CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KOROSSO. J.A.. RUMANYIKA. J.A. And ISSA. J J U CRIMINAL APPEAL NO. 783 OF 2023 ALLY ISSA MKALAMA..............................................................APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) (Masabo, J/) dated the 8th day of September, 2023 in Criminal Appeal No. 35 of 2022 JUDGMENT OF THE COURT 11th & 26th March, 2025 RUMANYIKA, J.A.: The appellant, Ally Issa Mkalama is appealing against the decision of the District Court of Kondoa ("the trial Court") in Criminal Case No. 47 of 2021 which was upheld by the High Court on appeal. In that case he was charged for unnatural offence contrary to section 154(l)(a) of the Penal Code, Cap 16 ("the Penal Code"). Upon conviction, he was sentenced to serve thirty years' imprisonment. The prosecution alleged that, on 10/06/2021 at Kelema village, within Chemba District in Dodoma Region, the appellant had carnal knowledge of a thirteen years' old boy against the order of nature. We shall refer him as the victim or PW2 in order to conceal his identity. It is thus alleged that, on the fateful day, the victim's mother (PW1) had sent him to one Abas to collect a bicycle. But unfortunately, on arrival, the young boy met the appellant who had his carnal knowledge against the order of nature while threatening to stab him with a knife if he resisted or revealed the ordeal to anybody else. Thereafter, the victim went back home crying in pain. He reported the appellant to his mother, PW1. Then PW1 reported the appellant to the Ndoroboni Hamlet leader and later to one Masumbuko Musa Kemundo (PW3), who was the Village Executive Officer thereof. PW3 is the one who arrested the appellant and the latter is said to have confessed his guilt to the charged offence, then the case was referred to the police and hospital. In her capacity as Justice of the peace, a resident magistrate of Paranga Primary Court one Theresia Constantine Kiwango (PW4) is the one who recorded the respective extrajudicial statement of the appellant (exhibit PI). The case was investigated by H.3113 Detective Leonard (PW5). According to PW5 the appellant's cautioned statement was recorded by F.8135 D/C Elineema. Based on the foregoing, the appellant was arraigned before the trial court for the charged offence. In his defence, the appellant denied to have committed the charged offence. He also distanced himself from the alleged cautioned and extra judicial statements claiming that, he made them while not a free agent. At the end, the trial court found the prosecution case to have been proved beyond reasonable doubt against the appellant. He was convicted and sentenced to life imprisonment. His first appeal at the High court of Tanzania at Dodoma was not successful, as highlighted above. Aggrieved, the appellant has presented before us, seven (7) grounds of appeal which are paraphrased as follows: One, evidence of the victim (PW2) was improperly taken hence liable to be discounted. Two, conviction was wrongly based on plain oral evidence o f the Acting Village Executive Officer (PW3). Three, conviction was based on the improperly admitted exhibit PI which lacked the appellant's signature. Four, penetration o f the victim was not proved because the respective medical doctor did not appear to testify. Five, evidence o f PW1 was hearsay which is not acceptable. Six, PW5 was wrongly believed on the alleged appellant's confession without producing a cautioned statement. Seven, preliminary hearing of the case contravened section 192 o f the Criminal Procedure Act. Cap 20 R.E. 2019 (the CPA). Appearing in person unrepresented, the appellant let Ms. Bertha Kulwa, the learned State Attorney to reply to the grounds of appeal first, while reserving his right to rejoin should the need arise. Ms. Kulwa teamed up with Mr. Francis Kesanta, also learned State Attorney for the respondent Republic. Opposing the appeal, Ms. Kulwa responded to the seven grounds sequentially as hereunder: As regards the 1st ground on the authenticity of the victim's evidence, Ms. Kulwa contended that, in terms of section 127(2) of the Evidence Act, evidence of the victim was properly admitted as concurrently found by the two courts below. She added that, the two courts rightly found that the victim was competent and he reliably testified having affirmed and promised to tell the truth and not to tell the lies. Ms. Kulwa cited the Court's decision in Jamali Ally Salum v. R (Criminal Appeal No. 52 of 2017 [2019] TZCA 32 (28 February 2019; TanzLII) to show that the victim's evidence had met the required threshold. Further, she asserted that, in the present case, the victim testified confidently and coherently enough to be believed. About the 2nd ground of appeal which challenged the oral evidence of PW4 before whom the appellant is alleged to have confessed his guilt, Ms. Kulwa contended that, this complaint is unmerited. She argued that, it being oral, written or even by conduct, all forms of evidence is acceptable and admissible because what counts most is the credibility and reliability of the respective evidence. She bolstered her point by citing our decision in Saganda Saganda Kasunzu v. R (Criminal Appeal No. 53 of 2019) [2020] TZCA 304 (18 June 2020; TanzLII). Moreover, Ms. Kulwa viewed the 2nd ground of appeal as an afterthought, as the appellant did not raise it at the trial in his defence evidence. The 3rd ground of appeal concerned the extra judicial statement for not being signed by the appellant. Ms. Kulwa contended that, this complaint also is unmerited as it was not supported by the record. It was actually signed. Therefore, she beseeched us to dismiss the 3rd ground too. The 4th ground, concerned non-appearance in court of the medical doctor denting the prosecution case for penetration was not proved. Ms. Kulwa contended that, the doctor's evidence had no additional value as the victim's evidence was the best of all, credible and good enough to ground the conviction. To fortify her argument, Ms. Kulwa referred us to the Court's decisions in Selemani Makumba v. R [2006] T.L.R. 384 and Jamali Ally Salum (supra) urging us to dismiss the complaint because penetration was proved. Replying to the 5th ground of appeal which challenged the evidence of the victim's mother (PW1) for being hearsay, Ms. Kulwa contended that, this complaint is also misconceived and unmerited. She argued that, the victim's mother (PW1) played four crucial roles to strengthen the prosecution case: one, that, while in shamba, she sent the victim to collect a bicycle which would assist them to ferry home the agricultural harvested produces. Two, she responsibly proved the age of the victim to be fourteen years then. Three, she was the first person whom the incident was reported to at the earliest opportunity possible and four, upon examining the victim, she noticed the child boy to have been penetrated. Then she reported that unfortunate incident and accordingly set it onto the legal machinery. As regards the 6th ground of appeal which faulted the evidence of the Investigator (PW5) as being inconsequential for non-production of the respective cautioned statement, Ms. Kulwa urged us to dismiss it because the impugned conviction was not solely based on it. Lastly, it was the 7th point of grievance challenging the preliminary hearing for being flawed procedurally contravening section 192 of the CPA. Resisting it as a misconceived complaint, Ms. Kulwa contended that, the appellant was not prejudiced by it, as he had the opportunity to hear all the prosecution witnesses. And that the appellant also cross-examined them testing the witnesses' evidence and that, the alleged anomaly was curable in terms of section 388 of the CPA. Ms. Kulwa wound up her submission urging the Court to find the appeal unmerited and to dismiss it entirely. The appellant had nothing useful to rejoin. He only urged us to consider his grounds of appeal, to allow it and restore his liberty without more. Upon hearing the parties, and having considered the authorities cited and also the record of appeal, the issue of controversy is whether the prosecution case was proved beyond reasonable doubt as it was concurrently found by the two courts below. We are mindful of the long- established legal principle that the Court's power to interfere concurrent findings of the lower courts is not guaranteed. See Wambura Marwa Wambura V. R (Criminal Appeal No. 115 of 2019) [2022] TZ CA 429 (14 July, 2022 TanzLII). For the purposes of this appeal, therefore, it is trite that, in order to prove the charge of unnatural offence under section 154(l)(a) and (2) of the Penal Code, at least three ingredients have to be established: one, penetration of the manhood into the victim's anal cavity. Two, that, the victim was under eighteen years old then and three, that the perpetrator of that act is the accused. For clarity, for the purpose of the deserving penalty, the section reads: "154. -(1) Any person who- (a) has carnal knowledge of any person against the order of nature; or (b)..... (not applicable). or (c)....(not applicable). (2) Where the offence under subsection (1) is committed to a child under the age of eighteen years the offender shall be sentenced to life imprisonment." (Emphasis added) On the 1st ground of appeal, about the recording of the victim's evidence allegedly contravening section 127(2) of the Evidence Act Cap 6 R. E 2019 (the TEA), we are settled in our minds that the complaint was out of place. We find it apt to reproduce that provision for clarity as hereunder; "s. 127(2) A child of 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". With reference to the section above, we note, in the instant case that, according to the assessment made by the learned trial magistrate, correctly so in our view, the required threshold was met as appearing on page 60 of the record of appeal. It reads as follows: "PW2... 13 yrs, Rangi, Muslim Court: [knows] the meaning and purpose of affirming it is the observation of this court that [witness] can be affirmed. SGD MJ. MASSAO-RM 13/07/2021 Affirmed and testified". From the excerpt above we are satisfied that the victim's was properly recorded. Even assuming that it was not, which is not the case, such anomaly was curable. We note that, in the wake of the amendments made under the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of 2023 generally, non-compliance with section 127(2) of the Evidence Act is no longer fatal. See- Abdul Akwilina Mramba and Others v. R (Criminal Appeal No. 342 of 2021) [TZCA] 704 (9 August 2024; TanzLII). In that case, the Court being confronted with a similar problem, it held: "PW2 evidence was taken under oath. Therefore, in essence, there was no requirement for her to promise to tell the truth and not to tell lies. Nevertheless, it should be noted that, the amendments to the Evidence Act ushered in by the Legal Sector Laws (Miscellaneous Amendment) Act, No. 11 of 2023, amends section 127 by adding subsection (7) which reads: ...failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible". Moreover, to establish that the appellant was the perpetrator of the charged act, PW2, in his testimony stood firmly and coherently as argued by Ms. Kulwa correctly so. On how the appellant managed to accomplish the evil act, the victim consistently stated that the appellant intimidated him with a knife and therefore, he became submissive to him. Moreover, the appellant's extra judicial statement (exhibit PI) advanced the prosecution case as it was admitted in evidence without any objection. More importantly, we agree with Ms. Kulwa that, those other sources apart, the victim's evidence alone was good enough to form basis of the conviction. See- for instance, Selemani Makumba v. R (Supra). Therefore, we agree with Ms. Kulwa's contention that, appearance of the medical doctor who examined the victim was unnecessary in the circumstances of the case. And that, it would have added no evidential value because in the light of section 143 of the Evidence Act, Cap. 6 R.E. 2022, it is the quality and credibility of evidence that counts and not its quantity. We stressed this stance, also in Jovin Daud v. R (Criminal Appeal No 4821 of 2020) [2024] TZCA 97 (23 February 2024; TanzLII). As such, as it was rightly held concurrently by the two courts below, the evidence of PW2 was credible and therefore admissible. Therefore, the 1st ground of appeal is dismissed. The 2nd point of grievance, we recall challenged the evidential value of PW3's oral evidence that, the appellant confessed his guilt before him. We want to stress, at this juncture that our statutes take cognizance of the categories of evidence, be it oral, written, implied and so on. Therefore, none of them is inferior to the other. In other words, the PW3's oral evidence was properly admitted and considered. Moreover, the appellant did not cross examine PW3 on it as it is manifested on page 14 of the record of appeal. As such, the appellant's failure to cross examine is tantamount to accepting that evidence to be the true version of it which cannot be denied at this stage. We have taken this stance on a number of occasions including in Sokolo Richard v. R (Criminal Appeal No. 478 of 2020) [2024] TZCA 1109 (15 November 2024; TanzLII). Therefore, we dismiss the 2nd ground of appeal. In his 3rd complaint, the appellant challenged the appellant's extra judicial statement (exhibit PI) for not been signed by the respective Justice of the Peace and by himself to make it authentic. However, upon reviewing the original record of appeal, we are satisfied that, the statement was duly signed by them. As such, this complaint was unfortunately raised as it is inconsistent with the record. More importantly, we agree with Ms. Kulwa that, the appellant neither objected to being admitted nor did he cross examine PW4 in order it to contradict her. In that regard, therefore, we find this complaint to be an afterthought and not tenable at this stage. See-Twaibu Mohamed Ngindo and Another v. R (Criminal Appeal no 487 of 2022) [2024] TZCA 744 (16 August 2024); TanzLII). As such, the 3rd point of grievance is also unmerited and it is dismissed. The 4th ground of appeal questioned alleged penetration of the victim on account that the respective examining medical doctor did not appear to establish penetration. We need not belabor on this complaint because it is also misconceived. As such, the totality of the evidence on record, as alluded to before, it proved penetration. And that, the perpetrator of that act was the appellant. More so, the victim's evidence which did not even require corroboration given the nature of the charged offence. The Court reiterated it in Selemani Makumba (supra) that: "...A medical report or the evidence o f a doctor may help to show that there was sexual intercourse but it does not prove that there was rape, that is unconsented sex, even if bruises are observed in the female sexual organ. True evidence o f rape has to come from the victim, if an adult, that there was penetration and no consent, and in case of any other woman where consent is irrelevant, that there was penetration..." Therefore, the appellant's 4th point of grievance is also unmerited and it is dismissed. Moreover, with regard to the age of the victim and proof, and in this case for the purposes of sentencing, again we are certain that PW1 played such a great role as the victim's parent. We note that, she was mandated to prove the age, amongst other sources. Others are; the victim himself, his relative, a medical practitioner or, where it is practicable, production of the respective birth certificate. See- for instance, our decision in Shani Chamwela Suleiman v. R (Criminal Appeal 481 of 2021) [2022] TZCA 592 (28 September 2022; TanzLII). For the present case, the seemingly credible evidence of the mother that the victim was fourteen years old then, passed unchallenged. After all, as regards PW1, the appellant did not persuade the Court to depart from the long- established legal principle, generally, that every witness is entitled to credence. Regarding the 5th ground of appeal, where the appellant challenged the evidence of PW1 for being hearsay, this complaint is unmerited too. As such, we agree with Ms. Kulwa that, the role played by PW1 could not be underestimated for three reasons: one, being the victim's mother, PW1 was the first person to whom the victim reported the incident naming the appellant as the perpetrator of the act. Two, the appellant was named 13 at the earliest opportunity possible which evidence was not sufficiently shaken and three, upon examining the victim, PW1 noticed some spermatozoa in the boy's anal cavity which reliably exhibited penetration. As such, the issue of hearsay evidence of PW1 should not have been raised. Therefore, the 5th ground of appeal is also dismissed. We also recall that, the 6th ground of appeal faulted the two courts below for having believed the investigative evidence of PW5 before whom the appellant is alleged to have confessed his guilt. This is a bit sounding complaint. Indeed, no cautioned statement was produced at the trial to substantiate the allegations. However, the record speaks volumes that the impugned conviction was not solely hinged on this piece of evidence as rightly argued by Ms. Kulwa. Therefore, the 6th ground is dismissed too. Lastly, it was the 7th ground of appeal on the alleged contravention of section 192 of the CPA. This point also lacks merit because the record is clear that, upon conclusion of the exercise and reading it to the appellant, parties and the trial magistrate duly signed the respective memorandum of agreed facts of the case. Nonetheless, one may wish to know that, in the light of section 192 of the CPA, preliminary hearing is only intended to accelerate trials as it does not constitute an integral part of the respective trial. See- Shabani Saidi Likubu v. R, Criminal Appeal No. 228 of 2020 [2021] TZCA 251 (11 June 2021; TanzLII). In other words, therefore, non-compliance of the said provisions is not fatal as it is curable under section 388 of the CPA. See- Omary Amanzi v. R (Criminal Appeal No 353 of 2022) [2024] TZCA 1240 (11 December 2024; TanzLII). As such, this ground of appeal also is devoid of merit. In the upshot, the appeal is dismissed entirely. DATED at DODOMA this 25th day of March, 2025. W. B. KOROSSO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 26thday of March, 2025 in the presence of the appellant who appeared in person and Ms. Rose Ishabakaki, learned State Attorney for the respondent, is hereby certified as a true copy of the original.