CRIMINAL APPEAL NO 303 OF 2022 ALLY SELEMANI VS REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: WAMBALI. J.A.. MASHAKA, J.A. And MASOUD, J.A.l CRIMINAL APPEAL NO. 303 OF 2022 ALLY SELEMANI....... ............................ .........................................APPELLANT VERSUS THE REPUBLIC..................................... ................... ................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) fltemba. J.1 ) dated the 27th day of January, 2022 in HC Criminal Appeal No. 178 of 2021 JUDGMENT OF THE COURT 3rd June, 2024 & 11th February, 2025 MASHAKA. J.A.: This second appeal is against the decision of the High of Tanzania sitting at Dar es Salaam in HC Criminal Appeal No. 178 of 2021 which dismissed an appeal by the appellant Ally Selemani, against conviction on two counts of unnatural offence. Before the District Court of Kigamboni at Kigamboni in Criminal Case No. 47 of 2019, the appellant was arraigned with two counts of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [Cap 16 R.E. 2019]. The particulars of the offences alleged that on 19th February, 2019 at Mwongozo area within Kigamboni District in Dar es Salaam, the appellant had carnal knowledge of the victims both aged 4 years against the order of nature. To protect their identity, we shall hereafter refer to them as the victims or PW2 and PW3 respectively. The appellant denied the accusations resulting in a full trial. The prosecution relied upon the evidence of eight (8) witnesses namely; Antony Kisinini (PW1), (PW2), (PW3), Gama Gregory (PW4), Zahoro Muhudi (PW5), WP 10208 DC Lucina (PW6), Selemani Mzee Ramadhani (PW7) and A/Insp. Edger Malekela (PW8) and five (5) documentary exhibits admitted in evidence; clinic card of PW2, medical examination report, certificate of seizure, inventory of unclaimed property and identification parade register to prove the allegations. In his defence, the appellant was the only witness and denied the accusations. Upon conviction, he was sentenced to life imprisonment. His appeal to the High Court was unsuccessful, hence this appeal. The following narrative was presented by the prosecution case. The victims PW2, PW3, and another child were residing in the same 2 neighbourhood where it was alleged that on 19th February, 2019 at 11:00 am in Mwongozo area within Kigamboni District in Dar es Salaam Region, they were playing together at the house of PW1, father of PW2. He testified that PW2 was aged 4 years and tendered a clinic card (exhibit PI). Through a window while in his house, PW1 saw Kiswabi, who was carrying a sack talking to the victims and gave them something which he described as a black thing. Shortly thereafter the victims went missing and could not be found at the place they were playing. PW1, his wife and neighbours mounted a search for the victims in the neighbourhood without any success. PW1 was later informed by a person called Happy that his son (PW2) had returned home and his whole body was covered in mud but the other two victims had not been found. However, Happy, who was not called to testify, directed PW1 to pass through the Kokoni area before returning home. PW1 and others who were assisting him heeded the advice and upon arriving at the said area found the other two victims naked and their bodies were also covered in mud. PW1 examined the two victims and discovered bruises in PW3's anal area. However, the evidence is silent about PW2 and the other victim. It was the testimony of PW1 that he examined PW2 at home and discovered semen and anal bruises which prompted him to report to the Ward Executive Officer accompanied by their mothers. The victims were taken to the Police and a PF3 was issued for each of them. Before the trial court, PW2 stated that the appellant gave them baobab seed and pleaded with them to follow him to the bush and they followed him. In his evidence, PW3 testified that the appellant took them to Kokoni. On arrival at the destination, the appellant asked PW2 and PW3 to undress themselves, sodomized them too and ordered them to leave the place. PW3 gave a similar story but differed as to the manner of being undressed and how the event ended. PW3 said that the appellant did undress them, sodomised them and left them at the scene of crime. In addition, PW3 stated that at the time the appellant left the scene of crime, he had fallen asleep and the other victims woke him up while PW2 had left the place, leaving them. As gathered from the evidence of PW3, none of the two victims, found at Kokoni, mentioned the appellant but it appears that the people who went there following footprints to where the culprit headed. They met a woman on the way who, upon inquiry, replied to have seen a person crossing a river. They also crossed a river and inquired from a person at a nearby house as to whether any person was seen passing that area. The person responded to have seen Kiswabi who was selling pumpkins, and had a kiroba. Thus, that information led to the arrest of a person who matched the description of a suspect who was talking to the missing children and carrying a sack to be Kiswabi, and later on came to be known as Ally Selemani, the appellant. PW1, PW2 and PW3 referred to the suspect by the name of Kiswabi. PW8 conducted an identification parade where the three victims; PW2, PW3 and the other victim, identified the appellant as the culprit by the name of Kiswabi without linking him with the name Ally Selemani. It was PW6, a police investigator who investigated the case and informed the trial court that Kiswabi and Ally Selemani is one and the same. More so, no witness, including PW1, said how they knew the appellant. The prosecution brought PW4, a medical officer who examined the three victims and affirmed that he received PW2 and PW3 accompanied by their respective parents, each was wrapped in a khanga and they were covered in mud all over their bodies. They complained that their children were sodomized. Upon examination, PW4 observed mud and presence of bruises along the area surrounding their anus but, found their sphincter muscles were intact, indicative of no penetration. He tendered the two medical reports of the victims and were admitted collectively as exhibit P2. In his defence, the appellant totally denied the charge against him. He denied knowing neither the victims nor their parents. He testified that he met PW1, PW2 and PW3 at the court for the first time. The trial court convicted and sentenced the appellant for the offences charged as intimated above. His first appeal was not successful thus, this second appeal founded on ten grounds which we refrain from reproducing them save for ground ten for the reason to be unfolded soon. The complaint in ground ten states: 10. That the 1st appellate court erred both in law and fact by upholding the appellants conviction and sentence based on a case that was not proved to the hilt Before us, the appellant appeared in person with no legal representation whereas Ms. Lilian Rwetabura, learned Senior State Attorney and Ms. Esther Chale, learned State Attorney represented the respondent Republic. When afforded with an opportunity to amplify grounds of appeal, the appellant, wished to adopt them and urged us to allow the respondent to submit first, reserving the option to rejoin if need arises. Ms. Chale took the floor and outrightly supported the appeal based on ground ten of appeal that the charge was not proved to the hilt. She expanded several reasons for her stance. Firstly, she stated that PW2 and PW3 were not credible and reliable witnesses and their evidence were contradictory. She pointed out that their testimonies were received in contravention of section 127 (2) of the Tanzania Evidence Act [Cap 6 R.E. 2019] for want of promise to tell the truth. She also queried the omission to call the 3rd victim to testify as no reason was assigned for the omission. Emphasizing on the contradictions, she pointed out that PW2 affirmed that the appellant undressed only the 3rd victim and just ordered PW2 and PW3 to undress themselves before he sodomized each one of them taking turns. She also pointed out that PW4 negated the presence of the key ingredient of the offence; penetration in the anus. Regarding the issue of identification, Ms. Chale reasoned that PW1 named the appellant by the name Kiswabi, whereas PW2 and PW3 also referred to the appellant as Kiswabi and identified him during trial. Further, she argued that PW2 and PW3 did not explain any features of the 7 appellant. In addition to that, she pointed out procedural flaws in the identification parade conducted by PW8 and buttressed her argument with the case of Rashid George @ Mvungi & Another v. Republic (Criminal Appeal No. 424 of 2016) [2018] TZCA 244; (25 April 2018, TANZLII). Thus, she implored us to allow the appeal and the appellant be set free. The appellant on his side fully subscribed to the submissions of the respondent Republic and prayed to be set free. We wish to restate that, this being the second appeal, the Court, rarely interferes with concurrent findings of facts by the two lower courts save where either or both tower courts misapprehended the nature, substance, and quality of the evidence or violated some principie(s) of law or practice. See for instance, Mustafa Ally v. Republic (Criminal Appeal No. 103 of 2021) [2024] TZCA 550; (12 July 2024, TANZLII); The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Musa Mwaikunda v. The Republic [2006] T.L.R. 387. We will thus be guided accordingly. In determining the complaint on ground ten whether the prose cution case was proved to the hilt, we find it tempting to focus on the following issues as pointed out by Ms. Chale, and see whether it supports the appeal. The issues are; one, noncompliance with section 127 (2) of Cap 6, 8 two, identification of the culprits and three, credibility and reliability of PW2 and PW3 and contradictions of evidence between PW2, PW3 and PW4. On whether there was compliance with section 127 (2) of Cap 6, the first appellate court held that PW2 and PW3 promised to tell the truth before the trial court, and their evidence were properly taken. It supported its finding with case of Godfrey Wilson v. Republic (Criminal Appeal No. 168 of 2018) [2019] T2CA 109; (6 May 2019, TANZLII) regarding the procedure to procure evidence of a witness of tender age. We find it relevant to point out that, we are alive to the procedure of recording the evidence of a chiid of tender age stipulated under section 127 (2) of Cap 6; which grants permission to giving evidence without taking an oath but requires the witness to promise to tell the truth and not lies. We are also aware of the position that the law does not provide the procedure to arrive to the point of either administering an oath or procuring a promise from a witness of tender age that is why in Godfrey Wilson v. Republic (supra) we provided for the preliminary procedures to be followed. Ms. Chale made a point based on those procedures; that the trial court did not test the competence of PW2 and PW3 to see whether they 9 knew the meaning and nature of an oath and make a finding whether they were fit to give evidence under a promise and not under oath. She further argued that PW2 did not make a promise but rather stated that "she came to tell the truth', hence that was not a promise. On that account, she implored us to disregard their evidence. Starting with the iimb on procedure, it is not the first time we have faced an akin issue and been asked to disregard such evidence for want of compliance with the procedure. As intimated above in Godfrey Wilson v. Republic (supra), we have pronounced ourselves on this. It would be relevant to reiterate what we stated in Mohamed Jumanne v. Republic (Criminal Appeal No. 569 of 2021) [2024] TZCA 526; (8 July 2024, TANZLII) where the promise of the victim was not preceded by inquiry to assess her eligibility either to give evidence on oath or under a promise. We had this to say: - "It is glaring that the victim’s promise was not preceded by any inquiry by the trial magistrate. A follow up question is whether the absence o f the inquiry vitiated the victim's account Our answer is in the negative because according to section 127 (2) o f the Evidence Act, what is paramount is for the child witness to promise to tell the truth and not lies prior to giving evidence which must be reflected in the record. See: YUSUPH MOLO VS REPUBLIC' Criminal Appeal No. 343 o f 2017 and MSIBA LEONARD MCHERE KUMWAGA VS REPUBLIC, Criminal Appeal No. 550 o f 2015. In the premises, the law does not require that the inquiry preceding the promise must be recorded as suggested by the appellant In this regard, there is no dispute that PW1 did promise to tel! the truth before her evidence could be recorded " Similarly, our stance is reflected in Kastuli Charles @ Akoonay v. Republic (Criminal Appeal No. 414 of 2020) [2023] TZCA 17659;(26 September 2023, TANZLII). So, we hold,the omission by the trial court to indicate the record of the preliminary procedure to assess whether PW2 and PW3 were to give evidence under oath or promise to tell the truth, is not fatal. On the second limb, we find that the words used by PW2, do suffice to meet the requirements under section 127 (2) of Cap 6 in promising to tell the truth. To say the least, in Paul Dioniz v. Republic (Criminal Appeal No. 171 of 2018) [2020] TZCA 1840; (02 November 2020, TANZLII), we emphasized that where no promise to tell the truth is given, any statement by a witness indicating that he knows the meaning of saying ii or telling the truth may serve the purpose of the promise. We thus hold that there was no contravention of section 127 (2) of Cap 6. The next issue for our determination is identification of the appellant. We rightly from this very beginning accept that it is tainted with uncurable issues. As we have hinted herein above, none of the prosecution witnesses informed the trial court whether the appellant was familiar to them before the accusations. The evidence does not even allow us to infer such a fact since even the names of the victim were not a match; PW1, PW2, and PW3 identified the culprit as Kiswabi while the person charged is named Ally Selemani without demonstrating whether he is also known as Kiswabi. Unfortunately, PW8, the sole witness who testified before the trial court that Kiswabi and Ally Selemani is the same person. That being just part of the issues, it could not be well rested if we move to the next one without pointing out that the identification parade which was not preceded by a prior description of the suspect, like the one in question, remains a mere dock identification. For instance, see the Court's decision in Yosiala Nicholaus Marwa & 2 Others v. Republic (Criminal Appeal No. 193 of 2016) [2019] TZCA 147; (09 April 2019, TANZLII) where we restated that position. However, we noted that the first appellate court did not rely on the identification parade to uphold conviction, hence we find any determination is baseless. We are aware that the duty of assessing the reliability and credibility of a witness lays in the domain of the trial court. However, an appellate court may also do so by considering mainly the coherence and consistency of such evidence to other witnesses' evidence; see Allan Duller v. Republic (Criminal Appeal No. 367 of 2019) [2021] TZCA 689; (23 November 2021, TANZLII) and Bonifas Fidelis Abel v. Republic [2015] T.L.R. 156. Presumably, the testimony of a witness will always be true unless its veracity has been assailed to misrepresent facts established or has given fundamental contradictory or improbable evidence. Ms. Chale pointed out the issue of contradictory evidence upon which she also asked us to find that the evidence of PW2 and PW3 was not credible. She pointed out that the evidence of PW2, PW3 and PW4 was not consistent with one another. Firstly, unlike PW2 and PW3 who said that the appellant sodomized all three victims that is PW2, PW3 and another who was not called to testify, PW4 the medical officer contradicted this fact. He examined the victims and observed that there was no penetration of any blunt object in their respective anus. Secondly, PW2 testified that the appellant undressed 13 only the 3rd victim (not called as a witness) and ordered PW2 and PW3 to undress themselves, a fact which was contradicted by PW3 who said that they were all undressed by the appellant. The appellant had nothing to add to this. Moreover, the testimonies of PW2, PW3, and PW4 were not consistent as pointed out by Ms. Chale and we share her view in that respect. Adding to that, it would not be out of point if we restate what we stated in Chora s/o Samson @ Kiberiti v. Republic (Criminal Appeal No. 516 of 2019) [2021] TZCA 628; (1 November 2021, TANZLII) that we assess the credibility of a witness within the context of human realities. One would ask how could it be possible that one victim fell asleep after being sodomized, as PW3 did. That fact is reflected in his testimony. How was it possible that no sign of penetration was observed by PW4 while the victims were affirmed to have been sodomized? It could also be imaginary that if the kids were found with mud smeared all over their bodies, if sodomized, the culprit could also be found covered with mud too. The exception could be where the victims explained why the appellant when he arrested was not found with mud or that he was wet after he had cleaned himself. It would also raise an alarm if we were to act upon the above evidence in the absence of Happy who first saw the victims and informed 14 others, the absence of the 3rd victim and in a situation where no reasons were assigned for not calling him as a witness. We find that the 3rd victim was a material witness to clarify the whole situation. Altogether, the facts repel from human reality. From our observations, the contradictions raise issues on the commission of the offence touching on the root of the case. Such contradictions and other facts touch vital issues concerning the charged offence and dent the reliability and credibility of the witnesses. See for instance, Matera Simango @ Masana v. Republic (Criminal Appeal No. 517 of 2019) [2021] TZCA 621; (29 October 2021, TANZLII) and Elisha Edward v. Republic (Criminal Appeal No. 33 of 2018) [2021] TZCA 397; (24 August 2021, TANZLII). We rest assured that even lying witnesses are often impressive and or convincing [see Festo Mawata v. Republic, Criminal Appeal No. 299 of 2007 (unreported)], and here is one such case. Now that we have seen the doubts raised by the credibility and reliability of the key witnesses of the prosecution such as PW2, PW3 and PW4, that one of the key witnesses was not called to testify, the question whether the offence was established beyond reasonable doubt as per the charged offence, is answered in the negative. Section 154 (1) (a) of the Penal Code stipulates that the prosecution has to prove that the appellant carnally knew the victim against the order of nature. In Nyamasheki Malima @ Mengi v. Republic (Criminal Appeal No. of 2020) [2022] TZCA 326; (9 June 2022, TANZLII), the Court underscored that the prosecution must establish that the appellant had caused his penis to enter into the victim's anus. It would reduce nothing restating the obvious which was restated in Seleman Makumba v. Republic [2006] T.L.R 379 that in sexual offences the best evidence comes from the victim and the rest comes as corroborative evidence where necessary. See also, Godi Kasenegala v. Republic (Criminal Appeal No. 10 of 2008) [2010] TZCA 5; (2 September 2010, TANZLII) and Halfan Rajabu Mohamed v. Republic (Criminal Appeal No. 281 of 2020) [2023] TZCA 178; (6 April 2023, TANZLII). However, it is now settled that such evidence must be subjected to a credibility test before being acted upon to convict a person. In Mshenga Shaibu Khamis v. Director of Public Prosecutions (Criminal Appeal No. 62 of 2023) [2023] TZCA 17321; (12 June 2023, TANZLII), we stated that: ’7/7 the instant appeal, it is on record that; convicting the appellant, the trial court relied on the evidence o f 16 PW1 and the decision o f the Court in Sefeman Makumba (supra). It found that the evidence o f PW1, the victim was reiiabie and the best evidence in cases o f this nature. While we agree that the above is the correct position o f the law, we hasten to remark that, the same does not mean that such evidence should be taken wholesome, believed and acted upon to convict the accused person without considering its credibility and other circumstances surrounding the case." Also see, Mohamed Said v. Republic, (Criminal Appeal No. 145 of 2017) [2019] TZCA 252; (23 August 2019, TANZLII). In the light of the above excerpt, the conviction of the appellant which was based mainly on the evidence of PW2 and PW3 is not justified. In short, the charge against the appellant cannot be said to have been proved beyond reasonable doubt while the evidence of the key witnesses was not credible and the penetration however slight was not proven. For the above reasons, we have no hesitation to conclude that, the prosecution case was not proved to the hilt. The complaint in ground ten is merited. Thus, we allow the appeal, quash the appellant's conviction and set aside the sentence meted out on him. We order for his immediate release from prison unless his continued detention is in relation to some other lawful cause. DATED at DAR ES SALAAM this 5th day of February, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL Judgment delivered this 11th day of February, 2025 in the presence of the Appellant in person and Mr. Nassoro Katunga, learned Senior State Attorney for the Respondent via video conference, is hereby certified as a true copy of the original.