Judgement Criminal Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 38915 OF 2023 (C/F Criminal Case No. 87 of 2022 in the District Court of Mwanga at Mwanga) HASSAN ABUBAKARI SHEMDOE.......................................... APPELLANT VERSUS REPUBLIC....………………………………………………….… RESPONDENT JUDGEMENT 9th September and 28th October 2024 MONGELLA, J. The appellant was arraigned at the District Court of Mwanga at Mwanga (henceforth, the trial court) for the offence of grave sexual abuse contrary to Section 138 C (1) (b)and (2) (b) of the Penal Code [Cap 16 R.E. 2022)]. The particulars of the offence as depicted from the charge were that: on 20th day of June 2022 at or about 17:000hrs at Mangara village within Mwanga district in Kilimanjaro region, the appellant put his male organ on the buttocks of a 3-year-old boy (the victim, or PW2 hereinafter) without his consent. The appellant denied the charge levelled against him. To prove its case, the prosecution Page 1 of 21 paraded 3 witnesses and tendered one (1) exhibit, which was admitted as Exhibit PE1. The Prosecution’s account was as follows: on the fateful day of 20.06.2022 about 16:00hrs, PW1, the mother of the victim, took the victim to the appellant’s home so that she would go to work. It was around such time that the appellant smeared saliva on the victim’s buttocks and took him to his bed. The appellant undressed himself and undressed the victim’s underwear/shirt and inserted his penis into his buttocks. That, at around 17:00hrs, PW1 came to pick up the victim and went home with him. At home, the victim asked PW1 for food whereby he was instructed to sit on a chair, but he was unable to sit properly. Then the victim started to cry and PW1 inquired on why he was crying. It was then that the victim narrated to her that the appellant had sodomized him. PW1 notified the appellant’s mother and took the victim to Kisangara Police post where she was issued a PF3 to attend examination at a hospital. The examination revealed that the victim was not sodomised, rather the appellant was preparing himself to do so. The appellant was then arrested by a militia man who is also the victim’s father. Allegedly, PW3 interviewed the appellant who admitted to have attempted to sodomize the victim. The mentioned appellant’s cautioned statement was tendered and admitted as exhibit PE1. PW3 also followed up on the PF3 which did not show that the victim was sodomised. Page 2 of 21 The appellant stood for himself in his defence. He narrated that on the material day whose date or month he did not remember, PW1 left her child and another child at his home without any explanation. He said that the victim ate soup that ought to be eaten by another child and he beat him. That, PW1 then came back about 30 minutes later and took both children. Later, PW1 reported to his mother that he (the appellant) had carnal knowledge of the victim. His mother tried observing the child and inserted her fingers into his anus. Thereafter the victim was taken to the hospital and he was arrested. The appellant insisted that he had only beaten the victim and had not carnally known him. The trial court found the appellant guilty and proceeded to convict and sentence him to serve 20 years in prison and to pay compensation of TZS. 1,000,000/=. Aggrieved by said decision, the appellant has preferred this appeal on the following grounds: 1. That, the learned trial Magistrate grossly erred both in law and fact in failing to note that, the PW1 and PW2 (The victim of the alleged offence) gave a very highly improbable and suspicious evidence which was supposed to be approached with great caution as it demonstrates a manifest intention or desire to lie in order to achieve or attain a certain end. 2. That, the learned trial Magistrate grossly erred both in law and fact in using an uncertain exhibit and ambiguous proceedings (Irregular) to find and hold that, the appellant admitted to the Page 3 of 21 charged offence in Exh.PE1 (Cautioned statement) Yet, it is unborne evidence. [Sic] 3. That, the learned trial Magistrate grossly erred in both in law and fact when failed to note that it was of utmost importance to re - summon PW1 and PW2 so as to re - testify in support of the new charge, since the evidence on record was in support of the previous charge. 4. That, the learned trial magistrate failed to note that, there were variance between the charge and the evidence on record. As the charge displays that, the incidence occurred at “Mangara village” While PW3 testified that, the said incidence took place at " Kisangara village”. 5. That, the learned trial Magistrate grossly erred both in law and fact in using, weak tenuous, incredible and wholly unreliable prosecution evidence as a basis of the appellant's conviction. 6. That, the learned trial magistrate grossly erred both in law and fact in convicting and sentencing the appellant despite the charge being not proved beyond reasonable doubt against the appellant and to the required standard by the law. When the appeal came for hearing, the appellant disclosed that he had no intention of submitting on his grounds of appeal, he prayed that they are adopted as his submissions. Ms. Edith Msenga, the State Attorney that represented the respondent was given the Page 4 of 21 opportunity to reply on the grounds of appeal whereby she opted to submit orally. Ms. Msenga commenced her submissions by drawing this Court’s attention to the provision under which the charge levelled against the appellant was preferred. She averred that the provision was Section 138 C (1) (b) and (2) (b) of the Penal Code, Cap 16 R.E. 2022 and not R.E. 2019 as stated in the appellant’s Petition. She contended that the evidence by prosecution was based on the offence created under Section 138 C (1) (d) and (2) (b) of the Penal Code. In the premises, while accepting the anomaly, she prayed for the Court to take note of Section 388 of the Criminal Procedure Act [Cap 20 R.E 2022] which cures the irregularity. She argued so on the ground that the appellant’s rights were not prejudiced by the error since the particulars in the charge explained clearly the type of offence the appellant was charged with, rendering him to be aware of the exact offence he was charged with and thereby defended against the contents of the particulars of the offence. She fortified her submission by the case of Petro Amsi vs. The DPP (Criminal Appeal 109 of 2023) [2024] TZHC 152 (7 February 2024). With regard to the grounds of appeal, Ms. Msenga commenced by addressing the 2nd ground in which the appellant challenged the manner in which the cautioned statement was received, terming it as unborn evidence. She averred that as reflected in proceedings, PW3 tendered the appellant’s cautioned statement and the same was not objected rendering the statement to be admitted as exhibit PE1. She contended that in accordance with the decisions Page 5 of 21 of the Court of Appeal, where a witness is tendering a cautioned statement, objections are to be made prior to the admission and not afterwards. She cemented her averment with the case of Nyerere Nyague vs. Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012). The learned State Attorney alleged that the statement was procedurally admitted. Explaining her stance, she averred that it was cleared before admission; the witness explained how the exhibit was obtained and how it reached the court; it was identified accordingly and tendered in court.; the appellant was asked whether he had any objection and he said he did not have any objection. Arguing further in the appropriateness of the statement, she contended that the same was also recorded within half an hour after being arrested. In that respect, she concluded firmly that all the procedures were duly observed. Addressing the 4th ground, as to variance between the charge and the evidence on record, especially regarding the crime scene; Ms. Msenga denied the assertion averring that PW3 clarified that the offence occurred at Kisangara area within Moshi district. She added that if his testimony is read together with that of PW1, who explained that they live in Kisangara area in Maranga area, it can be seen that these are not two different places. Referring to the record she contended further that the same shows that the offence occurred at Kisangara area at the appellant’s home, which neighbours the victim’s home. Page 6 of 21 With respect to the 1st ground, the learned State Attorney faulted the appellant’s assertion that the prosecution evidence was full of lies attempting to achieve a certain end. In her view, the prosecution witnesses were credible and the trial court which is better positioned to assess the credibility of the witnesses never found them incredible. On the other hand, she averred that this Court as an appellate court can go through the prosecution case and assess its credibility. Ms. Msenga averred further that PW2, narrated how the incident of grave sexual abuse was committed and how he reported the same to his mother. She prayed for the Court to consider that the victim was a 3-year-old child and that the appellant put saliva on his buttocks and did the act on his buttocks. Ms. Msenga further found the victim’s evidence corroborated by that of PW1, who explained that after being informed, she took PW2 to the hospital whereby she was told that there was an attempt to do something on her child, but the child was not penetrated. Arguing further, she contended that the evidence of PW1 and PW2 resembles that of PW3. In that respect, she had the view that the prosecution evidence showed how the trial court found the offence to have been proved against the appellant. She then referred the Court to the case of Goodluck Kyando vs. Republic [2006] TLR 363 averring that all witnesses are entitled to credence. In that respect she contended that PW2 ought to be regarded as a credible witness as he immediately reported the incident to his mother and mentioned the appellant as the culprit. Page 7 of 21 She cemented her averments with the case of Marwa Wangiti Mwita and Another vs. The Republic (Criminal Appeal 6 of 1995) [2000] TZCA 4 (12 June 2000). Contesting the 3rd ground, Ms. Msenga stated that initially, the appellant was charged with unnatural offence under 154 (1) (a) and (2) of the Penal Code [Cap 16 R.E. 2019] and the matter proceeded to hearing whereby PW1 and PW2 adduced evidence which instead of proving the unnatural offence, appeared to talk about grave sexual abuse. So, as evident in proceedings the prosecution prayed to amend the charge under Section 234 (1) of the Criminal Procedure Act [Cap 20 R.E. 2022]. The trial court granted the prayer and allowed substitution of the charge to the offence of grave sexual abuse, which the appellant was eventually convicted of. She alleged under Section 234 (2) of the CPA, there are factors to be considered, which are: the charge is to be read to the accused; the accused can demand or pray for the court to re-call the prosecution witnesses who have already testified, to testify afresh or be cross-examined due to the changes, but the court can also allow the prosecution to re-call its witnesses and adduce evidence afresh. She thus challenged the appellant for not seeking for witnesses to be re-called which is why the Court proceeded to record evidence of other witnesses. In in the premises, found no irregularity being occasioned by the prosecution or the court. Page 8 of 21 Jointly submitting on the 5th and 6th grounds, the learned State Attorney averred that the appellant was rightfully convicted and the case against him was proved beyond reasonable doubt. Commenting on the position of the law, she submitted that the ingredients of the offence as provided under Section 138 C (1) (a) & (2) (b) of the Penal Code, Cap 16 RE 2022, which are, use of any body part for sexual gratification against another person, which does not amount to rape, were proved. Substantiating her position, she contended that three witnesses were called by the prosecution whereby, PW1, the mother of the victim, explained how she took her child to the appellant when heading to work. That, when she went to collect the child, the child explained to her how the sexual act was committed to him, and that is when she took him to the hospital whereby, she was told that the child was not penetrated, but was about to be penetrated in her anus. Ms. Msenga added that, PW2 explained that the appellant, on the fateful date, smeared saliva on her buttocks/anus and then did the act of putting his male organ on his buttocks. Referring to PW3’s testimony, she averred that PW3, the investigator, explained to have interrogated the appellant who confessed into smearing saliva on the victim’s buttocks and putting his male organ thereat, but refused to have penetrated him. In the circumstances, she prayed for the Court to note that the provision that the appellant was convicted on does not require consent as the victim was only aged 3 years. In addition, she prayed for the Court to consider Section 127 (6) of the Evidence Page 9 of 21 Act, Cap 6 R.E. 2022, which states that in sexual offences, the evidence of the victim is the strongest evidence and can be used by the court to convict the accused. She further prayed for this Court to consider various decisions by the Court of Appeal settling the position that the accused’s confession is the strongest evidence in criminal offences and in this matter, the accused confessed putting his male organ on the victim’s buttocks. She finalized her submissions by praying for the Court to dismiss all the grounds of appeal and uphold the conviction and sentence against the appellant. I have considered the grounds of appeal adopted as the appellant’s submissions as well as the respondent’s submissions thereto. In resolving this appeal, I will first consider the 3rd, 4th and 2nd grounds in such order. I will address the 1st, 5th and 6th grounds collectively as I find them intwined as all of them address concerns on the evidence and credibility of witnesses. With respect to the 3rd ground, the appellant faulted the trial court for not recalling PW1 and PW2 after the charge was amended. The prosecution countered that the process of recalling a witness is initiated by the accused person demanding the same or where the prosecution requests and the court will then proceed to permit the witness to be called. With position of the law, she challenged the appellant for not demanding the witnesses to be recalled. Page 10 of 21 Considering the trial court record, I find it undoubted that the appellant was initially charged for unnatural offence under Section 154 (1) (a) and (2) of the Penal Code. The proceedings of the trial court reflect that the prosecution sought to substitute the charge under Section 234(1) of the Criminal Procedure Act. This request appears to have been made on 28.10.2022 and is reflected on page 11 of the typed proceedings. The concerns raised are on why the trial court never directed for PW1 and PW2 to be recalled as witnessed after the said amendment. The procedures that follow after amendment or substitution of a charge under Section 234(1) of the Criminal Procedure Act are set out under Section 234(2) of the same Act. The provision states: “(2) Subject to subsection (1), where a charge is altered under that subsection- (a) the court shall thereupon call upon the accused person to plead to the altered charge; (b) the accused person may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross- examined by the accused person or his advocate and, in such last-mentioned event, the prosecution shall have the right to re- examine any such witness on matters arising out of such further cross-examination; and (c) the court may permit the prosecution to recall and examine, with reference to any alteration of or addition to the charge that may be allowed, any witness who may have been examined unless the court for any reason to Page 11 of 21 be recorded in writing considers that the application is made for the purpose of vexation, delay or for defeating the ends of justice.” The proceedings of the trial court show that after the charge was amended, it was read to the appellant. However, neither the appellant nor the prosecution sought for PW1 and PW2 to be recalled as witnesses. As evident, the provision does not mandate the court to inform the accused person on whether he wishes to recall the witness or not although it could be an issue of basic courtesy. The omission to inform the accused person on such right is thus not a recognized irregularity and would not prejudice the accused person. This is because even if the trial court does not address the appellant on said issue, he still could have stated anything in regard to what transpired in court. In Denis Joseph @ Saa Moja vs. Republic (Criminal Appeal No. 121 of 2021) [2023] TZCA 104 (13 March 2023) TANZLII, the Court of Appeal faced an almost similar situation whereby the Appellant challenged on non-compliance with Section 234(2) of the Criminal Procedure Act. The Apex Court noted that indeed the trial court only addressed him in regard to his right to call a witness for cross examination and not in regard to fresh testimony, but he was not prejudiced by the omission. The Court thus stated: “Although the appellant has not explained the manner in which the said provision has been violated, reading from the excerpt above, we have found that the trial court did not address the appellant on whether PW1 could be recalled to Page 12 of 21 give his evidence afresh. He was only addressed on the issue of cross-examination of PW1 following substitution of the charge where the count of unnatural offence was added. We have considered this complaint and found that the omission did not prejudice the appellant for the following reasons: Firstly, because he was addressed his right to recall PW1. Even if the trial court did not fully address him, had he had anything he wanted PW1 to clarify, he would have aired it out. Secondly, PW1 was not an eye witness to both offences as he was only informed what happened by PW2.” [bolded for emphasis] In reference to the above cited decision, even if I were to state that the trial court ought to have informed the appellant of the right to recall PW1 and PW2, the appellant was not prejudiced. This is because, the evidence of PW1 which was to effect that PW2 was not carnally known against order of nature, was obviously not in line with the former charge of unnatural offence. As to PW2, although his statement seemed to reflect that he was unnaturally known, I do not find that re-calling him, a mere 3-year-old boy, for either cross examination or fresh evidence would have made any difference. Owing the observations I have made hereinabove; I find the 3rd ground lacking merit. Under the 4th ground, the appellant claims there being variance between the charge and the evidence on the place the incident took place. The appellant alleged that the charge indicates the incident taking place at Mangara village while PW3 stated that the incident took place at Kisangara village. Ms. Msenga opposed this stance alleging that PW3’s evidence is corroborated by that of Page 13 of 21 PW1 who indicated that the incident took place Kisangara in Mangara area. Indeed, the charge reflects that the incidence took place at Mangara village. It is also true that PW3 stated that the incidence took place at Kisangara area. However, as pointed out by Ms. Msenga, PW1 stated that she resides at Kisangara in Mangara area. Even the record reflects that PW1 was taken to Kisangara Police post. This thus proves that either Kisangara is in Mangara village or the opposite. Further, there is no contention that the appellant and PW1 are neighbours and the incidence is alleged to have occurred at the appellant’s home. In that respect, I am of the view that the failure by PW1 to mention Mangara village did not occasion a variance as PW1’s testimony had clarified the issue. In the premises, this ground also fails. As to the 2nd ground, the appellant faulted Exhibit PE1 as being uncertain and proceedings being ambiguous or irregular. Ms. Msenga opposed this ground alleging that the statement was recorded in time as per the law and all procedures of admission were complied with. From the wording of this ground, it appears rather ambiguous as to whether the appellant was faulting the procedures for admission and recording of the cautioned statement or if he was faulting the trial court proceedings surrounding the admission of the exhibit. In circumstances, considering that he did not discuss this ground, I am inclined to address both scenarios for the interest of justice. I Page 14 of 21 prefer to commence with the second scenario as to irregularity in proceedings surrounding admission of the Exhibit. In my scrutiny of both, the hand written and typed proceedings, I found that the phrases leading to admission of Exhibit PE1 reflect two exhibits; the appellant’s cautioned statement, which appears to be annexed on record, and PW2’s PF3. Upon its admission, the trial magistrate recorded PW3 stating that she was tendering a PF3. In admission, the Hon. trial Magistrate only referred to the document being admitted as “the said exhibit” but did not state the actual title of the exhibit. For ease of reference, the relevant part of PW3’s evidence is hereunder reproduced: “I did start to interview him by 18:26 pm and did finish up by 19:00 hours. He did admit to attempt to sodomize the victim. He did apply saliva and did try to insert his penis into his anus. I did make a follow up the PF3 and didn't show that the victim was sodomized. The said statement bears my hand writing and signature. This is the PF3 form that I am referring to. I pray to tender it as exhibit before this court. Accused person. I have no objection. Court: This court is hereby admitting the said exhibit and mark as exhibit PE1. That's all.” As seen, the Hon. trial Magistrate never indicated the title of the exhibit being tendered. Worsening the situation, the Exhibit on record that is alleged to have been a cautioned statement is in the court file, but is not marked as exhibit PE1. There is only a mark “D” appearing thereon. The PF3 is also not on record. The only Page 15 of 21 indication that Exhibit PE1 was a cautioned statement is the Judgement of the trial court. As such I agree with the claim that the proceedings leading to the admission of the alleged exhibit are irregular and ambiguous. Even if I were to overlook the irregularity on the proceedings and consider the error somewhat minor, the record shows that the cautioned statement was never read before the trial court upon being admitted. The law is settled that upon admission of a document as exhibit, it ought to be read before the trial court. The essence is to accord the other party the ability to understand the case against him. Thus, the omission to read the admitted document occasions misjustice to the adverse party. Addressing a situation where documents admitted where not read the apex Court in Redempta Nyaonge Faustine vs. Republic (Criminal Appeal No 651 of 2020) 2024 TZCA 709 (12 August 2024) TANZLII, stated: “After admitting those voucher and annexures, the trial court did not order its contents be read out, even the learned counsel for both sides did not bother to draw the attention of the court for such compliance of the law. Reading out the documentary exhibit would have gone a long way, to fully appraise the appellant of the contents with a view to prepare herself possible answers against or in support of that exhibit. This made it hard to the appellant to become aware of the contents of those voucher and attachments. Thus, although present throughout the trial, the appellant was convicted on the basis of the documentary evidence she was not aware of.” Page 16 of 21 See also: Jumanne Mondelo vs. Republic (Criminal Appeal 10 of 2018) [2020] TZCA 1798 (6 October 2020; William Maganga @ Charles vs. Republic (Criminal Appeal No. 104 of 2020) [2023] TZCA 17742 (6 October 2023) and; Halawa Tabu vs. Republic (Criminal Appeal No 48 of 2022) 2024 TZCA 740 (16 August 2024). In foregoing view, I hereby expunge Exhibit PE1 from the record. The 2nd ground is thus with merit. Now considering that Exhibit PE1 has been expunged and the same had been partly relied on by the trial Magistrate in making her findings, as reflected in the trial court’s Judgement; the question is whether the surviving evidence suffices to convict the appellant. Foremost, it is not contested that PW2 was at the appellant’s home on the material day and that PW1 left him there. It is also not disputed that PW1 later picked up PW2 from the appellant’s home. The dispute is on what transpired at the time which PW2 stayed in the appellant’s home. PW1 testified to the effect that upon picking up PW2 from the appellant’s home and taking him home, he could not sit properly on a chair as she offered him food. It was then that he disclosed that he had been carnally known by the appellant against order of nature. PW2 on the other hand, narrated the account that the appellant undressed himself his trouser and took off his shirt and afterward sodomized him. Page 17 of 21 The above evidence indicates unnatural offence being done to PW2. It indicates that PW2 was carnally known against order of nature. However, after PW1 had narrated the incidence, she further testified that she took PW2 to the hospital where a doctor examined him and found his anus to have not been penetrated. It was based on such evidence that the charge was substituted to grave sexual abuse. However, the said doctor was never called to testify as a witness and to make matters worse, even the PF3 which was mentioned by both PW1and PW3 was never tendered as exhibit. While a medical examination report is not mandatory to prove sexual offences, it was still material piece of evidence in this matter. It was also important for the alleged doctor to be called as a witness. This is because, PW1 solely relied on the alleged information she received from the doctor that he observed the victim and found that the appellant was “preparing to sodomize him”. In my view, there was need of further evidence to prove what exactly was discovered in examination of the victim as to lead to the conclusion that PW2’s anus was not penetrated, but there were elements proving an attempt to penetrate him unnaturally. While no number of witnesses is required to prove a party’s case, the court can draw an adverse inference where a witness considered material is not called. This however can only be done where the evidence on record is insufficient and such witness if called would have elucidated on the missing facts. This was well Page 18 of 21 explained in Sumitu Abdallah vs. Republic (Criminal Appeal No 247 of 2021) 2023 TZCA 17994 (14 December 2023) TANZLII, which it was stated: “The adverse inference will only be made by the court if the prosecution evidence is not or barely adequate. Accordingly, it will not be inferred where evidence tendered is sufficient to prove the particular issue or the entire case. In order for the adverse inference to be made, the evidence of the missing witness must be such as would have elucidated a matter. The appropriate inference to draw is a question of fact to be answered by reference to ail the circumstances of the particular case.” As I have indicated earlier, PW2’s evidence reflected unnatural offence being committed. On the other hand, the testimonies of PW1 and PW2 who allegedly bear witness on grave sexual abuse present another offence of attempted unnatural offence or attempted grave sexual abuse. There is thus a missing link which could only be rectified by calling the doctor. Without the evidence of the doctor, the testimony by PW1 and PW3 is left hanging without any means to prove the offence of grave sexual abuse. In fact, the evidence by the two witnesses makes the appellant’s defence viable in the sense that he did beat up PW2 which would explain PW2’s crying or failure to sit properly. This raises a reasonable doubt on whether there was an attempt of unnatural offence, sexual abuse or grave sexual abuse. I hold doubts, well reasonably on the omission by prosecution to call the doctor who examined PW2. I adversely find there is reason Page 19 of 21 to believe that the doctor and the PF3 would have indicated that there was no attempt to commit unnatural offence or that no sexual abuse was committed. The law is settled that conviction of an accused is only achieved where the prosecution proves the charge beyond reasonable doubt. It is also the strength of the prosecution case that sustains conviction. This duty to prove the charge requires the prosecution to prove that the offence was committed and the accused person did commit the same. This twofold nature of the duty to prove the case beyond reasonable doubt was well expounded in Malik George Ngendakumana vs. Republic (Criminal Appeal 353 of 2014) [2015] TZCA 295, TANZLII, whereby it was held: “The principal of law is that in criminal cases the duty of the prosecution is twofold. One, to prove that the offence was committed, and two, that the accused person is the one who committed it.” The evidence by the prosecution at trial did not prove the offence of grave sexual abuse being occasioned. There are reasonable doubts as to whether PW2 did suffer a grave sexual abuse which is the charge against the appellant or attempted unnatural offence or even unnatural offence which was the initial offence the appellant was charged with. Without proof of the offence being committed the vital part of the duty is already unexecuted. In such situation, even the 2nd part of the duty could not be executed. In the foregoing observations, I find the charge against the appellant Page 20 of 21 was not proved beyond reasonable doubt. This renders the 1st,5th and 6th grounds with merit. Consequently, I hereby quash the appellant’s conviction, set aside the sentence and orders meted against him. I order for his immediate release from prison custody, unless he is held for some other lawful cause. If part or all of compensation money has been paid in execution of the trial court’s order, I hereby order that the same be returned to the appellant with immediate effect. Dated and delivered at Moshi on this 28th day of October, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 21 of 21