CRIMINAL APPEAL NOMOHAMED RASHID MTENGO NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MTWARA SUB- REGISTRY) AT MTWARA CRIMINAL APPEAL NO 110 OF 2023 (Originating from the from the District Court of Lindi at Lindi Criminal Case No. 52 of2022) MOHAMED RASHID MTENGO.............. APPELLANT VERSUS - f THE REPUBLIC........ ........................... RESPONDENT JUDGMENT / V'.r Date of iast Order: ICP November2023 Date ofJudgment: 27!' November 2023 LALTAIKA, J, /O ? The appellant herein MOHAMED RASHID MTENGO was arraigned in the District Court of Lindi at Lindi charged with one count of grave sexual abuse contrary to section 138C (i)(a) and (2)(b) of the Penal Code Cap 16 RE 2022. It was the prosecution's allegation that oh 19/9/2022 at Chiuta Village in Lindi District and Region, with the intention of sexual gratification the Page 1 of 11 appellant sucked ears and breasts and inserted his fingers in the private parts of a girlchild called (XXD name concealed) aged 11. When the charge was read over and explained to the appellant (now accused) he denied wrongdoing. This necessitated the conducting of a full trial. On completion of the trial and having been convinced that the prosecution had proved its case beyond reasonable doubt, the learned trial Magistrate convicted the appellant as charged and proceeded to sentence him to a term of 20 years in jail. Dissatisfied, the appellant has appealed on 8 grounds. For reasons that will become clear soon, I choose not to reproduce them. ■ When the appeal was called on for hearing, the appellant appeared in .-r person, unrepresented. The respondent Republic, on the other hand, appeared through Mr. Melchior Hurubano, learned State Attorney. Regarding the first ground, Mr. Hurubano noted the complaint about noncdmpliance with section 127(2) of the Evidence Act Cap 6 RE 2022, which mandates that a child of tender age testify either on oath or without oath. If testifying without an oath, the child must promise to tell the truth and not to lie. He pointed out that, as reflected on page 7 of the trial court’s Page 2 of 11 proceedings, PW1 (the victim) indeed promised the court to tell the truth. Consequently, he argued that the section had been complied with, and prayed for the dismissal of this ground. On the second ground, where the complaint concerned the proper identification by PW1 and PW2, Mr. Hurubano asserted that the ground lacked merit. He highlighted that these witnesses described the accused as a slim person and testified that they had known the appellant for many years as their neighbor. He emphasized that PW1 had provided testimony on how the appellant went to their home and took her away, leaving no room for mistaken identity. According to Mr. Hurubano, this identification was based on prior knowledge of the appellant rather than a dock identification, and therefore, he prayed for the dismissal of this ground. Addressing the third ground, Mr. Hurubano helpfully clarified that the complaint concerned the failure to summon a material witness and tender ^i!'v an important exhibit, specifically a medical doctor who examined the victim A. and the PF3 form. Mr. Hurubano argued that neither the witness nor the exhibit was material since the offence charged did not require medical evidence for its establishment. Page 3 of 11 The learned State Attorney further contended that the claim about the non production of a clinic card being fatal was baseless, as the victim's age had been proved through the oral evidence of PW2 (the victim's mother) as documented on page 9. Consequently, he prayed for the dismissal of this ground, .. ‘ On the fourth and fifth grounds, which were argued together, Mr. Hurubano informed that the complaint was about the non-consideration of the defence evidence, particularly the defence of alibi. Mr. Hurubano V:-:... s:-7- conceded that the appellant had indeed raised the defence of alibi, claiming that he was not in the village on the material day. However, reasoned the learned State Attorney, the defence of alibi is governed by section 194(4) of the Criminal Procedure Act Cap 20 RE 2022. Citing the case of Emanuel Mathias v. R., Crim Appeal No. 132 of 2010, CAT Musoma, he reminded the court that when a defence of alibi is presented after the £ prosecution has closed its case and without prior notice, the court has the discretion to accord it lesser weight. According to the proceedings, Mr. Hurubano asserted, the appellant’s defence of alibi was raised only after the prosecution case had been closed. The learned magistrate had analyzed and rejected the defence of alibi on Page 4 of 11 pages 16 and 17 of the impugned judgment. Mr. Hurubano also referred to the fact that during his defence, the appellant brought two witnesses who claimed that he was not in the village on the material day, asserting that on 16/9/2022, the appellant went to another village for a burial and returned on 20/9/2022. ;' However, Mr. Hurubano argued, the appellant had agreed on page 4 of the proceedings that on 19/9/2022, he passed through the home of the victim and that the victim's mother had asked him-to lend her TZS 500/=. Mr. Hurubano thus suggested that the defence of alibi was an afterthought and prayed for the dismissal of these grounds for lack of merit. On the sixth and eighth grounds, Mr. Hurubano clarified that the complaint was that the prosecution's case had not been proved beyond a reasonable doubt. Mr. Hurubano referred to section 138C (l)(a) and (2)(b) of the Penal Code and the particulars of the charge, stating that to prove the offence, .the prosecution needed to establish two elements: first, that the appellant had sucked the ears and breasts of the victim and inserted his fingers into her private parts, which was proven by PW1 as documented on pages 7 and 8 of the proceedings; and second, that the appellant committed these acts for sexual gratification. Page 5 of 11 He strongly argued that the acts of sucking the ears and breasts and inserting fingers into the victim's private parts were indeed for sexual gratification. Therefore, he prayed for the dismissal of these grounds. Lastly, on the seventh ground, that the defence evidence had not been properly evaluated, Mr. Hurubano maintained that this ground lacked merit, as the learned magistrate had already evaluated the appellant's evidence, as well as that of his witnesses, on pages 16 and 17 of the impugned judgment. I';' Nonetheless, Mr. Hurubano suggested, since this was the first appellate court, he prayed for the court to evaluate the evidence and, if possible, come up with its own findings. Based on these arguments, Mr. Hurubano prayed for the dismissal of the appeal in its entirety. The appellant, on his part, expressed his gratitude for the opportunity to speak, emphasizing that what the respondent had dismissed as baseless grounds were actually his written submissions. He added a few points orally, noting that the alleged doctor was never brought to court, nor was the alleged father who was said to have come from Chitangali to Ghiuta in Undi to take the child. The appellant asserted that this was not his problem, nor the child's. Page 6 of 11 He explained that he left the village on the 15th of September to attend the funeral of his Sister-in-law, in Mbuyuni Village, which was 45 kilometers away. He mentioned that someone owed him money and had promised to repay him on the 17th of September, so he bid farewell to the chairman and took charge of all the funeral activities. The appellant also shared that the mother of the victim was bitter with him because he had expressed a desire to marry her. He had given her some time to decide if she had any other suitors. On one occasion, she asked him for sugar, and when he went to her home, she invited him for lunch. During the meal, someone knocked on the door, and he recognized the person by his voice. He recounted reasoning with the mother after giving her the money to buy sugar, insisting that he wanted to know if she had no other man in her life. Since she was not honest with him, he decided to leave her. She then promised to do something to him that he would never forget. The appellant firmly insisted that he was not in the village on the date in question and that he returned only on the 20th, which was a market day. He also clarified that the main village was Chiuta, while the smaller village had branched off from it. Page 7 of 11 I have dispassionately considered the grounds of appeal and the rival submissions. I will confine my analysis to the 4th and 5th grounds on the defence of alibi. I am inclined to emphasize that while it is true that the defense of alibi was presented after the closure of the prosecution's n-<V case, \c. outright rejection of the alibi based solely on its timing would undermine the fundamental principles of justice. The appellant's alibi, though brought at a later stage, was a legitimate claim that required carefulconsideration by the trial court. Y Noteworthy, the essence of an alibi-defense is to cast reasonable doubt on the prosecution’s case by asserting that the accused was elsewhere when the alleged crime occurred. Therefore, even though it was introduced later in the proceedings, the alibi should have been thoroughly examined on Its merits. ;! The right to a fair trial is a cornerstone of justice, which includes the opportunity for the accused to present a full defense. By dismissing the alibi without adequate evaluation, the trial court may have deprived the appellant of his right to a fair trial. This first appellate court, therefore, must rectify this oversight by reconsidering the alibi in light of all the evidence presented. Page 8 of 11 Had the learned trial Magistrate considered the uniqueness of the case in light of the defence of alibi, she would have arrived at a different outcome, I am inclined to think however, and with due respect to the learned Magistrate, she chose to take technicalities too seriously. Embracing technicalities at the expense of substantive justice is contrary to the principles enshrined in our legal system. The court's primary duty is to ensure that justice is done, rather than adhering rigidly to procedural rules that may unjustly prejudice the accused. V " While procedural rules are essential for the orderly conduct of trials, they should not be applied in a manner that sacrifices substantive justice. The court must strike a balance between technical compliance and the broader goal of delivering fair and just outcomes. In this case, the dismissal of the alibi defense, without a comprehensive evaluation, leans too heavily on procedural technicalities, potentially leading to an unjust result. X 'The court possesses the discretion to weigh the alibi defense even when it is raised at a later stage, as provided under section 194(4) of the Criminal Procedure Act, Cap 20 RE 2022. The court is not bound to dismiss Page 9 of 11 the alibi outright but should instead consider the totality of the evidence before it. In this case, the appellant presented witnesses to support his alibi, claiming that he was attending a funeral in another village at the time of the alleged offence. This testimony deserved careful scrutiny by the trial court, with an assessment of its credibility and consistency with other evidence. The two witnesses brought by the then accused plus himself, left no doubt that the appellant was not in the scene of crime on the material day. In the upshot, I allow the appeal. I hereby quash conviction and set aside the sentence. Further, I order that the appellant MOHAMED RASHID MTENGO be released from prison forthwith unless he is being withheld for any other lawful cause. Page 10 of 11 Court Judgment delivered under my hand and the seal of this court this 29th day of November 2023 in the presence of Mr. Steven Aron Kondoro, learned State Attorney, and the appellant who has appeared in person, Page 11 of 11