CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 22479 OF 2024 (Originating from the District Court of Masasi at Masasi, in Criminal Case No. 108/2023) JUSTINE METHEW MILLANZI............. APPELLANT VERSUS THE REPUBLIC ............... RESPONDENT JUDGMENT 9^ October, 2024 & 0* November, 2024 MPAZE, J.: Following the Masasi District court decision, Justine Methew Millanzi (the appellant) was found guilty of the offence of grave sexual abuse, contrary to section 138C(1) and (2) (b) of the Penal Code [Cap. 16 R.E. 2022] f the Penal Code'), he was convicted and sentenced to serve 20 years imprisonment. The particulars of the offence as laid in the charge leading to the appellant's conviction alleged that; on 17th day of October, 2023 at Kisiwani area within Masasi District in Mtwara Region, Justine Methew Millanzi did hold penis of one PW2 (name hidden for protection of his i identity) twelve (12) years of age and inserted into his anus for sexual gratification. Despite the appellant denying the allegations, the trial court still found him guilty after hearing the evidence from both sides. The trial court was satisfied with the prosecution’s evidence, on account that the charge against the accused was proved beyond a reasonable doubt. After being dissatisfied with the trial court's decision, which the appellant believed was unjust, he decided to try his chances in this court, raising five grounds of appeal as follows; 1. That the trial court erred in law and fact by convicting and sentencing the appellant while prosecution failed to prove the case beyond reasonable doubts. 2. That the trial court erred in Jaw and facts by proceeding with the matter without reading and reminding the charge the appellant when the matter was scheduled for hearing. 3. That the trial court erred in law and fact by convicting and sentencing the appellant while the prosecution failed to produce material evidence to wit medical report from Mkomaindo and Ndanda Hospital 2 4. That the trial court erred in law and fact by convicting the appellant basing on the testimony of the PW2 that was illegally obtained. 5. That the trial court erred in law and facts by convicting and sentencing the appellant basing on the incredible evidence of the victim. During the hearing of this appeal, the appellant enjoyed a legal service from Mr. Reinary Songea, the learned Advocate, whereas the respondent/Republic was represented by the learned State Attorney, Ms. Florence Mbamba. Before I proceed with what the parties have submitted, I would like to point out that the facts of this case are not complicated, considering that there is no dispute that on the 17th October, 2023 in the evening, the victim (PW2) went to the appellant's home, a fact that the appellant himself confirmed in his defence. The only dispute is that while the victim claims to have been sexually abused after arriving at the appellant's home, the appellant, denies ever Committing any sexual abuse against him. As I have previously stated, despite his denial, the trial court found the case was proven, as it was satisfied with the evidence presented by the prosecution that established the charge beyond reasonable doubt 3 In support of the appeal Mr. Songea argued that the appellant's conviction was flawed asserting that the prosecution had not established the charge beyond a reasonable doubt. He underscored the fundamental legal principle that the burden of proof rests squarely on the prosecution, as mandated by section 3(2) of the Tanzania Evidence Act [Cap 6 R.E 2022] f the. TEA*). Mr. Songea further contended that, in criminal proceedings, the charge sheet must precisely delineate the essential elements of the offence, thereby ensuring a solid legal basis for the indictment. Mr. Songea submitted that, the appellant was charged under section 138 C (1) of the Penal Code, which contains multiple subsections. However, the charge sheet did not specify the subsection, which, in his view, left the appellant uncertain about the precise nature of the allegations. He referred the case of Andrew Loniine v, R (Criminal Appeal No. 50 of 2019) [2020] TZCA 293 (15 June 2020], where he claimed a similar Issue led to the charge being deemed defective. He further cited Francis Fabian @ Emmanuel v* R (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023] to highlight that a charge must detail all elements of the offence. He said in the case at hand, the charge sheet only mentioned sexual gratification, omitting the crucial element of lack of consent. Consequently, Mr. Songea 4 asserted that the prosecution’s failure to include both elements rendered the charge defective, preventing proof beyond a reasonable doubt. Mr. Songea also pointed out discrepancies in witness testimonies, particularly from PW1, PW2, and PW3, which he argued supported for the offence of an unnatural offence rather than grave sexual abuse. He claimed despite these inconsistencies, the prosecution did not amend the charge, as required when evidence varies from the charge sheet. He referred to the Francis Fabian case as support for this procedural misstep. Furthermore, Mr. Songea addressed the medical evidence from Mkomaindo and Ndanda hospitals. He noted that, according to PW3’s testimony, the appellant had been taken to both hospitals, yet the medical results from these examinations revealed no signs of sexual assault. He contended that these findings significantly weakened the prosecution's case and contradicted PW2's account, wherein PW2 claimed his penis had been inserted into the appellant's anus. Mr. Songea further emphasized that the absence of any medical reports from either hospital documenting the findings from the appellant's examination critically undermines the strength of the prosecution's case. 5 Given these contradictions and the lack of medical evidence, he urged the court to acquit the appellant, claiming that the prosecution had failed to prove the offence beyond a reasonable doubt. Arguing grounds four and five together, focusing on the credibility of PW2's testimony, Mr. Songea submitted that PW2 was a child offender age, whose testimony required adherence to section 127(2) of the TEA. According to Mr. Songea, this section mandates that a child of tender age must promise to tell the truth and explicitly state not to tell lies. However, he noted that PW2‘s promise recorded on page 11 of the proceedings only stated,'Naahidi kusema ukwefi' which he contended was insufficient and incomplete as it did not include a declaration against telling lies. To bolster his argument counsel for the appellant cited cases of Godfrey Wilson v, R (Criminal Appeal No. 168 of 2018) [2019] TZCA 109 ( 6 May 2019) and Ramadhan Seif @ Mashoto v, R (Criminal Appeal No. 17 of 2020),[2024] TZCA 487 (24 June 2024) in which the courts ruled that an incomplete or unclear promise rendered the testimony inadmissible. He argued that, similarly, PW2’s testimony in this case should be expunged for failing to meet legal requirements. Should PW2's testimony be expunged, Mr. Songea argued, the case would be left with hearsay evidence from PW1 and PW3. Accordingly, he 6 emphasized that the prosecution had not proven the charge beyond a reasonable doubt. Mr. Songea withdrew the second ground of appeal and urged the court to allow the appeal, emphasizing that the absence of evidence proving sexual gratification, as highlighted in the Onesmo Ezekiel Fundi v. R case, meant that the prosecution's case had not been established. Ms. Florence opposed the appeal, arguing that the prosecution had proven the case beyond a reasonable doubt, she urgued that both elements of the offence that is sexual gratification and lack of consent were sufficiently established. Referring to PW2'S testimony on page 11 of the proceedings, the State Attorney pointed out that PW2 described how, on 17th October, 2023 the appellant removed his trousers and started playing with his penis till he erected, illustrating sexual gratification. Ms. Florence added that, PW2 testified being threatened by the appellant, which showed the absence of consent. The State Attorney highlighted that PWl's testimony on page 6 of the proceedings corroborated PW2's account, reinforcing the prosecution's evidence. With this consistent testimony, she argued, both elements of the offence were clearly established, meeting the legal standard of proof. 7 Addressing the claim of a defective charge, the State Attorney asserted that the particulars adequately outlined the elements of the offence. She pointed out that while lack of consent was not explicitly stated in the charge, the testimonies of PW1 and PW2 addressed this element effectively. Relying on the case cited by Mr. Songea Andrew Loniine's case, Ms. Florence was of the view that the case supports her position while, stressing that the evidence of prosecution side managed to prove the offence of grave sexual abuse. Concluding submission on this ground, the State Attorney asked this ground of appeal be dismissed, claiming that the prosecution had successfully proven the offence. Ms. Florence countered the argument that all witnesses referred solely the offence to the unnatural offence. Addressing this claim, she pointed to PWl's testimony on page 6 of the proceedings, paragraph 3, where PW1 described how the appellant removed PW2's trousers and engaged in playing with PW2's penis. This, the State Attorney argued, clearly established the element of sexual gratification, aligning With grave sexual abuse rather than focusing on an unnatural offence. Likewise, the State Attorney referred to PW2's testimony on page 11 of the proceedings, where PW2 confirmed that the appellant removed 8 his clothing and touched his penis until it erect. PW3's testimony on page 16 of the proceedings further supported this, describing the appellant's actions involving the victim's penis. The State Attorney concluded that this consistent evidence from the witnesses clearly pertained to grave sexual abuse, not merely to the unnatural offence, and asked the court to dismiss the appellant's claim. The State Attorney argued that the appellant's claim about the prosecution's duty to amend the charge, referencing the case of Francis Fabian, is baseless. She highlighted that all witnesses provided testimony specifically addressing the offence the appellant was charged with, thus negating the need for any amendment. The State Attorney also rejected the appellant's contention that PW3's testimony regarding attending to two hospitals, with tests reportedly showing no evidence of penetration, undermines PW2's credibility. She clarified that the appellant was charged with grave sexual abuse, not an unnatural offence, and PW2's detailed description of the appellant's actions was supported by PW3's testimony. Accordingly, she argued that this claim lacks merit and should be rejected. Addressing the argument about the absence of medical evidence, the State Attorney contended that medical reports were unnecessary because the offence charged was grave sexual abuse. She cited the legal 9 principle from Selemani Makumba v. R [20091 TLR 379, which holds that the victim's testimony is the best evidence in sexual offence cases. PW2's account alone was deemed sufficient for conviction, according to Ms. Florence. In addressing grounds four and five, which challenged the credibility of PW2 based on an alleged failure to comply with section 127(2) of the TEA, the State Attorney countered by asserting that the trial magistrate had adhered to the legal requirements, as PW2 had promised to tell the truth. She further argued that even if strict compliance with the section is to be deemed insufficient, the principle established in George Jonas Lesilwa v. R (Criminal Appeal No 374 of 2020) [2024] TZCA 269 (16 April 2024) requires the court to assess the reliability of a child's testimony. Ms. Florence emphasized that a child's evidence cannot be disregarded solely due to non-compliance with section 127(2) of the TEA. Given that PW2's testimony was corroborated by PW1 and PW3, the State Attorney claimed that PW2 was credible, distinguishing this case from Godfrey Wilson and Ramadhani Seif cited by the counsel for the appellant. For these reasons, the State Attorney asked the court to dismiss the appeal and uphold the trial court's decision. io In rejoinder, Mr. Songea argued that the State Attorney's reliance on George Jonas Lesilwa v. R is misplaced, as the case they cited is from June 2024 and thus more recent, which, by rules of interpretation, takes precedence than the one referred by the State Attorney. He stressed that PW2's testimony does not fulfill the requirements of section 127(2) of the TEA. Specifically, on page 11, PW2's statement lacked the essential promise to speak the truth, a defect highlighted in Ramadhani Seif ©Mashoto, Subsequently, he reiterated that PW2's testimony should be disregarded. Mr. Songea further contended that Ms. Florence had selectively referenced parts of the proceedings to argue that sexual gratification had been substantiated. He drew attention to PW2's testimony on page 11, which specifically stated that his penis was inserted into the appellant's anus, indicating penetration. However, Mr. Songea noted that this claim was contradicted by the findings of the medical examination, as reported by PW3, which showed no evidence of penetration when the appellant was assessed. This contradiction, he argued, called into question PW2's credibility. Moreover, Mr. Songea underscored the necessity for all elements of the offence to be distinctly articulated in the charge sheet, as reinforced by the Andrew Loniihe case. He asserted that inadequacies in the charge cannot be remedied through witness testimony. Concluding his argument, he maintained that the prosecution felled to prove the case beyond a reasonable doubt and urged the court to allow the appeal. After considering the submissions from both sides and thoroughly examining the record and the challenged judgment of the trial court, I will begin by addressing the complaints regarding procedural irregularities in resolving this appeal. If these procedural irregularities are insufficient to resolve the appeal, I will then proceed to determine the remaining grounds of complaint. Having said that, I must state at the outset that I agree with Mr. Songea's assertion that, in criminal cases, the burden rests on the prosecution to prove the case beyond a reasonable doubt This fundamental principle ensures that the accused is only convicted if the evidence provided establishes his guilt to a high degree of certainty, thereby protecting against wrongful convictions. Furthermore, as Mr. Songea argued, it is undisputed that the charge failed to specify the exact subsection under which the appellant was charged. Instead, it merely cited section 138C(1) and (2)(b) of the Penal Code without clarifying which particular paragraph under section 138C(1) ranging from (a) to (d) was applicable. 12 A charge, as the cornerstone of a criminal trial must be drawn in compliance with the provisions of law. Section 132 of the Criminal Procedure Act [Cap 20 R.E 2022],(the CPA) requires the charge to contain statement and particulars of offence. The mode on which offences are to be charged is provided under section 135 of the CPA. In drafting a charge, the prosecutor should abide with the above provisions of law. The statement of the offence must contain a specific section of law incriminating the accused and punishment Section. Particulars must show the name of the accused, the date he committed the offence, the place the offence was committed, essential elements of offence, what he did and to whom the offence was committed. The five "Ws" rule (WHO, WHEN, WHERE, WHAT & TO WHOM), should be observed when drafting charges. According to the particulars of the offence under which the appellant was charged constituted grave sexual abuse, an offence established under section 138C (1). This section contains sub paragraphs (a) to (d), each applicable depending on the specific circumstances of the offence committed. When one reads the particulars of the offence, it is clear that they describe the victim as a child below the age of 18 years, which, according to paragraphs (a) to (d), places the offence under paragraph (d). 13 Therefore, under section 135 of the CPA, paragraph (d) should have been explicitly included in the statement of the offence. While Mr. Songea argues that the failure to indicate the correct sub­ paragraph renders the charge defective, Ms. Florence contends that, since the particulars of the offence and the evidence presented by the prosecution sufficiently clarified the nature of the offence, the omission of citing the specific paragraph did not affect the validity of the charge. It is a legal principle that, failing to cite a specific subsection or subparagraph will only render a charge defective if the particulars of the offence omit any reference to essential elements within that subsection or subparagraph, and if no evidence is presented to address the omitted subsection's elements in a way that prejudices the accused, thereby impairing their ability to mount an adequate defence. However, if the particulars and evidence given reflect the omitted subsection',s or subparagraph's, the omission does not necessarily make the charge defective; instead, it can be remedied under section 388 of the CPA. Therefore, the omission of a subsection or subparagraph in the charge sheet is not automatically grounds for defectiveness. Instead, the impact of such an omission will depend on the specific circumstances of each case. .14 In the case of Maiimi Peter v, R, (Criminal Appeal No. 480 of 2020) [2024] TZCA 65 (9 February 2024), where the Court, when faced with a similar situation, stated; ' On our part, we agree with the appellant that, in the charge sheet, it is vividly dear that the only cited sections are 130 and 131 of the Penal Code, without specifying the relevant subsections and paragraphs...This issue was discussed in detail in the case of Mathayo Kingu v. R, (Criminal Appeal589 of 2015) [2016] TZCA 332. However, this Court now interprets the absence ofsubsections and paragraphs using the test of prejudice to the appellant. In JamaHAlly @ Salum (supra), the Court applied the following test; 'The first issue relates to the failure by the prosecution to cite section 130 (1), (2) (e) and 131 (2) of the Pena! Code, That is, whether the defect from the wrong citation or citation of inapplicable provisions prevented the appellant from understanding the nature and seriousness of the offence of rape, thereby preventing him from entering an appropriate defence and resulting in injustice... It is our finding that the particulars of the offence, together with the victim's testimony (PW1), enabled him to appreciate the gravity of the offence facing him, eliminating all possible prejudices. We conclude that the irregularities in non-citations and citations of inapplicable provisions are curable under section 388 (1) of the CPA/ 15: The Court, therefore, endorsed the first appellate judge's finding that such defects are indeed curable under section 388of the CPA. [Emphasis added] In considering the case at hand, to determine whether the appellant was prejudiced by the omission of the correct subparagraph citation, I examined both the particulars of the offence and the evidence presented by both parties. Starting with the particulars of the offence they specify; 'Justine Methew Miiianzi, on 17th day of October, 2023 at Kisiwanl area within Masasi District in Mwanza Region, did hold penis of one PW2 twelve (12) years of age and inserted into his anus for sexual gratification' The subsection in question that was not cited here is (d) of section 138C(1) of the Penal Code, which states, 'with or without the consent of a person under the age of eighteen?. When examining the particulars of the offence, it is clear and explicit that the victim's age is indicated as twelve years. This direct reference to the age of the victim within the particulars inherently meets the requirements set out in subsection (d), as it confirms the victim is below the age threshold of eighteen. Therefore, even though 16 subsection (d) was not explicitly cited, the essential element namely, the age of the victim is sufficiently conveyed. This omission does not affect the validity of the charge, as the particulars address all necessary elements related to the age of the victim. Therefore, this error is curable under section 388 of the CPA. An additional omission which was raised by Mr. Songea concerned an alleged the absence of the element of Jack of consent’ in the particulars of the offence which he considered essential to the offence of grave sexual abuse. He referred to the case of Andrew Loniine, where the Court observed; Juxtaposing the above particulars of the offence ofgrave sexual abuse with the provisions of section 138C (1) (a), (b), (cj, we can unhesitatingly say that while the element of ’inserting fingers into the vagina' is disclosed by the particulars of the offence, the other ingredients of 'for sexual gratification' and 'lack of consent are missing from the particulars of the offence under section 138C of the Pena! Code. Because essential ingredients ’for sexual gratification' and 'lack of consent were not included in the particulars of the offence^ no evidence was led by the prosecution to prove these two ingredients. Therefore, the prosecution cannot be taken to have proved the offence ofgrave sexual abuse beyond a reasonable doubt when essential ingredients of ’for sexual gratification’ and ’lack of consent’ were neither included in the 17 particulars of offence nor was evidence presented to prove these ingredients Along with stating that, in the same case, the Court had this to say; 'At thisjuncture, while examining the ingredient of lack of consent,' we could not help but wonder if, hypothetically, a five-year-old gid in this appeal had consented to the act of the appellant inserting his fingers into her private parts for self-gratification, the appellant would have a defence against the offence of grave sexual abuse. This is a possible absurdity arising from the interpretation ofsection 138C (1)(a)(b)(c) and (2) of the Pena! Code as it stands. We think this prevision should be amended, at the very least, to protect children under the age of 18 who/ in law, cannot give consent to either grave sexual abuse or any other sexual o/ifence.'[Emphasis added] In examining this case, beyond acknowledging the absence of two critical elements 'for sexual gratification' and 'lack of consent'the court raised concern about whether a five-year-old child could ever be legally capable of consenting to such an act. The Court remarked that, without legislative changes, this hypothetical consent might even provide a defence for the accused, highlighting a problematic reading of section 138C (l)(a)(b)(c) and (2) of 18 the Penal Code. Consequently, the Court recommended amendments to the law. The .above observation led to amendment introducing section 138C(l)(d) of the Penal Code, through section 42 of the Written Laws (Miscellaneous Amendments) Act No. 1 of 2020, which did not previously exist. The added paragraph states; '(d) with or without the consent of a person who is under the age of eighteen years.' Following this amendment, there is no longer a requirement for the term 'lack of consent' to be specified in the particulars of a charge concerning grave sexual abuse of a child under eighteen years of age. This stipulation was only pertinent prior to the legislative amendment. Now, the essential elements are to show that the victim is a child under 18 years of age and that the act was committed for sexual gratification, both of which should be indicated in the charge particulars. I have arrived at this conclusion after a thorough examination of section 130(l)(2)(e) of the Penal Code, commonly referred to as the 'statutory rapd. The wording used in this section closely parallels that 19 of section 138C(l)(d) of the Penal Code. Subparagraph (e) of section 130(2) provides; '130(2)(e) 'with or without' her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years ofage and is not separated from the man.' [Emphasis added] The phrase 'with or without consent'\n section 138C(l)(d) closely mirrors the language in statutory rape provisions, indicating that consent is immaterial in sexual offences involving minors. This is reflected in statutory rape charges, where' lack of consent'\s not included in the particulars. Thus, if 'lack of consent' is unnecessary in statutory rape cases, the same logic applies to grave sexual abuse Involving minors, as both provisions use similar language to render consent irrelevant. Given this analysis, I find Mr. Songea's argument lacks merit. The omission of 'lack of consent'does not render the charge defective, in light of the amendment introduced by section 138C(l)(d) of the Penal Code. Another procedural complaint is the trial court's failure to comply with section 127(2) of the TEA when recording the evidence of PW2. Mr. Songea argues that the promise made by PW2 was incomplete, as PW2 20 only stated,' I promise to speak the truth''vfthG\A adding 'and not lies.’According to Mr. Songea, the omission undermines the credibility of PW2's testimony, he cited the cases of Godfrey Wilson and Ramadhani Seif to support his argument. Ms. Florence, on her part, argued that section 127(2) of the TEA was properly complied with when recording PW2's evidence, as PW2 did promise to speak the truth. However, she further noted that if this court is to find a defect in complying with section 127(2), the focus should then be on the credibility of that evidence. She referred to the case of George Jonas Lesilwa v. R to support her argument. In his rejoinder, Mr. Songea, maintained that, following the rules of interpretation, the most recent decision in this area should be given precedence. He emphasized that the case he cited, Ramadhan Seif, is more recent, as it was decided in June 2024, compared to the case cited by Ms. Florence, which was decided in April 2024. I am alive with this stance regarding the recent decision to be followed, as earlier stated. Mr. Songea argued that the case he cited, Ramadhani Seif, is the most recent and therefore should be adhered to. However, I would like to point out an even more recent decision that 21 is directly applicable to the current issue Hamad Aliy Mpei v;. Republic (Criminal Appeal No. 497 of 2022) [2024] TZCA 645 (26 July 2024).The Court confronted an analogous issue and observed that; . the evidence of PWl was recorded, is a complete promise within the meaning ofsection 127(2) of the Evidence Act. Let the record speak of itself on this aspect, and we quote: "PWl.... I always go to school from Monday to Friday, once you tell lies to somebody else you commit sin. I promise to tell the truth. Court: PWl does not know the purpose of oath butpromised to tell the court the truth." [emphasis ours] It is dear in the foregoing quoted passage and in no ambiguous terms that, PWl made a promise to tell the truth and not to tell lies before her evidence was received. As we stated in Nassoro Mwalami Kuga (supra), there is nothing therefore allied to the alleged incomplete promise as complained by the appellant..’ What transpired in the Hamad Ally Mpei v. Republic case aligns closely with the circumstances in the present case. Thus, guided by this precedent, I find no compelling reason to assert that the promise made by PW2, when he stated, 'Ipromise to tell the truth) is wanting in any way. 22 In ordinary language, the act of PW2 stating,' 1promise to tel! the truth, even without completing the phrase 'and not lies' implies his intention to convey only the truth and nothing false. In other words, when someone promises to speak the truth, it inherently means he commit not to tell lies. Therefore, this complaint holds no merit. My assessment indicates that the testimony of PW2 is credible and acceptable, unaffected by the perceived omission highlighted by the counsel for the appellant. After addressing the procedural irregularities, I now turn to the core issue; whether the prosecution sufficiently proved the case beyond a reasonable doubt. The appellant's counsel contended that the evidence provided by the prosecution did not align with the charge. He pointed out contradictions in the witnesses' testimony and argued that the evidence appeared to substantiate an unnatural offence, rather than the one for which the appellant was charged. Starting with the complaint concerning the alleged contradictions in testimony, I find no merit in this argument. Upon examining all the witnesses, beginning with PW1, she testified that PW2 informed her about 23 going to the appellants home, where the appellant pulled him into a room, manipulated his penis until it became erect, and then inserted it into his anus. This account is consistent with the testimony given by PW2. PW3, who was the investigator of this case, provided evidence regarding his investigative duties. He stated that he interviewed both PW2 and the appellant. His testimony was largely in agreement with that of PW1 and PW2, with the exception of additional information he provided about taking the appellant to the hospital. PW3 explained that he took this action after the report that the appellant had inserted PW2's penis into his own anus. Based on the discussion above in respect of this complaint, I have not found any inconsistencies in the testimonies of the three witnesses; their evidence aligns and corroborates one another. However, despite this consistency, the crucial question remains whether such evidence sufficiently proved the offence of grave sexual abuse as charged against the appellant. Consistency alone does not necessarily confirm that the specific offence has been established. 24 While discussing the defectiveness of the charge sheet, I pointed out that the appellant should have been charged under Section 138C(1) (d) of the Penal Code, which reads; '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 ofgrave sexual abuse... (a) N/A (b) N/A (c) N/A (d) with or without the consent of a person who is under the age of eighteen years As previously discussed regarding the issue of including "lack of consent" in the particulars of the offence, I explained that due to legislative amendments, 'tack of consent is no longer a necessary element in the offence of grave sexual abuse involving a child under the age of eighteen. Currently, the essential elements required for this offence are twofold: first, establishing that the victim is under eighteen years of age, and second, proving that the wrongful act was carried out for sexual gratification. These are the key aspects the prosecution must establish to substantiate this offence. 25 To assess whether the offence was established, and bearing in mind that the best evidence in sexual offences generally comes from the victim, I was prompted to carefully examine PW2's testimony to ascertain if it sufficiently proved the offence for which the appellant stands charged. Turning first to the issue of age, PW1, who is the victim's mother, testified as follows; 'PW2 turns 13 years this year. He is a standard seven pupil at Mkuti Primary School. PW2 was born on 08/07/2011...' Additionally, PW2 himself confirmed in his testimony; 'I am thirteen years old. I am a standard seven pupil at Mkuti Primary School...' This evidence sufficiently establishes PW2's age, as both PW1 and PW2 have corroborated this fact. Judicial decisions acknowledge that a child's age can be confirmed through a parent, relative, birth certificate, doctor, or even the child's own statement. See the case of Mathavo Laurence William Mollel v. R (Criminal Appeal No 53 of 2020) [2023] TZCA 52 (20 February 2023) 26 Proceeding to the second element, sexual gratification, I reviewed both the charge sheet and PW2's testimony to assess whether this element has been satisfactorily proven. In a portion of PW2's testimony, he stated; '...He took my trousers off and threw me on his bed and then started playing with my penis until I got erection. Mwaiimu MiHanzi also took off his clothes 'akanizamisha nimuingizie mdudu kwenye sehemu yake ya haja kubwa I refused but he threatened to do something bad to me. He then bend over and then took my penis and inserted in his anus and Mwaiimu started rubbing himself on me. After he satisfied he told me to go wash myseiff On the other hand, the charge sheet used the wording, '...didhold the penis of PW2...and inserted it into his anus for sexual gratification.’ These words align closely with PW2's own testimony, where he stated,' ...and then he took my penis and inserted it into his anus...’ In examining both the charge sheet and PW2's testimony, the question is whether these statements sufficiently satisfy the requirement of sexual gratification as outlined under section 138C of the Penal Code. Section 138C (1) as indicated above explicitly addresses acts performed for sexual gratification that do not constitute rape. Essentially, 27 the section refers to actions intended to cause sexual arousal or pleasure but do not involve penetration. When penetration occurs, and if it involves a girl or woman, the offence is categorized as rape. However, in a case where the victim is a boy, as in the present matter, the classification is different because the definition of rape does not extend to male victims. The issue, therefore, is whether PW2's testimony amounts to ah act committed for sexual gratification under section 138C (1). My understanding of section 138C (1) is that the act must involve some form of sexual contact that does not amount to penetration. Thus, once penetration is established, the nature of the offence transforms into something distinct from grave sexual abuse. I hold this considered view after analyzing the case of Shani Chamwela Suleiman v. R (Criminal Appeal No. 481 of 2021) [2002] TZCA 592 (28 September 2022), where the facts were analogous to these in the current case, except that in Shani Chamwela Suleiman, a woman committed the act against a male child, whereas here, a male person committed the act against to a boy child. In that case, the appellant was convicted of indecent assault and an unnatural offence. On appeal, the Court of Appeal noted; 28 '...In order to test that principle, we had an opportunity to closely examine the evidence of PW2. Without any reservation, we agree with the first appellate judge that: 'by looking at his testimony, it narrates dearly on how he was sexually assaulted by the accused on different occasions, andthe last incident was witnessed by PW3.' For instance, at page 24 of the record of appeal, PW2 testified as follows: I wasplaying football, Shanisaw me... she asked me to go inside so that she gives me money... she took off her dothes and mine too, she put me into the bed. She started to play with my 'UCHrso that it erects... after playing with me, she put my penis into her vagina. After inserting my penis, she started shaking her waist... "[Emphasis added]. On page 26, he continued: "She then brought me to the !pagale' (an unfinished house], there was a bump, I walked through that bump, and she followed. She put her wrap down; this time, she only removed her underwear. She touched me, I erected, and this time she didn 't play with it; she then inserted it into her anus, and she shook! [Emphasis added]. After examining the evidence from the trial court and the 1st appellate court judgement, the Court further stated; 'Looking at the evidence of PW2 in the record of appeal, we observed that he was coherent and consistent in narrating what had occurred to him, which in essence proved the ingredients of the offences with which the appellant was Charged.1 29 As indicated, the appellant in that case was charged and convicted of indecent assault and an unnatural offence. The evidence leading to her conviction for indecent assault was PW2's description that; 'she asked me to go inside so that she gives me money... she took off her dothes and mine too, she put me into the bed. She started to play with my 'UCHI'so that iterects... after playing with me, she put my penis into her vagina. After inserting mypenis, she started shaking her waist.' This evidence is what led to Shani Chamwela Suleiman's conviction for indecent assault. It closely parallels the testimony of PW2 in the present case, where PW2 apart of stating that his penis was inserted into the appellant's anus he also said '...then started playing with my penis until I got erection. Mwalimu MiHanzi also took off his clothes akanizamisha nimuingizie mdudu kwenye sehemu yake ya haja kubwaf In the case of Shani Chamwela Suleimani, all the conduct involving the improper touching of the victim and, specifically, the act of inserting the victim's penis into her vagina, were determined by the Court to constitute indecent assault. 30 Similarly, in the present case, the conduct perpetrated against the victim closely mirrors that in Shani Chamwela, with one notable distinction; whereas in Shani Chamwela, the victim's penis was inserted into the appellant's vagina, in this case, the victim's penis was inserted into the appellant's anus. The victim's testimony, describing the insertion of his penis into the appellant's anus, is the basis on which Mr. Songea urges this court to determine that the evidence supports a charge of unnatural offence rather than grave sexual abuse. Upon thoroughly examining the Shani Chamwela case, I partially concur with Mr. Songea's argument that the evidence provided could indeed suggest an unnatural offence. In Shani Chamwela, the accused faced two counts, one of which was unnatural offence. The evidence leading to Shani's conviction for unnatural offence Included the testimony of the victim that '...Sfte touched me, I erected and this time she didn't play with it; she then inserted it into her anus, and she shook' 31 This testimony closely reflects the testimony of PW2 in the current case, where he similarly stated, '...and then he took my penis and inserted it into his anus...' Nevertheless, I will refrain from further discussing the offence of unnatural offence, as I have determined that, despite some evidence suggesting its commission, this offence is not a lesser offence of grave sexual abuse. I would only continue analyzing it if it could be considered a lesser offence within the context of grave sexual abuse. Although there is evidence indicating elements of unnatural offence, there is also testimony supporting the lesser offence of grave sexual abuse, as previously highlighted when comparing the evidence in the Shani Chamwela case regarding indecent assault with the evidence in this case. Based on this analysis, I agree that the evidence provided by PW2 does not substantiate the offence of grave sexual abuse. In my assessment, the degree of penetration described does not align with the requirement of proving mere sexual gratification as stipulated under section 138C (1) of the Penal Code. 32 Instead, I conclude that the evidence supports a lesser and related offence, namely gross indecent assault, under section 138A(1) and (2) of the Penal Code. The relevant section states; (l)Any person who, in public or private, commits, or is party to the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, is guilty of an offence... (2) Notwithstanding subsection (1), where the offence is committed by a person of eighteen years of age or more in respect of any person under eighteen years of age, a pupil of a primary school, or a student of a secondary school, the offender shall be Hable on conviction to imprisonment for a term not less than ten years, with corporal punishment, and shall also be ordered to pay compensation of an amount determined by the court to the person in respect of whom the offence was committed for any injuries caused to that person/ Guided by the authority of Shani ChamweSa Suleiman, I am confident that the evidence provided by the prosecution sufficiently establishes the offence of gross indecent assault, as described earlier. I have also taken into account the appellant’s defence, in which he denied any involvement in or commission of the offence. However, the manner in which the evidence was given, along with his defence, failed to raise any reasonable doubt regarding the prosecution's case. PW2 gave 33 a clear and coherent narrative of the events, and even during cross- examination, he remained steadfast and consistent in his testimony. Based on how the evidence was adduced, there is no indication or suggestion that this case may have been fabricated due to any conflict or existing grudges between the parties involved, leading to the appellant being falsely accused of such a serious offence. Having stated all of this, since the appellant was charged with grave sexual abuse, and after reviewing the evidence provided, I find that this specific offence has not been proven. Instead, a lesser offence has been established, pursuant to section 300 of the CPA, which states; '3OO.-(l) Where a person is charged with an offence consisting of several particulars, a combination ofsome only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it (2) Where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.' In view of the foregoing discussion, I hereby find the appellant guilty of the offence of gross indecent assault contrary to section 138A of the 34 Penal Code. Consequently, I convict him and impose a sentence of 10 years* imprisonment. Additionally, I order that the appellant compensate the victim with TZS 1,000,000/=. The sentence will commence from 25th July, 2024 the date he was first convicted by the trial court. Since the charge of grave sexual abuse has not been proven, I acquit the appellant of that particular offence. Accordingly, the appeal succeeds to the extent explained above. It is so ordered. Dated ap^ltwara this 6th November, 2024. M.B.Mpaze Judge COURT: This Judgment has been delivered today in the presence of Mr. Edson Mwapili, the State Attorney for the Republic and Mr. Ahyadu Nannyohe Advocate for the appellant. M. B. M Judge 6/11/2024 35