NASSORO SAAD AHMED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUBREGISTRY) AT ARUSHA CRIMINAL APPEAL NO. 124 OP 2023 (OrtOinatinQ from Criminal Cacv No. 77 of 2023 District Court of Anrafw) NASSORO SAADI AHMED.......................................... APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT JUDGMENT 22/05/2024 & 17/07/2024 KIWONDE, J.: The appellant, Nassoro Saadi Ahmed was charged with an offence of grave sexual abuse contrary to section 138C (l)(d) and (2)(b) of the Penal Code, Cap 16 (R. E 2022). The particulars of the offence were that the appellant, on diverse dates between 1st January and 4th May 2023 at Ngarenaro area within the City and Region of Arusha, for sexual gratification, did use his finger and piece of stick and inserted into the vagina of 'HMS', a girl of three (3) years old without her consent. When the appellant was arraigned before the District Court of Arusha, he pleaded not guilty. The prosecution paraded three (3) witnesses and the appellant defended himself. After a full trial, he was convicted and sentenced to serve imprisonment in jail for a term of 20 years and to pay compensation to the victim at the tune of TZS 1,000,000/=. The appellant was aggrieved by the decision of the trial court and has appealed to this court against both conviction and sentence meted out against him. He has filed a petition of appeal containing four (4) grounds of appeal to wit: 1. That the trial court erred in law and facts when it convicted and sentenced the appellant while the case was not proved beyond reasonable doubts. 2. That the trial court erred in law and facts by shifting the burden of proof to the appellant. 3. That, the trial court erred in law and facts by convicting and sentencing the appellant without giving reasons for his conviction. 4. That the trial court erred in law and in facts by failing to analyse the evidence tendered in court. The appellant asked this court to allow this appeal, quash and set aside conviction and sentence of the trial court and release him. On 22~ May 2024, It was agreed by the counsel for the appellant and the State Attorney for the Republic and ordered by the court that the appeal be argued by way of filing written submissions and both sides filed them. From the petition of appeal, trial court records and the written submissions, the main issue for determination is whether this appeal has merits or otherwise. To begin with the first and fourth grounds of appeal which were argued together, the appellant submitted that the trial court erred in law and fact when it convicted and sentenced him while the case was not proved beyond reasonable doubts and that the trial Magistrate failed to properly analyse and evaluate evidence on records. The reasons for so saying are that the prosecution evidence has material contradictions. The evidence of PW1 and PW3 differ and contradicts. I concur with the counsel for the appellant that the prosecution is duty bound to prove a criminal case against the accused person beyond all reasonable doubts. To constitute an offence of grave sexual abuse under crv-ttrw, 3flc (l)(d) or the p^i Code _ (R- E 2022), it must be nrovwi h by evidence that the aca^/ appellant, fo. dW an «t w a any other Mrt « human 0, Qr *e body of another person, being an act which does not amount to rape and with or without consent of a person who is under the age of 18 years. In this appeal, the evidence of PW3, the medical doctor, is not credible and it is untrustworthy. Its veracity is questionable. This is because of his lies. When he was testifying before the trial court, he said he examined the victim on 4/5/2023 and filled in the PF3 on the same date. Even the document, exhibit Pl bears the date 4/5/2023. Whereas, PW1, said it was on this date when she discovered that the victim had some pains on her vagina while washing her. According to PW1, she sent the child victim to her grandmother for examining her, then the following day, that is, On 5/5/2023, she sent her to Toto Care Hospital where she was advised to obtain a PF3 from the police station. The witness said the following day, to mean on 6/5/2023, she went to police station and obtained the document (PF3) and the following day, that Is on 7/5/2023, she sent the victim Mount Meru Hospital for medical examination. So, it Is apparent the witness, PW3 examined the child on this date (07/05/2023) and the PF3 would have been filled In on this day or the day after. Had the trial Magistrate evaluated and properly analysed this evidence, she would have reached to a conclusion that the evidence of PW3 was not reliable and refuse to rely on it. The respondent, in reply to the submissions in-chief said the contradictions are minor. It is my firm stand position that the circumstances of this case are different from the cited case laws induding that of Dickson Elia Nsamba Shapwata Versus Republic, Criminal Appeal No. 92 of 2007. In this appeal, the lies of PW3 cannot be cured in anyway. Having discredited the evidence of PW3, also, the evidence of PW1 is purely hearsay as to who perpetrated the unlawful act. This witness said she was merely told by the victim that it is the appellant who did so to the victim. In law, the hearsay evidence is generally inadmissible unless it falls among the exceptions, which is not the case here. Therefore, even this piece of evidence did not prove who actually perpetrated the act to the victim. »• ™(3) 333”a victim. However cnru • । ' Ch evidence must be sufficient enough to prove beyond reasonable doubts. The witness (PW2) said the appellant inserted his fingers and a stick into her vagina. However, there is no evidence to prove that the appellant did so for sexual gratification. The witness did not tell the trial court to that effect. This is an important ingredient of the offence of grave sexual abuse. The prosecution had a duty to lead the witness to specify if the act was meant for sexual gratification. Short of that, the offence is regarded not established. For that matter, it is clear that the prosecution case was not proved beyond reasonable doubts. Had the trial magistrate properly analysed the evidence, she would not convict and sentence the appellant. The first and fourth grounds of appeal are merited and they are allowed. These grounds of appeal suffice to dispose of the appeal. Thus, there is no need to go on determining the rest of the grounds of appeal. #»=PMtallwaThe is quashed, the order of Action derOf co ■ “the and sentence meted out on urt appellant are set aside h • u hereby ordered that the appellant be re'“M ■»»" onto h. held ,o, cause. Dated at Arusha this 17th July 2024. F. H. KIWONDE JUDGE 17/07/ 2024