminding and warning him to avail himself at the dormitory as directed.

Again, they justices observed, it was a fact, which was not disputed that, the victim narrated the ordeal to his mother on very same day.

“We find and hold that, the complaint on contradictions is not well founded. In all, we equally find that the ground of grievance that the charge was not proved beyond reasonable doubt, is unfounded and is herein dismissed,” they ruled.

Another complaint related to the High Court’s failure to hold that the trial court lacked jurisdiction to sentence the appellant to life imprisonment after convicting him of unnatural offence.

The justices pointed out that it was not in dispute that the appellant was charged with and convicted of unnatural offence contrary to section 154(l)(a) of the Penal Code, whose punishment is, under section 154(2) of the said Code, life imprisonment.

They said, therefore, the offence with which the appellant was charged and convicted of is a scheduled offence, meaning that the trial court had jurisdiction to sentence the appellant as rightly did.

Before the District court of BabatI, at Babati, the appellant was charged of unnatural offence contrary to section 154(l)(a) of the Penal Code.

The appellant’s arraignment was a result of allegation that on September 28, 2018, he carnally known a boy, then aged 11 years, and a standard five pupil at the Rift Valley Medium Primary School, against the order of nature.

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