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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO CRIMINAL APPEAL NO 28440 OF 2024 (Appeal from the decision of the Resident Magistrate Court of Morogoro at Morogoro in Criminal Case No.000016416 of 2024 (Hon. LW. Mwamkoa, PRM dated 23"^^ day of August 2024) HAMAD SALEHE KAPELA APPELLANT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 30/10/2024 & 18/11/2024 KINYAKA, J.: Hamad Salehe Kapela, hereinafter "the appellant" was charged before the Resident Magistrate's Court of Morogoro, hereinafter "the trial court" with two counts of incest by male contrary to section 158 (1)(a) of the Penal Code, Cap. 16 R.E. 2022. The appellant's arraignment before the trial court was premised on the allegations that on diverse dates between March 2024 to May 2024, the appellant had a prohibited sexual intercourse with two girls aged two years namely Husna Hamad and Asma Hamad hereinafter referred to as the "twins or the victims" interchangeably, who to his knowledge, they are his daughters. The appellant denied the charge. In an attempt to prove the allegations against the appellant, seven witnesses were marshalled by the prosecution whose evidence can be summarized as follows. The appellant and PWl were married couples who were living in a rented house at Kimamba Area in Kilosa District with their two twin daughters who were born on 15/01/2022. On the fateful dates, PWl left her home together with one Sofia Gadi and PWS's daughter namely Hamida and went for casual works in rice farms owned by one Rajab, leaving behind her twin daughters in the custody of the appellant(DWl). PWl told the trial court that while at the farm, she had a nightmare that her twin daughters were raped. She eventually went back home to check up on them where she observed that there were openings in her daughters' vaginas but for reason which are not apparent, she did not disclose her observations to anyone. According to her testimony, it was on 20^^ May 2024 while she was bathing the twins when she discovered that there was a watery discharge substance from their vaginas. On the same date, she took the twins to Kimamba Health Centre where she was attended by PW6, Mariam Maroon Kimala, a health worker at the Health Centre. Upon examining the twins' private parts, PW6 advised PWl to have the twins examined by a medical doctor. It is on record that the twins were examined by PW4, Dr. Alfred Julius Chiponda who administered medicine to the twins and directed PWl to go to a nearby police station to be issued with a PF3 as he suspected that the twins' private parts were penetrated. The basis of his findings was that he found the same without hymen, there were whitish substances having bad smell discharging therefrom which indicated that the twins were infected with a bacteria known as streptococci who according to him, they are transmitted through sexual intercourse and commonly in women and not children. On Zl'' May 2024, PWl together with PW6 went to Kimamba Police Station where upon narrating the incident to PW7, one WP 4457 D/SGT Theresia, they were issued with two medical examination forms(PF3) and thereafter, she accompanied them back to Kimamba Health Centre for the twins' medical examination which was conducted by PW4 in the presence of PWl, PW6, PW7 and a social welfare officer. The findings of PW4's examination revealed what has already been stated earlier above but no bruises were found in the twins' private parts. The medical doctor thereafter filled the two PF3 evidencing his findings. In essence, it was his expert opinion that the twins were sexually penetrated and thus infected with streptococci bacteria. According to PW7 who was assigned with the investigation of the case, PWl suspected her husband, the appellant to have been involved in the commission of the offence against her daughters. PW7 however testified that the appellant's apprehension was effected upon her receipt of a call from a secret informant who told her that it was the appellant who had sexually penetrated the twins. In her further investigation, PW7 took the appellant and PWl for medical examination before PW4 on 22"^ May 2024 in order to find if the married couple were Infected with sexually transmitted diseases. The said examination revealed that the two were infected with the bacteria namely streptococci, the very same bacteria that their twins were infected with. On the basis of the said findings, the appellant was on 14*^ June 2024 arraigned before the trial to face the charges against him. In his sworn defence, the appellant associated his alleged involvement on what happened to his twins with the quarrels existing between his family and his wife's family. He however admitted to have been left with the twins on the fateful dates, that he was medically examined for STDs by PW4 as well as his arrest by PW7. His testimony was collaborated with that of Mwanahamisi Hamadi Kapela (DW2) who informed the trial court that the two families are in dispute in relation to one acre of rice farm that she cultivated for the appellant and that the appellant was left with the twins for two weeks. At the conclusion of the trial, the trial court was satisfied that the appellant committed the aforesaid offence. While admitting that the prosecution's evidence was purely circumstantial, the trial court was fortified with the established facts that the victims were left under the custody of the appellant and that the victims were found with sexual transmitted infections that DWl was also found with. It was therefore the trial court's conclusion that the said evidence irresistibly pointed finger to the appellant as the only person who had the prohibited sexual intercourse with the victims. On that account, the trial court proceeded to convict the appellant with the two counts. It further imposed upon him the sentence of thirty years imprisonment. The appellant is before this Court faulting both the conviction and sentence on eleven grounds of appeal that are reproduced hereunder: 1. That the learned thai Magistrate erred in law and in fact to convict the appellant based on the case that was poorly investigated by Police as PWl (Mother of the victims) testified that she had a dream that her children were raped and then want to examine private parts of her children and found were not normal; 2. That the learned trial Magistrate erred In law and fact to convict and sentence the appeliant based on the evidence of an investigator whose investigation was based on hearsay information from an informer who called her on phone telling her that the appellant is the one who raped the victim without giving more information about that informer; 3. That the iearned trial Magistrate erred in iaw and fact to convict and sentence the appeilant based on the evidence PW4(Assistant Medical Officer) whose testimony revealed that the victims were infected by the streptococci bacteria which was also found in parents of the victim and he suggested that the disease can be transmitted in many in parents of the victim and he suggested that the disease can be transmitted in many ways not only sexual intercourse but surprisingly he suggested that victims were raped without direct evidence; 4. That the learned trial Magistrate erred in law and fact to convict and sentence the appellant without observing that the testimony of PW5 who rented a room ciose to the appellant room raised doubt on the . prosecution case particularly when she stated that she had neither hear children crying during night nor saw them lamping but everyday children were normal and they come out to play; 5. That the Medical Assistance Officer misled the trial court when recorded in exhibit (PF3 of the victims) that there were and vaginal canal allowed small finger and no hymen and then wrote evidence of sexual penetration noted from his observation above he did not state to the court what was causes of bruises and if he noticed that vagina canal allow small finger there was possibility the children themselves were scratching their inner parts using their small fingers due to the infection they had and not sexual penetrated as suggested; 6. That the learned trial Magistrate erred in law and fact to convict and sentence the appellant while there was no proper date on when the victims were allegedly sexually penetrated as the charge and evidence of medical expert contradicts on the same; 7. That the learned trial Magistrate erred in law and fact to convict and sentence the appellant based on evidence of PWl who stated that she noticed her children were raped since March 2024 but it is surprising why she did not report to police or any place until May 2024; 8. That the judgment of the trial court was improperly composed when failed to comply with mandatory procedure laid down under section 312(1) of the CPA Cap. 20 R.E. 2022 as there was no factual/points of determination; 9. That the learned trial Magistrate erred in law and facts to convict and sentence the appeilant when wrongiy disregarded and/or rejected the appeilant defence; 10. That the learned trial Magistrate erred in iaw when drawing the inference of guilt from circumstantial evidence without considering that PW2's evidence together with defence evidence weakened or destroyed the inference, hence rendered circumstantial evidence to be unreiied on; and 11. That the case was not proved on the standard required by the law. On the date the appeal was placed before me for hearing, the appeliant appeared in person and unrepresented. On the other hand, Mr. Josberth Kitale, learned state attorney entered appearance on behalf of the Republic. Upon being calied to address the Court, Mr. Kitale informed the Court of the respondent's concession to the appeal at hand based on the eleventh ground of appeal in which the appeliant's complaint was that the prosecution case against him was not proved on the standard required by the law. In support of the ground, the learned counsel referred the Court to sections 3(2)(a) and 110(1) and (2) of the Evidence Act Cap. 6 R.E. 2022 and the case of Joseph John Makunev, R.,(1986)TLR44 and reminded the Court that it is the duty of the prosecution to prove the case against the accused person beyond reasonable doubt. He expounded that in order for an accused to be convicted on circumstantial evidence, the evidence should conform to the four conditions underlined in the case of Bahati Makeja v. R., Criminal Appeal No. 118 of 2006 on page 15 and 16. He was therefore of the view that it was crucial for the evidence to point out that it is none other than the accused who committed the offence considering that the streptococci bacteria could be transmitted through sexual Intercourse or fingers. He told the Court that both the appellant and his wife had the disease and were both interacting with the victims and that there is no evidence on record to prove that PWl was not involved in transmitting the disease to the victims. Mr. Kitaie also casted doubt on the evidence of PWl for her delay to report the matter to the police upon discovering unusual signs at the victim's private parts in March 2024. He cited the case of Marwa Wangiti Mwita & Another v. R, Criminal Appeal No. 6 of 1995 on page 5 to justify his assertions. The learned counsel further informed the Court that there is no evidence from PWl that she had seen the victims with bruises, in pain, walking or sitting uncomfortably, or with depression at any time. He referred the Court to page 14 of the proceedings, where on being cross examined, PW4 said that he didn't find sperms on the victims' vagina and that the victims'female organs could not be penetrated without leaving bruises. He went on discrediting the testimony of PW4 by faulting the procedures applied by him in examining the victims' female organs. To him the examination ought to have been done using two fingers and not a small finger whose size cannot be equated with that of an adult's male organ. It was also his view that according to the evidence of the prosecution, the appellant ought to have been charged with grave sexual abuse according to section 138C of the Penal Code and not section 158(1) of the Penal Code. At the end of it all, Mr. Kitale prayed for the appeal to be allowed and the appellant be set free. Despite the respondent's support of the appellant's complaint in the eleventh ground of appeal, I have also had time to examine the prosecution's 10 evidence that was relied by the trial court in grounding the appellant's conviction and sentence in order to satisfy myself as to whether the appeal is merited As rightly submitted by Mr. Kitale, the courts have in different occasions reiterated a settled principle that in criminal trials, the court must be satisfied that the evidence adduced before it proves the laid down charge against the accused person beyond any shadow of doubt. For instance, in the case of Chausiku Nchama Magoiga v. Republic, Criminal Appeal No. 297 of 2020[2023] TZCA 17810(9 November 2023), the Court of Appeal remarked as follows: 'We are not losing sight that, this being a criminal case, the burden ties on the prosecution to establish the guiit of the accused beyond reasonable doubt The duty ofthe prosecution to prove a criminal case beyond reasonable doubt is universal and, in our case, it is statutoriiy provided for under section 3(2) (a)ofthe Evidence Act, Chapter 6ofthe Revised Laws. Further, in the case ofWoodmington v. DPP[1935]AC462, it washeid inter aiia that, it is a duty ofthe prosecution to prove the case and the standard ofproofis beyond reasonable doubt. The term beyond reasonable doubt is notstatutoriiy defined but case laws have defined it. In the case of Magendo Paul & Another v. Republic[1993] T.L.R. 219, the Court held that: 11 ^ "For a case to be taken to have been proved beyond reasonable doubtits evidence must be strong against the accused person as to ieave a remote possibiiity in his favour which can easily be dismissed." In the instant appeal, It was the duty of the prosecution to prove that the accused was the one who had engaged in prohibited sexual Intercourse with the victims beyond any reasonable doubt. However, having revised the records of appeal, I have found, as rightly submitted by the learned state attorney that there were gaps In the prosecution evidence that should be resolved In favor of the appellant. As indicated earlier, the trial court's conviction of the appellant was pegged on circumstantial evidence that it was the appellant who was left with the victims on the fateful dates and that he was found with the sexual transmitted disease, which were equally suffered by the twins. The law relating to court's reliance on circumstantial evidence In convicting an accused person Is well settled. It has been emphasized through various decisions that In order for circumstantial evidence to form a basis upon which the accused person Is convicted of an offence, the same must point Irresistibly to the accused person in exclusion of other reasonable causes 12 [See the case of Lucas Daudi Wage v. Republic, Criminal Appeal No. 555 of 2021 [2024] TZCA 398(5 June 2024) on page 22]. In determining the appellant's guiltiness in light of the foregoing, I will examine the two facts that were relied upon by the trial court in convicting the appellant. I will start with fact that was narrated in the testimonies of PWl and PW5 that the appellant was the one who was left with the victims. Without hesitations, I disagree with the trial court's line of reasoning on that aspect. From the testimony of PW5, the appellant and PWl's co-tenant who had the chance to observe the twins' daily routine during PWl's absence from home, it is vividly clear that there are minimum chances that the twins were sexually penetrated by the appellant. I say so because In her evidence, PW5 highlighted to the trial court the appellant's mode of life In relation to the wellbeing of the victims on the alleged fateful days. She said on page 17 of the typed proceedings: "...the daily routine ofHamadiand his daughters was that in the morning around OSOOhrs HamadiSaiehe opened the door for his children and the twins always piays in our outdoor kitchen white their father prepared meat ofthe day, after iunch he took them to sieep and when they woke up in the afternoon they continued to piay white their father prepare for the night meat. Aiso the 13 twins used to go and piay to our neighbours Fatuma Makoti who stayed near(approximateiy five feetfrom our house). From the above excerpt, I find nothing suggesting that the appeliant had sexualiy penetrated the victims. In essence, it is was expected that in fear of the neighbours noticing the pains experienced by the victims, the appellant wouidn't be boid to let the victims play in public after having sexually abused them. Nonetheless, apart from the alleged nightmare that PWl had which cannot be relied upon by this Court, there were no signs that the twins were sexualiy penetrated by the appeiiant in her absence. Under normai circumstances, one wouid have expected the twins to be crying in pains either during the said act or at the piaygrounds indicating that they had bruises or pain in their femaie organs. Converseiy, upon being cross examined by the appeiiant as reflected on page 17 of the typed proceedings, PW5 stated that: '!/" did not see the sign that the chiidren were iimping (chechemea). Every day the chiidren came out to piay...I have never heard the chiidren crying during the night" 14 The above piece of evidence leaves a lot to be desired. In my view, had the trial court considered the apparent doubts in the said testimony of its crucial witness, it wouldn't have convicted the appellant on the basis of such a weak evidence. As such, I hold that the prosecution failed to put the accused person in the crime scene in relation to what had befell the victims as regards to the fact that he was the one left alone with the twins on the fateful dates. Again, the fact that the appellant was found infected with the sexual transmitted diseases that was also found with the twins does not satisfactory convince this Court that it was the appellant who was responsible for the said transmission through sexually penetrating them. According to the testimony of PW4, both PWl and the appellant were found with the disease. Further, it was the testimony of PW4 that the said disease though common in women could be transmitted by other means apart from sexual acts. Under the circumstances, in the absence of the testimony from the eyewitness who could have probably saw the appellant committing the offence, it was not safe to convict the appellant on mere suspicions however strong it was [See the case of Marecha Mashala v. Republic, Criminal Appeal No. 447 of 2019 [2023] TZCA 123(17 March 2023) on page 14]. In my view, the aforestated fact could be of relevancy in the matter at hand, 15 had it been that It was corroborating the evidence of someone who witnessed the actual sexual intercourse between the appellant and the victims. In Thomas Okoth Ojwang v. Republic, Criminal Appeal No. 17 of 2020 [2024]TZCA 1009(30 October 2024)the Court of Appeal made the following observations on page 10 in deliberating an akin scenario before it: ''Regarding the evidence of PW4, the medicai doctor, he examined the appeiiant and PWl on 21^ November 2016 which was aimost three months after the aiieged rape. He found PWl with no hymen, she had some bruises and was infected with sexuaiiy transmitted diseases such as, gonorrhea and syphiiis and the appeiiant was found with same diseases. Although in sexual offences medical evidence can prove the crucial element of penetration. It Is not conclusive proof as to who raped the victim. Thus, having considered the facts in totaiity and the law, the fact that the appellant was suffering from gonorrhoea and syphilis like PWl is not a conclusive proof that it is the appellant who raped the i//cf//7i/'[Emphasis is mine]. In view of the above, I entertain no doubt that the prosecution case against the appellant was not proven to the hilt. As such, I accept Mr. Kitale's (fe- 16 invitation for the Court to allow the appellant's appeal based on the eleventh ground of appeal. Having found that the prosecution had not attained the standard of proof in criminal cases, I do not find the need to determine the remaining grounds of appeal. In the event, I quash and set aside both the conviction and sentence Imposed by the trial court on the appellant. I further order that the appellant be immediately released from jail unless held therein for any other lawful reason. It is so ordered. Right of appeal to the Court of Appeal fully explained. DATED at MOROGORO this 18^^ day of November 2024. H. A. KINvi^KA JUDGE 18/11/2024 17