20171221 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA (MWANZA REGISTRY)

AT MWANZA HC.CRIMINAL APPEAL NO.291 OF 2017 {Original Criminal Case No. 64 of 2017 of the District Court of Musoma at Musoma} 1.DANIEL S/O HANGA .................. ....... ;.... APPELLANTS 2.GHATI D/O MWITA GIBOGO

VERSUS t THE REPUBLIC ........... ■■ •••••••••••••• ■ ••• ■ ••• I ••• ■ •••• ■• ■ ••• ■■ • ••• RESPONDENT Last Order: 04/12/2017 \I' ' Judgment: 21/12/2017

JUDGMENT MAKARAMBA, J.: ~ This Judgment is on appeal from.n t~e decision of Musoma District Court in Criminal Case No. 64 of 2017__c;jJted 22/08/2017 before Hon. R.B. Maganga Esq. SDM. ' Briefly, in 2017 the Appellants were arraigned before the Musoma District Court at Musoma jointly charged with and were convicted of the offence of Sexual Harassment c/s 138D (1) of the Penal Code/ [Cap.16 R.£ 2002Jset out in three counts. They were jointly sentenced to serve five (5) years in prison on each count. On the other hand the 1st Accused/Appellant was separately charged with and convicted of the offence of Assault Causing Bodily Harm c/s 241 of the Penal Code/ Cap.16 R.£ 2002 and . sentenced to serve five (5) years in prison. The Court ordered all sentences ,- ' . ' Page 1 ·of 23 _.,, l' • ),< '•·t, ~ ~ ~ .. ,.. '\ ";'\ (~ .,. . to run concurrently. Furthermore, the trial Court ordered each accused person to compensate each of the three victims, namely, Ramadhani Marwa (PWl), Monica d/o Bernard (PW3) and Tige d/o Juma (PW4) the sum of Tanzanian Shillings One Million (Tshs. 1,000,000/=) for all that they did to each one of them on the fateful day of night hours. The Appellants are aggrieved by the decision, and have appealed against it before this Court on the following grounds, namely; 1. That, the trial Magistrate erred in law and fact for failure to consider that there was two version from the police statement of PWJ which contradict each other.

2. That, the trial Court erred in law and fact for convicting the Appellants basing on the statement that "Yah kusamehewa kwa Kesi ya Shambulio" Exh.PEJ and failure to consider that the :t7d Accused was not charged with assault causing actual bodily harm.

3. That, the trial Court erred in law and fact for deciding that the 1st Accused took PW3 mobile phone and wrote message to :t7d Accused that PW3 has agreed to pay Tshs.1,000,000/- cash to :t7d accused without any evidence from the prosecution.

4. That, the trial Magistrate erred in law and fact for sentencing the :t7d Accused to 5 years imprisonment and failure to give him the option to pay fine while the offence charged with has the option of fine.

5. That, Magistrate erred in law and fact for failure to consider the evidence of PW6 contradicts with the evidence of PWJ. Page 2 of 23 ~ 6. That, the trial Magistrate erred in law and fact for failure to recognize that the allegation of mere presence of :!'d Appellant to be at the scene of the crime is not enough to infer common intention.

7. That, the trial Magistrate erred in law and fact for convicting Appellants on the ground that they are lovers who use to eat and drink together without sufficient evidence.

8. That, the trial Magistrate erred in law and fact for failure to consider the mitigations from the Appellants.

9. That, the trial Court erred in law and fact for convicting the Appellants basing on the contradictory evidence from the prosecution.

10. That, the trial Court erred in law and fact for deciding that, Exh.PEl, is the confession from the Z7d Accused. The Appellants prayed before this Honourable Court to allow the appeal and quash the conviction and sentence, and set-aside the Judgment of Musoma District Court. On 04/12/2017 when the appeal came for hearing, both learned Counsels, for the Appellants, Mr. Julius Mushobozi and for the Respondent, M/s Gisela Alex, learned State Attorney, were at a consensus that, the case against the 2nd Appellant, Ghati d/o Mwita Gibogo, was not proved beyond reasonable doubt. This Court, upon traversing the evidence on record, was satisfied that, indeed the case Page 3 of 23 ~ against the 2nd Appellant was not proved beyond reasonable doubt and proceeded to allow the Appeal against the 2nd Appellant in its entirety. Accordingly, the conviction and sentences imposed by the District Court of Musoma in Criminal Case No. 64 of 2012 on the 2nd Appellant were quashed and set aside. This Court ordered for the immediate release from prison of the 2nd Appellant, GHATI D/0 MWITA GIBOGO, and for her to be set at liberty forthwith unless she was being held in prison for some other lawful matters. In respect of the 1st Appellant, M/s Gisela supported his conviction on all counts. However, M/s Gisela invited this Court to invoke the provisions of section 388 of the Criminal Procedure Act Cap.

20 R.E 2002 and revisit the sentences imposed on the 1st Appellant in respect of the 2nd, 3rd and 4th counts, and for this Court to met out an alternative sentence by way of compensation. This Judgment is in respect of the appeal by the 1st Appellant DANIEL S/0 HANGA, in respect of both the conviction and sentence on all the four counts. Mr. Mushobozi submitted jointly on the 1st, 5th and 9th grounds of appeal that, the Musoma District Court failed to realize that the prosecution did not manage to establish the charged offences beyond any reasonable doubt. Mr. Mushobozi submitted further that, Exhibit D1 collectively, was received in evidence during cross-examination of PWl by the defence Counsel with a view to impeach his credibility with respect to a previous statement PWl had given to the Police. The record shows that PWl gave his statement (Exhibit D1) to the Police for the first time on Page 4 of 23 ~ 05/05/2014. Thereafter he gave another statement, a fresh one, not additional, on 14/12/2016. As per PW l's initial statement to the Police, dated 05/05/2014, there is nowhere he mentioned if he was sexually harassed or that one person called Tige d/o Juma was also sexually harassed, or that Monica d/o Bernard was also sexually harassed; or if that act ever occurred. The idea of being sexually harassed came to happen two years later when the victim (PWl) was reporting to

the Police. Mr. Mushobozi submitted further that, in PWl's initial statement as per Exhibit D1, on 05/05/2014 did not mention being beaten-up using a stick. It only came cup when he was testifying in Court that he was beaten-up using a stick. Mr. Mushobozi submitted further that, as per Exhibit D1, in his statement of 05/05/2014, PWl stated that he met with the 1st Appellant while at a shop and that he was taken to the torturing venue while he thought that they were going for a stride. However, as per the statement PWl gave to the Police on 14/12/2016, which is part of Exhibit D1 collectively, PW1 stated that he went with the 1st Appellant to the torturing area, thinking that he was going to buy food for the 2nd Appellant. Mr. Mushobozi submitted further that, another contradiction created by Exhibit D1 is that in PWl's statement he gave to the Police on 05/05/2014, PWl did not mention the 1st Appellant by his name in order ' ' to show that he knew him; and did not even mention if at the time he claims that he was being tortured, there was anybody else present. PWl came to mention the name of the 1st Appellant and that there was a guard / ~ Page 5 of 23 · in the TISS Office, where PW1 claims he was tortured, in his statement to the Police on 14/12/2016, which is part of Exhibit Dl collectively. Mr. Mushobozi submitted further that, as at page 15 of the typed proceedings of the

trial Court, PWl stated that, the 1st accused/Appellant Daniel Hanga took a big stick with which he assaulted PW1 on various parts of his body. According to Mr. Mushobozi, there is nowhere in his statement PW1 even mention this big stick. Seemingly it appears that, these facts are a fabrication to ensure that the accused is found guilty. Mr. Mushobozi submitted further that, PW6, Henry s/o Luiwana Machui, who was a guard at the TISS Regional Office Mara stated at page 42 of the typed proceedings of the trial Court that, Daniel, the 1st Appellant, went to the reception office where PW6 was doing his guard duty but PW6 does not say anything about PWl being tortured. But as per Exhibit Dl, the statement PWl gave to the Police on 14/12/2016; at page 4 of the statement, PWl stated that he was hit and fell down "alipigwa mtama'' and tortured before the guard to the extent that the guard (PW6) had to intervene. Mr. Mushobozi argued that, if the guard (PW6) saw all these to the extent of even intervening, he could have stated so while testifying in chief or while being cross-examined by the defence Counsel. The last contradiction pointed out by Mr. Mushobozi was with respect to the allegations of sexual harassment leveled by Ramadhani Marwa, Tige luma and Monica Bernard against the Appellants which took place at the John Bosco Area on 03 rd May, 2014. At the trial, PWl I ~ Page 6 of

23 _ (Ramadhani Marwa) stated that, the 1st Appellant while inside a Pajero Car with six (6) other people; ordered PW1 to undress PW4 and PW1 did so as at page 16 of the typed proceedings of the trial Court and they remained as naked as animals. The 1st Appellant also ordered Tige d/ o Juma (PW4) to undress PWl's clothes. In her testimony PW3, Monica Bernard as at 26 of the typed proceedings of the trial Court stated that she undressed PW1 and PW1 undress her (PW3). Mr. Mushobozi was surprised that, PW4, Tige Juma as at page 30 of the typed proceedings of the trial Court stated quite differently, that she undressed and also PW1 undressed himself. Mr. Mushobozi was of the view that, the pointed out contradictions are such serious in that first, they do not show consistency in the prosecution evidence. Secondly, as per the nature of the offence and the series of events, it could not have been easy for a witness, PW1, to highlight that he was beaten-up with a big stick; or as for PW4 to mention if she was undressed by another person; or to fail, as for PW1, to mention the name of the 1st Appellant whom he knew immediately and if he had done such a heinous acts against PWl. Mr. Mushobozi was of the firm view that, these contradictions show that, the events as narrated by PW1 never happened. Mr. Mushobozi prayed the 1st, 5th and 9th grounds of appeal be allowed. Submitting on the

2nd , 3rd , 6th, 7th , 8th and 10th grounds of appeal which relate to poor evaluation of the evidence by the learned trial Magistrate, Mr. Mushobozi stated that, all the prosecution witnesses, specifically PW1, PW2 and PW4, stated that, the act of sexual Page 7 of 23 ~ . , harassment happened inside a Pajero Car at 10:00p.m., at night at John Bosco's Primary School Area closer to Police Line within Musoma Town. According to Mr. Mushobozi, the vehicle in which it is claimed that the sexual harassment took place was not shown to the Court. Mr. Mushobozi submitted further that, PWl and PW3 stated that the 1st Appellant was communicating through a phone and was sending SMS to PW3. According to Mr. Mushobozi, there is nowhere the said mobile phone or the messages were tendered in evidence to establish this fact, as at page 17 of the typed proceedings. Mr. Mushobozi submitted further that, those against whom the acts of sexual harassment are alleged to have been committed are PWl, PW3 and PW4. However, it is only PWl who reported about the incident to the Police. Mr. Mushobozi was of the firm view that, for grown-ups against who such demeaning things had been done, not to go to the Police to report, it seems that the allegations were more of fiction than reality. Mr. Mushobozi submitted further that, even the interpretation of sexual harassment as per the charge sheet and the

evidence on record, was highly misplaced. A person is said to be sexually harassed, when that person has committed the act against such other person for his own benefit on for the purposes of demeaning the other person. Mr. Mushobozi submitted further that, the 1st Appellant is said to have ordered the victim to undress; but the evidence by the prosecution was contradictory. Had the learned trial Magistrate properly analyzed the evidence he would have come to the finding that the charged offence did not exist. ~ Page 8 of 23 On the 4th ground of appeal, Mr. Mushobozi prayed that, the Court quash the conviction and set aside the sentence against the Appellants and in the alternative, this Court to find that the sentence meted out against the Appellants was rather excessive; and in the event this Court to step into the shoes of the trial Court and impose a fine instead of imprisonment. In reply, Ms. Gisela stated that, the Respondent does not support the sentence against both Appellants for the 2nd, 3rd and 4th counts. M/s Gisela stated further that, as per the section under which the Appellants were charged, that is, section 138(0)(1) of the Penal Code, Cap. 16 R.E. 2002, the punishment given is in the alternative either imprisonment or fine which is to be determined by the Court. However, as per the Judgment by the Musoma District Court dated 22/08/2017, a prison term of five

years was meted out on the Appellants without the option for compensation, which is contrary to the requirements of the said section. M/s Gisela prayed that, this Court as 1st Appellate Court invokes section 388 of the Criminal Procedure Act; Cap. 20 R.E. 2002, and revisit the sentence meted out against the 1st Appellant in respect of the 2nd, 3rd and 4th counts and impose an appropriate sentence as per the law. M/s Gisela submitted further that, the manner in which the statement (Exhibit D1 collectively) were received in evidence was improper. According to M/s Gisela, in the proceedings there is nowhere the prosecution witness who tendered the statement prayed and was willing to tender them in evidence as part of his evidence. Given this fact, it would appear clearly that, the witness does not recognize the statement. The record shows that the witness gave statement to the Police twice and thus, Page 9 of 23 ..• it was received in evidence contrary to the law. In buttressing her submissions on this point, M/s Gisela referred this Court to the provisions of Section 164 (1) (c) of the Tanzania Evidence Act; Cap.6 R.E. 2002, which provides that a former statement inconsistent with any part of evidence can be used as proof in impeaching the credibility of a witness. M/s Gisela submitted further that, in the previous statement by PW1, the witness stated about the assault he claims

to have suffered in the hands of the 1st Appellant. As at page 20 of the typed proceedings of the trial Court, PW1 stated that Daniel, the accused/! st Appellant, used a big stick with which to beat PW1 on various parts of his body. As per the statement dated 05/05/2014, PW1 stated that one person came to him and asked him to get into the car for a ride and upon arriving at the buildings of the National Security; he started biting him up until he lost consciousness. M/s Gisela stated further that, as per the second statement of 14/12/2016, PW1 stated that Daniel Hanga, the 1st Appellant, came to the shop area, and the 2nd Appellant told PW1 to take a Hot Pot to get her some food, and they left together with the 1st Appellant; and upon reaching the offices of the National Security, the 1st Appellant took PW1 inside a hut, and asked PW1 to stand on his toes and started assaulting · him while switching on the fan inside the hut until the guard told the 1st Appellant to take PWl outside. PWl stated also that he was asked to roll over about five times on the floor while the 1st Appellant was kicking him on his head, and then the 1st Appellant asked PWl to stand on his one leg and at that his sister, Ghati was at that time passing-by that area, where PW1 claims that the 1st Appellant was assaulting him. Page 10 of 23 M/s Gisela submitted further that, as per the statement, it is true

that PWl did not mention the name of the 1st Appellant when giving his statement to the Police on 05/05/2014 but did mention the name of the 1st Appellant when giving the second statement to the Police on 14/12/2016. In his evidence, PWl stated that, he gave both statements while under great pains and therefore there are certain facts which he failed to narrate to the Police, since up to the time PWl was giving the statement to the Police he had yet to receive treatment, which he received after having been given a PF3 on the 05/05/2014, and that after being assaulted he went to the home of 2 nd Appellant where PWl live. PWl upon seeing that the pain was becoming unbearable he decided to go to hospital as per page 17 of the typed proceedings. M/s Gisela stated further that, this fact was not cross-examined and as a matter of legal principle, it is taken as proven fact as it was stated in Criminal Appeal No. 211 of 2010 between Deogratias Nicholaus@ leshi & Another v. Republic which held that; "facts not cross-examined are taken as admitted facts." M/s Gisela submitted further that, there was no any inconsistent between what PWl stated in Court and what he had stated in his statement to the Police. M/s Gisela submitted further that, PW6 confirmed that the 1st Appellant and PWl went to the offices of Intelligence and that PW6 opened the gate for them and that they came on board a

red Pajero Car with Reg. No. T. 925 AHR as at page 42 of the typed proceedings. M/s Gisela stated further that, it is worth noting that although PW6 had mentioned the date as 05/05/2014, upon being cross-examined he Page 11 of 23 stated that it was in 2014 May, 3 rd . On the same day of 03/05/2014 PW2, WP. 4652 D. Heriet stated that, she saw a Pajero red car coming from the TISS Offices toward the Central Police and that its driver, the 1st Appellant greeted PW2 but PWl who was inside the car did not see PW2. M/s Gisela submitted further that, the facts about differences in the time of the events is such minor as it does not remove the fact that the 1st Appellant and PWl went to the TISS offices and as per the PF3 (Exhibit PE3), PWl was indeed assaulted. Dr. Ritta, PW7, who had medically examined PWl, found PWl with wounds on both of his legs. As per PW7, the wounds were caused by a blunt object and this amounted to assault. As for the second category of the combing grounds of appeal, Nos. 2nd , 3rd , 6th , 7th , 8th and 10th , M/s Gisela stated that, the trial Court did not base its conviction on Exhibit Pl. M/s Gisela submitted further that, there is nowhere it is shown that the trial Court relied on the evidence of phone communication and SMS between the 1st Appellant and PW3 as it is being claimed. However, M/s Gisela conceded that, PW3 and PW4 did not report to the Police

about the sexual harassment incident. This creates doubts if ever the alleged acts were committed against PW3 and PW4. M/s Gisela submitted further that, however by the other victims of the alleged assault not going to report to the Police it did not mean that those acts did not occur. M/s Gisela submitted that, the prosecution witnesses only talk about the 1st Appellant ordering PWl and PW3 to remove their clothes and considering that PW4 was a mother to PW3, this constituted sexual Page 12 of 23 harassment. Ordering PW4 to be naked in front of the 1st Appellant, PWl, PW3 and PW2 if at all they were present, this also amounted to sexual harassment. M/s Gisela submitted further that, it is true that the red Pajero Car was not tendered as exhibit to prove its existence, but there was no dispute over the existence of the said car or given that various witnesses including PWl, PW2 and particularly PW6 who was familiar of the TISS office properties testified positively about the existence of such vehicle, which is the property of TISS Office in Musoma. It was not disputed that, PW3 and PW4 boarded into the car which was being driven to the John Bosco Area by the 1st Appellant; and that, it was the 1st Appellant who was issuing orders to PWl, PW3 and PW4 to undress. M/s Gisela submitted further that, the prosecution supports the conviction and sentence against the 1st Appellant on

all counts. M/s Gisela prayed that as for the sentence against the 1st Appellant in respect of the 2nd , 3rd and 4th counts, this Court to find it proper to exercise its powers under section 388 of the Criminal Procedure Act, Cap. 20 R.E. 2002, and revisit the sentence by imposing the alternative sentence of compensation instead of imprisonment. In rejoinder Mr. Mushobozi submitted that, neither PW6 nor any other witnesses who gave evidence stated that they witnessed PWl being tortured. Mr. Mushobozi referred this Court to the decision in Criminal Appeal No. 211 of 2010 between Deogratius Nicholaus & Another vs. Republic on facts not cross-examined on to be taken as being Page 13 of 23 \ admitted. Mr. Mushobozi however, maintained that it is not always that they have to cross-examine on each and every fact even on facts which are irrelevant, and therefore it should not be considered that by not having cross-examined on certain facts then those facts to be taken as having • been admitted. On the PF3 (Exhibit PE3), Mr. Mushobozi submitted that, it was taken two days after the alleged facts thus reflecting something totally different from what is stated in Exhibit D1 where PW1 did not state anything about the nature of the instrument used to inflict injuries on him. Mr. Mushobozi stated further that, if one a Mr. Cheupe who is said to have been inside the car had either been

brought by the prosecution to testify at the trial or if there had been a statement as to his whereabouts during the trial, being a neutral person, to testify as to the truth of the fact, it would have been quite a different matter. On the respective submissions by the learned Counsels in support and rival to the respective grounds of appeal, clearly they reveal the existence of two crime scenes in this matter. The first crime scene is where the offence of assault causing actual bodily harm, alleged committed by the 1st Appellant at the TISS building offices at Musoma. The second crime scene is the one where the offence of sexual harassment is alleged to have been committed by all the Appellants while inside a moving red Pajero car with Registration No. T 925 AHR. Starting with the first crime scene where the offence of assault causing actual bodily harm is alleged to have been committed by the Page 14 of 23 Appellants, the statement PW1 made to the Police on 14/12/2016 shows that the offence was committed at the Offices in the TISS Building at Musoma in the presence of a TISS Security Guard one Henry Luiwana Machui (PW6). PWl stated further that, he was tortured by the 1st Appellant in the TISS Security Guard Room and having been severely tortured by the 1st Appellant, he was rescued by PW6, who pleaded with the 1st Appellant to stop torturing PWl. Unfortunately in his

evidence PW6 denied to have witnessed any torture on the material day. In his evidence PW6 stated that, on the material day while on duty, the 1st Appellant and PWl arrived at TISS Offices-Musoma and had some conversation at the Reception Office within the TISS Building-Musoma. With due respect, the contradiction in the evidence by PW1 and PW6 casts some doubts on the prosecution case as to whether PW1 was assaulted by the 1st Appellant at TISS Building-Musoma on the material day as alleged. It is also the findings of this Court that, PWl made two conflicting statements to the Police on how he was tortured at the TISS Building Musoma. The first Statement PWl made to the Police was on 05/05/2014 and the second one on 14/12/201, which were collectively admitted in evidence at the trial as Exhibit D1. These two statements manifest some irreconcilable contradictions. In the statement dated 14/12/2016, PWl stated that he was tortured in the security guard room in front of the TISS Security Guard (PW6) and that he was rescued by the same TISS Security Guard (PW6). However, in the statement PW1 made to the Police on 05/05/2014, this particular fact of being tortured does not feature therein. This Court is therefore left wondering how could Page 15 of 23 V the same person who claims to have been tortured make such inconsistent statements to the Police about the incident. During the

trial as per the record, after the statement dated 05/05/2014 having been read over to PW1 by PWS, PW1 is recorded to have stated that, such statement was not correct and therefore he requested PWS to record a new statement dated 14/12/2016. In his Police Statement recorded on 14/12/2016 some facts were added from the previous statements and some were omitted. In PW1 giving reasons to PWS for doing so, PW1 stated that, his statement dated 05/05/2014 was not correctly recorded because it was recorded while he was still ill. In my considered view, the reasons given by PWl for incorrectly recorded previous statement are not sufficient to justify the contradictions PWl himself had created in his Statements to the Police. PWS stated further that, initially PWl was not cooperative in making his statement on grounds that he was threatened by some of the Police Officers to the extent that he was even put into remand custody at sometime. It is only after PWS having properly explained to PW1 about the seriousness of the case that, and there was a team of investigators from the Prime Minister's Office and some persons from the headquarters of Human Rights, that is when PW1 agreed to cooperate in giving his statement. All these circumstances create doubts on how the case was investigated. Furthermore, rather strangely, even the procedures adopted by the trial Court in admitted the two statements by PW1 in evidence as Exhibit D1 collectively leaves a lot to be desired and as M/s Gisela rightly submitted it was improper. The record shows very clearly that the defence Page 16 of 23 only intended to use the statements for purposes of impeaching the credibility of PWl under section 164 of the Evidence Act Cap.6 R.E.

2002. That being the case therefore it was not necessary for the documents to be admitted in evidence under the provisions of section 164 of the Evidence Act Cap.6 R.E.

2002. In any event even if the trial Court found it necessary to so admit the statements in evidence, it could have done so by admitting them in evidence at the prosecution evidence. It was highly unprocedural in my view for the prosecution witnesses to tender the statements as defence evidence. Much as PWl does deny having recorded both statements, the procedure invoked by the trial Court in admitting the statements in evidence was highly improper. The statements having improperly been recorded and having been un-procedurally admitted in evidence have therefore occasioned a miscarriage of justice and as such the Appellants did not receive a fair trial. The proceedings of the trial Court on the admissibility of statements by PWl which were admitted in evidence and marked as Exhibit Dl collectively are severely wanting and must accordingly be expunged from the record. This Court finds further that, the Medical Examination Report (PF3) which was admitted in evidence as Exhibit P3 was not that watertight as to establish the fact of assault of PWl. The general physical examination conducted by the Medical Doctor on PW1 and recorded on the PF3 was found to be "Haemaloma." In the course of the trial, it is unfortunate that PW7 never explained the meaning of this medico-science term. It is unclear if the Medical Doctor intended to write "Haematoma" but ended up writing "haemaloma." On

the part of the PF3 which provides for Page 17 of 23 ~ entering the description of site, situation, shape and depth of injuries sustained, the Medical Doctor commented as being "Painful General the Body and Haemali both legs." Still, it is unclear as to what is the meaning this medico-science term "Haemali." Clearly, if PW7 had explained to the meaning of those terms, and in my considered view, it was pertinent for PW7 to do so, it would have greatly assisted not only the trial Court but also this Court in understanding and appreciating the exact meaning of the terms and their implication in so far as the injuries sustained by PWl are concerned. Furthermore, the PF3 shows the approximate age of injuries found on PWl to be "three {3} days ago." It is baffling how the Medical Doctor came to know about the age of the injuries PW1 sustained. It seems, as PW7 stated, that, she was told so by the patient himself. If this is the case it means therefore that PW7 did not actually medically examine PWl in his body to find out about the age of the injuries alleged sustained by PW1. PW7 upon being asked by Mr. Philipa, learned Advocate for the accused as to why PW7 did not fill-in the PF3 her Medical Registration Number, PW7 responded that, she had no Registration Number, that is why she did not fill it in the PF3 (Exh.P3). Clearly, and with due respect, PW7 was not a competent person to

fill-in the PF3 which was admitted in evidence at the trial Court as Exhibit P3. The 1st Appellant, while testifying at the trial as DW3, stated that, PW7 was not the one who medically examined PWl. According to DW3, PW1 was medically examined by one a Dr. Tony. PW7 simply filled-in the PF3. This revelation clearly lay further assault on the integrity of PF3 (Exhibit P3) and PW7 and thus contributing to further doubts cast on the prosecution case. It is Page 18 of23 ✓ ... -· manifestly clear from the inconsistencies pointed out herein above, that most probably the assault complaints laid by PWl against the 1st Appellant were a mere fabrication. As to the second crime scene regarding the offence of sexual harassment, it was a moving red Pajero car with Registration No. T 925 AHR, which on board there were six (6) people, namely; the 1 st Appellant as its driver, PWl, PW3, PW4, DW2 and one Christopher Sanya@ Cheupe. The 1st Appellant when testifying at the trial as DW3 stated that, his car a Pajero make did not have capacity of carrying six (6) passengers since it was designed to carry only five passengers. Unfortunately, the red Pajero motor car was not brought to the Court during the trial for the Court to satisfy itself as to whether it had a capacity of sitting six passengers and thus to provide a suitable place for the act of sexual intercourse to be conducted therein. It is

also the finding of this Court that, the evidence by PWl, PW3 and PW4 create doubts on the fact of the undressing of their clothes. PWl and PW3 stated that, PWl and PW4 were forced by the 1st Appellant to undress each other, while PW4 stated that, the 1st Appellant commanded PWl and PW4 to each undress their clothes. It was only PW3 who was forcibly undressed her ''khanga'' by the 1st Appellant. In my considered view, the evidence by PWl and PW3 contradict with the evidence of PW4 on how PWl and PW4 clothes alleged were undressed. It is also unclear how they were threatened by the 1st Appellant to the extent of being compelled and to agree to undress. It is also unclear, why didn't they raise any alarm even immediately after they had been dropped Page 19 of 23 ~ .. at home. It is also baffling and incomprehensible how the 1st Appellant - managed to drive the red Pajero car while at the same time grabbing the ''khanga'' from PW3. It is also unclear why both PW3 and PW4 did not report to the Police about the incident of sexual harassment. All these questions whose answers have not been forthcoming from the prosecution case, cast serious doubts on the prosecution case whether indeed PW1, PW3 and PW4 were sexually harassed by the 1st Appellant while inside the red Pajero motor car. It is also the finding of this Court that; the investigation took unnecessarily long to be completed

and this without any plausible explanation. As per the charge sheet on record, the offence was committed on 03/05/2014 but PW1 reported the incidence to the Police on 05/05/2014 and the Appellants were arrested in February 2017. It has not been explained if at all the Appellants had absconded from Musoma immediately after the incidence or were still in Musoma all that time. I do not with due respect, find the reasons for the delay as explained by PW1 and PWS to be sufficient. It seems to me that, the either Police was not keen in investigating this case or had lost interest in pursuing the matter but only sprung into action only after having realized that, the Team from the Prime Minister's Office and Members of Human Rights had decided to pursue an independent investigation into the incident. It is not that farfetched to state that this case was not properly investigated by the Police and as such the Police just arraigned the accused persons before the trial Court merely to show that it had completed its work. Page 20 of 23 stated that it was in 2014 May, 3 rd . On the same day of 03/05/2014 PW2, WP. 4652 D. Heriet stated that, she saw a Pajero red car coming from the TISS Offices toward the Central Police and that its driver, the 1st Appellant greeted PW2 but PWl who was inside the car did not see PW2. M/s Gisela submitted further that, the facts about differences in the time

of the events is such minor as it does not remove the fact that the 1st Appellant and PW1 went to the TISS offices and as per the PF3 (Exhibit PE3), PW1 was indeed assaulted. Dr. Ritta, PW7, who had medically examined PWl, found PW1 with wounds on both of his legs. As per PW7, the wounds were caused by a blunt object and this amounted to assault. As for the second category of the combing grounds of appeal, Nos. 2nd , 3rd , 6th , ih, 8th and 10th , M/s Gisela stated that, the trial Court did not base its conviction on Exhibit Pl. M/s Gisela submitted further that, there is nowhere it is shown that the trial Court relied on the evidence of phone communication and SMS between the 1st Appellant and PW3 as it is being claimed. However, M/s Gisela conceded that, PW3 and PW4 did not report to the Police about the sexual harassment incident. This creates doubts if ever the alleged acts were committed against PW3 and PW4. M/s Gisela submitted further that, however by the other victims of the alleged assault not going to report to the Police it did not mean that those acts did not occur. M/s Gisela submitted that, the prosecution witnesses only talk about the 1st Appellant ordering PWl and PW3 to remove their clothes and considering that PW4 was a mother to PW3, this constitute~al Page 12 of 23 greeted each other. PW3, Monica Bernad stated that, while inside the said car she witnessed

PW2 greeting the 1st Appellant and that PW2 came closer to the car but did not see them. PWl and PW4 stated that, at all material time, the lights inside the said car were on. If that being case, it is baffling why PW2 did not see the victims who were inside the said car if at all they were indeed inside the said car, where they allege to have been sexually harassed. The evidence by PW2 therefore cast doubts on the prosecution case as to whether the victims were inside the said car at the material time PW2 claim that she saw the said motor vehicle heading to the Central Police Station-Musoma and if indeed the victims who claim to have been inside it were sexually harassed inside the said motor vehicle on the fatefu I night. I am at one with the submissions by M/s Gisela who conceded that, the learned trial Magistrate erred in law in imposing on the Appellants a custodial sentence of five (5) years in prison without giving them the option of fine or compensation as dictated under the provisions of section 138D(l) of the Penal Code, Cap.16 R.E. 2002, which provides thus; "{1) Any person who/ with intention/ assaults or by use of criminal force/ sexually harasses another person/ or by the use of words or actions✓ causes sexual annoyance or harassment to such other person/ commits an offence of sexual harassment and is liable on conviction to imprisonment for a term not exceeding

five years or to a fine not exceeding two hundred thousand shillings or to both the fine and imprisonment, and may also be ordered to pay Page 22 of 23 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." {the emphasis is of this Court) The above provisions of the law give a trial court a wide sentencing latitude ranging from imposition of a custodial sentence or fine or both, as well as payment of compensation at a rate to be determined by the court. In the instant case, the learned trial magistrate did not consider the available sentencing options under the law but elected to only impose a custodial sentence, which as it has turned out was manifestly unfair. However, the prosecution having failed to prove its case against the 1st Appellant beyond reasonable doubt, the appeal by the 1st Appellant succeeds, It is hereby allowed. The Judgment and sentences imposed on the 1st Appellant by the District Court of Musoma in Criminal Case No. 64 of 2017 are hereby quashed and set aside. The 1st Appellant, DANIEL S/O HANGA is hereby released from all offences charged as set out in the four counts. The 1st Appellant DANIEL S/O HANGA shall immediately be released from prison where he is being held and set at liberty forthwith unless he is being held there for some other lawful matters. It is so ordered. • ••••••• R.V. MAKARAMBA

JUDGE 21/12/2017 Page 23 of 23