ALLY SAID JUDGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 7769 OF 2024 (Appeal from the Judgement of the District Court of Sengerema, in Criminal case No. 89 of 2023) ALLY SAID ............................................................................... APPELLANT VERSUS REPUBLIC ……………………………………………………………..RESPONDENT JUDGEMENT 5th & 28th June 2024 CHUMA, J. The appellant stood charged, convicted, and sentenced to 20 20- year jail term by the District Court of Sengerema at Sengerema for Grave sexual abuse c/s 138(1) and (2) (b) of Penal Code Cap 16.RE:2022. The appellant alleged that on 18/5/2023 in the Migombani area within the District of Sengerema, for sexual gratification did sexually abuse by forcibly using his penis to put in the victim’s private parts, a girl aged 4 years. Aggrieved with both conviction and sentence, the appellant is now before this court armed with four points of grievances as follows; 1. No offence was committed as per section 138c (1) of penal code Cap 16 RE 2022 as no any genital organ, part of the human body, instrument, orifice, or part of the body of another person. The 1 evidence of PW1 does not indicate if among of the above ingredients committed. 2. That the presiding magistrate relied and acted on his exaggerated point of view to bless his decision by adding the clause...upheld his penis...which was not testified by PW1 3. That, the prosecution side did not bother their mind to bring the alleged fiction victim before the court for her to be examined and assess her demeanor. This would have been established not only by her age but also if was not able to speak. 4. That the prosecution failed to prove the offence beyond a reasonable doubt. This appeal was argued by way of written submission in which the appellant had no legal representation while Ms.Brenda Mayala State Attorney appeared for the Republic. In his submission, the appellant on the first ground of appeal argued that the evidence of PW1 does not indicate the alleged offence was committed as ingredients of grave sexual abuse was not established. This fact was contested by the republic and referred this court to pages 4 and 5 of the lower court-typed proceedings where the evidence of PW1 is reflected. That the appellant being found by PW1 with his trouser below 2 his knees and the girl’s underwear removed, indicates that his penis was conducting sexual gratification. The trial court judgment on page 5 last two paragraphs reads,I quote; “PW1 is the key witness, he was present at the scene of crime.PW1 did find the accused holding the victim on his laps he was necked and the victim’s underwear was removed... From the above piece of evidence from PW1 what was done to the victim was grave sexual abuse.That accused used his penis to put it to the vagina of the victim.The same was witnessed by PW1”. From the foregoing evidence, there is no doubt that PW1 is a key witness, what PW1 witnessed is the appellant holding the victim on his lap he was necked and the victim’s underwear was removed. But the evidence does not tell or indicate him witnessing the appellant inserting or putting his penis into the vagina of the victim. Those words do not come from PW1 but rather from the court itself as rightly submitted by the appellant. It has been said now and then that the findings of the court have to arise from the evidence tabled beforehand. The remaining witness never witnessed the event. 3 The evidence of PW1 appears to raise strong suspicion against the appellant as the one who did grave sexual abuse to the victim but suspicious however strong can not necessarily sustain conviction as it was held in the case of Hakimu Mfaume V.R (1984) TLR 201. The appellant being seen or found by PW1 with his trouse below his knees and the victim’s underwear removed cannot ipsofactor be a basis and or conclusive evidence that he did commit the alleged offence in the absence of any other tangible evidence. I do join hands on one side the position by the respondent that a party who fails to cross-examine a witness on a certain matter is deemed to have accepted that and will be estopped from asking the trial court to disbelieve what the witness said. However, that can not take away the role of the prosecution in proving their case beyond doubt without waiting or seeking a shield on the weakness of the adverse party. That said the first and second grounds are meritable and sustained. Regarding the third ground of appeal, the appellant blamed the respondent/republic for failure to summon the victim to testify in court. In response Ms . Brenda Mayala SA despite her admission to the fact that in sexual offences, the best evidence comes from the case of Selemani Makumba V Republic Criminal Appeal No 94 of 1999 and that of Fahadi Khalifa V . Republic Criminal Appeal No.573 of 2020 she contended that 4 on page 7 of the typed lower court proceedings, the trial court satisfied itself that the victim due to young age could not explain herself. Hence she challenged the appellants’ blem that the prosecution didn’t bother to bring the victim in court for assessment. This court took the trouble to re-visit the trial court’s proceedings, the record is dead silent on whether the victim was even listed as a witness from the beginning. What is revealed however on page 5 is that the victim was asked her name by PW1 and replied that she is a nursery student at Baby Shine Day Care. This implies that she could tell something if asked. Assuming the victim was listed as a witness, on page 7 of the trial court proceedings where PW2 was testifying the following transpired. I wish to quote for ease of reference; “PP: We pray to show this court the victim who can’t explain herself. Court: I saw the victim she is too young to explain herself”. What grasped from the above-quoted record is the opinion or findings of the court because she was not asked anything and failed to explain. All that was not done and such omission is fatal to the entire proceedings that have an impact on the final verdict. 5 On the last ground of appeal where the appellant challenged his identification, a point which the republic argued that throughout their evidence, they managed to prove their case beyond a reasonable doubt. This point should not detain me much as it is not an issue from the evidence he was found at the scene of the crime. I would have ordered a retrial as a result of the lower court procedural irregularity here in the above pointed, however, the record reveals a number of evidential gaps left unfiled. Ordering a retrial is to cause another denial of justice against the appellant as the prosecution might take that advantage to fill in gaps. The circumstance under which retrial may be ordered was explained in the case of Fatahel Manji V R.(1966) EA 343 where it was held that; "In general a retrial will be ordered only when the original trial was illegal or defective, it will not be ordered where the conviction is set aside because of insufficiency of evidence or for purpose of enabling the prosecution to.' fill gaps in its evidence at the first trial; even where a conviction is vitiated by mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where interest of justice require it”. 6 In the instant appeal basically, the conviction against the appellant was grounded on the evidence of PW1, 2, 3, and 4, PW1 being only a key witness who saw the event but whose evidence is challengable as herein above explained. I have seen nothing tangible from the remaining evidence to associate the appellant with the arraigned offence. In the result then, allow this appeal by quashing the lower court proceedings, and conviction, set aside the sentence imposed against the appellant, and order his immediate release from the prison unless otherwise lawful held. It is so ordered. DATED at MWANZA this 28th day of June 2024. W.M. CHUMA JUDGE Judgment delivered virtually before the appellant in person and Ms.Brenda Mayala State Attorney for the Republic this 28th day of June 2024. W.M. CHUMA JUDGE 7