CRIMINAL APPEAL NO 76 of 2023 ATHUMANI SAID MANDUTA NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL CASE NO 76 OF 2023 (Originating from Criminal Case No 44 of 2022 in the District Court of Lindi at Lindi) r ; ?' ATHUMANI SAID MANDUTA.... . ............... APPELLANT VERSUS THE REPUBLIC ................................ RESPONDENT JUDGMENT Date ofLast Order: 1-* November2023 . Date ofJudgement: 27'' November2023 LALTAIKA, J. ' The appellant herein ATHUMANI SAID MANDUTA was arraigned in "r'" the District Court of Lindi at Lindi charged with the offence of Grave Sexual Ab'use; contrary to section 158(1) (a) of the Penal Code Cap 16 RE 2022. When the charge was read over and explained to him, he pleaded not guilty. This necessitated the conducting of a full trial. Having been convinced that Page 1 of 9 the prosecution had proved their case beyond reasonable doubt, the appellant was convicted as charged. He was sentenced to 30-year jail term. Dissatisfied, the appellant has appealed to this court on 6 grounds. I choose not to reproduce the grounds here. When the appeal was called on for hearing on the 1st of November 2023, the Appellant appeared in person, unrepresented. The respondent Republic, on the other hand, appeared through Mr. Steven Kondoro, learned State Attorney. yr 3.'. Not being learned in law, the Appellant indicated that he had nothing to add to his petition of appeal but chose to reserve his right to a rejoinder in case such a need arose. This paved.the way for the learned State Attorney who, upon taking the podium, announced boldly that he was not supporting the appeal. His submission is summarized in the next paragraphs. £=• The learned State Attorney stated that he had grouped the grounds of .1 appeal into three categories. Starting with the first group, comprising the 1st and 5th graunds, Mr. Kondoro argued that they addressed the appellant's assertion that the conviction lacked proof beyond reasonable doubt. Disagreeing, Mr. Kondoro emphasized the prosecution's responsibility to Page 2 of 9 prove the case beyond reasonable doubt, referencing section 3(2) of the Evidence Act Cap 6 RE 2002. The learned State Attorney highlighted the testimony of PW1 (victim), PW2, and PW3, indicating that PW1, a 14-year-old girl, accused her biological father of sexually molesting her. Medical personnel (PW2)confirmed the absence of physical evidence but noted the loss of the victim's hymen. A neighbor (PW3) testified about the victim's disclosure and reporting the % 3^- matter to the village chairman. Mr. Kondoro prayed for the dismissal of these grounds. ? J Transitioning to the second group consisting of the 2nd, 4th, and 6th grounds, Mr. Kondoro clarified that they focused on the assertion that relying on the victim's evidence was erroneous. Mr. Kondoro argued that, according to section 127(6) of the Law of Evidence Act Cap 6 RE 2002, the evidence J of the victim in sexual offenses against children is justifiable and vivid. He defended the prosecution's choice to rely on the victim's testimony, considering it the best evidence, and prayed for the dismissal of these grounds. Page 3 of 9 Moving on to the third and last category comprising of the 3rd ground of appeal, Mr. Kondoro explained that the complaint was that the appellant was convicted in contravention of section 289 of the Criminal Procedure Act Cap 20 RE 2002. Mr. Kondoro dismissed this ground as baseless, statjngjhat it did not go through the committal process. He prayed for the dismissal of the entire appeal for luck of merit. /\ " In his rejoinder submission, the appellant added that on 13/9/2022, aV* after leaving his workplace as a security guard jor Alpha Supermarket in A.. Lindi, the he returned home around 6 AM. He sent his children to school and dS-'s. A then relaxed. His fiancee, Neema Augustino (Mama Sunday), came and prepared food before leaving: The appellant continued to rest until around 4 . CT PM when his son Saidi (7 years old at the time) arrived with three police officers. Saidi informedhim about the presence of guests, and the police took the appeWntrwith them in a private vehicle. *, XX Ta In the car, the appellant narrated, he noticed his daughter Fatuma (14 V A years old at the time). He whispered to her, asking what had happened at school, and she replied that she was ordered not to tell him anything. The appellant was instructed to hand over everything, including money (around Page 4 of 9 100,000/=). A female police officer requested money to examine his daughter. The appellant was shocked to hear the accusation of abusing his own daughter, emphasizing that he would never do such a thing, as he both educates and cares for his children. Subsequently, he was taken^td^the remand prison. a Aft.. The appellant mentioned his younger brother briefly visiting him in prison and asking for bail. However, he never sawJJs brother again until the end of the case when he brought him shoes.:|be;appellant provided details . VaAift. about his marital history, including a> divorce in 2006 and subsequent relationships that led to the birth ofihis"two children, XXD (the victim) and YYD (her elder brother). He^emphasized his efforts to take care of them despite challenges withiheir mother. AA Originally from SlsikwaSisi in Tunduru, the appellant discussed a short reconciliation with the children's mother, who later remarried. In 2015, after thebirthpf YYD, the mother wanted the appellant to join them in Lukuledi, bdine refused. In an unspecified year in Masasi, he discovered that his daughter was not attending school, leading him to take custody of both children. Page 5 of 9 The appellant expressed concern about his daughter's education and insisted on the court receiving his grounds of appeal and setting him free. I have dispassionately considered the rival submission and carefully examined the lower court records. It is pertinent to point^tThat grave sexual abuse, like other sexual offences, is not committed,in public. That is why the law in our jurisdiction considers the evidence'of the victim with some considerable weight, as best evidence. .My task was first to assess plausibility of the victim's narrative. This assessment benefited from the appellants willingness to provide the much-needed contextual backdrop to his family and how he was relatedTo the victim in an almost iron fist approach. The appellant’s>4ssertion that the prosecution failed to prove the case beyond a reasonable doubt is unfounded. The testimonies of the victim (PW1), the medical personnel (PW2), and the neighbor (PW3) provided a coherent^and compelling narrative of the events. PW1, a 14-year-old girl, clearly testified that her father, the appellant, sexually molested her. PW2 corroborated this by noting the loss of the victim's hymen. PW3 supported the prosecution's case by recounting the victim's immediate disclosure and Page 6 of 9 the subsequent report to the village chairman. The prosecution thus met the threshold of proof required in criminal cases. The appellant contended that the court erred in relying on the victim's testimony. However, as per section 127(6) of the Law of EvidencelActXap e XXX ' 6 RE 2002, the evidence of a child victim in sexual offense cases is valid and sufficient for conviction if it is credible. The trial court found the victim's testimony to be credible and reliable. As prefaced earlier, given the sensitive -3* & vX % nature of sexual offenses, especially involving minors, the victim's testimony .•4 is often the most direct and compelling evidence available. The trial court fe.. acted within the law by basing its decision on the victim's account. % ■ The appellant argued that his conviction violated section 289 of the #C Criminal Procedure Act, Cap 20 RE 2002. However, this argument is baseless. Xx The record indicates that the appellant was properly charged, and the case I did hot involve/a committal process that would invoke section 289. The procedural integrity of the trial was maintained, and there was no miscarriage of justice. In his rejoinder, the appellant provided an account of his daily activities and interactions with family members on the day of his arrest. While this Page 7 of 9 narrative highlights his personal circumstances, it does not negate the substantive evidence presented during the trial. His claims of innocence and the familial context do not sufficiently undermine the prosecution's case, which was built on credible witness testimonies and corroborative evidence. \jl3 In the upshot, the appeal is hereby dismissed for lack of merit. The conviction and sentence imposed by the District Court of Lindi at Lindi are upheld. This judgement is delivered under my hand and the seal of this court this 27th day of November 2023 in the presence of Mr. Melchiori Hurubano learned State Attorney for the respondent and the appellant who has appeared in person, unrepresented. Page 8 of 9 The right to appeal to the Court of Appeal of Tanzania is fully explained. Page 9 of 9