Shedrack Jacob Nyagawa vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA CRIMINAL APPEAL NO. 27823 OF 2024 (Original Criminal Case No. 8428/2024 of the District Court ofIringa before Hon. A.F. Ngwaya, SRM) SHEDRACK JACOB NYAGAWA ..... ......... .............. . APPELLANT VERSUS THE REPUBLIC .................... .............. ......................... RESPONDENT JUDGMENT 2^' Oct, 2024 & 2СП Jan, 2025 D.B. NDUNGURU. J The appellant, Shedrack Jacob Nyagawa was tried and convicted by the District Court of Iringa at Iringa (trial court) of the offence of Grave Sexual Abuse contrary to section 1.38C (l)(d) and (2)(b) of the Penal Code [Cap. 16 R.E 2022]. He was sentenced to serve 20 years imprisonment. According to the particulars of the offence, on 5th January 2Q24 at Mtwivila area within the district and; region of Iringa, for sexual gratification, the appellant put his penis on the buttocks of RM (name withheld) a child aged seven (7) years. The prosecution case was based on the evidence adduced by five witnesses including the victim. It was PWl's evidence that on the fateful day at about 22:00 hours, she found the appellant sleeping close to the і victim with his penis placed on the victim's buttocks with his sperms on the victim's buttocks and on the bed sheets. The victim was sleeping together with her sibling. According to PW1, the appellant had undressed the victim. She then called the local government leader (PW4) who also called the Ward Police Officer (PW3). PW1 testified further that she was issued with PF3 for medical examination. The appellant was then taken to the police station. According to the victim (PW2), while asleep the appellant undressed both her and her sibling. She testified that she did not know what the appellant was doing in the room but he had slept in their room. PW3 testified that he found the appellant sleeping holding the victim with his penis put on the victim's buttocks. He took a photo of the scene and the appellant was then woken up. On his part, PW4 testified to have seen the appellant sleeping half naked in the girl's room. PW5 was the investigator of the case, he only testified that in his investigation he discovered that the appellant committed the offence charged with. The trial court was satisfied that the prosecution had proved the charge against the appellant beyond reasonable doubt, thus, convicted and sentenced him accordingly as stated above. Aggrieved, he has appealed to this court based on six grounds. The main complaint is that the offence 2 was not proved beyond reasonable doubts because: one, the victim was not credible and her testimony was recorded contrary to section 127(2) of the Evidence Act [Cap.6 R.E 2022]. Two, contradictions in the prosecution evidence on how the appellant was found, three, failure to call a material witness (victim's sibling) who was sleeping together with the victim. Lastly, the appellant's defence was not considered. At the hearing of the appeal, the appellant appeared in person unrepresented whereas the respondent was represented by Mr. Burton Mayage, learned State Attorney. The appellant adopted his grounds Of appeal and preferred the State Attorney to begin. He reserved his right to make rejoinder should the need arise. The learned State Attorney from the outset informed the court that he resists the appeal. On the first complaint, he argued that section 127(2) of the Evidence Act was complied with as the victim promised to tell the truth. He argued further that due to amendment of the Evidence Act by the Legal Sector Miscellaneous Amendment Act, Act No. 11 of 2023, failure to comply with section 127(2) of the Evidence Act shall not render the evidence of a child of tender age inadmissible. To support his argument, he з cited the case of George Jonas Lesilwa y. Republic, Criminal Appeal No. 374 of 2020, Court of Appeal Moshi (unreported). Regarding the 2nd complaint, he argued that the victim was asleep when the appellant committed the charged offence, thus, the victim was not in the position to know what transpired. It is the mother of the victim (PW1) who witnessed the act. On the complaint that there is contradiction on where the appellant was found, Mr. Mayage contended that there is no contradiction as the testimony of PW1 was clear that she found the appellant sleeping aside the victim while naked and had ejaculated. This was also supported by PW3 and PW4 who testified that they found the appellant had put his penis on the buttocks of the victim and had ejaculated. As to the complaint that a material witness was not called to testify, the learned State Attorney pointed out that there is no specific number of witnesses required to prove a fact what matters is the quality of evidence and that the uncalled witness would have repeated the fact that the victim and her were asleep. See section 143 of the Evidence Act and Yohanes Msigwa V Republic [1990] TLR 48. Again, on the complaint that the appellant's defence was not considered, he argued that the trial magistrate 4 fully analyzed the appellant's defence of intoxication at page 5-6 of the typed judgment. Lastly, the learned State Attorney submitted that the charge against the appellant was proved beyond reasonable doubt as all elements of the charge were proved. The prosecution proved that the appellant used his penis for sexual gratification. After all, he added the appellant had not denied being found sleeping naked aside the victim to the extent Of ejaculating. He referred the court to the case of Ibrahim Ally Mwadau v. Republic, Criminal Appeal No. 11 of 2018, Court of Appeal - Dar es Salaam. The appellant in his rejoinder insisted that his grounds of appeal be considered. In his view, he could not have elected his penis and finally ejaculate while he was asleep. He prayed his defence of intoxication be considered. The issue for my determination at this point is whether the charge against the appellant was proved beyond reasonable doubts. In determining this issue, first I need to consider the elements of the offence 5 of grave sexual abuse with which the appellant was charged. Section 138 C (l)(a) which establishes the charge reads as follows: 138C.-(1) "Any person who, for sexual gratification, does any act, by the use of his genital or any other part of the human body or 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 abuse if he does so in circumstances falling under any of the following descriptions, that is to say- fa) without the consent of the other person; From the above provision, the prosecution was required to prove the use of any part of the human body for sexual gratification since the victim is below the age of eighteen years, consent is immaterial. In the case at hand, the victim's evidence cannot be of help as she was asleep, therefore, in my view, she was not in the position to apprehend what was happening. Material evidence came from PW1 who is the mother of the victim who found the appellants penis placed on the victim's buttocks. Part of her evidence is as follows: є "Children were sleeping Naomi was also sleeping. The accused was nacked [sic] closure [sic] to .... buttocks with his sperms on the child's buttocks and on the bed sheets." On the other hand, PW3, a police officer who was also among the witnesses that went to the crime scene was recorded testifying that: - "I was sent to the room I found the accused person sleeping hold [sic] a gid his trouser undressed it was a white trouser with black belt, his penis [sic] put on the buttocks of the gid. I took a photo, and then I told them to take girls to social welfare office." PW4, the street chairperson who also witnessed the appellant at the crime scene testified: T saw Shadrack Nyagawa in the girls' room his trouser was half naked... I was called a [sic] the police station to give my statements girls and the accused both were sleeping were waked upT In my view, from the above excerpts there is variation in material facts from the prosecution witnesses. PW1. stated that the appellant was naked close to the victim who was also undressed with the appellant's 7 penis placed on the victim's buttocks with his sperms on the victim's buttocks and bedsheets. PW3 on the other hand only stated that the appellant's penis was placed on the victim's buttocks, where she took a photo of the whole incident, unfortunately such photo was not tendered in court by the said witness. PW4 only stated that he saw the appellant in the girls' room with his trousers half naked and that he was sleeping. All the witnesses above gave a description of the crime scene they witnessed, they are not expected to differ materially in their testimonies. While failure of one witness to state a fact said by another witness is not a contradiction, the gaps which relates to a material fact in their testimonies can create a doubt on their reliability and truthfulness. PW3 and PW4 did not testify on finding sperms on the victim's buttocks and bed sheets as testified by PW1. Again, PW4 only testified that the appellant was half naked sleeping in the girl's room but did not testify on the appellant's penis being on the victim's buttocks. It is trite law that doubts in the prosecution case have to be resolved in favor of the accused person. I therefore hold that the charge against the appellant was not proved beyond reasonable doubts. 8 In the event, I allow the appeal. The appellant's conviction and sentence are quashed and set aside. The appellant should be set at liberty unless held for another lawful cause. D.B. NDUNGURU JUDGE 20/1/2025 9