Mussa Mohamed Kitwaa vs Republic (Criminal Appeal No. 219 of 2022) [2024] TZCA 1207 (6 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: LILA. J.A.. MURUKE. J.A. And MDEMU. 3.A.1 CRIMINAL APPEAL NO. 219 OF 2022 MUSSA MOHAMED KTTWAA......................................................APPELLANT VERSUS THE REPUBLIC ..................................................................... RESPONDENT (Appeal from the judgment of the Resident Magistrate's Court of Dodoma, at Dodoma) rDudu. PRM, EXT-JUR dated the 28th day of April, 2022 in Criminal Appeal No. 36 of 2021 JUDGMENT OF THE COURT 29th November & . 6th December, 2024 MDEMU, J.A.: In the District Court of Kondoa, the appellant was arraigned for the offence of grave sexual abuse contrary to section 138C (1) (a) and (2) (b) of the Penal Code, Cap. 16. As stated in the particulars of the offence, the appellant, for sexual gratification, and by using his penis, scrubbed into the genital parts of "NIT, a girl of seven years, whose name is disguised for identity purposes. We will therefore make reference to her as PW2 or the victim. It is alleged further in the particulars of the offence that, the appellant gratified himself sexually to the victim on 2n d June,

2020 at Gundali area located in Kondoa District. That notwithstanding, the appellant denied his involvement in those accusations. The background of the case as was in the trial court is briefly stated as follows: In the afternoon of 2n d June, 2020, Jamila Juma Mohamed (PW1) instructed her daughter, the victim, to send her pair of shoes to the appellant for repair. She obeyed and took the said shoes as instructed to the appellant's premises. The latter was alone at his residence. However, the record is silent if the appellant repaired those shoes, but instead, PW2 stated that, the appellant offered her an orange and a biscuit and then lifted up her dresses, unzipped his trousers and finally, scrubbed his manhood in PW2's vagina. The appellant or Babu Mussa, as described by the victim, had such sexual gratification while the victim was lying down. The victim then left for home holding the offered orange and biscuit while crying. At home, the victim's mother (PW1) interrogated her as to what happened. She readily explained the ordeal and named the appellant to be responsible. PW1 also inspected the victim's shorts and detected substances like mucus. Given such sequence of events, the matter was reported by PW1 to the ten-cell leader one Mohamed Abdallah Sungata (PW3). Thereafter, the trio, that is, PW1, PW2 and PW3 went straight to

the residence of the appellant. It seems, while at the appellants premises, the matter alerted a crowd. In a rescue thereof from the angry crowd, PW3 took the appellant to his residence. On the other hand, PW1 went to report the matter at Kondoa Police Station. The police detectives issued a PF3 to the victim and was then taken to hospital by PW1 for medical examination. Meanwhile, the police detectives; G. 8090 Detective Constable Deogratius (PW4) and Corporal Saburi, went to PW3 where they arrested the appellant. The latter was interrogated at the police station and according to PW4, he confessed in his cautioned statement, which was tendered as exhibit PI, to have had sexually gratified himself as stated in the charge. The appellant denied the charges at his arraignment in the trial court on 16th June, 2020 and later in his defence during trial on 17th August, 2020. He testified as DW1 that, the victim approached him for shoes7repair. However, his evidence is silent if he repaired the said shoes. He was also silent as to what happened to PW2, probably because he was not even cross examined by the prosecution. In the end of it all, the trial court found the prosecution case proven. The appellant was accordingly convicted and sentenced to serve a prison term of twenty (20) years. He was not happy with the trial court's findings. His first appeal which was

heard by Dudu, Principal Resident Magistrate exercising extended jurisdiction in the Resident Magistrate's Court of Dodoma was as well not successful. The appellant is now before us in a second appeal. He had lodged a memorandum of appeal on 9th October, 2022 comprising of five grounds which mainly hinge on one complaint, that is, basing the conviction on unproven prosecution case because, one, the age of the victim was not proved, two, the evidence of PW2, a child of tender age was illegally procured and three, failure to call in evidence the doctor who, clinically, examined the victim. Before the appeal was! heard, the appellant prayed leave of the Court to argue other five supplementary grounds of appeal. The major points of contention in all the five grounds rest on: one, noncompliance of sections 9(3) and 10 (3) of the Criminal Procedure Act, Cap. 20 (the CPA). Two, exhibit PI, the appellant's cautioned statement, was illegally admitted in evidence, three, Memorandum of agreed facts during preliminary hearing were not read out to the appellant. Four, the unexplained delay in the arraignment of the appellant and five, age of the victim was not proved. We heard the appellant unrepresented on 29th November, 2024. The respondent/Republic on that day had the services of Ms. Ester Kyara

and Ms. Patricia Mkina both learned Senior State Attorneys and Ms. Bertha Kulwa, learned State Attorney. They opposed the appeal. In support of the appeal, the appellant simply asked us to release him for no offence in law was committed by him. In resisting the appeal, Ms. Bertha Kulwa commenced to make submission regarding complaint of the appellant for not calling the medical practitioner who made clinical examination to the victim. She conceded that, the record of appeal is silent on that aspect but she argued that as the conviction was based on the evidence of the victim, failure to call in evidence a person who made such clinical examination is not fatal because, in terms of section 143 of the Evidence Act, cap. 6, no specific number of witnesses are required to prove a particular fact. She thus cited to us the case of Alex Ndedya v. Republic (Criminal Appeal No. 340 of 2017) [2020] TZCA 201 (6 May 2020; TanzlJI). Ms. Kulwa added that, the ingredients of the offence under section 138C (1) (a) and (2) (b) of the Penal Code was proved to exist because PW2 at page 16 of the* record of appeal explained how the appellant undressed her, undressed himself and finally, used his manhood to scrub at the upper part of the victim's vagina. It was in her submission further that, the appellant induced the victim by offering her an orange and

biscuits. That besides, her argument stresses further that, consent is immaterial in the offence of grave sexual abuse involving a child of tender age. As to the age of the victim giving raise to the complaint of the appellant regarding violation of section 127 (2) of the Evidence Act, Ms. Kulwa conceded that, much as in the evidence on record PW2 Is referred to be of 7 and 8 years of age interchangeably, that age difference do not make her to be above eighteen (18) years of age. She added further that, the appellant also admitted in his cautioned statement that, the victim was under age. Submitting on the procedure towards recording the evidence of a witness of tender age, the learned State Attorney referred us to page 14 through 16 of the record of appeal arguing that, PW2 promised to tell, the truth and not to tell lies before her evidence was received. Regarding the cautioned statement of the appellant (exhibit PI), Ms. Kyara was her turn to submit and readily urged us to expunge the said statement on account that; one, it violated section 57 of the CPA and two, that, its contents was stated in the trial court by PW4 before it was cleared for admission and in fact, admitted as an exhibit.

Replying further to the complained anomalies that the memorandum of facts agreed during the preliminary hearing were not read out to the parties, Ms. Kyara argued that, it is difficult to appreciate in the record of appeal any drawn memorandum of agreed facts, let alone want of an indication on the reading out of such memorandum. She however stated that, the appellant was not prejudiced because he had ample time to cross examine the prosecution witnesses and also had an opportunity to make his defence. As to the unexplained delayed arraignment of the appellant, Ms. Kyara gave us the benefit in the record of appeal that, the appellant was arrested on 2n dJune, 2020 and his first arraignment in the trial court was on 16th June, 2020. She however conceded that, the record is silent as to what happened to the appellant in his post arrest and the pre arraignment periods. That besides, he urged us to disregard such assertions because the appellant has failed to explain how he was prejudiced by that delayed arraignment. The turn came for Ms. Patricial Mkina to'submit. Hers was a reply to the appellant's complaint that the appellant was not supplied with the statement of a person giving the information in terms of section 9 (3) and any statement recorded under section 10 (3) both of the CPA, Ms. Mkina

was of the argument that, the appellant was not prejudiced because he cross-examined the prosecution witnesses. When probed further, her argument was that, the omission was prejudicial to the appellant and resulted into an unfair trial on the part of the appellant. The team of the learned State Attorneys were however hesitant to consider any other undertaking save for what they initially submitted to us that, the appeal has no merit and urged us to dismiss it. On his part, the appellant came briefly in a rejoinder reiterating that, the appeal before us is meritorious and did not hesitate to urge its being allowed. We have considered the grounds of complaint, submission by the parties and the entire record of appeal. We find it apposite to begin with the complaint of the appellant regarding contradiction in the age of the victim and non-observance of section 27 (2) of the Evidence Act. Without ado, we are in agreement with the learned State Attorney that, the alleged contradiction regarding the age of the victim is not material. The age of the victim, be it seven years as stated in the charge and testified by the victim or seven years and six months stated by PW1, would not make the age of PW2 to be above eighteen years old. We are therefore of the firm view that PW2 is a person of tender age within the meaning .of section 127 (1) and (4) of the Evidence Act. Next before us is whether the

procedure to receive her evidence was followed. Section 127 (2) of the Evidence Act provides as follows regarding the procedure to follow in recording the evidence of witnesses of tender age. It is that: "127 (2) A child o f tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth to the court and not to tell any lies." It is clear in subsection (2) of section 127 of the Evidence Act, just quoted above that, a child of tender age is permitted to give evidence without oath or affirmation provided a prior promise to tell the truth and not to tell any lie is- made by the said child to the court receiving that evidence. The Court, in numerous occasions, pronounced itself regarding that settled principle. See, for instance, John Ngonda v. The Republic (Criminal Appeal No. 45 of 2020) [2023] TZCA 13 (15 February 2023; TanzLII) and Emmanuel Muziuka ©Emmanuel Kalambwanda v. Republic (Criminal Appeal No.105 of 2022) [2024] TZCA 1147 (26 November 2024; TanzLII) The record of appeal in that regard before us at page 15 provides that:

7 do not understand the nature o f the oath, I promise to tell the fruth and not to tell lies before the court. Court findings: PW2; NASMA HABIBU, promised before this court, she will tell the truth and not to tell lies, although she does not understand the nature o f oath. I' found her competent witness and I will fake her evidence withoutmaking an affirmation ." Our understanding of the above extract in the record of the trial court is in threefold; one, that the learned Resident Magistrate administered a few. questions to PW2 to satisfy herself if she understood the nature of oath. Two, following that methodology, it'came to her opinion that PW2 did not understand the meaning and nature of oath. Three, that PW2 made a prior promise to tell the truth and not to tell any lie before she testified. Given such state of affairs, we are firmly of the view that, section 12,7 (2) of the Evidence Act was duly complied. We dismiss this ground of complaint for that reason forthwith. . We now turn to the ground of complaint that it was wrong for both the trial court and the first appellate court to ground conviction on unproven prosecution case. Before we reach at this point, we underline and note that on the fateful day, PW2 went to the appellant for repair of her mothers7pair of shoes. Parties part ways as to what followed during

and post repair of the pair of shoes. As we demonstrated when restating the prosecution case, the respondents' position is that, the appellant had sexual gratification by scrubbing his penis in the upper part of the victim's vagina. The appellant, we said, denied to have gratified himself sexually in the manner stated in the prosecution case. At this point, it serves relevancy to note that, the offence of grave sexual abuse is legislated under the provisions of section 138C (1) of the Penal Code in the following phraseology: "138C(1) Anyperson who, for sexualgratification, does any act, by the use o fhis genital or any other part o f the human body or any instrument or any orifice orpart o fthe body o fanotherperson, being an act which does not amount to rape under section 130, commits the offence o fgrave sexual abuse if he does so in circumstances falling under any o f the following descriptions, that is to say- (a) without the consent of the otherperson; (b) with the consento fthe otherperson where the consent has been obtained by the use o f force, threat, or intimidation orputting that otherperson in fear o f death or of hurt or while that other person . was in unlawful detention;

(c) with the consent o f the other person where such consent has been obtained at a time the other person was o f unsound mind or was in a state o f intoxication induced by alcohol or any drugs/ matter or thing." This Court in Emmanuel Muziuka ©Emmanuel Kalambwanda v * Republic (supra), just one to mention, having quoted section 138C (1) of the Penal Code, as we did, stated that: "In the above section,, in sexual offences, an act constitutes the offence o f grave sexual abuse where: one, the act is for sexual gratification. Two, the act does not amount to rape. Three, it Involves the use o fgenital or any otherpart o f the human body,or any instrument or any orifice or part o f the body o fanotherperson. Four, without the consent o f the other person. Five, where consent is a result o f die use o f force, threat, intimidation, fear o f death or o f hurt or unlawful detention. Six, where consent is obtairied when the otherperson is o funsoundmind or is in a state o f intoxication induced by alcohol; drugs etc. As it is, it is not stated if the said act should result into bruises. We dismiss this complaint as well." We said above that, the appellant's complaint is on failure by the prosecution to call a person who did medical examination to the victim.

He did not say specifically the essence'of having that evidence in sexual offences relating to grave sexual abuse. Ms. Bertha Kulwa argued, which we are in agreement with her that, section 143 of the Evidence Act does not require a particular number of witnesses for proof of a particular fact. We add that, depending on the nature of the fact to be proved, and the materiality of the, evidence, coherence and credence inclusive, one witness may suffice the purpose. Thjs one is settled. ,. As we demonstrated above, the appellant was not very particular. But both courts below banked on the evidence of PW2, the victim to hold the appellant criminally liable. We will come to this later. That notwithstanding, the uncalled evidence of the medical practitioner was therefore not the basis within which the two courts below based their findings. Yet, as we said in Emmanuel Muziuka ©Emmanuel Kalambwanda v. Republic (supra), the nature of the offence as coached in section 138G (1) of the Penal Code is proven even in absence of any medical report of a person who made clinical examination. We dismiss this ground of complaint as well. Reverting to .what we reserved on the evidence Of PW2, we think that evidence have to be considered together with other evidence on the record. We are saying so because, PW2 is the only eye witness and that,

the other witnesses' testimony depended wholly on the information supplied by PW2. Our close scrutiny in the record of appeal revealed the following contradictions and discrepancies in the prosecution case, particularly in the evidence of PW1, PW2 and PW3: One, PW2 testified to have no underwear when the appellant did the ordeal to her. This evidence differs materially with PW1 who examined the victim and found her pair of shorts with substances like mucus. The record of appeal in this regard speaks at page 10 in the evidence of PW1 that: "I told her young to give me those clothes. I put the clothes in the water, in theprocess o f washing her smallshort, I found the said short with things like mucus." On her part, the victim testified at page 16 of the record of appeal that: 7 agreed with his offer, he pulled up my dress, as I was not wearing underwear, he opened his trouser zipper and take out his penis on my vagina." Two, what is gathered in the above extracts, is the variance between PW1 and PW2 regarding the magnitude of the said sexual abuse,

if any. Looking critically the evidence of PW2, during the scrubbing of the penis in her vagina, nothing was released from the appellant's penis. This however to PW1 seem to suggest emissions of some substances like mucus from the appellant's penis. We think here is when the evidence of a person who made clinical examination becomes relevant. We are constrained to. draw adverse inference to the prosecution case for failure to call that witness.; Three, it is in the record of appeal that, both PW1 and PW2 reported the incident to PW3. Surprisingly, it appears to us that PW3 had prior information of who did the ordeal to PW2. It is however not apparent on record where PW3 got such information and from which source. The record of appeal at page 18 through 19 is a revelation of these discrepancies as hereunder: "On 2/6/2020 at about 14:00 hrs. in the afternoon,; I was at my home. Jamila and Nasma Habibu came at my home. They knockedmy door. I responded to them, Jamila told me, she had a problem;andshe toldme her child (Nasma Habibu) has been raped\ I asked Nasma Habibu if she was really raped, she didn't respond, on the hand, she washaving an orange.

I asked her on , the second time if she can take me to thatgrandfather, Babu Mussa..." [emphasis is ours] Four, as it is, it is not apparent on record if the victim was issued with a PF3, taken to hospital and which hospital in particular did examine her. This evidence, in the circumstances of this case, we said above, was relevant to corroborate the story, made by PW2. We have that stance because what.PWl stated differs materially with the position of PW2. Given the foregoing analysis, we are unable therefore to fault the appellant that the prosecution case had some discrepancies which, to the appellant's understanding, is an indication that the ca$e was a fabricated one. This was the reason he alleged in the supplementary grounds of appeal that, section 10 (3) and 9 (3) of the CPA was riot complied. It is not clear what he exactly meant by that averment, but. looking closely to the supplementary ground of complaint he raised, it .seems to us he was uncertain if any statement was ever recorded, ,qr there was any meaningful investigation. Let the said additional ground of complaint t *' 1 :t ~ W speak by itself as follows: "Kwamba, Mahakama ya kwanza ya rufaa Uikosea kisheria na ukweli kwa kushindwa kubaini kuwa mahakama ya awali Hikiuka Kifungu K/Fcha Sheria cha 10(3) na 9 (3) k vote vya

sheria ya Mwenerido wa Makosa ya Jinai- Hivyo kupelekea upande w a, mashtaka kuvamia Mahakama na ku/eta mashahidipasipo mpangilio na hatimaye kutengeneza kesi ambayo ilishasikihzwa Mahakamani" [Emphasis ours] We think, a great caution should have been taken by the trial court and the first appellate court in trusting the evidence, of PW 2> The two courts below, as we demonstrated above, made that trust. We are aware of the legal principle developed by the Court that, the concurrent findings of facts by two courts below should not be disturbed unless there are misdirection or non-directions. See, for instance/ ,in Ally Manono v. Republic (Criminal Appeal No. 242 of.2007) [2010] TZCA22 (26 February 2010 TanzLII) and in Harban Haji Mosi and Another v. Omari Hilal Seif and Another [2001] T.L.R. 409. In the instant appeal, we are constrained to interfere with the concurrent findings ofTacts because both courts below'misapprehended and did not realize that the evidence of PW1 and PW2 had discrepancies regarding the underwear and presence of mucus,in that underwear. Yet, as we observed above, PW1 and PW2 were the first to inform PW3 on the incidence, but PW3 already had prior information of the incident as we explained, above. With think also, in the circumstances of this case, both

courts below should not have ignored the evidence on how the victim was taken to the police station for a PF3 and if at all she was taken to hospital and which hospital in particular made clinical examination and by who. We are aware that contradictions by a witness or between witnesses in a particular case are normal and cannot be avoided. See Director of Public Prosecutions v. Daniel Wasonga (Criminal Appeal No. 64 of 2018) [2022] TZCA 418 12 July 2022 TanzLII). That notwithstanding, the foregoing noted discrepancies are not minor. They are so conspicuous and prevalent and as stated in. Mohamed Said Matula v. Republic [1995] T.L.R. 3, the trial court was duty bound to. retrieve, resolve and decide the extent to which such contradictions have in the prosecution case. As it was not done in the instant case, definitely, they create doubts which, as stated in Nassoro Mwalami Kuga v. Republic, (Criminal Appeal No.411 of 2022) TZCA 412 (7 June 2024 TanzLII) should be resolved in ,favour of the appellant, and .we hold so. - Having demonstrated so, we are of the view that the above grounds of complaint suffice to resolve the whole appeal, we therefore 1 ' ■ > * , find it unnecessary to deliberate on the remaining appellant's complaints regarding ; flops in the preliminary hearing and the question of the unexplained delayed arraignment. In the end of it all, we allow the appeal.

The conviction for the offence of grave sexual abuse is thus quashed and the sentence is accordingly set aside. We thus order the immediate release of the appellant unless held lawful. DATED at DODOMA this 5th day of December, 2024. S. A. LILA JUSTICE OF APPEAL Z.G. MURUKE JUSTICE OF APPEAL G. 1 MDEMU JUSTICE OF APPEAL The Judgment delivered this 6th day of December, 2024 in the presence of the appellant in person and Ms. Rose Ishabakakipp, learned State Attorney for the respondent/Republic, is hereby certified as a true