AfricaPress-Tanzania: THE Court of Appeal has dismissed the appeal lodged by a resident of Kilimanjaro Region, Thobias Kitavi, who was sentenced to 20 years imprisonment for grave sexual abuse against the 14-month-old boy.
Justices Batuel Mmilla, as he then was, Mwanaisha Kwariko and Lugano Mwandambo ruled against Kitavi, the appellant, after upholding the findings of both trial District Court of Rombo and the High Court, Moshi District Registry.
“We find no reason to disturb the concurrent findings of the two courts below. We therefore hold that the appellant’s appeal is devoid of merit and we hereby dismiss it in its entirety,” they declared.
During hearing the appeal, the appellant had submitted that the prosecution failed to prove the charge beyond reasonable doubt.
He contended that the prosecution ought to have brought the child victim in court for the trial court to rule out whether he could testify or not as per the law.
The appellant had argued further that there were contradictions in respect of the name of the victim between the names mentioned by her mother and another witness in her testimony despite which, the prosecution did not amend the charge to rectify the anomaly.
In their judgment delivered recently, the justices of the appeals court started determining the complaint on prosecution’s failure to summon the child victim to testify.
They held a similar view as that of the High Court that it was inconceivable a child of 14 months could be called to testify in court.
The justices noted that the High Court had dismissed the complaint for the reason that a child of 14 months could not speak and explain what had happened.
There was also a complaint on variance of the name of the victim between the charge and evidence on record.
They agreed with the holding of the High Court that the differences in the name did not change the fact that the child aged 14 months was sexually abused and his mother, who very well knew her son, was better placed to know his name.
Regarding the complaint on contradictions, the justices noted the appellant did not indicate any part from the variance in the name of the victim and as to the proof of the charge, they agreed with the prosecution that the evidence was clear and straight.
“(Prosecution witnesses) witnessed the appellant inserting his (private organ) into the mouth of the victim and when they reacted, he told them that he was helping the victim’s mother to suckle the baby who had allegedly failed to do so,” they said.
Thereafter, the justices noted, one of the witnesses informed the child’s mother of this bizarre act and when the mother hurried to the scene, the appellant reacted by uttering very derogatory words with threats to beat to her.
Moreover, the justices noted that in his defence the appellant did not deny the fact that he was at the scene during the material time neither did he have any grudges with the prosecution witnesses.
“We therefore find that the prosecution witnesses had no reason to lie against the appellant with such abnormal and inhumane act. We do not think that any sensible woman could craft false allegations like the present one concerning her own child had it not been what really happened,” they said.
During the trial, the prosecution had alleged that the appellant committed the offence on October 24, 2015 at or about 14:30 hours at Kakuyuni-Holili Village within Rombo District.
The court was told that on the material date at about 14:30 hours, the victim’s mother was at her place of work selling food and drinks. Her son was playing around.
Whilst there, the appellant came and asked for a drink which she did not have. She continued with her work while the appellant sat outside in an unfinished building.
Sometime later, another customer called the mother to go and see what the appellant was doing to her son. She quickly responded and found him had unzipped his trousers giving his private organ to her child to suck.
