Nuhu Daud Mghensa vs Republic (Criminal Appeal No. 362 of 2022) [2025] TZCA 1078 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MWANPAMBO. 3.A.. MAIGE, 3,A. And MANSOOR. 3.A.^ CRIMINAL APPEAL NO. 362 OF 2022 NUHU DAUD MGHENSA ......................................................... APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Iringa at Iringa) (M.A. Malewo. PRM- Extended 3urisdiction.^ dated the 7th day of November, 2021 in PRM Criminal Appeal No. 6 of 2021 JUDGMENT OF THE COURT 6th & 13th October, 2025 MWANPAMBO. 3.A.: The appellant was convicted by the District Court of Iringa of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code. The particulars in the charge alleged that, on the night of 16 March 2020, the appellant had carnal knowledge of JN, a young boy aged 11 years at the time. Upon such conviction, the appellant earned life imprisonment. As his first appeal to the Resident Magistrate's Court (M.A. Malewo, PRM) of Iringa with extended jurisdiction was not successful, the appellant preferred this second and final appeal to this Court.

The evidence led by the prosecution in support of the charge on the basis of which the trial court found the appellant guilty as charged can be briefly set out thus: The victim (JN) who testified as PW1, stayed with his grandmother (PW2) together with three uncles in a house situate at Kihesa, Iringa Municipality. On the night of 16 March 2021, the appellant who was at the siting room is said to have sneaked in the bedroom occupied by PW1 with a view to administer some unspecified medicine into the victim's anus. Instantly, the appellant who was naked had the victim sleep upside down, undressed him before he allegedly inserted his penis into the victim's anus. Since the appellant covered the victim's mouth with a bed sheet, he could not raise an alarm coupled by a threat to him to bite his cheek if he dared doing so. As lucky would have it, the victim managed to escape from the bedroom and ran outside where he met uncle Steve who was already inebriated. Besides, according to PW1, uncle Steve had the habit of biting him whenever he spoke to him so he refrained from disclosing the ordeal to him. At best, despite the appellant's attempt forcing him to return to the bedroom to complete the administration of the medicine, PW1 resisted. Instead, he spent the rest of the night outside the room for his safety until in the morning when he dressed up and went to school. Upon return from school late in the evening, PW1 complained to his

grandmother (PW2) about pains in his anus. However, despite PW2's interrogation as to the cause of the pains, PW1 was not forthcoming in disclosing the source until later when he told his grandmother of the medicine the appellant was trying to administer to him, the previous night. Upon inspection, PW2 witnessed bruises on PW l's anus and subsequently, PW2 took PW1 to the Police. After obtaining a PF3, she took the victim to Ngome Dispensary where, Rashid Richard Mihayo, a Clinical Officer who testified as PW4, examined the victim. PW4's findings which he posted in the PF3, revealed existence of bruises in the anus which was reddish at the time of the examination. He tendered the PF3 which was admitted in evidence as exhibit P2. Additionally, the trial court relied on the appellant's caution statement, (exhibit PI) which was however, found to have been irregularly admitted and expunged from the record by the first appellate court. Not surprisingly, in his defence, the appellant denied having committed the offence despite the cautioned statement which he claimed to have been procured by force. Nevertheless, the trial court found the defence illusory satisfied that it had not shaken the evidence adduced by prosecution witnesses and the exhibits in support thereof. As alluded to earlier on, although it allowed the appellant's complaint against reliance on exhibit PI which it found illegally admitted 3

for being taken outside the prescribed period and expunged it, the first appellate court concurred with the trial court on the appellant's guilt and dismissed his appeal. Before us in this appeal, the appellant faults the first appellate court's decision on six grounds of appeal including the complaint based on the cautioned statement which was expunged by the first appellate court. All the same, Mr. Sauli Makori, learned State Attorney, representing the respondent Republic did not contest the appeal on the basis that, the evidence of identification by voice was doubtful which could not have grounded the impugned conviction. Counsel reinforced his contention with the Court's decision in Abel Masikiti v. Republic [2015] TZCA 8 to argue that, the evidence of visual identification by recognition through voice is the weakest and unreliable kind of identification which should only be acted upon if there is other cogent corroborative evidence. Nonetheless, we think the learned State Attorney misapplied the ratio in Abel Masikiti to the facts in the instant appeal. For clarity, the Court stated: "The circumstances in the present case are slightly distinguishable from those relied on by Mr. Pande in the cases o f Somi Semi v. Republic and Jacob @Mafuwe & Another v. Republic, he cited before us. In those cases, although the victims also claimed to have known the suspects before, they did not describe their build or attire.

Although in the two cases above, the victims were also robbedthe encounter did not last long after grabbing the victims' properties. Here, after robbing, the appellant and his confederates, took turns to rape PW3, thus necessitating a closer encounter." It was not disputed in the instant appeal that appellant and the victim were uncle and nephew, respectively, staying in the same house. According to PW1, sneaked into the bedroom to administer the medicine into the victim's anus, threatened to bite him and later followed him outside the room for completion of the exercise. In our view, all things being equal, that would have been sufficient to prove positive identification. Otherwise, in a fitting case, that would be tantamount to permitting subtle and remote possibilities to deflate the course of justice frowned upon in Miller v. Minister of Pensions [1947] 2 All ER 372 quoted with approval by the Court in its various decisions, in particular, Magendo Paul Another v Republic [1993] T.L.R. 85. The above notwithstanding, the question remaining for our consideration is whether the charge was proved to warrant conviction. By necessity, we shall have to interrogate whether, despite the settled law that true evidence in sexual offences must come from the victim, was PW l's evidence truthful and reliable proving the charged offence?

According to the evidence on record, when the appellant stormed into PW l's room suggesting application of medicine, PW1 said nothing and within moments, the appellant who was allegedly naked, undressed the victim and laid her on his stomach during which, he inserted his penis into his anus before escaping from him outside the room where he found uncle Steve. According to him, he refrained from asking for help from uncle Steve because, not only he was already drunk, but also fearful of being beaten. While it may be true that uncle Steve was drunk and possibly hostile, we do not think a horrified boy at that young age who had just escaped from sexual molestation could quietly pass by the said uncle without running to him for rescue even if he was drunk. Similarly, the evidence of PW2 who was staying with PW1 is silent on her whereabouts on the material night to whom he could have easily broken the awful news that very night but found it safe to spend the night outside the house. Furthermore, it does not appear to us to be usual for PW1 who had been molested by his uncle forcing him to abandon his room during the night to have smoothly dressed up and proceeded to school without informing PW2 in the morning. Worse still, in his own evidence at page 16 of the record, apart from complaining of pains to PW2 later in the evening, PW1 was reluctant to disclose the source of the pains until after

a long questioning. Granted that PW1 was threatened by his uncle of a biting should he raise alarm during the encounter but, we do not think such threat could have persisted beyond the encounter and prevent him from disclosing such devilish act to his grandmother despite her questioning in the evening. In our view, the failure to disclose the ordeal at the earliest and reluctance in informing PW2 had a bearing on his credibility. As we said in Marwa Wangiti Mwita & Another v. Republic [2002] TLR 39, failure to disclose a wrongful act and mention a suspect at the earliest opportunity is pernicious to the witness's credibility. In this case, PW l's conduct was circumspect so much so that it dented his credibility affecting reliability of his evidence which, as we have stated in various cases, cannot be taken as gospel truth where as it were, the court is satisfied that the credibility of the victim of sexual offence is doubtful. See for instance for instance: Mohamed Said v. Republic [2019] TZCA 252 and Damian Manyika @Babu Tanga v. Republic [2024] TZCA 451, amongst others. In view of the foregoing, we agree with the learned State Attorney that the case against the appellant was not proved to the required standard applicable in criminal cases. It was dented by doubtful credibility in PW l's evidence on a material respect. In our view, despite existence of bruises on his anus, that was not by itself sufficient to prove that they

were a result of the appellant's act on the material night or perhaps due to other causes not necessarily as a result of penetration in the hands of the appellant. On this, we are reminded by the ancient wisdom by William Blackstone an English jurist, who said in 1765 that, it is better that ten guilty persons escape than one innocent man convicted. In the event, we are constrained to allow the appeal, quash the appellant's conviction as we hereby do and substitute it with an acquittal which shall result in his immediate release from prison unless lawfully held therein. DATED at IRINGA this 10th day of October, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 13th day of October, 2025 in the presence of Appellant in person - unrepresented, Ms. Atupelye Makoga, learned State Attorney for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. 0. H. KINGWELE DEPUTY REGISTRAR COURT OF APPEAL