JUDGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 4464 OF 2024 CASE REFERENCE 202402212000004464 (Originating from the decision of the District Court of llala at Kinyerezi, (Hon. R. Z. LYANA - SRM) dated 5th September & 12th October 2023 in Criminal Case No. 57 Of 2023) JULIUS JOSEPH-------------------------------------------------------APPELLANT VERSUS THE REPUBLIC --------------------------------------------------RESPONDENT JUDGEMENT: 23rd & 30th Sept. 2024. KIREKIANO J; The appellant herein was convicted by the District Court at Ilala with one count of grave sexual abuse contrary to section 138(c) (1) (a) and 2(b) of the penal code [Cap 16 RE 2022]. The allegation was that on the 11th day of December 2022 at Nyeburu Chanika area within Ilala District in Dar es Salaam Region, the appellant did unlawfully insert fingers in the vagina of one girl, referred to as XWQ, aged four (4) years old. 1|Page The trial court found that the charge was proved to the required standard and convicted the appellant. The appellant was sentenced to 25 years in jail and ordered to compensate the victim TZS 1,000,000. The evidence that led to the appellant's arrest and prosecution is as follows: The victim is the daughter of PW1 Zaituni Hussein. According to the birth certificate (Exbibit P1), the victim was a child aged four years. On 11/12/2022, around 11hrs, the said PW1 saw the victim with a juice and told her that the appellant gave her the same. Upon curiosity, she learnt that the victim was also walking with difficulty; when she inquired more, the victim told her that Julius had inserted fingers into her genitals. The incident was thus reported to the police, who issued PF.3 for the victim's medical examination at Nguvu Kazi Hospital and again at Amana Hospital. PW4 Fatuma Juma, a medical practitioner at Amana Hospital, examined the victim on 12/12/2022; according to her findings, the victim’s genitals were intact save for colour; that is to say, she observed an abnormal colour of pink instead of red. Her finding was reduced in PF3, which was admitted as Exhibit P-3. The other officer who testified was a police officer PW3 WP 7114 Dcpl Lucy. According to her, on 12.12.2022, the appellant did confess to 2|Page her that he inserted fingers into the victim’s genitals for sexual gratification. The caution statement was admitted as Exhibit P-2. The victim's version was that the appellant inserted fingers into her genital after alluring her with a juice she was recorded to have said at Pg 19 “Julius took me Kisha akaniumiza kwa kukojolea kwangu aliniumiza na kidole chake” On his part, the appellant, DW1 Julius Joseph, testified that he was arrested on 18/12/2022. He was kept in police lockup for four days before he was accused with theft, he remained there until he was charged on 15/02/2023 with the offence of sexual abuse. He denied knowing the victim until when he saw her in court. He said a militiaman arrested him on his way from work, took his money, TZS 75,000, and he was taken to the police, where he was accused of theft. He said he remained in lock- up until when he was charged on 15.2.2023. It was his version that PW1 fabricated this case as she owed him TZS 150,000/=. He urged the trial court to find the witnesses not credible. Based on the above evidence, the trial court found that the charge against the appellant was proved to the required standard; it went on to convict the appellant and sentence him as stated above. Dissatisfied, the appellant lodged this appeal on six grounds. 3|Page 1. That the learned Trial magistrate erred in law and facts to convict the appellant based on evidence of the prosecution, which is lacking and valueless. 2. That, the learned trial Magistrate erred in law and fact to hold- that evidence of Pw.4 (the doctor) corroborates the testimony of Pw2 as he found reddish inside the vagina of Pw2 without Taking into account that the natural colour of the vagina inside is reddish. 3. That, the learned trial Magistrate erred in law and fact to place reliance on the invalid cautioned statement (Exhibit P.2), which was illegally obtained and unprocedural tendered. 4. That the learned trial Magistrate erred in law to convict the appellant in a case which was not proved beyond reasonable doubt by the prosecution side 5. That, the trial magistrate erred inland fact by failing to consider the defence case. 6. That, the learned trial magistrate misapprehended the records in court to hold that the evidence of Pw4 (the doctor) corroborates the testimony of Pw2, the victim. This appeal was heard by way of written submission. The appellant was unrepresented, while the respondent had the service of Miss Florida Wenseslaus Learned, state attorney, In his submission, the appellant submitted that the evidence of the medical practitioner PW4 from Amana corroborated a similar finding of examination of the victim at Nguvu kazi Hospital that there was nothing 4|Page notable on the part of the victim’s genitals. According to the appellant, if the fingers of a nineteen-year-old man had been inserted into the victim’s genitals, the two doctors would have certainly noticed this. The appellant argued that it was the prosecution’s duty to lead the witness to testify on the offence which was laid against the appellant, which they did Moses Edward V Republic, Appeal No. 599 of 2017, CAT and between Said Mfaume V.R, CAT Criminal Appeal No. 39 of 2008 (unreported) The prosecution ought, to have led clear evidence that the victim. On the second ground on caution statement, the appellant stated he was arrested on 18.12.2022; hence, he could not be at the police station on 12.12.2022 for PW3 to write his statement. The arresting officer was not called as a witness to testify when the appellant was arrested and charged with which offence because the appellant testified that he was arrested and charged with a different offence, theft. He also submitted that he was not given an opportunity to examine the prosecution exhibits before they were admitted and was not informed by the court of his rights to object to their admission. He cited the decision in Ramadhan Juma Kizenga Vs the Republic (unreported); the court observed that failure to allow the appellants to 5|Page express whether or not they objected to the admissibility exhibit was an incurable irregularity. On the fifth ground in the defence case, he argued that he was kept in the police because PW1 did not want to pay the sum of Tshs 150,000 she owed the appellant, thus fabricating this case. That is why the evidence in PF3 and examination from Nguvukazi Hospital and Amana Hospital do not show that the appellant did insert any finger into PW1's genitals. According to him, his defence was not considered by the trial court. He cited Kaenge Christopher V Republic, CAT (unreported). On page 24 of the typed judgment, the court observed: “It seems clear to us that the learned trial magistrate dealt with the prosecution evidence on its own and arrived at the conclusion that the same comprised proof of the case and, as a result, i.e. did not at all but the defence case into consideration. According to the appellant, no evidence was given to prove that the victim’s vagina had been inserted with fingers; the medical witness Pw4 testified that she noted no bruises in the victim’s vagina. No witness saw the appellant inserting fingers in the victim’s vagina. The victim said 6|Page nowhere that the appellant inserted his fingers into her vagina; he argued this court merited the appeal and set him free. On his part, the counsel for the respondent argued the 1st, 2nd, 4th and 6th grounds of appeal, centred on a complaint that the charge was not proved beyond a reasonable doubt. He beseeched this court to rely on a well-established principle that the best evidence in sexual offences, like the one at hand, comes from the victim herself as she is the one to express her sufferings during the incident. In support of his stance, he cited Selemani Makumba v. Republic [2006] T.L.R. 379, Hamis Mkumbo v Republic, Criminal Appeal No. 124 of 2007 and Rashidi Abdallah Mtungwa v. Republic, Criminal Appeal No. 91 of 2011 Mariko Thomas vs Republic (Criminal Appeal 225 of 2017) [2020] TZCA 1760 (27 August 2020) On the third ground on evidence in the caution statement, he maintained that the same was admitted without any objection and no cross-examination was made; thus, the appellant complaint at this stage is an afterthought. He cited Martin Misara vs Republic (Criminal Appeal No. 428 of 2016) [2018] TZCA 318 (13 December 2018) that; 7|Page "It is the law in this jurisdiction founded upon prudence that failure to cross-examine on a vital point, ordinarily, implies the acceptance of the truth of the witness evidence, and any alarm to the contrary is taken as an afterthought if raised thereafter.” On the fifth ground, he argued that this court should consider page 5 of the typed Judgment of the trial court, where the trial Magistrate considered the defence case and made a finding as he did. In his rejoinder, the appellant maintained that the findings in PF3 meant that there was no proof of any fingers inserted in the victim’s vagina. Thus, the case against the appellant was not proved beyond a reasonable doubt. As such, the evidence in the caution statement was worthless, considering that the appellant was kept in police custody for more than two months when PW3 told the court that she confessed on 12/12/2022 but was arraigned in court on 15/02/2023. On my part, I will start with the complaints in the 2nd, 4th and 6th grounds of appeal, centered on a complaint that the charge was not proved beyond a reasonable doubt. The appellant's argument in this appeal was that there was no direct evidence that he was proving the allegation. He also argued that this court 8|Page should find that the prosecution witnesses were not credible. He also attacked the weight of the doctor's evidence. While I address this, I am aware that the law as it stands is that in these types of offences, the best evidence is that of the victim. There are several court decisions to this, including the cited decision in Selemani Makumba but also in Godi Kasenegala v Republic-Criminal Appeal No. 10 of 2008 thus; The proof of rape comes from the prosecutrix herself. Other witnesses, if they never actually witnessed the incident, such as doctors, may give corroborative evidence.” I am also aware that the witness evidence should not be taken as gospel truth, but her testimony should pass the test of truthfulness. See CAT decision in Mohamed Said v. the Republic, Criminal Appeal No. 145 of 2017 (unreported) Now, the victim testified that she knew the appellant; the appellant took her and inserted fingers into her genitals; she was recorded to have said, “Julius took me Kisha akaniumiza kwa kukojolea kwangu aliniumiza na kidole chake” She also said the appellant gave her a juice, which she took and reported to her mother. Going by the prosecution evidence available, 9|Page the direct evidence is that of the victim who testified as PW2, as stated above. In reevaluating the evidence, I have weighed the victim’s story. It is on record that her mother, who testified as PW1, saw the victim with juice, and the victim told her that Julius offered her the juice. As such, the victim said she was in the company of her friend Jesca, who left her; the name Jesca is also featured in the appellant's caution statement (Exhibit P3). I am prepared to find the victim credible; I note that the credibility of the evidence of her mother is an issue based on defence evidence. As such, the credibility evidence in the caution statement is at issue on the day of arrest. While considering the victim's story, I have also considered her choice of words; the trial court concluded that the victim referred to her vagina, and there was no contrary argument from the defence. In Hassan Bakari © Mamajicho Vs Republic criminal appeal no 103 of 2012 CAT Mtwara. The court stated, ‘’There are circumstances, and they are not few that witnesses in open court or even the court would avoid using such direct words as penis, vagina and the like for obvious reasons including but not restricted to that passions, cultural background, up bring, religious feelings; the audience 10 | P a g e listening; the age of the person and the like these restrictions are understandable given the circumstance of each case. This victim, according to the evidence available, was four years old, and the word used was sufficiently understood to mean her private parts. This was not the issue. In this appeal, there is also an argument that the evidence from the doctor who examined the victim did not find anything. According to the appellant, if the fingers of a nineteen-year-old man had been inserted into the victim’s genitals, the two doctors would have certainly noticed this. I am aware that in unconsented sexual encounters and incidences like the one at issue, injuries may be sustained. However, if the victim was found with no injuries, this does not necessarily mean she was not abused; evidence of bruises is relevant but not an element to be proved in sexual offence. My conclusion is fortified by the decision Nkanga Daudi Nkanga Versus The Rep Criminal Appeal No.316 Of 2013 CAT Mwanza, ; Evidence of resistance such as physical injuries to the body is not necessary to prove that sexual intercourse took place without consent.” I thus find that the fact that the evidence in PF3 and the oral account of the doctor that the victim was not found with bruises did not weaken the 11 | P a g e victim’s evidence. It is one thing to have no evidence and another to have contradicting evidence. In this case, I find that the evidence in PF3 was not worth corroborating the victim's story. The second ground is merited. The fourth ground-on caution statement shows that it was made on 12.12.2022. I have considered the appellant's argument that he was arrested on 18.12.2022; this fact does not feature in this statement. The way it was crafted was clinical, not to raise such doubt. As such, this statement was admitted without any objection. Now, according to the content of this statement, the appellant was arrested on 12.12.2022, and the statement was recorded on that date. He admitted before PW3 Dcpl Lucy that he inserted fingers into victims’ genitals for sexual gratification. This takes me to the appellant's complaint on the fifth ground, which stated that his defence was not considered. Now, about the defence evidence, the legal position is that the defence case deserves equal scrutiny and consideration before a decision may be reached. In Kaenge Christopher V Republic, CAT (unreported). Criminal Appeal No. 187 of 2016, between page 24 of the typed judgment, the court observed: The proper approach should have been for the magistrate to deal with the prosecution and defence, and after 12 | P a g e analysing such evidence, the Magistrate should have then reach the conclusion”. In this appeal, the appellant's base is that he was arrested on 18.12.2022 and accused of theft, and this case was also faked out of money the victim's mother owed him. In this, the appellant attacked the prosecution's delay in arraigning him in court and the evidence in the caution statement that it did not match his days of arrest. The trial court noted the appellant complained that the charge was fabricated but was not convinced that it doubted the victim's story. As such, I have considered the unexplained delay period in charging the appellant. Reading from the charge and the record, it is clear that the offence occurred on 11.12.2022. Going by the evidence in the caution statement, the appellant was arrested on 2.12.2022. the record shows that he was charged in court on 15.2.2023. There was no evidence from the officers who arrested the appellant to prove when the appellant was arrested. The appellant complained that Mitilia's men arrested him on 18.12.2022, accusing him of theft, and he was detained till Feb 15, 2023. 13 | P a g e As indicated, neither the arresting officer nor the investigator provided evidence explaining why the appellant was not brought to court in a timely manner or rebutting the appellant's complaint that he was detained for two months. The appellant's detention for about two months remains unexplained. It has been emphasised that if the accused is not brought to Court expeditiously, the prosecution has to explain why there was a delay. In the absence of such explanation, an adverse inference will be drawn against the prosecution, derogating the prosecution case. In this state of affairs, the appellant's complaint is legitimate, considering that the appellant's defence was that the charge was framed against him. In a scenario akin to this, the Court of Appeal in the case of Ramson Peter Ondile v. The Republic, Criminal Appeal No. 84 of 2021 [2022] TZCA 608 (6th October 2022) that, "It is therefore our considered view that the unexplained delay to arraign the appellant in court creates doubt in the prosecution case as to whether the incident occurred as alleged (Emphasis added) Had the trial court evaluated this aspect, it would have doubted the good story of the prosecution case, which is the evidence of the victim's mother 14 | P a g e and the prosecution case. I thus find merit in the appellant's complaint on the fifth ground of appeal and merit the same. This takes me to the fourth ground: the charge was not proved beyond reasonable doubt. Given the reasons aforesaid, it suits to say that the prosecution did not prove the case beyond reasonable doubt. I will thus pose here and allow the appeal and hold that the charge against the appellant was not proved in the required standard ground of appeal. The conviction, sentence and compensation order meted against the appellant is set aside. The appellant is to be released from prison unless otherwise lawfully held. A. J. KIREKIANO JUDGE 30.9.2024. 15 | P a g e COURT: Judgment was delivered in the presence of the appellant, and presence of Miss Jackline Werema learned state attorney for the Republic A. J. KIREKIANO JUDGE 30.9.2024. 16 | P a g e