Emmanuel Said vs Republic (Criminal Appeal No. 389 of 2023) [2025] TZCA 844 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MKUYE. 3.A.. MDEMU. 3.A. And. ISSA. J.A.^ CRIMINAL APPEAL NO. 389 OF 2023 EMMANUEL SAID .................................................................... APPELLANT VERSUS THE REPUBLIC....................................................................RESPONDENT (Appeal from the decision of the Resident Magistrates Court of Arusha at Arusha) fTemu, SRM - Ext. Juris.') dated the 9th day of March, 2020 in Criminal Appeal No. 100 of 2019 JUDGMENT OF THE COURT 23rd July. & 7th August, 2025 MKUYE. 3.A.: The appellant, Emmanuel Said was arraigned before the Resident Magistrate's Court of Arusha at Arusha for the charge of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap 16 R. E. 2002. The particulars of offence were that, the appellant, on 21/2/2018 at Shangarai area within Arumeru District in the Region of Arusha did have carnal knowledge of the victim (name withheld to protect his identity), a boy aged three years against the order of nature. i

When the charge was read over to him he pleaded not guilty whereupon the prosecution paraded four witnesses and produced one exhibit. On the other hand, the appellant fended himself. The brief facts of the case are as follows:- The appellant was a labourer employed by certain Babu Mose who resided in Shangarai village within Arumeru District in Arusha Region. It would appear that the appellant established ties with children around his neighbourhood and he used to provide them with sweets. On the material date evening 12/3/2018, at around 07:00 p.m. he was allegedly seen with the victim while buying sweets for him. Thereafter the two went missing as were nowhere to be found.Search was conducted in the neighbourhood by the victim's parents and relatives, however, the victim was not found. At around 08:00 p.m., the victim resurfaced walking from the back of one of the neighbour's house but was observed walking with difficulty and tired. He was also found with dust and mud on his clothes. When his parents picked him, he complained of pains. Upon inspecting him they saw bruises around his neck and further inspection revealed blood and feaces coming out from his anus. On being questioned what had

happened, the victim claimed that he was strangled by his uncle "mjomba ameninyonga." The matter was reported to the police station where a PF3 was issued for the victim to be taken to the Arumeru District Hospital for medical examination. Upon examination carried out by PW3, it was revealed that the victim's anus was penetrated by a blunt object. The appellant was traced and on the same night was arrested. He was taken to the police station and later to the court. In his defence, the appellant distanced himself from the offence claiming that he was falsely incriminated. After the conclusion of the trial, the trial court found that the circumstantial evidence based on the doctrine of last person to be seen with the victim was strong enough to mount the appellant's conviction. Thus, he was found guilty, convicted and sentenced to life imprisonment. His appeal to the High Court was not successful as it was dismissed by A. M. Temu SRM with Extended Jurisdiction for lack of merit. Still protesting his innocence, the appellant has appealed to this Court fronting seven (7) grounds of appeal in the substantive memorandum of appeal and four (4) grounds in the supplementary

memorandum of appeal. Essentially, in the substantive memorandum of appeal, the appellant's main complaints are based on: the prosecution's failure to call the victim to testify in court (ground no. 1 and 3); the variance between the charge and evidence as PW1, PW3 and PW4 testified that the victim was strangled while the charge depicts sodomy; and that the case was not proved as the prosecution evidence was marred with contradictions, and the insufficient identification evidence (grounds 4, 5, 6 and 7 of the appeal). In the supplementary memorandum of appeal, the appellant's areas of grievances are: one, the delay in arraignment of the appellant in court in contravention of section 33 (1) of the Criminal Procedure Act, Cap 20, R.E. 2023 (the CPA) having been taken to court 24 days after being arrested by the police - see: Director of Public Prosecutions v. Focus Malindi, [2025] TZCA 305. Two, non-compliance with section 173 (2) (c) of the CPA as the sentence awarded to the appellant was not confirmed by the High Court; and three, the PF3 admitted in court was not read over in court. When the appeal was called on for hearing, the appellant appeared in person without any legal representation whereas the

respondent Republic was represented by Mses. Naomi Mollel, Eunice Makala and Blandina Msawa, all learned Senior State Attorneys. Before hearing could commence in earnest, the appellant prayed to adopt his grounds of appeal, list of authorities and written arguments to form part of his oral submission. Having done so, he implored us to let the learned State Attorneys respond first and reserved his right to rejoin later, if need would arise. On her part, Ms. Mollel in the first place declared their stance that they were supporting both the conviction and sentence meted out against the appellant. However, in the course of her submission she conceded to some grounds of appeal which in our view suffice to dispose of the appeal of which will be the basis of our determination. In relation to the appellant's complaint that the prosecution failed to bring the victim to testify in court (grounds nos. 1 and 3 of the memorandum of appeal). It was her argument that, it was the duty of the court to determine if the victim was capable or incapable to testify in court and not anybody else. Ms. Mollel conceded that, indeed, the victim was not called to testify in court. But she was quick to state that, much as the victim may not have been brought to testify, there are circumstances where the offence can be proved without the victim 5

testifying under section 127 (1) now 135 (1) of the Evidence Act, Cap 6 R. E. 2023 (the Evidence Act) which exempts among witnesses, the children of tender age, imbeciles etc. to testify in court. She said, the father of the child (PW2) said the victim was three years and seven months old meaning that he ought to have been brought under section 135 (5) of the Evidence Act. However, she was of the view that, even if the victim was not brought, it cannot vitiate or dent the available evidence. In order to support her argument, she referred us to the case of Hussein Abrahaman Kindamba v. Republic, [2024] TZCA 1227 TANZLII. At any rate, she argued that there were other witnesses who testified in that regard. When asked if the trial court made an order for not calling him as per the dictates of the law, the learned Senior State Attorney conceded that the court did not make such an order. She contended that, even if he was not called, the court relied on circumstantial evidence based on the doctrine of a last person to be seen with the victim to convict the appellant. As such, she urged the Court to find that grounds nos. 1 and 3 are not merited and dismiss them. In the first place we wish to reiterate our settled position of the law that under section 152 of the Evidence Act there is no particular 6

number of witnesses who are required to prove a fact in issue. We have said now and then that it is not the number of witnesses which matters but the reliability and credibility of witnesses called to testify - (See: Mgonja Chambila @ Rock v. Republic, [2005] TZCA 298. Equally, it is settled that failure to call a material witnesses to testify or explain an important issue, entitles the Court to draw adverse inference. See: Kisinza Richard v. Republic, [1989] T.L.R. 143; Juma Bakari @ Nyumbe v. Republic, [2025 TZCA 531; and Fredric Fildelis v. Republic, [2025] TZCA 224 (both TANZLII). It is true that the victim was aged three years when the offence was committed as shown in the charge sheet. At the time PW2 testified in court, he was three years and seven months and therefore he was a child of tender age as per the dictates of section 135 (1) of the Evidence Act. According to the above cited provision every person is competent to testify in court unless he is considered by the court to be incapable of understanding the questions put to him or giving rational answers to the questions put to him for the reason of tender age, old age or disease whether of body or mind. It presupposes that the court would make a finding to that effect.

In this case, according to the record the child (victim) was not called at all. There was no order of the court exempting him from giving evidence for the reason that he was incapable of understanding questions put to him or giving rational answers by reason of tender age. As it is, it appears, it was the prosecution which decided not to call him as a witness. On the other hand, we note that the victim was a person who could talk. This is shown when asked by his father what happened to him he said "mjomba ameninyonga", It means that, had the court inquired his ability to testify in court, perhaps he could have done so. In our view, failure to do so prejudiced the appellant because had the victim testified, the appellant could have been afforded a chance of cross-examining him. As there is no reason advanced in court for failure to call him to testify, we draw adverse inference against the prosecution that perhaps the victim could have given evidence against them. We find merit in this ground and we allow it. Regarding grounds 4, 5, 6 and 7 which hinge on the proof of the case against the appellant, it was Ms. Mollers argument that in offences of this nature three elements were required to be proved which are: 8

one, age of the victim; two, penetration on the anus of the victim; and three, that the appellant committed the offence. In relation to the age, she contended that, it was proved by his father (PW2) that the victim's age was three years and seven months meaning that he was below eighteen years. His evidence was corroborated by PW1. As to the issue of penetration, she argued that PW2, PW3 and PW1 proved it as PW2 and PW3 saw the victim discharging feaces and blood from the anus and PW1, the Doctor, who examined him confirmed that he was penetrated by a blunt object. We do not have qualms with the proof of age and penetration as the evidence available discharged this duty. As was rightly submitted by Ms. Mollel the age of the victim was amply proved by the victim's father (PW2) and corroborated by PW1 who were among persons eligible to prove age. See: Issaya Renatus v. Republic, [2016] TZCA 218; Innocent Mataba v. Republic, [2025] TZCA 431; and Haruna Mtasiwa v. Republic, [2020] TZCA 230 all TANZLII. In this cases, PW2 proved that the victim was aged three years and seven months. The proof of age, particularly in offences of this nature, is very crucial as it

affects the determination of sentence to be imposed to the appellant. In this regard, the victim was below the age of eighteen years. Regarding the issue of penetration, we agree with Ms. Mollel that there was ample evidence to that effect. PW2 and PW3 after having found the missing child noted that he complained to have pains after being picked by them. On examining him they saw bruises on his neck and on further examination they noted that he was penetrated on his anus and was discharging blood and feaces. The evidence relating to penetration was corroborated by PW1 who examined him and observed that he was penetrated by a blunt object. As to who committed the offence, Ms. Mollel argued that there was circumstantial evidence which was agreed by both courts below that, it was the appellant who did so. Elaborating, the learned Senior State Attorney contended that PW3 testified to have seen the appellant whom she knew leaving with the victim at about 07:00 p.m. The same witness said, at about 08:00 p.m., she saw the victim coming back home with dust and mud in his clothes. Upon inspecting him she observed that he was penetrated and on being asked what happened he said he was strangled by his uncle "Mjomba Emma Ameninyonga".

But again, she added, the evidence of PW2 was corroborated by PW1 who observed bruises on his anus suggesting that he was penetrated by a blunt object. PW1, PW2 and PW3 were credible and reliable witnesses and that the circumstances irresistibly proved that the appellant committed the offence. As to how PW3 identified the appellant, she said there was installation of electricity at the bar where the appellant used to drink beer. On being prompted further by the Court why the victim's sister one Catherine , Babu Moses and the shop attendant were not called to testify in court, particularly so, because Catherine was playing with the victim and told PW2 that he was playing nearby; Babu Moses was allegedly an employer of the appellant and therefore could prove that appellant was his employee; and the shop attendant where it was said the appellant went with the victim to buy sweets, could explain on how the appellant and the victim went to his shop, the learned Senior State Attorney conceded that they were material witnesses but she was of the view that, even if they were not called, the prosecution evidence was not shaken. Indeed, in convicting the appellant the courts below relied on circumstantial evidence based on the doctrine that the appellant was the

last person to be seen with the victim and therefore he must be the one who sodomized him. We are aware that if the doctrine is properly involved, it can be the basis for convicting the accused even for killing someone as we stated in the case of Mathayo Mwalim and Another v. Republic, [2009] TZCA 53 TANZLII that:- "... if an accused person is alleged to have been the last person to be seen with the deceased, in the absence o f any plausible explanation to explain away the circumstances leading to the death > he or she will be presumed to be the killer." However, it is noteworthy that, in most cases such evidence needs to be corroborated with other evidence. See: Rajabu Jurna @ Kajabala v. Republic [2025] TZCA 420 TANZLII. In this case, PW3 was the key witness whose evidence was relied upon. PW3's testimony was to the effect that she saw when the appellant together with the victim at about 07:00 p.m. buying some sweets and left. As it was at 07:00 p.m. (night) PW3 said she observed well the appellant because the bar the appellant used to drink beer, was installed with electricity. She also testified to have seen when the victim 12

came back with dust and mud and on inspecting him, she observed that he was molested. The question we ask ourselves is whether the circumstantial evidence based on the doctrine of last person to be seen with the victim linked the appellant with the offence. In our view, it did not. We shall endeavour to explain. Although PW3 testified to have identified the appellant as the bar where the appellant used to drink beer was installed with electricity, she did not neither explain if it was on at that particular time nor explain the intensity of light which enabled her to identify the appellant. Apart from that, she did not explain the distance between her and the appellant nor describe the attire he wore on the material date. Besides that, no description relating to the shop where they went to buy sweets was given. Due to such discrepancies, we find that, it cannot be said that the appellant was properly identified. That apart, on his part, PW2, the victim's father testified, on among others, to have been informed by his young sister, Kabii, that she had seen the victim together with the appellant who bought biscuits and sweets for him and went away. However, we are not told if the said

Kabii was the same person as PW3 who testified to that effect as there is no where such explanation was offered either by PW2 or PW3. Also, according to PW2, when he was looking for the victim, he asked his daughter Catherine, who was also the victim's sister, and she told him that he was playing nearby. What makes us wonder is why the said Catherine who seemed to have been playing with or close to the victim was not called to ascertain how and with whom the victim left with. We think, this person was a crucial witness who could have unveiled something relating to the manner the appellant and the victim left from where the victim was playing. Moreover, there was a shopkeeper who, according to PW3, the appellant had gone to buy sweets while with the victim. We think, this person was also a material witness as he would have testified in court on how and with whom the appellant was with at the time he went to purchase sweets before he left with him. Even Babu Mose whom PW3 mentioned to be the employer of the appellant whom the appellant also mentioned him with different names (Martine @ Babu) would have unveiled on how he knew the appellant and if he was, indeed, his employer so as to link with PW3's evidence trying to describe the appellant.

Failure to call such material witnesses to testify in court has a negative effect in the prosecution evidence and it entitles the Court to draw adverse inference against the prosecution. When faced with similar scenario in the case of Boniface Kundakira Tarimo v. Republic, [2011] TZCA 194 TANZALII, the Court held that:- "It is thus now settled that, where a witness who is in better position to explain some missing links in the party's case, is not called without sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only permissible ." (See also: Masatu Webiro Mkirya @ Nyamtenga Kilongoti v. Republic, [2022] TZCA 284; Pascal Yoya @ Mganga v. Republic [2021] TZCA 36; and Samwel Nyerere v. Republic, [2023] TZCA 27 (all TANZLII). It is our considered view that, had these witnesses called to testify they would have corroborated the evidence of PW3 who said she saw the appellant with the victim. In this regard, failure to call such crucial witnesses entitles us to draw adverse inference that perhaps they would have testified against the prosecution. This, in our view, vitiated the prosecution evidence. 15

We find merit in grounds 4, 5, 6 and 7 and we allow them. In ground no. 1 of the supplementary memorandum of appeal, the appellant's complaint relates to the delay in arraigning the appellant before the court. Ms. Mollel conceded that it was true as the appellant was arrested on 2/3/2018 as per PW2's evidence and his own evidence but he was arraigned before the court on 26/3/2018 which was a delay of 24 days. While referring to the case of Eliapenda Zephania Zakaria @ Kicheche v. Republic, [2024] TZCA 728 TANZLII, Ms. Mollel was of a view that despite the infraction, it did not vitiated the trial. We are alive that under section 33 (1) of the CPA, the accused person is required to be arraigned before the court within twenty four hours from when he was arrested. We agree with Ms. Mollel that in this case the appellant was delayed to be taken to court after his arrest. Much as he was arrested on 2/3/2018 he was taken to court on 26/3/2018 which was a delay of 24 days and there was no explanation for such delay. Apart from that, there was no evidence showing that he was granted bail. Ms. Mollel tried to convince us to find that such a delay did not vitiate the trial and hence, his conviction and sentence. We understand 16

that this was the position taken in the case of Eliapenda Zephania Zakaria @ Kicheche (supra) where the appellant was delayed to be arraigned in court for about 31 days from 29/1/2019 to 1/3/2018 but in the end, the Court found that it did not vitiate the trial and the resultant conviction. However, in the recently decided case of Director of Public Prosecutions v. Focus Malindi [2025] TZCA 305 TANZLII which has also been cited by the appellant, the Court took a different stance on the same issue of delay in arraigning the accused to the court after considering the former position. The Court raised the issue whether such situation augured well with the notion of fair trial and whether the respondent was not prejudiced by such an action. In the end, it found that such delay was a breach of the law which was against the notion of fair trial. The Court further found that it was a clear contravention of section 33 of the CPA requiring prompt arraignment of the suspect to the court and thus prejudiced him much as it created doubts in the prosecution case. The Court referred to the case of David Zabron @ Lusumo v. Republic, 2020 [2020] TZCA 241 TANZLII where it was stated 17

"The unexplainable delay which is featured in the charge sheet has some connection with the appellant's defence story.... As alluded to above, the charge sheet shows that the appellant was charged after a lapse of approximately nine (9) months from the date when the alleged offence was committed. There is no justifiable explanation o f the said delay on record considering the fact that he was arrested on the fateful date. "[Emphasis added]. In the end, the Court concluded that:- "... failure to arraign the suspect under arrest even for a day needs to be accounted for since section 32 (1) of the CPA demands there be a prompt arraignment. We hold therefore, that the delayed arraignment o f the respondent was prejudicial to him and since such delay was not cushioned with reasonable explanationy the same ... affected the prosecution's case. "[Emphasis added]. Even in this case, that is the position we take since there was no explanation offered by the prosecution as to why there was such a delay in taking the appellant to the court for about 24 days from when he was kept under custody. We therefore hold that the delay in arraignment of 18

the appellant did prejudice him and as there was no explanation to it, it definitely had a negative effect in the prosecution's case. In consequence, as alluded to hereinabove, we find that the proof that the appellant is the one who committed the offence remained wanting because the circumstantial evidence as testified by PW3 was not sufficient. Having so found, we think that, when the evidence of PW3 which is found to be wanting is taken together with other factors such as, failure to bring the victim and other material witnesses to testify in court and the fact that the appellant was delayed in arraignment in court we find that, it raises doubts as to the existence of the case as was held in the case of Ramson Peter Ondile v. Republic [2021] TZCA 84 TANZLII. With these doubts, it has been held by this Court in times without number that every doubt arising out of the prosecution evidence has to benefit the accused. As such we think, the issues we have raised, establish doubts in the prosecution case and we resolve them in favour of the appellant. Consequently, we find that the prosecution failed to prove the case against the appellant beyond reasonable doubt and, therefore, we find the appeal is merited and we allow it.

That said and done, we quash the proceedings and resultant judgments of the two courts below, set aside the sentence and order that the appellant be released from prison unless held for other lawful reasons. It is so ordered. DATED at ARUSHA this 6th day of August, 2025. R. K. MKUYE JUSTICE OF APPEAL G. 1 MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 7th day of August, 2025 in the presence of the Appellant in person and Mr. Philbert Msuya, learned State Attorney for the Respondent/Republic both through Virtual Court, is hereby certified as a true copy of the original. 20