CRIMINAL APPEAL NO

IN THE HIGH COURTOF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 25353 OF 2024 (Originating from the decision of the District Court of Masasi at Masasi in Criminal Case No. 1791 of2024) HASSANI MUSA MUSA ©MWAHAOLYA................ APPELLANT VERSUS THE REPUBLIC.................. RESPONDENT JUDGMENT 24h October & 28h November, 2024 MPAZE, 3.: In the District Court of Masasi at Masasi (the trial court), Hassani Musa Musa @Mwahaolya, the appellant herein was charged with the offence of Grave Sexual Abuse contrary to sections 138C (1) (a) and 2 (b) of the Penal Code [Cap 16 R.E. 2022] (the Penal Code). According to the charge brought before the trial court, it was alleged that on the 16th day of December, 2023 at Mijelejele village within Masasi District in Mtwara region, the appellant did rub his penis on the vagina of a girl aged three years and six-month-old for sexual gratification. For purposes of concealing her identity in this judgment, I will refer to her as AD or the 1 victim. The appellant denied the charge and the case proceeded to a full trial. To establish the guiltiness against the appellant the prosecution paraded three (3) witnesses to wit; WP 13690 PC Sakina (PW1), Fatuma Ibrahim Juma (PW2), and Hamad Hussen Maulana (PW3). The prosecution also tendered the appellant's caution statement which was admitted as Exhibit Pl and the victim's clinic card as Exhibit P2. On the other hand, the defence side had only one witness, the appellant (DW1), with no exhibit. The prosecution's case before the, trial court was based on the following narrative; On 16th December, 2023 at around 18:00 hours, PW2 (the victim's mother) and the victim visited the victim's aunt, Ester. It was asserted that the appellant was also present at the time. Shortly after their arrival, the victim stepped outside, and the appellant allegedly followed, claiming he needed to attend to a short call. PW2 testified that about 15 minutes passed without seeing either the victim or the appellant. Concerned, PW2 decided to call the victim. She called 2 the victim's name twice, but there was no response. On the third call, she heard the victim reply from the backyard of the house. Upon following the direction of the voice, PW2 claimed to have seen the appellant half-naked, seated on the ground with his underpants and shorts pulled down. She further alleged that the appellant was holding his penis while the victim, who was on her knees, was positioned close to him. At that moment, PW2 asserted that she witnessed the appellant rubbing his penis against the victim's private parts. PW2 raised an alarm for help, and the first person to respond was PW3, who allegedly apprehended the appellant. It was further claimed that PW3 took the appellant to the Mijelejele Village Executive Officer, after which the appellant was taken to the Masasi Police Station. At the police station, the appellant was allegedly interrogated by PW1, who stated that the appellant confessed to committing grave sexual abuse against the victim. The cautioned statement, purportedly recorded during the interrogation, was tendered by PW1 and admitted as Exhibit Pl. It was stated further that on the same day, PW2 was issued with a PF3 and took the victim to Mkomaindo Hospital for a medical examination. .3 Following the examination, it was alleged that the victim tested negative for HIV and showed no signs of any sexually transmitted diseases. In his protestation of innocence, the appellant denied the allegations against him. He claimed that on the fateful day, he had just returned from a ceremony when he heard the sound of a motorcycle outside his house. Upon opening the door, he encountered PW3, who allegedly instructed him to get on the motorcycle. The appellant claimed that when he questioned the reason, he was informed that he was accused of raping someone. Subsequently, he was taken on the motorcycle to the police station. After the trial, the trial court found that the prosecution had proven the offence of grave sexual abuse against the appellant beyond a reasonable doubt. Consequently, the appellant was sentenced to serve a term of 20 years imprisonment. Unhappy with the trial court's decision, and seeking to vindicate his claim of innocence, the appellant lodged his appeal based on the following nine grounds; 4 Z That the trial court erred in law and facts by convicting the appellant while the prosecution failed to prove the case beyond reasonable doubt ii. That the trial court erred In law and facts by convicting the appellant relying in illegal cautioned statement. Hi. That the trial court erred in law and facts by convicting the appellant without considering and evaluating properly defence evidence as required by the law. iv. That the trial court erred in law and facts by convicting the appellant while the appellant was denied his right to mitigate his case. v. That the trial court erred in law and facts by convicting the appellant while the prosecution failed to summon a crucial witness. vi. That the trial court erred in law and facts by convicting the appellant while the Appellant denied his right to bail as required by the law. vii. That the trial court erred in law and facts by convicting the appellant based on inconsistence and uncorroborated evidence adduced by the prosecution witnesses. 5 viii. That, the trial court erred in law and facts by convicting the appellant relied on defective charge which is contravened by the law. ix. That, the trial court erred in law and facts by convicting the appellant while the victim was not called to testify before the court oflaw neither to be called in order the court to test his competence. On the day the appeal was called on for hearing, the appellant, appeared in person without any legal representation while Ms. Florence Mbamba, the learned State Attorney appeared for the respondent. Upon being availed with an opportunity to expound his grounds of appeal, the appellant prayed his petition of appeal which he had filed to form part of his submission. In opposing the appeal, the learned State Attorney, Ms. Florence, chose to begin with the eighth ground of appeal, which raised the issue of the defectiveness of the charge sheet. She contended that, pursuant to section 132 of the Criminal Procedure Act [Cap 20 R.E. 2022] (the CPA), every charge sheet must contain a statement of the offence, along with particulars that provide reasonable information regarding the offence. 6 Ms. Florence further submitted that, upon examining the charge sheet in the present appeal, she found that the statement of the offence correctly cited the relevant section under which the offence was committed/ that is section 138(C)(1)(a) and (2)(b) of the Penal Code, which pertains to the offence of grave sexual abuse. The particulars, she argued, also provided essential details that outlined the nature of the offence and its key elements. In light of this, the learned State Attorney urged the court to consider this ground of appeal as unfounded. With regard to the first, seventh and ninth grounds of appeal which according to the learned State Attorney revolve around the claim that the prosecution failed to prove the case beyond reasonable doubt. She argued that to establish the offence, the prosecution had the duty to prove two main elements; sexual gratification and lack of consent. She stressed this court to look up the testimony of PW2 whose evidence is found on pages 18 and 19 of the trial court proceedings. According to her, on page 18, in the last paragraph, PW2 quoted saying: V found Mwahaolya had bent my child down while holding his penis as though he was striking it against my child's private parts/ 7 Ms. Florence was of the considered view that the above statement from PW2 establishes sexual gratification. In addressing the second element of the offence lack of consent the learned State Attorney argued that on page 18 of the trial court proceedings, PW2 explained that the victim was 3 years and 10 months old, which, in her view, established that the victim was a child of tender age. Thus, she contended that the issue of consent is irrelevant in this case, given the victim's age. Responding to the claim that the evidence was Inconsistent and uncorroborated, Ms. Florence strongly countered this by maintaining that PW2 provided a detailed explanation on page 18 of the trial court proceedings about how the incident unfolded until she caught the appellant with the victim. She added that PW2's testimony was corroborated by the evidence of PW3, as shown on page 24 of the trial court proceedings. There, PW3 narrated in detail how he went to the scene and found the appellant with half naked, ultimately arresting him and taking him to the police station. The learned State Attorney further argued that, based on this evidence, there 8 were no contradictions. Therefore, she contended that the claim of inconsistency and lack of corroboration was unfounded. Turning to the complaint that the trial court erred in convicting the appellant In the absence of the victim's testimony, Ms. Florence submitted that this claim had no merit. She explained that both PW2 and PW3 were eyewitnesses to the events. Furthermore, she emphasized that PW2 specifically witnessed the appellant sexually abusing the victim, and their testimonies were sufficient to establish the offence against the appellant. To support her argument, she referred to the case of Abubakari Shabani v. Republic (Criminal Appeal No. 312 of 2021) [2024] TZCA527 (8 July 2024), which involved similar circumstances to the case at hand. Moving to the second ground of appeal, which criticizes the learned trial magistrate for convicting the appellant based on an illegal cautioned statement, Ms. Florence conceded this complaint, acknowledging that the statement was recorded outside the prescribed time. Ms. Florence explained that section 50(l)(a) of the CPA requires an accused person's statement to be taken within four hours from his arrest. She stated that PW1, the investigator in this case, testified that the appellant 9 was brought to the police station at 01:00hrs hrs and that interrogation began at 06:00 hrs, but no explanation was provided for the delay in taking the appellants statement. Given these circumstances, she prayed that Exhibit Pl, the appellant's caution statement, be expunged from the record. Regarding the third ground of appeal, Ms. Florence conceded that the trial court had indeed failed to consider the appellant's defence. Upon reviewing page 3 of the trial court judgment, she noted that after formulating the issues, the court focused solely on the prosecution's evidence and did not consider the appellant's defence. However, the learned State Attorney was quick to point that, as this is the first appellate court, it has the power to exercise its discretion and consider the appellant's defence at this stage. Regarding the fourth complaint, which asserts that the appellant was sentenced without being given the opportunity to mitigate his case, the learned State Attorney submitted that this ground is baseless. She explained that the appellant was charged under section 138(C)(2)(b), which prescribes a penalty of 20 years (minimum) and 30 years (maximum). According to Ms. Florence, the trial court imposed the minimum sentence. Even if the appellant had been allowed to mitigate, she argued, the sentence would not io have been affected since the court had already imposed the minimum penalty. Therefore, she considered this ground to be without merit. On the fifth ground, where the appellant claimed that the prosecution failed to call crucial witnesses, the learned State Attorney countered that all the witnesses called by the prosecution were indeed crucial. She referred to Section 143 of the Evidence Act [Cap 6 R.E 2022] (theTEA), which states that there is no prescribed number of witnesses required to prove any fact. Ms. Florence further submitted that all witnesses who testified in this case were materiel and sufficient to establish the prosecution’s case. Finally, addressing the sixth ground of appeal, where the appellant criticized the trial magistrate for allegedly convicting him while denying him the right to bail as required by the law, Ms. Florence briefly responded by pointing out that, as shown on page 5 of the trial court proceedings, the appellant was asked whether he had sureties, to which he responded that he did not. Moreover, on page 11 of the proceedings, the appellant was again asked if he had secured sureties, and he reiterated that he had not. li According to Ms. Florence, these circumstances indicated that the appellant was not denied the right to bail. Based on this, she urged the court to dismiss this ground in its entirety. In conclusion, Ms. Florence maintained that the appeal lacked merit and urged the court to dismiss it in its entirety while upholding the findings of the trial court. For his part, the appellant had nothing substantial to say in rejoinder. Having considered the submission by Ms. Florence in response to the grounds of appeal and examined the entire record of appeal, the key issue for determination is whether this appeal has merit. In resolving this appeal, I will begin by addressing the grounds that complain about procedural irregularities. Starting with the eighth ground of appeal, which raised concerns regarding the alleged defectiveness of the charge sheet, the learned State Attorney contended that the charge sheet fully complied with the legal requirements. She argued that the statement of the offence accurately cited the relevant section of the law governing the offence, while the particulars 12 of the offence provided essential details clearly outlining the nature and key elements of the alleged offence. Ms. Florence aptly submitted that it is a fundamental principle of law that, for a charge to be valid, it must comply with the requirements stipulated under section 132 of the CPA. The section provides; '132. Every charge or information shaft contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accusedperson is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.' Despite the appellant's complaint that he was convicted and sentenced based on a defective charge, he did not specify the exact defect in the charge sheet. On the other hand, the State Attorney maintained that the charge under which the appellant was charged was proper. At this juncture, let me pause and carefully examine the charge in question to determine whether it was defective or not. The charge reads; 'CHARGE STATEMENT OF THE OFFENCE 13 GRA VE SEXUAL ABUSE Contrary to section 138 C(l) (a) and 2(b) of the Pena/ Code Cap 16 [R.E2022] PARTICULARS OF OFFENCE HASSANI S/0 MUSSA@MWAHAOLYA charged on the day of December 2023 at Mijelejele -village within Masasi District in Mtwara Region, did rub his penis on the vagina [of] the victim aged three years and six months oid for sexual Gratification. - What I have observed from this charge sheet, after reading the statement and particulars of the offence, is that the statement of the offence cites the wrong provision of the law defining the category of the offence, which does not align with the particulars provided. The section cited, 138C (i) (a), is not appropriate given the particulars of the offence. Upon reviewing the particulars of the offence, it is evident that the offence was committed against a child aged 3 years and six months. Therefore, the proper section that ought to have been cited in the statement of the offence is section 138C (1) (d), which provides; '138C -(.1) Any person who, for sexual gratification, does any act, by the use ofhis 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 14 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- (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/ The question now is whether the failure to cite the proper provision of the law renders the charge defective. In the case of Jamali Ally ©Salum v. R (Criminal Appeal No. 52 of 2017) [2019] TZCA 32 (28 February 2019), where a similar issue of wrong citation of the relevant law arose, the Court observed; V/7 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/ 15 Again, in the case of Marko Maibasi v. R (Criminal Appeal No. 676 of 2021) [2024] TZCA 729 (14 August 2024), the Court, quoting with approval the decision in Deus Kavoia v, R Criminal Appeal No. 142 of 2012 (unreported), which dealt with a nearly identical issue to the present appeal, stated as follows; 'We have taken note that the charge against the appellant was preferred under sections 130 and 131 of the Penal Code instead ofsections 130 (2) (e) and 131 (1). However, we are of the firm view that the irregularity is curable under section 388 of the CPA, particulars of offence having sufficiently informed the appellant that he was charged with the offence of raping a girt of 12 years bld' See also the case of Frenk Qnesmo v. R (Criminal Appeal No. 476 of 2020) [2024] TZCA 41 (14 February 2024). Guided by the cited authorities, the legal position is that a wrong citation of the relevant law constitutes a defect that can be cured under section 388 of the CPA, provided that the particulars of the offence and the evidence presented can clearly and precisely relate to the offence described in the charge, even if the proper provision was not cited. Additionally, it must be assessed whether the failure to cite the correct provision has led to any 16 miscarriage of justice. If no such miscarriage has occurred, the defect does not render the charge invalid. Upon revisiting the charge sheet in this case, it is apparent that the particulars of the offence were sufficiently clear. They provided the appellant with adequate notice regarding the date, location, nature of the offence^ and the identity of the victim, including her age. Therefore, despite the incorrect citation of the provision, the particulars ensured that the appellant was fully informed of the charge against him. On top of that, upon examining the evidence provided by PW2, all the essential elements of the offence have been thoroughly outlined. PW2's testimony clearly details the victim's name and age, the location of the offence, and the manner and circumstances surrounding its commission. As such, through PW2's evidence, the appellant was fully informed of the offence he was charged with. Given this, despite the technical deficiency in the charge, I find that it did not prejudice the appellant in any way nor lead to a miscarriage of justice. Consequently, the defect is curable under section 388 of the CPA. Therefore, I conclude that this complaint is without merit. 17 I now turn to consider the second ground of appeal, in which the appellant faults the trial court magistrate for relying on an iilegal caution statement. The State Attorney conceded this ground, acknowledging that the caution statement was recorded out of time, contrary to section 50 (1) (a) of the CPA. This issue does not warrant extensive deliberation. After carefully examining PWTs testimony, it is evident that the caution statement was recorded outside the prescribed time on section 50 (1) (a) of the CPA. As such, I find that the caution statement (Exhibit Pl) was improperly recorded and should not remain in the record. In light of this, I hereby expunge the caution statement (Exhibit Pl) from the record, as asked by the learned State Attorney. Turning to the complaints raised in the sixth ground, the appellant faults the trial court for convicting him while he was allegedly denied his right to bail, as required by the law. This ground was opposed by Ms, Florence, who contended that the appellant's right to bail was not denied. Rather, it was the appellant's failure to provide sureties to meet the bail conditions that prevented his release, referring the court to pages 5 and 11 of the trial court proceedings. 18 This ground made me reflect deeply, as I questioned whether it truly should be part of the appellants appeal challenging the conviction. I pose this question because I am aware that the denial of bail is not a substantive issue related to the merits of the trial or the final decision. Appeals generally serve to challenge the correctness of a court's decision on substantive legal or factual issues in a case. Bail is a procedural matter that does not directly influence the court's findings regarding the accused's guilt or innocence. I believe that a proper avenue for raising this complaint, if indeed bail was wrongly denied by the trial court, would have been for the appellant to address it through a separate application for bail review or a revision application at the High Court. This is because bail related issues are interlocutory and handled independently of the trial process. Examining the appellant's complaint, I noted that he did not elaborate on how the denial of bail affected his conviction. However, after examining the trial court record and considering the submissions of the State Attorney, I observed that the appellant was not 19 denied bail. In fact, it was the appellant who informed the court that he did not have sureties to meet the bail conditions. Furthermore, during subsequent hearings, the trial court consistently reminded the appellant of his right to bail, but he continued to state that he had no sureties. This is clearly is shown on pages 5 and 11 of the trial court proceedings. In light of this, I find that the complaint raised in ground six is unfounded and, as such, I hereby dismiss it. I now indulge in considering the first, fifth, seventh, and ninth grounds of appeal, which revolve around the appellant's claim that the prosecution failed to prove the case beyond a reasonable doubt. This complaint is composed of four distinct limbs; On the first limb, the appellant faulted the trial court for convicting him while the prosecution failed to prove the case beyond reasonable doubt. In opposing this ground, the learned State Attorney contended that to prove the offence that the appellant was charged with, the prosecution needs to prove two main elements; sexual gratification and lack of consent. Ms. Florence argued that PW2's testimony effectively proved the offence. She stated that PW2 testified as follows; 20 7 found Mwahaolya had bent my child down while holding his penis as though he was striking it against my child’s private parts* ’ According to Ms. Florence, the above statement from PW2 establishes sexual gratification. Regarding the issue of consent as the second element, the learned State Attorney submitted since the victim was three years of age the issue of consent became irrelevant. As mentioned earlier, the appellant should have been charged under section 138 C (1) (d) of the Penal Code. For the sake of clarity, I will reiterate this provision here to examine the elements of the offence, as the section states; '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 ofgrave sexual abuse if he does so in circumstances falling under any of the following descriptions, that is to say- (d) N/A 21 fe) N/A (f) N/A (d) with or without the consent of a person who is under the age of eighteen years.' From the cited section, in order for the court to determine that the prosecution has successfully proven its case beyond a reasonable doubt, the following elements must be proven: one, the act is for sexual gratification. Two, the act does not amount to rape. Three, it involves the use of the genital or any other part of the human body or any instrument or any orifice or part of the body of another person, and Four, with or without the consent of a person who is under the age of 18 years. It is a well-established legal principle that in criminal cases, the burden of proving the charge beyond a reasonable doubt rests on the prosecution. This principle has been enunciated by this court and the Court of Appeal in numerous decisions. For example, in the case of Matibya Nq'habi v- R. (Criminal Appeal No. 651 of 2021) [2024] TZCA 34 (14 February 2024), the Court of Appeal stated; 22 'At the outset, it is instructive to note that, in this being a criminal case, the burden lies on the prosecution to establish the guilt of the appellant beyond a reasonable doubt. In Woodmington v. DPP [1935] AC 462, it was held inter alia that it is the duty of the prosecution to prove the case, arid the standard ofproof is beyond reasonable doubt.’ Now, returning to the case at hand, to determine whether the prosecution successfully proved the charge against the appellant, I carefully examined the evidence presented in the trial court. Upon reviewing the record, and as highlighted by Ms. Florence, it is clear that the only witness who testified regarding the commission of this offence is PW2. In her testimony recorded on page 18 of the trial court proceedings, PW2 stated; 'NiHmkuta Mwahaolya amemuinamisha mwanangu huku ameushika uume wake akawa kama anauchapia kwenyesehemu za siriza mwanangu alikuwa kama anamlomba mwanangu.z From the appellant's act of 'ameushika uume wake akawa kama anauchapia kwenye sehemu za siri za mwanangu' these words signify nothing other than sexual gratification. The appellant's action of rubbing his genital against the victim's private parts was clearly done for his own pleasure and not otherwise. 23 However, those words still indicate that the act did not amount to rape because, according to PW2, the appellant was rubbing his penis against the private parts of the victim. This statement suggests that there was ho penetration, which is a fundamental element required to constitute the offence of rape under the law, Instead/ the appellant's actions, as described, fall within the ambit of grave sexual abuse, which involves acts of sexual gratification without penetration. The distinction here is critical; while rape necessitates evidence of penetration, grave sexual abuse addresses acts intended to sexually gratify the offender through improper contact with another person. Therefore, based on PW2's testimony, it is evident that the appellant's actions, though egregious, do not meet the legal threshold for rape but instead constitute grave sexual abuse under section 138C (1) of the Pena! Code. Another element the prosecution was required to prove is that the act involved the use of a genital or any other part of the human body. PW2's testimony clearly demonstrated that the appellant was using his genital, thereby proving that a genital part was used for sexual abuse. 24 Regarding who committed this offence against the victim, PW2 testified that it was the appellant. After noticing her child was missing she call out, and the victim respondent from behind the house. When she followed, she found the appellant committing the act of grave sexual abuse against the victim. She screamed and the first person to arrive at the scene was PW3. PW3 explains that after hearing the alarm from PW2, he rushed to the scene and found PW2 holding the victim while PW2 crying. When PW3 asked PW2 what had happened, PW2 explained that the appellant wanted to rape her daughter. PW3 states that at that moment, PW3 found the appellant sitting on the ground, half naked. The appellant, in his defence, strongly denied committing the offence and explained that on that day, while coming from a traditional dance (ngoma), he met PW3 on the way. He continued with his journey and arrived home. Shortly after, he heard a knock at the door. He went out and found PW3, who asked him to get on his motorcycle and leave. When he asked what was going on, PW3 told him it was because he had raped someone. The appellant refused, but PW3 insisted that he get on the motorcycle, and 25 the appellant complied. He was then taken to the Masasi Police Station. He therefore stated that the case had been fabricated against him. Upon examining the testimony of PW2, PW3, and the appellant regarding who committed this offence, I find that the appellant's defence does not convince me at ail that he was not the one who committed the offence. There is no evidence to suggest why this case would be fabricated against him. Nowhere does it show that PW2 and PW3 have any conflict with him that would lead them to falsely accuse him. Furthermore, even when looking at the cross-examination of PW2 and PW3, there was no question posed by the appellant's that would suggest they may have fabricated this case. He did not question them about the manner in which he was arrested, which could have shown that he was not apprehended at the scene but rather at his home. Failure to cross-examine a witness on a material fact may lead the court to infer admission of that fact. In the case of Martin Jacob @ Mlila v, R (Criminal Appeal No. 434 of 2021) [2024] TZCA 447 (11 June 2024). The Court held inter alia that; 26 J4s the law stands now, failure to cross examine on an important aspect means admission. See: Nyerere Nyague k Republic (Criminal Appeal No. 67 of (2010) [2012] TZCA 103 (21 May 2012 TANZLII). In the circumstances of this appeal, we are constrained to conclude that, the defence evidence was admitted by the prosecution as true testimony of facts'. Applying the principle of the case in the case at hand, since the appellant did not question the relationship between himself and PW3, nor did he question his arrest at the scene, this indicates that he agreed with the testimony of PW2 and PW3 regarding his apprehension at the scenes Therefore, I consider his defence as an afterthought, which has failed to cast any doubt on the prosecution's evidence. As for the second and third limbs, the appellant raised a complaint regarding the prosecution's failure to summon a crucial witness, specifically questioning why the victim was not called to testify. In response, the learned State Attorney argued that all the witnesses paraded by the prosecution were crucial, and according to section 143 of the TEA, there is no prescribed number of witnesses required to prove any fact. Regarding the issue of why the victim was not called to testify, Ms, Florence submitted that since PW2 directly witnessed the appellant sexually 27 abusing the victim, her testimony was sufficient to establish the offence against the appellant. In other words, she contended that PW2's testimony alone was enough to prove the offence, even in the absence of the victim's testimony. Interpreting section 143 of the TEA the Court of Appeal in the case of David John v, R (Criminal Appeal No. 56 of 2020) [2024] TZCA 582 (17 July 2024), held; It is well established that the prosecution side has the discretion to call witnesses who will support their case and there is no number of witnesses required to prove a fact under section 143 of the Evidence Act.' In this complaint, while the appellant did not explicitly identify the crucial witness alleged to have been omitted, he raised an additional grievance regarding the trial court convicting him in the absence of the victim's testimony. This suggests that the crucial witness the appellant referred to was, in fact, the victim. After thoroughly scrutinizing the trial court's record, I have observed that the victim indeed never appeared in court to give her testimony. Furthermore, the records are silent on the reasons why the victim failed to 28 testify. This raised the question; Did the prosecution's failure to call the victim as a witness render their case unproven? I considered this question in light of the principle that the best evidence in sexual offence cases often comes from the victim. However, while reflecting on this, I came across the case of Haji Omary v. R (Criminal Appeal No. 307 of 2009) [2015] TZCA 313 (30 September 2015), where the Court of Appeal faced a similar scenario and stated as follows; 'The law recognises that there are instances where charges may be proved without victims ofcrimes testifying in court. Take murder for example where the victims are deceased. Senility, tender age or disease of mind may prevent a victim testifying in court (see section 127 of the Evidence Act) but this does not mean that a charge sheet cannot be proved in the absence of the victim's testimony. In this case, the victim was a four-year-old child. He was indeed a child of tender age. Though we agree that ideally the reason for the non-taking of the testimony of the victim should have been entered on record however such failure neither weakened the case for the prosecution nor resulted in a failure ofjustice'. [Emphasis added] 29 This principle underscores that, although the victim's testimony is crucial, its absence does not automatically invalidate the prosecution's case if sufficient evidence exists to prove the offence. See also the case of Abdallah Elias v, R [2012] T.LR 8. With the legal principle in mind, it is clear that the victim in this case was a child of tender age. As indicated in the charge sheet, the testimony of PW2, and Exhibit P2, the victim was only three years old at the time of the incident. While it would have been prudent for the record to indicate why the victim's testimony was not obtained, the absence of such an explanation does not, in itself, weaken the prosecution's case. In line with the decision in Haji Omary v. R (supra) the failure to provide reasons for not calling a witness does not necessarily undermine the prosecution's case if there is other compelling evidence substantiating the offence. In the case at hand, although the victim did not testify, the evidence provided by PW2, the victim's mother, was sufficient to prove the offence committed against the victim beyond any reasonable doubt. Therefore, I find this complaint to be without merit. 30 On the fourth limb, the appellant contends that there was inconsistency and uncorroborated evidence adduced by the prosecution witnesses. Despite this complaint, the appellant did not specify which witnesses' evidence he considered inconsistent, nor did he identify which pieces of evidence lacked corroboration. However, I have carefully examined the testimonies of all the prosecution witnesses, namely PW1, PW2, and PW3. PW1 is the witness who recorded the appellant's caution statement which was admitted as Exhibit Pl. However, after expunging the caution statement, the remaining testimony from PW1 is limited to what he did during the investigation, which aligns with the evidence provided by PW2 and PW3. Additionally, upon examining the testimonies of PW2 and PW3,1 find no inconsistencies in their evidence, as their accounts corroborate each other. Based on this, I find that the complaint is without merit, and this ground fails. As for the third ground of appeal, which asserts that the trial court convicted the appellant without properly considering and evaluating the 31 defence evidence as required by law. The learned State Attorney conceded this point, acknowledging that the defence evidence was neither considered nor properly evaluated. She thus prayed that this first appellate court re­ evaluate and consider the defence evidence. It is well-established in law that failure to consider defence evidence is fatal to a conviction. However, if the lower court fails to consider the defence evidence, this may provide a basis for the first appellate court to intervene in the trial court's findings and, if necessary, make its own findings. This position was reaffirmed by the Court of Appeal in the case of Yustine Robert v. R (Criminal Appeal No. 299 of 2020) [2024] TZCA 1004 (29 October 2024), where it was stated; ' Having duly considered the submissions of both parties and reviewed the record, we wish first to state that this being a first appeal, the Court is entitled to re-evaluate and reconsider the evidence tendered before the trial court, and if appropriate, arrive at its own decision. We shall do so in this appeal.’ Having thoroughly examining the trial court's decisions, I agree with the parties that the defence evidence was not evaluated or considered in reaching the judgment. On page 3 of the trial court's judgment, the learned 32 trial magistrate merely summarized the appellant’s defence without providing any analysis. Similarly, on page 4 of the judgment, the magistrate found the appellant guilty without adequately considering or evaluating the defence. In analyzing and evaluating whether the appellant committed the offence, this court has duly considered his defence. It is evident that the appellant's defence did not effectively cast any doubt on the credibility of the testimonies provided by PW2 and PW3. Both witnesses consistently testified that they saw the appellant with the victim on the relevant day, and subsequently took him to the police. The appellant's blanket denial, without specific challenges to the prosecution's evidence or any credible alternative explanation, failed to raise a reasonable doubt regarding his involvement in the offence. Despite his duty to challenge the prosecution's case and undermine its evidence, the appellant did not succeed in doing so. Thus, his general denial does not diminish the strength of the prosecution's case. The final ground for discussion of appeal is the fourth ground, the appellant disagrees with the decision of the trial court, arguing that he was 33 sentenced without being given the opportunity to submit mitigating factors. It is a well-established principle of law that before sentencing, the convicting court is required to receive both aggravating and mitigating factors from the parties involved and must take these into account when determining the appropriate sentence. However, the records of this appeal reveal that neither the aggravating nor mitigating factors were submitted after the appellant was found guilty and convicted. Instead, the trial court proceeded directly to impose a sentence of 20 years' Imprisonment. The question is; Did the failure to allow the appellant to submit mitigating factors before sentencing prejudice him in any way? My answer to this question is negative. The purpose of allowing an accused person to submit mitigating factors before sentencing is to provide an opportunity to present factors that could assist the court in imposing a lesser sentence, provided the law allows for discretion. However, in the appellant's case, the law prescribes a minimum sentence of 20 years and a maximum of 30 years for the offence. The 34 appellant was sentenced to 20 years, which is the least severe penalty that the trial court could impose under the law. Therefore, even if the appellant had been allowed to submit mitigating factors, the sentence could not have been reduced below the statutory minimum. See the case of Issa Mustapha Gora & Another v, R (Criminal Appeal 330 of 2019) 2022 TZCA 638 (19 October 2022). Consequently, while I agree that the failure to allow the submission of these factors was a procedural error, it does not constitute a substantive injustice. The sentence imposed was the minimum required by law, and the appellant was not prejudiced by the oversight, as the outcome would not have been different. Therefore, this ground lacks merit and is hereby dismissed. In the final analysis and on the basis of the above stated reasons, I find that the appeal is barren of fruits and it is hereby dismissed in its entirety. It is so ordered. Dated at Mtwara this 28th day of November 2024. 35 M.B. Mpaze Judge Court: Judgment is delivered today in the presence of Mr. Karangi Joel, learned State Attorney for the Republic and the appellant. M.B. Mpaze Judge 28/11/2024 36