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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO. 23013 OF 2024 (Originating from the District Court of Rungwe at Tukuyu in Criminal Case No. 930 of 2024) ANGABILE MWASEBA……………...………..…………........APPELANT VERSUS THE REPUBLIC…...…………………………………….…. RESPONDENT JUDGMENT Date: 2 October 2024 & 12 November 2024 SINDA, J.: The appellant was charged and convicted of the offence of grave sexual abuse contrary to section 138C (1) (d) and 2 (b) of the Penal Code, Cap 16 R.E 2022 (the Penal Code). The District Court of Rungwe at Tukuyu (the Trial Court) convicted the appellant and sentenced him to nine (9) and half years imprisonment. 1 It was alleged that the appellant on 27 December 2023 at Lupata Village within Rungwe District in Mbeya Region for sexual gratification, did use hands of a girl aged two years (the Victim) to hold his penis. It was the prosecution evidence that on the material day Nia Mwaijande (PW2), while passing at the house of Maisha Mwandunga, found the appellant siting in the long chair with his clothes off while the Victim standing between his laps. PW2 saw the Victim bending down touching the private parts of the appellant. PW2 made an alarm and the appellant was arrested. The appellant during defence prayed the trial court to set him free. At the end of hearing the Trial Court found that the prosecution proved their case to the required standard. The appellant challenges his conviction and the corresponding sentence on the following grounds as follows: 1. That, the trial court erred in law point and fact by convicting and sentencing the appellant despite the fact that the prosecution side failed completely to prove its charge against the appellant beyond reasonable doubt as the mandatory requirement of the law. 2. That, the trial court erred in both law and fact to convict and sentence the appellant without medical test conducted for the appellant to prove that the sperms where his. 2 3. That, the trial Magistrate erred in law and fact to convict and sentencing the appellant relaying on mere stories from PW2 and PW3. 4. That, the trial court erred in both law and fact to believe all witness from prosecution side without sufficient evidence. 5. That, the trial court erred in law point and fact by convicting and sentencing the appellant relying on a mere suspicion. At the hearing of the appeal, the appellant appeared in person, unrepresented. The respondent was represented by Mr. Salmin Zuberi, learned State Attorney. The appellant read his grounds of appeal and prayed the Court to consider his grounds in the petition of appeal as presented in the Court and set him free. Mr. Salmin first submitted on ground number two that it is not the requirement of the law to conduct a medical examination on the appellant to prove that the sperms where his in order to prove the offence of grave sexual abuse contrary to section 138 (C) (1) (d) and 2 (b) of the Penal Code and prayed the ground to be dismissed. Submitting on the third ground of appeal, he argued that page 11 of the typed proceedings of the Trial Court (the Proceedings) shows that PW2 3 informed the Trial Court that she saw the appellant with a child and he gave his penis to the child to touch it. That, PW2 made noises and the appellant was caught ready handed with his penis outside. He added that during cross examination on page 12 of the Proceedings, the appellant asked three questions which did not shake the testimony of PW2. He further submitted that on page 13 of the Proceedings the Trial Court proved through section 127 (1) of the Evidence Act, that the Victim was young and couldn’t speak and respond to the questions asked. Therefore, she couldn’t provide her evidence. He prayed for the third ground to be dismissed. Mr. Salmin prayed to argue grounds number one, four and five together that the charge was not proved beyond reasonable doubt as required by the law. He submitted that on page 3 at paragraph 4 of the judgement of the Trial Court (the Judgement), stated that in order to prove the offence of grave sexual abuse, the court is required to prove the following ingredients, whether the appellant committed the offence for his own satisfaction, the appellant committed the crime through his genital organs or any part of his body, and the act is not defined as rape under the law. He continued that in proving the ingredients, PW2 on page 11 of the Proceedings told the court that he saw the appellant removing his penis 4 and giving it to a child of three years to touch it with her hands for his own satisfaction. That, because the child was three years old there was no need to prove consent. Therefore PW2, was enough to prove the offence of grave sexual abuse. He further contended that Mbalipo Ijande (PW1), the mother of the child informed the Trial Court that the age of the child was three years old on page 10 of the Proceedings. In addition, he stated that after PW1 and PW2 provided their testimony, the appellant failed to cross examine them. He referred to the case Nyerere Nyabue vs. R, Criminal Appeal No. 67 of 2010 to support his argument. He maintained that PW1 and PW2 where sufficient to prove the offence and convict the appellant. He prayed the grounds be dismissed and the decision of the trial court be upheld. In rejoinder the appellant insisted that he did not commit offence and prayed the court to set him free. I have considered the Trial Court’s records and the parties' arguments. I will start with the appellant complaint that the prosecution did not prove the case beyond reasonable doubt. It is a position of law that the burden of proof in criminal case lies on prosecution side and the standard of proof is beyond a reasonable doubt as emphasized in the case of Mohamed Haruna @ Mtupeni & Another 5 vs. R, Criminal Appeal No. 25 of 2007 (unreported) where it was held that: "Of course, in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness of his defence.” Also, it is a settled position of law the first appellate court is in form of re hearing and has duty to re evaluate and come with its finding if it necessary. This was stated in the case of Kaimu Said vs. Republic, Criminal Appeal No 391 of 2019. Discussing the above issue on whether this case was proved to the required standard at the Trial Court, this court being the first appellate court wish to re-evaluate evidence on record afresh. At the the Trial Court, the appellant was charged with offence of grave sextual abuse contrary to section 138C (1) (d) and (2) (b) of the Penal Code which reads as follows: "Any person who, for sexual gratification, does any act, by the use of his genital or any other part of the human body of any instrument or any orifice or part of the body of another person, being an act which does not amount to rape under section 130, commits the offence of grave sexual 6 abuse if he does so in circumstances falling under any of the following descriptions, that is to say- (d) with or without the consent of a person who is under the age of eighteen years. (2) Any person who- (b) commits grave sexual abuse on any person under eighteen years of age, is liable on conviction to imprisonment for a term of not less than twenty years and not exceeding thirty years, and shall also be ordered to pay compensation of amount determined by the court to any person in respect of whom the offence was committed for injuries caused to that person. " The Court of Appeal (the CAT) has on several occasions interrogated these provisions. In Kassimu Said vs. Republic, Criminal Appeal No. 179 of 2016, the CAT stated that: “From the foregoing extracted provision, it is discernible that for a statement of offence to have been properly constituted under the obtaining details at hand, the same ought to have contained reference to the provisions of section 138C (1)(a) as well as subsection (2) (b) of the referred section. Likewise, the particulars of the offence ought to have alleged that the wrongful act was done "for sexual gratification" as well as that the same was perpetuated "without the consent of the other person." Such requirements were not met and the vexing issue is as to what is to be tied to the referred shortcomings.” 7 In the above case the CAT stated that, the failure to particularize the two essential ingredients in the charge sheet is fatal and incurable. Equally, related to this matter is the case of Andrew Lonjine vs. R, Criminal Appeal No. 50 Of 2019. As in Kassimu Said (supra), the CAT proceeded that: “Statement of the offence appearing on page 1 of the record, is defective in so far as it cited only section 138C (1) and (2) (b) of the Penal Court without mentioning a specific paragraph (a), (b) or (c) of section 138C (1) for which the appellant was charged with. By failing to cite any of paragraphs (a), or (b) or (c) together with section 138C (1) made the Statement of Offence incomplete for want of important element of "lack of consent" which features under these three paragraphs.” In additional advanced that: Juxtaposing the above particulars of offence of grave sexual abuse with the provisions of section 138C (1)(a), (b), (c) cited earlier, we can unhesitatingly say that while the element of "inserting fingers into the vagina" is disclosed by the Particulars of Offence, the other ingredients of "for sexual gratification" and "lack of consent" are missing out from the particulars of the offence under section 138C 8 of the Penal Code. Because essential ingredients "for sexual gratification" and "lack of consent" were not included in the Particulars of Offence of grave sexual abuse, no evidence was led by the prosecution to prove these two 6 ingredients. Therefore, the prosecution cannot be taken to have proved the offence of grave sexual abuse beyond reasonable when essential ingredients of "for sexual gratification" and "lack of consent" were neither included in the Particulars of Offence nor was evidence presented to prove these ingredients. The instant case suffers a more or less similar problem. The charge sheet contains the following statement and particulars: “STATEMENT OF OFFENCE Grave sexual abuse: Contrary to section 138C (1)(d) and 2(b) of the Penal Code Cap 16 R.E 2002. PARTICULARS OF THE OFFENCE ANGABILE S/O MWASEBA on 27th day of December, 2023 at Lupata village within the Rungwe District in Mbeya Region, for sexual gratification, did use hands of MS a child of two years to hold his penis”. 9 As seen from the particulars of offence, the element of consent is omitted. Therefore, going by the above authorities, it is fatally defective. I do not see the need to discuss the other grounds of appeal because the irregularity is very clear. I allow the appeal. The appellant be discharged from custody unless he is otherwise lawfully held. Right to appeal is explained. DATED at MBEYA on this 12 day of November 2024. A. A. SINDA JUDGE 10