MOHAMED HUSSEIN VERSUS REPUBLIC

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA CRIMINAL APPEAL NO 19643 OF 2024 (Arising from a decision in Criminal Case No 40800 of 2023 Kondoa District Court) BETWEEN MOHAMED HUSSEN ………………………….………..…..……….…………APPELLANT AND REPUBLIC……………………………………………..……..……..………..RESPONDENT JUDGMENT Date of last order: 06/11/ 2024 Date of Judgment: 20/ 11/ 2024 LONGOPA, J.: The accused person one MOHAMMED HUSSEN stood charged, convicted and sentenced on two counts of impregnating a school girl contrary to section 60A (3) of the Education Act, Cap 353 as amended by the Written Laws (Miscellaneous Amendment) (No.2) Act of 2016 and rape c/s 131 (1), (2) (e) and 131 (1) of the Penal Code, Cap 16. R.E 2022. It is alleged that the gist of this discourse hinges on the fact that the accused person between 2020 and 2021 was the victim's father (PW 1), 1|Page tenant. It is in the same place the victim was living with her parents. On 5th October, 2021 the victim's headteacher (PW.4) called the victim's father PW 1 and informed him that his daughter was not attending the school. By that time PW 1 was in Dodoma with his activities. As he got that call from PW.4 was shocked and decided to call Pascale who was at home and asked where was the victim. He was told by his brother Pascale that she was not at home, has just left home with her friend lady. It was stated that the victim’s young sister and Pascale accompanied a militiaman followed where the victim went, on arrival found the door closed, knocked and the guy opened the door and run away. The victim was taken to Police station where she was interrogated and given a PF.3 which she used at Kondoa Hospital. At the hospital, the victim was attended by PW.3 one Dr. Jumanne Iboni who examined the victim and found 20 weeks pregnant. In course of questioning the victim to name a person responsible for pregnancy, it was the accused person who was found at the scene of crime named, arrested and upon interrogation at police, he confessed that he was responsible to the victims pregnant. Upon 2|Page conclusion of hearing of the case, the appellant was convicted and sentenced to serve three years for the offence of impregnating school girl and 30 years for offence of rape running concurrently. The appellant was seriously aggrieved by the whole decision namely conviction and sentence of the District Court of Kondoa before Hon F.A Kahamba SRM, thus on 20th June 2024 he preferred this appeal on the following grounds, namely: 1. That the District Court erred in law and fact by convicting the appellant without considering the fact that Appellant was insanity. 2. That the court erred in law and fact by convicting the appellant basing on procedural irregularities. 3. That the District Court erred in law and fact by denying the appellant right to be heard. 4. That the District Court erred in law and fact by convicting appellant while there was contradiction of prosecution witness. 3|Page It was on strengths of these grounds that appellant implored this court to allow the appeal by quashing the conviction and setting aside the sentence. On 6th day of November 2024 as the date set for oral hearing of the appeal, the appellant was present enjoying the legal services of Ms. Aisha Kijuu, learned advocate and the respondent were represented by Ms. Sara Anesius and Victoria Njau, both learned State Attorneys. Aisha Kijuu, learned advocate informed the court that there were four grounds of appeal but the appellant argued on three grounds, namely the 1st, 2nd and 4th grounds of appeal. In respect of 2nd ground relating to procedural irregularities, it was submitted that there are several irregularities. First, court failed to state the offence and the section of Penal Code or the law contravened c/s to section 312(2) of the Criminal Procedure Act Cap. 20 RE 2022 which require that when there is conviction the offence and the law contravened must be stated. The words used are “shall” which is compulsory in nature. 4|Page That is lacking on page 11 of the Judgment of trial court the offence and law were not mentioned thus leading the Judgment to be illegal. In Fadhili Iman Makaoroboi vs Republic, Criminal Appeal No. 77/2019 HCT that stated at pp 9-10, where it was stated that on conviction the conviction must specify the offence and the law this making the incurably defective and the judgment become nullity. It was submitted that the proceedings conviction and sentence be nullified and appeal be allowed. Also, the appellant was charged and convicted on non-existing law- rape c/s 130(1), (2)(e) of the Penal Code that was not existing. The court proceeded with hearing of the matter while the same was defective as there is no such provision in the Penal Code, page 2 of the judgment reveals the same mistake and in the proceedings at page 5 when counted. It was argued that such failure leads to nullity of the whole proceedings as stated in the case of Nazareno Kihaga vs Republic, Criminal Appeal No. 12/2012, CAT at page 6 – conviction on wrong provision of the law or no-existing law effect. 5|Page Trial Court erred in using defective charge thus it is our prayer that the proceedings, conviction and sentence be quashed. Third irregularity is lack of mitigation on part of the accused contrary to the requirements of the law. The sentence would have been the reduced as the offenders stated to be sick and was the first offender as revealed in page 24 of the availed such opportunity thus, we pray that this appeal be allowed. This was illustrated in names Myombe Mtalauda vs Republic, Criminal Appeal No. 1 of 2018, CAT at page 11 (TANZLII). The failure to consider the mitigation the appellate court can reduce the sentence. In the instant appeal, there was no affording such right at all thus the sentence is a nullity which ought to be set aside by his court. On the 4th ground on contradictory of prosecution witnesses, it was submitted that there was substantial contradiction on the prosecution evidence. PW 1 at page 8, stated that 05/10/2021 got information that the victim never attended school. PW 2 stated at page 11 of the proceedings stated that it was on 08/10/2021 when she was taken to the medical doctor. PW 3 stated that at page 13 to have received victim on 06/10/2021 when he discovered that victim was pregnant. PW 4 at page 14 stated that 6|Page it was on 05/10/2021 that the victim was not school. The difference of dates brings doubts. It was appellant’s submission that the evidence was fabricated as there is differences thus contradictory. The evidence of PW 4 at page 14 where she stated the victim was a form two student. There is difference between 2021 or 2022. The contradiction was so obvious that left a lot of doubts regarding the offence being committed. Further, PW 2 stated to have been found with another man and they were taken to police while PW 1 sated that the man ran away. Also, PW 6 evidence regarding DNA at page 21, did not state or produce evidence thus created doubt. In the circumstances, the evidence of PW 6 was not sufficient to warrant conviction. It was the appellant’s prayer that this was a serious error on part of trial court to convict. The 1st ground of appeal relating to insanity, it was submitted that defence of insanity was raised by the appellant during defence. It was not raised during plea. According to the appellant, the court can make inquiry on insanity at certain circumstances during trial. The application of section 7|Page 220 is when the court is of the view that insanity may be an issue. During defence at page 24 the appellant produced the exhibits to show that he had mental issue. The court did not satisfy itself thus trial court had conducted the trial while the appellant was insane. It was appellant’s prayer that this appeal be allowed, the conviction and sentence be set aside. In conclusion, it was the appellant’s prayer that defects shown in the judgment are sufficient to allow the appeal as they are not curable under section 388 of the Criminal Procedure Act, Cap. 20 RE 2022. Thus, the appellant prayed for this court to allow the appeal. On the other hand, Ms. Sara Anesius, learned State Attorney stated that the respondent was objecting the appeal and support the conviction and sentence by trial court. With regard to irregularities, it was submitted that the judgment indicates that on page 11 the court found the accused guilty and convicted for both offences but the sections were not mentioned. It was the respondent’s view that the omission is not fatal as it is curable under 8|Page section 388 of the Criminal Procedure Act, Cap. 20 RE 2022. This is the first appellate court with all the powers to correct the anomaly which was committed by the lower court. It is the respondent’s view and submission that the defect is curable as there are various cases which treated the same as curable. The case of Emmanuel Noa and 2 others, Criminal Appeal No. 361/2016, CAT at page 7-12, analysis was done and concluded that the offender be convicted properly at the court that heard the matter. On wrong or non-citation of the law, it was submitted that the learned advocate has misled herself as the provision are there. It is not fatal as the offender understood the contents of the charge. The particulars were disclosed properly in the charge. In Jamal Ally @ Salu vs Republic, Criminal Appeal No. 52 of 2017, CAT at page 15 – 18, the court elaborated on the citation is not fatal. On absence of mitigation, respondent stated that such mitigations are always found in the original file regarding mitigation is not a problem. The mitigation assists the court to give the appropriate penalty where there in discretion to give alternative or lesser sentence. Rape has only one 9|Page sentence not below 30 years and the court sentenced to that minimum sentence. As such, it was argued that the omission to stated about mitigation if any, the same was not fatal at all as the appellant was availed the opportunity. Furthermore, Victoria Njau, learned State Attorney added with respect to the 4th ground relating to contradiction that nothing had impact going to the root of the case as the appellant did not deny about the pregnancy. The respondent cited a principle in Evarist Kachembelo and Others Vs Republic [1978] LRT 70 the court stated that human mind is not inflexible. Additionally, PW 4 tendered the admission book and the Attendance Register as Exhibit P 2 and Exhibit P 3. These exhibits were not objected, and both revealed that the victim was a student. On PW 6 testimony, it was submitted that appellant was in court but did not cross examination which meant he accepted the truth stated in the evidence of the Government Chemist. The evidence that made the appellant to be convicted is that of PW 2 the victim, at pages 10-11 stated that she had sexual encounters with the appellant and it was several times. 10 | P a g e The appellant did not question anything on this evidence of the victim. It is law which is settled that failure to cross examine reasons acceptance of the truth. The respondent cited the case of Issa Hassan Uki vs Republic, Criminal Appeal No. 129/2017, CAT at page 17 to reiterate the emphasis on failure to cross examine. On the first ground, it was submitted that defence of insanity is raised at plea stage as per section 219 of the Criminal Procedure Act, Cap. 20 RE 2022. Section 220 empowers the court to inquire but there was nothing that the court noted regarding possibility of insanity thus the court proceeded to hear the matter. The appellant never informed the court on the insanity during the trial save for defence. It is an afterthought on the part of the appellant. In the circumstances, this ground has no merits thus it was respondent’s prayer that this appeal be dismissed, the court should confirm the conviction and sentence imposed by trial court. In rejoinder, the appellant reiterated that on contradiction and irregularity, it is settled law that burden of proof lies on the prosecution 11 | P a g e and it is beyond reasonable doubts. There were contradictions raising doubts thus there was no proof of the case beyond reasonable. The case of Mohamed Haruni and Another vs Republic, Criminal Appeal No. 259/2009, CAT at page 7, it was stated that burden is always on the prosecution. The accused is only convicted on strength of the prosecution case and not weaknesses of his defence. Accordingly, the prosecution failed to prove due to irregularities and contradictions in the trial court. Further, it was appellant’s rejoinder that the charge was defective, thus it was wrong as the provision was wrongly cited. Also, on mitigation, it was stated that the same ought to have been reflected in the judgment while passing sentence but the same are not there thus it could be concluded that there was no mitigation. Moreover, it was stated that evidence of the expert (PW 6) was not sufficient as he did not produce evidence. The DNA test formed part of the conviction. It was furthermore reiterated that the trial court miserably failed to accord the appellant opportunity to be subjected to medical examination at 12 | P a g e mental Health institution thus making the whole conviction and sentence a nullity. It was stated that such grounds of appeal warrant this court to allow the appeal for being meritorious thus setting aside both conviction and sentence. I have carefully followed up the rival arguments advanced by the parties to this appeal in order to ascertain validity of the appeal. I have dispassionately considered the arguments of both sides and the following is the analysis regarding the appeal. The first set of the grounds is on irregularities. There were mainly two aspects, namely: first, failure to state the provisions of the law contravened in the conviction thus violating provision of section 312(2) of the Criminal Act, Cap 20 R.E. 2022. Second, defective charge for the citation of non-existing law or wrong citation of the law. It is on record at page 11 of the Judgment that the trial court found the case against the appellant was proved beyond reasonable doubts thus the appellant guilty in both counts that he stood charged. It was at this juncture that trial court entered conviction on both counts. Indeed, the 13 | P a g e section of the Penal Code contravened was not stated. This was the basis of lamentation by the appellant. I have thoroughly considered this assertion on contravention of the law. There is contravention by failure to state the exact provision of the Penal Code or any other law contravened. However, the contravention is minor as I shall demonstrate. There is array of authorities on this matter. For instance, in the case of John s/o Charles vs Republic (Criminal Appeal 190 of 2011) [2014] TZCA 251 (16 June 2014), at page 4 the Court of Appeal stated that: It is clear that both provisions of the CPA require that in the case of a conviction, the conviction must be entered. It is not sufficient to find an accused guilty as charged; because the term "guilty as charged” is not in the statute; and the legislature may have a reason for not using that term; but instead, decided to use the word "convict". 14 | P a g e Further, in the case of Abdallah Ally vs Republic (Criminal Appeal 253 of 2013) [2015] TZCA 55 (16 July 2015), the Court of Appeal stated that: In terms of the clear, mandatory language used in sections 235(1) and 312(2), there is no valid judgment without a conviction having been entered, as it is one of the prerequisites of a valid judgment. In the case Shabani Hussein @ Makora & Another vs Republic (Criminal Appeal 287 of 2019) [2020] TZCA 1897 (16 December 2020) (TANZLII), at pages 11-12, the Court observed that: The reading together of sections 235 (1) and 312 (2) of the CPA clearly indicate that, the conviction must precede the sentence. In the case of JOHN s/o CHARLES vs. Republic, Criminal Appeal No. 190 of 2011, the Court emphasized on the essence of compliance with the mandatory requirements of sections 235(1) and 312 (2) the Criminal Procedure Act, having said: "It is dear that 15 | P a g e both the provisions of the CPA require that in the case of conviction, the conviction must be entered. It is not sufficient to find an accused guilty as charged; because the term guilty as charged is not in the statute; and the legislature may have a reason for not using that term, but instead, decided to use the word "Convict." In view of the settled position of the law, the omission is a fatal irregularity which can be remedied by returning the case file to the trial court for it to enter conviction on the other count of armed robbery. It is settled principle that under section 312 (2) and 235 of the Criminal Procedure Act, Cap 20 R.E. 2022 the most important aspect is that of conviction. In absence of conviction there cannot exist a judgment validly recognised by the law, thus the nullity. In the current appeal, explicitly the trial magistrate did convict the appellant. At page 11 of the judgment, trial court stated about three aspects. One, the court is fully satisfied that that prosecution has 16 | P a g e successfully proved their case beyond all reasonable doubt against the accused person. Two, it found that the accused person is guilty of in both counts he stood charged. Three, as conclusion therefore the accused was convicted on both counts, he stood charged. That being the case, it is settled and informed view that omission to cite the provision does not go to the root of the case as already in the appellant knew both counts, he faced throughout the trial and entered defence in respect of the same. Indeed, the judgment at pages 1 and 2 categorically restate the counts that the accused person stood charged and convicted thereof. Furthermore, in the case of Butongwa John vs Republic (Criminal Appeal 450 of 2017) [2021] TZCA 415 (26 August 2021) (TANZLII), at page 9, the Court stated that: In the interest of justice, we shall step into the shoes of the High Court and do what we did in Ally Rajabu & 4 Others vs. Republic; Abdalla Ally vs. Republic and Mabula Makoye & Another vs. Republic {supra). And 17 | P a g e that is, we are satisfied that the appellant was not prejudiced by the omission to convict, so we shall proceed with the determination of the appeal on the merits. This principle binding on the High Court lucidly provides to the effect that where there is nothing regarding prejudice on part of the appellant even non-conviction is not fatal in law. It is satisfying to note hat where there is clear proof of the offences upon which the offender stood charged in absence of conviction prior to sentence, the appellate court can do two things. First, remit the file to trial court for a proper conviction to be entered. Second, the first appellate court step into shoes of the trial court to enter conviction if such appellate court having re-assessed and re- evaluated the evidence on record finds the same cogent and tangible to prove the case beyond all reasonable doubts thus warranting the conviction. The second infraction is that both judgment and charge were defective for citation of the wrong or non- existing law. This relates only to the offence of rape. I must state that my perusal of the law and records 18 | P a g e I am satisfied that there exists a law upon which the offence of rape was based. Section 130(1), (2)(e) and 131(1) of the Penal Code, Cap 16 R.E. 2022 is indeed appropriate provisions that govern the offence in question. I am not oblivious of the fact that citation of such law missed a comma between section 130(1) and (2). That is the only aspect that counsel for the appellant capitalized on. It is my considered view that such omission is quite minor to render the whole proceedings nullity. It is a minor aspect that cannot be prejudice the appellant in any way. This is what section 388 of the Criminal Procedure Act, Cap 20 R.E. 2022 requires. It provides that: 388. Subject to the provisions of section 387, no finding sentence or order made or passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or in any 19 | P a g e inquiry or other proceedings under this Act; save that where on appeal or revision, the court is satisfied that such error, omission or irregularity has in fact occasioned a failure of justice, the court may order a retrial or make such other order as it may consider just and equitable. The Court of Appeal has set a criterion applicable where there are allegations of defectiveness of the charge. This is in the case of Joakim Mwasakasanga vs Daniel Kamali & Others (Criminal Appeal No. 412 of 2020) [2023] TZCA 55 (24 February 2023), at pages 6-7 where it was stated as follows: - Normally it is the accused who would raise the complaint of a defect in the charge, be it during trial or on appeal. Courts have dealt with such complaints in two ways depending on the circumstances of each case. One, by sustaining the complaint where they take the view that the accused will be prejudiced by the defect. See the case of 20 | P a g e Antidius Augustine v. Republic, Criminal Appeal No. 89 of 2017 (unreported). The other way is by treating the defect as curable and inconsequential where they are satisfied that it does not occasion a miscarriage of justice or prejudice the accused. The latter is a more contemporary position of the law, but always depending on the circumstances. See the case of Abubakari Msafiri v. Republic, Criminal Appeal No. 378 of 2017 (unreported). Also, in the case of Alonda Ekela vs Republic (Criminal Appeal No. 223 of 2022) [2024] TZCA 500 (28 June 2024) (TANZLII), at pages 6-7, the Court of Appeal stated that: Although the charge cited wrong provision of the law, it did not prejudice the appellant because all ingredients of rape were provided in the particulars of the offence. The evidence was also led by the prosecution to prove those particulars. The appellant having understood the 21 | P a g e particulars and heard the evidence, he provided his defence. The omission is thus curable under section 388 of the CPA. This Court was faced with similar scenario in the case of Jamali Ally @ Salum v. Republic, Criminal Appeal No. 52 of 2017 (unreported), where the appellant was charged under sections 130 and 131 (1) (e) of the Penal Code but the appellant complained that section 131 (1) (e) was non-existent. Having considered this complaint, the Court held as follows: "In the instant appeal before us, the particulars of the offence were very dear and, in our view, enabled the appellant to fully understand the nature and seriousness of the offence of rape he was being tried for. The particulars of the offence gave the appellant sufficient notice about the date when the offence was committed, the village where the offence was committed, the nature of the offence, the name of the victim and her age." 22 | P a g e The failure to state the provision upon which conviction was based is a minor irregularity with no impact or inconsequential to the rights of the appellant. Thus, the question of irregularities is answered in the negative thus such ground of appeal namely 2nd ground is dismissed for being devoid of merits. The second set of lamentations are based on failure of the trial Court to consider insanity raised by the appellant. The general rule is that when a defence is insanity is intended to be raised at the trial it must be stated at the time of entering the plea. However, the court is also enjoined if it finds appropriate on its own to inquire on insanity of the person. The procedure for the raising defence of insanity was stipulated in the case of Francis s/o Siza Rwambo vs Republic (Criminal Appeal 17 of 2019) [2021] TZCA 90 (9 April 2021) (TANZLII), at pages 12-13, the Court of Appeal stated that: It should be understood that the law provides two separate procedures for a defence of insanity. If an accused person intends to raise a defence of insanity as a 23 | P a g e bar to a trial, in that, the accused person is incapable of standing trial, the procedure of raising it is provided under sections 216 to 218 of the CPA. Whereas, if an accused person wishes to raise it as a defence of insanity to a charge or information that at the time of committing the offence he was insane, the procedure is provided under sections 219 and 220 of the CPA. We are fortified in that account in the light of what we said in the case of MT. 81071 PTE Yusuph Haji @ Hussein v. The Republic (supra) that: there is a marked distinction between unfitness to make a defence due to insanity and plea of insanity as a defence to a charge or information. Sections 216 to 218 of the Act lay down the procedure to be followed where an accused person is suspected to be incapable of making his defence. In such situations, the issue is as to unfitness of an accused person to plead and to take his trial and, thus, the unsoundness of mind must relate to the time of the trial and the inquiry must be in 24 | P a g e relation to an accused's mental condition at the time of the trial as distinct from his mental condition at the time of the commission of the alleged offence (see Tarino v. The Republic [1957] E.A. 553). Conversely, where it is desired to plead insanity as a defence, the issue, would be as to the state of mind of the accused at the time of the commission of the alleged act. Such a defence is governed by the provisions of sections 219 and 220 of the Act." The procedure is that insanity must be raised at the time of entering the plea if the accused person intends to use it as a defence. This is mandatory procedure under section 219 of the Criminal Procedure Act, Cap 20 R.E. 2022. The second option is that of the court on its own motion to inquire on the insanity of the accused. This is covered under section 220(1) of the CPA. It is not mandatory requirement. It is discretionary as it depends on the circumstances of the case. I may hasten to add, there must be some actions that would make the court to think on inquiring on insanity. 25 | P a g e The record indicates that throughout the proceedings from arraignment to Court nothing unusual happened and recorded in respect of the appellant in trial court to suggest that he is not sane. Also, at the time of entering plea the appellant did not state anything about possibilities of insanity. All the prosecution’s witnesses testified in court where the appellant was present and afforded opportunity to cross-examine. However, nothing on state of mind of the appellant was questioned on the evidence of prosecution’s witnesses. Further, it was only during the defence evidence when the accused/ appellant stated to have attended medical treatment for health problems namely asthma that has impaired him from sexual intercourse activeness, and problem of losing memory as evidenced by Exhibit D 1 collectively. In cross-examination, the defence witness stated that it is true that sometimes he temporarily loses memory. Thus, this was raised only at the conclusion of the case having closed the prosecution’s case. 26 | P a g e In the case of Mwale Mwansanu vs Director of Public Prosecutions (Criminal Appeal 105 of 2018) [2021] TZCA 52 (2 March 2021) (TANZLII), at page 13-16, the Court stated that: We are constrained to parade the relevant procedure where the accused desires to plead insanity as a defence. In the instant case subject of this appeal, sections 219(1) and 220(1) of the CPA were used by the trial Judge to order examination of the appellant in the mental hospital upon the appellant prayer and also to make a special finding on the mental status of the appellant. The procedure to be followed where the accused intends to plead insanity as a defence at the time of commission of the offence was explicitly stated in a High Court case of Republic vs Madaha [1973] EA 515, adopted and elaborated in MT. 81071 PTE Yusuph and Another vs Republic, Criminal Appeal No. 168 of 2015 (unreported) thus:- "First, where it is desired to raise the defence of insanity at the trial, such defence should best be raised 27 | P a g e when the accused is called upon to plead. Second, upon being raised the trial court is enjoined to adjourn the proceedings and order the detention of the accused in a mental hospital for medical examination. Third, after receipt of the medical report the case proceeds the normal way with the prosecution leading evidence to establish the charge laid and then doses its case. Fourth, upon the closure of the prosecution case, the defence leads evidence as against the charge laid, including medical evidence to establish insanity at the commission of the alleged act. And, finally, fifth, the court then decides on the evidence, whether or not the defence of insanity had proved on a balance of probabilities. If such enquiry be determined in the affirmative, the court will then make a special finding in accordance with section 219 (2) and 220 (4) of the Act and proceed in accordance with enumerated consequential orders. 28 | P a g e That being the state of affairs, it is my finding that at all through the proceedings the defence of insanity was not raised except on defence. The blame on the trial court failure to consider insanity is baseless. It was not mandatory for the trial Court to invoke its discretionary powers on conducting inquiry on insanity of the appellant. Section 53 of the Interpretation of Laws Act, Cap 1 R.E. 2019 provides that use of may signifies discretion on party of the person empowered to act. It provides that: 53.-(1) Where in a written law the word “may” is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion. At this juncture, it is to the satisfaction of this court that the trial court correctly acted by not considering the insanity as there was nothing for the court to implore such aspect given that from arraignment of the appellant before the Court to the closure of the prosecution’s evidence. It was absence of anything peculiar circumstances on record that have 29 | P a g e compelled trial Court to inquiry into insanity of the appellant. The 1st ground of appeal is hereby dismissed for being incompetently preferred. The last ground is that the evidence of the prosecution was so contradictory that conviction was improperly arrive at. The contradictions are as follows: First, date of the reporting of the incident. PW 1 stated that he heard about non-attendance of the victim at school on 05/10/2021. PW 2 testified that it was on 08/ 10/2021 when she was taken to the medical doctor and PW 3 stated to have received the victim at the hospital on 06/10/202, examined her and found she was pregnant. PW 4 testified it was on 05/10/2021 when the victim was absent from school thus communicated with PW 1. It was argued that the difference brings a lot of reasonable doubts. Second, there is difference on victim being a student of form two in 2021 or 2022. Third, PW 2 stated that she was found with another man and together were taken to police while PW 1 stated that the man ran away. Fourth, PW 6 did not produce evidence on DNA thus the evidence of PW 6 was not sufficient to warrant conviction. 30 | P a g e In order for contradiction to be bring reasonable doubts in favour of accused/ appellant such contradictions must touch on the core of the case. The appellant stood charged with two counts, namely impregnating a school girl and rape. It was incumbent for the prosecution to prove beyond all reasonable doubts all ingredients of the offences existed. It should be noted that the ingredients for the offence of impregnating a school girl are two. First, the girl impregnated must be attending either primary or secondary school. Second, it should be the accused who impregnated that school girl. These elements were demonstrated in the case of Salum Nicholous Mnyumali vs Republic (Criminal Appeal No. 327 of 2020) [2023] TZCA 17968 (14 December 2023) (TANZLII), at page 14, where the Court observed that: It is trite law that, for the prosecution to establish the offence of impregnating a school girl, it has to prove beyond reasonable doubts two things. One, the girl was impregnated when she was attending either primary or 31 | P a g e secondary school; and two, the schoolgirl was impregnated by the accused person. For the offence of rape, the elements were also three: One, there was penetration of the victim’s vagina however slight it is sufficient. Two, that the victim was below the age of eighteen (18) years old. Third, it is accused who penetrated the victim. In the case of Kambarage Mayala vs Republic (Criminal Appeal No. 208 of 2020) [2023] TZCA 17944 (13 December 2023), at page 9 the Court of Appeal observed lucidly that: This provision creates an offence now famously referred to as statutory rape. What are required to be proved are two facts: One, that the accused had sexual intercourse with a girl, with or without her consent. The sexual intercourse is proved by penetration of her vagina, even a slight penetration is sufficient to constitute sexual intercourse. Two, it must be proved that, the girl is under 18 years of 32 | P a g e age and that, if she is 15 or more years of age, it must be shown that she is not his wife. The nature of these two offences the appellant faced share the elements to great extent. They are based on existence of sexual intercourse between the victim and appellant. At this juncture, I shall restate the available evidence on record to establish existence of the ingredients of both counts. The evidence on record reveals existence of all the ingredients of impregnating a school girl and that of rape. PW 1 (Abuu Hassan Swalehe) stated that the victim one Nurati Abuu was aged 17 years in 2024 and on 05/10/2021 is when he was called that victim was not at School. The victim was a school at ULA Secondary School and aged 14-15 years at the time of incident. PW 2 Nurati Abuu stated that on 05/04/ 2021 went to the appellant’s bedroom for him to put movies on flash disk whereas the appellant grabbed victim’s hand, put her on the bed, undressed her pants, undressed his clothes and had sexual intercourse with the victim. The incident was repeated for the second time after three days. PW 2 stated to 33 | P a g e have been threatened. The responsible man for pregnancy was named to be the appellant as PW 2 stated that appellant is the only man she had sexual intercourse. Also, PW 2 stated after delivery of a child, DNA test was conducted and that DNA test revealed that accused is the biological father. PW 3 (Dr. Jumanne Iboni), stated that on 06/10/2021 examined the victim, found no bruises on the victim’s vagina but on physical examination saw her pregnant thus order Ultra sound test to be conducted where it was revealed that victim was 20 weeks pregnant. He tendered Exhibit P.1 which was the PF 3. Also, PW 4 (Mwl. Khalifa Abduli Kinasha) testified victim was his student of Form II at ULA Secondary with admission number 3530 and tendered Admission Book as Exhibit P.2 and the School Attendance Register admitted as Exhibit P.3. Moreover, PW 5 stated that on 03/04/2024 he was assigned to handle the case and took the accused person/ appellant, the victim and her child to Chief Government Chemist in Dodoma on 04/04/2023 for DNA test. PW 5 stated that buccal swab for the appellant, victim and the victim’s child. PW 6 (Rajabu Omari Mohamed) testified that he is Government Chemist Grade 34 | P a g e II in the Government Chemist Laboratory Authority with five years’ experience. PW 6 stated to have conducted DNA Profile Analysis that revealed that chances that appellant is the father of the victim’s child is 99.9%. PW 6 tender Exhibit P.4 that is Forensic DNA Profiling Test Report. PW 7 cemented only the evidence of other witnesses. DW 1 testimony was to the effect that he denies the allegations. He is asthmatic thus impaired to have sexual intercourse and he has problem of loosing memory. He stated that he does not remember to have had sexual intercourse with the victim. He admitted that DNA Test samples were taken from him, the victim and victim’s child. Close examination of evidence on record is satisfactorily on existence of all the ingredients of the offences, both counts. For impregnating a school girl, evidence of PW1, PW 2, PW 3revealed that on October 2021 the victim was pregnant of 20 weeks period of pregnancy. According to PW 2, she had sexual intercourse with the appellant on 05/04/2021 and three days later they had second sexual encounter. Exhibit P. 1 is categorically clear and illustrative that pregnancy of 20 weeks was found on the victim on 35 | P a g e 06/10/2021. Pregnancy of 20 weeks period on 06/10/2021 tallies with assertion of PW 2 that sometimes in April 2021 she had sexual intercourse with appellant twice. Also, evidence of PW 1, PW 2, PW 4 stated that the victim was a school child. Exhibits P.2 and P. 3 reveal that victim was school child. She was a Form II student at ULA Secondary School. The same is cemented by oral evidence of PW 6 and Exhibit P.4 that stated lucidly that Forensic DNA Profiling Test Report revealed that appellant was a biological father of the victim’s child by 99.9%. Simply, there is no any possibility that child of the victim is another person’s child. Thus, this court is satisfied that all ingredients of the offence of impregnating a school girl were proved beyond all circumspection. It was proved beyond reasonable doubts that it is the appellant that impregnated the victim who was a school child. On the second count of rape, it is not difficult to determine. The ingredients are penetration as proof of sexual intercourse between the appellant and victim and that the victim was under age. It is on record that testimonies of PW 1, PW 2, PW 3, and PW 6 is lucid. According to PW 2’s 36 | P a g e evidence revealed that it was the appellant who had sexual intercourse with the victim on 05/04/ 2021. The sexual intercourse was also repeated after three days thereafter. PW 2 demonstrated that appellant did undress her pants, undressed himself and then penetrated the victim. However, PW 2 did not report as she received threat from the appellant. This evidence was sufficient to establish that sexual intercourse i.e. penetration of the victim’s vagina thus the crucial ingredient of the offence stood prove. Indeed, PW 2 being the victim of the sexual offence there was nothing to doubt on his evidence. The principle applicable in the circumstances was recently reiterated in Butongwa John vs Republic (Criminal Appeal 450 of 2017) [2021] TZCA 415 (26 August 2021) (TANZLII), at page 10, the Court observed that: That the best evidence of sexual offences comes from the victim, is too familiar a principle to require more justification from us. The cases of Seleman Makumba vs. Republic [2006] T.LR 379 and many others on the point, including those cited by Ms. Mapunda, now form a 37 | P a g e settled principle. On that basis, the best evidence of rape in this case has to come from PW2. Furthermore, the age of the victim was similarly proved by evidence of PW 2 who stated that in 2024 was seventeen (17) years old thus when the incident happened, she was around 14-15 years of age. In the case of Joseph Gerald @ Mdomvi vs Republic (Criminal Appeal No. 680 of 2021) [2024] TZCA 765 (19 August 2024) (TANZLII), at pages 11-12, the Court of Appeal reiterated that: On this one, we are guided by the Court's stance taken on a number of occasions, such as in Wilson Elisa @ Kiungai v. R, Criminal Appeal No. 449 of 2018 (unreported). That the age of the victim can be proved by herself, parent, guardian, medical practitioner, or by producing a birth certificate if available. See- also, Victory Mgenzi @ Mlowe v. R (Criminal Appeal 354 of 2019) [2021] TZCA 149 (30 April 2021: TanzLII) and Robert Sanganya v. R (Criminal Appeal 363 of 2019) [2022] 38 | P a g e TZCA 18 (10 February 2022: TanzLII). In this instance, at least PW1 who is the father of the complainant stated clearly that, his daughter was born on 20/06/2001. It means that, by that material time in September, 2017, she was sixteen years old. The complainant also testified to that effect and we believe her. The whole evidence on ingredients of rape was well corroborated by testimonies of PW 1, PW 3 and PW 6. PW 1, victim father, informed the court that the victim was taken to hospital and found with 20 weeks pregnancy in October 2021 and that she was 14- 15 years old. PW 3 testified that he examined the PW 2 on 06/10/2021 found no bruises at the victim’s vagina. However, PW 3 saw the distended abdomen as a general physical examination thus ordered Ultra sound test to be done. The result of Ultra sound revealed the victim to have approximately 20 weeks pregnancy. This was explicitly reflected in Exhibit P1, the PF 3. 39 | P a g e Furthermore, evidence of PW 6 corroborates the evidence of PW 2 on the responsibility of the appellant to the pregnancy. In particular, Exhibit P.4 is explicit on paragraph 2.0 (a) and 3.0 revealing that: 2.0(a) Kutokana na matokeo ya uchunguzi, tukilinganisha mpangilio wa chembechembe za asili za urithi (DNA Profile) zitokazo kwa mzazi kwenda kwa Mtoto (a) Kati ya maeneo yote kumi na tano (15) ya mtuhumiwa Mohamed S/O Hussen yaliyofanyiwa uchunguzi ni maeneo yote kumi na tano (15) yaliyooana na maeneo ya Mtoto Ramaiya D/o Mohamed Hussen. 3.0 HITIMISHO Tegemeo la nafasi (chances) ya Mtuhumiwa Mohamed S/O Hussen kuwa Baba Mzazi wa Mtoto Ramaiya D/O Mohamed Hussen ni asilimia 99.99(99.99%) ukizingatia kuwa Nuriat D/O Abuu ni Mama Mzazi wa Mtoto Ramaiya D/O Mohamed Hussen. 40 | P a g e The finding of the trial Court was well guided by the position of the law that though evidence of PW 3 and PW 6 were expert opinions, there were nothing on record to doubt the testimonies of the Assistant Medical Officer who examined the victim at Kondoa Hospital and that Government Chemist who analysed the DNA samples from the victim, victim’s child and appellant on the paternity of the victim’s child. The tallying of the Forensic DNA Profile Test Result between the victim’s child and the appellant signifies that it is true that appellant has sexual intercourse with the victim. Indeed, Exhibit P4 provides a clear link on the appellant’s participation that did not depend on human memory that fade with time. Illustratively, this court subscribes to the principle in the case of Maneno s/o Matibwa Francis @ Babio vs Republic (Criminal Appeal No. 35 of 2021) [2023] TZCA 78 (1 March 2023) (TANZLII), at page 11, the Court of Appeal lucidly stated that: We are aware that DNA is vital scientific evidence in solving crimes as it links the accused person with the crime 41 | P a g e committed - see: Christopher Kandidius @ Albino v. The Republic, Criminal Appeal No. 394 of 2015 (unreported). The evidence of PW 6 both oral and documentary watered down completely the evidence of defence that he has never had sexual intercourse with the victim and that his sexual activeness has been completely impaired by him being asthmatic. It should be noted that the whole of the prosecution’s evidence on record was not challenged by the appellant. Except for evidence of PW 1 which was cross examined on the person who wanted that appellant marry the victim, nothing on all the evidence relating to ingredients of both offences was cross-examined by the appellant. Thus, the whole evidence of PW 2 that it is the appellant who raped her twice in April 2021 in his room, PW 3 that victim was found pregnant with 20 weeks pregnancy, PW 4 that victim was a student at ULA Secondary School. Also, evidence of PW 5 that all the victim, her child and appellant were subjected to DNA Sample taking at Government Chemist office in Dodoma and that of PW 6 that DNA Results of the victim’s child tallied on DNA of the appellant. 42 | P a g e It is settled law that where the party to a case fails to cross examine on important issue, it is considered that he accepted that to be truth on the matter. In the case of Jafari Juma vs Republic (Criminal Appeal 252 of 2019) [2023] TZCA 216 (3 May 2023) (TANZLII), at page 16, the Court reiterated that: It is very unfortunately that, the appellant did not cross examine PW1, PW2 and PW3 on this account to shake their credibility. As a matter of principle, a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said. As it has been pointed that appellant opted not to cross -examine on all important matters on the prosecution witnesses he is barred from complaining on truth of that evidence. In totality of the events, the prosecution managed to prove the case beyond all reasonable doubts for both counts of impregnating a school girl contrary to section 60A (3) of the Education Act, Cap 353 as amended by 43 | P a g e the Written Laws (Miscellaneous Amendment) (No 2) Act of 2016 and rape contrary to section 130(1), (2)(e) and 131(1) of the Penal Code, Cap 16 R.E. 2022. It is settled view of this court that trial court -the District Court of Kondoa properly analysed the evidence on record and correctly entered conviction and sentence against the appellant. There is nothing to warrant this Court to interfere with legally acceptable decision of the trial District Court. Thus, the decision of trial court is hereby affirmed and the appeal is hereby dismissed for lack of any cogent merits. It is so ordered. DATED at DODOMA this 20th November 2024 E.E. LONGOPA JUDGE 20/11/2024. 44 | P a g e