JUDGEMENT VYANGUSA MUSTAFA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000018806 OF 2024 VYABUSA MUSTAFA .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J The appellant stood charged before District Court of Kigoma, on two counts of grave sexual abuse contrary to sections 138 C (1)(d) and (2)(b) of the Penal Code [CAP 16 R.E 2022]. It was alleged that on 11st day of April, 2023, the appellant, for sexual gratification did sexually abuse two girls, aged 4 and 5 years by inserting his fingers in their private parties. For the purposes of this appeal, the two girls will be identified as ‘X’ and ‘Y’. The appellant was tried and found guilt. He was convicted and sentenced to serve a concurrent sentence of 20 years imprisonment imposed on each count. The appellant was not amused by the decision of the trial court, he filed this appeal with the following 6 grounds of appeal: - 1. That, the trial resident magistrate erred in law and facts in convicting the appellant without considering there was no cogent evidence adduced by Page. 1 Hon. AUGUSTINE RWIZILE the prosecution side which has not proved the charge beyond any reasonable doubt. 2. That, the resident magistrate erred in law and facts in convicting the a ppellant while there was no caution statement tendered before the law. 3. That, the trial court erred in law and fact in convicting the appellant relying on the hearsay evidence of PW1 and PW2. 4. That, the trial court erred in law and fact in convicting the appellant on defective charge sheet. 5. That, the trial court erred in law and facts in convicting the appellant regardless of the contradiction of the age of the victims. 6. That, the trial magistrate erred in law and fact in disregarding the appellant ’s defence case and on failure to consider the principle that the appellant cannot be convicted based on the weakness of his/her defence but on the strength of the prosecution evidence adduced and proved against the a ppellant. At the hearing, the appellant appeared in person. The respondent was under services of Ms. Rehema Mpozemenya, learned State Attorney who did not contest this appeal. When supporting this appeal, the Attorney argued that there was no sufficient evidence proving the appellant committed the offences charged. She made a reference to the evidence of Pw3 and Pw4, X and Y who did not show, they identified the appellant. It was their evidence, according to the learned state attorney, that is Pw3 and Pw4, the offence was committed on them by Babu M zee, but they did not identify him. Page. 2 Hon. AUGUSTINE RWIZILE She argued, there is no evidence showing what lead to the arrest of the appellant. She added, Pw1 and Pw2 said, they heard noise and went to the office of the Ward Executive officer (WEO) in response, where they found the appellant. Further, it was stated, they heard the victims say, it is the appellant who had sexually abused them. In her view, the charge was not proved. The appellant had no comment on the attorney’s submissions, but only added that, the charge was not proved against him. I have pondered the arguments of the parties. I have no reason to fault the attorney’s argument. At law, it is always the duty of the prosecution to prove the accusation levelled against the accused. The prosecution had therefore to prove beyond reasonable doubt that it is the appellant, who committed the charged offences. Pw1 and Pw2, Pw4 and Pw5, did not show any evidence that led to the arrest of the appellant in connection with the offence charged. Pw1 and Pw2 are said to have heard the noise in the WEO’s office. In terms of Pw1 when he arrived at the WEO’s, the victims were not there. To the contrary, Pw2 said, she went to the same office because there was noise, and on arrival she found granddaughter of Pw1 in the office, which is also not the case in the evidence of Pw5, the WEO. It is from this finding that indeed, there was material contradictions on the evidence of the prosecution. Pw1 said they called the two children and sent them to WEO's office, where they were questioned, if they know the accused and admitted knowing him as Mzee Page. 3 Hon. AUGUSTINE RWIZILE Babu. Pw3 and Pw4, were called to identify the appellant after his arrest. X and Y had not reported the matter to any person upon being sexually abused. Therefore, the arrest of the appellant is not due to the information from them. Th e evidence of Pw5, on page 6 of the typed proceedings, stated;- “… I arrest the accused and took him to my office, I informed OCS of the central police who told me that they are coming while waiting for police, two women came with victim’s (sic) and complained that the accused did sexual gratification to their children by inserting fingers in their vaginas” From the record, identification by the victims was done after arrest, which is always the case, but there should be evidence of prior description which leads to arrest. Based on the tender age of the victims-X and Y, it casts doubt, if the questioning that was done in the WEO’s officer was good enough to properly identify the appellant without mistaken identity. The victims did not report the matter as early as possible, one day passed, until when the appellant was arrested, it is when the victims were taken to identify him at the office of the WEO. This being the observation, the evidence of the appellant as adduced at the trial that he had grudges with Mzee Haji, fetches support. Having said what I have said, I agree with the learned State Attorney that there was no sufficient evidence proving, it is the appellant who committed the offences. Therefore, this appeal has merit. It is allowed. The conviction and sentence are hereby quashed. The appellant should be released from prison unless held for some other lawful cause. Page. 4 Hon. AUGUSTINE RWIZILE Dated at KIGOMA this 24th of February 2025 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 5 Hon. AUGUSTINE RWIZILE