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I IN THE HIGH COURT OF T H E UNITED REPU BLIC O F TAN ZAN IA MOROGORO SUB-REGISTRY AT MOROGORO CRIM I NAL A P PEAL N0 .3 9 826 O F 2023 (Originating from the decision of the Kilombero District Court at Ifakara, Criminal Case No. 108 of 2023) ALOYCE MPOLE@KIOODOI............................................ APPELLANT VERSUS REPUBLIC.................................................................... RESPONDENT JUDGM ENT 8th FFbruary & 4h April, 2024 KAMUZORA, J . The Appellant Aloyce Mpole @ Kigodoi was charged before the District Court of Kiiombero (the trial court) for unnatural offence contrary to section 154 (1) (a) and (2) of the Pencil Code [Cap 16 R.E 2022]. It was alleged that on 10th June, 2023 the appellant called the victim into his house where he lives alone and led to the victim that he wanted to apply herbal medication to his buttocks. That, the victim agreed and the appellant undressed the victim and undressed himself Pag e 1 o f 2 2 and then applied oil to the victim's buttocks before he proceeded to insert his penis into the victims anus. That, the victim felt pain but he was warned not to disclose the ordeal to anyone. "ITiat, the victim kept silent until the next day when he narrated the story to his mother. That, the mother informed her husband and the matter was reported to the police station. During hearing before the trial court, the prosecution side paraded six witnesses and one exhibit (PF3) and for the defence case, the appellcint defended himself and presented two more witnesses. The trial court was satisfied with the prosecution evidence hence, convicted and sentenced the appellant to serve life imprisonment. Being aggrieved by that decision, the appellant brought this appeal challenging the proceedings, judgment, conviction and sentence thereof. The following are the grounds of appeal: - 1 . That, the tria/ magistrate erred in law and facts in deciding the case in favour o f the respondent, withou t sufficien t evidence and exhibits to sustain the conviction. 2. T a, the tria l magistrate erred in law and /acts in dec/ding the case in favour o f the respondent wM e the offence charged against the appe//anf was not proved beyond reasonab/e douhf. 2. That:, the tria l magistrate erred in law and fact? by convicting the appellan t wh/e the two elements of offence (act Reus and mens rea) were not established and witihout considering the Appellant's Pag e 2 o f 2 2 V evid ence and mitigation factors. s That, the tria l m agistrate erred in law and facts by convicting and sentencing the appellant to rave mandatory life im prisonm ent w hile the ra id m agistrate failed to records properly the proceeding and evaluate the evidence adduced by the Appellant. 5. That, the tria l Magistrate erred in law and facts in convicting and sentencing the appellant to serve mandatory life im prisonm ent while there was no connection or p ro o f o f unnatural offence. 6. That, the tria l m agistrate m isdirected him self by convicting and sentencing the Appellant basing on his own belief or assumption that PW 2 words was nothing than the truth without any proo f thereof and by ignoring the Appellant's defence. When the matter was called for hearing, parties opted to argue the appeal by way of written submissions. In his submission \n support of appeal the appellant joined all grounds and his submission was based on the ground that "the tria l Magistrate erred in law and facts in convicting the appellant while the case was no t proved beyond reasonable doubt." He argued that in criminal cases the Prosecution has a statutory duty to prove the charge against the appellant beyond all reasonable doubts . He referred the cases of W oodm ighton V s. D P P [1935] AC . 6 2, Chris tina S /O Ka le and Rw ekaza S /O Be nard V s. Re public, [1992] T.L.R, 302, and Ma rwa W ang iti Mw ita and an o th er V s. Re public, [2001] T.L.R, 39. He insisted that, the prosecution side failed Pp g e 3 o f 2 2 4 to prove the case for failure to prove the exact date and time the offence was allegedly committed and whether the appellant was present at the a ime scene. He added that, contrary to what was captured by the trial magistrate in his judgement, no record showing that the appellant admitted to be at the crime scene. He was of the view that since no DNA test was conducted, there is nothing suggesting that the appellant penetrated the victim. The appellant further submitted that the trial Magistrate misdirected himself by deciding the case based on assumptions without any proof. "ITiat, the trial magistrate assumed facts when he stated in his j udgment that it is possible that the appellant was present at the crime scene early before 06.00pm. He was of the view that, since the prosecution evidence shows that the incident occurred in the evenrng without specifying the exact time, the conclusion based on time is an assumed fact which cannot prove charges against the appellant:. The appellant also submitted that he is aware that in rape cases or sexual offences the best evidence should come from the victim. He referred the case of Selem ani Ma k umba V s . Republic, [2006] T.L.R 379 . Hie however insisted that for the Court to rely solely on the testimony of a child of tender age or the victim of sexual offence, it must satisfy itself by assessing the credibility, truthfulness and reliabliity Pa g e 4 o f 22 ri of such evidence. TTiat, the court must be satisfied that the witness in question is telling nothing but the truth. He referred the provision of Section 127(6) of the Evidence Act;, [Cap.6 R.E 2022] and the Court of Appeal decision in the Case of M ohamed Said V. R Criminal Appeal No. 145 of 2017 (Unreported). He argued that;, the determination of credibility, truthfulness and reliability of a witness cannot be made m isolation of other pieces of the evidence in records and the circumstances surrounding the case. He referred the case of Shaban Da ud V. R, Criminal Appeal No. 28 of 2000 (unreported). He added that j in assessing credibility of a witness, it is not only the demeanour of a I i witness to be considered but also his or her position, character, i antecedents and his (or heir probable motive for giving evidence in court. Reference was made to the case of O nasis Vs. V e rg o ttis [1968] 2 Lloyds, 403 at page 431. Hhe appellant was of the view that the prosecution evidence before the trial court was insufficient of prove beyond all reasonable doubt because; one, that PW2 (victim) is the son of PW1 and PW3 who were the tenants in the appellant's house who might have therr own interest to serve by fabricating evidence against the appellant hoping to gain a free place to live. Two, that the offence was allegedly committed : on 10/06/2023 and allegedly discovered by the PW1 on 11/06/2023 ait | ! Pa g e 5 o f 2 2 04:00pm and there is no evidence on the nature of the fluid found in the victim's anus and the kind of medicine purported to be applied to the victim's anus. Three that the evidence of PW1 and PW3 was in material contradiction in respect of the date to when the offence was discovered. TTiat, while PW1 stated that she discovered the ordeal on 11.06.2023 at 04:00pm and informed her husband (PW3), the said husband testified that he was informed about the offence on 10.06.2023 by his wife. To him, such evidence creates doubt suggesting that the same was fabricated against the appellant for the reasons best known by the witnesses. Four, that the evidence of PW5 (doctor) shows that he did not find sperms in PW2's anus on 11.06.2023 while PW1 and PW3 alleged that they found fluid flowing from PW2's anus. T a t, the doctor suspected that the child was penetrated meaning that he was not sure of whether the child was penetrated or not. TTiat, the doctors evidence and the examination report do not show the person who penetrated the victim and the DNA test was not conducted to clear the doubt. He insisted that the doctor's oral evidence and the PF3 were not enough to prove the offence against the appeHant . He thus urged this court to consider the doubts in favour of the appellant. The appellant further submitted that the prosecution side failed to prove the time and place where the offence was committed. That, there Page 6 o f 2 2 is no assessment of evidence on whether the victim identified the person who committed the alleged offence. He insisted that the evidence from the defence witnesses supported each other proving that the appellant was not at the scene of crime but the trial magistrate opted to believe the implausible evidence from the prosecution witnesses. He referred the cases of A loyce Mar l d adi V s . R, Criminal Appeal No.208 of 2016 (Unreported), P a trick Sanga V s . R, Criminal Appeal No. 213 of 2008 (unreported), Bahati Makeja V s . R, Criminal Appeal No. 118 of 2006 (unreported) and W ilfred Lukago Vs. R, (1994) T .L.R 189. He urged this court to consider and hold that the evidence of PW1, PW2 and PW3 was a mere fabrication against the appellant as their testimonies were incredible, untruthful, doubtful and improbable or implausible to establish any conviction. The appellant also submitted that the trial court wrongly disregarded the appellant's defence of alibi which was supported by PW2 and DW3. That, it is the principle of law that no duty is cast on the accused person to prove his innocence but to raise doubt against the prosecution case. He referred the cases of Rashid A lly Vs. R, [1987] T.L.R 97, Rehani Said Nyam l la V.R, Criminal Appeal No. 222 of 2019 (unreported) . He insisted that the trial Magistrate misdirected himself for not considering and properly analyzing the defence evidence thus, Pa g e 7 o f 22 occasioning injustice to the appellant. He referred the case of Hussein Id di and A n other V s . Re public [1986] T.L.R 166. He added that the trial court failed to comply with the principle of law which requires the j udgment to show evaluation of all evidence, the decision and reason for the decision . He referred the case of Leonard Mw anashoka Vs. R, Criminal Appeal NO. 226 of 2014 (unreported) and the case of Y asi ni S / 0 Mwakapala Vs. the Re public, Criminal Appeal No. 13 of 2012.. He was of the VieW that, the trial court's holding that defence side failed to produce exhibits or documents to support the defence case was a misdirection by the trial magistrate trying to shifting the onus of proof to the appellant. He concluded with a prayer that the appeal be allowed and the appellant's conviction and sentence be set aside. In reply, the respondent acknowledged the principle of the law that the prosecution side barres the burden of proving the case beyond reasonable doubt. He referred the principle in M ilburn v Regina [1954]] T LR 27 . He submitted that prosecution side was duty bound to prove that the unnatural offense was committed and the appellant was responsible for the said offense. To him, the evidence by the doctor and the report (PF3) tendered proved penetration to the victim s anus. That, the report revealed that the victim's anus was found with fresh bruises Pa g e 8 o f 2 2 - and loose sphincter muscles evidencing penetration of anus by a blunt object. He added that the the victim's evidence was consistent proving that it was the appellant who penetrated him. He urged this court find that the victim's evidence to be the best evidence as there is no any evidence to suggest that he had any reason to lie against the appellant;. He referred the case of Selem an M a kum ba V s. Re public, [2006] TLR 379 to which a principle was set that the best evidence in proving sexual offence is that of the victim . The respondent insisted that although the victim's evidence can solely be relied upon on conviction, additionally, the same was corroborated by other witnesses who are PW1 and PW3. T ia t, from prosecution evidence, it is the respondent's view that unnatural offence was committed by the appellant against the victim. On the appellant's argument that DNA test was necessary but not conducted, the respondent submitted that is not necessay to invoke the DNA test to prove unnatural offence. To support his submission, he referred the case of Robert A ndondile Ko m bo V Republic, Criminal Appeal No 465 of 2017 . He insisted on the principle that the best evidence in sexual offenses is that of the victim. He was of the view that the victim gave direct evidence on how the appellant sodomizedas he also knew the appellant. That, DNA could have been additional evidence but not the only evidence to prove sodomy, the absence of which, the Pa g e 9 o f 2 2 prosecution case would have not collapsed . He referred the Court of Appeal deciSion on the requirement of DNA test to prove rape in Jum a Mahamudu V is. Re p u blic, Criminal Appeal No 47 of 2013, CAT (unreported). He insisted that even in the absence of DNA test, the available prosecution evidence proved that the appellant penetrated the victim. On the appellant's argument that there is contradictory evidence from the prosecution witnesses, the respondent denied the contradiction and submitted that there was a clear sequence in the prosecution witnesses' stories. He insisted that there were no any contradictions or inconsistences in the prosecution evidence. He added that:, even if this court finds contractions or inconsistences in prosecution evidence, this court be pleased to find the alleged contractions as minor which do not in anyway waterdown the prosecution case as they do not go to the very root of the case . Reference was made to the case of Dic kson Elia Nsam ba Sha pw ata Vs . Re public, Criminal Appeal No. 92 of 2007 and the case of Mzee Ally Mwinyimkuu @ Ba bu Seya Vs. Re public, Criminal Appeal 499 of 2017 . He insisted that the contradiction on dates the incident was discovered between PW1 and PW3 was because of the time which has passed from the date of the incident to the date of testifying in court P age 1 0 o f 212 On the argument that the trial magistrate erred for not giving weight to the defence of alibi, the respondent was of the opinion that the appellant's defence of alibi was considered by the trial court and given its deservingly weight despite non- compliance to the requirement of section 194 (4) and (5) of the Criminal Procedure Act, Cap 20). The respondent added that the trial magistrate analysed evidence of both the prosecution side and that of the defence, raised two issues and responded to the issues and gave reasons for the decision . He was of the view that, if it discovered that the defence evidence was not considered by the trial court, this court being the first appellate court be pleased to step into the shoes of the trial court and re-evaluate the evidence and come out with its own findings. He referred the case of DPP Vs. Le ngai Ole Sabaya and 2 others, Criminal Appeal No. 2311 of 2022, Court of Appeal of Tanzania, at Arusha. In concluding, the respondent urged this court to hold that the prosecution managed to prove their case beyond reasonable doubt. He prayed for this court to uphold the decision of the trial court and dismiss the appeal in its entirety. In rejoinder, the appellant reiterated his submission in chief and insisted on the existence of contradictions in prosecution evidence . He was of the view that, had the trial court considered those contractions Pag e 11 o f 2 2 and the appellant's defence, it would have arrived to a different conclusion. Reference was made to the case of Jane W anjiru K in yua V . Re public, [2006] e KLR and the case of S hafii A bdallaham an M bonja V. The Republic, Criminal Appeal No.104 of 2017 (unreported). On argUment based on DNA test, the appellant maintained that in the circUmstance of this case, it was necessary for the DNA Test to be conducted to ascertain if the mucus/slippery fluid alleged to flow from PW2's anus was actually sperms and whose sperms was that . He was of the view that the case authorities relied on by the trial Court and the respondent are distinguishable to the case at hand. He insisted that:, failure to conduct DNA test left a lot of doubts on the person responsible to the offence . He prayed for the appeal to be allowed. From the grounds of appeal and submission by the parties, three issues need to be determined; one, whether DNA test was necessary to prove unnatural offence, tw o, whether the trial court failed to properly analyse evidence and consider the appellant's defence of alibi, three, whether the trial court was correct to conclude that unnatural offence was proved beyond reasonable doubt against the appellant. On the first issue regarding DNA test:, I do nett agree with the appellant's contention that DNA test was necessary in the circumstance Pag e 1 2 o f 212 of this case. The appellant wants this court to believe that when the witnesses mentioned that they saw the victim's anus discharging fluid/mucus that must be sperms and it was necessary that the said fluid be examined by DNA test to ascertain if it belongs to the appellant. In his evidence and report (the PF3), the doctor mentioned that he conducted laboratory test to the victim but found no sperms. He however did not mention if medically, anyone who is penetrated must discharge sperms. Since no sperms were found at the time the victim was examined, it was obvious that DNA test was immaterial and could not yield any important result. However, the existence of sperms in the victim's body in my view, ss not in itseff a conclusion that the victim was or was not penetrated. Apart from sperms, there can be other evidence to prove that the victim was penetrated. It is my settled view that:, in the circumstance of this case where no sperms were found in the victim's body, DNA test was not necessary to support the allegation that the appellant penetrated the victim against the order of nature. It was therefore correct for the trial court to assess other available evidence if it proved the offence against the appelant. On the second issue that the trial court failed to properly analyse evidence and consider the appellant's defence of alibi, I have a clear scrutiny of the appellant's defence and trial court's j udgment. There is Pag e 13 o f 2 2 no doubt that the trial court summarised evidence of both sides and raised issues in need to determine if the offence charged against the appellant was proved . The trial court also responded to the issues and in doing so it discussed the weight of evidence from both the prosecution and defence. At page 6 to 7 of its j udgment the triai court captured the appellant's defence of alibi in the following words; "The accused person a//b/ that he was at Kiberege on the m ae /73/ date cannot hold water in the present case because o f two reasons one being the iega/ rec rement to issue notice under sect/on i 9 ( 4 ) o f the CPAI and second want of proof that really on the materi^ day he returned at 06.00am. While DW3 said the accused person and DW2 le ft K/berege at 0300pm the accused person c/aimed that they le ft Kiberege a t 05.00pm, it therefore possible that the accused person was present at the crime scene early than 06.00pm. Alt any rate the most /mpo/tant thing is that the accused person was present at the crime scene on the material date and at the material time because the prosecution evidence claim that the /nc/dent occurred /n the evening without specifically specifying the exact time." From the above quotation, it is clear that the trial court considered the appellant's alibi and gave reason for according it little weight. The reasons were that, it did not meet legal requirement and was not supported by evidence to prove that the appellant was not at the scene on the material date of incident. TTius, the claim that the defence of alibi Pag e 14 o f 2 2 was not considered in unfounded. On the third issue, both parties agree that statutory burden of proof in criminal cases lies on the prosecution side. The question is whether the available prosecution evidence proved the case against the appellant on the required standard that is, beyond all shadows of doubt:. While the respondent argued that the prosecution evidence was direct proving the case, the appellant argued that the prosecution evidence was full of contradictions and could not be safely relied upon to convict the appellant. The contradictions pointed out includes; the time and place the offence was discovered, nature of the herbal medication allegedly applied on the victim by the appellant and nature of fluid found on the victim's anus. Regarding the contradiction on time and place the offence was discovered, the appellant argued that the offence was allegedly committed on 10/06/2023 and discovered by the PW1 on 11/06/2023 at 04:00pm. That, while PW1 stated that she discovered the ordeal on 11.06.2023 at 04:00pm and informed her husband (PW3), the said husband testified that he was informed about the offence on 10.06.2023 by his wife. Going through evidence in record, PW3 mentioned that on 10/06/2024 he was at Ifakara , That:, he received information that his Pag e 1 5 o f 2 2 son was sodomised . When he was cross examined by the accused/appellant, he mentioned that he was informed by his wife that the incident took place on 10/06/2023. From PW3's evidence, one will realise that he did not mention the exact date he received information but he mentioned the exact date to when the incident took place. In fact, there ss no any material contradiction in the evidence of PW1 and PW3 which could make their evidence unreliable. The contention by the appellant that the evidence of PW1 and PW3 creates doubt suggesting that the same was fabricated against the appellant is also unfounded . The appellant never established before the trial court or before this court any plausible reason for the witnesses to fabricate the case against him . The contention that PW2 (victim) is the son of PW1 and PW3 who were the tenants in the appellant's house who might have therr own interest to serve by fabricating evidence against the appellant hoping to gain a free place to live is unfounded. It is an assumption which was not even raised by the appellant in his defence when testifying before the trial court. Even when he was cross examined, the appellant never mentioned if he noticed any ill motive from his tenants who appeared as witnesses in court. He admitted that there was no conflict betweenhim and his tenants thus, to claim that the said tenants framed him intending to benefit from ther free stay in P age 1 6 o f 22 the house is an afterthought;. Regarding the contradiction between the doctor's evidence and that of the victim's parents (PW1 and PW3), I have a second scrutiny in their evidence . It is clear that the mother mentioned that she noticed some mucus/slippery fluid flowing from the victim's anus and bruises;. The father also noticed bruises in the victim's anus and the same was discharging some fluid . Neither of the two witnesses mentioned to have seen sperms in the victim's body or anus. The doctor's physical examination revealed that there were fresh bruises on the anus and loose sphincter muscles evidencing penetration of the anus by a blunt object. He also conducted laboratory examination to check whether there were sperms or sexually transmitted diseases but found none. Their evidence corroborates each other save that the doctor did not mention if at the time he examined the victim, he noticed any discharge from the victim's anus . That in itself cannot be considered material contradiction because there was no explanation if the victim was cleaned before he was sent to hospital and examined by the doctor;. Since main features of the victim's appearance at the time he was examined are similar to both witnesses, I find no material contradiction which could make this court doubt ther evidence. On the argument that the doctor's evidence and the examination P a ge 1 7 o f 22 I report do not show the person who penetrated the victim, I find such argument U seless . As per his evidence, the doctor was requested to conduct medical examination on the victim to ascertain if there was evidence of penetration into the anus . The purpose was not to find the person responsible for penetration. T i us, even the argument that DNA test was not conducted to clear the doubt could not stand in the matter at hand . It is clear that the doctor's oral evidence and the PF3 proved the the victim was penetrated and such evidence did not intend to prove the person responsible for the penetration. I therefore find no inconsistence in the doctor's evidence. Regarding the inconsistence on the nature of the fluid found in the victim's anus, I reiterate my discussion above. In addition, the medical examination did not reveal if the victim's anus had sperms but that in itself did not obliterate the fact that the victim was penetrated as he was found with bruises in the anus as well as loose sphincter muscles which are clear evidence of penetration. On the argument that the kind of medicine purported to be applied to the v ictim's anus was not determined, this court finds the same baseless . T ie re is no evidence revealing that the said medicine was recovered from the person alleged to have applied the same to the victim and made p a t of evidence . The same could not be assessed if Pa g e 18 o f 2 2 . not recovered. On the argument that the offence was not proved beyond reasonable doubt, I had a second scrutiny on the evidence from both sides. The victim (PW2) is a child aged 7 years old but his version of story is very clear. He knew the appellant as Babu Aloyce because they reside in the same compound save for the rooms. He explained that Babu Aloyce lives alone at his house and that fact was not disputed by the appellant. He testified that Babu Aloyce called him to his room and inserted his "dudu" meaning penis into his anus and asked him not to disclose to anyone but on next day, he told his mother. The victim described the utensils inside the room where he was sent by Mzee Aloyce and was also asked to show the room to the police officer. The victim's evidence was supported by his mother (PW1) who discovered that the victim's pants were wet. She asked the victim of what happened and he mentioned to her that he was penetrated by the appellant a day before . She examined the victim and saw bruises and fluid like mucus coming from the victim's anus . She phoned her husband who also went home and examined the victim and discovered the same. TTiey reported at Ifakara police station where they were issued with PF3 and they sent the victim to the hospital. PW5 is the doctor who ! examined the victim and he confirmed that the victim was penetrated as Pag e 19 o f 2 2 he found bruised anus and loosen sphincter muscles of the anus proving that the victim was penetrated by a blunt object. His evidence corroborates that of the victim and the victim mentioned the appellant as the person who penetrated him. During investigation, PW4 mentioned that they asked the victim to show them the room to where the incident took place. The victim mentioned items including the bed to which he claimed that he was laid by the appellant during commission of the offence . When they entered the room, they saw all items mentioned by the victim. That was also witnessed by PW6 who is the street chairman. The prosecution evidence build unbroken chain of event proving that the victim was penetrated by the appellant and I agree with the trial court's conclusion that the appellant's defence that he was not at the scene on the date on incident was weak to disprove the strong prosecution evidence . The appellant claimed that on the material date of incident he left to Kiberege village where he was working in the construction site with Sefu Mkula and Chriss . He claimed that he left Kiberege at 05:00pm to Ifakara with a motorcycle and was at home by 06:00pm. "T ie appellant presented his son Christos Mpole (DW2) and Seif Mohamed (DW3) to corroborate his story that they were working P age 2 0 o f 2 2 together at Kiberege constructing a toilet. However, while the appellant claimed that they stayed at Kiberege until 05:00pm DW2 and DW3 claimed that the appellant left Kiberege at 03:00pm. DW2 supported the fart that they reached at Ifakara at 06:00pm and left the appellant there and went to his home Idete. From such evidence the appellant was only able to j ustify that he left his home for work on 10th June 2023 but it is evident that he returned home on that day. The prosecution evidence revealed that the victim was sodomised on that day without specifying the exact time . The mother only claimed that she left: his child at home going out for errands only to learn on the next day that her child was sexually abused. In his testimony, the child did not mention the exact time he was sexually abused and being a child, no one could expect him to memorise the time. T i us, since there is evidence that on that date there was a time, the appellant was at home, that was a probable time the offence was committed . Committing unnatural offence did not need a person to be at home the whole day. Thus, the contention by the appellant that the trial court assumed fact cannot stand . The victim knew the appellant and mentioned him immediately when he was asked by his mother of what befallen him . T here is nothing showing that there were grudges between the appellant and victim's famlly that could form ill motive against the Page 2 1 o f 2 2 appellant . The trial court therefore was correct to conclude that the appellant was at the scene on the date the crime was committed and he was responsible for the commission of the offence;. From the above analysis, this court is satisfied that the offence was proved beyond reasonable doubt and the appellant was properry convicted and sentenced by the trial court. The appeal is therefore devoid of merit and it is hereby dismissed in its entirety. DATED at MOROGORO this 04th Day of April, 2024. Pa g e 22 o f 2 2