Emmanuel Muziuka @ Emmanuel Kalambwanda vs Republic (Criminal Appeal No. 105 of 2022) [2024] TZCA 1147 (26 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA fCORAM: SEHEL. J.A.. KIHWELO. J.A. And MPEMU, 3.A.) CRIMINAL APPEAL NO. 105 OF 2022 EMMANUEL MUZIUKA@EMMANUEL KALAMBWANDA ................ APPELLANT VERSUS THE REPUBLIC.................................................................... . RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Sumbawanga) (Nkwabi, J.l dated the 6th day of January, 2022 in DC. Criminal Appeal No. 42 of 2021 JUDGMENT OF THE COURT 24th October & 26th November, 2024 MPEMU. J.A.: The appellant appeared in the District Court of Mpanda for two counts of grave sexual abuse. His charges were preferred under section 138C (1) (a) and (2) (b) of the Penal Code, Cap. 16. According to the particulars of the offence in the two counts, the appellant, for sexual gratification, inserted his fingers into the private parts of "HK", a girl of six years and "AM" also a girl whose age was seven years. The names of the two girls are disguised for identity purposes. We will refer to them as PW1 and PW2 for "HK' and "AM" respectively, or the victims, or the girls. l

In the same particulars of the offence in the two counts, the appellant allegedly committed the said offences at Kotazi area in Mpanda District on 9th July, 2020. In the evening of the fateful day, the appellant was at his hut frying chips. The two girls, that is, PW1 and PW2 appeared therein to get chips allegedly sent by their parents. They stayed for a while and ultimately, the appellant fried chips for them. But before they left, it is alleged that, the appellant inserted his fingers in the vagina of the two girls one after the other. They were heard crying while heading home where they informed one Aziza Salum (PW4) on the ordeal. Siti Shaban (PW3) and one Bahati Haule (PW6) took the duo to the police station for PF3 and went straight to Katavi referral hospital. At the hospital, Filipo Felix (PW5) made a clinical examination in which the victims' hymens were found intact with no signs of bruises as shown in the PF3, exhibit PE3. In his defence, the appellant conceded to have served chips the duo but denied to have had sexual gratification through inserting his fingers in their vagina as alleged by the prosecution witnesses. With the foregoing evidence, the trial court trusted the evidence from the prosecution, thus convicted and sentenced the appellant to a prison term of twenty (20) years for each count. The sentences were set

to run concurrently. The conviction was based on the evidence of the victims which the trial court believed to have met the test enshrined under section 127 (6) of the Evidence Act, Cap.6 (the Evidence Act). The appellant appealed to the High Court but was not successful in that first appeal. The High Court found that the offence of grave sexual abuse was proved to the required standard thus confirmed both the conviction and sentences. In upholding the conviction, the High Court found that PW1 and PW2 explained how the appellant abused them sexually and without delay, they informed their parents on the occurrence. Essentially, as was to the trial court, the High Court was also satisfied with the credibility of the evidence of the two victims. It thus, dismissed the first appeal. Again, the appellant was not happy with such findings, for that reason, he lodged a memorandum of appeal containing the following grounds:

1. That, the learned Judge erred in faw and fact by dismissing the appellant's appeal for the case which the prosecution side failed to prove the charge beyond all reasonable doubt at high standard as required by law.
2. That, the learned Judge erred in law and fact by dismissing the appellant's appeal relying on the evidence adduced by PW1 and PW2 (the victims) while he failed to note that, the trial court failed to conduct voire dire examination since the victims were o f

tender age. Please refer the case o f Kimbute Otie / v. Republic, CriminalAppeal No.300 o f 2011. 3. That, the learned Judge erred in law and fact by dismissing the appellant's appeal basing on PW1 and PW2 (the victims) while their evidence was improperly received and wrongly relied in convicting the appellant and the only way was to expunge it Please refer the case o f Michael Edward @ Balotel v. R, CriminalAppealNo. 70 o f2017f H/C o f Tanzania at Sumbawanga. 4. That, the learned Judge erred in law and fact to dismiss the appellants appeal while it failed to consider the evidence adduced by PW5 (doctor) who examined the victim and found no bruises in the victims' vagina, the hymens were intact, all labia were normal and no any discharge. 5. That, the learned Judge erred in law and fact by dismissing the appeal relying on PW3, PW4 and PW6 without taking into consideration that the evidence was hearsay. We heard the appellant unrepresented on 24th October, 2024. The respondent/ Republic on that day had the services of Mr. Calistus Kapinga, learned Senior State Attorney who opposed the appeal. The appellant chose to hear first, a response to the appeal by the respondent's counsel and would rejoin thereafter, if need would arise. In resisting the appeal, Mr. Kapinga commenced his argument by addressing grounds 2 and 3 jointly. In the two grounds, the appellant

faulted the two courts below for basing conviction on the evidence of PW1 and PW2, witnesses of tender age, in ignorance of the requirement of section 127 (2) of the Evidence Act. In his brief submission, Mr. Kapinga referred us to pages 12 and 14 of the record of appeal in the evidence of PW1 and PW2 respectively arguing that, the two witnesses made prior promise to tell the truth and not to tell lies before their evidence were received by the trial court. He thus found the two grounds without substance and urged us to dismiss them. Responding to ground 4 of the appeal, the appellant's complaint is levelled on non-consideration of the evidence of PW5 who conducted clinical examination to the duo. In that evidence, PW5 found the hymens of the two victims intact with no bruises. The learned Senior State Attorney submitted in this ground that, not in every sexual offence the medical evidence would be relevant to prove it. He added that, what PW5 essentially did was to record what he observed in his clinical examination. The learned counsel did not also comprehend how the appellant was prejudiced by failure of both courts below to consider the evidence of PW5 in determining the appellant's criminal responsibility. Arguing ground 5 of the appeal regarding basing the conviction in the evidence of PW3, PW4 and PW6 which the appellant alleged were a

hearsay, the learned Senior State Attorney admitted that PW3, PW4 and PW6 were not present at the crime scene. He submitted that, relevancy of their evidence is in respect of the age of the two victims. It is in their evidence that the age of PW1 and PW2 were proved to be 6 and 7 years respectively. That besides, Mr. Kapinga argued, the conviction of the appellant was solely based on the evidence of PW1 and PW2. Replying to ground 1 of the complaint in which the appellant alleged that the prosecution case was not proved, Mr. Kapinga submitted that, the evidence of the two victims of sexual offences is clear that the appellant inserted his fingers in the vagina of PW1 and PW2. This evidence, according to Mr. Kapinga, was neither shaken during cross examination nor discredited by the evidence of DW1 during defence. He thus found the evidence of PW1 and PW2 to be the best evidence and he thus urged us to dismiss the appeal When probed by the Court on the complained contradictions in the prosecution case, Mr. Kapinga conceded on the following discrepancies in the prosecution case: One, it is not known who between PW3 and PW4 instructed PW1 and PW2 to purchase chips from the appellant. Mr. Kapinga intimated so because each, that is, PW3 and PW4 claims responsibility. Two, PW1 and PW2 claimed to have reported the incident

to PW4 who was at home while at the same time PW3 and PW6 testified to have met with PW1 and PW2 on the way, in which, the duo reported to them about the ordeal. Three, there is no evidence to the effect that PW1 and PW2 passed at any place before reporting to PW4. That notwithstanding, Mr. Kapinga implored us to consider such contradiction as minor and to have not gone to the root of the matter. He thus, urged us to dismiss the appeal for being unmeritorious. When his turn came, the appellant blamed both courts below for not incorporating the evidence of PW5 in their findings, which to him, there is truth in that evidence. As said, PW5 medically examined the duo and noted all was well. He, in the end, urged us to allow the appeal basing on the contents of the grounds of appeal and that of his rejoinder submission. We have considered the grounds of complaint, submission by the parties and the entire record of appeal. What we have so far noted from the outset is the consensus that on the fateful day, PW1 and PW2, who are the victims, went to the appellant's hut for purchasing chips. The appellant fried chips for them and in the end, released them for home while carrying their chips. It is further not in dispute that, PW1 and PW2 are persons of tender age within the meaning of section 127 (1) and (4)

of the Evidence Act. However, the appellant and the respondent/Republic parted ways on what transpired after PW1 and PW2 left the appellant's premises. Whereas the respondent's argument is that the appellant, for his sexual gratification, inserted his fingers in the vagina of both PW1 and PW2, the appellant, on the other hand, pleaded his innocence as the two girls left his premises safely. What happened to the two girls, is the responsibility we will resume at a later stage. Beginning with the complaint in grounds 2 and 3 on the procedure to record the evidence of PW1 and PW2, we demonstrated above that, the appellant complaint is on failure by the trial court to follow the procedure in recording the evidence of witnesses of tender age. The complained procedure is provided for under section 127 (2) of the Evidence Act as follows: "127 (2) A child o ftender age maygive 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." In the above quoted subsection (2) of section 127 of the Evidence Act, 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 lies 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, in John Ngonda v. The Republic (Criminal Appeal No. 45 of 2020) [2023] TZCA 13 (15 February 2023; TanzLII) In the instant complaint, we are mindful to make reference to page 12 and 14 of the record of appeal which Mr. Kapinga asked us in order to comprehend if that procedure was complied with by the trial court before the evidence of PW1 and PW2 was recorded. Before receiving the evidence of PW1, the learned trial Magistrate made the following observation; "Court: Upon my thoroughly examination on the intelligence and understanding o f this witness by putting questions and answers, lam satisfied that this witness does not possess the intelligence and understanding, she does not understand the nature o f oath either, this witness is not a competent witness to give evidence under oath however she promised the court to tell the truth and not a lie. She is going to give unsworn statement" Later at page 14 when receiving the evidence of PW2, the record of the trial court reads:

"Court: Upon my thorough examination by putting questions and answers this witness does not possess the highest intelligence and understanding, he does not even understand the nature o f oath, however she promised to teii the truth to court and not a fie, she is going to give unsworn statement" Our understanding of the above extracts of the record of the trial court is in threefold; one, that the learned Senior Resident Magistrate administered some few questions to PW1 and PW2 to satisfy herself if the duo understood the nature of oath. Two, following questions administered, it came to her lucid understanding that the duo did not understand what oath is all about for purposes of evidence. Three, the duo made their promise to tell the truth and not to tell iies. Having such satisfaction, the evidence of PW1 and PW2 were duly recorded by the trial court. Mr. Kapinga urged, and we hold so that, PW1 and PW1 made their prior promise to tell the truth and not to tell lies before they testified. For that matter, we are constrained to dismiss this ground of complaint. We now turn to the remaining grounds of complaint, that is, grounds 1, 4 and 5 as reproduced above. The three grounds which are determined conjointly collapse to one complaint, that is, whether the

prosecution case was proved beyond reasonable doubt as to invite both courts below to hold the appellant criminally liable for the offence charged. We should first resolve one complaint raised by the appellant in ground 4 of the complaint. This is with regard to the evidence of PW5 which the appellant has the feeling that, had both courts below took into account that evidence, for sure, he would not have been convicted of the offence. We said above, and worthy repeating that, PW5 examined the duo medically and found their hymen intact without any bruises. Exhibits PE2 and PE3 tendered by PW5 is a revelation to this fact. We agree with Mr. Kapinga that, in the circumstances of this case where the appellant was charged with the offence of grave sexual abuse, presence or absence of bruises or that the duo's hymens were intact or in the contrast is not relevant in proving the offence of grave sexual abuse. It is sufficient for the prosecution to establish beyond reasonable doubt, ingredients of the offence of grave sexual abuse stated under section 138C (1) of the Penal Code. For ease of reference, we reproduce the said section as hereunder: "138C(1) Anyperson who, for sexualgratification, does any act, by the use o f his 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 f grave sexuai abuse if he does so in circumstances falling under any o f the foilowing descriptions, that is to say- (a) without the consent o f the other person; (b) with the consent o f the other person where the consent has been obtained by the use o f force, threat, or intimidation or putting that other person in fear o f death or o f 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." In the above section, in sexual offences, an act constitutes the offence of grave sexual abuse where: one, the act is for sexual gratification. Two, the act does not amount to rape. Three, it involves the use of genital or any other part of the human body or any instrument or any orifice or part of the body of another person. Four, without the consent of the other person. Five, where consent is a result of the use of force, threat, intimidation, fear of death or of hurt or unlawful detention-

Six, where consent is obtained when the other person is of unsound mind or is in a state of intoxication induced by alcohol, drugs etc. As it is, it is not a requirement of the law for the said act to result into bruises. We dismiss this complaint as well. Reverting to the complaint raised as to whether the prosecution case was proved, both courts banked on the evidence of PW1 and PW2 in grounding the conviction. 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 on misdirection or non-directions. See, for instance, in Ally Manono v. Republic (Criminal Appeal No. 242 of 2007) [2010] TZCA 22 (26 February 2010 TanzLII) and in Harban Haji Mosi and Another v. Omari Hilal Seif and Another [2001] T.L.R. 409. At page 415 in Harban Haji Mosi (supra), the Court held: "For that reason , the court would not, when dealing with these appeals, interfere with the concurrent findings except where there is such misdirection or no or non-directions as could have resulted in the miscarriage ofjustice." In the instant appeal, we are constrained to interfere the concurrent findings of facts because both courts below misapprehended that: one, there is nowhere PW1 testified to have met with PW3 and

PW6 to inform them of the ordeal. Two, it is not clear how did PW3 and PW6 met with PW2 alone in absence of PW1 in circumstances where the record is silent as to whether, at any rate, PW1 and PW2 parted away at a certain point. Three, since the duo were together all through, it is glaring how PW4 in the company of PW1 met PW3 and PW6 in the company of the other victim (PW2) at the appellant's premises. Mr. Kapinga conceded the existence of such contradictions and inconsistencies in the prosecution case but was sceptical to find them in favour of the appellant because, to him, they are minor and have not disturbed the prosecution's case. 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) However, with due respect to the learned Senior State Attorney, contradictions and inconsistencies in the instant appeal are not minor. We are saying so because PW1 and PW2 are the only eye witnesses who informed PW3, PW4 and PW6 that the appellant inserted his fingers in their vagina. In the circumstances, it was therefore not expected to have such serious inconsistencies on the information reached to the prosecution witnesses. As we observed above, the record of appeal at

page 13 reveals that PW1 and PW2 were together all the time from when they were asked to look for chips to the time they alleged to have returned to PW4. This evidence is in contradiction with that of PW3 at page 16 and PW6 at page 22 who alleged to have met the duo on the way. Surprisingly, PW4 at page 18 of the record of appeal besides self- contradictions to have the duo reported to her, testified further to be with PW1 aione and met PW2 with PW3 and PW6 at the appellant's premises. Yet, in their evidence, whereas PW1 testified at page 13 of the same record that she and PW2 reported to PW4, PW2 said at page 15 of the record to have first met with PW3 and PW6 before they went with PW1 to PW4. Again, the tatter is the one who informed PW3 and PW6 to make follow ups of the duo after she had noted of their late return at home. What a contradiction. We think the above inconsistencies and contradictions are conspicuous and prevalent as such, they should not have escaped the mind of both courts below. We add that, as stated in Mohamed Said Matula v. Republic [1995] T.L.R. 3, the trial court was duty bound to retrieve the existence of such contradictions, resolve it and decide the extent of such contradictions in the prosecution case. It was not done. Mr. Kapinga urged us to hold such contradictions minor ones. We firmly

hold that they are not, and we are prepared to hold that, they create doubts in the prosecution case which should be resolved in favour of the appellant. See Nassoro Mwalami Kuga v. Republic, (Criminal Appeal No.411 of 2022) TZCA 412 (7 June 2024; TanzLII) What we have so far observed is that the findings of both courts below based on the credibility of PW1 and PW2. The duo are the victims. Since that was the sole basis to ground conviction, both courts trusted that evidence within the principles stated in Seleman Makumba v. Republic [2006] T.L.R. 379. The question which is repeatedly asked is whether, in the circumstances of this case, as we stated above, the trial court found PW1 and PW2 credible witnesses for the prosecution. In John Ngonda v. the Republic (Criminal Appeal No. 45 of 2020) [2023] TZCA 13 (15 February 2023 TanzLII), at pages 15 and 16 of the judgment, it is provided that: "Ahead o f determining the above, generally, we wish to remark that due to the inherent nature of the offence o f rape or any other sexual offence usually involving two persons only when it is committed, the testimony of the complainant is mostly crucial and must be examined and judged cautiously. Indeed, as we held, for instance in Seleman Makumba v . Republic

[2006] T.L.R. 379, the best proof o f rape (or any other sexual offence) must come from the complainant Consequently, the complainants credibility becomes the most important consideration such that, if his or her evidence is believable, persuasive, and consistent with human nature as well as the normal course o f things, it can be acted upon as the sole basis o f conviction

• see section 127 (6) o f the Evidence Act" [Emphasis supplied] The circumstances of this case demand some kind of cautiousness in acting on the evidence of PW1 and PW2 to ground conviction. We are firmly of the view that, trust made by both courts below to PW1 and PW2 should not have been determined in isolation of the evidence of other prosecution witnesses in circumstances where all what PW3, PW4 and PW6 testified are the information they received from the duo victims. All the stated contradictions and inconsistences were reaped from the victims, PW1 and PW2. The duo should therefore not have been trusted. In the end, the case of the prosecution against the appellant was not proved beyond reasonable doubts.

Accordingly, we allow the appeal. The conviction for the offence of grave sexual abuse is thus quashed and the sentence is set aside. We order immediate release of the appellant unless lawfully held. DATED at DAR ES SALAAM this 20th day of November, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 26th day of November, 2024 in the presence of Appellant in person and Mr. Jerinus Nzanila, learned State Attorney for the Respondent/Republic connected through video conference from High Court Sumbav\f^j^i£^fereby certified as a true copy of the original. !o( ! U IS f- A. MTARANIA / W UTY REGISTRAR V \ ^ ^ ^ ^ c l o URT OF APPEAL