Amir aMustapha

IN THE HIGH COURT OF THE UNITED REPUBLIC OFTANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA CRIMINAL APPEAL NO. 83 OF 2023 (Arising from Criminal Case No.Slof 2023, District Court of Missenyi) AMIR MUSTAPHA.. .............. APPELLANT VERSUS REPUBLIC............................... ........RESPONDENT JUDGMENT 12.08.2024 & 28.08.2024 KIWONDE, J.: The appellant, one Amir Mustapha, was arraigned before the District Court of Missenyi for an offence of incest by male contrary to section 158 (l)(a) of the Penal Code, Cap 16 (R. E 2022) in Criminal Case No. 81 of 2023. In the charge laid down against the appellant, the prosecution alleged that the appellant, on 5th March 2023 at Bunazi Village within Missenyi District in Kagera Region, did have sexual intercourse with his daughter R d/o A (for the purposes of not disclosing the identity of the victim) a girl aged two (2) years. The appellant pleaded not guilty and the prosecution paraded a total of five (5) witnesses (PW1-PW5) to prove the case. The defence had three (3) defence witnesses. Upon a full trial, the appellant was convicted and sentenced to serve life imprisonment in jail and subsequently, he was ordered to compensate the victim at the tune of TZS 5, 000, 000/=. The appellant was aggrieved by the decision of the trial court (Y. C. Myorribo, PPM). He has: preferred an appeal to this court based on six (6) grounds of appeal below: 1. That the case against the appellant was not proved beyond reasonable doubts, 2. That the honourable Magistrate erred in law for failure to draw an adverse inference against the prosecution who failed to call material witnesses. 3. That the trial court erred in law for convicting the appellant on the basis of the evidence of the victim which was illegally received. 4. That the trial court erred in law and in fact that even the evidence of the medical expert reflected in the PF3 shows that there was non-penetration. 2 5. That the trial court erred in law for erroneously neglecting the appellant's defence of alibi which the particulars were furnished to the prosecution and the court on 11th July 2023 before the prosecution case Was closed. 6. That as a condition precedent in assessing credibility of the witness, the trial court erred in law by not analysing and assessing the reasonableness and truthfulness of the alleged victim's testimony. The appellant prayed this court to allow the appeal, quash the judgment of the trial court, set aside the conviction and sentence and set him at liberty. During hearing of the appeal, the appellant was represented by Mr. Dunstan Mutagahywa, learned advocate, while, the respondent was represented by Miss Gloria Lugeye, learned State Attorney. The counsel for the appellant dropped the third (3) ground of appeal and argued the rest five (5) grounds of appeal. Basically, in arguing the first ground of appeal, the counsel for the appellant said the prosecution case was not proved beyond reasonable doubts because it had some doubts. He said there was no evidence that the appellant had sexual intercourse with the victim 3 and even the victim stated nowhere, rather, she gave a single phrase "baba aiiniingizia dudu hapd'w\\vd\ statement does not mean a male organ because the same victim said even her mother had put dudu unto her. Also, the counsel submitted that there was no penetration. The learned counsel said the PF3 showed that there was external vaginal hymenectomy which can be caused by inflammation, infection or allergic reaction. The rapture of hymen was due to surgical procedure and riot otherwise. The counsel said the doubts have to be resolved for the benefits of the appellant. According to the counsel, the submissions cover the fourth (4) ground too. As to the second ground of appeal, the counsel argued that the trial court had to take adverse inference against the prosecution case since the material witnesses like Kusai, a standard seven pupil and the other child were not brought to court to testify without giving reasons. These were children mentioned by the victim's mother that she left them with the victim at home. The counsel referred to the case of Aziz Abdallah V. R [1991] T. L. R71. Concerning the fifth (5) ground of appeal, the counsel argued that the trial court did not even discuss or consider the appellant's defence of alibi. 4 Finally, the sixth ground of appeal, the counsel said the trial court did not properly analyse and assess the credibility of the evidence of the victim. According to him, the evidence was not credible when she mentioned that the appellant, her father put duduon her private part while the same witness said even her mother put dudu.vn her. When the counsel was asked to address the court on the issue of moving the court by memorandum of appeal instead of petition, he said the error does not go to the root of the appeal. The court to determine the appeal on merits to decide on the rights of the parties. In reply, the learned State Attorney for the respondent Republic opposed the appeal. However, she readily conceded the fifth ground of appeal that the trial court overlooked to consider the defence of alibi of the appellant. But she said this first appellate court can re­ evaluate the evidence to see to it if it can shake the prosecution evidence. Submitting on the first and fourth grounds of appeal, the learned State Attorney said the prosecution case was proved beyond reasonable doubts since the witness, PW2 who is the victim explained that her father put dudu on her private parts pointing to her private parts. She said dudu was defined to mean male organ 5 citing the case pf Filbert Gadson Paschal Versus Republic, Criminal Appeal No. 267 of 2019. Besides that, the State Attorney argued that even in cross- examination, the victim witness was consistent to state the same, in re-examination too. Other witnesses, PW1 and PW4 said they found some bruises on the victim's vagina. While, PW3 said there was no hymen found with the victim. The PF3 shows that there was use of blunt object. The learned State Attorney said under section 130 (4)(a) of the Penal Code, Cap 16 (R. E 2022), penetration, however slight suffices to prove sexual intercourse. She said the best evidence in sexual offences comes from the victim, referring to the case of Seleman Makumba V. R [2006] T. L. R 379. Regarding the second ground of appeal, the learned State Attorney argued that there is no particular number of witnesses required to prove a fact under section 143 Of the Evidence Act, Cap 6 (R. E 2022). The evidence shows that when Pwl came back home she found the appellant at home. But there is no evidence to show that Kusai eye witnessed the event. Whereas, the appellant became furious when asked about the matter. 6 On the sixth ground of appeal, the State Attorney replied that the trial court discussed on the credibility of the evidence of the victim. It is best placed to the position of assessing the demeanour and credibility of the witness. The victim is entitled to credence. Apart from that, the State Attorney said the typed proceedings and the hand written ones differ on a single sentence, so, it was just a typing error. Furthermore, she said moving the court by memorandum of appeal instead of petition has no negative effect on the appeal. The State Attorney asked this court to find the appeal is without merits and dismiss it. The appellants counsel had brief rejoinder submissions in which he reiterated what was submitted in-chief. I now turn to consider and discuss the submissions in relation to the grounds of appeal. From the petition of appeal, trial court's records and the oral submissions, the main issue for determination is whether the appeal has merits or otherwise. In law, the appeals from District courts or courts of Resident Magistrates to this court are by way of petition as provided for under 7 section 362 (1)(2) of the Criminal Procedure Act, Cap 20 (R. E 2022). But this appeal was commenced by memorandum of appeal. When inquired to address the court, both sides said it is a minor error that does not go to the root of the appeal and asked the court to invoke overriding objective principle to cure the defect so that the appeal can be determined on merits. I concur with them for the interests of justice. For that matter the appeal to be dealt on its merits. I opt to begin my deliberations with the fifth ground of appeal which was readily conceded by the respondent. This is to the effect that the trial court erroneously neglected the appellant's defence of slibi. Upon going through the trial court's proceedings, it is apparent that the trial Magistrate considered the appellant's defence of alibi can be depicted from pages 8 to 10 of the judgment. But he was reluctant to accord it weight on reason that the defence was raised during defence hearing after the prosecution case had been closed. In refusing this defence, the trial Magistrate at page 10 of the judgment said raising defence of alibi during defence deprived the prosecution's right to challenge it. This indeed, was improper to hold so. I concur with the counsel for the appellant that the defence of alibi was raised before closure of 8 the prosecution case by furnishing particulars of the same to the prosecution and the court on 11th July 2023. This is because the prosecution case was closed on 25th July 2023. The appellant's defence was properly raised under section 194 (5) of the Criminal Procedure Act, Cap 20 (R. E 2022), It is now settled legal principle that even if the defence of alibi is improperly raised, the trial court has a duty to consider it but with discretion to accord it no weight or otherwise under section 194(6) of the Criminal Procedure Act, Cap 20. Therefore, in this appeal, the trial court had no discretion to consider it and accord no weight as it did, because the defence of alibi was properly raised. Rather, it had to consider it as any other defence evidence. Also, it was rightly stated by the State Attorney that failure to consider defence can be cured by the first appellate court stepping into the shoes of the trial court and re-evaluate the defence evidence and come with its own findings. This being the first appeal, it is in the form of rehearing that the entire evidence can be subjected to scrutiny and this court can come up with its own decision. The position of the law was stated in Yustus Aidan Versus Republic, 9 Criminal Appeal No.454 of 2019 [2Q22] TZCA 622 (6th October 2022) TanzLii. I have laboured to scrutinize the defence evidence. The appellant, referred to as DW1 at the trial, said on 5th March 2023 he slept at Kamachumu in Muleba. By so saying he meant that he could not commit the offence on that date while he was somewhere else. Leave that alone, the witness, DW2, one Raheel Mustapha said On 5th March 2023 the appellant went to her at Kamachumu at 7:30 hours and left early in the morning on 6th March 2023 and DW3 said on 4th March 2023 the appellant went to him at Bukoba claiming that his wife had not come back home the last day, and so, he was going to tell his parents at Kamachumu-Muleba. When the defence evidence is compared with the prosecution evidence, it is apparent that the defence evidence is heavier than that of the prosecution. Thus, the appellant (accused) could not commit the offence on 5th March 2023 while he was at Kamachumu- Muleba. The fifth ground of appeal finds merits and it is hereby allowed. Reverting to the second ground of appeal, I concur with the counsel for the appellant that the material witness, one Akram Amir 10 Mustapha was not brought to court to testify without giving any reason. This witness was mentioned by PW1 (victim's mother) that he is the one Who told PW1 that on the fateful date of 5th March 2023, the appellant is the one who bathed the victim child. Had this witness been brought to court, he would give evidence to prove that the appellant actually was present at the crime scene that day. There was no reason given why this witness was not called to testify. So, the trial court had to make adverse inference against the prosecution case. Furthermore, about the witness Kusai, he was named by PW1 that she left the victim child with them and even in her return from the farm, she found both at home. Thus, this was also material witness to prove that the appellant was at the scene of crime on the material date of event. The second ground of appeal is merited and it is allowed. Coming to the first ground of appeal, the parties are at variance as to the sufficiency or otherwise of the prosecution evidence to prove the case beyond reasonable doubts. In fact, the available evidence is insufficient to prove the prosecution case beyond reasonable doubts. It has to be born in mind that the witnesses, PW1, PW4 and 11 PW5 did not eye witness the event. They were merely told by the victim that the appellant perpetrated the unlawful act of incest by male. So, their evidence as to who committed the offence was just hearsay which is generally, inadmissible. For that matter, the sole evidence which remains is that of the victim. I am in agreement with the State Attorney that in sexual offences the best evidence comes from the victim herself. However, such evidence must be sufficient enough to prove the offence. Under section 127 (7) of the Evidence Act, Cap 6 (R. E 2022) as amended, if the court is satisfied that the victim testified only truth, can base conviction on such evidence without corroboration. In this appeal, the victim, a child of 2 years old merely gave a single statement that her father put dudu on her vagina and he applied medicine. This was uttered after the prosecutor asked her what the appellant had done to her. In my view, this was not sufficient evidence to prove that the appellant had sexual intercourse with the victim child. In my view, this evidence of the child required corroboration. Apart from that, the medical evidence was contradictory. The witness, PW3 said there was no any penetration. He said the blunt 12 object might have been used to cause friction on the external part of the vagina that is why it became reddish. At the same time, when he was questioned by the court, this witness said hymen could not be raptured without penetration. If the appellant actually had sexual intercourse with the child of 2 years of age to the extent of rapturing her hymen, the victim could not even walk and would sustain severe pains despite the application of the said medicine. In the PF3, it is shown that there was non-penetration but observed hyperaemic vaginal external with hymenorrectomy and scratched hymen by use of blunt object. At the conclusion, this medical opinion showed that it was an attempt to rape. I am aware that expert opinion is not conclusive evidence, but when it is weighed together with the other evidence, I find it supports no conviction. From this evidence, it cannot be said that the victim had sexual intercourse with the appellant. Even the said slight penetration, no evidence proves it. It is thus, true that the prosecution case was not proved beyond reasonable doubts. The first ground of appeal is with merits and it is allowed. 13 The first, second and fifth grounds of appeal suffice to dispose of the entire appeal and so, I find no need to go on expounding the rest of the grounds. Consequently, the appeal is allowed. The trial court's judgment is quashed, order of conviction, sentence and order of compensation are set aside and the appellant be released from prison unless he is held for other lawful reason. Dated at Bukoba this 28th August 2024. F. H. KIWONDE JUDGE 28/08/ 2024 Court: Judgment is delivered in chamber in the presence of Miss Matilda Assey, State Attorney for the respondent Republic, the appellant in person and Grace Mutoka (RMA) this 28th August 2024 and the right of further appeal is explained. F. H. KIWONDE JUDGE 28/08/ 2024 14