Ally Hemed Saaten vs Republic (Criminal Appeal No. 43 of 2024) [2026] TZCA 361 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DARES SALAAM ( CORAM: MWARIJA. J.A.. KENTE. J.A. And MURUKE. 3.A.) CRIMINAL APPEAL NO. 43 OF 2024 ALLY HEMED SAATEN ................. ....................................... APPELLANT VERSUS THE R EPU BLIC ............................ .................................... .............. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) f Luvanda. 3.1 dated the 18 day of September, 2023 in Criminal Appeal No. 166 of 2(123 JUDGMENT OF THE COURT 19th February, & 27m March, 2026 MURUKE, J.A.: The appellant, Ally Hemed Saaten, was convicted of the offence of unnatural offence, in the District Court of Kigamboni at Kigmboni. It was alleged in the particulars of the offence that, on 3rd day of May, 2022 , at Tungi Mashine area, within Kigamboni District, Dar es salaam Region, the appellant had carnal knowledge of a boy aged 12 years, against the order of nature. The boy's identity is concealed and shall be referred as the victim or PW2 in this judgment. A brief account underlying the conviction of the appellant, was accounted by the victim's ground mother (PW1). On the material day, she was watching television at her home, while the victim went to the shop to buy juice. At around 21 hours, PW1 was called by her neighbors, only to be told that "twende ukamuone m jukuu wako kalaw itiw a PW1, immediately rushed to the scene at unfinished house, where she found the victim in a bad condition as he was unconscious, dirty, with dry feces around his anus. She took the victim home, cleaned him and rushed to the Ten cell leader, then to the police, where they were given PF3 and went to the hospital. Upon examination by a Medical Doctor, PW3, confirmed that the victim was sodomized and there were bruises around the neck signs of being strangled. On the following day, upon inquiry by PW1, the victim mentioned the appellant by name as the person who sodomized him. PW1 was also told by Mama Penina and one Ramadhani, that, the appellant was the one who sodomized the victim. It was followed by PW1 reporting to police and the appellant was arrested. The victim testified as PW2. He told the trial court that on 3rd May, 2022 at 21;00 hours, while walking back home from the shop, passing at the alley, he was grabbed and blocked of his mouth by the appellant. He unsuccessfully tried to rescue himself. The appellant drug him to unfinished house, where he stripped him and inserted his penis into his anus; he fainted after the odeal. In his evidence PW2, stated further that, he managed to identify the appellant by the aid of solar light, while drugging him, as the appellant was dressed in a white shirt and black short. He was taken to the hospital by his grandmother PWl,.-and other people. On the following day, he informed PW1 the person who sodomized him. He emphasized that he knew the appellant as he used to visit their home often. PW3, a Medical doctor, testified that he examined PW2 and discovered that in his anus he had fresh bruises and his sphincter muscles were loose. He also noted bruises at PW3's head and neck. He was of the view that there was a blunt object entered into PW3 anus. He tendered PF3 admitted at the trial court as exhibit PI. On his part, PW4, the investigator of the case testified that upon being assigned the case file, she summoned the appellant who was out on bail and interrogated him in relation to the offence charged, in which he denied. PW4, visited the crime scene and interrogated some of the witnesses who both told her that PW3 was sodomized. Together with other four prosecution witnesses, PW5, testified that he was the owner of the unfinished house. On the material date and time of the commission of the offence, he went to the washroom and decided to stay outside to get fresh air. Within no time, he heard some movements coming from his unfinished house. He approached the same through a front entrance and saw a person running. He then saw something like a human being lying down. He called his wife and asked her to light her torch, whereas they found PW2 with his pant lowered to” his knees and dried feces around his anus. They called the neighbors and his grandmother. Together with PW1, they prepared PW2f rushed him to the police station, then to the hospital. On his deffence, the appellant exonerated himself from the charge. He stated that while on his way to the shop from work, he was arrested by two men who identified themselves as auxiliary policemen and took him to the police station, where he was charged with the present case. He insisted that, he is a person of good reputation, thus faulted the prosecution evidence for being hearsay as no one witnessed him committing the offence charged. Based on the substance of the evidence received, the trial court, found that PW2 (the victim) PW1, and PW5 were credible witnesses, corroborated by evidence of PW3, a medical doctor, who tendered (exhibit PI), hence forth conviction and the sentence respectively. On first appeal to the High Court (Criminal Appeal No. 166 of 2023), the learned Judge upheld the conviction but altered the sentence to thirty (30) years imprisonment, for the reason that a sentence of life imprisonment was improper as the victim was over ten years old. Dissatisfied, the appellant now moves this Court raising six grounds of appeal generally challenging, one; material contradiction of prosecution witnesses, two; visual identification of PW2, and three; failure to call material witnesses, At the hearing, the appellant appeared in person, unrepresented whereas Ms. Rabia Selemani Rmadhani, Senior State Attorney assisted by Mr. Moses Mvungi and Ms. Amina Macha, both State Attorneys,represented the respondent/Republic. When the appellant was invited, to amplify on his grounds of appeal, he prayed to adopt them, then, let the learned Senior State Attorney submit first, while reserving his right to respond later. He implored the Court to consider and allow all the grounds of appeal, quash conviction and set aside the sentence, then let him free. The appellant, on the first issue challenges the prosecution evidence for being incredible and contradictory and therefore it was improper for the first appellate court to uphold trial court findings. The learned State Attorney responded in brief that the evidence of PW1 (grandmother), PW2 (victim), and PW5 (neighbor) was consistent regarding the physical state of the victim who was found unconscious with around his buttocks. It was her view that even if there is any, minor discrepancies; the same do not go to the root of the case. Indeed, the evidence of PW5 who managed to see a person with black short and white shirt, thin and tall running from the scene of crime, directly corroborated the victim's account. This evidence corroborates PW2's evidence of recognition of the~appellant as he~also described the appellant in the same manner. PW1 and PW5 gave same account on a state of the victim at unfinished house and step they took thereafter. Slight discrepancies in testimony of the witnesses of tender age like that of the victim cannot be avoided as long as they do not go to the root of the case. They can be overlooked. See the case of Dickson Elia Nsamba Shapwata & Another v. Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008, TanzLII), Toyidoto s/o Kosima v. Republic (Criminal Appeal No. 525 of 2021) [20231 TZCA 17305 (5 June 2023, TanzLII), and Frank Maganga v. Republic (Criminal Appeal No. 93 of 2018) [2021] TZCA 105 (13 April 2021, TanzLII). It is our view that the alleged contradictions are minor, and they don't go to the root of the case so as to discredit the prosecution's witnesses as correctly submitted by learned Senior State Attorney. On the second issue regarding identification of the appellant by PW2, the appellant's complaint is that the first appellate Judge erred in upholding a conviction based on visual identification, where the intensity and positioning of the solar light were unknown. The respondent counsel submitted that it is true that the intensity of the solar light was not stated by PW2, however, the appellant was identified by the victim by describing the cloth that appellant wore on the date of the incident and that appellant was a person known to PW2. It is a settled law on the evidence of visual identification that, such evidence is of the weakest kind, which in order to be relied on to ground conviction it must be absolutely watertight. The evidence must be watertight and all possibilities of mistaken identity must be eliminated. Before the court can act on such evidence, it must satisfy itself that the conditions were favorable for a proper identification. In the case at hand, the record does not disclose the intensity of the light, the proximity of the light source, or whether the lighting conditions were sufficient to permit accurate identification. The Court in Issa s/o Mgara @ Shuka v. Republic (Criminal Appeal No. 37 of 2005) [2008] TZCA 112 insisted on the need for an identifying witness to explain on the intensity of light. The Court stated that; 7/7 our settled minds, we believe that it is not su fficien t to make bare assertions that there was lig h t a t the scene o f the crim e. It is common knowledge that lam ps be they electric bulbs, fluorescent tubes, hurricane lamps, wick lamps, lanterns etc. give out lig h t with varying intensities. D efinitely, lig h t from a w ick lam p cannot be com pared with lig h t from a pressure lam p or fluorescent tube. Hence the overriding need to give in su fficie n t details the intensity o f the lig h t and the size o f the area illum inated." We are aware of the requirement of the witness explaining the intensity of light in visual identification, especially when it is only one witness who alleges to have identified the assailant. In our view, taking into account that PW2 is a child, it was not possible for him to make description of the intensity of the light from the solar power. Although the appellant was not a stranger to PW2, yet it is not safe to base on the evidence of visual identification as conditions for identification were not favorable. Familiarity alone is not enough to rely on to ground conviction. The witness must give details as to how he identified the assailant at the scene of crime as the witness might be honest but mistaken. Failure by PW2 to explain the intensity, distance and position of the solar light, cast doubts on the evidence of identification of the appellant. In totality, the circumstances were not favorable for proper identification of the appellant by PW2. On the 3rd issue, the appellant's complaint is on failure of the trial judge to draw adverse inference for the prosecution failure to parade two material witnesses. The appellant argues that, Mama Pem'naand Ramadhan should have been called to testify as they were mentioned by PW1, that they informed her that it is him who sodomized the victim. To the appellant, failure by the prosecution to call the two witnesses has a negative impact 8 on the prosecution case.. In response, Ms. Rabia submitted that, in terms of Section 143 of the Evidence Act [Cap. 6], no particular number of witnesses is required to prove a fact. The prosecution's failure to call every possible witness is only fatal if it creates a gap in the narration. In the case at hand, the testimony of the victim and the neighbor who found the victim was sufficient to establish the proof on the offence charged. Thus, the complaint by the appellant is without merit, so insisted the respondent counsel. Having heard both sides on this ground, It is worth noting that it is true that, Mama Penina and Ramadhani, were mentioned by PW1 to have told her that, the appellant was the one who sodomized PW2 as reflected at page 27 of the record when PW1 testified that: "the next day we m et with another person called Ramadhani, who told us that it is A lly who rushed to mama Penina after the incident. I went to ask mama Penina about AH. Mama Penina said AH went there on the day o f the incident She said she went to the scene leaving A ii locking him self inside her house. She said she discovered that AH locked him selfinside her room since after her return she found the door locked. Mama Penina said she asked AH as to why locked him self in and he said he is scaredto be arrested by police. He said he is scared since police are asking everyone about the incident I further asked her to describe him and she said she knew it was AH." From the reproduced evidence above, Mama penina was material witness to testify at the trial court. Mama Penina could have revealed the cloth that appellant had wore as she observed the appellant in very good circumstances to corroborate the victim's and PW5's evidence on the attire. As pointed out by the appellant Mama Penina was not called to testify. We understand, it is upon the prosecution side to decide who should be called as witness and that a particular number of witnesses does not matter. The principal that the prosecution has duty to call material witnesses and not multitude of witnesses is important. The above not withstanding, the rule that the consequences of a party's failure to call a materia! witness depends on the onus of proof flowing out of the facts of the case. A party normally is expected to produce witnesses who are available to be called, are knowledgeable about a material issue, and would be expected to testify favorably on behalf of that party. Failure to call a material witness a person knowledgeable about crucial issue, can lead courts to draw adverse inference, assuming the witness's testimony would have been unfavorable to the party who failed to call them, potentially resulting in acquittal or unsafe conviction. It weakens the case, especially if it hampers proof beyond a reasonable doubts. To emphasize the point, the Court in the case of Aziz Abdallah v. Republic (1991) T.L.R. 71, stated that: "The general and w ell known rules is that the prosecution is under a prim afacie duty to ca ll those w itnesses who, from their connection with the transaction in question , are able to testify on m aterial facts. I f such witnesses are within reach but not called w ithout su fficien t reason being shown, the court m ay draw an inference adverse to the prosecution." As said earlier, Mama Penina was a material witness in the circumstances of this case, but not called to testify for the prosecution case. There is no reason on the record for failure to do so. This has the effects of hampering the prosecution case, especially on proof beyond a reasonable doubts. This anomaly invites this Court upon failure by the two courts below to draw an inference adverse to the prosecution case, for the failure to call such important witnesses. We therefore hold that the insufficiency of the evidence of the victim on the identification on the involvement of appellant was not supported by other witnesses in view of the evidence on the record of appeal. In view of the foregoing, we are of the settled view that, the case against the appellant was not proved beyond reasonable doubt. We thus upset the concurrent findings of the two courts below and find the appeal with merit and accordingly allow it. We consequently quash the conviction and set aside the sentence. Ultimately, we order that the appellant be released forthwith from prison custody unless held for some other lawful cause. DATED at DODOMA this 26th day of March, 2026. A. G. MWARD A JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICEOF APPEAL Judgment delivered this 27th day of March, 2026 in the presence of the appellant in person, unrepresented, Ms. Edith Mauya, learned Senior State Attorney for the respondent/Republic, through Virtual Court and Ms. Tabitha Daniel, the Court Clerk; is hereby certified as a true copy of the original.