Emmanuel Peter Mushi vs Republic (Criminal Appeal No. 845 of 2023) [2025] TZCA 955 (10 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. J.A.. KHAMIS. 3.A. And AGATHO, J.A/i CRIMINAL APPEAL NO. 845 OF 2023 EMMANUEL PETER M USH I ......... .......................................APPELLANT VERSUS THE REPUBLIC ...................... ................................... ...... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dares Salaam) flsmail, J.^ dated the 4th day of August, 2022 in Criminal Appeal No. 35 of 2022 JUDGMENT OF THE COURT 19th March, & 10th September, 2025 SEHEL. 3.A.: In the District Court of Kibaha at Kibaha (the trial court), the appellant was arraigned and convicted for grave sexual abuse contrary to section 138C (1) (a) and (2) of the Penal Code. He was sentenced to serve twenty (20) years imprisonment. His appeal to the High Court of Tanzania at Dar es Salaam (the first appellate court) was dismissed in its entirety, hence, this second appeal. It is unfortunate the judgment could not be delivered in time. Nonetheless, according to the particulars of the offence, it was alleged by the

prosecution that, on 7th October, 2020 at Kongowe area within Kibaha District in Coast Region, for sexual gratification without her consent, the appellant inserted his fingers into the vagina of a three-year-old girl whom we shall refer to as the victim or PW4. On the fateful day, PW4 and her seven-year-old brother PW2, ventured to the appellant's house to play, a routine behaviour in their quiet neighbourhood, As the sun dipped low and shadows lengthened, the appellant unexpectedly sent PW2 home alone, leaving his little sister behind. When PW2 arrived home alone, their mother (PW1) was alarmed and trusting her instincts, she urged her son to return at once and bring his sister back. Upon his return, PW2 found the appellant inside his room with PW4 but sensed no danger. Unaware of what had happened, he took his sister and walked with her back home. Later that evening, during a routine bath, PW1 noticed something troubling. Her daughter flinched with pain when touched near her private parts. Gently but persistently, she asked what had happened. With the innocence of a child and the courage no one should have to summon, PW4 revealed that the appellant had hurt her, by inserting his fingers into her private area, causing her 2

discomfort and pain. Distressed and determined to protect her daughter, PW1 rushed PW4 to Tumbi Hospital for a thorough medical examination. At the hospital, Chaise Kaila (PW3), a medical doctor, attended the victim. She observed redness and bruises around outer lips of posterior vaginal wall but no evidence of vagina! penetration. She also observed the victim was feeling pain whenever touched on her genitalia. In the end, PW3 opined that the victim was sexually assaulted. She transmitted her findings in the special medical examination form, commonly known as PF3, that was tendered and admitted in evidence as exhibit PI. The matter was reported at Kibaha Police Station where an Assistant Inspector of Police, Asha (PW5) investigated the case and also visited the scene of crime in the presence of an assistant ten cell leader for Kongowe area, Shabani Ally Juma (PW6). At the scene, the victim showed PW5 and PW6 the room in which the ordeal took place. Later on, the appellant was arraigned before the trial court. In his defence, the appellant denied to have committed the offence and associated the case with bad blood between himself and PW1. He claimed that PW1 seduced him into love affair and wanted to

be given a piece of land for cultivation but he refused. He also called two witnesses, Anisue Patrick (DW2) and Happiness Mushi (PW3). Both DW2 and DW3 told the trial court that they were involved in trying toresolve the criminal case out of court but PW1 insisted to be paid TZS. 5,000,000. 00 in order to drop the charges. Since,they were unable to raise the money, the appellant was taken to court for trial. In the end, the trial court was satisfied that the prosecution proved its case to the required standard, thus, convicted and sentenced the appellant as aforesaid. The appellant has now approached the Court with the following five grounds of appeal: " 1. That, the learned first appellate Judge erred in law and fact in upholding the appellant based on the evidence o f PW2 and PW4 the witnesses o f tender age whose testimonies was received in contravention o f section 127 (2) o f the Evidence Act, the omission which rendered the same evidence lack value to ground the appellant's conviction as charged. 2. That, the learned first appellate Judge erred in taw and fact in upholding the appellant's conviction when the evidence o f PW1, PW2,

PW4, PW5 and PW6 was barely incredible, improbable, untruthful and unreliable to warrant the appellant's conviction beyond reasonable doubts. 3. That, the learned first appellate Judge erred in law and fact in upholding the appellant's conviction without considering the doubtful delay to arrest the appellant from 7th October, 2020 to 4 h November, 2020 the omission which cast doubt in the prosecution's case. 4. That, the learned first appellate Judge erred in law and fact in upholding the appellants conviction when the defence evidence was wrongly disregarded and or rejected while the same raised a reasonable doubt in the prosecution case in respect o f the commission o f the alleged offence. 5. That, the learned first appellate Judge erred in law and fact in upholding the appellant's conviction as charged when the prosecution evidence adduced in court was weak, insufficient, incredible, doubtful, contradictory, unreliable to establish the appellant's guiit beyond reasonable doubt as required by section 3 (2) (a) and 110 (1) (2) o f the Evidence Act." 5

At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas, Ms. Elizabeth Olomi, learned Senior State Attorney, assisted by Mses. Rachael Dann and Asifiwe Mnzava, learned State Attorneys, appeared for the respondent Republic. When given a chance to submit on the grounds of appeal, the appellant adopted his written arguments filed earlier. In his written arguments, he added one additional ground of appeal that: "The learned first appellate Judge erred in law and fact by upholding the appellant's conviction and sentence whereby the trial court was partial and/or breached the principle o f fair hearing/trial which is entrenched in the Constitution o f the United Republic o f Tanzania ; 1977 as emended from time to time (the Constitution) as the trial court denied the appellant with an opportunity to conduct examination in chief to his defence witnesses contrary to the procedure o f law." After adopting the written submissions, the appellant had nothing to add or highlight. On the other hand, Ms. Mnzava strongly opposed the appeal and intimated that she would reply to the grounds of appeal in the 6

same sequence submitted by the appellant in his written arguments whereby the first and additional grounds of appeal were separately argued but the second, third, fourth and fifth grounds of appeal were consolidated. In the first ground of appeal, the appellant argued that the evidence of PW2 and PW4 was received without conducting a proper voire dire test. Ms. Mnzava briefly replied that, following the amendment in 2016, the requirement to conduct voire dire test in order to establish whether the child of tender age knows the nature of oath or possesses sufficient intelligence for reception of his/her evidence is no longer there. She contended that, as the law now stands, the child of tender age is required to promise to tell the truth and not lies to the trial court. She pointed out that, according to the record of appeal, PW2 was a child of 8 years and promised to tell the truth before giving his evidence. Also, PW4 was a child of 3 years and promised to tell the truth before giving her evidence. She referred us to the case of Daktari Jumanne v. The Republic (Criminal Appeal No. 602 of 2021) [2023] TZCA 18020. Therefore, she urged the Court to dismiss this ground of appeal.

From the submissions made by the parties, we are invited to determine whether the upholding of the appellant's conviction by the first appellate court was proper while the evidence of PW2 and PW4 was received by the trial court without conducting a voire dire test. In order to adequately determine this issue, we need to revisit section 127 (2) of Evidence Act (the EA) which guides the reception of evidence of a child of tender age. Section 127 (2) of EA provides: "A chiid o f tender age may give evidence without taking an oath or making an affirmation but shaii, before giving evidence, promise to telI the truth to the court and not teii any lies ." From the above provision of the law, a child of tender age can give evidence without taking an oath or affirmation but before the reception of such evidence, the child must promise to tell the truth to the court and not to tell lies. As soundly argued by Ms. Mnzava, the Written Laws (Miscellaneous Amendments) (No. 2) Act, 2016 (Act No. 4 of 2016) which came into force on 8th July, 2016 removed the requirement of conducting voire dire test. In the appeal before us, we discerned from the record of appeal that having noted that it was faced with witnesses who were of tender

age, the trial court probed the child witnesses whether they will tell the truth and not lies. Each witness promised to tell the truth. This is gathered at pages 8 and 15 where both PW2 and PW4 respectively promised to tell the truth and not lies. Accordingly, we are satisfied that the procedure adopted by the trial court before receiving the evidence of PW2 and PW4 was done in compliance with section 127 (2) of the EA. For sake of emphasis and completeness, the first appellate court correctly upheld the conviction and sentence of the appellant basing on the evidence of PW2 and PW4 which were received without conducting voire dire because voire dire is no longer a requirement of the law. In the end, we find this ground of appeal is without merit and we dismiss it. In the second, third, fourth and fifth grounds of appeal, the appellant argued that the prosecution evidence was insufficient of proof beyond reasonable doubt because, one, the appellant was belatedly arrested on 4th November, 2020 as testified by PW6 while the offence took place on 4th October, 2020. Two, there was no evidence to show whether the appellant was living alone in his house, and if so, with whom did PW2 and PW4 play with at the appellant's house and three, both the two lower courts failed to assign reason 9

for rejecting the appellant's defence. In that respect, he prayed that the appeal be allowed and he be set free. On the complaint that the appellant was belatedly arrested, Ms. Mnzava acknowledged the incident took place on 7th October, 2020 and the appellant was arrested on 9th October, 2020. She pointed out that, the first appellate court adequately dealt with this complaint and correctly found that the appellant was not belatedly arrested. Furthermore, the learned State Attorney argued that, according to the evidence on the record of appeal, PW6 participated only in the search conducted on 4th November, 2020 by PW5 but not in arresting the appellant. On our part, we entirely agree with Ms. Mnzava that the record of appeal does not support the appellant's assertion. According to PW6, on 4th November, 2020, he was called by PW5 who was an investigative officer to witness the search in the appellant's house. He said, he was called because he was an assistant of the ten-cell leader in the area where the appellant resided. His evidence was further supported by PW5 who said that, on 4th November, 2020, he visited the scene of crime in company with the appellant, the victim's mother 10

and the victim. Therefore, we find that it is not true PW6 said the appellant was arrested on 4th November, 2020. Besides, as rightly argued by Ms. Mnzava, the incident occurred on 7th October, 2020 and the appellant was arrested on 9th October, 2020 as testified by PW5. The first appellate court meticulously found that the appellant's arrest was not late as there were justifiable reasons for not being arrested on 7th October, 2020. We agree and we find nothing to fault such a finding given that the mother got the information in the late hours of 7th October, 2020 and as testified by DW2 and DW3, the appellant was trying to negotiate settlement with the mother of the victim. In that respect, we are satisfied that this complaint is baseless. On the issue whether the appellant was residing alone or not, in our considered view, Ms. Mnzava rightly submitted that, in his examination in chief, PW2 said the appellant was living alone but the appellant did not challenge such evidence by way of cross examination. We therefore take that the appellant accepted PW5's evidence as a truth. We stated this position of the law in the case of Nyerere Nyague v. The Republic (Criminal Appeal No. 326 of 2021) [2023] TZCA 223 that failure by the appellant to cross examine

a witness on an important matter he is taken to have accepted such fact and is estopped from questioning it. Accordingly, we also find this complaint is without merit. On the failure to give reasons for rejecting the defence evidence, Ms. Mnzava argued that both the trial court and the first appellate court properly analysed the evidence of both sides and gave reasons for not believing the appellant's defence. She referred us at page 65 of the record of appeal where the trial court gave reasons for not believing the appellant's defence that the charge was fabricated by PW1. Having revisited the record of appeal, we observed that the trial court considered both sides evidence but in the end, it was not convinced with the appellant's defence that the charge was fabricated by PW1. It held so after observing that the victim was found with bruises in her private parts by PW1 and PW3 and the appellant tried to settle the matter out of court. For those reasons, the trial court concluded that the appellant's defence failed to shake the strong prosecution case. Nonetheless, we are aware that, in its judgment, the first appellate court did not consider the defence case a task that can be done by this Court.

That apart, since failure by the lower courts to consider defence case is one of the exceptional circumstances where the second appellate Court can step into the shoes of the first appellate court and evaluate evidence on record including that of the defence - see the case of Joseph Leonard Manyota v. The Republic, Criminal Appeal No. 485 of 2015 (unreported). Having revisited the defence of the appellant, we find that it was too weak to cast any doubt on the prosecution case. His own witnesses, DW2 and DW3 supported the prosecution evidence that the appellant was arrested on allegation of grave sexual abuse and attempted to resolve the case out of court. The appellant also had an additional ground of appeal where he complained that he was denied a right to be heard as he claimed that he was not given a chance to ask questions to his witnesses, DW2 and DW3. As submitted by Ms. Mnzava this ground is meritless. We shall explain. DW2 and DW3 were witnesses called by the appellant to support his defence case. Sections 146 and 147 (1) of the EA prescribe the order and directions of examination a witness. For clarity section 146 of the EA provides:

"(1) The examination o f a witness by the party who caiis him is caiied his examination-in- chief. (2) The examination o f a witness by the adverse party is caiied his cross-examination. (3) The examination o f a witness, subsequent to the cross-examination > by the party who caiied him is caiied his re-examination ," Further, section 147 (1) reads: " (1) Witnesses shaii be first examined-in-chief, then (if the adverse party so desires) cross- examined, then (if the party caiiing them so desires) re-examined ." From the above, it is clear that the order of examining the witness starts with the examination-in-chief by the party calling the witness, followed by cross-examination by the opposite party, and finally the witness is re-examined by the party who called him/her. In the appeal before us, we gathered from pages 44 to 48 of the record of appeal that both DW2 and DW3 testified in chief after being led by the appellant. Thereafter, the prosecution cross examined the appellant's witnesses, and lastly, the appellant was given a chance to re-examine his witnesses but said he had none. In 14

that respect, we are satisfied that the appellant was given a right to be heard by the trial court and the first appellate court soundly upheld the conviction and sentence. The additional ground of appeal is, therefore, dismissed. Lastly, Ms. Mnzava addressed us on the issue whether the prosecution proved the charge beyond reasonable doubt. Relying on the authority in the case ofHando Dawido v. The Republic (Criminal Appeal 7 of 2018) [2021] TZCA 719, she contended that for an offence of grave sexual offence, the prosecution is required to prove two things; one, the use of any part of the human body for sexual gratification and two, lack of consent of the other person to whom the act is done. She submitted that PW4, the victim of the sexual offence, proved beyond reasonable doubt that the appellant used his fingers on her genitalia for his sexual gratification, and given her age, the victim did not consent. The learned State Attorney fortified her submission by relying on our decision in the case of Selemani Makumba v. The Republic [2006] T.L.R 379 that, in sexual offences, true evidence comes from a credible victim. It was her submission that the evidence of PW4 was corroborated by her

mother, PW1 who saw bruises on her genitalia and PW3 who examined her and found bruises on her genitalia. On our part, we have duly considered the grounds of appeal and the submission of the parties and we find no reason to alter the concurrent findings of the two courts below. We say so because, the fact that the appellant inserted fingers into PW4's vagina for his sexual gratification without PW4's consent was sufficiently proved by the victim herself, PW4 who named him at the earliest opportunity, to her mother, PW1. At this point, we wish to reiterate that the true evidence of rape comes from the victim - see the case of Selemani Makumba v. The Republic (supra). Furthermore, PW4's evidence was corroborated by PW1 who found bruises on the victim's genital parts and PW3 who observed that she was sexually abused. Besides, as rightly argued by Ms. Mnzava, the defence supported the prosecution's case. It is on record that DW2 and DW3 tried to assist the appellant to settle the matter out of court with the mother of the victim without any success since she requested for payment of TZS. 5,000,000.00 which they did not have. With such overwhelming evidence on the record of appeal, we, like the two

lower courts, find that the prosecution proved its case beyond reasonable doubt against the appellant. All the above considered, we are satisfied that the case for the prosecution against the appellant was proved beyond reasonable doubt. The appeal is therefore dismissed. DATED at DODOMA this 8th day of September, 2025. The Judgment delivered this 10th day of September, 2025 in the presence of the Appellant in person unrepresented and Ms. Elizabeth Olomi, learned Senior State Attorney for the Respondent/Republic via virtual Court and Julius Kilimba, Court Clerk; is hereby certified as a true copy of the original. B. M. A. SEHEL JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL