CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA. 3.A.. MLACHA. 3.A. And NGWEMBE. 3.A.1 CRIMINAL APPEAL. 635 OF 2020 KASIM SELEMAN @ GAMALE............................................... APPELLANT VERSUS THE REPUBLIC.................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) flsmail. J.1 dated the 7th day of September, 2020 in Criminal Appeal No. 195 of 2019 JUDGMENT OF THE COURT 9th & 14th August, 2024 NGWEMBE. JA.: The appellant was charged in the Resident Magistrate Court of Geita at Geita with the offences of abduction of two girls under the age of sixteen years contrary to section 134 of the Penal Code (Cap 16 R.E. 2002 now R. E. 2022), rape contrary to section 130 (1) (2) (e) of the Penal Code and unnatural offence contrary to section 154 (1) of the Penal Code. It was alleged that at the eve of Christmas of 25th day of December, 2016 in the evening time, the appellant abducted two girls, one aged 12 years and another 10 years old to a bush at a pit where he i raped the first and sodomized the later for the whole night until in the morning of 26/12/2016 when they were released near Renny Hotel. Because of their age, the two girls' names are concealed instead, the 12 years old will be referred as ABC and 10 years old will be referred as AX respectively throughout this judgment. In order to print out a clear picture of this matter, a brief background is necessary. The prosecution account from 6 witnesses-and 3 exhibits was to the effect that on 25th December 2016, the two girls were with their mother at home but they sought permission and were allowed to have a walk with their friends in the evening. The outing walk took them to Shilabela market. When they were done, they strolled back home, as they arrived at Renny Hotel, a man who was later alleged to be the appellant called them and accused them for stealing his sim card. Despite their denial, the culprit took them to the bush at a pit made by brick workers. They spent the whole night in that pit while the appellant interchangeably raping and sodomizing them. In the early morning of 26th December, 2016, the culprit took them back near Renny Hotel and left them there. The victims found their way home. Upon being inquired on what happened to them, ABC disclosed to their mother Furaha Christopher (PW1), the whole ordeal of the nightmare they experienced in the bush with the appellant. Unfortunately, at the trial ABC was not part of the prosecution witnesses linking the offence of rape with the appellant. Their mother PW1 inspected their private parts and found ABC to have been raped but AX was not molested. PW1 informed their father who reported to Police Station and a PF3 was issued to them for medical examination. AX testified as PW2 that they were taken to the hospital for medical checkup and treatment. Again, the record does not indicate that the said PF3 was tendered during trial and the medical doctor who examined and treated the victims was not part of the prosecution witnesses. Having so reported to the police and in the course of investigation, E 7284 D/CPL Juma (PW6) arrested the appellant on 3rd January, 2017. That, he alleged to have arrested him at the forest area behind Makoye Hospital where he was hiding inside a pit suspected to abduct young girls with intent to rape them and demand money from their parents. Further he testified that, at the time of arrest, the appellant at around 23:00 hours, was found with a girl called Diana. However, in the record, Diana does not feature anywhere during trial. F.3780 D/CPL Linus recorded the cautioned statement of the appellant on 3rd January, 2017 which statement was admitted as exhibit PI. Moreover, WP 3309 D/Sgt Hidaya investigated the incident by interrogating the victims and visited the scene of crime which was at a pit created by bricks workers and she drew a sketch map which was admitted as exhibit P2. Inspector Tungaraza (PW5) conducted identification parade on 5th January, 2017 where the victim ABC identified the appellant. The report of identification parade was admitted at trial marked exhibit P3. Lastly, was PW6 who arrested the appellant. When put to his defence at the trial, the appellant who testified as DW1, disputed to have been arrested on 3rd January, 2017. His account of what transpired until his arrest is totally different from the account of the prosecution. He narrated a story related to the phone call and conversation between himself and the Regional Crimes Officer (RCO) of Geita on 30th December, 2016 and his arrest on 1st January, 2017 when he arrived from Ukerewe District. That, upon his arrival from Ukerewe, two police officers whose names are James and Marwa took him to Kasamwa Police Station where he was tortured and injured. Further, he claimed that on 17th January, 2017 he was arraigned in court for an offence he did not know. In convicting the appellant, the trial court accepted the evidence of PW1 and PW2 as the basis of the offence charged against the appellant. 4 At the end, the trial court was satisfied that the offence of abduction was proved beyond reasonable doubt to both girls and the offences of rape to ABC and unnatural offence to AX were established and proved to the hilt. Thus, it passed sentence of two years' imprisonment to each count on abduction and statutory minimum sentence of thirty years imprisonment for the offence of rape and unnatural offence, all sentences to run concurrently. The appellant substantially lost his first appeal to the High Court on the accusations of unnatural offence against AX while he succeeded to dismantle the conviction of abduction and rape in respect of ABC, which was not proved due to the absence of the victim to establish it. The first appellate court upheld the conviction and sentence of unnatural offence committed by the appellant to AX. The appellant is now appealing to the Court raising five points of grievance in the memorandum of appeal as hereunder: 1. Failure to prove unnatural offence against the victim AX because the prosecution left deliberately material witnesses like a medical doctor; 2. The victim AX was not credible, untruthful and doubtful to be trusted; 3. That the essential ingredients of unnatural offence were not established as alleged to have been committed by the appellant; 4. There was unfair trial due to misconception between the offence of rape and unnatural offence; and 5. Failure of PW1 to report the incident to the justice of peace before reporting to police. In a nutshell the main grievance of the appellant is that he was convicted on the basis of evidence which did not prove the charge at the required standard. When the appeal was placed before us for hearing on 9th August, 2024, the appellant appeared in person, unrepresented. The respondent Republic appeared through Mr. Robert Magige, learned Senior State Attorney. When we gave the floor to the appellant to argue his appeal, he simply adopted the grounds in the memorandum of appeal and opted the Republic to respond after which he would make a rejoinder, if need arises. In his reply, Mr. Magige expressed his stance at the very outset that he opposed the appeal and would like to argue those grounds of appeal seriatim. However, after a brief engagement with the Court he changed his position and supported the appeal on the grounds that sodomy was not proved and the appellant was not identified by the victim. He equally conceded that the offence was not properly investigated and professionally prosecuted. He amplified his argument by pointing out that the prosecution, unfortunately, did not call material witness like the medical doctor who would corroborate the allegations of unnatural offence to PW2. More so, the absence of PF3. or any other relevant medical examination report in respect of the alleged sodomy weakened the prosecution case. Those documents would have corroborated the evidence of PW1 and PW2 respectively. Further, he argued that, it was not disclosed as to why the alleged victim ABC and others including Diana who was found with the appellant at the scene of crime with PW6 when the appellant was arrested at the forest, were not paraded as witnesses. Equally, he argued that the testimony of PW5 who conducted the identification parade did not indicate that AX was present and if she identified the appellant. Due to the said shortfalls, the learned Senior State Attorney, conceded that the prosecution case was not proved to the hilt. We have critically reviewed the record in line with the grounds of appeal and the submissions advanced by the learned Senior State Attorney. We agree that the prosecution case is wanting as it is riddled 7 with serious gaps. We equally agree with Mr. Magige that the offences against morality like the instant appeal, required seriousness in its investigation and prosecution which was not the case in this matter. In any event, we find the crux of the matter for our determination is whether the unnatural offence complained of by AX was proved to the required standard. As we have alluded above, the offence of rape and abduction were conclusively decided by the first appellate court, which decision was not appealed against by either party. Therefore, the remaining complaint from the appellant is in respect to unnatural offence alleged to have been committed against AX. With regard to failure of the prosecution to prove the case to the hilt, we agree with Mr. Magige that the prosecution evidence left holes unfilled. In this point, we intend to point fingers to the investigators that they abdicated their noble duty to perform professionally. This Court at once lamented the same in the case of Hosea Francis @ Ngala & Another v. Republic (Criminal Appeal 408 of 2015) [2016] TZCA 325 TANZLII (8 April 2016) by observing that: 'We are obviously concerned about the falling standards o f professionalism in the collection o f evidence at scene o f crimes. We are as surprised why, after visiting the alleged scenes where the deceased met her unlawful death, PW1 and other police officers who were in his entourage, failed to collect physical evidences which the police according to PW3 were shown" In the course of exercising the duty of an appellate court, in this case where the appeal is mainly based on a complaint that the offence was not proved, the law on burden and standard of proof will take guide along with other relevant principles; section 3 (2) and 110(1) of the Evidence Act, taken together provide that the prosecutor bears the burden to prove the offence beyond reasonable doubt. See; Anthony Kinanila & Another v. Republic (Criminal Appeal 83 of 2021) [2022] TZCA 356 TANZLII (16 June 2022) where the principle was expounded by the Court as follows: "It is trite but important to observe that, In order to determine the culpability o fan accusedperson in a criminal case, several principles must be considered. First and foremost is the cardinal presumption that the accused person is presumed innocent until the contrary is proved. (See Article 13(6)(b) o f the Constitution o f the Republic o f Tanzania, 1977 Cap 2). Moreover, in line with the above-stated principle, in any criminal trial, the prosecution bears the burden to prove beyond reasonable doubt not only that the offence was committed but also that it was committed by the accused person or that he participated in the commission o f the offence to the extent or degree as prescribed by law. Put in other words, it is the exclusive duty of the prosecution in any criminal trial to place the accused person at the scene of the crime. "'(Emphasis supplied) In this appeal, unnatural offence contrary to section 154 of the Penal Code is what was sought to be proved by the prosecution. What entails unnatural offence as the provision referred, is carnal knowledge (penetration) against the order of nature. In this case, age of the victim was to be proved as well, that she was under the age of 18 years. The respondent Republic was bound to prove that the victim was penetrated against the order of nature and that the one who penetrated her is none else but the appellant. This Court in many decisions of this nature has tested if the victim was penetrated unnaturally and if the accused is the one who penetrated. See; John Mkorongo James v. Republic (Criminal Appeal No. 498 of 2020) [2022] TZCA 111 TANZLII (11 March 2022) and Amrani Hussein v. Republic (Criminal Appeal 13 of 2019) [2021] TZCA 136 TANZLII (22 April 2021). 10 In this case as above observed, proof of penetration was wanting. The victim (PW2) giving her testimony suggested that the perpetrator did not succeed to penetrate in her anus. The victim proceeded to state that she did not have sex against the order of nature. There was no evidence that the victim was penetrated. The appellant has also challenged the failure by the two courts to note that the medical doctor who was a material witness was not called to testify. As a general rule, offences against morality are committed in secrecy and the best evidence is from the victim not from anyone else. However, it is the position of the law that medical doctors, when called to testify in court are not witnesses of facts, rather are experts in their field providing expert opinion. The expert opinion is admissible to furnish the court with scientific information, which is likely to be outside the experience and knowledge of a trial judge or magistrate. It is also a position of legal practice that the court is not bound to follow such expert opinion, when there is enough and cogent evidence to arrive to the conclusion without assistance of that expert opinion. But when there is a serious doubt, the scientific proof will help the court to have a clear position of the alleged offence. See; Edward Nzabuga v. R, Criminal Appeal No. 136 of 2008 (unreported). 11 In the circumstances of this appeal, we agree with Mr. Magige, that the presence of a medical doctor who examined the victim was material to corroborate the allegations of unnatural offence to AX. In the wake of her denial that she was not sodomized as supported by the testimony of PW1 who suggested that she examined AX in her private parts and found that she was normal, save her sister ABC who was found with spermatozoa We therefore, agree that the medical doctor was a material witness and failure to parade him/her as a witness entitled the Court to draw an inference adverse to the prosecution. Moreover, the prosecution case has serious flaws on the discrepant visual identification of the appellant. It is on record that the appellant was a stranger to the victims. However, besides there being no description of the appellant before one of the victims saw him at the police, the victim who went to identify the appellant at the police did not adduce any evidence. Therefore, the evidence on identification parade is of no relevance in the present matter. With all those serious flaws on the prosecution, it was not safe to convict the appellant. We therefore agree with the learned Senior State Attorney that the charge of unnatural offence was not proved to the hilt. 12 We accordingly, allow the appeal, quash the conviction and set aside the sentence meted to the appellant, and order an immediate release from custody forthwith unless otherwise is held for other lawful cause. DATED at MWANZA this 13th day of August, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 14th day of August, 2024 in the presence of Appellant who appeared in person and Mr. Benedicto Ruguge, learned State Attorney for the Respondent / Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 13