CRIMINAL APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 23S62 OF 2024 (Arising from the decision of the District Court of Newaia at Newaia in Criminal Case No. 64 of2023) SAIDI MUWANYA MOHAMED.............................................................. APPELLANT VERSUS THE REPUBLIC..................... RESPONDENT JUDGMENT 1$P December 2024 & 19h February 2025. DING'OHI, J; The appeal is against the conviction and sentence imposed on the appellant herein by the District Court of Newaia district at Newaia (the trial court) for the charge of Grave sexual abuse contrary to section 138C (1) (d) and 2 (b) of the Penal Code Cap 16 R.E 2022. It was alleged that on 25th October 2023 at Mkoma II village within Newaia district in Mtwara region, for sexual gratification, the appellant did put his penis on the-vagina of a girl aged 13 years old. To protect her personality the girl in this appeal will be referred to as the victim. Page 1 of 17 The appellant denied the charge laid against him. As an effort to prove the charge, the prosecution side at the trial court depended on the evidence of Karimu Mohamed Ulaya (PW1), No.32320 PC Tumaini Tlmetheo Petro (PW2), Said Rashid Nguyahambi (PW3), and Ajuae Mohamed Ulaya (PW4). In addition, they tendered two exhibits; the victim's clinic card and the appellant's cautioned statement. These documentary evidence were admitted as exhibits Pl and P2, respectively, without objection by the appellant. On his side, the appellant testified alone on the defence side. He was of the view that the case was planted on him. After a full trial, however, the trial court found out that the charge was satisfactorily proved against the appellant. It thus proceeded to convict him as aforesaid. He was sentenced to serve twenty (20) years imprisonment and suffer corporal punishment of 20 strokes. That was not all, the appellant was further ordered to compensate the victim at TZS. 500,000/=. It was not easy for the appellant to agree with the conviction, sentence, and compensation order by the trial court. He has shown his dissatisfaction through the present appeal. Briefly, the facts that led to the appellant's conviction and sentence may be reduced in that, on 25th October 2023, at 18:00hrs, PW3 was at the Page 2 of 17 playground heading home to open the chicken coop for the chicken to enter inside. He then saw the victim entering the appellant's house. The PW3 followed the incident only to see, after peeping inside the house, the appellant kissing and hugging the victim. The PW3 rushed to inform PW4, the victim's uncle. The PW4 came and saw the appellant with the victim inside the house. The PW3 and PW4 then left the scene and teamed up to go to inform the father of the victim (PW1). By then the appellant was not still in the house. He was nowhere to be seen. While they were continuing to look for him they found some male sperms on the floor. Neighbours later came to the scene and started helping to find the whereabouts of the appellant. The appellant was then seen, arrested, and taken to the police station. He was thereafter charged in the trial court as aforesaid. As stated herein above, in its decision, the trial court was satisfied that the prosecution evidence proved the charge against the appellant beyond all reasonable doubts. The conviction of the appellant was based on the cautioned sta:ement (Exhibit P2) allegedly made by the appellant voluntarily before a police officer (PW2). In the cautioned statement the appellant is alleged to have admitted committing the offence he was charged of. That Page 3 of 17 the appellant did not object to the admissibility of the said cautioned statement as exhibit. In addition to that, there was a corroborated testimony of PW1, PW2, PW3, and PW4 who were credible witnesses, and that all proved that the appellant had committed the offence he was charged with. In his petition of appeal, the appellant raised six grounds for his complaint against the judgment of the trial court. In the first ground of appeal, the appellant expresses his belief that the prosecution case against him was not proved beyond a reasonable doubt. In the second ground of appeal, the appellants complaint is to the effect that the learned trial magistrate misdirected himself when he found that the cautioned statement by him (The appellant) was procured as per the law while it was illegally recorded. In his third ground, the appellant faults the trial court for its failure to examine, evaluate, and analyze the evidence on record, hence the miscarriage of justice. The complaint in the fourth ground is that how the proceedings at the trial court were conducted, was irregular and/or improper. On his fifth ground, the appellant censured the trial court for convicting him based on the charge sheet whose statement of fact was at variance with the evidence of prosecution witnesses. In his final ground, the appellant complains that the documents (Exhibits Pl, P2) were not properly Page 4 of 17 identified and thus illegally admitted, thereby causing serious injustice on his part. In this appeal, Mr. Edson Laurance Mwapili, the learned state attorney, appeared for the Respondent Republic. The appellant was in person. When given the chance to begin, the appellant preferred to allow the State Attorney to be the first addresser. Submitting in support of the first ground of appeal Mr Mwapili is of the view that they had been able to prove the charge at the trial court, against the appellant, beyond a reasonable doubt that the appellant is the one who committed the offence he was charged with. The reasons for his stance were that as per the evidence of PW2 who is a police officer and who interrogated the appellant, during his testimony, the PW2 told the trial court that the appellant admitted before him that he committed the offence. The appellant recorded the cautioned statement to that effect which was admitted as exhibit P2 in the trial court without objection. It is Mr Mwapili's case that when the appellant was given the chance to cross-examine,.he had nothing to cross-examine. That means, therefore, according to Mr. Mwapili, the appellant admitted everything to be correct. All that shows it was the appellant who committed the offence. To support his position, Mr. Mwapili Page 5 of 17 referred me to the case of Nyerere Nyague vs. Republic (Criminal Appeal Case 67 of 2010) [2012] TZCA 103. About the proof of age of the victim, the learned State Attorney pointed out that the age of the victim was proved by the victim's father (PW1) who tendered Exhibit Pl (clinic ca-d) which provides the particular of the birth of the victim. On the complaint that the victim was not called to testify, the learned state attorney relied on the position taken in the case of Halawa Tabu vs. Republic (Criminal Appeal No. 48 of 2022) [2024] TZCA 740 (16 August 2024), where the Court of Appeal among other things conceded that in sexual offences the best evidence is from the victim. However, in this case, according to the learned state attorney, the victim did not give evidence because her condition was not good as reflected on page 29 of the trial court proceedings. That the corroborated evidence of PW1, PW2, and PW3 proved the case beyond a reasonable doubt. Regarding the complaint on the second ground of appeal that the learned trial magistrate misdirected himself to hold that the cautioned statement was procured as per the law while it was illegally recorded, Mr. Mwapili submitted that the appellant was not required to raise the matter of admission of the exhibit at this appellate stage. He stressed that the Page 6 of 17 appellant had to object against the admissibility of an exhibit at the time when the PW2 requested to tender the cautioned statement as an exhibit. According to him, since the appellant did not do so at the trial court, the act of raising it now at this appellate stage is an afterthought. To bolster his stance, the learned state attorney recited the case of Nyerere Nyague (supra). On the complaint that the trial court failed to examine, evaluate, and analyze the evidence on record, it was Mr. Mwapili's submission that the learned trial magistrate properly examined and evaluated the evidence before him. According to him, the record bears that the trial magistrate performed his duty perfectly and as required by the law. About how the proceedings at the trial court were conducted, the learned State Attorney elaborated that, indeed, they had not seen any irregularity committed in the conduct of the case per the proceedings, but what was observed, maybe, there was mixing on how to name the parties. However, he quickly pointed out that the omission, if any, did not cause any injustice to the appellant because the witnesses gave evidence, and the appellant was given the chance of cross-examination. He added that the Page 7 of 17 appellant was also allowed to make his defence against the prosecution evidence. Concerning the allegation found on the fifth ground, that the trial court convicted the appellant based on the charge sheet whose statement of fact was at variance with the evidence of prosecution witnesses, Mr. Mwapili argued that after going through the completed charge sheet together with the proceedings, they found no problem. Lastly, is the complaints by the appellant that the documents (Exhibits Pl, and P2) were not properly identified and thus they were illegally admitted, thereby causing serious injustice on his part, Mr. Mwapili was of the stance that Exhibit Pl was tendered by PW1 as reflected on page 29 of the trial court's proceedings. Exhibit P2 was tendered by the PW2 as reflected on pages 34 and 35 of the trial court's proceedings. The learned State Attorney believes that the way all exhibits were tendered and admitted proves that it was proper because all required steps for tendering exhibits were observed per the requirement of the Exhibits Management Guidelines of the Judiciary of September 2020. The appellant, in rejoinder, did not have much to say other than submitting that he challenged the decision of the trial court because it arrived Page 8 of 17 while the victim was not brought to give evidence. The appellant insisted that it is not true that he raped the victim. According to him, the evidence against him was fabricated as all witnesses were related, and the case by the prosecution side was not proved beyond a reasonable doubt. He told this court that the evidence against him was fabricated because the father of the alleged victim had grudges with him. After reviewing the records and oral submissions of the parties to the case, I find myself now ready to confront the six grounds of appeal and come to decide as to whether this appeal has merit, I will start with the complaints relating to the first and second grounds of appeal. The appellant registers the view that the cautioned statement was illegally procured and thus the charge before the trial court was not proved beyond all reasonable doubts. The learned State Attorney implored me to find these complaints to be misconceived based on the fact that they have been able to establish that the appellant was the one who committed the offence charged. According to the learned state attorney,- the guilt came from the fact that the appellant had confessed in a caution statement (Exhibit P2) tendered by PW2 that he did commit the offence. The appellant Page 9 of 17 did not object to the caution statement to be admitted and he did not cross- examine against the evidence over the caution statement. In cases involving the offence of Grave sexual abuse under section 138C (1) (d) and 2 (b) of the Penal Code Cap 16 R.E 2022, the prosecution must prove mainly four ingredients: One, the act is for sexual gratification; two, the act does not amount to rape; three, it involves the use of genital or any other part of the human body or any instrument or any orifice or part of the body of another person, and four, the act must be done with or without the consent of a person who is under the age of eighteen years. Throughout the evidence of all prosecution witnesses in the trial court, no one has stated that he saw the appellant doing anything else other than hugging and kissing the victim. The only witness who would have clarified it is the victim who unfortunately did not give evidence. Admittedly the record provides that the victim appeared in the trial court but she was not given a witness number. The trial magistrate observed that; having conducted an inquiry into the victim aged 12 years old he found her to have lacked sufficient intelligence to testify. Simply the victim did not give evidence in the trial court against the appellant. The relevant issue here is whether the Page 10 of 17 failure of the victim of the sexual offence to give evidence has the effect of weakening the prosecution case against the alleged perpetrator. It has been held in numerous decisions of the Court of Appeal of Tanzania, for example, in the case of Abubakari Shabani vs. Republic (Criminal Appeal No. 312 of 2021) [2024] TZCA 527, the Court referred the decision in the case of Haji Omary vs. Republic (Criminal Appeal No. 307 of 2009) [2015] TZCA 313, where it was stated that; 'The complaint that the case was not proved beyond reasonable doubt because the victim never appeared in court nor was a finding made to the effect that he was not competent to testify does not in our considered view water down the case for the prosecution....' I now proceed with the issue of caution statement allegedly made by the appellant which was acted upon by the trial court to find conviction against the appellant. As stated somewhere herein above the trial court concluded that the appellant confessed to having committed the offence to the victim. In the caution statement, the appellant is recorded to have stated that, I quote: 'Nakumbuka mnamo tarehe 25-10-2023 majira ya saa 18:00 hrs jioni nikiwa nipo nyumbani Page 11 of 17 kwangu mimi mwenyewe nimekaa baiadhani kwenye mkeka nikiwa niko nakunywa pombe. nikaona mtu anaingia ndani kwangu nikamuu/iza wewe nani mbona unaingia ndani kwangu biia ya kubisha hodi na yeye akajibu mimi ni jirani yako.,..nikamuuiiza unashida gani usiku huu akanijibu naomba heia babu nashida nayo, mimi nikamjbu kuwa ieo mimi sina heia heia nimenunua pombe kwa baba yako baada yakuwa nimemjibu hivyo nikaona ghafia anakuja kukaa miguuni kwangu na kuanza kunipapasa mifukoni kwangu huku akisema wewe muongo heia unazo mfukoni na wakati akiendeiea kunipapasa mfukoni akajikuta ameshika kwenye uume wangu na kupeiekea mimi kupata msisimko ndipo mimi nikajikuta namshika na kuanza kumpapasa sehemu za kifua na nikamfunua gauni aliiokua amevaa iakini sikumvua chupi kisha mimi nikatoa uume wangu na kuanza kusugulia pernbeni ya uchi wa victim' na niiifanya hivyo baada ya kuona uchi wa 'victim' ni mdogo sana hivyo niiiogopa nitamuumiza hivyo niiisuguiia pembeni ya uchi wa bind adi nilipomaliza haja zangu pasipo kuingiza kwenye tundu la uke wa victim'.' Page 12 of 17 I have carefully gone through the trial court proceedings. It shows that the caution statement was admitted without objection from the appellant. The same was ready over before the trial court by the PW2. The appellant had nothing material to state against the cautioned statement even at the hearing of this appeal. I would therefore agree with Mr. Mwapili that the ground of appeal challenging the admissibility of the caution statement will not stand. It is hereby dismissed. Apart from the caution statement, there.is other evidence by the PW3 and PW4 who respectively stated that they saw the victim entering the house of the appellant. These witnesses invited the father of the victim (PW1) who also came to the scene of the crime. By then the appellant had just left the scene to a nearby place where he was later arrested and taken to the police station. The trial magistrate believed that piece of evidence. I would have done the same, under the circumstances of this case. That is because the evidence by these witnesses corroborated the caution statement recorded by the appelant which as said was admitted in the trial court without objection. These grounds have no merit. Page 13 of 17 The third ground of appeal is a complaint that the learned trial magistrate failed to properly examine, evaluate, and analyze the evidence on record. I think this ground should not detain me much. Suffice it to say that I agree with the learned State Attorney that from the record, there is no doubt that the trial court did evaluate, and examine the adduced evidence. The Court of Appeal of Tanzania has in numerous decisions underscored the duty of trial courts to evaluate the evidence of each witness and make findings on the issue. See; Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453. After the careful perusal of the trial court records, I am satisfied that on the part of the trial court, apart from summarizing the prosecution and defence evidence as shown on pages 3,4 and 5 of the trial court judgment, evaluated the evidence from both, the prosecution and defence witness and rightly dismissed the defence evidence. That is reflected on pages 3 & 5 of the trial court's judgment where the learned trial magistrate stated, I quote: In defence evidence, the accused did not contest his caution statement or confession in any way, in fact, he did not say anything to that effect. On that account, it is finding of this Court that the Page 14 of 17 confession contained in the caution statement was given voluntarily by the accused. Having assessed the evidence on accused confession through the given tests, the outcome suffices to dispose of this case but I will attend other adduced evidence..... On that basis, the prosecution evidence in the instant case premised on accused confession led by Pw2, direct testimonies of wye witness being Pwl, Pw3 and Pw4 settle the point at issue in affirmative and beyond reasonable doubt that the accused person sexually abused the victim, a gid offender age.' Considering the above excerpt and what I have highlighted about the complaint herein renders this third ground of appeal to have no leg to stand and thus, unmeritorious. On the fourth and sixth grounds of appeal, the appellant is of the view that how the proceedings at the trial court were conducted was irregular and/or improper; Exhibits were not properly identified. and they were illegally admitted. I think this complaint should also not detain me at all because, on my scanning of the trial court proceedings, no part shows that the trial was improperly conducted by the trial court. All documents (Exhibits Page 15 of 17 Pl and P2) were properly identified and admitted. Moreover, each side of the case at the trial court was given a chance to testify according to the law. I find that these grounds of appeal lack merits. On the fifth ground of appeal, the appellant complained that the trial court convicted him based on the charge sheet whose statement of fact was at variance with the evidence of prosecution witnesses. As rightly argued by the learned State Attorney, after examining the charge sheet and the available evidence on records there was no such variance as complained by the appellant. It is for the foregoing reasonings, I find that the appeal against conviction will not succeed. It is hereby dismissed. As to the sentence, as observed herein above, the appellant was convicted of the charge of Grave sexual abuse c/s 138C (1) (d) and 2 (b) of the Penal Code, Cap. 16 R.E 2022. The sentence provided by the law over that charge does not include corporal punishment. It follows therefore that, save for the custodial sentence imposed on the appellant which is hereby confirmed, the sentence of 20 strokes is hereby quashed and set aside. As to the compensation, I find that the sum of Ths 500,000/= ordered to be paid by the appellant is on the high side under the circumstances of this case. I, therefore, hereby quash and Page 16 of 17 set that order aside and in lieu thereof, substitute it with the compensation order of Tshs. 50,000/=. COURT: Judgment delivered this 19th day of February 2025 in the presence of Mr. Edson Laurence Mwapili, the learned State Attorney for the Respondent, and the Appellat who appeared in person. 19/02/2025 Page 17 of 17