Henry Jovin vs Republic (Criminal Appeal No. 496 of 2024) [2026] TZCA 259 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A., MDEMU. 3.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 496 OF 2024 HENRY JO VIN .................................................................................. APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Mwanza at Mwanza) (Mazenao, PRM-Ext. Juris.) dated the 11th day of August, 2021 in RM. Criminal Appeal No. 10 of 2021 JUDGMENT OF THE COURT 25th February & 5th March 2026 LEVIRA, J.A.: This decision focuses on the consequences of failure of the prosecution to call crucial witness who was a child of tender age in a rape case. The appellant herein was arraigned before Sengerema District Court at Sengerema facing rape charge contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code Cap. 16. It was alleged in the particulars of offence that, on 12th April, 2020 at about 14:00 hours in his room at Nyakaliro village i within Sengerema District in Mwanza Region, the appellant had carnal knowledge of one H. A. (name withheld), a girl of 03 years old (the victim). Upon a full trial, he was convicted and sentenced to thirty years imprisonment. Aggrieved by both the conviction and sentence, the appellant appealed to the High Court of Tanzania at Mwanza. The appeal was transferred to the Principal Resident Magistrate with extended Jurisdiction (PRM-Ext. Juris), at the Resident Magistrate's Court of Mwanza. Nevertheless, his appeal was dismissed and the sentence was enhanced to life imprisonment as the victim was below 10 years old. Discontented, the appellant has preferred the present appeal, the memorandum of which comprising seven grounds and other two grounds in the supplementary memorandum of appeal. At this stage we shall not reproduce the grounds of appeal. A brief background of this case is to the effect that, on 12th April, 2020, Witness Moyekela (PW1), also a child, was assigned by her aunt, one Leokadia Buhindi Sangai (PW4) to go to the market to buy tomatoes. She was accompanied by the victim. While on their way around mosque area, they met the appellant who sent PW1 to the shop to by cigarette for him and remained with the victim. When PW1 got back to where she left them, she found the appellant alone, the victim was not there. Upon enquiring him the whereabouts of the victim, the appellant told her that she had already gone home. PW1 decided to make follow up, however, to her surprise, the victim was not at home. She inquired PW4 to know whether the victim was back home, but the response was in negative. Thus, PW4 sent her back to find the victim, which she did, being accompanied by one Nuru, his brother- in-law. They went up to the mosque area, they saw the victim coming from the house of the appellant and she was not walking properly. The appellant was standing at the door. They took the victim. In the meantime, PW4 was following them and when they arrived home, she inspected the victim but did not tell PW1 anything. However, she went to tell the victim's father to arrest the appellant. Thereafter, PW1, PW4, the victim and the victim's mother went to Nyakaliro Police Station to report while the victim's father went to arrest the appellant. In his testimony, Abubakar Mussa (PW2), the victim's father testified that, on the material day, he received an information from PW4 that the victim was raped by the appellant. He went to scene of crime and managed to arrest the appellant and sent him to Nyakaliro Police Station. At the Police Station, they were issued with a PF3 and sent the victim to Bukokwa hospital (Health Center) 3 where she was medically examined and it was proved that she was raped. PW2 took the PF3 back to Nyakaliro Police Station for further action. The next day, PW2 went to the Police and he was interrogated and his statement was recorded. The evidence that the victim was seen coming from the house of the appellant was supported by Steven Godfrey (PW3), who was also involved in searching her. According to him, when the victim was inspected at home, she was found with blood in her vagina. According to PW3, when the victim was asked what had befallen her, she said that, the appellant told her to lay down, undress her underparts and he inserted his penis into her vagina while she was crying. Further that, the appellant told her that, he will give her "pipi "and he gave her TZS. 50.00 for buying "pipi ."He added that, when the victim saw a crowd of people, she returned the TZS. 50.00 and an orange which the appellant had given her. PW4, the aunt of PW1 confirmed that on the material day, she sent PW1 to the market to buy tomatoes and that she was accompanied by the victim. It was also her testimony that, PW1 returned home alone and upon inquiry and search, the victim was found. When they went home she inspected the victim and found a lot of sperms in her vagina which was 4 reddish, a sign that she was raped. Thereafter, the victim was sent to Nyakaliro Police Station and later to Lugusa Health Center by her parents but there was no treatment. Later, they went to Bukokwa Health Center. In the evening, the victim told her that, the appellant inserted his penis into her vagina and he applied 'Vrate'^saliva) on his penis before inserting it into the victim's vagina. Derick Harun Mashauri (PW5) from Bukokwa Dispensary testified to have received the victim on the material day and examined her. He discovered that the victim's vagina was injured and penetrated which proved that, she had sexual intercourse. He then, filed the PF3 which was admitted as exhibit PI during trial. The mother of the victim one Husna Sadick (PW6) also testified to have received the information regarding what had befallen her daughter. It was also her testimony that the victim was born on 10th October, 2016. WP 7410 DC Mponela (PW7) was the last prosecution witness. She testified that on 14th April, 2020, is when she was assigned by the OC CID Beda Musoma to investigate the case. The best she did, was to interrogate the parents of the victim and record their statements. In his defence, the appellant denied the charge. According to him, while he was in his normal business, a certain person went there, hit him on the head and told him that "kumbe ndio tabia yako." Thereafter, he was arrested and sent to Police Station. He added that, the said man told him to leave his wife while asking him whether he has seen what has happened to him. The appellant replied to him that, he had no affairs with his wife. It was also his testimony that, while at Nyakaliro Police Station, he was beaten and his cautioned statement was recorded at Sengerema Police Station. According to him, the testimonies by prosecution witnesses were nothing but pure lies. He insisted that he did not commit the offence with which he was charged. The trial court weighed the evidence by the parties and found that, the prosecution proved its case to the required standard. As a result, it convicted and sentenced the appellant as shown earlier. His conviction and sentence were upheld by the first appellate court and the sentence was enhanced as introduced above. This appeal was scheduled for hearing on 25th February, 2026 and the parties appeared before us. The appellant was unpresented, whereas the respondent Republic had the services of Mr. Morice Mtoi, learned Senior Sate Attorney assisted by Ms. Brenda Mayalla, learned State Attorney. The appellant adopted his grounds of appeal as part of his oral submission before 6 the Court. He reserved his right to rejoinder after hearing a reply from the respondent Republic. Mr. Mtoi supported the appeal right away on the appellant's sixth grounds of appeal. For easy of reference, we quote it as hereunder: 1 T h a t t h e prosecution side failed to prove the offence beyond all reasonable doubts considering the alleged fictitious victim was not mentally disturbed and was having capacity to talk that is why she narrated to those witness(s) but was not called to testify before the court." The learned counsel conceded that, it is true that the victim was not called to testify at the trial. He submitted that, the trial Magistrate noted that the victim was not called to testify but proceeded to convict the appellant. He argued that, since there were two prosecution witnesses who testified that they inquired and the victim narrated to them what had befallen her, then, she was supposed to be brought before the court to testify. He added that, if there was any reason hindering her from testifying, the trial court could assess, record the findings and proceed with the hearing; but that was not done. According to him, the irregularity is serious and its effect was that the prosecution did not prove the case against the appellant beyond reasonable doubt. He submitted, had it been that the victim was brought to the court, she could prove penetration. As for him, this ground alone is capable to dispose of the appeal and he found no need to argue other grounds. Finally, he urged us to allow the appeal. In rejoinder, the appellant prayed to be set free on account that, he did not commit the offence he was charged with. Having heard the parties' submission and thoroughly gone through the record of appeal, the issues for our determination are two; to wit, whether the victim was a competent witness to testify and what are the consequences of the failure to testify. The parties to this case are at one, and indeed, the record of appeal speaks for itself that, the victim of rape in the present case did not testify during trial. The law is settled regarding who is a competent witness to testify before the court. Section 135 (1) of the Evidence Act, Cap. 6 R.E. 2023 provides: "135 - (1) Every person shall be competent to testify unless the court considers that he is incapable o f understanding the questions put to him or o f giving rational answers to those questions by reason o f tender age, extreme old agef disease 8 (whether of body or mind) or any other similar cause."[Emphasis added]. The provision above provides for exceptional circumstance which may drive the court to make a finding that a certain person is not competent to testify, otherwise, every person is competent to testify before the eyes of the law. Among the exceptions is tender age, within which the victim in the present case falls. The wording of the provision referred to above, does not provide this exception as an automatic right, but it is subject to assessment by the court. This means, it is only the court which is mandated to rule out whether a person is competent to testify or otherwise, not a party to a case, relative, prosecution, advocate, guardian or any other person. For that reason, any person (victim inclusive) must appear before the court for it to make an assessment, as far as his competency to testify is concerned, not otherwise. In the present case, the victim was of tender age, three years old as per the charge and evidence of her mother (PW6) who testified that she was born on 10th October, 2016 and PW5 who examined her. Therefore, it was incumbent upon the prosecution to call her as a witness and if due to her age could not understand the questions put to her or give rational answers 9 to those questions by reason of her tender age, the trial court could assess and note the findings. We have carefully scrutinized the record of appeal but could not trace such a finding. We agree with the learned Senior State Attorney that, at page 82 of the record of appeal, the trial Magistrate only noted in passing as follows: '7 am satisfied that due to the circumstances surrounding in this case, although the victim did not testify before the court due to her age , the prosecution side proved that the accused person is the one who raped the victim. On the other side the accused in his defence failed to raise doubt against the evidence produced by prosecution witnesses." [Emphasis added] From the extract above the question that follows is, how the trial Magistrate knew that the victim was prevented by her age to testify if she was not brought before the court? The record of appeal does not provide an answer to this question. Nonetheless, it provides for a worse scenario where prosecution witnesses (PW3 and PW4) whom the trial court relied on their testimonies to convict the appellant, testified that they inquired and the victim told them it was the appellant who inserted his male organ in her 10 vagina (raped her). The question remains and indeed, it creates doubt that, if the victim was able to narrate what had befallen her to those witnesses, why then she was not brought to the court to testify? In the circumstances, was it safe to conclude that she was prevented by her tender age? Certainly no! If the trial court could have considered the appellant's defence vis a vis failure of prosecution to bring the victim as a witness, it could not have jumped into a conclusion that, she was prevented by her tender age which it did not assess. It is very unfortunate that the first appellate court, just as the trial court, believed the evidence of prosecution witnesses as credible, forgetting that there was no justification for not producing the victim as a witness during trial. Our assessment of the entire record of appeal; particularly, the evidence on record, leads us to a finding that the victim was a crucial witness in this case. Failure by the prosecution to call her as a witness was not justified. Therefore, it remains that, the prosecution failed to call material witness in this case. The outcome of it, is our entitlement to draw adverse inference to the prosecution, as we accordingly do. We, as well, find that since none among the seven prosecution witnesses who testified said that he /she saw the appellant while penetrating 11 the victim, it cannot be concluded that the charge of rape against the appellant was proved beyond reasonable doubt, for penetration is one of the essential elements to be prove. We equally hold so. Consequently, we allow the appeal, quashed conviction and set aside the appellant's sentence. We order that, the appellant be released from prison immediately unless held for other lawful reasons. DATED at MWANZA this 4th day of March, 2026. The Judgment delivered this 5th day of March, 2026 in the presence of the Appellant in person, Mr. John Saimon Joss, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true capy of the original. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL 12