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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 13941 OF 2024 (Appeal from the conviction and sentence of the District Court of Kiteto in Criminal Case No. 66 of 2023) MOHAMED AMIRI.................................................................. APPELLANT VERSUS REPUBLIC.......................................................................... RESPONDENT JUDGMENT 07th October & 21st November, 2024 KAMUZORA, J. The appellant was aligned before Kiteto district court (hereinafter referred to as the trial court) charged for raping a girl aged 8 years old. For the purpose of covering her identity, the girl shall be referred to as PW1 or simply, the victim. On the fateful date of 04/06/2024, the victim met the appellant on her way home. The appellant took the victim to unfinished house and while inside that house, the appellant blocked the victim's mouth, undressed her clothes and his clothes and inserted his penis into the victim's vagina. Two women saw the appellant entering the said house with the Page 1 of 18 victim and decided to follow them. They saw the appellant with the victim but the appellant fled away with his trousers on his knees. They sent the victim to her mother who then reported the matter to the police station and sent the victim to the hospital for examination. The doctor's observation was that, the victim's vagina had no bruises, her labia majora and labia manora were normal but she had no hymen (not virgin) and the virginal orifice was widened suggesting that she was penetrated. The appellant was arrested and aligned before the trial court and despite his denial to the offence, he was convicted and sentenced to life imprisonment. Being aggrieved with the conviction and sentence meted out against him, the appellant has preferred the instant appeal with five grounds which can be conveniently rephrased and reduced into 3 grounds as follows; 1. That, trial court erred in iaw and in fact for convicting the appellant based on weak evidence o f the prosecution side which did not prove the case beyond reasonable doubt 2. That, the trial court erred in law and in fact for failure to properly evaluate the evidence on record and for failure to consider that the investigator was a key witness was not called to testify. 3. That, the appellant was not given time to call his relative, advocate or friends during interrogation. Page 2 of 18 In his submission in support of the 1st ground of appeal, the appellant argued that, the case against him was not proved beyond reasonable doubt. He submitted that, the doctor who attended the victim failed to establish that the victim was penetrated as there were neither bruises nor sperms. He argued that, it was impossible for the victim aged 8 years old not to sustain bruises taking into account the size of her organ. He was of the view that the doctor's testimony that the victim's vagina was widened and she had no virginity does not justify that she was penetrated by the appellant rather presupposes that the victim was penetrated by another person. The appellant submitted further that PW3 and PW5 testified before the trial court that they saw a person with a child in unfinished house but the said person fled. That, none of those witnesses saw the appellant raping the victim thus, there was no water tight evidence on identification of the culprit. He added that, the evidence shows that the offence was committed at night but neither witness explained on how they were able to identify the appellant or the source of light used for identification. The appellant also submitted that the investigator in criminal case was a material witness to establish what was discovered during investigation. He insisted that, the prosecution failed to prove the case beyond reasonable doubt thus prayed for this court to be Page 3 of 18 guided by the decision in the case of Jonas Nkize vs Republic [1992] TLR 213. As to the 2nd ground of appeal, the appellant faulted the trial court for not properly evaluating the evidence on record. He argued that, the trial magistrate failed to evaluate the evidence on record arriving into unjust conclusion for he failed to appreciate the fact that there was no sufficient evidence on identification. That, the trial magistrate did not consider that the evidence by the medical doctor did not establish whether the victim was penetrated. On the 3rd ground, the appellant submitted that, he was not accorded time to call relatives, friends or advocate during interrogation. He also submitted that he was not informed by the trial court of his rights to call witnesses during defence hearing of the case. He therefore urged this court to allow the appeal. In reply, Ms. Msawa supported conviction and sentence passed by the trial court on account that the prosecution proved the case against the appellant beyond reasonable doubt. Submitting against the 1st ground of appeal, the learned state attorney argued that, in proving the offence of Page 4 of 18 rape, three elements must be proved as per section 130 (4) (a) of the penal code; that, there was penetration to the victim, the accused is the one who committed the offence. On the element of penetration, the learned state attorney submitted that, penetration however slight can prove the offence of rape. She contended that the victim (PW1) in this case proved penetration as she explained on how she met the appellant and how he raped her. The learned state attorney observed that the victim was a child of tender age thus, there was a need to comply with section 127 (2) of the Evidence Act [Cap 6 R.E 2022]. She explained that the above provision was complied with because the trial magistrate recorded that section 127 of the Act was complied with. She added that, although the magistrate did not record the child's promise to tell the truth, such error is curable under section 32 of the Legal sector Laws (Miscellaneous Amendment) Act No 11 of 2023 which amended section 127 of the Act by adding the subsection that failure to comply with subsection 2 will not render the evidence of child of tender age inadmissible. She insisted that, the evidence of a child witness proved that she was penetrated and such evidence was corroborated by PW2 and PW5 who saw the appellant entering the house with the victim. PW5 also claimed to have Page 5 of 18 gone there and saw the appellant running while his trouser undressed to the legs. She insisted that, the appellant was identified by three witnesses thus, the second element on whether it was the appellant who committed the offence was proved. As to the third element, the learned state attorney argued that, since the victim was below 18 years, it is also important to prove the age. She submitted that, the evidence show that the victim was a pupil at Mbigiri primary school aged 8 years. That, the charge sheet and the PF3 shows that the age of the victim was 8 years. She referred the case of Abdul Aquiline Mrambe vs Republic, Criminal Appeal No 342 of 2021, TanzLii [2024] TZCA, 704 and section 122 of the Evidence Act on who can prove the age of the victim. She insisted that, the victim's age was proved by the prosecution evidence including the PF3 and which proves that the victim was below the age of 18 and the appellant never cross examined her on her age. She added that, PW2 and PW5 were not cross examined on their evidence that they saw the appellant entering and leaving the house undressed. She referred the case of Nyerere Nyague vs Republic, Criminal Appeal No 67 of 2010, TanzLii [2012] TZCA, 103 in which it was held that failure to cross examine a witness means that the accused was in agreement of what they said. Page 6 of 18 On the argument regarding the testimony by the investigator, the learned state attorney submitted that under section 143 of the Act there is no particular number of witnesses to prove the case. She maintained that, six witnesses who testified in court proved the offence beyond reasonable doubt. As to the 3rd ground of appeal, the learned state attorney referred the case of Nyerere Nyague (supra) on the circumstance under which the cautioned statement can be objected and argued that, the objection must be made at the time of tendering the exhibit. She submitted that, the cautioned statement was tendered by PW6 DC Neema and the record shows that the appellant never objected the admission of the statement. She was of the view that, to bring such argument at this stage is an afterthought for the same was supposed to be raised at the time of tendering the document. In concluding, the learned state attorney prayed for this court to find that all grounds of appeal are meritless and dismiss the appeal. The appellant had nothing material to rejoin. Having gone through the record and submission each side, I will deliberate on the 1st and 2nd grounds of appeal jointly for they are basically relate to the evaluation of evidence. The arguments raised by the appellant Page 7 of 18 that the case was not proved are based on the following points; that, there was no water tight evidence to prove rape, no evidence of identification, the prosecution did not call material witness and the evidence of the medical doctor did not prove penetration. Since the appellant is faulting the trial court for not properly evaluating evidence, I will re-appraise the evidence and see if there was water tight evidence proving the offence of rape. In doing so, I will also consider the weight of the victim's evidence despite being recorded contrary to section 127 (2) of the Evidence Act as the error is now curable under the Legal sector Laws (Miscellaneous Amendment) Act No 11 of 2023 which amended section 127 by adding subsection 7 which states clearly that failure to comply with sub-section 2 will not render the evidence of child of tender age inadmissible. The appellant was charged for statutory rape for the victim was a child aged 8 years old. The trial court convicted the appellant based on oral testimony of prosecution witnesses and cautioned statement of the appellant. I will therefore assess such evidence in its totality and see if it proved the offence of rape against the appellant. In proving statutory rape, three elements must be tested; the victim's age, penetration and that, the accused was responsible for rape. There is no Page 8 of 18 dispute that the victim in this case was a child below the age of 18 but there is an issue regarding the victim's penetration. The prosecution side contended that prosecution witnesses proved penetration and the appellant confessed to have sexual intercourse with the victim. Reading through the said confession, this court asked itself if it could safely be relied upon on conviction. The said statement was recorded by a police officer one WP5621D/CPL Elizabeth but it was tendered by PW6 WP6861 DC Neema for the reason that, the officer who recorded the statement was on maternity leave. PW6 did not account in her statement if all procedures were adhered to before the cautioned statement was recorded. Although the appellant never raised objection when the statement was tendered, it was still important for the witness to clarify before the trial court on the compliance of the legal requirements. The trial court believed the statement to be true on ground that it was voluntarily made by the appellant. But in my view, the truthfulness of the cautioned statement cannot be assessed based only on voluntariness in recording the same but also based on other factors including the contents of the statement and the circumstances surrounding its recording. InTuwamoi Page 9 of 18 Vs Uganda (1967) EA. 84, the defunct appellate court summarised the position of the law on confessions at page 91 as follows: " We would attempt to simplify the position. First the onus o fproof in any criminal case is on the prosecution to establish the guilt o f an accused person. A conviction can be founded on a confession o f gutit by an accused person. The prosecution must first prove that this confession has been properly and legally made. The main essential for the validity of a confession is that it is voluntary, but the other legal requirements of each territory must also be established. .... I f the court is satisfied that the statement is properly admissible and so admits it, then when the court is arriving at its judgment it will consider all the evidence before it and all the circumstances o f the case, and in doing so will consider the weight to be placed on any confession that has been admitted. In assessing a confession, the main consideration at this stage will be, is it true? And if the confession is the only evidence against an accused, then the court must decide whether the accused has correctly related what happened and whether the statement establishes his guilt with that degree of certainty required in Page 10 of 18 a criminal case. This applies to all confessions whether they have been retracted or repudiated or admitted, but when an accused person denies or retracts his statements at the trial then this is a part o f the circumstances o f the case which the court must consider in deciding whether the confession is true." In the matter at hand, the said confession statement shows that the appellant admitted to have sexual intercourse with the victim, but the said statement contains no clear story of the incident. For instance, the statement shows that the victim was standing at the moment of the incident without further explanation on how they were having sex while standing. In fact, the confession itself does not account clearly of what happened. The Court of Appeal of Tanzania in Ndalahwa Shilanga & Another vs Republic (Criminal Appeal 247 of 2008) [2011] TZCA 159 while referring the holding in Tuwamoi's case had this to say; "So, TUWAMOI's case clearly distinguishes between admissibility o f a confession, and the weight to be attached to that confession. That case and all the other cases following it, do not establish a rule that once admitted, a confession must lead to a conviction. The court "might only found" a conviction, depending on its analysis o f all the Page 11 of 18 circumstances o f the case, and upon reaching a conclusion that the confession must be true." In the circumstance of the case at hand, it is my settled view that, in order to determine if the appellant's confession was true, it was necessary to assess if there is other corroborative evidence supporting the confession. Turning to other evidence, we have the testimony of PW1, PW2, PW3, PW4 and PW5. For purpose of clarity the victim's testimony is hereunder reproduced; 7 stay with my mother and brothers. We have our neighbours. I was going to call Sunday my brother. On my way I met Mohamed, an accused. He took me to the house while wrapping my mouth. He then undressed me and himself. Then "aiiniingiza lidudu lake huku"he then ran away when he saw mama Kaju na Bibi. Then took me to my mother. Mama took me inside then he told me we go to the station, here at Kiteto. Then we went to hospital." The above was the sole testimony of the victim in which she claimed that she was penetrated by the appellant as she said "aliniingizia lidudu lake huku". This statement was considered by the trial court as evidence proving that the victim was sexually abused. In my view, such statement and the Page 12 of 18 victim's evidence in totality could not stand to prove penetration or even corroborate the appellant's confession. Despite of being ambiguous and not describing the part of the body to which the so called 'lidudu' was inserted. Apart from the victim's account that she was penetrated by the appellant, no witnesses who saw them directly having sex. PW2 claimed to have seen the appellant running from unfinished house leaving behind the child and they took her to her mother, and she also said that, she was accompanied by PW5. The said PW5 never mentioned if the person she saw was the appellant. PW3 is the victim's mother who claimed that after the victim was sent to her, she examined her and discovered that she had enlarged private part not normal for a child. When she sent the victim to hospital, she was informed by the doctor that the victim was not virgin. In his evidence and the PF.3, the doctor claimed that the victim had no bruises as her labia majora and labia minora were normal and no sperms were found. But she had no hymen (not virgin) and her vaginal orifice was widened which he considered as penetration indicators. In his opinion, there was evidence of penetration since the hymen and vaginal orifice were disturbed showing that the victim was penetrated by a blunt object. Page 13 of 18 I have assessed such evidence in comparing with other prosecution evidence and I was unable to link the incident with the doctor's observation during victim's examination. The evidence revels that the victim was a child aged 8 years at the time of the incident while the appellant was aged 25 years. The evidence also shows that the victim was sent to the hospital immediately after the incident. The doctor did not state in his evidence the probable time of the incident based on his examination to the victim. I asked myself if such evidence gives a clear determination on whether the victim lost her virginity on that day or other different day. I also considered the age of the victim and the age of the appellant and find it hard to believe that what was observed during examination will lead to a conclusion that a penis of a man aged 25 raptured the hymen of a child aged 8 without disturbing labia majora and labia minora or without any other signs like blood coming after a raptured hymen. This is what is suggested by the prosecution evidence which in my view, it is not convincing unless, there is good expert clarification on that issue which, the doctor never gave in his testimony. Since the incident took place two to three hours back, it was expected for the doctor to explain if his observation could lead to a conclusion that the victim's hymen was raptured on that day. One may think that maybe she Page 14 of 18 was penetrated by a finger but, her evidence was clear that she was penetrated by 'lidudu' which the trial court considered as a penis, and which, I also do. With such evidence, I am convinced that there were doubts as to whether the victim was penetrated on the material date of incident let alone, by the appellant. The available evidence could not be safely relied upon to corroborate the cautioned statement and conclude that the appellant raped the victim. My conclusion on this point is with considering the evidence of identification as well. It was alleged that the incident took place at night and nothing shows that the witnesses identified the appellant. Although the charge sheet laid against the appellant does not state the time when the offence was committed, item 4 of the facts read to the appellant shows that the offence was committed on 04/06/2023 during night hours. The evidence of PW2 shows that the incident took place at 07:00hrs and the evidence in totality, shows that soon after the incident, the victim was sent to hospital and attended by the doctor who is PW4 at 09: OOhrs meaning it was night hours. Such evidence suggest that the incident took place at night hours around 07:00pm. The question is whether there was proper identification of the culprit. Page 15 of 18 Both, the victim and PW2 claimed to know the appellant as their neighbour. They however did not state if at the time of the incident it was already dark or not and if the surrounding environment could eliminate any mistake in identification. There is a plethora of decisions of the Court of Appeal that evidence of identification should not be relied upon unless the court is satisfied that the evidence is watertight and all possibilities of mistaken identity are eliminated. See; Waziri Amani vs Republic [1980] TLR 250, Emmanuel Luka and Others vs Republic, Criminal Appeal No. 325 of 2010 and Omari Iddi Mbezi and 3 Others vs Republic, Criminal Appeal No. 227 of 2009 and Taiko Lengei vs Republic, Criminal Appeal No. 131 of 2014 (both unreported). In the case of Waziri Amani vs Republic (supra), the Court of Appeal laid down guidelines for consideration in establishing whether the evidence of identification is impeccable. The court has to test the following; i. The time the culprit was under the witness observation; ii. Witness's proximity to the culprit when the observation was made, the duration the offence was committed, Hi. I f the offence was committed in the night time, sufficiency o f the lighting to facilitate positive identification, Page 16 of 18 I iv. Whether the witness knew or had seen the culprit before the incident and description o f the culprit. v. Furthermore, mention o f the culprit's peculiar features to the next person the witness comes across after the incident further solidifies the evidence on identification o f the culprit, especially when repeated at his first report to the police officer who interrogates him. Applying the above holding to the case at hand, this court is of the view that, in the light of the evidence adduced by the prosecution witnesses, there is nothing to substantiate correct identification of the appellant. PW1, PW2 and PW5 who claimed to see the appellant never accounted the circumstance which favoured correct identification. PW5 only agreed that the appellant was his grandson but never mentioned to have seen him at the scene. In her evidence, she claimed to have seen someone entering unfinished house with a child but never mentioned if it was the appellant. In Ndalahwa Shilanga (supra) the Court of Appeal observed that, the only evidence against the appellant was his confession which, although admitted without objection, ought to be treated with circumspection, and in the peculiar circumstances of their case, they thought that there ought to be some corroboration. I have found akin situation to the matter at hand in Page 17 of 18 which, although the appellant's cautioned statement was admitted without objection, it needed corroboration of other strong evidence but, I could find none. The prosecution evidence was not strong to corroborate the appellant's confession thus, I subscribe to the position of the Court of Appeal that the appellant's conviction was not safe. I therefore find merit on the 1st and 2nd grounds of appeal that the offence was not proved beyond reasonable doubt. Having concluded that the offence was not proved beyond reasonable doubt, I see no reason to dwell into the third ground related to the appellant's rights during interrogation for, it becomes obsolete. In concluding, I allow the appeal by quashing and setting aside the conviction and sentence passed against the appellant. The appellant shall be released immediately from prison, unless lawful held for any other cause. DATED at BABATI this 21st day of November, 2024. Page 18 of 18