Petro Amsii vs Republic (Criminal Appeal No. 288 of 2024) [2026] TZCA 321 (18 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MWANDAMBO. J.A.. MWAMPASHI, J.A. And MLACHA, J.A.) CRIMINAL APPEAL NO. 288 OF 2024 PETRO AMSII ..................................... ........................ APPELLANT VERSUS THE REPUBLIC .............. ..................... ........................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Manyara) ( Kahvoza, J.^ dated the 07th day of February, 2024 in Criminal Appeal No. 109 of 2023 JUDGMENT OF THE COURT 24th February & 18th March, 2026 MWAMPASHI. J.A.: This is an appeal by Petro Amsii, the appellant herein, challenging the decision of the High Court of Tanzania sitting at Babati Manyara (Kahyoza, 1) that upheld the conviction and sentence passed against him by the District Court of Babati (the trial court) in Criminal Case No. 10 of 2023. Initially, the appellant was arraigned before the trial court charged with the offence of grave sexual abuse contrary to section 138C (l)(d) and 2(b) of the Penal Code, Cap. 16 (the Penal Code). After a full trial, the appellant was found guilty, convicted and sentenced to serve a period of 30 years in prison. As alluded to above, the appellant lost his first appeal which was found to be lacking in merit hence the instant second appeal before the Court. It was alleged by the prosecution that, on 09.12.2022 at Mruki area within the District of Babati in Manyara Region, for sexual gratification, the appellant gravely abused a four years old girl henceforth to be referred to as W PW1" or "Victim" by inserting his finger into her female organ (vagina) without her consent. The prosecution case against the appellant was built on the evidence from six witnesses and two documentary exhibits; a sketch map of the scene of crime and a PF3. It goes thus; on 09.12.2022 at around 10:00 hours, the victim's grandmother one Theresia Michael (PW4), was at the house of one Rose washing clothes while the victim who had accompanied her was playing around with other children close to the appellant's house. After about 30 minutes, PW4 decided to check out how the victim was fairing and that is when she allegedly saw her coming out of the appellant's house. She suspected nothing as the victim looked okay in her normal state and appearance. PW4 took the victim to the place where she had been washing clothes, stayed there with her until at 14:00 hours when they returned home. At 20:00 hours, the victim's mother, Petronila Peter (PW2), came back home from her daily bread-earning hustles and was bathing the victim when the victim complained that she was feeling severe pain from her vagina. She also told PW2 and PW4 that the appellant had inserted his finger in her vagina. It was PW4's further testimony that they examined the victim and observed that her vagina was reddish. Then on the next day when they were attending Smail Christian Community prayers, the victim pointed at the appellant to her mother (PW2) as the one who had inserted his finger in her vagina. According to the victim, it was when she was playing with other children near the appellant's house when the appellant asked her to go in his house wherein, he produced his penis before inserting his finger in her vagina. Thereafter, the appellant let her out where she rejoined her friends and continued to play with them. The victim claimed that she disclosed to PW4 what the appellant had allegedly done to her. The testimony of the victim's mother (PW2) was to the effect that in the evening hours of 09.12.2022 she was bathing the victim when she complained that she was feeling pain in her vagina. Upon inquiring her, the victim told her that the appellant had inserted his finger in her vagina. On the next morning which was Saturday she with the victim went to attend Small Christian Community prayers where the victim pointed to her the appellant as the one who had inserted a finger in her vagina. PW2 approached the appellant who denied the accusations but pleaded with her and asked her not to let people know about the accusations. Nevertheless, PW2 reported the case to the police hence the appellant's arrest at Kitintali area. There was also evidence from the victim's father one Elibariki Shabani (PW6) whose testimony was to the effect that, on 10.12.2022 his wife (PW2) called to inform him that the appellant had inserted his finger in the victim's vagina. He also told the trial court that, a PF3 was issued to him at the police station before he took the victim to the hospital. The victim was medically examined by Dinnah Loiruck Tomito (PW5), a medical doctor stationed at Babati Town Council Hospital on 10.12.2022. According to PW5, the victim's genital organs (vagina) had nothing abnormal. She testified that there were even no bruises in the victim's vagina which suggested that nothing had been inserted therein. To that effect, PW5 tendered a PF3 which was admitted in evidence as exhibit PE2. G.539 D/Cpl. Tumaini of Babati Police Station testified as PW3 telling the trial court that the case file was assigned to him for investigation on 13.12.2022. He recorded statements from witnesses and on 10.12.2022 being led by PW2, he arrested the appellant at Mruki street where Small Christian Community prayers were being conducted. Then on 14.12.2022 he visited the scene of crime and drew a sketch map which was tendered and admitted in evidence as exhibit PEI. In his sworn defence, the appellant (DW1) disassociated himself from the charged offence. He told the trial court that on 10.12.2022 he was attending Small Christian Community prayers when, at the end of the prayers, PW2 took him outside and accused him of inserting his finger in the victim's vagina. He refuted the claims but later a police officer who was being led by PW2 arrested him at Maisaka B where he had gone for local brew. The appellant's wife Katarina Lutu (DW2) came to the appellant's defence telling the trial court that on the material date and time she did not see the victim at their house. After a full trial, the trial court found the case against the appellant proved to the required standard. The victim's testimony that the appellant asked her to get in his house and inserted his finger in her vagina was found truthful. It was also found that the victim's evidence in that respect was supported by PW4 who saw her coming out of the appellant's house. Based on that evidence, the appellant was thus found guilty as charged, convicted and sentenced in the manner we have earlier intimated. On the first appeal, the High Court upheld the trial court's findings and decision. Like the trial court, the High Court found the victim's testimony credible, reliable and sufficient to support the appellant's conviction. In its judgment, however, the High Court acknowledged the presence of some discrepancies in the prosecution case which were found to be minor not going to the root of the case. PW4's evidence that she saw the victim coming out of the appellant's house, was discredited by the High Court on account that if that was the case, PW4 could not have failed to take necessary action. The victim's evidence that the appellant took her in his house and inserted his finger in her vagina was believed and found sufficient to prove the case against the appellant beyond reasonable doubt. When the appeal came before us for hearing, the appellant was represented by Messrs. Godfrey Wasonga and Tadey Lister, learned advocates. The respondent Republic had the services of Ms. Mary Lucas, learned Principal State Attorney. In support of the appeal, the appellant had, on 04.11.2024, filed a memorandum of appeal containing 7 grounds of complaint. Later, on 23.02.2026, Mr. Wasonga lodged a supplementary memorandum of appeal comprising 9 grounds. However, before the commencement of the hearing of the appeal, Ms. Lucas expressed her stance that she was supporting the appeal on the 1s t ground of appeal in the supplementary memorandum of appeal which is to the effect that, the case against the appellant was not proved to the required standard. In view of the concession of the appeal by Ms. Lucas, Mr. Wasonga abandoned all other grounds of complaint. Having supported the appeal on the ground that the case against the appellant was not proved to the hilt, as we have intimated above, it was Ms. Lucas who took the floor first. In her brief but focused submission, the learned Principal State Attorney argued that, there was no sufficient evidence to prove that the appellant inserted his finger in the victim's vagina. She pointed out that, the victim's claim that the appellant inserted his finger in her vagina which constituted one of the essential ingredients of the offence of grave sexual abuse, stood alone without support of any other piece of evidence and it was dented by contradictions and inconsistencies of the prosecution evidence. To substantiate her argument Ms Lucas referred us to PW5's medical evidence and exhibit PE2 which was to the effect that nothing of that nature had happened to the victim. Ms. Lucas also referred us to PW4's evidence indicating that when the victim came out of the appellant's house she was in her normal state and appearance. It was also argued that while PW4 testified that the victim was examined by her and PW2 and that it was observed that the victim's vagina was reddish, there was no such evidence from PW2. Citing the decision of the Court in Andrew Lonjile v. Republic [2020] T7CA 293, the learned Principal State Attorney contended that the ingredients of the offence of grave sexual abuse were not proved against the appellant. She therefore urged the Court to allow the appeal by quashing the conviction and setting aside the sentence meted against the appellant. Mr. Wasonga was in total agreement with Ms. Lucas. He insisted that the case against the appellant was not proved and further that the victim's uncorroborated evidence ought to have been acted upon cautiously. On this, he referred the Court to the case of Hamis Halfan Dauda v. Republic [2020] TZCA 1958 where it was, inter alia, stated that in sexual offences, evidence from victims should not be accepted and believed wholesale but should also be critically evaluated so as to avoid the danger of untruthful victims utilising the opportunity to unjustifiably incriminate the otherwise innocent persons. He thus prayed for the appeal to be allowed. In essence, the submissions made by both parties in support of the appeal, challenge the concurrent findings of the two lower courts on the credibility and reliability of the prosecution witnesses, particularly that of the victim (PW1). The issue being raised here is whether, in the circumstances of the case, the concurrent findings of facts by the two lower courts can be interfered with in a second appeal This issue brings us to a long-time settled principle that, where there are concurrent findings of facts by two lower courts, the Court should not readily interfere with the findings unless it is clearly shown that there has been a misapprehension of the substance, nature and quality of the evidence or a violation of some principles of law or procedure occasioning miscarriage of justice. See- DPP v. Jaffar Mfaume Kawawa [1981] T.L.R. 149. It is also a trite principle of law that, though it is the trial court which is in a better position to assess the credibility of a witness, an appellate court can also determine credibility by assessing the coherence of the evidence of the witness. The evidence of a witness may not be believed where for instance, the witness gives improbable, implausible or inconsistent evidence or where his evidence is materially self contradictory or it is contradicted by another witness. See- Shabani Daud v. Republic [2004] TZCA 84. Guided by the above stated principles, and having carefully examined the evidence on record, it is our considered view that the two courts below misapprehended the substance, nature and quality of the evidence. As rightly argued by the counsel for the parties, under the circumstances of this case, the prosecution evidence was incapable of grounding the conviction. The essential ingredient of the charged offence which the prosecution was duty bound to prove beyond reasonable doubt was the insertion of the appellant's finger in the victim's vagina which was not proved as conceded by Ms. Lucas. First of all, the evidence of the victim and PW4 on the allegation that the victim went in the appellant's house is incompatible and doubtful. Whiie PW4's testimony was to the effect that when she was looking for the victim, she saw her coming out of the appellant's house and took her to where she was washing clothes where she stayed with her till when they went back home, the victim's account was that after the appellant had let her out, she went back to where her friends were and proceeded playing with them. There was no evidence from the victim that after getting out she saw or met PW4. The victim also claimed that she disclosed to PW4 what the appellant had allegedly done to her. However, to PW4, it was not until when PW2 was bathing the victim when the victim complained that the appellant had allegedly inserted his finger in the victim's vagina. Further, as we have alluded to earlier, the High Court believed the victim and discredited PW4 wondering why she did not take any action if she really saw the victim coming out of the appellant's house. However, the victim's evidence that she had been in the appellant's house wherein the appellant inserted his finger in her vagina, was believed to be true. The High Court concluded that the discrepancy between PW4 and the victim in that respect, was immaterial. We respectfully differ with the High Court's conclusion that the discrepancy was minor. It is our considered view that because one cannot tell with certainty who between the victim and PW4 was truthful in that respect, then the victim's evidence ought to have also been discredited as it was for PW4. If really the victim went to the appellant's house and the charged offence was committed against her by the appellant as claimed by the prosecution, how comes the victim and PW4 gave different account on what happened after the victim was allegedly released from the appellants house? It might have been that it was the victim and not PW4 who lied when she claimed that after getting out of the appellant's house she went back to where her friends were and not that she was received by PW4 and went with her to where PW4 had been washing clothes. We hold that the inconsistency between the victim and PW4 as pointed above, was material as it dented the credibility and reliability of both two witnesses. The other piece of the prosecution evidence raising a reasonable doubt on the prosecution case is in respect of the fact that the appellant was arrested on 10.12.2022 after the victim had pointed him to PW2 at the Small Chistian Community gathering. We found it very implausible that the appellant, who was well known to both PW2 and PW4 and who was allegedly implicated by the victim in the evening hours of 09.12.2022, his arrest had to wait till the next day and after the victim had pointed him to PW2 at the Small Chistian Community gathering. It is not clear what prevented PW2 and PW4 to take required necessary actions including reporting the appellant to the police immediately after the victim had allegedly disclosed that the appellant had in the afternoon inserted his finger in her vagina. It should also be borne in mind that even PW6 who is the victim's father was informed of the incidence by PW2 on 10.12.2022 after the appellant had been ii arrested. The above unanswered question leaves a lot to be desired on the truthfulness of the allegations that the appellant inserted his finger in the victim's vagina. Yet again, there is also a contradictory piece of evidence given by the case investigator and the arresting officer (PW3) who testified that he arrested the appellant at Mruki Street where people had gathered for Small Chistian Community prayers. PW3 contradicted the evidence of PW2 and even of the appellant whose evidence was to the effect that, the appellant was arrested at Kitintali area while enjoying his local brew. Under the circumstances of this case where it was doubtful that the victim really went to the appellant's house and that she was so sexually assaulted by the appellant, the contradiction is not minor. It goes to the root of the cogency of the prosecution case against the appellant. All said and done, we agree with the learned counsel for the parties that the prosecution evidence and particularly that of the victim, could not be relied upon in convicting the appellant. The concurrent findings of fact by the two courts below cannot, in the circumstances, be left to stand. They were a result of misapprehension and misdirection of the evidence on record leading to miscarriage of justice. They are accordingly set aside. That means the case against the appellant was not proved to the hilt as the law requires. The appeal is thus, allowed, the conviction is quashed and the sentence 12 meted against the appellant is set aside. It is ordered that the appellant be set at liberty forthwith unless he is held for any other lawful cause. DATED at DODOMA this 17th day of March, 2026 L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered Virtually this 18th day of March, 2026 in the presence of appellant in person and Ms. Caroline Kasubi, learned State Attorney for the respondent and Ms. Anna Utou, Court Clerk; Court is hereby DEPUTY REGISTRAR COURT OF APPEAL certified iy of the original. R. W. CHAUNGU 13